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storage 

US  922  AME  ,  . 

A  Setection  of  cases  on  the  '"^^  0\__ . 
HARVARD   LAW   LIBRARY  APM1794 


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A  SELECTIQN  OF  CASES 

ON 

THE  LAW  OF  TORTS 

BY 

JAMES  BABR  AMES  and  JEREMIAH  SMITH 


NEW  EDITION  BY 

ROSCOE  POUND 

CAKTER  PROFESSOR  OF  JURISPRUUENCB 
IN  HARVARD  UNIVERSITT 


CAMBRIDGE 

HARVARD  UNIVERSITY  PRESS 

1919 


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s 

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A    "5  (  3  2. 


This  edition  was  first  published  in  four  parts.  Part  I  (pp.  1- 
167)  appeared  September  25,  1916;  part  II  (pp.  168-368),  De- 
cember 1,  1916;  part  III  (pp.  369-618),  February  20,  1917,  and 
part  IV  (pp.  619-1008),  April  23,  1917. 

Copyright,  1893  and  1909,  by  James  Babr  Ames. 
Copyright,  1893  and  1909,  by  Jeremiah  Smith. 
Copjrright,  1910,  by  Richahd  Ames. 
Copyright,  1916  and  1917,  by  Roscoe  Pound, 


OCT  2     1919 


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PREFACE 

The  chief  occasion  for  this  edition  is  the  change  in  the  first-year 
curriculum  in  Harvard  Law  School,  which  assigned  to  other  courses 
many  things  formerly  appropriated  to  the  course  in  the  Law  of  Torts 
and  hence  treated  in  former  editions.  Thus  causation  is  now  treated 
in  a  course  on  the  Principles  of  Legal  Liability;  certain  excuses,  such  as 
consent  and  self-defence,  are  dealt  with  in  that  course,  and  trespass  to 
land  and  conversion,  which  analytically  might  well  be  treated  in  the 
first  chapter  of  this  book,  have  been  thought  more  appropriate  to  the 
coiu-se  on  the  Law  of  Property.  But  the  student  should  be  warned  that 
such  matters  of  arrangement  do  not  inhere  in  the  law.  They  are  mere 
matters  of  pedagogical  expediency.  He  should  bear  in  mind  that  the 
law  is  a  unit  and  should  be  on  his  guard  against  thinking  of  it  as  made 
up  of  separate  water-tight  compartments.  General  principles  which 
are  of  prime  importance  in  connection  with  the  subjects  treated  in  this 
book  are  dealt  with  primarily  in  the  courses  on  Property  and  on 
Criminal  Law.  Not  the  least  important  task  for  the  student  is  to  seek 
tonstantiy  for  these  relations  between  the  subjects  studied. 

Again,  the  student  should  be  warned  that  the  arrangement  proceeds 
upon  pedagogical  considerations  and  does  not  seek  to  set  forth  an  anar 
lytical  system.  System  is  to  be  derived  from  study  of  the  cases.  The 
effort  of  the  student  to  make  one  in  connection  with  his  summaries  for 
review  and  his  reading  of  the  systematic  discussions  referred  to  in  the 
notes  will  do  more  for  him  than  learning  in  advance  a  system  laid  out 
by  some  one  else.  Similar  reasons  have  led  to  omission  of  subheadings 
as  far  as  consistent  with  convenience,  leaving  it  to  the  student  to 
S3rstemati2e  the  main  headings  for  himself.  For  other  purposes  an 
index  is  offered  instead. 

In  arrangement  of  the  cases  advantage  has  been  taken  of  the  experi- 
ence of  the  late  Dean  Thayer,  who  had  given  the  matter  anxious  con- 
sideration for  some  years.  Indeed  the  instinct  of  Dean  Ames  for 
teachable  cases,  the  sagacity  of  Judge  Smith  in  finding  significant 
cases,  and  the  judgment  of  Dean  Thayer  in  matters  of  arrangement 
left  littie  of  moment  for  the  present  editor  to  do. 

ROSCX)E  POUND 
Cambbido]:,  July  18, 1917 

Note.  The  present  volume  is  a  reprint  of  the  edition  of  1916-17 
which  was  not  stereotyped  and  was  soon  exhausted.  A  few  recent 
decisions  have  been  added  in  the  notes.   Otherwise  there  is  no  change. 


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TABLE  OF  CONTENTS 

PART  I 

INTERFERENCE  WITH  THE  PERSON  OR  TANGIBLE 

PROPERTY 

Chafteb  I 

Intentional  Interference  paob 

Section  1.  Assault  and  Battery 1 

Section  2.  Imprisonment 19 

Chapter  II 

Nsgligent  Interference 

Section  1.  Negligence  as  a  ground  of  liability 29 

Section  2.  Interests  secured 45 

Section  3.  The  standard  of  care 63 

Section  4.  Proof  of  negligence 98 

Section  5.  The  Duty  of  Care  —  Misfeasance  and  Non- 
feasance     120 

Section  6.  Liability  of  occupiers  of  premises 147  ' 

Section  7.  Liability  to  third  persons  of  maker  or  vendor  of 

a  chattel 228 

Section  8.  Contributory  culpable  conduct  of  plaintiff    .    .  263 

Chapter  HI 

Unintended  Non-negugent  Interference 

Section  1.  Trespass  on  land  by  animals 404 

Section  2.  Injuries  by  animals 419 

Section  3.  Dangerous  use  of  land 452 

Section  4.  Violation  of  statutory  duty 504 


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VI  CONTENTS 


PART  II 


INTERFERENCE  WITH  GENERAL  SUBSTANCE  OR 
INTERESTS  IN  INTANGIBLE  TfflNGS 


Chapteb  IV 

PAOS 

Deceit 521 


Chapteb  V 
Mauctous  Pbosecution  and  Abuse  op  Pbocess 620 

Chapteb  VI 
Defamation 657 

Chapteb  VII 
Intebfebbnce  with  Pbivacy 797 

Chapteb  VIII 
Intebfebence  with  Advantageous  Relations 807 


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TABLE  OF  CASES 


PAGE 

Aiken  v.  Holyoke  Street  R.  Co 337 

Akera  ».  Chicago  R.  Co 156 

Alden V.Wright   695 

Aldrich  V,  Scribner 576 

AUen  V.  Flood  939 

Allsop  V.  Allflop 808 

Andi«w8  V.  Jackson  555 

Bachelder  v.  Heagan   496 

Banks  v,  Braman  340 

Bamee  t>.  Campbell   732 

Barr  v,  Essex  Trades  Council 998 

Barrows  ».  Bell 729 

Beach  v.  Hancock 7 

Beals  V,  Thompson 749 

Beehler  v.  Daniels 225 

Beinhom  r.  Griswold 415 

Bell  r.  Hansley  18 

Benedick  v.  Potts 115 

Bemina,  The 352 

^  Bird  V,  Jones 24 

j  BisaiUon  v.  Blood 370 

V  Black  V.  New  York,  N.  H.  &  H.  R. 

Co 129 

Blood  Balm  Co.  v.  Cooper  233 

,  Blyth  9.  Birmingham  Waterworks 

Co 67 

Bolchr.  Smith    177 

Bond  V.  Chapin 655 

Bostock-Ferari  Amusement  Co.  v, 

Brocksmith  427 

Bosworth  V,  Inhabitants  of  Swansey  379 

Bowenr.  Hall 884 

Box  V,  Jubb 475 

BrattleboTo  t;.  Wait  510 

British  Columbia  Electric  R.  Co.  v. 

Loach 302 

Bromage  v.  Prosser 662 

Brooker  ».  CoflBn    '! 683 

Brown  v.  Collins 482 

>.  Brown  v.  Kendall 30 

4^rown  V.  Randall 627 

Buch  V,  Amory  Mfg.  Co 160 

Bugg  V.  Wertheimer-Schwarts 

Shoe  Co 549 

Bullock  V.  Babcock 95 

Buirill  V,  Stevens  548 


1^, 


PAGE 

utterfield  v.  Barber 595 

Butterfield  v.  Forrester  274 

Butterly  v.  Mayor  of  Drogheda  . .  301 
Byne  v,  Moore    624 

Cabot  V,  Christie    684 

Campbell  v.  Boyd 183 

Campbell  v.  Spottiswoode 769 

Carmody  v.  Boston  Gas  Light  Co.  113 

Carpenter  v.  Bailey   766 

Carr  v.  Hood 772 

Carskaddon  v.  Mills 191 

Carter  v.  Papineau 757 

Chambers  v.  Robinson 624 

Chapman  v.  Pickersgill  644 

Child  tt.  Affleck 738 

Cincinnati  &  Z.  R.  Co.  v.  Smith  . .  150 

Clark  t>.  Molyneux 763 

Cleveland  R.  Co.  v.  Klee 327 

Cleveland  Rollmg  Mill  Co.  v,  Cor- 

rigan 88 

Cloon  V.  Gerry    632 

ClutterbUck  v.  Chaffers 657 

Cole  V.  Turner 12 

Consolidated  Traction  Co.  v.  Hone  371 

Cooke  V.  Midland  G.  W.  Ry 173 

Cooley  on  Torts  (2  ed.)  398-400. .  409 

Cooper  V.  Seavems 685 

Corcoran  v.  Corcoran 811 

Cordiner  v,  Los  Angeles  Traction 

Co 281 

Coward  v,  Baddeley 13 

Cox  V,  Bmrbidge  438 

Coxhead  v,  Richards   740 

Crowley  v.  Groonell  437 

Culbertson  v.  Crescent  City  R.  Co.  329 

Davies  v.  Gardiner 807 

Davies  v.  Mann    275  ^ 

Davies  v,  Solomon  809 

Davis  V,  Shepstone 792 

Decker  v.  Gammon    441 

DeGray  v.  Miuray 434 

Delacroix  v.  Thevenot 659 

De  Marentille  r.  Oliver 15 

Deming  v.  Darling 553 

Denver  Electric  Co.  v.  Simpson  . .     77 


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TABLE   OF  CASES 


PAGE 

Depue  V,  Flatau  137 

Dotty  ».  Peek  563 

DeS.  ».DeS 1 

Dickson  v,  McCoy 440 

Dilworth's  Appeal  602 

Dolphin  V.  Worcester  Street  R. 

Co 86 

Dorr  V,  Cory  661 

Doyle  V,  Vance 445 

Drown  v.  Northern  Ohio  Traction 

Co 296 

Dudley  v.  Briggs 869 

Dulieu  V.  White  &  Sons 60 

Dulin  ».  Bailey 862 

Dunshee  V.  Standard  Oil  Co 923 

Dyerson  v.  Union  Facif  c  R.  Co.  .  324 

Eager  v,  Grimwood   866 

Eastern  Trust  &  Banking  Co.  v. 

Cunningham 616 

Edgington  v,  fltzmaurice 537 

E.  Hulton  4k  Co.  V.  Jones   674 

England,    Maritime   Conventions 

Act,  1911,  §  1 274 

England,  Workmen's  Compensa- 
tion Act,  1906,  §  1  (c)   269 

Evans  v,  Walton 868 

Fargo  Gas  &  Coke  Co.  v.  Fargo  Gas 

&  Electric  Co 608 

Fechley  t^.  Springfield  Traction  Co.  364 
Filbum  V.  People's  Palace  &  Aqua- 
rium Co 422 

Fisher  v.  Bristow   627 

yFisher  v.  Feige 938 

V/Fletcher  v,  Rylands 452 

Flight  V.  Leman   651 

Flint  &  Walling  Mfg.  Co.  v.  Beck- 
ett     120 

Foshay  v,  Ferguson   630 

Foes  V.  Hildreth  695 

Foster  v,  Charles 588 

Fotheringham   v.   Adam  Express 

Co 23 

Fottler  V,  Moseley 599,  601 

Freeman  v.  Venner 597 

Frost  V.  Eastern  R.  Co 170 

Fry  v.  Smellie  581 

Fuller  V,  Illinois  Central  R.  Co.  . .  299 

Gahagan  v.  Boston  &  Mame  R.  . .  317 

Galena  R.  Co.  v.  Jacobs 267 

Gallagher  v.  Brunei 539 

Gallagher  v,  Humphrey 186 


PAGB 

Galveston,  H.  A  S.  A.  R.  Co.  v. 

Spinks 495 

Garfield   Coal   Co.   v.   Rockland 

Lime  Co 202 

Garret  v.  Taylor  863 

Gautret  v.  Egerton 179 

Genner  v.  Sparkes    19 

Georgia  Pacific  R.  Co.  v,  Lee 343 

Giles  V.  Walker 493 

Glamorgan    Coal    Co.    v.    South 

Wales  Miners'  Federation 887 

Gorris  v.  Scott 516 

Grainger  v.  Hill 653 

Haddrick  v,  Heslop   639 

Halberstadt  v.  New  York  Life  In- 

siurance  Co 620 

Hankmson  v.  Bilby   661 

Hanson  v.  Globe  Newspaper  Co.  .  665 

vHart  V.  Aldridge 864 

Hart  V,  Allen 42 

Hatchard  v.  M^   813 

Heaven  v,  Pender 156, 243 

Heege  v,  Licht 498 

Hemming  v.  City  of  New  Haven  .  398 

Herrick  v.  Wixom 149 

Hill  V.  Glenwood 71 

Hohnan  v.  Chicago  R.  I.  &  P.  R. 

Co 506 

Hohnee  v.  Missouri  Pacific  R.  Co.   328 

Horan  v,  Byrnes 928 

Hughes  V.  McDonough 829  • 

Hu^es  V,  Samuels  Bros 831 

Hulton  &  Co.  V.  Jones 674 

Hunicke  v.  Meramec  Quarry  Co.  .  134 
Huset  v.  J.  I.  Case  Threshing  Ma- 
chine Co 235 

Hutchins  v,  Hutchins 847 

Hutchinson  v.  St.  Louis  &  M.  R.  R. 
Co 330 

Ibottson  V.  Peat 937 

Illinois  Iron  A  Metal  Co.  v.  Weber    93 

Indermaur  v.  Dames  194 

Indianapolis  Street  R.  Co.  v.  Daw- 
son     204 

Innes  v.  Wylie 13 

Jackson  v,  Hopperton  790 

J.  deS.  V.  W.  deS 1 

Jersey  City  Printing  Co.  v,  Cassidy  897 

Joannes  v.  Bennett 747 

Joannes  v.  Burt 694 

Jones  V,  Charleston  &  W.  C.  R.  Co.  279 

Jones  V,  Littler 690 


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TABLE   OF  CASES 


IX 


PAGE 

Kearney  v.  London,  Bi  6c  8.  C.  R* 

Co 102 

Keeble  v.  Hickeringill  935 

Keffe9.Milwaukee&St.P.R.Co.  165 
K«th  V,  Worcester  Street  R.  Co. .  73 
Kellogg  v.  CAiteago  &  N.  W.  R.  Co.  345 

Kelly  V.  MetropoUtan  R.  Co 125 

Kidney  v,  Stoddard 561 

Kk>U8  p,  Hennessey  846 

Knupfle  V,  Knickerbocker  Ice  Co. .  504 

Koplitx  V.  City  of  St.  Paul 362 

Kuzniak  v,  Koaminfiki 926 

Lake  Erte  A  W.  R.  Co.  v.  Ford  . .  79 

Lary  v.  Cleveland  R.  Co 157 

Lawless  P.  Anglo-Egyptian  Cotton 

Co 734 

Leathern  v.  Craig 952 

Lewis  p.  Cori>in 849 

Low  V.  Bouverie 580 

Luetzke  v.  Roberts 598 

fLumhy  v.  AUday   687 

^Lumley  v,  Gye  874 

MeComb  9.  Brewer  Lumber  Co.  .  550 
McCord  Rubber  Co.  v.  St.  Joseph 

Water  Co 493 

McNee  v.  Cobum  Trolley  Track 

Co 200 

McPherson  v.  Buick  MoUnr  Co.  . .  251 

McPherson  v,  Daniels 677 

Mabardy  9.  McHu|^ 613 

Mack  V.  Sharp 644 

Malachy  p.Soper 816 

Maroeau  p.  Rutku[id  R.  Co 106 

Marks  v.  Baker 755 

Martor  ».  Ball 430 

MarshaU  v.  Welwood 477 

MaiMl  9.  White 989 

Mason  v.  Keeling 433 

Maung  Kyaw  Dun  9.  Ma  Kyin  . .  425 

Max  Morris,  The ...-  269 

May  V,  Burdett 419 

Maynard  v,  Boston  &  M.  R.  R. . .  147 

Mwedith  v.  Reed 76 

Merivale  v.  Carson 775 

Metropolitan  R.  Co.  v.  Jackson  . .  98 
Midland  Insurance  Co.  v.  Smith  .  841 

Milissich  9.  Ltoyd's   731 

Miller  9.  David 811 

Miners'  Federation  9.  Glamorgan 

Coal  Co 887 

Mitchell  9.  Jenkins 636 

Mogul  Steamship  Co.  9.  McGregor 

&Co 906 


PAGE 

Morse  9.  Hutchins 604 

Munster  9.  Lamb 697 

Nash  9.  Mih&eioia  Title  &  Trust 

Co 672 

Nashua  Iron  &  Steel  Co.  9.  Woroea- 

ter  &  N.  R.  Co 288 

Neal  9.  GiUett 263 

Nehring 9*  The  Connecticut  Co...  308 
Newcomb  9.  Boston  Protective 

Dep't 391 

Newman  9.  Phillipeburg  Horse  Car 

Co 366 

Nichols  9.  Maisland 468 

Nieboer  9.  Detroit  Electric  Ry.  . .  295 

Nocton  9.  Lord  Ashburton 578 

Norfolk  &  W.  R.  Co.  9.  Dean's 

Adm'r 320 

Northern  P.  R.  Co.  9.  Jones 278 

Note  (Y.  B.  Lib.  Assis.  f.  104,  pi, 

85)    19 

Noyes  9.  Colby 404 

Gates  9.  MetropoUtan  St.  R.  Co.  .  294 

Oberlin  v.  Upson 16 

O'Keefe  9.  Chicago,  R.  I.  A  P.  R. 

Co 321 

Osbom  9.  Vdtch 6 

Osborne  9.  McMasters 513 

Padmore  9.  Lawrence   736 

Pasley  9.  Freeman  621 

Passaic   Print   Works  9.   Ely   A 

Walker  Dry  Goods  Co 913 

Payne  9.  Chicago  &  A.  R.  Co.  ...  265 
Pearson  &  Son  9.  Lord  Mayor  of 

Dublin 617 

Peck  9.  Tribune  Co 672 

Pickett  9.  Walsh 996 

Pickett  9.  Wilmington  A  W.  R. 

Co 322 

Pierce  9.  Stablemen's  Union 1004 

Pike  9.  Hanson 21 

Plant  9.  Woods 978 

Polhill  9.  Walter 592 

PuUman  9.  Walter  Hill  &  Co.  ...  758 
Purcell  9.  Sowler 727 

Quinn  9.  Leathem 952 

Radley  9.  London  &  Northwestern 

R.  Co 283 

Ratclifife  v.  Evans 854 

Ravenga  9.  Mackintosh 634 

Read  9.  Coker 3 


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TABLE   OF  CASES 


PAGE 

Bice  v.  Coolidge  710 

Richmond  F.  &  P.  R.  Co.  v.  Mar- 
tin's Adm'r  374 

Roberson  v,  Rbchester  Folding  Box 

Co 799 

/Ryalls  V,  Leader  714 

U  Rylands  f.  Fletcher  462 

Scott,  Collisions  at  Sea,  13  Law 

Quart.  Rev.  17  273 

Scott  v.  Stansfield 695 

Schwabacker  v.  Riddle 606 

Seaman  v,  Netherclift   703 

Secor  r.  Harris    691 

Sheehan  v,  St.  Paul  &  D.  R.  Co.  .  154 

Sheffill  r.  Van  Deusen  659 

Shultz  ».  Old  Colony  Street  R.  Co.  359 

Slater  Trust  Co.  r.  Gardiner 574 

Smith  ».  BoUes  605 

Smith  ».  Hobeon 694 

Smith  V,  Land  Corporation 560 

Snyder  w.  Andrews 658 

Southcote  ».  Stanley    222 

Southern  R^.  Co.  v.  Grizzle   127 

South  Wal€«  Miners'  Federation  p. 

Glamorgan  Coal  Co 887 

Spade  V.  Lynn  &  Boston  R.  Co.  . .     45 
S.  Pearson  &  Son  ».  Lord  Mayor  of 

Dublin  617 

Stanley  V.  Powell   35 

Starkweather  v,  Benjamin 612 

State  V.  Gordon 535 

Steams  v.  Sampson    10 

Steele  ».  Burkhardt   388 

Steinmetz  t;.  Kelly   334 

Stephens  v.  Myers   2 

Stevens  v.  Nichols    214 

Stevens  v.  Sampson  761 

Steward  v.  Gromett  625 

Stiles  V.  Geesey 282 

Stone  V,  Carlan 827 

Stone  V,  Dry  Dock  R.  Co 90 

Sullivan  v.  Old  Colony  Street  Ry.     41 
Sutton  V,  Town  of  Wauwatosa  . . .  381 

Sweeny  v.  Old  Colony  R.  Co 207 

Swift  V.  Rounds    542 


PAGE 

Tarleton  ».  M'Gawley 864 

Thomas  V.  Bradbury,  Agnew  &  Co.  782 

Thorley  v.  Lord  Kerry 679 

Tillett  V.  Ward  406 

Tomlinaon  v,  Warner 646 

Tonawanda  R.  Co.  v.  Munger  . . .  406 

Toogood  V,  Spyring  750 

Tracy  V.Wood  83 

Troth  V.Wills  448 

Tuberville  v.  Savage 2 

Tuttle  V.  Buck 918 

TutUe  V.  Gilbert  Mfg.  Co 220 

Union  Pacific  R.  Co.  v,  Cappier  . .  131 

United  States  v,  Richardson 6 

U.  S.  Compiled  Statutes,   1913, 

§  8659 269 

UsiU  V,  Hales 716 

Vanderbilt  v,  Mathis 641 

Vaughan  v.  Menlove   63 

Vegelahn  r.  Guntner   968 

Wagner  V.  Bissell   410 

Jason  V.  Walker   720 

Watson  V,  Jones  582 

AVeaver  V.  Ward  29 

Webbv.  Beavan 682 

Welch  t;.  Wesson 377 

Westminister  Laundry  Co.  v.  Hesse 

Envelope  Co 838 

Wetmore  v.  Mellinger   649 

White  y.  Carroll  707 

White  w.  Mellin 819 

Wilkinson  t».  Downton 58 

Williams  y.  State    558 

WiUiamson  v.  Freer  753 

WiUy  V,  Mulledy 515 

AVing  V.  London  General  Omnibus 
I    Co Ill 

^interbottom  V.  Wright 228 

Wood  V.  Lane  20 

Work  V.  Campbell    533 

Yates  V,  South  Kirkby  Collieries  .     61 
Yerkes  v.  Northern  Pacific  R.  Co.     70 


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CASES  ON  TORTS 


PART  I 

INTERFERENCE  WITH  THE  PERSON  OR  TANGIBLE 

PROPERTY 


CHAPTER  I 
INTENTIONAL  INTERFERENCE 


Section  I 

Assault  and  Battery 

I.  De  S.  and  Wife  v,  W.  De  S. 

At  the  Assizes,  coram  Thorpe,  C.  J.,  1348  or  1349. 

Reported  in  Year  Book,  Liber  Assiaarum,  folio  99,  placitum  60. 

/.  De  S.  &  M.  uxor  ejits  gverunt  de  W,  De  S.  de  eo  quod  idem  W. 
anno,  &c.,  vi  et  armis,  &c,,  apud  S.,  in  ipsam  M.  inavUum  fecit,  et 
ipsam  verberavit,  &c.  And  W.  pleaded  not  guilty.  And  it  was  found 
by  verdict  of  the  inquest  that  the  said  W.  came  in  the  night  to  the 
house  of  the  said  L,  and  would  have  bought  some  wine,  but  the  door 
of  the  tavern  was  closed;  and  he  struck  on  the  door  with  a  hatchet, 
which  he  had  in  his  hand,  and  the  woman  plaintiff  put  her  head  out 
at  a  window  and  ordered  him  to  stop;  and  he  perceived  her  and  struck 
with  the  hatchet,  but  did  not  touch  the  woman.  Whereupon  the 
inquest  said  that  it  seemed  to  them  that  there  was  no  trespass,  since 
there  was  no  harm  done.  Thorpe  C.  J.  There  is  harm,  and  a  trespass 
for  which  they  shall  recover  damages,  since  he  made  an  assault  upon 
the  woman,  as  it  is  found,  although  he  did  no  other  harm.  Wherefore 
tax  his  damages,  &c.  And  they  taxed  the  damages  at  half  a  mark. 
Thorpe,  C.  J.,  awarded  that  they  should  recover  their  damages,  &c., 
and  that  the  other  should  be  taken.  Et  sic  nota,  that  for  an  assault  one 
shall  recover  damages,  &c.^ 

*  Smith  V.  Newsam,  1  Vent.  256;  Tombs  v.  Painter,  13  East,  1;  Lewis  v. 
Hoover,  3  Blackf.  407;  Handy  v.  Johnson,  5  Md.  450;  People  v.  Carlson,  160  Mich. 
426;  Saunders  v.  Gilbert,  156  N.  C.  463;  Leach  v.  Leach,  11  Tex.  Civ.  App.  699 
Accord. 


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2  STEPHENS  V.  MYERS  CCHAP.  I. 

TUBERVILLE  v.  SAVAGE 

In  the  King's  Bench,  Trinity  Term,  1669. 
Reported  in  1  Modem  Reports,  3. 

Action  of  assault,  battery,  and  wounding.^  The  evidence  to  prove 
a  provocation  was,  that  the  plaintiff  put  his  hand  upon  his  sword  and 
said,  "  If  it  were  not  assize-time,  I  would  not  take  such  language  from 
you."  The  question  was,  if  that  were  an  assault  ?  The  court  agreed 
that  it  was  not;  for  the  declaration  of  the  plaintiff  was  that  he  would 
not  assault  him,  the  judges  being  in  town;  and  the  intention  as  well 
as  the  act  makes  an  assault.^  Therefore,  if  one  strike  another  upon  the 
hand  or  arm  or  breast,  in  discourse,  it  is  no  assault,  there  being  no 
intention  to  assault;  but  if  one,  intending  to  assault,  strike  at  another 
and  miss  him,  this  is  an  assault:  so  if  he  hold  up  his  hand  against 
another  in  a  threatening  manner  and  say  nothing,  it  is  an  assault.  In 
the  principal  case  the  plaintiff  had  judgment. 


STEPHENS  V.  MYERS 

At  Nisi  Prius,  coram  Tindal,  C.  J.,  July  17, 1830. 

Reported  in  4  Carrington  &  Payne,  349. 

Assault.  The  declaration  stated  that  the  defendant  threatened 
and  attempted  to  assault  the  plaintiff.    Plea:  Not  guilty. 

It  appeared  that  the  plaintiff  was  acting  as  chairman  at  a  parish 
meeting,  and  sat  at  the  head  of  a  table,  at  which  table  the  defendant 
also  sat,  there  being  about  six  or  seven  persons  between  him  and  the 
plaintiff.  The  defendant  having,  in  the  course  of  some  angry  discus- 
sion which  took  place,  been  very  vociferous,  and  interrupted  the  pro- 
ceedings of  the  meeting,  a  motion  was  made  that  he  should  be  turned 
out,  which  was  carried  by  a  very  large  majority.  Upon  this  the 
defendant  said  he  would  rather  pull  the  chairman  out  of  the  chair 
than  be  turned  out  of  the  room,  and  immediately  advanced  with  his 
fist  clenched  toward  the  chairman,  but  was  stopped  by  the  church- 
warden, who  sat  next  but  one  to  the  chairman,  at  a  time  when  he  was 
not  near  enough  for  any  blow  he  might  have  meditated  to  have 

*  The  report  of  the  same  case  in  2  Keble,  545,  adds:  "  The  defendant  pleaded 
the  plaintiff  began  first,  and  the  stroke  he  received,  whereby  he  lost  his  eye,  was  on 
his  own  assault,  and  in  defense  of  the  defendant." 

*  Blake  v.  Barnard,  9  Car.  &  P.  626;  State  v.  Crow,  1  Ired.  375;  Common- 
wealth V.  Eyre,  1  S.  &  R.  347;  Biggins  v.  Gulf  R.  Co.,  102  Tex.  417  Accord.  Com- 
pare Handy  v.  Johnson,  5  Md.  450. 

Similarly,  a  mere  preparation  for  a  possible  assault,  but  without  any  act  indicat- 
ing a  present  intention  to  do  personal  violence  to  another,  is  not  an  assault.  Law- 
son  V.  State,  30  Ala.  14;  Godwin  v.  Collins,  67  Fla.  197;  Penny  v.  State,  114  Ga. 
77;  Gober  v.  State,  7  Ga.  App.  206;  Haupt  v,  Swenson,  125  la.  694;  State  i'. 
Painter,  67  Mo.  84;  State  v.  Milsaps,  82  N.  C.  549.  But  compare  State  v.  Hamp- 
ton, 63  N.  C.  13. 


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SECT.  I.]  READ  V.  COKER  3 

reached  the  chairman,  but  the  witnesses  said  that  it  seemed  to  them 
that  he  was  advancing  with  an  intention  to  strike  the  chairman. 

Spankie,  Serjt.,  for  the  defendant,  upon  this  evidence,  contended 
that  no  assault  had  been  committed,  as  there  was  no  power  in  the 
defendant,  from  the  situation  of  the  parties,  to  execute  his  threat,  — 
there  was  not  a  present  abiUty,  —  he  had  not  the  means  of  executing 
his  intention  at  the  time  he  was  stopped. 

TiNDAL,  C.  J.,  in  his  summing  up,  said :  It  is  not  every  threat,  when 
there  is  no  actual  personal  violence,  that  constitutes  an  assault;  there 
must,  in  all  cases,  be  the  means  of  carrying  the  threat  into  effect.  The 
question  I  shall  leave  to  you  will  be,  whether  the  defendant  was  ad- 
vancing at  the  time,  in  a  threatening  attitude,  to  strike  the  chairman, 
so  that  his  blow  would  almost  immediately  have  reached  the  chairman 
if  he  had  not  been  stopped;  then,  though  he  was  not  near  enough  at 
the  time  to  have  struck  him,  yet,  if  he  was  advancing  with  that  intent, 
I  think  it  amoimts  to  an  assault  in  law.  If  he  was  so  advancing  that, 
within  a  second  or  two  of  time,  he  would  have  reached  the  plaintiff,  it 
seems  to  me  it  is  an  assault  in  law.  If  you  think  he  was  not  advancing 
to  strike  the  plaintiff,  then  only  can  you  find  your  verdict  for  the 
defendant;  otherwise  you  must  find  it  for  the  plaintiff,  and  give  him 
such  damages  as  you  think  the  nature  of  the  case  requires. 

Verdict  for  the  plaintiff.    Damages,  Is} 


READ  V.  COKER 

In  the  Common  Pleas,  June  1,  1853. 

Reported  in  13  Common  Bench  Reports,  850. 

AssAUiyr  and  false  imprisonment.*  The  first  coimt  charged  an 
assault  committed  by  the  defendant  on  the  plaintiff  on  the  24th  of 
March,  1853,  by  thrusting  him  out  of  a  certain  workshop. 

Plea:  Not  gidlty  "  by  statute,"  upon  which  issue  was  joined. 

The  cause  was  tried  before  Talfourd,  J.,  at  the  first  sitting  in  London 
in  Easter  term  last.  The  facts  which  appeared  in  evidence  were  as 
follows:  The  plaintiff  was  a  paper-stainer,  carrying  on  business  in  the 
City  Road,  upon  premises  which  he  rented  of  one  Molineux,  at  a  rent 

1  Townsdin  v.  Nutt,  19  Kan.  282;  Handy  v.  Johnson,  5  Md.  450;  Fairme*s 
Case,  5  City  Hall  Rec.  95;  Brister  v.  State,  40  Tex.  Cr.  505;  Western  T.  Co.  v. 
Bowdoin,  (Tex.  Civ.  App.)  168  S.  W.  1  Accord.  Jones  v.  State,  89  Ark.  213 
(semble)  Contra. 

Compare  Cobbett  v.  Grey,  4  Ex.  744,  per  Pollock,  C.  B.;  Burton  v.  State,  8  Ala. 
App.  295;  Wells  v.  State,  108  Ark.  312;  People  v.  LiUey,  43  Mich.  521;  Grimes  v. 
State,  99  Miss.  232;  Commonwealth  v.  Roman,  52  Pa.  Super.  Ct.  64;  Trimble  v. 
State,  57  Tex.  Cr.  439. 

In  Mortin  v.  Shoppee,  3  Car.  &  P.  373,  defendant  rode  up  to  plaintiff's  gate> 
plaintiff  being  in  his  garden  about  three  yards  off,  and,  shaking  his  whip,  said, 
**Come  out,  and  I  will  lick  you  before  your  own  servants."  Compare  People «. 
Yslas.  27  Cal.  630;  State  v.  Shipman,  81  N.  C.  513. 

«  Only  so  much  of  the  case  is  given  as  relates  to  the  question  of  assault. 


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4  READ  V.  COKEB  [CHAP.  I. 

of  8s.  per  week.  In  January,  1852,  the  rent  being  sixteen  weeks  in 
arrear,  the  landlord  employed  one  HoUiwell  to  distrain  for  it.  Holli- 
well  accordingly  seized  certain  presses,  lathes,  and  other  trade  fixtures, 
and,  at  the  plaintiff's  request,  advanced  him  '£16  upon  the  security  of 
the  goods,  for  the  purpose  of  paying  off  the  rent.  The  plaintiff,  being 
unable  to  redeem  his  goods,  on  the  23d  of  February  appUed  to  the 
defendant  for  assistance.  The  goods  were  thereupon  sold  to  the  de- 
fendant by  Holliwell,  on  the  part  of  Read,  for  £25  lis.  Qd, ;  and  it  was 
agreed  between  the  plaintiff  and  the  defendant  that  the  business 
should  be  carried  on  for  their  mutual  benefit,  the  defendant  paying  the 
rent  of  the  premises  and  other  outgoings,  and  allowing  the  plaintiff  a 
certain  simi  weekly. 

The  defendant,  becoming  dissatisfied  with  the  speculation,  dis- 
missed the  plaintiff  on  the  22d  of  March.  On  the  24th,  the  plaintiff 
came  to  the  premises,  and,  refusing  to  leave  when  ordered  by  the  de- 
fendant, the  latter  collected  together  some  of  his  workmen,  who 
mustered  roimd  the  plaintiff,  tucking  up  their  sleeves  and  aprons,  and 
threatened  to  break  his  neck  if  he  did  not  go  out ;  and,  fearing  that  the 
men  would  strike  him  if  he  did  not  do  so,  the  plaintiff  went  out.  This 
was  the  assault  complained  of  in  the  first  count.  Upon  this  evidence 
the  learned  judge  left  it  to  the  jury  to  say  whether  there  was  an  in- 
tention on  the  part  of  the  defendant  to  assault  the  plaintiff,  and 
whether  the  plaintiff  was  apprehensive  of  personal  violence  if  he  did 
not  retire.  The  jury  found  for  the  plaintiff  on  this  count.  Damages, 
one  farthing. 

.  ByleSj  Serjt.,  on  a  former  day  in  this  term,  moved  for  a  rule  nisi  for 
a  new  trial,  on  the  groimd  of  misdirection,  and  that  the  verdict  was 
not  warranted  by  the  evidence.  That  which  was  proved  as  to  the 
first  coimt  clearly  did  not  amount  to  an  assault.  [Jervis,  C.  J.  It 
was  as  much  an  assault  as  a  sheriff's  oflScer  being  in  a  room  with  a 
man  against  whom  he  has  a  writ,  and  saying  to  him,  "  You  are  my 
prisoner,"  is  an  arrest.]  To  constitute  an  assault,  there  must  be 
something  more  than  a  threat  of  violence.  An  assault  is  thus  de- 
fined in  BuUer's  Nisi  Prius,  p.  15 :  "An  assault  is  an  attempt  or  offer, 
by  force  or  violence,  to  do  a  corporal  hurt  to  another,  as  by  pointing 
a  pitchfork  at  him,  when  standing  within  reach;  presenting  a  gun  at 
him  [within  shooting  distance];  drawing  a  sword,  and  waving  it  in  a 
menacing  manner,  &c.  The  Queen  v.  Ingram,  1  Salk.  384.  But  no 
words  can  amount  to  an  assault,  though  perhaps  they  may  in  some 
cases  serve  to  explain  a  doubtful  action:  1  Hawk.  P.  C.  133;  as  if  a 
man  were  to  lay  his  hand  upon  his  sword,  and  say,  '  If  it  were  not 
assize-time,  he  would  not  take  such  language/  —  the  words  would 
prevent  the  action  from  being  construed  to  be  an  assault,  because  they 
show  he  had  no  intent  to  do  him  any  corporal  hurt  at  that  time: 
Tuberville  v.  Savage."  So,  in  Selwyn's  Nisi  Prius  (11th  ed.),  26,  it  is 
said:  "  An  assault  is  an  attempt,  with  force  or  violence,  to  do  a  cor- 


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SECT.  I.]  READ  V.  COKER  5 

poral  injury  to  another,  as  by  holding  up  a  fi^t  in  a  menacing  manner; 
striking  at  another  with  a  cane  or  stick,  though  the  party  striking  may 
miss  his  aim;  drawing  a  sword  or  bayonet;  throwing  a  bottle  or  glass 
with  intent  to  wound  or  strike;  presenting  a  gun  at  a  person  who  is 
within  the  distance  to  which  the  gun  will  carry;  pointing  a  pitchfork 
at  a  person  who  is  within  reach  (Genner  v.  Sparks) ;  or  by  any  other 
similar  act,  accompanied  with  such  circumstances  as  denote  at  the 
time  an  intention,  coupled  with  a  present  ability  (see  Stephens  v. 
Myers),  of  using  actual  violence  against  the  person  of  another/'  So, 
in  3  Bl.  Comm.  120,  an  assault  is  said  to  be  "  an  attempt  or  offer  to 
beat  another,  without  touching  him;  as  if  one  lifts  up  his  cane  or  his 
fist  in  a  threatening  manner  at  another,  or  strikes  at  him  but  misses 
him:  this  is  an  assault,  insuUuSy  which  Finch  (L.  202)  describes  to  be 
*  an  unlawful  setting  upon  one's  person.'  "  [Jebvis,  C.  J.  If  a  man 
comes  into  a  room,  and  lays  his  cane  on  the  table,  and  says  to  another, 
"  If  you  don't  go  out  I  will  knock  you  on  the  head,"  would  not  that  be 
an  assault  ?]  Clearly  not:  it  is  a  mere  threat,  unaccompanied  by  any 
gesture  or  action  towards  canning  it  into  effect.  The  direction  of  the 
learned  judge  as  to  this  point  was  erroneous.  He  should  have  told  the 
jury  that  to  constitute  an  assault  there  must  be  an  attempt,  coupled 
with  a  present  ability,  to  do  personal  violence  to  the  party;  instead  of 
leaving  it  to  them,  as  he  did,  to  say  what  the  plaintiff  thought,  and  not 
what  they  (the  jury)  thought  was  the  defendant's  intention.  There 
must  be  some  act  done  denoting  a  present  abiUty  and  an  intention 
to  assault. 

A  rule  nisi  having  been  granted, 

AUen,  Serjt.,  and  Chamock  now  showed  cause.  The  first  question 
is,  whether  the  evidence  was  sufficient,  as  to  the  first  count,  to  justify 
the  learned  judge  in  putting  it  to  the  jury  whether  or  not  the  defend- 
ant had  been  guilty  of  an  assault.  The  evidence  was,  that  the  plaintiff 
was  surrounded  by  the  defendant  and  his  men,  who,  with  their  sleeves 
and  aprons  tucked  up,  threatened  to  break  his  neck  if  he  did  not  quit 
the  workshop.  [Maulb,  J.  If  there  can  be  such  a  thing  as  an  assault 
without  an  actual  beating,  this  is  an  assault.] 

Jervis,  C.  J.  I  am  of  opinion  that  this  rule  cannot  be  made  abso- 
lute to  its  full  extent;  but  that,  so  far  as  regards  the  first  coimt  of  the 
declaration,  it  must  be  discharged.  If  anything  short  of  actual  strik- 
ing will  in  law  constitute  an  assault,  the  facts  here  clearly  showed 
that  the  defendant  was  guilty  of  an  assault.  There  was  a  threat  of 
violence  exhibiting  an  intention  to  assault,  and  a  present  ability  to 
carry  the  threat  into  execution. 

Maule,  J.,  Cresswell,  J.,  and  Talpourd,  J.,  concurring. 

Rule  discharged  as  to  the  first  count} 

»  United  States  v.  Kieman,  3  Cranch,  C.  C.  436;  Plonty  v.  Murphy,  82  Minn. 
268;  People  v.  Lee,  1  Wheeler,  Grim.  Gas.  364;  State  v.  Davis,  1  Ired.  125;  Alex- 
ander V.  Blodgett,  44  Vt.  476;  Newell  v,  Whitcher,  53  Vt.  589;  Bishop  v,  Ranney, 
59  Vt.  316;  Barnes  v,  Martin,  15  Wis.  240;  Keep  v,  QuaUman,  68  Wis.  451  Accord, 


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6  OSBORN  V.  VEITCH  [CHAP.  I. 

UNITED  STATES  v.  RICHARDSON 

In  the  United  States  Circuit  Court,  District  op  Columbia, 

November  Term,  1837. 

Reported  in  5  Cranch,  Circuit  Court  Reports,  348. 

Indictment  for  an  assault  upon  one  Susan  Shelton. 

The  evidence  was  that  the  defendant  came  into  the  house  where 
Mrs.  Shelton  was  sitting  at  a  window.  He  was  armed  with  a  musket 
and  a  club;  and  raising  the  club  over  her  head,  in  an  attitude  for 
striking,  and  within  striking  distance,  said  to  her  that  if  she  said  a 
word  (or  if  she  opened  her  mouth)  he  would  strike  her;  and  this 
without  any  provocation  on  her  part. 

Mr,  Bradley  and  Mr.  Hcban,  for  the  defendant,  contended  that 
this  was  not,  in  law,  an  assault;  that  there  can  be  no  assault  without 
a  present  intent  to  strike;  and  his  sajdng,  "  if  she  opened  her  mouth," 
showed  that  he  had  not  such  a  present  intent;  and  they  cited  the  old 
case,  "  if  it  were  not  the  assizes,  I  would  stab  you." 

But  the  Court  (Thurston,  J.,  absent)  said  that  he  had  no  right 
to  restrain  her  from  speaking;  and  his  language  showed  an  intent  to 
strike  upon  her  violation  of  a  condition  which  he  had  no  right  to  im- 
pose. Suppose  a  stranger  comes  to  my  house  armed,  and  raises  his 
club  over  my  head,  within  striking  distance,  and  threatens  to  beat  me 
unless  I  will  go  out  of  and  abandon  my  house;  surely  that  would  be  an 
assault.  So,  if  a  highwayman  puts  a  pistol  to  my  breast,  and  threatens 
to  shoot  me  unless  I  give  him  my  money;  this  would  be  evidence  of  an 
assault,  and  would  be  charged  as  such  in  the  indictment. 

Verdidj  guiUy;  fined  ten  doUaraX 


OSBORN  V.  VEITCH 
At  Nisi  Prius,  coram  Willes,  J.,  Kent  Summer  Assizes,  1858. 

Reported  in  1  Foster  &  Firdaaon,  317. 

Trespass  and  assault.  Pleas:  Not  guilty,  and  son  assaidt  demesne. 
Issue. 

The  plaintiffs  were  owners  of  a  field  in  which  the  defendants  were 
walking  with  loaded  guns  at  half-cock  in  their  hands.  The  plaintiffs 
desired  them  to  withdraw  and  give  their  names,  and  on  their  refusal 
advanced  towards  them,  apparently  as  if  to  apprehend  them.  The 
defendants  half  raised  their  guns,  which  they  pointed  towards  them, 

1  United  States  v.  Myers,  1  Cranch,  C.  C.  310;  Keefe  v.  State,  19  Ark.  190;  Hix- 
son  V,  Slocum,  156  Ky.  487;  State  v.  Dooley,  121  Mo.  691;  State  v.  Herron,  12 
Mont.  230;  State  v,  Morgan,  3  Ired.  186;  State  v.  Cherry,  11  Ired.  475;  State  v. 
Church,  63  N.  C.  15;  Bishop  i;.  Ranney,  59  Vt.  316;  French  v.  Ware,  65  Vt.  338 
Accord. 


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SECT.  I.]  BEACH  V.  HANCOCK  7 

and  threatened  to  shoot  them.  The  plaintiffs  (one  of  whom  was  a 
constable)  then  gave  them  in  charge  to  a  poUceman  for  shooting  with 
intent,  and  he,  with  their  assistance,  seized  and  handcuffed  them. 

E.  James  submitted  that  there  was  no  assault;  as  the  guns  were 
only  at  half-cock,  there  was  no  "  present  abiUty  "  to  execute  the 
threat.    Read  v.  Coker. 

Sed  per  Willes,  J.  Pointing  a  loaded  gun  at  a  person  is  in  law 
an  assault.  It  is  immaterial  that  it  is  at  half-cock;  cocking  it  is  an 
instantaneous  act,  and  there  is  a  "  present  abiUty  "  of  doing  the  act 
threatened,  for  it  can  be  done  in  an  instant.^ 

E.  James.  The  assault  was  in  self-defence;  the  defendants  were 
only  trespassers,  and  there  was  an  attempt  to  apprehend  them,  and 
excess  is  not  even  assigned.    Broughton  v.  Jackson,  18  Q.  B.  378. 

Willes,  J.  It  was  not  necessary  that  it  should  be.  To  shoot  a  man 
is  not  a  lawful  way  of  repelling  an  assault.  No  doubt  the  charge  of 
shooting  with  intent  was  idle,  and  the  assault  was  only  a  misdemeanor. 
The  handcuffing  was  utterly  unlawful.   ^ 

Verdict  for  the  plaintiff,    Dam^ages,  one  farthing. 


BEACH  V,  HANCOCK 

Superior  Court  of  Judicature,  New  Hampshire,  December 

Term,  1853. 
Reported  in  27  New  Hampshire  Reports,  223. 

Trespass,  for  an  assault. 

Upon  the  general  issue  it  appeared  that,  the  plaintiff  and  defendant 
being  engaged  in  an  angry  altercation,  the  defendant  stepped  into  his 
office,  which  was  at  hand,  and  brought  out  a  gun,  which  he  aimed  at 
the  plaintiff  in  an  excited  and  threatening  maimer,  the  plaintiff  being 
three  or  four  rods  distant.  The  evidence  tended  to  show  that  the 
defendant  snapped  the  gim  twice  at  the  plaintiff,  and  that  the  plaintiff 
did  not  know  whether  the  gim  was  loaded  or  not,  and  that,  in  fact,  the 
gun  was  not  loaded. 

The  court  ruled  that  the  pointing  of  a  gun,  in  an  angry  and  threat- 
ening manner,  at  a  person  three  or  four  rods  distant,  who  was  igno- 
rant whether  the  gun  was  loaded  or  not,  was  an  assault,  though  it 
should  appear  that  the  gun  was  not  loaded,  and  that  it  made  no 
difference  whether  the  gun  was  snapped  or  not. 

The  court,  among  other  things,  instructed  the  jury  that,  in  assess- 
ing the  damages,  it  was  their  right  and  duty  to  consider  the  effect 
which  the  finding  of  hght  or  trivial  damages  in  actions  for  breaches 

1  State  V.  Church,  63  N.  C.  15  Accord, 

Firing  a  revolver  in  plaintiff's  presence  but  not  at  him,  intending  to  frighten  him 
but  not  to  do  him  any  oodily  harm,  was  held  not  to  be  an  assault.  Degenhardt  v. 
Heller,  93  Wis.  662.    Compare  Nelson  v.  Crawford,  122  Mich.  466. 


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8  BEACH  V.  HANCOCK  [CHAP.  I. 

of  the  peace  would  have  to  encourage  a  disregard  of  the  laws  and 
disturbances  of  the  pubUc  peace. 

The  defendant  excepted  to  these  rulings  and  instructions. 

The  jury  having  found  a  verdict  for  the  plaintiff,  the  defendant 
moved  for  a  new  trial  by  reason  of  said  exceptions. 

Morrison  and  Fitchy  for  the  defendant.  The  first  question  arising 
in  this  case  is,  Is  it  an  assault  to  point  an  unloaded  gim  at  a  person 
in  a  threatening  manner  ?  An  assault  is  defined  to  be  an  inchoate 
violence  to  the  person  of  another,  with  the  present  means  of  carrying 
the  intent  into  effect.  2  Greenl.  Ev.  72.  The  attempt  or  offer  with 
violence  to  do  corporal  hurt  to  another  must  be  coupled  with  a  present 
ability  to  constitute  an  assault.  Roscoe's  Grim.  Ev.  287;  1  Russell 
on  Crimes,  750.  It  is  no  assault  to  point  an  imloaded  gun  or  pistol  at 
another,  &c.  Blake  v.  Barnard,  9  Car.  &  P.  626;  Regina  v.  Baker,  1 
Car.  &  K.  254;  Regina  v.  James,  1  Car.  &  K.  530.  The  court  erred  in 
instructing  the  jury  that  the  pointing  of  a  gun  in  an  angry  and  threat- 
ening manner  was  an  assault*  It  is  well  settled  that  the  intention  to 
do  harm  is  the  essence  of  an  assault,  and  this  intent  is  to  be  collected 
by  the  jury  from  the  circumstances  of  the  case.    2  Greenl.  Ev.  73.^ 

Gilchrist,  C.  J.  Several  cases  have  been  cited  by  the  counsel  of 
the  defendant  to  show  that  the  ruling  of  the  court  was  incorrect. 
Among  them  is  the  case  of  Regina  v.  Baker,  1  Car.  &  K.  254.  In  that 
case,  the  prisoner  was  indicted  under  the  statute  of  7  Will.  IV.  and 
1  Vict.  c.  85,  for  attempting  to  discharge  a  loaded  pistol.  Rolfe,  B., 
told  the  jury  that  they  must  consider  whether  the  pistol  was  in  such 
a  state  of  loading  that,  under  ordinary  circumstances,  it  would  have 
gone  off,  and  that  the  statute  imder  which  the  prisoner  was  indicted 
would  then  apply.  He  says,  also,  "  If  presenting  a  pistol  at  a  person, 
and  pulling  the  trigger  of  it,  be  an  assault  at  all,  certainly,  in  the 
case  where  the  pistol  was  loaded,  it  must  be  taken  to  be  an  attempt 
to  discharge  the  pistol  with  intent  to  do  some  bodily  injury." 

From  the  manner  in  which  this  statement  is  made,  the  opinion  of 
the  court  must  be  inferred  to  be,  that  presenting  a  loaded  pistol  is  an 
assault.  There  is  nothing  in  the  case  favorable  to  the  defendant.  The 
statute  referred  to  relates  to  loaded  arms. 

The  case  of  Regina  v.  James,  1  Car.  &  K.  530,  was  an  indictment 
for  attempting  to  discharge  a  loaded  rifle.  It  was  shown  that  the 
priming  was  so  damp  that  it  would  not  go  off.  Tindal,  C.  J.,  said: 
'*  I  am  of  opinion  that  this  was  not  a  loaded  arm  within  the  statute 
of  1  Vict.  c.  85,  and  that  the  prisoner  can  neither  be  convicted  of  the 
felony  nqr  of  the  assault.  It  is  only  an  assault  to  point  a  loaded  pistol 
at  any  one,  and  this  rifle  is  proved  not  to  be  so  loaded  as  to  be  able  to 
be  discharged."  The  reason  why  the  prisoner  could  not  be  convicted 
of  the  assault  is  given  in  the  case  of  Regina  v.  St.  George,  9  Car.  &  P. 

*  The  argument  for  the  plaintiff  is  omitted. 


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SECT.  I.]  BEACH  V.  HANCOCK  9 

483,  where  it  was  held  that  on  an  indictment  for  a  felony,  which 
includes  an  assault,  the  prisoner  ought  not  to  be  convicted  of  an 
assault,  which  is  quite  distinct  from  the  felony  charged,  and  on  such 
an  indictment  the  prisoner  ought  only  to  be  convicted  of  an  assault, 
which  is  involved  in  the  felony  itself.  In  this  case,  Parke,  B.,  said: 
''  If  a  person  presents  a  pistol  which  has  the  appearance  of  being 
loaded,  and  puts  the  party  into  fear  and  alarm,  that  is  what  it  is  the 
object  of  the  law  to  prevent."  So  if  a  person  present  a  pistol  purport- 
ing to  be  a  loaded  pistol  at  another,  and  so  near  as  to  have  been  dan- 
gerous to  life  if  the  pistol  had  gone  off;  semble,  that  this  is  an  assault, 
even  though  the  pistol  were,  in  fact,  not  loaded.    Ibid. 

In  the  case  of  Blake  v.  Barnard,  9  Car.  &  P.  626,  which  was  trespass 
for  an  assault  and  false  imprisonment,  the  declaration  alleged  that 
the  pistol  was  loaded  with  gunpowder,  ball,  and  shot,  and  it  was  held 
that  it  was  incumbent  on  the  plaintiff  to  make  that  out.  Lord 
Abinger  then  says,  "  If  the  pistol  was  not  loaded,  it  would  be  no 
assault,"  and  the  prisoner  would  be  entitled  to  an  acquittal,  which 
was  imdoubtedly  correct,  under  that  declaration,  for  the  variance. 
Regina  v.  Oxford,  9  Car.  &  P.  525. 

One  of  the  most  important  objects  to  be  attained  by  the  enactment 
of  laws  and  the  institutions  of  civilized  society  is,  each  of  us  shall  feel 
secure  against  unlawful  assaults.  Without  such  security  society  loses 
most  of  its  value.  Peace  and  order  and  domestic  happiness,  inexpres- 
sibly more  precious  than  mere  forms  of  government,  cannot  be  en- 
joyed without  the  sense  of  perfect  security.  We  have  a  right  to  Uve 
in  society  without  being  put  in  fear  of  personal  harm.  But  it  must  be 
a  reasonable  fear  of  which  we  complain.  And  it  surely  is  not  unreason- 
able for  a  person  to  entertain  a  fear  of  personal  injury,  when  a  pistol 
is  pointed  at  him  in  a  threatening  manner,  when,  for  aught  he  knows, 
it  may  be  loaded,  and  may  occasion  his  immediate  death.  The  busi- 
ness of  the  world  could  not  be  carried  on  with  comfort,  if  such  things 
could  be  done  with  impimity. 

We  think  the  defendant  guilty  of  an  assault,  and  we  perceive  no 
reason  for  taking  any  exception  to  the  remarks  of  the  court.  Finding 
trivial  damages  for  breaches  of  the  peace  —  damages  incommensurate 
with  the  injury  sustained  —  would  certainly  lead  the  ill-disposed  to 
consider  an  assault  as  a  thing  that  might  be  committed  with  im- 
punity. But  at  an  events,  it  was  proper  for  the  jury  to  consider 
whether  such  a  result  would  or  would  not  be  produced.  Flanders  v. 
Colby,  28  N.  H.  34.  Judgment  on  the  verdict} 

*  In  Chapman  v.  State,  78  Ala.  463;  State  v.  Yturaspe,  22  Idaho,  360;  State  v. 
Sears,  86  Alo.  169;  State  v.  Godfrey^  17  Or.  300;  McKay  v.  State.  44  Tex.  43, 
it  was  decided  that  a  defendant  who  auned  an  unloaded  pistol  at  another,  although 
perhaps  liable  for  a  civil  assault,  was  not  guilty  of  a  criminal  assault.  See  also 
2  Green,  Cr.  Cas.  271  n.;  Territory  v.  Gomez,  14  Ariz.  139;  People  v.  Sylva,  143 
Cal.  62.  Such  conduct  was  held  to  be  a  criminal  assault  in  State  v.  Shepard,  10 
la.  126;  Commonwealth  i;.  White,  110  Mass.  407;  State  v.  Barry,  46  Mont.  598; 


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10  STEARNS  V.  SAMPSON  [CHAP.  I. 

STEARNS  AND  Wife  v.  SAMPSON 

Supreme  Judicial  Court,  Maine,  1871. 

Reported  in  59  Maine  RepartSy  568. 

On  exceptions,  and  motion  to  set  aside  the  verdict  as  being  against 
law. 

Trespass.  The  writ  contained  three  counts:  one  for  breaking  and 
entering  the  plaintiffs'  close  and  carrying  away  the  household  furni- 
ture; the  second,  for  taking  and  carrying  away  the  household  furni- 
ture of  the  wife;  and  the  third,*  for  assault  on  the  wife. 

There  was  evidence  tending  to  show  that  after  entry  and  notice  to 
leave,  and  refusal  by  the  wife  and  her  mother,  with  an  expressed 
determination  on  their  part  to  hold  possession  against  the  defendant, 
the  latter  called  in  assistants  and  ordered  them  to  remove  the  furni- 
ture, and  they  did  remove  it  from  some  of  the  rooms;  that  upon  going 
to  one  of  the  rooms,  the  door  was  fastened,  and  the  assistants  opened 
it;  that  the  furniture,  except  bed,  was  removed  from  Mrs.  Steams' 
sleeping-room. 

That  the  assistants  remained  there  several  days  and  nights. 

That  the  defendant  caused  the  windows  to  be  removed;  prevented 
food  from  being  carried  to  the  house;  that  a  tenant  was  let  into  the 
L  of  the  house,  and  had  charge  of  the  defendant's  bloodhound,  five 
months  old,  and  permitted  him  to  go  into  the  house;  that  the  furni- 
ture was  removed  into  a  house  near  by,  and  Mrs.  Steams  notified  of  its 
whereabouts;  that  the  doors  fastened  by  Mrs.  Steams  were  removed; 
that  Mrs.  Steams  finally  left  by  compulsion  with  an  oflScer,  and  was 
sick  several  weeks. 

The  rulings  suflSciently  app)ear  in  the  opinion. 

The  jury  returned  a  verdict  for  the  plaintiffs,  and  the  defendant 
alleged  exceptions,  and  also  filed  motions  to  set  aside  the  verdict  as 
being  against  law  and  the  weight  of  evidence. 

Appleton,  C.  J.  There  is  in  the  declaration  a  count  for  an  assault 
and  battery  upon  the  female  plaintiff.  In  reference  to  this  branch 
of  the  case,  the  following  instructions  were  given:  *'Was  there  a 
trespass  committed  upon  the  female  plaintiff  ?  She  is  the  only  one 
who  seeks  for  damages.  Whatever  may  have  been  the  injury  inflicted 
upon  the  other  inmates  of  that  house,  she  can  recover  on  this  suit  only 
for  that  which  was  inflicted  upon  her.  In  order  to  constitute  an 
assault,  it  is  not  necessary  that  the  person  should  be  touched,  but 

Clark  V.  State.  (Okl.  Cr.)  106  Pac.  803;  State  v.  Smith,  2  Humph.  457;  Richels  v. 
State,  1  Sneed,  606  (semble);  Morison's  Case^  1  Brown,  Just.  R.  (Scotch)  394.  In 
Commonwealth  v.  White,  supraf  Wells.  J.,  said :  "  It  is  not  the  secret  intent  of  the 
assaulting  party,  nor  the  undisclosed  lact  of  his  ability  or  inability  to  commit  a 
battery,  that  is  material,  but  what  his  conduct  and  the  attending  circumstances 
demote  at  the  time  to  the  party  assaulted.'*  Cf.  Howell  v.  Winters,  58  Wash.  436. 
^  Only  so  much  of  the  case  is  printed  as  relates  to  this  count. 


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SECT.  I.]  STEARNS  V.   SAMPSON  11 

there  should  be  certain  indignities.  In  the  language  of  one  of  the 
decisions,  if  the  plaintiff  was  embarrassed  and  distressed  by  the  acts 
of  the  defendant,  it  would  amount  in  law  to  an  assault."  The  acts 
and  indignities  which  from  the  charge  might  constitute  an  assault 
were  the  bursting  open  a  door,  which  the  defendants  had  no  right  to 
fasten,  and  the  inconveniences  resulting  from  taking  off  the  doors  and 
taking  out  the  windows,  which  made  it  uncomfortable  for  the  female 
plaintiff  to  remain,  where  remaining,  she  was  a  trespasser.  So  the 
bringing  a  bloodhound  by  the  defendant  into  his  house,  which  is 
proved  to  have  barked,  but  not  to  have  bitten,  and  the  making  a  noise 
therein,  with  other  similar  acts,  it  was  contended,  would  amount  to  an 
assault  and  trespass,  and  of  that  the  jury  were  to  judge.  Now,  such 
•  is  not  the  law.  An  assault  and  battery  is  clearly  defined  by  R.  S.,  c. 
118,  §  28,  thus:  "  Whoever  unlawfully  attempts  to  strike,  hit,  touch, 
or  do  any  violence  to  another,  however  small,  in  a  wanton,  wilful, 
angry,  or  insulting  manner,  having  an  intention  and  existing  abiUty 
to  do  some  violence  to  such  person,  shall  be  deemed  guilty  of  an 
assault;  and  if  such  atte  npt  is  carried  into  effect,  he  shall  be  deemed 
guilty  of  an  assault  and  battery."  Now,  the  removal  of  a  door  or 
windows,  of  the  owner  ifi  possession,  would  constitute  no  assault. 
Indeed,  as  has  been  seen,  6  Allen,  76,  the  owner  would,  in  attempting 
it,  have  the  right  to  use  as  much  force  as  was  necessary  to  overcome 
the  resistance  of  the  unlawfully  resisting  and  trespassing  tenant.  Acts 
which  may  embarrass  and  distress  do  not  necessarily  amoimt  to  an 
assault.  Lxdignities  may  not  constitute  an  assault.  Acts  aggravating 
an  assault  differ  materially  from  the  assault  thereby  aggravated. 
Insulting  language  or  conduct  may  aggravate  an  assault,  but  it  not  an 
assault.^    So  the  acts  of  the  defendant  in  taking  out  the  windows  of 

1  State  V,  Daniel,  136  N.  C.  671;  Degenhardt  v.  Heller,  93  Wis.  662  Accord, 
Wood  V.  Young,  20  Ky.  L.  Rep.  1931  Contra.  It  is  not  an  assault  to  make  the 
kissing  sign  to  another.     Fuller  v.  State,  44  Tex.  Cr.  463. 

Mere  words,  looks,  or  gestures,  however  violent  or  insulting,  do  not  amount  to 
an  assault.  State  v,  Borrelli,  24  Del.  349;  Reimenschneider  v.  Neusis,  175  111. 
App.  172;  Harvey  v.  Harvey,  124  La.  595;  Bouillon  v.  La  Clede  Gas  Light  Ck>., 
148  Mo,  App.  462;  State  v,  Daniel,  136  N.  C.  571;  Lewis  v.  Fountain,  168  N.  C. 
277.  A  forticri  violent  language  over  the  telephone  is  no  assault.  Kramer  v. 
Ricksmeier,  159  la.  48. 

No  action  lies  for  the  shame  and  insult  to  a  woman  from  inviting  her  to  illicit 
intercourse.  Davis  v.  Richardson,  76  Ark.  348;  Reed  v.  Maley,  115  Ky.  816  j  State 
V.  White,  52  Mo.  App.  285.  A  liter  where  accompanied  by  acts  that  put  her  m  fear. 
Johnson  v.  Hohn,  168  la.  147;  Jeppsen  v.  Jensen,  47  Utah,  536;  Newell  v.  Whitcher, 
53  Vt.  589.  And  a  common  carrier  is  liable,  as  a  public  service  company,  for  insults 
to  a  passenger  by  its  employees.    Knoxville  Co.  v.  Lane,  103  Tenn.  376. 

"  Injtuy  is  conunitted  not  only  when  a  man  is  struck  with  the  fot  or  beaten 
with  a  stick  or  lashed,  but  also  when  abusive  language  is  publicly  addressed  to  any 
one,  or  when  .  .  .  some  one  .  .  .  has  followed  about  a  married  woman  or  a 
young  boy  or  gjrl,  or  when  some  person's  modesty  may  be  said  to  have  been 
assailed.'*     Institutes  of  Justinian,  iv,  4,  1. 

''  Likewise  it  is  an  iniury  of  this  kind  when  one  person,  without  actually  striking 
another,  keeps  raising  his  hand  menacingly  and  creates  in  the  other  the  fear  that 
be  win  be  struck.  .  .  .  Likewise  if  he  mocks  another  with  indecent  or  indecorous 
gestures;  or  if  by  means  of  gesticulations  he  indicates  things  of  such  a  kind  that 


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12  COLE  V.  TURNER  [CHAP.  I. 

his  own  house,  in  a  bleak  and  cold  day,  might  distress  one  unlawfully 
occupying  and  illegally  refusing  to  quit  his  premises,  but  they  could  in 
no  sense  be  regarded  as  an  assault  upon  her.  One  may  be  embarrassed 
and  distressed  by  acts  done  *'  in  a  wanton,  wilful,  angry,  or  insulting 
manner,"  where  there  is  no  "  intention  nor  existing  ability  to  do  some 
violence  "  to  the  person,  and  yet  there  be  no  assault.  The  instruc- 
tion on  this  point  is  equally  at  variance  with  the  conmion  law  and 
the  statute  of  the  State.^ 


COLE  V.  TURNER 

At  Nisi  Prius,  coram  Holt,  C.  J.,  Easter  Term,  1704. 

Reported  in  6  Modem  ReportSf  149. 

Holt,  C.  J.,  upon  evidence  in  trespass  for  assault  and  battery 
declared,  — 

First,  That  the  least  touching  of  another  in  anger  *  is  a  battery. 

Secondly,  If  two  or  more  meet  in  a  narrow  passage,  and,  without 
any  violence  or  design  of  harm,  the  one  touches  the  other  gently,  it 
will  be  no  battery.' 

Thirdly,  If  any  of  them  use  violence  against  the  other,  to  force  his 
way  in  a  rude,  inordinate  manner,  it  will  be  a  battery;  or  any  strug- 
gle about  the  passage  to  that  degree  as  may  do  hurt  will  be  a  battery. 

if  they  were  expressed  in  spoken  words  or  in  writing  they  would  convey  an  injury." 
Voet,  Commentary  on  the  Pandects,  xlvii,  10,  1 7. 

**  Ignominious  treatment  is  an  injury  only  when  it  is  an  infringement  of  one  of 
the  absolute  rights  of  personality:  a  right  that  is  recognized  by  the  law  of  the 
State  as  includ^  amongst  the  natural  rights  of  every  freeman.  Such  an  infringe- 
ment of  another's  right  may  be  regarded  as  offensive  to  good  morals  (contra  brnoa 
mores);  hence  the  definition  of  iniuria  as  *  an  insult  offered  to  any  person  against 
good  morals  '  (contumelia  contra  bonos  mores  alicui  iUata)."  De  Villiers,  Roman 
and  Roman-Dutch  Law  of  Injuries,  22. 

*  Meader  v.  Stone,  7  Met.  (Mass.)  147  Accord. 

See  Rex  v.  Smith,  2  Car.  &  P.  449;  Preiser  v.  Wielandt,  48  App.  Div.  569. 

*  Hostile  touching  or  in  anger.  Singer  Co.  v,  Methvin,  184  Ala.  554;  McGlone 
V.  Hanger,  56  Ind.  App.  243;  Booher  v.  Trainer,  172  Mo.  App.  376;  Hough  v. 
Iderhoff,  69  Or.  568;  Raefeldt  v.  Koenig,  152  Wis.  459  Accord. 

Touchingcon/ra  bonos  mores  but  with  no  hostile  intent.  Richmond  v.  Fisk,  160 
Mass.  34.  Taking  liberties  with  a  woman.  Hatchett  v.  Blacketer,  162  Ky.  266; 
Timmons  v.  Kenrick,  53  Ind.  App.  490.  Unauthorized  surgical  operation.  Pratt 
V.  Davis,  224  111.  300;  Mohr  v.  Williams,  95  Minn.  261;  Schloendorfif  v.  Society, 
211  N.  Y.  125;  Rolater  v.  Strain,  39  Okl.  572.  But  see  Bennan  v.  Parsonnet,  83 
N.  J.  Law,  20.  Aliter  where  authorized  by  a  minor.  Bakker  v.  Welsh,  144  Mich. 
632. 

«  Keriflford's  Case,  Clayt.  22  pi.  38  Accord.  See,  also,  Steinman  v.  Baltimore 
Laundry  Co.,  109  Md.  62;  Courtney  v.  Kneib,  131  Mo.  App.  204. 


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SECT.  I.]  COWARD  V.  BADDELEY  13 

INNES  V.  WYLIE 

At  Nisi  Prius,  coram  Lord  Denman,  C.  J.,  February  22, 1844. 
Reported  in  1  Carrington  dk  Kirvxm,  267. 

Assault.    Plea:  ^  Not  guilty. 

It  further  appeared  that  the  plaintiff,  on  the  30th  of  November, 
1843,  went  to  a  dinner  of  the  society  at  Radley's  Hotel,  and  was 
prevented  by  a  poUceman  named  Douglas  from  entering  the  room; 
and  it  was  proved  by  the  poUceman  that  he  acted  by  order  o£  the 
defendants. 

With  respect  to  the  alleged  assault,  the  policeman  said,  "The 
plaintiff  tried  to  push  by  me  into  the  room,  and  I  prevented  him;  " 
but  some  of  the  other  witnesses  stated  that  the  plaintiff  tried  to  enter 
the  room,  and  was  pushed  back. 

Erie  addressed  the  jury  for  the  defendant.  There  is  no  assault 
here.  The  poUceman,  who  must  best  know  what  was  done,  says  that 
the  plaintiff  tried  to  push  into  the  room,  and  he  prevented  him;  and 
preventing  a  person  from  pushing  into  a  room  is  no  assault,  the 
assault,  if  any,  being  rather  on  the  other  side. 

Lord  Denman,  C.  J.  (in  summing  up).  You  will  say,  whether,  on 
the  evidence,  you  think  that  the  poUceman  committed  an  assault  on 
the  plaintiff,  or  was  merely  passive.  If  the  poUceman  was  entirely 
passive,  Uke  a  door  or  a  waU  put  to  prevent  the  plaintiff  from  enter- 
ing the  room,  and  simply  obstructing  the  entrance  of  the  plaintiff,  no 
assault  has  been  committed  on  the  plaintiff,  and  your  verdict  wiU  be 
for  the  defendant.  The  question  is,  Did  the  poUceman  take  any 
active  measures  to  prevent  the  plaintiff  from  entering  the  room,  or 
did  he  stand  in  the  door-way  passive,  and  not  move  at  aU  ? 

Verdict  for  the  plaintiff.    Damages,  40s. 


COWARD  V.  BADDELEY 
In  the  Exchequer,  April  19, 1859. 

Reporttd  in  4  HurlsUme  6r  Norman,  478. 

Declaration:  That  the  defendant  assaulted  and  beat  the  plaiiitiff, 
gave  him  in  custody  to  a  poUceman,  and  caused  him  to  be  imprisoned 
in  a  poUcenstation  for  twenty-four  hours,  and  afterwards  to  be  taken 
in  custody  along  pubUc  streets  before  metropoUtan  poUce  magistrates. 

Pleas:  First,  Not  guilty;  third.  That  the  plaintiff,  within  the  Met- 
ropoUtan PoUce  District,  assaulted  the  defendant,  and  therefore  the 
defendant  gave  the  plaintiff  into  custody  to  a  poUce  oflScer,  who  had 
view  of  the  assault,  in  order  that  he  might  be  taken  before  magistrates 
and  dealt  with  according  to  law,  &c. 

^  The  statement  of  the  case  has  been  abridged. 


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14  COWAKD  V.  BADDELEY  [CHAP.  !• 

Whereupon  issue  was  joined. 

At  the  trial  before  Bramwell,  B.,  at  the  London  sittings  in  last 
Hilary  term,  the  plaintiff  proved  that,  on  the  night  of  the  31st  of 
October,  he  was  passing  through  High  Street,  Islington,  and  stopped 
to  look  at  a  house  which  was  on  fire.  The  defendant  was  directing  a 
stream  of  water  from  the  hose  of  an  engine  on  the  fire.  The  plaintiff 
said,  "  Don't  you  see  you  are  spreading  the  flames  ?  Why  don't  you 
pimip  on  the  next  house  ?  "  He  went  away,  and  then  came  back  and 
repeated  these  words  several  times,  but  did  not  touch  the  defendant. 
The  defendant  charged  the  plaintiff  with  assaulting  him,  and  gave 
him  into  the  custody  of  a  policeman  who  was  standing  near. 

The  defendant  swore  that,  on  being  interrupted  by  the  plaintiff, 
he  told  him  to  get  out  of  the  way  and  mind  his  own  business;  that  tho 
plaintiff  came  up  to  him  again,  seized  him  by  the  shoulder,  violently 
turned  him  round,  exposed  him  to  danger,  and  turned  the  water  off 
the  fire. 

The  learned  judge  told  the  jury  that  the  question  was  whether  an 
assault  and  battery  had  been  committed;  and  he  asked  them,  first, 
whether  the  plaintiff  laid  hands  on  the  defendant;  and,  secondly, 
whether  he  did  so  hostilely.  The  jmy  found  that  the  plaintiff  did  lay 
hands  on  the  defendant,  intending  to  attract  his  attention.  Where- 
upon the  learned  judge  ordered  the  verdict  to  be  entered  for  the 
plaintiff,  reserving  leave  to  the  defendant  to  move  to  enter  a  verdict 
for  him  if  the  court  should  be  of  opinion  that  he  had  wrongly  directed 
the  jury  in  telling  them  that,  to  find  the  issue  on  the  third  plea  for 
the  defendant,  they  must  find  that  the  plaintiff  laid  his  hands  upon 
him  with  a  hostile  intention. 

Shee,  Serjt.,  in  the  same  term,  having  obtained  a  rule  nisi  accord- 
ingly, 

Beasley  now  showed  cause.  The  question  is,  whether  the  intention 
of  the  plaintiff  is  material  to  be  considered  in  order  to  determine 
whether  there  was  an  assault  and  battery.  In  Rawlings  v.  Till,  3 
M.  &  W.  28,  Parke,  B.,  referring  to  Wiffin  v.  Kincard,  2  B.  &  P.  N.  R. 
471,  where  it  was  held  that  a  touch  given  by  a  constable's  staff  does 
not  constitute  a  battery,  pointed  out,  as  the  ground  of  that  decision, 
that  there  the  touch  was  merely  to  engage  the  plaintiff's  attention. 
[Martin,  B.  Suppose  two  persons  were  walking  near  each  other, 
and  one  turned  round,  and  in  so  doing  struck  the  other:  surely  that 
would  not  be  a  battery.  Pollock,  C.  B.  There  may  be  a  distinction 
for  civil  and  criminal  purposes.  Channell,  B.  It  was  necessary  to 
prove  an  indictable  assault  and  battery  in  order  to  sustain  the  plea.] 
The  maxim,  Adics  nonfadt  reum  nisi  mens  sit  rea  appUes.  He  referred 
also  to  Pursell  v.  Horn,  8  A.  &  E.  602;  Archbold's  Criminal  Law, 
p.  524  (12th  ed.);  Scott  v.  Shepherd,  2  W.  Bl.  892. 

Petersdorff,  Serjt.,  and  Francis,  in  support  of  the  rule.  The  learned 
judge's  direction  was  defective  in  introducing  the  word  "  hostile." 


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SECT.  I.]  DE  MARENTILLE  t;.  OLIVEB  15 

In  order  to  constitute  an  assault,  it  is  enou^  if  the  act  be  done  against 
the  will  of  the  party.  There  are  several  cases  where  it  has  been  held 
that  an  assault  has  been  committed  where  there  was  no  intention  to 
do  the  act  complained  of  in  a  hostile  way,  as  in  the  case  of  a  prize- 
fight. Rex  V.  Perkins,  4  Car.  &  P.  537.  So  a  surgeon  assisting  a 
female  patient  to  remove  a  portion  of  her  dress.  Rex  v.  Rosinski 
1  Moody  C.  C.  19.  Here  the  plaintiff  interfered  with  the  defendant 
in  the  execution  of  his  duty.  In  Hawkins'  Pleas  of  the  Crown,  vol.  i. 
p.  263,  it  is  said,  "  Any  injury  whatever,  be  it  never  so  small,  being 
actually  done  to  the  person  of  a  man  in  an  angry,  or  revengeful,  or 
rude,  or  insolent  manner,  as  by  spitting  in  his  face,  or  any  way  touch- 
ing him  in  anger,  or  violently  jostling  him  out  of  the  way,  are  batteries 
in  the  eye  of  the  law."  [Bramwell,  B.  I  think  that  the  jostling 
spoken  of  must  mean  a  voluntary  jostling.] 

Pollock,  C.  B.  I  am  of  opinion  that  the  rule  must  be  discharged. 
The  jury  found  that  what  the  plaintiff  did  was  done  with  the  intent 
to  attract  the  attention  of  the  defendant,  not  with  violence  to  justify 
giving  the  plaintiff  into  custody  for  an  assault.  The  defendant 
treated  it  as  a  criminal  act,  and  gave  the  plaintiff  into  custody.  We 
are  called  on  to  set  aside  a  verdict  for  the  plaintiff,  on  the  ground  that 
he  touched  the  defendant.^   There  is  no  foundation  for  the  appUcation. 

Mabtin,  B.  I  am  of  the  same  opinion.  The  assault  and  battery 
which  the  defendant  was  bound  to  establish  means  such  an  assault  as 
would  justify  the  putting  in  force  the  criminal  law  for  the  purpose  of 
bringing  the  plaintiff  to  justice.  It  is  necessary  to  show  some  act 
which  justified  the  interference  of  the  poHce  officer.  Touching  a 
person  so  as  merely  to  call  his  attention,  whether  the  subject  of  a  civil 
action  or  not,  is  not  the  ground  of  criminal  proceeding.  It  is  clear 
that  it  is  no  battery  within  the  definition  given  by  Hawkins. 

CHAimELL,  B.  I  am  of  the  same  opinion.  Looking  at  the  plea,  it 
is  obvious  that  it  was  not  proved. 

Bramwell,  B.,  concurred  Rvle  discharged. 


DE  MARENTILLE  v.  OLIVER 

Supreme  Court,  New  Jersey,  February  Term,  1808. 

Reported  in  1  Pennington^  379. 

This  was  action  of  trespass,  brought  by  the  defendant  in  this  court, 
against  the  plaintiff  in  certiorari.  The  state  of  demand  charged  the 
defendant  below,  that  he  unlawfully,  forcibly,  and  with  great  vio- 
lence, with  a  large  stick,  struck  the  horse  of  the  plaintiff,  on  the  pub- 
lic highway,  which  said  horse  was  then  before  a  carriage,  in  which  the- 
plaintiff  was  riding,  on  the  said  pubUc  highway,  to  the  damage  of  the 

*  Courtney  v,  Kneib,  131  Mo.  App.  204  Accord,   Compare  Reynolds  v.  Piereon, 
29  Ind.  App.  273. 


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16  OBERLIN  V.  UPSON  [CHAP.  L 

plaintiff  fifty  dollars.  This  cause  was  tried  by  a  jury,  and  verdict  and 
judgment  for  the  plaintiff,  $15  damages.  It  was  assigned  for  error 
that  the  suit  was  brought  before  the  justice  to  recover  damages  for  an 
assault  and  battery,  when,  by  law,  such  an  action  cannot  be  supported 
before  a  justice  of  the  peace. 

Pennington,  J.^  To  attack  and  strike  with  a  club,  with  violence, 
the  horse  before  a  carriage,  in  which  a  person  is  riding,  strikes  me  as 
an  assault  on  the  person;  ^  and  if  so,  the  justice  had  no  jurisdiction  of 
the  action. 

But  if  this  is  to  be  considered  as  a  trespass  on  the  property,  uncon- 
nected with  an  assault  on  the  person,  I  think  that  it  was  incumbent 
on  the  plaintiff  below  to  state  an  injury  done  to  the  horse,  whereby 
the  plaintiff  suffered  damage;  that  he  was  in  consequence  of  the  blow 
bruised  or  woimded,  and  unable  to  perform  service;  or  that  the  plain- 
tiff had  been  put  to  expense  in  curing  of  him,  or  the  like.  All  the  prec- 
edents of  declarations  for  injuries  done  to  domestic  animals,  as  far  as 
my  recollection  goes,  are  in  that  way;  and  I  think,  with  good  reason. 
Suppose  a  man,  seeing  a  stranger's  horse  in  the  street,  was  to  strike 
him  with  a  whip,  or  a  large  stick,  if  you  please,  and  no  injury  was  to 
ensue,  could  the  owner  of  the  horse  maintain  an  action  for  this  act  ? 
I  apprehend  not.  For  these  reasons,  I  incline  to  think,  that  this 
judgment  ought  to  be  reversed. 

KiRKPATRicK,  C.  J.    Concurred  in  the  reversal. 

Judgment  reversed. 

OBERLIN  V.  UPSON 
Supreme  Court,  Ohio,  January  Term,  1911. 
Reported  in  84  Ohio  State  Reports,  111. 

Davis,  J.*  Under  the  common  law  of  England  as  it  has  been  recog- 
nized and  administered  in  this  country,  a  woman  cannot  maintain 
against  her  seducer  an  action  for  damages  arising  from  her  own 
seduction.  This  is  frankly  admitted  by  the  counsel  for  the  plaintiff  in 
error;  but  they  ask  a  reversal  of  the  judgment  below  upon  the  ground 
that  the  plaintiff  was  induced  to  consent  to  the  soUcitations  of  the 
defendant  by  a  betrayal  of  the  love  and  confidence  which  had  been 

^  A  part  of  the  case,  relating  to  a  point  of  practice,  is  omitted. 

«  Dodwell  V.  Burford,  1  Mod.  24;  Hopper  v.  Reeve,  7  Taunt.  698;  Spear  t». 
Chapman,  8  Ir.  L.  R.  461;  Reynolds  v.  Piereon,  29  Ind.  App.  273;  Burdick  v, 
Worrall,  4  Barb.  596  (semble):  Bull  v.  Colton,  22  Barb.  94;  Clark  v.  Downing, 
55  Vt.  269  Accord.    But  see  Kirland  v.  State,  43  Ind.  146. 

An  injury  to  the  clothes  on  one's  back  is  a  trespass  on  the  person^  Regina  v. 
Day,  1  Cox,  C.  C.  207.  So  is  the  removal  of  an  ulster  from  the  plaintiff,  Geraty  v. 
Stem,  30  Hun,  426;  or  seizing  anything  in  the  plaintiff's  hand,  Scott  v.  State,  118 
Ala.  115;  Dyk  v.  De  Young,  35  111.  App.  138;  Steinman  v.  Baltmiore  Laundry  Co., 
109  Md.  62  Isemble);  Respublica  v.  De  Longchamps,  1  Dall.  Ill;  or  cutting  a  rope 
connecting  the  plaintiff  with  his  slave,  State  v.  Davis,  1  Hill  (S.  C.)  46. 

*  The  statement  of  the  pleadings  and  the  arguments  of  counsel  are  omitted. 


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SECT.  I.]  OBERLIN  t;.  UPSON  17 

engendered  in  her  by  a  period  of  courtship  and  by  a  promise  of  mar- 
riage made  by  him.  Confessedly  this  is  not  an  action  ex  contractu 
upon  a  promise  of  marriage,  in  which  the  seduction  might  be  pleaded 
and  proved  as  an  aggravation  of  damages;  ^  but  it  is  clearly  an  at- 
tempt to  recover  ex  delicto.  There  is  no  averment  of  mutual  promises 
or  of  an  agreement  to  marry;  and  an  analysis  of  the  amended  petition 
discloses  no  more  than  that  the  defendant's  promise  was  one  of  the 
blandishments  by  which  he  accomplished  his  purpose.  The  case, 
therefore,  presents  no  exception  to  the  common  law  rule;  for  there  is 
no  claim  of  fraud,  violence  or  artifice  other  than  mere  soUcitation. 

The  theory  of  the  common  law  is  that,  since  adultery  and  fornica- 
tion are  crimes,*  the  woman  is  particeps  criminis  and  hence  that  she 
cannot  be  heard  to  complain  of  a  wrong  which  she  helped  to  produce. 
It  may  be  conceded  that  some  of  the  arguments  adduced  here  might 
be  fairly  persuasive  if  addressed  to  the  legislatxire.  Indeed  in  several 
of  the  states  statutes  have  been  enacted  authorizing  such  an  action; 
but  a  careful  study  of  the  decisions  in  those  states,  limiting  and  con- 
struing those  statutes,  raises  a  doubt  whether  the  legislation  is  a  real 
advance  upon  the  common  law.  8  Ann.  Cas.  1115,  note.  There  is, 
however,  no  such  statute  in  this  state  and  the  common  law  rule 
applies. 

The  judgment  of  the  circuit  court  is  Affirmed* 

Spear,  C.  J.,  Shauck,  Price,  and  Johnson,  JJ.,  concur. 

Donahue,  J.,  not  participating. 

»  Berry  v.  Da  Coeta,  L.  R.  1  C.  P.  331;  Collins  v.  Mack,  31  Ark.  684;  Hattin  p. 
Chapman,  46  Conn.  607;  Graves  t;.  Rivers,  123  Ga.  224;  Tubbs  v.  Van  Kleek,  12 
lU.  446;  Tyler  v.  Salley,  82  Me.  128;  Sauer  v.  Schulenberg,  33  Md.  288;  Sherman 
V.  Rawson,  102  Mass.  395;  Kelley  v.  Riley,  106  Mass.  339;  Bennett  v.  Beam,  42 
Mich.  346;  Schmidt  v.  Dumham,  46  Minn.  227;  Green  v.  Spencer,  3  Mo.  318; 
Mussehnan  t;.  Barker,  26  Neb.  737;  Cofl  v.  Wallace,  24  N.  J.  Law,  291;  Kniffen  v. 
McConnell,  30  N.  Y.  285;  Spellings  v.  Parks.  104  Tenn.  351;  Daggett  v,  Wallace, 
75  Tex.  352;  Giese  t;.  Schultz.  69  Wis.  621  Accord. 

Weaver  v.  Bachert,  2  Pa.  St.  80;  Wrynn  v.  Downey,  27  R.  I.  454  Contra. 

'  But  see  4  Blackstone,  Conmientaries,  65;  1  Bishop,  New  Criminal  Law.  {  38. 

»  Beseler  v.  Stephani,  71  111.  400;  Woodward  v.  Anderson,  9  Bush,  624;  Paul  v. 
Frazier,  3  Mass.  71;  Welsund  v.  Schueller,  98  Minn.  475;  Robinson  v.  Musser,  78 
Mo.  153;  Hamilton  v.  Lomax,  26  Barb.  615;  Weaver  v.  Bachert,  2  Pa.  St.  80; 
Conn  V.  Wilson,  2  Overt.  233  Accord.    See  Desborough  v.  Homes,  1  F.  &  F.  6. 

An  action  is  allowed  by  statute  in  some  jurisdictions.  Marshall  v.  Taylor,  98 
Cal.  55;  Swett  v.  Grav,  141  Cal.  83:  Mcllvain  v.  Emery,  88  Ind.  298;  Verwers  v. 
Carpenter,  166  la.  273;  Watson  t;.  Watson,  49  Mich.  540;  Hood  v.  Sudderth,  111 
N.  C.  215;  Breon  v.  Henkle.  14  Or.  494.  The  Scotch  law  is  to  the  same  effect. 
Smith,  Law  of  Damages  in  Scotland,  128.  Under  these  statutes  it  has  been  held 
that  there  must  be  a  real  seduction :  **  Consent  must  be  prociued  by  some  trick  or 
artifice  other  than  mere  solicitation.''  Brown  v.  Kingsley,  38  la.  220.  Compare 
Breon  v.  Henkle,  14  Or.  494. 

Even  without  a  statute  a  guardian  is  liable  in  damages  for  the  seduction  of  his 
ward.  Graham  v.  Wallace,  50  App.  Div.  101.  See  cOso  Smith  v.  Richards,  29 
Conn.  232. 


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18  BELL  V.  HANSLEY  [CHAP.  I. 

BELL  V.  HANSLEY 
Supreme  Court,  North  Carolina,  December  Term,  1855. 

Reported  in  3  JoneSf  13L 

This  was  an  action  of  trespass,  assault,  and  battery,  tried  before 
Ellis,  Judge,  at  the  fall  term,  1855,  of  New  Hanover  Superior  Court. 

The  plaintiff  proved  the  assault  and  battery;  and  there  was  evi- 
dence tending  to  show  a  mutual  affray  and  fighting  by  consent. 

But  his  Honor  was  of  opinion,  and  so  advised  the  jury,  that  not- 
withstanding the  fact  that  the  parties  had  mutually  assented  to  an 
affray,  the  plaintiff  was,  nevertheless,  entitled  to  recover;  but  that 
the.  fact  relied  on  as  a  defence  was  proper  to  be  considered  by  the 
jury  in  mitigation  of  damages.  The  defendant  excepted  to  these 
instructions.  Verdict  for  the  plaintiff .    Judgment  and  appeal, 

Nash,  C.  J.  This  case  presents  the  question  whether,  when  two 
men  fight  together,  thereby  committing  an  affray,  either  is  guilty  of 
an  assault  and  battery  upon  the  other.  Justice  Buller,  in  his  Nisi 
Prius,  at  page  16,  says,  each  does  commit  an  assault  and  battery  upon 
the  other,  and  that  each  can  maintain  an  action  for  it.  He  refers  to  a 
case  at  Abingdon,  Boulter  v.  Clark,  when  Serjeant  Hajrward  appeared 
for  the  defendant,  and  offered  to  prove  that  the  parties  fought  by  con- 
sent and  insisted  that  this,  imder  the  maxim  volenti  non  fit  injuria, 
appUed.  Parker,  Chief  Baron,  denied  it,  and  said,  "  the  fighting  being 
unlawful,  the  consent  of  the  plaintiff  to  fight  would  be  no  bar  to  his 
action,  and  that  he  was  entitled  to  a  verdict."  Mr.  Stephens,  in  his 
Nisi  Prius,  211,  la3rs  down  the  same  doctrine:  "  If  two  men  engage  in 
a  boxing  match,  an  action  can  be  sustained  by  either  of  them  against 
the  other,  if  an  assault  be  made ;  because  the  act  of  boxing  is  imlawf  ul, 
and  the  consent  of  the  parties  to  fight  cannot  excuse  the  injury." 

Per  Curiam,    Judgment  affirmed,^ 

1  Boulter  v.  Clarke,  Bull.  N.  P.  16;  Reg.  v.  Coney.  8  Q.  B.  D.  534. 538, 546, 549, 
667;  Logan  v,  Austin,  1  Stewart  (Ala.)  476;  Cadwell  v,  Farrell.  28  lU.  438;  Adams 
V.  Waggoner,  33  Ind.  531;  Lund  v,  Tyler,  115  la.  236;  McNeil  v.  Mullin,  70  Kan. 
634;  Galbraith  v.  Fleming,  60  Mich.  403:  Grotton  v.  Glidden,  84  Me.  589;  Com- 
monwealth V.  Colburg,  119  Mass.  350  (semble);  Lizana  t;.  Lang.  90  Miss.  469; 
Jones  V.  Gale,  22  Mo.  App.  637;  Morris  v.  Miller,  83  Neb.  218;  Stout  v.  Wren,  1 
Hawks  (N.  C),  420;  Barholt  v.  Wright,  45  Ohio  St.  177  (explaining  Champer  v. 
State,  14  Ohio  St.  437) ;  McCue  v,  Klem,  60  Tex.  168  (aemble) ;  WiUey  v.  Carpenter, 
64  Vt.  212;  Shay  v.  Thompson,  69  Wis.  540;  Miller  v.  Bayer,  94  Wis.  124  (procur- 
ing an  abortion  with  plaintiff's  consent)  Accord. 

Reg.  V.  Coney,  15  Cox,  C.  C.  46  (semble)j  per  Hawkins  J.;  Hegarty  v.  Shine, 
L.  R.  4  Ir.  288,  294  (semble);  Goldnamer  v,  O'Brien,  98  Ky.  569  (procuring  an 
abortion  with  plaintiff's  consent):  Lykins  v.  Hamrick,  144  Ky.  80,  Contra,  If  the 
plaintiff  is  injured  by  the  defendant,  both  being  engaged  in  an  illegal  charivari 
party,  he  cannot  recover  damages  from  the  defendant.  Gilmore  v.  Fuller,  198  111. 
130. 

As  to  injury  in  the  course  of  a  "  friendly  scuffle,"  see  Gibeline  v.  Smith,  106  Mo. 
App.  545. 


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SECT.  II.]  GENNER  V.  SPARKE8  19 

Section  II 
Imprisonment 

Note  by  Thorpe,  C.  J.,  1348.    . 
Reported  in  Year  Book,  Liber  Assisarunif  folio  104,  placUum  85. 

There  is  said  to  be  an  imprisonment  in  any  case  where  one  is 
arrested  by  force  and  against  his  will,  although  it  "be  on  the  high  street 
or  elsewhere,  and  not  in  a  house,  &c.^ 

GENNER  t;.  SPARKES 
In  the  King's  Bench,  Trinity  Term,  1704. 

Reported  in  1  Salkeldy  79. 

Genner,  a  bailiff,  having  a  warrant  against  Sparkes,  went  to  him 
in  his  yard,  and,  being  at  some  distance,  told  him  he  had  a  warrant, 
and  said  he  arrested  him.  Sparkes,  having  a  fork  in  his  hand,  keeps 
off  the  bailiff  from  touching  him,  and  retreats  into  his  house.  And 
this  was  moved  as  a  contempt.  Et  per  Curiam,  The  bailiff  cannot 
have  an  attachment,  for  here  was  no  arrest  nor  rescous.  Bare  words 
will  not  make  an  arrest;  but  if  the  bailiff  had  touched  him,  that  had 
been  an  arrest,*  and  the  retreat  a  rescous,  and  the  bailiff  might  have 
pursued  and  broke  open  the  house,  or  might  have  had  an  attachment 
or  a  rescous  against  him ;  but  as  this  case  is,  the  bailiff  has  no  remedy, 
but  an  action  for  the  assault;  for  the  holding  up  of  the  fork  at  him 
when  he  was  within  reach,  is  good  evidence  of  that.^ 

1  McNay  v.  Stratton,  9  111.  App.  215;  Price  v.  Bailey,  66  111.  48;  Hildebrand  v. 
McCnim,  101  Ind.  61;  Smith  v.  State,  7  Humph.  43;  Sorenson  v.  Dundas,  50  Wis. 
3S5  Accord, 

Compare  Marshall  t;.  Heller,  55  Wis.  392.  For  recent  deffiiitions  see  Westberrj' 
V.  Clanton,  136  Ga.  795;  Coolahan  v.  Marshall  Field  &  Co.,  159  111.  App.  466; 
Efiwmson  v.  Smith,  29  Ind.  App.  451 :  Comer  v.  Knowles,  17  Kan.  436;  New  York 
R.  Co.  V.  Waldron,  116  Md.  441;  Smith  v,  Clark,  37  Utah,  116,  126. 

«  Anon.  1  Vent.  306;  Anon.  7  Mod.  8;  Whithead  v.  Keyes,  3  All.  495  Accord. 

*  If  the  bailiff,  who  has  a  process  against  one,  says  to  him  when  he  is  on  horse- 
back or  in  a  coach.  "  You  are  my  prisoner;  I  have  a  writ  against  you,"  upon  which 
he  submits,  turns  back,  or  goes  with  him,  though  the  bailiff  never  touched  him,  yet 
it  is  an  arrest,  because  he  submitted  to  the  process;  but  if,  instead  of  going  with 
the  bailiff,  he  had  gone  or  fled  from  him,  it  could  be  no  arrest,  unless  the  bailm  laid 
hold  of  him.    Homer  v,  Battyn,  Bull.  N.  P.  62. 


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20  WOOD  V.  LANE  [CHAP.  I. 

WOOD  V.  LANE 

At  Nisi  Prius,  coram  Tindal,  C.  J.,  December  13,  1834. 

Reported  in  6  CarringUm  <fe  Paynes  774. 

Trespass  and  false  imprisonment.  Pleas:  Not  guilty;  and  leave 
and  license. 

It  was  proved  by  a  member  of  the  plaintiff's  family  that  he  was  a 
flannel  draper  in  CaAle  Street,  Holbom,  and  that  on  the  3d  of  April 
he  came  home  accompanied  by  the  defendants,  Cleaton  and  Lane; 
and  that  the  plaintiff  said  Cleaton  had  arrested  him  at  Mr.  Sanders's, 
in  Holbom;  that  the  plaintiff's  wife  asked  the  defendant  Lane,  who 
was,  in  fact,  clerk  to  Cleaton's  attorney,  if  he  had  any  authority,  and 
he  said  he  had;  and  being  asked  his  name,  said,  '^  My  name  is  Selby 
of  Chancery  Lane."  Lane  made  several  inquiries  about  the  plaintiff's 
property,  and  said  he  would  give  him  time  till  eight  o'clock  in  the 
evening;  upon  which  the  other  defendant,  Cleaton,  said,  "  How  can 
you  do  that  ?  I  will  not  allow  you  to  give  him  any  time  at  all."  It 
was  proved  that,  in  fact,  Mr.  Selby  had  no  bailable  process  against  the 
plaintiff.  A  witness  was  also  called,  who  proved  that,  in  conversation 
with  the  defendant  Lane  on  the  subject,  he  said  it  was  a  foolish  piece 
of  business;  that  Mr.  Cleaton  had  caused  him  to  do  it;  that  he  was 
very  sorry  for  it,  but  he  thought  Mr.  Cleaton  would  indemnify  him. 
There  was  some  uncertainty  in  the  evidence  of  the  conversation 
whether  the  defendant  Lane  admitted  or  not  that  he  had  taken  the 
plaintiff  by  the  arm. 

According  to  the  evidence  of  Mr.  Sanders,  at  whose  house  the  trans- 
action commenced,  the  plaintiff  was  bargaining  with  him  for  the  sale 
of  some  goods,  and  had  just  made  out  the  invoice,  which  was  lying 
before  him,  when  the  defendant  Cleaton  came  in  alone,  and  asked  the 
plaintiff  several  times  to  pay  the  amoimt  he  owed  him,  or  some  money 
on  accoimt.  The  plaintiff  said  he  would  not;  upon  which  Cleaton 
went  just  outside  the  door,  and  returned  immediately,  followed  by 
the  defendant  Lane,  and  pointing  to  the  plaintiff,  said,  "  This  is  the 
gentleman."  The  plaintiff  tore  up  the  invoice  he  had  written,  and 
threw  it  on  the  fire,  and  said,  "  I  suppose  I  am  to  go  with  you."  The 
answer  given  was,  *'  Yes."  The  plabitiff  and  the  two  defendants  went 
away  together. 

Talfourdy  Serjt.,  for  the  defendant.  No  arrest  has  been  proved. 
Sanders,  who  was  present,  says  nothing  of  the  lajdng  hold  of  the 
plaintiff. 

Tindal,  C.  J.  The  question  is,  whether  the  plaintiff  went  volun- 
tarily from  Mr.  Sanders's  to  his  own  house,  or  whether  he  went  in 
consequence  of  the  acts  of  the  defendants.  If  you  put  your  hand  upon 
a  man,  or  tell  him  he  must  go  with  you,  and  he  goes,  supposing  you  to 


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SECT.  II.]  PIKE  V.  HANSON  21 

have  the  power  to  enforce  him,  is  not  that  an  arrest  ?    May  you  not 
arrest  without  touching  a  man  ? 

White  referred  to  the  case  of  Arrowsmith  v.  Le  Mesurier,  2  B.  & 
P.  N.  R.  211. 

TiNDAL,  C.  J.  That  is  a  case  which  has  often  been  spoken  of  as 
going  to  the  very  extreme  point;  but  in  that  case  the  jury  foimd  that 
the  plaintiff  went  volimtarily  with  the  officer.  And  in  this  case,  if  you 
can  persuade  the  jury  that  the  plaintiff  went  volimtarily,  you  may 
succeed. 

Talfourd^  Serjt.,  then  addressed  the  jury  for  the  defendants.  There 
was  no  real  compulsion.  No  writ  was  produced.  It  was  only  an 
endeavor  by  a  manoeuvre  to  make  the  plaintiff  do  what  he  ought,  but 
would  not,  viz.,  pay  the  money  which  he  owed. 

TiNDAL,  C.  J.,  in  summing  up,  told  the  jury,  that,  if  the  plaintiff 
was  acting  as  an  imwilling  agent,  at  the  time  and  against  his  own  will 
when  he  went  to  his  own  house  from  that  of  Sanders,  it  was  just  as 
much  an  arrest  as  if  the  defendants  had  forced  him  along. 

The  jury  found  for  the  plaintiff.    Damages,  £10.^ 


PIKE  V.  HANSON 

SuPEBiOR  Court    of   Judicature,  New  Hampshire,  December 

Term,  1838. 
Reported  in  9  New  Hampshire  Reports,  491. 

Trespass,  for  an  assault  and  false  imprisonment  on  the  1st  day  of 
July,  A.D.  1837.  The  action  was  commenced  before  a  justice  of  the 
peace.  The  defendants  pleaded  severally  the  general  issue.  It  ap- 
peared in  evidence  that  the  defendants  were  selectmen  of  the  town  of 
Madbury  for  the  year  1836;  that  they  assessed  a  list  of  taxes  upon  the 
inhabitants  of  said  town,  among  whom  was  the  plaintiff,  and  com- 
mitted it  to  Nathan  Brown,  collector  of  said  town,  for  collection. 
Brown,  after  having  given  due  notice  to  the  plaintiff,  being  in  a  room 
with  her,  called  upon  her  to  pay  the  tax,  which  she  declined  doing  until 
arrested.  He  then  told  her  that  he  arrested  her,  but  did  not  lay  his 
hand  upon  her;  and  thereupon  she  paid  the  tax. 

Upon  this  evidence  the  defendants  objected  that  the  action  could 
not  be  maintained,  because  there  was  no  assault. 

It  did  not  appear  that  the  defendants  had  been  sworn,  as  directed 
by  the  statute  of  January  4,  1833.  A  verdict  was  taken  for  the 
plaintiff,  subject  to  the  opinion  of  the  court. 

'  Chinn  v.  Morris,  2  Car.  &  P.  361:  Pocock  v.  Moore,  Ry.  k  M.  321;  Peters  v, 
Stanway,  6  Car.  &  P.  737;  Granger  v.  Hill,  4  Bing.  N.C.  212;  Warner  v,  Riddiford,  4 
C.  B.  N.  S.  180  (criticizing  Arrowsmith  v.  Le  Mesurier,  2  B.  &  P.  N.  R.  211); 
Sindeton  v.  Kansas  City  Base  Ball  Co.,  172  Mo.  App.  299  Acc(yrd. 

To  hold  a  man  by  the  sleeve  without  professing  to  arrest  him  or  leading  him  to 
believe  he  is  not  free  to  get  away  is  not  an  imprisonment.  Macintosh  v,  Cohen,  24 
N.  Zeal.  L.  R.  626. 


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22  PIKE  V.  HANSON  [CHAP.  I. 

Wilcox,  J.^  .  .  .  But  it  is  contended  that  in  the  present  case 
there  has  been  no  assault  committed,  and  no  false  imprisonment. 
Bare  words  will  not  make  an  arrest :  there  must  be  an  actual  touching 
of  the  body;  or,  what  is  tantamoimt,  a  power  of  taking  immediate 
possession  of  the  body,  and  the  party's  submission  thereto.  Genner 
V,  Sparkes,  1  Salk.  79.  Where  a  baiUff,  having  a  writ  against  a  person, 
met  him  on  horseback,  and  said  to  him,  "  You  are  my  prisoner,"  upon 
which  he  turned  back  and  submitted,  this  was  held  to  be  a  good  arrest, 
though  the  bailiff  never  laid  hand  on  him.  But  if,  on  the  bailiff's 
saying  those  words,  he  had  fled,  it  had  been  no  arrest,  unless  the  bailiff 
had  laid  hold  of  him.  Homer  v.  Battjm,  Buller's  N.  P.  62.  The  same 
doctrine  is  held  in  other  cases.  Russen  v,  Lucas  &  al.,  1  Car.  &  P.  153; 
Chinn  v,  Morris,  2  Car.  &  P.  361;  Pocock  v,  Moore,  Ry.  &  M.  321; 
Strout  V.  Gooch,  8  Greenl.  126;  Gold  v.  Bissell,  1  Wend.  210. 

Where,  upon  a  magistrate's  warrant  being  shown  to  the  plaintiff, 
the  latter  voluntarily  and  without  compulsion  attended  the  constable 
who  had  the  warrant  to  the  magistrate,  it  was  held  there  was  no  suf- 
ficient imprisonment  to  support  an  action.  Arrowsmith  v.  Le  Me- 
surier,  2  B.  &  P.  N.  R.  211.  But  in  this  case  there  was  no  declaration 
of  any  arrest,  and  the  warrant  was  in  fact  used  only  as  a  summons. 
And  if  the  decision  cannot  be  sustained  upon  this  distinction,  it  must 
be  regarded  as  of  doubtful  authority. 

Starkie  says  that  in  ordinary  practice  words  are  sufficient  to  consti- 
tute an  imprisonment,  if  they  impose  a  restraint  upon  the  person,  and 
the  plaintiff  is  accordingly  restrained;  for  he  is  not  obliged  to  incur 
the  risk  of  personal  violence  and  insult  by  resisting,  imtil  actual  vio- 
lence be  used.  3  Stark.  Ev.  1113.  This  principle  is  reasonable  in 
itself,  and  is  fully  sustained  by  the  authorities  above  cited.  Nor  does 
it  seem  necessary  that  there  should  be  any  very  formal  declaration  of 
an  arrest.  If  the  oflScer  goes  for  the  purpose  of  executing  his  warrant; 
has  the  party  in  his  presence  and  power;  if  the  party  so  understands 
it,  and  in  consequence  thereof  submits,  and  the  officer,  in  execution  of 
the  warrant,  takes  the  party  before  a  magistrate,  or  receives  money  or 
property  in  discharge  of  his  person,  we  think  it  is  in  law  an  arrest, 
although  he  did  not  touch  any  part  of  the  body. 

In  the  case  at  bar,  it  clearly  appears  that  the  plaintiff  did  not  in- 
tend to  pay  the  tax,  imless  compelled  by  an  arrest  of  her  person.  The 
collector  was  so  informed.  He  then  proceeded  to  enforce  the  collection 
of  the  tax,  —  declared  that  he  arrested  her,  —  and  she,  imder  that  re- 
straint, paid  the  money.  This  is  a  sufficient  arrest  and  imprisonment 
to  sustain  the  action,  and  there  must,  therefore,  be 

Judgment  on  the  verdict? 

^  Part  of  the  case,  not  relating  to  imprisonment,  has  been  omitted. 

»  Johnson  v.  Tompkins,  Baldw.  C.  C.  571,  601;  Collins  v.  Fowler,  10  Ala.  858; 
Courtoy  v,  Dozier,  20  Ga.  369;  Hawk  v.  Ridgwav,  33  111.  473;  Brushaber  v.  Stege- 
mann,  22  Mich.  266;  Josselyn  v.  McAllister,  25  Mich.  45;  Moore  t>.  Thompson,  92 


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SECT,  n.]  FOTHERINGHAM  t;.  ADAMS  EXPRESS  CO.  23 

FOTHERINGHAM  v.  ADAMS  EXPRESS  CO. 

In  the  United  States  Circuit  Court,  Eastern  District, 

Missouri,  September  24,  1888. 

Reported  in  36  Federal  Reporter,  252. 

Thayer,  J.*  With  reference  to  the  motion  for  a  new  trial  which  has 
been  filed  in  this  case  and  duly  considered,  it  will  suffice  to  say,  that  I 
entertain  no  doubt  that  the  jury  were  warranted  in  finding  that  plain- 
tiff was  unlawfully  restrained  of  his  liberty  from  about  the  27th  or 
28th  of  October  until  tEe  10th  of  November  following;  that  is  to  say, 
for  a  period  of  about  two  weeks.  The  testimony  in  the  case  clearly 
showed  that  during  that  period  he  was  constantly  guarded  by  detec- 
tives employed  by  defendant  for  that  purpose;  that  he  was  at  no  time 
free  to  come  and  go  as  he  pleased;  that  his  movements  were  at  all 
times  subject  to  the  control  and  direction  of  those  who  had  him  in 
charge;  that  he  was  urged  by  them  on  several  occasions  to  confess  Ms 
guilt,  and  make  known  his  confederates;  and  that  he  was  subjected 
to  repeated  examinations  and  cross-examinations  touching  the  rob- 
bery, of  such  character  as  clearly  to  imply  that  he  was  regarded  as  a 
criminal,  and  that  force  would  be  used  to  detain  him  if  he  attempted 
to  assert  his  liberty.  The  jury  in  all  probability  found  (as  they  were 
warranted  in  doing)  that  during  the  time  plaintiff  remained  in  com- 
pany with  the  detectives,  he  was  in  fact  deprived  of  all  real  freedom  of 
action,  and  that  whatever  consent  he  gave  to  such  restraint  was  an 
enforced  consent,  and  did  not  justify  the  detention  without  a  warrant. 
It  is  manifest  that  the  court  ought  not  to  disturb  the  finding  on  that 
issue.* 

Mich.  498;  Ahem  v.  Collins,  39  Mo.  145;  Strout  v.  Gooch,  8  Greenl.  126;  Mowry 
V.  Chase.  100  Mass.  79;  Emery  v.  Chesley,  18  N.  H.  198;  Browning  v.  Ritten- 
house,  40  N.  J.  Law,  230;  Hebrew  v.  Pulis,  73  N.  J.  Law,  621;  Gold  v.  Bissell,  1 
Wend.  210;  Van  Voorhees  v.  Leonard,  1  Thomp.  &  C.  148;  Searls  v.  Viets,  2 
Thomp.  &  C.  224;  Limbeck  v,  Gerry,  15  Misc.  663;  Martin  v.  Houck,  141  N.  C. 
317;  Huntington  v.  Shultz,  Harp.  452;  Mead  v.  Young,  2  Dev.  &  Batt.  521; 
Ha«dns  v.  Young,  2  Dev.  &  Batt.  527;  Jones  v.  Jones,  13  Ired.  448;  McCracken  v. 
Ansley,  4  Strob.  1;  Gunderson  t;.  Struebing,  125  Wis.  173  Accord. 

Submission  to  wrongful  detention  by  conductor  of  a  train  in  consequence  of  his 
representation  of  authority  to  detain  plaintiff  was  held  an  imprisonment  in  Whit- 
man V.  Atchison  R.  Co.,  85  Kan.  150. 

There  must  be  reasonable  ground  for  fear  that  defendant  will  use  force.  Powell 
V.  Champion  Fibre  Co.,  150  N.  C.  12. 

But  compare  Cottam  v,  Oregon  City,  98  Fed.  570,  deciding  that  a  submission  to 
arrest  rather  than  pay  an  ille^  license  fee  is  not  an  imprisonment. 

*  A  portion  of  the  case,  relating  to  damages,  is  omitted. 

*  As  to  "  shadowing  "  by  detectives,  see  Chappell  v.  Stewart,  82  Md.  323; 
People  t^.  Weiler,  179  N.  Y.  46;  Schultz  i;.  Ins.  Co.,  151  Wis.  537. 


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24  BIRD  V.  JONES  [CHAP.  I, 

BIRD  t;.  JONES 

In  the  Queen's  Bench,  Trinity  Vacation,  1845, 

Reported  in  7  Queen's  Bench  Reports,  742. 

This  action  was  tried  before  Lord  Denman,  C.  J.,  at  the  Middlesex 
sittings  after  Michaelmas  term,  1843,  when  a  verdict  was  found  for 
the  plaintiff. 

In  Hilary  term,  1844,  Thesiger  obtained  a  rule  nisi  for  a  new  trial, 
on  the  ground  of  misdirection. 

In  Trinity  term,  in  the  same  year  (June  5),  Piatt,  Humfrey,  and 
Hance  showed  cause,  and  Sir  F.  Thesiger,  SoUcitor-General,  supported 
the  rule. 

The  judgments  sufficiently  explain  the  nature  of  the  case. 

Cur.  adv.  vult. 

In  this  vacation  (9th  July),  there  being  a  difference  of  opinion  on 
the  bench,  the  learned  judges  who  heard  the  argument  deUvered 
judgment  seriatim. 

Coleridge,  J.  In  this  case,  in  which  we  have  unfortunately  been 
unable  to  agree  in  our  judgment,  I  am  now  to  pronoimce  the  opinion 
which  I  have  formed;  and  I  shall  be  able  to  do  so  very  briefly,  be- 
cause, having  had  the  opportunity  of  reading  a  judgment  prepared  by 
my  Brother  Patteson,  and  entirely  agreeing  with  it,  I  may  content 
myself  with  referring  to  the  statement  he  has  made  in  detail  of  those 
preliminary  points  in  which  we  all,  I  beUeve,  agree,  and  which  bring 
the  case  up  to  that  point  upon  which  its  decision  must  certainly  turn, 
and  with  regard  to  which  our  difference  exists. 

This  point  is,  whether  certain  facts,  which  may  be  taken  as  clear 
upon  the  evidence,  amoimt  to  an  imprisonment.  These  facts,  stated 
shortly,  and  as  I  imderstand  them,  are  in  effect  as  follows:  — 

A  part  of  a  pubUc  highway  was  inclosed,  and  appropriated  for  spec- 
tators of  a  boat-race,  paying  a  price  for  their  seats.  The  plaintiff  was 
desirous  of  entering-this  part,  and  was  opposed  by  the  defendant;  but, 
after  a  struggle,  during  which  no  momentary  detention  of  his  person 
took  place,  he  succeeded  in  climbing  over  the  inclosure.  Two  police- 
men were  then  stationed  by  the  defendant  to  prevent,  and  they  did 
prevent,  him  from  passing  onwards  in  the  direction  in  which  he  de- 
clared his  wish  to  go;  but  he  was  allowed  to  remain  unmolested  where 
he  was,  and  was  at  liberty  to  go,  and  was  told  that  he  was  so,  in  the 
only  other  direction  by  which  he  could  pass.  This  he  refused  for 
some  time,  and  during  that  time  remained  where  he  had  thus  placed 
himself. 

These  are  the  facts;  and,  setting  aside  those  which  do  not  properly 
bear  on  the  question  now  at  issue,  there  will  remain  these:  that  the 
plaintiff,  being  in  a  pubUc  highway  and  desirous  of  passing  along  it 
in  a  particular  direction,  is  prevented  from  doing  so  by  the  orders  of 


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SECT.  11.]  BIRD  V.  JONES  25 

the  defendant,  and  that  the  defendant's  agents  for  the  purpose  are 
policemen,  from  whom,  indeed,  no  mmeeessary  violence  was  to  be 
anticipated,  or  such  as  they  believed  unlawful,  yet  who  might  be  ex- 
pected to  execute  such  commands  as  they  deemed  lawful  with  all 
necessary  force,  however  resisted.  But  although  thus  obstructed,  the 
plaintiff  was  at  Uberty  to  move  his  person  and  go  in  any  other  direc- 
tion, at  his  free  will  and  pleasure;  and  no  actual  force  or  restraint  on 
his  person  was  used,  unless  the  obstruction  before  mentioned  amounts 
to  so  much. 

I  lay  out  of  consideration  the  question  of  right  or  wrong  between 
these  parties.  The  acts  will  amount  to  imprisonment,  neither  more 
nor  less,  from  their  being  wrongful  or  capable  of  justification. 

And  I  am  of  opinion  that  there  was  no  imprisonment.  To  call  it  so 
appears  to  me  to  confound  partial  obstruction  and  disturbance  with 
total  obstruction  and  detention.  A  prison  may  have  its  boimdary 
large  or  narrow,  visible  and  tangible,  or,  though  real,  still  in  the  con- 
ception only;  it  may  itself  be  movable  or  fixed;  but  a  boundary  it 
must  have,  and  that  boimdary  the  party  imprisoned  must  be  pre- 
vented from  passing;  he  must  be  prevented  from  leaving  that  place, 
within  the  ambit  of  which  the  party  imprisoning  would  confine  him, 
except  by  prison  breach.  Some  confusion  seems  to  me  to  arise  from 
confounding  imprisonment  of  the  body  with  mere  loss  of  freedom:  it 
is  one  part  of  the  definition  of  freedom  to  be  able  to  go  whithersoever 
one  pleases;  but  imprisonment  is  something  more  than  the  mere  loss 
of  this  power:  it  includes  the  notion  of  restraint  within  some  limits 
defined  by  a  will  or  power  exterior  to  our  own. 

In  Com.  Dig.  Imprisonment  (G),  it  is  said:  "  Every  restraint  of  the 
liberty  of  a  free  man  will  be  an  imprisonment."  For  this  the  author- 
ities cited  are  2  Inst.  482;  Cro.  Car.  209.  But  when  these  are  referred 
to,  it  will  be  seen  that  nothing  was  intended  at  all  inconsistent  with 
what  I  have  ventured  to  lay  down  above.  In  both  books  the  object 
was  to  point  out  that  a  prison  was  not  necessarily  what  is  commonly 
so  called,  a  place  locally  defined  and  appointed  for  the  reception  of 
prisoners.  Lord  Coke  is  commenting  on  the  statute  of  Westminster 
2d,^  in  priaona,  and  sa5rs:  '*  Every  restraint  of  the  liberty  of  a  freeman 
is  an  imprisonment,  although  he  be  not  within  the  walls  of  any  com- 
mon prison."  The  passage  in  Cro.  Car.  209,  is  from  a  curious  case  of 
an  information  against  Sir  Miles  Hobert  and  Mr.  Stroud  for  escaping 
out  of  the  Gate-house  Prison,  to  which  they  had  been  committed  by 
the  king.  The  question  was  whether,  imder  the  circumstances,  they 
had  ever  been  there  imprisoned.  Owing  to  the  sickness  in  London, 
and  through  the  favor  of  the  keeper,  these  gentlemen  had  not,  except 
on  one  occasion,  ever  been  within  the  walls  of  the  Gate-house.  The 
occasion  is  somewhat  singularly  expressed  in  the  decision  of  the  court, 

1  Stat.  13  Ed.  I.  c.  48. 


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26  BIRD  V,  JONES  [CHAP.  I. 

which  was  "  that  their  voluntary  retirement  to  the  close  stool  "  in  the 
Gate-house  "  made  them  to  be  prisoners."  The  resolution,  however, 
in  question  is  this:  "  that  the  prison  of  the  King's  Bench  is  not  any 
local  prison  confined  only  to  one  place,  and  that  every  place  where  any 
person  is  restrained  of  his  Uberty  is  a  prison;  as  if  one  take  sanctuary 
and  depart  thence,  he  shall  be  said  to  break  prison." 

On  a  case  of  this  sort,  which,  if  there  be  difficulty  in  it,  is  at  least 
purely  elementary,  it  is  not  easy  nor  necessary  to  enlarge,  and  I  am 
unwilling  to  put  any  extreme  case  hypothetically;  but  I  wish  to  meet 
one  suggestion,  which  has  been  put  as  avoiding  one  of  the  difficulties 
which  cases  of  this  sort  might  seem  to  suggest.  If  it  be  said  that  to 
hold  the  present  case  to  amount  to  an  imprisonment  would  turn  every 
obstruction  of  the  exercise  of  a  right  of  way  into  an  imprisonment,  the 
answer  is  that  there  must  be  something  like  personal  menace  or  force 
accompanymg  the  act  of  obstruction,  and  that,  with  this,  it  will 
amount  to  imprisonment.  I  apprehend  that  is  not  so.  If,  in  the 
course  of  a  night,  both  ends  of  a  street  were  walled  up,  and  there  was 
no  egress  from  the  house  but  into  the  street,  I  should  have  no  difficulty 
in  saying  that  the  inhabitants  were  thereby  imprisoned;  but  if  only 
one  end  were  walled  up,  and  an  armed  force  stationed  outside  to  pre- 
vent any  scaling  of  the  wall  or  passage  that  way,  I  should  feel  equally 
clear  that  there  was  no  imprisonment.  If  there  were,  the  street  would 
obviously  be  the  prison,  and  yet,  as  obviously,  none  would  be  con- 
fined to  it. 

Knowing  that  my  lord  has  entertained  strongly  an  opinion  directly 
contrary  to  this,  I  am  under  serious  apprehension  that  I  overlook 
some  difficulty  in  forming  my  own;  but,  if  it  exists,  I  have  not  been 
able  to  discover  it,  and  am  therefore  bound  to  state  that,  according  to 
my  view  of  the  case,  the  rule  should  be  absolute  for  a  new  trial.^ 

Lord  Denman,  C.  J.  I  have  not  drawn  up  a  formal  judgment  in 
this  case,  because  I  hoped  to  the  last  that  the  arguments  which  my 
learned  brothers  would  produce  in  support  of  their  opinion  might  alter 
mine.  We  have  freely  discussed  the  matter  both  orally  and  in  written 
communications;  but,  after  hearing  what  they  have  advanced,  I  am 
compelled  to  say  that  my  first  impression  remams.  If,  as  I  must 
beUeve,  it  is  a  wrong  one,  it  may  be  in  some  measure  accounted  for  by 
the  circumstances  attending  the  case.  A  company  unlawfully  ob- 
structed a  pubUc  way  for  their  own  profit,  extorting  money  from  pas- 
sengers, and  hiring  policemen  to  effect  this  purpose.  The  plaintiff, 
wishing  to  exercise  his  right  of  way,  is  stopped  by  force,  and  ordered 
to  move  in  a  direction  which  he  wished  not  to  take.  He  is  told  at  the 
same  time  that  a  force  is  at  hand  ready  to  compel  his  submission. 
That  proceeding  appears  to  me  equivalent  to  being  pulled  by  the 
collar  out  of  the  one  line  and  into  the  other. 

*  The  concurring  opinions  of  Williams  and  Patteson,  JJ.,  are  omitted. 


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SECT.  H.]  BIRD  V.  JONES  27 

There  is  some  difficulty,  perhaps,  in  defining  imprisonment  in  the 
abstract  without  reference  to  its  UlegaUty;  nor  is  it  necessary  for  me 
to  do  so,  because  I  consider  these  acts  as  amounting  to  imprisonment. 
That  word  I  imderstand  to  mean  any  restraint  of  the  person  by  force. 
In  Buller's  Nisi  Prius,  p.  22,  it  is  said:  "  Every  restraint  of  a  man's 
liberty  under  the  custody  of  another,  either  in  a  gaol,  house,  stocks, 
or  in  the  street,  is. in  law  an  imprisonment;  and  whenever  it  is  done 
without  a  proper  authority,  is  false  imprisonment,  for  which  the  law 
gives  an  action;  and  this  is  commonly  joined  to  assault  and  battery; 
for  every  imprisonment  includes  a  battery,  and  every  battery  an 
assault."  It  appears,  therefore,  that  the  technical  language  has  re- 
ceived a  very  large  construction,  and  that  there  need  not  be  any  touch- 
ing of  the  person:  a  locking  up  would  constitute  an  imprisonment, 
without  touching.  From  the  language  of  Thorpe,  C.  J.,  which  Mr. 
Selwyn  cites  from  the  Book  of  Assizes,  it  appears  that,  even  in  very 
early  times,  restraint  of  liberty  by  force  was  understood  to  be  the 
reasonable  definition  of  imprisonment. 

I  had  no  idea  that  any  person  in  these  times  supposed  any  particu- 
lar boimdary  to  be  necessary  to  constitute  imprisonment,  or  that  the 
restraint  of  a  man's  person  from  doing  what  he  desires  ceases  to  be 
an  imprisonment  because  he  may  find  some  means  of  escape. 

It  is  said  that  the  party  here  was  at  liberty  to  go  in  another  direc- 
tion. I  am  not  siu^  that  in  fact  he  was,  because  the  same  unlawful 
power  which  prevented  him  from  taking  one  course  might,  in  case  of 
acquiescence,  have  refused  him  any  other.  But  this  liberty  to  do 
something  else  does  not  appear  to  me  to  affect  the  question  of  im- 
prisonment. As  long  as  I  am  prevented  from  doing  what  I  have  a 
right  to  do,  of  what  importance  is  it  that  I  am  permitted  to  do  some- 
thing else  ?  How  does  the  imposition  of  an  unlawful  condition  show 
that  I  am  not  restrained  ?  If  I  am  locked  in  a  room,  am  I  not  im- 
prisoned, because  I  might  effect  my  escape  through  a  window,  or 
because  I  might  find  an  exit  dangerous  or  inconvenient  to  myself,  as 
by  wading  through  water,  or  by  taking  a  route  so  circuitous  that  ffy 
necessary  affairs  should  suffer  by  delay  ? 

It  appears  to  me  that  this  is  a  total  deprivation  of  liberty  with 
reference  to  the  purpose  for  which  he  lawfully  wished  to  employ  his 
liberty;  and,  being  effected  by  force,  it  is  not  the  mere  obstruction  of 
a  way,  but  a  restraint  of  the  person.  The  case  cited  as  occurring 
before  Lord  Chief  Justice  Tindal,  as  I  understand  it,  is  much  in  point. 
He  held  it  an  imprisonment  where  the  defendant  stopped  the  plaintiff 
on  his  road  till  he  had  read  a  Ubel  to  him.  Yet  he  did  not  prevent  his 
escaping  in  another  direction. 

It  is  said  that  if  any  damage  arises  from  such  obstruction,  a  special 
action  on  the  case  may  be  brought.  Must  I  then  sue  out  a  new  writ 
stating  that  the  defendant  employed  direct  force  to  prevent  my  going 
where  my  business  called  me,  whereby  I  sustained  loss  ?   And  if  I  do. 


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28  BIRD  V.  JONES  [CHAP4  I. 

is  it  certain  that  I  shall  not  be  told  that  I  have  misconceived  my 
remedy,  for  all  flows  from  the  false  imprisonment,  and  that  should 
have  been  the  subject  of  an  action  of  trespass  and  assault  ?  For  the 
jury  properly  found  that  the  whole  of  the  defendant's  conduct  was 
contmuous:  it  commenced  in  illegality;  and  the  plaintiff  did  right  to 
resist  it  as  an  outrageous  violation  of  the  liberty  of  the  subject  from 
the  very  first.  Ride  absolute.^ 

»  Wright  V.  Wilson,  1  Ld.  Raym.  739;  Croesett  ».  Campbell,  122  La.  659; 
Balmain  Ferry  Co.  v.  Robertson,  4  C.  L.  R.  (Australia)  379,  aff'd  [1910]  A.  C.  295; 
Queen  v.  Macquarie,  13  N.  S.  W.  Sup.  Ct.  R.  (Law)  264  (8e7nbU)Accord, 

See  Hawk  v.  Rid^way,  33  lU.  473;  Cullen  v,  Dickenson,  33  S.  D.  27. 
'   To  order  one  to  leave  a  boat  which  was  moored  to  a  wharf  and,  upon  his  re- 
fusal, to  set  the  boat  adrift  is  an  imprisonment.    Queen  v.  Macquarie,  13  N.  S.  W. 
Sup.  Ct.  R.  (Law)  264. 

Compare  Herd  v.  Weardale  Steel  Co.  [19131  3  K.  B.  771;  Robinson  v.  Ferry  Co. 
[19101  A.  C.  295;  Whittaker  t;.  Sanford,  110  Me.  77;  Talcott ».  National  Exhibi- 
tion Co.,  144  App.  Div.  337. 


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CHAPTER  II 

NEGLIGENT  INTERFERENCE 


Section  I 
Negligence  as  a  Ground  op  Liabilitt 

WEAVER  V.  WARD 

In  the  King's  Bench,  Easter  Term,  1616. 

Reported  in  Hobartf  134. 

Weaver  brought  an  action  of  trespass  of  assault  and  battery  against 
Ward.  The  defendant  pleaded  that  he  was,  amongst  others,  by  the 
commandment  of  the  lords  of  the  council,  a  trained  soldier  in  Lon- 
don, of  the  band  of  one  Andrews,  captain,  and  so  was  the  plaintiff: 
and  that  they  were  skirmishing  with  their  muskets  charged  with 
powder  for  their  exercise  in  re  militari  against  another  captain  and 
his  band;  and  as  they  were  so  skirmishing,  the  defendant,  casualiter 
et  per  infortunium  et  contra  voluniatem  sv^m,  in  discharging  his  piece, 
did  hurt  and  woimd  the  plaintiff;  which  is  the  same,  Ac,  absque  hoCj 
that  he  was  guilty  aliter  sive  qlio  modo.  And,  upon  demurrer  by  the 
plaintiff,  judgment  was  given  for  him;  for,  though  it  were  agreed  that 
if  men  tilt  or  tourney  in  the  presence  of  the  king,  or  if  two  masters  of 
defence  plajdng  their  prizes  kill  one  another,  that  this  shall  be  no 
felony,  or  if  a  lunatic  Idll  a  man,  or  the  like;  because  felony  must  be 
done  animo  felonico;  yet,  in  trespass,  which  tends  only  to  give  dam- 
ages according  to  hurt  or  loss,  it  is  not  so;  and  therefore,  if  a  lunatic 
hurt  a  man,  he  shall  be  answerable  in  trespass,^  and,  therefore,  no  man 

*  Gates  V.  Miles,  3  Conn.  64,  70;  Mclntyre  v.  Sholty,  121  HI.  660;  Amick  v. 
O'Hara,  6  Blackf.  268,  259;  Cross  v.  Kent,  32  Md.  581:  Feld  v.  Borod6fski,  87 
Miss.  727;  Bullock  v.  Babcock,  3  Wend.  391 :  Krom  v.  Schoonmaker,  3  Barb.  647. 
(imprisonment);  Wwxl  v.  Conatser,  4  Baxt.  (Tenn.)  64;  Brennan  v.  Donaghey,  19 
N.  Zieal.  Gaz.  L.  R.  289,  affirming  s.  c.  2  New  Zeal.  Gaz.  L.  R.  410  Accord. 

The  rule  is  the  same  as  to  torts  in  general.  Behrens  v.  McKenzie,  23  la.  333, 
343;  Chesapeake  R.  Co.  v.  Francisco,  149  Ky.  307;  Morain  v.  Devlin,  132  Mass. 
87  (nuisance) -Gibson  t;.  Pollock,  179  Mo.  App.  188;  Jewell  v.  Colby,  66  N.  H.  399; 
Re  Heller,  3  Paige,  199;  Williams  v.  Hays,  143  N.  Y.  442  (compare  Williams  v. 
Hays,  157  N.  Y.  541);  Williams  v.  Cameron,  26  Barb.  172:  Lancaster  Bank  v. 
Moore,  78  Pa.  St.  407,  412;  Morse  v.  Crawford,  17  Vt.  499  (conversion). 

A  limatic  has  been  held  hable  under  a  statute  giving  an  action  to  the  widow  and 
children  of  one  killed  by  the  "  careless,  wanton,  or  maUcious  "  use  of  firearms. 
Young  V.  Young,  141  Ky.  76. 

In  Mclntyre  v.  Sholty,  supraj  Magruder,  J.,  said,  p.  664:  "  It  is  well  settled 
that,  though  a  lunatic  is  not  punishable  criminally,  he  is  liable  in  a  civil  action  for 
any  tort  he  may  commit.    However  justly  this  doctrine  may  have  been  originally 

29^ 


\ 


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30  BROWN  V.  KENDALL  [CHAP.  II. 

shall  be  excused  of  a  trespass  (for  this  is  the  nature  of  an  excuse,  and 
not  of  a  justification,  proiU  ei  bene  licuit),  except  it  may  be  judged 
utterly  without  his  fault;  as  if  a  man  by  force  take  my  hand  and  strike 
you,  or  if  here  the  defendant  had  said  that  the  plaintiff  ran  across  his 
piece  when  it  was  discharging,  or  had  set  forth  the  case  with  the  cir- 
cumstances so  as  it  had  appeared  to  the  coiuii  that  it  had  been  inevi- 
table, and  that  the  defendant  had  conmiitted  no  negligence  to  give 
occasion  to  the  hurt.^ 


BROWN  V.  KENDALL 

Supreme  Judicial  Court,  Massachusetts,  October  Term, 

1850. 
Reported  in  6  Cushing,  292. 

This  was  an  action  of  trespass  for  assault  and  battery,  originally 
conmienced  against  George  K.  Kendall,  the  defendant,  who  died 
pending  the  suit,  and  his  executrix  was  summoned  in. 

It  appeared  in  evidence,  on  the  trial,  which  was  before  Wells,  C.  J., 
in  the  Court  of  Common  Pleas,  that  two  dogs,  belonging  to  the  plain- 
subject  to  criticism  on  the  grounds  of  reason  and  principle,  it  is  now  too  firmly  sup- 
ported by  the  weight  of  authority  to  be  disturbed.  It  is  the  outcome  of  the  princi- 
ple, that,  in  trespass,  the  intent  is  not  conclusive.  Mr.  Sed^^ck,  in  his  work  on 
Damases  (margm,  p.  456),  says  that,  on  principle,  a  lunatic  should  not  be  held 
liable  for  his  tortious  acts.  Opposed  to  this  view,  however,  is  a  majority  of  the 
decisions  and  text  writers." 

"  So  long  as  the  primitive  notion  prevaUed  that  the  doer  of  harm  was  absolutely 
responsible  therefor,  the  insanity  or  the  doer  could  afford  no  defence,  either  to  a 
criminal  prosecution  or  a  civil  action.  7  Harv.  L.  Rev.  446.  When  this  notion  was 
so  far  modified  that  misadventure  or  accident  on  the  part  of  the  doer  became  a  de- 
fence, 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  acci- 
dental." Burdick,  Torts  (2d  ed.),  60.  See  also  Ames,  Law  and  Morals,  22  Harv. 
L.  Rev.  97,  99-100;  Homblower,  Insanity  and  the  Law  of  Negligence,  6  Col.  L. 
Rev.  278. 

"  827.  A  person  who  causes  damage  to  another  while  in  a  condition  of  imcon- 
sciousness  or  in  a  condition  of  morbid  disturbance  of  mental  activity  incompatible 
with  the  free  determination  of  the  will  is  not  responsible  for  the  damage.  .  .  ." 

"829.  A  person  who  ...  is  by  virtue  of  827  .  .  .  not  responsible  for  any 
damage  caused  by  him  shall  nevertneless  where  compensation  cannot  be  obtained 
from  a  third  party  charged  with  the  duty  of  supervision  make  compensation  for 
damage  in  so  far  as  according  to  the  circumstances  (e.  g.  according  to  the  relative 
positions  of  the  parties)  equity  requires  compensation  and  he  is  not  deprived  of  the 
means  which  he  needs  for  his  own  maintenance  suitable  to  his  station  in  life  and 
for  the  fulfilment  of  his  statutory  duties  to  furnish  maintenance  to  others."  — 
German  Civil  Code,  §§  827,  829. 

»  Underwood  v.  Hewson,  1  Stra.  596;  Welch  v.  Durand,  36  Conn.  182;  Atchi- 
son V,  Dullam,  16  111.  App.  42;  Hodges  v.  Weltberger,  6  Monr.  (Ky.)  337;  Louis- 
ville R.  Co.  V.  Sweeney,  167  Ky.  620;  Chataigne  v.  Bergeron,  10  La.  An.  699; 
Sullivan  v.  Murphy,  2  Miles  (Pa.)  298;  Castle  v.  Duryee,  2  Keyes,  169;  Taylor  v. 
Rainbow,  2  Hen.  &  Mun.  423  Accord. 

See  to  the  same  effect  Morgan  v.  Cox,  22  Mo.  373;  Dygert  v.  Bradley,  8  Wend. 
469:  Jennings  v.  Fundeburg,  4  McC.  161 ;  Tally  v.  Ayres,  3  Sneed,  677  (the  injury 
to  chattels);  Wetzel  v.  Satterwhite,  (Tex.  Civ.  App.)  125  S.  W.  93  (injury  to  prop- 
erty); Wright  V.  Clark,  50  Vt.  130.    Compare  Osbome  v.  Van  Dyke,  113  la.  567. 


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SECT.  I.]  BROWN  V.  KENDALL  31 

tiflf  and  the  defendant,  respectively,  were  fighting  in  the  presence  of 
their  masters;  that  the  defendant  took  a  stick  about  four  feet  long, 
and  commenced  beating  the  dogs  in  order  to  separate  them;  that  the 
plaintiff  was  looking  on,  at  the  distance  of  about  a  rod,  and  that  he 
advanced  a  step  or  two  towards  the  dogs.  In  their  struggle,  the  dogs 
approached  the  place  where  the  plaintiff  was  standing.  The  defend- 
ant retreated  backwards  from  before  the  dogs,  striking  them  as  he 
retreated;  and  as  he  approached  the  plaintiff,  with  his  back  towards 
him,  in  raising  his  stick  over  his  shoulder,  in  order  to  strike  the  dogs, 
he  accidentally  hit  the  plaintiff  in  the  eye,  inflicting  upon  him  a 
severe  injury. 

Whether  it  was  necessary  or  proper  for  the  defendant  to  interfere 
in  the  fight  between  the  dogs;  whether  the  interference,  if  called  for 
was  in  a  proper  manner,  and  what  degree  of  care  was  exercised  by  each 
party  on  the  occasion;  were  the  subject  of  controversy  between  the 
parties,  upon  all  the  evidence  in  the  case,  of  which  the  foregoing  is  an 
outline. 

The  defendant  requested  the  judge  to  instruct  the  j\iry,  that  "  if 
both  the  plaintiff  and  defendant  at  the  time  of  the  blow  were  using 
ordinary  care,  or  if  at  that  time  the  defendant  was  using  ordinary  care 
and  the  plaintiff  was  not,  or  if  at  that  time  both  plaintiff  and  defend- 
ant were  not  using  ordinary  care,  then  the  plaintiff  could  not  recover." 

The  defendant  further  requested  the  judge  to  instruct  the  jury, 
that,  "  imder  the  circumstances,  if  the  plaintiff  was  using  ordinary 
care  and  the  defendant  was  not,  the  plaintiff  could  not  recover,  and 
that  the  burden  of  proof  on  all  these  propositions  was  on  the  plaintiff." 

The  judge  declined  to  give  the  instructions,  as  above  requested,  but 
left  the  case  to  the  jury  imder  the  following  instructions:  "  If  the  de- 
fendant, in  beating  the  dogs,  was  doing  a  necessary  act,  or  one  which 
it  was  his  duty  under  the  circumstances  of  the  case  to  do,  and  was 
doing  it  in  a  proper  way;  then  he  was  not  responsible  in  this  action, 
provided  he  was  using  ordinary  care  at  the  time  of  the  blow.  If  it 
was  not  a  necessary  act;  if  he  was  not  in  duty  boimd  to  attempt  to 
part  the  dogs,  but  might  with  propriety  interfere  or  not  as  he  chose; 
the  defendant  was  responsible  for  the  consequences  of  the  blow,  unless 
it  appeared  that  he  was  in  the  exercise  of  extraordinary  care,  so  that 
the  accident  was  inevitable,  using  the  word  inevitable  not  in  a  strict 
but  a  popular  sense." 

"  If,  however,  the  plaintiff,  when  he  met  with  the  injury,  was  not 
in  the  exercise  of  ordinary  care,  he  cannot  recover,  and  this  rule  ap- 
plies, whether  the  interference  of  the  defendant  in  the  fight  of  the  dogs 
was  necessary  or  not.  If  the  jury  believe,  that  it  was  the  duty  of  the 
defendant  to  interfere,  then  the  burden  of  proving  negligence  on  the 
part  of  the  defendant,  and  ordinary  care  on  the  part  of  the  plaintiff, 
is  on  the  plaintiff.  If  the  jury  believe,  that  the  act  of  interference  in 
the  fight  was  imnecessary,  then  the  burden  of  proving  extraordinary 


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32  BROWN  V.  KENDALL  [CHAP.  II. 

care  on  the  part  of  the  defendant,  or  want  of  ordinary  care  on  the  part 
of  the  plaintiff,  is  on  defendant.'' 

The  jury  under  these  instructions  returned  a  verdict  for  the  plain- 
tiff; whereupon  the  defendant  alleged  exceptions. 

Shaw,  C.  J.  This  is  an  action  of  trespass,  vi  ei  armisj  brought  by 
George  Brown  against  Greorge  K.  Kendall,  for  an  assault  and  battery; 
and  the  original  defendant  having  died  pending  the  action,  his  execu- 
trix has  been  sununoned  in.  The  rule  of  the  common  law,  by  which 
this  action  would  abate  by  the  death  of  either  party,  is  reversed  in  this 
Commonwealth  by  statute,  which  provides  that  actions  of  trespass  for 
assault  and  battery  shall  survive.    Rev.  Sts.  c.  93,  §  7. 

The  facts  set  forth  in  the  bill  of  exceptions  preclude  the  supposition, 
that  the  blow,  inflicted  by  the  hand  of  the  defendant  upon  the  person 
of  the  plaintiff,  was  intentional.  The  whole  case  proceeds  on  the  as- 
sumption, that  the  damage  sustained  by  the  plaintiff,  from  the  stick 
held  by  the  defendant,  was  inadvertent  and  unintentional;  and  the 
case  involves  the  question  how  far,  and  imder  what  qualifications,  the 
party  by  whose  imconscious  act  the  damage  was  done  is  responsible 
for  it.  We  use  the  term  "  unintentional  "  rather  than  involuntary, 
because  in  some  of  the  cases,  it  is  stated,  that  the  act  of  holding  and 
using  a  weapon  or  instrument,  the  movement  of  which  is  the  imme- 
diate cause  of  hurt  to  another,  is  a  voluntary  act,  although  its  partic- 
ular effect  in  hitting  and  hurting  another  is  not  within  the  purpose  or 
intention  of  the  party  doing  the  act. 

It  appears  to  us,  that  some  of  the  confusion  in  the  cases  on  this  sub- 
ject has  grown  out  of  the  long-vexed  question,  imder  the  rule  of  the 
common  law,  whether  a  party's  remedy,  where  he  has  one,  should  be 
sought  in  an  action  of  the  case,  or  of  trespass.  This  is  very  distin- 
guishable from  the  question,  whether  in  a  given  case,  any  action  will 
lie.  The  result  of  these  cases  is,  that  if  the  damage  complained  of  is 
the  immediate  effect  of  the  act  of  the  defendant,  trespass  vi  et  armis 
lies;  if  consequential  only,  and  not  immediate,  case  is  the  proper 
remedy.  Leame  v.  Bray,  3  East,  593;  Huggett  v.  Montgomery,  2  B.  & 
P.  N.  R.  446,  Day's  Ed.,  and  notes. 

In  these  discussions,  it  is  frequently  stated  by  judges,  that  when  one 
receives  injury  from  the  direct  act  of  another,  trespass  will  lie.  But 
we  think  this  is  said  in  reference  to  the  question,  whether  trespass  and 
not  case  will  lie,  assuming  that  the  facts  are  such,  that  some  action 
will  lie.  These  dicta  are  no  authority,  we  think,  for  holding,  that 
damage  received  by  a  direct  act  of  force  from  another  will  be  sufficient 
to  maintain  an  action  of  trespass,  whether  the  act  was  lawful  or  unlaw- 
ful, and  neither  wilful,  intentional,  or  careless.  In  the  principal  case 
cited,  Leame  v.  Bray,  the  damage  arose  from  the  act  of  the  defendant, 
in  driving  on  the  wrong  side  of  the  road,  in  a  dark  night,  which  was 
clearly  negligent,  if  not  unlawful.  In  the  course  of  the  argument  of 
that  case  (p.  595),  Lawrence,  J.,  said:  "  There  certainly  are  cases  in 


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SECT.  I.]  BROWN  V.  KENDALL  33 

the  books,  where,  the  injury  bemg  direct  and  immediate,  trespass  has 
been  holden  to  lie,  though  the  injury  was  not  intentional."  The  term 
"  injury ''  implies  something  more  than  damage;  but,  independently 
of  that  consideration,  the  proposition  may  be  true,  because  though  the 
injury  was  unintentional,  the  act  may  have  been  unlawful  or  negligent, 
and  the  cases  cited  by  him  are  perfectly  consistent  with  that  supposi- 
tion. So  the  same  learned  judge  in  the  same  case  says  (p.  597),  "  No 
doubt  trespass  lies  against  one  who  drives  a  carriage  against  another, 
whether  done  wilfully  or  not."  But  he  immediately  adds,  "  Suppose 
one  who  is  driving  a  carriage  is  negligently  and  heedlessly  looking 
about  him,  without  attending  to  the  road  when  persons  are  passing, 
and  thereby  runs  over  a  child  and  kills  him,  is  it  not  manslaughter  ? 
and  if  so,  it  must  be  trespass;  for  every  manslaughter  includes  tres- 
pass; "  showing  what  he  understood  by  a  case  not  wilful. 

We  think,  as  the  result  of  all  the  authorities,  the  rule  is  correctly 
stated  by  Mr.  Greenleaf ,  that  the  plaintiflF  must  come  prepared  with 
evidence  to  show  either  that  the  intention  was  unlawful,  or  that  the 
defendant  was  in  fault;  for  if  the  injury  was  ima  voidable,  and  the  con- 
duct of  the  defendant  was  free  from  blame,  he,  will  not  be  liable.  2 
Greenl.  Ev.  §§  85-92.  Wakeman  v.  Robinson,  1  Bing.  213.  If,  in  the 
prosecution  of  a  lawful  act,  a  casualty  purely  accidental  arises,  no 
action  can  be  supported  for  an  injury  arising  therefrom.  Davis  v. 
Saunders,  2  Chit.  R.  639;  Com.  Dig.  Battery,  A.  (Day's  Ed.)  and 
notes;  Vincent  v.  Stinehour,  7  Vt.  62.  In  applying  these  rules  to  the 
present  case,  we  can  perceive  no  reason  why  the  instructions  asked  for 
by  the  defendant  ought  not  to  have  been  given;  to  this  effect,  that  if 
both  plaintiff  and  defendant  at  the  time  of  the  blow  were  using  ordin- 
ary care,  or  if  at  that  time  the  defendant  was  using  ordinary  care,  and 
the  plaintiff  was  not,  or  if  at  that  time,  both  the  plaintiff  and  defend- 
ant were  not  using  ordinary  care,  then  the  plaintiiSF  could  not  recover. 

In  using  this  term,  ordinary  care,  it  may  be  proper  to  state,  that 
what  constitutes  ordinary  care  will  vary  with  the  circimistances  of 
cases.  In  general,  it  means  that  kind  and  degree  of  care,  which  pru- 
dent and  cautious  men  would  use,  such  as  is  required  by  the  exigency 
of  the  case,  and  such  as  is  necessary  to  guard  against  probable  danger. 
A  man,  who  should  have  occasion  to  discharge  a  gun,  on  an  open  and 
extensive  marsh,  or  in  a  forest,  would  be  required  to  use  less  circmn- 
spection  and  care,  than  if  he  were  to  do  the  same  thing  in  an  inhabited 
town,  village,  or  city.  To  make  an  accident,  or  casualty,  or,  as  the  law 
sometimes  states  it,  inevitable  accident,  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 
which  he  was  placed. 

We  are  not  aware  of  any  circumstances  in  this  case,  requiring  a  dis- 
tinction between  acts  which  it  was  lawful  and  proper  to  do,  and  acts 
of  legal  duty.    There  are  cases,  imdoubtedly,  in  which  officers  are 


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34  BROWN  V.  KENDALL  [CHAP.  H. 

bound  to  act  under  process,  for  the  legality  of  which  they  are  not  re- 
sponsible, and  perhaps  some  others  in  which  this  distinction  would  be 
important.  We  can  have  no  doubt  that  the  act  of  the  defendant  in 
attempting  to  part  the  fighting  dogs,  one  of  which  was  his  own,  and 
for  the  injurious  acts  of  which  he  might  be  responsible,  was  a  lawful 
and  proper  act,  which  he  might  do  by  proper  and  safe  means.  If, 
then,  in  doing  this  act,  using  due  care  and  all  proper  precautions  neces- 
sary to  the  exigency  of  the  case,  to  avoid  hurt  to  others,  in  raising  his 
stick  for  that  purpose,  he  accidentally  hit  the  plaintiff  in  his  eye,  and 
woimded  him,  thk  was  the  result  of  pure  accident,  or  was  involuntary 
and  imavoidable,  and  therefore  the  action  would  not  lie.  Oi  if  the 
defendant  was  chargeable  with  some  n^ligence,  and  if  the  plaintiflF 
was  also  chargeable  with  n^ligence,  we  think  the  plaintiff  cannot 
recover  without  showing  that  the  damage  was  caused  wholly  by  the 
act  of  the  defendant,  and  that  the  plaintiff's  own  negligence  did  not 
contribute  as  an  efficient  cause  to  produce  it. 

The  court  instructed  the  j\iry,  that  if  it  was  not  a  necessary  act,  and 
the  defendant  was  not  in  duty  bound  to  part  the  dogs,  but  might  with 
propriety  interfere  or  not  as  he  chose,  the  defendant  was  responsible 
for  the  consequences  of  the  blow,  imless  it  appeared  that  he  was  in  the 
exercise  of  extraordinary  care,  so  that  the  accident  was  inevitable, 
using  the  word  not  in  a  strict  but  a  popular  sense.  This  is  to  be  taken 
in  connection  with  the  charge  afterwards  given,  that  if  the  jury  be- 
lieved, that  the  act  of  interference  in  the  fight  was  imnecessary  (that 
is,  as  before  explained,  not  a  duty  incmnbent  on  the  defendant),  then 
the  burden  of  proving  extraordinary  care  on  the  part  of  the  defendant, 
or  want  of  ordinary  care  on  the  part  of  plaintiff,  was  on  the  defendant. 

The  court  are  of  opinion  that  these  directions  were  not  conformable 
to  law.  If  the  act  of  hitting  the  plaintiff  was  unintentional,  on  the 
part  of  the  defendant,  and  done  in  the  doing  of  a  lawful  act,  then  the 
defendant  was  not  liable,  unless  it  was  done  in  the  want  of  exercise  of 
due  care,  adapted  to  the  exigency  of  the  case,  and  therefore  such  want 
of  due  care  became  part  of  the  plaintiff's  case,  and  the  burden  of  proof 
was  on  the  plaintiff  to  establish  it.  2  Greenl.  Ev.  §  86;  Powers  v. 
Russell,  13  Pick.  69,  76;  Tourtellot  v.  Rosebrook,  11  Met.  460. 

Perhaps  the  learned  judge,  by  the  use  of  the  term  extraordinary 
care,  in  the  above  charge,  explained  as  it  is  by  the  context,  may  have 
intended  nothing  more  than  that  increased  degree  of  care  and  dili- 
gence, which  the  exigency  of  particular  circumstances  might  require, 
and  which  men  of  ordinary  care  and  prudence  would  use  imder  like 
circumstances,  to  guard  against  danger.  If  such  was  the  meaning  of 
this  part  of  the  charge,  then  it  does  not  differ  from  our  views,  as  above 
explained.  But  we  are  of  opinion,  that  the  other  part  of  the  charge, 
that  the  burden  of  proof  was  on  the  defendant,  was  incorrect.  Those 
facts  which  are  essential  to  enable  the  plaintiff  to  recover,  he  takes  the 
burden  of  proving.    The  evidence  may  be  offered  by  the  plaintiff  or  by 


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SECT.  I.]  STANLEY  V.  POWELL  35 

the  defendant;  the  question  of  due  care,  or  want  of  care,  may  be  essen- 
tially connected  with  the  main  facts,  and  arise  from  the  same  proof; 
but  the  effect  of  the  rule,  as  to  the  burden  of  proof,  is  this,  that  when 
the  proof  is  all  in,  and  before  the  jury,  from  whatever  side  it  comes, 
and  whether  directly  proved,  or  inferred  from  circumstances,  if  it 
appears  that  the  defendant  was  doing  a  lawful  act,  and  unintentionally 
hit  and  hurt  the  plaintiff,  then  imless  it  also  appears  to  the  satisfaction 
of  the  jury,  that  the  defendant  is  chargeable  with  some  fault,  negli- 
gence, carelessness,  or  want  of  prudence,  the  plaintiff  fails  to  sustain 
the  burden  of  proof,  and  is  not  entitled  to  recover. 

New  trial  ordered  ^ 


STANLEY  V.  POWELL 

In  the  Queen's  Bench  Division,  NovEifSER  3,  1890. 

Reported  in  [1891]  1  Queen's  Bench,  86. 

Denman,  J.  This  case  was  tried  before  me  and  a  special  jury  at  the 
last  Maidstone  Summer  Assizes.* 

In  the  statement  of  claim  the  plaintiff  alleged  that  the  defendant 
had  negligently  and  wrongfully  and  unskilfuUy  fired  his  gun  and 
wounded  the  plaintiff  in  his  eye,  and  that  the  plaintiff,  in  consequence, 
had  lost  his  sight  and  suffered  other  damage.  The  defendant  denied 
the  negligence  alleged.  After  the  evidence  on  both  sides,  which  was 
conflicting,  had  been  heard,  I  left  the  three  following  questions  to  the 
jiuy:  1.  Was  the  plaintiff  injured  by  a  shot  from  defendant's  gun  ? 
2.  Was  the  defendant  guilty  of  negligence  in  firing  the  charge  to  which 
that  shot  belonged  as  he  did  ?   3.  Damages. 

The  undisputed  facts  were,  that  on  Nov.  29,  1888,  the  defendant 
and  several  others  were  pheasant  shooting  in  a  party,  some  being 
inside  and  some  outside  of  a  wood  which  the  beaters  were  beating. 
The  right  of  shooting  was  in  one  Greenwood,  who  was  of  the  party. 
The  plaintiff  was  employed  by  Greenwood  to  carry  cartridges  and  the 
game  which  might  be  shot.  Several  beaters  were  driving  the  game 
along  a  plantation  of  saplings  towards  an  open  drive.  The  plaintiff 
stxKxl  just  outside  a  gate  which  led  into  a  field  outside  the  plantation, 
at  the  end  of  the  drive.  The  defendant  was  walking  along  in  that  field 
a  few  yards  from  the  hedge  which  bounded  the  plantation.  As  he  was 
walking  along  a  pheasant  rose  inside  the  plantation;  the  defendant 
fired  one  barrel  at  this  bird,  and,  according  to  the  evidence  for  the 
defendant,  struck  it  with  his  first  shot.  There  was  a  considerable  con- 
flict of  evidence  as  to  details;  but  the  jury  must,  I  think,  be  taken  to 

>  Nitro-Glycerine  Caae,  15  Wall.  524,  638  (semble);  Morris  v.  Piatt,  32  Conn. 
75,  84-90  (defendant  in  defending  himself  lawfully  against  A.  fired  a  pistol  at  A., 
but  accidentally  hit  the  plaintiff)  I  Paxton  v.  Boyer,  67  111.  132  (facts  similar  to 
those  in  Morris  v.  Piatt,  supra);  Crabtree  v.  Dawson,  119  Ky.  148  Accord. 

*  Only  the  opinion  of  the  court  is  given. 


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36  STANLEY  V.  POWELL  [CHAP.  II. 

have  adopted  the  version  of  the  facts  sworn  to  by  the  defendant's 
witnesses.  They  swore  that  the  bird,  when  struck  by  the  first  shot, 
began  to  lower  and  turn  back  towards  the  beaters,  whereupon  the 
defendant  fired  his  second  barrel  and  killed  the  bird,  but  that  a  shot, 
glancing  from  the  bough  of  an  oak  which  was  in  or  close  to  the  hedge, 
and,  striking  the  plaintiflF,  must  have  caused  the  injury  complained  of. 
The  oak  in  question,  according  to  the  defendant's  evidence,  was  partly 
between  the  defendant  and  the  bird  when  the  second  barrel  was  fired, 
but  it  was  not  in  a  line  with  the  plaintiff,  but,  on  the  contrary,  so 
much  out  of  that  line,  that  the  shot  must  have  been  diverted  to  a  con- 
siderable extent  from  the  direction  in  which  the  gun  must  have  been 
pointed  in  order  to  hit  the  plaintiff.  The  distance  between  the  plaintiff 
and  the  defendant,  in  a  direct  line,  when  the  second  barrel  was  fired, 
was  about  thirty  yards.  The  case  for  the  plaintiff  was  entirely  dif- 
ferent; but  I  think  it  must  be  held  that  the  jury  took  the  defendant's 
account  of  the  matter,  for  they  f oimd  the  second  question  left  to  them 
in  the  negative.  Before  summing  up  the  case  to  the  jury,  I  called  the 
attention  of  the  parties  to  the  doctrine  which  seemed  to  have  been  laid 
down  in  some  old  cases  —  that,  even  in  the  absence  of  negligence,  an 
action  of  trespass  might  lie;  and  it  was  agreed  that  I  should  leave  the 
question  of  negligence  to  the  jury,  but  that,  if  necessary,  the  pleadings 
were  deemed  to  have  been  amended  so  as  to  raise  any  case  or  defence 
open  upon  the  facts  with  liberty  to  the  court  to  draw  inferences  of 
fact,  and  that  the  damages  should  be  assessed  contingently.  The 
jury  assessed  them  at  £100.  I  left  either  party  to  move  the  court 
for  judgment;  but  it  was  afterwards  agreed  that  the  case  should  be 
argued  before  mjrself  on  further  consideration,  and  that  I  should  give 
judgment,  notwithstanding  that  I  had  left  the  parties  to  move  the 
court,  as  though  I  had  originally  reserved  it  for  further  consideration 
before  myself.  « 

Having  heard  the  arguments,  I  am  of  opinion  that,  by  no  amend- 
ment that  could  be  made  consistently  with  the  finding  of  the  jury 
could  I  properly  give  judgment  for  the  plaintiff.  It  was  contended 
on  his  behalf  that  this  was  a  case  in  which  an  action  of  trespass  would 
have  lain  before  the  Judicature  Acts;  and  this  contention  was  mainly 
foimded  on  certain  dicta  which,  until  considered  with  reference  to 
those  cases  in  which  they  are  uttered,  seem  to  support  that  conten- 
tion; but  no  decision  was  quoted,  nor  do  I  think  that  any  can  be 
foimd  which  goes  so  far  as  to  hold,  that  if  A.  is  injured  by  a  shot  from 
a  gun  fired  at  a  bird  by  B.,  an  action  of  trespass  will  necessarily  he, 
even  though  B.  is  proved  to  have  fired  the  gun  without  negligence  and 
without  intending  to  injure  the  plaintiff  or  to  shoot  in  his  direction. 

The  jury  having  found  that  there  was  no  negligence  on  the  part  of 
the  defendant,  the  most  favorable  way  in  which  it  is  now  possible  to 
put  the  case  for  the  plaintiff  is  to  consider  the  action  as  brought  for  a 
trespass,  and  io  consider  that  the  defendant  has  put  upon  the  record 


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SECT.  I.]  STANLEY  V.  POWELL  37 

a  defence  denying  negligence,  and  specifically  alleging  the  facts,  sworn 
to  by  his  witnesses,  which  the  jury  must  be  considered  to  have  found 
proved,  and  then,  to  consider  whether  those  facts,  coupled  .with  the 
absence  of  negligence  established  by  the  jury,  amount  to  an  excuse 
in  law. 

The  earliest  case  relied  upon  by  the  plaintiff  was  one  in  the  year- 
book 21  Hen.  7,  28  A.,  which  is  referred  to  by  Grose,  J.,  in  the  course 
of  the  argument  in  Leame  v.  Bray,  3  East,  593,  to  be  mentioned  pres- 
ently, in  these  words:  "  There  is  a  case  put  in  the  year-book,  21  Hen. 
7,  28  A.,  that  where  one  shot  an  arrow  at  a  mark  which  glanced  from 
it  and  struck  another,  it  was  holden  to  be  trespass."  Returning  to 
the  case  in  the  year-book,  it  appears  that  the  passage  in  question  was 
a  mere  didum  of  Rede,  who  (see  5  Foss'  Lives  of  the  Judges,  p.  230) 
was  at  the  time  (1506)  either  a  judge  of  the  King's  Bench  or  C.  J.  of 
the  Common  Pleas,  which  he  became  in  October  in  that  year,  in  a 
case  of  a  very  different  kind  from  that  in  question,  and  it  only  amounts 
to  a  statement  that  an  action  of  trespass  may  lie  even  where  the  act 
done  by  the  defendant  is  unintentional.  The  words  relied  on  are, 
"  Mes  ou  on  tire  a  les  huts  et  blesse  un  home,  coment  que  est  incontre  aa 
volonte,  il  sera  dit  un  trespassor  incontre  son  entent"  But  in  that  very 
passage  Rede  makes  observations  which  show  that  he  has  in  his  mind 
cases  in  which  that  which  would  be  prima  facie  a  trespass  may  be 
excused.  The  next  case  in  order  of  date  relied  upon  for  the  plaintiff 
was  Weaver  v.  Ward,  decided  in  1607.  There  is  no  doubt  that  that 
case  contains  dicta  which  per  se  would  be  in  favor  of  the  plaintiff,  but 
it  also  contains  the  following  summing  up  of  the  law  applicable  to 
cases  of  imintentional  injury  by  acts  which  are  prima  facte  trespasses: 
"  Therefore,  no  man  shall  be  excused  of  a  trespass  .  .  .  except  it  may 
be  judged  utterly  without  his  fault,''  showing  clearly  that  there  may 
be  such  cases.  That  case,  after  all,  only  decided  that  where  the  plain- 
tiff and  defendant  were  skirmishing  as  soldiers  of  the  train-band,  and 
the  one,  "  castuUiterj  ei  per  infortunium,  et  contra  voluntatem  suam  " 
(which  must  be  translated  "  accidentally  and  involimtarily  ")  shot 
the  other,  an  action  of  trespass  would  lie,  unless  he  could  show  that 
such  involuntary  and  accidental  shooting  was  done  under  such  cir- 
cimistances  as  utterly  to  negative  negligence.  Such  cases  may  easily 
be  supposed,  in  which  there  could  be  no  two  opinions  about  the  mat- 
ter; but  other  cases  may,  as  the  present  case  did,  involve  considerable 
conflicts  of  evidence  and  opinion  which  until  recently  a  jury  only  could 
dispose  of.  The  case  of  Gibbons  v.  Pepper,  4  Mod.  405,  decided  in 
1695,  merely  decided  that  a  plea  merely  showing  that  an  accident 
caused  by  a  runaway  horse  was  inevitable,  was  a  bad  plea  in  an  action 
of  trespass,  because,  if  inevitable,  that  was  a  defence  under  the  general 
issue.  It  was  a  mere  decision  on  the  pleading,  and  laid  down  nothing 
as  regards  the  point  raised  in  the  present  case.  The  concluding  words 
of  the  judgment,  which  show  clearly  the  ratio  decidendi  of  that  case, 


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38  STANLEY  V.  POWELL  [CHAP.  II. 

are  these:  "  He  should  have  pleaded  the  general  issue,  for  if  the  horse 
ran  away  against  his  will  he  would  have  been  found  not  guiUy,  because 
in  such  a  case  it  cannot  be  said  with  any  color  of  reason  to  be  a  battery 
in  the  rider."  The  more  modem  cases  of  Wakeman  v.  Robinson  and 
Hall  V.  Feamley,  lay  down  the  same  rule  as  regards  the  pleading 
point,  though  the  former  case  may  also  be  relied  upon  as  an  authority 
by  way  of  dictum  in  favor  of  the  plaintiff,  and  the  latter  may  be  fairly 
relied  upon  by  the  defendant;  for  Wightman,  J.,  in  his  judgment 
explains  Wakeman  v.  Robinson  thus:  "  The  act  of  the  defendant  " 
(viz.,  driving  the  cart  at  the  very  edge  of  a  narrow  pavement  on  which 
the  plaintiff  was  walking,  so  as  to  knock  the  plaintiff  down)  "  was 
prima  fade  imjustifiable,  and  required  an  excuse  to  be  shown.  When 
the  motion  in  this  case  was  first  made,  I  had  in  my  recoUection  the 
case  of  Wakeman  v.  Robinson.  It  was  there  agreed  that  an  involunr 
tary  act  might  be  a  defence  on  the  general  issue.  The  decision  indeed 
turned  on  a  different  point;  but  the  general  proposition  is  laid  down. 
I  think  the  amission  to  plead  the  defence  here  deprived  the  defendant 
of  the  benefit  of  it,  and  entitled  the  plaintiff  to  recover." 

But  in  truth  neither  case  decides  whether,  where  an  act  such  as  dis- 
charging a  gun  is  voluntary,  but  the  result  injurious  without  negU- 
gence,  an  action  of  trespass  can  nevertheless  be  supported  as  against 
a  plea  pleaded  and  proved,  and  which  the  jury  find  established,  to  the 
effect  that  there  was  no  negligence  on  the  paji;  of  the  defendant. 

The  case  of  Underwood  v.  Hewson,  1  Str.  696,  decided  in  1724,  was 
relied  on  for  the  plaintiff.  The  report  is  very  short.  "  The  defendant 
was  uncocking  a  gun,  and  the  plaintiff  standing  to  see  it,  it  went  off 
and  wounded  him;  and  at  the  trial  it  was  held  that  the  plaintiff  might 
maintain  trespass  —  Strange  pro  defenderUe.'*  The  marginal  note  in 
Nolan's  edition  of  1795,  not  necessarily  Strange's  own  composition, 
is  this:  "  Trespass  lies  for  an  accidental  hurt;  "  and  in  that  edition 
there  is  a  reference  to  Buller's  N.  P.,  p.  16.  On  referring  to  Buller, 
p.  16,  where  he  is  dealing  with  Weaver  v.  Ward,  I  find  he  writes  as 
follows:  "  So  (it  is  no  battery)  if  one  soldier  hurt  another  in  exercise; 
but  if  he  plead  it  he  must  set  forth  the  circumstances,  so  as  to  make  it 
appear  to  the  court  that  it  was  inevitable,  and  that  he  committed  no 
negligence  to  give  occasion  to  the  hurt,  for  it  is  not  not  enough  to  say 
that  he  did  it  casualiterj  et  per  infortunium,  et  contra  voluntatem  suam; 
for  no  man  shall  be  excused  of  a  trespass,  imless  it  be  justified  entirely 
without  his  default:  Weaver  v.  Ward;  and,  therefore,  it  has  been 
holden  that  an  action  lay  where  the  plaintiff  standing  by  to  see  the 
defendant  uncock  his  gun  was  accidentally  wounded:  Underwood  v. 
Hewson."  On  referring  back  to  Weaver  v.  Ward,  I  can  find  nothing 
in  the  report  to  show  that  the  court  held,  that  in  order  to  constitute  a 
defence  in  the  case  of  a  trespass  it  is  necessary  to  show  that  the  act 
was  inevitable.  If  inevitable^  it  would  seem  that  there  was  a  defence 
under  the  general  issue;  but  a  distinction  is  drawn  between  an  act 


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SECT.  I.]  STANLEY  V.  POWELL  39 

which  is  inevitable  and  an  act  which  is  excusable,  and  what  Weaver  v. 
Ward  really  lays  down  is  that  "  no  man  shall  be  excused  of  a  trespass 
except  it  may  be  judged  utterly  without  his  fault." 

Day  V.  Edwards,  D.  4  E.  5  T.  R.  648  (1794),  merely  decides  that 
where  a  man  negligently  drives  a  cart  against  the  plaintiff's  carriage, 
the  injury  being  committed  by  the  immeduUe  act  complained  of,  the 
remedy  must  be  trespass,  and  not  case. 

But  the  case  upon  which  most  reliance  was  placed  by  the  plaintiff's 
counsel  was  Leame  v.  Bray,  3  East,  593.  That  was  an  action  of  tres- 
pass in  which  the  plaintiff  complained  that  the  defendant  with  force 
and  arms  drove  and  struck  a  chaise  which  he  was  driving  on  the  high- 
way against  the  plaintiff's  curricle,  which  the  plaintiff's  servant  was 
driving,  by  means  whereof  the  servant  was  thrown  out,  and  the  horses 
ran  away,  and  the  plaintiff,  who  jumped  out  to  save  his  life,  was  in- 
jured. The  facts  stated  in  the  report  include  a  statement  that  "  the 
accident  happened  in  a  dark  night,  owing  to  the  defendant  driving  his 
carriage  on  the  wrong  side  of  the  road,  and  the  parties  not  being  able 
to  see  each  other;  and  that  if  the  defendant  had  kept  his  right  side 
there  was  ample  room  for  the  carriages  to  have  passed  without  injmy." 
The  report  goes  on  to  state:  "  But  it  did  not  appear  that  blame  was 
imputable  to  the  defendant  in  any  other  respect  as  to  the  manner  of  his 
driving.  It  was  therefore  objected  for  the  defendant,  that  the  injury 
having  happened  from  negligence  and  not  wilfully,  the  proper  remedy 
was  by  an  action  on  the  case,  and  not  of  trespass  vi  et  armis;  and  the 
plaintiff  was  thereupon  nonsuited."  On  the  argument  of  the  rule  to 
set  aside  the  verdict  the  whole  discussion  turned  upon  the  question 
whether  the  injury  was,  as  put  by  Lawrence,  J.,  at  p.  596  of  the  report, 
immediate  from  the  defendant's  act,  or  consequential  only  from  it,  and 
m  the  result  the  nonsuit  was  set  aside.  But  it  clearly  appears  from  the 
report  that  there  was  evidence  upon  which  the  jury  might  have  found 
negligence,  and  indeed  the  defendant's  counsel  assumed  it  in  the  very 
objection  which  prevailed  with  Lord  EUenborough  when  he  nonsuited 
the  plaintiff.  There  is  nothing  in  any  of  the  judgments  to  show  that 
if  in  that  case  a  plea  had  been  pleaded  denying  any  negligence,  and  the 
jury  had  found  that  the  defendant  was  not  guilty  of  any  negligence, 
but  (for  instance)  that  the  accident  happened  wholly  through  the 
darkness  of  the  night  making  it  impossible  to  distinguish  one  side  of 
the  road  from  the  other  and  without  negligence  on  either  side,  the 
court  would  have  held  that  the  defendant  would  have  been  liable 
either  in  trespass  or  in  case. 

All  the  cases  to  which  I  have  referred  were  before  the  Court  of 
Exchequer  in  1875,  in  the  case  of  Holmes  v,  Mather,  and  Bramwell, 
B.,  in  giving  judgment  in  that  case,  dealt  with  them  thus:  "  As  to  the 
cases  cited,  most  of  them  are  really  decisions  on  the  form  of  action, 
whether  case  or  trespass.  The  result  of  them  is  this,  and  it  is  intel- 
ligible enough:  if  the  act  that  does  an  injury  is  an  act  of  direct  force 


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40  STANLEY  V.  POWELL  [CHAP.  H. 

vi  et  armis,  trespass  is  the  proper  remedy  (if  there  is  any  remedy), 
where  the  act  is  wrongful  either  as  being  wilful  or  as  being  the  result 
of  negligence.  Where  the  act  is  not  wrongful  for  either  of  these  rea- 
sons, no  action  is  maintainable,  though  trespass  would  be  the  proper 
form  of  action  if  it  were  wrongful.  That  is  the  effect  of  the  decisions." 
This  view  of  the  older  authorities  is  in  accordance  with  a  passage 
cited  by  Mr.  Dickens  from  Bacon's  Abridgment,  Trespass,  I.,  p.  706, 
with  a  marginal  reference  to  Weaver  v.  Ward.  In  Bacon  the  word 
"  inevitable  "  does  not  find  a  place.  "  If  the  circiunstance  which  is 
specially  pleaded  in  an  action  of  trespass  do  not  make  the  act  com- 
plained of  lawful "  (by  which  I  imderstand  justifiable  even  if  pur- 
posely done  to  the  extent  of  purposely  inflicting  the  injury,  as,  for 
instance,  in  a  case  of  self-defence)  "  and  only  make  it  excusable,  it 
is  proper  to  plead  this  circimistance  in  excuse;  and  it  is  in  this  case 
necessary  for  the  defendant  to  show  not  only  that  the  act  complained 
of  was  accidental  "  (by  which  I  understand,  "  that  the  injury  was  im- 
intentional "),  "  but  likewise  that  it  was  not  owing  to  neglect  or  want 
of  due  caution."  In  the  present  case  the  plaintiff  sued  in  respect  of 
an  injury  owing  to  the  defendant's  negligence,  —  there  was  no  pre- 
tence for  saying  that  it  was  intentional  so  far  as  any  injury  to  the 
plaintiff  was  concerned,  —  and  the  jury  negatived  such  negligence. 
It  was  argued  that  nevertheless,  inasmuch  as  the  plaintiff  was  injured 
by  a  shot  from  the  defendant's  gun,  that  was  an  injury  owing  to  ah 
act  of  force  committed  by  the  defendant,  and  therefore  an  action 
would  lie.  I  am  of  opinion  that  this  is  not  so,  and  that  against  any 
statement  of  claim  which  the  plaintiff  could  suggest  the  defendant 
must  succeed  if  he  were  to  plead  the  facts  sworn  to  by  the  witnesses 
for  the  defendant  in  this  case,  and  the  jury  believing  those  facts,  as 
they  must  now  be  taken  by  me  to  have  done,  foimd  the  verdict  which 
they  have  foimd  as  regards  negligence.  In  other  words,  I  am  of 
opinion  that  if  the  case  is  regarded  as  an  action  on  the  case  for  an 
injury  by  negligence  the  plaintiff  has  failed  to  establish  that  which  is 
the  very  gist  of  such  an  action;  if,  on  the  other  hand,  it  is  turned  into 
an  action  for  trespass,  and  the  defendant  is  (as  he  must  be)  supposed 
to  have  pleaded  a  plea  denying  negligence  and  establishing  that  the 
injury  was  accidental  in  the  sense  above  explained,  the  verdict  of  the 
jury  is  equally  fatal  to  the  action.  I  am,  therefore,  of  opinion  that  I 
am  boimd  to  give  judgment  for  the  defendant.  As  to  costs,  they  must 
follow,  imless  the  defendant  foregoes  his  right. 

Judgment  for  the  defendant,^ 

1  Alderson  v.  Waistell.  1  Car.  &  K.  358;  The  Virgo,  25  W.  R.  397;  Nitro- 
Glycerine  Case,  15  Wall.  524  (semhle);  Strouse  v.  Whittlesey,  41  Conn.  559; 
Sutton  V.  Bonnett,  114  Ind.  243;  Holland  v.  Bartch,  120  Ind.  46  (see  also  Bennett 
V.  Ford,  47  Ind.  264);  Harvey  v.  Dunlop,  Hill  &  D.  193;  Center  v.  Finney,  17 
Barb.  94,  Seld.  Notes,  80  Accord. 

But  one  who  by  blasting  throws  rocks  upon  the  plaintiff's  land  is  liable  in  tres- 
pass quare  dausum  fregitj  irrespective  of  negligence.    Central  Co.  v.  Vandenheuk, 


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SECT.  I.J    SULLIVAN  V.   OLD  COLONY  STREET  RAILWAY      41 

SULLIVAN  V.  OLD  COLONY  STREET  RAILWAY 

Supreme  Judicial  Court,  Massachusetts,  November  30,  1908. 

Reported  in  200  Massachusetia  ReportSj  303. 

Tort.  The  first  count  in  the  declaration  alleged  that,  while  the 
pkdntiflF  was  a  passenger  on  an  electric  car  of  the  defendant,  the 
car  was  derailed  at  Tiverton,  owing  to  the  (defendant's  negligence, 
"  whereby  the  plaintiff  was  jolted  and  in  many  ways  injured  externally 
and  internally." 

At  the  trial,  plaintiflF  testified  substantially  to  the  same  effect  as  the 
allegations  in  the  declaration.  As  to  the  derailment,  he  testified  that 
it  was  violent  and  that  he  was  much  thrown  about.  The  evidence  for 
the  defendant  tended  to  show  that  there  was  practically  no  jar  when 
the  car  left  the  rails  at  Tiverton. 

At  the  close  of  the  evidence  plaintiff  requested,  among  others,  the 
following  ruling:  — 

"  1.  Upon  all  the  evidence  the  plaintiff  is  entitled  to  recover  on  the 
first  count.'' 

The  judge  refused  to  so  rule. 

The  judge  instructed  the  jury,  in  part,  as  follows:  — 

"  The  only  matters,  then,  of  damages  for  you  to  consider  are  these: 
First,  what  was  the  effect  upon  the  plaintiff  of  the  jolts  when  the  car 
was  derailed  ?    To  what  extent  did  they  injure  the  plaintiff  ?  " 

Plaintiff  excepted  to  the  charge.    Verdict  for  defendant.^ 

Sheldon,  J.  No  question  was  made  at  the  trial  but  that  the  de- 
fendant was  liable  for  any  injury  done  to  the  plaintiff  by  reason  of 
its  car  having  left  the  track.  But  if  no  injury  was  caused  by  this  to 
the  plaintiff,  if  he  suffered  no  damage  whatever  from  the  defendant's 
negligence,  then  he  would  not  be  entitled  to  recover.  Although  there 
has  been  negligence  in  the  performance  of  a  legal  duty,  yet  it  is  only 
those  who  have  suffered  damage  therefrom  that  may  maintain  an 
action  therefor.  Heaven  v.  Pender,  11  Q.  B.  D.  503,  507;  Farrell  v. 
Waterbury  Horse  Railroad,  60  Conn.  239,  246;  Sahnon  r.  Delaware, 
Lackawanna  &  Western  Railroad,  19  Vroom,  5,  11;  2  Cooley  on 
Torts  (3d  ed.),  791;  Wharton  on  Negligence  (2d  ed.),  sect.  3.  In 
cases  of  negligence,  there  is  no  such  invasion  of  rights  as  to  entitle 
plaintiff  to  recover  at  least  nominal  damages,  as  in  Hooten  v,  Barnard, 
137  Mass.  36,  and  McAneany  v.  Jewett,  10  Allen,  151.*   Accordingly, 

147  Ala.  546;  Besaemer  Co.  v.  Doak,  152  Ala.  166;  Sloes  Co.  v.  Salser,  158  Ala. 
511;  Birmingham  Co.  v.  Grover,  159  Ala.  276;  Hay  v.  Cohoes  Co.,  2  N.  Y.  159; 
Tremain  v.  Cohoes  Co.,  2  N.  Y.  163:  St.  Peter  v.  Denison,  58  N.  Y.  416;  Sullivan 
V.  Dunham.  161  N.  Y.  290;  Holland  House  v.  Baird,  169  N.  Y.  136, 140.  And  the 
same  rule  nas  been  applied  to  trespass  to  the  person  bv  blasting.  Sullivan  v. 
Dunham,  161  N.  Y.  290;  Turner  v.  Degnon  Co.,  99  App.'Div.  135. 

'  Only  so  much  of  the  report  is  given  as  relates  to  the  first  count. 

«  See  The  Mediana,  [1900]  A.  C.  113, 116-118;  Columbus  Co.  v.  Clowes,  [1903] 
1  K.  B.  244. 


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42  HART  V.  ALLEN  [CHAP.  II. 

the  first  and  second  of  the  plaintiff's  requests  for  rulings  could  not  have 
been  given,  and  the  rulings  made  were  all  that  the  plaintiff  was 
entitled  to.  Exceptions  overruled.^ 


HART  V.  ALLEN 

Supreme  Court,  Pennsylvania,  October  Term,  1833. 
Reported  in  2  WaUa,  114. 

Action  on  the  case  against  owners  of  a  vessel.*  Plaintiff  put  in 
evidence  a  bill  of  lading  of  chests  of  tea  shipped  on  board  defendant's 
vessel;  "  to  be  delivered  in  good  order,  unavoidable  accidents  and  the 
dangers  of  the  river  excepted.  .  .  ."  Plaintiff  also  proved  that  the 
teas  were  delivered  by  defendants  in  a  damaged  state,  owing  to  their 
having  been  wet.  Defendants  gave  evidence  that  the  boat,  when  on 
her  passage  up  the  river,  was  driven  by  a  sudden  squall  of  wind  and 
snow  sidewise,  whereby  the  teas  were  wet  and  damaged;  that  she  was 
well  fitted  for  the  voyage;  that  every  exertion  was  made  to  save  her; 
and  that  Samuel  Johnston,  the  captain,  was  a  man  of  experience.  To 
rebut  this  the  plaintiff  gave  evidence  that  Samuel  Johnston  was  not 
an  experienced  boatman  or  pilot. 

Judgment  below  for  plaintiff.  The  original  defendants  brought 
error.    One  of  the  errors  assigned  was  as  foUows:  — 

The  court  below  erred  in  charging  the  jury,  that  although  the  acci- 
dent in  this  case  resulted  from  the  act  of  God,  and  could  not  have 
been  prevented  by  any  human  prudence  or  foresight;  and  although 
it  would,  in  this  respect,  come  within  the  exception  that  excuses  the 
carrier  in  case  of  loss:  still,  if  the  crew  of  the  boat  was  not  suflicient, 
or  if  she  was  not  under  the  control  of  a  master  or  pilot  sufliciently 
skilled  to  perform  the  duties  corresponding  to  his  station,  the  carrier 
cannot  avail  himself  of  the  exception,  nor  excuse  himself  from  re- 
sponsibility to  the  owner,  to  the  extent  of  the  injury  done  to  the  goods. 
And  also,  in  substance,  that  if  the  jury  think  that  the  boat  was  not 
fit  for  the  voyage,  or  the  master  not  competent,  or  the  crew  insuflS- 
cient;  they  ought  to  find  a  verdict  for  the  plaintiff,  whatever  might 
be  their  opinion  as  to  the  real  cause  of  the  upsetting  of  the  boat. 

Gibson,  C.  J.  Had  the  judge  said  no  more  than  that  the  carrier  is 
bound  to  provide  a  carriage  or  vessel  in  all  respects  adequate  to  the 
purpose,  with  a  conductor  or  crew  of  competent  skill  or  ability,  and 
that  "  failing  in  these  particulars,  though  the  loss  be  occasioned  by 

*  Brunsden  v.  Humphrey,  14  Q.  B.  D.  141,  160  (eemble);  Voerin  v,  American 
Steel  Co.,  179  111.  App.  246;  Muncie  Pulp  Co.  v.  Davis,  162  Indf.  668;  Foster  v. 
County,  63  Kan.  43;  Stepp  v.  Chicago  R.  Co.,  86  Mo.  229;  Commercial  Bank  v. 
Ten  Eyck,  48  N.  Y.  306;  McCaflFreyt;.  Twenty-Third  St.  R.  Co.,  47  Hun,  404; 
Washington  v.  Baltimore  R.  Co.,  17  W.  Va.  190  Accord. 

Compare  Clifton  v.  Hooper,  6  Q.  B.  468. 

*  Statement  condensed.    Only  part  of  opinion  is  given. 


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SECT.  I.]  HART  V.  ALLEN  43 

the  act  of  God,  he  shall  not  set  up  a  providential  calamity  to  protect 
himself  against  what  may  have  arisen  from  his  own  folly;  "  there 
would  have  been  no  room  for  an  exception.  But  the  cause  was  event- 
ually put  to  the  jury  on  a  different  principle:  "  though  the  accident 
resulted  from  the  act  of  God,"  it  was  said,  "  and  could  not  have  been 
prevented  by  any  human  prudence  or  foresight,  and  though  it  would  in 
this  respect  otherwise  have  come  within  the  exception  that  excuses  the 
carrier  in  case  of  loss:  still,  if  the  crew  of  the  office  [?]  were  not  suffi- 
cient, or  if  she  were  not  under  the  control  of  a  master  or  pilot  suf- 
ficiently skilful  to  perform  the  duties  correspondent  to  his  station,  the 
carrier  cannot  avail  himself  of  the  exception."  By  this  the  jury  were 
instructed,  in  accordance,  as  it  was  supposed,  with  the  principle  of 
Bell  V.  Reed  and  Beelor,  4  Binn.  127,  that  want  of  seaworthiness  has 
the  peculiar  effect  of  casting  every  loss,  from  whatever  cause,  on  the 
carrier,  as  a  penalty,  I  presume,  for  his  original  delinquency,  and  not 
for  its  actual  or  supposed  instrumentality  in  contributing  to  the  dis- 
aster, which  is  admitted  to  have  been  produced,  in  this  instance,  by 
causes  imconnected  with  the  master  or  crew,  and  to  have  been  of  a 
nature  which  no  human  force  or  sagacity  could  control. 

Does  such  a  penalty  necessarily  result  from  the  nature  of  the  con- 
tract ?  A  carrier  is  answerable  for  the  consequences  of  negligence, 
not  the  abstract  existence  of  it.  Where  the  goods  have  arrived  safe, 
no  action  lies  against  him  for  an  intervening  but  inconsequential  act 
of  carelessness;  nor  can  it  be  set  up  as  a  defence  against  payment  of 
the  freight;  and  for  this  plain  reason,  that  the  risk  from  it  was  all  his 
own.  Why,  then,  should  it,  in  any  other  case,  subject  him  to  a  loss 
which  it  did  not  contribute  to  produce,  or  give  an  advantage  to  one 
who  was  not  prejudiced  by  it  ?  It  would  require  much  to  reconcile 
to  any  principle  of  policy  or  justice,  a  measm^  of  responsibility  which 
would  cast  the  burthen  of  the  loss  on  a  carrier  whose  wagon  had  been 
snatched  away  by  a  whirlwind  in  crossing  a  bridge,  merely  because  it 
had  not  been  furnished  with  a  proper  cover  or  tilt  to  protect  the  goods 
from  the  weather.  Yet  the  omission  to  provide  such  a  cover  would  be 
gross  negUgence,  but,  Uke  that  imputed  to  the  carrier  in  the  case  before 
us,  such  as  could  have  had  no  imaginable  effect  on  the  event.  A  car- 
rier is  an  insurer  against  all  losses  without  regard  to  degrees  of  negli- 
gence in  the  production  of  them,  except  such  as  have  been  caused  by 
an  act  of  providence,  or  the  common  enemy:  and  why  is  he  so  ?  Un- 
doubtedly to  subserve  the  purposes,  not  of  justice  in  the  particular 
instance,  but  of  policy  and  convenience:  of  policy,  by  removing  from 
.  him  all  temptation  to  confederate  with  robbers  or  thieves  —  and  of 
convenience,  by  relieving  the  owner  of  the  goods  from  the  necessity 
of  proving  actual  negligence,  which,  the  fact  being  peculiarly  within 
the  knowledge  of  the  carrier  or  his  servants,  could  seldom  be  done. 
Jones  on  Bail.  108,  109;  2.  Kent,  59,  78.  Such  are  the  rule  and  the 
reason  of  it,  and  such  is  the  exception.   But  we  should  enlarge  the  rule, 


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44  HART  V.  ALLEN  [CHAP.  II. 

or  to  speak  more  properly,  narrow  the  exception  far  beyond  the  ex- 
igencies of  policy  or  convenience,  did  we  hold  him  an  insurer  against 
even  the  acts  of  providence,  as  a  punishment  for  an  abstract  delin- 
quency, where  there  was  no  room  for  the  existence  of  a  confederacy, 
or  the  operation  of  actual  negligence;  and  to  carry  a  responsibility, 
founded  in  no  principle  of  natural  equity  beyond  the  requirements  of 
necessity,  would  be  gratuitous  injustice.  A  delinquency  which  might 
have  contributed  to  the  disaster,  such,  for  instance,  as  is  imputable  to 
the  owner  of  a  ship  driven  on  a  lee  shore,  for  a  defect  in  the  rigging  or 
sails,  would  undoubtedly  be  attended  with  different  consequences; 
for  as  it  would  be  impossible  to  ascertain  the  exact  effect  of  the  delin- 
quency on  the  event,  the  loss  would  have  to  be  borne  by  the  delinquent 
on  a  very  common  principle,  by  which  any  one  whose  carelessness  has 
increased  the  danger  of  injury  from  a  sudden  commotion  of  the  ele- 
ments, is  chargeable  with  all  the  mischief  that  may  ensue:  as  in  Tur- 
berville  v.  Stamp,  Skin.  681,  where  it  was  adjudged,  that  the  negligent 
keeping  of  fire  in  a  close  would  subject  the  party  to  all  the  conse- 
quences, though  proximately  produced  by  a  sudden  storm;  and  the 
same  principle  was  held  by  this  court  in  The  Lehigh  Bridge  Company 
V.  The  Lehigh  Navigation,  4  Rawle,  9.  But  it  would  be  too  much  to 
require  of  the  carrier  to  make  good  a  loss  from  shipwreck,  for  having 
omitt^  to  provide  the  ship  with  proper  papers,  which  are  a  con- 
stituent part  of  seaworthiness,  and  the  omission  of  them  an  imdoubted 
negligence. 

The  first  question,  therefore,  will  be,  whether  the  captain  and  crew 
of  the  boat  had  the  degree  of  ability  and  skill  thus  indicated;  and  if 
it  be  found  that  they  had  not,  then  the  second  question  will  be, 
whether  the  want  of  it  contributed  in  any  degree  to  the  actual  dis- 
aster: but  if  either  of  these  be  found  for  the  carrier,  it  will  be  decision 
[decisive  ?]  of  the  cause.  It  seems,  therefore,  that  .  .  .  the  cause 
ought  to  be  put,  on  these  principles,  to  another  jury. 

Judgment  reversed,  and  a  venire  de  novo  awarded} 

1  Carlisle  Banking  Co.  v.  Bragg,  [19111 1  K.  B.  489;  Jackson  v.  Metropolitan  R. 
Co.,  2  C.  P.  D.  125;  Steel  Car  Co.  v,  Chec,  184  Fed.  868;  Louisville  R.  Co.  v. 
Pearce,  142  Ala.  680;  Florida  R.  Co.  v.  Williams.  37  Fla.  406;  Peiry  v.  Central  R., 
66  Ga.  746;  Cleveland  R.  Co.  v.  Lindsay,  109  lU.  App.  533;  City  v.  Martin.  74 
Ind.  449;  Hart  i;.  Brick  Co.,  154  la.  741;  Gojns  v.  North  Coal  Co.,  140  Kv.  323; 
County  V,  Colliaon,  122  Md.  91;  lutein  v.  Hurley,  98  Mass.  211;  McNally  v. 
ColweU,  91  Mich.  527;  Harlan  v.  St.  Louis  R.  Co.,  65  Mo.  22;  Wallace  v.  Chicago 
R.  Co.,  48  Mont.  427;  Brotherton  v.  Manhattan  Beach  Co.,  48  Neb.  563;  Koch  v. 
Fox,  71  App.  Div.  288;  Alexander  v.  City,  165  N.  C.  527;  St.  Louis  R.  Co.  v.  Hess, 
34  Okl.  615;  Thubron  i;.  Dravo  Co.,  238  Pa.  St.  443;  Anderson  v.  Southern  R. 
Co.,  70  S.  C.  490;  Newton  i;.  Oregon  R.  Co.,  43  Utah,  219;  Sowles  v.  Moore,  65 
Vt.  322;  Schwartz  v,  Shull,  45  W.  Va.  405;  Klatt  v.  Foster,  92  Wis.  622  Accord. 


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SECT.  II.]  SPADE  V.  LYNN  A  BOSTON  R.  CO.  45 


Section  II 
Interests  Secured 


lil 


3PADE  V.  LYNN  &  BOSTON  R.  CO. 

Supreme  Judicial  Court,  Massachusetts,  May  19, 1897. 

Reported  in  168  Massachusetts  Reports,  285. 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  by  the  alleged 
negligence  of  the  defendant.    The  declaration  contained  three  counts. 

The  third  count  ^  alleged  that  while  the  plaintiff  was  a  passenger  in 
the  defendant's  car,  and  in  the  exercise  of  due  care,  "  one  of  the  de- 
fendant's agents  or  servants,  in  attempting  to  remove  from  the  said 
car  a  certain  person  claimed  and  alleged  by  said  defendant's  agent  to 
be  noisy,  turbulent,  and  unfit  to  remain  as  a  passenger  in  said  car, 
conducted  himself  with  such  carelessness,  negligence,  and  with  the  use 
of  such  unnecessary  force,  that  said  agent  and  servant,  acting  thus 
negUgently,  created  a  disorder,  disturbance,  and  quarrel  in  said  car, 
and  thereby  frightened  the  plaintiff  and  subjected  her  to  a  severe 
nervous  shock,  by  which  nervous  shock  the  plaintiff  was  ph)n5ically 
prostrated  and  suffered,  and  has  continued  to  suffer,  great  mental  and 
physical  pain  and  anguish,  and  has  been  put  to  great  expense." 

The  defendant's  answer  was  a  general  denial. 

Trial  in  the  Superior  Court,  before  Mason,  C.  J. 

The  plaintiff  testified,  among  other  things,  that  the  conductor  in 
putting  off  an  intoxicated  man  twitched  him  in  such  a  way  as  to  push 
another  intoxicated  man  over  on  to  the  plaintiff.  The  evidence  for 
the  defendant  tended  to  disprove  plaintiff's  claim  that  either  of  the 
intoxicated  persons  came  in  contact  with  her,  or  assaulted  her. 

The  defendant  requested  (inter  alia)  an  instruction,  that  there  was 
no  evidence  to  warrant  a  verdict  on  the  third  count.  This  request 
was  refused. 

The  judge  instructed  the  jury  as  follows:  — 

"  Now  there  is  a  third  count  to  which  attention  must  be  called.  If 
the  jury  should  find  that  there  was  no  bodily  injury  to  the  plaintiff 
direct  from  the  acts  of  the  conductor,  that  is,  no  person  was  thrown 
against  the  plaintiff,  if  that  statement  is  not  accurate,  the  plaintiff 
still  contends  that  if  the  manner  of  the  removal  was  such  that  it  occa- 
sioned fright  and  nervous  shock  that  resulted  in  bodily  injury,  that  she 
is  still  entitled  to  recover  for  that  bodily  injury.  And  I  have  to  say  to 
you  as  matter  of  law,  that  if  the  wrongful  acts  of  the  conductor,  on  the 

>  Only  so  much  of  the  case  as  relates  to  this  count  is  given.  The  arguments  are 
omitted.  The  statement  was  compiled,  by  Professor  Jeremiah  Smith,  from  the  bill 
(rf  exceptions  filed  in  the  Social  Law  Library  of  Boston. 


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46  SPADE  V.  LYNN  A  BOSTON  R.  CO.  [CHAP.  U. 

occasion  of  removing  the  disorderly  passenger,  did  occasion  fright  and 
nervous  shock  to  the  plaintiff,  by  reason  of  which  she  sustained  bodily 
injury,  that  she  can  recover  compensation  for  that  injury. 

"  It  is  settled  law  in  this  State  that  a  person  cannot  recover  for 
mere  fright,  fear  or  mental  distress  occasioned  by  the  negligence  of 
another,  which  does  not  result  in  bodily  injury. 


"  But  when  the  fright  or  fear  or  nervous  shock  produces  a  bodily 
injury,  then  there  may  be  recovery  for  that  bodily  injury,  and  for  all 
the  pain,  mental  or  otherwise,  which  may  arise  out  of  that  bodily 
injury.  The  brain  and  the  nervous  system  are  so  closely  connected 
with  the  mind,  are  the  instruments  by  which  the  mind  communicates 
with  the  body  and  operates  upon  it,  that  we  sometimes  deal  with  the 
nervous  conditions  as  if  they  were  mental  conditions,  and  possibly  the 
testimony  has  to  some  extent  treated  them  as  one.  But  for  the  pur- 
pose of  the  principle  which  I  am  now  stating,  a  clear  distinction  exists 
between  what  is  mental  and  what  is  nervous.  The  nervous  system, 
the  brain  and  the  nerve  fibres,  are  a  part  of  the  body,  and  injury  to 
them  is  bodily  injury.  Now  if  by  the  wrongful  acts  of  this  defendant 
or  its  agents,  there  was  a  mental  shock,  fright,  and  it  ended  with  that, 
there  can  be  no  recovery.  But  if  that  mental  shock  produced  a  bodily 
injury,  a  disturbance  of  the  brain  or  nervous  system  which  continued 
and  caused  subsequent  suffering,  there  may  be  recovery  for  that  bodily 
injury  and  all  that  follows  from  it." 

To  the  above  instructions,  the  defendant  excepted. 

Verdict  for  plaintiff. 

Allen,  J.  This  case  presents  a  question  which  has  not  heretofore 
been  determined  in  this  Commonwealth,  and  in  respect  to  which  the 
decisions  elsewhere  have  not  been  uniform.  It  is  this:  whether  in  an 
action  to  recover  damages  for  an  injury  sustained  through  the  negli- 
gence of  another,  there  can  be  a  recovery  for  a  bodily  injury  caused  by 
mere  fright  and  mental  disturbance.  TTie  jury  were  instructed  that  a 
person  cannot  recover  for  mere  fright,  fear  or  mental  distress  occa- 
sioned by  the  negligence  of  another,  which  does  not  result  in  bodily 
injury,*  but  that  when  the  fright  or  fear  or  nervous  shock  produces  a 
bodily  injury,  there  may  be  a  recovery  for  that  bodily  injury,  and  for 
all  the  pain,  mental  or  otherwise,  which  may  arise  out  of  that  bodily 
injury. 

»  Western  Co. ».  Wood,  57  Fed.  471;  Kyle  ».  Chicago  R.  Co.,  182  Fed.  613;  Mc- 
Cray  v,  Sharpe,  188  Ala.  376;  Bachelder  v.  Morgan,  179  Ala.  339;  St.  Louis  Co.  v, 
Taylor,  84  Ark.  42;  Chicago  Co.  i;.  Moss,  89  Ark.  187;  Green  i;.  Southern  R.  Co.,  9 
Ga.  App.  751:  Haas  v,  Metz,  78  111.  App.  46;  Kalen  v,  Terre  Haute  Co^  18  Ind. 
App.  202;  Zabron  v.  Cunard  Co.,  151  la.  345;  Kentucky  Traction  Co.  v.  Bain,  161 
Ky.  44;  Wyman  v.  Leavitt,  71  Me.  227:  Wilson  ».  St.  Louis  R.  Co.,  160  Mo.  App. 
649;  Arthur  v.  Henry,  157  N.  C.  438;  Samarra  v.  Allegheny  Co.,  238  Pa.  St.  469; 
Folk  V,  Seaboard  Co.,  99  S.  C.  284;  Chesapeake  R.  Co.  v.  Tinsley,  116  Va.  600; 
Gulf  Co.  V,  Trott,  86  Tex.  412  Accord, 


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SECT,  n.]      SPADE  V.  LYNN  &   BOSTON  R.  CO.  47 

In  Canning  v.  Williamstown,  1  Cush.  451,  it  was  held,  in  an  action 
against  a  town  to  recover  damages  for  an  injury  sustained  by  the 
plaintiff  in  consequence  of  a  defective  bridge,  that  he  could  not  re- 
cover if  he  sustained  no  injury  to  his  person,  but  merely  incurred  risk 
and  peril  which  caused  fright  and  mental  suffering.  In  Warren  v. 
Boston  &  Maine  Railroad,  163  Mass.  484,  the  evidence  tended  to  show 
that  the  defendant's  train  struck  the  carriage  of  the  plaintiff,  thereby 
throwing  him  out  upon  the  ground,  and  it  was  held  to  be  a  physical 
injury  to  the  person  to  be  thrown  out  of  a  wagon,  or  to  be  compelled 
to  jump  out,  even  although  the  harm  consists  mainly  of  nervous  shock. 
It  was  not  therefore  a  case  of  mere  fright,  and  resulting  nervous  shock. 

The  case  calls  for  a  consideration  of  the  real  ground  upon  which  the 
liabiUty  or  non-liabiUty  of  a  defendant  guilty  of  negligence  in  a  case 
like  the  present  depends.  The  exemption  from  liabiUty  for  mere 
fright,  terror,  alarm,  or  anxiety  does  not  rest  on  the  assumption  that 
these  do  not  constitute  an  actual  injury.  They  do  in  fact  deprive  one 
of  enjoyment  and  of  comfort,  cause  real  suffering,  and  to  a  greater  or 
less  extent  disqualify  one  for  the  time  being  from  doing  the  duties  of 
life.  If  these  results  flow  from  a  wrongful  or  negligent  act,  a  recovery 
therefor  cannot  be  denied  on  the  ground  that  the  injury  is  fanciful  and 
not  real.  Nor  can  it  be  maintained  that  these  results  may  not  be  the 
direct  and  immediate  consequence  of  the  negligence.  Danger  excites 
alarm.  Few  people  are  wholly  insensible  to  the  emotions  caused  by 
imminent  danger,  though  some  are  less  affected  than  others. 

It  must  also  be  admitted  that  a  timid  or  sensitive  person  may  suffer 
not  only  in  mind,  but  also  in  body,  from  such  a  cause.  Great  emotion 
may  and  sometimes  does  produce  physical  effects.  The  action  of  the 
heart,  the  circulation  of  the  blood,  the  temperatm^  of  the  body,  as 
well  as  the  nerves  and  the  appetite,  may  all  be  affected.  A  phjrsical 
injury  may  be  directly  traceable  to  fright,  and  so  may  be  caused  by 
it.  We  cannot  say,  therefore,  that  such  consequences  may  not  flow 
proximately  from  imintentional  negligence,  and  if  compensation  in 
damages  may  be  recovered  for  a  physical  injury  so  caused,  it  is  hard 
on  principle  to  say  why  there  should  not  also  be  a  recovery  for  the 
mere  mental  suffering  when  not  accompanied  by  any  perceptible 
ph3rsical  effects. 

It  would  seem,  therefore,  that  the  real  reason  for  refusing  damages 
sustained  from  mere  fright  must  be  something  different;  and  it  prob- 
ably rests  on  the  ground  that  in  practice  it  is  impossible  satisfactorily 
to  administer  any  other  rule.  The  law  must  be  administered  in  the 
courts  according  to  general  rules.  Courts  will  aim  to  make  these  rules 
as  just  as  possible,  bearing  in  mind  that  they  are  to  be  of  general  ap- 
plication. But  as  the  law  is  a  practical  science,  having  to  do  with  the 
affairs  of  life,  any  rule  is  imwise  if  in  its  general  appUcation  it  will  not 
as  a  usual  result  serve  the  purposes  of  justice.  A  new  rule  cannot  be 
made  for  each  case,  and  there  must  therefore  be  a  certain  generality 


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48  SPADE  V.  LYNN  A  BOSTON  B.  CO.  [CHAP.  II. 

in  rules  of  law,  which  in  particular  cases  may  fail  to  meet  what  would 
be  desirable  if  the  single  case  were  alone  to  be  considered. 

Rules  of  law  respecting  the  recovery  of  damages  are  framed  with 
reference  to  the  just  rights  of  both  parties;  not  merely  what  it  might 
be  right  for  an  injured  person  to  receive,  to  afford  just  compensation 
for  his  injury,  but  also  what  it  is  just  to  compel  the  other  party  to 
pay.  One  cannot  always  look  to  others  to  make  compensation  for 
injuries  received.  Many  accidents  occur,  the  consequences  of  which 
the  sufferer  must  bear  alone.  And  in  determining  the  rules  of  law  by 
which  the  right  to  recover  compensation  for  unintended  injury  from 
others  is  to  be  governed,  regard  must  chiefly  be  paid  to  such  conditions 
as  are  usually  foimd  to  exist.  Not  only  the  transportation  of  pas- 
sengers and  the  running  of  trains,  but  the  general  conduct  of  business 
and  of  the  ordinary  affairs  of  life,  must  be  done  on  the  assumption 
that  persons  who  are  liable  to  be  affected  thereby  are  not  peculiarly 
sensitive,  and  are  of  ordinary  physical  and  mental  strength.  If,  for 
example,  a  traveller  is  sick  or  infirm,  deUcate  in  health,  specially 
nervous  or  emotional,  liable  to  be  upset  by  sUght  causes,  and  there- 
fore requiring  precautions  which  are  not  usual  or  practicable  for 
travellers  in  general,  notice  should  be  given,  so  that,  if  reasonably 
practicable,  arrangements  may  be  made  accordingly,  and  extra  care  be 
observed.^  But,  as  a  general  rule,  a  carrier  of  passengers  is  not  bound 
to  anticipate  or  to  guard  against  an  injurious  result  which  would  only 
happen  to  a  person  of  peculiar  sensitiveness.  This  limitation  of  lia- 
bility for  injury  of  another  description  is  intimated  in  Allsop  v.  Allsop, 
5  H.  &  N.  534,  538,  539.  One  may  be  held  bound  to  anticipate  and 
guard  against  the  probable  consequences  to  ordinary  people,  but  to 
carry  the  rule  of  damages  further  imposes  an  undue  measure  of  respon- 
sibihty  upon  those  who  are  guilty  only  of  unintentional  negligence. 
The  general  rule  limiting  damages  in  such  a  case  to  the  natural  and 
probable  consequences  of  the  acts  done  is  of  wide  appUcation,  and  has 
often  been  expressed  and  appUed.  Lombard  v,  Lennox,  155  Mass.  70; 
White  V.  Dresser,  135  Mass.  150;  Fillebrown  v.  Hoar,  124  Mass.  580; 
Derry  v.  FUtner,  118  Mass.  131;  Milwaukee  &  St.  Paul  Railway  v. 
KeUogg,  94  U.  S.  469,  475;  Wyman  v.  Leavitt,  71  Maine,  227;  EUis 
V.  Cleveland,  55  Vt.  358;  PhilUps  v.  Dickerson,  85  111.  11;  Hampton 
V.  Jones,  58  Iowa,  317;  Renner  v.  Canfield,  36  Minn.  90;  Lynch  v. 
Knight,  9  H.  L.  Cas.  577, 591, 595, 598;  The  Nottmg  HiU,  9  P.  D.  105; 
Hobbs  V,  London  &  Southwestern  Railway,  L.  R.  10  Q.  B.  Ill,  122. 

The  law  of  negUgence  in  its  special  application  to  cases  of  accidents 
has  received  great  development  in  recent  years.     The  number  of 

*  "  Ordinary  street  cars  must  be  run  with  reference  to  ordinary  susceptibilities, 
and  the  liability  of  their  proprietors  cannot  be  increased  simply  by  a  passenger's 
notifying  the  conductor  that  he  has  unstable  nerves."  Holmes  J.,  m  Spade  v. 
L>Tin  R.  Co.,  172  Mass.  488,  491.  But  compare  Webber  v.  Old  Colony  K.  Co., 
210  Mass.  432. 


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SECT.  II.]      SPADE  V.   LYNN  A  BOSTON  R.  CO.  49 

actions  brought  is  very  great.  This  should  lead  courts  well  to  con- 
sider the  grounds  on  which  claims  for  compensation  properly  rest,  and 
the  necessary  limitations  of  the  right  to  recover.  We  remain  satisfied 
with  the  rule  that  there  can  be  no  recovery  for  fright,  terror,  alarm, 
anxiety,  or  distress  of  mind,  if  these  are  unaccompanied  by  some 
physical  injury;  and  if  this  rule  is  to  stand,  we  think  it  should  also  be 
held  that  there  can  be  no  recovery  for  such  physical  injuries  as  may  be 
caused  solely  by  such  mental  disturbance,  where  there  is  no  injury  to 
the  person  from  without.  The  logical  vindication  of  this  rule  is,  that 
it  is  imreasonable  to  hold  persons  who  are  merely  negligent  bound  to 
anticipate  and  guard  against  fright  and  the  consequences  of  fright; 
and  that  this  would  open  a  wide  door  for  imjust  claims,  which  could 
not  successfully  be  met.  These  views  are  supported  by  the  following 
decisions:  Victorian  Railways  Commissioners  v.  Coultas,  13  App.  Cas. 
222;  Mitchell  v.  Rochester  Railway,  161  N.  Y.  107;  Ewmg  v.  Pitts- 
burg, Cincinnati,  Chicago  &  St.  Louis  Railway,  147  Perm.  St.  40: 
Haile  v.  Texas  A  Pacific  Railway,  60  Fed.  Rep.  557. 

In  the  following  cases,  a  different  view  was  taken:  Bell  v.  Great 
Northern  Railway,  26  L.  R.  (Ir.)  428;  Purcell  v.  St.  Paul  City  Rail- 
way, 48  Minn.  134;  Fitzpatrick  v.  Great  Western  Railway,  12  U.  C. 
Q.  B.  645.    See  also  Beven,  Negligence,  77  et  seq. 

It  is  hardly  necessary  to  add  that  this  decision  does  not  reach  those 
classes  of  actions  where  an  intention  to  cause  mental  distress  or  to 
hurt  the  feelings  is  shown,  or  is  reasonably  to  be  inferred,  as  for  ex- 
ample, in  cases  of  seduction,  slander,  malicious  prosecution  or  arrest, 
and  some  others.  Nor  do  we  include  cases  of  acts  done  with  gross 
carelessness  or  recklessness,  showing  utter  indifference  to  such  conse- 
quences, when  they  must  have  been  in  the  actor's  mind.  Lombard  v. 
Lennox,  and  Fillebrown  v.  Hoar,  already  cited.  Meagher  v,  Driscoll, 
99  Mass.  281. 

In  the  present  case,  no  such  considerations  entered  into  the  rulings 
or  were  presented  by  the  facts.    The  entry  therefore  must  be 

Exceptions  sustained} 

*  Victorian  Commissioners  v,  Coultas,  13  App.  Cas.  222;  Haile  v.  Tex.  Co.,  60 
Fed.  557;  St.  Louis  Co.  v.  Bragg,  69  Ark.  402:  Braun  v.  Craven,  175  111.  401 
(semble);  Kansas  Co.  v.  Dalton,  65  Kan.  661;  Morse  v.  Chesapeake  Co.,  117  Ky. 
11;  Reed  v.  Ford,  129  Ky.  471;  White  v.  Sander,  168  Mass.  296:  Smith  v.  Postal 
Co.,  174  Mass.  576;  Homans  v.  Boston  Co.,  180  Mass.  456  {senwle);  Cameron  v. 
N.  E.  Co.,  182  Mass.  310  (aemble);  Nelson  v.  Crawford,  122  Mich.  466;  Crutcher 
V.  Cleveland  Co.,  132  Mo.  App.  311;  Deming  v.  Chicago  Co.,  80  Mo.  App.  152; 
Rawlings  v.  Wabash  Co.,  97  Mo.  App.  515;  Ward  v.  West  Co.,  65  N.  J.  Law,  383; 
Porter  v.  Del.  Co.,  73  N.  J.  Law,  405  (semble);  Mitchell  v.  Rochester  Co.,  151 
N.  Y.  107;  Newton  v.  N.  Y.  Co.,  106  App.  Div.  415  (semble);  Prince  v.  Ridge,  32 
Misc.  666.  667  {semhle):  Hutchinson  v.  Stem,  115  App.  Div.  791:  Miller  v.  Belt 
Co.,  78  Ohio  St.  309;  Ewing  v.  Pittsburdi  Co.,  147  Pa.  St.  40;  Lmn  r.Duquesne 
Co.,  204  Pa.  St.  551;  Huston  v.  Freemansburg,  212  Pa.  St.  548;  Hess  v.  American 
Pipe  Co.,  221  Pa.  St.  67;  Morris  v.  Lackawana  R.  Co.,  228  Pa.  St.  198;  Taylor  v. 
Atlantic  Co.,  78  S.  C.  552;  Ford  v.  Schliessman,  107  Wis.  479, 483  (semble)  Accord. 

The  damages  for  an  admitted  tort  to  the  person  may  be  enhanced  by  proof  of 
nervous  shock  caused  by  fright  induced  by  the  defendant's  misconduct.    Eagan  v. 


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60  DULIEU  V.  WHITE  AND  SONS  [CHAP.  II. 

I  DULIEU  V.  WHITE  AND  SONS 

KifiG's  Bench  Division,  June  6, 1901. 
Reported  in  [1901]  2  King*8  Bench,  669. 

Point  of  law  raised  by  pleadings.* 

The  statement  of  claim  was  as  follows:  — 

"  1.  The  plaintiff  is  the  wife  of  Arthur  David  Dulieu,  who  carries 
on  the  business  of  a  licensed  victualler  at  the  Bonner  Aims,  Bonner 
Street,  Bethnal  Green,  in  the  county  of  London. 

"  2.  On  July  20,  1900,  the  plaintiff  was  behind  the  bar  of  her  hus- 
band's said  public-house,  she  being  then  pregnant,  when  the  defend- 
ants by  their  servant  so  negligently  drove  a  pair-horse  van  as  to  drive 
it  into  the  said  public-house. 

Middlesex  R.  Co.,  212  Fed.  562,  214  Fed.  747;  Birmingham  Co.  v.  Martini,  2  Ala. 
App.  653;  Melone  v.  Sierra  Co.,  151  Cal.  113;  Seger  v.  Barkhamsted,  22  Conn. 
290;  Masters  v.  Warren,  27  Conn.  293;  Garvey  v.  Metropolitan  R.  Co.,  155  111. 
App.  601;  Pittsburgh  Co.  v.  Sponier,  85  Ind.  165;  McClintic  v.  Bckman,  153  Ky. 
704:  Newport  Co.  v.  Gholson,  10  Ky.  L.  Rep.  938;  City  Co.  v.  Robinson,  12  Ky. 
L.  Rep.  555;  Green  v.  Shoemaker,  111  Md.  69;  Warren  v,  Boston  Co.,  163  Mass. 
484;  Homans  v.  Boston  Co.,  180  Mass.  456;  Cameron  v.  N.  E.  Co.,  182  Mass.  310; 
DriscoU  V.  Gaflfey,  207  Mass.  102;  Conlev  v.  United  Drug  Co.,  218  Mass.  238; 
Smith  t;.  St.  Paul  Co.,  30  Minn.  169;  Holfingshed  v.  Yazoo  R.  Co.,  99  Miss.  464; 
Butts  V,  Nat.  Bank,  99  Mo.  App.  168;  Breen  v.  St.  Louis  Co.,  102  Mo.  App.  479; 
Heiberger  v,  Missouri  Tel.  Co.,  133  Mo.  App.  452;  Lowe  v.  Metropolitan  K.  Co., 
145  Mo.  App.  248;  Buchanan  t>.  West  Co.,  52  N.  J.  Law,  265;  Consol.  Co.  v. 
Lambertson,  59  N.  J.  Law,  297:  Stokes  ».  Schlacter,  66  N.  J.  Law,  334;  Porter  v. 
Del.  Co.,  73  N.  J.  Law,  405;  Kennell  v.  Gershonovitz,  84  N.  J.  Law,  577;  O'Fla- 
herty  v,  Nassau  Co.,  34  App.  Div.  74  (affirmed  165  N.  Y.  624);  CoKn  v.  Ansonia 
Co..  162  App.  Div.  791;  Pa.  Co.  t;.  Graham,  63  Pa.  St.  290;  Scott  v.  Montgomery, 
95  Pa.  St.  444;  Ewing  v.  Pittsburgh  Co.,  147  Pa.  St.  40  (semble);  Linn  v.  Du- 
quesne  Co.,  204  Pa.  St.  551  (semble);  Samarra  v,  Allegheny  R.  Co.,  238  Pa.  St. 
469;  Folk  v.  Seaboard  Co.,  99  S.  C.  284;  Godeau  v.  Blood,  52  Vt.  251;  Nordgren 
V.  liwrence,  74  Wash.  305;  Shutz  v.  Chicago  Co.^  73  Wis.  147;  and  even  though 
the  admitted  tort  is  only  an  assault  as  distinguished  from  a  battery.  Kline  v. 
Kline,  158  Ind.  602;  Williams  v.  Underbill,  63  App.  Div.  223;  Leach  v.  Leach,  11 
Tex.  Civ.  App.  699.  It  must  be  shown  that  there  was  causal  connection  between 
the  fridit  and  the  shock.    Hack  r.  Dady,  142  ^p.  Div.  510. 

In  Homans  v.  Boston  Co.,  supra,  the  court  said,  through  Holmes,  C.  J.:  "  As 
has  been  explained  repeatedly,  it  is  an  arbitrary  exception,  based  upon  a  notion  of 
what  is  practicable,  that  prevents  a  recovery  for  visible  illness  resulting  from 
nervous  shock  ^one.  Spade  v.  Lynn  Co.;  Smith  v.  Postal  Co.,  174  Mass.  576. 
But  when  there  has  been  a  battery  and  the  nervous  shock  results  from  the  same 
wrongful  management  as  the  battery,  it  is  at  least  equally  impracticable  to  go 
further  and  to  inquire  whether  the  shock  comes  through  the  battery  or  along  with 
it.  Even  were  it  otherwise,  recognizing  as  we  must  the  logic  in  favor  of  the  plain- 
tiff when  a  remedy  is  denied  because  the  only  immediate  wrong  was  a  shock  to  the 
nerves,  we  think  that  when  the  reality  of  the  cause  is  guaranteed  by  proof  of  a  sub- 
stantial battery  of  the  person  there  is  no  occasion  to  press  further  the  exception  to 
general  rules."    See  also  Spade  v.  Lynn  Co.,  172  Mass.  690,  per  Holmes,  C.  J. 

Liability  for  frightening  an  Animal  to  Death.  The  doctrine  of  the  principal  case 
was  carried  so  far  in  Lee  v.  Burlington,  113  la.,  356,  that  no  recovery  was  allowed 
for  the  death  of  a  horse  from  fright  caused  by  the  careless  conduct  of  the  defend- 
ant. But  the  opposite  view  prevailed  in  Louisville  R.  Co.  v.  Melton,  158  Ala.  509, 
and  Conklin  v.  Thompson,  29  Barb.  218. 

^  Portions  of  the  statement  of  facts  have  been  omitted. 


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SECT.  II.]  DULIEU  V.  WHITE  AND  SONS  51 

"  3.  The  defendants  were  also  negligent  in  entrusting  the  driving 
of  the  said  horses  and  van  to  their  said  servant,  who  had  no  knowl- 
edge or  skill  in  driving. 

"  4.  The  plaintiff  in  consequence  sustained  a  severe  shock,  and  was 
and  is  seriously  ill,  and  on  September  29, 1900,  gave  premature  birth 
to  a  child. 

''  5.  In  consequence  of  the  shock  sustained  by  the  plaintiff  the  said 
child  was  bom  an  idiot. 

"  The  plaintiff  claims  damages  in  respect  of  the  aforesaid  matters." 

The  statement  of  defence,  after  denying  the  allegations  contained 
in  the  statement  of  claim  proceeded:  — 

"  3.  The  defendants  submit  as  a  matter  of  law  that  the  damages 
sought  to  be  recovered  herein  are  too  remote,  and  that  the  statement 
of  claim  on  the  face  thereof  discloses  no  cause  of  action." 

Cur.  adv.  vuU. 

Kennedy,  J.  In  this  case  the  only  question  for  the  judgment  of  the 
court  is  in  the  nature  of  a  demurrer. 


The  head  of  damage  alleged  in  paragraph  5  was  rightly  treated  by 
the  plaintiff's  counsel  as  untenable. 

Ilie  defendant's  counsel  summed  up  his  contention  against  the 
legal  vaUdity  of  the  plaintiff's  claim  in  the  statement  that  no  action 
for  negligence  will  he  where  there  is  no  immediate  physical  injury 
resulting  to  the  plaintiff. 

This  is  an  action  on  the  case  for  negligence  —  that  is  to  say,  for 
a  breach  on  the  part  of  the  defendant's  servant  of  the  duty  to  use 
reasonable  and  proper  care  iand  skill  in  the  management  of  the  de- 
fendant's van.  In  order  to  succeed,  the  plaintiff  has  to  prove  resulting 
damage  to  herself  and  **  a  natural  and  continuous  sequence  uninter- 
ruptedly connecting  the  breach  of  duty  with  the  damage  as  cause  and 
effect."  Shearman  and  Redfield,  Negligence,  cited  in  Beven,  Negli- 
gence in  Law,  2d  ed.  p.  7.  In  regard  to  the  existence  of  the  duty  here, 
there  can,  I  think,  be  no  question.  The  driver  of  a  van  and  horses  in 
a  highway  owes  a  duty  to  use  reasonable  and  proper  care  and  skill  so 
as  not  to  injure  either  persons  lawfully  using  the  Wghway,  or  property 
adjoining  the  highway,  or  persons  who,  like  the  plaintiff  are  lawfully 
occup3ang  that  property.  His  legal  duty  towards  all  appears  to  me 
to  be  practically  identical  in  character  and  in  degree.  I  understood 
the  plaintiff's  counsel  to  suggest  that  there  might  exist  a  higher  degree 
of  duty  towards  the  plaintiff  sitting  in  a  house  than  would  have  existed 
had  she  been  in  the  street.  I  am  not  satisfied  that  this  is  so.  The 
wa3rfarer  in  the  street,  as  it  seems  to  me,  has  in  law  as  much  right  of 
redress  if  he  is  injured  in  person  or  in  property  by  the  negligence  of 
another  as  the  man  who  is  lawfully  sitting  on  a  side-wall  or  in  an 
adjoining  house.    "  The  whole  law  of  negligence  assumes  the  principle 


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52  DULIEU  V.  WHITE  AND  SONS  [CHAP.  II. 

of  '  Volenti  non  fit  injuria  '  not  to  be  applicable,"  for  reasons  which 
Si^  Frederick  Pollock  points  out  (The  Law  of  Torts,  by  Sir  F.  Pollock, 
6th  ed.  pp.  166,  167),  in  a  passage  which  follows  the  quotation  which 
I  have  just  made.  The  legal  obligations  of  the  driver  of  horses  are  the 
same,  I  think,  towards  the  man  indoors  as  to  the  man  out  of  doors; 
the  only  question  here  is  whether  therq  is  an  actionable  breach  of  those 
obligations  if  the  man  in  either  case  is  made  ill  in  body  by  such 
negligent  driving  as  does  not  break  his  ribs  but  shocks  his  nerves. 

Before  proceeding  to  consider  the  objections  to  the  maintenance  of 
such  a  claim  as  that  of  the  present  plaintiff,  it  is,  I  think,  desirable  for 
clearness'  sake  to  see  exactly  what  are  the  facts  which  ought  to  be 
assumed  for  the  purposes  of  the  argument.  We  must  assume  in  her 
favor  all  that  can  be  assumed  consistently  with  the  allegations  of  the 
statement  of  claim.  We  must,  therefore,  take  it  as  proved  that  the 
negligent  driving  of  the  defendants'  servant  reasonably  and  naturally 
caused  a  nervous  or  mental  shock  to  the  plaintiff  by  her  reasonable 
apprehension  of  immediate  bodily  hurt,  and  that  the  premature  child- 
birth, with  the  physical  pain  and  suffering  which  accompanied  it,  was 
a  natural  and  a  direct  consequence  of  the  shock.  I  may  just  say  in 
passing  that  I  use  the  words  "  nervous  "  and  "  mental  "  as  inter- 
changeable epithets  on  the  authority  of  the  judgment  of  the  Privy 
Coimcil  in  Victorian  Railways  Commissioners  v.  Coultas,  13  App.  Cas. 
222;  but  I  venture  to  think  "  nervous  "  is  probably  the  more  correct 
epithet  where  terror  operates  through  parts  of  the  physical  organism 
to  produce  bodily  illness  as  in  the  present  case.  The  use  of  the  epithet 
"  mental ''  requires  caution,  in  view  of  the  undoubted  rule  that  merely 
mental  pain  unaccompanied  by  any  injury  to  the  person  cannot 
sustain  an  action  of  this  kind.   Beven,  Negligence  in  Law,  2d  ed.  p.  77. 

Now,  these  being  the  assumed  facts,  what  are  the  defendants' 
arguments  against  the  plaintiff's  right  to  recover  damages  in  this 
action  ? 

First  of  all,  it  is  argued,  fright  caused  by  negligence  is  not  in  itself 
a  cause  of  action  —  ergo,  none  of  its  consequences  can  give  a  cause  of 
action.  In  Mitchell  v.  Rochester  Ry.  Co.,  (1896)  151  N.  Y.  107,  the 
point  is  put  thus:  "  That  the  result  may  be  nervous  disease,  blind- 
ness, insanity,  or  even  a  miscarriage,  in  no  way  changes  the  principle. 
These  results  merely  show  the  degree  of  fright  or  the  extent  of  the 
damages.  The  right  of  action  must  still  depend  upon  the  question 
whether  a  recovery  may  be  had  for  fright."  With  all  respect  to  the 
learned  judges  who  have  so  held,  I  feel  a  difficulty  in  following  this 
reasoning.  No  doubt  damage  is  an  essential  element  in  a  right  of 
action  for  negligence.  I  cannot  successfully  sue  him  who  has  failed 
in  his  duty  of  using  reasonable  skill  and  care  towards  me  imless  I  can 
prove  some  material  and  measurable  damage.  If  his  negligence  has 
caused  me  neither  injury  to  property  nor  physical  mischief,  but  only 
an  unpleasant  emotion  of  more  or  less  transient  duration,  an  essential 


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SECT.  II.]  DULIEU  V.  WHITE  AND  SONS  53 

constituent  of  a  right  of  action  for  negligence  is  lacking.  "  Fear,"  as 
Sir  Frederick  Pollock  has  stated  (The  Law  of  Torts,  6th  ed.  p.  51), 
''  taken  alone  falls  short  of  being  actual  damage  not  because  it  is  a 
remote  or  unlikely  consequence,  but  because  it  can  be  proved  and 
measured  only  by  physical  eflfects."  It  may,  I  conceive,  be  truly  said 
that,  viewed  in  relation  to  an  action  for  ne^gence,  direct  bodily  im- 
pact is,  without  resulting  damage,  as  insufficient  a  ground  of  legal 
claim  as  the  infliction  of  fright.  That  fright  —  where  physical  injury 
is  directly  produced  by  it  —  cannot  be  a  groimd  of  action  merely 
because  of  the  absence  of  any  accompanying  impact  appears  to  me  to 
be  a  contention  both  unreasonable  and  contrary  to  the  weight  of 
authority. 

[The  learned  judge  then  cited  cases  in  which  an  action  was  held  to 
lie,  where  the  only  physical  impact  did  not  accompany  but  was  a 
consequence  of  the  fright;  also  a  case  where  there  was  nothing  in  the 
nature  of  impact  and  yet  recovery  was  allowed.] 

If  impact  be  not  necessary,  and  if,  as  must  be  assumed  here,  the 
fear  is  proved  to  have  naturally  and  directly  produced  physical  effects, 
so  that  the  ill  results  of  the  negligence  which  caused  the  fear  are  as 
measurable  in  damages  as  the  same  results  would  be  if  they  arose 
from  an  actual  impact,  why  should  not  an  action  for  those  damages 
lie  just  as  well  as  it  lies  where  there  has  been  an  actual  impact  ?  It  is 
not,  however,  to  be  taken  that  in  my  view  every  nervous  shock  occa- 
sioned by  negligence  and  producing  physical  injury  to  the  sufferer 
gives  a  cause  of  action.  There  is,  I  am  inclined  to  think,  at  least  one 
limitation.  The  shock,  where  it  operates  through  the  mind,  must  be 
a  shock  which  arises  from  a  reasonable  fear  of  immediate  personal 
•injury  to  oneself.  A.  has,  I  conceive,  no  legal  duty  not  to  shock  B.'s 
nerves  by  the  exhibition  of  negligence  towards  C.,  or  towards  the 
property  of  B.  or  C.  The  limitation  was  applied  by  Wright  and 
Bruce,  JJ.,  in  the  imreported  case  of  Smith  v.  Johnson  &  CJo.,  referred 
to  by  Wright,  J.,  at  the  close  of  his  judgment  in  Wilkinson  v.  Down- 
ton,  [1897]  2  Q.  B.  57,  at  p.  61.  In  Smith  v.  Johnson  &  Co.  (unre- 
ported), a  man  was  killed  by  the  defendant's  negligence  in  the  sight 
of  the  plaintiff,  and  the  plaintiff  became  ill,  not  from  the  shock  pro- 
duced by  fear  of  harm  to  himself,  but  from  the  shock  of  seeing  another 
person  killed.  The  court  held  that  this  harm  was  too  remote  a  con- 
sequence of  the  negligence.^    I  should  m3rself ,  as  I  have  already  indi- 

*  See  to  the  same  effect  Phillips  v.  Dickerson,  85  111.  11;  Cleveland  Co.  v. 
Stewart,  24  Ind.  App.  374:  Gaskins  v.  Runkle,  25  Ind.  App.  584;  Mahoney  v. 
Dankwart,  108  la.  321;  McGee  v.  Vanover,  148  Ky.  737;  Chesapeake  R.  Co.  v. 
Robinett,  151  Ky.  778;  Sperier  v.  Ott,  116  La.  1087;  Renner  v.  Canfield,  36  Minn. 
90;  Bucknam  v.  Great  Northern  R.  Co.,  76  Minn.  373;  Sanderson  v.  Great  North- 
em  R.  Co.,  88  Minn.  162;  Hutchinson  v.  Stem,  115  App.  Div.  791;  Gosa  v. 
Southern  Ry.,  67  S.  C.  347;  Gulf  R.  Co.  v.  Overton,  101  Tex.  583  (but  compare 
Gulf  R.  Co.  V.  Coopwood,  16  Tex.  Ct.  Rep.  354);  Taylor  v.  Spokane  R.  Co.,  72 
Wash.  378,  rev'g  67  Wash.  96.  f  ^       j  t^ 


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54  DULIEU  V.  WHITE  AND  SONS  [CHAP.  II. 

cated,  have  been  inclined  to  go  a  step  further,  and  to  hold  upon  the 
facts  in  Smith  v.  Johnson  &  Co.  that,  as  the  defendant  neither  in- 
tended to  afifect  the  plaintiff  injuriously  nor  did  an3rthing  which  could 
reasonably  or  naturally  be  expected  to  aflfect  him  injuriously,  there 
was  no  evidence  of  any  breach  of  legal  duty  towards  the  plaintiff  or  in 
regard  to  him  of  that  absence  of  care  according  to  the  circumstances 
which  Willes,  J.,  in  Vaughan  v.  Taff  Vale  Ry.  Co.,  (1860)  6  H.  &.  N. 
679,  at  p.  688,  gave  as  a  definition  of  negligence. 

In  order  to  illustrate  my  meaning  in  the  concrete,  I  say  that  I 
should  not  be  prepared  in  the  present  case  to  hold  that  the  plaintiff 
was  entitled  to  maintain  this  action  if  the  nervous  shock  was  pro- 
duced, not  by  the  fear  of  bodily  injury  to  herself,  but  by  horror  or 
vexation  arising  from  the  sight  of  mischief  being  threatened  or  done 
either  to  some  other  person,  or  to  her  own  or  her  husband's  property, 
by  the  intrusion  of  the  defendants'  van  and  horses.  The  cause  of  the 
nervous  shock  is  one  of  the  things  which  the  jury  will  have  to  deter- 
mine at  the  trial. 

It  remains  to  consider  the  second  and  somewhat  different  form  in 
which  the  defendants'  counsel  put  his  objection  to  the  right  of  the 
plaintiff  to  maintain  this  action.  He  contended  that  the  damages  are 
too  remote,  and  reUed  much  upon  the  decision  of  the  Privy  Coimcil 
in  Victorian  Railways  Commissioners  v.  Coultas,  13  App.  Cas.  222. 


The  principal  ground  of  their  judgment  is  formulated  in  the  follow- 
ing sentence:  "  Damages  arising  from  mere  sudden  terror  unaccom- 
panied by  any  actual  phjrsical  injury,  but  occasioning  a  nervous  or  * 
mental  diock,  cannot  under  such  circumstances,  their  Lordships 
think,  be  considered  a  consequence  which,  in  the  ordinary  course  of 
things,  would  flow  from  the  negligence  of  the  gate-keeper." 

Why  is  the  accompaniment  of  physical  injury  essential  ?  For  my 
own  part,  I  should  not  like  to  assume  it  to  be  scientifically  true  that 
a  nervous  shock  which  causes  serious  bodily  illness  is  not  actually 
accompanied  by  physical  injury,  although  it  may  be  impossible,  or  at 
least  difficult,  to  detect  the  injury  at  the  time  in  the  living  subject. 
I  should  not  be  surprised  if  the  surgeon  or  the  physiologist  told  us 
that  nervous  shock  is  or  may  be  in  itself  an  injurious  affection  of  the 
physical  organism.  Let  it  be  assumed,  however,  that  the  physical 
injury  follows  the  shock,  but  that  the  jury  are  satisfied  upon  proper 
and  sufficient  medical  evidence  that  it  follows  the  shock  as  its  direct 
and  natural  effect,  is  there  any  legal  reason  for  saying  that  the  damage 
is  less  proximate  in  the  legal  sense  than  damage  which  arises  contem- 
poraneously ?  "  As  well  might  it  be  said  "  (I  am  quoting  from  the 
judgment  of  Palles,  C.  B.,  26  L.  R.  Ir.  at  p.  439)  "  that  a  death  caused 


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SECT.  II.]  DULIEU  V.  WHITE  AND  SONS  55 

by  poison  is  not  to  be  attributed  to  the  person  who  administered  it 
because  the  mortal  effect  is  not  produced  contemporaneously  with  its 
administration.''  Remoteness  as  a  legal  ground  for  the  exclusion  of 
damage  in  an  action  of  tort  means,  not  severance  in  point  of  time,  but 
the  absence  of  direct  and  natural  causal  sequence  —  the  inability  to 
trace  in  regard  to  the  damage  the  "  propter  hoc  "  in  a  necessary  or 
natural  descent  from  the  wrongful  act.  As  a  matter  of  experience,  I 
should  say  that  the  injury  to  health  which  forms  the  main  ground  of 
damages  in  actions  of  negligence,  eitheif  in  cases  of  railway  accidents 
or  in  running-down  cases,  frequently  is  proved,  not  as  a  concomitant 
of  the  occurrence,  but  as  one  of  the  sequels. 


[As  to  Mitchell  v.  Rochester  Ry.  Co.,  151  N.  Y.  107,  cited  by  defend- 
ant.] Shortly,  the  facts  there  were  that  the  plaintiff,  whilst  waiting 
for  a  tram-car,  was  nearly  run  over  by  the  negligent  management  of 
the  defendant's  servant  of  a  car  drawn  by  a  pair  of  horses,  and  owing 
to  terror  so  caused  fainted,  lost  consciousness,  and  subsequently  had 
a  miscarriage  and  consequent  illness. 


It  may  be  admitted  that  the  plaintiff  in  this  American  case  would 
not  have  suffered  exactly  as  she  did,  and  probably  not  to  the  same 
extent  as  she  did,  if  she  had  not  been  pregnant  at  the  time;  and  no 
doubt  the  driver  of  the  defendant's  horses  could  not  anticipate  that 
she  was  in  this  condition.  But  what  does  that  fact  matter  ?  If  a  man 
is  negligently  run  over  or  otherwise  negligently  injured  in  his  body, 
it  is  no  answer  to  the  sufferer's  claim  for  damages  that  he  would  have 
suffered  less  injury,  or  no  injury  at  all,  if  he  had  not  had  an  imusually 
thin  skull  or  an  unusually  weak  heart. 

[After  commenting  on  the  opinion  in  Spade  v,  Lynn  &  Boston  R.  R., 
168  Mass.  285.] 

Naturally  one  is  diflfident  of  one's  opinion  when  one  finds  that  it  is 
not  in  accord  with  those  which  have  been  expressed  by  such  judicial 
authorities  as  those  to  which  I  have  just  referred.  But  certainly,  if, 
as  is  admitted,  and  I  think  justly  admitted,  by  the  Massachusetts 
judgment,  a  claim  for  damages  for  physical  injuries  naturally  and 
directly  resulting  from  nervous  shock  which  is  due  to  the  negligence 
of  another  in  causing  fear  of  immediate  bodily  hurt  is  in  principle  not 
too  remote  to  be  recoverable  in  law,  I  should  be  sorry  to  adopt  a  rule 
which  would  bar  all  such  claims  on  grounds  of  policy  alone,  and  in 
order  to  prevent  the  possible  success  of  unrighteous  or  groundless 
actions.  Such  a  course  involves  the  denial  of  redress  in  meritorious 
cases,  and  it  necessarily  implies  a  certain  degree  of  distrust,  which  I 
do  not  share,  in  the  capacity  of  legal  tribunals  to  get  at  the  truth  in 
this  class  of  claims.  My  experience  gives  me  no  reason  to  suppose 
that  a  jury  would  really  have  more  difficulty  in  weighing  the  medical 
evidence  as  to  the  effects  of  nervous  shock  through  fright,  than  in 


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56  DULIEU  V.  WHITE  AND  SONS  [CHAP.  II. 

weighing  the  like  evidence  as  to  the  effects  of  nervous  shock  through 
a  railway  collision  or  a  carriage  accident,  where,  as  often  happens,  no 
palpable  injury,  or  very  slight  palpable  injury,  has  been  occasioned 
at  the  time. 

I  have  now,  I  think,  dealt  with  the  authorities  and  the  arguments 
upon  which  the  defendants  rely,  and  I  have  done  go  at  greater  length 
than  I  should  have  wished  to  do  but  for  the  general  interest  of  the 
points  involved  and  the  difficulties  which  the  conflict  of  authorities 
undoubtedly  present.  In  this  conflict  I  prefer,  as  I  have  already  in- 
dicated, the  two  decisions  of  the  Irish  courts.  They  seem  to  me  to 
constitute  strong  and  clear  authorities  for  the  plaintiff's  contention. 
It  was  suggested  on  the  part  of  the  defendants  that  the  appUcability 
of  the  judgment  in  Bell  v.  Great  Northern  Company  of  Ireland,  26 
L.  R.  Ir.  428,  is  affected  by  the  fact  that  the  female  in  that  action  was 
a  passenger  on  the  defendant's  railway,  and  as  such  had  contractual 
rights.  It  appears  to  me  that  in  the  circumstances  this  fact  can  make 
no  practical  difference  whatever.  In  the  Irish  case  there  was  no  special 
contract,  no  notice  to  the  railway  company,  when  they  accepted  her 
as  a  passenger,  that  she  was  particularly  delicate,  or  peculiarly  ner- 
vous or  liable  to  fright.  The  contractual  duty  existed,  as  it  often  does 
exist,  concurrently  with  the  duty  apa^  from  contract;  but  the  one  is 
in  such  circumstances  practically  coextensive  with  the  other  in  the 
rights  which  it  gives  and  the  corresponding  UabiUties  which  it  imposes. 

I  hold  that,  if  on  the  trial  of  this  action  the  jury  find  the  issues  left 
to  them  as  the  jury  foimd  them  in  Bell  v.  Great  Northern  Railway 
Company  of  Ireland,  26  L.  R.  Ir.  428,  after  the  direction  of  Andrews, 
J.,  which  was  approved  by  the  Exchequer  Division,  the  plaintiff  will 
have  made  out  a  good  cause  of  action. 

Phillimore,  J. 


I  think  there  may  be  cases  in  which  A.  owes  a  duty  to  B.  not  to 
inflict  a  mental  shock  on  him  or  her,  and  that  in  such  a  case,  if  A.  does 
inflict  such  a  shock  upon  B.  —  as  by  terrifying  B.  —  and  physical 
damage  thereby  ensues,  B.  may  have  an  action  for  the  physical 
damage,  though  the  medium  through  which  it  has  been  inflicted  is 
the  mind. 

I  think  there  is  some  assistance  to  be  got  from  the  cases  where  fear 
of  impending  danger  has  induced  a  passenger  to  take  means  of  escape 
which  have  in  the  result  proved  injurious  to  him,  and  where  the  carrier 
has  been  held  Uable  for  these  injuries,  as  in  Jones  v,  Boyce,  1  Stark. 
493. 


[The  learned  judge  thought  it  possible  that  he  might  have  come  to 
the  same  conclusion  as  that  arrived  at  in  Victorian  Railways  Commis- 


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SECT.  II.]  DULIEU  V.  WHITE  AND  SONS  57 

sioners  v.  Coultas,  though  not  for  the  reasons  which  have  prominence 
in  the  judgment.  He  also  thought  that  he  should  have  come  to  the 
same  decision  as  the  Massachusetts  court  in  Spade  v,  Lynn  &  Boston 
R.  R.;  but  that  he  should  not  have  expressed  it  in  such  broad  and 
sweeping  language.] 


In  the  case  before  us  the  plaintiff,  a  pregnant  woman,  was  in  her 
house.  It  is  said  that  she  was  not  the  tenant  in  possession  and  could 
not  TnaintAJn  trespass  quare  dausum  fregit  if  this  had  been  a  direct 
act  of  the  defendant  and  not  of  his  servant  (as  it  was).  This  is  true: 
her  husband  was  in  possession.  But  none  the  less  it  was  her  home, 
where  she  had  a  right,  and  on  some  occasions  a  duty,  to  be;  and  it 
seems  to  me  that  if  the  tenant  himself  could  maintain  an  action,  his 
wife  or  child  could  do  likewise.  It  is  averred  that  by  reason  of  the 
careless  driving  of  the  defendants'  servant  a  pair-horse  van  came  some 
way  into  the  room,  and  so  frightened  her  that  serious  physical  con- 
sequences thereby  befell  her.  If  these  averments  be  proved,  I  think 
that  there  was  a  breach  of  duty  to  her  for  which  she  can  have  dam- 
ages. The  diflBculty  in  these  cases  is  to  my  mind  not  one  as  to  the 
remoteness  of  the  damage,  but  as  to  the  uncertainty  of  there  being 
any  duty.  Once  get  the  duty  and  the  physical  damage  following  on 
the  breach  of  duty,  and  I  hold  that  the  fact  of  one  link  in  the  chain  of 
causation  being  mental  only  makes  no  difference.  The  learned  counsel 
for  the  plaintiff  has  put  it  that  every  link  is  physical  in  the  narrow 
sense.    That  may  be  or  may  not  be.    For  mjrself ,  it  is  unimportant. 


Judgment  far  plaintiff.^ 

*  Pullman  Co.  v.  Lutz,  154  Ala.  517;  Spearman  v.  McCrary,  4  Ala.  App.  473; 
Sloane  v.  So.  Co.,  Ill  Cal.  668;  Watson  v.  Dilte.  116  la.  249;  Cowan  v.  Tel.  Co., 
122  la.  379.  382  (sembk);  Purcell  v.  St.  Paul  Co.,  48  Minn.  134,  138;  Lesch  v. 
Great  Northern  R.  Co.,  97  Minn.  503;  Watkina  v.  Kaolin  Co.,  131  N.  C.  536; 
Taber  v.  Seaboard  Co.,  81  S.  C.  317:  Simone  v.  R.  I.  Co..  28  R.  I.  186;  Mack  v. 
South  Co..  52  S.  C.  323;  Hill  t;.  Kimball,  76  Tex.  210;  Gulf  Co.  v.  Hayter,  93  Tex. 
239:  Yoakimi  v.  Kroeger,  (Tex.  Civ.  App.)  27  S.  W.  953;  St.  Louis  Co.  v.  Mur- 
dock,  54  Tex.  Civ.  App.  249;  Pankopft;.  Hinkley,  141  Wis.  146;  Fitzpatrick  v, 
Gr.  W.  Co.,  12  Up.  Can.  a  B.  645;  Bell  v.  Great  Northern  R.  Co.,  26  L.  R.  Ir. 
428:  Cooper  v.  Caledonia  Co.  (Court  of  Sess.,  June  14,  1902),  4.  F.  880  Accord. 

See  Bohlen,  Right  to  Recover  for  Injury  Resulting  from  Ne^genoe  without 
Impact,  41  Am.  L.  Reg.  &  Rev.  141. 

Menial  Anguish  caused  by  Negligence  in  Trantmission  of  Telegrams.  In  a  few 
states  the  addressee  is  allowed  to  recover  damages  for  mental  anguish  resulting 
from  the  negUgent  failiure  of  a  telegraph  company  to  make  seasonable  delivery  of 
a  message.  Mentzer  v.  Western  Co.,  93  la.  752;  Cowan  v.  Western  Co.,  122  la. 
379;  Hurlburt  v.  Western  Co.,  123  la.  295;  Chapman  v.  Western  Co.,  90  Ky.  265; 
Western  Co.  v.  Van  Cleave,  107  Ky.  464;  Western  Co.  v.  Fisher,  107  Ky.  513; 
Graham  v.  Western  Co^  109  La.  1069;  Barnes  v.  Western  Co.,  27  Nev.  438 
(semble);  Thompson  v.  Western  Co.,  106  N.  C.  649;  Young  v.  Western  Co.,  107 
N.  C.  370;  Bryan  v.  Western  Co.,  133  N.  C.  603;  Woods  v.  Western  Co.,  148  N.  C. 
1 ;  Hellams  v.  Western  Co.,  70  S.  C.  83  {statutory):  Capers  v.  Western  Co.,  71  S.  C. 
29;  Wadsworth  v.  Western  Co.,  86  Tenn.  695;  Raiht)ad  v.  Griflfin,  92  Tenn.  694; 


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58  WILKINSON  V.  DOWNTON  [CHAP.  II. 

WILKINSON  V.  DOWNTON 

Queen's  Bench  Division,  May  8,  1897. 

Law  Reports,  [1897]  2  Queen's  Bench,  57. 

Wright,  J.*  In  this  case  the  defendant,  in  the  execution  of  what 
he  seems  to  have  regarded  as  a  practical  joke,  represented  to  the  plain- 
tiff that  he  was  charged  by  her  husband  with  a  message  to  her  to  the 
effect  that  her  husband  was  smashed  up  in  an  accident,  and  was  lying 
at  The  Elms  at  Leytonstone  with  both  legs  broken,  and  that  she  was 
to  go  at  once  in  a  cab  with  two  pillows  to  fetch  him  home.  All  this  was 
false.  The  effect  of  the  statement  on  the  plaintiff  was  a  violent  shock 
to  her  nervous  sytem,  producing  vomiting  and  other  more  serious  and 
permanent  physical  consequences  at  one  time  threatening  her  reason, 
and  entailing  weeks  of  suffering  and  incapacity  to  her  as  well  as  ex- 
pense to  her  husband  for  medical  attendance.  These  consequences 
were  not  in  any  way  the  result  of  previous  ill-health  or  weakness  of 
constitution;  nor  was  there  any  evidence  of  predisposition  to  nervous 
shock  or  any  other  idiosyncrasy. 

In  addition  to  these  matters  of  substance  there  is  a  small  claim  for 
Is,  lOJ^.  for  the  cost  of  railway  fares  of  persons  sent  by  the  plaintiff 
to  Leytonstone  in  obedience  to  the  pretended  message.  As  to  this 
1«.  lOJ^.  expended  in  railway  fares  on  the  faith  of  the  defendant's 
statement,  I  think  the  case  is  clearly  within  the  decision  in  Pasley  v. 
Freeman,  (1789)  3  T.  R.  51.  The  statement  was  a  misrepresentation 
intended  to  be  acted  on  to  the  damage  of  the  plaintiff. 

The  real  question  is  as  to  the  lOOi.,  the  greatest  part  of  which  is 
given  as  compensation  for  the  female  plaintiff's  illness  and  suffering. 

So  Relle  v.  Western  Co.,  55  Tex.  308;  Stuart  v.  Western  Co.,  66  Tex.  580;  Western 
Co.  V.  Beringer,  84  Tex.  38. 

But  the  weight  pf  authority  is  against  such  recovery.  Chase  v.  Western  Co.,  44 
Fed.  554;  Crawson  v.  Western  Co.,  47  Fed.  544;  Tyler  v.  Western  Co^  64  Fed. 
634;  Western  Co.  v.  Wood,  57  Fed.  471;  Gahan  v,  Westfem  Co.,  59  Fed.  433; 
Stansell  v.  Western  Co.,  107  Fed.  668;  Western  Co.  v.  Sklar,  126  Fed.  295;  Rowan 
V.  Western  Co.,  149  Fed.  550:Blount  v.  Western  Co.,  126  Ala.  105:  Western  Co. 
V.  Krichbaum,  132  Ala.  535;  Western  Co.  v.  Blocker,  138  Ala.  484;  Western  Co.  v. 
Waters,  139  Ala.  652;  Peay  v.  Western  Co.,  64  Ark.  538  (but  changed  by  statute, 
Western  Co.  v,  McMullin,  98  Ark.  346);  Russell  v.  Western  Co.,  3  Dak.  315; 
Intemat.  Co.  v.  Saunders,  32  Fla.  434;  Chapman  v.  Western  Co.,  88  Ga.  763; 
Giddens  v.  Western  Co.,  Ill  Ga.  824;  Western  Co.  v.  Haltom,  71  111.  App.  63; 
Western  Co.  v.  Ferguson,  157  Ind.  64  (overruling  Reese  v.  Western  Co.,  123  Ind. 
294);  West  v.  Western  Co.,  39  Kan.  93  (semble);  Cole  v.  Gray,  70  Kan.  705; 
Francis  v.  Western  Co.,  58  Minn.  252;  Western  Co.  v,  Rogers,  68  Miss.  748; 
Duncan  v.  Western  Co.,  93  Miss.  500;  Connell  v.  Western  Co.,  116  Mo.  34;  New- 
man V.  Western  Co.,  54  Mo.  App.  434;  Curtin  v.  Western  Co.,  13  App.  Div.  253; 
Morton  v.  Western  Co.,  53  Ohio  St.  431;  Butner  v.  Western  Co.,  2  Okl.  234; 
Western  Co.  v.  Chouteau,  28  Okl.  664;  Lewis  v.  Western  Co.,  57  S.  C.  325  flaw 
changed  by  statute  in  1900,  Capers  v.  Western  Co^^71  S.  C.  29);  Connelly  v. 
Western  Co.,  100  Va.  51;  Corcoran  v.  Postal  Co.,  80  Wash.  570;  Davis  v.  Western 
Co.,  46  W.  Va.  48;  Summerfield  v.  Western  Co.,  87  Wis.  1;  Koerber  v.  Patek, 
123  Wis.  453,  464  (semble). 

^  Only  the  judgment  of  the  court  is  printed. 


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SECT,  n.]  WILKINSON  V.  DOWNTON  59 

It  was  argued  for  her  that  she  is  entitled  to  recover  this  as  being  dam- 
age caused  by  fraud,  and  therefore  within  the  doctrine  estabUshed  by 
Pasley  v.  Freeman,  (1789)  3  T.  R.  51,  and  Langridge  v.  Levy,  (1837) 
2  M.  A  W.  519.  I  am  not  sure  that  this  would  not  be  an  extension  of 
that  doctrine,  the  real  ground  of  which  appears  to  be  that  a  person 
who  makes  a  false  statement  intended  to  be  acted  on  must  make  good 
the  damage  naturally  resulting  from  its  being  acted  on.  Here  there  is 
no  injuria  of  that  Idnd.  I  think,  however,  that  the  verdict  may  be 
supported  upon  another  ground.  The  defendant  has,  as  I  assume  for 
the  moment,  wilfully  done  an  act  calculated  to  cause  physical  harm 
to  the  plaintiff  —  that  is  to  say,  to  infringe  her  legal  right  to  personal 
safety,  and  has  in  fact  thereby  caused  physical  harm  to  her.  That 
proposition  without  more  appears  to  me  to  state  a  good  cause  of 
action,  there  being  no  justification  alleged  for  the  act.  This  wilful 
injuria  is  in  law  maUcious,  although  no  malicious  purpose  to  cause  the 
harm  which  was  caused  nor  any  motive  of  spite  is  imputed  to  the 
defendant. 

It  remains  to  consider  whether  the  assumptions  involved  in  the  prop- 
osition are  made  out.  One  question  is  whether  the  defendant's  act 
was  so  plainly  calculated  to  produce  some  effect  of  the  kind  which  was 
produced  that  an  intention  to  produce  it  ought  to  be  imputed  to  the 
defendant,  regard  being  had  to  the  fact  that  the  effect  was  produced 
on  a  person  proved  to  be  in  an  ordinary  state  of  health  and  mind.  I 
think  that  it  was.  It  is  difficult  to  imagine  that  such  a  statement, 
made  suddenly  and  with  apparent  seriousness,  could  fail  to  produce 
grave  effects  under  the  circumstances  upon  any  but  an  exceptionally 
indifferent  person,  and  therefore  an  intention  to  produce  such  an  effect 
must  be  imputed,  and  it  is  no  answer  in  law  to  say  that  more  harm  was 
done  than  was  anticipated,  for  that  is  commonly  the  case  with  all 
wrongs.  The  other  question  is  whether  the  effect  was,  to  use  the 
ordinary  phrase,  too  remote  to  be  in  law  regarded  as  a  consequence 
for  which  the  defendant  is  answerable.  Apart  from  authority,  I 
should  give  the  same  answer  and  on  the  same  ground  as  the  last  ques- 
tion, and  say  that  it  was  not  too  remote.  Whether,  as  the  majority 
of  the  House  of  Lords  thought  in  Ljmch  v.  Knight,  (1861)  9.  H.  L.  C. 
577,  at  pp.  592,  596,  the  criterion  is  in  asking  what  would  be  the 
natural  effect  on  reasonable  persons,  or  whether,  as  Lord  Wensleydale 
thought  (9  H.  L-  C.  587,  at  p.  600),  the  possible  infirmities  of  human 
nature  ought  to  be  recognized,  it  seems  to  me  that  the  connection 
between  the  cause  and  the  effect  is  sufficiently  close  and  complete. 
It  is,  however,  necessary  to  consider  two  authorities  which  are  sup- 
posed to  have  laid  down  that  illness  through  mental  shock  is  a  too 
remote  or  unnatural  consequence  of  an  injuria  to  entitle  the  plaintiff 
to  recover  in  a  case  where  damage  is  a  necessary  part  of  the  cause  of 
action.  One  is  the  case  of  Victorian  Railways  Commissioners  v. 
Coultas,  13  App.  Cas.  222,  where  it  was  held  in  the  Privy  Coimcil 


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60  WILKINSON  V.  DOWNTON  [CHAP.  H. 

that  illness  which  was  the  effect  of  shock  caused  by  fright  was  too 
remote  a  consequence  of  a  negligent  act  which  caused  the  fright,  there 
being  no  physical  harm  immediately  caused.  That  decision  was 
treated  in  the  Court  of  Appeal  in  Pugh  v,  London,  Brighton  and  South 
Coast  Ry.  Co.,  [1896]  2  Q.  B.  248,  as  open  to  question.  It  is  inconsist- 
ent with  a  decision  in  the  Court  of  Appeal  in  Ireland:  Bell  v.  Great 
Northern  Ry.  Co.  of  Ireland,  (1890)  26  L.  R.  Ir.  428,  where  the  Irish 
Exchequer  Division  refused  to  follow  it;  and  it  has  been  disapproved 
in  the  Supreme  Court  of  New  York;  see  Pollock  on  Torts,  4th  ed. 
p.  47  (n).  Nor  is  it  altogether  in  point,  for  there  was  not  in  that  case 
any  element  of  wilful  wrong;  nor  perhaps  was  the  illness  so  direct  and 
natural  a  consequence  of  the  defendant's  conduct  as  in  this  case.  On 
these  groimds  it  seems  to  me  that  the  case  of  Victorian  Railways  Com- 
missioners V.  Coultas,  13  App.  Cas.  222,  is  not  an  authority  on  which 
this  case  ought  to  be  decided. 

A  more  serious  difficulty  is  the  decision  in  Allsop  v.  Allsop,  5  H.  & 
N.  634,  which  was  approved  by  the  House  of  Lords  in  Lynch  v. 
Knight,  9  H.  L.  C.  677.  In  that  case  it  was  held  by  Pollock,  C.  B., 
Martin,  Bramwell,  and  Wilde,  BB.,  that  illness  caused  by  a  slanderous 
imputation  of  imchastity  in  the  case  of  a  married  woman  did  not  con- 
stitute such  special  damage  as  would  sustain  an  action  for  such  a 
slander.  That  case,  however,  appears  to  have  been  decided  on  the 
groimd  that  in  all  the  innimxerable  actions  for  slander  there  were  no 
precedents  for  alleging  illness  to  be  sufficient  special  damage,  and  that 
it  would  be  of  evil  consequence  to  treat  it  as  sufficient,  because  such 
a  rule  might  lead  to  an  infinity  of  trumpery  or  groimdless  actions. 
Neither  of  these  reasons  is  applicable  to  the  present  case.  Nor  could 
such  a  rule  be  adopted  as  of  general  application  without  results  which 
it  would  be  difficult  or  impossible  to  defend.  Suppose  that  a  person 
is  in  a  precarious  and  dangerous  condition,  and  another  person  tells 
him  that  his  physician  has  said  that  he  has  but  a  day  to  live.  In  such 
a  case,  if  death  ensued  from  the  shock  caused  by  the  false  statement, 
I  cannot  doubt  that  at  this  day  the  case  might  be  one  of  criminal 
homicide,  or  that  if  a  serious  aggravation  of  illness  ensued  damages 
might  be  recovered.  I  think,  however,  that  it  must  be  admitted  that 
the  present  case  is  without  precedent.  Some  English  decisions  — 
such  as  Jones  v.  Boyce,  (1816)  1  Stark.  493;  Wilkins  v.  Day,  (1883)  12 
Q.  B.  D.  110;  Harris  v.  Mobbs,  (1878)  3  Ex.  D.  268  — are  cited  in 
Beven  on  Negligence  as  inconsistent  with  the  decision  in  Victorian 
Railways  Commissioners  v.  Coultas,  13  App.  Cas.  222.  But  I  think 
that  those  cases  are  to  be  explained  on  a  different  groimd,  namely, 
that  the  damage  which  immediately  resulted  from  the  act  of  the  pas- 
senger or  of  the  horse  was  really  the  result  not  of  that  act,  but  of  a 
fright  which  rendered  that  act  involimtary,  and  which  therefore  ought 
to  be  regarded  as  itself  the  direct  and  inunediate  cause  of  the  damage. 
In  Smith  v.  Johnson  &  Co.  (unreported),  decided  in  January  last, 


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SECT.  II.]  YATES  V.  SOUTH  KIRKBY  COLLIERIES  61 

Bruce,  J.,  and  I  held  that  where  a  man  was  killed  in  the  sight  of  the 
plaintiff  by  the  defendant's  negligence,  and  the  plaintiff  became  ill, 
not  from  the  shock  from  fear  of  harm  to  himself,  but  from  the  shock 
of  seeing  another  person  killed,  this  harm  was  too  remote  a  conse- 
quence of  the  negligence.  But  that  was  a  very  different  case  from  the 
present. 

There  must  be  judgment  for  the  plaintiff  for  lOOZ.  Is.  lOJ^. 

JvdgmenifoT  plaintiff.^ 


YATES  V.  SOUTH  KIRKBY  COLLIERIES 

In  the  Court  op  Appeal,  July  6,  1910. 

Reported  in  [1910]  2  King's  Bench,  538. 

Appeal  against  the  award  of  the  judge  of  the  coimty  court  of  Ponte- 
fract  sitting  as  arbitrator  imder  the  Workmen's  Compensation  Act, 
1906. 

The  question  raised  by  this  appeal  was  whether  a  nervous  shock 
received  by  a  workman  in  the  course  of  his  employment  was  an  "  ac- 
cident "  which  entitled  him  to  compensation  imder  the  Workmen's 
Compensation  Act,  1906.  The  facts  as  found  by  the  coimty  court 
judge  were  as  follows:  — 

In  October,  1909,  the  applicant,  —  a  collier,  forty-six  years  of  age, 
who  had  been  engaged  in  coal  mining  all  his  life,  and  for  twenty- 
seven  years  had  been  working  at  the  face  of  the  coal  in  the  pit  belong- 
ing to  the  respondents,  —  while  working  as  usual,  heard  a  shout  for 
help  from  the  next  working  place.  He  ran  aroimd  his  loose  end  at 
once  and  foimd  a  fellow  colUer  lying  full  length  on  the  ground,  having 
been  knocked  down  by  a  fallen  timber  prop  and  some  coal;  he  was 
bleeding  all  over  his  head  and  from  his  ears  and  eyes.  The  applicant 
picked  him  up  in  his  arms  and,  with  assistance,  carried  him  away;  he 
was  not  dead  at  the  time,  but  died  in  a  quarter  of  an  hour.  The  effect 
on  the  applicant  was  such  that  he  sustained  a  nervous  shock,  which 
incapacitated  him  from  working  at  the  coal  face;  he  returned  to  his 
work  on  the  Saturday,  and  at  the  order  of  the  imder-manager  on  the 
Monday  following,  but  on  neither  occasion  was  he  able  to  do  work, 

»  Hall  V.  Jackson,  24  Col.  App.  225;  Dunn  v.  Western  Co.,  2  Ga.'App.  845; 
Goddard  v.  Walters,  14  Ga.  App.  722  (semble);  Watson  v.  Dilts.  116  la.  249,  124 
la.  249;  Lonergan  v.  Small,  81  Kan.  48;  Nelson  v.  Crawford,  122  Mich.  466 
(semble);  Preiser  v.  Wielandt,  48  App.  Div.  569;  Buchanan  v.  Stout,  123  App.  Div. 
648  (semble);  Miller  v.  R.  R.  Co.,  78  Ohio  St.  309,  324  {semble);  Butler  v.  Western 
Co.,  62  S.  C.  222  (semble);  Western  Co.  v.  Watson,  82  Miss.  101  (semble);  Shella- 
barser  v.  Morris,  115  Mo.  App.  566;  Wilson  v,  St.  Louis  R.  Co.,  160  Mo.  App.  649; 
HilTr.  Kimball,  76  Tex.  210;  Davidson  v.  Lee,  (Tex.  Civ.  App.)  139  S.  W.  904; 
Jeppsen  v.  Jensen,  47  Utah  536  Accord. 

Threats  not  amounting  to  an  Assaxdl.  Threats  of  bodily  harm  sent  by  letter  and 
causing  illness  by  reason  of  apprehension  of  bodily  harm  are  grounds  for  an  action. 
Houston  V.  WooUey,  37  Mo.  App.  15;  Grimes  v.  Gates,  47  Vt.  594.  Compare  Ste- 
vens p.  Steadman,  140  Ga.  680;  Degenhardt  v.  Heller,  93  Wis.  662. 


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62  YATES  V.  SOUTH  KIRKBY  COLLIERIES  [CHAP.  U. 

and  after  describing  to  the  imder-manager  and  the  Government  in- 
spector on  the  Monday  the  details  of  what  happened  on  the  Saturday- 
he  left  the  pit;  he  then  consulted  his  doctor  and  has  been  imder  his 
care  since.  In  November  he  tried  again  to  work,  and  went  to  his  old 
place,  but  though  he  stayed  the  shift  he  was  unable  to  work,  and  his 
brother,  who  was  his  mate,  did  it  for  him.  In  January,  1910,  he  asked 
the  under-manager  for  a  by-work  job,  but  the  imder-manager  would 
not  give  him  one,  and  he  had  not  worked  since. 

Proceedings  for  compensation  having  been  taken,  the  coimty  court 
judge  found  as  a  fact  that  there  was  a  genuine  incapacity  to  work 
which  was  due  to  the  nervous  shock  which  he  sustained  in  October, 
1909,  when  it  clearly  was  his  duty  to  his  employers  to  go  to  the  as- 
sistance of  the  injured  colUer  who  shouted  for  help  from  the  next 
working  place,  and  that  his  doing  so  arose  both  "  in  course  of  "  and 
"  out  of  "  his  employment.  The  learned  coimty  court  judge  accord- 
ingly awarded  the  applicant  compensation  at  19s.  a  week  to  the  date 
of  the  award,  and  10s.  a  week  till  further  order. 

The  respondents  appealed.^ 

Fabwell,  L.  J.  I  am  of  the  same  opinion.  It  is  rightly  Conceded 
that  it  was  part  of  the  man's  duty  to  go  to  the  assistance  of  his  fel- 
low workman.  Therefore  there  is  no  question  that  the  events  arose 
"  out  of  and  in  the  course  of  the  -employment."  The  learned  coimty 
court  judge  has  found  as  a  fact  that  there  was  a  genuine  incapacity  to 
work,  which  was  due  to  the  nervous  shock  which  the  applicant  sus- 
tained in  October  last.  In  my  opinion  nervous  shock  due  to  accident 
which  causes  personal  incapacity  to  work  is  as  much  "  personal  in- 
jury by  accident  "  as  a  broken  leg,  for  the  reasons  already  expressed 
by  this  court  in  the  case  of  Eaves  v.  Blaenclydach  Colliery  Co.,  [1909] 
2  K.  B.  73.  In  truth  I  find  it  difficult,  when  the  medical  evidence  is 
that  as  a  fact  a  workman  is  suffering  from  a  known  complaint  arising 
from  nervous  shock,  to  draw  any  distinction  between  that  case  and  the 
case  of  a  broken  limb.  I  see  no  distinction  for  this  purpose  between 
the  case  of  the  guard  who  is  not  in  fact  physically  injured  by  an  acci- 
dent to  his  train,  but  who,  after  assisting  to  carry  away  the  wounded 
and  dead,  breaks  down  from  nervous  shock,  and  the  case  of  the  guard 
who  in  similar  circumstances  stumbles  over  some  of  the  debris  and 
breaks  his  leg.^  The  difficulty  is  to  prove  the  facts  so  as  to  avoid  the 
risk  of  malingering,  but  when  the  facts  have  been  proved,  the  injury 
causing  incapacity  to  work  arises  from  the  accident  in  the  one  case 
just  as  much  as  in  the  other.  I  am,  therefore,  of  opinion  that  the 
judgment  of  the  learned  coimty  court  judge  must  be  affirmed. 

*  The  opinion  of  Cozens-Hardy,  M.R.,  sustaining  the  award  is  omitted. 

*  "  On  principle,  the  distinction  between  cases  of  physical  impact  or  lesion  being 
necessary  as  a  ground  of  liability  for  damage  caused  seems  to  nave  nothing  in  its 
favour  —  always  on  the  footing  that  the  causal  connection  between  the  injury  and 
the  occurrence  is  established.  If  compensation  is  to  be  recovered  under  the  statute 
or  at  common  law  in  respect  of  an  occurrence  which  has  caused  dislocation  of  a 
limb,  on  what  principle  can  it  be  denied  if  the  same  occurrence  has  caused  unhing- 


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SECT.  III.]  VAUGHAN  V.  MENLOVE  63 

Kennedy,  L.  J.  I  am  of  the  saane  opinion.  It  is  beyond  question 
that  the  incapacity  of  the  applicant  has  arisen  in  the  course  of  and  out 
of  the  employment;  and  when  you  have  a  finding  of  fact  by  the  learned 
county  court  judge  that  there  has  been  a  nervous  shock,  and  that 
that  nervous  shock  has  produced  a  genuine  condition  of  neurasthenia, 
I  think  myself  the  recent  authorities  show  that  this  judgment  ought 
to  be  supported.  One  knows  perfectly  well  that  neurasthenia,  although 
there  may  be  no  outward  sign  if  you  merely  look  at  the  person,  is 
treated,  and  successfully  treated  in  some  cases  at  any  rate,  by  a  treat-' 
ment  of  the  body.  Directly  you  have  that  which  requires  treatment 
of  the  body,  it  means  that  a  portion  of  that  body  (visible  or  invisible 
does  not  matter)  is  in  a  state  of  ill-health,  and,  if  the  condition  of 
neurasthenia  produces  incapacity  to  work  which  has  been  brought 
about  by  something  in  the  nature  of  an  accident  which  arose  "  out  of 
and  in  the  course  of  the  emplojnnent,"  you  have  a  case  of  "  personal 
injury  by  accident  "  which  is  within  the  Act.       Appeal  dismissed. 


Section  III 
The  Staitoard  op  Cabe 

VAUGHAN  V.  MENLOVE 

In  the  Common  Pleas,  Januaby  23,  1837. 

Reported  in  3  Bingham's  New  CaseSf  468. 

The  declaration  alleged,  in  substance,  that  plaintiff  was  the  owner 
of  two  cottages;  that  defendant  owned  land  near  to  the  said  cottages; 
that  defendant  had  a  rick  or  stack  of  hay  near  the  boimdary  of  his 
land  which  was  liable  and  likely  to  ignite,  and  thereby  was  dangerous 
to  the  plaintiff's  cottages;  that  the  defendant,  well  knowing  the 
premises,  wrongfully  and  negUgently  kept  and  continued  the  rick  in 
the  aforesaid  dangerous  condition;  that  the  rick  did  ignite,  and  that 
plaintiff's  cottages  were  burned  by  fire  commimicated  from  the  rick 
or  from  certain  buildings  of  defendant's  which  were  set  on  fire  by 
flames  from  the  rick. 

Defendant  pleaded  the  general  issue;  and  also  several  special  pleas, 
denying  negligence. 

ing  of  the  mind  ?  The  personal  injury  in  the  latter  case  may  be  infinitely  graver 
than  in  the  fonner,  and  to  what  avail  —  in  the  incidence  of  justice,  or  the  principle 
of  law  —  is  it  to  say  that  there  is  a  distinction  between  things  physical  and 
mental  ?  This  is  the  broadest  difference  of  all,  and  it  carries  with  it  no  principle  of 
legal  distinction.  Indeed  it  may  be  suggested  that  the  proposition  that  injury  so 
produced  to  the  mind  is  unaccompanied  by  physical  affection  or  change  might 
Itself  be  met  by  modem  physiology  or  pathology  with  instant  challenge."  Lord 
Shaw  in  Coyle  v.  Watson,  [1915]  A.  C.  1,  14. 


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64  VAUGHAN  V.  MENLOVE  [CHAP.  II. 

At  the  trial  it  appeared  that  the  rick  in  question  had  been  made  by 
the  defendant  near  the  boundary  of  his  own  premises;  that  the  hay 
was  in  such  a  state  when  put  together,  as  to  give  rise  to  discussions 
on  the  probabiUty  of  fire;  that  though  there  were  conflicting  opinions 
on  the  subject,  yet  during  a  period  of  five  weeks  the  defendant  was 
repeatedly  warned  of  his  peril;  that  his  stock  was  insured;  and  that 
upon  one  occasion,  being  advised  to  take  the  rick  down  to  avoid  all 
danger,  he  said  "  he  would  chance  it."  He  made  an  apertm^  or  chim- 
'  ney  through  the  rick;  but  in  spite,  or  perhaps  in  consequence  of  this 
precaution,  the  rick  at  length  burst  into  flames  from  the  spontaneous 
heating  of  its  materials;  the  flames  communicated  to  the  defendant's 
bam  and  stables,  and  thence  to  the  plaintiff's  cottages,  which  were 
entirely  destroyed. 

Patteson,  J.,  before  whom  the  cause  was  tried,  told  the  jury  that 
the  question  for  them  to  consider  was,  whether  the  fire  had  been  occa- 
sioned by  gross  negUgence  on  the  part  of  the  defendant;  adding,  that 
he  was  bound  to  proceed  with  such  reasonable  caution  as  a  prudent 
man  would  have  exercised  imder  such  circumstances. 

A  verdict  having  been  found  for  the  plaintiff,  a  rule  nisi  for  a  new 
trial  was  obtained,  on  the  ground  that  the  jury  should  have  been  di- 
rected to  consider,  not  whether  the  defendant  had  been  guilty  of  a 
gross  negligence  with  reference  to  the  standard  of  ordinary  prudence, 
a  standard  too  uncertain  to  afford  any  criterion,  but  whether  he  had 
acted  bond  fide  to  the  best  of  his  judgment;  if  he  had,  he  ought  not 
to  be  responsible  for  the  misf ortime  of  not  possessing  the  highest  order 
of  intelligence.  The  action  under  such  circumstances  was  of  the  first 
impression.^ 

Tcdfourd,  Serjt.,  and  Whately,  showed  cause. 

The  pleas  having  expressly  raised  issues  on  the  negligence  of  the 
defendant,  the  learned  judge  could  not  do  otherwise  than  leave  that 
question  to  the  jury.  The  declaration  alleges  that  the  defendant 
knew  of  the  dangerous  state  of  the  rick,  and  yet  negligently  and  im- 
properly allowed  it  to  stand.  The  plea  of  not  guilty,  therefore,  puts 
in  issue  the  scienter,  it  being  of  the  substance  of  the  issue:  Thottias  v. 
Morgan,  2  Cr.  M.  &  R.  496.  And  the  action,  though  new  in  specie, 
is  founded  on  a  principle  fully  established,  that  a  man  must  so  use  his 
own  property  as  not  to  injure  that  of  others.  On  the  same  circuit  a 
defendant  was  sued  a  few  years  ago  for  burning  weeds  so  near  the 
extremity  of  his  own  land  as  to  set  fire  to  and  destroy  his  neighbors' 
wood.  The  plaintiff  recovered  damages,  and  no  motion  was  made  to 
set  aside  the  verdict.  Then,  there  were  no  means  of  estimating  the 
defendant's  negligence,  except  by  taking  as  a  standard  the  conduct 
of  a  man  of  ordinary  prudence:  that  has  been  the  rule  always  laid 
down,  and  there  is  no  other  that  would  not  be  open  to  much  greater 
uncertainties. 

1  Statement  abridged. 


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SECT.  III.]  VAUGHAN  V.  MENLOVE  65 

R.  V.  Richards,  in  support  of  the  rule. 

First,  there  was  no  duty  imposed  on  the  defendant,  as  there  is  on 
carriers  or  other  bailees,  under  an  implied  contract,  to  be  responsible 
for  the  exercise  of  any  given  degree  of  prudence:  the  defendant  had 
a  right  to  place  his  stack  as  near  to  the  extremity  of  his  own  land  as 
he  pleased,  Wyatt  v.  Harrison,  3  B.  &  Adol.  871:  imder  that  right, 
and  subject  to  no  contract,  he  can  only  be  called  on  to  act  bond  fide  to 
the  best  of  his  judgment;  if  he  has  done  that,  it  is  a  contradiction  in 
terms,  to  inquire  whether  or  not  he  has  been  guilty  of  gross  negligence. 
At  all  events  what  would  have  been  gross  negUgence  ought  to  be  esti- 
mated by  the  faculties  of  the  individual,  and  not  by  those  of  other 
men.  The  measure  of  prudence  varies  so  with  the  varying  faculties 
of  men,  that  it  is  inapossible  to  say  what  is  gross  negligence  with  refer- 
ence to  the  standard  of  what  is  called  ordinary  prudence.  In  Crook  v. 
Jadis,  5  B.  &  Adol.  910,  Patteson,  J.,  says,  "  I  never  could  imderstand 
what  is  meant  by  parties  taking  a  bill  under  circumstances  which 
ought  to  have  excited  the  suspicion  of  a  prudent  man;  "  and  Taunton, 
J.,  "  I  cannot  estimate  the  degree  of  care  which  a  prudent  man  should 
take."  .  .  . 

TiNDAL,  C.  J.  I  agree  that  this  is  a  case  primoe  impressionis;  but 
I  feel  no  difficulty  in  applying  to  it  the  piinciples  of  law  as  laid  down 
in  other  cases  of  a  similar  kind.  Undoubtedly  this  is  not  a  case  of 
contract,  such  as  a  bailment  or  the  like,  where  the  bailee  is  responsible 
in  consequence  of  the  remuneration  he  is  to  receive:  but  there  is  a 
rule  of  law  which  says  you  must  so  enjoy  your  own  property  as  not 
to  injure  that  of  another;  and  according  to  that  rule  the  defendant  is 
liable  for  the  consequence  of  his  own  neglect:  and  though  the  defend- 
ant did  not  himself  light  the  fire,  yet  mediately  he  is  as  much  the  cause 
of  it  as  if  he  had  hiaaself  put  a  candle  to  the  rick;  for  it  is  well  known 
that  hay  will  ferment  and  take  fire  if  it  be  not  carefully  stacked.  It 
has  been  decided  that  if  an  occupier  bums  weeds  so  near  the  boundary 
of  his  own  land  that  damage  ensues  to  the  property  of  his  neighbor,  he 
is  liable  to  an  action  for  the  amount  of  injury  done,  unless  the  accident 
were  occasioned  by  a  sudden  blast  which  he  could  not  foresee.  Tur- 
berville  v.  Stamp,  1  Salk.  13.  But  put  the  case  of  a  chemist  making 
experiments  with  ingredients,  singly  innocent,  but  when  combined 
liable  to  ignite;  if  he  leaves  them  together,  and  injury  is  thereby 
occasioned  to  the  property  of  his  neighbor,  can  any  one  doubt  that  an 
action  on  the  case  would  lie  ? 

It  is  contended,  however,  that  the  learned  judge  was  wrong  in  leav- 
ing this  to  the  jury  as  a  case  of  gross  negligence,  and  that  the  question 
of  negligence  was  so  mixed  up  with  reference  to  what  would  be  the 
conduct  of  a  man  of  ordinary  prudence  that  the  jury  might  have 
thought  the  latter  the  rule  by  which  they  were  to  decide;  that  such  a 
rule  would  be  too  uncertain  to  act  upon;  and  that  the  question  ought 
to  have  been  whether  the  defendant  had  acted  honestly  and  bond  fide 


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66  VAUGHAN  V.  MENLOVE  [CHAP.  II. 

to  the  best  of  his  own  judgment.  That,  however,  would  leave  so  vague 
a  line  as  to  afford  no  rule  at  all,  the  degree  of  judgment  belonging  to 
each  individual  being  infinitely  various:  ^d  though  it  has  been  iu*ged 
that  the  care  which  a  prudent  man  would  take,  is  not  an  intelligible 
proposition  as  a  rule  of  law,  yet  such  has  always  been  the  rule  adopted 
in  cases  of  bailment,  as  laid  down  in  Coggs  v.  Bernard,  2  Ld.  Raym. 
909.  Though  in  some  cases  a  greater  degree  of  care  is  exacted  than  in 
others,  yet  in  "  the  second  sort  of  bailment,  viz.,  cammodatum  or  lend- 
ing gratis,  the  borrower  is  boimd  to  the  strictest  care  and  diligence  to 
keep  the  goods  so  as  to  restore  them  back  again  to  the  lender;  because 
the  bailee  has  a  benefit  by  the  use  of  them,  so  as  if  the  baUee  be  guilty 
of  the  least  neglect  he  will  be  answerable;  as  if  a  man  should  lend 
another  a  horse  to  go  westward,  or  for  a  month;  if  the  bailee  put  this 
horse  in  his  stable,  and  he  were  stolen  from  thence,  the  baUee  ^aU  not 
be  answerable  for  him;  but  if  he  or  his  servant  leave  the  house  or 
stable  doors  open,  and  the  thieves  take  the  opportimity  of  that,  and 
steal  the  horse,  he  will  be  chargeable,  because  the  neglect  gave  the 
thieves  the  occasion  to  steal  the  horse."  The  care  taken  by  a  prudent 
man  has  always  been  the  rule  laid  down;  and  as  to  the  supposed  diffi- 
culty of  applying  it,  a  jury  has  always  been  able  to  say,  whether, 
taking  that  rule  as  their  guide,  there  has  been  negligence  on  the 
occasion  in  question. 

Instead,  therefore,  of  saying  that  the  Uability  for  negligence  should 
be  coextensive  with  the  judgment  of  each  individual,  which  would  be 
as  variable  as  the  length  of  the  foot  of  each  individual,  we  ought  rather 
to  adhere  to  the  rule,  which  requires  in  all  cases  a  regard  to  caution 
such  as  a  man  of  ordinary  prudence  would  observe.^  That  was  in  sub- 
stance the  criterion  presented  to  the  jury  in  this  case,  and  therefore 
the  present  rule  must  be  discharged. 

[Concurring  opinions  were  deUvered  by  Park,  and  Vaughan,  JJ. 
Gaselee,  J.  concurred  in  the  result.]  Rule  discharged. 

1  Metropolitan  II.  Co.  v.  Jackson,  3  App.  Cas.  193;  Hyman  v.  Nye,  6  Q.  B.  D. 
685;  Simkm  v.  London  R.  Co.,  21  Q.  B.  D.  453;  Smith  v.  Browne,  28  L.  R.  Ir.  1; 
Bizzell  V.  Booker,  16  Ark.  308:  Western  R.  Co.  v.  Vaughan,  113  Ga.  354;  Chicago 
R.  Co.  V.  Scott,  42  111.  132;  City  v.  Cook,  99  Ind.  10;  Needham  i;.  Louisville  R. 
Co.,  85  Ky.  423;  Merrill  v.  Bassett,  97  Me.  501;  Heinx  v.  Baltimore  R.  Co.,  113 
Md.  582;  Chenery  v.  Fitchburg  R.  Co.,  160  Mass.  211;  Brick  v.  Bosworth,  162 
Mass.  334;  Keown  v.  St.  Louis  R.  Co.,  141  Mo.  86;  Teepan  v.  Taylor,  141  Mo. 
App.  282;  Brown  v,  Merrimack  Bank,  67  N.  H.  549;  NashviUe  R.  Co.  i;.  Wade, 
127  Tenn.  154;  Coates  v.  Canaan,  51  Vt.  131;  Fowler  v.  Baltimore  R.  Co.,  18 
W.  Va.  579;  Schrunk  v.  St.  Joseph,  120  Wis.  223  Accord. 

"  We  do  not  understand  that  an  employer's  liability  for  the  negligent  act  of  his 
superintendent  can  be  measured  by  the  latter's  poise  of  temperament,  nor  that  the 
character  of  a  given  act  of  the  superintendent  in  respect  of  negligence  can  be  made 
to  depend  upon  his  excitability  or  the  reverse.  It  is  the  duty  of  a  superintendent 
to  do  what  an  ordinarily  carefiil  and  prudent  man  would  do  under  the  same  circimo- 
stances,  and  the  employer  is  liable  if  he  fail  to  do  this  and  injury  results  to  an 
employ^."     Bessemer  Land  Co.  v.  Campbell,  121  Ala.  50,  60. 

Also  it  is  erroneous  to  charge  the  jury  that  failure  to  exercise  the  care  of  "  an 
ordinary  man  imder  like  circumstances  "  or  of  "  a  person  under  similar  circum- 


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SECT.  III.]        BLYTH  V.  BIRMINGHAM  WATERWORKS  CO.  67 

BLYTH  V.  BIRMINGHAM  WATERWORKS  CO. 
In  the  Exchequer,  February  6,  1856. 
Reported  in  11  Exchequer ^  781. 

This  was  an  appeal  by  the  defendants  against  the  decision  of  the 
judge  of  the  County  Court  of  Birmingham.  The  case  was  tried  before 
a  jury,  and  a  verdict  found  for  the  plaintiff  for  the  amount  claimed  by 
the  particulars.  The  particulars  of  the  claim  alleged,  that  the  plaintiff 
sought  to  recover  for  damage  sustained  by  the  plaintiff  by  reason  of 
the  negligence  of  the  defendants  in  not  keeping  their  water-pipes  and 
the  apparatus  connected  therewith  in  proper  order. 

The  case  stated  that  the  defendants  were  incorporated  by  stat.  7 
Geo.  IV.,  c.  cix.,  for  the  purpose  of  supplying  Birmingham  with  water. 

By  the  84th  section  of  their  Act  it  was  enacted,  that  the  company 
should,  upon  the  laying  down  of  any  main-pipe  or  other  pipe  in  any 
street,  fix,  at  the  time  of  laying  down  such  pipe,  a  proper  and  suflScient 
fire-plug  in  each  such  street,  and  should  deliver  the  key  or  keys  of  such 
fire-plug  to  the  persons  having  the  care  of  the  engine-house  in  or  near 
to  the  said  street,  and  cause  another  key  to  be  himg  up  in  the  watch- 
house  in  or  near  to  the  said  street.  By  sec.  87,  pipes  were  to  be  eight- 
een inches  beneath  the  surface  of  the  soil.  By  the  89th  section,  the 
mains  were  at  aU  times  to  be  kept  charged  with  water.  The  defend- 
ants derived  no  profit  from  the  maintenance  of  the  plugs  distinct  from 
the  general  profits  of  the  whole  business,  but  such  maintenance  was 
one  of  the  conditions  imder  which  they  were  permitted  to  exercise  the 
privileges  given  by  the  Act.  The  main-pipe  opposite  the  house  of  the 
plaintiff  was  more  than  eighteen  inches  below  the  surface.  The  fire- 
plug was  constructed  according  to  the  best  known  system,  and  the 
materials  of  it  were  at  the  time  of  the  accident  sound  and  in  good 
order.    The  apparatus  connected  with  the  fire-plug  was  as  follows:  — 

The  lower  part  of  a  wooden  plug  was  inserted  in  a  neck,  which  pro- 
jected above  and  formed  part  of  the  main.  About  the  neck  there  was 
a  bed  of  brickwork  puddled  in  with  clay.  The  plug  was  also  enclosed 
in  a  cast  iron  tube,  which  was  placed  upon  and  fixed  to  the  brickwork. 
The  tube  was  closed  at  the  top  by  a  movable  iron  stopper  having  a 
hole  in  it  for  the  insertion  of  the  key,  by  which  the  plug  was  loosened 
when  occasion  required  it. 

The  plug  did  not  fit  tight  to  the  tube,  but  room  was  left  for  it  to 
move  freely.  This  space  was  necessarily  left  for  the  purpose  of  easily 
and  quickly  removing  the  wooden  plug  to  allow  the  water  to  flow.  On 
the  removal  of  the  wooden  plug  the  pressure  upon  the  main  forced  the 
water  up  through  the  neck  and  cap  to  the  surface  of  the  street. 

stances  "  or  "  just  such  as  one  of  you,  similarly  employed,  would  have  exercised 
under  like  circumstances  "  amoimts  to  negligence.  Austin  R.  Co.  v.  Beatty,  73 
Tex.  592;  St.  Louis  R.  Co.  v.  Finley,  79  Tex.  86;  Louisville  R.  Co.  v,  Gower,  85 
Temi.  465. 


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68  BLTTH  V.  BIRMINGHAM  WATERWORKS  CO.       [CHAP.  II. 

On  the  24th  of  February,  a  large  quantity  of  water,  escaping  from 
the  neck  of  the  main,  forced  its  way  through  the  ground  into  the  plain- 
tiff's house.  The  apparatus  had  been  laid  down  twenty-five  years, 
and  had  worked  well  during  that  time.  The  defendants'  engineer 
stated,  that  the  water  might  have  forced  its  way  through  the  brick- 
work round  the  neck  of  the  main,  and  that  the  accident  might  have 
been  caused  by  the  frost,  inasmuch  as  the  expansion  of  the  water 
would  force  up  the  plug  out  of  the  neck,  and  the  stopper  being  in- 
crusted  with  ice  would  not  suffer  the  plug  to  ascend.  One  of  the 
severest  frosts  on  record  set  in  on  the  15th  of  January,  1855,  and  con- 
tinued imtil  after  the  accident  in  question.  An  incrustation  of  ice  and 
snow  had  gathered  about  the  stopper,  and  in  the  street  all  round,  and 
also  for  some  inches  between  the  stopper  and  the  plug.  The  ice  had 
been  observed  on  the  surface  of  the  groimd  for  a  considerable  time 
before  the  accident.  A  short  time  after  the  accident,  the  company's 
turncock  removed  the  ice  from  the  stopper,  took  out  the  plug,  and 
replaced  it. 

The  judge  left  it  to  the  jury  to  consider  whether  the  company  had 
used  proper  care  to  prevent  the  accident.  He  thought,  that,  if  the 
defendants  had  taken  out  the  ice  adhering  to  the  plug,  the  accident 
would  not  have  happened,  and  left  it  to  the  jury  to  say  whether  they 
ought  to  have  removed  the  ice.  The  jury  found  a  verdict  for  the 
plaintiff  for  the  sum  claimed. 

Fieldj  for  the  appellant.  There  was  no  negligence  on  the  part  of  the 
defendants.  The  plug  was  pushed  out  by  the  frost,  which  was  one  of 
the  severest  ever  known. 

The  Court  then  called  on 

Kennedy y  for  the  respondent.  The  company  omitted  to  take  suffi- 
cient precautions.  The  fire-plug  is  placed  in  the  neck  of  the  main.  In 
ordinary  cases  the  plug  rises  and  lets  the  water  out;  but  here  there 
was  an  incrustation  round  the  stopper,  which  prevented  the  escape 
of  the  water.  This  might  have  been  easily  removed.  It  will  be  found, 
from  the  result  of  the  cases,  that  the  company  were  boimd  to  take 
every  possible  precaution.  The  fact  of  premises  being  fired  by  sparks 
from  an  engine  on  a  railway  is  evidence  of  negligence :  Piggott  v.  East- 
em  Counties  Railway  Company,  3  C.  B.  229  (E.  C.  L.  R.  vol.  54); 
Aldridge  v.  Great  Western  Railway  Company,  3  M..  &  Gr.  515  (Id. 
42),  4  Scott,  N.  R.  156, 1  Dowl.  n.  s.  247,  s.  c.  [Martin,  B.  I  held, 
in  a  case  tried  at  Liverpool,  in  1853,  that,  if  locomotives  are  sent 
through  the  coimtry  emitting  sparks,  the  persons  doing  so  incur  all 
the  responsibilities  of  insurers;  that  they  were  liable  for  all  the  con- 
sequences.^ I  invited  counsel  to  tender  a  bill  of  exceptions  to  that 
ruling.  Water  is  a  different  matter.]  It  is  the  defendants'  water, 
therefore  they  are  bound  to  see  that  no  injury  is  done  to  any  one  by 

»  "  See  Lambert  v.  Bessey,  T.  Ravm.  422;  Scott  v.  Shepherd,  3  Wils.  403. 
Probably  an  action  of  trespass  might  have  been  brought."     [Reporter's  note.] 


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SECT,  nij         BLYTH  V.  BIKMINGHAM  WATERWORKS  CO.  69 

it.  An  action  has  been  held  to  lie  for  so  negligently  constructing  a 
hayrick  at  the  extremity  of  the  owner's  land,  that,  by  reason  of  its 
spontaneous  ignition,  his  neighbor's  house  was  burnt  down :  Vaughan 
V.  Menlove,  3  Bing.  N.  C.  468  (E.  C.  L.  R.  vol.  32).  [Bramwell,  B. 
In  that  case  discussions  had  arisen  as  to  the  probability  of  fire,  and 
the  defendant  was  repeatedly  warned  of  the  danger,  and  said  he  would 
chance  it.]  He  referred  to  Wells  v.  Ody,  1  M.  &  W.  462.  [Alder- 
son,  B.  Is  it  an  accident  which  any  man  could  have  foreseen  ?]  A 
scientific  man  could  have  foreseen  it.  If  no  eye  could  have  seen  what 
was  going  on,  the  case  might  have  been  different;  but  the  company's 
servants  could  have  seen,  and  actually  did  see,  the  ice  which  had  col- 
lected about  the  plug.  It  is  of  the  last  importance,  that  these  plugs, 
which  are  fire-plugs,  should  be  kept  by  the  company  in  working  order. 
The  accident  cannot  be  considered  as  having  been  caused  by  the  act 
of  God:  Siordet  v.  Hall,  4  Bing.  607  (Id.  13). 

Alderson,  B.  I  am  of  opinion  that  there  was  no  evidence  to  be 
left  to  the  jury.  The  case  turns  upon  the  question,  whether  the  facts 
proved  show  that  the  defendants  were  guilty  of  negligence.  Negli- 
gence is  the  omission  to  do  something  which  a  reasonable  man,  guided 
upon  those  considerations  which  ordinarily  regulate  the  conduct  of 
human  affairs,  would  do,  or  doing  something  which  a  prudent  and 
reasonable  man  would  not  do.^  The  defendants  might  have  been 
liable  for  negligence,  if,  unintentionally,  they  omitted  to  do  that  which 
a  reasonable  person  would  have  done,  or  did  that  which  a  person  tak- 
ing reasonable  precautions  would  not  have  done.  A  reasonable  man 
would  act  with  reference  to  the  average  circumstances  of  the  tempera- 
ture in  ordinary  years.  The  defendants  had  provided  against  such 
frosts  as  experience  would  have  led  men,  acting  prudently,  to  provide 
against;  and  they  are  not  guilty  of  negligence,  because  their  precau- 
tions proved  insufficient  against  the  effects  of  the  extreme  severity  of 
the  frost  of  1855,  which  penetrated  to  a  greater  depth  than  any  which 
ordinarily  occurs  south  of  the  polar  regions.  Such  a  state  of  circum- 
stances constitutes  a  contingency  against  which  no  reasonable  man  can 
provide.  The  result  was  an  accident  for  which  the  defendants  cannot 
be  held  liable. 

Martin,  B.  I  think  that  the  direction  was  not  correct,  and  that 
there  was  no  evidence  for  the  jury.  The  defendants  are  not  respon- 
sible, unless  there  was  negligence  on  their  part.  To  hold  otherwise 
would  be  to  make  the  company  responsible  as  insurers. 

1  Nitro-Glycerinc  Case,  15  Wall.  624;  Thompson  v.  Chicago  R.  Co.,  189  Fed. 
723:  Fort  Smith  Co.  v.  Slover,  68  Ark.  168;  Richardson  v.  Kier,  34  Cal.  63:  Nolan 
V.  New  York  R.  Co.,  63  Conn.  461:  Wolf  Mfg.  Co.  v.  Wilson,  162  111.  9:  Cincin- 
nati  R.  Co.  v.  Peters.  80  Ind.  168;  Galloway  v.  Chicago  R.  Co.,  87  la.  468;  Schnei- 
der V.  Little,  184  Mich.  315;  Lauritaen  v.  Bridge  Co..  87  Minn.  618;  McGraw  v. 
Chicago  R.  Co.,  69  Neb.  397:  Roberts  v,  Boston  R.  Co.,  69  N.  H.  354;  Drake  v. 
Mount,  33  N.  J.  Law,  441 ;  Chicago  R.  Co.  v.  Watson,  36  Okl.  1 ;  Ahem  v.  Oregon 
Co.,  24  Or.  276;  Houston  R.  Co.  v,  Alexander,  103  Tex.  694;  Washington  v.  B^ti- 
more  R.  Co.,  17  W.  Va.  190  Accord. 


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70  YERKES  V.  NORTHERN  PACIFIC  B.  CO,  [CHAP,  U. 

Bramwell,  B.  The  Act  of  Parliament  directed  the  defendants  to 
lay  down  pipes,  with  plugs  in  them,  as  safety-valves,  to  prevent  the 
bursting  of  the  pipes.  The  plugs  were  properly  made,  and  of  proper 
material;  but  there  was  an  acciunulation  of  ice  about  this  plug,  which 
prevented  it  from  acting  properly.  The  defendants  were  not  bound 
to  keep  the  plugs  clear.  It  appears  to  me  that  the  plaintiff  was  under 
quite  as  much  obligation  to  remove  the  ice  and  snow  which  had  ac- 
cumulated, as  the  defendants.  However  that  may  be,  it  appears  to 
me  that  it  would  be  monstrous  to  hold  the  defendants  responsible 
because  they  did  not  foresee  and  prevent  an  accident,  the  cause  of 
which  was  so  obscure,  that  it  was  not  discovered  until  many  months 
after  the  accident  had  happened. 

Verdict  to  be  entered  for  the  defendants} 


YERKES  V.  NORTHERN  PACIFIC  R.  CO. 

Supreme  Court,  Wisconsin,  November  29,  1901. 

Reported  in  112  Wiaconain  ReporU,  184. 

DoDOE,  J.  .  .  .  Plaintiff  assigns  as  error  the  definition  of  the  due 
care  which  plaintiff  was  bound  to  exercise  to  avert  the  charge  of  con- 
tributory negligence,  viz.:  — 

"  The  plaintiff  cannot  recover  in  this  case  unless  you  find  that  he 
was  in  no  manner  guilty  of  any  want  of  ordinary  care,  or  such  care  as 
persons  of  ordinary  care  ordinarily  use,  which  contributed  to  his  said 
injuries."  * 

.  That  this  was  an  incorrect  and  misleading  definition  of  ''  ordinary 
care  "  has  been  declared  so  often  by  this  court  as  to  make  further  dis- 
cussion unnecessary.  The  rule  has  been  repeatedly  laid  down  that 
due  care  is  to  be  tested  by  the  surrounding  circimiistances,  and  that 
no  definition  is  complete  or  correct  which  does  not  embody  that  ele- 
ment.'   Ordinary  care  is  the  care  ordinarily  exercised  by  the  great 

1  Sharp  V.  Powell,  L.  R.  7.  C.  P.  253;  Pearson  i;.  Cox.  2  C.  P.  D.  369;  Gregg  v. 
Illinois  R.  Co.,  147  111.  650,  660;  Missouri  R.  Co.  v.  Columbia,  65  Kan.  390,  400; 
Sutphen  v.  Hedden,  67  N.  J.  Law,  324;  Crutchfield  v.  Richmond  R.  Co.,  76  N.  C. 
320;  Martin  v.  Highland  Park  Co.,  128  N.  C.  264;  Simpson  v.  Southern  R.  Co., 
154  N.  C.  51;  McCauley  i;.  Logan,  152  Pa.  St.  202;  Bradley  v.  Lake  Shore  R.  Co., 
238  Pa.  St.  315  ("  only  an  extreme  visionary  would  have  imagined  the  conse- 
quences which  followed  or  that  injunr  could  result  to  person  or  property  there- 
from ");  Consiuners  Brewing  Co.  v.  Doyle,  102  Va.  399;  Lippert  v.  Brewing  Co., 
141  Wis.  453  Accord. 

*  Only  that  part  of  the  opinion  which  relates  to  this  instruction  is  given. 

»  "  There  is  no  absolute  or  intrinsic  ne^gence;  it  is  always  relative  to  some  cir- 
cumstances of  time,  place,  or  person."  BramwelL  B.,  in  Degg  v.  Midland  R.  Co.,  1 
Hurlst.  &  N.  773,  781.  See  also  Bowen,  L.  J.,  in  Thomas  v.  Quartermaine,  18  Q.  B. 
D.  685,  694. 

Bizzell  V.  Booker,  16  Ark.  308;  Needham  v.  San  Francisco  R.  Co.,  37  Cal.  409; 
Diamond  Iron  Co.  v.  Giles,  7  Houst.  657;  Atlantic  R.  Co.  v.  Moore,  8  Ga.  App. 
185;  Chicago  R.  Co.  v.  Johnson,  103  111.  512:  Parks  v.  Yost,  93  Kan.  334;  Sheridan 
V,  Baltimore  R.  Co.,  101  Md.  50;  Kelly  v.  Michigan  R.  Co.,  65  Mich.  186;  De  Bolt 


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SECT,  ni.]  HILL  V.  GLENWOOD  71 

mass  of  mankind,  or  its  tjrpe,  the  ordinarily  prudent  person,  mider  the 
same  or  similar  circumstances,  and  the  omission  of  the  last  qualifica- 
tion, "  under  the  same  or  similar  circumstances,"  or  '*  imder  like  cir- 
cumstances," is  error.  Boelter  v.  Ross  L.  Ck).,  103  Wis.  324,  330; 
Dehsoy  v.  Milwaukee  E.  R.  &  L.  Co.,  110  Wis.  412;  Warden  v.  Miller, 
ante,  p.  67.  The  necessity  of  the  omitted  qualification  to  a  correct 
definition  of  due  care  is  especially  obvious  under  the  circumstances  of 
this  case.  What  would  be  the  care  of  an  ordinarily  prudent  person, 
standing  in  safety  upon  a  stationary  platform,  or  even  standing  upon 
the  perfect  and  level  footboard  of  a  moving  switch  engine,  would  not 
be  the  care  to  be  expected  of  one  attempting  to  perform  the  services 
of  a  yard  man  upon  a  bent,  declining,  and  defective  footboard  such 
as  here  presented.  The  attention  of  the  jury  was  not  called  by  this 
instruction  to  a  very  important  element  which  they  must  consider  in. 
order  to  decide  whether  the  plaintiff  was  or  was  not  guilty  of  con- 
tributory negUgence,  and  the  instruction  to  them  on  the  subject  was 
therefore  misleading  and  erroneous. 


HILL  V.  GLENWOOD 

SXTPBEME   COUBT,  loWA,  JULY   13,  1904. 
Reported  in  124  loioa  Reports,  479. 

Weaver,  J.^  The  plaintiff  claims  to  have  been  injured  upon  one  of 
the  public  walks  in  the  city  of  Glenwood,  and  that  such  injury  was 
occasioned  by  reason  of  the  negligence  of  the  city  in  the  maintenance 
of  the  walk  at  the  place  of  the  accident,  and  without  fault  on  his  own 
part  contributing  thereto.  From  verdict  and  judgment  in  his  favor 
for  $665,  the  city  appeals.  In  this  court  the  appellant  makes  no  claim 
that  the  city  was  not  negligent,  but  a  reversal  is  sought  on  other 
grounds. 


It  was  shown  without  dispute  that  plaintiff  had  been  blind  for  many 
years,  and  this  fact  is  the  basis  of  the  criticism  upon  the  charge  given 
to  the  jury.  In  the  third  paragraph  of  the  charge,  the  court,  defining 
negUgence,  said:  "  (3)  NegUgence  is  defined  to  be  the  want  of  ordi- 
nary care;  that  is,  such  care  as  an  ordinary  prudent  person  would 
exercise  imder  like  circumstances.    There  is  no  precise  defim'tion  of 

V.  Kansas  City  R.  Co.,  123  Mo.  496:  Garland  v.  Boston  R.  Co.,  76  N.  H.  556:  New 
Jersey  Exp.  Co.  v,  Nichols,  33  N.  J.  Law.  434;  McGuire  v.  Spence,  91  N.  Y.  303; 
Connell  v.  New  York  R.  Co.,  144  App.  Div.  664;  Anderson  v.  Atlantic  R.  Co.,  161 
N.  C.  462;  Elster  v.  Spring6eld,  49  Ohio  St.  82;  Frankford  Co.  v,  Philadelphia  R. 
Co.,  64  Pa.  St.  345;  Virginia  Power  Co.  v.  Smith,  117  Va.  418;  Morrison  v.  Power 
Co.,  75  W.  Va.  608;  Davis  v.  Chicago  R.  Co.,  58  Wis.  646  Acc<yrd. 

Hence  it  is  incorrect  to  define  ordinary  care  as  "  such  care  as  the  ordinary  per- 
son uses  in  the  transaction  of  the  ordinary  affairs  of  life."  Hennesey  v.  Chicago  R, 
Co.,  99  Wis.  109. 

*  Only  part  of  the  opinion  is  given. 


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72  HILL  V.  GLENWOOD  [CHAP.  !!• 

ordinary  care,  but  it  may  be  said  that  it  is  such  care  as  an  ordinarily 
prudent  person  would  exercise  imder  like  circumstances,  and  should 
be  proportioned  to  the  danger  and  peril  reasonably  to  be  apprehended 
from  a  lack  of  proper  prudence.  This  rule  appUes  aUke  to  both  parties 
to  this  action,  and  may  be  used  in  determining  whether  either  was 
negligent."  In  the  eighth  paragraph,  referring  to  the  plaintiff's  duty 
to  exercise  care  for  his  own  safety,  the  following  language  is  used: 
"  (8)  It  must  also  appear  from  the  evidence  that  the  plaintiff  did  not 
in  any  way  contribute  to  the  happening  of  the  accident  in  question  by 
any  negligence  on  his  part;  that  is,  by  his  own  want  of  ordinary  care. 
The  plaintiff,  on  his  part,  was  imder  obUgation  to  use  ordinary  care  to 
prevent  injury  when  passing  over  any  sidewalk;  and  if  he  failed  so  to 
do,  and  his  failing  in  any  way  contributed  to  the  happening  of  the 
accident  in  question,  then  he  cannot  recover  herein.  The  evidence 
shows  without  dispute  that  he  was  blind,  and  this  fact  should  be  con- 
sidered by  you  in  determining  what  ordinary  care  on  his  part  would 
require  when  he  was  attempting  to  pass  over  one  of  the  sidewalks  of 
this  city."  Counsel  for  appellant  do  not  deny  that  the  rules  here  laid 
down  would  be  a  correct  statement  of  the  law  of  negligence  and  con- 
tributory negligence  as  applied  to  the  ordinary  case  of  sidewalk  acci- 
dent, but  it  is  urged  that  the  conceded  fact  of  plaintiff's  blindness 
made  it  the  duty  of  the  court  to  say  to  the  jury  that  a  blind  person  who 
attempts  to  use  the  public  street  "  must  exercise  a  higher  degree  of 
care  and  caution  than  a  person  ordinarily  would  be  expected  or  re- 
quired to  use  had  he  full  possession  of  his  sense  of  sight."  We  cannot 
give  this  proposition  oiu-  assent.  It  is  too  well  established  to  require 
argument  or  citation  of  authority  that  the  care  which  the  city  is 
boimd  to  exercise  in  the  maintenance  of  its  streets  is  ordinary  and 
reasonable  care,  the  care  which  ordinarily  marks  the  conduct  of  a 
person  of  average  prudence  and  foresight.  So,  too,  it  is  equally  well 
settled  that  the  care  which  a  person  using  the  street  is  bound  to  exer- 
cise on  his  own  part  to  discover  danger  and  avoid  accident  and  injury 
is  of  precisely  the  same  character,  the  ordinary  and  reasonable  care  of 
a  person  of  average  prudence  and  foresight.  The.  streets  are  for  the 
use  of  the  general  public  without  discrimination;  for  the  weak,  the 
lame,  the  halt  and  the  blind,  as  well  as  for  those  possessing  perfect 
health,  strength,  and  vision.  The  law  casts  upon  one  no  greater 
burden  of  care  than  upon  the  other.  It  is  true,  however,  that  in  deter- 
mining what  is  reasonable  or  ordinary  care  we  must  look  to  the  cir- 
cumstances and  surroundings  of  each  particular  case.  As  said  by  us  in 
Graham  v.  Oxford,  105  Iowa,  708:  "  There  is  no  fixed  rule  for  deter- 
mining what  is  ordinary  care  appUcable  to  all  cases,  but  each  case 
must  be  determined  according  to  its  own  facts."  In  the  case  before 
us  the  plaintiff's  blindness  is  simply  one  of  the  facts  which  the  jury 
must  give  consideration,  in  finding  whether  he  did  or  did  not  act  with 
the  care  which  a  reasonably  prudent  man  would  ordinarily  exercise. 


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SECT,  in.]         KEITH  V,  WORCESTER  STREET  R.  CO,  73 

when  burdened  by  such  infirmity.  In  other  words,  the  measures 
which  a  traveler  upon  the  street  must  employ  for  his  own  protection 
depend  upon  the  nature  and  extent  of  the  pferil  to  which  he  knows,  or 
in  the  exercise  of  reasonable  prudence  ought  to  know,  he  is  exposed. 
The  greater  and  more  imminent  the  risk,  the  more  he  is  required  to 
look  out  for  and  guard  against  injury  to  himself;  but  the  care  thus 
exercised  is  neither  more  nor  less  than  ordinary  care — the  care  which 
men  of  ordinary  prudence  and  experience  may  reasonably  be  expected 
to  exercise  imder  like  circumstances.  See  cases  cited  in  21  Am.  & 
Eng.  Enc.  Law,  (2d  ed.)  465,  note  1.  In  the  case  at  bar  the  plaintiff 
was  rightfully  upon  the  street,  and  if  he  was  injured  by  reason  of  the 
negligence  of  the  city,  and  without  contributory  negligence  on  his 
part,  he  was  entitled  to  a  verdict.  In  determining  whether  he  did 
exercise  due  care  it  was  proper  for  the  jury,  as  we  have  already  indi- 
cated, to  consider  his  blindness,  and  in  view  of  that  condition,  and  all 
the  surrounding  facts  and  circumstances,  find  whether  he  exercised  or- 
dinary care  and  prudence.  If  he  did,  he  was  not  guilty  of  contributory 
negligence. 

This  view  of  the  law  seems  to  be  fairly  embodied  in  the  instructions 
to  which  exception  is  taken.  If  the  appellant  believed,  as  it  now 
argues,  that  the  charge  should  have  been  more  specific,  and  dwelt  with 
greater  emphasis  upon  the  fact  of  plaintiff's  blindness  as  an  element 
for  the  consideration  of  the  jury  in  finding  whether  he  exercised  rea- 
sonable care,  it  had  the  right  to  ask  an  instruction  framed  to  meet  its 
views  in  that  respect.  No  such  request  was  made,  and  the  omission 
of  the  court  to  so  amplify  the  charge  on  its  own  motion  was  not  error.* 


KEITH  V,  WORCESTER  STREET  R.  Co. 
Supreme  Judicial  Court,  Massachusetts,  November  26,  1907. 

Reported  in  196  Massachusetts  Reports ^  478. 

Two  Actions  op  Tort  for  personal  injuries  received  by  the  plain- 
tifif^s  intestate  caused  by  her  falling  when  stepping  across  street  rail- 
way rails  which  were  piled  by  the  defendant  street  railway  company 
on  the  highway  next  to  the  curbing,  and  were  allowed  by  the  street 
railway  company  and  the  defendant  town  to  remain  there,  and  which, 
it  was  aUeged,  constituted  an  obstruction  of  the  highway.^ 

The  accident  happened  in  the  daytime.  The  plaintiff's  mtestate 
was  near-sighted,  and  could  not  recognize  a  friend  at  a  distance  of 
more  than  ten  or  twelve  feet. 

»  Rosenthal  v.  Chicago  R.  Co.,  255  111.  552;  Indianapolis  Traction  Co.  v. 
Crawley,  61  Ind.  App.  357  (deaf  man);  OTlaherty  v.  Union  R.  Co.,  45  Mo.  70; 
Simms  v.  South  Carolina  R.  Co.,  27  S.  C.  268.  Accord. 

•  Statement  abridged.     Part  of  opinion  omitted. 


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74  KEITH  V.  WOHCEBTER  STREET  R.  CO.  [CHAP.  II. 

At  the  trial  in  the  Superior  Court,  defendants  requested  the  follow- 
ing instruction:  — 

*'  If  the  plaintiff's  intestate  had  defective  eyesight,  she  should  take 
greater  care  in  walking  the  street  than  one  of  good  eyesight;  and  if 
she  faUed  to  use  this  greater  degree  of  care,  the  verdict  must  be  for  the 
defendant." 

This  request  was  refused,  subject  to  exception. 

In  the  charge  to  the  jury,  the  presiding  judge  stated;  "  The  plain- 
tiff contends  and  has  got  to  show  by  a  fair  preponderance  of  the  evi- 
dence that  Mrs.  Keith  was  injured,  and  that  she  was  injured  while  she 
was  using  ...  a  degree  of  care  that  a  reasonably  prudent  and  care- 
ful person,  acting  prudently  and  carefully  at  the  time,  would  have 
exercised  and  should  have  exercised  in  your  judgment  imder  all  the 
circiunstances  then  surrounding  Mrs.  Keith.  That  means  not  only  ex- 
ternal circumstances,  that  means  not  only  the  way  in  which  the  rails 
were  placed,  the  location  of  the  car,  the  necessity  of  action  on  her 
part,  but  it  means  also  with  reference  to  her  personal  peculiarities  as 
they  were  shown  to  exist  upon  the  stand.  For  instance,  the  conduct 
of  a  perfectly  soimd  and  healthy  person  may  be  properly  regarded  as 
one  thing,  when  the  same  conduct  on  the  part  of  a  diseased  or  infirm 
person  might  be  regarded  as  something  very  different. 

"  What  might  be  in  yoiu-  judgment  perfectly  reasonable  and  proper 
and  careful  on  the  part  of  a  sound  person  might  be  regarded  fairly  by 
you  as  improper  and  careless  on  the  part  of  an  infirm  person. 

"  So,  in  this  case,  while  I  cannot  instruct  you  as  a  matter  of  law 
that  Mrs.  Keith,  if  you  find  her  to.  be  nearnsighted,  was  bound  to  use  a 
higher  degree  of  care  than  a  person  not  nearnsighted,  I  have  got  to 
leave  it  to  you  as  a  matter  of  fact  whether  a  near-sighted  person  would 
not,  in  order  to  be  careful,  have  to  exercise  a  higher  degree  of  care  than 
a  person  not  near-sighted.  In  other  words,  I  have  got  to  leave  it  to 
you  to  determine  whether  or  not  a  near-sighted  person  is  using  due 
care  if  he  or  she  imder  the  particular  circumstances  acts  exactly 
as  a  person  who  was  not  near-sighted  would  have  done.  In  other 
words,  it  is  a  matter  of  fact  for  you  to  determine  whether  Mrs. 
Keith  was  caUed  on  to  do  differently  from  a  person  in  full  possession 
of  eyesight  rather  than  as  a  matter  of  law  for  me  to  direct  you  in 
regard  to  it." 

The  jury  foimd  for  the  plaintiff  in  both  cases. 

RuGG,  J.  .  .  .  The  defendant  asked  the  court  to  rule  that  if  the 
person  injured  "  had  defective  eyesight,  she  should  take  greater  care 
in  walking  the  street  than  one  of  good  sight,  and  if  she  faUed  to  use 
this  greater  degree  of  care  the  verdict  must  be  for  the  defendant." 
This  request  properly  was  refused,  for  the  rea&on  that  it  directed  a 
verdict  upon  a  single  phase  of  the  testimony,  which  was  not  neces- 
sarily decisive.  In  this  respect  the  prayer  differs  vitally  from  the  one 
which  in  Winn  v.  Lowell,  1  Allen,  177,  this  court  held  should  have  been 


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SECT,  ni.]  KEITH  V.  WORCESTER  STREET  R.  CO.  76 

given.*  We  see  no  reason  for  modifying  the  decision  in  Winn  v.  Lowell, 
nor  is  it  inconsistent  with  subsequent  cases.  The  standard  of  care 
established  by  the  law  is  what  the  ordinarily  prudent  and  cautious 
person  would  do  to  protect  himself  under  given  conditions.  There  is 
no  higher  or  different  standard  for  one  who  is  aged,  feeble,  blind,  halt, 
deaf  or  otherwise  impaired  in  capacity,  than  for  one  in  perfect  phjnacal 
condition.  It  has  frequently,  in  recent  as  well  as  earlier  cases,  been 
said,  in  referring  to  one  under  some  impediment,  that  greater  caution 
or  increased  circumspection  may  be  required  in  view  of  these  adverse 
conditions.  See,  for  example,  Winn  v.  Lowell,  1  Allen,  177;  Hall  v. 
West  End  Street  Railway,  168  Mass.  461 ;  Hilbom  v.  Boston  &  North- 
em  Street  Railway,  191  Mass.  14;  Vecchioni  v.  New  York  Central  & 
Hudson  River  Railroad,  191  Mass.  9;  Hawes  r.  Boston  Elevated 
Railway,  192  Mass.  324;  Hamilton  v.  Boston  &  Northern  Street  Rail- 
way, 193  Mass.  324.  These  expressions  mean  nothing  more  than  that 
a  person  so  afflicted  must  put  forth  a  greater  degree  of  effort  than  one 
not  acting  under  any  disabilities,  in  order  to  attain  that  standard  of 
care  which  the  law  has  established  for  everybody.  When  looked  at 
from  one  standpoint,  it  is  incorrect  to  say  that  a  blind  person  must 
exercise  a  higher  degree  of  care  than  one  whose  sight  is  perfect,  but  in 
another  aspect,  a  blind  person  may  be  obliged  to  take  precautions, 
practice  vigilance  and  sharpen  other  senses,  unnecessary  for  one  of 
clear  vision,  in  order  to  attain  that  degree  of  care  which  the  law  re- 
quires. It  may  depend  in  some  slight  degree  upon  how  the  description 
of  duty  begins,  where  the  emphasis  may  fall  at  a  given  moment,  but 
when  the  whole  proposition  is  stated,  the  rights  of  the  parties  are  as 
fully  protected  in  the  one  way  as  in  the  other.  It  is  perhaps  more 
logical  to  say  that  the  plaintiff  is  bound  to  use  ordinary  care,  and  that 
in  passing  upon  what  ordinary  care  demands,  due  consideration  should 
be  given  to  blindness  or  other  infirmities.  This  was  the  course  piu*- 
sued  by  the  Superior  Court.  Neff  v.  Wellesley,  148  Mass.  487.  Smith 
t.  Wildes,  143  Mass.  556.  But  it  is  also  correct  to  say  that  in  the 
exercise  of  common  prudence  one  of  defective  eyesight  must  usually  as 
matter  of  general  knowledge  take  more  care  and  employ  keener 
watchfulness  in  walking  upon  the  streets  and  avoiding  obstructions 
than  the  same  person  with  good  eyesight,  in  order  to  reach  the  stand- 
ard established  by  the  law  for  all  persons  alike,  whether  they  be  weak 
or  strong,  soimd  or  deficient. 

Exceptions  overruled* 

I  The  instruction  which  the  court  held  should  have  been  given  in  Winn  v. 
Lowell  was:  **  If  the  plaintiff  was  a  person  of  poor  sight,  conunon  prudence  re- 
ouired  of  her  greater  care  in  walking  upon  the  streets,  and  avoiding  obstructions, 
tnan  is  required  of  persons  of  good  sight/' 

«  Compare  Fenneman  v,  Holden,  75  Md.  1;  Karl  v,  Juniata,  206  Pa..  St.  633: 
Thompson  v.  Salt  Lake  Co.,  16  Utah  28L 


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76  MEREDITH  V.  REED  ,  [CHAP.'  II. 

MEREDITH  v.  REED 
Supreme  Court,  Indiana,  May  Term,  1866. 

Reported  in  26  Indiana  Reports,  334. 

Gregory,  C.  J.  Meredith  sued  Reed  before  a  justice  for  an  injury 
done  by  a  stallion  of  the  latter  to  the  mare  of  the  former,  resulting  in 
the  death  of  the  mare.  Jury  trial,  verdict  for  the  defendant;  motion 
for  a  new  trial  overruled  and  judgment.  The  evidence  is  in  the  record. 
The  facts  are  substantially  as  follows:  In  May,  1865,  the  defendant 
owned  a  stallion,  which  had  previously  been  let  to  mares,  but  owing 
to  the  sickness  of  the  owner,  was  not  so  let  during  the  spring  of  1865.' 
He  was  a  gentle  stallion,  and  had  never  been  known  by  the  ownei:  to 
be  guilty  of  any  vicious  acts.  Not  being  in  use,  he  had  been  kept  up 
in  a  stable  for  four  or  five  months.  He  was  seciu'ed  in  the  stable  by  a 
strong  halter  and  chain,  fastened  through  an  iron  ring  in  the  manger. 
The  stable  door  was  seciu'ely  fastened  on  the  inside  by  a  strong  iron 
hasp,  passed  over  a  staple,  and  a  piece  of  chain  passed  two  or  three 
times  through  the  staple  over  the  hasp,  and  the  ends  firmly  tied  to- 
gether with  a  strong  cord.  It  was  also  fastened  on  the  outside  by  a 
piece  of  timber,  one  end  of  which  was  planted  in  the  groimd,  while 
the  other  rested  against  the  door.  The  horse  was  thus  secured  on  the 
day  and  night  the  injury  occurred.  The  gate  of  the  enclosure  sur- 
rounding the  stable  was  shut  and  fastened  as  usual.  About  11  o'clock 
that  night  the  horse  was  foimd  loose  on  the  highway,  and  did  the 
injiuy  complained  of.  Early  the  following  morning  the  outside  gate 
was  foimd  open;  the  stable  door  was  foimd  open,  with  the  log  prop 
lying  some  distance  to  one  side,  and  the  chain  which  had  been  passed 
through  the  staple  was  gone,  and  the  cord  with  which  it  had  been  tied 
was  found  cut  and  the  pieces  lying  on  the  floor. 

There  are  forty-two  alleged  errors  assigned,  but  many  of  them  are 
not,  in  our  opinion,  so  presented  as  to  entitle  them  to  consideration  in 
this  Court.  So  far  as  the  substantial  rights  of  the  appellant  are  in- 
volved, all  the  questions  properly  presented  resolve  themselves  into 
the  inquiry  as  to  the  nature  and  extent  of  the  Uability  of  the  owner  of 
a  domestic  animal  for  injuries  done  by  it  to  the  personal  property  of 
another,  disconnected  from  any  trespass  to  real  estate. 

It  is  contended,  on  the  one  hand,  that  ordinary  care  was  all  the  law 
required  of  the  defendant  in  this  case.  On  the  other  it  is  claimed  that 
the  utmost  care  was  necessary  to  free  him  from  liability.  Ordinary 
care  is  all  that  the  law  required  in  the  case  in  judgment.  What  is  ordi- 
nary care  in  some  cases  would  be  carelessness  in  others.  The  law  re- 
gards the  circumstances  surroimding  each  case,  and  the  nature  of  the 
animal  or  machinery  under  control.  Greater  care  is  required  to  be 
taken  of  a  stallion  than  of  a  mare;  so  in  the  management  of  a  steam- 
engine,  greater  care  is  necessary  than  in  the  use  of  a  plow.    Yet  it  is 


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SECT.  III.]     DENVER  ELECTRIC  COMPANY  V.  SIMPSON  77 

all  ordinary  care;  such  care  as  a  prudent,  careful  man  would  take 
under  like  circumstances.  The  degree  of  care  is  alwa3rs  in  proportion 
to  the  danger  to  be  apprehended.  The  case  at  bar  was  properly  sent  to 
the  jury,  and  the  verdict  is  fully  sustained  by  the  evidence. 

The  judgment  is  affirmed,  with  costs. 


DENVER  ELECTRIC  COMPANY  v.  SIMPSON 

Supreme  Court,  Colorado,  April  Term,  1895. 

Reported  in  21  Colorado  Reports,  371. 

Action  for  damage  caused  to  plaintiff,  while  passing  along  a  public 
alley,  by  his  coming  in  contact  with  one  of  defendants'  wires  heavily 
charged  with  electricity,  which  had  become  detached  from  its  over- 
head fastening,  and  was  hanging  down  to  within  about  two  feet  of  the 
ground.  At  the  trial  there  was  some  evidence  tending  to  show  that 
the  position  of  the  wire  was  due  to  the  negUgence  of  the  defendants. 
Verdict  for  plaintiff,  and  judgment  thereon.  Defendant  appealed; 
alleging  as  one  groimd  the  giving  of  certam  instructions  as  to  tie  care 
required  by  defendant.    Those  instructions  are  stated  in  the  opinion.^ 

Campbell,  J.  .  .  .  This  court  does  not  recognize  any  degrees  of 
negligence,  such  as  slight  or  gross,  and  logically  it  ought  not  to  recog- 
nize any  degrees  in  its  antithesis,  care.*  The  court  instructed  the  jury 
in  this  case  that  the  defendant  was  not  an  insurer  of  the  safety  of 
plaintiff,  but  that  in  constructing  its  line  and  maintaining  the  same 
in  repair,  it  was  held  to  the  utmost  degree  of  care  and  diligence;  that 
in  this  respect  it  is  bound  to  the  highest  degree  of  care,  skill,  and  dili- 
gence in  the  construction  and  maintenance  of  its  lines  of  wire  and 
other  appurtenances,  and  in  carrying  on  its  business,  so  as  to  make 
the  same  safe  against  accidents  so  far  as  such  safety  can,  by  the  use 
of  such  care  and  diligence,  be  secured.  If  it  observed  such  degree  of 
care,  it  was  not  liable;  if  it  failed  therein,  it  was  liable  for  injuries 
caused  thereby. 

We  think  the  court  was  imfortunate  in  attempting  to  draw  any  dis- 
tinctions in  the  degrees  of  care  or  negUgence.  It  would  have  been 
safer  and  the  better  practice  to  instruct  the  jury,  —  which  ought  here- 

^  Statement  abridged.  Only  so  much  of  the  opinion  is  given  as  relates  to  a  single 
point. 

*  Compare  Wilson  v.  Brett,  11  M.  &  W.  113;  Austin  v.  Manchester  R.  Co.,  10 
C.  B.  454;  Grill  v.  General  Collier  Co.,  L.  R.  1  C.  P.  600;  Steamboat  New  World 
V,  King,  16  How.  469;  Purple  v.  Union  R.  Co..  114  Fed.  123:  Oregon  Co.  v.  Roe, 
176  Fed.  715;  Stringer  v,  Alabama  R.  Co.,  99  Ala.  397;  Louisville  R.  Co.  v. 
Shanks,  94  Ind.  598;  Denny  v.  Chicago  R.  Co.,  150  la.  460;  Raymond  v.  Portland 
R.  Co.  100  Me.  529;  McPheeters  v.  Hannibal  R.  Co..  45  Mo.  22;  Reed  v.  Tele- 
paph  Co.,  135  Mo.  661 ;  Village  v,  HoUiday,  50  Neb.  229;  Perkins  v.  New  York  R. 
Co.,  24  N.  Y.  196:  McAdoo  v.  Richmond  R.  Co.,  105  N.  C.  140;  Fitzgerald  v. 
Grand  Trunk  R.  CSo.,  4  Ont.  App.  601  Accord. 

In  Wilson  v.  Brett,  aupraf  Kolfe,  B.,  said:  "  I  could  see  no  difference  between 
ne^igence  and  gross  negligence  —  ...  it  was  the  same  thing  with  the  addition 
of  a  vituperative  epithet.'^ 


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78  DENVEK  ELECTRIC  COMPANY  V.  SIMPSON      [CHAP.  II, 

after  to  be  observed,  —  even  in  cases  like  the  one  before  us,  that  the 
defendant  was  bound  to  exercise  that  reasonable  care  and  caution 
which  would  be  exercised  by  a  reasonably  prudent  and  cautious  person 
under  the  same  or  similar  circumstances.  In  addition  to  this,  the  jury 
should  have  been  instructed  that  the  care  increases  as  the  danger  does, 
and  that  where  the  business  in  question  is  attended  with  great  peril 
to  the  public,  the  care  to  be  exercised  by  the  person  conducting  the 
business  is  commensurate  with  the  increased  danger.  But,  in  effect, 
this  is  what  the  court  did.  Under  the  facts  of  the  case,  the  law  re- 
quired of  the  defendant  conducting,  as  it  did,  a  business  so  dangerous 
to  the  public,  the  highest  degree  of  care  which  skill  and  foresight  can 
attain  consistent  with  the  practical  conduct  of  its  business  under  the 
known  methods  and  the  present  state  of  the  particular  art.  This  is 
the  measure  of  the  duty  owed  by  a  common  carrier  to  a  passenger  for 
hire.  Thompson's  Carriers  of  Passengers,  p.  208,  and  cases  cited. 
Not  for  the  same  reason,  or  because  the  doctrine  r^ts  upon  the  same 
principle,  but  with  even  greater  force  should  this  rule  apply  to  a  per- 
son or  corporation  engaged  in  the  equally,  if  not  more,  dangerous  busi- 
ness of  distributing  electricity  throughout  a  city  by  means  of  wires 
strung  over  the  pubUc  alle3rs  and  streets,  in  so  far  as  concerned  its 
duty  to  the  travelling  public. 

In  those  courts  where  degrees  of  negligence  are  not  coimtenanced, 
nevertheless,  in  cases  where  the  duty  of  a  common  carrier  of  pas- 
sengers is  laid  down,  the  jury  are  told  that  carriers  are  bound  to  the 
utmost  degree  of  care  which  human  foresight  can  attain.  This  is  upon 
the  theory  that  reasonable  or  ordinary  care  in  a  case  of  that  kind  is  the 
highest  care  which  human  ingenuity  can  practically  exercise,  and 
that,  as  a  matter  of  law,  courts  will  hold  every  reasonably  prudent  and 
careful  man  to  the  exercise  of  the  utmost  care  and  diligence  in  protect- 
ing the  public  from  the  dangers  necessarily  incident  to  the  carrying 
on  of  a  hazardous  business. 

Where  the  facts  of  a  case  natmally  lead  equally  intelligent  persons 
honestly  to  entertain  different  views  as  to  the  degree  of  care  resting 
upon  a  defendant,  the  court  ought  not  to  lay  down  a  rule  prescribing 
any  particular  or  specific  degree  in  that  case.  But  where  all  minds 
concur  —  as  they  must  in  a  case  like  the  one  we  are  now  considering 
—  in  regarding  the  carrying  on  of  a  business  as  fraught  with  peril 
to  the  public  inherent  in  the  nature  of  the  business  itself,  the  court 
makes  no  mistake  in  defining  the  duty  of  those  conducting  it  as  the 
exercise  of  the  utmost  care.  It  was,  therefore,  not  prejudicial  error 
for  the  court  to  tell  the  jury  in  this  case  what  the  law  requires  of  the 
defendant,  viz.,  the  highest  degree  of  care  in  conducting  its  business. 


Judgment  affirmed} 

1  Maryland  R.  Co.  v.  Tucker,  115  Md.  43;  Gates  v,  HaU,  171  N.  C.  360;  Lundy 
Southern  Tel.  Co.,  90  S.  C.  25  Accord. 


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8BCT.  lU.]       LAKE  £KI£  h  WESTERN  R.  CO.  V.  FORD  79 

LAKE  ERIE  &  WESTERN  R.  CO.  v.  FORD 

SXTPBEMB  COUBT,  INDIANA,  OCTOBEB  23,  1906. 

Reported  in  167  Indiana  Beporta,  205. 

GiLLETT,  J.  Complaint  by  appellee  to  recover  damages  for  loss  of 
property  by  fire,  by  reason  of  the  alleged  negligence  of  appellant. 
There  was  a  verdict  and  judgment  in  favor  of  appellee.^ 

Appellant  complains  of  appellee's  instructions  five  and  six,  which 
were  given  by  the  court  in  the  order  indicated  by  their  numbers.  They 
are  as  follows:  ''  (5)  It  is  the  duty  of  a  railroad  to  use  all  reasonable 
precaution  in  running  and  operating  its  trains,  and  in  providing  its 
engines  with  proper  spark-arresters,  so  as  to  prevent  injury  to  the 
property  of  others  by  sparks  or  fire  emitted  or  thrown  therefrom. 
(6)  If  you  believe  from  all  of  the  evidence  and  circumstances  in  the 
case  that  at  the  time  and  prior  to  the  destruction  of  the  property  of 
the  plaintiff,  as  alleged  in  his  complaint,  there  were  a  number  of 
wooden  buildings  and  structures  standing  on  either  side  of  the  defend- 
ant's track  and  in  close  proximity  thereto,  including  the  bam  or  stable 
of  said  Melissa  McFall  in  the  town  of  Hobbs,  and  at  such  time  it  was, 
and  for  some  time  prior  thereto  it  had  been,  unusually  dry,  thereby 

See  various  forms  of  stating  this  general  doctrine  in  2  Hutchinson  on  Carriers, 
(3d.  ed.)  f  i  895,  896:  4  EUiott  on  Railroads  (1st  ed.)  §  1585;  1  Shearman  A  Red- 
field  on  Ne^igenoe  (6th  ed.)  §  51. 

In  Wharton  on  NegliflBnoe  (1st  ed.)  i\  636.  637,  the  author  says  that  the  dili- 
gence should  be  "  that  mioh  a  good  earner  of  the  particular  grade  is  accustomed 
to  exert;  "  i.  e.,  "  the  diligence  and  skill  which  a  good  business  man  in  his  specialty 
is  accustomed  to  use  under  similar  circimistances.'' 

For  a  criticism  of  Wharton's  statement,  see  1  S.  A  R.  Ne^^.  (6th  ed.)  {{  43-50. 
And  compare  2  Hutchinson  on  Carriers  (3d  ed.)  {  897,  note  13. 

"  It  is  reasonable  care  imder  the  existing  circumstances  that  one  person  has  the 
right  to  require  oi  another:  and  that  degree  of  care  becomes  incrrased  with  any 
increase  of  the  apparent  danger  involved  in  its  absence  or  with  the  increased 
power  of  control  of  one  of  the  parties  whose  conduct  is  in  question.  ...  A  com-, 
mon  carrier  of  passengers  eith^  by  raO  or  by  water  has  so  complete  a  control  and 
the  consequences  of  negligence  on  his  part  may  be  so  serious  that  he  is  justly  held 
to  a  very  high  degree  of  care  for  their  safety:  and  accordingly  it  has  bera  often 
said,  both  in  this  and  in  other  jurisdictions,  that  he  is  held  to  the  exercise  of  the 
highest  degree  of  care.  But  as  was  pointed  out  in  Dodge  v,  Boston  A  Bangor 
Steamshm  Co.,  148  Mass.  207, 217, 218,  this  phrase  and  similar  words  which  have 
been  used  to  convey  the  same  idea  mean  simply  that  the  carrier  is  bound  to  use  the 
utmost  care  consistent  with  the  nature  of  his  undertsJcing  and  with  a  due  refl»rd 
tor  all  other  matters  that  ou^t  to  be  considered  in  conducting  the  business.  This 
conductor  was  not  boimd  absolutely  to  exercise  the  highest  degpree  of  care  in 
running  his  car,  but  onlv  the  hishest  degree  of  care  which  was  consistent  with  the 
practiced  performance  of  all  his  duties  in  seeing  that  the  car  was  run  safety  without 
unreasonable  delays,  and  so  as  to  provide  tor  the  safety  and  convenience  and 
properiy  rapid  transit  of  his  passengers.  What  was  required  oi  him  was  the  hi^eet 
degree  of  care  consistent  with  the  practical  manaoement  and  operation  of  his  car 
for  the  carrutge  of  passengers, '  or  in  other  words,  the  requirement  [was]  reasonable 
care  according  to  the  nature  of  the  contract '  with  the  passengers.''  Sheldon,  J.^ 
in  Gardner  t;.  Boston  R.  Co.,  204  Mass.  213,  216.  Compare  Campbell,  J.,  in 
Michigan  R.  Co.  v.  Coleman,  28  Mich.  440,  449. 

^  Cmly  so  much  of  the  case  is  given  as  relates  to  a  single  point. 


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80  LAKE  ERIE  &  WESTERN  R.  CO.  V.  FORD        [CHAP.  II. 

rendering  such  wood  buildings  and  structures,  including  the  bam  or 
stable  of  said  Melissa  McFall,  and  also  the  property  of  the  plaintiflf 
herein,  unusually  dry,  injaammable,  and  easily  set  on  fire  by  sparks 
and  coals  of  fire  emitted  from  defendant's  engines  in  passing  through 
said  town,  and  that  there  was  also  at  the  time,  and  for  several  hours 
prior  thereto  had  been,  a  strong  wind  blowing  continuously  across  the 
defendant's  track,  in  the  direction  of  the  bam  or  stable  of  said  Melissa 
McFall,  and  the  wooden  buildings  and  structures  near  the  defendant's 
track,  including  the  property  of  the  plaintiff  herein,  which  greatly  and 
imusually  increased  the  danger  and  risk  of  setting  fire  to  such  buildings 
by  sparks  and  coals  of  fire  emitted  or  thrown  from  its  engine  in  pass- 
ing through  said  town,  over  ordinary  times  and  conditions,  and  all 
of  which  facts  and  conditions  the  defendant  knew  at  the  time,  the  de- 
fendant, \mder  such  circmnstances,  would  be  required  to  use  a  greater 
degree  of  care  in  operating  and  running  its  engines  through  said  town 
to  prevent  injiuy  to  such  buildings  or  property  by  sparks  or  coals  of 
fire  emitted  or  thrown  from  its  engine,  than  it  would  at  ordinary  times 
and  under  ordinary  conditions." 

Assuming,  without  deciding,  that  it  was  not  error  for  the  court,  in 
its  fifth  instruction,  to  use  the  term  "  reasonable  precaution,"  instead 
of  the  preferable  one,  "  ordinary  care,"  ^  and  assuming  further,  since 
the  care  that  the  company  was  required  to  exercise  was,  so  far  as  the 
element  of  law  was  concerned,  to  be  measured  by  a  fixed  standard, 
which  was  to  be  fully  complied  with  (Wharton,  NegUgence  [2d  ed.], 
§  46),  that  it  was  proper  to  use  the  expression  "  all  reasonable  precau- 
tion," the  question  arises  whether  it  is  not  likely  that  the  jury  was 
misled  by  the  charge  in  the  next  instruction  that  in  the  circumstances 
therein  hypothetically  stated  "  a  greater  degree  of  care  "  was  required 
than  in  ordinary  conditions.  The  sixth  instruction  would  have  been 
proper,  had  the  court  charged,  after  stating  to  the  jury  hypothetically 
the  conditions  which  existed,  leaving  it  to  them  to  determine  whether 
the  danger  was  increased,  that,  in  the  event  they  so  foimd,  it  was  their 
duty,  in  determining  whether  reasonable  or  ordinary  care  had  been 
exercised,  to  consider  the  increased  danger  of  fire,  yet  we  cannot  say 
that  this  was  the  fair  meaning  of  the  words  in  which  said  instruction 
was  couched. 

There  has  been  much  discussion  in  thfe  books  concerning  the  cor- 
rectness of  the  old  doctrine  as  to  degrees  of  negUgence.  New  York 
Central  R.  Co.  v,  Lockwood,  (1873)  17  Wall.  357,  21  L.  Ed.  627 
Steamboat  New  World  v.  King,  (1853)  16  How.  469,  14  L.  Ed.  1019 
Ohio,  etc.,  R.  Co.  v.  Selby,  (1874)  47  Ind.  471,  17  Am.  Rep.  719 
Pennsylvania  Co.  v.  Sinclair,  (1878)  62  Ind.  301,  30  Am.  Rep.  185 
Wharton,  Negligence  (2d  ed.),  §  44;  6  Albany  L.  J.  313;  2  Ames  & 

*  "Due  care,"  "reasonable  care,"  and  "ordinary  care"  are  synonjrmous  terms. 
Neal  V.  Gillett.  23  Conn.  437;  Baltimore  R.  Co.  t;.  Faith,  175  lU.  58;  Raymond  v, 
Portland  R.  Co.,  100  Me.  529;  Durant  v.  Palmer,  29  N.  J.  Law,  544. 


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SECT.  III.]       LAKE  ERIE  &  WESTERN  R.  CO.  V.  FORD  81 

Smith,  Cases  on  Torts,  143;  21  Am.  and  Eng.  Ency.  Law  (2d  ed.), 
459,  and  cases  cited.  While  we  apprehend  that  the  adverse  opinions 
which  have  been  expressed  concerning  such  doctrine  were  not  intended 
to  be  understood  as  miUtating  against  the  view  that  the  legal  standard 
of  care  is  not  the  same  in  all  relations,  or  to  discoimtenance  the  prac- 
tice of  charging  the  jury  in  terms  that  indicate  the  extent  of  care 
required,  as  great,  orcUnary,  or  slight  (1  Shearman  &  Redfield,  NegU- 
gence  [5th  ed.],  §  47) ,  yet  the  point  which  we  wish  to  enforce  now  is  that 
in  all  cases  negligence  consists  simply  in  a  failure  to  measure  up  to  the 
legal  standard  of  care.  It  was  said  by  Willes,  J.,  in  Grill  v.  General 
Iron  Screw,  etc.,  Co.,  (1866)  L.  R.  1  C.  P.  600,  611:  "  Confusion  has 
arisen  from  regarding  negUgence  as  a  positive  instead  of  a  negative 
word.  It  is  really  the  absence  of  such  care  as  it  was  the  duty  of  the 
defendant  to  use." 

Here  we  admittedly  have  a  case  in  which  it  was  the  duty  of  the 
company  to  exercise  ordinary  care,  but  what  does  an  instruction  mean 
that  informs  the  jury  that  in  certain  circumstances  a  greater  degree 
of  care  is  required,  when  it  has  for  a  background  an  instruction,  which 
is  appUcable  to  all  circumstances,  that  all  reasonable  precaution  must 
be  used  ?  We  think  that  in  such  a  case  the  jury  would  understand  that 
more  than  ordinary  care  was  requued,  and  it  is  not  improbable  that 
the  effect  of  giving  such  an  instruction,  following  an  instruction  like 
5,  would  be  to  lead  the  jury  to  infer  that  the  defendant's  duty  was 
raised  by  the  circumstances  recited  to  a  pitch  of  intensity  that  could 
not  reasonably  have  been  attained. 

It  was  said  by  this  court  in  Meredith  t^.  Reed,  (1866)  26  Ind.  334, 
337:  "  What  is  ordinaiy  care  in  some  cases,  would  be  carelessness  in 
others.  The  law  regards  the  circimistances  surrounding  each  case,  and 
the  nature  of  the  animal  or  machinery  under  control.  Greater  care  is 
required  to  be  taken  of  a  stallion  than  of  a  mare;  so  in  the  manage- 
ment of  a  steam  engine,  greater  care  is  necessary  than  in  the  use  of  a 
plough.  Yet  it  is  all  ordinary  care."  The  legal  standard  of  care  re- 
quired in  a  particular  relationship  is  always  the  same,  although  the 
amount  of  care  thus  required  depends  upon  the  particular  circum- 
stances. Cleveland,  etc.,  R.  Co.  v.  Terry,  (1858)  8  Ohio  St.  570; 
Weiser  v.  Broadway,  etc.,  St.  R.  Co.,  (1895)  6  Ohio  Dec.  215.  As  has 
been  observed  by  a  modem  writer:  "  This  standard  may  vary  in  fact, 
but  not  in  law."  2  Jaggard,  Torts,  p.  819.  In  an  article  in  3  [6]  Al- 
bany, L.  J.  314,  it  is  said:  "  The  ratio,  proportion  or  correspondence 
of  diligence  to  ch-cumstances,  of  care  to  surroimdings,  is  fixed  and 
identical.  And,  in  determining  a  question  of  diligence  or  negligence  in 
either  case  [as  between  two  cases  previously  used  by  way  of  illustra- 
tion], it  would  be  only  necessary  to  apply  the  same  rule  to  varjdng 
circumstances  and  persons,  to  demand  the  same  ratio  between  vary- 
ing extremes.  And  it  is  not  too  much  to  assert  that  all  the  perplexity 
and  misimderstanding  on  the  subject  of  diligence  and  negligence  are 


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82  LAKE  ERIE  &  WESTERN  R.  CO.  V.  FORD        [CHAP.  II. 

due  to  the  habit  of  confounding  the  specific  acts  and  circumstances, 
which  must  always  vary,  with  the  ratio  or  relation  between  them, 
which  remains  always  the  same." 

In  13  Am.  and  Eng.  Ency.  Law  (2d  ed.),  416,  it  is  said:  "  The  very 
statement  of  the  general  rule  that  reasonable  care  is  required  to  pre- 
vent injuries  to  others  from  fire,  implies  that  what  is  reasonable  care 
must  depend  upon  the  circiunstances  of  each  particular  case.  It  is, 
however,  inaccurate  to  say,  as  many  of  the  cases  do,  that  the  degree  of 
care  varies  with  the  particular  circumstances.  It  is  only  reasonable 
care  that  is  required  in  any  case;  but  the  greater  the  danger,  or  the 
more  likely  the  communication  of  fire  and  the  ignition  of  the  property 
of  others,  the  more  precautions  and  the  closer  vigilance  reasonable 
care  requires."  As  above  suggested,  cases  can  be  foimd  in  which  it  is 
stated  that  the  degree  of  care  to  be  used  depends  upon  the  danger,  but, 
as  has  been  observed  by  this  court,  it  is  not  every  statement  of  the  law 
as  foimd  in  an  opinion  or  text-book,  however  well  and  accurately  put, 
which  can  properly  be  embodied  in  an  instruction.  Garfield  v.  State, 
(1881)  74  Ind.  60.  The  viciousness  of  the  instruction  in  question  lies 
in  its  tendency  to  lead  the  jury  to  infer  that  the  legal  standard  of 
ordinary  care  was  raised  by  the  circumstances  recited,  thus  making 
possible  the  inference  that  a  great  but  imdefined  extent  of  care  was 
required,  whereas  all  that  the  law  exacted  was  the  ordinary  care  which 
the  situation  demanded,  or  such  care  as  it  is  to  be  assumed  that  an 
ordinarily  prudent  man  would  exercise  in  the  circumstances,  were  the 
risk  his  own.^ 

In  this  case  the  acts  and  omissions  which  the  complaint  charged  as 
negligent  were  various,  so  that  the  question  of  what  was  ordinary  care 
arose  in  a  niunber  of  wajrs,  and  we  can  only  conclude,  in  view  of  the 
misleading  character  of  the  instruction  imder  consideration,  that 
prejudicial  error  has  intervened 

Judgment  reversed,  and  a  new  trial  ordered,* 

*  "  But  it  would  savor  too  much  of  refinement  to  hold  that  there  is  any  practical 
inaccuracy  in  saying  that  one  driving  a  high-powered  automobile  must  exercise  a 
greater  care  toward  others  on  a  state  highway  than  one  plodding  along  a  country 
road  with  an  ox  team."    Ru^,  C.  J.,  in  Com.  t;.  Horsfall,  213  Mass.  232,  235. 

*  "  The  rule^  that  due  dihgenoe  is  such  attention  and  effort  applied  to  a  given 
case  as  the  ordmary  prudent  man  would  i>ut  forth  imder  the  same  circumstances, 
seems  to  meet  the  aemands  of  every  conceivable  case.  .  .  .  The  ratio  of  diligence 
to  circiunstances  being  thus  fixed,  the  two  extremes  may  change  to  an  iimnite 
extent  without  deetroyins  the  ratio,  and  without  giving  rise  to  what  we  term 
ne^genoe.  The  bailee  who  imdertakes  the  carriage  of  stone  for  the  paving  of  a 
street  is  held  to  the  rule  that  he  must  use  such  attention  and  effort  as  the  ordinary 
prudent  man  would  use  imder  like  circumstances." 

"  The  bailee,  who  undertakes  to  repair  a  delicate  watch,  is  held  to  the  rule  that 
he  must  use  such  attention  and  effort  as  the  ordinary  prudent  man  would  use  under 
the  same  circumstances.  The  contract  of  the  watchmaker  is  the  same,  relatively, 
as  that  of  the  hod-carrier.  Each  contracts  to  provide  the  reasonable  ordinary  skill 
and  attention  which  a  man  in  his  position  would  exercise  under  like  circumstances. 
The  ratio^  proportion,  or  correspondence  of  diligence  to  circumstances,  of  care  to 
surroundm^,  is  fixed  and  identical.  And  in  determining  a  question  of  diligence  or 
ne^genoe  m  either  case,  it  would  be  only  necessary  to  apply  the  same  rule  to 


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SECT.  III.]  TRACT  V.  WOOD  83 

TRACY  V.  WOOD 

United  States  CiRcxnT  Court,  District  op  Rhode  Island, 
November  Term,  1822. 

Reported  in  3  Mason  (U.  S.  Circuit  Court),  132. 

Assumpsit  for  negligence  in  losing  764^  doubloons,  intrusted  to 
the  defendant  to  be  carried  from  New  York  to  Boston,  as  a  gratuitous 
bailee.  The  gold  was  put  up  in  two  distinct  bags,  one  within  the 
other,  and  at  the  trial,  upon  the  general  issue,  it  appeared  that  the  de- 
fendant, who  was  a  money  broker,  brought  them  on  board  of  the 
steamboat  bound  from  New  York  to  Providence;  that  in  the  morning 
while  the  steamboat  lay  at  New  York,  and  a  short  time  before  sailing, 
one  of  the  bags  was  discovered  to  be  lost,  and  that  the  other  bag  was 
left  by  the  defendant  on  a  table  in  his  valise  in  the  cabin,  for  a  few  mo- 
ments only,  while  he  went  on  deck  to  send  information  of  the  supposed 
loss  to  the  plaintiffs,  there  being  then  a  large  number  of  passengers  on 
board,  and  the  loss  being  publicly  known  among  them.  On  the  de- 
fendant's return  the  second  bag  was  also  misfflng  and  after  every 
search  no  trace  of  the  manner  of  the  loss  could  be  ascertained.  The 
valise  containing  both  bags  was  brought  on  board  by  the  defendant  on 
the  preceding  evening,  and  put  by  him  in  a  berth  in  the  forward  cabin. 
He  left  it  there  all  night,  having  gone  in  the  evening  to  the  theatre, 
and  on  his  return  having  slept  in  the  middle  cabin.  The  defendant 
had  his  own  money  to  a  considerable  amount  in  the  same  valise. 
There  was  evidence  to  show  that  he  made  inquiries  on  board,  if  the 
valise  would  be  safe,  and  that  he  was  informed,  that  if  it  contained 
articles  of  value,  it  had  better  be  put  into  the  custody  of  the  captain's 
clerk  in  the  bar,  imder  lock  and  key.  There  were  many  other  circum- 
stances in  the  case.  The  argument  at  the  trial  turned  wholly  on  the 
question  of  gross  negligence,  and  all  the  facts  were  fully  commented 
on  by  counsel.  But  a^^  case  is  intended  only  to  present  the  discus- 
sion on  the  questioi^  oflaw,  it  is  not  thought  necessary  to  recapitulate 
them.^ 

Story,  J.,  after  summing  up  the  facts,  said,  I  agree  to  the  law  as 
laid  down  at  the  bar,  that  in  cases  of  bailees  without  reward,  they  are 

varying  circumstances  and  persons,  to  demand  the  same  ratio  between  var3ang 
extremes.  And  it  is  not  too  much  to  assert  that  all  the  perplexitv  and  misunder- 
standmg  on  the  subject  oi  diligence  and  negligence  are  due  to  the  habit  of  con- 
foimding  the  specific  acts  and  circimistances,  which  must  always  vary,  with  the 
ratio  or  relation  between  them,  which  remains  always  the  same.  It  is  true  that 
there  may  be  different  ratios  of  effort  and  attention  to  the  circimistanoes  and  to  the 
results  desired.  A  man  may  contract  to  furnish  the  hi^est  skill,  the  most  perfect 
means  and  appliances,  the  most  assiduous  attention  in  the  accomplishment  of  a 
specific  end.  But,  when  an  individual  so  contracts,  there  is  the  element  of  special 
or  posOive  intention  introduced,  which  takes  the  case  out  of  the  category  of^  dili- 
gence, and  renders  such  a  contract  a  special  and  extraordinarv  one.  The  law  never 
requires  such  a  special,  positive  intention.  .  .  .''6  Albany  Law  Joum.  313,  314. 
^  Arguments  omitted. 


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84  TRACY  V.  WOOD  [CHAP.  II. 

liable  only  for  gross  negligence.  Such  are  depositaries,  or  persons  re- 
ceiving deposits  without  reward  for  their  care;  and  mandataries,  or 
persons  receiving  goods  to  carry  from  one  place  to  another  without 
reward.  The  latter  is  the  predicament  of  the  defendant.  He  imder- 
took  to  carry  the  gold  in  question  for  the  plaintiff,  gratuitously,  from 
New  York  to  Providence,  and  he  is  not  responsible  unless  he  has  been 
guilty  of  gross  negligence.  Nothing  in  this  case  arises  out  of  the  per- 
sonal character  of  the  defendant,  as  broker.  He  is  not  shown  to  be 
either  more  or  less  negUgent  than  brokei*s  generally  are;  nor  if  he  was, 
is  that  fact  brought  home  to  the  knowledge  of  the  plaintiffs.  They 
confided  the  money  to  him  as  a  broker  of  ordinary  diligence  and  care, 
having  no  other  knowledge  of  him;  and,  therefore,  no  question  arises 
as  to  what  would  have  been  the  case,  if  the  plaintiffs  had  known  him 
to  be  a  very  careless  or  a  very  attentive  man.  Jones'  Bail.  46.  The 
language  of  the  books,  as  to  what  constitutes  gross  negligence,  or  not, 
is  sometimes  loose  and  inaccurate  from  the  general  manner  in  which 
propositions  are  stated.  When  it  is  said,  that  gross  negligence  is  equiv- 
alent to  fraud,  it  is  not  meant  that  it  cannot  exist  without  fraud. 
There  may  be  very  gross  negligence  in  cases  where  there  is  no  pretence 
that  the  party  has  been  guilty  of  fraud,  though  certainly  such  negli- 
gence is  often  presumptive  of  fraud.  In  determining  what  is  gross 
negligence,  we  must  take  into  consideration  what  is  the  nature  of  the 
thing  bailed.  If  it  be  of  little  value,  less  care  is  required  than  if  it  be 
of  great  value.  If  a  bag  of  apples  were  left  in  a  street  for  a  short  time, 
without  a  person  to  guard  it,  it  would  certainly  not  be  more  than 
ordinary  neglect.  But  if  the  bag  were  of  jewels  or  gold,  such  conduct 
would  be  gross  negligence.  In  short,  care  and  diligence  are  to  be  pro- 
portional to  the  value  of  the  goods,  the  temptation  and  faciUty  of 
stealing  them,  and  the  danger  of  losing  them.  So  Su*  William  Jones 
lays  down  the  law.  "  Diamonds,  gold,  and  precious  trinkets,"  says 
he,  "  ought  from  their  nature  to  be  kept  with  peculiar  care,  under  lock 
and  key;  it  would,  therefore,  be  gross  neghg%ce  in  a  depositary  to 
leave  such  deposit  in  an  open  antechamber;  BXid%rdinary  neglect,  at 
least,  to  let  them  remain  on  the  table,  where  they  might  possibly  tempt 
his  servants."  Jones'  Bail.  38,  46,  62.  So  in  Smith  v.  Home,  2 
Moore's  R.  18,  it  was  held  to  be  gross  negligence  in  the  case  of  a  car- 
rier, under  the  usual  notice  of  not  being  responsible  for  goods  above 
£5  in  value,  to  send  goods  in  a  cart  with  one  man,  when  two  were 
usually  sent  to  see  to  the  delivery  of  them.  So  in  Booth  v.  Wilson,  1 
Bam.  &  Aid.  59,  it  was  held  gross  negUgence  in  a  gratuitous  bailee  to 
put  a  horse  into  a  dangerous  pasture.  In  Batson  v.  Donovan,  4  Bam. 
&  Aid.  21,  the  general  doctrine  was  admitted  in  the  fullest  terms.  It 
appears  to  me  that  the  tme  way  of  considering  cases  of  this  nature  is, 
to  consider  whether  the  party  has  omitted  that  care  which  bailees, 
without  hire,  or  mandataries  of  ordinary  pmdence  usually  take  of 
property  of  this  nature.    If  he  has,  then  it  constitutes  a  case  of  gross 


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SECT.  III.]  TRACY  V.  WOOD  85 

negligence.  The  question  is  not  whether  he  has  omitted  that  care, 
which  very  prudent  persons  usually  take  of  their  own  property,  for  the 
omission  of  that  would  be  but  sKght  negligence;  nor  whether  he  has 
omitted  that  care  which  prudent  persons  ordinarily  take  of  their  own 
property,  for  that  would  be  but  ordinary  negUgence :  but  whether  there 
be  a  want  of  that  care,  which  men  of  conmion  sense,  however  inatten- 
tive, usually  take,  or  ought  to  be  presimied  to  take  of  their  property, 
for  that  is  gross  negUgence.  The  contract  of  bailees  without  reward 
is  not  merely  for  good  faith,  but  for  such  care  as  persons  of  common 
prudence  in  their  situation  usually  bestow  upon  such  property.  If 
they  omit  such  care,  it  is  gross  negUgence. 

The  present  is  a  case  of  a  mandatary  of  money.  Such  property  is 
by  all  persons,  negUgent  as  well  as  prudent,  guarded  with  much  greater 
care  than  common  property.  The  defendant  is  a  broker,  accustomed 
to  the  use  and  transportiation  of  money,  and  it  must  be  presumed  he  is 
a  person  of  ordinary  diUgence.  He  kept  his  own  money  in  the  same 
valise;  and  took  no  better  care  of  it  than  of  the  plaintiff's.  StiU  if  the 
jury  are  of  opinion  that  he  omitted  to  take  that  reasonable  care  of  the 
gold  which  bailees  without  reward  in  his  situation  usuaUy  take,  or 
which  he  himself  usually  took  of  such  property,  imder  such  circiun- 
stances,  he  has  been  guilty  of  gross  negUgence. 

Verdict  for  the  plaintiffs  for  $5700,  the  amount  of  one  hag  of  the  gold; 
for  the  defendant  as  to  the  other  hag} 

^  A  fuller  statement  of  the  views  of  the  learned  judge  may  be  foimd  in  the 
extracts,  which  follow,  from  his  work  on  Bailments: 

"  Section  11.  [On  the  subject  of  the  various  degrees  of  care  or  diligence  which 
are  recognized  in  the  common  law.]  .  .  .  There  may  be  a  high  degree  of  diligence, 
a  conmion  degree  of  diligence,  and  a  slight  degree  of  diligence:  ..." 

''  Common  or  ordinary  diligence  is  that  degree  of  diligence  wnich  men  in  general 
exact  in  respect  to  their  own  concerns.  .  .  .  That  may  be  said  to  be  common 
or  ordinary  diligence,  in  the  sense  of  the  law,  which  men  of  common  prudence 
generally  exercise  about  their  own  affairs  in  the  age  and  coimtry  in  which  they 

"  Section  16.  Having  thus  ascertained  the  nature  of  ordinary  diligence,  we  may 
now  be  prepared  to  decide  upon  the  other  two  degrees.  High  or  great  diligence  is 
of  course  extraordinary  diUgence,  or  that  which  very  prudent  persons  take  of  their 
own  concerns;  and  low  or  slight  diligence  is  that  which  persons  of  less  than  com- 
mon prudence,  or  indeed  of  any  prudence  at  all,  take  of  their  own  concerns.  Sir 
William  Jones  considers  the  latter  to  be  the  exercise  of  such  diligence  as  a  man  of 
common  sense,  however  inattentive,  takes  of  his  own  concerns.  Perhaps  this  is  ex- 
pressing the  measure  a  little  too  loosely;  for  a  man  may  possess  common  sense, 
nay,  uncommon  sense,  and  yet  be  so  grossly  inattentive  to  his  own  concerns  as  to 
deserve  the  appellation  of  having  no  prudence  at  all.  The  measure  is  rather  to  be 
drawn  from  the  diligence  which  men,  habitually  careless  or  of  little  prudence  (not 
*  however  inattentive  '  they  may  be),  generally  take  in  their  own  concerns." 

"  Section  17.  Having,  then,  arrived  at  the  three  degrees  of  diligence,  we  are 
naturally  led  to  those  of  negli^nce,  which  correspond  thereto;  for  negligence  may 
be  ordinary,  or  less  than  ordmary,  or  more  than  ordinary.  Ordinary  negligence 
may  be  denned  to  be  the  want  of  ordinary  diligence,  and  shght  negligence  to  be  the 
want  of  great  diligence,  and  gross  negligence  to  be  the  want  of  slight  diligence.  For 
he  who  is  only  less  diligent  than  very  careful  men  cannot  be  said  to  be  more  than 
slightly  inattentive;  he  who  omits  ordinary  care  is  a  little  more  ne^gent  than  men 
ordinarily  are;  and  he  who  omits  even  slight  diligence  fails  in  the  lowest  degree  of 


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86  DOLPHIN  V.  WORCESTER  STREET  R.  CO.  [CHAP.  II. 

DOLPHIN  V.  WORCESTER  STREET  R.  CO. 

Supreme  Judicial  Court,  Massachusetts,  October  18,  1905. 

Reported  in  189  MaeaachusetU  Reports,  270. 

Action  of  tort  under  Revised  Laws,  chapter  111,  section  267,  for 
the  death  of  a  passenger  on  a  street  railway.^ 

prudence,  and  is  deemed  grossly  negligent.  .  .  "  Story  on  Bailments  (8th  ed.)» 
§i  11,  16,  17. 

See  also  Redington  v.  Pacific  Co.,  107  Gal.  317,  .323-324;  Belt  Line  R.  Co.  v. 
Banicki,  102  111.  App.  642;  Union  R.  Co.  v,  Henry,  36  Kan.  565;  French  t;.  Buffalo 
R.  Co.,  2  Abb.  Dec.  196, 200-201,  4  Keyes  108, 113-114:  Cederson  v.  Navigation 
Co.,  38  Or.  343;  Lockwood  v.  Belle  City  R.  Co.,  92  Wis.  97,  111-113;  Astin  v. 
Chicago  R.  Co.,  143  Wis.  477. 

"  The  theory  that  there  are  three  degrees  of  neglicence  described  by  the  terms 
slight,  ordinary,  and  gross,  has  been  introduced  into  the  conmion  law  from  some  of 
the  commentators  on  the  Roman  law.  It  may  be  doubted  if  these  terms  can  be 
usefully  applied  in  practice.  Their  meaning  is  not  fixed,  or  capable  of  being  so. 
One  degree,  thus  described,  not  only  may  be  confounded  with  another,  but  it  is  quite 
impracticable  exactly  to  difrtinguish  them.  Their  signification  necessanly  varies 
according  to  circumstances,  to  whose  influence  the  courts  have  been  forced  to 

K'eld,  until  there  are  so  many  real  exceptions  that  the  rules  themselves  can  scarcely 
;  said  to  have  a  genend  operation,  in  Storer  v,  Gowen^  18  Maine,  177,  the  Su- 
preme Court  of  Maine  says:  '  How  much  care  wiU,  in  a  given  case,  relieve  a  party 
from  the  imputation  of  gross  negligence,  or  what  omission  wiU  amoimt  to  the 
charge,  is  necessarily  a  question  of  fact,  depending  on  a  great  varietv  of  circum- 
stances which  the  law  cannot  exactly  define.'  Mr.  Justice  Story,  Bailments,  §  11, 
says:  '  Indeed,  what  is  common  or  ordinary  diligence  is  more  a  matter  of  fact  than 
of  law.'  If  the  law  furnishes  no  definition  of  the  terms  gross  neglipence,  or  ordinary 
negligence,  which  can  be  applied  in  practice,  but  leaves  it  to  the  jury  to  determine, 
in  each  case,  what  the  duty  was,  and  what  omissions  amount  to  a  breach  of  it,  it 
would  seem  that  imperfect  and  confessedly  unsuccessful  attempts  to  define  that 
dutv  had  better  be  abandoned. 

''Recently,  the  ludges  of  several  courts  have  expressed  their  disapprobation  of 
these  attempts  to  fix  the  degrees  of  diligence  by  legal  definitions,  and  have  com- 
plained of  the  impracticability  of  applying  them.  Wilson  t;.  Brett.  11  Meeson  and 
Wels.  113;  Wyldt;.  Pickford,  8 ibid.  443,  461,  462;  Hinton v.  Dibbin,  2 Q.  B.  646, 
651.  It  must  be  confessed  that  the  difficulty  in  defining  noss  negligence,  which  is 
apparent  in  perusing  such  cases  as  Tracy  et  al.  t;.  Wood,  3  Mason  132.  and  Foster  v. 
The  Essex  Bank,  17  Mass.  479,  would  alone  be  sufficient  to  justify  these. com- 

Elaints.  It  may  be  added  that  some  of  the  ablest  commentators  on  the  Roman 
iw,  and  on  the  civil  code  of  France  have  wholly  repudiated  this  theory  of  three 
degrees  of  diligence,  as  unfounded  in  principles  of  natural  justice,  useless  in  prac- 
tice, and  presenting  inextricable  embarrassments  and  difficulties.  See  TouUier's 
Droit  Civil,  6th  vol.,  p.  239,  etc.;  11th  vol.,  p.  203,  etc.;  Makeldey,  Man.  Du 
Droit  Romain,  191."  Curtis,  J.,  in  Steamboat  v.  King,  16  How.  469,  474  (injiury 
to  gratuitous  passeng^). 

^*  Confusion  has  arisen  from  regarding  negligence  as  a  positive  instead  of  a  nega- 
tive word.  It  is  really  the  absence  of  such  care  as  it  was  the  duty  of  the  defendant 
to  use.  A  bailee  is  only  bound  to  use  the  ordinary  care  of  a  man,  and  so  the  absence 
of  it  is  caUed  gross  negligence.  A  person  who  undertakes  to  do  some  work  for  re- 
ward to  an  article  must  exercise  the  care  of  a  skilled  workman,  and  the  absence  of 
such  care  in  him  is  negligence.  Gross,  therefore,  is  a  word  of  description,  and  not 
a  definition;  and  it  would  have  been  only  introaucins  a  source  of  confusion  to  use 
the  expression  ^ross  ne^gence,  instead  of  the  equivalent,  a  want  of  due  care  and 
skill  in  navigatmg  the  vemel,  which  was  again  and  again  used  by  the  Lord  Chief 
Justice  in  his  summing  up."  WiUes,  J.,  in  Grill  v.  General  Collier  Co.,  L.  R.  1 C.  P. 
600. 

As  to  the  standard  for  physicians,  see  McNevins  v.  Lowe,  40  HI.  209;  Small  v, 
Howard,  128  Mass.  131;  Lukai;.  Lowrie,  171  Mich.  122;  Booth  v.  Andrus,  91  Neb. 
810;  McCandless  v,  McWha.  22  Pa.  St.  261. 

*  Statement  rewritten.    Only  part  of  case  is  given. 


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SECT,  ni.]  DOLPHIN  V.  WORCESTER  STREET  R.   CO.  87 

The  material  portions  of  the  statute  are  as  follows:  — 

"  If  a  corporation  which  operates  a  railroad  or  a  street  railway,  by 
reason  of  its  negligence  or  by  reason  of  the  unfitness  or  gross  negU- 
gence  of  its  agents  or  servants,  while  engaged  in  its  business,^  causes 
the  death  of  a  passenger,  or  of  a  person  who  is  in  the  exercise  of  due 
care  and  who  is  not  a  passenger  or  in  the  employ  of  such  corporation, 
it  shall  be  punished  by  a  fine  of  not  less  than  five  hundred  nor  more 
than  five  ^ousand  dollars,  which  shall  be  recovered  by  an  indict- 
ment," and  shall  be  paid  to  the  executor  or  administrator,  to  the  use 
of  the  widow  and  children  or  the  next  of  kin.  "  Such  corporation 
shall  also  be  liable  in  damages  in  the  sum  of  not  less  than  five  himdred 
nor  more  than  five  thousand  dollars,  which  shall  be  assessed  with 
reference  to  the  degree  of  culpability  of  the  corporation  or  of  its  ser- 
vants or  agents,  and  shall  be  recovered  in  an  action  of  tort  ...  by 
the  executor  or  administrator  of  the  deceased  for  the  use  of  the  persons 
hereinbefore  specified  in  the  case  of  an  indictment.  .  .  .  But  no 
executor  or  adoiinistrator  shall,  for  the  same  cause,  avail  himself  of 
more  than  one  of  the  remedies  given  by  the  provisions  of  this  section.'^ 

At  the  trial  the  plaintiff  requested  the  following  rulings:  — 

"  6.  When  the  duty  of  exercising  the  highest  degree  of  care  is  in- 
cumbent upon  the  defendant,  any  failure  upon  the  part  of  its  servants 
to  exercise  that  degree  of  care  is  gross  negligence. 

"  7.  The  term '  gross  '  in  the  allegation  gross  negligence,  when  used 
with  reference  to  the  degree  of  care  required  and  not  fulfill^,  is  merely 
an  expletive,  when  the  degree  of  care  required  is  the  very  highest. 

"  8.  There  are  no  degrees  of  negUgence." 

The  plaintiff  excepted  to  the  refusal  of  the  judge  to  give  the  rulings 
requested,  and  to  such  parts  of  the  charge  as  were  in  conflict  with 
them.  The  defendant  had  a  verdict,  and  the  case  is  here  on  these 
exceptions. 

LoRiNG,  J.  .  .  .  The  judge  was  right  in  refusing  to  give  the  sixth 
ruling  asked  for.  A  failure  to  exercise  the  highest  degree  of  care  is 
slight  negligence. 

3.  The  seventh  ruling  requested  was  wrong.  The  term  "  gross  neg- 
ligence "  in  a  case  where  the  degree  of  care  due  is  the  highest  degree 
of  care  means  that  there  has  been  a  gross  failure  to  exercise  that  degree 
of  care.* 

4.  There  are  degrees  of  care  in  cases  imder  R.  L.  c.  Ill,  §  267,  by 
force  of  that  act.'  Exceptions  overruled, 

*  The  word  gross  was  struck  out  by  chap.  375,  Acts  of  1907,  §  1. 

*  Compare  Martin  i;.  Boston  R.  Co.,  205  Mass.  16;  Devine  v.  New  York  R.  Co., 
205  Mass.  416. 

*  For  other  cases  of  statutory  dea*ees  of  negligence,  see  Seaboard  R.  Co.  v,  Cau- 
then,  116  Ga.  422;  Louisville  R.  Co.  v.  Long,  94  Ky.  410;  Western  Tel.  Co.  v. 
Reeves,  34  Okl.  468;  Davis  v,  Raiht>ad  Co.,  63  S.  C.  370.  That  the  wanton  and 
reckless  disregard  of  consequences  which  makes  a  defendant  liable  at  common  law 
to  a  plaintiff  not  in  the  exercise  of  due  care  is  something  more  than  negligence 
gross  in  degree,  see  Birmingham  R.  Co.  v,  Pinckard,  124  Ala.  372;   Denman  v. 


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88  CLEVELAND  ROLLING  MILL  CO.  V.  CORRIGAN       [CHAP,  n. 

CLEVELAND  ROLLING  MILL  CO.  v  CORRIGAN 

Supreme  Court,  Ohio,  February  26,  1889. 

Reported  in  46  Ohio  StaU  Reports,  283. 

Error  to  Circuit  Court  of  Cuyahoga  County. 

The  plaintiff  below,  John  Corrigan,  an  infant  under  the  age  of 
fourteen,  by  his  guardian,  sued  the  Rolling  Mill  Company  for  dam- 
ages suffered  while  in  the  defendants'  employ,  and  which  he  alleged 
were  caused  by  their  negUgence. 

The  answer  of  the  defendants  alleged,  among  other  defences,  that 
the  injury  occurred  solely  through  the  plaintiff's  fault. 

As  to  this  ground  of  defence,  the  Court  instructed  the  jury  in  part 
as  follows:  — 

It  was  the  duty  of  the  plaintiff  to  use  ordinary  care  and  prudence; 
just  such  care  and  pi-udence  as  a  boy  of  his  age,  of  ordinary  care  and 
prudence,  would  use  under  like  or  similar  circumstances.  You  should 
take  into  consideration  his  age,  the  judgment  and  knowledge  he 
possessed.  Verdict  and  judgment  for  plaintiff. 

The  Company  filed  its  petition  in  error.^ 

Williams,  J.  The  only  questions  presented  in  this  case  are  those 
arising  upon  the  special  instructions  given  by  the  Court  in  response 
to  the  request  of  \he  jury.  These  instructions,  the  plaintiff  in  error 
contends,  are  erroneous  in  their  entirety  and  in  detail. 

1.  First,  it  is  claimed  that  the  Court  erred  in  the  statement  of  the 
plaintiff's  duty,  in  the  opening  proposition  of  the  charge,  wherein  the 
jury  were  instructed  that  "  it  was  the  duty  of  the  plaintiff  to  use 
ordinary  care,''  which  the  Court  defined  to  be  "  just  such  care  as  boys 
of  that  age,  of  ordinary  care  and  prudence,  would  use  under  like  cir- 
cumstances," and  that  the  jury  "  should  take  into  consideration  the 
age  of  the  plaintiff,  and  the  judgment  and  knowledge  he  possessed." 
We  have  found  no  decision  of  this  Court  upon  the  subject  of  the  con- 
tributory negligence  of  infants,  or  the  measure  of  care  required  of 
them.  Elsewhere  the  decisions  are  conflicting.  Each  of  threei  differ- 
ent rules  on  the  subject  has  found  judicial  sanction.  One  rule  requires 
of  children  the  same  standard  of  care,  judgment,  and  discretion,  in  an- 
ticipating and  avoiding  injury,  as  adults  are  boimd  to  exercise.^   An- 

Johnston,  85  Mich.  387;  Banks  v.  Braman,  188  Mass.  367;  Southern  Mfg.  Co.  v, 
Bradley,  52  Tex.  687;  Barlow  v,  Foster,  149  Wis.  613. 

1  Statement  of  facts  abridged.  Only  so  much  of  the  case  is  given  as  relates  to 
one  point.    Arguments  omitted. 

«  E.  g.,  Neal  v.  Gillett,  23  Conn.  437  (child  of  13;  charge  that  age  was  not  to  be 
taken  into  account  upheld).  This  is  universally  rejected.  Lynch  v.  Nurdin,  1 
6.  B.  29;  Washington  R.  Co.  v.  Gladmon,  15  Wall.  401;  Government  R.  Co.  v, 
Hanlon,  53  Ala.  70;  Chicago  R.  Co.  v.  Murray,  71  111.  601:  IndianapoUs  R.  Co.  r. 
Wilson,  134  Ind.  95;  McMiUan  v.  Burlington  R.  Co.,  46  la.  231;  Kansas  R.  Co. 
V.  Whipple,  39  Kan.  531;  Lynch  t;.  Smith,  104  Mass.  52;  Huff  v.  Ames,  16  Neb. 
139;  Swift  V.  Staten  Island  R.  Co.,  123  N.  Y.  645;  Pennsylvania  R.  Co.  v.  Kelly, 
31  Pa.  St.  372;  Queen  v.  Dayton  Coal  Co.,  95  Tenn.  458;  Cook  v.  Houston  Naviga- 
tion Co.,  76  Tex.  353;  Roth  v.  Union  Depot  Co.,  13  Wash.  525. 


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SECT.  Ill,]    CLEVELAND  KOLUNG  MILL  CO.  V.  CORRIGAN  89 

other  wholly  exempts  small  children  from  the  doctrine  of  contributory 
negligence.  Between  these  extremes  a  third  and  more  reasonable  rule 
has  grown  into  favor,  and  is  now  supported  by  the  great  weight  of 
authority,  which  is,  that  a  child  is  held  to  no  greater  care  than  is  usu- 
ally possessed  by  children  of  the  same  age.  Authors  and  judges, 
however,  do  not  always  employ  the  same  language  in  giving  expression 
to  the  rule.  In  Beach  on  Contributory  Negligence,  sec.  46,  it  is  thus 
exjH'essed :  "  An  infant  plaintiff  who,  on  the  one  hand,  is  not  so  young 
as  to  escape  entirely  all  legal  accountability,  and  on  the  other  hand  is 
not  so  mature  as  to  be  held  to  the  responsibiUty  of  an  adult  is,  of 
course,  in  cases  involving  the  question  of  negUgence,  to  be  held  re- 
sponsible for  ordinary  care,  and  ordinary  care  must  mean,  in  this 
connection,  that  degree  of  care  and  prudence  which  may  reasonably 
be  expected  of  a  child."  The  decisions  enforcing  this  rule,  that  chil- 
dren are  to  be  held  responsible  only  for  such  degree  of  care  and  pru- 
dence as  may  reasonably  be  expected  of  them,  taking  due  account  of 
their  age  and  the  particular  circumstances,  are  very  numerous.  "  It 
is  well  settled,"  says  Mr.  Justice  Himt  in  Railroad  Company  v.  Stout, 
17  Wall.  657,  "  that  the  conduct  of  an  infant  of  tender  years  is  not  to 
be  judged  by  the  same  rule  which  governs  that  of  an  adult.  .  .  .  The 
care  and  caution  required  of  a  child  is  according  to  his  maturity  and 
capacity  only,  and  this  is  to  be  determined  in  each  case  by  the  circimi- 
stances  of  that  case."  In  Shearman  &  Redfield  on  Negligence,  sec.  73, 
it  is  said  to  be  "  now  settled  by  the  overwhehning  weight  of  authority 
that  a  child  is  held,  as  far  as  he  is  personally  concerned,  only  to  the 
exercise  of  such  care  and  discretion  as  is  reasonably  to  be  expected 
from  children  of  his  own  age."  Another  author  says,  "  A  child  is  only 
bound  to  exercise  such  a  degree  of  care  as  children  of  his  particular 
age  may  be  presumed  capable  of  exercising."  Whittaker's  Smith  on 
Neg.,  411. 

This  rule  appears  to  rest  upon  sound  reason  as  well  as  authority. 
To  constitute  contributory  negUgence  in  any  case  there  must  be  a 
want  of  ordinary  care  and  a  proximate  connection  between  such  want 
of  care  and  the  injury  complained  of;  and  ordinary  care  is  that  de- 
gree of  care  which  persons  of  ordinary  care  and  prudence  are  accus- 
tomed to  use  under  similar  circumstances.  Children  constitute  a  class 
of  persons  of  less  discretion  and  judgment  than  adults,  of  which  all 
reasonably  informed  men  are  aware.  Hence  ordinarily  prudent  men 
reasonably  expect  that  children  will  exercise  only  the  care  and  pru- 
dence of  children,  and  no  greater  degree  of  care  should  be  required  of 
them  than  is  usual  under  the  circumstances  among  careful  and  pru- 
dent persons  of  the  class  to  which  they  belong.  We  think  it  a  sound 
rule,  therefore,  that  in  the  application  of  the  doctrine  of  contributory 
negUgence  to  children,  in  actions  by  them  or  in  their  behalf  for  injuries 
occasioned  by  the  negUgence  of  others,  their  conduct  should  not  be 
judged  by  the  same  rule  which  governs  that  of  adults,  and  while  it  is 


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90  STONE  V.  DRY  DOCK  R.  CO.         [CHAP.  n. 

their  duty  to  exercise  ordinary  care  to  avoid  the  injuries  of  which  they 
complain,  ordinary  care  for  them  is  that  degree  of  care  which  children 
of  the  same  age,  of  ordinary  care  and  prudence,  are  accustomed  to 
exercise  imder  similar  circumstances. 

That  portion  of  the  charge  of  the  Court  under  discussion  is  in  sub- 
stantial conformity  to  this  conclusion.  The  care  and  prudence  which 
a  boy  of  the  plaintiff's  age  of  ordinary  care  and  prudence  "  would  use 
imder  like  and  similar  circumstances/'  as  expr^sed  in  the  charge,  is 
such  care  as  "  is  reasonably  to  be  expected  from  a  boy  of  his  age,"  or 
**  which  boys  of  his  age  usually  exercise,"  as  the  books  express  it.  No 
different  effect  is  given  to  the  charge  of  which  the  plaintiff  in  error 
can  complain,  by  the  direction  to  the  jury  to  take  into  consideration 
the  age  of  the  boy  "  and  the  judgment  and  knowledge  he  possessed." 
This  did  not  diminish  the  degree  of  care  required  by  the  previous 
portion  of  the  instruction.  Judgment  affirmed.^ 


STONE  V.  DRY  DOCK  R.  CO. 

Court  of  Appeals,  New  York,  June  4, 1889. 

Reported  in  115  New  York  Reports,  104. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  entered  upon  an  order  made  October 
26,  1887,  which  aflSrmed  a  judgment  in  favor  of  defendant,  entered 
upon  an  order  nonsuiting  plaintiff  on  trial. 

This  was  an  action  to  recover  damages  for  the  alleged  negligence  in 
causing  the  death  of  plaintiff's  intestate,  a  child  of  seven  years  and 
three  or  foiu*  months  old. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion.* 

1  Smith  V.  Pittsburgh  R.  Co.,  90  Fed.  783;  Warble  v.  Sulzbeiwr,  185  Ala.  603; 
Denver  Tramway  Co.  v.  Nicholas,  35  Col.  462;  Rohlofif  v.  Fair  Haven  R.  Co.,  76 
Conn.  689;  Goldstein  v.  People's  R.  Co.,  5  Pennewill,  306;  Elwood  R.  Co.  v.  Ross, 
26  Ind.  App.  258;  Wyman  v.  Berry,  106  Me.  43;  Munn  t;.  Reed,  4  AH.  431; 
Rasmussen  v.  Whipple,  211  Mass.  546  (but  see  Angelary  v.  Springfield  R.  Co.,  213 
Mass.  110);  Lucarelli  v.  Boston  R.  Co.,  213  Mass.  454;  Strudgeon  v.  Villas,  107 
Mich.  496;  Consolidated  Traction  Co.  v.  Scott.  58  N.  J.  Law,  682;  Swift  t;.  Staten 
Island  R.  Co.,  123  N.  Y.  645:  Laferty  v.  Third  Ave.  R.  Co.,  176  N.  Y.  594:  Lake 
Erie  R.  Co.  v,  Mackey,  53  Ohio  St.  370:  Box  &  Label  Co.  v.  Caine,  11  Ohio  Cir.  Ct. 
R.  N.  8.  81  (Afif*d  78  Ohio  St.  405) ;  Dubiver  v.  City  R.  Co.,  44  Or.  227;  Rachmel  v. 
Clark,  205  Pa.  St.  314;  Parker  v.  Washington  R.  Co.,  207  Pa.  St.  438  (but  com- 
pare Mulligan  v.  Burrough,  243  Pa.  St.  361);  Texas  R.  Co.  v,  Phillips,  91  Tex.  278; 
Christensen  v.  Oregon  R.  Co.,  29  Utah,  192;  Blankenship  v,  Chesapeake  R.  Co., 
94  Va.  449;  Deputy  v.  Kimmell,  73  W.  Va.  595  Accord. 

Children  are  seldom  made  defendants  in  actions  for  neghgence.  Most  of  the  dis- 
cussions as  to  the  standard  of  care  required  of  children  are  to  be  found  in  cases 
where  the  children,  or  their  parents  or  representatives,  were  plaintiffs  seeking  to 
recover  for  damage  to  the  children  alleged  to  be  caused  by  defendant's  neghgence, 
and  where  the  defendant  contended  that  the  action  was  barred  by  the  contribu- 
tory negli^nce  of  the  child.  A  good  discussion  where  defendant  was  an  infant  may 
be  found  m  Briese  v.  Maechtle,  146  Wis.  89. 

'  Arguments  and  part  of  opinion  omitted. 


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SECT.  III.]  STONE  V.  DRY  DOCK  R.  CO.  91 

Andrews,  J.  The  nonsuit  was  placed  on  the  ground  that  an  infant 
seven  years  of  age  was  sui  juris,  and  that  the  act  of  the  child  in  cross- 
ing the  street  in  front  of  the  approaching  car  was  negUgence  on  her 
party  which  contributed  to  her  death,  and  barred  a  recovery.  We 
think  the  case  should  have  been  submitted  to  the  jury. 

The  n^Iigence  of  the  driver  of  the  car  is  conceded.  His  conduct 
in  driving  rapidly  along  Canal  Street  at  its  intersection  with  Orchard 
Street,  without  looking  ahead,  but  with  his  eyes  turned  to  the  inside 
of  the  car,  was  grossly  negligent.  Mangam  v.  Brooklyn  R.  R.  Co., 
38  N.  Y.  455;  Baihroad  Co.  v.  Gladmon,  15  Wall.  401.  It  cannot  be 
asserted  as  a  proposition  of  law  that  a  child  just  passed  seven  years 
of  age  is  sid  juris,  so  as  to  be  chargeable  wi^  n^ligence.  The  law 
does  not  define  when  a  child  becomes  sui  juris.  Kunz  v.  City  of  Troy, 
104  N.  Y.  344.  Infants  under  seven  years  of  age  are  deemed  inca- 
pable of  coomiitting  crime,  and  by  the  common  law  such  incapacity 
presumptively  continues  until  the  age  of  fourteen.  An  infant  between 
those  ages  was  regarded  as  within  the  age  of  possible  discretion,  but 
on  a  criminal  charge  against  an  infant  between  those  years  the  burden 
was  upon  the  prosecutor  to  show  that  the  defendant  had  intelligence 
and  maturity  of  judgment  sufficient  to  render  him  capable  of  harbor- 
ing a  criminal  intent.  1  Arch.  11.  The  Penal  Code  preserves  the  rule 
of  the  conunon  law  except  that  it  fixes  the  age  of  twelve  instead  of 
foiu*teen  as  the  time  when  the  presumption  of  incapacity  ceases.  Penal 
Code,  §§  18,  19. 

In  administering  civil  remedies  the  law  does  not  fix  any  arbitrary 
period  when  an  infant  is  deemed  capable  of  exercising  judgment  and 
discretion.  It  has  been  said  in  one  case  that  an  infant  three  or  four 
years  of  age  could  not  be  regarded  as  sui  juris,  and  the  same  was  said 
in  another  case  of  an  infant  five  years  of  age.  Mangam  v.  Brooklyn 
R.  R.,  supra;  Fallon  v.  Central  Park,  N.  &  E.  R.  R.  R.  Co.,  64  N.  Y. 
13.  On  the  other  hand,  it  was  said  in  Cosgrove  v.  Ogden,  49  N.  Y. 
255,  that  a  lad  six  years  of  age  could  not  be  assumed  to  be  incapable 
of  protecting  himself  from  danger  in  streets  or  roads,  and  in  another 
case  that  a  boy  of  eleven  years  of  age  was  competent  to  be  trusted  in 
the  streets  of  a  city.  McMahon  v.  Mayor,  Ac,  33  N.  Y.  642.  From 
the  nature  of  the  case  it  is  impossible  to  prescribe  a  fixed  period  when 
a  child  becomes  sui  juris.  Some  children  reach  the  point  earlier  than 
others.  It  depends  upon  many  things,  such  as  natural  capacity,  physi- 
cal conditions,  training,  habits  of  life,  and  surroundings.  These  and 
other  circumstances  may  enter  into  the  question.  It  becomes,  there- 
fore, a  question  of  fact  for  the  jury  where  the  inquiry  is  material 
imless  the  child  is  of  so  very  tender  years  that  the  Court  can  safely 
decide  the  fact.  The  trial  Court  misapprehended  the  case  of  Wendell 
V,  New  York  Central  Railroad  Company,  91  N.  Y.  420,  in  supposing 
that  it  decided,  as  a  proposition  of  law,  that  a  child  of  seven  years  was 
capable  of  exercising  judgment  so  as  to  be  chargeable  with  contribu- 


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92  STONE  V.  DRY  DOCK  R.  CO.         [CHAP.  H. 

tory  negligence.  It  was  assumed  in  that  case,  both  on  the  trial  and  on 
appeal,  that  the  child  whose  conduct  was  in  question  was  capable  of 
understanding,  and  did  understand  the  peril  of  the  situation,  and 
the  evidence  placed  it  beyond  doubt  that  he  recklessly  encountered 
the  danger  which  resulted  in  his  death.  The  boy  was  familiar  with 
the  crossing,  and,  eluding  the  flagman  who  tried  to  bar  his  way,  at- 
tempted to  run  across  the  track  in  front  of  an  approaching  train  in 
plain  sight,  and  unfortunately  sUpped  and  fell,  and  was  run  over  and 
killed.  It  appeared  that  he  was  a  bright,  active  boy,  accustomed  to  go 
to  school  and  on  errands  alone,  and  sometimes  was  intrusted  with  the 
duty  of  driving  a  horse  and  wagon,  and  that  on  previous  occasions  he 
had  been  stopped  by  the  flagman  while  attempting  to  cross  the  track 
in  front  of  an  approaching  train,  and  had  been  warned  of  the  danger. 
The  Court  held,  upon  this  state  of  facts,  that  the  boy  was  guilty  of 
culpable  negligence.  But  the  case  does  not  decide,  as  matter  of  law, 
that  all  children  of  the  age  of  seven  years  are  sui  juris. 

We  are  inclined  to  the  opinion  that  in  an  action  for  an  injury  to  a 
child  of  tender  years,  based  on  negUgence,  who  may  or  may  not  have 
been  sui  juris  when  the  injury  happened,  and  the  fact  is  material  as 
bearing  upon  the  question  of  contributory  negligence,  the  burden  is 
upon  the  plaintiff  to  give  some  evidence  that  the  party  injiu-ed  was  not 
capable,  as  matter  of  fact,  of  exercising  judgment  and  discretion. 
This  rule  would  seem  to  be  consistent  with  the  principle  now  well 
settled  in  this  State,  that  in  an  action  for  a  personal  injury,  based  on 
negligence,  freedom  from  contributory  negligence  on  the  part  of  the 
party  injured  is  an  element  of  the  cause  of  action.  In  the  present 
case  the  only  fact  before  the  jury  bearing  upon  the  capacity  of  the 
child  whose  death  was  in  question  was  that  she  was  a  girl  seven  years 
and  three  months  old.  This,  we  think,  did  not  alone  justify  an  infer- 
ence that  the  child  was  incapable  of  exercising  any  degree  of  care.  But, 
assuming  that  the  child  was  chargeable  with  the  exercise  of  some  de- 
gree of  care,  we  think  it  should  have  been  left  to  the  jury  to  determine 
whether  she  acted  with  that  degree  of  prudence  which  might  reason- 
ably be  expected,  under  the  circumstances,  of  a  child  of  her  years. 
This  measure  of  care  is  all  that  the  law  exacts  in  such  a  case.   Thurber 

V.  Harlem,  B.  M.  &  F.  R.  R.  Co.,  60  N.  Y.  335.i     r  ^        ,  ^ 

'  '  Judgment  reversed. 

1  Northern  R.  Co.  t;.  Heaton,  191  Fed.  24;  Little  Rock  Traction  Co.  v.  Nelson, 
66  Ark.  494  (boy  ten  years  old);  Quincy  Gas  Co.  v.  Bauman,  203  111.  295,  104  El. 
App.  600  (seven);  Fishbum  v.  Burlington  R.  Co.,  127  la.  483  (six);  Kentucky 
Hotel  Co.  V.  Camp,  97  Ky.  424  (seven);  McMahon  v.  Northern  R.  Co.,  39  Md. 
438  (six);  Purcell  v.  Boston  R.  Co.,  211  Mass.  79;  Giaccobe  v.  Boston  R.  Co.,  215 
Mass.  224  (seven);  Godfrey  v.  Boston  R.  Co.,  215  Mass.  432  (six);  Weitzel  v, 
Detroit  R.  Co.,  186  Mich.  7  (nine);  Ritscher  v.  Orange  R.  Co.,  79  N.  J.  Law,  462 
(six);  Verdon  v.  Automobile  Co.,  80  N.  J.  Law,  199  (seven);  Citizen's  R.  Co.  v. 
Bell,  26  Ohio  Cir.  Ct.  R.  691  (seven) ;  Galveston  R.  Co.  v,  Moore,  59  Tex.  64  (six) ; 
Robinson  v.  Cone,  22  Vt.  213  (three) ;  McVoy  v.  Oakes,  91  Wis.  214  (seven) ;  Frasera 
V.  Tramways  Co.,  20  Sc.  L.  R.  192  (six);  Plantza  v.  Glasgow,  47  Sc.  L.  R.  688 
(five)  Accord. 


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SECT,  nij      ILLINOIS  IRON  AND  METAL  COMPANY  V.  WEBER       93 

ILLINOIS   IRON  AND  METAL   COMPANY  v.   WEBER 

Supreme  Court,  Illinois,  April  16,  1902. 

Reported  in  196  Illinois  Reports,  526. 

Appeal  by  original  defendants  from  the  decision  of  the  Appellate 
Court  for  the  First  District;  89  111.  App.  368. 

Plaintiff  was  a  newsboy,  between  eleven  and  twelve  years  old,  and 
his  stand  was  at  Dearborn  and  Monroe  streets  in  the  city  of  Chicago. 
He  was  going  from  his  home,  about  four  miles  distant,  to  his  place  of 
business.  By  permission  of  the  driver,  he  got  on  a  wagon  loaded  with 
brick.  He  stood  up  on  the  rear  of  the  wagon  behind  the  box,  and  held 
on  to  the  hind  end-gate  of  the  wagon.  The  wagon  was  one  of  a  pro- 
cession of  loaded  teams  in  a  street-car  track.  The  next  wagon  behind 
was  owned  by  defendant.  The  end  of  the  pole  of  defendant's  wagon 
struck  the  plaintiff's  leg,  inflicting  a  serious  wound.  Plaintiff  had 
been  in  the  paper  business  since  he  was  nine  years  old,  and  had  been 
in  the  habit  of  riding  down  town  on  wagons. 

A  few  jurisdictions  have  an  absolute  rule  as  to  children  under  seven.  Govern- 
ment R.  Co.  V.  Hanlon,  53  Ala.  70;  Chicago  R.  Co.  v.  Tuohy,  196  111.  410;  Reichle 
p.  Transit  Co.,  241  Pa.  St.  1  (six);  Schnurr  v.  Traction  Co.,  163  Pa.  St.  29;  Dodd 
V.  Gas  Co.,  95  S.  C.  9.  Also  several  jurisdictions  rely  on  presumptions  as  to  chil- 
dren between  seven  and  fourteen  (or  sometimes  twelve).  Birmingham  R.  Co.  v. 
Jones,  146  Ala.  277;  City  v,  McLain,  67  Miss.  4;  Hebert  v.  Hudson  Electric  Co., 
136  App.  Div.  107;  Rolin  v.  Tobacco  Co.,  141  N.  C.  300;  Dowlen  v.  Texas  Power 
Co.  (Tex.  Civ.  App.)  174  S.  W.  674;  City  v.  Shull,  97  Va.  419;  Traction  Co.  v, 
Wilkinson,  101  Va.  394.  See  also  (as  to  children  over  fourteen)  Central  R.  Co.  v. 
Phillips,  91  Ga.  526;  Frauenthal  v.  Laclede  Gas  Co.,  67  Mo.  App.  1;  Murphy 
V.  Perlstein,  73  App.  Div.  256;  Travers  v,  Hartmann,  5  Boyce,  302. 

In  Berdos  v,  Tremont  Mills,  209  Mass.  489,  494,  Rugg,  J.,  says:  "  It  is  common 
knowledge  that  children  imder  the  a^  of  fourteen  arelacking  in  prudence,  fore- 
sight, and  restraint,  and  that  their  curiosity  and  restlessness  have  a  tendency  to  get 
them  into  positions  of  danger.  There  is  some  point  in  every  life  where  these  condi- 
tions are  present  in  such  degree  as  to  deprive  the  child  of  capacity  to  assume  risk 
intelligently,  or  to  be  guilty  of  negligence  consciously.  That  pomt  varies  in  dif- 
ferent children  for  divers  reasons.  There  is  no  hard  and  fast  rule  that  at  any 
particular  age  a  minor  is  presumed  to  be  able  to  comprehend  risks  or  to  be  capable 
of  negligence.  Extreme  cases  can  be  stated  which  obviously  fall  on  one  side  or  the 
other  of  the  line.  In  some  jurisdictions  it  has  been  held  that  prima  facie  a  child 
imder  fourteen  years  of  age  is  presumed  not  to  be  capable  of  contributory  negli- 
^nce.  Tucker  v.  Buffalo  Cotton  Mills,  76  S.  C.  539,  and  cases  cited.  Tutwfler 
Coal,  Coke  &  Iron  Co.  v.  Enslen,  129  Ala.  336.  But  the  sounder  doctrine  seems  to 
be  that  age  ia  an  important  though  not  decisive  factor  in  determining  capacity, 
and  that  the  decision  of  that  question  is  not  helped  or  hampered  by  any  legal 
presumption.    This  is  the  law  of  this  Commonweiilth." 

Compare  Jacobs  v.  Koehler  Co.,  208  N.  Y.  416. 

In  Kyle  v.  Boston  R.  Co.,  215  Mass.  260,  a  boy  five  years  and  eleven  months  old, 
who  ran  in  front  of  an  approaching  car  was  held  negligent  as  a  matter  of  law.  It 
has  generally  been  held  tnat  children  imder  six  are  not  to  be  charged  with  negh- 
^nce.  See  City  v.  Lewis,  155  Ky.  832;  Johnson  v.  City,  164  Mich.  251;  Love  v, 
Detroit  R.  Co.,  170  Mich.  1;  Eskildsen  v.  City,  29  Wash.  583. 

As  to  lower  ages,  see  Mon^n  v.  Bridge  Co.,  5  Dill.  96;  Louisville  R.  Co.  v,  Arp, 
136  Ga.  489;  Indianapolis  R.  Co.  v.  Bordenchecker,  33  Ind.  App.  138:  Fink  v. 
City,  115  la.  641;  Berry  v.  St.  Louis  R.  Co.,  214  Mo.  593.  Compare  Gfardner  v. 
Grace.  1  F.  &  F.  359;  Dorr  v.  Atlantic  R.  Co.,  76  N.  H.  160  (five  and  a  half); 
Campbell  v.  Ord,  11  Sc.  L.  R.  54;  McGregor  v.  Ross,  20  Sc.  L.  R.  462. 


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94       ILLINOIS  IRON  AND  BiETAL  COBiPANY  V.  WEBEft       [CHAP.  II. 

Under  instructions,  the  substance  of  which  is  stated  in  the  opinion, 
the  jury  found  a  verdict  for  plaintiff.^ 

Cartwright,  J.  .  .  .  The  first  two  instructions  each  directed  the 
jury  to  find  the  defendant  guilty,  provided  they  should  beUeve,  from 
the  evidence,  the  existence  of  certain  facts.  One  of  the  essential  facts 
which  the  law  required  to  be  foimd  was  that  the  plaintiff  was  in  the 
exercise  of  ordinary  care  for  his  own  safety,  and  each  of  those  instruc- 
tions informed  the  jury  that  the  fact  was  proved  if  he  was  in  the  exer- 
cise of  ordinary  care  for  a  boy  of  his  age.  They  directed  the  jury  to 
return  a  verdict  for  the  plaintiff  if  they  found  he  was  in  the  exercise  of 
ordinary  care  for  a  boy  of  his  age  and  the  defendant  was  negligent  and 
the  injury  resulted.  That  was  not  a  correct  rule  of  law,  since  the  ques- 
tion of  care  was  not  to  be  determined  alone  by  the  plaintiff's  age,  but 
also  from  his  inteUigence,  experience,  and  ability  to  understand  and 
comprehend  dangers  and  care  for  himself.  The  case  was  one  in  which 
the  defendant  was  entitled  to  correct  instructions  upon  that  question. 
It  was  a  question  whether  plaintiff  was  not  guilty  of  negUgence  in 
riding  where  he  did,  in  a  procession  of  teams,  outside  of  the  box,  be- 
hind the  end-gate  of  the  wagon.  The  position  was  a  dangerous  one, 
not  provided  or  used  for  passengers  or  intended  for  such  use.  Plain- 
tiff had  a  right  to  ride  on  the  wagon  with  the  driver's  consent,  but  it 
was  his  duty  to  use  reasonable  care  for  his  own  safety.  There  was  a 
string  of  heavily  loaded  teams  in  the  car  tracks,  where  it  was  difficult, 
if  not  impossible,  to  turn  out,  and  the  difficulty  and  danger  in  stopping 
when  one  of  a  procession  stops  is  matter  of  common  knowledge.  Cases 
cited  as  to  the  Uability  of  common  carriers  of  passengers  where  a  car 
is  full  and  a  passenger  rides  upon  the  platform  have  no  bearing  on 
this  question.  Passengers  are  accustomed  to  be  upon  platforms  and 
are  sometimes  compelled  to  ride  there,  and  different  rules  are  applied 
to  a  conunon  carrier  from  those  governing  parties  not  in  that  relation. 
There  was  no  necessity  whatever  for  the  plaintiff  assuming  the  posi- 
tion that  he  did.  These  facts  were  not  controverted  or  in  dispute,  but 
are  gathered  from  his  own  testimony.  If  the  damage  to  the  plaintiff 
was  caused  by  his  own  negUgence  in  assuming  such  a  position,  he 
could  not  recover.  In  determining  that  question  his  age  was  to  be 
taken  into  account,  but  it  could  not  be  said,  as  a  matter  of  law,  that  ^ 
he  was  too  young  to  exercise  any  care  for  his  personal  safety  or  that 
he  was  incapable  of  negligence.  Unquestionably,  he  was  capable  of 
exercising  some  degree  of  judgment  and  discretion  and  some  degree  of 
care  for  his  own  safety.  He  had  Uved  in  the  city  and  had  been  engaged 
in  business,  and  was  accustomed  to  ride  on  wagons.  Judge  Thomp- 
son, in  his  Commentaries  on  Law  of  Negligence  (vol.  I,  sect.  309), 
says:  "  Two  lads  of  equal  age  and  natural  capacity,  one  of  them 
raised  in  the  country  and  the  other  in  the  city,  might  approach  a 

*  Statement  abridged.    Only  so  much  of  the  opinion  is  given  as  relates  to  a 
single  point. 


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SECT.  III.]  BXJLLOCIC  V.  BABCOCK  95 

given  danger;  and  the  one  would  be  perfectly  competent  to  care  for 
hnnself  while  the  other  would  be  helpless  in  the  face  of  it.  Therefore, 
the  capacity,  the  inteUigence,  the  knowledge,  the  experience,  and  the 
discretion  of  the  child  are  always  evidentiary  circumstances,  —  cir- 
cimistances  with  reference  to  which  each  party  has  the  right  to  intro- 
duce evidence,  which  evidence  is  to  be  considered  by  the  jury."  The 
rule  established  by  oiu-  own  decisions  is,  that  age  is  not  the  only  ele- 
ment to  be  considered,  but  that  inteUigence,  capacity,  and  experience 
are  also  to  be  taken  into  accoimt.  Weick  v.  Lander,  76  111.  93;  City 
of  Chicago  v.  Keefe,  114  Id.  222;  Illinois  Central  Railroad  Company 
V.  Slater,  129  Id.  91. 

Reversed  and  remanded.^ 


BULLOCK  V.  BABCOCK 

Supreme  Court  op  Judicature,  New  York,  October,  1829. 

Reported  in  3  Wenddl,  391. 

This  was  an  action  of  trespass,  assault,  and  battery. 

In  1816,  the  defendant,  then  being  about  twelve  years  of  age,  shoot- 
ing an  arrow  from  A  bow,  struck  the  plaintiff  and  put  out  one  of  his 
eyes,  the  plaintiff  being  then  between  nine  and  ten  years  of  age.  The 
plaintiff  and  defendant  were  schoohnates.  The  boys  attending  the 
school  were  assembled  near  the  school-house.  One  of  them  had  a  bow 
and  arrow,  with  which  he  and  the  defendant  had  been  shooting  at  a 
mark.  Some  remark  was  made  by  the  plaintiff,  when  the  defendant 
said,  "  I  will  shoot  you,"  and  took  the  bow  and  arrow  from  another 
boy  who  then  held  it.  The  plaintiff  ran  into  the  school-house  and  hid 
behind  a  fire-board  standing  before  the  fire-place  in  the  school-room. 
The  defendant  followed  to  the  door  of  the  school-room,  and  saying, 

»  Garrison  v.  St.  Louis  R.  Co.,  92  Ark.  437;  De  Soto  Co.  v.  Hill,  179  Ala.  186 
(personal  standard  applied  to  a  boy  brighter  than  his  age) ;  JoUimore  v,  Connecti- 
cut Co„  86  Conn.  314;  Herrington  v.  aty,  125  Ga.  68;  Elk  Mills  v.  Grant,  140  Ga. 
727;  Keller  v.  Gaskill,  9  Ind.  App.  670;  Cole  v.  Searfoes,  49  Ind.  App.  334;  Louis- 
ville R.  Co.  V.  Allnutt,  150  Ky.  831;  Van  Natta  v.  Peoples  R.  Co.,  133  Mo.  13; 
Spillane  v.  Missouri  R.  Co^  135  Mo.  414;  Moeller  v.  United  R.  Co.,  242  Mo.  721; 
David  V.  West  Jersey  R.  Co.,  84  N.  J.  Law,  685;  Marius  v.  Motor  Co.,  146  App. 
Div.  608;  Gigoux  v.  County,  73  Or.  212;  Bridger  v,  Asheville  R.  Co.,  27  S.  C.  456; 
North  Texas  Construction  Co.  v.  Bostick,  98  Tex.  239;  Kvne  v.  Southern  R.  Co., 
41  Utah,  368;  Quinn  v.  Ross  Car  Co.,  157  Wis.  543  Accord.  As  to  experience,  see 
Stem  p.  Ben^eck,  161  Mo.  146. 

Section  2901  of  the  Georgia  Civil  Code  is  as  follows:  — 

*^  Due  care  in  a  child  of  tender  years  is  such  care  as  its  capacitor,  mental  and 
physical,  fits  it  for  exercising  in  the  actual  circumstances  of  the  occasion  and  situa- 
tion imder  investigation." 

In  Harrington  o.  Mayor,  125  Ga.  58, 60,  Lumpkin,  J.,  said:  **  The  average  child 
of  its  own  age  is  not  the  standard  by  which  to  measure  its  legal  diligence  with 
exactness.  '  Such  care  as  the  capacity  of  the  particular  child  enables  it  to  use 
natiu-ally  and  reasonably,  is  what  the  law  requires.'  "  Compare  Bleckley,  C.  J.,  in 
Western  &  Atlantic  R.  Co.  v.  Young,  81  Ga.  397,  416,  417. 


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96  BULLOCK  V.  BABCOCK  [CHAP.  U. 

"  See  me  shoot  that  basket,"  discharged  the  arrow.  At  that  moment 
the  plaintiff  raised  his  head  above  the  fire-board,  and  the  arrow  struck 
him.  There  was  a  basket  standing  on  a  desk  in  the  direction  that  the 
arrow  was  aimed.  When  the  arrow  was  shot,  there  were  a  nmnber  of 
boys  in  the  school-room.  There  had  been  no  quarrel  between  the  boys. 
The  plaintiff,  however,  on  entering  the  school-house  was  frightened, 
and  said  he  was  afraid  he  would  be  shot.  The  plaintiff  suffered  great 
pain  for  two  months,  became  blind  of  one  eye,  and  for  five  years  was 
disabled  from  attending  school  in  consequence  of  the  weakness  of  sight 
of  the  other  eye.  His  mother  became  a  widow;  and  when  the  plain- 
tiff was  able  to  attend  school,  her  poverty  prevented  his  receiving  an 
ordinary  education.  This  suit  was  commenced  in  1827,  within  a  year 
after  the  plaintiff  attained  his  age. 

The  judge  charged  the  jiuy  that  the  shooting  the  arrow  in  the 
school-room  where  there  were  a  number  of  boys  assembled  was  an 
unlawful  act;  that  it  appeared  to  him  to  have  been,  at  the  least, 
grossly  negligent  and  unjustifiable;  and  that,  if  the  jury  thought  so, 
they  ought  to  find  a  verdict  for  the  plaintiff,  with  damages.  The 
defendant  excepted.  The  jury  found  for  the  plaintiff,  with  $180 
damages,  and  a  motion  was  now  made  to  set  aside  the  verdict. 

By  the  Court,  Marcy,  J.  It  is  not,  I  apprehend,  necessary  for  us 
to  say  whether  the  judge  erred  or  not  in  his  remark  to  the  jury  that, 
under  the  circumstances  of  the  case,  the  act  of  the  defendant  in  shoot- 
ing the  arrow  in  the  school-room,  where  there  were  a  number  of  schol- 
ars, was  not  lawful;  for,  if  the  act  in  itself  was  lawful,  and  there  was 
not  a  proper  care  to  guard  against  consequences  injurious  to  others, 
the  actor  must  be  held  responsible  for  such  consequences. 

In  ordinary  cases,  if  the  injury  is  not  the  effect  of  an  unavoidable 
accident,  the  person  by  whom  it  is  inflicted  is  liable  to  respond  in  dam- 
ages to  the  siiflferer.  Where,  in  shooting  at  butts,  the  archer's  arrow 
glanced  and  struck  another,  it  was  holden  to  be  a  trespass.  Year- 
Book,  21  H.  VII.  fol.  28.  So  where  a  number  of  persons  were  lawfully 
exercising  themselves  at  arms,  one,  whose  gun  accidentally  went  off, 
was  held  liable  in  trespass  for  the  injury  occasioned  by  the  accident. 
Weaver  v.  Ward.  Where,  in  a  dark  night,  the  defendant  got  on  the 
wrong  side  of  the  road,  and  an  injiuy  ensued  to  the  person  of  the  plain- 
tiff, trespass  for  the  damage  was  sustained.  Leame  v.  Bray,  3  East, 
693.  It  is  decided  in  the  case  of  Wakeman  v.  Robinson,  if  the  accident 
happen  entirely  without  the  fault  of  the  defendant,  or  any  blame  being 
imputable  to  him,  an  action  will  not  he.  In  that  case,  the  blame  im- 
putable to  the  defendant  was,  that,  his  horse  being  young  and  spirited, 
he  used  him  without  a  ciu-b  rein;  that  in  his  alarm  he  probably  pulled 
the  wrong  rein;  and  that  he  ought  to  have  continued  on  in  a  straight 
course.  The  blame  fairly  imputed  to  the  defendant,  it  will  be  per- 
ceived, must  have  been  slight  indeed,  as  it  certainly  was  in  the  case  of 
the  injury  done  by  the  glancing  of  the  arrow  when  shooting  at  a  mark 


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SECT,  ni.]  BULLOCK  V.  BABCOCK  97 

(a  lawful  act),  and  by  the  accidental  discharge  of  the  musket  at  a 
training;  and  yet,  in  each  of  these  cases,  an  action  for  the  injury  was 
maintained.  Unless  a  rule  is  to  be  appUed  to  this  case  different  from 
that  appUcable  to  a  transaction  between  adults,  the  proof  was  most 
abundant  to  charge  the  defendant  with  the  consequences  of  the  injury. 
Infants,  in  the  same  manner  as  adults,  are  hable  for  trespass,  slander, 
assault,  &c.^   Bing.  on  Infancy,  110;  8  T.  R.  336;  16  Mass.  Rep.  389; 

^  The  liability  of  an  infant  for  his  torts  is  universally  recognized. 

Trespass.  Y.  B.  35  Hen.  VI.  f.  11,  pi.  18;  Bumard  v,  H^gis,  14  C.  B.  n.  s.  45; 
Nealt;.Gillett,23Conn.437;  Wilson  v.  Garrard.  59  lU.  51 ;  Peterson  v.  HafFner,  69 
Ind.  130;  Scott  v,  Watson,  46  Me.  362;  Marshall  v.  Wing,  50  Me.  62;  Sikes  v. 
Johnson,  16  Mass.  389;  School  District  v.  Bragdon,  23  N.  H.  507;  Campbell  v. 
Stakes,  2  Wend.  137;  Hartfield  v.  Roper,  21  Wend.  615,  620;  Tifft  v.  Tifft,  4 
Denio,  175;  Conklin  v,  Thompeon,  29  Barb.  218;  Huchtme  v,  E^igel,  17  Wis.  230; 
Vosburg  V.  Putney.  80  Wis.  523;  Vosburg  v.  Putney,  86  Wis.  278. 

Conversion.  Mills  v.  Graham,  1  B.  &  P.  N.  R.  140;  Bristow  v.  Clark,  1  Esp.  171 ; 
Vasse  V.  Smith,  6  Cranch,  226;  Oliver  v.  McClellan,  21  Ala.  675;  Ashlock  v.  Vivell, 
29  111.  App.  388;  Lewis  v.  Littlefield,  15  Me.  233;  Caswell  v.  Parker,  96  Me.  39 
(semble);  Homer  v.  Thwing,  3  Pick.  492;  Walker  v.  Davis,  1  Gray,  506;  Wheeler 
Co.  V.  Jacobs,  2  Misc.  236;  Green  v.  Spernr,  16  Vt.  390;  Baxter  v.  Bush,  29  Vt.  465. 

DeceU.    Fitts  v.  HaU,  9  N.  H.  441;  Word  v.  Vance,  1  N.  &  McC.  197. 

Defamation.  Hodsman  v.  Grissell,  Noy,  129;  Drane  v,  Pawley,  8  Ky.  Law  Rep. 
530;  Fears  v.  Riley,  148  Mo.  49. 

Negligence.  Jennings  v.  Rundall,  8  T.  R.  335;  Dixon  v.  Bell,  1  Stark.  287; 
Marsh  v.  Loader,  14  C.  B.  n.  s.  535;  Latt  v.  Booth,  3  Car.  &.  K.  292;  Humphrey  t;. 
Douglass,  10  Vt.  71  Accord. 

In  Scott  V.  Watson,  swpra^  Appleton.  J.,  said:  "  Nor  is  his  infancv  any  defence, 
for  infants  are  hable  tor  torts.  .  .  .  The  parent  is  not  answerable  for  the  torts  of 
his  minor  child,  conunitted  in  his  absence  and  without  his  authority  or  approval, 
but  the  minor  is  answerable  therefor.  Tifft  v.  Tifft,  4  Denio,  177.  The  minor  is  not 
exempt  from  liabihty,  though  the  trespass  was  conunitted  by  the  express  conmiand 
of  the  father.    Humphrey  v.  Douglass,  10  Vt.  71. 

**  Nor  can  the  defendant  derive  any  support  from  the  scriptural  injunction  to 
children  of  obedience  to  their  parents,  invoked  in  defence.  No  such  construction 
can  be  given  to  the  command,  ^  Children,  obey  your  parents  in  the  Lord,  for  this  is 
right,'  as  to  sanction  or  justify  the  trespass  of  the  son  upon  the  land  of  another,  and 
t&  asportation  of  his  crops,  even  thou^  done  by  the  express  commands  of  ius 
father.  The  defence  is  as  unsound  in  its  theology  as  it  is  baseless  in  its  law." 
gmith  V.  Kron.  96  N.  C.  392,  397;  O'Leary  v.  Brooks,  7  N.  D.  554;  Humphrey  v. 
r)oi«lass,  10  Vt.  71;  Huchting  v.  Engel,  17  Wis.  230  Acctyrd.] 

May,  J.,  dissented,  saving:  "  I  am  not  quite  satisfied  with  either  the  law  or  the 
theologv  of  the  opinion  m  this  case.  That  sins  of  ignorance  may  be  winked  at,  is 
both  a  aictate  of  reason  and  of  Scripture.  It  is  true,  as  a  genertJ  rule,  that  infants 
who  have  arrived  at  the  age  of  discretion  are  liable  for  their  tortious  acts.  But.  for 
the  protection  of  infants,  ought  not  the  rule  to  be  limited  to  cases  where  the  imant 
acts  under  such  circumstances  that  he  must  know  or  he  presumed  to  know  that  the 
acts  which  he  commits  are  unauthorized  and  wrons,  wnen  it  appears  that  in  the 
commission  of  the  acts  he  was  imder  the  control  and  direction  of  his  father  ?  Will 
not  an  opposite  doctrine  tend  to  encourage  disobedience  in  the  child,  and  thus  be 
subversive  of  the  best  interests  of  the  community  7  Will  it  not  also  tend  to  subject 
him  to  embarrassment  and  insolvency  when  he  shall  arrive  at  f uU  age  7  If  all  the 
members  of  a  family  imder  age  are  to  be  held  liable  in  trespass  or  trover  for  the  food 
which  they  eat,  when  that  food  is  in  fact  the  property  of  another,  but,  being  set  be- 
fore them,  they  partake  of  it,  in  isnorance  of  such  fact^  by  the  command  or  direc- 
tion of  the  parent,  and  imder  the  belief  that  it  is  his,  will  not  such  a  doctrine  be  in 
conflict  witn  the  principle  that  the  common  law  is  intended  as  a  shield  and  protec- 
tion against  the  improvidence  of  infancy  7  While  the  decided  cases  upon  this 
subject  seem  to  be  limited  to  cases  of  contract,  is  there  not  the  same  reason  for  ex- 
tending it,  and  applying  it  to  cases  like  the  one  before  us  7  In  all  the  cases  which  I 
have  examined  m  which  infants  have  been  held  liable,  the  proof  shows  acts  of 


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98        METROPOLITAN  RAILWAY  COMPANY  V.  JACKSON    [CHAP.  II. 

2  Inst.  328.  Where  infants  are  the  actors,  that  might  probably  be 
considered  an  unavoidable  accident  which  woxild  not  be  so  considered 
where  the  actors  are  adults;  but  such  a  distinction,  if  it  exists,  does 
not  apply  to  this  case.  The  liabiUty  to  answer  in  damages  for  tres- 
pass does  not  depend  upon  the  mind  or  capacity  of  the  actors;  for 
idiots  and  limatics,  as  we  see  by  the  case  reported  in  Hobart,  are 
responsible  in  the  action  of  trespass  for  injuries  inflicted  by  them. 
1  Chit.  PI,  66.  Motion  for  a  new  trial  denied.^ 


Section  IV 
Pboof  OF  Neolioence  * 

METROPOLITAN  RAILWAY  COMPANY  v.  JACKSON 

In  the  House  of  Lords,  December  13, 1877. 

Reported  in  3  Appeal  dues,  193. 

The  Lord  Chancellor  (Lord  Cairns) :  •  — 

My  Lords,  in  this  case  an  action  was  brought  by  the  respondent 
against  the  MetropoUtan  Railway  Company  for  negligence  in  not 
carrying  the  respondent  safely  as  a  passenger  on  the  railway,  and  for 
injuring  his  thumb  by  the  act  of  one  of  the  appellants'  servants  in 
suddenly  and  violently  closing  the  door  of  the  railway  carriage. 

The  question  is,  Was  there  at  the  trial  any  evidence  of  this  negli- 
gence which  ought  to  have  been  left  to  the  jury  ?  The  Court  of  Com- 
mon Pleas,  consisting  of  Lord  Coleridge,  Mr.  Justice  Brett,  and  Mr. 
Justice  Grove,  were  of  opinion  that  there  was  such  evidence.  The 
Court  of  Appeal  was  equally  divided;  the  Lord  Chief  Justice  and 
Lord  Justice  of  Appeal  Amphlett  holding  that  there  was  evidence,  the 
Lord  Chief  Baron  and  Lord  Justice  of  Appeal  Bramwell  holding  that 
there  was  not. 

positive  wrong  committed  under  circumstances  where  the  infant  must  have  known 
the  nature  and  character  of  his  acts.  If  the  doctrines  of  the  opinion  are  to  prevail 
in  a  case  like  this,  then  the  conmion  law  is  but  the  revival  of  the  old  doctrine  that 
the  parents,  by  eating  sour  grapes,  have  set  the  children's  teeth  on  edge.  The 
rule  that  a  servant  who  acts  in  ignorance  of  the  rights  of  his  principal  is  to  be  held 
liable  for  his  acts,  does  not  fall  within  the  principles  for  which  I  contend." 

»  Welch  V.  Durand,  36  CJonn.  182;  Flinn  v.  State,  24  Ind.  286;  Peterson  v.  HaflF- 
ner,  59  Ind.  130:  Mercer  v.  Corbin,  117  Ind.  450;  Commonwealth  v.  Lister,  15 
Phila.  405;  Vosburg  v.  Putney,  80  Wis.  523;  Vosburg  v.  Putney,  86  Wis.  278 
Accord. 

'  The  topics  dealt  with  in  this  section  do  not  concern  the  substantive  law  of 
tort.  They  fall  rather  under  the  heads  of  procedure  and  evidence.  But,  without 
some  knowledge  of  these  particular  subjects,  it  is  difficult  to  understand  the  ground 
of  decision  in  some  of  the  cases  on  the  general  subject  of  negligence. 

'  Statement,  arguments,  and  parts  of  opinions  omitted. 


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SECT.  IV.]    METROPOUTAN  RAILWAY  COMPANY  V.  JACKSON        99 

The  facts  of  the  case  are  very  short.  The  respondent  in  the  eve- 
ning of  the  18th  of  July,  1872,  took  a  third-class  ticket  from  Moorgate 
Street  to  Westboume  Park,  and  got  into  a  third-class  compartment; 
the  compartment  was  gradually  filled  up,  and  when  it  left  King^s 
Cross  all  the  seats  were  occupied.  At  Gower  Street  Station  three 
persons  got  in  and  were  obliged  to  stand  up.  There  was  no  evidence 
to  show  that  the  attention  of  the  company's  servants  was  drawn  to 
the  fact  of  an  extra  number  being  in  the  compartment;  but  there  was 
evidence  that  the  respondent  remonstrated  at  their  getting  in  with  the 
persons  so  getting  in,  and  a  witness  who  travelled  in  the  same  com- 
partment stated  that  he  did  not  see  a  guard  or  porter  at  Gower  Street. 

At  Portland  Road,  the  ne^  station,  the  three  extra  passengers  still 
remained  standing  up  in  the  compartment.  The  door  of  the  compart- 
ment was  opened  and  then  shut;  but  there  was  no  evidence  to  show 
by  whom  either  act  was  done.  Just  as  the  train  was  starting,  from 
Portland  Road  there  was  a  rush,%nd  the  door  of  the  compartment  was 
opened  a  second  time  by  persons  tiering  to  get  in.  The  respondent, 
who  had  up  to  this  time  kept  his  seat,  partly  rose  and  held  up  his 
hand  to  prevent  any  more  passengers  coining  in.  After  the  train  had 
moved,  a  porter  pushed  away  the  people  who  were  trying  to  get  in, 
and  slammed  the  door  to,  just  as  the  train  was  entering  the  tunnel.  At 
that  very  moment  the  respondent,  by  the  motion  of  the  train,  fell  for- 
ward and  put  his  hand  upon  one  of  the  hinges  of  the  carriage  door  to 
save  himself,  and  at  that  moment,  by  the  door  being  slammed  to,  the 
respondent's  thumb  was  caught  and  injured. 

The  case  as  to  negligence  having  been  left  to  the  jury,  the  jury 
found  a  verdict  for  the  respondent  with  £50  damages.  There  was  not, 
at  your  lordships'  bar,  any  serious  controversy  as  to  the  principles 
applicable  to  a  case  of  this  description.  The  judge  has  a  certain  duty 
to  discharge,  and  the  jtLrors  have  another  and  a  different  duty.  The 
judge  has  to  say  whether  any  facts  have  been  established  by  evidence 
from  which  negligence  may  he  reasonably  inferred;  the  jtux)rs  have  to 
say  whether,  from  those  facts,  when  submitted  to  them,  negligence 
ought  to  he  inferred.  It  is,  in  my  opinion,  of  the  greatest  importance 
in  the  administration  of  justice  that  these  separate  functions  should 
be  maintained,  and  should  be  maintained  dLstinct.  It  would  be  a 
serious  inroad  on  the  province  of  the  jury,  if ,  in  a  case  where  there 
are  facts  from  which  negligence  may  reasonably  be  inferred,  the  judge 
were  to  withdraw  the  case  from  the  jury  upon  the  groimd  that,  in  his 
opinion,  negligence  ought  not  to  be  inferred;  and  it  would,  on  the 
other  hand,  place  in  the  hands  of  the  jtLrors  a  power  which  might  be 
exercised  in  the  most  arbitrary  manner,  if  they  were  at  liberty  to  hold 
that  negligence  might  be  inferred  from  any  state  of  facts  whatever. 
To  take  the  instance  of  actions  against  railway  companies :  a  company 
might  be  unpopular,  unpunctual,  and  irregular  in  its  service;  badly 
equipped  as  to  its  staff;  unaccommodating  to  the  public;  notorious. 


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100      METROPOLITAN  RAILWAY  COMPANY  V.  JACKSON    [CHAP.  H, 

perhaps  for  accidents  occurring  on  the  line;  and  when  an  action  was 
brou^t  for  the  consequences  of  an  accident,  jurors,  if  left  to  them- 
selves, might,  upon  evidence  of  general  carelessness,  find  a  verdict 
against  the  company  in  a  case  where  the  company  was  really  blame- 
less. It  may  be  said  that  this  would  be  set  ri^t  by  an  application  to 
the  court  in  banc,  on  the  ground  that  the  verdict  was  against  evidence; 
but  it  is  to  be  observed  that  such  an  application,  even  if  successful, 
would  only  result  in  a  new  trial;  and  on  a  second  trial,  and  even  on 
subsequent  trials,  the  same  thing  might  happen  again. 

In  the  present  case  I  am  boimd  to  say  that  I  do  not  find  any  evi- 
dence from  which,  in  my  opinion,  negligence  could  reasonably  be 
inferred.  The  negligence  must  in  some  way  connect  itself,  or  be  con- 
nected by  evidence,  with  the  accident.  It  must  be,  if  I  might  invent 
an  expression  founded  upon  a  phrase  in  the  civil  law,  incuria  dans 
locum  injuriae.  In  the  present  case  there  was  no  doubt  negligence  in 
the  company's  servants,  in  allowing  more  passengers  than  the  proper 
number  to  get  in  at  the  Gower  Street  Station;  and  it  may  also  have 
been  negligence  if  they  saw  these  supernumerary  passengers,  or  if 
they  ought  to  have  seen  them,  at  Portland  Road,  not  to  have  then  re- 
moved them;  but  there  is  nothing,  in  my  opinion,  in  this  negligence 
which  connects  itself  with  the  accident  that  took  place.  If,  when  the 
train  was  leaving  Portland  Road,  the  overcrowding  had  any  effect  on 
the  movements  of  the  respondent;  if  it  had  any  effect  on  the  particular 
portion  of  the  carriage  where  he  was  sitting,  if  it  made  him  less  a 
master  of  his  actions  when  he  stood  up  or  when  he  fell  forward,  this 
ought  to  have  been  made  matter  of  evidence;  but  no  evidence  of  the 
kind  was  given. 

As  regards  what  took  place  at  Portland  Road,  I  am  equally  unable 
to  see  any  evidence  of  negligence  connected  with  the  accident,  or  in- 
deed of  any  negligence  whatever.  The  officials  cannot,  in  my  opinion, 
be  held  bound  to  prevent  intending  passengers  on  the  platform  open- 
ing a  carriage  door  with  a  view  of  looking  or  getting  into  the  carriage. 
They  are  bound  to  have  a  staff  which  would  be  able  to  prevent  such 
persons  getting  in  where  the  carriage  was  already  full,  and  this  staff 
they  had,  for  the  case  finds  that  the  porter  pushed  away  the  persons 
who  were  attempting  to  get  in.  So  also  with  regard  to  shutting  the 
door;  these  persons  had  opened  the  door,  and  thereupon  it  was  not 
only  proper  but  necessary  that  the  door  should  be  shut  by  the  porter; 
and,  as  the  train  was  on  the  point  of  passing  into  a  tunnel,  he  could 
not  shut  it  otherwise  than  quickly  or  in  this  sense  violently.  .  .  . 

Lord  Blackburn:  — 

My  Lords,  I  also  am  of  opinion  that  in  this  case  the  judgment 
should  be  reversed,  and  a  nonsuit  entered.  On  a  trial  by  jury  it  is,  I 
conceive,  undoubted  that  the  facts  are  for  the  jury,  and  the  law  for 
the  judge.  It  is  not,  however,  in  many  cases  practicable  completely 
to  sever  the  law  from  the  facts. 


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SECT.  IV.]    METROPOUTAN  RAILWAY  COMPANY  V.  JACKSON      101 

But  I  think  it  has  always  been  considered  a  question  of  law  to  be 
determined  by  the  judge,  subject,  of  course,  to  review  whether  there  is 
evidence  which,  if  it  is  beUeved,  and  the  counter-evidence,  if  any,  not 
beUeved,  would  establish  the  facts  in  controversy.  It  is  for  the  jury 
to  say  whether  and  how  far  the  evidence  is  to  be  bfeUeved.  And  if  the 
facts,  as  to  which  evidence  is  given,  are  such  that  from  them  a  farther 
inference  of  fact  may  legitimately  be  drawn,  it  is  for  the  jury  to  say 
whether  that  inference  is  to  be  drawn  or  not.  But  it  is  for  the  judge 
to  determine,  subject  to  review,  as  a  matter  of  law  whether  from  those 
facts  that  farther  inference  may  legitimately  be  drawn. 

My  Lords,  in  deUvering  the  considered  judgment  of  the  Exchequer 
Chamber  in  Ryder  v.  Wombwell,  Law  Rep.  4  Ex.  32,  38,  Wilier,  J., 
says:  ''Such  a  question  is  one  of  mixed  law  and  fact;  insofarasitisa 
question  of  fact,  it  must  be  determined  by  a  jury,  subject  no  doubt  to 
tixe  control  of  the  court,  who  may  set  aside  the  verdict,  and  submit  the 
question  to  the  decision  of  another  jury;  but  there  is  in  every  case  a 
preliminary  question,  which  is  one  of  law,  viz.,  whether  there  is  any 
evidence  on  which  the  jury  could  properly  find  the  verdict  for  the 
party  on  whom  the  onus  of  proof  lies.  If  there  is  not,  the  judge  ought 
to  withdraw  the  question  from  the  jury,  and  direct  a  nonsuit  if  the 
oniLS  is  on  the  plaintiff,  or  direct  a  verdict  for  the  plaintiff  if  the  onus 
is  on  the  defendant.  It  was  formerly  considered  necessary  in  all  cases 
to  leave  the  question  to  the  jury,  if  there  was  any  evidence,  even  a 
sciptilla,  in  support  of  the  case;  but  it  is  now  settled  that  the  question 
for  the  judge  (subject,  of  coxu^e,  to  review),  is,  as  is  stated  by  Maule, 
J.,  in  Jewell  v.  Parr,  13  C.  B.  909,  916, '  not  whether  there  is  Uterally 
no  evidence,  but  whether  there  is  none  that  ought  reasonably  to 
satisfy  the  jury  that  the  fact  sought  to  be  proved  is  established.'  " 

He  afterwards  observes,  Law  Rep.  4  Ex.  42,  very  truly  in  my 
opinion,  "  There  is  no  doubt  a  possibUity  in  all  cases  where  the  judges 
have  to  determine  whether  there  is  evidence  on  which  the  jury  may 
reasonably  find  a  fact,  that  the  judges  may  differ  in  opinion,  and  it 
is  possible  that  the  majority  may  be  wrong.  Indeed,  whenever  a  de- 
cision of  the  court  below  on  such  a  point  is  reversed,  the  majority  must 
have  been  so  either  in  the  court  above  or  the  court  below.  This  is  an 
infirmity  which  must  affect  all  tribunals." 

I  quite  agree  that  this  is  so,  and  it  is  an  evil.  But  I  think  it  a  far 
slighter  evil  than  it  would  be  to  leave  in  the  hands  of  the  jury  a  power 
which  might  be  exercised  in  the  most  arbitrary  manner.  .  .  . 

[The  concurring  opinions  of  Lord  O'Hagan  and  Lord  Gordon  are 
omitted.] 

Judgment  given  for  the  plaintiff  in  the  court  below  reversed,  and  a 
nonsuit  to  be  entered.^ 

*  This  decision  and  Bridges  v.  North  London  R.  Co.,  L.  R.  7  H.  L.  213,  put  an 
end  in  England  to  a  conflict  of  authority  as  to  the  power  of  the  judge  to  witndraw 
the  case  from  the  jury  where  there  was  an  "  invitation  to  alight "  or  "  slanuning 


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102  KEARNEY  V.  LONDON  R.  CO.         [CHAP,  n. 

KEARNEY  v.  LONDON,  BRIGHTON  &  SOUTH 
COAST  R.  CO. 

In  thp  Queen's  Bench,  June  16, 1870. 
Reported  in  Law  Reports,  5  Queen*8  Bench,  411. 

Declaration,  that  the  defendants  were  possessed  of  a  bridge  over 
a  certain  public  highway,  and  it  became  their  duty  to  maintain  and 
keep  in  repair  the  bridge,  so  that  it  should  not  be  injurious  to  any 
person  passing  under  it;  yet  the  defendants  so  negligently  maintained 
the  bridge,  that  while  the  plaintiff  was  lawfully  passing  imder  the 
bridge  a  portion  of  the  materials  of  the  bridge  fell  down  and  injured 
the  plaintiff. 

the  door  "  of  a  compartment  car.  See  the  cases  cited  in  21  Halsbury,  Laws  of 
England,  445. 

A  like  question,  much  discussed  in  the  United  States,  is:  A  man,  without  look- 
ing or  listening,  attempts  to  cross  the  track  of  a  steam  railway,  and  is  hit  by  a 
nedi^ntly  managed  engine.  Should  the  judge  rule  that  crossing  without  lookmg 
and  hstenmg  (or  crossing  without  stopping,  looking,  and  listening)  is,  as  matter  of 
law.  negligent  conduct  f  Or  should  the  ^udge  teU  the  lury  that  such  conduct  is 
evidence  m>m  which  negligence  may  be  mferred,  and  that  it  is  for  tiiem  to  say 
whether  they  do  infer  it  7  As  to  this,  there  is  a  conflict  of  authority.  See  discus- 
sion and  collected  cases  in  3  Elliott  on  Railroads  (1st  ed.)  §  1167;  2  Thompson, 
Commentaries  on  the  Law  of  Negligence,  Chap.  52,  Article  2,  {§  1637-1661, 
especially  S§  1640,  1649,  1650,  1653;  33  Cyc.  1116  ff.;  Beach  on  Contributory 
Nedigence  (3d  ed.)  §§  181,  182. 

Other  like  questions  arise  in  case  of  alighting  from  a  moving  car:  Puget  Sound 
R.  Co.  V,  Felt,  181  Fed.  938;  Birmingham  R.  Co.  v.  Girod,  164  Ala.  10;  St.  Louis 
R.  Co.  V,  Plott,  108  Ark.  292;  Carr  v.  Eel  River  R.  Co.,  98  Cal.  366;  Coursey  v. 
Southern  R.  Co.,  113  Ga.  297-  Ardison  v.  Illinois  R.  Co.,  249  lU.  300;  I/OuisviUe  R. 
Co.  V,  Cnmk.  119  Ind.  542;  Walters  v.  Missouri  R.  Co.,  82  Kan.  739:  Hayden  v. 
Chicago  R.  Co„  160  Ky.  836;  Cumberland  R.  Co.  v.  Maugans,  61  Md.  53:  Street 
V.  Chicago  R.  Co.,  124  Minn.  517;  Johnson  v.  St.  Joseph  R.  Co.,  143  Mi).  App. 
376;  Wfllis  v.  Metropolitan  R.  Co.,  63  App.  Div.  332;  Pennsylvania  R.  Co.  v. 
Lyons,  129  Pa.  St.  113;  Kearney  v.  Seaboard  R.  Co.J58  N.  C.  521;  San  Antonio 
Traction  Co.  v.  Badgett,  (Tex.  Civ.  App.)  158  S.  W.  803:  Gaines  v.  Ogden  R. 
Co.,  44  Utah,  512;  Breeden  v.  Seattle  R.  O.,  60  Wash.  522. 

Boarding  moving  car:  Central  R.  Co.  v.  Hingson,  186  Ala.  40;  South  Chicago 
R.  Co.  V.  Dufresne,  200  111.  456;  Chicago  Traction  Co.  v,  Lundahl,  215  111.  289; 
Pence  v.  Wabash  R.  Co.,  116  la.  279;  Jonas  v.  South  Covington  R.  Co.,  162  Ky. 
171;  Mabry  v,  Boston  R.  Co.,  214  Mass.  463;  Foley  v.  Detroit  R.  Co.,  179  Mich. 
586;  HuU  v.  Minneapolis  R.  Co.,  116  Minn.  349;  Nolan  v.  Metropolitan  R.  Co., 
250  Mo.  602. 

Standing  on  platform  or  running  board:  Texas  R.  Co.  t;.  Laoey,  185  Fed.  225; 
Central  R.  Co.  v.  Brown,  165  Ala.  493;  Holloway  v,  Pasadena  R.  Co.,  130  Cal.  177; 
Augusta  R.  Co.  v.  Snider,  118  Ga.  146;  Chicago  R.  Co.  v.  Newell,  212  111.  332; 
Math  V.  Chicago  R.  Co.,  243  111.  114;  Louisville  R.  Co.  v.  Stillwell,  142  Ky.  330; 
Blair  v.  Lewiston  R.  Co.,  110  Me.  235;  Olund  v.  Worcester  R.  Co.,  206  Mass.  544; 
Heshion  v.  Boston  R.  Co.,  208  Mass.  117;  Wheeler  v.  Boston  R.  Co.,  220  Mass. 
298;  Lacey  v,  Minneapolis  R.  Co.,  118  Minn.  301 :  Setzler  v.  Metropolitan  R.  Co.. 
227  Mo.  454;  Trussell  v.  Traction  Co.,  79  N.  J.  Law,  533;  Ward  v.  International 
R.  Co„  206  N.  Y.  83:  Edwards  v.  New  Jersey  R.  O.,  144  App.  Div.  554;  German- 
town  R.  O.  V,  WaUing.  97  Pa.  St.  55;  Brice  v.  Southern  R.  Co.,  85  S.  C.  216. 

Part  of  body  protruding  from  car:  Georgetown  R.  Co.  v.  Smith,  25  App.  D.  C. 
259;  Clerc  v.  Morgan's  R.  Co.,  107  La.  370;  Lange  v.  Metropolitan  R.  Co..  151 
Mo.  App.  500;  Kuttner  v.  Central  R.  Co.,  80  N.  J.  Law,  11;  CJoller  v,  Fonda  R. 
Co.,  110  App.  Div.  620. 


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SECT.  IVj        KEARNEY  V.  LONDON  R.  CO.  103 

Plea:  Not  guilty.    Issue  joined. 

At  the  trial  before  HaDnen,  J.;  at  the  sittings  in  Middlesex  after 
Michaelmas  Term,  1869,  it  appeared,  according  to  the  plaintiff's  evi- 
dence, that  the  plaintiff,  on  the  20th  of  January,  1869,  was  passing 
along  the  Blue  Anchor  Road,  Bermondsey,  under  the  railway  bridge 
of  the  defendants,  when  a  brick  fell  and  injured  him  on  the  shoulder. 
A  train  had  passed  just  previously,  but  whether  it  was  a  train  of  the 
defendants,  or  of  another  company  (whose  trains  also  pass  over  the 
bridge),  did  not  appear.  The  bridge  had  been  built  three  years,  and  is 
an  iron  girder  bridge  resting  on  iron  piers,  on  one  side,  and  on  a  per- 
pendicular brick  wall  with  pilasters,  on  the  other,  and  the  brick  fell 
from  the  top  of  one  of  the  pilasters,  where  one  of  the  girders  rested  on 
the  pilaster. 

Tlie  defendants  called  no  witnesses,^  but  rested  their  defence  on 
there  being  no  evidence  of  negUgence  in  the  defendants;  and  also  on 
the  ground  that  the  injury  to  the  plaintiff's  shoulder  was  not  really 
caused  by  the  falling  of  the  brick. 

As  to  the  evidence  of  negligence,  the  learned  judge  told  the  jury 
that  if  they  thought  the  bare  circumstance  of  a  brick  falling  out  was 
not  evidence  of  negligence,  they  would  find  for  the  defendants;  if  they 
thought  otherwise,  for  the  pkdntiff;  and  the  court  would  determine 
whether  there  was  legal  evidence  of  negUgence  or  not,  as  to  which  he 
should  reserve  leave  to  the  defendants  to  move. 

The  jiuy  found  a  verdict  for  the  plaintiff  for  251. 

A  rule  was  obtained  to  enter  a  nonsuit,  on  the  groimd  that  there  was 
no  evidence  of  negUgence  to  leave  to  the  jury.* 

CocKBURN,  C.  J.  As  we  have  had  the  whole  matter  carefuUy 
brought  before  us,  with  the  cases  bearing  upon  the  subject,  I  think  we 
should  gain  nothing  by  taking  further  time  to  consider  it;  and,  there- 
fore, although  I  regret  to  say  we  are  not  unanimous  upon  the  point,  I 
think  it  is  better  to  dispose  of  the  case  at  once. 

My  own  opinion  is,  that  this  is  a  case  to  which  the  principle  res  ipsa 
loquitur  is  appUcable,  though  it  is  certainly  as  weak  a  case  as  can  weU 
be  conceived  in  which  that  maxim  could  be  taken  to  apply.  But  I 
think  the  maxim  is  appUcable;  and  my  reason  for  saying  so  is  this. 
The  company  who  have  constructed  this  bridge  were  bound  to  con- 
struct it  in  a  proper  manner,  and  to  use  all  reasonable  care  and  diU- 
gence  in  keeping  it  in  such  a  state  of  repair  that  no  damage  from  its 
defective  condition  should  occur  to  those  who  passed  under  it,  the 
pubUc  having  a  right  to  pass  under  it.  Now  we  have  the  fact  that  a 
brick  falls  out  of  this  structure,  and  injures  the  plaintiff.  The  proxi- 
mate cause  appears  to  have  been  the  looseness  of  the  brick,  and  the 
vibration  of  a  train  passing  over  the  bridge,  acting  upon  the  defective 

»  But  see  L.  R.  6  Q.  B.  760-761. 

'  Argumenta  omitted*  also  the  concurring  opinion  of  Lush,  J.,  and  the  dissent- 
ing opinion  of  Hannen,  J. 


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104  KEARNEY  V.   LONDON  R.  CO.         [CHAP.  II, 

condition  of  the  brick.  It  is  clear,  therefore,  that  the  structure  in 
reference  to  this  brick  was  out  of  repair.  It  is  clear  that  it  was  incum- 
bent on  the  defendants  to  use  reasonable  care  and  diligence,  and  I 
think  the  brick  being  loose  affords,  prima  facie,  a  presumption  that 
they  had  not  used  reasonable  care  and  diligence.  It  is  true  that  it  is 
possible  that,  from  changes  in  the  temperature,  a  brick  might  get  into 
the  condition  in  which  this  brickwork  appears  to  have  been  from 
causes  operating  so  speedily  as  to  prevent  the  possibiUty  of  any  dili- 
gence and  care  applied  to  such  a  purpose  intervening  in  due  time,  so  as 
to  prevent  an  accident.  But  inasmuch  as  our  experience  of  these 
things  is,  that  bricks  do  not  fall  out  when  brickwork  is  kept  in  a 
proper  state  of  repair,  I  think  where  an  accident  of  this  sort  happens, 
the  presumption  is  that  it  is  not  the  frost  of  a  single  night,  or  of  many 
nights,  that  would  cause  such  a  change  in  the  state  of  this  brickwork 
as  that  a  brick  would  fall  out  in  this  way;  and  it  must  be  presumed 
that  there  was  not  that  inspection  and  that  care  on  the  part  of  the 
defendants  which  it  was  their  duty  to  apply.  On  the  other  hand,  I 
admit  most  readily  that  a  very  little  evidence  would  have  suflSced  to 
rebut  the  presumption  which  arises  from  the  manifestly  defective 
state  of  this  brickwork.  It  might  have  been  shown  that  many  causes, 
over  which  the  defendants  had  no  control,  might  cause  this  defect  in 
so  short  a  time  as  that  it  could  not  be  reasonably  expected  that  they 
should  have  inspected  it  in  the  interval.  They  might,  if  they  were 
able,  have  shown  that  they  had  inspected  the  bridge  continually,  or 
that  such  a  state  of  things  could  not  be  anticipated,  and  had  never 
been  heard  of  or  known  before.  Anything  which  tended  to  rebut  the 
presumption  arising  from  an  accident  caused  by  the  defective  condi- 
tion of  the  brickwork,  which  it  was  their  duty  to  keep  in  a  proper 
condition  of  repair,  even  if  such  evidence  were  but  slight,  might  have 
sufficed;  but  the  defendants  chose  to  leave  it  on  the  naked  state  of 
facts  proved  by  the  plaintiff.  Upon  that  naked  state  of  facts  it  is  not 
imimportant  to  see  what  might  have  been  the  cause  of  the  defective 
condition  of  this  brickwork.  We  have  the  fact,  the  datum,  that  the 
brickwork  was  in  a  defective  condition,  and  we  have  it  admitted  that 
it  was  the  defendants'  duty  to  use  reasonable  care  and  diligence  to 
keep  it  in  a  proper  condition.  Where  it  is  the  duty  of  persons  to  do 
their  best  to  keep  premises,  or  a  structure,  of  whatever  kind  it  may  be, 
in  a  proper  condition,  and  we  find  it  out  of  condition,  and  an  accident 
happens  therefrom,  it  is  incumbent  upon  them  to  show  that  they  used 
that  reasonable  care  and  diligence  which  they  were  boimd  to  use,  and 
the  absence  of  which  it  seems  to  me  may  fairly  be  presumed  from  the 
fact  that  there  was  the  defect  from  which  the  accident  has  arisen. 
Therefore,  there  was  some  evidence  to  go  to  the  jiuy,  however  slight 
it  may  have  been,  of  this  accident  having  arisen  from  the  negligence 
of  the  defendants;  and  it  was  incumbent  on  the  defendants  to  give 


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SECT.  IV.]        KEARNEY  V.  LONDON  R.  CO.  105 

evidence  rebutting  the  inference  arising  from  the  undisputed  facts; 
that  they  have  not  done,  and  I  therefore  think  this  rule  must  be  dis- 
charged. 

[Lush,  J.,  delivered  a  concurring  opinion.  Hannen,  J.,  delivered 
a  dissenting  opinion.]  Rule  discharaed.^ 

*  AflSnned  in  the  Exchequer  Chamber,  L.  R.  6  Q.  B.  759. 

Byrne  v.  Boadle,  2  H.  &  C.  722;  Scott  v.  London  Docks  Co.,  3  H.  &  C.  596; 
Skinner  v.  London  R.  Co.,  5  Ex.  787;  The  Joseph  D.  Thomas,  81  Fed.  578;  Has- 
torf  V.  Hudson  River  Co^  110  Fed.  669;  Cincinnati  R.  Co.  v.  South  Fork  Coal  Co., 
139  Fed.  528;  Kahn  v.  Cap  Co.,  139  Cal.  340;  Armour  v.  Golkowska,  202  111.  144; 
Talgp  V.  Hockett,  55  Ind.  App.  303;  Nicoll  v.  Sweet,  163  la.  683;  Melvin  v.  Penn- 
^Ivania  Steel  Co.,  180  Mass.  196;  Hull  v.  Berkshire  R.  Co.,  217  Mass.  361; 
Cleary  v,  Cavanaugh,  219  Mass.  281;  Scharff  v.  Southern  Construction  Co.,  115 
Mo.  App.  157;  Pratt  v,  Missouri  R.  Co.,  139  Mo.  App.  502;  Mullen  v.  St.  John, 
57  N.  Y.  567;  Wolf  v,  American  Society,  164  N.  Y.  30;  Grififen  v.  Manice,  166 
N.  Y.  188;  Kennedy  t?.  McAllaster,  31  App.  Div.  453;  Scheider  v.  American 
Bridge  Co.,  78  App.  Div.  163;  Travers  v.  Murray,  87  App.  Div.  552;  Connor  v, 
Koch,  89  App.  Div.  33;  Larkin  v.  Reid  Co.,  161  App.  Div.  77:  Papazian  v. 
Baumgartner,  49  Misc.  244;  Barnes  v.  Automobile  Co.,  32  Ohio  Cir.  Ct.  R.  233; 
Muskogee  Traction  Co.  v.  Mclntire,  37  Okl.  684;  Edwards  v,  Manufactiu^rs'  Co., 
27  R.  I.  248;  Patterson  v.  Brewing  Co.,  16  S.  D.  33;  Richmond  R.  Co.  v.  Hudgins, 
100  Va.  409;  Gibson  v.  Chicago  R.  Co.,  61  Wash.  639:  Carroll  v,  Chicago  R.  Co., 
99  Wis.  399;  Klitzke  v,  Webb,  120  Wis.  254;  Schmidt  v.  Johnson  Co.,  145  Wis. 
49rSnyder  v.  Wheeling  Electrical  Co.,  43  W.  Va.  661  Accord. 

Where  the  declaration  aJleges  ne^gence  and  sets  forth  the  nature  and  particu- 
lars of  the  accident  but  not  the  particulars  of  the  alleged  negUgence,  plaintifif  may 
rely  upon  this  doctrine^  if  the  accident  is  of  such  a  kina  as  to  indicate  that  it  would 
not  have  happened  without  negligence  on  the  part  of  the  defendant.  James  v, 
Boston  R.  Co.,  204  Mass.  158. 

The  doctrine  applies  only  in  the  absence  of  explanation.  Cook  v.  Newhall,  213 
Mass.  392.  The  inference  may  be  met  by  defendant's  showing  the  real  cause  of  the 
accident.  Nawrocki  v.  Chicago  R.  Co.,  156  111.  App.  563;  Parsons  ».  Hecla  Iron 
Works,  186  Mass.  221;  Cohen  v.  Farmers'  Co.,  70  Misc.  548;  Steams  v.  Spinning 
Co.,  184  Pa.  St.  519;  Scarpelli  v.  Washington  Power  Co.,  63  Wash.  18.  By  plaintiff 
showing  by  his  own  witnesses  just  how  tne  accident  happened.  Buckland  v.  New 
York  R.  Co.,  181  Mass.  3.  Or  by  defendant's  showing  that  reasonable  care  was 
employed  to  prevent  all  brobable  sources  of  accident.  Thompson  v,  St.  Louis  R. 
Co.,  243  Mo.  336,  355;  Sweeney  v.  Edison  Co.,  158  App.  Div.  449. 

**  There  are  many  cases  that  hold  that  an  unexplained  accident  with  a  machine, 
not  liable  to  occur  if  such  machine  was  properlv  constructed  and  in  a  proper  state 
of  repair,  is  evidence  of  negligence;  as  in  Spaulding  v.  C.  &  N.  W.  R.  Co.,  30  Wis. 
llOj  where  it  was  held  that  the  escape  of  fire  from  a  passing  locomotive  engine, 
sufficient  to  cause  dama^,  raised  a  presumption  of  improper  construction  or  in- 
sufficient repair  or  negligent  handling  of  such  engine.  'To  the  same  effect  are 
Cummings  v.  Nat.  Furnace  Co.,  60  Wis.  603;  Kurz  &  Huttenlocher  Ice  Co.  v. 
M.  &  N.  R.  Co.,  84  Wis.  171;  Stacy  v.  M.,  L.  S.  &  W.  R.  Co.,  85  Wis.  225;  MuUen 
V.  St.  John,  57  N.  Y.  567:  Volkmar  v.  Manhattan  R.  Co.,  134  N.  Y.  418:  McCar- 
ragher  v.  Rogers,  120  N.  Y.  526.  and  many  others  that  might  be  cited.  Such  cases 
lay  down  a  very  well-recognizea  principle  in  the  law  of  negligence,  but  do  not  .  .  . 
conffict  in  the  slightest  degree  with  numerous  authorities  that  go  on  another  prin- 
ciple, just  as  well-recognized  and  firmly  established^  to  the  effect  that  undisputed 
proof  of  freedom  of  the  machine  from  all  discoverable  defects,  either  in  construc- 
tion or  repair,  effectually  overcomes  any  mere  inference  or  presumption  arising 
from  the  happening  of  the  accident,  so  as  to  leave  no  question  in  that  regard  for 
the  junr;  as  in  Spaulding  w.  C.  &  N.  W.  R.  Co.,  33  Wis.  582,  where  this  court  held 
the  inference  that  a  locomotive  engine  was  defective,  arising  merely  from  the 
escape  of  fire  therefrom  sufficient  to  cause  damage,  rebutted  by  conclusive  proof 
that  the  engine  was  free  from  discoverable  defects,  so  as  to  leave  nothing  on  that 
point  for  the  consideration  of  a  jiuy."  Marshall,  J.,  Vorbrich  v.  Geuder  Co.,  96 
Wis.  277,  284.    See  Green  v.  Urban  ConstructiDg  Co.,  106  App.  Div.  460  Accord. 


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106  MARCEAU  V.  RUTLAND  R.  CO.  [CHAP.  II. 

MARCEAU  V.  RUTLAND  R.  CO. 

Ck)XJRT  OP  Appeals,  New  York,  April  28,  1914. 
Reported  in  211  New  York  ReparU,  203. 

Werner,  J.  The  question  presented  by  this  appeal  is  whether  the 
case  is  one  in  which  it  is  proper  to  apply  the  maxim  r€3  ipsa  loqui- 
tur.^    .  .  . 

The  phrase  res  ipsa  loquitur,  literally  translated,  means  that  the 
thing  or  affair  speaks  for  itself.  It  is  merely  a  short  way  of  saying 
that  the  circmnstances  attendant  upon  an  accident  are  themselves  of 
such  a  character  as  to  justify  the  conclusion  that  the  accident  was 
caused  by  negligence.  The  in|gj;ence  of  negligence  is  deducible,  not 
/  from  the  mere  happening  of  the  sjbcident,  but  from  the  attendant  cir- 
cumstances. "  It  is  not  that,  in  any  case,  negligence  can  be  assumed 
from  the  mere  fact  of  an  accident  and  an  injury;  but  in  these  cases 
the  surrounding  circumstances  which  are  necessarily  brought  into 
view  by  showing  how  the  accident  occurred,  contain,  without  further 
proof,  suflScient  evidence  of  the  defendant's  duty  and  of  his  neglect 
to  perform  it.  The  fact  of  the  casualty  and  the  attendant  circum- 
stances may  themselves  furnish  all  the  proof  of  negligence  that  the 
injured  person  is  able  to  offer,  or  that  it  is  necessary  to  offer."  Shear- 
man &  Redfield  on  Negligence,  §  59.  This  section  was  quoted  with 
approval  by  Judge  CuUen  in  writing  for  this  court  in  Griffen  v.  Manice, 
166  N.  Y.  188, 193,  and  in  that  connection  he  expressed  the  view  that 
"  the  application  of  the  principle  depends  on  the  circumstances  and 
character  of  the  occurrence,  and  not  on  the  relation  between  the 
parties,  except  indirectly  so  far  as  that  relation  defines  the  measure  of 
duty  imposed  on  the  defendant."  He  quoted  also  from  the  opinion 
of  Judge  Danforth  in  Breen  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  109  N.  Y.  297, 
300,  in  which  the  author  said  "  there  must  be  reasonable  evidence  of 
negligence,  but  when  the^iT?g''^«Vff|ni];  the  tojm^vJs^sho^mTo-be 
under  the  control  oi  a  aei'endant,  and  the  accident  is  sucE~as,  m  the 
ordinary  course  of  business,  does  not  happen  if  reasonable  care  is  used, 
it  does,  injhe  absence  of  eyp^an^^^^"  ^y  ^^^  ^^^*"^^npt,  «ff^^^  «"ffi- 
cient  evidence  that  the  accident  arose  from  want  of  care  on  itspart." 
In  the  (iriffen  case  Judge  Cullen  followed  this  quotation  fromlhe 
Breen  case,  with  the  pertinent  observation  that  he  could  see  no  reason 
"  why  the  rule  thus  declared  is  not  applicable  to  all  cases  or  why  the 
probative  force  of  the  evidence  depends  on  the  relation  of  the  parties. 
Of  course,  the  relation  of  the  parties  may  determine  the  fact  to  be 
proved,  whether  it  be  want  of  the  highest  care  or  only  want  of  ordi- 
nary care,  and,  doubtless,  circumstantial  evidence,  like  direct  evidence, 
may  be  insuiBBcient  as  a  matter  of  law  to  establish  the  want  of  ordi- 
nary care,  though  suflScient  to  prove  absence  of  the  highest  degree  of 

^  The  arguments  of  counsel  and  a  part  of  the  opinion  are  omitted. 


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SECT.  IV.]  '       MARCEAU  V.  RUTLAND  R.  CO.  107 

diligence.  But  the  question  in  every  case  is  the  same  whether  the 
circumstances  surrounding  the  occurrence  are  such  as  to  justify  the 
jury  in  inferring  the  fact  in  issue."  Thus  we  see  that  this  court  is 
definitely  committed  to  the  view  that  the  application  of  the  maxim 
res  ipsa  loquitur  depends,  not  upon  the  relation  of  the  injured  person 
to  the  person  or  party  who  is  charged  with  causing  the  injury ^ut 
upon  the  explanatory  circumstances  which  surround  the  happening  of 
tfie  accident.  Ine  rule  thus  expredSM  has  beeu  lucugnijsed  in  the 
recent  cases  of  Robinson  v.  Consolidated  Gas  Co.,  194  N.  Y.  37,  41, 
and  Hardie  v.  Boland  Co.,  205  N.  Y.  336,  341,  and  has  been  followed 
in  many  cases  in  the  several  Appellate  Divisions.^ 

While  it  is,  therefore,  the  settled  law  that  the  maxim  is  applicable 
to  any  case  where  the  facts  warrant  its  application,  it  is  apparent  that 
the  employee  who  invokes  it  against  his  employer  encounters  difficul- 
ties that  do  not  hamper  the  wayfarer  in  a  pubUc  place  or  the  passenger 
in  a  common  carrier's  conveyance.  The  man  who  was  lawfully  upon 
the  highway  need  go  no  farther  in  the  first  instance  than  to  prove  ttiat 
he  was  hit  by  a  falling  wall  (Mullen  v.  St.  John,  57  N.  Y.  567)  or  by 
a  flying  missile  (Wolf  v.  Am.  Tract  Soc,  164  N.  Y.  30,  33;  Hogan  v. 
Manh.  Ry.  Co.,  149  N.  Y.  23;  Volkmar  v.  Manh.  Ry.  Co.,  134  N.  Y. 
418),  and  that  the  thing  by  which  he  was  injured  came  from  the 
premises  of  the  defendant.  The  passenger  who  was  for  the  time  imder 
the  protection  of  a  common  carrier  needs  only  to  show  that  the  train 
upon  which  he  was  riding  left  the  track  (Seyboldt  v.  N.  Y.,  L.  E.  & 
W.  R.  R.  Co.,  95  N.  Y.  562,  565)  or  collided  with  another  car  or  train 
(Loudoun  V.  Eighth  Ave.  R.  R.  Co.,  162  N.  Y.  380)  and  thus  caused 
his  injuries.  The  reason  for  the  rule  in  such  cases  is  not  far  to  seek. 
The  owner  of  a  building  or  structure  must  exercise  a  high  degree  of 
care  to  so  keep  it  that  the  wayfarer  on  the  public  streets  shall  not  be 
injured  by  falling  walls  or  missiles.  The  common  carrier  is  under  the 
'  strict  duty  to  its  passenger  to  keep  its  cars  and  tracks  in  a  safe  con- 
dition, and  in  all  such  cases  where  the  plaintiff  "  has  shown  a  situation  . 
which  could  not  have  been  produced  except  by  the  operation  of  ab-  ^ 
normal  causes,  the  onus  then  rests  upon  the  defendant  to  prove  that 
the  injury  was  caused  without  his  fault."  Seyboldt  v,  N.  Y.,  L.  E.  & 
W.  R.  R.  Co.,  95  N.  Y.  565,  568.  Ordmarily  walls  do  not  fall,  missiles  . 
do  not  fly  and  trains  are  not  derailed  when  those  in  control  are  in  the  \ 
exercise  of  the  requisite  care,  and,  therefore,  the  inference  of  negligence 
follows  in  logical  sequence. 

In  the  nature  of  things  the  injured  employee  who  sues  his  employer 
must  present  a  much  higher  degree  of  proof  than  is  necessary  in  the  * 
case  of  a  wa3rfarer  or  passenger.   It  is  to  be  emphasized,  however,  that 

*  There  is  a  conflict  of  authority  upon  the  question  whether  the  maxim  res  ipsa 
loquitur  is  applicable  in  an  action  by  a  servant  against  a  master.  See  cases  col- 
lected in  an  elaborate  note,  6  Lawyers'  Reports,  ^notated,  New  Series,  337-363. 
See  also  2  Labatt  on  Master  &  Servant,  §§  833,  834,  835;  especially  authorities 
cited  in  §  834,  note  8. 


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108  MAKCEAU  V.  RUTLAND  B.  CO.        -  [CHAP.  II. 

the  difference  is  one  of  degree  and  not  of  kind.  This  more  onerous 
burden  which  is  placed  upon  the  employee  is  the  natural  concomitant 
of  the  relation  of  the  parties  and  of  their  resultant  obUgations.  The 
employer  is  bound  merely  to  the  exercise  of  reasonable  care  in  provid- 
ing his  employee  with  a  safe  place  in  which  to  work,  with  proper  and 
axiequate  tools,  appliances  and  machinery,  and  with  fellow-employees 
competent  for  the  tasks  to  which  they  are  assigned.  If  the  injured  em- 
ployee sues  at  common  law  and  seeks  to  invoke  the  maxim,  he  must 
necessarily  make  proof  of  facts  and  circumstances  which,  under  the 
common  law,  exclude  every  inference  except  that  of  the  employer's 
negligence.  This  means  that  the  employee  must  himself  be  free  from 
the  imputation  of  contributory  negligence;  that  he  is  not  the  victim 
of  the  negUgence  of  co-employees;  that  the  injury  is  not  the  result  of 
some  risk  either  inherent  in  the  occupation  or  volwntarjly  assumed  by 
the  employee;  and  that  the  accident  is  one  which,  in  the  ordinary 
course  of  events,  could  not  have  happened  if  the  employer  had  exer- 
cised the  degree  of  care  required  of  him  by  the  common  law.  The 
same  rule  appUes,  in  a  modified  degree,  where  the  employee  sues  under 
the  Employers'  Liability  Act,  as  the  plaintiff  in  this  case  has  done.  In 
such  a  case  the  plaintiff  must  establish  facts  and  circumstances  which, 
under  the  statute,  would  entitle  him  to  recover  in  the  absence  of  a 
sufficient  explanation  by  the  defendant,  absolving  him  from  the  im- 
putation of  negUgence.  The  proof  must  not  be  conjectural  or  specula- 
tive, but  must  consist  of  evidence  which,  tested  by  the  ordinary  rules  of 
experience  and  observation,  points  to  the  single  conclusion  that  the  em- 
ployer's omission  of  a  duty  which  he  owes  to  his  employee  was  the  sole 
efficient  cause  of  the  accident.  Ferrick  v.  Eidlitz,  195  N.  Y.  248,  252. 
The  next  question,  in  logical  progression,  is  whether  the  plaintiff 
has  established  his  case  by  facts  and  circumstances  which  negative  the 
existence  of  any  cause  for  the  accident  by  which  he  was  injured,  save 
the  negligence  of  the  defendant.  The  plaintiff,  as  has  been  stated,  was 
a  locomotive  fireman  in  the  employ  of  the  defendant.  On  the  25th  of 
March,  1911,  he  and  his  engineer  left  Malone  on  engine  No.  2055  for 
Moira  to  assist  in  bringing  back  a  train.  After  arriving  at  Moira  the 
engine  was  turned  around  and  coupled  to  another  engine  already  at- 
tached to  a  train,  and  a  start  was  made  for  the  return  to  Malone.  Sud- 
denly there  occurred  an  explosion  in  the  fire  box  of  the  engine  which 
drove  the  doors  from  their  fastenings,  and  expelled  fire  and  boiling 
water  into  the  cab,  and  burned  and  scalded  the  plaintiff,  and  blew  him 
out  of  the  cab  to  the  ground  with  such  force  as  to  bruise  him.  Al- 
though this  accident  was  of  an  unusual  character,  it  will  be  assumed 
for  the  purposes  of  this  discussion  that  it  was  not  such  an  occurrence 
as  would,  in  and  of  itself,  justify  the  application  of  the  maxim  res  ipsa 
loquitur  J  for  the  engine  was  then  in  the  custody  and  control  of  the 
plaintiff  and  his  engineer.  The  mere  happening  of  the  accident  did 
not  necessarily  exclude  the  inference  that  it  might  have  been  caused 
by  the  negligence  of  the  plaintiff,  or  without  any  negligence  at  all. 


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SECT.  IV.]  MARCEATJ  V.  RUTLAND  R.  CO.  109 

It  was,  therefore,  necessary  for  the  plaintiflf  to  supplement  the  proof 
of  the  accident  with  evidence  tending  to  show  that  it  resulted  from 
the  failure  of  the  defendant  to  exercise  ordinary  care,  either  in  the 
selection  of  the  engine  or  in  keeping  it  in  reasonably  safe  repair.  In 
that  behalf  thfe  record  discloses  a  number  of  facts  and  circumstances 
that  bear  upon  the  accident  very  directly  and  cogently.  It  appears 
that  the  train  crews  employed  by  the  defendant  have  nothing  to  do 
with  the  care  and  inspection  of  the  internal  and  hidden  parts  of  the 
engines.  That  work  is  committed  to  a  special  corps  of  employees 
whose  place  of  duty  is  in  the  hostelry  where  the  engines  are  housed, 
made  ready  for  service,  and  timied  over  to  the  crews  designated  to 
take  them  out.  The  engineers  are  charged  with  the  duty  of  making  a 
report  of  each  trip  which  shall  specify  any  needed  repairs  that  come 
imder  their  observation.  The  engineer  Francey,  who  was  on  engine 
2055  at  the  time  of  the  accident,  testified  that  he  had  used  it  on  various 
specified  dates  during  the  month  preceding  the  day  of  the  accident, 
and  that  he  had  orally  reported  it  as  leaking,  although  he  had  been 
turning  in  written  reports  which  made  no  mention  of  the  fact.  While 
such  a  circumstance  might  ordinarily  affect  the  credibility  of  a  witness, 
all  doubt  upon  this  subject  is  dissipated  by  the  testimony  of  the  de- 
fendant's witnesses  showing  that  the  engine  was  inspected  by  the  fore- 
man of  boiler  makers  on  or  about  March  21st,  1911,  and  found  to  be 
in  a  leaky  condition.  Several  of  defendant's  witnesses  testified  that 
the  engine  had  been  in  the  shop  at  various  times  during  the  month  on 
account  of  leaking  flues,  and  tiiat  the  last  repairs  in  this  regard  were 
made  two  or  tiiree  dajrs  before  the  accident. 

After  the  accident  an  examination  of  the  engine  was  made  which 
revealed  the  probable  cause  of  the  trouble.  One  of  the  flues,  which 
extend  longitudinally  through  the  boiler  from  the  rear  flue  sheet  to  an- 
other flue  sheet  next  the  smoke  stack,  had  been  pushed  or  blown  out 
of  its  socket  in  the  rear  flue  sheet  so  that  the  forward  end  of  the  flue 
projected  several  feet  beyond  the  forward  flue  sheet;  thus  leaving  an 
opening  in  the  rear  flue  sheet  through  which  the  boiling  water  and 
steam  were  admitted  into  the  fire  pot  where  the  explosion  was  gener- 
ated. There  were  342  of  these  flues  which  were  each  ij  inches  in 
diameter  and  about  16  feet  in  length.  These  flues  are  "  safe  ended  " 
into  the  flue  sheets  so  that  when  they  are  in  perfect  condition  there  can 
be  no  leakage  through  them  from  the  boiler.  The  particular  flue  that 
was  blown  or  driven  out  of  its  place  was  in  the  bottom  row  of  flues 
where  there  could  be  no  inspection  without  taking  out  the  "  brick 
arch,"  and  that  could  be  done  only  when  the  boiler  was  not  in  steam. 
There  can  be  no  doubt  that  the  explosion  by  which  the  plaintifif  was 
injured  was  due  immediately  to  the  displacement  of  the  flue;  but  the 
cause  of  the  dislodgement  of  the  flue  is  not  so  clear.  It  is  a  matter  of 
common  knowledge  that  steam,  like  electricity,  is  a  capricious  and 
fickle  agency  which  sometimes  causes  unexpected  and  unexplainable 
accidents.    If  the  plaintiff's  case  were  wholly  dependent  upon  evidence 


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110  MARCEAU  V.  RUTLAND  R.  CO.  [CHAP.  U. 

merely  showing  the  happening  of  this  explosion,  it  might  be  necessary 
to  hold  that  he  had  not  proved  enough  to  give  him  the  benefit  of  the 
maxim  which  he  invokes.  The  ultimate  question,  therefore,  is  whether 
he  has  the  support  of  surrounding  circumstances  which  show  that  the 
accident  was  of  "  such  a  character  as  does  not  ordinarily  occur  where 
the  party  charged  with  responsibiUty  has  exercised  the  degree  of  care 
and  caution  required  by  law  to  avoid  such  a  mishap."  Henson  v, 
Lehigh  Valley  R.  R.  Co.,  194  N.  Y.  205,  211.  We  think  he  has.  The 
defendant's  foreman  testified  that  if  a  flue  is  loose  at  both  ends  it 
would  be  liable  to  move  from  the  pressure,  and  that  if  a  flue  is  loose  at 
one  end  it  is  more  liable  to  move  than  one  that  is  not  loose.  It  is  un- 
disputed that  defendant's  chief  boiler  man  inspected  this  engine  on  the 
21st  or  22d  of  March  and  found  that  a  number  of  flues,  about  twenty- 
five,  were  leaking.  These  were  repaired,  but  the  boiler  still  leaked  on 
the  24th,  and  the  explosion  occurred  on  the  25th.  Since  the  defend- 
ant's experts  had  found  loose  and  leaking  flues  which  they  repaired, 
it  is  reasonable  to  infer  that  the  displacement  of  another  flue  within 
two  or  three  days  was  attributable  to  the  same  cause.  This  was  not  a 
part  of  the  locomotive  over  which  the  plaintiff  had  any  control,  or  in 
respect  of  which  he  had,  so  far  as  the  record  discloses,  any  duty  or 
knowledge.  The  work  of  inspection  and  repair  was  the  work  of  the 
defendant,  and  any  failure  in  this  regard  was  its  failure.  The  almost 
immediate  recurrence  of  a  condition  that  had  led  to  inspection  and 
repair  was  circumstantial  evidence  which  tended  to  show  that  the 
work  had  not  been  thoroughly  done.  We  think,  therefore,  that  the 
plaintiff  was  entitled  to  rest  upon  the  rule  of  res  ipsa  loquitur,  and  that 
in  the  absence  of  a  satisfactory  and  convincing  explanation  by  the 
defendant,  the  plaintiff  was  entitled  to  recover. 

Counsel  for  the  defendant  contends  that  such  an  explanation  has 
been  made.  In  that  regard  it  appears  that  the  locomotive  was  of  a 
modem  and  standard  type;  that  for  several  months  from  January, 
1910,  it  was  in  the  main  shops  of  the  defendant  at  Rutland,  where  it 
was  given  a  thorough  overhauling  and  sent  out  in  perfect  condition; 
that  the  complaints  of  leakage  made  in  the  early  part  of  1911  were  fol- 
lowed by  prompt  inspection  and  complete  repair.  This  was  an  expla- 
nation well  calculated  indeed  to  create  a  serious  issue  of  fact,  but  we 
think  it  would  be  going  too  far  to  hold  that  it  was  conclusive  as  matter 
of  law.  The  limitations  of  the  rule  of  res  ipsa  loquitur,  and  the  legal 
effect  of  defendant's  explanation,  were  well  stated  in  the  charge  to  the 
jury,  and  we  think  the  judgment  entered  on  the  verdict  must  stand. 

The  judgment  should  be  afltoned,  with  costs. 

WiLLARD   BaRTLETT,    Ch.    J.,    COLLIN,    CUDDEBACK,   HOGAN,   and 

Cardozo,  JJ.,  concur;  Hornbloweh,  J.,  not  sitting. 

Judgment  affirmed,^ 

*  "  There  was  much  discussion  by  counsel  of  the  doctrine  of  res  ipsa  loquitur  and 
its  relevancy  to  the  facts  of  this  case.    The  thing  speaks  for  itseu,  is  a  principle 


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SECT.  IV.]     WING  V.  LONDON  GENERAL  OMNIBUS  CO.  Ill 

WING  V.  LONDON  GENERAL  OMNIBUS  CO. 

In  the  Court  of  Appeal,  July  16,  1909. 

Reported  in  [1909]  2  King's  Bench,  652. 

Fletcher  Moulton,  L.  J.,  read  the  following  judgment:  ^  —  This 
is  an  appeal  from  the  judgment  delivered  by  the  judge  of  the  county 
court  of  Middlesex  held  in  Clerkenwell  in  an  action  in  which  the  plain- 
tiff sued  for  damages  resulting  from  an  accident  which  occurred  while 
she  was  a  passenger  in  a  motor  omnibus  belonging  to  the  defendants. 

The  plahitiff 's  claim  was  based  on  two  alternative  grounds :  (1)  that 
the  defendants'  servants,  whilst  in  charge  of  the  motor  omnibus,  were 
guilty  of  negligence  causing  the  accident,  and  (2)  that  the  motor 
omnibus  was  itself  a  dangerous  machine,  and  that  the  defendants  were 
liable  for  having  placed  it  upon  the  roadway,  thereby  creating  a 
nuisance,  whereby  the  plaintiff  suffered  damage. 

applied  by  the  law  where  under  the  circumstances  shown  the  accident  presumably 
would  not  have  occurred  in  the  use  of  a  machine  if  due  care  had  been  exercised,  or, 
in  the  case  of  an  elevator,  when  in  its  normal  operation  after  due  inspection.  The 
doctrine  does  not  dispense  with  the  requirement  that  the  party  who  alleges  negli- 
gence must  prove  the  fact,  but  relates  only  to  the  mode  of  proving  it.  The  fact  of 
the  accident  furnishes  merely  some  evidence  to  go  to  the  juiy,  which  requires  the 
defendant '  to  go  forward  with  his  proof.'  The  rule  of  res  ipsa  hquUvr  does  not 
relieve  the  plaintiff  of  the  burden  of  showing  negligence,  nor  does  it  raise  any  pre- 
sumption in  his  favor.  Whether  the  defendant  introduces  evidence  or  not,  the 
plaintiff  in  this  case  will  not  be  entitled  to  a  verdict  unless  he  satisfies  the  jury  by 
the  preponderance  of  the  evidence  that  his  injuries  were  caused  by  a  defect  in  the 
elevator  attributable  to  the  defendant's  neshgence.  The  law  attaches  no  special 
weight,  as  proof,  to  the  fact  of  an  accident,  but  simply  holds  it  to  be  sufficient  for 
the  consideration  of  the  jury  even  in  the  absence  of  any  additional  evidoice. 
Womble  v.  Grocery  Co.,  135  N.  C.  474;  2  Labatt  on  Master  &  Servant.  §  834;  4 
Wigmore  on  Evidence,  §  2509.  In  all  other  respects,  the  parties  stand  odTore  the 
jury  just  as  if  there  was  no  such  rule.  The  judge  should  carefully  instruct  the  jury 
as  to  the  application  of  the  principle,  so  that  tney  will  not  give  to  the  fact  of  t^ 
accident  any  greater  artificial  wei^t  than  the  law  imparts  to  it.  Wigmore,  in  the 
section  just  dted,  says  the  followmg  considerations  ouj^t  to  limit  the  doctrine  of 
res  ipm  JoquUtar:  1.  The  apparatus  must  be  such  that  m  the  ordinary  instance  no 
injurious  operation  is  to  be  expected  unless  from  a  careless  construction,  inspection, 
or  user;  2.  Both  inspection  and  user  must  have  been,  at  the  time  of  the  injury, 
in  the  control  of  the  party  charged;  3.  Th^  injurious  occurrence  must  have  hap- 
pened irrespective  of  any  voluntary  action  at  the  time  by  the  party  injured.  He 
says  further  that  the  doctrine  is  to  some  extent  f oundea  upon  the  fact  that  the 
chief  evidence  of  the  true  cause  of  the  injury,  whether  culpable  or  innocent,  is 
practicallyaccessible  to  the  party  charged  imd  perhaps  inaccessible  to  the  party 
mjured.  What  are  the  general  limits  of  the  doctrine  imd  what  is  the  true  reason 
for  its  adoption,  we  will  not  now  undertake  to  decide.  It  is  established  in  the  law 
as  a  rule  for  our  guidance  and  must  be  enforced  whenever  applicable,  and  to  the 
extent  that  it  is  applicable,  to  the  facts  of  the  particular  case."  Walker,  J.,  in 
Stewart  v.  Van  Deventer  Carpet  Co.,  138  N.  C.  60,  65. 

The  burden  of  proof  is  not  shifted;  merely  the  burden  of  going  forward. 
Sweeney  v.  Erving,  228  U.  S.  233;  Ferrier  v.  Chicago  R.  Co.,  185  HI.  App.  326; 
Bigwood  V.  Boston  R.  Co.,  209  Mass.  345;  Alabama  R.  Co.  v,  Groome,  97  Miss. 
201;  Kay  v.  Metropolitan  R.  Co.,  163  N.  Y.  447. 

*  The  arguments  of  counsel,  concurring  opinion  of  Vaudian-Williams,  L.  J^  and 
dissenting  opinion  of  Buckley,  L.  J.,  wid  part  of  the  opmion  of  Moulton,  L.  J., 
dealing  with  another  pointy  are  omitted. 


V 


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112  WING  V.  LONDON  GENERAL  OMNIBUS  CO.      [CHAP.  11. 

The  evidence  given  at  the  trial  as  to  the  nature  and  circumstances 
of  the  accident  was  meagre  in  the  extreme.  The  plaintiff  deposed  to 
nothing  more  than  that  she  was  a  passenger  in  the  omnibus,  and  that 
she  heard  breaking  of  glass,  and  knew  that  the  omnibus  had  hit  some- 
thing, and  that  she  heard  something  fall.  She  tried  to  get  out,  and, 
in  so  doing,  hurt  her  foot.  No  other  witness  was  called  who  was  pres- 
ent at  the  time  of  the  accident,  but  evidence  was  given  on  her  behalf 
by  a  poUce  constable,  who  came  up  afterwards,  and  proved  that  an 
electric  standard  had  been  broken  in  the  accident,  and  that  the  hind 
step  of  the  motor  omnibus  had  been  slightly  bent.  No  other  damage 
had  been  caused  to  the  omnibus.  He  also  proved  that  the  road  was  in 
a  greasy  state  at  the  time  by  reason  of  rain  that  had  fallen  during  the 
day.  He  was  asked  by  the  plaintiff's  counsel  as  to  certain  admissions 
made  to  him  at  the  time  by  the  driver  and  conductor  of  the  omnibus, 
and  proved  that  they  stated  to  him  that  the  hind  part  of  the  omnibus 
skidded,  when  going  about  five  miles  an  hour,  while  the  driver  was 
trying  to  avoid  two  other  vehicles.  The  defendants  called  no  evidence 
except  as  to  the  quantum  of  damage.  At  the  end  of  the  plaintiff's 
case,  counsel  for  the  defendants  submitted  that  there  was  no  evidence, 
either  of  negligence  or  of  nuisance,  to  go  to  the  jury,  and  the  learned 
judge  gave  partial  effect  to  that  contention  by  withdrawing  from  the 
jury  the  question  of  negligence  in  the  driving  or  management  of  the 
car.  The  plaintiff  did  not  take  exception  to  this  by  giving  a  cross 
notice  of  appeal,  nor  was  the  point  raised  before  the  Divisional  Court, 
and  it  is  not,  in  my  opinion,  open  to  her  counsel  to  raise  it  now.  But, 
apart  from  this,  I  am  of  opinion  that  the  learned  judge  was  right  in 
80  doing.  There  was  no  evidence  whatever  that  the  accident  was  due 
to  negligence  on  the  part  of  the  servants  of  the  defendants  who  were 
in  charge  of  the  omnibus,  imless  the  mere  occurrence  of  the  accident 
amounts  to  such  evidence.  In  my  opinion  the  mere  occurrence  of  such 
an  accident  is  not  in  itself  evidence  of  negligence.  Without  attempt- 
ing to  lay  down  any  exhaustive  classification  of  the  cases  in  which  the 
principle  of  res  ipsa  loquitur  applies,  it  may  generally  be  said  that  the 
principle  only  applies  when  the  direct  cause  of  the  accident,  and  so 
much  of  the  surroimding  circumstances  as  was  essential  to  its  occur- 
rence, were  within  the  sole  control  and  management  of  the  defendants, 
or  their  servants,  so  that  it  is  not  unfair  to  attribute  to  them  a  prima 
facte  responsibiUty  for  what  happened.  An  accident  in  the  case  of 
traflSc  on  a  highway  is  in  marked  contrast  to  such  a  condition  of 
things.  Every  vehicle  has  to  adapt  its  own  behaviour  to  the  behaviour 
of  other  persons  using  the  road>  and  over  their  actions  those  in  charge 
of  the  vehicle  have  no  control.  Hence  the  fact  that  an  accident  has 
happened  either  to  or  through  a  particular  vehicle  is  by  itself  no  evi- 
dence that  the  fault,  if  any,  which  led  to  it  was  committed  by  those 
in  charge  of  that  vehicle.  Exceptional  cases  may  occur  in  which  the 
peculiar  nature  of  the  accident  may  throw  light  upon  the  question  on 


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SECT.  IV.]  CARMODY  V.  BOSTON  GAS  LIGHT  CO.  113 

whom  the  responsibility  lies,  but  there  is  nothing  of  the  kind  here. 
The  collision  with  the  electric  standard  was  due  to  the  omnibus  skid- 
ding, and,  if  we  are  to  give  any  weight  to  the  admissions  made  by  the 
defendants'  servants  which  were  proved  in  evidence  in  chief  as  part  of 
the  plaintiff's  case,  that  skidding  was  due  to  difficulties  in  avoiding 
other  vehicles.  There  is  certainly  no  evidence  to  negative  such  a  prob- 
able explanation  of  what  actually  happened,  and  it  is  impossible  to  say 
that  this  points  to  negligence,  or  that  it  establishes  that  any  negligent 
act  of  the  defendants'  servant  was  the  cause  of  the  accident.  I  am 
therefore  of  opinion  that  the  learned  judge  acted  rightly  in  withdraw- 
ing from  the  jury  the  issue  as  to  the  accident  being  due  to  negligence 
of  the  defendants'  servants  in  the  driving  or  management  of  the 
vehicle.^ 


CARMODY  V.  BOSTON  GAS  LIGHT  CO. 

SuPBBMB  Judicial  CoxTR'f ,  Massachusetts,  January  2,  1895. 

Reported  in  162  MassachueeUe  Reports,  539. 

FoxTR  actions  for  damages  occasioned  to  the  respective  plaintiffs  by 
the  escape  of  gas  were  tried  together. 

Plaintiffs'  evidence  tended  to  show  that  gas  escaped  into  plaintiffs' 
apartments  from  defendant's  pipes  in  the  street;  that  plaintiffs  in- 
haled the  gas  while  asleep;  and  that  the  escape  was  due  to  the  defec- 
tive condition  of  the  pipe. 

Defendant's  evidence  tended  to  prove  that  the  defect  in  the  pipe 
and  the  consequent  escape  of  gas  was  due  to  acts  of  third  persons  of 
which  the  defendant  had  no  notice,  and  not  to  any  negligence  of  the 
defendant. 

The  plaintiffs  requested  the  judge  to  rule  that  there  was  evidence 
enough  of  want  of  proper  care  on  the  part  of  the  defendant  to  make 
it  responsible,  on  the  groimd  that  it  was  bound  to  conduct  its  gas  in 
a  proper  manner;  and  that  the  fact  that  the  gas  escaped  was  prima 
facie  evidence  of  some  neglect  on  the  part  of  the  defendant. 

The  judge  declined  so  to  rule,  and  instructed  the  jury  as  follows: 

"  The  mere  fact  that  a  pipe  broke  and  the  gas  escaped  is  not  of  itself 
sufficient  to  establish  the  liability  of  the  company.  It  is  evidence  for 
you  to  consider  upon  the  question  of  neglect;  but  there  is  other  evi- 
dence bearing  upon  this  question  of  neglect,  and  so  it  becomes  a  matter 
for  you  to  determine,  in  view  of  all  the  evidence  bearing  upon  the 
question,  the  burden  being  upon  the  plaintiffs  to  satisfy  you,  as  a  result 

1  Bonham  v.  Winchester  Arms  Co.,  179  111.  App.  469;  Prestolite  Co.  v.  Skeel, 
182  Ind.  693;  Rice  v.  Chicago  R.  Co.,  153  Mo.  App.  35;  DalzeU  v.  New  York  R. 
Co.,  136  App.  Div.  329  Accord, 

The  nature  and  circumstances  of  the  accident  itself  must  not  only  support  an 
inference  of  defendant's  negligence  but  must  exdude  all  others.  Lucid  v.  Powder 
Co.,  199  Fed.  377. 


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114  CABMODT  V.  BOSTON  GAS  UGHT  CO.  [CHAP.  U. 

of  all  the  evidence,  that  there  was  in  fact  a  neglect  by  the  defendant, 
through  which;  and  by  means  of  which,  this  gas  escaped.'' 


Upon  the  counsel  for  the  plaintiffs  remarking,  "  Your  honor  has  not 
given  the  requests  I  asked  for,  and  so  I  will  except  to  that,"  the  judge 
repUed  as  follows:  "  Well,  you  asked  me  to  say  that  the  fact  that  the 
gas  escaped  is  prima  facte  evidence  of  some  neglect  on  the  part  of  the 
defendant.  I  do  not  choose  to  use  that  expression  '  prima  facie  evi- 
dence,' imless  the  defendant  consents  to  it.  I  have  already  told  the 
jury  that  it  was  evidence  of  neglect,  or  of  negUgence,  on  the  defend- 
ant's part,  and  evidence  the  force  of  which  it  was  for  them  to  deter- 
mine in  connection  with  any  other  evidence  in  the  case  bearing  upon 
the  same  subject." 

The  jury  returned  a  verdict  for  the  defendant;  and  the  plaintiffs 
alleged  exceptions.^ 

Barker,  J.  The  plaintiffs  asked  the  court  to  instruct  the  jury 
"  that  there  was  evidence  enough  of  want  of  proper  care  on  the  part 
of  the  defendant  to  make  it  responsible,  on  the  ground  that  it  was 
bound  to  conduct  its  gas  in  a  proper  manner,  and  that  the  fact  that 
the  gas  escaped  was  primxi  facie  evidence  of  some  neglect  on  the  part 
of  the  defendant."  This  request  was  copied  from  a  ruling  given  in 
Smith  V.  Boston  Gas  Light  Co.,  129  Mass.  318,  where  this  court  said 
of  it  that,  as  applied  to  the  facts  of  that  case,  it  could  not  be  said  to 
be  wrong.  The  presiding  justice  in  the  present  case  declined  to  give 
the  instruction,  but  instructed  the  jury  in  other  terms,  which  fully 
and  correctly  dealt  with  the  phases  of  the  cause  to  which  the  request 
was  addressed. 

While  the  ruling  requested  is  sufficiently  correct  if  it  be  construed 
as  declaring  that  there  was  enough  evidence  of  want  of  proper  care  to 
be  submitted  to  the  jury,  it  would  invade  the  proper  province  of  the 
jury  if  it  was  understood  by  them  to  mean  that  there  was  evidence 
enough  to  require  them  to  find  the  defendant  negligent,  and  the  presid- 
ing justice  was  not  bound  to  give  a  ruling  which,  as  applied  to  the 
case  upon  trial,  might  have  been  so  understood.  Nor  was  he  bound 
to  use  the  Latin  phrase  upon  which  the  plaintiffs  insisted,  but  might 
well  say,  in  place  of  it,  that  the  fact  that  gas  escaped  was  evidence  of 
neglect  '*  and  e^^dence  the  force  of  which  it  was  for  them  to  determine 
in  connection  with  any  other  evidence  in  the  case  bearing  on  the  same 
subject." 

The  plaintiffs'  exception  did  not  go  to  the  charge  as  given,  but 
merely  to  the  refusal  of  the  request.  They  nevertheless  argue  that 
the  statement  of  the  charge,  that  "  the  mere  fact  that  a  pipe  broke 
and  the  gas  escaped  is  not  of  itself  sufficient  to  establish  the  liability 
of  the  company,"  was  incorrect.    But  there  was  evidence  with  which 

^  Statement  abridged. 


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SECT.  IV.]  BENEDICK  V.  POTTS  115 

the  jury  had  to  deal  tendmg  to  show  that  the  defendant  had  used  due 
care  to  conduct  its  gas  in  a  proper  manner,  and  that  the  escape  of  gas 
by  which  the  plaintiffs  were  injured  was  due  to  the  acts  of  third  per- 
sons of  which  the  defendant  had  no  notice,  and  not  to  any  negligence 
of  the  defendant. 

It  is  apparent;  from  the  situation  of  the  evidence  and  the  context 
of  the  charge,  that  the  sentence  to  which  the  plaintiffs  now  object 
could  not  have  been  understood  by  the  jury  as  forbidding  them  to 
draw  the  inference  of  negligence  from  the  facts  that  a  pipe  broke  and 
that  gas  escaped;  but  that,  as  there  was  other  evidence  bearing  upon 
the  question  of  negligence,  they  must  consider  and  weigh  it  all,  and 
not  come  to  a  conclusion  upon  two  circumstances  merely. 

The  true  construction  of  the  ruling  asked,  as  applied  to  the  case  at 
bar,  would  be,  that,  as  matter  of  law,  the  breaking  of  a  pipe  and  the 
consequent  escape  of  gas  prove  negligence.  The  true  rule  is,  that  a 
jury  may  find  negligence  from  those  circimistances,  but  it  is  for  them 
to  say  whether  they  will  do  so;  and,  if  there  are  other  circimistances 
bearing  on  the  question,  they  must  weigh  them  all. 

Instructions  tiiat  evidence  "  is  sufficient  to  show,"  or  "  has  a  tend- 
dency  to  show,"  or  "  is  enough  to  show,"  or  "  is  prima  facte  evidence 
of,"  are  not  to  be  understood  as  meaning  that  there  is  a  presumption  of 
fact,  but  that  the  jury  are  at  Uberty  to  draw  the  inference  from  them. 
Commonwealth  v.  Clifford,  146  Mass.  97.  Commonwealth  v.  Keenan, 
148  Mass.  470.  And  so  the  instruction  in  a  case  where  a  number  of 
circumstances  bearing  upon  a  question  of  fact  are  in  evidence,  that  a 
part  of  them  are  not  of  themselves  sufficient  to  establish  the  fact, 
coupled  with  explicit  instructions  that  they  are  to  be  considered,  must 
be  understood  as  directing  the  jury  to  weigh  together  all  the  pertinent 
circumstances,  and  not  to  draw  their  inference  from  a  part  without 
considering  all.  Excepti&ns  ovemUed.^ 


BENEDICK  V.  POTTS 

CouBT  OP  Appeals,  Maryland,  June  28,  1898. 

Reported  in  88  Maryland  Reports,  52. 

Appeal  from  Circuit  Coiurt,  where  judgment  was  entered  on  a  ver- 
dict for  defendant,  ordered  by  the  court. 

Defendant  owned  and  operated,  at  a  pleasure  resort,  a  mimic  rail- 
way, which  was  a  wooden  structure.  Open  cars  were  hoisted  up  an 
incline  to  the  highest  point  of  the  railway,  and  were  then  nm  by  grav- 

1  "  The  maxim  res  ivaa  loguiUvr  is  simply  a  rule  of  evidence. 

The  general  rule  is  that  negligence  is  never  presumed  from  the  mere  fact  of  in- 
jury, yet  the  manner  of  the  occurrence  of  the  injury  complained  of,  or  the  attend- 
ant circumstances,  may  sometimes  well  warrant  an  inference  of  neg^gence.  It  is 
sometimes  said  that  it  warrants  a  presumption  of  negligence,  but  the  presumption 
referred  to  is  not  one  of  law,  but  of  fact.    It  is,  however,  more  correct  and  less  con- 


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116  BENEDICK  V.  POTTS  [CHAP.  H. 

ity  down  and  around  a  circular  track  to  the  ground.  The  length  of 
the  spiral  track  was  about  two  thousand  feet,  and  it  made  three  cir- 
cuits before  reaching  the  ground.  At  about  the  middle  of  the  last 
circle  nearest  the  ground,  the  cars  passed  through  a  tunnel  which  was 
part  of  the  structm'e.  This  tmmel  was  one  hundred  and  fifty  feet 
long,  and  completely  incased  that  portion  of  the  track,  and  hid  the  cars 
and  their  occupants  from  all  observation  when  passing  through  it. 
The  cars  were  provided  with  handles  for  the  occupants  to  grasp  during 
the  rapid  descent.  Plaintiff  was  the  sole  occupant  of  the  rear  seat  in 
one  of  the  cars.  The  car  was  started  and  made  the  descent;  but  when 
it  reached  the  ground  at  the  end  of  the  track  the  plaintiff  was  not  in 
it,  though  as  it  entered  the  tunnel  he  was  seen  to  be  upon  it.  Search 
was  at  once  made,  and  he  was  found  inside  the  tunnel,  in  an  uncon- 
scious condition,  with  a  wound  upon  his  head.  After  several  dhys  he 
was  restored  to  consciousness.  For  the  damages  thus  sustained,  this 
suit  was  brought. 

The  car  did  not  leave  the  track,  no  part  of  it  was  shown  to  be  out  of 
repair,  the  track  was  not  defective,  and  no  explanation  is  given  in  the 
record  as  to  what  caused  the  injury.  The  plaintiff  distinctly  stated 
that  he  jnade  no  effort  to  rise  as  he  passed  through  the  tunnel,  and 
that  he  did  not  relax  his  grasp  on  the  sides  of  the  car.  He  was  in  the 
car  when  it  passed  into  the  tunnel.  He  was  not  in  it  when  it  emerged. 
How  he  got  off  was  not  shown. 

Upon  this  state  of  facts  the  trial  court  instructed  the  jury  that  there 
was  no  legally  sufficient  evidence  to  show  that  the  defendant  had  been 
guilty  of  negligence;  and  the  verdict  and  judgment  were  accordingly 
entered  for  defendant.    Plaintiff  brought  up  the  record  by  appeal.^ 

McSherry,  C.  J.  This  is  an  action  to  recover  damages  for  a  per- 
sonal injury,  and  the  single  question  which  the  record  presents  is 
whether  there  was  legally  sufficient  evidence  of  the  defendant's  im- 
puted negligence  to  carry  the  case  to  the  jury.  The  facts  are  few  and 
simple.    [The  learned  judge  then  stated  the  facts.] 

It  is  a  perfectly  wellnaettled  principle  that  to  entitle  a  plaintiff  to 
recover  in  an  action  of  this  kind  he  must  show  not  only  that  he  has 
sustained  an  injury  but  that  the  defendant  has  been  guilty  of  some 
negligence  which  produced  that  particular  injury.  The  negligence 
alleged  and  the  injury  sued  for  must  bear  the  relation  of  cause  and 
effect.  The  concurrence  of  both  and  the  nexus  between  them  must 
exist  to  constitute  a  cause  of  action.    As  an  injury  may  occur  from 

fusing  to  refer  to  it  as  an  inference,  rather  than  a  presumption,  imd  not  an  inference 
which  the  law  draws  from  the  fact,  but  an  inference  which  the  jury  are  authorized 
to  draw,  and  not  an  inference  which  the  jury  are  compelled  to  dniw."  Cobb,  J., 
in  Pakner  Brick  Co.  v.  Chenall,  119  Ga.  837,  842.  See  Sweeney  v.  Erving,  228 
U.  S.  233, 240;  Harlow  v.  Standard  Imp.  Co.,  146  Cal.  477;  National  Biscuit  Co.  v, 
Wilson,  169  Ind.  442;  O'Neil  v.  Toomey,  218  Mass.  242;  Lincoln  v,  Detroit  R.  Co., 
179  Mich.  189;  Boucher  v.  Boston  R.  Co.,  76  N.  H.  91:  Ross  v.  Cotton  Mills,  140 
N.  C.  115.  But  compare  Thompson  v.  St.  Louis  R.  Co.,  243  Mo.  336,  353. 
^  Statement  abridged. 


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SECT.  IV.]  BENEDICK  V.   POTTS  117 

causes  other  than  the  negligence  of  the  party  sued,  it  is  obvious  that 
before  a  Uability  on  account  of  that  injury  can  be  fastened  upon  a  par- 
ticular individual,  it  must  be  shown,  or  there  must  be  evidence  legally 
tending  to  show,  that  he  is  responsible  for  it;  that  is,  that  he  has  been 
guilty  of  the  negUgence  that  produced  or  occasioned  the  injury.  In 
no  instance  can  the  bare  fact  that  an  injury  has  happened,  of  itself 
and  divorced  from  all  the  surrounding  circumstances,  justify  the 
inference  that  the  injury  was  caused  by  negUgence.  It  is  true  that 
direct  proof  of  negUgence  is  not  necessary.  Like  any  other  fact,  neg- 
Ugence may  be  established  by  the  proof  of  circumstances  from  which 
its  existence  may  be  inferred.  But  this  inference  must,  after  aU,  be  a 
legitimate  inference  and  not  a  mere  speculation  of  conjecture.  There 
must  be  a  logical  relation  and  connection  between  the  circumstances 
proved  and  the  conclusion  sought  to  be  adduced  from  them.  This 
principle  is  never  departed  from,  and  in  the  very  nature  of  things  it 
never  can  be  disr^arded.  There  are  instances  in  which  the  circum- 
stances siu-rounding  an  occurrence  and  giving  a  character  to  it  are 
held,  if  unexplained,  to  indicate  the  antecedent  or  coincident  exist- 
ence of  negligence  as  the  efficient  cause  of  an  injury  complained  of. 
These  are  the  instances  where  the  doctrine  of  res  ipsa  hquiUJtr  is  ap- 
pUed.  This  phrase,  which  Uterally  translated  means  that ''  the  thing 
speaks  for  itself,"  is  merely  a  short  way  of  s^3ang  that  the  circum- 
stances attendant  upon  an  accident  are  themselves  of  such  a  character 
as  to  justify  a  jiuy  in  inferring  negligepce  as  the  cause  of  that  acci- 
dent; and  the  doctrine  which  it  embodies,  though  correct  enough  in 
itself,  may  be  said  to  be  appUcable  to  two  classes  of  cases  only,  viz., 
''  first,  when  the  relation  of  carrier  and  passenger  exists  and  the  acci- 
dent arises  from  some  abnormal  condition  in  the  department  of  actual 
transportation;  second,  where  the  injury  arises  from  some  condition 
or  event  that  is  in  its  very  nature  so  obviously  destructive  of  the  safety 
of  person  or  property  and  is  so  tortious  in  its  quaUty  as,  in  the  first 
instance  at  least,  to  permit  no  inference  save  that  of  negligence  on  the 
part  of  the  person  in  the  control  of  the  injurious  agency."  Thomas  on 
Neg.  574.  But  it  is  obvious  that  in  both  instances  more  than  the  mere 
isolated,  single,  segregated  fact  that  an  injury  has  happened  must  be 
known.  The  injury,  without  more,  does  not  necessarily  speak  or  indi- 
cate the  cause  of  that  injury  —  it  is  colorless;  but  the  act  that  pro- 
duced the  injury  being  made  apparent  may,  in  the  instances  indicated, 
furnish  the  ground  for  a  presumption  that  negUgence  set  that  act  in 
motion.  The  maxim  does  not  go  to  the  extent  of  impljdng  that  you 
may  from  the  mere  fact  of  an  injury  infer  what  physical  act  produced 
that  injiuy;  but  it  means  that  when  the  physical  act  has  been  shown 
or  is  apparent  and  is  not  explained  by  the  defendant,  the  conclusion 
that  negUgence  superinduced  it  may  be  drawn  as  a  legitimate  deduc- 
tion of  fact.  It  permits  an  inference  that  the  known  act  which  pro- 
duced the  injury  was  a  negUgent  act,  but  it  does  not  permit  an  infer- 


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118  BENEDICK  V.  POTTS  [CHAP.  II. 

ence  as  to  what  act  did  produce  the  injury.  Negligence  manifestly 
cannot  be  predicated  of  any  act  until  you  know  what  the  act  is.  Until 
you  know  what  did  occasion  an  injury,  you  cannot  say  that  the  de- 
fendant was  guilty  of  some  negligence  that  produced  that  injury. 
There  is,  therefore,  a  difference  between  inferring  as  a  conclusion  of 
fact  what  it  was  that  did  the  injury;  and  inferring  from  a  known  or 
proven  act  occasioning  the  injury  that  there  was  negligence  in  the  act 
that  did  produce  the  injury.  To.  the  first  category  the  maxim  res 
ipsa  loquitur  has  no  application;  it  is  confined,  when  applicable  at  all, 
solely  to  the  second.  In  no  case  where  the  thing  which  occasioned  the 
injury  is  unknown  has  it  ever  been  held  that  the  maxim  applies;  be- 
cause when  the  thing  which  produced  the  injury  is  imknown  it  cannot 
be  said  to  speak  or  to  indicate  the  existence  of  causative  negligence. 
In  all  the  cases,  whether  the  relation  of  carrier  and  passenger  existed 
or  not,  the  injury  alone  furnished  no  evidence  of  negUgence  —  some- 
thing more  was  required  to  be  shown.  For  instance:  In  Penn.  R.  R. 
Co.  V.  MacKinney,  124  Pa.  St.  462,  it  was  said:  ''  A  passenger's  leg  is 
broken,  while  on  his  passage,  in  a  railroad  car.  This  mere  fact  is  no 
evidence  of  negligence  on  the  part  of  the  carrier  until  something 
further  be  shown.  If  the  witness  who  swears  to  the  injury  testifies 
also  that  it  was  caused  by  a  crash  in  a  collision  with  another  train  of 
cars  belonging  to  the  same  carrier,  the  presumption  of  negligence 
immediately  arises;  not,  however,  from  the  fact  that  the  leg  was 
broken,  but  from  the  circumstances  attending  the  fact."  And  so  in 
Byrne  v,  Boadle,  2  Hurl.  &  Colt.  728,  there  was  proof  not  only  of  an 
injury  but  there  was  evidence  to  show  how  the  injury  happened,  and 
the  presumption  of  negligence  was  applied,  not  because  of  there  being 
an  injury,  but  because  of  the  way  or  manner  in  which  the  injiuy  was 
produced.  And  in  Howser's  case,  80  Md.  146,  the  injury  was  caused 
by  cross-ties  falling  from  a  moving  train  upon  the  plaintiff  who  was 
walking  by  the  side  of  the  track,  and  the  presumption  of  negUgence 
was  allowed,  not  as  an  inference  deducible  from  the  injiuy  itself,  but 
as  a  conclusion  resulting  from  the  method  in  which  and  the  instru- 
mentality by  which  the  injury  had  been  occasioned.  In  the  recent 
case  of  Consolidated  Traction  Co.  v.  Thalheimer,  Comi;  of  Errors  and 
Appeals,  N.  J.,  2  Amer.  Neg.  Rep.  196,^  it  appeared  that  the  plaintiff 
was  a  passenger  of  the  appellant,  and,  having  been  notified  by  the 
conductor  that  the  car  was  approaching  the  point  where  she  desired 
to  alight,  got  up  from  her  seat  and  walked  to  the  door  while  the  car 
was  in  motion,  and,  while  going  through  the  doorway,  she  was  thrown 
into  the  street  by  a  sudden  lurch  and  thus  injured.  The  court  said: 
"  At  all  events,  the  fact  that  such  a  lurch  or  jerk  occurred,  as  would 
have  been  imlikely  to  occm*  if  proper  care  had  been  exercised,  brings 
the  ca^e  within  the  maxim  res  ipsa  loquitur. ^^  The  inference  of  negli- 
gence arose  not  from  the  injury  to  the  passenger,  but  from  the  act  that 

1  59  N.  J.  Law,  474. 


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SECT.  IV.]  BENEDICK  V.  POTTS  119 

caused  the  injury.  In  B.  &  0.  R.  R.  v.  Worthington,  21  Md.  275,  the 
train  was  derailed  in  consequence  of  an  open  switch,  and  it  was  held 
that  the  injury  thus  inflicted  on  the  passenger  was  presumptive 
evidence  of  negligence  —  not  that  the  mere  injury  raised  such  a  pre- 
sumption, but  that  the  injury  caused  in  the  way  and  imder  the  cir- 
cimistances  shown  indicated  actionable  negligence  imless  satisfactorily 
explained. 

Whether,  therefore,  there  be  a  contractual  relation  between  the  par- 
ties or  not,  there  must  be  proof  of  negUgence  or  proof  of  some  circxmi- 
stances  from  which  negligence  may  be  inferred,  before  an  action  can 
be  sustained.  And  whether  you  characterize  that  inference  an  ordi- 
nary presimiption  of  fact,  or  say  of  the  act  that  caused  the  injury,  the 
thing  speaks  for  itself,  you  assert  merely  a  rebuttable  conclusion  de- 
duced from  known  and  obvious,  premises.  It  follows,  of  course,  that 
when  the  dd  that  caused  the  injury  is  wholly  unknown  or  undisclosed, 
it  is  simply  snd  essentially  impossible  to  affirm  that  there  was  a  neg- 
ligent act;  and  neither  the  doctrine  of  res  ipsa  loquitur  nor  any  other 
principle  of  presumption  can  be  invoked  to  fasten  a  liability  upon  the 
party  charged  with  having  by  negligence  caused  the  injmy  for  the 
infliction  of  which  a  suit  has  been  brought. 

Now,  in  the  case  at  bar  there  is  no  evidence  that  the  car  on  the  track 
was  out  of  repair.  The  car  went  safely  to  its  destination,  carrying 
the  other  occupants.  There  is  no  evidence  that  the  roof  of  the  tunnel 
struck  the  appellant,  or  that  the  fact  that  a  small  part  of  the  central 
plank  of  the  tunnel  roof  had  been  slabbed  off  had  the  most  remote 
connection  with  the  accident.  It  is  a  case  presenting  not  a  single  cir- 
cumstance showing  how  or  by  what  agency  the  injury  occurred,  and 
in  which,  with  nothing  but  the  isolated  fact  of  the  injury  having  hap- 
pened, being  proved,  it  is  insisted  that  the  jury  shall  be  allowed  to 
speculate  as  to  the  cause  that  produced  it,  and  then  to  infer  from  the 
cause  thus  assumed  but  not  established,  that  there  was  actionable  neg- 
ligence. It  is  not  an  attempt  to  infer  negligence  from  an  apparent 
cause,  but  to  infer  the  cause  of  the  injury  from  the  naked  fact  of  in- 
jury, and  then  to  superadd  the  further  inference  that  this  inferred 
cause  proceeded  from  negligence.  If  in  Howser's  case,  supra,  there 
had  been  no  other  evidence  than  the  mere  fact  of  an  injury,  it  cannot 
be  pretended  that  the  jury  would  have  been  allowed  to  speculate  as  to 
how  the  injury  had  occurred. 

The  appellant  was  on  the  car  when  it  entered  the  tunnel;  he  was 
not  on  the  car  when  it  emerged,  but  was  found  in  an  unconscious  state 
in  the  tunnel.  There  was  no  defect  in  or  abnormal  condition  affecting 
the  means  of  actual  transportation.  The  other  occupants  of  the  car 
passed  safely  through.  What  caused  the  appellant  to  be  out  of  the 
car  is  a  matter  of  pure  conjecture.  No  one  has  explained  or  attempted 
to  explain  how  he  got  where  he  was  found.  Indeed,  the  two  persons 
who  occupied  the  front  seat  were  ignorant  of  the  appellant's  absence 


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120  FLINT  &  WALLING  MANUF.  CO.  V.  BECKETT       [CHAP.  II. 

from  the  car  until  it  had  reached  its  destination,  and  the  appellant 
himself  distinctly  testified  that  he  did  not  relax  his  hold  to  the  car 
and  did  not  attempt  to  rise,  but  lowered  his  head  as  he  entered  the 
tunnel.  All  that  is  certain  is,  that  he  was  injured  in  some  way  and  he 
asks  that  the  jury  may  be  allowed,  in  the  absence  of  all  explanatory 
evidence,  to  infer  that  some  act  of  a  negligent  character  for  which  the 
appellee  is  responsible,  caused  the  injury  sustained  by  the  appellant. 
No  case  has  gone  to  that  extent  and  no  known  principle  can  be  cited 
to  sanction  such  a  position.  There  has  been  no  circumstance  shown 
which  furnishes  the  foundation  for  an  inference  of  negligence;  and 
the  circumstances  which  have  been  shown  obviously  do  not  bring  the 
case  within  the  doctrine  of  res  ipsa  loquitur.  There  was,  consequently, 
no  error  in  the  ruling  complained  of,  and  the  judgment  of  the  Circuit 
Court  must  be  affirmed.  Judgment  affirmed.^ 


*  Section  V 

The  Duty  of  Care  —  Misfeasance  and  Nonfeasance 

FLINT  &  WALLING  MANUFACTURING  CO.  v  BECKETT 
Supreme  Court,  Indiana,  December  18,  1906. 

Reported  in  167  Indiana  Reports  ^  491. 

Beckett  brought  this  action  against  the  Flint  &  Walling  Manufac- 
turing Company  to  recover  damages  for  harm  done  to  his  bam  and  the 
contents  thereof,  owing  to  the  fact  that  the  company  constructed  a 
windmill  thereon  in  such  an  insuflScient  manner  that  it  fell  upon  the 
roof  of  the  barn. 

The  complaint  contained,  in  substance,  the  following  statements:  — 

There  was  an  air-shaft  in  the  centre  of  the  bam,  extending  from  the 
bottom  to,  and  projecting  through,  the  roof.  Defendant  contracted 
with  plaintiff  to  erect  oi\  the  air-shaft  a  windmill  consisting  of  a  wheel, 
tower,  etc.,  to  be  erected  in  a  first-class  manner.  The  defendant 
erected  the  windmill  in  a  negligent  manner;  especially  in  the  mode  of 
fastening  the  tower  to  the  air-shaft.  In  consequence  of  this  defective 
construction,  a  wind  of  ordinary  velocity  caused  the  windmill  to  break 
and  twist  the  air-shaft  and  fall  about  sixty  feet  on  the  roof  of  the  bam. 

Trial  in  the  Circuit  Court.  Verdict  for  plaintiff  and  judgment 
thereon.    Defendant  company  appealed.* 

1  Actiesselskabet  Ingrid  v.  Central  R.  CJo^216  Fed.  72;  Huneke  v.  West  Brigh- 
ton Amusement  Co.,  80  App.  Div.  268;  De  Glopper  v.  Nashville  R.  Co.,  123  Tenn. 
633  Accord. 

^  Statement  abridged.     Part  of  opinion  omitted. 


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SECT,  v.]        FLINT  &  WALLING  MANUF.  CO.  V.  BECKETT  121 

GiLLETT,  J. 

The  leading  contention  of  appellant's  counsel  is  that  the  duty  it 
owed  to  appellee  arose  out  of  contract,  and  that,  as  appellant  was  not 
engaged  in  a  public  emplojmient,  its  obligation  could  only  be  enforced 
by  an  action  on  the  contract  for  a  breach  thereof.  The  latter  insistence 
cannot  be  upheld.  It  is,  of  course,  true  that  it  is  not  every  breach  of 
contract  which  can  be  counted  on  as  a  tort,  and  it  may  also  be  granted 
that  if  the  making  of  a  contract  does  not  bring  the  parties  into  such  a 
relation  that  a  common-law  obligation  exists,  no  action  can  be  main- 
tained in  tort  for  an  omission  properly  to  perform  the  undertaking. 
It  by  no  means  follows,  however,  that  this  common-law  obligation 
may  not  have  its  inception  in  contract.  If  a  defendant  may  be  held 
liable  for  the  neglect  of  a  duty  imposed  on  him,  independently  of  any 
contract,  by  operation  of  law,  a  fortiori  ought  he  to  be  liable  where  he 
has  come  under  an  obligation  to  use  care  as  the  result  of  an  imdertak- 
ing  foimded  on  a  consideration. 

Where  the  duty  has  its  roots  in  contract,  the  imdertaking  to  observe 
due  care  may  be  implied  from  the  relationship,  and  should  it  be  the 
fact  that  a  breach  of  the  agreement  also  constitutes  such  a  failure  to 
exercise  care  as  amoimts  to  a  tort,  the  plaintiff  may  elect,  as  the  com- 
mon-law authorities  have  it,  to  sue  in  case  or  in  assumpsit.  It  is 
broadly  stated  in  1  C!omyn's  Digest,  Action  on  the  Case  for  Negli- 
gence, A  4,  p.  418,  that  "  if  a  man  neglect  to  do  that,  which  he  has 
undertaken  to  do,  an  action  upon  the  case  lies.  .  .  .  But,  if  there  be 
not  any  neglect  in  the  defendwit,  an  action  upon  the  case  does  not  lie 
against  him,  though  he  do  not  perform  his  undertaking."  Professor 
Pollock  sajrs:  "  One  who  enters  on  the  doing  of  anything  attended 
with  risk  to  the  persons  or  property  of  others  is  held  answerable  for 
the  use  of  a  certain  measure  of  caution  to  guard  against  that  risk.  To 
name  one  of  the  commonest  applications, '  those  who  go  personally  or 
bring  property  where  they  know  that  they  or  it  may  come  into  col- 
lision with  the  persons  or  property  of  others  have  by  law  a  duty  cast 
upon  them  to  use  reasonable  care  and  skill  to  avoid  such  collision.' 
.  .  .  In  some  cases  this  ground  of  liability  may  coexist  with  a  liability 
on  contract  towards  the  same  person,  and  arising  (as  regards  the 
breach)  out  of  the  same  facts.  Where  a  man  interferes  gratuitously, 
he  is  bound  to  act  in  a  reasonable  and  prudent  manner  according  to 
the  circumstances  and  opportunities  of  the  case.  And  this  duty  is  not 
affected  by  the  fact,  if  so  it  be,  that  he  is  acting  for  reward,  in  other 
words,  under  a  contract,  and  may  be  liable  on  the  contract.  The  two 
duties  are  distinct,  except  so  far  as  the  same  party  cannot  be  com- 
pensated twice  over  for  the  same  facts,  once  for  the  breach  of  contract 
and  again  for  the  wrong.  Historically  the  liability  in  tort  is  older; 
and  indeed  it  was  by  special  development  of  this  view  that  the  action 
of  assumpsit,  afterwards  the  common  mode  of  enforcing  simple  con- . 
tracts,  was  brought  into  use.    '  If  a  smith  prick  my  horse  with  a  nail, 


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122  FLINT  &  WALLING  MANUF.  CO.  V.  BECKETT         [CHAP.  XL 

etc.,  I  shall  have  my  action  upon  the  case  against  him,  without  any 
warranty  by  the  smith  to  do  it  well.  .  .  .  For  it  is  the  duty  of  every 
artificer  to  exercise  his  art  rightly  and  truly  as  he  ought.'  "  Webb's 
Pollock,  Torts,  533-536.  This  general  thought  also  finds  expression 
in  Mr.  Street's  valuable  work  (1  Street,  Foundations  of  Legal  Liabil- 
ity, 92).  It  is  there  said:  "  The  general  doctrine  may  be  laid  down 
thus :  In  every  situation  where  a  man  undertakes  to  act  or  to  pursue  a 
particular  course  he  is  under  an  implied  legal  obligation  or  duty  to  act 
with  reasonable  care,  to  the  end  that  the  person  or  property  of  others 
may  not  be  injured  by  any  force  which  he  sets  in  operation  or  by  any 
agent  for  which  he  is  responsible.  If  he  fails  to  exercise  the  degree  of 
caution  which  the  law  requires  in  a  particular  situation,  he  is  held 
liable  for  any  damage  that  results  to  another  just  as  if  he  had  bound 
himself  by  an  obligatory  promise  to  exercise  the  required  degree  of 
care.  In  this  view,  statements  so  frequently  seen  in  negligence  cases, 
to  the  effect  that  men  are  bound  to  act  with  due  and  reasonable  care, 
are  really  vital  and  significant  expressions.  If  there  had  been  any 
remedial  necessity  for  so  declaring,  it  could  obviously  have  been  said 
without  violence  to  the  principle  that  men  who  undertake  to  act  are 
subject  to  a  fictitious  or  implied  promise  to  act  with  due  care."  See 
also  Howard  v.  Shepherd,  (1850)  9  C.  B.  (67  Eng.  Com.  Law)  296, 
321;  Coy  v.  Indianapolis  Gas  Co.,  (1897)  146  Ind.  655,  36  L.  R.  A. 
635;  Parrill  v.  Cleveland,  etc.,  R.  Co.,  (1900)  23  Ind.  App.  638;  Rich 
V.  New  York,  etc.,  R.  Co.,  (1882)  87  N.  Y.  382;  Dean  v.  McLean, 
(1875)  48  Vt.  412,  21  Am.  Rep.  130;  Stock  v.  City  of  Boston,  (1889) 
149  Mass.  410,  21  N.  E.  871,  14  Am.  St.  430;  Bickford  v,  Richards, 
(1891)  154  Mass.  163,  27  N.  E.  1014,  26  Am.  St.  224;  Addison,  Torts 
(3d  ed.),  p.  13;  1  Thompson,  Negligence  (2d  ed.),  §  6;  1  Shearman 
&  Redfield,  Negligence  (5th  ed.),  §§  9,  22;  Saimders,  Negligence,  55, 
121;  6  Cyc.  Law  and  Proc.  688. 

The  position  in  which  appellant  placed  this  large  and  heavy  struc- 
ture, located,  as  it  was,  upon  the  barn,  some  seventy  feet  above  the 
earth,  was  such  that  it  was  calculated  to  do  great  harm  to  appellee's 
property  should  it  fall.  We  cannot  doubt,  in  view  of  the  terms  of  the 
contract,  construed  in  the  light  of  the  practical  construction  which  the 
parties  gave  to  it,  to  say  nothing  of  the  extraneous  agreement  set  forth 
in  the  complaint,  that  it  was  the  duty  of  appellant  to  exercise  ordi- 
nary care  to  secure  the  tower  in  such  a  manner  that  this  heavy  and 
exposed  structure  would  not,  imder  the  action  of  ordinary  winds, 
weave  around  and  become  detached  from  the  body  of  the  air-shaft. 
Insecurely  fastened,  as  the  complaint  shows  that  this  structure  was, 
appellant  was  bound  to  apprehend  that  it  might  fall,  and  that,  if  it 
did,  great  injury  would  thereby  be  occasioned  to  appellee.  It  was 
also  bound  to  apprehend,  from  the  very  care  and  skill  which  it  im- 
pliedly held  itself  out  as  exercising  (a  circumstance  calculated  to 
throw  appellee  oflf  his  guard),  and  from  the  fact  that  an  examination 


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SECT,  v.]       FLINT  A  WALLING  MANUF.  CO.  V.  BECKETT  123 

was  difficult,  that  in  all  probability  the  defects  would  not  be  observed 
in  time  to  avoid  the  injury.  Indeed,  as  laid  down  in  Mowbray  v. 
Merryweather,  [1895]  2  Q.  B.  640/  and  Devlin  v.  Smith,  (1882)  89 
N.  Y.  470,  42  Am.  Rep.  311,  appellee  owed  no  duty,  so  far  as  appel- 
lant was  concerned,  to  examine  the  tower.  The  contrivance  was  in- 
herently dangerous,  and  the  circumstances  of  placing  it  upon  the  bam, 
as  shown,  made  it  calculated  to  eventuate  in  harm.  This  being  true, 
and  as  there  was  no  intervening  responsible  agency  between  appellee 
and  the  wrong,  so  that  the  causal  relation  remained  unbroken,  we  can 
perceive  no  reason  for  acquitting  appellant  of  responsibility  as  a  tort 
feasor.  See  Wharton,  Negligence  (2d  ed.),  §  438;  1  Beven,  NegU- 
gence  (2d  ed.),  62;  Roddy  v.  Missouri  Pac.R.  Co.,  (1891)  104  Mo. 
234,  15  S.  W.  1112,  12  L.  R.  A.  746,  24  Am.  St.  333.  It  is  not  neces- 
sary  to  consider  the  extent  to  which  contracts  may  impose  obligations 
to  exercise  care  for  the  protection  of  third  persons,  for  here  the  relation 
is  direct  and  immediate,  but  we  quote,  as  showing  that  there  is  clearly 
a  liability  in  tort,  in  such  a  case  as  this,  the  following  general  state- 
ments in  1  Shearman  &  Redfield,  Negligence  (5th  ed.),  §  117,  with 
reference  to  the  liability  for  selling  dangerous  goods:  "  But  one  who 
knowingly  seUs  an  article  intrinsically  dangerous  to  human  life  or 
health,  such  as  poison,  explosive  oils  or  diseased  meat,  concealing  from 
the  buyer  knowledge  of  that  fact,  is  responsible  to  any  person  who, 
without  fault  on  the  part  of  himself  or  any  other  person,  sufficient  to 
break  the  chain  of  causation,  is  injured  thereby.  And  we  see  no  reason 
why  the  same  rule  should  not  apply  to  articles  known  to  be  dangerous 
to  property." 

A  number  of  questions  are  argued  by  appellant's  counsel  which  are 
based  upon  the  contention  that  the  theory  of  the  complaint  was  that 
appellant  had  committed  a  breach  of  contract.  The  latter  insistence 
is  based  on  the  fact  that  the  contract  is  set  out  in  full  in  the  com- 
plaint. It  is  often  difficult  to  determine  whether,  in  the  statement  of 
such  a  cause  of  action  as  the  one  under  consideration,  wherein  the 
very  breach  of  the  contract  also  constitutes  negligence,  the  purpose  of 
the  pleader  was  to  rely  upon  a  breach  of  contract  or  to  charge  negli- 
gence in  the  violation  of  the  implied  duty  which  was  created  by  the 
undertaking  of  the  defendant.  It  is  true  that  in  an  action  on  the  case 
for  negligence,  wherein  the  declaration  or  complaint  is  not  based  on 
mere  nonfeasance  it  is  not  necessary  to  plead  a  consideration,  and, 
therefore,  where  the  action  is  based  on  the  manner  in  which  an  under- 
taking was  performed,  or,  in  other  words,  on  some  misfeasance  or  mal- 
feasance, the  allegation  of  a  consideration  may  be  regarded  as  one  of 
the  markings  of  an  action  ex  contractu.  But  we  do  not  imderstand 
that  this  is  a  controlling  consideration;  on  the  contrary,  it  does  not 
appear  to  admit  of  question  that  if  the  contract  or  consideration  be 
set  out  as  a  matter  of  inducement  only,  the  plaintiff's  action  may  be 


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124  FLINT  A  WALLING  MANUF.  CO.  V.  BECKETT        [CHAP.  II. 

regarded  as  one  in  case  for  a  violation  of  the  common-law  duty  which 
the  circumstances  had  imposed  upon  the  defendant.  1  Chitty,  Plead- 
ing, ♦ISS;  Dickson  v,  Clifton,  2  Wils.  319;  Watson,  Damages  for  Per. 
Inj.,  §  570;  21  Ency.  PL  and  Pr.,  913.  We  are  especially  impressed 
with  the  view  that  in  code  pleading,  which  was  designed  preeminently 
to  be  a  S3rstem  of  fact  pleading,  a  plaintiff,  in  suing  in  tort,  may 
properly  set  out  his  contract,  as  constituting  the  underlying  fact, 
instead  of  charging  the  defendant's  imdertaking  in  general  terms,  and 
that  the  plaintiff  does  not  thereby  necessarily  commit  himself  to  the 
theory  that  his  action  is  for  breach  of  contract.  Leeds  v.  City  of  Rich- 
mond, (1885)  102  Ind.  372;  Parrill  v.  Cleveland,  etc.,  R.  Co.,  supra; 
McMurtry  v.  Kentucky  Cent.  R.  Co.,  (1886)  84  Ky.  462, 1  S.  W.  815; 
Watson,  Damages  for  Per.  Inj.,  §  570.  In  the  complaint  before  us 
appellee  not  only  sets  out  the  written  contract,  but  he  pleads  a  sup- 
plemental or  subsidiary  agreement  as  well,  so  that  it  can  hardly  be 
said  that  he  relied  on  the  written  contract  as  the  foundation  of  the 
action.  He  charges  no  breach  of  the  contract  except  as  it  can  be 
implied  from  the  allegations  of  negligence;  he  alleges  damages  ''  by 
reason  of  the  defendant's  negligence,  carelessness,  imprudence,  and 
unskilfubess  in  erecting,  constructing,  and  fastening  said  steel  tower 
to  said  air-shaft  as  aforesaid;  "  he  charges,  in  setting  forth  the  total 
amount  of  his  damages,  that  they  were  occasioned  "  by  reason  of  the 
defendant's  negligence  and  failure  of  duty  as  herein  alleged,"  and  he 
avers  that  he  "  had  no  notice  or  knowledge  of  the  faulty,  negligent, 
and  unskilful  erection  of  said  mill,"  and  that  he  himself  was  without 
fault  or  negligence  in  the  premises.  In  view  of  the  general  structure 
of  the  complaint,  and  applying  to  it  the  rule  that  a  construction  of  a 
pleading  which  will  give  effect  to  all  of  its  material  allegations  is  to 
be  preferred,  where  reasonably  possible  (Monnett  v.  Turpie,  [1892] 
133  Ind.  424),  it  appears  to  us  that  it  must  be  held  that  the  action  was 
for  the  tort.  But,  admitting  that  there  is  room  for  doubt  on  this 
subject,  the  fact  that  the  court  below,  as  the  record  plainly  shows, 
tried  the  cause  on  the  theory  that  it  was  an  action  ex  delicto,  must 
settle  the  question  against  the  contention  of  appellant.  Lake  Erie, 
etc.,  R.  Co.  V,  Acres,  (1886)  108  Ind.  548;  Diggs  v.  Way,  (1899)  22 
Ind.  App.  617. 

Judgment  affirmed,^ 

1  Carpenter  v.  Walker,  170  Ala.  659;  Miller  v.  Fletcher,  142  Ga.  668;  Zabron  v. 
Cunard  Co.,  151  la.  345;  Randolph  v.  Snyder,  139  Ky.  159;  Sprin^eld  Egg  Co. 
V.  Sprin^eld  Ice  Co.,  259  Mo.  664;  HaSes  v.  Raines,  146  ^fo.  App.  232,  239; 
Robinson  v,  ThreadgiU,  13  Ired.  Law,  39;  Hobbs  v.  Smith,  27  Okl.  830  Accord. 


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SECT,  v.]       KELLY  V.  METROPOLITAN  R.  CO.  125 

KELLY  V.  METROPOLITAN  R.  CO. 

In  the  Court  of  Appeal,  April  24,  1895. 
Reported  in  [1895]  1  Queen's  Bench,  944. 

Appeal  from  an  order  of  a  judge  at  chambers  affirming  an  order  of 
a  master  directing  that  the  plaintiflf's  bill  of  costs  should  be  referred 
back  to  be  drawn  on  the  county  court  scale. 

The  action  was  brought  to  recover  damages  for  personal  injuries  to 
the  plaintiff  while  a  passenger  on  the  defendants'  railway.  The  state- 
ment of  claim  alleged  an  agreement  by  the  defendants  to  carry  the 
plaintiff  safely,  and  a  breach  of  that  agreement  in  negligently  and 
improperly  managing  the  train  in  which  he  was,  so  that  it  ran  into 
the  wall  at  Baker  Street  Station,  whereby  the  plaintiff  sustained 
injury.  It  was  admitted  by  the  defendants  that  the  accident  occurred 
by  the  negUgence  of  the  engine-driver  in  not  turning  off  steam  in  time 
to  prevent  the  train  nmning  into  the  dead-end  at  the  station.  A  sum 
of  20Z.  was  paid  into  court,  and  the  jury  returned  a  verdict  for  the 
plaintiff  for  25!. 

When  the  plaintiff's  costs  were  taken  in  to  be  taxed,  the  master 
was  of  opinion  that,  on  the  authority  of  Taylor  v.  Manchester,  Shef- 
field, and  Lincohishire  Ry.  Co.,  [1895]  1  Q.  B.  134,  the  act  of  the 
engine-driver  being  one  of  omission,  the  action  was  founded  on  con- 
tract, and  that  therefore  the  plaintiff  was  only  entitled  to  costs  on  the 
coimty  court  scale.    On  appeal,  this  decision  was  affirmed  by  Day,  J. 

The  plaintiff  appealed. 

Kemp,  Q.  C,  and  Cagney,  for  the  plaintiff,  submitted  that  the  action 
was  in  fact  an  action  of  tort,  and  was  tried  as  such,  and  that  the 
plaintiff  was  entitled  to  costs  on  the  High  Court  scale. 

Lawson  WaMon,  Q.  C,  and  George  EllioUj  for  the  defendants.  The 
duty  of  the  defendants  was  contractual,  and  they  were  bound  to  take 
due  care  not  to  injure  the  plaintiff.  The  act  which  caused  the  injury 
was  an  omission  to  turn  off  steam,  and  amounted  to  a  nonfeasance. 
It  was  not  an  act  of  commission  or  misfeasance,  and  the  defendants 
were  not  liable  in  tort.  The  distinction  is  dealt  with  in  the  judgment 
of  Lindley,  L.  J.,  and  A.  L.  Smith,  L.  J.,  in  Taylor  v,  Manchester, 
Sheffield,  and  Lincolnshire  Ry.  Co.,  [1895]  1  Q.  B.  134,  and  the  present 
case  comes  within  that  authority. 

[They  also  cited  Foulkes  v.  Metropolitan  District  Ry.  Co.,  4  C.  P. 
D.  267;  5  C.  P.  D.  157.] 

A.  L.  Smith,  L.  J.,  read  the  following  judgment:  ^  There  appears 
to  have  been  some  misapprehension  as  to  what  was  decided  in  the  case 
of  Taylor  v.  Manchester,  Sheffield,  and  Lincohishire  Ry.  Co.,  [1895] 
1  Q.  B.  134,  to  which  I  was  a  party. 

*  The  opinion  of  Lord  Esher,  M.  R.,  is  omitted. 


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126  KJ3LLY  V.  METROPOLITAN   R.  CO.  [CHAP.  II. 

The  plaintiff  in  the  present  case  was  a  passenger  on  the  defendants' 
railway,  and  whilst  lawfully  riding  in  one  of  their  carriages  was  in- 
jured by  its  being  negligently  nm  into  a  dead-end  by  the  defendants' 
driver. 

It  has  been  thought  by  the  master,  and  also  by  Day,  J.,  that,  be- 
cause the  negligence  was  that  the  driver  omitted  to  turn  off  steam, 
this  constituted  a  nonfeasance  or  omission  within  what  was  said  in  the 
above-mentioned  case,  and  that  as  the  plaintiff  had  recovered  25L  and 
no  more  he  was  only  entitled  to  county  court  costs.  I  am  clearly  of 
opinion  that  this  is  not  what  was  decided,  nor  is  any  such  statement 
to  be  found  in  that  judgment. 

The  distinction  between  acts  of  commission  or  misfeasance,  and 
acts  of  omission  or  nonfeasance,  does  not  depend  on  whether  a  driver 
or  signalman  of  a  defendant  company  has  negligently  turned  on  steam 
or  negligently  hoisted  a  signal,  or  whether  he  has  negligently  omitted 
to  do  the  one  or  the  other.  The  distinction  is  this,  if  the  cause  of 
complaint  be  for  an  act  of  omission  or  nonfeasance  which  without 
proof  of  a  contract  to  do  what  has  been  left  undone  would  not  give 
rise  to  any  cause  of  action  (because  no  duty  apart  from  contract  to 
do  what  is  complained  of  exists),  then  the  action  is  foimded  upon 
contract  and  not  upon  tort.  If,  on  the  other  hand,  the  relation  of  the 
plaintiff  and  the  defendants  be  such  that  a  duty  arises  from  that  rela- 
tionship, irrespective  of  contract,  to  take  due  care,  and  the  defendants 
are  negligent,  then  the  action  is  one  of  tort,  and  as  regards  the  County 
Court  Acts  and  costs  this  is  what  was  laid  down  in  the  above-men- 
tioned case.    The  appeal  should  be  allowed  with  costs  here  and  below. 

RiGBY,  L.  J.  I  entirely  agree.  It  appears  to  me  that  the  attempt 
to  dissect  the  act  of  the  defendants'  servant,  and  to  treat  the  mere 
omission  to  turn  off  steam  as  a  nonfeasance  within  the  meaning  of  the 
cases  referred  to,  altogether  fails.  An  engine-driver  is  in  charge  of  the 
train,  and  a  passenger  is  in  that  train,  independently  of  contract,  with 
the  permission  of  the  defendants.  That  passenger  is  injured  in  con- 
sequence of  the  train  being  negligently  brought  into  collision  with  the 
dead-end.  The  proper  description  of  what  was  done  is  that  it  was 
a  negligent  act  in  so  managing  the  train  as  to  allow  it  to  come  into 
contact  with  the  dead-end  and  so  cause  the  accident.  It  is  a  case  in 
which  the  company  by  their  servant  neglected  a  duty  which  they  owed 
to  the  plaintiff  —  that  is  to  say,  it  was  a  case  in  wh^ch  an  action  of 
tort  could  be  brought.  Appeal  allowed} 

^  The  settled  practice  allows  an  action  against  a  carrier  either  upon  contract  or 
upon  tort,  as  best  suits  the  purposes  of  the  pleader.  3  Hutchinson,  Gamers  (3d 
ed.),  §  1326. 


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SECT,  v.]      SOUTHERN  RAILWAY  COMPANY  V.  GRIZZLE  127 


SOUTHERN  RAILWAY  COMPANY  v.  GRIZZLE 

Supreme  Court,  Georgia,  January  13,  1906. 

Reported  in  124  Georgia  Reports,  735. 

Action  by  Mrs.  Grizzle  against  the  Southern  Railway  Company 
and  T.  A.  O'Neal. 

The  petition  alleged,  in  substance,  that  the  petitioner's  husband 
was  killed  by  the  negligence  of  the  railway  company,  and  of  O'Neal, 
who  was  the  engineer  in  charge  of  the  train,  while  the  train  was  being 
operated  over  a  pubUc-road  crossing.  It  was  alleged,  inter  alia,  that 
no  bell  was  rung  nor  whistle  sounded,  nor  the  speed  of  the  train 
checked,  and  that  the  requirements  of  the  blow-post  law  ^  were  en- 
tirely disr^arded  by  the  engineer.  To  this  petition  O'Neal  demurred 
on  several  grounds.  The  demurrer  was  overruled,  and  O'Neal 
excepted.* 

Cobb,  P.  J.  1.  An  agent  is  not  ordinarily  liable  to  third  persons 
for  mere  nonfeasance.  Kimbrough  v.  Boswell,  119  Ga.  210.  An 
agent  is,  however,  Uable  to  third  persons  for  misfeasance.'  Nonfeas- 
ance is  the  total  omission  or  failure  of  the  agent  to  enter  upon  the 
performance  of  some  distinct  duty  or  undertaking  which  he  has  agreed 
with  his  principal  to  do.  Misfeasance  means  the  improper  doing  of  an 
act  which  the  agent  might  lawfully  do;  or,  in  other  words,  it  is  the 
performing  of  his  duty  to  his  principal  in  such  a  manner  as  to  infringe 
upon  the  rights  and  privileges  of  third  persons.  Where  an  agent  fails 
to  use  reasonable  care  or  diligence  in  the  performance  of  his  duty,  he 
will  be  personally  responsible  to  a  third  person  who  is  injured  by  such 
misfeasance.  The  agent's  liability  in  such  cases  is  not  based  upon  the 
ground  of  his  agency,  but  upon  the  ground  that  he  is  a  wrong-doer, 
and  as  such  he  is  responsible  for  any  injury  he  may  cause.  When 
once  he  enters  upon  the  performance  of  his  contract  with  his  principal, 
and  in  doing  so  omits,  or  fails  to  take  reasonable  care  in  the  commis- 
sion of,  some  act  which  he  should  do  in  its  performance,  whereby  some 
third  person  is  injured,  he  is  responsible  therefor  to  the  same  extent  as 
if  he  had  committed  the  wrong  in  his  own  behalf.    See  2  Clark  & 

^  Sect,  2222.  ''There  must  be  fixed  on  the  line  of  said  roads,  and  at  the  distance 
of  four  hundred  yards  from  the  centre  of  each  of  such  road  crossings,  and  on  each 
side  thereof,  a  post,  and  the  engineer  shall  be  required,  whenever  he  shall  arrive  at 
either  of  said  posts,  to  blow  the  whistle  of  the  locomotive  until  it  arrives  at  the  pub- 
lic road,  and  to  simultaneously  check  and  keep  checkinj;  the  speed  thereof,  so  as  to 
stop  in  time  should  any  person  or  thing  be  crossing  said  track  on  said  road/' 

sect.  2224.  ''  If  any  engineer  neclects  to  blow  said  whistle  as  required,  and  to 
check  the  speed  as  required^  he  is  guuty  of  a  Doisdemeanor.  .  .  ."  —  Georgia  Code 
of  1895. 

>  Only  so  much  of  the  case  is  siven  as  relates  to  a  single  point.  Statement 
abridged.    Part  of  opinion  <Mnitted. 

»  But  see  Ma^^er  v,  Thompson,  104  Ala.  611 ;  Carter  v.  Atlantic  R.  Co.,  84  S.  C. 
456;  Lough  v.  Davis,  30  Wash.  204. 


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128  SOUTHERN  RAILWAY  COMPANY  V.  GRIZZLE        [CHAP.  H. 

Skyles  on  Agency,  1297  et  seq.  Misfeasance  may  involve  also  to  some 
extent  the  idea  of  not  doing;  as  where  an  agent  engaged  in  the  per- 
formance of  his  undertaking  does  not  do  something  which  it  is  his 
duty  to  do  under  the  circumstances,  or  does  not  take  that  precaution 
or  does  not  exercise  that  care  which  a  due  regard  to  the  rights  of  others 
requires.  All  this  is  not  doing,  but  it  is  not  the  not  doing  of  that  which 
is  imposed  upon  the  agent  merely  by  virtue  of  his  relation,  but  of  that 
which  is  imposed  upon  him  by  law  as  a  responsible  individual  in  com- 
mon with  all  other  members  of  society.  It  is  the  same  not  doing  which 
constitutes  actionable  negligence  in  any  relation.  Mechem  on  Ag. 
§  672.  As  was  said  by  Gray,  C.  J.,  in  Obsome  v.  Morgan,  130  Mass. 
102  (39  Am.  Rep.  439) :  "  If  the  agent  onye  actually  undertakes  and 
enters  upon  the  execution  of  a  particular  work,  it  is  his  duty  to  use 
reasonable  care  in  the  manner  of  executing  it,  so  as  not  to  cause  any 
injury  to  third  persons  which  may  be  the  natural  consequence  of  his 
acts;  and  he  cannot,  by  abandoning  its  execution  midway  and  leaving 
things  in  a  dangerous  condition,  exempt  himself  from  liability  to  any 
person  who  suffers  injury  by  reason  of  his  having  so  left  them  without 
proper  safeguards.  This  is  not  nonfeasance  or  doing  nothing,  but  it  is 
misfeasance,  doing  improperly."  In  that  case  the  agent  was  held  Uable 
by  the  fall  of  a  tackle-block  and  chains  from  an  iron  rail  suspended 
from  the  ceiling  of  a  room,  which  fell  for  the  reason  that  the  agent  had 
suffered  them  to  remain  in  such  a  manner  and  so  unprotected  that 
they  fell  upon  and  injured  the  plaintiff.  In  Bell  v.  Josseljm,  3  Gray, 
309  (63  Am.  Dec.  742),  Metcalf,  J.,  said:  "  Assuming  that  he  was  a 
mere  agent,  yet  the  injury  for  which  this  action  was  brought  was  not 
caused  by  his  nonfeasance,  but  by  his  misfeasance.  Nonfeasance  is 
the  omission  of  an  act  which  a  person  ought  to  do;  misfeasance  is  the 
improper  doing  of  an  act  which  a  person  might  lawfully  do.  .  .  .  The 
defendant's  omission  to  examine  the  state  of  the  pipes,  .  .  .  before 
causing  the  water  to  be  let  on,  was  a  nonfeasance.  But  if  he  had  not 
caused  the  water  to  be  let  on,  that  nonfeasance  would  not  have  injured 
the  plaintiff." 

In  the  present  case  the  failure  of  the  engineer  to  comply  with  the 
requirements  of  the  blow-post  law  was  not  doing,  but  the  running  of 
the  train  over  the  crossing  at  a  high  rate  of  speed  without  giving  the 
signals  required  by  law  was  a  positive  act,  and  the  violation  of  a  duty 
which  both  the  engineer  and  the  railroad  company  owed  to  travelers 
upon  the  highway.  The  engineer  having  once  imdertaken  in  behalf 
of  the  principal  to  run  the  train,  it  was  incumbent  upon  him  to  run 
it  in  the  manner  prescribed  by  law;  and  a  failure  to  comply  with  the 
law,  although  it  involved  an  act  of  omission,  was  not  an  act  of  mere 
nonfeasance,  but  was  an  act  of  misfeasance.  This  view  is  strength- 
ened by  the  fact  that  the  blow-post  law  renders  the  engineer  indict- 
able for  failure  to  comply  with  its  provisions.    The  allegations  of  the 


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SECT,  v.]   BLACK  V.  N.  Y.,  N.  H.,  AND  HARTFORD  R.  CO.      129 

petition  were  therefore  sufl5cient  to  charge  O'Neal  with  a  positive 
tort,  for  which  the  plaintiff  would  be  entitled  to  bring  her  action 
against  him.^ 


BLACK  V.   NEW  YORK,  NEW  HAVEN,  AND 
HARTFORD  R.  CO. 

Supreme  Judicial  Court,  Massachxjsetts,  January  2,  1907. 
Reported  tn  193  MassachusetU  Reports  f  448. 

Tort  for  personal  injuries  alleged  to  have  been  caused  by  the 
negUgence  of  the  servants  of  the  defendant  on  February  7,  1903, 
while  the  plaintiff  was  a  passenger  of  the  defendant.  Writ  dated 
March  20,  1903. 

At  the  trial  in  the  Superior  Court,  Wait,  J.,  at  the  close  of  the  plain- 
tiff's evidence  ordered  a  verdict  for  the  defendant;  and  the  plaintiff 
alleged  exceptions.  The  material  evidence  is  described  or  quoted  in 
the  opinion. 

Knowlton,  C.  J.  This  action  was  brought  to  recover  for  an  injury 
alleged  to  have  been  caused  by  the  negUgence  of  the  defendant's  serv- 
ants. The  plaintiff  was  a  passenger  on  the  defendant's  train,  which 
ran  from  Boston  through  Ashmont  on  the  evening  of  February  7, 
1903.  He  testified  to  having  become  so  intoxicated  that  he  had  no 
recollection  of  anything  that  occurred  after  leaving  a  cigar  store  in 
Boston,  until  he  awoke  in  the  Boston  City  Hospital,  about  four  o'clock 
the  next  day.  One  Thompson  testified  "  that  he  took  the  9.23  train 
on  the  evening  of  February  7,  1903,  at  the  South  Station  in  Boston 
for  Ashmont,  and  occupied  a  seat  near  the  rear  of  the  last  car  of  the 
train;  that  there  were  about  twenty  passengers  in  the  car,  and  he 
noticed  Black  sitting  in  the  seat  opposite,  very  erect,  with  his  eyes 
closed.  When  the  conductor  came  through,  Mr.  Black  went  through 
his  pockets  as  if  he  were  looking  for  a  ticket,  and  not  being  able  to  find 
it,  tendered  a  fifty-cent  piece  in  pajmient  for  his  fare.  The  conductor 
began  to  name  off  the  stations  from  Field's  Comer  first  and  then 
Ashmont  and  when  he  said  '  Ashmont,'  Mr.  Black  nodded  his  head. 
The  conductor  gave  him  his  change  and  his  rebate  check.  At  Ash- 
mont, where  the  train  stops,  there  is  a  gravelled  walk,  running  the 
whole  length,  as  a  platform,  then  there  is  a  flight  of  steps,  ten  or 
twelve,  that  leads  up  to  the  asphalt  walk  around  the  station,  so  when 
you  go  up  from  the  steps  you  have  to  walk  along  this  walk.    The 

»  Stiewel  v.  Borman,  63  Ark.  30;  Owens  v.  Nichols,  139  Ga.  475:  Baird  v.  Ship- 
man,  132  m.  16;  Tippecanoe  Loan  &  Trust  Co.  v.  Jester,  180  Ind.  357;  Ward  v. 
Pullman  Co.,  131  Ky.  142;  Consolidated  Gas  Co.  v,  Connor.  114  Md.  140:  Ellis  v, 
McNaughton,  76  Mich.  237;  Orcutt  v.  Century  Bldg.  Co.,  :201  Mo.  424;  Hagerty 
V.  Montana  (>e  Co.,  38  Mont.  69;  Horner  v.  llawrence,  37  N.  J.  Law,  46;  Scmos- 
ser  V,  Great  Northern  R.  Co.,  20  N.  D.  406, 411;  Greenberg  v,  Whitcomb,  90  Wis. 
225  Accord. 


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130  BLACK  V.  N.  Y.,  N.  H.,  AND  HARTFORD  R.  CO.         [CHAP.  U. 

conductor  and  brakeman  took  Black  out  of  the  car,  with  one  on  each 
side.  The  distance  from  the  steps  of  the  car  to  the  steps  that  lead  up 
to  the  station  was  twenty-five  feet.  As  they  went  along  the  platform, 
the  conductor  and  trainman  were  on  each  side  of  him.  They  tried  to 
stand  him  up,  but  his  legs  would  sink  away  from  him.  They  sort  of 
helped  him  up  and  carried  him  to  the  bottom  of  the  steps.  When 
they  went  to  the  bottom  of  the  steps,  they  continued,  one  on  each  side 
of  him.  Then  one  of  the  men  got  on  one  side  with  his  arm  around  him 
and  the  other  back  of  him  sort  of  pushing  him,  and  they  took  him  up 
about  the  fifth  or  sixth  step,  and  after  they  got  him  up  there,  they 
turned  right  around  and  left  him  and  went  down  the  steps.  Mr.  Black 
sort  of  balanced  himself  there  just  a  minute  and  then  fell  completely 
backward.  He  timied  a  complete  somersault  and  struck  on  the  back 
of  his  head.  The  railroad  men  just  had  time  to  get  down  to  the  foot  of 
the  steps.  There  was  a  railing  that  led  up  those  steps  and  the  steps 
were  about  ten  feet  wide.  Mr.  Black  was  upon  the  right-hand  side 
going  up  and  he  was  left  right  near  the  railing.  When  he  fell,  he  did 
not  seize  hold  of  anything,  his  arms  were  at  his  side." 

On  this  testimony  the  jury  might  find  that  the  plaintiff  was  so  in- 
toxicated as  to  be  incapable  of  standing,  or  walking,  or  caring  for 
himself  in  any  way,  and  that  the  defendant's  servants,  knowing  his 
condition,  left  him  halfway  up  the  steps  where  they  knew,  or  ought  to 
have  known,  that  he  was  in  great  danger  of  falling  and  being  seriously 
injured.  They  were  under  no  obligation  to  remove  him  from  the  car, 
or  to  provide  for  his  safety  after  he  left  the  car.  But  they  voluntarily 
undertook  to  help  him  from  the  car,  and  they  were  bound  to  use  ordi- 
nary care  in  what  they  did  that  n[iight  affect  his  safety.  Not  only  in 
the  act  of  removal,  but  in  the  place  where  they  left  him,  it  was  their 
duty  to  have  reasonable  regard  for  his  safety  in  view  of  his  manifest 
condition.  The  jury  might  have  found  that  they  were  negligent  in 
leaving  him  on  the  steps,  where  a  fall  would  be  likely  to  do  him  much 
harm.    Moody  v.  Boston  &  Maine  Railroad,  189  Mass.  277. 

The  defence  rests  principally  upon  the  fact  that  the  plaintiff  was 
intoxicated,  and  was  incapable  of  caring  for  himself  after  he  was  taken 
from  the  train,  and  therefore  was  not  in  the  exercise  of  due  care.  If 
his  voluntary  intoxication  was  a  direct  and  proximate  cause  of  the 
injury,  he  cannot  recover.  The  plaintiff  contends  that  it  was  not  a 
cause,  but  a  mere  condition,  well  known  to  the  defendant's  servants, 
and  that  their  act  was  the  direct  and  proximate  cause  of  the  injury, 
with  which  no  other  act  or  omission  had  any  causal  connection.  The 
distinction  here  referred  to  is  well  recognized  in  law.  .  .  . 

We  are  of  opinion  that  the  jury  in  the  present  case  might  have 
found  that  the  plaintiff  was  free  from  any  negligence  that  was  a  direct 
and  proximate  cause  of  the  injury.  Exceptions  sustained,^ 

1  Nor£hem  R.  Co.  v.  State,  29  Md.  420;  Dyche  v,  Vicksburg  R.  Ck).,  79  Mias. 
361;  Bresnahan  v.  Loaisdale  Co.,  (R.  I.  1900)  51  Atl.  624  Accord. 


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SECT,  v.]    UNION  PACIFIC  RAILWAY  COMPANY  V.  CAPPIER        131 

UNION   PACIFIC   RAILWAY   COMPANY   v.   CAPPIER 

SuPBEME  CouBT,  Kansas,  Apbil  11,  1903. 

Reported  in  66  Kanaae  Reports,  649. 

Error  from  Wyandotte  District  Court. 

Smith,  J.  This  was  an  action  brought  by  Adeline  Cappier,  the 
mother  of  Irvin  Ezelle,  to  recover  damages  resulting  to  her  by  reason 
of  the  loss  of  her  son,  who  was  run  over  by  a  car  of  plaintiff  in  error, 
and  died  from  the  injuries  received.  The  trial  court,  at  the  close  of 
the  evidence  introduced  to  support  a  recovery  by  plaintiff  below,  held 
that  no  careless  act  of  the  railway  company's  servants  in  the  operation 
of  the  car  was  shown,  and  refused  to  permit  the  case  to  be  considered 
by  the  jury  on  the  allegations  and  attempted  proof  of  such  negligence. 
Tlie  petition,  however,  contained  an  averment  that  the  injured  person 
had  one  leg  and  an  arm  cut  off  by  the  car-wheels,  and  that  the  serv- 
ants of  the  railway  company  failed  to  call  a  surgeon,  or  to  render  him 
any  assistance  after  the  accident,  but  permitted  him  to  remain  by  the 
side  of  the  tracks  and  bleed  to  death.  Under  this  charge  of  negligence 
a  recovery  was  had. 

While  attempting  to  cross  the  railway  tracks  Ezelle  was  struck  by 
a  moving  freight-car  pushed  by  an  engine.  A  yardmaster  in  charge  of 
the  switching  operations  was  riding  on  the  end  of  the  car  nearest  to 
the  deceased  and  gave  warning  by  shouting  to  him.  The  warning  was 
either  too  late  or  no  heed  was  given  to  it.  The  engine  was  stopped. 
After  the  injured  man  was  clear  of  the  track,  the  yardmaster  signalled 
the  engineer  to  move  ahead,  fearing,  as  he  testified,  that  a  passenger 
train  then  about  due  would  come  upon  them.  The  locomotive  and 
car  went  forward  over  a  bridge,  where  the  general  yardmaster  was 
informed  of  the  accident  and  an  ambulance  was  siunmoned  by  tele- 
phone. The  yardmaster  then  went  back  where  the  injured  man 
was  lying  and  found  three  Union  Pacific  switchmen  binding  up  the 
wounded  limbs  and  doing  what  they  could  to  stop  the  flow  of  blood. 
The  ambulance  arrived  about  thirty  minutes  later  and  Ezelle  was 
taken  to  a  hospital,  where  he  died  a  few  hours  afterward. 

In  answer  to  particular  questions  of  fact,  the  jury  found  that  the 
accident  occurred  at  5.35  i^.m.;  that  immediately  one  of  the  railway 
employees  telephoned  to  poUce  headquarters  for  help  for  the  injured 
man;  that  the  ambulance  started  at  6.05  p.  m.  and  reached  the  nearest 
hospital  with  Ezelle  at  6.20  p.m.,  where  he  received  proper  medical 
and  surgical  treatment.  Judgment  against  the  railway  company  was 
based  on  the  following  question  and  answer:  — 

"  Ques.  Did  not  defendant's  employees  bind  up  Ezelle's  wounds 
and  try  to  stop  the  flow  of  blood  as  soon  as  they  could  after  the  acci- 
dent happened  ?    Ans.    No." 

See  also  Willes,  J.,  in  Skelton  v.  London  R.  Co.,  L.  R.  2  C.  P.  631, 636:  Bailey  v. 
Walker,  29  Mo.  407;  Thome  v.  Deas,  4  Johns.  84,  96;  Hyde  v.  Moffat,  16  Vt.  271. 


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132      UNION  PACIFIC  RAILWAY  COMPANY  V.  CAPPIER     [CHAP.  II, 

The  lack  of  diligence  in  the  respect  stated  was  intended,  no  doubt, 
to  apply  to  the  yardmaster,  engineer,  and  fireman  in  charge  of  the  car 
and  engine. 

These  facts  bring  us  to  a  consideration  of  the  legal  duty  of  these 
employees  toward  the  injured  man  after  his  condition  became  known. 
Counsel  for  defendant  in  error  quotes  the  language  found  in  Beach  on 
Contributory  Negligence  (3d  ed.),  §  215,  as  follows:  — 

"  Under  certain  circumstances,  the  railroad  may  owe  a  duty  to  a 
trespasser  after  the  injury.  When  a  trespasser  has  been  run  down,  it 
is  the  plain  duty  of  the  railway  company  to  render  whatever  service 
is  possible  to  mitigate  the  severity  of  the  injury.  The  train  that  has 
occasioned  the  harm  must  be  stopped,  and  the  injured  person  looked 
after;  and,  when  it  seems  necessary,  removed  to  a  place  of  safety,  and 
carefully  nursed,  until  other  reUef  can  be  brought  to  the  disabled 
person." 

The  principal  authority  cited  in  support  of  this  doctrine  is  Northern 
Central  Railway  Co.  v.  The  State,  use  of  Price  et  al,  29  Md.  420,  96 
Am.  Dec.  545.  The  court  in  that  case  first  held  that  there  was  evi- 
dence enough  to  justify  the  jury  in  finding  that  the  operatives  of  the 
train  were  neghgent  in  running  it  too  fast  over  a  road-crossing  without 
sounding  the  whistle,  and  that  the  number  of  brakemen  was  insufl5- 
cient  to  check  its  speed.  Such  negligence  was  held  suflicient  to  uphold 
the  verdict,  and  would  seem  to  be  all  that  was  necessary  to  be  said. 
The  coiut,  however,  proceeded  to  state  that,  from  whatever  cause 
the  collision  occurred,  it  was  the  duty  of  the  servants  of  the  company, 
when  the  man  was  found  on  the  pilot  of  the  engine  in  a  helpless  and 
insensible  condition,  to  remove  him,  and  to  do  it  with  proper  regard 
to  his  safety  and  the  laws  of  himianity.  In  that  case  the  injured  per- 
son was  taken  in  charge  by  the  servants  of  the  railway  company  and, 
being  apparently  dead,  without  notice  to  his  family,  or  sending  for  a 
physician  to  ascertain  his  condition,  he  was  moved  to  defendant's 
warehouse,  laid  on  a  plank  and  locked  up  for  the  night.  The  next 
morning,  when  the  warehouse  was  opened,  it  was  found  that  during 
the  night  the  man  had  revived  from  his  stunned  condition  and  moved 
some  paces  from  the  spot  where  he  had  been  laid,  and  was  found  in  a 
stooping  posture,  dead  but  still  warm,  having  died  from  hemorrhage 
of  the  arteries  of  one  leg,  which  was  crushed  at  and  above  the  knee. 
It  had  been  proposed  to  place  him  in  the  defendant's  station-house, 
which  was  a  comfortable  building,  but  the  telegraph  operator  objected, 
and  directed  him  to  be  taken  into  the  warehouse,  a  place  used  for  the 
deposit  of  old  barrels  and  other  rubbish. 

The  Maryland  case  does  not  support  what  is  so  broadly  stated  in 
Beach  on  Contributory  Negligence.  It  is  cited  by  Judge  Cooley,  in 
his  work  on  Torts,  in  a  note  to  a  chapter  devoted  to  the  negligence  of 
bailees  (ch.  xx.),  indicating  that  the  learned  author  understood  the 
reasoning  of  the  decision  to  apply  where  the  duty  began  after  the 
railway  employees  had  taken  charge  of  the  injm^d  person. 


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SECT.  Vj      UNION  PACIFIC  RAILWAY  COMPANY  V.  CAPPIER      133 

After  the  trespasser  on  the  track  of  a  railway  company  has  been 
injured  in  coUision  with  a  train,  and  the  servants  of  the  company  have 
assumed  to  take  charge  of  him,  the  duty  arises  to  exercise  such  care 
in  hi&  treatment  as  the  circumstances  will  allow.  We  are  imable,  how- 
ever, to  approve  the  doctrine  that  when  the  acts  of  a  trespasser  him- 
self result  in  his  injury,  where  his  own  negligent  conduct  is  alone  the 
cause,  those  in  charge  of  the  instrument  which  inflicted  the  hurt,  being 
innocent  of  wrong-doing,  are  nevertheless  blamable  in  law  if  they  neg- 
lect to  administer  to  the  suflferings  of  him  whose  wounds  we  might 
say  were  self-imposed.  With  the  himiane  side  of  the  question  courts 
are  not  concerned.  It  is  the  omission  or  negUgent  discharge  of  legal 
duties  only  which  come  within  the  sphere  of  judicial  cognizance.  For 
withholding  reUef  from  the  suflfering,  for  failing  to  respond  to  the  calls 
of  worthy  charity,  or  for  faltering  in  the  bestowment  of  brotherly 
love  on  the  unfortunate,  penalties  are  foimd  not  in  the  laws  ,of  men, 
but  in  that  higher  law,  the  violation  of  which  is  condenmed  by  the 
voice  of  conscience,  whose  sentence  of  punishment  for  the  recreant  act 
is  swift  and  sure.  In  the  law  of  contracts  it  is  now  well  understood 
that  a  promise  founded  on  a  moral  obligation  will  not  be  enforced  in 
the  courts.  Bishop  states  that  some  of  the  older  authorities  recognize 
a  moral  obUgation  as  valid,  and  sajrs:  — 

"  Such  a  doctrine,  carried  to  its  legitunate  results,  would  release  the 
tribunals  from  the  duty  to  administer  the  law  of  the  land;  and  put,  in 
the  place  of  law,  the  varying  ideas  of  morals  which  the  changing  in- 
ciunbents  of  the  bench  might  from  time  to  time  entertain."  (Bish. 
Cont.  §  44.) 

Ezelle's  injuries  were  inflicted,  as  the  court  below  held,  without  the 
fault  of  the  yardmaster,  engineer,  or  fireman  in  charge  of  the  car  and 
locomotive.  The  railway  company  was  no  more  responsible  than  it 
would  have  been  had  the  deceased  been  run  down  by  the  cars  of  an- 
other railroad  company  on  a  track  parallel  with  that  of  plaintiff  in 
error.  If  no  duty  was  imposed  on  the  servants  of  defendant  below  to 
take  charge  of,  and  care  for,  the  wounded  man  in  such  a  case,  how 
could  a  duty  arise  under  the  circumstances  of  the  case  at  bar  ?  In 
Barrows  on  NegUgence,  page  4,  it  is  said:  — 

*'  The  duty  must  be  owing  from  the  defendant  to  the  plaintiff, 
otherwise  there  can  be  no  negligence,  so  far  as  the  plaintiff  is  con-  * 
cemed;  .  .  .  and  the  duty  must  be  owing  to  plaintiff  in  an  individual 
capacity,  and  not  merely  as  one  of  the  general  public. 

"  This  excludes  from  actionable  negligence  all  failures  to  observe 
the  obligations  imposed  by  charity,  gratitude,  generosity,  and  the  kin- 
dred virtues.  The  moral  law  would  obligate  an  attempt  to  rescue  a 
person  in  a  perilous  position,  —  as  a  drowning  child,  —  but  the  law  of 
the  land  does  not  require  it,  no  matter  how  little  personal  risk  it  might 
involve,  provided  that  the  person  who  declines  to  act  is  not  respon- 
sible for  the  peril."  (See-,  also,  Kenney  v.  The  Hannibal  &  St.  Joseph 
Raihx)ad  Company,  70  Mo.  252,  257.) 


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134  HUNICKE  V.  MERAMEC  QUARRY  COMPANY       [CHAP.  II. 

In  the  several  cases  cited  in  the  brief  of  counsel  for  defendant  in 
error  to  sustain  the  judgment  of  the  trial  court,  it  will  be  found  that 
the  negligence  on  which  recoveries  were  based  occurred  after  the  time 
when  the  person  injured  was  in  the  custody  and  care  of  those  who 
were  at  fault  in  failing  to  give  him  proper  treatment. 

The  judgment  of  the  court  below  will  be  reversed,  with  directions 
to  enter  judgment  on  the  findings  of  the  jury  in  favor  of  the  railway 
company. 

AU  the  justices  concurring.^ 


HUNICKE  V.  MERAMEC  QUARRY  COMPANY 

Supreme  Court  of  Missouri,  December  19,  1914. 

Reported  in  262  Missouri  Reports^  560. 

WooDSON,  P.  J.  .  .  .  I  do  not  understand  counsel  for  plaintiff  to 
make  the  broad  claim  that,  in  the  absence  of  the  question  of  emer- 
gejuyy,  presented  in  this  case,  it  would  have  been  the  duty  of  the 
defendant  to  have  furnished  medical  or  surgical  treatment  for  the 
injured  man,  upon  the  occasion  mentioned;  but  I  do  understand 
counsel  to  contend,  and  which  I  beheve  is  the  law,  that  when  an 
employee  is  engaged  in  any  dangerous  business  for  the  master,  and 
while  in  the  performance  of  his  duties,  as  such,  he  is  so  badly  injured 
that  he  is  thereby  rendered  physically  or  mentally  incapable  of  pro- 
curing medical  assistance  for  himself,  then  that  duty,  as  a  matter  of 
law,  is  devolved  upon  the  master,  and  that  he  must  perform  that  duty 
with  reasonable  diligence  and  in  a  reasonable  manner,  through  the 
agency  of  such  of  his  employees  as  may  be  present  at  the  time. 

In  other  words,  without  trying  to  state  the  law  in  detail  governing 
the  master's  duties  in  all  cases  of  this  character,  that  duty  is  put  in 
operation  whenever,  under  the  facts  and  circumstances  of  the  case, 
the  employee  is  thereby  so  injured  that  he  or  she  is  incapacitated 
from  caring  for  himself  or  herself,  as  the  case  may  be. 

The  uncontradicted  evidence  in  this  case  shows  that  the  deceased 
was  so  badly  injured  that  he  was  physically  incapacitated  to  care  for 
himself  or  to  engage  medical  or  surgical  treatment;  also,  that  the 
character  of  his  injuries  was  such  as  required  immediate  surgical  at- 
tention, for  it  was  apparent  to  all  present  that  his  leg  was  frightfully 
crushed,  and  that  his  life's  blood  was  freely  flowing  from  his  body. 
So  obvious  was  this  that  several  of  those  present,  at  the  time  of  the 

1  Allen  V,  Hlxson,  111  Ga.  460;  Griswold  v.  Boston  R.  Co..  183  Mass.  434; 
Stager  v.  Laundry  Co.,  38  Or.  480,  489;  SchoU  v.  Belcher,  63  Or.  310:  OUett  v. 
Pennsylvania  R.  Co.,  201  Pa.  St.  361;  King  v.  Interstate  R.  Co.,  23  R.  I.  583; 
Riley  v.  Gulf  R.  Co.,  (Tex.  Civ.  App.)  16  S.  W.  595  Acc&rd.  See  also  Kenney  v. 
Hannibal  R.  Co.,  70  Mo.  252. 

Whitesides  v.  Southern  R.  Co..  128  N.  C.  229  (divided  court)  cmtra.  See  also 
Dyche  v.  Vicksbui;g  R.  Co.,  79  Miss.  361. 


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SECT,  v.]        HUNICKE  V.  MERAMEC  QUARRY  COMPANY  135 

accident,  tried  by  their  crude  methods,  to  stop  its  flow.  But  the 
highest  officer  of  the  company  present,  the  superintendent,  thought 
none  of  their  remedies  were  worthy  of  trial  and  told  them  their  pro- 
posed treatment  would  do  no  good.  He  then  telephoned  to  Dr.  Kirk, 
at  Kimswick,  the  condition  of  the  injured  man,  Hunicke,  and  re- 
quested him  to  come  to  Wicks  and  treat  the  injiu^  man;  but  the 
doctor  being  previously  engaged  in  a  serious  case,  could  not  leave  it. 
The  doctor,  however,  telephoned  the  superintendent  to  bring  the  in- 
jured party  to  Kimswick,  some  two  miles  distant,  and  that  he  would 
there  treayhim. 

The  evidence  shows  that  both  Wicks  and  Kimswick  were  on  the 
railroad  and  that  a  hand-car  was  present  which  could  have  been  used 
in  conveying  Hunicke  from  the  former  to  the  latter  place  for  treat- 
ment. 

For  some  reason  not  made  dear,  the  superintendent  declined  to 
take  the  injured  man  to  Kimswick  for  treatment,  but  telephoned  the 
facts  of  the  injury  to  the  manager  of  the  company  at  St.  Louis,  some 
twelve  or  fourteen  miles  distant,  who  telephoned  back  to  the  super- 
intendent to  place  the  injured  man  on  the  next  train  and  send  him  to 
St.  Louis.  Tliis  was  done;  and  some  three  or  four  hours  later,  the 
train  arrived  in  the  city;  and  upon  the  arrival  of  the  train  Hunicke 
was  speedily  taken  to  the  hospital  where  his  limb  was  amputated; 
but  in  the  meantime  practically  all  of  the  blood  of  his  body  had  flowed 
therefrom,  and  he  died  shortly  thereafter. 

In  the  statement  of  the  case  we. have  set  out  much  of  the  evidence 
tending  to  show  the  negligence  of  the  defendant  in  not  procuring 
surgical  treatment  for  Hunicke  more  promptly,  and  that  he  would 
not  have  died  had  he  received  prompt  treatment.  That  evidence 
tended  to  show  that  Kimswick  was  only  two  miles  distant  from  the 
place  of  injury  and  that  the  injured  man  could  have  been  taken  there 
on  a  hand-car  in  a  very  few  minutes,  probably  from  fifteen  to  twenty, 
at  the  outside.  Had  this  been  done,  in  all  probability  the  flow  of  blood 
would  have  been  stanched  several  hours  before  it  was  finally  stopped 
in  the  city  of  St.  Louis. 

It  is  true  that  there  was  some  evidence  which  tended  to  show  that 
such  a  trip  on  a  hand-car  would  have  been  rough  and  jolting,  and 
thereby  might  have  aggravated  the  flow  of  the  blood,  but  conceding 
that  to  be  true,  it  could  not  have  caused  more  waste  of  blood  than  did 
the  constant  flow  during  the  hours  that  passed  while  he  was  waiting 
for  the  train  and  being  conveyed  to  the  city  of  St.  Louis  thereon.  And 
it  seems  to  me  that  common  sense  would  teach  us  that  a  trip  on  a 
hand-car  to  Kimswick  would  not  have  caused  the  blood  to  flow  more 
freely  than  the  trip  on  the  train  to  St.  Louis,  six  or  seven  times  as  far, 
would  have  done. 

But  be  that  as  it  may,  when  we  consider  those  facts  in  connection 
with  all  the  other  facts  and  circumstances  shown  by  the  evidence,  we 


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136  HUNICKE  V.  MERAMEC  QUARRY  COMPANY        [CHAP.  II. 

have  reached  the  conclusion  that  this,  as  well  as  the  question  of  negli- 
gence in  delaying  the  procurement  of  a  surgeon,  was  for  the  jury,  and 
that  the  evidence  introduced  was  sufficient  to  make  out  a  prima  fade 
case  for  the  plaintiflF. 

In  other  words,  we  are  of  the  opinion  that  the  evidence  tended  to 
show  that  the  company  was  guilty  of  negligence  in  not  using  more 
diligence  in  procuring  medical  and  surgical  treatment  for  this  party; 
also  that  it  tended  to  show  that  said  negligence  was  the  proximate 
cause  of  his  death. 

In  my  opinion  there  is  no  possibility  of  doubt  but  what  the  law  is 
that,  whenever  one  person  employs  another  to  perform  dangerous 
work,  and  while  performing  that  work  he  is  so  badly  injured  as  to 
incapacitate  him  from  caring  for  himself,  then  the  duty  of  providing 
medical  treatment  for  him  is  devolved  upon  the  employer;  and  that 
duty  in  my  opinion,  grows  out  of  the  fact  that  when  we  get  down  to 
the  real  facts  in  all  such  cases,  there  is  an  imexpressed  humane  and 
natural  understanding  existing  between  them  to  the  effect  that  when- 
ever any  one  in  such  a  case  is  so  injured  that  he  cannot  care  for  himself, 
then  the  employer  will  furnish  him  medical  or  surgical  treatment  as 
the  case  may  be. 

This  is  common  knowledge.  There  is  not  an  industrial  institution 
in  this  coimtry,  great  or  small,  where  that  practice  is  not  being  carried 
on  today;  and  that  has  been  the  custom  and  usage  among  men  from 
the  dawn  of  civilization  down  to  the  present  day,  and  will  continue  to 
be  practised  in  the  future,  just  so  long  as  the  himian  heart  beats  in 
sympathy  for  the  unfortunate,  and  desires  to  aid  suffering  humanity. 
The  same  principle  imderhes  all  other  avocations  of  life.  Even  armies 
while  engaged  in  actual  warfare  observe  and  obey  this  rule  when  pos- 
sible. The  soldier  who  refuses  to  render  surgical  or  medical  aid  to  the 
victim  of  his  own  sword,  is  eschewed  by  all  decent  men;  while  upon 
the  other  hand,  all  who  administer  to  the  wants  and  necessities  of  the 
sick  and  wounded  are  considered  as  God's  noblemen  and  as  princes 
among  men.  So  imiversally  true  and  deep-seated  is  this  himiane  feel- 
ing among  men,  and  so  universally  recognized  and  practised  among 
them,  that  it  has  become  a  world-wide  rule  of  moral  conduct  among 
men,  brothers,  friends  and  foes;  and  it  sajrs  to  one  and  all,  You  must 
exercise  all  reasonable  efforts  and  means  at  hand  to  alleviate  the  pain 
and  suffering  and  save  the  Uves  and  limbs  of  those  who  have  been 
stricken  in  your  presence.  For  the  violation  of  this  rule  of  moral 
conduct  there  is  no  penalty  attached  save  the  condemnation  of  God 
and  the  scorn  of  all  good  men  and  women. 

But  seeing  the  wisdom,  goodness  and  justice  of  this  moral  law,  the 
law  of  the  land  laid  its  strong  hand  upon  it,  the  same  as  it  did  upon 
many  other  good  and  useful  customs  of  England,  and  breathed  into 
it  a  living  rule  of  legal  conduct  among  men.   It  says  imto  all  who  em- 


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BECT.  v.]  DEPUE  V.  FLATAU  137 

ploy  labor  that,  because  of  this  universally  practised  custom  of  men 
to  furnish  medical  and  siu'gical  aid  for  those  who  are  stricken  in  their 
presence,  you  must  furnish  the  employee  with  such  services  when  he 
is  so  badly  injured  that  he  is  incapacitated  from  caring  for  himself. 

This  is  but  the  application  or  extension  of  the  common-law  rule 
which  requires  the  master  to  furnish  his  servant  with  a  safe  place  in 
which  to  work,  and  safe  instrumentalities  with  which  to  perform  that 
labor. 

That  law  grew  out  of  the  old  customs  and  usages  of  the  English 
people,  of  furnishing  their  servants  with  a  safe  place  in  which  to  work 
and  safe  instrumentalities  with  which  to  labor.  So  imiversally  true 
was  that  custom  that  the  law  read  into  all  contracts  of  labor  an  im- 
plied promise  on  the  part  of  the  master  to  furnish  those  safeguards  to 
his  servants.  There  is  no  statutory  or  written  law  upon  the  subject. 
It  is  simply  what  is  called  the  unwritten  or  common  law  of  England, 
which  has  been  adopted  by  statutes  in  this  and  many  other  States  of 
the  Union. 

So  in  like  manner  into  the  universal  cilstom  of  employers  furnishing 
his  employees  with  medical  aid  when  so  badly  injured  that  they  could 
not  care  for  fliemselves,  the  common  law,  as  in  the  cases  of  the  safety 
appliances  before  mentioned,  breathed  an  implied  agreement  or  duty 
on  the  part  of  the  former  to  furnish  the  latter  medical  or  surgical  aid 
whenever  he  was  so  badly  injured  that  he  could  not  care  for  himself. 

This  law,  like  the  one  previously  mentioned,  has  no  statutory 
origin,  but  has  ripened  into  a  law  from  wise  and  himiane  usages  and 
customs  that  are  so  old  that  the  memory  of  man  runneth  not  to  the 
contrary,  and  will  continue  so  long  as  the  conduct  of  man  is  prompted 
and  governed  by  love  and  humane  sentiments. 

As  previously  st&ted,  I  am  firmly  of  the  opinion  that  the  petition 
stated  a  good  cause  of  action  against  the  defendant,  and  that  the 
evidence  was  sufficient  to  make  a  case  for  the  jury;  and  so  believing, 
I  think  the  action  of  the  trial  court  in  granting  a  new  trial  to  the 
plaintiff  for  the  first  and  second  reasons  assigned  by  counsel  for 
defendant,  was  not  erroneous,  but  proper.^ 


DEPUE  V.  FLATAU 

Supreme  Court,  Minnesota,  March  15,  1907. 

Reported  in  100  Minnesota  ReportSj  299. 

Action  in  the  District  Court  for  Watonwan  County  to  recover 
$5000  for  personal  injuries.  The  case  was  tried  before  Lorin  Cray,  J., 
who,  at  the  conclusion  of  plaintiff's  testimony,  dismissed  the  action. 

>  Ohio  R.  Co.  V.  Early,  141  Ind.  73;  Raasch  v.  Elite  Laundry  Co.,  98  Minn.  357 
(semble);  Salter  v.  Nebraska  Telephone  Co.,  79  Neb.  373  (semhle)  Accord.  See 
also  Shaw  v.  Milwaukee  R.  Co.,  103  Minn.  8. 

It  has  been  held  also  that  such  a  duty  is  incidental  to  the  relation  of  carrier  and 


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138  DEPUE  V.  PLATAU  [CHAP.  U. 

From  an  order  denying  a  motion  for  a  new  trial,  plaintiff  appealed. 
Reversed. 

Brown,  J.  The  facts  in  this  somewhat  imusnal  case  are  as  follows: 
Plaintiff  was  a  cattle  buyer,  and  accustomed  to  drive  through  the 
coimtiy  in  the  pursuit  of  his  business,  bujring  cattle,  hides,  and  furs 
from  the  farmers.  On  the  evening  of  January  23,  1905,  about  five  or 
5.30  o'clock,  after  having  been  out  a  day  or  two  in  the  country,  he 
called  at  the  house  of  defendants,  about  seven  miles  from  Madelia, 
where  he  resided.  His  object  was  to  inspect  some  cattle  which  Matau, 
Sr.,  had  for  sale,  and  if  arrangements  could  be  made  to  piu*chase  the 
same.  It  was  dark  at  the  time  of  his  arrival,  but  he  inspected  the 
cattle  in  the  bam,  and  suggested  to  defendant  that,  being  unable  to 
determine  their  value  by  reason  of  the  darkness,  he  was  not  prepared 
to  make  an  offer  for  the  cattle,  and  requested  the  privilege  of  remain- 
ing over  ni^t,  to  the  end  that  a  bargain  might  be  made  imderstand- 
ingly  in  the  morning.  His  request  was  not  granted.  Plaintiff  then 
bought  some  furs  from  other  members  of  defendants'  family,  and 
Flatau,  Sr.,  invited  him  to  remain  for  supper.  Under  this  invitation 
plaintiff  entered  the  house,  paid  for  the  furs,  and  was  given  supper 
with  the  family.  After  the  evening  meal,  plaintiff  and  both  defend- 
ants repaired  to  the  sitting-room  of  the  house,  and  plaintiff  made  prep- 
aration to  depart  for  his  home.  His  team  had  not  been  unhitched 
from  the  cutter,  but  was  tied  to  a  hitching  post  near  the  house.  The 
testimony  from  this  point  leaves  the  facts  in  some  doubt.  Plaintiff 
testified  that  soon  after  reaching  the  sitting-room  he  was  taken  with  a 
fainting  spell  and  fell  to  the  floor.  He  remembers  very  Uttle  of  what 
occurred  after  that,  though  he  does  recall  that,  after  fainting,  he  again 
requested  permission  to  remain  at  defendants'  over  night,  and  that  his 
request  was  refused.  Defendants  both  deny  that  this  request  was 
made,  and  testified,  when  called  for  cross-examination  on  the  trial, 
that  plaintiff  put  on  his  overshoes  and  buffalo  coat  imaided,  and  that, 
while  adjusting  a  shawl  about  his  neck,  he  stumbled  against  a  parti- 
tion between  the  dining-room  and  the  sitting-room,  but  that  he  did  not 
fall  to  the  floor.  Defendant  Flatau,  Jr.,  assisted  him  in  arranging  his 
shawl,  and  the  evidence  tends  to  show  that  he  conducted  him  from 
the  house  out  of  doors  and  assisted  him  into  his  cutter,  adjusting  the 
robes  about  him  and  attending  to  other  details  preparatory  to  start- 
ing the  team  on  its  journey.  Though  the  evidence  is  somewhat  in 
doubt  as  to  the  cause  of  plaintiff's  condition  while  in  defendants' 
home,  it  is  clear  that  he  was  seriously  ill  and  too  weak  to  take  care  of 
himself.  He  was  in  this  condition  when  Flatau,  Jr.,  assisted  him 
into  the  cutter.    He  was  unable  to  hold  the  reins  to  guide  his  team, 

passenger.    Lajme  v.  Chicago  R.  Co.,  175  Mo.  App.  35.  41.    Compare  Eambour  v. 
Boston  R.  Co.,  77  N.  H.  33:  Southern  R.  Co.  v.  Sewell,  18  Ga.  App.  544. 

It  has  always  been  regarded  as  incidental  to  the  employment  of  seamen.  The 
Iroquois,  194  U.  S.  240;  iu.  S.  v.  Knowles,  4  Sawy.  517;  Scaxff  v.  Metcalf,  107  N.  Y. 
211. 


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SECT,  v.]  DEPUE  V.  FLATAU  139 

and  young  Flatau  threw  them  over  his  shoulders  and  started  the 
team  towards  home,  going  a  short  distance,  as  he  testified,  for  the 
pmpose  of  seeing  that  the  horses  took  the  right  road  to  Madelia. 
PlaintiflF  was  found  early  next  morning  by  the  roadside,  about  three 
quarters  of  a  mile  from  defendants'  home,  nearly  frozen  to  death. 
He  had  been  taken  with  another  fainting  spell  soon  after  leaving 
defendants'  premises,  and  had  fallen  from  his  cutter,  where  he  re- 
mained the  entire  night.  He  was  discovered  by  a  passing  farmer, 
taken  to  his  home,  and  revived.  The  result  of  his  experience  neces- 
sitated the  amputation  of  several  of  his  fingers,  and  he  was  otherwise 
physically  injured  and  his  health  impaired.  Plaintiff  thereafter 
brought  this  action  against  defendants,  father  and  son,  on  the  theory 
that  his  injuries  were  occasioned  solely  by  their  negUgent  and  wrong- 
ful conduct  in  refusing  him  accommodations  for  the  night,  and,  know- 
ing his  weak  physical  condition,  or  at  least  having  reasonable  grounds 
for  knowing  it,  by  reason  of  which  he  was  unable  to  care  for  himself, 
in  sending  him  out  unattended  to  make  his  way  to  Madelia  the  best 
he  could.  At  the  conclusion  of  plaintiff's  case,  the  trial  court  dis- 
missed the  action,  on  the  ground  that  the  evidence  was  insufficient  to 
justify  a  recovery.  Plaintiff  appealed  from  an  order  denying  a  new 
trial. 

Two  questions  are  presented  for  consideration:  (1)  Whether,  under 
the  facts  stated,  defendants  owed  any  duty  to  plaintiff  which  they 
negligently  violated;  and  (2)  whether  the  evidence  is  sufficient  to 
take  the  case  to  the  jury  upon  the  question  whether  defendants  knew, 
or  imder  the  circxmistances' disclosed  ought  to  have  known,  of  his 
weak  physical  condition,  and  that  it  would  endanger  his  life  to  send 
him  home  unattended. 

The  case  is  an  unusual  one  on  its  factfe,  and  "  all-four  "  precedents 
are  difficult  to  find  in  the  books.  In  fact,  after  considerable  research, 
we  have  foimd  no  case  whose  facts  are  identical  with  those  at  bar. 
It  is  insisted  by  defendants  that  they  owed  plaintiff  no  duty  to  enter- 
tain him  during  the  night  in  question,  and  were  not  guilty  of  any 
negligent  misconduct  in  refusing  him  accommodations,  or  in  sending 
him  home  im3er  the  circxmistances  disclosed.  Reliance  is  had  for 
support  of  this  contention  upon  the  general  rule  as  stated  in  note  to 
Union  Pacific  v.  Cappier,  [66  Kan.  649,  72  Pac.  281]  69  L.  R.  A.  513, 
where  it  is  said:  "  Those  duties  which  are  dictated  merely  by  good 
morals  or  by  humane  considerations  are  not  within  the  domain  of  the 
law.  Feelings  of  kindlinefe  toft  ^sympathy  maytifove  the  Good  Sa- 
maritan to  minister  to  the  needs  of  the  sick  and  wounded  at  the  road- 
side, but  the  law  imposes  no  such  obligation;  and  suffering  humanity 

has  no  legal  complaint  against  those  who  pass  by  on  the  other  side 

Unless,  therefore,  the  relation  existing  between  the  sick,  helpless,  or 
injured  and  those  who  witness  their  distress  is  such  that  the  law  im- 
poses the  duty  of  providing  the  necessary  relief,  there  is  neither  obliga- 


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140  DEPUE  V.  FLATAU  [CHAP.  II. 

tion  to  minister  on  the  one  hand,  nor  cause  for  l^al  complaint  on  the 
other."  This  is  no  doubt  a  correct  statement  of  the  general  rule 
appUcable  to  the  Good  Samaritan,  but  it  by  no  means  controls  a  case 
like  that  at  bar. 

The  facts  of  this  case  bring  it  within  the  more  comprehensive  prin- 
ciple that  whenever  a  person  is  placed  in  such  a  position  with  regard 
to  another  that  it  is  obvious  that,  if  he  does  not  use  due  care  in  his  own 
conduct,  he  will  cause  injury  to  that  person,  the  duty  at  once  arises  to 
exercise  care  commensurate  with  the  situation  in  which  he  thiis  finds 
himself,  and  with  which  he  is  confronted,  to  avoid  such  danger;  and 
a  negligent  failure  to  perform  the  duty  renders  him  liable  for  the 
consequences  of  his  ne^ect. 

This  principle  appUes  to  varied  situations  arising  from  non-contract 
relations.  It  protects  the  trespasser  from  wanton  or  wilful  injiuy. 
Its  extends  to  the  licensee,  and  requires  the  exercise  of  reasonable  care 
to  avoid  an  unnecessary  injiuy  to  him.  It  imposes  upon  the  owner  of 
premises,  which  he  expressly  or  impUedly  invites  persons  to  visit, 
whether  for  the  transaction  of  business  or  otherwise,  the  obligation  to 
keep  the  same  in  reasonably  safe  condition  for  use,  though  it  does  not 
embrace  those  sentimental  or  social  duties  often  prompting  human 
action.  21  Am.  &  Eng.  Enc.  (2d  ed.)  471;  Barrows,  Neg.  3.  Those 
entering  the  premises  of  another  by  invitation  are  entitled  to  a  higher 
degree  of  care  than  those  who  are  present  by  mere  sufiferance.  Bar- 
rows, Neg.  304.  The  rule  stated  is  supported  by  a  long  Hst  of  authori- 
ties both  in  England  and  this  country,  and  is  expressed  in  the  familiar 
maxim,  "  Sic  utere  tuOj*^  etc.  They  will  be  found  collected  in  the  works 
above  cited,  and  also  in  1  Thompson,  Neg.  (2d  ed.),  §  694.  It  is  thus 
stated  in  Heaven  v,  Pender,  L.  R.  11  Q.  B.  Div.  503:  "  The  proposi- 
tion which  these  recognized  eases  suggest,  and  which  is,  therefore,  to 
be  deduced  from  them,  is  that,  whenever  one  person  is  by  circimi- 
stances  placed  in  such  a  position  with  regard  to  another  that  every  one 
of  ordinary  sense  who  did  think  would  at  once  recognize  that  if  he  did 
not  use  ordinary  care  and  skill  in  his  own  conduct  with  regard  to  those 
circumstances  he  would  cause  danger  of  injiuy  to  the  person  or  prop- 
erty of  the  other,  a  duty  arises  to  use  ordinary  care  and  skill  to  avoid 
such  danger."  It  applies  with  greater  strictness  to  conduct  towards 
persons  under  disability,  and  imposes  the  obligation  as  a  matter  of 
law,  not  mere  sentiment,  at  least  to  refrain  from  any  affirmative  action 
that  might  result  in  injury  to  them.  A  valuable  note  to  Union  Pacific 
V.  Cappier,  69  L.  R.  A.  513,  discusses  at  length  the  character  of  the 
duty  and  obligation  of  those  coming  into  relation  with  sick  and  dis- 
abled persons,  and  numerous  analogous  cases  are  collected  and 
analyzed. 

In  the  case  at  bar  defendants  were  under  no  contract  obligation  to 
minister  to  plaintiff  in  his  distress;  but  humanity  demanded  that  they 
do  so,  if  they  understood  and  appreciated  his  condition.    And,  though 


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SECT,  v.]  DEPUE  V.  FLATAU  141 

those  acts  which  humanity  demands  are  not  alwa3rs  legal  obligations, 
the  rule  to  which  we  have  adverted  applied  to  the  relation  existing 
between  these  parties  on  this  occasion  and  protected  plaintiflF  from 
acts  at  their  hands  that  would  expose  him  to  personal  harm.  He  was 
not  a  trespasser  upon  their  premises,  but^  on  the  contrary,  was  there 
by  the  express  invitation  of  Flatau,  Sr.  He  was  taken  suddenly 
ill  while  their  guest,  and  the  law,  as  well  as  himianity,  required 
that  he  be  not  exposed  in  his  helpless  condition  to  the  merciless 
elements. 

The  case,  inife  substantial  facts,  is  not  imlike  that  of  Cincinnati  v, 
Marrs'  Adm'x,  27  Ky.  Law,  388,  85  S.  W.  188,  70  L.  R.  A.  291.  In 
that  case  it  appears  that  one  Marrs  was  found  asleep  in  the  yards  of 
the  railway  company  in  an  intoxicated  condition.  The  yard  em- 
ployees discovered  him,  aroused  him  from  his  stupor,  and  ordered  him 
off  the  tracks.  They  knew  that  he  was  intoxicated,  and  that  he  had 
left  a  train  recently  arrived  at  the  station,  and  he  appeared  to  them 
dazed  and  lost.  About  forty  minutes  later,  while  the  yard  employees 
were  engaged  in  switching,  they  ran  over  him  and  kill^  him.  He  had 
again  fallen  asleep  on  one  of  the  tracks.  The  coiut  held  the  railway 
company  liable;  that,  imder  the  circmnstances  disclosed,  it  was  the 
duty  of  the  yard  employees  to  see  that  Marrs  was  safely  out  of  the 
yards,  or,  in  default  of  that,  to  exercise  ordinary  care  to  avoid  injur- 
ing him;  and  that  it  was  reasonable  to  require  them  to  anticipate  his 
probable  continued  presence  in  the  yards.  The  case  at  bar  is  much 
stronger,  for  here  plaintiff  was  not  intoxicated,  nor  a  trespasser,  but, 
on  the  contrary,  was  in  defendants'  house  as  their  guest,  and  was  there 
taken  suddenly  ill  in  their  presence,  and,  if  his  physical  condition  was 
known  and  appreciated,  they  must  have  known  that  to  compel  him  to 
.leave  their  home  unattended  would  expose  him  to  serious  danger. 

We  imderstand  from  the  record  that  the  learned  trial  court  held  in 
harmony  with  the  view  of  the  law  here  expressed,  but  dismissed  the 
action  for  the  reason,  as  stated  in  the  memorandum  denjring  a  new 
trial,  that  there  was  no  evidence  that  either  of  the  defendants  knew, 
or  in  the  exercise  of  ordinary  care  should  have  known,  plaintiff's  phys- 
ical condition,  or  that  allowing  him  to  proceed  on  his  journey  would 
expose  him  to  danger.  Of  coiu-se,  to  make  the  act  of  defendants  a 
violation  of  their  duty  in  the  premises,  it  should  appear  that  they 
knew  and  appreciated  his  serious  condition.  The  evidence  on  this 
feature  of  the  case  is  not  so  clear  as  might  be  desired,  but  a  majority 
of  the  court  are  of  opinion  that  it  is  sufficient  to  charge  both  defend- 
ants with  knowledge  of  plaintiff's  condition — ^jj^|g|||jy^jj|^jj^^|j^ 

Defendant  Flatau/or.,  testified  that  he  was  in  the  room  at  all  times 
while  plaintiff  was  in  the  house  and  observed  his  demeanor,  and, 
though  he  denied  that  plaintiff  fell  to  the  floor  in  a  faint  or  otherwise, 
yet  the  fact  that  plaintiff  was  seriously  ill  cannot  be  questioned. 


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142  DEPUE  V.   FLATAU  [CHAP.  II. 

Ratau,  Jr.,  conducted  him  to  his  cutter,  assisted  him  in,  observed  that 
he  was  incapable  of  holding  the  reins  to  guide  his  team,  and  for  that 
reason  threw  them  over  his  shoulders.  If  defendants  knew  and  ap- 
preciated his  condition,  their  act  in  sending  him  out  to  make  his  way 
to  Madelia  the  best  he  could  was  wrongful  and  rendered  them  liable 
in  damages.  We  do  not  wish  to  be  imderstood  as  holding  that  de- 
fendants were  imder  absolute  duty  to  entertain  plaintiflF  during  the 
night.  Whether  they  could  conveniently  do  so  does  not  appear.  What 
they  should  or  could  have  done  in  the  premises  can  only  be  deter- 
mined from  a  full  view  of  the  evidence  disclosing  their  situation,  and 
their  faciUties  for  communicating  his  condition  to  his  friends,  or  near 
neighbors,  if  any  there  were.  All  these  facts  will  enable  the  jury  to  . 
determine  whether,  within  the  rules  of  negUgence  appUcable  to  the 
case,  defendants  neglected  any  duty  they  owed  plaintM. 

Order  reversed,^ 

Dutch  Penal  Code,  Art.  450.  One  who,  witnessing  the  danger  of  death 
with  which  another  is  suddenly  threatened,  neglects  to  give  or  furnish  him 
such  assistance  as  he  can  give  or  procure  without  reasonable  fear  of  danger  to 
himself  or  to  others,  is  to  be  punished,  if  the  death  of  the  person  in  distress  fol- 
lows, by  a  detention  of  three  months  at  most  and  an  amende  of  three  himdred 
florins  at  most. 

German  Civil  Code,  section  826.  One  who  wilfully  brings  about  damage 
to  another  in  a  manner  running  counter  to  good  morals  is  bound  to  make 
reparation  to  the  other  for  the  damage. 

Stammler,  Lehre  von  DEM  RiCHTiOEN  Rechte,  489-490.  ''  I  am  walking 
along  the  bank  of  a  river,"  8S.ys  liszt  in  his  stimulating  discussion  of  this 
subject, "  and  I  see  a  man  fall  in  the  water  and  struggle  with  the  waves.  I  am 
able  to  rescue  him  without  any  peril  to  myself;  I  neglect  to  do  so  although 
other  help  is  not  at  hand  and  I  foresee  that  he  must  drown.  In  my  opinion, 
liability  under  section  826  cannot  be  denied.''  [Liszt,  Die  Deliktsobligationen . 
des  B.  G.  B.,  72.)    Surely  not. 

Planck,  BttRGERUCHES  Gesbtzbuch  (3d  ed.),  II,  995  (§  826,  note  e).  The 
duty  to  make  reparation  for  damage  under  section  826  may  also  be  groimded 
upon  an  omission.  But  it  is  presupposed  that  th^  act  which  was  omitted  must 
be  regarded,  under  the  circumstances  of  the  case,  as  commanded  by  good 
morals  and  that  the  omission  took  place  with  the  purpose  of  bringing  about 
injury  to  the  other.  If  one  holds  fast  to  this,  the  consequences  which  result 
from  the  foregoing  principle  are  not  as  doubtful  as  Liszt  (p.  72)  seems  to 
assume. 

Bentham,  Complete  Works  (Bowring's  ed.)  I,  164. 

There  is  simple  corporal  injury,  when,  without  lawful  cause,  an  individual, 
seeing  another  in  danger,  abstains  from  helping  him,  and  the  evil  happens  in 
jjonsequence. 

1  See  also  Weyniire  v.  Wolfe.  52  l&: SS^Twoi  v.  Watidns,  148  Mo.  App*  621. 
Compare  Texas  R.  Co.  v.  Geraldon,  64  Tex.' Civ.  App.  71. 

On  the  whole  subject,  see  Ames,  Law  and  Morals,  22  Harvard  Law  Rev.  99. 
111-113;  Bohlen,  The  Moral  Duty  to  Aid  Others  as  a  Basis  of  Tort  Liability,  66 
University  of  Pennsylvania  Law  Rev.  217,  316;  Bruce,  Humanity  and  the  Law, 
73  Central  Law  Joum.  336. 


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SECT,  v.]  DEPUE  V.  FLATAU  143 

Explanations :  —  Ahstcdns  from  helping  him. 

Every  man  is  bound  to  assist  those  who  have  need  of  assistance,  if  he  can 
do  it  without  exposing  himself  to  sensible  inconvenience.  This  obligation  is 
stronger  in  proportion  as  the  danger  is  the  grater  for  the  one,  and  the  trouble 
of  preserving  him  the  less  for  the  other.  Such  would  be  the  case  of  a  man 
sleeping  near  the  fire,  and  an  individual  seeing  the  clothes  of  the  first  catch 
fire,  and  doing  nothing  towards  extinguishing  them:  the  crime  wotdd  be 
greater  if  he  refrained  from  acting  not  simply  from  idleness,  but  from  malice 
or  some  pecuniary  interest. 

Bentham,  PRiNaPLES  OP  MoRAXS  AND  LEGISLATION,  chap.  xix,  sec.  1,  Par. 
xix  (Clarendon  Press  reprint,  pp.  322-323). 

As  to  the  rules  of  beneficence,  these,  as  far  as  concerns  matters  of  detail, 
must  necessarily  be  abandoned  in  great  measure  to  the  jurisdiction  of  private 
ethics.  .  .  . 

The  limits  of  the  law  on  this  head  seem,  however,  to  be  capable  of  being  ex- 
tended a  good  deal  farther  than  they  seem  ever  to  have  been  extended  hitherto. 
In  particular,  in  cases  where  the  person  is  in  danger,  why  should  it  not  be 
made  the  duty  of  every  man  to  save  another  from  mischief,  when  it  can  be 
done  without  prejudicing  himself,  as  well  as  to  abstain  from  bringing  it  on 
him.    This  accordingly  is  the  idea  pursued  in  the  body  of  the  work.* 

BenthaM;  Theory  op  Legislation,  transl.  by  Hildreth  (5th  ed.),  pp.  65- 
66. 

As  to  beneficence,  some  distinctions  are  necessary.  The  law  may  be  ex- 
tended to  general  objects,  such  as  the  care  of  the  poor;  but,  for  details,  it  is 
necessary  to  depend  upon  private  morality.  .  .  . 

However,  instead  of  having  done  too  much  in  this  respect,  legislators  have 
not  done  enou^.  They  ought  to  erect  into  an  offence  the  refusal  or  the  omis- 
sion of  a  service  of  humanity  when  it  would  be  easy  to  render  it,  and  when 
some  distinct  iU  clearly  results  from  the  refusal;  such,  for  example,  as  abui- 
doning  a  wounded  man  in  a  solitary  road  without  seeking  any  assistanpe  for 
him;  not  giving  information  to  a  man  who  is  nef^dgently  meddling  with 
poisons;  not  reaching  out  the  hand  to  one  who  has  fallen  into  a  ditch  from 
which  he  cannot  extricate  himself;  in  these,  and  other  similar  cases,  could  any 
fault  be  found  with  a  punishment,  exposing  the  delinquent  to  a  certain  degree 
of  shame,  or  sub j  ecting  him  to  a  pecuniary  responsibility  for  the  evil  which  he 
mi^t  have  prevented  ? 

LrviNOSTON,  Drapt  Code  op  Crimes  and  Punishments  por  the  State 
OP  Louisiana.  Livingston,  Complete  Works  on  Criminal  Jurisprudence,  11, 
126-127. 

Article  484.  Homicide  by  omission  only,  is  committed  by  voluntarily  per- 
mitting another  to  do  an  act  that  must,  in  the  natural  course  of  things,  cause 
his  death,  without  appiisuig  him  of  his  cianger,  if  the  act  be  involuntary,  or 
endeavoring  to  prevent  it  if  it  be  voluntary.  He  shall  be  presumed  to  have 
permitted  it  voluntarily  who  omits  the  necessary  means  of  preventing  the 
death,  when  he  knows  the  danger,  and  can  cause  it  to  be  avoided,  without  dan- 

*  A  woman's  head-dress  catches  fire:  water  is  at  hand:  a  man,  instead  of  assist- 
ing to  quench  the  fire,  looks  on  and  laughs  at  it.  A  drunken  man,  falling  with  his 
face  downwards  into  a  puddle,  is  in  danger  of  suffocation:  lifting  his  h^  a  little 
on  one  side  would  save  tiim :  another  man  sees  this  and  lets  him  lie.  A  quantity  oi 
gunpowder  lies  scattered  about  a  room :  a  man  is  going  into  it  with  a  lidbted  candle : 
another,  knowins  this,  lets  him  go  in  without  warning.  Who  is  there  that  in  any  of 
these  cases  would  think  punishment  misapplied  ?  —  Author's  Note. 


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144  DEPUE  V.  FLATAU  [CHAP.  II. 

ger  of  personal  injury  or  pecuniary  loss.  This  rule  may  be  illustrated  by  the 
examples  put  in  the  last  preceding  article:  if  the  blind  man  is  seen  walking 
to  the  precipice  by  one  who  knows  the  danger,  can  easily  apprise  him  of  it,  but 
does  not;  or  if  one  who  knows  that  a  glass  contains  poison,  sees  him  about 
to  drink  it,  either  by  mistake  or  with  intent  to  destroy  himself,  and  makes  no 
attempt  to  prevent  him:  in  these  cases  the  omission  amounts  to  homicide.^ 

Macaulay,  Notes  to  Draft  op  Indian  Penal  CJodb.  Penal  Code  Pre- 
pared by  the  Indian  Law  Commissioners.'  Chapter  xviii  [page  76].  Of 
Offences  Affecting  the  Human  Body.    Of  Offences  Affecting  Life. 

294.  Whoever  does  any  act  or  omits  what  he  is  legally  bound  to  do,  with 
the  intention  of  thereby  causing,  or  with  the  knowledge  that  he  is  likely 
thereby  to  cause,  the  death  of  any  person,  and  does  by  such  act  or  omission 
cause  the  death  of  any  person,  is  said  to  commit  the  offence  of  "  voluntary 
culpable  homicide." 

Note  M.^  On  Offences  Against  the  Body.  Notes  to  Draft  of  Penal  Code, 
53-56;  Macaulay's  Complete  Works  (En^h  ed.,  1875),  vol.  Vn,  pp.  493- 
497;  Morgan  and  McPherson,  Indian  Penal  Code,  225,  226,  notes. 

The  first  class  of  offences  against  the  body  consists  of  those  offences  which 
affect  human  life;  and  highest  in  this  first  class  stand  those  offences  which  fall 
imder  the  definition  of  volimtary  culpable  homicide. 

This  important  part  of  the  law  appears  to  us  to  require  fuller  explanation 
than  almost  any  other. 

The  first  point  to  which  we  wish  to  call  the  attention  of  his  Lordship  in 
Council  is  the  expression  "  omits  what  he  is  legally  bound  to  do,"  in  the  defi- 
nition of  voluntary  culpable  homicide.  These  words,  or  other  words  tanta- 
mount in  effect,  frequently  recur  in  the  Code.  We  think  this  the  most 
convenient  place  for  explaining  the  reason  which  has  led  us  so  often  to  employ 
them.  For  if  that  reason  shall  appear  to  be  sufiScient  in  cases  in  which  hiunan 
life  is  concerned,  it  will  a  fortiori  be  sufficient  in  other  cases. 

Early  in  the  progress  of  the  Code  it  became  necessary  for  us  to  consider  the 
following  question:  When  acts  are  made  punishable  on  the  ground  that  those 
acts  produce,  or  are  intended  to  produce,  or  are  known  to  be  likely  to  produce 
certain  evil  effects,  to  what  extent  ought  omissions  which  produce,  which  are 
intended  to  produce,  or  which  are  known  to  be  likely  to  produce  the  same  evil 
effects  to  be  made  punishable  ? 

Two  things  we  take  to  be  evident:  first,  that  some  of  these  omissions  ou^t 
to  be  punished  in  exactly  the  same  manner  in  which  acts  are  punished:  sec- 
ondly, that  all  these  omissions  ought  not  to  be  punished.  It  will  hardly  be  dis- 
puted that  a  jailer  who  voluntarily  causes  the  death  of  a  prisoner  by  omitting 
to  supply  that  prisoner  with  food,  or  a  nurse  who  voluntarily  causes  the  death 
of  an  infant  intrusted  to  her  care  by  omitting  to  take  it  out  of  a  tub  of  water 
into  which  it  has  fallen,  ought  to  be  treated  as  guilty  of  murder.  On  the  other 
hand,  it  will  hardly  be  maintained  that  a  man  should  be  punished  as  a  mur- 
derer because  he  omitted  to  relieve  a  beggar,  even  though  there  might  be  the 
clearest  proof  that  the  death  of  the  beggar  was  the  result  of  the  omission,  and 
that  the  man  who  omitted  to  give  the  alms  knew  that  the  death  of  the  beggar 

*  This  propoeed  code  was  not  enacted. 

*  A  Penal  Code  prepared  by  the  Indian  Law  Commissioners,  and  published  by 
command  of  the  Governor-General  of  India  in  Council;  Calcutta,  1837. 

*  As  to  the  authorship  of  these  notes,  see  the  preface  to  the  English  edition 
(1875)  of  Macaulay's  Works.  As  to  the  code  itself,  see  Stephen,  History  of  the 
Criminal  Law  of  England,  298-323. 


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SECT,  v.]  DEPUE  V,  FLA-PAU  145 

was  likely  to  be  the  effect  of  the  omission.  It  will  hardly  be  maintained  that 
a  surgeon  ought  to  be  treated  as  a  murderer  for  refusing  to  go  from  Calcutta 
to  Meerut  to  perform  an  operation,  although  it  should  be  absolutely  certain 
that  this  surgeon  was  the  only  person  in  India  who  could  perform  it,  and  that 
if  it  were  not  performed  the  person  who  required  it  would  die.  It  b  difficult 
to  say  whether  a  Penal  Code  which  should  put  no  omissions  on  the  same  foot- 
ing with  acts,  or  a  Penal  Code  which  should  put  all  omissions  on  the  same 
footing  with  acts  would  produce  consequences  more  absurd  and  revolting. 
There  is  no  country  in  which  either  of  these  principles  is  adopted.  Indeed,  it 
is  hard  to  conceive  how,  if  either  were  adopted,  society  could  be  held  together. 

It  is  plain,  therefore,  that  a  middle  course  must  be  taken.  But  it  is  not  easy 
to  determine  what  that  middle  course  ought  to  be.  The  absurdity  of  the  two 
extremes  is  obvious.  But  there  are  innumerable  intermediate  points;  and 
wherever  the  line  of  demarcation  may  be  drawn  it  will,  we  fear,  include  some 
cases  which  we  might  wish  to  exempt,  and  will  exempt  some  which  we  might 
wish  to  include. 

Mr.  Livingston's  Code  provides  that  a  person  shall  be  considered  as  guilty 
of  homicide  who  omits  to  save  life,  which  he  could  save  "  without  personal 
danger  or  pecuniary  loss."  This  rule  appears  to  us  to  be  open  to  serious  objec- 
tion. There  may  be  extreme  inconvenience  without  the  smallest  personal 
danger,  or  the  smallest  risk  of  pecuniary  loss;  as  in  the  case  which  we  lately 
put  of  a  surgeon  smnmoned  from  Calcutta  to  Meerut  to  perform  an  operation. 
He  may  be  offered  such  a  fee  that  he  would  be  a  gainer  by  going.  He  may 
have  no  ground  to  apprehend  that  he  should  run  any  greater  personal  risk  by 
journeying  to  the  Upper  Provinces  than  by  continuing  to  reside  in  Bengal. 
But  he  is  about  to  proceed  to  Europe  hnmediately,  or  he  expects  some  mem- 
bers of  his  family  by  the  next  ship,  and  wishes  to  be  at  the  presidency  to 
receive  them.  He,  therefore,  refuses  to  go.  Surely,  he  ought  not,  for  so  reus- 
ing, to  be  treated  as  a  murderer.  It  would  be  somewhat  inconsistent  to  punish 
one  man  for  not  staying  three  months  in  India  to  save  the  life  of  another,  and 
to  leave  wholly  unpunished  a  man  who,  enjoying  ample  wealth,  should  refuse 
to  disburse  an  anna  to  save  the  life  of  another.  Again,  it  appears  to  us  that  it 
may  be  fit  to  punish  a  person  as  a  murderer  for  causing  death  by  omitting  an 
act  which  cannot  be  performed  without  personal  datiger  or  pecuniary  loss. 
A  parent  may  be  unable  to  procure  food  for  an  infant  without  money.  Yet 
the  parent,  if  he  has  the  meanis,  is  bound  to  furnish  the  infant  with  food,  and 
if.  by  omitting  to  do  so  he  voluntarily  causes  its  death,  he  may  with  propriety 
be  treated  as  a  murderer.  A  nurse  hired  to  attend  a  person  suffering  from  an 
infectious  disease  cannot  perform  her  duty  without  running  some  risk  of 
infection.  Yet  if  she  deserts  the  sick  person,  and  thus  voluntarily  causes  his 
death,  we  should  be  disposed  to  treat  her  as  a  murderer. 

We  pronounce  with  confidence,  therefore,  that  the  line  ought  not  to  be 
drawn  where  Mr.  Livingston  has  drawn  it.  But  it  is  with  great  diffidence  that 
we  bring  forward  our  own  proposition.  It  is  open  to  objections :  cases  may  be 
put  in  which  it  will  operate  too  severely,  and  cases  in  which  it  will  operate  too 
leniently;  but  we  are  imable  to  devise  a  better. 

What  we  propose  is  this,  that  where  acts  are  made  punishable  on  the  ground 
that  they  have  caused,  or  have  been  intended  to  cause,  or  have  been  known  to 
be  likely  to  cause  a  certain  evil  effect,  omissions  which  have  caused,  which 
have  b€«n  intended  to  cause,  or  which  have  been  known  to  be  likely  to  cause 
the  same  effect  shall  be  punishable  in  the  same  manner;  provided  that  such 


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146  DEPUE  V.  FLATAU  [CHAP.  II. 

omissions  were,  on  other  grounds,  illegal.  An  omission  is  illegal  (see  clause  28) 
if  it  be  an  offence,  if  it  be  a  breach  of  some  direction  of  law,  or  if  it  be  such  a 
wrong  as  would  be  a  good  ground  for  a  civil  action. 

We  cannot  defend  this  rule  better  than  by  giving  a  few  illustrations  of  the 
way  in  which  it  will  operate.  A  omits  to  give  Z  food,  and  by  that  omission  vol- 
untarily causes  Z's  death.  Is  this  murder  ?  Under  our  rule  it  is  murder  if  A 
was  Z's  jailer,  directed  by  the  law  to  furnish  Z  with  food.  It  is  murder  if  Z 
was  the  infant  child  of  A,  and  had  therefore  a  legal  right  to  sustenance,  which 
right  a  civil  court  would  enforce  against  A.  It  is  murder  if  Z  was  a  bedridden 
invalid,  and  A  a  nurse  hired  to  feed  Z.  It  is  murder  if  A  was  detaining  Z  in 
unlawful  confinement,  and  had  thus  contracted  (see  clause  338)  a  legal  obli- 
gation to  furnish  Z,  during  the  continuance  of  the  confinement,  with  neces- 
saries. It  is  not  murder  if  Z  is  a  beggar  who  has  no  other  claim  on  A  man 
that  of  humanity. 

A  omits  to  tell  Z  that  a  river  is  swollen  so  high  that  Z  cannot  safely  attempt 
to  ford  it,  and  by  this  omission  voluntarily  causes  Z's  death.  This  is  murder 
if  A  is  a  peon  stationed  by  authority  to  warn  travellers  from  attempting  to 
ford  the  river.  It  is  murder  if  A  is  a  guide  who  had  contracted  to  conduct  Z. 
It  is  not  murder  if  A  is  a  person  on  whom  Z  has  no  other  claim  than  that  of 
humanity. 

A  savage  dog  fastens  on  Z;  A  omits  to  call  off  the  dog,  knowing  that  if  the 
dog  be  not  called  off  it  is  likely  that  Z  will  be  killed.  Z  is  killed.  This  is 
murder  in  A,  if  the  dog  belonged  to  A,  inasmuch  as  his  omission  to  take  proper 
order  with  the  dog  is  illegal  (clause  273).  But  if  A  be  a  mere  passer-by  it  is 
not  murder. 

We  are  sensible  that  in  some  of  the  oases  which  we  have  put,  our  rule  may 
appear  too  lenient.  But  we  do  not  think  that  it  can  be  made  more  severe, 
without  disturbing  the  whole  order  of  society.  It  is  true  that  the  man  who, 
having  abundance  of  wealth,  suffers  a  fellow  creature  to  die  of  himger  at  his 
feet,  b  a  bad  man,  —  a  worse  man,  probably,  than  many  of  those  for  whom  we 
have  provided  very  severe  pimishment.  But  we  are  unable  to  see  where,  if  we 
make  such  a  man  legally  punishable,  we  can  draw  the  line.  If  the  rich  man 
who  refuses  to  save  a  beg^^s  life  at  the  cost  of  a  little  copper  is  a  murderer,  is 
the  poor  man  just  one  d^p'ee  above  beggary  also  to  be  a  murderer  if  he  omits 
to  invite  the  beggar  to  partake  his  hard-earned  rice  ?  Again,  if  the  rich  man  is 
a  murderer  for  refusing  to  save  the  beggar's  life  at  the  cost  of  a  little  copper, 
is  he  also  to  be  a  murderer  if  he  refuses  to  save  the  beggar's  life  at  the  cost 
of  a  thousand  rupees  ?  Suppose  A  to  be  fully  convinced  that  nothing  can  save 
Z's  life,  unless  Z  leave  Bengal  and  reside  a  year  at  the  Cape,  is  A,  however 
wealthy  he  may  be,  to  be  punished  as  a  miurderer  because  he  will  not,  at  his 
own  expense,  send  Z  to  the  Cape  ?  Surely  not.  Yet  it  will  be  diflficult  to  say 
on  what  principle  we  can  punish  A  for  not  spending  an  anna  to  save  Z's  life, 
and  leave  him  unpimished  for  not  spending  a  thousand  rupees  to  save  Z's  life. 
The  distinction  between  a  legal  and  an  illegal  omission  is  perfectly  plain  and 
intelligible.  But  the  distinction  between  a  large  and  a  small  sum  of  money  is 
very  far  from  being  so;  not  to  say  that  a  sum  which  is  small  to  one  man  is 
large  to  another. 

The  same  argument  holds  good  in  the  case  of  the  ford.  It  b  true  that  none 
but  a  very  depraved  man  would  suffer  another  to  be  drowned  when  he  might 
prevent  it  by  a  word.  But  if  we  punbh  such  a  man,  where  are  we  to  stop  ? 
How  much  exertion  are  we  to  require  ?   Is  a  person  to  be  a  murderer  if  he  does 


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SECT.  VI.]       MATNABD  V.  BOSTON  AND  MAINE  RAILROAD  147 

not  go  fifty  yards  through  the  sun  of  Bengal  at  noon  in  May  in  order  to  cau- 
tion a  traveller  against  a  swollen  river  ?  Is  he  to  be  a  murderer  if  he  does  not 
go  a  hundred  yards?  —  if  he  does  not  go  a  mile  ?  —  if  he  does  not  go  ten  ? 
What  is  the  precise  amount  of  trouble  and  inconvenience  which  he  is  to  en- 
dure ?  The  distinction  between  the  guide  who  is  bound  to  conduct  the  travel- 
ler as  safely  as  he  can,  and  a  mere  stranger,  is  a  clear  distinction.  But  the  dis- 
tinction between  a  stranger  who  will  not  give  a  halloo  to  save  a  man's  life,  and 
a  stranger  who  will  not  run  a  mile  to  save  a  man's  life,  is  very  far  from  being 
equally  clear. 

It  is,  indeed,  most  highly  desirable  that  men  should  not  merely  abstain 
from  doing  harm  to  their  neighbours,  but  should  render  active  services  to  their 
neighbours.  In  general,  however,  the  penal  law  must  content  itself  with  keep- 
ing men  from  doing  positive  harm,  and  must  leave  to  public  opinion,  and  to 
the  teachers  of  morality  and  religion,  the  office  of  fiu*nishing  men  with  motives 
for  doing  positive  good.  It  is  evident  that  to  attempt  to  punish  men  by  law 
for  not  rendering  to  others  all  the  service  which  it  is  their  duty  to  render  to 
others  would  be  preposterous.  We  must  grant  impunity  to  the  vast  majority 
of  those  omissions  which  a  benevolent  morality  would  pronounce  reprehen^ 
sible,  and  must  content  ourselves  with  punishing  such  omissions  only  when 
they  are  distinguished  from  the  rest  by  some  circumstance  which  marks  them 
out  as  peculiarly  fit  objects  of  penal  legislation.  Now,  no  circumstance  ap- 
pears to  us  so  well  fitted  to  be  the  mark  as  the  circumstance  which  we  have 
selected.  It  will  generally  be  found  in  the  most  atrocious  cases  of  omission; 
it  wiU  scarcely  ever  be  found  in  a  venial  case  of  omission;  and  it  is  more  clear 
and  certain  than  any  other  mark  that  has  occurred  to  us.  That  there  are 
objections  to  the  line  which  we  propose  to  draw,  we  have  admitted.  But  there 
are  objections  to  every  line  which  can  be  drawn,  and  some  line  must  be 
drawn. 


Section  VI 

LlABILITr  OF  OCCUPIEBS  OF  PbEMISBS 

MAYNARD  v.  BOSTON  AND  MAINE  RAILROAD 

Supreme  Jxtdicial  Court,  MassachusettBj,  September  4,  1874. 

Reported  in  115  MaasachusetU  Reports,  458. 

Tort  for  the  killing  of  a  horse  on  a  railroad  by  a  locomotive  engine. 

Upon  the  trial,  the  plaintiff  admitted  that  the  horse  must  be  con- 
sidered as  trespassing  upon  the  railroad,  but  contended  and  offered 
evidence  tending  to  show  that  by  an  exercise  of  proper  care  the  injury 
to  the  horse  might  have  been  avoided.  The  defendants  offered  evi- 
dence to  control  this,  and  tending  to  show  that  they  did  all  they  rea- 
sonably could  do  to  stop  their  train  before  striking  the  horse.  There 
was  no  evidence  of  any  wanton  misconduct  on  their  part. 

The  counsel  for  the  defendants  contended  and  asked  the  presiding 
judge  to  rule,  that  the  defendants  would  not  be  liable,  unless  the  plain- 


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148  MAYNARD  V.  BOSTON  AND  MAINE  RAILBOAD       [CHAP.  n. 

tiff  proved  a  reckless  and  wanton  misconduct  of  their  employees  in 
the  management  of  the  train  when  the  horse  was  killed.  The  presid- 
ing judge  declined  so  to  rule;  but  did  rule  that  though  the  horse  was 
trespassing  upon  the  defendants'  land  at  the  time,  the  managers  of  the 
train  could  not  carelessly  run  over  him,  but  were  bound  to  use  reason- 
able care  to  avoid  injuring  him,  and  that  if  the  jury  found  that  by  the 
exercise  of  reasonable  care  they  might  have  avoided  injuring  the 
horse,  they  \yould  be  liable.  The  jiuy  foimd  for  the  plaintiff,  and  the 
defendants  alleged  exceptions.^ 

Gray,  C.  J.  K  the  horse  had  been  rightfully  upon  the  defendants' 
land,  it  would  have  been  their  duty  to  exercise  reasonable  care  to  avoid 
injuring  the  horse.  But  it  being  admitted  by  the  plaintiff  that  his 
horse  was  trespassing  upon  the  railroad,  they  did  not  owe  him  that 
duty,  and  were  not  liable  to  him  for  anjrthing  short  of  a  reckless  and 
wanton  misconduct  of  those  employed  in  the  management  of  their 
train.  The  defendants  were  therefore  entitled  to  the  instruction  which 
they  requested.  Tonawanda  Railroad  v.  Hunger,  5  Denio,  255;  s.  c. 
4  Comst.  349;  Vandegrift  v.  Rediker,  2  Zab.  185;  Railroad  Co.  v. 
Skinner.  19  Penn.  St.  298;  Tower  v.  Providence  &  Worcester  Rail- 
road, 2  K.  1. 404;  Cincinnati,  Hamilton  &  Dajrton  Railroad  v.  Water- 
son,  4  Ohio  St.  424;  Louisville  &  Frankfort  Railroad  v.  Ballard,  2 
Met.  (Ky.)  177. 

The  instruction  given  to  the  jury  held  the  defendants  to  the  same 
obligation  to  the  plaintiff  as  if  his  horse  had  been  rightfully  on  their 
land;  and  made  their  paramoimt  duty  to  the  public  of  running  the 
train  with  proper  speed  and  safety,  and  their  use  of  the  land  set  apart 
and  fitted  for  the  performance  of  that  duty,  subordinate  to  the  care  of 
private  interests  in  property  which  was  upon  their  track  without 
right. 

Some  passages  in  the  opinion  in  Eames  v.  Salem  &  Lowell  Railroad, 
98  Mass.  560,  563,  were  relied  on  by  the  plaintiff's  coimsel  at  the  argu- 
ment, and  apparently  formed  the  basis  of  the  rulings  of  the  learned 
judge  in  the  Court  below.  But  in  that  case  there  was  no  evidence  of 
any  negligence  or  misconduct  in  the  management  of  the  train,  and  an 
exact  definition  of  the  defendants'  liability,  by  reason  of  such  negli- 
gence or  misconduct,  was  not  required.  In  the  present  case  such  a 
definition  was  requested  by  the  defendants  in  appropriate  terms,  and 
was  refused,  and  for  that  refusal  their 

Exceptions  must  he  sustained} 

1  Statement  abridged.    Arguments  of  counsel  omitted. 

«  Grand  Trunk  R.  Co.  v,  Bamett,  [191 1]  A.  C.  361 ;  Louisville  R.  Co.  v.  Womack, 
173  Fed.  752;  Chesapeake  R.  Co.  t;.  Hawkins.  174  Fed.  597;  Graysonia  Lumber 
Co.  V.  Carroll,  102  Ark.  460;  Chicago  Terminal  Co.  v.  Kotoski,  199  111.  383;  Neice 
V.  Chicago  R.  Co.,  254  111.  595;  Jordan  v.  Grand  Rapids  R.  Co.,  162  Ind.  464; 
Burgess  v,  Atchison  1^  Co.,  83  Kan.  497;  Land6  v.  Chicago  R.  Co.,  81  Minn.  279; 
Ingram-Day  Lumber  Co.  v.  Harvey,  98  Miss.  11;  Koegelt;.  Missouri  R.  Co.,  181 
Mo.  379;  Hoberg  v.  Collins,  80  N.  J.  Law,  425;  Gulf  R.  Co.  v.  Dees,  44  Okl.  118; 
Woodward  v.  Southern  R.  Co.,  90  S.  C.  262:  Norfolk  R.  Co.  v.  Wood,  99  Va.  166; 
Huff  V,  Chesapeake  R.  Co..  48  W.  Va.  45  Accord. 


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SECT.  VI.]  HERRICK  V.  WIXOM  149 

HERRICK  V.  WIXOM 

SuFBEME  Court,  Michioan,  September  27, 1899. 

Reported  in  121  Michigan  Reports,  384. 

Trespass  on  the  Case  for  personal  injuries. 

Defendant  was  the  possessor  and  manager  of  a  tent  show  or  circus. 
On  the  afternoon  of  an  exhibition  plaintiff  went  inside  the  tent  and 
took  a  seat.  There  was  a  conflict  of  testimony  as  to  whether  plain- 
tiff was  invited  into  the  tent  by  an  authorized  agent  of  defendant,  or 
whether  he  entered  without  any  invitation  or  other  justification.  A 
feature  of  the  entertainment  consisted  in  the  ignition  and  explosion 
of  a  giant  firecracker,  attached  to  a  pipe  set  in  an  upright  position  in 
one  of  the  show  rings.  Plaintiff  sat  thirty  or  forty  feet  from  the  place 
where  the  cracker  was  exploded.  At  the  explosion,  part  of  the  fire- 
cracker flew  and  struck  plaintiff  in  the  eye,  whereby  he  lost  the  sight 
of  his  eye. 

The  judge  left  to  the  jury  the  question  whether  it  was  negligent  in 
defendant  to  explode  this  firecracker  in  the  inside  of  the  tent  and  in 
the  presence  of  the  audience. 

Then  he  gave,  among  others,  the  following  instruction:  — 

"  Now  you  must  further  find,  in  order  that  the  plaintiff  recover, 
that  the  plaintiff  was  in  the  tent,  where  he  was  injured,  by  the  invi- 
tation of  some  person  having  authority  to  allow  him  to  go  in  there. 
If  he  was  a  mere  trespasser,  who  forced  his  way  in,  then  the  defend- 
ant owed  hJTn  no  duty  that  would  enable  him  to  recover  imder  the 
declaration  and  proofs  in  this  case."  .  .  . 

So  in  case  of  persons  wrongfully  npon  engines,  cars,  or  trains.  Chicago  R.  Co. 
V.  McDonou^,  112  HI.  App.  315;  Handley  v,  Missoiui  R.  Co.,  61  Kan.  237;  Planz 
V.  Boston  R.  Co.,  157  Mass.  377;  Bjomquist  v.  Boston  R.  Co.,  185  Mass.  130:  Fee- 
back  V.  Missouri  R.  Co..  167  Mo.  206;  Wickenburg  v.  Minneapolis  R.  Co.,  M 
Minn.  276  (boy  of  twelve) ;  Johnson  v.  New  York  R.  Co.,  173  N.  Y.  79;  Morgan  v. 
Oregon  R.  Co.,  27  Utah,  92.  But  see  Johnson  v.  Chicago  R.  Co.,  123  la.  224; 
Pierce  v.  North  Carolina  R.  Co.,  124  N.  C.  83.  As  to  who  is  a  trespasser  in  such  a 
place,  see  Yancey  v,  Boston  R.  Co.,  205  Mass.  162. 

"  A  wdlway  company  may  lawfully  require  a  wilful  trespasser  upon  one  of  its 
moving  trains  to  immediately  cease  his  unlawful  conduct,  by  such  means  as  not  to 
indicate  a  willingness  to  deprive  him  of  his  self-control  in  leaving  the  train,  the 
speed  of  the  train  not  being  so  ^at  that  a  personal  injury  to  him  should  be  ex- 
pected to  occur,  giving  due  consideration  to  the  duty  of  the  trespasser  to  cease  his 
lawlessness  by  aU  reasonable  means  in  his  power  and  reasonable  expectation  that 
he  will  use  such  means  in  attempting  to  do  it.  It  is  not  sufficient  to  indicate  an 
intentional  injury  that  the  party  causing  it  had  reasonable  ground  to  expect  that 
such  a  result  was  withiii  reasonable  probabilities,  otherwise  a  violation  of  the  duty 
to  exercise  ordinary  care  would,  of  itself,  be  sufficient  to  indicate  such  injury.  The 
danger  of  inflicting  a  personal  injury  upon  a  person  by  the  conduct  of  another  must 
be  such  as  to  reasonably  permit  of  a  belief  that  such  other  either  contemplated 
producing  it,  or,  being  conscious  of  the  danger  that  it  would  occur,  imposed  such 
danger  upon  that  person  in  utter  disregard  of  the  consequences,  to  warrant  sajring. 
reasonably,  that  the  circumstances  inoicate  willingness  to  perpetrate  such  injury. 
Marshall,  J.,  m  Bolin  v.  Chicago  R.  Co.,  108  Wis.  333,  351-352.  See  also  Hoberg 
V.  Collins,  80  N.  J.  Law,  425,  429.  But  compare  Palmer  v.  Gordon,  173  Mass.  410; 
Romana  v,  Boston  R.  Co.,  226  Mass.  533. 


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160  CINCINNATI  A  ZANESVILLE  R.  CO.  V.  SMITH        [CHAP.  II. 

Verdict  of  no  cause  of  action.  Judgment  for  defendant.  Plaintiflf 
brought  error.^ 

Montgomery,  J.  [After  stating  the  case.]  We  think  this  instruc- 
tion faulty,  in  so  far  as  it  was  intended  to  preclude  recovery  in  any 
event  if  the  plaintiflf  was  found  to  be  a  trespasser.  It  is  true  that  a 
trespasser  who  suflfers  an  injury  because  of  a  dangerous  condition  of 
premises  is  without  remedy.  But,  where  a  trespasser  is  discovered 
upon  the  premises  by  the  owner  or  occupant,  he  is  not  beyond  the 
pale  of  the  law,  and  any  negligence  resulting  in  injury  will  render  the 
person  guilty  of  negligence  liable  to  respond  in  damages.  Beach, 
Contrib.  Neg.  §  50;  Whart.  Neg.  §  346;  Marble  v.  Ross,  124  Mass. 
44;  Houston,  etc.,  R.  Co.  v.  Sympkins,  64  Tex.  615  (38  Am.  Rep. 
632);  Brown  v.  Lynn,  31  Pa.  St.  510  (72  Am.  Dec.  768);  Needham 
V.  Raikoad  Co.,  37  Cal.  409;  Davies  v.  Mann,  10  Mees.  &  W.  546; 
1  Shear.  &  R.  Neg.  §  99.  In  this  case  the  negligent  act  of  the  defend- 
ant's servant  was  conmiitted  after  the  audience  was  made  up.  The 
presence  of  plaintiflf  was  known,  and  the  danger  to  him  from  a  negli- 
gent act  was  also  known.  The  question  of  whether  a  dangerous  experi- 
ment should  be  attempted  in  his  presence,  or  whether  an  experiment 
should  be  conducted  with  due  care  and  r^urd  to  his  safety,  cannot  be 
made  to  depend  upon  whether  he  had  forced  himself  into  the  tent. 
Every  instinct  of  humanity  revolts  at  such  a  suggestion. 

For  this  error  the  judgment  will  be  reversed,  and  a  new  trial 
ordered.* 


CINCINNATI  &  ZANESVILLE  R.  CO.  v.  SMITH 

Supreme  Court,  Orao,  December  Term,  1871. 

Reported  in  22  Ohio  State  Reports,  227. 

Error  to  the  Court  of  Conunon  Pleas  of  Fayette  County,  reserved 
in  the  District  Court.* 

The  plaintiflf  below,  Richard  Smith,  sued  the  defendant  below,  the 
Cincinnati  &  Zanesville  Railroad  Company,  to  recover  the  value  of 

*  Statement  abridged.    Part  of  opinion  omitted. 

*  Rome  Furnace  Co.  v,  Patterson,  120  Ga.  521;  Fields  v.  Louisville  R.  Co.,  163 
Ky.  673  Accord.  See  also  Hector  Min.  Co.  v.  Robertson,  22  Col.  491;  Hobbs  v. 
Blanchard,  74  N.  H.  116:  Stuck  v.  Kanawha  R.  Co.,  76  W.  Va.  453;  Peaalee,  Duty 
to  Seen  Trespassers,  27  Harvard  Law  Rev.  403. 

As  to  duty  to  observed  child  trespasser,  see  Little  Rock  R.  Co.  v.  Barker,  39 
Ark.  491,  500:  Louisville  R.  Co.  v.  Lohges,  6  Ind.  App.  288;  Baltimore  R.  Co.  v, 
Welch,  114  Md.  536.  To  observed  helpless  trespasser,  see  Tanner  v.  Louisville 
R.  Co.,  60  Ala.  621;  Pannell  v,  Nashville  R.  Co.,  97  Ala.  298;  Martin  v,  Chicago 
R.  Co.,  194  ni.  138;  Krenzer  v.  Pittsburgh  R.  Co.,  151  Ind.  587;  Glenn  v.  Louis- 
ville R.  Co.,  28  Ky.  Law  Rep.  949.  To  trespasser  observed  in  a  dangerous  posi- 
tion, see  Haley  v.  Kansas  City  R.  Co.,  113  Ala.  640;  Atkinson  v,  Kelley,  8  Ala. 
App.  571;  St.  Louis  R.  Co.  v.  Townsend,  69  Ark.  380,  383;  Chicago  R.  Co.  v. 
K^toski,  199  ni.  383;  Richardson  v.  Missouri  R.  Co.,  90  Kan.  292;  Whitehead  v. 
St.  Louis  R.  Co.,  99  Mo.  263;  Mathews  v,  Chicago  R.  Co.,  63  Mo.  App.  569; 
Omaha  R.  Co.  v.  Cook,  42  Neb.  577. 

»  Statement  rewritten;  part  of  case  omitted;  argument  omitted. 


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SECrr.  VI.]        CINCINNATI  dc  ZANBSVILLE  R.  CO.  V.  SMITH  151 

two  horses  alleged  to  have  been  killed  through  the  negligence  of  the 
servants  of  the  defendant  in  operating  one  of  its  trains.  The  inclosure 
of  the  plaintiff  adjoined  the  railroad  of  the  defendant;  and  from  this 
inclosure,  on  the  night  on  which  the  horses  were  killed,  they  escaped 
on  to  the  railroad. 

The  Court,  among  other  things,  charged  the  jury  as  follows:  — 

The  defendant's  servants  in  this  case  were  not  bound  to  use  extraor- 
dinary care  or  extraordinary  means  to  save  the  plaintiff's  horses. 
But  they  were  bound  to  use  what,  in  that  peculiar  business,  is  ordi- 
nary care  and  diligence;  and  if  the  loss  of  the  horses  was  the  result 
of  a  want  of  that  ordinary  care  and  diligence,  the  defendant  is 
liable. 

The  defendant  had  the  right  to  the  free  and  unobstructed  use  of  its 
railroad  track.  And  the  paramount  duty  of  the  emplojrees  is  the  pro- 
tection of  the  passengers  and  property  in  the  train,  and  the  train 
itself. 

But  this  being  their  paramount  duty,  they  are  bound  to  use  ordi- 
nary care  and  diligence,  so  as  not  unnecessarily  to  injure  the  property 
of  others. 

Under  the  circumstances  of  the  case,  could  and  would  reasonably 
prudent  men,  skilled  in  that  kind  of  business,  keeping  in  view  as  their 
paramoimt  duty  the  protection  and  safety  of  the  train,  its  passengers, 
and  the  property  on  and  about  it  intrusted  to  their  care,  in  the  exer- 
cise of  ordinary  care  have  stopped  the  train  and  saved  the  horses  ? 
If  so,  and  the  defendant's  servants  did  not  so  act,  the  defendant  is 
liable  in  this  case;  otherwise  the  defendant  is  not  liable. 

In  considering  the  paramount  duty  of  the  employees  in  the  proper 
management  of  the  train  for  the  safety  of  passengers  and  property  of 
its  train,  you  have  a  right  to  determine  whether  they  have  other  duties 
to  perform.  It  is  claimed  the  engineer  had  other  duties  than  watching 
the  track  to  perform,  which  were  necessary  for  the  safety  of  the  pas- 
sengers and  property  of  the  train,  —  such  as  gauging  his  steam,  watch- 
ing time-table,  regulating  his  supply  of  water,  examining  his  ma- 
chinery, watching  for  the  station-signal,  etc.  If  such  were  the  case, 
he  had  a  lawful  right  to  perform  these  duties,  and  was  not  boimd  to 
neglect  them  to  save  the  plaintiff's  horses,  nor  bound  to  watch  the 
track  while  performing  these  duties.  They  were  only  bound,  imder 
the  circumstances  of  the  case,  to  use  ordinary  care  and  diligence  to 
save  the  horses,  —  the  safety  of  the  passengers  and  property  of  the 
train  being  their  paramount  duty;  and  if  the  jury  find  from  the  evi- 
dence that  the  persons  in  charge  of  the  engine  were  attending  to  the 
duties  of  the  train  approaching  the  station  at  the  time  of  the  accident, 
these  duties  were  paramount  to  watching  the  track  for  trespassing 
animals;  and  if  the  horses  were  not,  on  that  account,  discovered  in 
time  to  save  them  by  using  ordinary  means  to  stop  the  train,  the 
defendant  is  not  Uable. 


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152  CINCINNATI  dc  ZANESVILLE  R.  CO.  t;.  SMITH        [CHAP.  II. 

It  is  claimed  by  the  defendant's  counsel  that  off  the  crossings  of  the 
raihoad  the  servants  of  the  railroad  company  have  a  right  to  presume 
that  there  are  no  trespassers  on  the  roadway;  that  they  are  not  bound 
to  look  out  for  trespassers  except  for  the  safety  of  passengers  or  prop- 
erty in  charge.  It  is  also  claimed  that  inasmuch  as  the  road  at  the 
place  where  the  plaintiff's  horses  got  on  the  track  and  were  killed  was 
fenced,  on  that  account  the  defendant's  servants  in  charge  of  the 
train  were  not  bound  to  look  out  for  trespassing  stock.  Upon  this 
question  I  only  can  charge  you  this:  That  if  the  raihoad  was  fenced 
at  the  place  where  the  horses  got  on  and  were  killed,  and  this  was 
known  to  the  defendant's  employees,  you  have  a  right  to  look  to  that 
circumstance  as  reflecting  upon  and  in  determining  whether  the  em- 
ployees exercised  ordinary  care  in  the  management  of  the  train.  But 
if  they  might,  in  the  exercise  of  ordinary  care,  have  discovered  the 
animals,  although  they  were  trespassers  on  the  roadway,  other  than 
at  a  crossing,  in  time  to  have  prevented  their  destruction,  it  was  their 
duty  to  do  so;  and  if  from  such  want  of  ordinary  care  they  were  not 
discovered  in  time  to  prevent  their  destruction, .  the  defendant  is 
liable  for  their  loss  to  the  plaintiff.^ 

White,  J.  The  whole  charge  is  set  out  in  the  bill  of  exceptions. 
Considering  its  several  parts  in  connection,  and  giving  to  the  whole 
a  fair  construction,  we^leem  it  necessary  only  to  notice  two  particulars 
in  which  it  is  objected  to. 

These  are:  1.  Whether  the  fact  that  the  horses  were  trespassing  on 
the  track  excused  the  servants  of  the  defendant  from  the  exercise  of 
ordinary  care;  and,  2.  Whether  that  fact,  and  the  additional  one 
that  the  road  was  fenced,  excused  the  engineer,  as  respects  the  owner 
of  stray  animals,  from  looking  ahead  to  see  whether  such  animals  were 
on  the  track  or  not. 

In  regard  to  the  first  of  these  particulars,  it  is  contended  on  be- 
half of  the  railroad  company  that,  as  the  horses  were  trespassing 
on  the  railroad,  the  company  was  exempt  from  using  ordinary  care 
to  save  them,  and  that  it  was  only  liable  for  what  is  called  gross 
negligence. 

The  Court  instructed  the  jury  that  the  defendant  had  the  right  to 
the  free  and  unobstructed  use  of  its  railroad  track,  and  that  the  para- 
mount duty  of  its  employees  was  the  protection  of  the  passengers 
and  property  in  the  train,  and  the  train  itself.  But  this  being  their 
paramoimt  duty,  they  were  bound  to  use  ordinary  care  and  diligence 
so  as  not  unnecessarily  to  injure  the  property  of  others. 

We  think  the  charge  stated  the  law  correctly.  We  see  no  good  rea- 
son, in  principle,  why  a  party,  so  far  as  may  be  consistent  with  the  full 
enjoyment  of  his  own  rights,  ought  not  to  use  ordinary  care  so  as  not 
unnecessarily  to  injure  the  property  of  others. 

^  The  above  portions  of  the  instructions  are  set  out  in  the  argument  of  counsel, 
pp.  235-237. 


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SECT.  VI.]       CINCINNATI   &  ZANESVILLE  R.  CO.  V.  SMITH  153 

It  is  true,  the  rule  contended  for  by  the  counsel  of  the  plaintiff  in 
error  is  sustained  by  a  number  of  authorities.  But  the  later  and 
better  considered  cases  are  to  the  contrary.  Illinois  Central  R.  R.  Co. 
V.  Middlesworth,  46  111.  494;  Bemis  v.  Conn.,  &c.  R.  R.,  42  Vt.  375; 
Isbell  V.  N.  Y.  R.  R.  Co.,  27  Conn.  393;  Redfield's  American  Railway 
Cases,  355,  356. 

The  rule  contended  for  has  never  been  adopted  in  this  State.  It 
is,  moreover,  as  respects  railroad  companies,  inconsistent  with  our 
statute  law  on  the  subject.    S.  &  C.  331. 

The  facts  in  the  case  of  the  C.  H.  &  D.  R.  R.  Co.  v,  Waterson  & 
Kirk,  4  Ohio  St.  424,  cited  and  relied  upon  by  the  counsel  of  the  plain- 
tiff in  error,  were  diiOferent  from  those  in  the  case  now  before  us,  and 
we  do  not  regard  the  rule  there  laid  down  as  to  the  Uability  of  the 
company  in  that  case  as  applicable  to  this. 

From  what  has  been  said  of  the  charge  in  the  first  particular  named, 
it  would  seem  to  follow  that  it  is  xmobjectionable  as  respects  the 
second.  If  it  was  the  duty  of  the  servants  of  the  company,  so  far  as 
was  consistent  with  their  other  and  paramoimt  duties,  to  use  ordi- 
nary care  to  avoid  injuring  animals  on  the  track,  they  were,  of  course, 
boimd  to  adopt  the  ordinary  precautions  to  discover  danger,  as  well 
as  to  avoid  its  consequences  after  it  became  known. 

The  fact  that  the  road  was  fenced  at  the  place  of  collision  with  the 
horses,  was  a  circumstance  to  be  considered  in  connection  with  the 
other  circumstances  of  the  case  in  determining  whether  the  engineer 
was  guilty  of  negUgence  in  not  looking  ahead  and  discovering  the 
danger  in  time  to  avoid  it.  The  fact  that  the  road  was  fenced  ren- 
dered it  less  probable  that  wandering  animals  would  be  on  the  track; 
but  it  cannot  be  said  that  the  engineer,  as  a  matter  of  law,  by  reason 
of  the  fences,  was  wholly  excused  from  keeping  a  lookout  ahead  of  the 
train. 

If  the  servants  of  the  company  in  charge  of  the  train,  having  due 
regard  to  their  duties  for  the  safety  of  the  persons  and  property  in 
their  charge,  could,  by  the  exercise  of  ordinary  care,  have  seen  and 
saved  the  horses,  we  think  they  were  bound  to  have  done  so.  Bemis 
V.  Conn.,  &c.  R.  R.,  supra,  381;  Louis.  &  Nash.  R.  R.  Co.  v.  Wain- 
scott,  3  Bush,  149.*  Judgment  affirmed. 

>  Schmidt  v,  Michimn  Coal  Co^  169  Mich.  308;  Myers  v.  Boston  R.  Co.,  72 
N.  H.  176:  Carney  v.  Concord  St.  R.  Co.,  72  N.  H.  364:  Brown  v.  Boston  R.  Co., 
73  N.  H.  568;  Magar  v,  Hammond,  171  N.  Y.  377;  O^Leary  v.  Brooks  Elevator 
Co..  7  N.  D.  668  Accord.  See  also  Houston  R.  Co.  v.  Garrett,  (Tex.  Civ.  App.)  160 
S.  W.  111. 

As  to  the  effect  of  a  statute  prohibiting  the  particular  trespass,  see  Marra  v. 
New  York  R.  Co.,  139  App.  Div.  707. 

As  to  when  a  horse  is  trespassing,  see  Taft  v.  New  York  R.  Co.,  167  Mass.  297. 


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154  SHEEHAN  V,  ST.  PAUL  A  DULUTH  R.  CO.  [CHAP.  II. 

SHEEHAN  V.  ST.  PAUL  &  DULUTH  R.  CO. 

United  States  Circuit  Court  op  Appeals,  Seventh  Circuit, 

October  16, 1896. 

Reported  in  46  U.  S.  Appealer  498. 

Seaman,  J.^  The  plaintiff  at  the  time  of  his  injury  was  neither  in 
the  relation  of  passenger  nor  of  one  in  a  public  crossing  or  place  in 
which  the  pubUc  were  licensed  to  travel,  but  upon  the  undisputed  facts 
was  a  mere  intruder  on  the  tracks  of  the  defendant,  technically  a  tres- 
passer; and  this  record  excludes  any  of  the  elements  of  unplied  license 
or  invitation  to  such  use  which  have  given  rise  to  much  discussion  and 
diversity  of  views  in  the  courts.  Therefore  the  inquiry  is  here  squarely 
presented.  What  is  the  duty  which  a  railway  company  owes  to  a  tres- 
passer on  its  tracks,  and  how  and  when  does  the  duty  arise  ?  The 
decisions  upon  this  subject  uniformly  recognize  that  the  trespasser 
cannot  be  treated  as  an  outlaw;  and  at  the  least  that,  if  wantonly 
injured  in  the  operation  of  the  railroad,  the  company  is  answerable  in 
damages.  Clearly,  then,  an  obligation  is  placed  upon  the  company 
to  exercise  some  degree  of  care  when  the  danger  becomes  apparent. 
Is  it,  however,  bound  to  foresee  or  assume  that  rational  beings  will 
thus  enter  as  trespassers  in  a  place  of  danger,  and  to  exercise  in  the 
running  of  its  trains  the  constant  vigilance  in  view  of  that  probability 
which  is  imposed  for  public  crossings  ?  There  are  cases  which  would 
seem  to  hold  this  strict  requirement  (see  note,  1  Thompson  on  Negli- 
gence (1880),  448;  East  Tennessee  and  Georgia  Railroad  Co.  v. 
St.  John,  6  Sneed,  524) ;  but  by  the  great  preponderance  of  authority, 
in  this  coimtry  and  in  England,  the  more  reasonable  doctrine  is  pro- 
noimced,  in  effect,  as  follows:  That  the  railroad  company  has  the 
right  to  a  free  track  in  such  places;  that  it  is  not  bound  to  any  act  or 
service  in  anticipation  of  trespassers  thereon;  and  that  the  trespasser 
who  ventures  to  enter  upon  a  track  for  any  purpose  of  his  own  assumes 
all  risks  of  the  conditions  which  may  be  found  there,  including  the 
operation  of  engines  and  cars.  Wright  v,  Boston  and  Maine  Railroad, 
129  Mass.  440;  Philadelphia  and  Reading  Railroad  Company  v. 
Hummell,  44  Penn.  St.  375.  The  decision  by  this  court,  in  Cleveland, 
Cincinnati,  Chicago  and  St.  Louis  Railway  Company  v.  Philips' 
Administrator  (1),  24  U.  S.  Appeals,  489,  adopts  the  view  held  in  this 
line  of  cases,  citing  the  authorities  of  which  repetition  here  is  imneces- 
sary.  The  same  doctrine  prevails  in  Minnesota,  where  the  injury  in 
question  arose.  Johnson  v.  Truesdale,  46  Minnesota,  345;  Studley 
V.  St.  Paul  &  Duluth  R.  Co.,  48  Minnesota,  249.  In  the  latter  case  it 
was  held  that  there  could  be  no  recovery  "  unless  the  engineer  saw  the 
girl  in  time  to  avoid  the  accident,  and  then  was  guilty  of  such  gross 
negligence  in  not  trying  to  avoid  it  as  to  evince  a  reckless  disregard  of 

^  The  statement  and  part  of  the  opinion  are  omitted. 


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SECT.  VI.]  SHEEHAN  V.  ST.  PAUL  A  DULUTH  R.  CO.  155 

human  Ufe;  "  and  the  opinion  gives  this  further  exposition  of  the  rule: 
''  The  defendant's  engineer  was  under  no  obligation  to  anticipate  a 
trespasser,  or  to  look  out  for  persons  walking  upon  the  track;  but, 
upon  discovering  plaintiff's  intestate  across  the  cattle-guard,  as  he 
claims  she  was  when  he  noticed  that  she  was  in  danger,  it  became  the 
engineer's  duty  to  use  proper  care  to  avoid  running  her  down.  If  he 
failed  to  exercise  proper  care,  he  would  necessarily  be  grossly  negligent 
and  evince  a  reckless  disregard  of  human  life."  So  in  Wisconsin,  in 
Anderson  v.  Chicago,  St.  Paul,  Minneapolis  &  Omaha  Railway  Com- 
pany, 87  Wisconsin,  195,  204,  it  is  said:  "  The  use  of  a  railroad  is  ex- 
clusively for  its  owners  or  those  acting  under  its  authority,  and  the 
company  is  not  boimd  to  the  exercise  of  any  active  duty  of  care  or 
diligence  towards  mere  trespassers  upon  its  track,  to  keep  a  lookout  to 
discover  or  protect  them  from  injury,  except  that,  when  discovered  in 
a  position  of  danger  or  peril,  it  is  its  duty  to  use  all  reasonable  and 
proper  effort  to  save  and  protect  them  from  the  probable  consequences 
of  their  indiscretion  or  negligence." 

The  well-established  and  just  rule  which  holds  the  railroad  com- 
pany to  the  exercise  of  constant  and  strict  care  against  injury  through 
its  means  is  applicable  only  to  the  relation  on  which  it  is  founded,  of 
an  existing  duty  or  obligation.  This  active  or  positive  duty  arises  in 
favor  of  the  public  at  a  street  crossing  or  other  place  at  which  it  is 
presmnable  that  persons  or  teams  may  be  met.  It  is  not  material,  so 
far  as  concerns  this  inquiry,  whether  the  place  is  one  for  which  a  law- 
ful right  of  passage  exists,  as  it  is  the  fact  of  notice  to  the  company 
arising  out  of  its  existence  and  the  probability  of  its  use  which  im- 
poses the  positive  duty  to  exercise  care;  the  requirement  of  an  ex- 
treme d^ree  of  care  being  superadded  because  of  the  hazards  which 
attend  the  operations  of  the  company.  The  case  of  a  trespasser  on 
the  track  in  a  place  not  open  to  travel  is  clearly  distinguishable  in  the 
absence  of  this  notice  to  the  company.  There  is  no  constructive 
notice  upon  which  to  base  the  obligation  of  constant  lookout  for  his 
presence  there,  and  no  actual  notice  up  to  the  moment  the  trainmen 
have  discovered  the  fact  of  his  peril.  As  that  peril  comes  wholly  from 
his  xmauthorized  act  and  temerity,  the  risk  and  all  positive  duty  of 
care  for  his  safety  rest  with  the  trespasser.  The  obligation  of  the 
company  and  its  operatives  is  not  then  preexisting,  but  arises  at  the 
moment  of  discovery,  and  is  negative  in  its  nature,  —  a  duty  which 
is  common  to  hiunan  conduct  to  make  all  reasonable  effort  to  avert 
injury  to  others  from  means  which  can  be  controlled. 

This  is  the  issue  presented  here.  It  excludes  all  inquiry  respecting 
the  character  of  the  roadbed,  cattle-guard,  locomotive,  brake  appli- 
ances or  other  means  of  operation,  or  of  the  speed  or  manner  of  run- 
ning the  train  up  to  the  moment  of  notice,  because  no  breach  of 
positive  duty  is  involved.  It  is  confined  to  the  evidence  relating  to 
the  discovery  by  the  engineer  and  fireman  of  the  plaintiff's  peril  and 


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156  AKBRS  V.  CHICAGO,   AC.  R.  CO.  [CHAP.  II. 

to  the  efforts  then  made  to  avert  the  injury;  and  out  of  that  to  ascer- 
tain whether,  in  any  view  which  may  justly  be  taken,  it  is  shown  that 
these  men  or  the  engineer  in  disregard  of  the  duty  which  then  con- 
fronted them  neglected  to  employ  with  reasonable  promptness  the 
means  at  hand  for  stopping  the  train.^ 


Brett,  M.  R.,  m  HEAVEN  v.  PENDER 

(1883)  11  Queen's  Bench  Dwision,  603,  506,  607. 

Brett,  M.  R.  .  .  .  The  action  is  in  form  and  substance  an  action 
for  negligence.  That  the  stage  was,  through  want  of  attention  of  the 
defendant's  servants,  suppUed  in  a  state  unsafe  for  use  is  not  denied. 
But  want  of  attention  amoimting  to  a  want  of  ordinary  care  is  not  a 
good  cause  of  action,  although  injury  ensue  from  such  want,  unless 
the  person  charged  with  such  want  of  ordinary  care  had  a  duty  to  the 
person  complaining  to  use  ordinary  care  in  respect  of  the  matter  called 
in  question.  Actionable  negligence  consists  in  the  neglect  of  the  use 
of  ordinary  care  or  skill  towards  a  person  to  whom  the  defendant 
owes  the  duty  of  observing  ordinary  care  and  skill,  by  which  neglect 
the  plaintiff,  without  contributory  negligence  on  his  part,  has  suffered 
injury  to  his  person  or  property.  The  question  in  thk  case  is  whether 
the  defendant  owed  such  a  duty  to  the  plaintiff. 


MrrcHELL,  J.,  IN  AKERS  v.  CHICAGO,  &c.  R.  CO. 

(1894)  58  Minnesota,  540,  644. 

MrrcHELL,  J.  Actionable  negligence  is  the  failure  to  discharge  a 
legal  duty  to  the  person  injured.  If  there  is  no  duty,  there  is  no  negli- 
gence. Even  if  a  defendant  owes  a  duty  to  some  one  else,  but  does  not 
owe  it  to  the  person  injured,  no  action  will  Ue.    The  duty  must  be  due 

1  That  in  general  there  is  no  duty  to  look  out  for  trespassers  on  the  track  or 
right  of  way,  see  also  Cleveland  R.  (Jo.  v,  Tartt,  99  Fed.  369;  Louisville  R.  Co.  t;. 
Jones,  191  Ala.  484;  CJoudreau  v,  Connecticut  Co.,  84  Conn.  406;  Atlantic  R.  Co. 
V.  McDonald,  135  Ga.  635;  Curd  v.  Cincinnati  R.  Co.,  163  Ky.  104;  Baltimore  R. 
Co.  V.  State,  114  Md.  636;  Petur  v.  Erie  R.  Co.,  151  App.  Div.  578;  Carter  v.  Erie 
R.  Co.,  33  Ohio  Cir.  Ct.  Rep.  377;  Laeve  v.  Missouri  R.  Co.,  (Tex.  Civ.  App.)  136 
S.  W.  1129. 

Jeffries  v.  Seaboard  R.  Co.,  129  N.  C.  236  contra.  See  also  Ark.  Kirby^s  Dig. 
§  6607;  Tenn.  Shannon's  Code,  §  1574  (4). 

As  to  duty  of  trainmen  in  a  place  where  there  is  a  known  likelihood  of  tres- 
passers, see  Southern  R.  Co.  v.  Di)novan,  84  Ala.  141 ;  BuUard  v.  Southern  R.  Co., 
116  Ga.  644;  Cincinnati  R.  Co.  v.  Blankenship,  157  Ky.  699;  Risbridger  v.  Michi- 
gan R.  Co.,  188  Mich.  672;  Fearons  v.  Kansas  City  R.  Co^  180  Mo.  208:  Eppstein 
V.  Missouri  R.  Co.,  197  Mo.  720;  Krunmiack  v.  Missouri  R.  Co.,  98  Neb.  773;  St. 
Louis  R.  Co.  V,  Hod^,  (Okl.)  157  Pac.  60:  Whelan  t>.  Baltimore  R.  Co.,  70  W. 
Va.  442;  Whalen  v.  Chicago  R.  Co.,  75  Wis.  654.  Contra:  Baltimore  R.  Co.  v. 
Welch,  114  Md.  536;  Boden  v.  Boston  R.  Co.,  205  Mass.  504;  Haltiwanger  v. 
Columbia  R.  Co.,  64  S.  C.  7.    Compare  Lowery  v.  Walker,  [1911]  A.  C.  10. 

The  trainmen  may  assume  that  an  adult  trespasser,  not  in  obvious  peril,  will 
look  out  for  himself.    Indianapolis  R.  Co.  v.  McClaren,  62  Ind.  566;  Campbell  v. 


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SECT.  VI.]  LARY  V.  CLEVELAND  R.  CO.  157 

to  the  person  injured.  These  principles  are  elementary,  and  are 
equally  applicable,  whether  the  duty  is  imposed  by  positive  statute 
or  is  founded  on  general  conunon-law  principles.^ 


LARY  V.  CLEVELAND  R.  CO. 

Supreme  Court,  Indiana,  Noveioer  Term,  1881. 

Reported  in  78  Indiana  ReporU,  323. 

Lart  sued  the  railroad  company  for  damage  alleged  to  have  been 
sustained  by  him,  through  the  negligent  failure  of  the  company  to 
repair  a  building  standing  on  its  grounds,  and  formerly  used  by  it  as 
a  freight  house.  Answer,  a  general  denial.  Upon  the  trial,  the  plain- 
tiff introduced  his  evidence;  the  defendant  demurred  to  it,  and  the 
plaintiflf  joined  in  demurrer.  The  Court  sustained  the  demurrer,  and 
the  plaintiflf  excepted. 

liie  facts  which  the  plaintiflf's  evidence  tended  to  prove  are  sub- 
stantially as  follows:  — 

The  railroad  company  owned  half  an  acre  of  land  between  the  rail- 
road track  and  a  highway.  On  this  land  was  a  building  erected  sev- 
eral years  before  for  a  freight  house.  It  was  no  longer  used  as  the 
general  freight  house,  though  still  used  for  storing  the  company's 
wood.  A  part  of  the  roof  of  the  building  was  off,  and  had  been  so  for 
some  months.  The  plaintiff,  who  was  twenty  years  of  age,  was  in  the 
habit  of  passing  the  building  almost  daily,  and  had  noticed  that  part 
of  the  roof  was  off.  In  a  rain  storm,  the  plaintiff  went  under  the  plat- 
form of  the  old  freight  house,  and  played  there  with  other  young 
people.  A  piece  of  the  roof  was  torn  off  by  the  wind.  The  plaintiff, 
being  frightened  at  the  noise,  ran  out,  saw  the  piece  of  the  roof  in  the 
air,  and  ran  towards  the  highway;  but  before  or  as  he  reached  the 
edge  of  it,  this  fragment  of  the  roof  fell  upon  him.* 

Morris,  C.  [After  stating  the  case.]  Upon  the  facts  thus  stated, 
can  the  appellant  maintain  this  action  ? 

There  is  no  testimony  tending  to  show  that  the  appellant  was  at  the 
freight  house  by  the  invitation  of  the  appellee,  nor  that  he  was  there 
for  the  purpose  of  transacting  any  business  with  the  appellee.  The  ap- 
pellant intruded  upon  the  premises  of  the  appellee,  and  is  not,  there- 
fore, entitled  to  that  protection  which  one,  expressly  or  by  implication, 
invited  into  the  house  or  place  of  business  of  another,  is  entitled  to. 
The  appellant  was  a  trespasser,  and  as  such  he  entered  upon  the  appel- 
lee's premises,  taking  the  risks  of  all  the  mere  omissions  of  the 

Kansas  City  R.  Co.,  55  Kan.  536:  St.  Louis  R.  Co.  v.  Herrin,  6  Tex.  Civ.  App.  718. 
As  to  a  child,  see  Pennsylvania  K.  Co.  v.  Morgan,  82  Pa.  St.  134. 

^  **  The  duty  must  be  one  owed  by  the  defendants  to  the  plaintifFs  in  respect  to 
the  very  matter  or  act  charged  as  negligence."  —  Parsons,  C.  J.,  in  Pitt^eld 
C.  M.  Co.  V.  Pittefield  Shoe  Co.,  71  N.  H.  622,  631. 

*  Statement  abridged. 


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158  LARY  V.  CLEVELAND  R.  CO.  [CHAP.  II. 

appellee  as  to  the  condition  of  the  grounds  and  buildings  thus  invaded 
without  leave.  We  do  not  wish  to  be  understood  as  holding  or  im- 
plying that  if,  on  the  part  of  the  appellee,  there  had  been  any  act  done 
implying  a  willingness  to  inflict  the  injury  upon  the  appellant,  it  would 
not  be  liable.  But  we  think  there  is  nothing  in  the  evidence  from 
which  such  an  inference  can  be  reasonably  drawn.  The  building 
could  be  seen  by  all;  its  condition  was  open  to  the  inspection  of  every 
one;  it  had  been  abandoned  as  a  place  for  the  transaction  of  public 
business;  it  was  in  a  state  of  palpable  and  visible  decay,  and  no  one 
was  authorized,  impUedly  or  otherwise,  to  go  into  or  imder  it.  Under 
such  circmnstances,  the  law  say^  to  him  who  intrudes  into  such  a 
place,  that  he  must  proceed  at  his  own  risk. 

In  the  case  of  The  Pittsburgh,  &c.  R.  W.  Co.  v.  Bingham,  29  Ohio 
St.  364,  the  question  was:  "  Is  a  railroad  company  bound  to  exercise 
ordinary  care  and  skill  in  the  erection,  structure,  or  maintenance  of 
its  station  house  or  houses,  as  to  persons  who  enter  or  are  at  the  same, 
not  on  any  business  with  the  company  or  its  agents,  nor  on  any  busi- 
ness connected  with  the  operation  of  its  road;  but  are  there  without 
objection  by  the  company,  and  therefore  by  its  mere  sufferance  or 
permission  ?  ''    The  Court  answered  this  question  in  the  negative. 

In  the  case  of  Hounsell  v.  Smyth,  7  C.  B.  n.  s.  731,  the  plaintiff 
fell  into  a  quarry,  left  open  and  imguarded  on  the  imenclosed  lands 
of  the  defendant,  over  which  the  pubUc  were  permitted  to  travel;  it 
was  held  that  the  owner  was  under  no  legal  obligation  to  fence  or 
guard  the  excavation  imless  it  was  so  near  the  public  road  as  to  render 
travel  thereon  dangerous.  That  the  person  so  travelling  over  such 
waste  lands  must  take  the  permission  with  its  concomitant  conditions, 
and,  it  may  be,  perils.  Hardcastle  v.  The  South  Yorkshire  R.  W.  Co., 
4  H.  &  N.  67;  Sweeny  v.  Old  Colony,  &c.  R.  R.  Co.,  10  Allen,  368; 
Knight  V.  Abert,  6  Barr,  472. 

After  reviewing  the  above  and  other  cases.  Judge  Boynton,  in  the 
case  of  The  Pittsburgh,  &c.  R.  W.  Co.  v.  Bingham,  supra,  says:  — 

"  The  principle  imderlying  the  cases  above  cited  recognizes  the  right 
of  the  owner  of  real  property  to  the  exclusive  use  and  enjoyment  of 
the  same  without  Uability  to  others  for  injuries  occasioned  by  its  un- 
safe condition,  where  the  person  receiving  the  injury  was  not  in  or  near 
the  place  of  danger  by  lawful  right;  and  where  such  owner  assumed 
no  responsibihty  for  his  safety  by  inviting  him  there,  without  giving 
him  notice  of  the  existence  or  inmiinence  of  the  peril  to  be  avoided." 

In  the  case  from  which  we  have  quoted,  the  intestate  of  the  plain- 
tiff was  at  the  defendant's  station  house,  not  on  any  business  with  it, 
but  merely  to  pass  away  his  time,  when,  by  a  severe  and  sudden  blast 
of  wind,  a  portion  of  the  roof  of  the  station  house  was  blown  off  the 
building  and  against  the  intestate,  with  such  force  as  to  kill  him.  The 
case,  in  its  circmnstances,  was  not  imlike  the  one  before  us.  Nichol- 
son V.  Erie  R.  W.  Co.,  41  N.  Y.  626;  Murray  v.  McLean,  57  111.  378; 
Durham  v.  Musselman,  2  Blackf.  96  (18  Am.  Dec.  133). 


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SECT.  VI.]  LARY  V.  CLEVELAND  R.  CO.  159 

In  the  case  of  Sweeny  v.  Old  Colony,  &c.  R.  R.  Co.,  10  Allen,  368, 
the  Court  say:  — 

"  A  Ucensee,  who  enters  on  premises  by  permission  only,  without 
any  enticement,  allurement,  or  inducement  being  held  out  to  him  by 
the  owner  or  occupant,  cannot  recover  damages  for  injuries  caused  by 
obstructions  or  pitfalls.  He  goes  there  at  his  own  risk,  and  enjoys  the 
Ucense  subject  to  its  concomitant  perils."  Carleton  v.  Franconia  Iron 
and  Steel  Co.,  99  Mass.  216;  Harris  v.  Stevens,  31  Vt.  79,  90;  Wood  v, 
Leadbitter,  13  M.  &  W.  838. 

The  evidence  in  this  case  brings  it,  we  think,  within  the  principles 
settled  by  the  above  cases. 

The  appellant  contends  that  the  evidence  shows  that  the  appellee 
was  guilty  of  gross  negligence  in  not  repairing  its  freight  house,  and 
that  such  negligence  renders  it  liable,  though  he  entered  upon  its 
pranises  without  invitation  or  Ucense,  as  a  mere  intruder,  and  was, 
while  such  intruder,  injured;  and,  in  support  of  this  proposition,  we 
are  referred  to  the  following  cases:  Lafayette,  &c.  R.  R.  Co.  v.  Adams, 
26  Ind.  76;  Indianapolis,  &c.  R.  R.  Co.  v.  McClure,  26  Ind.  370;  Gray 
V.  Harris,  107  Mass.  492;  Isabel  v.  Hannibal,  &c.  R.  R.  Co.,  60  Mo. 
475. 

In  the  first  of  the  above  cases,  the  Court  held  that,  where  the  negli- 
gence of  the  company  was  so  gross  as  to  imply  a  disregard  of  conse- 
quences or  a  willingness  to  inflict  the  injury,  it  was  Uable,  though  the 
party  injured  was  not  free  from  fault.  In  the  second  case,  it  was  held 
that  a  railroad  company,  not  required  to  fence  its  road,  would  not  be 
Uable  for  animals  kiUed  on  its  r(md,  imless  guilty  of  gross  negUgence. 
The  phrase  "  gross  negUgence,"  as  used  in  these  cases,  means  some- 
thing more  than  the  mere  omission  of  duty;  it  meant,  as  shown  by  the 
evidence  in  the  cases,  reckless  and  aggressive  conduct  on  the  part  of 
the  company's  servants.  "  Something  more  than  negUgence,  how- 
ever gross,  must  be  shown,  to  enable  a  party  to  recover  for  an  injury, 
when  he  has  been  guilty  of  contributory  negUgence."  The  Pennsyl- 
vania Co.  V.  Sinclair,  62  Ind.  301.  There  was,  in  the  cases  referred  to 
in  26  Ind.,  something  more  than  negligence.  As  in  the  case  of  The 
Indianapolis,  &c.  R.  W.  Co.  v.  McBrown,  46  Ind.  229,  where  the 
animal  was  driven  through  a  deep  cut,  eighty  rods  long,  into  and  upon 
a  trestle  work  of  the  company,  there  was  aggressive  malfeasance.  In 
the  Massachusetts  case,  the  Court  held  that  a  party  building  a  dam 
across  a  stream  must  provide  against  imusual  floods.  We  do  not  think 
these  cases  appUcable  to  the  one  before  us. 

There  could  be  no  n^igence  on  the  part  of  the  appeUee,  of  which 
the  appellant  can  be  heard  to  complain,  imless  at  the  time  he  received 
the  injury,  the  appeUee  was  under  some  obligation  or  duty  to  him  to 
repair  its  freight  house.  "  Actionable  negUgence  exists  only  where 
the  one  whose  act  causes  or  occasions  the  injury  owes  to  the  injured 
person  a  duty,  created  either  by  contract  or  by  operation  of  law,  which 


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160  BUCH  V.  AMORY  MANUFACTURING  CO.         [CHAP,  H. 

he  has  failed  to  discharge."  Pittsburgh,  &c.  R.  W.  Co.  v.  Bingham, 
mpra;  Burdeck  v.  Cheadle,  26  Ohio  St.  393;  Town  of  Salem  v,  GoUer, 
76  Ind.  291.  We  have  shown  that  the  appellee  owed  the  appellant  no 
such  duty. 

The  judgment  below  should  be  affirmed. 

Per  Curiam.  It  is  ordered,  upon  the  foregoing  opinion,  that  the 
judgment  below  be  affirmed,  at  the  costs  of  the  appellant.^ 


BUCH  V.  AMORY  MANUFACTURING  CO. 

Supreme  Court,  New  Hampshire,  December,  1897. 

Reported  in  69  New  Hampshire  ReparU,  257. 

Case.  Trial  by  jury  and  verdict  for  the  plaintiff.  March  30, 1886, 
the  plaintiff,  then  eight  years  of  age  and  unable  to  speak  or  under- 
stand English,  was  injured  by  the  machinery  in  operation  in  the  de- 
fendants' mill.  The  evidence  tended  to  diow  that  the  plaintiff's 
brother,  who  was  thirteen  years  of  age,  was  employed  as  a  back-Jboy 
in  the  mule-spinning  room,  and  that  at  his  request  the  plaintiff  went 
into  the  room  for  the  purpose  of  learning  the  work  of  a  back-boy. 
The  elder  brother  had  no  authority  to  request  or  permit  the  plaintiff 
to  go  into  the  mill  or  to  instruct  him,  imless  it  could  be  inferred  from 
the  fact  testified  to  by  him  that  "  he  saw  other  boys  taking  their 
brothers  to  learn,  as  he  imderstood  from  their  motions."  The  plain- 
tiff was  in  the  mill  for  a  day  and  a  half  imtil  the  accident,  openly 
assisting  more  or  less  in  the  work  of  the  tack-boys.  He  testified  that 
he  was  directed  by  a  person  not  the  overseer  of  the  room,  whom  he 
saw  *'  bossing  "  the  other  boys,  to  pick  up  some  bobbins  and  put  some 
waste  in  a  box.  There  was  evidence  tending  to  show  that  Fulton,  the 
o\erseer,  who  was  in  charge  of  and  hired  the  back-boys  and  other 
operatives  in  the  room,  passed  in  the  allejrs  near  the  plaintiff,  and  that 
he  was  well  acquainted  with  his  help.  He  testified  that  he  had  no 
knowledge  of  the  plaintiff's  presence  in  the  room  until  about  two 

1  Hardcafitle  v.  South  Yorkshire  R.  Co.,  4  H.  &  N.  67;  Ponting  v.  Noakes,  [1894] 
2  Q.  B.  281 :  Scoggin  v.  Atlantic  Cement  Co.,  179  Ala.  213;  Gordon  t;.  Roberts,  162 
Cal.  506;  Whitney  v.  New  York  R.  Co.,  87  Conn.  623;  Gamer  v.  Town,  7  Ga. 
App.  630;  McDermott  v.  Burke,  256  111.  401;  Northwestern  El.  Co.  v.  O'Malley, 
107  111.  App.  599;  Knapp  v.  Doll,  180  Ind.  526;  St.  Joseph  I.  Co.  v.  Bertch,  33  Ind. 
App.  491 :  IJpp  V,  Darner.  150  la.  403;  Bransom  v.  Labrot,  81  Ky.  638;  Mallock  v, 
Derby,  190  Mass.  208;  Flanagan  v.  Sanders,  138  Mich.  253;  Dahl  v.  Valley  Dredg- 
ing (jo.,  125  Minn.  90;  Schnudt  v.  Distilling  Co.h90  Mo.  284;  Henry  v.  Disbrow 
M.  Co.,  144  Mo.  App.  350;  Butler  v.  Chicago  R.  Co.,  155  Mo.  App.  287;  Burrill  v, 
Alexander,  75  N.  H.  554;  Kleinberg  v.  Schween.  134  App.  Div.  493;  Riggle  i;.  Lens, 
71  Or.  125;  Clapp  v.  La  Grill,  103  Tenn.  164;  Stamford  Oil  Co.  v.  Barnes,  103  Tex. 
409;  Denison  Light  Co.  v.  Patton,  105  Tex.  621;  Lunsford  v.  Colonial  Coal  Co., 
115  Va.  346;  Anderson  v.  Northern  R.  Co.,  19  Wash.  340;  West  v,  Shaw,  61  Wash. 
227. 

As  to  setting  traps  for  trespassers,  see  Bird  v.  Holbrook,  4  Bing.  628;  Hooker 
V.  Miller,  37  la.  613.  Compare  Marble  v.  Ross,  124  Mass.  44;  Loomis  v.  Terry,  17 
Wend.  497;  Sherfey  v,  Bartley,  4  Sneed,  58. 


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SECT.  VlJ        BUCH  V.  AMORY  MANUFACTURING  CO.  161 

hours  before  the  accident,  when,  aware  that  the  boy  was  not  an  em- 
ployee, he  directed  him  to  go  out,  and  thinking  he  might  not  under- 
stand English,  took  him  to  an  operative  who  spoke  the  plaintiff's 
language,  whom  he  told  to  send  the  plaintiff  out.  The  plaintiff  tes^ 
tified  that  Fulton  spoke  to  him  and,  as  he  understood,  directed  him 
to  remove  his  vest,  but  that  he  did  not  understand  he  was  ordered  to 
leave.  There  was  no  evidence  except  Fulton's  that  the  order  was 
communicated  to  the  plaintiff  or  understood  by  him.  There  was  no 
evidence  or  claim  that  the  machinery  was  improperly  constructed  or 
operated,  or  that  it  was  out  of  repair.  The  plaintiff's  hand  was  caught 
in  a  gearing  which  the  back-boys  were  instructed  to  avoid,  but  there 
was  no  evidence  that  the  plaintiff  was  given  any  instruction  or  warn- 
ing whatever.  There  was  evidence  tending  to  prove  that  boys  under 
thirteen  years  of  age  were  not  employed  in  the  room,  and  that  the 
place  and  machinery  were  dangerous  for  a  child  of  the  plaintiff's  age. 
Subject  to  exception,  a  motion  that  a  verdict  be  directed  for  the 
defendants  was  denied. 

Carpenter,  C,  J.  On  the  evidence,  the  jury  could  not  properly 
find  that  the  plaintiff  was  upon  the  premises  of  the  defendants  with 
their  consent  or  permission.  Although  there  was  evidence  tending  to 
show  that  other  back-boys  had  taken  their  brothers  into  the  room  for 
the  purpose  of  instructing  them  in  the  business,  there  was  no  sufficient 
evidence  that  the  fact  that  they  did  so  was  known  to  the  defendants, 
and  there  was  evidence  that  on  the  first  occasion  brought  to  their 
knowledge  they  objected.  Upon  this  state  of  the  evidence,  a  license 
by  the  defendants  —  whether  material  or  immaterial  —  for  the 
plaintiff's  presence  in  the  room  could  not  legitimately  be  inferred. 
The  plaintiff  was  a  trespasser. 

The  defendant's  machinery  was  in  perfect  order  and  properly  man- 
aged. They  were  conducting  their  lawful  business  in  a  lawful  way 
and  in  the  usual  and  ordinary  manner.  During  the  plaintiff's  pres- 
ence they  made  no  change  in  the  operation  of  their  works  or  in  their 
method  of  doing  business.  No  unmediate  or  active  intervention  on 
their  part  caused  the  injury.  It  resulted  from  the  joint  operation  of 
the  plaintiff's  conduct  and  the  ordinary  and  usual  condition  of  the 
premises.  Under  these  circumstances,  an  adult  in  full  possession  of 
his  faculties,  or  an  infant  capable  of  exercising  the  measure  of  cane' 
necessary  to  protect  himself  fh)m  the  dangers  of  the  situation,  whether 
he  was  on  the  premises  by  permission  or  as  a  trespasser,  could  not 
recover. 

The  plaintiff  was  an  infant  of  eight  years.  The  particular  circum- 
stances of  the  accident  —  how  or  in  what  manner  it  happened  that 
the  plaintiff  caught  his  hand  in  the  gearing  —  are  not.  disclofted  by 
the  case.  It  does  not  appear  that  any  evidence  was  offered  tending  to 
show  that  he  was  incapable  of  knowing  the  danger  from  putting  his 
hand  in  contact  with  the  gearing,  or  of  exercising  a  measure  of  care 


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162  BUCH  V.  AMORT  MANUFACTURING  CO.         [CHAP.  II. 

sufficient  to  avoid  the  danger.  Such  an  incapacity  cannot  be  pre- 
sumed. Stcme  V.  Railroad,  115  N.  Y.  104,  10&-111;  Hayes  v.  Nor- 
cross,  162  Mass.  546,  548;  Mulligan  t;.  Curtis,  100  Mass.  512,  514; 
Ck)sgrove  v.  Ogden,  49  N.  Y.  255,  258;  Kunz  v.  Troy,  104  N.  Y.  344, 
351;  Lovett  v.  Raihx)ad,  9  Allen,  557,  563. 

An  infant  is  bound  to  use  the  reason  he  possesses  and  to  exercise 
the  degree  of  care  and  caution  of  which  he  is  capable.  If  the  plaintiff 
could  br  the  due  exercise  of  his  intellectual  and  physical  powers  have 
avoide<ji  the  injury,  he  is  no  more  entitled  to  recover  than  an  adult 
would/be  under  the  same  circumstances.  The  biu^den  was  upon  him, 
and  the  case  might  be  disposed  of  upon  the  ground  that  he  adduced 
no  <3^dence  tending  to  show  that  he  had  not  sufficient  reason  and  dis- 
cr^on  to  appreciate  the  particular  risk  of  injury  that  he  incurred  and 
tpmvoid  it.  But  it  may  be  that  evidence  tending  to  show  the  plaintiff's 
mptpacity  was  adduced,  and  that  the  case  is  silent  on  the  subject 
b^ause  this  particular  question  was  not  made  by  the  defendants, 
j/ Assuming,  then,  that  the  plaintiff  was  incapable  either  of  appreci- 
^ing  the  danger  or  of  exercising  the  care  necessary  to  avoid  it,  is  he, 
upon  the  facts  stated,  entitled  to  recover  ?  He  was  a  trespasser  in  a 
place  dangerous  to  children  of  his  age.  In  the  conduct  of  their  busi- 
ness and  management  of  their  machinery  the  defendants  were  with- 
out fault.  The  only  negligence  charged  upon  or  attributed  to  them 
is  that,  inasmuch  as  they  could  not  make  the  plaintiff  understand  a 
command  to  leave  the  premises  and  ought  to  have  known  that  they 
could  not,  they  did  not  forcibly  eject  him. 

Actionable  n^ligence  is  the  neglect  of  a  legal  duty.  The  defend- 
ants are  not  liable  unless  they  owed  to  the  plaintiff  a  legal  duty  which 
they  n^ected  to  perform.  With  purely  moral  obligations  the  law 
does  not  deal.  For  example,  the  priest  and  Levite  who  passed  by  on 
the  other  side  were  not,  it  is  supposed,  liable  at  law  for  the  continued 
suffering  of  the  man  who  fell  among  thieves,  which  they  might  and 
morally  ought  to  have  prevented  or  relieved.  Suppose  A,  standing 
close  by  a  railroad,  sees  a  two-year-old  babe  on  the  track  and  a  car 
approaching.  He  can  easily  rescue  the  child  with  entire  safety  to 
himself,  and  the  instincts  of  humanity  require  him  to  do  so.  If  he 
does  not,  he  may,  perhaps,  justly  be  styl^  a  ruthless  savage  and  a 
moral  monster;  but  he  is  not  liable  in  damages  for  the  child's  injiuy, 
or  indictable  imder  the  statute  for  its  death.    P.  S.,  c.  278,  s.  8. 

"  In  dealing,  with  cases  which  involve  injuries  to  children,  courts 
.  .  .  have  sometimes  strangely  confounded  legal  obligation  with  sen- 
timents that  are  independent  of  law."  Indianapolis  v.  Emmelman, 
108  Ind.  530.  "  It  is  important  to  bear  in  mind,  in  actions  for  injuries 
to  children,  a  very  simple  and  fundamental  fact,  which  in  this  class  of 
cases  is  sometimes  strangely  lost  sight  of,  viz.,  that  no  action  arises 
without  a  breach  of  duty."  2  Thomp.  Neg.  1 183,  note  3.  "No  action 
will  lie  against  a  spiteful  man,  who,  seeing  another  running  into  dan- 


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SECT.  VlJ         BUCH  t;.  AMORY  MANUFACTURING  CO. 


163 


ger,  merely  omits  to  warn  him.  To  bring  the  case  within  the  category 
of  actionable  negUgence  some  wrongful  act  must  be  shown,  or  a  breach 
of  some  positive  duty;  otherwise,  a  man  who  s^ows  strangers  to  roam 
over  his  property  would  be  held  answerable  for  not  protecting  them 
against  any  danger  they  might  encoimter  whilst  using  the  license." 
Gautret  v.  Egerton,  L.  R.  2  C.  P.  371,  375. 

What  duties  do  the  owners  owe  to  a  trespasser  upon  their  premises  ? 
They  may  eject  him,  using  such  force  and  such  only  as  is  necessary 
for  the  piupose  They  are  bound  to  abstain  from  apy  other  or  further 
intentional  or  negligent  acts  of  personal  violencejf*'i'4|Ruid  to  inflict 
upon  him  by  means  of  their  own  active  intervention  no  injury  which 
by  due  care  they  can  avoid.  They  are  not  bound  to  warn  him  against 
hidden  or  secret  dangers  arising  from  the  condition  of  the  premises 
(Redigan  v.  Railroad,  155  Mass.  44, 47, 48),  or  to  protect  him  against 
any  injury  that  may  arise  from  his  own  acts  or  those  of  other  persons. 
In  short,  if  they  do  nothing,  let  him  entirely  alone,  in  no  manner  in- 
terfere with  him,  he  can  have  no  cause  of  action  against  them  for  any 
injury  that  he  may  receive.  On  the  contrary,  he  is  Uable  to  them  for 
any  damage  that  he  by  his  imlawful  meddling  may  cause  them  or  their 
property.  What  greater  or  other  legal  obligation  was  cast  on  these 
defendants  by  the  circumstance  that  the  plaintiff  was  (as  is  assumed) 
an  irresponsible  infant  ? 

If  landowners  are  not  boimd  to  warn  an  adult  trespasser  of  hidden 
dangers,  —  dangers  which  he  by  ordinary  care  cannot  discover  and, 
therefore,  cannot  avoid,  —  on  what  ground  can  it  be  claimed  that 
they  must  warn  an  infant  of  open  and  visible  dangers  which  he  is  un- 
able to  appreciate  ?  No  legal  distinction  is  perceived  between  the 
duties  of  the  owners  in  one  case  and  the  other.  The  situation  of  the 
adult  in  front  of  secret  dangers  which  by  no  degree  of  care  he  can  dis- 
cover, and  that  of  the  infant  incapable  of  comprehending  danger,  is 
in  a  legal  aspect  exactly  the  same.  There  is  no  apparent  reason  for 
holding  that  any  greater  or  other  duty  rests  upon  the  owners  in  one 
case  than  in  the  other. 

There  is  a  wide  difference  —  a  broad  gulf  —  both  in  reason  and  in 
law,  between  causing  and  preventing  an  injury;  between  doing  by 
negligence  or  otherwise  a  wrong  to  one's  neighbor,  and  preventing  him 
from  injuring  himself;  between  protecting  him  against  injury  by 
another  and  guarding  him  from  injury  that  may  accrue  to  him  from 
the  condition  of  the  premises  which  he  has  unlawfuUy  invaded.  The 
duty  to  do  no  wrong  is  a  legal  duty.  The  duty  to  protect  against 
wrong  is,  generally  speaking  and  excepting  certain  intimate  relations 
in  the  nature  of  a  trust,  a  moral  obligation  only,  not  recognized  or 
enforced  by  law.  Is  a  spectator  liable  if  he  sees  an  intelligent  man  or 
an  imintelligent  infant  running  into  danger  and  does  not  warn  or 
forcibly  restrain  him  ?  What  difference  does  it  make  whether  the 
r^anger  is  on  another's  land,  or  upon  his  own,  in  case  the  man  or  in- 


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164  BUCH  V.  AMORT  MANUFACTURING  CO.         [CHAP.  H. 

fant  is  not  there  by  his  express  or  implied  invitation  ?  If  A  sees  an 
eight-year-old  boy  beginning  to  climb  into  his  garden  over  a  wall 
stuck  with  spikes  and  does  not  warn  him  or  drive  him  off,  is  he  liable 
in  damages  if  the  boy  meets  with  injury  from  the  spikes  ?  Degg  v. 
Railway,  1  H.  &  N.  773,  777.  I  see  my  neighbor's  two-year-old  babe 
in  dangerous  proximity  to  the  machinery  of  his  windmiU  in  his  yard, 
and  easily  might,  but  do  not,  rescue  him.  I  am  not  liable  in  damages 
to  the  child  for  his  injuries,  nor,  if  the  child  is  killed,  punishable  for 
manslaughter  by  the  conunon  law  or  under  the  statute  (P.  S.,  c.  278, 
8.  8),  because  the  child  and  I  are  strangers,  and  I  am  under  no  legal 
duty  to  protect  him.  Now  suppose  I  see  Uie  same  child  trespassing 
in  my  own  yard  and  meddling  in  like  manner  with  the  dangerous 
machinery  of  my  own  windmill.  What  additional  obligation  is  cast 
upon  me  by  reason  of  the  child's  trespass  ?  The  mere  fact  that  the 
child  is  imable  to  take  care  of  himself  does  not  impose  on  me  the  legal 
duty  of  protecting  him  in  the  one  case  more  than  in  the  other.  Upon 
what  principle  of  law  can  an  infant  by  coming  unlawfully  upon  my 
premises  impose  upon  me  the  legal  duty  of  a  guardian  ?  None  has 
been  suggested,  and  we  know  of  none. 

An  infant,  no  matter  of  how  tender  years,  is  liable  in  law  for  his 
trespasses.  lCh.Pl.86;  2  Kent,  241;  Cool.  Torts,  103;  Poll.  Torts, 
46;  2  Add.  Torts,  1126,  1153;  10  Am.  A  Eng.  Enc.  Law,  668,  et  seq.; 
Humphrey  v.  Douglass,  10  Vt.  71;  School  District  v.  Bragdon,  23 
N.  H.  507;  Eaton  v.  Hill,  50  N.  H.  235;  Bullock  v.  Babcock,  3  Wend. 
391 ;  Williams  v.  Hays,  143  N.  Y.  442, 446-451 ;  Conklin  v.  Thompson, 
29  Barb.  218;  Neal  v.  Gillett,  23  Conn.  437;  Huchting  v.  Engel,  17 
Wis.  237.  If,  then,  the  defendants'  machinery  was  injured  by  the 
plaintiff's  act  in  putting  his  hand  in  the  gearing,  he  is  liable  to  them 
for  the  damages  in  an  action  of  trespass  and  to  nominal  damages  for 
the  wrongful  entry.  It  would  be  no  answer  to  such  an  action  that  the 
defendants  might  by  force  have  prevented  the  trespass.  It  is  impos- 
sible to  hold  that  while  the  plaintiff  is  liable  to  the  defendants  in  tres- 
pass, they  are  liable  to  him  in  case  for  neglecting  to  prevent  the  act 
which  caused  the  injury  both  to  him  and  them.  Cases  of  enticement, 
allurement,  or  invitation  of  infants  to  their  injury,  or  setting  traps  for 
them,  and  cases  relating  to  the  sufficiency  of  public  wajrs,  or  to  the 
exposure  upon  them  of  machinery  attractive  and  dangerous  to  children 
have  no  application  here. 

Danger  from  machinery  in  motion  in  the  ordinary  course  of  busi- 
ness cannot  be  distinguished  from  that  arising  from  a  well,  pit,  open 
scuttle,  or  other  stationary  object.  The  movement  of  the  works  is  a 
part  of  the  regular  and  normal  condition  of  the  premises.  Sullivan  v. 
Raiboad,  156  Mass.  378;  Holbrook  v.  Aldrich,  168  Mass.  15;  Rodgers 
V.  Lees,  140  Pa.  St.  475.  The  law  no  more  compels  the  owners  to  shut 
down  their  gates  and  stop  their  business  for  the  protection  of  a  tres- 
passer than  it  requires  them  to  maintain  a  railing  about  an  open 


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SECT.  VI.]      KEFFE  V.  MILWAUKEE  AND  ST.  PAUL  RY.  CO.         165 

scuttle  or  to  fence  in  their  machinery  for  the  same  purpose.  Benson 
V.  Ck)mpany,  77  Md.  535;  Mergenthaler  v.  Kirby,  79  Md.  182.  There 
was  no  evidence  tending  to  show  that  the  defendants  neglected  to  per- 
form any  legal  duty  to  the  plaintiff.  McGuiness  v.  Butler,  159  Mass. 
233,  236,  238;  Grindley  v.  McKechnie,  163  Mass.  494;  Holbrook  v. 
Aldrich,  168  Mass.  15,  17,  and  cases  cited. 

Verdict  set  aside:  judgment  for  the  d^endants.^ 
Pabsons,  J.,  did  not  sit:  the  others  concurred. 


KEFFE  V.  MILWAUKEE  AND  ST.  PAUL  RAILWAY  CO. 

Supreme  Court,  Minnesota,  January  11,  1875. 

Reported  in  21  Minnesota  ReportSf  207. 

The  plaintiff,  an  infant,  brought  this  action  in  the  Court  of  Com- 
mon Pleas  for  Ramsey  County  to  recover  damages  for  injiuies  sus- 
tained while  playing  upon  a  turn-table  of  defendant.  The  circum- 
stances under  which  plaintiff  was  injured  are  thus  stated  in  the 
complaint:  "  That  in  connection  with  said  railroad  "  [of  defendant] 
"  defendant,  before  and  up  to  the  month  of  October,  1867,  used  and 
operated  a  certain  turn-table,  located  on  the  lands  of  said  defendant 
in  said  town  of  Northfield,  which  said  turn-table  was  so  constructed 
and  arranged  as  to  be  easily  turned  around  and  made  to  revolve  in  a 
horizontal  direction." 

After  minutely  describing  the  turn-table,  the  complaint  proceeds: 
"  That  said  tiun-table  was  situated  in  a  public  place,  near  to  a  pas- 
senger depot  of  the  defendant,  and  within  120  feet  from  the  residence 
and  home  of  plaintiff.  That  said  turn-table  was  unfastened  and  in  no 
way  protected,  fenced,  guarded,  or  enclosed,  to  prevent  it  from  being 
turned  aroimd  at  the  pleasure  of  small  children,  although  the  same 
could  at  all  times  be  readily  locked  and  securely  fastened. 

"  That  said  turn-table  .  .  .  was  in  the  possession  and  under  the 
control  of  defendant,  and  not  necessary  in  operating  said  railroad  and 
it  was  the  duty  of  said  defendant  to  keep  said  turn-table  fastened  or 
in  some  way  protected,  so  that  children  could  not  readily  have  access 
thereto  and  revolve  the  same.  That  the  same  was  not  so  protected  or 
fastened,  and  that  said  turn-table,  when  left  unfastened,  was  very 
attractive  to  yoimg  children,  and  that  while  the  same  was  being 

1  Latham  v.  Johnson,  [1913]  1  K.  B.  398;  Cleveland  R.  Co.  v.  Ballentine,  84 
Fed.  935;  Riedel  v.  West  Jersey  Co.,  177  Fed.  374;  Pastorello  v.  Stone,  89  Conn. 
286;  Norman  i;.  Bartholomew,  104  El.  App.  667:  Nelson  v.  Bumham  Co.,  114  Me. 
213;  Peninsular  Trust  Co.  v.  City,  131  Mich.  571:  Houck  v.  Chicago  R.  Co..  116 
Mo.  App.  559;  Hughes  v,  Boston  R.  Co.,  71  N.  H.  279;  Leithold  v.  Philadelphia 
R.  Co.,  47  Pa.  Super.  Ct.  137;  Dobbms  v,  Missouri  R.  Co.,  91  Tex.  60;  Bottum  v. 
Hawks,  84  Vt.  370;  Curtis  v.  Stone  Quarries,  37  Wash.  355;  Uthermohler  v.  Mining 
Co.,  50  W.  Va.  457;  Ritz  v.  City,  45  W.  Va.  262  Accord.  Compare  Walsh  v.  Pitts- 
burg R.  Co.,  221  Pa.  St.  463;  Lyttle  v.  Harlem  Coal  Co.,  167  Ky.  345. 


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166       KEFFE  V.  MILWAUKEE  AND  8T.  PAUL  RY.  CO.        [CHAP.  II. 

moved  by  children,  and  at  all  times  when  left  imfastened,  it  was 
dangerous  to  persons  upon  or  near  it. 

"  That  defendant  had  notice  of  all  the  aforesaid  facts  before  and  at 
the  time  the  injury  herein  named  occurred  to  the  plaintiff. 

"  That  plaintiff,  on  September  11, 1867,  was  a  child  of  tender  years, 
without  judgment  or  discretion,  he  being  at  that  date  seven  years  old, 
and  that  in  consequence  of  the  carelessness,  negUgence,  and  improper 
conduct  of  said  defendant,  in  not  locking,  enclosing,  or  otherwise 
fastening  said  turn-table,  and  by  the  negligence,  carelessness,  and  im- 
proper conduct  of  said  defendant,  its  agents,  and  servants,  in  allowing 
said  turn-table  to  be  and  remain  unfastened,  insecure,  and  improperly 
put  in  motion,  it  was,  at  the  date  last  aforesaid,  revolved  by  other 
children,  over  whom  the  parents  and  guardians  of  plaintiff  had  no 
control,  and  without  their  knowledge,  and,  while  being  so  revolved,  the 
plaintiff,  being  on  said  turn-table,  had  his  right  leg  caught  near  the 
knee,  between  the  surface  of  said  turn-table  and  said  abutment  or  wall, 
and  between  the  iron  rail  on  said  turn-table  and  the  iron  rail  on  said 
abutment  or  wall,  and  said  leg  was  thereby  so  bruised,  broken,  man- 
gled, and  fractured,  as  to  render  amputation  necessary." 

The  complaint  further  alleges  that  the  injury  was  caused  by  defend- 
ant's negligence,  and  without  any  fault  or  negligence  on  the  part  of 
the  plaintiff,  or  his  parents  or  guardians,  etc. 

Tlie  defendant  having  answered  the  complaint,  and  the  action 
having  been  called  for  trial,  the  defendant  moved  for  judgment  on 
the  pleadings.  The  motion  was  granted  by  Hall,  J.,  and  judgment 
entered  accordingly,  from  which  plaintiff  appealed. 

Bigelaw,  Fhmdrau  &  Clark j  for  respondent,  relied  on  the  opinion  of 
Hall,  J.,  and  the  cases  therein  cited.^ 

Young,  J.  In  the  elaborate  opinion  of  the  Court  below,  which 
formed  the  basis  of  the  argument  for  the  defendant  in  this  Court,  the 
case  is  treated  as  if  the  plaintiff  was  a  mere  trespasser,  whose  tender 
years  and  childish  instincts  were  no  excuse  for  the  commission  of  the 
trespass,  and  who  had  no  more  right  than  any  other  trespasser  to  re- 
quire the  defendant  to  exercise  care  to  protect  him  from  receiving  in- 
jury while  upon  its  turn-table.  But  we  are  of  opinion  that,  upon  the 
facts  stated  in  the  complaint,  the  plaintiff  occupied  a  very  different 
position  from  that  of  a  mere  volimtary  trespasser  upon  the  defendant's 
prooerty,  and  it  is  therefore  unnecessary  to  consider  whether  the 
proposition  advanced  by  the  defendant's  counsel,  viz.,  that  a  land- 
owner owes  no  duty  of  care  to  trespassers,  is  not  too  broad  a  statement 
of  a  rule  which  is  true  in  many  instances. 

To  treat  the  plaintiff  as  a  voluntary  trespasser  is  to  ignore  the  aver- 
ments of  the  complaint,  that  the  turn-table,  which  was  situate  in  a 
public  (by  which  we  understand  an  open,  frequented)  place,  was, 

1  This  opinion,  too  long  to  be  inserted  here,  will  be  found  in  2  Cent.  Law  Jour- 
nal, 170. 


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SECT.  VI.]     KEFFE  V.  BOLWAUKEB  AND  ST.  PAUL  BY.  CO.         167 

when  left  unfastened,  very  attractive,  and,  when  put  in  motion  by 
them,  was  dangerous  to  young  children,  by  whom  it  could  be  easily 
put  in  motion,  and  many  of  whom  were  in  the  habit  of  going  upon  it 
to  play.  The  turn-table,  being  thus  attractive,  presented  to  the  nat- 
ural instincts  of  young  children  a  strong  temptation;  and  such  chil- 
dren, following,  as  they  must  be  expected  to  follow,  those  natimJ 
instincts,  were  thus  allured  into  a  danger  whose  nature  and  extent 
they,  being  without  judgment  or  discretion,  could  neither  apprehend 
nor  appreciate,  and  against  which  they  could  not  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  turn-table  by  the  defendant's 
own  conduct,  and  that,  as  to  him,  the  turn-table  was  a  hidden  danger, 
—  a  trap. 

While  it  is  held  that  a  mere  licensee  "  must  take  the  permission  with 
its  concomitant  conditions,  —  it  may  be  perils,"  Hounsell  v.  Smyth, 
7  C.  B.  (n.  s.)  731;  Bolch  v.  Smith,  7  H.  &  N.  836,  yet  even  such 
licensee  has  a  right  to  require  that  the  owner  of  the  land  shall  not 
knowingly  and  carelessly  put  concealed  dangers  in  his  way.  Bolch  v. 
&nith,  per  Channell  and  Wilde,  BB.;  Corby  v.  Hill,  4  C.  B.  (n.  s.) 
556,  per  Willcs,  J. 

And  where  one  goes  upon  the  land  of  another,  not  by  mere  license, 
but  by  invitation  from  the  owner,  the  latter  owes  him  a  larger  duty. 
"  The  general  rule  or  principle  applicable  to  this  class  of  cases  is  that 
an  owner  or  occupant  ia  bound  to  keep  his  premises  in  a  safe  and  suit- 
able condition  for  those  who  come  upon  and  pass  over  them,  using  due 
care,  if  he  has  held  out  any  inducement,  invitation,  or  allurement, 
either  express  or  implied,  by  which  they  have  been  led  to  enter 
thereon."  Per  Bigelow,  C.  J.,  in  Sweeny  v.  Old  Colony  &  Newport 
R.  Co.,  10  Allen,  368,  reviewing  many  cases.  And  see  Indermaiur  v. 
Dames,  L.  R.  1  C.  P.  274;  L.  R.  2  C.  P.  311. 

Now,  what  an  express  invitation  would  be  to  an  adult,  the  tempta- 
tion of  an  attractive  plaything  is  to  a  child  of  tender  years.  If  the 
defendant  had  left  this  turn-table  imfastened  for  the  purpose  of  at- 
tracting young  children  to  play  upon  it,  knowing  the  danger  into 
which  it  was  thus  alluring  them,  it  certainly  would  be  no  defence  to 
an  action  by  the  plaintiff,  who  had  been  attracted  upon  the  turn-table 
and  injured,  to  say  that  the  plaintiff  was  a  trespasser,  and  that  his 
childish  instincts  were  no  excuse  for  his  trespass.  In  Townsend  v. 
Wathen,  9  East,  277,  it  was  held  to  be  unlawful  for  a  man  to  tempt 
even  his  neighbor's  dogs  into  danger,  by  setting  traps  on  his  own 
land,  baited  with  strong-scented  meat,  by  which  the  dogs  were  allured 
to  come  upon  his  land  and  into  his  traps.  In  that  case.  Lord  Ellen- 
borough  asks,  "  What  is  the  difference  between  drawing  the  animal 
into  the  trap  by  his  natiu^l  instinct,  which  he  cannot  resist,  and 
putting  him  there  by  manual  force  ?  "    And  Grose,  J.,  says,  "  A  man 


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168       KBFFB  V.  MILWAUKEiE  AND  ST.  PAUL  RY.  CO.       [CHAP.  H. 

must  not  set  traps  of  this  dangerous  description  in  a  situation  to  in- 
vite his  neighbor's  dogs,  and,  as  it  were,  to  compel  them  by  their 
instinct  to  come  into  the  traps." 

It  is  true  that  the  defendant  did  not  leave  the  turn-table  unfastened 
for  the  purpose  of  injuring  young  children;  and  if  the  defendant  had 
no  reason  to  believe  that  the  unfastened  turn-table  was  likely  to  at- 
tract and  to  injure  yoimg  children,  then  the  defendant  woukl  not  be 
bound  to  use  care  to  protect  from  injury  the  children  that  it  had  no 
good  reason  to  suppose  were  in  any  danger.  But  the  complaint  states 
that  the  defendant  knew  that  the  tiun-table,  when  left  unfastened, 
was  easily  revolved;  that,  when  left  imfastened,  it  was  very  attrac- 
tive, and  when  put  in  motion  by  them,  dangerous,  to  young  children; 
and  knew  also  that  many  children  were  in  the  habit  of  going  upon  it  to 
play.  The  defendant  therefore  knew  that  by  leaving  this  turn-table 
imfastened  and  imguarded,  it  was  not  merely  inviting  young  children 
to  come  upon  the  turn-table,  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  they  could 
not  be  expected  to  protect  themselves. 

We  agree  with  the  defendant's  counsel  that  a  railroad  company  is 
not  required  to  make  its  land  a  safe  playground  for  children.  It  has 
the  same  right  to  maintain  and  use  its  turn-table  that  any  landowner 
has  to  use  his  property.  It  is  not  an  insurer  of  the  lives  or  limbs  of 
young  children  who  play  upon  its  premises.  We  merely  decide  that 
when  it  sets  before  young  children  a  temptation  which  it  has  reason  to 
believe  will  lead  them  into  danger,  it  must  use  ordinary  care  to  protect 
them  from  harm.  What  would  be  proper  care  in  any  case  must,  in 
general,  be  a  question  for  the  jury,  upon  all  the  circumstances  of  the 
case. 

The  position  we  have  taken  is  fully  sustained  by  the  following  cases, 
some  of  which  go  much  farther  in  imposing  upon  the  owner  of  dan- 
gerous articles  the  duty  of  using  care  to  protect  from  injiuy  children 
who  may  be  tempted  to  play  near  or  meddle  with  them,  than  it  is 
necessary  to  go  in  this  case.  Lynch  v.  Nurdin,  1  Q.  B.  29;  Birge  v. 
Gardiner,  19  Conn.  507;  Whirley  v.  Whiteman,  1  Head,  610. 

It  is  true  that,  in  the  cases  cited,  the  principal  question  discussed 
is  not  whether  the  defendant  owed  the  plaintiff  the  duty  of  care,  but 
whether  the  defendant  was  absolved  from  liability  for  breach  of  duty 
by  reason  of  the  fact  that  the  plaintiff  was  a  trespasser,  who,  by  his 
own  act,  contributed  to  the  injury;  and  the  distinction  is  not  sharply 
drawn  between  the  effect  of  the  plaintiff's  trespass,  as  a  bar  to  his 
right  to  require  care,  and  the  plaintiff's  contributory  negligence,  as  a 


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SECT.  VI.]       KEFFE  V.  MILWAUEIEE  AND  ST.  PAUL  RY.  CO.        169 

bar  to  his  right  to  recover  for  the  defendant's  failure  to  exercise  such 
care  as  it  was  his  duty  to  use.  But  as  a  young  child,  whom  the  defend- 
ant knowingly  tempts  to  come  upon  his  land,  if  anything  more  than 
a  technical  trespasser,  is  led  into  the  conunission  of  the  trespass  by  the 
defendant  himself,  and  thus  occupies  a  position  widely  different  from 
that  of  an  ordinary  trespasser,  the  fact  that  the  Courts,  in  the  cases  re- 
ferred to,  assumed,  instead  of  proving,  that  the  defendant  owed  to  a 
yoimg  child,  under  such  circumstances,  a  duty  he  would  not  owe  to  an 
ordinary  trespasser,  for  whose  trespass  he  was  not  in  any  way  respon- 
sible, does  not  weaken  the  authority  of  those  cases.  And  in  Railroad^ 
Co.  v.  Stout,  17  Wall.  657  (a  <}ase  in  all  respects  similar  to  the  pres- 
ent), the  distinction  insisted  on  by  counsel  is  taken  by  Mr.  Justice 
Hunt,  and  the  circumstance  that  the  plaintiff  was  in  some  sense  a 
trespasser  is  held  not  to  exempt  the  defendant  from  the  duty  of  care. 
In  the  charge  of  the  learned  circuit  judge  at  the  trial  of  the  last  named 
case  (reported  imder  the  title  of  Stout  v.  Sioux  City  &  Pacific  R.  Co., 
2  Dillon,  294),  the  elements  which  must  concur  to  render  the  defend- 
ant liable,  in  a  case  like  the  present,  are  clearly  stated. 

In  Hu^es  v.  Macfie,  2  Hiu-lst.  &  Coltm.  744,  and  Mangan  v.  Atter- 
ton,  L.  R.  1  Exch.  239,  cited  by  defendant's  counsel,  there  was  nothing 
to  rfiow  that  the  defendants  knew  or  had  reason  to  apprehend  that  the 
cellar  lid  in  the  one  case,  or  the  crushing  machine  in  the  other,  would 
be  likely  to  attract  young  children  into  danger.  It  must  be  conceded 
that  Hughes  v.  Macfie  is  not  easily  to  be  reconciled  with  Birge  v.  Gar- 
diner, and  that  Mangan  v.  Atterton  seems  to  conflict  with  Lynch  v. 
Nurdin;  but  whether  correctly  decided  or  otherwise,  they  do  not 
necessarily  conflict  with  our  decision  in  this  case. 

Much  reliance  is  placed  by  defendant  on  Phila.  &  Reading  R.  Co. 
V.  Hmnmell,  44  Penii.  St.  375  and  Gillis  v.  Penn.  R.  Co.,  59  Penn. 
St.  129.  In  the  first  of  these  cases,  the  plaintiff,  a  young  child,  was 
injured  by  coming  upon  the  track  while  the  cars  were  in  motion.  The 
only  neghgence  charged  upon  the  defendant  was  the  omission  to  give 
any  signal  at  or  after  the  starting  of  the  train.  If  the  plaintiff  had 
been  crossing  the  track,  through  one  of  the  openings  which  the  com- 
pany had  suffered  the  people  in  the  neighborhood  to  make  in  the  train 
while  standing  on  the  track,  and  the  cars  had  then  been  run  together 
upon  him,  without  any  warning,  the  case  would  more  nearly  resemble 
the  present;  but  the  facts,  as  they  appear,  show  that  the  company  used 
abundant  care,  and  that  it  had  no  reason  to  suppose  that  the  plaintiff 
was  exposed  to  danger;  and  the  decision  is  put  upon  the  latter  ground, 
although  Strong,  J.,  delivering  the  opinion  of  the  Court,  uses  language 
which  lends  some  support  to  the  defendant's  contention  in  this  case. 
GiUis  V.  Penn.  R.  Co.  was  properly  decided,  on  the  ground  that  the 
company  did  nothing  to  invite  the  plaintiff  upon  the  platform,  by  the 
fall  of  which  he  was  injured,  and  that  the  platform  was  strong  enough 
to  bear  the  weight  of  any  crowd  of  people  which  the  company  might 


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170  FROST  V.  EASTERN  RAILROAD  [CHAP.  U. 

reasonably  expect  would  come  upon  it.  Neither  of  these  cases  is  an 
authority  against,  while  a  later  case  in  the  same  court,  Kay  v.  Penn. 
R.  Co.,  65  Penn.  St.  269,  tends  strongly  to  support,  the  plaintiff's 
right  of  action  in  this  case;  and  the  recent  case  of  Pittsburg,  A.  &  M. 
Passenger  R.  Co.  v.  Caldwell,  74  Penn.  St.  421,  points  in  the  same 
direction. 

It  was  not  urged  upon  the  argument  that  the  plaintiff  was  guilty  of 
contributory  negligence,  and  we  have  assumed  that  the  plaintiff  exer- 
cised, as  he  was  boimd  to  do,  such  reasonable  care  as  a  child  of  his 
age  and  imderstanding  was  capable  of  using,  and  that  there  was  no 
n^Iigence  on  the  part  of  his  parents  or  guardians,  contributing  to  his 
injury.  Jiuigment  reversed.^ 


FROST  V.  EASTERN  RAILROAD 

Supreme  Court,  New  Hampshire,  December,  1886. 

Reported  in  64  New  Hampehire  Reports,  220. 

Case,  for  personal  injuries  from  the  alleged  negligence  of  the  de- 
fendants in  not  properly  guarding  and  securing  a  turn-table.  The 
plaintiff,  who  sues  by  his  father  and  next  friend,  was  seven  years  old 
when  the  accident  occurred,  June  23,  1877,  and  the  action  was  com- 
menced June  7,  1884.  Plea,  the  general  issue  and  statute  of  limita- 
tions. A  motion  for  a  nonsuit  was  denied,  and  the  defendants 
excepted.  Verdict  for  the  plaintiff.  The  facts  are  suflSciently  stated 
in  the  opinion. 

Clark,  J.  The  action  is  not  barred  by  the  statute  of  limitations. 
"  Any  infant,  married  woman,  or  insane  person  may  bring  any  per- 
sonal actions  within  two  years  after  such  disability  is  removed." 
G.  L.,  c.  221,  s.  7. 

As  a  general  rule,  in  cases  where  a  disability  exists  when  the  right 
of  action  accrues,  the  statute  does  not  run  during  the  continuance  of 
the  disability,  and  it  has  not  commenced  to  run  against  the  plaintiff. 

»  Railroad  Co.  v.  Stout,  17  Wall.  657;  Union  R.  Co.  v.  McDonald,  152  U.  S.  262 
(slackpit) ;  St.  Louis  R.  Co.  v.  Underwood,  (C.  C.  A.)  194  Fed.  363  (pile  of  lumber) ; 
Southern  R.  Co.  v.  Bunt,  131  Ala.  591 ;  Thompson  v.  Alexander  Cotton  Mills  Co., 
190  Ala.  184  (drain  containing  hot  water);  Barrett  v.  Southern  P.  R.  Co.,  91  Cal. 
296  (but  see  Peters  v.  Bowman,  115  Cal.  345  —  pond;  George  v.  Los  Angeles  R. 
Co.,  126  Cal.  357  —  cars  standing  imattended);  Ferguson  v,  Columbus  R.  Co.,  75 
Ga.  637,  77  Ga.  102  (but  see  Savannah  R.  Co.  v.  Beavers,  113  Ga.  398  —  excava- 
tion)- City  V.  McMahon,  154  111.  141;  Donk  Bros.  v.  Leavitt,  109  111.  App.  385; 
Belt  R.  Co.  V.  Charters,  123  III.  App.  322  (but  see  American  Advertising  Co.  v. 
Flannigan,  100  111.  App.  452);  Chicago  R.  Co.  v.  Fox,  38  Ind.  App.  268;  Lewis  v. 
Cleveland  R.  Co.,  42  Ind.  App.  337;  Edgington  v.  Burlington  R.  Co.,  116  la.  410 
(but  see  Anderson  v.  Ft.  Dodge  R.  Co.,  150  la.  465);  Price  v.  Atchison  Water  Co., 
58  Kan.  551  (reservoir):  Kansas  City  R.  Co.  v.  Matson,  68  Kan.  815  (wood  pile); 
Osbom  V.  Atchison  R.  Co.,  86  Kan.  440  (abandoned  round  house  —  but  see  Somer- 
field  V.  Land  and  Power  Co.,  93  Kan.  762  —  unguarded  canal);  Bransom  v. 
Labrot,  81  Ky.  638  (pile  of  timber);  Palermo  v.  Orleans  Ice  Co.,  130  La.  833 
(gutter  containing  hot  water);  Koons  v.  St.  Louis  R.  Co.,  65  Mo.  592;  Schmidt  v. 


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SECT.  VI.]  FROST  V.  EASTERN  RAILROAD  171 

Pierce  v.  Dustin,  24  N.  H.  417;  Little  v.  Downing,  37  N.  H.  366.  It 
is  said  that  the  plaintiff's  next  friend  was  under  no  disability,  that  he 
could  have  brought  the  action  at  any  time  within  six  years  after  the 
right  of  action  accrued,  and  therefore  the  statute  should  apply  to  this 
case.  It  is  an  answer  to  this  suggestion  that  it  is  the  infant's  action, 
and  the  failure  of  the  next  friend  to  bring  suit  within  six  years  is  no 
bar  to  the  plaintiff's  right  of  action.    Wood  Lim.  of  Act.  476. 

The  motion  for  a  nonsuit  raises  the  question  whether  there  was  evi- 
dence upon  which  the  jiuy  could  properly  find  a  verdict  for  the  plain- 
tiff. Paine  v.  Railway,  58  N.  H.  611.  The  ground  of  the  action  is, 
that  the  defendants  were  guilty  of  negligence  in  maintaining  a  turn- 
table insecurely  guarded,  which,  being  wrongfully  set  in  motion  by 
older  boys,  caused  an  injiuy  to  the  plaintiff,  who  was  at  that  time 
seven  years  old,  and  was  attracted  to  the  turn-table  by  the  noise  of 
the  older  and  larger  boys  turning  and  playing  upon  it.  The  turn-table 
was  situated  on  the  defendants'  land,  about  sixty  feet  from  the  pubhc 
street,  in  a  cut  with  high,  steep  embankments  on  each  side;  and  the 
land  on  each  side  was  private  property  and  fenced.  It  was  fastened 
by  a  toggle,  which  prevented  its  being  set  in  motion  imless  the  toggle 
was  drawn  by  a  lever,  to  which  was  attached  a  switch  padlock,  which 
being  locked  prevented  the  lever  from  being  used  imless  the  staple  was 
drawn.  At  tiie  time  of  the  accident  the  turn-table  was  fastened  by 
the  toggle,  but  it  was  a  controverted  point  whether  the  padlock  was 
then  locked.  When  secured  by  the  toggle  and  not  locked  with  the 
padlock,  the  turn-table  could  not  be  set  in  motion  by  boys  of  the  age 
and  strength  of  the  plaintiff. 

Upon  these  facts  we  think  the  action  cannot  be  maintained.  The 
aUeged  negligence  complained  of  relates  to  the  construction  and  con- 
dition of  the  turn-table,  and  it  is  not  claimed  that  the  defendants  were 
guilty  of  any  active  misconduct  towards  the  plaintiff.  The  right  of  a 
landowner  in  the  use  of  his  own  land  is  not  limited  or  qualified  like 

Kansas  City  Distilling  Co.,  90  Mo.  284  (hole  made  by  escaping  steam);  Berry  v, 
St.  Louis  R.  Co.,  214  Mo.  593  (but  see  Overholt  v,  Vieths,  93  Mo.  422  —  aban- 
doned quarry;  Barney  v,  Hannibal  R.  Co.,  126  Mo.  372  —  unfenced  freight  yard; 
Kelly  V.  Benas,  217  Mo.  1  —  pile  of  lumber);  Chicago  R.  Co.  v.  Krayenbuhl,  65 
Neb.  889;  Evansich  v.  Gulf  R.  Co.,  67  Tex.  126  (but  see  Missouri  R.  Co.  v. 
Edwards,  90  Tex.  65;  Johnson  v.  Atlas  Supply  Co.,  (Tex.  Civ.  App.)  183  S.  W.  31, 
33);  Smallev  v.  Rio  Grande  R.  Co.,  34  Utah,  423  (but  see  Palmer  v.  Oregon  S.  L. 
Co.,  34  Utah,  466);  Haynes  v.  City,  69  Wash.  419  (but  see  Bamhart  v.  Chicago 
R.  Co..  89  Wash.  304);  Kell^  v.  Southern  R.  Co.,  152  Wis.  328  (but  see  Emond 
V.  Kimberly-Clark  Co.,  159  Wis.  83  —  pond)  Accord. 

Compare  McCabe  v.  American  Woolen  Co.,  (C.  C.  A.)  132  Fed.  1006  (un- 
euarded  canal);  VaUey  Planing  Mill  v.  McDaniel,  119  Ark.  139;  Brinkley  v. 
Cooper,  70  Ark.  331;  Prickett  v,  Pardridge,  189  111.  App.  307;  Stendal  v,  Boyd, 
73  Minn.  53;  Dahl  v.  VaUey  Dredging  Co.,  125  Minn.  90;  Cooper  u,  Overton, 
102Tenn.  211.  ^  ^^        ,  ,         *- 

See  also  Smith,  Landowner's  Liability  to  Children,  11  Harv.  Law  Rev.  349, 
434;  7  Thompson,  Negligence,  §  1031;  Burdick.  Torts  (3d.  ed.),  §§  558-569. 

As  to  the  age  to  which  the  doctrine  is  applicable,  see  Belt  R.  Co.  v.  Charters,  123 
111.  App.  322;  State  Bank  v.  Mandel,  176  fll.  App.  278;  Wilmes  v.  Chicago  R.  Co.. 
175  la.  101;  Shaw  v,  Chicago  R.  Co.,  (Mo.)  184  S.  W.  1151. 


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II 


172  FROST  V.  EASTERN  RAILROAD  [CHAP.  11. 

the  enjoyment  of  a  right  or  privilege  in  which  others  have  an  interest, 
as  the  use  of  a  street  for  highway  purposes  under  the  general  law,  or 
for  other  purposes  under  special  license  (Moynihan  v,  Whidden,  143 
Mass.  287),  where  care  must  be  taken  not  to  infringe  upon  the  lawful 
rights  of  others.  At  the  time  of  his  injury  the  plaintiff  was  using  the 
defendants'  premises  as  a  playground  without  right.  The  turn-table 
was  required  in  operating  the  defendants'  railroad.  It  was  located  on 
its  own  land  so  far  removed  from  the  highway  as  not  to  interfere  with 
the  convenience  and  safety  of  the  pubUc  travel,  and  it  was  not  a  trap 
set  for  the  pmpose  of  injuring  trespassers.  Aldrich  v.  Wright,  53 
N.  H.  404.  Under  these  circumstances,  the  defendants  owed  no  duty 
to  the  plaintiff;  and  there  can  be  no  negligence  or  breach  of  duty 
where  there  is  no  act  or  service  which  the  party  is  bound  to  perform 
or  fulfil.  A  landowner  is  not  required  to  take  active  measures  to  in- 
sure the  safety  of  intruders,  nor  is  he  liable  for  an  injury  resulting 
from  the  lawful  use  of  his  premises  to  one  entering  upon  them  without 
right.  A  trespasser  ordinarily  assumes  all  risk  of  danger  from  the 
condition  of  the  premises;  and  to  recover  for  an  injiuy  happening  to 
him  he  must  show  that  it  was  wantonly  inflicted,  or  that  the  owner 
or  occupant,  being  present  and  acting,  might  have  prevented  the  in- 
jiuy by  the  exercise  of  reasonable  care  after  discovering  the  danger. 
Clark  V,  Manchester,  62  N.  H.  577;  State  v.  Raikoad,  52  N.  H.  528; 
Sweeny  v.  Raikoad,  10  Allen,  368;  Morrissey  v.  Railroad,  126  Mass. 
377;  Severy  v.  Nickerson,  120  Mass.  306;  Morgan  v.  Hallowell,  57 
Me.  375;  Pierce  v.  Whitcomb,  48  Vt.  127;  McAlpin  v.  Powell,  70 
N.  Y.  126;  St.  L.,  V.  &  T.  H.  R.  R.  Co.  v.  Bell,  81  111.  76;  Gavin 
y.  Chicago,  97  111.  66;  Wood  v.  School  District,  44  Iowa,  27;  Gram- 
Uch  V.  Wurst,  86  Pa.  St.  74;  Cauley  v.  P.  C,  &  St.  Louis  Railway 
Co.,  95  Pa.  St.  398;  Gillespie  v.  McGowan,  100  Pa.  St.  144;  Man- 
gan  V.  Atterton,  L.  R.  1  Ex.  239.  The  maxim  that  a  man  must  use 
his  property  so  as  not  to  inconunode  his  neighbor,  only  applies  to 
neighbors  who  do  not  interfere  with  it  or  enter  upon  it.  Knight  v. 
Abert,  6  Pa.  St.  472.  To  hold  the  owner  liable  for  consequential 
damages  happening  to  trespassers  from  the  lawful  and  beneficial  use 
of  his  own  land  would  be  an  unreasonable  restriction  of  his  enjoy- 
ment of  it. 

We  are  not  prepared  to  adopt  the  doctrine  of  Railroad  Co.  v.  Stout, 
17  Wall.  657,  and  cases  following  it,  that  the  owner  of  machinery  or 
other  property  attractive  to  children  is  liable  for  injuries  happening  to 
children  wrongfully  interfering  with  it  on  his  own  premises.  The 
owner  is  not  an  insurer  of  the  safety  of  infant  trespassers.  One  hav- 
ing in  his  possession  agricultural  or  mechanical  tools  is  not  responsible 
for  injuries  caused  to  trespassers  by  careless  handling,  nor  is  the 
owner  of  a  fruit-tree  bound  to  cut  it  down  or  enclose  it,  or  to  exercise 
care  in  securing  the  staple  and  lock  with  which  his  ladder  is  fastened, 
for  the  protection  of  trespassing  boys  who  may  be  attracted  by  the 


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SECT.  VI.]     COOKE  V.  MIDLAND  GREAT  WESTERN  RY.  173 

fruit.  Neither  is  the  owner  or  occupant  of  premises  upon  which  there 
is  a  natural  or  artificial  pond,  or  a  blueberry  pasture,  legally  required 
to  exercise  care  in  securing  his  gates  and  bars  to  guard  against  acci- 
dents to  straying  and  trespassing  children.  The  owner  is  under  no 
duty  to  a  mere  trespasser  to  keep  his  premises  safe;  and  the  fact  that 
the  trespasser  is  an  infant  cannot  have  the  effect  to  raise  a  duty  where 
none  otherwise  exists.  "  The  supposed  duty  has  regard  to  the  public 
at  large,  and  cannot  well  exist  as  to  one  portion  of  the  public  and  not 
to  another,  imder  the  same  circumstances.  In  this  respect  children, 
women,  and  men  are  upon  the  same  footing.  In  cases  where  certain 
duties  exist,  infants  may  require  greater  care  than  adults,  or  a  differ- 
ent kind  of  care;  but  precautionary  measures  having  for  their  object 
the  protection  of  the  pubUc  must  as  a  rule  have  reference  to  ^classes 
..^ike."    Nolan  v.  N.  Y.  N.  H.  &  H.  Raihoad  Co.,  53  Conn.  461. 

There  being  no  evidence  to  charge  the  defendants  with  negUgence, 
the  motion  for  a  nonsuit  should  have  been  granted. 

Exceptions  stistained.^ 


COOKE  V.  MIDLAND  GREAT  WESTERN  RAILWAY 
OF  IRELAND 

In  the  House  of  Lobds,  Mabch  1, 1909. 
Reported  in  [1909]  Appeal  Caeee,  229. 

The  appellant  by  his  father  brought  an  action  against  the  respond- 
ents for  an  injury  sustained  on  the  company's  land  in  Meath  under 
the  circumstances  stated  in  the  headnote,  the  details  of  which  are 
fully  discussed  in  the  judgments  in  this  House.  At  the  trial  before 
Lord  O'Brien,  C.  J.,  the  jiuy  found  a  verdict  for  the  plaintiff  for  £550, 
and  judgment  was  entered  accordingly.  The  jury  found  that  the 
fence  was  in  a  defective  condition  through  the  negligence  of  the  de- 
fendants; that  the  plaintiff  was  allured  through  the  hedge  and  up  to 
the  turn-table  by  the  iiegligence  of  the  defendants;  and  that  it  was 
by  reason  of  the  defendants'  negligence  and  as  the  effective  cause  of 
it  that  the  misfortune  occurred.  That  judgment  was  aflSrmed  by  the 
King's  Bench  Division  in  Ireland  (PsJles,  C.  B.,  and  Johnson,  J., 
Kenny,  J.,  dissenting)  and  was  afterwards  set  aside  by  the  Court  of 
Appeal  in  Ireland  (Sir  S.  Walker,  L.  C,  FitzGibbon  and  Holmes, 
L.JJ.).    Hence  this  appeal  by  the  plaintiff.' 

1  Wilmot  V.  McPadden,  79  Conn.  367  (building  in  course  of  construction); 
Daniels  v.  New  York  R.  Co.,  164  Mass.  349;  Ryan  v,  Towar,  128  Mich.  463 
(water  wheel);  Peninsular  Trust  Co.  v.  City.  131  Mich.  571  (reservoir);  Busies  v. 
Boston  R.  Co.,  71  N.  H.  279  (torpedo  on  rignt  of  way) :  Delaware  R.  Co.  v.  Reich, 
61  N.  J.  Law,  635:  Walsh  w.  Fitchbura;  R.  Co.,  145  N.  Y.  301;  Raikoad  Co.  t;. 
Harvey,  77  Ohio  St.  235;  Paolino  v.  McKendall,  24  R.  I.  432  (unguarded  fire); 
Uthennohlen  v.  Bogg^s  Run  Co.,  50  W.  Va.  457  Accord, 

*  The  arguments  of  counsel  and  the  concurring  opinions  of  Lords  Atkinson, 
Collins,  and  Lorebum  are  omitted. 


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174  COOKE  V.  MIDLAND  GREAT  WESTERN  RY.     [CHAP.  H. 

Lord  Macnaghten.  My  Lords,  the  only  question  before  your 
Lordships  is  this:  Was  there  evidence  of  negligence  on  the  part  of  the 
company  fit  to  be  submitted  to  the  jury  ?  If  there  was,  the  verdict 
must  stand,  although  your  Lordships  might  have  come  to  a  different 
conclusion  on  the  same  materials. 

I  cannot  help  thinking  that  the  issue  has  been  somewhat  obscured 
by  the  extravagant  importance  attached  to  the  gap  in  the  hedge,  both 
in  the  arguments  of  counsel  and  in  the  judgments  of  some  of  the 
learned  judges  who  have  had  the  case  under  consideration.  That 
there  was  a  gap  there,  that  it  was  a  good  broad  gap  some  three  feet 
wide,  is,  I  think,  proved  beyond  question.  But  of  all  the  circum- 
stances attending  the  case  it  seems  to  me  that  this  gap  taken  by  itself 
is  the  least  important.  I  have  some  difficulty  in  believing  that  a 
gap  in  a  roadside  fence  is  a  strange  and  imusual  spectacle  in  any  part 
of  beland.  But  however  that  may  be,  I  quite  agree  that  the  in- 
sufficiency of  the  fence,  though  the  company  were  bound  by  Act  of 
Parliament  to  maintain  it,  cannot  be  regarded  as  the  effective  cause 
of  the  accident. 

The  question  for  the  consideration  of  the  jiuy  may,  I  think,  be 
stated  thus:  Would  not  a  private  individual  of  conunon  sense  and 
ordinary  intelligence,  placed  in  the  position  in  which  the  company 
were  placed,  and  possessing  the  knowledge  which  must  be  attributed 
to  them,  have  seen  that  there  was  a  likelihood  of  some  injury  happen- 
ing to  children  resorting  to  the  place  and  playing  with  the  tiun-table, 
and  would  he  not  have  thought  it  his  plain  duty  either  to  put  a  stop 
to  the  practice  altogether,  or  at  least  to  take  ordinary  precautions  to 
prevent  such  an  accident  as  that  which  occurred  ? 

This,  I  think,  was  substantially  the  question  which  the  Lord  Chief 
Justice  presented  to  the  jury.  It  seems  to  me  to  be  in  accordance 
with  the  view  of  the  Court  of  Queen's  Bench  in  Ljmch  v.  Nurdin, 
1  Q.  B.  29,  and  the  opinion  expressed  by  Homer  and  Stirling,  L.JJ., 
in  McDowaU  v.  Great  Western  Ry.  Co.,  [1903]  2  K.  B.  331. 

The  Lord  Chancellor  of  Ireland  puts  Lynch  v,  Nurdin,  1  Q.  B.  29, 
aside.  He  holds  that  it  bears  no  analogy  to  the  present  case,  because 
the  thing  that  did  the  mischief  there  was  a  ''  cart  in  the  public  street 
—  a  nuisance.*'  But  no  question  of  nuisance  was  considered  in 
Lynch  v.  Nurdin.  That  point  was  not  suggested.  The  ground  of 
the  decision  is  a  very  simple  proposition.  "  If,"  says  Lord  Denman, 
^'  I  am  guilty  of  ne^gence  in  leaving  anything  dangerous  in  a  place 
where  I  know  it  to  be  extremely  probable  that  some  other  person  will 
imjustifiably  set  it  in  motion  to  the  injury  of  a  third,  and  if  that 
injiuy  should  be  so  brought  about,  I  presume  that  the  sufferer  might 
have  redress  by  action  against  both  or  either  of  the  two,  but  unques- 
tionably against  the  first."  If  that  proposition  be  sound,  surely  the 
character  of  the  place,  though,  of  course,  an  element  proper  to  be 
considered,  is  not  a  matter  of  vital  importance.    It  cannot  make  very 


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SECT.  VI.]        COOKE  V.  MIDLAND  GREAT  WESTERN  RY.  175 

much  (Merence  whether  the  place  is  dedicated  to  the  use  of  the  pub- 
lic or  left  open  by  a  careless  owner  to  the  invasion  of  children  who 
make  it  their  playground. 

I  think  the  jiuy  were  entitled  and  boimd  to  take  into  consideration 
all  the  circumstances  of  the  case  —  the  mode  in  which  the  turn-table 
was  constructed;  its  close  proximity  to  the  wall  by  which  the  plain- 
tiff's leg  was  crushed;  the  way  in  which  it  was  left,  unfenced,  un- 
locked, and  unfastened;  the  history  of  this  bit  of  ground  and  its 
position,  shut  off  as  it  was  by  an  embankment  from  the  view  of  the 
company's  servants  at  the  station,  and  Ijring  half  derelict.  After  the 
construction  of  the  embankment  it  served  no  purpose  in  connection 
with  the  company's  undertaking,  except  that  at  one  time  a  comer  of  it 
was  used  as  a  receptacle  for  some  timber  belonging  to  the  company, 
and  afterwards  as  a  site  for  this  turn-table.  In  other  respects,  and 
apart  from  these  uses,  it  seems  to  have  been  devoted  or  abandoned  to 
the  sustenance  of  the  railway  inspector's  goat  and  the  diversion  of  the 
youth  of  Navan.  It  is  proved  that  in  spite  of  a  notice  board  idly  for- 
bidding trespass  it  was  a  place  of  habitual  resort  for  children,  and 
that  children  were  frequently  playing  with  the  timber,  and  after- 
wards with  the  turn-table.  At  the  date  of  the  trial,  twelve  months 
after  the  accident,  a  beaten  path  leading  from  the  gap  bore  witness 
both  to  the  numbers  that  flocked  to  the  spot  and  to  the  special  attrac- 
tion that  drew  children  to  it.  It  is  remarkable  that  not  a  single  word 
of  cross-examination  as  to  either  of  these  points  was  addressed  to  the 
principal  witnesses  for  the  plaintiff,  Tully,  the  herd,  and  Gertrude 
CJooke,  the  plaintiff's  sister;  nor  was  any  explanation  or  evidence 
offered  on  the  part  of  the  company.  Now  the  company  knew,  or 
must  be  deemed  to  have  known,  all  the  circumstances  of  the  case 
and  what  was  going  on.  Yet  no  precaution  was  taken  to  prevent  an 
accident  of  a  sort  that  might  well  have  been  foreseen  and  very  easily 
prevented.  They  did  not  close  up  the  gap  until  after  the  accident. 
Then  it  was  the  first  thing  thought  of.  But  it  was  too  late.  They 
did  not  summon  any  of  the  children  who  played  there,  or  bring  them 
before  the  magistrates,  as  a  warning  to  trespassers  and  a  proof  that 
they  were  really  in  earnest  in  desiring  to  stop  an  objectionable  prac- 
tice which  had  gone  on  so  long  and  so  openly.  They  did  not  have 
their  turn-table  locked  automatically  in  the  way  in  which  Mr.  Barnes, 
C.  E.,  whose  evidence  is  uncontradicted,  says  it  is  usual  to  lock  such 
machines.  The  table,  it  seems,  was  not  even  fastened.  There  was  a 
bolt;  but  if  Cooke,  the  father  of  the  plaintiff,  is  to  be  beUeved,  the 
bolt  was  rusty  and  unworkable.  The  jury  were  not  bound  to  believe 
Fowler,  a  ganger  in  the  service  of  the  company,  in  preference  to 
C!ooke.  Fowler,  aft^r  some  incautious  admissions  which  the  jury 
probably  accepted  as  true,  turned  round  and  showed  himself,  as  the 
Chief  Justice  sajrs,  to  be  hostile  to  the  plaintiff.  He  prevaricated  to 
such  an  extent  that  the  jury  were  justified  in  disregarding  every- 


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176  COOKE  V.  MIDLAND  GREAT  WESTERN  RY.      [CHAP.  U. 

thing  said  by  him  with  the  view  of  shielding  his  employers  or  saving 
himself  from  blame,  whether  it  came  out  of  his  own  head,  as  the 
nonsense  he  talked  about  rat-holes,  or  was  suggested  by  counsel,  as 
the  expression  of  "  hunting  "  children  ofif  the  ground. 

It  seems  to  me  that  the  Chief  Justice  would  have  been  wrong  if  he 
had  withdrawn  the  case  from  the  jury.  I  think  the  jury  were  en- 
titled, in  view  of  all  the  circumstances,  on  the  evidence  before  them, 
uncontradicted  as  it  was,  to  find  that  the  company  were  guilty  of 
negligence.  I  am  therefore  of  opinion  that  the  finding  of  the  jury 
should  be  upheld  and  the  judgment  under  appeal  reversed,  with 
pauper  costs  here  and  costs  below;  and  I  move  yoiur  Lordships 
accordingly. 

I  will  only  add  that  I  do  not  think  that  this  verdict  will  be  followed 
by  the  disastrous  consequences  to  railway  companies  and  landowners 
which  the  Lord  Chancellor  of  L^land  seems  to  apprehend.  Persons 
may  not  think  it  worth  their  while  to  take  ordinary  care  of  their  own 
property,  and  may  not  be  compellable  to  do  so;  but  it  does  not  seem 
unreasonable  to  hold  that,  if  they  allow  their  property  to  be  open  to 
all  comers,  infants  as  well  as  children  of  maturer  age,  and  place  upon 
it  a  machine  attractive  to  children  and  dangerous  as  a  plaything,  they 
may  be  responsible  in  damages  to  those  who  resort  to  it  with  their 
tacit  permission,  and  who  are  unable,  in  consequence  of  their  tender 
age,  to  take  care  of  themselves.' 

^  See  Latham  v.  Johnson,  [1913]  1  K.  6. 398.  In  that  case  Hamilton,  L.  J.,  said 
(pp.  415-416) :  "  Two  other  terms  must  be  alluded  to  —  a  *  trap  '  and  '  attrac- 
tion '  or  '  allurement.'  A  trap  is  a  figure  of  speech,  not  a  formula.  It  involves  the 
idea  of  concealment  and  surprise,  of  an  appearance  of  safety  imder  circumstances 
cloaking  a  reality  of  danger.  Owners  and  occupiers  alike  expose  licensees  and 
visitors  to  traps  on  their  premises  at  their  peril,  but  a  trap  ia  a  relative  term.  In 
the  case  of  an  infant,  there  are  moral  as  well  as  physical  traps.  There  may  ac- 
cordingly be  a  duty  towards  infants  not  merely  not  to  dig  pitfalls  for  them,  but 
not  to  lead  them  into  temptation.  '  AUurements/  too,  is  a  vague  word.  It  may 
refer  only  to  thei  circumstances  under  which  the  injured  child  has  entered  the  close. 
Here  it  is  hard  to.  see  how  infantile  temptations  can  give  ri^ts,  however  much 
they  may  excuse  peccadilloes.  A  child  will  be  a  trespasser  still,  if  he  goes  on  pri- 
vate ground  without  leave  or  right,  however  natural  it  may  have  been  for  him  to 
do  so.  On  the  other  hand,  the  allurement  may  arise  after  he  has  entered  with 
leave  or  as  of  ri^^t.  Then  the  presence  in  a  frequented  place  of  some  object  of 
attraction,  tempting  him  to  meddle  where  he  ought  to  abstain,  may  well  constitute 
a  trap,  and  in  the  case  of  a  child  too  young  to  be  capable  of  contributory  negligence 
it  may  impose  full  liability  on  the  owner  or  occupier,  if  he  ought,  as  a  reasonable 
man,  to  have  anticipated  the  presence  of  the  cnild  and  the  attractiveness  and 
peril  of  the  object." 

"  Finally,  what  objects  which  attract  infants  to  their  hurt  are  traps  even  to 
them  ?  Not  all  objects  with  which  children  hurt  themselves  simpliciter.  A  child 
can  get  into  mischief  and  hurt  itself  with  anything  if  it  is  young  enough.  In  some 
cases  the  answer  may  rest  with  the  jury,  but  it  must  be  matter  of  law  to  say 
whether  a  given  object  can  be  a  trap  m  the  double  sense  of  being  fascinating  and 
fatal.  No  strict  answer  has  been,  or  perhaps  ever  will  be,  dven  to  the  question, 
but  I  am  convinced  that  a  heap  of  pavmg  stone  in  broad  daylight  in  a  private  close 
cannot  so  combine  the  properties  of  temptation  and  retribution  as  to  be  properly 
called  a  trap." 


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SECT.  VI.]  BOLCH  V.  SMITH  177 

BOLCH  V.  SMITH 

In  the  Exchequer,  January  30, 1862. 

Reported  in  7  HurlsUme  &  Normarif  736. 

Action  to  recover  for  damage  occurring  as  hereinafter  stated. 
Pleas:  first,  not  guilty;  second,  various  special  pleas.   Issues  thereon.^ 

At  the  trial,  before  Channell,  B.,  at  the  last  Hampshire  Summer 
Assizes,  the  following  facts  appeared:  The  plaintiff  was  a  millwright 
employed  in  the  Government  dock-yard  at  Portsmouth.  The  defend- 
ant was  a  contractor,  and  had  been  engaged  for  some  time  in  enlarging 
one  of  the  docks.  The  men  employed  in  the  dock-yard  were  not  al- 
lowed to  leave  it  during  the  day,  and  water-closets  had  been  built  for 
their  use.  For  the  piuTX)se  of  going  to  these  water-closets,  they  had 
permission  to  use  certain  paths  which  crossed  the  dock-yard.  The  de- 
fendant had  been  permitted  to  erect  a  mortar-mill  for  the  purpose  of 
his  work,  and  he  built  an  engine-house  on  one  side  of  one  of  these 
paths  and  the  mortar-mill  on  the  other  side  of  the  path.  A  revolving 
shaft  which  connected  the  engine  with  the  mill  was  placed  across  the 
path  about  six  inches  above  the  level  of  the  ground.  This  shaft  was 
partly  covered  with  a  few  planks  not  joined  together,  and  forming 
an  incline  upwards  from  the  ground,  so  that  a  barrow  could  be  wheeled 
over  it.  The  shaft  had  been  on  that  spot  covered  or  uncovered  for 
five  years.  The  plaintiff  had  gone  along  this  path  to  one  of  the  water- 
closets,  and  whilst  returning  he  accidentally  stumbled  when  near  the 
shaft,  which  was  in  rapid  motion,  and  on  reaching  out  his  hand  to 
save  himself  his  left  arm  was  caught  by  the  shaft,  and  so  much  lacer- 
ated that  it  was  necessary  to  amputate  it.  There  were  two  other  paths 
by  which  the  plaintiff  might  have  reached  the  water-closet;  but  the 
one  he  used  was  the  shortest  and  most  convenient. 

In  the  course  of  the  defendant's  case  it  appeared  that  the  shaft  had 
been  fenced  to  some  extent  but  not  suflSciently. 

At  the  close  of  the  defendant's  case,  the  learned  judge  proposed  to 
leave  it  to  the  jury  to  assess  the  damages,  supposing  the  plaintiff  had 
a  right  of  action,  and  then  to  nonsuit  the  plaintiff,  reserving  leave  for 
him  to  move  to  set  aside  the  nonsuit,  and  enter  the  verdict  for  the 
amoimt  assessed  by  the  jiuy.  The  plaintiff's  counsel  declined  to  ac- 
cede to  this  course;  whereupon  the  learned  judge  left  it  to  the  jury  to 
say:  first,  whether  the  plaintiff  was  lawfully  using  the  way  in  ques- 
tion on  the  day  of  the  accident;  secondly,  whether  the  defendant  was 
guilty  of  negligence  in  leaving  the  shaft  in  the  state  it  was  on  that 
day.  The  jiuy  answered  both  questions  in  the  aflSrmative,  and  they 
added  that  they  found  "  that  the  shaft  was  not  suflSciently  fenced;  " 
and  they  assessed  the  damages  at  230Z.  A  verdict  having  been  entered 
for  the  plaintiff  for  that  amount, 

^  Statement  abridged.    Arguments  omitted,  and  parts  of  opinions. 


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178  BOLCH  V.  SMITH  [CHAP.  U. 

Coleridge,  in  last  Michaelmas  Term,  obtained  a  rule  nisi  for  a  new 
trial,  on  the  ground  that  the  learned  judge  misdirected  the  jiuy  in 
not  telling  them  that  there  was  no  obligation  on  the  part  of  the  de- 
fandant  to  fence  the  shaft;  and  also  that  the  verdict  was  against  the 
evidence. 

Channell,  B.  I  am  of  opinion  that  the  rule  must  be  absolute  for 
a  new  trial.    [Remainder  of  opinion  omitted.] 

Martin,  B.  I  am  of  the  same  opinion.  TTie  real  objection  to  this 
action  is  that  the  plaintiff  has  failed  to  establish  that  there  was  any 
obligation  or  duty  on  the  part  of  the  defendant  to  have  this  path  in 
any  other  condition  than  it  was  at  the  time  of  the  accident.  That 
should  have  been  established  in  some  way.  If  the  plaintiff  could  have 
shown  any  such  obligation  on  the  part  of  the  defendant  he  would  have 
made  out  a  case,  but  that  was  a  condition  precedent,  and  the  plaintiff 
has  wholly  failed  to  do  so.  The  defendant  had  a  right  to  erect  the 
machinery,  to  erect  it  in  the  place  he  did,  and  to  work  it  in  the  manner 
he  was  doing. 

Then  what  is  the  true  condition  of  the  plaintiff  ?  It  is  said  that  he 
had  a  right  to  go  along  the  path  across  which  the  machinery  was 
erected,  for  he  was  a  workman  employed  in  the  dock-yard,  and  had 
Uberty  to  use  the  water-closet.  But  that  is  a  fallacious  argument.  It 
is  true  the  plaintiff  had  permission  to  use  the  path.  Permission  in- 
volves leave  and  license,  but  it  gives  no  right.  If  I  avail  myself  of 
permission  to  cross  a  man's  land,  I  do  so  by  virtue  of  a  license,  not  of 
a  right.  It  is  an  abuse  of  language  to  call  it  a  right:  it  is  an  excuse 
or  license,  so  that  the  party  cannot  be  treated  as  a  trespasser.  Inas- 
much as  there  was  another  way  by  which  the  plaintiff  might  have 
gone,  but  voluntarily  chose  the  one  which  was  out  of  order,  I  think 
he  has  no  right  of  action  against  the  defendant,  and  that  he  ought  to 
have  been  nonsuited  at  the  trial. 

Wilde,  B.  I  am  of  the  same  opinion.  It  is  of  importance  in  all 
these  cases  that  the  facts  upon  which  the  decisions  are  based  should 
be  made  plain.  The  plaintiff  was  one  of  a  number  of  persons  who  ob- 
tained leave  and  license  from  the  dock-yard  authorities  to  cross  the 
3rard  from  one  place  to  another.  The  defendant  had  permission  from 
the  same  authorities  to  put  up  certain  machinery  in  the  yard.  The 
plaintiff  while  walking  along  the  usual  track  fell  down,  not  by  reason 
of  any  obstruction,  but  in  consequence  of  stumbling,  and  in  trying  to 
save  himself,  his  arm  came  in  contact  with  a  revolving  shaft  and  was 
lacerated. 

I  will  decide  the  case  as  if  it  were  a  question  between  the  plaintiff 
and  the  owners  of  the  jrard,  because  if  they  are  not  responsible  for 
putting  up  the  shaft,  a  fortiori  the  defendant  is  not.  Then,  was  there 
any  obligation  on  the  owners  of  the  yard  not  to  put  up  machinery  that 
might  be  dangerous  to  persons  crossing  it  ?  None  of  the  facts  tend  to 
show  that  any  such  obligation  existed.    If  what  was  put  up  was  an 


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SECT.  VI.]  GAUTRBT  V.  EGEBTON  179 

obstruction  to  any  person  who  used  that  way,  the  only  consequence 
would  be  that  he  would  have  to  go  another  way.  That  being  so,  it 
appears  to  me  that  this  action  cannot  lie,  because  I  agree  that  it  is 
founded  upon  a  duty,  and  none  exists. 

That  disposes  of  the  case;  but  I  will  add  that  I  do  not  mean  to  say 
that  if  the  defendant  had  made  a  hole  in  the  3rard,  and  had  covered  it 
in  a  way  that  was  insuflScient,  but  which  appeared  to  be  suflScient,  he 
would  not  have  been  liable.  But  here  there  was  nothing  of  that  char- 
acter. The  danger  was  open  and  visible.  There  was  nothing  which 
could  be  called  a  "  trap.'* 

Pollock,  C.  B.,  concurred.  Rule  abaoliUefor  a  new  tial.^ 


GAUTRET  V.  EGERTON 

In  the  Common  Pleas,  February  11, 1867. 

Reported  in  Law  Reporte,  2  Common  Pleaa,  371. 

The  declaration  in  the  first  of  these  actions  stated  that  the  defend- 
ants were  possessed  of  a  close  of  land,  and  of  a  certain  canal  and  cut- 
tings intersecting  the  same,  and  of  certain  bridges  across  the  said  canal 
and  cuttings,  conmiunicating  with  and  leading  to  certain  docks  of  the 
defendants,  which  said  land  and  bridges  had  been  and  were  from  time 
to  time  used  with  the  consent  and  permission  of  the  defendants  by  per- 
sons proceeding  towards  and  coming  from  the  said  docks;  that  the 
defendants,  well  knowing  the  premises,  wrongfully,  negligently,  and 
improperly  kept  and  maintained  the  said  land,  canal,  cuttings,  and 
bridges,  and  suffered  them  to  continue  and  be  in  so  improper  a  state 
and  condition  as  to  render  them  dangerous  and  imsaf e  for  persons  law- 
fully passing  along  and  over  the  said  land  and  bridges  towards  the 
said  docks,  and  using  the  same  as  aforesaid;  and  that  Leon  Gautret, 
whilst  he  was  lawfully  in  and  passing  and  walking  along  the  said  close 
and  over  the  said  bridge,  and  using  the  same  in  the  manner  and  for 
the  purpose  aforesaid,  by  and  through  the  said  wrongful,  negligent, 
and  improper  conduct  of  the  defendants  as  aforesaid,  fell  into  one  of 
the  said  cuttings  of  the  defendants,  intersecting  the  said  close  as  afore- 
said, and  thereby  lost  his  life  within  twelve  calendar  months  next 
before  the  suit:  and  the  plaintiff,  as  administratrix,  for  the  benefit 
of  herself,  the  widow  of  the  said  Leon  Gautret,  and  A.  Gautret,  Ac, 
according  to  the  statute  in  such  case  made  and  provided,  claimed 
2,500Z. 

»  See  also  Cole  v,  WillcuU,  214  Mus.  463;  Habina  v.  Twin  City  Electric  Co., 
150  Mich.  41:  Cheeley  v.  Rocheford,  4  Neb.  UnofiF.  768,  777. 

For  examples  of  "  traps,"  see  Loweiy  v.  Walker,  (1911)  A.  C.  10;  Rollestone  v. 
Caasirer,  3  Ga.  App.  161 ;  Foren  t^.  Rodick,  90  Me.  276;  Hill  v.  President  and  Trus- 
tees, 61  Or.  190;  Grant  v.  Hass,  31  Tex.  Civ.  App.  688;  Brinilson  v,  Chicago  R. 
Co.,  144  Wis.  614. 


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180  GAUTREt  V.  EGERTON  [CHAP.  H. 

The  defendants  demurred  to  the  declaration,  on  the  ground  that "  it 
does  not  appear  that  there  was  any  legal  duty  or  obUgation  on  the  part 
of  the  defendants  to  take  means  for  prevaiting  the  said  land,  &c., 
being  dangerous  and  imsafe."    Joinder. 

Crompton  {Mellish,  Q.  C,  with  him),  in  support  of  the  demurrer. 
—  To  maintain  this  action,  the  declarations  ought  to  show  a  duty  in 
the  defendants  to  keep  the  canal,  cuttings,  and  bridges  in  a  safe  con- 
dition, and  also  that  some  invitation  had  been  held  out  to  the  deceased 
to  come  there,  and  that  the  thing  complained  of  constituted  a  sort  of 
trap.  Seymour  v.  Maddox,  16  Q.  B.  326  (E.  C.  L.  R.  vol.  71),  19 
L.  J.  Q.  B.  525;  Corby  v.  Hill,  4  C.  B.  n.  s.  556  (E.  C.  L.  R.  vol.  93), 
27  L.  J.  C.  P.  318.  The  declaration  is  entirely  wanting  in  all  these 
particulars.  It  is  not  enough  to  show  that  the  defendants  were  aware 
that  the  place  in  question  was  in  an  imsafe  condition,  and  that  the 
public  were  in  the  habit  of  passing  along  it.  Hounsell  v.  Smyth, 
7  C.  B.  N.  8.  731,  29  L.  J.  C.  P.  203. 

[WiLi^ES,  J.  The  declaration  does  not  even  state  that  the  deceased 
persons  were  unacquainted  with  the  state  of  the  place.] 

Herschelly  for  the  plaintiff  Gautret.  —  The  question  raised  upon 
this  declaration  is,  whether  there  is  any  duty  on  the  part  of  the  defend- 
ants toward  persons  using  their  land  as  the  deceased  here  did.  That 
may  be  negligence  in  the  case  of  a  licensee,  which  would  not  be  negli- 
gence as  against  a  mere  trespasser:  and,  if  there  can  be  any  case  in 
which  the  law  would  imply  a  duty,  it  is  sufficiently  alleged  here. 

[WiLLES,  J.  It  may  be  the  duty  of  the  defendants  to  abstain  from 
doing  any  act  which  may  be  dangerous  to  persons  coming  upon  the 
land  by  their  invitation  or  permission,  as  in  Indermaur  v.  Dames, 
Law  Rep.  1  C.  P.  274.^  So,  if  I  employ  one  to  carry  an  article  which 
is  of  a  peculiarly  dangerous  nature,  without  cautioning  him,  I  may  be 
responsible  for  any  injury  he  sustains  through  the  absence  of  such 
caution.  That  was  the  case  of  Farrant  v.  Barnes,  11  C.  B.  n.  s.  553, 
31  L.  J.  C.  P.  137.  But,  what  duty  does  the  law  impose  upon  these 
defendants  to  keep  their  bridges  in  repair  ?  If  I  dedicate  a  way  to 
the  pubUc  which  is  full  of  ruts  and  holes,  the  public  must  take  it  as 
it  is.  If  I  dig  a  pit  in  it,  I  may  be  liable  for  the  consequences:  but, 
if  I  do  nothing,  I  am  not.] 

It  was  not  necessary  to  specify  the  nature  of  the  negUgence  which  is 
charged:  it  was  enough  to  allege  generally  a  duty  and  a  breach  of  it. 
Knowing  the  bridge  to  be  unsafe,  it  was  the  duty  of  the  defendants 
not  to  permit  the  public  to  use  it.  In  Bolch  v.  Smith,  7  H.  &  N.  736, 
31  L.  J.  Ex.  201,  the  defect  in  the  fencing  of  the  shaft  was  apparent: 
but  the  judgments  of  Channell  and  Wilde,  BB.,  seem  to  concede  that, 
if  there  had  been  a  concealed  defect,  the  action  would  have  been  main- 
tainable.  That  shows  that  there  is  some  duty  in  such  a  case  as  this. 

^  Affirmed  in  the  Exchequer  Chamber,  L.  R.  2  C.  P.  311. 


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SECT.  VI.]  GAUTRET  V.  EGERTON  181 

Potter f  for  the  plaintiff  Jones,  submitted  that  the  implied  request  on 
the  part  of  the  defendants  to  persons  having  occasion  to  go  to  the 
docks  to  pass  by  the  way  in  question,  raised  a  duty  in  them  to  keep  it 
in  a  safe  condition. 

WiLLES,  J.    I  am  of  opinion  that  our  judgment  must  be  for  the  de- 
fendants in  each  of  these  cases.   The  argument  urged  on  behalf  of  the 
plaintiffs,  when  analyzed,  amounts  to  this,  that  we  ought  to  construe 
the  general  words  of  the  declaration  as  describing  whatever  sort  of 
negUgence  the  plaintiffs  can  prove  at  the  trial.    The  authorities,  how- 
ever, and  reason  and  good  sense,  are  the  other  way.    The  plaintiff 
must,  in  his  declaration,  give  the  defendant  notice  of  what  his  com- 
plaint is.    He  must  recover  secundum  allegata  et  probata.    What  is  it 
that  a  declaration  of  this  sort  should  state  in  order  to  fulfil  those  con- 
ditions ?   It  ought  to  state  the  facts  upon  which  the  supposed  duty  is 
founded,  and  the  duty  to  the  plaintiff  with  the  breach  of  which  the 
defendant  is  charged.    It  is  not  enough  to  show  that  the  defendant 
has  been  guilty  of  negligence,  without  showing  in  what  respect  he  was 
negligent,  and  how  he  became  bound  to  use  care  to  prevent  injury  to 
others.   All  that  these  declarations  allege  is,  that  the  defendants  were 
possessed  of  land,  and  of  a  canal  and  cuttings  intersecting  the  same, 
and  of  certain  bridges  across  the  canal  and  cuttings  commimicating 
with  and  leading  to  certain  docks  of  theirs;  that  they  allowed  persons 
going  to  and  from  the  docks,  whether  upon  the  business  or  for  the 
profit  of  the  defendants  or  not,  to  pass  over  the  land;  and  that  the 
deceased  persons,  in  pm^uance  of  and  using  that  permission,  fell  into 
one  of  the  cuttings,  and  so  met  their  deaths.    The  consequences  of 
these  accidents  are  sought  to  be  visited  upon  these  defendants,  because 
they  have  allowed  persons  to  go  over  their  land,  not  alleging  it  to 
have  been  upon  the  business  or  for  the  benefit  of  the  defendants,  or 
as  the  servants  or  agents  of  the  defendants;   nor  alleging  that  the 
defendants  have  been  guilty  of  any  wrongful  act,  such  as  digging  a 
trench  on  the  land,  or  misrepresenting  its  condition,  or  anything 
equivalent  to  laying  a  trap  for  the  unwary  passengers;   but  simply 
because  they  permitted  these  persons  to  use  a  way  with  the  condi- 
tion of  which,  for  anything  that  appears,  those  who  suffered  the  in- 
jury were  perfectly  well  acquainted.    That  is  the  whole  sum  and 
substance  of  these  declarations.    If  the  docks  to  which  the  way  in 
question  led  were  public  docks,  the  way  would  be  a  public  way,  and 
the  township  or  parish  would  be  bound  to  repair  it,  and  no  such  lia- 
bility as  this  could  be  cast  upon  the  defendants  merely  by  reason  of 
the  soil  of  the  way  being  theirs.    That  is  so  not  only  in  reason  but 
also  upon  authority.    It  was  so  held  in  Robbins  v.  Jones,  15  C.  B.  n.  s. 
221,  33  L.  J.  C.  P.  1,  where  a  way  having  been  for  a  number  of  years 
dedicated  to  the  public,  we  held  that  the  owner  of  the  adjoining  house 
was  not  responsible  for  death  resulting  to  a  person  from  the  giving 
way  of  the  pavement,  partly  in  consequence  of  its  being  over-weighted 


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182  GAUTRET  V.  EGERTON  [CHAP.  II. 

by  a  number  of  persons  crowding  upon  it,  and  partly  from  its  having 
been  weakened  by  user.  Assuming  that  these  were  private  docks,  the 
private  property  of  the  defendants,  and  that  they  permitted  persons 
going  to  or  coming  from  the  docks,  whether  for  their  own  benefit  or 
that  of  the  defendants,  to  use  the  way,  the  dedication  of  a  permission 
to  use  the  way  must  be  taken  to  be  in  the  character  of  a  gift.  The 
principle  of  law  as  to  gifts  is,  that  the  giver  is  not  responsible  for  dam- 
age resulting  from  the  insecurity  of  the  thing,  unless  he  knew  its  evil 
character  at  the  time,  and  omitted  to  caution  the  donee.  There  must 
be  something  Uke  fraud  on  the  part  of  the  giver  before  he  can  be  made 
answerable.  It  is  quite  consistent  with  the  declarations  in  these  cases 
that  this  land  was  in  the  same  state  at  the  time  of  the  accident  that  it 
was  in  at  the  time  the  permission  to  use  it  was  originally  given.  To 
create  a  cause  of  action,  something  like  fraud  must  be  shown.  No 
action  will  Ue  against  a  spiteful  man  who,  seeing  another  running  into 
a  position  of  danger,  merely  omits  to  warn  him.  To  bring  the  case 
within  the  category  of  actionable  negUgence,  some  wrongful  act  must 
be  shown,  or  a  breach  of  some  positive  duty:  otherwise,  a  man  who 
allows  strangers  to  roam  over  his  property  would  be  held  to  be  an- 
swerable for  not  protecting  them  against  any  danger  which  they 
might  encounter  whilst  using  the  license.  Every  man  is  bound  not 
wilfully  to  deceive  others,  or  do  any  act  which  may  place  them  in 
danger.  It  may  be,  as  in  Corby  v.  Hill,  4  C.  B.  n.  s.  556, 27  L.  J.  C.  P. 
318,  that  he  is  responsible  if  he  puts  an  obstruction  on  the  way  which 
is  likely  to  cause  injury  to  those  who  by  his  permission  use  the  way; 
but  I  cannot  conceive  that  he  could  incur  any  responsibility  merely  by 
reason  of  his  allowing  the  way  to  be  out  of  repair.  For  these  reasons, 
I  think  these  declarations  disclose  no  cause  of  action  against  the 
defendants,  and  that  the  latter  are  therefore  entitled  to  judgment. 

Keating,  J.  I  am  of  the  same  opinion.  It  is  not  denied  that  a  dec- 
laration of  this  sort  must  show  a  duty  and  a  breach  of  that  duty.  But 
it  is  said  that  these  declarations  are  so  framed  that  it  would  be  neces- 
sary for  the  plaintiffs  at  the  trial  to  prove  a  duty.  I  am,  however, 
utterly  imable  to  discover  any  duty  which  the  defendants  have  con- 
tracted towards  the  persons  whom  the  plaintiflts  represent,  or  what 
particular  breach  of  duty  is  charged.  It  is  said  that  the  condition  of 
the  land  and  bridges  was  such  as  to  constitute  them  a  kind  of  trap.  I 
cannot  accede  to  that.  The  persons  who  used  the  way  took  it  with  all 
its  imperfections. 

Herschell  asked  and  obtained  leave  to  amend  within  ten  days,  on 
payment  of  costs;  otherwise  judgment  for  the  defendants. 

Judgment  accordingly,^ 

1  Hoimsell  v.  Smytli,  7  C.  B.  n.  s.  731;  Batcbelor  v.  Portescue,  11  Q.  B.  D.  474; 
Watson  i;.  Manitou  R.  Co.,  41  Col.  138;  Bentley  v.  Loverock,  102  lU.  App.  166; 
Joseph  V,  Henrici  Co..  137  111.  171;  Indiana  R.  Co.  v,  Bamhart.  115  Ind.  399; 
South  Bend  Iron  Works  v.  Larger,  11  Ind.  App.  367;  Dixon  v.  Swift,  98  Me.  207; 
Reardon  t;.  Thompson,  149  Mass.  267;  Blackstone  v.  Chelmsford  Foimdry  Co., 


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SECrr.  VI.]  CAMPBELL  V.  BOYD  183 

CAMPBELL  V.  BOYD 

Supreme  Court,  North  Carolina,  February  Term,  1883. 

Reported  in  88  North  Carolina  Reports^  129. 

Civil  action  tried  at  Fall  Term,  1882,  of  Beaufort  Superior  Court, 
before  Gilliam,  J. 

The  defendant  appealed. 

Smith,  C.  J.  The  defendant  owns  and  operates  a  mill,  that  has 
been  built  and  used  for  one  hundred  years,  at  the  head  of  Pungo  creek. 
A  few  yards  below  its  site  the  creek  divides,  and  its  waters  flow  in  two 
separate  streams.  Along  its  course  on  either  side  run  parallel  public 
roads  each  two  miles  distant,  and  from  them  have  been  constructed 
private  ways  leading  up  to  and  meeting  at  the  mill,  and  affording  con- 
venient access  from  the  roads  to  it.  One  of  these  ways  was  opened  by 
former  proprietors,  and  the  other  in  the  year  1867,  by  the  defendant. 

In  1875  or  1876,  the  defendant,  with  other  owners  of  the  interven- 
ing land,  imited  in  opening  a  connecting  way,  between  those  leading 
from  the  public  roads,  from  near  points  in  each,  so  as  to  form  a  direct 
passway  across  the  two  divergent  streams  from  one  road  to  the  other, 

170Maa8.321;  Vanderbeck  t?.  Hendry,  34  N.  J.  Law,  467;  Fitzpatrick  ».  Cumber- 
land Glass  Co.,  61  N.  J.  Law,  378;  Taylor  i;.  Turnpike  Co.,  65  N.  J.  Law,  102; 
Victory  v.  Baker.  67  N.  Y.  366;  Larmore  v.  Crown  R)int  Iron  Co.,  101  N.  Y.  391; 
Sterger  v.  Van  Sicklen,  132  N.  Y.  499;  Englehardt  v.  Central  R.  Co^  139  App. 
Div.  786;  McCann  v.  Thilemann,  36  Misc.  145;  Monroe  v.  Atlantic  K.  Co.,  151 
N.  C.  374:  Costello  v.  Fanners'  Bank,  34  N.  D.  131;  Kelley  w.  City,  41  Ohio  St. 
263;  Schiffer  v.  Sauer,  238  Pa.  St.  550;  Lunsford's  Administrator  v.  Colonial  Coal 
Co^  115  Va.  346  Accord. 

But  see  Brinilson  v.  Chicago  R.  Co.,  144  Wis.  614. 

As  to  liability  to  children  licensees,  see  Jansen  v.  Siddal,  41  111.  App.  279;  Cleve- 
land R.  Co.  V.  Means,  (Ind.  App.)  104  N.  E.  785;  Benson  v.  Baltimore  Traction 
Co.,  77  Md.  535;  McCoy  v.  Walsh,  186  Mass.  369;  Romana  v.  Boston  R.  Co.,  218 
Mass.  76;  Bottum  v.  Hawks,  84  Vt.  370. 

But  see  Knapp  v,  Doll,  180  Ind.  526  {citing  cases);  Wilmes  v.  Chicago  R.  Co., 
175  la.  101;  Lyttle  v.  Town  Coal  Co.,  167  Ky.  345. 

As  to  liahility  where  there  is  a  known,  permissive,  general  use  by  the  public,  see 
Pomponio  v.  New  York  R.  Co.,  66  Coim.  528;  Western  R.  Co.  v.  Meigs,  74  Ga.  857; 
Green  v.  Chicago  R.  Co.,  110  Mich.  648;  Bany  v.  New  York  R.  Co.,  92  N.  Y.  289; 
Taylor  v.  Delaware  Canal  Co.,  113  Pa.  St.  162;  Delaney  v.  Milwaukee  R.  Co.,  33 
Wis.  67.    Compare  Tucker  v.  Draper,  62  Neb.  66. 

Liability  in  case  of  gratuitous  carriage:  [The  judge  at  the  trial  in  char^g  the 
jury]  "  su^ested  that  the  measure  of  duty  towards  a  bare  licensee  is  different, 
where  the  licensor  accepts  the  duty  of  carrying  him,  from  what  it  is  where  he 
merely  permits  him  to  pass  through  his  premises;  and  I  think  the  cases  support 
this  view.  ...  I  think  it  was  competent  for  the  jury  to  find,  as  they  must  be 
taken  to  have  found^  a  failure  of  that  ordinary  care  which  is  due  irom  a  person  who 
undertakes  the  carnage  of  another  gratuitously.  The  principle  in  all  cases  of  this 
class  is  that  the  care  exercised  must  be  reasonable ;  and  the  standard  of  reasonable- 
ness naturally  miist  vary  according  to  the  circumstances  of  the  case,  the  trust  re- 
posed, and  the  skill  and  apphances  at  the  disposal  of  the  person  to  whom  another 
confides  a  duty.  There  is  an  obvious  difference  between  tne  measure  of  confidence 
reposed  and  responsibility  accepted  in  the  case  of  a  person  who  merely  receives  per- 
mission to  traverse  the  premises  of  another,  and  in  the  case  where  a  person  or  his 
property  is  received  into  the  custody  of  another  for  transportation :  see  in  the  case 
of  goods,  Southcote's  Case,  (1601)  4  Rep.  83  b.  cited  in  Coggs  v.  Bernard,  1  Smith, 


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184  CAMPBELL  V.  BOYD  [CHAP.  II. 

without  going  up  to  the  mill.  Over  these  waters  they  also  constructed 
bridges.  While  this  direct  route  was  opened  mainly  for  the  conven- 
ience of  the  defendant  and  his  associates,  whose  lands  were  traversed, 
it  was  also  used  as  well  by  the  public  with  full  knowledge  of  the  de- 
fendant, and  without  objection  from  any  one  in  passing  between  the 
roads. 

In  February,  1882,  the  plaintiff,  with  his  horse,  while  in  the  use  of 
this  connecting  way  and  passing  one  of  the  bridges,  broke  through, 
and  both  were  precipitated  into  the  creek,  and  the  damage  sustained 
for  the  redress  of  which  the  suit  is  brought. 

The  flooring  of  the  bridge  was  soimd,  and  there  was  no  visible  indi- 
cation of  weakness  or  decay  to  put  a  person  passing  over  it  on  his 
guard.  But  the  timbers  underneath,  and  hidden  by  the  floor,  were  in 
a  rotten  and  imsound  condition,  and  of  this  the  defendant  had  full 
knowledge  before  the  disaster. 

He  was  at  his  mill  and  saw  what  occurred,  and  going  up  to  the  place 
remarked  to  the  plaintiff  that  when  he  saw  him  about  to  enter  the 
bridge  he  thought  of  calling  him  to  stop,  but  did  not  do  so;  that  the 
bridge  was  unsafe,  and  he  regretted  he  d[id  not  stop  the  plaintiff  from 
crossing. 

These  are  the  material  facts  foimd  by  the  judge,  imder  the  consent 
of  parties  that  he  should  pass  upon  the  evidence  and  ascertain  the 
facts  of  the  case,  and  our  only  inquiry  is  upon  the  correctness  of  his 
ruling  that  the  defendant  is  liable  in  damages  to  the  plaintiff,  and 
from  which  the  defendant  appeals. 

The  only  case  in  our  reports  bearing  upon  the  point  is  that  of  Mul- 
holland  v.  Brownrigg,  2  Hawks,  349.  There,  the  defendant's  mill- 
pond  overflowed  parts  of  the  public  road,  and  hollow  bridges  had  been 
erected,  but  by  whom,  did  not  appear;  nor  was  it  shown  that  they 
were  built  at  the  expense  of  the  public.  This  condition  of  things  had 
existed  for  twenty  years,  and  the  mill  had  been  owned  and  operated 
by  the  defendant  for  the  space  of  five  years.    The  successive  mill 

L.  C,  11th  ed.,  p.  173,  and  the  notes  thereto.  In  the  case  of  persons  received  for 
carriage,  Parke,  B.,  says  in  Lygo  v.  Newbold,  (1854)  9  Ex.  302,  at  p.  305:  '  A  per- 
son who  undertakes  to  provide  for  the  conveyance  of  another,  although  he  does  so 
g-atuitously,  is  bound  to  exercise  due  and  reasonable  care.'  In  Austin  v.  Great 
Western  Ry.  Co.,  [1867]  2  Q.  B.  442,  at  p.  445,  Blackburn,  J.,  says:  *  I  think  that 
what  was  said  in  the  case  of  Marshall  v.  York,  Newcastle  and  Berwick  Ry.  Co., 
(1851)  11  C.  B.  655,  was  quite  correct.  It  was  there  laid  down  that  the  right 
which  a  passenger  by  railway  has  to  be  carried  safely  does  not  depend  on  his  hav- 
ing made  a  contract,  but  that  the  fact  of  his  being  a  passenger  casts  a  duty  on  the 
company  to  carry  him  safely.'  " 

Collins,  M.  R.,  in  Harris  v.  Perry,  [1903]  2  K.  B.  219,  225,  226.  And  see,  also, 
Sington  on  Negligence,  61,  62.    But  compare  Beard  v.  Klusmeier,  158  Ky.  153. 

In  the  case  of  a  gratuitous  loan  of  a  chattel,  the  lender  owes  no  duty  to  the  bor- 
rower except  to  give  warning  of  any  defects  actually  known  to  the  lender.  Gagnon 
V.  Dana,  69  N.  H.  264;  Coughlm  v.  Gillison,  [1899]  1  Q.  B.  145.  "  A  contract  of 
gratuitous  service,  however,  such  as  one  of  carriage,  involves  a  duty  of  reasonable 
care,  and  must  therefore  be  distinguished  from  a  contract  of  gratuitous  bailment 
or  a  gift,  which  does  not."    Sahnond  on  Torts,  361. 


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SECT.  VI.]  CAMPBELL  V.  BOYD  185 

proprietors  had  kept  the  overflowed  bed  of  the  road  and  the  bridges 
in  repair.  The  plaintiff's  wagon,  loaded  with  goods,  passing  a  bridge, 
broke  through,  in  consequence  of  its  decayed  state,  and  the  goods  were 
injured  by  the  water.  The  action  was  for  this  injury.  It  was  declared 
by  the  Court  that  as  a  nuisance  was  created  by  the  flooding  of  the 
road,  and  the  defendant  had  undertaken  to  remedy  it  in  constiaicting 
the  bridges,  it  was  his  duty,  as  that  of  preceding  proprietors  of  the 
mill,  to  maintain  them  in  a  proper  condition  of  repair,  and  ensure  the 
safety  of  those  persons  who  in  using  the  road  had  to  pass  over  them, 
and  that  the  dwiage  having  resulted  from  his  negligence  he  was  liable 
to  the  plaintiff.  The  proposition  is  asserted,  that  inasmuch  as  the 
defendant  has  undertaken  to  remedy  a  nuisance  of  his  own  creating, 
by  constructing  the  bridge,  he  undertakes  also  and  is  bound  to  keep 
it  in  sufficient  repair,  and  is  answerable  for  the  cdnsequences  of  his 
neglect  to  do  so. 

The  principle  of  law,  in  more  general  terms  and  with  a  wider  scope, 
is  thus  expressed  by  Hoar,  J.,  in  Combs  v.  New  Bed.  Con.  Co.,  102 
Mass.  584.  "  There  is  another  class  of  cases  in  which  it  has  been  held 
that,  if  a  person  allows  a  dangerous  place  to  exist  in  premises  occupied 
by  him,  he  will  be  responsible  for  injury  caused  thereby,  to  any  other 
person  entering  upon  the  premises  by  Ws  invitation  and  procurement, 
express  or  implied,  and  not  notified  of  the  danger,  S  the  person 
injured  is  in  the  use  of  due  care." 

"  The  principle  is  well  settled,"  remarks  Appleton,  C.  J.,  "  that  a 
person  injured,  without  neglect  on  his  part,  by  a  defect  or  obstruction 
in  a  way  or  passage  over  which  he  has  been  induced  to  pass  for  a  law- 
ful purpose,  by  an  invitation  express  or  implied,  can  recover  dam- 
ages for  the  injury  sustained,  against  the  individual  so  inviting,  and 
being  in  defaidt  for  the  neglect."  Tobin  v.  P.  S.  &  P.  R.  R.,  69 
Mame,  188. 

Several  illustrations  of  the  principle  in  its  different  applications 
will  be  foimd  in  Wharton  on  Negligence,  §  826,  and  following. 

The  facts  of  the  present  case  bring  it  within  the  rule  thus  enunci- 
ated. The  way  was  opened  by  the  defendant  and  his  associates; 
primarily,  though  it  was  for  his  and  their  accommodation,  yet,  per- 
missively,  to  the  general  travelling  pubUc.  It  has,  in  fact,  been  thus 
used,  and  known  to  the  defendant  to  be  thus  used,  with  the  acquies- 
cence of  himself  and  the  others;  and  under  these  circumstances  it 
may  fairly  be  assumed  to  be  an  invitation  to  all  who  have  occasion 
thus  to  use  it;  and  hence  a  voluntary  obligation  is  incurred  to  keep 
the  bridges  in  a  safe  condition,  so  that  no  detriment  may  come  to 
travellers. 

Reparation  is  an  inseparable  incident  of  its  construction,  and,  as  the 
obligation  to  repair  rests  on  no  other,  the  liability  for  neglect  must 
rest  on  those  who  put  the  bridges  there  and  invited  the  public  to  use 
them. 


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X86  GALLAGHER  V.  HUMPHREY  CCHAP,  H. 

It  is  true  the  way  might  have  been  closed,  or  the  public  prohibited 
by  proper  notices  from  passing  over  it,  and  no  one  could  complain  of 
the  exercise  of  the  right  to  do  so;  but  as  long  as  the  way  is  left  open 
and  the  bridges  remain  for  the  pubUc  to  use,  it  is  incumbent  on  those 
who  constructed  and  maintain  them  to  see  that  they  are  safe  for  all. 

The  law  does  not  tolerate  the  presence  over  and  along  a  way  in 
conmion  use,  of  structures  apparently  sound,  but  in  fact  ruinous,  Uke 
man-traps,  inviting  travellers  to  needless  disaster  and  injury.  The 
duty  of  reparation  should  rest  on  some  one,  and  it  can  rest  on  none 
others  but  those  who  built  and  used  the  bridges,  and  impliedly  at  least 
invite  the  pubUc  to  use  them  also.  For  neglect  of  this  duty  they  must 
abide  the  consequences. 

;  We  hold,  th^*efore,  that  there  is  no  error,  and  the  judgment  must  be 
£|ffinixed. 

No  error.  Affirmed.^ 

GALLAGHER  v.  HXJMPHREY 

In  the  Queen's  Bench,  June  14, 1862. 
Reportedin  6  Law  Times  ReparU,  New  Series,  684;  S.  C.  10  Weekly  Reporter,  664.« 

•  Declaration.  That  the  defendant  was  possessed  of  a  crane  fixed 
upon  the  New  Hibemia  Wharf,  in  a  certain  passage  called  Montague 
Close,  Southwark,  along  which  passage  the  plaintiff  and  others  were 
permitted  to  pass,  repass,  and  use  the  same  as  a  way  to  certain 
'^^harves;  that  the  crane  was  used  by  the  defendant  and  his  servants 
to  raise  and  lower  goods  over  the  passage;  that  the  plaintiff  was, 
with  the  permission  of  the  proprietors  of  the  passage,  lawftilly  passing 
along  the  said  passage  to  the  said  wharves;  yet  the  defendant,  by 
-himself  and  his  servants,  so  negligently,  &c.  managed,  directed,  and 
conducted  themselves  that  by  and  through  such  neglect,  &c.,  a  part 
of  said  crane  broke,  whilst  the  defendant,  by  his  servants,  was  using 
the  same,  and  certain  goods  fell  upon  the  plaintiff  whilst  he  was 
passing  along,  &c.  and  broke  both  his  legs,  &c. 

Pleas:  1.  Not  guilty.  2.  That  the  plaintiff  and  others  were  not  per- 
mitted by  the  proprietors  of  the  said  passage  to  pass,  repass,  and  use 
the  said  passage  as  a  way  from  a  highway  to  certain  wharves,  as  in  the 
declaration  charged.  3.  That  the  plaintiff  was  not,  with  the  permis- 
sion of  the  proprietors  of  the  said  passage,  lawfully  passing  along  the 

»  Foster  V,  Portland  Min.  CJo.,  (C.  C.  A.)  114  Fed.  613;  Central  R.  Co.  r. 
Robertson,  95  Ga.  430;  Chicago  R.  Co.  v.  Reinhardt,  235  HI.  576, 139  111.  App.  53; 
Indisinapolis  Water  Co.  v.  Harold,  170  Ind.  170;  Lawson  v.  Shreveport  Water- 
works C!o.,  Ill  La.  73;  Schaaf  v.  St.  Louis  Basket  Co.,  151  Mo.  App.  35;  Furey  v. 
New  York  R.  Co.,  67  N.  J.  Law,  270;  Fogartv  v.  Bogart,  59  App.  Div.  114; 
Toledo  Real  Estate  Co.  v.  Putney,  20  Ohio  Cir.  Ct.  Rep.  486;  Bush  v.  Johnston, 
23  Pa.  St.  209  Accord.    Compare  Moffatt  v.  Kenny,  174  Mass.  311. 

*  The  case  is  reprinted  from  the  Law  Times  Reports,  except  the  opinions  of 
Crompton,  J.,  and  Blackburn,  J.,  which  are  taken  from  the  Weekly  Reporter. 


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SECT.  VI.]  GALLAGHER  V.  HUMPHREY  187 

said  passage  from  the  said  highway  to  the  said  wharves,  as  in  the 
declaration  alleged. 

Issue  on  the  said  pleas. 

At  the  trial  before  Blackburn,  J.,  at  the  Croydon  Summer  Assizes, 
1861,  it  was  proved  that  the  plaintiff,  the  son  of  a  laborer  employed  in 
the  erection  of  West  Kent  Wharf,  under  a  contractor  for  the  defend- 
ant's father,  had,  on  the  day  when  the  accident  happened,  taken  his 
father's  dinner,  according  to  his  usual  custom,  to  West  Kent  Wharf, 
and  on  his  retiun  was  obliged  to  pass  under  a  crane  erected  on  the 
defendant's  (Hibemia)  wharf,  and  there  employed  in  lowering  bar- 
rels of  sugar.  As  he  was  passing  the  chain  broke,  and  12  cwt.  of  sugar 
fell  uix)n  him,  inflicting  the  injuries  complained  of..  The  breakage  of 
the  chain  was  caused  by  negligence  in  the  mode  of  applying  the  breaks, 
for,  after  the  sugar  had  been  attached  the  chain  of  the  crane  was  al- 
lowed i/o  run,  and  then  the  man  suddenly  put  on  the  break  and  the 
jerk  caused  the  weight  to  rise  and  fall  and  the  chain  to  break.  Mon- 
tague Close  k  approached  by  steps  from  London  Bridge,  the  gate  to 
which  was  usually  opened  very  early  in  the  morning,  and  numbers  of 
persons,  to  the  knowledge  of  the  defendant,  used  to  pass  along  the 
passage,  and  no  objection  was  made  to  persons  using  the  way  if  on 
legitimate  business.  The  judge  left  the  following  questions  to  the 
jury:  1st,  Was  the  accident  caused  by  the  negligence  of  the  defend- 
ant, or  was  it  a  pure  accident  over  which  no  one  could  have  any 
control  ?  2d,  Could  the  boy  by  reasonable  care  have  avoided  the 
accident  ?  3d,  Were  the  plaintiff  and  others  permitted  to  go  up 
Montague  Close  by  the  owners  ?  4th,  Did  the  defendant  on  the  evi- 
dence as  disclosed  tacitly  give  permission  to  the  plaintiff  to  pass  that 
way  ?  6th,  Was  the  boy  going  to  the  wharf  for  a  legitimate  purpose  ? 
The  jury  having  answered  all  the  questions  in  favor  of  the  plaintiff,  a 
verdict  was  entered  for  him,  with  leave  for  the  defendant  to  move  to' 
set  it  aside  and  enter  a  verdict  on  the  second  and  third  issues.  The 
damages  were  assessed  at  £100. 

A  rule  nid  having  been  obtained  calling  on  the  plaintiff  to  show 
cause  why  the  verdict  should  not  be  entered  for  the  defendant  on  the 
second  and  third  issues,  — 

Shee^  Serjt.j  {Grady  with  him,)  showed  cause.  On  the  form  of  the 
rule  as  obtained  the  plaintiff  is  clearly  entitled  to  succeed,  as  there  was 
evidence  that  the  deifendant  did  by  his  acts  tacitly  give  permission  to 
the  boy  to  pass  along  the  close  for  a  lawful  purpose,  and  the  jury  have 
so  foimd.  But  the  plaintiff  is  also  entitled  to  succeed  on  the  broader 
ground.  In  Corby  v.  Hill,  4  C.  B.  n.  s.  556,  it  was  held  that  the  de- 
fendant was  liable  for  the  negligence  of  his  servant  in  placing  materials 
in  a  dangerous  position,  and  without  notice,  on  a  private  road  along 
which  persons  were  accustomed  to  pass  by  leave  of  the  owners;  and 
in  Southcote  v.  Stanley,  25  L.  J.  339,  Ex.,i  a  visitor  to  a  person's  house 

*  The  reference  should  be  25  L.  J.  (n.  s.)  or  34  L.  J. 


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188  GALLAGHER  V.  HUMPHREY  [CHAP.  U. 

was  held  entitled  to  recover  for  injuries  caused  by  opening  a  glass  door 
which  was  insecure,  and  which  it  was  necessary  for  him  to  open.  (He 
was  then  stopped  by  the  Court.) 

Petersdorff,  SerjL,  {Bridge  with  him,)  in  support  of  the  rule.  Mon- 
tague Close  was  the  defendant's  private  property,  and  no  one  had  any 
right  to  be  there  without  his  express  or  implied  permission.  The 
lowering  heavy  goods  from  the  warehouses  by  cranes  is  a  manifestly 
dangerous  business,  and  persons  using  the  way  took  upon  themselves 
whatever  risks  mi^t  be  incidental  to  that  business.  In  Hounsell  v. 
Smyth,  7  C.  B.  n.  s.  743,  where  the  defendant  was  held  not  to  be  liable 
for  leaving  a  quarry  unfenced  on  waste  land  across  which  the  public 
were  allowed  to  pass,  Williams,  J.,  said:  "  No  right  is  averred,  but 
merely  that  the  owners  allowed  persons,  for  diversion  or  business,  to 
go  across  the  waste  without  complaint;  that  is,  that  they  were  not  so 
churlish  as  to  interfere  with  any  one  who  went  across.  But  a  person 
so  using  the  waste  has  no  right  to  complain  of  any  excavation  he  may 
find  there;  he  must  accept  the  permission  with  its  concomitant  con- 
ditions, and  it  may  be  its  perils."  [Blackburn,  J.  Have  you  any 
authority  that  persons  so  using  the  way  take  upon  themselves  the  neg- 
ligence of  the  servants  about  the  place  ?]  In  Bolch  v.  Smith,  31  L.  J. 
201,  Ex.,  where  workmen  employed  in  a  dockyard  were  permitted  to 
use  a  place  as  a  way  on  which  revolving  machinery  had  been  erected,  it 
was  held  that  the  right  so  to  use  the  place  was  only  the  right  not  to  be 
treated  as  a  trespasser,  and  that  there  was  no  obligation  to  fence  the 
machinery,  and  no  liability  for  insufficiently  fencing  it.  [Cockburn, 
C.  J.  There  was  the  ordinary  state  of  things  in  that  case,  and  no 
superadded  negligence.] 

Cockburn,  C.  J.  I  doubt  whether  on  the  pleadings  and  this  rule  it 
is  competent  to  enter  into  the  question  of  negligence,  and  whether  the 
whole  matter  does  not  turn  upon  the  question  whether  permission  was 
or  was  not  given  to  the  plaintiff  to  pass  along  the  way.  But  I  should 
be  sorry  to  decide  this  case  upon  that  narrow  ground.  I  quite  agree 
that  a  person  who  merely  gives  permission  to  pass  and  repass  along  his 
close  is  not  boimd  to  do  more  than  allow  the  enjoyment  of  such  per- 
missive right  under  the  circumstances  in  which  the  way  exists;  that 
he  is  not  bound,  for  instance,  if  the  way  passes  along  the  side  of  a 
dangerous  ditch  or  along  the  edge  of  a  precipice,  to  fence  ofif  the  ditch 
or  precipice.  The  grantee  must  use  the  permission  as  the  thing  exists. 
It  is  a  different  question,  however,  where  negligence  on  the  part  of  the 
person  granting  the  permission  is  superadded.  It  cannot  be  that,  hav- 
ing granted  permission  to  use  a  way  subject  to  existing  dangers,  he  is 
to  be  allowed  to  do  any  further  act  to  endanger  the  safety  of  the  per- 
son using  the  way.  The  plaintiff  took  the  permission  to  use  the  way 
subject  to  a  certain  amoimt  of  risk  and  danger,  but  the  case  assimies  a 
different  aspect  when  the  negligence  of  the  defendant  —  for  the  negli- 
gence of  his  servants  is  his  —  is  added  to  that  risk  and  danger.    The 


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SBCrr.  VI.]  GALLAGHER  V.  HUMPHREY  189 

way  in  question  was  a  private  one  leading  to  different  wharves.  On 
part  of  the  way  a  wharf  was  being  constructed  or  repaired,  and  the 
plaintiff's  father  was  employed  upon  that  work.  It  was  the  father's 
habit  not  to  go  home  to  his  meals,  and  the  boy  used  to  take  them  to 
him  at  the  wharf,  and  on  this  occasion  was  passing  along  carrying  his 
father's  dinner.  The  plaintiff  was  therefore  passing  along  on  a  per- 
fectly legitimate  purpose,  and  the  evidence  is  that  the  defendant  per- 
mitted the  way  to  be  used  by  persons  having  legitimate  business  upon 
the  premises.  That  being  so,  the  defendant  places  himself  by  such 
permission  imder  the  obligation  of  not  doing  anything  by  himself  or 
his  servants  from  which  injury  may  arise,  and  if  by  any  act  of  negU- 
gence  on  the  part  of  himself  or  his  servants  injury  does  arise,  he  is 
liable  to  an  action.  That  is  the  whole  question.  The  plaintiff  is 
passing  along  the  passage  by  permission  of  the  defendant,  and  though 
he  could  only  enjoy  that  permission  under  certain  contingencies,  yet 
when  injury  arises  not  from  any  of  those  contingencies,  but  from 
the  superadded  n^ligence  of  the  defendant,  the  defendant  is  liable 
for  that  negligence  as  much  as  if  it  had  been  upon  a  public  highway. 

WiGHTMAN,  J.  The  rule  in  this  case  was  obtained  on  a  very  narrow 
groimd.  The  declaration  having  alleged  that  the  plaintiff  and  others 
were  permitted  to  pass,  repass,  and  use  the  way  in  question,  and  that 
the  plaintiff  was  there  with  the  permission  of  the  proprietors  of  the 
passage  lawfully  passing  along  the  passage,  the  defendant  took  issue 
on  the  fact  whether  such  right  to  pass  along  the  passage  was  permitted 
by  the  defendant.  I  think  that  there  was  evidence  to  show  that  the 
plaintiff  had  the  permission  of  the  defendant  to  use  the  way,  and  that 
he  was  lawfully  there  at  the  time  of  the  accident.  I  entirely  agree  with 
my  Lord  Chief  Justice  that  the  plaintiff  is  also  entitled  to  succeed  on 
the  larger  ground.  It  appears  to  me  that  such  a  permission  as  is  here 
alleged  may  be  subject  to  the  qualification  that  the  person  giving  it 
shall  not  be  liable  for  injuries  to  persons  using  the  way  arising  from 
the  ordinary  state  of  things,  or  of  the  ordinary  nature  of  the  business 
carried  on;  but  that  is  distinguishable  from  the  case  of  injuries  wholly 
arising  from  the  n^ligence  of  that  person's  servants. 

Crompton,  J.  I  am  of  the  same  opinion.  I  think  we  should  look 
not  only  to  the  grounds  upon  which  this  rule  was  granted,  but  to  the 
real  defence  set  up  by  my  brother  Petersdorff.  That  defence  is,  in 
effect,  that  the  plaintiff  was  using  the  way  only  under  the  qualified  per- 
mission that  he  should  be  subject  to  any  negligence  of  the  plaintiff  or 
his  servants.  If  that  defence  be  sustainable  upon  the  general  issue,  or 
otherwise,  we  should  see  whether  it  is  made  out,  and  I  am  of  opinion 
that  it  is  not  made  out.  I  quite  agree  with  what  has  fallen  from  my 
Lord  and  my  brother  Wightman.  There  may  be  a  public  dedication  of 
a  way,  or  a  private  permission  to  use  it  subject  to  a  qualification;  for 
example,  subject  to  the  danger  arising  from  a  stone  step  or  a  projecting 
house;  and  in  such  a  case  the  public,  or  the  persons  using  the  way, 


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190  GALLAGHEP  V.  HUMPHREY  [CHAP.  It. 

take  the  right  to  use  it  subject  to  such  qualification;  but  they  are  not 
thereby  to  be  made  subject  to  risks  from  what  may  be  called  active 
negligence.  Whenever  a  party  has  a  right  to  pass  over  certain  ground, 
if  injury  occurs  to  him  while  so  passing  from  negligence,  he  has  a  right 
to  compensation.  The  argument  of  my  brother  PetersdorflF  fails  there- 
fore upon  this  ground.  I  think,  too,  that  it  is  doubtful  whether  even 
the  fact  that  the  injured  person  was  present  unlawfully  would  excuse 
negligence,  though  it  would  be  an  element  in  determining  what  is  neg- 
ligence, and  what  is  not.  In  the  present  case,  however,  that  question 
does  not  arise,  as  there  is  no  doubt  the  plaintiff  was  there  upon  a 
legitimate  errand. 

Blackburn,  J.  I  am  of  the  same  opinion.  If  the  substantial  de* 
fence  raised  existed  I  am  not  sure  but  what  it  could  be  raised  imder 
the  present  pleadings,  and  the  leave  reserved;  but  at  any  rate  I  think 
we  could  amend  the  pleadings,  if  necessary,  to  raise  it.  But  I  do  not 
think  that  any  such  defence  exists  here.  The  plaintiff  seeks  to  recover 
for  the  negligence  of  the  defendant.  Now,  the  existence  of  negligence 
depends  upon  the  duty  of  the  party  charged  with  it.  I  concur  with  the 
judgment  of  the  Court  of  Exchequer  in  Bolch  v.  Smith  that,  when  per- 
mission is  given  to  a  person  to  pass  through  a  yard  where  dangerous 
machinery  is  at  work,  no  duty  is  cast  upon  the  person  giving  such  per- 
mission to  fence  the  machinery  against  the  person  permitted  so  to  pass. 
That  decision  does  not  touch  the  present  case,  which  falls  rather 
within  the  remark  then  made  by  my  brother  Wilde :  "  If  persons  in  the 
condition  of  the  defendant  had  left  anything  like  a  trap  in  route  used 
on  the  premises,  I  am  far  from  saying  they  would  not  be  liable."  This 
is  more  Uke  the  case  of  Corby  v.  Hill,  where  the  matter  placed  upon 
the  road  is  called  a  trap  set  for  persons  using  it;  and  it  is  clear  that 
when  one  gives  another  permission  to  pass  over  his  land,  it  is  his  duty 
not  to  set  a  trap  for  him.  Here  the  boy  was  passing  upon  a  legitimate 
errand  while  the  defendant's  servants  were  employed  in  lowering 
weights.  If  he  had  sustained  any  injury  by  a  weight  descending,  with- 
out any  negligence  of  the  defendant's  servants,  there  is  no  doubt  that 
he  could  not  recover,  but  he  suffered  through  the  negligence  of  the  per- 
sons lowering  the  bags,  who  were  well  aware  that  people  were  in  the 
habit  of  passing  below,  and  that  danger  would  arise  if  the  chain  broke. 
I  think,  therefore,  that  it  was  the  duty  of  the  defendant  and  his  serv- 
ants to  use  ordinary  care  that  the  chain  should  not  break.  The  jury 
have  found  that  they  neglected  that  duty,  and  I  do  not  disagree  with 
their  finding.  Our  decision  does  not  conflict  with  the  judgment  of  the 
Comt  of  Exchequer  in  Bolch  v.  Smith,  or  of  the  Conunon  Pleas  in 
Hoimsell  v.  Smyth.  Rule  discharged.^ 

»  Fdton  V.  Aubrey,  74  Fed.  350;  De  Haven  v.  Hennessey,  (C.  C.  A.)  137  Fed. 
472:  Standard  Car  Co.  v.  McGuire,  161  Fed.  627;  Pompjonio  v.  New  York  R.  CJo., 
66  Conn.  528;  Rink  v,  Lowry,  38  Ind.  App.  132;  Schmidt  v.  Michigan  Coal  Co., 
159  Mich.  308;  Clarkinv.Biwabik-Be88emerCo.,65Minn.483;  Hyatt  v.  Murray, 
101  Minn.  507;  Schaaf  v.  St.  Louis  Basket  Co.,  151  Mo.  App.  35;  Knowles  v. 


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SECT.  Vli]  CARSKADDON  V.  MILLS  491 

CARSKADDON  v.  MILLS 

In  the  Appellate  Court,  Indllnta,  May  Tebm,  1892. 
Reported  in  5  Indiana  Appellate  Court  RepoHSy  22. 

Action  for  damage  to  plaintiflf's  horse.^  Trial  by  the  court.  The 
case  made  by  plaintiff's  evidence  was  in  substance  as  follows:  — 

Defendant  purchased  a  lot  of  land  in  October,  1890.  Across  this  lot 
ran  a  road  leading  from  one  street  to  another,  having  a  well-defined 
track  made  by  wagons,  horses,  etc.  The  road  was  not  a  public  high- 
way, but  had  been  used  by  the  travelling  public  generally  for  a  period 
of  from  five  to  fifteen  years.  Defendant's  lot  was  not  fenced  on  the 
front  and  rear,  the  direction  in  which  the  road  ran,  but  was  fenced  on 
the  sides.  After  building  a  house  on  the  lot,  defendant  "  informed  " 
the  people  travelling  over  this  roadway  not  to  use  it  any  longer  for 
such  purpose;  but  no  heed  was  paid  to  this.  In  the  latter  part  of  De- 
cember, 1890,  in  order  the  more  effectually  to  stop  the  travel  over  the 
lot,  the  defendant  stretched  a  strand  of  barbed  wire  across  the  rear 
end  of  the  lot,  about  three  feet  above  the  ground  and  at  right  angles, 
or  nearly  so,  with  said  road.  The  entire  fence  was  upon  the  appellee's 
lot.  No  notice  of  any  kind  was  given  of  this  obstruction  otherwise 
than  as  it  advertised  itself.  The  wire  could  not  be  seen  in  the  dark 
of  night  and  only  a  short  distance  —  twenty  to  twenty-five  feet  — 
in  daylight.  There  were  no  poets  that  could  be  seen  from  the  road  in 
the  night  when  the  accident  hereinafter  alluded  to  occurred.  The  ap- 
pellant, who  lived  in  that  commimity,  had  frequently  travelled  over 
the  road  leading  across  this  lot,  and  had  no  notice  or  knowledge  of  its 
being  closed  up  with  the  wire.  The  last  time  before  the  accident 
when  he  passed  over  the  lot  was  in  September  or  October,  1890.  At 
about  6  o'clock  on  the  evening  of  January  1, 1891,  after  it  had  become 
too  dark  to  see  this  wire,  the  appellant  attempted  to  drive  across  this 
lot,  in  the  road,  to  perform  some  legitimate  errand  on  the  other  side. 
Not  knowing  of  the  presence  of  the  wire,  he  drove  his  horse  briskly 
ahead  of  him  imtil  the  animal  came  up  suddenly  against  the  barbs, 
Clotting  a  gash  in  its  front  leg  four  to  five  inches  in  length  and  two 
mches  deep,  severing  the  frontal  muscle,  from  which  the  horse  was 
injured,  to  the  damage  of  the  appellant. 

Exeter  Mfg.  CJo.,  77  N.  H.  268;  Houston  R.  Co.  v.  Bulger.  35  Tex.  Civ.  App.  478; 
Houston  R,  Co.  v.  O'Leary,  (Tex.  Civ.  App.)  136  S.  W.  601  (exploeion  of  car  con- 
taining fireworks);  St.  Louis  R.  Co.  v.  Balthrop.  (Tex.  Civ.  App.)  167  S.  W.  246; 
Hoadley  v.  International  Paper  Co.,  72  Vt.  79  Accord, 

Illinois  R.  Co,  v,  Godfrey,  71  III.  500;  Cunningham  v.  Toledo  R.  Co.,  260  m. 
589;  Dixcm  ».  Swift,  98  Me.  207;  O'Brien  v.  Union  R.  Co.,  209  Mass.  449  Contra, 
See  also  Fox  v.  Warner  Asphalt  Co..  204  N.  Y.  240;  Roche  v,  American  Ice  Co., 
140  App.  Div.  341 ;  Rosenthal  v.  Umted  Beef  Co.,  52  Misc.  166.  Compare  Knight 
V.  Lanier,  69  App.  Div.  454. 

^  Statement  fubridged. 


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192  CARSKADDON  V.  BOLLS  [CHAP.  n. 

When  the  appellant  had  closed  his  evidence,  the  learned  judge  ob- 
served that  he  had  examined  the  law  of  the  case,  and  saw  no  reason 
why  a  man  could  not  fence  in  his  own  land,  on  his  own  ground,  and 
that,  [if]  "  a  travelling  man  over  such  property  taking  the  license  into 
his  own  hand,  without  invitation  or  inducement,  because  others  do  so, 
suffers  injury,  he  must  put  up  with  it." 

The  judge  ruled  that  plaintiff's  evidence  did  not  make  out  a  prima 
facie  right  to  recover;  and  foimd  for  defendant;  den3ang  plaintiff's 
motion  for  a  new  trial.    Plaintiff  appealed. 

Reinhard,  C.  J.  [The  learned  judge  said  that  a  license  may  be 
created  either  by  parol  or  by  acquiescence  in  the  use  of  the  property 
for  the  purpose  in  question  without  objection.  He  field  that  plaintiff 
was  prima  facie  a  licensee,  and  not  a  trespasser.] 

A  mere  license,  however,  to  travel  over  the  land  of  another  may  be 
revoked  at  any  time  at  the  pleasure  of  the  licensor.  Parish  v,  Kaspar, 
109  Ind.  686;  Simpson  v.  Wright,  21  Dl.  App.  67;  13  Am.  &  Eng. 
Encyc.  of  Law,  555. 

Where  the  license  is  once  proved,  however,  or  a  prima  facie  case 
of  such  license  has  been  made  out,  it  then  devolves  upon  the  party 
asserting  a  revocation  to  prove  it.  Blunt  v.  Barrett,  54  N.  Y.  Sup. 
648. 

Consequently  if  the  license  in  the  present  case  was  claimed  to  have 
been  discontinued  or  revoked,  the  burden  was  upon  appellees  to  show 
that  fact. 

Was  such  revocation  established,  or  was  there  any  evidence  from 
which  the  court  could  infer  the  same  ? 

The  transfer  of  the  property,  or  the  fencing  of  the  same,  may,  imder 
ordinary  circumstances,  be  sufficient  to  amount  to  a  revocation.  Or- 
dinarily a  man  has  a  right  to  use  his  own  property  as  he  pleases,  but 
at  the  same  time  this  gives  him  no  right  to  use  it  to  the  detriment  or 
injury  of  his  neighbor.  We  think  the  erection  of  an  ordinary  fence 
around  the  lot,  one  that  was  not  calculated  to  inflict  injury,  was  proper 
and  right,  and  it  was  the  privilege  of  the  appellees  to  thus  close  up 
their  premises  without  asking  of  any  one  the  permission  to  do  so.  But 
whenever  they  undertook  to  inclose  their  property  under  circum- 
stances that  made  it  dangerous  to  those  likely  to  pass  over  it,  and 
which  the  appellees  must  anticipate  would  incur  injury  by  it,  it  be- 
came their  duty,  if  such  dangerous  means  must  be  employed  to  accom- 
plish the  purpose,  to  give  some  sort  of  warning. 

Thus  it  was  held  in  Houston,  etc.,  R.  W.  Co.  v.  Boozer,  70  Tex.  530, 
that  if  the  owner  of  the  land  has  been  accustomed  to  permit  others  to 
use  his  property  to  travel  over  to  such  an  extent  as  to  produce  a  con- 
fident belief  that  the  use  will  not  be  objected  to,  he  must  not  mislead 
them  by  failing  to  give  a  proper  warning  of  his  intention  to  recall  the 
permission.  See,  also,  Cornish  v.  Stubbs,  6  L.  R.  C.  P.  334;  Mellor 
V.  Watkins,  L.  R.  9  Q.  B.  400. 


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SECT.  VI.]  CABSKADDON  V.  BOLLS  193 

While  we  grant  the  clear  right  of  the  appellees  to  revoke  the  license; 
we  assert  as  emphatically  that  they  must  do  so  in  a  manner  not  cal- 
culated under  ordinary  circun^tances  to  inflict  injury  unnecessarily. 
Although  a  Ucensee  acquires  no  interest,  as  the  term  is  usually  em- 
ployed, nor  property  ri^t  in  the  real  estate  over  which  he  is  allowed 
to  travel,  he  yet  has  the  right  not  to  be  wilfully  or  even  recklessly  in- 
jured by  the  acts  of  the  owner.  It  cannot  be  said  truthfully  that  the 
owner  does  not  owe  same  duty  to  a  licensee. 

At  the  time  of  the  stretdiii^  of  the  wire  the  appellees  must  have 
known  that  the  public  would  continue  to  travel  over  this  lot  until  in 
some  way  prevented  from  doing  so.  They  must  have  known  further 
that  a  sin^e  strand  of  wire,  without  posts  at  the  roadside,  or  other 
means  calculated  to  attract  the  attention  of  passers-by,  could  not  be 
seen  in  the  dark,  and  was  a  dangerous  obs^ction,  liable  to  injure 
those  coming  in  contact  with  it.  They  must,  therefore,  have  antici- 
pated just  such  results  as  the  one  that  happened  to  the  appellant.  It 
was  their  clear  duty,  consequently,  in  case  they  desired  to  make  use 
of  the  dangerous  wire,  to  shut  out  the  public  from  going  over  their  lot, 
to  give  some  warning  by  which  the  presence  of  the  wire  might  be 
detected.  Had  they  used  an  ordinary  fence,  one  constructed  out 
of  material  not  necessarily  dangerous  to  life  and  limb  even  if  en- 
countered in  the  dark,  the  case  might  be  otherwise,  and  notice  mi^ 
not  have  been  necessary.  But  the  stretching  of  the  barbed  wire,  with- 
out notice,  imder  the  circmnstances  was,  we  think,  a  plain  violation 
of  duty. 

The  case  made  by  the  evidence  is  one  of  more  than  mere  passive  neg- 
ligence. In  that  class  of  cases  it  is  well  enough  settled  that  there  is  no 
liability  to  a  mere  licensee.  Thus  where  the  owner  of  promises  inad- 
vertently leaves  imguarded  a  pit,  hatchway,  trap-door,  cistern,  or 
other  dangerous  opening,  and  one  who  is  present  merely  by  permis- 
sion and  not  by  invitation,  e3q)ress  or  implied,  faDs  into  the  opening 
and  is  injured,  be  cannot  recover,  as,  in  such  case,  he  enjoys  the  license 
subject  to  the  risks.  Thiele  v.  McManus,  3  Ind.  App.  132.  But  while 
an  owner  may  not  be  liable  to  one  who  is  thus  injured  by  mere  inatten- 
tion and  neglect  of  the  owner,  there  could  be  no  doubt  of  his  liability 
if  it  were  shown  that  the  obstruction  was  placed  tiiere  purposely  to 
keep  the  lic^isee  from  entering  the  premises,  or  for  the  very  purpose  of 
inflicting  injury  if  an  attempt  be  made  to  cross.  As  well  might  an 
owner  give  permission  to  his  nei^bor  to  travel  over  his  field  and  then 
set  a  trap  to  hurt  him. 

Where  the  owner  of  ground  digs  a  pit  or  erects  other  dangerous 
obstructions  at  a  place  where  it  is  probable  that  persons  or  AT^imRlg 
may  go  and  become  injured,  without  usii^  proper  care  to  guard  the 
same,  it  is  well  settled  in  this  state  that  there  is  a  liability,  and  that  the 
owner  must  respond  in  damages  for  any  injury  incmred  by  such  n^- 
ligence.    Yoimg  r.  Harvey,  16  Ind.  314;  Graves  v.  Thomas,  95  Ind. 


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194  INDERMAUR  V.  DAMES  [CHAP.  U. 

361;  Mayhew  v.  Burns,  103  Ind.  328;  Penso  v.  McConnick,  126  Ind. 
116. 

A  barbed  wire  fence  is  not  of  itself  an  unlawful  one,  and  the  build- 
ing of  such  along  a  public  highway  is  not  necessarily  a  negligent  act; 
but  yet,  even  in  such  case  as  that,  there  may  be  circumstances  under 
which  a  person  building  such  a  fence,  in  a  n^ligent  manner,  will  be 
held  liable  for  damages  caused  thereby.  Sisk  v.  Crump,  112  Ind.  504. 
All  these  cases  proceed  upon  the  assumption  that  the  party  whose  neg- 
ligence caused  the  injury  owed  the  oiier  some  duty  which  he  failed 
to  perform,  for,  after  all,  negligence  is  nothing  more  nor  less  than  the 
failure  to  discharge  some  legal  duty  or  obligation. 

Even  trespassers  have  some  rights  an  owner  is  bound  to  respect. 
If  a  person,  without  permission,  should  attempt  to  cross  the  field  of 
another,  and  tramp  down  his  growing  grain,  it  would  not  be  con- 
tended, we  apprehend,  that  this  gave  the  owner  any  ri^t  to  kill  the 
trespasser,  or  even  to  seriously  injure  him  unnecessarily.  The  use  of 
spring  guns,  traps,  and  other  devices  to  catch  and  injure  trespassing 
persons  or  animals  has  been  condenmed  both  in  this  country  and  in 
England.  Hookerv.  Miller,  37  Iowa,  613;  Deane  v.  Clayton,  7  Taunt. 
489.  If  such  means  may  not  be  employed  against  trespassers,  we  do 
not  see  upon  what  principle  it  can  be  held  that  it  is  proper  to  use  them 
against  one  who  has  a  permissive  right  to  go  upon  the  property  where 
they  are  placed. 

While  in  the  case  at  bar  there  may  be  no  proof  of  intentional  injury, 
the  facts,  we  think,  bring  the  case  within  the  principle  declared  in 
Young  V,  Harvey,  supra;  Graves  v.  Thomas,  supra;  Penso  v.  McCor- 
mick,  supra;  and  Sisk  v.  Crump,  supra. 

The  court  should  have  sustained  the  motion  for  a  new  trial. 

Jiuigment  reversed.^ 

INDERMAUR  v.  DAMES 

In  the  CoBfMON  Pleas,  February  26, 1866. 
Reported  in  Law  Reports,  1  Common  PleaSj  274. 

The  judgment  of  the  Court  (Erle,  C.  J.,  Willes,  Keating,  and 
Montague  Smith,  JJ.)  was  delivered  by  * 

Willes,  J.  This  was  an  action  to  recover  damages  for  hurt  sus- 
tained by  the  plaintiff's  falling  down  a  shaft  ftt  the  defendant's  place 
of  business,  through  the  actionable  negligence,  as  it  was  alleged,  of  the 
defendant  and  his  servants. 

»  CJorby  v.  Hill.  4  C.  B.  n.  s.  656;  Rooney  v,  Woolworth,  78  Conn.  167;  Graves 
ff.  Thomas,  95  Xnd.  361;  Penso  v.  McConnick,  125  Ind.  116:  Morrison  v.  Carpen- 
ter, 179  Mich.  207:  Wheeler  v.  St.  Joseph  Stock  Yards  Co.,  66  Mo.  App.  260 
Accord.  Compare  Ellsworth  v.  Metheney,  (C.  C.  A.)  104  Fed.  119;  Cahill  v.  Stone, 
153  Cal.  571;  Martin  v,  Louisville  Bridge  Co.,  41  Ind.  App.  493;  Quigley  v. 
Clough,  173  Mass.  429;  Phillips  v.  Library  Co.,  55  N.  J.  Law,  307;  Beck  v.  Carter, 
68  N.  Y.  283;  Hanson  v,  Spokane  Valley  Land  Co.,  58  Wash.  6. 

*  Statement  and  arguments  omitted. 


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SECT.  VI.]  INDERMAUR  V.  DA3iE8  195 

At  the  trial  before  the  Lord  Chief  Justice  at  the  sittings  here  after 
Michaelmas  Term,  the  plaintiff  had  a  verdict  for  400Z.  damages, 
subject  to  leave  reserved. 

A  rule  was  obtained  by  the  defendant  in  last  term  to  enter  a  non- 
suit, or  to  arrest  the  judgment,  or  for  a  new  trial  because  of  the 
verdict  being  against  the  evidence. 

The  rule  was  argued  diuing  the  last  term,  before  Erie,  C.  J., 
Keating  and  Montague  Smith,  JJ.,  and  myself,  when  we  took  time 
to  consider.  We  are  now  of  opinion  that  the  rule  ought  to  be  dis- 
charged. 

It  appears  that  the  defendant  was  a  sugar-refiner,  at  whose  place  of 
business  there  was  a  shaft  four  feet  three  inches  square,  and  twenty- 
nine  feet  three  inches  deep,  used  for  moving  sugar.  The  shaft  was 
necessary,  usual,  and  proper  in  the  way  of  the  defendant's  business. 
Whilst  it  was  in  use,  it  was  necessary  and  proper  that  it  should  be  open 
and  imfenced.  When  it  was  not  in  use,  it  was  sometimes  necessary, 
with  reference  to  ventilation,  that  it  should  be  open.  It  was  not  neces- 
sary that  it  should,  when  not  in  use,  be  imfenced;  and  it  might  then 
without  injury  to  the  business  have  been  fenced  by  a  rail.  Whether  it 
was  usual  to  fence  similar  shafts  when  not  in  use  did  not  distinctly 
appear;  nor  is  it  very  material,  because  such  protection  was  imques- 
tionably  proper,  in  the  sense  of  reasonable,  with  reference  to  the  safety 
of  persons  having  a  right  to  move  about  upon  the  floor  where  the  shaft 
in  fact  was,  because  in  its  natiure  it  formed  a  pitfall  there.  At  the  time 
of  the  accident  it  was  not  in  use,  and  it  was  open  and  unfenced. 

The  plaintiff  was  a  joume3rman  gas-fitter  in  the  employ  of  a  pat- 
entee who  had  supplied  the  defendant  with  his  patent  gas-regulator,  to 
be  paid  for  upon  the  terms  that  it  effected  a  certain  saving:  and,  for 
the  purpose  of  ascertaining  whether  such  a  saving  had  been  effected, 
the  plaintiff's  employer  required  to  test  the  action  of  the  regulator. 
He  accordingly  sent  the  plaintiff  to  the  defendant's  place  of  business 
for  that  pmpose;  and,  whilst  the  plaintiff  was  engaged  upon  the  floor 
where  the  shaft  was,  he  (under  circumstances  as  to  which  the  evi- 
dence was  conflicting,  but)  accidentally,  and,  as  the  jury  foimd,  with- 
out any  fault  or  negligence  on  his  part,  fell  down  the  shaft,  and  was 
seriously  hint. 

It  was  argued,  that,  as  the  defendant  had  objected  to  the  plaintiff's 
working  at  the  place  upon  a  former  occasion,  he  (the  plaintiff)  could 
not  be  considered  as  having  been  in  the  place  with  the  defendant's 
leave  at  the  time  of  the  accident:  but  the  evidence  did  not  establish 
a  peremptory  or  absolute  objection  to  the  plaintiff's  being  employed, 
so  as  to  make  the  sending  of  him  upon  the  occasion  of  the  accident  any 
more  against  the  defendant's  will  than  the  sending  of  any  other  work- 
man: and  the  employment,  and  the  implied  authority  resulting 
therefrom  to  test  the  apparatus  were  not  of  a  character  involving 
personal  preference  (diledus  personoe)^  so  as  to  make  it  necessary  that 


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196  INDERMAUR  V.  DAMES  [CHAP.  n. 

the  patentee  should  himself  attend.  It  was  not  suggested  that  the 
work  was  not  joumejnnan's  work. 

It  was  also  argued  that  the  plaintiff  was  at  best  in  the  condition  of 
a  bare  licensee  or  guest  who,  it  was  urged,  is  only  entitled  to  use  the 
place  as  he  finds  it,  and  whose  complaint  may  be  said  to  wear  the  cohyt 
of  ingratitude,  so  long  as  there  is  no  design  to  injure  him :  see  Hounsell 
V.  Smyth,  7  C.  B.  n.  s.  371,  29  L.  J.  (C.  P.)  203. 

We  think  this  argument  fails,  because  the  capacity  in  which  the 
plaintiff  was  there  was  that  of  a  person  on  lawful  business,  in  the 
course  of  fulfilling  a  contract  in  which  both  the  plaintiff  and  the  de- 
fendant had  an  interest,  and  not  upcm  bare  permission.  No  sound 
distinction  was  suggested  between  the  case  of  the  servant  and  the  case 
of  the  employer,  if  the  latter  had  thought  proper  to  go  in  person;  nor 
between  the  case  of  a  person  engaged  in  doing  the  work  for  the  deifend- 
ant  pursuant  to  his  employment,  and  that  of  a  person  testing  the  work 
which  he  had  stipulated  with  the  defendant  to  be  paid  for  if  it  stood 
the  test;  whereby  impliedly  the  workman  was  to  be  allowed  an  on- 
stand  to  apply  that  test,  and  a  reasonable  opportunity  of  doing  so. 
Any  duty  to  enable  the  workman  to  do  the  work  in  safety,  seems 
equally  to  exist  during  the  accessory  employment  of  testing:  and  any 
duty  to  provide  for  the  safety  of  the  master  workman,  seems  equally 
owing  to  the  servant  workman  whom  he  may  lawfully  send  in  his 
place. 

It  is  observable,  that,  in  the  case  of  Southcote  v.  Stanley,  1  H.  &  N. 
247,  25  L.  J.  (Ex.)  339,  upon  which  much  reliance  was  properly 
placed  for  the  defendant,  Alderson,  B.,  drew  the  distinction  between  a 
bare  licensee  and  a  person  ccuning  on  business,  and  Bramwell,  B., 
between  active  negligence  in  respect  of  imusual  danger  known  to  the 
host  and  not  to  the  guest,  and  a  bare  defect  of  construction  or  repair, 
which  the  host  was  only  negligent  in  not  finding  out  or  anticipating 
the  consequence  of. 

There  is  considerable  resemblance,  though  not  a  strict  analogy,  be- 
tween this  class  of  cases  and  those  founded  upon  the  rule  as  to  volun- 
tary loans  and  gifts,  that  there  is  no  remedy  against  the  lender  or  giver 
for  damage  sustained  f rcmi  the  loan  or  gift,  except  in  case  of  imusual 
danger  known  to  and  concealed  by  the  lender  or  giver.  Macarthy  v. 
Younge,  6  H.  &  N.  329,  30  L.  J.  (Ex.)  227.  The  case  of  the  carboy 
of  vitriol  *  was  one  in  which  this  Court  held  answerable  the  bailor  of 
an  imusually  dangerous  chattd,  the  quality  of  which  he  knew,  but  did 
not  tell  the  bailee,  who  did  not  know  it,  and,  who  as  a  proximate  con- 
sequence of  his  not  knowing,  and  without  any  fault  on  his  part, 
suffered  damage. 

The  cases  referred  to  as  to  the  liability  for  accidents  to  servants  and 
persons  employed  in  other  capacities  in  a  business  or  profession  which 
necessarily  and  obviously  exposes  them  to  danger,  as  in  Seymour  v. 

»  Farrant  v.  Barnes,  11  C.  B.  n.  s.  553;  31  L.  J.  (C.  P.)  137. 


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SECT.  VIO  INDEBMAUR  V.  DAMES  197 

Maddox,  16  Q.  B.  326,  also  have  their  special  reasoDs.  The  servant 
or  other  person  so  employed  is  supposed  to  undertake  not  only  all  the 
ordinary  risks  of  the  employment  into  which  he  enters,  but  also  aH 
extracH^inary  risks  which  he  knows  of  and  tiiinks  proper  to  incur, 
including  those  caused  by  the  misconduct  of  his  fellow-servants,  not 
however  including  those  which  can  be  traced  to  mere  breach  of  duty 
on  the  part  of  the  master.  In  the  case  of  a  statutory  duty  to  fence, 
even  the  knowledge  and  reluctant  submission  of  the  servant  who  has 
sustained  an  injury,  are  held  to  be  only  elements  in  detennining 
whether  there  has  been  contributory  n^^Ugence:  how  far  this  is  the 
law  between  master  and  servant,  where  there  is  danger  known  to 
the  servant,  and  no  statute  for  his  iHX>tectioQ,  we  need  not  now  con- 
sider, because  the  plaintiff  in  this  case  was  not  a  servant  of  the  defend- 
ant, but  the  servant  of  the  patentee.  Hie  question  was  adverted  to, 
but  not  decided,  in  Clarke  v.  Holmes,  7  H.  &  N.  937,  31  L.  J.  (Ex.) 
356.* 

The  authorities  respecting  guests  and  other  bare  licensees,  and  those 
respecting  servants  and  diiere  who  consent  to  incur  a  risk,  being  there- 
fore inapfdicable,  we  are  to  consider  what  is  the  law  as  to  the  duty  of 
the  occupier  of  a  building  with  reference  to  persons  resorting  thereto 
in  the  course  of  business,  upon  his  invitation,  express  or  implied.  The 
conmion  case  is  that  of  a  customer  in  a  shop:  but  it  is  obvious  that 
this  is  only  one  of  a  class;  for,  whether  the  customer  is  actually 
chaffering  at  the  time,  or  actually  buys  or  not,  he  is,  according  to  an 
undoubted  coiuse  of  authority  and  practice,  entitled  to  the  exercise  of 
reasonable  care  by  the  occupier  to  prevent  damage  from  imusual 
danger,  of  which  the  occupier  knows  or  ou^t  to  know,  sucb  as  a 
trap-door  left  open,  unfenced,  and  unlighted:  Lancaster  Canal  Com- 
pany V,  Pamaby,  11  Ad.  4  E.  223,  3  P.  4  D.  162;  per  cur.  ChajMnan 
V.  Rothwell,  E.  B.  4  E.  168,  27  L.  J.  (Q.  B.)  315,  where  Southcote  v. 
Stanley,  1  H.  4  N.  247,  25  L.  J.  (Ex.)  339,  was  cited,  and  the  Lord 
Chief  Justice,  then  Erie,  J.,  said:  "  The  distinction  is  between  the 
case  of  a  visitor  (as  the  plaintiff  was  in  Southcote  v.  Stanley),  who 
must  take  care  of  himself,  and  a  custcxner,  who,  as  one  of  the  public, 
is  invited  for  the  purposes  of  business  carried  on  by  the  defendant.*' 
This  protection  does  not  depend  upon  the  fact  of  a  contract  being 
entered  into  in  the  way  of  the  shopkeeper's  business  during  the  stay 
of  the  customer,  but  upon  the  fact  that  the  customer  has  come  into 
the  shop  in  pursuance  of  a  tacit  invitation  given  by  the  shopkeeper, 
with  a  view  to  business  which  concerns  himself.  And,  if  a  customer 
were,  after  buying  goods,  to  go  back  to  the  shop  in  order  to  complain 
of  the  quality,  or  that  the  change  was  not  right,  he  would  be  just  as 
much  tibere  upon  business  which  concerned  the  shopkeeper,  and  as 
much  entitled  to  protection  during  this  accessory  visit,  though  it 
might  not  be  for  the  shopkeeper's  benefit,  as  during  the  principal  visit, 

»  And  see  Bolch  v.  Smith,  7  H.  &  N.  736;  31  L.  J.  (Ex.)  201. 


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198  INDERMAUR  V.  DAMES  [CHAP.  H. 

which  was.  And  if,  instead  of  going  himself,  the  customer  were  to 
send  his  servant,  the  servant  would  be  entitled  to  the  same  considera- 
tion as  the  master. 

The  class  to  which  the  customer  belongs  includes  persons  who  go 
not  as  mere  volunteers,  or  licensees,  or  guests,  or  servants,  or  persons 
whose  employment  is  such  that  danger  may  be  considered  as  bargained 
for,  but  who  go  upon  business  which  concerns  the  occupier,  and  upon 
his  invitation,  express  or  implied. 

And,  with  respect  to  such  a  visitor  at  least,  we  consider  it  settled 
law,  that  he,  using  reasonable  care  on  his  part  for  his  own  safety,  is 
entitled  to  expect  that  the  occupier  shall  on  his  part  use  reasonable 
care  to  prevent  damage  from  imusual  danger  which  he  knows  or  ought 
to  know;  and  that,  where  there  is  evidence  of  neglect,  the  question 
whether  such  reasonable  care  has  been  taken,  by  notice,  lighting, 
guarding  or  otherwise,  and  whether  there  was  contributory  negligence 
in  the  suJBferer,  must  be  determined  by  a  jury  as  matter  of  fact. 

In  the  case  of  Wilkinson  v.  Fairrie,  1  H.  &  C.  633,  32  L.  J.  (Ex.) 
73,  relied  upon  for  the  defendant,  the  distinction  was  pointed  out  be- 
tween ordinary  accidents,  such  as  falling  down  stairs,  which  ought  to 
be  imputed  to  the  carelessness  or  misfortune  of  the  suflFerer,  and  acci- 
dents from  imusual,  covert  danger,  such  as  that  of  falling  down  into 
a  pit. 

It  was  ably  insisted  for  the  defendant  that  he  could  only  be  bound  to 
keep  his  place  of  business  in  the  same  condition  as  other  places  of  busi- 
ness of  the  like  kind,  according  to  the  best  known  mode  of  construc- 
tion. And  this  argument  seems  conclusive  to  prove  that  there  was  no 
absolute  duty  to  prevent  danger,  but  only  a  duty  to  make  the  place  as 
little  dangerous  as  such  a  place  could  reasonably  be,  having  regard  to 
the  contrivances  necessarily  used  in  carrying  on  the  business.  But  we 
think  the  argument  is  inapplicable  to  the  facts  of  this  case:  first, 
because  it  was  not  shown,  and  probably  could  not  be,  that  there  was 
any  usage  never  to  fence  shafts;  secondly,  because  it  was  proved,  that, 
when  the  shaft  was  not  in  use,  a  fence  might  be  resorted  to  without 
inconvenience;  and  no  usage  could  establish  that  what  was  in  fact 
imnecessarily  dangerous  was  in  law  reasonably  safe,  as  against  persons 
towards  whom  there  was  a  duty  to  be  careful. 

Having  fully  considered  the  notes  of  the  Lord  Chief  Justice,  we 
think  there  was  evidence  for  the  jmy  that  the  plaintiff  was  in  the  place 
by  the  tacit  invitation  of  the  defendant,  upon  business  in  which  he  was 
concerned;  that  there  was  by  reason  of  the  shaft  unusual  danger 
known  to  the  defendant;  and  that  the  plaintiff  sustained  damage  by 
reason  of  that  danger,  and  of  the  neglect  of  the  defendant  and  his 
servants  to  use  reasonably  sufficient  means  to  avert  or  warn  him  of 
it:  and  we  cannot  say  that  the  proof  of  contributory  negligence  was 
so  clear  that  we  ought  on  this  ground  to  set  aside  the  verdict  of  the 
jury. 


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SECT.  VI.]  INDERBiAUR  V.  DAMES  199 

As  for  the  argument  that  the  plaintiflf  contributed  to  the  accident  by 
not  following  his  guide,  the  answer  may  be  that  the  guide,  knowing 
the  place,  ought  rather  to  have  waited  for  him;  and  this  point,  aa 
matter  of  fact,  is  set  at  rest  by  the  verdict. 

For  these  reasons,  we  think  there  was  evidence  of  a  cause  of  action 
in  respect  of  which  the  jury  were  properly  directed;  and,  as  every 
reservation  of  leave  to  enter  a  nonsuit  carries  with  it  an  implied  con- 
dition that  the  Court  may  amend,  if  necessary,  in  such  a  manner  as  to 
raise  the  real  question,  leave  ought  to  be  given  to  the  plaintiflf,  in  the 
event  of  the  defendant  desiring  to  appeal  or  to  bring  a  writ  of  error,  to 
amend  the  declaration  by  stating  the  facts  as  proved,  —  in  eflfect,  that 
the  defendant  was  the  occupier  of  and  carried  on  business  at  the  place; 
that  there  was  a  shaft,  very  dangerous  to  persons  in  the  place,  which 
the  defendant  knew  and  the  plaintiflf  did  not  know;  that  the  plaintiflf, 
by  invitation  and  permission  of  the  defendant,  was  near  the  shaft, 
upon  business  of  the  defendant,  in  the  way  of  his  own  craft  as  a  gas- 
fitter,  for  hire,  &c.,  stating  the  circumstances,  the  negligence,  and 
that  by  reason  thereof  the  plaintiflf  was  injured.  The  details  of  the 
amendment  can,  if  necessary,  be  settled  at  chambers. 

As  to  the  motion  to  arrest  the  judgment,  for  the  reasons  already 
given,  and  upon  condition  that  an  amendment  is  to  be  made  if  and 
when  required  by  the  defendant,  it  will  follow  the  fate  of  the  motion 
to  enter  a  nonsuit. 

The  other  arguments  for  the  defendant,  to  which  we  have  not  par^ 
ticularly  adverted,  were  no  more  than  objections  to  the  verdict  as 
being  against  the  evidence:  but  it  would  be  wrong  to  grant  a  new 
trial  without  a  reasonable  expectation  that  another  jury  might  take  a 
diflferent  view  of  the  facts;  and,  as  the  Lord  Chief  Justice  does  not 
express  any  dissatisfaction  with  the  verdict,  the  rule  upon  this,  the 
only  remaining  ground,  must  also  be  discharged. 

Rule  discharged.^ 

AflSrmed  in  Exchequer  Chamber,  L.  R.  2  C.  P.  311. 

1  Bennett  v.  Louisville  R.  Co^  102  U.  S.  677;  Alabama  Steel  Co.  v.  Clements, 
146  Ala.  259:  Hobart  Tie  Co.  v.  Keck,  89  Ark.  122;  Whitney  v.  New  York  R.  Co., 
87  Conn.  623;  Christopher  v,  Russell,  63  Fla.  191;  Southern  Express  Co.  v.  Wil- 
liamson, 66  Fla.  286:  Horton  v.  Harvey,  119  Ga.  219;  Latham  v.  Roach,  72  111. 
179;  Spry  Lumber  Co.  v,  Duggan,  182  111.  218;  Calvert  v.  Springfield  Electric  Co., 
231  111.  290;  Laurie  v.  McCuilough,  174  Ind.  477;  Young  v.  People's  Gas  Co.,  128 
la.  290;  Anderson  v.  Hair,  103  Ky.  196;  Carleton  v,  Franconia  Iron  Co.,  99  Mass. 
216;  McDermott  v.  Sallaway,  198  Mass.  517;   Marston  v,  Reynolds,  211  Mass. 


66  Minn.  460;  Kean  v.  Schoening,  103  Mo.  App.  77;  Shaw  v.  Goldman,  116  Mo. 
App.  332:  Montague  v.  Hanson,  38  Mont.  376;  Land  v.  Fitzgerald,  68  N.  J.  Law, 
28:  Smith  v,  Jackson,  70  N.  J.  Law,  183:  Ackert  v.  Lansing,  59  N.  Y.  646;  Weller 
V.  Consolidated  Gas  Co.,  198  N.  Y.  98;  Wilson  v.  Olano.  28  App.  Div.  448;  Withers 
V.  Brooklyn  Exchange,  106  App.  Div.  255;  Higgins  v.  Kuppert,  124  App.  Div.  530; 
Massey  v.  Seller,  45  Or.  267;  Newingham  v.  Blair,  232  Pa.  St.  511;  Freer  v.  Cam- 
eron, 4  Rich.  Law,  228;  League  v,  Stradley,  68  S.  C.  515;  Richmond  R.  Co.  v. 


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200  MCNEE  V.  COBURN  TROLLEY  TRACK  CO.       [CHAP.  H. 

McNEE  V.  COBURN  TROLLEY  TRACK  COMPANY 

SuFBBME  Judicial  Cottbt,  Massachusetts,  Fsbruabt  24, 1896. 

Reported  in  170  MassaekuseUa  Reports,  283. 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  by  the  fall  of 
an  elevator  upon  which  he  was  riding  while  in  the  defendant's  employ. 
Trial  in  the  Superior  Court,  before  Mason,  C.  J.,  who  directed  the  jury 
to  return  a  vwdict  for  the  defendant;  and  reported  the  case  for  the 
determination  of  this  court.  If  the  case  should  have  been  submitted 
to  the  jury,  judgment  was  to  be  entered  for  the  plaintiff  in  a  sum 
named;  otherwise,  judgment  on  the  verdict.  The  facts  sufficiently 
appear  in  the  opinion. 

Moore,  94  Va.  493:  Smith  v.  Parkersburg  AflB'n,  48  W.  Va.  232;  Landry  v.  Great 
Northern  R.  Co.,  152  Wis.  379  Accord, 

As  to  chUd  aeoompanying  itwUee:  see  Butler  9.  Chicago  R.  Co.,  155  Mo.  App. 
287. 

LiabUity  to  children  invitees:  see  Miller  v.  Peck  Dry  Goods  Co.,  104  Mo.  App. 
609:  Houck  P,  Chicago  R.  Co.,  116  Mo.  App.  659. 

IdabilUy  where  plaintiff  departs  from  or  goes  beyond  the  permission  or  invikUion: 
New  York  Oil  Co.  v,  Pusev,  211  Fed.  622;  Louisville  R.  Co.  v.  Sides,  129  Ala.  399; 
First  Nat.  Bank  v.  Chandler,  144  Ala.  286;  Coberth  v.  Great  Atlantic  Co.,  36  App. 
D.  C.  569;  Etheredge  v.  Central  R.  Co.,  122  Ga.  853:  Bennett  w.  Buttcrfield.  112 
Mich.  96;  Hutchinson  v.  Cleveland  Iron  Co.,  141  Mich.  346;  Trask  v.  Shotwell,  41 
Minn.  66;  Ryerson  v,  Bathgate,  67  N.  J.  Law,  337:  GilfiUan  v,  German  Hospital. 
115  App.  Div.  48;  Castoriano  v.  Miller,  15  Misc.  254;  Weaver  v,  Carnegie  Steel 
Co.,  223  Pa.  St.  238;  Hagan  v.  Delaware  Steel  Co.,  240  Pa.  St.  222:  Pierce  v. 
Whitcomb,  48  Vt.  127;  Peake  v.  Buell,  90  Wis.  508;  Lehmann  v.  Amsterdam 
Coffee  Co.,  146  Wis.  213. 

But  compare  Pauckner  v,  Wakem,  231  HI.  276. 

Use  for  purpose  not  intended  by  owner  or  occupier:  Thiele  v,  McManus,  3  Ind. 
^p.  132:  Smith  v.  Trimble,  111  Ky.  861;  Ferguson  o.  Feixuson,  (Ky.)  114  S.  W. 
297:  Speicher  v.  New  York  Tel.  Co.,  60  N.  J.  Law,  242,  59  N.  J.  Law,  23;  Clark  t;. 
FeUhaber,  106  Va.  803.    See  also  Urban  v,  Focht,  231  Pa.  St.  623. 

Invitee  of  licensee:  see  Brehmer  v,  Lyman,  71  Vt.  98. 

In  Cox  V.  Coidson,  [1916]  2  K.  B.  177,  a  spectator  in  a  theatre  was  injured  by 
the  discharge  of  a  pistol  during  a  performance.  Bankes,  L.  J.,  said:  ''  It  seems  to 
me  obvious  that  the  duty  of  the  mvitor  in  a  case  like  the  present  is  not  only  con- 
fined to  the  state  of  the  premises,  using  that  expression  as  extending  to  the  struc- 
ture merely.  The  duty  must  to  some  extent  extend  to  the  performance  given  in  the 
structure,  because  the  performance  may  be  of  such  a  kind  as  to  render  the  structure 
an  unsafe  place  to  be  m  whilst  the  performance  is  going  on,  or  it  may  be  of  such  a 
kind  as  to  render  the  structure  unsafe  unless  some  obvious  precaution  is  taken.  As 
an  illustration  under  the  latter  head  I  would  instance  a  case  where  a  tight-rope 
dancer  performs  on  a  rope  stretched  over  the  heads  of  the  audience.  In  such  a  case 
the  provision  of  a  net  imder  the  rope  to  protect  the  audience  in  case  the  performer 
fell  seems  so  obvious  a  precaution  to  take  that  in  the  absence  of  it  the  premises 
could  not  be  said  to  be  reasonably  safe.  In  the  present  case  the  performance  was 
one  which  included  a  discharge  of  pistols  loaded  with  blank  ammunition  as  one  of 
the  incidents.  If  the  pistols  had  been  properly  loaded,  it  is  difficult  to  see  that  the 
incident  exposed  any  member  of  the  audience  m  any  ordinarily  constructed  theatre 
to  any  danger.  On  the  other  hand,  if  any  one  of  the  pistols  was  not  properly 
loaded,  what  would  otherwise  be  a  safe  penormance  became  an  exceedingly  dan- 
gerous one,  and  a^  part  of  the  auditorium  might  be  rendered  an  extremely  unsafe 
place  to  be  in.  Wnether  the  circumstances  were  such  that  any  negligence  or  want 
of  proper  care  can  be  attributed  to  the  appellant  in  relation  to  the  loading  of  the 
pistol  or  in  relation  to  the  anmiunition  supplied  for  that  purpose  has  not  been 
myestigated.  and  I  do  not  think  that  justice  can  be  done  between  the  parties  until 
thiH  is  done. 


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SECT.  VI.]   MCNEB  V.  COBURN  TBOLLET  TRACK  CO.        201 

The  case  was  sulnmtted  on  briefs  to  all  the  justices. 

Allen,  J.  The  general  condition  of  the  elevator  was  such  that  a 
jury  might  find  that  the  defendant  would  be  negligent  in  continuing 
its  use  for  carrjring  workmen  up  and  down  while  engaged  in  their 
work,  if  this  was  done  without  warning  them  of  the  risk.  It  is  true 
that  the  particular  defect  which  caused  the  accident  was  not  open  to 
observation  or  easy  to  discover.  But  there  was  evidence  tending  to 
show  that  the  accident  was  caused  by  the  use  of  the  elevator  while  it 
was  in  a  condition  which  rendered  it  unsuitable  for  use,  and  that  the 
defendant  was  fairly  put  upon  inquiry  as  to  its  safety;  and  that  the 
defendant's  duty  in  this  respect  was  different  from  and  greater  than 
that  of  the  workmen  themselves. 

The  question  then  remains  whether  the  posting  of  the  notices  in 
the  elevator  *  showed  such  a  performance  by  the  defendant  of  its  duty 
of  warning  or  cautioning  the  workmen,  or  such  contributory  negli- 
gence or  assumption  of  the  risk  on  the  part  of  the  plaintiff,  as  to  en- 
title the  defendant  to  have  the  case  withdrawn  from  the  jury.  While 
upon  the  evidence  reported  a  verdict  for  the  defendant  would  be  more 
satisf actory^  we  are  unable  to  hold  that  the  defendant  was  entitled  to 
such  verdict  as  a  matter  of  law.  As  a  general  rule,  the  suflSciency  of 
such  warning  or  caution  is  a  question  of  fact  for  the  jury.  Indermaur 
V.  Dames,  L.  R.  1  C.  P.  274;  s.  c.  L.  R.  2  C.  P.  311.  It  is  true  that 
the  plaintiff  was  not  at  liberty  to  shut  his  eyes  in  order  to  avoid  read- 
ing a  plain  notice  of  warning.  If  it  be  assumed  that  the  plaintiff  must 
be  held  chargeable  with  a  knowledge  of  the  contents  of  the  notice, 
or  at  least  that  the  defendant  performed  its  duty  of  cautioning  the 
workmen  by  posting  the  notices  in  the  elevator,  we  think  the  plain- 
tiff still  had  the  right  to  go  to  the  jury  upon  the  question  whether 
the  notices  remained  in  force  at  the  time  of  the  accident,  or  had  be- 
come a  dead  letter.  There  was  evidence  tending  to  show  that  the 
notices  were  put  in  the  elevator  a  long  time  before  the  accident  by  a 
former  treasurer  whose  connection  with  the  company  had  then  ceased, 
that  they  had  become  soiled  and  somewhat  indistinct  and  torn,  and 
that  all  of  the  defendant's  workmen,  including  the  general  superin- 
tendent of  the  building,  were  in  the  regular  habit  of  using  the  elevator 
to  carry  them  up  and  down,  and  had  been  so  for  some  months  prior 
to  the  accident.  There  was  room  for  a  legitimate  argument  that  the 
defendant  could  net  have  intended  to  keep  such  a  rule  in  force  for- 
ever, and  to  furnish  an  elevator  for  permanent  use  by  the  men  at  their 
own  sole  risk;  and  that  the  defendant  expected  the  men  to  use  it  while 
they  were  engaged  in  its  work,  and  that  it  was  for  the  defendant's  ad- 
vantage that  they  should  do  so,  from  the  saving  of  time  thereby  se- 
cured. It  might  be  f oimd  that  the  plaintiff,  even  if  he  knew  of  the  terms 
of  the  notice,  might  nevertheless  assmne  that  its  force  had  ceased. 

^  These  notices  read  as  follows:  ''  All  persons  riding  on  this  elevator  do  so  at 
their  own  risk." 


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202  GARFIELD  COAL  CO.  V.  ROCKLAND  LIME  CO.      [CHAP.  H. 

If  one  who  has  posted  a  notice  of  entire  prohibition  permits  it  to  be 
habitually  disregarded,  as,  for  instance,  a  notice  not  to  ride  on  the 
platform  of  a  street  railway  car,  or  in  the  baggage  car  of  a  train,  a 
practical  invitation  to  violate  it  may  be  inferred  from  habitual  usage 
which  is  known  to  him.  Long  continued  practice  to  the  contrary  may 
have  the  effect  to  supersede  or  show  a  waiver  of  the  rule.  O'Donnell 
V.  Allegheny  Valley  Railroad,  59  Penn.  St.  239;  Pennsylvania  Rail- 
road V.  Langdon,  92  Penn.  St.  21 ;  Waterbury  v.  New  York  Central  & 
Hudson  River  Railroad,  17  Fed.  Rep.  671.  The  notice  in  the  present 
case  was  not  one  of  entire  prohibition,  but,  in  the  opinion  of  a  majority 
of  the  court,  the  plaintiff  upon  the  evidence  had  a  right  to  go  to  the 
jury  upon  the  question  whether  it  still  remained  in  force;  and, 
according  to  the  terms  of  the  report,  there  must  be 

Judgment  for  the  plaintiff.^ 


GARFIELD  COAL  CO.  v.  ROCKLAND  LIME  CO. 

Supreme  Judicial  Court,  Massachusetts,  June  23,  1903. 

Reported  in  1S4  MaasajchuaeUs  ReporUf  60. 

Tort,  by  the  owner  of  the  coal  barge  Western  Belle,  for  injury  to 
'  that  vessel  by  groimding  on  a  ledge  of  rock  embedded  in  the  mud  at 
the  bottom  of  the  defendant's  dock  at  Rockland,  Maine. 

In  the  Superior  Court  the  case  was  tried  by  a  judge  without  a  jury. 

**  It  appeared  at  the  trial  that  defendant  was  part  owner  of  a  dock, 
and  used  it  for  the  discharge  of  cargoes  of  coal  consigned  to  it.  Plain- 
tiff had  sold  coal  to  the  defendant,  and  sent  it  a  barge  loaded  there- 
with." « 

The  plaintiff  requested  the  judge  to  make  certain  rulings,  including 
the  following:  — 

"  4.  It  is  not  necessary  for  the  plaintiff  to  show  that  the  defendant 
knew  of  the  ledge;  it  is  suflScient  if  its  existence  could  have  been 
discovered  by  reasonable  diligence." 

The  judge  refused  to  make  any  of  the  rulings,  and  found  for  the 
defendant.    The  plaintiff  excepted. 

Lathrop,  J.  .  .  .  The  general  rules  of  law  which  are  applicable  in 
cases  of  this  character  are  the  same  in  England  and  in  this  coimtry, 
and  are  the  same  at  common  law  and  in  admiralty.  They  are  as  well 
stated  in  the  case  of  Nickerson  v.  Tirrell,  127  Mass.  236,  239,  as  per- 
haps in  any  case:  "  The  owner  or  occupant  of  a  dock  is  liable  in  dam- 

'  Craney  v.  Union  Stockyards  CJo.,  240  111.  602;  Kentucky  Distilleries  Co.  v, 
Leonard,  (Kv.)  79  S.  W.  281  Accord.  But  see  Burns  v.  Boston  R.  Ck).,  183  Mass. 
96;  Pike  v.  Boston  R.  Co.,  192  Mass.  426. 

'  Statement  rewritten.  Only  so  much  of  the  case  is  given  as  relates  to  a  single 
point.  The  passage  in  quotation  marks  is  taken  from  the  report  of  this  case  in  67 
Northeastern  Reporter,  863. 


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SECT.  VI.]     GABFIELD  COAL  CO.  V.  ROCKLAND  LIME  CO.  203 

ages  to  a  person  who,  by  his  invitation  express  or  implied,  makes  use 
of  it,  for  an  injury  caused  by  any  defect  or  unsafe  condition  of  the 
dock  which  the  occupant  negligently  causes  or  permits  to  exist,  if 
such  person  was  himself  in  the  exercise  of  due  care.  Such  occupant 
is  not  an  insm^r  of  the  safety  of  his  dock,*  but  he  is  required  to  use 
reasonable  care  to  keep  his  dock  in  such  a  state  as  to  be  reasonably 
safe  for  use  by  vessels  which  he  invites  to  enter  it,  or  for  which  he 
holds  it  out  as  fit  and  ready.  If  he  fails  to  use  such  due  care,  if  there 
is  a  defect  which  is  known  to  him,  or  which  by  the  use  of  ordinary 
care  and  diligence  should  be  known  to  him,  he  is  guilty  of  negligence 
and  liable  to  the  person  who,  using  due  care,  is  injured  thereby. 
Wendell  v.  Baxter,  12  Gray,  494;  Carleton  v,  Franconia  Iron  4  Steel 
Co.,  99  Mass.  216;  Thompson  v.  Northeastern  Railway,  2  B.  &  S.  106; 
Mersey  Docks  v,  Gibbs,  L.  R.  1  H.  L.  93."  Other  cases  bearing  upon 
this  point  are:  Smith  v.  Burnett,  173  U.  S.  430;  Barber  v,  Abendroth, 
102N.  Y.  406;  Barrett  v.  Black,  56  Mame,  498;  Sawyer  v.  Oakman, 
1  Lowell,  134,  s.  c.  7  Blatchf .  290;  The  John  A.  Berkman,  6  Fed.  Rep. 
535;  Pennsylvania  Railroad  v.  Atha,  22  Fed.  Rep.  920;  Smith  v, 
Havemeyer,  36  Fed.  Rep.  927;  Manhattan  Transportation  Co.  v. 
Mayor,  37  Fed.  Rep.  160;  Union  Ice  Co.  v.  Crowell,  55  Fed.  Rep.  87. 
The  rule  is  the  same  in  England.  Gibbs  v.  Liverpool  Docks,  3  H.  & 
N.  164;  8.  c.  nom.  Mersey  Docks  v.  Gibbs,  11  H.  L.  Cas.  686,  and 
L.  R.  1  H.  L.  93;  The  Moorcock,  13  P.  D.  157,  and  14  P.  D.  64. 

It  is  clear  that  the  vessel  was  in  the  defendant's  dock  on  business,  and 
was,  therefore,  there  by  invitation.  The  judge  has  found,  and  the  evi- 
dence shows,  that  the  injury  was  caused  by  a  ledge  of  rocks  embedded 
in  the  mud  at  the  bottom  of  the  dock.  The  questions  of  fact  which 
he  did  not  pass  upon  are  whether  the  master  was  in  the  exercise  of 
due  care,  and  whether  the  defendant  knew  of  the  defect  or  could 
by  the  exercise  of  reasonable  care  and  diligence  have  ascertained  its 
existence. 

The  fourth  request  should  have  been  given.   See  cases  cited  above. 

Exceptions  sustained^ 

1  Bell  V,  Central  Nat.  Bank,  28  App.  D.  C.  680;  Connolly  w.  Des  Moines  Inv. 
Co.,  130  la.  633;  Branham  v,  Buckley,  158  Ky.  848;  Schnatterer  w.  Bamberger,  81 
N.  J.  Lawj  558  Accord, 

*  Washington  Market  Co.  v,  Clagett.  19  App.  D.  C.  12:  Woods  v.  Trinity 
Parish.  21  D.  C.  540;  Nave  v.  Flack,  90  Ind.  205;  Ford  v,  Crider,  (Ky.)  74  S.  W. 
661;  Perrine  v.  Union  Stockyards  Co.,  81  Neb.  790;  Kenny  v.  Hall  Realty  Co..  85 
Misc.  439;  Glase  v.  City,  169  Pa.  St.  488  Accord,  Compare  Larson  v.  Red  River 
Transportation  Co.,  Ill  Minn.  427;  Eisenberg  v.  Missouri  R.  Co.,  33  Mo.  App.  85; 
Henkel  v.  Murr,  31  Hun,  28;  Alperin  v,  Earle,  55  Hun,  211. 


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204  INDIANAPOLIS  ST.  RY.  CO.  V.  DAWSON         [CHAP.  H. 

INDIANAPOLIS  STREET  RAILWAY  COMPANY  v.  DAWSON 

Appellate  Court,  Indiana,  NovEBiBER  17,  1903. 

Reported  in  31  Indiana  Appellate  Court  ReportSf  605. 

From  Superior  Court  op  Marion  County;  Vincent  G.  CliflFord, 
Special  Judge. 

Action  by  George  J.  Dawson  against  the  Indianapolis  Street  Rail- 
way Company.    From  a  judgment  for  plaintiff,  defendant  appeals. 

Rosy,  J.  Action  by  appellee.  Verdict  and  judgment  for  $500. 
Demurrers  to  first  and  second  paragraphs  of  complaint  overruled. 
Motion  for  a  new  trial  overruled. 

It  is  averred  in  the  first  paragraph  of  complaint,  in  substance,  as 
extracted  from  a  multitude  of  words,  that  appellant  was  on  August 
25,  1901,  a  corporation  operating  a  street  railway  system  in  Indian- 
apolis and  was  a  common  carrier  for  hire;  that  it  owned  a  park  near 
said  city,  and  maintained  certain  attractions  therein  to  induce  per- 
sons to  ride  on  its  cars,  inviting  them  to  said  park;  that  on  the  day 
named  it  gave  a  free  band  concert  therein,  the  same  having  been 
extensively  advertised  prior  thereto;  that  on  said  day  appellee,  ac- 
companied by  a  lady,  took  passage  upon  one  of  its  regular  cars,  and 
was  conveyed  to  said  park;  that  a  large  nimiber  of  persons  were  daily 
transported  thereto,  among  them  a  large  number  of  lawless  persons 
who  were  hostile  to  colored  people,  of  whom  appellee  was  one,  their 
names  being  imknown  to  plaintiiOf,  and  who  had  long  before  said  day 
entered  into  a  conspiracy  "to  suppress,  molest,  assault,  and  insult 
colored  people  generally  who  might  visit  said  park; "  that  in  pur- 
suance of  such  conspiracy  said  persons  assaulted  and  beat  appellee, 
and  drove  him  from  the  park;  that  he  and  his  companion  demeaned 
themselves  in  a  ladylike  and  gentlemanly  manner,  but  upon  arriving 
at  the  park  were  set  upon  by  a  large  number  of  white  boys  and  young 
men,  appellee  being  assaulted  and  beaten  by  them;  that  appellant 
had,  and  had  had  for  a  long  time  prior  to  said  day,  full  notice  and 
knowledge  of  said  conditions,  and  of  the  unlawful  purposes  aforesaid, 
and  of  acts  of  violence  committed  thereunder,  but  took  no  steps  to 
prevent  such  conduct;  that  early  in  the  afternoon  of  said  day  said 
lawless  men  and  boys  began  marching  and  drilling  openly  in  said 
park  preparatory  to  an  attack  upon  any  colored  male  person  who 
should  be  found  there  later,  ajppeUant  taking  no  steps  to  prevent  such 
conduct  or  to  notify  colored  people  of  the  danger,  although  it  had 
knowledge  thereof;  that  neither  appellant  nor  its  officers  made  any 
objection  to  the  open  and  notorious  gathering  of  white  men  and  boys 
for  the  unlawful  purpose  stated;  that  it  was  negligent  and  indifferent 
in  not  employing  and  using  a  sufficient  number  of  guards  and  police- 
men to  maintain  the  peace;  that  two  of  its  guards  or  policemen  aided 
and  abetted  the  wrong  done  appellee  by  standing  by  when  he  was 


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SECT.  VI.]         INDIANAPOUS  ST.  BY.  CO.  V.  DAWSON  205 

being  unmercifully  beaten  by  said  crowd  of  lawless  white  men  and 
boys,  and  oflfering  him  no  assistance,  although  they  were  able  to  do 
so,  and  could  have  prevented  injury  to  him.  "•  Wherefore,  by  reason 
of  the  matters  therein  stated,  the  plaintiff  has  been  damaged,''  etc. 
The  second  paragraph  of  complaint  is  somewhat  more  extended  than 
the  first  one,  but  for  the  purpose  of  this  opinion  the  statement  made 
is  sufficient. 

The  pleading  charges  appellant  with  notice  of  the  alleged  conspir- 
acy, with  acquiescence  therein,  and,  by  its  guards  or  policemen,  with 
passive  participation  in  the  actual  assault  made  upon  appellee. 
"  When  one  expressly  or  by  implication  invites  others  to  come  upon  his 
premises,  whether  for  business  or  any  other  purpose,  it  is  his  duty 
to  be  reasonably  sure  that  he  is  not  inviting  them  into  danger,  and  to 
that  end  he  must  exercise  ordinary  care  and  prudence  to  render  the 
place  reasonably  safe  for  the  visit.*'  Cooley,  Torts  (2d  ed.),  718; 
Howe  V.  Ohmart,  7  Ind.  App.  32, 38;  Richmond,  etc.,  R.  Co.  v.  Moore, 
94  Va.  493, 37  L.  R.  A.  258;  North  Manchester,  et<5.,  Assn.  v.  Wilcox, 
4  Ind.  App.  141;  Penso  v.  McC!onnick,  125  Ind.  116,  21  Am.  St. 
211. 

No  case  has  been  cited  or  found  where  the  premises  upon  which  the 
injury  complained  of  occurred,  and  to  which  the  ccmiplainant  came  by 
invitation,  were  made  unsafe  Uirough  a  conspiracy  of  the  nature  set  up 
herein.  Danger  usually  has  been  attributed  to  some  defect  in  the 
premises  themselves.  But  as  a  matter  of  principle  it  is  quite  as  repre- 
hensible to  invite  one  knowing  an  enemy  is  awaiting  him  with  the 
intent  to  assault  and  beat  him  as  it  would  be  to  invite  him  without 
having  made  the  floor  or  the  stairway  secure.  One  attending  an  agri- 
cultural fair  in  response  to  a  general  invitation  extended  to  the  public 
has  been  awarded  damages  against  the  association  where  his  horse 
was  killed  by  target  shooting  upon  a  part  of  the  ground  allowed  for 
such  pmpose.    Conradt  v.  Clauve,  93  Ind.  476,  47  Am.  Rep.  388. 

Recoveries  have  also  been  sustained :  When  spectators  rushed  upon 
a  race-track,  causing  a  collision  between  horses  being  driven  thereon. 
North  Manchester,  etc.,  Assn.  v.  Wilcox,  4  Ind.  App.  141.  When  an 
opening  was  left  in  a  fence  surrounding  a  race-track  through  which 
one  of  the  horses,  running,  went  among  the  spectators.  Windeler  t^. 
Rush  Coimty  Fair  Assn.,  27  Ind.  App.  92.  Where  horses  were  started 
on  a  race-track  in  opposite  directions  at  the  same  time,  causing  colli- 
sion. Fairmount,  etc.,  Assn.  v.  Downey,  146  Ind.  503.  Where  a  horse 
with  a  vicious  habit  of  track  bolting  was  permitted  to  run  in  a  race, 
such  horse  bolting  the  track,  causing  injury.  Lane  v.  Minnesota,  etc., 
Soc.,  62  Minn.  175,  29  L.  R.  A.  708.  Recognizing  the  rule  of  reason- 
able care  to  make  the  premises  safe,  a  recovery  was  denied  in  the 
absence  of  any  evidence  of  the  immediate  cause  of  a  horse  running 
throu^  the  crowds.  Hart  v,  Washington  Park  Club,  157  111.  9,  29 
L.  R.  A.  492.    Where  a  street  car  company  maintained  a  park  as  a 


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206  INDIANAPOLIS  ST.  BY.  CO.  V.  DAWSON         [CHAP.  H. 

place  of  attraction  for  passengers  over  its  line,  the  falling  of  a  pole 
used  by  one  making  a  balloon  ascension,  under  a  contract,  injuring  a 
bystander,  recovery  was  allowed,  the  rule  being  announced  that  the 
company  must  use  proper  care  to  protect  its  patrons  from  danger 
while  on  its  grounds.  Richmond,  etc.,  R.  Co.  v.  Moore,  94  Va.  493, 
37  L.  R.  A.  258.  Where  a  street  car  company  maintained  a  large 
stage  for  exhibitions,  in  a  pleasiu^  resort  owned  by  it,  and  made  a 
written  contract  with  a  manager,  by  which  the  latter  furnished  vari- 
ous entertainments,  among  which  was  target  shooting,  one  injured 
by  a  split  bullet  was  allowed  to  recover,  it  being  held  that  he  might 
safely  rely  on  those  who  provided  the  exhibition  and  invited  his 
attendance  to  take  due  care  to  make  the  place  safe  from  such  injury 
as  he  received,  the  question  of  due  care  being  one  for  the  jury.  Thomp- 
son V.  Lowell,  etc.,  St.  R.  Co.,  170  Mass.  577, 40  L.  R.  A.  345;  Curtis 
V.  Kiley,  153  Mass.  123. 

The  duty  of  common  carriers  to  protect  their  passengers  from  in- 
jury on  account  of  imlawful  violence  by  persons  not  connected  with 
their  service  has  frequently  furnished  material  for  judicial  considera- 
tion. The  New  Jersey -Court  of  Errors  and  Appeals  approved  an  ex- 
haustive and  carefully  considered  opinion  delivered  by  the  Supreme 
Court  of  that  State  to  the  effect  that  a  passenger  who,  while  attempt- 
ing to  have  her  baggage  checked,  was  knocked  down  and  injured  by 
cabmen,  in  no  sense  servants  of  the  carrier,  scufiSing  on  a  passage- 
way under  its  control,  might  recover  against  it.  Exton  v.  Central  R. 
Co.,  63  N.  J.  L.  356,  56  L.  R.  A.  508.  In  what  seems  to  have  been  a 
pioneer  case,  it  was  held  by  the  Supreme  Court  of  Pennsylvania  in 
1866,  that  it  was  the  duty  of  the  trainmen  on  a  passenger-train  to 
exert  the  forces  at  their  disposal  to  prevent  injmy  to  passengers  by 
others  fighting  in  the  car.  Pittsburgh,  etc.,  R.  Co.  v.  Hinds,  53  Pa. 
St.  512.  Ten  years  later  the  Supreme  Court  of  Mississippi,  after  very 
exhaustive  arguments  by  eminent  counsel  of  national  reputation, 
reached  the  same  conclusion.  New  Orleans,  etc.,  R.  Co.  v.  Burke,  53 
Miss.  200. 

Without  further  elaboration  it  may  safely  be  said  that  the  unusual 
character  of  an  alleged  peril,  from  which  it  is  averred  the  appellant 
did  not  use  due  care  to  protect  its  visitors,  does  not  affect  the  right  of 
recovery,  it  being  otherwise  justified.  The  demurrers  were  therefore 
correctly  overruled. 

Evidence  was  introduced  of  other  prior  assaults  at  said  park  upon 
colored  persons,  and  articles  previously  published  by  daily  news- 
papers in  the  city  describing  such  occurrences  were  also  admitted. 
In  order  to  determine  whether  appellant  used  due  care,  it  was  essential 
to  show  its  knowledge  or  means  of  information  relative  to  the  condi- 
tions alleged  to  exist,  rendering  it  dangerous  for  appellee  to  visit  the 
park.  The  evidence  of  similar  occurrences  was  competent  as  tending 
to  show  notice  of  the  conditions.    Toledo,  etc.,  R.  Co.  y.  MiUigan,  2 


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SECT.  VI.]       SWEENY  V.  OLD  COLONY  RAILROAD  CO.  207 

Ind.  App.  578;  City  of  Delphi  v.  Lowery,  74  Ind.  520,  39  Am.  Rep. 
98;  aty  of  Goshen  v.  En^d,  119  Ind.  368,  375. 

The  facts  upon  which  appellant's  liability  depends  otherwise  than 
heretofore  considered  were  questions  for  the  determination  of  the 
jury.  There  was  evidence  tending  to  establish,  and  from  which  the 
jury  might  properly  find,  the  existence  of  such  facts. 

Appellant  and  its  officers  appear  to  have  displayed  indifference  to 
the  conditions  existing  which  it  and  they  could  not  well  help  know- 
ing. This  may  have  been  due  to  the  idea,  sometimes  entertained,  that 
as  to  acts  of  lawlessness  it  is  a  sufficient  duty  of  citizenship  to  be 
indifferent.    Such  idea  is  entirely  erroneous.         Judgment  affirmed.^ 


SWEENY  V.  OLD  COLONY  RAILROAD  COMPANY 

SuPREBiE  Judicial  Court,  Massachusetts,  January  Term,  1865. 

Reported  in  10  AUen,  368. 

Tort  to  recover  damages  for  a  personal  injury  sustained  by  being 
run  over  by  the  defendants'  cars,  while  the  plaintiff  was  crossing  their 
railroad  by  license,  on  a  private  way  leading  from  South  Street  to 
Federal  Street,  in  Boston. 

At  the  trial  in  this  Court,  before  Chapman,  J.,  it  appeared  that  this 
private  way,  which  is  called  Lehigh  Street,  was  made  by  the  South 
Cove  Corporation  for  their  own  benefit,  and  that  they  own  the  fee  of 
it;  that  it  is  wrought  as  a  way,  and  buildings  are  erected  on  each  side 
of  it,  belonging  to  the  owners  of  the  way,  and  there  has  been  much 
crossing  there  by  the  public  for  several  years.  The  defendants,  having 
rightfully  taken  the  land  under  their  charter,  not  subject  to  any  right 
of  way,  made  a  convenient  plank-crossing  and  kept  a  flagman  at  the 
end  of  it  on  South  Street,  partly  to  protect  their  own  property,  and 
partly  to  protect  the  public.  They  have  never  made  any  objection  to 
such  crossing,  so  far  as  it  did  not  interfere  with  their  cars  and  engines. 
There  are  several  tracks  at  the  crossing.  The  only  right  of  the  public 
to  use  the  crossing  is  imder  the  license  implied  by  the  facts  stated 
above. 

On  the  day  of  the  accident,  the  defendants  had  a  car  at  their  depot 
which  they^  had  occasion  to  run  over  to  their  car  house.  It  was  at- 
tached to  an  engine  and  taken  over  the  crossing,  and  to  a  proper  dis- 
tance beyond  the  switch.  The  coupling-pin  was  then  taken  out,  the 
engine  reversed,  and  it  was  moved  towards  the  car  house  by  the  side 
track.  The  engine  was  provided  with  a  good  engineer  and  fireman, 
and  the  car  with  a  brakeman;  the  bell  was  constantly  rung,  and  the 

*  Moone  v.  Smith,  6  Ga.  App.  649;  Mastad  v.  Swedish  Brethren,  83  Minn.  40; 
Rommel  v.  Schambacher,  120  Pa.  St.  679  Accord, 

But  compare  Woolworth  v,  Omboy,  170  Fed.  934;  Lord  v.  Sherer  Co.,  205 
Maas.  1. 


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208  SWEENY  V.  OLD  COLONY  RAILROAD  CO.        [CHAP.  H. 

defendants  were  not  guilty  of  any  negligence  in  respect  to  the  manage- 
ment of  the  car  or  engine. 

As  the  engine  and  car  were  coming  from  the  depot,  the  plaintiff, 
with  a  horse  and  a  wagon  loaded  with  empty  beer  barrels,  was  coming 
down  South  Street  from  the  same  direction.  There  was  evidence  tend- 
ing to  show  that,  as  he  approached  the  crossing,  the  flagman,  who  was 
at  his  post,  made  a  signal  to  him  with  his  flag  to  stop,  which  he  did; 
that,  in  answer  to  an  inquiry  by  the  plaintiff  whether  he  could  then 
cross,  he  then  made  another  signal  with  his  flag,  indicating  that  it  was 
safe  to  cross;  that  the  plaintiff  started  and  attempted  to  cross,  looking 
straight  forward;  that  he  saw  the  car  coming  near  him  as  it  went 
towards  the  car  house;  and  that  he  jumped  forward  from  his  wagon, 
and  the  car  knocked  him  down  and  ran  over  him  and  broke  both  his 
legs.  It  struck  the  fore-wheel  of  his  wagon  and  also  his  horse.  If  he 
had  remained  in  his  wagon,  or  had  not  jumped  forwards,  or  had  kept 
about  the  middle  of  the  crossing,  the  evidence  showed  that  he  would 
not  have  been  injured  personally.  His  wagon  was  near  the  left-hand 
side  of  the  plank-crossing  as  he  went. 

The  defendants  contended  that,  even  if  the  plaintiff  used  ordinary 
care,  and  if  the  flagman  carelessly  and  negligently  gave  the  signal  that 
he  might  cross,  when  in  fact  it  was  unsafe  to  do  so  on  accoimt  of  the 
approaching  car,  the  plaintiff  was  not  entitled  to  recover,  because  the 
license  to  people  to  use  the  crossing  was  not  a  license  to  use  it  at 
the  risk  of  the  defendants,  but  to  use  it  as  they  best  could  when  not 
forbidden,  taking  care  of  their  own  safety,  and  going  at  their  own  risk; 
and  also,  that  if  the  flagman  made  a  signal  to  the  plaintiff  that  he 
might  cross,  he  exceeded  his  authority. 

But  the  evidence  being  very  contradictory  as  to  the  care  used  by  the 
plaintiff,  and  also  as  to  the  care  used  by  the  flagman,  the  judge  ruled, 
for  the  purpose  of  taking  a  verdict  upon  these  two  facts,  that  the  de- 
fendants had  a  right  to  use  the  crossing  as  they  did  on  this  occasion, 
and  that  they  were  not  bound  to  keep  a  flagman  there;  yet,  since  they 
did  habitually  keep  one  there,  they  would  be  responsible  to  the  plain- 
tiff for  the  injury  done  to  him  by  the  car,  provided  he  used  due  care, 
if  he  was  induced  to  cross  by  the  signal  made  to  him  by  the  flagman, 
and  if  that  signal  was  carelessly  or  negligently  made  at  a  time  when 
it  was  unsafe  to  cross  on  account  of  the  movement  of  the  car. 

The  jmy  returned  a  verdict  for  the  plaintiff  for  $7500;  asnd  the  case 
was  reserved  for  the  consideration  of  the  whole  Court. , 

J.  G.  Abbott  and  P.  H.  Sears,  for  the  defendants.  The  defendants 
had,  for  all  purposes  incident  to  the  complete  enjoyment  of  their  fran- 
chise, the  right  of  exclusive  possession  and  use  of  the  place  where  the 
accident  happened,  against  the  owners  of  the  fee,  and  still  more  against 
all  other  persons.  Hazen  v,  Boston  &  Maine  Railroad,  2  Gray,  574; 
Brainard  v.  Clapp,  10  Cush.  6;  Gen.  Stat.  c.  63,  §§  102,  103.  The 
defendants  were  not  boimd  to  keep  a  flagman  there,  or  exercise  the 


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SECT.  VI.]       SWEENY  V.  OLD  COLONY  RAILROAD  CO.  209 

other  precautions  prescribed  for  the  crossing  of  highways  or  travefled 
places.  Gen.  Stat.  c.  63,  §§  64-66,  83-91 ;  Boston  &  Worcester  Rail- 
road V,  Old  Colony  Raifroad,  12  Cnsh.  608.  The  license  or  permis- 
sion, if  any,  to  the  plaintiff  to  pass  over  the  premises  did  not  impose 
any  duty  on  the  defendants,  but  he  took  the  permission,  with  its  con- 
comitant perils,  at  his  own  risk.  Rowland  v,  Vincent,  10  Met.  371, 
374;  Scott  v,  London  Docks  Co.,  11  Law  Times  (n.  s.),  383;  Chap- 
man V.  Rothwell,  El.  Bl.  4  El.  168;  Southcote  v.  Stanley,  1  Hurlst. 

6  Norm.  247;  Hounsell  v.  Smyth,  7  C.  B.  (n.  s.)  729,  735,  742;  Binks 
V.  South  Yorkshire  Railway,  Ac,  32  Law  Joum.  (n.  s.)  Q.  B.  26; 
Blithe  V.  Topham,  1  Rol.  Ab.  88;  s.  c.  1  Vm.  Ab.  665,  pi.  4;  Cro.  Jac. 
158.  The  defendants  did  not  hold  out  to  the  plaintiff  an  invitation 
to  pass  over.  Hounsell  v,  Smyth  and  Binks  v.  South  Yorkshire  Rail- 
way, above  cited.  The  allowing  or  making  of  such  private  crossing 
was  not  in  itself  such  an  invitation,  and  did  not  involve  the  duty  of 
such  precautions.  The  keeping  of  a  flagman  there  was  wholly  for  the 
purpose  of  preventing  persons  from  crossing,  not  for  the  purpose  of 
holding  out  invitations  at  any  time.  The  signal  that  the  plaintiff 
might  cross  was  in  answer  to  his  inquiry,  and  was,  at  most,  only  re- 
voking the  prohibition,  or  granting  permission;  it  was  not  holding  out 
an  invitation.  The  duty  of  the  flagman  was  simply  to  warn  persons 
against  crossing;  and  if  the  flagman  held  out  an  invitation  or  even 
gave  permission  to  the  plaintiff  to  cross,  he  went  beyond  the  scope  of 
his  employment,  and  the  defendants  are  not  liable  on  account  thereof. 
Lygo  V.  Newbold,  9  Exch.  203 ;  Middleton  v.  Fowle,  1  Salk.  282.  Even 
if  the  defendants  had  carelessly  held  out  an  invitation  to  the  plaintiff 
to  cross,  still  they  would  not  be  liable;  for  the  report  shows  that  after 
such  supposed  invitation  the  plaintiff  might,  by  the  exercise  of  ordi- 
nary care,  have  avoided  the  injury;  that  the  plaintiff  was  himself  at 
the  time  in  the  wrong;  and  that  his  own  negligence  and  fault  con- 
tributed to  the  accident.    Todd  v.  Old  Colony  &  Fall  River  Railroad, 

7  Allen,  207;  a.  c.  3  Allen,  18,  and  cases  cited;  Denny  v.  Williams,  5 
Allen,  1,  and  cases  cited;  Spofford  v,  Harlow,  3  Allen,  177,  and  cases 
cited. 

BiGBLOW,  C.  J.  This  case  has  been  presented  with  great  care  on 
the  part  of  the  learned  counsel  for  the  defendants,  who  have  produced 
before  us  all  the  leading  authorities  bearing  on  the  question  of  law 
which  was  reserved  at  the  trial.  We  have  not  found  it  easy  to  decide 
on  which  side  of  the  line  which  marks  the  limit  of  the  defendant's 
liability  for  damages  caused  by  the  acts  of  their  agents,  the  case  at  bar 
falls.  But  on  careful  consideration  we  have  been  brought  to  the  con- 
clusion that  the  rulings  at  the  trial  were  right,  and  that  we  cannot  set 
aside  the  verdict  for  the  plaintiff  on  the  ground  that  it  was  based  on 
erroneous  instructions  in  matter  of  law. 

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 


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210  SWEENY  V.  OLD  COLONY  RAILROAD  CO.        [CHAP.  H, 

some  obligation  or  duty  towards  the  plaintiff,  which  the  defendant  has 
left  undischarged  or  unfulfilled.  This  is  the  basis  on  which  the  cause 
of  action  rests.  There  can  be  no  fault,  or  negligence,  or  breach  of 
duty,  where  there  is  no  act,  or  service,  or  contract,  which  a  party  is 
bound  to  perform  or  fulfil.  All  the  cases  in  the  books,  in  which  a  party 
is  sought  to  be  charged  on  the  ground  that  he  has  caused  a  way  or 
other  place  to  be  incumbered  or  suffered  it  to  be  in  a  dangerous  condi- 
tion, whereby  accident  and  injury  have  been  occasioned  to  another, 
turn  on  the  principle  that  negligence  consists  in  doing  or  omitting  to 
do  an  act  by  which  a  legal  duty  or  obligation  has  been  violated.  Thus 
a  trespasser  who  comes  on  the  land  of  another  without  right  cannot 
maintain  an  action,  if  he  runs  against  a  barrier  or  falls  into  an  ex- 
cavation there  situated.  The  owner  of  the  land  is  not  boimd  to  pro- 
tect or  provide  safeguards  for  wrongdoers.  So  a  licensee,  who  enters 
on  premises  by  permission  only,  without  an  enticement,  allurement, 
or  inducement  being  held  out  to  him  by  the  owner  or  occupant,  can- 
not recover  damages  for  injuries  caused  by  obstructions  or  pitfalls. 
He  goes  there  at  his  own  risk,  and  enjoys  the  license  subject  to  its  con- 
comitant perils.  No  duty  is  imposed  by  law  on  the  owner  or  occupant 
to  keep  his  premises  in  a  suitable  condition  for  those  who  come  there 
solely  for  their  own  convenience  or  pleasure,  and  who  are  not  either 
expressly  invited  to  enter  or  induced  to  come  upon  them  by  the  pur- 
pose for  which  the  premises  are  appropriated  and  occupied,  or  by  some 
preparation  or  adaptation  of  the  place  for  use  by  customers  or  passen- 
gers, which  might  naturally  and  reasonably  lead  them  to  suppose  that 
they  might  properly  and  safely  enter  thereon. 

On  the  other  hand,  there  are  cases  where  houses  or  lands  are  so  situ- 
ated, or  their  mode  of  occupation  and  use  is  such,  that  the  owner  or 
occupant  is  not  absolved  from  all  care  for  the  safety  of  those  who  come 
on  the  premises,  but  where  the  law  imposes  on  him  an  obligation  or 
duty  to  provide  for  their  security  against  accident  and  injury.  Thus 
the  keeper  of  a  shop  or  store  is  bound  to  provide  means  of  safe  ingress 
and  egress  to  and  from  his  premises  for  those  having  occasion  to  enter 
thereon,  and  is  liable  in  damages  for  any  injury  which  may  happen  by 
reason  of  any  negUgence  in  the  mode  of  constructing  or  managing  the 
place  of  entrance  and  exit.  So  the  keeper  of  an  inn  or  other  place  of 
public  resort  would  be  liable  to  an  action  in  favor  of  a  person  who 
suffered  an  injury  in  consequence  of  an  obstruction  or  defect  in  the 
way  or  passage  which  was  held  out  and  used  as  the  common  and  proper 
place  of  access  to  the  premises.  The  general  rule  or  principle  applica- 
ble to  this  class  of  cases  is,  that  an  owner  or  occupant  is  bound  to  keep 
his  premises  in  a  safe  and  suitable  condition  for  those  who  come  upon 
and  pass  over  them,  using  due  care,  if  he  has  held  out  any  invitation, 
allurement,  or  inducement,  either  express  or  imphed,  by  which  they 
have  been  led  to  enter  thereon.  A  mere  naked  license  or  permission 
to  enter  or  pass  over  an  estate  will  not  create  a  duty  or  impose  an  obli- 


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SECT.  VI.]       SWEENY  V.  OLD  COLONY  RAILROAD  CO.  211 

gation  on  the  part  of  the  owner  or  person  in  possession  to  provide 
against  the  danger  of  accident.  The  gist  of  the  liability  consists  in 
the  fact  that  the  person  injured  did  not  act  merely  for  his  own  con- 
venience and  pleasure,  and  from  motives  to  which  no  act  or  sign  of 
the  owner  or  occupant  contributed,  but  that  he  entered  the  premises 
because  he  was  led  to  beUeve  that  they  were  intended  to  be  used  by 
visitors  or  passengers,  and  that  such  use  was  not  only  acquiesced  in 
by  the  owner  or  person  in  possession  and  control  of  the  premises,  but 
that  it  was  in  accordance  with  the  intention  and  design  with  which  the 
way  or  place  was  adapted  and  prepared  or  allowed  to  be  so  used.  The 
true  distinction  is  this:  A  mere  passive  acquiescence  by  an  owner  or 
occupier  in  a  certain  use  of  his  land  by  others  involves  no  liability; 
but  if  he  directly  or  by  impUcation  induces  persons  to  enter  on  and 
pass  over  his  premises,  he  thereby  assumes  an  obligation  that  they  are 
in  a  safe  condition,  suitable  for  such  use,  and  for  a  breach  of  this 
obligation  he  is  liable  in  damages  to  a  person  injiu'ed  thereby. 

This  distinction  is  fully  recognized  in  the  most  recent  and  best  con- 
sidered cases  in  the  English  Courts,  and  may  be  deemed  to  be  ^the 
pivot  on  which  all  cases  like  the  one  at  bar  are  made  to  turn.  In  Corby 
t;.  Hill,  4  C.  B.  (n.  s.)  656,  the  owner  of  land,  having  a  private  road 
for  the  use  of  persons  coming  to  his  house,  gave  permission  to  a  builder 
engaged  in  erecting  a  house  on  the  land  to  place  materiab  on  the  road; 
the  plaintiff,  having  occasion  to  use  the  road  for  the  purpose  of  going 
to  the  owner's  residence,  ran  against  the  materials  and  sustained  dam- 
age, for  which  the  owner  was  held  Uable.  Cockbum,  C.  J.,  says: "  The 
proprietors  of  the  soil  held  out  an  allurement  whereby  the  plaintiff  was 
induced  to  come  on  the  place  in  question ;  they  held  this  road  out  to  all 
persons  having  occasion  to  proceed  to  the  house  as  the  means  of  access 
thereto."  In  Chapman  v.  Rothwell,  El.  Bl.  A  El.  168,  the  proprietor 
of  a  brewery  was  held  liable  in  damages  for  injury  and  loss  of  life 
caused  by  permitting  a  trap-door  to  be  open  without  sufficient  light  or 
proper  saf^uards,  in  a  passageway  through  which  access  was  had 
from  the  street  to  his  office.  This  decision  was  put  on  the  ground  that 
the  defendant,  by  holding  out  the  passageway  as  the  proper  mode  of 
approach  to  his  office  and  brewery,  invited  the  party  injured  to  go 
there,  and  was  boimd  to  use  due  care  in  providing  for  his  safety.  This 
is  the  point  on  which  the  decision  turned,  as  stated  by  Keating,  J.,  in 
Hounsell  v.  Smyth,  7  C.  B.  (n.  s.)  738.  In  the  last-named  case  the 
distinction  is  clearly  drawn  between  the  liability  of  a  person  who  holds 
out  an  inducement  or  invitation  to  others  to  enter  on  his  premises  by 
preparing  a  way  or  path  by  means  of  which  they  can  gain  access  to  his 
house  or  store,  or  pass  into  or  over  the  land,  and  in  a  case  where  noth- 
ing is  shown  but  a  bare  license  or  permission  tacitly  given  to  go  upon 
or  through  an  estate,  and  the  responsibility  of  finding  a  safe  and  secure 
passage  is  thrown  on  the  passenger  and  not  on  the  owner.  The  same 
distinction  is  stated  in  Barnes  v.  Ward,  9  C.  B.  392;  Hardcastle  v. 


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212  SWEENY  V.  OLD  COLONY  RAILROAD  CO.        [CHAP.  U. 

South  Yorkshire  Railway,  &c.,  4  Hurlst.  &  Norm.  67;  and  Binks  v. 
South  Yorkshu^  Railway,  &c.,  32  Law  Joum.  (n.  s.)  Q.  B.  26.  In 
the  last  cited  case  the  language  of  Blackburn,  J.,  is  peculiarly  ap- 
pUcable  to  the  case  at  bar.  He  says,  "  There  might  be  a  case  where 
permission  to  use  land  as  a  path  may  amount  to  such  an  induce- 
ment as  to  lead  the  persons  using  it  to  suppose  it  a  highway,  and 
thus  induce  them  to  use  it  as  such."  See  also,  for  a  clear  statement 
of  the  difference  between  cases  where  an  invitation  or  allurement  is 
held  out  by  the  defendant,  and  those  where  nothing  appears  but  a 
mere  license  or  permission  to  enter  on  premises,  Bolch  v.  Smith,  7 
Hurlst.  &  Norm.  741,  and  Scott  v.  London  Docks  Co.,  11  Law  Times 
(n.  s.),  383. 

The  facts  disclosed  at  the  trial  of  the  case  now  before  us,  carefully 
weighed  and  considered,  bring  it  within  that  class  in  which  parties 
have  been  held  liable  in  damages  by  reason  of  having  held  out  an  invi- 
tation or  inducement  to  persons  to  enter  upon  and  pass  over  their 
premises.  It  cannot  in  any  just  view  of  the  evidence  be  said  that  the 
defendants  were  passive  only,  and  gave  merely  a  tacit  Ucense  or  assent 
to  the  use  of  the  place  in  question  as  a  public  crossing.  On  the  con- 
trary, the  place  or  crossing  was  situated  between  two  streets  of  the  city 
(which  are  much  frequented  thoroughfares),  and  was  used  by  great 
numbers  of  people  who  had  occasion  to  pass  from  one  street  to  the 
other,  and  it  was  fitted  and  prepared  by  the  defendants  with  a  con- 
venient plank-crossing,  such  as  is  usually  constructed  in  highwayB, 
where  they  are  crossed  by  the  tracks  of  a  railroad,  in  order  to  facilitate 
the  passage  of  animals  and  vehicles  over  the  rails.  It  had  been  so 
maintained  by  the  defendants  for  a  number  of  years.  These  facts 
would  seem  to  bring  the  case  within  the  principle  already  stated,  that 
the  license  to  use  the  crossing  had  been  used  and  enjoyed  under  such 
circumstances  as  to  amount  to  an  inducement,  held  out  by  the  defend- 
ants to  persons  having  occasion  to  pass,  to  believe  that  it  was  a  high- 
way, and  to  use  it  as  such.  But  the  case  does  not  rest  on  these  facts 
only.  The  defendants  had  not  only  constructed  and  fitted  the  crossing 
in  the  same  manner  as  if  it  had  been  a  highway,  but  they  had  employed 
a  person  to  stand  there  with  a  flag,  and  to  warn  persons  who  were 
about  to  pass  over  the  railroad  when  it  was  safe  for  them  to  attempt  to 
cross  with  the  vehicles  and  animals,  without  interference  or  collision 
with  the  engines  and  cars  of  the  defendants.  And  it  was  also  shown 
that  when  the  plaintiff  started  to  go  over  the  tracks  with  his  wagon,  it 
was  in  obedience  to  a  signal  from  this  agent  of  the  defendants  that 
there  was  no  obstruction  or  hindrance  to  his  safe  passage  over  the 
railroad.  These  facts  well  warranted  the  jury  in  finding,  as  they  must 
have  done  in  rendering  a  verdict  for  the  plaintiff  imder  the  instruc- 
tions of  the  Coiut,  that  the  defendants  induced  the  plaintiff  to  cross 
at  the  time  when  he  attempted  to  do  so,  and  met  with  the  injury  for 
which  he  now  seeks  compensation. 


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SECT.  VI.]        SWEENY  V.  OLD  COLONY  RAILROAD  CO.  213 

It  was  suggested  that  the  person  employed  by  the  defendants  to 
stand  near  the  crossing  with  a  flag  exee^ed  his  authority  in  giving  a 
signal  to  the  plaintiff  that  it  wqs  safe  for  him  to  pass  over  the  crossing 
just  previously  to  the  accident,  and  that  no  such  act  was  within  the 
scope  of  his  employment,  which  was  limited  to  the  duty  of  preventing 
persons  from  passing  at  times  when  it  was  dangerous  to  do  so.  But  it 
seems  to  us  that  this  is  a  refinement  and  distinction  which  the  facts  do 
not  justify.  It  is  stated  in  the  report  that  the  flagman  was  stationed 
at  the  place  in  question,  charged  among  other  things  with  the  duty  of 
protecting  the  public.  This  general  statement  of  the  object  for  which 
the  agent  was  employed,  taken  in  connection  with  the  fact  that  he  was 
stationed  at  a  place  constructed  and  used  as  a  public  way  by  great 
numbers  of  people,  clearly  included  the  duty  of  indicating  to  persons 
when  it  was  safe  for  them  to  pass,  as  well  as  when  it  was  prudent  or 
necessary  for  them  to  refrain  from  passing. 

Nor  do  we  think  it  can  be  justly  said  that  the  flagman  in  fact  held 
out  no  inducement  to  the  plaintiff  to  pass.  No  express  invitation  need 
have  been  shown.  It  would  have  been  only  necessary  for  the  plaintiff 
to  prove  that  the  agent  did  some  act  to  indicate  that  there  was  no  risk 
of  accident  in  attempting  to  pass  over  the  crossing.  The  evidence  at 
the  trial  was  clearly  suflBicient  to  show  that  the  agent  of  the  defendants 
induced  the  plaintiff  to  pass,  and  that  he  acted  in  so  doing  within 
the  scope  of  the  authority  conferred  on  him.  The  question  whether  the 
plaintiff  was  so  induced  was  distinctly  submitted  to  the  jury  by  the 
Court;  nor  do  we  see  any  reason  for  supposing  that  the  instructions 
on  this  point  were  misunderstood  or  misapplied  by  the  jiuy.  If  they 
lacked  fulness,  the  defendants  should  have  asked  for  more  explicif  in- 
structions. Certainly  the  evidence  as  reported  well  warranted  the 
finding  of  the  jiuy  on  this  point. 

It  was  also  urged  that,  if  the  defendants  were  held  liable  in  this 
action,  they  would  be  made  to  suffer  by  reason  of  the  fact  that  they 
had  taken  precautions  to  guard  against  accident  at  the  place  in  ques- 
tion, which  they  were  not  bound  to  use,  and  that  the  case  would  pre- 
sent the  singular  aspect  of  holding  a  party  liable  for  neglect  in  the 
performance  of  a  duty  voluntarily  assumed,  and  which  was  not  im- 
posed by  the  rules  of  law.  But  this  is  by  no  means  an  anomaly.  If 
a  person  undertakes  to  do  an  act  or  discharge  a  duty  by  which  the 
conduct  of  others  may  properly  be  regulated  and  governed,  he  is  bound 
to  perform  it  in  such  manner  that  those  who  rightfully  are  led  to  a 
course  of  conduct  or  action  on  the  faith  that  the  act  or  duty  will  be 
duly  and  properly  performed  shall  not  suffer  loss  or  injury  by  reason 
of  his  negligence.  The  liability  in  such  cases  does  not  depend  on  the 
motives  or  considerations  which  induced  a  party  to  take  on  himself  a 
particular  task  or  duty,  but  on  the  question  whether  the  legal  rights 
of  others  have  been  violated  by  the  mode  in  which  the  charge  assumed 
has  been  performed. 


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214  STEVENS  V.  NICHOLS  [CHAP.  H. 

The  Court  were  not  requested  at  the  trial  to  withdraw  the  case  from 
the  jury  on  the  ground  that  the  plaintiff  had  failed  to  show  he  was  in 
the  exercise  of  due  care  at  the  time  the  accident  happened.  Upon  the 
evidence,  as  stated  in  the  report,  we  cannot  say,  as  matter  of  law,  that 
the  plaintiff  did  not  establish  this  part  of  his  case. 

Jiidgment  on  the  verdict. 

After  the  above  decision  was  rendered,  the  verdict  was  set  aside,  by 
Chapman,  J.,  as  against  the  evidence.^ 


STEVENS  V.  NICHOLS 

SxTPREMB  Judicial  Court,  Massachusetts,  Febbuabt  23, 1892. 

Reported  in  155  Maadochuaetia  ReparUy  472. 

Tort,  to  recover  for  injuries  occasioned  to  the  plaintiff  by  driving 
over  a  curbstone  covered  with  snow  in  a  private  way  controlled  by  the 
defendants.  At  the  trial  in  the  Superior  Court,  Mason,  C.  J.,  at  the 
defendants'  request,  ruled  that,  upon  the  pleadings  and  the  plaintiff's 
opening,  he  could  not  maintain  the  action,  and  prdered  a  verdict  for 
the  defendants;  and  the  plaintiff  alleged  exceptions.  The  facts,  so 
far  as  material  to  the  points  decided,  appear  in  the  opinion. 

John  L.  Thomdik€f  for  the  defendants.* 

This  case  bears  no  resemblance  to  Holmes  v.  Drew,  161  Mass.  678, 
where  the  defendant  had  constructed  a  brick  sidewalk  by  the  side  of  a 
public  street,  partly  on  her  own  land  and  partly  in  the  street,  without 
any^  line  of  separation,  and  so  that  the  whole  was  apparently  part  of 
the  street,  and  the  defendant  clearly  intended  that  it  should  be  used 

^  Jones  V.  New  York  R.  Co.,  211  Mass.  521 ;  De  Boer  v,  Brooklyn  Wharf  Co.,  61 
App.  Div.  289  Accord.    Compare  Hillman  v.  Boston  R.  Co.,  207  Mass.  478. 

This  case  is  often  cited  as  tnough  it  decided  that  the  defendant  was  liable  to  the 
plaintiff  for  harm  suffered  by  the  plaintiff  on  account  of  a  defect  in  the  premises; 
€.  g.f  defective  planks  on  the  crossing.  For  a  more  correct  view  of  the  real  question 
involved  see  the  able  argument  of  Mr.  Thomdike  in  Stevens  v.  Nichols,  post, 

lAahUiiy  of  owner  or  occupier  of  a  place  manifestly  intended  for  public  or  general 
use:  see  Ciogan  v.  Schiele.  53  Conn.  186;  Howe  v.  Ohmart,  7  Ind.  App.  32;  Davis 
V.  Central  Congregational  Society,  129  Mass.  367;  Hohnes  v.  Drew,  151  Mass. 
578;  Gordon  v.  Cummings,  152  Nlass.  513:  Kelly  v.  Southern  R.  Co..  28  Minn.  98; 
Marsh  v.  Minneapolis  Brewing  Co.,  92  Mmn.  182;  Rachmel  v.  Clark,  206  Pa.  St. 
314. 

LdabUity  of  owner  or  occupier  who  passively  acquiesces  in  use  by  others:  see  White 
V.  France,  2  C.  P.  D.  308;  Alabama  R.  Co.  v.  Godfrey,  156  Ala.  202;  Herzog  v. 
Hemphill,  7  Cal.  App.  116;  Pastorello  v.  Stone,  89  Conn.  286:  Etheredge  v.  Cen- 
tral R.  Co.,  122  Ga.  863;  Nave  v.  Flack,  90  Ind.  205;  EvansviUe  R.  Co.  v.  Griffin, 
100  Ind.  221;  Martin  v.  Louisville  Bridge  Co.,  41  Ind.  App.  493:  Zoebisch  v.  Tar- 
bell,  10  Allen,  385;  Bowler  v.  Pacific  Mills,  200  Mass.  364;  Habina  v.  Twin  City 
Electric  Co.,  150  Mich.  41;  Moore  v.  Wabash  R.  Co.,  84  Mo.  481,  488;  KeUy  ». 
Benas,  217  Mo.  1;  Barry  v.  Calvary  Cemetery  Assn.,  106  Mo:  App.  358;  Walsh 
V.  Fitchburg  R.  Co..  146  N.  Y.  301;  Fox  v.  Warner  Asphalt  Co.,  204  N.  Y.  340: 
Monroe  v.  Atlantic  R.  Co.,  151  N.  C.  374;  Phillips  v.  Orr,  152  N.  C.  583;  Raihoad 
Co.  V.  Harvey,  77  Ohio  St.  235;  Breckenridge  v.  Bennett,  7  Kulp  (Pa.)  95. 

*  The  report  in  155  Mass.  472  does  not  give  any  portion  of  the  arguments.  The 
following  passages  are  extracts  from  the  printed  brief  for  the  defendants. 


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SECrr.  VI.]  STEVENS  V.  NICHOLS  215 

as  part  of  the  street.  There  is  no  similarity  between  such  an  addition 
to  the  apparent  width  of  a  public  street  and  the  opening  of  a  private 
avenue  or  way  out  of  a  public  street.  The  private  way  could  not  have 
been,  or  intended  to  be,  part  of  the  public  street,  and  the  separation 
between  them  was  plain.  .  .  . 

The  absence  of  similarity  between  this  case  and  Holmes  v.  Drew, 
151  Mass.  578,  has  already  been  pointed  out;  but  it  is  also  submitted 
that  that  case  is  the  first  in  which  it  has  ever  been  held  that  the  owner 
of  land  was  under  any  obligation  to  make  it  safe  for  a  person  that  was 
allowed  to  come  upon  the  land  for  his  own  convenience,  and  for  a  pur- 
pose in  which  the  owner  had  no  interest,  whether  the  owner  gave  his 
consent  in  the  form  of  a  permission  or  in  the  form  of  what  might,  in 
common  language,  be  called  an  invitation.  Such  persons  were  called 
Ucensees,  and  must  take  the  land  as  they  foimd  it,  subject  only  to  this, 
that  the  owner  must  not  lead  them  into  danger  by  "  something  like 
fraud."  Gautret  t;.  Egerton,  L.  R.  2  C.  P.  371,  374^75;  Reardon  v. 
Thompson,  149  Mass.  267,  268;  Pollock  on  Torts,  424-426.  .  •  . 

But  as  regards  persons  coming  upon  land  at  the  request,  actual  or 
tacit,  of  the  owner  upon  business  or  for  a  purpose  in  which  the  owner 
had  an  interest,  it  was  his  duty  to  make  it  reasonably  safe,  and  he  was 
liable  for  damages  arising  from  a  neglect  of  this  duty.  Indemtaur  v. 
Dames,  L.  R.  1  C.  P.  274,  2  C.  P.  311;  Carleton  v.  Franconia  Iron  & 
Steel  Co.,  99  Mass.  216  (rock  by  wharf  at  which  vessel  imloaded); 
The  Moorcock,  14  P.  D.  64  (a  similar  case) ;  Davis  v.  Central  Congre- 
gational Society,  129  Mass.  367  (plaintiff  attending  a  conference  of 
churches  at  defendant's  meeting-house,  an  object  in  which  both  parties 
had  an  interest;  abo,  p.  371,  "  a  dangerous  place  without  warning  "); 
Pollock  on  Torts,  415-418. 

It  is  this  common  interesty  not  the  form  of  the  Ucense  or  invitation, 
that  creates  the  liability  (Holmes  v.  North  Eastern  Ry.  Co.,  L.  R. 
4  Ex.  254,  6  Ex.  123). 

The  distinction  between  these  two  classes  of  cases  is  that  in  one  the 
owner  of  the  land  has  an  interest  in  the  person's  coming  there,  while 
in  the  other  the  authority  to  come  upon  the  land  is  a  pure  gratuity. 
It  is  reasonable  that  the  owner  should  undertake  some  duty  in  respect 
of  the  condition  of  the  land  when  he  brings  another  person  there  for 
an  object  in  which  he  himself  has  an  interest.  But  there  is  no  reason 
why  he  should  imdertake  any  such  duty  when  he  makes  a  gift  of  the 
privilege  of  going  upon  his  land.  The  privilege  is  only  a  gift,  whether 
the  owner  gives  it  because  it  is  asked  for,  or  whether  he  offers  it  first, 
or  asks  or  "  invites  "  the  other  to  accept  it.  It  may  in  a  sense  be  said 
that  a  person  is  "  induced  '*  to  go  upon  land  by  a  hcense  or  permisson 
of  the  owner,  but  the  real  inducement  is  his  own  convenience.  When 
the  owner  asks  him  to  walk  over  his  land  whenever  it  is  agreeable  to 
him,  and  he  goes  there,  he  does  so  because  it  is  agreeable  to  him,  and 
not  because  the  owner  asks  him.   He  is  in  law  a  licensee  going  upon  the 


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216  STEVENS  V.  NICHOLS  [CHAP.  II. 

land  for  his  own  convenience  by  the  owner's  penniasion,  and  not  a  per- 
son brought  there  for  a  purpose  in  which  the  owner  has  an  interest.^ 

LdcenseeSf  however,  have  a  right  to  expect  that  the  owner  will  not 
create  a  new  danger  while  the  license  continues,  and  he  is  liable  for 
the  consequences  if  he  does  create  such  a  danger;  e.  g.,  by  making  an 
excavation  near  a  path,  as  in  OUver  v,  Worcester,  102  Mass.  489,  502, 
or  by  placing  an  obstruction  in  an  avenue,  as  in  Corby  t;.  Hill,  4  C.  B. 
N.  s.  556,  567,  or  by  carelessly  throwing  a  keg  into  a  passageway,  as 
in  Corrigan  v.  Union  Sugar  Refinery,  98  Mass.  577,  or  by  negligent 
management  of  trains  at  a  private  crossing  of  a  railway  habitually 
used  by  the  pubUc  with  the  assent  of  the  company,  as  in  Sweeny  v. 
Old  Colony  RW.  Co.,  10  Allen,  368;  Murphy  v.  Boston  &  Albany  Rid. 
Co.,  133  Mass.  121;  Hanks  v.  Boston  &  Albany  Rid.  Co.,  147  Mass. 
495;  Byrne  v.  New  York  Central  Rid.  Co.,  104  N.  Y.  362;  Swift  v. 
Staten  Island  Rid.  Co.,  123  N.  Y.  645;  Taylor  v.  Delaware  &  Hudson 
Canal  Co.,  113  Pa.  St.  162,  175. 

The  principle  of  these  cases  is  stated  by  Willes,  J.,  in  Gautret  v, 
Egerton,  L.  R.  2  C.  P.,  p.  373,  as  follows:  "  If  I  dedicate  a  way  to  the 
public  which  is  full  of  ruts  and  holes,  the  pubUc  must  take  it  as  it  is. 
If  I  dig  a  pit  in  it,  I  may  be  Uable  for  the  consequences;^  but;  if  I  do 
nothing,  I  am  not." 

The  same  principle  is  alluded  to  in  June  v.  Boston  &  Albany  Rid. 
Co.,  153  Mass.  p.  82,  where  the  court  speaks  of  "  cases  in  which  even 
unintended  damage  done  to  a  licensee  by  actively  bringing  force  to 
bear  upon  his  person  will  stand  differently  from  merely  passively 
leaving  land  in  a  dangerous  condition." 

»  Smith  V,  London  Docks  Co.,  L.  R.  3  C.  P.  326;  Holmes  v.  Northeastern  R.  Co., 
L.  R.  4  Ex.  254,  L.  R.  6  Ex.  123:  Wright  v.  London  R.  Co.,  L.  R.  10  0.  B.  298, 
1  Q.  B.  D.  252;  Berlin  Mills  v.  Croteau,  (C.  C.  A.)  88  Fed.  860;  Smith  v.  Day, 
(C.  C.  A.)  100  Fed.  244;  Currier  v.  Trustees,  (C.  C.  A.)  117  Fed.  44;  Rhode  v. 
Duff,  (C.  C.  A.)  208  Fed.  115;  Middleton  v.  Ross,  (C.  C.  A.)  213  Fed.  6;  Ala- 
bama  R.  Co.  v.  Godfrey,  156  Ala.  202;  Schmidt  v.  Bauer.  80  Cal.  565;  Herzog  v. 
Hemphill,  7  Cal.  App.  116;  Pauckner  v.  Wakem.  231  111.  276:  Franey  v.  Umon 
Stockyards  Co^  235  El.  622,  138  111.  App.  215;  PurteU  v.  Coal  Co.,  256  Dl.  110; 
Northwestern  R.  Co.  v,  O'Malley,  107  111.  App.  699;  Deach  v,  Woohier,  187  111. 
App.  524;  Fans  v,  Hoberg,  134  Ind.  269;  Baltunore  R.  Co.  v.  Slaughter,  167  Ind. 
330;  Thiele  v.  McManus,  3  Ind.  App.  132:  Wihnes  v.  Chicago  R.  Co.,  175  la. 
101;  Lackat  v.  Lutz,  94  Ky.287;  Smith  v.  Trimble,  111  Ky.  861;  Kentucky  Dis- 
tilleries Co.  V.  Leonard,  (Ky.)  79  S.  W.  281;  Bell  v.  Houston  R.  Co.,  132  La.  88; 
Dixon  V.  Swift,  98  Me.  207;  Patten  v.  Bartlett,  111  Me.  409;  Elie  v.  Lewiston  R. 
Co.,  112  Me.  178;  Plummer  v.  Dill,  156  Mass.  426;  Gauley  v.  Hall,  168  Mass.  513; 
Cowen  V.  Kirby,  180  Mass.  504;  Norris  v.  Nawn  Contracting  Co.,  206  Mass.  58; 
Lepnick  v.  Gaddis,  72  Miss.  200;  Glaser  v,  Rothschild,  221  Mo.  180;  Davis  v. 
Ringolsky,  143  Mo.  App.  364;  Bryant  v,  Missouri  R.  Co.,  181  Mo.  App.  189; 
True  V.  Meredith  Creamery,  72  N.  H.  164;  Flanagan  v.  Atlantic  Asphalt  Co..  37 
App.  Div.  476;  Buchtel  College  v.  Martin,  25  Ohio  Cir.  Ct.  R.  494:  Smith  v. 
Sunday  Creek  Co.,  74  W.  Va.  606;  Ross  v.  Kanawha  R.  Co.,  76  W.  Va.  197; 
Hupfer  V.  National  Distilling  Co.,  114  Wis.  279;  Muench  v.  Heinemann.  119  Wis. 
441  Accord.  See  also  Blossom  v.  Poteet,  104  Tex.  230  (wife  bringing  husband's 
dinner  to  mill  where  he  was  employed);  Southwestern  Cement  Co.  v.  Bustillos, 
(Tex.  Civ.  App.)  169  S.  W.  638  (child  bringing  lunch  to  employee). 

But  compare  Mandeville  Mills  w.  Dale,  2  Ga.  App.  607;  Furey  v.  New  York 
Central  R.  Co.,  67  N.  J.  Law,  270;  Gorr  v,  Mittlestaedt,  96  Wis.  296. 


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SECrr.  VI.]  STEVENS  V.  NICHOLS  217 

The  cases  above  mentioned  include  all  that  are  cited  in  Hofanes  v. 
Drew,  151  Mass.  580.  In  none  of  them  is  it  held  or  suggested  that 
the  railway  company  was  liable  for  any  defect  or  obstruction  in  the 
crossing,  or  that  the  landowner  was  liable  for  any  excavation  or  ob- 
struction existing  when  the  permission  was  granted. 

[After  citing  cases  where  the  court  said  that  eame  kind  of  induce- 
ment or  invitation  was  necessary  to  create  a  liability  for  want  of  care 
in  running  trains.]  But  it  was  not  suggested  that  the  induo^nent  or 
invitation  would  create  any  liability  for  defects  in  the  crossing  itself 
which  the  company  gratuitoudy  allowed  the  public  to  use. 

[Referring  to  cases  where  there  is  implied  license  to  the  public  to 
use  a  crossing.]  The  probability  known  to  the  company  that  some 
one  may  be  there  in  pursuance  of  the  license  is  treated  ...  as  the 
groimd  of  liability  in  such  cases  for  want  of  care  in  running  trains. 
.  .  .  But  there  is  nothing  in  any  of  the  eases  above  mentioned  tend- 
ing to  support  the  proposition  that  the  knowledge  of  the  habituid  use 
of  the  crossing,  pursuant  to  the  implied  permission,  would  create  a 
liability  for  defects  in  the  crossing  itself  or  impose  any  kind  of  duty 
to  make  it  safe  or  convenient. 

Holmes  v.  Drew  (151  Mass.  578)  does  not  belong  to  eiUier  of  the 
two  last  classes  of  cases.  The  plaintiff  (1)  did  not  go  there  upon  the 
defendant's  land  for  any  purpose  in  which  the  defendant  was  inter- 
ested, and  (2)  the  defendant  did  nothing  to  make  the  place  less  safe 
than  it  was  when  it  was  first  opened  to  the  public.  The  plaintiff  was 
a  volimteer,  going  upon  the  defendant's  land  with  her  full  permission, 
but  entirely  for  his  own  convenience.  These  distinctions  do  not  ap- 
pear to  have  been  called  to  the  attention  of  the  court.  The  judgment, 
which  is  very  short,  seems  to  proceed  upon  the  ground  that  the  de- 
fendant, by  paving  a  footway  partly  on  her  own  land  and  allowing  it 
to  remain  apparently  a  part  of  the  street,  showed  an  intention  that  it 
should  be  used  by  foot  passengers,  and  that  this  would  amount  to  an 
implied  invitation,  which  imposed  on  her  a  duty  to  make  it  reasonably 
safe.  If  this  is  to  be  taken  literally,  a  permission  ceases  to  be  a 
license  if  it  is  intended  that  it  shall  be  used;  and  an  invitation  imposes 
the  same  duty  when  it  is  given  gratuitously  for  the  pleasure  of  the 
donee  as  when  it  is  given  for  an  object  in  which  the  giver  has  an  in- 
terest; and  the  owner  of  land  that  gives  permission  to  cross  his  land 
can  escape  liability  only  by  proving  that  he  did  not  intend  the  per- 
mission to  be  used.  It  is  submitted  that  the  authorities  cited  in  that 
case  do  not  support  this  doctrine.  Two  of  them  are  cases  where  the 
invitation  was  to  come  upon  the  land  for  a  purpose  in  which  the  owner 
had  an  interest,  and  in  the  three  others  a  licensee  was  injured  by 
n^ligence  in  something  done  after  the  license  was  given.  .  .  . 

Lathrop,  J.  The  declaration  in  this  case,  so  far  as  material  to  the 
questions  presented  at  the  argument,  alleged  that  the  defendants  on 


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218  STEVENS  V.  NICHOLS  [CHAP.  n. 

the  day  of  the  accident  were,  and  had  been  for  a  long  time,  lessees  and 
occupants  of  an  estate  on  Atlantic  Avenue  in  Boston;  that  the  de- 
fendants maintained  a  way  or  street  down  by  their  premises, "  leading 
out  of  said  Atlantic  Avenue,  and  extending  to  other  premises  beyond; 
that  said  street  was  in  all  particulars  like  the  pubUc  streets  of  the  city 
of  Boston,  being  paved  with  granite  blocks,  and  having  sidewalks,  and 
to  all  appearances  was  a  public  thoroughfare;  that  the  defendants  had 
placed  no  sign  or  notice  of  any  kind  upon  or  about  said  street  .  .  . 
which  would  give  warning  to  the  plaintiff  or  to  the  public  that  said 
street  was  private  property,  or  dangerous,  but  had  erected  a  granite 
curbing  out  into  said  street,  extending  one  half  the  distance  across  the 
same,  on  a  line  with  the  rear  of  their  estate,  said  granite  curbing  being 
from  six  to  seven  inches  above  the  grade  of  the  paving;  that  said  ob- 
struction was  dangerous  both  by  day  and  by  night  to  all  persons  who 
entered  upon  or  passed  through  said  street;  that  on  or  about  said  day 
the  plaintiff  had  business  that  called  him  to  the  premises  that  Ue  be- 
yond the  estate  of  the  defendants  on  said  street,  and,  supposing  and 
assuming  that  said  street  was  a  highway,  and  being  induced  by  the 
acts  and  omissions  of  these  defendants  to  so  suppose  and  assume, 
entered  in  and  upon  said  street  to  drive  through  the  same;  that  said 
obstruction  was  covered  by  snow  at  said  time,  and  plaintiff  was  unable 
to  see  the  same;  and,  while  in  the  exercise  of  due  care,  his  sleigh 
struck  said  granite  curbing,"  and  he  was  thrown  out  and  injured. 

The  opening  of  the  plaintiff's  counsel  added  but  little  to  the  decla- 
ration. It  stated  that  "  the  snow  lay  perfectly  level  "  where  the  curb- 
stone was;  that  the  plaintiff  was  driving  through  the  defendants*  way 
"  into  the  way  lying  beyond,  of  which  it  was  ...  an  extension,"  to 
reach  the  works  of  the  company  for  which  he  was  working.  It  also 
stated  that,  before  the  defendants  controlled  the  way  under  the  writ- 
ten lease,  they  owned  the  premises,  erected  the  building,  paved  the 
way,  and  put  in  the  curbstone;  "  that  ever  since  this  building  and 
other  buildings  had  been  erected  down  there  the  public  made  use  of 
that  way,  as  they  would  use  any  other  street  in  the  city;  that  is,  as 
much  as  they  had  any  occasion  to  pass  down  there  with  teams  or  on 
foot." 

It  does  not  appear  that  the  plaintiff  had  any  right  in  the  way,  un- 
less he  had  it  as  one  of  the  public.  There  is  no  allegation  or  state- 
ment that  the  plaintiff  had  ever  used  the  way  before,  or  that  he  knew 
the  way  was  paved,  or  noticed  whether  there  was  a  sign  or  not.  In- 
deed, if  he  was  then  using  the  way  for  the  first  time,  the  fair  infer- 
ence would  be,  from  the  statement  of  the  condition  of  the  snow,  that 
the  fact  that  the  way  was  paved  was  unknown  to  him  until  after  the 
accident,  and  did  not  operate  as  an  inducement  to  enter  the  way.  The 
declaration  contained  no  allegation  as  to  any  use  by  the  public  of  the 
way,  and  the  statement  in  the  opening  of  counsel,  that  the  public  made 
use  of  that  way,  was  qualified  by  the  words,  "  that  is,  as  much  as  they 


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SECrr.  VI.]  STEVENS  V.  NICHOLS  219 

had  any  occasion  to  pass  down  there  with  teams  or  on  foot."  It  is 
difficult  to  see  how  vehicles  of  any  description  could,  when  the  paving 
was  sufficiently  visible  to  act  as  an  inducement,  go  over  that  portion 
of  the  way  which  the  defendants  controlled. 

Without  laying  stress  upon  these  points,  we  are  of  opinion  that  the 
declaration  and  the  opening  of  the  plaintiflf's  counsel  do  not  show  that 
there  was  any  breach  on  the  part  of  the  defendants  of  any  duty  which 
they  owed  the  plaintifiF.  The  defendants  were  not  obliged  to  put  up  a 
sign  notifying  travellers  on  the  public  street  that  the  passageway  was 
not  a  pubUc  way.  Galligan  v.  Metacomet  Manuf.  Co.,  143  Mass.  527; 
Reardon  v.  Thompson,  149  Mass.  267;  Redigan  v.  Boston  &  Maine 
Railroad,  anUy  4A.^ 

Nor  can  the  fact  that  the  passageway  was  paved  be  considered  an 
invitation  or  inducement  to  the  public  to  enter  upon  it  for  their  own 
convenience.  The  defendants  have  a  right  to  pave  it  for  their,  own 
use  or  for  the  use  of  their  customers.  Johnson  v.  Boston  &  Maine 
Railroad,  126  Mass.  75;  Heinlein  v.  Boston  &  Providence  Railroad, 
147  Mass.  136;  Reardon  v.  Thompson,  149  Mass.  267;  Donnelly  v, 
Boston  &  Maine  Railroad,  151  Mass.  210;  Redigan  v,  Boston  &  Maine 
Railroad,  ante,  44. 

There  was  in  this  case  no  allegation  and  no  statement  that  the  de- 
fendants had  'any  knowledge  that  the  public  was  using  the  passage- 
way, or  of  such  a  condition  of  things  that  it  can  be  said  that  they  must 
have  known  of  it.  But  if  it  be  assumed  that  there  was  such  use  and 
such  acquiescence  that  a  license  might  be  implied,  the  plaintiff  stands 
in  no  better  position.  "  The  general  rule  is,"  as  stated  by  Mr.  Justice 
Holmes  in  Reardon  v,  Thompson,  libi  supra,  "  that  a  Ucensee  goes 
upon  land  at  his  own  risk,  and  must  take  the  premises  as  he  finds 
them."  See  also  Redigan  v,  Boston  &  Maine  Railroad,  ante,  44; 
Gautret  v,  Egerton,  L.  R.  2  C.  P.  371,  374. 

The  Ucensor  has,  however,  no  right  to  create  a  new  danger  while 
the  license  continues. '  Oliver  v.  Worcester,  102  Mass.  489,  502;  Cor- 
rigan  v.  Union  Sugar  Refinery,  98  Mass.  577;  Corby  v.  Hill,  4  C.  B. 
(n.  s.)  556.  So  a  railroad  company  which  allows  the  pubUc  habitu- 
ally to  use  a  private  crossing  of  its  tracks  cannot  use  active  force 
against  a  person  or  vehicle  crossing  under  a  Ucense,  express  or  im- 
plied. Sweeny  v.  Old  CJolony  &  Newport  Railroad,  10  Allen,  368; 
Murphy  v.  Boston  &  Albany  Railroad,  133  Mass.  121 ;  Hanks  v.  Bos- 
ton &  Albany  Railroad,  147  Mass.  495.  See  June  v,  Boston  4  Albany 
Raikoad,  153  Mass.  79,  82. 

We  have  no  occasion  to  consider  whether  the  case  of  Holmes  v. 
Drew,  151  Mass.  578,  is  open  to  the  criticism  that  it  is  inconsistent 
with  the  doctrine  that  a  person  who  dedicates  a  footway  to  the  public 
use  is  not  obliged  to  keep  it  in  repair  (see  Fisher  v.  Prowse,  2  B.  &  S. 
770,  780,  and  Bobbins  v,  Jones,  15  C.  B.  (n.  s.)  221)  as  we  are  pf 

1  That  is,  155  Mass. 


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220  TUTTLE  V.  GILBERT  MANUFACTURING  CO.     [CHAP.  II, 

opinion  that  that  case  has  no  appUcation  to  the  case  at  bar.  In  Holmes 
V.  Drew,  the  defendant  made  a  continuous  pavement  in  front  of  his 
house,  partly  on  his  own  land  and  partly  on  the  public  land;  and  it 
was  held  that  the  jury  might  infer  from  this  an  invitation  to  walk 
over  the  whole  pavement.  In  the  case  at  bar,  the  defendants  merely 
opened  a  private  way  into  a  public  street,  and  we  fail  to  see  that  th^ 
thereby  invited  the  public  to  use  it,  even  though  itwere  paved. 

ExcepUons  overruled.^ 


TUTTLE  V.  GILBERT  MANUFACTURING  CO. 
SuFBEMB  Judicial  Court,  Massachubbtts,  October  20, 1887. 
Reported  in  145  Maesachusetta  ReportSf  169. 

ToRT,  by  lessee  of  a  building  against  lessor.  The  lessee  claimed, 
and  introduced  evidence  to  show,  that,  at  the  time  of  letting,  the  lessor 
agreed  to  repair  the  building  and  put  it  in  safe  condition;  that  the 
lessee  suffered  damage  by  reascoi  of  a  defect  in  the  building;  and  that 
the  lessor  failed  and  neglected  to  make  repairs  until  after  the  damage 
to  the  plaintifiF. 

Upon  the  evidence,  the  judge  ruled  that  plaintiff  could  not  recover, 
and  ordered  a  verdict  for  defendant,    Plaintiflf  excepted.* 

Morton,  C.  J.  It  is  the  general  rule  that  there  is  no  warranty  im- 
plied in  the  letting  of  premises  that  they  are  reasonably  fit  for  use. 
The  lessee  takes  an  estate  in  the  premises  hired,  and  he  takes  the  risk 
of  the  quality  of  the  premises,  in  the  absence  of  an  express  or  implied 
warranty  by  the  lessor,  or  of  deceit.  A  lessee,  therefore,  if  he  is  injured 
by  reason  of  the  imsafe  condition  of  the  premises  hired,  cannot  main- 
tain an  action  against  the  lessor,  in  the  absence  of  warranty  or  of  mis- 
representation. In  cases  where  lessors  have  been  held  liable  for  such 
injuries  to  the  lessees,  the  liability  is  founded  in  neghgence.  Looney  v. 
McLean,  129  Mass.  33.  Bowe  v.  Hunking,  135  Mass.  380,  and  cases 
cited. 

>  McClain  v.  Bank,  100  Me.  437;  Moffatt  v.  Kenny,  174  Mass.  311  Accord. 

Hanson  v,  Spokane  Water  Co.,  58  Wash.  6  Contra,  Compare  Bucking^ham  v, 
Fisher.  70  lU.  121. 

Liahtlity  to  one  who  ha^  himness  wUh  an  abutting  owner  who  has  a  right  to  use  the 
way:  see  Cavanagh  v.  Block,  192  Mass.  63. 

As  to  what  constUiUes  an  implied  invitation^  see  Bryan  v.  Stewart,  194  Ala.  353; 
Baltimore  R.  Co.  v.  Slaughter,  167  Ind.  330:  Pittsburgh  R.  Co.  v.  Simons,  168 
Ind.  333;  Stanwood  v.  Clancey,  106  Me.  72;  Kalus  v.  Bass,  122  Md.  467;  Walker 
V,  Winstanley,  155  Mass.  301 ;  Plummer  v.  Dill,  156  Mass.  426;  Chenery  v.  Fitch- 
burg  R.  Co.,  160  Mass.  211;  Tracey  v.  Page,  201  Mass.  62*  Shaw  v.  Ogden,  214 
Mass.  475;  Romana  v.  Boston  R.  Co.,  218  Mass.  76;  Allen  v.  Yazoo  R.  Co., 
Ill  Miss.  267;  Black  v.  Central  R.  Co.,  85  N.  J.  Law,  197;  Heskell  v.  Auburn 
Light  Co.,  209  N.  Y.  86. 

<  The  statement  has  been  much  abridged. 


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SECT.  VI.]    TUTTLE  V.  GILBEBT  MANUFACTURING  CO.  221 

The  plaintiff  admits  the  geneanJ  rule,  but  contends  that  this  ease  is 
taken  out  of  it  because,  at  the  time  of  the  letting,  the  defendant  agreed 
to  repair  and  put  in  a  safe  condition  the  stable  floor,  the  unsafe  con- 
dition of  whidi  caused  the  injury.  The  contract  relied  on  is  a  loose 
one;  it  fixed  no  time  within  which  the  repairs  were  to  be  made,  and 
it  is  doubtful  whether  the  evidence  proved  any  breach  of  contract  on 
the  part  of  the  defendant.  But  if  we  assume  that  the  contract  was  to 
make  the  repairs  within  a  reasonable  time,  and  that  the  jury  would 
be  justified  in  finding  that  the  defendant  had  not  performed  it  within 
a  reasonable  time,  the  question  is  whether,  for  such  a  breach,  the  plain- 
tiff can  maintain  an  action  of  tort  to  recover  for  personal  injuries 
sustained  by  reason  of  the  defective  condition  of  the  stable  floor. 

The  cases  are  numerous  and  confusing  as  to  the  dividing  line  be- 
tween actions  of  contract  and  of  tort,  and  there  are  many  cases  where 
a  man  may  have  his  election  to  bring  either  action.  Where  the  cause 
of  action  arises  merely  from  a  breach  of  promise,  the  action  is  in 
contract. 

The  action  of  tort  has  for  its  foundation  the  negligence  of  the  de- 
fendant, and  this  means  more  than  a  mere  breach  of  a  promise.  Other- 
wise, the  failure  to  meet  a  note,  or  any  other  promise  to  pay  money, 
would  sustain  an  action  in  tort  for  negligence,  and  thus  the  promisor 
be  made  liable  for  all  the  consequential  damages  arising  from  such 
failure. 

As  a  general  rule,  there  must  be  some  active  negligence  or  misfea- 
sance to  support  tort.  There  must  be  some  breach  of  duty  distinct 
from  breach  of  contract.  In  the  case  at  bar,  the  utmost  shown  against 
the  defendant  is  that  there  was  imreasonable  delay  on  its  part  in  per- 
forming an  executory  contract.  As  we  have  seen,  it  is  not  Uable  by 
reason  of  the  relation  of  lessor  and  lessee,  but  its  lialnlity,  if  any, 
must  rest  solely  upon  a  breach  of  this  contract. 

We  do  not  see  how  the  cases  would  differ  in  principle  if  an  action 
were  brou^t  against  a  third  person  who  had  contracted  to  repair  the 
stable  floor  and  had  imreasonably  delayed  in  performing  his  contract. 
We  are  not  aware  of  any  authority  for  maintaining  such  an  action.  If 
the  defendant  had  performed  the  work  contemplated  by  its  contract 
unskilfully  and  negligently,  it  would  be  liable  to  an  action  of  tort, 
because  in  such  case  there  would  be  a  misfeasance,  which  is  a  suffi- 
cient foundation  for  an  action  of  tort.  Such  was  the  case  of  Gill  t;. 
Middleton,  106  Mass.  477. 

The  case  of  Ashley  v.  Root,  4  Allen,  504,  does  not  conflict  with  our 
view,  but  recognizes  the  rule  that  to  sustain  an  action  of  tort  there 
must  be  more  than  a  mere  breach  of  contract. 

The  plaintiff  now  argues  that  he  had  the  right  to  go  to  the  jury 
upon  the  questions  of  warranty  and  deceit.  It  does  not  appear  that 
this  claim  wa3  made  in  the  Sup^or  Court;  but  it  is  clear  that  there 


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222  SOUTHCOTE  V,   STANLEY  [CHAP.  n. 

is  no  suflScient  evidence  of  any  warranty  that  the  stable  was  safe,  or  of 
any  deceit  or  misrepresentation  on  the  part  of  the  defendant  ol*  its 
agent.  Exceptions  overruled.^ 


SOUTHCOTE  V.  STANLEY 
In  the  Exchequer,  June  4,  1856.     /  • 
Reported  in  1  Hurlsione  &  Nermann  247. 

The  declaration  stated  that  at  the  time  of  the  committing  of  the 
grievances,  &c.,  the  defendant  was  possessed  of  an  hotel,  into  which  he 
had  then  permitted  and  invited  the  plaintiff  to  come  as  a  visitor  of  the 
defendant,  and  in  which  the  plaintiff  as  such  visitor  then  lawfully  was 
by  the  permission  and  invitation  of  the  defendant,  and  in  which  hotel 
there  then  was  a  glass  door  of  the  defendant  which  it  was  then  neces- 
sary for  the  plaintiff,  as  such  visitor,  to  open  for  the  purpose  of  leaving 
the  hotel,  and  which  the  plaintiff,  as  such  visitor,  then  by  the  per- 
mission of  the  defendant  and  with  his  knowledge,  and  without  any 
warning  from  him,  lawfully  opened  for  the  purpose  aforesaid,  as  a  door 
which  was  in  a  proper  condition  to  be  opened;  nevertheless,  by  and 
through  the  mere  carelessness,  negligence,  and  default  of  the  defend- 
ant in  that  behalf,  the  said  door  was  then  in  an  insecure  and  dangerous 
condition,  and  unfit  to  be  used  or  opened,  and  by  reason  of  the  said 
door  being  in  such  insecure  and  dangerous  condition  and  unfit,  as 
aforesaid,  and  of  the  then  carelessness,  negligence,  default,  and  im- 
proper conduct  of  the  defendant  in  that  behalf,  a  large  piece  of  glass 
from  the  said  door  fell  out  of  the  same  to  and  upon  the  plaintiff,  and 
wounded  him,  and  he  sustained  divers  bodily  injuries,  and  remained 
ill  and  unable  to  work  for  a  long  time,  &c. 

Demurrer  and  joinder  therein. 

Raymond,  in  support  of  the  demurrer.  The  declaration  discloses 
no  cause  of  action.    It  is  not  stated  that  the  plaintiff  was  in  the  hotel 

*  Anderson  v.  Robinson,  182  Ala.  615;  Hedskin  v.  Gillespie,  33  Ind.  App.  650; 
Shackford  v.  Coffin,  95  Me.  69;  Rolfe  v.  Tufts,  216  Mass.  663;  Brady  v,  Klein,  133 
Mich.  422;  Korach  v.  LoefFel,  168  Mo.  App.  414  (but  see  Graff  v,  Lemp  Brewing 
Co.,  130  Mo.  App.  618;  Marcheck  v.  Klute,  133  Mo.  App.  280);  Dustin  v.  Curtis, 
74  N.  H.  266;  Schick  v.  Fleischhauer,  26  App.  Div.  210;  Stelz  v.  Van  Dusen,  93 
App.  Div.  358;  Kushes  v.  Ginsberg,  99  App.  Div.  417;  Boden  v.  Scholtz,  101  App. 
Div.  1;  Mitchell  v.  Stewart,  187  Pa.  St.  217;  Davis  v.  Smith,  26  R.  1. 129  Accord. 
See  also  Clyne  v.  Helmes,  61  N.  J.  Law,  358.  Compare  Miles  v.  Janvrin,  196  Mass. 
431,  200  Mass.  514;  Flanagan  v.  Welch,  220  Mass.  186. 

Sontag  V.  O'Hare,  73  111.  App.  432;  Schwandt  v.  Metzger  Oil  Co.,  93  111.  App. 
365  (but  see  Cromwell  v.  Allen,  151  111.  App.  404) ;  Good  t».  Von  Hemert,  114  Minn. 
393;  Glidden  v.  Goodfellow,  124  Mhm.  101;  Keegan  v.  Heileman  Brewing  Co., 
129  Minn.  496;  Merchants  Cotton  Press  Co.  v.  Miller,  135  Tenn.  187;  Lowe  v. 
O'Brien,  77  Wash.  677  Contra.    See  Moore  v.  Steljes,  69  Fed.  618. 

Liability  where  landlord  makes  repairs  negligently:  see  Mann  v.  Fuller,  63  Kan, 
664:  Gill  v.  Middleton,  105  Mass.  477;  Thomas  v.  Lane,  221  Mass.  447;  Finer  v. 
Nichols,  175  Mo.  App.  525;  Carlon  v.  City  Sav.  Bank,  86  Neb.  659;  Wynne  v. 
Haight,  27  App.  Div.  7:  Marston  v.  Frisbie.  168  App.  Div.  666;  Flam  v.  Green- 
berg,  (App.  Div.)  158  N.  y.  Supp.  670;  Wilcox  v.  Mines,  100  Tenn.  538. 


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SECT.  VI.]  80UTHC0TE  V.   STANLEY  223 

as  a  guest,  but  merely  as  a  visitor;  and  there  is  no  allegation  that  the 
defendant  knew  of  the  dangerous  condition  of  the  door.  To  render 
the  defendant  liable,  the  declaration  ought  to  have  shown  some  con- 
tract between  the  plaintiff  and  the  defendant  which  imposed  on  the 
latter  the  obligation  of  taking  care  that  the  door  was  secure;  or  it 
should  have  alleged  some  negligence  on  the  part  of  the  defendant  in 
the  performance  of  a  duty  which  he  owed  to  the  plaintiff.  [Bram- 
WELL,  B.  If  a  person  invites  another  into  his  house,  and  the  latter 
can  only  enter  through  a  particular  door,  is  it  not  the  duty  of  the 
former  to  take  care  that  the  door  is  in  a  secure  condition  ?]  He  may 
not  be  aware  that  the  door  is  insecrn^.  This  declaration  only  alleges 
that  through  the  carelessness,  negligence,  and  default  of  the  defendant 
the  door  was  in  a  dangerous  condition;  that  cannot  be  read  as  involv- 
ing the  allegation  that  the  defendant  knew  that  the  door  was  insecure. 
All  facts  necessary  to  raise  a  legal  liability  must  be  strictly  averred. 
Metcalfe  v.  Hetherington,  11  Exch.  257.  [Axderson,  B.  It  is  not 
stated  that  it  was  the  duty  of  the  defendant,  as  an  hotel  keeper,  to 
take  care  that  the  door  was  secure.  Suppose  a  person  invites  another 
to  his  house,  and  the  latter  runs  his  hand  through  a  pane  of  glass,  how 
is  the  former  liable  ?]    The  Court  then  caUed  on 

Grayy  contra.  The  declaration  shows  a  duty  on  the  part  of  the  de- 
fendant, and  a  breach  of  that  duty.  It  is  inamateriaJ  whether  the  in- 
jury takes  place  in  a  private  house,  or  in  a  shop,  or  in  a  street;  the 
only  question  is  whether  the  person  who  complains  was  lawfully 
there  ?  The  case  is  similar  in  principle  to  that  of  Randleson  v.  Mur- 
ray, 8  A.  &  E.  109,  which  decided  that  a  warehouseman  who  lowers 
goods  from  his  warehouse  is  boimd  to  use  proper  tackle  for  that  pm-- 
pose.  [Alderson,  B.  It  is  the  duty  of  every  person  who  hangs  any- 
thing over  a  public  way  to  take  care  that  it  is  suspended  by  a  proper 
rope.]  Whether  it  be  a  private  house  or  a  shop,  a  duty  is  so  far  im- 
posed on  the  occupier  to  keep  it  reasonably  secure,  that  if  a  person 
lawfully  enters,  and  through  the  negligence  of  the  occupier  in  leaving 
it  in  an  insecure  state  receives  an  injury,  the  occupier  is  responsible. 
Here  it  is  alleged  that  the  defendant  invited  the  plaintiff  to  come  into 
the  hotel  as  a  visitor;  that  shows  that  he  was  lawfully  there.  [Pol- 
lock, C.  B.  The  position  that  an  action  lies  because  the  plaintiff  was 
lawfully  in  the  house,  cannot  be  supported ;  a  servant  is  lawfully  in  his 
master's  house  and  yet  if  the  balusters  fell,  whereby  he  was  injured, 
he  could  not  maintain  an  action  against  the  master.  If  a  lady  who  is 
invited  to  dinner  goes  in  an  expensive  dress,  and  a  servant  spills  some- 
thing over  her  dress  which  spoils  it,  the  master  of  the  house  would  not 
be  liable.  Where  a  person  enters  a  house  by  invitation  the  same  rule 
prevails  as  in  the  case  of  a  servant.  A  visitor  would  have  no  right  of 
action  for  being  put  in  a  damp  bed,  or  near  a  broken  pane  of  glass, 
whereby  he  caught  cold.  Alderson,  B.  The  case  of  a  shop  is  differ- 
ent, because  a  shop  is  open  to  the  pubUc;  and  there  is  a  distinction 


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224  SOUTHCOTB  V.  STANLEY  [CHAP.  H. 

between  persons  who  come  on  business  and  those  who  come  by 
invitation.] 

Pollock,  C.  B,  We  are  all  of  opinion  that  the  declaration  cannot 
be  supported,  and  that  the  defendant  is  entitled  to  judgment.  I  do 
not  think  it  necessary  to  point  out  the  reasons  by  which  I  have  come  to 
that  conclusion;  because  it  follows  from  the  decision  of  this  Court 
(Priestley  v.  Fowler,  3  M.  &  W.  1)  that  the  mere  relation  of  master 
and  servant  does  not  create  any  impUed  duty  on  the  part  of  the  master 
to  take  more  care  of  the  servant  than  he  may  reasonably  be  expected 
to  do  of  himself.  That  decision  has  been  followed  by  several  cases,^ 
and  is  now  established  law,  though  I  believe  the  principle  was.  not 
recognized  until  recent  times.  The  reason  for  the  rule  is  that  the 
servant  imdertakes  to  run  all  the  ordinary  risks  of  service,  including 
those  arising  from  the  negligence  of  his  fellow-servants.  The  rule  ap- 
pUes  to  all  the  members  of  a  domestic  establishment,  so  that  the  mas- 
ter is  not  in  general  liable  to  a  servant  for  injury  resulting  from  the 
negligence  of  a  fellow-servant;  neither  can  one  servant  maintain  an 
action  against  another  for  negligence  whilst  engaged  in  their  common 
employment.  The  same  principle  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. 

Aldbbson,  B.    I  am  of  the  same  (pinion. 

Bramwell,  B.  I  agree  with  Mr.  Gray  to  tkis  extent,  that  where  a 
person  is  in  the  house  of  another,  either  on  business  or  for  any  other 
purpose,  he  has  a  right  to  expect  that  the  owner  of  the  house  wHl  take 
reasonable  care  to  pxrotect  him  from  injury;  for  instance,  that  he  will 
not  allow  a  trap-door  to  be  open  through  which  the  visitor  may  fall. 
But  in  this  case  my  difficulty  is  to  see  that  the  declaration  charges  any 
act  of  ccmunission.  If  a  person  asked  another  to  walk  in  his  garden, 
in  whidi  he  had  placed  spring-guns  or  men-traps,  and  the  latter,  not 
being  aware  of  it,  was  thereby  injured,  that  would  be  an  act  of  camr 
mission.  But  if  a  person  asked  a  visitor  to  sle^  at  his  house,  and  the 
former  omitted  to  see  that  tl^  sheets  were  properly  aired,  whereby 
the  visitor  caught  cold,  he  could  maintain  no  action,  for  there  was  no 
act  of  commisirion,  but  simply  an  act  of  omisson.  This  declaration 
merely  alleges  that "  by  and  through  the  mere  carelessness,  negligence, 
default,  and  improper  conduct  of  the  defendant,"  the  glass  fell  from 
the  door.  That  means  a  want  of  care,  —  a  default  in  not  doing  some- 
thing. The  words  are  all  negatives,  and  und^  these  circumstances 
the  action  is  not  maintainable.  I  doubted  whether  the  wwds  "  care- 
lessness, negligence,  and  improper  conduct,"  Ac,  might  not  mean 
something  equivalent  to  actual  commission,  but  on  the  best  considera- 
tion which  I  can  give  the  subject,  it  appears  to  me  that  they  do  not 

*  See  Hutchinson  v.  The  Newcastle,  York,  A  Berwick  Railway  Company,  6 
Erch.  343;  Wiggett  v.  Fox,  11  Exch.  832.  —  Reporter's  Note. 


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SECT.  VI.]  BEEHLER  V.  DANIELS  225 

mean  that,  but  merely  point  to  a  negative.    If  I  misconstrue  the 
declaration  it  is  the  fault  of  those  who  so  framed  it. 

Judgment  far  the  defendant.^ 


BEEHLER  v.  DANIELS 

SiTFBEME  Court,  Rhode  Island,  Mat  1, 1894. 

Reported  in  18  Rhode  Island  Reports,  563. 

Trespass  on  the  Case.  Certified  from  the  Common  Pleas  Divi- 
sion on  demurrer  to  the  declaration. 

Stiness,  J.  The  plaintiff  seeks  to  recover  for  injury  caused  by  fall- 
ing into  an  elevator  well  in  the  defendants'  building,  which  he  entered 
in  the  discharge  of  his  duty,  as  a  member  of  the  fire  department  of  the 
city  of  Providence,  in  answering  a  call  to  extinguish  a  fire.  The  negli- 
gence alleged  in  the  first  coimt  is  a  failure  to  guard  and  protect  the 
well;  and  in  the  second  coimt  such  a  packing  of  merchaiidise  as  to 
guide  and  conduct  one  to  the  imguarded  and  unprotected  well.  The 
defendants  demur  to  the  declaration,  alleging  as  groimds  of  demiurer 
that  they  owed  no  duty  to  the  plaintiff;  that  he  entered  their  premises 
in  the  discharge  of  a  public  duty  and  assumed  the  risks  of  his  employ- 
ment; that  he  was  in  the  premises  without  invitation  from  them;  and 
that  they  are  not  liable  for  consequences  which  they  could  not  and 
were  not  boimd  to  foresee. 

The  decisive  question  thus  raised  is.  Did  the  defendants,  imder  the 
circumstances,  owe  to  the  plaintiff  a  duty,  for  failure  in  which  they 
are  liable  to  him  in  damages  ?  The  question  is  not  a  new  one,  and 
we  think  it  is  safe  to  say  that  it  has  never  been  answered  otherwise 
than  in  favor  of  the  defendants.  The  plaintiff  argues  that  it  was  his 
duty  to  enter  the  premises,  and,  consequently,  since  an  owner  may 
reasonably  anticipate  the  liability  of  a  fire,  a  duty  arises  from  the 
owner  to  the  fireman  to  keep  his  premises  guarded  and  safe.  An  ex- 
tension of  this  argument  to  its  legitimate  result,  as  a  rule  of  law,  is 
suflSciently  startling  to  show  its  imsoundness.  The  liability  to  fire  is 
common  to  all  buildings  and  at  all  times.  Hence  every  owner  of 
every  building  must  at  all  times  keep  every  part  of  his  property, 
in  such  condition,  that  a  fireman,  unacquainted  with  the  place,  and 
groping  about  in  darkness  and  smoke,  shall  come  upon  no  obstacle, 
opening,  machine  or  anything  whatever  which  may  cause  him  injury. 
TTiis  argument  was  urged  in  Woodruff  v.  Bowen,  136  Ind.  431;  but 

*  Whether  the  result  in  the  above  case  is  correct  is  a  question  not  yet  decided  in 
most  of  the  United  States,  and  upon  which  conflicting  opinions  have  been  ex- 
pressed. See  Hart  v.  Cole,  166  Mass.  475;  Knowlton,  J.,  in  Coupe  v,  Piatt,  172 
Mass.  458,  459:  Bigelow  on  Torts,  7th  ed.,  pp.  362, 363,  sections  740-743, 8th  ed., 
p.  158:  Burdick  on  Torts,  3d  ed.,  sect.  555;  2  Shearman  &  Redfield  on  Negligence, 
4th  ed.,  sect.  706;  Barman  v.  Spencer,  (Ind.)  49  N.  E.  9,  11,  12;  Beard  w.  Klus- 
meier,  158  Ky.  153;  Land  v,  Fitzgerald,  68  N.  J.  Law,  28. 


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226  BEEHLER  V.  DANIELS  [CHAP.  U. 

the  court  said:  "  We  are  of  the  opinion  that  the  owner  of  a  building 
in  a  populous  city  does  not  owe  it  as  a  duty  at  common  law,  inde- 
pendent of  any  statute  or  ordinance,  to  keep  such  building  safe  for 
firemen  or  other  oflScers,  who,  in  a  contingency,  may  enter  the  same 
under  a  license  conferred  by  law/' 

Undoubtedly  the  plaintiff  in  this  case  had  the  right  to  enter  the 
defendants'  premises,  and  the  character  of  his  entry  was  that  of  a 
licensee.  Cooley  on  Torts,  *313.  But  no  such  duty  as  is  averred  in 
this  declaration  is  due  from  an  owner  to  a  licensee.  This  question  is 
discussed  in  the  case  just  cited,  as  also  in  many  others.  For  example, 
in  Reardon  v,  Thompson,  149  Mass.  267,  Holmes,  J.,  says:  "  But  the 
general  rule  is  that  a  licensee  goes  upon  land  at  his  own  risk,  and 
must  take  the  premises  as  he  finds  them.  An  open  hole,  which  is  not 
concealed  otherwise  than  by  the  darkness  of  the  night,  is'  a  danger 
which  a  licensee  must  avoid  at  his  peril."  So  in  Mathews  v.  Bensel, 
51  N.  J.  Law,  30,  Beasley,  C.  J.,  says:  "  The  substantial  groimd  of 
complaint  laid  in  the  coimt  is,  that  the  defendants  did  not  properly 
construct  their  planer,  and,  being  a  dangerous  instrument,  did  not  sur- 
roimd  it  with  proper  safeguards.  But  there  is  no  legal  principle  that 
imposes  such  a  duty  as  this  on  the  owner  of  property  with  respect  to 
a  mere  licensee.  This  is  the  recognized  rule.  In  the  case  of  Holmes 
V,  Northeastern  Railway  Co.,  L.  R.  4  Exch.  254,  256,  Baron  Channell 
says:  '  That  where  a  person  is  a  mere  licensee  he  has  no  cause  of 
action  on  accoimt  of  the  dangers  existing  in  the  place  he  is  pennitted 
to  enter.'  "  In  Parker  v.  Portland  Publishing  Co.,  69  Me.  173,  this 
question  is  fully  examined,  the  court  holding  it  to  be  well  settled,  if 
the  plaintiff  was  at  the  place  where  the  injiuy  was  received  by  license 
merely,  that  the  defendant  would  owe  him  no  duty  and  that  he  could 
not  recover.  See  also  Indiana,  etc..  Railway  Co.  v.  Bamhart,  115 
Ind.  399;  Gibson  v.  Leonard,  37  111.  App.  344;  Bedell  v.  Berkey,  76 
Mich.  435. 

There  is  a  clear  distinction  between  a  license  and  an  invitation  to 
enter  premises,  and  an  equally  clear  distinction  as  to  the  duty  of  an 
owner  in  the  two  cases.  An  owner  owes  to  a  licensee  no  duty  as  to 
the  condition  of  premises,  imless  imposed  by  statute,  save  that  he 
should  not  knowingly  let  him  run  upon  a  hidden  peril  or  wilfully 
cause  him  harm;  while  to  one  invited  he  is  imder  obligation  for  rea- 
sonable security  for  the  purposes  of  the  invitation.  The  plaintiff's 
declaration  does  not  set  out  a  cause  of  action  upon  either  of  these 
grounds,  and  the  cases  cited  and  relied  on  by  him  fall  within  the  two 
classes  of  cases  described,  and  mark  the  line  of  duty  very  clearly. 
Parker  v.  Barnard,  135  Mass.  116,  was  the  case  of  a  police  oflScer  who 
had  entered  a  building,  the  doors  of  which  were  foimd  open  in  the 
night  time,  to  inspect  it  according  to  the  rules  of  the  police  depart- 
ment, and  fell  down  an  unguarded  elevator  well.  A  statute  required 
such  wells  to  be  protected  by  railings  and  trap-doors.    Judgment 


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SECT.  VI.]  BEEHLER  V.  DANIELS  227 

having  been  given  for  the  defendant  at  the  trial,  a  new  trial  was 
ordered  upon  the  ground  of  a  violation  of  statute.  The  court  says: 
"  The  owner  or  occupant  of  land  or  a  building  is  not  liable,  at  common 
law,  for  obstructions,  pitfalls,  or  other  dangers  there  existing,  as,  in 
the  absence  of  any  inducement  or  invitation  to  others  to  enter,  he 
may  use  his  property  as  he  pleases.  But  he  holds  his  property  '  sub- 
ject to  such  reasonable  control  and  regulation  of  the  mode  of  keeping 
and  use  as  the  legislature,  imder  the  police  power  vested  in  them  by 
the  Constitution  of  the  Commonwealth,  may  think  necessary  for  the 
preventing  of  injuries  to  the  rights  of  others  and  the  security  of  the 
public  health  and  welfare.'  "  Then,  likening  the  plaintiff  to  a  fireman, 
the  court  also  says:  "  Even  if  they  must  encoimter  the  danger  arising 
from  neglect  of  such  precautions  against  obstructions  and  pitfalls  as 
those  invited  or  induced  to  enter  have  a  right  to  expect,  they  may  de- 
mand, as  against  the  owners  or  occupants,  that  they  observe  the 
statute  in  the  construction  and  management  of  their  building."  In 
Learoyd  v.  Grodfrey,  138  Mass.  315,  a  police  oflScer  fell  down  an  im- 
covered  well  in  or  near  a  passageway  to  a  house  where  he  was  called  to 
quell  a  disturbance  of  the  peace.  A  verdict  for  the  plaintiff  was  sus- 
tained upon  the  groimd  that  the  jury  must  have  foimd  that  the  oflScer 
was  using  the  passageway  by  the  defendant's  invitation  and  that  the 
evidence  warranted  the  finding.  Gordon  v.  Cummings,  152  Mass. 
513,  was  the  case  of  a  letter  carrier  who  fell  into  an  elevator  well,  in  a 
hallway  where-he  was  accustomed  to  leave  letters  in  boxes  put  there 
for  that  purpose.  The  court  held  that  there  was  an  implied  invitation 
to  the  carrier  to  enter  the  premises.  In  Engel  v.  Smith,  82  Mich.  1, 
the  plaintiff  fell  through  a  trap-door  left  open  in  a  building  where  he 
was  employed.  The  question  of  duty  is  not  discussed  in  the  case  but 
simply  the  fact  of  ne^gence.  In  Bennett  v.  Railroad  Co.,  102  U.  S. 
577,  the  plaintiff,  a  passenger,  fell  through  a  hatch  hole  in  the  depot 
floor.  The  court  construed  the  declaration  as  setting  out  facts  which 
amoimted  to  an  invitation  to  the  plaintiff  to  pass  over  the  route  which 
he  took  through  the  shed  depot  where  the  hatch  hole  was. 

In  the  present  case  the  plaintiff  sets  out  no  violation  of  a  statute,  or 
facts  which  amoimt  to  an  invitation,  and,  consequently,  under  the 
well-settled  rule  of  law,  the  defendants  were  under  no  liability  to  him 
for  the  condition  of  their  premises  or  the  packing  of  their  merchandise. 
The  demurrer  to  the  declaration  must  therefore  be  sustained.^ 

*  Pennebaker  v.  San  Joaquin  Light  Co.,  158  Cal.  579;  Liint  v.  Poet  Printing  Co., 
48  Col.  316;  Gibson  v.  Leonard,  143  HI.  182,  37  111.  App.  344;  Thrift  v.  Vandalia 
R.  Co.,  145  HI.  App.  414;  WoodruflF  v.  Bowen,  136  Ind.  431;  Hanailton  v.  Minne- 
apolis Desk  Co„  78  Minn.  3;  New  Omaha  Electric  Light  Co.  v.  Anderson,  73  Neb. 
84;  Woods  v.  M.iller,  30  App.  Div.  232;  Eckes  v.  Stetler,  98  App,  Div.  76;  Houston 
R.  Co.  V,  O'Leary,  (Tex.  Civ.  App.)  136  S.  W.  601  Accord.  But  see  Wilson  v. 
Great  Southern  Tel.  Co.,  41  La.  Ann.  1041. 

LdabUity  to  police  officer  or  other  person  in  by  permission  of  law:  see  Casey  v, 
Adams,  234  111.  350;  Eckels  i».  Maher,  137  HI.  App.  45;  Blatt  v,  McBarron.  161 
Mass.  21;  Racine  v,  Morris,  136  App.  Div.  467;  Woods  v.  Lloyd,  (Pa.)  16  Atl.  43; 


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228  WINTERBOTTOM  V.  WRIGHT  [CHAP.  n. 


Section  VII 

Liability  to  Third  Persons  op  Maker  or  Vendor  op  a 

Chattel 


WINTERBOTTOM  v.  WRIGHT 

In  the  Exchequer,  June  6,  1842. 

Reported  in  10  Meesan  &  Welahyt  109. 

Case.  The  declaration  stated,  that  the  defendant  was  a  contractor 
for  the  supply  of  mail-coaches,  and  had  in  that  character  contracted 
for  hire  and  reward  with  the  Postmaster-General,  to  provide  the  mail- 
coach  for  the  purpose  of  conveying  the  mail-bags  from  Hartford,  in 
the  county  of  Chester,  to  Holyhead:  That  the  defendant,  imder  and 
by  virtue  of  the  said  contract,  had  agreed  with  the  said  Postmaster- 
General  that  the  said  mail-coach  should,  during  the  said  contract,  be 
kept  in  a  fit,  proper,  safe,  and  secure  state  and  condition  for  the  said 
purpose,  and  took  upon  himself,  to  wit,  imder  and  by  virtue  of  the 
said  contract,  the  sole  and  exclusive  duty,  chaise,  care,  and  burden 
of  the  repairs,  state,  and  condition  of  the  said  mail-coach;  and  it 
had  become  and  was  the  sole  and  exclusive  duty  of  the  defendant,,  to 
wit,  imder  and  by  virtue  of  his  said  contract,  to  keep  and  maintain 
the  said  mail-coach  in  a  fit,  proper,  safe,  and  secure  state  and  condi- 
tion for  the  purpose  aforesaid:  That  Nathaniel  Atkinson  and  other 
persons,  having  notice  of  the  said  contract,  were  under  contract  with 
the  Postmaster-General  to  convey  the  said  mail-coach  from  Hartford 
to  Holyhead,  and  to  supply  horses  and  coachmen  for  that  purpose, 
and  also  not,  on  any  pretence  whatever,  to  use  or  employ  any  other 
coach  or  carriage  whatever  than  such  as  should  be  so  provided,  di- 
rected, and  appointed  by  the  Postmaster-General:  That  the  plaintiff, 
being  a  mail-coachman,  and  thereby  obtaining  his  livelihood,  and 
whilst  the  said  several  contracts  were  in  force,  having  notice  thereof, 
and  trusting  to  and  confiding  in  the  contract  made  between  the  de- 
fendant and  the  Postmaster-General,  and  believing  that  the  said  coach 
was  in  a  fit,  safe,  secure,  and  proper  state  and  condition  for  the  pur- 
Burroughs  Adding  Machine  Co.  v.  Fryar,  132  Tenn.  612;  Greenville  v.  Pitts, 
102  Tex.  1. 

But  compare  Kennedy  v.  Heisen,  182  111.  App.  200;  Parker  ».  Barnard,  135 
Mass.  116;  Learoyd  v.  Godfrey,  138  Mass.  315;  Pickwick  v.  McCauliff,  193  Mass. 
70. 

LiabUity  to  volunteer  sahor  in  case  of  fire:  see  Kohn  v.  Lovett,  44  Ga.  251;  Gib- 
son v.  Leonard,  143  HI.  182. 

LiabUity  to  'person  who  has  contractiud  right  to  inspect  the  premises:  see  Dashields 
V,  Moses,  35  App.  D.  C.  583. 


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SECT.  Vn,]  WINTERBOTTOM  V.  WRIGHT  229 

pose  aforesaid,  and  not  knowing  and  having  no  means  of  knowing  to 
the  contrary  thereof,  hired  himself  to  the  said  Nathaniel  Atkinson 
and  his  co-contractors  as  mail-coachman,  to  drive  and  take  the  con- 
duct of  the  said  mail-coach,  which  but  for  the  said  contract  of  the 
defendant  he  would  not  have  done.  The  declaration  then  averred, 
that  the  defendant  so  improperly  and  negligently  conducted  himself, 
and  so  utterly  disregarded  his  aforesaid  contract,  and  so  wholly 
n^ected  and  failed  to  perform  his  duty  in  this  behalf,  that  heretofore, 
to  wit,  on  the  8th  of  August,  1840,  whilst  the  plaintiff,  as  such  mail- 
coachman  so  hired,  was  driving  the  said  mail-coach  from  Hartford  to 
Holyhead,  the  same  coach,  being  a  mail-coach  foimd  and  provided  by 
the  defendant  imder  his  said  contract,  and  the  defendant  then  acting 
imder  his  said  contract,  and  having  the  means  of  knowing  and  then 
well  knowing  all  the  aforesaid  premises,  the  said  mail-coach  being 
then  in  a  frail,  weak,  infirm,  and  dangerous  state  and  condition,  to  wit, 
by  and  through  certain  latent  defects  in  the  state  and  condition 
thereof,  and  unsafe  and  unfit  for  the  use  and  purpose  aforesaid,  and 
from  no  other  cause,  circmnstance,  matter,  or  thing  whatsoever  gave 
way  and  broke  down,  whereby  the  plaintiff  was  thrown  from  his  seat, 
and,  in  consequence  of  injuries  then  received,  had  become  lamed  for 
life. 

To  this  declaration  the  defendant  pleaded  several  pleas,  to  two  of 
which  there  were  demurrers;  but,  as  the  Court  gave  no  opinion  as  to 
their  validity,  it  is  not  necessary  to  state  them. 

Peacock,  who  appeared  in  support  of  the  demurrers,  having  argued 
against  the  suflSciency  of  the  pleas,  — 

ByleSy  for  the  defendant,  objected  that  the  declaration  was  bad  in 
substance.  This  is  an  action  brought,  not  against  Atkinson  and  his 
co-contractors,  who  were  the  employers  of  the  plaintiff,  but  against 
the  person  employed  by  the  Postmaster-General,  and  totally  imcon- 
nected  with  them  or  with  the  plaintiff.  Now  it  is  a  general  rule,  that 
wherever  a  wrong  arises  merely  out  of  the  breach  of  a  contract,  which 
is  the  case  on  the  face  of  this  declaration,  whether  the  form  in  which 
the  action  is  conceived  be  ex  contrddu  or  ex  delicto^  the  party  who 
made  the  contract  alone  can  sue:  Tollit  v,  Sherstone,  5  M.  &  W.  283. 
If  the  rule  were  otherwise,  and  privity  of  contract  were  not  requisite, 
there  would  be  no  limit  to  such  actions.  If  the  plaintiff  may,  as  in 
this  case,  run  through  the  length  of  three  contracts,  he  may  run 
through  any  number  or  series  of  them;  and  the  most  alarming  conse- 
quences would  follow  the  adoption  of  such  a  principle.  Levy  v. 
Langridge,  4  M.  &  W.  337,  will  probably  be  referred  to  on  the  other 
side.  But  that  case  was  expressly  decid^  on  the  ground  that  the  de- 
fendant, who  sold  the  gun  by  which  the  plaintiff  was  injured,  although 
he  did  not  personally  contract  with  the  plaintiff,  who  was  a  minor, 
knew  that  it  was  bought  to  be  used  by  him.  Here  there  is  no  allega- 
tion that  the  defendant  knew  that  the  coach  was  to  be  driven  by  the 


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230  WINTERBOTTOM  V.  WRIGHT  [CHAP.  H, 

plaintiff.  There,  moreover,  fraud  was  alleged  in  the  declaration,  and 
found  by  the  jury:  and  there,  too,  the  cause  of  injiuy  was  a  weapon 
of  a  dangerous  nature,  and  tiie  defendant  was  alleged  to  have  had 
notice  of  the  defect  in  its  construction.  Nothing  of  that  sort  appears 
upon  this  declaration. 

Peacock,  contra.  This  case  is  within  the  principle  of  the  decision 
in  Levy  v.  Langridge.  Here  the  defendant  entered  into  a  contract 
with  a  public  officer  to  supply  an  article  which,  if  imperfectly  con- 
structed, was  necessarily  dimgerous,  and  which,  from  its  nature  and 
the  use  for  which  it  was  destined,  was  necessarily  to  be  driven  by  a 
coachman.  That  is  sufficient  to  bring  the  case  within  the  rule  estab- 
lished by  Levy  v.  Langridge.  In  that  case  the  contract  made  by  the 
father  of  the  plainti£F  with  the  defendant  was  made  on  behalf  of  him- 
self and  his  family  generally,  and  there  was  nothing  to  show  that  the 
defendant  was  aware  even  of  the  existence  of  the  particular  son  who 
was  injured.  Suppose  a  party  made  a  contract  with  government  for 
a  supply  of  muskets,  one  of  which,  from  its  misconstruction,  burst 
and  injured  a  soldier:  there  it  is  clear  that  the  use  of  the  weapon  by  a 
soldier  would  have  been  contemplated,  although  not  by  the  particular 
individual  who  received  the  injiuy,  and  could  it  be  said,  since  the 
decision  in  Levy  v.  Langridge,  that  he  could  not  maintain  an  action 
against  the  contractor  ?  So,  if  a  coachmaker,  employed  to  put  on  the 
wheels  of  a  carriage,  did  it  so  negligently  that  one  of  them  flew  oflf,  and 
a  child  of  the  owner  were  thereby  injured,  the  damage  being  the 
natural  and  inunediate  consequence  of  his  negligence,  he  would  siu^ly 
be  responsible.  So,  if  a  party  entered  into  a  contract  to  repair  a 
church,  a  workhouse,  or  other  public  building,  and  did  it  so  insuffi- 
ciently that  a  person  attending  the  former,  or  a  pauper  in  the  latter, 
were  injured  by  the  falling  of  a  stone,  he  could  not  maintain  an  action 
against  any  other  person  than  the  contractor;  but  against  him  he 
must  surely  have  a  remedy.  It  is  like  the  case  of  a  contractor  who 
negligently  leaves  open  a  sewer,  whereby  a  person  passing  along  the 
street  is  injured.  It  is  clear  that  no  action  could  be  maintained  against 
the  Postmaster-General:  Hall  v.  Smith,  2  Bing.  156;  Humphreys  v. 
Mears,  1  Man.  &  R.  187;  Priestly  v.  Fowler.  But  here  the  declara- 
tion alleges  the  accident  to  have  happened  through  the  defendant's 
negligence  and  want  of  care.  The  plaintiff  had  no  opportunity  of 
seeing  that  the  carriage  was  sound  and  secure.  [Alderson,  B.  The 
decision  in  Levy  v,  Langridge  proceeds  upon  the  ground  of  the  knowl- 
edge and  fraud  of  the  defendant.]  Here  also  there  was  fraud: 
the  defendant  represented  the  coach  to  be  in  a  proper  state  for  use, 
and  whether  he  represented  that  which  was  false  within  his  knowledge, 
or  a  fact  as  true  which  he  did  not  know  to  be  so,  it  was  equally  a  fraud 
in  point  of  law,  for  which  he  is  responsible. 

Lord  Abinger,  C.  B.  I  am  clearly  of  opinion  that  the  defendant  is 
entitled  to  our  judgment.    We  ought  not  to  permit  a  doubt  to  rest 


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SECT.  Vn.]        WINTERBOTTOM  V.  WRIGHT  231 

upon  this  subject,  for  our  doing  so  might  be  the  means  of  letting  in 
upon  us  an  infinity  of  actions.  This  is  an  action  of  the  first  impres- 
sion, and  it  has  been  brought  in  spite  of  the  precautions  which  were 
taken,  in  the  judgment  of  this  Court  in  the  case  of  Levy  v.  Lang- 
ridge,  to  obviate  any  notion  that  such  an  action  could  be  maintained. 
We  ought  not  to  attempt  to  extend  the  principle  of  that  decision, 
which,  although  it  has  been  cited  in  support  of  this  action,  wholly 
fails  as  an  authority  in  its  favor;  for  there  the  gun  was  bought  for 
the  use  of  the  son,  the  plaintiff  in  that  action,  who  could  not  make 
the  bargain  himself,  but  was  really  and  substantially  the  party  con- 
tracting. Here  the  action  is  brought  simply  because  the  defendant 
was  a  contractor  with  a  third  person;  and  it  is  contended  that  there- 
upon he  became  liable  to  everybody  who  might  use  the  carriage.  If 
there  had  been  any  groimd  for  such  an  action,  there  certainly  would 
have  been  some  precedent  of  it;  but  with  the  exception  of  actions 
against  inn-keepers,  and  some  few  other  persons,  no  case  of  a  similar 
nature  has  occurred  in  practice.  That  is  a  strong  circumstance,  and 
is  of  itself  a  great  authority  against  its  maintenance.  It  is  however 
contended,  that  this  contract  being  made  on  the  behalf  of  the  public 
by  the  Postmaster-General,  no  action  could  be  maintained  against 
him,  and  therefore  the  plaintiff  must  have  a  remedy  against  the 
defendant.  But  that  is  by  no  means  a  necessary  consequence,  —  he 
may  be  remediless  altogether.  There  is  no  privity  of  contract  between 
these  parties;  and  if  the  plaintiff  can  sue,  every  passenger,  or  even 
any  person  passing  along  the  road,  who  was  injured  by  the  upsetting 
of  the  coach,  might  bring  a  similar  action.  Unless  we  confine  the 
operation  of  such  contracts  as  this  to  the  parties  who  entered  into 
them,  the  most  absurd  and  outrageous  consequences,  to  which  I  can 
see  no  limit,  would  ensue.  Where  a  party  becomes  responsible  to 
the  public,  by  undertaking  a  public  duty,  he  is  liable,  though  the  in- 
jury may  have  arisen  from  the  negligence  of  his  servant  or  agent. 
So,  in  cases  of  public  nuisances,  whether  the  act  was  done  by  the 
party  as  a  servant,  or  in  any  other  capacity,  you  are  liable  to  an  action 
at  the  suit  of  any  person  who  suffers.  Those,  however,  are  cases  where 
the  real  groimd  of  the  liability  is  the  public  duty,  or  the  commission 
of  the  public  nuisance.  There  is  also  a  class  of  cases  in  which  the 
law  permits  a  contract  to  be  turned  into  a  tort;  but  unless  there  has 
been  some  pubUc  duty  imdertaken,  or  public  nuisance  committed, 
they  are  all  cases  in  which  an  action  might  have  been  maintained  upon 
the  contract.  Thus,  a  carrier  may  be  sued  either  in  assumpsit  or 
case;  but  there  is  no  instance  in  which  a  party,  who  was  not  privy 
to  the  contract  entered  into  with  him,  can  maintain  any  such  action. 
The  plaintiff  in  this  case  could  not  have  brought  an  action  on  the 
contract;  if  he  could  have  done  so,  what  would  have  been  his  situation 
supposing  the  Postmaster-General  had  released  the  defendant  ?  That 
would,  at  all  events,  have  defeated  his  claim  altogether.    By  permit- 


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232  WINTERBOTTOM  V.  WRIGHT  [CHAP,  U. 

ting  this  action,  we  should  be  working  this  injustice,  that  after  the 
defendant  had  done  everything  to  the  satisfaction  of  his  employer, 
and  after  all  matters  between  them  had  been  adjusted,  and  all  ac- 
coimts  settled  on  the  footing  of  then-  contract,  we  should  subject 
them  to  be  ripped  open  by  this  action  of  tort  being  brought  against 
him. 

Alderson,  B.  I  am  of  the  same  opinion.  The  contract  in  this 
case  was  made  with  the  Postmaster-General  alone;  and  the  case  is 
just  the  same  as  if  he  had  come  to  the  defendant  and  ordered  a  car- 
riage, and  handed  it  at  once  over  to  Atkinson.  If  we  were  to  hold  that 
the  plaintiff  could  sue  in  such  a  case,  there  is  no  point  at  which  such 
actions  would  stop.  The  only  safe  rule  is  to  confine  the  right  to 
recover  to  those  who  enter  into  the  contract :  if  we  go  one  step  beyond 
that,  there  is  no  reason  why  we  should  not  go  fifty.  The  only  real 
ailment  in  favor  of  the  action  is,  that  this  is  a  case  of  hardship; 
but  that  might  have  been  obviated,  if  the  plaintiff  had  made  himself  a 
party  to  the  contract.  Then  it  is  lu^ed  that  it  falls  within  the  prin- 
ciple of  the  case  of  Levy  v.  Langridge.  But  the  principle  of  that 
case  was  simply  this,  that  the  father  having  bought  the  gun  for  the 
very  purpose  of  being  used  by  the  plaintiff,  the  defendant  made  rep- 
resentations by  which  he  was  induced  to  use  it.  There,  a  distinct 
fraud  was  conunitted  on  the  plaintiff;  the  falsehood  of  the  representa- 
tion was  also  alleged  to  have  been  within  the  knowledge  of  the 
defendant  who  made  it,  and  he  was  properly  held  liable  for  the  conse- 
quences. How  are  the  facts  of  that  case  applicable  to  those  of  the 
present  ?  Where  is  the  allegation  of  misrepresentation  or  fraud  in  this 
declaration  ?  It  shows  nothing  of  the  kind.  Our  judgment  must 
therefore  be  for  the  defendant. 

Gurnet,  B.,  concurred. 

RoLFE,  B.  The  breach  of  the  defendant's  duty,  stated  in  this 
declaration,  is  his  omission  to  keep  the  carriage  in  a  safe  condition; 
and  when  we  examine  the  mode  in  which  that  duty  is  alleged  to  have 
arisen,  we  find  a  statement  that  the  defendant  took  upon  himself,  to 
wit,  imder  and  by  virtue  of  the  said  contract,  the  sole  and  exclusive 
duty,  charge,  care,  and  burden  of  the  repairs,  state,  and  condition  of 
the  said  mail-coach,  and,  during  all  the  time  aforesaid,  it  had  become 
and  was  the  sole  and  exclusive  duty  of  the  defendant,  to  wit,  imder 
and  by  virtue  of  his  said  contract,  to  keep  and  maintain  the  said  mail- 
coach  in  a  fit,  proper,  safe,  and  secure  state  and  condition.  The  duty, 
therefore,  is  shown  to  have  arisen  solely  from  the  contract;  and  the 
fallacy  consists  in  the  use  of  that  word  "  duty."  If  a  duty  to  the 
Postmaster-General  be  meant,  that  is  true;  but  if  a  duty  to  the  plain- 
tiff be  intended  (and  in  that  sense  the  word  is  evidently  used),  there 
was  none.  This  is  one  of  those  unfortunate  cases  in  which  there 
certainly  has  been  damnum,  but  it  is  damnum  absque  injuria;  it  is, 
no  doubt,  a  hardship  upon  the  plaintiff  to  be  without  a  remedy,  but,  by 


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SECT.  VII.]  BLOOD  BALM  COMPANY  V.  COOPEB  233 

that  consideration  we  ought  not  to  be  influenced.    Hard  cases,  it  has 
been  frequently  observed,  are  apt  to  introduce  bad  law. 

Jitdgment  for  the  defendant.^ 


BLOOD  BALM  COMPANY  v.  COOPER 

SUFBEBIE  COUKT,  GEORGIA,  OCTOBEE   14,  1889. 
Reported  in  83  Oeorgia  ReporUy  857. 

Action  by  Cooper  against  Blood  Bahn  Company  in  the  City  Court 
of  Atlanta.    Verdict  for  plaintiff.    Defendants  brought  error.* 

Blandford,  J.  The  main  question  in  this  case  arises  upon  the 
refusal  of  the  Court  below  to  award  a  nonsxiit,  and  the  solution  of  this 
question  depends  upon  whether,  where  one  prepares  what  is  known  as 
a  proprietary  or  patent  medicine,  and  puts  it  upon  the  market  and 
recommends  it  to  the  world  as  useful  for  the  cure  of  certain  diseases, 
the  bottle  containing  it  having  therewith  a  prescription  made  by  the 
proprietor  of  the  medicine,  in  which  he  states  that  it  is  to  be  taken 
in  certain  quantities,  and  such  medicine,  accompanied  with  this  pre- 
scription, is  sold  by  the  proprietor  to  a  dru^ist  for  the  purpose  of 
being  resold  to  persons  who  might  wish  to  use  it,  and  the  druggist  sells 
the  same  to  a  person  who  uses  it  in  the  quantity  thus  prescribed,  and 
it  being  shown  that  the  same  contains  a  certain  article  known  as  the 
iodide  of  potash  in  such  quantity  as  proves  harmful  to  the  person 
thus  using,  the  proprietor  is  liable.  The  plaintiff  in  error  insists  that 
there  is  no  liability  on  the  part  of  the  proprietor,  (1)  because  it  was 
not  sold  by  the  proprietor  to  the  person  injured,  but  by  a  druggist 
who  had  purchased  the  same  from  the  proprietor;  and  several  cases 
are  cited  to  sustain  this  position;  (2)  because  the  drug  thus  sold  was 
not  imminently  hurtful  or  poisonous. 

L  We  are  not  aware  of  any  decision  of  this  Court  upon  this  ques- 
tion, indeed  there  is  none;  and  we  have  searched  carefully  not  only 
the  authorities  cited  by  counsel  in  this  case,  but  others,  and  we  find 
no  question  like  the  one  which  arises  in  this  record  determined  by 
any  Court.  In  the  case  of  Thomas  v.  Winchester,  6  N.  Y.  (2  Seld.) 
397,  57  Am.  Dec.  455,  1  Thompson,  Neg.  224,  referred  to  by  coun- 
sel in  this  case,  the  question  decided  was,  that  a  dealer  in  drugs  and 
medicines  who  carelessly  labels  a  deadly  poison  as  a  harmless  medi- 
cine, and  sends  it  so  labelled  into  market,  is  liable  to  all  persons  who, 
without  fault  on  their  part,  are  injured  by  using  it  as  such  medicine 
in  consequence  of  the  false  label.    This  comes  nearer  the  present  case 

*  The  authorities  on  all  sides  of  the  question  raised  in  this  cause  are  collected 
and  discussed  in  the  cases  that  follow.  See  also  Pollock,  Torts,  6  ed.,  49d-497; 
Piggott.  Torts,  231-232;  1  Jageard.  Torts,  904-909;  Clerk  &  Lindsell,  Torts,  6  ed., 
511-522:  Salmond,  Torts,  4  edf.,  415-424;  Bohlen,  Affirmative  Obligations  in  the 
Law  of  Torts,  44  Am.  Law  Reg.  341. 

*  The  statement  of  facts  by  the  reporter  is  omitted.     . 


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234  BLOOD  BALM  COMPANY  V.  COOPER  [CHAP.  II. 

than  any  we  have  been  able  to  find,  and  it  is  relied  upon  by  both 
parties  as  an  authority;  and  in  the  notes  thereto  by  Mr.  Freeman  in 
the  American  Decisions,  the  cases  relied  upon  by  counsel  in  this  case 
are  embraced  and  referred  to,  and  to  some  extent  considered.  It  is 
not  denied  by  counsel  in  this  case  that  the  doctrine  of  the  case  cited 
(Thomas  v.  Winchester)  is  sound  and  correct  law,  but  the  present 
case  differs  from  that  case,  and  mainly  in  this:  there  the  drug  sold 
was  a  deadly  poison,  and  the  wrong  consisted  in  putting  a  label  upon 
the  same  which  indicated  that  it  was  a  harmless  medicine;  whereas 
in  this  case  the  medicine  sold  was  not  a  deadly  poison,  and  no  label 
was  put  upon  it  which  was  calculated  to  deceive  any  one  in  this  re- 
spect. But  accompanying  this  medicine  was  a  prescription  of  the 
proprietor  stating  the  quantity  to  be  taken,  and  the  evidence  tended  to 
show  that  the  quantity  thus  prescribed  contained  iodide  of  potash  to 
such  an  extent  as,  when  taken  by  the  plaintiff,  produced  the  injury 
and  damage  complained  of.  The  liability  of  the  plaintiff  in  error  to 
the  person  injured  arises,  not  by  contract,  but  for  a  wrong  committed 
by  the  proprietor  in  the  prescription  and  direction  as  to  the  dose  that 
should  be  taken. 

We  can  see  no  difference  whether  the  medicine  was  directly  sold  to 
the  defendant  in  error  by  the  proprietor,  or  by  an  intermediate  party 
to  whom  the  proprietors  had  sold  it  in  the  first  instance  for  the  pur- 
pose of  being  sold  again.  It  was  put  upon  the  market  by  the  pro- 
prietor, not  alone  for  the  use  of  dru^ists  to  whom  they  might  sell 
it,  but  to  be  used  by  the  public  in  general  who  might  need  the  same 
for  the  cure  of  certain  diseases  for  which  the  proprietor  set  forth  in 
his  label  the  same  was  adapted.  This  was  the  same  thing  as  if  the 
proprietor  himself  had  sold  this  medicine  to  the  defendant  in  error, 
with  his  instructions  and  directions  as  to  how  the  same  should  be 
taken.  In  all  the  cases  cited  by  the  plaintiff  in  error  there  is  no  case 
in  which  the  proprietor  prescribed  the  doses  and  quantities  to  be  taken 
of  the  medicine  sold  by  him.  If  this  medicine  contained  the  iodide 
of  potassium  in  sufficient  quantity  to  produce  the  injurious  conse- 
quences complained  of  to  the  defendant  in  error,  and  if  the  same  was 
administered  to  him,  either  by  himself  or  any  other  person,  as  pre- 
scribed in  the  label  accompanying  the  medicine,  he  could,  in  our  judg- 
ment, recover  for  any  injury  he  may  have  sustained  on  account  of  the 
poisonous  effect  thereof.  It  was  a  wrong  on  the  part  of  the  proprietor 
to  extend  to  the  public  generally  an  invitation  to  take  the  medicine  in 
quantities  sufficient  to  injure  and  damage  persons  who  might  take  it. 

A  medicine  which  is  known  to  the  public  as  being  dangerous  and 
poisonous  if  taken  in  large  quantities,  may  be  sold  by  the  proprietor  to 
druggists  and  others,  and  if  any  person,  without  more,  should  pur- 
chase and  take  the  same  so  as  to  cause  injury  to  himself,  the  pro- 
prietor would  not  be  liable.  But  if  the  contents  of  a  medicine  are 
concealed  from  the  public  generally,  and  the  medicine  is  prepared  by 


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SECT.  Vn.]  HUSET  V.  CASE  THRESHING  MACHINE  CO.  235 

one  who  know  its  contents,  and  he  sells  the  same,  recommending  it 
for  certain  diseases  and  prescribing  the  mode  in  which  it  shall  be 
taken,  and  injury  is  thereby  sustained  by  the  person  taking  the  same, 
the  proprietor  would  be  liable  for  the  damage  thus  sustained.  These 
proprietary  or  patent  medicines  are  secret,  or  intended  by  the  pro- 
prietors to  be  secret,  as  to  their  contents.  They  expect  to  derive  a 
profit  from  such  secrecy.  They  are  therefore  liable  for  all  injuries 
sustained  by  any  one  who  takes  their  medicine  in  such  quantities  as 
may  be  prescribed  by  them.  There  is  no  way  for  a  person  who  uses 
the  medicine  to  ascertain  what  its  contents  are,  ordinarily,  and  in  this 
case  the  contents  were  only  ascertained  after  an  analysis  made  by  a 
chemist,  —  which  would  be  very  inconvenient  and  expensive  to  the 
public;  nor  would  it  be  the  duty  of  a  person  using  the  medicine  to 
ascertain  what  poisonous  drugs  it  may  contain.  He  has  a  right  to 
rely  upon  the  statement  and  reconmiendation  of  the  proprietor, 
printed  and  published  to  the  world;  and  if  thus  relying,  he  takes  the 
medicine  and  is  injured  on  account  of  some  concealed  drug  of  which 
he  is  imaware,  the  proprietor  is  not  free  from  fault,  and  is  liable  for  the 
injury  thereby  sustained.  It  appears  from  the  analysis  made  by 
the  chemist  in  this  case  that  this  medicine  contained  25  grains  of  the 
iodide  of  potash  to  two  tablespoonfuls  of  the  medicine.  The  testi- 
mony of  the  plaintiff,  by  witnesses  learned  in  the  profession  of  medi- 
cine, was  that  iodide  of  potash  in  this  quantity  would  produce  the 
effects  upon  a  person  using  it  shown  by  the  condition  of  the  defendant 
in  error.  The  prescription  accompanying  the  bottle  directed  the 
taking  of  one  to  two  tablespoonfuls  of  the  medicine,  and  this  was  done 
by  the  defendant  in  error,  and  he  was  thereby  greatly  injured  and 
damaged. 

This  is  not  like  the  case  of  a  dangerous  machine  or  a  gun  sold  to  a 
person  and  by  him  given  or  sold  to  another,  as  in  some  of  the  cases 
referred  to.  Mr.  Freeman,  in  his  notes  to  the  case  above  referred  to 
(Thomas  v,  Winchester),  alludes  to  all  those  cases;  and  Mr.  Thomp- 
son, in  his  work  on  Negligence,  refers  to  the  same  cases,  and  they  are 
there  fully  discussed.  Judgment  affirmed. 

[Remainder  of  opinion  omitted.] 


HUSET  V.  J.  I.  CASE  THRESHING  MACHINE  CO. 

Circuit  Coubt  op  Appeals,  Eighth  Cracurr,  February  26, 1903. 
Reported  in  120  Federal  Reporter,  865. 

Sanborn,  Circuit  Judge:  ^ 

Is  a  manufacturer  or  vendor  of  an  article  or  machine  which  he 
knows,  when  he  sells  it,  to  be  imminently  dangerous,  by  reason  of  a 
concealed  defect  therein,  to  the  life  and  limbs  of  any  one  who  shall  use 

^  The  statement  of  facts  is  omitted. 


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236  HUSET  V.  CASE  'HaRESHING  MACHINE  CO.      [CHAP.  II. 

it  for  the  purpose  for  which  it  was  made  and  intended,  liable  to  a 
stranger  to  the  contract  of  sale  for  an  injury  which  he  sustains  from 
the  concealed  defect  while  he  is  lawfully  applying  the  article  or 
machine  to  its  intended  use  ? 

The  argument  of  this  question  has  traversed  the  whole  field  in  which 
the  liability  of  contractors,  manufacturers,  and  vendors  to  strangers 
to  their  contracts  for  negligence  in  the  construction  or  sale  of  their 
articles  has  been  contested.  The  decisions  which  have  been  cited  Are 
not  entirely  harmom'ous,  and  it  is  impossible  to  reconcile  all  of  them 
with  any  established  rule  of  law.  And  yet  the  imderlying  principle 
of  the  law  of  negligence,  that  it  is  the  duty  of  every  one  to  so  act  him- 
self  and  to  so  use  his  property  as  to  do  no  unnecessary  damage  to  his 
neighbors,  leads  us  fairly  through  the  maze.  With  this  fundamental 
principle  in  mind,  if  we  contemplate  the  familiar  rules  that  every  one 
is  liable  for  the  natural  and  probable  effects  of  his  acts;  that  negli- 
gence is  a  breach  of  a  duty;  that  an  injury  that  is  the  natural  and 
probable  consequence  of  an  act  of  negligence  is  actionable,  while  one 
that  could  not  have  been  foreseen  or  reasonably  anticipated  as  the 
probable  effect  of  such  an  act  is  not  actionable,  because  the  act  of 
negligence  in  such  a  case  is  the  remote,  and  not  the  proximate,  cause 
of  the  injiuy;  and  that,  for  the  same  reason,  an  injiuy  is  not  action- 
able which  would  not  have  resulted  from  an  act  of  negligence  except 
from  the  interposition  of  an  independent  cause  (Chicago,  St.  Paul, 
Minneapolis  &  Omaha  R.  Co.  v.  Elliott,  55  Fed.  949,  5  C.  C.  A.  347, 
20  L.  R.  A.  582)  —  nearly  all  the  decisions  upon  this  subject  range 
themselves  along  symmetrical  lines,  and  establish  rational  rules  of  the 
law  of  negligence  consistent  with  the  basic  principles  upon  which  it 
refifts. 

Actions  for  negligence  are  for  breaches  of  duty.  Actions  on  con- 
tracts are  for  breaches  of  agreements.  Hence  the  limits  of  liability 
for  negligence  are  not  the  limits  of  liability  for  breaches  of  contracts, 
and  actions  for  negligence  often  accrue  where  actions  upon  contracts 
do  not  arise,  and  vice  versa.  It  is  a  rational  and  fair  deduction  from 
the  rules  to  which  brief  reference  has  been  made  that  one  who  makes 
or  sells  a  machine,  a  building,  a  tool,  or  an  article  of  merchandise 
designed  and  fitted  for  a  specific  use  is  liable  to  the  person  who,  in 
the  natural  course  of  events,  uses  it  for  the  purpose  for  which  it  was 
made  or  sold,  for  an  injury  which  is  the  natural  and  probable  con- 
sequence of  sale.  But  when  a  contractor  builds  a  house  or  a  bridge,  or 
a  manufacturer  constructs  a  car  or  a  carriage,  for  the  owner  thereof 
under  a  special  contract  with  him,  an  injury  to  any  other  person  than 
the  owner  for  whom  the  article  is  built  and  to  whom  it  is  delivered 
cannot  ordinarily  be  foreseen  or  reasonably  anticipated  as  the  probable 
result  of  the  negligence  in  its  construction.  So,  when  a  manufacturer 
sells  articles  to  the  wholesale  or  retail  dealers,  or  to  those  who  are  to 
use  them,  injury  to  third  persons  is  not  generally  the  natural  or  prob- 


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SECT.  Vn.]  HUSET  V.   CASE  THRESHING  MACHINE  CO.      237 

able  effect  of  negligence  in  their  manufacture;  because  (1)  such  a 
result  cannot  ordinarily  be  reasonably  anticipated,  and  because  (2) 
an  independent  cause  —  the  responsible  human  agency  of  the  pur- 
chaser—  without  which  the  injury  to  the  third  person  would  not 
occur,  intervenes,  and,  as  Wharton  sajrs,  "  insulat^  "  the  negligence 
of  the  manufacturer  from  the  injury  to  the  third  person.  Wharton 
on  Law  of  N^igence  (2d  ed.)  §  134.  For  the  reason  that  in  the  cases 
of  the  character  which  have  been  mentioned  the  natural  and  t)robab!e 
effect  of  the  negligence  of  the  contractor  or  manufacturer  will  gen- 
erally be  limited  to  the  party  for  whom  the  article  is  constructed,  or 
to  whom  it  is  sold,  and,  perhaps  more  than  all  this,  for  the  reason  that 
a  wise  and  conservative  public  policy  has  impressed  the  courts  with 
the  view  that  there  must  be  a  fixed  and  definite  limitation  to  the  lia- 
bility of  manufacturers  and  vendors  for  negligence  in  the  construction 
and  sale  of  complicated  machines  and  structures  which  are  to  be 
operated  or  used  by  the  intelligent  and  the  ignorant,  the  skilful  and 
and  the  incompetent,  the  watchful  and  the  careless,  parties  that  can- 
not be  known  to  the  manufacturers  or  vendors,  and  who  use  the 
articles  all  over  the  coimtry  hundreds  of  miles  distant  from  the  place 
of  their  manufacture  or  original  sale,  a  general  rule  has  been  adopted 
and  has  become  established  by  repeated  decisions  of  the  courts  of 
England  and  of  this  country  that  in  these  cases  the  liability  of  the 
contractor  or  manufacturer  for  negligence  in  the  construction  or  sale 
of  the  articles  which  he  makes  or  vends  is  limited  to  the  persons  to 
whom  he  is  liable  under  his  contracts  of  construction  or  sale.  The 
limits  of  the  liability  for  negligence  and  for  breaches  of  contract  in 
cases  of  this  character  are  held  to  be  identical.  The  general  rule  is 
that  a  contractor,  manufacturer,  or  vendor  is  not  liable  to  third  par- 
ties who  have  no  contractual  relations  with  him  for  negligence  in  the 
construction,  manufacture,  or  sale  of  the  articles  he  handles.  Winter- 
bottom  V.  Wright,  10  M.  &  W.  109;  Longmeid  v.  HoUiday,  6  Exch. 
764,  765;  Blakemore  v.  Ry.  Co.,  8  El.  &  Bl.  1035;  Collis  v.  Selden, 
L.  R.  3  C.  P.  495,  497;  Bank  v.  Ward,  100  U.  S.  195,  204,  25  L.  Ed. 
621;  Bragdon  v.  Perkms-Campbell  Co.,  87  Fed.  109,  30  C.  C.  A. 
567;  Goodlander  v.  Standard  Oil  Co.,  63  Fed.  400,  406,  11  C.  C.  A. 
253, 259, 27  L.  R.  A.  583;  Loop  v,  Litchfield,  42  N.  Y.  351, 359, 1  Am. 
Rep.  513;  Losee  v.  Clute,  51  N.  Y.  494, 10  Am.  Rep.  623;  Curtain  v, 
Somerset,  140  Pa.  70,  21  Atl.  244,  12  L.  R.  A.  322,  23  Am.  St.  Rep. 
220;  Heizer  v,  Kingsland  &  Douglass  Mfg.  Co.,  110  Mo.  605,  615, 617, 
19  S.  W.  630,  15  L.  R.  A.  821,  33  Am.  St.  Rep.  481;  Daugherty  v. 
Herzog,  145  Ind.  255,  44  N.  E.  457,  32  L.  R.  A.  837,  57  Am.  St.  Rep. 
204;  Burkev.De  Castro,  11  Hun,  354;  Swan  r.  Jackson,  55  Hun,  194, 
7  N.  Y.  Supp.  821;  Barrett  v.  Mfg.  Co.,  31  N.  Y.  Super.  Ct.  545; 
Carter  v.  Harden,  78  Me.  528,  7  Atl.  392;  McCaffrey  v.  Mfg.  Co., 
(R.  I.)  50  Atl.  651,  55  L.  R.  A.  822;  Marvin  Safe  Co.  v.  Ward,  46 
N.  J.  Law,  19;  Burdick  v.  Cheadle,  26  Ohio  St.  393,  20  Am.  Rep.  767; 


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238  HUSET  V.  CASE  THRESHING  MACHINE  CO.      [CHAP.  U. 

Davidson  v.  Nichols,  11  Allen,  514;  J.  I.  Case  Plow  Works  v.  Niles  & 
Scott  Co.,  (Wis.)  63  N.  W.  1013. 

In  these  cases  third  parties,  without  any  fault  on  their  part,  wfere 
injured  by  the  negligence  of  the  manufacturer,  vendor,  or  furnisher  of 
the  following  articles,  while  the  parties  thus  injured  were  innocently 
using  them  for  the  purposes  for  which  they  were  made  or  furnished, 
and  the  courts  held  that  there  could  be  no  recovery,  because  the 
makers,  vendors,  or  furnishers  owed  no  duty  to  strangers  to  their 
contracts  of  construction,  sale,  or  fiunishing.  A  stagecoach.  Winter- 
bottom  V.  Wright,  10  M.  &  W.  109;  a  leaky  lamp,  Longmeid  v.  HoUi- 
day,  6  Exch.  764,  765;  a  defective  chain  furnished  one  to  lead  stone, 
Blakemore  v,  Ry  Co.,  8  El.  &  Bl.  1035;  an  improperly  hung  chan- 
delier, Collis  V.  Selden,  L.  R.  3  C.  P.  495,  497;  an  attorney's  certifi- 
cate of  title.  Bank  v.  Ward,  100  U.  S.  195,  204,  25  L.  Ed.  621 ;  a  defec- 
tive valve  in  an  oil  car,  Goodlander  v.  Standard  Oil  Co.,  63  Fed.  401, 
406, 11  C.  C.  A.  253,  259, 27  L.  R.  A.  583;  a  porch  on  a  hotel.  Curtain 
V.  Somerset,  140  Pa.  70,  21  Atl.  244, 12  L.  R.  A.  322,  23  Am.  St.  Rep. 
220;  a'  defective  side  saddle,  Bragdon  v.  Perkins-Campbell  Co.,  87 
Fed.  109,  30  C.  C.  A.  567;  a  defective  rim  in  a  balance  wheel.  Loop  v. 
Litchfield,  42  N.  Y.  351,  359,  1  Am.  Rep.  513;  a  defective  boiler, 
Losee  v,  Clute,  51  N.  Y.  494,  10  Am.  Rep.  623;  a  defective  cylinder 
in  a  threshing  machine,  Heizer  v,  Kingsland  &  Douglass  Mfg.  Co., 
110  Mo.  605,  615,  617, 19  S.  W.  630, 15  L.  R.  A.  821,  33  Am.  St.  Rep. 
481 ;  a  defective  wall  which  fell  on  a  pedestrian,  Daugherty  v.  Herzog, 
145  Ind.  255,  44  N.  E.  457,  32  L.  R.  A.  837,  57  Am.  St.  Rep.  204;  a 
defective  rope  on  a  derrick,  Burke  v.  Refining  Co.,  11  Him,  354;  a 
defective  shelf  for  a  workman  to  stand  upon  in  placing  ice  in  a  box, 
Swan  V,  Jackson,  55  Hun,  194, 7  N.  Y.  Supp.  821 ;  a  defective  hoisting 
rope  of  an  elevator,  Barrett  v.  Mfg.  Co.,  31  N.  Y.  Super.  Ct.  545;  a 
runaway  horse.  Carter  v.  Harden,  78  Me.  528,  7  Atl.  392;  a  defective 
hook  holding  a  heavy  weight  in  a  drop  press,  McCaffrey  v,  Mfg.  Co., 
(R.  I.)  50  Atl.  651,  55  L.  R.  A.  822;  a  defective  bridge,  Marvm  Safe 
Co.  V.  Ward,  46  N.  J.  Law,  19;  shelves  in  a  dry  goods  store,  whose  fall 
injured  a  customer,  Burdick  v.  Cheadle,  26  Ohio  St.  393,  20  Am.  Rep. 
767;  a  staging  erected  by  a  contractor  for  the  use  of  his  employees, 
McGuire  v,  McGee,  (Pa.)  13  Atl.  551;  defective  wheels,  J.  I.  Case 
Plow  Works  V,  Niles  &  Scott  Co.,  (Wis.)  63  N.  W.  1013. 

In  the  leading  case  of  Winterbottom  v.  Wright  this  rule  is  placed 
upon  the  ground  of  public  policy,  upon  the  ground  that  there  would 
be  no  end  of  litigation  if  contractors  and  manufacturers  were  to  be 
held  liable  to  third  persons  for  every  act  of  negligence  in  the  construc- 
tion of  the  articles  or  machines  they  make  after  the  parties  to  whom 
they  have  sold  them  have  received  and  accepted  them.  In  that  case 
the  defendant  had  made  a  contract  with  the  Postmaster-General  to 
provide  and  keep  in  repair  the  stage-coach  used  to  convey  the  mail 
from  Hartford  to  Holyhead.    The  coach  broke  down,  overturned. 


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SECT.  Vn.]  HUSET  V.   CASE  THRESHING  MACHINE  CO.       239 

and  injured  the  driver,  who  sued  the  contractor  for  the  injury  re- 
sulting from  his  negligence.    Lord  Abinger,  C.  B.,  said: 

"  There  is  no  privity  of  contract  between  these  parties;  and,  if 
the  plaintiff  can  sue,  every  passenger,  or  even  any  person  passing 
along  the  road,  who  was  injured  by  the  upsetting  of  the  coach,  might 
bring  a  similar  action.  Unless  we  confine  the  operation  of  such  con- 
tracts as  this  to  the  parties  who  entered  into  them,  the  most  absurd 
and  outrageous  consequences,  to  which  I  can  see  no  limit,  would 
ensue." 

Baron  Alderson  said: 

"  I  am  of  the  same  opinion.  The  contract  in  this  case  was  made 
with  the  Postmaster-General  alone;  and  the  case  is  just  the  same  as  if 
he  had  come  to  the  defendant  and  ordered  a  carriage,  and  handed  it  at 
once  over  to  Atkinson.  If  we  were  to  hold  that  the  plaintiff  could 
sue  in  such  a  case,  there  is  no  point  at  which  such  actions  would  stop. 
The  only  safe  rule  is  to  confine  the  right  to  recover  to  those  who  enter 
into  the  contract.  If  we  go  one  step  beyond  that,  there  is  no  reason 
why  we  should  not  go  fifty." 

The  views  expressed  by  the  judges  in  this  case  have  prevailed  in 
England  and  in  the  United  States,  with  the  exception  of  two  decisions 
which  are  in  conflict  with  the  leading  case  and  with  all  the  decisions 
to  which  reference  has  been  made.  Those  cases  are  Devlin  v.  Smith, 
89  N.  Y.  470,  42  Am.  Rep.  311,  in  which  Smith,  a  painter,  employed 
Stevenson,  a  contractor,  to  build  a  scaffold  90  feet  in  height,  for  the 
express  purpose  of  enabling  the  painter's  workmen  to  stand  upon  it 
to  paint  the  interior  of  the  dome  of  a  building,  and  the  Court  of 
Appeals  of  New  York  held  that  Stevenson  was  liable  to  a  workman  of 
Smith,  the  painter,  who  was  injured  by  a  faU,  caused  by  the  negli- 
gence of  Stevenson  in  the  construction  of  the  scaffold  upon  which 
he  was  working;  and  Schubert  v,  J.  R.  Clark  Co.,  49  Minn.  331,  51 
N.  W.  1103, 15  L.  R.  A.  818,  32  Am.  St.  Rep.  559,  in  which  a  painter 
purchased  of  a  manufacturer  a  stepladder,  and  one  of  the  painter's 
employees,  who  was  injured  by  the  breaking  of  a  step  caused  by  the 
ne^igence  of  the  manufactiurer,  was  permitted  to  recover  of  the  latter 
for  the  injuries  he  had  sustained.  The  decision  in  Devlin  v.  Smith 
may,  perhaps,  be  sustained  on  the  ground  that  the  workmen  of  Smith 
were  the  real  parties  in  interest  in  the  contract,  since  Stevenson  was 
employed  and  expressly  agreed  to  construct  the  scaffold  for  their  use. 
But  the  case  of  Schubert  v.  J.  R.  Clark  Co.  is  in  direct  conflict  with 
the  side  saddle  case,  Bragdon  v.  Perkins-Campbell  Co.,  87  Fed.  109, 
30  C.  C.  A.  567;  the  porch  case,  Curtain  v.  Somerset,  140  Pa.  70,  21 
Atl.  244, 12  L.  R.  A.  322,  23  Am.  St.  Rep.  220;  the  defective  cylinder 
case,  Heizerv.  Kingsland  &  Douglass  Mfg.  Co.,  110  Mo.  617, 19  S.  W. 
630,  15  L.  R.  A.  821,  33  Am.  St.  Rep.  481 ;  the  defective  hook  case, 
McCaffrey  v.  Mfg.  Co.,  (R.  I.)  50  Atl.  651,  55  L.  R.  A.  822;  and  with 
the  general  rule  upon  which  all  these  cases  stand. 


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240  HUSET  V.  CASE  THRESHING  MACHINE  CO.      [CHAP.  H* 

It  is,  perhaps,  the  more  remarkable  that  the  omrent  of  decisions 
throughout  all  the  courts  of  England  and  the  United  States  should  be 
so  uniform  and  conclusive  in  support  of  this  rule,  and  that  there 
should,  in  the  multitude  of  opinions,  be  but  one  or  two  in  conflict 
with  it,  than  it  is  that  such  sporadic  cases  should  be  found.  They  are 
insufficient  in  themselves,  or  in  the  reasoning  they  contain,  to  over- 
throw or  shake  the  established  rule  which  prevails  throughout  the 
English-speaking  nations. 

But  while  this  general  rule  is  both  established  and  settled,  there 
are,  as  is  usually  the  case,  exceptions  to  it  as  well  defined  and  settled 
as  the  rule  itself.    There  are  three  exceptions  to  this  rule. 

The  first  is  that  an  act  of  negligence  of  a  manufacturer  or  vendor 
which  is  imminently  dangerous  to  the  life  or  health  of  mankind,  and 
which  is  committed  in  the  preparation  or  sale  of  an  article  intended 
to  preserve,  destroy,  or  affect  human  life,  is  actionable  by  third  par- 
ties who  suffer  from  the  negligence.  Dixon  v.  Bell,  5  Maule  &  Sel. 
198;  Thomas  v.  Winchester,  6  N.  Y.  397,  57  Am.  Dec.  455;  Norton 
V.  Sewall,  106  Mass.  143,  8  Am.  Rep.  298;  EUdns  v.  McKean,  79  Pa. 
493,  502;  Bishop  v.  Weber,  139  Mass.  411, 1  N.  E.  154,  52  Am.  Rep. 
715;  Peters  v.  Johnson,  (W.  Va.)  41  S.  E.  190,  191,  57  L.  R.  A.  428. 
The  leading  case  upon  this  subject  is  Thomas  v.  Winchester,  6  N.  Y. 
397,  57  Am.  Dec.  455.  A  dealer  in  drugs  sold  to  a  druggist  a  jar  of 
belladonna,  a  deadly  poison,  and  labelled  it  "  Extract  of  Dandelion." 
The  druggist  filled  a  prescription  of  extract  of  dandelion,  prepared  by 
a  physician  for  his  patient.  The  patient  took  the  prescription  thus 
filled,  and  recovered  of  the  wholesale  dealer  for  the  injuries  she  sus- 
tained. In  Norton  v.  Sewall,  106  Mass.  143,  8  Am.  Rep.  298,  a  re- 
covery was  had  by  a  third  party  for  the  sale  of  laudanum  as  rhubarb; 
in  Bishop  v,  Weber,  for  the  furnishing  of  poisonous  food  for  wholesome 
food;  in  Peters  v.  Johnson,  for  the  sale  of  saltpetre  for  epsom  salts; 
and  in  Dixon  v.  Bell,  for  placing  a  loaded  gun  in  the  hands  of  a  child. 
In  all  these  cases  of  sale  the  natural  and  probable  result  of  the  act  of 
negligence  —  nay,  the  inevitable  result  of  it  —  was  not  an  injury  to 
the  party  to  whom  the  sales  were  made,  but  to  those  who,  after  the 
purchasers  had  disposed  of  the  articles,  should  consume  them.  Hence 
these  cases  stand  upon  two  well-established  principles  of  law:  (1) 
That  every  one  is  bound  to  avoid  acts  or  omissions  imminently  dan- 
gerous to  the  lives  of  others,  and  (2)  that  an  injury  which  is  the 
natural  and  probable  result  of  an  act  of  negligence  is  actionable.  It 
was  the  natural  and  probable  result  of  the  negligence  in  these  cases 
that  the  vendees  would  not  suffer,  but  that  those  who  subsequently 
purchased  the  deleterious  articles  would  sustain  the  injuries  resulting 
from  the  negligence  of  the  manufactiu^rs  or  dealers  who  furnished 
them. 

The  second  exception  is  that  an  o\^er's  act  of  negligence  which 
causes  injury  to  one  who  is  invited  by  him  to  use  his  defective  appli- 


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SECT.  VII.]      HUSET  V.  CASE  THRESHING  MACHINE  CO.  241 

ance  upon  the  owner's  premises  may  form  the  basis  of  an  action 
against  the  owner.  Coughtry  v.  Globe  Woolen  Co.,  66  N.  Y.  124, 
15  Am.  Rep.  387;  Bright  v.  Bamett  &  Record  Co.,  (Wis.)  60  N.  W. 
418,  420,  26  L.  R.  A.  524;  Heaven  v.  Pender,  L.  R.  11  Q.  B.  Div. 
503;  Roddy  v.  Railway  Co.,  104  Mo.  234,  241,  15  S.  W.  1112,  12 
L.  R.  A.  746,  24  Am.  St.  Rep.  333.  In  Coughtry  v.  Globe  Woolen  Co., 
56  N.  Y.  124,  15  Am.  Rep.  387,  the  owner  of  a  building  employed 
Osbom  &  Martin  to  construct  a  cornice,  and  agreed  with  them  to 
furnish  a  scaffold  upon  which  their  men  could  perform  the  work.  He 
furnished  the  scaffold  and  one  of  the  employees  of  the  contractors  was 
injured  by  the  negligence  of  the  owner  in  constructing  the  scaffold. 
The  court  held  that  the  act  of  the  owner  was  an  impUed  invitation  to 
the  employees  of  Osbom  &  Martin  to  use  the  scaffold  and  imposed 
upon  him  a  liabiUty  for  negligence  in  its  erection.  The  other  cases 
cited  to  this  exception  are  of  a  similar  character. 

The  third  exception  to  the  rule  is  that  one  who  sells  or  delivers  an 
article  which  he  knows  to  be  imminently  dangerous  to  life  or  limb  to 
another  without  notice  of  its  qualities  is  liable  to  any  person  who  suffers 
an  injury  therefrom  which  might  have  been  reasonably  anticipated, 
whether  there  were  any  contractual  relations  between  the  parties  or 
not.  Langridge  v.  Levy,  2  M.  &  W.  519,  4  M.  &  W.  337;  Wellington 
V.  Oil  Co.,  104  Mass.  64,  67;  Lewis  v.  Terry,  (Cal.)  43  Pac.  398.  In 
Langridge  v.  Levy,  2  M.  &  W.  519,  a  dealer  sold  a  gun  to  the  father 
for  the  use  of  the  son,  and  represented  that  it  was  a  safe  gun,  and  made 
by  one  Nock.  It  was  not  made  by  Nock,  waa  a  defective  gun,  and 
when  the  son  discharged  it,  it  exploded  and  injured  him.  The  son  was 
permitted  to  recover,  because  the  defendant  had  knowingly  sold  the 
gun  to  the  father  for  the  purpose  of  being  used  by  the  plaintiff  by 
loading  and  discharging  it,  and  had  knowingly  made  a  false  warranty 
that  this  might  be  safely  done,  and  the  plaintiff,  on  the  faith  of  that 
warranty,  and  believing  it  to  be  true,  had  used  the  gun,  and  sustained 
the  damages.    The  court  said  in  conclusion: 

"  We  therefore  think  that,  as  there  is  fraud,  and  damage,  the  result 
of  that  fraud,  not  from  an  act  remote  and  consequential,  but  one  con- 
templated by  the  defendant  at  the  time  as  one  of  its  results,  the  party 
guilty  of  the  fraud  is  responsible  to  the  party  injured." 

This  case  was  aflSrmed  in  4  M.  &  W.  337,  on  the  ground  that  the 
sale  of  the  gun  to  the  father  for  the  use  of  the  son  with  the  knowledge 
that  it  was  not  aa  represented  was  a  fraud,  which  entitled  the  son  to 
recover  the  damages  he  had  sustained. 

In  Wellington  v.  Oil  Co.,  the  defendants  knowingly  sold  to  one 
Chase,  a  retail  dealer,  to  be  sold  by  him  to  his  customers  as  oil, 
naphtha,  a  dangerous  and  explosive  liquid.  Chase  sold  the  naphtha 
as  oil,  the  plaintiff  used  it  in  a  lamp  for  illimiinating  purposes,  it 
ignited  and  exploded,  and  he  recovered  of  the  wholesale  dealer.  Judge 
Gray,  later  Mr.  Justice  Gray  of  the  Supreme  Court,  said: 


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242  HUSET  V.  CASE  THRESHING  MACHINE  CO.      [CHAP.  IL 

"  It  is  well  settled  that  a  man  who  delivers  an  article,  which  he 
knows  to  be  dangerous  or  noxious,  to  another  person,  without  notice  of 
its  nature  and  qualities,  is  liable  for  an  injury  which  may  reasonably 
be  contemplated  as  likely  to  result,  and  which  does  in  fact  result  there- 
from to  that  person  or  any  other  who  is  not'  himself  in  fault.  Thus  a 
person  who  delivers  a  carboy,  which  he  knows  to  contain  nitric  acid, 
to  a  carrier,  without  informing  him  of  the  natiu^  of  its  contents,  is 
liable  for  an  injury  occasioned  by  the  leaking  out  of  the  acid  upon 
another  carrier,  to  whom  it  is  delivered  by  the  first  in  the  ordinary 
course  of  business,  to  be  carried  to  its  destination.  Farrant  v.  Barnes, 
11  C.  B.  (n.  s.)  553.  So  a  chemist  who  sells  a  bottle  of  liquid,  made 
up  of  ingredients  known  only  to  himself,  representing  it  to  be  fit  to  be 
used  for  washing  the  hair,  and  knowing  that  it  is  to  be  used  by  the 
purchaser's  wife,  is  liable  for  an  injury  occasioned  to  her  by  using  it 
for  washing  her  hair.    George  v,  Skivington,  Law  Rep.  5  Ex.  1." 

In  Lewis  v,  Terry,  (Cal.)  43  Pac.  398,  a  dealer,  knowing  a  folding 
bed  to  be  defective  and  unsafe,  sold  it  to  a  Mr.  Apperson  without  in- 
forming him  of  the  fact.  His  wife  suffered  a  broken  arm  and  other 
severe  injuries  from  the  negligence  of  the  dealer  in  the  sale  of  the 
bed,  and  recovered  of  him  the  damages  she  sustained. 

The  Supreme  Court  of  Missouri,  in  Heizer  v.  Kingsland  &  Doug- 
lass Mfg.  Co.,  in  which  they  held  that  the  manufacturer  was  not  liable 
to  a  third  person  for  negligence  in  the  construction  of  the  cylinder  of 
a  threshing  machine,  which  burst  and  injured  him,  said: 

''  Had  the  defendant  sold  this  machine  to  Ellis,  knowing  that  the 
cylinder  was  defective,  and  for  that  reason  dangerous,  without  in- 
forming him  of  the  defect,  then  the  defendant  would  be  liable  even  to 
third  persons  not  th^nselves  in  fault.  Shearman  &  Redfield  on 
Negligence,  (4th  ed.)  §  117." 

Turning  now  to  the  case  in  hand,  it  is  no  longer  diflScult  to  dispose 
of  it.  The  allegations  of  the  complaint  are  that  the  defendant  pre- 
pared a  covering  for  the  cylinder  of  the  threshing  machine,  which 
was  customarily  and  necessarily  used  by  those  who  operated  it  to  walk 
upon,  and  which  was  so  incapable  of  sustaining  the  least  weight  that 
it  would  bend  and  collapse  whenever  any  one  stepped  upon  it;  that 
it  concealed  this  defective  and  dangerous  condition  of  the  threshing 
rig  so  that  it  could  not  be  readily  discovered  by  persons  engaged  in 
operating  or  working  upon  it;  that  it  knew  that  the  machine  was  in 
this  imminently  dangerous  condition  when  it  shipped  and  supplied  it 
to  the  employer  of  the  plaintiff;  and  that  the  plaintiff  has  sustained 
serious  injury  through  this  defect  in  its  construction.  The  case  falls 
fairly  within  the  third  exception.  It  portrays  a  negligence  immi- 
nently dangerous  to  the  lives  and  limbs  of  those  who  should  use  the 
machine,  a  machine  inmiinently  dangerous  to  the  lives  and  limbs  of 
all  who  should  undertake  to  operate  it,  a  concealment  of  this  danger- 
ous condition,  a  knowledge  of  the  defendant  when  it  was  shipped  and 


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SECT.  Vn.]  HEAVEN  V.  PENDER  243 

supplied  to  the  employer  of  the  plaintiff  that  the  rig  was  imminently 
dangerous  to  all  who  should  use  it  for  the  purpose  for  which  it  was 
made  and  sold,  and  consequent  damage  to  the  plaintiff.  It  falls  di- 
rectly within  the  rule  stated  by  Mr.  Justice  Gray  that  when  one  de- 
livers an  article,  which  he  knows  to  be  dangerous  to  another  person, 
without  notice  of  its  nature  and  qualities,  he  is  liable  for  an  injury 
which  may  be  reasonably  contemplated  as  likely  to  result,  and  which 
does  in  fact  result  therefrom,  to  that  person  or  to  any  other  who  is  not 
himself  in  fault.  The  natural,  probable,  and  inevitable  result  of  the 
negligence  portrayed  by  this  complaint  in  delivering  this  machine 
when  it  was  known  to  be  in  a  condition  so  imminently  dangerous  to 
the  lives  and  limbs  of  thosie  who  should  undertake  to  use  it  for  the  pur- 
pose for  which  it  was  constructed  was  the  death,  or  loss  of  one  or  more 
of  the  limbs,  of  some  of  the  operators.  It  is  perhaps  improbable  that 
the  defendant  was  possessed  of  the  knowledge  of  the  imminently 
datngerous  character  of  this  threshing  machine  when  it  delivered  it, 
and  that  upon  the  trial  of  the  case  it  will  be  found  to  fall  under  the 
general  rule  which  has  been  announced  in  an  earlier  part  of  this 
opinion.  But  upon  the  facts  alleged  in  this  complaint,  the  act  of 
deUvering  it  to  the  purchaser  with  a  knowledge  and  a  concealment  of 
its  dangerous  condition  was  so  flagrant  a  disregard  of  the  rule  that  one 
is  bound  to  avoid  any  act  imminently  dangerous  to  the  lives  and 
health  of  his  fellows  that  it  forms  the  basis  of  a  good  cause  of  action  in 
favor  of  any  one  who  sustained  injury  therefrom. 

The  judgment  of  the  Circuit  Court  must  be  reversed,  and  the  cause 
must  be  remanded  to  the  court  below  for  further  proceedings  not 
inconsistent  with  the  views  expressed  in  this  opinion. 


HEAVEN  V.  PENDER 

In  the  Court  of  Appeal,  July  30,  1883. 

Reported  in  11  Queen's  Bench  Division^  503. 

Action  to  recover  damages  for  injuries  alleged  to  have  been  sus- 
tained by  the  plaintiff  through  the  negligence  of  the  defendant.  The 
County  Court  judge  gave  judgment  for  the  plaintiff.  The  Queen's 
Bench  Division,  on  appeal,  ordered  judgment  for  defendant.  The 
plaintiff  appealed  to  the  Comrt  of  Appeal.* 

Brett,  M.  R.  In  this  case  the  plaintiff  was  a  workman  in  the  em- 
ploy of  Gray,  a  ship-painter.  Gray  entered  into  a  contract  with  a 
ship-owner  whose  ship  was  in  the  defendant's  dock  to  paint  the  out- 
side of  his  ship.  The  defendant,  the  dock-owner,  supplied,  under  a 
contract  with  the  ship-owner,  an  ordinary  stage  to  be  slung  in  the 
ordinary  way  outside  the  ship  for  the  purpose  of  painting  her.    It 

*  Arguments  omitted. 


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244  HEAVEN  V.  PENDER  [CHAP.  n. 

must  have  been  known  to  the  defendant's  servants,  if  they  had  con- 
sidered the  matter  at  all,  that  the  stage  would  be  put  to  immediate 
use,  that  it  would  not  be  used  by  the  ship-owner,  but  that  it  would  be 
used  by  such  a  person  as  the  plaintiff,  a  working  ship-painter.  The 
ropes  by  which  the  stage  was  slung,  and  which  were  supplied  as  a  part 
of  the  instnunent  by  the  defendant,  had  been  scorched  and  were  unfit 
for  use,  and  were  supplied  without  a  reasonably  careful  attention  to 
their  condition.  When  the  plaintiff  began  to  use  the  stage  the  ropes 
broke,  the  stage  fell,  and  the  plaintiff  was  injiu^d.  The  Divisional 
Court  held  that  the  plaintiff  could  not  recover  against  the  defendant. 
The  plaintiff  appealed.  The  action  is  in  form  and  substance  an  action 
for  negligence.  That  the  stage  was,  through  want  of  attention  of  the 
defendant's  servants,  supplied  in  a  state  unsafe  for  use  is  not  denied. 
But  want  of  attention  amounting  to  a  want  of  ordinary  care  is  not  a 
good  cause  of  action  although  injury  ensue  from  such  want,  unless 
the  person  charged  with  such  want  of  ordinary  care  had  a  duty  to  the 
person  complaining  to  use  ordinary  care  in  the  matter  called  in  ques- 
tion. Actionable  negligence  consists  in  the  neglect  of  the  use  of  ordi- 
nary care  or  skill  toward  a  person  to  whom  the  defendant  owes  the 
duty  of  observing  ordinary  care  and  skill,  by  which  neglect  the  plain- 
tiff, without  contributory  negligence  on  his  part,  has  suffered  injury 
to  his  person  or  property.  The  question  in  this  case  is  whether  the 
defendant  owed  such  a  duty  to  the  plaintiff. 

If  a  person  contracts  with  another  to  use  ordinary  care  or  skill  to- 
ward him  or  his  property,  the  obligation  need  not  be  considered  in 
the  light  of  a  duty;  it  is  an  obligation  of  contract.  It  is  undoubted, 
however,  that  there  may  be  the  obligation  of  such  a  duty  from  one 
person  to  another  although  there  is  no  contract  between  them  with 
regard  to  such  duty.  Two  drivers  meeting  have  no  contract  with  each 
other,  but  under  certain  circumstances  they  have  a  reciprocal  duty 
toward  each  other.  So  two  ships  navigating  the  sea.  So  a  railway 
company  which  has  contracted  with  one  person  to  carry  another  has 
no  contract  with  the  person  carried,  but  has  a  duty  toward  that  per- 
son. So  the  owner  or  occupier  of  a  house  or  land  who  permits  a  person 
or  persons  to  come  to  his  house  or  land  has  no  contract  with  such  per- 
son or  persons,  but  haa  a  duty  toward  him  or  them.  It  should  be  ob- 
served that  the  existence  of  a  contract  between  two  persons  does  not 
prevent  the  existence  of  the  suggested  duty  between  them  also  being 
raised  by  law  independently  of  the  contract,  by  the  facts  with  regard  to 
which  the  contract  is  made  and  to  which  it  applies  an  exactly  similar 
but  a  contract  duty.  We  have  not  in  this  case  to  consider  the  circum- 
stances in  which  an  implied  contract  may  arise  to  use  ordinary  care 
and  skill  to  avoid  danger  to  the  safety  of  person  or  property.  We  have 
not  in  this  case  to  consider  the  question  of  a  fraudulent  misrepresenta- 
tion, express  or  implied,  which  is  a  well-recognized  head  of  law.  The 
questions  which  we  have  to  solve  in  this  case  are:  What  is  the  proper 


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SECT.  VII.]  HEAVEN  V.  PENDER  245 

definition  of  the  relation  between  two  persons  other  than  the  relation 
established  by  contract,  or  fraud,  which  imposes  on  one  of  them  a 
duty  toward  the  other  to  observe,  with  regard  to  the  person  or  prop- 
erty of  such  other,  such  ordinary  care  or  skill  as  may  be  necessary  to 
prevent  injury  to  his  person  or  property;  and  whether  the  present 
case  falls  within  such  definition  ?  When  two  drivers  or  two  ships  are 
approaching  each  other,  such  a  relation  arises  between  them  when 
they  are  approaching  each  other  in  such  a  manner  that,  imless  they 
use  ordinary  care  and  skill  to  avoid  it,  there  will  be  danger  of  an 
injurious  collision  between  them.  This  relation  is  established  in  such 
circumstances  between  thetn,  not  only  if  it  be  proved  that  they 
actually  know  and  think  of  this  danger,  but  whether  such  proof  be 
made  or  not.  It  is  established,  as  it  seems  to  me,  because  any  one  of 
ordinary  sense  who  did  think  would  at  once  recognize  that  if  he  did 
not  use  ordinary  care  and  skill  imder  such  circiunstances  there  would 
be  such  danger.  And  every  one  ought,  by  the  universally  recognized 
rules  of  right  and  wrong,  to  think  so  much  with  regard  to  the  safety  of 
others  who  may  be  jeopardized  by  his  conduct;  and  if,  being  in  such 
circumstances,  he  does  not  think,  and  in  consequence  neglects,  or  if  he 
n^ects  to  use  ordinary  care  and  skill,  and  injury  ensue,  the  law, 
which  takes  cognizance  of  and  enforces  the  rules  of  right  and  wrong, 
will  force  him  to  give  an  indemnity  for  the  injury.  In  the  case  of  a 
railway  company  carrying  a  passenger  with  whom  it  has  not  entered 
into  the  contract  of  carriage,  the  law  implies  the  duty,  because  it 
must  be  obvious  that  unless  ordinary  care  and  skill  be  used  the  per- 
sonal safety  of  the  passenger  must  be  endangered.  With  regard  to 
the  condition  in  which  an  owner  or  occupier  leaves  his  house  or  prop- 
erty other  phraseology  has  been  used,  which  it  is  necessary  to  consider. 
If  a  man  opens  his  shop  or  warehouse  to  customers  it  is  said  that  he 
invites  them  to  enter,  and  that  this  invitation  raises  the  relation  be- 
tween them  which  imposes  on  the  inviter  the  duty  of  using  reasonable 
care  so  to  keep  his  house  or  warehouse  that  it  may  not  endanger  the 
person  or  property  of  the  person  invited.  This  is  in  a  sense  an  accu- 
rate phrase,  and  as  applied  to  the  circumstances  a  suflSciently  accurate 
phrase.  Yet  it  is  not  accurate  if  the  word  "  invitation  "  be  used  in 
its  ordinary  sense.  By  opening  a  shop  you  do  not  really  invite,  you 
do  not  ask  A.  B.  to  come  in  to  buy;  you  intimate  to  him  that  if  it 
pleases  him  to  come  in  he  will  find  things  which  you  are  willing  to 
sell.  So  in  the  case  of  shop,  warehouse,  road,  or  premises,  the  phrase 
has  been  used  that  if  you  permit  a  person  to  enter  them  you  impose 
on  yourself  a  duty  not  to  lay  a  trap  for  him.  This,  again,  is  in  a  sense 
a  true  statement  of  the  duty  arising  from  the  relation  constituted  by 
the  permission  to  enter.  It  is  not  a  statement  of  what  causes  the 
relation  which  raises  the  duty.  What  causes  the  relation  is  the  per- 
mission to  enter  and  the  entry.  But  it  is  not  a  strictly  accurate  state- 
ment of  the  duty.    To  lay  a  trap  means  in  ordinary  language  to  do 


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246  HEAVEN  V.   PENDER  [CHAP.  II. 

something  with  an  intention.    Yet  it  is  clear  that  the  duty  extends  to 
a  danger  the  result  of  negligence  without  intention.    And  with  regard 
to  both  these  phrases,  though  each  covers  the  circumstances  to  which 
it  is  particularly  applied,  yet  it  does  not  cover  the  other  set  of  cir- 
cumstances from  which  an  exactly  similar  legal  liability  is  inferred. 
It  follows,  as  it  seems  to  me,  that  there  must  be  some  larger  proposi- 
tion which  involves  and  covers  both  sets  of  circumstances.    The  logic 
of  inductive  reasoning  requires  that  where  two  major  propositions 
lead  to  exactly  similar  minor  premises  there  must  be  a  more  remote 
and  larger  premise  which  embraces  both  of  the  major  propositions. 
That,  in  the  present  consideration,  is,  as  it  seems  to  me,  the  same 
proposition  which  will  cover  the  similar  legal  liability  inferred  in  the 
cases  of  collision  and  carriage.    The  proposition  which  these  recog- 
nized cases  suggest,  and  which  is,  therefore,  to  be  deduced  from  them, 
is  that  whenever  one  person  is  by  circumstances  placed  in  such  a  posi- 
tion with  regard  to  another  that  every  one  of  ordinary  sense  who  did 
think  would  at  once  recognize  that  if  he  did  not  use  ordinary  care  and 
skill  in  his  own  conduct  with  regard  to  those  circumstances  he  would 
cause  danger  of  injury  to  the  person  or  property  of  the  other,  a  duty 
arises  to  use  ordinary  care  and  skill  to  avoid  such  danger.    Without 
displacing  the  other  propositions  to  which  allusion  has  been  made  as 
applicable  to  the  particular  circumstances  in  respect  of  which  they 
have  been  enunciated,  this  proposition  includes,  I  think,  all  the  recog- 
nized cases  of  liability.    It  is  the  only  proposition  which  covers  them 
all.    It  may,  therefore,  safely  be  aflSrmed  to  be  a  true  proposition, 
unless  some  obvious  case  can  be  stated  in  which  the  liability  must  be 
admitted  to  exist,  and  which  yet  is  not  within  this  proposition.   There 
is  no  such  case.   Let  us  apply  this  proposition  to  the  case  of  one  person 
supplying  goods  or  machinery  or  instruments  or  utensils,  or  the  like, 
for  the  purpose  of  their  being  used  by  another  person,  but  with  whom 
there  is  no  contract  as  to  the  supply.   The  proposition  will  stand  thus : 
whenever  one  person  supplies  goods,  or  machinery,  or  the  like,  for  the 
purpose  of  their  being  used  by  another  person  under  such  circum- 
stances that  every  one  of  ordinary  sense  would,  if  he  thought,  recog- 
nize at  once  that  unless  he  used  ordinary  care  andskill  with  regard  to 
the  condition  of  the  thing  supplied  or  the  mode  of  supplying  it,  there 
will  be  danger  of  injury  to  the  person  or  property  of  him  for  whose  use 
the  thing  is  supplied  and  who  is  to  use  it,  a  duty  arises  to  use  ordinary 
care  and  skill  as  to  the  condition  or  manner  of  supplying  such  thing. 
And  for  a  neglect  of  such  ordinary  care  or  skill  whereby  injury  hap- 
pens, a  legal  liability  arises  to  be  enforced  by  an  action  for  negligence. 
This  includes  the  case  of  goods,  etc.,  supplied  to  be  used  inmiediately 
by  a  particular  person  or  persons,  or  one  of  a  class  of  persons,  where  it 
would  be  obvious  to  the  person  suppljring,  if  he  thought  that  the  goods 
would  in  all  probability  be  used  at  once  by  such  persons  before  a  rea- 
sonable opportunity  for  discovering  any  defect  which  might  exist,  and 


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SECT.  VII.]  HEAVEN  V.  PENDER  247 

where  the  thing  supplied  would  be  of  such  a  nature  that  neglect  of 
ordinary  care  or  skill  as  to  its  condition  or  the  manner  of  supplying  it 
would  probably  cause  danger  to  the  person  or  property  of  the  person 
for  whose  use  it  was  supplied,  and  who  was  about  to  use  it.  It  would 
exclude  a  case  in  which  the  goods  are  supplied  under  circumstances  in 
which  it  would  be  a  chance  by  whom  they  would  be  used  or  whether 
they  would  be  used  or  not,  or  whether  they  would  be  used  before  there 
would  probably  be  means  of  observing  any  defect,  or  where  the  goods 
would  be  of  such  a  nature  that  a  want  of  care  or  skill  as  to  their  con- 
dition or  the  manner  of  supplying  them  would  not  probably  produce 
danger  of  injiuy  to  person  or  property.  The  cases  of  vendor  and 
purchaser  and  lender  and  hirer  under  contract  need  not  be  consid- 
ered, as  the  liability  arises  under  the  contract,  and  not  merely  as  a 
duty  imposed  by  law,  though  it  may  not  be  useless  to  observe  that 
it  seems  diflScult  to  import  the  impUed  obligation  into  the  contract 
except  in  cases  in  which  if  there  were  no  contract  between  the 
parties  the  law  would,  according  to  the  rule  above  stated,  imply  the 
duty. 

Examining  the  rule  which  has  been  above  enunciated  with  the  cases 
which  have  been  decided  with  regard  to  goods  supplied  for  the  purpose 
of  being  used  by  persons  with  whom  there  is  no  contract,  the  first 
case  to  be  considered  is  inevitably  Langridge  v.  Levy,  2  M.  &  W.  519; 
4  id.  337.  It  is  not  an  easy  case  to  act  upon.  It  is  not,  it  cannot  be, 
accurately  reported;  the  declaration  is  set  out;  the  evidence  is  as- 
simied  to  be  reported;  the  questions  left  to  the  jury  are  stated.  And 
then  it  is  said  tliat  a  motion  was  made  to  enter  a  nonsuit  in  pursuance 
of  leave  reserved  on  particular  grounds.  These  grounds  do  not  raise 
the  question  of  fraud  at  all,  but  only  the  question  of  remoteness.  And 
although  the  question  of  fraud  se^pis  in  a  sense  to  have  been  left  to 
the  jury,  yet  no  question  was,  according  to  the  report,  left  to  them 
as  to  whether  the  plaintiff  acted  on  the  faith  of  the  fraudulent  mis- 
representation, which  is,  nevertheless,  a  necessary  question  in  a  case 
of  fraudulent  misrepresentation.  The  report  of  the  argument  makes 
the  object  of  the  argument  depend  entirely  upon  an  assumed  motion 
to  arrest  the  judgment,  which  raises  always  a  discussion  depending 
entirely  on  the  form  of  the  declaration,  and  the  effect  on  it  of  a  ver- 
dict, in  respect  of  which  it  is  assumed  that  all  questions  were  left  to 
the  jury.  If  this  was  the  point  taken  the  report  of  the  evidence  and 
of  the  questions  left  to  the  jury  is  idle!  The  case  was  decided  on  the 
groimd  of  a  fraudulent  misrepresentation  as  stated  in  the  declaration. 
It  is  inferred  that  the  defendant  intended  the  representation  to  be 
communicated  to  the  son.  Why  he  should  have  such  an  intention  in 
fact  it  seems  diflScult  to  understand.  His  immediate  object  must 
have  been  to  induce  the  father  to  buy  and  pay  for  the  gun.  It  must 
have  been  wholly  indifferent  to  him  whether,  after  the  sale  and  pay- 
ment, the  gun  would  be  used  or  not  by  the  son.    I  cannot  hesitate  to 


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248  HEAVEN  V.   PENDER  [CHAP.  II. 

say  that,  in  my  opinion,  the  case  is  a  wholly  unsatisfactory  case  to  act 
on  as  an  authority.  But  taking  the  case  to  be  decided  on  the  groimd 
of  a  fraudulent  misrepresentation  made  hypothetically  to  the  son, 
and  acted  upon  by  him,  such  a  decision  upon  such  a  ground  in  no 
way  negatives  the  proposition  that  the  action  might  have  been  sup- 
ported on  the  ground  of  negligence  without  fraud.  It  seems  to  be  a 
case  which  is  within  the  proposition  enunciated  in  this  judgment,  and 
in  which  the  action  might  have  been  supported  without  proof  of  actual 
fraud.  And  this  seems  to  be  the  meaning  of  Cleasby,  B.,  in  the  ob- 
servations he  made  on  Langridge  v.  Levy,  supra,  in  the  case  of  George 
V.  Skivington,  L.  R.  5  Ex.  1,5.  In  that  case  the  proposition  laid  down 
in  that  judgment  is  clearly  adopted.  The  ground  of  the  decision  is 
that  the  article  was,  to  the  knowledge  of  the  defendant,  supplied  for 
the  use  of  the  wife  and  for  her  immediate  use.  And  certainly,  if  he 
or  any  one  in  his  position  had  thought  at  all,  it  must  have  been  obvious 
that  a  want  of  ordinary  care  or  skiU  in  preparing  the  prescription  sold 
would  endanger  the  personal  safety  of  the  wife. 

In  Corby  v.  Hill,  4  C.  B.  (n*  s.)  556,  it  is  stated  by  the  Lord  Chief 
Justice  that  an  allurement  was  held  out  to  the  plaintiff.  And  Willes, 
J.,  stated  that  the  defendant  had  no  right  to  set  a  trap  for  the  plaintiflf. 
But  in  the  form  of  declaration  suggested  by  Willes,  J.,  on  p.  567,  there 
is  no  mention  of  alliu^ment,  or  invitation  or  trap.  The  facts  suggested 
in  that  form  are,  "  that  the  plaintiff  had  license  to  go  on  the  road, 
that  he  was  in  consequence  accustomed  and  likely  to  pass  along  it, 
that  the  defendant  knew  of  that  custom  and  probability,  that  the 
defendant  negUgently  placed  slates  in  such  a  manner  as  to  be  likely 
to  prove  dangerous  to  persons  driving  along  the  road,  that  the  plaintiff 
drove  along  the  road,  being  by  reason  of  the  license  lawfully  on  the 
road,  and  that  he  was  injured  by  the  obstruction."  It  is  impossible 
to  state  a  case  more  exactly  within  the  proposition  laid  down  in  this 
judgment.  In  Smith  v.  London  &  St.  Katharine  Docks  Co.,  L.  R. 
3  C.  P.  326,  the  phrase  is  again  used  of  invitation  to  the  plaintiff  by 
the  defendants.  Again,  let  it  be  observed  that  there  is  no  objection 
to  the  phrase  as  applied  to  the  case.  But  the  real  value  of  the  phrase 
may  not  improperly  be  said  to  be  that  invitation  impkjrts  knowledge 
by  the  defendant  of  the  probable  use  by  the  plaintiff  of  the  article  sup- 
plied, and  therefore  carries  with  it  the  relation  between  the  parties 
which  establishes  the  duty.  In  Indermaur  v.  Dames,  L.  R.  1  C.  P.  274, 
L.  R.  2  C.  P.  311,  reliance  is  again  placed  upon  a  supposed  invitation 
of  the  plaintiff  by  the  defendant.  But,  again,  it  is  hardly  possible  to 
state  facts  which  bring  a  case  more  completely  within  the  definition  of 
the  present  judgment.  In  Winterbottom  v.  Wright,  10  M.  &  W.  109, 
it  was  held  that  there  was  no  duty  cast  upon  the  defendant  with 
regard  to  the  plaintiff.  The  case  was  decided  on  what  waa  equivalent 
to  a  general  demurrer  to  the  declaration.  And  the  declaration  does 
not  seem  to  show  that  the  defendant,  if  he  had  thought  about  it,  must 


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SECT.  VII.]  HEAVEN  V.  PENDER  249 

have  known,  or  ought  to  have  known,  that  the  coach  would  be  neces- 
sarily or  probably  driven  by  the  plaintiff,  or  by  any  class  of  which  he 
could  be  said  to  be  one,  or  that  it  would  be  so  driven  within  any  time 
which  would  make  it  probable  that  the  defect  would  not  be  observed. 
The  declaration  relied  too  much  on  contracts  entered  into  with  other 
persons  than  the  plaintiff.  The  facts  alleged  did  not  bring  the  case 
within  the  proposition  herein  enunciated.  It  was  an  attempt  to  estab- 
lish a  duty  toward  all  the  world.  The  case  was  decided  on  the  ground 
of  remoteness.  And  it  is  as  to  too  great  a  remotene&s  that  the  observa- 
tion of  Lord  Abinger  is  pointed,  when  he  sajrs  that  the  doctrine  of 
Langridge  v.  Levy,  supra,  is  not  to  be  extended.  In  Francis  v.  Cockrell, 
L.  R.  5  Q.  B.  501,  the  decision  is  put  by  some  of  the  judges  on  an  im- 
plied contract  between  the  plaintiBf  and  the  defendant.  But  Cleasby, 
B.  (p.  615),  puts  it  upon  the  duty  raised  by  the  knowledge  of  the  de- 
fendant that  the  stand  was  to  be  used  immediately  by  persons  of 
whom  the  plaintiff  was  one.  In  other  words,  he  acts  upon  the  rule 
above  laid  down.  In  Collis  v.  Selden,  L.  R.  3  C.  P.  495,  it  was  held 
that  the  declaration  disclosed  no  duty.  And  obviously,  the  declara- 
tion was  too  imcertain.  There  is  nothing  to  show  that  the  defendant 
knew  more  of  the  probability  of  the  plaintiff  rather  than  any  other 
of  the  public  being  near  the  chandelier.  There  is  nothing  to  show 
that  the  plaintiff  was  more  likely  to  be  in  the  public-house  than  any 
other  member  of  the  public.  There  is  nothing  to  show  how  soon 
after  the  hanging  of  the  chandelier  any  one  might  be  expected  or 
permitted  to  enter  the  room  in  which  it  was.  The  facts  stated  do  not 
bring  it  within  the  rule.  There  is  an  American  case:  Thomas  v. 
Winchester,  6  N.  Y.  397,  57  Am.  Dec.  455,  cited  in  Mr.  Horace 
Smith's  Treatise  on  the  Law  of  Negligence,  p.  88,  note  (t),  which 
goes  a  very  long  way.  I  doubt  whether  it  does  not  go  too  far.  In 
Longmeid  v.  Holliday,  6  Ex.  761,  a  lamp  was  sold  to  the  plaintiff  to 
be  used  by  the  wife.  The  jury  were  not  satisfied  that  the  defendant 
knew  of  the  defect  in  the  lamp.  If  he  did,  there  was  fraud;  if  he  did 
not,  there  seems  to  have  been  no  evidence  of  negligence.  If  there  was 
fraud,  the  case  was  more  than  within  the  rule.  If  there  was  no  fraud 
the  case  was  not  brought  by  other  circumstances  within  the  rule.  In 
Gautret  v.  Egerton,  L.  R.  2  C.  P.  374,  the  declaration  was  held  by 
Willes,  J.,  to  be  bad  on  demurrer,  because  it  did  not  show  that  the 
defendant  had  any  reason  to  suppose  that  persons  going  to  the  docks 
would  not  have  ample  means  of  seeing  the  holes  and  cuttings  relied 
on.  He  does  not  say  there  must  be  fraud  in  order  to  support  the  action. 
He  says  there  must  be  something  like  fraud.  He  sajrs:  "  Every  man 
is  bound  not  wilfully  to  deceive  others."  And  then,  in  the  alternative, 
he  sajrs:  "  or  to  do  any  act  which  may  place  them  in  danger."  There 
seems  to  be  no  case  in  conflict  with  the  rule  above  deduced  from  well 
admitted  cases.  I  am,  therefore,  of  opinion  that  it  is  a  good,  safe, 
and  just  rule. 


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250  HEAVEN  V.  PENDER  [CHAP.  U. 

I  cannot  conceive  that  if  the  facts  were  proved  which  would  make 
out  the  proposition  I  have  enunciated,  the  law  can  be  that  there  would 
be  no  liability.  Unless  that  be  true,  the  proposition  must  be  true. 
If  it  be  the  rule  the  present  case  is  clearly  within  it.  This  case  is  also, 
I  agree,  within  that  which  seems  to  me  to  be  a  minor  proposition, 
namely,  the  proposition  which  has  been  often  acted  upon,  that  there 
was  in  a  sense  an  invitation  of  the  plaintiff  by  the  defendant  to  use  the 
stage.  The  appeal  must,  in  my  opinion,  be  allowed,  and  judgment 
must  be  entered  for  the  plaintiff. 

Cotton,  L.  J.  Bowbn,  L.  J.,  concius  in  the  judgment  I  am  about 
to  read.  [The  opinion  holds  defendant  liable,  on  the  groimd  that  he 
must  be  considered  as  having  invited  the  workman  to  use  the  dock 
and  all  appliances  provided  by  the  dock-owner  as  incident  to  the  use 
of  the  dock;  and  that  he  was  imder  obligation  to  take  reasonable  care 
that  at  the  time  the  appliances  provided  for  immediate  use  in  the 
dock  were  furnished  by  him  they  were  in  a  fit  state  to  be  used.  The 
opinion  then  proceeds  as  follows:  — ] 

This  decides  this  appeal  in  favor  of  the  plaintiff,  and  I  am  unwilling 
to  concur  with  the  Master  of  the  Rolls  in  laying  down  unnecessarily 
the  larger  principle  which  he  entertains,  inasmuch  as  there  are  many 
cases  in  which  the  principle  was  impliedly  n^atived. 

Take,  for  instance,  the  case  of  Langridge  v.  Levy,  dupra,  to  which 
the  principle,  if  it  existed,  would  have  applied.  But  the  judges  who 
decided  that  case  based  their  judgment  on  the  fraudulent  representa- 
tion made  to  the  father  of  the  plaintiff  by  the  defendant.  In  other 
cases  where  the  decision  has  been  referred  to,  judges  have  treated 
fraud  as  the  ground  of  the  decision;  as  was  done  by  Coleridge,  J.,  in 
Blackmore  v,  Bristol  &  Exeter  Ry.  Co.,  8  E.  &  B.  1035;  and  in  Collis 
V,  Selden,  L.  R.  3  C.  P.  495,  Willes,  J.,  says  that  the  judgment  in 
Langridge  v.  Levy,  supra,  was  based  on  the  fraud  of  the  defendant. 
This  impliedly  negatives  the  existence  of  the  larger  general  principle 
which  is  relied  on,  and  the  decisions  in  Collis  v.  Selden,  supra,  and  in 
Longmeid  v.  HoUiday,  supra  (in  each  of  which  the  plaintiff  failed), 
are,  in  my  opinion,  at  variance  with  the  principle  contended  for.  The 
case  of  George  v,  Skivington,  supra,  and  especially  what  is  said  by 
Cleasby,  B.,  in  giving  judgment  in  that  case,  seems  to  support  the 
existence  of  the  general  principle.  But  it  is  not  in  terms  laid  down 
that  any  such  principle  exists,  and  the  case  was  decided  by  Cleasby, 
B.,  on  the  ground  that  the  negligence  of  the  defendant  which  was  his 
own  personal  negligence  was  equivalent,  for  the  purposes  of  that 
action,  to  fraud,  on  which  (as  he  said)  the  decision  in  Langridge  v. 
Levy,  supra,  was  based.^ 

In  declining  to  concur  in  laying  down  the  principle  enunciated  by 
the  Master  of  the  Rolls,  I  in  no  way  intimate  any  doubt  as  to  the 

*  See  an  elaborate  criticism  of  George  v.  Skivington,  L.  R.  5  Ex.  1,  m  Blacker  v. 
Lake,  106  Law  Times  Rep.  (n.  s.)  533,  637. 


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SECT.  Vn.]    MacPHEKSON  v.  BXJICK  MOTOR  COMPANY  251 

principle  that  any  one  who  leaves  a  dangerous  instrument;  as  a  gun, 
in  such  a  way  as  to  cause  danger,  or  who  without  due  warning  sup- 
plies to  others  for  use  an  instrument  or  thing  which  to  his  knowledge, 
from  its  construction  or  otherwise,  is  in  such  a  condition  as  to  cause 
danger,  not  necessarily  incident  to  the  use  of  such  an  instrument  or 
thing,  is  liable  for  injury  caused  to  others  by  reason  of  his  negligent 
act. 

For  the  reasons  stated  I  agree  that  the  plaintiff  is  entitled  to  judg- 
ment, though  I  do  not  entirely  concur  with  the  reasoning  of  the 
Master  of  the  Rolls.  Judgment  reversed. 


MacPHERSON  v.  BUICK  MOTOR  COMPANY 

Court  op  Appeals,  New  York,  March  14, 1916. 

Reported  in  217  New  York  Reports,  382. 

Cardozo,  J.  The  defendant  is  a  manufactiu*er  of  automobiles.  It 
sold  an  automobile  to  a  retail  dealer.  The  retail  dealer  resold  to  the 
plaintiff.  While  the  plaintiff  was  in  the  car  it  suddenly  collapsed. 
He  was  thrown  out  and  injured.  One  of  the  wheels  was  made  of  de- 
fective wood,  and  its  spokes  crumbled  into  fragments.  The  wheel 
was  not  made  by  the  defendant;  it  was  bought  from  another  manu- 
facturer. There  is  evidence,  however,  that  its  defects  could  have  been 
discovered  by  reasonable  inspection,  and  that  inspection  was  omitted. 
There  is  no  claim  that  the  defendant  knew  of  the  defect  and  wilfully 
concealed  it.  The  case,  in  other  words,  is  not  brought  within  the  rule 
of  Kuelling  v.  Lean  Mfg.  Co.,  183  N.  Y.  78,  75  N.  E.  1098,  2  L.  R.  A. 
(n.  s.)  303,  111  Am.  St.  Rep.  691,  5  Ann.  Cas.  124.  The  charge  is 
one,  not  of  fraud,  but  of  negUgence.  The  question  to  be  determined  is 
whether  the  defendaht  owed  a  duty  of  care  and  vigilance  to  any  one 
but  the  immediate  purchaser. 

The  foundations  of  this  branch  of  the  law,  at  least  in  this  state, 
were  laid  in  Thomas  v.  Winchester,  6  N.  Y.  397,  57  Am.  Dec.  455. 
A  poison  was  falsely  labelled.  The  sale  was  made  to  a  druggist,  who 
in  turn  sold  to  a  customer.  The  customer  recovered  damages  from 
the  seller  who  affixed  the  label.  "  The  defendant's  negligence,"  it  was 
said,  "put  himian  life  in  imminent  danger."  A  poison,  falsely 
labelled,  is  likely  to  injure  any  one  who  gets  it.  Because  the  danger  is 
to  be  foreseen,  there  is  a  duty  to  avoid  the  injury.  Cases  were  cited 
by  way  of  illustration  in  which  manufacturers  were  not  subject  to 
any  duty  irrespective  of  contract.  The  distinction  was  said  to  be 
that  their  conduct,  though  negUgent,  was  not  likely  to  result  in  in- 
jury to  any  one  except  the  purchaser.  We  are  not  required  to  say 
whether  the  chance  of  injury  was  always  as  remote  as  the  distinction 
assumes.  Some  of  the  illustrations  might  be  rejected  to-day.  The 
principle  of  the  distinction  is,  for  present  purposes,  the  important 


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252  macpherson  v.  buick  motor  company     [chap.  II. 

thing.  Thomas  v,  Winchester  became  quickly  a  landmark  of  the  law. 
In  the  application  of  its  principle  there  may,  at  times,  have  been 
uncertainty  or  even  error.  There  has  never  in  this  state  been  doubt 
or  disavowal  of  the  principle  itself.  The  chief  cases  are  well  known, 
yet  to  recall  some  of  them  will  be  helpful.  Loop  v.  Litchfield,  42 
N.  Y.  351, 1  Am.  Rep.  513,  is  the  earliest.  It  was  ^e  case  of  a  defect 
in  a  small  balance  wheel  used  on  a  circular  saw.  The  manufacturer 
pointed  out  the  defect  to  the  buyer,  who  wished  a  ch^p  article  and 
was  ready  to  assume  the  risk.  The  risk  can  hardly  have  been  an 
inmunent  one,  for  the  wheel  lasted  five  years  before  it  broke.  In  the 
meanwhile  the  buyer  had  made  a  lease  of  the  machinery.  It  was  held 
that  the  manufacturer  was  not  answerable  to  the  lessee.  Loop  v. 
Litchfield  was  followed  in  Losee  v.  Clute,  51  N.  Y.  494,  10  Am,  Rep. 
638,  the  case  of  the  explosion  of  a  steam  boiler.  That  decision  has 
been  criticized  (Thompson  on  Negligence,  233;  Shearman  &  Red- 
field  on  Negligence,  [6th  ed.]  §  117);  but  it  must  be  confined  to  its 
special  facts.  It  was  put  upon  the  ground  that  the  risk  of  injury  was 
too  remote.  The  buyer  in  that  case  had  not  only  accepted  the  boiler, 
but  had  tested  it.  The  manufactiu^r  knew  that  his  own  test  was  not 
the  final  one.  The  finality  of  the  test  has  a  bearing  on  the  measure  of 
diligence  owing  to  persons  other  than  the  purchaser.  Beven,  Negli- 
gence, (3d  ed.)  pp.  50,  51,  54;  Wharton,  Negligence,  (2d  ed.)  §  134. 

These  early  cases  suggest  a  narrow  construction  of  the  rule.  Later 
cases,  however,  evince  a  more  liberal  spirit.  First  in  importance  is 
Devlin  v.  Smith,  89  N.  Y.  470,  42  Am.  Rep.  311.  The  defendant,  a 
contractor,  built  a  scaffold  for  a  painter.  ITie  painter's  servants  were 
injured.  The  contractor  was  held  liable.  He  knew  that  the  scaffold, 
if  improperly  constructed,  was  a  most  dangerous  trap.  He  knew  that 
it  was  to  be  used  by  the  workmen.  He  was  building  it  for  that  very 
purpose.  Building  it  for  their  use,  he  owed  them  a  duty,  irrespective 
of  his  contract  with  their  master,  to  build  it  with  care. 

From  Devlin  v.  Smith  we  pass  over  intermediate  cases  and  turn  to 
the  latest  case  in  this  comrt  in  which  Thomas  v.  Winchester  was  fol- 
lowed. That  case  is  Statler  v.  Ray  Mfg.  Co.,  195  N.  Y.  478,  480, 
88  N.  E.  1063.  The  defendant  manufactiu^d  a  large  coffee  urn.  It 
was  installed  in  a  restaurant.  When  heated,  the  urn  exploded  and 
injured  the  plaintiff.  We  held  that  the  manufacturer  was  liable. 
We  said  that  the  urn  "  was  of  such  a  character  inherently  that,  when 
applied  to  the  purposes  for  which  it  was  designed,  it  was  liable  to 
become  a  source  of  great  danger  to  many  people  if  not  carefully  and 
properly  constructed." 

It  may  be  that  Devlin  v.  Smith  and  Statler  v.  Ray  Mfg.  Co.  have 
extended  the  rule  of  Thomas  v.  Winchester.  If  so,  this  court  is  com- 
mitted to  the  extension.  The  defendant  argues  that  things  immi- 
nently dangerous  to  life  are  poisons,  explosives,  deadly  weapons  — 
things  whose  normal  function  it  is  to  injure  or  destroy.   But  whatever 


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SECT.  VIIO    MacPHERSON  V.  BUICK  MOTOR  COMPANY  253 

the  rule  in  Thomas  v.  Wmchester  may  once  have  been,  it  has  no  longer 
that  restricted  meaning.  A  scaffold  (Devlin  v.  Smith,  supra)  is  not 
inherently  a  destructive  instnmient.  It  becomes  destructive  only  if 
imperfectly  constructed.  A  large  coffee  urn  (Statler  v.  Ray  Mfg. 
Co.,  supra)  may  have  within  itself,  if  negligently  made,  the  potency 
of  danger,  yet  no  one  thinks  of  it  as  an  implement  whose  normal 
function  is  destruction.  What  is  true  of  the  coffee  urn  is  equally  true 
of  bottles  of  aerated  water.  Torgesen  v.  Schultz,  192  N.  Y.  166,  84 
N.  E.  956,  18  L.  R.  A.  (n.  s.)  726,  127  Am.  St.  Rep.  894.  We  have 
mentioned  only  cases  in  this  court.  But  the  rule  has  received  a  like 
extension  in  our  courts  of  intermediate  appeal.  In  Biu-ke  v,  Ireland, 
26  App.  Div.  487,  50  N.  Y.  Supp.  369,  in  an  opmion  by  Cullen,  J.,  it 
was  applied  to  a  builder  who  constructed  a  defective  building;  in 
Kahner  v.  Otis  Elevator  Co.,  96  App.  Div.  169,  89  N.  Y.  Supp.  185, 
to  the  manufacturer  of  an  elevator;  in  Davies  v.  Pelham  Hod  Elevat- 
ing Co.,65  Hun,  573, 20  N.  Y.  Supp.  523,  aflarmed  in  this  court  without 
opinion,  146  N.  Y.  363,  41  N.  E.  88,  to  a  contractor  who  furnished  a 
defective  rope  with  knowledge  of  the  purpose  for  which  the  rope  was 
to  be  used.  We  are  not  required  at  this  time  either  to  approve  or  to 
disapprove  the  application  of  the  rule  that  was  made  in  these  cases.  It 
is  enough  that  they  help  to  characterize  the  trend  of  judicial  thought. 

Devlin  v.  Smith  was  decided  in  1882.  A  year  later  a  very  similar 
case  came  before  the  Court  of  Appeal  in  England  (Heaven  v.  Pender, 
11  Q.  B.  D.  503).  We  find  in  the  opinion  of  Brett,  M.  R.,  afterwards 
Lord  Esher,  the  same  conception  of  a  duty,  irrespective  of  contract, 
imposed  upon  the  manufacturer  by  the  law  itself: 

"  Whenever  one  person  supplies  goods  or  machinery,  or  the  like, 
for  the  piu-pose  of  their  being  used  by  another  person  under  such 
circumstences  that  every  one  of  ordinary  sense  would,  if  he  thought, 
recognize  at  once  that  imless  he  used  ordinary  care  and  skill  with 
regard  to  the  condition  of  the  thing  supplied,  or  the  mode  of  supply- 
ing it,  there  will  be  danger  of  injury  to  the  person  or  property  of  him 
for  whose  use  the  thing  is  supplied,  and  who  is  to  use  it,  a  duty  arises 
to  use  ordinary  care  and  skill  as  to  the  condition  or  manner  of  supply- 
ing such  thing." 

He  then  points  out  that  for  a  neglect  of  such  ordinary  care  or  skill 
whereby  injury  happens,  the  appropriate  remedy  is  an  action  for 
negligence.  Tlie  right  to  enforce  this  liability  is  not  to  be  confined 
to  the  immediate  buyer.  The  right,  he  says,  extends  to  the  persons 
or  class  of  persons  for  whose  use  the  thing  is  supplied.  It  is  enough 
that  the  goods  "  would  in  all  probability  be  used  at  once  .  .  .  before 
a  reasonable  opportunity  for  discovering  any  defect  which  might 
exist,"  and  that  the  thing  supplied  is  of  such  a  nature  "  that  a  neglect 
of  ordinary  care  or  skill  as  to  its  condition  or  the  manner  of  supply- 
ing it  would  probably  cause  danger  to  the  person  or  property  of  the 
person  for  whose  use  it  was  supplied,  and  who  was  about  to  use  it." 


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254  MacPHERSON  v.  BUICK  motor  company       [CHAP.  II. 

On  the  other  hand,  he  would  exclude  a  case  "  in  which  the  goods 
are  supplied  under  circumstances  in  which  it  would  be  a  chance  by 
whom  they  would  be  used  or  whether  they  would  be  used  or  not,  or 
whether  they  would  be  used  before  there  would  probably  be  means 
of  observing  any  defect,"  or  where  the  goods  are  of  such  a  nature 
that  "  a  want  of  care  or  skill  as  to  their  condition  or  the  manner  of 
supplying  them  would  not  probably  produce  danger  of  injury  to  per- 
son or  property."  What  waa  said  by  Lord  Esher  in  that  case  did  not 
command  the  full  assent  of  his  associates.  His  opinion  has  been 
criticized  "  as  requiring  every  man  to  take  aflSrmative  precautions  to 
protect  his  neighbors  as  well  as  to  refrain  from  injuring  them." 
Bohlen,  Affirmative  Obligations  in  the  Law  of  Torts,  44  Am.  Law 
Reg.  (n.  s.)  34L  It  may  not  be  an  accurate  exposition  of  the  law 
of  England.  Perhaps  it  may  need  some  qualification  even  in  our  own 
state.  Like  most  attempts  at  comprehensive  definition,  it  may  involve 
errors  of  inclusion  and  of  exclusion.  But  its  tests  and  standards,  at 
least  in  their  underlying  principles  with  whatever  qualification  may 
be  called  for  as  they  are  applied  to  varying  conditions,  are  the  tests 
and  standards  of  oiu-  law. 

We  hold,  then,  that  the  principle  of  Thomas  v.  Winchester  is  not 
limited  to  poisons,  explosives,  and  things  of  like  nature,  to  things 
which  in  their  normal  operation  are  implements  of  destruction.  If 
the  nature  of  a  thing  is  such  that  it  is  reasonably  certain  to  place  life 
and  limb  in  peril  when  negligently  made,  it  is  then  a  thing  of  danger. 
Its  nature  gives  warning  of  the  consequences  to  be  expected.  If  to 
the  element  of  danger  there  is  added  knowledge  that  the  thing  will 
be  used  by  persons  other  than  the  purchaser,  and  used  without  new 
tests,  then,  irrespective  of  contract,  the  manufacturer  of  this  thing  of 
^  danger  is  under  a  duty  to  make  it  carefully.  That  is  as  far  as  we  are 
required  to  go  for  the  decision  of  this  case.  There  must  be  knowledge 
of  a  danger,  not  merely  possible,  but  probable.  It  is  possible  to  use 
almost  anything  in  a  way  that  will  taiake  it  dangerous  if  defective. 
That  is  not  enough  to  charge  the  manufactiu^r  with  a  duty  inde- 
pendent of  his  contract.  Whether  a  given  thing  is  dangerous  may 
be  sometimes  a  question  for  the  court  and  sometimes  a  question  for 
the  jury.  There  must  also  be  knowledge  that  in  the  usual  course  of 
events  the  danger  will  be  shared  by  others  than  the  buyer.  Such 
knowledge  may  often  be  inferred  from  the  nature  of  the  transaction. 
But  it  is  possible  that  even  knowledge  of  the  danger  and  of  the  use 
will  not  always  be  enough.  The  proximity  or  remoteness  of  the  rela- 
tion is  a  factor  to  be  considered.  We  are  dealing  now  with  the  lia- 
bility of  the  manufacturer  of  the  finished  product,  who  puts  it  on 
the  market  to  be  used  without  inspection  by  his  customers.  If  he  is 
negligent,  where  danger  is  to  be  foreseen,  a  liability  will  foUow. 

We  are  not  required  at  this  time  to  say  that  it  is  legitimate  to  go 
back  of  the  manufacturer  of  the  finished  product  and  hold  the  manu- 


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SECT.  VII.]    MacPHERSON  V.  BUICK  MOTOR  COMPANY  255 

facturers  of  the  component  parts.  To  make  their  negligence  a  cause 
of  imminent  danger,  an  independent  cause  must  often  intervene;  the 
manufacturer  of  the  finished  product  must  also  fail  in  his  duty  of 
inspection.  It  may  be  that  in  those  circumstances  the  negligence  of 
the  earlier  members  of  the  series  is  too  remote  to  constitute,  as  to  the 
ultimate  user,  an  actionable  wrong.  Beven  on  Negligence,  (3d  ed.) 
50,  51,  54;  Wharton  on  Negligence,  (2d  ed.)  §  134;  Leeds  v,  N.  Y. 
Tel.  Co.,  178  N.  Y.  118,  70  N.  E.  219;  Sweet  v,  Perkins,  196  N.  Y. 
482,  90  N.  E.  50;  Hayes  v,  Hyde  Park,  153  Mass.  514,  516,  27  N.  E. 
522, 12  L.  R.  A.  249.  We  leave  that  question  open.  We  shall  have  to 
deal  with  it  when  it  arises.  The  difficulty  which  it  suggests  is  not 
present  in  this  case.  Therie  is  here  no  break  in  the  chain  of  cause  and 
efifect.  In  such  circumstances,  the  presence  of  a  known  danger,  at- 
tendant upon  a  known  use,  makes  vigilance  a  duty.  We  have  put 
aside  the  notion  that  the  duty  to  safeguard  life  and  limb,  when  the 
consequences  of  negligence  may  be  foreseen,  grows  out  of  contract  and 
nothing  else.  We  have  put  the  source  of  the  obligation  where  it  ought 
to  be.    We  have  put  its  source  in  the  law. 

From  this  survey  of  the  decisions,  there  thus  emerges  a  definition  of 
the  duty  of  a  manufacturer  which  enables  us  to  measure  this  defend- 
ant's liability.  Beyond  all  question,  the  nature  of  an  automobile  gives 
warning  of  probable  danger  if  its  construction  is  defective.  This 
automobile  was  designed  to  go  50  miles  an  hour.  Unless  its  wheels 
were  sound  and  strong,  injury  was  almost  certain.  It  was  as  much 
a  thing  of  danger  as  a  defective  engine  for  a  railroad.  The  defendant 
knew  the  danger.  It  knew  also  that  the  car  would  be  used  by  persons 
other  than  the  buyer.  This  was  apparent  from  its  size;  there  were 
seats  for  three  persons.  It  was  apparent  also  from  the  fact  that  the 
buyer  was  a  dealer  in  cars,  who  bought  to  resell.  The  maker  of  this 
car  supplied  it  for  the  use  of  purchasers  from  the  dealer  just  as  plainly 
as  the  contractor  in  Devlin  v.  Smith  supplied  the  scaffold  for  use  by 
the  servants  of  the  owner.  The  dealer  was  indeed  the  one  person  of 
whom  it  might  be  said  with  some  approach  to  certainty  that  by  him 
the  car  would  not  be  used.  Yet  the  defendant  would  have  us  say 
that  he  was  the  one  person  whom  it  was  under  a  l^al  duty  to  protect. 
The  law  does  not  lead  us  to  so  inconsequent  a  conclusion.  Precedents 
drawn  from  the  days  of  travel  by  stage-coach  do  not  fit  the  conditions 
of  travel  to-day.  The  principle  that  the  danger  must  be  imminent 
does  not  change,  but  the  things  subject  to  the  principle  do  change. 
They  are  whatever  the  needs  of  life  in  a  developing  civilization 
requires  them  to  be. 

In  reaching  this  conclusion,  we  do  not  ignore  the  decisions  to  the 
contrary  in  other  jiuisdictions.  It  was  held  in  Cadillac  Co.  v.  John- 
son, 221  Fed.  801,  137  C.  C.  A.  279,  L.  R.  A.  1915E,  287,  that  an 
autconobile  is  not  within  the  rule  of  Thomas  v.  Winchester.  There 
was,  however,  a  vigorous  dissent.    Opposed  to  that  decision  is  one  of 


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256  MacPHERSON  v.  BUICK  motor  company       [chap.  II. 

the  Court  of  Appeals  of  Kentucky.  t)lds  Motor  Works  v.  Shaffer, 
145  Ky.  616, 140  S.  W.  1047, 37  L.  R.  A.  (n.  s.)  560,  Ann.  Cas.  1913B, 
689.  The  earlier  cases  are  summarized  by  Judge  Sanborn  in  Huset  v. 
J.  I.  Case  Threshing  Machine  Co.,  120  Fed.  865,  57  C.  C.  A.  237,  61 
L.  R.  A.  303.  Some  of  them,  at  first  sight  inconsistent  with  our  con- 
clusion, may  be  reconciled  upon  the  ground  that  the  negligence  was 
too  remote,  and  that  another  cause  had  intervened.  But  even  when 
they  cannot  be  reconciled  the  difference  is  rather  in  the  application  of 
the  principle  than  in  the  principle  itself.  Judge  Sanborn  says,  for 
example,  that  the  contractor  who  builds  a  bridge,  or  the  manufacturer 
who  builds  a  car,  cannot  ordinarily  foresee  injury  to  other  persons 
than  the  owner  as  the  probable  resiilt.  120  Fed.  865,  at  page  867,  57 
C.  C.  A.  237,  at  page  239,  61  L.  R.  A.  303.  We  take  a  different  view. 
We  think  that  injuryto  others  is  to  be  foreseen  not  merelyas  a  possible, 
but  as  an  almost  inevitable  result.  See  the  trenchant  criticism  in 
Bohlen,  supra,  at  page  351.  Indeed,  Judge  Sanborn  concedes  that  his 
view  is  not  to  be  reconciled  with  our  decision  in  Devlin  v.  Smith,  supra. 
The  doctrine  of  that  decision  has  now  become  the  settled  law  of  this 
state,  and  we  have  no  desire  to  depart  from  it. 

In  England  the  limits  of  the  rule  are  still  unsettled.  Winterbottom 
V,  Wright,  10  M.  &  W.  109,  is  often  cited.  The  defendant  undertook 
to  provide  a  mail  coach  to  carry  the  mail  bags.  The  coach  broke  down 
from  latent  defects  in  its  construction.  The  defendant,  however,  was 
not  the  manufacturer.  The  court  held  that  he  was  not  liable  for  in- 
juries to  a  passenger.  The  case  was  decided  on  a  demurrer  to  the 
declaration.  Lord  Esher  points  out  in  Heaven  v.  Pender,  supra,  at 
page  513,  that  the  form  of  the  declaration  was  subject  to  criticism. 
It  did  not  fairly  suggest  the  existence  of  a  duty  aside  from  the  special 
contract  which  was  the  plaintiff's  main  reliance.  See  the  criticism  of 
Winterbottom  v.  Wright,  in  Bohlen,  supra,  at  pages  281,  283.  At  aU 
events,  in  Heaven  v,  Pender,  supra,  the  defendant,  a  dock  owner,  who 
put  up  a  staging  outside  a  ship,  was  held  liable  to  the  servants  of  the 
shipowner.  In  Elliot  v.  Hall,  15  Q.  B.  D.  315,  the  defendant  sent  out 
a  defective  truck  laden  with  goods  which  he  had  sold.  The  buyer's 
servants  unloaded  it,  and  were  injured  because  of  the  defects.  It  was 
held  that  the  defendant  was  under  a  duty  '*  not  to  be  guilty  of  negli- 
gence with  regard  to  the  state  and  condition  of  the  truck."  There 
seems  to  have  been  a  return  to  the  doctrine  of  Winterbottom  v.  Wright 
in  Earl  v,  Lubbock,  [1905]  1  K.  B.  253.  In  that  case,  however,  as 
in  the  earlier  one,  the  defendant  was  not  the  manufacturer.  He  had 
merely  made  a  contract  to  keep  the  van  in  repair.  A  later  case  (White 
V.  Steadman,  [1913]  3  K.  B.  340,  348)  emphasizes  that  element.  A 
Uvery  stable  keeper  who  sent  out  a  vicious  horse  was  held  liable,  not 
merely  to  his  customer,  but  also  to  another  occupant  of  the  carriage, 
and  Thomas  v.  Winchester  was  cited  and  followed.  White  v.  Stead- 
man,  supra,  at  pages  348,  349.    It  was  again  cited  and  followed  in 


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SECT.  VII.]      MacPHERSON  V.  BUICK  MOTOR  COMPANY  257 

Dominion  Natural  Gas  Co.  v.  Collins,  [1909]  A.  C.  640,  646.  From 
these  cases  a  consistent  principle  is  with  diflSculty  extracted.  The 
English  courts,  however,  agree  with  ours  in  holding  that  one  who 
invites  another  to  make  use  of  an  appliance  is  bound  to  the  exercise  of 
reasonable  care.  Caledonian  Ry.  Co.  v.  Mulholland,  [1898]  A.  C. 
216,  227;  Indermaur  v.  Dames,  L.  R.  1  C.  P.  274.  That  at  bottom 
is  the  underlying  principle  of  Devlin  v.  Smith.  The  contractor  who 
builds  the  scaffold  invites  the  owner's  workmen  to  use  it.  The  manu- 
facturer who  sells  the  automobile  to  the  retail  dealer  invites  the  deal- 
er's customers  to  use  it.  The  invitation  is  addressed  in  the  one  case 
to  determinate  persons  and  in  the  other  to  an  indeterminate  class, 
but  in  each  case  it  is  equally  plain,  and  in  each  its  consequences  must 
be  the  same. 

There  is  nothing  anomalous  in  a  rule  which  imp>oses  upon  A.,  who 
has  contracted  with  B.,  a  duty  to  C.  and  D.  and  others  according  as  he 
knows  or  does  not  know  that  the  subject-matter  of  the  contract  is  in- 
tended for  their  use.  We  may  find  an  analogy  in  the  law  which  meas- 
ures the  liability  of  landlords.  If  A.  leases  to  B.  a  tumble-down 
house,  he  is  not  liable,  in  the  absence  of  fraud,  to  B.'s  guests  who  enter 
it  and  are  injured.  This  is  because  B.  is  then  under  the  duty  to  repair 
it,  the  lessor  has  the  right  to  suppose  that  he  will  fulfill  that  duty, 
and,  if  he  omits  to  do  so,  his  guests  must  look  to  him.  Bohlen,  supra^ 
at  page  276.  But  if  A.  leases  a  building  to  be  used  by  the  lessee  at 
once  as  a  place  of  public  entertainment,  the  rule  is  different.  There 
injury  to  persons  other  than  the  lessee  is  to  be  foreseen,  and  foresight 
of  the  consequences  involves  the  creation  of  a  duty.  Junkermann  v. 
TUyou  R.  Co.,  213  N.  Y.  404,  108  N.  E.  190,  L.  R.  A.  1915F,  700, 
and  cases  there  cited. 

In  this  view  of  the  defendant's  liability  there  is  nothing  inconsistent 
with  the  theory  of  liability  on  which  the  case  was  tried.  It  is  true 
that  the  court  told  the  jury  that  "  an  automobile  is  not  an  inherently 
dangerous  vehicle."  The  meaning,  however,  is  made  plain  by  the 
context.  The  meaning  is  that  danger  is  not  to  be  expected  when  the 
vehicle  ig  well  constructed.  The  court  left  it  to  the  jury  to  say  whether 
the  defendant  ought  to  have  foreseen  that  the  car,  if  negligently  con- 
structed, would  become  "  imminently  dangerous."  Subtle  distinc- 
tions are  drawn  by  the  defendant  between  things  inherently  dangerous 
and  things  imminently  dangerous,  but  the  case  does  not  turn  upon 
these  verbal  niceties.  If  danger  was  to  be  expected  as  reasonably 
certain,  there  was  a  duty  of  vigilance,  and  this  whether  you  call  the 
danger  inherent  or  imminent.  In  varying  forms  that  thought  was 
put  before  the  jury.  We  do  not  say  that  the  court  would  not  have 
been  justified  in  ruling  as  a  matter  of  law  that  the  car  was  a  danger- 
ous thing.  If  there  was  any  error,  it  was  none  of  which  the  defendant 
can  complain. 


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258  MacPHERSON  v.  BUICK  motor  company       [CHAP.  II. 

We  think  the  defendant  was  not  absolved  from  a  duty  of  inspection 
because  it  bought  the  wheels  from  a  reputable  manufacturer.  It  was 
not  merely  a  dealer  in  automobiles.  It  was  a  manufacturer  of  auto- 
mobiles. It  was  responsible  for  the  finished  product.  It  was  not  at 
liberty  to  put  the  finished  product  on  the  market  without  subjecting 
the  component  parts  to  ordinary  and  simple  tests.  Richmond  & 
Danville  R.  R.  Co.  v.  Elliott,  149  U.  S.  266,  272,  13  Sup.  Ct.  837,  37 
L.  Ed.  728.  Under  the  charge  of  the  trial  judge  nothing  more  was 
required  of  it.  The  obligation  to  inspect  must  vary  with  the  nature  of 
the  thing  to  be  inspected.  The  more  probable  the  danger  the  greater 
the  need  of  caution. 

There  is  Uttle  analogy  between  this  case  and  Carlson  v.  Phoenix 
Bridge  Co.,  132  N.  Y.  273,  30  N.  E.  750,  where  the  defendant  bought 
a  tool  for  a  servant's  use.  The  making  of  tools  was  not  the  business  in 
which  the  master  was  engaged.  Reliance  on  the  skill  of  the  manufac- 
turer was  proper  and  almost  inevitable.  But  that  is  not  the  defend- 
ant's situation.  Both  by  its  relation  to  the  work  and  by  the  nature  of 
its  business,  it  is  charged  with  a  stricter  duty. 

Other  rulings  complained  of  have  been  considered,  but  no  error  has 
been  found  in  them. 

The  judgment  should  be  aflBrmed,  with  costs. 

WiLLARD  Bartlett,  C.  J.  (dissenting) .  The  plaintiff  was  injured 
in  consequence  of  the  collapse  of  a  wheel  of  an  automobile  manufac- 
tured by  the  defendant  corporation  which  sold  it  to  a  firm  of  auto- 
mobile dealers  in  Schenectady,  who  in  turn  sold  the  car  to  the  plaintiff. 
The  wheel  was  purchased  by  the  Buick  Motor  Company,  ready  made, 
from  the  Imperial  Wheel  Company  of  Flint,  Mich.,  a  reputable  manu- 
facturer of  automobile  wheels  which  had  furnished  the  defendant  with 
80,000  wheels,  none  of  which  had  proved  to  be  made  of  defective  wood 
prior  to  the  accident  in  the  present  case.  The  defendant  relied  upon 
the  wheel  manufacturer  to  make  all  necessary  tests  as  to  the  strength 
of  the  material  therein,  and  made  no  such  test  itself.  The  present 
suit  is  an  action  for  negligence,  brought  by  the  subvendee  of  the  motor 
car  against  the  manufacturer  as  the  original  vendor.  The  evidence 
warranted  a  finding  by  the  jury  that  the  wheel  which  collapsed  was 
defective  when  it  left  the  hands  of  the  defendant.  The  automobile 
was  being  prudently  operated  at  the  time  of  the  accident,  and  was 
moving  at  a  speed  of  only  eight  miles  an  hour.  There  was  no  allega- 
tion or  proof  of  any  actual  knowledge  of  the  defect  on  the  part  of  the 
defendant,  or  any  suggestion  that  any  element  of  fraud  or  deceit  or 
misrepresentation  entered  into  the  sale. 

The  theory  upon  which  the  case  was  submitted  to  the  jury  by  the 
learned  judge  who  presided  at  the  trial  was  that,  although  an  auto- 
mobile is  not  an  inherently  dangerous  vehicle,  it  may  become  such  if 
equipped  with  a  weak  wheel;  and  that  if  the  motor  car  in  question, 
when  it  was  put  upon  the  market  was  in  itself  inherently  dangerous  by 


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SECT.  VII.]    MacPHERSON  V.  BUICK  MOTOR  COMPANY  259 

reason  of  its  being  equipped  with  a  weak  wheel,  the  defendant  was 
chargeable  with  a  knowledge  of  the  defect  so  far  as  it  might  be  dis- 
covered by  a  reasonable  inspection  and  the  application  of  reasonable 
tests.  This  liability,  it  was  further  held,  was  not  limited  to  the  orig- 
inal vendee,  but  extended  to  a  subvendee  like  the  plaintiff,  who  was 
not  a  party  to  the  original  contract  of  sale. 

I  tldnk  that  these  rulings,  which  have  been  approved  by  the  Ap- 
pellate Division,  extend  the  liability  of  the  vendor  of  a  manufactured 
article  further  than  any  case  which  has  yet  received  the  sanction  of 
this  court.  It  has  heretofore  been  held  in  this  state  that  the  liability 
of  the  vendor  of  a  manufactured  article  for  negligence  arising  out  of 
the  existence  of  defects  therein  does  not  extend  to  strangers  injured 
in  consequence  of  such  defects,  but  is  confined  to  the  immediate  ven- 
dee. The  exceptions  to  this  general  rule  which  have  thus  far  been 
recognized  in  New  York  are  cases  in  which  the  article  sold  was  of 
such  a  character  that  danger  to  life  or  limb  was  involved  in  the  ordi- 
nary use  thereof;  in  other  words,  where  the  article  sold  was  inher- 
ently dangerous.  As  has  already  been  pointed  out,  the  learned  trial 
judge  instructed  the  jury  that  an  automobile  is  not  an  inherently 
dangerous  vehicle. 

The  late  Chief  Justice  Cooley  of  Michigan,  one  of  the  most  learned 
and  accurate  of  American  law  writers,  states  the  general  rule  thus: 

"  The  general  rule  is  that  a  contractor,  manufacturer,  vendor  or 
furnisher  of  an  article  is  not  liable  to  third  parties  who  have  no  con- 
tractual relations  with  him,  for  negligence  in  the  construction,  manu- 
facture or  sale  of  such  article."    2  Cooley  on  Torts,  (3d  ed.)  1486. 

The  leading  English  authority  in  support  of  this  rule,  to  which  all 
the  later  cases  on  the  same  subject  refer,  is  Winterbottom  v.  Wright, 
10  Meeson  &  Welsby,  109,  which  was  an  action  by  the  driver  of  a 
stagecoach  against  a  contractor  who  had  agreed  with  the  postmaster 
general  to  provide  and  keep  the  vehicle  in  repair  for  the  purpose  of 
conveying  the  royal  mail  over  a  prescribed  route.  The  coach  broke 
down  and  upset,  injuring  the  driver,  who  sought  to  recover  against 
the  contractor  on  account  of  its  defective  construction.  The  Court  of 
Exchequer  denied  him  any  right  of  recovery  on  the  ground  that  there 
was  no  privity  of  contract  between  the  parties,  the  agreement  having 
been  made  with  the  postmaster  general  alone. 

"  If  the  plaintiff  can  sue,"  said  Lord  Abinger,  the  Chief  Baron, 
"  every  passenger  or  even  any  person  passing  along  the  road  who  was 
injured  by  the  upsetting  of  the  coach  might  bring  a  similar  action. 
Unless  we  confine  the  operation  of  such  contracts  as  this  to  the  parties 
who  enter  into  them  the  most  absurd  and  outrageous  consequences, 
to  which  I  can  see  no  limit,  would  ensue." 

The  doctrine  of  that  decision  was  recognized  as  the  law  of  this 
state  by  the  leading  New  York  case  of  Thomas  v.  Winchester,  6  N.  Y. 
397,  408,  57  Am.  Dec.  455,  which,  however,  involved  an  exception  to 


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260  MacPHERSON  v.  BUICK  motor  company       [chap.  II. 

the  general  rule.  There  the  defendant,  who  was  a  dealer  in  medicines, 
sold  to  a  druggist  a  quantity  of  belladonna,  which  is  a  deadly  poison, 
negligently  labelled  as  extract  of  dandelion.  The  druggist  in  good 
faith  used  the  poison  in  filling  a  prescription  calling  for  the  harmless 
dandelion  extract,  and  the  plaintiff  for  whom  the  prescription  was  put 
up  was  poisoned  by  the  belladonna.  This  court  held  that  the  original 
vendor  was  liable  for  the  injuries  suffered  by  the  patient.  Chief  Judge 
Ruggles,  who  delivered  the  opinion  of  the  court,  distinguished  between 
an  act  of  negligence  imminently  dangerous  to  the  lives  of  others  and 
one  that  is  not  so,  saying: 

"  If  A.  build  a  wagon  and  sell  it  to  B.,  who  sells  it  to  C,  and  C. 
hires  it  to  D.,  who  in  consequence  of  the  gross  negligence  of  A.  in 
building  the  wagon  is  overturned  and  injured,  D.  cannot  recover 
damages  against  A.,  the  builder.  A.'s  obligation  to  build  the  wagon 
faithfully  arises  solely  out  of  his  contract  with  B.  The  public  have 
nothing  to  do  with  it.  .  .  .  So,  for  the  same  reason,  if  a  horse  be 
defectively  shod  by  a  smith,  and  a  person  hiring  the  horse  from  the 
owner  is  thrown  and  injured  in  consequence  of  the  smith's  negligence 
in  shoeing,  the  smith  is  not  liable  for  the  injury." 

In  Torgesen  v.  Schultz,  192  N.  Y.  156, 159, 84  N.  E.  956, 18  L.  R.  A. 
(n.  s.)  726,  127  Am.  St.  Rep.  894,  the  defendant  was  the  vendor  of 
bottles  of  aerated  water  which  were  charged  under  high  pressure  and 
likely  to  explode  unless  used  with  precaution  when  exposed  to  sudden 
changes  of  temperature.  The  plaintiff,  who  was  a  servant  of  the  pur- 
chaser, was  injured  by  the  explosion  of  one  of  these  bottles.  There 
was  evidence  tending  to  show  that  it  had  not  been  properly  tested  in 
order  to  insure  users  against  such  accidents.  We  held  that  the  defend- 
ant corporation  was  liable  notwithstanding  the  absence  of  any  con- 
tract relation  between  it  and  the  plaintiff  "  under  the  doctrine  of 
Thomas  v,  Winchester,  sujrra^  and  similar  cases  based  .upon  the  duty 
of  the  vendor  of  an  article  dangerous  in  its  nature  or  likely  to  become 
so  in  the  course  of  the  ordinary  usage  to  be  contemplated  by  the  ven- 
dor, either  to  exercise  due  care  to  warn  users  of  the  danger  or  to  take 
reasonable  care  to  prevent  the  article  sold  from  proving  dangerous 
when  subjected  only  to  customary  usage." 

The  character  of  the  exception  to  the  general  rule  limiting  liability 
for  negligence  to  the  original  parties  to  the  contract  of  sale,  was  still 
more  clearly  stated  by  Judge  Hiscock,  writing  for  the  court  in  Statler 
V.  Ray  Manufacturing  Co.,  195  N.  Y.  478,  482,  88  N.  E.  1063,  where 
he  said  that: 

"  In  the  case  of  an  article  of  an  inherently  dangerous  nature,  a 
manufacturer  may  become  liable  for  a  negligent  construction  which, 
when  added  to  the  inherent  character  of  the  appliance,  makes  it 
imminently  dangerous,  and  causes  or  contributes  to  a  resulting  injury 
not  necessarily  incident  to  the  use  of  such  an  article  if  properly 
constructed,  but  naturally  following  from  a  defective  construction/' 


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SECT.  VII.]         MacPHERSON  V,  BUICK  MOTOR  COMPANY  261 

In  that  case  the  injuries  were  inflicted  by  the  explosion  of  a  battery 
of  steam-driven  cofifee  urns,  constituting  an  appliance  liable  to  become 
dangerous  in  the  course  of  ordinary  usage. 

The  case  of  Devlin  v.  Smith,  89  N.  Y.  470,  42  Am.  Rep.  311,  is 
cited  as  an  authority  in  conflict  with  the  view  that  the  liability  of  the 
manufacturer  and  vendor  extends  to  third  parties  only  when  the 
article  manufactured  and  sold  is  inherently  dangerous.  In  that  case 
the  builder  of  a  scaffold  90  feet  high,  which  was  erected  for  the  pur- 
pose of  enabling  painters  to  stand  upon  it,  was  held  to  be  liable  to  the 
administratrix  of  a  painter  who  fell  therefrom  and  was  killed,  being 
at  the  time  in  the  employ  of  the  person  for  whom  the  scaffold  was 
built.  It  is  said  that  the  scaffold,  if  properly  constructed,  was  not 
inherently  dangerous,  and  hence  that  this  decision  affirms  the  exist- 
ence of  liability  in*  the  case  of  an  article  not  dangerous  in  itself,  but 
made  so  only  in  consequence  of  negligent  construction.  Whatever 
logical  force  there  may  be  in  this  view  it  seems  to  me  clear  from  the 
language  of  Judge  Rapallo,  who  wrote  the  opinion  of  the  court,  that 
the  scaffold  was  deemed  to  be  an  inherently  dangerous  structure,  and 
that  the  case  was  decided  as  it  was  because  the  court  entertained  that 
view.  Otherwise  he  would  hardly  have  said,  as  he  did,  that  the  cir- 
cimistances  seemed  to  bring  the  case  fairly  within  the  principle  of 
Thomas  v,  Winchester. 

I  do  not  see  how  we  can  uphold  the  judgment  in  the  present  case 
without  overruling  what  has  been  so  often  said  by  this  court  and  other 
courts  of  like  authority  in*  reference  to  the  absence  of  any  liability 
for  negligence  on  the  part  of  the  original  vendor  of  an  ordinary  car- 
riage to  any  one  except  his  immediate  vendee.  The  absence  of  such 
liability  was  the  very  point  actually  decided  in  the  English  case  of 
Winterbottom  v,  Wright,  ^w^pn-ay  and  the  illustration  quoted  from  the 
opinion  of  Chief  Judge  Ruggles  in  Thomas  v,  Winchester,  Buipra, 
assumes  that  the  law  on  the  subject  was  so  plain  that  the  statement 
would  be  accepted  almost  as  a  matter  of  course.  In  the  case  at  bar 
the  defective  wheel  on  an  automobile,  moving  only  eight  miles  an  hour, 
was  not  any  more  dangerous  to  the  occupants  of  the  car  than  a  simi- 
larly defective  wheel  would  be  to  the  occupants  of  a  carriage  drawn 
by  a  horse  at  the  same  speed,  and  yet,  unless  the  courts  have  been  all 
wrong  on  this  question  up  to  the  present  time,  there  would  be  no  lia- 
bility to  strangers  to  the  original  sale  in  the  case  of  the  horse-drawn 
carriage. 

The  rule  upon  which,  in  my  judgment,  the  determination  of  this 
case  depends,  and  the  recognized  exceptions  thereto,  were  discussed  by 
Circuit  Judge  Sanborn,  of  the  United  States  Circuit  Court  of  Appeals 
in  the  Eighth  Circuit,  in  Huset  v,  J.  I.  Case  Threshmg  Machine  Co., 
120  Fed.  865,  57  C.  C.  A.  237,  61  L.  R.  A.  303,  m  an  opinion  which 
reviews  all  the  leading  American  and  English  decisions  on  the  subject 
up  to  the  time  when  it  was  rendered  (1903).   I  have  already  discussed 


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262  MacPHERSON  v.  BUICK  motor  company      [CHAP.  n. 

the  leading  New  York  cases,  but  as  to  the  rest  I  feel  that  I  can  add 
nothmg  to  the  learning  of  that  opinion  or  the  cogency  of  its  reasoning. 
I  have  examined  the  cases  to  which  Judge  Sanborn  refers,  but  if  I 
were  to  discuss  them  at  length,  I  should  be  forced  merely  to  para- 
phrase his  language,  as  a  study  of  the  authorities  he  cites  has  led  me 
to  the  same  conclusion;  and  the  repetition  of  what  has  already  been 
so  well  said  would  contribute  nothing  to  the  advantage  of  the  bench, 
the  bar,  or  the  individual  litigants  whose  case  is  before  us. 

A  few  cases  decided  since  his  opinion  was  written,  however,  may  be 
noticed.  In  Earl  v.  Lubbock,  [1905]  L.  R.  1  K.  B.  Div.  253,  the  Court 
of  Appeal  in  1904  considered  and  approved  the  propositions  of  law 
laid  down  by  the  Court  of  Exchequer  in  Winterbottom  v.  Wright, 
supra,  declaring  that  the  decision  in  that  case,  since  the  year  1842, 
had  stood  the  test  of  repeated  discussion.  The  Master  of  the  Rolls 
approved  the  principles  laid  down  by  Lord  Abinger  as  based  upon 
sound  reasoning;  and  all  the  members  of  the  court  agreed  that  his 
decision  was  a  controlling  authority  which  must  be  followed.  That 
the  federal  courts  still  adhere  to  the  general  rule,  as  I  have  stated  it, 
appears  by  the  decision  of  the  Circuit  Court  of  Appeals  in  the  Second 
Circuit,  in  March,  1915,  in  the  case  of  Cadillac  Motor  Car  Co.  v. 
Johnson,  221  Fed.  801, 137  C.  C.  A.  279,  L.  R.  A.  1915E,  287.  That 
case,  like  this,  was  an  action  by  a  subvendee  against  a  manufacturer 
of  automobiles  for  negligence  in  failing  to  discover  that  one  of  its 
wheels  was  defective,  the  court  holding  that  such  an  action  could  not 
be  maintained.  It  is  true  there  was  a  dissenting  opinion  in  that  case, 
but  it  was  based  chiefly  upon  the  proposition  that  rules  applicable 
to  stage-coaches  are  archaic  when  applied  to  automobiles,  and  that  if 
the  law  did  not  afford  a  remedy  to  strangers  to  the  contract,  the  law 
should  be  changed.  If  this  be  true,  the  change  should  be  effected  by 
the  Legislature  and  not  by  the  courts.  A  perusal  of  the  opinion  in 
that  case  and  in  the  Huset  Case  will  disclose  how  uniformly  the 
courts  throughout  this  country  have  adhered  to  the  rule  and  how 
consistently  they  have  refused  to  broaden  the  scope  of  the  exceptions. 
I  think  we  should  adhere  to  it  in  the  case  at  bar,  and  therefore  I  vote 
for  a  reversal  of  this  judgment. 

HiscocK,  Chase,  and  Cuddeback,  JJ.,  concur  with  Cardozo,  J., 
and  HoGAN,  J.,  concurs  in  result.  Willard  Bartlett,  C.  J.,  reads 
dissenting  opinion.    Pound,  J.,  not  voting. 

Judgment  affirmed.^ 

^  lAabiiUyof  abstracter  to  third  party  injured  by  mistake  or  omission  in  abstract 
of  title:  see  Thomas  v.  Guarantee  Title  &  Trust  Co.,  81  Ohio  St.  432;  Bremerton 
Development  Ck).  v.  Title  Trust  Co.,  67  Wash.  268. 

Liability  of  vxUer  company  to  injured  citizen  where  it  has  failed  to  provide  water 
for  extinguishment  of  fires  according  to  its  contract  with  the  municipality:  see 
Sunderland,  Liability  of  Water  Companies  for  Fire  Losses,  3  Mich.  Law  Rev.  442; 
Kales,  Liability  of  Water  Companies  for  Fire  Losses  —  Another  View,  3  Mich. 
Law  Rev.  501;  note  in  19  Green  Bag,  129-133. 


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SECT.  Vin.]  NEAL  V.  GILLETT  263 


Section  VIII 

CONTRIBUTOBT  CXTLPABLE  CONDUCT  OF  PlAINTIFP 


NEAL  V.  GILLETT 

Supreme  Court  op  Errors,  Connecticut,  June  Term,  1855. 

Reported  in  23  CannecHcut  ReporU,  437. 

Action  to  recover  for  personal  injury  alleged  to  have  been  incurred 
through  the  negligence  of  the  defendants.  Plaintiff  claimed  that  the 
defendants  were  guilty  of  gross  negligence,  as  the  cause  of  the  injury; 
and  that,  if  the  jury  should  so  find,  the  plaintiff  was  entitled  to  recover 
notwithstanding  there  had  been  on  his  part  a  want  of  mere  ordinary 
care  which  might  have  essentially  contributed  to  produce  the  injury 
complained  of.  The  Court  charged  the  jury  in  conformity  to  this 
claim  of  the  plaintiff.    Verdict  for  plaintiff.    Motion  for  new  trial. 

Sanford,  J.  [Omitting  opinion  on  another  point.]  *  The  question 
presented  upon  the  second  point,  is,  whether  a  plaintiff  is  entitled  to 
recover  for  an  injury,  produced  by  the  combined  operation  of  his  own 
want  of  "  ordinary  care,"  and  the  gross  negligence  of  the  defendant. 
The  exact  boundaries  between  the  several  degrees  of  care  and  their  cor- 
relative degrees  of  carelessness,  or  negligence,  are  not  always  clearly 
defined  or  easily  pointed  out.  We  think,  however,  that  by  "  ordinary 
care,"  is  meant  "  that  degree  of  care  which  may  reasonably  be  ex- 
pected from  a  person  in  the  party's  situation  "  (41  E.  C.  L.  R.  425),* 
that  is,  "  reasonable  care  "  (19  Conn.  R.  572) ;  and  that  '*  gross  negli- 
gence "  imports  not  a  malicious  intention  or  design  to  produce  a 
particular  injury,  but  a  thoughtless  disregard  of  consequences;  the 
absence,  rather  than  the  actual  exercise,  of  volition  with  reference  to 
results. 

What  is  the  measure  of  "  reasonable  care  "  must  of  course  depend 
upon  the  circumstances  of  the  particular  situation  in  which  the  party 
at  the  time  is  placed.  But  "  reasonable  care,"  every  one,  in  the  en- 
joyment of  his  rights,  and  the  performance  of  his  duties,  is  bound  to 
exercise  at  all  times  and  under  all  circimistances.  When  he  has  done 
that,  he  is  answerable  to  no  one  for  any  consequences  which  ensue, 
for  he  has  done  all  his  duty;  when  he  has  done  less  than  that  he  is  in 
fault,  and  if  an  injury  ensue  to  another  in  consequence  of  such  fault, 

^  Part  of  case  omitted;  also  arguments. 

On  the  subject  of  this  section  the  student  may  read  profitably,  Bohlen,  Con- 
tributory Negligence,  21  Harvard  Law  Rev.  233;  Clark,  Tort  Liability  for  Negli- 
gence in  Missouri,  Bull,  of  Univ.  of  Mo.  Law  Series,  No.  12,  pp.  25-43. 

»  1  Q.  B.  29,  36. 


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264  ,      NEAL  V.  GILLETT  [CHAP.  II. 

he  is  responsible  for  iff  if  to  himself,  he  must  bear  it.  If  in  the  en- 
jojnnent  of  their  laWfuTrigSts  by  two  persons,  at  the  same  time  and 
pteSe,  reasonable  ear^is  exercised  by  both,  and  an  injury  accrues  to 
one  of  them,  it  must  be  borne  by  the  suffering  party  as  a  providential 
visitation.  If.  such  care  is  exercised  by  neither  party,  and  an  injury 
accrues  to  one  of  tKem,  he  must  bear  it,  for  he  was  himself  in  fault. 
And  we  hold  that  when  the  gist  of  the  action  is  negligence  merely,  — 
whether  gross  or  slight,  the  plaintiff  is  not  entitled  to  recover,  when 
his  own  want  of  ordinary,  or  reasonable  care,  has  essentially  con- 
tributed to  his  injury;  because  he  is  himself  in  fault,  and  because  of 
the  difficulty,  if  not  impossibility,  of  ascertaining  in  what  proportions 
the  parties  respectively,  by  their  negligence,  have  contributed  to  the 
production  of  the  injury,  and  whether  it  would  have  been  produced  at 
all  but  by  the  combined  operation  of  the  negligence  of  both.  When 
the  injury  is  intentional,  and  designed,  other  considerations  apply. 

For  an3rthing  this  Court  can  see,  the  negligence  of  the  defendants, 
however  gross,  might  have  been  entirely  harmless,  but  for  the  plain- 
tiff's own  wrongful  contribution  to  the  combined  causes  which  pro- 
duced his  injiuy.  And  so  too,  for  anything  this  Court  can  see,  although 
the  defendants'  negligence  was  gross,  and  fully  adequate  to  the  pro- 
duction of  the  injury,  yet  the  plaintiff's  exercise  of  reasonable  care 
would  have  saved  him  from  its  consequences. 

In  the  recent  case  of  Park  v.  O'Brien,  23  Conn.  R.  339,  this  Court 
said,  "  It  is  necessary  for  the  plaintiff,  to  prove,  first,  negligence  on 
the  part  of  the  defendant,  and,  secondly,  that  the  injiuy  to  the  plaintiff 
occurred  in  consequence  of  that  negligence.  But  in  order  to  prove 
this  latter  point,  the  plaintiff  must  show  that  such  injury  was  not 
caused,  wholly,  or  in  part,  by  his  own  negligence;  ^  for  although  the 
defendant  was  guilty  of  negligence,  if  the  plaintiff's  negligence  con- 
tributed essentially  to  the  injmy,  it  is  obvious  that  it  did  not  occur  by 

»  Chicago  R.  Co.  v.  Ij^tj,  160  El.  385;  Toledo  R.  Co.  v,  Brannagaiij  76  Ind. 
490;  Cincinnati  R.  Co.  t;.  Butler,  103  Ind.  31  (but  changed  in  case  of  injunes  to  the 
person,  Acts  of  1899,  p.  68,  Bums'  Ann.  St.  §  362);  Greenleaf  r.  Illinois  R.  Co., 
29  la.  14  (but  changed  in  case  of  actions  ac^unst  a  common  carrier,  Suppl.  to  the 
Code,  1913,  §  3593  a);  Brown  v,  Hhnois  R.  Co.,  123  la.  239;  Dickey  t;.  Maine  Tel. 
Co.,  43  Me.  492;  Planz  v.  Boston  R.  Co.,  167  Mass.  377  (but  changed  by  Acts  of 
1914,  ch.  553);  Mynning  v.  Detroit  R.  Co.,  67  Mich.  677;  Curran  v.  Warren 
Chemical  Mfg.  Co.,  36  N.  Y.  163;  aty  v.  Nix,  3  Okl.  136;  Bovee  v.  Danville,  53 
Vt.  183  Accord. 

Contray  contributory  negligence  an  affirmative  defence:  Inland  Coasting  Co.  v. 
Tolson,  139  U.  S.  551:  Montgomery  Gaslight  Co.  v,  Montgomery  R.  Co.,  86  Ala. 
372;  Texas  R.  Co.  v.  Orr,  46  Ark.  182;  Atchison  v.  Wills,  21  App.  D.  C.  648;  Mac- 
Dougall  V,  Central  R.  Co..  63  Cal.  431:  Moore  v.  Lanier,  52  Fla.  353;  City  v. 
Hudson,  88  Ga.  599;  Hopkins  v.  Utah  R.  Co.,  2  Idaho,  300:  St.  Louis  R.  Co.  v. 
Weaver,  35  Kan.  412;  Hocum  v,  Weitherick,  22  Minn.  152;  Buesching  v.  St.  Louis 
Gaslight  Co.,  73  Mo.  219;  Nelson  v.  City,  16  Mont.  21;  O'Brien  v.  Omaha  Water 
Co..  83  Neb.  71;  Valley  v.  Concord  R.  (Jo.,  68  N.  H.  646;  New  Jersey  Exp.  Co.  v, 
Nichols,  33  N.  J.  Law  434;  Jordan  v.  City,  112  N.  C.  743;  Carr  v.  Minneapolis  R. 
Co.,  16  N.  D.  217;  Grant  v.  Baker.  12  Or.  329;  Beatty  v.  Gihnore,  16  Pa.  St.  463; 
Carter  v.  Columbia  R.  Co.,  19  S.  C.  20;  Houston  R.  Co.  v.  Cowser,  57  Tex.  293: 
Richmond  Granite  Co.  v.  Bailey,  92  Va.  554;  Johnson  v.  BelUngham  Imp.  Ck).,  13 
Waah.  466;  Fowler  v,  Baltimore  R.  Co.,  18  W.  Va.  679;  Hoth  v.  Peters,  66  Wis.  405. 


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SECT.  VIII.]       PAYNE  V.  CHICAGO  &  ALTON  R.  R.  CO.  265 

reason  of  the  defendant's  negligence."  "  Hence,  to  say  that  the  plain- 
tiff must  show  the  latter  "  [the  want  of  the  plaintiff's  concurring  negli- 
gence], "  is  only  saying  that  he  must  show  that  the  injury  was  owing 
to  the  negligence  of  the  defendant." 

The  same  reasonable  doctrine  is  sanctioned  by  other  decisions,  in 
our  own  Coiui;  and  elsewhere.  Birge  v.  Gardiner,  19  Conn.  R.  507; 
Beers  v.  Housatonic  R.  R.  Co.,  19  Conn.  R.  566,  and  cases  there  cit^. 

We  think,  therefore,  that  the  charge  of  the  Coiui;,  on  this  point,  was 
wrong,  and  that  a  new  trial  ought  to  be  granted. 

In  this  opinion  the  other  judges  concurred,  except  Ellsworth,  J., 
who  was  disqualified.  New  trial  to  be  granted,^ 


PAYNE  V.  CHICAGO  &  ALTON  RAILROAD  COMPANY 

Supreme  Court,  Missouri,  June  25, 1895. 

Reported  in  129  Missouri  Reports^  405. 

Action  for  personal  injuries  alleged  to  be  caused  by  the  negligence 
of  defendant.  Answer:  a  general  denial,  and  a  plea  of  contributory 
negligence.^ 

The  judge,  at  the  request  of  plaintiff,  gave  the  following  instruc- 
tion:— 

"  No.  7.  One  of  the  defences  in  this  case  interposed  by  the  defend- 
ant is  that  of  negligence  on  the  part  of  plaintiff,  Claude  Payne,  directly 
contributing  to  the  injuries  of  which  plaintiff  complains;  and  the 
court  instructs  the  jury  that  the  law  devolves  upon  the  defendant  the 
burden  of  proving  such  negligence  by  a  preponderance  of  the  evidence, 
and  it  is  not  suflScient  that  the  jury  may  believe  from  the  evidence 
that  the  plaintiff  was  simply  guilty  of  negligence,  but  that  the  negli- 
gence of  plaintiff,  and  not  that  of  the  defendant,  must  be  the  proxi- 
mate or  immediate  cause  of  the  injury,  to  excuse  the  defendant  from 
liability." 

In  the  Circuit  Coiui;  plaintiff  had  judgment.    Defendant  appealed. 

Macfarlane,  J.  Defendant  complains  of  instruction  7  given  the 
jury  at  the  request  of  plaintiff.  The  complaint  is  that  the  instruction 
improp)erly  defines  contributory  negligence. 

Contributory  negligence,  as  the  word  imports,  implies  the  concur- 
ring negligence  of  both  plaintiff  and  defendant.  The  phrase  is  defined 
by  Beach  as  follows:  "  Contributory  negligence,  in  its  legal  significa- 

^  As  to  contributory  negligence  as  a  bar  to  an  action  for  damage  caused  in  part 
hy  defendant's  failure  to  perform  a  duty  imposed  on  him  by  statute,  see  Bishop, 
Commentaries  on  the  Written  Laws,  §§  117,  117  a,  §  131,  pars.  2,  3,  §  134, 

r3.  3, 4,  S  139,  par.  1;  Kelley  v,  Killourey,  81  Conn.  320:  Catlett  v.  Young,  143 
74;  Shultz  v,  Griffith,  103  la.  160:  Hussey  v.  King,  83  Me.  568;  Wadsworth  v. 
Marshall,  88  Me.  263;  Schutt  v.  Adair,  99  Minn.  7;  Quimby  v.  Woodbury,  63 
N.  H.  370;  Kilpatrick  v.  Grand  Trunk  R.  Co.,  72  Vt.  263. 
'  Only  80  much  of  the  case  is  given  as  relates  to  a  single  point. 


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266  PAYNE  V.  CHICAGO  &  ALTON  R.  R.  CO.         [CHAP.  H. 

tioii;  is  such  an  act  or  omission  on  the  part  of  a  plaintiff,  amounting  to 
a  want  of  ordinary  care,  as,  concurring  or  cooperating  with  the  negli- 
gent act  of  the  defendant,  is  a  proximate  cause  or  occasion  of  the 
injury  complained  of."  Beach,  Cont.  Neg.  [2  ed.]  sect.  7.  The  defi- 
nition given  by  Shearman  &  Redfield  in  their  work  on  Negligence 
(sect.  61)  is  in  substance  and  effect  the  same. 

If  the  negligence  of  either  plaintiff  or  defendant  is  the  sole  cause 
of  the  injury  there  could  be  no  contributory  negligence  in  the  case. 
The  question  for  the  jiuy  is  whether  the  plaintiff  could  "  by  the  exer- 
cise of  such  care  and  skill  as  he  was  bound  to  exercise,  have  avoided 
the  consequence  of  the  defendant's  negligence."  Lord  Blackburn, 
L.  R.  3  App.  Cas.  1207.  See,  also,  4  Am.  &  Eng.  Encyclopedia  of 
Law,  18  &  19.  It  is  clear  that  there  could  be  no  contributory  negli- 
gence unless  there  was  also  negligence  of  defendant  to  which  that  of 
plaintiff  could  contribute.  Unless  the  negligence  of  defendant  was 
the  proximate  cause  of  the  injury,  there  could  be  no  Uability.  Unless 
the  negligence  of  plaintiff  was  a  proximate  cause  of  the  injury,  his 
action,  on  the  ground  of  contributory  negligence,  would  not  be 
defeated. 

Testing  the  instruction  by  these  rules,  it  cannot  be  approved.  It 
tells  the  jury  that "  the  negligence  of  plaintiff,  and  not  that  of  defend- 
ant, must  be  the  proximate  or  inmiediate  cause  of  the  injury  to  excuse 
the  defendant  from  liability."  They  were  told  in  effect  that  this  re- 
sult would  follow  though  "  plaintiff  was  simply  guilty  of  negligence." 
The  jury  may  as  well  have  been  told  that  to  defeat  a  recovery  on  the 
plea  of  contributory  negligence,  it  was  necessary  to  find  that  the  negli- 
gence of  plaintiff  was  the  sole  proximate  cause  of  the  injury.  The 
instruction  ignored  entirely  conciuring  or  contributory  negligence  of 
both  parties,  which  is  one  essential  element  of  contributory  negligence. 
There  are  no  degrees  which  distinguish  the  negligence  made  necessary 
by  the  law  to  defeat  a  recovery.  And  negligence  which  is  proximate 
or  a  cause  of  the  injury  is  sufficient.  It  does  not  matter  that  the  con- 
curring and  cooperating  negligence  of  defendant  was  negligence,  per  se, 
such  as  the  violation  of  an  ordinance,  as  in  this  case,  or  statute  law. 

The  instruction  is  also  misleading  wherein  it  informs  the  jury  that 
in  order  for  defendant  to  establish  its  plea  of  contributory  negligence 
"  it  is  not  suflBcient  that  the  jury  may  believe  from  the  evidence  that 
plaintiff  was  simply  guilty  of  negligence,"  and  as  qualified  or  ex- 
plained, by  what  follows,  does  not  correctly  declare  the  law.  The 
negligence  to  defeat  a  recovery  must  be  a  proximate  cause  for  the 
injury,  but  need  not  be  the  sole  proximate  cause. 

As  the  evidence  on  the  issue  of  contributory  negligence  was  very 
clear,  we  think  the  errors  in  this  instruction  prejudicial  and  must 
cause  a  reversal.^  Judgment  reversed,  and  cause  remanded. 

^  Remainder  of  opinion  omitted. 

Start,  J.,  in  LaFlam  v.  Missisquoi  Pulp  Company,  74  Vt.  125.  143:  "  The  de- 
fendants, by  their  second  request,  asked  for  an  mstruction  that  it,  by  the  exercise 


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SECT.  VIII.]  GALENA,  Ac.  R.  CO.  V,  JACOBS  267 

Breese,  J.,  IN  GALENA,  Ac.  R.  Co.  v.  JACOBS 

(1858)  20  lUinais,  478,  496-497. 

[After  citing  decisions  in  other  jurisdictions.]  It  will  be  seen  from 
these  cases  that  the  question  of  liability  does  not  depend  absolutely  on 
the  absence  of  all  negligence  on  the  part  of  the  plaintiff,  but  upon  the 
relative  degree  of  care  or  want  of  care  as  manifested  by  both  parties; 
for  all  care  or  negligence  is  at  best  but  relative,  the  absence  of  the 
highest  possible  degree  of  care  showing  the  presence  of  some  negli- 
gence, slight  as  it  may  be.  The  true  doctrine,  therefore,  we  think,  is, 
that  in  proportion  to  the  negligence  of  the  defendant  should  be  meas- 
ured the  degree  of  care  required  of  the  plaintiflf;  that  is  to  say,  the 

of  ordinary  care  and  prudence  upon  the  part  of  the  plaintiff,  he  would  not  have 
been  injui^ed.  he  cannot  recover.  The  court  instructed  the  jury,  that,  if  the  plain- 
tiff's want  of  ordinary  care  or  his  negligence  contributed  in  any  material  deoee  to 
the  happening  of  the  accident,  he  is  not  entitled  to  recover,  even  though  the  de- 
fendants were  ne^igent.  This  was  in  accordance  with  the  rule  as  it  has  sometimes 
been  stated  by  this  court.  In  Magoon  v.  Boston  &  Maine  R.  R.  Co.,  67  Vt.  184, 
31  Atl.  156,  and  in  Hill  r.  New  Haven,  37  Vt.  507, 88  Am.  Dec.  613,  it  is  said  that, 
if  the  negligence  or  carelessness  of  the  person  injured  contributes  in  any  material 
degree  to  the  production  of  the  injury  complained  of,  he  cannot  recover;  but  in 
Reynolds  v.  Boston  &  Maine  R.  R.  Co..  64  Vt.  66, 24  Atl.  134, 33  Am.  St.  Rep.  908, 
the  holding  is  that,  if  the  negligence  of  the  plaintiff  contributes  in  the  least  degree 
to  the  accident,  there  can  be  no  recovery.  We  think  this  is  the  correct  rule,  and 
that  the  instruction  should  have  conformed  to  it.  The  use  of  the  word  *  material ' 
left  the  jury  at  liberty  to  consider  the  degree  of  the  plaintiff's  negligence,  which  is 
not  considered  permissible  in  jurisdictions  where  the  doctrine  of  contributory 
negligence  previuls.  To  allow  jurors  to  consider  so-called  degrees  of  negligence 
would,  in  effecty  nullifv  this  doctrine.    7  Am.  &  Eng.  Enc.  Law,  (2d  ed.)  379." 

**  Negligence  contributing  as  an  efficient  cause  of  injiuy  will  defeat  an  action 
therefor,  irrespective  of  the  quantum  of  negligence  of  the  respective  parties.''  Jag- 
gard,  J.,  in  O'Brien  v,  St.  Paul  City  R.  Co.,  98  Minn.  205,  207-208. 

"  An  effect  often  has  many  proximate,  and  many  remote^  causes.  If  the  negli- 
gence of  the  plaintiff  was  one  o!  the  proximate  causes  of  the  mjury.  —  if  it  directly 
contributed  to  the  imfortunate  result,  —  he  cannot  recover,  even  though  the  nedi- 
gence  of  the  defendant  also  contributed  to  it."  Sanborn,  J.,  in  Missouri  Pac.  K. 
Co.  V,  Moseley,  57  Fed.  921,  925. 

*'  While  purporting  to  give  a  Icjgal  definition  of  contributory  negligence,  this  in- 
struction demands  that  such  negligence  shall  be  foimd  the  sole  and  direct  cause  of 
the  accident  —  an  interpretation  at  war  with  the  term  *  contributory '  itself." 
Reybum,  J.,  in  Hanheide  v.  St.  Louis  Transit  Co.,  104  Mo.  App.  323,  330. 

*' .  .  .  if  it  appears  that  his  [plaintiff's]  negligence  has  contributed  as  an  efficient 
cause  to  the  injury  of  which  he  complains,  the  court  will  not  imdertake  to  balance 
the  negligence  of  the  respective  parties  for  the  purpose  of  determining  which  was 
most  at  fault.  The  law  recognizes  no  gradations  of  fault  in  such  case,  and  where 
both  parties  have  been  guilty  of  negligence,  as  a  general  rule,  there  can  oe  no  recov- 
ery. There  is  really  no  distinction  between  negligence  in  the  plaintiff  and  negli- 
gence in  the  defendJant,  except  that  the  negligence  of  the  former  is  called  *  contri- 
butory negligence.'  "  Whittle,  J.,  in  Riclmiond  Traction  Co.  v,  Martin's  Adm'r, 
102  Va.  209,  213. 

** .  .  ,  there  was  a  lack  of  ordinary  care  on  his  [the  deceased's]  part,  and  where 
this  occurs,  contributing  proximately  to  the  injury,  this  lack  will  prevent  a  re- 
covery, though  the  neglig^ce  of  the  other  party  may  have  much  more  contributed 
thereto."  Beard,  C.  J.,  in  Memphis  Gas  &  Electnc  Co.  v,  Simpson,  (Tenn.)  109 
S.  W.  1165,  1158. 

American  Woolen  Co.  v.  Stewart,  (C.  C.  A.)  217  Fed.  1 ;  Birmmgham  R.  Co. 
V.  Bynum,  139  Ala.  389;  St.  Louis*  R.  Co.  v.  Musgrove,  113  Ark.  599;  Denver 


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268  GALENA,   Ac.   R.   CO.   V.  JACOBS  [CHAP.  U. 

more  gross  the  negligence  manifested  by  the  defendant,  the  less  degree 
of  care  will  be  required  of  the  plaintiff  to  entitle  him  to  recover.  .  .  . 
We  say,  then,  that  in  this,  as  in  all  like  cases,  the  degree  of  negli- 
gence must  be  measured  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.^ 

R.  Co.  V,  Maydole,  33  Col.  150;  Robinson  v,  Huber,  (Del.)  63  Atl.  873; 
O'Keefe  v.  Chicago  R.  Co.,  32  la.  467;  Pennsylvania  R.  Co.  v.  Roney,  89  Ind.  453; 
Atchison  R.  Co.  v.  Henry,  57  Kan.  154;  Mann  v.  City,  154  Ky.  154;  Marble  v. 
RofiB,  124  Mass.  44;  Mynning  v.  Detroit  R.  Co.,  59  Mich.  257;  Hurt  v,  St.  Louis 
R.  Co.,  94  Mo.  255;  Village  v,  Holliday,  50  Neb.  229;  Pennsylvania  R.  Co.  v, 
Righter,  42  N.  J.  Law,  180;  St.  Louis  R.  Co.  v.  Elsing.  37  Okl.  333;  Weaver  v, 
Pennsjyrlvania  R.  Co.,  212  Pa.  St.  632:  Weir  v.  Haverford  Electric  Co.,  221  Pa.  St. 
611;  McLean  v,  Atlantic  R.  Co.,  81  S.  C.  100;  McDonald  v.  International  R.  Co., 
86  Tex.  1;  Hazen  v,  Rutland  R.  Co.,  89  Vt.  94;  Chesapeake  R.  Co.  v.  Lee,  84  Va. 
642;  Franklin  v,  Engel,  34  Wash.  480;  Tesch  v.  Milwaukee  R.  Co.,  108  Wis.  593 
Accord, 

^  "  The  doctrine  of  comparative  negligence  no  longer  exists  in  this  state.'* 
Wilkin,  J.,  in  City  v.  Holcomb,  205  111.  643,  646. 

"  The  intrinsic  diflScultjr  of  the  subject  of  contributory  negligence  has  led  to 
three  distinct  lines  of  decisions.  In  En^and  and  a  majority  of  ^e  States  of  the 
Union,  the  negligence  of  the  plaintiff  which  contributes  to  the  in^iuy  is  held  to  be 
an  absolute  bar  to  the  action.  In  the  States  of  Illinois  and  Geor^a  the  doctrine  of 
comparative  negligence  has  been  adopted,  that  is,  if  on  comparmg  the  negligence 
of  the  plaintiff  with  that  of  the  defendant,  the  former  is  found  to  be  slight  and  the 
latter  gross,  the  plaintiff  may  recover.  In  this  State  we  hold  that  although  the 
injured  party  may  contribute  to  the  injury  by  his  own  carelessness  or  wrongful 
conduct,  yet  if  the  act  or  negligence  of  the  party  inflicting  the  injury  was  the  proxi- 
mate cause  of  the  injury,  the  latter  will  be  liable  in  damages,  the  negligence  or 
wrongful  conduct  of  the  party  injured  being  taken  into  consideration,  oy  way  of 
mitigation,  in  estimating  the  damages.  In  other  words,  if  defendant  was  guilty  of 
a  wrong  by  which  plaintiff  is  injur^,  and  plaintiff  was  also  in  some  degree  negh- 
pent  or  contributed  to  the  injury,  it  should  go  in  mitigation  of  dama^^  but  cannot 
justify  or  excuse  the  wrong.  Kast  Tennessee,  Virginia  &  Georgia  Railroad  Com- 
pany V,  Fain,  12  Lea,  35.  At  the  same  time  we  hold  that  if  a  party  by  his  own 
^ss  negligence  bring  an  injury  upon  himself,  or  proximately  contribute  to  such 
injury,  he  cannot  recover;  neither  can  he  recover  in  cases  of  mutual  neghgence 
where  both  parties  are  equally  blamable.  Id.  The  principal  difference  between 
our  rule  and  the  English  rule,  as  modified  by  the  more  recent  decisions,  is  in  allow- 
ing the  damages  to  be  mitigated  by  the  conduct  of  the  injured  party.  In  this  re- 
spect our  rule  meets  the  objection  which  Mr.  Thompson,  m  his  notes  on  contribu- 
tory negligence,  makes  to  the  construction  put  by  some  of  the  courts  on  the  English 
rule,  or  to  the  application  of  the  rule  in  particular  cases.  *  It  is,'  he  says,  *  nothing 
more  than  a  declaration  that  although  both  parties  have  been  guilty  of  negligence 
contributing  to  the  injury,  the  party  who  suffered  the  damage  is  to  be  completely 
exonerated,  and  the  other  party  is  not  to  be  exonerated  to  any  extent;  the  former 
is  to  recover  of  the  latter  witliout  any  abatement  on  account  of  his  own  share  of  the 
fault,  tdl  the  damages  which  he  has  suffered.*  *  This  is,'  he  adds,  *  manifest  injus- 
tice; and  yet  it  is  practiced  every  day  in  the  courts  of  England  and  in  those  of 
nearly  every  State  in  the  Union.'  2  Thompson  on  Neg.  1155.  Our  rule,  moreover, 
is  merely  an  adaptation  of  the  law  which  prevails  in  civil  actions  for  assault  and 
battery,  where  the  conduct  of  the  plaintiff  in  the  way  of  provocation  is  always 
admissible  in  evidence  to  mitigate  the  damages.  Jackaway  v,  Dula,  7  Yer.  82; 
Chambers  v.  Porter,  5  Cold.  273,  280;  Suth.  on  Dam.  745."  Cooper,  J.,  m  Louis- 
ville R.  Co.  v.  Fleming,  14  Lea,  (Tenn.)  128,  135.  But  see  Southern  R.  Co.  v, 
Pugh,  97  Tenn.  624. 


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SECT.  VIII.]  THE  MAX  MORRIS  269 

United  States  Compiled  Statutes,  1913,  §  8659. 

In  all  actions  hereafter  brought  against  any  such  common  carrier  ^ 
by  railroad  imder  or  by  virtue  of  any  of  the  provisions  of  this  Act  to 
recover  damages  for  personal  injuries  to  an  employee,  or  where  such  in- 
juries have  resulted  in  his  death,  the  fact  that  the  employee  may  have 
been  guilty  of  contributory  negligence  shall  not  bar  a  recovery,  but 
the- damages  shall  be  diminished  by  the  jury  in  proportion  to  the 
amount  of  negligence  attributable  to  such  employee:  Provided,  That 
no  such  employee  who  may  be  injured  or  killed  shall  be  held  to  have 
been  guilty  of  contributory  negligence  in  any  case  where  the  violation 
by  such  common  carrier  of  any  statute  enacted  for  the  safety  of  em- 
ployees contributed  to  the  injury  or  death  of  such  employee.*  (Act 
of  April  22,  1908,  c.  149,  §  3,  35  Stat.  L.  66.) 

England,  Workmen's  Compensation  Act,  1906,  §  1  (c.) 

If  it  is  proved  that  the  injury  to  a  workman  is  attributable  to  the 
serious  and  wilful  misconduct  of  that  workman,  any  compensation 
claimed  in  respect  of  that  injury  shall,  unless  the  injury  results  in 
death  or  serious  and  permanent  disablement,  be  disallowed.* 


THE  MAX  MORRIS 

Supreme  Court  op  the  United  States,  Novebiber  17,  1890. 

Reported  in  137  United  States  Reporter  1. 

The  case,  as  stated  by  the  court,  was  as  follows:  — 

This  was  a  suit  in  Admiralty,  brought  in  the  District  Court  of  the 

United  States  for  the  Southern  District  of  New  York,  by  Patrick 

Cimy  against  the  steamer  Max  Morris.* 
The  libel  alleged  that  on  the  27th  of  October,  1884,  the  libellant 

was  lawfully  on  board  of  that  vessel,  being  employed  to  load  coal  upon 

*  This  refers  to  §  S657:  "  Every  common  carrier  by  railroad  while  engaging  in 
commerce  between  any  of  the  several  States  or  Territories,  or  between  the  District 
of  Columbia  and  any  of  the  States  or  Territories,  or  between  the  District  of  Ck>ium- 
bia  or  any  of  the  States  or  Territories  and  any  foreign  nation  or  nations.  ,  ,    " 

*  See  also  Florida,  Comp.  L.,  1914,  §  3149;  Georgia.  Park's  Annotated  Code, 
1914,  55  2781  (2332),  2783;  Iowa,  Supplement  to  Code,  1913.  §2071:  Kansas, 
Laws  of  1911,  ch.  239,  §  2:  Maine,  Pub.  L.  1910,  c.  258,  §  4;  Mississippi,  Laws  of 

,1910,  c.  135;  Nebraska,  Rev.  St.  1915,  §§6054,  7892;  Nevada,  Rev.  L.  §5651 
(employees  m  mines);  Ohio,  Page  &  Adams,  Ann.  Gen.  Code,  §§6245-1,  9018; 
South  Dakota,  Laws  of  1907,  c.  219,  §  2;  Texas,  McEachin's  Civ.  St.  art.  6649; 
Virginia,  Acte  of  1916,  ch.  444,  J  2;  Wisconsin,  Stat.  1915,  ch.  87.  §  1816  (3). 

Compare  Arkansas,  Kirby's  Dig.  §6654;  Illmois,  R.  S.  c.  114,  §  231;  Indiana, 
Bums*  Ann.  St.  §  5277  c;  Missouri,  R.  S.  (1909)  §§  3164,  3172. 

*  American  Workmen's  Compensation  Acts  often  provide  that  if  the  employer 
does  not  elect  to  act  under  the  statute,  he  shall  be  liable  to  an  action  at  law  by  the 
injured  employee  in  which  contributory  negligence  shall  be  no  defence.  See,  for 
example,  Ohio,  Pa^  &  Adams,  Annotated  Uen.  Code,  §  1465-60. 

<  Portions  of  opinion  omitted.    Argument  for  appdlant  omitted. 


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270  THE  MAX  MORRIS  [CHAP.  U. 

her  by  the  stevedore  who  had  the  contract  for  loading  the  coal;  that, 
on  that  day,  the  Ubellant,  while  on  the  vessel,  fell  from  her  bridge  to 
the  deck,  through  the  negUgence  of  those  in  charge  of  her,  in  having 
removed  from  the  bridge  the  ladder  usually  leading  therefrom  to  the 
deck,  and  in  leaving  open,  and  failing  to  guard,  the  aperture  thus  left 
in  the  rail  on  the  bridge;  that  the  Ubellant  was  not  guilty  of  negli- 
gence; and  that  he  was  injured  by  the  fall  and  incapacitated  from 
labor.    He  claimed  $3000  damages. 

The  answer  alleged  negligence  on  the  part  of  the  Ubellant  and  an 
absence  of  negligence  on  the  part  of  the  claimant. 

The  District  Court,  held  by  Judge  Brown,  entered  a  decree  in  favor 
of  the  Ubellant  for  $150  damages,  and  $32.33  as  one-half  of  the  Ubel- 
lant's  costs,  less  $47.06  as  one-half  of  the  claimant's  costs,  making 
the  total  award  to  the  Ubellant  $135.27.  The  opinion  of  the  District 
Judge  is  reported  in  24  Fed.  Rep.  860.  It  appeared  from  that  that 
the  judge  charged  to  the  UbeUant's  own  fault  all  his  pain  and  suffering 
and  all  mere  consequential  damages,  and  charged  the  vessel  with  his 
wages,  at  $2  per  day,  for  seventy-five  working  days,  making  $150. 

The  claimant  appealed  to  the  Circuit  Court,  on  the  ground  that  the 
Ubel  should  have  been  dismissed.  It  was  stipulated  between  the  par- 
ties that  the  facts  as  stated  in  the  opinion  of  the  District  Judge  should 
be  taken  as  the  facts  proved  in  the  case,  and  that  the  appeal  should  be 
heard  on  those  facts.  Judge  Wallace,  who  heard  the  case  on  appeal 
in  the  Circuit  Court,  deUvered  an  opinion,  in  August,  1886,  which  is 
reported  in  28  Fed.  Rep.  881,  affirming  the  decree  of  the  District 
Court.  No  decree  was  made  on  that  decision,  but  the  case  came  up 
again  in  the  Circuit  Court  on  the  14th  of  March,  1887,  the  Coiut  being 
held  by  Mr.  Justice  Blatchford  and  Judge  WaUace,  when  a  certificate 
was  signed  by  them  stating  as  foUows:  "  The  UbeUant  was  a  long- 
shoreman, a  resident  of  the  city  and  county  of  New  York,  and  was, 
at  the  time  when  the  said  accident  occurred,  employed  as  longshore- 
man, by  the  hour,  by  the  stevedore  having  the  contract  to  load  coal 
on  board  the  steamship  Max  Morris.  The  injuries  to  the  Ubellant 
were  occasioned  by  his  falling  through  an  unguarded  opening  in  the 
rail  on  the  after-end  of  the  lower  bridge.  The  Max  Morris^  was  a 
British  steamship,  haiUng  from  Liverpool,  England.  The  defendant 
contends,  as  a  matter  of  defence  to  said  Ubel,  that  the  injiu*ies  com- 
plained of  by  UbeUant  were  caused  by  his  own  negligence.  The  Ubel- 
lant contends  that  the  injuries  were  occasioned  entirely  through  the 
fault  of  the  vessel  and  her  oflScers.  The  Comt  finds,  as  a  matter  of 
fact,  that  the  injuries  to  the  Ubellant  were  occasioned  partly  through 
his  own  negUgence  and  partly  through  the  negligence  of  the  oflScers 
of  the  vessel.  It  now  occurs,  as  a  question  of  law,  whether  the  Ubel- 
lant, under  the  above  facts,  is  entitled  to  a  decree  for  divided  damages. 
On  this  question  the  opinions  of  the  judges  are  in  conflict."  On 
motion  of  the  claimant,  the  question  in  difference  was  certified  to  this 


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SECT.  Vm.]  THE  MAX  MORRIS  271 

Court,  and  a  decree  was  entered  by  the  Circuit  Court  affinning  the 
decree  of  the  District  Court  and  awarding  to  the  libellant  a  recovery 
of  $135.27,  with  interest  from  the  date  of  the  decree  of  the  District 
Comt,  and  $26.30  as  the  Ubellant's  costs  in  the  Circuit  Coiut,  making 
a  total  of  $172.  From  that  decree  the  claimant  has  appealed  to  this 
Court.    Rev.  Stat.  §§  652,  693;  Dow  v.  Johnson,  100  U.  S.  158. 

Mb.  Justice  Blatchford,  aifter  stating  the  case  as  above  reported, 
delivered  the  opinion  of  the  Court. 

The  question  discussed  in  the  opinions  of  Judge  Brown  and  Judge 
Wallace,  and  presented  to  us  for  decision,  is  whether  the  libellant  was 
debarred  from  the  recovery  of  any  sum  of  money,  by  reason  of  the 
fact  that  his  own  negligence  contributed  to  the  accident,  although 
there  was  negligence  also  in  the  officers  of  the  vessel.  The  question 
presented  by  the  certificate  is  really  that  question,  although  stated 
in  the  certificate  to  be  whether  the  libellant,  under  the  facts  presented, 
was  entitled  to  a  decree  "  for  divided  damages."  It  appears  from 
the  opinion  of  the  District  Judge  that  he  imposed  upon  the  claimant 
"  some  part  of  the  damage  "  which  his  conciurent  negligence  occa- 
sioned, while  it  does  not  appear  from  the  record  that  the  award  of  the 
$150  was  the  result  of  an  equal  division  of  the  damages  suflFered  by 
the  Ubellant,  or  a  giving  to  him  of  exactly  one-half,  or  of  more  or  less 
than  one-half,  of  such  damages. 

The  particular  question  before  us  has  never  been  authoritatively 
passed  upon  by  this  Court,  and  is,  as  stated  by  the  District  Judge  in 
his  opinion,  whether,  in  a  Court  of  admiralty,  in  a  case  like  the  pres- 
ent, where  personal  injuries  to  the  libellant  arose  from  his  negligence 
concurring  with  that  of  the  vessel,  any  damages  can  be  awarded,  or 
whether  the  libel  must  be  dismissed,  according  to  the  rule  in  common- 
law  cases. 

The  doctrine  of  an  equal  division  of  damages  in  admiralty,  in  the 
case  of  a  collision  between  two  vessels,  where  both  are  guilty  of  fault 
contributing  to  the  collision,  had  long  been  the  rule  in  England,  but 
was  first  established  by  this  Court  in  the  case  of  The  Schooner  Cath- 
erine V.  Dickinson,  17  How.  170,  and  has  been  applied  by  it  to  cases 
where,  both  vessels  being  in  fault,  only  one  of  them  was  injured,  as 
well  as  to  cases  where  both  were  injured,  the  injured  vessel,  in  the  first 
case,  recoveriAg  only  one-half  of  its  damages,  and,  in  the  second  case, 
the  damages  suflFered  by  the  two  vessels  being  added  together  and 
equaUy  divided,  and  the  vessel  whose  damages  exceeded  such  one-half 
recovering  the  excess  against  the  other  vessel.  In  the  case  of  The 
Schooner  Catherine  v.  Dickinson,  supra,  both  vessels  being  held  in 
fault  for  the  collision,  it  was  said  by  the  Court,  speaking  by  Mr.  Jus- 
tice Nelson,  p.  177,  that  the  well-settled  rule  in  the  English  admiralty 
was  "  to  divide  the  loss,"  and  that  "  under  the  circumstances  usually 
attending  these  disasters  '*  the  Court  thought  "  the  rule  dividing  the 
loss  the  most  just  and  equitable,  and  as  best  tending  to  induce  care  and 
vigilance  on  both  sides,  in  the  navigation.*' 


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272  THE  MAX  MORRIS  [CHAP.  IL 

[In  Atlee  v.  Packet  Co.,  21  Wallace,  389,  p.  396,  Miller,  J.,  said:] 
"  But  the  plaintiflF  has  elected  to  bring  his  9uit  in  an  admiralty  Court, 
which  has  jurisdiction  of  the  case,  notwithstanding  the  concurrent 
right  to  sue  at  law.  In  this  Court  the  course  of  proceeding  is  in  many 
respects  different  and  the  rules  of  decision  are  diflferent.  The  mode 
of  pleading  is  different,  the  proceeding  more  summary  and  informal, 
and  neither  party  has  a  right  to  trial  by  jury.  An  important  diflfer- 
ence  as  regards  this  case  is  the  rule  for  estimating  the  damages.  In 
the  common-law  Court  the  defendant  must  pay  all  the  damages  or 
none.  If  there  has  been  on  the  part  of  the  plaintiffs  such  carelessness 
or  want  of  skill  as  the  common  law  would  esteem  to  be  contributory 
negligence,  they  can  recover  nothing.  By  the  rule  of  the  admiralty 
Court,  where  there  has  been  such  contributory  negligence,  or,  in  other 
words,  when  both  have  been  in  fault,  the  entire  damages  resulting 
from  the  collision  must  be  equally  divided  between  the  parties.  This 
rule  of  the  admiralty  conmiends  itself  quite  as  favorably  in  its  in- 
fluence in  securing  practical  justice  as  the  other;  and  the  plaintiff 
who  has  the  selection  of  the  forum  in  which  he  will  litigate  cannot 
complain  of  the  rule  of  that  forum.'*  This  Court,  therefore,  treated 
the  case  as  if  it  had  been  one  of  a  collision  between  two  vessels. 

Some  of  the  cases  referred  to  show  that  this  Court  has  extended  the 
rule  of  the  division  of  damages  to  claims  other  than  those  for  damages 

to  the  vessels  which  were  in  fault  in  a  collision. 

•  •••  •••• 

The  rule  of  the  equal  apportionment  of  the  loss  where  both  parties 
were  in  fault  would  seem  to  have  been  founded  upon  the  difliculty  of 
determining,  in  such  cases,  the  degree  of  negligence  in  the  one  and 
the  other.  It  is  said  by  Cleirac  (Uset  Coutumes  de  la  Mer,  p.  68)  that 
such  rule  of  division  is  a  rustic  sort  of  determination,  and  such  as 
arbiters  and  amicable  compromisers  of  disputes  conunonly  follow, 
where  they  cannot  discover  the  motives  of  tie  parties,  or  when  they 
see  faults  on  both  sides. 

As  to  the  particular  question  now  presented  for  decision,  there  has 

been  a  conflict  of  opinion  in  the  lower  Courts  of  the  United  States. 

•  ••••••• 

All  these  were  cases  in  admiralty,  and  were  not  cases  of  collision 
between  two  vessels.  They  show  an  amelioration  of  the  common-law 
rule,  and  an  extension  of  the  admiralty  rule  in  a  direction  which  we 
think  is  manifestly  just  and  proper.  Contributory  negligence,  in  a 
case  Uke  the  present,  should  not  wholly  bar  recovery.  There  would 
have  been  no  injury  to  the  libellant  but  for  the  fault  of  the  vessel; 
and  while,  on  the  one  hand,  the  Court  ought  not  to  give  him  full  com- 
pensation for  his  injury,  where  he  himself  was  partly  in  fault,  it  ought 
not,  on  the  other  hand,  to  be  restrained  from  saying  that  the  fact  of 
his  negligence  should  not  deprive  him  of  all  recovery  of  damages.  As 
stated  by  the  District  Judge  in  his  opinion  in  the  present  case,  the 
more  equal  distribution  of  justice,  the  dictates  of  humanity,  the  safety 


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SECT.  Vni.]  THE  MAX  MOllRIS  273 

of  life  and  limb  and  the  public  good,  will  be  best  promoted  by  holding 
vessels  liable  to  bear  some  part  of  the  actual  pecimiary  loss  sustained 
by  the  Ubellant,  in  a  case  like  the  present,  where  their  fault  is  clear, 
provided  the  libellant's  fault,  though  evident,  is  neither  wilful,  nor, 
gross,  nor  inexcusable,  and  where  the  other  circumstances  present  a 
strong  case  for  his  relief.  We  think  this  rule  is  applicable  to  all  like 
cases  of  marine  tort  founded  upon  negligence  and  prosecuted  in  ad- 
miralty, as  in  harmony  with  the  rule  for  the  division  of  damages  in 
cases  of  collision.  The  mere  fact  of  the  negUgence  of  the  Ubellant  as 
partly  occasioning  the  injuries  to  him,  when  they  also  occiured  partly 
through  the  negligence  of  the  oflScers  of  the  vessel,  does  not  debar  him 
entirely  from  a  recovery. 

The  necessary  conclusion  is,  that  the  question  whether  the  Ubellant, 
upon  the  facts  found,  is  entitled  to  a  decree  for  divided  damages,  must 
be  answered  in  the  aflSrmative,  in  accordance  with  the  judgment 
below.  This  being  the  only  question  certified,  and  the  amount  in  dis- 
pute being  insuflScient  to  give  this  Court  jurisdiction  of  the  whole 
case,  our  jiuisdiction  is  limited  to  reviewing  this  question.  Chicago 
Union  Bank  v.  Kansas  City  Bank,  136  U.  S.  223.  Whether,  in  a  case 
like  this,  the  decree  should  be  for  exactly  one-half  of  the  damages  sus- 
tained, or  might,  in  the  discretion  of  the  Court,  be  for  a  greater  or  less 
proportion  of  such  damages,  is  a  question  not  presented  for  om* 
determination  upon  this  record,  and  we  express  no  opinion  upon  it. 

Decree  affirmed.^ 

Scott,  Collisions  atSea  where  both  Ships  are  in  Faui/t,  13  LawQuar- 
terly  Review,  17. 

If  minor  or  collateral  differences  be  disregarded,  there  are  amongst  civilized 
nations  four  different  ways  of  deaUng  with  collision  damage  where  both  ships 
are  in  fault. 

1.  To  mass  the  total  damage  and  divide  it  equally  between  the  two  ships.' 

This  is  the  British  rule,  and  has  been  the  American  rule.  .  .  . 

>  Planiol,  TRArrf  ^l^mentairb  de  DBorr  ctvil  (6  ed.)  II,  {  899:  "  It  fre- 
quently happens  that  one  who  suffers  damage  through  the  fault  of  another  is  not 
himself  exempt  from  aU  fault;  he  has  concuired  in  the  accident  and  shares  respon- 
sibility therefor  with  the  other.  In  this  case  there  is  what  we  call  in  practice /au/e 
commune.  This  conmiunity  of  fault  diminishes  the  responsibility  of  the  principal 
author  of  damage  who  now  only  owes  a  partial  reparation.'' 

German  Cfvil  Code,  {  254:  *'  If  any  fault  of  the  injured  party  has  contributed 
in  causing  the  injury,  the  obligation  to  compensate  the  injured  party  and  the 
Extent  of  the  compensation  to  be  made  depends  upon  the  circumstances,  especially 
upon  how  far  the  injury  has  been  caused  chiefly  by  the  one  or  the  other  party. 

''  This  applies  also  even  if  the  fault  of  the  mjiu^  party  consisted  only  in  an 
omission  to  call  the  attention  of  the  debtor  to  the  danger  of  an  imusually  serious 
injury  which  the  debtor  neither  knew  nor  ought  to  have  known,  or  in  an  omission 
to  avert  or  mitigate  the  injury.  .  .  ." 

[The  word  "  debtor  "  is  used  here  in  the  Roman  sense,  meaning  the  person 
bound  in  any  sort  of  obligation  —  here  the  delictual  obligation  to  make  reparation 
for  an  iniury  due  to  fault.) 

*  See  The  Drumlanrig,  [1911]  A.  C.  16;  Steamship  Devonshire  v.  Barge  Leslie, 
[1912]  A.  C.  634;  St.  Louis  Packet  Co.  v.  Miuray,  144  Ky.  815.  But  compare 
Murphy  v.  Diamond,  3  La.  Ann.  441;  New  York  Towboat  Co.  v.  New  York  R. 
Co.,  148  N.  Y.  574;  Union  Steamship  Co.  v.  Nottingham,  17  Grat.  115. 


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274  BUTTERTIELD  V.  FORRESTER  [CHAP.  II. 

2.  To  leave  the  loss  where  it  falls. 

This  is  the  rule  in  Germany,  Holland,  Italy,  Spain,  and  those  of  the  South 
American  States  which  have  derived  their  law  from  Spain,  and  was  the  rule  in 
Great  Britain  in  our  Courts  of  Conmion  Law  previous  to  the  Judicature  Act, 
1873. 

3.  To  divide  the  loss  proportionally  to  the  value  of  the  vessels  in  collision. 
A  kind  of  general  average  principle  obtaining  in  Turkey  and  Egypt. 

4.  To  divide  the  loss  proportionally  to  the  faults  of  the  two  vessels. 
This  is  the  rule  of  France,  Belgium,  Norway,  Sweden,  Denmark,  Portugal, 

Greece,  and  Roumania. 

See  Franck,  Collisions  at  Sea  in  Relation  to  Intematibnal  Maritime  Law,  12 
Law  Quarterly  Review,  260. 

England,  Maiutime  Conventions  act  (1911),  §  1. 

1.   (1)  Where,  by  the  fault  of  two  or  more  vessels,  damage  or  loss  is  caused 
to  one  or  more  of  those  vessels,  to  their  cargoes  or  freight,  or  to  any  property 
on  board,  the  liability  to  make  good  the  damage  or  loss  shall  be  in  proportion 
to  the  degree  in  which  each  vessel  was  in  fault: 
Provided  that  — 

(a)  if,  having  regard  to  all  the  circumstances  of  the  case,  it  is  not  pos- 
sible to  establish  different  degrees  of  fault,  the  liability  shall  be  apportioned 
equally;  and 

(b)  nothing  in  this  section  shall  operate  so  as  to  render  any  vessel  liable 
for  any  loss  or  damage  to  which  her  fault  has  not  contributed.  J^ 


BUTTERFIELD  v.  FORRESTER 

In  the  Kino's  Bench,  April  22,  1809.  ^ 

Reported  in  11  East,  60. 

This  was  an  action  on  the  case  for  obstructing  a  highway,  by  means 
of  which  obstruction  the  plaintiff,  who  was  riding  along  the  road,  was 
thrown  down  with  his  horse,  and  injured,  &c.  At  the  trial  before 
Bayley,  J.,  at  Derby,  it  appeared  that  the  defendant,  for  the  purpose 
of  making  some  repairs  to  his  house,  which  was  close  by  the  roadside 
at  one  end  of  the  town,  had  put  up  a  pole  across  this  part  of  the  road, 
a  free  passage  being  left  by  another  branch  or  street  in  the  same  di- 
rection. That  the  plaintiff  left  a  public  house  not  far  distant  from 
the  place  in  question  at  8  o'clock  in  the  evening  in  August,  when  they 
were  just  beginning  to  light  candles,  but  while  there  was  light  enough 
left  to  discern  the  obstruction  at  one  hundred  yards  distance;  and  the 
witness  who  proved  this,  said  that  if  the  plaintiff  had  not  been  riding 
very  hard  he  might  have  observed  and  avoided  it;  the  plaintiff,  how- 
ever, who  was  riding  violently,  did  not  observe  it,  but  rode  against  it, 
and  fell  with  his  horse  and  was  much  hurt  in  consequence  of  the  acci- 
dent; and  there  was  no  evidence  of  his  being  intoxicated  at  the  time. 
On  this  evidence  Bayley,  J.,  directed  the  jury,  that  if  a  person  riding 
with  reasonable  and  ordinary  care  could  have  seen  and  avoided  the  ob- 
struction; and  if  they  were  satisfied  that  the  plaintiff  was  riding  along 


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SECT.  Vra.]  DAVTES  V.  MANN  275 

the  street  extremely  hard,  and  without  ordinaiy  care,  they  should  find 
a  verdict  for  the  defendant,  which  they  accordingly  did. 

Vaughan,  Serjt.y  now  objected  to  this  direction,  on  moving  for  a  new 
trial;  and  referred  to  Buller's  Ni.  Pri.  26,*  where  the  rule  is  laid  down, 
that  "  if  a  man  lay  logs  of  wood  across  a  highway,  though  a  person 
may  with  care  ride  safely  by,  yet  if  by  means  thereof  my  horse  stumble 
and  fling  me,  I  may  bring  an  action." 

Bayley,  J.  The  plaintiff  was  proveji  to  be  riding  as  fast  as  his 
horse  could  go,  and  this  was  through  the^streets  of  Derby.  If  he  had 
used  ordinary  care  he  must  have  seen  the  obstruction;  so  that  the 
accident  appeared  to  happen  entirely  froft^  his  own  fault. 

Lord  Ellenborough,  C.  J.  A  party  is  not  to  cast  himself  upon  an 
obstruction  which  had  been  made  by  the  fault  of  another,  and  avail 
himself  of  it,  if  he  do  not  himself  use  common  and  ordinary  caution 
to  be  in  the  right.  In  cases  of  persons  riding  upon  what  is  considered 
to  be  the  wrong  side  of  the  road,  that  would  not  authorize  another 
purposely  to  ride  up  against  them.  One  person  being  in  fault  will  not 
dispense  with  another's  using  ordinary  care  for  himself.  Two  things 
must  concm*  to  support  this  action :  an  obstruction  in  the  road  by  the 
fault  of  the  defendant,  and  no  want  of  ordinary  care  to  avoid  it  on  the 
part  of  the  plaintiff.  RiUe  refused, 

DAVIES  V.  MANN  ^ 

In  the  Exchequer,  November  4, 1842. 
Reported  in  10  Meeaon  &  Welsby,  646. 

Case  for  negligence.  The  declaration  stated,  that  the  plaintiff 
theretofore,  and  at  the  time  of  the  committing  of  the  grievance  there- 
inafter mentioned,  to  wit,  on,  Ac,  was  lawfully  possessed  of  a  certain 
donkey,  which  said  donkey  of  the  plaintiff  was  then  lawfully  in  a  cer- 
tain highway,  and  the  defendant  was  then  possessed  of  a  certaih  wagon 
and  of  certain  horses  drawing  the  same,  which  said  wagon  and  horses' 
of  the  defendant  were  then  under  the  care,  government,  and  (Action 
of  a  certain  then  servant  of  tha  defendant,  in  and  along  the  said  high- 
way; nevertheless  the  defendant,  by  his  said  servant,  so  carelessly, 
negligently,  imskilfully,  and  improperly  governed  and  directed  his 
said  wagon  and  horses,  that  by  and  through  the  carelessness,  negli- 
gence, unskilfulness,  and  improper  conduct  of  the  defendant,  by  his 
said  servant,  the  said  wagon  and  horses  of  the  defendant  then  ran  and 
struck  with  great  violence  against  the  said  donkey  of  the  plaintiff,  and 
thereby  then  wounded,  crushed,  and  killed  the  same,  Ac. 

The  defendant  pleaded  not  guilty. 

At  the  trial,  before  Erskine,  J.,  at  the  last  Summer  Assizes  for  the 
county  of  Worcester,  it  appeared  that  the  plaintiff,  having  fettered  the 

*  The  book  cites  Carth.  194  and  451  in  the  margin,  which  references  do  not 
bear  on  the  point  here  in  question.  —  Reporter's  note. 


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276  DAVIES  V.  MANN  [CHAP.  II. 

fore-feet  of  an  ass  belonging  to  him,  turned  it  into  a  public  highway, 
and  at  the  time  in  question  the  ass  was  grazing  on  the  oflf  side  of  a 
road  about  eight  yards  wide,  when  the  defendant's  wagon,  with  a  team 
of  three  horses,  coining  down  a  slight  descent,  at  what  the  witness 
tenned  a  smartish  pace,  ran  against  the  ass,  knocked  it  down,  and  the 
wheels  passing  over  it,  it  died  soon  after.  The  ass  was  fettered  at 
the  time,  and  it  was  proved  that  the  driver  of  the  wagon  was  some 
little  distance  behind  the  horses.  The  learned  judge  told  the  jury, 
that  though  the  act  of  the  plaintiff,  in  leaving  the  donkey  on  the  high- 
way so  fettered  as  to  prevent  his  getting  out  of  the  way  of  carriages 
travelling  along  it,  might  be  illegal,  still,  if  the  proximate  cause  of 
the  injury  was  attributable  to  the  want  of  proper  conduct  on  the  part 
of  the  driver  of  the  wagon,  the  action  was  maintainable  against  the 
defendant;  and  his  Lordship  directed  them,  if  they  thought  that  the 
accident  might  have  been  avoided  by  the  exercise  of  ordinary  care  on 
the  part  jDf  the  driver,  to  find  for  the  plaintifiF.  The  jury  found  their 
verdict  for  the  plaintiff,  damages  40». 

Godson  now  moved  for  a  new  trial,  on  the  ground  of  misdirection. 
The  act  of  the  plaintiff  in  turning  the  donkey  into  the  public  highway 
was  an  illegal  one,  and,  as  the  injury  arose  principally  from  that  act, 
the  plaintiff  was  not  entitled  to  compensation  for  that  injury  which, 
but  for  his  own  unlawful  act,  would  never  have  occurred.  [Parke,  B. 
The  declaration  states  that  the  ass  was  lawfully  on  the  highway,  and 
the  defendant  has  not  traversed  that  allegation;  therefore  it  must  be 
taken  to  be  admitted.]  The  principle  of  law,  as  deducible  from  the 
cases  is,  that  where  an  accident  is  the  result  of  faults  on  both  sides, 
neither  party  can  maintain  an  action.  Thus,  in  Butterfield  v.  Forres- 
ter, 11  East,  60,  it  was  held  that  one  who  is  injured  by  an  obstruction 
on  a  highway,  against  which  he  fell,  cannot  maintain  an  action,  if  it 
appear  that  he  was  riding  with  great  violence  and  want  of  ordinary 
care,  without  which  he  might  have  seen  and  avoided  the  obstruction. 
So,  in  Vennall  v.  Gamer,  1  C.  &  M.  21,  in  case  for  running  down  a 
ship,  it  was  held,  that  neither  party  can  recover  when  both  are  in  the 
wrong;  and  Bayley,  B.,  there  says,  "  I  quite  agree  that  if  the  mis- 
chief be  the  result  of  the  combined  negligence  of  the  two,  they  must 
both  remain  in  statu  quoy  and  neither  party  can  recover  against  the 
other."  Here  the  plaintiff,  by  fettering  the  donkey,  had  prevented 
him  from  removing  himself  out  of  the  way  of  accident;  had  his  fore- 
feet been  free  no  accident  would  probably  have  happened.  Pluckwell 
V.  Wilson,  6  Car.  &  P.  375;  Luxford  v.  Large,  Ibid.  421,  and  Lynch 
V.  Nurdin,  1  Ad.  &  E.  (n.  s.)  29  ^  4  P.  &  D.  672,  are  to  the  same 
effect. 

Lord  Abinger,  C.  B.  I  am  of  opinion  that  there  ought  to  be  no 
rule  in  this  case.  The  defendant  has  not  denied  that  the  ass  was  law- 
fully in  the  highway,  and  therefore  we  must  assume  it  to  have  been 

'  The  usual  mode  of  citation  is  1  Q.  B. 


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SECT.  VIII.]  DAVIES  V.  BiANN  277 

lawfully  there;  but  even  were  it  otherwise,  it  would  have  made  no  dif- 
ference, for  as  the  defendant  might,  by  proper  care,  have  avoided  in- 
juring the  animal,  and  did  not,  he  is  liable  for  the  consequences  of  his 
negligence,  though  the  animal  may  have  been  improperly  there. 

Parke,  B.  This  subject  was  fully  considered  by  this  Court  in  the 
case  of  Bridge  v.  The  Grand  Junction  Railway  Company,  3  M.  &  W. 
246,  where,  as  appears  to  me,  the  correct  rule  is  laid  down  concerning 
negligence,  namely,  that  the  negligence  which  is  to  preclude  a  plain- 
tiff from  recovering  in  an  action  of  this  nature,  must  be  such  as  that 
he  could,  by  ordinary  care,  have  avoided  the  consequences  of  the  de- 
fendant's negligence.  I  am  reported  to  have  said  in  that  case,  and  I 
believe  quite  correctly,  that  "  the  rule  of  law  is  laid  down  with  perfect 
correctness  in  the  case  of  Butterfield  v.  Forrester,  that,  although  there 
may  have  been  negligence  on  the  part  of  the  plaintiff,  yet  unless  he 
might,  by  the  exercise  of  ordinary  care,  have  avoided  the  consequences 
of  the  defendant's  negligence,  he  is  entitled  to  recover;  if  by  ordinary 
care  he  might  have  avoided  them,  he  is  the  author  of  his  own  wrong.'* 
In  that  case  of  Bridge  v.  Grand  Junction  Railway  Company,  there 
was  a  plea  imputing  negligence  on  both  sides;  here  it  is  otherwise; 
and  the  judge  simply  told  the  jury,  that  the  mere  fact  of  negligence 
on  the  part  of  the  plaintiff  in  leaving  his  donkey  on  the  public  high- 
way, was  no  answer  to  the  action,  unless  the  donkey's  being  there  was 
the  immediate  cause  of  the  injury;  and  that,  if  they  were  of  opinion 
that  it  was  caused  by  the  fault  of  the  defendant's  servant  in  driving 
too  fast  or,  which  is  the  same  thing,  at  a  smartish  pace,  the  mere  fact 
of  putting  the  ass  upon  the  road  would  not  bar  the  plaintiff  of  his 
action.  All  that  is  perfectly  correct;  for,  although  the  ass  may  have 
been  wrongfully  there,  still  the  defendant  was  bound  to  go  along  the 
road  at  such  a  pace  as  would  be  likely  to  prevent  mischief.  Were  this 
not  so,  a  man  might  justify  the  driving  over  goods  left  on  a  public 
highway,  or  even  over  a  man  lying  asleep  there,  or  the  purposely 
running  against  a  carriage  going  on  the  wrong  side  of  the  road. 

GuRNBY,  B.,  and  Rolfe,  B.,  concurred.  Rule  refused.^ 

^  'The  other  instruction  was  in  these  words:  '  There  is  another  Qualification 
of  this  rule  of  negligence,  which  it  is  proper  I  should  mention.  Although  the  rule  is 
that,  even  if  the  defendant  be  shown  to  have  been  guilty  of  nesUgence,  the  plain- 
tiff cannot  recover  if  he  himself  be  shown  to  have  been  ^ilty  of  contributory  neg- 
Ugenoe  which  ma^  have  had  something  to  do  in  causmg  the  accident;  yet  the 
contributory  neghgence  on  his  part  would  not  exonerate  the  defendant^  and  disen- 
title the  plaintiff  from  recovering,  if  it  be  shown  that  the  defendant  might,  by  the 
exercise  of  reasonable  care  and  prudence,  have  avoided  the  consequences  of  the 
plaintiff's  nedigence.' 

"  The  qualification  of  the  general  rule,  as  thus  stated,  is  supported  by  decisions 
of  high  authority,  and  was  applicable  to  the  case  on  trial.''  Gray,  J.,  in  Itiland 
Ck)astinff  Ck>.  v.  Tolson,  139  U.  S.  551,  558. 

"  Although  the  defendant's  ne^gence  may  have  been  the  primary  cause  of  the 
injury  complained  of.  yet  an  action  for  such  injury  cannot  be  maintained  if  the 
proximate  and  immeaiate  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  (having  been  nrst  enunciated  in  Davies  v,  Mann,  10  M. 


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278  NORTHERN  PACIFIC  RAILWAY  CO.  V.  JONES      [CHAP.  11. 

NORTHERN  PACIFIC  RAILWAY  COMPANY  t;.  JONES 

United  States  Circuit  Court  of  Appeals,  Ninth  Circuit, 

February  5,  1906. 

Reported  in  144  Federal  Reporter,  47. 

Gilbert,  J.*  .  .  .  The  defendant  in  error  was  a  miner  of  the  age  of  34 
years,  and  was  in  the  full  possession  of  his  senses.  According  to  his  own  testi- 
mony, he  walked  upon  the  railroad  track  a  distance  of  more  than  half  a  mile 
without  once  looking  back  or  stopping  to  listen  for  an  approaching  train.  In  so 
doing,  it  must  be  held  that  he  was  guilty  of  gross  negligence,  which,  irrespec- 
tive of  negligence  in  the  failure  of  the  engineer  to  discover  him  on  the  track,  is 
sufficient  to  bar  his  right  of  recovery.  It  was  no  excuse  for  his  failure  to  take 
such  precautions  that  the  wind  was  blowing  in  his  face,  or  that  the  noise  of  a 
waterfall  may  have  deadened  the  sound  of  an  approaching  train.  Those  cir- 
cumstances only  rendered  the  use  of  his  senses  the  more  imperative.  It  was 
his  duty  continually  to  exercise  vigilance. 

On  the  authority  of  Inland  &  Seaboard  Coastiog  Co.  v.  Tolson,  139  U.  S. 
551-558, 11  Sup.  Ct.  653,  35  L.  Ed.  270;  Grand  Trunk  Ry.  Co.  v.  Ives,  144 
U.  S.  408^29, 12  Sup.  Ct.  679, 36  L.  Ed.  485;  and  Bogan  v,  Carolina  Central 
Ry.  Co.,  129  N.  C.  154,  39  S.  E.  808,  55  L.  R.  A.  418,  the  defendant  in  error 
invokes  the  doctrine  that  the  contributory  negligence  of  the  party  injured  will 
not  defeat  the  action,  if  it  be  shown  that  the  defendant  might,  by  the  exercise 
of  reasonable  care  and  prudence,  have  avoided  the  consequences  of  the  injured 
party's  negligence.  In  the  first  of  these  decisions,  the  doctrine  was  applied  in 
a  case  where  the  plaintiff,  a  wharfinger,  was  standing  with  his  foot  between  the 
timbers  of  a  wharf,  to  deliver  freight  to  a  vessel  which  was  about  to  make  a 
landing  there,  and  which  struck  the  wharf  with  such  force  as  to  crush  his  foot. 
But  the  court  held  that  the  doctrine  was  applicable,  for  the  reason  that  the 
jury  might  well  have  been  of  opinion  that,  while  there  was  some  negligence  on 
the  plaintiff's  part  in  standing  where  and  as  he  did,  yet  the  officers  of  the  boat 
knew  just  where  and  how  he  stood,  and  might  have  avoided  injuring  him,  if 
they  had  used  reasonable  care  to  prevent  the  steamboat  from  striking  the 
wharf  with  unusual  and  unnecessary  violence.  In  the  Ives  Case,  the  plaintiff's 
intestate  was  killed  while  attempting  to  cross  a  railroad  track.  There  was 
evidence  of  negligence  on  the  part  of  the  railroad  company.  On  the  part  of  the 
plaintiff's  intestate  there  was  no  evidence  as  to  what  precaution  he  took  before 
placing  himself  in  the  place  of  danger,  except  that,  at  a  distance  of  about 
seventy-six  feet  from  the  track,  he  stopped  several  minutes,  presumably  to 
listen  for  trains;  that  while  there  a  train  passed;  and  that,  soon  after  it  had 
passed,  and  while  the  noise  caused  by  it  was  still  quite  distinct,  he  proceeded 
across  the  track  and  was  struck  by  another  train.  The  court  held  that  the 
question  of  contributory  negligence  of  the  plaintiff's  intestate  was  properly 
left  to  the  jury,  as  one  to  be  determined  imder  all  the  circumstances  of  the 

&  W.  546)  that  the  contributory  negligence  of  the  party  injured  will  not  defeat  the 
action  if  it  be  shown  that  the  defendant  might,  by  the  exercise  of  reasonable  care 
and  prudence,  have  avoided  the  consequences  of  the  injured  party's  negligence." 
Lamar,  J.,  in  Grand  Trunk  R.  Co.  v.  Ives,  144  U.  S.  408,  429. 
^  The  statement  of  facts  and  portions  of  the  opinion  are  omitted. 


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SECT.  Vni.]      JONES  V.  CHARLESTON  A  WESTERN  RY.  CO.  279 

case,  but  incidentally  proceeded  to  aflSrm  the  rule  above  quoted,  citing  Davies 
V.  Mann,  10  M.  <fe  W.  546;  Inland  &  Seaboard  CJoasting  Co.  v,  Tolson,  and 
other  cases.  There  was  no  evidence  in  the  Ives  Case  that  the  plaintiff  ^s  intest- 
ate was  seen  by  those  who  were  managing  the  train  in  time  to  have  avoided 
the  accident.  The  court,  in  that  case,  however,  reaffirmed  the  rule  that  a 
traveller,  on  going  upon  a  railroad  track,  ought  to  make  vigilant  use  of  his 
senses  of  sight  and  hearing,  and  listen  for  signals,  and  look  in  the  different 
directions  from  which  a  train  might  come,  and  said:  — 

"  If  by  neglect  of  this  duty  he  suffers  injury  from  a  passing  train,  he  cannot 
recover  of  the  company,  although  it  may  itsdf  be  chargeable  with  negligence, 
or  have  failed  to  give  the  signals  required  by  statute,  or  be  running  at  the  time 
at  a  speed  exceeding  the  legal  rate." 

It  cannot  be  contended  that  in  the  Ives  Case  the  Supreme  Court  intended  to 
lay  down  the  broad  rule  that  no  contributory  neghgence  of  the  party  injured 
will  defeat  his  right  to  recover,  if  it  be  shown  that  the  defendant  might,  by  the 
exercise  of  reasonable  care  and  prudence,  have  avoided  the  consequences  of 
that  negligence.  To  so  hold  would  be  to  destroy  the  whole  doctrine  of  con- 
tributory negligence.  As  apphed  to  the  present  case,  it  would  mean  that  the 
plaintiff  in  error  was  bound  to  know  that  the  defendant  in  error  was  upon  its 
track,  and  that  he  would  not  step  aside  in  time  to  avoid  the  train.  Such  is  not 
the  doctrine  of  cases  such  as  Northern  Pacific  Railroad  v.  Freeman  *  and  the 
other  decisions  which  we  have  cited  above.  The  doctrine  of  "  the  last  clear 
chance^"  so  invoked  by  the  defendant  in  error,  originated  in  Davies  v.  Mann, 
in  which  it  was  held  that  the  plaintiff's  want  of  ordinary  care  in  that  case  did 
not  constitute  contributory  negligence,  because  it  was  a  remote  cause  or  mere 
condition  of  the  injury,  and  did  not  proximately  contribute  to  it,  and  because 
the  negligence  of  the  defendant  arose  subsequently  to  that  of  the  plaintiff,  and 
the  latter's  ne^gence  was  so  obvious  as  to  have  been  discoverable  by  the 
exercise  of  ordinary  care.  That  doctrine  has  no  appUcation  to  a  case  where  the 
plaintiff  voluntarily  places  himself  in  a  place  of  danger  from  which  he  has 
present  means  of  escape,  and  continues  there  without  exercising  precautions 
which  an  ordinarily  prudent  man  would  exercise.  We  have  nothing  here  to  do 
with  the  law  applicable  to  a  case  where  the  injured  person  is  found  in  a  place  of 
danger,  as  upon  a  railroad  trestle,  from  which  he  is  powerless  to  extricate  him- 
self on  the  approach  of  a  train,  and  where  his  situation  is  discovered,  or  ought 
to  have  been  discovered,  by  those  in  charge  of  the  train. 


JONES  V.  CHARLESTON  &  WESTERN  CAROLINA 
RAILWAY  COMPANY 

Supreme  Court,  South  Carolina,  April  Term,  1901. 

Reported  in  61  SoiUh  Carolina  ReportSf  656. 

AcnoN  imder  statute  by  administrator  of  Susan  V.  Jones  to  recover  for  her 
death.  Mrs.  Jones  was  killed  by  a  train  backing  down  upon  her  while  she  was 
walking  on  the  railroad  track.  Plaintiff's  evidence  tended  to  show  that  the 
track  at  that  place  had  been  accustomed  to  be  used  by  the  public  as  a  walkway 
with  the  knowledge  and  acquiescence  of  the  defendant  company.    Mrs.  Jones, 

»  174  U.  S.  379. 


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280  JONES  V.  CHARLESTON  A  WESTERN  RY.  CO.      [CHAP.  U. 

when  killed,  was  on  a  trestle.  The  train  was  backing  down  behind  her,  at  a 
speed  of  from  five  to  ten  miles  an  hour.  There  was  evidence  on  plaintiff's  part 
that  no  bell  was  rung,  no  whistle  blown,  no  warning  given  of  the  approach  of 
the  train;  also  that  there  was  no  look-out  on  the  train,  and  no  rear-end  lights. 

Defendant  requested  the  following  instruction  (No.  6) :  — 

"  Even  if  the  defendant  was  guilty  of  negligence  in  the  backing  of  its  train, 
and  such  negligence  was  a  proximate  cause  of  the  injury,  if  the  jury  aJso  be- 
lieve that  the  said  Susan  V.  Jones  showed  a  want  of  ordinary  care  in  walking 
down  the  track  that  night,  under  all  the  circumstances,  and  such  carelessness 
was  a  proximate  cause  of  the  injury,  she  was  guilty  of  contributory  neglig^ce, 
and  the  plaintiff  would  not  be  entitled  to  recover." 

The  judge  qualified  this  instruction  by  adding:  — 

"  If  the  deceased,  Mrs.  Jones,  was  guilty  of  negligence  in  acting  as  you  may 
find  from  the  testimony  that  she  acted,  and  if  her  conduct,  her  negligence,  to- 
gether with  the  negligence  of  the  railroad  company,  contributed  to  her  injury 
as  the  proximate  cause,  then  the  railroad  company  would  not  be  responsible, 
unless  the  railroad  company  could  have  avoided  injuring  her  notwithstanding 
her  negligence." 

The  judge  charged  the  jury,  in  accordance  with  plaintiff's  ninth  request,  as 
follows:  — 

"  Contributory  negligence  is  a  matter  of  defence,  and  must  be  proved  by 
defendant  by  a  preponderance  of  the  evidence;  but  unless  the  contributory 
negligence  was  the  proximate  cause  of  the  accident,  and  if  in  spite  of  such  con- 
tributory negligence  the  accident  could  have  been  avoided  by  the  use  of 
ordinary  care  on  the  part  of  the  defendant,  then  plaintiff  is  stOl  entitled  to 
recover." 

Verdict  for  plaintiff  and  judgment  thereon.    Defendant  appealed.* 

Jones,  J.  .  .  .  The  testimony  being  undisputed  that  Mrs.  Jones,  plaintiff 's 
intestate,  was  walking  down  the  railroad  track  at  the  time  of  the  injury,  the 
defendant  was  entitled  to  have  the  sixth  request  to  charge  above  mentioned  in 
the  tenth  exception  submitted  to  the  jury  as  entirely  correct.  The  remarks  by 
the  court  down  to  the  clause,  "  unless  the  railroad  company  could  have 
avoided  injuring  her  notwithstanding  her  negligence,"  were  not  improper  nor 
inconsistent  with  the  request,  but  the  addition  of  such  qualification  was  erro- 
neous and  wholly  inconsistent  with  the  well-settled  principles  governing  con- 
tributory negligence.  The  same  error  was  made  in  the  charge  excepted  to  in 
the  eleventh  exception  above,  when  the  court  instructed  the  jury,  "  but  unless 
the  contributory  negligence  was  the  proximate  cause  of  the  accident,  and  if  in 
spite  of  such  contributory  negHgence  (that  is,  negligence  which  contributed  as 
a  proximate  cause),  the  accident  could  have  been  avoided  by  the  use  of  ordi- 
nary care  on  the  part  of  the  defendant,  then  the  plaintiff  is  still  entitled  to 
recover."  The  charge  destroyed  the  defence  of  contributory  negligence.  In 
every  case  where  there  ia  contributory  negligence  the  defendant  could  have 
avoided  the  injury  by  ordinary  care,  for  the  simple  reason  that  there  can  be  no 
such  thing  as  contributory  negligence  unless  the  defendant  be  negligent.  The 
error  complained  of  is  the  same  error  which  was  condemned  in  Cooper  v,  Ry. 
Co.,  56  S.  C.  94.  The  law  in  this  state  is  settled  that  contributory  negligence 
as  defined  in  Cooper's  case,  supra,  to  any  extent,  will  always  defeat  plaintiff^fl 

1  The  statement  of  facts  is  condensed,  and  the  arguments  of  counsel  and  part  of 
the  opinion  are  omitted. 


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SECT.  VIII.]       CORDINER  V.  LOS  ANGELES  TRACTION  CO.  281 

recovery,  unless  the  injury  is  wantonly  or  wilfully  inflicted;  for  the  law  cannot 
measure  how  much  of  the  injury  is  due  to  the  plaintiff's  own  fault,  and  will 
not  recompense  one  for  injury  resulting  to  himself  from  his  own  misconduct. 
The  objection  to  the  charge  is  that  it  instructed  the  jury  that  although  plain- 
tiff's negligence  contributed  to  her  injury  as  a  proximate  cause,  she  could  re- 
cover if  the  defendant  by  ordinary  care  could  have  avoided  the  injury.  Is  it 
not  manifest  that  such  a  rule  would  abolish  contributory  negligence  as  a  de- 
fence ?  The  qualifying  terms,  "  unless  the  railroad  company  could  have 
avoided  injuring  her  notwithstanding  her  negligence,''  would  necessarily  mis- 
lead a  jury;  for  they  would  at  once  say  the  railroad  company  could  have 
avoided  the  injury  by  not  being  negligent  in  the  manner  alleged  in  the  com- 
plaint, by  having  suitable  rear  end  lights,  by  a  reasonable  lookout,  by  loud 
warning  of  the  train's  approach,  by  running  at  such  slow  speed  as  to  enable 
any  one  warned  to  get  off  the  track;  and  then  utterly  ignore  the  defendant's 
plea  and  evidence  of  contributory  negligence,  because  of  the  instruction  that 
plaintiff,  notwithstanding  her  negligence  which  proximately  caused  her  in- 
jury, could  still  recover,  if  the  defendant  could  have  avoided  the  injury.  The 
jury  ought  to  have  been  instructed  without  qualification,  that  if  plaintiff  was 
negligent  and  that  negligence  contributed  as  a  proximate  cause  to  her  injury, 
she  could  not  recover,  unless  the  injury  was  wantonly  or  wilfully  inflicted. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  case  remanded  for  a 
new  trial 


CORDINER  V.  LOS  ANGELES  TRACTION  COMPANY 

District  Court  of  Appeals,  Second  District,  California, 

April  16,  1907. 

Reported  in  4  California  Appellate  Decisions^  480. 

Shaw,  J.  Neither  of  the  defendants  questioned  the  right  of  plaintiff  to  re- 
cover such  damages  as  she  had  sustained  in  the  collision,  but  each  contended 
that  the  other  should  be  held  responsible  therefor;  and  with  the  view  of  hav- 
ing the  jury  pass  upon  the  question,  the  Los  Angeles  Railway  Company  asked 
the  court  to  instruct  the  jury,  in  effect,  that  notwithstanding  the  negligence  of 
its  motorman  in  driving  his  car  upon  the  crossing,  still  if  the  traction  motor- 
man  could,  after  he  saw  that  it  was  beyond  the  power  of  the  motorman  of  the 
Los  Angeles  Railway  car  to  avoid  the  accident,  have,  by  proper  care,  pre- 
vented the  collision,  then  the  negligence  of  the  defendant  Los  Angeles  Traction 
Company  was  the  proximate  cause  of  the  injury.  In  other  words,  while  admit- 
ting that  plaintiff's  injury  resulted  from  the  collison  due  to  the  joint  or  con- 
cmrent  acts  of  negligence  of  defendants,  she  must  be  confined  in  her  recovery 
for  such  damages  to  a  judgment  rendered  against  the  defendant  who  had 
the  "last  clear  chance  "  to  avoid  the  collision  and  neglected  to  act  upon  it. 
Appellant  seeks  to  apply  the  well-established  principle  that  "  he  who  last  has 
a  clear  opportunity  of  avoiding  the  accident,  by  the  exercise  of  proper  care  to 
avoid  injuring  another,  must  do  so."  Esrey  v.  S.  Pacific  Co.,  103  Cal.  541. 
This  rule  is  only  applicable  to  cases  where  the  defence  is  based  upon  the  con- 
tributory negligence  of  plaintiff  due  to  his  want  of  care  in  placing  himself  in  a 
position  of  danger,  and  where  he  may,  notwithstanding  his  negligence,  recover 


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282  STILES  V.  GEESEY  [CHAP.  II, 

from  a  defendant,  who  by  the  exercise  of  proper  care  could  have  avoided  the 
injury.  We  are  unable  to  perceive  why  this  rule  should  ^pply  to  plaintiff, 
who  was  in  no  way  chargeable,  by  imputation  or  otherwise,  with  negligence; 
nor  are  we  referred  to  any  authority  which  supports  the  proposition.  Indeed, 
all  the  authorities  recognize  the  right  of  recovery  against  either  or  both  of  the 
defendants  whose  concurring  acts  of  negligence  united  in  producing  the  injury. 
1  Shearman  &  Redfield  on  Neg.  p.  122;  1  Thompson  on  Neg.  p.  75;  Doeg  v. 
Cook,  126  Cal.  213;  Tompkins  v.  Clay  St.  Ry.  Co.,  66  Cal.  163;  Pastene  v. 
Adams,  49  Cal.  87.» 

STILES  V.  GEESEY 
Supreme  Court,  Pennsylvania,  May  30,  1872. 

Reported  in  71  Pennsylvania  State  Reports ,  439. 

Before  Thompson,  C.  J.,  Read,  Agnew,  Sharswood  and  Wil- 
liams, JJ. 

Error  to  the  Court  of  Common  Pleas  of  York  County. 

Action  on  the  case  by  Jacob  B.  Geesey  against  Thomas  Stiles,  for 
alleged  injuiy  by  the  negligence  of  William  Stiles,  son  of  defendant, 
by  which  plaintiflf's  horse  and  carriage  were  damaged.* 

PlaintiflF's  wife,  driving  in  a  light  carriage  of  plaintiflf's,  hitched  her 
horse  to  a  tree  on  the  road,  and  went  into  a  friend's  house.  The  car- 
riage projected  into  the  travelled  part  of  the  road.  Whilst  the  carriage 
was  so  left,  the  defendant's  son,  William  Stiles,  was  driving  his  father's 
team  with  a  loaded  wagon  along  the  road.  He  got  off  to  do  something 
to  his  wagon;  and  seeing  an  acquaintance  in  a  neighboring  barn, 
stopped  a  moment  to  exchange  a  few  words  with  him,  the  team  moving 
on  slowly  at  the  time  with  the  load  up  the  hill,  keeping  the  travelled 
track  of  the  road  till  the  front  horse  was  just  behind  plaintiff's  carriage 
standing  unattended  where  it  was  left.  At  this  point  of  time  William 
Stiles  was  behind  his  own  wagon,  at  some  distance  from  it;  and  did 
not  see  the  obstruction  in  the  road  in  time  to  avoid  a  collision.  The 
wagon  collided  with  the  carriage.  Stiles  halloed  "  Whoa,"  and  his 
horses  stopped.  In  the  collision,  the  plaintiff's  horse  was  fatally 
injured. 

The  third  point  of  the  plaintiff,  which  was  affirmed  in  the  charge  to 
the  jury  by  Fisher,  P.  J.,  is  as  follows:  — 

"  That  Thomas  Stiles  cannot  excuse  the  negligence  of  William  Stiles 
by  showing  that  the  plaintiff's  property  was  placed  where  it  received 
the  injury  by  want  of  ordinary  care  by  Mrs.  Geesey,  if,  in  the  opinion 
of  the  jury  such  want  is  imputable  to  her,  should  the  jury  believe  that 
WiUiam  Stiles  was  chai^able  with  negligence  in  leaving  his  team  and 
permitting  it  to  go  along  the  highway  unattended." 

Verdict  for  plaintiff. . 

*  Only  a  portion  of  the  opinion  is  printed. 

*  The  statement  of  facts  is  abridged  from  the  statement  in  the  opinion  and  from 
the  statement  made  by  the  reporter.    The  citations  of  counsel  are  omitted. 


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SECT.  VIII.]    RADLEY  V.  LONDON  &  NORTH  WESTERN  RY.  CO.     283 

Read,  J.  [After  stating  the  facts.]  We  have  taken  in  brief,  the  de- 
fendant's statement  of  his  defence,  which  fairly  raises  the  question  of 
contributory  negligence.  "  It  is  an  incontestable  principle  that  where 
the  injury  complained  of  is  the  product  of  mutual  or  concurring  negli- 
gence, no  action  for  damages  will  lie.  The  parties  being  mutually  in 
fault  there  can  be  no  apportionment  of  the  damages.  The  law  has  no 
scales  to  determine  in  such  cases  whose  wrong-doing  weighed  most  in 
the  compound  that  occasioned  the  mischief: "  per  Woodward,  J., 
12  Harris,  469. 

"  The  question  presented  to  the  Court  or  the  jury  is  never  one  of 
comparative  negligence,  as  between  the  parties;  nor  does  very  great 
negligence  on  the  part  of  a  defendant  so  operate  to  strike  a  balance 
of  negligence  as  to  give  a  judgment  to  a  plaintiflf  whose  own  negligence 
contributes  in  any  degree  to  the  injury."  Wilds  v.  Hudson  River 
Raihroad  Co.,  24  N.  Y.  432. 

The  third  error  assigned  is  that  the  Court  erred  in  their  charge  to 
the  jury  on  the  plaintiff's  third  pomt,  which  was  as  follows:  "  That 
Thomas  Stiles  cannot  excuse  the  negligence  of  William  StQes  by  show- 
ing that  the  plaintiff's  property  was  placed  where  it  received  the  in- 
jury, by  want  of  ordinary  care  by  Mrs.  Geesey,  if  in  the  opinion  of  the 
jury  such  want  is  imputable  to  her,  should  the  jury  believe  WflUam 
Stiles  was  chargeable  with  negligence,  in  leaving  his  team  and  per- 
mitting it  to  go  along  the  highway  unattended,"  which  point  the 
Comrt  affirmed,  holding  that  although  there  was  contributory  negli- 
gence on  the  part  of  the  plaintiff,  he  was  entitled  to  recover  from  the 
defendant  on  account  of  his  negligence.  This  was  a  binding  instruc- 
tion upon  the  jury,  leaving  nothing  for  them  to  inquire  into  prac- 
tically, except  the  negligence  of  the  defendant.  In  this  the  Court 
committed  a  clear  error,  and  the  judgment  must  be  reversed,  and 
venire  de  novo  awarded. 


RADLEY  V.  LONDON  AND  NORTH  WESTERN  RAILWAY 

COMPANY 

In  the  House  of  Lords,  December  1, 1876. 
Reported  in  Law  Reporie,  1  Appeal  Caeea^  754. 

This  was  an  appeal  against  a  decision  of  the  Court  of  Exchequer 
Chamber. 

The  appellants  were  the  plaintiffs  in  an  action  brought  in  the  Comt 
of  Exchequer,  in  which  they  claimed  to  recover  damages  for  the  de- 
struction of  a  bridge  occasioned,  as  they  alleged,  by  the  negUgence 
of  the  defendants'  servants.  The  plaintiffs  were  owners  of  the  San- 
key  Brook  Colliery,  in  the  county  of  Lancaster,  which  was  situated 
near  a  branch  line  of  the  defendants*  railway.  There  was  a  siding 
belonging  to  the  plaintiffs,  which  communicated  with  the  railway,  and 


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284      RADLEY  V.  LONDON  A  NORTH  WESTERN  RY.  CO.      [CHAP.  H. 

the  defendants'  servants  were  in  the  habit  of  taking  trucks  lo^ed 
with  coals  from  this  siding,  in  order  to  run  them  on  the  railway  to 
forward  them  to  their  destination,  and  also  of  bringing  back  empty 
trucks  and  running  them  from  the  railway  on  to  the  siding.  On 
Satiu*day  after  working  hours,  when  all  the  colliery  men  had  gone 
away,  the  defendants'  servants  ran  some  of  the  plaintiflFs'  empty 
trucks  from  the  railway  upon  the  siding  and  there  left  them.  In  that 
position  they  remained.  One  of  the  watchmen  employed  by  the  plain- 
tiffs knew  that  they  were  there,  but  nothing  was  done  to  remove  them 
to  a  different  place.  In  the  first  of  these  trucks  had  been  placed  a 
truck  which  had  broken  down,  and  the  height  of  the  two  trucks  com- 
bined was  nearly  eleven  feet.  There  was,  in  advance  of  the  spot  where 
the  trucks  had  been  left,  a  bridge  placed  over  a  part  of  the  siding,  the 
span  of  which  bridge  was  about  eight  feet  from  the  ground.  On  Sun- 
day afternoon  the  defendants'  servants  brought  a  long  line  of  empty 
trucks  belonging  to  the  plaintiffs,  and  ran  them  on  the  line  of  the  sid- 
ing, pushing  on  the  first  set  of  trucks  in  front.  Some  resistance  was 
perceived,  and  the  pushing  force  of  the  engine  employed  was  increased, 
and  the  result  was,  as  the  two  trucks  at  the  head  of  the  line  could  not 
pass  under  the  bridge,  they  struck  with  great  force  against  it  and 
broke  it  down.*  For  the  damage  thereby  occasioned  this  action  was 
brought.  The  defence  was  contributory  negligence;  it  being  insisted 
that  the  plaintiffs  ought  to  have  moved  the  first  set  of  trucks  to  a  safe 
place,  or  at  all  events,  not  to  have  left  the  truck  with  the  disabled 
truck  in  it  so  as  to  be  likely  to  occasion  mischief.  At  the  trial  before 
Mr.  Justice  Brett,  at  the  Smnmer  Assizes  at  Liverpool,  in  1873,  the 
learned  judge  told  the  jury  that  "  you  must  be  satisfied  that  the  plain- 
tiffs' servants  did  not  do  anything  which  persons  of  ordinary  care, 
under  the  circumstances,  would  not  do,  or  that  they  otfiitted  to  do 
something  which  persons  of  ordinary  care  would  do.  .  .  .  It  is  for 
you  to  say  entirely  as  to  both  points;  but  the  law  is  this,  the  plaintiffs 
must  have  satisfied  you  that  this  happened  by  the  negligence  of  the 
defendants'  servants,  and  without  any  contributory  negligence  of  their  * 
own,  in  other  words  that  it  was  solely  by  the  negligence  of  the  de- 
fendants' servants.  If  you  think  it  was,  then  your  verdict  will  be  for 
the  plaintiffs.  If  you  think  it  was  not  solely  by  the  negUgence  of  the 
defendants'  servants,  your  verdict  must  be  for  the  defendants."  *  The 
jurors  having,  on  this  direction^  stated  that  they  thought  there  was 
contributory  negligence  on  the  part  of  the  plaintiffs,  the  learned  judge 
directed  that  the  verdict  should  be  entered  for  the  defendants,  but 
reserved  leave  for  the  plaintiffs  to  move. 

*''...  The  wagon  so  loaded  coining  to  the  bridge  and  being  unable  to  pass 
underneath  it.  the  train  stopped,  and  those  who  had  charge  of  it,  without  looking 
to  ascertain  tne  cause  of  the  stoppage,  eave  momentum  to  the  engine  to  such  an 
extent  that  the  wagon  with  its  load  knocKed  the  bridge  down/'  Statement  of  facts 
in  opinion  of  Bramwell,  B.,  L.  R.  9  Exch.  72.  Compare  statement  in  L.  R.  10 
Exch.  102. 

*  Printed  papers  in  the  case. 


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SECT.  Vm.]   RADLET  V.  LONDON  h  NORTH  WESTERN  RY.  CO.      285 

A  rule  having  been  obtained  for  a  new  trial,  it  was  after  argument 
before  Barons  Bramwell  and  Amphlett  made  absolute.*  On  appeal 
to  the  Exchequer  Chamber  the  decision  was,  by  Justices  Blackburn, 
Mellor,  Lush,  Brett,  and  Archibald  (dm.  Justice  Denman),  reversed.* 
This  appeal  was  then  brought.' 

Lord  Penzance.  My  Lords,  the  action  out  of  which  this  appeal 
arises  is  an  action  charging  the  defendants  with  negligence  (through 
their  servants)  in  so  managing  the  shunting  of  some  empty  coal- 
wagons  as  to  knock  down  a  bridge  and  some  staging  and  some  colliery 
head-gearing,  which  stood  upon  it,  and  belonged  to  the  plaintiffs. 

The  first  question  on  the  appeal  is,  whether  the  Court  of  Exchequer 
Chamber  was  right  in  holding  that  there  was  any  evidence,  proper  to 
be  submitted  to  the  jury,  tending  to  the  conclusion  that  the  plaintiffs 
themselves  had  been  guilty  of  some  negligence  in  the  matter,  and  that 
such  negligence  had  contributed  to  produce  the  accident  and  injury  of 
which  they  complained. 

The  general  facts  of  the  case,  the  particular  facts  which  gave  rise 
to  the  imputation  of  negligence,  and  the  contention  of  both  sides  as 
to  the  fair  result  of  these  facts,  are  stated  in  the  judgment  of  the 
Court  of  Exchequer  delivered  by  Baron  Bramwell.  His  Lordship  here 
read  the  statement  from  Mr.  Baron  Bramwell's  judgment.* 

It  may  be  admitted  that  this  is  a  fair  and  full  statement  of  the  argu- 
ments and  considerations  on  the  one  side,  and  on  the  other,  upon 
which  the  question  of  the  plaintiffs'  negligence  had  to  be  decided.  But 
it  had  to  be  decided  by  the  jurors,  and  not  by  the  Court,  and  I  am 
unable  to  perceive  any  reason  why  the  learned  judge  did  wrong  in 
submitting  these  arguments  and  considerations  to  their  decision  ac- 
cordingly. The  bare  statement  of  them  is  enough  to  show  that  there 
were  in  the  case  facts  and  circumstances  sufficient  at  least  to  raise  the 
question  of  negligence,  whether  they  were  a  sufficient  proof  of  negli- 
gence or  not. 

The  decision,  therefore,  of  the  Exchequer  Chamber  upon  this  matter 
ought,  I  think,  to  be  upheld. 

The  remaining  question  is  whether  the  learned  judge  properly  di- 
rected the  jury  in  point  of  law.  The  law  in  these  cases  of  negligence 
is,  as  was  said  in  the  Court  of  Exchequer  Chamber,  perfectly  well 
settled  and  beyond  dispute. 

The  first  proposition  is  a  general  one,  to  this  effect,  that  the  plaintiff 
in  an  action  for  negligence  cannot  succeed  if  it  is  found  by  the  jury 
that  he  has  himself  been  guilty  of  any  negligence  or  want  of  ordinary 
care  which  contributed  to  cause  the  accident. 

But  there  is  another  proposition  equally  well  established,  and  it  is  a 
qualification  upon  the  first,  namely,  that  though  the  plaintiff  may 
have  been  guilty  of  negligence,  and  although  that  negligence  may,  in 

*  L.  R.  9  Ex.  71.  •  Arguments  of  counsel  are  omitted. 

*  L.  R.  10  Ex.  700.  <  L.  R.  9  Ex.  at  72. 


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286       RADLEY  V.  LONDON  A  NORTH  WESTERN  RY.  CO.     [CHAP.  II. 

fact,  have  contributed  to  the  accident,  yet  if  the  defendant  could  in  the 
result,  by  the  exercise  of  ordinary  care  and  diligence,  have  avoided  the 
mischief  which  happened,  the  plaintiflfs'  negligence  wUl  not  excuse 
him. 

This  proposition,  as  one  of  law,  cannot  be  questioned.  It  was 
decided  in  the  case  of  Davies  v.  Mann,  10  M.  &  W.  646,  supported  in 
that  of  TuflF  V.  Warman,  5  C.  B.  (n.  s.)  573;  27  L.  J.  C.  P.  322,  and 
other  cases,  and  has  been  universally  applied  in  cases  of  this  character 
without  question. 

The  only  point  for  consideration,  therefore,  is  whether  the  learned 
judge  properly  presented  it  to  the  mind  of  the  jury. 

It  seems  impossible  to  say  that  he  did  so.  At  the  beginning  of  his 
summing-up  he  laid  down  the  following  as  the  propositions  of  law 
which  governed  the  case:  It  is  for  the  plaintiffs  to  satisfy  you  that 
this  accident  happened  through  the  negligence  of  the  defendants' 
servants,  and  as  between  them  and  the  defendants,  that  it  was  solely 
through  the  negligence  of  the  defendants'  servants.  They  must  satisfy 
you  that  it  was  solely  by  the  negligence  of  the  defendants'  servants, 
or,  in  other  words,  that  there  was  no  negligence  on  the  part  of  their 
servants  contributing  to  the  accident;  so  that,  if  you  think  that  both 
sides  were  negligent,  so  as  to  contribute  to  the  accident,  then  the 
plaintiffs  cannot  recover. 

This  language  is  perfectly  plain  and  perfectly  unqualified,  and  in 
case  the  jurors  thought  there  was  any  contributory  negligence  on  the 
part  of  the  plaintiffs'  servants,  they  could  not,  without  disregarding 
the  direction  of  the  learned  judge,  have  found  in  the  plaintiffs'  favor, 
however  negligent  the  defendants  had  been,  or  however  easily  they 
might  with  ordinary  care  have  avoided  any  accident  at  all. 

The  learned  judge  then  went  on  to  describe  to  the  jury  what  it  was 
that  might  properly  be  considered  to  constitute  negligence,  first  in  the 
conduct  of  the  defendants,  and  then  in  the  conduct  of  the  plaintiffs; 
and  having  done  this,  he  again  reverted  to  the  governing  propositions 
of  law,  as  follows:  "  There  seem  to  be  two  views.  It  is  for  you  to  say 
entirely  as  to  both  points.  But  the  law  is  this,  the  plaintiff  must  have 
satisfied  you  that  this  happened  by  the  negligence  of  the  defendants'- 
servants,  and  without  any  contributory  negligence  of  their  own;  in 
other  words,  that  it  was  solely  by  the  negligence  of  the  defendants' 
servants.  If  you  think  it  was,  then  your  verdict  will  be  for  the  plain- 
tiffs. If  you  think  it  was  not  solely  by  the  negligence  of  the  defend- 
ants' servants,  your  verdict  must  be  for  the  defendants." 

This,  again,  is  entirely  without  qualification,  and  the  undoubted 
meaning  of  it  is,  that  if  there  was  any  contributory  negligence  on  the 
part  of  the  plaintiffs,  they  could  in  no  case  recover.  Such  a  statement 
of  the  law  is  contrary  to  the  doctrine  established  in  the  case  of  Davies 
V,  Mann,  10  M.  &  W.  546,  and  the  other  cases  above  alluded  to,  and  in 
no  part  of  the  sunmiing-up  is  that  doctrine  anywhere  to  be  found. 


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SECT.  VIII.]    RADLEY  V.  LONDON  h  NORTH  WESTERN  RY.  CO.     287 

The  learned  counsel  were  unable  to  point  out  any  passage  addressed 
to  it. 

It  is  true  that  in  part  of  his  sununing-up  the  learned  judge  pointed 
attention  to  the  conduct  of  the  engine-driver,  in  determining  to  force 
his  way  by  violence  through  the  obstruction,  as  fit  to  be  considered  by 
the  jury  on  the  question  of  negligence;  but  he  failed  to  add  that  if 
they  thought  the  engine-driver  might  at  this  stage  of  the  matter  by 
ordinary  care  have  avoided  all  accident,  any  previous  negligence  of 
the  plaintiffs  would  not  preclude  them  from  recovering. 

In  point  of  fact  the  evidence  was  strong  to  show  that  this  was  the 
immediate  cause  of  the  accident,  and  the  jury  might  well  think  that 
ordinary  care  and  diligence  on  the  part  of  the  engine-driver  would, 
notwithstanding  any  previous  negligence  of  the  plaintiffs  in  leaving 
the  loaded-up  truck  on  the  b'ne,  have  made  the  accident  impossible. 
This  substantial  defect  of  the  learned  judge's  charge  is  that  that 
question  was  never  put  to  the  jury. 

On  this  point,  therefore,  I  propose  to  move  that  your  Lordships 
should  reverse  the  decision  of  the  Exchequer  Chamber,  and  direct  a 
new  trial. 

The  Lord  Chancellor  (Lord  Cairns).  My  Lords,  I  have  had  the 
advantage  of  considering  the  opinion  which  has  just  been  expressed 
to  your  Lordships  in  this  case  by  my  noble  and  learned  friend,  and, 
concurring  as  I  do  with  every  word  of  it,  I  do  not  think  it  i3  necessary 
that  I  should  do  more  than  say  that  I  hope  your  Lordships  will  agree 
to  the  motion  which  he  has  proposed. 

Lord  Blackburn.  My  Lords,  I  agree  entirely  with  the  noble  Lord 
who  has  first  spoken  as  to  what  were  the  proper  questions  for  the  jury 
in  this  case,  and  that  they  were  not  decided  by  the  jury.  I  am  in- 
clined to  think  that  the  learned  judge  did  in  part  of  his  summing-up 
sufficiently  ask  the  proper  questions,  had  they  been  answered,  but 
imfortunately  he  failed  to  have  an  answer  from  the  jury  to  those  ques- 
tions, it  appearing  by  the  case  that  the  only  finding  was  as  to  the 
plaintiffs*  negligence. 

I  agree,  therefore,  in  the  result  that  there  should  be  a  new  trial. 

Lord  Gordon.  My  I^ords,  I  entirely  concur  in  the  motion  which 
has  been  submitted  to  your  Lordships  by  my  noble  and  learned  friend 
on  the  other  side  of  the  House.  The  question  is  one  which  has  given 
rise  to  some  difficulty  in  the  courts  of  Scotland,  but  I  think  that  it  is 
very  likely  that  the  opinion  which  has  been  expressed  in  this  case  will 
be  regarded  as  a  very  useful  authority  for  guiding  their  decisions.* 

Jtutgrnent  of  the  Court  of  Exchequer  Chamber  reversed. 
Judgment  of  the  Court  of  Exchequer  restored,  and  a 
new  trial  ordered,  with  costs. 

Lords'  Journals,  December  1,  1876. 

*  See  also  Cayaer  v.  Carron,  9  App.  Cas.  873;  McDermaid  v.  Edinburgh  Tram- 
ways Co.,  22  Sc.  L.  R.  13. 


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288  NASHUA,  Ac.  CO.  V.  WORCESTER,  Ac.  CO.  [CHAP.  H. 

NASHUA  IRON  AND  STEEL  CO.  v.  WORCESTER 
&  NASHUA  RAILROAD  CO. 

Supreme  Court,  New  Hampshire,  June,  1882. 
Reported  in  62  New  Hampshire  Reports,  159. 

Case.    Demurrer  to  the  declaration. 

Carpenter,  J.  The  declaration  alleges  that  by  the  defendants' 
careless  management  of  their  engine  and  cars,  the  plaintiffs'  horse  was 
frightened,  and  caused  to  run  upon  and  injure  Ursula  Clapp,  who  was 
without  fault;  that  Clapp  brought  her  action  therefor  against  the 
plaintiffs,  and  recovered  judgment  for  damages,  which  they  paid;  that 
the  defendants  had  notice  of,  and  were  requested  to  defend,  the  suit. 
The  defendants  demur.  Inasmuch  as  Clapp  could  not  have  recovered 
against  the  plaintiffs  unless  they  were  in  fault  (Brown  v.  Collins,  53 
N.  H.  442;  Lyons  v.  Child,  61  N.  H.  72),  it  must  be  taken  that  their 
negligence  co-operated  with  that  of  the  defendants  to  produce  the  in- 
jury. If  the  plaintiffs  were  not  liable  in  that  action  because  their 
negligence  was  not,  and  the  defendants'  negligence  was,  the  cause  of 
the  accident,  the  objection  is  not  now  open  to  the  defendants.  Little- 
ton V,  Richardson,  34  N.  H.  179.  In  relation  to  Clapp,  both  parties 
were  wrong-doers.  She  could  piusue  her  remedj''  against  either  or 
both  of  tl\em  at  her  election.  Burrows  v.  March  Gas  Co.,  L.  R.  5  Ex. 
67,  71. 

One  of  several  wrong-doers,  who  has  been  compelled  to  pay  the  dam- 
ages caused  by  the  wrong,  has  in  general  no  remedy  against  the  others. 
He  cannot  make  his  own  misconduct  the  ground  of  an  action  in  his 
favor.  To  this  proposition  there  are,  it  has  been  said,  so  many  excep- 
tions, that  it  can  hardly,  with  propriety,  be  called  a  general  rule. 
Bailey  v.  Bussing,  28  Conn.  455.  Its  application  is  restricted  to  cases 
where  the  person  seeking  redress  knew,  or  is  presumed  to  have  known, 
that  the  act  for  which  he  has  been  mulcted  in  damages  was  unlawful. 
Jacobs  V,  Pollard,  10  Cush.  287,  289;  Coventry  v.  Barton,  17  Johns. 
142.  In  many  instances  several  parties  may  be  liable  in  law  to  the 
person  injured,  while  as  between  themselves  some  of  them  are  not 
wrong-doers  at  all ;  and  the  equity  of  the  guiltless  to  require  the  actual 
wrong-doer  to  respond  for  all  the  damages,  and  the  equally  innocent 
to  contribute  his  proportion,  is  complete.  Wooley  v.  Batte,  2  C.  &  P. 
417;  Pearson  v.  Skelton,  1  M.  &  W.  504;  Betts  v.  Gibbins,  2  A.  &  E. 
57;  Adamson  v.  Jarvis,  4  Bing.  66;  Avery  v.  Halsey,  14  Pick.  174; 
Gray  v.  Boston  Gas  Light  Co.,  114  Mass.  149;  Churchill  v.  Holt,  127 
Mass.  165,  and  131  Mass.  67;  Bailey  v.  Bussing,  supra;  Smith  v, 
Foran,  43  Conn.  244.  These  cases,  instead  of  being  exceptions  to  the 
rule,  seem  rather  not  to  fall  within  it.  The  right  of  recovery  rests  in  ' 
the  one  case  upon  the  principle  that  he  who  without  faiilt  on  his  part  is 
injxured  by  another's  wrongful  act  is  entitled  to  indemnity,  and  in  the 


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SECT.  Vm.]         NASHUA,  Ac.  CO.  V.  WORCESTER,  Ac.  CO.  289 

other  upon  the  doctrine  of  contribution.  One  of  two  masters,  who  is 
compelled  to  pay  damages  by  reason  of  his  servant's  negligence,  may 
have  contribution  from  the  other  because  he  has  removed  a  burden 
common  to  both.  They  may  recover  indemnity  of  the  servant,  be- 
cause as  against  him  they  are  without  fault,  and  are  directly  injured  by 
his  misconduct.  One  who  is  so  far  innocent  that  he  can  recover  for  an 
injury  to  his  person  or  property,  may  also  recover  whatever  sum  he,  by 
reason  of  his  relation  to  the  wrong,  has  been  compelled  to  pay  to  a 
third  person.  If  the  plaintiffs  could  recover  for  an  injury  to  their 
horse,  caused  by  the  accident,  they  may  recover  the  sum  which  they 
paid  to  Clapp. 

The  declaration  is  general.  It  does  not  disclose  the  particulars  of 
the  plaintiffs'  negligence,  by  reason  of  which  Clapp  recovered  against 
them.  Under  it,  cases  differing  widely  in  their  facts  and  legal  aspects 
may  be  proved.  Among  others  possible,  it  may  be  shown  that  the 
horse  was  in  the  charge  of  the  plaintiffs'  servants,  who  might  have  pre- 
vented its  fright  or  its  running  after  the  fright,  or  if  they  could  do 
neither,  that  they  might  nevertheless  have  avoided  the  injury  to  Clapp; 
or  it  may  appear  that  the  plaintiffs'  negligence  consisted  solely  in  per- 
mitting the  horse,  whether  attended  or  unattended  by  their  servants, 
to  be  at  the  place  where  it  was  at  the  time  of  the  fright.  The  generality 
of  the  declai^ation  does  not  render  it  bad  in  law.  Corey  v.  Bath,  35 
N.  H.  531.  If  the  plaintiffs  are  entitled  to  judgment  upon  any  state 
of  facts  provable  under  it,  the  demmrer  must  be  overruled.  Whether 
the  plaintiffs  can  recover  in  any  case,  and  if  so,  in  what  cases,  possible 
to  be  proved  under  the  declaration,  are  speculative  or  h3rpothetical 
questions,  of  which  none  may,  and  all  cannot,  arise.  They  involve 
substantially  the  whole  subject  of  the  law  relating  to  mutual  negli- 
gence. The  case  might  properly  be  discharged  without  considering 
them  (Smith  v.  Cud  worth,  24  Pick.  196),  and  the  parties  required  to 
present  by  the  pleadings,  or  by  a  verdict,  the  facts  upon  which  their 
rights  depend.  A  brief  consideration,  however,  of  the  general  ques- 
tions involved,  may,  it  is  thought,  facilitate  a  trial,  and  save  expense 
to  the  parties. 

Ordinary  care  is  such  care  as  persons  of  average  prudence  exercise 
under  like  circumstances.  Tucker  v.  Henniker,  41  N.  H.  317;  Sleeper 
V.  Sandown,  52  N.  H.  244;  Aldrich  v.  Monroe,  60  N.  H.  118.  Every 
one  in  the  conduct  of  his  lawful  business  is  boimd  to  act  with  this  de- 
gree of  care,  and  if  he  fails  to  do  so  is  responsible  for  the  consequences. 
It  follows  that  a  person  injured  by  reason  of  his  want  of  ordinary  care, 
or  (since  the  law  makes  no  apportionment  between  actual  wrong- 
doers) by  the  joint  operation  of  his  own  and  another's  negligence,  is 
remediless.  TTiis  general  rule  of  law  justly  applied  to  the  facts  deter- 
mines, it  is  believed,  the  rights  of  the  parties  in  all  actions  for  negli- 
gence. In  its  application,  the  law,  as  in  various  other  cases,  deals  with 
the  immediate  cause,  —  the  cause  as  distinguished  from  the  occasion. 


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290  NASHUA,  Ac.  CO.  V.  WORCESTER,  Ac.  CO.  [CHAP.  H. 

—  and  looks  at  the  natural  and  reasonably  to  be  expected  effects. 
Cowles  V.  Kidder,  24  N.  H.  383;  Hooksett  v.  Company,  44  N.  H.  108; 
Mclntire  v.  Plaisted,  57  N.  H.  608;  Solomon  v.  Chesley,  59  N.  H.  243; 
China  v.  Southwick,  12  Me.  238;  Lowery  v.  Western  U.  Tel.  Co.,  60 
N.  Y.  198;  Rigby  v.  Hewitt,  5  Exch.  243;  Blyth  v.  Birmingham 
Waterworks  Co.,  11  Exch.  781;  Bank  of  Ireland  v.  Evans's  Charities, 
6  H.  L.  Ca.  389,  410,  411;  lonides  v.  Marine  Ins.  Co.,  14  C.  B.  n.  s. 
259;  Romney  Marsh  v.  Trinity  House,  L.  R.  5  Ex.  204;  Holmes  v, 
Mather,  L.  R.  10  Ex.  268;  Sharp  v.  Powell,  L.  R.  7  C.  P.  253;  Pearson 
V.  Cox,  2  C.  P.  Div.  369;  Tutein  v.  Hurley,  98  Mass.  211;  Bro.  Leg. 
Max.  215. 

Actions  for  negligence  may,  for  convenience  of  consideration,  be 
separated  into  four  classes,  namely,  —  where,  upon  the  occasion  of  the 
injury  complained  of  (1)  the  plaintiff,  (2)  the  defendant,  or  (3) 
neither  party  was  present,  and  (4)  where  both  parties  were  present. 
In  all  of  them  it  may  happen  that  both  parties  were  more  or  less  negli- 
gent. Actions  upon  the  statute  of  highways  are  a  conmion  example  of 
the  first  class.  The  negligence  of  the  defendant,  however  great,  does 
not  relieve  the  plaintiff  from  the  duty  of  exercising  ordinary  care. 
If,  notwithstanding  the  defective  condition  of  the  highway,  this  de- 
gree of  care  on  the  part  of  the  plaintiff  would  prevent  the  accident,  his 
and  not  the  defendant's  negligence,  though  but  for  the  latter  it  could 
not  happen,  is,  in  the  eye  of  the  law,  its  sole  cause.  Farnum  v.  Con- 
cord, 2  N.  H.  394;  Butterfield  t'.  Forrester,  11  East,  60.  In  this  class 
of  cases,  an  injury  which  the  plaintiff's  negligence  contributes  to  pro- 
duce could  not  happen  without  it.  The  not  imcommon  statement  that 
the  plaintiff  cannot  recover  if  his  negligence  contributes  in  any  degree 
to  cause  the  injury,  is  strictly  correct,  although  the  word  "  contrib- 
ute "  may  be,  as  Crompton,  J.,  in  Tuff  v.  Warman,  5  C.  B.  n.  b.  684, 
says  it  is,  "  a  very  unsafe  word  to  use,"  and  "  much  too  loose."  The 
result  is  the  same  whether  the  plaintiff  acts  with  full  knowledge  of  the 
danger,  or,  by  reason  of  a  want  of  proper  care,  fails  to  discover  it  sea- 
sonably. If  he  is  not  boimd  to  anticipate,  and  in  advance  provide  for, 
another's  negligence,  he  may  not  wilfully  or  negligently  shut  his  eyes 
against  its  possibility.  He  is  bound  to  be  informed  of  everything 
which  ordinary  care  would  disclose  to  him.  He  can  no  more  recover 
for  an  injury  caused  by  driving  into  a  dangerous  pit,  of  which  he  is 
ignorant,  but  of  which  ordinary  care  would  have  informed  him,  than 
for  one  caused  by  carelessly  driving  into  a  known  pit.  Norris  v, 
Litchfield,  35  N.  H.  271;  Clark  v,  Barrington,  41  N.  H.  44;  Tucker 
V.  Henniker,  41  N.  H.  317;  Winship  v.  Enfield,  42  N.  H.  213,  214; 
Underbill  v.  Manchester,  45  N.  H.  220. 

The  defendant's  negligence  being  found  or  conceded,  the  remaining 
question  is,  whether  the  plaintiff,  by  the  exercise  of  ordinary  care, 
could  have  escaped  the  injury.  If  he  could  not,  he  is  free  from  fault, 
and  is  entitled  to  recover.    If  he  could,  he  not  only  cannot  recover  for 


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SECT,  vni.]      NASHUA,  Ac.  CO.  V.  WORCESTER,  Ac.  CO.  291 

his  own  injury,  but  is  himself  liable  to  the  other  party,  if  the  latter  is 
injured ;  and  the  case  becomes  one  of  the  second  class,  of  which  Davies 
V.  Mann,  10  M.  &  W.  546,  is  an  instance.  The  defendant  is  liable 
here  for  the  same  reason  that,  as  plaintiff,  he  could  not  recover,  —  that 
is  to  say,  because  ordinary  care  on  his  part  would  have  prevented  the 
injury.  The  fact  that  one  has  carelessly  exposed  his  property  in  a 
dangerous  situation  does  not  absolve  his  neighbors  from  the  obligation 
of  conducting  themselves  in  regard  to  it  with  ordinary  care.  An  in- 
jury which  that  degree  of  care  would  prevent  is  caused  by  the  want  of 
it,  and  not  by  the  owner's  negligence  in  leaving  his  property  in  a 
perilous  position.  A  surgeon,  called  to  set  a  leg  carelessly  broken,  can- 
not successfully  urge,  in  answer  to  a  suit  for  mal-practice,  that  the 
patient's  negligence  in  breaking  his  leg  caused  the  crooked  or  short- 
ened limb.  Lannen  v.  Albany  Gas-light  Co.,  44  N.  Y.  459,  463;  Hib- 
bard  v,  Thompson,  109  Mass.  286,  289.  So  far  as  the  question  of  civil 
liability  is  concerned,  there  is  no  distinction,  except  it  may  be  in  the 
measure  of  damages  (Fay  v.  Parker,  53  N.  H.  342,  Bixby  v.  Dunlap, 
56  N.  H.  456),  between  wilful  and  negligent  wrongs.  One  who,  with- 
out reasonable  necessity,  kills  his  neighbor's  ox,  foimd  trespassing  in 
his  field,  is  equally  liable  whether  he  does  it  purposely  or  carelessly. 
Aldrich  v.  Wright,  53  N.  H.  398;  Mclntire  v.  Plaisted,  57  N.  H.  606; 
Cool.  Torts,  688-694.  Mann  would  be  no  more  liable  for  wilfully 
shooting  the  fettered  ass  which  Davies  has  carelessly  left  in  the  public 
highway,  than  he  is  for  the  running  over  it,  which,  by  ordinary  care, 
he  could  avoid.  The  owner's  negligence,  in  permitting  the  ox  to  stray 
and  in  leaving  the  ass  fettered  in  the  street,  although  without  it  the 
injury  would  not  happen,  is  no  more  the  cause,  in  a  legal  sense,  of 
the  negligent  than  of  the  wilful  wrong.  In  each  case  alike,  —  as  in 
that  of  the  broken  leg,  —  it  merely  affords  the  wrong-doer  an  opportu- 
nity to  do  the  mischief.  Bartlett  v.  Boston  Gas-light  Co.,  117  Mass. 
533;  Clayards  v.  Dethick,  12  Q.  B.  439,  445. 

Knowledge,  or  its  equivalent,  culpable  ignorance,  and  ignorance 
without  fault  of  the  situation,  are  circumstances  by  which,  among 
others,  the  requisite  measure  of  vigilance  is  determined.  GriflSn  v. 
Auburn,  58  N.  H.  121,  124;  Pahner  v.  Bearing,  93  N.  Y.  7;  Robin- 
son  V.  Cone,  22  Vt.  213.  The  question  of  contributory  negligence  is 
not  involved.  The  wrong,  if  any,  is  the  negligent  injury  of  property 
carelessly  exposed  to  danger.  The  only  question  is,  whether  the  de- 
fendant could  have  prevented  it  by  ordinary  care.  If  he  could  not,  he 
is  without  fault,  and  not  liable.  If  he  could,  his  negligence  is,  in  law, 
the  sole  cause  of  the  injury.  Davies  v.  Mann,  10  M.  &  W.  546; 
Radley  v.  London,  &c.  Railway,  1  App.  Ca.  754;  Mayor  of  Colchester 
V.  Brooke,  7  Q.  B.  377;  Isbell  v.  N.  Y.  &  N.  H.  Raihtjad,  27  Conn. 
393;  Trow  v.  Vt.  Central  Raikoad,  24  Vt.  487;  Harlan  v.  St.  Louis, 
&c.  Railroad,  64  Mo.  480;  Kerwhacker  v.  Cleveland,  &c.  Railroad,  3 
Ohio  St.  172. 


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292  NASHUA,  Ac.  CO.  V.  WORCESTER,  Ac.  CO.  [CHAP.  H. 

The  law  is  not  aflfected  by  the  presence  or  the  absence  of  the  par- 
ties, nor  by  the  difficulty  of  applying  it  to  complicated  facts.  To 
warrant  a  recovery  where  both  parties  are  present  at  the  time  of  the 
injury,  as  well  as  in  other  cases,  ability  on  the  part  of  the  defendant 
must  concur  with  non-ability  on  the  part  of  the  plaintiff  to  prevent  it 
by  ordinary  care.  Their  duty  to  exercise  this  degree  of  care  is  equal 
and  reciprocal;  neither  is  exonerated  from  his  obligation  by  the  pres- 
ent or  previous  misconduct  of  the  other.  The  law  no  more  holds  one 
responsible  for  an  unavoidable,  or  justifies  an  avoidable,  injury  to  the 
person  of  one  who  carelessly  exposes  himself  to  danger,  than  to  his 
property,  similarly  situated  in  his  absence.  He  who  cannot  prevent 
an  injury  negligently  inflicted  upon  his  person  or  property  by  an  in- 
telligent agent,  "  present  and  acting  at  the  time  "  (State  v.  Railroad, 
52  N.  H.  528,  557;  White  v.  Winnisinmiet  Co.,  7  Cush.  155,  157; 
Robinson  v.  Cone,  22  Vt.  213),  is  legally  without  fault,  and  it  is  im- 
material whether  his  inability  results  from  his  absence,  previous  negli- 
gence, or  other  cause.  On  the  other  hand,  his  neglect  to  prevent  it,  if 
he  can,  is  the  sole  or  co-operating  cause  of  the  injury.  No  one  can 
justly  complain  of  another's  negUgence,  which,  but  for  his  own  wrong- 
ful interposition,  would  be  harmless.    Parker  v,  Adams,  12  Met.  415. 

Cases  of  this  class  assume  a  great  variety  of  aspects.  While  all  are 
governed  by  the  fundamental  principle,  that  he  only  who  by  ordinary 
care  can  and  does  not  prevent  an  injury,  is  responsible  in  damages,  it 
is  impossible  to  formulate  a  rule  in  language  universally  applicable. 
A  statement  of  the  law  correct  in  its  application  to  one  state  of  facts 
may  be  inaccurate  when  applied  to  another.  Instructions  to  the  jury 
proper  and  sufficient  in  a  case  of  the  first  class,  would  be  not  only 
inappropriate  but  incorrect  in  one  of  the  second  class.  The  doctrine 
laid  down  in  Tuff  v.  Warman,  5  C.  B.  n.  s.  573,  585,  however  just 
and  well  suited  to  the  evidence  in  that  case,  was  held  erroneous  as 
applied  to  the  facts  in  Murphy  v.  Deane,  101  Mass.  455, 464r-466,  and, 
as  a  general  proposition,  seems  indefensible. 

An  accident  may  result  from  a  hazardous  situation  caused  by  the 
previous  negligence  of  one  or  both  parties.  If,  at  the  time  of  the 
injury,  the  defendant  is  unable  to  remove  the  danger  which  his  negli- 
gence has  created,  the  case  becomes,  in  substance,  one  of  the  first 
class;  the  plaintiff  can  recover  or  not,  according  as,  by  ordinary  care, 
he  can  or  cannot  protect  himself  from  the  natural  consequences  of  the 
situation.  If  the  plaintiff,  in  like  manner,  is  imable  to  obviate  the 
danger  which  his  prior  negligence  has  produced,  the  case  becomes, 
substantially,  one  of  the  second  class;  he  can  recover  or  not,  accord- 
ing as  the  defendant,  by  the  same  degree  of  care,  can  or  cannot  avoid 
the  natural  consequences  of  such  negligence.  If  due  care  on  the  part 
of  either  at  the  time  of  the  injury  would  prevent  it,  the  antecedent 
negligence  of  one  or  both  parties  is  immaterial,  except  it  may  be  as 
one  of  the  circumstances  by  which  the  requisite  measure  of  care  is  to 


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SECT.  Vni.]       NASHUA,  Ac  CO.  V.  WORCESTER,  Ac  CO.  293 

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  incuria,  but  not 
incuria  dans  locum  injuriae,  —  it  is  the  cause  of  the  danger;  the 
former  is  the  cause  of  the  injury.  Metropolitan  Railway  v.  Jackson, 
3  App.  Ca.  193,  198;  Dublin,  &c.  Railway  v.  Slattery,  3  App.  Ca. 
1155,  1166;  Davey  v.  London,  &c.  RaUway,  12  Q.  B.  Div.  70,  76; 
Churchill  v.  Rosebeck,  15  Conn.  359,  363-365. 

If  a  person,  who  by  his  carelessness  is  put  in  a  position  perilous  to 
himself  and  to  others,  while  in  that  position  does  all  that  a  person  of 
average  prudence  could,  he  is  guilty  of  no  wrong  towards  another  who 
embraces  the  opportunity  negligently  to  injure  him,  or  who  receives 
an  injury  which  proper  care  on  his  part  would  prevent.  It  would 
doubtless  be  esteemed  gross  carelessness  to  navigate  the  Atlantic  in  a 
vessel  without  a  rudder,  but  if  the  owner,  while  sailing  his  rudderless 
ship  with  ordinary  care,  is  negligently  run  down  by  a  steamer,  the 
latter  must  pay  the  damages,  and  can  recover  none  if  it  is  injiu^. 
Dowell  V,  Steam  Navigation  Co.,  5  E.  &  B.  195;  Haley  v,  Earle,  30 
N.  Y.  208;  Hoffman  v.  Union  Ferry  Co.,  47  N.  Y.  176.  If  the  vessel, 
by  reason  of  its  lack  of  a  rudder,  runs  upon  and  injures  the  steamer, 
both  being  in  the  exercise  of  ordinary  care  at  the  time,  the  former 
must  pay  the  damages.  He  who  by  his  negligence  has  produced  a  dan- 
gerous situation  is  responsible  for  an  injury  resulting  from  it  to  one 
who  is  without  fault. 

If,  at  the  time  of  the  injury,  each  of  the  parties,  or,  in  the  absence 
of  antecedent  negligence,  if  neither  of  them  could  prevent  it  by  ordi- 
nary care,  there  can  be  no  recovery.  The  comparatively  rare  cases  of 
simultaneous  negligence  will  ordinarily  fall  under  one  or  the  other  of 
these  heads.  If  the  accident  results  from  the  combined  effect  of  the 
negligence  of  both  parties,  that  of  neither  alone  being  suflScient  to  pro- 
duce it,  proof  by  the  plaintiff  that  due  care  on  the  part  of  the  defend- 
ant would  have  prevented  it  will  not  entitle  him  to  recover,  because 
like  care  on  his  own  part  would  have  had  the  same  effect.  If  the  mis- 
conduct of  each  party  is  an  adequate  cause  of  the  injury,  so  that  it 
would  have  occurred  by  reason  of  either's  negligence  without  the 
co-operating  fault  of  the  other,  proof  by  the  plaintiff  that  by  due  care 
he  could  not  have  prevented  it  will  not  entitle  him  to  recover,  because 
no  more  could  the  defendant  have  prevented  it  by  like  care.  Murphy 
V.  Deane,  101  Mass.  464,  465;  Churchill  v.  Holt,  131  Mass.  67.  In 
each  case  alike  they  are  equally  in  fault.  To  warrant  a  recovery,  the 
plaintiff  must  establish  both  propositions,  namely,  that  by  ordinary 
care  he  could  not,  and  the  defendant  could,  have  prevented  the  injury. 
State  V.  Railroad,  52  N.  H.  528;  Bridge  v.  Grand  Junction  Railway, 
3  M.  &  W.  244;  Dowell  v.  Steam  Navigation  Co.,  5  E.  &  B.  195;  Tuff 
V,  Warman,  6  C.  B.  n.  b.  573;  Davey  v,  London,  Ac.  Railway,  12 
Q.  B.  Div.  70;  Munroe  v.  Leach,  7  Met.  274;  Lucas  v.  New  Bedford, 


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294  GATES  V.  METROPOLITAN  ST.  RY.  CO.  [CHAP.  II. 

Ac.  Railroad,  6  Gray,  64;  Murphy  v.  Deane,  101  Mass.  465;  Hall  v. 
Ripley,  119  Mass.  135;  Button  v.  Hudson,  &c.  Railroad,  18  N.  Y. 
248;  Austin  v.  N.  J.  Steamboat  Co.,  43  N.  Y.  75;  Barker  v.  Savage, 
45  N.  Y.  194;  Cool.  Torts,  674,  675,  and  cases  cited. 

In  the  comparatively  unf requent  cases  of  the  third  class,  a  negligent 
plaintiff  can  seldom,  iif  ever,  recover.  Where  both  parties  are  care- 
less, they  are  usually,  if  not  always,  equally  in  fault;  ordinary  care  on 
the  part  of  either  would  prevent  the  injury.  Not  being  present  on  the 
occasion  of  the  accident,  neither  can,  in  general,  guard  against  the 
consequences  of  the  other's  negligence.  Blyth  v.  Topham,  Cro.  Jac. 
158;  Sybray  v.  White,  1  M.  &  W.  435;  Williams  «.  Groucott,  4  B. 

6  S.  149;  Lee  v.  Riley,  18  C.  B,  n.  s.  722;  Wilson  v.  Newberry,  L.  R. 

7  Q.  B.  31;  Lawrence  v.  Jenkins,  L.  R.  8  Q.  B.  274;  Firth  v.  Bowling 
Iron  Co.,  3  C.  P.  Div.  254;  Crowhurst  v.  Amersham  Burial  Board,  4 
Ex.  Div.  5;  Bush  v.  Brainard,  1  Cow.  78;  Lyons  v.  Merrick,  105 
Mass.  71;  Page  v.  Olcott,  13  N.  H.  399. 

If  there  are  actions  for  negligence  of  such  a  character  that  the  rights 
of  the  parties  are  not  determinable  by  the  application  of  these  princi- 
ples, the  present  case  is  not  one  of  them.  If,  notwithstanding  the 
defendants'  negligence,  the  plaintiffs,  by  ordinary  care,  could  have 
prevented  the  fright  of  the  horse,  or  its  running,  after  the  fright,  or, 
in  the  absence  of  ability  to  do  either,  if  they  could  have  avoided  the 
running  upon  and  injury  to  Clapp,  their  misconduct,  and  not  that  of 
the  defendants,  was  the  cause  of  the  accident,  and  they  caimot  recover. 
On  the  other  hand,  if  the  plaintiffs'  carelessness  consisted  solely  in 
permitting  the  horse  to  be  where  it  was  at  the  time,  and  ordinary  care 
by  the  defendants  would  have  prevented  its  fright,  or,  if  the  plaintiffs, 
by  proof  of  any  state  of  facts  competent  to  be  shown  under  the  dec- 
laration, can  make  it  appear  that  at  the  time  of  the  occurrence  they 
could  not,  and  the  defendants  could,  by  such  care  have  prevented  the 
accident,  they  are  entitled  to  recover.  Demurrer  overruled. 


GATES  V.  METROPOLITAN  STREET  RAILWAY 
COMPANY 

Supreme  Court,  Missouri,  May  21, 1902. 

Reported  in  168  Missouri  Reports,  535,  647-649. 

Marshall,  J.  .  .  .  Instructions  three  and  seven  given  for  the  defendant 
sharply  drew  a  distinction  between  the  negligence  of  the  defendant  and  the 
contributory  negligence  of  the  plaintiff.  Those  instructions  declared  the  law 
to  be  that  the  defendant  was  not  hable  unless  its  negligence  was  the  direct 
cause  of  the  injury,  while  the  plaintiff  was  not  entitled  to  recover  if  his  negli- 
gence "  but  contributes  to  the  injury."  That  is,  that  the  defendant  was  liable 
only  for  direct  negligence,  while  the  plaintiff  was  cut  off  from  recovery  if  he 
was  guilty  of  any  negligence,  however  slight  or  remote  or  indirect  it  may  have 
been. 


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SECT.  VIII.]        NIEBOEB  V.  DETROIT  ELECTRIC  RAILWAY  295 

The  law  is  that  a  defendant  is  liable  if  his  negligence  was  the  direct  and 
proximate  cause  of  the  injury,  unless  the  plaintiff  has  also  been  guilty  of  such 
negligence  as  directly  contributed  to  the  happening  of  the  injury,  and  the 
defendant  is  not  liable  no  matter  how  negligent  he  may  have  been  if  the  plain- 
tiff's negligence  has  thus  contributed  to  the  injury,  for  the  doctrine  of  compar- 
ative negligence  has  never  obtained  in  this  State.  Hurt  v.  Railroad,  94  Mo. 
264.  In  each  instance  the  negligence  and  the  contributory  negligence  must  be 
direct,  that  is,  must  have  entered  into  and  formed  a  part  of  the  efficient  cause 
of  the  accident.  Hoepper  v.  Hotel  Co.,  142  Mo.  388;  Beach  on  Contr.  Neg.  (2 
ed.),  sec.  24;  Matthews  v.  Toledo,  21  Ohio  Cir.  Ct.  Rep.  69;  Dunkman  v. 
Railroad,  16  Mo.  App.  548;  Corcoran  v.  Railroad,  105  Mo.  399;  Murray  v, 
RaihDad,  101  Mo.  236;  KeUny  v.  Raihroad,  101  Mo.  67;  Hicks  v.  Raihx)ad, 
46  Mo.  App.  403;  Pinnell  v.  Railroad,  49  Mo.  App.  170;  Meyers  v.  Railroad, 
59  Mo.  223. 

Mere  negligence,  without  any  resulting  damage,  no  more  bars  a  plaintiff's 
recovery  than  it  creates  a  liability  against  a  defendant.  Dickson  t;.  Railroad, 
124  Mo.  140.  Remote  negligence  which  does  not  become  an  efficient  cause, 
neither  creates  nor  bars  a  liability.  Kennedy  t;.  Railroad,  36  Mo.  351 ;  Meyers 
V,  Railroad,  59  Mo.  223.  It  is  oidy  where  the  plaintiff's  negligence  contributes 
directly  to  his  injury  that  it  precludes  his  recovery  therefor.  Moore  v.  Rail- 
road, 126  Mo.  265.  And  the  plaintiff's  contributory  negligence  must  mingle 
with  the  defendant's  negligence  as  a  direct  and  proximate  cause  in  order  to  bar 
a  recovery.    Nolan  v.  Shickle,  69  Mo.  336;  Frick  v.  Raihx)ad,  75  iS/lo,  542. 

These  instructions  were,  therefore,  erroneous,  and  as  the  jury  was  misdi- 
rected and  as  the  plaintiff  had  made  out  a  prima  fade  case,  he  was  entitled  to 
have  the  law  properly  declared  to  the  jury,  and  the  trial  court  did  right  in 
granting  a  new  trial.^ 


Carpenter,  J.,  m  NIEBOER  v.  DETROIT  ELECTRIC 

RAILWAY 

(1901)  128  Michigan,  486,  491,  492.* 

Carpenter,  J.  "...  The  law  by  which  it  is  determined  whether  or  not 
the  contributory  negligence  of  the  plaintiff  bars  recovery  is  very  uncertain. 
The  adjudicated  cases  are  by  no  means  harmonious,  and  there  is  an  irreconcil- 
able conflict  between  the  principles  announced  by  eminent  judges  and  the 
text-book  writers.  It  has  been  stated  that  the  plaintiff  cannot  recover  if  the 
injury  complained  of  would  not  have  occurred  without  his  negligence.  It  has 
also  been  stated  that  plaintiff's  negligence  will  not  bar  his  recovery  if  due  care 
on  the  part  of  the  defendant  would  have  prevented  the  injury.  If  the  first 
statement  is  correct,  contributory  negligence  always  prevents  a  recovery;  if 
the  second  statement  is  correct,  contributory  negligence  never  prevente  re- 
covery. The  truth  is  that  the  first  statement  can  be  correctly  applied  only  in 
cases  of  simultaneous  negligence,  as  in  the  case  of  an  injury  to  a  person  while 
crossing  a  railway  in  consequence  of  his  own  and  the  railway  company's  negli- 
gence.   The  second  statement  can  be  correctly  applied  only  in  cases  of  suc- 

*  Only  a  portion  of  the  opinion  is  printed. 

*  This  opinion  of  Carpenter,  J.,  was  given  in  the  Circuit  Court;  and  was 
quoted  by  Moore,  J.,  in  his  dissenting  opinion  in  the  Supreme  Court. 


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296  DROWN  V.  NORTHERN  OfflO  TRACTION  CO.         [CHAP.  U. 

cessive  negligence,  as  in  the  famous  Donkey  Case,  of  Davies  v.  Mann,  10  Mees. 
&  W.  546,  where  defendant  negligently  ran  into  and  injured  the  plaintiff's  don- 
key, which  plaintiff  had  negligently  permitted  to  go  unattended  on  the 
highway.  The  test  almost  universally  approved  is  whether  or  not  plaintiff's 
negligence  is  the  proximate  cause  of  his  injury.  If  it  is,  he  cannot  recover;  if  it 
is  not,  he  can.  Even  this  test  has  been  criticised  on  the  ground  that  the  term 
'  proximate  '  is  misleading.  I  think  this  criticism  just  and  important.  The 
word  *  proximate  '  is  ordinarily  used  to  indicate  the  relation  between  defend- 
ant's negligence  and  the  plaintiff's  injury.  As  so  used,  it  has  not  the  same 
meaning  that  it  has  when  used  to  indicate  the  relation  between  plaintiff's 
negligence  and  plaintiff's  injury.  To  illustrate,  suppose  in  the  case  of  Davies 
V.  Mann,  above  referred  to,  that,  as  a  result  of  the  collision  between  the  cart 
and  the  donkey,  a  third  person  had  been  injured ;  I  think  all  will  agree  that  the 
owner  of  the  donkey,  as  well  as  the  owner  of  the  cart,  would  have  been  liable. 
See  Lynch  v.  Nurdin,  1  Q.  B.  (n.  s.)  29.  And  we  have  already  seen  that  the 
negligence  of  the  owner  of  the  donkey  was  not  so  related  to  the  collision  as  to 
preclude  recovery  in  a  suit  by  him  against  the  owner  of  the  cart.  As  used  in 
relation  to  contributory  negligence,  the  term  '  proximate '  simply  means  that 
in  some  way  the  relation  between  plaintiff's  n^gence  and  his  injury  is  more 
remote  than  that  between  defendant's  negligence  and  the  injury."  ^ 


DROWN  V.  NORTHERN   OHIO   TRACTION  COMPANY 

Supreme  Court,  Ohio,  Mat  7, 1907. 

Reported  in  76  Ohio  Stale  Reports,  234. 

Action  for  damage  done  to  plaintiff's  buggy  by  an  electric  car  which  came 
up  behind  it  and  hit  it.  Answer:  denying  that  defendant  was  negligent,  and 
alleging  negligence  on  plaintiff's  part. 

On  the  trial,  it  appeared  that  Hardy,  plaintiff's  driver,  drove  upon  the 
track  without  looking  behind  to  see  if  a  car  was  coming. 

Defendant  requested  the  following  instructions:  — 

(3)  If  the  jury  find  from  the  evidence  that  the  plaintiff,  through  his  agent, 
Hardy,  and  the  defendant  were  both  negligent,  and  that  the  negligence  of 

1  "  We  shall  immediately  see,  moreover,  that  independent  negligent  acts  of  A 
and  B  may  both  be  proximate  in  respect  of  harm  suffered  by  Z,  though  either  of 
them,  if  committed  oy  Z  himself,  would  have  prevented  him  from  having  any 
remedy  for  the  other.  Thus  it  .appears  that  the  term  'proximate  *  is  not  used  in 
3e  in  fixinga  neglisent  defendant's  liability  and  a  negligent 


precisely  the  same  sense  i ^     

plaintiff's  disability."    Pollock,  Torts,  6th  ed.  447. 

"...  In  determining  whether  the  cause  of  the  accident  is  proximate  or  re- 
mote, the  same  test  must  oe  appUed  to  the  conduct  of  the  injured  party  as  is  to  be 
applied  to  the  defendant.  The  conduct  of  the  latter  cannot  be  judged  by  one  rule 
and  that  of  the  former  by  some  other  rule."  —  O'Brien,  J.,  in  Rider  v.  Syracuse 
R.  Co.,  171  N.  Y.  139,  154. 

[An  instruction  as  to  the  meaning  of  the  word  "  proximately  "  intimates]  "  that 
there  is  a  difference  between  the  meaning  of  the  word  when  applied  to  the  defend- 
ant and  when  applied  to  the  plaintiff.  'There  is  no  such  difference.  Contributory 
negligence  on  the  part  of  the  plaintiff  must  bear  the  same  proximate  relation  to  the 
result  as  the  actionable  negli^nce  of  the  defendant.  It  need  not  be  the  sole  cause, 
and  it  may  contribute  but  slightly,  but  it  must  be  a  proximate  cause  in  the  same 
sense  that  the  defendant's  negligence  must  be  proximate."  Winslow,  J.,  in 
Boyoe  v,  Wilbur  Lumber  Co.,  119  Wis.  642,  64^-650. 


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SECT.  VIII.]      DROWN  V.  NORTHERN  OHIO  TRACTION  CO.  297 

both  directly  contributed  to  cause  the  injury  complained  of  in  plaintiff's 
petition,  then  your  verdict  should  be  for  the  defendant. 

(4)  If  the  jury  find  that  the  negligence  of  both  plaintiff's  agent  and  the  de- 
fendant combined  so  as  to  directly  cause  the  injury  complained  of  by  plaintiff, 
then  your  verdict  should  be  for  the  defendant. 

These  requests  to  instruct  were  refused. 

The  court,  among  other  instructions,  charged  in  substance  as  follows:  — 

If  you  find  that  the  motorman  could,  by  the  exercise  of  ordinary  care,  have 
seen  the  plaintiff  and  stopped  the  car,  and  that  by  reason  of  the  failure  to  stop 
the  car  Hardy's  team  was  knocked  down  and  injured,  it  would  be  such  negli- 
gence on  the  part  of  the  defendant  as  would  entitle  the  plaintiff  to  recover, 
IMDvided  Hardy  was  free  from  contributory  negligence  on  his  part. 

If  Hardy  was  on  this  track  driving  south,  and  you  find  that  he  was  negligent 
in  being  on  it  as  he  was,  his  failure  to  look  or  failure  to  watch  to  avoid  injury, 
if  he  was  negligent,  would  not  prevent  him  from  recovering  in  this  suit,  if  the 
motorman,  after  discovering  him  in  that  position,  could  have,  by  the  use  of 
reasonable  and  ordinary  care,  avoided  the  injury  by  stopping  the  car.  [This 
was  a  restatement  in  concrete  form  of  an  abstract  proposition  ah*eady  stated  in 
the  charge.] 

In  the  Common  Pleas  Court  there  was  a  verdict  for  plaintiff  and  judgment 
thereon.  The  Circuit  Court  reversed  the  judgment  of  the  Common  Pleas. 
Plaintiff  brought  error.* 

Davis,  J.  Under  the  issues  in  this  case,  evidence  was  introduced  tending  to 
prove  that  the  plaintiff's  agent  was  guilty  of  negligence  directly  contributing 
to  the  injury  to  plaintiff's  property.  If  Uie  driver  of  the  plaintiff's  team,  im- 
mediately upon  entering  Mam  Street,  and  without  afterwards  looking  to  the 
north,  as  he  admits,  drove  southward  upon  the  track  until  the  car  coming  from 
the  north  overtook  and  collided  with  the  buggy,  he  was  negligent;  because  the 
street  was  open  and  unobstructed  for  from  two  hundred  to  two  hundred  and 
fifty  feet  from  the  point  at  which  he  entered  upon  it,  and  it  was  not  necessary 
for  him  to  go  upon  the  street  railway  track,  and  because,  the  night  being  dark, 
he  unnecessarily  put  himself  in  a  place  of  obvious  danger  and  continued 
therein  imtil  the  moment  of  the  accident,  without  looking  out  for  an  approach- 
ing car  or  doing  anything  whatever  to  avoid  injury,  apparently  risking  his  life 
and  the  property  of  his  principal  upon  the  presumption  that  the  defendant's 
employees  would  make  no  mistakes  nor  be  guilty  of  any  negligence.  If,  on  the 
other  hand,  he  drove  along  the  street  until  he  came  to  the  obstruction  and 
then  turned  out  upon  the  track  to  go  around  it  without  again  looking,  as  his 
own  testimony  shows  that  he  did  not,  and  was  then  almost  in  the  same  instant 
struck  by  the  car,  he  was  negligent.  Upon  either  hypothesis,  assuming  that 
the  defendant  was  negligent  in  not  keeping  a  proper  lookout,  or  was  otherwise 
not  exercising  ordinary  care  to  prevent  collision  with  persons  lawfully  on  its 
track,  the  plaintiff  could  not  recover,  if  it  should  appear  in  the  case  that  the 
negligence  of  both  is  contemporaneous  and  continuing  until  after  the  moment 
of  the  accident,  because,  in  such  case  the  negligence  of  each  is  a  direct  cause  of 
the  injury  without  which  it  would  not  have  occurred,  rendering  it  impracti- 
cable in  all  such  instances,  if  not  impossible,  to  apportion  the  responsibility 
and  the  damages.    Suppose,  for  example,  that  not  only  the  buggy  and  horses 

*  The  statement  has  been  abridged  and  the  arguments  and  part  of  the  opinion 
are  omitted. 


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298  DROWN  V.  NORTHERN  OHIO  TRACTION  CO.  [CHAP.  II, 

had  been  injured,  but  the  defendant's  car  also,  by  what  standard  could  the 
extent  of  liability  of  either  party  be  determined  ?  Timmons  v.  The  Central 
Ohio  Raihoad  Co.,  6  Ohio  St.  105;  Village  of  Conneaut  v.  Naef,  54  Ohio  St. 
529,  531.  In  short,  there  can  be  no  recovery  in  such  a  case  unless  the  whole 
doctrine  of  contributory  negligence,  a  doctrine  founded  in  reason  and  justice, 
should  be  abolished. 

Under  these  circumstances,  therefore,  it  was  not  sufficient  to  say  to  the  jury 
that  if  they  should  find  that  the  motorman  who  had  charge  of  the  car  which 
struck  the  team,  could  by  the  exercise  of  ordinary  care  have  seen  the  team  and 
could  have  stopped  the  car  and  that  by  reason  of  the  failure  to  do  so  the  team 
was  injured,  it  would  be  such  negligence  by  the  defendant  as  would  entitle  the 
plaintiff  to  recover,  provided  that  the  plaintiff's  driver  was  "  free  from  contrib- 
utory negligence."  The  defendant  had  the  right  to  have  the  jury  specifically 
instructed,  as  it  requested,  that  if  the  jury  should  find  from  the  evidence  that 
both  the  plaintiff  and  the  defendant,  through  their  agents,  were  negligent,  and 
that  the  negligence  of  both  combined  so  as  to  directly  cause  the  injury  com- 
plained of,  then  the  verdict  should  be  for  the  defendant.  The  court  refused  to 
so  instruct  the  jury,  and  the  circuit  court  correctly  held  that  the  refusal  to  so 
charge  was  erroneous. 

The  error  in  refusing  the  defendant's  request  to  charge,  was  extended  and 
made  much  more  prejudicial  when  the  court,  after  giving  instructions  as  to 
contributory  negligence  by  the  plaintiff  in  very  general  terms,  proceeded  to 
impress  upon  the  jury,  by  repetition  and  with  some  emphasis,  the  doctrine 
known  as  "  the  last  chance."  This  doctrine  is  logically  irreconcilable  with  the 
doctrine  of  contributory  negligence,  and  accordingly  it  has  been  vigorously 
criticised  and  warmy  defended.  Probably,  as  in  many  such  controversies,  the 
truth  lies  in  middle  ground;  but  it  is  certain  that  the  rule  is  applicable  only  in 
exceptional  cases,  and  the  prevalent  habit  of  incorporating  it  in  almost  every 
charge  to  the  jury  in  negligence  cases,  in  connection  with,  and  often  as  a  part 
of,  instructions  upon  the  subject  of  contributory  negligence,  is  misleading  and 
dangerous. 

This  confusion  seems  to  arise  either  from  misapprehension  of  the  law  or  a 
want  of  definite  thinking.  The  doctrine  of  the  "  last  chance  "  has  been  clearly 
defined  by  a  well-known  text-writer  as  follows:  "  Although  a  person  comes 
upon  the  track  negligently,  yet  if  the  servants  of  the  railway  company,  after 
they  see  his  danger,  can  avoid  injuring  him,  they  are  bound  to  do  so.  And, 
according  to  the  better  view  with  reference  to  injuries  to  travellers  at  highway 
crossings  —  as  distinguished  from  injuries  to  trespassers  and  bare  licensees 
upon  railway  tracks  at  places  where  they  have  no  legal  right  to  be  —  the  ser- 
vants of  the  railway  company  are  bound  to  keep  a  vigilant  lookout  in  front  of 
advancing  engines  or  trains,  to  the  end  of  discovering  persons  exposed  to  dan- 
ger on  highway  crossings;  and  the  railway  company  will  be  liable  for  running 
over  them  if,  by  maintaining  such  a  lookout  and  by  using  reasonable  care  and 
exertion  to  check  or  stop  its  train,  it  could  avoid  injury  to  them."  2  Thomp- 
son, Negligence,  sec.  1629.  The  italics  are  the  author's.  Now,  it  must  be 
apparent  upon  even  a  slight  analysis  of  this  rule  th^t  it  can  be  applied  only 
in  cases  where  the  negligence  of  the  defendant  is  proximate  and  that  of  the 
plaintiff  remote;  for  if  the  plaintiff  and  the  defendant  both  be  negligent  and 
the  negligence  of  both  be  concurrent  and  directly  contributing  to  produce  the 
accident,  then  the  case  is  one  of  contributory  negligence  pure  and  simple.  But 
if  the  plaintiff's  negligence  merely  put  him  in  the  place  of  danger  and  stopped 


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SECT.  VIII.]        FULLER  V.  ILLINOIS  CENTRAL  R.  R.  CO.  299 

there,  not  actively  continuing  until  the  moment  of  the  accident,  and  the  de- 
fendant either  knew  of  his  danger,  or  by  the  exercise  of  such  diligence  as  the 
law  imposes  on  him  would  have  known  it,  then,  if  the  plaintiff's  negligence 
did  not  concurrently  combine  with  defendant's  negligence  to  produce  the 
injury,  the  defendant's  negligence  is  the  proximate  cause  of  the  injury  and 
that  of  the  plaintiff  is  a  remote  cause.  This  is  all  there  is  of  the  so-called  doc- 
trine of  "  the  last  clear  chance."  A  good  illustration  is  found  in  the  case  of 
Railroad  Co.  v.  Kassen,  49  Ohio  St.  230.  Kassen  walked  through  the  rear  car 
of  the  train  on  which  he  was  a  passenger  to  the  rear  platform,  from  which  he 
either  stepped  off  or  fell  off  upon  the  track,  where  he  lay  for  about  two  hours, 
when  he  was  run  over  by  another  train.  It  was  held  that,  although  Kassen 
may  have  been  negligent  in  going  upon  the  rear  platform  and  stepping  or  fall- 
ing off,  yet  since  the  railroad  company  knew  of  his  peril  and  had  ample  time 
to  remove  him  or  to  notify  the  trainmen  on  the  later  train,  its  negligence  in  not 
doing  so  was  the  proximate  cause  of  Kassen's  death  and  the  negligence  of 
Kassen  was  remote.  In  that  case  the  proximate  cause  and  the  remote  cause 
were  so  clearly  distinguishable,  and  it  is  so  very  evident  from  the  opinion  and 
the  syllabus  that  this  distinction  was  the  real  ground  of  the  judgment  of  the 
court,  that  it  is  somewhat  surprising  that  the  doctrine  of  last  chance  as  stated 
in  that  case  should  have  been  so  often  misinterpreted  as  a  qualification  of  the 
doctrine  of  contributory  negligence. 

It  is  clear,  then,  that  the  last  chance  rule  should  not  be  given  as  a  hit  or  miss 
rule  in  every  case  involving  negligence.  It  should  be  given  with  discrimina- 
tion. Since  the  plaintiff  can  recover  only  upon  the  allegations  of  his  petition, 
if  there  is  no  charge  in  the  petition  that  the  defendant  after  having  notice  of 
the  plaintiff's  peril  could  have  avoided  the  injury  to  plaintiff,  and  there  is  no 
testimony  to  support  such  charge,  the  giving  of  such  a  charge  would  be  erro- 
neous. There  is  no  such  allegation  in  the  petition  in  this  case.  But  further, 
there  is  testimony  tending  to  prove  that  the  plaintiff's  team  was  driven  upon 
the  street  railway  track  in  the  night  time;  ahead  of  the  car,  and  that  it  con- 
tinued on  the  track  for  a  distance  of  two  himdred  and  fifty  feet  until  struck  by 
the  car,  without  taking  any  precaution  to  avoid  accident.  Assuming  that  the 
defendant  was  negligent  in  not  seeing  the  buggy  on  the  track  and  in  not  avoid- 
ing the  accident,  yet  the  plaintiff's  negligence  was  continuous  and  was  con- 
current at  the  very  moment  of  the  collision.  It  im)ximately  contributed  to 
the  collision,  for  without  it  the  collision  would  not  have  occurred.  There  was 
no  new  act  of  negligence  by  the  defendant,  which  was  independent  of  the  con- 
current n^gence  and  which  made  the  latter  remote.  Therefore  there  was 
no  place  in  the  case  for  the  doctrine  of  "  the  last  clear  chance." 

[Remainder  of  opinion  omitted.]  Judgment  of  Circuit  Court  affirmed. 


McLain,  J.,  IN  FULLER  v.  ILLINOIS  CENTRAL  RAIL- 
ROAD COMPANY 
(1911)  100  Mi89i88ippi,  706,  716. 

McLain,  J.  .  .  .  The  rule  is  settled  beyond  controversy  or  doubt,  first 
that  all  that  is  required  of  the  railroad  company  as  against  a  trespasser  is  the 
abstention  from  wanton  or  willful  injury,  or  that  conduct  which  is  char- 
acterized as  gross  negligence;  second,  although  the  injured  party  may  be 
guilty  of  contributory  negligence,  yet  this  is  no  defense  if  the  injury  were  will- 


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300  FULLER  V.  ILLINOIS  CENTRAL  R.  R.  CO.         [CHAP.  U. 

fully,  wantonly,  or  recklessly  done  or  the  party  inflicting  the  injury  was  guilty 
of  such  conduct  as  to  characterize  it  as  gross;  and,  third,  that  the  contribu- 
tory negligence  of  the  prxty  injured  will  not  defeat  the  action  if  it  is  shown 
that  the  defendant  might  by  the  exercise  of  reasonable  care  and  prudence  have 
avoided  the  consequence  of  the  injured  party's  negligence.  This  last  principle 
is  known  as  the  doctrine  of  the  "  last  clear  chance."  The  origin  of  this  doc- 
trine is  found  in  the  celebrated  case  of  Davies  v,  Mann,  10  Mees.  &  W.  545. 
...  It  is  impossible  to  follow  this  case  through  its  numerous  citations  in 
nearly  every  jurisdiction  subject  to  Anglo-American  jurisprudence.  For  the 
present  it  will  be  sufficient  to  say  that  the  principle  therein  announced  has 
met  with  practically  almost  universal  favor.  It  has  been  severely  criticised 
by  some  text-writers.  .  .  .  The  law  as  enunciated  in  that  case  has  come  to 
stay.  .  .  . 

An  analytical  examination  of  the  adjudged  cases  upon  this  subject  wiU  dem- 
onstrate the  correctness  of  the  above  analysis,  and,  in  addition,  establish  the 
soundness  and  technical  accuracy  annoimoed  in  Davies  v.  Mann,  supra.  This 
case  has  been  criticised  most  severely  ...  by  courts  of  high  authority,  but 
these  courts  have  utterly  and  entirely  failed  to  appreciate  the  base  upon  which 
the  principle  is  bottomed,  and  in  repudiating  the  principle  do  so  upon  the  idea 
that  Davies  v,  Mann  establishes  the  much-abused  comparative  negligence  doc- 
trine, a  doctrine  repudiated  by  this  court,  but  established  in  this  state  by 
Laws  1910,  ch.  135,  p.  125.  (But  this  statute  has  no  reference  to  the  instant 
case  because  passed  subsequent  to  the  injuries  complained  of.)  In  order  for 
the  injured  party's  negligence  to  bar  recovery,  all  of  the  authorities  hold  that 
it  must  be  the  proximate  cause;  otherwise,  it  is  not  contributory.  Now,  when 
it  is  fully  understood  that  the  negligence  of  the  injured  party  must  be  the 
proximate  cause  in  order  to  bar  the  remedy  (and,  as  said  above,  all  authorities 
everywhere,  ancient  and  modem,  so  affinn),  the  principle  announced  in 
Davies  v,  Mann  must,  from  necessity,  be  the  correct  and  true  rule.  If  the 
proximate  and  immediate  cause  of  tie  injury  —  the  causa  causans  —  is  the 
controlling  and  determining  factor  in  ascertaining  whether  the  injured  party 
has  the  right  to  recover  or  whether  the  injuring  party  is  not  liable,  then  it  must 
follow,  as  night  the  day,  that  the  party  who  has  the  last  opportimity  to  avoid 
the  injury  is  the  one  upon  whom  the  blame  shall  fall.  To  express  the  idea 
differently:  If  the  injured  party's  negligence  be  remote,  and  not  proximate, 
he  can  recover  against  the  party  who  is  guilty  of  negligence  proximately  con- 
tributing or  causing  the  injury.  The  North  Carolina  courts  have  perhaps 
more  satisfactorily  and  more  clearly  elucidated  this  question  than  have  any 
opinions  that  have  come  under  the  writer's  eye.  In  Smith  v.  N.  &  S.  R.R.  Co., 
114  N.  C.  728,  19  S.  E.  863,  923,  25  L.  R,  A.  287,  it  is  said  that  the  rule  in 
Davies  v,  Mann  simply  furnishes  a  means  for  ascertaining  whether  the  plain- 
tiff's negligence  is  a  remote  or  proximate  cause  of  the  injury;  that,  before  the 
introduction  of  this  rule,  any  negligence  on  the  part  of  the  plaintiff,  which  in 
any  degree  contributes  to  the  injury,  was  judicially  treated  as  the  proximate 
cause,  and  constituted  contributory  negligence  which  barred  recovery.  The 
same  is  clearly  stated  in  Nashua  Iron  &  Steel  Co.  v.  W.  &  N.  R.  R.  Co.,  62 
N.  H.  159, 163,  et  seq.  The  antecedent  negligence  of  the  injured  party,  having 
been  thus  relegated  to  the  position  of  a  condition  or  remote  cause  of  the  acci- 
dent, it  cannot  be  regarded  as  contributory,  since  it  is  well  established  that 
negligence,  in  order  to  be  contributory,  must  be  at  least  one  of  the  proximate 
causes.^ 

»  Compare  Rider  v.  Syracuse  R.  Co.,  171  N.  Y.  139. 


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SECT.  VIII.]       BUTTERLY  V.  MAYOR  OP  DROGHEDA  301 

Lord  O'Brien,  C.  J.,  in  BUTTERLY  v.  MAYOR  OF 
DROGHEDA 

[1907]  2  IrUh  Reports,  134,  137. 

Lord  G'Brebn,  L.  C.  J.:  — 

The  facts  which  give  rise  to  the  controversy  we  have  to  determine,  in  this 
case,  are  comprised  within  a  narrow  compass.  The  plaintiff,  on  a  Saturday 
morning,  was  coming  into  the  town  of  Drogheda  in  a  car  driven  by  himself. 
Coming  near  the  town  he,  as  he  alleged,  was  overtaken  by  the  horse  and  car  of 
Mrs.  Morgan.  She  desired  to  pass.  He  says  he  made  way  for  her,  and,  in 
doing  so,  ran  against  a  heap  of  stones  on  the  road,  and  his  car  was  upset  and 
he  was  injured.  It  appears  that  there  were  two  heaps  of  stones  on  the  road. 
They  had  been,  inmiediately  before  the  collision,  thrown  on  the  road  in  order 
that  they  might  be  spread  on  the  road.  The  man  who  brought  the  load,  and 
had  thrown  them  on  the  road,  was  a  servant  of  the  defendants.  The  intention 
was  to  spread  them  immediately  on  the  road.  The  man  who  brought  them 
was  in  fact,  at  the  time  of  the  accident,  engaged  in  spreading  the  heap  next  the 
town,  some  little  distance  from  the  heap  where  the  accident  occurred.  Now 
the  first  heap,  where  the  accident  occurred,  was  placed  on  the  road  in  such  a 
position  that  there  was  between  it  and  the  right  side  of  the  road  a  space  of 
12  feet,  and  between  this  heap  and  the  left  side  of  the  road,  6  feet.  That  is  to 
say,  on  the  right  side  there  was  a  space  sufficient  for  two  cars  to  pass  simul- 
taneously, and  on  the  left  a  space  for  one  car  to  pass.  The  plaintiff's  case  was 
that,  Mrs.  Morgan  overtaking  him,  he  made  room  for  her,  pulled  to  the  left, 
and  without  any  default  of  his,  his  car  ran  upon  the  heap  and  was  capsized. 
His  case  was  that  Mrs.  Morgan  caught  him  exactly  where  the  heap  was,  and, 
in  endeavoring  to  avoid  her,  and  without  any  default  or  negligence  on  his  part, 
the  accident  occurred.  Now,  three  questions  were  left  to  the  jury:  — 

1.  Were  the  defendants,  by  their  workmen,  guilty  of  negligence  ?    Yes. 

2.  Was  the  plaintiff  guilty  of  negligence  ?    Yes. 
And  if  so  — 

3.  Could  the  defendants,  by  the  exercise  of  ordinary  care,  have  avoided 
the  consequence  of  the  plaintiff's  negligence  ?    Yes. 

I  have  invariably  refused,  in  these  negUgence  cases,  to  leave  questions  in 
this  form  to  a  jury.  This  formula  appears  to  me  calculated  to  perplex  and 
embarrass  a  jury.  No  doubt  this  formula  is  used,  and  judges  do  their  best  to 
explain  it,  but  I  fear  that  when  juries  take  up  the  questions  in  the  jury-room, 
the  explanation  has  not  the  desired  effect.  Chief  Justice  Monahan  consist- 
ently refused  to  put  the  questions  in  this  shape  to  the  jury.  I  have  always 
tried  these  cases  on  two  questions:  1st,  Were  the  defendants  guilty  of  ne^- 
gence  7  and,  2d,  if  so,  was  the  defendant's  negligence  the  real,  chrect,  and 
immediate  cause  of  the  misfortune?  Now,  the  jury  in  the  present  case 
answered  the  questions  submitted  to  them  in  the  way  I  have  read.  I  am  of 
opinion  that  the  answer  to  the  question  finding  that  the  plaintiff  was  guilty  of 
negligence,  determines  the  matter  in  favor  of  the  defendants.  It  is  quite 
plain,  in  my  opinion,  that  his  negligence  was  a  direct  contributory  cause  of  the 
accident.  It  was  a  cause  which  brought  him  on  the  heap  of  stones.  Assuming 
that  there  was  negligence  on  the  part  of  the  defendants  in  having  the  stones 
there,  still  his  negligence  must  have  contributed  to  his  running  up  against 


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302  BRITISH  COLUMBIA  RY.  CO.  V.  LOACH  [CHAP.  H. 

them.  He  either  did  not  keep  a  sufficient  look-out,  or  his  unskilful  driving 
brought  him  on  the  stones.  Getting  on  the  stones^  through  negligence,  was  at 
least  a  contributory  cause  of  the  accident.  It  directly  contributed  to  the 
accident.  If  there  be  two  causes  directly  contributing  to  the  accident,  one 
the  negligence  of  the  defendant  and  the  other  the  negligence  of  the  plaintiff, 
the  result  is  a  verdict  for  the  defendant. 


BRITISH  COLUMBIA  ELECTRIC  RAILWAY  COMPANY 

V.  LOACH 

In  the  Privy  Council,  July  26,  1915. 
Reported  in  [1916]  Appeal  Cases,  719. 

Lord  Sumner.  This  is  an  appeal  from  a  judgment  of  the  Court  of 
Appeal  of  British  Columbia  in  favor  of  the  administrator  of  the  estate 
of  Benjamin  Sands,  who  was  run  down  at  a  level  crossing  by  a  car  of 
the  appellant  railway  company  and  was  killed.  One  Hall  took  Sands 
with  him  in  a  cart,  and  they  drove  together  on  to  the  level  crossing, 
and  neither  heard  nor  saw  the  approaching  car  till  they  were  close  to 
the  rails  and  the  car  was  nearly  on  them.  There  was  plenty  of  light 
and  there  was  no  other  traffic  about.  The  verdict,  though  rather 
curiously  expressed,  clearly  finds  Sands  guilty  of  negligence  in  not 
looking  out  to  see  that  the  road  was  clear.  It  was  not  suggested  in 
argumeift  that  he  was  not  under  a  duty  to  exercise  reasonable  care, 
or  that  there  was  not  evidence  for  the  jury  that  he  had  disregarded 
it.  Hall,  who  escaped,  said  that  they  went  "  right  on  to  the  track," 
when  he  heard  Sands,  who  was  sitting  on  his  left,  say  "  Oh,"  and 
looking  up  saw  the  car  about  fifty  yards  off.  He  says  he  could  then  do 
nothing,  and  With  a  loaded  wagon  and  horses  going  two  or  three  miles 
an  hour  he  probably  could  not.  It  does  not  seem  to  have  been  sug- 
gested that  Sands  could  have  done  any  good  by  trying  to  jump  off 
the  cart  and  clear  the  rails.  The  car  knocked  cart,  horses,  and  men 
over,  and  ran  some  distance  beyond  the  crossing  before  it  could  be 
stopped.  It  approached  the  crossing  at  from  thirty-five  to  forty-five 
miles  an  hour.  The  driver  saw  the  horses  as  they  came  into  view 
from  behind  a  shed  at  the  crossing  of  the  road  and  the  railway,  when 
they  would  be  ten  or  twelve  feet  from  the  nearest  rail,  and  he  at  once 
applied  his  brake.  He  was  then  400  feet  from  the  crossing.  If  the 
brake  had  been  in  good  order  it  should  have  stopped  the  car  in  300 
feet.  Apart  from  the  fact  that  the  car  did  not  stop  in  time,  but 
overran  the  crossing,  there  was  evidence  for  the  jury  that  the  brake 
was  defective  and  inefficient  and  that  the  car  had  come  out  in  the 
morning  with  the  brake  in  that  condition.  The  jury  foimd  that  the 
car  was  approaching  at  an  excessive  speed  and  should  have  been 
brought  under  complete  control,  and  although  they  gave  as  their 
reason  for  saying  so  the  presence  of  possible  passengers  at  the  str- 


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SECT.  Vni.]      BRITISH  COLUMBIA  RY.  CO.  V.  LOACH  303 

tion  by  the  crossing,  and  not  the  possibility  of  vehicles  being  on  the 
road,  there  can  be  no  mistake  in  the  matter,  and  their  finding  stands. 
It  cannot  be  restricted,  as  the  trial  judge  and  the  appellants  sought  to 
restrict  it,  to  a  finding  that  the  speed  was  excessive  for  an  ill-braked 
car,  but  not  for  a  properly-braked  car,  or  to  a  finding  that  there  was 
no  negligence  except  the  "  original "  negligence  of  sending  the  car 
out  ill-equipped  in  the  morning. 

Clearly  if  the  deceased  had  not  got  on  to  the  line  he  would  have 
suffered  no  harm,  in  spite  of  the  excessive  speed  and  the  defective 
brake,  and  if  he  had  kept  his  eyes  about  him  he  would  have  perceived 
the  approach  of  the  car  and  would  have  kept  out  of  mischief.  If  the 
matter  stopped  there,  his  administrator's  action  must  have  failed,  for 
he  would  certainly  have  been  guilty  of  contributory  negligence.  He 
would  have  owed  his  death  to  his  own  fault,  and  whether  his  negli- 
gence was  the  sole  cause  or  the  cause  jointly  with  the  railway  com- 
pany's negligence  would  not  have  mattered. 

It  was  for  the  jury  to  decide  which  portions  of  the  evidence  were 
true>  and,  under  proper  direction,  to  draw  their  own  inferences  of  fact 
from  such  evidence  as  they  accepted.  No  complaint  was  made  against 
the  summing-up,  and  there  has  been  no  attempt  to  argue  before  their 
Lordships  that  there  was  not  evidence  for  the  jury  on  all  points.  If 
the  jiuy  accepted  the  facts  above  stated,  as  certainly  they  well  might 
do,  there  was  no  further  negligence  on  the  part  of  Sands  after  he 
looked  up  and  saw  the  car,  and  then  there  was  nothing  that  he  could 
do.  There  he  was,  in  a  position  of  extreme  peril  and  by  his  own 
fault,  but  after  that  he  was  guilty  of  no  fresh  fault.  The  driver  of  the 
car,  however,  had  seen  the  horses  some  perceptible  time  earlier,  had 
duly  appUed  his  brakes,  and  if  they  had  been  ^ective  he  could,  as  the 
jmy  found,  have  puUed  up  in  time.  Indeed,  he  would  have  had  100 
feet  to  spare.  If  the  car  was  160  feet  off  when  Sands  looked  up  and 
said  "  Oh,"  then  each  had  the  other  in  view  for  fifty  feet  before  the 
car  reached  the  point  at  which  it  should  have  stopped.  It  was  the 
motorman's  duty,  on  seeing  the  peril  of  Sands,  to  make  a  reasonable 
use  of  his  brakes  in  order  to  avoid  injuring  him,  although  it  was  by 
his  own  negligence  that  Sands  was  in  danger.  Apparently  he  did  his 
best  as  things  then  were,  but  partly  the  bad  brake  and  partly  the 
excessive  speed,  for  both  of  which  the  appellants  were  responsible, 
prevented  him  from  stopping,  as  he  could  otherwise  have  done.  On 
these  facts,  which  the  jury  were  entitled  to  accept  and  appear  to  have 
accepted,  only  one  conclusion  is  possible.  What  actually  killed  Sands 
was  the  negligence  of  the  railway  company,  and  i^t  his  own,  though 
it  was  a  close  thing.  ^ 

Some  of  the  judges  in  the  Courts  below  appear  to  have  thought  that 
because  the  equipment  of  the  car  with  a  defective  brake  was  the  orig- 
inal cause  of  the  collision,  and  could  not  have  been  remedied  after 
Sands  got  on  the  line,  no  account  should  be  taken  of  it  in  considering 


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304  BRITISH  COLUMBIA  RY.  CO.  V.  LOACH  [CHAP.  H. 

the  motorman's  failure  to  avoid  the  collision  after  he  knew  that  Sands 
was  in  danger.  "  You  cannot  charge  up  the  same  negUgence  under 
different  heads/'  said  Murphy,  J.,  at  the  trial;  "you  cannot  charge  it 
up  twice."  "On  the  question  of  ultimate  n^ligence,"  he  observed, 
"  that  negligence  must  arise  on  the  conditions  as  existing  at  the  time 
of  the  accident.  It  would,  of  course,  be  absurd  to  say  the  company 
had  any  opportunity  between  the  time  that  this  rig  appeared  upon  the 
track  and  the  collision  to  remedy  any  defect  in  the  brake.  If  there 
was  such  a  defect  I  think  it  was  original  negligence  and  not  what  may 
possibly  be  termed  '  ultimate  negligence.'  " 

In  the  Court  of  Appeal  Macdonald,  C.  J.  A.,  deUvering  a  dissentient 
judgment  in  favor  of  the  present  appellants,  said:  "  Where  one  party 
negligently  approaches  a  point  of  danger,  and  the  other  party,  with 
like  obligation  to  take  care,  negligently  approaches  the  same  point  of 
danger,  if  there  arises  a  situation  which  could  be  saved  by  one  and  not 
by  the  other,  and  the  former  then  negligently  fail  to  use  the  means  in 
his  power  to  save  it,  and  injury  is  caused  to  the  latter,  that  failure  is 
designated  ultimate  negligence,  in  the  sense  of  being  the  proximate 
cause  of  the  injiuy.  In  this  case  it  is  sought  to  carry  forward,  as  it 
were,  an  anterior  negligent  omission  of  the  defendants,  though  con- 
tinuing, it  is  true,  up  to  the  time  of  the  occurrence,  and  to  assign  to  it 
the  whole  blame  for  the  occurrence,  although  by  no  effort  of  the 
defendants  or  their  servants  could  the  situation  at  that  stage  have 
been  saved." 

So,  too,  McPhillips,  J.  A.,  also  dissenting,  said:  "  Upon  the  evi- 
dence, whether  it  was  because  of  defective  brakes  or  any  of  the  acts  of 
negligence  foimd  against  the  defendants,  none  of  them  were  acts  of 
negligence  arising  after  the  act  of  contributory  negUgence  of  the  de- 
ceased, and  cannot  be  held  to  be  acts  of  negligence  which,  notwith- 
standing the  later  negligence  of  the  deceased,  warrant  judgment 
going  for  the  plaintiff.  .  .  .  The  motorman  after  he  saw  the  vehicle 
could  not  have  stopped  the  car  .  .  .  therefore,  as  nothing  could  be 
then  done  by  the  motorman  to  remedy  the  ineffective  brake,  the  want 
of  care  of  the  deceased  was  the  direct  and  effective  contributory  cause 
of  the  accident  resulting  in  his  death." 

These  considerations  were  again  ui^ed  at  their  Lordships'  bar  under 
somewhat  different  forms.  It  was  said  (1)  that  the  negligence  relied 
on  as  an  answer  to  contributory  negligence  must  be  a  new  negli- 
gence, the  initial  negligence  which  founded  the  cause  of  action  being 
spent  and  disposed  of  by  the  contributory  negligence.  Further,  it 
was  said  (2)  that  if  the  defendants'  negligence  continued  up  to  the 
moment  of  the  collision,  so  did  the  deceased's  contributory  negU- 
gence, and  that  this  series,  so  to  speak,  of  repUcations  and  rebutters 
finally  merged  in  the  accident  without  the  deceased  ever  having  been 
freed  from  the  legal  consequence  of  his  own  negUgence  having  con- 
tributed to  it. 


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SECT.  Vin.]      BRITISH  COLUMBIA  RY.  CO.  V.  LOACH  305 

The  last  point  fails  because  it  does  not  correspond  with  the  fact. 
The  consequences  of  the  deceased's  contributory  negligence  continued, 
it  is  true,  but,  after  he  had  looked,  there  was  no  more  negligence,  for 
there  was  nothing  to  be  done,  and,  as  it  is  put  in  the  classic  judgment 
in  Tuflf  V.  Warman,  (1868)  6  C.  B.  (n.  s.)  573,  585,  his  contributory- 
negligence  will  not  disentitle  him  to  recover  "  if  the  defendant  might 
by  the  exercise  of  care  on  his  part  have  avoided  the  consequences  of 
the  neglect  or  carelessness  of  the  plaintiflF." 

As  to  the  former  point,  there  seems  to  be  some  ambiguity  in  the 
statement.  It  may  be  convenient  to  use  a  phraseology  which  has  been 
current  for  some  time  in  the  Canadian  Courts,  especially  in  Ontario, 
though  it  is  not  precise.  The  negligence  which  the  plaintiff  proves  to 
launch  his  case  is  called  "  primary  "  or  "  original  "  negligence.  The 
defendant  may  answer  that  by  proving  against  the  plaintifif  "  contrib- 
utory negligence."  If  the  defendant  fails  to  avoid  the  consequences 
of  that  contributory  negligence  and  so  brings  about  the  injury,  which 
he  could  and  ought  to  have  avoided,  this  is  called  "  ultimate  "  or 
"  resultant "  negligence.  The  opinion  has  been  several  times  ex- 
pressed, in  various  forms,  that  "  original  "  negligence  and  "  ultimate  " 
negligence  are  mutually  exclusive,  and  that  conduct  which  has  once 
been  relied  on  to  prove  the  first  cannot  in  any  shape  constitute  proof 
of  the  second. 

Here  lies  the  ambiguity.  If  the  "  primary  *'  negligent  act  is  done 
and  over,  if  it  is  separated  from  the  injury  by  the  intervention  of  the 
plaintiflf's  own  negligence,  then  no  doubt  it  is  not  the  "  ultimate  " 
negligence  in  the  sense  of  directly  causing  the  injury.  If,  however, 
the  same  conduct  which  constituted  the  primary  negligence  is  repeated 
or  continued,  and  is  the  reason  why  the  defendant  does  not  avoid  the 
consequences  of  the  plaintiff's  negligence  at  and  after  the  time  when 
the  duty  to  do  so  arises,  why  should  it  not  be  also  the  "  ultimate '' 
negligence  which  makes  the  defendant  liable  ? 

This  matter  was  much  discussed  in  Brenner  v.  Toronto  Ry.  Co., 
13  Ont.  L.  R.  423,  when  Anglin,  J.,  delivered  a  very  valuable  judg- 
ment in  the  Divisional  Court.  The  decision  of  the  Divisional  Court 
was  reversed  on  appeal,  15  Ont.  L.  R.  195,  (1908)  40  Can.  S.  C.  R.  540, 
but  on  other  grounds,  and  in  their  comments  on  the  decision  of  the 
Divisional  Court,  Duff,  J.,  in  the  Supreme  Court,  and  also  Chancellor 
Boyd  in  Rice  v,  Toronto  Ry.  Co.,  (1910)  22  Ont.  L.  R.  446,  450,  and 
Hunter,  C.  J.,  m  Snow  v.  Crow's  Nest  Pass  Coal  Co.,  (1907)  13  B.  C. 
Rep.  145, 155,  seem  to  have  missed  the  point  to  which  Anglin,  J.,  had 
specially  addressed  himself. 

The  facts  of  that  case  were  closely  similar  to  those  in  the  present 
appeal,  and  it  was  much  relied  on  in  argument  in  the  comii  below. 
Anglin,  J.,  following  the  decision  in  Scott  v.  Dublin  and  Wicklow 
Ry.  Co.,  (1861)  11  Ir.  C.  L.  Rep.  377,  394,  observed  as  follows,  13 
Ont.  L.  R.  437,  439,  440:  "  Again,  the  duty  of  the  defendants  to  the 


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306  BRITISH  COLUBfBIA  BY.  CO.  V.  LOACH  [CHAP.  U. 

plaintiflF,  breach  of  which  would  constitute  '  ultimate '  negligence, 
only  arose  when  her  danger  was  or  should  have  been  apparent.  Prior 
to  that  moment  there  was  an  abstract  obUgation  incumbent  upon 
them  to  have  their  car  equipped  with  eflScient  emergency  appUances 
ready  and  in  condition  to  meet  the  requirements  of  such  an  occasion. 
Had  an  occasion  for  the  use  of  emergency  appliances  not  arisen,  failure 
to  fulfil  that  obligation  would  have  given  rise  to  no  cause  of  action. 
Upon  the  emergency  arising,  that  abstract  obligation  became  a  con- 
crete duty  owing  to  the  plaintiff  to  avoid  the  consequences  of  her 
neghgence  by  the  exercise  of  ordinary  care.  .  .  .  Up  to  that  moment 
there  was  no  such  breach  of  duty  to  the  plaintiff.  In  that  sense  the 
failure  of  the  defendants  to  avoid  the  mischief,  though  the  result  of  an 
antecedent  want  of  care,  was  n^ligence  which  occurred,  in  the  sense 
of  becoming  operative,  immediately  after  the  duty,  in  the  breach  of 
which  it  consisted,  arose.  It  effectively  intervened  between  the  negli- 
gence of  the  plaintiff  and  the  happening  of  the  casualty.  But  there  is 
a  class  of  cases  where  a  situation  of  imminent  peril  has  been  created, 
either  by  the  joint  negligence  of  both  plaintiff  and  defendant,  or  it 
may  be,  by  that  of  the  plaintiff  alone,  in  which,  after  the  danger  is  or 
should  be  apparent,  there  is  a  period  of  time,  of  some  perceptible 
dm-ation,  during  which  both  or  either  may  endeavor  to  avert  the 
impending  catastrophe.  ...  If,  notwithstanding  the  difficulties  of 
the  situation,  efforts  to  avoid  injury  duly  made  would  have  been  suc- 
cessful, but  for  some  self-created  incapacity  which  rendered  such 
efforts  inefficacious,  the  negligence  that  produced  such  a  state  of  dis- 
ability is  not  merely  part  of  the  inducing  causes  —  a  remote  cause  or 
a  cause  merely  sine  qtia  rum  —  it  is,  in  very  truth,  the  efficient,  the 
proximate,  the  decisive  cause  of  the  incapacity,  and  therefore  of  the 
mischief.  •  .  .  Negligence  of  a  defendant  incapacitating  him  from 
taking  due  care  to  avoid  the  consequences  of  the  plaintiff's  negligence, 
may,  in  some  cases,  though  anterior  in  point  of  time  to  the  plaintiff's 
negl^ence,  constitute  *  ultimate  '  negligence,  rendering  the  defendant 
liable  notwithstanding  a  finding  of  contributory  negligence  of  the 
plaintiff.  ..." 

Their  Lordships  are  of  opinion  that,  on  the  facts  of  the  presen 
case,  the  above  observations  apply  and  are  correct.  Were  it  otherwise 
the  defendant  company  would  be  in  a  better  position,  when  they  had 
supplied  a  bad  brake  but  a  good  motorman,  than  when  the  motorman 
was  careless  but  the  brake  efficient.  If  the  superintendent  engineer 
sent  out  the  car  in  the  morning  with  a  defective  brake,  which,  on  see- 
ing Sands,  the  motorman  strove  to  apply,  they  would  not  be  liable, 
but  if  the  motorman  failed  to  apply  the  brake,  which,  if  applied, 
would  have  averted  the  accident,  they  would  be  liable. 

The  whole  law  of  neghgence  in  accident  cases  is  now  very  well 
settled,  and,  beyond  the  difficulty  of  explaining  it  to  a  jiuy  in  terms  of 
the  decided  cases,  its  application  is  plain  enough.    Many  persons  are 


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SECT.  VIII.]      BRITISH  COLUMBIA  RY.  CO.  V.  LOACH  307 

apt  to  think  that,  in  a  case  of  contributory  negligence  like  the  present, 
the  injured  man  deserved  to  be  hurt,  but  the  question  is  not  one  of 
desert  or  the  lack  of  it,  but  of  the  cause  legally  responsible  for  the  in- 
jury. However,  when  once  the  steps  are  followed  the  jury  can  see 
what  they  have  to  do,  for  the  good  sense  of  the  rules  is  apparent.  The 
inquiry  is  a  judicial  inquiry.  It  does  not  always  follow  the  historical 
method  and  begin  at  the  beginning.  Very  often  it  is  more  convenient 
to  begin  at  the  end,  that  is  at  the  accident,  and  work  back  along  the 
line  of  events  which  led  up  to  it.  The  object  of  the  inquiry  is  to  fix 
upon  some  wrong-doer  the  responsibility  for  the  wrongful  act  which 
has  caused  the  damage.  It  is  in  search  not  merely  of  a  causal  agency 
but  of  the  responsible  agent.  When  that  has  been  done,  it  is  not  neces- 
sary to  pursue  the  matter  into  its  origins;  for  judicial  purposes  they 
are  remote.  Till  that  has  been  done  there  may  be  a  considerable  se- 
quence of  physical  events,  and  even  of  acts  of  responsible  human 
beings,  between  the  damage  done  and  the  conduct  which  is  tortious 
and  is  its  cause.  It  is  surprising  how  many  epithets  eminent  judges 
have  applied  to  the  cause,  which  has  to  be  ascertained  for  this  judicial 
purpose  of  determining  liability,  and  how  many  more  to  other  acts  and 
incidents,  which  for  this  purpose  are  not  the  cause  at  all.  "  Efficient 
or  effective  cause,"  "  real  cause,"  "  proximate  cause,"  "  direct  cause," 
"  decisive  cause,"  "  immediate  cause,"  "  causa  causans,"  on  the  one 
hand,  as  against,  on  the  other,  "  causa  sine  qua  non,"  "  occasional 
cause,"  "  remote  cause,"  "  contributory  cause,"  "  inducing  cause," 
"  condition,"  and  so  on.  No  doubt  in  the  particular  cases  in  which 
they  occur  they  were  thought  to  be  useful  or  they  would  not  have 
been  used,  but  the  repetition  of  terms  without  examination  in  other 
cases  has  often  led  to  confusion,  and  it  might  be  better,  after  pointing 
out  that  the  inquiry  is  an  investigation  into  responsibility,  to  be  con- 
tent with  speaking  of  the  cause  of  the  injury  simply  and  without 
qualification. 

In  the  present  case  their  Lordships  are  clearly  of  opinion  that, 
under  proper  direction,  it  was  for  the  jury  to  find  the  facts  and  to  de- 
termine the  responsibility,  and  that  upon  the  answers  which  they  re- 
turned, reasonably  construed,  the  responsibility  for  the  accident  was 
upon  the  appellants  solely,  because,  whether  Sands  got  m  the  way  of 
the  car  with  or  without  negligence  on  his  part,  the  appellants  could 
and  ought  to  have  avoided  the  consequences  of  that  negligence,  and 
failed  to  do  so,  not  by  any  combination  of  negligence  on  the  part  of 
Sands  with  their  own,  but  solely  by  the  negligence  of  their  servants 
in  sending  out  the  car  with  a  brake  whose  ineflSciency  operated  to , 
cause  the  collision  at  the  last  moment,  and  in  running  the  car  at  an 
excessive  speed,  which  required  a  perfectly  eflScient  brake  to  arrest  it. 
Their  Lordships  will  accordingly  humbly  advise  His  Majesty  that  the 
appeal  should  be  dismissed  with  costs.^ 

The  statement  of  facts  tfnd  argument  of  counsel  are  omitted. 


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308  NEHRING  V.  THE  CONNECTICUT  CO.  [CHAP.  U. 

NEHRING  V.  THE  CONNECTICUT  COMPANY 

Supreme  Court,  Connecticut,  July  19,1912. 

Reported  in  86  ConnecticiU  ReporU,  109. 

Prentice,  J.  It  is  clear  and  unquestioned  that  there  was  evidence, 
justifying  its  submission  to  the  jury,  tending  to  establish  the  defend- 
ant's negligence  in  the  premises  directly  contributing  to  produce  the 
fatal  injury  which  the  plaintiff's  intestate  suffered.  The  verdict  for 
the  defendant  was  directed  upon  the  ground  that  the  plaintiff  had 
failed  to  present  evidence,  suflScient  to  go  to  the  jury,  tending  to  estab- 
lish the  intestate's  freedom  from  contributory  negligence.  Plaintiff's 
counsel  in  his  brief  formally  takes  issue  with  this  conclusion  of  the 
court,  asserting  that  the  evidence  was  such  as  entitled  the  plaintiff  to 
go  to  the  jury  upon  the  question  of  the  intestate's  negligence.  It  is 
apparent,  however,  that  little  reliance  is  placed  upon  this  particular 
claim,  and  that  the  contention  that  the  cowrt  erred  must  fail  unless 
the  appeal  which  is  made  to  the  so-called  doctrine  of  "  the  last  clear 
chance,"  otherwise  known  as  supervening  or  intervening  negligence, 
is  well  made.  This  appeal  is  urged  with  vigor,  so  that  the  plaintiff's 
main  contention,  which  alone  calls  for  serious  consideration,  is  that, 
notwithstanding  the  intestate's  failure  to  use  ordinary  care,  the  de- 
fendant is  liable  through  the  operation  of  the  doctrine  referred  to, 
which,  it  is  said,  the  court  disregarded. 

The  notion  appears  to  be  more  or  less  prevalent  that  this  so-called 
doctrine  is  a  discovery  of  recent  years,  that  it  embodies  a  new  legal 
principle,  and  that  this  principle  is  one  which  invades  the  domain 
formerly  assigned  to  contributory  negligence,  and  sets  limitations 
upon  the  operation  of  this  latter  doctrine  so  long  and  so  deeply  im- 
bedded in  English  and  American  jurisprudence.  This4&43y  no  means 
true  as  respects  either  the  age  or  the  character  and  scope  of  the 
principle  which  it  embodies.  The  names  by  which  it  has  come  to  be 
known  are  indeed  of  recent  origin,  and  perhaps  its  present  vogue  and 
the  misconception  which  prevails  as  to  its  true  place  in  the  law  of 
negligence  are  due  in  part  to  its  thus  being  given  an  independent 
status  in  the  terminology  of  the  law.  In  fact,  the  principle  is  no 
modern  discovery.  It  runs  back  to  the  famous  "  Donkey  Case  "  of 
Davies  v,  Mann,  10  Mees.  &  W.  546,  decided  in  1842.  It  was  dis- 
tinctly recognized  by  this  court  in  1858  in  Isbell  v.  New  York  & 
N.  H.  R.  Co.,  27  Conn.  393.  It  was  then  not  only  recognized,  but  its 
true  place  in  the  law  was  assigned  to  it.  It  was  diown  to  be  no  inde- 
pendent principle  operating  by  the  side  of,  and  possibly  overstepping 
the  bounds  of,  other  principles,  but  merely  a  logical  and  inevitable 
corollary  of  the  long  accepted  doctrine  of  actionable  negligence  as 


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SECT.  VIII.]        NEHRINO  V.  THE  CONNECTICUT  CO.  309 

aflfected  by  contributory  negUgence*  The  definition  of  its  place, 
which  was  made  in  the  clear-cut  language  of  Judge  Ellsworth,  inexor- 
ably forbade  that  it  could  by  possibility  run  counter  in  its  application 
to  the  contributory  negligence  rule.  This  fundamental  principle  we 
have  steadily  adhered  to.  Smith  v.  Connecticut  Ry.  &  Ltg.  Co.,  80 
Conn.  268,  270,  67  Atl.  888;  EUiott  v.  New  York,  N.  H.  &  H.  R.  Co., 
83  Conn.  320,  322,  76  Atl.  298,  84  Conn.  444,  447,  80  Atl.  283. 

There  are,  indeed,  cases  which  give  countenance  to  a  different 
view  upon  this  latter  subject.  But  their  dicta,  oftentimes,  not  to  say 
generally,  uttered  without  an  apparent  comprehension  of  their  logical 
consequence,  would  create  havoc  with  the  law,  and  leave  it  guideless, 
or  with  two  conflicting  guides.  A  sober  second  thought  is,  however, 
fast  correcting  this  mistake,  so  that  there  has  already  come  to  be  a 
general  concurrence  of  the  well-considered  authorities  in  the  view 
which  has  been  taken  in  this  jurisdiction. 

The  contributory  negligence  rule  has  no  practical  application  save 
in  cases  where  the  defendant  has  been  guilty  of  actionable  negligence. 
It  proceeds  upon  the  theory  that  whenever  a  person  injured  has  con- 
tributed essentially  to  his  injury  by  his  own  negligent  conduct,  the 
law  will  not  give  hun  redress,  even  against  another  who  may  have  been 
directly  instrumental  in  pixxlucing  the  result.  To  furnish  a  basis 
for  its  application  there  must  have  been  a  concurrence  of  negligent 
conduct.  This  negligent  conduct,  furthermore,  must  have  been  of 
such  a  character  and  so  related  to  the  result  as  to  entitle  it  to  be  con- 
sidered an  efficient  or  proximate  cause  of  it.  If  there  is  a  failure  to 
use  due  care  on  the  part  of  either  party  at  such  a  time,  in  such  a  way 
or  in  such  a  relation  to  the  result  that  it  cannot  fairly  be  regarded  as 
an  efficient  or  proximate  cause,  the  law  will  take  no  note  of  it.  Caicsa 
proodmay  non  remoia,  spedatur. 

It  thus  logically  follows  that,  although  a  plaintiff  may  have  failed 
to  exercise  reasonable  care  in  creating  a  condition,  or  in  some  other 
way,  which  y^myf^  be  fairly  yaif^  in  have  been  the  proximate  cause  of 
the  injuries  of  which  he  complains,  the  contributory  negligence  rule 
cannot  be  invoked  against  him.  The  question  with  respect  to  negligent 
conduct  on  the  part  of  a  person  injured  through  the  negligence  of 
another,  as  affecting  the  former's  right  to  recover,  thus  becomes  re- 
solved in  every  case  into  one  as  to  whether  or  not  that  conduct  of  his 
was  a  proximate  cause  of  the  injury.  If  it  was,  then  the  contributory 
negligence  rule  is  applicable,  and  the  plaintiff  will  by  its  operation 
be  barred  from  recovery.  If  it  was  not,  that  rule  has  no  pertinence 
to  the  situation,  since  there  was  no  concurrence  of  negligence,  without 
which  there  can  be  no  contributory  negligence  in  the  legal  sense.  It 
is  conduct  of  the  latter  kind  —  that  is,  conduct  careless  in  itself,  but 
not  connected  with  the  injury  as  a  proximate  cause  of  it  —  to  which 
the  so-called  doctrine  of  "  the  last  clear  chance  "  relates,  and  that 
doctrine  unbraces  within  its  purview  such  conduct  only. 


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310  NEHRING  V.  THE  CONNECTICUT  CO.  [CHAP.  11. 

This  being  so,  it  may  well  ^be  questioned  whether  the  doctrine 
deserves  a  classification  and  a  name  as  of  an  independent  principle. 
But  if,  for  convenience  sake  or  other  reason,  it  is  to  be  dignified  in 
that  way,  it  is  apparent  that  there  is  no  manner  of  inconsistency  be- 
tween it  and  the  contributory-negligence  rule,  and  that  the  domain  of 
the  latter  rule  is  in  no  way  invaded  or  narrowed  by  a  fuU  recognition 
of  it.  It  follows  that  the  decisive  question  in  each  case,  where  a  plain- 
tiff injured  is  foimd  to  have  been  at  fault  in  the  premises  from  his 
failure  to  exercise  the  required  degree  of  care,  resolves  itself  into  one 
as  to  whether  that  fault  was  or  was  not  a  proximate  cause  of  the 
injury,  and  that  the  answer  to  that  question  will  infallibly  determine 
whether  or  not  it  will  bar  a  recovery. 

Thus  far  we  have  had  the  way  marked  out  for  us  by  the  clearly 
defined  doctrine  of  former  opinions.  But  the  proposition  just  stated, 
which  is  thus  supported,  while  sufficient  for  the  determination  of  many 
cases  and  furnishing  a  helpful  guide  in  most  others,  does  not  resolve 
all  the  difficulties  which  may  be  encountered.  It  leaves  the  question 
open  as  to  when  negligent  conduct  in  a  person  injured  in  his  person 
or  property  is  to  be  regarded  as  a  proximate  cause  of  the  injury.  How 
close  must  be  the  causal  connection  between  the  negligence  and  the 
injury  ?  It  is  at  this  point  that  any  real  uncertainty  or  trouble  arises 
under  the  doctrine  of  this  jurisdiction. 

The  negligence  referred  to  in  the  claimed  rule  is,  of  course,  that 
which  the  law  so  denominates,  to  wit,  want  of  due  care  which  is  a 
proximate  cause  of  harm.  The  proposition  is  not  dealing  with  a  lack 
of  due  care  which  the  law  ignores.  When  it  speaks  of  the  negligence 
ceasing,  negligence  in  the  legal  sense  is  meant.  It  may  in  a  given 
sense  cease  in  the  sense  that  prudent  conduct  takes  its  place.  It  may 
for  all  legal  purposes  cease  through  the  relegation  of  it,  as  events  pro- 
gress, to  the  domain  of  remote  cause.  In  other  words,  it  ceases  when, 
and  only  when,  the  conditions  of  contributory  negligence  disappear. 
The  claimed  test  thus  solves  no  problems.  It  only  brings  one  back,  in 
doubtful  cases,  to  the  inquiry  whether  the  plaintiff's  conduct,  lacking 
in  due  care,  was  of  such  a  character,  or  so  related  to  the  injury,  that  it 
ought  to  be  regarded  as  a  proximate  cause  of  it,  as  the  real  test  which 
must  be  applied. 

The  impossibility  of  framing  any  general  abstract  statement  which 
will  suffice  to  resolve  the  difficulties  which  may  be  presented  under 
varying  conditions,  or  to  anticipate  all  such  conditions,  is  apparent. 
We  shall  undertake  no  such  task.  There  are,  however,  certain  sets  of 
conditions,  of  not  infrequent  occurrence,  concerning  which  general 
conclusions  may  be  made  safely  and  profitably. 

There  is,  for  instance,  the  occasional  case  where,  after  the  plaintiff's 
peril,  to  which  he  has  carelessly  exposed  himself  or  his  property,  be- 


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SECT.  VIII.]        NEHRING  V.  THE  CONNECTICUT  CO.  311 

comes  known  to  the  defendant,  the  latter  introduces  into  the  situation 
a  new  and  independent  act  of  negligence  without  which  there  would 
have  been  no  injury.  Such  was  the  case  of  Smith  v.  Connecticut  Ry. 
&  Ltg.  Co.,  80  Conn.  268,  270,  67  Atl.  888,  and  it  was  there  held,  in 
accordance  with  sound  reason,  that  this  new  negligence  was  to  be 
regarded  as  the  sole  proximate  cause  of  the  accident  which  ensued. 
The  rule  for  that  type  of  case  is  thus  furnished. 

Cases  of -another  class  occasionally  arise,  where  it  is  disclosed  that 
the  plainti£F  has  by  his  lack  of  care  placed  himself  in  a  position  of 
danger  from  which  he  either  cannot,  or  cannot  reasonably,  escape  after 
the  discovery  of  his  danger.  Here,  again,  there  can  be  no  hesitation 
in  saying,  that  if  the  defendant,  after  his  discovery  that  the  plaintiflF 
is  in  the  situation  described,  fails  to  use  reasonable  care  —  and  that  is 
care  proportioned  to  the  danger  —  to  save  him  from  harm,  and  harm 
results  from  such  failure,  the  defendant's  want  of  care  will  be  re- 
garded as  the  sole  proximate  cause,  and  the  plaintifiTs  a  remote  cause 
only. 

The  situation  just  stated  is  not  infrequently  changed,  in  that  means 
of  escape  were  open  to  the  plaintiff  by  the  exercise  of  reasonable  care, 
but  it  was  apparent  to  the  defendant,  in  season  to  have  avoided  the 
doing  of  harm  by  the  exercise  of  due  care,  that  the  plaintiff  would  not 
avail  himself  of  them.  Here  it  is  assumed  that  the  situation  of  ex- 
posure had  been  created  and  established  by  the  plaintiff's  action  before 
the  period  of  time  began  within  which  the  defendant,  acting  reason- 
ably, might  have  saved  him,  and  that  within  that  period  the  plaintiff 
did  nothing  to  create  or  materially  change  that  situation  by  active 
conduct  which  was  not  marked  by  reasonable  care.  Under  the  as- 
sumption he  remains  passive,  in  so  far  at  least  as  negligent  action  is 
concerned,  and  can  be  regarded  as  careless  only  in  this  that  he  did  not 
awake  to  his  surroimdings  and  do  what  he  reasonably  could  to  avoid 
the  threatened  consequences  of  a  situation  which  he  had  already 
negligently  brought  about.  In  such  cases  the  hiunane,  and,  to  our 
mind,  the  better  reason,  all  things  considered,  leads  to  the  conclusion 
to  which  our  former  opinions,  already  cited,  commit  us,  and  which  a 
large  number  of  cases  elsewhere  approve,  that  the  want  of  care  on  the 
part  of  the  plaintiff  will  be  regarded  as  a  remote  and  not  a  proximate 
cause. 

Another  important  variation  is  oftentimes  introduced  into  the 
situation,  in  that  the  plaintiff  continued  as  an  active  agent  in  pro- 
ducing the  conditions  under  which  his  injury  was  received  down  to 
the  time  of  its  occurrence,  or  at  least  until  it  was  too  late  for  the  de- 
fendant, with  knowledge  of  his  peril,  to  have  saved  him  by  the  exercise 
of  reasonable  care  under  the  circumstances.  This  variation  imports 
into  the  situation  an  important  factor.  The  plaintiff,  during  the 
period  named,  is  not  merely  passively  permitting  an  already  fixed 
condition  to  remain  unchanged.   He  is  an  actor  upon  the  scene.    He 


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312  NEHBINO  V.  THE  CONNECTICUT  CO.  [CHAP.  11. 

is,  by  acts  of  his  volition,  bringing  into  the  situation  which  confronts 
the  defendant  changed  conditions  and,  in  the  fullest  sense,  co-oper- 
ating with  the  latter  in  bringing  about  the  ultimate  result.  In  such 
case  his  conduct  must  be  regarded  as  a  concurring  efficient  cause.  It 
is,  in  the  fullest  sense,  a  proximate  and  not  a  remote  one,  making  his 
negligence  contributory. 

It  is  said,  however,  that  there  are  cases,  and  undoubtedly  there  are, 
where  it  is  reasonably  apparent  to  the  one  who  inflicts  the  injury  that 
the  injured  one  is  careless  of  his  safety^  and  that,  in  continuance  of 
his  carelessness,  he  is  about  to  place  himself  in  a  position  of  danger, 
which  he  subsequently  does,  and  where  the  former  thereafter,  having  a 
reasonable  opportimity  to  save  him  from  harm,  fails  to  do  so;  and  it 
is  contended  that  in  such  cases  the  conduct  of  the  injured  person 
should  be  regarded  as  a  remote  cause  only  of  the  resulting  harm.  We 
are  unable  to  discover  any  logical  reason  for  such  a  conclusion,  or  any 
place  at  which  a  practical  or  certain  line  of  division  can  be  drawn 
between  that  careless  conduct  of  a  man,  playing  some  part  in  an  injury 
to  him,  which  the  law  will  regard  as  having  that  causal  connection 
with  the  injury  which  makes  it  a  proximate  cause,  and  that  careless 
conduct  which  will  not  be  so  regarded,  if  the  contention  imder  con- 
sideration is  to  be  approved.  The  conduct  of  the  man  who  inflicts 
the  injury  under  such  general  conditions  may  indeed  be  such  that  it 
is  open  to  the  charge  of  wilfulness  or  wantonness.  If  so,  the  case  is 
not  one  of  negligence,  and  the  defense  of  contributory  negligence 
would  not  be  available.  Rowen  v.  New  York,  N.  Y.  &  H.  R.  Co.,  59 
Conn.  364,  371,  21  Atl.  1073.  If  the  conduct  is  not  wilful  or  wanton, 
it  is  negligent  only.  Thus  treated,  it  forms  one  factor  of  negligence 
in  the  situation.  The  plaintiff's  want  of  care  is  another  factor,  and 
it  certainly  has  something  substantial  to  do  in  bringing  about  the 
result  reached.  Upon  what  theory  or  foundation  in  reason  it  can  be 
said  that,  under  the  circumstances  assumed,  it  is  not  an  efficient  cause 
of  that  result  co-operating  concurrently  with  the  other  cause  to  be 
found  in  the  other  party's  negligence,  we  are  unabie  to  discover.  The 
causal  connection  is  plain  to  be  seen,  and  the  act  of  causation  is  that 
of  a  positive  act  of  volition.  The  two  actors  upon  the  scene  owe  pre- 
cisely the  same  duty  to  be  reasonably  careful.  Dexter  v,  McCready, 
64  Conn.  171,  174,  5  Atl.  855.  Neither  occupies  in  that  regard  a 
superior  position,  and  the  one  who  suffers  can  claim  no  precedence 
over  his  fellow  actor  or  at  the  hands  of  the  law.  To  say  that  no  matter 
if  one  be  negligent  in  going  forward  into  danger,  or  in  creating  new 
conditions  or  complicating  them,  the  law  will  protect  him  and  cast 
upon  the  other  party  the  responsibility  for  the  result,  is  to  ignore  the 
fundamental  principle  of  contributory  negligence  and  bring  the  law 
upon  that  subject  into  hopeless  confusion,  and  merit  for  it  the  con- 
demnation which  Thompson  has  so  forcibly  expressed.  1  Thompson 
on  Negligence,  §§  230,  233.    The  well-considered  cases  which  have 


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SECT.  Vm.]        NEHRING  V.  THE  CONNECTICUT  CO.  313 

directly  dealt  with  this  subject  agree  with  us,  we  think,  in  our  view 
that  active  continuing  negligence  of  the  kind  assumed  is  to  be  re- 
garded as  contributory  in  the  legal  sense.  Butler  v.  Rockland,  T.  &  C. 
Street  Ry.  Co.,  99  Me.  149,  160,  58  Atl.  775;  Murphy  v.  Deane,  101 
Mass.  455,  465;  Dyerson  v.  Union  Pacific  R.  Co.,  74  Kan.  528,  87 
Pac.  680;  Little  v.  Superior  Rapid  Transit  Ry.  Co.,  88  Wis.  402,  409, 
60  N.  W.  705;  Green  v.  Los  Angeles  Terminal  Ry.  Co.,  143  Cal.  31, 
47,  76  Pac.  719;  Olson  v.  Northern  Pacific  Ry.  Co.,  84  Minn.  258, 
87  N.  W.  843. 

We  have  thus  far  dealt  with  cases  in  which  actual  knowledge  on  the 
part  of  the  defendant  of  the  plaintiflF's  peril  enters  into  the  assmnption 
of  facts.  Suppose,  however,  that  such  knowledge  is  not  established, 
but  facts  are  shown  from  which  it  is  claimed  that  the  defendant  ought 
in  the  exercise  of  due  care  to  have  known  of  it.  What  shall  be  said 
of  such  a  situation  ? 

In  so  far  as  imputed  or  constructive  knowledge  may  be  embraced 
in  the  assumption,  the  simple  answer  is  to  be  foimd  in  the  legal  prin- 
ciple that  full  and  adequate  means  of  knowledge,  present  to  a  person 
when  he  acts,  are,  under  ordinary  circumstances,  treated  as  the 
equivalent  of  knowledge.    Post  v.  Clark,  35  Conn.  339,  342. 

But  our  assumption  reaches  outside  of  the  domain  of  knowledge, 
either  actual  or  constructive.  It  suggests,  in  the  use  of  the  phrase 
"  ought  in  the  exercise  of  due  care  to  have  known,"  frequently  met 
with  in  the  books,  the  existence  of  a  duty  to  exercise  due  care  to  ac- 
quire knowledge,  and  the  query  is,  whether  the  law  recognizes  the 
existence  of  such  a  duty  to  the  extent  of  making  it  a  foundation  for 
responsibility  for  conduct  akin  to  that  which  flows  from  conduct  with 
actual  or  constructive  knowledge. 

We  have  frequently  held  that  the  character  of  one's  conduct  in 
respect  to  care  is  to  be  determined  in  view  of  what  he  should  have 
known  as  well  as  of  what  he  did  in  fact  know.  Snow  v,  Coe  Brass 
Mfg.  Co.,  80  Conn.  63,  66  Atl.  881.  In  these  cases  the  question  has 
been  as  to  one's  duty  for  his  own  self-protection.  That  duty,  accord- 
ing to  established  principles,  involves  the  making  of  reasonable  use  of 
one's  senses  under  the  penalty  of  forfeiture  of  all  claim  for  redress 
in  the  event  that  harm  results.  Popke  v.  New  York,  N.  H.  &  H.  R. 
Co.,  81  Conn.  724,  71  Atl.  1098. 

But  how  about  a  duty  of  acquiring  knowledge,  owed  to  others  for 
their  safety,  which,  not  being  performed,  will  furnish  a  basis  of  lia- 
bility ?  In  Elliott  V,  New  York,  N.  H.  &  H.  R.  Co.,  83  Conn.  320, 
76  Atl.  298,  we  recognized  that  such  a  duty  might  exist.  That  case 
involved  the  conduct  of  a  locomotive  engineer  operating  his  engine 
at  a  grade-crossing,  and  we  approved  a  charge  which  gave  to  the 
knowledge  which  the  engineer,  under  the  conditions,  ought,  in  the 
use  of  due  care,  to  have  had,  the  same  effect  as  actual  knowledge.  The 
duty  imposed  upon  him  was  one  to  be  watchful  in  order  that  needless 


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314  NEHRING  V.  THE  CONNECTICUT  CO.  [CHAP.  II. 

harm  might  not  come  to  persons  who  might  be  using  the  crossing, 
from  the  dangerous  instrument  of  his  calling.  The  duty  was  one  to- 
ward others,  which  the  circumstances  and  conditions  must  be  re- 
garded as  fairly  creating.  For  a  like  reason  a  similar  duty  rests  upon 
other  persons  and  under  other  conditions,  in  greater  or  lesser  measure. 
Whether  it  exists,  and  the  extent  of  it,  depends  upon  the  circumstances 
of  each  situation.  A  circumstance  of  chief  significance,  perhaps,  is 
one  which  concerns  the  character  of  that  about  which  the  person  is 
engaged  in  respect  to  its  being  calculated,  under  the  conditions,  to 
work  injury  to  others.  And  so  it  is  that  a  locomotive  engineer,  a 
motorman  of  a  trolley-car  running  in  a  highway,  or  a  chauffeur  driv- 
ing an  automobile,  is  under  a  duty  to  be  watchful  for  the  protection 
of  others  which  another  man  under  other  conditions  would  not  owe 
to  his  fellows.  Unreasonableness  in  one's  conduct,  as  a  foundation 
for  responsibility  to  others,  cannot  justly  be  established  upon  the 
basis  of  knowledge  not  possessed.  It  can  with  propriety  be  predicated 
upon  negligence  in  not  having  acquired  more  knowledge.  Negligence 
in  this  respect,  as  in  all  others,  implies  the  existence  of  a  duty  to  make 
use  of  means  of  knowledge.  This  duty  must  be  found  in  the  circimi- 
stances,  and  caution  must  be  exercised  in  order  that  it,  with  its  con- 
sequences, be  not  raised  where  the  circumstances  do  not  fairly  impose 
it,  or  be  extended  beyond  the  limits  which  the  circumstances  fairly 
justify.^ 

George  W.  Wheeler,  J.  (dissenting).  Just  prior  to  the  accident 
the  defendant's  car  was  being  negligently  operated.  Assuming  the 
decedent  walked  either  diagonally  toward  and  upon  the  track,  or  close 
to  it,  without  using  his  senses  to  learn  of  the  approaching  car,  and 
that  there  was  no  excuse  for  his  failure,  he  was  negligent.  If  the 
accident  occurred  while  decedent  and  defendant  were  negligent  and 
decedent's  negligence  was  a  proximate  cause  of  the  accident,  and  there 
was  nothing  more  to  the  case,  there  could  be  no  recovery.  But  if  the 
defendant's  motorman  saw,  or  could  by  the  exercise  of  reasonable  care 
have  seen,  the  decedent  either  approaching  the  track  and  about  to 
place  himself  in  danger,  or  walking  so  near  the  track  as  to  be  in  danger, 
apparently  heedless  and  unconscious  of  his  peril,  he  owed  to  the  de- 
ceased the  duty  of  warning  him  and  of  observing  such  precautions  as 
might  avoid  running  into  him.  This  was  the  case  before  the  jury.  We 
hold  knowledge  and  the  means  of  knowledge  of  one  having  a  duty  to 
know  equivalent.  Elliott  v.  New  York,  N.  H.  &  H.  R.  Co.,  83  Conn. 
320,  76  Atl.  298.  This  duty  originated  after  the  negligence  of  the 
motorman  and  of  the  deceased,  and  after  the  latter's  peril  and  his 
unconsciousness  of  it  might  have  been  discovered  by  the  motorman. 
If  its  performance  would  have  avoided  the  injury  to  the  deceased,  its 
breach  was  the  proximate  cause  of  the  accident,  and  his  negligence  in 
placing  himself  in  the  place  of  peril  a  condition,  or  the  remote  cause, 

*  The  statement  erf  facts,  arguments  and  parts  of  the  opinions  are  omitted. 


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SECT.  VIII.]        NEHRING  V.  THE  CONNECTICUT  CO.  315 

of  it.  Of  course,  if  he  had  not  gone  upon  the  track  he  would  not  have 
been  injured;  if  he  was  n^igent  in  going  upon  the  track  without 
using  his  senses,  that  was  not  the  proximate  cause  of  the  accident,  but 
the  failure  of  the  defendant  to  avoid  the  accident  after  it  had  the  op- 
portunity of  avoidance  and  after  it  knew  of  the  decedent's  peril  and 
his  imconsciousness  of  it. 

In  each  case  of  discovered  peril  caused  by  one's  negligence  the  ques- 
tion is,  did  the  defendant  have  the  opportunity  after  such  discovery, 
and  was  it  his  duty,  to  have  avoided  the  accident  ?  Whether  the 
conduct  of  the  motorman  was  gross  negligence,  or  ordinary  negligence, 
the  breach  of  duty  was  the  same  in  kind,  though  diflfering  in  degree. 
K  one  walks  upon  a  railway  track  drunk,  or  in  a  reverie,  or  otherwise 
careless;  or  if  one  stands  or  lies  on  or  so  near  the  railway  track  as  to 
be  in  danger  and  imconscious  of  it;  or  if  one  is  in  a  position  of  peril 
through  his  own  negligence  from  which  he  is  unable  to  extricate  him- 
self, the  person  knowing  or  having  the  means  and  the  duty  to  know 
of  his  presence  owes  him  the  duty  of  avoiding  injuring  him.  One 
who  is  negligently  in  a  position  of  danger  and  imconscious  of  it  is  in 
no  different  situation  than  if  he  were  incapable  of  extricating  himself 
from  his  peril. 

The  few  authorities  which  hold  the  antecedent  negligence  of  the 
deceased  in  getting  into  peril  is  concurrent  with  the  defendant's  negli- 
gence so  as  to  bar  a  recovery,  make  meaningless  the  rule  of  duty  com- 
pelling the  defendant  to  use  reasonable  care  to  avoid  the  accident  after 
discovery  of  the  peril.  A  legal  duty  without  a  corresponding  obliga- 
tion is  an  anomaly.  When  we  relieve  the  motorman  of  liability  for 
failure  to  avoid  an  accident,  he  may  operate  his  car  at  a  negligent 
speed,  without  having  it  imder  control,  without  keeping  an  outlook, 
without  giving  warning  of  approach,  and  neither  having  nor  using 
the  ordinary  instrumentalities  of  equipment  for  avoiding  injury  to 
travellers,  and  so  long  as  his  conduct  is  not  gross  negligence  it  carries 
with  it  no  liability. 

The  opinion  of  the  court  classifies  in  five  groups  the  several  kinds 
of  cases  which  have  been  thought  to  be  within  the  "  last  clear  chance  " 
doctrine.  In  group  one,  the  defendant,  instead  of  doing  his  duty, 
does  something  which  is  a  new  act  of  negligence.  In  group  two,  the 
peril  is  one  from  which  the  plaintiff  cannot,  or  cannot  reasonably, 
extricate  himself.  Each  group  supports  a  recovery.  In  group  three, 
means  of  escape  were  open  to  the  plaintiff  down  to  the  accident,  but 
he  remained  imconscious  of  his  peril.  The  opinion  holds  that  if  the 
plaintiff  remains  passive  after  exposing  himself  to  peril  and  does 
nothing  to  materially  change  that  condition,  there  may  be  a  recovery. 
But  in  group  four,  assuming  the  same  facts  as  in  group  three,  the 
cowrt  holds  that  if  the  plaintiff  after  exposing  himself  to  peril,  instead 
of  permitting  the  fixed  condition  to  remain  unchanged  continues  as 
an  active  agent  in  producing  the  conditions  under  which  the  injury 


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316  NEHRING  V.  THE  CONNECTICUT  CO.  [CHAP.  H. 

was  received  down  to  its  occurrence,  or  until  it  was  too  late  for  the 
defendant  to  avoid  the  accident,  there  can  be  no  recovery.    In  group 

ti    L   wiA^^^^^'  ^^^  defendant  knows,  or  ought  to  know,  that  the  injured  one  is 

J  U  iC/^         careless  and  is  about  to  expose  himself  to  danger  of  which  he  is  imcon- 
•^L>^       scious,  and  after  such  knowledge  has  the  opportunity  to  avoid  injury 

\\)^Opi^  to  him,  and  in  such  case  the  court  holds  there  can  be  no  recovery. 

Jl\fr^  We  have  attempted  to  show  that  the  breach  of  duty  of  the  defend- 

ant  in  each  of  these  several  groups  is  the  same,  and  was  a  new  act  of 
negligence  of  the  defendant,  viz. :  the  failing  of  the  defendant  to  avoid 
injuring  the  plaintiff  after  he  knew  of  his  peril  when  he  was  either  un- 
conscious of  it  or  incapable  of  extricating  himself  from  it,  and  that  this 
breach  was  the  proximate  cause  of  the  accident  while  the  plaintiff's 
prior  negligence  was  the  remote  cause. 

The  distinction  between  active  and  passive  negligence  made  in 
groups  three  and  four,  is  new  to  oiu*  law,  as  well  as  to  the  law  of  negli- 
gence generally  prevailing  in  this  coimtry  and  in  England.  On  anal- 
ysis it  does  not  seem  logical.  A  is  crossing  a  trolley  track  when  hailed 
by  a  friend;  he  stops  upon  the  track  to  talk  and  negligently  fails  to 
use  his  senses  to  discover  an  approaching  car.  The  motorman  could 
have  seen  A  in  his  place  of  penl,  unconscious  of  his  danger,  and  in 
time,  with  the  exercise  of  reasonable  care  to  have  avoided  injuring 
him;  instead  he  drives  on  his  ear  and  kills  A.  The  opinion  would  hold 
A  negligent  in  being  upon  the  track  without  using  his  sensos  to  keep 
out  of  the  way  of  the  oncoming  car,  but  that  as  he  remained  passive 
and  did  nothing  to  change  his  situation  of  peril  after  the  motorman 
had  the  opportimity  to  have  avoided  the  accident,  he  may  recover. 
But  if  A,  instead  of  stopping  on  the  track  had  gone  on  his  way  across 
or  upon  the  track  and  been  struck,  his  negligence  would  have  been 
active  and  continued  to  the  accident  and  would  have  been  concurrent 
with  that  of  the  motorman.  It  must  be  conceded  that  the  breach  of 
the  motorman's  duty  would  have  been  the  same  in  each  case :  a  failure 
to  use  reasonable  care  to  avoid  the  accident.  We  see  no  reason  why 
it  should  be  available  in  the  one  case  and  not  in  the  other.  In  neither 
case  has  the  plaintiff's  negligence  changed.  It  never  became  passive 
or  nonexistent.  It  remained  to  the  time  of  the  accident.  It  ceased, 
in  a  legal  sense,  to  be  a  proximate  cause  of  the  accident.  A  was  re- 
lieved of  its  consequences  because  the  negligence  of  the  motorman  in 
failing  to  avoid  the  accident  intervened  and  became  its  proximate 
cause.  If  this  distinction  holds,  and  A  be  upon  a  trolley  track  intoxi- 
cated and  asleep,  his  negligence  is  passive;  if  awake  and  walking  his 
negligence  is  active.^ 

1  See.  also  Bruggeman  t;.  Illinois  R.  Co.,  147  la.  187,  204-214;  Anderson  v, 
Minneapolis  R.  Co.,  103  Minn.  224:  Cavanaugh  v.  Boston  R.  Co.,  76  N.  H.  68; 
Scholl  V.  Belcher,  63  Or.  310, 323;  Underwood  ».  Old  Colony  R.  Co.,  33  R.  1. 319. 
As  to  the  requirement  of  a  "  new  act  of  negligence  "  see  Rider  v,  Syracuse  R.  Co., 
171  N.  Y.  139. 


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SECT.  VIII.]      GAHAGAN  V.  BOSTON  &  MAINE  RAILROAD  317 

GAHAGAN  v,  BOSTON  it  MAINE  RAILROAD 

Supreme  Court,  New  Hampshire,  December,  1900. 

Reported  in  70  New  Hampshire  Reports^  441. 

Plaintiff  was  struck  by  a  train  whDe  attempting  to  use  a  crossing 
provided  by  the  Railroad  Company  for  persons  having  business  with 
a  manufacturing  company.  From  a  point  twenty-two  feet  from  the 
nearest  rails  there  was  an  unobstructed  view  of  the  track  in  the  direc- 
tion from  which  the  train  came.  The  accident  happened  near  noon  on 
a  bright  and  clear  day.  Generally  the  engine  bell  was  rung,  while  the 
whistle  was  sometimes  soimded,  for  this  crossing.  Plaintiff  knew  it 
was  usual  to  ring  the  bell.  In  this  instance  a  danger  whistle  was 
soimded  at,  or  immediately  before,  the  time  when  plaintiff  was  struck; 
but  there  was  evidence  tending  to  prove  that  no  other  warning  of  the 
approach  of  the  train  was  given.  Plaintiff  testified  that  he  did  not 
look  or  listen  for  an  approaching  train;  and  that  he  did  not  look  be- 
cause he  expected  to  hear  the  bell  or  whistle  if  one  was  coming.  The 
engineer  testified  that,  when  about  one  hundred  and  fifty  to  two 
himdred  feet  from  the  crossing,  he  saw  plaintiff  approaching  the 
track;  and  that  he  kept  watch  of  plaintiff  imtil  he  got  within  a  few 
feet  of  the  track,  when  he  whistled.* 

A  nonsuit  was  ordered,  subject  to  exception. 

Parsons,  J.  .  .  .  It  is  urged  that  the  plaintiff  relied  upon  the  ring- 
ing of  the  bell,  and  that  the  failure  to  give  the  warning  signals  (of 
which  there  was  some  evidence  which  must  here  be  taken  to  be  true) 
excused  him  from  the  exercise  of  vigilance.  Though  the  plaintiff  testi- 
fied that  he  did  not  look  to  see  if  a  train  was  approaching  because  he 
expected  to  hear  the  whistle  or  bell  if  there  was,  it  cannot  be  claimed 
that  he  was  consciously  at  the  time  placing  any  reliance  thereon,  for 
he  further  testifies  that  he  had  no  thought  of  a  train  coming  and  did 
not  listen  for  the  bell.  As  his  counsel  state  in  their  brief,  "  There 
was  no  positive  effort,  no  conscious  '  harking '  or  '  listening,'  to  ascer- 
tain if  ibe  train  was  coming."  But  assuming  that  it  might  be  found 
as  a  fact  that  he  did  rely  on  the  awakening  of  his  consciousness  by  the 
performance  of  the  railroad's  duty  of  warning,  the  failure  of  the  de- 
fendants to  perform  their  duty  did  not  release  him  from  his.  The 
obligation  to  use  care  was  equally  imposed  upon  each.  If  the  defend- 
ants' negligence  excused  the  plaintiff  from  his  duty  of  care,  the  plain- 
tiff's negligence  with  equal  reason  would  excuse  the  defendants.  If 
the  plaintiff  had  the  right  to  assume  the  defendants  would  perform 
their  duty,  and,  relying  thereon,  approach  the  crossing  without  exer- 
cising care,  the  defendants  had  the  right  to  assume  that  the  plaintiff 
would  perform  his  duty,  and  omit  the  warning  of  bell  and  whistle. 
The  duty  of  care  rested  on  each  equally.    If  neither  performed  that 

^  Statement  abridged.    Only  part  of  opinion  is  given. 


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318  GAHAGAN  V.  BOSTON  &  MAINE  RAILROAD      [CHAP.  II. 

duty  both  are  in  fault,  and  neither  can  recover  of  the  other.  The 
collision  in  this  case  resulted,  it  may  be,  because  neither  party  per- 
formed their  duty.  If  either  had,  there  might  and  probably  would 
have  been  no  accident.  The  rights  and  liabilities  of  the  parties  con- 
sequent upon  their  acts  resulting  in  the  collision  are  not  affected  by 
the  fact  that  subsequently  one  is  plaintiff  and  the  other  defendant  in 
a  suit  growing  out  of  the  collision.  Their  several  responsibility  is 
fixed  at  the  time  by  their  acts  or  failure  to  act.  A  suit  by  the  engi- 
neer against  Gahagan  for  personal  injury  resulting  from  the  collision 
would  present  precisely  the  same  legal  question  as  that  we  now  have. 
It  would  hardly  be  urged  that  the  engineer  was  not  guilty  of  con- 
tributory negligence  in  failing  to  ring  the  bell  because  he  relied  upon 
Gahagan's  performance  of  his  duty  of  stopping  and  allowing  the  train 
to  go  by.  The  negligence  of  neither  is  an  excuse  for  concurrent  want 
of  care  in  the  other,  because  for  an  injury  resulting  from  the  concur- 
rent negligence  of  both  neither  can  recover.  Nashua  Iron  and  Steel 
Co,  V.  Raikoad,  62  N.  H.  159,  163. 

The  rule  is  laid  down  in  Railroad  Co.  v.  Houston,  95  U.  S.  697,  702, 
also  a  crossing  case,  as  follows:  "  The  failure  of  the  engineer  to  sound 
the  whistle  or  ring  the  bell,  if  such  were  the  fact,  did  not  relieve  the 
deceased  from  the  necessity  of  taking  ordinary  precautions  for  her 
safety.  Negligence  of  the  company's  employees  in  these  particulars 
was  no  excuse  for  negligence  on  her  part." 

It  is  not  claimed  that  after  the  plaintiff  stepped  upon  the  track 
almost  inunediately  in  front  of  the  approaching  train  the  defendants 
could  have  prevented  the  injury,  or  that  the  employees  in  charge  of 
the  train,  when  the  danger  thus  became  imminent,  did  not  do  all  that 
could  be  done  to  prevent  the  collision.  At  any  time  before  this  the 
plaintiff  could  have  avoided,  the  collision.  There  was  no  moment 
when  the  defendants  could,  while  the  plaintiff  could  not,  have  pre- 
vented the  injury.  The  plaintiff's  act  in  stepping  upon  the  track, 
without  precaution  to  ascertain  whether  he  could  safely  do  so,  was  the 
last  act  in  point  of  time  in  the  causation  producing  the  injury.  As 
there  was  no  evidence  upon  which  it  could  reasonably  be  found  that 
the  plaintiff's  action  in  this  respect  was  the  exercise  of  care,  he  cannot 
recover  unless  upon  the  evidence  some  negligent  act  or  omission  of 
the  defendants'  employees  could  be  found  to  be  the  sole  proximate 
cause  of  the  injury. 

The  plaintiff's  negligent  occupation  of  the  track  did  not  authorize 
the  defendants  to  run  upon  and  injure  him,  if  by  care  they  could  have 
avoided  it.  Ordinarily,  the  negligent  act  or  omission  which  fails  to 
avoid  the  consequences  of  the  plaintiff's  negligence  is  the  last  act  in 
time  in  the  series  leading  to  the  injury.  Such  was  the  case  in  the 
cases  cited;  the  negligent  occupation  of  the  track  by  the  plaintiffs 


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SECT.  VIII.]      GAHAGAN  V.  BOSTON  A  MAINE  RAILROAD  319 

preceded  the  negligence  of  the  defendants  in  failing  to  observe  and 
guard  against  the  danger  so  produced.  But  as  ordinary  care  may  re- 
quire vigilance  to  guard  against  a  dangerous  situation  reasonably  to 
be  apprehended,  as  well  as  actually  imminent,  it  cannot  always  follow 
that  the  last  negligent  act  in  point  of  time  is  necessarily  the  proxi- 
mate cause  of  the  injury.  If  the  engineer  knew  or  ought  to  have 
known  that  the  plaintiff's  negligence  would  place  him  upon  the  cross- 
ing when  the  train  reached  it,  the  engineer  was  equally  bound  to  avoid 
the  collision  as  if  he  saw  the  plaintiff  actually  on  the  track.  The 
question  is  one  of  evidence  merely.  The  mere  fact  that  the  person 
when  first  seen  is  on  the  track  is  not  decisive.  If  a  person  on  foot  is 
seen  crossing  the  track  at  such  distance  ahead  that  it  could  not  rea- 
sonably be  apprehended  that  the  train  would  reach  him  in  this  posi- 
tion, the  engineer  would  not  be  in  fault  for  not  preparing  to  avoid  a 
danger  not  reasonably  to  be  expected.  In  the  present  case  there  is 
evidence  that  when  the  plaintiff  was  first  seen  by  the  engineer  the 
collision  could  have  been  prevented.  If  the  engineer  knew  or  ought 
to  have  known  then  that  the  plaintiff  would  be  upon  the  crossing 
when  the  train  reached  it,  and  could  have  avoided  the  collision,  his 
failure  to  do  so  is  the  proximate  cause  of  the  injury. 

As  there  was  evidence  the  collision  might  then  have  been  prevented 
by  him,  the  sole  remaining  question  is  whether  upon  the  evidence 
reasonable  men  might  find  the  engineer  ought  then  to  have  foreseen 
t^e  plaintiff's  n^ligence.  The  bare  fact  that  the  plaintiff  was  seen 
approaching  the  track  is  not  sufficient  to  authorize  such  a  finding.  If 
it  were,  the  rule  heretofore  laid  down  and  found  to  be  approved  by  the 
authorities  and  the  reason  of  the  case,  that  it  is  the  duty  of  the  high- 
way traveller  to  stop  and  allow  the  train  to  pass,  would  be  reversed. 
It  would  become  the  duty  of  the  train  to  stop  and  wait  for  the  person 
on  foot  to  go  by.  This  would  be  unreasonable,  impracticable,  and  put 
an  end  to  the  modem  syste-n  of  rapid  transportation  demanded  by  the 
public,  and  to  effectuate  which  railroads  are  authorized  by  the  state. 

"  The  company's  servants  may  ordinarily  presume  that  a  person 
apparently  of  full  age  and  capacity,  who  is  walking  on  the  track  at 
some  distance  before  the  engine,  will  leave  it  in  time  to  save  himself 
from  harm ;  or  if  approaching  the  track,  that  he  will  stop  if  it  becomes 
dangerous  for  him  to  cross  it.  This  presumption  will  not  be  justified 
under  some  circumstances,  as  when  the  person  who  is  on  the  track 
appears  to  be  intoxicated,  asleep,  or  otherwise  off  his  guard."  Pierce 
R.  R.  331 ;  2  Shearm.  &  Red.  Neg.  s.  483;  Chicago,  etc.  R.  R.  v.  Lee, 
68  111.  576,  581 ;  Terre  Haute,  etc.  R.  R.  v.  Graham,  46  Ind.  239,  245; 
Lake  Shore,  etc.  R.  R.  v.  Miller,  25  Mich.  274, 278, 280;  Boyd  v.  Rail- 
way, 105  Mo.  371,  381,  382.  The  presumption  is  foimded  upon  the 
general  principle  of  right  acting  and  the  instinct  of  self-preservation. 
Huntress  v.  Raihoad,  66  N.  H.  186;  Lyman  v.  Raiht)ad,  66  N.  H. 
200;  2  Thomp.  Neg.  1601. 


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320        NORFOLK  A  W.  R.  CO.  V.  DEAN's  ADM'x   [CHAP.  II. 

The  case  discloses  no  evidence  apparent  to  the  engineer  taking  the 
present  case  out  of  the  rule. 

Aside  from  the  plaintiff's  own  statement  and  the  fact  of  the  subse- 
quent collision,  the  case  contains  no  evidence  that  the  plaintiff,  when 
seen  by  the  engineer  approaching  the  crossing,  was  not  alert  to  the 
situation,  or  tending  to  produce  a  belief  that  he  would  voluntarily 
rush  into  danger  without  care.  Until  he  stepped  upon  the  track  his 
only  danger  consisted  in  the  fact  of  his  mental  obliviousness  to  his 
duty  of  taking  care.  So  defining  his  danger,  the  claim  of  his  counsel, 
that  if  the  engineer  knew  the  plaintiff's  danger  he  could  have  avoided 
the  injury  and  is  in  fault  for  not  doing  so,  is  sound;  but  to  submit  to 
the  jury  the  question  of  fact  whether  the  engineer  ought  to  have 
known  the  statics  of  the  plaintiff's  mind  in  season  to  have  prevented 
the  accident,  not  only  in  the  absence  of  evidentiary  facts  tending  to 
prove  such  knowledge  but  in  the  face  of  all  the  facts  open  only  to  a 
contrary  inference,  would  be  a  violation  of  the  familiar  and  elemen- 
tary rule  that  in  judicial  trials  facts  are  to  be  found  upon  evidence, 
not  conjecture.    Deschenes  v.  Railroad,  69  N.  H.  285. 

The  evidence  upon  which  counsel  maiily  rely,  tending  to  show  that 
when  seen  by  the  engineer  Gahagan's  face  was  not  turned  toward  the 
train  and  that  his  appearance  did  not  indicate  whether  he  saw  the  train 
or  not,  does  not  tend  to  establish  that  he  proposed  to  rush  carelessly 
into  known  danger,  or  that  he  would  go  upon  the  track  without  care 
to  ascertain  if  a  train  was  approaching.  That  Gahagan  knew  the 
crossing,  its  danger,  and  his  approach  to  it,  was  conceded.  Hence,  in 
the  face  of  this  admitted  fact,  although  this  evidence  may  have  some 
tendency  to  prove  the  contrary,  the  jury  could  not  find  that  Gahagan 
did  not  know  he  was  approaching  a  place  of  danger,  or  that  the  engi- 
neer ought  to  have  inferred  a  fact  which  it  is  conceded  did  not  exist. 
As  there  is  no  evidence  that  the  defendants  ought  to  have  known  the 
plaintiff's  danger  in  season  to  have  avoided  the  results  of  his  negli- 
gence, they  cannot  be  found  guilty  of  negligence  for  not  doing  so. 

Exceptions  ovemUed. 


Keith,  P.,  in  NORFOLK  &  W.  R.  CO.  v.  DEAN'S  ADM'X 

(1907)  107  Virffinia,  505,  506,  507,  513. 

KEriH,  P.  The  Circuit  Court  .  .  .  rests  the  case  solely  upon  the  second 
count  in  the  declaration,  in  which  the  case  presented  is  that,  after  it  became 
apparent  to  the  crew  in  charge  of  defendant  company's  train  that  intestate  of 
plaintiff  was  on  the  track  in  front  of  the  engine,  that  he  was  unconscious  of  his 
danger,  and  would  take  no  measures  to  protect  himself,  the  crew  failed  to 
use  any  measure  to  prevent  the  accident.  Such  being  the  issue  to  be  deter- 
mined, it  is  needless  to  consider  so  much  of  the  evidence  as  relates  to  the  use  of 


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SECT.  Vin.]  o'kEEFE  v.  CHICAGO,  Ac.  R.  R.  CO.  321 

the  track  as  a  public  passway,  or  as  to  whether  or  not  the  person  injured  was  a 
licensee  or  a  trespasser.  He  was  a  human  being,  and  when  his  dangerous  posi- 
tion was  seen  and  known,  and  that  he  himself  was  unconscious  of  his  peril,  and 
would  take  no  measures  for  his  own  protection,  it  became  the  duty  of  the 
railroad  company  to  do  all  that  could  be  done  consistent  with  its  higher  duties 
to  others  to  save  him  from  the  consequences  of  his  own  act,  regardless  of 
whether  he  was  guilty  of  contributory  negligence  or  not.  Seaboard  &  Roan- 
oke R.  Co.  V,  Joyner's  Adm'r,  92  Va.  355,  23  S.  E.  773. 

This  being  the  narrow  issue  to  be  decided,  it  becomes  necessary  to  consider 
the  evidence  bearing  upon  it  with  care.  .  .  . 

[The  learned  judge  then  considered  the  testimony.  He  found  that  there 
was  no  failure  of  duty  on  the  part  of  the  train  men;  and  he  held  that  the 
demurrer  to  the  evidence  should  have  been  sustained.  He  quoted,  with 
approval,  the  following  statements  of  the  law.] 

In  N.  &  W.  Ry.  Co.  v,  Harman,  83  Va.  577,  8  S.  E.  258,  it  is  said  that "  if  a 
person  seen  upon  the  track  is  an  adult,  and  apparently  in  the  possession  of  his 
or  her  faculties,  the  company  has  a  right  to  presume  that  he  will  exercise  his 
senses  and  remove  himself  from  his  dangerous  position;  and  if  he  fails  to  do 
so,  and  is  injured,  the  fault  is  his  own,  and  there  is,  in  the  absence  of  wilful 
negligence  on  its  part,  no  remedy  against  the  company  for  the  results  of  an 
injury  brought  upon  him  by  his  own  recklessness." 

In  Rangeley  v.  Southern  Ry.  Co.,  95  Va.  715,  30  S.  E.  386,  it  is  said  that  a 
railroad  company  has  the  right  to  assume  that  a  grown  person  seen  on  its 
track  will  get  out  of  the  way  of  an  approaching  train,  and  the  company  is  not 
Uable  imless  it  is  shown  that  after  the  company,  in  the  exercise  of  ordinary 
care,  could  have  discovered  that  he  was  not  going  to  get  off  the  track,  it  could 
have  avoided  the  injury. 


O'KEEFE,  Adm'x,  v.  CHICAGO,  ROCK  ISLAND  &  PACIFIC 
RAILROAD  COMPANY 

Supreme  Court,  Iowa,  October  21, 187L 
Bftported  in  32  Iowa  Reports^  467. 

Appeal  from  Polk  District  Court. 

Action  by  an  administratrix  to  recover  damages  for  the  death  of  her 
husband,  Dennis  O'Keefe,  alleged  to  have  been  killed  by  being  run 
over  on  the  defendant's  road,  through  the  negligence  of  the  defend- 
ant's agents  and  employees.  Defence  in  denial,  and  also  that  the 
death  was  caused  by  the  drunkenness  and  negligence  of  the  plaintiff's 
intestate.  There  was  a  jury  trial,  resulting  in  a  verdict  anci  judgment 
for  plaintiff  for  $1000.    The  defendant  appeals. 

'Cole,  J.  [Omitting^  statement  of  evidence.]  After  the  evidence 
was  closed,  the  defendant  asked  the  court  to  instruct  the  jury  as  fol- 
lows: "  If  you  are  satisfied  from  the  evidence  that  Dennis  O'Keefe, 
plaintiff's  intestate,  was,  a  short  time  before  the  alleged  injury,  in  a 
state  of  intoxication;  that  in  such  condition  he  went  upon  def end- 


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322  PICKETT  V.  WILBnNGTON,  &c.  B.  K.  CO,  [CHAP.  H. 

ant's  raflroad  and  laid  himself  down  upon  the  track,  or  fell  down  un- 
able to  support  himself  because  of  such  intoxication;  that  remaining 
in  that  condition  a  passing  train  crushed  one  of  his  legs;  that  after  the 
injury  he  was  yet  imder  the  influence  of  intoxicating  liquors  drank 
before  the  injury;  that  the  injured  limb  was  amputated  and  death  en- 
sued, you  will  find  for  the  defendant,  unless  you  further  find  from  a 
preponderance  of  the  evidence  that  defendant  or  its  agents  had  knowl- 
edge that  he  was  thus  lying  in  time  to  prevent  the  accident,"  to  which 
the  court  added,  and  then  gave  it,  "  or,  could  have  known  with  the 
exercise  of  ordinary  caviionJ^  This  modification  was  excepted  to  at 
the  time,  and  is  now  assi^ed  as  error. 

The  well-established  law  of  this  state  is,  that  in  an  action  to  recover 
damages  for  the  negligent  act  of  the  defendant,  the  plaintiff  will  not 
be  entitled  to  recover  if  his  own  negligence  contributed  directly  to  the 
injury.  In  other  words,  this  court  recognizes  and  applies  the  doctrine 
of  "  contributory  negligence,"  and  not  the  doctrine  of  "  comparative 
negligence."  The  latter  doctrine  obtains  only  in  Illinois  and  Georgia, 
while  the  former  obtains  in  the  other  states,  and  also  in  the  Federal 
courts.  The  modification  complained  of  ignored  the  doctrine  of  con- 
tributory negligence,  and  substantially  told  the  jury  that  plaintiff 
might  recover  without  regard  to  his  negligence,  if  the  defendant  could 
have  prevented  the  injury  with  the  exercise  of  ordinary  caution.  The 
doctrine  of  the  modification  goes  even  farther  than  that  of  compara- 
tive negligence;  for,  by  the  latter,  a  plaintiff  can  only  recover  when 
he  shows  the  defendant's  negligence  to  have  been  greater,  by  compari- 
son, than  his,  while  by  the  modification  the  plaintiff  might  recover  if 
the  defendant  did  not  exercise  ordinary  caution,  although  the  plain- 
tiff's intestate  may  have  been  guilty  of  a  much  greater  negligence  in 
laying  himself  down,  in  a  condition  of  intoxication,  near  to  or  upon  the 
track.  A  similar  modification  was  made  to  the  second  instruction. 
In  each  there  was  error.  Reversed. 


PICKETT  V.  WILMINGTON  A  WELDON  RAILROAD 
COMPANY 

Supreme  Court,  North  Carolina,  September  Term,  1895. 

Reported  in  117  North  Carolina  Reports,  616. 

Avery,  V^  The  most  important  question  presented  by  the  appeal  is 
whether  the  court  erred  in  refusing  to  instruct  the  jury  that  if  the  plaintiff's 
intestate  deliberately  laid  down  upon  the  track  and  either  carelessly  or  inten- 
tionally fell  asleep  there,  the  defendant  was  not  liable,  unless  the  engineer 
actually  saw  that  he  was  l3dng  there  in  time,  by  the  reasonable  use  of  ap- 
pliances at  his  command,  to  have  stopped  the  train  before  it  reached  him. 
....  ..•.. 

1  Statement  omitted,  also  a  large  part  of  opinion. 


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SECT.  Vin.]        PICKETT  V.  WILMINGTON,  Ac.  R.  R.  CO.  323 

In  Gunter  v^  Wicker,  85  N.  C.  310,  this  court  gave  its  sanction  to  the  prin- 
ciple first  distinctly  formulated  in  Davies  v,  Mann,  10  M.  &  W.  (Ex.)  545, 
that  "  Notwithstanding  the  previous  negligence  of  the  plaintiff,  if  at  the  time 
the  injury  was  done  it  might  have  been  avoided  by  the  exercise  of  reasonable 
care  and  prudence  on  the  part  of  the  defendant,  an  action  will  lie  for  dam- 
ages." This  doctrine  was  subsequently  approved  in  Saulter  v.  Steamship  Co., 
88  N.  C.  123;  Turrentine  v.  Raihx)ad,  92  N.  C.  638;  Meredith  v.  Iron  Co.,  99 
N.  C.  576;  Roberts  v,  Raihx)ad,  88  N.  C.  560;  Farmer  v.  Raih^ad,  Ibid.  564; 
Bullock  V.  Raihx)ad,  105  N.  C.  180;  Wilson  v.  Raiboad,  90  N.  C.  69;  Snowden 
V.  Raiht)ad,  95  N.  C.  93;  Cariton  v,  Raibx)ad,  104  N.  C.  365;  Randall  v.  Rail- 
road, 104  N.  C.  108;  Bullock  v.  Raih^ad,  105  N.  C.  180,  and  it  was  repeatedly 
declared  in  those  cases  that  it  was  negligence  on  the  part  of  the  engineer  of  a 
railway  company  to  fail  to  exercise  reasonable  care  in  keeping  a  lookout  not 
only  for  stock  and  obstructions  but  for  apparently  helpless  or  infirm  human 
beings  on  the  track,  and  that  the  failure  to  do  so  supervening  after  the  negli- 
gence of  another,  where  persons  or  animals  were  exposed  to  danger,  would  be 
deemed  the  proximate  cause  of  any  resulting  injury. 

[As  to  argument  for  defendant.]  But  the  reasons  and  the  authorities  relied 
upon  emanate  generally  from  courts  which  hold  that  both  persons  and  ani- 
mals upon  a  track  are  trespassers  and  entitled  to  consideration  only  where 
actually  seen  in  time  to  save  them.  .  .  . 

It  cannot  be  denied  that,  in  a  number  of  the  states  which  have  adopted  the 
^loctrine  of  Davies  v,  Mann,  it  has  also  been  held  that  both  man  and  beast 
vere  trespassers  when  they  went  upon  a  railway  track  and  except  at  public 
crossings  or  in  towns  it  was  not  the  duty  of  the  engineer  to  exercise  care  in 
looking  to  his  front  with  a  view  to  the  protection  of  either.  Where  the  law 
does  not  impose  the  duty  of  watchfulness  it  follows  that  the  failure  to  watch 
is  not  an  omission  of  duty  intervening  between  the  negligence  of  the  plaintiff 
in  exposing  himself  and  the  accident,  imless  he  be  actually  seen  in  time  to 
avert  it.  The  negligence  of  the  corporation  grows  out  of  omission  of  a  legal 
duty  and  there  can  be  no  omission  where  there  is  no  duty  prescribed. 

We  are  of  opinion  that,  when  by  the  exercise  of  ordinary  care  an  engineer 
can  see  that  a  human  being  is  lying  apparently  helpless  from  any  cause  on  the 
track  in  front  of  his  engine  in  time  to  stop  the  train  by  the  use  of  the  appliances 
at  his  command  and  without  peril  to  the  safety  of  persons  on  the  train,  the 
company  is  liable  for  any  injury  resulting  from  his  failure  to  perform  his  duty. 
If  it  is  the  settled  law  of  North  Carolina  (as  we  have  shown)  that  it  is  the  duty 
of  an  engineer  on  a  moving  train  to  maintain  a  reasonably  vigilant  outlook 
along  the  track  in  his  front,  then  the  failure  to  do  so  is  an  omission  of  a  legal 
duty.  If  by  the  performance  of  that  duty  an  accident  might  have  been 
averted,  notwithstanding  the  previous  negligence  of  another,  then,  tmder  the 
doctrine  of  Davies  v.  Mann,  and  Gunter  v.  Wicker,*  the  breach  of  duty  was 
the  proximate  cause  of  any  injury  growing  out  of  such  accident,  and  where  it  is 
a  proximate  cause  the  company  is  liable  to  respond  in  damages.  Having 
adopted  the  principle  that  one  whose  duty  it  is  to  see  does  see,  we  must  follow 
it  to  its  logical  results.  The  court  committed  no  error  of  which  the  defendant 
could  justly  complain  in  stating  the  general  rule  which  we  have  been 
discussing. 

»  85  N.  C.  310. 


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324  DYERSON  V.  UNION  PACIFIC  R.  R.  CO.  [CHAP.  H, 


DYEBSON  V.  UNION  PACIFIC  RAILROAD  COMPANY 

Supreme  Court,  Kansas,  November  10, 1906. 

Reported  in  74  Kansas  ReportSj  528. 

PiAiNTiFF  sued  for  damages  caused  by  being  struck  by  the  tender  of  an 
engine. 

Plaintiff,  an  employee  of  the  R.  R.  Co.,  had  occasion  to  cross  the  track-  As 
he  was  about  to  step  upon  the  track,  he  was  struck  by  the  tender  of  a  locomo- 
tive which  was  backing  east  at  the  rate  of  fifteen  or  twenty  miles  an  hour  with- 
out giving  a  signal  of  its  approach  and  without  keeping  a  lookout  along  the 
track.  The  track  was  straight  for  a  quarter  of  a  mile  west.  It  was  a  clear  day, 
and  there  was  nothing  to  have  prevented  the  plaintiff  from  seeing  the  engine 
and  tender  if  he  had  looked.^ 

At  the  trial,  the  court  rendered  judgment  against  plaintiff  upon  his  petition 
and  preliminary  statement  to  the  jury  which  disclosed  the  above  facts.  Plain- 
tiff brought  error. 

Mason,  J. 

Finally  it  is  contended  in  behalf  of  the  plaintiff  that,  even  admitting  his  own 
want  of  care  to  have  been  such  as  would  ordinarily  bar  a  recovery,  still  he  had 
a  right  to  submit  to  the  jury  the  question  whether  the  employees  in  charge  of 
the  engine  by  the  use  of  reasonable  diligence  could  have  discovered  his  negli- 
gence in  time  to  avert  the  accident,  and  that  an  affirmative  answer  would  have 
entitled  him  to  a  verdict. 

In  a  number  of  cases  it  has  been  held  that  if  the  engineer  by  the  exercise  of 
reasonable  diligence  could  have  learned  that  danger  was  imminent  but  did  not 
do  so,  the  liability  of  the  company  will  be  determined  in  all  respects  as  though 
he  had  in  fact  become  aware  of  it,  the  constructive  knowledge  being  ap- 
parently deemed  the  equivalent  of  actual  knowledge.  It  is  difficult  or  im- 
possible to  reconcile  the  decisions  upon  this  and  related  questions,  or  to  derive 
from  them  any  generally  accepted  statement  either  of  principle  or  result. 
Many  of  them  are  collected  and  discussed  in  chapter  ix  of  volume  i  of  Thomp- 
son's Commentaries  on  the  Law  of  Negligence,  especially  in  sections  222  to 
247. 

There  seems,  however,  to  be  no  sufficient  reason  why  the  mere  fact  that  a 
defendant  is  negligent  in  failing  to  discover  a  plaintiff's  negligence,  or  his  dan- 
ger, should  in  and  of  itself  exclude  all  consideration  of  contributory  negligence. 
Take  the  not  unusual  situation  of  a  train  being  negligently  operated,  let  us  say 
by  being  run  at  too  high  a  speed  and  without  proper  signals  of  warning  being 
given.  Now,  any  one  injured  as  a  result  of  such  negligence  has  prima  facie  a 
right  to  recover.  But,  if  his  own  n^gence  has  contributed  to  his  injury,  then 
ordinarily  his  right  is  barred.  How  is  the  situation  altered  if  the  railroad  em- 
ployees add  to  their  ne^gence  in  regard  to  speed  and  signals  the  negligence  of 
failing  to  keep  a  sufficient  lookout  ?  The  negligence  is  of  the  same  sort ;  and,  if 
the  contributory  negligence  of  the  person  injured  prevents  a  recovery  when 

^  Statement  abridged.    Part  of  opinion  omitted. 


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SECT.  Vni.]     DYERSON  V.  UNION  PACIFIC  R.  R.  CO.  325 

but  the  two  elements  of  negligence  are  present,  consistency  requires  that  it 
should  have  the  same  effect  although  a  third  element  is  added.  If  in  the  pres- 
ent case  the  plaintiff  was  entitled  to  recover  in  spite  of  his  own  negligence  it 
must  be  because  the  order  of  its  occurrence  with  respect  to  that  of  the  defend- 
ant made  the  latter  the  proximate  cause  of  the  injury.  This  indeed  is  his 
contention,  and  to  support  it  reliance  is  placed  upon  the  following  text,  which 
was  quoted  with  approval  in  Railway  Co.  v,  Arnold,  67  Kan.  260,  72  Pac.  867, 
and  the  substance  of  which  is  to  be  found  also  in  volume  xx  of  the  American 
and  English  Encyclopaedia  of  Law,  at  page  137:  — 

"  And  upon  the  principle  that  one  will  be  charged  with  notice  of  that  which 
by  ordinary  care  he  might  have  known,  it  is  held  that  if  either  party  to  an 
action  involving  the  questions  of  negligence  and  contributory  negligence 
should,  by  the  exercise  of  ordinary  care,  have  discovered  the  negligence  of  the 
other,  after  its  occurrence,  in  time  to  foresee  and  avoid  its  consequences,  then 
such  party  is  held  to  have  notice;  and  his  negligence  in  not  discovering  the 
negli^noe  of  the  other,  under  such  circumstances,  is  held  the  sole  proximate 
cause  of  a  following  injury."    (7  A.  &  E.  Encycl.  of  L.  387.) 

This  may  be  accepted  as  a  correct  statement  of  a  principle  of  imiversal 
application,  according  with  both  reason  and  authority,  provided  the  words 
"  after  its  occurrence  "  be  interpreted  to  mean  after  the  person  concerned  had 
ceased  to  be  negligent.  The  rule  that  under  the  circumstances  stated  the 
neglect  of  one  party  to  discover  the  omission  of  the  other  is  to  ^  held  to  be  the 
sole  proximate  cause  of  a  resulting  injury  is  not  an  arbitrary  but  a  reasonable 
one.  The  test  is,  What  wrongful  conduct  occasioning  an  injury  was  in  opera- 
tion at  the  very  moment  it  occurred  or  became  inevitable  ?  If  just  before  that 
climax  only  one  party  had  the  power  to  prevent  the  castastrophe,  and  he 
neglected  to  use  it,  the  legal  responsibility  is  his  alone.  If,  however,  each  had 
such  power,  and  each  neglected  to  use  it,  then  their  negligence  was  concurrent 
and  neither  can  recover  against  the  other.  As  is  said  in  the  paragraph  from 
which  the  foregoing  quotation  is  made,  "  it  is  only  when  the  n^ligence  of  one 
party  is  subsequent  to  that  of  the  other  that  the  rule  can  be  invoked."  In  a 
note  printed  in  volume  ii  of  the  supplement  to  the  American  and  English 
Encyclopaedia  of  Law,  at  page  64,  many  recent  cases  are  cited  bearing  on  the 
subject,  and  it  is  said:  —  ' 

"  This  so-called  exception  to  the  rule  of  contributory  n^gence  (t.  e.,  the 
doctrine  of  '  the  last  clear  chance  ')  will  not  be  extended  to  cases  where  the 
plaintiff's  own  negUgence  extended  up  to  and  actually  contributed  to  the  in- 
jury. To  warrant  its  application  there  must  have  been  some  new  breach  of 
duty  on  the  part  of  the  defendant  subsequent  to  the  plaintiff's  n^ligence."   ' 

In  the  present  case  it  may  be  granted  that  the  n^ligence  of  the  plaintiff 
began  when  he  walked  between  the  track  and  the  ice-box  on  the  way  to  get  the 
bucket,  and  that  the  employees  in  charge  of  the  engine  were  themselves  n^li- 
gent  in  not  discovering  this  negligence  on  his  part  and  the  peril  to  which  it  ex- 
posed him,  and  taking  steps  to  protect  him.  But  his  negligence  as  well  as  theirs 
continued  up  to  the  moment  of  the  accident,  or  until  it  could  not  possibly 
be  averted.  His  opportunity  to  discover  and  avoid  the  danger  was  at  least  as 
good  as  theirs.  His  want  of  care  existing  as  late  as  theirs  was  a  concurring 
cause  of  his  injury,  and  bars  his  recovery.  This  determination  is  entirely 
consistent  with  what  Mr.  Thompson  in  his  work  above  cited  has  styled  the 
**  last  clear  chance  "  doctrine,  as  is  obvious  from  a  consideration  of  the  terms 
in  which  it  is  stated.   As  originally  announced  it  was  thus  phrased :  — 


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326  DYERSON  V.  UNION  PACIFIC  R.  R.  CO.  [CHAP.  II. 

"  The  party  who  has  the  last  opportunity  of  avoiding  accident  is  not  ex- 
cused by  the  negligence  of  any  one  else.  His  negUgenoe,  and  not  that  of  the 
one  first  in  fault,  is  the  sole  proximate  cause  of  the  injury."  (1  Shear.  &  Red. 
Law  of  Neg.,  5th  ed.,  §  99.) 

Mr.  Thompson  rewords  it  as  follows:  — 

"  Where  both  parties  are  negligent,  the  one  that  had  the  last  clear  opportu- 
nity to  avoid  the  accident,  notwithstanding  the  negligence  of  the  other,  is 
solely  responsible  for  it  —  his  negligence  being  deemed  the  direct  and  proxi- 
mate cause  of  it."     (1  Thomp.  Com.  Law  Neg.  §  240.) 

Expressions  are  to  be  found  in  the  reports  seemingly  at  variance  with  the 
conclusion  here  reached,  but  for  the  most  part  the  decisions  holding  a  defend- 
ant liable  for  failure  to  discover  and  act  upon  the  plaintiff's  n^ligence  were 
made  in  cases  which  were  in  fact  like  Railway  Co.  v,  Arnold,  67  Kan.  260,  72 
Pac.  857,  or  were  decided  upon  the  theory  that  they  fell  within  the  same  rule. 
There  the  plaintiff's  decedent  while  riding  a  bicycle  was  through  his  own  fault 
run  into  by  a  street  car;  he  clung  to  the  fender,  was  carried  some  seventy-five 
feet,  then  fell  tmder  the  wheels,  and  was  killed.  A  judgment  against  the 
street-car  company  was  upheld  only  upon  the  theory  that  after  he  had  reached 
a  position  of  danger  from  which  he  could  not  extricate  himself  —  that  is,  after 
his  negligence  had  ceased  —  the  defendant's  employees  were  urgent  in 
in  failing  to  discover  his  peril  and  stop  the  car. 

Li  Robinson  r.  Cone,  22  Vt.  213,  54  Am.  Dec.  67,  the  writer  of  the  opinion 
said:  — 

''  I  should  hesitate  to  say  that  if  it  appeared  that  the  want  of  ordinary  care 
on  the  part  of  the  plaintiff,  at  the  very  time  of  the  injury ^  contributed  either  to 
produce  or  to  enhance  the  injury,  he  could  recover;  because  it  seems  to  me 
that  is  equivalent  to  saying  that  the  plaintiff,  by  the  exercise  of  ordinary  care 
at  the  time,  could  have  escaped  the  injury."     (Page  223.) 

The  principle  thus  intimated  was  embodied  in  a  decision  in  French  v.  The 
Grand  Trunk  Railway  Co.,  76  Vt.  441,  58  Atl.  722,  where  it  was  said:  — 

It  is  true  that  when  a  traveller  has  reached  a  point  where  he  cannot  help 
himself,  cannot  extricate  himself,  and  vigilance  on  his  part  will  not  avert  the 
injury,  his  negligence  in  reaching  that  position  becomes  the  condition  and  not 
the  proximate  cause  of  the  injury,  and  will  not  preclude  a  recovery;  but  it  is 
equally  true  that  if  a  traveller,  when  he  reaches  the  point  of  collision,  is  in  a 
situation  to  help  himself,  and  by  a  vigilant  .use  of  his  eyes,  ears,  and  physical 
strength  to  extricate  himself  and  avoid  injury,  his  negligence  at  that  point  will 
prevent  a  recovery,  notwithstanding  the  fact  that  the  trainmen  could  have 
stopped  the  train  in  season  to  have  avoided  injuring  him.  In  such  a  case  the 
negligence  of  the  plaintiff  is  concurrent  with  the  negligence  of  the  defendant, 
and  the  negligence  of  each  is  operative  at  the  time  of  the  accident.  When  neg- 
ligence is  concurrent  and  operative  at  the  time  of  the  collision,  and  contributes 
to  it,  there  can  be  no  recovery."     (Page  447.) 

To  the  same  effect  are  these  extracts:  — 

[As  to  the  rule  holding  the  defendant  liable  notwithstanding  the  contribu- 
tory n^ligence  of  the  plaintiff.] 

Of  the  same  rule  it  was  said  in  O'Brien  v.  McGlinchy,  68  Me.  552: 
"  This  rule  applies  usually  in  cases  where  the  plaintiff  or  his  property  is  in 
some  position  of  danger  from  a  threatened  contact  with  some  agency  under  the 
control  of  the  defendant  when  the  plaintiff  cannot  and  the  defendant  can  pre- 


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SECT.  Vni.]  CLEVELAND   R.  CO.  V.  KLEE  .    327 

vent  an  injury.  .  .  .  But  this  principle  would  not  govern  where  both  parties 
are  contemporaneously  and  actively  in  fault,  and  by  their  mutual  carelessness 
an  injury  ensues  to  one  or  both  of  them."    (Pages  557,  558.) 

In  Smith  v,  Raihx)ad,  114  N.  C.  728, 19  S.  E.  863,  25  L.  R.  A.  287,  the  gen- 
eral rule  was  thus  concretely  stated:  — 

**  Applying  the  rule  which  we  have  stated  to  accidents  upon  railroad  tracks, 
it  may  be  illustrated  as  follows:  First,  there  must  be  a  duty  imposed  upon  the 
engineer,  as  otherwise  there  can  be  no  negligence  to  which  the  negligence  of  the 
injured  party  is  to  contribute.  The  duty  under  consideration  is  to  keep  a  vigi- 
lant lookout  .  .  .  in  order  to  discover  and  avoid  injury  to  persons  who  may  be 
on  the  track  and  who  are  apparently  in  unconscious  or  helpless  peril.  When 
such  a  person  is  on  the  track  and  the  engineer  fails  to  discover  him  in  time  to 
avoid  a  collision,  when  he  could  have  done  so  by  the  exercise  of  ordinary  care, 
the  engineer  is  guilty  of  negligence.  The  decisive  negligence  of  the  engmeer  is 
when  he  has  reached  that  point  when  no  effort  on  his  part  can  avert  the  col- 
lision. Hence,  if  A,  being  on  the  track  and  after  this  decisive  negligence,  fails 
to  look  and  listen  and  is  in  consequence  run  over  and  injured,  his  n^gence  is 
not  concurrent  merely  but  really  subsequent  to  that  of  the  engineer,  and  he 
cannot  recover,  as  he  and  not  the  engmeer  has  *  the  last  clear  opportunity  of 
avoiding  the  accident.'  If,  however,  A  is  on  the  track  .  .  .  and  while  there, 
and  before  the  decisive  negligence  of  the  engineer,  he  by  his  own  negligence 
becomes  so  entan^ed  in  the  rails  that  he  cannot  extricate  himself  in  time  to 
avoid  the  collision,  and  his  helpless  condition  could  have  been  discovered  had 
the  engineer  exercised  ordinary  care,  then  the  negligence  of  A  would  be  pre- 
vious to  that  of  the  engineer,  and  the  engineer's  negligence  would  be  the 
proximate  cause,  he,  and  not  A,  having  the  last  clear  opportunity  of  avoiding 
the  injury.  The  same  result  would  follow  in  the  case  of  a  wagon  negligently 
stalled,  when  no  effort  of  the  owner  could  remove  it,  and  there  are  other  cases 
to  which  the  principle  is  applicable."    (Pages  756,  756.) 

The  principle  running  through  these  cases  is  reasonable  and  is  consistent 
with  the  general  rules  that  have  met  with  practically  universal  acceptance. 
Applied  to  the  facts  of  this  case  it  requires  an  affirmance  of  the  judgment. 

All  the  Justices  conciuring. 


Baker,  J.,  IN  CLEVELAND  R.  CO.  v.  KLEE 

(1900)  164  Indiana,  430,  434,  436. 

Baker,  J.  It  is  alleged  in  the  fifth  paragraph:  "  That  on  or  about  the  22d 
day  of  June,  1894,  this  plaintiff,  a  child  nine  years  of  age,  was  on  the  said  cross- 
ing of  Georgia  and  Helen  streets  and  upon  said  track  of  said  defendant  in  said 
Georgia  Street;  and  while  in  said  position  and  place,  the  defendant  through 
and  by  its  said  employees  and  servants,  ran  said  locomotive  against  this  plain- 
tiff and  negligently  dragged  this  plaintiff  without  fault  or  negligenoe  on  his 
part,  a  long  distance,  to  wit,  two  hundred  feet;  that  the  defendant  knew  that 
it  had  run  its  locomotive  against  this  plaintiff  at  said  crossing;  and  knew  that 
it  had  knocked  this  plaintiff  down  in  front  of  its  said  locomotive  upon  its  said 
track;  and  knew  that  this  plaintiff  was  dragging  in  front  of  said  locomotive  on 
said  tmck;  but  that  this  defendant  negligently  failed  to  stop  said  locomotive 
before  this  plaintiff  was  injured,  although  by  the  exercise  of  due  care  and  cau- 
tion it  could  have  stopped  said  locomotive  before  this  plaintiff  was  injured; 


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328     N  HOLMES  V.  MISSOURI  PACIFIC  RY.  CO.  [CHAP.  U. 

but  negligently  dragged  this  plaintiff  as  aforesaid,  without  fault  or  ne^gence 
on  the  part  of  this  plaintifif,  and  n^ligently  injured  this  plaintiff  in  his  body, 
back,  and  limbs."  The  injury  for  which  compensation  is  sought  in  this  para- 
graph was  not  sustained  in  the  collision  at  the  crossing,  but  was  wholj^  in- 
flicted after  appellant  knew  that  appellee  was  being  dragged  along  the  track  in 
front  of  the  engine.  By  the  exercise  of  due  care  appellant  could  have  stopped 
the  engine  before  appellee  was  injured,  but  failed  to  do  so.  Appellee,  after 
being  struck  and  whOe  being  dragged  along  the  track,  was  free  from  fault  con- 
tributing to  his  injury.  These  allegations  constitute  a  cause  of  action.  Though 
the  paragraph  confesses,  by  not  denying,  that  appellee  was  guilty  of  negligence 
in  being  upon  the  track,  that  negligence  was  only  the  remote  condition,  not 
the  proximate  cause,  of  the  injury  complained  of;  for  the  injury  resulted,  after 
the  collision,  entirely  from  occurrences  in  which  it  is  alleged  that  appellant 
was  negligent  and  appellee  was  not. 


HOLMES  V.  MISSOURI  PACIFIC  RAILWAY  COMPANY 

Supreme  Court,  Missoxtri,  November  27, 1907. 

Reported  in  207  Missouri  Reports,  149. 

AcnoN  by  C.  W.  Holmes  and  wife  to  recover  for  the  death  of  their  child, 
F.  G.  Holmes.  The  child,  eight  years  old,  was  struck  and  killed  by  a  locomo- 
tive engine  at  the  crossing  of  an  avenue.  Two  points  in  conflict  were,  whether 
defendant  was  negligent,  and  whether  the  child  was  contributorily  n^gent. 

The  following  instruction  was  given  at  plaintiff's  request:  "  (4)  If  the  jury 
believe  from  the  evidence  that  Freeborn  G.  Holmes  was  a  boy  of  immature 
age,  and  had  not  the  capacity  of  an  adult,  and  that  he  exercised  such  care  as 
ou^t  reasonably  to  have  been  expected  for  one  of  his  age  and  capacity,  then 
he  was  not  guilty  of  contributory  negligenoe." 

To  this  instruction  defendant  excepted. 

An  instruction  given  at  the  request  of  defendant  was,  that,  if  the  child  failed 
to  exercise  such  care  and  caution  as  an  ordinarily  prudent  boy  of  his  age  and 
capacity  should  have  exercised  under  the  circumstances,  and  by  reason  thereof 
contributed  to  his  own  death,  then  your  verdict  must  be  for  the  defendant, 
regardless  of  all  other  facts  in  the  case. 

Verdict  for  plaintiff.  Judgment  for  plaintiff  in  Circuit  Court.  Defendant 
appealed.* 

Valliant,  J.  .  .  .  In  the  brief  for  defendant,  pages  61  and  139,  the  idea  is 
advanced  that  the  only  theory  on  which  the  plaintiffs'  judgment  could  be  sus- 
tained would  be  that  the  defendant  is  hable  for  the  consequences  of  the  reck- 
less conduct  of  the  deceased  child.  That  is  a  misconception  of  the  theory  on 
which  the  defendant's  liability  rests.  The  defendant  is  liable  only  for  its  own 
negUgence,  and  if  its  plea  of  contributory  negligence  is  not  sustained,  still,  it  is 
not  charged  with  the  consequence  of  the  child's  neghgence;  but  it  is  only  not 
excused  thereby  for  the  result  of  its  own  negligence.  It  is  not  alwajrs  essential 
to  a  plaintiff's  recovery,  in  an  action  for  tort,  that  the  evidence  should  show 
that  the  accident  was  the  result  of  the  defendant's  negligence  alone.    A  de- 

1  The  statement  has  been  abridged  anrl  the  arguments  and  part  of  the  opinion 
are  omitted. 


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SECT.  Vin.]        CTJLBEBTSON  V.  CRESCENT  CITY  R.  R,  CO.  329 

fendant  may  be  liable  if  his  ne^genoe  oontributes  with  that  of  a  third  person 
to  produce  the  injury  complained  of;  in  such  case  he  is  not  held  liable  for  the 
negligence  of  the  third  person,  but  only  for  his  own  negUgence,  without  the 
contributing  force  of  which  the  negligence  of  the  third  person  would  not  have 
caused  the  injury.  But  the  policy  of  the  law  is  such  that  ordinarily  a  defend- 
ant guilty  of  ne^^ligence  is  relieved  from  the  liabihty  for  his  own  conduct  if  the 
person  injured  was  himself  guilty  of  negligence  that  contributed  to  the  result. 
On  that  theory  the  defendant's  act  is  none  the  less  negligent,  and  he  is  none  the 
less  culpable,  but  the  law  will  not  allow  a  plaintiff  to  recover  when  he  himself, 
or  the  person  for  whose  injury  he  sues,  was  also  guilty  of  negligence  contribut- 
ing with  that  of  defendant  to  the  result.  There  is  reason  and  justice  in  that 
policy  of  the  law;  it  is  an  admonition  to  every  one  to  exercise  due  care  for  his 
own  safety,  and  it  authorizes  another  to  presume  that  he  will  do  so,  and,  so 
presuming,  adjust  his  own  conduct.  But  common  experience  tells  us  that  a 
child  may  be  too  young  and  immature  to  observe  the  care  necessary  to  his  own 
preservation  and  therefore  when  a  person  comes  in  contact  with  such  a  child, 
if  its  youth  and  immaturity  are  obvious,  he  is  chargeable  with  knowledge  of 
that  fact  and  he  cannot  indulge  the  presiunption  that  the  child  will  do  what  is 
necessary  to  avoid  an  impending  danger.  Therefore  one  seeing  such  a  child  in 
such  a  position  is  guilty  of  negligence  if  he  does  not  take  into  account  the  fact 
that  it  is  a  child  and  regulate  his  own  conduct  accordingly.^  An  act  in  relation 
to  a  person  of  mature  years  might  be  free  from  the  imputation  of  negligence 
while  an  act  of  like  character  in  view  of  a  child  would  be  blameworthy.  There- 
fore when  the  law  says  to  the  defendant  although  the  act  of  the  deceased  child 
contributed  with  your  act  to  produce  the  result,  yet,  because  of  his  youth  and 
immaturity,  he  is  not'adjudged  guilty  of  negligence,  it  does  not  charge  the  de- 
fendant with  the  cdtisequence  of  the  child's  conduct,  but  it  only  does  not,  for 
that  reason,  excuse  him  for  its  [his]  own  negligence. 

If  the  defendant  in  such  case  had  been  guilty  of  no  n^ligence  there  would 
have  been  no  accident.  Judgment  affirmed. 

Gantt,  C.  J.,  and  Btjbobss,  Lamm,  and  Woodson,  JJ.,  concur.  Fox  and 
Gravis,  JJ.,  dissent. 


CXJLBERTSON  v.  CRESCENT  CITY  RAILROAD  CO. 

Supreme  Court,  Louisiana,  April  6,  1896. 

Reported  in  48  Lomaiana  Annual  ReportSf  Part  2,  137G. 

Plaintiff  sued  for  the  killing  of  his  son,  6  years  and  11  months  old,  who 
was  hit  by  a  car  at  a  street  crossing. 

In  the  District  Court,  there  was  a  verdict  for  plaintiff,  and  judgment 
thereon.    Defendant  appealed.' 

Breaux,  J.   [After  stating  the  claims  of  both  parties,  and  reciting  the  testi- 
mony of  plaintiff's  witnesses  and  of  part  of  defendant's  witnesses.] 

The  motorman  and  the  conductor  substantially  testify  that  everything 
was  done  to  prevent  the  accident;  that  the  boy  darted  in  front  of  the  car  and, 
that  the  motorman  quickly  stopped  the  car. 

*  See  also  Weitzman  v.  Nassau  R.  Co.,  33  App.  Div.  585;  Green  v.  Metropolitan 
R.  Co.,  42  App.  Div.  160. 
'  Statement  abridged. 


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330  HUTCHINSON  V.  ST.  LOUIS,  Ac.  R.  R.  CO.        [CHAP.  II. 

After  as  careful  and  close  an  analysis  of  the  evidence  as  it  was  possible  for 
us  to  make,  we  think  that  the  weight  of  the  testimony  is  with  the  defendant. 

PlaintiflF's  theory  that  the  little  boy  was  standing  on  the  track,  between  the 
rails,  and  that  the  motorman  ought  to  have  seen  him,  is  not  sustained  by  the 
evidence  of  his  own  witnesses;  they  do  not  testify,  with  any  degree  of  cer- 
tainty, where  he  was  just  preceding  the  accident.  The  witnesses  for  the 
defendant  agree  in  stating  that  he  was  not  on  the  track,  and  that  the  accident 
was  occasioned  by  the  sudden  act  of  the  child. 

Granted  as  contended  by  the  plaintiff  that  the  motorman  did  not  see  the 
child  before  he  was  knocked  down  by  the  fender:  if  the  child  had  escaped  his 
attention,  because  of  his  sudden  and  unanticipated  act  itself,  it  becomes  evi- 
dent that  the  defendant  is  not  liable.  Whether  he  was  seen  or  was  not  seen  by 
the  motorman  would  not  render  the  defendant  responsible,  if  owing  to 
thoughtless  impulse  of  the  child  he  brought  about  the  accident  by  a  sudden 
act  which  could  not  be  foreseen  or  guarded  against  by  the  motorman  or  any 
one  else  in  charge  of  the  car. 

This  brings  us  to  the  question  of  contributory  negligence.  Courts  are 
averse  to  finding  children  guilty  of  contributory  negligence,  and  are  readily 
and  properly  inclined  to  disregard  the  thoughtlessness  natural  to  boyhood,  but 
accidents  may  happen  for  which  the  unconscious  agent  may  not  be  responsible. 

The  fact  tiiat  a  child  may  not  be  capable  of  contributory  negligence  does 
not  always  render  a  defendant  liable  upon  the  mere  proof  of  the  injury.  The 
test  is  negligence  vd  non,  K  the  defendant  or  the  defendant's  agent  or  em- 
ployee was  not  negligent,  it  is  not  liable. 

The  only  alternative,  after  the  conclusion  reached,  is  to  set  aside  the  ver- 
dict. 

The  verdict  and  judgment  are  reversed,  annulled  and  avoided. 

The  demand  of  plaintiff  is  rejected  and  his  action  dismissed  at  his  cost  in 
both  courts.* 


HUTCHINSON  v.  ST.  LOUIS  &  MERAMEC  RIVER  RAII^ 
ROAD  COMPANY 

St.  Louis  Court  op  Appeals,  Missouri,  April  9, 1901. 

Reported  in  88  Missouri  Appeal  ReportSf  376. 

Appeal  from  St.  Louis  City  Circuit  Court. 

Plaintiff  (respondent)  was  injured  while  driving  on  the  track  of  the 
street  railroad  at  the  crossing  of  two  streets.  The  car  collided  with 
the  rear  of  his  wagon.  Plaintiff  testified  that  he  had  been  driving  for 
some  three  hundred  yards  with  theleft  wheels  of  his  wagon  inside  the 
north  rail.  Defendant's  (appeUant's)  testimony  tended  to  prove  that 
plaintiff  did  not  drive  on  the  track  until  he  had  either  reached  or  was 
near  the  crossing,  and  that  he  then  tiuued  and  drove  onto  the  track, 

1  In  Kierzenkowski  v,  Philadelphia  Traction  Co.,  184  Pa.  St.  459,  the  plaintiff 
was  a  girl  three  years  old,  who  had  been  knocked  down  by  one  of  defendant's 
horse  cars.    The  court  (inter  alia)  instructed  the  jury,  in  substance,  as  follows:  — 

The  law  does  not  allow  that  children  of  this  age  can  be  guilty  of  contributory 
negligence;  but  you  are  obliged  to  consider  the  case  as  to  the  negligence  alone  oi 


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SECT.  Vni.]    HUTCHINSON  V.  ST.  LOUIS,  Ac.  R.  R.  CO.  331 

when  the  motor  car  coming  up  from  behind  collided  with  the  rear  of 
his  wagon. 

What  is  imdisputed  is,  that  he  did  not  look  back  to  see  if  a  car  was 
coming  before  attempting  to  cross,  nor,  according  to  his  own  testi- 
mony, after  he  drove  onto  the  track  three  hmidred  yards  or  more  to 
the  east.  He  drove  very  slowly.  There  was  testimony  tending  to 
show  the  motomeer  in  charge  of  the  car  was  watching  a  train  on  the 
railroad  just  south  of  Manchester  avenue,  which  inattention  pre- 
vented him  from  observing  plaintiff's  perilous  position  until  the  car 
was  within  twenty  or  thirty  feet  of  the  wagon.  He  was  required  by  a 
city  ordinance,  to  be  watching  the  track. 

The  evidence  as  to  the  warning  of  the  car's  approach  was  con- 
flicting. 

The  plaintiff  was  entitled  to  the  use  of  the  entire  street,  and,  there- 
fore, was  not  a  trespasser,  while  the  defendant  was  entitled  to  the 
right  of  way. 

Failure  to  signal  the  car's  approach  was  omitted  from  the  instruc- 
tions. The  only  groimd  of  recovery  submitted  to  the  jury  was  alleged 
negligence  of  the  defendant's  motomeer  in  not  using  ordinaiy  care  to 
avoid  injuring  plaintiff  after  he  knew,  or  by  the  proper  care  might  have 
known,  the  latter  was  in  a  dangerous  position.  One  instruction  was 
given  that  plaintiff  was  guilty  of  contributory  negligence  if  he  failed 
to  look  back  at  reasonable  intervals  to  see  if  a  car  was  coming  and  to 
get  off  the  track  if  lie  saw  one.  This  was  practically  telling  them  he 
was  actually  negligent,  for  he  admitted  he  did  not  look  back. 

GooDE,  J.  The  general  principle  on  which  the  case  was  referred  to 
the  jury,  commonly  styled  the  humane  doctrine,  is  weU  supported  by 
authorities.  It  is  accepted  in  some  form  in  most  of  the  state  and  fed- 
eral jurisdictions.  So  far  as  this  court  is  concerned,  the  rule  is  no 
longer  debatable.  All  uncertainty  about  it  being  a  substantive  part 
of  the  law  of  torts  has  been  set  at  rest  by  recent  deliberate  pronoxmce- 
ments  of  the  Supreme  Court.  The  authority  of  the  rule  is  not  im- 
pugned by  the  learned  counsel  for  the  appellant,  who  only  insist  that 
it  is  inapplicable  to  the  cause  in  hand  on  account  of  the  plaintiff's 
clear  contributory  negligence  which  continued  to  the  moment  of  the 
collision.  This  contention  requires  a  brief  examination  of  some  cases 
in  which  the  doctrine  has  been  applied.  They  divide  into  two  classes 
and  the  disputation  which  has  raged  over  it  has  been  on  the  border 
line  between  the  two.    As  enforced  in  one  class,  the  rule  has  always 

the  defendant.  If  you  were  driving  along  the  street  with  your  horse  and  wagon, 
and  a  child  runs  under  the  feet  of  the  horses  and  is  killed,  vou  are  not  responsible; 
not  because  the  child  is  guilty  of  contributory  nedigence,  but  because  you  are  not 
guilty  of  negligence.  If  it  is  an  unavoidable  accident,  you  are  not  responsible.  If 
the  jury  bebeve  from  the  evidence  in  this  case  that  the  child  suddenly  and  unex- 
pectedly appeared  in  the  vicinity  of  the  track  under  such  circumstances  that  the 
driver  of  tne  car  could  not  have  discovered  its  presence  in  time  to  avoid  the  acci- 
dent, the  verdict  must  be  for  the  defendant. 
An  exception  to  the  charge  was  overruled. 


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332  HUTCHINSON  V.  ST.  LOUIS,  Ac.  R.  R.  CO.        [CHAP.  II. 

seemed  to  the  writer  to  be  a  phase  of  the  doctrine  of  proximate  cause, 
consistent  with  the  theory  of  the  entire  law  of  negligence  and  without 
which  the  system  would  be  incomplete.  These  instances  are  where 
the  plaintiff's  negligent  act  was  detached  from  the  injury  so  that  the 
defendant's  want  of  care  was  the  sole  active  agency  in  inflicting  it. 
When  an  accident  happens  xrnder  such  circumstances,  the  plaintiff 
ought  not  to  be  refused  a  recovery  because,  though  remiss,  his  fault 
does  not  contribute  to  the  injury.  Illustrations  of  this  class  of  cases 
are  numerous  in  the  books,  beginning  with  the  one  from  which  all  the 
others  proceeded.  Davies  v.  Mann,  10  Mees.  &  W.  546,  where  the 
plaintiff  had  carelessly  fettered  his  beast  in  the  highway  and  the  de- 
fendant's servant  drove  over  him.  It  is  manifest  that  the  original 
negligence  of  the  owner  was  separated  from  the  injury,  which  was 
proximately  caused  solely  by  the  defendant's  tort.  Another  apt 
illustration  is  found  in  the  Reardon  case  (114  Mo.  384),  where  the 
plaintiff  carelessly  went  on  the  railway  track  and  fell  in  endeavoring 
to  get  off  when  he  saw  a  train  coming.  It  was  held  that  if  the  engineer 
failed  to  employ  ordinary  care  to  stop  the  train  when  he  saw  him 
prostrate,  the  company  was  liable.  The  same  ruling  has  been  made  in 
actions  where  plaintiffs  had  f aUen  asleep  on  tracks  or  become  fastened 
in  cattle  guards  or  switches  or  where  the  person  hurt  was  a  child  or 
otherwise  not  of  full  l^al  capacity  (Gabel  v.  Railway  Co.,  60  Mo. 
475).  The  doctrine  is  exclusively  met  with,  so  far  as  our  reading  has 
shown,  in  controversies  arising  from  injuries  due  to  violent  impacts 
and  collisions.  The  above  instances  exemplify  its  use  in  such  cases 
where  properly  expounded,  it  does  not  clash  with  the  doctrine  of  con- 
tributory n^Ugence,  though  some  of  the  applications  made  have  laid 
it  open  to  that  charge.  The  reconciliation  and  harmonious  working 
of  the  two  rules  may  be  achieved  by  considering  closely  whether  the 
defendant's  carelessness  was  alone  the  proximate  cause  of  the  injury. 
If  only  the  defendant's  was  the  proximate  cause,  the  plaintiff,  while 
guilty  of  negligence,  was  not  guilty  of  contributory  n^ligence;  his 
failure  to  use  care  did  not  proximately  contribute  to  the  mischief. 
Time  elapsed  between  his  wrongfid  act  and  the  injury,  during  which 
the  wrongfid  act  of  the  defendant  supervened  or  entered,  as  a  separ- 
ate agency,  which,  by  its  own  independent  action,  wrought  the 
unfortunate  result.  If,  however,  the  plaintiff's  want  of  care  continues 
to  the  instant  of  the  accident,  or  so  near  the  instant  as  to  be  imme- 
diately influential  in  producing  it,  he  is  as  much  to  blame  as  the  de- 
fendant, and  if  the  latter  is  compeUed  to  compensate  him,  the  theory 
of  the  law  of  negligence  is  thus  far  abandoned.  When  it  is  deemed 
expedient  to  allow  a  recovery  under  such  circumstances,  it  must  be 
done  as  a  measure  of  public  policy.  The  rule  then  becomes,  in  fact, 
an  exception  to  the  law  of  contributory  negligence,  as  was  said  in 
Kelly  V.  Railway  Co.,  101  Mo.  67.  The  real  basis  of  it,  as  it  obtains 
in  many  jurisdictions  in  respect  to  injuries  by  cars  and  locomotives 
when  the  injured  individual  was  negligent  to  the  very  instant  of  the 


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SECT.  Vni.]        HUTCHINSON  V.  ST.  LOUIS,  Ac.  R.  R.  CO.  333 

collision,  is  to  be  sought,  on  an  ultimate  analjrsis,  in  its  supposed 
necessity  for  the  public  security.  The  guilt  of  the  plaintiff  is  excused, 
while  that  of  the  defendant  is  punished.  In  such  instances,  its  admin- 
istration in  cases  of  injuries  by  cars  and  engines  is  attended  with 
serious  diflSculty,  viz. :  determining  when  the  employees  of  the  rail- 
way company  may  be  justly  said  to  have  had  notice  that  the  injured 
party  was  in  a  position  of  danger.  Persons  frequently  remain  on  rail- 
way tracks  when  a  car  or  train  is  approaching,  until  it  would  be  im- 
possible to  stop  it  in  time  to  avoid  striking  them,  but  easily  get  off 
themselves  in  time.  Accustomed  to  take  care  of  their  safety  where 
cars  are  constantly  moving,  they  grow  dexterous  in  avoiding  them  and 
run  risks.  Engineers  and  motormen  have  a  right  to  presume  an  indi- 
vidual travelling  on  the  track  will  leave  it,  and  to  act  on  that  presump- 
tion until  his  situation  becomes  alarming.  Riley  v.  Railway  Company, 
68  Mo.  App.  661.  Just  when  this  happens  must  often  be  largely  con- 
jectm^l,  which  circimistance  weighs  heavily  with  many  against  the 
rule  in  question. 

The  doctrine  in  its  wider  scope  prevails  in  this  State.  The  plaintiff 
may  recover,  notwithstanding  his  negligence  directly  contributed  to 
his  hurt,  if  the  defendant  by  ordinary  care  could  have  prevented  the 
accident.  In  the  Morgan  case  (60  S.  W.  Rep.  195),  where  a  recovery 
was  sustained,  this  language  is  spoken:  "  There  can  be  no  doubt, 
under  the  evidence,  that  the  death  of  the  plaintiff's  husband  resulted 
from  the  negligence  of  the  defendant's  servants  in  charge  of  the  train, 
and  the  negligence  of  the  deceased  himself  contributing  thereto. ^^  SimUar 
expositions  have  b^n  made  in  many  other  cases.  Schmidt  v.  R'y  Co., 
50  S.  W.  921;  Klockenbrink  v.  Railway  Co.,  81  Mo.  App.  351; 
Cooney  v.  Railway  Co.,  80  Mo.  App.  226.  They  seem  in  conflict  with 
the  opinion  in  Hogan  v.  R'y  Co.,  150  Mo.  36.  We  must  follow  the 
latest  controlling  decision.    The  Morgan  case  was  decided  in  banc. 

In  view  of  the  strong  utterances  to  be  found  in  the  foregoing  au- 
thorities, it  is  useless  to  descant  on  the  wisdom  or  faUacy  of  the  rule,  to 
explore  its  foimdation,  extol  its  justice,  or  regret  its  hardship.  Our 
unmistakable  duty  is  to  enforce  it  as  we  would  any  other  part  of  the 
law.  The  present  case  differs  in  no  material  respect,  calling  for  its 
application,  from  the  Morgan  or  Cooney  cases,  sujyra^  which  become 
therefore  controlling  precedents.  The  Morgan  case  is  stronger  be- 
cause there  the  engineer  did  not  see  the  deceased,  who  was  flagrantly 
careless,  to  the  time  the  engine  struck  him;  here  the  motorman  did 
not  see  the  plaintiff.  The  court  below  did  not  err  in  refusing  an 
instruction  to  find  the  issue  for  the  defendant,  but  rightly  submitted 
them.    This  practically  disposes  of  the  case. 


Judgment  affirmed.^ 

*  Birmingham  R.  Co.  v.  Brantley,  141  Ala.  614:  Baltimore  Traction  Co.  v.  Wal- 
lace, 77  Md.  435;  Lassiter  v.  Raleigh  R.  Co.,  133  N.  C.  244;  Memphis  R.  Co.  v, 
Haynes,  112  Tenn.  712  Accord, 

"  Let  us  view  this  subject  in  a  more  concrete  form.    The  last  railroad  statistics 


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334  STEINMETZ  V.  KELLY  [CHAP.  H. 

STEINMETZ  v,    KELLY 

SUPREBIE  CotJBT,  INDIANA,  NOVEMBER  TeRM,  1880. 
Reported  in  72  Indiana  ReportSy  442. 

WoRDEN,  J.  Action  by  the  appellee  against  the  appellant  for  as- 
sault and  battery.  The  complaint  consisted  of  three  paragraphs,  a 
demurrer  to  each  of  which,  for  want  of  sufficient  facts,  was  overruled. 
The  first,  the  only  one  to  which  any  specific  objection  is  made  in  this 
Court,  alleged  that  the  defendant,  on,  &c.,  "  violently  and  unlawfuUy 
assaulted  the  plaintiff,  and  struck  him,  and  also  threw  him,  the  plain- 
tiff, from  the  house  of  the  defendant  on  to  the  street  pavement,  in 
front  of  the  defendant's  house,  with  great  violence,  fracturing,"  <tc. 

The  defendant  answered:  — 

First.  [That  there  was  a  justifiable  occasion  for  his  use  of  force, 
and  that  he  used  no  more  force  than  was  necessary.] 

Second.    General  denial. 

The  plaintiff  replied  by  general  denial  to  the  first  paragraph  of  the 
answer.  Trial  by  jury,  verdict  and  judgment  for  the  plaintiff  for 
$500. 

The  counsel  for  the  appeUant  in  their  brief  say:  "  We  shaU  not  stop 
now  to  discuss  the  merits  of  the  complaint  further  than  to  say  that  the 
first  paragraph  of  the  complaint  shows  an  eviction  from  the  defend- 
ant's premises,  and  we  have  thought  that  the  paragraph  should  aver 

I  have  been  able  to  find  were  issued  by  the  Interstate  Commerce  Commission  for 
the  year  1906. 

Prhe  learned  judge  then  copies  a  table  from  the  report  referred  to  and  proceeds.] 

It  will  be  observed  that  while  the  road  mileaffe  and  train  mileage  in  Canada  are 
each  ten  per  cent  of  the  entire  road  system  and  the  entire  train  mileage,  the  number 
of  trespassers  injured  or  killed  in  that  country  was  only  three  per  cent  of  the  total 
number:  while  m  this  State  the  road  mileage  is  twenty-six  per  cent  of  the  total 
road  mileage  and  the  train  mileage  twenty-five  per  cent  of  the  total  train  mileap, 
forty-eight  per  cent  of  the  total  number  of  trespassers  injured  or  killed  were  m- 
jured  or  killed  in  Missouri. 

Illinois  has  thirty  per  cent  of  the  road  mileage  and  thirty-two  per  cent  of  the 
train  mileage,  and  only  twenty  per  cent  of  the  total  number  of  tre4>as8ers  injurcKi 
or  killed  were  injured  or  killed  m  that  State. 

It  is  important  to  know  both  the  train  mileage  and  the  road  mileage,  for  the  rea- 
son the  greater  number  of  trains  that  are  run  over  a  given  road  mileage  the  greater 
number  of  fatalities  to  trespassers  will  result.  The  train  mileage,  therefore,  in  the 
various  States  offers  the  most  accurate  basis  for  comparison. 

A  computation  will  show  that  one  trespasser  was  killed  for  every  eighty-^ne 
miles  of  road  in  Canada;  for  every  seventeen  miles  in  Michigan;  for  every  forty- 
two  miles  in  Ohio;  for  every  thirty-one  miles  in  Indiana;  for  every  forty-six  miles 
in  Illinois;  for  every  seventeen  mues  in  Missouri;  and  for  every  forty-one  miles  in 
Iowa. 

It  will  be  observed  that  the  number  of  miles  for  each  trespasser  killed  in  Mis- 
souri and  Michigan  is  the  same.  This  results,  however,  from  the  fact  that  the  line 
from  Chicaeo,  St.  Louis,  and  other  points  converging  at  Montpeher,  Ohio,  and 
thence  all  the  traffic  eastward  goes  over  the  one  hundred  and  five  miles  of  line 
located  in  the  State  of  Michigan.  The  effect  of  this  is  also  shown  in  the  train  mile- 
age. Thus,  while  Michigan  has  only  four  per  cent  of  road  mileage,  it  has  one- 
tmrd  or  six  per  cent  of  the  train  mileage.    The  population  along  tne  Michigan 


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SECT.  VIII.]  STEINMETZ  V.  KELLY  335 

that  the  injury  occurred  without  the  fault  of  the  plaintiff."  The  para- 
graph does  not  charge  an  injury  to  the  plaintiff  arising  out  of  the 
ne^gence  of  the  defendant,  but  an  unlawfid  assault  upon,  and  bat- 
tery of,  the  plaintiff's  person.  In  such  cases  it  is  not  necessary  to 
allege  that  the  plaintiff  was  without  fault,  or,  in  other  words,  was  not 
guilty  of  contributory  negligence.  There  remains  nothing  more  to  be 
considered  except  such  questions  as  arise  on  a  motion  for  a  new  trial. 

[Omitting  part  of  opinion.] 

The  defendant  asked  that  the  following  interrogatory  be  answered 
by  the  jury,  if  they  should  return  a  general  verdict,  viz.:  "  Did  the 
fault  or  n^ligence  of  the  plaintiff  contribute  in  any  way  to  the  injury 
of  the  plaintiff,  received  on  the  evening  of  the  3d  of  March,  1876  ?  " 
The  Court  declined  to  direct  the  jury  to  answer  the  interrogatory,  and 
in  this  we  think  no  error  was  committed. 

The  right  of  the  plaintiff  to  recover  depended  not  upon  any  n^li- 
gence  of  the  defendant,  but  upon  the  assault  and  battery,  which,  if 
perpetrated  at  aU  by  the  defendant,  was  intentional  and  purposed.  It 
may  be  that  the  defendant  did  not  intend  to  inflict  so  severe  an  injury 
upon  the  plaintiff  as  seemed  to  result  from  the  excess  of  force  applied 
by  him;  but  it  does  not  therefore  follow  that  he  did  not  intend  to 
apply  that  force. 

The  doctrine  that  contributory  negligence  on  the  part  of  the  plain- 
tiff will  defeat  his  action  has  been  generally  applied  in  actions  based 
on  the  n^ligence  of  the  defendant,  in  short,  in  cases  involving  mutual 
negligence.  But  it  has  also  been  applied  in  some  cases  where  the  mat- 
ter complained  of  was  not  negligence  merely,  but  the  commission  of 
some  act  in  itself  unlawful,  without  reference  to  the  manner  of  com- 

mileage  is  very  dense;  about  five  miles  of  the  line  from  Delray  to  Detroit  run 
through  a  very  densely  populated  district  —  practically  a  city. 

It  should  aJso  be  noted  that  while  Illinois  has  greater  road  and  train  mileage 
than  Missouri,  only  sixteen  trespassers  were  injured  or  killed  while  walking  on 
tracks  in  that  otate,  where  thirty-nine  persons  were  killed  or  injured  while  walking 
on  the  track  in  Missouri.  If  we  also  consider  the  more  dense  population  of  Illinois, 
the  figures  become  more  startling.  And  if  we  should  extend  these  figures  in  the 
same  proportion  to  all  of  the  railroads  of  the  State  and  country,  we  would  then  see 
the  appalling  number  of  trespassers  killed  and  injured  annually  on  account  of  this 
inhuman  doctrine,  which  is  approximately  7750. 

In  so  far  as  I  have  been  able  to  ascertam,  the  courts  of  all  the  other  States  than 
this  hold  that  persons  who  walk  upon  railroad  tracks  do  so  at  their  peril,  and  I  am 
thoroughly  satisfied  and  convinced  that  this  fact  accounts  for  the  small  number  of 
fatalities  to  track-walkers  in  those  States  as  compared  with  Missouri;  and  by 
parity  of  reasoning  I  am  also  convinced  that  if  said  section  1105  was  strictly  en- 
forced, as  it  should  be,  the  contrast  between  those  States  and  this  would  not  be 
near  so  great  as  it  is  now;  and  that  if  we  had  a  statute  like  that  of  Canada,  making 
it  a  crime  for  persons  to  walk  upon  railroad  tracks,  then  the  percenta^  of  fatalities 
to  track-walkers  in  this  State  would  fall  still  lower  than  what  it  is  m  any  of  the 
States  mentioned.  Such  a  pohcy  and  such  a  statute  would  exclude  from  the  rail- 
roads all  pedestrians,  and  thereby  save  this  great  sacrifice  of  life  and  limb,  as  well 
as  the  pecuniary  loss  incident  thereto."  Woodson,  J.  (dissenting),  in  Murphy  t^. 
Wabash  Raibt)ad  Company,  228  Mo.  56,  88,  108. 

See  also  the  obe^^ations  of  Professor  Clark  in  University  of  Missouri  Bulletin, 
Law  Series,  No.  12,  34-^9. 


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336  STEINMETZ  V.  KELLY  [CHAP.  II. 

mitting  it,  as  the  wilful  and  unauthorized  obstruction  of  a  highway, 
whereby  a  person  is  injured.  Butterfield  v.  Forrester,  11  East,  60; 
Pygert  v.  Schenck,  23  Wend.  446. 

The  doctrine,  however,  can  have  no  application  to  the  case  of  an 
intentional  and  unlawful  assault  and  battery,  for  the  reason  that  the 
person  thus  assaulted  is  under  no  obligation  to  exercise  any  care  to 
avoid  the  same  by  retreating  or  otherwise,  and  for  the  further  reason 
that  his  want  of  care  can  in  no  just  sense  be  said  to  contribute  to  the 
injury  inflicted  upon  him  by  such  assault  and  battery. 

An  intentional  and  unlawful  assault  and  battery  inflicted  upon  a 
person  is  an  invasion  of  his  right  of  personal  security,  for  which  the 
law  gives  him  redress,  and  of  this  redress  he  cannot  be  deprived  on  the 
ground  that  he  was  n^ligent  and  took  no  care  to  avoid  such  invasion 
of  his  right. 

The  trespass  was  purposely  committed  by  the  defendant.  If  he 
could  excuse  it  on  the  groxmd  of  the  aUeged  misconduct  of  the  plain- 
tiff, and  if  he  employed  no  more  force  than  was  necessary  and  reason- 
able, that  was  a  complete  defence.  Otherwise  the  plaintiflF,  if  he 
made  out  the  trespass,  was  entitled  to  recover,  and  no  n^ligence  on 
his  part,  as  before  observed,  could  defeat  his  action.  The  case  of 
Ruter  V.  Foy,  46  Iowa,  132,  is  in  point.  There  the  plaintiflF  alleged 
that  the  defendant  had  assaulted  and  beat  her  with  a  pitchfork.  On 
the  trial  the  defendant  asked,  but  the  Court  refused,  the  foUowing  in- 
struction: "If  you  find  from  the  evidence  that  the  plaintiff  was 
injured,  or  contributed  to  her  injury,  by  her  own  act  or  negligence, 
defendant  would  not  be  liable  for  assault  and  battery  upon  her,  and 
plaintiff  cannot  recover."  On  appeal  the  Court  said  upon  this  point: 
*'  The  doctrine  of  contributory  negligence  has  no  application  in  an 
action  for  assault  and  battery." 

The  case  here  is  entirely  unlike  that  of  Brown  v.  KendaU,  6  Cush. 
292.  There  the  defendant's  dog  and  another  were  fighting.  The 
defendant  was  beating  the  dogs  with  a  stick  in  order  to  separate  them, 
in  doing  which  he  accidentaUy  hit  the  plaintiff  in  the  eye  with  the 
stick.  It  was  held  that  trespass  vi  et  armis  was  the  proper  form  of 
action,  because  the  injury  to  the  plaintiff  was  immediate;  but  that  as 
the  parting  of  the  dogs  was  a  proper  and  lawful  act,  and  as  the  hitting 
of  the  plaintiff  was  not  intentional,  but  a  mere  accident  or  casualty, 
the  plaintiff  could  not  recover  at  all  without  showing  a  want  of  ordi- 
nary care  on  the  part  of  the  defendant;  and  then  that  contributory 
negligence  on  the  part  of  the  plaintiff  would  defeat  the  action. 

Although,  according  to  the  common-law  system  of  pleading,  tres- 
pass vi  et  armis  was  the  proper  form  of  action  in  such  case,  the  essen- 
tial and  only  ground  on  which  the  action  could  rest  was  the  n^ligence 
of  the  defendant  in  doing  an  act  lawful  in  itself  whereby  the  plaintiff 
was  injured,  and  this  is  so  as  fully  as  if  the  plaintiff  had  framed  his 
declaration  in  case  for  the  negligence. 


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SECT.  Vni.]      AIKEN  V.  HOLYOKE  STREET  RAILWAY  CO.  337 

The  difference  between  that  case  and  the  present  is  substantial  and 
vital.  In  that  case  the  battery  was  unintentional,  and  the  defendant 
therein  was  guilty  of  no  wrong  save  his  negligence.  Here  the  de- 
fendant intentionaUy  perpetrated  the  battery,  and  the  plaintiff's  right 
to  recover  was  not  based  upon  the  negligence  of  the  defendant  at  all. 

[Oniitting  part  of  opinion.] 

We  find  no  error  in  the  record. 

The  judgment  below  is  aflSrmed  with  costs. 

Petition  for  a  rehearing  overruled.  Judgment  affirmed.^ 


AIKEN  V.  HOLYOKE  STREET  RAILWAY  CO. 

Supreme  Judicial  Court,  Massachusetts,  October  21,  1903. 

Reported  in  1S4  MasaachuseUs  Reports,  269. 

Tort  by  an  infant  against  a  street  railway  company  for  personal 
injimes.    Writ  dated  July  6,  1898. 

At  a  previous  stage  of  this  case,  reported  in  180  Mass.  8,  the  plain- 
tiff's exceptions  were  sustained  by  this  court  after  a  verdict  had  been 
ordered  in  the  Superior  Court  for  the  defendant.  At  the  new  trial  in 
the  Superior  Court  before  Lawton,  J.,  the  jury  returned  a  verdict  for 
the  plaintiff  in  the  sum  of  $5000.  The  defendant  aUeged  exceptions, 
raising  the  questions  stated  by  the  court. 

Knowlton,  C.  J.  The  most  important  question  in  this  case  grows 
out  of  the  instructions  to  the  jury  upon  the  third  coimt.  This  count 
charges  the  defendant,  by  its  servants,  with  having  started  up  the  car 
recklessly,  wantonly  and  with  gross  disregard  of  the  plaintiff's  safety, 
while  he  was  in  a  place  of  great  peril  upon  the  step  of  the  car,  and 
with  having  thrown  him  upon  the  ground  and  under  the  wheels  of  the 
car.  There  was  evidence  tending  to  show  that  the  plaintiff,  a  boy  six 
and  one  half  years  of  age,  ran  near  or  against  the  car,  and  was  upon 
the  lower  step  at  the  forward  end  as  the  car  was  going  around  a  curve 
from  one  street  into  another,  and  was  clinging  to  the  step  trying  to 
get  into  a  stable  position,  and  that  he  there  cried  out  to  the  motorman, 
"  Let  me  off  ";  that  the  motorman  saw  and  heard  him  and  knew  that 
he  was  in  a  place  of  danger,  and  that  he  then  turned  on  the  power  in 
a  wanton  and  reckless  way,  with  a  view  to  start  the  car  quickly,  and 
that  the  plaintiff  was  thus  thrown  off  and  injured.  This  testimony 
was  contradicted,  but  it  was  proper  for  the  consideration  of  the  jury. 
The  judge  instructed  the  jury  that  if  they  found  the  facts  to  be  in  ac- 
cordance with  this  contention  of  the  plaintiff,  they  would  be  warranted 
in  finding  that  the  conduct  of  the  motorman  was  wanton  and  reckless, 
and  in  returning  a  verdict  for  the  plaintiff.  He  also  instructed  them 
that  to  maintain  the  action  on  this  groimd,  it  must  be  proved  that  the 

*  Birmingham  Light  &  Power  Co.  v.  Jones,  146  Ala.  277;  Indianapolis  R.  Co.  v, 
Boettcher,  131  Ind.  82  Accord, 


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338  AIKEN  V.  HOLYOKE  STREET  RAILWAY  CO.  [CHAP.  II. 

motorman  wilfully  and  intentionally  turned  on  the  power,  with  a  view 
to  making  the  car  start  forward  rapidly  and  go  at  full  speed  quickly, 
but  that  it  was  not  necessary  to  prove  that  he  did  this  with  the  inten- 
tion of  throwing  the  boy  off  and  injuring  him.  He  also  told  them  that 
to  warrant  a  recovery  upon  this  state  of  facts,  the  plaintiflF  need  not 
show  that  he  was  in  the  exercise  of  due  care.  The  defendant  excepted 
to  that  part  of  the  instruction  which  relates  to  due  care  on  the  part  of 
the  plaintiff. 

llie  defendant  contends  that  while  it  was  not  necessary  for  the 
plaintiff  to  show  due  care  anterior  to  the  act  of  the  motorman,  he  was 
bound  to  show  due  care  which  was  concurrent  with  this  act  and  imme- 
diately subsequent  to  it.  This  brings  us  to  a  consideration  of  the 
rules  and  principles  applicable  to  this  kind  of  liability.  It  is  familiar 
law  that  in  the  absence  of  a  statutory  provision,  mere  negligence, 
whatever  its  degree,  if  it  does  not  include  culpability  different  in  kind 
from  that  of  ordinary  negUgence,  does  not  create  a  liability  in  favor 
of  one  injured  by  it,  if  his  own  negligence  contributes  to  his  injury. 
It  is  equally  true  that  one  who  wilfuUy  and  wantonly,  in  reckless  dis- 
regard of  the  rights  of  others,  by  a  positive  act  or  careless  omission 
exposes  another  to  death  or  grave  bodily  injury,  is  liable  for  the  con- 
sequences, even  if  the  other  was  guilty  of  negligence  or  other  fault  in 
connection  with  the  causes  which  led  to  the  injury.  The  difference 
in  rules  applicable  to  the  two  classes  of  cases  results  from  the  differ- 
ence in  the  nature  of  the  conduct  of  the  wrongdoers  in  the  two  kinds 
of  cases.  In  the  first  case  the  wrongdoer  is  guilty  of  nothing  worse 
than  carelessness.  In  the  last  he  is  guilty  of  a  wilful,  intentional 
wrong.  His  conduct  is  criminal  or  quasi  criminal.  If  it  results  in  the 
death  of  the  injured  person,  he  is  guilty  of  manslaughter.  .  Com- 
monwealth V.  Pierce,  138  Mass.  165;  Commonwealth  v,  Hartwell,  128 
Mass.  415.  The  law  is  regardful  of  human  life  and  personal  safety, 
and  if  one  is  grossly  and  wantonly  reckless  in  exposing  others  to 
danger,  it  holds  him  to  have  intended  the  natural  consequences  of  his 
act,  and  treats  him  as  guilty  of  a  wilful  and  intentional  wrong.  It  is 
no  defence  to  a  charge  of  manslaughter  for  the  defendant  to  show 
that,  while  grossly  reckless,  he  did  not  actually  intend  to  cause  the 
death  of  his  victim.  In  these  cases  of  personal  injury  there  is  a  con- 
structive intention  as  to  the  consequences,  which,  entering  into  the 
wilful,  intentional  act,  the  law  imputes  to  the  offender,  and  in  this 
way  a  charge  which  otherwise  would  be  mere  negligence,  becomes, 
by  reason  of  a  reckless  disregard  of  probable  consequences,  a  wilful 
wrong.  That  this  constructive  intention  to  do  an  injury  in  such  cases 
will  be  imputed  in  the  absence  of  an  actual  intent  to  harm  a  particular 
person,  is  recognized  as  an  elementary  principle  in  criminal  law.  It 
is  also  recognized  in  civil  actions  for  recklessly  and  wantonly  injuring 
others  by  carelessness.  Palmer  v,  Chicago,  St.  Louis  &  Pittsburgh 
Railroad,  112  Ind.  250;   Shumacher  v.  St.  Louis  &  San  Francisco 


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SECT.  Vin.]        AIKEN  V.  HOLYOKE  STREET  RAILWAY  CO.  339 

Railroad,  39  Fed.  Rep.  174;  Brannen  v.  Kokomo,  Greentown  & 
Jerome  Gravel  Road  Co.,  115  Ind.  115.  In  an  action  to  recover 
damages  for  an  assault  and  battery,  it  would  be  illogical  and  absurd 
to  allow  as  a  defence,  proof  that  the  plaintiff  did  not  use  proper  care 
to  avert  the  blow.  See  Sanford  v.  Eighth  Avenue  Railroad,  23  N.  Y. 
343,  346.  It  would  be  hardly  less  so  to  allow  a  similar  defence  where 
a  different  kind  of  injury  was  wantonly  and  recklessly  inflicted.  A 
reason  for  the  rule  is  the  fact  that  if  a  wilful,  intentional  wrong  is 
shown  to  be  the  direct  and  proximate  cause  of  an  injury,  it  is  hardly 
conceivable  that  any  lack  of  care  on  the  part  of  the  injured  person 
could  so.  concur  with  the  wrong  as  also  to  be  a  direct  and  proximate 
contributing  cause  to  the  injury.  It  might  be  a  condition  without 
which  the  injury  could  not  be  inflicted.  See  Newcomb  v.  Boston 
Protective  Department,  146  Mass.  596.  It  might  be  a  remote  cause, 
but  it  hardly  could  be  a  cause  acting  directly  and  proximately  with 
the  intentional  wrongful  act  of  the  offender.  Judson  v.  Great  North- 
em  Railway,  63  Minn.  248,  255.  The  offence  supposed  is  different  in 
kind  from  the  plaintiff's  lack  of  ordinary  care.  It  is  criminal  or  gium 
criminal.  Not  only  is  it  difficult  to  conceive  of  a  plaintiff's  n^ligence 
as  being  another  direct  and  proximate  cause  foreign  to  the  first,  yet 
acting  directly  with  it,  but  it  would  be  unjust  to  allow  one  to  relieve 
himself  from  the  direct  consequences  of  a  wilful  wrong  by  showing 
that  a  mere  lack  of  due  care  in  another  contributed  to  the  result.  The 
reasons  for  the  rule  as  to  the  plaintiff's  care  in  actions  for  ordinary 
negligence  are  wanting,  and  at  the  same  time  the  facts  make  the  rule 
impossible  of  application.  The  general  rule  that  the  plaintiff's  failure 
to  exercise  ordinary  care  for  his  safety,  is  not  a  good  defence  to  an 
action  for  wanton  and  wilful  injury  caused  by  a  reckless  omission  of 
duty,  has  been  recognized  in  many  decisions,  as  well  as  by  writers  of 
text-books.  Aiken  v.  Holyoke  Street  Railway,  180  Mass.  8,  14,  15; 
Wallace  v.  Merrinaack  River  Navigation  &  Express  Co.,  134  Mass. 
95;  Banks  v.  Highland  Street  Railway,  136  Mass.  485,  486;  Pahner 
V.  Chicago,  St.  Louis  &  Pittsburgh  Railroad,  112  Ind.  250;  Brannen 
V.  Kokomo,  Greentown  &  Jerome  Gravel  Road  Co.,  115  Ind.  115; 
Florida  Southern  Railway  v.  Hirst,  30  Fla.  1;  Shumacher  v.  St.  Louis 
&  San  Francisco  Railroad,  39  Fed.  Rep.  174:  7  Am.  &  Eng.  Encyc.  of 
Law  (2d  ed.)  443  and  note;  Beach,  Contr.  Neg.  (3d  ed.)  §§  46,  50,  64, 
65;  Wood,  Raih-oads  (2d  ed.),  1452;  Elliott,  Raihx)ads,  §1175; 
Thompson,  Neg.  §  206;  Cooley,  Torts  (2d  ed.),  810.  We  have  been 
referr^  to  no  case  in  which  it  is  held  that  it  makes  any  difference 
whether  the  plaintiff's  lack  of  ordinary  care  is  only  previous  to  the 
defendant's  wrong  and  continuing  to  the  time  of  it,  or  whether  there 
is  such  a  lack  after  the  wrong  begins  to  take  effect.  It  is  diflScult  to 
see  how  there  can  be  any  difference  in  principle  between  the  two  cases. 
In  this  Conunonwealth,  as  in  most  other  jurisdictions,  liability  does 
not  depend  upon  which  of  different  causes  contributing  to  an  injury 


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340  BANKS  V.  BRAMAK  [CHAP.  II. 

is  latest  in  the  time  of  its  origin,  but  upon  which  is  the  direct,  active, 
efficient  cause,  as  distinguished  from  a  remote  cause,  in  producing 
the  result. 

There  are  expressions  in  some  of  the  cases  which  imply  the  possi- 
bility of  contributory  negligence  on  the  part  of  the  plaintiff  in  a  case  of 
wanton  and  reckless  injury  by  a  defendant.  If  there  is  a  conceivable 
case  in  which  a  plaintiff's  want  of  due  care  may  directly  and  proxi- 
mately contribute  as  a  cause  of  an  injury  inflicted  directly  and  proxi- 
mately by  the  wilfid  wrong  of  another,  such  a  want  of  care  must  be 
something  different  from  the  mere  want  of  ordinary  care  to  avoid  an 
injury  coming  in  a  usual  way.  There  is  nothing  to  indicate  the  exist- 
ence of  peculiar  conditions  of  this  kind  in  the  present  case.  Conduct 
of  a  plaintiff  which  would  be  n^ligence  precluding  recovery  if  the 
injury  were  caused  by  ordinary  negligence  of  a  defendant,  will  not 
commonly  preclude  recovery  if  the  injury  is  inflicted  wilfuUy  through 
wanton  carelessness.  This  is  illustrated  by  the  former  decision  in  this 
case  and  by  many  others.  Aiken  v.  Holyoke  Street  Railway,  180  Mass. 
8;  McKeon  v.  New  York,  New  Haven,  &  Hartford  Railroad,  183 
Mass.  271.  As  to  this  kind  of  liability  of  the  defendant,  it  was  cer- 
tainly proper  to  instruct  the  jury  that,  in  reference  to  ordinary  kinds 
of  cal«  to  avoid  an  injury  from  a  car,  the  plaintiff  need  not  show  that 
he  was  in  the  exercise  of  due  care  if  a  lack  of  such  care  would  have 
no  tendency  to  cause  the  wilful  and  wanton  injury.  The  fair  inter- 
pretation of  the  instruction  given  is,  that  it  referred  to  ordinary  kinds 
of  care  to  avoid  an  injury  from  an  electric  car.  On  this  branch  of  the 
case  there  seems  to  have  been  no  reason  for  an  instruction  in  regard 
to  any  special  care,  and  probably  neither  counsel  nor  the  court  had 
any  care  in  mind  except  that,  in  reference  to  which,  in  any  view  of 
the  law,  the  instruction  was  properly  given.  We  are  of  opinion  that 
the  ruling  excepted  to  was  correct. 

[Omitting  opinion  on  other  points.]  Exceptions  overruled^ 


BANKS  V.  BRAMAN 
Supreme  Judicial  Court,  Massachusetts,  June  20,  1905. 

Reported  in  188  Massachusetts  Reports,  367. 

Tort,  for  injuries  from  being  struck  by  an  automobile  driven  by  the 
defendant  on  Mount  Auburn  Street  in  Cambridge  near  its  intersection 
with  Belmont  Street  shortly  after  eight  o'clock  on  the  evening  of  May 
17,  1903.    Writ  dated  November  18,  1903. 

1  Southern  R.  Co.  v.  Svendsen,  13  Ariz.  Ill;  Kramm.  v.  Stockton  R.  Co.,  10 
Cal.  App.  271;  Nehring  v.  Connecticut  Co.,  86  Conn.  109;  Central  R.  Co.  v, 
Moore,  5  Ga.  App.  562;  Heidenreich  v,  Bremner,  260  111.  439;  Kansas  R.  Co.  v, 
Whipple,  39  Kan.  531;  Schoolcraft  v.  Louisville  R.  Co^  92  Ky.  233;  La  Barge  v, 
Pere  Marquette  R.  Co.,  134  Mich.  139;  St.  Louis  R.  Co.  u.  Ault,  101  Miss.  341; 
Brendle  v.  Spencer,  125  N.  C.  474;  Goodwin  v.  Atlantic  R.  Co.,  82  S.  C.  321; 
Bolin  V.  Chicago  R.  Co.,  108  Wis.  333  Accord, 


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SECT.  VIII.]  BANKS  V.  BRAMAN  341 

At  the  trial  in  the  Superior  Court  before  Aiken,  C.  J.,  the  jury 
returned  a  verdict  for  the  plaintiff  in  the  sum  of  $3750;  and  the 
defendant  alleged  exceptions,  raising  the  questions  stated  by  the  court. 

Knowlton,  C.  J.  This  is  an  action  to  recover  for  injimes  received 
from  being  struck  by  an  automobile  aUeged  to  have  been  negligently 
nm  at  an  excessive  rate  of  speed,  and  negligently  managed  by  the  de- 
fendant. The  case  was  submitted  to  the  jury  on  two  alleged  grounds 
of  liability:  one,  that  the  defendant,  with  gross  negligence,  wantonly 
and  recklessly  injured  the  plaintiff,  and  the  other  that  the  plaintiff 
was  in  the  exercise  of  due  care,  and  that  the  injury  was  due  to  the  de- 
fendant's negligence.  On  the  first  claim  the  judge  instructed  the  jury 
as  follows:  ''  Gross  negligence  is  great  n^ligence.  To  make  out  the 
proposition  of  gross  negUgence,  you  must  be  satisfied  that  the  way  the 
machine  was  operated  by  Braman  was  reckless,  was  careless  to  the  de- 
gree of  recklessness;  that  it  was  run  with  a  reckless  disregard  to  the 
rights  of  Banks  in  this  street.  If  that  is  established,  namely,  that  there 
was  a  reckless  disregard  of  the  rights  of  Banks  in  the  way  this  ma- 
chine was  nm,  then  Banks  is  not  required  to  show  that  he  was  himself 
in  the  exercise  of  due  care.  If  the  way  —  I  repeat  this  for  the  purpose 
of  plainness  perhaps  unnecessarily  —  if  the  maimer  in  which  the 
machine  —  the  automobile,  I  mean  by  the  machine  —  was  run  on  the 
occasion  of  this  accident  was  such  that  it  was  grossly  n^Ugent,  that 
is,  careless  to  such  a  degree  that  you  can  say  it  was  reckless,  using 
your  common  sense  and  judgment,  and  applying  them  to  the  evidence, 
then  Banks  is  not  required  to  show  that  he  was  in  the  exercise  of  due 
care;  because  if  the  defendant's  carelessness  was  gross  in  the  sense 
that  has  been  defined  to  you,  there  is  an  obligation  to  pay  damages 
independent  of  the  matter  of  due  care."  The  defendant  excepted  to 
this  instruction.  The  jury  were  instructed  as  to  the  liability  for  a  fail- 
ure to  exercise  ordinary  care,  but  there  was  no  fuUer  statement  of  the 
law  on  this  branch  of  the  case. 

The  question  is  whether  the  difference  between  the  two  kinds  of  lia- 
bility was  suflSciently  pointed  out  to  give  the  jury  an  adequate  under- 
standing of  it.  The  diifference  in  culpability  of  the  defendant,  which 
distinguishes  these  different  kinds  of  liability,  is  something  more  than 
a  mere  difference  in  the  degree  of  inadvertence.  In  one  case  there 
need  be  nothing  more  than  a  lack  of  ordinary  care,  which  causes  an 
injury  to  another.  In  the  other  case  there  is  wilful,  intentional  con- 
duct whose  tendency  to  injure  is  known,  or  ought  to  be  known,  accom- 
panied by  a  wanton  and  reckless  disregard  of  the  probable  harmful 
consequences  from  which  others  are  likely  to  suffer,  so  that  the  whole 
conduct  together,  is  of  the  nature  of  a  wilful,  intentional  wrong. 

[Here  the  learned  judge  quoted  at  length  from  Aiken  v.  Holyoke 
Street  Railway,  184  Mass.  269,  271.] 

In  dealing  with  the  same  subject  in  Bjomquist  v,  Boston  &  Albany 
Raihx)ad,  185  Mass.  130,  134,  the  court  said:  "  The  conduct  which 


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342  BANKS  V.  BRAMAN  [CHAP.  H. 

creates  a  liability  to  a  trespasser  in  cases  of  this  kind  has  been  re- 
ferred to  in  the  books  in  a  variety  of  wajrs.  Sometimes  it  has  been 
called  gross  negligence  and  sometimes  wilful  negligence.  Plainly  it  is 
something  more  than  is  necessary  to  constitute  the  gross  n^Ugence 
referred  to  in  our  statutes  and  in  decisions  of  this  court.  The  term 
'  wilful  n^ligence  '  is  not  a  strictly  accurate  description  of  the  wrong. 
But  wanton  and  reckless  negligence  in  this  class  of  cases  includes 
something  more  than  ordinary  inadvertence.  In  its  essence  it  is  like 
a  wilful,  intentional  wrong.  It  is  illustrated  by  an  act  which  other- 
wise might  be  unobjectionable,  but  which  is  liable  or  likely  to  do  great 
harm,  and  which  is  done  in  a  wanton  and  reckless  disregard  of  the 
probable  injurious  consequences."  The  groimd  on  which  it  is  held 
that,  when  an  act  of  the  defendant  shows  an  injury  inflicted  in  this 
way,  the  plaintiff  need  introduce  no  affirmative  evidence  of  due  care, 
is  that  such  a  wrong  is  a  cause  so  independent  of  previous  conduct  of 
the  plaintiff,  which,  in  a  general  sense,  may  fall  short  of  due  care,  that 
this  previous  conduct  cannot  be  considered  a  directly  contributing 
cause  of  the  injury,  and,  in  reference  to  such  an  injury,  the  plaintiff, 
without  introducing  evidence,  is  assumed  to  be  in  a  position  to  claim 
his  rights  and  to  have  compensation.  So  far  as  the  cause  of  his  injury 
is  concerned,  he  is  in  the  position  of  one  who  exercises  due  care. 
Aiken  v.  Holyoke  Street  Railway,  vbi  supra. 

It  is  not  easy  to  explain  to  a  jury  the  nature  of  this  liability.  What 
was  said  by  the  judge  in  this  case  comes  very  near  to  a  correct  state- 
ment of  the  law.  But  it  lacks  something  in  fulness,  and  we  think  the 
jury  may  have  understood  that  negligence  somewhat  greater  in  degree 
than  a  mere  lack  of  ordinary  care  or  a  simple  inadvertence,  but  not 
different  from  it  in  kind,  would  constitute  the  gross  n^ligence  re- 
ferred to.  We  are  of  opinion  that  when  there  is  an  attempt  to  estab- 
lish this  peculiar  kind  of  liability,  which  exists  independently  of  a 
general  exercise  of  due  care  by  the  plaintiff,  the  jury  should  be  in- 
structed with  such  fulness  as  to  enable  them  to  know  that  they  are 
dealing  with  a  wrong  materiaUy  different  in  kind  from  ordinary  neg- 
ligence. Because  we  think  the  instruction  may  have  left  the  jury  with 
a  misunderstanding  of  the  law,  the  exceptions  are  sustained. 

We  are  of  opinion  that  there  was  evidence  which  justified  the  sub- 
mission of  the  case  to  the  jury  on  this  ground,  as  well  as  on  the 
ground  that  the  plaintiff  was  in  the  exercise  of  due  care. 

Exceptions  sustained.^ 

^  Carrington  v.  Louisville  R.  Co.,  88  Ala.  472;  Wood  v.  Los  Angeles  R.  Co., 
172  Cal.  15:  Rowen  v.  New  York  R.  Co.,  59  Conn.  364:  Florida  R.  Co.  v.  Hirst, 
30  Fla.  1;  Louisville  R.  Co.  v.  McCoy,  81  Ky.  403;  Davis  v.  Sa«inaw  Bay  R.  Co., 
191  Mich.  131  Accord.    Compare  Magar  v.  Hammond,  171  N.  Y.  377. 

"  Mere  negligence  which  gives  a  cause  of  action  is  the  doing  of  an  act,  or  the 
omission  to  act,  which  results  in  damage,  but  without  intent  to  do  wrong  or  cause 
damage.  To  constitute  a  wilful  injury,  tnere  must  be  desi^,  purpose,  intent  to  do 
wrong  and  inflict  the  injury.  Then  there  is  that  reckless  mdifiference  or  disregard 
of  the  natural  or  probable  consequence  of  doing  an  act,  or  omission  of  an  act,  desig- 


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SECT.  VIII.]  GEORGIA  PACIFIC  RY.  CO.  V.  LEE  343 

GEORGIA  PACIFIC  RAILWAY  CO.  v.  LEE 

Supreme  Court,  Alabama,  November  Term,  1890. 

Reported  in  02  Alabama  ReporUy  262. 

McClellan,  J.^  .  .  .  Many  of  the  rulings  of  the  trial  court  in  defining  the 
gross  negligence,  recklessness  or  wantonness  on  the  part  of  the  defendant, 
which  will  authorize  recovery,  notwithstanding  plaintiff's  contributory  negli- 
gence, are  presented  for  review.  The  fault  in  the  court's  definitions  in  this  re- 
gard lies,  in  our  opinion,  in  the  assumption  that  recklessness  or  wantonness 
implying  wilful  and  intentional  wrong-doing  may  be  predicated  of  a  mere 
omission  of  duty,  under  circumstances  which  do  not,  of  themselves,  impute  to 
the  person  so  fsdling  to  discharge  the  duty  a  sense  of  the  probable  consequences 
of  the  omission.  The  charges  given  by  the  court  in  this  connection,  and  its 
rulings  on  charges  requested  by  the  defendant,  proceed  on  the  theory  that  a 
mere  failure  on  the  pa^  of  defendant's  employees  to  see  plaintiff's  wagon  and 

nated  whether  accurately  or  not.  in  our  decisions,  as '  wanton  negligence,'  to  which 
IB  imputed  the  same  degree  of  culpability  and  held  to  be  equivalent  to  wilful  injury. 
A  purpose  or  intent  to  injure  is  not  an  ingredient  of  wanton  negligence.  Where 
either  of  those  exist,  if  damage  ensues,  the  mjury  is  wilful.  In  wanton  negli^nce, 
the  party  doing  the  act,  or  failing  to  act,  is  conscious  of  his  conduct^  and  without 
havmg  the  intent  to  injure,  is  conscious,  from  his  knowledge  of  existing;  drcum- 
stanoes  and  conditions,  that  his  conduct  will  likely  or  probably  result  m  injury. 
These  are  the  distinctions  between  simple  negligence,  wuful  injury,  and  that  wan- 
ton negligence  which  is  the  equivalent  of  wifiurinjunr,  drawn  ana  applied  in  our 
decisions.  A  mere  error  of  judgment  as  to  the  result  of  doing  an  act  or  tne  omission 
of  an  act,  having  no  evil  purpose  or  intent,  or  consciousness  of  probable  injurv, 
may  constitute  sunple  negligence,  but  cannot  rise  to  the  degree  of  wanton  negli- 
gence or  wilful  wrong.  ...  Coleman,  J.,  in  Birmingham  K.  Co.  v.  Bowers,  110 
Ala.  328,  331. 

"  The  mere  intentional  omission  to  perform  a  duty  or  the  intentional  doing  of  an 
act  contrary  to  duty,  although  such  conduct  be  culpable  and  result  in  injury,  with- 
out further  averment,  falls  very  far  short  of  showing  that  the  injury  was  intention- 
ally or  wantonly  inmcted.  'Unless  there  was  a  purpose  to  inflict  the  injury,  it 
cannot  be  said  to  have  been  intentionally  done:  and  unless  an  act  ia  done,  or 
omitted  to  be  done,  imder  circumstances  and  conoitions  known  to  the  person,  that 
his  conduct  is  likely  to,  or  probably  will  result  in  injury,  and  throu^  reckless  indif- 
ference to  consequences,  he  consciously  and  intentionally  does  a  wrongful  act,  or 
omits  an  act,  the  injury  cannot  be  said  to  be  wantonly  inSfticted.  These  principles 
have  been  frequently  declared  by  this  court.  .  .  ."  Coleman,  J.,  in  Memphis  R. 
Co.  V.  Martin,  117  Ala.  367,  382. 

Central  R.  Co.  v.  Newman,  94  Ga.  660:  Lafayette  R.  Co.  v,  Adams,  26  Ind.  76; 
Chicago  R.  Co.  v.  Bills,  118  Ind.  221;  Alger  v.  Duluth-Superior  Traction  Co.,  93 
Minn.  314;  Jensen  v.  Denver  R.  Co.,  44  Utah,  100;  Boggess  v.  Chesapeake  R.  Co., 
37  W.  Va.  297;  Astin  v,  Chicago  R.  Co.,  143  Wis.  477  Contra.  But  see  Ja^xi,  J., 
dissenting,  in  Anderson  v.  Minneapolis  R.  Co.,  103  Minn.  22i^  230. 

"  For  a  motorman  to  be  inattentive  to  the  way  ahead  of  him  is  so  palpably  negli- 
gent that  it  partakes  of  the  nature  of  a  reckless  and  wanton  act.  Therefore  a  de- 
fendant in  an  action  of  this  character  will  not  be  heard  to  say  chat  its  motorman 
did  not  see  the  situation  of  the  injured  person  where  it  was  open  to  his  view  nor  did 
not  realize  the  peril  where  the  indications  would  have  disclosed  it  to  any  reasonable 
mind.  Charged  with  the  knowledge  of  the  peril  of  another  that  could  have  been 
obtained  by  the  use  of  ordinary  care,  a  failure  on  the  part  of  a  motorman  to  make 
every  reasonable  effort  to  avoid  injuring  the  endangered  person  would  be  in  the 
hi^est  degree  wrongful,  since  it  would  be  negligence  committed  with  the  knowl- 


1  Only  a  portion  of  the  opinion  is  printed. 


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344  GEORGIA  PACIFIC  BY.  CO.  V.  LEE  [CHAP.  II. 

team  as  soon  as  they  might  have  seen  them  by  the  exercise  of  due  care  was 
such  recklessness  or  wantonness  as  implies  a  willingness  or  a  purpose  on  their 
part  to  inflict  the  injury  complained  of.  We  do  not  think  this  proposition  can 
be  maintained  either  logically  or  upon  the  authorities.  The  failure  to  keep  a 
lookout,  which  it  was  the  duty  of  defendant's  employees  to  maintain,  and 
which  would  have  sooner  disclosed  the  peril  of  the  driver  and  plaintiff's 
wagon  and  team  —  even  conceding  that  such  would  have  been  the  case  — 
was,  at  the  most,  mere  negligence,  inattention,  inadvertence;  and  it  cannot 
be  conceived,  in  the  nature  of  things,  how  a  purpose  to  accomplish  a  given 
result  can  be  imputed  to  mental  conditions,  the  very  essence  of  which  is  the 
absence  of  all  thought  on  the  particular  subject.  To  say  that  one  intends  a 
result  which  springs  solely  from  his  mind  not  addressing  itself  to  the  factors 
which  conduce  to  it,  to  imply  a  purpose  to  do  a  thing  from  inadvertence  in 
respect  of  it,  are  contradictions  in  terms.  Wilful  and  intentional  wrong,  a 
willingness  to  inflict  injury,  cannot  be  imputed  to  one  who  is  without  con- 
sciousness, from  whatever  cause,  that  his  conduct  will  inevitably  or  probably 
lead  to  wrong  and  injury.  In  the  case  at  bar,  this  consciousness  could  not 
exist  on  the  part  of  defendant's  employees  until  they  knew  plaintiff's  wagon 
and  team  were  in  a  position  of  danger;  and  no  degree  of  ignorance  on  their 
part  of  this  state  of  things,  however  reprehensible  in  itself,  could  supply  this 
element  of  conscious  wrong,  or  reckless  indifference  to  consequences,  which, 
from  their  point  of  view,  would  probably  or  necessarily  ensue. 

The  true  doctrine,  and  that  supported  by  many  decisions  of  this  court,  as 
well  as  the  great  weight  of  authority  in  other  jurisdictions,  is  that  notwith- 
standing plaintiff's  contributory  ne^gence  he  may  yet  recover,  if ,  in  a  case 
like  this,  the  defendant's  employees  discover  the  periUms  situation  in  time  to 
prevent  disaster  by  the  exercise  of  due  care  and  diligence^  andfail,  after  the  peril 
of  plaintiff* s  property  becomes  known  to  them  as  a  fact  —  and  not  merely  after 
they  should  have  known  it  —  to  resort  to  all  reasonable  effort  to  avoid  the  injury. 
Such  failure,  with  such  knowledge  of  the  situation  and  the  probable  conse- 
quences of  the  omission  to  act  upon  the  dictates  of  prudence  and  diligence  to 
the  end  of  neutralizing  plaintiff's  fault  and  averting  disaster,  notwithstand- 

edge  that  another  certainly  and  immediately  would  be  injured  thereby.  The  prin- 
ciples of  right  and  justice  do  not  tolerate  the  idea  that  the  negligence  of  the  person 
imperilled  involved  in  his  act  of  placing  himself  in  position  to  be  injured  without 
giving  proper  heed  to  his  own  safety  can  cooperate  with  the  negligence  of  one  who 
comprehending  his  danger  or  being  in  a  position  to  comprehend  it  by  the  use  of 
ordinary  care  and  having  at  hand  the  means  and  opportunity  of  avoiding  it,  fails 
to  reasonably  employ  them  and  by  such  failure  inflicts  an  iniury.  Such  negligence 
engrosses  the  enUre  field  of  culpability  and  eliminates  contributory  negligence  as  a 
factor  in  the  production  of  the  injury.  It  logically  follows  from  the  principles 
stated  that  the  issue  of  negligence  in  the  periormance  of  the  humanitarian  duty 
must  be  governed  by  the  rmes  applicable  to  ordinary  negligence.  The  determina- 
tive question  in  all  such  cases  is.  did  the  operators' of  the  car  use  ordinary  care  to 
ascertain  the  peril  of  the  plaintiff  and  to  avoid  the  injury  after  they  discovered  it  or 
should  have  discovered  it  ?  In  some  of  the  decisions  of  the  Supreme  Court  the 
idea  appears  to  be  expressed  that  in  order  to  find  a  defendant  guilty  of  a  breach  of 
the  humanitarian  rule  the  elements  of  wantonness  and  wilfulness  must  appear  in 
its  conduct,  but  as  we  have  attempted  to  show  the  mere  failure  to  observe  ordinary 
care  in  situations  of  this  character  is  of  itself  a  wanton  act  since  it  is  abhorrent  not 
only  to  fundamental  principles  of  law  but  to  the  dictates  of  common  humanity. 
The  views  expre^ed  are  supported  by  the  weight  of  authority  in  this  state,  includ- 
ing the  most  recent  decisions  of  the  Supreme  and  AppeUate  courts.  .  .  .  John- 
son, J.,  in  Cole  v.  Metropolitan  R.  Co.,  121  Mo.  App.  605,  611. 


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SECT.  Vni.]  KELLOGG  V.  CHICAGO,  Ac.  RY.  CO.  345 

ing  his  lack  of  care,  is,  strictly  speaking,  not  negligence  at  all,  though  the  term 
"  gross  negligence  "  has  been  so  frequently  used  as  defining  it  that  it  is  per- 
haps too  late,  if  otherwise  desirable,  to  eradicate  what  is  said  to  be  an  un- 
scientific definition,  if  not  indeed  a  misnomer;  but  it  is  more  than  any  degree 
of  negligence,  inattention  or  inadvertence  —  which  can  never  mean  other  than 
the  omission  of  action  without  intent,  existing  or  imputed,  to  commit  wrong 
—  it  is  that  recklessness,  or  wantonness,  or  worse,  which  implies  a  willingness 
to  inflict  the  impending  injury,  or  a  wilfulness  in  pursuing  a  course  of  conduct 
which  will  naturally  or  probably  result  in  disaster,  or  an  intent  to  perpetrate 
wrong.  The  theory  of  contributory  negligence,  as  a  defence,  is  that,  con- 
jointly with  negligence  on  the  part  of  the  defendant,  it  conduces  to  the  dam- 
nifying result,  and  defeats  any  action,  the  gravamen  of  which  is  such  negligence. 
If  defendant's  conduct  is  not  merely  negligent,  but  worse,  there  is  nothing  for 
plaintiff's  want  of  care  to  contribute  to  —  there  is  no  lack  of  mere  prudence 
and  diligence  of  like  kind  on  the  part  of  defendant  to  conjunctively  constitute 
the  efficient  cause.  Mere  negligence  on  the  one  hand  cannot  be  said  to  aid 
wilfulness  on  the  other.  And  hence  such  neghgence  of  a  plaintiff  is  no  defence 
against  the  consequences  of  the  wilfulness  of  the  defendant.  But  nothing 
short  of  the  elements  of  actual  knowledge  of  the  situation  on  the  part  of 
defendant's  employees,  and  their  omission  of  preventive  effort  after  that 
knowledge  is  brought  home  to  them,  when  there  is  reasonable  prospect  that 
such  effort  will  avail,  will  suffice  to  avoid  the  defence  of  contributory  negli- 
gence on  the  part  of,  or  imputable  to,  the  plaintiff. 


KELLOGG  V.  CHICAGO  AND  NORTHWESTERN  RAILWAY 

COMPANY 

SUPREB4E   COUKT,  WISCONSIN,  JuNE  TeRM,  1870. 
Reported  in  26  Wisconnn  ReportSj  223. 

Action  to  recover  damages  for  destruction  of  hay,  sheds,  stables, 
&c.,  by  a  fire  alleged  to  have  originated  in  the  negligence  of  the  rail- 
way company.  Fire  was  conomunicated  by  sparks  from  railroad 
engine  to  dry  grass,  weeds,  Ac,  which  had  been  allowed  to  accumulate 
on  defendant's  land,  on  both  sides  of  the  track;  and  thence  the  fire 
passed  upon  plaintiff's  land  where  dry  grass  and  weeds  had  also  been 
permitted  to  accumulate.  A  strong  wind  was  blowing  from  the  track 
toward  plaintiff's  buildings,  about  one  hundred  and  forty  rods  dis- 
tant. TTie  dry  and  combustible  matter  on  the  railroad  land  and  on 
plaintiff's  land,  together  with  the  wind,  served  to  carry  the  fire  to 
plaintiff's  building,  Ac,  which  were  destroyed. 
Trial;  verdict  and  judgment  for  plaintiff.  Defendant  appealed.* 
Dixon,  C.  J.  All  the  authorities  agree  that  the  presence  of  dry 
grass  and  other  inflammable  material  upon  the  way  of  a  railroad,  suf- 
fered to  remain  there  by  the  company  without  cause,  is  a  fact  from 

*  Statement  of  facts  abridged.  Arguments  omitted.  Onljr  such  portion  of  the 
two  opinions  of  Dixon,  C.  J.,  are  given  as  relate  to  one  question.  The  dissenting 
opinion  of  Paine,  J.,  is  omitted. 


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346  KELLOGG  V.  CHICAGO,  Ac.  RY.  CO.  [CHAP.  II. 

which  the  jury  may  find  negligence  against  the  company.  The  cases  in 
Illinois,  cited  and  relied  upon  by  counsel  for  the  defendant,  hold  this. 
They  hold  that  it  is  proper  evidence  for  the  jury,  who  may  find  negli- 
gence from  it,  although  it  is  not  negligence  per  se.  Railroad  Co.  v. 
Shanefelt,  47  111.  497;  Illinois  Central  Railroad  Co.  v.  Nimn,  51  id. 
78;  Raihoad  Co.  v.  Mills,  42  id.  407;  Bass  v.  Raihx)ad  Co.,  28  id.  9. 
The  Court  below  ruled  in  the  same  way,  and  left  it  for  the  jury  to  say 
whether  the  suffering  of  the  combustible  material  to  accumulate  upon 
the  right  of  way  and  sides  of  the  track,  or  the  failure  to  remove  the 
same,  if  the  jmy  so  found,  was  or  was  not,  under  the  circumstances, 
negligence  on  the  part  of  the  company.  No  fault  can  be  found  with  the 
instructions  in  this  respect;  and  the  next  question  is  as  to  the  charge 
of  the  Court,  and  its  refusal  to  charge,  respecting  the  alleged  negli- 
gence of  the  plaintiff  contributing,  as  it  is  said,  to  the  loss  or  damage 
complained  of.  This  is  the  leading  and  most  important  question 
in  the  case.  It  is  a  question  upon  which  there  is  some  conflict  of 
authority. 

The  facts  were,  that  the  plaintiff  had  permitted  the  weeds,  grass, 
and  stubble,  to  remain  upon  his  own  land  immediately  adjoining  the 
railway  of  the  defendant.  They  were  dry  and  combustible,  the  same 
as  the  weeds  and  grass  upon  the  right  of  way,  though  less  in  quantity, 
because  within  the  right  of  way  no  mowing  had  ever  been  done,  and 
the  growth  was  more  luxuriant  and  heavy.  The  plaintiff  had  not  cut 
and  removed  the  grass  and  weeds  from  his  own  land,  nor  ploughed  in 
or  removed  the  stubble,  so  as  to  prevent  the  spread  of  fire  in  case  the 
same  should  be  conmiunicated  to  the  dry  grass  and  weeds  upon  the 
railroad,  from  the  engines  operated  by  the  defendant.  The  grass, 
weeds,  and  stubble,  upon  the  plaintiff's  land,  together  with  the  wind, 
which  was  blowing  pretty  strongly  in  that  direction,  served  to  carry 
the  fire  to  the  stacks,  buildings,  and  other  property  of  the  plaintiff, 
which  were  destroyed  by  it,  and  which  were  situated  some  distance 
from  the  railroad.  The  fire  originated  within  the  line  of  the  railroad, 
and  near  the  track,  upon  the  land  of  the  defendant;  It  was  com- 
municated to  the  dry  grass  and  other  combustible  material  there,  by 
coals  cf  fire  dropped  from  an  engine  of  the  defendant  passing  over 
the  road.  The  evidence  tends  very  clearly  to  establish  these  facts, 
and  under  the  instructions  the  jury  must  have  so  found.  The  plain- 
tiff is  a  farmer,  and,  in  the  particulars  here  in  controversy,  conducted 
his  farming  operations  the  same  as  other  farmers  throughout  the 
country.  It  is  not  the  custom  anywhere  for  farmers  to  remove  the 
grass  or  weeds  from  their  waste  lands,  or  to  plough  in  or  remove  their 
stubble,  in  order  to  prevent  the  spread  of  the  fire  originating  from  such 
causes. 

Upon  this  question,  as  upon  the  others,  the  Court  charged  the  jury 
that  it  was  for  them  to  say  whether  the  plaintiff  was  guilty  of  negli- 
gence, and,  if  they  found  he  was,  that  then  he  could  not  recover.    On 


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SECT.  Vni.]         KELLOGG  V.  CHICAGO,  Ac.  RT.  CO.  347 

the  other  hand,  the  defendant  asked  an  instruction  to  the  effect  that  it 
was  negligence  per  se  for  the  plaintiff  to  leave  the  grass,  weeds,  and 
stubble  upon  his  own  land,  exposed  to  the  fire  which  might  be  commu- 
nicated to  them  from  the  burning  grass  and  weeds  on  the  defendant's 
right  of  way,  and  that  for  this  reason  there  could  be  no  recovery  on  the 
part  of  the  plaintiff.  The  Court  refused  to  give  the  instruction,  and,  I 
think,  rightly.  The  charge  upon  this  point,  as  well  as  upon  the  other, 
was  quite  as  favorable  to  the  defendant  as  the  law  will  permit,  and 
even  more  so  than  some  of  the  authorities  will  justify.  The  authori- 
ties upon  this  point  are,  as  I  have  said,  somewhat  in  conflict.  The  two 
cases  first  above  cited  from  Illinois  hold  that  it  is  negligence  on  the 
part  of  the  adjoining  landowner  not  to  remove  the  dry  grass  and  com- 
bustible material  from  his  own  land  under  such  circumstances,  and 
that  he  cannot  recover  damages  where  the  loss  is  by  fire  thus  conmiu- 
nicated.  Those  decisions  were  by  a  divided  Court,  by  two  only  of  the 
three  judges  composing  it.  They  rest  upon  no  satisfactory  grounds, 
whilst  the  reasons  found  in  the  opinions  of  the  dissenting  judge  are 
very  strong  to  the  contrary.  Opposed  to  these  are  the  unanimous 
decisions  of  the  courts  of  New  York,  and  of  the  English  Court  of 
Exchequer,  upon  the  identical  point.  Cook  v,  Champlain  Trans- 
portation Co.,  1  Denio,  91;  Vaughan  v.  Taff  Vale  Railway  Co.,  3 
Hurl,  and  Nor.  743;  Same  v.  Same,  5  id.  679.  These  decisions, 
though  made  many  years  before  the  Illinois  cases  arose,  are  not  re- 
ferred to  in  them.  The  last  was  the  same  case  on  appeal  in  the 
Exchequer  Chamber,  where,  although  the  judgment  was  reversed^ 
it  was  upon  another  point.  This  one  was  not  questioned,  but  was 
affirmed,  as  will  be  seen  from  the  opinions  of  the  judges,  particularly 
of  Cockbum,  C.  J.,  and  Willes,  J.  The  reasoning  of  those  cases  is, 
in  my  judgment,  unanswerable.  I  do  not  see  that  I  can  add  anything 
to  it.  They  show  that  the  doctrine  of  contributory  negligence  is 
wholly  inapplicable,  —  that  no  man  is  to  be  charged  with  negligence 
because  he  uses  his  own  property  or  conducts  his  own  affairs  as  other 
people  do  theirs,  or  because  he  does  not  change  or  abandon  such  use, 
and  modify  the  management  of  his  affairs,  so  as  to  accommodate 
himself  to  the  negligent  habits  or  gross  misconduct  of  others,  and  in 
order  that  such  others  may  escape  the  consequences  of  their  own 
wrong,  and  continue  in  the  practice  of  such  negligence  or  misconduct. 
In  other  words,  they  show  that  no  man  is  to  be  deprived  of  the  free, 
ordinary,  and  proper  use  of  his  own  property  by  reason  of  the  negli- 
gent use  which  his  neighbor  may  make  of  his.  He  is  not  his  neighbor's 
guardian  or  keeper,  and  not  to  answer  for  his  neglect.  The  case  put 
by  the  Court  of  New  York,  of  the  owner  of  a  lot  who  builds  upon  it 
in  close  proximity  to  the  shop  of  a  smith,  is  an  apt  illustration.  Or 
let  us  suppose  that  A.  and  B.  are  proprietors  of  adjoining  lands.  A. 
has  a  dweUing-house,  bams,  and  other  buildings  upon  his,  and  culti- 
vates some  portion  of  it.   B.  has  a  planing  mill,  or  other  similar  manu- 


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348  KELLOGG  V.  CHICAGO,  Ac.  RY.  CO.  [CHAP.  U. 

facturing  establishment  upon  his,  near  the  line  of  A.,  operated  by 
steam.  B.  is  a  careless  man,  habitually  so,  and  suffers  shavings  and 
other  inflammable  material  to  accumulate  about  his  mills  and  up  to 
the  line  of  A.,  and  so  near  to  the  fire  in  the  mill  that  the  same  is  liable 
at  any  time  to  be  ignited.  A.  knows  this,  and  remonstrates  with  B., 
but  B.  persists.  Upon  A.'s  land,  inamediately  adjoining  the  premises 
of  B.,  it  is  unavoidable,  in  the  ordinary  course  of  husbandry,  or  of 
A.*8  use  of  the  land,  that  there  should  be  at  certain  seasons  of  the 
year,  imless  A.  removes  them,  dry  grass  and  stubble,  which,  when  set 
fire  to,  will  endanger  his  dwelling-house  and  other  property  of  a  com- 
bustible nature,  especially  with  the  wind  blowing  in  a  particular 
direction  at  the  time.  It  may  be  a  very  considerable  annual  expense 
and  trouble  to  A.  to  remove  them.  It  may  require  considerable  time 
and  labor,  a  useless  expenditure  to  him,  diverting  his  attention  from 
other  affairs  and  duties.  The  constant  watching  to  guard  against  the 
carelessness  and  negUgenoe  of  B.  is  a  great  tax  upon  his  time  and 
patience.  The  question  is:  Does  the  law  require  this  of  him,  lest,  in 
some  unguarded  moment,  the  fire  should  break  out,  his  property  be 
destroyed,  and  he  be  remediless  ?  If  the  law  does  so  require,  if  it  im- 
poses on  him  the  duty  of  guarding  against  B.'s  negligence,  and  of 
seeing  that  no  injury  shall  come  from  it,  or,  if  it  does  come,  that  it 
shall  be  his  fault  and  not  B.'s,  it  is  important  to  know  upon  what  prin- 
ciple it  is  that  the  burden  is  thus  shifted  from  B.  to  himself.  I  know 
of  no  such  principle,  and  doubt  whether  any  Court  could  be  found 
deliberately  to  announce  or  aflSrm  it.  And  yet  such  is  the  result  of 
holding  the  doctrine  of  contributory  negligence  applicable  to  such  a 
case.  A.  is  compelled,  all  his  lifetime,  at  much  expense  and  trouble, 
to  watch  and  guard  against  the  negligence  of  B.,  and  to  prevent  any 
injuries  arising  from  it,  and  for  what  ?  Simply  that  B.  may  continue 
to  indulge  in  such  negligence  at  his  pleasure.  And  he  does  so  with 
impunity.  The  law  affords  no  redress  against  him.  If  the  property  is 
destroyed,  it  is  because  of  the  combustible  material  on  A.'s  land,  which 
carries  the  fire,  and  which  is  A.'s  fault,  and  A.  is  the  loser.  No  loss  can 
ever  possibly  overtake  him.  A.  is  responsible  for  the  negligence,  but 
not  he  himself.  He  kindles  the  fire,  and  A.  stands  guard  over  it.  He 
sets  the  dangerous  element  in  motion,  and  uses  and  operates  it  for  his 
own  benefit  and  advantage,  negligently  as  he  pleases,  whilst  A.,  with 
sleepless  vigilance,  sees  to  it  that  no  damage  is  done,  or  if  there  is, 
that  he  will  be  the  sufferer.  This  is  the  reductio  ad  absurdum  of  apply- 
ing the  doctrine  of  contributory  negligence  in  such  a  case.  And  it  is 
absurd,  I  care  not  by  what  Court  or  where  applied. 

Now  the  case  of  a  railroad  company  is  like  the  case  of  an  individual. 
Both  stand  on  the  same  footing  with  respect  to  their  rights  and  liabili- 
ties. Both  are  engaged  in  the  pursuit  of  a  lawful  business,  and  are 
alike  liable  for  damage  or  injiuy  caused  by  their  negligence  in  the 
prosecution  of  it.    Fire  is  an  agent  of  an  exceedingly  dangerous  and 


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SECT.  Vin.]         KELLOGG  V.  CHICAGO,  Ac.  RY.  CO.  349 

unruly  kind,  and,  though  applied  to  a  lawful  purpose,  the  law  requires 
the  utmost  care  in  the  use  of  all  reasonable  and  proper  means  to  pre- 
vent damage  to  the  property  of  third  persons.  This  obligation  of 
care,  the  want  of  which  constitutes  negligence  according  to  the  circum- 
stances, is  imposed  upon  the  party  who  uses  the  fire,  and  not  upon 
those  persons  whose  property  is  exposed  to  danger  by  reason  of  the 
negligence  of  such  party.  Third  persons  are  merely  passive,  and  have 
the  right  to  remain  so,  using  and  enjoying  their  own  property  as  they 
will,  so  far  as  responsibility  for  the  negligence  of  the  party  setting  the 
imruly  and  destructive  agent  in  motion  is'concemed.  If  he  is  negli- 
gent, and  damage  ensues,  it  is  his  fault  and  cannot  be  theirs,  unless 
they  contribute  to  it  by  some  unlawful  or  improper  act.  But  the  use 
of  their  own  property  as  best  suits  their  own  convenience  and  pur- 
poses, or  as  other  people  use  theirs,  is  not  unlawful  or  improper.  It 
is  perfectly  lawful  and  proper,  and  no  blame  can  attach  to  them.  He 
cannot,  by  his  negligence,  deprive  them  of  such  use,  or  say  to  them, 
"  Do  this  or  that  with  your  property,  or  I  will  destroy  it  by  the  negli- 
gent and  improper  use  of  my  fire."  The  fault,  therefore,  in  both  a 
legal  and  moral  point  of  view,  is  with  him,  and  it  would  be  something 
strange  should  the  law  visit  all  the  consequences  of  it  upon  them.  The 
law  does  not  do  so,  and  it  is  an  utter  perversion  of  the  maxim  sic 
vtere  txWj  etc.,  thus  to  apply  it  to  the  persons  whose  property  is  so 
destroyed  by  the  negligence  of  another.  It  is  changing  it  from  "  So 
use  your  own  as  not  to  injure  another's  property,"  to  "  So  use  your 
own  that  another  shall  not  injure  your  property,"  by  his  carelessness 
and  negligence.  It  would  be  a  very  great  burden  to  lay  upon  all  the 
farmers  and  proprietors  of  lands  along  our  extensive  lines  of  railway, 
were  it  to  be  held  that  they  are  bound  to  guard  against  the  negligence 
of  the  companies  in  this  way,  —  that  the  law  imposes  this  duty  upon 
them.  Alwajrs  burdensome  and  dilBScult,  it  would,  in  nmnerous  in- 
stances, be  attended  with  great  expense  and  trouble.  Changes  would 
have  to  be  made  in  the  mode  of  use  and  occupation,  and  sometimes 
the  use  abandoned,  or  at  least  all  profitable  use.  Houses  and  build* 
ings  would  have  to  be  removed,  and  valuable  timber  cut  down  and 
destroyed.  These  are,  in  general,  very  combustible,  especially  at 
particular  seasons  of  the  year.  The  presence  of  these  along  or  near 
the  line  of  the  railroad  would  be  negligence  in  the  farmer  or  pro- 
prietor. In  the  event  of  their  destruction  by  the  negligence  of  the 
company,  he  would  be  remediless.  He  must  remove  them,  therefore, 
for  his  own  safety.  His  only  security  consists  in  that.  He  must  re- 
move ever3rthing  combustible  from  his  own  land  in  order  that  the 
company  may  leave  all  things  combustible  on  its  land  and  exposed 
without  fear  of  loss  or  danger  to  the  company  to  being  ignited  at  any 
moment  by  the  fires  from  its  own  engines.  If  this  duty  is  imposed 
upon  the  farmers  and  other  proprietors  of  adjoining  lands,  why  not 
require  them  to  go  at  once  to  the  railroad  and  remove  the  dry  grass 


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350  KELLOGG  V.  CHICAGO,  Ac.  RY.  CO.  [CHAP.  II. 

and  other  inflammable  material  there  ?  There  is  the  origin  of  the 
mischief,  and  there  the  place  to  provide  securities  against  it.  It  is 
vastly  easier,  by  a  few  sUght  measures  and  a  little  precaution,  to  pre- 
vent the  conflagration  in  the  first  place  than  to  stay  its  ravages  when 
it  has  once  begun,  particularly  if  the  wind  be  blowing  at  the  time,  as 
it  generally  is  upon  our  open  prairies.  With  comparatively  little 
trouble  and  expense  upon  the  road  itself,  a  little  labor  bestowed  for 
that  purpose,  the  mischief  might  be  remedied.  And  this  is  an  addi- 
tional reason  why  the  burden  ought  not  to  be  shifted  from  the  com- 
pany upon  the  proprietor  of  the  adjoining  land;  although,  if  it  were 
otherwise,  it  certainly  would  not  change  what  ought  to  be  the  clear 
rule  of  law  upon  the  subject. 

And  the  following  cases  will  be  found  in  strict  harmony  with  those 
above  cited,  and  strongly  to  sustain  the  principles  there  laid  down,  and 
for  which  I  contend:  Martin  v.  Western  Union  Railroad  Co.,  23  Wis. 
437;  Piggott  v.  Eastern  Counties  R.  R.  Co.,  54  E.  C.  L.  228;  Smith 
V.  London  and  Southwestern  R.  R.  Co.,  Law  Reports,  5  C.  P.  98; 
Vaughan  v.  Menlove,  7  C.  &  P.  525  [32  E.  C.  L.  613];  Hewey  v. 
Nourse,  54  Me.  256;  Turberville  v.  Stampe,  1  Ld.  Raym.  264;  s.  c. 
1  Salk.  13;  Pantam  v.  Isham,  id.  19;  Field  v.  N.  Y.  C.  R.  R.,  32 
N.  Y.  339;  Bachelder  v.  Heagan,  18  Maine,  32;  Barnard  v.  Poor, 
21  Pick.  378;  Fero  v,  Buffalo  and  State  Line  R.  R.  Co.,  22  N.  Y. 
209;  Fremantle  v.  The  London  and  Northwestern  R.  R.  Co.,  100 
E.  C.  L.  88;  Hart  v.  Western  Raikoad  Co.,  13  Met.  99;  Ingersoll  v. 
Stockbridge  &  Pittsfield  R.  R.  Co.,  8  Allen,  438;  Perley  v.  Eastern 
Railroad  Co.,  98  Mass.  414;  Hooksett  v.  Concord  Raikoad,  38  N.  H. 
242;  McCready  v.  Railroad  Co.,  2  Strobh.  Law  R.  356;  Cleveland  v. 
Grand  Trunk  Railway  Co.,  42  Vt.  449;  1  Bl.  Comm.  131;  Com.  Dig. 
Action  fo^  Negligence  (A.  6). 

It  is  true  that  some  of  these  cases  arose  under  statutes  creating  a 
liability  on  the  part  of  railroad  companies,  but  that  does  not  affect  the 
principle.  Negligence  in  the  plaintiff,  contributing  to  the  Iq^s,  is  a 
defence  to  an  action  under  the  statutes,  the  same  as  to  an  action  at 
common  law.    8  Allen,  440;  6  id.  87. 

Cole,  J.,  concurred. 

Paine,  J.,  delivered  a  dissenting  opinion. 

Judgment  affirmed. 

Defendants  moved  for  a  rehearing. 

Dixon,  C.  J.     (Sept.  21,  1871.)  .  .  . 

The  learned  counsel  .  .  .  argue  that,  if  logically  carried  out,  the 
doctrine  would  utterly  abrogate  the  rule  that  a  party  cannot  recover 
damages  where,  by  the  exercise  of  ordinary  care,  he  could  have  avoided 
the  injury;  and  so,  in  the  present  case,  after  discovering  the  fire,  the 
plaintiff  might  have  leaned  on  his  plough-handles  and  watched  its 
progress,  without  effort  to  stay  it,  where  such  effort  would  have  been 
effectual,  and  yet  have  been  free  from  culpable  negligence.    The  dis- 


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SECT.  VIII.]  KELLOGG  V.  CHICAGO,  Ac.  RY.  CO.  351 

tinction  is  between  a  known,  present,  or  immediate  danger,  arising 
from  the  negligence  of  another,  —  that  which  is  imminent  and  cer- 
tain, unless  the  party  does  or  omits  to  do  some  act  by  which  it  may 
be  avoided,  —  and  a  danger  arising  in  like  manner,  but  which  is  re- 
mote and  possible  or  probable  only,  or  contingent  and  uncertain,  de- 
pending on  the  course  of  future  events,  such  as  the  future  conduct  of 
the  negligent  party,  and  other  as  yet  unknown  and  fortuitous  circum- 
stances. The  difference  is  that  between  realization  and  anticipation. 
A  man  in  his  senses,  in  face  of  what  has  been  aptly  termed  a  "  seen 
danger  "  (Shearman  and  Redfield,  §  34,  note  1),  that  is,  one  which 
presently  threatens  and  is  known  to  him,  is  bound  to  realize  it,  and  to 
use  all  proper  care  and  make  all  reasonable  efforts  to  avoid  it,  and  if  he 
does  not,  it  is  his  own  fault;  and  he  having  thus  contributed  to  his 
own  loss  or  injury,  no  damage  can  be  recovered  from  the  other  party, 
however  negligent  the  latter  may  have  been.  But,  in  case  of  a  danger 
of  the  other  kind,  one  which  is  not  "  seen,"  but  exists  in  anticipation 
merely,  and  where  the  injury  may  or  may  not  accrue,  but  is  probable 
or  possible  only  from  the  continued  culpable  negligence  of  another, 
there  the  law  imposes  no  such  duty  upon  the  person  who  is  or  may  be 
so  exposed,  and  he  is  not  obliged  to  change  his  conduct  or  the  mode 
of  transacting  his  affairs,  which  are  otherwise  prudent  and  proper,  in 
order  to  avoid  such  anticipated  injuries  or  prevent  the  mischiefs  which 
may  happen  through  another's  default  and  culpable  want  of  care. 

Rehearing  denied.^ 

1  Vaughan  v.  Taff  Vale  R.  Co.,  3  H.  &  N.  743;  Leroy  Fibre  Co.  v.  Chicago  R. 
Co.,  232  U.  S.  340:  Flynn  v.  San  JFrancisco  R.  Co.,  40  Cfal.  14;  Fitch  v.  Pacific  R. 
Co.,  45  Mo.  322;  Salmon  v.  Delaware  R.  Co.,  38  N.  J.  Law,  5:  Philadelphia  R.  Co. 
V.  Schultz,  93  Pa.  St.  341  Accord,   But  see  Collins  v.  New  York  R.  Co.,  5  Hun,  499. 

In  Leroy  Fibre  Co.  v,  Chicago  R.  Co.,  st^pra,  Holmes,  J.,  (concurring  in  the 
result)  said: 

''  If  a  man  stacked  his  flax  so  near  to  a  railroad  that  it  obviously  was  likely  to  be 
set  fire  to  by  a  well-managed  train,  I  should  say  that  he  could  not  throw  the  loss 
upon  the  road  by  the  oscillating  result  of  an  inquiry  by  the  jury  whether  the  road 
had  used  due  care.  I  should  say  that  although  of  course  he  had  a  rieht  to  put  his 
flax  where  he  liked  upon  his  own  land  the  hability  of  the  railroad  for  a  fire  was 
absolutely  conditioned  upon  the  stacks  being  at  a  reasonably  safe  distance  from 
the  train.  I  take  it  that  probably  many,  certainly  some,  rules  of  law  based  on  less 
than  universal  considerations  are  macle  absolute  and  universal  in  order  to  limit 
those  over-refined  speculations  that  we  all  deprecate^  especially  where  such  rules 
are  based  upon  or  affect  the  continuous  physical  relations  of  material  things.  The 
right  that  is  given  to  inflict  various  inconveniences  upon  nei^boring  lands  by 
bmlding  or  digging,  is  ^ven,  I  presume,  because  of  the  public  mterest  in  making 
improvement  ftee,  yet  it  generally  is  made  absolute  by  the  common  law.  It  is  not 
thought  worth  while  to  let  the  right  to  build  or  maintain  a  bam  depend  upon  the 
speculations  of  a  jury  as  to  motives.  A  defect  in  the  highway,  declared  a  defect  in 
the  interest  of  the  least  competent  travellers  that  can  travel  unattended  without 
taking  legal  risks,  or  in  the  interest  of  the  average  man^  I  suppose  to  be  a  defect  as 
to  all.  And  as  in  this  case  the  distinction  between  the  mevi^Dle  and  the  negligent 
escape  of  sparks  is  one  of  the  most  refined  in  the  world,  I  think  that  I  must  be 
right  so  far^  as  to  the  law  in  the  case  supposed. 

If  I  am  nght  so  far,  a  very  important  element  in  determining  the  right  to  recover 
is  whether  the  plaintiff 's  flax  was  so  nerr  to  the  track  as  to  be  in  danger  from  even  a 
prudently  managed  engine.    Here  certairly,  except  in  a  clear  case,  we  should  call 


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362  THE  BERNINA  [CHAP.  II. 

THE  BERNINA 

In  the  Coxjkt  of  Appeal,  January  24,  1887. 

Reported  in  Law  Reports,  12  Probate  Division,  58. 

Appeal  from  a  judgment  of  Butt,  J.  (in  the  Probate,  Divorce,  and 
Admiralty  Division,  reported  in  11  Prob.  Div.  31),  on  a  special  case 
stated  for  the  opinion  of  the  Court,  in  three  actions  brought  in  per- 
sonam against  the  owners  of  the  steamer  Bemina. 

Butt,  J.,  held,  on  the  authority  of  jThorogood  r.Bryan,  8  C.  B.  115,  | 
that  the  plaintiffs  were  unable  to  recover  against  the  defendants,  and 
dismissed  the  actions. 

The  plaintiffs  appealed.* 

LiNDLEY,  L.  J.  This  was  a  special  case.  Three  actions  are  brought 
in  the  Admiralty  Division  of  the  High  Court  by  the  respective  legal 
personal  representatives  of  three  persons  on  board  the  Bushire  against 
the  owners  of  the  Bernina.  Those  persons  were  killed  by  a  collision 
between  the  two  vessels,  both  of  which  were  negligently  navigated. 
One  of  the  three  persons  (Toeg)  was  a  passenger  on  the  Bushire;  one 
(Armstrong)  was  an  engineer  of  the  ship,  though  not  to  blame  for 
the  collision.  The  third  (Owen)  was  her  second  oflScer,  and  was  in 
charge  of  her,  and  was  himself  to  blame  for  the  collision.    The  ques- 

in  the  jury.  I  do  not  suppose  that  any  one  would  call  it  prudent  to  stack  flax 
within  five  feet  of  the  en^es  or  imprudent  to  do  it  at  a  distance  of  half  a  mile,  and 
it  would  not  be  absurd  if  the  law  ultimately  should  formulate  an  exact  measure, 
as  it  has  tended  to  in  other  instances:  (Martin  t;.  District  of  Ck^umbia.  205  U.  S. 
135, 139)  but  at  present  I  take  it  that  it  the  question  I  suggest  be  material  we  should 
let  the  jury  deade  whether  seventy  feet  was  too  near  by  the  criterion  that  I  have 
proposed.  Therefore,  while  the  majority  answer  the  first  question.  No,  on  the 
ground  that  the  railroad  is  liable  upon  the  facts  stated  as  matter  of  law,  I  should 
answer  it  Yes,  with  the  proviso  that  it  was  to  be  answered  No,  in  case  the  jury , 
found  that  the  flax,  although  near,  was  not  near  enough  to  the  trains  to  endanger 
it  if  the  engines  were  prudently  managed,  or  else  I  should  decline  to  answer  the 
question  because  it  fails  to  state  the  distance  of  the  stacks. 

I  do  not  think  we  need  trouble  ourselves  with  the  thought  that  my  view  depends 
upon  differences  of  degree.  The  whole  law  does  so  as  soon  as  it  is  civilized.  See 
Nash  V.  United  States,  229  U.  S.  373,  376, 377.  Negligence  is  all  decree  —  that  of 
the  defendant  here  degree  of  the  nic^  sort;  and  between  the  variations  according 
to  distance  that  I  suppose  to  exist  and  the  simple  universality  of  the  rules  in  the 
Twelve  Tables  or  the  Leges  Barbarorum,  there  lies  the  culture  of  two  thousand 
years." 

Where  inflammable  matter  is  brought  upon  land  and  kept  near  the  track^see 
Erickson  v,  Pennsylvania  R.  Co.,  (C.  C  A.)  170  Fed.  572;  Southern  R.  Co.  v.  Wil- 
son, 138  Ala.  510;  Railway  Co.  v.  Fire  Ass'n,  55  Ark.  163;  Cleveland  R.  Co.  v. 
Scantland,  151  Ind.  488;  Boston  Excelsior  Co.  v.  Bangor,  93  Me.  52;  Peter  v. 
Chicago  R.  Co.,  121  Mich.  324;  Kalbfleisch  v.  Lon^  Island  R.  Co.,  102  N.  Y.  520; 
Southern  R.  Co.  v.  Patterson,  105  Va.  6,  in  accord  with  the  prmcipal  case.  See  also 
Ross  V.  Boston  R.  Co.,  6  All.  87. 

Macon  R.  Co.  v.  McConnell,  27  Ga.  481;  Coates  v.  Missouri  R.  Co.,  61  Mo.  38 
(but  see  Mo.  Rev.  St.  1909,  §3151);  Murphy  v.  Chicago  R.  Co.,  45  Wis.  222 
Contra. 

Compare  Alabama  R.  Co.  t;.  Fried,  81  Miss.  314;  Louisville  R.  Co.  v.  Short,  110 
Tenn.  713;  San  Antonio  R.  Co.  v.  Home  I.  Co.,  (Tex.  Civ.  App.)  70  S.  W.  999. 

^  Statement  of  case  abridged.    Arguments  omitted. 


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SECT.  Vm.]  THE  BERNINA  353 

tions  for  decision  are,  whether  any,  and  if  any,  which  of  these  actions 
can  be  maintained  ?  and  if  any  of  them  can,  then  whether  the  claims 
recoverable  are  to  be  awarded  according  to  the  principles  which  prevail 
at  conmion  law,  or  according  to  those  which  are  adopted  in  the  Court 
of  Admiralty  in  cases  of  collision. 

[The  learned  judge  then  decides  that  although  actions  under  Lord 
Campbell's  Act  for  causing  death  can  now  be  brought  in  the  Admi- 
ralty Division,  yet  the  assessment  of  damages  is  to  be  governed  by  the 
rules  prevailing  in  conmion-law  actions.] 

Having  cleared  the  ground  thus  far,  it  is  necessary  to  return  to  the 
statute  and  see  under  what  circumstances  an  action  upon  it  can  be 
supported.  The  first  matter  to  be  considered  is  whether  there  has  been 
any  such  wrongful  act,  neglect,  or  default  of  the  defendants  as  would, 
if  death  had  not  ensued,  have  entitled  the  three  deceased  persons  re- 
spectively to  have  sued  the  defendants.  Now,  as  regards  one  of  them, 
namely,  Owen,  the  second  officer,  who  was  himself  to  blame  for  the 
collision,  it  is  clear  that,  if  death  had  not  ensued,  he  could  not  have 
maintained  an  action  against  the  defendants.  There  was  negligence  on 
his  part  contributing  to  the  collision,  and  no  evidence  to  show  that, 
notwithstanding  his  negligence,  the  defendants  could,  by  taking  rea- 
sonable care,  have  avoided  the  collision.  There  was  what  is  called 
such  contributory  negligence  on  his  part  as  to  render  an  action  by  him 
unsustainable.  It  follows,  therefore,  that  his  representatives  can  re- 
cover nothing  under  Lord  Campbell's  Act  for  his  widow  and  children, 
and  their  action  cannot  be  maintained.  The  other  two  actions  are  not 
so  easily  disposed  of .  They  raise  two  questions:  (1)  Whether  the  pas- 
senger To^,  if  alive,  could  have  successfully  sued  the  defendants;  and 
if  he  could,  then  (2)  whether  there  is  any  difference  between  the  case 
of  the  passenger  and  that  of  the  engineer  Armstrong.  The  learned 
judge  whose  decision  is  under  review  felt  himself  bound  by  authority 
to  decide  both  actions  against  the  plaintiffs.  The  authorities  which  the 
learned  judge  followed  are  Thorogood  v.  Bryan,  8  C.  B.  115,  and 
Armstrong  v.  Lancashire  &  Yorkshire  Ry.  Co.,  Law  Rep.  10  Ex.  47; 
and  the  real  question  to  be  determined  is  whether  they  can  be  properly 
overruled  or  not.  Thorogood  v,  Bryan,  supra,  was  decided  in  1849, 
and  has  been  generally  followed  at  Nisi  Prius  ever  since  when  cases 
like  it  have  arisen.  But  it  is  curious  to  see  how  reluctant  the  Courts 
have  been  to  affirm  its  principle  after  argument,  and  how  they  have 
avoided  doing  so,  preferring,  where  possible,  to  decide  cases  before 
them  on  other  grounds.  See,  for  example,  Rigby  v.  Hewitt,  5  Ex. 
240;  Greenland  v.  Chaplin,  5  Ex.  243;  Waite  v.  North  Eastern  Ry. 
Co.,  E.  B.  &  E.  719.  I  am  not  aware  that  the  principle  on  which 
Thorogood  v.  Bryan,  supra,  was  decided  has  ever  been  approved  by 
any  Court  which  has  had  to  consider  it.  On  the  other  hand,  that  case 
has  been  criticised  and  said  to  be  contrary  to  principle  by  persons  of 
the  highest  eminence,  not  only  in  this  country,  but  also  in  Scotland 


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354  THE  BERNINA  [CHAP.  II. 

and  in  America.  And  while  it  is  true  that  Thorogood  v.  Bryan,  mpra, 
has  never  been  overruled,  it  is  also  true  that  it  has  never  been  afl5rmed 
by  any  Court  which  could  properly  overrule  it,  and  it  cannot  be  yet 
said  to  have  become  indisputably  settled  law.  I  do  not  think,  there- 
fore, that  it  is  too  late  for  a  Court  of  Appeal  to  reconsider  it,  or  to 
overrule  it  if  clearly  contrary  to  well  settled  legal  principles. 

Thorogood  v.  Bryan,  supra,  was  an  action  founded  on  Lord  Camp- 
bell's Act.  The  facts  were  shortly  as  follows.  The  deceased  was  a 
passenger  in  an  omnibus,  and  he  had  just  got  off  out  of  it.  He  was 
knocked  down  and  killed  by  another  omnibus  belonging  to  the  defend- 
ants. There  was  negligence  on  the  part  of  the  drivers  of  both  omni- 
buses, and  it  appears  that  there  was  also  negligence  on  the  part  of  the 
deceased  himself.  The  jury  found  a  verdict  for  the  defendants,  and 
there  does  not  seem  to  have  been  any  reason  why  the  Court  should 
have  disallowed  the  verdict  if  not  driven  to  do  so  on  technical  grounds. 
In  those  days,  however,  a  misdirection  by  the  judge  to  the  jury  com- 
pelled the  Court  to  grant  a  new  trial,  whether  any  injustice  had  been 
done  or  not;  and  accordingly  the  plaintiff  moved  for  a  new  trial  on 
the  ground  of  misdirection,  and  it  is  with  reference  to  this  point  that 
the  decision  of  the  Court  is  of  importance.  The  learned  judge  who 
tried  the  case  told  the  jury  in  effect  to  find  for  the  defendant  if  they 
thought  that  the  deceased  was  killed  either  by  reason  of  his  own  want 
of  care  or  by  reason  of  want  of  care  on  the  part  of  the  driver  of  the 
omnibus  out  of  which  he  was  getting.  The  last  direction  was  com- 
plained of,  but  was  upheld  by  the  Court.  The  ratio  •decidendi  was 
that  if  the  death  of  the  deceased  was  not  occasioned  by  his  own  negli- 
gence it  was  occasioned  by  the  joint  negligence  of  both  drivers,  and 
that,  if  so,  the  negligence  of  the  driver  of  the  omnibus  off  which  the 
deceased  was  getting  was  the  negligence  of  the  deceased;  and  the 
reason  for  so  holding  was  that  the  deceased  had  voluntarily  placed 
himself  under  the  care  of  the  driver.  Maule,  J.,  puts  it  thus:  "  The 
deceased  must  be  considered  as  identified  with  the  driver  of  the  omni- 
bus in  which  he  voluntarily  became  a  passenger,  and  the  negUgence  of 
the  driver  was  the  negligence  of  the  deceased."  This  theory  of  identi- 
fication was  quite  new.  No  trace  of  it  is  to  be  found  in  any  earlier 
decision,  nor  in  any  legal  treatise,  English  or  foreign,  so  far  as  I  have 
been  able  to  ascertain,  nor  has  it  ever  been  satisfactorily  explained. 
It  must  be  assumed,  for  the  purpose  of  considering  the  grounds  of 
the  decision  in  question,  that  the  passenger  was  not  himself  in  fault. 
Assuming  this  to  be  so,  then,  if  both  drivers  were  negligent,  and  both 
caused  the  injiuy  to  the  passenger,  it  is  difficult  to  understand  why 
both  drivers  or  their  masters  should  not  be  liable  to  him.  The  doc- 
trine of  identification  laid  down  in  Thorogood  v,  Bryan,  supra,  is,  to 
me,  quite  unintelligible.  It  is,  in  truth,  a  fictitious  extension  of  the 
principles  of  agency,  but  to  say  that  the  driver  of  a  public  conveyance 
is  the  agent  of  the  passengers  is  to  say  that  which  is  not  true  in  fact. 


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SECT.  Vni.]  THE  BERNINA  355 

Such  a  doctrine,  if  made  the  basis  of  further  reasoning,  leads  to  re- 
sults which  are  wholly  untenable,  e.  g.,  to  the  result  that  the  pas- 
sengers would  be  liable  for  the  ne^gence  of  the  person  driving  them, 
which  is  obviously  absurd,  but  which,  of  coiunse,  the  Court  never 
meant.  All  the  Court  meant  to  say  was  that  for  purposes  of  suing 
for  negligence  the  passenger  was  in  no  better  position  than  the  man 
driving  him.  But  why  not  ?  The  driver  of  a  public  vehicle  is  not 
selected  by  the  passenger  otherwise  than  by  being  hailed  by  him  as  one 
of  the  public  to  take  him  up;  and  such  selection,  if  selection  it  can  be 
called,  does  not  create  the  relation  of  principal  and  agent  or  master 
and  servant  between  the  passenger  and  the  driver,  the  passenger 
knows  nothing  of  the  driver  and  has  no  control  over  him;  nor  is  the 
driver  in  any  proper  sense  employed  by  the  passenger.  The  driver,  if 
not  his  own  master,  is  hired,  paid,  or  employed  by  the  owner  of  the 
vehicle  he  drives  or  by  some  other  person  who  lets  the  vehicle  to  him. 
The  orders  he  obeys  are  his  employer's  orders.  These  orders,  in  the 
case  of  an  omnibus,  are  to  drive  from  such  a  place  to  such  a  place  and 
take  up  and  put  down  passengers;  and  in  the  case  of  a  cab  the  orders 
are  to  drive  where  the  passenger  for  the  time  being  may  desire  to  go, 
within  the  limits  expr^y  or  impliedly  set  by  the  employer.  If  the 
passenger  actively  interferes  with  the  driver  by  giving  him  orders  as 
to  what  he  is  to  do,  I  can  understand  the  meaning  of  the  expression 
that  the  passenger  identifies  himself  with  the  driver,  but  no  such  inter- 
ference was  suggested  in  Thorogood  v.  Bryan,  supra.  The  principles 
of  the  law  of  negligence,  and  in  particular  of  what  is  called  contribu- 
tory negligence,  have  been  discufi»ed  on  many  occasions  since  that  case 
was  decided,  and  are  much  better  imderstood  now  than  they  were 
thirty  years  ago.  Tuflf  v.  Warman,  5  C.  B.  (n.  s.)  573,  in  the  Exchequer 
Chamber,  and  Radley  v,  London  &  North  Western  Ry.  Co.,  1  App. 
Cas.  754,  in  the  House  of  Lords,  show  the  true  grounds  on  which  a 
person  himself  guilty  of  n^ligence  is  unable  to  maintain  an  action 
against  another  for  an  injury  occasioned  by  the  combined  negligence 
of  both.  If  the  proximate  cause  of  the  injury  is  the  negligence  of  the 
plaintiff  as  well  as  that  of  the  defendant,  the  plaintiff  cannot  recover 
anything.  The  reason  for  this  is  not  easily  discoverable.  But  I  take 
it  to  be  settled  that  an  action  at  common  law  by  A.  against  B.  for 
injury  directly  caused  to  A.  by  the  want  of  care  of  A.  and  B.  will  not 
lie.  As  Pollock,  C.  B.,  pointed  out  in  Greenland  v.  Chaplin,  supra, 
the  jury  cannot  take  the  consequences  and  divide  them  in  proportion 
according  to  the  negligence  of  the  one  or  the  other  party.  But  if  the 
plaintiff  can  show  that  although  he  has  himself  been  negligent,  the 
real  and  proximate  cause  of  the  injury  sustained  by  him  was  the  negli- 
gence of  the  defendant,  the  plaintiff  can  maintain  an  action,  as  is 
shown  not  only  by  Tuff  v:  Warman,  supra,  and  Radley  v.  London  & 
North  Western  Ry.  Co.,  supra,  but  also  by  the  well-known  case  of 
Davies  v.  Mann,  10  M.  &  W.  546,  and  other  cases  of  that  class.    The 


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356  THE  BERNINA  [CHAP.  H. 

cases  which  give  rige  to  actions  for  negligence  are  primarily  reducible 
to  three  classes,  as  follows:  — 

1.  A.  without  fault  of  his  own  is  injured  by  the  negligence  of  B., 
then  B.  is  liable  to  A.  2.  A.  by  his  own  fault  is  injured  by  B.  without 
fault  on  his  part,  then  B.  is  not  liable  to  A.  3.  A.  is  injured  by  B. 
by  the  fault  more  or  less  of  both  combined;  then  the  following  further 
distinctions  have  to  be  made :  (a)  if,  notwithstanding  B.'s  negligence, 
A.  with  reasonable  care  could  have  avoided  the  injury,  he  cannot  sue 
B.:  Butterfield  v.  Forrester,  11  East,  60;  Bridge  v.  Grand  Junction 
Ry.  Co.,  3  M.  &  W.  244;  Dowell  v.  General  Steam  Navigation  Co., 
5  E.  &  B.  195;  (6)  if,  notwithstanding  A.'s  negligence^  B.  with  rea- 
sonable care  could  have  avoided  injuring  A.,  A.  can  sue  B.:  TuflF  v, 
Warman,  supra;  Radley  v.  London  &  North  Western  Ry.  Co.,  supra, 
Davies  v.  Mann,  supra;  (c)  if  there  has  been  as  much  want  of  rea- 
sonable care  on  A.'s  part  as  on  B.'s  or,  in  other  words,  if  the  proximate 
cause  of  the  injury  is  the  want  of  reasonable  care  on  both  sides,  A. 
cannot  sue  B.  In  such  a  case  A.  cannot  with  truth  say  that  he  has 
been  injured  by  B.'s  negligence,  he  can  only  with  truth  say  that  he  has 
been  injured  by  his  own  carelessness  and  B.'s  negligence,  and  the  two 
combined  give  no  cause  of  action  at  common  law.  This  follows  from 
the  two  sets  of  decisions  already  referred  to.  But  why  in  such  a  case 
the  damages  should  not  be  apportioned,  I  do  not  profess  to  under- 
stand. However,  as  already  stated,  the  law  on  this  point  is  settled, 
and  not  open  to  judicial  discussion.  If  now  another  person  is  intro- 
duced the  same  principles  will  be  found  applicable.  Substitute  in  the 
foregoing  cases  B.  and  C.  for  B.,  and  unless  C.  is  A.'s  agent  or  servant 
there  will  be  no  difiference  in  the  result,  except  that  A.  will  have  two 
persons  instead  of  one  liable  to  him.  A.  may  sue  B.  and  C.  in  one 
action,  and  recover  damages  against  them  both;  or  he  may  sue  them 
separately  and  recover  the  whole  damage  sustained  against  the  one  he 
sues:  Clark  v.  Chambers,  3  Q.  B.  D.  327,  where  all  the  previous  au- 
thorities were  carefully  examined  by  the  late  L.  C.  J.  Cockbum.  This 
is  no  doubt  hard  on  the  defendant,  who  is  alone  sued,  and  this  hard- 
ship seems  to  have  influenced  the  Court  in  deciding  Thorogood  v. 
Bryan,  supra.  In  that  case  the  Court  appears  to  have  thought  it  hard 
on  the  defendant  to  make  him  pay  all  the  damages  due  to  the  plaintiflf, 
and  that  it  was  no  hardship  to  the  plaintiflf  to  exonerate  the  defendant 
from  liability,  as  the  plaintiflf  had  a  clear  remedy  against  the  master  of 
the  omnibus  in  which  he  was  a  passenger.  But  it  is  diflScult  to  see  the 
justice  of  exonerating  the  defendant  from  all  liability  in  respect  of  his 
own  wrong  and  of  throwing  the  whole  liability  on  some  one  who  was  no 
more  to  blame  than  he.  The  injustice  to  the  defendant,  which  the 
Court  sought  to  avoid,  is  common  to  all  cases  in  which  a  wrong  is  done 
by  two  people  and  one  of  them  alone  is  made  to  pay  for  it.  The  rule 
which  does  not  allow  of  contribution  among  wrong-doers  is  what  pro- 
duces hardship  in  these  cases,  but  the  hardship  produced  by  that  rule  (if 


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SECT.  Vin.]  THE  BERNINA  367 

really  applicable  to  such  cases  as  these  under  discussion)  does  not  jus- 
tify the  Court  in  exonerating  one  of  the  wrong-doers  from  all  responsi- 
bility for  his  own  misconduct  or  the  misconduct  of  his  servants.  I  can 
hardly  believe  that  if  the  plaintiff  in  Thorogood  v.  Bryan,  supra,  had 
sued  the  proprietors  of  both  omnibuses  it  would  have  been  held  that 
he  had  no  right  of  action  against  one  of  them.  Having  given  my  rea- 
sons for  my  inability  to  concur  in  the  doctrine  laid  down  in  Thorogood 
V.  Bryan,  supra,  I  proceed  to  consider  how  far  that  doctrine  is  sup- 
ported by  other  authorities.  [After  commenting  on  various  author- 
ities]; Thorogood  v.  Bryan,  supra,  and  Armstrong  v.  Lancashire  & 
Yorkshire  Ry.  Co.,  supra,  affirm  that,  although  if  A.  is  injured  by  the 
combined  negligence  of  B.  and  C,  A.  can  sue  B.  and  C,  or  either  of 
them,  he  cannot  sue  C.  if  he,  A.,  is  under  the  care  of  B.  or  in  his  em- 
ploy. From  this  general  doctrine  I  am  compelled  most  respectfully  to 
dissent,  but  if  B.  is  A.'s  agent  or  servant  the  doctrine  is  good.  In 
Scotland  the  decision  in  Thorogood  v.  Bryan,  supra,  was  discussed 
and  held  to  be  unsatisfactory  in  the  case  of  Adams  v.  Glasgow  & 
South  Western  Ry.  Co.,  3  Court  Sess.  Cas.  216.  In  America  the  sub- 
ject was  recently  examined  with  great  care  by  the  Supreme  Court  of 
the  United  States  in  Little  v.  Hackett,  14  Am.  Law  Record,  677,  64 
Am.  Rep.  16,^  in  which  the  English  and  American  cases  were  reviewed, 
and  the  doctrine  laid  down  in  Thorogood  v.  Bryan,  supra,  was  dis- 
tinctly repudiated  as  contrary  to  sound  principles.  In  this  case  the 
plaintiff  was  driving  in  a  hackney  carriage  and  was  injured  by  a  colli- 
sion between  it  and  a  railway  train  on  a  level  crossing.  There  was 
negligence  on  the  part  of  the  driver  of  the  carriage  and  on  the  part 
of  the  railway  company's  servants,  but  it  was  held  that  the  plaintiff 
was  not  precluded  from  maintaining  an  action  against  the  railway 
company.  In  this  country  Thorogood  v.  Bryan,  supra,  was  distinctly 
disapproved  by  Dr.  Lushington  in  The  Milan,  Lush.  388;  and  even 
Lord  Bramwell,  who  has  gone  fmther  than  any  other  judge  in  up- 
holding the  decision,  has  expressed  disapproval  of  the  grounds  on 
which  it  was  based.  No  text-writer  has  approved  of  it,  and  the  com- 
ments in  Smith's  Leading  Cases  are  adverse  to  it  (vol.  i.  p.  266,  6th 
ed.).  For  the  reasons  above  stated,  I  am  of  opinion  that  the  doc- 
trines laid  down  in  Thorogood  v.  Bryan,  supra,  and  Armstrong  v. 
Lancashire  &  Yorkshire  Ry.  Co.,  supra,  are  contrary  to  sound  legal 
principles,  and  ought  not  to  be  regarded  as  law.  Consequently,  I 
am  of  opinion  that  the  decision  in  Toeg's  and  Armstrong's  case  ought 
to  be  reversed. 

Concurring  opinions  were  delivered  by  Lord  Esher,  M.  R.,  and 
Lopes,  L.  J.,  the  former  elaborately  reviewing  the  authorities. 

Extract  from  opinion  of  Lopes,  L.  J. :  — 

If,  again,  the  passenger  is  to  be  considered  in  the  same  position  as 
the  driver  or  owner,  and  their  negligence  is  to  be  imputed  to  him,  he 
would  be  liable  to  third  parties;  for  instance,  in  case  of  a  collision  be* 

'  116  U.  S.  366. 


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358  THE  BERNINA  *  [CHAP.  H. 

tween  two  omnibuses,  where  the  driver  of  one  was  entirely  in  fault, 
every  passenger  in  the  omnibus  free  from  blame  would  have  an  action 
against  every  passenger  in  the  other  omnibus,  because  every  such  pas- 
senger would  be  identified  with  the  driver,  and  is  responsible  for  his 
negligence.  Nor,  again,  in  the  case  just  put,  could  any  passenger  in 
the  other  omnibus  bring  an  action  against  the  owner  of  the  omnibus  in 
which  he  was  carried,  because  the  negligence  of  the  driver  is  to  be 
imputed  to  the  passenger.  If  the  n^ligence  of  the  driver  is  to  be  at- 
tributed to  the  passenger  for  one  purpose,  it  would  be  impossible  to 
say  he  is  not  to  be  affected  by  it  for  others.    Other  cases  might  be  put. 

The  more  the  decision  in  Thorogood.r.  Bryan,  supra,  is  examined, 
the  more  anomalous  and  indefensible  that  decision  appears. 

The  theory  of  the  identification  of  the  passengers  with  the  negligent 
driver  or  owner  is,  in  my  opinion,  a  fallacy  and  a  fiction,  contrary  to 
sound  law  and  opposed  to  every  principle  of  justice.  A  passenger  in 
an  omnibus  whose  injury  is  caused  by  the  joint  negligence  of  that 
onmibus  and  another,  may,  in  my  opinion,  maintain  an  action,  either 
against  the  owner  of  the  omnibus  in  which  he  was  carried  or  the  other 
omnibus,  or  both.  I  am  clearly  of  opinion  Thorogood  v.  Bryan,  supra, 
should  be  overruled. 

Extract  from  opinion  of  Lord  Esher,  M.  R.  :  — 

In  Armstrong's  action  a  point  is  suggested  that  he  ought  not  to 
recover  against  the  defendants,  the  owners  of  the  Bemina,  because  he 
could  not  recover  against  the  owners  of  the  Bushire.  He  would,  it  is 
rightly  said,  in  an  action  against  the  latter,  be  met  by  the  doctrine  of 
the  accident  being  occasioned  by  the  negligence  of  a  fellow-servant. 
The  suggestion  would  go  too  far.  It  would  apply  where  passengers  or 
goods  are  carried  by  railway,  or  in  ship,  under  a  notice  limiting  the 
liability  of  that  railway  company  or  shipowner.  It  would  work  mani- 
fest injustice  by  enabling  a  person  to  take  advantage  of  a  contract  to 
which  he  was  a  stranger,  and  for  the  advantage  of  which  he  had  given 
no  consideration.  The  rule  of  law  is,  that  a  person  injured  by  more 
than  one  wrong-doer  may  maintain  an  action  for  the  whole  damage 
done  to  him  against  any  of  them.  There  is  no  condition  that  he  can- 
not do  so  unless  he  might,  if  he  pleased,  maintain  an  action  against 
each  of  them.  There  is  no  disadvantage  to  the  one  sued,  because  there 
is  no  contribution  between  joint  wrong-doers.  The  plaintiff  Arm- 
strong is  therefore  entitled  to  judgment  for  the  whole  of  the  damages 
he  may  be  able  to  prove,  according  to  the  rule  of  damages  laid  down 
in  Lord  CampbelFs  Act.  So  in  the  case  of  the  plaintiff  Toeg.  In  the 
case  of  Owen,  the  deceased  was  personally  negUgent,  so  as  that  his 
negligence  was  partly  directly  a  cause  of  the  injury.  He  could  not 
have  recovered,  neither  can  his  administratrix.        Appeal  allowed. 

AflSrmed  in  the  House  of  Lords  under  the  name  of  Mills  v,  Arm- 
strong; L.  R.  13  App.  Cases,  1.* 

1  Little  V,  Hackett,  116  U.  S.  366;  Baltimore  R.  Co.  v.  Friel,  (C.  C.  A.)  77  Fed. 
126;  Georgia  R.  Co.  v.  Hughes,  87  Ala.  610;  Little  Rock  R.  Co.  v.  Harrell,  68 


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SECT.  VIII.]      SHULTZ  V.  OLD  COLONY  ST.  RAILWAY  CO.  359 


SHULTZ  V.   OLD  COLONY  STREET  RAILWAY  COMPANY 

Supreme  Judicial  Court,  Massachusetts,  January  1,  1907. 

Reported  in  ld3  Massachusetts  Reports,  309. 

Tort  for  personal  injuries  caused  by  the  collision  of  an  electric 
car  of  defendant  with  a  carriage  in  which  the  plaintiff  was  being 
driven. 

At  the  trial  the  evidence  for  plaintiff  tended  to  show  that  plaintiff 
was  being  driven  in  a  carriage  by  her  friend  B;  that  B  owned  the 
horse  and  carriage  and  was  giving  her  a  ride  to  her  home;  that  plain- 
tiff in  no  way  interfered  with  B*s  driving,  in  no  manner  controlled 
him  or  directed  how  he  should  drive,  but  left  the  driving  to  him;  and 
that  the  defendant's  car. from  behind,  without  any  warning,  ran  into 
the  hind  wheels  of  the  carriage. 

Defendant's  evidence  tended  to  show  that  the  collision  was  due  to 
B's  negligently  turning  suddenly  across  the  track. 

The  judge  instructed,  the  jury  (inter  alia)  that  if  B  was  careless  in 
driving  and  if  his  carelessness  contributed  to  the  injury,  then  plaintiff 
was  bound  by  his  carelessness  and  could  not  recover.  To  this  instruc- 
tion plaintiff  excepted. 

Verdict  for  defendant.* 

RuGG,  J.  This  case  fairly  raises  the  question  as  to  whether  the 
negligence  of  the  driver  of  a  vehicle  is  to  be  imputed  to  a  guest,  riding 
with  him  gratuitously,  and  personaUy  in  the  exercise  of  all  the  care 
which  ordinary  caution  requires. 

[The  learned  judge  then  elaborately  reviewed  the  authorities;  and, 
both  upon  authority  and  principle,  sustained  the  view  reached  in  The 
Bemina,  ante.    He  then  continued:] 

Ark.  454;  Thompson  t;.  Los  Angeles  R.  Co.,  165  Cal.  748;  Fujise  v.  Los  Angeles 
R.  Co.,  12  Cal.  App.  207;  Woodley  t;.  Baltimore  R.  Co.,  19  D.  C.  542;  Baltimore 
R.  Co.  V.  Adams,  10  App.  D.  C.  97;  Chicago  R.  Co.  v.  Hines,  183  111.  482;  Chicago 
R.  Co.  V.  Leach,  215  111.  184;  Pittsburgh  R.  Co.  v.  Spencer,  98  Ind.  186;  Miller  i;. 
Louisville  R.  Co.,  128  Ind.  97;  Chicago  R.  Co.  v.  Groves,  56  Kan.  601 ;  Louisville 
R.  Co.  V.  Case,  9  Bush,  728;  Louisville  R.  Co.  v.  Molloy,  122  Ky.  219;  Holzab  v. 
New  Orleans  R.  Co.,  38  La.  Ann.  185;  Roby  v.  Kansas  City  R.  Co.,  130  La.  880; 
Consolidated  Gas  Co.  v.  Getty,  96  Md.  683;  Cuddy  v,  Horn,  46  Mich.  596;  Gallo- 
way V.  Detroit  Ry.,  168  Mich.  343;  Flaherty  v.  Minneapolis  R.  Co.,  39  Minn.  328; 
Colton  V.  WiUmar  R.  Co.,  99  Minn.  366;  Gulf  R.  Co.  v.  Barnes.  94  Miss.  484; 
Becke  v.  Missouri  R.  Co.,  102  Mo.  544;  Sluder  v.  St.  Louis  Transit  Co.,  189  Mo. 
107;  Bennett  v.  New  Jersey  R.  Co.,  36  N.  J.  Law,  225;  New  York  R.  Co.  v,  Stem- 
brenner,  47  N.  J.  Law,  161;  Colegrove  v.  New  York  R.  Co.,  20  N.  Y.  492*  Webster 
V.  Hudson  R.  Co^  38  N.  Y.  260;  Arctic  Fire  Ins.  Co.  v.  Austin,  69  N.  Y.  470;  Lewis 
V,  Long  Island  R.  Co.,  162  N.  Y.  52;  Ward  v.  International  R.  Co..  206  N.  Y. 
83;  Crampton  v.  Ivie,  124  N.  C.  591;  Covington  Transfer  Co.  v.  Kelly,  36  Ohio 
St.  86;  Chickasha  R.  Co.  v.  Marshall,  43  Okl.  192;  Dean  v,  Pennsylvania  R.  Co., 
129  Pa.  St.  514:  Bunting  v.  Hogsett,  139  Pa.  St.  363;  Markham  v.  Houston 
Navigation  Co.,  73  Tex.  247:  Guff  R.  Co.  v.  Pendry,  87  Tex.  553;  New  York  R. 
Co.  V.  Cooper,  85  Va.  939;  Cfroft  v.  Northwestern  Steamship  Co.,  20  Wash.  175 
Accord. 

^  Statement  abridged.    Greater  part  of  c^iinion  omitted. 


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360  SHULTZ  V.  OLD  COLONY  ST.  RAILWAY  CO.  [CHAP.  II. 

The  rule  fairly  deducible  from  our  own  cases,  and  supported  by  the 
great  weight  of  authority  by  courts  of  other  jurisdictions,  is  that  where 
an  adult  person,  possessing  all  his  faculties  and  personally  in  the  ex- 
ercise of  that  degree  of  care,  which  common  prudence  requires  under 
an  the  attending  circumstances,  is  injured  through  the  negligence  of 
some  third  person  and  the  concurring  negligence  of  one  with  whom 
the  plaintiff  is  riding  as  guest  or  companion,  between  whom  and  the 
plaintiff  the  relation  of  master  and  servant  or  principal  and  agent,  or 
mutual  responsibility  in  a  common  enterprise,  does  not  in  fact  exist, 
the  plaintiff  being  at  the  time  in  no  position  to  exercisv^  authority  or 
control  over  the  driver,  then  the  negligence  of  the  driver  is  not  im- 
putable to  the  iniured  person,  but  the  latter  is  entitled  to  recover 
against  the  one  through  whose  wrong  his  injuries  were  sustained. 
Disregarding  the  passenger's  own  due  care,  the  test  whether  the  neg- 
ligence of  the  driver  is  to  be  imputed  to  the  one  riding  depends  upon 
the  latter's  control  or  right  of  control  of  the  actions  of  the  driver,  so 
as  to  constitute  in  fact  the  relation  of  principal  and  agent  or  master 
and  servant,  or  his  voluntary,  unconstrained,  non-contractual  surren- 
der of  all  care  for  himself  to  the  caution  of  the  driver.* 

Applying  this  statement  of  the  law  to  tjhe  present  case,  the  result  is 
that  the  plaintiff  would  not  be  entitled  to  recover  if  in  the  exercise  of 
common  prudence  she  ought  to  have  given  some  warning  to  the  driver 
of  carelessness  on  his  part,  which  she  observed  or  might  have  observed 
in  exercising  due  care  for  her  own  safety,'  nor  if  she  negligently  aban- 
doned the  exercise  of  her  own  faculties  and  trusted  entirely  to  the  vigi- 

^  Elyton  Land  Co.  v.  Mingea,  89  Ala.  521;  Birmingham  H.  Co.  v.  Baker,  132 
Ala.  507;  Hot  Springs  R.  Co.  v.  Hildreth,  72  Ark.  572;  Farley  w.  Wilmington  R. 
Co.,  3  Pennewill  581;  Porter  v.  Jacksonville  Electric  Co.,  64  Fla.  409;  Roach  v. 
Western  R.  Co.,  93  Ga.  785;  West  Chicago  R.  Co.  v.  Dougherty,  209  111.  241; 
Nonn  V.  Chicago  R.  Co.,  232  111.  378;  Yeates  v.  Illinois  R.  Co.,  241  111.  205;  Cin- 
cinnati R.  Co.  V.  Cook,  44  Ind.  App.  303;  Larkin  v.  Burlington  R.  Co.,  85  la.  492; 
Withey  v.  Fowler,  164  la.  377;  City  v.  Hatch,  57  Kan.  57;  Williams  v.  Withington, 
88  Kan.  809;  City  v.  Bott,  151  Ky.  678:  State  v.  Boston  R.  Co.,  80  Me.  430; 
Denis  v.  Lewiston  R.  Co.,  104  Me.  39:  Philadelphia  R.  Co.  v.  Hogeland,  66  Md. 
149;  United  Railways  v.  Biedler,  98  Md.  564;  Randolph  v.  O'Riordan,  155  Mass. 
331 :  McKeman  v.  Detroit  R.  Co.,  138  Mich.  519;  FoUman  v.  City,  35  Minn.  522; 
Dickson  v.  Missouri  R.  Co.,  104  Mo.  491;  Petersen  v.  St.  Louis  Transit  Co.,  199 
Mo.  331;  Farrar  v.  Metropolitan  R.  Co.,  249  Mo.  210;  Loso  v.  County,  77  Neb. 
466;  Noyes  v.  Town,  64  N.  H.  361 ;  Noonan  v.  Consolidated  Traction  Co.,  64  N.  J. 
Law,  579;  Dyer  v.  Erie  R.  Co.,  71  N.  Y.  228;  Geary  v.  Metropolitan  R.  Co.,  84 
App.  Div.  514;  Robinson  v.  Metropolitan  R.  Co.,  91  App.  Div.  158;  Ward  v. 
Brooklyn  R.  Co.,  119  App.  Div.  487;  Morris  v.  Metropolitan  R.  Co.,  63  App.  Div. 
78;  TerwilUger  v.  Long  Island  R.  Co.,  152  App.  Div.  168;  Kammerdiener  v. 
Raybum,  233  Pa.  St.  328;  Sieb  v.  Central  Traction  Co.,  47  Pa.  Super.  Ct.  228; 
Wilson  V.  Puget  Sound  R.  Co.,  52  Wash.  522  Accord. 

See  McLaughlin  v.  Pittsburgh  R.  Co.,  252  Pa.  St.  32. 

»  Davis  V.  Chicago  R.  Co.,  (C.  C.  A.)  159  Fed.  10:  Rebillard  v.  MinneapoUs  R. 
Co.,  216  Fed.  503;  Ewans  v.  Wilmington  R.  Co.,  7  Pennewill  458;  Brannen  v. 
Kokomo  Road  Co.,  115  Ind.  115;  Holden  v.  Missouri  R.  Co.,  177  Mo.  456;  Brickell 
V.  New  York  R.  Co.,  120  N.  Y.  290;  Caminez  v.  Brooklyn  R.  Co.,  127  App.  Div. 
138;  Doctoroflf  v.  Metropolitan  R.  Co.,  55  Misc.  215;  Southern  R.  Co.  v.  Jones, 
118  Va.  685;  Wilson  v.  Puget  Sound  R.  Co.,  52  Wash.  522;  Warth  v.  Jackson 
County  Court,  71  W.  Va.  184  Accord. 

See  Atlantic  R.  Co.  v.  Ironmonger,  95  Va.  625. 


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SECT.  Vin.]      SHULTZ  V.  OLD  COLONY  ST.  RAILWAY  CO.  361 

lance  and  care  of  the  driver.*  She  cannot  hide  behind  the  fact  that 
another  is  driving  the  vehicle  in  which  she  is  riding,  and  thus  relieve 
herself  of  her  own  negligence.  What  degree  of  care  she  should  have 
exercised,  in  accepting  the  invitation  to  ride,  or  in  observing  and  call- 
ing to  the  attention  of  the  driver  perils  unnoticed  by  him,  depends 
upon  the  circumstances  at  the  time  of  the  injury.  On  the  other  hand, 
she  would  be  permitted  to  recover  if,  in  entering  and  continuing  in 
the  conveyance,  she  acted  with  reasonable  caution,  and  had  no  ground 
to  suspect  incompetency  and  no  cause  to  anticipate  negUgence  on  the 
part  of  the  driver,  and  if  the  impending  danger,  although  in  part  pro- 
duced by  the  driver,  was  so.  sudden  or  of  such  a  character  as  not  to 
permit  or  require  her  to  do  any  act  for  her  own  protection. 

In  view  of  the  facts  of  the  case  the  requests  for  rulings  presented 
by  the  plaintiff  were  not  correct  propositions  of  law  and  were  properly 
refused,  but  the  portion  of  the  charge  excepted  to  failed  to  express 
with  accuracy  and  fulness  the  rights  of  the  plaintiff  and  the  liability 
of  the  defendant  to  her.  The  jury  were  instructed  to  treat  the  plain- 
tiff as  identified  with  the  driver,  and  burdened  with  his  negligence. 
For  the  reasons  we  have  stated  and  imder  the  circumstances  disclosed, 
this  was  not  an  accurate  statement  of  the  law. 

Exceptions  sustained.^ 

*  City  V,  Thuis,  28  Ind.  App.  523;  Bush  v.  Union  R.  Co.,  62  Kan.  709;  Yamold 
If.  Bowers,  186  Mass.  396;  Peabody  v.  Haverhill  R.  Co.,  200  Mass.  277:  Lundergan 
V.  New  York  R.  Co.,  203  Mass.  460;  Fogg  v.  New  York  R.  Co..  223  Mass.  444; 
Marsh  v.  Kansas  City  R.  Co.,  104  Mo.  App.  577;  Meenagh  v,  BucKmaster,  26  App. 
Div.  451;  Cunningham  v,  Erie  R.  Co.,  137  App.  Diy.  506  Accord. 

Driver  knoum  to  he  incompeterUj  see:  Cahill  v,  Cincinnati  R.  Co.,  92  Ky.  345. 
Passenger  unknown  to  driver ,  see:  Cincinnati  R.  Co.  v,  Wright,  54  Ohio  St.  181. 

*  Pyle  V.  Clark,  (C.  C.  A.)  79  Fed.  744;  Dale  v,  Denver  Tramway  Co.,  (C.  C.  A.) 
173  Fed.  787;  North  Alabama  Traction  Co.  v,  Thomas,  164  Ala.  191 :  laninger  v. 
San  Francisco  R.  Co.,  18  Cal.  Add.  411;  Tonsley  v.  Pacific  Electric  Co.,  166  Cal. 
457;  Parmenter  v.  McDougall,  172  Cal.  306;  Denver  Tramway  Co.  v.  Armstrong, 
21  Col.  App.  640;  Sampson  v.  Wilson,  89  Conn.  707;  Metropolitan  R.  Co.  v. 
Powell,  89  Ga.  601;  Southern  R.  Co.  t>.  Kine,  128  Ga.  383:  Chicago  R.  Co.  v. 
Condon,  121  111.  App.  440:  Dudley  r.  Peoria  R.  Co.,  153  111.  App.  619;  Town 
v.  Musgrove,  116  Ind:  121;  Lake  Shore  R.  Co.  v.  Boyts,  16  Ind.  App.  640;  Nisbet 
V.  Town,  75  la.  314;  Hubbard  v.  Bartholomew,  163  la.  58;  Corley  v.  Atchison  R. 
Co.,  90  Kan.  70;  Bevis  v,  Vanceburg  Tel.  Co.,  121  Ky.  177;  Illinois  R.  Co.  v.  Wil- 
kins,  149  Ky.  35;  Sykes  v,  Maine  R.  Co.,  Ill  Me.  182;  United  R.  Co.  v.  Cram,  123 
Md.  332;  Chadboume  v.  Springfield  R.  Co.,  199  Mass.  574;  Ingalls  v.  Lexington 
R.  Co.,  205  Mass.  73;  Alabama  R.  Co.  v.  Davis.  69  Miss.  444;  Mittelsdorfer  v. 
West  Jersey  R.  Co.,  77  N.  J.  Law,  698;  Weber  v.  Philadelphia  R.  Co.,  88  N.  J.  Law, 
398;  Robinson  v.  New  York  R.  Co.,  66  N.  Y.  11 ;  Noakes  v.  New  York  R.  Co.,  121 
App.  Div.  716;  Zimmerman  v.  Union  R.  Co.,  28  App.  Div.  445;  Mack  v.  Town,  98 
App.  Div.  577;  Jerome  v.  Hawley,  147  App.  Div.  475;  Duval  v.  Atlantic  R.  Co.,  ^ 
134  N.  C.  331;  Ouverson  v.  City,  5  N.  D.  281;  Toledo  R.  Co.  v.  Mayers,  93  Ohio 
St.  304;  Tonseth  v.  Portland  R.  Co.,  70  Or.  341 ;  Little  v.  Central  Tel.  Co.,  213  Pa. 
St.  229;  Walsh  v.  Altoona  R.  Co.,  232  Pa.  St.  479:  Wachsmith  v.  Baltimore  R.  Co., 
233  Pa.  St.  465:  Trumbower  v,  Lehigh  Transit  Co.,  235  Pa.  St.  397;  Hermann  v, 
Rhode  Island  Co.,  36  R.  I.  447;  Latimer  v.  County,  95  S.  C.  187;  Turnpike  Co.  v, 
Yates,  108  Tenn.  428;  Missouri  R.  Co.  v,  Rogers,  91  Tex.  52;  Lochheacl  v,  Jensen, 
42  Utah  99;  Atwood  v.  Utah  R.  Co.,  44  Utah  366  Accord. 

'  Kneeshaw  v.  Detroit  R.  Co.,  169  Mich.  697;  Colbome  v.  United  R.  Co.,  177 
Mich.  139;  Granger  v.  Farrant,  179  Mich.  19  (but  compare  Hanopel  v.  Detroit  R. 
Co.,  138  Mich.  1);  Whittaker  v.  City,  14  Mont.  124;  Omaha  R.  Co.  v.  Talbot, 


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362  KOPLITZ  V.  CITY  OF  ST.  PAUL  [CHAP.  II. 

KOPLITZ  V.  CITY  OF  ST.  PAUL 
Supreme  Court,  Minnesota,  June  6, 1902. 
Reported  in  86  Minnesota  Reports,  373. 
AcrnoN  in  the  District  Court  for  Ramsey  County  to  recover  $2040 
for  personal  injuries  caused  by  a  defective  street  in  defendant  city. 
The  case  was  tried  before  Brill,  J.,  and  a  jury,  which  rendered  a  gen- 
eral verdict  in  favor  of  plaintiifif  for  $300.    The  jury  also  returned  a 
special  verdict,  in  answer  to  the  specific  question  submitted  by  the 
court,  that  the  driver  of  the  vehicle  from  which  plaintiff  was  thrown 
was  guilty  of  negligence  which  contributed  to  the  injury.    From  a 
judgment  entered  piumiant  to  the  general  verdict,  defendant  appealed. 

48  Neb.  627;  Prideaux  v.  City,  43  Wis.  513;  Otis  v.  Town,  47  Wis.  422;  Ritger  v. 
City,  99  Wis.  190;  Lightfoot  v.  Winnebago  Traction  Co.,  123  Wis.  479;  Lauson  v. 
Town,  141  Wis.  67  Contra. 

As  to  whether  the  negligence  of  an  asent  or  servant  will  be  imputed  to  a  prin- 
cipal or  employer  not  personally  culpable,  see  also:  Siegel  v.  Norton,  209  HI.  201; 
Moore  v.  Stetson,  96  Me.  197;  Bjbjian  v,  Woonsocket  Rubber  Co.,  164  Mass.  214; 
PhiUp  V.  Heraty,  136  Mich.  446;  Fero  v,  Buffalo  R.  Co.,  22  N.  Y.  209. 

ContrUnUory  negligence  of  agent  or  servant  in  sole  charge  of  the  property  injured, 
see:  Kennedy  v,  Alton  Traction  Co.,  180  HI.  App.  146;  Toledo  R.  Co.  v,  Goddard, 
25  Ind.  186;  Louisville  R.  Co.  v.  Stommel,  126  Ind.  36;  Young  v.  County,  137  la. 
616;  Dunn  v.  Old  Colony  R.  Co^  186  Mass.  316;  La  Riviere  v,  Pemberton,  46 
Minn.  5;  Johnson  v.  Atchison  R.  Co.,  117  Mo.  App.  308;  Page  v,  Hodge,  63  N.  H. 
610;  Smith  v.  New  York  R.  Co.,  4  App.  Div.  493;  Puterbaugh  t>.  Reasor,  9  Ohio 
St.  484;  Hawley  v,  Sumpter  R.  Co.,  49  Or.  609.  Compare  Gress  v,  Philadelphia 
R.  Co.,  228  Pa.  St.  482  (care  of  injured  child  delegated  to  another  child,  whose 
negligence  contributed). 

As  to  when  negligence  of  the  servant  is  imputed  to  the  master,  see  also:  Sims  v, 
Macon  R.  Co.,  28  Ga.  93  (slave);  Read  v.  City,  116  Ga.  366;  Potter  v.  Ft.  Wayne 
Traction  Co.,  43  Ind.  App.  427:  City  v.  Bott,  161  Ky.  678;  Markowitz  v.  Metro- 
poUtan  R.  Co.,  186  Mo.  360;  Moon  v,  St.  Louis  Transit  Co.,  237  Mo.  426;  Reed  v. 
Metropolitan  R.  Co.,  68  App.  Div.  87;  Wood  v.  Coney  Island  R.  Co.,  133  App. 
Div.  270;  Crampton  v.  I  vie,  126  N.  C.  894.  Compare  Snyder  Ice  Co.  v,  Bowron, 
(Tex.  Civ.  App.)  166  S.  W.  660. 

Whether  husband's  negligence  will  he  imputed  to  the  wife,  see :  McFadden  v.  Santa 
Ana  R.  Co.,  87  Cal.  464;  Basler  v.  Sacramento  Gas  Co.,  168  Cal.  614;  Joliet  v. 
Seward,  86  111.  402;  Yahn  v.  Ottumwa,  60  la.  429  (see  also  Nesbit  v.  Gamer,  76  la. 
314;  Willfong  v,  Omaha  R.  Co.,  116  la.  648);  Denton  v.  Missouri  R.  Co.,  90  Kan. 
61;  Livinraton  v.  Philley,  166  Ky.  224;  Ploetz  v.  Holt,  124  Minn.  169;  Moon  v. 
St.  Louis  Transit  Co..  237  Mo.  426;  Johnson  v.  Sprinrfeld  Traction  Co^  176 
Mo.  App.  174;  Hajsek  v.  Chicago  R.  Co.,  68  Neb.  639,  6  Neb.  Unofif.  67;  Penn- 
sylvania R.  Co.  V,  Goodenough,  55  N.  J.  Law,  577;  Horandt  v.  Central  R.  Co.,  78 
N.  J.  Law,  190;  Carlisle  v.  Sheldon,  38  Vt.  440. 

Imputed  negligence  as  between  feUow  servants,  see:  Nonn  v.  Chicago  R.  Co^  232 
Dl.  378:  Ford  v.  Hine,  237  Dl.  463;  Paducah  Traction  Co.  v.  Sine,  (Ky.)  Ill  S.  W. 
366;  CSty  v.  Heitkemper,  169  Ky.  167;  Earp  v,  Phelps,  120  Md.  282;  Siever 
V.  Pittsburgh  R.  Co.,  252  Pa.  St.  1;  Landry  v.  Great  Northern  R.  Co..  152  Wis. 
379;  Sommerfeld  v.  Chicago  R.  Co.,  156  Wis.  102. 

Whether  bailor  barred  by  contr^mtory  negligence  of  bailee,  see:  Svea  Ins.  Co.  v, 
Vicksburrfi  R.  Co.,  163  Fed.  774;  Henderson  v.  Chicago  R.  Co^  170  111.  App.  616; 
Welty  v.  Indianapolis  R.  Co.,  106  Ind.  66;  Illinois  R.  Co.  v.  Sims,  77  Miss.  326; 
Spehnan  v,  Delano,  177  Mo.  App.  28;  Forks  Township  v.  King,  84  Pa.  St.  230; 
Gfibson  v,  Bessemer  R.  Co.,  226  Pa.  St.  198;  Texas  R.  tk).  v.  Tankersley,  63  Tex. 
67. 

Consignor  and  consignee^  see  McCarthy  v,  LouisviHe  R.  Co»  102  Ala.  193. 

Lessor  and  lessee,  see  Higgins  v,  Los  Ajigeles  Gas  Co.,  169  Cal.  661;  Contos  v, 
Jamison,  81  S.  C.  488. 


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SECT.  Vin.]  KOPLITZ  V.  CITY  OF  ST.  PAUL  363 

Stabt,  C.  J.  The  plaintiff  was  one  of  a  party  of  twenty-eix  young 
people  who  celebrated  the  Fourth  of  July  last  by  a  picnic  at  Lake 
Johanna,  about  twelve  miles  from  St.  Paul.  The  picnic  was  a  mutual 
afifair,  in  that  the  party  consisted  of  about  an  equal  nimiber  of  yoimg 
men  and  young  women,  each  lady  being  invited  and  escorted  by  a 
gentleman,  for  whom  and  herself  she  furnished  lunch;  but  at  meal 
time  the  several  lunches  were  merged,  and  became  a  common  spread. 
The  ladies  had  nothing  to  do  with  the  matter  of  the  transportation 
of  the  party  to  and  from  the  lake.  This  was  the  exclusive  business 
of  the  gentlemen,  with  which  the  ladies  had  no  more  to  do  than  the 
young  men  had  with  the  limches.  The  gentlemen  selected  one  of  their 
nimiber  (Mr.  Gibbons)  to  manage  the  transportation  of  the  party. 
He  hired  for  this  purpose  a  long  covered  omnibus,  drawn  by  four 
horses,  and  a  driver  and  assistant,  to  drive  the  party  to  the  lake  and 
return.  The  party  were  driven  to  and  from  the  lake  in  this  convey- 
ance, with  the  hiring  of  which,  or  the  pajmaent  therefor,  or  the  control 
thereof,  the  ladies,  inpluding  the  plaintiff^  had  nothing  to  do,  other 
than  may  be  inferred,  if  at  all,  from  the  fact  that  they  were  members 
of  the  picnic  party.  On  the  return  trip,  when  the  convejrance  had 
reached  Dale  Street,  in  the  city  of  St.  Paul,  it  was  tipped  over,  by 
reason  of  an  embankment  therein,  whereby  the  plaintiff  was  injured. 

At  the  time  of  the  accident  all  of  the  party  were  riding  inside  of 
the  omnibus,  except  Mr.  Gibbons,  who  was  outside,  on  the  driver's 
seat,  with  the  driver  and  his  assistant,  and  was  then  driving  the 
horses;  but  this  fact  was  unknown  to  the  plaintiff  or  any  of  the  party 
inside  of  the  Ttonveyance.  The  negligence  of  the  city  in  the  care  of 
the  street  was  the  proximate  cause  of  the  plaintiff's  injury,  but  the 
negligence  of  Mr.  Gibbons  in  driving  the  horses  contributed  thereto. 
The  plaintiff  was  personally  free  from  any  negligence  in  the  premises. 
This  action  was  brought  by  the  plaintiff  to  recover  damages  on  ac- 
count of  such  injuriesy  and  the  jury  returned  a  verdict  for  $300,  and  a 
sp)ecial  verdict  that  Mr.  Gibbons  was  guilty  of  contributory  negligence 
in  driving  the  conveyance.  Thereupon  the  defendant  moved  for  judg- 
ment in  its  favor  upon  the  special  verdict,  notwithstanding  the  general 
verdict  for  the  plaintiff.  The  motion  was  denied,  and  judgment 
entered  for  the  plaintiff,  from  which  the  defendant  appealed  to  this 
court. 

The  only  question  for  our  decision  is  whether  the  negligence  of 
Mr.  Gibbotis  must  be  imputed  to  the  plaintiff,  and  a  recovery  denied 
her  for  that  reason.  The  rule  as  to  imputed  negligence,  as  settled  by 
this  court  in  cases  other  than  those  where  the  parties  stand  in  the  re- 
lation of  parent  and  child  or  guardian  and  ward,  i§  that  negligence  in 
the  conduct  of  another  will  not  be  imputed  to  a  party  if  he  neither 
authorized  such  conduct,  nor  participated  therein,  nor  had  the  right 
or  power  to  control  it.  If,  however,  two  or  more  persons  imite  in  the 
joint  prosecution  of  a  common  purpose  imder  such  circumstances  that 


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364  FECHLEY  V.  SPRINGFIELD  TRACTION  CO.  [CHAP.  II. 

each  has  authority,  expressed  or  impUed,  to  act  for  all  in  respect  to 
the  control  of  the  means  or  agencies  employed  to  execute  such  com- 
mon purpose,  the  negligence  of  one  in  the  management  thereof  will  be 
imputed  to  all  the  others.  Follman  v.  City  of  Mankato,  35  Minn.  622, 
29  N.  W.  317;  Flaherty  v.  Minneapolis  &  St.  L.  Ry.  Co.,  39  Minn.  328, 
40  N.  W.  160;  Howe  v.  Minneapolis,  St.  P.  &  S.  Ste.  M.  Ry.  Co.,  62 
Minn.  71,  64  N.  W.  102;  Johnson  v.  St.  Paul  City  Ry.  Co.,  67  Minn. 
260,  69  N.  W.  900;  Finley  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  71  Minn., 
471,  74  N.  W.  174;  Wosika  v.  St,  Paul  City  Ry.  Co.,  80  Minn.  364, 
83  N.  W.  386;  Lammers  v.  Great  Northern  Ry.  Co.,  82  Minn.  120,  84 
N.  W.  728. 

It  is  too  obvious  to  justify  discussion  that  the  plaintiff  in  this  case 
neither  expressly  nor  impliedly  had  any  control  over  the  drivers  of 
the  omnibus,  or  either  of  them,  or  of  Mr.  Gibbons,  and  that  he  and  she 
were  not  engaged  in  a  joint  enterprise  in  any  such  sense  as  made  her 
so  far  responsible  for  hia  negligence  in  driving  the  horses  that  it  must 
be  imputed  to  her.  The  claim  of  the  defendant  to  the  contrary  is 
unsupported  by  the  facts  as  disclosed  by  the  record. 

Judgment  affirmed.^ 


FECHLEY  V.  SPRINGFIELD  TRACTION  COMPANY 

St.  Louis  Coubt  of  Appeals,  Missouri,  May  8, 1906. 

Reported  in  119  Miasann  Appeal  Reports,  358. 

Error  to  Circuit  Court,  Greene  County.  Verdict  and  judgment 
for  defendant.    Plaintiff  appeals. 

Appellant,  Fechley,  was  damaged  by  the  collision  of  a  street  car 
with  a  one-horse  buggy  in  which  he  was  riding.  The  buggy  was  owned 
and  driven  by  Pierce,  at  whose  invitation  Fechley  was  riding.  Pierce, 
upon  his  own  statement,  was  negligent  in  not  seasonably  looking,  or 
taking  proper  precautions,  to  ascertain  if  a  car  was  approaching  before 
he  attempted  to  drive  across  two  parallel  railway  tracks.  The  facts 
as  to  the  alleged  negligence  of  Fechley  are  sufficiently  stated  in  the 
extracts  from  the  opinion,  given  below. 

One  error  assigned  was  the  submission  to  the  jury  of  the  issue  of 
appellant's  contributory  negligence.* 

*  See  Alabama  R.  Co.  v.  Hanbury,  161  Ala.  358;  Louisville  R.  Co.  v.  Armstrong, 
127  Ky.  367;  Beaucage  v.  Mercer,  206  Mass.  492:  Ward  v.  Meads,  114  Mimi.  18; 
Schron  v.  Staten  Island  R.  Co.,  16  App.  Div.  11 ;  Christopherson  v.  Minneapolis  R. 
Co.,  28  N.  D.  128;  Wentworth  v.  Town,  90  Vt.  60;  Washington  R.  Co.  v.  Zell, 
118  Va.  755. 

According  to  the  decision  in  Shindelus  v.  St.  Paul  City  R.  Co..  80  Minn.  364,  if 
any  of  the  young  men  of  the  party  in  the  KopUtz  case  had  sued  the  city,  the  negli- 
gence of  Gibbons  would  have  been  imputed  to  them. 

Compare  Laurence  v.  Sioux  City,  172  la.  320;  Scheib  v.  New  York  R.  Co.,  115 
App.  EHv.  578;  Kansas  City  R.  Co.  v.  Durrett,  (Tex.  Civ.  App.)  187  S.  W.  427. 

*  Statement  abridged.    Arguments  omitted;  also  portions  of  opinion. 


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SECT.  VIII.]  FECHLEY  V.  SPRINGFIELD  TRACTION  CO.  365 

GooDE,  J.  [After  stating  the  case;  and  holding  that  the  negli- 
gence of  Pierce  would  not  bar  Fechley  from  recovering  against  the 
company  if  the  motorman's  negligence  was  in  part  the  proximate 
cause  of  the  collision.] 

Appellant  himself  must  have  been  free  from  negligence  proximately 
contributing  to  his  injury  or  he  is  entitled  to  no  damages,  granting 
that  Pierce's  fault  does  not  preclude  a  recovery  and  that  the  motor- 
man's  fault  was  a  factor  in  bringing  about  the  casualty.  Few,  if  any, 
courts  have  held  that  an  occupant  of  a  vehicle  may  entrust  his  safety 
absolutely  to-  the  driver  of  a  vehicle,  regardless  of  the  imminence 
of  danger  or  the  visible  lack  of  ordinary  caution  on  the  part  of  the 
driver  to  avoid  harm.  The  law  in  this  state,  and  in  most  jurisdic- 
tions, is  that  if  a  passenger  whc^  is  aware  of  the  danger  and  that  the 
driver  is  remiss  in  guarding  against  it,  takes  no  care  himself  to  avoid 
injury,  he  cannot  recover  for  one  he  receives.  This  is  the  law  not 
because  the  driver's  negligence  is  imputable  to  the  passenger,  but 
because  the  latter's  own  negligence  proximately  contributed  to  his 
damage.  Marsh  v.  Raiboad,  104  Mo.  App.  577,  78  S.  W.  284;  Dean 
r.  Railroad,  129  Pa.  St.  514;  Township  of  Crescent  v,  Anderson,  114 
Pa.  St.  643;  Koehler  v.  Railroad,  66  Hun,  566;  Hoag  v.  Railroad, 
111  N.  Y.  179;  BrickeU  v.  Raihx)ad,  120  N.  Y.  290;  2  Thompson, 
Negligence,  sec.  1620;  Beach,  Con.  Neg.,  sec.  115;  3  Elliott,  Rail- 
roads, sec.  1174. 

[After  discussing  the  pleadings.] 

Therefore  the  question  occurs  whether,  on  the  testimony  for  appel- 
lant, the  court  would  have  been  justified  in  holding  him  guilty  of  con- 
tributory negligence;  and  we  hold  that  such  a  ruling  would  have  been 
proper.  Appellant  swore  he  knew  cars  were  operated  east  and  west 
on  Commercial  Street,  but  did  not  know  there  were  double  tracks  on 
it.  The  two  tracks  were  right  before  his  eyes  as  he  drove  down  Com- 
mercial Street  and  as  Pierce  turned  the  horse  to  cross  them.  He  said 
he  could  have  looked  out  of  the  buggy  by  merely  pushing  the  curtain 
back  with  his  hand.  He  was  not  bound  to  do  this  if  Pierce's  conduct 
was  of  such  a  character  as  to  induce  a  reasonably  prudent  man  to  think 
there  was  no  danger  in  driving  across  the  tracks.  But  Fechley  did 
not  have  the  right  to  rely  on  the  precaution  taken  by  Pierce,  unless, 
under  the  circiunstances,  a  man  of  ordinary  prudence  would  have  re- 
lied on  it.  As  we  have  pointed  out,  the  testimony  shows  Pierce  took 
no  precaution  which  could  be  effective.  He  did  not  stop  at  all;  nor 
did  he  look  for  a  car  until  the  horse  was  stepping  over  the  south  rail 
of  the  north  track.  The  two  tracks  were  less  than  five  feet  apart  and 
the  buggy  moved  but  a  few  feet  after  Pierce  looked,  before  the  car 
struck  it  near  the  front  of  the  rear  wheels.  Meanwhile  Fechley  was 
leaning  back  in  the  buggy,  though  he  must  have  seen  they  had  crossed 
the  south  track  and  were  advancing  diagonally  on  the  north  one,  and, 
if  he  was  paying  any  attention  to  the  situation,  must  have  known  that 


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366  NEWMAN  V.  PHILLIPSBUBG  HORSE  CAR  CO.         [CHAP.  II. 

a  car  was  likely  to  come  along  on  that  track  from  the  east.  Pierce's 
behavior  was  so  grossly  careless,  that  Fechley  was  imprudent  in  doing 
nothing  personally  to  insure  his  safety.  The  essential  fact  is  that 
Pierce  did  not  look  in  time,  as  Fechley  knew,  or,  in  reason,  ought  to 
have  known.  Therefore  Fechley  should  have  stopped  Pierce  or  told 
him  to  look  for  a  car,  or  have  looked  himself,  before  they  had  ad- 
vanced so  far  into  danger.  It  is  palpable  from  appellant's  own  testi- 
mony that  he  was  giving  no  heed  to  his  safety,  but  either  was  relying 
blindly  on  Pierce,  or,  for  some  reason,  was  not  aware  of  the  proximity 
of  the  tracks. 

[After  stating  authorities.] 

On  the  testimony  for  appellant  the  case  strikes  us  as  one  of  concur- 
rent negligence;  for  the  buggy  had  not  gone  more  than  from  six  to 
twelve  feet  after  Pierce  looked  for  a  car,  until  the  collision  occurred. 
There  is  an  inconsistency  in  appellant's  theory.  He  would  have  it 
that  there  was  an  appearance  of  danger  of  a  collision  which  should 
have  warned  the  motorman,  as  soon  as  the  buggy  was  turned  to  go 
over  the  tracks  and  before  Pierce  looked  for  a  car,  but  that  appellant 
himself  was  not  negligent  in  failing  to  guard  against  this  apparent 
danger.  That  argument  for  appellant  emphasizes  and  makes  clear  his 
own  carelessness.  The  counsel  in  the  case  give  several  close  calcula- 
tions in  support  of  their  respective  theories,  and  appellant's  attorneys 
endeavor  to  demonstrate  that  the  motorman  could  have  stopped  the 
car  before  it  reached  the  buggy,  if  he  had  begun  to  get  control  of  it 
when  the  horse  turned  to  go  over  the  south  track.  They  insist  that 
appellant,  though  he  may  have  been  guilty  of  contributory  negligence, 
was  entitled  to  a  finding  by  the  jury,  under  proper  instructions,  on  the 
issue  of  whether  or  not  the  motorman  could  have  prevented  the  acci- 
dent after  the  turn,  it  being  assumed  that  the  danger  of  a  collision 
then  became  apparent.  The  court  submitted  that  issue  by  a  charge 
which  was  extremely  favorable  to  appellant. 

[Omitting  remainder  of  opinion.]  Judgment  affirmed. 


NEWMAN  V.  PHILLIPSBURG  HORSE  CAR  COMPANY 

Supreme  Court,  New  Jersey,  July  Term,  1890. 

Reported  in  52  New  Jersey  Law  Reports,  446. 

The  plaintiff  was  a  child  two  years  of  age;  she  was  in  the  custody 
of  her  sister,  who  was  twenty-two;  the  former,  being  left  by  herself 
for  a  few  minutes,  got  upon  the  railroad  track  of  the  defendant,  and 
was  hurt  by  the  car.  The  occurrence  took  place  in  a  public  street  of 
the  village  of  Phillipsburg.  The  carelessness  of  the  defendant  was 
manifest,  as  at  the  time  of  the  accident  there  was  no  one  in  charge  of 
the  horse  drawing  the  car,  the  driver  being  in  the  car  collecting  fares. 


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SECT.  Vni.]  NEWMAN  V.  PHILLIPSBURG  HORSE  CAR  CO.      367 

The  Circuit  judge  submitted  the  three  following  propositions  to 
this  Court  for  its  advisory  opinion,  viz. :  — 

First.  Whether  the  negligence  of  the  persons  in  charge  of  the 
plaintiff,  an  infant  minor,  should  be  imputed  to  the  said  plaintiff. 

Second.  Whether  the  conduct  of  the  persons  in  charge  of  the  plain- 
tiff at  the  time  of  the  injury  complained  of,  was  not  so  demonstrably 
negUgent  that  the  said  Circuit  Court  should  have  nonsuited  the  plain- 
tiff, or  that  the  Court  should  have  directed  the  jury  to  find  for  the 
defendant. 

Third.  Whether  a  new  trial  ought  not  to  be  granted,  on  the  ground 
that  the  damag^  awarded  are  excessive. 

Argued  at  Febniary  term,  1890,  before  Beasley,  C.  J.,  and  Scud- 
DER,  Dixon  and  Reed,  JJ. 

The  opinion  of  the  court  was  deUvered  by  — 

Beaslet,  C.J.  There  is  but  a  single  question  presented  by  this  case, 
and  that  question  plainly  stands  among  the  vexed  questions  of  the  law. 

The  problem  is,  whether  an  infant  of  tender  years  can  be  vicari- 
ously negligent,  so  as  to  deprive  \tself  of  a  remedy  that  it  would 
otherwise  be  entitled  to.  In  some  of  the  American  states  this  question 
has  been  answered  by  the  Courts  in  the  aflSrmative,  and  in  others  in 
the  n^ative.  To  the  former  of  these  classes  belongs  the  decision  in 
Hartfield  v.  Roper  &  Newell,  reported  in  21  Wend.  615.  This  case 
appears  to  have  been  one  of  first  impression  on  this  subject,  and  it  is 
to  be  regarded,  not  only  as  the  precursor,  but  as  the  parent  of  all  the 
cases  of  the  same  strain  that  have  since  appeared. 

The  inquiry  with  respect  to  the  effect  of  the  negligence  of  the  cus- 
todian of  the  infant,  too  young  to  be  intelligent  of  situations  and  cir- 
cumstances, was  directly  presented  for  decision  in  the  primary  case 
thus  referred  to,  for  the  facts  were  these:  The  plamtiff,  a  child  of 
abou|;  two  years  of  age,  was  standing  or  sitting  in  the  snow  in  a  pub- 
lic road,  and  in  that  situation  was  run  over  by  a  sleigh  driven  by  the 
defendants.  The  opinion  of  the  Court  was,  that  as  the  child  was  per- 
mitted by  its  custodian  to  wander  into  a  position  of  such  danger  it  was 
without  remedy  for  the  hurts  thus  received,  imless  they  were  volim- 
tarily  inflicted,  or  were  the  product  of  gross  carelessness  on  the  part  of 
the  defendants.  It  is  obvious  that  the  judicial  theory  was,  that  the 
infant  was,  through  the  medium  of  its  custodian,  the  doer,  in  part,  of 
its  own  misfortune,  and  t;hat,  consequently,  by  force  of  the  well-known 
rule,  under  such  conditions,  he  had  no  right  to  an  action.  This,  of 
course,  was  visiting  the  child  for  the  neglect  of  the  custodian,  and 
such  infliction  is  justified  in  the  case  cited  in  this  wise:  "  The  in- 
fant," says  the  Court,  "  is  not  sui  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;  in  respect  to  third 
persons  his  act  must  be  deemed  that  of  the  infant;  his  neglects  the 
infant's  n^ects." 


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368  NEWMAN  V.  PHILLIPSBUKG  HORSE  CAB  CO.        [CHAP.  II. 

It  will  be  observed  that  the  entire  content  of  this  quotation  is  the 
statement  of  a  single  fact,  and  a  deduction  from  it;  the  premise  being, 
that  the  child  must  be  in  the  care  and  charge  of  an  adult,  and  the  in- 
ference being  that,  for  that  reason,  the  neglects  of  the  adult  are  the 
n^lects  of  the  infant.  But  surely  this  is,  conspicuously,  a  non  sequi- 
tur.  How  does  the  custody  of  the  infant  justify,  or  lead  to,  th^  impu- 
tation of  another^s  fault  to  him  ?  The  law,  natural  and  civil,  puts 
the  infant  under  the  care  of  the  adult,  but  how  can  this  right  to  care 
for  and  protect  be  construed  into  a  right  to  waive,  or  forfeit,  any  of  the 
legal  ri^ts  of  the  infant  ?  The  capacity  to  make  such  waiver  or  for- 
feiture is  not  a  necessary,  or  even  convenient,  incident  of  this  office  of 
the  adult,  but,  on  the  contrary,  is  quite  inconsistent  with  it,  for  the 
power  to  protect  is  the  opposite  of  the  power  to  harm,  either  by  act 
or  omission.  In  this  case  in  Wendell  it  is  evident  that  the  rule  of  law 
enunciated  by  it  is  founded  in  the  theory  that  the  custodian  of  the  in- 
fant is  the  agent  of  the  infant;  but  this  is  a  mere  assumption  without 
legal  basis,  for  such  custodian  is  the  agent,  not  of  the  infant,  but  of 
the  law.  If  such  supposed  agency  existed,  it  would  embrace  many  in- 
terests of  the  infant,  and  could  not  be  confined  to  the  single  instance 
where  an  injury  is  inflicted  by  the  cooperative  tort  of  the  guardian. 
And  yet  it  seems  certain  that  such  custodian  cannot  surrender  or  im- 
pair a  single  right  of  any  kind  that  is  vested  in  the  child,  nor  impose 
any  legal  burthen  upon  it.  If  a  mother  travelling  with  her  child  in 
her  arms  should  agree  with  a  railway  company,  that  in  case  of  an 
accident  to  such  infant  by  reason  of  the  joint  negligence  of  herself 
and  the  company  the  latter  should  not  be  liable  to  a  suit  by  the  child, 
such  an  engagement  would  be  plainly  invalid  on  two  grounds:  first, 
the  contract  would  be  contra  bonos  mores,  and  second,  because  the 
mother  was  not  the  agent  of  the  child  authorized  to  enter  into  the 
agreement.  Nevertheless,  the  position  has  been  deemed  defensible 
that  the  same  evil  consequences  to  the  infant  will  follow  from  the 
negligence  of  the  mother,  in  the  absence  of  such  supposed  contract,  as 
would  have  resulted  if  such  contract  should  have  been  made  and 
should  have  been  held  valid. 

In  fact,  this  doctrine  of  the  imputability  of  the  misfeasance  of  the 
keeper  of  a  child  to  the  child  itself,  is  deemed  to  be  a  pure  interpola- 
tion into  the  law^  for  until  the  case  under  criticism  it  was  absolutely 
unknown;  nor  is  it  sustained  by  legal  analogies.  Infants  have  always 
been  the  particular  objects  of  the  favor  and  protection  of  the  law.  In 
the  language  of  an  ancient  authority  thife  doctrine  is  thus  expressed: 
"  The  common  principle  is,  that  an  infant  in  all  things  which  sound 
in  his  benefit  shall  have  favor  and  preferment  in  law  as  well  as  another 
man,  but  shall  not  be  prejudiced  by  anything  in  his  disadvantage." 
9  Vin.  Abr.  374.  And  it  would  appear  to  be  plain  that  nothing  could 
be  more  to  the  prejudice  of  an  infant  than  to  convert,  by  construction 
of  law,  the  connection  between  himself  and  his  custodian  into  an 


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SECT.  VIII.]  NEWMAN  V.  PHILLIPSBURG  HORSE  CAR  CO.      369 

agency  to  which  the  harsh  rule  of  respondeat  superior  should  be  ap- 
plicable. The  answerableness  of  the  principal  for  the  authorized  acts 
of  his  agent  is  not  so  much  the  dictate  of  natural  justice  as  of  public 
poUcy,  and  has  arisen,  with  some  propriety,  from  the  circumstances, 
that  the  creation  of  the  agency  is  a  voluntary  act,  and  that  it  can  be 
controlled  and  ended  at  the  will  of  its  creator.  But  in  the  relation- 
ship between  the  infant  and  its  keeper,  all  these  decisive  characteris- 
tics are  wholly  wanting.  The  law  imposes  the  keeper  upon  the  child 
who,  of  course,  can  neither  control  or  remove  him,  and  the  injustice, 
therefore,  of  making  the  latter  responsible,  in  any  measure  whatever, 
for  the  torts  of  the  former,  would  seem  to  be  quite  evident.  Such 
subjectivity  would  be  hostile,  in  every  respect,  to  the  natural  rights  of 
the  infant,  and,  consequently,  cannot,  with  any  show  of  reason,  be 
introduced  into  that  provision  which  both  necessity  and  law  establish 
for  his  protection.  Nor  can  it  be  said  that  its  existence  is  necessary 
to  give  just  enforcement  to  the  rights  of  others.  When  it  happens 
that  both  the  infant  and  its  custodian  have  been  injured  by  the  co- 
operative negligence  of  such  custodian  and  a  third  party,  it  seems 
reasonable,  at  least  in  some  degree,  that  the  latter  should  be  enabled 
to  say  to  the  custodian,  "  You  and  I,  by  our  common  carelessness, 
have  done  this  wrong,  and,  therefore,  neither  can  look  to  the  other 
for  redress; "  but  when  such  wrong-doer  says  to  the  infant,  "  Your\ 
guardian  and  I,  by  our  joint  misconduct,  have  brought  this  loss  upon  I 
you,  consequently  you  have  no  right  of  action  against  me,  but  you  1 
must  look  for  indemnification  to  your  guardian  alone,''  a  proposition 
is  stated  that  appears  to  be  without  any  basis  either  in  good  sense 
or  law.  The  conversion  of  the  infant,  who  is  entirely  free  from  fault, 
into  a  wrong-doer,  by  imputation,  is  a  logical  contrivance  uncongenial 
with  the  spirit  of  jurisprudence.  The  sensible  and  legal  doctrine  is 
this:  An  infant  of  tender  years  cannot  be  charged  with  negligence; 
nor  can  he  be  so  charged  with  the  commission  of  such  fault  by  sub- 
stitution, for  he  is  incapable  of  appointing  an  agent,  the  consequence 
being,  that  he  can,  in  no  case,  be  considered  to  be  the  blamable  cause, 
either  in  whole  or  in  part,  of  his  own  injury.  There  is  no  injustice, 
nor  hardship,  in  requiring  all  wrong-doers  to  be  answerable  to  a  per- 
son who  is  incapable  either  of  self-protection  or  of  being  a  participator 
in  their  misfeasance. 

Nor  is  it  to  be  overlooked  that  the  theory  here  repudiated,  if  it 
should  be  adopted,  would  go  the  length  of  making  an  infant  in  its 
nurse's  arms  answerable  for  all  the  negligences  of  such  niu*se  while 
thus  employed  in  its  service.  Every  person  so  damaged  by  the  care- 
less custodian  would  be  entitled  to  his  action  against  the  infant.  If 
the  neglects  of  the  guardian  are  to  be  regarded  as  the  neglects  of  the 
infant,  as  was  asserted  in  the  New  York  decision,  it  would,  from  logi- 
cal necessity,  follow,  that  the  infant  must  indemnify  those  who  should 
be  harmed  by  such  neglects.    That  such  a  doctrine  has  never  pre- 


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370  BISAILLON  V.  BLOOD  [CHAP.  II. 

vailed  is  conclusively  shown  by  the  fact  that  in  the  reports  there  is  no 
indication  that  such  a  suit  has  ever  been  brought. 

It  has  already  been  observed  that  judicial  opinion,  touching  the 
subject  just  discussed,  is  in  a  state  of  direct  antagonism,  and  it  would, 
therefore,  serve  no  useful  purpose  to  refer  to  any  of  them.  It  is  suffi- 
cient to  say,  that  the  leading  text-writers  have  concluded  that  the 
weight  of  such  authority  is  adverse  to  the  doctrine  that  an  infant  can 
become,  in  any  wise,  a  tortfeasor  by  imputation.  1  Shearm.  &  R.  Neg., 
§  75;  Whart.  Neg.  §  311;  2  Wood  Railw.  L.,  p.  1284. 

In  our  opinion,  the  weight  of  reason  is  in  the  same  scale. 

It  remains  to  add  that  we  do  not  think  the  damages  so  excessive  as 
to  place  the  verdict  imder  judicial  control. 

Let  the  Circuit  Court  be  advised  to  render  judgment  on  the  finding 
of  the  jury.* 

BISAILLON  V.  BLOOD 

Supreme  Court,  New  Hampshire,  June,  1888. 

Reported  in  64  New  Hampahire  Reports,  565. 

Case,  for  the  negligent  injury  of  the  plaintiff.  Verdict  for  the 
defendaiit. 

In  October,  1886,  the  defendant,  while  driving  a  horse  in  a  carriage 
on  a  pubUc  street  of  Manchester,  ran  over  and  injured  the  plaintiff, 
an  infant  then  five  years  old,  who  had  wandered  from  his  home  with- 
out an  attendant  or  custodian,  and  was  playing  in  the  street  with 
other  children  of  about  the  same  age. 

The  jury  were  instructed  that  the  plaintiff  being  too  young  to  ex- 
ercise care  for  himself,  it  was  the  duty  of  his  parents  or  natural 

1  Chicago  R.  Co.  t;.Kowalski,(C.  C.  A.)  92  Fed.  310;  Pratt  Coal  Co.  v.  Braw- 
ley,  83  Ala.  371;  St.  Louis  R.  Co.  v.  Rexroad,  69  Ark.  180;  Daley  v.  Norwich 
R.  Co.,  26  Conn.  591:  Jacksonville  Electric  Co.  v.  Adams,  50  Fla.  429;  Ferguson 
V.  Columbus  R.  Co.,  77  Ga.  102;  Chicago  R.  Co.  v.  Wilcox,  138  111.  370;  Evans- 
ville  V.  Senhenn,  151  Ind.  42  (overruling  earlier  cases  contra);  Ives  v.  Welden, 
114  la.  476:  Union  R.  Co.  v.  Young,  57  Kan.  168  (older  caaes  contra):  South 
Covington  R.  Co.  v.  Herrklotz,  104  Ky.  400;  Westerfield  v.  Levis,  43  La.  Ann.  63; 
Shippy  V.  Au  Sable,  85  Mich.  280;  Mattson  v,  Minnesota  R.  Co.,  95  Minn.  477 
(overruling  older  cases  contra);  Westbrook  v.  Mobile  R.  Co.,  66  Miss.  560; 
Winters  v,  Kansas  City  R.  Co.,  99  Mo.  509;  Neflf  v.  City,  213  Mo.  350;  Huflf  v. 
Ames,  16  Neb.  139;  Warren  v.  Manchester  R.  Co.,  70  N.  H.  352;  Bottoms  v. 
Seaboard  R.  Co..  114  N.  C.  699;  Bellefontaine  R.  Co.  v.  Snyder,  18  Ohio  St.  399; 
Erie  R.  Co.  v.  Schuster,  113  Pa.  St.  412:  Whirley  v.  Whiteman,  1  Head,  610:  Gal- 
veston R.  Co.  V.  Moore,  59  Tex.  64;  Robinson  v.  Cone.  22  Vt.  213;  Norfolk  R.  Co. 
V,  Ormsby,  27  Grat.  455;  Dicken  v.  Liverpool  Coal  Co.,  41  W.  Va.  511  Accord. 

Meeks  v.  So.  Pac.  R.  Co.,  52  Cal.  602;  O'Brien  v.  McGlinchy,  68  Me.  552; 
Baltimore  R.  Co.  v.  McDonnell,  43  Md.  534;  Wright  v.  Maiden  R.  Co..  4  All.  283: 
Cotter  V,  Lynn  R.  Co.,  180  Mass.  145  (but  see  Mass.  Acts  1914.  c.  553);  Hartfield 
V.  Roper,  21  Wend.  615;  Parish!  v,  Eden,  62  Wis.  272;  Kuchler  v.  Milwaukee 
Electric  Co.,  157  Wis.  107  Contra. 

As  to  the  limits  of  the  rule  in  the  jurisdictions  that  follow  Hartfield  v.  Roper, 
see  McNeil  v.  Boston  Ice  Co.,  173  Mass.  570;  O'Brien  v.  McGlinchy,  68  Me.  552; 
Ihl  V.  Forty-Second  Street  Ferry,  47  N.  Y.  317;  McGarry  v.  Loomis,  63  N.  Y.  104. 


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SECT.  VIII.]       CONSOLIDATED  TRACTION  CO.  V.  HONE  371 

guardians  to  exercise  care  and  prudence  for  him  to  prevent  his  being 
injured,  and  if  they  were  negligent  in  this  respect,  and  their  neglect 
contributed  to  produce  the  injury  complained  of,  he  cannot  recover. 
To  these  instructions  the  plaintiff  excepted. 

Carpenter,  J.  The  plaintiff  would  be  entitled  to  damages  for  the 
defendant's  negligent  injury  of  his  property  similarly  exposed  to' dan- 
ger by  the  carelessness  of  his  guardian.  Davies  v.  Mann,  10  M.  &  W. 
646;  Smith  v.  Raiht>ad,  36  N.  H.  366,  367;  Giles  v.  Raiboad,  65 
N.  H.  666.  An  infant  of  such  tender  years  as  to  be  incapable  of  exer- 
cising care  IS  not  less  under  the  protection  of  the  law  than  his  chattel. 
The  previous  negligence  of  the  plaintiff's  parents  was  inmiaterial. 
The  only  question  for  the  jury  was,  whether  the  defendant  by  the  ex- 
ercise of  ordinary  care  coidd  have  prevented  the'  injury;  if  she  could 
not,  she  was  without  fault,  and  is  not  liable;  if  she  could,  she  is  liable 
whether  the  plaintiff  was  in  the  street  by  reason  of,  or  without,  his 
parents'  negligisnceV  In  cases  of  this  character,  where  an  irresponsible 
child  or  an  idiot  is,  by  the  negligence  of  the  parent  or  guardian,  ex- 
posed to  peril  witliout  an  attendant,  or  where  a  chattel  is  in  like  man- 
ner placed  by  the  owner  in  a  dangerous  position,  and  either  is  injured 
by  the  act  of  a  "  volimtary  agent  present  and  acting  at  the  tine  " 
(State  V.  Railroad,  62  N.  H.  628,  667),  the  question  of  contributory 
negligence  is  not  involved.  The  only  question  is,  whether  the  defend- 
ant by  ordinary  care  could  or  could  not  have  prevented  the  injury. 
Nashua  Iron  &  S.  Co.  v.  Nashua  Railroad,  62  N.  H.  169,  and  cases 
cited.  ^  Exceptions  sustained,^ 


CONSOLIDATED  TRACTION  COMPANY  v.  HONE 

Supreme  Court,  New  Jebsey,  November  Term,  1896. 

Reported  in  59  New  Jersey  Law  BeportSy  275. 

Bbaslbt,  C.  J.  This  is  a  suit  brought  by  Henry  Hone  as  the  ad- 
ministrator of  the  estate  of  his  deceased  son,  who  was  a  minor  and  was 
killed  by  the  carelessness  of  the  servants  of  the  plaintiff  in  error,  the 
Consolidated  Traction  Company,  in  the  management  of  one  of  their 
cars. 

The  statute  lying  at  the  basis  of  the  suit  provides  "  that  whenever 
the  death  of  a  person  shall  be  caused  by  wrongful  act,  neglect  or  de- 
fault, and  the  act,  neglect  or  default  is  such  as  would,  if  death  had  not 
ensued,  have  entitled  the  party  injured  to  maintain  an  action  and 
recover  damages  in  respect  thereof,  then  and  in  every  such  case  the 
person  who  or  the  corporation  which  would  have  been  Uable  if  death 
had  not  ensued,  shall  be  liable  to  an  action  of  damages  notwith- 

1  Savannah  Electric  Co.  v.  Dixon,  (Ga.)  89  S.  E.  373;  Smith  v.  Marion  Bottle 
Co.,  84  Kan.  551  Accord. 


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372  CONSOLIDATED  TRACTION  CO.  V.  HONE        [CHAP.  II 

standing  the  death  of  the  person  injured,"  etc.    Gen.  Stat.,  p.  1188, 
§10.* 

The  following  section  directs  "  that  the  action  shall  be  brought  by 
and  in  the  name  of  the  personal  representatives  of  the  deceased  per- 
son, and  that  the  amount  recovered  shall  be  for  the  exclusive  benefit 
of  the  widow  and  next  of  kin  of  such  deceased  person;  and  that  in 
every  such  action  the  jury  may  give  such  damages  as  they  shall  deem 
fair  and  just,  with  reference  to  the  pecuniary  injury  resulting  from 
such  death  to  the  wife  and  next  of  kin  of  such  deceased  person,"  etc. 

Id.,  §  11. 

From  these  extracts  from  the  statute  it  will  be  at  once  perceived 
that  in  this  suit  founded  upon  it,  as  in  all  others  of  the  same  class, 
but  two  questions  are  raised,  and  but  two  can  be  raised  upon  the 
record,  viz.,  first,  could  the  deceased,  if  he  had  survived,  have  main- 
tained an  action  ?  and  second,  this  being  so,  what  pecuniary  loss  has 
fallen  on  his  next  of  kin  by  reason  of  his  death  ? 

These  are  the  facts  constituting  the  issue  to  be  tried,  and  no  subject 
for  trial  can  be  more  clearly  defined. 

Notwithstanding  this  it  is  contended  in  this  case  by  the  counsel  of 
this  traction  company  that  they  have  the  right  to  defeat  the  action  if 
they  can  show  that  the  death  in  question  was  the  result  in  part  of  the 
negligent  conduct  of  the  next  of  kin,  although  such  negligent  conduct 
is  not  to  be  imputed  to  the  infant  who  is  deceased.  The  plaintiff  in 
the  present  case  is  not  only  the  personal  representative,  but  is  like- 
wise the  next  of  kin,  and  it  is  insisted  that  as  the  damages  that  may 
be  recovered  will  enure  exclusively  to  his  benefit,  he  should  in  justice 
not  be  allowed  to  recover  them  iif  he  was  in  part  the  cause  of  their 
production. 

^  At  common  law,  no  civil  action  could  be  maintained  for  wrongfully  causing  the 
death  of  a  human  being.  Following  the  English  act  of  1846,  known  as  Lord  Camp- 
bell's Act  (9  &  10  Vict.  c.  93)  statutes  in  all  jiuisdictions  now  provide  an  action 
for  the  benefit  of  specified  relatives  of  a  deceased  person  against  one  who  twtiously 
caused  his  death.  In  Tiffany,  Death  by  Wrongful  Act,  2  Kdition,  1913,  these  stat- 
utes are  printed  in  full  in  the  appendix.  The  book  also  contains  an  analytical  table 
of  the  statutes. 

Sometimes  the  relatives  are  authorized  to  sue  in  person;  while  in  other  statutes 
it  is  provided  that  the  action  shall  be  brought  by  an  administrator  of  the  estate  of 
the  deceased.  But,  even  under  the  latter  class  of  statutes,  the  sum  recovered  does 
not  usually  become  a  part  of  the  general  assets  of  the  estate  available  for  the  pay- 
ment of  creditors  (unless,  perhaps,  in  the  absence  of  any  relatives).  In  some  in- 
stances the  statute  provides  that  an  action  can  be  brought  only  in  case  the  person 
killed  could  nave  maintained  an  action  if  death  had  not  ensuea.  But,  even  where 
the  statute  does  not  contain  an  explicit  provision  of  the  above  nature,  the  courts 
generally  hold  that  contributory  negligence  on  the  part  of  the  deceased  bars  the 
statutory  action.  The  question  remains:  Will  the  contributory  negligence  of  the 
sole  beneficiary  bar  the  action,  either  where  he  is  personally  plaintiff,  or  where  he  is 
plaintiff  in  his  capacity  as  administrator  of  the  deceased,  or  where  tne  plaintiff  is  a 
third  person  suing  in  the  capacity  of  administrator  ? 

The  statutes  of  a  few  states  may,  perhaps,  be  construed  as  proceeding  upon  the 
theory  that  a  right  of  action  is  vested  in  tne  deceased,  and  that  provision  is  now 
made  for  the  survival  of  such  nght  of  action. 


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SECT.  Vni.]       CONSOLIDATED  TRACTION  CO.  V.  HONE  373 

But  it  is  to  be  remembered  that  the  l^al  doctrine  that  bars  a  party 
injured  by  the  unintentional  misconduct  of  another  by  reason  of  his 
having  himself  been,  in  a  measure,  the  occasion  of  the  resulting  dam- 
age, is  rather  an  artificial  rule  of  the  law  than  a  principle  of  justice, 
for  its  effect  generally  is  to  cast  the  entire  loss  ensuing  from  the  joint 
fault  upon  one  of  the  culpable  parties,  and  oftentimes  upon  him  who 
is  but  little  to  blame.  Such  a  l^al  regulation  has  no  claim  to  exten- 
sion, and  to  apply  it  as  is  now  insisted  on  would  be  to  use  it  in  a  novel 
way.  The  question  whether  the  deceased  was  negligent  is  within  the 
issue  formed  by  the  pleading;  while  the  question  whether  a  third 
person  who  in  his  individual  capacity  has  no  connection  with  the  suit 
was  negligent  has  nothing  whatever  to  do  with  such  issue.  In  the 
l^al  practice  of  this  state  it  is  the  established  course  to  exclude  every- 
thing that  is  not  embraced  in  the  issue  as  the  parties  have  framed  it 
and  as  it  appears  upon  the  record.  On  the  trial  of  this  case  the  in- 
quiry whether;  the  father  of  the  deceased  minor  had,  by  his  want 
of  care,  been  instfumental  in  the  production  of  the  accident,  was  a 
matter  utterly  irrelevant  to  the  subject  then  submitted  to  judicial 
inquiry. 

The  statute  of  Iowa,  relating  to  this  subject,  and  our  own  are  simi- 
lar, and  in  Wymor^s  case  (78  Iowa,  396) '  the  court  of  that  state  ex- 
pressed very  distinctly  what  is  deemed  the  correct  view  of  this  topic, 
in  these  words:  "  If,"  says  the  opinion,  "  his  parents,  by  their  negli- 
gence, contributed  to  his  death,  that  does  not  seem  to  be  a  sufficient 
reason  for  denying  his  estate  relief.  Such  negligence  would  prevent  a 
recovery  by  the  parents  in  their  own  right.  ...  It  is  claimed  that, 
.  .  .  since  they  inherited  his  estate,  the  rule  which  would  bar  a  negli- 
gent parent  from  recovering  in  such  case  in  his  own  right  ought  to 
apply.  But  the  plaintiff  seeks  to  recover  in  right  of  the  child  and  not 
of  the  parents.  It  may  be  that  a  recovery  in  this  case  will  result  in 
conferring  an  undeserved  benefit  upon  the  father,  but  that  is  a  matter 
which  we  cannot  investigate.  If  the  facts  are  such  that  the  child 
could  have  recovered  had  his  injuries  not  been  fatal,  his  administrator 

^  Wymore  v.  Mahaska  County,  78  la.  396.  The  material  provisions  of  the  stat- 
ute involved  in  that  case  were:  — 

Section  3730,  McClain's  Annotated  Code  of  Iowa.  All  causes  of  action  shall 
survive,  and  may  be  brought,  notwithstanding  the  death  of  the  person  entitled 
-  or  liable  to  the  same. 

Section  3731.  .  .  .  When  a  wrongful  act  produces  death,  the  damages  shall  be 
disposed  of  as  personal  property  belon^g  to  the  estate  of  the  deceased,  except 
that  if  the  dec^ised  leaves  a  husband,  wife,  child,  or  parent,  it  shall  not  be  liable 
for  the  payment  of  debts. 

Section  3732.  The  actions  contemplated  in  the  two  preceding  sections  may  be 
brou^t,  or  the  coiirt,  on  motion,  may  allow  the  action  to  be  continued,  by  or 
against  the  legal  representatives  or  successors  in  interest  of  the  deceased.  Such 
action  shall  be  deemed  a  continuing  one,  and  to  have  accrued  to  such  representa- 
tive or  successor  at  the  same  time  it  dia  to  the  deceased  if  he  had  survived.  .  .  . 

Section  3761.  A  father,  or,  in  case  of  his  death  or  imprisonment  or  desertion  of 
his  family,  the  mother,  may  prosecute  as  plaintiff  an  action  for  the  expenses  and 
actual  loss  of  service  resulting  from  the  injury  or  death  of  a  minor  child. 


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374  RICHMOND  CO.  V.  MARTINIS  ADM'R  [CHAP.  II. 

can  recover  the  full  amount  of  damages  which  the  estate  of  the  child 
sustained.'' 

The  subject  will  be  found  illustrated  by  a  reference  to  many  cases 
in  4  Am.  &  Eng.  Encycl.  L.  88. 

My  conclusion  is  that  there  is  no  fault  to  be  found  with  the  trial  of 
this  case  in  reference  to  this  point. 

[After  overruling  another  objection.]  Judgment  affirmed. 

[By  writ  of  error  to  review  the  above  judgment  of  the  Supreme 
Court,  the  case  was  brought  before  the  Court  of  Errors  and  Appeals. 
That  court  was  equally  divided  upon  the  question  whether  contribu- 
tory negligence  on  the  part  of  the  sole  next  of  kin  would  defeat  the 
action.  No  opinions  on  that  question  are  reported.  Consolidated 
Traction  Co.  v.  Hone,  60  New  Jersey  Law,  444.]  ^ 


RICHMOND,  FREDERICKSBURG  &  POTOMAC  R.  CO.  v. 
MARTIN'S  ADM'R 

Supreme  Court  of  Appeals,  Virginia,  December  9, 1903. 
Reported  in  102  Virginia  Reports,  201. 

Whittle,  J.  .  .  .  This  action  was  brought  by  the  defendant  in 
error,  Patrick  Martin,  administrator  of  Alice  Martin,  deceased,  against 
the  plaintiff  in  error,  the  Richmond,  Fredericksburg  &  Potomac  Rail- 
road Company,  to  recover  damages  for  the  negligent  killing  of  his 
intestate,  a  daughter  seven  years  of  age,  by  a  passenger  train  of  the 
defendant  company  at  a  pubUc  crossing.  The  mother  of  the  child 
was  killed  in  the  same  collision,  and  the  action  was  instituted  for 
the  sole  benefit  of  the  father,  who,  under  the  statute,  is  entitled  to 
the  recovery.  At  the  trial  there  was  a  verdict  for  the  plaintiff,  upon 
which  the  judgment  under  review  was  rendered. 

The  defendant  adduced  evidence  tending  to  prove  that  Patrick 
Martin,  Jr.,  a  minor  eleven  years  old,  and  a  son  of  the  plaintiff,  was 
put  in  charge  of  a  two-horse  Dayton  wagon,  as  driver  by  his  father, 
in  which  his  mother  and  two  younger  sisters  and  a  negro  boy  were  to 
be  driven  from  their  home  in  the  country  to  the  city  of  Fredericks- 
burg; that  Patrick  Martin,  Jr.,  negligently  drove  upon  and  attempted 
to  cross  the  railway  track  at  Falmouth  crossing,  in  plain  view  of  a 
rapidly  approaching  train;  and  that  in  the  collision  which  followed 

1  Southern  R.  Co.  v.  Shipp,  169  Ala.  327;  Nashville  Lumber  Co.  v.  Busbee,  100 
Ark.  76  Accord.  See  Macdonald  v.  O'Reilley.  45  Or.  589.  In  Warren  v.  Street  R., 
70  N.  H.  352,  362,  Pike,  J.,  said;  "  The  child's  cause  of  action  survived  by  reason 
of  the  statute,  and  the  money  recovered  in  it  will  be  assets  m  the  hands  of  its  ad- 
ministrator, to  be  distributed  in  accordance  with  the  special  provisions  of  the  stat- 
ute. If  the  father's  negligence  barred  his  right  to  recover  in  this  action,  there 
would  seem  to  be  no  reason  why  it  would  not  bar  him  from  recovering  any  prop- 
erty of  the  child  which  he  might  inherit  under  the  general  provisions  relating  to 
descent  and  distribution,  but  this  is  not  claimed  to  be  and  is  not  the  law.'' 


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SECT.  VIII.]         RICHMOND  CO.  V.  MARTIN's  ADM'r  375 

his  mother  and  two  sisters,  who  occupied  a  rear  seat  in  the  vehicle, 
were  instantly  killed.  Thereupon  the  defendant  moved  the  court  to 
instruct  the  jury  that  if  they  believed  from  the  evidence  that  Patrick 
Martin,  Jr.,  the  son  and  servant  of  the  plaintiff,  attempted  to  cross 
the  track  under  the  circumstances  detailed,  his  conduct  constituted 
such  contributory  negligence  as  to  bar  a  recovery.  The  court  refused 
to  give  the  instruction,  which  ruling  presents  for  decision  the  sole 
question  in  the  case,  namely,  whether  a  father,  whose  negligence  has 
contributed  to  the  death  of  his  minor  child,  can,  under  the  statute,  in 
an  action  instituted  by  him  as  administrator,  suing  for  his  own  bene- 
fit, recover  damages  for  the  death  of  the  child.  The  statute  requires 
such  actions  to  be  brought  by  and  in  the  name  of  the  personal  repre- 
sentative of  the  deceased  person,  and  empowers  the  jury  to  award 
such  damages  as  to  it  may  seem  fair  and  just, 'not  exceeding  ten 
thousand  doUars. 

The  primary  object  of  the  statute  in  allowing  an  action  to  recover 
damages  for  death  by  wrongful  act  of  another,  like  its  prototype. 
Lord  Campbell's  act,  was  to  compensate  the  family  of  the  deceased, 
and  was  not  in  the  interest  of  the  general  estate,  the  provision  being 
that :  "  The  amount  recovered  in  any  such  action  shall,  after  the  pay- 
ment of  costs  and  reasonable  attorneys'  fees,  be  paid  to  the  wife, 
husband,  parent,  and  child  of  the  deceased,  in  such  proportion  as  the 
jury  may  have  directed,  or,  if  they  have  not  directed,  according  to  the 
statute  of  distributions,  and  shall  be  free  from  all  debts  and  liabilities 
of  the  deceased;  but  if  there  be  no  wife,  husband,  parent,  or  child,  the 
amount  so  received  shall  be  assets  in  the  hands  of  the  personal  repre- 
sentative, to  be  disposed  of  according  to  law."  Code  1887,  sees.  2903, 
2905. 

It  will  be  observed  that  by  the  express  language  of  the  statute  the 
damages  awarded  cannot  become  assets  in  the  hands  of  the  adminis- 
trator, to  be  disposed  of  according  to  law,  if  the  decedent  is  survived 
by  a  wife,  husband,  parent,  or  child;  and  the  recovery  is  also  made 
free  from  all  debts  of  the  decedent,  thus  leaving  no  doubt  of  the  legis- 
lative intent  to  treat  the  recovery  as  wholly  independent  of  the  dece- 
dent and  his  estate  in  the  event  of  the  survived  of  any  one  of  the 
enumerated  kin,  and  making  it  enure  directly  and  personally  to  such 
next  of  kin  by  force  of  the  statute,  and  not  derivatively  from  the  de- 
cedent, to  whom  it  never  belonged  either  in  fact  or  in  contemplation 
of  law. 

The  authorities  all  agree  that  there  can  be  no  recovery  where  the 
action  is  brought  in  the  name  and  for  the  benefit  of  one  whose  negli- 
gence has  contributed  to  the  accident.    Thus,  if  the  child  in  this  in- 
stance had  been  injured,  instead  of  killed,  and  the  father  had  brought  ^ 
a  common-law  action  to  recover  damages  for  the  injury,  contributory  | 
negligence  on  his  part,  if  established,  would  have  constituted  a  bar  to  \ 
the  action.   But  the  contributory  negligence  of  the  father  would  inter-   I 


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376  RICHMOND  CO.  V.  MARTINIS  ADM'r  [CHAP.  IT. 

pose  no  defence  to  an  action  by  the  child  for  such  injury.  The  rule 
is  that  the  child's  want  of  responsibility  for  negligence  can  no  more  be 
invoked  to  maintain  the  action  of  the  negligent  father  than  can  the 
negligence  of  the  latter  be  imputed  to  the  child  to  defeat  an  action  by 
him. 

In  this  case  both  parties,  at  the  time  of  the  accident,  were  repre- 
sented by  agents  —  the  defendant  company  by  its  employees,  and  the 
plaintiff,  by  his  son,  to  whose  care  he  had  confided  the  custody  of  the 
younger  sister  —  and  both  were  responsible  for  the  acts  and  omissions 
of  their  respective  agents.    Glassey  v.  Ry.  Co.,  57  Pa.  172. 

In  Bellefontaine  Ry.  Co.  v.  Snyder,  24  Ohio  St.  670,  the  court  said: 
"  Where  an  infant  intrusted  to  the  care  and  custody  of  another  by  the 
father,  is  injured  through  the  n^ligence  of  a  railroad  company,  the 
custodian  of  the  child  also  being  guilty  of  negligence  which  contrib- 
uted to  the  result,  although  the  infant  may  maintain  an  action  for 
such  injury,  the  father  cannot;  the  n^ligence  of  his  agent,  the  cus- 
todian of  the  child,  being  in  law  *  the  negligence  of  the  father.'" 

"  When  an  action  for  negligent  injury  of  an  infant  is  brought  by 
the  parent,  or  for  the  parent's  own  benefit,  it  is  very  justly  held  that 
the  contributory  negl^nce  of  such  parent  may  be  ^own  in  bar  of 
the  action,  the  negligence  of  his  agent  to  whom  he  had  intnxsted  the 
child  having  contributed  to  cause  the  injury;  and  such  negligence, 
being,  in  contemplation  of  law,  the  parent's  negligence,  was  held  to 
bar  the  action."    Beach  on  Con.  Neg.,  sec.  131. 
The  doctrine  of  imputed  negligence  has  no  application  to  the  cas^  | 
V|T  Inn^^  ^^^  ^®  ^®  ^^*  *^®  negligent  father  cannot  recover  is  fo\inded  upon 
'  the  fundamental  principle  that  no  one  can  acquire  a  right  of  action 

'JTVTJ  Y^  J         by  his  own  negligence.    The  principle  involves  a  maxim  of  the  law  as  \ 
f\      '  p  old  as  the  common  law  itself.    The  difference  between  an  action  by  I 

JSa^*^  dP     the  father  for  injuries  to  the  child  where  death  does  not  ensue  and  aiu 
f^       ^^      action  by  the  father  as  administrator  of  his  dead  child,  brought  under 
Om^CL*^      the  statute  for  his  own  benefit,  is  a  difference  in  form  merely,  liot  in 
Vl;^.  substance,  and  on  principle  there  can  be  no  more  reason  for  permit-  ( 

ting  a  recovery  in  the  latter  case  than  in  the  former.    In  both  the 
father  is  the  substantial  plaintiff  and  the  sole  beneficiary.   To  allow  a 
recovery  in  either  would  be  a  violation  of  the  policy  of  the  law,  which 
forbids  that  one  shall  reap  a  benefit  from  his  own  misconduct.    Ac- 
cordingly the  authorities  are  practically  unanimous  to  the  effect  that 
the  guiding  principle  in  both  classes  of  cases  is  identical,  and  the 
i   contributory  negligence  of  the  beneficial  plaintiff  will  as  effectually 
*   defeat  a  recovery  in  the  one  case  as  in  the  other, 
j        In  Kinkead's  Com.  on  Torts,  sec.  474,  the  author  says  the  rule  is 
well  settled  that  the  negligence  of  a  parent  of  a  minor  is  a  bar  to  an 
,    action  by  him  to  recover  damages  for  an  injury  to  the  minor,  and 
adds:  "  It  may,  however,  be  contended  with  equal  force  that  the  fact 
that  a  parent  is  a  beneficiary  in  case  of  death,  that  contributory  negli- 


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SECT.  VIII.]  WELCH  V.  WESSON  377 

gence  on  his  part  should  be  a  defence  to  an  action  brought  under  the 
statutes  now  being  considered,  as  well  as  in  an  action  in  his  own 
name  for  a  personal  injury.  The  policy  of  the  law  is  not  to  allow  a 
recovery  for  the  benefit  of  a  wrongdoer,  and  this  should  be  applied  as 
well  to  actions  in  the  name  of  another  for  the  benefit  of  those  who 
may  have  contributed  to  the  wrong.  What  shall  constitute  a  defence 
to  this  class  of  actions  is  not  prescribed  in  these  statutes,  but  is  gov- 
erned by  the  same  principles  applicable  to  jjersonal  injuries.  It  is 
considered  by  the  majority  of  cases  that  the  administrator  is  only  a 
trustee  or  a  mere  nominal  party,  and  that  the  action  will  be  defeated 
by  the  contributory  negligence  of  the  beneficiaries."  [Remainder  of 
opinion  omitted.] 

Jvdgment  reversed.    Case  remanded  for  a  new  trial} 


WELCH  V.  WESSON 

SuPREBiB  Judicial  Court,  Massachusetts,  SEPTBBfBBR 

Term,  1856. 

Reported  in  6  Oray,  505. 

Action  op  tort  for  running  down  the  plaintiff  while  driving  on  the 
highway,  and  breaking  his  sleigh.  Trial  in  the  Court  of  Conmion 
Pleas,  before  Mellen,  C.  J.,  who  signed  a  bill  of  exceptions,  the  sub- 
stance of  which  is  stated  in  the  opinion. 

Merrick,  J.  It  appears  from  the  bill  of  exceptions  to  have  been 
fully  proved  upon  the  trial  that  the  defendant  wilfully  ran  down  the 
plaintiff  and  broke  his  sleigh,  as  is  alleged  in  the  declaration.  No 
justification  or  legal  excuse  of  this  act  was  asserted  or  attempted  to 
be  shown  by  the  defendant;  but  he  was  permitted,  against  the  plain- 
tiff's objection,  to  introduce  evidence  tending  to  prove  that  it  was 

»  Lee  V,  New  River  Cool  Co.,  (C.  C.  A.)  203  Fed.  644;  Chicago  R.  Co.  v,  Logue, 
158  111.  621;  True  v.  Woda,  201  HI.  315;  Gibbons  v.  Williams,  135  Mass.  333; 
Tucker  v.  Draper,  62  Neb.  66;  Davis  v.  Seaboard  R.  Co.,  136  N.  C.  115;  Scherer  v. 
Schlaberg,  18  N.  D.  421;  Bamberger  v.  Citizens'  R.  Co.,  95  Tenn.  18;  Palmer  v, 
Oregon  R.  Co.,  34  Utah,  466;  Ploof  v,  Burlington  Traction  Co.,  70  Vt.  509;  Vin- 
nette  ».  Northern  R.  Co.,  47  Wash.  320;  Gunn  v,  Ohio  R.  Co.,  42  W.  Va.  676 
Accord. 

**  The  right  of  recovery  and  measure  of  damages  are  different  from  what  existed 
in  the  intestate.  This  right  of  recovery  did  not  exist  at  conmion  law.  It  is  whoUv 
given  by  the  act.  It  is  not  an  act  to  cause  to  survive  a  right  of  recovery  which 
otherwise  would  be  taken  away  by  the  death  of  the  injured.  .  .  .  Hence  the  con- 
tention that  the  recovery  is  in  the  right  of  the  intestate,  and  can  be  defeated  only 
by  his  contributory  negligence,  cannot  be  sustained.  .  •  .  From  a  very  early  day 
the  common  law  has  demed  a  recovery,  as  unjust,  to  a  party  whose  ne^gence  has 
contributed  to  the  accident  causing  the  injury  for  which  he  demands  diunages.  All 
statutes  conferring  a  right  of  recovery  of  damages,  especially  when  in  terms  they 
give  such  damages  only  as  are  justy  must  be  read  and  considered  with  reference  to 
this  universal  principle  of  the  common  law."  Ross,  C.  J.,  in  Ploof  v.  Burlington 
Traction  Co.,  70  Vt.  509,  516,  517. 

''  Shall  the  state  say  to  the  father,  *  If  you  know  that  your  child  is  in  danger  of 
injury  from  the  negligence  of  others',  you  are  under  no  legal  obligation  to  protect  it 


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378  WELCH  V.  WESSON  [CHAP.  II. 

done  while  the  parties  were  trotting  horsies  in  competition  with  each 
other  for  a  purse  of  money,  the  ownership  of  which  was  to  be  deter- 
mined by  the  issue  of  the  race.  And  it  was  ruled  by  the  presiding 
judge,  that  if  this  fact  was  established,  no  action  could  be  maintained 
by  the  plaintiff  to  recover  compensation  for  the  damages  he  had  sus- 
tained, even  though  the  injury  complained  of  was  wilfully  inflicted. 
Under  such  instructions,  the  jury  returned  a  verdict  for  the  defendant. 

We  presume  it  may  be  assumed  as  an  undisputed  principle  of  law, 
that  no  action  will  lie  to  recover  a  demand,  or  a  supposed  claim  for 
damages,  if,  to  establish  it,  the  plaintiff  requires  aid  from  an  illegal 
transaction,  or  is  under  the  necessity  of  showing,  and  depending  in 
any  degree  upon  an  illegal  agreement,  to  which  he  himself  had  been 
a  party.  Gregg  v.  Wyman,  4  Cush.  322;  Woodman  v.  Hubbard,  5 
Foster,  67;  Phalen  v.  Clark,  19  Conn.  421;  Simpson  v.  Bloss,  7 
Taunt.  246.  But  this  principle  will  not  sustain  the  ruling  of  the 
Court,  which  went  far  beyond  it,  and  laid  down  a  much  broader  and 
more  comprehensive  doctrine.  Taken  without  qualification,  and  just 
as  they  were  given  to  the  jury,  the  instructions  import  that,  if  two 
persons  are  engaged  in  the  same  unlawful  enterprise,  each  of  them, 
during  the  continuance  of  such  engagement,  is  irresponsible  for  wil- 
ful injuries  done  to  the  property  of  the  other.  No  such  proposition 
as  this  can  be  true.  He  who  violates  the  law  must  suffer  its  penalties; 
but  yet  in  all  other  respects  he  is  under  its  protection,  and  entitled  to 
the  benefit  of  its  remedies. 

But  in  this  case  the  plaintiff  had  no  occasion  to  show,  in  order  to 
maintain  his  action,  that  he  was  engaged,  at  the  time  his  property  was 
injured,  in  any  unlawful  pursuit,  or  that  he  had  previously  made  any 
illegal  contract.  It  is  true  that,  when  he  suffered  the  injury,  he  was 
acting  in  violation  of  the  law;  for  all  horse  trotting  upon  wagers  for 
money  is  expressly  declared  by  statute  to  be  a  misdemeanor  punish- 
able by  fine  and  imprisonment.  St.  1846,  c.  200.  But  neither  the  con- 
tract nor  the  race  had,  as  far  as  appears  from  the  facts  reported  in 
the  bill  of  exceptions,  or  from  the  intimations  of  the  Court  in  its  rul- 
ing, anything  to  do  with  the  trespass  committed  upon  the  property  of 

from  such  injury,  and  if  you  allow  the  child  to  be  killed,  you  may  recover,  from  one 
who  is  equally  at  fault  with  yourself,  for  any  pecuniary  injury  you  may  suffer  by 
reason  of  the  death  ?  *  No  such  meaning  can  be  derived  from  the  statute/'  Sedg- 
wick, C,  in  Tucker  v.  Draper,  62  Neb.  66,  67. 

See  Wigmore,  Contributoiy  Negligence  of  the  Beneficiary  as  a  Bar  to  an  Admin- 
istrator's Action  for  Death,  2  Illinois  Law  Rev.  487. 

As  to  recovery  where  third  person  is  administrator  and  there  is  negligence  on 
the  part  of  the  sole  beneficiary  or  all  the  beneficiaries,  see:  Toledo  R.  Co.  v.  Grable, 
88  111.  441;  Feldman  v.  Detroit  R.  Co.,  162  Mich.  486;  Davis  v.  Seaboard  R.  Co.. 
136  N.  C.  115;  Wolf  v.  Lake  Erie  R.  Co.,  55  Ohio  St.  517:  Gunn  v.  Ohio  R.  Co.,  42 
W.  Va.  676.  Contra:  Wymore  v.  Mahaska  County,  78  la.  396;  McKay  v.  Syra- 
cuse R.  Co.,  208  N.  Y.  359. 

As  to  recovery  where  some  of  the  beneficiaries  are  negligent  and  others  not,  see: 
Phillips  V.  Denver  Tramway  Co.,  53  Col.  458;  Love  v.  Detroit  R.  Co.,  170  Mich.  1 ; 
Wolf  V,  Lake  Erie  R.  Co.,  55  Ohio  St.  517;  Darbrinsky  v,  Pennsylvania  Co..  248 
Pa.  St.  503. 


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SECT.  VIII.]       BOSWORTH  V.  INHABITANTS  OP  SWANSBY  379 

the  plaintiflf.  That  he  had  no  occasion  to  show  into  what  stipulations 
the  parties  had  entered,  or  what  were  the  rules  or  regulations  by  which 
they  were  to  be  governed  in  the  race,  or  whether  they  were  in  fact  en- 
gaged in  any  such  business  at  all,  is  apparent  from  the  course  of  the 
proceedings  at  the  trial.  The  plaintiff  introduced  evidence  tending  to 
prove  the  wrongfid  acts  complained  of  in  the  writ,  and  the  damage 
done  to  his  property,  and  there  rested  his  case.  If  nothing  more  had 
been  shown,  he  would  clearly  have  been  entitled  to  recover.  He  had 
not  attempted  to  derive  assistance  either  from  an  illegal  contract  or  an 
illegal  transaction.  It  was  the  defendant,  and  not  the  plaintiff,  who 
had  occasion  to  invoke  assistance  from  proof  of  the  illegal  agreement 
and  conduct  in  which  both  parties  had  equally  participated.  From 
such  sources  neither  of  the  parties  should  have  been  permitted  to 
derive  a  benefit.  The  plaintiff  sought  nothing  of  this  kind,  and  the 
mutual  misconduct  of  the  parties  in  one  particular  cannot  exempt  the 
defendant  from  his  obligation  to  respond  for  the  injurious  conse- 
quences of  his  own  ill^al  misbehavior  in  another. 

Exceptions  sv^tained,^ 


BOSWORTH  V.  INHABITANTS  OF  SWANSEY 

Supreme  Judicial  Court,  Massachusetts,  October  Term,  1845. 

Reported  in  10  Metcajf,  363. 

This  was  an  action  on  the  Rev.  Sts.,  c.  25,  §  22,  for  an  injury  alleged 
to  have  been  received  by  the  plaintiff,  by  reason  of  a  defect  in  a  high- 
way, in  the  town  of  Swansey,  which  said  town  was  by  law  obliged  to 
repair. 

At  the  trial  in  the  Court  of  Common  Pleas,  before  Wells,  C.  J.,  it 
appeared  that  the  injury  set  forth  in  the  plaintiff's  declaration  was 
sustained  by  him,  as  therein  alleged,  on  the  11th  of  June,  1843,  being 
the  Lord's  day,  in  the  forenoon  of  said  day,  as  he  was  travelling  from 
Warren  (R.  I.),  where  he  resided,  to  Fall  River,  on  business  connected 
with  the  conduct  of  a  cause  then  pending  in  the  District  Court  of  the 
United  States  in  Rhode  Island.  The  defendants  admitted  that  they 
were  by  law  bound  to  keep  said  highway  in  repair. 

The  judge  instructed  the  jury,  that  the  plaintiff  would  not  be  en- 
titled to  recover,  unless  he  satisfied  them  that  his  travelling  on  the 
Lord's  day  was  from  necessity  or  for  purposes  of  charity;  that  it  being 
admitted  that  his  business  was  of  a  secular  character,  the  burden  was 
upon  him  to  show  the  necessity  of  transacting  this  business  on  the 
Lord's  day. 

The  jury  found  a  verdict  for  the  defendants,  and  the  plaintiff  al- 
leged exceptions  to  the  judge's  instructions.* 

1  See  Broschartr.Tuttle,  59  Conn.  1;  Dudley  V.Northampton,  202  Mass.  443, 449 
>  The  arguments  are  omitted. 


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380  BOSWORTH  V.  INHABITANTS  OF  SWANSEY       [CHAP.  II. 

Shaw,  C.  J.  This  was  an  action  to  recover  damages  against  a  town 
for  a  defect  in  their  highway,  by  means  of  which  the  plaintiff  sus- 
tained a  loss.  It  appeared  that  the  accident  occurred  on  the  Lord's 
day. 

It  has  been  repeatedly  decided  that,  to  maintain  this  action,  it  must 
appear  that  the  accident  was  occasioned  exclusively  by  the  defect  of 
the  highway;  to  establish  which,  it  must  appear  that  the  plaintiflf  him- 
self is  free  from  all  just  imputation  of  negligence  or  fault.  Smith  v. 
Smith,  2  Pick.  621;  Howard  v.  North  Bridgewater,  16  Pick.  189. 
And  in  these  and  other  cases,  it  has  been  held  that  the  burden  of  proof 
is  on  the  plaintiff,  to  prove  affirmatively  that  he  was  so  free  from  all 
fault.  Adams  v.  Carlisle,  21  Pick.  146;  Lane  v.  Crombie,  12  Pick. 
177.  The  Court  are  of  opinion  that  this  case  comes  within  this 
principle.  The  Rev.  Sts.,  c.  50,  §  2,  provide  that  "  no  person  shall 
travel  on  the  Lord's  day,  except  from  necessity  or  charity,"  and  that 
"  every  person  so  offending  shall  be  punished  by  a  fine,  not  exceeding 
ten  dollars  for  every  offence."  The  act  of  the  plaintiff,  therefore,  in 
doing  which  the  accident  occurred,  was  plainly  unlawful,  unless  he 
could  bring  himself  within  the  excepted  cases;  and  this  would  be  a 
species  of  fault  on  his  part,  which  would  bring  him  within  the  prin- 
ciple of  the  cases  cited.  It  would  show  that  his  own  unlawful  act  con- 
curred in  causing  the  damage  complained  of.  Then  if  he  would  bring 
himself  within  either  of  the  exceptions,  he  must  prove  the  fact  which 
the  statute  makes  an  exception.  In  the  case  last  above  cited.  Lane  v. 
Croinbie,  the  verdict  was  set  aside,  because  the  judge  instructed  the 
jury,  that  after  the  negligence  of  the  defendants  had  been  proved,  if 
they  relied  on  want  of  due  care  on  the  part  of  the  plaintiff,  the  burden 
was  upon  them  to  prove  it.  This  was  held  to  be  erroneous,  and  the 
burden  was  decided  to  be  on  the  plaintiff  to  prove  herself  free  from 
all  fault.  On  this  ground  the  verdict  was  set  aside,  although  the  evi- 
dence was  such  that  probably  the  direction  in  regard  to  burden  of 
proof  had  not  much  influence. 

The  Court  are  therefor  of  opinion  that  the  instruction  of  the  judge 
was  right,  that  the  burden  of  proof  was  on  the  plaintiff  to  show  that 
his  travelling  on  the  Lord's  day  was  from  necessity  or  for  purposes 
of  charity. 

What  constitutes  such  necessity  or  purpose  of  charity,  are  questions 
not  raised  by  the  bill  of  exceptions.  Exceptions  overruled.^ 

\  Hinckley  r.  Penobscot.  42  Me.  89;  Smith  v,  Boston  R.  Co.,  120  Mass.  490 
(injury  to  passenger  travelling  on  train  in  violation  of  Sunday  law)  Accord. 

"  The  provisions  of  chapter  ninety-eight  of  the  Public  Statutes  relating  to  the 
observance  of  the  Lord's  day  shall  not  constitute  a  defence  to  an  action  for  a  tort 
or  injury  suffered  by  a  person  on  that  day.''    Mass.  Acts  1884,  c.  57,  (  1- 


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SECT.  VIII.]         SUTTON  V.  TOWN  OF  WAUWATOSA  381 

SUTTON  V.  TOWN  OF  WAUWATOSA 

Supreme  Court,  Wisconsin,  June  Te^m,  1871. 

Reported  in  29  WisconHn  Reports,  21. 

Appeal  from  County  Court  for  Milwaukee  County. 

Action  against  a  town  to  recover  damages  for  injuries  to  plaintiff's 
cattle,  caused  by  the  breaking  down  of  a  defective  bridge  which  they 
were  crossing. 

The  plaintiff  started  from  Columbus  on  a  Friday  morning  with  a 
drove  of  about  fifty  cattle,  intending  to  take  them  to  Milwaukee,  and 
sell  them.  Stopping  at  Hartland  over  Saturday  night,  he  resumed  his 
journey  on  Sunday  morning,  and  at  about  four  o'clock,  p.  m.,  reached 
a  public  bridge  of  about  seventy-two  feet  span,  over  the  Menomonee 
River,  in  the  town  of  Wauwatosa.  The  cattle  were  driven  upon  the 
bridge,  and  when  the  greater  part  of  them  were  near  the  middle  of  the 
span  the  stringers  broke,  some  twelve  feet  from  the  abutments  at  each 
end,  and  precipitated  the  structure,  with  the  cattle  upon  it,  into  the 
river,  causing  the  death  of  some,  severely  injuring  others,  and  render- 
ing the  remainder  for  a  time  unsalable. 

The  complaint  alleges,  that  the  injury  was  caused  by  the  dangerous, 
unsafe,  and  rotten  condition  of  the  bridge,  and  the  neglect  of  the  de- 
fendant to  keep  it  in  proper  repair. 

The  answer  denies  the  negligence  charged  to  the  defendant,  and  al- 
leges that  the  cattle  were  driven  upon  the  bridge  in  so  careless  and 
n^ligent  a  manner  as  to  cause  it  to  break;  and,  also,  that  they  were 
so  driven  upon  the  bridge  on  Sunday. 

After  hearing  the  evidence  on  the  part  of  the  plaintiff,  the  Court 
granted  a  nonsuit,  on  the  groimd  that  the  plaintiff,  being  in  the  act  of 
violating  the  statute  prohibiting  the  doing  of  secular  business  on  Sun- 
day, when  the  injury  occurred,  could  not  recover  therefor.  The  plain- 
tiff appealed.^ 

Dixon,  C.  J.  It  is  very  clear  that  the  plaintiff,  in  driving  his  cattle 
along  the  road  and  over  the  bridge,  to  a  market,  on  Sunday,  was  at  the 
time  of  the  accident  in  the  act  of  violating  the  provisions  of  the  statute 
of  this  State,  which  prohibits,  under  a  penalty  not  exceeding  two  dol- 
lars for  each  offence,  the  doing  of  any  manner  of  labor,  business,  or 
work  on  that  day,  except  only  works  of  necessity  or  charity,  R.  S., 
c.  183,  §  5.  It  was  upon  this  ground  the  nonsuit  was  directed  by  the 
Court  below,  and  the  point  thus  presented,  that  the  imlawful  act  of 
the  plaintiff  was  negligence,  or  a  fault  on  his  part  contributing  to  the 
injury,  and  which  will  preclude  a  recovery  against  the  town,  is  not  a 
new  one;  nor  is  the  law,  as  the  Court  below  held  it  to  be,  without 
some  adjudications  directly  in  its  favor,  and  those  by  a  judicial  tri- 

'  The  arguments  are  omitted;  also  that  part  of  the  opinion  which  relates  to  the 
question  of  contributory  ne^gence. 


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382  SUTTON  V.  TOWN  OP  WAUWAT08A  [CHAP.  II. 

bunal  as  eminent  and  much  resp)ected  for  its  learning  and  ability  as 
any  in  this  country.  Bosworth  v.  Swansey,  10  Met.  363;  Jones  v. 
Andover,  10  Allen,  18.  A  similar,  if  not  the  very  same  principle  has 
been  maintained  tn  other  decisions  of  the  same  tribunal.  Gregg  v. 
Wyman,  4  Gush.  322;  May  v.  Foster,  1  Allen,  408.  But  in  others 
still,  as  we  shall  hereafter  have  occasion  to  observe,  the  same  learned 
Court  has,  as  it  appears  to  us,  held  to  a  different  and  contradictory 
rule  in  a  class  of  cases  wjiich  it  would  seem  ought  obviously  to  be 
governed  by  the  same  principle.  The  two  first  above  cases  were  in  all 
material  respects  Uke  the  present,  and  it  was  held  there  could  be  no 
recovery  against  the  towns.  In  the  first,  the  opinion,  delivered  by 
Chief  Justice  Shaw,  and  which  is  very  short,  commences  with  a  state- 
ment of  the  proposition,  repeatedly  decided  by  that  Court,  "  that  to 
maintain  the  action  it  pxust  appear  that  the  accident  was  occasioned 
exclusively  by  the  defect  of  the  highway;  to  establish  which,  it  must 
appear  that  the  plaintiff  himself  is  free  from  all  just  imputation  of 
negligence  or  fault."  The  authorities  to  this  proposition  are  cited, 
and  the  statute  against  the  pursuit  of  secular  business  and  travel  on 
the  Lord's  day  then  referred  to,  and  the  opinion  proceeds:  "  The  act 
of  the  plaintiff,  therefore,  in  doing  which  the  accident  occurred,  was 
plainly  unlawful,  imless  he  coidd  bring  himself  within  the  excepted 
cases;  and  this  would  be  a  species  of  fault  on  his  part  which  would 
bring  him  within  the  principle  of  the  cases  cited.  It  would  show 
that  his  own  unlawful  act  concurred  in  causing  the  damage  complained 
of.''  This  is  all  of  the  opinion  touching  the  point  imder  consideration. 
In  the  next  case  there  was  a  little,  and  but  a  little,  more  effort  at 
reasoning  upon  the  point.  The  illustrations  on  page  20,  of  negligence 
in  a  railway  company  in  omitting  to  ring  the  bell  of  the  engine,  or  to 
sound  the  whistle  at  the  crossing  of  a  highway,  and  of  the  traveller  on 
the  wrong  side  of  the  road  with  his  vehicle  at  the  time  of  the  collision, 
and  the  language  of  the  Court  alluding  to  such  "  conduct  of  the  party 
as  contributing  to  the  accident  or  injury  which  forms  the  groundwork 
of  the  action,"  very  clearly  indicate  the  true  ground  upon  which  the 
doctrine  of  contributory  negUgence,  or  want  of  due  care  in  the  plain- 
tiff, rests,  but  it  is  not  shown  how  or  why  the  mere  violation  of  a 
statute  by  the  plaintiff  constitutes  such  ground.  Upon  this  point  the 
Comt  only  say:  "  It  is  true  that  no  direct  unlawful  act  of  omission  or 
commission  by  the  plaintiff,  done  at  the  moment  when  the  accident 
occurred,  and  tending  immediately  to  produce  it,  is  offered  to  be 
shown  in  evidence.  But  it  is  also  true  that,  if  the  plaintiff  had  not 
been  engaged  in  the  doing  of  an  unlawful  act,  the  accident  would  not 
have  happened,  and  the  negligence  of  the  defendants  in  omitting  to 
keep  the  road  in  proper  repair  would  not  have  contributed  to  produce 
an  injury  to  the  plaintiff.  It  is  the  disregard  of  the  requirements  of 
the  statute  by  the  plaintiff  which  constitutes  the  fault  or  want  of  due 
care,  which  is  fatal  to  the  action."    It  would  seem  from  this  language 


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SECT.  VIII.]         SUTTON  V.  TOWN  OF  WAUWATOSA  383 

that  the  violation  of  the  statute  by  the  plaintiff  is  regarded  only  as  a 
species  of  remote  negligence,  or  want  of  proper  care  on  his  part 
contributing  to  the  injury. 

The  two  other  cases  above  cited  were  actions  of  tort  by  the  owners, 
to  recover  damages  from  the  bailees  for  injuries  to  personal  property 
loaned  and  used  on  Sunday,  —  horses  loaned  and  immoderately 
driven  on  that  day.  They  were  decided  against  the  plaintiffs,  and 
chiefly  on  the  ground  of  the  imlawfulness  of  the  act  of  loaning  or  let- 
ting on  Sunday  of  the  horses,  to  be  driven  on  that  day  in  violation  of 
the  statute,  which  the  plaintiffs  themselves  were  obliged  to  show,  and 
the  doctrine  of  par  delictum  was  applied.  It  was  in  substance  held  in 
each  case  that  the  plaintiff,  by  the  first  wrong  committed  by  him,  had 
placed  himself  in  pari  delicto  with  the  defendant,  with  respect  to  the 
subsequent  and  distinct  wrong  conmiitted  by  the  latter,  and  the 
actions  were  dismissed  upon  the  principle  that  the  law  will  not  permit 
a  party  to  prove  his  own  illegal  acts  in  order  to  establish  his  case. 

In  direct  opposition  to  the  above  decisions  are  the  numerous  cases 
decided  by  the  (Courts  of  other  States,  the  Supreme  Comli  of  the 
United  States,  and  the  Courts  of  Great  Britain,  which  have  been  so 
diligently  collected  and  ably  and  forcibly  presented  in  the  brief  of  the 
learned  counsel  for  the  present  plaintiff.  Of  the  cases  thus  cited,  with 
some  others,  we  make  particular  note  of  the  following:  Woodman  v. 
Hubbard,  5  Foster,  67;  Mohney  v.  Cook,  26  Penn.  342;  Norris  v. 
Litchfield,. 35  N.  H.  271;  Corey  v.  Bath,  id.  630;  Merritt  v.  Earle, 
29  N.  Y.  115;  Bigelow  v.  Reed,  51  Maine,  325;  Hamilton  v.  Coding, 
65  id.  428;  Baker  v.  The  City  of  Portland,  58  id.  199;  Kerwhacker 
V.  Railway  Co.,  3  Ohio  St.  172;  Phila.,  Ac.  Railway  Co.  v.  Phila., 
&c.  Tow  Boat  Co.,  23  How.  (U.  S.)  209;  Bird  v.  Holbrook,  4  Bing. 
628;  Barnes  v.  Ward,  9  M.  G.  A  S.  420. 

It  seems  quite  imnecessary,  if  indeed  it  were  possible,  to  add  any- 
thing to  the  force  or  conclusiveness  of  the  reasons  assigned  in  some  of 
these  cases  in  support  of  the  views  taken  and  decisions  made  by  the 
Courts.  The  cases  may  be  summed  up  and  the  result  stated  generally 
to  be  the  afl&rmance  of  two  very  just  and  plain  principles  of  law  as  ap- 
plicable to  civil  actions  of  this  nature,  namely :  first,  that  one  party  to 
the  action,  when  called  upon  to  answer  for  the  consequences  of  his  own 
wrongful  act  done  to  the  other,  cannot  allege  or  reply  the  separate  or 
distinct  wrongful  act  of  the  other,  done  not  to  himself  nor  to  his  in- 
jury, and  not  necessarily  connected  with,  or  leading  to,  or  causing  or 
producing  the  wrongful  act  complained  of;  and,  secondly,  that  the 
fault,  want  of  due  care  or  negligence  on  the  part  of  the  plaintiff,  which 
will  preclude  a  recovery  for  the  injury  complained  of,  as  contributing 
to  it,  must  be  some  act  or  conduct  of  the  plaintiff  having  the  relation 
to  that  injury  of  a  cause  to  the  effect  produced  by  it.  Under  the 
operation  of  the  first  principle,  the  defendant  cannot  exonerate  himself 
or  claim  immunity  from  the  consequences  of  his  own  tortious  act, 


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384  StJTTON  V.  TOWN  OP  WAUWATOSA  [CHAP.  II. 

voluntarily  or  negligently  done  to  the  injury  of  the  plaintiff,  on  the 
ground  that  the  plaintiff  has  been  guilty  of  some  other  and  inde- 
pendent wrong  or  violation  of  law.  Wrongs  or  offences  cannot  be  set 
off  against  each  other  in  this  way.  "  But  we  should  work  a  confusion 
of  relations,  and  lend  a  very  doubtful  assistance  to  morality/'  say  the 
Court  in  Mohney  v.  Cook,  "  if  we  should  allow  one  offender  against 
the  law^  to  the  injury  of  another,  to  set  off  against  the  plaintiff  that 
he  too  is  a  public  offender.''  Himself  guilty  of  a  wrong,  not  dependent 
on  nor  caused  by  that  charged  against  the  plaintiff,  but  arising  from 
his  own  voluntary  act  or  his  neglect,  the  defendant  cannot  assume  the 
championship  of  public  rights,  nor  to  prosecute  the  plaintiff  as  an 
offender  against  the  laws  of  the  State,  and  thus  to  impose  upon  him  a 
penalty  many  times  greater  than  what  those  laws  prescribe.  Neither 
justice  nor  soimd  morals  require  this,  and  it  seems  contrary  to  the 
dictates  of  both  that  such  a  defence  should  be  allowed  to  prevail.  It 
would  extend  the  maxim,  ex  turpi  causa  nan  oritur  actio,  beyond  the 
scope  of  its  legitimate  application,  and  violate  the  maxim,  equally 
binding  and  wholesome,  and  more  extensive  in  its  operation,  that  no 
man  shall  be  permitted  to  take  advantage  of  his  own  wrong.  To  take 
advantage  of  his  own  wrong,  and  to  visit  unmerited  and  over-rigorous 
punishment  upon  the  plaintiff,  constitute  the  sole  motive  for  such 
defence  on  the  part  of  the  person  making  it.  In  the  cases  of  the 
horses  let  to  be  driven  on  Sunday,  so  far  as  the  owners  were  obliged 
to  resort  to  an  action  on  the  contract  which  was  executory  and  illegal, 
of  course  there  could  be  no  recovery;  but  to  an  action  of  tort,  founded 
not  on  the  contract,  but  on  the  tort  or  wrong  subsequently  conunitted 
by  the  defendant,  the  illegality  of  the  contract  furnished  no  defence, 
as  is  clearly  demonstrated  in  Woodman  v.  Hubbard,  and  the  cases 
there  cited.  The  decisions  under  the  provision  of  the  constitution  of 
this  State  abolishing  imprisonment  for  debt  arising  out  of  or  founded 
on  a  contract  express  or  implied,  and  some  others  in  this  Court 
strongly  illustrate  the  same  distinction.  In  re  Mowry,  12  Wis.  52, 
56,  57;  Cotton  v.  Sharpstein,  14  Wis.  229,  230;  Schennert  v.  Koehler, 
23  Wis.  523,  527. 

And  as  to  the  other  principle,  that  the  act  or  conduct  of  the  plaintiff 
which  can  be  imputed  to  him  as  a  fault,  want  of  due  care  or  negligence 
on  his  part  contributing  to  the  injury,  must  have  some  connection  with 
the  injury  as  cause  to  effect,  this  also  seeois  almost  too  clear  to  require 
thought  or  elaboration.  To  make  good  the  defence  on  this  groimd,  it 
must  appear  that  a  relation  existed  between  the  act  or  violation  of  law 
on  the  part  of  the  plaintiff,  and  the  injury  or  accident  of  which  he 
complains,  and  that  relation  must  have  been  such  as  to  have  caused  or 
helped  to  cause  the  injury  or.  accident,  not  in  a  remote  or  speculative 
sense,  but  in  the  natural  and  ordinary  course  of  events  as  one  event  is 
known  to  precede  or  follow  another.  It  must  have  been  some  act, 
omission,  or  fault  naturally  and  ordinarily  calculated  to  produce  the 


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SECT.  VIII.]         SUTTON  V.  TOWN  OP  WAUWATOSA  385 

injury,  or  from  which  the  injury  or  accident  might  naturally  and 
reasonably  have  been  anticipated  under  the  circumstances.  It  is  ob- 
vious that  a  violation  of  the  Sunday  law  is  not  of  itself  an  act,  omis- 
sion, or  fault  of  this  kind,  with  reference  to  a  defect  in  the  highway 
or  in  a  bridge  over  which  a  traveller  may  be  passing,  unlawfully 
though  it  may  be.  The  fact  that  the  traveller  may  be  violating  this 
law  of  the  State,  has  no  natural  or  necessary  tendency  to  cause  the 
injury  which  may  hapjjen  to  him  from  the  defect.  All  other  condi- 
tions and  circumstances  remaining  the  same,  the  same  accident  or 
injury  would  have  happened  on  any  other  day  as  well.  The  same 
natural  causes  would  have  produced  the  same  result  on  any  other  day, 
and  the  time  of  the  accident  or  injury,  as  that  it  was  on  Sunday,  is 
wholly  immaterial  so  far  as  the  cause  of  it  or  the  question  of  con- 
tributory negligence  is  concerned.  In  this  resjject  it  would  be  wholly 
immaterial  also  that  the  traveller  was  within  the  exceptions  of  the 
statute,  and  travelling  on  an  errand  of  necessity  or  charity,  and  so 
was  lawfully  upon  the  highway. 

The  mere  matter  of  time,  when  an  injury  like  this  takes  place,  is  not 
in  general  an  element  which  does  or  can  enter  at  all  into  the  considera- 
tion of  the  cause  of  it.  Time  and  place  are  circumstances  necessary  in 
order  that  any  event  may  happen  or  transpire,  but  they  are  not  ordi- 
narily, if  they  ever  are,  circumstances  of  cause  in  transactions  of  this 
nature.  There  may  be  concurrence  or  connection  of  time  and  place 
between  two  or  three  or  more  events,  and  yet  one  event  not  have  the 
remotest  influence  in  causing  or  producing  either  of  the  others.  A 
traveller  on  the  highway,  contrary  to  the  provisions  of  the  statute,  yet 
peaceably  and  quietly  pursuing  his  course,  might  be  assaulted  and 
robbed  by  a  highwayman.  It  would  be  difficult  in  such  case  to  per- 
ceive how  the  highwajonan  could  connect  the  unlawful  act  of  the  trav- 
eller with  his  assault  and  robbery  so  as  to  justify  or  excuse  them,  or 
how  it  could  be  said,  that  the  former  had  any  natural  or  legitimate 
tendency  to  cause  or  produce  the  latter.  It  is  true,  it  might  be  said,  if 
the  traveller  had  not  been  present  at  that  particular  time  or  place,  he 
would  not  have  been  assaulted  and  robbed,  but  that  too  might  be  said 
of  any  other  assault  or  robbery  committed  upon  him;  for  if  his  pres- 
ence at  one  time  and  place  be  a  fault  or  wrong  on  his  part,  contribut- 
ing to  the  assault  and  robbery  in  the  nature  of  cause  to  effect,  it  must 
be  equally  so  at  every  other  time  and  place,  and  so  always  a  defence  in 
the  mouth  of  the  highwajonan.  Every  highwayman  must  have  his 
opportunity  by  the  passing  of  some  traveller,  and  so  some  one  must 
pass  over  a  rotten  and  unsafe  bridge  or  defective  highway  before  any 
accident  or  injury  can  happen  from  that  cause.  Connection,  there- 
fore, merely  in  point  of  time,  between  the  unlawful  act  or  fault  of 
the  plaintiff,  and  the  wrong  or  omission  of  the  defendant,  the  same 
being  in  other  respects  disconnected  and  independent  acts  or  events, 
does  not  suffice  to  establish  contributory  negligence  or  to  defeat  the 


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386  SUTTON  V.  TOWN  OF  WAUWATOSA  [CHAP.  II. 

plaintiff's  action  on  that  ground.  As  observed  in  Mohney  v.  Cook, 
such  connection,  if  looked  upon  as  in  any  sense  a  cause,  whether  sacred 
and  mysterious  or  otherwise,  clearly  falls  under  the  rule  causa  proxima 
non  remota  spedatur. 

"  The  cause  of  an  event,"  says  Appleton,  C.  J.,  in  Moulton  v.  San- 
ford,  51  Maine,  134,  "  is  the  sum  total  of  the  contingencies  of  every 
description,  which,  being  realized,  the  event  invariably  follows.  It  is 
rare,  iif  ever,  that  the  invariable  sequence  of  events  subsists  between 
one  antecedent  and  one  consequent.  Ordinarily  that  condition  is 
usually  termed  the  cause,  whose  share  in  the  matter  is  the  most  con- 
spicuous and  is  the  most  immediately  preceding  and  proximate  to  the 
event." 

In  the  present  case  the  weight  of  the  same  cattle,  upon  the  same 
bridge,  either  the  day  before  or  the  day  after  the  event  complained  of, 
when  the  plaintiff  would  have  been  guilty  of  no  violation  of  law  in 
driving  them,  would  most  unquestionably  have  produced  the  same  in- 
jurious result.  And  if,  on  that  day  even,  the  driving  had  been  a  work 
of  necessity  or  charity,  as  if  the  city  of  Milwaukee  had  been  in  great 
part  destroyed  by  fire,  as  Chicago  recently  was,  and  great  numbers  of 
her  inhabitants  in  a  condition  of  helplessness  and  starvation,  and  the 
plaintiff  hunying  up  his  drove  of  beef  cattle  for  their  relief,  no  one 
doubts  the  same  accident  would  then  have  happened,  and  the  same  in- 
juries have  ensued.  The  law  of  gravitation  would  not  then  have  been 
suspended,  nor  would  the  rotten  and  defective  stringers  have  refused 
to  give  way  imder  the  sujjerincmnbent  weight,  precisely  as  they  did  do 
on  the  present  occasion.  There  are  many  other  violations  of  law, 
which  the  traveller  or  other  person  passing  along  the  highway  may,  at 
the  time  he  receives  an  injury  from  a  defect  in  it,  be  in  the  act  of  com- 
mitting, and  which  are  quite  as  closely  connected  with  the  injury,  or 
the  cause  of  it,  as  is  the  violation  of  which  complaint  is  made  against 
the  present  plaintiff.  He  may  be  engaged  in  cruelly  beating  or  tortur- 
ing his  horse,  or  ox,  or  other  animal ;  he  may  be  in  the  pursuit  of  game, 
with  intent  to  kill  or  destroy  it,  at  a  season  of  the  year  when  this  is 
prohibited;  he  may  be  exposing  game  for  sale,  or  have  it  in  his  pos- 
session, when  these  are  imlawful;  he  may  be  in  the  act  of  committing 
an  assault,  or  resisting  an  officer;  he  may  be  fraudulently  passing  a 
toll  gate,  without  paying  his  toll;  and  he  may  be  unlawfully  setting 
or  using  a  net  or  seine,  for  the  purpose  of  catching  fish,  in  an  inland 
lake  or  stream. 

All  of  these  are  acts  prohibited  by  the  same  chapter  or  statute  in 
which  we  find  the  prohibition  from  work  and  labor  on  Sunday,  and 
some  of  them  under  the  same,  but  most  under  a  greater  penalty  than 
is  prescribed  for  that  offence,  thus  showing  the  character  or  degree  of 
culpability  which  was  variously  attached  to  them  in  the  opinion  of  the 
legislature.  And  there  are  many  other  minor  offences,  mala  prohibita 
merely,  created  by  statute,  which  might  be  in  like  manner  committed. 


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SECT.  Vni.]         SUTTON  V.  TOWN  OF  WAUWATOSA  387 

There  are  in  Massachusetts,  and  doubtless  in  many  of  the  States,  stat- 
utes against  blasphemy  and  profane  cursing  and  swearing,  the  preven- 
tion of  which  seems  to  be  equally  if  not  more  an  object  of  soUcitude 
and  care  on  the  part  of  the  legislature,  than  the  prevention  of  labor, 
travel,  or  other  secular  pursuits  on  Sunday,  because  more  severely 
punished.  It  has  not  yet  transpired,  we  believe,  even  in  Massa- 
chusetts, that  the  action  of  any  person  to  recover  damages  for  an 
injury  sustained  by  reason  of  defects  in  a  highway,  has  been  per- 
emptorily dismissed  because  he  was  engaged  at  the  time  in  profane 
cursing  or  swearing,  or  because  he  was  in  a  state  of  voluntary  intoxi- 
cation, likewise  prohibited  under  penalty  by  statute. 

It  is  obvious  that  the  breaking  down  of  a  bridge  from  the  rottenness 
of  the  timbers,  or  their  inability  to  sustain  the  weight  of  the  person  or 
of  his  horses  and  carriage,  could  not  be  affected  by  either  of  these  cir- 
cumstances, and  yet,  on  the  principle  of  the  decisions  above  referred 
to  in  that  State,  it  is  not  easy  to  see  why  the  action  must  not  be  dis- 
missed. On  principle  there  could  be  no  discrimination  between  the 
cases,  and  it  could  make  no  difference  in  what  the  unlawfid  act  of  the 
plaintiff  consisted  at  the  time  of  receiving  the  injury.  We  must  re- 
ject the  doctrine  of  those  cases  entirely  and  adopt  that  of  the  other 
cases  cited,  and  which  is  well  expressed  by  the  Supreme  Court  of 
Maine,  in  Baker  v.  Portland,  68  Maine,  199,  204,  as  follows:  "  The 
defendant's  counsel  contends  that  the  simple  fact  that  the  plaintiff  is 
in  the  act  of  violating  the  law,  at  the  time  of  the  injury,  is  a  bar  to 
the  right  of  recovery.  Undoubtedly  there  are  many  cases  where  the 
contemporaneous  violation  of  the  law  by  the  plaintiff  is  so  connected 
with  his  claim  for  damages  as  to  preclude  his  recovery:  but  to  lay 
down  such  a  rule  as  the  counsel  claims,  and  disregard  the  distinction 
in  the  ruling  of  which  he  complains,  woidd  be  productive  oftentimes 
of  palpable  injustice.  The  fact  that  a  party  plaintiff  in  an  action  of 
this  description  was  at  the  time  of  the  injury  passing  another  way- 
farer on  the  wrong  side  of  the  street,  or  without  giving  him  half  the 
road,  or  that  he  was  travelling  on  runners  without  bells,  in  contraven- 
tion of  the  statute,  or  that  he  was  smoking  a  cigar  in  the  street,  in 
violation  of  mimicipal  ordinance,  while  it  might  subject  the  offender 
to  a  penalty,  will  not  excuse  the  town  for  a  neglect  to  make  its  way 
safe  and  convenient  for  travellers,  if  the  commission  of  the  plaintiff's 
offence  did  not  in  any  degree  contribute  to  produce  the  injury  of 
which  he  complains." 

Strong  analogy  is  afforded  and  much  weight  and  force  of  reason 
bearing  upon  this  question  are  found  in  some  of  the  cases  which  have 
arisen  upon  life  policies,  and  as  to  the  meaning  and  effect  to  be  given 
to  the  condition  usually  contained  in  them,  exempting  the  company 
from  liability  in  case  the  assured  "  shall  die  in  the  known  violation  of 
any  law,"  Ac,  and  it  has  been  held  that  the  violation  must  be  such  as 
is  calculated  to  endanger  life,  by  leading  to  acts  of  violence  against. 


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388  STEELE  V.  BURKHAHDT  [CHAP.  II. 

or  to  the  bodily  or  persooal  injury  or  exposure  of,  the  assured,  and  so 
to  operate  in  producing  his  death  in  the  connection  of  cause  to  effect. 
See  opinions  in  Bradley  v.  Mutual  Benefit  Life  Ins.  Co.,  45  N.  Y. 
422. 

In  the  case  of  Clemens  v.  Clemens,  recently  decided  by  this  Court, 
it  became  necessary  to  consider  the  same  question,  though  under  dif- 
ferent circumstances,  as  to  what  violation  of  law  on  the  part  of  the 
plaintiff  would  bar  his  action  in  a  Court  of  justice  and  leave  him 
remediless  in  the  hands  of  an  overreaching  and  dishonest  antagonist, 
and  the  views  there  expressed  are  not  without  their  relevancy  and 
adaptation  to  the  question  as  here  presented.  In  that  case,  this  Court 
adopted  the  rule  of  law  as  settled  in  Massachusetts,  favoring  the  rem- 
edy of  the  plaintiff,  against  the  opposite  rule  sustained  by  tiie  adjudi- 
cations in  some  of  the  other  States,  and  consistency  of  decision  seems 
now  clearly  to  require  that  our  action  should  be  reserved  with  respect 
to  the  rule  established  by  the  cases  here  referred  to.  The  inconsistency 
upon  general  principle  between  these  decisions  of  the  same  learned 
Court  and  those  there  reUed  upon  and  adopted,  will,  we  think,  be 
readily  perceived  and  conceded  when  carefully  examined  and  con- 
sidered in  connection  with  each  other. 

Judgment  reversed,  and  a  venire  de  novo  awarded.^ 


STEELE  V.  BURKHARDT 
Supreme  Judicial  Court,  Massachusetts,  March,  1870. 
Reported  in  104  Massachusetia  Reports,  59. 

Tort  for  injury  alleged  to  have  been  caused  to  the  plaintiffs'  horse 
by  the  negligence  of  the  defendant's  servant;  submitted  to  the  judg- 
ment of  the  Superior  Court,  and,  on  appeal,  of  this  Court,  upon  the 
following  award  of  an  arbitrator  as  upon  a  statement  of  agreed 
facts:  — 

"  I  find  that  the  injury  to  the  plaintiffs'  horse,  for  which  they  seek 
to  recover  damages  in  this  action,  was  occasioned  by  the  n^igence 
and  want  of  due  care  of  the  defendant's  servant,  then  in  the  employ- 
ment of  the  defendant.    At  the  time  of  the  injury,  the  plaintiffs' 

'  Atlanta  Steel  Co.  v.  Hughes,  136  Ga.  611  (plaintiff  working  on  Sunday): 
Black  V,  Lewiston,  2  Idaho,  276;  Louisville  R.  Co.  v.  Buck.  116  Ind.  666  (plaintiff 
working  on  Sunday);  Chicago  R.  Co.  v,  Graham,  3  Ind.  App.  28:  Scnmid  v. 
Humphrey,  48  la.  662;  Taylor  v.  Star  Coal  Co.,  110  la.  40  (plaintiff  working  on 
Sunday);  City  v.  Orr,  62  Kan.  61;  Illinois  R.  Co.  v.  Dick,  91  Ky.  434  (plaintiff 
working  on  Sunday);  Opsahl  v,  Judd,  30  Minn.  126;  Corey  v,  Bath,  36  N.  H.  630; 
Delaware  R.  Co.  v.  Trautwein,  62  N.  J.  Law,  169;  Platz  v.  City,  89  N.  Y.  219; 
Mohney  v.  Cook,  26  Pa.  St.  342;  Baldwin  v,  Barney,  12  R.  I.  392;  Hoadley  v. 
International  Paper  Co.,  72  Vt.  79  (plaintiff  working  on  Sunda^^)  Accord. 

In  Johnson  v.  Town  of  Irasburgh,  47  Vt.  28,  the  Supreme  Court  of  Vermont, 
while  agreeing  with  the  reasoning  in  Sutton  v,  Wauwato8a,on  the  question  of  causa- 


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SECT.  Vin.]  STEELE  V.  BURKHARDT  389 

wagon,  to  which  the  injured  horse  was  attached,  was  placed  in  Clin- 
ton Street  in  the  city  of  Boston,  by  the  plamtiflfs'  driver,  having  the 
care  of  the  wagon  for  the  loading  of  certain  articles,  the  weight  of 
which  in  each  and  every  package  thereof  was  less  than  five  hundred 
pounds;  and  the  wagon  was  then  wholly  or  in  part  backed  and  placed 
across  Clinton  Street,  and  thereby  the  plaintiffs  were  guilty  of  a  viola- 
tion of  an  ordinance  of  the  city,  which  provides  as  follows:  'And 
for  the  loading  or  unloading  of  any  dirt,  bricks,  stones,  sand,  gravel, 
or  of  any  articles,  whether  of  the  same  description  or  not,  the  weight 
of  which  in  any  one  package  shall  be  less  than  five  hundred  pounds, 
no  truck,  cart,  wagon,  sleigh,  sled,  or  other  vehicle  shall  be  wholly  or 
in  part  backed  or  placed  across  any  street,  square,  lane,  or  alley,  or 
upon  flag-stones  or  crossings  of  the  same,  but  shall  be  placed  length- 
wise, and  as  near  as  possible  to  the  abutting  stone  of  the  sidewalk  or 
footway;  and  any  owner  or  driver  or  other  person  having  the  care  of 
any  such  vehiclei  violating  either  of  the  provisions  of  this  section, 
shall  be  liable  to  a  fine  of  not  less  than  five  dollars,  nor  more  than 
twenty  dollars,  for  each  offence.'  It  is  in  evidence  that,  at  the  time 
of  the  injury,  there  was  sufficient  room,  with  proper  care,  for  the  de- 
fendant's team  to  pass  through  Clinton  Street  (a  greater  degree  of 
care  being  required  by  reason  of  the  position  of  the  plaintiffs'  team 
as  aforesaid,  but  not  greater  than  the  defendant  was  bound  to  use,  in 
my  judgment)  y  but  the  defendant's  servant,  in  passing  between  the 
plaintiffs'  horse  and  the  opposite  curl>etone,  ran  over  and  upon  the 
hoof  of  the  plaintiff's  horse,  with  a  heavy  team,  and  in  so  doing  was 
guilty  of  the  negUgence  which  I  report;  and  I  further  find,  that  the 
only  fault  upon  the  part  of  the  plaintiffs  is  the  fact  of  their  horse  and 
wagon  having  been  placed  against  the  curb  in  violation  of  the  city 
ordinance  above  mentioned. 

"  In  case  the  Court  shall  find,  under  the  foregoing  statement  of 
facts,  that  the  violation  hereinbefore  mentioned  of  said  ordinance,  on 
the  part  of  the  plaintiffs'  driver,  debarred  the  plaintiffs  from  maintain- 
ing their  action  for  damages,  my  award  would  be  judgment  for  the 
defendant  for  his  costs  of  court,  with  the  costs  of  this  reference; 

tion,  nevertheless  reached  the  same  result  as  in  Bosworth  v.  Swansey,  holding  that 
the  plaintifif  was  not  entitled  to  recover.  This  conclusion  was  arrived  at  upon 
abounds  which  were  not  discussed  in  the  above  Wisconsin  and  Massachusetts  cases. 
The  very  able  opinion  of  Ross,  J.,  upon  this  point  (47  Vt.  35-38),  may  be  sum- 
marized as  follows;  — 

The  liability  of  the  town  for  the  insufficiency  of  the  highway  is  purely  statutory. 
The  duty  to  travellers  imposed  by  the  statute  is  only  a  duty  to  that  class  of  travel- 
lers who  hifve  the  right  to  pass,  to  those  who  are  legally  travelling.  The  legislature 
did  not  intend  to  impose  a  duty  upon  towns  ''  in  behalf  of  a  person  who  was  for- 
bidden to  use  all  highways  for  the  purposes  of  travel,  and  at  a  time  when  he  was  so 
forbidden  to  use  them.  Can  he  be  a  traveller  within  the  purview  of  the  statute  who 
is  forbidden  to  travel  ?  *'  The  duty  and  liability  "  are  co-extensive  with  the  pur- 
poses for  which  persons  can  legitimately  use  the  highways,  and  no  greater. "  ' '  The 
plaintiff  when  injured  was  forbidden  by  law  to  use  the  highway,  and  by  reason 
thereof  the  defendant  town  owed  him  no  duty  to  provide  any  kmd  of  a  highway, 
and  therefore  was  under  no  liability  for  any  msurociency  in  any  highway. 


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390  STEELE  V.  BURKHABDT  [CHAP.  II. 

otherwise,  my  award  woyld  be  for  the  plaintiffs,  for  the  jum  of  $225 
and  their  costs  of  court." 

Chapman,  C.  J.  The  act  complained  of  by  the  plaintiffs  is,  that 
while  their  horse  was  standing  on  Clinton  Street,  the  defendant's 
servant,  while  driving  a  heavy  team  along  the  street,  carelessly  drove 
it  upon  the  hoof  of  the  plaintiffs'  horse,  and  injured  him.  The  award, 
which  the  parties  have  agreed  to  accept  as  a  statement  of  facts,  finds 
that  the  injury  was.  occasioned  by  ne^igence  and  want  of  due  care  in 
the  defendant's  servant.  The  terms  of  this  finding  imply  that  there 
was  no  negligence  on  the  part  of  the  plaintiffs,  which  contributed  to 
the  injury.  And  it  is  further  found  that,  though  the  plaintiffs'  team 
was  standing  there  in  violation  of  a  city  ordinance,  yet  there  was 
room  for  the  defendant's  team  to  pass  by,  using  due  care,  and  the 
only  fault  of  the  plaintiffs  consisted  in  the  violation  of  the  city  ordi- 
nance. It  is  not  found  that  this  violation  contributed  to  the  injury. 
It  is  said  by  Bigelow,  C.  J.,  in  Jones  v.  Andover,  10  Allen,  20,  that, 
"  in  case  of  a  collision  of  two  vehicles  on  a  highway,  evidence  that  the 
plaintiff  was  travelling  on  the  left  side  of  the  road,  in  violation  of 
the  statute,  when  he  met  the  defendant,  would  be  admissible  to  show 
negligence."  So  the  evidence  that  the  plaintiffs'  team  was  standing 
in  the  street  in  violation  of  a  city  ordinance  was  admissible  to  show 
negligence  on  their  part.  It  did  show  negligence  in  respect  to  keep- 
ing the  ordinance,  but  did  not  necessarily  show  negUgence  that  con- 
tributed to  the  injury.  And,  notwithstanding  this,  evidence,  it  was 
competent  to  the  arbitrator  to  find,  as  a  fact,  that,  towards  the  defend- 
ant, the  plaintiffs  were  guilty  of  no  negligence,  but  were  careful  to 
leave  him  ample  room  to  pass.  He  did  so  find  in  substance;  and  his 
finding  is  agreed  to  as  a  fact. 

A  collision  on  the  highway  sometimes  happens,  when  both  parties 
are  in  motion,  and  both  are  active  in  producing  it.  In  such  cases,  the 
plaintiff  must  prove  that  he  was  not  moving  carelessly.  But  the  col- 
lision sometimes  happens,  as  in  this  case,  when  the  plaintiffs'  team  is 
standing  still.  In  such  a  case,  he  must  prove  that  his  position  was 
not  so  carelessly  taken  as  to  contribute  to  the  collision.  The  fact  is 
here  found  that  it  was  not  so  taken,  though  it  was  in  violation  of  the 
ordinance.  There  was  therefore  no  such  negligence  on  his  part  as  to 
defeat  the  actioni 

Actions  founded  on  negligence  are  governed  by  a  plain  principle. 
The  plaintiffs'  declaration  alleges  that  the  injury  happened  in  conse- 
quence of  the  negligence  of  the  defendant.  This  is  held  to  imply  that 
there  was  no  negligence  on  the  part  of  the  plaintiff  which  contributed 
to  the  injury;  and  to  throw  upon  him  the  burden  of  proving  the  truth 
of  the  allegation.  It  may  depend  upon  care  exercised  by  himself  per- 
sonally, or  by  his  coachman,  if  he  is  riding;  or  b#r  his  teamster,  in  his 
absence;  or  by  the  person  in  charge  of  him,  if  he  is  an  invalid,  or  an 
infant  of  tender  years,  or  in  any  way  so  situated  as  to  need  the  care 


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SECT.  Vni.]       NEWCOMB  V.  BOSTON  PROTECTIVE  DEPT.  391 

of  another  person  in  respect  to  the  matter.  Jf  there  was  want  of  care, 
either  on  the  part  of  himself  or  the  person  acting  for  him,  and  the 
injmy  is  partly  attributable  directly  to  that  cause,  he  cannot  recover, 
simply  because  he  cannot  prove  what  he  has  alleged.  Among  the 
numerous  cases  sustaining  this  view  are,  Parker  v.  Adams,  12  Met. 
415;  Horton  v.  Ipswich,  12  Cush.  488;  Holly  v.  Boston  Gas  Light 
Co.,  8  Gray,  131;  Wright  v.  Maiden  &  Melrose  Railroad  Co.,  4  Allen ; 
283;  Callahan  v.  Bean,  9  Allen,  401. 

But  it  is  further  contended  that  these  plaintiffs  are  compelled  to 
prove  theur  own  violation  of  law  in  order  to  establish  their  case,  and 
therefore  the  action  cannot  be  maintained.  The  substance  of  the  ordi- 
nance referred  to  is,  that  for  loading  and  unloading  packages  weigh- 
ing less  than  five  himdred  pounds,  wagons  shall  stand  lengthwise  of 
streets,  and  not  crosswise,  under  a  prescribed  penalty.  The  plaintiffs 
were  loading  packages  of  less  wei^t,  and  their  wagon  was  standing 
crosswise  of  the  street.  But  proof  of  the  weight  of  these  packages  was 
not  necessary.  In  this  respect  the  case  is  like  that  of  Welch  v.  Wes- 
son, 6  Gray,  505,  where  the  plaintiff  was  injured  while  he  was  trotting 
his  horse  illegally.  It  is  unlike  the  cases  of  Gregg  v.  Wyman,  4  Cush. 
322,  and  Way  v.  Foster,  1  Allen,  408,  which  were  decided  in  favor  of 
the  defendant  upon  the  ground  that  the  plaintiff  was  obliged  to  lay 
the  foundation  of  his  action  in  his  own  violation  of  law.  Even  in 
those  cases,  the  violation  of  law  by  the  plaintiffs  would  not  have  jus- 
tified an  assault  and  battery  or  a  false  imprisonment  of  the  plaintiffs. 
In  this  case,  if  the  packages  had  weighed  more  than  five  hundred 
pounds,  the  position  of  the  team  would  have  been  the  same.  In 
Spofford  V.  Harlow,  3  Allen,  176,  it  was  held  that,  though  the  plam- 
tiff's  sleigh  was  on  the  wrong  side  of  the  street,  in  violation  of  law, 
the  defendant  was  liable,  if  his  servant  ran  into  the  plaintiff  carelessly 
.and  recklessly,  the  plaintiff's  negligence  not  contributing  to  the  injury. 
And  it  is  true  generally,  that  while  no  p)erson  can  maintain  an  action 
to  which  he  must  trace  his  title  through  his  own  breach  of  the  law, 
yet  the  fact  that  he  is  breaking  the  law  does  not  leave  him  remediless 
for  injuries  wilfully  or  carelessly  done  to  him,  and  to  which  his  own 
conduct  has  not  contributed.  Judgment  for  the  plaintiffs. 


NEWCOMB  V.  BOSTON  PROTECTIVE  DEPARTMENT 

Supreme  Judicial  Court,  Massachusetts,  January  25, 1888. 

Reported  in  146  MasaachuseUs  ReportSy  596. 

Tort  for  personal  injuries  occasioned  to  the  plaintiff,  a  cab-driver, 
by  a  collision  between  the  cab  and  a  wagon  of  the  defendant. 

At  the  trial  in  the  Superior  Court,  before  Blodgett,  J.,  evidence  was 
introduced  tending  to  show  that  the  defendant  was  incorporated 


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392  NEWCOMB  V.  BOSTON  PROTECTIVE  DEPT.         [CHAP.  H. 

under  the  St.  of  1874,  e.  61,^  for  the  protection  of  life  and  property  at 
fires  in  the  city  of  Boston,  and  that  the  collision  occurred  while  one  of 
its  wagons,  with  its  regular  complement  of  men,  was  responding  to  a 
fire  alarm;  that  the  wagon  was  proceeding  along  Washington  Street  in 
a  northerly  direction;  that  the  cab,  upon  which  the  plaintiff  was 
sitting,  was  one  of  several  cabs  standing  in  a  line  upon  the  easterly 
side  of  Washington  Street  between  the  easterly  track  of  a  street  rail- 
way and  the  curbstone;  that  the  plaintiff's  cab  and  horse  were  not 
drawn  up  lengthwise  of  the  street  and  as  near  as  possible  to  the  curb- 
stone, but  that  the  horse  was  facing  the  sidewalk  at  an  angle  so  that 
the  body  of  the  cab  projected  eighteen  or  twenty  inches  into  the  street 
beyond  the  line  of  the  other  cabs;  and  that  the  wagon  of  the  defend- 
ant was  driven  negligently  into  the  cab,  causing  the  accident. 
The  defendant  asked  the  judge  to  instruct  the  jury  as  follows:  — 
"1.  If  the  plaintiff,  at  the  time  of  the  accident,  was  violating  the 
ordinance  of  the  city  of  Boston,  to  wit, '  Every  owner,  driver,  or  other 
person  having  the  care  and  ordering  of  a  vehicle  shall,  when  stopping 
in  a  street,  place  his  vehicle  and  the  horse  or  horses  connected  there- 
with lengthwise  with  the  street,  as  near  as  possible  to  the  sidewalk/ 
that  was  an  imlawful  act,  and  he  cannot  recover  in  this  action.  2.  If 
that  unlawful  act  contributed  to  cause  the  alleged  injury,  the  plaintiff 
was  not  in  the  exercise  of  due  care,  and  therefore  he  cannot  maintain 
this  action.  3.  Under  section  3,  chapter  61,  of  the  Acts  of  1874, 
'  The  officers  and  men  of  the  Boston  Protective  Department,  with 
their  teams  and  apparatus,  shall  have  the  right  of  way,  while  going  to 
a  fire,  through  any  street,  lane,  or  alley  in  the  city  of  Boston,'  said 
defendant  is  not  liable  for  an  accident  caused  by  the  collision  of  one  of 
its  teams,  while  going  to  a  fire,  with  a  vehicle  standing  in  the  streets,  in 
violation  of  either  of  the  city  ordinances.  4.  If  the  plaintiff,  at  the 
time  of  the  action,  was  violating  the  ordinance  of  the  city  of  Boston, 
to  wit, '  Every  driver  of  a  vehicle  shall  remain  near  it  while  it  is  unem- 
ployed or  standing  in  a  street,  unless  he  is  necessarily  absent  in  the 
course  of  his  duty  and  business,  and  he  shall  so  keep  his  horse  or 
horses  and  vehicle  as  not  to  obstruct  the  streets,*  that  was  an  unlawful 
act,  and  he  cannot  recover  in  this  action.  5.  If  that  unlawful  act  con- 
tributed to  cause  the  alleged  injury,  the  plaintiff  was  not  in  the 
exercise  of  due  care,  and  therefore  he  cannot  maintain  this  action." 

The  judge  refused  to  give  these  instructions,  but  instructed  the  jury 
as  to  the  effect  of  a  violation  of  the  ordinance  as  to  the  position  of  a 

^  Section  3  of  this  statute  is  as  foUows:  — 

"  The  officers  and  men  of  the  Boston  Ptotective  Department,  with  their  teams 
and  apparatus,  shall  have  the  right  of  way,  while  going  to  a  fire,  throu^  any  street, 
lane,  or  alley  in  the  city  of  Boston,  subject  to  such  rules  and  regulations  as  the  city 
council  and  the  fire  commissioners  may  prescribe,  and  subject  also  to  the  rights  of 
the  Boston  Fire  Department:  and  any  violation  of  the  street  ri^ts  of  the  Boston 
Protective  Department  shall  be  punished  in  the  same  manner  as  is  provided  for  the 
pimishment  of  violations  of  the  rights  of  the  Boston  Fire  Department  in  chapter 
three  hundred  and  seventy-four  of  the  acts  of  eighteen  hundred  and  seventy- 
three." 


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SECT.  Vin.]  NEWCOMB  V.  BOSTON  PROTECTIVE  DEPT.  393 

vehicle  and  horse  while  standing  in  a  street,  stating  that  the  rule  was 
applicable  to  both  ordinances  as  follows:  — 

''  Bearing  in  mind  the  provision  of  the  regulation  as  to  the  position 
of  a  vehicle  when  not  in  motion,  I  instruct  you  as  to  the  law,  that  if, 
at  the  time  of  the  injury  to  the  plaintiff,  he  allowed  his  carriage  to 
stand  in  the  street  in  violation  of  this  ordinance,  such  violation  is  evi- 
dence of  negligence  on  his  part;  and,  if  such  negUgence  directly  con- 
tributed to  the  injury,  the  plaintiff  cannot  maintain  the  action.  It 
cannot  be  said,  as  matter  of  law,  that  the  fact  that  the  plaintiff  was 
violating  a  city  ordinance  necessarily  shows  negligence  that  contrib- 
uted to  the  injury.  Whether  the  position  of  the  plaintiff's  horse  and 
carriage,  in  violation  of  an  ordinance,  did  or  did  not  contribute  to  the 
injury,  is  a  question  of  fact  for  the  jury;  and  in  determining  this 
question,  the  jury  will  take  into  consideration  all  the  surroimding 
facts  and  circiunstances.  .  .  .  The  plaintiff  must  prove  that  his  posi- 
tion was  not  so  carelessly  taken  as  to  contribute  to  the  collision;  and 
the  fact  that  his  position  was  in  violation  of  the  ordinance  is  not  con- 
clusive proof  of  negligence  which  contributed  to  the  injury.  Or,  stat- 
ing the  general  rule  in  a  somewhat  different  form,  the  fact  that  the 
plaintiff  is  engaged  in  violating  the  law  does  not  prevent  him  from 
recovering  damages  of  the  defendant  for  an  injury  which  the  defend- 
ant could  have  avoided  by  the  exercise  of  ordinary  care,  unless  the 
imlawful  act  contributed  proximately  to  produce  the  injury.  ...  If, 
applying  these  rules,  you  are  of  the  opinion  that  there  was  no  negli- 
gence, in  other  words,  no  carelessness,  on  the  part  of  the  plaintiff, 
which  directly  contributed  to  the  injury,  then  the  plaintiff  is  entitled 
to  maintain  this  action,  if  he  proves  another  proposition;  and  as  to 
that,  the  burden  is  upon  him.  And  that  proposition  is,  that  the  de- 
fendant's servants,  in  the  care  and  management  of  this  wagon,  at  the 
time  the  plaintiff  was  injiu^,  were  negligent." 

The  jury  returned  a  verdict  for  the  plaintiff;  and  the  defendant 
alleged  exceptions. 

Knowlton,  J.  The  plaintiff  brought  his  action  to  recover  for  in- 
juries received  while  sitting  upon  his  cab,  from  the  negligent  driving 
of  a  wagon  against  it  by  a  servant  of  the  defendant  corporation.  There 
was  evidence  tending  to  show  that,  at  the  time  of  the  accident,  he  was 
violating  an  ordinance  of  the  city  of  Boston,  by  waiting  in  a  street 
without  placing  his  vehicle  and  horse  lengthwise  with  the  street,  as 
near  as  possible  to  the  sidewalk,  and  that  this  illegal  conduct  contrib- 
uted to  the  injury.  There  was  evidence  applicable  in  like  manner  to 
another  similar  ordinance,  which  requires  every  driver  of  a  vehicle 
standing  in  a  street  so  to  keep  his  horse  or  horses  and  vehicle  as  not 
to  obstruct  the  streets. 

As  to  the  alleged  violation  of  each  of  these  ordinances,  the  defend- 
ant asked  the  Coiut  to  instruct  the  jury  as  follows :  "  If  that  unlawful 
act  contributed  to  cause  the  alleged  injury,  the  plaintiff  was  not  in  the 


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394  NEWCOMB  V.  BOSTON  PROTECTIVE  DfePT.         [CHAP.  U. 

exercise  of  due  care,  and  therefore  he  cannot  maintain  this  action." 
The  presiding  judge  declined  to  give  this  instruction,  and  gave  none 
which  we  deem  to  be  equivalent  to  it.  He  instructed  the  jury  in  these 
words:  "  If,  at  the  time  of  the  injury  to  the  plaintiff,  he  allowed  his 
carriage  to  stand  in  the  street  in  violation  of  this  ordinance,  such 
violation  is  evidence  of  negligence  on  his  part;  and,  if  such  negligence 
directly  contributed  to  the  injury,  the  plaintiff  cannot  maintain  the  ac- 
tion. It  cannot  be  said,  as  matter  of  law,  that  the  fact  that  the  plain- 
tiff was  violating  a  city  ordinance  necessarily  shows  negligence  that 
contributed  to  the  injury."  In  another  part  of  the  charge  it  was 
indirectly  intimated  that,  if  the  plaintiff's  imlawful  act  contributed 
proximately  to  produce  the  injury,  he  could  not  recover,  but  it  was 
nowhere  expressly  stated. 

The  question  before  us  then  is,  whether  or  not  the  defendant  was 
entitled  to  this  instruction,  —  in  other  words,  whether,  if  the  plain- 
tiff's imlawful  act  contributed  to  cause  his  injury,  it  was  a  bar  to  his 
recovery,  or  merely  evidence  of  negligence  which  might  or  might  not 
bar  him,  according  to  the  view  which  the  jury  should  take  of  his  con- 
duct as  a  whole,  in  its  relation  to  the  accident. 

It  has  often  been  held  that  a  violation  of  law  at  the  time  of  an  acci- 
dent, by  one  connected  with  it,  is  evidence  of  his  n^ligence,  but  not 
conclusive.  Hanlon  v.  South  Boston  Horse  Railroad,  129  Mass.  310; 
Hall  V.  Ripley,  119  Mass.  135;  Damon  v.  Scituate,  119  Mass.  66. 
In  recent  times  a  large  nimiber  of  penal  statutes  have  been  enacted, 
in  which  the  legislature  has  seen  fit  to  pmiish  acts  which  are  not  mala 
in  8€,  and  sometimes  when  in  a  given  case  there  is  no  actual  criminal 
intent.  On  groimds  of  pubUc  poUcy,  laws  have  been  passed  imder 
which  a  person  is  boimd  to  know  the  facts  in  regard  to  the  subject 
with  which  he  is  dealing,  when  under  possible  circimistances  ignorance 
would  not  be  inconsistent  with  proper  care.  One  who  sells  milk  must 
know  that  it  is  not  adulterated.  An  imUcensed  person  must  know  that 
what  he  sells  is  not  intoxicating  liquor.  Conunonwealth  v.  Boynton, 
2  Allen,  160.  And  if  in  a  possible  case  he  trespasses  in  innocent  ig- 
norance, the  law  gives  him  no  relief.  He  can  only  appeal  to  the  sense 
ot  justice  and  the  discretion  of  the  public  authorities  to  save  him  from 
the  punishment  which  the  law  would  inflict.  It  is  obvious  that  in 
suits  for  negligence,  if  the  contributing  conduct  of  the  plaintiff  is  to 
be  considered  as  a  whole,  it  may  sometimes  be  foimd  that  he  has  not 
been  guilty  of  actual  negUgence  or  fault,  although  he  has  violated  the 
law.  One  element  of  his  action  may  be  neglect  of  a  duty  prescribed  by 
a  statute,  when  there  are  other  concurring  elements  which  show  that 
his  course  was  entirely  justifiable. 

As  a  general  rule,  in  deciding  a  question  in  relation  to  negligence, 
each  element  which  enters  as  a  factor  into  one's  act  to  give  it  character 
is  to  be  considered  in  connection  with  every  other,  and  the  result  is 
reached  by  considering  all  together.   But,  for  reasons  which  will  pres- 


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SECT.  Vin.]  NEWCOMB  V.  BOSTON  PROTECTIVE  DEPT.  395 

ently  appear,  illegal  conduct  of  a  plaintiff  directly  contributing  to  the 
occurrence  on  which  his  action  is  founded,  is  an  exception  to  this  rule. 
Such  ill^ality  may  be  viewed  in  either  of  two  aspects:  looking  at  the 
transaction  to  which  it  pertains  as  a  whole,  it  may  be  considered  as  a 
circumstance  bearing  upon  the  question  whether  there  was  actual  neg- 
ligence; or  looking  at  it  simply  in  reference  to  the  violated  law,  the 
act  may  be  tried  solely  by  the  test  of  that  law.  In  the  latter  aspect  it 
wears  a  hostile  garb,  and  an  inquiry  is  at  once  suggested,  whether  the 
plaintiff,  as  a  transgressor  of  the  law,  is  in  a  position  to  obtain  relief 
at  the  hand  of  the  law.  In  the  first  view,  the  illegal  conduct  comes 
within  the  general  rule  just  stated;  in  the  second,  it  does  not.  This 
distinction  has  not  always  been  observed.  A  plaintiff's  violation  of 
law  has  usually  been  discussed  in  connection  with  the  subject  of  due 
care. 

In  Bosworth  v.  Swansey,  10  Met.  363,  Chief  Justice  Shaw,  after  re- 
ferring to  the  rule  that  a  plaintiff  must  be  free  from  "  imputation  of 
negUgence  or  fault,"  says,  in  reference  to  unlawful  travelling  on  the 
Lord's  day,  "  This  would  be  a  species  of  fault  on  his  part,  which  would 
bring  him  within  the  principle  of  the  cases  cited." 

In  Jones  v.  Andover,  10  AUen,  18,  Chief  Justice  Bigelow  says, 
"  The  term  '  due  care,'  as  usually  imderstood,  in  cases  where  the  gist 
of  the  action  is  the  negligence  of  the  defendant,  implies  not  only  that 
a  party  has  not  been  negligent  or  careless,  but  that  he  has  been  guilty 
of  no  violation  of  law  in  relation  to  the  subject-matter  or  transaction 
which  constitutes  the  cause  of  action." 

In  Steele  v.  Burkhardt,  104  Mass.  59,  an  action  for  negligence  in 
driving  against  the  plaintiffs'  horse,  which  was  left  standing  in  a  street 
in  violation  of  an  ordinance.  Chief  Justice  Chapman  considers  the 
general  subject  of  the  plaintiffs'  due  care,  and  then  treats  particularly 
the  contention  of  the  defendant  that  the  plaintiffs  were  compelled  to 
prove  their  violation  of  law  in  order  to  establish  their  case. 

McGrath  v.  Merwin,  112  Mass.  467,  was  an  action  founded  on  the 
defendant's  alleged  negligence  in  starting  the  machineiy  of  a  mill, 
while  the  plaintiff  was  at  work  in  the  wheel-pit  making  repairs  on  the 
Lord's  day,  and  Mr.  Justice  Morton,  in  delivering  the  opinion,  deals 
with  the  case  solely  upon  the  principle  that  Courts  will  not  aid  a  plain- 
tiff whose  action  is  foimded  upon  his  own  illegal  act,  and  says,  "  The 
decisions  in  this  Conmionwealth  are  mmierous  and  imiform  to  the 
effect  that  the  plaintiff,  being  engaged  in  a  violation  of  law,  cannot 
recover,  if  his  own  illegal  act  was  an  essential  element  of  his  case  as 
disclosed  upon  all  the  evidence."  He  further  states  the  rule  in  such 
cases  to  be,  that,  "  if  the  illegal  act  of  the  plaintiff  contributed  to  his 
injury,  he  cannot  recover;  but  though  the  plaintiff  at  the  time  of  the 
injury  was  acting  in  violation  of  law,  if  his  illegal  act  did  not  contrib- 
ute to  the  injury,  but  was  independent  of  it,  he  is  not  precluded 
thereby  from  recovering. " 


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396  NEWCOMB  V.  BOSTON  PROTECTIVE  DEPT.         [CHAP.  II. 

In  Davis  v.  Guarnieri,  45  Ohio  St.  470,  Owen,  C.  J.,  states,  as  the 
second  of  three  considerations  upon  which  the  doctrine  of  contributory 
negligence  is  founded,  "  the  principle  which  requires  every  suitor  who 
seeks  to  enforce  his  rights  or  redress  his  wrongs  to  go  into  court  with 
clean  hands,  and  which  will  not  permit  him  to  recover  for  his  own 
wrong." 

No  case  has  been  brought  to  our  attention,  and  upon  careful  investi- 
gation we  have  found  none,  in  which  a  plaintiff  whose  violation  of  law 
contributed  directly  and  proximately  to  cause  him  an  injury  has  been 
permitted  to  recover  for  it;  and  the  decisions  are  numerous  to  the  con- 
trary. Hall  V.  Ripley,  119  Mass.  135;  Banks  v.  Highland  Street 
Railway,  136  Mass.  485;  Tuttle  v.  Lawrence,  119  Mass.  276,  278; 
Lyons  v.  Desotelle,  124  Mass.  387;  Heland  v.  Lowell,  3  Allen,  407; 
Steele  v,  Burkhardt,  104  Mass.  59;  Damon  v.  Scituate,  119  Mass. 
66;  Marble  v.  Ross,  124  Mass.  44;  Smith  v.  Boston  4  Maine  Rail- 
road, 120  Mass.  490.  And  it  is  quite  immaterial  whether  or  not  a 
plaintiff's  unlawful  act  contributing  to  his  injury  is  negligent  or 
wrong  when  considered  in  all  its  relations.  He  is  precluded  from 
recovering  on  the  ground  that  the  Court  will  not  lend  its  aid  to  one 
whose  violation  of  law  is  the  foimdation  of  his  claim.  Hall  r.  Cor- 
coran, 107  Mass.  251. 

While  this  principle  is  universally  recognized,  there  is  great  prac- 
tical difficulty  in  applying  it.  The  best  minds  often  differ  upon  the 
question  whether,  in  a  given  case,  illegal  conduct  of  a  plaintiff  was  a 
direct  and  proximate  cause  contributing  with  others  to  his  injury,  or 
was  a  mere  condition  of  it;  or,  to  state  the  question  in  another  way, 
appropriate  to  the  reason  of  the  rule,  whether  or  not  his  own  illegal 
act  is  an  essential  element  of  his  case  as  disclosed  upon  all  the  evi- 
dence. Upon  this  point  it  is  not  easy  to  reconcile  the  cases.  It  has 
been  unanimously  decided  that  in  Gregg  r.  Wjmaan,  4  Cush.  322,  there 
was  error  in  holding  a  plaintiff's  iUegal  conduct  to  be  an  essential 
element  of  his  case,  when  in  fact  it  was  merely  incidental  to  it.  Hall 
V.  Corcoran,  uhi  supra.  But  whatever  criticisms  may  have  been  made 
upon  the  decisions  or  the  assimiptions  in  certain  cases,  that  illegal 
action  of  a  plaintiff  contributed  to  the  result,  or  was  to  be  treated  as  a 
concurring  cause,  or  upon  language  in  disregard  of  the  distinction 
between  a  cause  and  a  condition,  there  has  been  none  upon  the  doc- 
trine that,  when  a  plaintiff's- illegal  conduct  does  directly  contribute 
to  his  injury,  it  is  fatal  to  his  recovery  of  damages.  Baker  v,  Port- 
land, 58  Maine,  199;  Norris  v.  Litchfield,  35  N.  H.  271;  Sutton  v, 
Wauwatosa,  29  Wis.  21. 

The  plaintiff  reUes  with  great  confidence  upon  the  case  of  Hanlon  v. 
South  Boston  Horse  Raibx)ad,  129  Mass.  310,  in  which  the  presiding 
judge  at  the  trial  refused  to  rule,  that,  "  if  the  defendant  was  driving 
at  a  rate  of  speed  prohibited  by  the  ordinance  of  the  city  of  Boston, 
and  this  speed  contributed  to  the  injury,  this  fact  would  itself  consti- 
tute neghgence  on  the  part  of  the  defendant,  and  would  entitle  the 


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SECT.  VIII.]  NEWCOMB  V.  BOSTON  PROTECTIVE  DEPT.  397 

plaintiflf  to  recover  if  he  was  in  the  exercise  of  due  care,"  and  his  re- 
fusal was  held  right  by  this  Coiut.  In  giving  the  opinion,  after  point- 
ing out  that  driving  at  a  rate  of  speed  forbidden  by  the  ordinance 
might  have  occurred  without  fault  of  the  driver,  and  might  have  been 
justified  by  circumstances  authorizing  the  jury  to  find  that  there  was 
no  negligence,  Mr.  Justice  Colt  said,  "  It  is  not  true  that,  if  an  unlaw- 
ful rate  of  speed  contributed  to  the  injury,  that  alone  would  give  the 
plaintiff  a  right  to  recover,  if  he  was  without  fault.''  There  are  inti- 
mations, without  adjudication,  to  the  same  effect,  in  Wright  v.  Maiden 
&  Mehx)se  Raihoad,  4  Allen,  283,  and  in  Lane  v.  Atlantic  Works,  111 
Mass.  136.  See  also  Kirby  v.  Boylston  Market  Association,  14  Gray, 
249;  Heeney  v.  Sprague,  11  R.  I.  456;  Brown  v.  Buffalo  &  State 
Line  Raihoad,  22  N.  Y.  191;  Flynn  v.  Canton  Co.,  40  Md.  312. 

But  there  is  nothing  in  the  language  used  in  Hanlon  v.  South  Bos- 
ton Horse  Railroad  inconsistent  with  the  principle  which  we  have 
already  stated.  That  decision  related  to  the  liability  of  a  defendant. 
It  may  be,  where  a  penal  statute  does  not  purport  to  create  a  civil  lia- 
bility, or  to  protect  the  rights  of  particular  persons,  that  a  violation  of 
it  will  not  subject  the  violator  to  an  action  for  damages,  unless  his  act, 
when  viewed  in  connection  with  all  the  attendant  circumstances,  ap- 
pears to  be  negUgent  or  wrongful.  And  at  the  same  time  Courts  may 
well  hold  that,  in  the  sanctuary  of  the  law,  a  violator  of  law  imploring 
relief  from  the  consequences  of  his  own  transgression  will  receive  no 
favor. 

The  instruction  requested  in  the  case  at  bar  would  have  become  ap- 
plicable only  upon  a  finding  by  the  jury  that  the  plaintiff's  unlawful 
act  contributed  to  cause  the  injury.  The  jury  may  have  so  found; 
and  we  are  of  opinion  that  upon  such  a  finding,  irrespective  of  the 
question  whether  viewed  in  all  its  aspects  his  act  was  negligent  or  not, 
the  Court  could  not  properly  permit  him  to  recover.  The  instruction, 
therefore,  should  have  been  given. 

The  Court  rightly  refused  the  instruction  requested,  that  the  plain- 
tiff could  not  recover  if  at  the  time  of  the  accident  he  was  violating  the 
ordinance,  and  so  doing  an  unlawful  act.  This  request  ignored  the 
distinction  between  illegality  which  is  a  cause,  and  illegaUty  which  is 
a  condition  of  a  transaction  relied  on  by  a  plaintiff,  or  between  that 
which  is  an  essential  element  of  his  case  when  all  the  facts  appear,  and 
that  which  is  no  part  of  it,  but  only  an  attendant  circumstance.  The 
position  of  a  vehicle,  which  has  been  struck  by  another,  may  or  may 
not  have  been  one  of  the  causes  of  the  striking.  Of  course  it  could  not 
have  been  struck  if  it  had  not  been  in  the  place  where  the  blow  came. 
But  this  is  a  statement  of  an  essential  condition,  and  not  of  a  cause  of 
the  impact.  The  distinction  is  between  that  which  directly  and  prox- 
imately produces,  or  helps  to  produce,  a  result  as  an  efficient  cause, 
and  that  which  is  a  necessary  condition  or  attendant  circumstance  of 
it.  If  the  position  of  the  plaintiff's  vehicle  was  such  as,  in  connection 
with  ordinary  and  usual  concurring  causes,  would  naturally  produce 


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398  HEMMING  V.  CITY  OF  NEW  HAVEN  [CHAP.  U. 

such  an  accident,  that  indicates  that  it  contributed  to  it.  But  even  in 
that  case,  external  causes  may  have  been  so  exclusive  in  their  opera- 
tion, and  so  free  from  any  relation  to  the  position  of  the  vehicle,  as  to 
have  left  that  a  mere  condition,  without  agency  in  producing  the  re- 
sult. What  is  a  contributing  cause  of  an  accident  is  usually  a  question 
for  a  jury,  to  be  determined  by  the  facts  of  the  particular  case;  and 
such  it  has  been  held  to  be  in  many  cases  like  the  one  before  us. 
Damon  v.  Scituate,  119  Mass.  66;  Hall  v.  Ripley,  119  Mass.  135; 
Welch  V.  Wesson,  6  Gray,  505;  Spofford  v.  Harlow,  3  Allen,  176; 
White  V.  Lang,  128  Mass.  598;  Baker  v.  Portland,  58  Maine,  199; 
Norris  v.  Litchfield,  35  N.  H.  271;  Sutton  v.  Wauwatosa,  29  Wis.  21. 
The  defendant's  third  request  for  an  instruction  was  rightly  refused, 
for  reasons  which  have  already  been  stated.  The  statute  referred  to 
does  not  relieve  the  defendant  from  liabihty  for  negligence  to  a  plain- 
tiff whose  imlawf ul  act  or  want  of  due  care  does  not  contribute  to  his 
injury.   In  the  opinion  of  a  majority  of  the  Court  the  entry  must  be  — 

Exceptions  sustained.^ 


HEMMING  V.  CITY  OF  NEW  HAVEN 

SuPBEBiE  Court  op  Errors,  Connecticut,  January  4,  1910. 

Reported  in  82  Connecticut  Reports,  661. 

RoRABACK,  J.  On  September  21st,  1907,  Ley  &  Company,  electrical 
contractors,  were  constructing  a  conduit  on  Chapel  Street  in  New 
Haven,  under  a  contract  with  the  United  Illuminating  Company,  for 
the  purpose  of  laying  its  underground  sjrstem  of  wiring  in  said  high- 
way, and  for  that  purpose  had  caused  an  excavation  to  be  made  on 
Chapel  Street.  On  September  21st  an  automobile  owned  by  the  plain- 
tiff, and  driven  by  him  personally,  came  through  Temple  Street  in  a 
southerly  direction  and  ran  into  this  excavation,  causing  the  injuries 
described  in  the  complaint.  This  automobile  had  been  purchased  by 
the  plaintiff  on  July  27th,  1906,  of  one  Holcombe.  Prior  thereto 
the  plaintiff  had  owned  another  automobile,  which  was  duly  registered 
by  the  secretary  of  State,  pursuant  to  the  statute  then  in  force.  The 
plaintiff  had  not  made  application  to  the  secretary  of  State  for  regis- 
tration of  the  automobile  last  purchased,  until  September  2l8t,  1907, 
when  he  mailed  his  application,  enclosing  his  check  for  registration 
fee,  at  the  post-office  in  New  Haven,  to  the  secretary  of  State,  by 
whom  it  was  received  on  September  2i3d,  1907.  On  September  2iBth, 
1907,  a  certificate  of  registration  for  the  automobile  driven  by  the 
plaintiff  at  the  time  of  the  accident  was  issued  by  the  secretary  of 
State,  as  provided  for  by  law.  The  registration  mark  displayed  by  the 
plaintiff  at  the  time  of  the  accident  bore  the  number  which  had  been 

1  Monroe  v.  Hartford  R.  Co.,  76  Conn.  201;  Tackett  t^.  Taylor,  123  la.  149; 
Baker  v,  Portland,  58  Me.  199;  Bourne  t;.  Whitman,  209  Mass.  155;  Chesapeake 
R.  Co.  V.  Jennings,  98  Va.  70  Accord. 


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SECT.  VIII.]        HEAfMING  V.  CITY  OF  NEW  HAVEN  399 

assigned  to  him  as  the  owner  of  another  automobile  owned  by  him, 
and  which  had  been  disposed  of  prior  to  the  accident. 

The  reasons  of  appeal  relied  upon  are  that  the  court  erred  in  re- 
fusing to  charge  as  requested,  and  in  the  charge  as  given. 

The  defendant  requested  the  court  to  instruct  the  jury  as  follows: 
"  The  burden  of  proof  is  on  the  plaintiff  to  prove  by  a  preponderance 
of  the  evidence  that  at  the  time  of  the  accident  he  had  the  authority 
of  the  State  of  Connecticut  to  use  his  machine  on  the  highways  of  the 
State,  and  if  the  plaintifiF  does  not  prove  that  he  had  such  authority 
and  license,  he  cannot  recover,  and  your  verdict  should  be  for  the 
defendant.  If  at  the  time  of  the  accident  the  plaintiff  did  not  have 
the  authority  of  the  State  of  Connecticut  to  use  his  automobile  de- 
scribed in  the  complaint  on  the  highways  of  the  State,  he  cannot  re- 
cover and  your  verdict  should  be  for  the  defendant." 

The  court  declined  to  give  these  rulings,  but  instructed  the  jury 
that  the  plaintiff's  failure  to  register  would  not  of  itself  bar  his  right 
to  recover,  since  the  law  does  not  provide  that  one  who  fails  to  register 
his  automobile  cannot  make  use  of  it  upon  the  highway.  "  The  failure  . 
of  the  plaintiff  to  register  his  automobile  cannot  be  held  to  tend  to 
prove  contributory  negligence  on  the  part  of  the  plaintiff,  unless  you 
find  that  such  conduct  was  illegal,  and  that  it  directly  contributed  to 
the  accident  upon  which  this  case  is  founded;  that  is,  imless  you  find 
it  to  have  been  the  cause,  or  one  of  the  causes,  of  this  accident;  and 
no  such  claim,  that  is,  that  this  did  directly  contribute  to  the  accident, 
is  made  in  this  case  as  I  understand  the  contention  of  counsel." 

The  statute  relative  to  automobiles  then  in  force  (Public  Acts  of 
1907,  chap.  221,  pp.  821  to  828),  provides,  in  §  2,  for  the  registering 
of  automobiles  and  the  placing  of  numbers  on  machines  so  registered. 
The  penalty  to  any  person  having  failed  to  register  or  display  his 
number  was  not  more  than  SlOO,  or  imprisonment  not  more  than 
thirty  dajrs,  or  both. 

The  plaintiff  was  violating  the  statute  relating  to  the  registration 
of  automobiles,  but  that  fact  does  not  relieve  the  defendant.  This 
statute  imposed  an  obligation  upon  the  plaintiff  to  register  his  auto- 
mobile, and  for  its  violation  prescribed  a  penalty.  The  statute  goes  no 
further,  and  it  cannot  be  held  that  the  right  to  maintain  an  action  for 
damages  resulting  from  the  omission  of  the  defendant  to  perform  a 
public  duty  is  taken  away  because  the  person  injured  was  at  the  time 
his  injuries  were  sustained  disobeying  a  statute  law  which  in  no  way 
contributed  to  the  accident.  A  traveller  with  an  unregistered  and  un- 
numbered automobile  is  not  made  a  trespasser  upon  the  street,  neither 
does  it  necessarily  follow  that  the  property  which  he  owns  is  outside 
of  legal  protection  when  injured  by  the  imlawful  acts  of  another. 
"  There  is  some  real  and  more  apparent  conflict  of  opinion  in  the 
many  cases  treating  of  the  relation  between  an  illegal  act  and  a  coin- 
cident injury.  In  doing  an  unlawful  act  a  person  does  not  necessarily 
put  himself  outside  the  protection  of  the  law.    He  is  not  barred  of 


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400  HEMMING  V.  CITY  OP  NEW  HAVEN  [CHAP.  U. 

redress  for  an  injury  suffered  by  himself,  nor  liable  for  an  injury  suf- 
fered by  another,  merely  because  he  is  a  lawbreaker.  In  actions  to 
recover  for  injuries  not  intentionally  inflicted  but  resulting  from  a 
breach  of  duty  which  another  owed  to  the  party  injured  —  commonly 
classed  as  actions  for  negligence  —  the  fact  that  the  plaintiff  or  de- 
fendant at  the  time  of  the  injury  was  a  lawbreaker  may  possibly  be 
relevant  as  an  incidental  circumstance,  but  is  otherwise  immaterial 
unless  the  act  of  violating  the  law  is  in  itself  a  breach  of  duty  to  the 
party  injured  in  respect  to  the  injury  suffered."  Monroe  v.  Hartford 
Street  Ry.  Co.,  76  Conn.  201,  206,  56  Atl.  498. 

The  registration  of  the  plaintiff's  machine  was  of  no  consequence 
to  the  defendant.  His  failure  to  register  and  display  his  number  in  no 
way  contributed  to  cause  the  injury.  The  accident  would  have  hap- 
pened if  the  law  in  this  respect  had  been  fully  observed.  The  plains 
tiff's  unlawful  act  was  not  the  act  of  using  the  street,  but  in  making  a 
lawful  use  of  it  without  having  his  automobile  registered  and  marked 
as  required  by  law.  The  statute  contains  no  prohibition  against  using 
an  unlicensed  and  unnumbered  automobile  upon  the  highways  and 
streets  of  the  State. 

The  defendant  placed  much  reliance  upon  the  authority  of  Dudley 
V.  Northampton  Street  Ry.  Co.,  202  Mass.  443,  446,  89  N.  E.  25.  In 
that  case  the  Supreme  Court  of  Massachusetts  was  called  upon  to 
construe  the  effect  of  a  statute  which  provided  that  no  automobile 
should  be  operated  upon  any  public  highway  imless  it  was  registered, 
Ac.  Dudley,  the  plaintiff  in  that  action,  was  a  resident  of  Connecti- 
cut. He  had  fully  compUed  with  the  laws  of  Connecticut,  and  had  a 
right  to  operate  his  machine  on  the  highways  of  Massachusetts  for  a 
period  not  exceeding  fifteen  days.  After  being  in  Massachusetts  more 
than  fifteen  days,  Dudley's  automobile  collided  with  the  defendant's 
trolley-car.  The  Massachusetts  court  held  that  Dudley  was  a  tres- 
passer against  the  rights  of  all  persons  lawfully  controlling  or  using 
the  public  highways  of  Massachusetts. 

The  difference  between  the  Dudley  case  and  the  one  now  under  con- 
sideration is  that  in  Massachusetts  there  was  a  statutory  prohibition 
against  using  upon  the  highways  of  that  State  an  automobile  un- 
registered and  unmarked.  As  already  stated,  no  such  provisions  ap- 
peared in  the  Connecticut  statutes  which  were  in  force  when  the 
plaintiff's  automobile  was  injured. 

There  is  no  error. 

In  this  opinion  the  other  judges  concurred.* 

*  Atlantic  R.  Co.  v.  Weir.  63  Fla.  69;  Lockridge  v.  Minneapolis  R.  Co.,  161  la. 
74  Accord.  See  Lindsay  v.  Oecchi,  3  Boyce,  133;  Hyde  v.  McCreery,  145  App.  Div. 
729. 

In  Bourne  v.  Whitman,  209  Mass.  155,  a  duly  licensed  automobile  was  being 
driven  by  an  unlicensed  person.    Knowlton,  C.  J.,  said: 

/*  It  is  universally  recognized  that  the  violation  of  a  criminal  statute  is  evidence 
of  negligence  on  the  part  of  the  violator,  as  to  all  consequences  that  the  statute  was 
intended  to  prevent.  ,  It  has  been  said  in  a  general  way  that  such  a  violation  is 


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SECT.  VIII.]        HEMMING  V.  CITY  OF  NEW  HAVEN  401 

evidence  of  negligence  of  tfce  violator,  and  it  has  sometimes  been  stated  that  this 
would  show  negligence  that  can  be  availed  of  as  a  ground  of  recovery  by  one  who 
suffers  any  kind  of  an  injury  from  h\m  while  this  illegality  continues;  but  it  is  now 
settled  that  it  is  not  even  evidence  of  negligence,  except  in  reference  to  matters  to 
which  the  statute  relates^  Davis  v.  John  L.  Whiting  &  Son  Co..  201  Mass.  91,  96 
and  cases  cited.  A  crimmal  statute  in  the  usual  form  is  enactea  for  the  benefit  of 
the  public.  It  creates  a  duty  to  the  pubUc.  Every  member  of  the  public  is  covered 
by  the  protecting  influence  of  the  obligation.  If  one  suffers  injury  as  an  individual, 
in  his  person  or  his  property,  by  a  n^ect  of  this  duty,  he  has  a  remedy,  not  be- 
caiLse  our  general  cnminal  laws  are  divided  in  their  operation,  creating  one  dut^  to 
the  public  and  a  separate  duty  to  individuals;  but  because  as  one  of  the  pubhc  in 
a  peculiar  situation,  he  suffers  a  special  injuiy,  different  in  kind  from  that  of  the 
public  generally,  from  the  neglect  of  the  pubuc  duty.  .  .  . 

If  we  consider  the  effect  of  such  a  violation  of  law  by  a  plaintiff,  upon  his  right 
to  recover,  the  principles  that  have  been  recognized  are  instructive.  They  were 
considered  long  ago  in  connection  with  our  Sunday  law.  It  has  been  established 
from  early  times  that  one  who  is  violating  a  criminal  law  cannot  recover  for  an 
injury  to  which  his  criminality  was  a  directly  contributing  cause.  .  .  . 

The  only  matter  which  seems  to  be  left  doubtful  imder  our  decisions  in  this  class 
of  cases,  is  what  constitutes '  illegality,'  which  is  sometimes  a  directly  contributing 
cause  of  the  injury,  '^me  cases  have  been  decided,  which  seem  to  impl^r  that  if 
there  is  an  iUeeal  element  entering  into  a  plaintiff's  act  or  conduct,  and  tms  act  or 
conduct  directiy  contributes  to  his  injury,  he  cannot  recover,  although  the  iUe^ 
element  or  the  objectionable  quality  of  the  act  had  no  tendency  to  produce  the  m- 
jurjr,  and  the  consequences  would  have  been  the  same  under  the  other  existing  con- 
ditions,  if  the  criminal  element  had  been  absent.   In  other  cases  the  decision  seems  | 
to  turn  upon  whether  the  criminal  element  in  the  act  or  conduct,  considered  by  it-  \ 
self  alone,  operated  as  a  direct  cause  to  produce  a  result  that  would  not  have  been  \ 
produced  under  the  same  conditions  in  other  rpappnt^j  if  i\\Pt  rrim\j)A}  ftlftmftTif.  had  / 
bqen^bsent.   This  latter  seems  to  be  the  pivotal  question  in  most  cases  decided  in  I 
otherStates.  J 

The  fact  that  the  number  of  punishable  misdemeanors  has  multiplied  many  / 
times  in  recent  years,  as  the  relations  of  men  in  business  and  society  have  grown  I 
complex  with  the  increase  of  population,  is  a  reason  why  the  violation  of  a  cnminal  \ 
statute  of  s^ht  importance  should  not  affect  one's  civil  rights,  except  when  this  \ 
violation,  viewed  in  reference  to  the  element  of  criminality  intended  to  be  pun- 
ished, has  had  a  direct  effect  upon  his  cause  of  action.   Our  decisions  iseem  to  have 
been  tending  toward  the  adoption  of  such  a  rule.    Welch  v.  Wesson,  6  Gray,  505. 
Spofford  V,  Harlow,  3  Allen,  176.    Steele  v.  Burkhardt,  104  Mass.  59.    Damon  v. 
Scituate,  119  Mass.  66.    Hall  v.  Ripley,  119  Mass.  135.    Dudley  r.  Northampton 
Street  Railway,  202  Mass.  443,  446.    Moran  v.  Dickinson,  204  Mass.  559,  562. 
Chase  v.  New  York  Central  &  Hudson  River  Raihroad,  208  Mass.  137,  157. 

Under  particular  statutes,  we  are  brought  back  to  the  question,  what  is  the  legal 
element  which  is  the  essence  of  the  command  or  prohibition  ?  In  most  case^  the 
effect  of  doing  or  failing  to  do  that  which  the  law  forbids  or  requires  under  a 
penalty,  when  considered  in  reference  to  its  relation  to  one's  civil  rights  in  collateral 
matters,  ought  to  be  limited  pretty  strictly.  Take  the  case  of  driving  without 
slei^  bells  m  violation  of  the  law  of  the  road.  R.  L.,  c.  54,  §  3.  Kidder  v.  Dun- 
stable, 11  Gray,  342.  Counter  v.  Couch,  8  Allen.  436,  437.  The  requirement  of 
the  law  IS  that  '  No  person  shall  travel  on  a  bridge  or  way  with  a  sleigh  or  sled 
drawn  by  a  horse,  unless  there  are  at  least  three  bells  attached  to  some  part  of  the 
harness.^  The  wrong  to  be  prevented  is  the  failure  to  have  bells  while  travelling  in 
this  way.  The  travelling  in  other  respects  is  unobjectionable.  The  question 
arises  whether  the  act  should  be  deemed  illegal  as  a  whole,  in  reference  to  the  rule 
that  the  courts  will  not  aid  one  to  obtain  the  fruits  of  his  disobedience  of  law,  or 
whether  in  this  aspect  its  different  qualities  may  be  considered  separately.  It  is 
possible  to  decide  this  question  either  way,  but  we  think  it  is  more  consistent  with 
Justice  and  with  the  course  of  decision  elsewhere,  to  hold  that,  ir.  reference  to  the 
law  of  negligence  and  the  rule  as  to  rejection  of  causes  of  action  that  are  founded 
on  illegality,  an  act  may  be  considered  in  its  different  aspects  m  its  relation  to  the 
cause  of  action,  and  if  only  that  part  of  it  which  is  innocent  affects  the  cause  of 
action,  the  existence  of  an  illegal  element  is  immaterial.  We  do  not  think,  under 
this  statute,  that  one  who  drives  in  a  sleigh  without  bells  should  be  treated  as  a 


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402  HEMMING  V.  CITY  OF  NEW  HAVEN         [CHAP.  II. 

trespasser  on  the  highway,  although  he  is  punishable  criminally  for  the  failure  to 
have  the  bells  attached  to  the  harness,  and  is  Hable  in  damages  to  any  member  of 
the  public  who  sufifers  a  special  injury  by  reason  of  this  failure. 

Consider  the  St.  1909,  c.  514,  §  74,  which  forbids,  under  a  penalty,  the  regular 
operation  of  any  elevator  by  a  pierson  imder  the  age  of  sixteen  years,  and  the  regu- 
lar operation  of  any  rapidly  running  elevator  by  a  person  under  the  age  of  eighteen 
years.  If  a  person  under  the  prescribed  age,  while  employed  to  operate  an  elevator, 
IS  iniitfed  tlm)ugh  the  negligence  of  the  owner,  in  leaving  it  in  an  imsafe  condition, 
shall  his  violation  of  the  statute  by  entering  this  service  before  reaching  the  pre- 
scribed age,  be  treated  as  criminality,  entering  into  every  one  of  his  acts  in  moving 
the  elevator,  so  as  to  prevent  his  recoveiy  for  an  injury  from  the  joint  effect  of  his 
employer's  negligence  and  his  own  application  of  the  power  to  raise  or  lower  the 
elevator  ?  We  think  it  better  to  holcf,  if  his  age  and  the  degree  of  his  competency, 
which  might  depend  in  part  upon  his  age,  had  no  causal  connection  with  the  injury, 
that  his  crimmality  was  not  a  direct  cause  of  the  injury.  In  other  words,  that  the 
punishable  element  in  the  act  is  only  disobedience  as  to  age,  and  although  his  act  in 
applying  the  power  to  the  elevator  which  brought  him  in  contact  with  the  defect, 
is  punishable,  and  in  a  sense  illegal  because  of  the  existence  of  that  element,  in 
determining  the  relation  of  his  conduct  to  the  cause  of  action,  to  see  whether  the 
court  will  aid  him  in  the  prosecution  of  it,  we  ought  to  limit  the  illegality  to  that 
part  of  his  conduct  towards  which  the  statute  is  particularly  directed.  We  are  to 
consider  the  specific  thing  at  which  the  statute  is  aimed,  and  the  immediate  effect 
that  it  was  intended  directly  and  proximately  to  accomplish  by  its  command  or 
prohibition.  .  .  . 

Take  the  provision  in  St.  1903,  c.  473,  §  5,  that  '  No  person  shall  operate  an 
automobile  or  motot  cycle  for  hire,  unless  specially  licenseil  by  the  conmiission  so 
to  do,'  and  the  earlier  provision  in  the  same  section  that  no  person  shall '  operate 
an  automobile  or  motor  cycle  upon  any  public  highway  or  private  way  laid  out 
under  authority  of  statute  unless  licensed  so  to  do  under  the  provisions  of  this  act. 
The  operating  of  the  automobile  in  itself  is  unobjectionable.  The  illegal  element  in 
the  act  is  the  failure  to  have  a  license.  The  purpose  of  the  reauirement  of  a  license 
is  to  secure  competency  in  the  operator.  If  m  any  case  tne  failure  to  have  a 
license,  looking  to  those  conditions  that  ordinarily  accompany  the  failure  to  have 
it,  IB  a  cause  contributing  directly  to  an  injury,  a  violator  of  the  law  would  be 
legally  responsible  to  another  person  injured  by  the  failure;  or,  if  he  is  injured 
himself,  would  be  precluded  from  recovery  against  another  person  who  negligently 
contributed  to  the  injury.  But  we  are  of  opmion  that  his  failure  in  that  respect  is 
only  evidence  of  negugenoe  in  reference  to  his  fitness  to  operate  a'car,  and  to  his 
skill  in  the  actual  management  of  it,  unless  in  the  case  of  tne  plaintiff,  it  is  shown 
to  be  a  contributing  cause  to  the  injury  sued  for,  in  which  case  it  is  a  bar  to  recov- 
ery. We  think  that  the  operation  of  a  car  without  a  license^  while  it  is  a  punish- 
able act,  does  not  render  the  operator  a  trespasser  on  the  highway,  but  tnat  the 
illegal  element  in  the  act  is  only  the  failure  to  have  a  license  while  operating  it,  so 
that  if  the  operation  and  movement  contributed  to  the  accident  with  which  the 
want  of  a  license  had  no  connection,  except  as  a  mere  condition,  they  would  not 

Ereclude  the  operator  as  a  plaintiff  from  recovery.  If  the  illegal  qualitv  of  the  act 
ad  no  tendency  to  cause  tne  accident,  the  fact  that  the  act  is  punishable  because 
of  the  illegality,  oueht  not  to  preclude  one  from  recovery  for  humful  results  to 
which,  without  negugenoe,  the  innocent  features  of  the  act  alone  contributed. 

The  other  part  of  tnis  statute,  relative  to  the  licensing  of  automobile8,^as  been 
construed  differently.  In  Dudley  v.  Northampton  Street  Railway,  202  Mass.  443, 
because  of  the  peculiar  provisions  of  the  statute  and  the  dangers  and  evils  that  it 
was  intended  to  prevent,  it  was  decided,  after  much  consideration,  that  the  having 
of  such  a  machine  in  operation  on  a  street,  without  a  license,  was  the  very  essence 
of  the  illegality,  and  that  the  illegality  was  inseparable  from  the  movement  of  the 
automobile  upon  the  street  at  any  time,  for  a  smgle  foot;  that  in  such  movement 
the  machine  was  an  outlaw,  and  any  person  on  the  street  as  an  occupant  of  the 
automobile,  participating  in  the  movement  of  it,  was  for  the  time  being  a  trespas- 
ser. Some  of  us  were  disinclined  to  lay  down  the  law  so  broadly,  and  the  opinion 
of  the  court  was  not  unanimous;  but  the  doctrine  has  been  repeatedly  reaffirmed 
and  is  now  the  established  law  of  the  Commonwealth.  Feeiey  v.  Melrose,  205 
Mass.  329.  Chase  v.  New  York  Central  &  Hudson  River  Railroad,  208  Mass.  137, 
158.   The  difference  between  this  provision  of  the  statute  and  that  involved  in  the 


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SECT.  VIII.]         HEMMING  V.  CITY  OF  NEW  HAVEN  403 

present  case  is  in  part  one  of  form,  but  in  connection  with  the  form,  it  is  still  more 
the  seeming  purpose  and  intent  ot  the  Legislature  as  to  permitting  such  machines 
upon  the  i)UDlic  ways  without  adequate  means  of  identifying  ^hem  and  ascer- 
taining their  owner,  together  with  the  requirement  that  the  machine  itself,  as  a 
thine  of  power,  shall  have  its  own  registration  and  legalization,  the  evidence  of 
which  it  shall  always  carry  with  it.  .  .  . 

We  are  of  opinion  that  the  law  of  these  last  cases  should  not  be  extended  to  the 
provision  of  the  statute  requiring  every  operator  to  have  a  personal  license  to 
operate  the  car.  The  jury  should  have  been  instructed  that  the  defendant's  failure 
to  have  a  license  was  only  evidence  of  his  negligence  as  to  the  management  of  the 
car." 

See  also  Holland  v.  Boston,  213  Mass.  660;  Holden  v,  McGillicuddy,  213  Mass. 
663;  Conroy  v.  Mather,  217  Mass.  91. 

In  Taylor  v.  Stewart,  172  N.  C.  203,  Brown,  J.,  (for  the  court)  said: 

"  The  plaintiff  sues  to  recover  for  the  death  of  nis  child^  who  was  run  over  and 
killed  by  an  automobile,  belonging  to  the  defendant  J.  W.  Stewart.  At  the  time  the 
car  was  being  operated  by  James  Stewart,  the  son  of  the  said  J.  W.  Stewart,  a  lad 
of  13  years  of  a^.  A  colored  chauffeur,  who  had  been  sent  out  with  the  car  by 
the  owner,  was  sitting  beside  the  lad. 

His  honor  chtu-ged  the  jury  that  imder  the  laws  of  North  Carolina  it  was  a  mis- 
demeanor for  a  person  under  the  age  of  16  to  drive  an  automobile  upon  any  high- 
way or  public  street,  and  that  it  is  a  circunastance  from  which  the  jury  may  infer 
negligence,  and  that  it  does  not  necessarily  foUow  that  the  Jury  shall  conclude  it 
was  negligence,  but  that  it  is  a  circumstance  to  go  to  the  jury.  In  this  his  honor 
erred.  He  should  have  instructed  the  jury  that  it  is  neghgence  per  se  for  the  de- 
fendant James  Stewart  to  have  driven  the  machine  in  violation  of  the  statute  law 
of  the  state.  Zageir  v.  Southern  Express  Co.,  89  S.  E.  44;  Paul  v.  Railroad,  170 
N.  C.  231,  87  S.  E.  66,  L.  R.  A.  1916B,  1079;  Ledbetter  v.  English,  166  N.  C.  126, 
81  S.  E.  1066." 

See  Davis,  The  Plaintiff's  Illegal  Act  as  a  Defense  in  Actions  of  Tort,  18  Har- 
vard Law  Rev.  606;  Thayer,  Public  Wrong  and  Private  Action,  27  Harvard  Law 
Rev.  317, 


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CHAPTER  III 
UNINTENDED  NON-NEGLIGENT  INTERFERENCE 


Section  I 
Trespass  on  Land  by  Animals 

NOYES  V.  COLBY 

Supreme  Court,  New  Hampshire,  July  Term,  1855. 

Reported  in  30  New  Hampshire  Reports,  143. 

Trespass,  for  breaking  and  entering  the  plaintiff's  close  in  Franklin. 

Plea,  general  issue. 

The  plaintiff  proved  that  towards  night,  on  June  27,  the  defendant's 
cow  was  upon  his  premises  grazing,  between  his  house  and  stable. 
There  was  no  fence  between  his  land  and  the  highway. 

The  defendant  then  proposed  to  prove  that,  at  that  time  he  pas- 
tured his  cow  in  a  pasture,  on  the  road  to  Salisbury,  and  that  one 
Heath  also  pastured  his  cow  in  the  same  pasture.  On  the  evening  in 
question,  when  Heath  drove  home  his  own  cow,  he  also  let  the  defend- 
ant's cow  out  of  the  pasture.  He  did  this  without  the  knowledge  or 
assent  of  the  defendant,  and  without  any  authority,  and  had  never 
done  so  before,  and  after  this  transaction  was  requested  by  the  de- 
fendant not  to  do  so  again.  He  drove  the  cow  down  the  road  imtil 
she  came  to  the  point  where  it  connects  with  the  road  through  the 
village  of  Franklin,  about  two  hundred  feet  from  the  plaintiff's  land, 
when  she  strayed  along  the  road  and  committed  the  trespass  com- 
plained of. 

The  defendant  contended  that,  imder  such  circumstances  he  could 
not  be  held  to  be  a  trespasser  merely  from  the  fact  that  he  owned  the 
cow;  that  he  had  done  no  wrongful  or  improper  act;  that  the  act  of 
Heath,  being  without  his  knowledge  or  assent,  and  without  his  author- 
ity, could  not  make  him  liable  in  trespass;  that  the  action  should  not 
have  been  brought  against  him,  but  if  any  trespass  had  been  com- 
mitted, should  have  been  brought  against  Heath. 

There  being  no  dispute  about  the  facts,  the  Court  ruled  that  the 
action  could  not  be  maintained;  whereupon  a  verdict  was  taken  for 
the  defendant,  upon  which  judgment  was  to  be  rendered,  or  it  was  to 

404 


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SECT.  I.]  NOTES  V.  COLBY  405 

be  set  aside,  and  judgment  rendered  for  the  plaintiff  for  twenty-five 
cents  damages,  as  this  Court  might  order.* 

Woods,  C.  J.  "  A  man  is  answerable  for  not  only  his  own  tres- 
pass, but  that  of  his  cattle  also;  for  if  by  his  negligent  keeping  they 
stray  upon  the  land  of  another  (and  much  more  if  he  permits  or  drives 
them  on),  and  they  there  tread  down  his  neighbor's  herbage,  and  spoil 
his  com  or  his  trees,  this  is  a  trespass  for  which  the  owner  must  answer 
in  damages."  3  Black.  Com.  211.  Such  is  the  law  as  stated  in  the 
words  of  the  author  of  the  Conmientaries,  which  are  themselves  very 
high  authority  on  such  subjects,  and  such  has  been  the  uniform  prac- 
tice and  understanding  of  the  law  in  all  times,  so  far  as  the  books 
show,  and  it  is  therefore  too  late  to  inquire  whether  the  remedy  by  an 
action  of  trespass  is  foimded  upon  the  strictest  logical  propriety,  where 
the  cause  of  the  damage  is  the  negligence,  and  not  the  wilful  act  of 
the  owner  of  the  mischievous  beasts. 

It  is  hardly  necessary  to  remark,  but  for  the  course  of  the  defend- 
ant's argument,  that  the  proposition  quoted  from  Blackstone  relates 
to  the  case  in  which  the  beasts  "  stray  upon  the  land  of  another,"  and 
not  to  the  case  in  which  they  are  driven  upon  it  by  a  stranger;  for 
then  the  stranger  is.  the  author  of  the  wrong,  and  the  horse  that  he 
rides,  or  drives,  is  the  mere  passive  instrument  in  his  hands,  and  the 
owner  of  it,  unless  he  have  lent  it  for  the  purpose  of  the  wrong,  is  as 
wholly  guiltless  as  any  other  person.  For  in  that  case,  the  beast 
does  hot  by  the  owner's  negligent  keeping  stray  upon  the  land  of  his 
neighbors. 

It  is  substantially  upon  this  ground  that  Tewksbury  v.  Bucklin,  7 
N.  H.  Rep.  518,  was  decided;  in  which  it  was  held  that  a  party  having 
the  custody  of  the  cattle  was  answerable  for  the  trespass  which  they 
conmiitted  by  straying  upon  another's  inclosure. 

The  case  finds  that  the  cow  "  strayed  along  the  road,"  and  com- 
mitted the  act  complained  of.  It  would  not  be  just  to  hold  the  party 
to  the  strict  meaning  of  a  single  word,  if  it  appeared  by  the  context 
to  have  been  used  inaccurately;  but  it  appears  distinctly  that  the  ani- 
mal, although  driven  by  Heath  some  distance  from  the  pasture  in  the 
direction  of  the  locus  in  quo,  was  not  driven  upon  it  so  as  to  be  in  his 
hands  a  mere  instrument  for  committing  a  trespass.  Heath's  trespass 
was  upon  the  chattel  of  the  defendant,  but  not  upon  the  soil  of  the 
plaintiff.  He  abandoned  the  cow,  and  she  being  no  longer  in  his  cus- 
tody, "  strayed,"  and  involved  the  ownefr  in  the  consequences  ordi- 
narily incident  to  permitting  beasts  to  stray  into  the  inclosures  of 
others. 

When  Heath  abandoned  the  cow,  she  was  about  twelve  rods  from 
the  lands  of  the  plaintiff.  From  that  period  she  was  no  longer  under 
the  control  of  Heath,  but  was  again  in  the  legal  possession  of  the 
defendant,  and  under  his  general  custody  and  control;  and  like  other 

*  Part  of  case  omitted;  also  arguments  of  counsel. 


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406  TILLETT  V.  WARD  [CHAP.  III. 

owners  having  the  care  and  custody  of  their  beasts  at  the  time,  he  is 
answerable  in  trespass  for  her  act  in  straying  upon  the  close  in  ques- 
tion, and  grazing  there. 

For  misdirection  of  the  judge  who  tried  the  cause,  the  verdict  must . 
be  set  aside,  and  a  New  trial  granted.^ 


Beardsley,  C.  J.,  IN  TONAWANDA  R.  CO.  v.  MXJNGER 
(1848)  5  Denio,  255,  267-268. 

The  Court  seem  to  have  held  that  if  the  plaintiff's  oxen  escaped 
from  his  enclosure  after  the  exercise  of  "  ordinary  care  and  prudence 
in  taking  care  of  "  them,  he  was  not  responsible  for  their  trespass  on 
the  defendants'  land.  'This  view  of  the  law,  we  think,  cannot  be  sus- 
tained. The  plaintiff  was  bound  at  his  peril  to  keep  his  cattle  at  home, 
or  at  all  events  to  keep  them  out  of  the  defendants'  close,  and  no  de- 
gree of  "  care  and  prudence,"  if  the  cattle  foimd  their  way  onto  the 
defendants'  land,  would  excuse  the  trespass.  It  would  be  a  new  fea- 
ture in  the  law  of  trespass,  if  the  owner  of  cattle  could  escape  responsi- 
bility for  their  trespasses  by  showing  he  had  used."  ordinary,"  or  even 
extraordinary  "  care  and  prudence  "  to  keep  them  from  doing  mis- 
chief.* 

TILLETT  V.  WARD 

In  the  Queen's  Bench  Division,  November  27, 1882. 

Reported  in  Law  Reports,  10  Queen^s  Bench  Dwision,  17. 

Appeal  by  special  case  from  the  decision  of  the  judge  of  the 
County  Court  of  Lincolnshire,  holden  at  Stamford. 

The  action  was  to  recover  £1  for  the  damage  done  to  goods  in  the 
plaintiff's  shop. 

1  Williams  v.  New  Albany  R.  Co.,  5  Ind.  Ill;  Vandalia  R.  v.  Duling,  60  Ind. 
App.  332;  Union  R.  Co.  v.  Rollins.  5  Kan.  167  (as  to  legislation,  see  Darling  v. 
RodKers,  7  Kan.  592:  Missouri  R.  Co.  v.  Olden,  72  Kan.  110);  Crawford  v,  Hu^es, 
3  J.  J.  Marsh.  433;  Little  v,  Lathrop,  5  Me.  356:  Richardson  v.  Milbum.  11  Md. 
340;  Eames  v.  Salem  R.  Co.,  98  Mass.  560;  Collins  v.  Limdquist,  154  Mich.  658; 
Vandegrift  v,  Rediker,  22  N.  J.  Law,  185;  Munger  v.  Tonawanda  R.  Co.,  4  N.  Y. 
349;  Gregg  v.  Gregg.  55  Pa.  St.  227;  Hurd  v.  Rutland  R.  Co.,  25  Vt.  116;  Metro- 
politan Ins.  Co.  v.  Clark,  145  Wis.  181  Accord. 

As  between  adjoining  owners,  in  absence  of  statutory  duty  as  to  division  fence, 
see  Bissell  v,  Soutnwortn,  1  Root,  269;  McNeer  v.  Boone,  52  111.  App.  181;  Myers 
V.  Dodd,  9  Ind.  290;  Stephenson  v.  Elliott,  2  Ind.  App.  233;  De  Mers  t;.  Rohan, 
126  la.  488;  Markin  v.  Priddy,  40  Kan.  684;  Sturtevant  v.  Merrill,  33  Me.  62; 
Gillespie  v,  Hendren,  98  Mo.  App.  622;  Tewksbury  v.  Bucklin,  7  N.  H.  518;  Deyo 
V,  StewariL  4  Denio,  101 ;  Angell  v.  Hill,  18  N.  Y.  Supp.  824;  Kobayashi  v.  Strange- 
way,  64  Wash.  36. 

As  to  liability  of  the  ovmerfor  unauthorized  entry  of  a  dog  on  another's  lands, 
see  Brown  v.  Giles,  1  Carr.  &  P.  118;  Read  v,  Edwards,  17  C.  B.  n.  s.  245;  Doyle 
V.  Vance,  6  Vict.  L.  R.  (Law)  87. 

Trespass  on  unenclosed  land  by  chickens^  see  Evans  v.  McLalin,  189  Mo.  App.  310. 

«  Morgan  v,  Hudnell,  52  Ohio  St.  552  Accord. 


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SECT.  I.]  TILLETT  V.  WARD  407 

It  appeared  that  on  the  15th  of  May,  1882,  an  ox  of  the  defendant 
was  being  driven  from  the  live-stock  market  in  Broad  Street,  Stam- 
ford, along  a  public  street  called  Ironmonger  Street,  to  the  defendant's 
premises.  Ironmonger  Street  has  a  paved  carriage  road  with  a  foot 
pavement  on  either  side,  and  the  plaintiff  was  the  occupier  of  an 
ironmonger's  shop  in  the  street.  The  ox,  after  having  gone  for  some 
distance  down  the  paved  carriage  road  of  Ironmonger  Street,  driven 
by  the  defendant's  men,  went  for  a  short  distance  upon  the  foot  pave- 
ment on  the  near  or  left-hand  side,  and  was  driven  therefrom  by  one 
of  the  drovers  in  charge  on  to  the  carriage  road,  and  after  continuing 
for  a  farther  distance  upon  such  carriage  road,  turned  again  on  the 
pavement  about  twelve  yards  from  the  plaintiff's  shop,  and  continued 
upon  the  pavement  imtil  it  came  opposite  the  plaintiff's  shop,  when  it 
passed  through  the  open  doorway  into  the  shop  and  did  damage  to 
goods  therein  to  the  amount  claimed.  The  ox  was,  as  soon  as  possible 
after  such  entry  and  damage,  driven  by  the  defendant's  men  from  the 
shop  to  the  carriage  road  and  to  defendant's  premises  in  another 
street;  but  they  did  not  succeed  in  getting  it  out  until  about  three- 
quarters  of  an  hour  from  the  time  when  it  entered.  No  special  act  of 
negligence  was  proved  on  the  part  of  the  persons  in  charge  of  the  ox, 
and  there  was  no  evidence  that  it  was  of  a  vicious  or  imruly  natiu^,  or 
that  the  defendant  had  any  notice  that  there  was  an3rthing  exceptional 
in  its  temper  or  character,  or  that  it  would  be  imsafe  to  drive  it 
through  the  public  streets  in  the  ordinary  and  usual  way.  It  was 
proved  that  at  the  time  the  ox  left  the  carriage-way  the  second  time, 
one  of  the  two  men  of  the  defendant  in  charge  of  the  animal  was 
walking  by  its  side,  having  his  hand  upon  it,  and  that  the  other  man 
was  walking  about  three  yards  in  the  rear  of  it.  The  two  men  in 
charge  proved  that  they  drove  it  unaccompanied  by  other  cattle  from 
the  market,  and  they  both  declared  that  they  did  all  they  could  under 
the  circumstances  to  prevent  it  going  on  to  the  foot  pavement  and 
entering  the  open  doorway  of  the  plaintiff's  shop,  and  they  stated 
that  the  movement  of  the  ox  from  the  carriage-way  on  to  the  foot 
pavement  was  sudden  and  could  not  by  any  reasonable  or  available 
means  have  been  prevented.  It  was  alleged  by  the  defendant's  wit- 
nesses, and  not  contradicted,  that  it  was  a  usual  thing  for  several  oxen 
to  be  driven  from  the  Stamford  market  in  charge  of  two  men,  and 
sometimes  one  man.  It  was  admitted  that  it  was  not  customary  to 
drive  oxen  with  halters,  and  that  they  would  probably  not  go  quietly 
if  led  by  halters. 

The  County  Court  judge  gave  a  verdict  for  the  amoimt  claimed, 
giving  the  defendant  leave  to  appeal. 

The  question  for  the  opinion  of  the  Court  was,  whether  upon  the 
facts  the  plaintiff  was  entitled  to  the  verdict.^ 

*  Arguments  omitted. 


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408  TILLETT  V.  WARD  [CHAP.  III. 

Lord  Coleridge,  C.  J.  In  this  action  the  County  Court  judge  has 
found  as  a  fact  that  there  was  no  negligence  on  the  part  of  the  drivers 
of  the  ox,  or,  at  all  events,  he  has  not  found  that  there  was  negligence, 
and  as  it  lies  on  the  plaintiff  to  make  out  his  case,  the  charge  of  neg- 
ligence, so  far  as  it  has  any  bearing  on  the  matter,  must  be  taken  to 
have  failed. 

Now,  it  is  clear  as  a  general  rule  that  the  owner  of  cattle  and  sheep 
is  bound  to  keep  them  from  trespassing  on  his  neighbor's  land,  and  ii 
they  so  trespass  an  action  for  damages  may  be  brought  against  him, 
irrespective  of  whether  the  trespass  was  or  was  not  the  result  of  his 
negligence.  It  is  also  tolerably  clear  that  where  both  parties  are  upon 
the  highway,  where  each  of  them  has  a  right  to  be,  and  one  of  them  is 
injured  by  the  trespass  of  an  animal  belonging  to  the  other,  he  must, 
in  order  to  maintain  his  action,  show  that  the  trespass  was  owing  to 
the  negligence  of  the  other  or  of  his  servant.  It  is  also  clear  that 
where  a  man  is  injured  by  a  fierce  or  vicious  animal  belonging  to 
another,  that  prima  facie  no  action  can  be  brought  without  proof  that 
the  owner  of  the  animal  knew  of  its  mischievous  tendencies. 

In  the  present  case  the  trespass,  if  there  was  any,  was  conmiitted 
off  the  highway  upon  the  plaintiff's  close,  which  immediately  adjoined 
the  highway,  by  an  animal  belonging  to  the  defendant  which  was 
being  driven  on  the  highway.  No  negligence  is  proved,  and  it  would 
seem  to  follow  from  the  law  that  I  have  previously  stated  that  the 
defendant  is  not  responsible.  We  find  it  established  as  an  exception 
upon  the  general  law  of  trespass,  that  where  cattle  trespass  upon 
unfenced  land  immediately  adjoining  a  highway  the  owner  of  the  land 
must  bear  the  loss.  This  is  shown  by  the  judgment  of  Bramwell,  B., 
in  Goodwyn  v.  Cheveley,  28  L.  J.  (Ex.)  298.  That  learned  judge 
goes  into  the  question  whether  a  reasonable  time  had  or  had  not 
elapsed  for  the  removal  of  cattle  who  had  trespassed  under  similar 
circumstances,  and  this  question  would  not  have  arisen  if  a  mere 
momentary  trespass  had  been  by  itself  actionable.  There  is  also  the 
statement  of  Blackburn,  J.,  in  Fletcher  v.  Rylands,  L.  R.  1  Ex.  265, 
that  persons  who  have  property  adjacent  to  a  highway  may  be  taken 
to  hold  it  subject  to  the  risk  of  injury  from  inevitable  risk.  I  could 
not,  therefore,  if  I  were  disposed,  question  law  laid  down  by  such 
eminent  authorities,  but  I  quite  concur  in  their  view,  and  I  see  no  dis- 
tinction for  this  purpose  between  a  field  in  the  country  and  a  street  in 
a  market  town.  The  itccident  to  the  plaintiff  was  one  of  the  necessary 
and  inevitable  risks  which  arise  from  driving  cattle  in  the  streets  in  or 
out  of  town.  No  cause  of  action  is  shown,  and  the  judgment  of  the 
County  Court  judge  must  be  reversed. 

Stephen,  J.  I  am  of  the  same  opinion.  As  I  understand  the  law, 
when  a  man  has  placed  his  cattle  in  a  field  it  is  his  duty  to  keep  them 
from  trespassing  on  the  land  of  his  neighbors,  but  while  he  is  driving 
them  upon  a  highway  he  is  not  responsible,  without  proof  of  negli- 


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SECT.  I.]  COOLEY  ON  TORTS  409 

gence  on  his  part,  for  any  injury  they  may  do  upon  the  highway,  for 
they  cannot  then  be  said  to  be  trespassing.  The  case  of  Goodwyn  v. 
Cheveley,  sujyra,  seems  to  me  to  establish  a  further  exception,  that  the 
owner  of  the  cattle  is  not  responsible  without  negligence  when  the 
injury  is  done  to  property  adjoining  the  highway,  —  an  exception 
which  is  absolutely  necessary  for  the  conduct  of  the  conmion  affairs  of 
life.  We  have  been  invited  to  limit  this  exception  to  the  case  of  high 
roads  adjoining  fields  in  the  country,  but  I  am  very  unwilling  to 
multiply  exceptions,  and  I  can  see  no  solid  distinction  between  the 
case  of  an  animal  straying  into  a  field  which  is  unfenced  or  into  an 
open  shop  in  a  town.  I  think  the  rule  to  be  gathered  from  Goodwyn 
V.  Cheveley,  supra,  a  very  reasonable  one,  for  otherwise  I  cannot  see 
how  we  could  limit  the  liabihty  of  the  owner  of  the  cattle  for  any  sort 
of  injury  which  could  be  traced  to  them. 

Judgment  for  defendant.^ 


COOLEY  ON  TORTS,  2d  ed.,  398-400. 

The  statutes  which,  under  some  circumstances,  or  for  some  purposes,  re- 
quire lands  to  be  fenced  by  their  owners,  are  so  various  in  the  several  States 
that  it  is  not  easy  even  to  classify  them.  Some  of  them  provide  merely  that 
unless  the  owner  shall  cause  his  lands  to  be  fenced  with  such  a  fence  as  is 
particularly  described,  he  shall  maintain  no  action  for  the  trespasses  of  beasts 
upon  them.  These  statutes  are  generally  limited  in  their  force  to  exterior 
fences,  and  are  intended  as  a  part  of  a  system  imder  which  cattle  are  or  may 
be  allowed  to  depasture  the  highway.  In  some  States,  from  the  earliest  days, 
beasts  have  been  allowed  to  roam  at  large  in  the  highways  and  unenclosed 
lands,  either  by  general  law  or  on  a  vote  of  the  township  or  county  to  that 
effect;  a  futile  permission,  if  owners  of  lands  are  not  required  to  fence  against 
them.  A  more  common  provision  is  one  requiring  the  owners  of  adjoining 
premises  to  keep  up,  respectively,  one-half  the  partition  fence  between  them, 
this  being  apportioned  for  the  purpose  by  agreement,  by  prescription,  or  by 
the  order  of  fence-viewers.  A  neglect  of  duty  under  these  statutes  would  not 
only  preclude  the  party  in  fault  from  maintaining  suit  for  injuries  suffered  by 
himself  in  consequence  thereof,  but  it  would  seem  that  if  the  domestic  animals 
of  his  neighbor  should  wander  upon  his  lands,  invited  by  his  own  neglect,  and 
should  there  fall  into  pits,  or  otherwise  receive  injury,  he  would  be  responsible 
for  this  injury,  as  one  occurring  proximately  from  his  own  default.  The  stat- 
utes which  require  the  construction  of  partition  fences  do  so  for  the  benefit 
exclusively  of  the  adjoining  proprietors.  These  proprietors  may,  at  their  op- 
tion, by  agreement,  dispense  with  them,  and  even  if  they  do  not  agree  to  do  so, 
but  fan  to  maintain  them  as  the  law  contemplates,  stiU,  if  the  cattle  of  the 

>  Hartford  v.  Brady,  114  Mass.  466;  Wood  v.  Snider,  187  N.  Y.  28;  Erdman  v. 
Gottehall,  9  Pa.  Super.  Ct.  295;  Metropolitan  Ins.  Co.  v,  Clark,  145  Wis.  181 
Accord. 

Cattle,  whOe  being  driven  on  the  highway,  enter  on  the  unfenced  land  of  A  ad- 
joining the  highway,  and  pass  thence  on  to  the  unfenced  land  of  B,  adjoining  the 
land  <M  A,  but  not  adjoining  the  highway.  B  has  an  action  against  the  owner  of 
the  cattle.    Wood  t;.  Snider,  187  N.  Y .  28.    See  also  note  in  12  L.  R.  A.  n.  s.  912. 


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410  WAGNER  V.  BISSELL  [CHAP.  III. 

third  persons  come  wrongfully  upon  one  man's  lands,  and  from  there  enter  the 
adjoining  enclosure,  it  is  no  answer  to  an  action  of  trespass  brought  by 
the  owner  of  the  latter  that  the  partition  fence  provided  for  by  the  law  was  not 
maintained.^ 


WAGNER  V.  BISSELL 

SuPBEBCB  Court,  Iowa,  December  Term,  1856. 

Reported  in  3  lovoa  ReporU,  396. 

Appeal  from  the  Jones  District  Court. 

This  was  an  action  of  replevin  for  certain  cattle.  Defendant 
answered,  den3dng  the  plaintiff's  right  to  the  possession,  and  also 
alleging  as  a  special  ground  of  defence,  that  said  cattle  (which  he 
admits  to  be  the  property  of  plaintiff)  did  on  the  17th  day  of  August, 
1856,  trespass  upon  the  uninclosed  land  of  defendant,  and  while  so 
trespassing,  and  after  he  had  suffered  damage  to  the  amount  of  fifty 
dollars,  he,  said  defendant,  distrained  the  same,  as  he  had  a  right  to 
do;  and  while  thus  lawfully  distrained,  and  while  he  thus  rightfully 
had  the  possession,  the  said  plaintiff  replevied  the  said  cattle,  without 
pajdng,  or  offering  to  pay,  for  the  damages  sustained.  To  this  answer 
the  plaintiff  demurred,  which  was  sustained.  Defendant  refused  to 
answer  over,  and  judgment  being  against  him,  he  appeals.^ 

Wright,  C,  J.  [After  deciding  a  point  of  pleading.]  There  is  then 
but  one  question  in  the  case,  and  that  is,  whether  the  defendant,  for 
the  reasons  stated  in  his  answer,  was  entitled  to  the  possession  of  the 
property,  as  against  the  plaintiff  and  owner.  We  are  of  opinion  that 
he  was  not,  and  that  the  demurrer  was  therefore  properly  sustained. 

That  at  conmion  law,  every  man  was  bound  to  keep  his  cattle  within 
his  own  close,  under  the  penalty  of  answering  in  damage  for  all  inju- 

*  As  to  the  effect  of  statutes  requiring  lands  to  be  fenced,  see  Northern  R.  Co.  v. 
Cunningham,  89  Fed.  594 :  Comenord  v.  Dupuy,  17  Cal.  30S  (as  to  later  legislation 
see  Hahn  t;.  Garratt,  69  Cal.  146:  Fisch  v.  Nice,  12  Cal.  App.  60);  Nuckolls  v. 
Gaut,  12  Col.  361;  Wright  v.  Wright,  21  Conn.  329;  Frazier  v.  Nortinus,  34  la. 
82  (but  no  application  to  cultivatedland  —  Hallock  v.  Hughes,  42  la.  516) :  Louis- 
ville R.  Co.  V.  Simmons,  85  Ky.  151;  Gorman  r.  Pacific  R.  Co.,  26  Mo.  441  (as  to 
later  legislation,  see  O'Riley  v.  Diss,  41  Mo.  App.  184);  Smith  v.  Williams,  2  Mont. 
195;  Randall  v.  Gross,  67  Neb.  255  (no  apphcation  to  cultivated  lands);  Jones  v, 
Witherspoon,  52  N.  C.  555;  Kerwhaker  v.  Cleveland  R.  Co.,  3  Ohio  St.  172; 
Walker  v.  Bloommgcamp,  34  Or.  391;  Gregg  v.  Gregg,  55  Pa.  St.  227  (as  to  later 
legislation  see  Thompson  v,  Kyler,  9  Pa.  Co.  Ct.  R.  206);  Davis  v.  Davis,  70  Tex. 
123;  Poindexter  v.  May,  98  Va.  143;  Walls  v.  Cunningham,  123  Wis.  346. 

As  to  effect  of  statutes  providing  for  division  fences,  see  D'Arcy  v.  Miller.  86 
111.  102;  DufFees  v.  Judd,  48  la.  256;  Wills  v.  Walters,  5  Bush,  351:  Gooch  v. 
Stephenson,  13  Me.  371;  Shepherd  v.  Hees,  12  Johns.  433;  Barber  v.  Mensch,  157 
Pa.  St.  390;  Tower  v.  Providence  R.  Co.,  2  R.  I.  404. 

Such  statutes  applv  only  as  between  adjoining  owners:  Aylesworth  v.  Herring- 
ton,  17  Mich.  417;  Wilder  v.  Wilder,  38  Vt.  678;  and  as  to  cattle  lawfully  on  the 
adjoining  land:  Lord  v.  Wormwood,  29  Me.  282;  Vandegrift  v,  Rediker,  22  N.  J. 
Law,  185;  Melody  v,  Reab,  4  Mass.  471;  Lawrence  i;.  Combs,  37  N.  H.  331. 

'  Arguments  and  portions  of  the  opimon  omitted. 


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SECT.  I.]  WAGNER  V.  BISSELL  411 

lies  arising  from  their  being  abroad,  is  admitted  by  all.  And  a  part 
of  the  same  rule  is,  that  the  owner  of  land  is  not  boimd  to  protect 
his  premises  from  the  intrusion  of  the  cattle  of  a  stranger,  or  third 
person;  and  that  if  such  cattle  shall  intrude  or  trespass  upon  his 
premises,  whether  inclosed  or  not,  he  may,  at  his  election,  bring  his 
action  to  recover  the  damages  sustained,  or  distrain  such  trespassing 
animals,  until  compensated  for  such  injury.  We  need  not  at  present 
stop  to  ascertain  the  origin  or  reason  of  this  rule.  It  is  sufficient  to 
say,  that  as  a  principle  of  the  common  law,  it  is  well,  and  we  believe 
imiversally  settled.  We  are  then  led  to  inquire,  whether,  independent 
of  any  statutory  provisions,  this  rule  is  applicable  to  our  condition 
and  circumstances  as  a  people;  and  if  it  is,  then  whether  it  has  or  has 
not,  been  changed  by  legislative  action. 

Unlike  many  of  the  States,  we  have  no  statute  declaring  in  express 
terms  the  common  law  to  be  in  force  in  this  State.  That  it  is,  how- 
ever, has  been  frequently  decided  by  this  Court,  and  does  not,  perhaps, 
admit  of  controversy.  But  while  this  is  true,  it  must  be  understood 
that  it  is  adopted  only  so  far  as  it  is  applicable  to  us  as  a  people, 
and  may  be  of  a  general  nature.  At  this  time  we  need  only  dis- 
cuss the  question  whether  the  principle  contended  for  is  applicable; 
for  there  can  be  no  fair  groimd  for  claiming  that  it  is  not  of  a  general 
nature. 

We  have  assumed  that  it  is  only  so  much  of  the  common  law  as  is 
applicable  that  can  be  said  to  be  in  force,  or  recognized  as  a  rule  of 
action  in  this  State.  To  say  that  every  principle  of  that  law,  however 
inapplicable  to  our  wants  or  institutions,  is  to  continue  in  force,  until 
changed  by  some  legislative  rule,  we  believe  has  never  been  claimed, 
neither  indeed  could  it  be,  with  any  degree  of  reason.  What  is  meant 
however,  by  the  term  "  applicable,"  has  been  thought  to  admit  of 
some  controversy.  As  stated  by  Catron,  J.,  in  the  dissenting  opinion 
in  the  case  of  Seely  v.  Peters,  5  Gihn.  130,  "  Does  it  mean  applicable  to 
the  nature  of  our  political  institutions,  and  to  the  genius  of  our  repub- 
lican form  of  government,  and  to  our  Constitution,  or  to  our  domestic 
habits,  our  wants,  and  our  necessities  ?  "  He  then  maintains  that 
the  former  only  is  meant,  and  that  to  adopt  the  latter  is  a  clear  usurpa- 
tion of  legislative  power  by  the  courts.  A  majority  of  the  Court  held 
in  that  case,  however,  as  had  been  previously  decided  in  Boyer  v. 
Sweet,  3  Scam.  121,  "  that  in  adopting  the  common  law,  it  must  be 
applicable  to  the  habits  and  condition  of  our  society,  and  in  harmony 
with  the  genius,  spirit,  and  objects  of  our  institutions."  And  we  can 
see  no  just  or  fair  objection  to  this  view  of  the  subject.  Indeed,  there 
would  seem  to  be  much  propriety  in  saying  that  the  distinction  at- 
tempted is  more  speculative  than  practical  or  real.  For  what  is 
applicable  to  our  wants,  habits,  and  necessities  as  a  community  or 
state,  must  necessarily  to  some  extent  be  determined  from  the  nature 
and  genius  of  our  government  and  institutions.    Or,  in  other  words, 


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412  WAGNER  V.  BISSELL  [CHAP.  III. 

to  determine  whether  a  particular  principle  harmonizes  with  the  spirit 
of  our  institutions,  we  must  look  to  the  habits  and  condition  of  the 
society  which  has  created  and  lived  imder  these  institutions.  We  have 
adopted  a  republican  fonn  of  government,  because  we  believe  it  to  be 
better  suited  to  our  condition,  as  it  is  to  that  of  all  people,  —  and 
thereunder  we  believe  our  wants,  rights,  and  necessities,  as  individuals 
and  as  a  commimity,  are  more  likely  to  be  protected  and  provided  for. 
And  the  conclusion  would  seem  to  fairly  follow,  that  a  principle  or 
rule  which  tends  to  provide  for,  and  protect  our  rights  and  wants, 
would  harmonize  with  that  form  of  government  or  those  institutions 
which  have  grown  up  imder  it. 

But,  however  this  may  be,  we  do  not  beUeve  that  in  determining  as 
a  Court,  whether  a  particular  rule  of  the  unwritten  law  is  applicable, 
we  are  confined  alone  to  its  agreement  or  disagreement  with  our  pecul- 
iar form  of  government.  To  make  the  true  distinction  between  the 
rules  which  are,  and  are  not,  applicable,  may  be  frequently  embarrass- 
ing and  diflBcult  to  coiurts. 

Where  the  common  law  has  been  repealed  or  changed  by  the  con- 
stitutions of  either  the  States  or  national  government,  or  by  their  legis- 
lative enactments,  it  is,  of  course,  not  binding.  So  also,  it  is  safe  to 
say,  that  where  it  has  been  varied  by  custom,  not  founded  in  reason, 
or  not  consonant  to  the  genius  and  manners  of  the  people,  it  ceases 
to  have  force.  Bouvier's  Law  Diet.,  title  Law,  Common.  And  in 
accordance  with  this  position,  are  the  following  authorities:  "  The 
conmion  law  of  England  is  not  to  be  taken  in  all  respects  to  be  that  of 
America.  Our  ancestors  brought  with  them  its  general  principles,  and 
claimed  it  as  their  birthright;  but  they  brought  with  them  and 
adopted  only  that  portion  which  was  appUcable  to  their  situation." 
Van  Ness  v.  Packard,  2  Peters,  137.  And  see  other  remarks  of  the 
learned  judge,  in  dehvering  the  opinion  in  that  case,  page  143,  which 
have  a  bearing  upon  the  principal  question  involved  in  this. 

In  Goring  v.  Emery,  16  Pick.  107,  in  speaking  of  what  parts  of  the 
conmion  law  and  the  statutes  of  England  are  to  be  taken  as  in  force 
in  Massachusetts,  Shaw,  C.  J.,  says:  "  That  what  are  to  be  deemed 
in  force  is  oft«n  a  question  of  difficulty,  depending  upon  the  nature 
of  the  subject,  the  difference  between  the  character  of  our  institutions, 
and  our  general  course  of  poUcy,  and  those  of  the  parent  country,  and 
upon  fitness  and  usage."  And  in  The  Commonwealth  v.  Knowlton, 
2  Mass.  534,  it  is  said  that  "  our  ancestors,  when  they  came  into  this 
new  world,  claimed  the  common  law  as  their  birthright,  and  brought 
it  with  them,  except  such  parts  as  were  adjudged  inapplicable  to  their 
new  state  and  condition." 

In  Ohio  the  rule  is  laid  down  as  follows:  "  It  has  been  repeatedly 
decided  by  the  courts  of  this  State  that  they  will  adopt  the  principles 
of  the  common  law,  as  the  rule  of  decision,  so  far  only  as  those  prin- 
ciples are  adapted  to  our  circumstances,  state  of  society,  and  form 


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SECT.  I.]  WAGNER  V.  BISSELL  413 

of  government."  Lindsley  v.  Coats,  1  Ham.  243;  see  also  Penny  v. 
Little,  3  Scam.  301. 

Is  the  rule  of  the  conmion  law,  relied  upon  by  the  appellant  in  this 
ease,  appUcable  to  our  situation,  condition,  and  usage,  as  a  people  ? 
Is  it  in  accordance  with  our  habits,  wants,  and  necessities  ?  As 
applied  to  this  State,  is  it  founded  in  reason  and  the  fitness  of  things  ? 
The  legislature  has  certainly  not  so  regarded  it.  On  the  contrary,  we 
hope  to  be  able  to  show  that  what  legislation  we  have  clearly  recog- 
nizes the  opposite  rule.  At  present,  we  are  considering  the  question 
without  reference  to  any  legislative  interpretation  or  action. 

These  same  inquiries  were  substantially  discussed  in  the  case  of 
Seely  v,  Peters,  above  referred  to;  and  as  we  could  not  hope  to  answer 
them  more  satisfactorily  than  is  there  done,  we  adopt  the  language 
used  in  that  case,  the  appropriateness  of  which,,  as  applied  to  this 
State,  will  be  fully  appreciated  when  we  reflect  that  in  their  resources 
and  necessities,  Illinois  and  Iowa  are  almost  twin  sisters.  Both  alike 
are  agricultural  States  —  both  alike  have  large  and  extensive  prairies 
—  and  are  alike  destitute  of  timber,  as  compared  with  the  eastern  and 
older  States  of  the  Union. 

Says  Trumbull,  J.,  in  deUvering  that  opinion:  "However  well 
adapted  the  rule  of  the  common  law  may  be  to  a  densely  populated 
country  like  England,  it  is  surely  but  ill-adapted  to  a  new  country 
like  ours.  If  this  common-law  rule  prevails  now,  it  must  have  pre- 
vailed from  the  time  of  the  earUest  settlement  of  the  State,  and  can 
it  be  supposed  that  when  the  early  settlers  of  this  country  located 
upon  the  borders  of  our  extensive  prairies,  that  they  brought  with 
them,  and  adopted  as  appUcable  to  their  condition,  a  rule  of  law  re- 
quiring each  one  to  fence  up  his  cattle  ?  that  they  designed  the  mil- 
Uons  of  fertile  acres  stretched  out  before  them,  to  go  ungrazed,  except 
as  each  purchaser  from  the  government  was  able  to  inclose  his  part 
with  a  fence  ?  This  State  is  unUke  any  of  the  eastern  States  in  their 
early  settlement,  because,  from  the  scarcity  of  timber,  it  must  be 
many  years  yet  before  our  extensive  prairies  can  be  fenced;  and  their 
luxuriant  growth,  sufficient  for  thousands  of  cattle,  must  be  suflfered  to 
rot  and  decay  where  it  grows,  imless  settlers  upon  their  borders  are  per- 
mitted to  turn  their  cattle  upon  them.  Perhaps  there  is  no  principle 
of  the  common  law  so  inappUcable  to  the  condition  of  our  country  and 
the  people  as  the  one  which  is  sought  to  be  enforced  now,  for  the  first 
time,  since  the  settlement  of  the  State.  It  has  been  the  custom  of  Illi- 
nois, so  long  that  the  memory  of  man  runneth  not  to  the  contrary,  for 
the  owners  of  stock  to  suffer  them  to  run  at  large.  Settlers  have 
located  themselves  contiguous  to  prairies,  for  the  very  purpose  of  get- 
ting the  benefit  of  the  range.  The  right  of  all  to  pasture  their  cattle 
upon  iminclosed  ground  is  universally  conceded.  No  man  has  ques- 
tioned this  right,  although  hundreds  of  cases  must  have  occurred 
where  the  owners  of  cattle  have  escaped  the  pajrment  of  damages  on 


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414  WAGNER  V.  BISSELL  [CHAP.  III. 

account  of  the  insufficiency  of  the  fences  through  which  their  stock 
have  broken;  and  never  till  now  has  the  common-law  rule  that  the 
owner  of  cattle  is  bound  to  fence  them  up  been  suffered  to  prevail,  or 
to  be  applicable  to  our  condition.  The  universal  understanding  of  all 
classes  of  conmiunity,  upon  which  they  have  acted  by  inclosing  their 
crops  and  letting  their  cattle  run  at  large,  is  entitled  to  no  little  con- 
sideration in  determining  what  the  law  is;  and  we  should  feel  inclined 
to  hold,  independent  of  any  statutes  upon  the  subject,  on  account  of 
the  inapplicabiUty  of  the  common-law  rule  to  the  condition  and  cir- 
cumstances of  our  people,  that  it  does  not,  and  never  has,  prevailed 
in  Illinois." 

The  learned  judge  then  proceeds  to  show  that  it  is  not  necessary  to 
assume  that  groimd  in  the  case  before  him,  for  the  reason,  as  he  says, 
that  their  entire  legislation  clearly  shows  that  this  rule  of  the  common 
law  never  prevailed  in  that  State.  In  like  manner,  we  now  propose  to 
refer  to  some  of  our  own  legislation  which,  we  think,  will  clearly  show 
that  it  was  never  supposed  to  prevail  in  this  State.  [Here  Wright, 
C.  J.,  stated,  and  commented  upon,  various  statutes.] 

This  brief  reference  to  these  several  acts  must  be  sufficient,  in  our 
opinion,  to  satisfy  any  mind  that  the  legislature  never  imderstood  that 
the  rule  of  the  common  law  prevailed  in  this  State.  We  do  not  main- 
tain that  these  provisions  expressly  change  the  common-law  rule.  And 
did  we  believe  that  this  principle  had,  at  any  time,  been  well  estab- 
lished in  this  State,  we  should  perhaps  hold  that  it  had  not  been 
changed  by  these  different  statutes.  Where,  however,  it  is,  to  say  the 
least,  doubtful  whether  the  rule  contended  for  is  in  accordance  with 
our  situation,  condition,  and  wants  as  a  people,  where  for  a  series  of 
years  there  has  been  no  legislation  recognizing  the  existence  of  such  a 
rule,  and  where  custom  and  habit  have  uniformly  negatived  its  exist- 
ence, we  feel  entirely  justified  in  giving  force  to  these  acts  which,  if 
they  do  not  expressly,  certainly  do  impliedly,  change  the  unwritten 
law. 

Jud-gment  affirmed.^ 

»  Buford  V.  Houtz,  133  U.  S.  320;  Nashville  R.  Co.  v.  Peacock,  25  Ala.  229  (as 
to  later  legislation,  see  Phillips  v.  Bynum,  145  Ala.  549);  Little  Rock  R.  Co.  t;. 
Finley,  37  Ark.  562;  Morris  v,  Fraker.  5  Col.  426;  Studwell  ».  Ritch,  14  Conn. 
292;  Sprague  v.  Fremont  R.  Co.,  6  Dak.  86;  Savannah  R.  Co.  v.  Geiger,  21  Fla. 
669;  Macon  R.  Co.  v.  Lester,  30  Ga.  911  (but  see  later  legislation.  Puckett  v. 
Young,  112  Ga.  578);  Seeley  v.  Peters,  5  Gihn.  130  (but  see  jflTRev.  St.  c.  8,  §  1); 
Bulpit  V.  Mathews,  145  111.  345;  Vicksburgh  R.  Co.  v.  Patton,  31  Miss.  156;  Gor- 
man V.  Pacific  R.  Co.,  26  Mo.  441  (but  see  later  legation,  Gumm  v.  Jones,  115 
Mo.  App.  597) :  Delaney  v.  Errickson.  10  Neb.  492:  Laws  v.  North  Carolina  R. 
Co.,  52  N.  C.  468  (but  see  later  legislation,  State  v.  Mathis.  149  N.  C.  546);  Cleve- 
land R.  Co.  V.  Elhott,  4  Ohio  St.  474  (but  see  later  legislation,  Marsh  v.  Koons, 
78  Ohio  St.  68);  Murray  v.  South  Carolina  R.  Co.,  10  Rich.  Law,  227;  Hardman 
V.  King,  14  Wyo.  503  Accord. 

Turning  or  driving  catUe  on  another^ a  unindosedf  unimproved  land8f  where  the 
common  law  is  inapplicable  or  is  abrogated  by  legislation:  Lazarus  v.  Phelps,  152 
U.  S.  81;  Bell  v.  Gonzales,  35  Col.  138;  Bedden  v,  Clark,  76  111.  338;  Dexter  v. 


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SECT.  I.]  BEINHORN  V.  GRISWOLD  415 

BEINHORN  V.  GRISWOLD 

Supreme  Court,  Montana,  July  14, 1902. 

Reported  in  27  Montana  ReporUy  79. 

PiaoTT,  J  J  Action  to  recover  damages  for  injuries  alleged  to  have 
been  caused  by  the  negligence  of  the  defendant.  The  complaint  states 
that  the  defendant  negligently  left  exposed  a  vat  containing  poison- 
ous liquid;  that  by  reason  of  such  negligence  certain  cattle  of  plaintiff 
and  of  one  Holm  drank  from  the  vat  some  of  the  liquid,  and  died  from 
the  eflfects  of  the  poison;  and  that  Holm  assigned  his  demand  for 
damages  to  the  plaintiff.  The  answer  puts  in  issue  the  allegation  of 
negligence,  and  avers  that  the  death  of  the  cattle  was  caused  by  the 
carelessness  of  the  plaintiff  and  Holm.  The  plaintiff  secured  a  judg- 
ment, and  the  defendant  moved  for  a  new  trial  on  several  groimds,  one 
being  the  insuflSciency  of  the  evidence  to  prove  negligence  on  the  part 
of  the  defendant.  From  the  order  denjdng  a  new  trial  the  defendant 
has  appealed. 

The  facts  upon  which  the  plaintiff  bases  his  allegations  of  negli- 
gence are  substantially  these:  During  the  year  1898  the  defendant 
was  the  lessee  in  possession  of  the  Non-Such  gold  mine  and  mill  site. 
The  property  was  not  inclosed  by  a  legal  fence.  For  the  proper  con- 
duct of  his  mining  operations  he  employed  the  cyanide  process,  using 
large  quantities  of  poisonous  chemicals,  consisting  principally  of  cya- 
nide of  potassium,  which  he  diluted  with  water,  and  kept  in  suitable 
receptacles  on  the  surface  of  the  mining  property,  but  not  sufficiently 
covered  to  prevent  easy  access  to  the  poisonous  solution.  In  appear- 
ance it  resembled  water.  Cattle  of  the  plaintiff  and  of  Holm,  while 
ranging  on  the  public  domain,  wandered  over  to  and  upon  the  defend- 
ant's mine  and  mill  site,  and  there  drank  the  poisonous  liquid  con- 
tained in  the  vats  or  tubs.  The  defendant  knew  that  the  cattle  were 
in  the  habit  of  straying  upon  his  uninclosed  property,  and  he  had 
driven  them  away  whenever  he  saw  them  there. 

The  plaintiff  insists  there  is  but  one  question  involved,  which  he 
states  thus :  Is  a  "  landowner  who  negligently  leaves  exposed  upon  his 
uninclosed  premises,  where  he  knows  stock  are  wont  to  stray,  danger- 
ous places  or  substances,  whereby  another's  cattle,  straying  thereon, 
are  injured,  liable  for  such  injury  ?  "    He  argues  that,  as  the  defend- 

Heaghney,  47  Hi.  App.  205;  Harrison  v.  Adamson,  76  la.  337:  Union  R.  Co.  v. 
Rollins,  5  Kan.  167;  Powers  v.  Kindt,  13  Kan.  74;  Monroe  v.  Cannon,  24  Mont. 
316;  Musselshell  Cattle  Co.  v.  Woolfolk,  34  Mont.  126;  Herrin  v.  Sieben,  46 
Mont.  226;  Delaney  v,  Errickson,  11  Neb.  533;  Addington  v.  Canfield,  11  Okl.  204; 
Thomas  v.  Blythe,  44  Utah,  1;  Cosniflf  v.  Miller,  10  Wyo.  190;  Martin  v.  Platte 
Valley  Sheep  Co.,  12  Wyo.  432;  Healey  v.  Smith,  14  Wyo.  263.  Compare  Avery  v. 
Maxwell,  4  N.H.  36. 

Compare  reasons  given  for  the  inapplicability  of  the  oommon-law  rule  to  Colo- 
rado.   Beck,  J.,  in  Morris  v,  Fraker,  5  Col.  425,  428,  429. 

*  Arguments  omitted. 


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416  BEINHORN  V.  GRISWOLD  [CHAP.  III. 

ant's  mining  property  was  not  inclosed  by  a  legal  fence,  the  cattle 
were  not  trespassing  upon  his  property,  but  were  rightfully  thereon, 
and  that  therefore  he  owed  to  the  plamtiff  the  duty  so  to  use  his  prop- 
erty and  conduct  his  business  as  not  to  injure  the  plaintiff's  cattle; 
that,  in  failing  to  cover  the  poisonous  solution  so  as  to  prevent  the 
cattle  from  drinking  of  it,  he  violated  this  alleged  duty,  and  as  such 
negligence  resulted  in  the  death  of  the  cattle,  and  consequent  loss  to 
the  plaintiff,  the  defendant  is  liable  in  damages.  In  support  of  his 
contention  the  plaintiff  cites  Monroe  v.  Cannon,  24  Montana  Reports, 
316  (61  Pac.  863,  81  Am.  St.  Rep.  439),  where  the  owner  of  pasture 
land  was  held  entitled  to  recover  the  value  of  grass  consumed  by  bands 
of  sheep  deUberately  and  intentionally  driven  on  it  by  the  herder  in 
charge  of  them;  the  opinion  containing  the  following  language:  "If 
in  the  case  now  under  consideration  the  damage  sustained  by  respond- 
ent had  resulted  from  trespasses  committed  by  cattle  or  sheep  or  other 
animals  named  in  the  statute,  lawfully  at  large,  and  not  under  the 
direction  and  control  of  their  owner,  then  appellant's  position  would 
be  sound."  Neither  this  language,  nor  anything  said  in  the  opinion, 
lends  countenance  to  the  contention  of  the  plaintiff  in  the  case  at  bar. 
The  decision  does  not  declare  or  define  any  duty  owing  by  the  land- 
owner to  the  owner  of  straying  cattle.  ITiese  observations  apply  also 
to  Section  3258  of  the  PoUtical  Code,  which  reads:  "  If  any  cattle, 
horse,  mule,  ass,  hog,  sheep,  or  other  domestic  animal  break  into  any 
inclosure,  the  fence  being  legal,  as  hereinbefore  provided,  the  owner 
of  such  animal  is  liable  for  all  damages  to  the  owner  or  occupant  of 
the  inclosing  which  may  be  sustained  thereby.  This  section  must  not 
be  construed  so  as  to  require  a  legal  fence  in  order  to  maintain  an 
action  for  injury  done  by  animals  running  at  large  contrary  to  law." 
Even  if  it  be  conceded  that  the  cattle  of  the  plaintiff  were  not  wrong- 
fully upon  defendant's  property,  no  liabiUty  would  be  incurred  from 
the  fact  that  they  were  injured  while  there,  unless  it  was  the  defend- 
ant's duty  to  protect  from  injury  all  cattle  on  his  property  whose 
trespass  was  not  of  such  a  nature  as  to  render  their  owners  liable  for 
the  trespass.  Counsel  for  the  plaintiff  urge  that,  if  these  cattle  were 
not  wrongfully  on  the  defendant's  property,  they  must  have  been 
rightfully  there;  asserting  that  if  there  was  no  remedy  by  action,  there 
could  not  be  a  trespass.    To  this  we  cannot  yield  assent. 

The  owner  is  entitled  to  the  exclusive  possession  of  his  land, 
whether  fenced  or  not;  and  it  is  beyond  the  power  of  the  legislature 
to  prescribe,  or  of  custom  to  create,  a  right  in  another  to  occupy  the 
land  or  enjoy  its  fruits.  Either  written  law  or  custom  may  withhold 
from  the  owner  who  does  not  fence  his  land  a  remedy  for  loss  suf- 
fered by  reason  of  casual  trespasses  by  cattle  which  stray  upon  it,  and 
may  give  a  remedy  for  such  trespasses  to  those  only  who  inclose  their 
land.  By  custom  as  well  as  by  statute  the  common  law  of  England 
has  been  so  modified  in  Montana.    This  is  undoubtedly  a  legitimate 


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SECT.  I.]  BEINHORN  V.  GRISWOLD  417 

exercise  of  the  police  power.  It  falls  far  short,  however,  of  conferring 
a  legal  right  to  dispossess  the  nonfencing  owner.  He  may  at  pleasure 
lawfully  drive  the  intruding  cattle  from  his  land,  and  keep  them  away 
from  it.  This  is  his  right,  for  the  cattle  are  trespassing.  The  owners 
of  domestic  animals  hold  no  servitude  upon  or  interest,  temporary  or 
permanent,  in  the  open  land  of  another,  merely  because  it  is  open.  If 
the  landowner  fails  to  "  fence  out  "  cattle  lawfully  at  large,  he  may 
not  successfully  complain  of  loss  caused  by  such  Uve  stock  straying 
upon  his  uninclosed  land.  For  under  these  circumstances  the  trespass 
is  condoned  or  excused,  —  the  law  refuses  to  award  damages.  While 
the  landowner,  by  omitting  to  fence,  disables  himself  from  invoking 
the  remedy  which  is  given  to  those  who  inclose  their  property  with  a 
legal  fence,  and  while  the  cattle  owner  is  thereby  relieved  from  lia- 
bility for  casual  trespasses,  it  is  nevertheless  true  that  the  cattle  owner 
has  no  right  to  pasture  his  cattle  on  the  land  of  another,  and  that 
cattle  thus  wandering  over  such  lands  are  not  rightfully  there.  They 
are  there  merely  by  the  forbearance,  sufferance,  or  tolerance  of  the 
nonfencing  landowner;  there  they  may  remain  only  by  his  tolerance. 

The  cattle-owning  plaintiff  did  not  owe  to  the  land-owning  defend- 
ant the  duty  to  fence  his  cattle  in;  the  latter  did  not  owe  to  the  former 
the  duty  to  fence  them  out;  neither  of  them  was  imder  obligation  to 
the  other  in  that  regard.  The  defendant  is  not  liable  in  this  action 
unless  he  was  negligent.  There  cannot  be  negligence  without  breach 
of  duty.  Hence,  manifestly,  the  defendant  was  not  guilty  of  negli- 
gence in  omitting  to  prevent  the  plaintiflP's  cattle  from  going  upon  his 
imfenced  land. 

As  has  just  been  said,  the  straying  of  the  plaintiff's  cattle  upon  the 
defendant's  land  did  not  involve  the  violation  of  any  legal  duty  upon 
the  part  of  the  defendant.  ITiere  would  therefore  seem  to  be  no  basis 
for  the  plaintiff's  charge  of  negligence  on  the  part  of  the  defendant, 
imless  it  consists  in  the  defendant's  alleged  failure  to  protect  the 
cattle  from  injury  while  on  his  land.  The  damage  resulted  from  a 
permissive,  not  an  active,  cause  of  injury.  We  are  asked  to  hold 
that  the  law  imposed  upon  the  defendant,  in  addition  to  the  duty  of 
refraining  from  intentional  or  wanton  injury  to  the  cattle,  the  duty  so 
to  use  his  property  and  so  to  conduct  his  mining  operations  thereon 
as  to  avoid  all  dangers  to  which  these  trespassing  beasts  might  expose 
themselves.  Counsel  invoke  the  provisions  of  Section  2296  of  the 
Civil  Code,  which  is  declaratory  of  the  common  law:  "  Every  one  is 
responsible  ...  for  an  injury  occasioned  to  another  by  his  want  of 
ordinary  care  or  skill  in  the  management  of  his  property.  .  .  ."  Giv- 
ing to  the  principle  thus  expressed  full  recognition,  and  measuring  the 
rights  of  the  parties  by  the  test  of  negligence  thus  furnished,  we  are 
unable  to  find  in  the  record  evidence  of  acts  or  omissions  by  the 
defendant  constituting  negligence  in  the  management  of  his  property. 
But  the  plaintiff  contends  tiiat,  irrespective  of  Section  2296,  the  de- 


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418  BEINHORN  V.  GRISWOLD  [CHAIp.  III. 

fendant  has  been  guilty  of  negligence  in  so  using  his  property  as  to 
imperil,  and  in  this  case  actually  injure,  the  property  of  another.  We 
think  the  principles  which  he  invokes  have  no  application  to  the  facts 
disclosed  by  the  record.  To  a  naked  trespasser  or  mere  Ucensee  by 
sufferance  (if  the  expression  may  correctly  be  used)  the  landowner 
owes  the  duty  to  refrain  from  any  wilful  or  wanton  act  causing  injury 
to  his  person  or  chattels,  and,  after  discovering  that  the  trespasser  is 
in  imminent  danger  or  immediate  peril,  to  use  reasonable  care  to  avoid 
an  active  cause  of  injury.  Egan  v.  Montana  Central  Railway  Co.,  24 
Montana  Reports,  569,  63  Pac.  831.  The  rule  is  different  in  respect 
of  those  who  go  upon  property  because  of  the  owner's  invitation, 
either  express  or  implied.  As  to  such  persons  he  is  bound,  at  his 
peril,  to  use  reasonable  care  and  diligence  in  keeping  his  property  in 
safe  condition.  To  a  mere  licensee  or  naked  trespasser  the  landowner 
does  not  owe  the  active  duty  of  being  diligent  or  using  care  in  pro- 
viding against  the  danger  of  accident.  The  distinction  is  well  ex- 
pressed in  Sweeny  v.  Old  Colony  &  Newport  Raihx)ad  Co.,  10  Allen, 
368,  87  Am.  Dec.  644: 

[A  long  quotation  from  the  opinion  in  that  case  is  omitted.] 
The  methods  pursued  by  the  defendant  in  the  management  and  use 
of  his  property  involved  no  danger  to  the  plaintiff  or  his  cattle,  nor 
exposed  either  to  risk,  so  long  as  he  and  they  remained  within  the 
limits  of  the  plaintiff's  rights.  The  contention  of  the  plaintiff  rests 
upon  the  erroneous  theory,  heretofore  considered,  that  the  cattle  own- 
ers hold  a  personal  servitude  upon,  or  the  right  of  commons  or  profit 
in,  all  unfenced  land,  by  virtue  of  which  they  are  supposed  to  be  en- 
titled, as  of  right,  to  use  for  grazing  and  pastiu^  all  of  the  uninclosed 
lands  of  other  persons.  Such  burden  upon  or  easement  in  gross  in 
open  lands  has  not  been  granted,  and  does  not  exist.  We  have  already 
decided  that  such  use,  while  it  does  not  constitute  an  actionable 
wrong,  is  not  the  exercise  of  a  legal  right;  and  as  the  cattle  owner  pos- 
sessed no  right  to  have  his  live  stock  upon  the  defendant's  land,  and 
the  latter  was  clothed  with  the  unquestioned  right  to  drive  them 
away  because  they  were  not  rightfully  there,  clearly  the  defendant  had 
no  active  duty  in  respect  of  them  while  there.  He  was,  of  course, 
bound  to  refrain  from  intentional  or  wanton  injury;  if  he  stood  by 
and  knowingly  permitted  them  to  drink  of  the  poisonous  solution, 
without  making  an  effort  to  prevent  them  from  doing  so,  he  might, 
perhaps,  be  liable;  but  neither  of  these  conditions  is  in  the  case 
at  bar. 

We  think  there  is  no  proof  in  the  record  which  justifies  the  appU- 
cation  of  the  doctrine  of  invitation,  enticement,  allurement  or  attrac- 
tion. Deane  v.  Clayton,  7  Taunt.  489,  531,  533;  Jordin  v.  Crump,  8 
Mees.  &  W.  782;  Ponting  v.  Noakes,  (1894)  2  Q.  B.  281;  Stendal  v. 
Boyd,  67  Minn.  279,  69  N.  W.  899;  Twist  v.  Railroad  Co.,  39  Minn. 
164,  39  N.  W.  402,  12  Am.  St.  Rep.  626.    The  soundness  of  the  prin- 


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SECT.  II.]  MAY  V.  BURDETT  419 

ciples  upon  which  the  so-called  "  turntable  "  and  similar  cases  are 
supported  is  not  presented  for  decision. 

We  have  read  the  opinions  which  are  opposed  to  the  conclusions 
here  announced.  They  need  not  be  referred  to  or  discussed.  We  are 
entirely  satisfied  that  our  conclusions  are  based  upon  correct  funda- 
mental principles. 

The  order  refusing  a  new  trial  is  reversed,  with  costs  to  the  appel- 
lant, and  the  cause  is  remanded.  Reversed  and  remanded,^ 

Mr.  Chiep  Justice  Brantlt:  I  concur. 

Mr.  Justice  Milburn:  Considering  only  the  facts  appearing  in 
this  case,  I  concur  in  the  reversal  of  the  order  denjdng  a  new  trial.  I 
do  not  concur  in  all  that  is  said  in  the  opinion  with  reference  to 
absence  of  duty  owing  by  one  person  to  another  who  is  trespassing 
upon  the  premises  of  the  former,  or  to  the  owner  of  live  stock  which 
wander  upon  such  premises. 


Section  II 
Injuries  by  Animai^ 

MAY  V.  BURDETT 

In  the  Queen's  Bench,  June  2, 1846. 

Beporied  in  9  Queen's  Bench  Reports  (Adolphus  &  Etlis,  n.  s.),  101. 

Case.  The  declaration  stated  that  defendant,  "  before  and  at  the 
time  of  the  damage  and  injury  hereinafter  mentioned  to  the  said 
Sophia,  the  wife  of  the  said  Stephen  May,  wrongfully,  and  injuriously 
kept  a  certain  monkey,  he  the  defendant  well  knowing  that  the  said 
monkey  was  of  a  mischievous  and  ferocious  nature,  and  was  used  and 
accustomed  to  attack  and  bite  mankind,  and  that  it  was  dangerous 
and  improper  to  allow  the  monkey  to  be  at  large  and  unconfined; 
which  said  monkey,  whilst  the  said  defendant  kept  the  same  as  afore- 
said, heretofore  and  before  the  commencement  of  this  suit,  to  wit,  on 
the  2d  of  September,  1844,  did  attack,  bite,  wound,  lacerate,  and  in- 
jure the  said  Sophia,  then  and  still  being  the  wife  of  said  Stephen 
May,  whereby  the  said  Sophia  became  and  was  greatly  terrified  and 
alarmed,  and  became  and  was  sick,  sore,  lame,  and  disordered,  and  so 
remained  and  continued  for  a  long  time,  to  wit,  from  the  day  and  year 
last  aforesaid  to  the  time  of  the  commencement  of  this  suit;  whereby, 

>  See  Merold  v,  Meyers,  20  la.  378;  Williams  v.  Michigan  R.  Co..  2  Mich.  259; 
Christy  v,  Hughes.  24  Mo.  App.  276;  Peek  v.  Western  TeL  Co.,  159  Mo.  App.  148; 
Crandall  v,  Eldridge,  46  Hun.  411. 

Whether  there  is  a  right  of  pasturage  on  unindosed  lands,  where  the  common 
law  rule  is  not  in  force,  see  union  K.  Co.  t;.  Rollins,  5  Kan.  167;  Caulkins  v. 
Mathews,  5  Kan.  191;  Knight  v,  Abert,  6  Pa.  St.  472. 


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420  MAY  V.  BURDETT  [CHAP.  HI. 

and  in  consequence  of  the  alarm  and  fright  occasioned  by  the  said 
monkey  so  attacking,  biting,  wounding,  lacerating,  and  injuring  her  as 
aforesaid,  the  said  Sophia  has  been  greatly  injured  in  her  health,"  &c. 

Plea,  not  guilty.    Issue  thereon. 

On  the  trial,  before  Wightman,  J.,  at  the  sittings  in  Middlesex, 
after  Hilary  term,  1845,  a  verdict  was  found  for  the  plaintiff  with  £50 
damages.  Cockbiun,  in  the  ensuing  term,  obtained  a  rule  to  show 
cause  why  judgment  should  not  be  arrested. 

[The  cause  was  argued]  before  Lord  Denman,  C.  J.,  Patteson,  J., 
Coleridge,  J.,  and  Wightman,  J.* 

Lord  Denman,  C.  J.,  now  delivered  the  judgment  of  the  Court. 

This  was  a  motion  to  arrest  the  judgment  in  an  action  on  the  case 
for  keeping  a  monkey  which  the  defendant  knew  to  be  accustomed  to 
bite  people,  and  which  bit  the  female  plaintiff.  The  declaration  stated 
that  the  defendant  wrongfully  kept  a  monkey,  well  knowing  that 
it  was  of  a  mischievous  and  ferocious  nature  and  used  and  accustomed 
to  attack  and  bite  mankind,  and  that  it  was  dangerous  to  allow  it 
to  be  at  large;  and  that  the  motikey,  whilst  the  defendant  kept  the 
same  as  aforesaid,  did  attack,  bite,  and  injure  the  female  plaintiff, 
whereby,  &c. 

It  was  objected  on  the  part  of  the  defendant  that  the  declaration 
was  bad  for  not  alleging  neghgence  or  some  default  of  the  defendant  in 
not  properly  or  securely  keeping  the  animal;  and  it  was  said  that, 
consistently  with  this  declaration,  the  monkey  might  have  be^n  kept 
with  due  and  proper  caution,  and  that  the  injury  might  have  been 
entirely  occasioned  by  the  carelessness  and  want  of  caution  of  the 
plaintiff  herself. 

A  great  many  cases  and  precedents  were  cited  upon  the  argument; 
and  the  conclusion  to  be  drawn  from  them  appears  to  us  to  be  that  the 
declaration  is  good  upon  the  face  of  it;  and  that  whoever  keeps  an 
animal  accustomed  to  attack  and  bite  mankind,  with  knowledge  that 
it  is  so  accustomed,  is  prima  facte  hable  in  an  action  on  the  case  at  the 
suit  of  any  person  attacked  and  injured  by  the  animal,  without  any 
averment  of  negligence  or  default  in  the  securing  or  taking  care  of  it. 
The  gist  of  the  action  is  the  keeping  the  animal  after  knowledge  of  its 
mischievous  propensities. 

The  precedents,  both  ancient  and  modem,  with  scarcely  an  excep- 
tion, merely  state  the  ferocity  of  the  animal  and  the  knowledge  of  the 
defendant,  without  any  allegation  of  negligence  or  want  of  care.  A 
great  many  were  referred  to  upon  the  argument,  commencing  with  the 
Register  and  ending  with  Thomas  v.  Morgan,  2  C.  M.  &  R.  496;  s.  c. 
5  T3n:.  1085;  and  all  in  the  same  form,  or  nearly  so.  In  the  Register, 
110,  111,  two  precedents  of  writs  are  given,  one  for  keeping  a  dog 
accustomed  to  bite  sheep,  and  the  other  for  keeping  a  boar  accustomed 
to  attack  and  wound  other  animals.   The  cause  of  action,  as  stated  in 

*  The  arguments  are  omitted. 


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SECT.  II.]  MAY  V.  BURDETT  421 

both  these  precedents,  is  the  propensity  of  the  animals,  the  knowledge 
of  the  defendant,  and  the  injury  to  the  plaintiff;  but  there  is  no  alle- 
gation of  negligence  or  want  of  care.  In  the  case  of  Mason  v.  Kneel- 
ing, reported  in  1  Ld.  Ray.  and  12  Mod.,  and  much  relied  upon  on  the 
part  of  the  defendant,  want  of  due  care  was  alleged,  but  the  scienter 
was  omitted ;  and  the  question  was,  not  whether  the  declaration  would 
be  good  without  the  allegation  of  want  of  care,  but  whether  it  was  good 
without  the  aUegation  of  knowledge,  which  it  was  held  that  it  was  not. 
No  case  was  cited  in  which  it  had  been  decided  that  a  declaration  stat- 
ing the  ferocity  of  the  animal  and  the  knowledge  of  the  defendant  was 
bad  for  not  averring  negligence  also;  but  various  dicta  in  the  books 
were  cited  to  show  that  this  is  an  action  founded  on  negligence,  and 
therefore  not  maintainable  unless  some  negligence  or  want  of  care  is 
alleged. 

In  Comjms'  Digest,  tit.  Action  upon  the  Case  for  Negligence  (A  5), 
it  is  said  that "  an  action  upon  the  case  lies  for  a  neglect  in  taking  care 
of  his  cattle,  dog,  &c.;  "  and  passages  were  cited  from  the  older  au- 
thorities, and  also  from  some  cases  at  nisi  jnius,  in  which  expressions 
were  used  showing  that,  if  persons  suffered  animals  to  go  at  large, 
knowing  them  to  be  disposed  to  do  mischief,  they  were  liable  in  case 
any  mischief  actually  was  done;  and  it  was  attempted  to  be  inferred 
from  this  that  the  liability  only  attached  in  case  they  were  suffered  to 
go  at  large  or  to  be  otherwise  ill  seciu^.  But  the  conclusion  to  be 
drawn  from  an  examination  of  all  the  authorities  appears  to  us  to  be 
this:  that  a  person  keeping  a  mischievous  animal  with  knowledge  of 
its  propensities  is  bound  to  keep  it  secure  at  his  peril,  and  that  if  it 
does  mischief,  negligence  is  presumed,  without  express  averment.  The 
precedents  as  well  as  the  authorities  fully  warrant  this  conclusion. 
The  negligence  is  in  keeping  such  an  animal  after  notice.  The  case  of 
Smith  V.  Pelah,  2  Stra.  1264,  and  a  passage  in  1  Hale's  Pleas  of  the 
Crown,  430,^  put  the  liability  on  the  true  ground.  It  may  be  that  if 
the  injury  was  solely  occasioned  by  the  wilfulness  of  the  plaintiff  after 
warning,  that  may  be  a  ground  of  defence,  by  plea  in  confession  and 
avoidance;  but  it  is  unnecessary  to  give  any  opinion  as  to  this;  for 

*  After  stating  that ''  if  a  man  have  a  beast,  as  a  bull,  cow,  horse,  or  dog.  used 
to  hurt  people,  if  the  owner  know  not  his  quality,  he  is  not  punishable,  &c.,  Hale 
adds  (citing  authorities)  that ''  these  things  seem  to  be  agreeable  to  law. 

"  1.  If  tne  owner  have  notice  of  the  quality  of  his  beast,  and  it  doth  anybody 
hurt,  he  is  chargeable  with  an  action  for  it. 

**  2.  Though  he  have  no  particular  notice  that  he  did  any  such  thing  before,  yet 
if  it  be  a  beast  that  is /era  naturaiy  as  a  lion,  a  bear,  a  wolf,  yea  an  ape  or  monkey, 
if  he  get  loose  and  do  harm  to  any  person,  the  owner  is  liable  to  an  action  for  the 
damage,  and  so  I  knew  it  adjudged  in  Andrew  Baker's  Case,  whose  child  was  bit 
by  a  monkey  that  broke  its  cham  and  got  loose. 

"  3.  And  therefore  in  case  of  such  a  wild  beast,  or  in  case  of  a  bull  or  cow,  that 
doth  damage,  where  the  owner  knows  of  it,  he  must  at  his  peril  keep  him  up  safe 
from  doing  hurt,  for  though  he  use  his  diligence  to  keep  him  up,  if  he  escape  and 
do  harm,  the  owner  is  liable  to  answer  damages."  1  Hale's  P.  C.  430,  Part  I«  c. 
33.  —  Reporter's  Note. 


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422  FILBURN  V.  people's  PALACE  CO.  [CHAP.  III. 

we  think  that  the  declaration  is  good  upon  the  face  of  it,  and  shows  a 
prima  facte  liability  in  the  defendant. 

It  was  said,  indeed,  further,  on  the  part  of  the  defendant,  that,  the 
monkey  being  an  animal  ferce  TuUurce,  he  would  not  be  answerable  for 
injuries  conmiitted  by  it  if  it  escaped  and  went  at  large  without  any 
default  on  the  part  of  the  defendant,  during  the  time  it  had  so  escaped 
and  was  at  large,  because  at  that  time  it  would  not  be  in  his  keeping 
nor  under  his  control;  but  we  cannot  allow  any  weight  to  this  objec- 
tion; for,  in  the  first  place,  there  is  no  statement  in  the  declaration 
that  the  monkey  had  escaped,  and  it  is  expressly  averred  that  the 
injury  occurred  whilst  the  defendant  kept  it;  we  are  besides  of 
opinion,  as  already  stated,  that  the  defendant,  if  he  would  keep  it,  was 
bound  to  keep  it  secure  at  all  events. 

The  rule  therefore  will  be  discharged.  Rule  discharged.^ 


FILBURN  V.  PEOPLE'S  PALACE  AND  AQUARIUM 
COMPANY,  LIMITED 

In  the  Coubt  op  Appeal,  June  30, 1890. 
Reported  in  Law  Reports,  25  Queen*8  Bench  Dwieionf  258. 

Appeal  from  a  judgment  of  Day,  J. 

The  action  was  brought  to  recover  damages  for  injuries  sustained  by 
the  plaintiff  by  his  being  attacked  by  an  elephant,  which  was  the  prop- 
erty of  the  defendants,  and  was  being  exhibited  by  them.  The  learned 
judge  left  three  questions  to  the  jury:  whether  the  elephant  was  an 
animal  dangerous  to  man;  whether  the  defendant  knew  the  elephant 
to  be  dangerous,  and  whether  the  plaintiff  brought  the  attack  on  him- 
self. The  jury  answered  all  three  questions  in  the  negative.  The 
learned  judge  entered  judgment  for  the  plaintiff  for  a  sum  agreed 
upon  in  case  the  plaintiff  should  be  entitled  to  recover. 

The  defendants  appealed. 

Lockwoodf  Q.  C,  and  Cyril  Dodd,  Q.  C,  in  support  of  the  appeal. 
There  are  certain  animals  recognized  as  being  of  an  untamable 
nature,  and  these  a  person  keeps  at  his  peril.  In  Hale's  Pleas  of  the 
Crown  (vol.  i,  p.  430),  it  is  said:  "  Tho'  he  have  no  particular  notice 
that  he  did  any  such  thing  before,  yet  if  it  be  a  beast,  that  is  ferae 
naturae,  as  a  Uon,  a  bear,  a  wolf,  yea  an  ape  or  a  monkey,  if  he  get 

1  Jackson  v.  Smithson,  15  M.  &  W.  563:  Card  v.  Case,  5  C.  B.  622;  Strouse  v, 
Leipf,  101  Ala.  433;  Holt  v.  Leslie,  116  Ark.  433:  Laverone  v.  Mangianti,  41  Cal. 
138;  Gooding  v.  Chutes  Co.,  155  Cal.  620;  Woolf  v.  Chalker,  31  Conn.  121;  Kight- 
linrasr  v.  Egan,  75  111.  141;  Gordon  v.  Kaiifman,  44  Ind.  App.  603;  Holt  v,  Myers, 
47  Ind.  App.  118:  Kennett  v,  Engle,  105  Mich.  693;  Hall  v.  Huber,  61  Mo.  App. 
384;  O'Neill  v.  Blase,  94  Mo.  App.  648;  MuUer  v.  McKesson,  73  N.  Y.  195:  People 
V.  Shields,  142  App.  Div.  194:  Tubbs  v.  Shears,  55  Okl.  610;  Mann  v.  Weiand, 
81*  Pa.  St.  243;  McCaskill  v.  Elliot,  5  Strob.  196;  Missio  v.  Williams,  129  Tenn. 
504;  Harris  v.  Carstens  Packing  Co.,  43  Wash.  647;  Gunderson  v,  Bieren,  80 
Wash.  459  Accord. 


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SECT.  II.]  FILBURN  V.  PEOPLE'S  PALACE  CO.  423 

loose  and  do  harm  to  any  person,  the  owner  is  liable  to  an  action  for 
the  damage."  There  is,  however,  no  hard  and  fast  line  which  prevents 
an  animal  ferae  naturae  ceasing  to  belong  to  that  class  and  becoming 
domesticated.  The  distinction  is  drawn  in  Rex  v.  Huggins,  2  lA. 
Raym.  1574,  where  it  is  said:  "  There  is  a  difference  between  beasts 
that  are  ferae  naturae^  as  Uons  and  tygers,  which  a  man  must  always 
keep  up  at  his  peril;  and  beasts  that  are  mansv^tae  naturae,  and  break 
through  the  tameness  of  their  nature, ^ch  as  oxen  and  horses.  In  the 
latter  case  an  action  Ues,  if  the  owner  has  had  notice  of  the  quality  of 
the  beast;  in  the  former  case  an  action  lies  without  such  notice."  All 
animals  are  wild  by  nature,  and  the  reason  for  the  distinction  is,  that 
some  of  them  are  treated  as  domesticated,  because  they  have  been 
tamed  and  are  used  in  the  service  of  man.  Though  there  are  wild 
elephants,  just  as  there  are  wild  oxen  and  horses,  a  great  number  have 
been  tamed,  and  are  used  in  the  service  of  man;  and  the  same  ruling 
should  apply  to  individuals  of  this  class  as  to  domesticated  anurals 
generally.  The  jury  have  negatived  any  knowledge  on  the  part  of  the 
defendants  of  any  dangerous  character  in  this  elephant,  and  they  are, 
imder  these  circumstances,  entitled  to  the  verdict. 

Lord  Esher,  M.  R.  The  only  diflBculty  I  feel  in  the  decision  of  this 
case  is  whether  it  is  possible  to  enunciate  any  formula  under  which 
this  and  similar  cases  may  be  classified.  The  law  of  England  recog- 
nizes two  distinct  classes  of  animals;  and  as  to  one  of  those  classes,  it 
cannot  be  doubted  that  a  person  who  keeps  an  animal  belonging  to 
that  class  must  prevent  it  from  doing  injury,  and  it  is  immaterial 
whether  he  knows  it  to  be  dangerous  or  not.  As  to  another  class,  the 
law  assumes  that  animals  belonging  to  it  are  not  of  a  dangerous 
nature,  and  any  one  who  keeps  an  animal  of  this  kind  is  not  liable  for 
the  damage  it  may  do,  unless  he  knew  that  it  was  dangerous.  What, 
then,  is  the  best  way  of  dealing  generally  with  these  different  cases  ? 
I  suppose  there  can  be  no  dispute  that  there  are  some  animals  that 
every  one  must  recognize  as  not  being  dangerous  on  account  of  their 
nature.  Whether  they  are  ferae  naturae  so  far  as  rights  of  property  are 
concerned  is  not  the  question;  they  certainly  are  not  so  in  the  sense 
that  they  are  dangerous.  There  is  another  set  of  animals  that  the  law 
has  recognized  in  England  as  not  being  of  a  dangerous  nature,  such  as 
sheep,  horses,  oxen,  dogs,  and  others  that  I  will  not  attempt  to  enu- 
merate. I  take  it  this  recognition  has  come  about  from  the  fact  that 
years  ago,  and  continuously  to  the  present  time,  the  progeny  of  these 
classes  has  been  found  by  experience  to  be  harmless,  and  so  the  law 
assumes  the  result  of  this  experience  to  be  correct  without  further 
proof.  Unless  an  animal  is  brought  within  one  of  these  two  descrip- 
tions, —  that  is,  unless  it  is  shown  to  be  either  harmless  by  its  very 
nature,  or  to  belong  to  a  class  that  has  become  so  by  what  may  be 
called  cultivation,  —  it  falls  within  the  class  of  animals  as  to  which 
the  nile  is,  that  a  man  who  keeps  one  must  take  the  responsibility  of 


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424  FILBURN  V.  people's  PALACE  CO.  [CHAP.  IH. 

keeping  it  safe.  It  cannot  possibly  be  said  that  an  elephant  comes 
within  the  class  of  animals  known  to  be  harmless  by  nature,  or  within 
that  shown  by  experience  to  be  harmless  in  this  country,  and  conse- 
quently it  falls  within  the  class  of  animals  that  a  man  keeps  at  his 
peril,  and  which  he  must  prevent  from  domg  injury  under  any  cir- 
cumstances, unless  the  person  to  whom  the  injury  is  done  brings  it  on 
himself.  It  was,  therefore,  inamaterial  in  this  case  whether  the  par- 
ticular animal  was  a  dangerous  one,  or  whether  the  defendants  had 
any  knowledge  that  it  was  so.  The*  judgment  entered  was  in  these 
circimistances  right,  and  the  appeal  must  be  dismissed. 

LiNDLBY,  L.  J.  I  am  of  the  same  opinion.  The  last  case  of  this 
kind  discussed  was  May  v.  Burdett,  9  Q.  B.  101,  but  there  the  monkey 
which  did  the  mischief  was  said  to  be  accustomed  to  attack  mankind, 
to  the  knowledge  of  the  person  who  kept  it.  That  does  not  decide  this 
case.  We  have  had  no  case  cited  to  us,  nor  any  evidence,  to  show 
that  elephants  in  this  country  are  not  as  a  class  dangerous;  nor  are 
they  commonly  known  here  to  belong  to  the  class  of  domesticated  am'- 
mals.  Therefore  a  person  who  keeps  one  is  liable,  though  he  does  not 
know  that  the  particular  one  that  he  keeps  is  mischievous.  Appljdng 
that  principle  to  this  case,  it  appears  that  the  judgment  for  the  plain- 
tiff was  right,  and  this  appeal  must  be  dismissed. 

BowEN,  L.  J.  I  am  of  the  same  opinion.  The  broad  principle  that 
governs  this  case  is  that  laid  down  in  Fletcher  v.  Rylands,  Law  Rep. 
1  Ex.  265;  Law  Rep.  3  H.  L.  330,  that  a  person  who  brings  upon  his 
land  anything  that  would  not  naturally  come  upon  it,  and  which  is  in 
itself  dangerous,  must  take  care  that  it  is  kept  under  proper  control. 
The  question  of  liability  for  damage  done  by  mischievous  animals  is  a 
branch  of  that  law  which  has  been  applied  in  the  same  way  from  the 
times  of  Lord  Holt  *  and  of  Hale  until  now.  People  must  not  be  wiser 
than  the  experience  of  mankind.  If  from  the  experience  of  mankind  a 
particular  class  of  animals  is  dangerous,  though  individuals  may  be 
tamed,  a  person  who  keeps  one  of  the  class  takes  the  risk  of  any  dam- 
age it  may  do.  If,  on  the  other  hand,  the  animal  kept  belongs  to  a 
class  which,  according  to  the  experience  of  mankind,  is  not  dangerous, 
and  not  Ukely  to  do  mischief,  and  if  the  class  is  dealt  with  by  mankind 
on  that  footing,  a  person  may  safely  keep  such  an  animal,  unless  he 
knows  that  the  particular  animal  that  he  keeps  is  likely  to  do  mischief. 
It  cannot  be  doubted  that  elephants  as  a  class  have  not  been  reduced 
to  a  state  of  subjection;  they  still  remain  wild  and  untamed,  though 
individuals  are  brought  to  a  degree  of  tameness  which  amounts  to 
domestication.  A  person,  therefore,  who  keeps  an  elephant,  does  so  at 
his  own  risk,  and  an  aetion  can  be  maintained  for  any  injury  done  by 
it,  although  the  owner  had  no  knowledge  of  its  mischievous  propensi- 
ties.   I  agree,  therefore,  that  the  appeal  must  be  dismissed. 

Appeal  dismissed* 

1  See  Mason  t^.  Keeling,  12  Mod.  332. 

•  Besozzi  V,  Harris,  1  F.  &  F.  92;  Texas  R.  Co.  v.  Juneman,  71  Fed.  939  (wild 


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SECT.  II.]  MAUNG  KYAW  DUN  V.  MA  KYIN  425 

MAUNG  KYAW  DUN  v.  MA  KYIN 

Bbfobb  the  Judicial  Commisbionbr  op  Upper  Bubma,  Mat  7, 

1900. 
Reported  in  2  Upper  Burma  RttUngs  (1897-1901),  CwU,  670. 

H.  Thirkell  White,  Esq.,  Judicial  Commissioner. 

The  plaintiff-appellant  sued  to  recover  damages  on  account  of  the 
death  of  his  elephant  "  Do,"  which  died  from  the  effect  of  wounds  in- 
flicted by  the  respondents'  elephant,  "  Kya  Gyi." 

The  issues  which  arise  in  a  case  of  this  kind  have  been  stated  in  two 
cases  of  this  court.  In  Maung  Gyi  v.  Po  To  [same  vol.,  p.  565]  it 
was  observed  that  the  issue  generally  would  no  doubt  be  the  usual 
issue  as  to  the  existence  of  negligence  on  the  part  of  the  owner  of  the 
animal  doing  the  damage.  In  Maung  Saw  v.  Maung  Kyaw  [same  vol., 
p.  567],  points  which  arise  in  a  case  very  similar  to  the  present  were 
indicated.  There  has  been  some  argument  in  this  court  on  the  appli- 
cation of  the  doctrine  of  scienter.  It  is  said  that  "  any  one  who  keeps 
a  wild  animal,  as  a  tiger  or  bear,  which  escapes  and  does  damage,  is 
liable  without  any  proof  of  notice  of  the  animaFs  ferocity;  but  where 
the  damage  is  done  by  a  domestic  animal,  the  plaintiff  must  show  that 
the  defendant  knew  the  animal  was  accustomed  to  do  mischief." 
Ck)llett  on  Torts,  7th  edition,  p.  100.  Again,  "  a  person  keeping  a 
mischievous  animal  with  knowledge  of  its  propensities  is  bound  to 
keep  it  secure  at  his  peril.  If  it  escapes  and  does  mischief,  he  is  liable 
without  proof  of  negligence,  neither  is  proof  required  that  he  knew  the 
animal  to  be  mischievous,  if  it  is  of  a  notoriously  fierce  or  mischievous 
species."  Pollock  on  Torts,  3d  edition,  p.  442.  In  Smith's  Leading 
Cases  in  the  notes  on  Fletcher  v.  Rylands,  10th  edition,  vol.  i,  p.  827, 
it  is  said:  "  The  law  of  England  recognizes  two  distinct  classes  of 
animals.  The  first  class  consists  of  such  animals  as  sheep,  horses, 
oxen,  and  dogs,  which  the  law  assumes  not  to  be  of  a  dangerous  nature, 
and  a  person  who  keeps  an  animal  of  this  class  is  not  liable  for  any 
damage  it  may  do,  when  not  trespassing,  unless  he  knew  that  it  was  in 
fact  dangerous.    The  other  class  consists  of  animals  which  have  not 

steer):  Jackson  v.  Baker,  24  App.  D.  C.  100;  Graham  v,  Payne,  122  Ind.  403  (ram); 
Marble  v,  Ross,  124  Mass.  44  (bull);  Marquet  v.  La  Duke,  96  Mich.  696;  Phillips 
V.  Gamer,  106  Miss.  828;  Manger  v.  Shipman,  30  Neb.  352;  Van  Leuven  v.  Lyke, 
1  N.  Y.  515;  Mahoney  v.  Dwyer,  84  Him,  348;  Malloy  v.  Starin,  113  App.  Div. 
852  (reversed  on  other  grounds,  191  N.  Y.  21);  Stamp  v.  Eighty-sixth  St.  Amuse- 
ment Co.,  95  Misc.  599  Accord. 

Compare  Hayes  v.  Miller,  150  Ala.  621,  as  to  a  wolf  domesticated  to  such  an 
extent  that  the  owner  believed  it  harmless. 

As  to  the  liabaily  of  the  owner  of  hees,  see  O'Gorman  v.  O'Gorman,  [1903]  2 
I.  R.  573;  Parsons  v.  Manser,  119  la.  88;  Petey  Mfg.  Co.  v.  Dryden,  5  Pennewill, 
166;  Lucas  v,  Pettit,  12  Ont.  Law,  448;  Notes  in  97  Am.  State  Rep.  287,  and  62 
L.  R.  A.  132.  Compare  Earl  v.  Van  Alstine,  8  Barb.  630;  Ohnsted  v.  Rich,  25 
N.  Y.  St.  Rep.  271;  Arkadelphia  v.  Clark,  52  Ark.  23. 


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426  MAUNG  KYAW  DUN  V.  MA  KYIN  [CHAP.  III. 

been  shown  by  experience  to  be  harmless  by  nature;  and  one  who 
keeps  animals  of  this  class  must  prevent  them  from  doing  injury 
under  any  circumstances,  unless  the  person  to  whom  it  is  done  brings 
it  on  himself."  In  the  English  case  on  which  these  remarks  are  based 
(Filbum  V,  People^s  Palace  Company),  it  was  held  that  an  elephant 
"  did  not  belong  to  a  class  which,  according  to  the  experience  of  man- 
kind, is  not  dangerous  to  man,  and  therefore  the  owner  kept  such  an 
animal  at  his  own  risk,  and  his  liability  for  damage  done  by  it  was  not 
affected  by  his  ignorance  of  its  dangerous  character."  Mew's  Digest 
of  English  Case  Law,  p.  199. 

I  understand  the  remarks  of  my  learned  predecessor  in  Maung  Gyi 
V,  Po  To  above  cited  to  go  no  further  than  to  suggest  that  a  man 
should  be  liable  for  injury  caused  by  his  animal,  whether  tame  or  wild, 
if  it  is  proved  that  the  injury  was  due  to  the  owner's  negligence.  In 
that  view,  it  would  not  be  necessary  to  draw  a  distinction  between 
wild  and  domestic  animals.  The  point  for  decision  would  be  whether 
the  owner  was  guilty  of  negligence  or  whether  he  used  such  care  as  in 
the  circumstances  of  the  case  was  reasonable  and  ordinarily  suflBcient. 
The  amount  of  care  required  would  vary  according  to  the  class  of  the 
animal  and  according  to  its  known  disposition.  It  could  not,  I  think, 
be  laid  down  in  this  country  that  a  man  is  liable  for  any  damage  done 
by  his  elephant  without  any  proof  of  negligence  or  that  he  knew  it  to 
be  of  a  vicious  disposition.  In  view  of  the  manner  in,  and  extent  to, 
which  elephants  are  employed  in  this  country  such  a  proposition 
would  be  manifestly  unjust. 

In  the  present  case,  therefore,  I  think  it  was  for  the  plaintiff  to 
prove  that  the  damage  done  to  his  elephant  was  caused,  or  rendered 
possible,  by  the  defendant's  negligence.  In  considering  the  question 
of  negligence,  the  defendant's  knowledge  or  want  of  knowledge  that 
her  elephant  was  of  a  vicious  disposition  would  be  an  important  point. 
In  a  suit  of  this  kind,  where  an  animal  like  an  elephant  is  concerned, 
I  think  the  burden  of  proving  negligence  is  in  the  first  place  on  the 
plaintiff  who  avers  it.  It  might  be  otherwise  if  injury  by  a  tiger  or 
bear  were  concerned. 

I  agree  with  the  Lower  Courts  in  thinking  that  it  is  not  proved  that 
the  defendant  knew  that  the  elephant  '*  Kya  Gyi  "  was  of  a  vicious 
disposition.  It  was  therefore  not  incumbent  on  her  to  take  more  than 
ordinary  precautions  with  him.  It  does  not  seem  to  be  shown  that 
ordinary'  precautions  were  neglect^.  It  is  alleged  that  "  Kya  G}^  " 
twice  gored  the  deceased  elephant  "  Do,"  and  the  mahout  called  by 
the  plaintiff  declares  that  he  had  neither  bell  nor  fetters.  On  the 
other  hand,  as  pointed  out  in  the  judgment  of  the  Court  of  First  In- 
stance, the  plaintiff  himself  admitted  that  "  Kya  Gyi  "  had  a  bell  and 
fetters  on  the  second  occasion.  It  is  admitted  that  all  the  other  ele- 
phants of  the  defendant  had  bells  and  fetters.  There  is  direct  evi- 
dence, at  least  as  good  as  that  for  the  plaintiff,  that  "  Kya  Gyi  "  was 


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SECT.  II.]  BOSTOCK-FERARI  CO.  V.  BROCKSMITH  427 

properly  provided  with  them.  In  my  opinion  it  has  not  been  proved 
that  there  was  any  n^genee  on  the  part  of  the  defendant,  and  any 
prima  facie  case  made  out  py  the  plaintiff  has  been  rebutted.  I  there- 
fore hold  that  the  Lower  Courts  have  rightly  decided  that  the  defend- 
ants are  not  liable;  and  I  dismiss  this  appeal  with  costs.^ 


BOSTOCK-FERARI  AMUSEMENT  COMPANY  v. 
BROCKSMITH 

Appellate  Coubt,  Indiana,  Februabt  14, 1895. 
Reported  in  34  Indiana  AppeUale  Court  Reports,  566. 

Action  by  Otto  Brocksmith  against  Bostock-Ferari  Amusement 
Company.    From  a  judgment  for  plaintiff,  defendant  appeals. 

CoMSTOCK,  C.  J.  The  complaint  alleges  that  the  plaintiff,  while 
driving  in  his  buggy,  was  injured  in  consequence  of  his  horse  taking 
fright  from  the  sight  of  a  bear  walking  along  a  public  street  in  the 
city  of  Vincennes.  The  action  was  begun  in  the  Circuit  Court  of 
Knox  Coimty,  and,  upon  change  of  venue,  tried  in  the  Circuit  Court 
of  Sullivan  County.  The  comt  rendered  judgment  upon  the  verdict 
of  the  jury  in  favor  of  appellee  for  $750.  The  complaint  was  in  three 
paragraphs.  The  first  was  dismissed,  and  the  cause  was  tried  upon 
the  amended  second  and  third  paragraphs,  to  which  general  denial 
was  filed. 

The  errors  relied  upon  are  the  action  of  the  comt  in  overruling  de- 
murrers to  said  second  and  third  paragraphs,  respectively,  of  the 
complaint,  and  overruling  appellant's  motion  for  a  new  trial.  Some 
of  the  reasons  set  out  in  the  motion  for  a  new  trial  are  that  the  ver- 
dict was  contrary  to  the  law,  and  was  not  sustained  by  sufficient 
evidence. 

The  question  of  the  sufficiency  of  the  second  paragraph  of  the  com- 
plaint is  not  entirely  free  from  doubt,  but  we  conclude  that  each  of 
said  paragraphs  is  sufficient  to  withstand  a  demurrer. 

It  is  sought  to  maintain  an  action  for  damages  resulting  from  the 
fright  of  a  horse  at  the  sight  of  a  bear,  which  his  keeper  and  owier 
was  leading  along  a  public  street,  for  the  purpose  of  transporting  him 
from  a  railroad  train,  by  which  he  had  been  carried  to  Vincennes,  to 
the  point  in  Vincennes  at  which  the  bear  was  to  be  an  exhibit  as  a 

1  "  Certain  ftniTpala  ferae  naturae  may  doubtless  be  domesticated  to  such  an 
extent  as  to  be  classed,  in  respect  to  the  liability  of  the  owner  for  injuries  they 
commit,  with  the  class  known  as  tame  or  domestic  animals;  but  inasmuch  as  the^ 
are  liable  to  relapse  into  their  wild  habits  and  to  become  mischievous,  the  rule  is 
that  if  they  do  so,  and  the  owner  becomes  notified  of  their  vicious  habit,  they  are 
included  in  the  same  rule  as  if  they  had  never  been  domesticated,  the  gist  of  the 
action  in  such  a  case,  as  in  the  case  of  untamed  wild  animals,  being  not  merely  the 
nec^igent  keeping  of  the  animal,  but  the  keeping  of  the  same  with  knowledge  of 
the  vicious  and  mischievous  propensity  of  the  animal.''  Clifford,  J.,  in  Spring 
Company  v.  Edgar,  99  U.  S.  645,  653. 


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428  BOSTOCK-FERARI  CO.  V.  BROCKSMITH         [CHAP.  III. 

part  of  appellant's  show.  It  is  not  claimed,  either  by  allegation  or 
proof,  that  the  show  was  in  itself  unlawful;  and  there  is  no  pretence 
that  the  transporting  of  the  bear  from  one  place  to  another  for  the 
purpose  of  exhibition  was  unlawful,  or  in  itself  negligence.  The  case 
is  therefore  one  of  the  fright  of  a  horse  merely  at  the  appearance  of  the 
bear  while  he  was  being  led  along  the  street,  was  making  no  noise  or 
other  demonstration,  and  was  in  the  control  of  his  keeper.  It  appears 
without  contradiction  from  the  evidence  that  when  the  horse  took 
fright  the  bear  was  doing  nothing  except  going  with  his  keeper.  He 
was  muzzled.  He  had  a  ring  in  his  nose  to  which  a  chain  was  at- 
tached. Said  chain  was  strong  enough  to  hold  and  control  him.  He 
had  around  his  neck  a  collar  about  two  inches  wide  and  one-half  inch 
thick,  to  which  also  was  attached  a  chain.  The  keeper  had  both 
chains  in  his  hand  when  the  accident  occurred.  The  chain  connected 
with  the  ring  in  his  nose  was  small.  The  one  connected  with  his  col- 
lar was  large.  It  was  for  the  purpose  of  chaining  him  at  night  when 
he  was  alone.  The  chains  were  strong  enough  to  control  the  bear. 
The  animal  was  characterized  by  the  witnesses  who  knew  him  as 
"  gentle,''  "  kind,"  "  docile."  His  keeper  testified  that  he  had  never 
known  him  to  be  mean  or  to  growl.  He  testified  also  that  he  never 
knew  of  a  bear  scaring  a  horse;  that  shortly  before  the  accident  the 
keeper  met  two  ladies  in  a  buggy,  and  their  horse  did  not  scare.  He 
was  described  as  of  pretty  good  size  and  brown.  One  witness  said  he 
was  a  "  large,  ugly-looking,  brown  bear." 

When  a  person  is  injured  by  an  attack  by  an  animal  ferae  naiuraej 
the  negligence  of  the  owner  is  presumed,  because  the  dangerous  pro- 
pensity of  such  an  animal  is  known,  and  the  law  recognizes  that  safety 
lies  only  in  keeping  it  secure.  2  Am.  and  Eng.  Ency.  Law  (2d  ed.), 
p.  351.  In  the  case  before  us  the  injury  did  not  result  from  any 
vicious  propensity  of  the  bear.  He  did  nothing  but  walk  in  the 
charge  of  his  owner  and  keeper,  Peter  Degeleih.  He  was  being  moved 
quietly  upon  a  pubUc  thoroughfare  for  a  lawful  purpose. 

We  have  given  the  facts  that  are  not  controverted.  There  is  also 
evidence  leading  strongly  to  support  the  claim  made  by  appellant 
that  appellee  was  guilty  of  negligence,  proximately  contributing 
to  his  injury.  Appellant  also  earnestly  argues  —  supporting  its 
argument  with  references  to  recognized  authorities  —  that  the  owner 
and  keeper  of  the  bear  was  an  independent  contractor.  But  the 
disposition  which  we  think  should  be  made  of  the  appeal  makes  it 
unnecessary  to  consider  these  questions.  The  liability  of  the  appel- 
lant must  rest  on  the  doctrine  of  negligence.  The  gist  of  the  action 
as  claimed  by  appellee  is  the  transportation  of  the  bear,  with  knowl- 
edge that  he  was  likely  to  frighten  horses,  without  taking  precaution 
to  guard  against  fright. 

1.  An  animal /era€  naturae,  reduced  to  captivity,  is  the  property  of 
its  captor,  2  Blackstone's  Comm.,  *391,  *403;  4  Blackstone*s  Comm., 
♦235,  ♦236. 


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SECT.  II.]  BOSTOCK-FERARI  CO.  V.  BROCKSMITH  429 

2.  The  owner  of  the  bear  had  the  right  to  transport  him  from  one 
place  to  another  for  a  lawful  purpose,  and  it  was  not  negligence  per 
86  for  the  owner  or  keeper  to  lead  him  along  a  public  street  for  such 
purpose.  Scribner  v.  Kelley,  (1862)  38  Barb.  14;  Macomber  r. 
Nichols,  (1876)  34  Mich.  212,  22  Am.  Rep.  522;  Ingham,  Law  of 
Animals,  p.  230. 

3.  The  conducting  of  shows  for  the  exhibition  of  wild  or  strange 
animals  is  a  lawful  business.  The  mere  fact  that  the  appearance  of  a 
chattel,  whether  an  animal  or  an  inanimate  object,  is  calculated  to 
frighten  a  horse  of  ordinary  gentleness,  does  not  deprive  the  owner  of 
such  chattel  of  his  lawful  right  to  transport  his  property  along  a  public 
highway.  Macomber  v.  Nichols,  supra;  Holland  v.  Bartch,  (1889) 
120.  Ind.  46,  16  Am.  St.  307;  Wabash,  etc.,  R.  Co.  v.  Farver,  (1887) 
111  Ind.  195,  60  Am.  Rep.  696;  Gilbert  v.  Flint,  etc.,  R.  Co.,  (1883)  51 
Mich.  488, 16  N.  W.  868,  47  Am.  Rep.  592;  Piolette  v.  Simers,  (1894) 
106  Pa.  St.  95,  51  Am.  Rep.  496.  One  must  use  his  own  so  as  not 
unnecessarily  to  injure  another,  but  the  measure  of  care  to  be  em- 
ployed in  respect  to  animals  and  other  property  is  the  same.  It  is 
such  care  as  an  ordinarily  prudent  person  would  employ  under  similar 
circumstances.  This  is  not  inconsistent  with  the  proposition  that  if  an 
animal /eroe  naturae  attacks  and  injures  a  person,  the  negligence  of  the 
owner  or  keeper  is  presumed.  The  evidence  is  that  the  horse  was  of 
ordinary  gentleness,  but  this  fact  would  not  deprive  the  appellant  of 
the  right  to  make  proper  use  of  the  street.  If  the  bear  had  been  care- 
lessly managed,  or  permitted  to  make  any  unnecessary  noise  or 
demonstration,  it  would  have  been  an  act  of  negligence. 

It  is  not  uncommon  for  horses  of  ordinary  gentleness  to  become 
frightened  at  unaccustomed  sights  on  the  public  highway.  The  auto- 
mobile, the  bicycle,  the  traction-engine,  the  steam  roller  may  each  be 
frightful  to  some  horses,  but  still  they  may  be  lawfully  used  on  the 
public  streets.  King  David  said,  "  An  horse  is  a  vain  thing  for 
safety."  Modem  observation  has  fully  justified  the  statement.  A 
large  dog,  a  great  bull,  a  baby  wagon  may  each  frighten  some  horses, 
but  their  owners  are  not  barred  from  using  them  upon  the  streets  on 
that  account.  Nor  imder  the  decisions  would  the  courts  be  warranted 
in  holding  that  the  owner  of  a  bear,  subjugated,  gentle,  docile,  chained, 
would  not,  under  the  facts  shown  in  the  case  at  the  bar,  be  permitted 
to  conduct  the  homely  brute  along  the  public  streets  because  of  his 
previous  condition  of  freedom. 

In  Scribner  v.  Kelley,  supra,  the  court  said:  "  It  does  not  appear 
that  the  elephant  was  at  large,  but  on  the  contrary  that  he  was  in 
the  care,  and  apparently  under  the  control,  of  a  man  who  was  riding 
beside  him  on  a  horse;  and  the  occurrence  happened  before  the  pas- 
sage of  the  act  of  April  2,  1862,  regulating  the  use  of  public  high- 
ways. There  is  nothing  in  the  evidence  to  show  that  the  plaintiff's 
horse  was  terrified  because  the  object  he  saw  was  an  elephant,  but 


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430  MARLOR  V.  BALL  [CHAP.  in. 

only  that  he  was  frightened  because  he  suddenly  saw  moving  upon  a 
highway,  crossing  that  upon  which  he  was  travelling,  and  fully  one 
hundred  feet  from  him,  a  large  animate  object  to  which  he  was  unac- 
customed —  non  constat  that  any  other  moving  object  of  equal  size 
and  diflfering  in  appearance  from  such  as  he  was  accustomed  to  see 
might  not  have  inspired  him  with  similar  terror.  The  injury  which 
resulted  from  his  fright  is  more  fairly  attributed  to  a  lack  of  ordinary 
courage  and  discipline  in  himself,  than  to  the  fact  that  the  object 
which  he  saw  was  an  elephant." 

4.  It  is  alleged  in  the  complaint  that  the  bear  was  an  object  likely 
to  frighten  a  horse  of  ordinary  gentleness,  which  fact  the  appellant 
well  knew.  There  is  no  evidence  that  the  bear  was  an  object  likely  to 
frighten  horses  of  ordinary  gentleness,  nor  that  the  appellant  knew 
that  the  bear  was  an  object  likely  to  frighten  horses  of  ordinary  gentle- 
ness. The  evidence  shows,  so  far  as  the  observation  of  the  keeper  and 
the  appellant  gave  information,  that  the  bear  had  not  frightened 
horses. 

The  facts  upon  the  question  of  negligence  are  undisputed,  and  that 
question  is  therefore  to  be  determined  by  the  court  as  a  matter  of  law. 

Judgment  is  reversed,  with  instruction  to  sustain  appellant's  motion 
for  a  new  trial.^ 


MARLOR  V.  BALL 

In  the  Court  of  Appeal,  March  1, 1900. 

Reported  in  16  Times  Law  Reports,  239. 

This  was  an  application  by  the  defendant  for  judgment  or  a  new 
trial  in  an  action  tried  before  Mr.  Justice  PhiUimore  and  a  special 
jury  at  Manchester.  The  action  was  brought  to  recover  damages  for 
personal  injuries  sustained  by  the  plaintiff  through  being  bitten  by  a 
zebra  belonging  to  the  defendant.  The  plaintiff  was  a  working  man. 
The  defendant  was  the  proprietor  of  the  Chadderton-hall  pleasure- 
grounds,  at  Oldham,  where  he  kept  an  exhibition  of  wild  animals. 
The  plaintiff  went  with  his  wife  and  his  brother-in-law  to  see  the  ex- 
hibition, and,  having  paid  for  admission,  entered  the  gardens.  While 
they  were  walking  along  they  found  the  door  of  a  stable  standing 
open,  and  went  in.  There  were  four  zebras  inside  the  stable,  ea<;h  in 
a  separate  stall  and  properly  tied  up  by  a  halter  to  the  manger.  The 
plaintiff  went  up  to  one  of  the  zebras  and  stroked  it.  The  animal 
kicked  out,  and  the  plaintiff  being  then  standing  against  the  partition, 
the  animal  pressed  him  through  the  partition,  and  he  fell  into  the 
next  stall,  where  another  zebra  bit  his  hand,  which  had  to  be  ampu- 

*  See  Bennet  v.  Bostock,  13  Scottish  Sheriff  Court  Reports,  50;  in  the  same 
direction  with  Scribner  v,  Kelley,  38  Barb.  14,  cited  in  the  foregoing  opinion. 


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SECT.  II.]  MARLOR  V.  BALL  431 

tated.    At  the  trial  the  jury  returned  a  verdict  for  the  plaintiff  for 
£175. 

Mr.  Montague  Lush,  for  the  defendant,  in  support  of  the  applica- 
tion for  judgment  or  a  new  trial,  contended  that  there  was  no  evidence 
on  which  the  defendant  could  be  held  liable.  The  common  law  obliga- 
tion of  a  person  who  kept  animals  ferae  naturae  was  to  keep  them 
secure,  or,  in  other  words,  to  prevent  them  from  getting  loose.  He 
was  liable  to  an  action,  if,  in  consequence  of  a  failure  on  his  part  to 
comply  with  that  obligation,  any  other  person  was  injured.  In  such 
a  case  it  was  not  necessary  for  the  plaintiff  to  allege  negligence.  But 
in  this  case  there  had  been  no  failure  to  comply  with  that  common 
law  obUgation.  Here  the  animals  were  kept  secure,  they  were  not 
loose.  The  plaintiff,  therefore,  had  to  allege  negligence,  and  the  aln  / 
leged  negligence  appeared  to  be  this,  that  the  defendant  did  not  pro-ll 
vide  a  keeper,  or  some  physical  barrier  to  prevent  people  from 
meddling  with  the  animals.  But  this  allegation  did  not  i^ow  a  cause 
of  action  at  all.  There  was  no  authority  for  saying  that  an  action  lay 
for  not  preventing  the  plaintiff  from  bringing  an  injury  on  himself. 
It  was  not  suflScient  for  the  plaintiff  here  to  show  that  the  door  was 
open.  The  door  being  open  might  be  an  invitation  to  go  in,  but  it  was 
not  an  invitation  to  meddle  by  stroking  the  zebras.  The  plaintiff 
failed  to  show  any  negligence  on  the  part  of  the  defendant,  and  he  had 
no  remedy.  Counsel  referred  to  Filbiun  v.  The  People's  Palace  and 
Aquarium  Company  (Limited),  25  Q.  B.  D.  258;  and  Memberz  v. 
The  Great  Western  Railway  Company,  14  App.  Cas.  179. 

Mr.  S,  T,  Evans  J  for  the  plaintiff,  said  the  foundation  of  the  action 
was  that  zebras  were  dangerous  animals,  and  it  was  the  duty  of  persons 
who  kept  dangerous  a,nimals  to  prevent  them  from  doing  injury.  The 
leaving  the  door  of  the  stable  imlocked  was  a  default  on  the  part  of 
the  defendant.  The  plaintiff  was  not  in  any  way  warned  that  these 
zebras  were  wild  animals.  The  evidence  taken  altogether  showed 
that  these  zebras  were  kept  in  much  the  same  way  as  horses  would 
ordinarily  be  kept.    He  referred  to  May  v.  Burdett,  9  Q.  B.  101. 

The  Court  aUowed  the  application  and  ordered  judgment  to  be 
entered  for  the  defendant. 

Lord  Justice  A.  L.  Smith  said  it  was  conceded  that  a  zebra  was 
a  dangerous  animal,  and  that  by  law  a  man  who  kept  a  dangerous  ani- 
mal must  do  so  at  his  peril,  and  that  if  any  damage  resulted,  then, 
apart  from  any  question  of  negligence,  he  was  liable  for  the  damage. 
But  that  was  subject  to  this,  that  the  person  who  complained  of  dam- 
age must  not  have  brought  the  injury  on  himself.  Where  the  plain- 
tiff did  something  which  he  had  no  business  to  do,  —  e.  g.  by  meddling, 
as  the  plaintiff  in  this  case  had  done,  —  then  the  defendant  was  not 
liable.  IMt  was  common  law,  and  it  was  also  common  sense.  In 
Filbum  V.  The  People's  Palace  (Limited),  Lord  Esher  expressly 
dealt  with  this  point.   He  there  said :  "  It  cannot  possibly  be  said  that 


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432  MARLOR  V.  BALL  [CHAP.  III. 

an  elephant  comes  within  the  class  of  animals  known  to  be  harmless  by 
nature,  or  within  that  shown  by  experience  to  be  harmless  in  this 
country,  and  consequently  it  falls  within  the  class  of  animals  that  a 
man  keeps  at  his  peril,  and  which  he  must  prevent  from  doing  injury 
under  any  circumstances,  unless  the  person  to  whom  the  injury  is  done 
brings  it  on  himself."  The  action,  therefore,  could  not  be  maintained 
on  the  common  law  liability.  The  plaintiff  then  set  up  a  claim  for 
negligence,  viz.,  that  the  door  was  not  kept  locked,  and  that  there  was 
no  keeper  at  hand.  The  evidence  showed  that  the  door  had  been 
shut,  but  had  got  opened.  If  the  plaintiff  had  been  kicked  while 
walking  along  the  stable,  an  action  might  have  lain,  but  the  plaintiff 
went  into  the  stall  and  meddled  with  the  animal.  Even  if  the  fact  of 
the  door  being  open  was  an  invitation  to  go  into  the  stable,  it  was  not 
an  invitation  to  stroke  the  animals.  In  his  opinion  there  was  no 
evidence  to  go  to  the  jury,  and  judgment  must  be  entered  for  the 
defendant. 

Lord  Justice  Collins  said  the  plaintiff's  case  was  put  on  the 
footing  of  these  zebras  being  wild  animals.  The  duty  of  a  person  who 
owned  a  wild  animal,  as  laid  down  in  May  v.  Burdett,  was  to  keep  it 
secure  at  his  peril.  The  evidence  in  this  case  all  went  to  show  that 
these  animals  were  kept  secure  within  the  meaning  of  that  case.  In 
his  opinion  there  was  no  evidence  of  any  invitation  to  go  and  tamper 
with  the  animals. 

Lord  Justice  Romer  concurred.^ 

1  Kelley  v,  Killourey,  81  Conn.  320;  Keightlinger  v,  Egan,  65  El.  236;  Feldman 
V.  Sellig,  110  111.  App.  130:  Donahue  v.  Scott  Transfer  Co.,  141  HI.  App.  174; 
Bush  V,  Wathen,  104  Ky.  548;  Quimby  v,  Woodbury,  63  N.  H.  370;  Badali  v. 
Smith,  (Tex.  Civ.  App.)  37  S.  W.  642  Accord, 

'^  There  are  expressions  in  some  of  the  cases  indicating  that  the  liability  of  the 
owner  is  not  a£fected  by  the  negligence  of  the  person  injur^.  .  .  .  If  a  person  with 
full  knowledge  of  the  evil  propensities  of  an  animal  wantonly  excites  him  or  volun- 
tarily and  imnecessarily  puts  himself  in  the  way  of  such  an  animal,  he  would  be 
adjudged  to  have  brought  the  injiuy  upon  himself,  and  ought  not  to  be  entitled  to 
recover.  In  such  a  case  it  cannot  be  said,  in  a  legal  sense,  that  the  keeping  of  the 
animal,  which  is  the  ^omm^n  of  the  ofifence,  produced  the  injury.  .  .  .  But  as  the 
owner  is  held  to  a  rigorous  rule  of  liability  on  account  of  the  danger  to  human  life 
and  limb,  by  harbormg  and  keeping  such  animals,  it  follows  that  he  ought  not  to 
be  relieved  from  it  by  slight  negligence  or  want  of  ordinary  care  [on  the  part  of  the 
plaintiff].  ...  As  negligence^  in  the  ordinary  sense,  is  not  the  ground  of  liability, 
so  contributory  negli^nce.  in  its  ordinary  meaning,  is  not  a  defence.  These  terms 
are  not  used  in  a  stnctly  legal  sense  in  this  class  of  actions,  but  for  convenience 
...  I  think  .  .  .  that  the  rule  of  liability  before  indicated  is  a  reasonable  one, 
and  that  the  owner  cannot  be  relieved  from  it  by  any  act  of  the  person  injured,  un- 
less it  be  one  from  which  it  can  be  affirmed  that  he  caused  the  injury  himself,  with 
a  full  knowledge  of  its  probable  consequences.''  Church,  C.  J.,  in  Muller  v. 
McKesson,  73  N.  Y.  195,  201,  202,  204. 

So  Woolf  V.  Chalker,  31  Conn.  121;  Vredenberg  v.  Behan,  33  La.  Ann.  627; 
Fake  v,  Addicks,  45  Minn.  37;  Malloy  i;.  Starin,  113  App.  Div.  852. 

Negligence  of  the  person  injured,  see  Graham  v.  Walsh,  14  Ga.  App.  287;  Buck- 
ley V.  Gee,  55  111.  App.  388;  Milne  v.  Walker,  59  la.  186:  Cwpenter  v.  Latta, 
29  Kan.  591;  Tolin  v.  Terrell,  133  Ky.  210;  Garland  v.  Hewes,  101  Me.  549; 
Twieg  v.  Rylandj62  Md.  380:  SpeUman  v.  Dyer,  186  Mass.  176;  Ryan  v.  Marren, 
216  Mass.  556;  Warrick  v.  Farley,  95  Neb.  565;  Earhart  v.  Youngblood,  27  Pa. 
St.  331. 


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SECT.  II.]  MASON  V.  KEELING  433 

MASON  V.  KEELING 
In  the  King's  Bench,  Michaelmas  Term,  1699. 

Reported  in  12  Modem  Reports,  332. 

Action  on  the  case,  in  which  the  plaintiff  declared  that  on  the 
twentieth  of  June,  in  the  eleventh  of  the  king,  the  defendant  quendam 
canem  molossum  valde  ferocem  did  keep,  and  let  him  go  loose  un- 
muzzled per  publica  compita,  so  that  pro  defectu  curce  of  the  defendant 
the  plaintiff  was  bit  and  worried  by  the  said  dog,  as  he  was  peaceably 
going  about  his  business  in  such  a  street.  There  was  another  count,  in 
which  it  was  laid  that  the  defendant  knew  the  dog  ad  mordend.  assuet. 
To  the  first  count  there  was  a  demiurer,  and  to  the  second  not  guilty.* 

Gould,  J.  No  doubt  but  in  the  case  of  sheep  there  ought  to  be  a 
sdens,  because  that  is  an  accidental  quality,  and  not  in  the  nature  of 
a  dog.  And  as  to  property  of  a  dog,  the  Books  distinguish;  for  a  man 
has  a  property  in  a  dog  that  is  a  mastiff  or  spaniel,  for  the  one  is  for 
the  guard  of  his  house,  the  other  for  his  pleasure;  but  this  here  is  a 
mongrel,  and  laid  to  be  valde  ferocem,  and  that  must  be  an  innate 
fierceness,  and  not  accidental ;  and  if  a  dog  be  assuet,  to  bite  cows,  and 
the  master  know  it,  that  will  not  be  suflScient  knowledge  to  make  him 
liable  for  his  biting  sheep.  Besides,  this  case  is  distinguishable  in  re- 
spect of  the  place,  for  the  law  takes  notice  of  highway,  and  is  a  secu- 
rity for  passengers;  and  it  would  be  dangerous  to  keep  such  dogs  near 
the  highway,  where  all  sorts  of  people  pass  at  all  hours;  and  to  main- 
tain this  issue,  they  must  give  a  natural  fierceness  in  evidence. 

Holt,  C.  J.  If  it  had  been  said  that  the  defendant  knew  the  dog 
to  heferox,  I  should  think  it  enough.  The  difference  is  between  things 
in  which  the  party  has  a  valuable  property,  for  he  shall  answer  for  all 
damages  done  by  them;  but  of  things  in  which  he  has  no  valuable 
property,  if  they  are  such  as  are  naturally  mischievous  in  their  kind, 
he  shall  answer  for  hurt  done  by  them  without  any  notice;  but  if  they 
are  of  a  tame  nature,  there  must  be  notice  of  the  ill  quality;  and  the 
law  takes  notice  that  a  dog  is  not  of  a  fierce  nature,  but  rather  the 
contrary;  and  the  presumption  is  against  the  plaintiff;  for  can  it  be 
imagined  a  man  would  keep  a  fierce  dog  in  his  family  wittingly  ?  If 
any  beast  in  which  I  have  a  valuable  property  do  damage  in  another's 
soil,  in  treading  his  grass,  trespass  will  lie  for  it;  but  if  my  dog  go 
into  another  man's  soil,  no  action  will  lie.  See  the  case  of  Millan  v. 
Hawtree,  1  Jones,  131,  Poph.  161,  Latch,  13,  119,  that  scienter  is  the 
git  of  the  action;  and  so  is  1  Cro.,  where  it  was  doubted  whether  the 
scienter  should  go  to  the  keeping  or  quality;  nor  does  it  appear  here 
but  it  was  an  accidental  fierceness,  or  suppose  it  were  an  innate  one  to 
this  dog  particularly;  and  it  had  been  given  to  the  owner  but  an  hour 

*  Arguments  omitted.    Compare  report  of  same  case  in  1  Ld.  Raym.  606. 


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434  DE  GRAY  V,  AIURRAY  [CHAP.  III. 

before,  shall  he  take  notice  of  all  the  qualities  of  his  dog  at  his  peril, 
or  shall  he  have  his  action  against  the  giver  for  bestowing  him  a 
naughty  dog  ?  In  case  a  dog  bites  pigs,  which  almost  all  dogs  will  do, 
a  scienter  is  necessary.  1  Cro.  255.  And  I  do  not  doubt  but  if  it  be 
generally  laid  that  a  dog  was  used  to  bite  animalia,  and  the  defendant 
knew  of  it,  it  will  be  enough  to  charge  him  for  biting  of  sheep,  &c.; 
and  by  animalia  shall  not  be  intended  frogs  or  mice,  but  such  in  which 
the  plaintiff  has  property. 

And  judgment  was  given  for  the  defendant  by  Holt,  Chief-Justice, 
and  TxTRTON,  Justice;  Gould,  J.,  mviante  opinionem  siuim,^ 


Db  gray  v.  MURRAY 

Supreme  Court,  New  Jersey,  June  8, 1903. 

Reported  in  69  New  Jersey  Law  Reports^  458. 

Gummere,  C.  J.  This  was  an  action  to  recover  for  injuries  re- 
sulting to  the  plaintiff  in  error  (the  plaintiff  below)  from  the  bite  of  a 
dog,  owned  by  the  defendant  in  error,  which  attacked  her  while  she 
was  walking  on  the  public  street.  At  the  close  of  the  testimony  the 
trial  judge  directed  a  verdict  for  the  defendant,  and  the  plaintiff  seeks 
to  review  the  judgment  entered  upon  that  verdict. 

It  is  the  settled  law  that  the  owner  of  a  dog  will  not  be  held  respon- 
sible for  injuries  resulting  to  another  person  from  its  bite  unless  it 
be  shown  tiiat  the  dog  had  previously  bitten  some  one  else,  or  was 
vicious,  to  the  knowledge  of  the  owner.  Smith  v.  Donohue,  20  Vroom, 
648,  and  cases  cited.  . 

[After  discussing  the  evidence,  and  holding  that  there  was  an  utter 
failure  to  prove  scienter.] 

^  Sed  quaere:  for  in  s.  c.  1  Ld.  "Ray.  608,  it  is  said  that  the  case  was  adjourned, 
and  that  afterwards  the  parties  agreed,  and  therefore  no  judgment  was  given.  — 
Reporter's  Note. 

As  to  the  requirement  of  scienter  in  case  of  injury  by  domestic  animals,  Shaw  v. 
Craft,  37  Fed.  317;  Kitchens  v,  Elliott,  114  Ala.  290;  Finney  v.  Curtis,  78  Cal. 
498;  Warner  v.  Chamberlain,  7  Houst.  18;  Reed  v.  Southern  Express  Co.,  96  Ga. 
108;  Domm  v.  HoUenbeck,  259  111.  382;  Indianapolis  Abattoir  Co.  v.  Bailey.  54 
Ind.  App.  370;  Trumble  v,  Happy,  114  la.  624;  Ballou  v.  Humphrey,  8  Kan.  219; 
Murray  v.  Young,  12  Bush.  337;  Goode  v.  Martin,  57  Md.  606;  Dix  v.  Somerset 
Coal  (Jo.,  217  Mass.  146;  Durrell  v.  Johnson.  31  Neb.  796;  Smith  v.  Donohue,  49 
N.  J.  Law,  548;  Vrooman  v.  Lawyer,  13  Johns.  339;  Dufer  v.  Culljr,  3  Or.  377; 
Robinson  v.  Marino,  3  Wash.  434;  Johnston  v.  Mack  Mfg.  Co.,  65  W.  Va.  644; 
Kertsohacke  v,  Ludwig,  28  Wis.  430  Accord, 

Liability  for  irijury  to  trespassers  in  case  of  scienter:  Woolf  v.  Chalker,  31  Conn. 
121;  Conwayv.  Grant,  88  Ga.  40;  Entrebretson  v,  Bremer,  128  Minn.  232;  Loomis 
V.  Terry,  17  Wend.  496;  Pierret  v.  MoUer,  3  E.  D.  Smith,  574;  Sherfey  v.  Bartley, 
4  Sneed,  58. 

Liability  where  dog  runs  at  large  unmuzzled  in  violation  of  ordinance:  Buchanan 
V.  Stout,  139  App.  Div.  204. 

Where  vicious  dog  kiUs  trespassing  dog:  Wiley  v.  Slater.  22  Barb.  506. 

What  consUtuUs  knowledqef  see:  Shaw  v.  Craft,  37  Fed.  317;  Barday  v.  Hart- 
man,  2  Marv.  351;  Keightlinger  v.  Egan,  65  111.  235;  Domm  v.  HoUenbeck,  259 


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SECT.  II.]  DE  GRAY  V.  MURHAT  435 

But  even  if  the  evidence  submitted  would  support  the  conclusion 
that  the  dog  had  a  propensity  to  bite,  and  that  what  the  defendant 
heard  about  its  attack  on  the  boy  charged  him  with  knowledge  of  that 
propensity,  the  direction  of  a  verdict  in  his  favor  was  not  erroneous. 
In  England,  and  in  some  of  our  sister  states,  it  is  held  that  the  owner 
of  an  animal  which  has  a  propensity  to  attack  and  bite  mankind, 
who  keeps  it  with  the  knowledge  that  it  has  such  a  propensity,  does 
so  at  his  peril,  and  that  his  liability  for  injuries  inflicted  by  it  is  ab- 
solute. A  leading  case  is  that  of  May  v.  Burdett,  9  Q.  B.  (n.  b.)  112, 
in  which  it  is  stated  that  "  the  conclusion  to  be  drawn  from  all  the 
authorities  appears  to  be  this:  that  a  person  keeping  a  mischievous 
animal,  with  Imowledge  of  its  propensity,  is  bound  to  keep  it  seeing  at 
his  peril,  and  that  if  it  does  mischief,  negligence  is  presumed  without 
express  averment.  The  negligence  is  in  keeping  such  an  animal  after 
notice."  Subsequently,  the  Court  of  Exchequer  Chamber,  adopting 
as  accurate  the  principle  imderlying  the  decision  of  May  v.  Burdett, 
and  referring  to  the  opinion  in  that  case,  among  others,  as  an  author- 
ity for  its  conclusion,  declared,  in  the  case  of  Fletcher  v.  Rylands, 
L.  R.  1  Exch.  265,  that  "  one  who,  for  his  own  purposes,  brings  upon 
his  land,  and  keeps  there,  anything  likely  to  do  mischief  if  it  escapes, 
is  prima  fade  answerable  for  all  the  damage  which  is  the  natural  con- 
sequence of  its  escape."  The  application  of  this  principle  led  the  court 
to  fix  liabUity  upon  the  owner  of  land,  who  had  stored  water  in  a  res- 
ervoir built  thereon,  for  injury  done  to  adjoining  property  by  water 
escaping  from  the  reservoir,  notwithstanding  that  such  escape  was 
not  due  to  any  negligence  on  the  part  of  the  owner.  Ten  years  after 
the  decision  of  Fletcher  v.  Rylands,  the  rule  laid  down  in  that  case  was 
applied  in  this  state,  at  circuit,  in  the  case  of  M&rshall  v.  Welwood,  9 
Vroom,  339,  and  the  owner  of  a  steam  boiler,  which  blew  up  and 
wrecked  adjacent  property,  was  held  hable  for  the  damage  done,  not- 
withstanding the  fact  that  the  bursting  of  the  boiler  was  not  due  to 
any  negligence  on  his  part.  The  case  was  subsequently  reviewed  here, 
on  rule  to  show  cause,  and  this  court,  in  a  masterly  opinion  by  the  late 
Chief  Justice  Beasley,  expressly  disapproved  of  the  doctrine  laid  down 
in  Fletcher  v.  Rylands  (which,  as  I  have  already  stated,  is  rested, 

HI.  382;  Kolb  v.  Klages,  27  lU.  App.  631;  Cameron  p.  Bryan,  89  la.  214;  Holt  v, 
Myers,  47  Ind.  App.  118:  Murray  v.  Young,  12  Bush,  337;  Twigg  v.  Ryland,  62 
Md.  380;  Knowles  v.  Mulder,  74  Mich.  202;  Slater  v,  Sorge.  166  Mich.  173;  Rowe 
V.  Ehrmanntraut,  92  Minn.  17;  Reynolds  v.  Hussey,  64  N.  H.  64;  Emmons  ». 
Stevane,  73  N.  J.  Law.  349,  77  N.  J.  Law,  570:  Rider  v.  White,  66  N.  Y.  64;  Brice 
».  Bauer,  108  N.  Y.  428;  Martin  v.  Borden,  123  App.  Div.  66;  McGarry  v.  New 
York  R.  Co.,  60  N.  Y.  Sup.  Ct.  367;  Hayes  v.  Smith,  62  Ohio  St.  161;  Holden  v. 
Shattuck,  34  Vt.  336. 

Knowledge  of  nngle  vicious  act:  Eastman  v.  Scott,  182  Mass.  192:  Kittredse  v, 
Elliott,  16  N.  H.  77;  Keenan  v.  Gutta  Percha  Mfg.  Co..  46  Hun,  644;  Cockerham 
V.  Nixon,  11  Ired.  269.  Compare:  Linck  v.  Scheflfelj  32  111.  App.  17;  Cooper  v. 
Cashman,  190  Mass.  76;  Buckley  v.  Leonard,  4  Demo,  600. 

Statutes  making  owners  or  keepers  of  dogs  liable  irrespective  of  scienter  or  of 
negligence  in  keepmg  are  not  uncommon,  but  vary  greatly  in  detail. 


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436  DE  GRAY  V.  MURRAY  [CHAP.  IH. 

among  other  decisions,  on  May  v.  Burdett),  and  declared  that  no  man 
is,  in  law,  an  insurer  that  the  acts  which  he  does,  such  acts  being  lawful 
and  done  with  care,  shall  not  injuriously  affect  others;  and  that  an  in- 
jury which  results  from  a  lawful  act,  done  in  a  lawful  manner,  and 
without  negligence  on  the  part  of  the  person  doing  the  act,  will  not 
support  an  action.  Applying  that  principle  to  the  case  in  hand,  this 
court  then  held  that  the  owner  of  a  steam  boiler,  which  he  has  in  use 
on  his  own  property,  is  not  responsible,  in  the  absence  of  negligence, 
for  the  damages  done  by  its  bursting.  The  principle  laid  down  in 
Marshall  v.  Welwood  was  reiterated  by  this  court  in  the  case  of  Hill  v. 
Ulshowski,  32  Id.  375. 

The  right  of  a  man  to  keep  a  vicious  dog  for  the  protection  of  his 
home  and  property  is  conceded  in  the  case  of  Roehers  v,  Remhoff,  26 
Vroom,  475.  He  is,  of  course,  bound  to  exercise  a  degree  of  care,  com- 
mensurate with  the  danger  to  others  which  will  follow  the  dog's  es- 
cape from  his  control,  to  so  secure  it  that  it  will  not  injure  any  one 
who  does  not  unlawfully  provoke  or  intermeddle  with  it.  Worthen  v. 
Love,  60  Vt.  285.  But  if  the  owner  does  use  such  care,  and  the  dog 
nevertheless  escapes  and  inflicts  injury,  he  is  not  liable. 

In  the  case  now  under  consideration  the  undisputed  evidence  makes 
it  clear  that  the  defendant  fully  discharged  the  duty  of  using  due 
care  to  prevent  the  escape  of  his  dog  from  his  premises,  and  that  the 
plaintiff's  injury  was  not  due  to  any  neglect  in  that  regard  upon  his 
part.  She  was  bitten  in  the  early  morning,  between  half-past  six  and 
seven  o'clock.  On  the  preceding  evening  the  defendant  shut  the  dog 
in  his  carpenter  shop  (which  adjoined  his  dwelling)  and  locked  him 
in.  During  the  night  the  dog  gnawed  away  the  woodwork  from 
around  the  lock  of  the  door  to  such  an  extent  that  the  lock  became 
detached,  thus  permitting  the  door  to  open  and  the  dog  to  escape. 
That  a  reasonably  prudent  man  would  not  have  anticipated  any  such 
occurrence  must  be  admitted. 

The  judgment  under  review  shovM  he  affirmed,^ 

»  Worthen  v.  Love,  60  Vt.  285  Accord.  Baker  v.  Snell,  [1908]  2  K.  B.  352,  825; 
Laverone  v,  Mangianti,  41  Cal.  138;  MuUer  v.  McKesson,  73  N.  Y.  195;  Dockerty 
V.  Hudson,  125  Ind.  102  Contra. 

Compare:  The  Lord  Derby,  17  Fed.  265;  Melsheimer  v.  Sullivan,  1  Col.  App. 
22;  Woodbridge  v.  Marks,  17  App.  Div.  139;  Lloyd  v.  Bowen,  170  N.  C.  216; 
Hayes  v.  Smith,  62  Ohio  St.  161;  Fallon  v.  O'Brien,  12  R.  I.  518. 

See  also  Vredenberg  v.  Behan,  33  La.  Ann.  627  (bear  teased  by  third  person 
broke  loose  and  injiu-ed  plaintiff);  Kinmouth  v.  McDougall,  19  N.  Y.  Supp.  771 
(ram  teased  by  children  mjured  plaintiff). 

See  Bevan,  The  Responsibility  at  Common  Law  for  the  Keeping  of  Animals,  22 
Harvard  Law  Rev.  465. 


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SECT.  II.]  CROWLEY  V.   GROONELL  437 

CROWLEY  V.  GROONELL 

Supreme  Court,  Vermont,  February  9, 1901. 

Reported  in  73  Vermont  ReporU,  45. 

Case  for  an  injury  to  the  plaintiff  by  the  defendant's  dog.  Plea, 
the  general  issue.  Trial  by  jury,  Rutland  County,  March  Term,  1900, 
Rowell,  J.,  presiding.  Verdict  and  judgment  for  the  plaintiff.  The 
defendant  excepted. 

It  appeared  that  the  plaintiff,  an  old  man,  was  a  neighbor  of  the  de- 
fendant and  went  one  morning  to  the  defendant's  bam,  where  the  lat- 
ter was,  to  buy  some  potatoes  of  him;  that  when  the  plaintiff  got 
near  the  bam,  the  defendant's  dog,  which  was  large,  and  was  lying 
near  the  bam  door,  assaulted  the  plaintiff  by  jumping  up  and  putting 
his  feet  upon  him  and  throwing  him  down,  breaking  his  hip.  The 
testimony  was  conflicting  as  to  whether  this  assault  was  vicious  or 
playful  and  as  to  the  propensities  of  the  dog  known  to  the  plaintiff. 

Watson,  J.  The  only  exception  upon  which  the  defendant  relies 
is  the  one  to  that  part  of  the  charge  where  the  court  said  that  a  cross 
and  savage  disposition  on  the  part  of  the  dog  was  not  necessary  in 
order  to  impose  liability;  that  a  mischievous  propensity  to  conunit 
the  kind  of  assault  complained  of  was  enough  if  the  plaintiff's  case 
was  otherwise  made  out;  and  that  in  respect  to  imposing  liability,  it 
made  no  difference  whether  such  assault  proceeded  from  good  nature 
or  ill  nature,  from  ugliness  or  plajrfulness. 

The  defendant  contends  that  the  duty  of  restraint  attaches  only 
when  the  owner  or  keeper  has  reason  to  apprehend  that  the  dog 
may  do  damage  by  reason  of  its  viciousness  or  ferocity,  and  that 
the  acts  of  the  dog,  proceeding  from  good  nature  or  plajrfulness, 
cannot  render  the  defendant  liable.  If  a  man  have  a  beast  that 
is  ferae  naturae  as  a  lion,  a  bear,  a  wolf,  if  he  get  loose  and  do  harm 
to  any  person,  the  owner  is  liable  to  an  action  for  damages,  though 
he  have  no  particular  notice  that  he  had  done  any  such  thing  before. 
The  same  principle  applies  to  damages  done  by  domestic  animals, 
except  that  as  to  them,  the  owner  must  have  seen  or  heard  enough 
to  convince  a  man  of  ordinary  pmdence  of  the  animal's  inclination 
to  commit  the  class  of  injuries  complained  of.  With  notice  to  the 
owner  of  such  propensity  in  the  animal,  he  is  liable  for  whatever 
damages  may  be  suffered  by  person  or  property  therefrom.  It  makes 
no  difference  whether  the  animal  was  of  cross  and  savage  disposition 
and  conunitted  the  injury  by  reason  of  its  viciousness  and  ferocity, 
or  whether  such  injury  resulted  from  good  nature  and  plajrfulness  — 
the  intent  of  the  animal  is  not  material.  The  owner  or  keeper  having 
knowledge  of  its  disposition  to  commit  such  injuries  must  restrain  it 
at  his  peril,  and  it  is  no  answer  to  say  that  the  animal  was  not  cross 
or  savage  and  was  in  good  nature  and  plajrfulness. 


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438  cox  V.  BURBIDGE  [CHAP.  III. 

In  State  v.  McDermott,  6  Atl.  Rep.  653  [49  N.  J.  Law,  163],  at 
the  close  of  the  plaintiff's  evidence,  the  defendant  moved  for  a  non- 
suit on  the  ground  that  it  did  not  appear  that  the  dog  had  bitten 
McDermott  maliciously,  and  also  on  the  ground  that  there  was  no  evi- 
dence that  the  dog  had  bitten  other  persons  except  in  play,  or  that 
the  defendant  had  knowledge  of  the  propensity  of  the  dog  to  bite. 
The  motion  was  overruled.  It  was  contended  that  although  several 
persons  had  been  bitten  by  the  dog,  of  which  the  defendant  had 
notice,  yet  it  appeared  that  in  every  instance  the  biting  occurred 
while  the  dog  was  in  a  plajrful  mood;  that  damages  could  not  be  re- 
covered where  it  was  shown  that  the  dog  had  a  propensity  to  bite 
only  in  play;  and  that  to  justify  a  recovery,  it  must  appear  that  the 
dog  was  in  the  habit  of  biting  mankind  while  in  an  angry  mood,  actu- 
ated by  a'  ferocious  spirit.  It  was  held  that  this  was  not  the  law,  — 
that  an  action  could  be  maintained  against  the  owner  by  a  party  in- 
jured upon  evidence  that  a  dog,  with  the  knowledge  of  the  owner,  had 
a  mischievous  propensity  to  bite  mankind,  whether  in  anger  or  not; 
for  in  either  case,  the  person  bitten  would  suffer  injury,  and  that  mis- 
chievous propensity,  within  the  meaning  of  the  law,  was  a  propensity 
from  which  injury  is  the  natural  result. 

There  vxis  no  error  in  the  charge,  and  jvdgmeni  is  affirmed.^ 


Erle,  C.  J.,  IN  COX  V.  BURBIDGE 
(1863)  13  Common  Bench,  New  Series,  435-437. 

I  AM  of  opinion  that  this  rule  must  be  made  absolute,  on  the  ground 
that  there  was  a  total  absence  of  evidence  to  support  the  cause  of 
action  alleged.  The  facts  I  take  to  be  these:  The  plaintiff,  a  child  of 
tender  age,  was  lawfully  upon  the  highway,  and  a  horse,  the  property 
of  the  defendant,  was  straying  on  the  highway.  As  between  the 
owner  of  the  horse  and  the  owner  of  the  soil  of  the  highway  or  of 
the  herbage  growing  thereon,  we  may  assume  that  the  horse  was  tres- 
passing; and,  if  the  horse  had  done  any  damage  to  the  soil,  the  owner 
of  the  soil  might  have  had  a  right  of  action  against  his  owner.  So, 
it  may  be  assumed,  that  if  the  place  in  question  were  a  public  high- 
way, the  owner  of  the  horse  might  have  been  liable  to  be  proceeded 
against  under  the  Highway  Act.  But,  in  considering  the  claim  of  the 
plaintiff  against  the  defendant  for  the  injury  sustained  from  the  kick, 
the  question  whether  the  horse  was  a  trespasser  as  against  the  owner 
of  the  soil,  or  whether  his  owner  was  amenable  under  the  Highway 
Act,  has  nothing  to  do  with  the  case  of  the  plaintiff.  I  am  also  of 
opinion  that  so  much  of  the  argument  which  has  been  addressed  to  us 

^  Compare  Merritt  v.  Matchett,  135  Mo.  App.  176. 


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SECT,  n.]  cox  V.  BURBIDG£  439 

on  the  part  of  the  plaintiff  as  assumes  the  action  to  be  founded  upon 
the  ne^gence  of  the  owner  of  the  horse  in  allowing  it  to  be  upon  the 
road  unattended,  is  not  tenable.  To  entitle  the  plaintiff  to  maintain 
the  action,  it  is  necessary  to  show  a  breach  of  some  legal  duty  due  from 
the  defendant  to  the  plaintiff;  and  it  is  enough  to  say  that  there  is  no 
e\adence  to  support  the  aflBrmative  of  the  issue  that  there  was  negh- 
gence  on  the  part  of  the  defendant  for  which  an  action  would  lie  by 
the  plaintiff.  The  simple  fact  found  is,  that  the  horse  was  on  the 
highway.  He  may  have  been  there  without  any  n^gence  of  the 
owner:  he  might  have  been  put  there  by  a  stranger,  or  might  have 
escaped  from  some  enclosed  place  without  the  owner's  knowledge. 
To  entitle  the  plaintiff  to  recover,  there  must  be  some  affirmative  proof 
of  negligence  in  the  defendant  in  respect  of  a  duty  owing  to  the  plain- 
tiff. But,  even  if  there  was  any  negUgence  on  tJbe  part  of  the  owner 
of  the  horse,  I  do  not  see  how  that  is  at  all  connected  with  the  dam- 
age of  which  the  plaintiff  complains.  It  appears  that  the  horse  was 
on  the  highway,  and  that,  without  anything  to  account  for  it,  he 
struck  out  and  injured  the  plaintiff.  I  take  the  well-known  distinction 
to  apply  here,  that  the  owner  of  an  animal  is  answerable  for  any  dam- 
age done  by  it,  provided  it  be  of  such  a  nature  a«  is  likely  to  arise  from 
such  an  animal,  and  the  owner  knows  it.  Thus,  in  the  case  of  a  dog, 
if  he  bites  a  man  or  worries  sheep,  and  his  owner  knows  that  he  is 
accustomed  to  bite  men  or  to  worry  sheep,  the  owner  is  responsible; 
but  the  party  injured  has  no  remedy  unless  the  scienter  can  be  proved. 
This  is  very  familiar  doctrine;  and  it  seems  to  me  that  there  is  much 
stronger  reason  for  applying  that  rule  in  respect  of  the  damage  done 
here.  The  owner  of  a  horse  must  be  taken  to  know  that  the  animal 
will  stray  if  not  properly  secured,  and  may  find  its  way  into  his  neigh- 
bor's com  or  pasture.  For  a  trespass  of  that  kind,  the  owner  is  of 
course  responsible.  But  if  the  horse  does  soniething  which  is  quite 
contrary  to  his  ordinary  nature,  —  something  which  his  owner  has  no 
reason  to  expect  he  will  do,  he  has  the  same  sort  of  protection  that 
the  owner  of  a  dog  has;  and  everybody  knows  that  it  is  not  at  all  the 
ordinary  habit  of  a  horse  to  kick  a  child  on  a  highway.  I  think  the 
groimd  upon  which  the  plaintiff's  counsel  rests  his  case  fails.  It  re- 
duces itself  to  the  question  whether  the  owner  of  a  horse  is  liable  for 
a  sudden  act  of  a  fierce  and  violent  nature  which  is  altogether  contrary 
to  the  usual  habits  of  the  horse,  without  more.* 

1  Hadwell  v.  Righton.  [1907]  2  K.  B.  345;  Higginfl  v.  Searle,  25  Times  L.  R. 
301;  Klenberg  ».  Russell,  125  Ind.  531;  Dix  ».  Somerset  Coal  Co.,  217  Mass.  146; 
Shipley  v,  Colclough,  81  Mich.  624;  Smith  v.  Donahue,  49  N.  J.  Law,  548;  Meegan 
V.  McKay,  1  Okl.  59  Accord,    But  see  Barnes  v.  Chapin,  4  All.  444. 


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440  DICKSON  V.  MCCOY  [CHAP.  III. 

DICKSON  V.  McCOY 

Court  op  Appeals,  New  York,  June  Term,  1868. 

Reported  in  39  New  York  Reports,  400. 

This  was  an  action  for  injury  to  the  plaintiff  by  the  horse  of  the 
defendant.  The  plaintiff,  a  child  of  ten  years,  was  passing  the  stable 
of  the  defendant,  upon  the  sidewalk  of  a  populous  street  in  the  city  of 
Troy,  when  the  defendant's  horse  came  out  of  the  stable,  going  loose 
and  unattended,  and,  in  passing,  kicked  the  plaintiff  in  the  face.  The 
complaint  alleged  that  the  horse  was  ''  of  a  malicious  and  mischievous 
disposition,  and  accustomed  to  attack  and  injure  mankind; "  also, 
that  the  defendant  "  wrongfully  and  negligently  suffered  the  said 
horse  to  go  at  large  in  and  upon  the  public  streets,"  etc.  The  proof  as 
to  the  disposition  of  the  horse  was  only  to  the  effect  that  he  was  young 
and  plajrful,  and,  when  loose  in  the  street,  was  accustomed  to  run  and 
kick  in  the  air,  but  had  never  been  seen  to  kick  at  any  person.  The 
defendant  moved  for  a  nonsuit,  on  the  groimd  that  there  was  no  proof 
that  the  horse  was  vicious,  which  was  refused.  The  defendant  also  re- 
quested the  court  to  charge  that  there  was  no  proof  that  the  horse  was 
possessed  of  any  vicious  propensity,  or  mischievous  habit,  which  re- 
quired the  defendant  to  exercise  special  care  over  him;  which  the 
comi;  declined  to  charge.  The  court  did  charge,  that  "  it  was  for  the 
jury  to  find,  under  the  evidence,  whether  the  defendant  was  or  was  not 
guilty  of  negligence  in  permitting  the  animal,  which  did  the  injury 
complained  of,  to  run  at  large,  as  detailed  by  the  witnesses  on  the  part 
of  the  plaintiff,"  etc. 

The  jury  found  a  verdict  for  the  plaintiff  for  $500,  which  was 
afl&rmed,  on  appeal,  at  the  General  Term,  and  the  defendant  appeals 
to  this  court. 

DwiGHT,  J.  I  agree  with  the  counsel  for  the  defendant  that  there 
is  no  proof  in  the  case  to  sustain  the  allegation  in  the  complaint,  that 
this  horse  was  vicious  and  accustomed  to  attack  and  injure  mankind. 
The  fact  that  a  horse  is  young  and  plajrful,  that  he  kicks  in  the  air, 
and  runs  and  gambols  when  loose  in  the  street,  is  no  proof  of  a  mali- 
cious or  vicious  disposition.  But  I  regard  the  allegation  as  unneces^ 
sary,  and  the  absence  of  proof  on  the  point  as  not  affecting  the  right 
to  recover.  The  finding  of  the  jury,  under  the  charge  of  the  court,  was 
clearly  to  the  effect  that  the  defendant  was  guilty  of  negligence  in 
suffering  his  horse  to  go  at  large  upon  the  sidewalk,  as  shown  in  the 
case.  And  there  was  a  sufficient  allegation  to  that  effect  in  the  com- 
plaint. It  is  not  necessary  that  a  horse  should  be  vicious  to  make  the 
owner  responsible  for  injury  done  by  him  through  the  owner's  negli- 
gence. The  vice  of  the  animal  is  an  essential  fact  only  when,  but  for 
it,  the  conduct  of  the  owner  would  be  free  from  fault.  If  the  most 
gentle  horse  be  driven  so  negligently  as  to  do  injury  to  persons  or 


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SECT,  n.]  DECKER  V.  GAMMON  441 

property,  the  owner  or  driver  will  be  responsible.  Certainly,  not  less 
so  if  the  horse  be  negligently  turned  loose  in  the  street  without  re- 
straint or  control.  The  motion  for  a  nonsuit  was  properly  denied. 
The  only  question  in  the  case  was  that  propounded  by  the  court  to  the 
jury,  "  was  the  defendant  guilty  of  negligence  in  permitting  the  horse 
to  go  at  large  in  the  street  ?  "  The  court,  I  think,  might  very  properly 
have  charged  as  requested  by  the  defendant,  that  there  was  no  proof  to 
justify  the  jury  in  finding  that  the  horse  was  possessed  of  any  vicious 
propensity  or  mischievous  habit.  And,  yet,  it  is,  in  one  sense,  a  mis- 
chievous habit  for  a  horse  to  run  and  play  in  the  public  streets. 
Though  it  is  no  proof  of  a  mischievous  disposition,  it  is  liable  to 
produce  mischievous  results.  There  was,  therefore,  no  error  in  the 
refusal  to  charge  as  requested.  The  instructions  of  the  court  to  the 
jury  were  correct,  and  the  verdict  is  conclusive  upon  all  the  questions 
in  the  case.  The  judgmerU  must  be  affirmed. 

[The  opinion  of  Grover,  J.,  is  omitted.]  ^ 


DECKER  V.  GAMMON 
Supreme  Judicial  Court,  Maine,  1857. 

Reported  in  44  Maine  ReporUf  322. 

This  is  an  action  on  the  case  *  to  recover  the  value  of  a  horse 
alleged  to  have  been  injured  by  the  defendant'sihorse,  and  comes  for- 
ward on  exceptions  to  the  rulings  of  Goodenow,  J. 

The  plaintiJBf  introduced  evidence  tending  to  prove  that  at  night,  on 
the  13th  of  September,  1855,  he  put  his  horse  into  his  field  well  and 
iminjured.  The  next  morning,  September  14,  his  horse  and  the  de- 
fendant's were  together  in  his,  the  plaintiff's  close,  the  defendant's 
horse,  having,  diu*ing  the  night,  escaped  from  the  defendant's  en- 
closure, or  from  the  highway,  into  the  close  of  the  plaintiff,  and  that 
the  plaintiff's  horse  was  severely  injured  by  the  defendant's  horse,  by 

*  Jewett  V,  Gage,  55  Me.  538  (hog)  Accord. 

Compare  Coulter,  J.,  in  Goodman  v.  Gay,  16  Pa.  St.  188,  193, 194;  Corcoran 
V.  KeUy,  61  Misc.  323. 

A  fortiori  if  one  turns  loose  a  vicious  animal:  McGuire  v,  Ringrose,  41  La.  Ann. 
1029. 

Injuries  by  animaU  running  at  large  contrary  to  statute,  see:  Williams  v.  Bren- 
nan,  213  Mass.  28;  Low  v.  Barnes,  30  Okl.  15;  Palmer  v.  Saccocia,  33  R.  I.  476. 

*  In  the  argument  for  defendant  the  declaration  is  set  out  as  follows:  — 

"  In  a  plea  of  the  case  for  that  the  said  plaintiff,  on  the  14th  day  of  September, 
1856,  was  possessed  of  a  valuable  horse,  of  the  value  of  $^125.00,  which  was  peace- 
ably and  of  right  depasturing  in  his  own  close,  and  the  defendant  was  possessed  of 
another  horse,  vicious  and  unrulv,  which  was  runnine  at  large  where  of  right  it 
ought  not  to  be,  and  being  so  unlawfully  at  large,  broke  into  the  plaintiff's  close, 
at  the  time  aforesaid,  and  viciously  and  wantonly  kicked,  reai^  upon,  aiid 
injured  the  plaintiff's  horse,  so  that  his  deiith  was  caused  thereby,  which 
vicious  habits  and  propensities  were  well  known  to  the  defendant  at  the  time 
af9resaid.   To  the  damage,  &c." 


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442  DECKER  V.  GAMMON  [CHAP.  III. 

kicking,  biting,  or  striking  with  his  fore  feet,  or  in  some  other  way,  so 
that  he  died  in  a  few  da3rs  after. 

The  defendant  requested  the  presiding  judge  to  instruct  the  jury 
that  to  entitle  the  plaintiff  to  recover  against  the  defendant  he  must 
prove,  in  addition  to  other  necessary  facts,  that  the  defendant's  horse 
was  vicious,  and  that  the  defendant  had  knowledge  of  such  viciousness 
prior  to  the  time  of  the  alleged  injury. 

The  presiding  judge  declined  giving  these  instructions,  and  directed 
the  jury  that  if  they  should  find  that  the  defendant  owned  the  horse 
alleged  to  have  done  the  injury  to  the  plaintiff's  horse,  and  if,  at  the 
time  of  the  injury,  he  had  escaped  into  the  plaintiff's  close,  and  was 
wrongfully  there,  and  while  there  occasioned  the  injury,  and  that  the 
horse  died  in  consequence,  that  the  plaintiff  would  be  entitled  to  re- 
cover the  value  of  the  horse  so  injured.  That  it  was  not  necessary  for 
the  plaintiff  to  prove  that  the  horse  was  vicious,  or  accustomed  to  act-s 
of  violence  towards  other  animals  or  horses,  or  that  the  owner  had 
notice  of  such  viciousness  or  habits. 

The  jury  returned  a  verdict  for  the  plaintiff.^ 

Davis,  J.  There  are  three  classes  of  cases  in  which  the  owners  of 
animals  are  liable  for  injuries  done  by  them  to  the  persons  or  the 
property  of  others.  And  in  suits  of  such  injiuies  the  allegations  and 
proofs  must  be  varied  in  each  case,  as  the  facts  bring  it  within  one  or 
another  of  these  classes. 

1.  The  owner  of  wild  beasts,  or  beasts  that  are  in  their  nature 
vicious,  is,  imder  all  circumstances,  liable  for  injuries  done  by  them. 
It  is  not  necessary,  in  actions  for  injiuies  by  such  beasts,  to  allege  or 
prove  that  the  owner  knew  them  to  be  mischievous,  for  he  is  con- 
clusively presumed  to  have  such  knowledge;  or  that  he  was  guilty  of 
negligence  in  permitting  them  to  be  at  large,  for  he  is  boimd  to  keep 
them  in  at  his  peril. 

"  Though  the  owner  have  no  particular  notice  that  he  did  any  such 
thing  before,  yet  if  he  be  a  beast  that  is  ferae  naturae  if  he  get  loose 
and  do  harm  to  any  person,  the  owner  is  liable  to  an  action  for  the 
damage."     1  Hale,  P.  C.  430. 

"  If  they  are  such  as  are  natmully  mischievous  in  their  kind,  in 
which  the  owner  has  no  valuable  property,  he  shall  answer  for  hurt 
done  by  them,  without  any  notice;  but  if  they  are  of  a  tame  nature, 
there  must  be  notice  of  the  ill  quality."  Holt,  C.  J.  Mason  v.  Keel- 
ing, 12  Mod.  R.  332. 

"  The  owner  of  beasts  that  s^re  ferae  naiurae  must  always  keep  them 
up,  at  his  peril;  and  an  action  lies  without  notice  of  the  quality  of  the 
beasts."    Rex  v.  Huggins,  2  Lord  Raym.  1583. 

2.  If  domestic  animals,  such  as  oxen  and  horses,  injure  any  one,  in 
person  or  property,  if  they  are  rightfully  in  the  place  where  they  do 
the  mischief,  the  owner  of  such  animals  is  not  liable  for  such  injury 

^  The  arguments  are  omitted. 


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SECT,  n.]  DECKER  V.  GAMMON  443 

unless  he  knew  that  they  were  accustomed  to  do  mischief.  And  in 
suits  for  such  injuries,  such  knowledge  must  be  alleged,  and  proved. 
For  unless  the  owner  knew  that  the  beast  was  vicious  he  is  not  liable. 
If  the  owner  had  such  knowledge  he  is  liable. 

"  The  gist  of  the  action  is  the  keeping  of  the  animal  after  knowledge 
of  its  vicious  propensities."    May  v.  Burdett,  58  Eng.  C.  L.  101. 

"  If  the  owner  have  knowledge  of  the  quality  of  his  beast,  and  it 
doth  anybody  hiul;,  he  is  chargeable  in  an  action  for  it."  1  Hale  P.  C. 
430. 

''  An  action  hes  not  unless  the  owner  knows  of  this  quaUty."  Bux- 
endin  v.  Sharp,  2  Salk.  662. 

"  If  the  owner  puts  a  horse  or  an  ox  to  grass  in  his  field,  and  the 
horse  or  ox  breaks  the  hedge  and  runs  into  the  highway,  and  gores  or 
kicks  some  passenger,  an  action  will  not  Ue  against  the  owner  unless 
he  had  notice  that  they  had  done  such  a  thing  before."  Mason  v. 
Keeling,  12  Modem  R.  332. 

"  If  damage  be  done  by  any  domestic  animal,  kept  for  use  or  con- 
venience, the  owner  is  not  liable  to  an  action  on  the  ground  of  negli- 
gence, without  proof  that  he  knew  that  the  animal  was  accustomed  to 
do  mischief."    Vrooman  v.  Sawyer,  13  Johns.  R.  339. 

3.  The  owner  of  domestic  animals,  if  they  are  wrongfully  in  the 
place  where  they  do  any  mischief,  is  liable  for  it,  though  he  had  no 
notice  that  they  had  been  accustomed  to  do  so  before.  In  cases  of 
this  kind  the  ground  of  the  action  is  that  the  animals  were  wrongfully 
in  the  place  where  the  injury  was  done.  And  it  is  not  necessary  to 
allege  or  prove  any  knowledge  on  the  part  of  the  owner  that  they  had 
previously  been  vicious. 

"  If  a  bull  break  into  an  enclosure  of  a  neighbor,  and  there  gore  a 
horse  so  that  he  die,  his  owner  is  liable  in  an  action  of  trespass  guare 
claumm  fregit,  in  which  the  value  of  the  horse  would  be  the  just 
measure  of  damages."    Dolph  v.  Ferris,  7  Watts  &  Serg.  R.  367. 

"  If  the  owner  of  a  l\prse  suffers  it  to  go  at  large  in  the  streets  of  a 
populous  city  he  is  answerable  in  an  action  on  the  case  for  a  personal 
injury  done  by  it  to  an  individual  without  proof  that  he  knew  that  the 
horse  was  vicious.  The  owner  had  no  right  to  turn  the  horse  loose 
in  the  streets."  Goodman  v.  Gay,  3  Harris  R.  188.  In  this  case 
the  writ  contained  the  allegation  of  knowledge  on  the  part  of  the 
defendant;  but  the  comi;  held  that  it  was  not  material  and  need  not 
be  proved. 

The  case  before  us  is  clearly  within  this  class  of  cases  last  described. 
It  is  alleged  in  the  writ  that  "  the  plaintiff  had  a  valuable  horse  which 
was  peaceably  a^id  of  right  depasturing  in  his  own  close,  and  the  de- 
fendant was  possessed  of  another  horse,  vicious  and  imruly,  which  was 
running  at  large  where  of  right  he  ought  not  to  be;  and  being  so  un- 
lawfuUy  at  large,  broke  into  the  plaintiff's  close,  and  injured  the  plain- 
tiff's horse,  &c."    It  is  also  alleged  that  "the  vicious  habits  of  the 


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444  DECKER  V.  GAMMON  [CHAP.  HI. 

horse  were  well  known  to  the  defendant;  "  but  this  allegation  was  not 
necessary,  and  may  well  be  treated  as  surplusage.  If  the  defendant 
had  had  a  right  to  turn  his  horse  upon  the  plaintiff's  close  it  would 
have  been  otherwise.  But  if  the  horse  was  wrongfully  there  the  de- 
fendant was  liable  for  any  injury  done  by  him,  though  he  had  no 
knowledge  that  the  horse  was  vicious.  The  gravamen  of  the  charge 
was  that  the  horse  was  wrongfully  upon  the  plaintiff's  close;  and  this 
was  what  was  put  in  issue  by  the  plea  of  not  guilty. 

Nor  are  these  principles  in  conflict  with  the  decision  in  the  case  of 
Van  Leuven  v.  Lyke,  1  Comstock,  515.  In  that  case  the  action  was 
not  sustained  because  the  declaration  was  not  for  trespass  qiuire 
clausum  with  the  other  injuries  alleged  by  way  of  aggravation.  But 
in  that  case  there  was  no  allegation  that  the  animal  was  wrongfully 
upon  the  plaintiff's  close;  or  that  the  injury  was  committed  upon  the 
plaintiff's  close.  4  Denio  R.  127.  And  in  the  Court  of  Appeals  it 
was  expressly  held  that ''  if  the  plaintiff  had  stated  in  his  declaration 
that  the  swine  broke  and  entered  his  close,  and  there  conmiitted  the 
injury  complained  of,  and  sustained  his  declaration  by  evidence,  he 
would  been  entitled  to  recover  all  the  damages  thus  sustained." 
1  Coms.  515,  518. 

In  the  case  before  us,  though  the  declaration  is  not  technically  for 
trespass  quare  clausum,  it  is  distinctly  alleged  that  the  defendant's 
horse,  "  being  so  imlawfully  at  large,  broke  and  entered  the  plaintiff's 
close,  and  injured  the  plaintiff's  horse,"  which  was  there  peaceably  and 
of  right  depasturing.  This  was  sufficient;  and  the  instruction  given 
to  the  jury,  "  that  if  the  defendant's  horse,  at  the  time  of  the  injury, 
had  escaped  into  the  close,  and  was  wrongfully  there,  and  while  there 
occasioned  the  injury,  then  the  plaintiff  would  be  entitled  to  recover," 
was  correct.  And  this  being  so,  the  instruction  requested  "  that  the 
plaintiff  must  prove,  in  addition  to  other  necessary  facts,  that  the  de- 
fendant's horse  was  vicious,  and  that  the  defendant  had  knowledge  of 
such  viciousness  prior  to  the  time  of  the  injury,"  was  properly  refused. 

Cutting,  J.,  did  not  concur.  Exceptions  overruled} 

^  Angus  V.  Radin,  2  South.  (N.  J.)  815  Accord.  The  same  result  has  often  been 
reached  in  an  action  of  trespass  quare  clausum  in  which  the  injury  by  the  trespass- 
ing animal  is  set  up  in  aggravation.  Lee  v.  Riley,  17  C.  B.  n.  s.  722;  Theyer 
V.  Pumell.  [1918]  2  K.  B.  333;  Van  Leuven  v.  Lyke,  1  N.  Y.  615;  Dolph  v.  Ferris, 
7  Watts  &  Serrt.  367;  Chunot  v.  Larson,  43  Wis.  536. 

But  see  McDonald  v.  Jodrey,  8  Pa.  Co.  Ct.  R.  142  (cat  went  on  plaintifiPs  prem- 
ises and  killed  canary). 


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SECT.  II.]  DOYLE  V.  VANCE  446 

DOYLE  V.  VANCE 

Supreme  Court,  Victoria,  April  16, 1880. 

Reported  in  6  Victorian  Law  Reports,  Cases  ai  Law,  87. 

Stawell,  C.  J.^  a  dog  belonging  to  the  defendant  got  on  land 
belonging  to  the  plaintiff,  how,  does  not  appear,  and  barked  at  a  horse 
of  the  plaintiff  which  was  then  grazing  quietly  in  an  inclosed  field; 
the  horse  ran  away,  tried  to  leap  over  the  fence,  fell  and  broke  its 
neck.  The  plaint  was  in  the  ordinary  form,  alleging  a  scienter  in  the 
defendant.  At  the  trial,  an  application  was  made  to  add  a  count  for 
trespass  by  the  dog  on  the  plaintiff's  land.  The  appUcation  was 
granted,  and  though  the  amendment  was  not  formally  written  on  the 
plaint,  it  may  now  be  considered  as  having  been  made.  A  verdict  was 
given  for  the  plaintiff,  with  £10  damages. 
,  The  defendant  has  appealed,  and  the  question  we  have  to  consider  is 
whether,  as  a  matter  of  law,  he  is  liable  for  the  trespass  conunitted  by 
his  dog.  It  would  have  been  competent  for  the  judge  at  the  trial  to 
have  foimd  that  the  dog  was  on  the  land,  by  the  leave  and  license  of 
the  plaintiff;  all  the  circimistances  point  to  the  probability  of  that 
being  the  case.  But  he  has  found  that  the  dog  wa?  there  as  a  tres- 
passer. There  are  a  number  of  cases  in  which  judges  have  expressed 
obiter  diday  as  to  the  non-liabihty  of  an  owner  for  injuries  done  by 
his  dog,  and  curious  and  singular  reasons  —  that  a  dog  was  the  com- 
panion of  man  (and  the  like)  —  have  been  assigned  for  those  dicta; 
reasons  which  courts  have  treated  as  entitled  to  high  respect,  and 
which  have  not  been  dissented  from.  There  is,  however,  a  compara- 
tively recent  case.  Read  v.  Edwards,  supra,^  in  which  an  action  was 
brou^t  against  the  owner  of  a  dog  for  having  chased  and  destroyed 
game,  the  declaration  alleging  scienter  by  the  defendant.  All  the 
dicta  of  the  learned  judges  to  which  I  have  referred  were  cited  in  the 
argument,  were  conunented  on  and  received  attention.  The  case  was 
decided  on  another  point,  but  Mr.  Justice  Willes,  who  deUvered  the 
judgment  of  the  Court,  said:  — 

"  The  question  was  much  argued  whether  the  owner  of  the  dog  is 
answerable  in  trespass  for  every  unauthorized  entry  of  the  animal  into 
the  land  of  another,  as  in  the  case  of  an  ox,  and  reasons  were  offered, 
which  we  need  not  now  estimate,  for  a  distinction  in  this  respect  be- 
tween oxen,  and  dogs  or  cats,  on  account,  first,  of  the  difficulty  or 
impossibiUty  of  keeping  the  latter  under  restraint;  secondly,  the 
slightness  of  the  damage  which  their  wandering  ordinarily  causes; 
thirdly,  the  conmion  usage  of  mankind  to  allow  them  a  wider  liberty; 
and  lastly,  their  not  being  considered  in  law  so  absolutely  the  chattels 
of  the  owner  as  to  be  the  subject  of  larceny.  It  is  not,  however, 
necessary  in  the  principal  case  to  answer  that  question.^' 

>  Statement  and  arguments  omitted.  >  17  C.  B.  n.  s.  260. 


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446  DOYLE  V.  VANCE  [CHAP.  IH. 

The  legitimate  inference  from  these  observations  is  that  the  ques- 
tion, whether  the  dicta  I  have  referred  jto  are  law,  has  not  yet  been 
decided,  and  that  the  subject  is  open  for  consideration.  There  may  be 
very  cogent  reasons,  socially,  for  exempting  the  owner  from  liability. 
But  there  is  no  reason  which  a  court  of  law  can  recognize.  Serious 
injury  might  be  inflicted  by  a  dog  revelling  in  a  highly-cultivated 
parterre,  and  can  it  with  propriety  be  said  that  the  owner  of  the  gar- 
den can  obtain  no  compensation  ?  It  has  been  decided  that  a  dog  can 
be  distrained  for  damage  feasant:  Bimch  v,  Kennington,  1  Q.  B.  679. 
There  can  be  no  question,  if  an  ox  were  substituted  for  a  dog,  as  hav- 
ing done  the  mischief  complained  of  in  the  present  case,  the  owner 
would  be  liable.  Cox  v,  Burbidge,  supra,^  which  was  cited,  does  not 
apply.  There,  the  defendant's  horse,  being  on  the  highway,  kicked 
the  plaintiff,  a  child  who  was  playing  there.  The  defendant  was  held 
not  guilty  of  actionable  negligence;  but  that  was  on  the  groimd  that 
the  horse  had  a  right  to  be  on  the  highway,  as  well  as  the  child,  and 
was  therefore  not  a  trespasser. 

In  Lee  v.  Riley,  supra^^  through  defect  of  fences  which  it  was  the 
defendant's  duty  to  repair,  the  defendant's  mare  strayed  in  the  night 
time  from  his  close  into  an  adjoining  field,  and  so  into  a  field  of  the 
plaintiff's,  in  which  was  a  horse.  From  some  unexplained  cause  the 
animals  quarrelled,  and  the  result  was  that  the  plaintiff's  horse  re- 
ceived a  kick  from  the  defendant's  mare,  which  broke  its  leg,  and  it 
was  necessarily  killed.  It  was  held  that  the  defendant  was  answerable 
for  the  mare's  trespass,  and  the  damage  was  not  too  remote.  The 
decision  was  based  on  the  fact  that  the  defendant's  mare  trespassed  on 
the  plaintiff's  land,  and  that  it  was  the  duty  of  the  owner  of  an  animal 
to  keep  it  from  trespassing.  In  Ellis  v.  The  Loftus  Iron  Co.,  supra,* 
the  defendant's  horse  having  injured  the  plaintiff's  mare  by  biting 
and  kicking  her  through  the  fence  separating  the  plaintiff's  land  from 
the  defendants',  it  was  held  that  there  was  a  trespass  by  the  act  of  the 
defendants'  horse,  for  which  the  defendants  were  liable,  apart  from 
any  question  of  negligence  on  their  part. 

The  owner  of  an  animal  is  therefore  responsible  for  any  damage 
fairly  resulting  from  a  trespass  by  that  animal.  The  damage  here  has 
resulted  from  the  trespass,  and  the  verdict  will  therefore  stand. 

The  argument  based  upon  "  The  Dog  Act  1864  "  (No.  229),  sec.  15, 
enacting  that  the  owner  of  a  dog  shall  be  liable  for  injury  done  to 
sheep,  without  proof  of  scienter,  should  be  noticed;  it  was  urged  that 
the  necessity  for  passing  such  an  enactment  implied  that  there  was 
previously  no  liability.  But  that  argument  goes  too  far.  One  part  of 
the  enactaient  is  declaratory,  and  the  other  is  new. 

Barry,  J.  I  am  of  the  same  opinion.  It  is  remarkable  that  this 
question  should  not  have  been  settled  until  now,  and,  apparently  from 
a  desire  to  avoid  overruling  old  cases  which  had  been  decided  on  the 

>  13  C.  B.  N.  s.  430.         «  18  C.  B.  n.  s.  732.         «  L.  R.  10  C.  P.  10. 


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SECT.  II.]  DOYLE  V,  VANCE  447 

most  subtle  reasons,  the  judges  have  abstained  from  considering  the 
question  in  a  broad  aspect.  The  old  reports  abound  with  expressions 
of  peculiar  regard  for  dogs  and  cats;  and  Lord  Tenterden  does  not 
think  it  beneath  his  dignity  to  quote,  in  his  book  on  shipping,  '^  if 
mice  eat  the  cargo,  and  thereby  occasion  no  sm^ll  injury  to  the  mer- 
chant, the  master  must  make  good  the  loss,  because  he  is  guilty  of  a 
fault;  yet  if  he  had  cats  on  board  his  ship,  he  shall  be  excused.''  One 
reason  given  for  the  exemption  of  habiUty,  so  far  as  the  dog  is  con- 
cerned, is  on  account  of  his  familiarity  with  man.  But  we  cannot 
regard  these  every  day  questions  in  the  same  subtle  way  as  they  were 
regarded  three  hundred  years  ago.  The  doctrine  of  trespass  is  con- 
sidered on  much  more  reasonable  grounds  in  these  days.  Where  sheep, 
oxen,  or  horses,  commit  a  trespass,  it  has  always  been  held  that  the 
owner  is  liable;  and  that  liability  has  been  extended  to  poultry,  and 
poultry  are  as  much  domesticated  as  a  dog  or  a  cat.  In  Brown  v. 
Giles,  1  C.  A  P.  118,  Mr.  Justice  Park  is  reported  to  have  said  that 
he  was  decidedly  of  opinion  that  a  dog  jumping  into  a  field  without  the 
consent  of  its  master,  not  only  was  not  a  trespass,  but  was  no  trespass 
at  all  on  which  an  action  coiUd  be  maintained.  But  that  remark  was 
merely  obiter;  the  case  was  decided  for  the  plaintiff  on  another  point. 
The  learned  judge  has  foimd  that  there  was  a  trespass.  The  dog  was 
left  to  roam  at  its  discretion,  imcontrolled  by  its  master. 

Stephen,  J.  I  also  concur.  It  seems  to  have  been  considered,  in 
old  times,  that  there  was  a  marked  distinction  between  trespass  by  a 
dog,  and  trespass  by  an  ox.  Now,  as  a  general  rule,  no  such  distinc- 
tion is  made.  I  cannot  see  why  there  should  be  any.  This  case  illus- 
trates how  far  the  law  ought  to  be  altered,  so  as  to  preserve  its  accord- 
ance with  change  of  time  and  place.  Of  course,  the  Court  cannot 
alter  the  clearly-expressed  language  of  an  act  of  Parliament,  though 
the  reason  for  it  may  have  ceased.  And  so  also  as  to  actual  decisions 
of  the  Courts.  If  there  is  reason  to  alter  the  law,  the  legislature  must 
do  it.  But  on  this  question,  there  have  been  no  more  than  obiter 
dicta  based  upon  reasons  which  have  no  longer  any  existence.  At  one 
time  a  dog  could  not  be  the  subject  of  a  theft.  The  Court  is  at  Uberty, 
within  reasonable  limits,  to  meet  the  changed  circumstances  of  the  pres- 
ent day.  I  can  see  no  sound  reason  why  there  should  be  a  difference 
between  the  case  of  trespass  by  a  dog,  and  one  by  an  ox. 

Appeal  dismissed.^ 

*  McClain  v.  Lewiston  Driving  Ass'n,  17  Idaho,  63;  Green  v.  Doyle,  21  HI.  App. 
205;  Chunot  v.  Larson,  43  Wis.  536  Accord, 

Buck  V.  Moore,  35  Hun,  338  (defendant's  trespassing  dog  killed  plaintiff's  dog); 
Van  Etten  v,  Noyes,  128  App.  Div.  406  Contra. 


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448  TROTH  V.  WILLS  [CHAP.  IH. 

TROTH  V.  WILLS 
Superior  Court,  Pennsylvania,  July  29, 1898. 

Reported  in  8  Pennsylvania  Superior  Court  Reports,  1. 

Trespass  for  personal  injuries.    Before  Br^gy,  J. 

It  appears  from  the  evidence  that  the  plaintiff,  a  lady  about  fifty- 
five  years  of  age,  was  temporarily  living  with  her  son,  in  a  small 
country  place,  and  the  cow  of  the  defendant  strayed  into  the  garden 
belonging  to  the  son.  The  plaintiff,  seeing  the  cow  in  the  garden, 
came  out  of  her  son's  house  and  attempted  to  drive  the  cow  out  of  the 
garden  back  into  the  pasture  field,  from  where  she  entered  into  the 
garden.  The  plaintiff  alleges  that  while  so  driving  the  cow  out  of 
the  garden  back  into  the  field,  the  cow  deliberately  went  towards  the 
field,  and  that  she  followed  closely  behind  the  cow,  when  the  cow  sud- 
denly turned  her  head  and  butted  the  plaintiff  in  the  abdomen,  and 
hence  her  injuries.* 

Defendant  requested  (Request  No.  5)  a  ruling,  that,  under  all  the 
evidence,  the  verdict  should  be  for  the  defendant.  The  court  de- 
clined so  to  rule.  Verdict  and  judgment  for  plaintiff.  Defendant 
appealed. 

Smith,  J.  It  is  not  necessary,  in  disposing  of  this  case,  to  deter- 
mine the  liability  of  the  owner  of  a  domestic  animal  for  all  its  acts 
while  trespassing  upon  another's  land.  In  such  cases,  the  primary 
trespass  is  the  entry  of  the  animal  upon  the  land;  the  attendant  dam- 
age for  which  the  owner  may  be  held  liable  is  matter  of  aggravation. 
The  minimum  liabiUty  of  the  owner  is  for  acts  arising  from  the  natu- 
ral propensities  of  the  species,  and  from  special  characteristics  and 
acquired  habits  of  the  individual  of  which  the  owner  has  notice. 
When  the  primary  trespass  is  the  wilful  act  of  the  owner,  he  may  be 
held  to  a  larger  measure  of  responsibility;  thus  if  he  take  a  dog  into 
a  field  where  he  is  himself  a  trespasser,  and  the  dog  there  kills  or  in- 
jures sheep,  this,  though  its  first  offence,  may  be  laid  as  an  aggrava- 
tion of  the  trespass:  Beckwith  v.  Shordike,  Burr.  2092;  Michael  v. 
Alestree,  2  Lev.  172,  cited  in  Dolph  v.  Ferris,  7  W.  &  S.  367.  Beyond 
this,  the  authorities  appear  unsettled,  and  principle  and  analogy  form 
the  only  guide.  Doubtless  there  may  be  mischief  so  far  independent 
of  the  primary  trespass,  and  unrelated  to  the  propensity  or  habit  lead- 
ing to  this,  that  it  cannot  be  deemed  matter  of  aggravation.  In  my 
view,  however,  the  mischievous  act,  when  incident  to  the  primary 
trespass,  in  any  of  its  aspects,  or  so  closely  associated  with  it  as  to 
form  a  substantive  part  or  an  immediate  result  of  it,  is  a  legitimate 
matter  of  aggravation,  for  which  the  owner  should  be  held  liable.  In 
such  case,  the  propensity  or  habit  leading  to  the  primary  trespass  may 
be  regarded  as  the  proximate  cause  of  the  resulting  injury.    If,  for 

^  Statement  copdensed.    Arguments  and  portions  of  opinions  omitted. 


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SECT,  n.]  TROTH  V.  WILLS  449 

example,  trespassing  cattle,  in  order  to  reach  the  v^etation  in  a  hot- 
bed, break  its  glass  covering,  the  owner  must  be  held  liable  for  this 
injury,  though  cattle  are  not  by  natiu^  prone  to  break  glass.  Such 
breaking  is  incident  to  the  primary  trespass,  and  grows  out  of  the 
propensity  leading  to  this.  If  an  animal  injure  a  person  lawfully  try- 
ing to  prevent  it  from  trespassing,  the  owner  should  be  held  liable, 
though  the  injury  be  one  which  the  animal  is  not  prone  to  commit. 
In  such  case  the  mischievous  act  is  closely  associated  with  the  primary 
trespass,  and  in  fact  grows  directly  out  of  it.  The  same  principle 
must  govern  if  a  person  be  injured  in  trying  to  prevent  the  continu- 
ance of  a  trespass,  or  of  acts  forming  an  aggravation  of  it. 

In  this  view  of  the  principles  which  should  govern  the  determina- 
tion of  this  case,  the  injury  to  the  plaintiff  must  be  deemed  an  aggra- 
vation of  the  trespass  committed  by  the  animal  in  entering  the  garden. 
This  injury,  indeed,  is  not  such  as  a  cow  is  ordinarily  prone  to  com- 
mit; and  there  is  no  evidence  that  the  defendant's  cow  had  contracted 
the  habit  of  making  such  assaults.  But  the  act  of  the  animal  was  one 
to  which  a  creature  of  that  kind  is  naturally  disposed  on  being  dis- 
turbed while  feeding;  and  it  was  so  directly  associated  with  the 
primary  trespass  that,  unless  the  plaintiff's  right  to  prevent  a  continu- 
ance of  this  be  denied,  there  can  be  no  ground  for  questioning  the 
liability  of  the  owner.  This  right  cannot  be  controverted,  for  under 
the  circumstances  the  act  of  the  plaintiff  is  to  be  regarded  as  that  of 
the  tenant  of  the  premises.  The  act  of  the  animal  by  which  the 
plaintiff  was  injured,  so  far  from  being  independent  of  the  primary 
trespass,  or  unrelated  to  it,  grew  directly  out  of  the  propensity  in 
which  this  originated,  coupled  with  the  plaintiff's  attempt  to  prevent 
its  continuance.  The  defendant's  fifth  point  was  therefore  properly 
refused.  The  case  was  submitted  to  the  jury  with  suitable  instruc- 
tions, and  their  finding  on  the  questions  involved  was  concurred  in  by 
the  trial  court.  The  judgment  is  affirmed, 

WiCKHAM,  J.  (dissenting.)  .  .  .  We  are  called  on  to  determine 
whether  the  rule,  so  far  as  our  authority  goes,  shall  be  established  in 
Pennsylvania,  that  the  owner  of  a  useful,  gentle,  and  domestic  animal, 
belonging  to  a  class  recognized  from  the  earliest  times  as  harmless  to 
man,  watched,  driven  to  and  from  the  pasture  fields,  fed  and  milked 
by  women  and  children  the  world  over,  shall  be  responsible  for  the 
conduct  of  the  animal,  foreign  to  its  well-known  nature  and  habits,  if 
it  happen  that  through  any  negligence  of  such  owner,  or  his  servant, 
it  is  permitted  to  trespass  on  the  land  of  another,  and  there  injures  a 
thurd  party. 

The  authorities  on  this  subject  are  numerous  and  impossible  to 
reconcile.  Some  of  them  rest  on  statutes  or  ordinances,  not  alwajrs 
adverted  to  in  the  text-books  or  digests,  in  which  they  are  hastily 
cited.    Others  are  based  on  the  theory,  that  the  right  to  recover  exists 


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450  TROTH  V.  WILLS  [CHAP.  III. 

because  of  the  trespass  to  realty,  and  that  any  unusual  and  not  to  be 
expected  injury  caused  by  the  animal  to  the  person  of  the  owner  of 
the  land,  or  his  other  property,  must  be  alleged  and  proved  by  way  of 
aggravation  of  damages.  Another  class  of  cases  holds  that  all  injiuies 
committed  by  an  animal,  in  a  place  where  it  has  no  right  to  be,  must 
be  compensated  for  by  the  owner.  It  is  on  the  latter  theory  of  the 
law  that  the  plaintiff  must  recover,  if  she  can  sustain  her  action,  as 
we  do  not  deem  it  worth  while  to  notice  the  few  erratic  and  sporadic 
eases,  seemingly  decided  on  no  discoverable  reason,  except  an  assumed 
natural  equity,  that  any  one  injured  by  anything,  animate  or  inani- 
mate, belonging  to  anotiier,  should  be  compensated  by  the  owner. 

As  has  already  been  observed,  the  plaintiff  was  not  the  owner  of 
the  land  trespassed  upon,  and  it  may  be  remarked  that  she  is  aided 
by  no  statute. 

It  is  argued  that  the  appellant's  cow  was  vicious.  There  is  no  evi- 
dence even  suggesting  such  a  tendency,  and  the  learned  trial  judge  so 
instructed  the  jury.  Conceding  that  the  animal  was  breachy,  as 
alleged  by  the  plaintiff,  this  indicated  no  ferocity  or  proneness  to  at- 
tack people.  Any  one,  acquainted  with  the  nature  and  habits  of 
horses  and  cows,  knows  that  usually  the  most  intelligent  and  gentle 
animals  of  these  species  are  the  most  cunning  and  successful  in  find- 
ing their  way  into  forbidden  inclosures  and  the  readiest  to  run  away 
when  discovered.  As  was  said  in  Keshan  v.  Gates,  2  Thomp.  &  C. 
(N.  Y.  Sup.  Ct.)  288:  "  The  vicious  habits  or  propensities  which  the 
owner  of  an  animal  must,  when  known  to  him,  guard  against,  are  such 
as  are  directly  dangerous,  such  as  kicking  and  biting  in  horses,  and 
hooking  in  homed  animals,  and  biting  in  dogs.  These  habits  or 
propensities  may  be  indulged  in  at  any  moment  and  are  inevitably 
dangerous." 

The  adoption  of  the  rule,  sanctioned  by  the  decisions  of  many  re- 
spectable tribunals  in  other  states,  that  the  owner  of  every  trespassing 
domestic  animal  is  liable  merely  because  it  is  a  trespasser  for  all  in- 
jiuies it  may  commit,  however  contrary  to  its  usual  nature  and  dispo- 
sition, and  regardless  of  his  knowledge  of  its  special  viciousness, 
might  often  lead  to  strange  and  imthought-of  consequences.  For  in- 
stance, suppose  that  a  pet  lamb,  alwa3rs  regarded  as  a  harmless  play- 
mate of  children,  is  permitted  to  wander  from  its  owner's  premises 
into  those  of  a  neighbor  (this  as  well  as  the  next  illustration  is  not  a 
supposititious  case),  and  there,  in  play  or  anger,  butts  a  child  from  a 
high  veranda,  or  a  trespassing  hatching  hen,  discovered  on  its  nest  by 
the  little  son  of  the  owner  of  the  premises,  pecks  out  the  eye  of  the 
boy  as  he  is  lawfully  trying  to  drive  it  away,  the  unfortunate  owner 
would  be  liable  in  each  instance  for  all  the  resulting  damages.  In 
vain  would  he  urge  that  the  animal  causing  the  injury  belonged  to  a 


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SECT.  II.]  TROTH  V.  WILLS  451 

class  ordinarily  docile  in  its  nature  and  harmless  to  man;  that  he  had 
no  reason  to  anticipate  that  it  would  do  such  unusual  mischief;  and 
that  he  was  only  responsible  for  the  things  hens,  lambs,  and  milch 
cows  usually  do  and  may  be  expected  to  do  when  trespassing,  that  is, 
for  the  natural  and  probable  consequences  of  their  trespasses.  The 
answer,  under  the  rule  we  are  considering,  would  be:  "  You  were 
guilty  of  negligence  in  permitting  your  animal  to  trespass,  and  there- 
fore you  are  liable  for  all  its  freaks,  for  the  consequences  of  the  wrong, 
near  and  remote,  probable  and  improbable,  for  the  things  you  had 
reason  to  anticipate,  and  those  which  no  one  would  be  Ukely  to  think 
could  happen,  save  as  a  remote  possibility."  The  results  which  might 
foUow  the  application  of  such  a  rule  d^and  its  rejection,  where  it 
has  not  already  been  fully  adopted. 

The  only  negligence  of  the  defendant  revealed  by  the  evidence  was 
his  failure  to  keep  his  cow  out  of  the  garden  of  the  plaintiff's  son. 
To  the  latter,  the  defendant  would  certainly  be  liable  for  the  harm 
done  to  the  realty,  but  as  he  had  no  notice  or  knowledge  of  any  vicious 
or  ferocious  propensity  on  the  part  of  the  animal,  we  do  not  think 
that  he  should  be  mulcted  in  damages  for  the  unfortunate  injury  suf- 
fered by  the  plaintiff,  nor,  for  that  matter,  even  to  the  owner  of  the 
land,  had  such  owner  been  injured  in  like  manner.  The  appellant's 
fifth  point,  asking  the  court  to  direct  a  verdict  in  his  favor,  should 
have  been  aflGrmed. 

PoBTEB,  J.,  concurred  in  the  dissenting  opinion  of  Wickham,  J.^ 

1  But  compare  Bischoff  v.  Cheney,  80  Conn.  1  (trespassing  cat). 

In  Pollock  on  Torts,  6th  ed.,  470,  it  is  said  that  the  owner  of  cattle  and  other 
live  stock  straying  on  the  land  of  others  is  ^*  liable  only  for  natural  and  probable 
consequences,  not  for  an  unexpected  event,  such  as  a  horse  not  previously  known 
to  be  vicious  kicking  a  human  being/'  In  1  Beven  on  Negligence,  2d  ed.,  637,  it 
is  said,  that  if  AnimaJa  are  trespassing  and  do  injury  not  m  accordance  with  the 
ordinary  instinct  of  the  animals,  "  the  owner  is  not  liable  for  the  injury  apart  from 
the  trespass  (though  he  may  be  for  the  trespass),  unless  he  knows  of  the  particiilar 
vice  which  caused  the  injury." 

See  FisK,  J.,  in  Peterson  v.  Conlan,  18  N.  D.  205,  212. 


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452  KYLANDS  V.  FLETCHER  [CHAP.  III. 

Section  III 
Dangerous  Use  op  Land 

FLETCHER  v.  RYLANDS 
In  the  Exchequer,  May  5,  1865. 
Reported  in  3  Hurlstone  &  CoUmarif  774. 

FLETCHER  v.  RYLANDS 

In  the  Exchequer  Chamber,  May  14,  1866. 

Reported  in  Law  Reports,  1  Exchequer ,  265. 

RYLANDS  V.  FLETCHER 

In  the  House  op  Lords,  July  17, 1868. 
Reported  in  Law  Reports,  3  House  of  Lords,  330. 

In  November,  1861,  Fletcher  brought  an  action  agamst  Rylands 
and  Horrocks  to  recover  damages  for  an  injury  caused  to  his  mines  by 
water  flowing  into  them  from  a  reservoir  which  defendants  had  con- 
structed. The  declaration  (set  out  in  L.  R.  1  Exch.  265,  266)  con- 
tained three  counts,  each  count  alleging  negligence  on  the  part  of  the 
defendants.  The  case  came  on  for  trial  at  the  Liverpool  Summer 
Assizes,  1862,  when  a  verdict  was  entered  for  the  plaintiff,  subject  to 
an  award  to  be  thereafter  made  by  an  arbitrator.  Subsequently  the 
arbitrator  was  directed,  instead  of  making  an  award,  to  state  a  special 
case  for  the  consideration  of  the  Court  of  Exchequer.' 

The  material  facts  in  the  special  case  stated  by  the  arbitrator  were 
as  follows:  — 

Fletcher,  under  a  lease  from  Lord  Wilton,  and  imder  arrangements 
with  other  landowners,  was  working  coal  mines  under  certain  lands. 
He  had  worked  the  mines  up  to  a  spot  where  he  came  upon  old  hori- 
zontal passages  of  disused  mines,  and  also  upon  vertical  shafts  which 
seemed  filled  with  marl  and  rubbish. 

Rylands  and  Horrocks  owned  a  mill  standing  on  land  near  that 
imder  which  Fletcher's  mines  were  worked^  With  permission  of  Lord 
Wilton,  they  constructed  on  Lord  Wilton's  land  a  reservoir  to  supply 
water  to  their  mill.  They  employed  a  competent  engineer  and  com- 
petent contractors  to  construct  the  reservoir.  It  was  not  known  to 
Rylands  and  Horrocks,  nor  to  any  of  the  persons  employed  by  them, 
that  any  coal  had  ever  been  worked  under  or  near  the  site  of  the 

^  Statement  abridged.  Arguments  in  all  the  courts  omitted;  abo  opinions  in 
Ck>urt  of  Exchequer. 


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SECT.  III.]  RYLANDS  V.  FLETCHER  453 

reservoir;  but  in  point  of  fact  the  coal  under  the  site  of  the  reservoir 
had  been  partially  worked  at  some  time  or  other  beyond  living 
memory,  and  there  were  old  coal  workings  under  the  site  of  the  reser- 
voir commimicating  by  means  of  other  and  intervening  old  under- 
ground workings  with  the  recent  workings  of  Fletcher. 

In  the  course  of  constructing  and  excavating  for  the  bed  of  the  said 
reservoir,  five  old  shafts,  running  vertically  downwards,  were  met  with 
in  the  portion  of  land  selected  for  the  site  of  the  said  reservoir.  At 
the  time  they  were  so  met  with  the  sides  or  walls  of  at  least  three  of 
them  were  constructed  of  timber,  and  were  still  in  existence,  but  the 
shafts  themselves  were  filled  up  with  marl,  or  soil  of  the  same  kind  as 
the  marl  or  soil  which  inmiediately  siurounded  them,  and  it  was  not 
known  to,  or  suspected  by,  the  defendants,  or  any  of  the  persons  em- 
ployed by  them  in  or  about  the  planning  or  constructing  of  the  said 
reservoir,  that  they  were  (as  they  afterwards  proved  to  be)  shafts 
which  had  been  made  for  the  pmpose  of  getting  the  coal  under  the 
land  in  which  the  said  reservoir  was  made,  or  that  they  led  down  to 
coal  workings  under  the  site  of  the  said  reservoir. 

For  the  selection  of  the  site  of  the  said  reservoir,  and  for  the  plan- 
ning and  constructing  thereof,  it  was  necessary  that  the  defendants 
should  employ  an  engineer  and  contractors,  and  they  did  employ  for 
those  purposes  a  competent  engineer  and  competent  contractors,  by 
and  imder  whom  the  said  site  was  selected  and  the  said  reservoir  was 
planned  and  constructed,  and  on  the  part  of  the  defendants  themselves 
there  was  no  personal  negligence  or  default  whatever  in  or  about  or 
in  relation  to  the  selection  of  the  said  site,  or  in  or  about  the  planning 
or  construction  of  the  said  reservoir;  but  in  point  of  fact  reasonable 
and  proper  care  and  skill  were  not  exercised  by  or  on  the  part  of  the 
persons  so  employed  by  them,  with  reference  to  the  shafts  so  met  with 
as  aforesaid,  to  provide  for  the  suflBciency  of  the  said  reservoir  to  bear 
the  pressure  of  water  which,  when  filled  to  the  height  proposed,  it 
would  have  to  bear.  «*^ 

The  said  reservoir  was  completed  about  the  beginning  of  Decanber, 
1860,  when  the  defendants  caused  the  same  to  be  partially  filled  with 
water,  and  on  the  morning  of  the  11th  December  in  the  same  year, 
whilst  the  reservoir  was  so  partially  filled,  one  of  the  shafts  which  had 
been  so  met  with  as  aforesaid  gave  way  and  burst  downwards;  in  con- 
sequence of  which  the  water  of  the  reservoir  flowed  into  the  old  work- 
ings underneath,  and  by  means  of  the  underground  communications 
so  then  existing  between  those  old  coal  workings  and  the  plaintiff's 
coal  workings  in  the  plaintiff's  colliery,  as  above  described,  large  quan- 
tities of  the  water  so  flowing  from  the  said  reservoir  as  aforesaid  found 
their  way  into  the  said  coal  workings  in  the  plaintiff's  coUiery,  and 
by  reason  thereof  the  said  colliery  became  and  was  flooded,  and  the 
working  thereof  was  obliged  to  be  and  was  for  a  time  necessarily 
suspended. 


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454  RYLANDS  V.  FLETCHER  [CHAP.  III. 

The  question  for  the  opinion  of  the  Court  was  whether  the  plaintiff 
was  entitled  to  recover  damages  from  the  defendants  by  reason  of  the 
matters  thus  stated  by  the  arbitrator. 

The  Court  of  Exchequer  (Pollock,  C.  B.,  and  Martin,  B.,  concur- 
ring; Bramwell,  B.,  dissenting)  gave  judgment  for  defendants. 

Plaintiff  brought  error  in  the  Exchequer  Chamber. 

May  14, 1866.  The  judgment  of  the  Court  (Willes,  Blackburn, 
Keating,  Mellor,  Montague  Smith,  and  Lush,  JJ.)  was  deliv- 
ered by 

Blackburn,  J.  This  was  a  special  case  stated  by  an  arbitrator, 
imder  an  order  of  nisi  jniua,  in  which  the  question  for  the  Court  is 
stated  to  be,  whether  the  plaintiff  is  entitled  to  recover  any  and,  if 
any,  what  damages  from  the  defendants  by  reason  of  the  matters 
thereinbefore  stated. 

In  the  Court  of  Exchequer,  the  Chief  Baron  and  Martin,  B.,  were 
of  opinion  that  the  plaintiff  was  not  entitled  to  recover  at  all,  Bram- 
well, B.,  being  of  a  different  opinion.  The  judgment  in  the  Exchequer 
was  consequently  given  for  the  defendants,  in  conformity  with  the 
opinion  of  the  majority  of  the  Court.  The  only  question  argued  be- 
fore us  was  whether  this  judgment  was  right,  nothing  being  said  about 
the  measure  of  damages  in  case  the  plaintiff  should  be  held  entitled 
to  recover.  We  have  come  to  the  conclusion  that  the  opinion  of  Bram- 
well, B.,  was  right,  and  that  the  answer  to  the  question  should  be  that 
the  plaintiff  was  entitled  to  recover  damages  from  the  defendants  by 
reason  of  the  matters  stated  in  the  case,  and  consequently  that  the 
judgment  below  should  be  reversed,  but  we  cannot  at  present  say  to 
what  damages  the  plaintiff  is  entitled. 

It  appears  from  the  statement  in  the  case  that  the  plaintiff  was 
damaged  by  his  property  being  flooded  by  water  which,  without 
any  fault  on  his  part,  broke  out  of  a  reservoir  constructed  on  the 
defendants'  land  by  tiie  defendants'  orders,  and  maintained  by  the 
defendants. 

It  appears  from  the  statement  in  the  case  [see  pp.  267-268],  that 
the  coal  under  the  defendants'  land  had,  at  some  remote  period,  been 
worked  out;  but  this  was  unknown  at  the  time  when  the  defendants 
gave  directions  to  erect  the  reservoir,  and  the  water  in  the  reservoir 
would  not  have  escaped  from  the  defendants'  land,  and  no  mischief 
would  have  been  done  to  the  plaintiff,  but  for  this  latent  defect  in  the 
defendants'  subsoil.  And  it  further  appears  [see  pp.  268-269]  that 
the  defendants  selected  competent  engineers  and  contractors  to  make 
their  reservoir,  and  themselves  personally  continued  in  total  ignorance 
of  what  we  have  called  the  latent  defect  in  tjie  subsoil;  but  that  these 
persons  employed  by  them  in  the  course  of  the  work  became  aware 
of  the  existence  of  the  ancient  shafts  filled  up  with  soil,  though  they 


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SECT.  III.]  RYLANDS  V.  FLETCHER  455 

did  not  know  or  suspect  that  they  were  shafts  communicating  with  old 
workings. 

It  is  found  that  the  defendants,  personally,  were  free  from  all  blame, 
but  that  in  fact  proper  care  and  skill  was  not  used  by  the  persons  em- 
ployed by  them  to  provide  for  the  sufficiency  of  the  reservoir  with 
reference  to  these  shafts.  The  consequence  was  that  the  reservoir 
when  filled  with  water  burst  into  the  shafts,  the  water  flowed  down 
through  them  into  the  old  workings,  and  thence  into  the  plaintiff's 
mine,  and  there  did  the  mischief. 

The  plaintiff,  though  free  from  all  blame  on  his  part,  must  bear  the 
loss,  unless  he  can  establish  that  it  was  the  consequence  of  some  de- 
fault for  which  the  defendants  are  responsible.  The  question  of  law 
therefore  arises,  what  is  the  obligation  which  the  law  casts  on  a  person 
who,  like  the  defendants,  lawfully  brings  on  his  land  something  which, 
though  harmless  whilst  it  remains  there,  wiU  naturaUy  do  mischief  if 
it  escape  out  of  his  land.  It  is  agreed  on  all  hands  that  he  must  take 
care  to  keep  in  that  which  he  has  brought  on  the  land  and  keeps  there, 
in  order  that  it  may  not  escape  and  damage  his  neighbors;  but  the 
question  arises  whether  the  duty  which  the  law  casts  upon  him,  imder 
such  circimistances,  is  an  absolute  duty  to  keep  it  in  at  his  peril,  or 
is,  as  the  majority  of  the  Court  of  Exchequer  have  thought,  merely  a 
duty  to  take  all  reasonable  ai^d  prudent  precautions  in  order  to  keep  it 
in,  but  no  more.  If  the  first  be  the  law,  the  person  who  has  brought 
on  his  land  and  kept  there  something  dangerous,  and  failed  to  keep 
it  in,  is  responsible  for  all  the  natural  consequences  of  its  escape.  If 
the  second  be  the  limit  of  his  duty,  he  would  not  be  answerable  except 
on  proof  of  negligence,  and  consequently  would  not  be  answerable  for 
escape  arising  from  any  latent  defect  which  ordinary  prudence  and 
skill  could  not  detect. 

Supposing  the  second  to  be  the  correct  view  of  the  law,  a  further 
question  arises  subsidiary  to  the  first,  viz.,  whether  the  defendants  are 
not  so  far  identified  with  the  contractors  whom  they  employed  as  to  be 
responsible  for  l^e  consequences  of  their  want  of  care  and  skill  in 
maldng  the  reservoir  in  fact  insufficient  with  reference  to  the  old 
shafts,  of  the  existence  of  which  they  were  aware,  though  they  had 
not  ascertained  where  the  shafts  went  to. 

We  think  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  in  at  his  peril,  and  if 
he  does  not  do  so,  is  prima  facie  answerable  for  all  the  damage  which 
is  the  natural  consequence  of  its  escape.  He  can  excuse  himself  by 
showing  that  the  escape  was  owing  to  the  plaintiff's  default;  or  per- 
haps that  the  escape  was  the  consequence  of  vis  major,  or  the  act  of 
God;  but  as  nothing  of  this  sort  exists  here,  it  is  unnecessary  to  in- 
quire what  excuse  would  be  sufficient.  The  general  rule,  as  above 
stated,  seems  on  principle  just.    The  person  whose  grass  or  com  is 


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456  RYLANDB  V.  FLETCHER  [CHAP.  HI. 

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  vapors  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  natu- 
ral and  anticipated  consequences.  And  upon  authority,  this  we  think 
is  established  to  be  the  law,  whether  the  things  so  brought  be  beasts, 
or  water,  or  filth,  or  stenches. 

The  case  that  has  most  commonly  occurred  and  which  is  most  fre- 
quently to  be  found  in  the  books  is  as  to  the  obligation  of  the  owner  of 
cattle  which  he  has  brought  on  his  land  to  prevent  their  escaping  and 
doing  mischief.  The  law  as  to  them  seems  to  be  perfectly  settled  from 
early  times;  the  owner  must  keep  them  in  at  his  peril,  or  he  will  be 
answerable  for  the  natural  consequences  of  their  escape;  that  is,  with 
regard  to  tame  beasts,  for  the  grass  they  eat  and  trample  upon,  though 
not  for  any  injury  to  the  person  of  others,  for  our  ancestors  have 
settled  that  it  is  not  the  general  nature  of  horses  to  kick,  or  bulls  to 
gore;  but  if  the  owner  knows  that  the  beast  has  a  vicious  propensity 
to  attack  man,  he  will  be  answerable  for  that  too. 

As  early  as  the  Year  Book,  20  Ed.  4,  11,  placitum  10,  Brian,  C.  J., 
lays  down  the  doctrine  in  terms  very  much  resembling  those  used  by 
Lord  Holt  in  Tenant  v.  Goldwin,  2  Ld.  Raym.  1089,  1  Salk.  360, 
which  will  be  referred  to  afterwards.  It  was  trespass  with  cattle. 
Plea,  that  the  defendant's  land  adjoined  a  place  where  defendant  had 
common,  that  the  cattle  strayed  from  the  common,  and  defendant 
drove  them  back  as  soon  as  he  could.  It  was  held  a  bad  plea.  Brian, 
C.  J.,  says :  "  It  behoves  him  to  use  his  common  so  that  he  shall  do  no 
hurt  to  another  man,  and  if  the  land  in  which  he  has  common  be  not 
enclosed,  it  behoves  him  to  keep  the  beasts  in  the  common  and  out  of 
the  land  of  any  other."  He  adds,  when  it  was  proposed  to  amend  by 
pleading  that  they  were  driven  out  of  the  common  by  dogs,  that  al- 
though that  might  give  a  right  of  action  against  the  master  of  the 
dogs,  it  was  no  defence  to  the  action  of  trespass  by  the  person  on  whose 
land  the  cattle  went.  In  the  recent  case  of  Cox  v.  Burbidge,  13  C.  B. 
N.  s.  438,  32  L.  J.  C.  P.  89,  Williams,  J.,  says:  "  I  apprehend  the  gen- 
eral rule  of  law  to  be  perfectly  plain.  If  I  am  the  owner  of  an  animal 
in  which  by  law  the  right  of  property  can  exist,  I  am  bound  to  take 
care  that  it  does  not  stray  into  the  land  of  my  neighbor,  and  I  am 


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SECT.  III.]  RYLANDS  V.  FLETCHER  457 

liable  for  any  trespass  it  may  commit,  and  for  the  ordinary  conse- 
quences of  that  trespass.  Whether  or  not  the  escape  of  the  animal  is 
due  to  my  negligence  is  altogether  immaterial."  So  in  May  v.  Bur- 
dett,  9  Q.  B.  112,  the  Court,  after  an  elaborate  examination  of  the  old 
precedents  and  authorities,  came  to  the  conclusion  that  "  a  person 
keeping  a  mischievous  animal,  with  knowledge  of  its  propensities,  is 
bound  to  keep  it  secure  at  his  peril."  And  in  1  Hale's  Pleas  of  the 
Crown,  430,  Lord  Hale  states  that  where  one  keeps  a  beast,  knowing 
its  nature  or  habits  are  such  that  the  natural  consequence  of  his  being 
loose  is  that  he  will  harm  men,  the  owner  "  must  at  his  peril  keep  him 
up  safe  from  doing  hurt;  for  though  he  use  his  diligence  to  keep  him 
up,  if  he  escape  and  do  harm,  the  owner  is  liable  to  answer  damages;  " 
though,  as  he  proceeds  to  show,  he  will  not  be  liable  criminally  with- 
out proof  of  want  of  care.  In  these  latter  authorities  the  point  imder 
consideration  was  damage  to  the  person,  and  what  was  decided  was, 
that  where  it  was  known  that  hurt  to  the  person  was  the  natural  con- 
sequence of  the  animal  being  loose,  the  owner  should  be  responsible  in 
damages  for  such  hurt,  though  where  it  was  not  known  to  be  so,  the 
owner  was  not  responsible  for  such  damages ;  but  where  the  damage  is, 
like  eating  grass  or  other  ordinary  ingredients  in  damage  feasant,  the 
natural  consequence  of  the  escape,  the  rule  as  to  keeping  in  the  animal 
is  the  same.  In  Com.  Dig.  DroU,  (M.  2),  it  is  said  that  "  if  the  owner 
of  200  acres  in  a  common  moor  enfeoffs  B.  of  50  acres,  B.  ought  to 
enclose  at  his  peril,  to  prevent  damage  by  his  cattle  to  the  other  150 
acres.  For  if  his  cattle  escape  thither  they  may  be  distrained  damage 
feasant.  So  the  owner  of  the  150  acres  ought  to  prevent  his  cattle 
from  doing  damage  to  the  50  acres  at  his  peril."  The  authority  cited 
is  Dyer,  372  6.,  where  the  decision  was  that  the  cattle  might  be  dis- 
trained; the  inference  from  that  decision,  that  the  owner  was  bound 
to  keep  in  his  cattle  at  his  peril,  is,  we  think,  legitimate,  and  we  have 
the  high  authority  of  Comyns  for  saying  that  such  is  the  law.  In  the 
note  to  Fitzherbert,  Nat.  Brevium,  128,  which  is  attributed  to  Lord 
Hale,  it  is  said,  "  If  A.  and  B.  have  lands  adjoining,  where  there  is  no 
enclosure,  the  one  shall  have  trespass  against  the  other  on  an  escape  of 
their  beasts  respectively:  Dyer,  372,  Rastal  Ent.  621,  20  Ed.  4,  10; 
although  wild  dogs,  &c.,  drive  the  cattle  of  the  one  into  the  lands  of 
the  other."  No  case  is  known  to  us  on  which  in  replevin  it  has  ever 
been  attempted  to  plead  in  bar  to  an  avowry  for  distress  damage 
feasant,  that  the  cattle  had  escaped  without  any  negligence  on  the 
part  of  the  plaintiff,  and  surely  if  that  could  have  been  a  good  plea  in 
bar,  the  facts  must  often  have  been  such  as  would  have  supported  it. 
These  authorities,  and  the  absence  of  any  authority  to  the  contrary, 
justify  Williams,  J.,  in  saying,  as  he  does  in  Cox  v.  Burbidge,  supra, 
that  the  law  is  clear  that  in  actions  for  damage  occasioned  by  animals 
that  have  not  been  kept  in  by  their  owners,  it  is  quite  immaterial 
whether  the  escape  is  by  negligence  or  not. 


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458  RYLANDS  V.  FLETCHER  [CHAP.  III. 

As  has  been  already  said,  there  does  not  appear  to  be  any  difiference 
in  principle  between  the  extent  of  the  duty  cast  on  him  who  brings 
cattle  on  his  land  to  keep  them  in,  and  the  extent  of  th6  duty  imix)sed 
on  him  who  brings  on  his  land  water,  filth,  or  stenches,  or  any  other 
thing  which  will,  if  it  escape,  naturally  do  damage,  to  prevent  their 
escaping  and  injuring  his  neighbor;  and  the  case  of  Tenant  v.  Gold- 
win,  supra,  is  an  express  authority  that  the  duty  is  the  same,  and  is, 
to  keep  them  in  at  his  peril. 

As  Martin,  B.,  in  his  judgment  below,  appears  not  to  have  imder- 
stood  that  case  in  the  same  manner  as  we  do,  it  is  proper  to  examine  it 
in  some  detail.  It  was  a  motion  in  arrest  of  judgment  after  judgment 
by  default,  and  therefore  all  that  was  well  pleaded  in  the  declaration 
was  admitted  to  be  true.  The  declaration  is  set  out  at  full  length  in 
the  report  in  6  Mod.  p.  311.  It  alleged  that  the  plaintiff  had  b,  cellar 
which  lay  contiguous  to  a  messuage  of  the  defendant,  "  and  used  (sole- 
bat)  to  be  separated  and  fenced  from  a  privy  house  of  office,  parcel  of 
the  said  messuage  of  defendant,  by  a  thick  and  close  wall,  which  be- 
longs to  the  said  messuage  of  the  defendant,  and  by  the  defendant  of 
right  ought  to  have  been  repaired  (jure  debuit  reparari)"  Yet  he 
did  not  repair  it,  and  for  want  of  repair  filth  flowed  into  plaintiff's 
cellar.  The  case  is  reported  by  Salkeld,  who  argued  it,  in  6  Mod., 
and  by  Lord  Raymond,  whose  report  is  the  fullest.  The  objection 
taken  was  that  there  was  nothing  to  show  that  the  defendant  was 
under  any  obligation  to  repair  the  wall,  that,  it  was  said,  being  a 
charge  not  of  common  right,  and  the  allegation  that  the  wall  de  jure 
debuit  reparari  by  the  defendant  being  an  inference  of  law  which  did 
not  arise  from  the  facts  alleged.  Salkeld  argued  that  this  general 
mode  of  stating  the  right  was  sufficient  in  a  declaration,  and  also  that 
the  duty  alleged  did  of  common  right  result  from  the  facts  stated.  It 
is  not  now  material  to  inquire  whether  he  was  or  was  not  right  on  the 
pleading  point.  All  three  reports  concur  in  saying  that  Lord  Holt, 
during  the  argument,  intimated  an  opinion  against  him  on  that,  but 
that  after  consideration  the  Court  gave  judgment  for  him  on  the 
second  ground.  In  the  report  of  6  Mod.  314,  it  is  stated:  "  And  at 
another  day  per  totam  curiam.  The  declaration  is  good;  for  there  is  a 
sufficient  cause  of  action  appearing  in  it;  but  not  upon  the  word 
'  solebaiJ  If  the  defendant  has  a  house  of  office  enclosed  with  a  wall 
which  is  his,  he  is  of  common  right  bound  to  use  it  so  as  not  to  annoy 
another.  .  .  .  The  reason  here  is,  that  one  must  use  his  own  so  as 
thereby  not  to  hurt  another,  and  as  of  common  right  one  is  bound  to 
keep  his  cattle  from  trespassing  on  his  neighbor,  so  he  is  bound  to  use 
anything  that  is  his  so  as  not  to  hurt  another  by  such  user.  .  .  .  Sup- 
pose one  sells  a  piece  of  pasture  lying  open  to  another  piece  of  pasture 
which  the  vendor  has,  the  vendee  is  bound  to  keep  his  cattle  from 
running  into  the  vendor's  piece;  so  of  dung  or  anything  else."  There 
is  here  an  evident  allusion  to  the  same  case  in  Dyer,  see  ante^  p.  334,  as 


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SECT.  III.]  RYLANDS  V.  FLETCHER  459 

is  referred  to  in  Com.  Dig.  Droit.  (M.  2).  Lord  Raymond  in  his  re- 
port, 2  Ld.  Raym.  at  p.  1092,  says:  "  The  last  day  of  term.  Holt,  C. 
J.,  delivered  the  opinion  of  the  Court  that  the  declaration  was  suffi- 
cient. He  said  that  upon  the  face  of  this  declaration  there  appeared  a 
suflScient  cause  of  action  to  entitle  the  plaintifif  to  have  his  judgment; 
that  they  did  not  go  upon  the  solebat,  or  the  jure  debuit  repararij  as  if  it 
were  enough  to  say  that  the  plaintiff  had  a  house  and  the  defendant 
had  a  wall,  and  he  ought  to  repair  the  wall;  but  if  the  defendant  has 
a  house  of  office,  and  the  wall  which  separates  the  house  of  office  from 
the  plaintiff's  house  is  all  the  defendant's,  he  is  of  common  right  bound 
to  repair  it.  .  .  .  The  reason  of  this  case  is  upon  this  account,  that 
every  one  must  so  use  his  own  as  not  to  do  damage  to  another;  and 
as  every  man  is  bound  so  to  look  to  his  cattle  as  Jo  keep  them  out  of 
his  neighbor's  ground,  that  so  he  may  receive  no  damage;  so  he  must 
keep  in  the  filth  of  his  house  of  office  that  it  may  not  flow  in  upon  and 
danmify  his  neighbor.  ...  So  if  a  man  has  two  pieces  of  pasting 
which  he  open  to  one  another,  and  sells  one  piece,  the  vendee  must 
keep  in  his  cattle  so  as  they  shall  not  trespass  upon  the  vendor.  So  a 
man  shall  not  lay  his  dung  so  high  as  to  damage  his  neighbor,  and  the 
reason  of  these  cases  is  because  every  man  must  so  use  his  own  as  not 
to  damnify  another."  Salkeld,  who  had  been  counsel  in  the  case,  re- 
ports the  judgment  much  more  concisely  (1  Salk.  361),  but  to  the 
same  effect;  he  says:  "  The  reason  he  gave  for  his  judpnent  was  be- 
cause it  was  the  defendant's  wall  and  the  defendant's  filth,  and  he  was 
bound  of  common  right  to  keep  his  wall  so  as  his  filth  might  not 
damnify  his  neighbor,  and  that  it  was  a  trespass  on  his  neighbor,  as 
if  his  beasts  should  escape,  or  one  should  make  a  great  heap  on  the 
border  of  his  ground,  and  it  should  tumble  and  roll  down  upon  his 
neighbor's,  ...  he  must  repair  the  wall  of  his  house  of  office,  for  he 
whose  dirt  it  is  must  keep  it  that  it  may  not  trespass."  It  is  worth 
noticing  how  completely  the  reason  of  Lord  Holt  corresponds  with 
that  of  Brian,  C.  J.,  in  the  cases  already  cited  in  20  Ed.  4.  Martin,  B., 
in  the  Court  below  says  that  he  thinfcs  this  was  a  case  without  diffi- 
culty, because  the  defendant  had,  by  letting  judgment  go  by  default, 
admitted  his  liability  to  repair  the  wall,  and  that  he  cannot  see  how  it 
is  an  authority  for  any  case  in  which  no  such  Uability  is  admitted.  But 
a  perusal  of  the  report  will  show  that  it  was  because  Lord  Holt  and  his 
colleagues  thought  (no  matter  for  this  purpose  whether  rightly  or 
wrongly)  that  the  liability  was  not  admitted,  that  they  took  so  much 
trouble  to  consider  what  liability  the  law  would  raise  from  the  ad- 
mitted facts,  and  it  does  therefore  seem  to  us  to  be  a  very  weighty 
authority  in  support  of  the  position  that  he  who  brings  and  keeps  any- 
thing, no  matter  whether  beasts,  or  filth,  or  clean  water,  or  a  heap  of 
earth  or  dung  on  his  premises,  must  at  his  peril  prevent  it  from  getting 
on  his  neighbor's,  or  make  good  all  the  damage  which  is  the  natural 
consequence  of  its  doing  so.    No  case  has  been  found  in  which  the 


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460  RYLANDS  V.  FLETCHER  [CHAP.  III. 

question  as  to  the  liability  for  noxious  vapors  escaping  from  a  man's 
works  by  inevitable  accident  has  been  discussed,  but  the  following 
case  will  illustrate  it.  Some  years  ago  several  actions  were  brought 
against  the  occupiers  of  some  alkali  works  at  Liverpool  for  the  damage 
alleged  to  be  caused  by  the  chlorine  fumes  of  their  works.  The  defend- 
ants proved  that  they  at  great  expense  erected  contrivances  by  which 
the  fumes  of  chlorine  were  condensed  and  sold  as  muriatic  acid,  and 
they  called  a  great  body  of  scientific  evidence  to  prove  that  thk  ap- 
paratus was  so  perfect  that  no  fumes  possibly  could  escape  from  the 
defendants'  chimnejrs.  On  this  evidence  it  was  pressed  upon  the  jury 
that  the  plaintiff's  damage  must  have  been  due  to  some  of  the  nu- 
merous other  chimneys  in  the  neighborhood;  the  jury,  however,  being 
satisfied  that  the  n^^chief  was  occasioned  by  chlorine,  drew  the  con- 
clusion that  it  had  escaped  from  the  defendants'  works  somehow,  and 
in  each  case  found  for  the  plaintiff.  No  attempt  was  made  to  disturb 
these  verdicts  on  the  ground  that  the  defendants  had  taken  every 
precaution  which  prudence  or  skill  could  suggest  to  keep  those  fumes 
in,  and  that  they  could  not  be  responsible  imless  negligence  were 
shown;  yet,  if  the  law  be  as  laid  down  by  the  majority  of  the  Court  of 
Exchequer,  it  would  have  been  a  very  obvious  defence.  If  it  had  been 
raised  the  answer  would  probably  have  been  that  the  uniform  course 
of  pleading  in  actions  on  such  nuisances  is  to  say  that  the  defendant 
caused  the  noisome  vapors  to  arise  on  his  premises,  and  suffered  them 
to  come  on  the  plaintiff's,  without  stating  that  there  was  any  want  of 
care  or  skill  in  the  defendant,  and  that  the  case  of  Tenant  v.  Goldwin, 
supra,  showed  that  this  was  foimded  on  the  general  rule  of  law,  that 
he  whose  stuff  it  is  must  keep  it  that  it  may  not  trespass.  There  is 
no  difference  in  this  respect  between  chlorine  and  water;  both  will, 
if  they  escape,  do  damage,  the  one  by  scorching  and  the  other  by 
drowning,  and  he  who  brings  them  there  must  at  his  peril  see  that  they 
do  not  escape  and  do  that  mischief.  What  is  said  by  Gibbs,  C.  J.,  in 
Sutton  V,  Clarke,  6  Taunt.  44,  though  not  necessary  for  the  decision  of 
the  case,  shows  that  that  very  learned  judge  took  the  same  view  of  the 
law  that  was  taken  by  Lord  Holt.  But  it  was  further  said  by  Martin, 
B.,  that  when  damage  is  done  to  personal  property,  or  even  to  the 
person,  by  collision,  either  upon  land  or  at  sea,  there  must  be  negli- 
gence in  the  party  doing  the  damage  to  render  him  legally  responsible; 
and  this  is  no  doubt  true,  and  as  was  pointed  out  by  Mr.  Mellish  dur- 
ing his  argument  before  us,  this  is  not  confined  to  cases  of  collision,  for 
there  are  many  cases  in  which  proof  of  negligence  is  essential,  as,  for 
instance,  where  an  unruly  horse  gets  on  the  footpath  of  a  public  street 
and  kills  a  passenger,  Hammack  v.  White,  11  C.  B.  n.  s.  588;  31  L.  J. 
(C.  P.)  129;  or  where  a  person  in  a  dock  is  struck  by  the  falling  of  a 
bale  of  cotton  which  the  defendant's  servants  are  lowering:  Scott  v. 
London  Dock  Company,  3  H.  &  C.  596;  35  L.  J.  (Ex.)  17,  220;  and 
many  other  similar  cases  may  be  found.    But  we  think  these  cases 


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SECT.  III.]  RYLA1«)8  V.  FLETCHER  461 

distinguishable  from  the  present.  Traffic  on  the  highways,  whether  by 
land  or  sea,  cannot  be  conducted  without  exposing  those  whose  per- 
sons or  property  are  near  it  to  some  inevitable  risk;  and  that  being  so, 
those  who  go  on  the  highway,  or  have  their  property  adjacent  to  it, 
may  well  be  held  to  do  so  subject  to  their  taking  upon  themselves  the 
risk  of  injury  from  that  inevitable  danger;  and  persons  who  by  the 
license  of  the  owner  pass  near  to  warehouses  where  goods  are  being 
raised  or  lowered,  certainly  do  so  subject  to  the  inevitable  risk  of 
accident.  In  neither  case,  therefore,  can  they  recover  without  proof 
of  want  of  care  or  skill  occasioning  the  accident;  and  it  is  believed 
that  all  the  cases  in  which  inevitable  accident  has  been  held  an  excuse 
for  what  prima  facie  was  a  trespass,  can  be  explained  on  the  same 
principle,  viz.,  that  the  circmnstances  were  such  as  to  show  that  the 
plaintifif  had  taken  that  risk  upon  himself.  But  there  is  no  ground  for 
saying  that  the  plaintifif  here  took  upon  himself  any  risk  arising  from 
the  uses  to  which  the  defendants  should  choose  to  apply  their  land. 
He  neither  knew  what  these  might  be,  nor  could  he  in  any  way  control 
the  defendants,  or  hinder  their  building  what  reservoirs  they  liked, 
and  storing  up  in  them  what  water  they  pleased,  so  long  as  the  defend- 
ants succeeded  in  preventing  the  water  which  they  there  brought  from 
interfering  with  the  plaintifif's  property. 

The  view  which  we  take  of  the  first  point  renders  it  unnecessary  to 
consider  whether  the  defendants  would  or  would  not  be  responsible  for 
the  want  of  care  and  skill  in  the  persons  employed  by  them,  under  the 
circumstances  stated  in  the  case  [pp.  268-269]. 

We  are  of  opinion  that  the  plaintifif  is  entitled  to  recover,  but  as  we 
have  not  heard  any  argument  as  to  the  amount,  we  are  not  able  to 
give  judgment  for  what  damages.  The  parties  probably  will  empower 
their  counsel  to  agree  on  the  amount  of  damages;  should  they  dififer 
on  the  principle  the  case  may  be  mentioned  again. 

Judgment  for  the  plaintiff. 

Rylands  and  Horrocks  brought  error  in  the  House  of  Lords  against 
the  judgment  of  the  Exchequer  Chamber,  which  had  reversed  the 
judgment  of  the  Court  of  Exchequer. 

[Arguments  omitted.] 

The  Lord  Chancellor  (Lord  Cairns).  My  Lords,  in  this  case  the 
plaintifif  (I  may  use  the  description  of  the  parties  in  the  action)  is  the 
occupier  of  a  mine  and  works  under  a  close  of  land.  The  defendants 
are  the  owners  of  a  mill  in  his  neighborhood,  and  they  proposed  to 
make  a  reservoir  for  the  purpose  of  keeping  and  storing  water  to  be 
used  about  their  mill  upon  another  close  of  land,  which,  for  the  pur- 
poses of  this  case,  may  be  taken  as  being  adjoining  to  the  close  of  the 
plaintifif,  although  in  point  of  fact  some  intervening  land  lay  between 
the  two.  Underneath  the  close  of  land  of  the  defendants  on  which 
they  proposed  to  construct  their  reservoir  there  were  certain  old  and 
disused  mining  passages  and  works.    There  were  five  vertical  shafts 


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462  RYLANDS  V.  FLETCHER  [CHAP.  lU. 

and  some  horizontal  shafts  communicating  with  them.  The  vertical 
shafts  had  been  filled  up  with  soil  and  rubbish,  and  it  does  not  appear 
that  any  person  was  aware  of  the  existence  either  of  the  vertical  shafts 
or  of  the  horizontal  works  communicating  with  them.  In  the  course 
of  the  working  by  the  plaintiff  of  his  mine  he  had  gradually  worked 
through  the  seams  of  coal  underneath  the  close,  and  had  come  into 
contact  with  the  old  and  disused  works  imdemeath  the  close  of  the 
defendants. 

In  that  state  of  things  the  reservoir  of  the  defendants  was  con- 
structed. It  was  constructed  by  them  through  the  agency  and  inspec- 
tion of  an  engineer  and  contractor.  Personally,  the  defendants  appear 
to  have  taken  no  part  in  the  works,  or  to  have  been  aware  of  any  want 
of  security  connected  with  them.  As  regards  the  engineer  and  the 
contractor,  we  must  take  it  from  the  case  that  they  did  not  exercise, 
as  far  as  they  were  concerned,  that  reasonable  care  and  caution  which 
they  might  have  exercised,  taking  notice,  as  they  appear  to  have  taken 
notice,  of  the  vertical  shafts  filled  up  in  the  manner  which  I  have  men- 
tioned. However,  my  Lords,  when  the  reservoir  was  constructed  and 
filled,  or  partly  filled,  with  water,  the  weight  of  the  water  bearing 
upon  the  disused  and  imperfectly  filled-up  vertical  shafts,  broke 
through  those  shafts.  The  water  passed  down  them  and  into  the  hori- 
zontal workings,  and  from  the  horizontal  workings  under  the  close  of 
the  defendants  it  passed  on  into  the  workings  imder  the  close  of  the 
plaintiff,  and  flooded  his  mine,  causing  considerable  damage,  for  which 
this  action  was  brought. 

The  Court  of  Exchequer,  when  the  special  case  stating  the  facts  to 
which  I  have  referred  was  argued,  was  of  opinion  that  the  plaintiff  had 
established  no  cause  of  action.  The  Court  of  Exchequer  Chamber,  be- 
fore which  an  appeal  from  this  judgment  was  argued,  was  of  a  contrary 
opinion,  and  the  judges  there  unanimously  arrived  at  the  conclusion 
that  there  was  a  cause  of  action,  and  that  the  plaintiff  was  entitled  to 
damages. 

My  Lords,  the  principles  on  which  this  case  must  be  determined 
appear  to  me  to  be  extremely  simple.  The  defendants,  treating  them 
as  the  owners  or  occupiers  of  the  close  on  which  the  reservoir  was  con- 
structed, might  lawfully  have  used  that  close  for  any  piupose  for 
which  it  might  in  the  ordinary  course  of  the  enjoyment  of  land  be 
used;  and  if,  in  what  I  may  term  the  natural  user  of  that  land,  there 
had  been  any  accumulation  of  water,  either  on  the  surface  or  under 
groimd,  and  if,  by  the  operation  of  the  laws  of  nature,  that  accumula- 
tion of  water  had  passed  off  into  the  close  occupied  by  the  plaintiff, 
the  plaintiff  could  not  have  complained  that  that  result  had  taken 
place.  If  he  had  desired  to  guard  himself  against  it,  it  would  have  lain 
upon  him  to  have  done  so  by  leaving,  or  by  interposing,  some  barrier 
between  his  close  and  the  close  of  the  defendants  in  order  to  have 
prevented  that  operation  of  the  laws  of  nature. 


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SECT,  in.]  RYLA1«)S  V.  FLETCHER  463 

As  an  illustration  of  that  principle,  I  may"  refer  to  a  case  which  was 
cited  in  the  argument  before  your  Lordships,  the  case  of  Smith  v. 
Kenrick,  in  the  Court  of  Common  Pleas,  7  C.  B.  515. 

On  the  other  hand,  if  the  defendants,  not  stopping  at  the  natural 
use  of  their  close,  had  desired  to  use  it  for  any  purpose  which  I  may 
term  a  non-natural  use,^  for  the  purpose  of  introducing  into  the  close 
that  which  in  its  natural  condition  was  not  in  or  upon  it,  for  the  pur- 
pose of  introducing  water  either  above  or  below  ground  in  quantities 
and  in  a  manner  not  the  result  of  any  work  or  operation  on  or  under 
the  land;  and  if  in  consequence  of  their  doing  so,  or  in  consequence 
of  any  imperfection  in  the  mode  of  their  doing  so,  the  water  came  to 
escape  and  to  pass  off  into  the  close  of  the  plaintiff,  then  it  appears 
to  me  that  that  which  the  defendants  were  doing  they  were  doing  at 
their  own  peril;  and  if  in  the  coiUTse  of  their  doing  it  the  evil  arose 
to  which  I  have  referred,  the  evil,  namely,  of  the  escape  of  the  water 
and  its  passing  away  to  the  close  of  the  plaintiff  and  injuring  the 
plaintiff,  then  for  the  consequence  of  that,  in  my  opinion,  the  defend- 
ants would  be  liable.  As  the  case  of  Smith  v.  Kenrick  is  an  illustra- 
tion of  the  first  principle  to  which  I  have  referred,  so  also  the  second 

1  "  It  is  not  every  use  to  which  the  land  is  put  that  brings  into  play  that  prin- 
ciple [Rylands  v.  Fletcher].  It  must  be  some  special  use  bringing  with  it  increased 
danger  to  others,  and  mujst  not  merely  be  the  ordinary  use  of  the  land  or  such  a 
use  as  is  proper  for  the  general  benefit  of  the  conunimity."  Lord  Moulton  in 
Rickards  v.  Lothian,  [1913]  A.  C.  263,  280. 

"  This  was  a  case  of  the  escape  of  water  from  lavatory  pipes.  It  would  appear, 
therefore,  that  the  construction  of  distributing  water-pipes  in  a  building  is  an 
ordinary  and  natural  use  of  land,  but  that  the  construction  of  the  water-mains  or 
reservoirs  from  which  the  water  is  obtained  is  not  so.  Such  unreal  and  imprac- 
ticable distinctions  are  not  creditable  to  the  development  of  English  law.''  Sal- 
mond,  Torts  (4  ed.)  1 61,  n.  13. 

See  the  remarks  of  Doe,  C.  J.,  in  Brown  v.  Collins,  infray  p.  482. 

*^  This  rule  is  rightly  applicable  only  to  such  unusual  and  extraordinary  uses  of 
property  in  reference  to  the  benefits  to  be  derived  from  the  use  and  the  dangers  or 
losses  to  which  others  are  exposed,  as  should  not  be  permitted  except  at  the  sole 
risk  of  the  user.  The  standard  of  duty  established  bv  the  courts  in  these  cases  is 
that  ever>  owner  shcdl  refrain  from  these  imwarrantable  and  extremely  dangerous 
uses  of  property  unless  he  provides  safeguards  whose  perfection  he  guarantees. . . . 
The  prmciple  applicable  to  the  erection  of  common  buildings  whose  fall  might  do 
damage  to  persons  or  property  on  the  adjacent  premises  holds  owners  to  a  less 
strict  duty.  This  principle  is  that  where  a  certain  lawful  use  of  pr<^)erty  will 
bring  to  pass  wrongful  consequences  from  the  condition  in  which  the  prop^y  is 
put,  if  these  are  not  gucutied  against,  an  owner  who  makes  such  a  use  is  bound  at 
nis  peril  to  see  that  proper  care  is  taken  in  every  particular  to  prevent  the  wrong. 
.  .  .  The  duty  which  the  law  imposes  upon  an  owner  of  real  estate  in  such  a 
case,  is  to  make  the  conditions  safe  so  far  as  it  can  be  dcme  by  the  exercise  of 
ordinary  care  on  the  part  of  all  those  engaged  in  the  work.  He  is  responsible  for 
the  negUgence  of  independent  contractors  as  well  as  for  that  of  his  servants.  This 
rule  is  applicable  to  every  one  who  builds  an  ordinary  wall  which  is  liable  to  do 
serious  injury  by  falling  outside  of  his  own  premises.  .  .  .  The  uses  of  property 
governed  by  this  rule  are  those  that  bring  new  conditions  which  involve  risks  to 
the  persons  or  property  of  others,  but  which  are  ordinary  and  usual  and  in  a  sense 
natural,  as  incident  to  the  ownership  of  the  land.  The  rule  first  referred  to  applies 
to  unusual  and  extraordinary  uses  which  are  so  fraught  with  peril  to  others  that 
the  owner  dhould  not  be  permitted  to  adopt  them  for  his  own  purposes  without 
absolutely  protecting  his  neighbors  from  mjury  or  loss  by  reason  of  the  use.'' 
Knowlton,  J.,  in  Ainsworth  v,  Lakin,  180  Mass.  397,  399-401. 


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464  RYLANDS  V.  FLETCHER  [CHAP.  HI. 

principle  to  which  I  have  referred  is  well  illustrated  by  another  case 
in  the  same  Court,  the  case  of  Baird  v.  Williamson,  15  C.  B.  N.  s.  317, 
which  was  also  cited  in  the  argument  at  the  Bar. 

My  Lords,  these  simple  principles,  if  they  are  well  founded,  as  it 
appears  to  me  they  are,  really  dispose  of  this  case. 

The  same  result  is  arrived  at  on  the  principles  referred  to  by  Mr. 
Justice  Blackburn  in  his  judgment  in  the  Court  of  Exchequer  Cham- 
ber, where  he  states  the  opinion  of  that  Court  as  to  the  law  in  these 
words:  '*  We  think  that  the  true  rule  of  law  is  that  the  person  who, 
for  his  own  purposes,  brings  on  his  land  and  collects  and  keeps  there 
anything  Ukely  to  do  mischief  if  it  escapes,  must  keep  it  in  at  his 
peril;  and  if  he  does  not  do  so,  is  prima  facte  answerable  for  all  the 
damage  which  is  the  natural  consequence  of  its  escape.  He  can  excuse 
himself  by  showing  that  the  escape  was  owing  to  the  plaintiff's  default; 
or,  perhaps,  that  the  escape  was  the  consequence  of  vis  majors  or  the 
act  of  God;  but  as  nothing  of  this  sort  exists  here,  it  is  unnecessary 
to  inquire  what  excuse  would  be  sufficient.  The  general  rule,  as  above 
stated,  seems  on  principle  just.  The  person  whose  grass  or  com  is 
eat^n  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  vapors  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 
will  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  confin- 
ing 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  anticipated  consequence.  And  upon  authority  this  we 
think  is  established  to  be  the  law,  whether  the  things  so  brought  be 
beasts,  or  water,  or  filth,  or  stenches." 

My  Lords,  in  that  opinion  I  must  say  I  entirely  concur.  Therefore, 
I  have  to  move  your  Lordships  that  the  judgment  of  the  Court  of 
Exchequer  Chamber  be  affirmed,  and  that  the  present  appeal  be  dis- 
missed with  costs. 

Lord  Cranworth.  My  Lords,  I  concur  with  my  noble  and  learned 
friend  in  thinking  that  the  rule  of  law  was  correctly  stated  by  Mr. 
Justice  Blackburn  in  delivering  the  opinion  of  the  Exchequer  Cham- 
ber. ^^  a  person  brings,  or  accumulates,  on  his  land  anything  which, 
if  it  should  escape,  may  cause  damage  to  his  neighbor,  he  does  so  at 
his  peril.  If  it  does  escape  and  cause  damage,  he  is  responsible,  how- 
ever careful  he  may  have  been,  and  whatever  precautions  he  may  have 
taken  to  prevent  the  damage.^ 


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SECT.  III.]  RYLANDS  V.  FLETCHER  466 

In  considering  whether  a  defendant  is  liable  to  a  plaintiff  for  dam- 
age which  the  plaintiff  may  have  sustained,  the  question  in  general  is 
not  whether  the  defendant  has  acted  with  due  care  and  caution,  but 
whether  his  acts  have  occasioned  the  damage.  This  is  all  well  ex- 
plained in  the  old  case  of  Lambert  v.  Bessey,  reported  by  Sir  Thomas 
Raymond  (Sir  T.  Raym.  421).  And  the  doctrine  is  foimded  on  good 
sense.  For  when  one  person,  in  managing  his  own  affairs,  causes, 
however  innocently,  damage  to  another,  it  is  obviously  only  just  that 
he  should  be  the  party  to  suffer.  He  is  bound  sic  uti  suo  ut  non  hedcU 
alienum.  This  is  the  principle  of  law  applicable  to  cases  like  the  pres- 
ent, and  I  do  not  discover  in  the  authorities  which  were  cited  anything 
conflicting  with  it. 

The  doctrine  appears  to  me  to  be  well  illustrated  by  the  two  modem 
cases  in  the  Court  of  Common  Pleas  referred  to  by  my  noble  and 
learned  friend.  I  allude  to  the  two  cases  of  Smith  v,  Kenrick,  supra, 
and  Baird  v.  Williamson,  supra.  In  the  former  the  owner  of  a  coal 
mine  on  the  higher  level  worked  out  the  whole  of  his  coal,  leaving  no 
barrier  between  his  mine  and  the  mine  on  the  lower  level,  so  that  the 
water  percolating  through  the  upper  mine  flowed  into  the  lower  mine, 
and  obstructed  the  owner  of  it  in  getting  his  coal.  It  was  held  that 
the  owner  of  the  lower  mine  had  no  ground  of  complaint.  The  de- 
fendant, the  owner  of  the  upper  mine,  had  a  right  to  remove  all  his 
coal.  The  damage  sustained  by  the  plaintiff  was  occasioned  by  the 
natural  flow  or  percolation  of  water  from  the  upper  strata.  There  was 
no  obligation  on  the  defendant  to  protect  the  plaintiff  against  this. 
It  was  his  business  to  erect  or  leave  a  sufficient  barrier  to  keep  out  the 
water,  or  to  adopt  proper  means  for  so  conducting  the  water  as  that 
it  should  not  impede  him  in  his  workings.  The  water  in  that  case  was 
only  left  by  the  defendant  to  flow  in  its  natural  course. 

But  in  the  later  case  of  Baird  v.  Williamson,  the  defendant,  the 
owner  of  the  upper  mine,  did  not  merely  suffer  the  water  to  flow 
through  his  mine  without  leaving  a  barrier  between  it  and  the  mine 
below,  but  in  order  to  work  in  his  own  mine  beneficially  he  pumped  up 
quantities  of  water  which  passed  into  the  plaintiff's  mine  in  addition 
to  that  which  would  have  naturally  reached  it,  and  so  occasioned  him 
damage.  Though  this  was  done  without  negUgence  and  in  the  due 
working  of  his  own  mine,  yet  he  was  held  to  be  responsible  for  the 
damage  so  occasioned.  It  was  in  consequence  of  his  act,  whether  skil- 
fully or  imskilfully  performed,  that  the  plaintiff  had  been  damaged, 
and  he  was  therefore  held  liable  for  the  consequences.  The  damage 
in  the  former  case  may  be  treated  as  having  arisen  from  the  act  of 
God;  in  the  latter,  from  the  act  of  the  defendant. 

Applying  the  principle  of  these  decisions  to  the  case  now  before  the 
House,  I  come  without  hesitation  to  the  conclusion  that  the  judgment 
of  the  Exchequer  Chamber  was  right.  The  plaintiff  had  a  right  to 
work  his  coal  through  the  lands  of  Mr.  Whitehead  and  up  to  the  old 


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466  RYLANDS  V.  FLETCHER  '      [CHAP.  IH. 

workings.  If  water  naturally  rising  in  the  defendants'  land  (we  may 
treat  the  land  as  the  land  of  the  defendants  for  the  purpose  of  this 
ease)  had  by  percolation  found  its  way  down  to  the  plaintiff's  mine 
through  the  old  workings,  and  so  had  impeded  his  operations,  that 
would  not  have  afforded  him  any  groimd  of  complaint.  Even  if  all 
the  old  workings  had  been  made  by  the  plaintiff,  he  would  have  done 
no  more  than  he  was  entitled  to  do;  for,  according  to  the  principle 
acted  on  in  Smith  v.  Kenrick,  the  person  working  the  mine  under  the 
close  in  which  the  reservoir  was  made  had  a  right  to  win  and  carry 
away  all  the  coal  without  leaving  any  wall  or  barrier  against  White- 
head's land.  But  that  is  not  the  real  state  of  the  case.  The  defend- 
ants, in  order  to  effect  an  object  of  their  own,  brought  on  to  their  land, 
or  on  to  land  which  for  this  purpose  may  be  treated  as  being  theirs,  a 
large  accumulated  mass  of  water,  and  stored  it  up  in  a  reservoir.  The 
consequence  of  this  was  damage  to  the  plaintiff,  and  for  that  damage, 
however  skilfuUy  and  carefully  the  accumulation  was  made,  the  de- 
fendants, according  to  the  principles  and  authorities  to  which  I  have 
adverted,  were  certainly  responsible. 

I  concur,  therefore,  with  my  noble  and  learned  friend  in  thinking 
that  the  judgment  below  must  be  aflSrmed,  and  that  there  must  be 
judgment  for  the  defendant  in  error. 

Judgment  of  the  Court  of  Exchequer  Chamber  afvnned} 

1  Eastern  Tel.  Co.  v.  Capetown  Tramways  Cos.,  [1902]  A.  C.  381;  Midwood  v, 
Manchester  Corporation.  [1905]  2  K.  B.  697;  Charing  Cross  Co.  v,  London  Hy- 
draulic Power  Co..  [1913]  3  K.  B.  442,  [1914]  3  K.  B.  772;  Brennan  Construction 
Co.  V.  Cumberland,  29  App.  D.  C.  664  (crude  petroleum  in  tank);  Shipley  t;.  Asso- 
ciates, 106  Mass.  194:  Cahill  v.  Eastman,  18  Minn.  324;  Wiltse  v.  Red  Wing,  99 
Minn.  265  (reservoir);    French  r.  Carter  Creek  Mfg.  Co.,  173  Mo.  App.  220 

a ored  nitroglycerine);  Defiance  Water  Co.  v.  Olinger,  64  Ohio  St.  532;  Bradford 
.  r.  St.  Mwy's  Co.,  60  Ohio  St.  660  (stored  nitro^ycerine) ;  Luigabaugh  v.  An- 
derson, 68  Ohio  St.  131  (crude  petroleiun  in  tank) ;  Texas  R.  Co.  v.  Frazer  (Tex. 
Qv.  App.)  182  S.  W.  1161  (dam) ;  Weaver  Mercantile  Co.  v.  Thurmond.  68  W.  Va. 
630  Accord.    See  Wmg  v,  London  General  Omnibus  Co.,  [1909]  2  K.  B.  662. 

"  In  every  case  of  the  kind  which  has  been  reported  since  Rjj^lands  v,  Fletcher, 
that  is,  during  the  last  25  years,  there  has  been  a  manifest  inclmation  to  discover 
something  in  the  facts  which  took  the  case  out  of  the  rule.  According  to  the  Eng- 
lish judicial  system  which  has  gone  roimd  the  world  with  the  English  language  and 
En^ish  or  Anglicized  institutions,  the  decisions  of  superior  courts  are  not  merely 
instructive  and  worthy  of  regard,  but  of  binding  authority  in  subsequent  cases  of 
the  like  sort.  But  there  are  some  authorities  which  are  followed  and  developed  in 
the  spirit,  which  become  the  starting-point  of  new  chapters  of  the  law;  there  are 
others  that  are  followed  only  in  the  letter^  and  become  slowly  but  surely  choked 
and  crippled  by  exceptions.  This  again,  is  independent  of  the  considerations  of 
local  fitness  which  must  always  have  weight  when  precedents  are  cited  from  a 
country  remote  both  in  place  and  in  manners.^'  Pollock,  Law  of  Fraud  in  British 
India,  63-64  (1894). 

"  In  August,  1908,  Count  Z.  sent  one  of  his  dirigibles  from  Mainz  to  Friedericks- 
hafen.  Some  motor  trouble  happened,  and  the  ship  was  landed  in  a  field.  Thou- 
sands of  people  rushed  to  the  place,  so  ropes  were  run  around  it,  and  soldiers  were 
ordered  on  guard.  The  ship  was  anchored,  and  in  addition  held  by  forty  men  with 
ropes  at  the  stem,  and  by  thirtsr  at  the  stem.  In  the  afternoon  a  sudden  thimder- 
storm  came  up,  struck  the  dirigible,  tore  it  loose  and  sent  it  adrift  for  about  a 
mile,  when  it  caught  fire  and  was  destroyed. 

Spectators  had  been  around  all  the  time,  and  were  standing  outside  the  ropes 
in  rows  several  deep.    Some  unfortunate  person  standing  in  Qie  outer  row  near 


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SECT.  III.]  RYLAND8  V.  FLETCHER  467 

the  rear  gondola,  was  caught  bv  the  ship's  anchor,  dragjged  into  the  air  and  car- 
ried for  some  distance;  in  the  fall,  one  of  his  legs  sustained  such  injuries  that  it 
had  to  be  amputated. 

He  brought  suit  for  damages,  and  was  nonsuited;  appealed;  same  result. 
Finally,  he  appealed  to  the  Reichskericht.  It  refused  to  interfere,  for  the  following 
reasons:  There  being  no  special  law  governing  damage  by  air-navigation,  it  be- 
comes necessary  to  prove  negligence  on  the  part  of  the  aviator  or  promoter.  The 
idea  that  the  mere  undertaking  of  a  business,  acknowledged  to  be  dangerous, 
carries  with  it  responsibility  for  all  damage  caused  thereby,  is  not  law.  The  only 
duty  which  the  hazardousness  of  the  imdertaking  imposes  upon  the  person  en- 
gaged therein,  is  that  of  extra  care.  Otherwise,  almost  all  kinos  of  transportation 
would  be  impossible. 

In  this  case,  the  trip  had  commenced  diuring  exceptionally  fine  weather,  which 
continued  until  after  the  time  when  the  ship  had  been  landed  and  anchored. 
Defendant  had  proved  that  on  former  occasions  he  had  succeeded  in  landing, 
anchoring  and  holding  his  ship,  even  when  the  weather  was  unfavorable,  and  that 
the  means  he  on  such  occasions  had  employed  in  keeping  the  ship  at  its  moorings, 
were  not  any  stronger  than  those  employed  on  this  occasion;  in  fact,  they  were 
weaker.  It  could  not  be  demanded  of  the  defendant  that  he  should  anticipate  and 
provide  against  such  an  extraordinary  violent  gust  of  wind  as  tore  his  airship 
away."    76  Central  Law  Joum.  311  (1912). 

In  Charing  Cross  Co.  v.  London  Hydraulic  Power  Co»  [1914]  3  K.  B.  772,  hv- 
draulic  mains  under  the  streets  burst  and  injured  plaintiff's  cables,  also  laid  in  the 
streets.  Lord  Sumner  said  (pp.  779-780) :  ^*  1  think  that  this  present  case  is  also 
indistinguishable  from  Rylands  v.  Fletcher.  Two  grounds  of  distinction  have  been 
suggested.  It  is  said  that  the  doctrine  of  Rylands  v.  Fletcher  is  apphcable  between 
the  owners  of  adjacent  doses,  which  are  adjacent  whether  there  be  any  inter- 
mediate property  or  not ;  and  that  it  is  a  doctrme  depending  upon  the  ownership  of 
land  ana  the  rights  attaching  to  the  ownership  of  land,  under  which  violations 
of  that  species  of  right  can  be  prevented  or  punished.  In  the  present  case  instead 
of  having  two  adjacent  owners  of  real  property,  you  have  only  two  neighboring 
owners,  not  stricUy  adjacent,  of  chattels,  whose  chattels  are  there  imder  a  per- 
mission which  might  have  been  obtained  by  the  private  license  of  the  owners  of  the 
soil,  though  in  fact  obtained  under  parliamentary  powers;  hence  the  two  com- 
panies are  in  the  position  of  co-users  of  a  highway,  or  at  any  rate  of  co-users  of 
different  rooms  in  one  house,  and  Rylands  v,  Fletcher  does  not  apply.  The  case 
depends  on  doctrines  applicable  to  the  highways,  or  to  houses  let  out  in  tenements. 
I  am  unable  to  asree  with  any  of  these  distinctions,  though  they  have  been  pressed 
upon  us  bv  both  learned  counsel  with  great  resource  and  command  of  the  authori- 
ties. Midwood  V.  Manchester  Corporation,  [1905]  2  K.  B.  597,  is  not  decided  as  a 
case  of  a  dispute  arising  between  the  owners  of  two  adjacent  closes.  The  case  is 
treated  as  one  between  a  corporation,  whose  business  imder  the  roadwajr  is  exactly 
similar  to  that  of  the  defendant  corporation  here,  and  injured  occupiers  of  the 
\  Dremises.  If  the  distinction  drawn  between  the  present  case  and  that  of  adjacent 
otKlowners  in  Rylands  v.  Fletcher  be  a  good  one,  it  either  was  not  taken  in  Mid- 
wood  V.  Manchester  Corporation  or  was  taken  and  treated  as  of  no  importance. 
Further  I  am  satisfied  that  Rylands  v.  Fletcher  is  not  limited  to  the  case  of  adja- 
cent freeholders.  I  shall  not  attempt  to  show  how  far  it  extends.  It  extends  as 
far  as  this  case,  and  that  is  enough  for  the  present  purpose." 

See  Thayer,  Liability  Without  Fault,  29  Harv.  Law  Rev.  801:  Bohlen,  The 
Rule  in  Rylands  v.  Fletcher,  59  University  of  Pennsylvania  Law  Rev?  298,  373, 
423;  Wigmore,  Responsibility  for  Tortious  Acts:  Its  History,  7  Harv.  Law  Rev. 
315,  383,  442. 

Lddbikty  in  case  of  customary  or  statutory  duty  or  authority  to  use  land  as  de- 
fendant did,  see  Madras  R.  Co.  v.  Zemindar,  L.  R.  1  Ind.  App.  364;  Green  v, 
Chelsea  Waterworks  Co.,  70  L.  T.  547;  Price  v.  South  Metropolitan  Gas  Co.,  66 
L.  J.  Q.  B.  N.  a.  126;  Qty  t;.  Bridgeport  Hydraulic  Co.,  81  Conn.  84. 


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468  NICHOLS  V.  MARSLAND  [CHAP.  III. 

NICHOLS  V.  MARSLAND 
In  the  Exchequer,  June  12,  1875. 

Reported  in  Law  Reports,  10  Exchequer,  255. 


NICHOLS  V.  MARSLAND 

In  the  Court  of  Appeal,  Dbcebiber  1, 1876. 

Reported  in  Law  Reports,  2  Exchequer  Division,  1. 

The  plaintiff  sued  as  the  surveyor  for  the  County  of  Chester  of 
bridges  repairable  at  the  expense  of  the  county. 

The  first  count  of  the  declaration  alleged  ^at  the  defendant  was 
possessed  of  lands  and  of  artificial  pools  constructed  thereon  for  re- 
ceiving and  holding,  and  wherein  were  kept,  large  quantities  of  water, 
yet  the  defendant  took  so  little  and  such  bad  care  of  the  pools  and  the 
water  therein  that  large  quantities  of  water  escaped  from  the  pools 
and  destroyed  four  county  bridges,  whereby  the  inhabitants  of  the 
county  incurred  expense  in  repairing  and  rebuilding  them. 

The  second  count  alleged  that  the  defendant  was  possessed  of  large 
quantities  of  water  collected  and  contained  in  three  artificial  pools  of 
the  defendant  near  to  four  county  bridges,  and  stated  the  breach  as  in 
the  first  count. 

Plea,  not  guilty,  and  issue  thereon. 

At  the  trial  before  Cockburn,  C.  J.,  at  the  Chester  Summer  Assizes, 
1874,  the  plaintiff ^s  witnesses  gave  evidence  to  the  following  effect: 
The  defendant  occupied  a  mansion«-house  and  grounds  at  Henbury,  in 
the  County  of  Chester.  A  natural  stream  called  Bagbrook,  which  rose 
in  higher  lands,  ran  through  the  defendant's  grounds,  and  after  leaving 
them  flowed  under  the  four  county  bridges  in  question.  After  enter- 
ing the  defendant's  grounds  the  stream  was  diverted  and  dammed 
up  by  an  artificial  embankment  into  a  pool  of  three  acres  in  area 
called  "  the  upper  pool,"  from  which  it  escaped  over  a  weir  in  the 
embankment,  and  was  again  similarly  dammed  up  by  an  artificial 
embankment  into  the  "  middle  pool,*'  which  was  between  one  and  two 
acres  in  area.  Escaping  over  a  weir  in  the  embankment,  it  was  again 
dammednip  into  "  the  lower  pool,"  which  was  between  eight  and  nine 
acres  in  area,  and  from  which  the  stream  escaped  into  its  natural  and 
original  coiu^. 

About  five  o'clock  p.m.  on  the  18th  of  June,  1872,  occurred  a  ter- 
rible thunder  storm,  accompanied  by  heavy  rain,  which  continued  till 
about  three  o'clock  a.m.  on  the  19th.  The  rainfall  was  greater  and 
more  violent  than  any  within  the  memory  of  the  witnesses,  and  swelled 
the  stream  both  above  and  in  the  defendant's  groimds.  On  the  morn- 
ing of  the  19th  it  was  foimd  that  during  the  night  the  violence  and 
volume  of  the  water  had  carried  away  the  artificial  embankments  of 


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SECT.  III.]  NICHOLS  V.  MARSLAND  469 

the  three  pools,  the  accumulated  water  in  which,  being  thus  suddenly 
let  loose,  had  swelled  the  stream  below  the  pools  so  that  it  carried 
away  and  destroyed  the  county  bridges  mentioned  in  the  declaration. 
At  the  pools  were  paddles  for  letting  ofif  the  water,  but  for  several 
years  they  had  been  out  of  working  order. 

Some  engineers  and  other  witnesses  gave  evidence  that  in  their 
opinion  the  weir  in  the  upper  pool  was  far  too  small  for  a  pool  of  that 
size,  and  that  the  mischief  happened  through  the  insufficiency  of  the 
means  for  carrying  oflf  the  water.  It  was  not  proved  when  these  orna- 
mental pools  were  constructed,  but  it  appeared  that  they  had  existed 
before  the  defendant  began  to  occupy  the  property,  and  that  no 
similar  accident  had  ever  occurred  within  the  knowledge  of  the 
witnesses. 

After  hearing  the  address  of  the  defendant's  counsel,  the  jury  said 
they  did  not  wish  to  hear  his  witnesses,  and  that  in  their  opinion  the 
accident  was  caused  by  vis  major.  In  answer  to  Cockbum,  C.  J.,  they 
found  that  there  was  no  negligence  in  the  construction  or  maintenance 
of  the  works,  and  that  the  rain  was  most  excessive.  Cockbum,  C.  J., 
being  of  opinion  that  the  rainfall,  though  extraordinary  and  unprece- 
dented, did  not  amount  to  vis  major  or  excuse  the  defendant  from  lia- 
biUty,  entered  the  verdict  for  the  plaintiff  for  40921.,  the  agreed 
amount,  reserving  leave  to  the  defendant  to  move  to  enter  it  for  her 
if  the  Court  (who  were  to  draw  inferences  of  fact)  should  be  of  opinion 
that  the  rainfall  amounted  to  vis  majoTy  and  so  distinguished  the 
case  from  Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330. 

A  rule  nisi  having  been  accordingly  obtained  to  enter  the  verdict  for 
the  defendant  on  the  groimd  that  there  was  no  proof  of  liability,  the 
plaintiff  on  showing  cause  to  be  at  Uberty  to  contend  that  a  new  trial 
should  be  granted  on  the  ground  that  the  finding  of  the  jury  was 
against  the  weight  of  evidence  — 

May  27.  Mclntyre,  Q.  C,  and  Coxon,  for  the  plaintiff,  showed 
cause.  The  defendant,  having  for  her  own  purposes  and  advantage 
stored  a  dangerous  element  on  her  premises,  is  liable  if  that  element 
escapes  and  injures  the  property  of  another,  even  though  the  escape 
be  caused  by  an  earthquake  or  any  form  of  vis  major. 

[Cleasby,  B.  Was  not  the  flood  brought  on  to  the  defendant's 
land  by  vis  major  f] 

The  pools  were  made  by  those  through  whom  the  defendant  claims, 
and  if  there  had  been  no  pools  the  water  of  the  natural  stream  would 
have  escaped  without  doing  injury.  The  case  falls  within  the  rule  laid 
down  by  the  judgment  in  Fletcher  v,  Rylands,  L.  R.  1  Ex.  265,  279, 
delivered  by  Blackburn,  J.:  "  We  think  that  the  true  rule  of  law  is, 
that  the  person  who  for  his  own  purposes  brings  on  his  lands,  and  col- 
lects and  keeps  there  anything  likely  to  do  mischief  if  it  escapes,  must 
keep  it  in  at  his  peril,  and  if  he  does  not  do  so  is  prim>a  facie  answer- 
able for  all  the  damage  which  is  the  natural  consequence  of  its  escape. 


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470  NICHOLS  V.  MARSLAND  [CHAP.  Ill, 

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."  This  passage  was  cited  with  approval 
by  Lord  Cairns,  C,  and  Lord  Cranworth  on  appeal.  L.  R.  3  H.  L. 
330,  339,  340. 

[Cleasby,  B.  There  the  defendant  brought  the  water  on  to  his  own 
land.    Not  so  here.] 

The  intimation  that  vis  major  would  perhaps  be  an  excuse  is  not 
confirmed  by  any  decision  or  anj^  other  dictum.  But  the  facts  here 
do  not  amount  to  vis  m/ijor.  If  the  weirs  had  been  larger,  or  the  banks 
stronger,  the  mischief  would  not  have  happened.  Vis  major  means 
something  which  cannot  be  foreseen  or  resisted,  as  an  earthquake  or 
an  act  of  the  Queen's  enemies. 

Hughes  and  Dunn  (Sir  J.  Holker,  S.  G.,  with  them),  in  support  of 
the  rule,  cited  Broom's  Legal  Maxims,  5th  ed.  p.  230:  "  The  act  of 
God  signifies  in  legal  phraseology  any  inevitable  accident  occurring 
without  the  intervention  of  man,  and  may  indeed  be  considered  to 
mean  something  in  opposition  to  the  act  of  man,  as  storms,  tempests, 
and  Ughtning:  per  Mansfield,  C.  J.,  in  Forward  v.  Pittard,  1  T.  R. 
33;  Trent  Navigation  v.  Wood,  3  Esp.  131;  Rex  v.  Somerset,  8  T.  R. 
312."  Also  Amies  v.  Stevens,  1  Str.  127;  Smith  v.  Fletcher,  L.  R. 
9  Ex.  64;  May  v.  Burdett,  9  Q.  B.  101;  and  Jackson  v.  Smithson,  15 
M.  &  W.  563. 

[The  question  of  the  verdict  being  against  the  evidence  was  then 
argued.]  Cur.  ado.  wU. 

June  12.  The  judgment  of  the  Court  (Kelly,  C.  B.,  Bramwell, 
and  Cleasby,  BB.)  was  read  by 

Bramwell,  B.  In  this  case  I  imderstand  the  jury  to  have  found 
that  all  reasonable  care  had  been  taken  by  the  defendant,  that  the 
banks  were  fit  for  all  events  to  be  anticipated,  and  the  weirs  broad 
enough;  that  the  storm  was  of  such  violence  as  to  be  properly  called 
the  act  of  God,  or  vis  major.  No  doubt,  as  was  said  by  Mr.  Mclntyre, 
a  shower  is  the  act  of  God  as  much  as  a  storm;  so  is  an  earthquake  in 
this  country:  yet  every  one  imderstands  that  a  storm,  supernatural  in 
one  sense,  may  properly,  like  an  earthquake  in  this  country,  be  called 
the  act  of  God,  or  vis  major.  No  doubt  not  the  act  of  God  or  a  vis 
major  in  the  sense  that  it  was  physically  impossible  to  resist  it,  but  in 
the  sense  that  it  was  practically  impossible  to  do  so.  Had  the  banks 
been  twice  as  strong,  or  if  that  would  not  do,  ten  times,  and  ten  times 
as  high,  and  the  weir  ten  times  as  wide,  the  mischief  might  not  have 
happened.  But  those  are  not  practical  conditions,  they  are  such  that 
to  enforce  them  would  prevent  the  reasonable  use  of  property  in  the 
way  most  beneficial  to  the  community. 

So  understanding  the  finding  of  the  jury,  I  am  of  opinion  the  de- 
fendant is  not  liable.  What  has  the  defendant  done  wrong  ?  What 
right  of  the  plaintiff  has  she  infringed  ?   She  has  done  nothing  wrong, 


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SECT,  in.]  NICHOLS  V.  BfAKSLAND  *       471 

she  has  infringed  no  right.  It  is  not  the  defendant  who  let  loose  the 
water  and  sent  it  to  destroy  the  bridges.  She  did  indeed  store  it,  and 
store  it  in  such  quantities  that,  if  it  was  let  loose,  it  would  do,  as  it 
did,  mischief.  But  suppose  a  stranger  let  it  loose,  would  the  defendant 
be  liable  ?  If  so,  then  if  a  mischievous  boy  bored  a  hole  in  a  cistern 
in  any  London  house,  and  the  water  did  mischief  to  a  neighbor,  the 
occupier  of  the  house  would  be  liable.  That  cannot  be.  Then  why  is 
the  defendant  liable  if  some  agent  over  which  she  has  no  control  lets 
the  water  out  ?  Mr.  Mclntjrre  contended  that  she  would  be  in  all  cases 
of  the  water  being  let  out,  whether  by  a  stranger  or  the  Queen's  ene- 
mies, or  by  natural  causes,  as  lightning  or  an  earthquake.  Why  ? 
What  is  the  difference  between  a  reservoir  and  a  stack  of  chimneys  for 
such  a  question  as  this  ?  Here  the  defendant  stored  a  lot  of  wate^  for 
her  own  purposes;  in  the  case  of  the  chimneys  some  one  has  put  a  ton 
of  bricks  fifty  feet  high  for  his  own  purposes;  both  equally  harmless 
if  they  stay  where  placed,  and  equally  mischievous  if  they  do  not.  The 
water  is  no  more  a  wild  or  savage  animal  than  the  bricks  while  at  rest, 
nor  more  so  when  in  motion :  both  have  the  same  property  of  obejring 
the  law  of  gravitation.  Could  it  be  said  that  no  one  could  have  a  stack 
of  chimneys  except  on  the  terms  of  being  liable  for  any  damage  done 
by  their  being  overthrown  by  a  hurricane  or  an  earthquake  ?  If  so, 
it  would  be  dangerous  to  have  a  tree,  for  a  wind  might  come  so  strong 
as  to  blow  it  out  of  the  ground  into  a  neighbor's  land  and  cause  it  to 
do  damage;  or  a  field  of  ripe  wheat,  which  might  be  fired  by  lightning 
and  do  mischief. 

I  admit  that  it  is  not  a  question  of  negligence.  A  man  may  use  all 
care  to  keep  the  water  in,  or  the  stack  of  chimneys  standing,  but  would 
be  liable  if  through  any  defect,  though  latent,  the  water  escaped  or 
the  bricks  fell.   But  here  the  act  is  that  of  an  agent  he  cannot  control. 

This  case  differs  wholly  from  Fletcher  v,  Rylands,  L.  R.  1  Ex.  265, 
279.  There  the  defendant  poiu^  the  water  into  the  plaintiff's  mine. 
He  did  not  know  he  was  doing  so;  but  he  did  it  as  much  as  though  he 
had  poured  it  into  an  open  channel  which  led  to  the  mine  without  his 
knowing  it.  Here  the  defendant  merely  brought  it  to  a  place  whence 
another  agent  let  it  loose.  I  am  by  no  means  sure  that  the  likeness  of 
a  wild  animal  is  exact.  I  am  by  no  means  sure  that  if  a  man  kept  a 
tiger,  and  lightning  broke  his  chain,  and  he  got  loose  and  did  mischief, 
that  the  man  who  kept  him  would  not  be  liable.  But  this  case  and  the 
case  I  put  of  the  chimneys,  are  not  cases  of  keeping  a  dangerous  beast 
for  amusement,  but  of  a  reasonable  use  of  property  in  a  way  beneficial 
to  the  community.  I  think  this  analogy  has  made  some  of  the  diffi- 
culty in  this  case.  Water  stored  in  a  reservoir  may  be  the  only  prac- 
tical mode  of  suppl3ang  a  district  and  so  adapting  it  for  habitation. 
I  refer  to  my  judgment  [3  H.  &  C.  788;  34  L.  J.  (Ex.)  181]  in  Fletcher 
V.  Rylands,  and  I  repeat  that  here  the  plaintiff  had  no  right  that  has 
been  infringed,  and  the  defendant  has  done  no  wrong.   The  plaintiff's 


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X 


472       •  NICHOLS  V.  MARSLAND  [CHAP.  III. 

right  is  to  say  to  the  defendant,  Sic  utere  tuo  vi  alienum  non  kedaa,  and 
that  the  defendant  has  done,  and  no  more. 

The  Chief  Baron  and  my  brother  Cleasby  agree  in  this  judg- 
ments'^ As  to  the  plaintiff ^s  application  for  a  new  trial  on  the  ground 
tkfll  the  finding  of  the  jury  is  against  evidence,  we  have  spoken  to 
Cockburn,  C.  J.;  he  is  not  dissatisfied  therewith,  and  we  cannot  see 
it  is  wrong.  Consequently  the  rule  will  be  absolute  to  enter  a  verdict 
for  the  defendant.  Rule  abaolvie. 

In  Court  of  Appeal. 

Cotton,  Q.  C.  {Mclrdyre,  Q.  C,  and  Coxon  with  him),  for  the  plain- 
tiff, appellant.^ 

Assuming  the  jury  to  be  right  in  finding  that  the  defendant  was  not 
guilty  of  negligence,  and  that  the  rainfall  amounted  to  vis  major,  or 
the  act  of  God,  still  the  defendant  is  liable  because  she  has,  without 
necessity  and  voluntarily  for  her  own  pleasure,  stored  on  her  premises 
an  element  which  was  liable  to  be  let  loose,  and  which,  if  let  loose, 
would  be  dangerous  to  her  neighbors.  Even  if  she  be  considered  in- 
nocent of  wrong-doing,  why  should  the  plaintiff  suffer  for  the  defend- 
ant's voluntary  act  of  turning  an  otherwise  harmless  stream  into  a 
source  of  danger  ?  But  for  the  defendant's  embankments,  the  exces- 
sive rainfall  would  have  escaped  without  doing  injury. 

Goraty  Q.  C,  and  Hughes  {Dunn  with  them),  for  defendant,  cited 
Carstairs  v.  Taylor,  L.  R.  6  Ex.  217;  McCoy  v.  Danbey,  20  Penn. 
State,  85;  Tennent  v.  Earl  of  Glasgow,  1  Court  of  Session  Cases,  3d 
series,  133. 

The  judgment  of  the  Court  (Cockburn,  C.  J.,  James,  and  Mel- 
LiSH,  L.  JJ.,  and  Baggallay,  J.  A.)  was  read  by 

Mellish,  L.  J.  This  was  an  action  brought  by  the  county  surveyor 
[under  43  Geo.  3,  c.  59,  s.  4]  of  the  County  of  Chester  against  the  de- 
fendant to  recover  damages  on  account  of  the  destruction  of  four 
county,  bridges  which  had  been  carried  away  by  the  bursting  of  some 
reservoirs.  At  the  trial  before  Cockburn,  C.  J.,  it  appeared  that  the 
defendant  was  the  owner  of  a  series  of  artificial  ornamental  lakes, 
which  had  existed  for  a  great  number  of  years,  and  had  never,  previous 
to  the  18th  day  of  June,  1872,  caused  any  damage.  On  that  day,  how- 
ever, after  a  most  unusual  fall  of  rain,  the  lakes  overflowed,  the  dams 
at  their  end  gave  way,  and  the  water  out  of  the  lakes  carried  away  the 
county  bridges  lower  down  the  stream.  The  jury  found  that  there  was 
no  negligence  either  in  the  construction  or  the  maintenance  of  the 
reservoirs,  but  that  if  the  flood  could  have  been  anticipated,  the  effect 
might  have  been  prevented.'    Upon  this  finding  the  Lord  Chief  Jus- 

^  Argument  abridged. 

*  The  judgment  of  the  Court  belowj  read  by  Bramwell.  B.,  states  the  finding 
thus:  ''  In  this  case  I  understand  the  jury  to  have  found  tnat  all  reasonable  care 
had  been  taken  by  the  defendant,  that  the  banks  were  fit  for  all  events  to  be  an- 
ticipated, and  the  weirs  broad  enough;  that  the  storm  was  of  such  violence  as  to 
be  properly  called  the  act  of  God,  or  via  majoTj^ 


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SECT,  m.]  NICHOLS  V.  MARSLAND  473 

tice,  acting  on  the  decision  in  Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330, 
as  the  nearest  authority  applicable  to  the  case,  directed  a  verdict  for 
the  plaintiflF,  but  gave  leave  to  move  to  enter  a  verdict  for  the  defend- 
ant. The  Court  of  Exchequer  have  ordered  the  verdict  to  be  entered 
for  the  defendant,  and  from  their  decision  an  appeal  has  been  brought 
before  us. 

The  appellant  relied  upon  the  decision  in  the  case  of  Rylands  v. 
Fletcher,  supra.  In  that  case  the  rule  of  law  on  which  the  case  was 
decided  was  thus  laid  down  by  Mr.  Justice  Blackburn  in  the  Excheq- 
uer Chamber  [L.  R.  1  Ex.  279]:  "  We  think  the  true  rule  of  law  is 
that  the  person  who  for  his  own  purposes  brings  on  his  lands  and  col- 
lects and  keeps  there  anything  likely  to  do  mischief  if  it  escapes,  must 
keep  it  in  at  his  peril,  and  if  he  does  not  do  so,  is  prima  facie  answerable 
for  all  the  damage  which  is  the  natural  consequence  of  its  escape.  He 
can  excuse  himself  by  showing  that  the  escape  was  owing  to  the  plain- 
tiff's default;  or  perhaps  that  the  escape  was  the  consequence  of  vis 
major  J  or  the  act  of  God;  but  as  nothing  of  the  sort  exists  here  it  is 
imnecessary  to  inquire  what  excuse  would  be  sufficient.''  It  appears 
to  us  that  we  have  two  questions  to  consider:  First,  the  question  of 
law,  which  was  left  imdecided  in  Rylands  v.  Fletcher,  supra^  —  Can 
the  defendant  excuse  herself  by  showing  that  the  escape  of  the  water 
was  owing  to  vis  major,  or,  as  it  is  termed  in  the  law  books,  the  "  act  of 
God  ?  "  And,  secondly,  if  she  can,  did  she  in  fact  make  out  that  the 
escape  was  so  occasioned  ? 

Now,  with  respect  to  the  first  question,  the  ordinary  rule  of  law  is 
that  when  the  law  creates  a  duty  and  the  party  is  disabled  from  per- 
forming it  without  any  default  of  his  own,  by  the  act  of  God,  or  the 
King's  enemies,  the  law  will  excuse  him;  but  when  a  party  by  his  own 
contract  creates  a  duty,  he  is  bound  to  make  it  good  notwithstanding 
any  accident  by  inevitable  necessity.  We  can  see  no  good  reason  why 
that  rule  should  not  be  applied  to  the  case  before  us.  The  duty  of 
keeping  the  water  in  and  preventing  its  escape  is  a  duty  imposed  by 
the  law,  and  not  one  created  by  contract.  If,  indeed,  the  making  a 
reservoir  was  a  wrongful  act  in  itself,  it  might  be  right  to  hold  that  a 
person  could  not  escape  from  the  consequences  of  his  own  wrongful 
act.  But  it  seems  to  us  absurd  to  hold  that  the  making  or  the  keeping 
a  reservoir  is  a  wrongful  act  in  itself.  The  wrongful  act  is  not  the  mak- 
ing or  keeping  the  reservoir,  but  the  allowing  or  causing  the  water  to 
escape.  If,  indeed,  the  damages  were  occasioned  by  the  act  of  the 
party  without  more  —  as  where  a  man  acciunulates  water  on  his  own 
land,  but,  owing  to  the  peculiar  nature  or  condition  of  the  soil,  the 
water  escapes  and  does  damage  to  his  neighbor  —  the  case  of  Rylands 
V.  Fletcher,  supra^  establishes  that  he  must  be  held  liable.  The  ac- 
cumulation of  water  in  a  reservoir  is  not  in  itself  wrongful;  but  the 
making  it  and  suffering  the  water  to  escape,  if  damage  ensue,  consti- 
tute a  wrong.   But  the  present  case  is  distinguished  from  that  of  Ry- 


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474  NICHOLS  V.  MARSLAND  [CHAP.  HI. 

lands  V.  Fletcher,  supra,  in  this,  that  it  is  not  the  act  of  the  defendant 
in  keeping  this  reservoir,  an  act  in  itself  lawful,  which  alone  leads  to 
the  escape  of  the  water,  and  so  renders  wrongful  that  which  but  for 
such  escape  would  have  been  lawful.  It  is  the  supervening  vis  major 
of  the  water  caused  by  the  flood,  which,  superadded  to  the  water  in  the 
reservoir  (which  of  itself  would  have  been  innocuous),  caiises  the  dis- 
aster. A  defendant  cannot,  in  our  opinion,  be  properly  said  to  have 
caused  or  allowed  the  water  to  escape,  if  the  act  of  God  or  the  Queen^s 
enemies  was  the  real  cause  of  its  escaping  without  any  fault  on  the 
part  of  the  defendant.  If  a  reservoir  was  destroyed  by  an  earthquake, 
or  the  Queen's  enemies  destroyed  it  in  conducting  some  warlike  opera- 
tion, it  would  be  contrary  to  all  reason  and  justice  to  hold  the  owner 
of  the  reservoir  liable  for  any  damage  that  might  be  done  by  the  escape 
of  the  water.  We  are  of  opinion,  therefore,  that  the  defendant  was  en- 
titled to  excuse  herself  by  proving  that  the  water  escaped  through  the 
act  of  God. 

The  remaining  question  is,  did  the  defendant  make  out  that  the  es- 
cape of  the  water  was  owing  to  the  act  of  God  ?  Now  the  jury  have 
distinctly  foimd,  not  only  that  there  was  no  n^ligence  in  the  construc- 
tion or  the  maintenance  of  the  reservoirs,  but  that  the  flood  was  so 
great  that  it  could  not  reasonably  have  been  anticipated,  although,  if 
it  had  been  anticipated,  the  effect  might  have  been  prevented;  and 
this  seems  to  us  in  substance  a  finding  that  the  escape  of  the  water  was 
owing  to  the  act  of  God.  However  great  the  flood  had  been,  if  it  had 
not  been  greater  than  floods  that  had  happened  before  and  might  be 
expected  to  occur  again,  the  defendant  might  not  have  made  out  that 
she  was  free  from  fault;  but  we  think  she  ought  not  to  be  held  liable 
because  she  did  not  prevent  the  effect  of  an  extraordinary  act  of 
nature,  which  she  could  not  anticipate.  In  the  late  case  of  Nugent  v. 
Smith,  1  C.  P.  D.  423,  we  held  that  a  carrier  might  be  protected  from 
liability  for  a  loss  occasioned  by  the  act  of  God,  if  the  loss  by  no  rea- 
sonable precaution  could  be  prevented,  although  it  was  not  absolutely 
impossible  to  prevent  it. 

It  was  indeed  ingeniously  argued  for  the  appellant  that  at  any  rate 
the  escape  of  the  water  was  not  owing  solely  to  the  act  of  God,  because 
the  weight  of  the  water  originally  in  the  reservoirs  must  have  con- 
tributed to  break  down  the  dams,  as  well  as  the  extraordinary  water 
brought  in  by  the  flood.  We  think,  however,  that  the  extraordinary 
quantity  of  water  brought  in  by  the  flood  is  in  point  of  law  the  sole 
proximate  cause  of  the  escape  of  the  water.  It  is  the  last  drop  which 
makes  the  cup  overflow. 

On  the  whole  we  are  of  opinion  that  the  judgment  of  the  Court  of 
Exchequer  ought  to  be  aflarmed.  Judgment  affirmed.^ 

1  See  Salmond,  Torts  (4  ed.)  }  65. 


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SECT.  III.]  BOX  V.  JUBB  475 

BOX  V.  JUBB 

In  the  Exchequer  Division,  FEBRUAav  25, 1879. 

Reported  in  Law  ReportSf  4  Exchequer  Dwieionf  76. 

Case  stated  in  an  action  brought  in  the  County  Court  of  Yorkshire, 
holden  at  Bradford,  to  recover  damages  by  reason  of  the  overflowing 
of  a  reservoir  of  the  defendants. 

1.  The  defendants  are  the  owners  and  occupiers  of  a  woollen  cloth- 
mill  situate  at  Batley,  in  the  coimty  of  York,  and  for  the  necessary 
supply  of  water  to  the  mill  is  a  reservoir,  also  belonging  to  the  defend- 
ants. Such  mill  and  reservoir  have  been  built,  and  constructed,  and 
used,  as  at  the  time  of  the  overflowing  of  the  reservoir  hereinafter  men- 
tioned, for  many  years. 

2.  The  plaintiflF  is  the  tenant  of  premises  adjoining  the  reservoir. 

3.  The  reservoir  is  supplied  with  water  from  a  main  drain  or  water- 
comw.  The  surplus  water  from  the  reservoir  passes  through  an  outlet 
into  the  main  drain  or  watercourse.  The  inlet  and  outlet  are  furnished 
with  proper  doors  or  sluices,  so  as  (when  required)  to  close  the  com- 
munications between  the  reservoir  and  the  main  drain  or  watercourse. 

4.  The  whole  of  the  premises  are  within  the  borough  of  Batley,  and 
the  defendants  have  the  right  to  use  the  main  drain  or  watercourse  by 
obtaining  a  supply  of  water  therefrom  and  discharging  their  surplus 
water  thereinto,  as  hereinbefore  stated,  but  have  otherwise  no  control 
over  the  drain  or  watercourse,  which  does  not  belong  to  them. 

5.  In  the  month  of  December,  1877,  the  plaintiff's  premises  were 
flooded  by  reason  of  the  overflowing  of  the  defendants'  reservoir. 

6.  Such  overflowing  was  caused  by  the  emptying  of  a  large  quantity 
of  water  from  a  reservoir,  the  property  of  a  third  party,  into  the  main 
drain  or  watercourse  at  a  point  considerably  above  the  defendants' 
premises,  and  by  an  obstruction  in  the  main  drain  or  watercourse 
below  the  outlet  of  the  defendants'  reservoir,  whereby  the  water  from 
such  main  drain  or  watercourse  was  forcied  through  the  doors  or  sluices 
(which  were  closed  at  the  time)  into  the  defendants'  reservoir. 

7.  Such  obstruction  was  caused  by  circumstances  over  which  the 
defendants  had  no  control,  and  without  their  knowledge;  and  had  it 
not  been  for  such  obstruction  the  overflowing  of  the  reservoir  would 
not  have  happened. 

8.  The  defendants'  reservoir,  and  the  communications  between  it 
and  the  main  drain  or  watercourse,  and  the  doors  or  sluices,  are  con- 
structed and  maintained  in  a  proper  manner,  so  as  to  prevent  the  over- 
flowing of  the  reservoir  under  all  ordinary  circiunstances. 

9.  No  negligence  or  wrongful  act  is  attributable  to  either  party. 

Under  the  circumstances  the  judge  of  the  Coimty  Court  was  of  opin- 
ion that  the  defendants  were  liable  for  the  damage  sustained  by  the 
plaintiff,  and  accordingly  gave  judgment  for  the  plaintiff. 


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7^ 


476  BOX  V.  JUBB  [CHAP.  III. 

The  question  for  the  opinion  of  the  Court,  having  regard  to  the 
facts  set  out  in  the  case,  was  whether  the  defendants  were  liable  for 
the  damage  sustained  by  the  plaintiff  by  reason  of  the  flooding  of  his 
premises,  such  flooding  being  caused  by  water  from  a  reservoir  belong- 
ing to  a  third  party,  over  which  the  defendants  had  no  control,  and 
without  any  knowledge  or  negligence  on  defendants'  part,  the  over- 
flowing of  the  defendants'  reservoir  being  occasioned  by  the  act  of  a 
third  party,  over  whom  the  defendants  had  no  control,  and  no  wrong- 
ful act  or  negligence  being  attributable  to  the  defendants,  and  the 
direct  cause  of  the  damage  being  the  obstruction  in  the  main  drain  or 
watercourse,  which  was  caused  by  circumstances  over  which  the 
defendants  had  no  control  and  without  their  knowledge.^ 

Kelly,  C.  B.  I  think  this  judgment  must  be  reversed.  The  case 
states  that  for  many  years  the  defendants  have  been  possessed  of  a 
reservoir  to  which  there  are  gates  or  sluices.  There  has  been  an  over- 
flow from  the  reservoir  which  has  caused  damage  to  the  plaintiff.  The 
question  is,  what  was  the  cause  of  this  overflow  ?  Was  it  anything  for 
which  the  defendants  are  responsible  —  did  it  proceed  from  their  act 
or  default,  or  from  that  of  a  stranger  over  which  they  had  no  control  ? 
The  case  is  abundantly  clear  on  this,  proving  beyond  a  doubt  that  the 
defendants  had  no  control  over  the  causes  of  the  overflow,  and  no 
knowledge  of  the  existence  of  the  obstruction.  The  matters  com- 
plained of  took  place  through  no  default  or  breach  of  duty  of  the 
defendants,  but  were  caused  by  a  stranger  over  whom  and  at  a  spot 
where  they  had  no  control.  It  seems  to  me  to  be  inmiaterial  whether 
this  is  called  vis  major  or  the  unlawful  act  of  a  stranger;  it  is  sufficient 
to  say  that  the  defendants  had  no  means  of  preventing  the  occurrence. 
I  think  the  defendants  could  not  possibly  have  been  expected  to  antici- 
pate that  which  happened  here,  and  the  law  does  not  require  them  to 
construct  their  reservoir  and  the  sluices  and  gates  leading  to  it  to  meet 
any  amount  of  pressure  which  the  wrongful  act  of  a  third  person  may 
impose.    The  judgment  must  be  entered  for  the  defendants. 

Pollock,  B.  I  also  think  the  defendants  are  entitled  to  judgment. 
Looking  at  the  facts  stated,  that  the  defendants  had  no  control  over 
the  main  drain,  and  no  knowledge  of  or  control  over  the  obstruction, 
apart  from  the  cases,  what  wrong  have  the  defendants  done  for  which 
they  should  be  held  liable  ?  The  case  of  Rylands  v.  Retcher,  L.  R.  3 
H.  L.  330,  is  quite  distinguishable.  The  case  of  Nichols  v.  Marsland, 
L.  R.  10  Ex.  255,  14  Eng.  R.  538,  is  more  in  point.  The  illustrations 
put  in  that  case  clearly  go  to  show  that  if  the  person  who  has  collected 
the  water  has  done  all  that  skill  and  judgment  can  do  he  is  not  liable 
for  damage  by  acts  over  which  he  has  no  control.  In  the  judgment  of 
the  Court  of  Appeals,  2  Ex.  D.  1,  at  p.  5,  Mellish,  L.  J.,  adopts  the 
principle  laid  down  by  this  Court.  He  says:  "  If  indeed  the  damages 
were  occasioned  by  the  act  of  the  party  without  more  —  as  where  a 

*  Arguments  omitted. 


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SECT.  III.]  MARSHALL  V.  WELWOOD  477 

man  accumulates  water  on  his  own  land,  but  owing  to  the  peculiar 
nature  or  condition  of  the  soil  the  water  escapes  and  does  damage  to 
his  neighbor —  the  case  of  Rylands  v.  Retcher,  supra,  establishes 
that  he  must  be  held  liable."  Here  this  water  has  not  been  accumu- 
lated by  the  defendants,  but  has  come  from  elsewhere  and  added  to 
that  which  was  properly  and  safely  there.  For  this  the  defendants,  in 
my  opinion,  boli  on  principle  and  authority,  cannot  be  held  liable. 

Judgment  for  the  defendants.^ 


MARSHALL  v.  WELWOOD 

Supreme  Court  op  New  Jersey,  June  Term,  1876. 

Reported  in  38  New  Jersey  Law  Reports,  339. 

Suit  for  damages  done  to  the  property  of  the  plaintiflF  by  the  burst- 
ing of  the  boiler  of  a  steam-engine  on  the  adjoining  property  of  the 
defendant  Welwood.  Garside,  the  other  defendant,  had  sold  this  boiler 
to  Welwood,  and  was  experimenting  with  it  at  the  time  of  the  explosion. 

The  case  came  before  the  Court  on  a  motion  for  a  new  trial,  the 
verdict  having  gone  for  the  plaintiff  against  both  defendants. 

Argued  at  February  Term,  1876,  before  Beasley,  C.  J.,  and  Wood- 
hull,  Van  Syckel,  and  Scudder,  JJ. 

The  opinion  of  the  Court  was  delivered  by 

Beasley,  C.  J.  The  judge,  at  the  trial  of  this  cause,  charged, 
among  other  matters,  that  as  the  evidence  incontestably  showed  that 
one  of  the  defendants.  Welwood,  was  the  owner  of  the  boiler  which 
caused  the  damage,  he  was  liable  in  the  action,  unless  it  appeared  that 
the  same  was  not  being  run  by  him,  or  his  agent,  at  the  time  of  the 
explosion.  The  proposition  propoimded  was,  that  a  person  is  respon- 
sible for  the  immediate  consequences  of  the  bursting  of  a  steam  boiler, 
in  use  by  him,  irrespective  of  any  question  as  to  negligence  or  want  of 
skill  on  his  part. 

This  view  of  the  law  is  in  accordance  with  the  principles  maintained, 
with  great  learnmg  and  force  of  reasoning,  in  some  of  the  late  English 
decisions.  In  this  class  the  leadmg  case  was  that  of  Fletcher  v.  Ry- 
lands, L.  R.  1  Exch.  265,  which  was  a  suit  on  account  of  damage  done 
by  water  escaping  on  to  the  premises  of  the  plaintiff  from  a  reservoir 
which  the  defendant  had  constructed,  with  due  care  and  skill,  on  his 
own  land.  The  judgment  was  put  on  a  general  ground,  for  the  Court 
said:  "  We  think  the  true  rule  of  law  is,  that  the  person  who,  for  his 
own  purposes,  brings  on  his  lands  and  collects  and  keeps  there  any- 
thing likely  to  do  mischief,  if  it  escapes,  must  keep  it  in  at  his  peril, 
and  if  he  does  not  do  so,  is  prima  facie  answerable  for  all  the  damage 

1  See  Caretaire  v.  Taylor,  L.  R.  6  Ex.  217;  Wilson  v,  Newberry,  L.  R.  7  Q.  B. 
31;  Rickards  v,  Lothian,  [1913]  A.  C.  263. 


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478  MARSHALL  V.  WELWOOD  [CHAP.  IH, 

which  is  the  natural  consequence  of  its  escape."  This  result  was 
deemed  just,  and  was  sought  to  be  vindicated  on  the  theory  that  it  is 
but  reasonable  that  a  person  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  mischie- 
vous, 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.  This  principle  would  evidently  apply  to,  and  rule,  the  pres- 
ent case :  for  water  is  no  more  likely  to  escape  from  a  reservoir  and  do 
damage,  than  steam  is  from  a  boiler;  and,  therefore,  if  he  who  col- 
lects the  former  force  upon  his  property,  and  seeks,  with  care  and 
skill,  to  keep  it  there,  is  answerable  for  his  want  of  success,  so  is  he 
who,  imder  similar  conditions,  endeavors  to  deal  with  the  latter. 
There  is  nothing  imlawful  in  introducing  water  into  a  properly  con- 
structed reservoir  on  a  person's  own  land,  nor  raising  steam  in  a  boiler 
of  proper  quality;  neither  act,  when  performed,  is  a  nuisance  per  se; 
and  the  inquiry  consequently  is,  whetiier  in  the  doing  of  such  lawful 
act  the  party  who  does  it  is  an  insurer  against  all  flaws  in  the  apparatus 
employed,  no  matter  how  secret,  or  unascertainable  by  the  use  of 
every  reasonable  test,  such  flaws  may  be.  This  English  adjudication 
takes  the  affirmative  side  of  the  question,  conceding,  however,  that  the 
subject  is  not  controlled  by  any  express  decision,  and  that  it  is  to  be  in- 
vestigated with  reference  to  the  general  grounds  of  jurisprudence.  I 
have  said  the  doctrine  involved  has  been  learnedly  treated,  and  the 
decision  is  of  great  weight,  and  yet  its  reasoning  has  failed  to  convince 
me  of  the  correctness  of  the  result  to  which  it  leads,  and  such  result  is 
clearly  opposed  to  the  course  which  judicial  opinion  has  taken  in  this 
coimtry.  The  fallacy  in  the  process  of  argument  by  which  judgment 
is  reached  in  this  case  of  Fletcher  v.  Rylands,  appears  to  me  to  consist 
in  this:  that  the  rule  mainly  applicable  to  a  class  of  cases  which,  I 
think,  should  be  regarded  as,  in  a  great  degree,  exceptional,  is  ampli- 
fied and  extended  into  a  general,  if  not  universal,  principle.  The 
principal  instance  upon  which  reliance  is  placed  is  the  well-known 
obligation  of  the  owner  of  cattle,  to  prevent  them  from  escaping  from 
his  land  and  doing  mischief.  The  law  as  to  this  point  is  perfectly 
settled,  and  has  been  settled  from  the  earUest  times,  and  is  to  the  effect 
that  the  owner  must  take  charge  of  his  cattle  at  his  peril,  and  if  they 
evade  his  custody  he  is,  in  some  measure,  responsible  for  the  conse- 
quences. This  is  the  doctrine  of  the  Year  Books,  but  I  do  not  find 
that  it  is  grounded  in  any  theoretical  principle,  making  a  man  answer- 
able for  his  acts  or  omissions,  without  regard  to  his  culpability.  That 
in  this  particular  case  of  escaping  cattle  so  stringent  an  obligation 
upon  the  owner  should  grow  up,  was  not  unnatural.  That  the  beasts 
of  the  landowner  should  be  successfully  restrained,  was  a  condition  of 
oonsiderable  importance  to  the  immolested  enjoyment  of  property, 
and  the  right  to  plead  that  the  escape  bad  occurred  by  inevitable 


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SECT.  III.]  MARSHALL  V.  WELWOOD  479 

accident  would  have  seriously  impaired,  if  it  did  not  entirely  frustrate, 
the  process  of  distress  damage  feasant.  Custom  has  had  much  to  do  in 
giving  shape  to  the  law,  and  what  is  highly  convenient  readily  runs 
into  usage,  and  is  accepted  as  a  rule.  It  would  but  rarely  occur  that 
cattle  would  escape  from  a  vigilant  owner,  and  in  this  instance  such 
rare  exceptions  seem  to  have  passed  umioticed,  for  there  appears  to  be 
no  example  of  the  point  having  been  presented  for  judicial  considera- 
tion; for  the  conclusion  of  the  liability  of  the  unnegligent  owner  rests 
in  dicta,  and  not  in  express  decision.  But  waiving  this,  there  is  a  con- 
sideration which  seems  to  me  to  show  that  this  obligation  which  is  put 
upon  the  owner  of  errant  cattle  should  not  be  taken  to  be  a  principle 
applicable,  in  a  general  way,  to  the  use  or  ownership  of  property, 
which  is  this:  that  the  owner  of  such  cattle  is,  after  all,  liable  only  sub 
modo  for  the  injury  done  by  them,  that  is,  he  is  responsible,  with  regard 
to  tame  beasts  who  have  no  exceptionally  vicious  disposition  so  far  as 
is  known,  for  the  grass  they  eat,  and  such  like  injuries,  but  not  for  the 
hurt  they  may  inflict  upon  the  person  of  others,  —  a  restriction  on 
liability  which  is  hardly  consistent  with  the  notion  that  this  class  of 
cases  proceeds  from  a  principle  so  wide  as  to  embrace  all  persons  whose 
lawful  acts  produce,  without  fault  in  them,  and  in  an  indirect  manner, 
ill  results  which  disastrously  affect  innocent  persons.  If  the  principle 
ruling  these  cases  was  so  broad  as  this,  conformity  to  it  would  require 
that  the  person  being  the  cause  of  the  mischief  should  stand  as  an  in- 
demnifier  against  the  whole  of  the  damage.  It  appears  to  me,  there- 
fore, that  this  rule,  which  applies  to  damage  done  by  straying  cattle, 
was  carried  beyond  its  true  bounds,  when  it  was  appealed  to  [in]  proof 
that  a  person  in  law  is  answerable  for  the  natural  consequences  of  his 
acts,  such  acts  being  lawful  in  themselves,  and  having  b^n  done  with 
proper  care  and  skill. 

The  only  other  cases  which  were  referred  to  in  support  of  the  judg- 
ment under  consideration  were  those  of  one  who  was  sued  for  not 
keeping  the  wall  of  his  privy  in  repair,  to  the  detriment  of  his  neigh- 
bor, being  the  case  of  Tenant  v,  Goulding,  1  Salk.  21,  and  several 
actions  which  it  is  said  had  been  brought  against  the  owners  of  some 
alkaU  works  for  damages  alleged  to  have  been  caused  by  the  chlorine 
fimies  escaping  from  their  works  [which],  the  case  showed,  had  been 
erected  upon  the  best  scientific  principles.  But  I  am  compelled  to 
think  that  these  cases  are  but  a  slender  basis  for  the  large  structure 
put  upon  it.  The  case  of  Tenant  v.  Goulding  presented  merely  the 
question  whether  a  landowner  is  bound  in  favor  of  his  neighbor  to 
keep  the  wall  of  his  privy  in  repair,  and  the  Court  held  that  he  was, 
and  that  he  was  responsible  if,  for  want  of  such  reparation,  the  filth 
escaped  on  the  adjoining  land.  No  question  was  mooted  as  to  his 
liability  in  case  the  privy  had  been  constructed  with  care  and  skiU 
with  a  view  to  prevent  the  escape  of  its  contents,  and  had  been  kept 
in  a  state  of  repair.   Not  to  repair  a  receptacle  of  this  kind  when  it  was 


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480  MARSHALL  V.  WELWOOD  [CHAP.  IH, 

in  want  of  repairs  was,  in  itself,  a  prima  facie  case  of  negligence,  and 
it  seems  to  me  that  all  the  Court  decided  was  to  hold  so. 
•  But  this  consideration  is  also  to  be  noticed,  both  with  respect  to  this 
last  case,  and  that  of  the  injurious  fumes  from  the  alkali  works,  that 
in  truth  they  stand  somewhat  by  themselves,  and  having  this  peculiar- 
ity:  that  the  things  in  their  nature  partake  largely  of  the  character  of 
nuisances.  Take  the  alkali  works  as  an  example.  Placed  in  a  town, 
under  ordinary  circumstances,  they  would  be  a  nuisance.  When  the 
attempt  is  made  by  scientific  methods  to  prevent  the  escape  of  the 
fumes,  it  is  an  attempt  to  legalize  that  which  is  illegal,  and  the  con- 
sequence is,  it  may  well  be  held  that,  failing  in  the  attempt,  the 
nuisance  remains. 

I  cannot  agree  that,  from  these  indications,  the  broad  doctrine  is  to 
be  drawn  that  a  man  in  law  is  an  insurer  that  the  acts  which  he  does, 
such  acts  being  lawful  and  done  with  care,  shall  not  injuriously  affect 
others.  The  decisions  cited  are  not  so  much  examples  of  legal  maxima 
as  of  exceptions  to  such  maxims;  for  they  stand  opposed,  and  in  con- 
trast to  principles,  which  it  seems  to  me  must  be  considered  much  more 
general  in  their  operation  and  elementary  in  their  nature. 

The  common  rule,  quite  institutional  in  its  character,  is  that,  in 
order  to  sustain  an  action  for  a  tort,  the  damage  complained  of  must 
have  come  from  a  wrongful  act.  Mr.  Addison,  in  his  work  on  Torts, 
Vol.  I,  p.  3,  very  correctly  states  this  rule.  He  says:  "  A  man  may, 
however,  sustain  grievous  damage  at  the  hands  of  another,  and  yet,  if 
it  be  the  result  of  inevitable  accident,  or  a  lawful  act,  done  in  a  lawful 
manner,  without  any  carelessness  or  negligence,  there  is  no  legal  in- 
jury, and  no  tort  giving  rise  to  an  action  of  damages."  Among  other 
examples,  he  refers  to  an  act  of  force,  done  in  necessary  self-defence, 
causing  injury  to  an  innocent  bystander,  which  he  characterizes  as 
damnum  sine  injuria^  —  "  for  no  man  does  wrong  or  contracts  guilt  in 
defending  himself  against  an  aggressor."  Other  instances  of  a  like 
kind  are  noted,  such  as  the  lawful  obstruction  of  the  view  from  the 
windows  of  dwelling-houses;  or  the  turning  aside,  to  the  detriment  of 
another,  the  current  of  the  sea  or  river,  by  means  of  walls  or  dikes. 
Many  illustrations,  of  the  same  bearing,  are  to  be  found  scattered 
through  the  books  of  reports.  Thus,  Dyer,  25  b,  says:  "  That  if  a 
man  have  a  dog  which  has  killed  sheep,  the  master  of  the  dog  being 
ignorant  of  such  quality  and  property  of  the  dog,  the  master  shall  not 
be  punished  for  that  killing."  This  case  belongs  to  a  numerous,  well- 
known  class,  where  animals  which  are  usually  harmless  do  damage,  the 
decisions  being  that,  under  such  conditions,  the  owners  of  the  animals 
are  not  responsible.  Akin  to  these  in  principle  are  cases  of  injuries 
done  to  innocent  persons  by  horses  in  the  charge  of  their  owners,  be- 
coming ungovernable  by  reason  of  xmexpected  causes;  or  where  a 
person  in  a  dock  was  struck  by  the  falling  of  a  bale  of  cotton  which  the 
defendants'  servants  were  lowering,  Scott  t;.  London  Dock  Co.,  3  H.  & 


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SECT.  III.]  MARSHALL  V.  WELWOOD  481 

C.  596;  or  in  cases  of  collision,  either  on  land  or  sea.    Hammack  v. 
White,  11  C.  B.  n.  s.  588. 

It  is  true  that  these  cases  of  injury  done  to  personal  property,  or  to 
persons,  are,  in  the  case  of  Fletcher  v.  Rylands,  sought  to  be  distin- 
guished from  other  damages,  on  the  ground  that  they  are  done  in  the 
course  of  traffic  on  the  highways,  whether  by  land  or  sea,  which  cannot 
be  conducted  without  exposing  those  whose  persons  or  property  arc 
near  it  to  some  inevitable  risk.  But  this  explanation  is  not  sufficiently 
comprehensive,  for,  if  a  frightened  horse  should,  in  his  ffight,  break 
into  an  inclosing,  no  matter  how  far  removed  from  the  highway,  the 
owner  would  not  be  answerable  for  the  damage  done.  Nor  is  the  rea- 
son upon  which  it  rests  satisfactory,  for,  if  traffic  cannot  be  carried  on 
without  some  risk,  why  can  it  not  be  said  with  the  same  truth,  that  the 
other  affairs  of  life,  though  they  be  transacted  away  from  the  high- 
ways, cannot  be  carried  on  without  some  risk;  and  if  such  risk  is,  in 
the  one  case,  to  be  borne  by  innocent  persons,  why  not  in  the  other  ? 
Business  done  upon  private  property  nmy  be  a  part  of  traffic  as  well  as 
that  done  by  the  means  of  the  highway,  and  no  reason  is  perceived  why 
the  same  favor  is  not  to  be  extended  to  it  in  both  situations.  But, 
besides  this,  the  reason  thus  assigned  for  the  immimity  of  him  who  is 
the  imwiUing  producer  of  the  damage  has  not  been  the  ground  on 
which  the  decisions  illustrative  of  the  rule  have  been  put;  that  ground 
has  been  that  the  person  sought  to  be  charged  had  not  done  any  un- 
lawful act.  Everywhere,  in  all  the  branches  of  the  law,  the  general 
principle  that  blame  must  be  imputable  as  a  ground  of  responsibility 
for  damage  proceeding  from  a  lawful  act,  is  apparent.  A  passenger  is 
injured  by  the  breaking  of  an  axle  of  a  public  conveyance;  the  carrier 
is  not  liable,  unless  negligence  can  be  shown.  A  man's  guest  is  hurt  by 
the  falling  of  a  chandeUer;  a  suit  will  not  lie  against  the  host,  without 
proof  that  he  knew,  or  ought  to  have  known  of  the  existence  of  the 
danger.  If  the  steam-engine  which  did  the  mischief  in  the  present 
case  had  been  in  use  in  driving  a  train  of  cars  on  a  railroad,  and  had, 
in  that  situation,  exploded,  and  had  infficted  injuries  on  travellers  or 
bystanders,  it  could  not  have  been  pretended  that  such  damage  was 
actionable,  in  the  absence  of  the  element  of  negUgence  or  im&kilful- 
ness.  By  changing  the  place  of  the  accident  to  private  property,  I 
cannot  agree  that  a  different  rule  obtains. 

.  It  seems  to  me,  therefore,  that  in  this  case  it  was  necessary  to  sub- 
mit the  matter,  as  a  question  of  fact  for  the  jury,  whether  the  occur- 
rence doing  the  damage  complained  of,  was  the  product  of  pure 
accident,  or  the  result  of  want  of  care  or  skill  on  the  part  of  the  de- 
fendant or  his  agents. 

This  view  of  the  subject  is  taken  in  the  American  decisions.  A 
case,  in  all  respects  in  point,  is  that  of  Losee  v.  Buchanan,  51  N.  Y. 
476;  8.  c.  10  Am.  Rep.  623.  The  facts  were  essentially  the  same 
with  those  of  the  principal  case.    It  was  an  action  growing  out  of 


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482  BROWN  V.  COLLINS  [CHAP.  III. 

the  explosion  of  a  steam  boDer  upon  private  property,  and  the  ruling 
was  that  such  action  could  not  be  sustained  without  proof  of  fault  or 
negligence.  In  that  report  the  line  of  cases  is  so  fully  set  out  that  it 
is  unnecessary  here  to  repeat  them. 

Ttie  nde  should  he  made  abaoliUe.^ 


BROWN  V.  COLLINS 

Supreme  Court,  New  Hampshire,  June,  1873. 

Reported  in  53  New  Hampshire  Reports^  442. 

Trespass,  by  Albert  H.  Brown  against  Lester  Collins,  to  recover 
the  value  of  a  stone  post  on  which  was  a  street  lamp,  situated  in  front 
of  his  place  of  business  in  the  village  of  Tilton.  The  post  stood  upon 
the  plaintiff's  land,  but  near  the  southerly  line  of  the  main  highway 
leading  through  the  village  and  within  four  feet  of  said  line.  There 
was  nothing  to  indicate  the  line  of  the  highway,  nor  any  fence  or 
other  obstruction  between  the  highway,  as  travelled,  and  the  post. 
The  highway  crosses  the  railroad  near  the  place  of  accident,  and  the 
stone  post  stood  about  fifty  feet  from  the  railroad  track  at  the  crossing. 
The  defendant  was  in  the  highway,  at  or  near  the  railroad  crossing, 
with  a  pair  of  horses  loaded  with  grain,  going  to  the  grist-mill  in  Til- 
ton  village.  The  horses  becan.e  frightened  by  an  engine  on  the  rail- 
road near  the  crossing,  and  by  reason  thereof  became  unmanageable, 
and  ran,  striking  the  post  with  the  end  of  the  pole  and  breaking  it  off 
near  the  ground,  destroying  the  lamp  with  the  post.  No  other  injury 
was  done  by  the  accident.  The  shock  produced  by  the  collision  with 
the  post  threw  the  defendant  from  his  seat  in  the  wagon,  and  he  struck 
on  the  ground  between  the  horses,  but  suffered  no  injury  except  a 
slight  concussion.  The  defendant  was  in  the  use  of  ordinary  care  and 
skill  in  managing  his  team,  until  they  became  frightened  as  afore^d. 

The  foregoing  facts  were  agreed  upon  for  the  purpose  of  raising  the 
question  of  the  right  of  the  plaintiff  to  recover  in  this  action. 

1  Actiesselskabet  Ingrid  v.  Central  R.  Co.,  (C.  C.  A.)  216  Fed.  72  (explosives); 
Judson  V.  Giant  Powder  Co.,  107  Cal.  549  (explosives):  Lake  Shore  K.  Co.  v. 
Chicago  R.  Co.,  48  Ind.  App.  684  (semble) ;  Owensboro  v,  Knox,  116  Ky.  451  (elec- 
tricity) ;  Murphy  v.  Gillum,  73  Mo.  App.  478  (semble);  Losee  v.  Buchajian,  51 
N.  Y.  476  (boiler);  CosuUch  v.  Standard  Oil  Co.,  122  N.  Y.  118  (petroleum);  Huff 
V.  Austin.  46  Ohio  St.  386  (boiler);  Pennsylvania  Coal  Co.  v,  Sanderson,  113  Pa. 
St.  126  (semble);  Sowers  v,  McManus,  214  Pa.  St.  244  (explosives);  Davis  v, 
Charleston  R.  Co.,  72  S.  C.  112  (boiler)  Accord. 

Bursting  of  dam,  see:  Alabama  Coal  &  Iron  Co.  v.  Turner,  145  Ala.  639;  Todd 
».  Cochell,  17  Cal.  97;  Shrewsbury  v.  Smith,  12  Cush.  177;  Cit/  Water  Power  Co. 
V.  City,  113  Minn.  33;  King  v.  Miles  City  Co.,  16  Mont.  463;  Ldvinmton  v,  Adams, 
8  Cow.  175;  Lapham  v,  Curtis,  5  Vt.  37 1.  Compare  Pennock  t;.  Central  R.  Co., 
159  App.  Div.  517. 

As  to  constiiutionality  of  legislaHon  imposing  liabHUy  without  faulty  see  City  v. 
Sturges,  222  U.  S.  313,  322:  Pittsburgh  R.  Co.  v.  Home  Ins.  Co.,  183  Ind.  355; 
Daugherty  v.  Thomas,  174  Mich.  371;  Ives  v.  South  Buffalo  R.  Co.,  201  N.  Y.  271, 
295-298. 


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SECT.  III.]  BROWN  V.  COLLINS  483 

Doe,  J.  It  is  agreed  that  the  defendant  was  in  the  use  of  ordinary 
care  and  skill  in  managing  his  horses,  until  they  were  frightened;  and 
that  they  then  became  unmanageable,  and  ran  against  and  broke  a 
post  on  the  |)laintiff's  land.  It  is  not  expUcitly  stated  that  the  defend- 
ant was  without  actual  fault,  —  that  he  was  not  guilty  of  any  malice, 
or  unreasonable  unskilfulness  or  negligence;  but  it  is  to  be  inferred 
that  the  fact  was  so;  and  we  decide  the  case  on  that  ground.  We 
take  the  case  as  one  where,  without  actual  fault  in  the  defendant,  his 
horses  broke  from  his  control,  ran  away  with  him,  went  upon  the 
plaintiff's  land,  and  did  damage  there,  against  the  will,  intent,  and 
desire  of  the  defendant. 

Sir  Thomas  Rajonond's  report  of  Lambert  &  Olliot  v.  Bessey,  T. 
Rayna.  421,  and  Bessey  v.  Olliot  &  Lambert,  T.  Raym.  467,  is,  "  The 
question  was  this:  A  gaoler  takes  from  the  bailiff  a  prisoner  arrested 
by  him  out  of  the  bailiff's  jurisdiction.  Whether  the  gaoler  be  liable 
to  an  action  of  false  imprisonment  ?  and  the  judges  of  the  conmion 
,  pleas  did  all  hold  that  he  was;  and  of  that  opinion  I  am,  for  these 
reasons. 

"1.  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  there- 
fore Mich.  6  E.  4,  7  a.  pi.  18.  Trespass  quare  vi  &  armis  dausum 
fregit  &  herbam  suam  pedibua  conculcando  consumpsU  in  six  acres. 
The  defendant  pleads  ^at  he  hath  an  acre  lying  next  the  said  six 
acres,  and  upon  it  a  hedge  of  thorns,  and  he  cut  the  thorns,  and  they, 
ipso  invito,  fell  upon  the  plaintiff's  land,  and  the  defendant  took  them 
off  as  soon  as  he  could,  which  is  the  same  trespass;  and  the  plaintiff 
demurred;  and  adjudged  for  the  plaintiff;  for  though  a  man  doth  a 
lawful  thing,  yet  if  any  damage  do  thereby  befall  another,  he  shall 
answer  for  it  if  he  could  have  avoided  it.  As  if  a  man  lop  a  tree,  and 
the  boughs  fall  upon  another,  ipso  irwito,  yet  an  action  lies.  If  a  man 
shoot  at  butts,  and  hurt  another  unawares,  an  action  lies.  I  have  land 
through  which  a  river  runs  to  yoiu*  mill,  and  I  lop  the  fallows  growing 
upon  the  river  side,  which  accidentally  stop  the  water,  so  as  your  mill 
is  hindered,  an  action  lies.  If  I  am  building  my  own  house,  and  a 
piece  of  timber  falls  on  my  neighbor's  house,  and  breaks  part  of  it, 
an  action  lies.  If  a  man  assault  me,  and  I  lift  up  my  staff  to  defend 
myself,  and,  in  lifting  it  up,  hit  another,  an  action  lies  by  that  person, 
and  yet  I  did  a  lawful  thing.  And  the  reason  of  all  these  cases  is,  be- 
cause he  that  is  damaged  ought  to  be  recompensed.  But  otherwise  it 
is  in  criminal  cases,  for  there  actus  non  fadt  reum  nisi  mens  sit  rea. 

"  Mich.  23.  Car.  1.  B.  R.  —  Stile  72,  Guilbert  versus  Stone.  Tres- 
pass for  entering  his  close,  and  taking  away  his  horse.  The  defendant 
pleads,  that  he,  for  fear  of  his  life,  by  threats  of  twelve  men,  went  into 
the  plaintiff's  house,  and  took  the  horse.  The  plaintiff  demurred;  and 
adjudged  for  the  plaintiff,  because  threats  could  not  excuse  the  de- 
fendant, and  make  satisfaction  to  the  plaintiff. 


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484  BROWN  V.  COLLINS  [CHAP.  lU. 

"  Hob.  134,  Weaver  verstis  Ward.  Trespass  of  assault  and  battery. 
The  defendant  pleads,  that  he  was  a  trained  soldier  in  London,  and  he 
and  the  plaintiiSf  were  skirmishing  with  their  company,  and  the  de- 
fendant, with  his  musket,  casualiter  &  per  infortunium  &  contra  volun- 
totem  suam  in  discharging  of  his  gun  hin^  the  plaintiff;  and  resolved 
no  good  plea.  So  here,  though  the  defendant  knew  not  of  the  wrong- 
ful taking  of  the  plaintiff,  yet  that  will  not  make  any  recompense  for 
the  wrong  the  plaintiff  hath  sustained.  .  .  .  But  the  three  other 
judges  resolved,  that  the  defendant,  the  gaoler,  could  not  be  charged, 
because  he  could  not  have  notice  whether  the  prisoner  was  legally 
arrested  or  not." 

In  Fletcher  v.  Rylands,i  L.  R.  3  H.  L.  330,  Lord  Cranworth  said: 
"  In  considering  whether  a  defendant  is  liable  to  a  plaintiff  for  dam- 
age which  the  plaintiff  may  have  sustained,  the  question  in  general  is 
not  whether  the  defendant  has  acted  with  due  care  and  caution,  but 
whether  his  acts  have  occasioned  the  damage.  This  is  all  well  ex- 
plained in  the  old  case  of  Lambert  v,  Bessey,  reported  by  Sir  Thomas. 
Raymond  (Sir  T.  Raym.  421).  And  the  doctrine  is  founded  on  good 
sense.  For  when  one  person,  in  managing  his  own  affairs,  causes,  how- 
ever innocently,  damage  to  another,  it  is  obviously  only  just  that  he 
should  be  the  party  to  suffer.'' 

The  head-note  of  Weaver  v.  Ward.  Hob.  134,  is:  "If  one  trained 
soldier  wound  another,  in  skirmishing  for  exercise,  an  action  of  tres- 
pass will  lie,  unless  it  shall  appear  from  the  defendant's  plea  that  he 
was  guilty  of  no  negligence,  and  that  the  injury  was  inevitable."  The 
reason  of  the  decision,  as  reported,  was  this:  "  For  though  it  were 
agreed,  that  if  men  tilt  or  tourney  in  the  presence  of  the  king,  or  if 
two  masters  of  defence  playing  their  prizes  kill  one  another,  that  this 
shall  be  no  felony;  or  if  a  lunatic  kill  a  man,  or  the  like;  because 
felony  must  be  done  animo  felonico;  yet  in  trespass,  which  tends  only 
to  give  damages  according  to  hurt  or  loss,  it  is  not  so;  and  therefore 
if  a  lunatic  hurt  a  man,  he  shall  be  answerable  in  trespass;  and  there- 
fore no  man  shall  be  excused  of  a  trespass  (for  this  is  the  nature  of 
an  excuse,  and  not  of  a  justification,  prout  ei  bene  licuit),  except  it 
may  be  judged  utterly  without  his  fault;  as  if  a  man  by  force  take 
my  hand  and  strike  you;  or  if  here  the  defendant  had  said  that  the 
plaintiff  ran  across  his  piece  when  it  was  discharging;  or  had  set  forth 
the  case  with  the  circumstances,  so  as  it  had  appeared  to  the  Court 
that  it  had  been  inevitable,  and  that  the  defendant  had  conmiitted  no 
negligence  to  give  occasion  to  the  hurt." 

There  may  be  some  ground  to  argue  that  "  utterly  without  his 
fault,"  "  inevitable,"  and  "  no  negligence,"  in  the  sense  intended  in 
that  case,  mean  no  more  than  the  modem  phrase  "  ordinary  and  rea- 
sonable care  and  prudence;  "  and  that,  in  such  a  case,  at  the  present 

^  See  Cahill  v,  Eastman,  18  Minn.  324;  Madras  R.  Co.  v.  Zemindar  of  Car- 
vatenagarum,  L.  R.  1  Ind.  App.  364.  —  Reporter's  Note. 


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SECT.  III.]  BBOWN  V.  COLLINS  486 

time,  to  hold  a  plea  good  that  allies  the  exercise  of  reasonable  care, 
without  setting  forth  all  "  the  circumstances  "  or  evidence  sustaining 
the  plea,  would  be  substantially  in  compliance  with  the  law  of  that 
case,  due  allowance  being  made  for  the  difference  of  legal  language 
used  at  different  periods,  and  the  difference  in  the  forms  of  pleading. 
But  the  drift  of  the  ancient  English  authorities  on  the  law  of  torts 
seems  to  differ  materially  from  the  view  now  prevailing  in  this  coun- 
try. Formerly,  in  England,  there  seems  to  have  been  no  well- 
defined  test  of  an  actionable  tort.  Defendants  were  often  held  liable 
"  because,"  as  Raymond  says,  "  he  that  is  damaged  ought  to  be  rec- 
ompensed; "  and  not  because,  upon  some  clearly  stated  principle  of 
law  founded  on  actual  culpability,  public  policy,  or  natural  justice,  he 
was  entitled  to  compensation  from  the  defendant.  The  law  was  sup- 
posed to  regard  "  the  loss  and  damage  of  the  party  suffering,"  more 
than  the  negUgence  and  blameworthiness  of  the  defendant:  but  how 
much  more  it  regarded  the  former  than  the  latter,  was  a  question  not 
settled,  and  very  Uttle  investigated.  "  The  loss  and  damage  of  the 
party  suffering,"  if  without  reUef,  would  be  a  hardship  to  him;  reUef 
compulsorily  furnished  by  the  other  party  would  often  be  a  hardship 
to  him;  when  and  why  the  "  loss  and  damage  "  should,  and  when  and 
why  they  should  not,  be  transferred  from  one  to  the  other,  by  process 
of  law,  were  problems  not  solved  in  a  philosophical  manner.  There 
were  precedents,  established  upon  superficial,  crude,  and  undigested 
notions;  but  no  application  of  the  general  system  of  legal  reason  to 
this  subject. 

Mr.  Holmes  says:  "  It  may  safely  be  stated  that  all  the  more  an- 
cient examples  are  traceable  to  conceptions  of  a  much  ruder  sort  (than 
actual  fault),  and  in  modem  times  to  more  or  less  definitely  thought- 
out  views  of  public  poUcy.  The  old  writs  in  trespass  did  not  allege, 
nor  was  it  necessary  to  show,  anything  savoring  of  culpabiUty.  It 
was  enough  that  a  certain  event  had  happened,  and  it  was  not  even 
necessary  that  the  act  should  be  done  intentionally,  though  in- 
nocently. An  accidental  blow  was  as  good  a  cause  of  action  as  an 
intentional  one.  On  the  other  hand,  when,  as  in  Rylands  v.  Fletcher, 
modem  courts  hold  a  man  liable  for  the  escape  of  water  from  a  res- 
ervoir which  he  has  built  upon  his  land,  or  for  the  escape  of  cattle, 
although  he  is  not  alleged  to  have  been  negUgent,  they  do  not  proceed 
upon  the  ground  that  there  is  an  element  of  culpabiUty  in  making  such 
a  reservoir,  or  in  keeping  cattle,  sufficient  to  charge  the  defendant  as 
soon  as  a  damnum  occurs,  but  on  the  principle  that  it  is  politic  to 
make  those  who  go  into  extra-hazardous  employments  take  the  risk 
on  their  own  shoulders."  He  alludes  to  the  fact  that  "  there  is  no 
certainty  what  will  be  thought  extra-hazardous  in  a  certain  jurisdic- 
tion at  a  certain  time,"  but  suggests  that  many  particular  instances 
point  to  the  general  principle  of  liability  for  the  consequences  of  extra- 
hazardous undertakings  as  the  tacitly  assumed  ground  of  decision. 


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486  BROWN  V.  COLLINS  [CHAP.  in. 

7  Am.  Law  Rev.  662, 653, 662;  2  Kent  Com.  (12th  ed.)  561,  n.  1;  4  id. 
1 10,  n.  1 .  If  the  hazardous  nature  of  things  or  of  acts  is  adopted  as  the 
test,  or  one  of  the  tests,  and  the  English  authorities  are  taken  as  the 
standard  of  what  is  to  be  regarded  as  hazardous, ''  it  will  be  necessary 
to  go  the  length  of  saying  that  an  owner  of  real  property  is  liable  for 
all  damage  resulting  to  his  neighbor's  property  from  anything  done 
upon  his  own  land  "  (Mellish's  argument  in  Fletcher  v.  Rylands,  L.  R. 
1  Ex.  272),  and  that  an  individual  is  answerable  "  who,  for  his  own 
benefit,  makes  an  improvement  on  his  own  land,  according  to  his  best 
skill  and  diligence,  and  not  foreseeing  it  will  produce  any  injury  to  his 
neighbor,  if  he  thereby  unwittingly  injure  his  neighbor  "  —  Gibbs, 
C.  J.,  in  Sutton  v.  Clarke,  6  Taunt.  44,  approved  by  Blackburn,  J.,  in 
Fletcher  v.  Rylands,  L.  R.  1  Ex.  286.  If  danger  is  adopted  as  a  test, 
and  the  English  authorities  are  abandoned,  the  fact  of  danger,  contro- 
verted in  each  case,  will  present  a  question  for  the  jury,  and  expand 
the  issue  of  tort  or  no  tort  into  a  question  of  reasonableness,  in  a  form 
much  broader  than  has  been  generally  used;  or  courts  will  be  left  to 
devise  tests  of  peril,  under  varying  influences  of  time  and  place  that 
may  not  immediately  produce  a  uniform,  consistent,  and  permanent 
rule. 

It  would  seem  that  some  of  the  early  English  decisions  were  based 
on  a  view  as  narrow  as  that  which  r^ards  nothing  but  the  hardship 
"  of  the  party  sufifering;  "  disr^ards  the  question  whether,  by  trans- 
ferring the  hardship  to  the  other  party,  anything  more  will  be  done 
than  substitute  one  sufifering  party  for  another;  and  does  not  consider 
what  legal  reason  can  be  given  for  relieving  the  party  who  has  suffered, 
by  making  another  sufifer  the  expense  of  his  relief.  For  some  of  those 
decisions,  better  reasons  may  now  be  given  than  were  thought  of  when 
the  decisions  were  announced:  but  whether  a  satisfactory  test  of  an 
actionable  tort  can  be  extracted  from  the  ancient  authorities,  and 
whether  the  few  modem  cases  that  carry  out  the  doctrine  of  those 
authorities  as  far  as  it  is  carried  in  Fletcher  v.  Rylands  (3  H.  &  C. 
774;  L.  R.  1  Ex.  265;  L.  R.  3  H.  L.  330)  can  be  sustained,  is  very 
doubtful.  The  current  of  American  authority  is  very  strongly  against 
some  of  the  leading  English  cases. 

One  of  the  strongest  presentations  of  the  extreme  English  view  is 
by  Blackburn,  J.,  who  says,  in  Fletcher  t'.  Rylands,  L.  R.  1  Ex.  279, 
280,  281,  282:  "  We  think  that  the  true  rule  of  law  is,  that  the  per- 
son who  for  his  own  piu'poses  brings  on  his  lands,  and  collects  and 
keeps  there  anything  likely  to  do  mischief  if  it  escapes,  must  keep  it 
in  at  his  peril,  and  if  he  does  not  do  so,  is  prima  facie  answerable  for 
all  the  damage  which  is  the  natural  consequence  of  its  escape.  He  can 
excuse  himself  by  showing  that  the  escape  was  owing  to  the  plaintiff's 
default;  or  perhaps  that  the  escape  was  the  consequence  of  vis  majors 
or  the  act  of  God;  but  as  nothing  of  this  sort  exists  here,  it  is  un- 
necessary to  inquire  what  excuse  would  be  sufficient.  The  general  rule. 


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SECT.  III.]  BROWN  V.  COLLINS  487 

as  above  stated,  seems,  on  principle,  just.  The  person  whose  grass  or 
com  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  habita- 
tion is  made  imheaJthy  by  the  fmnes  and  noisome  vapors  of  his  neigh- 
bor'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,  harm- 
less 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  anticipated  consequences.  And  upon  au- 
thority, this  we  think  is  established  to  be  the  law,  whether  the  things 
so  brought  be  beasts,  or  water,  or  filth,  or  stenches.  The  case  that  has 
most  conmionly  occurred,  and  which  is  most  frequently  to  be  found  in 
the  books,  is  as  to  the  obligation  of  the  owner  of  cattle  which  he  has 
brought  on  his  land,  to  prevent  their  escaping  and  doing  mischief. 
The  law,  as  to  them,  seems  to  be  perfectly  settled  from  early  times: 
the  owner  must  keep  them  in  at  his  peril,  or  he  will  be  answerable  for 
the  natural  consequences  of  their  escape,  —  that  is,  with  regard  to 
tame  beasts,  for  the  grass  they  eat  and  trample  upon,  though  not  for 
any  injury  to  the  person  of  others,  for  our  ancestors  have  settled  that 
it  is  not  the  general  nature  of  horses  to  kick,  or  bulls  to  gore  [or  he 
might  have  added,  dogs  to  bite],  —  but  if  the  owner  knows  that  the 
beast  has  a  vicious  propensity  to  attack  man,  he  will  be  answerable  for 
that  too.  ...  In  these  latter  authorities  [relating  to  animals  called 
mischievous  or  ferocious],  the  point  under  consideration  was  damage 
to  the  person;  and  what  was  decided  was,  that  where  it  was  known 
that  hurt  to  the  person  was  the  natural  consequence  of  the  animal 
being  loose,  the  owner  should  be  responsible  in  damages  for  such  hurt 
though  where  it  was  not  known  to  be  so,  the  owner  was  not  respon- 
sible for  such  damages;  but  where  the  damage  is,  Uke  eating  grass  or 
other  ordinary  ingredients  in  damage  feasant,  the  natural  consequence 
of  the  escape,  the  rule  as  to  keeping  in  the  animal  is  the  same.  .  .  . 
There  does  not  appear  to  be  any  difference,  in  principle,  between  the 
extent  of  the  duty  cast  on  him  who  brings  cattle  on  his  land  to  keep 
them  in,  and  the  extent  of  the  duty  imposed  on  him  who  brings  on  his 
land  water,  filth,  or  stenches,  or  any  other  thing,  which  will,  if  it 
escape,  naturally  do  damage,  to  prevent  their  escaping  and  injuring 
his  neighbor." 

This  seems  to  be  substantially  an  adoption  of  the  early  authorities, 
and  an  extension  of  the  ancient  practice  of  holding  the  defendant 
liable,  in  some  cases,  on  the  partial  view  that  regarded  the  misfortune 


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488  BROWN  V.  COLLINS  [CHAP.  lU. 

of  the  plaintiff  upon  whom  a  damage  had  fallen,  and  required  no  legal 
reason  for  transferring  the  damage  to  the  defendant.  The  ancient 
rule  was,  that  a  person  in  whose  house,  or  on  whose  land,  a  fire  acci- 
dentally originated,  which  spread  to  his  neighbor's  property  and  de- 
stroyed it,  must  make  good  the  loss.  Filliter  v.  Phippard,  11  A.  &  E. 
N.  8.  347,  354;  Tubervil  v.  Stamp,  1  Comyns,  32;  s.  c.  1  Salk.  13; 
Com.  Dig.,  Action  upon  the  case  for  Negligence  (A  6) ;  1  Arch.  N.  P. 
539;  Fletcher  v.  Rylands,  3  H.  &  C.  790,  793;  Russell  v.  Fabyan,  34 
N.  H.  218,  225.  No  inquiry  was  made  into  the  reason  of  putting  upon 
him  his  neighbor's  loss  as  well  as  his  own.  The  rule  of  such  cases  is 
apphed,  by  Blackburn,  to  everything  which  a  man  brings  on  his  land, 
which  will,  if  it  escape,  naturally  do  damage.  One  result  of  such  a 
doctrine  is,  that  every  one  building  a  fire  on  his  own  hearth,  for  neces- 
sary piuposes,  with  the  utmost  care,  does  so  at  the  peril,  not  only  of 
losing  his  own  house,  but  of  being  irretrievably  ruined  if  a  spark  from 
his  chimney  starts  a  conflagration  which  lays  waste  the  neighborhood. 
"  In  conflict  with  the  rule,  as  laid  down  in  the  English  cases,  is  a 
class  of  cases  in  reference  to  damage  from  fire  communicated  from 
the  adjoining  premises.  Fire,  like  water  or  steam,  is  likely  to  produce 
mischief  if  it  escapes  and  goes  beyond  control;  and  yet  it  has  never 
been  held  in  this  country  that  one  building  a  fire  upon  his  own  prem- 
ises can  be  made  liable  if  it  escapes  upon  his  neighbor's  premises,  and 
does  him  damage  without  proof  of  negligence."  Losee  v.  Buchanan, 
51  N.  Y.  476,  487. 

Ever3rthrng  that  a  man  can  bring  on  his  land  is  capable  of  escaping, 
—  against  his  will,  and  without  his  fault,  with  or  without  assistance, 
in  some  form,  soUd,  liquid,  or  gaseous,  changed  or  unchanged  by  the 
transforming  processes  of  nature  or  art,  —  and  of  doing  damage  after 
its  escape.  Moreover,  if  there  is  a  legal  principle  that  makes  a  man 
liable  for  the  natural  consequences  of  the  escape  of  things  which  he 
brings  on  his  land,  the  application  of  such  a  principle  cannot  be  limited 
to  those  things;  it  must  be  applied  to  all  his  acts  that  distm*b  the 
original  order  of  creation;  or,  at  least,  to  all  things  which  he  under- 
takes to  possess  or  control  anywhere,  and  which  were  not  used  and  en- 
joyed in  what  is  called  the  natural  or  primitive  condition  of  mankind, 
whatever  that  may  have  been.  This  is  going  back  a  long  way  for  a 
standard  of  legal  rights,  and  adopting  an  arbitrary  test  of  responsibil- 
ity that  confounds  all  degrees  of  danger,  pays  no  heed  to  the  essential 
elements  of  actual  fault,  puts  a  clog  upon  natural  and  reasonably 
necessary  uses  of  matter,  and  tends  to  embarrass  and  obstruct  much 
of  the  work  which  it  seems  to  be  man's  duty  carefully  to  do.  The 
distinction  made  by  Lord  Cairns,  Rylands  v,  Fletcher,  L.  R.  3  H.  L. 
330,  between  a  natiwal  and  a  non-natural  use  of  land,  if  he  meant 
an3rthing  more  than  the  difference  between  a  reasonable  use  and  an 
unreasonable  one,  is  not  established  in  the  law.  Even  if  the  arbitrary 
test  were  applied  only  to  things  which  a  man  brings  on  his  land,  it 


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SECT.  III.]  BROWN  V.  COLLINS  489 

would  still  recognize  the  peculiar  rights  of  savage  life  in  a  wilderness, 
ignore  the  rights  growing  out  of  a  civilized  state  of  society,  and  make 
a  distinction  not  warranted  by  the  enlightened  spirit  of  the  common 
law:  it  would  impose  a  penalty  upon  efforts,  made  in  a  reasonable, 
skilful,  and  careful  manner,  to  rise  above  a  condition  of  barbarism. 
It  is  impossible  that  legal  principle  can  throw  so  serious  an  obstacle  in 
the  way  of  progress  and  improvement.  Natiwal  rights  are,  in  general, 
legal  rights;  and  the  rights  of  civiUzation  are,  in  a  legal  sense,  as 
natural  as  any  others.  "  Most  of  the  rights  of  property,  as  well  as  of 
person,  in  the  social  state,  are  not  absolute  but  relative,"  Losee  v. 
Buchanan,  51  N.  Y.  485;  and,  if  men  ever  were  in  any  other  than  the 
social  state,  it  is  neither  necessary  nor  expedient  that  they  should  now 
govern  themselves  on  the  theory  that  they  ought  to  live  in  some  other 
state.  The  common  law  does  not  usually  establish  tests  of  responsi- 
bility on  any  other  basis  than  the  propriety  of  their  living  in  the 
social  state,  and  the  relative  and  qualified  character  of  the  rights  in- 
cident to  that  state. 

In  Fletcher  v.  Rylands,  L.  R.  1  Ex.  286,  287,  Mr.  Justice  Black- 
bum,  conmienting  upon  the  remark  of  Mr.  Baron  Martin,  "  that, 
when  damage  is  done  to  personal  property,  or  even  to  the  person,  by 
collision,  either  upon  land  or  at  sea,  there  must  be  negligence  in  the 
party  doing  the  damage  to  render  him  legally  responsible,"  sa3rs,  — 
"  This  is  no  doubt  true;  and,  as  was  pointed  out  by  Mr.  Mellish  dur- 
ing his  argument  before  us,  this  is  not  confined  to  cases  of  collision,  for 
there  are  many  cases  in  which  proof  of  negligence  is  essential,  as,  for 
instance,  where  an  ilnruly  horse  gets  on  the  footpath  of  a  pubUc  street 
and  kills  a  passenger,  Hanmiack  v.  White,  11  C.  B.  n.  s.  588,  31  L.  J. 
(C.  P.)  129;  or  where  a  person  in  a  dock  is  struck  by  the  falling  of 
a  bale  of  cotton  which  the  defendant's  servants  are  lowering,  Scott  v. 
London  Docks  Company,  3  H.  &  C.  596,  35  L.  J.  (Ex.)  17,  220;  and 
many  other  similar  cases  may  be  found.  But  we  think  these  cases  dis- 
tinguishable from  the  present.  TraflSa  on  the  highways,  whether  by 
land  or  sea,  cannot  be  conducted  without  exposing  those  whose  per- 
sons or  property  are  near  it  to  some  inevitable  risk;  and  that  being 
so,  those  who  go  on  the  highway,  or  have  their  property  adjacent  to  it, 
may  well  be  held  to  do  so  subject  to  their  taking  upon  themselves  the 
risk  of  injury  from  that  inevitable  danger;  and  persons  who,  by  the 
license  of  the  owner,  pass  near  to  warehouses  where  goods  are  laeing 
raised  or  lowered,  certainly  do  so  subject  to  the  inevitable  risk  of  ac- 
cident. In  neither  case,  therefore,  can  they  recover  without  proof  of 
want  of  care  or  skill  occasioning  the  accident;  and  it  is  believed  that 
all  the  cases  in  which  inevitable  accident  has  been  held  an  excuse  for 
what,  prima  facie,  was  a  trespass,  can  be  explained  on  the  same  prin- 
ciple, viz.,  that  the  circumstances  were  such  as  to  show  that  the  plain- 
tiff had  taken  that  risk  upon  himself."  This  would  be  authority  for 
holding,  in  the  present  case,  that  the  plaintiff,  by  having  his  post  near 


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490  BROWN  V.  COLLINS  [CHAP.  III. 

the  street,  took  upon  himself  the  risk  of  its  being  broken  by  an  inevi- 
table accident  carrying  a  traveller  oflf  the  street.  But  such  a  doctrine 
would  open  more  questions,  and  more  difficult  ones,  than  it  would 
settle.  At  what  distance  from  a  highway  would  an  object  be  near  it  7 
What  part  of  London  is  not  near  a  street  ?  And  then,  as  the  defendant 
had  as  good  a  right  to  be  at  home  with  his  horses  as  to  be  in  the  high- 
way, why  might  not  his  neighbor,  by  electing  to  live  in  an  inhabited 
country,  as  well  be  held  to  take  upon  himself  the  risk  of  an  inevitable 
accident  happening  by  reason  of  the  country  being  inhabited,  as  to 
assume  a  highway  risk  by  Uving  near  a  road  ?  If  neighborhood  is  the 
test,  who  are  a  man^s  neighbors  but  the  whole  human  race  ?  If  a  per- 
son, by  remaining  in  England,  is  held  to  take  upon  himself  one  class 
of  the  inevitable  dangers  of  that  country  because  he  could  avoid  that 
class  by  migrating  to  a  region  of  solitude,  why  should  he  not,  for  a 
like  reason,  also  be  held  to  expose  himself  voluntarily  to  other  classes 
of  the  inevitable  dangers  of  that  country  ?  And  where  does  this  rea- 
soning end  ? 

It  is  not  improbable  that  the  rules  of  liability  for  damage  done  by 
brutes  or  by  fire,  found  in  the  tfarly  English  cases,  were  introduced  by 
sacerdotal  influence,  from  what  was  supposed  to  be  the  Roman  or  the 
Hebrew  law.  7  Am.  L.  Rev.  652,  note;  1  Domat  Civil  Law  (Strahan*s 
translation,  2d  ed.),  304,  305,  306,  312,  313;  Exodus  xxi  28-32,  36; 
xxii.  5,  6,  9.  It  would  not  be  singular  if  these  rules  should  be  spon- 
taneously produced  at  a  certain  period  in  the  Ufe  of  any  community. 
Where  they  first  appeared  is  of  Uttle  consequence  in  the  present  in- 
quiry. They  were  certainly  introduced  in  England  at  an  immature 
stage  of  English  jurisprudence,  and  an  undeveloped  state  of  agricul- 
ture, manufactures,  and  commerce,  when  the  nation  had  not  settled 
down  to  those  modem,  progressive,  industrial  pursuits  which  the  spirit 
of  the  common  law,  adapted  to  all  conditions  of  society,  encourages 
and  defends.  They  were  introduced  when  the  development  of  many 
of  the  rational  rules  now  universally  recognized  as  principles  of  the 
common  law  had  not  been  demanded  by  the  growth  of  intelligence, 
trade,  and  productive  enterprise,  —  when  the  common  law  had  not 
been  set  forth  in  the  precedents,  as  a  coherent  and  logical  system  on 
many  subjects  other  than  the  tenures  of  real  estate.  At  all  events, 
whatever  may  be  said  of  the  origin  of  those  rules,  to  extend  them,  as 
they  were  extended  in  Rylands  v.  Fletcher,  seems  to  us  contrary  to 
the  analogies  and  the  general  principles  of  the  common  law,  as  now 
established.  To  extend  them  to  the  present  case  would  be  contrary  to 
American  authority  as  well  as  to  our  understanding  of  legal  principles. 

The  difficulty  under  which  the  plaintiff  might  labor  in  proving  the 
culpability  of  ihe  defendant,  —  which  is  sometimes  given  as  a  reason 
for  imposing  an  absolute  liability  without  evidence  of  negligence,  — 
Rixford  v.  Smith,  52  N.  H.  355,  359,  or  changing  the  burden  of  proof, 
Lisbon  v.  Lyman,  49  N.  H.  553,  568,  569,  574,  575,  seems  not  to  have 
been  given  in  the  English  cases  relating  to  damage  done  by  brutes  or 


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SECT.  III.]  BROWN  V.  COLLINS  491 

fire.  And,  however  large  or  small  the  class  of  cases  in  which  such 
a  difficulty  may  be  the  foimdation  of  a  rule  of  law,  since  the  difficulty 
has  been  so  much  reduced  by  the  abolition  of  witness  disabilities,  the 
present  case  is  not  one  of  that  class. 

There  are  many  cases  where  a  man  is  held  liable  for  taking,  con- 
verting (C.  R.  Co.  V.  Foster,  51  N.  H.  490)  or  destroying  property, 
or  doing  something  else,  or  causing  it  to  be  done,  intentionally,  under 
a  claim  of  right,  and  without  any  actual  fault.  "  Probably  one  half 
of  the  cases  in  which  trespass  de  bonis  aaportatia  is  maintained,  arise 
from  a  mere  misapprehension  of  legal  rights."  Metcalf,  J.,  in  Stan- 
ley V.  Gaylord,  1  Cush.  536,  551.  When  a  defendant  erroneously  sup- 
posed, without  any  fault  of  either  party,  that  he  had  a  right  to  do 
what  he  did,  and  his  act,  done  in  the  assertion  of  his  supposed  right, 
turns  out  to  have  been  an  interference  with  the  plaintiff's  property,  he 
is  generally  held  to  have  assumed  the  risk  of  maintaining  the  right 
which  he  asserted,  and  the  responsibility  of  the  natural  consequences 
of  his  voluntary  act.  But  when  there  was  no  fault  on  his  part,  and 
the  damage  was  not  caused  by  his  voluntary  and  intended  act;  or  by 
an  act  of  which  he  knew,  or  ought  to  have  known,  the  damage  would 
be  a  necessary,  probable,  or  natural  consequence;  or  by  an  act  which 
he  knew  or  ou^t  to  have  known,  to  be  unlawful,  —  we  understand 
the  general  rule  to  be,  that  he  is  not  liable.  Vincent  v.  Stinehom*,  7 
Vt.  62;  Aaron  t;.  State,  31  Ga.  167;  Morris  v.  Piatt,  32  Conn.  75; 
and  Judge  Redfield's  note  to  that  case  in  4  Am.  L.  Reg.  n.  s.  532; 
Townshend  on  Slander,  sees.  67,  88,  p.  128,  n.  1  (2d  ed.).  In  Brown 
V.  Kendall,  6  Cush.  292,  the  defendant,  having  interfered  to  part  his 
dog  and  the  plaintiff's  which  were  fighting,  in  raising  a  stick  for  that 
purpose  accidentally  struck  the  plaintiff,  and  injured  him.  It  was 
held,  that  parting  the  dogs  was  a  lawful  and  proper  act  which  the  de- 
fendant might  do  by  the  use  of  proper  and  safe  means;  and  that  if 
the  plaintiff's  injury  was  caused  by  such  an  act  done  with  due  care 
and  all  proper  precautions,  the  defendant  was  not  liable.  In  the  de- 
cision, tiiere  is  the  important  suggestion  that  some  of  the  apparent 
confusion  in  the  authorities  has  arisen  from  discussions  of  the  ques- 
tion whether  a  party's  remedy  is  in  trespass  or  case,  and  from  the 
statement  that  when  the  injury  comes  from  a  direct  act,  trespass  lies, 
and  when  the  damage  is  consequential,  case  is  the  proper  form  of  ac- 
tion, —  the  remark  concerning  the  immediate  effect  of  an  act  being 
made  with  reference  to  damage  for  which  it  is  admitted  there  is  a 
remedy  of  some  kind,  and  on  the  question  of  the  proper  remedy,  not 
on  the  general  question  of  liability.  Judge  Shaw,  delivering  the  opin- 
ion of  the  court,  said:  "  We  think,  as  the  result  of  all  the  authorities, 
the  rule  is  correctly  stated  by  Mr.  Greenleaf ,  that  the  plaintiff  must 
come  prepared  with  evidence  to  show  either  that  the  intention  was 
unlawful,  or  that  the  defendant  was  in  favlt;  for  if  the  injury  was 
imavoidable,  and  the  conduct  of  the  defendant  was  free  from  blame, 
he  will  not  be  liable.    2  Greenl.  Ev.,  sees.  85  to  92;  Wakeman  v.  Rob- 


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492     MCCORD  RUBBER  CO.  V.  ST.  JOSEPH  WATER  CO.    [CHAP.  ni. 

inson,  1  Bing.  213.  If,  in  the  prosecution  of  a  lawful  act,  a  casualty 
purely  accidental  arises,  no  action  can  be  supported  for  an  injury  aris-. 
ing  therefrom.  Davis  v.  Saunders,  2  Chit.  R.  639;  Com.  Dig.  Bat- 
tery, A.  (Day^s  ed.)  and  notes;  Vincent  v.  Stinehour,  7  Vt.  62; " 
James  v.  Campbell,  5  C.  &  P.  372;  Alderson  v,  Waistell,  1  C.  4  K.  358. 
Whatever  may  be  the  rule  or  the  exception,  or  the  reason  of  it,  in 
case  of  insanity.  Weaver  v.  Ward,  Hob.  134;  Com.  Dig.  Battery,  A. 
note  d,  Hammond's  ed.;  Dormay  v.  Borradaile,  5  M.  G.  &  S.  380; 
Sedgwick  on  Damages,  455,  456,  2d  ed.;  Morse  v.  Crawford,  17  Vt. 
499;  Dickinson  v.  Barber,  9  Mass.  225;  Krom  v.  Schoonmaker,  3 
Barb.  647;  Homer  v.  Marphall,  5  Mimf.  466;  Yeates  v.  Reed,  4 
Blackf .  463,  and  whatever  may  be  the  full  legal  definitions  of  neces- 
sity, inevitable  danger,  and  unavoidable  accident,  the  occurrence  com- 
plained of  in  this  case  was  one  for  which  the  defendant  is  not  liable, 
unless  every  one  is  liable  for  all  damage  done  by  superior  force  over- 
powering him,  and  using  him  or  his  property  as  an  instrument  of 
violence.  The  defendant,  being  without  fault,  was  as  innocent  as  if 
the  pole  of  his  wagon  had  been  hurled  on  the  plaintiff's  land  by  a 
whirlwind,  or  he  himself,  by  a  stronger  man,  had  been  thrown  through 
the  plaintiff's  window.  Upon  the  facts  stated,  taken  in  the  sense  in 
which  we  understand  them,  the  defendant  is  entitled  to  judgment. 
1  Billiard  on  Torts,  ch.  3,  3d  ed.;  Losee  v.  Buchanan,  51  N.  Y.  476; 
Parrot  v.  Wells,  15  Wall.  524,  537;  Roche  v.  M.  G.  L.  Co.,  5  Wis. 
55;  Eastman  v.  Co.,  44  N.  H.  143,  156.  Case  discharged. 


McCORD  RUBBER  CO.  v.  St.  JOSEPH  WATER  CO. 

SuPREBiE  Court,  Missouri,  May  25, 1904. 

Reported  in  181  Missouri  Reports^  678. 

Appeal  from  Buchanan  Circuit  Court. 

Action  for  damages  for  the  flooding  of  plaintiff's  cellar  with  water 
caused  by  defendant's  negligence,  whereby  a  large  quantity  of  its 
goods  stored  in  the  cellar  were  damaged.   Answer,  a  general  denial.^ 

Defendant  company  supplied  water  distributed  through  pipes  and 
mains  from  reservoirs.  A  service  pipe  from  a  main  carried  water  to 
a  building  occupied  by  one  August.  There  was  a  bursting  in  a  "  fish 
trap  "  used  in  connection  with  the  service  pipe.  Water  escaped  on  to 
the  premises  of  August,  and  from  thence  to  the  adjoining  premises  of 
the  plaintiff  company.  The  jury  found  a  verdict  for  the  defendant. 
In  view  of  the  instructions  given,  this  verdict  must  be  regarded  as 
negativing  the  allegations  of  negligence  contained  in  the-  plaintiff's 
pleading. 

Judgment  having  been  rendered  for  defendant,  the  plaintiff  ap- 
pealed. 

[Arguments  and  part  of  opinion  omitted.] 

^  Only  so  much  of  the  case  is  given  as  relates  to  a  single  point. 


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SECT.  TIT.]  GILES  V.  WALKER  493 

Valuant,  J.  ...  III.  The  plaintiff  contends,  however,  that  the 
defendants  are  liable  r^ardless  of  whether  they  were  guilty  of  any 
negligence  directly  causing  the  accident.  This  contention  rests  in  the 
theory  that  one  who  brings  into  his  premises  anything  that  is  liable 
to  escape,  and  liable  to  inflict  injury  on  his  neighbors  if  it  should 
escape,  brings  it  there  at  his  peril,  and  is  responsible  for  any  injury 
that  it  may  cause. 

That  contention  rests  for  its  authority  on  the  decision  in  Rylands 
r.  Fletcher,  L.  R.  3  H.  L.  330.  In  the  briefs  of  the  learned  counsel 
for  respondents,  reference  is  made  to  a  large  number  of  authorities 
going  to  show  that  the  doctrine  of  Rylands  v.  Fletcher  has  not  been 
approved  generally  in  America,  and  that  it  has  been  modified  in  Eng- 
land. Among  the  authorities  so  referred  to  are  GriiBBth  v.  liewis,  17 
Mo.App.605;  Murphyt;.Gillum,73Mo.  App.487;  Cooley  on  Torts, 
570;  Losee  v.  Buchanan,  51  N.  Y.  476;  Brown  v.  Collins,  53  N.  H. 
442. 

But  in  the  facts,  the  case  at  bar  is  distinguished  from  Rylands  v. 
Fletcher. 

[After  stating  the  facts  of  Rylands  v.  Fletcher,  and  quoting  from 
the  opinion  of  Lord  Chancellor  Cairns.]  There  is  a  wide  difference 
between  a  gi-eat  volmne  of  water  collected  in  a  reservoir  in  dangerous 
proximity  to  the  premises  of  another  and  water  brought  into  a  house 
through  pipes  in  the  manner  usual  in  all  cities,  for  the  ordinary  use 
of  the  occupants  of  the  house.  Whilst  water  so  brought  into  a  house 
cannot  UteraJly  be  said  to  have  come  in  in  the  course  of  what  might  be 
called  in  the  language  above  quoted  of  the  Lord  Chancellor  "  natural 
user  ''  of  the  premises,  yet  it  is  brought  in  by  the  method  imiversally 
in  use  in  cities  and  is  not  to  be  treated  as  an  unnatural  gathering  of 
a  dangerous  agent.  The  law  applicable  to  the  caging  of  ferocious  ani- 
mals is  not  applicable  to  water  brought  into  a  house  by  pipes  in  the 
usual  manner. 

The  learned  counsel  for  the  plaintiff  tried  their  case  on  the  theory 
that  the  defendants  were  negligent,  and  that  is  the  only  theory  on 
which  they  could  have  tried  it. 

Judgment  affirmed.^ 

GILES  t;.  WALKER 

In  the  Queen's  Bench  Division,  March  27,  1890. 

Reported  in  Law  Reports,  24  Queen's  Bench  Divisionf  656. 

Appeal  from  the  Leicester  County  Court. 

The  defendant,  a  farmer,  occupied  land  which  had  originally  been 
forest  land,  but  which  had  some  years  prior  to  1883,  when  the  de- 

1  Damage  through  escape  of  gas  from  pipes,  see:  Gould  v.  Winona  Gas  Co., 
100  Minn.  258;  Taylor  v.  St.  Joseph  Gas  Co.,  186  Mo.  App.  537:  Morgan  v. 
United  Gas  Co.,  214  Pa.  St.  109;  Windish  v.  Peoples  Gas  Co.,  248  Pa.  St.  236. 


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494  GILES  V.  WALKER  [CHAP.  in. 

fendant's  occupation  of  it  commenced,  been  brought  into  cultivation 
by  the  then  occupier.  The  forest  land  prior  to  cultivation  did  not 
bear  thistles;  but  immediately  upon  its  being  cultivated  thistles 
sprang  up  all  over  it.  The  defendant  neglected  to  mow  the  thistles 
periodically  so  as  to  prevent  them  from  seeding,  and  in  the  years  1887 
and  1888  there  were  thousands  of  thistles  on  his  land  in  full  seed.  The 
consequence  was  that  the  thistle  seeds  were  blown  by  the  wind  in 
large  quantities  on  to  the  adjoining  land  of  the  plaint^,  where  they 
took  root  and  did  damage.  The  plaintiff  sued  the  defendant  for  such 
damage  in  the  county  court.  The  judge  left  to  the  jury  the  question 
whether  the  defendant  in  not  cutting  the  thistles  had  been  guilty  of 
negligence.  The  jmy  foimd  that  he  was  negUgent,  and  judgment  was 
accordingly  entered  for  the  plaintiff.    The  defendant  appealed. 

Toller,  for  the  defendant.  The  facts  of  this  case  do  not  establish 
any  cause  of  action.  The  judge  was  wrong  in  leaving  the  question 
of  n^;ligence  to  the  jmy.  Before  a  person  can  be  charged  with  negli- 
gence, it  must  be  shown  that  there  is  a  duty  on  him  to  take  care.  But 
here  ihere  is  no  such  duty.  The  defendant  did  not  bring  the  thistles 
on  to  his  land;  they  grew  there  naturally.  [He  was  stopped  by  the 
court.] 

R.  Bray,  for  the  plaintiff.  If  the  defendant's  predecessor  had  left 
the  land  in  its  original  condition  as  forest  land  the  thistles  would 
never  have  grown.  By  bringing  it  into  cultivation,  and  so  distm-bing 
the  natiu-al  condition  of  things,  he  caused  the  thistles  to  grow,  thereby 
creating  a  nuisance  on  the  land  just  as  much  as  if  he  had  intention- 
ally grown  them.  The  defendant,  by  entering  into  occupation  of  the 
land  with  the  nuisance  on  it,  was  under  a  duty  to  prevent  damage 
from  thereby  accruing  to  his  neighbor.  The  case  resembles  that  of 
Crowhurst  v.  Amersham  Burial  Board,  4  Ex.  D.  5,  where  the  defend- 
ants were  held  responsible  for  allowing  the  branches  of  their  yew 
trees  to  grow  over  their  boundary,  whereby  a  horse  of  the  plaintiff, 
being  placed  at  pasture  in  the  adjoining  field,  ate  some  of  the  yew 
twigs  and  died. 

Lord  CoLERmoE,  C.  J.  I  never  heard  of  such  an  action  as  this. 
There  can  be  no  duty  as  between  adjoining  occupiers  to  cut  the 
thistles,  which  are  the  natural  growth  of  the  soil.  The  appeal  must 
be  allowed. 

Lord  Eshbr,  M.  R.    I  am  of  the  same  opinion. 

Appeal  allowed.^ 

1  Hemdon  v,  Stultz.  124  la.  734  Accord,  But  see  Indiana,  Bums'  Ann.  Stat., 
1914,  §§  5624-6525;  Texas,  McEachin's  Qvil  Stat.,  arts.  6601-^602. 

As  to  constitutionality  of  such  legislation,  see  Ex  parte  Hodges,  87  Cal.  162. 


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SECT,  in.]       GALVESTON,  H.  A  S.  A.  R.  CO.  V.  SPINKS  495 

GALVESTON,  H.  &  S.  A.  R.  CO.  v.  SPINKS 

Court  of  Civil  Appeals,  Texas,  May  28,  1896. 

Reported  in  13  Texas  CivU  Appeals,  542. 

Williams,  Associate  Justice.  This  case  is  submitted  upon  the  facts 
found  by  the  court  below,  upon  an  assignment  which  questions  the 
correctness  of  the  conclusion  of  law  based  upon  them.  In  brief,  those 
facts  are,  that  appellant  owns  in  fee  a  strip  of  land  upon  which  its 
railroad  is  laid,  and  on  each  side  of  which  Ue  cultivated  lands  owned 
by  appellee.  Upon  the  land  owned  by  appellant  there  stands  a  natural 
growth  of  tall  trees  which  shade  and  injure  the  crops  upon  appellee's 
adjacent  land,  and  also  saps  such  land  of  its  fertility.  For  this  injury 
to  crops  and  land  the  judgment  appealed  from  was  rendered.  No  act 
of  defendant  is  shown  beyond  the  construction  and  maintenance  of  its 
road  and  its  omission  to  cut  down  its  trees,  it  having  removed  only 
such  portion  of  them  as  was  necessary  to  permit  the  repair  of  its  road 
and  the  operation  of  its  trains.  We  know  of  no  principle  of  law  which 
authorizes  the  judgment.  The  land  and  the  trees  are  the  property  of 
appellant,  and  it  has  the  same  right  to  them  that  appellee  has  to  his 
land  and  crops.  The  exercise  of  one  right  is  not  an  invasion  of  the 
other.  If  the  presence  of  the  trees  impairs  the  productiveness  of  ap- 
pellee's land,  or  if  the  cultivation  of  the  latter  would  injure  the  trees, 
these  results  would  constitute  no  wrong  by  one  owner  to  the  other,  but 
would  only  be  the  incidents  of  their  ownership.  No  breach  of  any 
duty  owed  by  appellant  to  appellee  is  shown.  It  is  not  stated  that 
the  roots  or  the  branches  of  the  trees  penetrate  or  overhang  appellee's 
land.  If  they  did,  appellee  had  the  right  to  remove  such  roots  or 
branches  as  entered  or  overhung  his  land,  or  if  damage  was  caused  by 
them,  it  may  be  true  that  he  could  maintain  an  action  for  such  dam- 
age.   Wood  on  Nuisances,  112,  113,  306. 

But  no  such  case  is  made  here  either  in  the  statement  of  the  cause 
of  action  or  in  the  facts  found  by  the  court.  It  is  not  shown  that  ap- 
pellee has  not  kept  its  right  of  way  in  proper  condition  for  the  safe 
and  proper  operation  of  its  trains,  but  the  contrary  is  inferable  from 
the  findings.  Had  it  failed  to  do  so,  this  might  be  a  breach  of  the 
duty  which  it  owed  to  those  interested  in  the  manner  in  which  it 
conducted  its  road,  but  not  of  one  due  to  appellee  to  protect  his  land 
and  crops  from  such  damage  as  that  of  which  he  complains.  It  is 
urged  that  as  there  is  no  statement  of  facts,  we  should  presume  that 
enough  was  shown  to  sustain  the  judgment.  But  the  conclusions  of 
the  trial  judge  show  affirmatively  the  facts  upon  which  the  judgment 
is  rendered,  and  the  conclusion  of  law  based  upon  those  facts  was  ex- 
cepted to  by  appellant  in  the  court  below  and  is  erroneous.  It  is  not 
a  case  where  there  is  an  omission  to  find  some  fact,  but  one  in  which 
a  ruling  erroneous  in  law  is  grounded  upon  facts  found. 

Reversed  and  rendered. 


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496  BACHELDER  t;.  HEA6AN  [CHAP.  III. 

BACHELDER  v.  HEAGAN 

Supreme  Judicial  Court,  Maine,  July  Term,  1840. 

Reported  in  18  Maine  Reports,  32. 

The  action  was  trespass  on  the  case,  to  recover  damages,  alleged 
to  havejbeen  done  to  the  plaintiffs'  land,  and  to  the  fences  and  growth 
thereon,  by  the  negligence  of  the  defendant  in  setting  a  fire  on  his 
own  land,  near  to  the  land  of  the  plaintiffs,  and  in  not  carefully  keep- 
ing the  same. 

At  the  trial  before  Emery,  J.,  evidence  was  introduced  by  both 
parties.  The  coimsel  for  the  plaintiffs  requested  the  judge  to  instruct 
the  jury,  that  the  plaintiffs  were  entitled  to  a  verdict,  if  they  were 
satisfied  from  the  evidence,  that  the  damage  was  occasioned  by  the 
defendant's  fire,  unless  he  satisfied  them  that  it  was  not  through  neg- 
ligence or  mismanagement  on  his  part.  The  judge  instructed  the  jury, 
that  the  burthen  of  proof  was  upon  the  plaintiffs  to  satisfy  them,  be- 
yond a  reasonable  doubt,  that  the  damage  was  occasioned  by  the 
defendant's  fire,  and  through  the  carelessness  and  negligence  of  the 
defendant  in  keeping  the  same;  such  carelessness  and  negligence 
being  alleged  in  the  plaintiffs'  declaration,  and  it  not  being  contended 
by  the  plaintiffs  that  the  fire  was  wilfully  and  maliciously  set  by  the 
defendant.  On  the  return  of  a  verdict  for  the  defendant,  the  plain- 
tiffs filed  exceptions  to  the  ruling  of  the  judge.* 

The  opinion  of  the  Court  was  by 

Weston,  C.  J.  By  the  ancient  common  law,  or  custom  of  the  realm, 
if  a  house  took  fire,  the  owner  was  held  answerable  for  any  injury 
thereby  occasioned  to  others.  This  was  probably  founded  upon  some 
presumed  negUgence  or  carelessness,  not  susceptible  of  proof.  The 
hardship  of  this  rule  was  corrected  by  the  statute  of  6  Ann.  c.  31, 
which  exempted  the  owner  from  liability,  where  the  fire  was  occasioned 
by  accident.  The  rule  does  not  appear  to  have  been  applied  to  the 
owner  of  a  field,  where  a  fire  may  have  been  kindled.  It  may  fre- 
quently be  necessary  to  bum  stubble  or  other  matter  which  encum- 
bers the  ground.  It  is  a  lawful  act,  unless  kiiidled  at  an  improper 
time  or  carelessly  managed.  Baron  Comyns  states,  that  an  action  of 
the  case  lies,  at  common  law,  against  the  owner  of  a  house  which 
takes  fire,  by  which  another  is  injured,  and  adds,  "  so  if  a  fire  be 
kindled  in  a  yard  or  close,  to  bum  stubble,  and  by  negligence  it  bums 
com  in  an  adjoining  close."  Com.  Dig.  Action  of  the  Case  for  Neg- 
ligence, A.  6. 

In  Clark  v.  Foot,  8  Johns.  R.  421,  it  was  held,  that  if  A.  sets  fire 
to  his  own  fallow  ground,  as  he  may  lawfully  do,  which  communicates 
to  and  fires  the  woodland  of  B.,  his  neighbor,  no  action  lies  against 

^  Argument  omitted. 


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SECT.  III.]  BACHELDER  V.  HEAGAN  497 

A.,  unless  there  was  some  negligence  or  misconduct  in  him  or  his  serv- 
ants. And  this  is  a  fair  illustration  of  the  common  law,  upon  which 
the  action  depends.  Negligence  or  misconduct  is  the  gist  of  the  ac- 
tion. And  this  must  be  proved.  In  certain  cases,  as  in  actions  against 
innkeepers  and  common  carriers,  it  is  presumed,  by  the  policy  of  the 
law,  where  property  is  lost  which  is  confided  to  their  care.  But  in 
ordinary  cases,  of  which  the  one  before  us  is  not  an  exception,  where 
the  action  depends  on  negligence,  the  burthen  of  proof  is  upon  the 
plaintiff.  This  is  common  learning,  and  applies  to  all  affirmative 
averments  necessary  to  maintain  an  action.  The  defendant's  fire  was 
lawfully  kindled  on  his  own  land.  It  is  an  element  appropriated  to 
many  valuable  and  useful  piu*poses;  but  which  may  become  destruc- 
tive from  causes  not  subject  to  hmnan  control.  Hence  the  fact,  that 
an  injury  has  been  done  to  others,  is  not  in  itself  evidence  of  negli- 
gence. The  party  who  avers  the  fact  is  bound  to  satisfy  the  jury 
upon  this  point,  before  he  can  be  entitled  to  a  verdict.  In  our  opinion, 
the  direction  of  the  presiding  judge  was  correct  as  to  the  burthen  of 
the  proof.  Judgment  on  the  verdicts 

1  Edwards  v,  Massingill,  3  Ala.  App.  406;  Kansas  City  R.  Co.  v.  Wilson.  (Ark.) 
171  S.  W.  484:  Bullock  v.  Porter,  2  Boy ce,  180;  Talmadce  v.  Central  R.  Co.,  125 
Ga.  400;  Beckham  v.  Seaboard  Ry.,  127  Ga.  550;  Pittsburgh  R.  Co.  v.  Culver, 
60  Ind.  469:  Brummit  v,  Fumess,  1  Ind.  App.  401:  Hanlon  v.  Ingram,  3  la.  81; 
Johnson  v.  Veneman,  75  Kan.  278;  Needham  v.  King,  95  Mich.  303;  Bolton  v. 
Calkins,  102  Mich.  69;  Stefifens  v.  Fisher,  161  Mo.  App.  386;  Bock  v.  Grooms,  2 
Neb.  Unofif.  803;  Read  v.  Pennsylvania  R.  Co.,  44  N.  J.  Law,  280;  Clark  v.  Foot, 
8  Johns.  421;  Stuart  v,  Hawley,  22  Barb.  619;  Hitchcock  v.  Riley,  44  Misc.  260; 
McDermott  v.  Consolidated  Ice  Co..  44  Pa.  Super.  Ct.  445;  Pfeiffer  v,  Aue,  53  Tex. 
Civ.  App.  98;  Waldy  v.  Preston  Mill  Co.,  80  Wash.  25;  Fahn  v,  Reichart,  8  Wis. 
255  Accord. 

Fires  set  by  locomotives.  As  to  liability  for  fires  set  by  locomotives,  there  is  a 
conflict.  One  view  is  that  the  plaintiff  must  establish  ne^gence,  as  in  other  cases. 
Garrett  v.  Southern  R.  Co.,  (C.  C.  A.)  101  Fed.  102;  Pittsburgh  R.  Co.  v.  Hixon, 
110  Ind.  225  (changed  by  statute);  Louisville  R.  Co.  v.  Ha^jard,  161  Ky.  317; 
Wallace  v.  New  York  R.  Co.,  208  Mass.  16  {res  ipsa  lomiitur  mapplicable);  New 
England  Box  Co.  v.  New  York  R.  Co.,  210  Maas.  465;  Fero  v.  Buffalo  R.  Co.,  22 
N.  Y.  209;  Peck  v.  New  York  R.  Co.,  165  N.  Y.  347;  Campbell  v.  Baltimore  R. 
Co..  58  Pa.  Super.  Ct.  241. 

Another  view  is  that  proof  that  the  fire  was  due  to  sparks  or  coals  from  an 
engine  makes  a  prima  facie  case  of  ne^igenoe  or  even  casts  upon  the  company  Uie 
burden  of  disproving  negligence.  McCiulen  v.  Chicago  R.  Co.,  (C.  C.  A.)  101  Fed. 
66;  Woodward  v.  Chicago  R.  Co.,  (C.  C.  A.)  145  Fed.  577  (statute);  Erickson  v. 
Pennsylvania  R.  Co.,  (C.  C.  A.)  170  Fed.  572  (statute);  Alabama  R.  Co.  v.  Johns- 
ton, 128  Ala.  283;  St.  Louis  R.  Co.  v.  Trotter,  89  Ark.  273  (changed  by  statute); 
Florida  R.  Co.  v.  Welch,  53  Fla.  145  (statute);  Southern  R.  Co.  v.  Thompson,  129 
Ga.  367  (statute);  Gsbum  v.  Oregon  R.  Co.,  15  Idaho,  478;  American  Strawboard 
Co.  V.  Chicago  R.  Co.,  177  111.  513;  Kennedy  v.  Iowa  Ins.  Co.,  119  la.  29  (sUt- 
ute);  Atchison  R.  Co.  v.  Geiser.  68  Kan.  281;  Fuller  v.  Chicago  R.  Co.,  137  La. 
997;  Dyer  v.  Maine  R.  Co.,  99  Me.  195;  Baltimore  R.  Co.  v.  Dorsey,  37  Md.  19; 
Continental  Ins.  Co.  v.  Chicago  R.  COy  97  Minn.  467;  Alabama  R.  Co.  v.  Barrett, 
78  Miss.  432;  Miller  v.  St.  Louis  R.  Co.,  90  Mo.  389;  Rogers  v.  Kansas  City  R. 
Co.,  52  Neb.  86;  Laird  v.  Connecticut  R.  Co.,  62  N.  H.  254  (statute);  Goodman  v. 
Lehigh  R.  Co.,  78  N.  J.  Law,  317  (statute);  North  Fork  Lumber  Co.  v.  Southern 
R.  Co.,  143  N.  C.  324-  Missouri  R.  Co.  v.  Gentry,  31  Okl.  579  (but  changed  by 
statute);  Anderson  v.  Oregon  R.  Co.,  45  Or.  211;  Hutto  v.  Seaboard  Ry.,  81  S.  C. 
567;  Gulf  R.  Co.  v.  Johnson,  92  Tex.  591;  Ide  v.  Boston  R.  Co.,  83  Vt.  66  (stat- 
ute); Norfolk  R.  Co.  v.  Thomas,  110  Va.  622;  Thorgrimson  v.  Northern  R.  Co., 


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498  HEEG  V.  LIGHT  [CHAP.  III. 

HEEG  V.  LIGHT 

Court  op  Appeals,  New  Yobk,  April  6, 1880. 

Reported  in  80  New  York  Reporter  579. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  Second  Judicial  Department,  affirming  a  judgment  in  favor  of 
defendant,  entered  upon  a  verdict.    (Reported  below,  16  Hun,  257.) 

This  action  was  brought  to  recover  damages  for  injuries  to  plain- 
tiff's buildings,  alleged  to  have  been  caused  by  the  explosion  of  a 
powder  magazine  on  the  premises  of  defendant;  also  to  restrain  the 
defendant  from  manufacturing  and  storing  upon  his  premises  fire- 
works or  other  explosive  substances. 

The  facts  are  sufficiently  stated  in  the  opinion. 

Miller,  J.  This  action  is  sought  to  be  maintained  upon  the  ground 
that  the  manufacturing  and  storing  of  fire-works,  and  the  use  and 
keeping  of  materials  of  a  dangerous  and  explosive  character  for  that 
purpose,  constituted  a  private  nuisance  for  which  the  defendant  was 
liable  to  respond  in  damages,  without  regard  to  the  question  whether 
he  was  chargeable  with  carelessness  or  negligence.  The  defendant 
had  constructed  a  powder  magazine  upon  his  premises,  with  the  usual 
safeguards,  in  which  he  kept  stored  a  quantity  of  powder  which,  with- 
out any  apparent  cause,  exploded  and  caused  the  injury  complained 
of.  The  judge  upon  the  trial  charged  the  jury  that  they  must  find  for 
the  defendant,  unless  they  foimd  that  the  defendant  carelessly  and 
negUgently  kept  the  gunpowder  upon  his  premises.  The  judge  re- 
fused to  charge  that  the  powder  magazine  was  dangerous  in  itself  to 
plaintiff  and  his  property,  and  was  a  private  nuisance,  and  the  de- 
fendant was  liable  to  the  plaintiff  whether  it  was  carelessly  kept  or 
not;  and  the  plaintiff  duly  excepted  to  the  charge  and  the  refusal  to 
charge. 

We  think  that  the  charge  made  was  erroneous  and  not  warranted 
by  the  facts  presented  upon  the  trial.  The  defendant  had  erected  a 
building  and  stored  materials  therein,  which  from  their  character  were 
liable  to  and  actually  did  explode,  causing  injury  to  the  plaintiff.  The 
fact  that  the  explosion  took  place  tends  to  establish  that  the  magazine 
was  dangerous  and  liable  to  cause  damage  to  the  property  of  persons 
residing  in  the  vicinity.    The  locality  [legality  ?]  of  works  of  this 

64  Wash.  500;  Jacobs  v.  Baltimore  R.  Co.,  68  W.  Va.  618:  Moore  v.  Chicaw)  R. 
Ck)»  78  Wis.  120.  ^ 

l!n  other  jurisdictions  there  is  a  statutory  absolute  liability  for  such  fires.  St. 
Louis  R.  Ck).  V.  Cooper,  120  Ark.  595;  British  Assur.  Co.  v.  Colorado  R.  Co.,  52 
Col.  589;  Martinv.NewYorkR.  Co.,  62Coim.  331;  Pittsburrfi  R.  Co.  v.  Chap- 
pell,  183  Ind.  141;  Stewart  v.  Iowa  R.  Co.,  136  la.  182;  Murphy  v.  St.  Louis  R. 
Co^  248  Mo.  28;  Baltimore  R.  Co.  v.  Kreager,  61  Ohio  St.  312;  Midland  R.  Co. 
V.  Lynn,  38  Okl.  695:  MacDonald  v.  New  York  R.  Co.,  23  R.  1. 558;  Peoples 
Oil  Co.  V.  Charleston  R.  Co.,  83  S.  C.  630;  Jensen  v.  South  Dakota  R.  Co.,  25  S.  D. 
506.  ' 


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SECT,  in.]  HEEO  V.  LIGHT  499 

description  must  depend  upon  the  neighborhood  in  which  they  are 
situated.  In  a  city,  with  buildings  immediately  contiguous  and  per- 
sons constantly  passing,  there  could  be  no  question  that  such  an  erec- 
tion would  be  unlawful  and  unauthorized.  An  explosion  under  such 
circimistances,  independent  of  any  municipal  r^ulations,  would 
render  the  owner  amenable  for  all  damages  arising  therefrom.  That 
the  defendant's  establishment  was  outside  of  the  territorial  limits  of  a 
city  does  not  relieve  the  owner  from  responsibility  or  alter  the  case,  if 
the  dangerous  erection  was  in  close  contiguity  with  dwelling-houses  or 
buildings  which  might  be  injured  or  destroyed  in  case  of  an  explosion. 
The  fact  that  the  magazine  was  liable  to  such  a  contingency,  which 
could  not  be  guarded  against  or  averted  by  the  greatest  degree  of  care 
and  vigilance,  evinces  its  dangerous  character,  and  might  in  some 
localities  render  it  a  private  nuisance.  In  such  a  case  the  rule  which 
exonerates  a  party  engaged  in  a  lawful  business,  when  free  from 
negUgence,  has  no  appUcation.  The  keeping  or  manufacturing  of 
gunpowder  or  of  fire-works  does  not  necessarily  constitute  a  nuisance 
per  86.  That  depends  upon  the  locality,  the  quantity,  and  the  sur- 
rounding circumstances,  and  not  entirely  upon  the  degree  of  care  used. 
In  the  case  at  bar  it  should  have  been  left  for  the  jury  to  determine 
whether  from  the  dangerous  character  of  the  defendant's  business,  the 
proximity  to  other  buildings,  and  all  the  facts  proved  upon  the  trial, 
the  defendant  was  chargeable  with  maintaining  a  private  nuisance  and 
answerable  for  the  damages  arising  from  the  explosion. 

A  private  nuisance  is  defined  to  be  anything  done  to  the  hurt  or 
annoyance  of  the  lands,  tenements,  or  hereditaments  of  another.  3 
Bl.  Com.  216.  Any  unwarrantable,  unreasonable,  or  imlawful  use 
by  a  person  of  his  own  property,  real  or  personal,  to  the  injury  of 
another,  comes  within  the  definition  stated,  and  renders  the  owner  or 
possessor  liable  for  all  damages  arising  from  such  use.  Wood's  Law 
of  Nuis.,  §  1,  and  authorities  cited.  The  cases  which  are  r^arded  as 
private  nuisances  are  numerous,  and  the  books  are  full  of  decisions 
holding  the  parties  answerable  for  the  injmies  which  result  from  their 
being  maintained.  The  rule  is  of  imiversal  application  that  while  a 
man  may  prosecute  such  business  as  he  chooses  on  his  own  premises, 
he  has  no  right  to  erect  and  maintain  a  nuisance  to  the  injury  of 
an  adjoining  proprietor  or  of  his  neighbors,  even  in  the  pursuit  of  a 
lawful  trade.  Aldred's  Case,  9  Coke,  68;  Brady  v.  Weeks,  3  Barb. 
159;  Dubois  v.  Budlong,  16  Abb.  446;  Wier's  Appeal,  74  Penn.  St. 
230. 

While  a  class  of  the  reported  cases  relates  to  the  prosecution  of  a 
Intimate  business,  which  of  itself  produces  inconvenience  and  injury 
to  others,  another  class  refers  to  acts  done  on  the  premises  of  the 
owner  which  are  of  themselves  dangerous  to  the  property  and  the  per- 
sons of  others  who  may  reside  in  the  vicinity,  or  who  may  by  chance 
be  passing  along  or  in  the  neighborhood  of  the  same.    Of  the  former 


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600  HEEO  V.  LICHT  [CHAP.  III. 

class  are  cases  of  slaughter-houses,  fat  and  offal  boiling  establish- 
ments, hog-styes  or  tallow  naanufactories,  in  or  near  a  city,  which  are 
offensive  to  the  senses  and  render  the  enjoyment  of  life  and  property 
uncomfortable.  Catlin  v.  Valentine,  9  Pai.  575;  Brady  v.  Weeks, 
3  Barb.  157;  Dubois  v.  Budlong,  15  Abb.  445;  Rex  v.  White,  1  Burr. 
337;  2  Bl.  Com.  216;  Farrand  v.  Marshall,  21  Barb.  421.  It  is  not 
necessary  in  these  cases  that  the  noxious  trade  or  business  should 
endanger  the  health  of  the  neighborhood.  So  also  the  use  of  premises 
in  a  manner  which  causes  a  noise  so  continuous  and  excessive  as  to 
produce  serious  annoyance,  or  vapors  or  noxious  smells;  Tipping  v. 
St.  Helen's  Smeltmg  Co.,  4  B.  &  S.  (Q.  B.)  608;  Brill  v.  Fl^er,  23 
Wend.  354;  Kckard  v.  Collins,  23  Barb.  444;  Wood's  Law  of  Nuis., 
§  5;  or  the  burning  of  a  brick  kiln,  from  which  gases  escape  which 
injure  the  trees  of  persons  in  the  neighborhood.  Campbell  v.  Seaman, 
63  N.  Y.  568;  s.  c,  20  Am.  Rep.  567.  Of  the  latter  class  also  are 
those  where  tJie  owner  blasts  rocks  with  gunpowder,  and  the  frag- 
ments are  liable  to  be  thrown  on  the  premises  and  injure  the  adjoin- 
ing dwelling-houses,  or  the  owner  or  persons  there  being,  or  where 
persons  travelling  may  be  injured  by  such  use.  Hay  v.  Cohoes  Co., 
3  Barb.  42;  s.  c,  2  N.  Y.  159;  Tremain  v.  Cohoes  Co.,  2  N.  Y.  163; 
Pixley  V.  Clark,  35  id.  523. 

Most  of  the  cases  cited  rest  upon  the  maxim  sic  utere  tuo,  etc., 
and  where  the  right  to  the  undisturbed  possession  and  enjoyment  of 
property  comes  in  conflict  with  the  rights  of  others,  that  it  is  better, 
as  a  matter  of  public  policy,  that  a  single  individual  should  surrender 
the  use  of  his  land  for  especial  purposes  injurious  to  his  neighbor  or 
to  others,  than  that  the  latter  should  be  deprived  of  the  use  of  their 
property  altogether,  or  be  subjected  to  great  danger,  loss,  and  injury, 
which  might  result  if  the  rights  of  the  former  were  without  any  re- 
striction or  restraint. 

/The  keeping  of  gunpowder  or  other  materials  in  a  place,  or  under 
circumstances,  where  it  would  be  liable,  in  case  of  explosion,  to  in- 
jure the  dwelling-houses  or  the  persons  of  those  residing  in  close 
proximity,  we  think,  rests  upon  the  same  principle,  and  is  governed 
by  the  same  general  rules.  An  individual  has  no  more  right  to  keep 
a  magazine  of  powder  upon  his  premises,  which  is  dangerous,  to  the 
detriment  of  his  neighbor,  than  he  is  authorized  to  engage  in  any 
other  business  which  may  occasion  serious  consequences. 

The  counsel  for  the  defendant  relies  upon  the  case  of  People  r. 
Sands,  1  Johns.  78;  3  Am.  Dec.  296,  to  sustain  the  position  that  the 
defendant's  business  was  neither  a  public  nor  a  private  nuisance. 
That  was  an  indictment  for  keeping  a  quantity  of  gunpowder  near 
dwelling-houses  and  near  a  public  street;  and  it  was  held  (Spencer, 
J.,  dissenting),  that  the  fact  as  charged  did  not  amount  to  a  nuisance, 
and  that  it  should  have  been  alleged  to  have  been  negligently  and 
impro\'idently  kept.   It  will  be  seen  that  the  case  was  disposed  of  upon 


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SECT.  III.]  HEEG  t;.  LIGHT  501 

the  form  of  the  mdictment,  and  while  it  may  well  be  that  an  allega- 
tion of  negligence  is  necessary  where  an  indictment  is  for  a  public 
nuisance,  it  by  no  means  follows  that  negligence  is  essential  in  a  pri- 
vate action  to  recover  damages  for  an  alleged  nuisance.  In  Myers  v, 
Malcolm,  6  Hill,  292,  it  was  held  that  the  act  of  keeping  a  large  quan- 
tity of  gunpowder  insufficiently  secured  near  other  buildings,  thereby 
endangering  the  lives  of  persons  residing  in  the  vicinity,  amounted  to 
a  public  nuisance,  and  an  action  would  lie  for  damages  where  an  ex- 
plosion occurred  causing  injury.  Nelson,  C.  J.,  citing  People  v.  Sands, 
supra,  says:  "  Upon  the  principle  that  nothing  will  be  intended  or 
inferred  to  support  an  indictment,  the  Court  said,  for  aught  they 
could  see,  the  house  may  have  been  one  built  and  secured  for  the  pur- 
pose of  keeping  powder  in  such  a  way  as  not  to  expose  the  neighbor- 
hood; "  and  he  cites  several  authorities  which  uphold  the  doctrine 
that  where  gunpowder  is  kept  in  such  a  place  as  is  dangerous  to  the 
inhabitants  or  passengers,  it  will  be  regarded  as  a  nuisance.  The  case 
of  People  V.  Sands  is  not  therefore  controlling  upon  the  question  of 
negligence. 

Fillo  V.  Jones,  2  Abb.  Ct.  Ap.  Dec.  121,  is  also  relied  upon,  but  does 
not  sustain  the  doctrine  contended  for;  and  it  is  there  held  that  an 
action  for  damages  caused  by  the  explosion  of  fire-works  may  be  main- 
tained upon  the  theory  that  the  defendant  was  guilty  of  a  wrongful 
and  xmlawful  act,  or  of  default,  in  keeping  them  at  the  place  they 
were  kept,  because  they  were  liable  to  spontaneous  combustion  and 
explosion,  and  thus  endangered  the  lives  of  persons  in  their  vicinity, 
and  that  the  injury  was  occasioned  by  such  spontaneous  combustion 
and  explosion. 

It  is  apparent  that  negligence  alone  in  the  keeping  of  gunpowder 
is  not  controlling,  and  that  the  danger  arising  from  the  locality  where 
the  fire-works  or  gunpowder  are  kept,  is  to  be  taken  into  consideration 
in  maintaining  an  action  of  this  character.  We  think  that  the  request 
to  charge  was  too  broad,  and  properly  refused.  The  charge  however 
should  have  been  in  conformity  with  the  rule  herein  laid  down,  and  for 
the  error  of  the  judge  in  the  charge,  the  judgment  should  be  reversed 
and  a  new  trial  granted,  with  costs  to  abide  the  event. 

All  concur.  Judgment  reversed.^ 

*  State  V.  General  Stevedoring  Co.,  213  Fed.  51;  Kinney  v.  Koopman,  116  Ala. 
310;  Kleebauer  v.  Western  Fuse  Co.,  138  Cal.  497;  Simpson  v.  Du  Pont  Powder 
Co.,  143  Ga.  465;  Barnes  v,  Zettlemoyer,  25  Tex.  Civ.  App.  468  Accord. 

French  v.  Center  Creek  Powder  Co.,  173  Mo.  App.  220  Contra. 

Compare  Sloss-Sheffield  Steel  Co.  v.  Prosch,  190  Ala.  290;  Flynn  v.  Butler,  189 
Mass.  377;  Reilly  v.  Erie  R.  Co.,  72  App.  Div.  476. 


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602  dilworth's  appeal  [chap.  hi. 

DILWORTH'S  APPEAL 

Supreme  Court,  Pennsylvania,  October  9, 1879. 
Reported  in  91  Pennsylvania  State  Reports,  247. 

Appeal  from  Court  of  Common  Pleas,  No.  2,  of  Allegheny  County. 

Bill  in  equity  by  Robinson  and  forty-seven  others  against  Dilworth, 
to  restrain  Dilworth  from  erecting  a  powder  magazine  upon  his  lot  in 
Penn  Township,  Allegheny  County.  The  case  was  referred  to  a  mas- 
ter, who  recommended  that  an  injunction  should  be  refused  and  the 
bill  dismissed.  The  facts  are  set  forth  in  the  opinion  of  this  court.  The 
court  below  thought  that  the  public  interest  would  be  subserved  by 
refusing  the  injunction;  but  in  deference  to  the  authority  of  Wier's 
Appeal,  24  P.  F.  Smith,  230,  a  majority  of  the  court  entered  a  pro 
forma  decree  for  an  injunction.  Appeal  was  taken  to  the  Supreme 
Court.^ 

Trunkey,  J.  ,  [After  stating  general  principles  and  quoting  from 
the  statement  of  the  facts  in  Wier's  Appeal.] 

After  a  careful  revision  of  the  master's  report  by  the  court  below, 
the  facts  found  in  this  case,  and  which  are  well  sustained  by  proof, 
are  as  follows:  This  magazine  has  been  located  so  as  to  endanger  as 
few  persons  and  as  little  property  as  possible,  and  yet  be  reasonably 
accessible  as  a  point  of  supply  and  distribution;  it  is  more  remote 
from  population  than  the  magazines  generally  in  use  throughout  the 
United  States,  and  it  is  doubtful  if  a  better  location  could  be  made  in 
Allegheny  Coimty.  It  is  situated  about  two  miles  from  East  Liberty, 
the  nearest  closely  built-up  district,  and  is  separated  therefrom  by  in- 
tervening hills  and  ravines.  It  is  in  a  sparsely  settled  locaUty,  for 
the  vicinity  of  a  city,  and  land  near  it  has  not  been,  nor  is  it  likely  to 
be  for  some  years,  in  demand  for  building  purposes.  That  portion  of 
Lincoln  Avenue  which  terminates  at  a  point  five  hundred  feet  from 
the  magazine  is  very  little  travelled,  very  few  people  travel  it  within 
considerable  distance  of  its  terminus,  having  no  occasion  to  do  so;  it 
was  the  wildest  of  the  many  absurd  enterprises  undertaken  in  Pitts- 
burgh to  carry  city  improvements  into  wild  rural  regions,  expecting 
population  to  rapidly  follow.  The  other  public  road,  passing  within 
twenty-two  feet  of  the  magazine,  has  for  some  time  been  almost  aban- 
doned by  the  people  in  the  vicinity,  and  is  used  by  about  three 
farmers.  The  magazine  is  so  situated  that  the  force  of  an  explosion 
would  be  down  the  ravine  and  away  from  the  road.  The  greater  dis- 
tance of  this  magazine  from  a  borough,  or  closely  built-up  district, 
the  absence  of  demand  of  land  for  building  purposes,  and  the  unlikeli- 
hood of  such  demand  in  the  vicinity,  the  Uttle  travel  on  the  public 
road  which  passes  near  it,  and  the  ravine  opening  from  the  road,  are 

1  Only  part  of  case  is  given.    Argument  omitted. 


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SECT.  III.]  DILWORTH's  APPEAL  503 

the  chief  points  wherein  this  case  differs  from  Wier's  Appeal.  The 
dwellings  and  families  near  the  magazine  number  about  the  same  in 
one  as  the  other.  None  will  deny  that  the  law  protects  the  small  and 
cheap  home  as  it  does  the  large  and  costly  mansion,  and  the  rights 
of  a  tenant  are  as  sacred  as  those  of  his  landlord.  But  it  is  equally 
undeniable  that  if  a  tenant  hold  by  lease  at  will,  or  by  month,  and  his 
landlord  grants  that  a  lawful  and  necessary,  yet  offensive  or  danger- 
ous factory  or  magazine  may  be  erected,  the  tenant  has  not  a  right  of 
action  for  its  prevention.  If  such  structure  were  placed  near  tenant 
houses  occupied  by  miners,  where  the  mines  are  likely  to  be  worked 
for  considerable  time,  it  would  be  a  material  fact  to  be  weighed  with 
others  —  almost  of  like  weight  as  if  the  houses  were  owned  by  the 
occupants.  Here  the  mine  is  nearly  exhausted,  a  fact  to  be  considered 
in  reference  to  the  probable  increase  of  population  in  the  neigh- 
borhood. 

It  was  urged  that  the  location  being  only  two  hundred  and  fifty-five 
feet  from  the  boxmdary  line  of  Pittsburgh,  and  five  himdred  feet  from 
the  end  of  Lincoln  Avenue,  is  dangerous  to  life  and  property  in  the 
city.  The  facts,  as  we  have  seen,  are  that  that  end  of  the  avenue  is 
very  little  travelled,  and  is  remote  from  the  population  of  the  city; 
and,  without  question,  "  the  region  of  country  in  which  the  magazine 
is  located  is  wild  and  broken  as  to  its  general  surface,  it  is  traversed 
by  numerous  ravines  and  hills,  and  altogether  possesses  a  romantic 
and  secluded  aspect."  It  is  the  real  character  of  the  location,  with  its 
surroundings,  which  determines  its  fitness,  and  not  a  city  line  two 
miles  from  city  life,  nor  the  imused  and  useless  part  of  a  graded  and 
paved  street  extended  beyond  the  visible  city. 

Confessedly,  the  demand  for  and  consimiption  of  powder  in  Pitts- 
burgh and  vicinity  are  very  great,  and  it  is  indispensable  in  carrying 
on  important  branches  of  industry,  and  it  would  be  inimical  to  the 
business  interests  of  the  community  to  trammel  the  sale  of  it  with 
unnecessary  restrictions  and  burdens.  Besides  the  magazine  at  the 
United  States  Arsenal  there  are  no  others  in  Allegheny  County,  ex- 
cept those  of  a  single  company,  and  the  Dilworth.  In  view  of  the 
whole  case  the  master,  and  one  of  the  judges  of  the  Common  Pleas, 
thought  the  injunction  should  be  refused.  The  majority  of  the  court, 
in  a  considerate  opinion,  concluded  that  the  public  interest  would  be 
subserved  by  refusing  the  injunction,  and  that  the  complainants  were 
not  entitled  to  an  injunction,  but  for  the  ruling  in  Wier's  Appeal,  on 
the  authority  of  which  they  felt  constrained  to  grant  it.  A  decree  was 
entered,  with  direction  that  it  would  not  be  enforced  until  the  defend- 
ant could  be  heard  on  appeal.  We  fully  agree  with  the  court  below, 
except  that  we  do  not  think  the  principles  in  Wier's  Appeal,  applied 
to  the  facts  in  this  case,  require  an  injunction  to  be  granted. 

Decree  reversed.    Bill  dismissed. 


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504  KNUPFLE  V.  KNICKERBOCKER  ICE  CO.       [CHAP.  HI. 

Section  IV 
Violation  of  Statutory  Duty 

KNUPFLE  V.  KNICKERBOCKER  ICE  CO. 

Court  of  Appeals,  New  York,  March  15,  1881. 

Reported  in  84  New  York  ReportSy  488. 

Per  Curiam.^  One  of  the  principal  questions  litigated  upon  the 
trial  of  this  action  related  to  the  alleged  negligence  of  the  driver  of 
the  defendant's  team  in  leaving  the  horses  untied  in  the  street,  "which, 
it  was  claimed,  was  the  cause  of  the  death  of  the  intestate.  Among 
other  evidence  to  establish  such  negligence,  the  plaintiff  offered  and 
introduced  in  evidence,  against  the  objection  of  the  defendant,  an  or- 
dinance of  the  city  of  Brooklyn,  prohibiting  the  leaving  of  any  horse 
or  horses  attached  to  a  vehicle  standing  in  any  street  without  a  person 
in  charge,  or  without  being  secured  to  a  tying  post.  We  think  there 
is  no  question  as  to  the  admissibility  of  such  testimony  xmder  the 
decisions  of  this  court,  and  the  exception  taken  to  the  ruling  in  this 
respect  cannot  be  upheld. 

A  more  serious  question  arises  as  to  the  effect  to  be  given  to  the  evi- 
dence referred  to.  At  the  close  of  the  charge  the  plaintiff's  counsel 
requested  the  judge  to  charge  the  jury  that  a  violation  of  an  ordinance 
of  the  city  is  necessarily  negUgence;  and  the  judge  replied:  "  it  is; 
I  have  so  told  the  jury;  it  is  negligence;  "  and  the  defendant's  coun- 
sel excepted.  We  think  there  was  error  in  the  charge  thus  made,  and 
that  the  judge  went  too  far  in  holding  that  a  violation  of  the  ordi- 
nance was  negligence  of  itself. 

The  question  presented  has  been  the  subject  of  consideration  in  this 
court,  as  will  be  seen  by  reference  to  the  reported  cases.  In  Brown 
V.  B.  &  State  Line  R.  R.  Co.,  22  N.  Y.  191,  the  court  charged  the  jury 
that  if  the  injury  occurred  while  defendant's  train  was  running  m 
violation 'of  a  city  ordinance  and  at  a  rate  of  speed  forbidden  by  it, 
and  was  occasioned  by  or  would  not  have  occurred  except  for  such 
violation,  the  defendant  was  liable,  and  this  direction  was  held  to  be 
error.  This  doctrine  is,  however,  repudiated  in  Jetter  v.  N.  Y.  &  H. 
R.  R.  Co.,  2  Abb.  Ct.  App.  Dec.  458,  as  well  as  in  subsequent  cases. 
In  the  last  case  cited  it  was  held  that  a  party  in  cloing  a  lawful  act, 
where  there  is  no  present  danger,  or  appearance  of  danger,  has  a  right 
to  assume  that  others  will  conform  their  conduct  to  the  express  re- 
quirements of  the  law  and  not  bring  injury  upon  him  by  its  violation. 
It  is  also  strongly  intimated  that  a  violator  of  such  an  ordinance  is  a 
wrong-doer  and  necessarily  negligent,  and  a  person  injured  thereby  is 

^  Statement  and  arguments  omitted. 


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SECT.  IV.]        KNUPFLE  V.  KNICKERBOCKER  ICE  CO.  505 

entitled  to  a  civil  remedy.  The  distinct  point  now  raised  was  not, 
however,  fairly  presented  by  the  charge  to  which  exception  was  taken, 
which  was  not  otherwise  erroneous.  In  Beisegel  v.  N.  Y.  C.  R.  R. 
Co.,  14  Abb.  Pr.  [N.  S.j  29,  it  was  held  that  it  was  some  evidence  of 
negligence  to  show  that  an  ordinance  was  violated,  and  the  charge  of 
the  judge  upon  the  trial  to  that  effect  was  upheld.  In  McGrath  v. 
N.  Y.  C.  &  H.  R.  R.  R.  Co.,  63  N.  Y.  522,  it  was  laid  down  that  the 
violation  or  disr^ard  of  an  ordinance,  while  not  conclusive  evidence 
of  negligence,  is  some  evidence  for  the  consideration  of  the  jury.  In 
Massoth  V.  D.  &  H.  Canal  Co.,  64  N.  Y.  524,  the  cases  are  reviewed, 
and  it  was  said  to  be  an  open  question  in  this  court  whether  the  vio- 
lation of  a  mimicipal  ordinance  was  n^ligence  per  se;  and  it  was  held 
that  the  city  ordinance  being  submitted  to  the  jury  with  the  other 
evidence  as  bearing  upon  the  question,  but  not  as  conclusive,  there 
was  no  error  in  the  parts  of  the  charge  excepted  to.  The  result  of  the 
decisions,  therefore,  is,  that  the  violation  of  the  ordinance  is  some  evi- 
dence of  negligence,  but  not  necessarily  negligence.  The  judge  not 
only  assented  xmqualifiedly  to  the  request  made,  but  he  also  said  that 
it  was  negligence;  and  thus  went  further  than  to  hold,  within  the 
cases  cited,  that  it  was  evidence  of  negligence. 

The  coimsel  for  the  plaintiff  urges  that  even  if  erroneous,  the  charge 
worked  defendant  no  injury.  This  position  is  based  upon  the  theory 
that  as  the  question  was  submitted  to  the  jury  as  one  of  fact,  whether 
the  team  was  left  loose  and  unattended,  and  as  the  judge  had  charged 
that  the  ordinance  adds  very  little  to  what  would  have  been  the  rule 
without  it,  and  that  it  was  negligence  to  leave  a  horse  untied  or  not 
in  charge  of  some  one,  in  a  public  street,  whether  there  is  an  ordi- 
nance or  not,  they  must  have  found  that  they  were  so  left,  and,  there- 
fore, the  plaintiff  was  entitled  to  a  verdict.  The  difl&culty  about  this 
position  is,  that  the  question,  whether  leaving  the  horses  xmtied  was 
negligence,  was  one  of  fact  depending  upon  the  circumstances  attend- 
ing the  case,  and  while  the  jury  may  have  found  in  favor  of  the  de- 
fendant as  to  this,  their  verdict  may  have  resulted  from  the  charge 
made  as  to  the  effect  of  the  ordinance.  It  cannot,  therefore,  be  said 
that  by  the  portion  of  the  charge  which  has  been  considere'd  the  de- 
fendant was  not  prejudiced. 

For  the  error  in  the  charge,  without  considering  the  other  questions 
raised,  the  judgment  should  be  reversed  and  a  new  trial  granted,  costs 
to  abide  event.    '  ^ 

All  concur,  except  Miller  and  Danforth,  JJ.,  dissenting,  and 
Rapallo,  J.,  absent.  Judgment  reversed^ 

»  Wright  V.  Maiden  R.  Co.,  4  All.  283;  Nelson  v.  Bumham  &  Morrill  Co.,  114 
Me.  213;  Fluker  v,  Ziegele  Brewing  Co.,  201  N.  Y.  40;  Beck  v,  Vancouver  R.  Co., 
25  Or.  32  Accord.  See  also  Newcomb  v.  Boston  Protective  Department,  anUf  p. 
391;  Bourne  v.  Whitman.  anUy  p.  400,  note  1. 

Platte  &  Denver  Canal  Co.  v.  Dowell,  17  Col.  376:  Richardson  v.  El  Paso  Min. 
Co.,  61  Col.  440;  Lindsay  v,  Cecchi,  3  Boyce,  133;  Toledo  R.  Co.  v,  O'Connor,  77 


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506  HOLMAN  t;.  CHICAGO,  R.  I.  A  P.  R.  CO.        [CHAP.  HI. 

HOLMAN  V.  CHICAGO,  ROCK  ISLAND  &  PACIFIC  R.  CO. 

Supreme  Court,  Missouri,  May  Term,  1876. 

Reported  in  62  Missouri  Reports,  562. 

Hough,  J.^  This  was  an  action  to  recover  damages  for  the  kilh'ng 
of  a  cow,  belonging  to  the  plaintiff,  by  a  train  on  defendant's  railroad 
in  a  street  of  the  town  of  Cameron. 

The  evidence  given  at  the  trial  is  stated  in  the  bill  of  exceptions  in 
the  following  language:  "  The  plaintiff,  to  maintain  the  issues  on  his 

HI.  391;  United  States  Brewing  Co.  v.  Stoltenberg,  211  HI.  531;  Fresto-Lite  Co. 
V,  Skeel,  182  Ind.  593;  Correll  v.  Burlington  R.  Co.,  38  la.  120;  Schlereth  v.  Mis- 
souri R.  Co.,  96  Mo.  509;  Brannock  v.  Elmore.  114  Mo.  55:  Olson  v,  Nebraska  Tel. 
Co.,  83  Neb.  735;  Texas  R.  Co.  v.  Brown,  11  Tex.  Civ.  App.  503;  Smith  v.  Mil- 
waukee Builders'  Exchange,  91  Wis.  360  Contra. 

In  Evers  v,  Davis,  86  N.  J.  Law,  196,  202,  Garrison,  J.,  says: 
"  The  question  then  is,  What  is,  upon  common  law  prmdples,  the  effect  of  stat- 
utes such  as  the  one  we  are  considering  upon  the  action  of  negligence  ?  The 
familiar  expressions  that  the  breach  of  such  a  statute  is  '  negligence  per  se'  or  ia 
*  prima  facie  evidence  of  negligence '  seem  to  me  to  postpone  elucidation  rather 
than  to  contribute  to  it,  while  the  implication  that  proof  of  a  breach  of  a  public 
statute  will  support  a  private  recovery  is  positively  misleading. 

A  fact  constantly  to  be  borne  in  mind  in  tracing  the  legal  emK^  of  such  statutes 

Jajthat  thSLQS^gence  that  is  essential  to  the  action  of  ne^gence  is  not  sdldlj"  in 
the  overt  act  tB&t  produced  the  injury  complained  of,  but  may  lie  in  tha  fa^liirft  to 

I  foresee  the  danger  likely  to  result  from  the  Hning  of  mi^h  <u»f  *  i  ntngAr  rAa^ar^naMy 
to  be  loredMh  at  the  time  ot  acting,  is  the  established  test  of  negligence  '  says  the 

I.  writer  aJready  cited.  Of  negligence  of  this  sort  it  may  be  said  that  it  is  common 
to  all  phases  of  the  action,  which  cannot  be  said  of  the  mere  overt  act.  which  may 
not  be  an  act  of  neglect  or  omission  at  all,  but,  on  the  contrary,  one  ot  affirmative 
commission,  e.  g^  tne  blowing  of  a  locomotive  whistle  (Bittle  v.  Camden  and  At- 
lantic Railroad  Co.,  55  N.  J.  L.  615),  the  discharge  of  steam  TMumma  v.  Easton 
and  Amboy  Railroad  Co.,  73  Id.  653)  or  the  extraordinary  lurching  of  a  train 
(Burr  V,  Pennsylvania  Railroad  Co.,  64  Id.  30).  But  whether  the  overt  act  be 
one  of  omission  or  of  commission,  and  whether  the  conduct  of  the  defendant  be 
stated  in  terms  of  '  duty '  or  of  '  fault,'  thr  ynp  rnmman  dnnnminntnr,  nn  tn  speak, 

'lat  we  may  call discoverabledanger: 
ijngaiscovered  in  adj^mi^TfagdSn 


of  th^  action  of  nftprli|^nnft  is  tl^JH  ftlftmftnf.  nf  what  we  may  call  discoverabledanger; 
that  is  to  say,  ^dj^^xtnat^Seii^cepfame^^  in  adj^mceTfagdan 

or  inaction  by  tKe^frerciSeortK^tTO^eeorcfi^"^^  to  exercise 

he  becomes  civilly  liable  for  the  consequences  of  his  conduct.  Now,  it  is  precisely 
upon  this  element  of  discoverable  danger  that  piy|i|in  ptati^^  oy  ordinances  act, 
and  they  do  this  not  by  giving  to  the  plaintiff  a  right  of  action  he  did  not  nave 
before,  but  Jay  their  operation  upon  what  we  may  call  the  common  law  conscience 
of  the  defenclant.  beiCer  kliOWU  to  08  In  Itfl  PefflOfllfled  tCilhn  oi  *  the  ordmarv  Pm- 
'dent  man,'  the  familiar  fiction  designed  by  the  common  law  to  aid  juries,  when 
deciding  what  was  the  proper  thing  for  a  man  to  do,  to  lose  sight  of  the  personal 
point  of  view  of  that  particular  man  and  to  base  their  judgment  upon  a  general 
standard  which  in  the  final  assize  is  what  the  jury  itself  thinks  was  the  proper 
thing  to  do. 

Now  this  ordinary  prudent  man  of  common  law  creation  must  in  the  nature  of 
things  be  regarded  as  a  law-abiding  citizen  to  whom,  as  is  pointed  out  by  Dean 
Thayer  in  the  article  referred  to,  it  would  be  an  unjust  reproach  to  suppose  that, 
knowing  the  statute  —  for  upon  familiar  principles  he  can  claim  no  benefit  from 
his  ignorance  of  it  —  he  would  break  it,  reasonably  believing  that  it  was  a  prudent 
thing  for  him  to  do^  and  that  in  all  probability  no  harm  would  come  of  it. 

In  ot|iftr  Y^ords^  it  is  in<^nnHiflti*Titf  wi^^^''^^'"*^^  JTudence  for  an  individual  to 
«fit  "Pj^«  yrivftte  jiif|p;ni^pt.  Affftinpf.  ihfd.  of  the  lawfuiry  dOMtituted  piiblic  author^ 
i^.   We  must  assume,  therefore,  that  the  ordinary  prudfeflt  tiJAn  wouMngtThrstteh 

^  Arguments  omitted. 


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SECT.  IV.]         HOLMAN  V.  CHICAGO,  E.  I.  A  P.  E.  CO.  507 

part,  introduced  evidence  tending  to  show,  that  the  bell  was  not  rung, 
nor  the  whistle  sounded  on  the  train  mentioned  in  his  statement,  as  it 

a  thing  since  to  do  so  would  be  to  change  his  entire  nature  and  to  forego  the  very 
traits  that  brought  him  into  existence.  He  would,  in  fine,  cease  to  be  the  pattern 
man  he  must  continue  to  be  in  order  to  be  at  all. 

Upon  common  law  principles,  therefore,  when  the  legislature  has  by  public 
statute  established  a  certain  standard  of  conduct  in  order  to  prevent  a  danger  that 
it  foresaw^  it  has  in  this  regard  forewarned  the  *  ordinary  prudent  man '  and 
through  hun  the  defendant  in  a  civil  action,  whose  conduct  must  always  coincide 
with  this  common  law  criterion.  Such  danger,  therefore,  does  not  have  to  be 
proved  by  the  plaintiff,  since  there  is  no  longer  room  for  a  reasonable  difference  of 
opinion,  for  by  his  breach  of  the  statute  the  defendant,  through  his  conmion  law 
conscience,  is  charged  with  knowlyly^  that,  if  injury  enani^fl  hft  will  {laye  acted  at 
hisDeriL  "*""'    \  / 

'  Tne  court  therefore  should  so  instruct  the  jury,  whether  such  instruction  be 
couched  in  the  terms  of  the  defendant's  duty  to  perform  or  of  his  culpability  for 
neglect,  or  of  his  liability  for  the  result  of  his  action  or  inaction,  as  the  case  may 
be;  and  thus  upon  common  law  principles  the  plaintiff  in  an  action  of  negli^nce 
obtains  the  benefit  of  the  statute  if  he  oe  one  of  the  class  for  whose  protection  it 
was  enacted  and  the  breach  of  such  statute  was  the  efficient  cause  of  the  injury  of 
which  he  complains." 

In  Smith  t;.  Mine  &  Smelter  Co.,  32  Utah,  21,  30,  Frick,  J.,  says: 

"  The  court  instructed  the  jury  in  substance  that,  if  they  foimd  from  the  evi- 
dence that  the  appellant  had  violated  the  city  ordinance  in  re^ct  to  keepine  or 
storing  explosives,  such  violation  constituted  negligence  per  ae.  Counsel  insist  that 
such  is  not  the  law;  that  it  would  be  prima  facie  negligence  at  most.  As  to 
whether  a  violation  of  a  law  or  ordinance  constitutes  negligence  per  se  depends  in 
a  large  measure  upon  the  nature  of  the  law  or  ordinance.  When  a  standard  of  duty 
or  care  is  fixed  by  law  or  ordinance,  and  such  law  or  ordinance  has  reference  to  the 
safety  of  life,  limb,  or  property,  then,  as  a  matter  of  necessity,  a  violation  of  such 
law  or  ordinance  constitutes  negligence.  In  any  case  the  standard  is  usually  de- 
fined as  that  degree  of  care  that  men  of  ordinary  care  and  prudence  ususdly  exer-  ». 
cise.  But,  when  the  standard  is  fixed  by  law  or  ordinance,  how  can  one  be  heard  I 
to  say  that  he  exercised  care  in  exceedmg,  or  in  refraining  to  comply  with,  the  I 
standard  fixed  ?  There  is,  in  such  cases,  no  comparison  to  be  macfe.  Care  and 
prudence  alone  cannot  excuse.  Exceeding  or  disregarding  the  standard  of  care 
imposed  must  be  held  to  be  negligence,  if  it  is  anything.  If  it  is  held  not  to  be 
such  per  se,  it  simply  amounts  to  this:  That  it  is  for  the  jury  to  say  whether,  in 
violating  a  law  or  ordinance  fixing  a  standard  of  care  to  be  observed  the  law  was 
carefully  or  negligently  violated.  The  violation,  thus  in  and  of  itself,  would  mean 
nothing,  and  one  would  be  permitted  to  violate  the  law  with  impunity,  provided 
the  jury  find  it  to  have  been  carefully  done.  Neither  is  it  an  answer  to  say  that 
the  violation  may  have  been  caused  by  the  act  of  God  or  unavoidable  accident.  If 
such  be  the  case,  then  the  act  constituted  no  violation  in  law,  and  when  there  is  no 
violation  there  would  be  no  negligence  arising  out  of  such  act  or  acts  alone,  and 
the  jury  would  be  required  to  find  whether  the  act  or  acts  complained  of  con- 
stituted a  violation,  as  above  indicated,  or  not.  If  they  foimd  that  the  law  was 
disregarded,  but  that  it  was  occasioned  oy  a  higher  power  or  through  unavoidable 
accident,  then  there  would  be  no  violation  by  the  person  charged,  and  hence  no 
negligence  imputable  to  him  from  that  act  ^one.  •  But  if  they  found  that  he  had 
violated  the  law  by  his  own  act,  or  by  the  acts  of  others  chargeable  to  him,  then 
there  would  be  ne^igence  per  se.  This  negligence,  however,  standing  alone,  is  not 
civilly  actionable.  The  negligence  must  in  all  cases  be  found  to  be  tne  proximate 
cause  of  the  injury.  The  court  instructed  the  jury  that  unless  they  found  thatthe 
negligence,  if  they  found  negligence  as  above  stated,  was  the  proximate  cause  of  the 
injury  complained  of,  the  respondent  could  not  recover.  This,  we  think,  is  a  cor- 
rect statement  of  the  law  pertaining  to  ordinances  such  as  the  one  in  question  here., 
Wft  j9  not.  >^n1H  f.hftf.  ft  vinlftt.inn  of  aU  laws  or  Ordinances  constitutes  nc 
pezLflg^but  we  do  hold  that  tt]^  violation  of  ordinances  designed  for  the  i 
lifft;  iimbj  or  pnipfiity,  does  constitute  negiigence  per  se,  and  tnis.  we 
Riiymnrti>H  hy  the  clcy  weifi;ht"orauthoriti.^^ 

Tt  is  sometimes  said  that  violation  ot  a  duty  so  imposed  is  "  prima  fade  evidence 
of  negligence; "  Giles  v.  Diamond  State  Iron  Co.,  7  Houst.  463;  True  t;.  Woda, 


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508  HOLMAN  V.  CHICAGO,  R.  I.  &  P.  E.  CO.        [CHAP.  IH. 

approached  and  ran  over  the  cow  in  controversy;  that  the  cow  was 
killed  on  defendant's  railroad  on  a  public  travelled  street  of  the  town 

104  HI.  App.  15:  Wabash  R.  Co.  t;.  Kamradt,  109  HI.  App.  203;  Mize  v.  Rocky 
Mountain  Tel.  Co.,  38  Mont.  521;  Briggs  v.  New  York  R.  Co.,  72  N.  Y.  26;  Acton 
V.  Reed,  104  App.  Div.  507. 

A  distinction  between  a  statute  and  a  municipal  ordinance  has  been  urged. 
Philadelphia  R.  Co.  v,  Ervin,  89  Pa.  St.  71;  Lederman  v.  Pennsylvania  R.  Co.,  165 
Pa.  St.  118;  Riegert  v.  Thackery,  212  Pa.  St.  86. 

In  Ubehnann  v.  American  Ice  Co.,  209  Pa.  St.  398,  400,  Brown,  J.,  says: 
"  When  negligence  is  charged  it  must  be  proved.  Proof  of  the  violation  of  an 
ordinance  regulating  or  relating  to  conduct  alleged  to  have  been  negli^nt  is  not  in 
itself  conclusive  proof  of  the  negli^nce  charged.  The  ordinance  and  its  violation 
are  matters  of  evidence,  to  be  considered  with  all  other  evidence  in  the  case:  Lane 
V.  Atlantic  Works,  111  Mass.  136.  But  this  rule  is  limited  to  cases  in  which  the 
ordinance  relates  to  the  alleged  negligent  act  under  investigation.  Here,  as  stated, 
it  was  the  use  of  an  alleged  defective  shifting  rod  in  the  elevator.  Ordinances  ana 
their  violation  are  admissible,  not  as  substantive  and  sufficient  proof  of  the  negU- 
genoe  of  the  defendant,  but  as  evidence  of  municipal  expression  of  opinion,  on  a 
matter  as  to  which  the  municipal  authorities  had  acted,  that  the  defendant  was 
ne^gent,  and  are  to  be  taken  into  consideration  with  all  the  other  facts  in  the 
case.  Illustrations  of  this  are  found  in  several  of  our  later  cases.  In  Lederman  v, 
P^flYlir«^nia  ttftilrAo/^  O^  ^  IftR  fft,  1  Ig,  onc  pf  tlift ^giiftHfioT^ff  wfw  f.t^P  imfHift  rate  of 
SPSed  at  which  the  d<^fftpdftnf.  finmpany  wfta  ninni|^y  ifg  Aitra  tt^j-pugh  the  citV  of 

X^j\itMfj^r^  M\n  wA  hftiri  that,  t.hft  ftrHinanfift  in  relation  to  the  Speed  ot  railway  trams 
within  the  city  limits  had  been  properly  admitted.  An  ordinance  of  the  city  of 
Philadelphia  requires  all  vehicles,  including  bicycles,  to  keep  to  the  risht,  and,  in 
Foote  V.  American  Product  Co.,  196  Pa.  190,  where  the  rider  of  the  bicycle  had 
conformed  to  this  ordinance,  and  the  driver  of  the  wagon  that  ran  into  him  had 
not,  we  said,  throusji  our  Brother  Mestrezat:  *  While  the  ordinance  in  itself  was 
not  evidence  of  negUgenoe,  it  may  be  considered  with  other  evidence  in  ascertain- 
ing whether  the  defendant  was  guilty  of  negligence.'  When  the  suit  is  a^inst  the 
municipality  itaelf ,  and  it  is  charged  with  ne^gence,  due  to  the  dereliction  of  its 
employees,  their  violation  or  disregard  of  its  own  regulations  and  ordinances  re- 
latmg  to  tne  matter  under  investigation  are  proof  of  such  dereliction,  though  not 
necessarily  of  the  specific  negligence  charged,  which,  as  in  all  other  cases,  must  be 
proved  by  proper  and  satisfactory  evidence.  The  dereliction  of  the  municipal  em- 
ployees is  to  be  taken  into  consideration  with  the  other  facts  in  the  case,  upon  proof 
of  which  the  plaintiff  relies  to  sustain  his  allegation  of  ne^gence.  An  iluistration 
of  this  is  Herron  v.  The  City  of  Pittsburg,  204  Pa.  509,  which  was  an  action  against 
the  city  to  recover  damages  for  personal  injuries  sustained  by  a  boy  from  contact 
with  a  live,  naked  telephone  wire  used  in  the  police  service  of  the  city^  and  it 
appeared  that  the  break  in  the  wire  was  known  to  the  police  officials  within  an 
hour  after  it  had  occurred,  and  that  it  was  also  known  to  them  to  be  in  close 
proximity  to  other  wires,  some  of  which  carried  strong  and  dangerous  currents  of 
electricity.  We  regarded  as  proper  the  admission  of  the  ordinance  of  the  city  and 
the  rules  of  the  police  department  relating  to  the  inspection  and  use  of  the  city 
wires. 

The  ordinance  of  April  10.  1894,  provides  for  the  inspection  of  elevators  by  in- 
spectors duly  appointed  by  tne  city  of  Philadelphia,  and  makes  it  the  duty  of  the 
owner  or  operator  of  an  elevatoi:,  after  its  inspection,  to  procure  from  the  inspector 
a  certificate  that  it  is  in  condition  to  be  operated,  and  to  expose  the  certificate  to 
public  view  as  near  as  possible  to  the  elevator  car.  This  ordmanoe  does  not  make 
it  the  duty  of  one  owning  or  operating  an  elevator  to  demand  an  inspection,  and  it 
is  only  after  the  inspector  has  inspected  that  he  must  procure  and  expose  the  cer- 
tificate. But,  even  if  there  had  been  an  inspection  here,  and  the  defendant  com- 
pany had  not  procured  and  exposed  the  proper  certificate,  its  failure  to  do  so  is  not 
the  negligence  charged  against  it  that  resulted  in  the  plaintiff's  injury,  imd  the 
ordinance  clearly  had  no  proper  place  in  his  evidence." 

Breach  of  rules  of  a  private  corporation,  see  Hoffman  v.  Cedar  Rapids  R.  Co., 
157  la.  655;  Stevens «;.  Boston  R.  Co.,  184  Mass.  476;  Virginia  R.  Co.  v.  Godsey, 
117  Va.  167. 

See  Thayer,  Public  Wrong  and  Private  Action,  27  Harvard  Law  Rev,  317. 


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SECT.  IV.]         HOLMAN  V.  CHICAGO,  E.  I.  A  P.  E.  CO.  509 

of  Cameron,  in  Shoal  township,  by  a  train  on  said  raihx)ad,  and  that 
said  cow  was  worth  thirty-five  dollars.  The  defendant  introduced  one 
Kiley,  who  testified  that  he  was  the  conductor  on  said  train,  and  that 
the  bell  was  rung  and  the  whistle  sounded.  This  was  all  the  evidence 
offered." 

It  will  not  be  necessary  to  notice  the  instructions  given  and  refused. 
There  was  a  verdict  and  judgment  for  the  plaintiff,  and  the  defendant 
has  brought  the  case  here  by  appeal. 

The  statute  in  relation  to  railroad  corporations,  which  requires  the 
bell  on  the  locomotive  to  be  rung,  or  the  steam  whistle  to  be  soimded, 
before  reaching  and  while  crossing  any  travelled  public  road  or  street, 
provides  a  penalty  for  the  neglect  of  such  requirement,  and  further 
declares  that  the  corporation  shall  be  liable  for  all  damages  which  shall 
be  sustained  by  any  person  by  reason  of  such  neglect.  Conceding  that 
the  servants  of  the  defendant  neglected  to  ring  the  bell  or  soimd  the 
whistle,  the  question  is  whether  there  is  any  evidence  tending  to  show 
that  the  cow  was  killed  by  reason  of  such  neglect. 

In  the  case  of  Stoneman  v.  Atl.  &  Pac.  R.  R.  Co.,  58  Mo.  503,  it  was 
said,  on  the  point  in  judgment,  that  "  the  court  had  no  right  to  de- 
clare as  a  matter  of  law,  that  the  jury  had  nothing  to  find  but  the 
killing  of  the  animal  at  the  crossing  of  a  public  highway,  and  the 
failure  of  the  company  to  have  the  bell  rung  or  the  whistle  sounded. 
There  may  have  been  no  connection,  whatever,  between  the  n^ligent 
omission  and  the  damage;  and  the  very  terms  of  the  statute,  under 
which  the  suit  is  brought,  clearly  indicate  that  the  damage  must  be 
the  result  of  the  negligence." 

The  foregoing  extract  clearly  asserts,  that  there  is  no  necessary  con- 
nection between  the  failure  to  ring  the  bell  or  sound  the  whistle,  and 
the  killing;  that  both  may  concur  in  point  of  time,  and  the  latter  not 
be  the  result  of  the  former.  How,  then,  must  the  connection  be 
shown  ?  By  evidence,  undoubtedly.  Who  must  produce  such  evi- 
dence ?  The  party  who  asserts  that  such  connection  exists.  The 
damage  must  be  shown  to  be  the  result  of  the  negligence;  that  is,  the 
negligence  must  first  be  shown,  and  this  fact  must  be  supplemented  by 
testimony  tending  to  show  that  the  negligence  occasioned  the  damage. 
This  testimony  should  consist  of  all  the  facts  and  circumstances  at- 
tending the  killing,  so  that  the  jury  could  fairly  and  rationally  con- 
clude whether  it  resulted  from  the  failure  to  ring  the  bell  or  sound  the 
whistle,  or  from  other  causes.  In  the  case  at  bar  no  such  testimony 
was  offered;  but  two  facts  were  shown  to  fix  the  defendant's  liability, 
the  failure  to  give  the  required  signal  at  the  crossing,  and  the  killing. 
No  fact  was  shown  tending  to  connect  the  two.  If  the  plaintiff  can 
recover  on  the  evidence  embodied  in  the  bill  of  exceptions,  it  must  be, 
because  it  is  only  necessary  for  the  jury  to  find  the  killing  of  the  animal 
on  the  highway,  and  the  failure  to  ring  the  bell  or  sound  the  whistle, 
for  there  is  no  testimony  from  which  they  can  find  more.   But  this,  we 


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510  BRATTLEBORO  V.  WAIT  [CHAP.  III. 

have  seen,  is  not  sufficient.  Upon  the  case  made,  it  was  the  duty  of 
the  court  to  declare  as  a  matter  of  law  that  the  plaintiff  was  not  en- 
titled to  recover. 

This  conclusion  has  been  reached  after  a  careful  consid^ution  of 
the  case  of  Owens  v.  Hann.  &  St.  Jo.  R.  R.,  58  Mo.  386;  and  Howen- 
stein  V.  Pac.  R.  R.,  55  Mo.  33. 

The  judgment  must  be  reversed  and  the  cause  remanded.  All  the 
judges  concur,  except  Judge  Vories,  who  is  absent.^ 


BRATTLEBORO  v.  WAIT 

Supreme  Ck>i7RT,  Vermont,  February  Term,  1872. 

Reported  in  44  Vermont  Reporta,  459. 

Action  on  the  case,  to  recover  damages  sustained  by  reason  of  the 
defendant's  neglect  and  refusal  to  comply  with  the  requirements  of 
§  39,  ch.  83  of  the  General  Statutes,  and  §  1  of  No.  6  of  the  acts  of  the 
legislature  of  1865.    Demurrer  to  the  declaration  by  the  defendant. 

The  court,  September  term,  1870,  Barrett,  J.,  presiding,  sustained 
the  demurrer,  and  rendered  judgment  for  the  defendant.  Exceptions 
by  the  plaintiff. 

The  opinion  of  the  court  was  delivered  by  — 

Ross,  J.  The  question  in  this  case  is  whether  the  defendant  as 
cashier  of  the  Windham  County  Bank  for  the  years  commencing  April 
1, 1864,  and  April  1, 1865,  and  of  the  First  National  Bank  of  Brattle- 
boro  for  the  years  commencing  April  1,  1866,  and  April  1,  1867,  is 
liable  for  any  loss  that  may  have  resulted  to  the  town,  by  his  neglect 
to  return  to  the  town  clerk  of  the  plaintiff,  for  the  first  two  years 
named,  the  names  of  the  stockholders  in  the  Windham  County  Bank, 
agreeably  to  the  requirements  of  §  39,  ch.  83  of  the  General  Statutes, 
and  for  the  last  two  years  the  names  of  the  stockholders  of  the  First 
National  Bank  of  Brattleboro,  agreeably  to  the  requirements  of  §  1, 
of  No.  6  of  the  acts  of  1865;  or  whether  the  penalties  imposed  by  §  47 
of  ch.  83,  and  by  §  5  of  the  act  of  1865,  are  the  only  remedies  given 
for  the  neglect  of  the  defendant  to  perform  the  duties  imposed  by  the 
two  sections  first  above  named. 

These  duties  are  created  solely  by  the  statutes  named,  and  by  them 
are  superimposed  upon  the  defendant  in  addition  to  those  duties  which 

1  Steel  Car  Forge  Co.  v.  Chec,  (C.  C.  A.)  184  Fed.  868;  Great  Southern  R.  Co. 
V,  Chapman,  80  Ala.  615;  Lindsay  v.  Cecchi,  3  Boyoe,  133;  Gibson  v.  Leonard,  143 
lU.  182:  Browne  v,  Siegel,  90  lU.  App.  49  (affM  on  another  ground,  191  lU.  226); 
Presto-Lite  Co.  v,  Skeel,  182  Ind.  593;  Kidder  v.  Dunstable,  11  Gr^,  342; 
Curwen  v.  Boflferding,  133  Minn.  28;  Koch  v.  Fox,  71  App.  Div.  288:  Kuhnen 
V.  White,  102  App.  Kv.  36:  Ledbetter  v,  English,  166  N.  C.  125;  Dobbins  v. 
Missouri  R.  Co.,  91  Tex.  60:  Stacy  v.  Knickerboicker  Ice  Co.,  84  Wis.  614;  Derouso 
V,  International  Harvester  Co.,  157  Wis.  32  Accord, 

Compare  Hartnett  v.  Boston  Store,  265  HI.  331,  with  Pizzo  v,  Wiemann,  149 
Wis.  235;  Beauchamp  t^.  Bum  Mfg.  Co.,  250  BL  303,  with  Berdos  v.  Tremont 
Mills,  209  Mass.  489. 


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SECT.  IV.]  BRATTLEBORO  V.  WAIT  511 

were  incumbent  on  him  by  reason  of  his  acceptance  of  the  oflBce  of 
cashier.  The  principle,  that  the  law  will  furnish  a  remedy  to  a  party 
injured  by  the  neglect  or  non-performance  of  a  duty  imposed  on  an 
individual  by  statute,  where  the  statute  itself  furnishes  no  remedy,  is 
too  familiar  and  well  established  to  need  the  support  of  authorities. 
If  the  statute  which  imposes  a  new  duty  also  provides  a  particular 
remedy,  that  remedy  is  usually  the  only  remedy  the  injured  party  has. 
In  Regina  v,  Wigg,  2  Salk.  460,  the  court  says:  "  Where  a  new  pen- 
alty is  applied  for  a  matter  which  at  common  law  was  an  indictable 
offence,  either  remedy  may  be  pursued;  but  where  the  statute  makes 
the  offence,  that  remedy  must  be  taken  which  the  statute  gives." 
Lord  Mansfield,  in  Rex  v.  Robinson,  2  Bur.  799,  stating  the  doctrine 
more  fully,  says :  "  The  true  rule  of  distinction  seems  to  be,  that  where 
the  offence  intended  to  be  guarded  against  was  punishable  before  the 
making  of  such  statute,  prescribing  a  particular  method  of  pimishing 
it,  there  such  particular  remedy  is  cumulative,  and  does  not  take  away 
the  former  remedy;  but  where  the  statute  only  enacts '  that  the  doing 
any  act  not  punishable  before,  shall  for  the  future  be  punishable  in 
such  and  such  a  particular  manner  there,'  it  is  necessary  that  such 
particular  method,  by  such  act  prescribed,  must  be  specifically  pm*- 
sued,  and  not  the  common  law  method  of  an  indictment."  The  doc- 
trine stated  in  these  early  leading  cases  is  as  applicable  to  civil  as  to 
criminal  prosecutions.  The  question  then  is,  was  the  penalty  or  for- 
feiture of  $100  provided  for  by  §  47,  ch.  83  of  the  General  Statutes, 
and  of  $500  provided  for  in  §  5  of  the  act  of  1865,  intended  for  the 
remedies  to  the  plaintiff  for  the  non-performance  by  the  defendant  of 
the  duties  imposed  by  §  39,  and  by  §  1.  We  think  they  were.  The 
penalties  under  these  statutes  are  given  to  the  town,  as  the  party  in- 
jured or  aggrieved  by  the  failure  of  the  defendant  to  perform  the 
duties  imposed,  as  has  been  held  in  Newman,  Treasurer  of  Brattleboro, 
V.  this  defendant,  43  Vt.  587,  in  which  the  plaintiff  through  its  treas- 
lu^r  sought  to  recover  the  penalty  imposed  hj^iSof  the  act  of  1865, 
for  the  defendant's  failure  to  comply  with  §  1  oflBat^act  during  the 
years  1866  and  1867.  It  is  unnecessary  to  repeat  what  has  been  said 
in  that  case.  It  would  be  inconsistent  with  the  principle  we  have 
already  stated,  to  hold  that  the  plaintiff  can  recover  the  penalty  as  the 
party  aggrieved,  and  also  all  damages  it  has  sustained  by  the  defend- 
ant's failure  to  perform  a  duty  wholly  imposed  upon  him  by  the 
statute.  Such  holding  would  give  the  plaintiff  a  double  remedy  for 
the  same  failure  by  the  defendant  to  perform  a  duty  imposed  by 
statute,  and  due  to  the  plaintiff  only  by  the  force  of  the  statute;  the 
penalty  prescribed,  and  an  amercement  in  damages  for  all  the  plain- 
tiff can  show  he  has  suffered  from  such  failure.  The  penalty  cannot 
be  held  to  be  a  cumulative  remedy;  for  before  the  passage  of  the  act 
no  duty  was  due  from  the  defendant  as  cashier  to  the  plaintiff,  and, 
therefore,  there  could  be  no  remedy,  and  nothing  for  the  penalty  to  be 


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512  BRATTLEBORO  V.  WAIT  [CHAP.  III. 

cumulative  to.  Such  holding  would  interpret  one  and  the  same  act 
as  giving  a  double  remedy,  which  is  contrary  to  all  rules  of  interpre- 
tation, and  only  allowable  when  it  is  given  in  express  terms  by  the 
statute.  The  judgment  of  the  county  court  is  affirmed} 

1  In  Cowley  v.  Newmarket  Local  Board,  [1892]  A.  C.  345,  351,  Lord  Herschell 
said: 

"  My  Lords,  the  question  which  arises  in  this  action  is  whether  the  defendants 
are  liable  in  respect  of  an  accident  which  happened  to  the  plaintiff,  owing  to  the 
existence  of  a  drop  of  eighteen  inches  in  the  level  of  a  footivtty  vested  in  the  de- 
fendants, in  consequence  of  which  the  plaintiff  fell  and  sustained  considerable  in- 
jiuy.  Tne  difference  of  level  in  the  footway  arose  from  a  carriageway  having 
been  made  for  the  purpofe  of  access  to  Captain  Machell's  stable,  the  yard  of  which 
adjoined  the  footway.  This  work  was  executed  by  Captain  Machell  in  the  year 
1873.  The  plaintiff  in  his  statement  of  claim  asserted  that  the  defendants  had 
wronrfully  si^ered  and  permitted  the  footway  to  be  out  of  repair  and  in  a  condi- 
tion dangerous  to  passengers.  It  appeared  clearlv  at  the  trial  that  there  had  been 
no  misfeaBance  on  the  psSt  of  the  defendants.  The  utmost  that  could  be  charged 
against  them  was  non-feasance.  It  was  strongly  urged  at  the  bar  that  the  highway 
including  the  footway  being  vested  in  the  defendants,  they  were  responsible  if  it 
was  not  kept  in  proper  condition  and  repair  to  any  one  who  was  injured  by  reason 
of  its  not  being  so  kept.  In  support  of  their  contention  they  relied  mainly  on  the 
144th  and  149th  sections  of  the  Public  Health  Act,  1875.  By  the  former  of  those 
sections  every  urban  authority  is  to  execute  the  office  of  surveyor  of  highways,  and 
to  exercise  and  be  subject  to  all  the  powers,  duties,  and  liabiUties  m  survejrors. 
By  the  latter  it  is  provided  that  the  urban  sanitary  authority  shall  from  time  to 
time  cause  all  streets  vested  in  them  to  be  levelled,  paved,  metalled,  flagged,  chan- 
nelled, altered,  and  repaired  as  occasion  may  require.  Amongst  the  duties  thus 
imposed  upon  the  urban  authority  was  undoubteoly  the  duty  of  keeping  this  high- 
way in  repair,  and  it  is  said  that  any  person  injured  by  the  non-penormance  of  a 
statutory  duty  is  entitled  to  recover  against  the  person  on  whom  that  duty  rests. 
I  entertain  very  grave  doubts  whether  the  proposition  thus  broadly  stated  can  be 
maintained.  The  principal  authority  in  support  of  it  is  the  decision  of  the  Court 
of  Queen's  Bench  m  the  case  of  Couch  v.  Steel,  3  E.  &  B.  402.  But  in  the  case  of 
Atkinson  v,  Newcastle  Waterworks  Company,  2  Ex.  D.  441,  the  late  Lord  Cairns 
and  Cockbum,  C.  J.,  and  the  present  Master  of  the  Rolls  dl  expressed  serious 
doubts  whether  the  case  of  Couch  v.  Steel  was  rightly  decided,  and  whether  the 
broad  general  proposition  could  be  supported,  that  whenever  a  statutory  duty  is 
created  any  p^'son  who  can  show  he  has  sustained  injury  from  the  non-perform- 
ance of  that  duty  can  maintain  an  action  for  damages  against  the  person  on  whom 
the  duty  is  imposed.  I  share  the  doubt  expressed  by  these  learned  judges  and  the 
opinion  expressed  by  Lord  Cairns  that  much  must  'depend  on  the  purview  of  the 
Legislature  in  the  particular  statute  and  the  language  which  they  have  there  em- 
ployed.' In  the  case  of  Glossop  v.  Heston  and  Isleworth  Local  Board,  12  Ch.  D. 
102, 109,  James,  L.  J.,  noade  some  observations  bearing  on  this  pointy  which  seem 
to  me  to  be  of  great  weight.  In  that  case  the  plaintiff  claimed  an  mjunction  to 
restrain  a  nuisance  on  the  ground  that  the  defendants  had  neglected  to  perform 
the  statutory  duty  cast  on  tnem  as  the  sanitary  authority  of  a  particular  district. 
The  learned  Lord  Justice  said:  *  It  appears  to  me  that  if  this  action  could  be 
sustained  it  would  be  a  very  serious  matter  indeed  for  every  rate-payer  in  England 
in  any  district  in  which  there  is  any  local  authority  upon  whom  duties  are  cast  for 
the  benefit  of  the  locality.  If  this  action  could  be  maintained,  I  do  not  see  why  it 
could  not.  in  a  similar  manner^  be  maintained  by  every  owner  of  land  in  that 
district  who  could  allege  that  if  there  had  been  a  proper  system  of  sewage  his 
property  would  have  b^n  very  much  improved.*  And  he  expressed  the  opinion 
that  such  a  contention  was  not  supported  either  by  principle  or  authority.  It  is 
to  be  observed  that  the  Highway  Act,  which  defines  the  duties  of  surveyors  of 
highwa3rs,  prescribes  the  mode  of  proceeding  when  the  duty  of  repairing  the  hi^- 
way  is  unfulfilled  and  the  liability  which  is  then  to  attach  to  the  surveyor.  By 
sect.  94  he  may  be  summoned  before  the  justices,  and  if  it  appears  either  upon  the 
report  of  a  person  appointed  by  them  to  view,  or  on  their  own  view,  that  the  high- 
way is  not  m  a  state  of  thorough  and  perfect  repair,  they  are  to  convict  the  sur- 


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SECT.  IV.]  OSBORNE  V.  MCMA8TERS  513 

OSBORNE  V.  McMASTERS 

SupSEME  Court,  Minnesota,  January  30,  1889. 

Reported  in  40  Minnesota  Reports,  103. 

Appeal  by  defendant  from  a  judgment  of  the  District  Court  for 
Ramsey  County,  where  the  action  was  tried  before  Kelly,  J.,  and  a 
jury,  and  a  verdict  rendered  for  plaintiff. 

Mitchell,  J.  Upon  the  record  in  this  case  it  must  be  taken  as 
the  facts  that  defendant's  clerk  in  his  drug-store,  in  the  course  of  his 
employment  as  such,  sold  to  plaintiff's  intestate  a  deadly  poison  with- 
out labelling  it  "  Poison,"  as  required  by  statute;  that  she,  in  igno- 
rance of  its  deadly  quaUties,  partook  of  the  poison,  which  caused  her 
death.  Except  for  the  ability  of  counsel  and  the  earnestness  with 
which  they  have  argued  the  case,  we  would  not  have  supposed  that 
there  could  be  any  serious  doubt  of  defendant's  liability  on  this  state 
of  facts.  It  is  immaterial  for  present  purposes  whether  section  329 
of  the  Penal  Code  or  section  14,  c.  147,  Laws  1885,  or  both,  are  still 
in  force,  and  constitute  the  law  governing  this  case.^  The  require- 
ments of  both  statutes  are  substantially  the  same,  and  the  sole  ob- 
ject of  both  is  to  protect  the  pubUc  against  the  dangerous  quaUties 
of  poison.  It  is  now  well  settled,  certainly  in  this  state,  that  where\ 
a  statute  or  municipal  ordinance  imposes  upon  any  person  a  specific 
duty  for  the  protection  or  benefit  of  others,  if  he  neglects  to  perform 
that  duty  he  is  liable  to  those  for  whose  protection  or  benefit  it  was 
imposed  for  any  injuries  of  the  character  which  the  statute  or  ordi- 

vejror  in  a  penaltY^  and  to  make  an  order  on  the  surveyor  to  repair  it  within  a 
limited  time :  and  if  the  repairs  are  not  made  within  the  time  so  limited  the  sur- 
veyor is  to  forfeit  and  pay  to  a  person  to  be  named  and  appointed  in  a  second 
order  a  sum  of  monev  eqiial  to  the  cost  of  repairing  the  hi^wav.  I  think  it,  to 
sav  the  least,  doubtful  whether,  apart  from  the  reason  to  which  I  am  about  to 
refer,  the  contention  that  an  action  lies  against  the  local  board  for  a  breach  of 
their  statutory  duty  to  repair  the  highways  can  be  maintained." 

Sydney  Municipal  Council  v.  Bourke,  T1895]  A.  G.  433;  Maguire  v.  Liverpool 
Corporation,  [1905]  1  K.  B.  767  Accord.  But  compare  Dawson  v,  Bingley  Urban 
District  Council,  [1911]  2  K.  B.  149. 

Statutory  duty  to  repair  street  or  sidewaUc.  see  Manchester  r.  Hartford,  30  Conn. 
118;  Kirby  v.  Boylston  Market,  14  Gray,  249;  Rochester  v.  Campbell,  123  N.  Y. 
405. 

^  "  A  i)erson  who  sells,  gives  awav,  or  disposes  of,  any  poison,  or  poisonous  sub- 
stance, without  attaching  to  the  vial,  box,  or  parcel  containing  such  poisonous  sub- 1 
stance,  a  label,  with  the  name  and  residence  of  such  person,  the  word '  poison,'  and 
the  name  of  such  poison,  all  written  or  printed  thereon,  in  plain  and  legible  char- 
acters, is  guilty  of  a  misdemeanor."  —  Minnesota  Penal  Code,  section  329. 

"  No  person  shall  sell  at  retail  any  poisonous  commodity  recogiixed  as  such,  and 
especially  "  [here  enumerating  various  poisons].  "  without  a&dng  to  the  box, 
bottle,  vessel  or  package  containing  the  same,  and  to  the  wrapper  or  cover  thereof, 
a  label  bearing  tne  name  '  poison  'distinctly  shown,  together  with  the  name  ana 
place  of  business  of  the  seller.  .  .  .  Any  p^-son  failing  to  comity  with  the  reouire- 
ments  of  tlus  section  shall  be  deemed  guuty  of  a  miBoemeanor,  and  shall  be  uable 
to  a  fine  of  not  less  than  five  (5)  dollars  for  each  and  every  such  omission."  — 
Minnesota  Laws,  1885,  chap.  147,  section  14. 


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514  OSBORNE  V.  MCMASTEES  [CHAP.  III. 

nance  was  designed  to  prevent,  and  which  were  proximately  produced 
by  such  neglect.  In  support  of  this  we  need  only  cite  our  own  deci- 
sion in  Bott  V.  Pratt,  33  Minn.  323  (23  N.  W.  Rep.  237). 

Defendant  contends  that  this  is  only  true  where  a  right  of  action 
for  the  alleged  negligent  act  existed  at  common  law;  that  no  liability 
existed  at  common  law  for  selling  poison  without  labelling  it,  and 
therefore  none  exists  imder  this  statute,  no  right  of  civil  action  being 
given  by  it.  Without  stopping  to  consider  the  correctness  of  the  as- 
sumption that  selling  poison  without  labelling  it  might  not  be  action- 
able negligence  at  common  law,  it  is  sufficient  to  say  that,  in  our 
opinion,  defendant's  contention  proceeds  upon  an  entire  misappre- 
hension of  the  nature  and  gist  of  a  cause  of  action  of  this  kind.  The 
common  law  gives  a  right  of  action  te  every  one  sustaining  injuries 
caused  proximately  by  the  negligence  of  another.  The  present  is  a 
common-law  action,  the  gist  of  which  is  defendant's  negUgence, 
resulting  in  the  death  of  plaintiff's  intestate.  Negligence  is  the  breach 
of  legal  duty.  It  is  immaterial  whether  the  duty  is  one  imposed  by 
the  rule  of  common  law  requiring  the  exercise  of  ordinary  care  not.  to 
injure  another,  or  is  imposed  by  a  statute  designed  for  the  protection 
of  others.  In  either  case  the  failure  te  perform  the  duty  constitutes 
negUgence,  and  renders  the  party  liable  for  injuries  resulting  from  it. 
The  only  difference  is  that  in  the  one  case  the  measure  of  legal  duty 
is  to  be  determined  upon  common-law  principles,  while  in  the  other 
the  statute  fixes  it,  so  that  the  violation  of  the  statute  constitutes  con- 
clusive evidence  of  negligence,  or,  in  other  words,  negligence  per  se. 
The  action  in  the  latter  case  is  not  a  statutory  one,  nor  does  the  statute 
give  the  right  of  action  in  any  other  sense  except  that  it  makes  an  act 
negligent  which  otherwise  might  not  be  such,  or  at  least  only  evidence 
of  negligence.  All  that  the  statute  does  is  te  establish  a  fixed  standard 
by  which  the  fact  of  negligence  may  be  determined.  The  gist  of  the 
action  is  still  negligence,  or  the  non-performance  of  a  legal  duty  to  the 
person  injured. 

What  has  been  already  said  suggests  the  answer  to  the  further  con- 
tention that  if  any  civil  liability  exists  it  is  only  against  the  clerk  who 
sold  the  poison,  and  who  alone  is  criminally  liable.  Whether  the  act 
constituting  the  actionable  negligence  was  such  on  common-law  prin- 
ciples, or  is  made  such  by  statute,  the  doctrine  of  agency  applies,  to 
wit,  that  the  master  is  civilly  liable  for  the  negligence  of  his  servant 
committed  in  the  course  of  his  emplojrment,  and  resulting  in  injuries 
to  third  persons.   ^  Judgment  affirmed} 

1  Couch  V,  Steel,  3  E.  &  B.  402;  Salisbury  v.  Herchenroder,  lOG'^Mass.  458; 
Parker  v,  Barnard,  135  Mass.  116;  Marino  v.  Lehmaier,  173  N.  Y.  530;  Wester- 
velt  V,  Dives,  220  Pa.  St.  617  Accord.  Compare  Nugent  v.  Vanderveer,  38  Hun, 
487. 

See  also  Great  Northern  Fishing  Co.  t^.  Edgehill,  11  Q.  B.  D.  225. 


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SECT.  IV.]  WILLY  V.  MULLEDY  515 

WILLY  V.  MULLEDY 

CouBT  OF  Appeals,  New  York,  September  30, 1879. 

Reported  in  78  New  York  Reports,  310. 

Earl,  J.>  This  is  an  action  to  recover  damages  for  the  death  of 
plaintiff's  wife,  alleged  to  have  been  caused  by  the  fault  of  the  defend- 
ant. Prior  to  the  1st  day  of  November,  1877,  the  plaintiff  hired  of  the 
defendant  certain  apartments  in  the  rear  of  the  third  story  of  a  tene- 
ment house  in  the  city  of  Brooklyn,  and  with  his  wife  and  infant  child 
moved  into  them  on  that  day.  On  the  fifth  day  in  the  same  month,  in 
the  day-time,  a  fire  took  place,  originating  in  the  lower  story  of  the 
house,  and  plaintiff's  wife  and  child  were  smothered  to  death. 

It  is  claimed  that  the  defendant  was  in  fault  because  he  had  not 
constructed  for  the  house  a  fire-escape,  and  because  he  had  not  placed 
in  the  house  a  ladder  for  access  to  the  scuttle. 

Section  36  of  title  13  of  chapter  863  of  the  Laws  of  1873  provides 
that  every  building  in  the  city  of  Brooklyn  shall  have  a  scuttle  or  place 
of  ^ress  in  the  roof  thereof  of  proper  size,  and  "  shall  have  ladders 
or  stairways  leading  to  the  same;  and  all  such  scuttles  and  stairways 
or  ladders  leading  to  the  roof  shall  be  kept  in  readiness  for  use  at  all 
times."  It  also  provides  that  houses  like  that  occupied  by  the  plain- 
tiff "  shall  be  provided  with  such  fire-escapes  and  doors  as  shall  be 
directed  and  approved  by  the  commissioners  (of  the  department  of  fire 
and  buildings) ;  and  the  owner  or  owners  of  any  building  up<!>n  which 
any  fire-escapes  may  now  or  hereafter  be  erected,  shall  keep  the  same 
in  good  repair  and  well  painted,  and  no  person  shall  at  any  time  place 
any  incumbra,noe  of  any  kind  whatsoever  upon  said  fire-escapes  now 
erected  or  that  may  hereafter  be  erected  in  the  city.  Any  person,  after 
being  notified  by  said  commissioners,  who  shall  neglect  to  place  upon 
any  such  building  the  fire-escape  herein  provided  for,  shall  forfeit  the 
sum  of  $500,  and  shall  be  deemed  guilty  of  a  misdemeanor." 

Under  this  statute  the  defendant  was  bound  to  provide  this  house 
with  a  fire-escape.  He  was  not  permitted  to  wait  imtil  he  should  be 
directed  to  provide  one  by  the  commissioners.  He  was  bound  to  do  it 
in  such  way  as  they  should  direct  and  approve,  and  it  was  for  him  to 
procure  their  direction  and  approval.  No  penalty  is  imposed  for  the 
siinple  omission  to  provide  one.  The  penalty  can  be  incurred  only  for 
the  neglect  to  provide  one  after  notification  by  the  conmiissioners. 

Here  was,  then,  an  absolute  duty  imposed  upon  the  defendant  by 
statute  to  provide  a  fire-escape,  and  the  duty  was  imposed  for  the  sole 
benefit  of  the  tenants  of  the  house,  so  that  they  would  have  a  mode  of 
escape  in  the  case  of  a  fire.  For  a  breach  of  this  duty  causing  damage, 
it  cannot  be  doubted  that  the  tenants  have  a  remedy.    It  is  a  general 

1  Arguments  omitted.  Only  so  much  of  the  opinion  is  given  as  relates  to  a  single 
point. 


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616  GORRIS  V.  SCOTT  [CHAP.  HI. 

rule,  that  whenever  one  owes  another  a  duty,  whether  such  duty  be 
imposed  by  voluntary  contract  or  by  statute,  a  breach  of  such  duty 
causing  damage  gives  a  cause  of  action.  Duty  and  right  are  correla- 
tive; and  where  a  duty  is  imposed,  there  must  be  a  right  to  have  it 
performed.  When  a  statute  imposes  a  duty  upon  a  public  officer,  it  is 
well  settled  that  any  person  having  a  special  interest  in  the  perform- 
ance thereof  may  sue  for  a  breach  thereof  causing  him  damage,  and  the 
same  is  true  of  a  duty  imposed  by  statute  upon  any  citizen:  (Cooley 
on  Torts,  664;  Hover  v.  BarkhoflF,  44  N.  Y.  113;  Jetter  v.  N.  Y.  C. 
and  H.  R.  R.  R.  Co.,  2  Abb.  Ct.  of  App.  Dec.  458;  Heeney  v.  Sprague, 
11  R.  I.  456;  Couch  v.  Steele,  3  Ell.  &  Bl.  402).  In  Comyn's  Digest, 
Action  upon  Statute  (F.),  it  is  laid  down  as  the  rule  that  "  in  every 
case  where  a  statute  enacts  or  prohibits  a  thing  for  the  benefit  of  a 
person,  he  shall  have  a  remedy  upon  the  same  statute  for  the  thing 
enacted  for  his  advantage,  or  for  the  recompense  of  a  wrong  done  to 
him  contrary  to  the  said  law." 
[Remainder  of  opinion  omitted.] 

Judgment  for  plaintiff  affirmed} 


GORRIS  V.  SCOTT 

In  the  Exchequer,  April  22,  1874. 

Reported  in  Law  ReportSf  9  Exchequer,  125. 

Declaration,  first  count:  that  after  the  passing  of  the  Contagious 
Diseases  (Animals)  Act,  1869,  the  Privy  Council,  in  exercise  of  the 
powers  and  authorities  vested  in  them  by  the  Act  (s.  75),  made  an 
order  (called  the  Animals  Order  of  1871)  with  reference  to  animals 
brought  by  sea  to  ports  in  Great  Britain,  and  to  the  places  used  and 
occupied  by  such  animals  on  board  any  vessel  in  which  the  same 
should  be  so  brought  to  such  ports;  and  thereby,  amongst  other 
things,  ordered  (1)  that  every  such  place  should  be  divided  into  pens 
by  substantial  divisions;  (2)  that  each  such  pen  should  not  exceed 
nine  feet  in  breadth  and  fifteen  feet  in  length;  that  afterwards  and 
whilst  the  order  was  in  force  the  plaintiffs  delivered  on  board  a  vessel 
called  the  Hastings,  to  the  defendant  as  owner  of  the  vessel,  certain 
sheep  of  the  plaintiffs,  to  be  carried  by  the  defendant  for  reward  on 
board  the  said  vessel  from  Hamburg  to  Newcastle,  and  there  delivered 
to  the  plaintiffs;  and  the  defendant,  as  such  owner,  received  and 
started  on  the  said  voyage  with  the  sheep  for  the  purposes  and  on  the 
terms  aforesaid;  that  all  conditions  were  fulfilled,  &c.,  yet  the  place  in 
and  on  board  the  said  vessel  which  was  used  and  occupied  by  the 

1  Groves  v.  WimbOTne,  [1898]  2  Q.  B.  402;  Cowen  v.  Story  &  Clark  Co.,  170 
111.  App.  92;  Andersen  v,  Settergren,  100  Minn.  294:  Schaar  v,  Conforth,  128 
Minn.  460  Accord.  Compare  Stehle  v.  Jaeger  Machine  Co.,  220  Pa.  St.  617;  Drake 
V,  Fenton,  237  Pa.  St.  8. 


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SECT.  IV.]  GORRIS  V.  SCOTT  517 

sheep  during  the  voyage  was  not,  during  the  said  voyage  or  any  part 
thereof,  divided  into  pens  by  substantial  or  other  divisions,  by  reason 
whereof  divers  of  the  sheep  were  washed  and  swept  away  by  the  sea 
from  oflf  the  said  ship,  and  were  drowned  and  wholly  lost  to  the 
plaintiffs. 

Second  count,  similar  to  the  first,  but  setting  out  a  third  regulation : 
"  that  the  floor  of  each  such  pen  should  have  proper  battens  or  other 
foot-hold  thereon,"  and  alleging  the  loss  of  the  sheep  as  aforesaid  to 
have  been  caused  by  the  want  of  such  battens. 

Demurrer  and  joinder. 

[The  preamble  of  the  Contagious  Diseases  (Animals)  Act  of  1869, 
32  &  33  Vict,  chapter  70,  recited  in  a  note  to  the  report,  is  as  follows: 

"  Whereas  it  is  expedient  to  confer  on  Her  Majesty's  most  honour- 
able Privy  Coimcil  powers  to  take  such  measures  as  may  appear  from 
time  to  time  necessary  to  prevent  the  introduction  into  Great  Britain 
of  contagious  or  infectious  diseases  among  cattle,  sheep,  and  other 
animals,  by  prohibiting  or  regulating  the  importation  of  foreign  ani- 
mals; and  it  is  further  expedient  to  provide  against  the  spreading  of 
such  diseases  in  Great  Britain,  and  to  consolidate  and  make  perpetual 
the  Acts  relating  thereto,  and  to  make  such  other  provisions  as  are 
contained  in  this  Act." 

Sect.  75  of  said  Act:  "  The  Privy  Coimcil  may  from  time  to  time 
make  such  orders  as  they  think  expedient  for  all  or.  any  of  the  follow- 
ing purposes:  —  ^^"^^^^^^^ 

"  For  insuring  for  animals  brought  by  sea  to  ports  in  Gr6»it  Britain 
a  proper  supply  of  food  and  water  during  the  passage  and  on  landing; 

"  For  protecting  such  animals  from  lumecessary  suffering  diuing  the 
passage  and  on  landing; 

(Then  follow  certain  inland  purposes.) 

"  And  generally  any  orders  whatsoever  which  they  think  it  expe- 
dient to  make  for  the  better  execution  of  this  Act,  or  for  the  purpose  of 
in  any  manner  preventing  the  introduction  or  spreading  of  contagious 
or  infectious  disease  among  animals  in  Great  Britain."]  ^ 

Kelly,  C.  B.  This  is  an  action  to  recover  damages  for  the  loss  of 
a  number  of  sheep  which  the  defendant,  a  shipowner,  had  contracted 
to  carry,  and  which  were  washed  overboard  and  lost  by  reason  (as  we 
must  take  it  to  be  truly  alleged)  of  the  neglect  to  comply  with  a  cer- 
tain order  made  by  the  Privy  Council,  in  pimsuance  of  the  Contagious 
Diseases  (Animals)  Act,  1869.  The  Act  was  passed  merely  for  sani- 
tary purposes,  in  order  to  prevent  animals  in  a  state  of  infectious  dis- 
ease from  communicating  it  to  other  animals  with  which  they  might 
come  in  contact.  Under  the  authority  of  that  Act  certain  orders  were 
made;  amongst  others,  an  order  by  which  any  ship  bringing  sheep  or 
cattle  from  any  foreign  port  to  ports  in  Great  Britain  is  to  have  the 
place  occupied  by  such  animals  divided  into  pens  of  certain  dimen- 

^  Arguments  of  counsel  omitted. 


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518  GORRIS  V.  SCOTT  [CHAP.  IH. 

sions,  and  the  floor  of  such  pens  furnished  with  battens  or  foot-holds. 
The  object  of  this  order  is  to  prevent  animals  from  being  overcrowded, 
and  so  brought  into  a  condition  in  which  the  disease  guarded  against 
would  be  likely  to  be  developed.  This  regulation  has  been  neglected, 
and  the  question  is,  whether  the  loss,  which  we  must  assume  to  have 
been  caused  by  that  neglect,  entitles  the  plaintiffs  to  maintain  an 
action. 

The  argument  of  the  defendant  is,  that  the  Act  has  imposed  penal- 
ties to  seeing  the  observance  of  its  provisions,  and  that,  according  to 
the  general  rule,  the  remedy  prescribed  by  the  statute  must  be  pur- 
sued; that  although,  when  penalties  are  imposed  for  the  violation  of 
a  statutory  duty,  a  person  aggrieved  by  its  violation  may  sometimes 
maintain  an  action  for  the  damage  so  caused,  that  must  be  in  cases 
where  the  object  of  the  statute  is  to  confer  a  benefit  on  individuals, 
and  to  protect  them  against  the  evil  consequences  which  the  statute 
was  designed  to  prevent,  and  which  have  in  fact  ensued;  but  that  if 
the  object  is  not  to  protect  individuals  against  the  consequences  which 
have  in  fact  ensued,  it  is  otherwise;  that  if,  therefore,  by  reason  of 
the  precautions  in  question  not  having  been  taken,  the  plaintiffs  had 
sustained  that  damage  against  which  it  was  intended  to  secure  them, 
an  action  would  lie,  but  that  when  the  damage  is  of  such  a  nature  as 
was  not  contemplated  at  all  by  the  statute,  and  as  to  which  it  was  not 
intended  to  confer  any  benefit  on  the  plaintiffs,  they  cannot  maintain 
an  action  founded  on  the  neglect.  Tlie  principle  may  be  well  illus- 
trated by  the  case  put  in  argument  of  a  breach  by  a  railway  company 
of  its  duty  to  erect  a  gate  on  a  level  crossing,  and  to  keep  the  gate 
closed  except  when  the  crossing  is  being  actually  and  properly  used. 
The  object  of  the  precaution  is  to  prevent  injury  from  being  sustained 
through  animals  or  vehicles  being  upon  the  line  at  unseasonable  times; 
and  if  by  reason  of  such  a  breach  of  duty,  either  in  not  erecting  the 
gate,  or  in  not  keeping  it  closed,  a  person  attempts  to  cross  with  a 
carriage  at  an  improper  time,  and  injury  ensues  to  a  passenger,  no 
doubt  an  action  would  lie  against  the  railway  company,  because  the 
intention  of  the  legislature  was  that,  by  the  erection  of  the  gates  and 
by  their  being  kept  closed  individuals  should  be  protected  against 
accidents  of  this  description.  And  if  we  could  see  that  it  was  the  ob- 
ject, or  among  the  objects  of  this  Act,  that  the  owners  of  sheep  and 
cattle  coming  from  a  foreign  port  should  be  protected  by  the  means 
described  against  the  danger  of  their  property  being  washed  over- 
board, or  lost  by  the  perils  of  the  sea,  the  present  action  would  be 
within  the  principle. 

But,  looking  at  the  Act,  it  is  perfectly.clear  that  its  provisions  were 
all  enacted  with  a  totally  different  view;  there  was  no  purpose,  direct 
or  indirect,  to  protect  against  such  damage;  but,  as  is  recited  in  the 
preamble,  the  Act  is  directed  against  the  possibility  of  sheep  or  cattle 
being  exposed  to  disease  on  their  way  to  this  country.    The  preamble 


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SECT.  IV.]  GORRIS  V.  SCOTT  519 

recites  that  "  it  is  expedient  to  confer  on  Her  Majesty's  most  honour- 
able Privy  Council  power  to  take  such  measures  as  may  appear  from 
time  to  time  necessary  to  prevent  the  introduction  into  Great  Britain 
of  contagious  or  infectious  diseases  among  cattle,  sheep,  or  other  ani- 
mals, by  prohibiting  or  regulating  the  importation  of  foreign  animals," 
and  also  to  provide  against  the  "  spreading  "  of  such  diseases  in  Great 
Britain.  Then  follow  numerous  sections  directed  entirely  to  this  ob- 
ject. Then  comes  sect.  75  which  enacts  that  "  the  Privy  Council  may 
from  time  to  time  make  such  orders  as  they  think  expedient  for  all 
or  any  of  the  following  purposes."  What,  then,  are  these  purposes  ? 
They  are  "  for  securing  for  animals  brought  by  sea  to  ports  in  Great 
Britain  a  proper  supply  of  food  and  water  during  the  passage  and  on 
landing,"  "  for  protecting  such  animals  from  unnecessary  suflfering 
during  the  passage  and  on  landing,"  and  so  forth;  all  the  purposes 
enumerated  being  calculated  and  directed  to  the  prevention  of  disease, 
and  none  of  them  having  any  relation  whatever  to  the  danger  of  loss 
by  the  perils  of  the  sea.  That  being  so,  if  by  reason  of  the  default 
in  question  the  plaintiffs'  sheep  had  been  overcrowded,  or  had  been 
caused  lumecessary  suffering,  and  so  had  arrived  in  this  country  in 
a  state  of  disease,  I  do  not  say  that  they  might  not  have  maintained 
this  action.  But  the  damage  complained  of  here  is  something  totally 
apart  from  the  object  of  the  Act  of  Parliament,  and  it  is  in  accord- 
ance with  all  the  authorities  to  say  that  the  action  is  not  maintain- 
able. 

PiGOTT,  B.  For  the  reasons  which  have  been  so  exhaustively  stated 
by  the  Lord  Chief  Baron,  I  am  of  opinion  that  the  declaration  shows 
no  cause  of  action.  It  is  necessary  to  see  what  was  the  object  of  the 
legislature  in  this  enactment,  and  it  is  set  forth  clearly  in  the  pre- 
amble as  being  "  to  prevent  the  introduction  into  Great  Britain  of 
contagious  or  infectious  diseases  among  cattle,  sheep,  or  other  ani- 
mals," and  the  "  spread  of  such  diseases  in  Great  Britain."  The  pur- 
poses enumerated  in  sect.  75  are  in  harmony  with  this  preamble,  and 
it  is  in  furtherance  of  that  section  that  the  order  in  question  was  miade. 
The  object,  then,  of  the  regulations  which  have  been  broken  was,  not 
to  prevent  cattle  from  being  washed  overboard,  but  to  protect  them 
against  contagious  disease.  The  legislature  never  contemplated  alter- 
ing the  relations  between  the  owners  and  carriers  of  cattle,  except  for 
the  purposes  pointed  out  in  the  Act;  and  if  the  Privy  Council  had 
gone  out  of  their  way  and  made  provisions  to  prevent  cattle  from  being 
washed  overboard,  their  act  would  have  been  vUra  vires.  If,  indeed, 
by  reason  of  the  neglect  complained  of,  the  cattle  had  contracted  a 
contagious  disease,  the  case  would  have  been  different.  But  as  the 
case  stands  on  this  declaration,  the  answer  to  the  action  is  this :  Admit 
there  has  been  a  breach  of  duty;  admit  there  has  been  a  consequent 
injury;  still  the  legislature  was  not  legislating  to  protect  against  such 
an  injury,  but  for  an  altiOgether  different  purpose;  its  object  was  not 


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620  GORRIS  V.  SCOTT  [CHAP.  IH. 

to  regulate  the  duty  of  the  carrier  for  all  purposes,  but  only  for  one 
particular  purpose. 

[Pollock,  B.,  delivered  a  concurring  opinion.  Amphlett,  B., 
concurred.]  Judgment  for  the  defendant} 

1  Bischof  V,  lUinoia^R.  Co.,  232  El.  446;  Frontier  Steam  Laundry  Co.  v.  Con- 
nolly, 72  Neb.  767;  Hocking  R.  Co.  v.  Phillips,  81  Ohio  St.  453  Accord. 

Breach  of  stattUory  duty  toward  third  person^  see  Gibson  t'.  Leonard,  143  111. 
182:  Woodruff  v,  Bowen,  136  Ind.  431;  Bott  v.  Pratt,  33  Minn.  323;  Kelly  i;. 
Muns,  71  N.  J.  Law,  348;  Beehler  v.  Daniels,  19  R.  I.  49.  Compare  Racine  t>. 
Morris,  201  N.  Y.  240. 

In  Stanley  v,  Atchison  R.  Co.,  88  Kan.  84,  Mason,  J.,  says: 

'^  The  evidence  tended  to  show  these  facte:  Stanley  kept  a  number  of  cattle 
in  a  feed  lot  one  side  of  which  was  formed  by  the  right-of-way  fence.  Employees 
of  the  company  who  were  engaged  in  ite  repair  removed  a  part  of  it,  as  well  as  a 
part  of  Stanley's  fence  which  connected  with  it,  and  as  a  temporary  protection 
strung  two  wires  across  the  ^p.  The  protection  was  insufficient  and  the  cattle 
escaped.  None  of  them  was  miured  upon  the  right  of  way,  but  a  number  straycKl 
and  were  not  recovered,  and  others  suffered  injury,  in  some  cases  fatal. 

The  defendant  maintains  that  in  anv  view  of  the  findings  the  judgment  ought 
not  to  be  reversed,  for  the  reason  that  the  petition  does  not  state  a  cause  of  action, 
because  the  company  was  under  no  obligation  to  maintain  the  fence,  except  for  the 
purpose  of  avoiaing  liability  for  animals  killed  or  injured  by  ite  trains,  and  there- 
fore cannot  be  held  accountable  for  any  other  kind  of  loss  occasioned  by  the  want 
of  a  sufficient  fence.  The  original  statute  iipon  the  subject  does  not  in  terms  re- 
quire a  railroad  right  of  way  to  be  fenced.  It  makes  the  company  responsible  for 
animals  killed  or  injured  by  the  operation  of  its  railway  irrespective  of  negligence, 
except  where  the  road  is  enclosed  with  a  lawful  fence.  .  .  .  Jhe  later  statute  im- 
posed a  duty  on  the  railroad  companv  to  maintain  the  fence,  and  it  is  liable  for 
any  injury  of  which  ite  neglect  of  such  duty  is  the  proximate  cause.  .  .  . 

The  defendant  urges  that  the  purpose  of  the  statute  referred  to  is  to  promote 
safety  in  the  running  of  trains;  that  m  this  puri^ose  is  found  the  only  warrant  for 
imposing  upon  the  railroad  company  the  obligation  to  fence  ite  right  of  way;  and 
that  therefore  the  company's  liabihty  must  be  limited  to  injuries  resulting  from 
the  operation  of  the  road,  and  the  state  has  no  power  to  make  it  liable  for  losses 
occasioned  by  the  escape  of  animals  which  do  not  meet  with  any  injury  upon  the 
right  of  way.  Assuming  that  the  right  of  the  legislature  to  require  a  railroad  com- 
pany to  fence  ite  tracks  is  based  sdely  upon  the  consideration  that  such  fencing 
may  be  deemed  necessary  to  diminish  the  danger  of  injury  to  animals  from  the 
operation  of  trains,  and  to  persons  and  property  resulting  from  trains  colliding  with 
animals,  it  is  competent  as  a  means  of  enforcing  such  requirement  to  make  the 
company  liable  for  losses  occasioned  to  the  landowner  by  the  escape  of  his  cattle 
through  a  defective  fence,  although  they  pass  from  the  right  of  way  without 
injury." 

Liability  to  licensee  in  case  of  breach  of  statutory  duty  as  to  condition  of  premises, 
see  Sheyer  v.  Lowell,  134  Cal.  357. 

LdabHity  to  trespassers^  see  Nelson  t;.  Bumham  &  Morrill  Co.,  114  Me.  213;  Flan- 
agan V.  Sanders.  138  Mich.  253;  Hamilton  t'.  Minneapolis  D^  Co.,  78  Mmn.  3; 
Bennett  v.  Odell  Mfg.  Co.,  76  N.  H.  180.  Compare  Butz  v,  Cavanaugh,  137  Mo. 
503. 

See  Thayer,  Public  Wrong  and  Private  Action,  27  Harvard  Law  Rev.  313, 336. 


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PART  II 

INTERFERENCE  WITH  GENERAL  SUBSTANCE  OR 
INTERESTS  IN  INTANGIBLE  THINGS 


CHAPTER  IV 
DECEIT 


PASLEY  V.  FREEMAN 

In  the  King's  Bench,  Hilary  Tebm,  1789. 
Reported  in  3  Term  Reports  (Dumfard  <fc  East),  51. 

Tins  was  an  action  in  the  nature  of  a  writ  of  deceit,  to  which  the 
defendant  pleaded  the  general  issue.  And  after  a  verdict  for  the  plain- 
tiffs on  the  third  count,  a  motion  was  made  in  arrest  of  judgment. 

The  third  count  was  as  follows:  "And  whereas,  also,  the  said 
Joseph  Freeman  afterwards,  to  wit,  on  the  twenty-first  day  of  Febru- 
ary, in  the  year  of  our  Lord  1787,  at  London  aforesaid,  in  the  parish 
and  ward  aforesaid,  further  intending  to  deceive  and  defraud  the  said 
John  Pasley  and  Edward,  did  wrongfully  and  deceitfully  encourage 
and  persuade  the  said  John  Pasley  and  Eidward  to  sell  and  deliver  to 
the  said  John  Christopher  Falch  divers  other  goods,  wares,  and  mer- 
chandises, to  wit,  sixteen  other  bags  of  cochineal  of  great  value,  to  wit, 
of  the  value  of  £2,634  16s.  Id.  upon  trust  and  credit;  and  did  for  that 
purpose  then  and  there  falsely,  deceitfully,  and  fraudulently  assert  and 
affirm  to  the  said  John  Pasley  and  Edward  that  the  said  John  Chris- 
topher then  and  there  was  a  person  safely  to  be  trusted  and  given 
credit  to  in  that  respect,  and  did  thereby  falsely,  fraudulently,  and  de- 
ceitfully cause  and  procure  the  said  John  Pasley  and  Edward  to  sell 
and  deliver  the  said  last-mentioned  goods,  wares,  and  merchandises 
upon  trust  and  credit  to  the  said  John  Christopher;  and,  in  fact,  they 
the  said  John  Pasley  and  Edward,  confiding  in,  and  giving  credit  to, 
the  said  last-mentioned  assertion  and  affirmation  of  the  said  Joseph, 
and  believing  the  same  to  be  true,  and  not  knowing  the- contrary 
thereof,  did  afterwards,  to  wit,  on  the  twenty-eighth  day  of  February, 
in  the  year  of  our  Lord  1787,  at  London  aforesaid,  in  the  parish  and 
ward  aforesaid,  sell  and  deliver  the  said  last-mentioned  goods,  wares, 
and  merchandises  upon  trust  and  credit  to  the  said  John  Christopher; 
whereas  in  truth  and  fact,  at  the  time  of  the  said  Joseph^s  making  his 

521 


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522  PASLEY  V.  FREEBiAN  [CHAP.  IV. 

said  last-mentioned  assertion  and  affinnation,  the  said  John  Chris- 
topher was  not  then  and  there  a  person  safely  to  be  trusted  and  given 
credit  to  in  that  respect,  and  the  said  Joseph  well  knew  the  same,  to 
wit,  at  London  aforesaid,  in  the  parish  and  ward  aforesaid.  And  the 
said  John  Pasley  and  Edward  further  say,  that  the  said  John  Chris- 
topher hath  not,  nor  hath  any  other  person  on  his  behalf,  paid  to  the 
said  John  Pasley  and  Edward,  or  either  of  them,  the  said  sum  of 
£2,634  16«.  Id.  last  mentioned,  or  any  part  thereof,  for  the  said  last- 
mentioned  goods,  wares,  and  merchandises;  but,  on  the  contrary,  the 
said  John  Christopher  tiien  was  and  still  is  wholly  unable  to  pay  the 
said  sum  of  money  last  mentioned,  or  any  part  thereof,  to  Uie  said 
John  and  Edward,  to  wit,  at  London  aforesaid,  in  the  parish  and  ward 
aforesaid;  and  the  said  John  Pasley  and  Edward  aver  that  the  said 
Joseph  falsely  and  fraudulently  deceived  them  in  this,  that  at  the  time 
of  his  making  his  said  last-mentioned  assertion  and  afl^rmation  the 
said  John  Christopher  was  not  a  person  safely  to  be  trusted  or  given 
credit  to  in  that  respect,  as  aforesaid,  and  the  said  Joseph  then  well 
knew  the  sahie,  to  wit,  at  London  aforesaid,  in  the  parish  and  ward 
aforesaid;  by  reason  of  which  said  last-mentioned  fake,  fraudulent, 
and  deceitful  assertion  and  affirmation  of  the  said  Joseph,  the  said 
John  Pasley  and  Edward  have  been  deceived  and  imposed  upon,  and 
have  wholly  lost  the  said  last-mentioned  goods,  wares,  and  merchan- 
dises, and  the  value  thereof,  to  wit,  at  London  aforesaid,  in  the  parish 
and  ward  aforesaid,  to  the  damage,"  4c. 

Application  was  first  made  for  a  new  trial,  which  after  argument  was 
refused,  and  then  this  motion  in  arrest  of  judgment.  Wood  argued  for 
the  plaintiffs,  and  Riissell  for  the  defendant,  in  the  last  term;  but  as 
the  Court  went  so  fully  into  this  subject  in  giving  their  opinions,  it  is 
unnecessary  to  give  the  arguments  at  the  bar. 

The  Court  took  time  to  consider  of  this  matter,  and  now  deUvered 
their  opinions  seriatim. 

Grose,  J.  Upon  the  face  of  this  count  in  the  declaration  no  privity 
of  contract  is  stated  between  the  parties.  No  consideration  arises  to 
the  defendant;  and  he  is  in  no  situation  in  which  the  law  considers 
him  in  any  trust,  or  in  which  it  demands  from  him  any  account  of  the 
credit  of  Falch.  He  appears  not  to  be  interested  in  any  transaction 
between  the  plaintiffs  and  Falch,  nor  to  have  colluded  with  them;  but 
he  knowingly  asserted  a  falsehood,  by  saying  that  Falch  might  be 
safely  intrusted  with  the  goods,  and  given  credit  to,  for  the  purpose  of 
inducing  the  plaintiffs  to  trust  him  with  them,  by  which  the  plaintiffs 
lost  the  value  of  the  goods.  Then  this  is  an  action  against  the  defend- 
ant for  making  a  false  affirmation,  or  telling  a  lie,  respecting  the  credit 
of  a  third  person,  with  intent  to  deceive,  by  which  the  third  person  was 
damnified;  and  for  the  damages  suffered,  the  plaintiffs  contend  that 
the  defendant  is  answerable  in  an  action  upon  the  case.  It  is  admitted 
that  the  action  is  new  in  point  of  precedent;  but  it  is  insisted  that  the 


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CHAP.  IV.]  PASLEY  V.  FREEMAN  523 

law  recognize  principles  on  which  it  may  be  supported.  The  principle 
upon  which  it  is  contended  to  lie  is  that,  wherever  deceit  or  falsehood 
is  practised  to  the  detriment  of  another,  the  law  will  give  redress. 
This  proposition  I  controvert,  and  shall  endeavor  to  show  that,  in 
every  case  where  deceit  or  falsehood  is  practised  to  the  detriment  of 
another,  the  law  will  not  give  redress;  and  I  say  that  by  the  law,  as  it 
now  stands,  no  action  lies  against  any  person  standing  m  the  predica- 
ment of  this  defendant  for  the  false  affirmation  stated  in  the  declara- 
tion. If  the  action  can  be  supported,  it  must  be  upon  the  ground  that 
there  exists  in  this  case  what  the  law  deems  damnum  cum  injuria.  If  it 
does,  I  admit  that  the  action  Ues;  and  I  admit  that  upon  the  verdict 
found  the  plaintiffs  appear  to  have  been  damnified.  But  whether  there 
has  been  injuria,  a  wrong,  a  tort,  for  which  an  action  lies,  is  a  matter 
of  law.  The  tort  complained  of  is  the  false  affirmation  made  with 
intent  to  deceive;  and  it  is  said  to  be  an  action  upon  the  case  analogous 
to  the  old  writ  of  deceit.  When  this  was  first  argued  at  the  bar,  on  the 
motion  for  a  new  trial,  I  confess  I  thought  it  reasonable  that  the  action 
should  he;  but,  on  looking  into  the  old  books  for  cases  in  which  the 
old  action  of  deceit  has  been  maintained  upon  the  false  affirmation  of 
the  defendant,  I  have  changed  my  opinion.  The  cases  on  this  head 
are  brought  together  in  Bro.  tit.  Deceit,  pi.  29,  and  in  Fitz.  Abr.  I 
have  likewise  looked  into  Danvers,  Kitchins,  and  Comyns,  and  I  have 
not  met  with  any  case  of  an  action  upon  a  false  affirmation,  except 
against  a  party  to  a  contract,  and  where  there  is  a  promise,  either 
express  or  implied,  that  the  fact  is  true,  which  is  misrepresented;  and 
no  other  case  has  been  cited  at  the  bar.  Then  if  no  such  case  has  ever 
existed,  it  furnishes  a  strong  objection  against  the  action,  which  is 
brought  for  the  first  time  for  a  supposed  injury,  which  has  been  daily 
committed  for  centuries  past.  For  I  beUeve  there  has  been  no  time 
when  men  have  not  been  constantly  damnified  by  the  fraudulent  mis- 
representations of  others;  and  if  such  an  action  would  have  lain,  there 
certainly  has  been,  and  will  .be,  a  plentiful  soiu-ce  of  litigation,  of 
which  tie  public  are  not  hitherto  aware.  A  variety  of  cases  may  be 
put.  Suppose  a  man  recommends  an  estate  to  another,  as  knowing  it 
to  be  of  greater  value  than  it  is;  when  the  purchaser  has  bought  it  he 
discovers  the  defect,  and  sells  the  estate  for  less  than  he  gave;  why 
may  not  an  action  be  brought  for  the  loss  upon  any  principle  that 
will  support  this  action  ?  And  yet  such  an  action  has  never  been 
attempted.  Or  suppose  a  person  present  at  the  sale  of  a  horse  asserts 
that  he  was  his  horse,  and  that  he  knows  him  to  be  sound  and  siu'e- 
footed,  when  in  fact  the  horse  is  neither  the  one  nor  the  other;  accord- 
ing to  the  principle  contended  for  by  the  plaintiffs,  an  action  Ues 
against  the  person  present  as  well  as  the  seller,  and  the  piu*chaser  has 
two  securities.  And  even  in  this  very  case,  if  the  action  Ues,  the  plain- 
tiffs wiU  stand  in  a  pecuUarly  fortunate  predicament,  for  they  will  then 
have  the  responsibiUty  boti  of  Falch  and  the  defendant.    And  they 


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624  PASLEY  V.   FREEMAN  [CHAP.  IV. 

will  be  in  a  better  situation  than  they  would  have  been  if,  in  the  con- 
versation that  passed  between  them  and  the  defendant,  instead  of 
asserting  that  Falch  might  safely  be  trusted,  the  defendant  had  said, 
"  If  he  do  not  pay  for  the  goods,  I  will; "  for  then  undoubtedly  an 
action  would  not  have  lain  against  the  defendant.  Other  and  stronger 
cases  may  be  put  of  actions  that  must  necessarily  spring  out  of  any 
principle  upon  which  this  can  be  supported,  and  yet  which  were  never 
thought  of  till  the  present  action  was  brought.  Upon  what  principle  is 
this  act  said  to  be  an  injury  ?  The  plaintiffs  sayj  on  the  ground  that, 
when  the  question  was  asked,  the  defendant  was  bound  to  tell  the 
truth.  There  are  cases,  I  admit,  where  a  man  is  boimd  not  to  mis- 
represent, but  to  tell  the  truth;  but  no  such  case  has  been  cited, 
except  in  the  case  of  contracts;  and  all  the  cases  of  deceit  for  mis- 
information may,  it  seems  to  me,  be  turned  into  actions  of  assumpsit. 
And  so  far  from  a  person  being  boimd  in  a  case  like  the  present  to  tell 
the  truth,  the  books  supply  me  with  a  variety  of  cases,  in  which  even 
the  contracting  party  is  not  liable  for  a  misrepresentation.  There  are 
cases  of  two  sorts  in  which,  though  a  man  is  deceived,  he  can  maintain 
no  action.  The  first  class  of  cases  (though  not  analogous  to  the  pres- 
ent) is  where  the  afl5rmation  is  that  the  thing  sold  has  not  a  defect 
which  is  a  visible  one;  there  the  imposition,  the  fraudulent  intent,  is 
admitted,  but  it  is  no  tort.  The  second  head  of  cases  is  where  the 
afl&rmation  is  (what  is  called  in  some  of  the  books)  a  nude  assertion, 
such  as  the  party  deceived  may  exercise  his  own  judgment  upon;  as 
where  it  is  matter  of  opinion,  where  he  may  make  inquiries  into  the 
truth  of  the  assertion,  and  it  becomes  his  own  fault  from  laches  that 
he  is  deceived.  1  Roll.  Abr.  101;  Yelv.  20;  1  Sid.  146;  Cro.  Jac.  386; 
Bayly  v.  Merrel.  In  Harvey  v.  Yoimg,  Yelv.  20,  J.  S.,  who  had  a  term 
for  years,  aflSrmed  to  J.  D.  that  the  term  was  worth  £150  to  be  sold, 
upon  which  J.  D.  gave  £150,  and  afterwards  could  not  get  more  than 
£100  for  it,  and  then  brought  his  action;  and  it  was  alleged  that  this 
matter  did  not  prove  any  fraud,  for  it  was  only  a  naked  assertion  that 
the  term  was  worth  so  much,  and  it  was  the  plaintiff's  folly  to  give 
credit  to  such  assertion.  But  if  the  defendant  had  warranted  the 
term  to  be  of  such  a  value  to  be  sold,  and  upon  that  the  plaintiff  had 
bought  it,  it  would  have  been  otherwise;  for  the  warranty  given  by 
the  defendant  is  a  matter  to  induce  confidence  and  trust  in  the  plain- 
tiff. This  case,  and  the  passage  in  1  Roll.  Abr.  101,  are  recognized  in 
1  Sid.  146.  How,  then,  are  the  cases  ?  None  exist  in  which  such  an 
action  as  the  present  has  been  brought;  none,  in  which  any  principle 
applicable  to  the  present  case  has  been  laid  down  to  prove  that  it  will 
lie;  not  even  a  dictum.  But  from  the  cases  cited  some  principles  may 
be  extracted  to  show  that  it  cannot  be  sustained:  1st.  That  what  is 
fraud,  which  will  support  an  action,  is  matter  of  law.  2d.  That  in 
every  case  of  a  fraudulent  misrepresentation,  attended  with  damage, 
an  action  will  not  lie  even  between  contracting  parties.    3d.    That  if 


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CHAP.  IV.]  PASLEY  V.  FREEMAN  525^ 

the  assertion  be  a  nude  assertion,  it  is  that  sort  of  misrepresentation 
the  truth  of  which  does  not  he  merely  in  the  knowledge  of  the  defend- 
ant, but  may  be  inquired  into,  and  the  plainti£f  is  bound  so  to  do; 
and  he  cannot  recover  a  damage  which  he  has  suffered  by  his  laches. 
Then  let  us  consider  how  far  the  facts  of  the  case  come  within  the  last 
of  these  principles.  The  misrepresentation  stated  in  the  declaration 
is  respecting  the  credit  of  Falch;  the  defendant  asserted  that  the  plain-* 
tiffs  might  safely  give  him  credit;  but  credit  to  which  a  man  is  en- 
titled is  matter  of  judgment  and  opinion,  on  which  different  men 
might  form  different  opinions,  and  upon  which  the  plaintiffs  might 
form  their  own,  to  mislead  which  no  fact  to  prove  the  good  credit  of 
Falch  is  falsely  asserted.  It  seems  to  me,  therefore,  that  any  asser- 
tion relative  to  credit,  especially  where  the  party  making  it  has  no  in- 
terest, nor  is  in  any  collusion  with  the  person  respecting  whose  credit 
the  assertion  is  made,  is  like  the  case  in  Yelverton  respecting  the  value 
of  the  term.  But  at  any  rate,  it  is  not  an  assertion  of  a  fact  peculiarly 
in  the  knowledge  of  the  defendant.  Whether  Falch  deserved  credit 
depended  on  the  opinion  of  mtoy ;  for  credit  exists  on  the  good  opinion 
of  many.  Respecting  this  the  plaintiffs  might  have  inquired  of  others 
who  knew  as  much  as  the  defendant;  it  was  their  fault  that  they  did 
not,  and  they  have  suffered  damage  by  their  own  laches.  It  was  owing 
to  their  own  gross  negligence  that  they  gave  credence  to  the  assertion 
of  the  defendant,  without  taking  pains  to  satisfy  themselves  that  that 
assertion  was  founded  in  fact,  as  in  the  case  of  Bayly  v.  Merrel.  I  am, 
therefore,  of  opinion  that  this  action  is  as  novel  in  principle  as  it  is  in 
precedent,  that  it  is  against  the  principles  to  be  collected  from  analo- 
gous cases,  and  consequently  that  it  cannot  be  maintained. 

BuLLER,  J.  The  foundation  of  this  action  is  fraud  and  deceit  in  the 
defendant,  and  damage  to  the  plaintiffs.  And  a  question  is,  whether 
an  action  thus  founded  can  be  sustained  in  a  <;ourt  of  law.  Fraud 
without  damage,  or  damage  without  fraud,  gives  no  cause  of  action; 
but  where  these  two  concur,  an  action  lies.  Per  Croke,  J.,  3  Bulst.  96. 
But  it  is  contend^  that  this  was  a  bare,  naked  he;  that,  as  no  collu- 
sion with  Falch  is  charged,  it  does  not  amoimt  to  a  fraud;  and,  if  there 
were  any  fraud,  the  nature  of  it  is  not  stated.  And  it  was  supposed 
by  the  counsel,  who  originally  made  the  motion,  that  no  action  could 
be  maintained  unless  the  defendant,  who  made  this  false  assertion,  had 
an  interest  in  so  doing.  I  agree  that  an  action  cannot  be  supported  for 
telling  a  bare,  naked  he;  but  that  I  define  to  be,  sa3ring  a  thing  which 
is  false,  knowing  or  not  knowing  it  to  be  so,  and  without  any  design  to 
injure,  cheat,  or  deceive  another  person.  Every  deceit  comprehends  a 
lie;  but  a  deceit  is  more  than  a  lie,  on  accoimt  of  the  view  with  which 
it  is  practised,  its  being  coupled  with  some  dealing,  and  the  injury 
which  it  is  calculated  to  occasion,  and  does  occasion,  to  another  per- 
son. Deceit  is  a  very  extensive  head  in  the  law;  and  it  will  be  proper 
to  take  a  short  view  of  some  of  the  cases  which  have  existed  on  the 


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626  PASLEY  V.   FREEMAN  [CHAP.  IV. 

subject,  to  see  how  far  the  Courts  have  gone,  and  what  are  the  prin 
ciples  upon  which  they  have  decided.  I  lay  out  of  the  question  the 
case  in  2  Cro.  196,  and  all  other  cases  which  relate  to  freehold  interests 
in  lands;  for  they  go  on  the  special  reason  that  the  seller  cannot  have 
them  without  title,  and  the  buyer  is  at  his  peril  to  see  it.  But  the  cases 
cited  on  the  part  of  the  defendant  deserving  notice  are  Yelv.  20,  Carth. 
90,  Salk.  210.  The  first  of  these  has  been  fully  stated  by  my  brother 
Grose;  but  it  is  to  be  observed  that  the  book  does  not  affect  to  give 
the  reasons  on  which  the  Court  delivered  their  judgment;  but  it  is  a 
case  quoted  by  counsel  at  the  bar,  who  mentions  what  was  allied  by 
counsel  in  the  other  case.  If  the  Court  went  on  a  distinction  between 
the  words  "  warranty  "  and  "  afltanation,"  the  case  is  not  law;  for  it 
was  rightly  held  by  Holt,  C.  J.,  in  the  subsequent  cases,  and  has  been 
uniformly  adopted  ever  since,  that  an  aflBrmation  at  the  time  of  a  sale 
is  a  warranty,  provided  it  appear  on  evidence  to  have  been  so  intended. 
But  the  true  groimd  of  that  determination  was  that  the  assertion  was 
of  mere  matter  of  judgment  and  opinion;  of  a  matter  of  which  the 
defendant  had  no  particular  knowledge,  but  of  which  many  men  will 
be  of  many  minds,  and  which  is  often  governed  by  whim  and  caprice. 
Judgment,  or  opinion,  in  such  case  impUes  no  knowledge.  And  here 
this  case  differs  materially  from  that  in  Yelverton;  my  brother  Grose 
considers  this  assertion  as  mere  matter  of  opinion  only,  but  I  differ 
from  him  in  that  respect.  For  it  is  stated  on  this  record  that  the  de- 
fendant knew  that  the  fact  was  false.  The  case  in  Yelverton  admits 
that,  if  there  had  been  fraud,  it  would  have  been  otherwise.  The  case 
of  Crosse  v.  Gardner,  Carth.  90,  was  upon  an  affirmation  that  oxen 
which  the  defendant  had  in  his  possession  and  sold  to  the  plaintiff  were 
his,  when  in  truth  they  belonged  to  another  person.  The  objection 
against  the  action  was  that  the  declaration  neither  stated  that  the  de- 
fendant deceitfully  sold  them,  or  that  he  knew  them  to  be  the  property 
of  another  person;  and  a  man  may  be  mistaken  in  his  property  and 
right  to  a  thing  without  any  fraud  or  ill  intent.  Ex  conceasis  therefore 
if  there  were  fraud  or  deceit,  the  action  would  Ue;  and  knowledge  of 
the  falsehood  of  the  thing  asserted  is  fraud  and  deceit.  But,  notwith- 
standing these  objections,  the  Court  held  that  the  action  lay,  because 
the  plaintiff  had  no  means  of  knowing  to  whom  the  property  belonged 
but  only  by  the  possession.  And  in  Cro.  Jac.  474,  it  was  held  that 
affirming  them  to  be  his,  knowing  them  to  be  a  stranger's,  is  the  offence 
and  cause  of  action.  The  case  of  Medina  v,  Stoughton,  Salk.  210,  in 
the  point  of  decision,  is  the  same  as  Crosse  v.  Gardner;  but  there  is  an 
obiter  dictum  of  Holt,  C.  J.,  that  where  the  seller  of  a  personal  thing  is 
out  of  possession,  it  is  otherwise;  for  there  may  be  room  to  question 
the  seller's  title,  and  caveat  emptor  in  such  case  to  have  an  express  war- 
ranty or  a  good  title.  This  distinction  by  Holt  is  not  mentioned  by 
Lord  Raym.  593,  who  reports  the  same  case;  and  if  an  afi&rmation  at 
the  time  of  sale  be  a  warranty,  I  cannot  feel  a  distinction  between  the 


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CHAP.  IV.]  PASLEY  V.  FREEMAN  527 

vendor's  being  in  or  out  of  possession.  The  thing  is  bought  of  him, 
and  in  consequence  of  his  assertion;  and  if  there  be  any  difference,  it 
seems  to  me  that  the  case  is  strongest  against  the  vendor  when  he  is 
out  of  possession,  because  then  the  vendee  has  nothing  but  the  war- 
ranty to  rely  on.  These  cases,  then,  are  so  far  from  being  authorities 
against  the  present  action,  that  they  show  that  if  there  be  fraud  or 
deceit,  the  action  will  he;  and  that  knowledge  of  the  falsehood  of  the 
thing  asserted  is  fraud  and  deceit.  Collusion,  then,  is  not  necessary  to 
constitute  fraud.  In  the  case  of  a  conspiracy,  there  must  be  a  collusion 
between  two  or  more  to  support  an  indictment;  but  if  one  man  alone 
be  guilty  of  an  offence  which,  if  practised  by  two,  would  be  the  subject 
of  an  indictment  for  a  conspiracy,  he  is  civilly  liable  in  an  action  for 
reparation  of  damages  at  the  suit  of  the  person  injured.  That  knowl- 
edge of  the  falsehood  of  the  thing  asserted  constitutes  fraud,  though 
there  be  no  collusion,  is  further  proved  by  the  case  of  Risney  v.  Selby, 
Salk.  211,  where,  upon  a  treaty  for  the  purchase  of  a  house,  the  de- 
fendant fraudulently  affirmed  that  the  rent  was  £30  per  annum,  when 
it  was  only  £20  per  annum,  and  the  plaintiff  had  his  judgment;  for  the 
value  of  the  rent  is  a  matter  which  lies  in  the  private  knowledge  of  the 
landlord  and  tenant;  and  if  they  affirm  the  rent  to  be  more  than  it  is, 
the  purchaser  is  cheated,  and  ought  to  have  a  remedy  for  it.  No  collu- 
sion was  there  stated;  nor  does  it  appear  that  the  tenant  was  ever 
asked  a  question  about  the  rent,  and  yet  the  purchaser  might  have 
appUed  to  him  for  information;  but  the  judgment  proceeded  wholly 
upon  the  groimd  that  the  defendant  knew  that  what  he  asserted  was 
false.  And,  by  the  words  of  the  book,  it  seems  that  if  the  tenant  had 
said  the  same  thing  he  also  would  have  been  liable  to  an  action.  If  so, 
that  would  be  all  answer  to  the  objection  that  the  defendant  in  this 
case  had  no  interest  in  the  assertion  which  he  made.  But  I  shall  not 
leave  this  point  on  the  dictum  or  inference  which  may  be  collected  from 
that  case.  If  A.,  by  fraud  and  deceit,  cheat  B.  out  of  £1,000,  it  makes 
no  difference  to  B.  whether  A.  or  any  other  person  pockets  that 
£1,000.  He  has  lost  his  money;  and  if  he  can  fix  fraud  upon  A.,  rea- 
son seems  to  say  that  he  has  a  right  to  seek  satisfaction  against  him. 
Authorities  are  not  wanting  on  this  point.  1  Roll.  Abr.  91,  pi.  7.  If 
the  vendor  affirm  that  the  goods  are  the  goods  of  a  stranger,  his  friend, 
and  that  he  had  authority  from  him  to  sell  them,  and  upon  that  B. 
buys  them,  when  in  truth  they  are  the  goods  of  another,  yet,  if  he  sell 
them  fraudulently  and  falsely  on  this  pretence  of  authority,  though  he 
do  not  warrant  them,  and  though  it  be  not  averred  that  he  sold  them 
knowing  them  to  be  the  goods  <rf  the  stranger,  yet  B.  shall  have  an 
action  for  this  deceit.  It  is  not  clear  from  this  case  whether  the  fraud 
consisted  in  having  no  authority  from  his  friend,  or  in  knowing  that 
the  goods  belonged  to  another  person;  what  is  said  at  the  end  of  the 
case  only  proves  that  "falsely"  and  "fraudulently"  are  equivalent  to 
"  knowin^y."  If  the  first  were  the  fact  in  the  case,  namely,  that  he  had 


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528  PASLEY  V.   FREEMAN  [CHAP.  IV. 

no  authority,  the  case  does  not  apply  to  this  point;  but  if  he  had  an 
authority  from  his  friend,  whatever  tiie  goods  were  sold  for  his  friend 
was  entitled  to,  and  he  had  no  interest  in  them.  But,  however  that 
might  be,  the  next  case  admits  of  no  doubt.  For  in  1  Roll.  Abr.  100, 
pi.  1,  it  was  held  that  if  a  man  acknowledge  a  fine  in  my  name,  or  ac- 
knowledge a  judgment  in  an  action  in  my  name  of  my  land,  this  shall 
bind  me  forever;  and  therefore  I  may  have  a  writ  of  deceit  against  him 
who  acknowledged  it.  So  if  a  man  acknowledge  a  recognizance,  stat- 
ute-merchant or  staple,  there  is  no  foundation  for  supposing  that  in 
that  case  the  person  acknowledging  the  fine  or  judgment  was  the  same 
person  to  whom  it  was  so  acknowledged.  If  that  had  been'necessary  it 
would  have  been  so  stated;  but  if  it  were  not  so,  he  who  acknowledged 
the  fine  had  no  interest  in  it.  Again,  in  1  Roll.  Abr.  95,  1.  25,  it  is 
said,  "  If  my  servant  lease  my  land  to  another  for  years,  reserving  a 
rent  for  me,  and,  to  persuade  iJie  lessee  to  accept  it,  he  promise  that  he 
shall  enjoy  the  land  without  incumbrances,  if  the  land  be  incumbered, 
&c.,  the  lessee  may  have  an  action  on  the  case  against  my  servant,  be- 
cause he  made  an  express  warranty.''  Here,  then,  is  a  case  in  which 
the  party  had  no  interest  whatever.  The  same  case  is  reported  in  Cro. 
Jac.  425;  but  no  notice  is  taken  of  this  point,  probably  because  the 
reporter  thought  it  immaterial  whether  the  warranty  be  by  the  master 
or  servant.  And  if  the  warranty  be  made  at  the  time  of  the  sale,  or 
before  the  sale,  and  the  sale  is  upon  the  faith  of  the  warranty,  I  can  see 
no  distinction  between  the  cases.  The  gist  of  the  action  is  fraud  and 
deceit;  and  if  that  fraud  and  deceit  can  be  fixed  by  evidence  on  one 
who  had  no  interest  in  his  iniquity,  it  proves  his  maUce  to  be  the 
greater.  But  it  was  objected  to  this  declaration  that  if  there  were  any 
fraud,  the  nature  of  it  is  not  stated.  To  this  the  declaration  itself  is 
so  direct  an  answer  that  the  case  admits  of  no  other.  The  fraud  is  that 
the  defendant  procured  the  plaintiffs  to  sell  goods  on  credit  to  one 
whom  they  would  not  otherwise  have  trusted,  by  asserting  that  which 
he  knew  to  be  false.  Here,  then,  is  the  fraud  and  the  means  by  which 
it  was  committed;  and  it  was  done  with  a  view  to  enrich  Falch  by  im- 
poverishing the  plaintiffs,  or,  in  other  words,  by  cheating  the  plaintiffs 
out  of  their  goods.  The  cases  which  I  have  stated,  and  Sid.  146,  and  1 
Keb.  522,  prove  that  the  declaration  states  more  than  is  necessary;  for 
fravdxderUer  without  sdenSy  or  sciens  without  fraiuliUerUer,  would  be 
suflScient  to  support  the  action.  But,  as  Mr.  J.  Twisden  said  in  that 
case,  the  fraud  must  be  proved.  The  assertion  alone  will  not  maintain 
the  action;  but  the  plaintiff  must  go  on  to  prove  that  it  was  false,  and 
that  the  defendant  knew  it  to  be  so;  by  what  means  that  proof  is  to  be 
made  out  in  evidence  need  not  be  stated  in  the  declaration.  Some  gen- 
eral arguments  were  urged  at  the  bar  to  show  that  mischiefs  and  in- 
conveniences would  arise  if  this  action  were  sustained;  for  if  a  man 
who  is  asked  a  question  respecting  another's  responsibility  hesitate  or 
is  silent,  he  blasts  the  character  of  the  tradesman;  and  if  he  say  that 


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CHAP.  IV.]  PASLEY  t;.  FREEMAN  629 

he  is  insolvent,  he  may  not  be  able  to  prove  it.  But  let  us  see  what 
is  contended  for:  it  is  nothing  less  than  that  a  man  may  assert  that 
which  he  knows  to  be  false,  and  thereby  do  an  everlasting  injury  to  his 
neighbor,  and  yet  not  be  answerable  for  it.  This  is  as  repugnant  to 
law  as  it  is  to  moraUty.  Then  it  is  said  that  the  plaintiffs  had  no  right 
to  ask  the  question  of  the  defendant.  But  I  do  not  agree  in  that;  for 
the  plaintiffs  had  an  interest  in  knowing  what  the  credit  of  Falch  was. 
It  was  not  the  inquiry  of  idle  curisoity,  but  it  was  to  govern  a  very 
extensive  concern.  The  defendant  undoubtedly  had  his  option  to  give 
an  answer  to  the  question  or  not;  but  if  he  gave  none,  or  said  he  did 
not  know,  it  is  impossible  for  any  court  of  justice  to  adopt  the  possible 
inferences  of  a  suspicious  mind  as  a  ground  for  grave  judgment.  All 
that  is  required  of  a  person  in  the  defendant's  situation  is  that  he  shall 
give  no  answer,  or  that,  if  he  do,  he  shall  answer  according  to  the 
truth  as  far  as  he  knows.  The  reasoning  in  the  case  of  Coggs  v.  Bar- 
nard, which  was  cited  by  the  plaintiff's  coimsel,  is,  I  think,  very  appli- 
cable to  this  part  of  the  case.  If  the  answer  import  insolvency,  it  is 
not  necessary  that  the  defendant  should  be  able  to  prove  that  insol- 
vency to  a  jury;  for  the  law  protects  a  man  in  giving  that  answer,  if 
he  does  it  in  confidence  and  without  maUce.  No  action  can  be  main- 
tained against  him  for  giving  such  an  answer,  unless  express  maUce  can 
be  proved.  From  the  circumstance  of  the  law  giving  that  protection, 
it  seems  to  follow,  as  a  necessary  consequence,  that  the  law  not  only 
gives  sanction  to  the  question,  but  requires  that,  if  it  be  answered  at 
all,  it  shall  be  answered  honestly.  There  is  a  case  in  the  books  which, 
though  not  much  to  be  rehed  on,  yet  serves  to  show  that  this  kind  of 
conduct  has  never  been  thought  innocent  in  Westminster  Hall.  In  R. 
V,  Gunston,  1  Str.  589,  the  defendant  was  indicted  for  pretending  that 
a  person  of  no  reputation  was  Sir  J.  Thomycraft,  whereby  the  prosecu- 
tor was  induced  to  trust  him;*  and  the  Court  refused  to  grant  a  certio' 
rariy  unless  a  special  ground  were  laid  for  it.  If  the  assertion  in  that 
case  had  been  wholly  innocent  the  Court  would  not  have  hesitated  a 
moment.  How,  indeed,  an  indictment  could  be  maintained  for  that  I 
do  not  well  understand;  nor  have  I  learnt  what  became  of  it.  The 
objection  tp  the  indictment  is  that  it  was  merely  a  private  injury:  but 
that  is  no  answer  to  an  action.  And  if  a  man  will  wickedly  assert  that 
which  he  knows  to  be  false,  and  thereby  draws  his  neighbor  into  a 
heavy  loss,  even  though  it  be  under  the  specious  pretence  of  serving 
his  friend,  I  say  ausis  talibua  istis  non  jura  subserviunt. 

AsHHURST,  J.  The  objection  in  this  case,  which  is  to  the  third  count 
in  the  declaration,  is  that  it  contains  only  a  bare  assertion,  and  does 
not  state  that  the  defendant  had  any  interest,  or  that  he  colluded  with 
the  other  party  who  had.  But  I  am  of  opinion  that  the  action  Ues  not- 
withstandiing  this  objection.  It  seems  to  me  that  the  rule  laid  down  by 
Croke,  J.,  in  Bayly  v.  Merrel,  3  Bulstr.  95,  is  a  sound  and  solid  prin- 
ciple, namely,  that  fraud  without  damage,  or  damage  without  fraud. 


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530  PASLEY  V.  FREEMAN  [CHAP.  IV. 

will  not  found  an  action;  but  where  both  concur  an  action  will  he. 
The  principle  is  not  denied  by  the  other  judges,  but  only  the  appUca- 
tion  of  it,  because  the  party  injured  there,  who  was  the  carrier,  had  the 
means  of  attaining  certain  knowledge  in  his  own  power,  namely,  by 
weighing  the  goods;  and  therefore  it  was  a  foolish  creduUty,  against 
which  the  law  will  not  reUeve.  But  that  is  not  the  case  here,  for  it  is 
expressly  charged  that  the  defendant  knew  the  falsity  of  the  allegation^ 
and  which  the  jury  have  found  to  be  true;  but  non  constat  that  the 
plaintiffs  knew  it,  or  had  any  means  of  knowing  it,  but  trusted  to 
the  veracity  of  the  defendant.  And  many  reasons  may  occur  why  the 
defendant  might  know  that  fact  better  than  the  plaintiffs;  as  if  there 
had  before  this  event  subsisted  a  partnership  between  him  and  Falch 
which  had  been  dissolved;  but  at  any  rate  it  is  stated  as  a  fact  that 
he  knew  it.  It  is  admitted  that  a  fraudulent  afiBjmation,  when  the 
party  making  it  has  an  interest,  is  a  groimd  of  action,  as  in  Risney  v. 
Selby,  which  was  a  false  aflBjmation  made  to  a  purchaser  as  to  the 
rent  of  a  farm  which  the  defendant  was  in  treaty  to  sell  to  him.  But 
it  was  argued  that  the  action  Ues  not  unless  where  the  party  making  it 
has  an  interest,  or  colludes  with  one  who  has.  I  do  not  recollect  that 
any  case  was  cited  which  proves  such  a  position;  but  if  there  were 
any  such  to  be  found,  I  should  not  hesitate  to  say  that  it  could  not  be 
law,  for  I  have  so  great  a  veneration  for  the  law  as  to  suppose  that 
nothing  can  be  l^w  which  is  not  foimded  in  common  sense  or  conmion 
honesty.  For  the  gist  of  the  action  is  the  injury  done  to  the  plaintiff, 
and  not  whether  the  defendant  meant  to  be  a  gainer  by  it;  what  is  it 
to  the  plaintiff  whether  the  defendant  was  or  was  not  to  gain  by  it  ?  the 
injury  to  him  is  the  same.  And  it  should  seem  that  it  ought  more 
emphatically  to  he  against  him,  as  the  maUce  is  more  diaboUcal  if  he 
had  not  the  temptation  of  gain.  For  the  same  reason,  it  cannot  be 
necessary  that  the  defendant  should  collude  with  one  who  has  an  inter- 
est. But  if  collusion  were  necessary,  there  seems  all  the  reason  in  the 
world  to  suppose  both  interest  and  collusion  from  the  nature  of  the 
act;  for  it  is  to  be  hoped  that  there  is  not  to  be  found  a  disposition  so 
diaboUcal  as  to  prompt  any  man  to  injure  another  without  benefiting 
himself.  But  it  is  said  that  if  this  be  determined  to  be  law,  any  man 
may  have  an  action  brought  against  him  for  telling  a  Ue,  by  the  credit- 
ing of  which  another  happens  eventually  to  be  injured.  But  this  con- 
sequence by  no  means  follows;  for  in  order  to  make  it  actionable  it 
must  be  accompanied  with  the  circumstances  averred  in  this  count, 
namely,  that  the  defendant,  "  intending  to  deceive  and  defraud  the 
plaintiffs,  did  deceitfully  encourage  and  persuade  them  to  do  the  act, 
and  for  that  purpose  made  the  false  affirmation,  in  consequence  of 
which  they  did  the  act."  Any  Ue  accompanied  with  those  circum- 
stances I  diould  clearly  hold  to  be  the  subject  of  an  action;  but  not  a 
mere  Ue  thrown  out  at  random  without  any  intention  of  hurting  any- 
body, but  which  some  person  was  foolish  enough  to  act  upon;  for  the 


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CHAP.  IV.]  PASLEY  V.  FREEMAN  531 

quo  animo  is  a  great  part  of  the  gist  of  the  action.  Another  argument 
which  has  been  made  use  of  is,  that  this  is  a  new  case,  and  that  there  is 
no  precedent  of  such  an  action.  Where  cases  are  new  in  their  principle, 
there  I  admit  that  it  is  necessary  to  have  recourse  to  legislative  inter- 
position in  order  to  remedy  the  grievance;  but  where  the  case  is  only 
new  in  the  instance,  and  the  only  question  is  upon  the  appUcation  of  a 
principle  recognized  in  the  law  to  such  new  case,  it  will  be  just  as  com- 
petent to  courts  of  justice  to  apply  the  principle  to  any  case  which  may 
arise  two  centuries  hence,  as  it  was  two  centuries  ago;  if  it  were  not, 
we  ought  to  blot  out  of  our  law-books  one  fourth  part  of  the  cases  that 
are  to  be  found  in  them.  The  same  objection  might,  in  my  opinion, 
have  been  made  with  much  greater  reason  in  the  case  of  Coggs  v. 
Barnard;  for  there  the  defendant,  so  far  from  meaning  an  injury, 
meant  a  kindness,  though  he  was  not  so  careful  as  he  should  have  been 
in  the  execution  of  what  he  imdertook.  And  indeed  the  principle  of 
the  case  does  not,  in  my  opinion,  seem  so  clear  as  that  of  the  case  now 
before  us,  and  yet  that  case  has  always  been  received  as  law.  Indeed, 
one  great  reason,  perhaps,  why  this  action  has  never  occurred  may  be 
that  it  is  not  likely  that  such  a  species  of  fraud  should  be  practised 
unless  the  party  is  in  some  way  interested.  Therefore  I  think  the  rule 
for  arresting  the  judgment  ought  to  be  discharged. 

Lord  Kenyon,  C.  J.  I  am  not  desirous  of  entering  very  fully  iuto 
the  discussion  of  this  subject,  as  the  argument  comes  to  me  quit^ 
exhausted  by  what  has  been  said  by  my  brothers.  But  still  I  wiQ  say 
a  few  words  as  to  the  grounds  upon  which  my  opinion  is  formed.  All 
laws  stand  on  the  best  and  broadest  basis  which  go  to  enforce  moral 
and  social  duties.  Though,  indeed,  it  is  not  every  moral  and  social 
duty  the  negkct  of  which  is  the  ground  of  an  action.  For  there  are, 
which  are  called  in  the  civil  law,  duties  of  imperfect  obUgation,  for  the 
enforcing  of  which  no  action  Ues.  There  are  many  cases  where  the  pure 
effusion  of  a  good  mind  may  induce  the  performance  of  particular 
duties,  which  yet  cannot  be  enforced  by  municipal  laws.  But  there  are 
certain  duties,  the  non-performance  of  which  the  jurisprudence  of  this 
country  has  made  the  subject  of  a  civil  action.  And  I  find  it  laid  down 
by  the  Lord  Ch.  B.  Com3ms  (Com.  Dig.  tit.  Action  upon  the  Case  for  a 
Deceit,  A.  1),  that  "  an  action  upon  the  case  for  a  deceit  Ues  when  a 
man  does  any  deceit  to  the  damage  of  another."  He  has  not,  indeed, 
cited  any  authority  for  his  opinion;  but  his  opinion  alone  is  of  great 
authority,  since  he  was  considered  by  his  contemporaries  as  the  most 
able  lawyer  in  Westminster  Hall.  Let  us,  however,  consider  whether 
that  proposition  is  not  supported  by  the  iuvariable  principle  in  all  the 
cajses  on  this  subject.  In  3  Bulstr.  96,  it  was  held  by  Croke,  J.,  that 
"  fraud  without  damage,  or  damage  without  fraud,  gives  no  cause  of 
action;  but  where  these  two  do  concur,  there  an  action  Ueth."  It  is 
true,  as  has  been  already  observed,  that  the  judges  were  of  opinion  in 
that  case  that  the  action  did  not  lie  on  other  grounds.    But  consider 


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532  PASLEY  V.   FREEMAN  [CHAP.  IV. 

what  those  grounds  were.  Dodd^ridge,  J.,  said :  "  If  we  shall  give  way 
to  this,  then  every  carrier  would  have  an  action  upon  the  case;  but  he 
shall  not  have  any  action  for  this,  because  it  is  merely  his  own  default 
that  he  did  not  weigh  it."  Undoubtedly,  where  the  common  prudence 
and  caution  of  man  are  sufficient  to  guard  him,  the  law  will  not  protect 
him  in  his  negUgence.  And  in  that  case,  as  reported  in  Cro.  Jac.  386, 
the  negligence  of  the  plaintiff  himself  was  the  cause  for  which  the 
Court  held  that  the  action  was  not  maintainable.  Then,  how  does  the 
principle  of  that  case  apply  to  the  present  ?  There  are  many  situations 
in  life,  and  particularly  in  the  commercial  world,  where  a  man  cannot 
by  any  diligence  inform  himself  of  the  degree  of  credit  which  ought  to 
be  given  to  the  persons  with  whom  he  deals;  in  which  cases  he  must 
apply  to  those  whose  sources  of  intelligence  enable  them  to  give  that 
information.  The  law  of  prudence  leads  him  to  apply  to  them;  and 
the  law  of  morality  ought  to  induce  them  to  give  the  information  re- 
quired. In  the  case  of  Bulstrode,  the  carrier  might  have  weighed  the 
goods  himself;  but  in  this  case  the  plaintiffs  had  no  means  of  knowing 
the  state  of  Falch's  credit  but  by  an  application  to  his  neighbors.  The 
same  observation  may  be  made  to  the  cases  cited  by  the  defendant's 
counsel  respecting  titles  to  real  property.  For  a  person  does  not  have 
recourse  to  common  conversation  to  know  the  title  of  an  estate  which 
he  is  about  to  purchase;  but  he  may  inspect  the  title-deeds;  and  he 
does  not  use  common  prudence  if  he  rely  on  any  other  security.  In  the 
case  of  Bulstrode,  the  Court  seemed  to  consider  that  damnum  and 
injuria  are  the  grounds  of  this  action;  and  they  all  admitted  that,  if 
they  had  existed  in  that  case,  the  action  would  have  lain  there;  for 
the  rest  of  the  judges  did  not  controvert  the  opinion  of  Croke,  J.,  but 
denied  the  appUcation  of  it  to  that  particular  case.  Then  it  was  con- 
tended here  that  the  action  cannot  be  maintained  for  telling  a  naked 
lie;  but  that  proposition  is  to  be  taken  sub  modo.  If,  indeed,  no 
injury  is  occasioned  by  the  lie  it  is  not  actionable;  but  if  it  be  attended 
with  a  damage,  it  then  becomes  the  subject  of  an  action.  As  calling  a 
woman  a  whore,  if  she  sustain  no  damage  by  it,  is  not  actionable;  but 
if  she  lose  her  marriage  by  it,  then  she  may  recover  satisfaction  in 
damages.  But  in  this  case  the  two  grounds  of  the  action  concur;  here 
are  both  the  damnum  et  injuria.  The  plaintiffs  appUed  to  the  defend- 
ant, telling  him  that  they  were  going  to  deal  with  Falch,  and  desiring 
to  be  informed  of  his  credit,  when  the  defendant  fraudulently,  and 
knowing  it  to  be  otherwise,  and  with  a  design  to  deceive  the  plaintiffs, 
made  the  false  assertion  which  is  stated  on  the  record,  by  which  they 
sustained  a  considerable  damage.  Then,  can  a  doubt  be  entertained 
for  a  moment  but  that  this  is  injurious  to  the  plaintiffs  ?  If  this  be  not 
an  injury,  I  do  not  know  how  to  define  the  word.  Then,  as  to  the  loss; 
this  is  stated  in  the  declaration,  and  found  by  the  verdict.  Several  of 
the  words  stated  in  this  declaration,  and  particularly /rau(iwfe?iter,  did 
not  occur  in  several  of  the  cases  cited.    It  is  admitted  that  the  defend- 


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CHAP.  IV.]  WORK  V.  CAMPBELL  633 

ant's  conduct  was  highly  immoral  and  detrimental  to  society.  And  I 
am  of  opinion  that  the  action  is  maintainable  on  the  groimds  of  deceit 
in  the  defendant,  and  injury  and  loss  to  the  plaintiffs. 

Rule  for  arresting  the  judgment  discharged} 


WORK  V.  CAMPBELL 

Supreme  Court,  California,  December  13, 1912. 

Reported  in  164  California  ReportSf  343. 

Angellotti,  J.^  The  action  is  one  to  recover  of  defendant  fifteen  thousand 
dollars'  damages  alleged  to  have  been  caused  plaintiff  by  reason  of  the  fact 
that  she  has  become  finally  separated  from  her  husband,  L.  B.  Work,  and  has 
thereby  suffered  and  will  continue  to  suffer  great  distress  of  mind  and  mental 
anguish,  and  has  lost  and  will  continue  to  lose  forever  his  society,  comfort, 
love,  and  affection,  as  well  as  the  support  and  maintenance  which  he  would 
give  her.  On  or  about  February  15,  1910,  the  husband  "  separated  from 
plaintiff,  and  from  their  said  chOdren,  and  departed  from  the  said  county  of 
Kings,  and  has  gone  to  parts  unknown  to  plaintiff  with  intent  to  desert  and 
abandon  plaintiff.''  It  is  not  alleged  that  defendant,  who  is  the  husband  of 
an  aunt  of  plaintiff,  ever  said  or  did  anything  to  influence  the  husband  to 
leave  plaintiff,  or  to  cause  any  change  of  feeling  on  his  part  toward  her.  It 
is  frankly  alleged  that  his  departure  was  caused  solely  by  the  fact  that  she 
became  very  angry  with  him,  refused  to  see  him,  refused  to  speak  or  talk 
with  him,  sent  him  a  letter  in  which  she  told  him  that  she  would  hold  no 
further  communication  with  him,  but  would  sue  him  for  a  divorce  and  that 
she  hoped  she  might  never  see  or  speak  to  him  again.  Her  complaint  char- 
acterizes her  conduct  toward  her  husband,  alleged  to  be  the  sole  inducement 
for  his  departure,  as  "  harsh  and  cruel  treatment  "  of  him.  The  claim  of  any 
liability  on  the  part  of  defendant  to  her  on  account  of  the  separation  is  based 
on  allegations  to  the  effect  that  her  attitude  and  conduct  toward  her  husband, 
which  caused  the  separation,  were  wholly  induced  by  certain  false  statements 
knowingly  made  to  her  by  defendant  concerning  her  husband,  which,  owing  to 
her  confidence  and  trust  in  defendant,  she  fully  beheved  and  relied  upon,  and 
certain  advice  and  counsel  given  to  her  by  defendant  in  the  matter,  all  of 
which  statements  and  advice  were  wilfully  made  and  given  by  defendant  with 
the  intent  and  design  on  his  part  to  cause  a  separation  between  plaintiff  and 
her  husband.  The  complaint  alleges  in  detail  the  alleged  statements  and 
advice  of  defendant  in  this  behalf,  and  also  the  object  sought  to  be  obtained 
by  him  in  causing  a  separation  of  the  husband  and  wife,  but  no  useful  purpose 
can  be  subserved  b}**  stating  these  things  here.  It  further  alleges  that  when 
she  discovered  the  falsity  of  the  representations  and  the  intent  and  purpose 

»  By  "  Lord  Tenterden's  Act,"  9  Geo.  IV.  eh.  14,  s.  6,  it  is  provided,  that  no 
action  shall  be  brought  to  charge  any  person  upon  any  representation  made  con- 
cerning the  character,  conduct,  credit,  ability,  trade,  or  dealings  of  any  other 
person,  to  the  intent  that  such  other  person  may  obtain  credit,  money,  or  goods, 
imless  such  representation  "  be  made  m  writing,  signed  by  the  party  to  oe  charged 
therewith."  Statutes  of  a  similar  nature  have  oeen  enacted  in  some  of  the  United 
States. 

'  Only  part  of  the  opinion  is  printed. 


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534  WORK  V.  CAMPBELL  [CHAP.  IV. 

of  defendant  in  making  them,  she  at  once  instituted  diligent  search  for  her 
husband,  but  has  been  unable  to  ascertain  his  whereabouts.  It  is  further  al- 
leged "  that  by  reason  of  the  premises  hereinabove  stated,  defendant  has  un« 
lawfully,  fraudulently  and  wrongfully  abducted  and  enticed  from  the  plaintiff 
her  said  husband,  and  that  by  reason  of  the  said  abduction,  this  plaintiff  has 
suffered,"  &c.,  to  her  great  damage  in  the  sum  of  fifteen  thousand  dollars. 

Under  our  statutes,  a  wife  may  maintain  an  action  for  damages  suffered 
by  her  by  reason  of  the  abduction  or  enticement  from  her  of  her  husband,  as 
may  a  husband  for  the  damages  suffered  by  him  for  the  abduction  or  entice- 
ment from  him  of  his  wife,  and  in  such  an  action  by  the  wife  her  husband  is 
not  a  necessary  party  plaintiff.  (See  Civ.  Code,  sec.  49,  subds.  1  and  2; 
Humphrey  v.  Pope,  122  Cal.  253  [54  Pac.  847].)  It  may  be  assumed,  purely 
for  the  purposes  of  this  decision,  that  no  cause  of  action  for  the  abduc- 
tion or  enticement  of  her  husband  from  her  is  stated  by  the  wife  in  her  com- 
plaint. .  .  . 

We  can  see  no  reason  why,  regardless  of  the  question  we  have  just  referred 
to,  the  matters  alleged  in  the  complaint  do  not  show  a  cause  of  action  in  be- 
half of  plaintiff  against  defendant.  According  to  the  complaint,  the  sole  cause 
of  the  conduct  of  plaintiff  causing  the  separation  of  the  husband  and  wife, 
with  the  same  injurious  consequences  to  her  that  would  have  followed  the 
abduction  or  enticement  of  her  husband  from  her,  was  the  action  of  defendant 
in  making  to  her  the  wilfully  false  representations  concerning  her  husband, 
for  the  very  purpose  and  with  the  design  on  his  part  to  so  influence  her  as  to 
bring  about  such  a  separation.  His  deception  in  the  matter  was  the  sole  cause 
of  such  conduct  on  her  part,  and  such  conduct  on  her  part  was  tantamount  to 
a  refusal  by  her  to  continue  the  relation  between  her  husband  and  herself  of 
husband  and  wife.  It  is  declared  in  section  1708  of  the  Civil  Code  that 
'^  every  person  is  bound,  without  contract,  to  abstain  from  injuring  the  person 
or  property  of  another,  or  infringing  upon  any  of  his  rights,"  and  in  section 
1709,  **  one  who  wilfully  deceives  another  with  intent  to  induce  him  to  alter 
his  position  to  his  injury  or  risk,  is  liable  for  any  damage  which  he  thereby 
suffers."  These  are  but  statements  of  the  well  settled  law  independent  of 
statute.  It  is  substantially  said  in  20  Cyc.  at  page  10,  and  the  statement  is 
well  supported  by  the  authorities,  that  as  a  general  rule,  an  action  for  dam- 
ages for  deceit  will  lie  wherever  a  party  has  made  a  false  representation  of  a 
material  fact  susceptible  of  knowledge  knowing  it  to  be  false  or  not  having 
sufficient  knowledge  on  the  subject  to  warrant  the  representation,  with  the 
intent  to  induce  the  person  to  whom  it  is  made,  in  reliance  upon  it,  to  do  or 
refrain  from  doing  something  to  his  pecuniary  hurt,  when  such  person,  acting 
with  reasonable  prudence,  is  thereby  deceived  and  induced  to  so  do  or  refrain, 
to  his  damage.  No  reason  is  apparent  to  us  why  the  alleged  facts  set  forth  in 
the  complaint  should  not  be  hdd  to  bring  the  case  within  the  operation  of  this 
rule. 

It  is  no  answer  to  such  an  action  that  the  action  or  conduct  of  the  plaintiff 
is  the  direct  cause  of  the  result  occasioning  damages.  Such  is  the  situation 
wherever  such  an  action  is  allowed.  The  whole  basis  of  the  action  is  that 
such  act  or  conduct  is  fraudulently  induced  by  the  defendant.  A  is  wilfully 
deceived  by  B  into  selling  goods  to  C  upon  credit,  by  false  representations  as 
to  C*s  solvency  wilfully  and  knowingly  made  by  B  to  A  for  the  very  purpose 
of  inducing  him  to  so  do  and  thereby  suffers  a  pecuniary  injury.  The  direct 
and  inunediate  cause  of  the  injury  is,  of  course,  the  sale  by  A  to  C  on  credit. 


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CHAP.  IV.]  STATE  V.  GORDON  535 

But  B  is  held  liable  to  A  for  the  damage  thereby  suffered  because  by  fraud  he 
induced  A  to  make  such  sale  on  credit. 

It  may  be  urged  that  a  person  fraudulently  misled  cannot  found  his  claim 
on  conduct  violative  of  sound  morals  or  public  policy,  or  of  a  criminal  statute. 
Here  the  conduct  and  attitude  of  the  wife  causing  the  separation  was  her 
harsh  and  cruel  conduct  toward  her  husband,  her  refusal  to  live  with  him  or 
to  see  him,  her  refusal  to  further  continue  the  relationship  of  husband  and 
wife,  (fee.  Of  course,  all  her  conduct  would  have  been  fully  justified  if  the 
representations  made  to  her  by  defendant  had  been  true  in  point  of  fact,  as 
the  complaint  sufficiently  alleges  that  plaintiff  believed  to  be  the  situation. 
It  has  been  held  that  where  the  fraudulent  representation  is  intended  to 
create  and  actually  does  create  in  the  mind  of  the  party  a  belief  that  under 
the  circumstances  represented  the  act  which  he  is  induced  to  do  is  neither 
illegal  nor  immoral,  he  may  recover  the  damages  he  has  sustained  even  though 
a  statute  makes  the  act  a  criminal  offence.  (See  20  Cyc.  80;  Burrows  v. 
Rhodes,  [1899]  1  Q.  B.  816;  Prescott  v.  Norris,  32  N.  H.  101;  Morrill  v. 
Pahner,  68  Vt.  1  [33  L.  R.  A.  411,  33  Atl.  829].)  We  are  not  caUed  upon  to 
go  as  far  as  this  in  this  case.  The  complaint  indicates  no  criminal  offence  on 
plaintiff's  part.  Certainly,  however,  under  the  circumstances  stated,  it  can- 
not fairly  be  said  that  plaintiff  did  not  believe  her  conduct  toward  her  hus- 
band to  be  in  full  accord  with  good  morals  and  public  policy,  or  was  not 
justified  in  so  believing.  It  is  not  claimed  that  the  complaint  does  not  suffi- 
ciently show  that  plaintiff  acted  with  reasonable  prudence  in  accepting  as 
true  and  relying  on  defendant's  statements.  In  view  of  the  circumstances 
alleged  as  to  her  relationship  to  defendant,  and  her  confidence  and  trust  in 
him,  we  think  the  complaint  is  not  fatally  defective  in  this  r^ard,  although 
it  must  be  conceded  to  be  somewhat  remarkable  that  a  wife  having  any  affec- 
tion for  or  confidence  in  her  husband  should  be  willing  to  accept  as  true  such 
statements  as  are  here  alleged  to  have  been  made  to  her,  without  making  some 
further  inquiry. 

We  have  not  found  any  case  in  which  the  remedy  of  action  for  damages  for 
deceit  has  been  invoked  under  such  circumstances  as  appear  here.  The  fact 
that  the  case  presented  is  unique  in  its  circumstances  is  not,  however,  any 
warrant  for  a  refusal  to  apply  a  rule  that  appears,  on  principle,  to  be  appli- 
cable. We  think  the  facts  confessed  by  the  demurrer  show  a  liability  on  the 
part  of  defendant  to  plaintiff  for  any  damage  caused  her  by  the  loss  of  her 
husband.^ 

STATE  V.  GORDON 

Supreme  Court,  Kansas,  July  Term,  1895. 

Reported  in  56  Kansas  Reports^  64. 

Gordon  was  convicted  and  sentenced  in  the  District  Court  upon  a 
charge  of  obtaining  money  from  Trenier  on  false  pretences.    He  ap- 
pealed from  the  judgment. 
The  facts  alleged  and  proved  were,  in  brief,  as  follows:  — 
Gordon  represented  to  Trenier  that  Gordon  and  a  certain  Indian 
owned  and  possessed  a  gold  brick  of  the  value  of  $10,000;  that  they 

1  Cf.  Lillegren  v.  Bums,  135  Minn.  60. 


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536  STATE  V.  GORDON  [CHAP.  IV. 

were  about  to  take  the  brick  to  the  United  States  Mint  at  Philadel- 
phia to  be  coined  into  money;  that  the  Indian  would  not  allow  the 
brick  to  be  taken  to  the  mint  unless  he  received  a  certain  sum  of  money 
on  his  interest  in  the  brick.  Gordon  told  Trenier  that,  if  Trenier  would 
give  Gordon  money  to  pay  the  Indian  on  his  share  in  the  brick,  he 
(Gordon)  would  deliver  said  brick  to  Trenier  to  be  by  Trenier  taken 
to  the  mint,  and  that  Trenier  should  have  a  third  interest  in  the  money 
coined  from  the  brick.  Relying  on  these  statements,  Trenier  gave 
Gordon  money  to  pay  the  Indian. 

It  appeared  that  Gordon  and  the  Indian  did  not  own  or  possess 
a  gold  brick;  that  the  representations  were  all  known  by  Gordon  to 
be  false;  and  that  they  were  made  for  the  purpose  of  defrauding 
Trenier.^ 

Johnston,  J.  .  .  .  The  substantial  features  of  the  charge  were  rep- 
resentations and  assurances  of  present  existing  facts,  viz.,  that  Gordon 
and  the  Indian  were  then  the  owners  and  possessors  of  a  valuable  gold 
brick,  which  they  then  had  in  Shawnee  County,  and  that  they  were 
then  on  their  road  to  take  the  gold  brick  to  the  United  States  Mint 
at  Philadelphia  to  be  coined.  It  is  allied  that  on  the  faith  of  these 
representations  and  the  assurance  of  those  facts  the  money  was  ob- 
tained from  Trenier.  The  mere  fact  that  a  false  pretence  of  an  exist- 
ing or  past  fact  is  accompanied  by  a  future  promise  will  not  relieve 
the  defendant  or  take  the  case  out  of  the  operation  of  the  statute. 
Besides, 

"  It  is  not  necessary,  to  constitute  the  offence  of  obtaining  goods  by 
false  pretences,  that  the  owner  has  been  induced  to  part  with  his  prop- 
erty solely  and  entirely  by  pretences  which  are  false;  nor  need  the 
pretences  be  the  paramount  cause  of  the  delivery  to  the  prisoner.  It 
is  sufficient  if  tbey  are  a  part  of  the  moving  cause,  and  without 
them  the  defrauded  party  would  not  have  parted  with  the  property.'* 
(In  re  Snyder,  17  Kan.  542.) 

[Remainder  of  opinion  omitted.] 

Judgment  affirmed? 

*  Statement  abridged.    Only  part  of  opinion  is  given. 

«  In  Aaron's  Reefs  Ltd.  v.  Twiss,  [1896]  A.  C.  273,  280-281,  Lord  Halsbury, 
L.  C,  sayig:  "  I  must  protest  against  it  bemg  supposed  that  in  order  to  prove  a 
case  of  this  character  of  fraud,  and  that  a  certain  course  of  conduct  was  mduced 
by  it,  a  person  is  bound  to  be  able  to  explain  with  exact  precision  what  was  the 
mental  process  by  which  he  was  induced  to  act.  It  is  a  question  for  the  jury.  If 
a  man  said  he  was  induced  by  such  and  such  an  inducement  held  out  in  the  pro- 
spectus, I  should  not  think  that  conclusive.  It  must  be  for  the  jury  to  say  what 
tney  believed  upon  the  evidence.  Looking  at  the  evidence  in  this  case,  I  should 
say  if  I  were  a  juryman  that  this  was  a  very  fascinating  prospectus,  and  was  cal- 
culated to  induce  any  one  who  believed  the  statements  in  it  to  invest  his  money  in 
the  concern." 

In  Mathews  ».  Bliss^  22  Pick.  48,  Shaw,  C.  J.,  says:  "  The  judge  further  in- 
structed the  jury,  that  m  order  to  maintain  this  action,  they  must  be  satisfied  that 
the  defendants  had  made  the  false  representation,  and  that  the  sale  was  produced 
by  means  of  it;  that  it  was  not  necessary  that  it  should  be  the  sole  and  only 
motive  inducing  the  sale,  but  it  must  have  been  a  predominant  one.    In  this  par- 


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CHAP.  IV.]  EDGINGTON  V.  FITZMAURICE  637 

EDGINGTON  v.  FITZMAURICE 
In  the  Court  op  Appeal,  March  7, 1885. 
Reported  in  Law  Reports,  29  Chancery  Division,  459. 

Action  against  Fitzmaurice  et  als.,  directors  of  the  Army  and  Navy 
Provision  Market  (Limited),  and  against  Hunt,  the  secretary,  and 
Hanley,  the  manager,  asking  for  the  repa3anent  by  them  of  a  simi  of 
£1500  advanced  by  the  plaintiff  on  debentures  of  the  company,  on  the 
ground  that  he  was  induced  to  advance  the  money  by  the  fraudulent 
misrepresentations  of  the  defendants. 

Plaintiff,  who  was  a  shareholder  in  the  company,  received  a  pro- 
spectus issued  by  order  of  the  directors,  inviting  subscription  for 
debenture  bonds.  This  prospectus  contained  the  following  statement 
as  to  the  objects  for  which  the  issue  of  debentures  was  made:  — 

"  1.  To  enable  the  society  to  complete  the  present  alterations  and 
additions  to  the  buildings,  and  to  purchase  their  own  horses  and  vans, 
whereby  a  large  saving  will  be  effected  in  the  cost  of  transport. 

"  2.  To  further  develop  the  arrangements  at  present  existing  for 
the  direct  supply  of  cheap  fish  from  the  coast,  which  are  still  in  their 
infancy." 

Plaintiff  took  debenture  bonds  to  the  amount  of  £1500;  and  testi- 
fied that  he  relied,  as  one  inducement,  on  the  fact  that  the  company 
wanted  the  money  for  the  objects  stated  in  the  prospectus. 

At  the  hearing  before  Denman,  J.,  the  plaintiff  contended  and  of- 
fered evidence  tending  to  show  that  the  real  object  of  the  directors  in 
issuing  the  debentures  was  to  pay  off  pressing  liabiUties  of  the  com- 
pany, and  not  to  complete  the  buildings  or  to  purchase  horses  and 
vans,  or  to  develop  the  business  of  the  company.^ 

Davey,  Q.  C,  W.  W.  Karslake,  Q.  C,  and  J.  Kaye,  for  Fitzmaurice. 

ticular,  the  Court  are  of  opinion,  that  the  direction,  as  it  may  ha^e  been  and  prob- 
ably was  understood  bv  the  jury,  was  not  strictly  correct;  though  it  may  have 
been  so  qualified  and  illustrated  as  to  prevent  the  jury  from  being  misled  by  it. 

The  term  '  predominant/  in  its  natural  and  ordinary  signification,  is  under- 
stood to  be  something  greater  or  superior  in  power  and  influence  to  others,  with 
which  it  is  connected  or  compared.  So  understood,  a  predominant  motive,  when 
several  motives  may  have  operated,  is  one  of  greater  force  and  effect,  in  producing 
the  given  result,  than  any  other  motive.  But  the  Court  are  of  opinion,  that  if  the 
false  and  fraudulent  representation  was  a  motive  at  all,  inducm^  to  the  act,  if 
it  was  one  of  several  motives,  acting  together,  and  by  their  combmed  force  pro- 
ducing the  result,  it  should  have  been  left  to  the  jury  so  to  find  it.  If  the  f^se 
suggestion  had  no  influence,  if  the  plaintiff's  agent  woiild  have  done  the  same  thing 
and  made  the  sale  if  such  representation  had  not  been  made,  then  it  was  not  a 
motive  to  the  act,  and  the  plaintiff's  agent  was  not  induced  to  seU  by  means  of  it. 
On  the  whole,  considering  tnat  the  ordinary  and  natural  meaning  of  the  term  *  pre- 
dominant,' when  applied  to  one  amon^  several  motives,  is  such  as  has  been  stated, 
that  the  jury  may  have  so  vmderstood  it,  and  if  they  did  so  understand  it,  they  may 
have  come  to  a  verdict  not  warranted  by  law,  upon  the  evidence  before  them,  the 
Court  are  of  opinion,  that  the  verdict  ought  to  be  set  aside,  and  a  new  trial 
granted." 

^  The  case  has  been  much  abridged,  and  the  greater  part  of  the  report  omitted. 


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538  EDGINGTON  V.  FITZMAURICE  [CHAP.  IV. 

There  was  no  misrepresentation  of  any  fact,  and  the  directors 
merely  stated  their  intention  as  to  the  money,  which  of  course  they 
might  alter.  There  is  every  difference  between  the  two:  Maddison  v. 
Alderson,  8  App.  Cases,  467.  Unless  it  amounts  to  a  contract,  a 
mere  statement  that  you  will  do  something  is  of  no  effect:  Jordan  v. 
Money,  5  H.  L.  C.  186;  and  if  it  was  a  contract  then  it  was  with  the 
company,  and  the  directors  cannot  be  sued:  Ferguson  v.  Wilson,  L.  R. 
2  Chan.  77. 

Sir  F.  HerscheUy  in  reply.  An  allegation  of  intention  may  be  fraud- 
ulent: Ex  parte  Whittaker,  L.  R.  10  Chan.  446. 

[Denman,  J.,  deUvered  an  elaborate  opinion,  substantially  sus- 
taining the  plaintiff's  contention.  He  gave  judgment  against  the 
directors.] 

From  this  judgment,  Fitzmaurice  and  the  foiu*  other  directors 
appealed. 

BowEN,  L.  J.  [After  stating  the  requisites  of  an  action  for  deceit, 
and  commenting  upon  other  allied  misrepresentations.]  But  when 
we  come  to  the  third  alleged  misstatement  I  feel  that  the  plaintiff's 
case  is  made  out.  I  mean  the  statement  of  the  objects  for  which  the 
money  was  to  be  raised.  These  were  stated  to  be  to  complete  the 
alterations  and  additions  to  the  buildings,  to  pmrchase  horses  and  vans, 
and  to  develop  the  supply  of  fish.  A  mere  suggestion  of  possible  pur- 
poses to  which  a  portion  of  the  money  might  be  applied  would  not  have 
formed  a  basis  for  an  action  of  deceit.  There  must  be  a  misstatement 
of  an  existing  fact;  but  the  state  of  a  ihan's  mind  is  as  much  a  fact  as 
the  state  of  his  digestion.  It  is  true  that  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.  A  misrepresentation 
as  to  the  state  of  a  man's  mind  is,  therefore,  a  misstatement  of  fact. 
Having  applied  as  careful  consideration  to  the  evidence  as  I  could,  I 
have  reluctantly  come  to  the  conclusion  that  the  true  objects  of  the  de- 
fendants in  raising  the  money  were  not  those  stated  in  the  circular.  I 
will  not  go  through  the  evidence,  but  looking  only  to  the  cross-exami- 
nation of  the  defendants,  I  am  satisfied  that  the  objects  for  which  the 
loan  was  wanted  were  misstated  by  the  defendants,  I  will  not  say 
knowingly,  but  so  recklessly  as  to  be  fraudulent  in  the  eye  of  the 
law. 

Then  the  question  remains:  Did  this  misstatement  contribute  to 
induce  the  plaintiff  to  advance  his  money.  Mr.  Davey's  argument  has 
not  convinced  me  that  they  did  not.  He  contended  that  the  plaintiff 
admits  that  he  would  not  have  taken  the  debentures  unless  he  had 
thought  they  would  give  him  a  charge  on  the  property,  and  therefore 
he  was  induced  to  take  them  by  his  own  mistake,  and  the  misstate- 
ment in  the  circular  was  not  material.  But  such  misstatement  was 
material  if  it  was  actively  present  to  his  mind  when  he  decided  to  ad- 
vance his  money.    The  real  question  is,  what  was  the  state  of  the 


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CHAP.  IV.]  GALLAGHER  V.  BRUNEL  539 

plaintiff's  mind,  and  if  his  mind  was  disturbed  by  the  misstatement  of 
the  defendants,  and  such  disturbance  was  in  part  the  cause  of  what  he 
did,  the  mere  fact  of  his  also  making  a  mistake  himself  could  make  no 
difference.  It  resolves  itself  into  a  mere  question  of  fact.  I  have  felt 
some  difficulty  about  the  pleadings,  because  in  the  statement  of  claim 
this  point  is  not  clearly  put  forward,  and  I  had  some  doubt  whether 
this  contention  as  to  the  third  misstatement  was  not  an  afterthought. 
But  the  balance  of  my  judgment  is  weighed  down  by  the  probability  of 
the  case.  What  is  the  first  question  which  a  man  asks  when  he  ad- 
vances money  ?  It  is,  what  is  it  wanted  for  ?  Therefore  I  think  that 
the  statement  is  material,  and  that  the  plaintiff  would  be  unlike  the 
rest  of  his  race  if  he  was  not  influenced  by  the  statement  of  the  objects 
for  which  the  loan  was  required.  The  learned  judge  in  the  Court 
below  came  to  the  conclusion  that  the  misstatement  did  influence  him, 
and  I  think  he  came  to  a  right  conclusion.  Appeal  dismissed} 


GALLAGHER  v.  BRUNEL 
Supreme  Court,  New  York,  August,  1826. 

Reported  in  6  Cowen,  347. 

On  demurrer  to  the  declaration.  The  first  count  stated,  that  on  the 
9th  of  April,  1823,  Castro  &  Henriques  proposed  to  purchase  of  the 
plaintiffs  a  quantity  of  cotton,  at  a  certain  price;  part  to  be  paid  in 
cash,  and  part  to  be  secured  by  the  promissory  note  of  the  purchasers 
endorsed  by  the  defendant,  at  four  months;  that  C.  &  H.  were  then 
imable  to  pay  for  the  cotton;  and  the  plaintiffs  therefore  unwilling  to 
sell  all,  or  any  part,  on  their  sole  credit;  and  the  defendant  knew  this. 
Yet,  contriving  and  intending  to  injure  and  defraud  the  plaintiffs;  and 
to  induce  them  to  sell  and  deliver  the  cotton  to  C.  &  H.;  and  thereby 
subject  the  plaintiffs  to  the  loss  of  the  balance  due  after  the  cash  pay- 
ment, the  defendant  falsely  and  deceitfully  represented  and  held  out 
to  the  plaintiffs,  that  he,  the  defendant,  was  willing  to  endorse  the 
proposed  note;  and  with  the  like  intent,  &c.,  falsely,  fraudulently, 
and  deceitfully  encouraged  and  induced  the  plaintiffs  to  sell  and  de- 
Uver  the  cotton.  That  they  did  sell  and  deliver  it,  in  confidence  of 
such  false,  fraudulent  and  deceitful  representation,  &c.,  when,  in 

1  CockriU  V,  Hall,  65  Cal.  326;  United  States  Home  Co.  v,  O'Connor.  48  Col. 
354;  Lynch  v.  Hall,  41  Conn.  238:  Jones  v.  Crawford,  107  Ga.  318:  Hinchey  v, 
Starrett,  91  Kan.  181;  Oldham  v.  Bentley,  6  B.  Mon.  428;  Price  v.  Read,  2  Har. 
&  G.  291 ;  Adams  v.  Anderson,  4  Har.  &  J.  558;  Sweet  v.  Kimball,  166  Mass.  332; 
Garry  v.  Garry,  187  Mass.  62:  McElrath  v.  Electric  Investment  Co.,  114  Minn. 
358;  Holmes  v.  Wilkes,  130  Mmn.  170;  Cemy  v.  Paxton  Co.,  78  Neb.  134;  Gabriel 
V.  Graham,  168  App.  E>iv.  847;  American  Hosiery  Co.  v.  Baker,  18  Ohio  Cir.  Ct.  R. 
604;  Standard  Elevator  Co.  v.  Wilson,  218  Pa.  St.  280;  Bowe  v.  Gage,  127  Wis. 
245  Accord,    See  also  Wilson  v.  Yocum,  77  la.  569. 


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540  GALLAGHER  V.  BRUNEL  [CHAP.  IV. 

truth,  the  defendant  was  then  not  willing,  and  did  not  mean  or  intend 
to  endorse  the  note,  or  make  himself  responsible;  nor  did  he  then,  nor 
had  he  at  any  time  since  endorsed,  or  made  himself  legally  responsible. 
By  means  whereof  the  plaintiffs  lost  the  cotton  and  the  price. 

The  second  count  averred,  that  C.  &  H.  were  in  bad  credit  and  unfit 
to  be  trusted,  at  the  time  of  the  sale.  But  the  defendant,  well  knowing 
this;  and  contriving  and  intending  to  defraud  and  injure  the  plaintiffs, 
and  wrongfully  and  deceitfully  to  enable  C.  &  H.  to  obtain  the  pos- 
session of  the  cotton,  and  Convert  it  to  their  own  use,  without  paying 
the  plaintiffs  for  it;  falsely,  fraudulently  and  deceitfully  represented 
to  the  plaintiffs,  and  gave  them  to  understand  and  believe,  that,  in 
case  they  would  sell  the  cotton  to  C.  &  H.,  the  defendant  would  be- 
come answerable  to  the  plaintiffs,  for  so  much  as  should  be  unpaid,  by 
endorsing  the  note  or  notes  of  C.  &  H.,  &c.;  that  without  such  repre- 
sentation, they  would  not  have  sold  the  cotton,  Ac.  {In  other  respects, 
this  count  vxis  substantially  the  same  as  the  first.) 

General  demurrer  and  joinder.^ 

WooDWORTH,  J.  .  .  .  The  attempt  here  is,  to  sustain  the  action, 
not  on  a  contract,  which,  if  in  writing,  might  perhaps  be  obligatory; 
but  on  a  deceitful  representation.  If  the  promise  was  in  writing,  I  per- 
ceive no  objection  to  its  validity,  inasmuch  as  a  good  consideration  is 
stated,  viz.,  that  if  the  plaintiffs  would  sell  and  deliver,  the  defendant 
would  endorse.  If,  then,  there  is  a  binding  contract  existing  between 
the  parties,  and  on  which  the  defendant  is  liable,  I  apprehend  it  is  not 
competent  for  the  plaintiffs  to  say  they  have  an  election  to  turn  this 
into  an  action  for  deceit,  and  recover  in  that  form,  imless  the  case  is 
such  as  to  render  the  party  liable,  not  only  on  the  contract;  but  in 
addition,  contains  facts  sufficient  to  sustain  an  action  for  deceit.  For 
example,  suppose  A  represents  B  to  be  solvent,  knowing  it  to  be  false, 
whereby  B  obtains  credit;  but  notwithstanding  this  representation, 
the  seller  takes  from  A  his  written  stipulation  to  guaranty  the  pay- 
ment. In  this  case,  I  perceive  no  objection  to  a  creditor's  election  of 
the  remedy.  The  fraudulent  representation  of  solvency  would  sustain 
the  action  for  deceit.  The  written  guaranty  would  support  an  action 
on  the  contract.  It  seems,  therefore,  inmiaterial  here,  whether  the 
plaintiffs  have  or  have  not  a  demand  which  may  be  enforced  in  a  dif- 
ferent form.  The  question  is,  will  the  facts  stated  sustain  an  action  for 
deceit  ? 

After  attentive  consideration,  I  am  inclined  to  think  the  plaintiffs 
are  not  entitled  to  recover.  However  reprehensible  the  conduct  of  the 
defendant  may  appear  in  a  moral  point  of  view,  we  cannot  deny  to  him 
the  protection  of  the  conMnon  law;  which  does  not  reach  cases  of  im- 
perfect obligation.  If  this  be  an  attempt  on  the  part  of  the  plaintiffs 
to  get  rid  of  the  statute  of  frauds,  I  can  only  say,  the  occasion  justified 
the  experiment,  and  calls  for  a  patient  and  critical  examination. 

^  Arguments  and  part  of  opinion  omitted. 


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CHAP.  IV.]  GALLAGHER  V.  BRUNEL  541 

If  this  case  is  stripped  of  the  general  allegations  in  the  declaration, 
of  fraud  and  deceit,  it  appears  to  me  that  the  gravamen  is  nothing 
more  than  that  the  defendant  encouraged  the  plaintiffs  to  sell  to 
Castro  and  Henriques;  and,  as  surety,  promised  to  endorse  their 
notes.  The  intention  of  the  party  not  to  fulfil,  has  not,  I  believe,  ever 
been  considered  among  the  fraudulent  acts,  which,  in  judgment  of  law, 
render  a  party  liable.  The  maker  of  a  promissory  note  may  not,  at  the 
time,  intend  to  make  payment.  On  this  note,  the  plaintiff  may  de- 
clare that  the  defendant  intended  to  deceive  and  defraud;  but  it  is 
mere  matter  of  form,  sanctioned  by  precedent  in  pleading.  The  maker 
may  go  farther,  and  on  the  strength  of  assurances  to  pay  punctually, 
never  intended  to  be  performed,  induce  the  lender  to  part  with  his 
money,  and  accept  the  borrower's  note.  All  this  is  inunoral.  Still  the 
remedy  is  on  the  contract.  The  law  has  not  recognized  it  as  the  sub- 
stantive ground  of  fraud.  That  no  cases  are  to  be  met  with  in  the 
books  going  the  length  contended  for,  is  good  evidence  that  the  doc- 
trine is  novel,  and  has  never  been  acted  upon. 

It  is  evident  what  must  be  the  species  of  fraud,  for  which  the  law 
gives  redress;  falsehood  as  to  an  existing  fact.  If,  as  Buller,  J.,  ob- 
serves, every  deceit  includes  a  lie,  it  follows,  that  the  representation, 
and  promise  of  the  defendant  are  not  comprised  within  the  legal  ac- 
ceptation of  that  term.  The  test  of  a  lie  is,  that  the  fact  asserted  is 
not  true  at  the  time;  which  cannot  be  predicated  of  the  facts  in  this 
case;  for,  although  the  defendant  promised  with  the  intent  not  to  per- 
form, it  was  not  then  false,  nor  could  it  be.  It  referred  to  an  act  to  be 
done  in  futuro.  Until  the  defendant  had  refused  to  endorse,  it  could 
not  be  said  he  had  violated  his  promise. 

Judgment  far  defendant} 

1  Harriage  v.  Daley,  121  Ark.  23;  Dickinson  v,  Atkins,  100  HI.  App.  401; 
McAllister  v.  Indianapolb  R.  Co.,  15  Ind.  11;  Welshbillig  v,  Dienhart,  65  Ind.  94; 
Long  V.  Woodman,  58  Me.  49;  Davis  v,  Reynolds,  107  Me.  61;  Bullock  v.  Woold- 
ridge,  42  Mo.  App.  356:  Wolters  v.  Fidelity  Trust  Co.,  73  N.  J.  Law,  57  Accord. 
See  also  Bennett  v.  Mclntire,  121  Ind.  231. 

In  Adams  v,  Gillig,  199  N.  Y.  314,  plaintiff  sued  in  equity  for  cancellation  of  a 
conveyance  procured  by  falsely  representing  that  defendant  intended  to  build  a 
dwelling  on  the  land,  when  his  real  intention  was  to  build  a  garage.  Chase,  J., 
said  (pp.  320-322) :  '^  A  promise  as  such  to  be  enforceable  must  be  based  upon  a 
consiaeration,  and  it  must  be  put  in  such  form  as  to  be  available  under  the  rules 
relating  to  contracts  and  the  admission  of  evidence  relating;  thereto.  It  may  in- 
clude a  present  intention,  but  as  it  also  relates  to  the  future  it  can  only  be  enforced 
as  a  promise  under  the  general  rules  relating  to  contracts. 

A  mere  statement  of  intention  is  a  different  thing.  It  is  not  the  basis  of  an 
action  on  contract.  It  may  in  good  faith  be  changed  without  affecting  the  obliga- 
tions of  the  parties.  A  statement  of  intention  does  not  relate  to  a  fact  that  has  a 
corporal  andphysical  existence,  but  to  a  material  and  existing  fact  nevertheless  not 
amounting  to  a  promise  but  which  as  in  the  case  under  discussion  affects  and  deter- 
mines important  transactions.  The  question  here  under  discussion  is  not  affected 
by  the  rules  relating  to  the  admission  of  testimony.  As  it  was  not  promissory  and 
contractual  in  its  nature  there  is  nothing  in  the  rules  of  evidence  to  prevent  oral 


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542  SWIFT  V.  ROUNDS  [CHAP.  IV. 

SWIFT  V.  ROUNDS 

SuPREBiE  Court,  Rhode  Island,  July  6, 1896. 

Reported  in  19  Rhode  Island  Reports,  527. 

Trespass  on  the  Case  for  deceit.  Certified  from  the  Common 
Pleas  Division  on  demurrer  to  the  declaration. 

TiLLiNGHAST,  J.  This  is  trespass  on  the  case  for  deceit.  The  first 
count  in  the  declaration  alleges  that  the  defendant,  intending  to  de- 
ceive and  defraud  the  plaintiffs,  did  buy  of  them  on  credit  certain 
goods  and  chattels  of  the  value  of  $400,  the  said  defendant  not  then 
and  there  intending  to  pay  for  the  same,  but  intending  wickedly  and 
fraudulently  to  cheat  the  plaintiffs  out  of  the  value  of  said  goods  and 
chattels,  which  said  sum  of  $400  the  defendant  refuses  to  pay,  to  the 
plaintiffs'  damage,  &c.  The  second  count,  after  setting  out  the  fraudu- 
lent conduct  aforesaid,  alleges  that  the  defendant  thereby  then  and 
there  represented  that  he  intended  to  pay  for  said  goods,  but  that  he 
did  not  then  and  there  intend  to  pay  for  the  same,  but  wickedly  and 
fraudulently  intended  to  cheat  the  plaintiffs  out  of  the  value  of  said 
goods  and  chattels,  &c. 

To  this  declaration  the  defendant  has  demurred,  and  for  grounds  of 
demurrer  to  the  first  count  thereof,  he  sa3rs,  (1)  that  the  plaintiffs  do 
not  allege  any  false  representation  by  the  defendant;  (2)  that  the 
plamtiffs  do  not  allege  that  they  have  acted  upon  any  false  represen- 
tation of  the  defendant;  and  (3)  that  the  plaintiffs  do  not  allege  any 
damage  suffered  by  them  in  acting  upon  any  false  representation  of 
the  defendant. 

Eroof  of  the  representations  made  by  the  defendant  to  the  plaintiff.    In  an  action 
rought  expressly  upon  a  fraud,  oral  evidence  of  facts  to  show  the  fraud  is  ad- 
missmie.     (Pomeroy's  Equity  Jurisprudence,  Sec.  889.) 

This  case  stands  exactly  as  it  would  have  stood  if  the  plaintiff  and  defendant 
before  the  execution  and  delivery  of  the  deed  had  entered  into  a  writing  by  which 
the  defendant  had  stated  therein  his  intention  as  found  by  the  court  on  the  trial 
and  the  plaintiff  had  stated  her  acceptance  of  his  offer  based  upon  her  beUef  and 
faith  in  his  statement  of  intention,  and  it  further  appeared  that  the  statement  was 
so  made  bv  the  defendant  for  the  purpose  of  inducing  the  plaintiff  to  sell  to  him  the 
lot,  and  that  such  statement  was  so  made  bv  him  falsely,  fraudulently  and  pur- 
posely for  the  purpose  of  bringing  about  such  sale. 

Intent  is  of  vital  importance  in  very  manv  transactions.  In  the  criminal  courts 
it  is  necessary  in  many  cases  for  jurors  to  determine  as  a  question  of  fact  the  in- 
tent of  the  person  charged  with  the  crime.  Frequently  the  life  or  liberty  of  the 
prisoner  at  the  bar  depends  upon  the  determination  of  such  question  of  fact.  In 
civil  actions  relating  to  wron^,  the  intent  of  the  party  charged  with  the  wrong  is 
frequently  of  controlling  effect  upon  the  conclusion  to  be  reached  in  the  action. 
The  intent  of  a  person  is  sometimes  difficult  to  prove,  but  it  is  nevertheless  a  fact 
and  a  material  and  existing  fact  that  must  be  ascertained  in  many  cases,  and  when 
ascertained  determines  the  rights  of  the  parties  to  controversies.  The  intent  of 
GilUg  was  a  material  existing  fact  in  this  case,  and  the  plaintiff's  reliance  upon 
such  fact  induced  her  to  enter  into  a  contract  that  she  would  not  otherwise  have 
entered  into.  The  effect  of  such  false  statement  by  the  defendant  of  his  intention 
caimot  be  cast  aside  as  immaterial  simply  because  it  was  possible  for  him  in  good 
faith  to  have  changed  his  mind  or  to  have  sold  the  property  to  another  who  might 


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CHAP.  IV.]  SWIFT  V.  ROUNDS  643 

The  grounds  of  demurrer  to  the  second  count  are,  (1)  that  the  plain- 
tiffs do  not  allege  any  false  representation  by  the  defendant  as  to  any 
fact  present  or  past,  but  only  as  to  something  that  would  happen  in 
the  future,  which,  if  in  the  future  it  proved  not  to  be  true,  would  not 
be  the  subject  matter  of  a  false  representation,  but  simply  a  promise 
broken,  and  therefore  not  a  ground  of  an  action  of  deceit;  (2)  that 
the  plaintiffs  do  not  allege  that  they  acted  upon  any  false  representa- 
tion made  by  the  defendant;  and  (3)  that  the  plaintiffs  do  not  allege 
that  they  suffered  any  damage  by  acting  upon  any  false  representation 
made  by  the  defendant  to  the  plaintiffs. 

We  are  inclined  to  the  opinion,  after  some  hesitation,  that  the  dec- 
laration states  a  case  of  deceit.  Any  fraudulent  misrepresentation 
or  device  whereby  one  person  deceives  another,  who  has  no  means  of 
detecting  the  fraud,  to  his  injury  and  damage,  is  a  sufficient  ground 
for  an  action  of  deceit.  Deceit  is  a  species  of  fraud,  and  consists  of 
any  false  representation  or  contrivance  whereby  one  person  over- 
reaches and  misleads  another,  to  his  hurt.  And,  while  the  fraudulent 
misrepresentation  reUed  upon  usually  consists  of  statements  made  as 
to  material  facts,  either  verbally  or  in  writing,  yet  it  may  be  made  by 
conduct  as  well.  Grinnell  on  Law  of  Deceit,  p.  35.  A  man  may  not 
only  deceive  another,  to  his  hurt,  by  deliberately  asserting  a  false- 
hood, as,  for  instance,'  by  stating  that  A.  is  an  honest  man  when  he 
knows  him  to  be  a  rogue,  or  that  a  horse  is  sound  and  kind  when  he 
knows  him  to  be  unsound  and  vicious,  but  also  by  any  act  or  de- 
meanor which  would  naturally  impress  the  mind  of  a  careful  man 
with  a  mistaken  belief,  and  form  the  basis  of  some  change  of  position 
by  him.  1  Story,  Eq.  Jur.  §  192.  In  Ex  parte  Whittaker,  In  re 
Shackleton,  L.  R.  10  Ch.  449,  MeUish,  L.  J.,  says:  "  It  is  true,  in- 

have  a  different  purpose  relating  thereto.  As  the  defendant's  intention  was  subject 
to  change  in  good  faith  at  any  time  it  was  of  uncertain  value.  It  was,  however, 
of  some  value.  It  was  of  sufficient  value  so  that  the  plaintiff  was  willing  to  stand 
upon  it  and  make  the  conveyance  in  reliance  upon  it. 

The  use  of  property  in  a  particular  manner  changes  from  time  to  time  and 
restrictive  covenants  of  great  value  at  one  time  may  become  a  source  of  serious 
embarrassment  at  a  later  date.  The  fact  that  restrictive  covenants  cannot  ordi- 
narily be  draWn  to  bend  to  changed  conditions  has  made  many  purchasers  dis- 
inclined to  accept  conveyances  with  such  covenants.  A  restrictive  covenant  in  a 
deed  may  be  of  sufficient  importance  to  justify  a  refusal  by  a  contractee  to  accept  a 
conveyance  subject  to  such  conditions.  A  person  in  selling  property  may  be  quite 
willing  to  execute  and  deliver  a  deed  thereof  without  putting  re^rictive  covenants 
therein  and  in  reliance  upon  the  good  faith  of  express,  unqualified  assurances  of 
the  present  intention  of  tne  prospective  purchaser.  In  such  case  the  intention  is 
material  and  the  statement  of  such  intention  is  the  statement  of  an  existing  fact. 

Unless  the  court  affirms  this  judgment,  it  must  acknowledge  that  although  a 
defendant  deliberately  and  intentionaUy,  by  false  statements,  obtained  from  a 
plaintiff  his  property  to  his  great  damage  it  is  wholly  incapable  of  righting  the 
wrong,  notwithstanding  the  fact  that  by  so  doin^  it  does  in  no  way  interfere  with 
the  rules  that  have  grown  up  after  years  of  expenence  to  protect  written  contracts 
from  collateral  promises  and  conditions  not  inserted  in  tne  contract. 

We  are  of  the  opinion  that  the  false  statements  made  by  the  defendant  of  his 
intention  should,  under  the  circumstances  of  this  case,  be  deemed  to  be  a  state- 
ment of  a  material,  existing  fact  of  which  the  court  will  lay  hold  for  the  purpose  of 
defeating  the  wrong  that  would  otherwise  be  consummated  thereby." 


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544  SWIFT  V.  ROUNDS  [CHAP.  IV. 

deed,  that  a  party  must  not  make  any  misrepresentation,  express  or 
implied,  and  as  at  present  advised  I  think  Shackleton  when  he  went 
for  the  goods  must  be  taken  to  have  made  an  implied  representation 
that  he  intended  to  pay  for  them,  and  if  it  were  clearly  made  out  that 
at  that  time  he  did  not  intend  to  pay  for  theto,  I  should  consider  that 
a  case  of  fraudulent  misrepresentation  was  shown."  See  also  Lobdell 
V.  Baker,  1  Met.  201;  1  Benjamin  on  Sales,  ed.  of  1888,  §  524. 

In  the  case  at  bar,  the  declaration  alleges  that  the  defendant  bought 
the  goods  in  question  upon  credit,  fraudulently  intending  not  to  pay 
for  them  but  to  cheat  the  plaintiffs  out  of  the  value  thereof.  By  the 
act  of  buying  the  goods  of  the  plaintiffs  the  defendant  impliedly 
promised  to  pay  for  the  same,  which  promise  was  equally  as  strong 
and  binding  as  though  it  had  been  made  in  words,  or  even  in  writing. 
The  plaintiffs  had  the  right  to  rely  on  this  promise,  and  to  presume 
that  it  was  made  in  good  faith.  It  turns  out,  however,  according  to 
the  allegations  aforesaid,  that  it  was  not  made  in  good  faith,  but,  on  the 
contrary,  was  made  for  the  purpose  of  deceiving  the  plaintiffs  into 
the  act  of  parting  with  their  goods,  the  defendant  intending  by  the 
transaction  to  cheat  them  out  of  the  value  thereof.  The  fraud,  then, 
consisted  in  the  making  of  the  promise,  in  the  manner  aforesaid,  with 
intent  not  to  perform  it.  By  the  act  of  purchasing  the  goods  on  credit, 
the  defendant  impliedly  represented  that  he  intended  to  pay  for  them. 
The  plaintiffs  relied  on  this  representation,  which  was  material  and 
fraudulent,  and  were  damaged  thereby.  All  the  necessary  elements 
of  fraud  or  deceit  therefore  were  present  in  the  transaction.  See  Upton 
V.  Vail,  6  Johns.  181;  Bartholomew  v.  Bentley,  15  Ohio,  666;  Bidiop, 
Non-Contract  Law,  §§  314-318;  Burrill  v.  Stevens,  73  Me.  400;  Bar- 
ney V.  Dewey,  13  Johns.  226;  Hubbel  v.  Meigs,  50  N.  Y.  491.  The 
general  doctrine  which  controls  this  action  is  fully  reviewed  by  Mr. 
Wallace  in  a  note  to  Pasley  v.  Freeman,  2  Smith's  Lead.  Cas.  101.  As 
said  by  Bigelow  on  Fraud,  page  484,  "  to  profess  an  intent  to  do  or  not 
to  do  when  a  party  intends  the  contrary,  is  as  clear  a  case  of  misrepre- 
sentation and  of  fraud  as  could  be  made."  See  also  p.  466  as  to  what 
constitutes  a  representation.  In  Goodwin  v.  Home,  60  N.  H.  486,  the 
court  say:  "  Ordinarily  false  promises  are  not  fraudulent,  nor  evi- 
dence of  fraud,  and  only  false  representations  of  past  or  existing  facts 
are  actionable  or  can  be  made  the  ground  of  defence.  .  .  .  But  when 
a  promise  is  made  with  no  intention  of  performance,  and  for  the  very 
purpx)se  of  accomplishing  a  fraud,  it  is  a  most  apt  and  effectual  means 
to  that  end,  and  the  victim  has  a  remedy  by  action  or  defence.  Such 
are  cases  of  concealed  insolvency  and  purchases  of  goods  with  no  in- 
tention to  pay  for  them."  In  Byrd  v.  Hall,  1  Abb.  A.  D.  286,  it  was 
held  that,  although  a  purchase  of  goods  on  credit  by  one  who  knows 
himself  to  be  insolvent  is  not  fraudulent,  yet  where  it  is  made  with  a 
preconceived  design  not  to  pay,  it  is  fraudulent.  See  also  Milliken  r. 
Miller,  12  R.  I.  296;  Thompson  v.  Rose,  16  Conn.  81;  Hennequin  v. 


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CHAP.  rV.]  SWIFT  V.  ROUNDS  545 

Naylor,  24  N.  Y.  129;  Devoe  v.  Brandt,  63  N.  Y.  465;  Story  on  Sales, 
2d  ed.  §  176,  and  cases  in  note  2;  Douthitt  v,  Applegate,  33  Kans.  395; 
Morrill  V.  Blackman,  42  Conn.  324;  Skinner  v.  Flint,  105  Mass.  528; 
Earl  of  Bristol  v.  Wilsmore,  2  pow.  &  Ry.  760;  Lobdellt;.  Baker,  1 
Met.  193;  Cooley  on  Torts,  2d  ed.  559;  Load  v.  Green,  15  M.  &  W. 
215.  In  short,  the  making  of  one  state  of  things  to  appear,  to  those 
with  whom  you  deal,  to  be  the  true  state  of  things,  while  you  are  acting 
on  the  knowledge  of  a  different  state  of  things  —  among  the  oldest 
definitions  of  fraud  in  contracts  —  is  exemplified  in  this  case.  See 
Lee  V,  Jones,  17  C.  B.  n.  s.  494.  The  defendant  made  it  to  appear, 
by  the  act  of  buying  on  credit,  that  he  intended  to  pay  for  the  goods 
in  question,  while  in  fact  he  intended  to  cheat  the  plaintiflFs  out  of 
them.  And  to  hold  that  such  a  transaction  does  not  amount  to  fraud, 
would  be  to  make  it  easy  for  cheats  and  swindlers  to  escape  the  just 
consequence  of  their  imrighteous  acts. 

We  have  hesitated  somewhat  in  arriving  at  the  conclusion  that  an 
action  of  deceit  will  he,  upon  the  facts  set  out  in  the  declaration,  for 
the  reason  that,  amongst  the  numerous  cases  of  fraud  and  deceit  to 
be  found  in  the  books,  we  have  not  been  referred  to  any,  nor  have  we 
been  able  to  find  any,  where  the  action  of  deceit  was  based  sunply  on 
the  act  of  bujring  goods  on  credit,  intending  not  to  pay  for  them.  In 
Lyons  v.  Briggs,  14  R.  I.  224,  which  was  an  action  of  deceit,  Durfee, 
C.  J.,  intimates,  however,  that  deceit  would  he  in  a  case  like  the  one 
before  us,  by  the  use  of  the  following  language:  "  It  is  not  alleged 
that  the  buyer  did  not  intend  to  pay  when  he  bought,  but  only  that 
he  falsely  and  fraudulently  asserted  that  he  could  be  safely  trusted." 
But  the  authorities  are  overwhelming  to  the  effect  that  it  is  fraud  to 
purchase  goods  intending  not  to  pay  for  them,  and  that  the  vendor, 
upon  discovering  the  fraud,  may  repudiate  the  sale  and  reclaim  the 
property,  or  may  sue  in  trover,  or  in  some  other  action  of  tort,  for  the 
damages  sustained  by  the  fraud.  And  this  being  so;  we  fail  to  see 
why  an  action  of  deceit,  which  is  an  action  of  tort,  based  on  fraud, 
may  not  lie  as  well.  For  to  obtain  goods  on  credit,  intending  not  to 
pay  for  them,  is  as  much  a  trick  or  device  as  it  would  be  falsely  to 
represent  in  words  any  material  fact  whereby  the  vendor  should  be 
induced  to  part  therewith. 

But  defendant's  counsel  contends  that  the  alleged  representation 
was  not  as  to  any  fact  present  or  past,  but  merely  as  to  what  the 
defendant  would  do  in  the  future  with  reference  to  paying  for  the 
goods,  and  that  to  say  what  one  intends  to  do  is  identical  to  saying 
what  one  will  do  in  the  future,  which  amounts  simply  to  a  promise; 
and,  furthermore,  that  a  representation  of  what  will  happen  in  the 
future,  even  if  not  realized,  is  not  such  a  representation  as  will  sup- 
port this  action.  We  do  not  assent  to  this  method  of  reasoning.  The 
state  of  a  man's  mind  at  a  given  time  is  as  much  a  fact  as  is  the  state 
of  his  digestion.    Intention  is  a  fact;  Clift  v.  White,  12  N.  Y.  538; 


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546  SWIFT  V.  ROUNDS  [CHAP.  IV. 

hence  a  witness  may  be  asked  with  what  intent  he  did  a  given  act. 
Seymour  v.  Wilson,  14  N.  Y.  567.  A  man  who  buys  and  obtains  pos- 
session of  goods  on  credit,  intending  not  to  pay  for  them,  is  then  and 
there  guilty  of  fraud.  The  wrong  is  fully  completed  and  no  longer 
exists  in  intention  merely,  and  a  cause  of  action  instantly  accrues 
thereon  in  favor  of  the  vendor  to  recover  for  the  wrong  and  injury 
sustained.  It  is  true  the  purchaser  may  afterwards  repent  of  the 
wrong  and  pay  for  the  goods,  and  the  vendor  may  never  know  of  the 
wrongful  intent.  But  this  does  not  alter  the  case  at  all  as  to  the  orig- 
inal wrong  and  the  liabiUty  incurred  thereby.  Of  course  a  mere  in- 
tention to  conunit  a  crime  or  to  do  a  wrong  is  no  offence.  But  when 
the  intention  is  coupled  with  the  doing  or  accomplishment  of  the  act 
intended,  that  moment  the  wrong  is  perpetrated  and  the  correspond- 
ing liability  incmred.  See  Osw^o  Starch  Factory  v.  Lendrum,  57 
Iowa,  573. 

In  Stewart  v.  Emerson,  52  N.  H.  301,  where  it  was  alleged,  in  reply 
to  the  defendant's  plea  of  discharge  in  bankruptcy,  that  the  debt  in 
question  was  created  by  the  fraud  of  the  defendant.  Doe,  J.,  in  the 
course  of  a  long  and  vigorous  opinion,  used  the  following  language, 
which  is  so  apt  and  pertinent  that  we  quote  it.  He  said :  "  When  the 
intent  not  to  pay  is  concealed,  the  intent  to  defraud  is  acted  out.  The 
mere  omission  of  A.  to  disclose  his  insolvency  might  not  be  satisfac- 
tory proof  of  a  fraudulent  intent  in  all  cases.  He  might  expect  to 
become  solvent.  He  might  intend  to  pay  all  his  creditors.  He  might 
intend  to  pay  B.  though  unable  to  pay  others.  His  fixed  purpose 
never  to  pay  B.  is  a  very  different  thing  from  his  present  inabiUty  to 
pay  all  or  any  of  his  creditors.  A  man  may  buy  goods,  with  time  for 
trying  to  pay  for  them,  on  the  strength  of  his  known  or  inferred  dis- 
position to  pay  his  debts,  his  habits,  character,  business  capacity,  and 
financial  prospects,  without  his  present  solvency  being  thou^t  of, 
and  even  when  his  present  insolvency  is  known  to  the  vendor.  But 
who  could  obtain  goods  on  credit,  with  an  unconcealed  determination 
that  they  should  never  be  paid  for  ?  The  concealment  of  such  a  deter- 
mination is  conduct  which  reasonably  involves  a  false  representation 
of  an  existing  fact,  is  not  less  material  than  a  misrepresentation  of 
ability  to  pay  (Bradley  v.  Obear,  10  N.  H.  477),  and  is  an  actual 
artifice,  intended  and  fitted  to  deceive." 

"An  application  for  or  acceptance  of  credit,  by  a  purchaser,  is  a 
representation  of  the  existence  of  an  intent  to  pay  at  a  future  time, 
and  a  representation  of  the  non-existence  of  an  intent  not  to  pay. 
What  principle  of  law  requires  a  false  and  fraudulent  representation 
to  be  express,  or  forbids  it  to  be  fairly  inferred  from  the  act  of  pur- 
chase ?  A  representation  of  a  material  fact,  impUed  from  the  act  of 
purchase,  and  inducing  the  owner  of  goods  to  sell  them,  is  as  effective 
for  the  vendee's  piupose  as  if  it  had  been  previously  and  expressly 
made.   If  it  is  false,  and  known  to  the  pretended  purchaser  to  be  false, 


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CIIAP.  IV.]  SWIFT  V.  ROUNDS  547 

and  is  intended  and  used  by  him  as  a  means  of  converting  another's 
goods  to  his  own  use  without  compensation,  under  the  false  pretence 
of  a  purchase,  why  does  it  not  render  such  a  purchase  fraudulent  ? 
When  the  intent  is  to  pay,  it  is  necessarily  understood  by  both  parties, 
and  need  not  be  expressly  represented  as  existing.  When  the  intent 
is  not  to  pay,  it  is  of  course  concealed.  Whether  the  deceit  is  called  a 
false  and  fraudulent  representation  of  the  existence  of  an  intent  to  pay, 
or  a  fraudulent  concealment  of  the  existence  of  an  intent  not  to  pay, 
the  fraud  described  is,  in  fact,  one  and  the  same  fraud." 

Demurrer  overruled,  and  case  remitted  to  the  Common  Pleas  Divi- 
sion for  further  proceedings.^ 

^  Butler  V,  Watkins,  13  Wall.  456;  Rogers  v.  Virginia-Carolina  Chemical  Co., 
(C.  C.  A.)  149  Fed.  1;  Sallies  v.  Johnson,  85  Conn.  77;  McLaughUn  ».  Thomas, 
86  Conn.  252:  Olson  v.  Smith,  116  Minn.  430;  Hemdon  v.  Durham  R.  Co.,  161 
N.  C.  650;  Blackburn  v.  Morrison,  29  Okl.  510  Accord. 

Grubb  V.  Milan,  249  111.  456;  Murray  &.  Smith.  42  HI.  App.  548;  Chambers  v. 
Mitchell,  123  HI.  App.  595:  Younger  v,  Hoge,  211  Mo.  444  Con^a, 

In  Commonwealtn  v,  Althause,  207  Mass.  32,  47-49,  Loring,  J.,  sa^:  '^  As  a 

gBneral  proposition  of  law  apart  from  statutes  making  it  a  crime  to  obtam  property 
y  a  false  pretence,  it  would  seem  that  a  man's  present  intention  as  to  a  future 
act  is  a  fact.  Edgington  v.  Fitzmaurice,  29  Ch.  D.  459.  Swift  t;.  Rounds,  19  R.  I. 
527.  In  the  first  of  these  two  cases  (Ed^gton  v.  Fitzmaurice)  Bowen,  L.  J.,  said, 
at  p.  483 :  *  The  state  of  a  man's  mind  is  as  much  a  fact  as  the  state  of  his  diges- 
tion.' And  Chapman,  C.  J.,  in  Commonwealth  v.  Walker,  108  Mass.  309,  312, 
said:  '  A  man's  mtention  is  a  matter  of  fact,  and  may  be  proved  as  such.  .  .  .' 

But  in  the  case  at  bar  the  presiding  judge  went  beyond  any  decided  case*in  the 
explanation  which  he  gave  of  the  difference  between  the  representation  of  a  per- 
son's present  intention  as  to  a  future  act  and  an  assurance  or  promise  that  the 
future  act  shall  be  done.  For  the  purpose  of  illustrating  the  essential  difference 
between  the  two  he  put  as  an  example  of  obtaining  property  by  a  false  pretence  a 
case  which  is  not  obtaining  property  by  a  false  pretence.  In  effect  he  told  the  iury 
that  if  A  buys  property  intendling  not  to  pay  for  it  he  obtains  that  property  by  a 
false  pretence.  In  that  case  A  makes  no  representation  at  all.  All  that  he  does  is 
to  make  a  promise,  and  a  promise  is  not  a  representation  of  a  fact.  It  has  been 
sousht  to  make  out  that  in  legal  contemplation  a  promise  with  an  intention  not  to 
pern)rm  is  a  false  pretence  because  a  promise  to  do  a  thing  of  necessity  impUes  a 
present  intention  to  do  it,  and  therefore  whenever  you  have  a  promise  coupl^  with 
an  intent  not  to  perform  you  have  an  impUed  false  representation  of  an  mtention 
to  do  the  act  which  the  defendant  promised  to  do  and  so  a  false  pretence.  And 
this  finds  some  apparent  support  in  Swift  v.  Rounds,  19  R.  I.  527.  In  that  case  it 
was  held  that  where  a  defendant  buys  property  intending  not  to  pay  for  it  he  is 
habie  in  an  action  of  deceit  because  he  imphedly  represents  that  he  intends  to  pay* 
for  it  by  the  act  of  buying.  It  may  be  doubted  whether  the  making  of  a  promise 
impUes  of  necessity  in  all  cases  a  present  intention  to  perform  that  promise.  Upon 
that  question  we  do  not  find  it  necessary  to  express  an  opinion.  For  however  tnat 
may  be,  the  fraud  of  obtaining  property  by  buying  it  intending  not  to  pay  for  it  is 
not,  as  matter  of  construction  of  the  statute  creating  it,  the  crime  of  obtaining 
property  by  a  false  pretence.  ...  It  is  evident  that  the  fraud  (which  by  enacting 
that  statute  the  Legislature  intended  to  make  a  crime)  was  obtaining  the  property 
of  another  by  a  false  statement  of  a  fact;  and  it  is  eoually  evident  that  in  enacting 
it  the  Legislature  did  not  have  in  mind  the  fraud  of  buying  goods  not  intending  to 
pay  for  tnem.  Both  are  frauds  but  they  are  not  the  same  fraud.  In  our  opinion  it 
was  the  former  alone  which  the  Legislature  had  in  mind  in  making  it  a  crime  to 
obtain  property  by  a  false  pretence." 

As  to  wnether  irUerUion  at  the  time  of  the  corUrad  or  at  the  time  of  delivery  of 
the  goods  is  to  be  regarded,  see  In  re  Levi,  148  Fed.  654;  Whitten  v,  Fitzwater, 
129  N.  Y.  626. 


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548  BURRILL  V.  STEVENS  [CHAP.  IV, 

Peters,  J.,  m  BURRILL  v.  STEVENS 
(1882)  73  Maine,  395,  398-400. 

The  instructions  to  the  jury  upon  that  point  present  the  question,  whether 
getting  property  by  a  purchase  upon  credit,  with  an  intention  of  the  purchaser 
never  to  pay  for  the  same,  constitutes  such  a  fraud  as  will  entitle  the  seller 
to  avoid  the  sale,  although  there  are  no  fraudulent  misrepresentations  or 
false  pretences. 

The  question  has  never  been  fairly  before  this  Court  before  this  time,  so  as 
to  require  a  deliberate  decision.  The  plaintiff  contends  that  the  question  was 
settled  in  the  negative  in  the  case  of  Long  v.  Woodman,  58  Maine,  49.  But 
that  case  falls  short  of  meeting  the  question  presented  in  the  present  case. 
The  gist  of  the  charge  against  the  purchaser  in  that  case  seems  to  have  been 
that  he  fraudulently  refused  to  do  after  the  contract  what  he  agreed  to  do  at 
the  time  of  the  contract,  the  alleged  fraud  being  an  intention  formed  after  the 
contract  rather  than  contemporaneously  with  it;  and  that  was  an  action  of 
deceit  based  upon  a  broken  promise  to  convey  real  estate.  Of  late  years,  nisi 
"prius  rulings  in  our  own  Courts  have  frequently  been  in  accordance  with  the 
law  as  delivered  to  the  jury  by  the  presiding  judge  in  the  case  at  bar,  and  we 
think  the  doctrine  may  safely  be  accepted  and  approved,  both  upon  authority 
and  principle. 

It  is  the  admitted  doctrine  of  the  English  cases,  and  is  sustained  by  most 
of  the  courts  in  the  United  States.  In  Benj.  on  Sales  (2d  Amer.  ed.),  §  440, 
note  e,  very  numerous  cases  are  cited  to  the  proposition.  Stewart  v.  Emerson, 
52  N.  H.  301,  discusses  the  question  at  length,  and  reviews  many  authorities. 

The  plaintiff  relies  upon  the  objection  that  it  is  not  an  indictable  fraud, 
an  argument  which  seems  to  have  inclined  the  Pennsylvania  (Dourt  against 
admitting  the  principle  into  the  jurisprudence  of  that  State.  Smith  v.  Smith, 
21  Pa.  St.  367;  Backentoss  v.  Speicher,  31  Pa.  St.  324.  It  has  been  held  by 
some  Courts  to  be  an  indictable  cheat,  the  false  pretence  being  in  the  vendee's 
pretendingly  making  a  purchase,  while  his  only  purpose  is  to  cheat  the  vendor 
out  of  his  goods.  It  is  more  often  considered,  however,  as  not  a  matter  for 
indictment.  Bish.  Crim.  Law,  §  419.  But  the  objection  taken  by  the  plaintiff 
has  generally  been  considered  as  insufficient  to  override  the  rule. 

But  the  doctrine  governing  the  case  before  us  should  not  be  misunderstood. 
To  constitute  the  fraud,  there  must  be  a  preconceived  design  never  to  pay  for 
the  goods.  A  mere  intent  not  to  pay  for  the  goods  when  the  debt  becomes  due, 
is  not  enough;  that  falls  short  of  the  idea.  A  design  not  to  pay  according  to 
the  contract  is  not  equivalent  to  an  intention  never  to  pay  for  the  goods,  and 
does  not  amount  to  an  intention  to  defraud  the  seller  outright,  although  it 
may  be  evidence  of  such  a  contemplated  fraud. 

Nor  is  it  enough  to  constitute  the  fraud  that  the  buyer  is  insolvent,  and 
knows  himself  to  be  so,  at  the  time  of  the  purchase,  and  conceals  the  fact 
from  the  seller,  and  has  not  reasonable  expectations  that  he  can  ever  pay  the 
debt.^  Some  (Courts  have  gone  so  far  as  to  denominate  that  a  fraud  which  will 
avoid  the  sale.  And  it  may  have  been  so  held  in  bankruptcy  dJourts,  in  some 
instances,  as  between  a  vendor  and  the  assignee  of  the  vendee.    But  it  would 

^  See  Gardner  v.  State,  4  Ala.  App.  131;  Syracuse  Knitting  Co,  v.  Blanchard, 
69  N.  H.  447. 


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CHAP.  IV.]      BUGG  V.  WERTHEIMBR-SCHWARTZ  SHOE  CO.  549 

not,  generaUy,  be  enough  to  prove  the  fraud.  The  inquiry  is  not  whether  the 
vendee  had  reasonable  grounds  to  believe  he  could  pay  the  debt  at  some  time 
and  in  some  way,  but  whether  he  intended  in  point  of  fact  not  to  pay  it. 

Nor  is  it  enough  that  after  the  purchase  the  vendee  conceives  a  design  and 
forms  a  purpose  not  to  pay  for  the  goods,  and  successfully  avoids  paying  for 
them.  The  only  intent  that  renders  the  sale  fraudulent  is  a  positive  and  pre- 
determined intention,  entertained  and  acted  upon  at  the  time  of  going  through 
the  forms  of  an  apparent  sale,  never  to  pay  for  the  goods.  Cross  v.  Peters,  1 
Greenl.  378;  Biggs  v.  Barry,  2  Curtis,  (C.  C.  R.)  259;  Parker  v.  Byrnes,  1 
Low.  539;  Rowley  v.  Bigelow,  12  Pick.  306. 


Rtodick,  J.,  IN  BUGG  V.  WERTHEIMER-SCtfWARTZ 

SHOE  COMPANY 

(1897)  64  Arkansas,  12,  17,  18. 

Nor  can  we  sustain  the  contention  of  appellant  that  to  entitle  the  ven- 
dor to  avoid  a  sale  after  delivery  it  must  in  all  cases  be  shown  that  the  vendee 
did  not  intend  to  pay  for  the  goods.  That  is,  as  above  stated,  one  groimd  on 
which  the  sale  may  be  avoided,  but  not  the  only  one.  If  the  vendee  know- 
ingly makes  false  representations  concerning  material  facts,  and  thus  induces 
the  seller  to  part  with  his  goods,  the  seller  may  elect  to  avoid  the  sale,  and  this 
without  regard  to  whether  the  buyer  intended  to  pay  for  the  goods  or  not. 
The  fraud  in  such  a  case  consists  in  inducing  the  vendor  to  part  with  his  goods 
by  false  statements  of  the  buyer,  known  to  be  false  when  made,  or  made  by 
him  when  he  has  no  reasonable  ground  to  believe  that  they  are  true.  If  a 
vendor  parts  with  his  goods  on  the  faith  of  such  false  statements  made  by  the 
buyer,  it  would  be  strange  if  the  law  permitted  the  buyer  to  reap  the  fruits  of 
such  conduct,  and  retain  the  goods  against  the  will  of  the  vendor.  To  iUus- 
trate,  let  us  suppose  a  case.  A  man  with  no  property,  but  with  great  faith  in 
his  ability  as  a  merchant,  goes  to  a  city  and  calls  on  a  wholesale  merchant  for 
the  purpose  of  buying  a  stock  of  goods.  He  believes  that  if  he  can  obtain  a 
stock  of  goods,  his  experience  and  ability  will  soon  enable  him  to  pay  off  the 
purchase  price,  but,  fearing  that  the  merchant  may  refuse  to  sell  tf  he  learns 
that  he  has  no  property,  he  thereupon,  for  the  purpose  of  obtaining  the  goods, 
states  to  the  merchant  that  he  has  money  in  the  bank,  and  owns  a  large 
amount  of  both  real  and  personal  property.  The  merchant,  ignorant  of  the 
facts,  and  relying  on  the  truth  of  these  statements,  parts  witii  his  goods.  He 
afterwards  discovers  the  fraud,  and  brings  an  action  to  recover  the  goods. 
In  such  a  case  would  it  be  a  valid  defence  for  the  buyer  to  say  that,  although 
he  had  secured  the  goods  by  misrepresentation,  yet  he  did  honestly  intend  to 
pay  for  them  ?  Clearly  it  would  not.  The  courts  would  answer  such  a  ques- 
tion substantially  as  it  was  answered  by  the  Supreme  Court  of  Connecticut 
when  it  said  that  the  intent  of  the  buyer  to  pay  "  may  have  lessened  the 
moral  turpitude  of  his  act,  but  it  will  not  suf&ce  to  antidote  and  neutralize 
an  intentionally  false  statement  which  had  accomplished  its  object  of  benefit- 
ing himself  and  of  misleading  the  plaintiffs  to  their  injury."  Judd  r.  Weber, 
55  Conn.  267;  Reid  v,  Cowduroy,  79  Iowa,  169;  s.  c.  18  Am.  St.  Rep.  359, 
and  note;  Strayhom  v.  Giles,  22  Ark.  517. 


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550  MCCOMB  V.  BREWER  LUMBER  CO.  [CHAP.  IV. 

McCOMB  V.  BREWER  LUMBER  COMPANY 

Supreme  Judicial  Court,  Massachusetts,  October  21,  1903. 

Reported  in  184  MauachuaeUa  ReporU,  276. 

The  third  count  in  the  declaration  is  tort  for  deceit  in  the  sale  of 
certain  stock  by  the  defendant  to  the  plaintiff. 

The  allegations,  so  far  as  material  here^  are  in  substance  as  fol- 
lows:— 

Plaintiff  sa3rs  that  the  defendant,  by  its  agent,  with  intent  to  de- 
ceive and  defraud  the  plaintiff,  falsely  and  fraudulently  represented 
to  him  [here  specifying  certain  representations],  and  that,  if  the  plain- 
tiff  would  purchase  a  certain  number  of  shares  of  stock  in  the  defend- 
ant corporation  and  pay  therefor  the  sum  of  $9000,  .  .  .  the  $9000 
paid  by  the  plaintiff  diould  be  put  in  the  treasury  of  said  corporation 
to  be  used  as  a  working  capital.  And  plaintiff  says  that,  rel3dng  upon 
the  representations,  he  bought  the  shares  and  paid  therefor  $9000; 
and  plaintiff  sa3rs  that  said  representations  were  false  and  untrue  to 
the  knowledge  of  the  defendant  in  this:  [specifying  certain  particu- 
lars], and  the  $9000  paid  by  plaintiff  was  not  put  in  its  treasury  and 
used  as  working  capital,  but  was,  with  the  approval  of  the  defendant, 
its  directors  and  manager,  used  for  other  purposes  than  the  business 
of  the  defendant. 

Verdict  for  plaintiff  for  $1 .00  damages.  Plaintiff  allied  exceptions 
as  to  the  ruling  at  the  trial  in  reference  to  this  count.^ 

Hammond,  J.  .  .  .  The  exceptions  relate  only  to  the  third  count, 
and  since  the  verdict  was  for  the  plaintiff  on  this,  they  are  material 
only  so  far  as  they  respect  the  question  of  damages.  The  principal 
difference  between  the  instructions  given  by  the  judge  and  those 
requested  by  the  plaintiff  is  that  the  judge  declined  to  permit  the  jury 
to  consider  the  allegation  with  reference  to  the  promised  use  of  the 
$9000  paid  by  the  plaintiff  for  the  stock.  As  to  this  it  is  contended 
by  the  plaintiff  that  at  the  time  the  defendant  promised  ^  use  the 
money  as  working  capital  it  ^idliot  intend  to  keep/tHe .promise,  and 
that"~a;Tepresentation  of  a  present  Intention  is  a  representation  of  an 
existing  fact  and  therefore  may  be  false  and  fraudulent.  But,  with- 
outTmplying  that  the  plaintiff's  contention  would  be  true  under  any 
circumstances,  the  diflSculty  with  his  case  is  that_th§  question  is  not 
raised  upon  the  record.  The  ruling  that  the  jury  should  not  cohsiSer 
the  allegation  with  reference  to  the  promised  use  of  the  money  ap- 
pears to  have  been  made  with  reference  to  the  third  county  and,  as 
applied  to  that,  it  was  correct.  An  examination  of  the  count  will 
show  that  it  does  not  contain  any  allegation  that  at  the  time  the  de- 
fendant ss-id  that  tha  money  should  l>e  used  for  working  capital  it 
had  not  the  intention  to  perform  that  promise.  It  first  sets  out  the 
representations  which  induced  the  plaintiff  to  purchase  the  stock, 

*  Statement  abridged.     Part  of  opinion  omitted. 


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CHAP.  IV.]  DORR  V.  CORY  551 

then  proceeds  to  state  in  what  respects  they  were  false  and  fraudulent 
and  the  defendant's  knowledge  of  the  falsity,  and  then  follows  the 
only  allegation  respecting  the  representation  as  to  the  promised  use 
of  the  money:  "  And  the  nine  thousand  dollars  paid  by  the  plaintiff 
to  the  defendant  was  not  put  in  its  treasury  and  used  as  working 
capital,  but  was,  with  the  approval  of  the  defendant,  its  directors  and 
manager,  used  for  other  purposes  than  the  business  of  the  defendant." 
This  is^  allegation  that  the  defendant  faUed  to  x^hiiy  out  ita  promise, 
and  falls  far  short  of  an  aUegation  that  the  detendant  at  tne  time  U  was, 
niad^  did  not  llltt*lid  to  cany  it  out,  inere  is  no  allegation  whatever 
as  to' tHe  intent  Q£ihaidefeS35iit.at  the  tme  the  promise' was  made 
Tn3ee3  it  is  diiBBcult  to  read  that  count,  eitherTy  itself  or  m  coimec-* 
tion  with  the  other  counts,  without  feeling  that  the  pl^adef'  studiously 
avoided  alleging  anything  as  to  that  intent.  While  the  evidence  as 
to  the  promised  use  and  the  actual  use  of  this  money  may  have  been 
admissible  upon  the  second  count,  the  object  of  which  was  to  recover 
damages  for  breach  of  the  promise,  it  was  not  material  upon  the  third 
count,  even  upon  the  question  of  damages,  for  the  reasons  above 
stated. 

Exceptuma  overruled.^ 

DORR  V.  CORY 

Supreme  Court,  Iowa,  April  5,  1899. 
Reported  in  108  lotoa  Reports,  725. 

Appeal  from  Polk  District  Court. 

Action  at  law  on  contracts  in  writing  for  the  purchase  of  interests 
in  real  estate.  Answer  alleges  (inter  aiia)  that  the  contracts  were 
obtained  by  fraud. 

Verdict  for  plaintiff,  and  judgment. 

Robinson,  C.  J.^  .  .  .  The  only  statement  purporting  to  be  of  fact 
which  is  shown  to  have  been  false  is  that  relating  to  the  cost  of  the 
land.  Would  that  statement  have  authorized  the  jury  to  find  for  the 
defendant  ?  It  was  said  in  Hemmer  v.  Cooper,  8  Allen,  334,  that 
"  the  representations  of  a  vendor  of  real  estate,  to  the  vendee,  as  to 
the  price  he  paid  for  itj  are  to  be  regarded  in  the  same  light  as  repre- 
sentations respecting  its  value.  A  purchaser  ought  not  to  rely  upon 
them;  for  it  is  settled  that  even  when  they  are  false,  and  uttered  with" 
a  view  to  deceive,  they  furnish  no  ground  of  action.*'  That  rule  was 
followed  in  Cooper  v.  Lovering,  106  Mass.  77,  and  it  is  the  rule  of 

'  As  to  "  promissory  representations,"  see  also  Sawyer  v.  Prickett,  19  Wall.  146; 
Sallies  v,  Johnson,  85  Conn.  77;  Carter  v,  Orae,  112  Me.  365;  Pedrick  v.  Porter, 
5  All.  324;  Pile  v.  Bright,  156  Mo.  App.  301. 

Known  impossible  prophecy  by  one  having  superior  knowUdqe,  see  Murray  v. 
Tolman,  162  111.  417;  French  v.  Ryan,  104  Mich.  625;  Hedin  v.  Minneapolis  Insti- 
tute, 62  Minn.  146. 

'  Only  part  of  the  case  is  given. 


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552  DORR  V.  CORY  [CHAP.  IV. 

Tuck  V.  Downing,  76  111.  71,  and  Banta  v.  Palmer,  47  III.  99.  In  Hol- 
brook  V.  Connor,  60  Me.  578,  it  was  said:  "  The  statement  of  the 
vendor  that  he  paid  a  certain^rice  for  the  land,  if  true^  can  be  no  more 
than  an  indication  of  his  opinion  of  its  value;  and^hen  we  consider 
the  vanous  motive  which  may,  and  often  do,  actuate.meTnn  majclhg 
riieir  purchase?,  and  especially  whenTt  is  donefor  speculation^  it  is 
but  the  sltghtesl  proof  of  such  opinionT^  '  As  a  general  rule,  a  vendee 
iias  no  right  to  rely  upon  the  statonents  of  the  vendor  respectfbg  the 
value  of  the  property  sold,  but  must  act  upon  his  own  judgment,  or 
seek  information  for  himself.  But  to  that  rule  there  are  exceptlongr~It 
was  "said  in  Simar  v.  Canaday,  53  N.  Y.  306,  that  where  statements 
as  to  the  value  are  mere  matter  of  opinion  and  behef,  no  liability  is 
created  by  uttering  them,  but  that  such  statements  "  may  BeTimder 
certain  circumstances,  affirmations  of  fact.  When  known  to  the  ut- 
terer  to  be  untrue,  if  made  with  the  intention  oJ  misleading  the  ven- 
dee, if  he  does  rely  upon  them,  and  is  misled  to  his  injury,  they  avoid 
the  contract."  The  fraud  which  vitiates  a  contract  must  be  material, 
affecting  the  very  essence  of  the  contract;  J>ut  ordinarily,  "  if  the 
fraud  be  such  tfiat,  had  it  not  been  practiced,  the  contract  woulcTnbt 
have  been  made,  then  it  is  materialtoli,!^  ^  Parsons,  Contract,  770. 
See,  also,  2  Pomeroy  Equity  Jurisprudence,  section  878,  and  notes. 
That  rule  was  applied  in  Smith  v.  Countryman,  30  N.  Y.  656,  which 
was  an  action  upon  a  contract  for  the  sale  of  hops.  It  was  held  that 
a  false  representation  made  by  the  vendee  as  to  the  price  at  which  he 
had  purchased  hops  of  another  ^rson,  which  was  relied  upon  by  the 
veudof ,"  and  induced'Tirm  to  enter  Into  the  contract  of  sale,  was  mate- 
rial, and  constituted  a  defence  to  an  action  on  the  contract.  This  rule 
appears  to  us  to  be  in  harmony  with  reason  and  the  principles  of  jus- 
tice. The  price  at  which  property  actually  sells  in  the  open  market 
is  very  satisfactory  evidence  of  its  value  at  the  time  of  the  sale.  We 
cannot  assent  to  the  proposition  that  the  statement  of  a  vendor  that 
Ke  paid  a  specified  price  for  the  property  he  sells  is  a  mere  expression 
of  opinion,  upon  which  the  purchaser  has  no  right  to  rel^.  0^  the 
contrary,  we  think  it  is  a  statement  of  fact;  and  if  the  purchaser, 
without  knowing  or  having  reason  to  know  what  price  was  paid,  relies 
upon  the  false  statement,  to  Ws  Injury,  he  is  entitled  to  relief.  The 
cases  of  Teachout  v.  Van  Hoesen,  76  Iowa,  113;  Her  v.  Griswold,  83 
Iowa,  442,  and  Coles  v.  Kennedy,  81  Iowa,  360,  although  not  pre- 
cisely in  point,  tend  to  sustain  our  conclusion.  See  French  v.  Ryan, 
104  Mich.  625  (62  N.  W.  Rep.  1016);  Moon  v.  McKinstry,  107  Mich. 
668  (65  N.  W.  Rep.  546),  and  Woolen  Co.  v.  Smalley,  111  Mich.  321 
(69  N.  W.  Rep.  722). 

Judgment  reversed.^ 

*  But  see  Davis  r.  Reynolds,  107  Me.  61. 

In  Van  Epps  v,  Harrison,  5  Hill,  63, 70-71,  Bronson,  J.,  says:  '^  If  an  affirmation 
concerning  the  cost  of  the  property  was  of  any  consequence,  I  think  the  defendart 


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CHAP.  IV.]  DEMING  V.  DARLING  553 

DEMING  V.  DARLING 

Supreme  Judicial  Court,  Massachusetts,  February  27,  1889. 

Reported  in  148  MassachusetU  Reports^  504. 

Holmes,  J.  This  is  an  action  for  fraudulent  representations  alleged 
to  have  been  made  to  one  Dr.  Jordan,  the  plaintiff's  agent,  for  the  pur- 
pose of  inducing  the  plaintiff  to  purchase  a  railroad  bond  from  the 
defendant.  .  .  } 

Among  the  representations  relied  on,  one  was  that  the  railroad  mort- 
gaged, which  was  situated  in  Ohio,  was  good  security  for  the  bonds; 
and  another  was  that  the  bond  was  of  the  very  best  and  safest,  and  was 
an  A  No.  1  bond.  With  regard  to  these  and  the  Uke,  the  defendant 
asked  the  Court  to  instruct  the  jury  "  that  no  representations  which 
the  defendant  might  have  made  or  did  make  to  Dr.  Jordan  in  relation 
to  the  value  of  the  bond  in  question,  or  of  the  railroad,  its  terminals, 
and  other  property  which  were  mortgaged  to  secure  it,  with  other 
bonds,  even  though  false,  were  representations  upon  which  Dr.  Jordan 
ought  to  have  relied,  and  are  not  sufficient  to  furnish  any  grounds  for 
this  action;  "  and  also,  "  that  each  of  the  expressions  '  and  that  the 
same '  (meaning  said  railroad  and  all  the  property  covered  by  the 
mortgage)  '  was  good  security  for  said  bonds/  '  that  said  bond  was  of 
the  very  best  and  safest,  and  was  an  A  No.  1  bond,'  are  expressions  of 

should  have  taken  the  trouble  to  inquire  and  satisfy  himself.  But  I  cannot  think 
it  a  matter  of  any  legal  importance.  It  was  only  another  mode  of  asserting  that 
the  property  was  of  the  value  of  $32,000;  and  all  the  books  agree  that  no  action 
will  lie  if  such  an  affirmation  prove  false.  It  is  the  folly  of  the  purchaser  to  trust 
to  it.  Indeed,  the  representation  here  amounts  to  less  than  a  direct  afBrmation  of 
value,  for  it  only  asserts  that  the  plaintiff  and  another  man  agreed  that  such  was 
the  value.  It  would  lead  to  great  mischief  to  allow  men  to  annul  contracts  upon 
such  a  ground.  If  the  defendant  could  make  out  that  the  plaintiff  was  his  agent  in 
purchasing  from  Van  Rensselaer,  then  what  th6  plaintiffs  said  about  the  price  he 
paid  might  be  material;  but  not  in  any  other  point  of  view. 

Such  are  my  views  upon  this  branch  of  the  case;  but  mv  brethren  are  of  opinion 
that  the  false  affirmation  concerning  the  price  paid  for  the  land  furnishes  a  good 
ground  of  action.  There  must,  therefore,  be  a  new  trial  upon  this  point,  as  well  as 
the  one  relating  to  the  condition  of  the  land.'' 

As  to  "  jmffing,*'  see:  Mumford  v.  Tolman,  167  HI.  268:  Miller  v,  Craig,  36  HI. 
109;  Wightmanw»Tucker,50Ill.App.76;  Woods  W.Nicholas,  92  Kan.  268;  Buck- 
mgham  v,  Thompson,  135  S.  W.  652. 

But  see  Pratt  v.  Judge,  177  Mich.  668;  Adams  v.  Soule,  33  Vt.  638. 

Statements  as  to  value^  see:  Harvey  v.  Yoimg,  Yelverton,  21;  Lake  v.  Loan 
Assn..  72  Ala.  207;  Stevens  v.  Alabama  Land  Co.,  121  Ala.  450:  Kincaid  v.  Price, 
82  Ark.  20;  Williams  v.  McFadden,  23  Ha.  143;  Noetling  w.  Wright,  72  HI.  390; 
Cagney  v.  Cuson,  77  Ind.  494;  Bossingham  v.  Syck,  118  la.  192;  Else  v.  Freeman, 
72  Kan.  666;  Reynolds  v.  Evans,  123  Md.  365;  Picard  v.  McCormick,  11  Mich.  68; 
Doran  v.  Eaton,  40  Minn.  36;  Boasberg  v.  Walker,  111  Minn.  445;  Union  Bank  ». 
Hunt,  76  Mo.  439;  Dahymple  v.  Craig,  149  Mo.  345;  Dresher  v.  Becker,  88  Neb. 
619;  Sandford  v.  Handy,  23  Wend.  260;  Ellis  v,  Andrews,  56  N.  Y.  83:  Van 
Slochem  v,  Villard,  207  N.  Y.  587;  Mecum  v.  Becker,  166  App.  Div.  793;  Camp- 
beU  w.  Zion's  Real  Estate  Co.,  46  Utah,  1;  Shanks  v.  Whitney.  66  Vt.  405. 

Compare  Moon  v.  Benton,  13  Ala.  App.  473;  Pate  v.  Blades,  163  N.  C.  267; 
Crompton  v,  Beedle,  83  Vt.  287. 

^  Portions  of  the  opinion  are  omitted. 


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654  DEMING  V.  DARLING  [CHAP.  IV. 

opinion  of  value,  and  even  though  false,  are  not  such  representations 
as  Dr.  Jordan  had  a  right  to  rely  upon,  and  are  not  enough  to  furnish 
any  grounds  for  this  action." 

The  Court  declined  to  give  these  instructions,  and  instead  instructed 
the  jury  that  "  an  expression  of  opinion,  judgment,  or  estimate,  or  a 
statement  of  a  promissory  nature  relating  to  what  would  be  in  the 
future,  so  far  as  they  were  expressions  of  opinion,  if  made  in  good 
faith,  however  strong  as  expressions  of  beUef,  would  not  support  an 
action  of  deceit." 

It  will  be  seen  that  the  fundamental  difference  between  the  instruc- 
tions given  and  those  asked  is  that  the  former  require  good  faith.  The 
language  of  some  cases  certainly  seems  to  suggest  that  bad  faith  might 
make  a  seller  Uable  for  what  are  known  as  seller's  statements,  apart 
from  any  other  conduct  by  which  the  buyer  is  fraudulently  induced  to 
forbear  inquiries.  Pike  v.  Fay,  101  Mass.  134.  But  this  is  a  mis- 
take. It  \b  settled  that  the  law  does  not  exact  good  faith  from  a  seller 
in  those  vague  commendations  of  his  wares  which  manifestly  are  open 
to  difference  of  opinion,  which  do  not  imply  untrue  assertions  concern- 
ing matters  of  direct  observation  (Teague  v.  Irwin,  127  Mass.  217), 
and  as  to  which  it  always  has  been  "  understood,  the  world  over,  that 
such  statements  are  to  be  distrusted."  Brown  v.  Castles,  11  Cush. 
348,  360;  Gordon  v.  Parmelee,  2  Allen,  212;  Parker  v.  Moulton, 
114  Mass.  99;  Poland  v.  Brownell,  131  Mass.  138,  142;  Bums  v. 
Lane,  138  Mass.  350,  356.  Parker  v.  Moulton  also  shows  that  the 
rule  is  not  changed  by  the  mere  fact  that  the  property  is  at  a  distance, 
and  is  not  seen  by  the  buyer.  Moreover,  in  this  case,  market  prices  at 
least  were  easily  accessible  to  the  plaintiff. 

The  defendant  was  known  by  the  plaintiff's  agent  to  stand  in  the 
position  of  a  seller.  If  he  went  no  further  than  to  say  that  the  bond 
was  an  A  No.  1  bond,  which  we  understand  to  mean  simply  that  it  was 
a  first  rate  bond,  or  that  the  railroad  was  good  security  for  the  bonds, 
we  are  constrained  to  hold  that  he  is  not  liable  under  the  circumstances 
of  this  case,  even  if  he  made  the  statement  in  bad  faith.  See,  further, 
Veasey  v.  Doton,  3  Allen,  380;  Belcher  v.  Costello,  122  Mass.  189. 
The  rule  of  law  is  hardly  to  be  regretted,  when  it  is  considered  how 
easily  and  insensibly  words  of  hope  or  expectation  are  converted  by 
an  interested  memory  into  statements  of  quaUty  and  value  when  the 
expectation  has  been  disappointed. 

Exceptions  sristained.^ 

1  Gordon  v.  Butler,  105  U.  S.  553;  Kimber  v.  Young,  (C.  C.  A.)  137  Fed.  744; 
Pittsburgh  Life  &  Trust  Co.  v.  Northern  Ins.  Co.,  140  Fed.  888,  148  Fed.  674; 
Dotson  V.  Kirk,  (C.  C.  A.)  180  Fed.  14;  Rendell  v.  Scott,  70  Cal.  514;  Wrenn  v. 
Truitt,  116  Ga.  708;  Dowden  v.  Wilson,  108  111.  257;  Curry  v.  Keyser,  30  Ind. 
214;  Conant  v,  Nat'l  State  Bank.  121  Ind.  323;  Scroggin  v.  Wood,  87  la.  497; 
Vokcs  V.  Eaton,  119  Ky.  913:  Holbrook  v.  Connor,  60  Me.  578;  Bishop  v.  Small, 
63  Me.  12;  Donnelly  v.  Baltimore  Trust  Co.,  102  Md.  1;  Mooney  v.  Miller,  102 
Mass.  217;  Nash  v,  Minnesota  Title  &  Trust  Co.,  159  Mass.  437;  Lynch  v.  Murphy, 


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CHAP.  IV.]  ANDREWS  V.  JACKSON  555 

ANDREWS  V.  JACKSON 

Supreme  Judicial  Court,  Massachusetts,  Mat  18, 1897. 

Reported  in  168  Massachusetts  ReportSf  266. 

Tort  for  deceit.  The  declaration  alleged  that  the  plaintiff  sold  and 
conveyed  to  the  defendant  certain  real  estate  situate  in  Medford  "  for 
the  sum  of  nineteen  hundred  dollars,  and  received  in  payment  thereof 
fomteen  hundred  dollars  in  cash  and  four  certain  promissory  notes  all 
signed  by  one  H.  Joseph,  amounting  together  to  the  sum  of  six  him- 
dred  and  fourteen  himdredths  dollars;  that  the  defendant,  to  induce 
the  plaintifif  to  convey  said  real  estate  to  him,  falsely  represented  to 
the  plaintiff  that  the  maker  of  said  notes  was  a  man  of  property,  and 
that  said  notes  were  as  *  good  as  gold  ';  that  your  plaintiff,  believing 
said  representations  to  be  true,  was  thereby  induced  to  convey  said 
real  estate  to  the  defendant;  that  said  representations  were  false  and 
were  known  to  the  defendant  to  be  false,  and  by  reason  thereof  the 
plaintiff  suffered  great  damage." 

Trial  in  the  Superior  Court,  without  a  jury,  before  Hammond,  J., 
who  foimd  for  the  plsdntiff ;  and  the  defendant  allied  exceptions,  the 
nature  of  which  appears  in  the  opinion. 

The  case  was  submitted  on  briefs  to  all  the  justices. 

Knowlton,  J.  The  principal  question  in  this  case  is  whether  there 
was  any  evidence  to  warrant  a  finding  that  the  false  representations 
made  by  the  defendant  in  regard  to  the  notes  were  actionable.  This 
finding  is  in  these  words:  ''  I  find  that  the  defendant  represented 
these  notes  to  be  as  good  as  gold,  and  that  that  representation  was  in- 
tended by  him  and  imderstood  by  the  plaintiff,  not  to  be  an  expression 
of  opinion,  but  a  statement  of  a  fact  of  his  own  knowledge.  I  find 
that  the  notes  were  worthless."  It  is  contended  by  the  defendant  that 
such  a  representation  is  necessarily,  and  as  a  matter  of  law,  a  mere  ex- 
pression of  opinion,  for  which,  however  wilfully  false,  and  however 
damaging  in  the  reliance  placed  upon  it,  no  action  can  be  main- 
tained. 

It  is  true  that  such  a  representation  may  be,  and  often  is,  a  mere 
expression  of  opinion.    But  we  think  that  it  may  be  made  imder  such 

171  Mass.  307;  Nowlin  v.  Snow,  40  Mich.  699;  Myers  v.  Alpena  Loan  Ass'n,  117 
Mich.  389:  Getchell  v.  Dusenburv,  145  Mich.  197;  Perkins  v.  Trinka,  30  Minn.  241 ; 
Brown  v.  South  Joplin  Min.  Co.,  194  Mo.  681 ;  Ray  County  Bank  v.  Hutton,  224 
Mo.  42;  Fisher  v.  Seitz,  172  Mo.  App.  162;  Duflfany  v.  Fermison,  66  N.  Y.  482; 
Hatton  V.  Cook,  166  App.  Div.  257;  Pritchard  v.  Dailey,  168  N.  C.  330;  Martin  v. 
Eagle  Creek  Development  Co.,  41  Or.  448;  Watts  v.  Cummins,  59  Pa.  St.  84;  Hor- 
rigan  v.  First  Nat.  Bank,  9  Baxt.  137;  Jude  v.  Woodbum,  27  Vt.  416;  Randall  v. 
Farnum,  52  Vt.  539;  Romaine  v.  Excelsior  Machine  Co.,  54  Wash.  41;  Crislip  v. 
Cain,  19  W.  Va.  438  Accord. 

Compare  Wall  v,  Graham,  192  Ala.  396;  Barron  Estate  Co.  v.  Woodruff  Co.,  163 
Cal.  561;  Phelps  v.  Grady,  168  Cal.  73;  Sleeper  v.  Smith,  77  N.  H.  337;  Olston  v. 
Oregon  R.  Co.,  52  Or.  343. 

Opinion  of  third  person,  see  Adams  v.  CoUins,  196  Mass.  422. 


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556  ANDREWS  V.  JACKSON  [CHAP.  IV. 

circumstances  and  in  such  a  way  as  properly  to  be  understood  as  a 
statement  of  fact  upon  which  one  may  well  rely. 

In  Stubbs  V.  Johnson,  127  Mass.  219,  one  of  the  representations  in 
regard  to  a  note  was  that  it  was  "  as  good  as  gold,"  and  the  jury  were 
instructed  that,  if  this  was  intended  as  a  representation  of  the  financial 
ability  of  the  maker  of  the  note,  it  was  a  statement  of  a  material  fact, 
for  which  the  defendant  was  liable.  This  instruction  was  held  erro- 
neous "  because  a  representation  as  to  a  man's  financial  abiUty  to  pay 
a  debt  may  be  made  either  as  a  matter  of  o^Hnion,  or  as  a  matter  of 
fact;  the  subject  of  the  statement  does  not  necessarily  determine 
which  it  is.  .  .  .  It  is  often  imposable,*' says  Mr.  Justice  Colt  further 
in  the  opinion,  "  to  determine,  as  matter  of  law,  whether  a  statement 
is  a  representation  of  a  fact,  which  the  defendant  intended  should  be 
understood  as  true  of  his  own  knowledge,  or  an  expression  of  opinion. 
That  will  depend  upon  the  nature  of  the  representation,  the  meaning 
of  the  language  used,  as  appUed  to  the  subject  matter,  and  as  inter- 
preted by  the  surroimding  circumstances,  in  each  case.  The  question 
is  generally  to  be  submitted  to  the  jury."  The  opinion  plainly  implies 
that,  if  the  jury  had  been  left  to  determine  whether  there  was  a  rep- 
resentation of  the  maker's  financial  abiUty  to  pay  made  as  matter  of 
fact  and  not  as  mere  matter  of  opinion,  they  might  have  foimd  against 
the  defendant  on  his  false  representation  that  the  note  was  "  as  good 
as  gold."  In  Belcher  v.  Costello,  122  Mass.  189,  there  is  also  a  strong 
intimation  that  the  rule  is  as  above  stated.  In  Saflford  v.  Grout,  120 
Mass.  20,  the  representation  set  out  in  the  declaration  was  that  the 
maker  of  the  note  "  was  a  person  of  ample  means  and  abiUty  to  pay 
said  note,  and  that  the  note  was  good."  The  plaintiff  was  allowed  to 
recover.  The  court  sa3rs  of  the  representations,  "  We  must  presiune 
that  they  were  l^ally  sufficient  to  support  the  action;  that  is  to  say, 
that  they  were  "Statements  of  facts  susceptible  of  knowledge,  as  dis- 
tinguished from  matters  of  mere  opinion  or  belief."  See  also  Morse 
V.  Shaw,  124  Mass.  69;  Teague  v.  Irwin,  127  Mass.  217. 

In  two  recent  cases.  Way  v.  Ryther,  165  Mass.  226,  and  Kilgore  v. 
Bruce,  166  Mass.  136, 138,  this  court  has  expressed  a  disinclination  to 
extend  the  rule  which  permits  dealers  to  indulge  with  impunity  in 
false  representations  of  opinion. 

In  the  case  now  before  us  the  notes  were  turned  over  to  the  plaintiff 
in  part  payment  of  the  agreed  price  for  land  sold  to  the  defendant. 
He  professed  to  know,  and  probably  did  know,  all  about  the  financial 
standing  of  the  maker  of  them,  who  lived  in  Boston.  The  plaintiff 
lived  in  a  suburban  town  and  knew  nothing  of  the  maker.  She  was 
obliged  to  take  the  defendant's  representations  or  to  decline  to  deal 
with  him  until  she  could  go  to  Boston  and  make  an  investigation  for 
herself.^    He  told  her  that  he  had  lent  money  to  the  maker,  and  said, 

1  Jarratt  v.  Langston,  99  Ark.  438;  Baum  v,  Holton,  4  Col.  App.  406;  Shelton 
V.  Healy,  74  Conn.  266;  Kenner  v.  Harding,  85  III.  264;  Dwight  v.  Chase,  3  111. 


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CHAP.  IV.]  ANDREWS  V.  JACKSON  557 

"  Do  you  suppose  I  would  lend  my  money  to  any  one  that  was  not 
good  ? '' 

A  representation  that  a  note  is  as  good  as  gold  may  be  foimded  on 
absolute  personal  knowledge  of  the  validity  of  the  note,  and  upon  an 
equally  certain  knowledge  of  the  maker's  financial  ability.  The  known 
facts  upon  which  financial  ability  depends  may  be  so  clear  and  cogent 
as  to  make  the  consequent  conclusion,  which  ordinarily  would  be  a 
mere  matter  of  opinion,  a  matter  of  moral  certainty  which  can  prop- 
erly be  called  knowledge.  We  cannot  say,  as  matter  of  law,  that  this 
representation  was  not  intended  to  be,  and  properly  understood  to  be, 
a  representation  of  facts  within  the  defendant's  knowledge. 

ITie  case  of  Deming  v.  Darling,  148  Mass.  504,  differs  materially 
from  this  at  bar.  The  property  to  which  the  representation  related 
was  one  of  many  mortgage  bonds  issued  by  a  railroad  company,  of 
which,  in  the  language  of  the  opinion,  the  "  market  prices  at  least  were 
easily  accessible  to  the  plaintifif."  The  representations  which  were 
held  to  be  insufficient  on  which  to  found  an  action  were  "  in  relation 
to  the  value  of  the  bond  in  question,  or  of  the  railroad,  its  terminals, 
and  other  property  which  were  mortgaged  to  secure  it."  The  value  of 
articles  sold  in  market,  and  especially  of  railroad  property  and  of  rail- 
road bonds  payable  in  the  distant  future,  is  ordinarily  only  a  matter 
of  opinion.  A  statement  of  the  value  of  such  property  is  very  differ- 
ent from  a  statement  that  a  promissory  note  which  is  almost  due  is 
known  to  be  vaUd,  and  that  the  maker  of  it  is  a  person  of  such  known 
integrity  and  financial  ability  that  his  promise  to  pay  is  as  good  as  that 
of  the  state  or  nation.  A  statement  that  a  note  is  as  good  as  gold  may 
be  intended  to  represent  facts  of  this  kind. 

Exceptions  overruled} 

App.  67;  Wightman  v.  Tucker,  50  III.  App.  75;  Coulter  v,  Clark,  160  Ind.  311; 
Stauffer  v.  Hulwick,  176  Ind.  410;  Beck  v.  Goar,  180  Ind.  81;  Automobile  Co.  r. 
Crowell,  149  N.  W.  861;  Hetland  v.  Bilstad,  140  la.  411;  Picard  v.  McCormick,  11 
Mich.  68;  Nowlin  v.  Snow,  40  Mich.  699;  McDonald  v.  Smith,  139  Mich.  211; 
Conlan  v.  Roemer,  52  N.  J.  Law,  53;  Bacon  v.  Frisbie,  15  Hun,  26;  Marshall  v. 
Seelig,  49  App.  Div.  433;  Ganow  v.  Ashton,  32  S.  D.  458;  Rodee  v.  Seaman,  33  S.  D. 
184;  Rorer  Iron  Co.  v.  Trout,  83  Va.  397;  Fitzgerald  v.  Frankel,  109  Va.  603; 
Grant  v.  Huschke,  74  Wash.  257  Accord. 

1  Winkler  v.  Jerrue,  20  Cal.  App.  555;  Hodgkins  v,  Dunham,  10  Cal.  App.  690; 
Olvey  V.  Jackson,  106  Ind.  286;  Crane  v.  Elder.  48  Kan.  259;  Gumey  v.  Tenney, 
197  Mass.  457;  Van  de  Wiele  v.  Garbade,  60  Or.  585;  Corey  v.  Boynton,  82  Vt. 
257;  Simons  v,  Cissna,  52  Wash.  115  Accord.  Compare  Foster  v.  Kennedy,  38  Ala. 
359;  Sheer  v.  Hoyt,  13  Cal.  App.  662;  Judy  v.  Jester,  53  Ind.  App.  74;  Burr  v. 
Willson,  22  Minn.  206;  Adan  v.  Steinbrecher,  116  Minn.  174. 


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558  WILLIAMS  V.  STATE  [CHAP.  IV. 

WILLIAMS  V.  STATE 

Supreme  Court,  Ohio,  February  11, 1908. 

Reported  in  77  Ohio  Stale  Reports,  468. 

Error  to  the  Circuit  Court  of  Montgomery  County. 

The  plaintiff  in  error  was  indicted  for  obtaining  money  and  property  by 
certain  false  pretences,  to  wit:  that  certain  real  estate  situate  in  Benton 
township,  Pike  County,  being  one  hundred  and  ten  acres  in  quantity,  was 
then  and  there  of  the  value  of  $11,000,  and  that  one  Martha  M.  Williams, 
then  and  there  believing  said  representation  of  value  to  be  true,  and  relying 
and  acting  upon  that  belief,  was  induced  to  and  did  purchase  from  the  plain- 
tiff in  error,  the  said  real  estate,  and  accepted  his  d^  therefor,  and  gave  to 
him  and  one  Neal  Overholser  in  payment  therefor,  money  and  property  to  the 
amount  and  value  of  $7700,  whereas,  in  fact,  the  said  real  estate  was  not  then 
and  there  of  the  value  of  $11,000,  and  was  of  the  value  not  to  exceed  three 
dollars  per  acre,  that  is,  $330  in  all;  and  that  the  plaintiff  in  error  then  and 
there  knew  that  the  value  of  said  real  estate  did  not  exceed  the  sum  of  $330, 
and  knew  at  the  time  he  so  falsely  represented  the  value  of  said  real  estate 
that  the  same  was  false.  To  this  indictment  the  plaintiff  in  error  filed  a 
motion  to  quash  and  also  a  demurrer,  which  were  both  overruled;  and  the 
case  coming  on  for  trial,  at  the  close  of  the  evidence  introduced  by  the  state, 
a  motion  was  made  by  the  defendant  to  instruct  the  jury  to  return  a  verdict 
of  acquittal,  which  was  overruled;  and  the  court  thereupon  charged  the 
jury,  among  other  things,  as  follows:  "  But  where  the  buyer  relies  entirely 
upon  the  representations  of  the  seller  and  the  seller  knows  that  the  property 
he  is  describing  is  of  such  small  value  as  to  be  practically  worthless,  and 
nevertheless  represents  it  to  be  worth  a  specified  sum  of  great  amount,  and 
the  discrepancy  between  the  real  and  the  represented  value  is  so  enormous 
as  to  shock  the  conscience;  when  the  representation  is  so  grossly  untrue  that 
it  could  not  be  made  upon  any  possible  foundation  of  belief;  and  when  it 
appears  that  the  seller  was  plainly  seeking  by  means  of  such  statement  to 
obtain  the  property  of  the  buyer  and  practically  return  no  equivalent  there- 
for, the  court  takes  the  responsibility  of  saying  to  you  that  you  have  the 
right,  if  your  judgment  of  evidence  so  convinces  you,  to  regard  such  repre- 
sentations as  one  of  fact  rather  than  mere  opinion."  The  jury  found  the  de- 
fendant guilty  and  judgment  was  rendered  accordingly,  which  judgment  was 
affirmed  by  the  Circuit  Court,  and  this  proceeding  in  error  is  to  reverse  that 
judgment.^ 

Davis,  J.  A  statement  of  value  may  be  given  either  as  an  opinion  or  as  a 
statement  of  fact.  All  the  authorities  agree  that  if  a  statement  of  value  is 
given  as  an  opinion  merely  it  cannot  be  regarded  as  a  foundation  for  an  indict- 
ment. But  if  the  statement  is  made  as  an  existing  fact,  when  the  accused 
knows  it  to  be  false  and  intends  it  to  be  an  inducement  to  the  other  party,  and 
it  is  so  understood  and  relied  upon  by  the  other  party,  then  it  becomes  a  false 
representation  of  a  material  fact  for  which  the  party  making  the  representa- 
tion is  indictable.  Whether  the  representation  of  value  is  intended  as  an  ex- 
pression of  opinion,  or  whether  it  was  made  as  a  statement  of  an  existing  fact 

*  Arguments  omitted. 


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CHAP.  IV.]  WILLIAMS  V.  STATE  559 

which  the  speaker  intends  to  be  an  inducement  to  the  other  party,  is  therefore 
a  material  question  of  fact  to  be  determined  by  the  jury. 

There  is  no  novelty  in  this  view  of  the  law.  In  Reg.  v,  Evans,  8  Cox,  C.  C. 
257,  it  was  said  by  Pollock,  C.  B.:  "As  my  brother,  Crowder,  J.,  has  sug- 
gested, if  the  prisoner  had  represented  the  note  to  be  of  the  value  of  £5  when 
she  knew  it  was  not  of  that  value,  she  might  have  been  guilty  of  false  pre- 
tences." In  People  v.  Peckens,  153  N.  Y.  576,  591,  the  court  say:  "  It  is 
insisted  that  many  of  the  representations  to  the  complainant  and  her  husband, 
which  induced  the  making  and  delivery  of  her  deed,  were  expressions  of 
opinion,  and  although  false  and  known  to  be  so,  no  liability  resulted.  As  a 
general  rule,  the  mere  expression  of  an  opinion,  which  is  understood  to  be  only 
an  opinion,  does  not  render  a  person  expressing  it  liable  for  fraud.  But  where 
the  statements  are  as  to  value  or  quality,  and  are  made  by  a  person  knowing 
them  to  be  untrue,  with  an  intent  to  deceive  and  mislead  the  one  to  whom  they 
are  made,  apd  he  is  thus  induced  to  forbear  making  inquiries  which  he  other- 
wise would,  that  may  amount  to  an  affirmation  of  fact  rendering  him  liable 
therefor.  In  such  a  case,  whether  a  representation  is  an  expression  of  an 
opinion  or  an  affirmation  of  a  fact  is  a  question  for  the  jury.  The  rule  that  no 
one  is  liable  for  an  expression  of  an  opinion  is  applicable  only  when  the  opinion 
stands  by  itself  as  a  distinct  thing.  If  it  is  given  in  bad  faith,  with  knowledge 
of  its  untruthfulness,  to  defraud  others,  the  person  making  it  is  liable,  espe- 
cially when  it  is  as  to  a  fact  affecting  quality  or  value  and  is  peculiarly  within 
the  knowledge  of  the  person  making  it.  Watson  v.  People,  87  N.  Y.  561; 
Simar  v,  Canaday,  53  N.  Y.  298;  Hickey  v.  MorreU,  102  N.  Y.  454,  463; 
Schumacher  v,  Mather,  133  N.  Y.  590,  595."  The  same  view  of  the  question 
is  presented  in  Holton  v.  State,  109  Ga.  127, 130;  and  also  in  People  v.  Jordan, 
66  Cal.  10, 13, 14. 

Simar  v.  Canaday,  53  N.  Y.  298,  was  a  civil  action  for  damages  for  an 
alleged  fraud  in  inducing  the  plaintiffs  to  convey  certain  premises.  The  court, 
at  page  306,  said:  "  The  defendant  contends  that  the  representations  alleged 
to  have  been  made  by  the  defendant  were  not  such  as  to  afford  a  ground  for  an 
action.  It  is  first  insisted  that  the  statements  as  to  the  value  of  the  lands  and 
of  the  mortgages  thereon  were  mere  matter  of  opinion  and  belief,  and  that  no 
action  could  be  maintained  upon  them  if  false.  If  they  were  such,  no  liability 
is  created  by  the  utterance  of  them;  but  all  statements  as  to  the  value  of 
property  sold  are  not  such.  They  may  be,  under  certain  circumstances, 
affirmation  of  fact.  When  known  to  the  utterer  to  be  untrue,  if  made  with  the 
intention  of  misleading  the  vendee,  if  he  does  rely  upon  them  and  is  misled  to 
his  injury,  they  avoid  the  contract.  Stebbins  v.  Eddy,  4  Mason,  414-423. 
And  where  they  are  fraudulently  made  of  particulars  in  relation  to  the  estate 
which  the  vendee  has  not  equal  means  of  knowing,  and  where  he  is  induced  to 
forbear  inquiries  which  he  would  otherwise  have  made,  and  damage  ensues, 
the  party  guilty  of  the  fraud  should  be  liable  for  the  damagersustained.  Med- 
bury  V.  Watson,  6  Mete.  246,  per  Hubbard,  J. ;  and  see  McClellan  v,  Scott, 
24  Wis.  81."  More  recently  the  cases  of  Coulter  v.  Minion,  139  Mich.  200, 
and  Scott  v,  Bumight,  131  la.  507,  are  to  the  same  effect. 

These  considerations  determine  every  question  raised  upon  the  record  and 
therefore  the  judgment  of  the  Circuit  Court  is  Affirmed. 

Pbice,  Crew,  Summebs  and  Spear,  JJ.,  concur. 


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560  SMITH  V.  LAND  CORPORATION  [CHAP.  IV. 

BowBN,  L.  J.,  IN  SMITH  V.  LAND  CORPORATION 
(1884)  Law  Reports,  28  Chancery  Division,  15-16. 

In  considering  whether  there  was  a  misrepresentation,  I  will  first 
deal  with  the  argument  that  the  particulars  only  contain  a  statement 
of  opinion  about  the  tenant.  It  is  material  to  observe  that  it  is  often 
fallaciously  assumed  that  a  statement  of  opinion  cannot  involve  the 
statement  of  a  fact.  In  a  case  where  the  facts  are  equally  well  known 
to  both  parties,  what  one  of  them  says  to  the  other  is  frequently  noth- 
ing but  an  expression  of  opinion,  llie  statement  of  such  opinion  is  in 
a  sense  a  statement  of  a  fact,  about  the  condition  of  the  man's  own 
mind,  but  only  of  an  irrelevant  fact,  for  it  is  of  no  consequence  what 
the  opinion  is.  But  if  the  facts  are  not  equally  known  to  both  sides, 
then  a  statement  of  opinion  by  the  one  who  knows  the  facts  best  in- 
volves very  often  a  statement  of  a  material  fact,  for  he  impliedly  states 
that  he  knows  facts  which  justify  his  opinion.  Now  a  landlord  knows 
the  relations  between  himself  and  his  tenant;  other  persons  either  do 
not  know  them  at  all  or  do  not  know  them  equally  well,  and  if  the 
landlord  sa3rs  that  he  considers  that  the  relations  between  himself  and 
his  tenant  are  satisfactory,  he  really  avers  that  the  facts  peculiarly 
within  his  knowledge  are  such  as  to  render  that  opinion  reasonable. 
Now  are  the  statements  here  statements  which  involve  such  a  repre- 
sentation of  material  facts  ?  They  are  statements  on  a  subject  as  to 
which  prima  facie  the  vendors  know  everything  and  the  purchasers 
nothing.  The  vendors  state  that  the  property  is  let  to  a  most  desir- 
able tenant;  what  does  that  mean  ?  I  agree  that  it  is  not  a  guarantee 
that  the  tenant  will  go  on  paying  his  rent,  but  it  is  to  my  mind  a 
guarantee  of  a  different  sort,  and  amounts  at  least  to  an  assertion  that 
nothing  has  occurred  in  the  relations  between  the  landlords  and  the 
tenant  which  can  be  considered  to  make  the  tenant  an  unsatisfactory 
one.  This  is  an  assertion  of  a  specific  fact.  Was  it  a  true  assertion  ? 
Having  regard  to  what  took  place  between  Lady  Day  and  Midsummer, 
I  think  that  it  was  not.  On  the  26th  of  March,  a  quarter's  rent  be- 
came due.  On  the  1st  of  May,  it  was  wholly  unpaid  and  a  distress 
was  threatened.  The  tenant  wrote  to  ask  for  time.  The  plaintiffs 
replied  that  the  rent  could  not  be  allowed  to  remain  over  Whitsuntide. 
The  tenant  paid  on  the  6th  of  May  £30,  on  the  13th  of  June  £40,  and 
the  remaining  £30  shortly  before  the  auction.  Now  could  it,  at  the 
time  of  the  auction,  be  said  that  nothing  had  occurred  to  make  Fleck 
an  tmdesirable  tenant  ?  In  my  opinion  a  tenant  who  had  paid  his  last 
quarter's  rent  by  driblets  under  pressure  must  be  regarded  as  an  im- 
desirable  tenant.^ 

1  See  also  Nevada  Bank  v,  Portland  Nat.  Bank,  59  Fed.  338. 

In  Aaron's  Reefs  v.  Twiss,  [1896]  A.  C.  273,  Lord  Halsbury,  L.  C,  said  (pp.  283- 
284) :  "  I  do  not  think  any  particular  form  of  words  is  necessary  to  convey  a  false 
impression.   Supposing  a  person  goes  to  a  bank  where  the  people  are  foolish  enough 


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CHAPrlV/]  KIDNEY  V.  STODDARD  561 

KIDNEY  V.  STODDARD 

Supreme  Judicial  Court,  Massachusetts,  October  Term,  1843. 

Reported  in  7  Metcalf,  252. 

Trespass  upon  the  case  for  an  alleged  fraudulent  representation  by 
the  defendant  as  to  the  credit  of  his  son,  Alden  D.  Stoddard,  Jr.,  in 
the  following  letter  to  F.  Delano  of  New  York:  "  Fairhaven,  9  mo. 
27,  1841.  Franklin  Delano,  Esq.  My  dear  Sir:  The  bearer,  my  son, 
A.  D.  Stoddard,  Jr.,  wishes  to  purchase  a  bill  of  goods  in  your  city. 
Any  assistance  you  can  render  him,  by  a  recommendation  or  other- 
wise, will  be  gratefully  received  by  him,  and  much  oblige  your  obedient 
servant,  who  will  take  the  liberty  to  say  that  A.  D.  S.  Jr.'s  contracts, 
of  whatever  nature,  will  imquestionably  be  pimctually  attended  to. 
Very  respectfully  your  friend,  A.  D.  Stoddard." 

At  the  trial  before  Wilde,  J.,  one  Ammidon  testified  that  he  was 
agent  of  the  plaintiffs;  that  Stoddard,  Jr.,  called  on  him  in  New 
York,  about  the  1st  of  October,  1841,  to  purchase  some  goods,  and 
referred  him  to  Delano;  that  the  witness  called  on  Delano,  who 
showed  said  letter  to  him,  and  made  statements  concerning  Stoddard, 
Senior.  The  witness  sold  the  son  goods  which  he  would  not  have  sold 
him,  if  it  had  not  been  for  the  letter  and  the  statements  of  Delano.  No 
part  of  the  debt  was  ever  paid.  After  the  sale  the  plaintiff  discovered 
that  the  son  was  a  minor  at  the  time  the  letter  was  written. 

The  judge  instructed  the  jury  that  when  a  party  intentionally  con- 
ceals a  material  fact,  in  giving  a  letter  of  recommendation,  it  amounts 
to  a  false  representation;  that  the  defendant,  giving  a  letter  in  this 
case  to  an  unlimited  amoimt,  was  boimd  to  communicate  every  ma- 

to  believe  his  words,  and  says, '  I  want  a  mortgage  upon  my  house,  and  my  house 
is  not  completed,  but  in  the  course  of  next  week  I  expect  to  have  it  fully  com- 
pleted.' Suppose  there  was  not  a  house  upon  his  land  at  all,  and  no  possibility, 
therefore,  that  it  could  be  fully  completed  next  week,  can  anybody  say  that  that 
was  not  an  affirmative  representation  that  there  was  a  house  which  was  so  near  to 
completion  that  it  only  required  another  week's  work  upon  it  to  complete  it  ? 
Could  anybody  defend  himself  if  he  was  chared  upon  an  indictment  for  obtaining 
money  under  false  pretences,  the  allegation  m  the  indictment  being  that  he  pr&- 
tendea  that  there  was  a  house  so  near  completion  that  it  only  required  a  week's 
work  upon  it,  by  saying  that  he  never  represented  that  there  was  a  house  there  at 
all  ?  ^  here,  when  I  look  at  the  language  in  which  this  prospectus  is  couched,  and 
see  that  it  speaks  of  a  property  which  requires  only  the  erection  of  machinery  to  be 
either  at  once  or  shortly  m  a  condition  to  do  work  so  as  to  obtain  all  this  valuable 
metal  from  the  mine,  it  seems  to  me  that,  although  it  is  put  in  ambidextrous 
language,  it  mecms  as  plainly  as  can  be  that  this  is  now  the  condition  of  the  mine, 
that  such  and  such  additions  to  it  will  enable  it  shortly  to  produce  all  those  great 
results,  and  that  that  is  a  representation  of  an  actiwJly  existing  fact.  I  should 
quite  agree  with  the  proposition  that  the  Lord  Chancellor  of  Ireland  and  the 
Master  of  the  Rolls  put  forwwd  —  if  you  are  looking  to  the  language  as  only  the 
language  of  hope,  expectation,  and  confident  belief,  that  is  one  thing;  but  it  does 
not  seem  to  have  been  in  the  minds  of  the  learned  judges  that  you  may  use  lan- 
guage in  such  a  way  as,  althou^  in  the  form  of  hope  and  expectation,  it  may  be- 
come a  representation  as  to  existing  facts;  and  if  so,  and  if  it  is  brought  to  your 
knowledge  that  these  facts  are  false,  it  is  a  fraud." 


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562  KIDNEY  V,  STODDARD  [CHAP.  IV. 

terial  fact;  that  if  he  concealed  tjhe  fact  that  the  son  was  a  mmor,  with 
the  view  to  give  him  a  credit,  knowing  or  believing  that  he  would  not 
get  a  credit  if  that  fact  was  known,  it  was  a  fraud,  and  the  plaintiff 
was  entitled  to  recover;  that  it  was  immaterial  whether  there  was  any 
moral  fraud;  and  that  every  man  was  presumed  to  know  the  conse- 
quences of  his  own  acts. 

The  defendant's  counsel  requested  the  judge  to  instruct  the  jury, 
that  if  the  defendant  gave  his  opinion  merely,  he  was  not  bound  to 
conmiunicate  any  facts;  and  that  if  he  gave  an  honest  opinion,  he  was 
not  liable.  But  the  judge  refused  so  to  mstruct  the  jury.  It  was  also 
contended  by  the  defendant's  counsel  that  the  plaintiffs  should  have 
made  an  effort  to  recover  the  debt  of  the  son. 

The  jury  found  a  verdict  for  the  plaintiffs  for  the  amoimt  of  the 
goods  sold,  and  the  defendant  moved  for  a  new  trial,  on  the  ground 
that  the  jury  were  misdirected  in  matter  of  law.^ 

Hubbard,  J. 

It  is  very  certain,  as  has  been  maintained  by  the  defendant's  coun- 
sel, that  a  mistaken  opinion,  honestly  given,  can  never  be  taken  as  a 
fraudulent  representation.  This  is  true  in  principle,  and  supported 
abimdantly  by  authorities.  But  the  misfortime  of  the  defendant's 
case  is,  that  the  verdict  of  the  jury  rests  not  on  the  honest  mistake  of 
the  defendant,  but  upon  the  ground  of  material  concealment  of  a  fact 
especially  within  his  knowledge;  a  fact  important  to  be  known,  as  it 
regarded  the  credit  of  the  son;  a  fact  designedly  concealed,  and  with 
the  view  of  obtaining  that  credit  for  the  son,  which  he,  the  father, 
knew  or  believed  he  could  not  obtain  if  that  fact  were  known. 

It  needs  no  lengthened  argument  to  establish  the  materiality  of  the 
fact.  The  result  of  this  case  is  a  sufficient  witness  of  it.  The  plain- 
tiffs were  induced  by  the  letter,  from  which  this  fact  was  carefully 
excluded,  to  give  a  credit  to  the  son,  which  they  would  not  otherwise 
have  given;  and  as  the  direct  consequence  of  it,  they  have  sustained 
the  loss  set  out  in  the  declaration.  Here  then  are  proved  fraud  and 
deceit  on  the  part  of  the  defendant,  and  damage  to  the  plsdntiffs;  and 
these  facts  have  long  been  held  to  constitute  a  substantial  cause  of 
action.  From  the  time  of  the  judgment  in  the  great  case  of  Pasley  v. 
Freeman,  3  T.  R.  51,  to  the  present  day,  through  the  long  line  of 
decisions  both  in  England  and  America,  the  principle  of  that  case, 
though  with  some  statute  modifications,  remains  unshaken  and 
unimpaired. 
'     [Remainder  of  opinion  omitted.]  Judgment  on  the  verdicts 

^  The  statement  has  been  abridged. 

«  Loewer  v.  Harris,  (C.  C.  A.)  57  Fed.  368:  King  v.  White,  119  Ala.  429;  Christy 
V,  Campbell,  36  Col.  261 ;  Kronfeld  v.  Missal,  87  Conn.  491 ;  James  v.  Crosthwait, 
97  Ga.  673;  Gordon  v,  Irvine,  105  Ga.  144;  Aortson  v.  Rideway,  18  111.  23;  Day- 
ton ».  Kidder.  105  111.  App.  107;  Craig  v.  Hamilton,  118  Ind.  565;  Firestone  v, 
Werner,  1  Ind.  App.  293;  Coles  v.  Kennedy,  81  la.  360;  Howerton  v.  Augustine, 


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CHAP.  IV.  H  DERBY  V.  PEEK  563 

DERRY  V.  PEEK 

In  the  House  op  Lords,  July  1, 1889 

Reported  in  Law  ReporU,  14  Appeal  Cases,  337. 

The  action  in  this  case  was  brought  by  Sir  H.  Peek  against  Mr.  W. 
Deny,  the  chairman,  and  Messrs.  J.  C.  Wakefield,  M.  M.  Moore,  J. 
Pethick,  and  S.  J.  Wilde,  four  of  the  directors  of  the  Plymouth,  De- 
vonport,  and  District  Tramways  Company,  claiming  damages  for  the 

130  la.  389;  Nairn  v.  Ewalt,  51  Kan.  355;  Paris  v.  Lewis,  2  B.  Mon.  375;  Weikel 
t;.  Stems,  142  Ky.  513;  Prentiss  v,  Russ,  16  Me.  30;  Barrett  v.  Lewiston  R.  Co., 
110  Me.  24;  Johnston  v.  Cope,  3  Har.  &  J.  89;  Bums  v.  Dockray,  156  Mass.  135; 
Batty  V.  Greene,  206  Mass.  561;  Kenyon  v.  WoodmflF,  33  Mich.  310;  Tompkins 
V.  Hollister,  60  Mich.  470;  Busch  v,  Wilcox,  82  Mich.  315;  Marsh  v.  Webber, 
13  Minn.  109;  Thomas  v.  Murphy,  87  Minn.  358:  McAdams  v.  Cates,  24  Mo.  223; 
Morley  v.  Harrah.  167  Mo.  74;  Manter  v.  Tmesdale,  57  Mo.  App.  435;  Stevens  v. 
Fuller,  8  N.  H,  463;  Fleming  v.  Slocum,  18  Johns.  403;  Allen  v.  Addington,  7 
Wend.  9;  March  v.  First  National  Bank,  4  Hun,  466;  Brown  v.  Gray,  6  Jones  Law, 
103;  Lunn  v.  Shermer,  93  N.  C.  164;  Gidney  v.  Chappell,  26  Okl.  737;  Fitzhu^ 
V,  Nirschl,  77  Or.  514;  Rheen  v.  Naugatuck  Wheel  Co.,  33  Pa.  St.  356;  CardweU  v. 
McClelland,  3  Sneed,  150;  Allison  v,  Tyson,  5  Humph.  449;  Graham  v.  Stiles,  38 
Vt.  578;  Maynard  v,  Maynard,  49  Vt.  297;  Crompton  v.  Beedle,  83  Vt.  287; 
Jarrett  v.  Goodnow,  39  W.  Va.  602;  Mor^i  t;.  Hodge.  145  Wis.  143  Accord. 
Compare:  Randolph  v.  Allen,  (C.  C.  A.)  73  Fed.  23;  Ball  v.  Farley,  81  Ala.  288; 
Cherry  v.  Brizzolara,  89  Ark.  309;  Roper  v,  Sangamon  Lodge,  91  111.  518;  Potts  v, 
Chapin,  133  Mass.  276;  Cochrane  v.  Halsey,  25  Minn.  52;  Crowell  v,  Jackson, 
53  N.  J.  Law,  656;  Babcock  v,  Libbey,  82  N.  Y.  144;  Jones  v.  Stewart,  62  Neb. 
207;  Wicker  v.  Worthy,  51  N.  C.  500;  Harris  v.  Tyson,  24  Pa.  St.  347;  Iron  Bank 
V.  Anderson,  194  Pa.  St.  205;  Bishop  v,  Buckley,  33  Pa.  Super.  Ct.  123;  Campbell 
V,  Kinlock,  9  Rich.  Law,  300. 

In  Wiser  v.  Lawler,  189  U.  S.  260,  Brown,  J.,  said  (pp.  264-65) :  "  Attached  to 
these  prospectuses  was  a  map  entitled  *  Map  of  the  group  of  mines  belonging  to  the 
Seven  Stars  Gold  Mining  Cfompany.'  It  is  true  that  tnere  is  neither  in  the  pro- 
spectuses nor  in  the  map  a  distmct  assertion  that  the  legal  title  to  the  properties 
mentioned  was  vested  in  the  Seven  Stars  Company;  but  we  think  that  no  one  can 
read  them  without  inferring  and  believing  that  the  Seven  Stars  was  the  owner  of 
these  properties,  and  that  the  net  proceeds  of  their  operation  would  be  distributed 
in  dividends  to  stockholders.  As  thev  were  circulated  as  an  inducement  to  take 
stock  in  the  enterprises,  we  are  bound  to  interpret  them  by  the  effect  they  would 
produce  upon  an  ordinwy  mind.  Andrews  v.  Mockford,  (1896)  1  ^.  B.  D.  372. 
They  were,  however,  even  more  damaging  in  their  omissions  than  in  their  state- 
ments. No  mention  was  made  of  the  fact  that  the  title  to  these  properties  stood 
in  the  names  of  Lawler  and  Wells;  no  allusion  to  the  Cowland  agreement,  with 
its  provisions  for  forfeiture,  nor  to  the  fact  that  the  only  interest  of  the  company 
was  an  equitable  right  to  the  properties  after  the  sum  of  $450,000  had  been  realized 
from  the  profits  and  paid  to  defendants.  In  estimating  the  probability  of  sub- 
scribers being  misled  by  these  prospectuses  we  may  take  into  consideration  not 
only  the  facts  stated,  but  the  facts  suppressed.  New  Brunswick  Co.  v,  Mugge- 
ridge,  1  Drewejr  &  Smale,  363.  They  are  entitled  to  know  the  cons  as  well  as  tne 
pros.  Gluckstein  v.  Bames,  (1900)  App.  Cas.  240;  Hubbard  v.  Weare,  79  Iowa, 
678;  Hayward  v,  Leeson,  175  Mass.  310;  In  re  Leeds  and  Hanley  Theatres,  (1902) 
2  Ck.  Div.  809." 

In  Peek  v.  Gumey.  L.  R.  6  H.  L.  377,  Lord  Cairns  said  (p.  403):  "  Mere  non- 
disclosure of  material  facts,  however  morally  censurable,  however  that  non-dis- 
closure might  be  a  ground  in  a  proper  proceeding  at  a  proper  time  for  setting  aside 
an  allotment  or  a  purchase  of  shares,  would  in  my  opmion  form  no  ground  for  an 
action  in  the  nature  of  an  action  for  misrepresentation.  There  must,  in  my  opinion, 
be  some  active  misstatement  *of  fact,  or,  at  all  events,  such  a  partial  and  f rag- 


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564  DERRY  V.  PEEK  [CHAP.  IV. 

fraudulent  misrepresentations  of  the  defendants  whereby  the  plaintiff 
was  induced  to  take  shares  in  the  company.^ 

The  company  was  incorporated  in  the  year  1882  for  making  and 
maintaining  tramways  in  Plymouth,  Devonport,  and  Stonehouse.  The 
nominal  capital  was  £125,000  in  shares  of  £10  each. 

The  Plymouth,  Devonport,  and  District  Tramwa3r8  Act,  1882  (45  & 
46  Vict.  c.  clix.),  by  which  the  company  was  incorporated,  contained 
the  following  clause  (sect.  35) :  — 

"  The  carriages  used  on  the  tramways  may,  subject  to  the  provisions 
of  this  Act,  be  moved  by  animal  power,  and,  with  the  consent  of  the 
Board  of  Trade,  during  a  period  of  seven  years  after  the  opening  of  the 
same  for  public  traffic,  and  with  the  like  consent  during  such  further 
periods  not  exceeding  seven  years  as  the  said  board  may  from  time  to 
time  specify  in  any  order  to  be  signed  by  a  secretary  or  an  assistant 
secretary  of  the  said  board,  by  steam-power  or  any  mechanical  power: 
Provided  always,  that  the  exercise  of  the  powers  hereby  conferred  with 
respect  to  the  use  of  steam  or  any  mechanical  power  shall  be  subject  to 
the  regulations  set  forth  in  the  Schedule  A.  to  this  Act  annexed,  and 
to  any  regulations  which  may  be  added  thereto  or  substituted  therefor 
by  any  order  which  the  Board  of  Trade  may  and  which  they  are  hereby 
empowered  to  make  from  time  to  time,  as  and  when  they  may  think 
fit,  for  securing  to  the  public  all  reasonable  protection  against  danger 
in  the  exercise  of  the  powers  by  this  Act  coniferred  with  respect  to  the 
use  of  steam  or  any  mechanical  power  on  the  tramwajrs:  Provided  also, 

mentary  statement  of  fact,  as  that  the  withholding  of  that  which  is  not  stated 
makes  that  which  is  stated  absolutely  false." 

Compare  Mitchell,  J.,  in  Newell  v,  Randall.  32  Minn.  171. 172-73:  "  It  is  doubt- 
less the  general  rule  that  a  purchaser,  when  buying  on  credit,  is  not  boimd  to  dis- 
close the  facts  of  his  financial  condition.  If  he  makes  no  actual  misrepresentations, 
if  he  is  not  asked  any  questions^  and  does  not  give  any  imtnie^  evasive,  or  partial 
answers,  his  mere  silence  as  to  his  general  bad  pecuniary  condition,  or  his  indebted- 
ness, will  not  constitute  a  fraudulent  concealment.  2  Pom.  Eq.  Jur.  §  906;  Bigelow 
on  Fraud,  36,  37.  But  this  was  not  a  case  of  mere  passive  non-disclosure.  The 
object  of  De  Laittre's  inquiry  clearly  was  to  ascertain  Bauman's  financial  con- 
dition and  ability  to  pay.  Bauman's  statement  was  in  response  to  that  inquiry, 
and,  when  he  undertook  to  answer,  he  was  boimd  to  tell  the  whole  truth,  and  was 
not  at  liberty  to  give  an  evasive  or  misleading  answer,  which,  although  literally 
true,  was  partial,  containing  only  half  the  truth,  and  calculated  to  convey  a  false 
impression.  The  natural  construction  which  would,  under  the  circumstances,  be 
put  on  this  statement  is  that  he  had  $3,300  capital  in  his  business.  It  was  couched 
in  language  calculated  to  negative  the  idea  that  this  was  merely  the  gross  amount 
of  his  assets,  and  that  he  owed  debts  to  the  extent  of  two-thirds  or  the  whole  of  that 
amount.  Such  a  statement,  made  under  the  circumstances  it  was,  might  fairly  and 
reasonably  be  understood  as  amounting  to  a  representation  that  he  had  that 
amount  of  capital  which  was  and  would  remain  available,  out  of  which  to  collect 
any  debt  which  he  mi^t  contract  with  plaintiff.  We  tnink  this  is  the  way  in 
which  men  would  ordmarily  have  imderstood  it.  It  is  immaterial  that  more 
explicit  incjuiries  by  plaintiff  would  have  disclosed  the  fact  of  his  indebtedness.  It 
does  not  he  in  Bauman's  mouth  to  say  that  plaintiff  relied  too  implicitlv  on  this 
general  statement.  To  tell  half  a  truth  only  is  to  conceal  the  other  half.  Con- 
cealment of  this  kind,  imder  the  circumstances,  amounts  to  a  false  representation." 

1  The  statement  is  taken  from  37  Ch.  D.  641,  omitting  the  last  part.  Argu- 
ments are  omitted.  None  of  the  opinions  are  given  except  portions  of  Lord 
Herschell's. 


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CHAP.  IV.]  DERRY  V.  PEEK  565 

that  the  company  shall  not  use  steam-power  pr  any  mechanical  power 
on  the  said  tramwa3rs  miless  and  until  they  shall  have  obtained  the 
previous  consent  in  writing  of  the  corporations  [Pl3rmouth  and  Devon- 
port]  therefor,  and  then  for  such  terms  only  and  subject  to  such  con- 
ditions and  r^ulations  as  the  corporations  may  from  time  to  time 
prescribe." 

By  sect.  64  it  was  provided  that  the  company  should  not  open  any  of 
the  tramwa3rs  for  public  traffic  without  the  consent  of  the  corporations. 

In  October,  1882,  the  directors  issued  a  prospectus  which  contained 
the  following  paragraph :  "  As  by  sect.  35  of  the  Plymouth  and  Devon- 
port  District  Tramways  Act,  1882,  power  is  given  to  use  either  animal, 
steam,  or  mechanical  means  of  locomotion,  the  directors  will  adopt 
that  motive  power  which  experience  may  demonstrate  to  be  at  once 
the  most  economical  and  effective."  It  did  not  appear  that  the  plain- 
tiff ever  received  a  copy  of  this  prospectus. 

On  the  1st  of  February,  1883,  the  directors  of  the  company  issued  a 
second  prospectus,  which  contained  a  heading  in  large  type  as  follows : 
"  Incorporated  by  special  Act  of  Parliament  45  &  46  Vict,  authorizing 
the  use  of  steam  or  other  mechanical  motive  power."  The  prospectus 
contained  the  following  paragraphs:  — 

"  One  great  feature  of  this  undertaking,  to  which  considerable  im- 
portance should  be  attached,  is,  that  by  the  special  Act  of  Parliament 
obtained,  the  company  has  the  right  to  use  steam  or  mechanical  mo- 
tive power  instead  of  horses,  and  it  is  fully  expected  that  by  means  of 
this  a  considerable  saving  will  result  in  the  working  expenses  of  the 
line,  as  compared  with  other  tramways  worked  by  horses." 

"  Looking  to  the  exceptional  advantages  offered  by  this  imdertaking 
from  the  dense  population  of  the  towns  it  traverses,  the  unusually  fa-  , 
vorable  conditions  as  to  motive  power  open  to  the  company,  and  the 
annual  dividends  earned  by  other  companies  which  do  not  enjoy  such 
special  privileges,  the  directors  have  reason  to  believe  that  the  enter- 
prise will  prove  highly  remimerative,  and  the  shares  now  for  subscrip- 
tion offer  a  very  favorable  opportunity  for  a  soimd  and  progressive 
investment." 

The  defendants  at  the  same  time  issued  a  circular  letter,  which  was 
sent  with  the  prospectus,  in  which  it  was  stated  that "  the  company  by 
its  Act  enjoys  the  special  privilege  of  the  right  to  use  steam-power 
instead  of  horse-power,  from  which  it  is  expected  considerable  savings 
will  result  in  the  working  expenses." 

The  plaintiff  received  copies  of  this  prospectus  and  circular,  and 
beUeving,  as  he  alleged,  that  the  company  had  an  absolute  right  to  use 
steam  and  other  mechanical  power,  and  relying  upon  the  representa- 
tions and  statements  in  the  prospectus  and  circular,  applied  on  the  7th 
of  February  for  400  shares,  for  which  he  paid  £4000. 

About  £40,000  only  of  the  capital  was  subscribed;  but  the  directors 
completed  part  of  their  tramway  in  Plymouth.    The  corporation  of 


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566  DERRY  V.  PEEK  [CHAP.  IV. 

Devonport  refused  their  consent  to  the  company  opening  the  com- 
pleted part  until  the  remaining  portion  was  ready,  and  on  the  14th  of 
November,  1884,  obtained  an  injunction  restraining  the  company 
from  so  doing.  When  the  Board  of  Trade  were  applied  to,  they  refused 
to  sanction  the  use  of  steam-power  except  over  a  small  portion  of  the 
tramways. 

The  result  was  that  the  company  was  unable  to  carry  out  its  pro- 
posed undertaking,  and  a  petition  for  winding-up  was  presented,  which 
was  followed  by  a  winding-up  order  on  the  2d  of  May,  1885. 

The  writ  in  this  action  was  issued  on  the  4th  of  February,  1885,  a 
few  da3rs  after  the  petition  for  winding-up,  by  Sir  H.  Peek,  against 
the  chairman  and  directors  named  above,  clainiing  in  the  first  instance 
a  rescission  of  the  contract  for  shares  and  repayment  of  the  money 
paid  by  him,  and  damages;  but  the  writ  was  afterwards  amended,  and 
claimed  only  damages  for  ihe  misrepresentations  in  the  prospectus  and 
circular. 

The  defence  pleaded  by  the  defendants  was  that  they  did  not  repre- 
sent, or  intend  to  r^resent,  in  the  prospectus  and  circular,  that  the 
company  had  an  absolute  right  to  use  steam  or  other  mechanical 
power;  that  the  plaintifif  knew  that  the  use  of  steam-power  was  never, 
or  seldom,  given  unconditionally  to  a  tramway  company,  and  that  he 
was  acquainted,  or  might  have  made  himself  acquainted,  with  the  pro- 
visions of  the  company's  special  Act,  which  was  referred  to  in  the 
prospectus,  and  might  be  seen  at  the  company's  office;  and  they  denied 
that  the  plaintiff  was  induced  to  take  the  shares  by  the  representations 
complained  of.  They  also  pleaded  that  if  the  statements  complained 
of  were  untrue,  they  were  made  by  the  defendants  in  good  faith,  and 
that  they  had  reasonable  grounds  for  believing  them  to  be  true:  that 
in  fact  the  consent  of  the  corporation  of  Plymouth  to  the  use  of  steam 
was  given  in  June,  1883,  and  the  consent  of  the  Board  of  Trade  to  its 
being  used  in  a  portion  of  the  tramways  had  also  been  given. 

The  action  came  on  for  hearing  before  Mr.  Justice  Stirling.  At 
this  hearing  the  parties  testified. 

Stirling,  J.,  came  to  the  conclusion  that  the  directors  all  believed 
that  the  company  had  the  right  stated  in  the  prospectus;  and  that 
their  beUef  was  not  unreasonable,  and  their  proceedings  so  reckless 
or  careless,  that  they  ought  to  be  fixed  with  tiie  consequences  of  de- 
cdt.    He  ordered  the  action  to  be  dismissed.^ 

On  appeal  by  plaintiff  to  the  Court  of  Appeal,  the  judgment  of  Stir- 
ling, J.,  was  reversed  by  Cotton,  Hannen,  and  Lopes,  L.JJ.  They 
held  the  directors  liable  in  this  action  for  deceit,  on  the  ground  that 
they  made  the  statement  without  any  reasonable  ground  for  believing 
it  to  be  true.      L.  R.  37  Ch.  Div.  541. 

The  defendants,  Derry,  et  aZ.,  appealed  from  the  decision  of  the 
Court  of  Appeal  to  the  House  of  Lords. 

»  The  opinion  of  Stirling,  J.,  is  reported  in  37  Ch.  D.  560.  See  especially 
656-558. 


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CHAP.  IV.]  DERBY  V.  PEEK  567 

The  House  of  Lords  unanimously  reversed  the  judgment  of  the 
Court  of  Appeal,  and  restored  the  order  of  Stirling,  J.  Opinions 
were  delivered  by  Lords  Halsbury,  Watson,  Bramwell,  Fitzger- 
ald, and  Herschel. 

Portions  of  the  opinion  of  Lord  Herschell  are  as  follows:  — 

Lord  Herschell.  My  Lords,  in  the  statement  of  claim  in  this 
action  the  respondent,  who  is  the  plaintiff,  alleges  that  the  appellants 
made  in  a  prospectus  issued  by  them  certain  statements  which  were 
untrue,  that  they  well  knew  that  the  facts  were  not  as  stated  in  the 
prospectus,  and  made  the  representations  fraudulently,  and  with  the 
view  to  induce  the  plaintiff  to  take  shares  in  the  company. 

"  This  action  is  one  which  is  conmionly  called  an  action  of  deceit, 
a  mere  common-law  action."  This  is  the  description  of  it  given  by 
Cotton,  L.  J.,  in  delivering  judgment.  I  think  it  important  that  it 
should  be  borne  in  mind  that  such  an  action  differs  essentially  from 
one  brought  to  obtain  rescission  of  a  contract  on  the  groimd  of  mis- 
representation of  a  material  fact.  The  principles  which  govern  the 
two  actions  differ  widely.  Where  rescission  is  claimed  it  is  only  neces- 
sary to  prove  that  there  was  misrepresentation;  then,  however  hon- 
estly it  may  have  been  made,  however  free  from  blame  the  person  who 
made  it,  the  contract,  having  been  obtained  by  misrepresentation,  can- 
not stand.  In  an  action  of  deceit,  on  the  contrary,  it  is  not  enough 
to  establish  misrepresentation  alone;  it  is  conceded  on  aU  hands  that 
something  more  must  be  proved  to  cast  liability  upon  the  defendant, 
though  it  has  been  a  matter  of  controversy  what  additional  elements 
are  requisite.  I  lay  stress  upon  this  because  observations  made  by 
learned  judges  in  actions  for  rescission  have  been  cited  and  much  re- 
lied upon  at  the  bar  by  coimsel  for  the  respondent.  Care  must  obvi- 
ously be  observed  in  applying  the  language  used  in  relation  to  such 
actions  to  an  action  of  deceit.  Even  if  the  scope  of  the  language  used 
extend  beyond  the  particular  action  which  was  being  dealt  with,  it 
must  be  remembered  that  the  learned  judges  were  not  engaged  in  de- 
termining what  is  necessary  to  support  an  action  of  deceit,  or  in 
discriminating  with  nicety  the  elements  which  enter  into  it. 

There  is  another  class  of  actions  which  I  must  refer  to  also  for  the 
purpose  of  putting  it  aside.  I  mean  those  cases  where  a  person  within 
whose  special  province  it  lay  to  know  a  particular  fact,  has  given  an 
erroneous  answer  to  an  inquiry  made  with  regard  to  it  by  a  person 
desirous  of  ascertaining  the  fact  for  the  purpose  of  determining  his 
course  accordingly,  and  has  been  held  bound  to  make  good  the  assur- 
ance he  has  given.  Burrowes  v.  Lock,  10  Ves.  470,  may  be  cited  as 
an  example,  where  a  trustee  had  been  asked  by  an  intended  lender, 
upon  the  security  of  a  trust  fund,  whether  notice  of  any  prior  incum- 
brance upon  the  fund  had  been  given  to  him.  In  cases  like  this  it  has 
been  said  that  the  circumstance  that  the  answer  was  honestly  made  in 
the  belief  that  it  was  true  affords  no  defence  to  the  action.    Lord  Sel- 


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568  DERRY  V.  PEEK  [CHAP.  IV. 

borne  pointed  out  in  Brownlie  v,  Campbell,  5  App.  Cas.  p.  935,  that 
these  cases  were  in  an  altogether  different  category  from  actions  to 
recover  damages  for  false  representation,  such  as  we  are  now  dealing 
with. 

One  other  observation  I  have  to  make  before  proceeding  to  consider 
the  law  which  has  been  laid  down  by  the  learned  judges  in  the  Court  of 
Appeal  in  the  case  before  your  Lordships.  "  An  action  of  deceit  is  a 
common-law  action,  and  must  be  decided  on  the  same  principles, 
whether  it  be  brought  in  the  Chancery  Division  or  any  of  the  Conunon 
Law  Divisions,  there  being,  in  my  opinion,  no  such  thing  as  an  equi- 
table action  for  deceit."  This  was  the  language  of  Cotton,  L.  J.,  in 
Arkwright  v.  Newbould,  17  Ch.  D.  320.  It  was  adopted  by  Lord 
Blackbiun  in  Smith  v.  Chadwick,  9  App.  Cas.  193,  and  is  not,  I  think, 
open  to  dispute. 

In  the  Court  below  Cotton,  L.  J.,  said:  "  What  in  my  opinion  is  a 
correct  statement  of  the  law  is  this,  that  where  a  man  makes  a  state- 
ment to  be  acted  upon  by  others  which  is  false,  and  which  is  known  by 
him  to  be  false,  or  is  made  by  him  recklessly,  or  without  care  whether 
it  is  true  or  false,  that  is,  without  any  reasonable  groimd  for  believing 
it  to  be  true,  he  is  liable  in  an  action  of  deceit  at  the  suit  of  any  one  to 
whom  it  was  addressed,  or  any  one  of  the  class  to  whom  it  was  ad- 
dressed, and  who  was  materially  induced  by  the  misstatement  to  do 
an  act  to  his  prejudice."  About  much  that  is  here  stated  there  cannot, 
I  think,  be  two  opinions.  But  when  the  learned  Lord  Justice  speaks 
of  a  statement  made  recklessly  or  without  care  whether  it  is  true  or 
false,  that  is,  without  any  reasonable  ground  for  believing  it  to  be  true, 
I  find  mjrself,  with  all  respect,  unable  to  agree  that  these  are  con- 
vertible expressions.  To  make  a  statement,  careless  whether  it  be  true 
or  false,  and  therefore  without  any  real  belief  in  its  truth,  appears  to 
me  to  be  an  essentially  different  thing  from  making,  through  want  of 
care,  a  false  statement,  which  is  nevertheless  honestly  believed  to  be 
true.  And  it  is  surely  conceivable  that  a  man  may  believe  that  what 
he  states  is  the  fact,  though  he  has  been  so  wanting  in  care  that  the 
Court  may  think  that  there  were  no  sufficient  groimds  to  warrant  his 
belief.  I  shall  have  to  consider  hereafter  whether  the  want  of  reason- 
able groimd  for  believing  the  statement  made  is  sufficient  to  support 
an  action  of  deceit.  I  am  only  concerned  for  the  moment  to  point  out 
that  it  does  not  follow  that  it  is  so,  because  there  is  authority  for  say- 
ing that  a  statement  made  recklessly,  without  caring  whether  it  be 
true  or  false,  affords  sufficient  foimdation  for  such  an  action. 

It  will  thus  be  seen  that  all  the  learned  judges  [in  the  Court  of  Ap- 
peal] concurred  in  thinking  that  it  was  sufficient  to  prove  that  the 
representations  made  were  not  in  accordance  with  fact,  and  that  the 
person  making  them  had  no  reasonable  ground  for  believing  them. 
They  did  not  treat  the  absence  of  such  reasonable  groimd  as  evidence 


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CHAP.  rV.]  DERRT  V.  PEEK  569 

merely  that  the  statements  were  made  recklessly,  careless  whether 
they  were  true  or  false,  and  without  belief  that  they  were  true,  but 
they  adopted  as  the  test  of  liability,  not  the  existence  of  belief  in  the 
truth  of  the  assertions  made,  but  whether  the  beUef  in  them  was 
founded  upon  any  reasonable  grounds.  It  will  be  seen,  further,  that 
the  Court  did  not  purport  to  be  establishing  any  new  doctrine.  They 
deemed  that  they  were  only  following, the  cases  already  decided,  and 
that  the  proposition  which  they  concurred  in  la3ring  down  was  estab- 
lished by  prior  authorities.  Indeed,  Lopes,  L.  J.,  expressly  states 
the  law  in  this  respect  to  be  well  settled.  This  renders  a  close  and 
critical  examination  of  the  earlier  authorities  necessary. 

Having  now  drawn  attention,  I  believe,  to  all  the  cases  having  a 
material  bearing  upon  the  question  under  consideration,  I  proceed  to 
state  briefly  the  conclusions  to  which  I  have  been  led.  I  think  the 
authorities  establish  the  following  propositions:  First,  in  order  to 
sustain  an  action  of  deceit  there  must  be  proof  of  fraud,  and  nothing 
short  of  that  will  suflSce.  Secondly,  fraud  is  proved  when  it  is  shown 
that  a  false  representation  has  been  made  (1)  knowingly,  or  (2)  with- 
out belief  in  its  truth,  or  (3)  recklessly,  careless  whether  it  be  true  or 
fake.  Although  I  have  treated  the  second  and  third  as  distinct  cases, 
I  think  the  third  is  but  an  instance  of  the  second,  for  one  who  makes 
a  statement  under  such  circumstances  can  have  no  real  belief  in  the 
truth  of  what  he  states.  To  prevent  a  false  statement  being  fraudulent 
there  must,  I  think,  alwa3rs  be  an  honest  belief  in  its  truth.  And  this 
probably  covers  the  whole  ground,  for  one  who  knowingly  alleges  that 
which  is  false  has  obviously  no  such  honest  belief.^  Thirdly,  if  fraud 
be  proved,  the  motive  of  the  person  guilty  of  it  is  inmiaterial.  It  mat- 
ters jiot  that  there  was  Ao  intention  to  cheat  or  injure  the  person  to 
whom  the  statement  was  made. 

I  think  these  propositions  embrace  all  that  can  be  supported  by 
decided  cases  from  the  time  of  Pasley  v.  Freeman,  2  Smith's  L.  C.  74, 
down  to  Western  Bank  of  Scotland  v.  Addie,  Law  Rep.  1  H.  L.  Sc. 
145,  in  1867,  when  the  first  suggestion  is  to  be  found  that  belief  in  the 
truth  of  what  he  has  stated  will  not  suflBce  to  absolve  the  defendant  if 
his  belief  be  based  on  no  reasonable  groimds.  I  have  shown  that  this 
view  was  at  once  dissented  from  by  Lord  Cranworth,  so  that  there  was 
at  the  outset  as  much  authority  against  it  as  for  it.  And  I  have  met 
with  no  further  assertion  of  Lord  Chelmsford's  view  until  the  case  of 
Weir  V.  Bell,  3  Ex.  D.  238,  where  it  seems  to  be  involved  in  Lord  Jus- 
tice Cotton's  enunciation  of  the  law  of  deceit.   But  no  reason  is  there 

1  "  Want  of  honest  belief  in  the  truth  of  what  one  asserts,  not  positive  Imowledge 
that  it  is  false,  is  the  essence  of  the  wrong.  A  man  who  loiows  that  he  is  making 
a  reckless  assertion  about  things  of  which  he  really  knows  nothing  may  not  be 
speaking  against  his  own  behef,  but  he  is  not  speaking  according  to  it,  and  there- 
fore his  conduct  is  dishonest,  and  is  esteemed  fraud  by  the  law."  PoUock,  Law  of 
Fraud  in  British  India,  43. 


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570  DERBY  V.  PEEK  [CHAP.  IV, 

given  in  support  of  the  view,  it  is  treated  as  established  law.  The 
dictum  of  the  late  Master  of  the  Rolls,  that  a  false  statement  made 
through  carelessness,  which  the  person  making  it  ought  to  have  known 
to  be  untrue,  would  sustain  an  action  of  deceit,  carried  the  matter  still 
further.  But  that  such  an  action  could  be  maintained  notwithstand- 
ing an  honest  belief  that  the  statement  made  was  true,  if  there  were  no 
reasonable  grounds  for  the  belief,  was,  I  think,  for  the  first  time  de- 
cided in  the  case  now  under  appeal. 

In  my  opinion  making  a  false  statement  through  want  of  care  falls 
far  short  of,  and  is  a  very  different  thing  from,  fraud,  and  the  same 
may  be  said  of  a  false  representation  honestly  beUeved  though  on  in- 
sufficient grounds.  Indeed  Cotton,  L.  J.,  himself  indicated,  in  the 
words  I  have  aheady  quoted,  that  he  should  not  call  it  fraud.  But  the 
whole  current  of  authorities,  with  which  I  have  so  long  detained  your 
Lordships,  shows  to  my  mind  conclusively  that  fraud  is  essential  to 
found  an  action  of  deceit,  and  that  it  cannot  be  maintained  where  the 
acts  proved  cannot  properly  be  so  termed.  And  the  case  of  Taylor  v. 
Ashton,  11  M.  &  W.  401,  appears  to  me  to  be  in  direct  conflict  with 
the  dictum  of  Sir  George  Jessel,  and  inconsistent  with  the  view  taken 
by  the  learned  judges  in  the  Court  below.  I  observe  that  Sir  Frederick 
Pollock,  in  his  able  work  on  Torts  (p.  243,  note),  referring,  I  presume, 
to  the  dicta  of  Cotton,  L.  J.,  and  Sir  George  Jessel,  M.  R.,  says  that 
the  actual  decision  in  Taylor  v.  Ashton,  11  M.  &  W.  401,  is  not  con- 
sistent with  the  modem  cases  on  the  duty  of  directors  of  companies. 
I  think  he  is  right.  But  for  the  reasons  I  have  given  I  am  unable  to 
hold  that  anything  less  than  fraud  will  render  directors  or  any  other 
persons  Uable  to  an  action  of  deceit. 

At  the  same  time  I  desire  to  say  distinctly  that  when  a  false  state- 
ment has  been  made  the  questions  whether  there  were  reasonable 
grounds  for  believing  it,  and  what  were  the  means  of  knowledge  in  the 
possession  of  the  person  making  it,  are  most  weighty  matters  for  con- 
sideration. The  ground  upon  which  an  alleged  beUef  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  founda- 
tion would  suffice  of  itself  to  convince  the  Court  that  it  was  not  really 
entertained,  and  that  the  representation  was  a  fraudulent  one.  So, 
too,  although  means  of  knowledge  are,  as  was  pointed  out  by  Lord 
Blackbm-n  in  Brownlie  v.  Campbell,  5  App.  Cas.  p.  952,  a  very  differ- 
ent thing  from  knowledge,  if  I  thought  that  a  person  making  a  false 
statement  had  shut  his  eyes  to  the  facts,  or  purposely  abstained  from 
inquiring  into  them  I  should  hold  that  honest  belief  was  absent,  and 
that  he  was  just  as  fraudulent  as  if  he  had  knowingly  stated  that 
which  was  false. 

I  have  arrived  with  some  reluctance  at  the  conclusion  to  which  I 
have  felt  myself  compelled,  for  I  think  those  who  put  before  the  public 
a  prospectus  to  induce  them  to  embark  their  money  in  a  commercial 


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CHAP.  IV.]  DERBY  V.  PEEK  571 

enterprise  ought  to  be  vigilant  to  see  that  it  contains  such  representa- 
tions only  as  are  in  strict  acordance  with  fact,  and  I  should  be  very- 
unwilling  to  give  any  countenance  to  the  contrary  idea.  I  think  there 
is  much  to  be  said  for  the  view  that  this  moral  duty  ought  to  some 
extent  to  be  converted  into  a  legal  obligation,  and  that  the  want  of 
reasonable  care  to  see  that  statements  made  under  such  circumstances 
are  true  should  be  made  an  actionable  wrong.  But  this  is  not  a  matter 
fit  for  discussion  on  the  present  occasion.  If  it  is  to  be  done  the  legis- 
lature must  intervene  and  expressly  give  a  right  of  action  in  respect  of 
such  a  departure  from  duty.  It  ought  not,  I  think,  to  be  done  by 
straining  tiie  law,  and  holding  that  to  be  fraudulent  which  the  tribimal 
feels  cannot  properly  be  so  described.  I  think  mischief  is  likely  to 
result  from  bliuring  the  distinction  between  carelessness  and  fraud, 
and  equally  holding  a  man  fraudulent  whether  his  acts  can  or  cannot 
be  justly  so  designated. 

It  now  remains  for  me  to  apply  what  I  believe  to  be  the  law  to  the 
facts  of  the  present  case.  [After  reviewing  the  evidence  of  each  de- 
fendant.] I  cannot  hold  it  proved  as  to  any  one  of  them  that  he 
knowingly  made  a  false  statement,  or  one  which  he  did  not  believe  to 
be  true,  or  was  careless  whether  what  he  stated  was  true  or  false.  In 
short,  I  think  they  honestly  believed  that  what  they  asserted  was  true,^ 
and  I  am  of  opinion  that  the  charge  of  fraud  made  against  them  has 
not  been  established.    [Remainder  of  opinion  omitted.]  * 

^  For  a  criticism  of  the  view  that  the  directors  all  believed  the  statement,  see 

6  Law  Quarterly  Rev.  73;  5  Law  Quarterly  Rev.  420-422. 

*  Schuchardt  v.  Aliens,  1  Wall.  359;  Union  R.  Co.  v.  Barnes,  (C.  C.  A.)  64  Fed. 
80;  Pitteburgh  Life  &  Trust  Co.  v.  Northern  Life  Ins.  Co.,  (C.  C.  A.)  148  Fed.  674; 
Foster  v.  Kennedy,  38  Ala.  359;  Morton  v.  Scull.  23  Ark.  289;  Hutchinson  v.  Gor- 
man; 71  Ark.  305;  Davidson  v.  Jordan,  47  Cal.  351;  Bartholomew  v,  Bushnell,  20 
Conn.  271:  Fooks  v.  Waples,  1  Har.  (Del.)  131;  Manes  v,  Kenyon,  18  Ga.  291; 
Cooley  V.  King,  113  Ga.  1163;  Wheeler  v.  Randall,  48  lU.  182;  Hofdom  v.  Ayer, 
110  ID.  448:  Herman  v.  Foster,  185  HI.  App.  97;  Holmes  v.  Clark,  10  la.  423; 
Scroggin  v.  Wood,  87  la.  497;  Boddy  v.  Henry,  113  la.  462;  Farmers'  Stock  Breed- 
ing Ass'n  V.  Scott,  53  Kan.  534;  Campbell  v.  Hillman,  15  B.  Mon.  508:  Haynes  v. 
Gould,  83  Me.  344;  Cahill  v.  Applegarth,  98  Md.  493:  Emerson  v.  Brigham,  10 
Mass.  197;  Pike  v.  Fay,  101  Mass.  134;  Cole  v,  Cassidy.  138  Mass.  437;  Hoist 
V.  Stewart,  154  Mass.  445;  Lillegren  v.  Bums,  135  Minn.  60;  Taylor  v.  Frost.  39 
Miss.  328;  Utley  v.  Hill,  155  MS.  232;  Allen  v,  Wanamaker,  31  N.  J.  Law,  370; 
Williams  v.  Wood,  14  Wend.  126;  Marsh  v,  Folker,  40  N.  Y.  562:  Wakeman  v. 
Dalley,  51  N.  Y.  27;  Kountze  v.  Kennedy,  147  N.  Y.  124;  Hamrick  v.  Ho^,  1 
Dev.  350;  Taylor  v.  Leith,  26  Ohio  St.  428;  Staines  v.  Shore,  16  Pa.  St.  200;  Erie 
lion  Works  v.  Barber,  106  Pa.  St.  125;  Lamberton  v,  Dimham,  165  Pa.  St.  129; 
Deppen  v.  Light,  228  Pa.  St;  79;  Gibbsv.  Odell,  2  Cold.  132;  Weeks  v.  Burton, 

7  Vt.  67  Accord. 

In  Heilbut  v,  Buckleton,  [1913]  A.  C.  30,  Lord  Moulton  said  (p.  48):  "  In  the 
history  of  English  law  we  find  many  attempts  to  make  persons  responsible  in  dam- 
ages by  reason  of  innocent  misrepresentations,  and  at  times  it  has  seemed  as 
though  the  attempts  would  succeed.  On  the  Cnancery  side  of  the  Court  the  de- 
cisions favoring  tms  view  usually  took  the  form  of  extending  the  scope  of  the  action 
for  deceit.  There  was  a  tendency  to  recognize  the  existence  of  what  was  sometimes 
called  '  legal  fraud,'  i.  e.,  that  the  making  of  an  incorrect  statement  of  fact  ^^ithout 
reasonable  grounds,  or  of  one  which  was  inconsistent  with  information  which  the 
person  had  received  or  had  the  means  of  obtaining,  entailed  the  same  legal  con- 
sequences as  making  it  fraudulently.   Such  a  doctrine  would  make  a  man  liable  for 


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572  NASH  V.  MINNESOTA  TITLE   &  TRUST  CO.      [CHAP.  IV. 

Holmes,  J.,  dissenting  in  NASH  v.  MINNESOTA  TITLE  & 
TRUST  COMPANY 

(1895)  163  MassachuaeUs  674,  586-687. 

If  I  were  making  the  law,  I  should  not  hold  a  man  answerable  for  represen- 
tations made  in  the  common  affairs  of  life  without  bad  faith  in  some  sense,  if 
no  consideration  was  given  for  them,  although  it  would  be  hard  to  reconcile 
even  that  proposition  with  some  of  our  cases.  But  the  proposition,  even  if 
accepted,  seems  to  me  not  to  apply  to  this  case.   The  proper  meaning  of  the 

f orgetf ulness  or  mistake  or  even  for  honestly  interpreting  the  facts  known  to  him 
or  drawing  conclusions  from  them  in  a  way  which  the  Court  did  not  think  to  be 
legally  warranted.  The  high-water  mark  of  these  decisions  is  to  be  found  in  the 
judffment  pronounced  by  the  Court  of  Appeal  in  the  case  of  Peek  v.  Deny,  (1887) 
37  Ch.  D.  641 ;  (1889)  14  App.  Cas.  337,  when  they  laid  down  that  where  a  defend- 
ant has  made  a  misstatement  of  fact  and  the  Court  is  of  opinion  that  he  had  no 
reasonable  grounds  for  believing  that  it  was  true  he  may  be  made  liable  in  an 
action  of  deceit  if  it  has  materially  tended  to  induce  the  plaintiff  to  do  an  act  b^ 
which  he  has  incurred  damage.  But  on  appeal  to  your  Lordships'  House  this 
decision  was  unanimousl^r  reversed^  and  it  was  definiteljr  laid  down  that,  in  order 
to  establish  a  cause  of  action  soundmg  in  damages  for  misrepresentation,  the  state- 
ment must  be  fraudulent  or,  what  is  equivalent  thereto,  must  be  made  recklessly, 
not  caring  whether  it  be  true  or  not.  The  opinions  pronounced  in  your  Lordships 
House  in  that  case  show  that  both  in  substance  and  in  form  the  decision  was,  and 
was  intended  to  be,  a  reaffirmation  of  the  old  common  law  doctrine  that  actual 
fraud  was  essential  to  an  action  for  deceit,  and  it  finally  settled  the  law  that  an 
innocent  misrepresentation  ^ves  no  right  of  action  sounding  in  damages. 

''  On  the  Common  Law  side  of  the  Court  the  attempts  to  make  a  person  liable 
for  an  innocent  misrepresentation  have  usually  taken  the  form  of  attempts  to 
extend  the  doctrine  of  warranty  beyond  its  just  limits  and  to  find  that  a  warranty 
existed  in  cases  where  there  was  nothing  more  than  an  innocent  misrepresentation. 
The  present  case  is,  in  my  opinion,  an  instance  of  this.  But  in  respect  of  the  ques- 
tion of  the  existence  of  a  warranty  the  Courts  have  had  the  advantage  of  an 
admirable  enunciation  of  the  true  principle  of  law  which  was  made  in  very  early 
days  by  Holt,  C.  J.,  with  respect  to  the  contract  of  sale.  He  says:  'An  affinnation 
at  the  time  of  the  sale  is  a  warranty,  provided  it  appear  on  evidence  to  be  so  in- 
tended.' So  far  as  decisions  are  concerned,  this  has.  on  the  whole,  been  consist- 
ently followed  in  the  Courts  of  Common  Law.  But  from  time  to  time  there  have 
been  dicta  inconsistent  with  it  which  have,  unfortimately,  found  their  way  into 
text-books  and  have  given  rise  to  confusion  and  imcertainty  in  this  branch  of  the 
law.  For  example,  one  often  sees  cjuoted  the  dictum  of  Bayley,  J.,  in  Cave  v. 
Coleman,  3  Man.  &  Ry.  2,  where,  in  respect  of  a  representation  made  verbally 
during  the  sale  of  a  horse,  he  says  that '  being  made  in  the  course  of  a  dealing,  and 
before  the  bargain  was  complete,  it  amounted  to  a  warranty '  —  a  proposition 
that  is  far  too  sweeping  and  cannot  be  supported.  A  still  more  serious  deviation 
from  the  correct  principle  is  to  be  found  in  a  passage  in  the  judgment  of  the  Court 
of  Appeal  in  DeLassalle  v.  Guildford,  [1901]  2  K.  B.  215,  at  p.  221,  which  was  cited 
to  us  in  the  argument  in  the  present  case.  In  discussing  the  question  whether  a 
representation  amounts  to  a  warranty  or  not  the  judgment  says:  *  In  determining 
whether  it  was  so  intended,  a  decisive  test  is  whether  the  vendor  assumes  to  assert 
a  fact  of  which  the  buyer  is  ignorant,  or  merely  states  an  opinion  or  judgment 
upon  a  matter  of  which  the  vendor  has  no  special  knowledge,  and  on  which  the 
buyer  may  be  expected  also  to  have  an  opinion  and  to  exercise  his  judgment.' 

"  With  all  deference  to  the  authority  of  the  Court  that  decided  that  case,  the 
proposition  which  it  thus  formulates  cannot  be  supported.  It  is  clear  that  the 
Court  did  not  intend  to  depart  from  the  law  laid  down  by  Holt,  C.  J.,  and  cited 
above,  for  in  the  same  iud^ent  that  dictum  is  referred  to  and  accepted  as  a  cor- 
rect statement  of  the  law.  It  is,  therefore,  evident  that  the  use  of  the  phrase 
'  decisive  test '  cannot  be  defended.  Otherwise  it  would  be  the  duty  of  a  judge  to 
direct  a  jury  that  if  a  vendor  states  a  fact  of  which  the  buyer  is  ignorant,  they 
must^  as  a  matter  of  law.  find  the  existence  of  a  warranty,  whether  or  not  the 
totahty  of  the  evidence  snows  that  the  parties  intended  the  affirmation  to  form 


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CHAP.  IV.]     NASH  V.  MINNESOTA  TITLE   &  TRUST  CO.  573 

words  used  by  the  defendant  has  been  settled  by  this  court  abeady.  159 
Mass.  437.  The  representation  was  not  piade  in  casual  talk,  but  in  a  business 
matter,  for  the  very  purpose  of  inducing  others  to  lay  out  their  money  on  the 
faith  of  it.  When  a  man  makes  such  a  representation,  he  knows  that  others 
will  understand  his  words  according  to  their  usual  and  proper  meaning,  and 
not  by  the  accident  of  what  he  happens  to  have  in  his  head,  and  it  seems  to 

part  of  the  contract;  and  this  would  be  inconsistent  with  the  law  as  laid  down  by 
Holt,  C.  J.  It  may  well  be  that  the  features  thus  referred  to  in  the  jud^ent  of  the 
Court  of  Appeal  in  that  case  may  be  criteria  of  value  in  guiding  a  jury  m  coming  to 
a  decision  whether  or  not  a  warranty  was  intended;  but  they  cannot  be  said  to 
furnish  decisive  tests,  because  it  cannot  be  said  as  a  matter  of  law  that  the  presence 
or  absence  of  those  features  is  conclusive  of  the  intention  of  the  parties.  The 
intention  of  the  parties  can  only  be  deduced  from  the  totality  of  the  evidence,  and 
no  secondary  prmciples  of  such  a  kind  can  be  universally  true. 

"  It  is,  my  Lords,  of  the  greatest  importance,  in  my  opinion,  that  this  House 
should  maintain  in  its  full  integrity  the  principle  that  a  person  is  not  liable  in 
damages  for  an  innocent  misrepresentation,  no  matter  in  what  way  or  under  what 
form  the  attack  is  made.  In  the  present  case  the  statement  was  made  in  answer  to 
an  inquiry  for  information.  There  is  nothing  which  can  by  any  possibility  be  taken 
as  evidence  of  an  intention  on  the  part  of  either  or  both  of  the  parties  that  there 
should  be  a  contractual  liabilitv  in  respect  of  the  accuracy  of  the  statement.  It  is 
a  representation  as  to  a  specific  thing  and  nothing  more.  The  judge,  therefore, 
ought  not  to  have  left  the  question  of  warranty  to  the  jury,  and  if ,  as  a  matter  oi 
prudence,  he  did  so  in  order  to  obtain  their  opinion  in  case  of  appeal  he  ought  then 
to  have  entered  judgment  for  the  defendants  notwithstanding  the  verdict." 

But  compare  Kirkpatrick  v.  Reeves,  121  Ind.  280;  Mendenhall  v,  Stewart,  18 
Ind.  App.  262-  McLeod  v.  Tutt,  2  Miss.  288;  Searing  t;.  Lum,  2  South,  683;  In- 
dianapolis R.  Co.  V.  Tyng,  63  N.  Y.  653;  Cobb  v.  Fogalman,  1  Ired.  440;  Mason  v. 
Moore,  73  Ohio  St.  276;  Loper  v,  Robinson,  64  Tex.  510;  Magill  v.  Coffmann, 
(Tex.  Civ.  App.)  129  S.  W.  1146;  Smith  v.  Columbus  Buggy  Co.,  40  Utah,  580; 
Ogden  Resort  Co.  v.  Lewis,  41  Utah,  183;  Cameron  v.  Mount,  86  Wis.  477; 
Palmer  v.  Goldberg,  128  Wis.  103;  Knudson  v.  George,  157  Wis.  620. 

As  to  whether  an  action  ought  not  to  be  allowed  for  negligence  in  the  use  of 
language,  see  Smith,  Liability  for  Negligent  Language,  14  Harvard  Law  Rev.  184; 
Cunningham  v.  Pease,  74  N.  H.  435;  Conway  National  Bank  t;.  Pease,  76  N.  H. 
319.  The  English  Directors'  Liability  Act  J1890J,  53  A  64  Vict.  c.  64,  makes 
directors  and  others  who  issue  prospectuses  liable  m  certain  cases  to  compensate 
persons  sustaining  4oes  by  reason  of  any  untrue  statement  in  the  prospectus,  unless 
it  is  proved  that  the  persons  issuing  the  prospectus  had  reasonable  ground  to 
believe  and  did  believe  that  the  prospectus  was  true.  See  also  the  statute  of 
Oklahoma,  Howe  v.  Martin,  23  Okl.  561,  667. 

lAability  for  statement  made  recklessly  not  knowing  whether  true  or  not.  see: 
Cooper  V.  Schlesinger,  111  U.  S.  148;  Hindman  v.  First  National  Bank,  (C.  C.  A.) 
112  Fed.  931;  Mueller  Furnace  Co.  v.  Cascade  Foundry  Co.,  145  Fed.  696;  Ein- 
stein V.  Marshall,  58  Ala.  153;  McCoy  v.  Prince.  11  Ala.  App.  388;  Stimson  v. 
Helps,  9  Col.  33;  Scholfield  Gear  Co.  v.  Scholfield,  71  Conn.  1;  Upchurch  r. 
Mizell,  50  Fla.  466;  Corbett  v.  Gilbert,  24  Ga.  454;  MiUer  t;.  John,  208  HI.  173; 
Snively  v.  Meixsell,  97  HI.  App.  365;  West  v,  Wright,  98  Ind.  335;  Graves  r. 
Lebanon  Bank,  10  Bush,  23;  Stone  v.  Denny,  4  Met.  151;  Fisher  v,  Mellen,  103 
Mass.  503;  Beebe  v.  Knapp.  28  Mich.  53;  Stone  v.  Covell,  29  Mich.  359;  Bullitt 
V.  Farrar.  42  Minn.  8;  Hamlin  v.  AbelL120  Mo.  188;  Chase  v.  Rusk,  90  Mo.  App. 
25;  Ruddy  v.  Gunby,  (Mo.)  180  S.  W.  1043;  RoweU  v.  Chase,  61  N.  H.  135; 
Shackett  v.  Bickford,  74  N.  H.  57;  Zabriskie  v.  Smith,  13  N.  Y.  322;  Bennett  v. 
Judson,  21  N.  Y.  238;  Taylor  t;.  Commercial  Bank,  174  N.  Y.  181;  Bell  v.  James, 
128  App.  Div.  241;  Whitehurst  v.  Life  Ins.  Co.,  149  N.  C.  273;  Cawston  v. 
Stiu^,  29  Or.  331 ;  Robertson  v,  Frey,  72  Or.  699;  Thompson  v.  Chambers.  13  Pa. 
Super.  Ct.  213;  Mitchell  v.  Zimmerman,  4  Tex.  75:  Katsenstein  v,  Reid,  Murdock 
A  Co.j41  Tex.  Civ.  App.  106;  Benton  v.  Kuvkendall,  (Tex.  Civ.  App.)  160  S.  W. 
438;  Wheeler  v.  Wheelock,  34  Vt.  563;  Agnew  r.  Hackett,  80  Wash.  236;  Cota- 
hausen  v.  Simon,  47  Wis.  103. 

Compare  Ray  County  Bank  v.  Hutton,  224  Mo.  42;  Ramsey  v,  Wallace,  100 
N.  C.  75. 


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574  SLATER  TRUST  CO.  V.  GARDINER  [CHAP.  IV. 

me  one  of  the  first  principles  of  social  intercourse  that  he  is  bound  at  his 
peril  to  know  what  that  meaning  is.  In  this  respect  it  seems  to  me  that  there 
is  no  difference  between  the  law  of  fraud  and  that  of  other  torts,  or  of  contract 
or  estoppel.  If  the  language  of  fiction  be  preferred,  a  man  is  conclusively 
presumed  in  all  parts  of  the  law  to  contemplate  the  natural  consequences  of 
his  act,  as  well  in  the  conduct  of  others  as  in  mechanical  results.  I  can  see 
no  difference  in  principle  between  an  invitation  by  words  and  an  invitation  by 
other  acts,  such  as  opening  the  gates  of  a  railroad  crossing  (Brow  v.  Boston  & 
Albany  Railroad,  157  Mass.  399),  or  an  intentional  gesture,  having  as  its 
manifest  consequence,  according  to  common  experience,  a  start  and  a  fall 
on  the  part  of  the  person  toward  whom  it  is  directed,  in  either  of  which  cases 
I  suppose  no  one  would  say  that  a  defendant  could  get  off  by  proving  that 
he  did  not  anticipate  the  natural  interpretation  of  the  sign.  Of  course,  if  the 
words  used  are  technical,  or  have  a  peculiar  meaning  in  the  place  where  they 
were  used,  this  can  be  rfiown;  if  by  the  context,  or  the  subject  matter,  or 
the  circumstances,  the  customary  meaning  of  the  words  is  modified,  this  can 
be  shown  by  proof  of  the  circumstances,  the  subject  matter,  and  the  context; 
but  when  none  of  these  things  appears,  a  defendant  cannot  be  heard  to  say 
that  for  some  undisclosed  reason  he  had  in  his  mind,  and  intended  to  express 
by  the  words,  something  different  from  what  the  words  appear  to  mean,  and 
were  imderstood  by  the  plaintiff  to  mean,  and  are  interpreted  by  the  court  to 
mean,  whether  the  action  be  in  tort  or  contract. 

Neither,  in  my  opinion,  are  there  any  peculiar  safeguards  set  up  about  the 
action  for  deceit.  That  action  was  given  by  the  common  law  for  any  false 
statement  of  present  facts  of  which  the  defendant  took  the  risk,  and  which 
was  followed  by  damage.  He  might  take  the  risk  at  different  points  in  dif- 
ferent cases.  A  false  warranty  used  to  be  laid  as  a  deceit  in  tort  for  a  false 
and  fraudulent  representation.  Clift,  Entries,  932,  pi.  40.  Liber  Placitandi, 
40,  pi.  54, 55.  Y.  B.  llEd.  rV.pl.  10.  So  even  an  impHed  warranty.  Brown 
V.  Edgington,  2  Man.  &  G.  279.  See  Y.  B.  11  Ed.  IV.  6  b;  Keilw.  91,  pi.  16. 
Yet  it  was  not  necessary  to  lay  the  scienter,  or  if  you  laid  it,  to  prove  it,  for 
the  plain  reason,  as  Shaw,  C.  J.,  puts  it,  in  substance,  that  the  defendant  is 
answerable  for  the  facts,  however  honest  he  may  have  been.  Norton  v.  Do- 
herty,  3  Gray,  372, 373.  Schuchardt  v.  Aliens,  1  Wall.  359, 368.  Williamson 
V.  AUison,  2  East,  446.  Gresham  v.  Postan,  2  C.  &  P.  540.  Denison  v,  Ralph- 
son,  1  Vent.  365,  366.  In  the  last  centiuy  an  alternative  form  in  assumpsit 
was  introduced  (Stuart  v.  Wilkins,  1  Doug.  18, 21,  Lawrence,  J.,  and  William- 
son V.  Allison,  2  East,  446, 451),  and  it  may  be  that  now  we  should  require  the 
warranty  to  be  alleged,  which  has  the  advantage  of  telling  the  defendant  more 
exactly  what  the  case  is  against  him.  Cooper  v,  Landon,  102  Mass.  58.  But 
there  is  no  doubt  about  the  common  law.  I  am  of  opinion,  as  I  have  stated, 
that  in  a  case  like  the  present  a  man  takes  the  risk  of  the  interpretation  of 
his  words  as  it  may  afterwards  be  settled  by  the  court. 


Hand,  J.,  in  SLATER  TRUST  COMPANY  v.  GARDINER 

(1910)  183  Federal  Reporter,  268,  270-271. 

At  the  outset  the  character  of  the  mistake  must  be  observed.  Gardiner 
knew  the  facts,  but  he  did  not  know  the  meaning  of  the  words.  Although  the 
great  weight  of  authority  is  to  the  contrary  (Derry  v.  Peek,  14  App.  Cas. 


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CHAP.  IV.]  SLATER  TRUST  CO,  V.  GARDINER  576 

837))  I  may  assume  for  the  purposes  of  this  case  that  a  man  may  be  respon- 
sible for  his  uttered  false  words,  even  when  he  believes  them  to  be  true. 

Such  authorities  as  hold  to  this  rule  regard  the  uttered  word  as  the  cause 
of  the  damage,  which,  of  course,  it  is,  and  they  hold  that  a  man,  by  speaking 
or  writing  words  on  which  he  knows  others  will  rely,  must  be  held  to  their 
truth  quite  as  much  as  though  he  made  a  promise  (Mr.  Justice  Holmes,  dis- 
sentiente,  Nash  v,  Minnesota  Title  Co.,  163  Mass.  574,  40  N.  E.  1039,  28 
L.  R.  A.  753,  47  Am.  St.  Rep.  489;  Pollock  on  Torts,  [6th  Ed.]  page  283). 
But  these  authorities,  which  regard  the  word  as  the  tortious  act,  certainly 
should  not,  in  analogy  with  the  other  law  of  torts,  be  supposed  to  mean  that  a 
man  should  be  responsible  for  the  remote  results  of  his  words.  The  extent  of 
his  responsibility,  indeed,  ought  to  be  limited,  as  it  is  in  other  torts,  to  those 
matters  which  would  come  within  the  foresight  of  the  hypothetical  reasonable 
man.  With  remoter  damage  it  is  as  unjust  to  charge  the  words  of  his  mouth 
as  the  movements  of  his  legs  or  arms.  Although  they  do  not  in  these  words 
indicate  the  distinction,  I  think  that  this  is  the  explanation  of  such  of  the 
cases  as  make  negligence  the  test,  and  of  these  there  are  a  number. 

If  Gardiner  was  responsible  for  the  words  he  uttered,  regardless  of  scienter, 
at  least  he  was  not  responsible  for  such  consequences  as  no  man  could  avoid 
with  the  use  of  reasonable  care.  What  happened  in  spite  of  the  exercise  of 
such  care  was  remote,  within  all  the  analogies  of  the  law  of  torts.  "  Causa 
proxima  non  remota  spectatur."  Nor  does  it  make  any  difference  that  it  was 
in  respect  of  the  meaning  of  his  words  that  he  was  mistaken.  The  utterance 
of  a  word  is  one  thing;  its  eventual  interpretation  by  a  reader  is  another,  and 
is  as  much  the  external  consequence  of  its  utterance  as  anything  else.  A  given 
interpretation,  even  a  legal  one,  may  be,  from  the  point  of  view  of  the  original 
utterer,  so  remote  a  consequence  that  no  one  ought  in  justice  to  be  held  ac- 
coimtable  for  it.  For  example,  in  the  case  at  bar,  if  Gardiner  did  all  a  lay- 
man could  do  to  get  the  facts  set  down  correctly,  the  interpretation  that  J.  T. 
Woodward  put  on  the  words  Gardiner  was  not  boimd  to  anticipate,  not  even 
if  it  was  the  right  one. 

The  authorities  do  not  make  any  distinction  between  the  discrepancy  of  the 
statement  with  the  facts  stated  and  the  discrepancy  of  the  statement  with  its 
subsequent  interpretation.  Thus  in  Deny  v.  Peek,  14  App.  Cas.  337,  it  ap- 
peared that  the  directors  who  issued  the  prospectus  knew  all  the  facts  and 
trusted  their  solicitors  to  prepare  the  statement  correctly  (see  Lord  Bram- 
well's  judgment,  page  348);  their  misstatement  was  in  calling  the  franchise 
absolute  which  was  in  fact  conditional.  This  statement  they  successfully  jus- 
tified, because  they  regarded  the  condition  attached  to  the  franchise  as 
practically  certain  of  fulfilment  and  the  statement  really  truthful  (Lord 
Herschell's  Judgment,  pages  378, 379).  The  point  is  that  the  error  was  in  sup- 
posing that  the  facts  which  they  knew  were  correctly  set  forth  in  the  state- 
ment. A  similar  case,  where  the  exact  point  was  passed  on  by  the  Supreme 
Court  of  Massachusetts,  is  Nash  v.  Minnesota  Title  Co.,  163  Mass.  574, 40  N. 
E.  1039,  28  L.  R.  A.  753,  47  Am.  St.  Rep.  489,  the  dissent  in  which  I  have 
akeady  mentioned.  But  that  dissent  proceeds  upon  the  theory  that  no 
scienter  is  ever  necessary  in  an  action  for  deceit. 


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576  ALDRICH  V.  SCRIBNER  [CHAP.  IV. 


Carpenter,  J.,  in  ALDRICH  v.  SCRffiNER 

(1908)  154  Michigan,  23. 

Holcomb  V,  Noble,  69  Mich.  396,  37  N.  W.  497,  is  also  in  point.  There  de- 
fendant and  plaintiff  exchanged  lands.  In  making  this  exchange  plaintiff 
relied  on  certain  representations  of  fact  respecting  the  pine  on  the  land  trans- 
ferred to  him  by  defendant.  These  representations  were  based  —  and  this 
was  understood  by  plaintiff  —  upon  the  reports  of  a  land  looker,  and  defend- 
ant told  plaintiff ''  that  all  he  knew  about  the  land  was  what  he  learned  from 
the  land  looker."  Defendant  believed  these  representations  to  be  true.  They 
were  in  fact  false,  and  plaintiff  sustained  damages  by  his  reliance  thereon. 
An  action  of  fraud  was  brought,  and  it  was  held  that  plaintiff  could  recover. 
There  were  two  opinions  in  the  case,  one  written  by  Justice  Campbell  and 
concurred  in  by  Justice  Champlin,  one  written  by  Justice  Morse  and  con- 
curred in  by  Chief  Justice  Sherwood.  In  the  opinion  of  Justice  Campbell  it 
is  said:  **  It  is  admitted  that  in  equity  an  actual  design  to  mislead  is  not 
necessary  if  a  party  is  actually  misled  by  another  in  a  bargain.  There  was 
abundant  evidence  in  this  case  to  authorize  the  jury  to  find  that  defendant, 
whether  honestly  or  dishonestly,  expected  plaintiff  to  act  on  his  representa- 
tions of  the  reliableness  of  the  reports  which  he  produced,  and  that  plaintiff 
did  rely  on  them.  There  is  no  reason  for  a  difference  in  action,  in  such  cases, 
between  courts  of  law  and  courts  of  equity.  Where  an  equitable  cause  of 
grievance  exists,  it  in  no  way  differs  from  a  legal  one,  unless  a  different  remedy 
is  needed.  A  court  of  law  cannot  cancel  a  contract,  and  for  such  a  purpose  the 
equitable  remedy  must  be  sought.  But  where  the  relief  desired  is  compensa- 
tion for  the  wrong,  the  equitable  remedy  is  much  less  appropriate,  and  an  ac- 
tion in  equity  for  mere  damages  will  generally  be  denied,  but  denied  only 
because  the  legal  remedy  is  better.  If  there  could  be  no  legal  remedy,  there 
can  be  no  doubt  that  equity  would  act.  If  the  fraud  is  such  that  it  creates  a 
right  of  action  anywhere,  an  action  must  lie  on  the  case  where  a  money  judg- 
ment is  needed."  I  now  quote  from  the  opinion  of  Justice  Morse,  concurred  in 
by  Chief  Justice  Sherwood:  "  I  was  strongly  impressed,  upon  the  argument 
of  this  case,  with  the  theory  of  the  defendant,  supported  by  abundant  author- 
ity outside  of  our  own  state,  that  unless  the  jiuy  found  that  the  representa- 
tions relied  upon  by  the  plaintiff  as  false  were  made  by  the  defendant.  Noble, 
knowing  them  to  be  false,  or  he  made  the  statements  as  facts  within  his  own 
knowledge,  when  he  was  ignorant  of  the  truth  or  falsity  of  them,  he  could 
not  be  held  liable  in  this  action;  that  if  he  told  plaintiff  that  he  had  never 
seen  the  lands,  but  that  he  had  had  the  same  examined  by  a  competent  land 
looker,  who  said  that  there  were  5,000,000  feet  of  pine  on  the  land,  and  made 
no  representations  as  of  his  own  knowledge,  the  plaintiff  could  not  recover. 
A  subsequent  careful  examination  of  the  case  and  the  authorities  cited  by 
defendant's  counsel  has  but  confirmed  me  in  the  correctness  and  justness  of 
his  claim.  I  am  satisfied  that  the  law  ought  not  to  make  a  different  contract 
for  the  seller  than  he  sees  fit  to  make  for  himself,  and  hold  him  in  effect,  for 
warranties  that  he  never  made.  But  an  equally  careful  examination  of  the 
cases  adjudicated  in  this  state  satisfies  me  that  the  doctrine  is  settled  here,  by 
a  long  line  of  cases,  that  if  there  was  in  fact  a  misrepresentation,  though 
made  innocently,  and  its  deceptive  influence  was  effective,  the  consequences  to 
the  plaintiff  being  as  serious  as  though  it  had  proceeded  from  a  vicious  pur- 


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CHAP.  IV.]  ALDRICH  V,  SCRIBNER  577 

pose,  he  would  have  a  right  of  action  for  the  damages  caused  thereby  either  at 
law  or  in  equity.  Baughman  v.  Gould,  45  Mich.  483,  8  N.  W.  73;  Converse 
V.  Blumrich,  14  Mich.  109,  90  Am.  Dec.  230;  Steinbach  v.  Hill,  25  Mich.  78; 
Webster  v,  Bailey,  31  Mich.  36;  Starkweather  v.  Benjamin,  32  Mich.  305; 
Beebe  v.  Knapp,  28  Mich.  53.''  I  think  these  decisions  are  indistinguishable 
from  the  case  at  bar,  and  require  us  to  say  that  the  trial  court  erred  in 
directing  a  verdict  for  the  defendant.  The  Busch  Case  and  the  Holcomb  Case 
cannot  be  distinguished  from  the  case  under  consideraSonT3y  saying  that  in 
them  "  the  principal  adopted  the  agent's  estimate  as  his  own."  For  in  this 
case,  as  heretofore  stated,  defendant  asserted  to  plaintiff  "  that  those  repre- 
sentations Barnard  had  made  were  true."  It  might  therefore  be  said  in  this 
case,  then,  the  principal  adopted  the  agent's  estimate  as  his  own. 

Our  attention  is  called  to  Krause  v.  Cook,  144  Mich.  365,  108  N,  W.  81. 
There  defendant,  acting  for  one  Parker,  sold  mining  stock  to  the  plaintiff. 
Certain  false  representations  were  made,  and  an  action  to  recover  damages  for 
fraud  was  brought.  It  was  held  that  the  trial  court  should  have  given  the 
following  instruction:  '^  If  a  person  received  information  from  others,  and  be- 
lieves it,  repeats  it,  explaining  that  he  has  no  personal  knowledge,  he  is  not 
guilty  of  fraud.  Therefore,  if  you  find  that  the  defendant  received  informa- 
tion from  others,  and  repeated  that  information  to  plaintiff,  and  explained  to 
plaintiff  the  sources  of  his  information,  he  is  not  guilty  of  any  fraud,  if  he 
acts  honestly  and  in  good  faith."  At  first  blush  it  would  seem,  that  this  prin- 
ciple is  opposed  to  the  decisions  of  Holcomb  v.  Noble  and  Busch  v.  WOoox, 
supra.  And  it  must  be  admitted,  I  think,  that  if  this  principle  had  been  ap- 
plied in  those  cases,  a  different  conclusion  would  there  have  been  reached.  If 
there  was  no  difference  ip  the  facts,  it  might  be  said  that  Krause  v.  Cook, 
supra  J  is  opposed  to  the  principle  announced  in  the  Busch  and  Holcomb  Cases. 
But  there  is  a  difference  in  the  cases,  and,  in  my  judgment,  such  a  difference 
as  to  require  a  different  rule  of  law.  In  the  Holcomb  and  Busch  Cases  the 
defendant  himself  obtained  what  plaintiff  lost  by  means  of  the  false  represen- 
tations. In  the  Krause  Case  the  defendant  was  an  agent,  who  at  most  re- 
ceived only  10  per  cent  of  the  damages  caused  by  the  false  representations. 
This  difference,  in  my  judgment,  places  the  Krause  Case  outside  the  rule  of 
the  Holcomb  and  Busch  Cases.  That  rule  is  peculiarly  a  Michigan  rule. 
Elsewhere  in  order  to  create  liability  for  deceit,  it  must  be  shown  that  "  the 
person  making  the  statement,  or  the  person  responsible  for  it,  either  knows  it 
to  be  untrue,  or  is  culpably  ignorant  (that  is,  recklessly  and  consciously 
ignorant)  whether  it  be  true  or  not."  See  Webb's  Pollock  on  Torts,  p.  355.  In 
Michigan  we  have  held  (see  cases  cited  in  the  opinion  of  Justice  Morse  in  the 
Holcomb  Case,  supra)  that  in  order  to  constitute  a  fraud  it  is  not  necessary 
that  the  person  making  the  statement  should  either  know  that  it  is  untrue  or 
be  reckl^sly  and  consciously  ignorant  whether  it  be  true  or  not.  It  is  suffi- 
cient if  it  be  false  in  fact.  It  must  be  said,  however,  that  in  the  cases  in  which 
this  principle  has  been  applied  the  defendant  obtained  what  the  false  repre- 
sentations caused  the  plaintiff  to  lose.  Applied  in  such  cases,  the  principle  is  a 
just  and  salutary  one.  This  may  be  illustrated  by  the  Holcomb  Case  —  which 
is  a  typical  case.  There,  because  plaintiff  Holcomb  credited  a  certain  false 
statement  of  fact,  he  paid  defendant  Noble  more  for  land  purchased  than 
otherwise  he  would  have  paid.  The  false  statement  of  fact  was  an  agency 
whereby  the  property  of  the  plaintiff  was  transferred  to  defendant.  The  law 
would  be  justly  subject  to  reproach  if  it  afforded  no  redress  in  such  case.   In 


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578  NOCTON  V.  LORD  ASHBURTON  [CHAP.  IV. 

Michigan  the  law  does  give  redress  in  such  a  case,  and  that  redress  may  be  ob- 
tained in  an  action  for  fraud.  It  may  seem  somewhat  unjust  to  characterize 
such  conduct  as  fraudulent,  but  the  court  was  apparently  placed  in  the 
dilemma  of  either  so  characterizing  it  or  of  altogether  denying  compensation, 
and  it  chose  the  least  objectionable  of  these  two  alternatives.  This  principle, 
which  is  altogether  just  in  its  application  to  cases  where  the  loss  of  the  plaintiff 
has  inured  to  the  profit  of  the  defendant,  would  be  most  unjust  if  applied  to 
cases  where  the  defendant  has  obtained  no  such  profit.  This  may  be  illus- 
trated by  taking  a  concrete  case,  and  I  take  a  case  even  plainer  in  its  facts 
than  the  Krause  Case.  Let  us  suppose  that,  with  commendable  motives  and 
in  the  best  of  faith,  one  friend  communicates  to  another  with  all  amplitude  of 
detail  certain  information  he  has  received  respecting  a  mine,  which  it  is  known 
that  neither  of  them  has  ever  visited.  The  object  of  this  communication  is  to 
induce  the  one  to  whom  it  is  made  to  purchase  stock,  but  not  from  the  one 
making  the  communication,  but  from  a  third  person  having  no  relation  to  him. 
The  stock  is  purchased  accordingly,  without  any  profit  resulting  to  the  friend 
making  the  communication;  the  information  proves  to  be  false  and  the  stock 
worthless.  Did  the  friend  who  communicated  the  information  which  proved 
to  be  false  commit  a  fraud  ?  He  did  no  moral  wrong.  Indeed,  from  a  moral 
point  of  view  his  conduct  was  commendable,  and,  unless  compelled  to  do  so, 
the  court  should  not  announce  a  rule  of  law  which  penalizes  commendable  con- 
duct. Are  we  compelled  to  declare  that  there  exists  a  rule  of  law  which  makes 
such  conduct  fraudulent  ?  Manifestly  not  unless  we  are  boimd  to  declare 
that  the  doctrine  of  the  Holcomb  and  Busch  Cases  applies.  Must  we  so 
declare  ?  As  already  pointed  out,  the  case  differs  materially  from  the  Hol- 
comb and  Busch  Cases,  and  this  difference  is  such.that  the  doctrine  of  those 
cases  has  no  just  application.  That  doctrine  was  designed  to  accomplish  jus- 
tice: as  applied  in  the  Holcomb  and  Busch  Cases  and  in  similar  cases  it  does 
accomplish  justice.  As  applied  to  cases  where  the  loss  of  the  plaintiff  has  not 
inured  to  the  profit  of  the  defendant  it  accomplishes  an  injustice,  and  it  there- 
fore has  no  application  to  such  cases. 


Lord  Haldane,  L.  C,  in  NOCTON  v.  LORD  ASHBURTON 

(1914)  Appeal  Cases,  932,  945-946,  961-954. 

I HAVB  read  the  evidence  of  the  appellant,  and,  although  it  is  obviously  un- 
reliable evidence,  it  leaves  on  my  mind  the  same  impression  that  it  left  on 
that  of  the  learned  judge  who  heard  it,  that  the  solicitor  did  not  consciously 
intend  to  defraud  his  client,  but,  largely  owing  to  a  confused  state  of  mind, 
believed  that  he  was  properly  joining  with  him  and  guiding  him  in  a  good 
speculation. 

I  cannot,  therefore,  treat  the  case,  ^  far  as  based  on  intention  to  deceive, 
as  made  out.  But  where  I  differ  from  the  learned  judges  in  the  Courts  below 
is  as  to  their  view  that,  if  they  did  not  regard  deceit  as  proved,  the  only  alter- 
native was  to  treat  the  action  as  one  of  mere  negligence  at  law  unconnected 
with  misconduct.  This  alternative  they  thought  was  precluded  by  the  way 
the  case  had  been  conducted.  I  am  not  sure  that,  on  the  pleadings  and  on  the 
facts  proved,  they  were  right  even  in  this.  The  question  might  well  have  been 
treated  as  in  their  discretion  and  as  properly  one  of  costs  only,  having  regard 


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CHAP.  IV.]       NOCTON  V.  LORD  ASHBURTON  579 

to  the  unsatisfactory  evidence  of  the  appellant.  But  I  do  not  take  the  view 
that  they  were  shut  up  within  the  dilemma  they  supposed.  There  is  a  third 
fonn  of  procedure  to  which  the  statement  of  claim  approximated  very  closely, 
and  that  is  the  old  bill  in  Chancery  to  enforce  compensation  for  breach  of  a 
fiduciary  obligation.  There  appears  to  have  been  an  impression  that  the 
necessity  which  recent  authorities  have  established  of  proving  moral  fraud  in 
order  to  succeed  in  an  action  of  deceit  has  narrowed  the  scope  of  this  remedy. 
For  the  reasons  which  I  am  about  to  offer  to  your  Lordships,  I  do  not  think 
that  this  is  so.  .  .  . 

My  Lords,  it  is  known  that  in  cases  of  actual  fraud  the  Courts  of  Chancery 
and  of  Common  Law  exercised  a  concurrent  jurisdiction  from  the  earliest 
times.  For  some  of  these  cases  the  greater  freedom  which,  in  early  days,  the 
Court  of  Chancery  exercided  in  admitting  the  testimony  of  parties  to  the  pro- 
ceedings made  it  a  more  smtable  tribunal.  Moreover,  its  remedies  were  more 
elastic.  Operating  in  personam  as  a  Court  of  conscience  it  could  order  the 
defendant,  not,  indeed,  in  those  days,  to  pay  damages  as  such,  but  to  make 
restitution,  or  to  compensate  the  plaintiff  by  putting  hjn)  in  as  good  a  posi- 
tion pecuniarily  as  that  in  which  he  was  before  the  injiuy. 

But  in  addition  to  this  concurrent  jurisdiction,  the  Court  of  Chancery  ex- 
ercised an  exclusive  jurisdiction  in  cases  which,  although  classified  in  that 
Court  as  cases  of  fraud,  yet  did  not  necessarily  import  the  element  of  dolus 
malus.  The  Court  took  upon  itself  to  prevent  a  man  from  acting  against  the 
dictates  of  conscience  as  defined  by  the  Court,  and  to  grant  injunctions  in 
anticipation  of  injury,  as  well  as  relief  where  injury  had  been  done.  Common 
instances  of  this  exclusive  jurisdiction  are  cases  arising  out  of  breach  of  duty 
by  persons  standing  in  a  fiduciary  relation,  such  as  the  solicitor  to  the  client,^ 
illustrated  by  Lord  Hardwicke's  judgment  in  Chesterfield  v.  Janssen,  2  Ves. 
Sen.  125.  I  can  hardly  imagine  that  those  who  took  part  in  the  decision  of 
Deny  v.  Peek,  14  App.  Cas.  337,  imagined  that  they  could  be  supposed  to 
have  cast  doubt  on  the  principle  of  any  cases  arising  under  the  exclusive 
jurisdiction  of  the  Court  of  Chancery.  No  such  case  was  before  the  House, 
which  was  dealing  only  with  a  case  of  actual  fraud  as  to  which  the  jurisdiction 
in  equity  was  concurrent.  .  .  . 

So  far  as  the  equity  jurisdiction  in  cases  of  what  is  called  fraud  is  concur- 
rent only  and  exercised  in  actions  for  mere  deceit  apart  from  breach  of  special 
duty,  an  actual  intention  to  cheat  has  now  to  be  proved.  But  there  are  cases 
of  other  classes  to  which,  as  I  have  already  said,  the  Court  of  Chancery  un- 
doubtedly did  apply  the  term  fraud,  although  I  think  unfortunately. 

Fraud  in  such  cases  is,  as  James,  L.  J.,  said  in  Torrance  v.  Bolton,  L.  R. 
8  Ch.  118,  at  p.  124,  "  rurmen  generalissimumj  and  it  must  not  be  construed  so 
as  to  mislead  persons  into  the  notion  that  contracts  for  the  sale  and  purchase 
of  lands  are  in  any  respect  privileged,  so  as  to  be  free  from  the  ordinary  juris- 
diction of  the  Court  to  deal  with  them  as  it  deals  with  &ny  instrument,  or  any 
other  transactions,  in  which  the  Court  is  of  opinion  that  it  is  unconscientious 
for  a  person  to  avail  himself  of  the  legal  advantage  which  he  has  obtained. 
Indeed,  the  books  are  full  of  cases  in  which  the  Court  has  dealt  with  contracts 
of  that  kind  —  contracts  obtained  by  persons  from  others  over  whom  they 
have  dominion,  contracts  obtained  by  persons  in  a  fiduciary  position,  con- 
tracts for  the  sale  of  shares  obtained  by  directors  through  misrepresentation 
contained  in  the  prospectus,  in  respect  of  which  it  was  never  necessary  to 
allege  or^rove  that  the  directors  were  wilfully  guilty  of  moral  fraud  in  what 


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580  LOW  V.  BOUVERIE  [CHAP.  IV. 

they  had  done."  In  Chancery  the  term  "  fraud  "  thus  came  to  be  used  to 
describe  what  fell  short  of  deceit,  but  imported  breach  of  a  duty  to  which 
equity  had  attached  its  sanction.  What  was  laid  down  by  Lord  Eldon  in  this 
House  in  Bulkely  v.  Wilford,  2  CI.  &  F.  102,  at  p.  177,  explains  the  nature  of 
the  duty. 

My  Lords,  I  have  dealt  thus  fully  with  this  distinction  because  I  think 
that  confusion  hajs  arisen  from  overlooking  it.  It  must  now  be  taken  to  be 
settled  that  nothing  short  of  proof  of  a  fraudulent  intention  in  the  strict-sense 
will  suffice  for  an  action  of  deceit.  This  is  so  whether  a  Court  of  Law  or  a 
court  of  equity  in  the  exercise  of  concurrent  jurisdiction  is  dealing  with  the 
claim,  and  in  this  strict  sense  it  was  quite  natural  that  Lord  Bramwell  and 
Lord  Herschell  should  say  that  there  was  no  such  thing  as  legal  as  distin- 
guished from  moral  fraud.  But  when  fraud  is  referred  to  in  the  wider  sense 
in  which  the  books  are  full  of  the  expression,  used  in  Chancery  in  describing 
cases  which  were  within  its  exclusive  jurisdiction,  it  is  a  mistake  to  suppose 
that  an  actual  intention  to  cheat  must  always  be  proved.  A  man  may  mis- 
conceive the  extent  of  the  obligation  which  a  Court  of  Equityimposes  on  him. 
His  fault  is  that  he  has  violated,  however  innocently  because  of  his  ignorance, 
an  obligation  which  he  must  be  taken  by  the  Court  to  have  known,  and  his 
conduct  has  in  that  sense  always  been  called  fraudulent,  even  in  such  a  case  as 
a  technical  fraud  on  a  power.  It  was  thus  that  the  expression  "  constructive 
fraud  "  came  into  existence.  The  trustee  who  purchases  the  trust  estate,  the 
solicitor  who  makes  a  bargain  with  his  client  that  cannot  stand,  have  all  for 
several  centuries  run  the  risk  of  the  word  fraudulent  being  applied  to  them. 
What  it  really  means  in  this  connection  is,  not  moral  fraud  in  the  ordinary 
sense,  but  breach  of  the  sort  of  obligation  which  is  enforced  by  a  Court  that 
from  the  beginning  regarded  itself  as  a  Court  of  conscience. 


Kay,  L.  J.,  IN  LOW  v.  BOUVERIE 

(1891)  3  Chancery,  82,  111-113. 

The  result  of  the  authorities  seems  to  be  as  follows:  — 

1.  There  has  been  from  ancient  time  a  jurisdiction  in  Courts  of  Equity  in 
certain  cases  to  enforce  a  personal  demand  against  one  who  made  an  untrue 
representation  upon  which  he  knew  that  the  person  to  whom  it  was  made  in- 
tended to  act,  if  such  person  did  act  upon  the  faith  of  it  and  suffered  loss  by 
so  acting. 

2.  This  was  readily  done  where  the  representation  was  fraudulently  made, 
in  which  case  an  action  of  deceit  would  lie  at  law. 

3.  Relief  will  also  be  given  at  Law  and  in  Equity,  even  though  the  repre- 
sentation was  innocently  made  without  fraud,  in  all  cases  where  the  suit  will 
be  effective  if  the  defendant  is  estopped  from  denying  the  truth  of  his  repre- 
sentation. 

4.  Where  there  is  no  estoppel,  an  innocent  misrepresentation  will  not  sup- 
port an  action  at  law  for  damages  occasioned  thereby. 

5.  Estoppel  is  effective  where  an  action  must  succeed  or  fail  if  the  defend- 
ant or  plaintiff  is  prevented  from  disputing  a  particular  fact  alleged:  for  ex- 
ample, if  an  assign  of  A.  sues  A.'s  trustee  to  recover  the  fund  assigned,  and  the 
trustee  is  prevented  from  denying  its  existence  in  his  hands;  or  at  law,  if  the 


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CHAP.  IV.]  FRY  V.  SMELLIE  581 

assign  of  a  debt  should  sue  the  allied  debtor  and  he  was  prevented  from  deny- 
ing that  the  debt  was  due.  Or,  in  the  converse  case,  an  estoppel  may  be  a 
defence;  as  if  a  joint  stock  company  were  to  sue  a  shareholder  for  calls  and 
they  were  estopped  from  denying  that  the  shares  were  paid  up,  their  action 
would  fail. 

It  is  obvious  that  this  rule  does  not  apply  to  an  action  for  deceit.  In  such 
an  action  the  plaintiff  relies,  not  on  the  truth  of  the  statement,  but  upon  its 
falsehood;  and  he  is  bound  to  prove,  not  only  that  the  representation  was 
untrue,  but  also  that  it  was  made  fraudulently.  Deny  v.  Peek,  14  App.  Cas. 
337,  very  well  illustrates  the  difference.  li  was  an  action  by  a  person  who 
had  been  induced  to  take  shares  in  a  joint  stock  company  by  an  imtrue  state- 
ment in  a  prospectus.  The  action  was  not  against  the  company,  but  against 
the  directors  who  had  issued  the  prospectus.  The  representation  was  not 
fraudulently  made.  Preventing  the  defendants  from  denying  the  truth  of 
their  representation  would  not  enable  the  plaintiff  to  succeed  in  such  an 
action;  so  that  the  plaintiff  could  not  rely  on  estoppel.  That  could  only  be 
if  the  defence  had  been  that  the  statement  was  inaccurate,  and  the  defendants 
were  estopped  from  den3dng  the  accuracy  of  their  own  statement.  The 
plaintiff's  case  was  not  that  the  statement  must  be  treated  as  accurate:  on 
that  supposition  he  could  not  have  had  any  relief  against  the  defendants.  The 
plaintiff  sued  the  defendants  upon  the  groimd  that  the  statement  was  false, 
and  false  to  their  knowledge  —  that  is,  fraudulent;  and  the  defence  that 
prevailed  was  that,  if  it  was  inaccurate,  it  was  not  fraudulent. 

6.  I  am  not  satisfied  that  relief  in  the  nature  of  a  personal  demand  against 
the  defendant  has  been  given  in  Equity  in  cases  which  did  not  involve  fraud 
or  to  which  this  doctrine  of  estoppel  would  not  apply.  Slim  v,  Croucher, 
1  D.  F.  &  J.  518,  is  the  only  instance  I  know  of;  and,  as  Lord  Campbell  said 
that  there  might  be  relief  at  law  in  that  case,  he  probably  considered,  either 
that  it  was  a  case  of  estoppel,  or  that  an  action  of  deceit  would  lie  —  which 
latter  view  is  not  consistent  with  Deny  v.  Peek,  14  App.  Cas.  337. 


Farwbll,  L.  J.,  IN  FRY  v.  SMELLIE 

(1912)  3  King's  Bench  Division,  282,  294-295. 

I  CAN  only  say  that  certificates  and  a  blank  transfer  are  in  everyday  use  as 
securitiee  for  raising  money,  and  that  every  man  who  lends  money  to  A.  on 
documents  which  show  a  title  in  B.  is  of  course  put  on  inquiry.  This  does 
not  mean  that  he  must  refuse  to  deal  with  the  agent  at  all  but  ihust  refer 
to  the  principal,  but  that  he  must  make  such  inquiry  as  is  reasonable  under 
the  circumstances.  If  he  is  foolish  enough  to  lend  to  A.  without  inquiry,  and 
A.  has  no  right  or  authority  to  deal  with  the  documents,  he  loses  his  money, 
and  it  is  perfectly  immaterial  whether  the  security  is  a  deposit  of  title  deeds 
to  real  estate  or  certificates  of  shares  with  a  blank  transfer.  Such  a  question 
as  arises  in  the  present  case  can  only  arise  when  the  owner  of  the  property  has 
authorized  such  a  dealing  with  the  property  as  is  corroborated  by  the  posses- 
sion of  the  indicia  of  title.  If  no  authority  at  all  has  in  fact  been  given  it  is 
quite  immaterial  whether  the  lender  inquires  and  is  given  an  untrue  answer 
or  does  not  inquire  at  all;  in  either  case  he  loses  his  money.  But  if  the  owner 
has  in  fact  given  the  borrower  authority  to  deal  with  the  property  by  way  of 


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682  WATSON  V,  JONES  [CHAP,  IV. 

loan  or  by  way  of  sale,  and  has  entrusted  him  with  the  indicia  of  title,  en- 
abling him  so  to  deal,  then  the  owner  cannot  be  heard  to  say  that  there  is  any 
limit  on  the  authority  so  given.  If  the  indicia  of  title  are  apparently  co- 
extensive with  the  authority  claimed  there  is  nothing  to  suggest  any  limit. 
The  estoppel  arises  out  of  the  conduct  of  the  owner  of  the  property.  E^ppel 
is  merely  a  rule  of  evidence  which  prevents  the  person  estopped  from  giving 
certain  facts  in  evidence.  If  A.'s  conduct  amounts  to  an  invitation  to  B.  to 
advance  money  to  C.  without  limit  on  the  title  deeds  of  A.'s  property',  he  can- 
not be  heard  to  say  that  he  had  imposed  on  C.  a  limit,  any  more  than  if  he 
had  written  or  said  to  B.  that  he  had  given  C.  authority  to  borrow  money  and 
had  not  mentioned  any  limit.  If  he  has  simply  deposited  his  deeds  with  C. 
such  deposit  involves  no  such  representation,  and  there  is  therefore  no  such 
estoppel.  In  speaking  of  estoppel,  I  am  referring  to  the  doctrine  of  estoppel 
by  representation  which  Lord  Macnaghten,  in  Whitechurch  v.  Cavanagh, 
[1902]  A.  C.  117,  at  p.  130,  says  "  is  a  very  old  head  of  equity."  (See  Low  v. 
Bouverie,  [1891]  3  Ch.  82.)  It  is  sometimes  called  equitable  estoppel  or  a  rule 
of  equity,  and  has  been  expressed  in  some  of  the  cases  as  the  rule  which  com- 
pels a  man  to  make  good  his  representations  of  fact,  in  reliance  on  which  the 
person  to  whom  they  have  been  made  for  the  purpose  of  inducing  him  to  act 
on  them  has  so  acted.  Indeed  equitable  estoppel  is  the  only  way  in  which  this 
doctrine  of  making  good  representations  has  survived  the  decision  in  Deny  v. 
Peek,  14  App.  Cas.  337.  The  circumstances  must  necessarily  be  such  as  to 
show  a  duty  to  some  one  to  disclose  fully  on  the  person  making  the  representa- 
tion, but  it  is  not  a  quesion  of  negligence  in  the  sense  that  an  action  for  dam- 
ages would  lie  at  common  law,  and  no  bill  in  equity  would  ever  have  been  filed 
for  damages.^ 

Carter,  J.,  in  WATSON  v.  JONES 
(1899)  41  Florida,  241,  253-255. 

[After  citing  Wheeler  v.  Baars,  33  Florida,  696.] 

It  is  there  said  that  the  scienter  may  be  proved  by  showing,  first, 
actual  knowledge  of  the  falsity  of  the  representation  by  defendant; 
second,  that  defendant  made  the  statement  as  of  his  own  knowledge, 
or  in  such  absolute  unqualified  and  positive  terms  as  to  imply  his  per- 
sonal knowledge  of  the  fact,  when  in  truth  defendant  had  no  knowl- 
edge whether  the  statement  was  true  or  false;  or,  third,  that  the 
party's  special  situation  or  means  of  knowledge  were  such  as  to  make 
it  his  duty  to  know  as  to  the  truth  or  falsity  of  the  representation. 
Under  each  phase  the  proof  must  show  that  the  statement  was  in  fact 

^  "  The  doctrine  seems  to  be  well  established  by  authority  that  the  conduct  and 
admissions  of  a  party  operate  against  him  in  the  nature  of  an  estoppel,  wherever, 
in  good  conscience  and  honest  dealing,  he  ought  not  to  be  permitted  to  gainsay 
them.  Thus,  negligence  becomes  constructive  fraud,  —  although,  strictly  speak- 
ing, the  actual  intention  to  mislead  or  deceive  may  be  wanting,  and  the  party  may 
be  mnocent.  if  innocence  and  gross  negligence  may  be  deemed  compatible;  and  in 
such  cases  the  maxim  is  justly  Applied  to  him,  that  where  one  of  two  innocent  per- 
sons must  suffer,  he  shall  suffer  who  by  his  own  acts  occasioned  the  confidence  and 
loss.  The  application  of  the  maxim  to  the  case  before  us  is  obvious.  The  principle 
involved  in  it  is  kindred  to  that  of  an  equitable  estoppel,  the  difference  being  that 
the  application  of  the  estoppel,  instead  of  the  maxim,  avoids  the  loss  to  the  inno- 
cent party  who  has  been  misled  by  the  conduct  of  another.   See  1  Story's  Eq.  Jur., 


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CHAP.  iV.]  WATSON  V.  JONES  583 

false,  and  in  addition,  under  the  first,  that  defendant  had  actual  knowl- 
edge that  it  was  false;  under  the  second,  that  defendant  made  the 
statement  as  of  his  own  knowledge,  when  in  fact  he  had  no  knowledge 
whether  it  was  true  or  false,  which  seems  to  bear  a  close  resemblance 
to  the  English  rule,  "  without  belief  in  its  truth,  or  recklessly  careless 
whether  it  be  true  or  false  ";  and  under  the  third,  that  defendant's 
special  situation  or  means  of  knowledge  were  such  as  made  it  his 
duty  to  know  as  to  the  truth  or  falsity  of  the  representation.  From 
this  i^tement  it  is  quite  evident  that  proof  suflScient  to  sustain  the 
third  phase  tends  very  strongly  to  sustain  the  idea  that  the  defendant 
had  actual  knowledge  of  the  falsity  of  his  statement;  for  when  it  is 
shown  that  the  statement  was  material  and  false,  and  that  the  defend- 
ant's situation  or  means  of  knowledge  were  such  as  to  make  it  incum- 
bent upon  him  as  a  matter  of  duty  to  know  whether  the  statement  was 
true  or  false,  the  conclusion  is  almost  irresistible  that  he  did  know 
that  which  his  duty  required  him  to  know.  For  this  reason  the  law 
conclusively  presumes  from  the  existence  of  these  facts  that  defendant 
had  actual  knowledge  of  the  falsity  of  his  statement,  or,  more  properly 
speaking,  proof  of  these  facts  is  sufficient  to  sustain  a  charge  of  actual 
laiowledge,  dispensing  with  further  proof  upon  that  subject,  and  ad- 
mitting no  proof  to  rebut  the  fact  of  actual  knowledge,  but  only  proof 
to  rebut  the  existence  of  the  facts  from  which  such  actual  knowledge 
is  inferred.  We  are  therefore  of  opinion  that  proof  of  scienter  in  the 
third  phase  does  not  give  another  or  different  right  or  ground  of  action 
from  that  given  by  proof  imder  the  first  phase,  but  that  it  simply 
establishes  the  same  ultimate  fact,  viz.,  knowledge,  by  a  different 
class  of  evidence,  and  consequently  that  an  allegation  that  defendant 
*'  knew  "  his  representation  to  be  false  is  provable  by  evidence  em- 
braced in  the  third  phase.  In  other  words,  an  averment  that  de- 
fendant's situation  or  means  of  knowledge  were  such  as  made  it  his 
duty  to  know  whether  his  statement  was  true  or  false,  and  an  aver- 
ment that  defendant  well  knew  his  statements  to  be  untrue,  are  but 
different  methods  of  stating  the  same  ultimate  fact,  viz.,  knowledge.^ 

sees.  387,  389;  Lucas  «;.  Hart,  6  Iowa,  416;  Commonwealth  v.  Moltz,  10  Pa.  St. 
527,  631 :  Smith  v.  McNeal,  68  Pa.  St.  164."  Foster,  J.,  in  Stevens  t;.  Dennett,  61 
N.H.3lk,335. 

**  The  usual  form  of  expressing  the  situation  which  founds  an  estoppel  in  vays 
has  been  that  followed  in  the  rulings  given,  in  which,  as  in  many  of  the  older  deci- 
sions, it  is  said  that  an  intent  to  deceive  is  a  necessary  element.  But  under  this 
formula  the  jury  were  not  prohibited  from  finding  the  intention  and  the  estoppel, 
if,  without  more,  the  plaintiff  spoke  or  acted  falsely,  knowing  or  having  cause  to 
believe  that  his  woros  or  conduct  reasonably  mignt  influence  the  defendant's 
action.  The  more  modem  statement,  that  one  is  responsible  for  the  word  or  act 
which  he  knows,  or  ought  to  know,  will  be  acted  upon  by  another,  includes  the 
older  statement  that  the  estoppel  comes  from  an  intention  to  mislead.  White  v, 
Duggan,  140  Mass.  18.  20.  Tracy  v.  Lincohi,  146  Mass.  367,  369.  O'Donnell  v. 
Clinton,  146  Mass.  461,  463.  Washburn  v,  Hanunond,  161  Mass.  132,  141." 
Barker.  J^,  m  Stiff  v.  Ashton,  166  Mass.  130,  133. 

1  Milson  v.  Gerstenberg,  43  App.  D.  C.  166;  Ballard  v.  Thibodeau,  109  Me.  669; 
Kiefer  v.  Rogers,  19  Minn.  32;  Hedin  v.  Minneapolis  Medical  Institute,  62  Minn. 
146;  Flaherty  v.  Till,  119  Minn.  191;  Devero  v.  Sparks,  189  Mo.  App.  600;  Craig 


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584  CABOT  V.  CHRISTIE  [CHAP.  IV. 

CABOT  V.  CHRISTIE 

Supreme  Court,  Vermont,  February  Term,  1869. 

Reported  in  42  Vermont  Reports,  121. 

Case  for  false  warranty  in  the  sale  of  a  farm.  Plea,  not  guilty. 
Trial  by  jury,  May  term,  1868,  Barrett,  J.,  presiding. 

The  plaintiJBf  gave  evidence  tending  to  show  that  he  bought  the  farm 
at  the  time  and  for  the  price  stated  in  the  declaration,  and  that  the 
defendant  made  representations  in  respect  to  the  number  of  acres,  as 
of  his  own  knowledge,  designedly  intending  to  induce  the  plaintiff  to 
suppose  and  believe,  and  thereby  the  plaintiff  was  induced  to  and  did 
suppose  and  believe,  that  the  farm  contained  at  least  one  hundred  and 
thirty  acres  of  land,  and  reljdng  thereupon,  the  plaintiff  made  the  pur- 
chase; that  the  defendant  knew  that  there  was  not  one  hundred  and 
thirty  acres,  or  he  didn't  know  that  there  was  that  quantity;  that  in 
fact  there  was  only  one  hundred  and  seventeen  acres  and  a  few  rods  in 
the  farm;  that  the  plaintiff  had  no  knowledge  of  the  quantity  except 
from  the  defendant's  representation. 

The  defendant  gave  evidence  tending  to  show  that  he  supposed 
there  was  one  hundred  and  thirty  acres  and  a  little  more  in  the  farm, 
derived  from  what  he  had  heard  said,  and  from  various  deeds  in  his 
possession  of  various  grantors  and  of  various  parcels,  but  that  he  did 
not  know,  and  did  not  profess  or  represent  to  the  plaintiff  that  he 
knew  how  many  acres  there  were  in  fact;  that  he  gave  the  plaintiff 
all  the  information  and  sources  of  information  he  had  on  the  subject, 
neither  making  any  false  representation,  nor  fraudulent  concealment, 
nor  any  undertaking  as  to  the  number  of  acres  in  the  farm.  There 
was  no  evidence  or  claim  that  the  farm  was  sold  by  the  acre;  but  it 
appeared  that  it  was  sold  in  lump,  or  as  a  farm  entire. 

The  plaintiff  requested  the  Court  to  charge  the  jury:  — 

First,  That  under  the  declaration  the  plaintiff  is  entitled  to  recover 
if  he  proves  a  warranty  of  the  number  of  acres  in  the  farm,  or  if  he 
proves  a  fraudulent  representation  of  the  number  of  acres. 

Second,  That  the  fraudulent  representation  may  be  proved  either  by 
evidence  of  false  representations,  known  to  the  defendant  to  be  false, 
and  relied  upon  by  the  plaintiff,  or  by  proof  of  an  absolute  repre- 
sentation of  the  number  of  acres,  which  representation  was  made  with 

V.  Ward,  1  Abb.  Dec.  454;  Garvin  v.  Harrell,  27  Okl.  373;  Wells  v,  Driskell, 
(Tex.  Civ.  App.)  149  S.  W.  205  Accord. 

See  Water  Corners  v.  Robbins,  82  Conn.  623;  Auman  v.  McKibben,  179  HI. 
App.  425;  Huntress  v.  Blodgett,  206  Mass.  318;  Bank  v.  Wood,  189  Mo.  App.  62. 

As  to  die  fiction  of  "  presumption  of  knowledge,"  see:  Hicks  v.  Stevens,  121  lU. 
186;  Ward  v.  Trimble,  103  Ky.  153;  Reynolds  v.  Evans,  123  Md.  365;  Unitype 
Co.  V.  Ashcraft,  155  N.  C.  63;  Collins  v.  Chipman,  41  Tex.  Civ.  App.  563.  Com- 
pare Brooks  V.  Hamilton,  15  Minn.  26. 


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CHAP.  IV.]  CABOT  V.  CHRISTIE  585 

intent  that  the  plamtiff  should  rely  upon  it,  and  was  made  upon  pro- 
fessed knowled^,  but  without  actual  knowledge,  and  which  was  in 
fact  false,  but  was  relied  upon  by  the  plaintiflf  as  true. 

The  Court  complied  witli  said  requests  only  so  far  as  is  shown  by 
the  charge,  and  charged  as  follows:  — 

In  order  to  entitle  the  plaintiff  to  recover  he  must  satisfy  the  jiuy 
that  the  defendant  knew  the  farm  did  not  contain  one  hundred  and 
thirty  acres,  or  that  he  did  not  beUeve  it  contained  one  hundred  and^ 
thirty  acres;  and  that  in  order  to  induce  the  plaintiff  to  buy  the  farm 
he  falsely  represented  it  to  contain  one  hund^d  and  thirty  acres;  and 
that  the  plaintiff  was  by  such  false  representation  induced  to  make  the 
purchase,  beUeving  it  to  contain  that  quantity. 

If  he  honestly  beUeved  it  contained  one  hundred  and  thirty  acres, 
the  plaintiff  cannot  recover,  though  the  defendant  was  in  error  about 
it.  Honest  mistake  is  not  fraud.  Incorrect  is  not  the  same  as  false. 
You  must  iSnd  that  he  represented  the  quantity  different  from  what  he 
knew  or  believed  to  be  true,  with  the  fraudulent  intent.  Also,  that  the 
plaintiff  was  thus  induced  to  make  the  purchase.  That  is,  that  the 
plamtiff  would  not  have  made  the  purchase  if  the  defendant  had  not 
represented  it  to  be  one  hundred  and  thirty  acres.  Inquire  as  to  these 
several  points.    Fraud  is  not  presumed,  but  must  be  proved. 

The  jury  returned  a  verdict  for  the  defendant.  TTie  plaintiff  ex- 
cepted to  the  charge  in  the  respects  in  which  it  failed  to  comply  with, 
or  was  against  said  requests.  In  other  respects  the  charge  was 
satisfactory. 

The  declaration  counted  both  upon  a  false  warranty  of  the  defend- 
ant in  r^ard  to  the  number  of  acres  contained  in  the  farm,  and  a 
warranty  in  regard  to  said  quantity. 

The  opinion  of  the  Court  was  delivered  by 

Steele,  J.  1.  The  plaintiff  cannot  recover  upon  the  ground  of  a 
parol  warranty  of  the  quantity  of  the  land.  If  the  quantity  was  war- 
ranted it  should  be  provable  by  the  deed.  It  is  true  that  a  deed  of 
conveyance  need  not  contain  all  the  stipulations  of  the  parties.  For 
example,  the  agreements  as  to  conaderation  and  mode  of  payment 
need  not  be  embraced  in  the  deed,  for  the  instrument  purports  to  be 
the  deed  of  but  one  of  the  parties.  But  it  does  purport  to  contain  the 
convenants  of  the  grantor  with  respect  to  the  property  conveyed.  To 
add  a  new  covenant  by  parol  proof  would  be  a  palpable  violation  of  the 
familiar  rule  that  written  contracts  are  not  to  be  varied  by  oral  testi- 
mony. Such  a  parol  stipulation,  it  has  been  held,  could  not  be  proved 
in  respect  to  an  ordinary  bill  of  sale  of  personal  property. 

Nor  is  the  plaintiff  entitled  to  recover  in  this  action  upon  the  ground 
of  mistake.  A  mutual  and  material  mistake,  by  which  the  purchaser 
was  misled  as  to  the  quantity  of  land,  would  be  a  more  appropriate 
ground  for  relief  in  a  court  of  chancery  than  in  a  court  of  law. 


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586  CABOT  V.  CHRISTIE  [CHAP.  IV. 

If,  then,  the  plaintiff  was  entitled  to  recover  at  all  in  this  case,  it 
was  by  reason  of  some  fraud  on  the  part  of  the  defendant  by  which 
the  bargain  was  induced. 

2.  The  plaintiff  complains  of  the  ruling  of  the  County  Court  upon 
the  subject  of  fraud.  It  is  conceded  that  the  quantity  of  land  was  rep- 
resented incorrectly.  The  Court  properly  told  the  jury  that  this,  in 
itself,  would  not  amount  to  fraud.  To  entitle  the  plaintiff  to  a  re- 
covery upon  that  ground,  the  defendant  must  have  made  some  repre- 
sentation upon  the  subject  that  he  did  not  believe  to  be  true.  The 
plaintiff  claims,  and  his  evidence  tended  to  prove,  that  the  defendant 
did  make  such  a  representation  by  stating  the  quantity  of  land  as  a 
matter  within  his  own  knowledge,  when,  in  fact,  as  the  defendant  con- 
cedes, it  was  a  matter  upon  which  he  had  only  a  beUef .  We  think  it 
very  clear  that  a  party  may  be  guilty  of  fraud  by  stating  his  belief 
as  knowledge.  Upon  a  statanent  of  the  defendant's  mere  belief, 
judgment,  or  information,  the  plamtiff  might  have  r^arded  it  prudent 
to  procure  a  measurement  of  tlie  land  before  completing  his  purchase. 
A  statement,  as  of  knowledge,  if  believed,  would  make  a  survey  or 
measurement  seem  unnecessary.  A  representation  of  a  fact,  as  of 
the  party's  own  knowledge,  if  it  prove  false,  is,  unless  explained,  in- 
ferred to  be  wilfully  false  and  made  with  an  intent  to  deceive,  at 
least  in  respect  to  the  knowledge  which  is  professed.  A  sufficient  ex- 
planation however  sometimes  arises  from  the  nature  of  the  subject 
itself,  or  from  the  situation  of  the  parties  being  such  that  the  state- 
ment of  knowledge  could  only  be  understood  as  an  expression  of  strong 
belief  or  opinion.  But  the  quantity  of  land  in  a  farm  is  a  matter  upon 
which  accurate  or  approximately  accurate  knowledge  is  not  at  all  im- 
possible or  unusual.  If  the  defendant  had  only  a  belief  or  opinion 
as  to  the  quantity  of  land,  it  was  an  imposition  upon  the  plaintiff  to 
pass  off  such  belief  as  knowledge.  So,  too,  if  he  made  an  absolute 
representation  as  to  the  quantity,  which  was  understood  and  intended 
to  be  understood  as  a  statement  upon  knowledge,  it  is  precisely  the 
same  as  if  he  had  distinctly  and  in  terms  professed  to  have  knowledge 
as  to  the  fact.  It  is  often  said  that  a  representation  is  not  fraudulent 
if  the  party  who  makes  it  believes  it  to  be  true.  But  a  party  who  is 
aware  that  he  has  only  an  opinion  how  a  fact  is,  and  represents  that 
opinion  as  knowledge,  does  not  believe  his  representation  to  be  true. 
As  is  well  said  in  a  note  to  the  report  of  the  case  of  Taylor  v.  Ashton, 
11  Mees.  &  Wels.  418  (Phila.  Ed.),  the  belief  of  a  party  to  be  an 
excuse  for  a  false  representation  must  be  "  a  beUef  in  the  representa- 
tion as  made.  The  scienter  will  therefore  be  sufficiently  established  by 
showing  that  the  assertion  was  made  as  of  the  defendant's  own  knowl- 
edge, and  not  as  mere  matter  of  opinion,  with  regard  to  facts  of  which 
he  was  aware  that  he  had  no  such  knowledge."  The  same  principle 
of  law  has  been  repeatedly  recognized.  Hanunatt  v,  Emerson,  27 
Maine,  308,  326;  Bennett  v.  Judson,  21  N.  Y.  238;  Stone  v.  Denny, 
4  Met.  151;  Hazard  v.  Irwin,  18  Pick.  96. 


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CHAP.  rV.]  CABOT  V.  CHRISTIE  587 

In  the  case  before  us  the  plaintiflf,  under  the  charge  of  the  Court, 
was  denied  the  benefit  of  this  rule  of  law,  although  there  was  evidence 
tending  to  show  every  necessary  element  of  a  fraud  of  the  nature  we 
have  been  considering.  The  plaintiff's  request  was  refused,  and  the 
jury  were  instructed  that  the  plamtiff  could  only  recover  in  case  they 
found  "  that  the  defendant  represented  the  quantity  of  land  different 
from  what  he  knew  or  beUeved  to  be  true."  Under  these  instructions 
it  would  be  immaterial  whether  he  made  the  representation  as  a  matter 
of  knowledge  or  as  a  matter  of  opinion  so  long  as  he  kept  within  his 
belief  as  to  the  quantity  of  land.  In  this  we  think  there  was  error. 
The  Court  properly  instructed  the  jury  that  the  representation,  to 
warrant  a  recovery,  must  have  been  reUed  on  and  have  been  an  in- 
ducement to  the  purchase.  The  subsequent  remark  that  the  jury,  to 
hold  the  defendant,  must  find  that  the  plaintiff  would  not  have  made 
the  purchase  but  for  the  representation,  we  regard  as  probably  in- 
advertent. 

What  the  plaintiff  would  have  done  but  for  the  false  representation 
is  often  a  mere  speculative  inquiry,  and  is  not  the  test  of  the  plaintiff's 
right.  If  the  false  representations  were  material  and  relied  upon,  and 
were  intended  to  operate  and  did  operate  as  one  of  the  inducements  to 
the  trade,  it  is  not  necessary  to  inquire  whether  the  plaintiff  would  or 
would  not  have  made  the  purchase  without  this  inducement. 

The  judgment  of  the  County  Court  is  reversed  and  the  cause  is 
remanded.^ 

1  O'Neill  V.  Conway,  88  Conn.  651;  Bethell  v.  Bethell,  92  Ind.  318;  Riley  v. 
Bell,  120  la.  618;  Gund  Brewing  Co.  v.  Peterson,  130  la.  301;  Davis  v.  Central 
Land  Co.,  162  la.  269;  Altoona  State  Bank  v.  Hart,  82  Kan.  308;  Braley  v. 
Powers,  92  Me.  203;  Litchfield  v.  Hutchinson,  117  Mass.  195:  Savage  v.  Stevens, 
126  Mass.  207;  Teague  v.  Irwin,  127  Mass.  217;  Adams  v,  Collins,  196  Mass.  422; 
Huntress  v.  Blodgett,  206  Mass.  318;  Chatham  Furnace  Co.  v,  Moffatt,  147  Mass. 
403;  RiggB  v,  Thorpe,  67  Minn.  217;  Vincent  v,  Corbitt,  94  Miss.  46;  Western 
Cattle  C^  V.  Gates.  190  Mo.  391 ;  Paretti  v.  Rebenack,  81  Mo.  App.  494;  Leicher 
V.  Keeney,  98  Mo.  App.  394, 110  Mo.  App.  292;  Leach  v.  Bond,  129  Mo.  App.  315; 
Crosby  v.  Wells,  73  N.  J.  Law,  790;  Thompson  v,  Koewing,  79  N.  J.  Law,  246; 
Hadcock  v.  Osmer,  153  N.  Y.  604;  Modlin  v.  Roanoke  Navigation  Co.,  145  N.  C. 
218;  Pate  v.  Blades,  163  N.  C.  267;  Joines  v.  Combs,  38  Okl.  380;  Gibbens  v, 
Bourland.  (Tex.  Civ.  App.)  145  S.  W.  274:  Grant  v.  Huschke,  74  Wash.  257; 
Tolly  V,  Poteet,  62  W.  Va.  231:  Rogers  v,  Koeenfeld,  158  Wis.  285  Accord.  See 
Roberts  v.  Anheuser  Busch  Ass'n,  211  Mass.  449. 

In  Brownhe  v.  Campbell,  5  App.  Cas.  925,  Lord  Blackburn  said  (pp.  952-53) : 
"  The  Courts  of  Law  nad  to  refer  fraud,  in  which  knowledge  was  an  essential 
ingredient,  to  a  jiuy.  A  Court  of  Equity  had  to  find  it  for  itself,  and  conse<)uently 
the  judges  in  Courts  of  Equity  were  not  driven  to  be  so  precisely  accurate  m  stat- 
ing exacUy  whether  they  were  going  upon  the  ground  that  there  was  a  contract  or 
warranty  that  the  thing  was  so,  or  whether  they  were  going  upon  the  ground  that 
the  party,  knowins  it  was  not,  and  representing  that  it  was,  nad  committed  a  fraud 
in  doing  that.  Most  of  the  cases  (tne  leading  one  is  Burrowes  v.  Loch,  10  Ves. 
470,  and  it  is  sufficient  to  mention  that,  though  there  were  others)  when  looked  at, 
if  they  do  not  absolutely  amount  to  contract,  come  unconmionly  near  it.  Ln  Bur- 
rowes V,  Loch  a  man  proposing  to  lend  money  on  the  security  of  an  equitable 
assignment  of  a  shfi^re  of  what  remained  due  on  account  of  the  residue  of  a  testator's 
estate,  went  to  the  trustee  who  held  the  fund  and  asked  him,  telling  him  the  facts, 
'  I  am  going  to  lend  money  upon  the  security  of  this  share,  has  an^  prior  loan  upon 
this  been  communicated  to  you  so  as  to  make  you  have  prior  notice,  so  as  to  miake 


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588  POSTER  V.  CHARLES  [CHAP.  IV. 

FOSTER  V.  CHARLES 
In  the  Common  Pleas,  November  10, 1830. 

Reported  in  7  Binghamy  105. 

Case  for  deceit;  the  declaration  alleging  that  certain  false  repre- 
sentations were  made  by  the  defendant  to  the  plaintiffs,  merchants  in 
London,  in  order  to  induce  them  to  engage  one  Jacque  as  their  agent 
at  Manchester.^ 

Plea,  the  general  issue. 

At  the  trial  before  Tindal,  C.  J.,  London  sittings  after  Michaelmas 
term,  it  appeared  that  in  November  or  December,  1824,  the  defendant, 
a  soap  manufacturer,  called  on  the  plaintiffs,  wholesale  tea  dealers, 
with  whom  he  was  on  terms  of  intimacy,  and  after  asking  them  if  they 
did  business  at  Manchester,  said  ''  he  had  a  young  friend  for  whom  he 
was  anxious  to  procure  a  commission  in  the  tea  trade  at  Manchester; 
a  nice  young  man,  who  had  an  excellent  connection  there,  and  would 
be  a  great  acquisition  to  any  person  who  wanted  to  do  business  there; 
the  defendant  being  on  such  terms  with  the  plaintiffs,  he  had  offered 
it  to  them  before  he  proposed  it  to  Smith  and  Co.,  —  a  respectable 
house  in  the  same  line  of  business;  that  Smith  and  Co.  would  jump  at 
the  offer;  that  his  friend  was  so  excellent  a  young  man,  that  he  would 
rather  trust  him  without  security  than  most  men  with;  that  this 
young  man  had  been  doing  business  at  Manchester  for  a  London  tea 
house,  who  could  no  longer  execute  his  extensive  orders;  that  he  had 
an  uncle  at  Manchester,  a  clergyman  of  the  Scotch  Church,  who  would 

that  other  loan  come  in  before  me  and  cut  me  out,  tell  me  that,  in  order  that  I  mav 
know  whether  I  will  lend  the  money  or  not.'  The  party  on  the  other  side  answered, 
'  There  has  been  none  such/  To  say  that  that  is  not  warranty  or  contract  that  he 
has  received  no  such  notice  is,  I  think,  going  very  near  the  wind;  if  it  was  not 
that  it  was  so  uncommonly  like  it,  that  I  cannot  make  the  distinction  myself. 
That  would  have  been  sufficient  for  the  Master  of  the  RoUs  to  say, '  You  have  war- 
ranted this.'  He  also  had  considerable  ground  for  doubting  whether  the  man  had 
really  bona  fide  forgotten.  The  man,  he  seems  to  have  thought,  had  thought  this, 
'  I  will  not  take  the  trouble  of  a  search.'  the  fact  being  that  he  really  knew  nothing 
about  this  and  would  not  take  the  trouble  of  looking,  but  he  boldly  made  the  asser- 
tion, '  I  know  there  is  none,'  saying  as  a  fact,  *  iTcnow  there  is  none,'  when  the 
real  truth  could  not  be  more  than  '  I  am  pretty  siu^  there  is  none.'  If,  when  a  man 
thinks  it  is  highly  probable  that  a  thing  exists,  he  chooses  to  say  he  knows  the 
thing  exists,  that  is  really  asserting  what  is  false  —  it  is  positive  fraud.  That  has 
been  repeatedly  laid  down,  and  I  think  the  more  it  is  considered  the  more  clear 
it  becomes.  If  you  choose  to  say,  and  say  without  inquiry, '  I  warrant  that,'  that 
is  a  contract.  If  you  say,  *  I  know  it,'  and  if  you  say  that  in  order  to  save  the 
trouble  of  inquiring,  that  is  a  false  representation  —  you  are  saying  what  is  false  to 
induce  them  to  act  upon  it.  I  think  all  the  cases  which  have  been  cited  come  round 
to  pointing  to  that,  out  none  of  them,  as  far  as  I  am  aware,  are  in  contradiction 
with  that  which  I  nave  cited  from  Chief  Justice  Tindal,  and  I  think  there  are  a 
good  many  other  authorities  to  the  same  effect." 

As  to  liability  where  defendant  had  no  reasonable  ground  to  believe  what  he  stated^ 
see  Mayer  v.  Salazar,  84  Gal.  646;  McCabe  v.  Desnoyere,  20  S.  D.  581. 

Statement  as  to  matter  of  which  obviously  defendant  could  not  have  personal  knowU 
edgCy  see:  Krause  v.  Cook,  144  Mich.  365;  Spead  v.  Tomlinson,  73  N.  H.  46. 

*  Part  of  the  statement  is  an  abridgment  of  the  report  in  6  Bingham,  396. 


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CHAP.  IV.]  FOSTER  V.  CHARLES  689 

afford  him  great  facilities  in  the  way  of  business,  and  knew  all  the 
Scotch  travellers  in  the  trade;  that  defendant  would  like  him  to  sell 
soap  for  defendant  and  his  partner,  but  feared  his  other  connections 
would  not  allow  him  time." 

The  plaintiffs  said  they  had  an  objection  to  giving  commissions;  but 
the  very  strong  recommendation  defendant  had  given  of  his  friend 
would  induce  them  to  think  of  it. 

Accordingly,  in  the  beginning  of  1825,  the  plaintiffs  employed  James 
Jacque,  the  defendant's  young  friend,  to  do  business  for  them  on  com- 
mission at  Manchester.  But  by  the  middle  of  1827,  after  repeatedly 
sending  incorrect  statements  of  the  amount  of  his  receipts  on  their 
behalf,  he  contrived  toi  be  a  defaulter  to  them  to  the  extent  of  £900 
and  upwards,  and  to  involve  them  in  bad  debts  to  a  much  greater 
amount. 

He  then  took  the  benefit  of  the  insolvent  debtors'  act. 

Instead  of  having  been  employed  in  the  Manchester  commission  tea 
trade  in  the  year  1824,  as  the  defendant  had  stated  to  the  plaintiffs,  it 
appeared  that  he  had,  at  the  reconmiendation  of  the  defendant,  been 
taken  into  partnership  without  any  capital  by  Mr.  R.  C.  Stewart,  a 
warehouseman  in  London,  in  July,  1823;  but  great  losses  having  been 
incurred  in  that  concern,  aggravated  by  a  robbery  to  some  amount, 
Mr.  Stewart  closed  the  concern  and  dissolved  the  partnership  in 
October,  1824. 

Jacque  was  then  indebted  to  Stewart  in  the  sum  of  £800,  which  he 
imdertook  by  deed,  dated  November  13, 1824,  to  pay  by  instalments, 
in  two,  three,  and  fomr  years;  but  nothing  was  ever  paid. 

All  this  was  known  to  the  defendant,  who  had  acted  throughout  for 
Jacque,  and  had  negotiated  the  terms  of  the  dissolution  of  partnership. 

Letters  were  also  put  in,  written  by  the  defendant  to  Jacque,  after 
the  exposure  of  the  Manchester  transactions,  in  which  the  defendant 
exhorted  Jacque  to  write  various  falsehoods  to  the  plaintiffs  with  a 
view  to  the  exculpation  of  the  defendant,  and  to  conceal  from  the 
plaintiffs  his  knowledge  of  some  of  the  transactions  at  Manchester. 

When  the  defendant  was  first  applied  to  on  the  subject  by  the  plain- 
tiffs, he  expressed  his  regret  that  his  house  should  have  been  the  means 
of  introducing  an  unworthy  agent  to  the  plaintiffs;  but  that  as  they 
had  been  instrumental  in  bringing  the  loss  on  the  plaintiffs,  he  would 
see  his  partner  on  the  subject,  and  see  what  could  be  done  towards 
relieving  them  from  it.  No  step  of  that  kind  having  been  taken,  the 
present  action  was  commenced. 

Tindal,  C.  J.,  told  the  jury  to  consider  whether  the  representation 
complained  of  by  the  plaintiffs  had  ever  been  made,  and  if  made, 
whether  it  was  false  within  the  knowledge  of  the  defendant;  for  imless 
it  were  false  within  his  knowledge,  the  action  did  not  he. 

The  jury  returned  a  verdict  for  the  defendant,  which  was  set  aside 
by  the  Court.    [6  Bingham,  396.] 


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690  POSTER  V.  CHARLES  [CHAP.  IV. 

Upon  a  new  trial,  Tindal,  C.  J.,  told  the  jury  that  if  the  defendant 
made  representations  concerning  Jacque,  the  tendency  of  which  was  to 
occasion  loss  to  the  plaintiff,  knowing  such  representations  to  be  false, 
and  intending  thereby  to  benefit  himself,  he  was  guilty  of  fraud  in  the 
common  acceptation  of  the  term;  if  he  made  such  representations, 
knowing  them  to  be  false,  without  proposing  thereby  any  advantage  to 
himself,  but  proposing,  perhaps,  to  benefit  a  third  person,  he  was 
guilty  of  fraud  in  the  legal  acceptation  of  the  term,  and  responsible  to 
the  plaintiff  for  any  injury  resulting  from  such  representations. 

The  jury  thereupon  found  for  the  plaintiff,  damages  £800;  but 
added:  "We  consider  there  was  no  actual  fraud  on  the  part  of 
the  defendant,  and  that  he  had  no  fraudulent  intention,  althou^ 
what  he  has  done  constituted  a  fraud  in  the  l^al  acceptation  of  the 
term." 

Jones;  Serjt.,  now  contended  that  this  amounted  to  a  verdict  for  the 
defendant;  and  therefore  moved  that  the  verdict  might  be  entered  for 
him,  instead  of  the  plaintiff. 

He  urged,  at  some  length,  nearly  the  same  arguments  as  he  had 
advanced  on  a  former  occasion,  and  adverted  to  the  same  authorities 
(see  6  Bing.  402) ;  contending  that  this  action  was  substituted  for  the 
ancient  writ  of  deceit;  that  the  gist  of  the  action  was  a  fraudulent 
intent  on  the  part  of  the  defendant  to  injure  the  plaintiff  by  deceiving 
him;  that  a  defendant  was  not  responsible  for  tike  consequences  of  a 
statement,  merely  because  he  knew  it  to  be  false;  he  was  not  respon- 
sible for  the  consequences  of  a  bare  lie;  in  order  to  render  him  respon- 
sible, it  ought  to  be  shown  that  he  intended  to  defraud  the  plaintiff 
of  something  by  the  deceit  he  had  practised.  That  if  a  party  were 
responsible  for  the  consequences  of  a  lie  told  without  any  intention 
to  defraud  the  hearer  of  something,  no  line  could  be  drawn,  and  parties 
might  be  called  on  to  answer  for  those  excusable  untruths,  which  were 
sometimes  told  for  the  purpose  of  avoiding  a  greater  mischief. 

TiNDAL,  C.  J.  No  suflScient  ground  has  been  laid  to  induce  us  to 
disturb  the  verdict  which  has  been  foimd  for  the  plaintiff.  The  appU- 
cation  arises  on  a  misconception  of  what  the  jury  have  found.  They 
first  deliver  a  verdict  for  the  plaintiff,  with  damages,  and  then  add, 
that  in  point  of  fact  they  consider  the  defendant  had  no  fraudulent 
intention,  although  he  had  been  guilty  of  fraud  in  the  l^al  acceptation 
of  the  term. 

Their  attention  had  been  drawn  by  me  to  two  classes  of  motives 
possible  on  the  part  of  the  defendant;  first,  a  desire  to  benefit  himself 
by  making  a  statement  which  he  knew  to  be  false;  secondly,  a  desire 
to  benefit  some  third  person;  and  I  stated  that,  although  there  might 
be  no  intention  on  Ins  part  to  obtain  an  advantage  for  himself,  it 
would  still  be  a  fraud,  for  which  he  was  responsible  in  law,  if  he  made 
representations  productive  of  loss  to  another,  knowing  such  represen- 
tations to  be  false. 


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CHAP.  IV.]  POSTER  V.  CHARLES  591 

The  jury  in  finding  that  he  had  no  intention  to  defraud  mean  only 
that  he  was  not  actuated  by  the  baser  motive  of  obtaining  an  advan- 
tage for  himself  y  but  that  he  was  guilty  of  fraud  in  law  by  stating  that 
which  he  knew  to  be  false,  and  which  was  the  cause  of  loss  to  the 
plaintiff. 

The  question,  therefore,  is,  whether,  if  a  party  makes  representa-^ 
tions  which  he  knows  to  be  false,  and  occasions  injury  thereby,  he  is 
not  liable  for  the  consequences  of  his  falsehood. 

It  would  be  most  dangerous  to  hold  that  he  is  not. 

The  confusion  seems  to  have  arisen  from  not  distinguishing  between 
what  is  fraud  in  law  and  the  motives  for  actual  fraud.  It  is  fraud  in 
law  if  a  party  makes  representations  which  he  knows  to  be  false,  and 
injury  ensues,  although  the  motive  from  which  the  representations 
proceeded  may  not  have  been  bad;  the  person  who  makes  such  repre- 
sentations is  responsible  for  the  consequences;  and  the  verdict,  there- 
fore, in  this  case  ought  not  to  be  disturbed. 

Park,  J.  I  am  of  the  same  opinion.  In  what  fell  from  this  Court 
in  the  case  of  Tapp  v.  Lee,  and  upon  the  former  decision  of  the  present 
case,  the  doctrine  has  been  laid  down  most  accurately.  It  would  be 
unfair  to  take  the  expressions  of  the  jury,  without  connecting  them 
with  what  the  Chief  Justice  had  just  presented  for  their  conmderation. 
It  is  clear  that  the  jury  meant  to  draw  the  distinction  between  the 
sordid  motive  of  personal  advantage  and  the  legal  fraud  which  might 
be  committed  by  a  representation  false  within  the  knowledge  of  the 
speaker,  althou^  made  without  any  view  to  his  own  advantage.  For 
such  a  representation  the  defendant  is  responsible  if  mischief  ensues, 
whatever  may  have  been  his  motive;  and  as  to  its  being  necessary  to 
prove  the  motive  by  whicK  he  was  actuated:  when  the  case  was  last 
before  the  Comt,  Tindal,  C.  J.,  said, "  I  am  not  aware  of  any  authority 
for  such  a  position,  nor  that  it  can  be  material  what  the  motive  was; 
the  law  will  infer  an  improper  motive,  if  what  the  defendant  says  is 
false  within  his  own  knowledge,  and  is  the  occasion  of  damage  to  the 
plaintiff." 

Here  the  defendant  said  ''  That  his  friend  was  so  excellent  a  yoimg 
man,  that  he  would  rather  trust  him  without  security  than  most  men 
with;  "  when  he  knew  the  contrary  to  be  the  fact,  he  was  guilty  of 
a  fraud  in  law  in  making  such  a  representation;  and  fraud  in  law  is 
suflScient  to  support  this  action. 

Gaselee,  J.  When  this  verdict  is  taken  in  connection  with  the  di- 
rection of  the  Chief  Justice,  there  is  an  end  to  all  doubt  as  to  the 
meaning  of  the  jury,  and  the  finding  is  a  perfect  finding.  What  the 
jury  meant  by  actual  fraud  was  a  sordid  r^ard  to  self-interest;  but 
the  legal  fraud,  which  is  sufficient  to  sustain  the  action,  was  complete 
when  the  intention  to  mislead  was  followed  by  actual  injury. 

BosANQUET,  J.  There  seems  to  me  to  be  no  reason  for  disturbing 
this  verdict.    In  the  course  of  the  trial,  it  is  probable  that  improper 


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692  POLHILL  V.  WALTER  [CHAP.  IV. 

motives  had  been  ascribed  to  the  defendant.  The  Chief  Justice,  there- 
fore, stated  to  the  jury,  and  stated  correctly,  that  motives  of  that  de- 
scription in  the  defendant  were  not  essential  to  the  plaintiff's  action. 
If  a  person  tells  a  falsehood,  the  natural  and  obvious  consequence  of 
which,  if  acted  on,  is  injury  to  another,  that  is  fraud  in  law.  Coupling 
that  with  what  the  Chief  Justice  addressed  to  the  jury,  their  verdict 
only  means  that  the  defendant  did  not  propose  to  benefit  himself,  per- 
haps intended  to  benefit  another;  but  that  what  he  said,  intending  to 
benefit  another,  was  false  within  his  own  knowledge,  injurious  to  the 
party  who  received  the  communication,  and,  consequently,  a  fraud  in 
the  legal  acceptation  of  the  term.  Rtde  r^tised} 


POLHILL  V.  WALTER 

In  the  King's  Bench,  January  20, 1832. 

Reported  in  3  BamewaU  A  Adolphtts,  114. 

Lord  Tentbrdbn,  C.  J.*  In  this  case,  in  which  the  defendant  ob- 
tained a  verdict  on  the  trial  before  me  at  the  sittings  after  Hilary 
Term,  a  rule  nisi  was  obtained  to  enter  a  verdict  for  the  plaintiff,  and 
cause  was  shown  during  the  last  term.  The  declaration  contained  two 
coimts:  the  first  stated,  that  a  foreign  bill  of  exchange  was  drawn  on^ 
a  person  of  the  name  of  Hancome,  and  that  the  defendant  falsely," 
fraudulently,  and  deceitfully  did  represent  and  pretend  that  he  was 
duly  authorized  to  accept  the  bill  by  the  procuration,  and  on  behalf 
of  Hancome,  and  did  falsely  and  fraudulently  pretend  to  accept  the 
same  by  the  procuration  of  Hancome.  It  then  proceeded  to  all^e 
several  indorsements  of  the  bill,  and  that  the  plaintiff,  relying  on  the 
pretended  acceptance,  and  beUeving  that  the  defendant  had  authority 
from  Hancorne  to  accept,  received  the  bill  from  the  last  indorsee  in 
discharge  of  a  debt;  that  the  bill  was  dishonored,  and  that  the  plain- 
tiff brought  an  unsuccessful  action  against  Hancome.  The  second 
count  contained  a  similar  statement  of  the  false  representation  by  the 
defendant,  and  that  he  accepted  the  bill  in  writing  under  pretence  of 
the  procuration  from  Hancome;  and  then  proceeded  to  describe  the 
indorsements  to  the  plaintiff,  and  the  dishonor  of  the  bill,  and  alleged, 
that  thereupon  it  became  and  was  the  duty  of  the  defendant  to  pay  the 
bill  as  the  acceptor  thereof,  but  that  he  had  not  done  so. 

1  Hindman  v.  First  Nat.  Bank,  (C.  C.  A.)  112  Fed.  931:  Hart  v.  Tallmadge,  2 
Day,  381;  Young  v.  Hall,  4  Ga.  95;  Endsley  v.  Johns,  120  111.  469;  Leonard  v. 
Springer,  197  111.  532;  Skeels  w.  Porter,  166  la.  265;  Carpenter  v.  Wright,  52 
Kan.  221 :  Bean  v.  Herrick,  12  Me.  262;  Page  v.  Bent,  2  Met.  371;  Stoney  Creek 
Woolen  Co.  v.  Smalley,  111  Mich.  321:  Busterud  v.  Farrington,  36  Minn.  320; 
Brownlee  v,  Hewitt,  1  Mo.  App.  360;  Bingham  v.  Fish,  86  N.  J.  Law,  316;  White 
i;.  Merritt,  7  N.  Y.  352:  Hubbard  v.  Briggs,  31  N.  Y.  518;  Carpenter  v.  Lee,  6 
Yerg.  265;  Paddock  v.  Fletcher,  42  Vt.  389  Accord. 

'  Statement  of  facts  and  arguments  of  counsel  omitted. 


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CHAP.  IV.]  POLHILL  V.  WALTER  593 

On  the  trial  it  appeared,  that  when  the  bill  was  presented  for  accept- 
ance by  a  person  named  Armfield,  who  was  one  of  the  payees  of  the 
bill,  Hancome  was  absent;  and  that  the  defendant,  who  lived  in  the 
same  house  with  him,  was  induced  to  write  on  the  bill  an  acceptance 
as  by  the  procuration  of  Hancome,  Armfield  assuring  him  that  the 
bill  was  perfectly  regular,  and  the  defendant  fully  beUeving  that 
the  acceptance  would  be  sanctioned,  and  the  bill  paid  at  maturity,  by 
the  drawee.  It  was  afterwards  passed  into  the  plaintiflf's  hands,  and 
being  dishonored  when  due  an  action  was  brought  against  Hancome; 
the  defendant  was  called  as  a  witness  on  the  trial  of  that  action,  and  he 
negativing  any  authority  from  Hancome,  the  plaintiff  was  nonsuited. 
I  left  to  the  jury  the  question  of  deceit  and  fraud  in  the  defendant, 
as  a  question  of  fact  on  the  evidence,  and  the  jury  having  negatived  all 
fraud,  the  defendant  had  a  verdict,  liberty  being  reserved  to  the  plain- 
tiff to  move  to  enter  a  verdict,  if  the  Court  should  think  the  action 
maintainable  notwithstanding  that  finding. 

On  the  argument,  two  points  were  made  by  the  plaintiff's  counsel. 
It  was  contended,  in  the  first  place,  that  although  the  defendant  was 
not  guilty  of  any  fraud  or  deceit,  he  might  be  made  liable  as  acceptor 
of  the  bill;  that  the  second  count  was  applicable  to  that  view  of  the 
case;  and  that,  after  rejecting  the  allegations  of  fraud  and  falsehood 
in  that  count,  it  contained  a  sufScient  statement  of  a  cause  of  action 
afeainst  him,  as  acceptor.  But  we  are  clearly  of  opinion  that  the  de- 
fendant cannot  be  made  responsible  in  that  character.  It  is  enough  to 
say  that  no  one  can  be  liable  as  acceptor  but  the  person  to  whom  the 
bill  is  addressed,  unless  he  be  an  acceptor  for  honor,  which  the 
defendant  certainly  was  not. 

This  distinguishes  the  present  case  from  that  of  a  pretended  agent 
making  a  promissory  note  (referred  to  in  Mr.  Roscoe's  Digest  of  the 
Law  of  Bills  of  Exchange,  note  9,  p.  47),  or  purchasing  goods  in  the 
name  of  a  supposed  principal.  And,  indeed,  it  may  well  be  doubted  if 
the  defendant,  by  writing  this  acceptance,  entered  into  any  contract  or 
warranty  at  all,  that  he  had  authority  to  do  so;  and  if  he  did,  it  would 
be  an  insuperable  objection  to  an  action  as  on  a  contract  by  this  plain- 
tiff, that  at  all  events  there  was  no  contract  with,  or  warranty  to  him. 

It  was  in  the  next  place  contended  that  the  allegation  of  falsehood 
and  fraud  in  the  first  count  was  supported  by  the  evidence;  and  that, 
in  order  to  maintain  this  species  of  action,  it  is  not  necessary  to  prove 
that  the  false  representation  was  made  from  a  cormpt  motive  of  gain 
to  the  defendant,  or  a  wicked  motive  of  injury  to  the  plaintiff;  it  was 
said  to  be  enough  if  a  representation  is  made  which  the  party  making 
it  knows  to  be  imtme,  and  which  is  intended  by  him,  or  which,  from 
the  mode  in  which  it  is  made,  is  calculated  to  induce  another  to  act  on 
the  faith  of  it,  in  such  a  way  as  that  he  may  incur  damage,  and  that 
damage  is  actually  incurred.  A  wilful  falsehood  of  such  a  nature  was 
contended  to  be,  in  the  legal  sense  of  the  word,  a  fraud;  and  for  this 


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594  POLHILL  V.  WALTER  [CHAP.  IV. 

» 

position  was  cited  the  case  of  Foster  v.  Charles,  6  Bing.  396;  7  Bing. 
106,  which  was  twice  under  the  consideration  of  the  Court  of  Common 
Pleas,  and  to  which  may  be  added  the  recent  case  of  Corbet  v.  Brown, 
8  Bing.  33.  The  principle  of  these  cases  appears  to  us  to  be  well 
founded,  and  to  apply  to  the  present. 

It  is  true  that  there  the  representation  was  made  immediately  to  the 
plaintiflf,  and  was  intended  by  the  defendant  to  induce  the  plaintiff  to 
do  the  act  which  caused  him  damage.  Here,  the  representation  is  made 
to  all  to  whom  the  bill  may  be  offered  in  the  course  of  circulation,  and 
is,  in  fact,  intended  to  be  made  to  all,  and  the  plaintiff  is  one  of  those; 
and  the  defendant  must  be  taken  to  have  intended,  that  all  such  per- 
sons should  give  credit  to  the  acceptance,  and  thereby  act  upon  the 
faith  of  that  representation,  because  that,  in  the  ordinary  course  of 
busine;^,  is  its  natural  and  necessary  result. 

If,  tiien,  the  defendant,  when  he  wrote  the  acceptance,  and  thereby, 
in  substance,  represented  that  he  had  authority  from  the  drawee  to 
make  it,  knew  that  he  had  no  such  authority  (and  upon  the  evidence 
there  can  be  no  doubt  that  he  did),  the  representation  was  untrue  to 
his  knowledge,  and  we  think  that  an  action  will  lie  against  him  by  the 
plaintiff  for  the  damage  sustained  in  consequence. 

If  the  defendant  had  had  good  reason  to  beUeve  his  representation 
to  be  true,  as,  for  instance,  if  he  had  acted  upon  a  power  of  attorney 
which  he  supposed  to  be  genuine,  but  which  was,  in  fact,  a  forgery,  he 
would  have  incurred  no  liability,  iFor  he  would  have  made  no  statement 
which  he  knew  to  be  false:  a  case  very  different  from  the  present,  in 
which  it  is  clear  that  he  stated  what  he  knew  to  be  untrue,  though  with 
no  corrupt  motive. 

It  is  of  the  greatest  importance  in  all  transactions  that  the  truth 
should  be  strictly  adhered  to.  In  the  present  case,  the  defendant  no 
doubt  believed  that  the  acceptance  would  be  ratified,  and  the  bill  paid 
when  due,  and  if  he  had  done  no  more  than  to  make  a  statement  of 
that  belief,  according  to  the  strict  truth,  by  a  memorandum  appended 
to  the  bin,  he  would  have  been  blameless.  But  then  the  bill  would 
never  have  circulated  as  an  accepted  bill,  and  it  was  only  in  conse- 
quence of  the  false  statement  of  the  defendant  that  he  actually  had 
authority  to  accept,  that  the  bill  gained  its  credit,  and  the  plaintiff 
sustained  a  loss.  For  these  reasons  we  are  of  opinion  that  the  rule 
should  be  made  absolute  to  enter  a  verdict  for  the  plaintiff. 

Rule  absoluie.^ 

>  See  West  London  Bank  t>.  Kitson,  13  Q.  B.  D.  360:  National  Bank  v,  Kershaw 
OU  Mill,  (C.  C.  A.)  202  Fed.  90.    Compare  Tackey  v,  McBain,  [1912]  A,  C.  186. 


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CHAP.  IV.]  ALDEN  V.  WBIGHT  596 

BUTTERFIELD  v.  BARBER 

Supreme  Court,  Rhode  Island,  Mat  16, 1897. 

Reported  in  20  Rhode  Island  Reports,  99. 

Case  for  deceitful  representations  by  a  debtor  to  his  creditor,  the 
plaintiff  having  subsequently  purchased  the  claim  from  the  latter  in 
the  form  of  a  promissory  note.  Heard  on  defendant's  petition  for 
new  trial. 

Per  Curiam.  Assuming  that  the  representations  testified  to  by  the 
plaintiff  were  made  by  the  defendant,  the  testimony  shows  that  they 
were  made  for  the  purpose  of  being  conmiunicated  to  Murphy,  to  pro- 
cure an  extension  of  time  for  the  pa3rment  of  his  claim  against  the 
defendant.  At  the  time  they  were  made  the  defendant  had  no  expec- 
tation that  the  note,  which  was  subsequently  made,  was  to  be  taken 
by  the  plaintiff,  who,  in  the  meantime,  had  purchased  the  claim  from 
Murphy.  We  do  not  think  that  in  these  circumstances  the  plaintiff 
had  the  right  to  rely  on  the  representations,  if  they  were  made,  be- 
cause they  were  not  made  with  the  intention  of  inducing  his  action, 
and  consequently  that  he  has  no  ground  to  maintain  an  action  for 
deceit. 

Case  remitted  to  the  Conmion  Pleas  Division,  with  direction  to 
enter  judgment  for  the  defendant  for  costs.^ 


ALDEN  V.  WRIGHT 

SuPREBiE  Court,  Minnesota,  September  30, 1891. 

Reported  in  47  Minnesota  Reports,  225. 

Action  for  deceit  in  the  exchange  of  real  property  for  shares  of 
corporate  stock.  Plaintiff  allied  fraudulent  representations  on  the 
part  of  defendants  as  to  the  value  of  the  shares,  whereby  he  was  in- 
duced to  make  the  exchange.  Trial.  Verdict  for  defendants.  Plain- 
tiff appealed  from  an  order  denying  a  new  trial.' 

1  lasigi  V.  Brown,  17  How.  183;  Bank  of  Montreal  v.  Thayer,  7  Fed.  622; 
Merchants  Nat.  Bank  v.  Armstrong,  65  Fed.  932;  Hindman  v.  First  Nat.  Bank, 
(C.  C.  A.)  08  Fed.  662, 112  Fed.  931;  Western  Tel.  Co.  v,  Schriver,  141  Fed.  538; 
Harrison  v.  Savage,  19  Ga.  310;  Slade  v.  Little,  20  Ga.  371;  Hunnewell  v.  Dux- 
bury,  154  Mass.  286;  Nash  v.  Minnesota  Title  &  Trust  Co.,  159  Mass.  437;  Raw- 
lings  V,  Bean,  80  Mo.  614;  Lembeck  e;.  Gerken,  88  N.  J.  Law,  329:  McCracken  v. 
West,  17  Ohio,  16;  Wells  v.  Cook,  16  Ohio  St.  67  Accord.  But  see  Merchants  Nat. 
Bank  v.  Robison,  8  Utah,  256. 

Person  or  member  of  a  dass  to  whom  defendant  expected  the  representation  to  be 
passed  on.  see  Shrewsbury  v.  Blount.  2  Man.  &  Or.  475;  Gerhara  v.  Bates,  2  E.  <& 
B.  476;  Bedford  v.  Bagshaw,  4  H.  A  N.  538;  Scott  v.  Brown,  [1892]  2  Q.  B.  724; 
Andrews  v.  Mockford, Tl8961 1  Q.  B.  372*  Warfield  v.  Clark,  118  la.  69;  Wells  v. 
Western  Tel.  Co.,  144  la.  605;  Henry  v.  Dennis,  95  Me.  24;  Chubbuck  v.  Cleve- 
land, 37  Minn.  466;  Baker  v.  Crandall,  78  Mo.  584;  Stuart  v.  Bank  of  Staple- 
hurst,  57  Neb.  569;  Addington  v.  Allen,  11  Wend.  374;  Hadcock  v.  Osmer,  153 
N.  Y.  604;  Cazeaux  v.  Mali,  25  Barb.  578;  Converse  v.  Sickles,  16  App.  Div.  49. 

>  Statement  abridged.    Part  of  opinion  omitted. 


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596  ALDEN  V.  WRIGHT  [CHAP.  IV. 

Collins,  J.  .  .  . 

2.  At  defendants*  request  the  court  charged  the  jury,  in  substance, 
that  they  must  find  for  defendants,  unless  it  appeared  by  a  prepon- 
derance of  testimony  that  the  property  conveyed  by  plaintiff  in  ex- 
change for  the  shares  of  stock  was  worth  more  than  the  latter;  and 
to  this  plaintiff  excepted,  on  the  ground  that  it  prevented  the  jury 
from  returning  a  verdict  in  his  favor  for  nominal  damages;  that,  even 
if  the  jury  should  fail  to  find  that  the  property  conveyed  by  plaintiff 
was  of  greater  value  than  the  shares  of  stock  transferred  to  him,  — 
passing  on  all  other  questions  in  his  favor,  —  they  might  award  him 
nominal  damages  at  least;  and  that  the  possibility  of  such  an  award 
was  excluded  by  the  charge.  But,  at  plaintiff's  request,  the  jury  was 
instructed  that,  if  they  found  for  him,  the  amount  he  would  be  entitled 
to  recover  would  be  the  amoimt  of  the  difference  between  the  actual 
value  of  the  property  which  he  conveyed  and  the  actual  value  of  the 
stock  received  by  him.  The  rule  as  to  the  measure  of  damages  in  the 
case  was  stated  in  better  form  in  plaintiff's  than  in  defendants'  request, 
but  one  was,  in  effect,  a  repetition  of  the  other.  The  rule  was  correctly 
stated  in  each,  and  the  same  proposition  of  law  was  elsewhere  in  the 
charge  laid  down  by  the  court  in  very  concise  and  proper,  but  different, 
language.  The  essential  elements  which  constitute  a  cause  of  action 
for  deceit  are  well  stated  in  Busterud  v.  Farrington,  36  Minn.  320  (31 
N.  W.  Rep.  360),  and  one  is  that  the  party  induced  to  act  has  been 
damaged.  He  must  have  acted  on  the  faith  of  the  false  representations 
to  his  damage.  A  party  cannot  sustain  an  action  of  this  character  where 
no  harm  has  come  to  him.  Deceit  and  injury  must  concur,  —  Doran 
V.  Eaton,  40  Minn.  35  (41  N.  W.  Rep.  244) ;  —  or,  as  it  has  frequently 
been  put  by  the  courts,  fraud  without  damage  or  damage  without 
fraud  will  not  sustain  the  action  for  deceit.  Taylor  v.  Guest,  58  N.  Y. 
262;  Nye  v,  Merriam,  35  Vt.  438;  Freeman  v.  McDaniel,  23  Ga.  354; 
Byard  v.  Holmes,  34  N.  J.  Law,  296;  3  Suth.  Dam.  594;  Cooley, 
Torts,  474;  Bailey,  Onus  Probandi,  770.  If,  therefore,  the  shares  of 
stock  were  worth  what  plaintiff  gave  for  them,  were  of  equal  value 
with  the  property  exchanged,  the  plaintiff  was  not  damaged,  and  was 
not  entitled  to  recover;  for  the  proper  measure  of  damages  was  the 
difference  in  value  between  the  shares  of  stock  and  the  property  con- 
veyed by  plaintiff  for  them.  Redding  v.  Godwin^  44  Minn.  355  (46 
N.  W.  Rep.  563),  and  cases  cited.  The  plaintiff,  under  such  a  rule, 
would  not  be  permitted  to  recover  nominal  damages  even  without 
proof  of  loss  or  injury,  and  there  is  nothing  saia  in  Potter  v.  Mellen, 
36  Minn.  122  (30  N.  W.  Rep.  438),  as  counsel  has  contended,  indicat- 
ing a  contrary  view.  Damage  is  of  the  essence  of  the  action  of  deceit; 
an  essential  element  to  the  right  of  action,  and  not  merely  a  conse- 
quence flowing  from  it.  Order  affirmed.^ 

»  In  Allaire  v,  Whitney,  1  Hill,  484,  487,  Cowen,  J.,  says  that  actual  damage 
is  not  necessary  to  an  action  for  fraud;  and  see  also  Inpraham,  J.,  in  Isman  v. 
Loring,  130  App.  Div.  846.    The  same  doctrine  is  stated  in  Northrop  v.  Hill,  67 


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CHAP.  IV.]  FREEMAN  V.  VENNER  697 

FREEMAN  v.  VENNER 

Supreme  Judicial  Court,  Massachusetts,  June  23^  1876. 
Reported  in  120  MasaackuaetU  Reports,  424. 

Action  of  tort.  Writ  dated  Dec.  22,  1873.  Plaintiff  held  the  negotiable 
promissory  note  of  J.  W.  and  J.  H.  Cox,  dated  July  16, 1873,  payable  to  plain- 
tiff or  order  in  two  years  from  date;  and  he  also  held  a  mortgage  conditioned 
to  secure  the  note.  In  consideration  of  land  to  be  conveyed  to  him  by  the 
defendant,  plaintiff  agreed  to  assign  to  defendant  the  mortgage  and  note;  but 
he  did  not  agree  to  make  an  unrestricted  indorsement  of  the  note,  and  the  de- 
fendant was  not  entitled  to  have  the  personal  liability  of  the  plaintiff  as  in- 
dorser  of  the  note.  Plaintiff,  through  ignorance  of  the  law,  and  by  reason  of 
the  false  and  fraudulent  representations  of  defendant,  on  Dec.  1,  1873,  in- 
dorsed the  note  in  blank  without  any  qualification.  As  soon  as  the  plaintiff 
became  aware  of  the  obligation  he  had  thus  assumed,  and  before  defendant 
had  negotiated  the  note  or  altered  his  position  in  any  way,  plaintiff  demanded 
to  be  allowed  to  qualify  his  indorsement  so  that  it  should  merely  transfer  the 
title  according  to  the  agreement.  Defendant  refused  to  allow  this.  There- 
upon plaintiff  forbade  defendant  to  negotiate  the  note;  but  defendant,  not- 
withstanding, negotiated  the  note  before  maturity  to  one  Tenney,  a  bona  fide 
holder  for  value. 

Upon  a  trial  by  a  judge,  without  a  jury,  the  foregoing  facts  were  found,  sub- 
stantially as  alleged  in  the  declaration.     • 

It  also  appeared,  that,  before  commencing  his  action,  or  at  any  time  before 
said  trial,  the  plaintiff  had  made  no  pa3^ment  on  account  or  by  reason  of  the 
indorsement;  that,  before  the  commencement  of  this  action  and  before  the 
maturity  of  the  note,  the  makers  thereof  had  become  bankrupts;  that  since 
the  commencement  a  semi-annual  instabnent  of  interest  had  become  due; 
that  Tenney  had  caused  the  real  estate  to  be  sold  by  virtue  of  the  power  con- 
tained in  the  mortgage,  had  applied  a  part  of  the  proceeds  of  the  sale  in  liqui- 
dation of  that  interest,  and,  since  the  maturity  of  the  note,  had  applied  the 
balance  of  the  proceeds  in  part  pa3anent  of  the  note,  and  had  conunenced  an 
action  against  the  plaintiff  to  recover  the  balance  of  said  note  (due  demand 
having  been  made  and  notice  given),  which  action  is  now  pending. 

N.  Y.  351 ;  and  in  Van  Velsor  v.  Seaberger,  35  111.  App.  598;  but  neither  case  was 
one  of  merely  nominal  damages.  Leadbetter  v,  Morris,  3  Jon^  Law,  543,  sustains 
the  view  of  Cowen,  J.  The  doctrine  of  Cowen,  J.,  in  Allaire  v.  Whitney  is  also  cited 
approvingly  in  1  Sedgwick  on  Damages,  8th  ed.,  §  101,  and  in  1  Sutherland  on 
Damages,  3ied.,  §  10.  ' 

But  the  great  weight  of  authority  is  against  this  doctrine,  and  accords  with  the 
view  taken  by  the  Minnesota  court  in  the  above  case  of  Alden  v.  Wright:  viz,, 
that  an  action  of  deceit  cannot  be  maintained  in  the  absence  of  actual  damage. 
See  Pollock,  Torts,  9  ed.,  190,  291;  Pollock,  Law  of  Fraud  in  British  India,  22,  23; 
1  Jaggard,  Torts,  600,  601;  Pigott,  Torts,  270,  271;  McCarrel  v.  Hayes,  186  Ala. 
323;  \Vinkler  v.  Jemie,  20  Cal.  App.  555;  Morrison  v.  Martin,  84  Conn.  628; 
Wesselhoeft  v.  Schanze,  153  111.  App.  443;  Bailey  v.  Oatis,  85  Kan.  339;  Barnard 
V.  Napier,  167  Ky.  824-  Reynolds  v.  Evans,  123  Md.  365;  Brackett  v.  Perry,  201 
Mass.  502;  Tregner  v.  Hazen,  116  App.  Div.  829;  Badger  v.  Pond,  120  App.  Div. 
619. 

Compare  Skowhegan  Bank  v.  Maxfield,  83  Me.  576  (fraudulently  inducing 
plaintififto  pay  debts) ;  Garry  v.  Garrjr.  187  Mass.  62  (inducing  release  of  inchoate 
right  of  dower);  Urtz  v.  New  York  R.  Co.,  202  N.  Y.  170  (release  of  disputed 
claim). 


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598  LUETZKE  V.  ROBERTS  [CHAP.  IV. 

Defendant  requested  the  judge  to  rule  that;  upon  the  foregoing  facts  the 
plaintiff  could  not  maintain  his  action,  but,  if  he  could,  that  he  was  entitled 
to  recover  only  nominal  damages.  The  judge  declined  so  to  rule,  and  held 
that  defendant  was  liable  for  the  conversion  of  the  note,  and  that  the  measure 
of  the  plaintiff's  damages  was  the  amount  which  the  plaintiff  was  legally  com- 
pellable to  pay  to  the  holder  of  the  note,  namely,  the  face  of  the  note  and  in- 
terest, less  the  amount  realized  from  the  sale  under  the  mortgage,  treating  the 
same  as  a  partial  payment.    Defendant  excepted.^ 

Colt,  J.  [After  deciding  that  there  was  no  conversion  of  the  note.]  The 
further  objection  is,  that  treating  this  as  an  action  to  recover  damages  for  an 
alleged  fraud,  the  plaintiff  shows  no  damages  sustained  at  the  time  his  action 
was  commenced.  It  was  then  uncertain  and  contingent  whether  he  would 
ever  be  called  on  to  pay  the  note.  It  was  payable  to  the  plaintiff  or  order  in 
two  years,  and  was  dated  in  July,  1873,  shortly  before  its  transfer  by  his  in- 
dorsement to  the  defendant.  TTie  liability  of  the  plaintiff  depended  on  the 
failure  of  the  makers  to  pay  and  the  giving  of  due  notice  to  him  as  indorser. 
No  payment  has  in  fact  ever  been  made  by  him.  If  the  holder  receives  his  pay 
from  the  makers  through  the  mortgage  security  or  otherwise,  the  plaintiff  will 
have  suffered  no  actionable  wrong.  There  will  have  been  no  concurrence  of 
damage  with  fraud,  within  the  rule  on  which  such  actions  are  founded.  And 
as  there  has  been  no  invasion  of  the  plaintiff's  rights,  no  breach  of  promise, 
and  no  interference  with  his  property,  there  can  be  no  recovery  of  even  nomi- 
nal damages  in  this  action.  Pasley  v.  Freeman,  3  T.  R.  51;  2  Smith  Lead. 
Cas.  (6th  Am.  ed.)  157,  and  notes.  Exceptums  ausUnned.* 


LUETZKE  V.  ROBERTS 

Supreme  Court,  Wisconsin,  December  4, 1906. 

Reported  in  130  Wiscarmn  ReporUy  97,  106. 

[Plaintiffs,  by  fraudulent  representations  of  defendants,  were  induced  to 
execute  promissory  notes  to  defendants.  Upon  a  proceeding  to  cancel  and 
annul  the  notes,  it  appeared  that  the  notes  had  been  transferred  to,  and  were 
then  held  by,  bona  fide  purchasers  for  value;  and  hence  could  not  be  de- 
creed to  be  cancelled.  It  was  held^  that  the  court  having  jurisdiction  of  the 
defendants  personally,  had  power  to  render  judgment  for  damages.  The 
opinion  then  proceeds  as  follows:  — ]  * 

SiEBECKER,  J.  It  is  Urged  that  compensatory  damages  cannoti)e  awarded 
because  they  are  not  ascertainable  under  the  facts  found,  and  that  plaintiffs 
must  wait  until  they  have  made  actual  pa3rment  of  the  notes.  This  contention 
cannot  be  sustained.  The  court  properly  held  that  these  notes  in  the  hands  of 
bona  fide  purchasers  for  value  established  a  liability  according  to  their  terms 
against  these  plaintiffs,  and  that  such  liability  was  measured  by  the  amount 

'  Statement  abridged.     Part  of  opinion  omitted. 

*  In  re  Pennewell,  119  Fed.  139:  Kimmans  v.  Chandler,  13  la.  327:  Dunn  ». 
Bishop.  (R.  I.)  90  Atl.  1073  Accord,  Compare  Van  Vliet  Automobile  Co.  v,  Cro- 
well,  (la.)  149  N.  W.  861. 

'  A  new  statement  has  been  made  covering  but  one  point  and  only  the  portion 
of  the  opinion  relatiQg  to  that  point  is  given. 


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CHAP.  rV.]  POTTLER  V.  MOSELEY  59d 

they  call  for  on  their  face  with  interest.  We  deem  this  the  correct  measure 
of  damages  in  the  case,  and  within  the  principle  of  the  case  of  Lyle  v.  McCor- 
mick  H.  M.  Co.,  108  Wise.  81,  84  N.  W.  18.^ 


FOTTLER  V.  MOSELEY 

Supreme  Judicial  Court,  Massachusetts,  June  18, 1901. 

Reported  in  179  Massachueetts  Reports,  296. 

Tort  for  deceit,  alleging  that,  relying  upon  the  false  and  fraudulent  repre- 
sentations of  the  defendant,  a  broker,  that  certain  sales  of  the  stock  of  the 
Franklin  Park  Land  Improvement  Company  in  the  Boston  Stock  Exchange 
from  January  1,  to  March  27, 1893,  were  genuine  transactions,  the  plaintiff  r^ 
voked  an  order  for  the  sale  of  certain  shares  of  that  stock  held  for  him  by  the 
defendant,  whereby  the  plaintiff  suffered  loss.  Writ  dated  February  17, 
1896.2 

At  the  trial  in  the  Superior  Court,  Hopkins,  J.,  at  the  close  of  the  evidence, 
directed  the  jury  to  return  a  verdict  for  the  defendwit.  The  verdict  was  r^ 
turned  as  directed;  and  the  plaintiff  alleged  exceptions.  The  findings  war- 
ranted by  the  evidence  are  stated  in  the  opinion  of  the  court. 


Hammond,  J.  The  parties  to  this  action  testified  in  flat  contradiction  of 
each  other  on  many  of  the  material  issues,  but  the  evidence  in  behalf  of  the 
plaintiff  would  warrant  a  finding  by  the  jury,  that  on  March  26,  1893,  the 
plaintiff,  being  then  the  owner  of  certain  shares  of  stock  in  the  Franklin  Park 
Land  and  Improvement  Company,  gave  an  order  to  the  defendant,  a  broker 
who  was  carrying  the  stock  for  him  on  a  margin,  to  sell  it  at  a  price  not  less 
than  $28.50  per  share;  that  on  March  27  the  defendant,  for  the  purpose  of 
inducing  the  plaintiff  to  withdraw  the  order  and  refrain  from  selling,  repre- 
sented to  the  plaintiff  that  the  sales  which  had  been  made  of  said  stock  in  the 
market  had  all  been  made  in  good  faith  and  had  been  "  actual  true  sales 
throughout ";  that  these  statements  were  made  as  of  the  personal  knowledge 
of  the  defendant,  and  that  the  plaintiff,  believing  them  to  be  true  and  relying 
upon  them,  was  thereby  induced  to  and  did  cancel  his  oral  order  to  the  defend- 
ant to  sell,  and  did  refrain  from  selling;  and  that  the  statements  were  not  true, 
as  to  some  of  the  sales  in  the  open  market,  of  which  the  last  was  in  December, 
1892,  and  that  the  defendant  knew  it  at  the  time  he  made  the  representations. 
The  evidence  would  warrant  a  further  finding  that  in  continuous  reliance  upon 
such  representations  the  plaintiff  kept  his  stock,  when  he  otherwise  would 
have  sold  it,  until  the  following  July,  when  its  market  value  depreciated,  and 
he  thereby  suffered  loss.  The  defendant,  protesting  that  he  made  no  such 
representation  and  that  the  jury  would  not  be  justified  in  finding  that  he  had, 
says  that  even  upon  such  a  finding  the  plaintiff  would  have  no  case.  He  con- 
tends that  the  representation  was  not  material,  that  a  false  representation  to 
be  material  must  not  only  induce  action  but  must  be  adequate  to  induce  it  by 

»  Ely  V,  Stannard,  46  Conn.  124;  Goring  v.  Fitzgerald,  105  la.  507;  Brings  v. 
Brushaber,  43  Mich.  330;  Currier  v.  Poor,  155  N.  Y.  344;  Hoffman  v.  Toft,  70 
Or.  488  Accord, 

See  Conway  Bank  v.  Pease,  76  N.  H.  319. 

*  Statement  abridged. 


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600  FOTTLER  V.  MOSELEY  [CHAP.  IV. 

offering  a  motive  sufficient  to  influence  the  conduct  of  a  man  of  average  intelli- 
gence and  prudence,  and  that  in  this  case  the  representation  complained  of,  so 
far  as  it  was  false,  was  not  adequate  to  induce  action  because  the  fictitious 
sales  were  so  few  and  distant  in  time,  and  that  therefore  it  was  not  material. 

It  may  be  assumed  that  the  plaintiff  desired  to  handle  his  stock  in  the 
manner  most  advantageous  to  himself,  and  that  the  question  whether  he 
would  withdraw  his  order  to  sell  was  dependent,  somewhat,  at  least,  upon  his 
view  of  the  present  or  future  market  value  of  the  stock;  and  upon  that  ques- 
tion a  man  of  ordinary  intelligence  and  prudence  would  consider  whether  the 
reported  sales  in  the  market  were  "  true  sales  throughout "  or  were  fictitious, 
and  what  was  the  extent  of  each.  It  is  true  that  a  corporation  may  be  of  so 
long  standing  and  of  such  a  nature,  and  the  number  of  the  shares  so  great  and 
the  daily  sales  of  the  stock  in  the  open  market  so  many  and  heavy,  that  the 
knowledge  that  a  certain  percentage  of  the  sales  reported  are  not  actual  busi- 
ness transactions  would  have  no  effect  upon  the  conduct  of  an  ordinary  man. 
On  the  other  hand  a  corporation  may  be  so  small  and  of  such  a  nature  and 
have  so  slight  a  hold  upon  the  public,  and  the  number  of  its  shares  may  be  so 
small  and  the  buyers  so  few,  that  the  question  whether  certain  reported  sales 
are  fictitious  may  have  a  very  important  bearing  upon  the  action  of  such  a 
man.  Upon  the  evidence  in  this  case,  we  cannot  say,  as  matter  of  law,  that 
the  representation  so  far  as  false  was  not  material.  This  question  is  for  the 
jury,  who  are  to  consider  it  in  the  lig^t  of  the  nature  of  the  corporation  and  its 
standing  in  the  market,  and  of  other  matters,  including  such  as  those  of  which 
we  have  spoken. 

It  is  further  urged  by  the  defendant  that  one  of  the  fundamental  principles 
in  a  suit  like  this  is  that  the  representation  should  have  been  acted  upon  by 
the  complaining  party  and  to  his  injury;  that  at  most  the  plaintiff  simply 
refrained  from  action,  and  that  "  refraining  from  action  is  not  acting  upon 
representation  "  within  the  meaning  of  the  rule;  and  further  that  it  is  not 
shown  that  the  damages,  if  any,  suffered  by  the  plaintiff  are  the  direct  result 
of  the  deceit. 

Fraud  is  sometimes  defined  as  the  **  deception  practised  in  order  to  induce 
another  to  part  with  property  or  to  surrender  some  legal  right,"  Cooley, 
Torts  (2d  ed.),  555,  and  sometimes  as  the  deception  which  leads  "  a  man  into 
damage  by  wilfully  or  recklessly  causing  him  to  believe  and  act  on  a  false- 
hood." Pollock,  Torts  (Webb's  ed.),  348,  349.  The  second  definition  seems 
to  be  more  comprehensive  than  the  first  (see  for  instance  Barley  v.  Walford, 
9  Q.  B.  197,  and  Butler  v.  Watkins,  13  Wall.  456),  and  while  the  authorities 
establishing  what  is  a  cause  of  action  for  deceit  are  to  a  large  extent  conver- 
tible with  those  which  define  the  rig^t  to  rescind  a  contract  for  fraud  or  mis- 
representation and  the  two  classes  of  cases  are  generally  cited  without  any 
express  discrimination,  still  discrimination  is  sometimes  needful  in  the  com- 
parison of  the  two  classes  of  cases.    Pollock,  Torts  (Webb's  ed.),  352. 

It  is  true  that  it  must  appear  that  the  fraud  should  have  been  acted  upon. 
It  is  a  little  difficult  to  see  precisely  what  is  meant  by  the  contention  that 
"  refraining  from  action  is  not  acting  upon  representation."  If  by  refraining 
from  action  it  is  meant  simply  that  the  person  defrauded  makes  no  change 
but  goes  on  as  he  has  been  going  and  would  go  whether  the  fraud  had  been 
committed  or  not,  then  the  proposition  is  doubtless  true.  Such  a  person  has 
been  in  no  way  influenced,  nor  has  his  conduct  been  in  any  way  changed  by 
the  fraud.    He  has  not  acted  in  reliance  upon  it.    If,  however,  it  is  meant  to 


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CHAP.  IV.]  POTTLER  V.  MOSELEY  601 

include  the  case  where  the  person  defrauded  does  not  do  what  he  had  intended 
and  started  to  do  and  would  have  done  save  for  the  fraud  practised  upon  him, 
the  proposition  cannot  be  true.  So  far  as  respects  the  owner  of  property,  his 
change  of  conduct  between  keeping  the  property  on  the  one  hand  and  selling  it 
on  the  other,  is  equally  great,  whether  the  first  intended  action  be  to  keep  or 
to  sell;  and  if  by  reason  of  fraud  practised  upon  him  the  plaintiff  was  in- 
duced to  recall  his  order  to  sell,  and,  being  continuously  under  the  influence  of 
this  fraud,  kept  his  stock  when,  save  for  such  fraud,  he  would  have  sold  it, 
then  with  reference  to  this  property  he  acted  upon  the  representation  within* 
the  meaning  of  the  rule  as  applicable  to  cases  like  this.  Barley  v.  Walford, 
9  Q.  B.  197;  Butler  v,  Watkins,  13  WaU.  456. 

The  cases  of  Lamb  v.  Stone,  11  Pick.  527;  Wellington  v.  Small,  3  Cush.  145; 
and  Bradley  v.  Fuller,  118  Mass.  239,  upon  which  the  defendant  relies,  are  not 
authorities  for  the  proposition  that "  refraining  from  action  is  not  acting  upon 
representation." 

As  to  whether  the  loss  suffered  by  the  plaintiff  is  legally  attributable  to  the 
fraud,  much  can  be  said  in  favor  of  the  defendant,  and  a  verdict  in  his  favor 
on  this  as  well  as  on  other  material  points  might  be  the  one  most  reasonably 
to  be  expected  upon  the  evidence,  especially  when  it  is  considered  that  during 
the  years  1892  and  1893  the  plaintiff  was  a  director  in  the  company;  but  we 
cannot  decide  the  question  as  a  matter  of  law.  If  the  fraud  operated  on  the 
plaintiff's  mind  continuously,  up  to  the  time  of  the  depreciation  of  the  stock  in 
June,  1893,  so  that  he  kept  his  stock  when  otherwise  he  would  have  sold  it, 
and  such  was  the  direct,  natural  and  intended  result,  then  we  think  the  causal 
relation  between  the  fraud  and  the  loss  is  sufficiently  made  out.  See  Reeve  v. 
Dennett,  145  Mass.  23,  29.  Exceptions  sustained} 


FOTTLER  V.  MOSELEY 

SuPREBiB  Judicial  Court,  Massachusetts,  May  19, 1904. 

Reported  in  185  MassachuseUs  Reports,  563. 

Tort  for  deceit,  alleging,  that,  relying  upon  the  false  and  fraudulent  repre- 
sentations of  the  defendant,  a  broker,  that  certain  sales  of  the  stock  of  the 
Franklin  Park  Land  Improvement  Company  in  the  Boston  Stock  Exchange 
from  January  1  to  March  27, 1893,  were  genuine  transactions,  the  plaintiff  re- 
voked an  order  for  the  sale  of  certain  shares  of  that  stock  held  for  him  by  the 
defendant,  whereby  the  plaintiff  suffered  loss.   Writ  dated  February  17, 1896. 

At  the  first  trial  of  the  case  in  the  Superior  Court  a  verdict  was  ordered  for 
the  defendant,  and  the  exceptions  of  the  plaintiff  were  sustained  by  this  court 
in  a  decision  reported  in  179  Mass.  295.  At  the  new  trial  in  the  Superior 
Court  before  Sherman,  J.,  it  appeared  that  one  Moody  Merrill,  a  director  and 
officer  of  the  Franklin  Park  Land  Improvement  Company,  absconded  late  in 
May  or  early  in  June  of  1893,  and  that  immediately  upon  his  departure  it  was 
discovered  that  he  had  embezzled  nearly  $100,000  of  the  funds  of  that  com- 
pany, the  result  of  which  was  that  the  market  price  of  the  stock  inmiediately 

1  See  Graham  v,  Peale.  (C.  C.  A.)  173  Fed.  9  (delay  in  asserting  claim); 
Spreckols  v.  Gorrill,  152  Cal.  383:  Barron  Estate  Qo.  v.  Woodruff  Co.,  163  Cal.  561 
(preparations  for  building)  |  WiUiams  Crusher  &  Pulverizer  Co.  v.  Lyth  Tile  Co., 
150  N.  Y.  Suppl.  6  (expensive  investigation  preliminary  to  contract  not  made). 


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602  FOTTLER  V.  MOSELEY  "  [CHAP,  IV. 

fell  and  the  stock  could  not  be  sold;  that  the  plaintiff  from  the  time  of  the 
discovery  of  the  defendant's  alleged  fraud  did  his  best  to  sell  his  stock,  but 
was  unable  to  do  so  at  more  than  $3  a  share,  at  which  price  he  sold  it  after 
bringing  this  action. 

The  plaintiff  among  other  requests  asked  the  judge  to  rule, ''  That  it  is  of 
no  consequence  so  far  as  the  defendant's  liability  is  concerned  that  an  outside 
intervening  cause  has  been  the  sole  or  contributing  cause  of  the  decline  in 
price  to  which  the  plaintiff's  loss  is  due." 

The  judge  refused  this  and  other  rulings  requested  by  the  plaintiff,  and 
instructed  the  jury,  among  other. things,  as  follows:  — 

"  If  you  find  the  fair  market  value  of  that  stock  was  always  above  what 
it  was  fictitiously  quoted,  or  equal  to  it,  and  that  it  was  so  on  the  25th  of 
March,  1893,  and  remained  so  and  would  have  remained  so,  except  for  the 
embezzlement  and  absconding  of  Moody  Merrill,  then  the  plaintiff  is  not  en- 
titled to  recover.  ^ 

"  If  you  find  that  Moody  Merrill's  going  away  did  destroy  the  value  of  the 
stock,  practically  destroy  its  value,  then  the  plahitiff  is  not  entitled  to  recover 
anything. 

"  You  may  take  all  the  evidence  on  this  subject,  the  fact  of  what  Moody 
Merrill  did,  and  what  effect  it  had  upon  the  market  value  of  this  stock,  and 
if  that  destroyed  the  market  value,  then,  as  I  have  told  you,  the  plaintiff  is 
not  entitled  to  recover  anything.  If  his  going  away  and  embezzlement  did  not 
affect  the  market  value  of  this  stock,  then  the  plaintiff  may  recover  the  full 
value  of  it." 

The  judge  submitted  to  the  jiu*y  the  following  questions,  which  the  jury 
answered  as  stated  below:  — 

"  1.  Did  the  defendant  make  a  representation  to  the  plaintiff  on  or  about 
March  25, 1893,  that  the  quotations  in  the  Boston  Stock  Exchange  of  Frank- 
lin Park  Land  and  Improvement  Company  stock  were  quotations  of  actual 
and  true  sales  ?  "    The  jury  answered  "  Yes." 

"  2.  Were  such  quotations  at  or  about  the  same  sum  as  the  quotations  of 
actual  sales  and  the  sales  at  public  auction  ?  "    The  jury  answered  "  Yes." 

**  3.  What  was  the  fair  market  value  of  said  stock  on  or  about  March  25, 
1893  ?  "    The  jury  answered  "  $28.50  per  share." 

"  4.  What  was  the  fair  market  value  of  said  stock  on  the  last  day  of  May, 
or  immediately  prior  to  June,  1893,  the  day  before  Moody  Merrill's  abscond- 
ing ?  "    The  jxiry  answered  "  $27.75  per  share." 

The  }UTy  returned  a  verdict  for  the  defendant;  and  the  plaintiff  alleged 
exceptions. 

Knowlton,  C.  J.  The  parties  and  the  court  seem  to  have  assumed  that  the 
evidence  was  such  as  to  warrant  a  verdict  for  the  plaintiff  under  the  law  stated 
at  the  previous  decision  in  this  case,  reported  in  179  Mass.  295,  if  the  diminu- 
tion in  the  selling  price  of  the  stock  came  from  common  causes.  The  defend- 
ant's contention  is  that  the  embezzlement  of  an  officer  of  a  corporation,  being 
an  unlawful  act  of  a  third  person,  should  be  treated  as  a  new  and  independent 
cause  of  the  loss,  not  contemplated  by  the  defendant,  for  which  he  is  not 
liable. 

To  create  a  liability,  it  never  is  necessary  that  a  wrongdoer  should  contem- 
plate the  particulars  oif  the  injury  from  his  wrongful  act,  nor  the  precise  way 
in  which  the  damages  will  be  inflicted.   He  need  not  even  expect  that  damage 


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CHAP.  IV.]  FOTTLER  V.  M08ELEY  603 

will  result  at  all,  if  he  does  that  which  is  unlawful  and  which  involves  a  risk 
of  injury.  An  embezzler  is  criminally  liable,  notwithstanding  that  he  expects 
to  return  the  money  appropriated  after  having  used  it.  If  the  defendant 
fraudulently  induced  the  plaintiff  to  refrain  from  selling  his  stock  when  he 
was  about  to  sell  it,  he  did  him  a  wrong,  and  a  natural  consequence  of  the 
wrong  for  which  he  was  liable  was  the  possibility  of  loss  from  diminution  in 
the  value  of  the  stock,  from  any  one  of  numerous  causes.  Most,  if  not  all,  of 
the  causes  which  would  be  likely  to  affect  the  value  of  the  stock,  would  be  acts 
of  third  persons,  or  at  least  conditions  for  which  neither  the  plaintiff  nor  the 
defendant  would  be  primarily  responsible.  Acts  of  the  officers,  ionest  or  dis- 
honest, in  the  management  of  the  corporation,  would  be  among  the  most  com- 
mon causes  of  a  change  in  value.  The  defendant,  if  he  fraudulently  induced 
*  the  plaintiff  to  keep  his  stock,  took  the  risk  of  all  such  chaif|es.  The  loss  to 
the  plaintiff  from  the  fraud  is  as  direct  and  proximate,  if  he  was  induced  to 
hold  his  stock  until  an  embezzlement  was  discovered,  as  if  the  value  had  been 
diminished  by  a  fire  which  destroyed  a  large  part  of  the  property  of  the  cor- 
poration, or  by  the  unexpected  bankruptcy  of  a  debtor  who  owed  the  corpora- 
tion a  large  sum.  Neither  the  plaintiff  nor  the  defendant  would  be  presumed 
to  have  contemplated  all  the  particulars  of  the  risk  of  diminution  in  value  for 
which  the  defendant  made  himself  liable  by  his  fraudulent  representations.  It 
would  be  unjust  to  the  plaintiff  in  such  a  case,  and  impracticable,  to  enter 
upon  an  inquiry  as  to  the  cause  of  the  faU  in  value,  if  the  plaintiff  suffered 
from  the  fall  wholly  by  reason  of  the  defendant's  fraud.  ITie  risk  of  a  fall, 
from  whatever  cause,  is  presumed  to  have  been  contemplated  by  the  defend- 
ant when  he  falsely  and  fraudulently  induced  the  plaintiff  to  retain  his 
stock. 

We  do  not  intimate  that  these  circumstances,  as  well  as  others,  may  not 
properly  be  considered  in  determining  whether  the  plaintiff  was  acting  under 
the  inducement  of  the  fraudulent  representations  in  continuing  to  hold  the 
stock  up  to  the  time  of  the  discovery  of  the  embezzlement.  The  false  repre- 
sentations may  or  may  not  have  ceased  to  operate  as  an  inducement  as  to  the 
disposition  of  his  stock  before  that  time.  Of  course  there  can  be  no  recovery, 
except  for  the  direct  results  of  the  fraud.  But  if  the  case  is  so  far  established 
that  the  plaintiff,  immediately  upon  the  discovery  of  the  embezzlement,  was 
entitled  to  recover  on  the  ground  that  he  was  then  holding  the  stock  in  reli- 
ance upon  the  fraudulent  statements,  and  if  the  great  diminution  in  value 
came  while  he  was  holding  it,  the  fact  that  this  diminution  was  brought  about 
by  the  embezzlement  of  an  officer  leaves  the  plaintiff's  right  no  less  than  if  it 
had  come  from  an  ordinary  loss.  Exceptions  sustained} 

*  "  But  there  is  one  thiog  which  intervenes  between  the  injuria  and  the  damnum 
and  that  is  the  plaintiff's  action  which  results  in  damage.  It  is  clear  that  a  mis- 
representation cannot  of  itself  directlv  produce  damage.  It  reauires  a  means  of 
conveyance,  and  that  ha  the  action  which  it  produces,  and  which  results  in  dam- 
age." 

"  ...  It  is  the  action  of  the  plaintiff,  and  not  the  damage,  which  must  be 
materially  induced  by  the  misrepresentation." 

"  The  fallacy  is  in  regarding  tne  damage,  and  the  action  resulting  in  damage,  as 
the  same  thing."    Moncrieff,  Law  of  Fraud  and  Misrepresentation,  187. 


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604  MORSE  V.  HUTCHIN8  [CHAP.  IV. 

MORSE  V.  HUTCHINS 
Supreme  Judicial  Court,  Massachusetts,  October  Term,  1869, 

Reported  in  102  MaesachuseUe  Reporter  430. 

Tort  for  deceit  in  making  false  and  fraudulent  representations  to  the  plain- 
tiff touching  the  business  and  profits  of  a  firm  of  which  the  defendant  was  a 
member,  and  thereby  inducing  the  plaintiff  to  buy  the  interest  of  the  defend- 
ant in  the  stock  and  good  will  of  the  firm.  A  count  in  contract  for  the  same 
cause  of  action  was  joined.  Answer,  a  general  denial  and  a  plea  of  a  discharge 
in  bankruptcy. 

At  the  trial  in  the  Superior  C!ourt,  Brigham,  C.  J.,  ruled  that  the  discharge 
in  bankruptcy  was  a  defence  to  the  second  count,  but  not  to  the  first  count; 
and  the  plaintiff  relied  on  the  first  count  only. 

The  judge  instructed  the  jiu*y  that ''  the  measure  of  damages  would  be  the 
difference  between  the  actual  value  of  the  stock  and  good  will  purchased  at  the 
time  of  the  purchase  and  the  value  of  the  same  had  the  representation  been 
true." 

The  jury  returned  a  verdict  for  the  plamtrff,  and  the  defendant  alleged 
exceptions. 

Gray,  J.  The  objections  that  either  the  joinder  of  a  count  in  contract  with 
the  count  in  tort,  or  the  certificate  of  discharge  in  bankruptcy,  would  defeat 
the  plaintiff's  ri^t  of  action  in  tort  for  the  defendant's  faise  and  fraudulent 
representations,  were  hardly  relied  on  at  the  argument,  and  are  groundless. 
Gen.  Sts.  c.  129,  §  2,  cl.  5.  Crafts  v.  Belden,  99  Mass.  535.  U.  S.  St.  1867, 
c.  176,  §  33. 

The  rule  of  damages  was  rightly  stated  to  the  jiury.  It  is  now  well  settled 
that,  in  actions  for  deceit  or  breach  of  warranty,  the  measure  of  damages  is 
the  difference  between  the  actual  value  of  the  property  at  the  time  of  the  pur- 
chase and  its  value  if  the  property  had  been  what  it  was  represented  or  war- 
ranted to  be.  Stiles  v.  White,  11  Met.  356;  Tuttle  v.  Brown,  4  Gray,  457; 
Whitemore  v.  South  Boston  Iron  Co.,  2  Allen,  52;  Fisk  v.  Hicks,  11  Foster, 
535;  Woodward  v.  Thacher,  21  Verm.  580;  Muller  v.  Eno,  4  Keman,  597; 
Sherwood  v.  Sutton,  5  Mason,  1;  Loder  v.  Kekul6,  3  C.  B.  n.  s.  128;  Dingle 
V.  Hare,  7  C.  B.  n.  s.  145;  Jones  v.  Just,  Law  Rep.  3  Q.  B.  197.  This  is  the 
only  rule  which  will  give  the  purchaser  adequate  damages  for  not  having  the 
thing  which  the  defendant  imdertook  to  sell  him.  To  allow  to  the  plaintiff  (sjs 
the  learned  counsel  for  the  defendant  argued  in  this  case)  only  the  difference 
between  the  real  value  of  the  property  and  the  price  which  he  was  induced  to 
pay  for  it  would  be  to  make  any  advantage  lawfully  secured  to  the  innocent 
purchaser  in  the  original  bargain  inure  to  the  benefit  of  the  wrongdoer;  and, 
in  proportion  as  the  original  price  was  low,  would  afford  a  protection  to  the 
party  who  had  broken,  at  the  expense  of  the  party  who  was  ready  to  abide  by, 
the  terms  of  the  contract.  The  fact  that  the  property  sold  was  of  such  a 
character  as  to  make  it  difficult  to  ascertain  with  exactness  what  its  value 
would  have  been  if  it  had  conformed  to  the  contract  affords  no  reason  for  ex- 
empting the  defendant  from  any  part  of  the  direct  consequences  of  his  fraud. 
And  the  value  may  be  estimated  as  easily  in  this  action  as  in  an  action  against 
him  for  an  entire  refusal  to  perform  his  contract.        Exceptions  overruled. 


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CHAP.  IV.]  SMITH  V.  B0LLE8  605 

SMITH  V.  BOLLES 

SxTPBEBfE  Court  op  the  Unttbd  Spates,  Novembbb  11,  1889. 

Reported  in  132  United  Slates  Reports,  125. 

Error  to  the  United  States  Circuit  Court  for  the  Northern  District  of 
Ohio. 

Action  to  recover  damages  for  fraudulent  representations  in  the  sale  of 
shares  of  mining  stock. 

The  amended  petition  alleged  (inter  alia)  that  plaintiff  was  induced  by 
defendant's  fraudulent  representations  to  buy  of  defendant  four  thousand 
shares  of  mining  stock  at  $1.50  per  share,  amounting  to  $6000;  that  ^'  said 
stock  and  mining  property  was  then,  and  still  is,  wholly  worthless;  and  that 
had  the  same  been  as  represented  by  defendant  it  would  have  been  worth  at 
least  ten  dollars  per  share;  and  so  plaintiff  says  that  by  reason  of  the  premises 
he  has  sustained  damages  to  the  amount  of  forty  thousand  dollars.'' 

Answer,  denying  plaintiff's  material  allegations.  Trial  by  jury.  The  in- 
structions given  as  to  damages  are  stated  in  the  opinion.  Verdict  for  plaintiff. 
Motion  for  new  trial  overruled.  Judgment  for  plaintiff.  Defendant  brought 
error.^ 

Fuller,  C.  J.  The  bill  of  exceptions  states  that  the  court  charged  the  jury 
"  as  to  the  law  by  which  the  jury  were  to  be  governed  in  the  assessment  of 
damages  under  the  issues  made  in  the  case,"  that "  the  measure  of  recovery  is 
generally  the  difference  between  the  contract  price  and  the  reasonable  market 
value,  if  the  property  had  been  as  represented  to  be,  or  in  case  the  property  or 
stock  is  entirely  worthless,  then  its  value  is  what  it  would  have  been  worth 
if  it  had  been  as  represented  by  the  defendant,  and  as  may  be  shown  in  the 
evidence  before  you." 

In  this  there  was  error.  The  measure  of  damages  was  not  the  difference  be- 
tween the  contract  price  and  the  reasonable  market  value  if  the  property  had 
been  as  represented  to  be/^ven  if  the  stock  had  been  worth  the  price  paid  for 
it)  nor  if  the  stock  were  worthless,  could  the  plaintiff  have  recovered  the  value 
it  would  have  had  if  the  property  had  been  equal  to  the  representations.  What 
the  plaintiff  might  have  gained  is  not  the  question,  but  what  he  had  lost  by 
being  deceived  into  the  purchase.  The  suit  was  not  brought  for  breach  of  con- 
tract. The  gist  of  the  action  was  that  the  plaintiff  was  fraudulently  induced 
by  the  defendant  to  purchase  stock  upon  the  faith  of  certain  false  and  fraudu- 
lent representations,  and  so  as  to  the  other  persons  on  whose  claims  the 
plaintiff  sought  to  recover.  If  the  jury  believed  from  the  evidence  that  the 
defendant  was  guilty  of  the  fraudulent  and  false  representations  alleged,  and 
that  the  piu*chase  of  stock  had  been  made  in  reliance  thereon,  then  the  defend- 
ant was  liable  to  respond  in  such  damages  as  naturally  and  proximately 
resulted  from  the  fraud.  He  was  bound  to  make  good  the  loss  sustained,  such 
as  the  moneys  the  plaintiff  had  paid  out  and  interest,  and  any  other  outlay 
legitimately  attributable  to  defendant's  fraudulent  conduct;  but  this  liability 
did  not  include  the  expected  fruits  of  an  unrealized  speculation.  The  reason- 
able market  value,  if  the  property  had  been  as  represented,  afforded,  therefore, 
no  proper  element  of  recovery. 

^  Statement  abridged  and  arguments  omitted. 


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606  SCHWABACKEK  V.  RIDDLE  [CHAP.  IV. 

Nor  had  the  contract  price  the  bearing  given  to  it  by  the  court.  What  the 
plaintiff  paid  for  the  stock  was  properly  put  in  evidence,  not  as  the  basis  of 
the  application  of  the  rule  in  relation  to  the  difference  between  the  contract 
price  and  the  market  or  actual  value,  but  as  establishing  the  loss  he  had  sus- 
tained in  that  particular.  If  the  stock  had  a  value  in  fact,  that  would  neces- 
sarily be  applied  in  reduction  of  the  damages.  "  The  damage  to  be  recovered 
must  always  be  the  natural  and  proximate  consequence  of  the  act  complained 
of,"  says  Mr.  Greenleaf,  vol.  ii,  §  256;  and  "  the  test  is,"  adds  Chief  Justice 
Beasley  in  Crater  v.  Binninger,  33  N.  J.  Law  (4  Vroom),  513, 518,  "  that  those 
results  are  proximate  which  the  wrong-doer  from  his  position  must  have  con- 
templated as  the  probable  consequence  of  his  fraud  or  breach  of  contract."  In 
that  case,  the  plaintiff  had  been  induced  by  the  deceit  of  the  defendant  to  enter 
into  an  oil  speculation,  and  the  defendant  was  held  responsible  for  the  moneys 
put  into  the  scheme  by  the  plaintiff  in  the  ordinary  course  of  the  business, 
which  moneys  were  lost,  less  the  value  of  the  interest  which  the  plaintiff 
retained  in  the  property  held  by  those  associated  in  the  speculation. 

[Remainder  of  opinion  omitted.] 

Judffment  reversed.    Cause  remanded  wi^ 
a  direction  to  granl  a  new  trial.^ 


SCHWABACKER  v.  RIDDLE 

SuFBEME  Court,  Illinois,  June  20, 1891. 
Reported  in  99  lUinoia  Reports,  343. 

AcnoN  for  deceit,  brought  by  Riddle  against  Schwabacker  et  afo., 
alleging  that,  in  the  purchase  of  property  to  be  taken  at  the  invoice 
price,  Riddle  was  cheated  out  of  the  sum  of  $2677.09-  by  fraudulent 
representations  made  by  defendants  in  regard  to  the  amount  the  goods 
purchased  inventoried.  On  trial  there  was  a  verdict  for  plaintiff.' 
Some  of  the  instructions  are  stated  in  the  opinion.  Judgment  in  favor 
of  Riddle.    Schwabacker  et  als.  appealed.* 

Craig,  C.  J.  .  .  .    Instruction  No.  2  reads  as  follows:  — 

''  If  a  party  misrepresents  a  fact  within  his  own  knowledge,  to  the 
injury  of  a  third  party,  an  action  will  lie  for  damages,  if  any,  for  such 
misrepresentation." 

This  instruction  is  liable  to  several  serious  objections.  In  the  first 
place,  a  misrepresentation,  to  be  actionable,  must  be  a  material  one, 
or  no  action  will  lie.  In  the  second  place,  in  an  action  for  deceit  no 
recovery  can  be  had  unless  the  plaintiff  himself  exercised  ordinary 
prudence  to  guard  against  the  deception  and  fraud  practised  upon 
him,  unless  he  has  been  thrown  off  his  guard  by  the  other  party. 
These  two  principles  were  entirely  ignored  by  the  instruction,  and  the 

^  Reaffirmed  in  Sigafus  v.  Porter,  179  U.  S.  116.  'Hie  authorities  on  each  side 
of  this  controverted  question  are  collected  in  a  note  to  George  v.  Hesse,  (lOO  Tex. 
44)  8  L.  R.  A.  N.  s.  804.  For  later  cases,  see:  Harris  v,  Neil,  144  Ga.  519  {accord); 
Trayne  v.  Boardman,  207  Mass.  581;  Crawford  v.  Armacost,  85  Wash.  622 
ifiorliTa), 

'  Statement  abridged;  arguments  omitted;  also  part  of  opinion. 


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CHAP.  IV.]  SCHWABACKER  V.  RIDDLE  607 

jury,  under  this  direction  of  the  coiirt,  was  at  liberty  to  find  against 
the  defendants  if  they  misrepresented  any  immaterial  fact,  however 
remote,  and  the  plaintiff  exercised  no  precaution  whatever  to  guard 
against  imposition.  This  is  not  a  soimd  rule  to  be  adopted,  and  as  the 
instruction  was  calculated  to  mislead  the  jury,  it  ought  not  to  have 
been  given. 

Instruction  No.  13,  given  for  the  plaintiff,  reads  as  follows:  —    * 

''  It  is  not  necessary,  in  this  case,  that  the  plaintiff  should  show  any 
prior  conspiracy  or  combination  between  the  defendants  to  defraud 
the  plaint^;  it  is  enough  if  the  evidence  shows  that  a  sale  was  made 
to  Riddle,  or  Riddle  and  Fosbender,  and  that  the  agreed  price  was  for 
the  value  of  the  property,  as  shown  by  a  certain  invoice,  and  that 
notes  were  to  be  taken  for  the  amount,  and  that  the  defendants  had 
notes  drawn  for  $2677.09  more  than  the  value  of  the  property  as 
shown  by  such  invoice;  and  if  the  plaintiff,  before  signing  the  notes, 
asked  if  they  were  for  the  amount  of  the  invoice,  and  Fosbender  said 
they  were,  in  the  presence  and  hearing  of  the  other  defendants,  and  if 
Riddle  relied  upon  such  statement  in  signing  the  notes,  which  was 
known  to  the  defendants,  then  such  conduct  and  representations 
would  amount  to  a  fraud  in  the  other  defendants,  if  they  resulted  in 
damages  to  the  plaintiff." 

[After  stating  an  objection  to  this  instruction.] 

Again,  imder  this  instruction  a  recovery  may  be  had  although  the 
plaintiff  was  deceived  from  a  total  want  of  reasonable  care  on  his  part. 
At  the  time  the  notes  were  signed,  as  we  imderstand  the  evidence  of 
plaintiff  himself,  the  invoice,  which  showed  the  correct  amount  of  the 
goods,  was  present,  and  in  the  hands  of  one  of  the  defendants.  If 
that  be  true,  and  it  could  have  been  obtained  and  inspected  by  the 
plaintiff,  and  he  failed  and  n^lected  to  do  so,  but  relied  upon  a  state- 
ment made  by  Fosbender  at  the  time,  it  was  for  the  jury  to  determine 
whether,  imder  the  evidence,  he  had  exercised  proper  diligence  to 
guard  against  deception,  and  if  he  did  not,  he  could  not  recover.  But 
this  principle  was  ignored  in  this  and  other  instructions  given  for  the 
plaintiff.  Indeed,  this  principle  is  not  stated,  but  seems  to  be  ignored 
in  all  of  the  instructions  given  for  the  plaintiff.  This  last  instruction, 
in  oiur  judgment,  was  calculated  to  mislead  the  jmy. 

Judgment  reversed} 

1  Henderson  9.  Henshall,  (C.  C.  A.)  54  Fed.  320;  Tooker  v,  Alston,  150  Fed. 
699;  Jordan  v.  Pickett,  78  Ala.  331;  Dingle  v.  Trask,  7  Ck)l.  App.  16;  Carondelet 
Iron  Works  v,  Moore,  78  Dl.  65;  Jones  v.  Foster,  176  111.  469;  Press  t^.  Hair,  133 
111.  App.  528;  Anderson  Foundry  v.  Myers,  15  Ind.  App.  385;  Moore  v,  TurbeviUe, 
2  Bft)b.  602;  Weaver  v.  Shriver,  79  Md.  530:  SUver  v,  Prarier^  AD.  382;  Parker 
V.  Moulton,  114  Mass.  99;  Poland  v,  Brownell,  131  Mass.  138;  Thompson  v.  Pente- 
cost, 206  Mass.  506;  Anderson  v,  McPike.  86  Mo.  293;  Brown  v.  Kansas  City  R. 
Co.,  187  Mo.  App.  104;  Morrill  v.  Madden,  36  Minn.  493;  Grindrod  v.  Anglo- 
American  Bond  Co.,  34  Mont.  169;  Power  v.  Turner,  37  Mont.  621;  Osborne  v. 


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608         FARGO  G.  &  C.  CO.  V.   FARGO  G.  &  E.  CO.   [CHAP.  IV. 

FARGO  GAS  &  COKE  COMPANY  v.  FARGO  GAS  & 
ELECTRIC  COMPANY 

Supreme  Court,  North  Dakota,  July  23,  1894. 
Reported  in  4  North  Dakota  Reports,  219. 

Corliss,  J.^  The  plaintiff  has  recovered  judgment  for  the  balance 
of  the  purchase  price  of  a  gas  and  electric  plant  located  in  the  City 
of  Fargo,  N.  D.,  sold  by  plaintiff  to  the  defendant.  A  portion  of  the 
consideration  was  paid,  and,  upon  being  sued  for  the  unpaid  portion 
of  the  purchase  price,  defendant  set  up  as  a  defence  a  partial  failure 
of  consideration  from  the  nondelivery  of  some  of  the  property  pur- 
chased, and  also  a  counterclaim  for  damages  arising  out  of  the  alleged 
deceit  of  the  plaintiff  in  making  the  sale.  The  view  we  take  of  the 
case  renders  a  more  particular  reference  to  the  defence  of  partial  fail- 
ure of  consideration  unnecessary.  We  will  confine  om^elves  to  the 
single  question  of  fraud.  The  property  piu^chased  consisted  of  a  gas 
plant,  with  mains  and  all  the  other  classes  of  property  which  go  to 
make  up  such  a  plant,  and  also  an  arc  electric  light  plant,  with  poles, 
wires,  and  other  fixtures  distributed  over  different  parts  of  the  City 
of  Fargo.  These  two  plants  were  used  by  the  plaintiff  at  the  time  of 
making  the  sale  thereof  to  defendant,  to  light  the  public  streets  of 
the  City  of  Fargo,  its  public  buildings,  stores,  hotels,  and  dwelling 
houses,  and  had  been  so  used  for  some  time  prior  to  such  sale.  The 
allied  fraudulent  representations  were  of  two  classes,  —  one  class  re- 
lating to  the  physical  condition  of  the  plant,  embracing  statements  as 
to  the  number  of  miles  of  wire,  the  number  of  poles,  the  gas  mains, 
and  as  to  the  condition  of  the  plant  in  other  respects;  and  the  other 

Missouri  R.  Co.,  71  Neb.  180;  Saunders  v.  Hatterman,  2  Ired.  32;  MulhoUand  v. 
Washington  Match  Co.^  35  Wash.  316;  Moshert;.  Post,89Wis.602;  Fair  w.  Peter- 
son, 91  Wis.  182;  Kaiser  v.  Nummerdor,  120  Wis.  234;  Jacobsen  v.  Whitely, 
138  Wis.  434  Accord, 

But  see  Wilson  v.  Higbee,  62  Fed.  723;  King  t;.  Livingston  Mfg.  Co.,  180  Ala. 
118;  Mason  v.  Thornton,  74  Ark.  46;  Linington  v.  Strong,  107  111.  295;  Robinson 
V.  Reinhart,  137  Ind.  674:  Hanks  v.  McKee,  2  Litt.  227;  Bowen  v.  Carter,  124 
Mass.  426;  Arnold  v.  Teele.  182  Mass.  1;  Light  v.  Jacobs,  183  Mass.  206;  Bach- 
man  V.  Travelers  Ins.  Co.,  (N.  H.)  97  Atl.  223;  Fox  v.  Duffy,  95  App.  Div.  202. 

"  The  doctrine  ...  is  not  to  be  extended.  It  relates  merely  to  seUer's  talk." 
Sheldon.  J.,  in  Townsend  v.  Niles,  210  Mass.  524,  531. 

Equal  means  of  knowledge,  see  Hill  v.  Bush,  19  Ark.  522;  Strong  v.  Peters,  2 
Root,  93;  McDaniell  v.  Strohecker,  19  Ga.  432:  Knight  v.  Gaultney,  23  HI.  App. 
376;  Foley  v.  Cowgill,  5  Blackf.  18;  Boddy  v.  Henry,  113  la.  462;  Hinchman  v. 
Weeks,  85  Mich.  535;  Bradford  v.  Wright,  145  Mo.  App.  623;  Conway  Nat.  Bank 
V.  Pease,  76  N.  H.  319;  Long  t;.  Warren,  68  N.  Y.  426;  CrisUp  v.  Cain,  19  W.  Va. 
4oo. 

Execuiion  of  instrument  wUfwui  reading  it,  see  Dunham  Lumber  Co.  v.  Holt, 
123  Ala.  336;  Robinson  v.  Glass,  94  Ind.  211:  Porter  v.  United  Railways,  165  Mo. 
App.  619;  Muller  v.  Rosenblath,  157  App.  Div.  513:  Griffin  v,  Roanoke  Lumber 
Co.,  140  N.  C.  514. 

Reliance  on  friendshiv,  see  Gray  t;.  Reeves,  69  Wash.  374. 

*  Arguments  omittea;  also  pturt  of  opinion. 


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CHAP.  IV.]  FARGO  G.  &  C.  CO.  V.   FARGO  G.  &  E.  CO.        609 

class  related  to  the  net  earnings  of  the  plant  for  the  previous  year, 
and  the  prices  charged  customers  for  gas  and  electric  light.  It  ap- 
peai:3  that  defendant  reUed  chiefly  upon  the  earning  capacity  of  the 
plant  in  making  the  purchase,  and  was  induced  to  beUeve  that  its  net 
annual  earnings  would  equal  10  per  cent  of  the  purchase  price  ($85,- 
300),  because  of  the  statements  of  the  plaintiff's  officers  that  its  net 
earnings  during  the  past  year  had  been  $8913.  There  was  evidence 
tending  to  show  that  this  statement  was  false,  and  that  it  must  have 
been  known  to  be  false  by  plaintiff's  officers  who  n^otiated  the  sale. 
Having  in  this  brief  manner  set  forth  the  general  character  of  the  prop- 
erty sold,  and  the  general  nature  of  the  fraudulent  representations 
upon  which  defendant's  counterclaim  for  deceit  was  founded,  we  can 
now  intelligently  turn  to  what  we  r^ard  as  a  fatal  error  in  the  case. 
In  the  course  of  his  charge  to  the  jury,  the  learned  trial  judge  in- 
structed them  as  follows:  ''  If  the  means  were  at  the  defendant's 
hands  to  discover  the  truth  or  imtruth  of  the  plaintiff's  statements 
with  regard  to  the  amoimt  and  character  of  the  property,  defendant 
must  be  presumed  to  have  had  a  knowledge  of  the  actual  facts."  This 
instruction  must  be  considered  in  the  light  of  the  refusal  of  the  court 
to  charge  the  jury  as  follows,  at  the  request  of  defendant's  coimsel: 
''  If  you  find  that,  during  the  negotiations,  statements  were  made  by 
the  plaintiff  as  to  the  earnings  of  the  plant,  the  defendant  had  a  right 
to  rely  upon  these  statements;  and  if  they  were  so  relied  on,  and 
were  false,  and  the  defendant  suffered  injury  thereby,  the  defendant 
would  be  entitled  to  recover  the  damages  which  it  suffered  in  conse- 
quence thereof."  It  is  apparent  from  this  refusal  to  charge,  and  from 
l^e  charge  as  cited  given,  that  the  court  told  the  jmy  that,  as  a  mat- 
ter of  law,  defendant  did  not  have  the  right  implicitly  to  rely  upon 
the  representations  of  the  plaintiff  touching  the  character  of  the  plant, 
but  must  make  inquiries  concerning  them,  and  must  make  investi- 
gation as  to  their  truth  or  falsity.  It  is  true  that  the  word  "  investi- 
gate "  is  not  used;  but,  when  we  consider  the  nature  of  the  property 
and  the  character  of  the  representations  made,  it  is  obvious  that 
something  more  than  a  mere  inspection  of  an  object  present  before 
a  purchaser  was  necessary  in  order  to  enable  the  purchaser  in  this  case 
to  "  discover  "  the  truth  or  falsity  of  plaintiff's  statements.  Such  an 
instruction  to  a  jury  might  be  appropriate  in  an  action  in  which  fraud 
in  the  sale  of  a  horse  was  set  up,  the  seller  having  represented  the 
horse  to  be  perfectly  soimd,  and  it  appearing  that  the  horse  stood  be- 
fore the  purchaser  at  the  time  the  representation  was  made,  and  that 
the  only  defect  consisted  in  the  absence  of  a  1^,  easily  discernible  by 
the  ordinary  use  of  eyesight.  But  in  the  case  at  bar  the  means  of  dis- 
covering the  truth  or  untruth  of  these  false  statements  were  not  at 
hand  in  the  sense  that  they  must  have  been  employed  before  the  seller 
could  be  held  responsible  for  his  fraudulent  representations;  and, 
when  this  language  was  used,  the  jury  must  have  drawn  the  inference 


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610        FARGO  G,  &  C.  CO.  V.   FARGO  G.  &  E.  CO.   [CHAP.  IV. 

from  the  fact  that  this  plant  was  in  the  same  city,  and  could  be  in- 
vestigated with  respect  to  its  condition  and  its  earnings,  and  the  prices 
charged  customers  for  gas  and  electric  light,  and  with  reference  to  the 
other  features  embraced  in  the  statements  made  by  plaintiff  on  the 
sale,  that  therefore  the  means  were  at  hand,  within  the  rule  laid  down 
by  the  court  requiring  the  purchaser  to  discover  at  its  peril  the  truth 
or  falsity  of  the  statements  made.  Such  a  rule  of  law  would  be  unjust 
and  intolerable.  When  parties  deal  at  arm's  length,  the  doctrine  of 
caveat  emptor  applies;  but  the  moment  the  vendor  makes  a  false  state- 
ment of  fact,  and  its  falsity  is  not  palpable  to  the  purchaser,  he  has  an 
undoubted  right  implicitly  to  rely  upon  it.  That  would,  indeed,  be  a 
strange  rule  of  law  which,  when  the  seller  had  successfully  entrapped  • 
his  victim  by  false  statements,  and  was  called  to  account  in  a  court  of 
justice  for  his  deceit,  would  permit  him  to  escape  by  urging  the  folly 
of  his  dupe  for  not  suspecting  that  he,  the  seller,  was  a  knave.  In  the 
absence  of  such  a  suspicion,  it  is  entirely  reasonable  for  one  to  put  faith 
in  the  deUberate  representations  of  another.  The  jury  must  have 
imderstood  that  the  means  were  at  hand  to  discover  the  claim,  be- 
cause the  defendant  might  have  measured  the  wire,  counted  the  poles, 
examined  the  gas  mains,  ascertained  how  much  customers  were  pa3dng 
for  gas  and  electric  light,  and  might  have  hired  an  expert  to  examine 
into  the  earnings  and  expenses  of  the  plaintiff  in  running  the  plant, 
with  a  view  to  discovering  whether  a  business  man  had  told  the  truth. 
It  should  not  have  been  left  to  the  jury  to  determine  whether  the 
means  were  at  hand  to  discover  the  falsity  of  the  statements  made, 
in  view  of  the  character  of  such  statements  and  the  nature  of  the 
property  sold.  The  defendant,  as  a  matter  of  law,  had  a  right  to 
rely  impUcitly  upon  the  statements  made  by  plaintiff  touching  the 
character  of  this  plant.  So  long  as  defendant  did  not  actually  know 
the  representations  to  be  false,  it  was  under  no  obligation  to  investi- 
gate to  determine  their  truth  or  falsity.  In  Mead  v,  Bunn,  32  N.  Y. 
280,  the  court  say:  "  Every  contracting  party  has  an  absolute  right 
to  rely  on  the  express  statements  of  an  existing  fact,  the  truth  of  which 
is  known  to  the  opposite  party  and  unknown  to  him,  as  a  basis  of 
mutual  engagement,  and  he  is  under  no  obhgation  to  investigate  and 
verify  statements,  to  the  truth  of  which  the  other  party  to  the  con- 
tract, with  full  means  of  knowledge,  has  deliberately  pledged  his 
faith."  In  Redding  v.  Wright,  (Mmn.)  51  N.  W.  1056  (a  case  very 
much  in  point),  the  court  say:  "  If  the  representations  were  fraudu- 
lently made  with  the  intent  to  induce  the  plaintiff  to  rely  upon  the 
fact  being  as  represented,  and  to  act  upon  the  beUef  thus  induced,  the 
wrongdoer  who  succeeds  in  such  a  purpose  is  not  to  be  shielded  from 
responsibiUty  by  the  plea  that  the  defrauded  party  would  have  dis- 
covered the  falsity  of  the  representation  if  he  had  pursued  such  means 
of  information  as  were  available  to  him."    While  the  rule  haa  been  in 


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CHAP-  IV.]     FABGO  G.  &  C.  CO.  V.  FARGO  G.  &  E.  CO.  611 

some  cases  stated  in  terms  more  favorable  to  plaintiff,  yet  no  decision 
can  be  found  which  establishes  a  doctrine  under  which  defendant 
would  be  bound,  under  the  circumstances  of  this  case,  to  make  any 
investigation  or  inquiry  touching  the  truth  or  falsity  of  the  statements 
made  in  connection  with  the  sale.  There  are  many  well  considered 
cases  which  sustain  our  view  that  defendant  had  a  right  implicitly  to 
rely  upon  the  representations  made  by  plaintiff  with  respect  to  the 
character  of  the  property  to  be  purchased  by  defendant.  In  addition 
to  the  cases  already  cited,  we  refer  to  Maxfield  v.  Schwartz,  45  Minn. 
150,  47  N.  W.  448;  Gardner  v.  Trenary,  65  Iowa,  646,  22  N.  W.  912; 
Schumaker  v.  Mather,  133  N.  Y.  690,  30  N.  E.  755;  McClellan  v. 
Scott,  24  Wis.  81 ;  Caldwell  v.  Henry,  76  Mo.  254;  (Wald  v.  McGehee, 
28  Miss.  340;  CottriU  v.  Krum,  100  Mo.  397, 13  S.  W.  753;  CampbeU 
V.  Prankem,  65  Ind.  591;  Kerr,  Fraud  &  M.  77,  80,  81;  Erickson  v. 
Fisher,  (Minn.)  53  N.  W.  638;  Alfred  Shrimpton  &  Sons  v.  Philbrik, 
(Minn.)  55  N.  W.  551;  Bamdt  v.  Frederick,  (Wis.)  47  N.  W.  6;  Bige- 
low.  Fraud,  522,  528.  We  are  aware  that  cases  can  be  found  which 
exact  from  the  buyer  more  care  in  ascertaining  the  truth  or  falsity  of 
representations  than  the  decisions  just  cited.  These  cases  appear  to  us 
to  have  been  rightfully  decided,  in  view  of  the  facts.  In  determining 
what  the  courts  in  such  cases  intended  to  hold,  the  language  of  each 
opinion  must  be  read,  in  the  light  of  the  facts  of  the  particular  case. 
TTie  unmistakable  drift  is  towards  the  just  doctrine  that  the  wrong- 
doer cannot  shield  himself  from  liability  by  asking  the  law  to  condemn 
the  credulity  of  his  victim.  The  falsity  of  the  statement  may  be  ap- 
parent because  the  thing  misrepresented  is  before  the  buyer,  and  the 
most  casual  look  will  suffice  to  discover  the  falsehood,  no  artifice  being 
used  to  divert  his  attention;  or  the  statement  may  carry  its  own  refu- 
tation upon  its  face,  —  may  be  so  absurd  or  monstrous  that  it  is 
palpably  false;  as  a  statement  by  a  person  carrying  on  a  business 
known  to  the  purchaser  to  be  very  small  that  the  receipts  of  the  busi- 
ness ax^  a  million  dollars  a  year.  In  these  and  other  similar  cases  the 
law  will  not  allow  a  person  to  assert  that  he  was  deceived.  But  the 
general  rule  is,  and,  upon  principle,  must  be,  that  the  question  is  one  of 
reliance  by  the  buyer  upon  the  false  statement  of  the  seller.  Whether 
it  was  wise  for  him  to  rely  upon  it,  whether  he  was  prudent  in  so  doing, 
whether  he  is  not  chargeable  with  negligence  in  a  certain  sense  in  not 
investigating,  —  these  inquiries  are,  in  general,  inmiaterial,  provided 
the  purchaser  has  in  fact  been  deceived.  The  circumstances  under 
which  fraud  is  accomplished  are  so  varied,  the  nature  of  the  property 
and  the  character  of  the  misrepresentations  are  so  widely  different,  in 
different  cases,  that  it  is  unwise  to  attempt  to  enunciate  with  precision 
a  general  rule  by  which  all  cases  shall  be  governed.  It  is  better  to 
decide  the  cases  as  they  arise,  keeping  in  view  the  general  principle 
that  courts  will  not  readily  listen  to  the  plea  that  the  defrauded  party 


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612  STABKWEATHER  V.  BENJAMIN  [CHAP.  IV. 

was  too  easfly  deceived.    For  this  error  in  the  charge,  the  judgment 
will  be  reversed,  and  a  new  trial  granted. 
[Omitting  opinion  on  another  point.] 

Judgment  reversed.    New  trial  ordered.^ 


STARKWEATHER  v.  BENJAMIN 
SupREBiE  Court,  Michigan,  June  Term,  1875. 
Reported  in  32  Michigan  ReportSj  305. 

Error  to  Macomb  Circuit. 

Campbell,  J.  This  action  was  brought  to  recover  damages  arising  from 
alleged  misrepresentations  made  by  Starkweather  to  Benjamin  concerning  the 
quantity  of  land  in  a  parcel  purchased  from  Starkweather  and  others,  for 
whom  he  acted,  an(}  which  was  bought  by  the  acre. 

The  defence  rested  mainly  on  the  ground  that  the  purchaser  saw  the  land, 
and  was  as  able  to  judge  of  its  size  as  Starkweather. 

1  Martin  v,  Burford,  (C.  C.  A.)  181  Fed.  922;  Hutchinson  v.  Gorman,  71  Ark. 
306:  Scott  V.  Moore,  89  Ark.  321;  Montgomery  v.  McLaury,  143  Cal.  83;  Teague 
V.  Hall,  171  Cal.  668;  Eames  v.  Morgan,  37  111.  260;  Ladd  v.  Pigott,  114  HI.  647; 
Kehl  V,  Abram,  210  HI.  218  (public  records);  Backer  v.  Pyne,  130  Ind.  288  (rec- 
ords); McGibbons  v.  Wilder,  78  la.  531;  Faust  v,  Hoeford,  119  la.  97  (records); 
Scott  V.  Bumight  131  la.  507;  McKee  v.  Eaton,  26  Kan.  226  (records  ofpatent 
office);  Davis  v.  Jenkins,  46  Kan.  19  (records  of  land  office) ;  Carpenter  v,  Wright. 
62  Kan.  221  (deed  records);  Trimble  v.  Ward,  97  Ky.  748;  Martin  v.  Jordan,  60 
Me.  531;  Braley  v.  Powers,  92  Me.  203;  Harlow  v.  Perry,  113  Me.  239;  David  v. 
Park,  103  Mass.  601  (records  ofpatent  office);  Hoist  v.  Stewart,  161  Mass.  616; 
Rollins  V.  Quimby,  200  Mass.  162  (mortgage  records);  Jackson  v.  Armstrong,  60 
Mich.  65;  Smith  v.  Werkheiser,  152  Mich.  177:  Faribault  v,  Sater,  13  Minn.  223; 
Redding  v.  Wright,  49  Minn.  322;  Union  Bank  v.  Hunt,  76  Mo.  439;  Cottrill  r. 
Krum,  100  Mo.  397-  Stonemets  v.  Head,  248  Mo.  243;  Shearer  v.  Hill,  125  Mo. 
App.  375;  Gemer  v.  Mosher,  58  Neb.  135  (books  of  corporation);  Perry  v.  Rogers, 
62  Neb.  898;  Martin  v.  Hutton,  90  Neb.  34;  Bradbury  v.  Haines,  60  N.  H.  123; 
Blossom  V.  Barrett,  37  N.  Y.  434  (records  of  court);  Gage  v.  Peetsch.  16  Misc. 
291  (mortgage  records):  Blumenfield  v.  Stine,  42  Misc.  411  (records);  Blacknall  v, 
Rowland,  108  N.  C.  654;  Bank  of  North  America  v.  Stm-dy,  7  R.  1. 109;  Handy  i;. 
Waldron,  19  R.  I.  618  (failure  to  inquire  of  references);  Hunt  v.  Barker,* 22  R.  I. 
18  (deed  records);  Wright  v.  United  States  Mfg.  Co.,  (Tex.  Civ.  App.)  42  S.  W. 
789  (tax  records);  Chamberlain  v.  Rankin,  49  Vt.  133;  MorriU  v.  mmer,  68  Vt. 
1;  Jordan  v.  Walker,  115  Va.  109;  City  t^.  Tacoma  Lirfit  Co.,  17  Wash.  458; 
Sunons  v.  Cissna,  52  Wash.  115:  Borde  v.  Kingsley,  76  Wash.  613;  Hall  v.  Bank, 
143  Wis.  303  (records);  Woteshek  v.  Neuman,  151  Wis.  366;  Rogers  v.  Rosen- 
feld.  158  Wis.  285  Accord. 

See  Henry  v,  Allen,  93  Ala.  197;  Hanger  v.  Evins,  38  Ark.  334;  Wheeler  ». 
Baars,  33  Fla.  696  (records) ;  Forbes  v.  Thorpe,  209  Mass.  570.  Compare  Campbell 
V.  Frankem,  66  Ind.  591. 

Assertion  of  tide,  see:  Crandall  v.  Parks,  152  Cal.  772;  Hale  v.  Philbrick,  42 
la.  81 ;  Young  v.  Hopkins,  6  T.  B.  Mon.  18;  Cobb  v,  Wright,  43  Minn.  83;  Manley 
r.  Johnson,  85  Vt.  262. 

Statements  as  to  boundaries,  see:  Roberts  v.  Plaisted,  63  Me.  335;  Olson  i;. 
Orton,  28  Minn.  36;  Clark  v.  Baird,  Seld.  Notes,  187;  Schwenk  v.  Naylor,  102 
N.  Y.  683;  Roberts  v,  HoUiday,  10  S.  D.  576. 

Plaintiff  informed  of  truth  by  third  person,  see:  Moncrief  v.  Wilkinson,  93  Ala. 
373;  Haight  v.  Hayt,  19  N.  Y.  464;  Grosjean  v.  Galloway,  82  App.  Div.  380. 

Rdusal  of  defendant  to  ptU  representation  in  writing,  Ettlinger  v,  Weil,  184 
N.  y.  179. 


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CHAP.  IV.]  MABAKDY  V.  MCHUGH  613 

We  do  not  think  the  doctrine  that  where  both  parties  have  equal  means  of 
judging  there  is  no  fraud  applies  to  such  a  case.  The  maxim  is  equally  valid, 
that  one  who  dissuades  another  from  inquiry  and  deceives  him  to  his  prejudice 
is  responsible.  It  cannot  be  generally  true  that  persons  can  judge  of  the  con- 
tents of  a  parcel  of  land  by  the  eye.  When  any  approach  to  accuracy  is 
needed,  there  must  be  measurement.  When  a  positive  assurance  of  the  area 
of  a  parcel  of  land  is  made  by  the  vendor  to  the  vendee  with  the  design  of  mak- 
ing the  vendee  believe  it,  that  assurance  is  very  material,  and  equivalent  to  an 
assurance  of  measurement.  In  this  case  the  testimony  goes  very  far,  and 
shows  that  the  assertions  and  representations,  which  the  jury  must  have  found 
to  be  true,  were  of  such  a  nature  that  if  believed,  as  they  were,  a  re-survey 
must  have  been  an  idle  ceremony.  They  were  calculated  to  deceive,  and  as 
the  jury  have  found,  they  did  deceive  Benjamin,  and  he  had  a  clear  right  of 
action  for  the  fraud. 

[Omitting  remainder  of  opinion.]  Judgment  affirmed} 


MABARDY  v.  McHUGH 
SuPBEMB  Judicial  Coubt,  Massachusetts,  May  21, 1909. 
Reported  in  202  MaaeachusetU  Reports,  148.    • 

Tort  for  deceit  in  the  sale  of  land.  Writ  in  the  Superior  Court  for  the 
county  of  Middlesex  dated  January  18,  1906. 

The  case  was  tried  before  Stevens,  J.  The  facts  are  stated  in  the  opinion. 
The  jury  found  for  the  defendants;  and  the  plaintiffs  alleged  exceptions. 

RuGG,  J.  This  is  an  action  of  tort  sounding  in  deceit.  There  was  evidence 
tending  to  show  that  the  plaintiffs  went  upon  a  certain  irregularly  shaped 
tract  of  land  (for  false  representations  inducing  the  purchase  of  which  this 
action  was  brought)  with  one  of  the  defendants,  who  pointed  out  the  true 
boundaries  and  fraudulently  stated  that  the  tract  contained  sixty-five  acres, 
when  in  fact  it  contained  forty  and  three-fourths  acres.  Upon  this  aspect  of 
the  evidence,  the  trial  judge  instructed  the  jury  that  "  if  the  plaintiffs  .  .  . 
were  taken  over  the  farm  by  the  defendants  ...  or  [and]  were  shown  the 
bounds  so  that  the  plaintiffs  knew  where  the  farm  was  and  what  was  com- 
prised within  the  bounds,  it  would  not  be  of  any  consequence  that  represen- 
tations may  have  been  made  by  the  defendant  in  relation  to  the  acreage." 
The  evidence  being  conflicting  as  to  whether  the  boundaries  were  shown,  the 
jury  were  further  instructed  that  if  the  defendant,  who  talked  with  the  plain- 
tiffs, "  knew  that  there  were  not  sixty-five  or  nearly  sixty-five  acres,  or  if  he 
did  not  know  anything  about  it  and  stated  it  as  a  fact  within  his  personal 
knowledge,  then  it  would  be  a  false  representation  for  which  he  would  be 
liable  provided  "  the  other  elements  essential  to  a  recovery  were  found  to 
exist. 

The  correctness  of  the  first  of  these  instructions  is  challenged.  It  is  in 
exact  accordance  with  the  law  as  laid  down  in  Grordon  v,  Parmelee,  2  Allen, 

»  O'Neill  V,  Conway,  88  Conn.  661;  Antle  v.  Sexton,  137  111.  410;  Ledbetter  v. 
Davis,  121  Ind.  119:  Speed  v.  HollingBworth,  54  Kan.  436;  Judd  v.  Walker,  215 
Mo.  312;  Miller  v.  Wissert,  38  Okl.  808;  Farris  v.  Gilder,  (Tex.  Civ.  App.)  115 
8.  W.  645  Accord. 

Compare  Cawston  v.  Sturgis,  29  Or.  331.   And  see  Disney  v,  Lang,  90  Kan.  309. 


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614  MABARDY  V.  MCHUGH  [CHAP.  IV. 

212,  and  Mooney  v.  Miller,  102  Mass.  217.  The  facts  in  the  case  at  bar  are 
similar  in  all  material  respects  to  these  cases.  An  attempt  is  made  to  distin- 
guish them  on  the  ground  that  the  present  plaintiffs  were  Syrians,  ignorant  of 
our  language,  and  that  hence  a  trust  relation  existed  between  them  and  the 
defendant.  But  whatever  else  may  be  said  of  this  contention,  it  fails  because 
they  were  accompanied  by  two  of  their  own  countrjrmen,  whq  were  thoroughly 
familiar  with  our  language  and  acted  as  interpreters  for  them.  In  effect,  the 
contention  of  the  plaintiffs  amounts  to  a  request  to  overrule  these  two  cases. 
They  have  been  cited  with  approval  in  Roberts  v,  French,  153  Mass.  60,  and 
as  supporting  authorities,  without  criticism,  in  other  opinions.  The  court, 
however,  has  refused  to  apply  the  rule  of  those  decisions  to  other  facts  closely 
analogous.  See  Lewis  v,  Jewell,  161  Mass.  345;  Hoist  v.  Stewart,  161  Mass. 
516;  Whiting  v.  Price,  172  Mass.  240;  Kilgore  v.  Bruce,  166  Mass.  136.  This 
court  in  recent  years,  by  pointed  language  and  by  conclusions  reached,  has 
indicated  a  plain  disposition  not  to  extend  legal  immimity  for  the  falsehood  of 
vendors  in  the  course  of  negotiations  for  sales  beyond  the  bounds  already 
established.  .  .  . 

This  judicial  attitude  perhaps  reflects  an  increasingly  pervasive  moral 
sense  in  some  of  the  common  transactions  of  trade.  While  the  science  of 
jiuisprudence  is  not,  and  under  present  conditions  cannot  be,  coextensive 
with  the  domain  of  morality,  nor  generally  imdertake  to  differentiate  between 
motives  which  mark  acts  as  good  or  bad,  yet  it  is  true,  as  was  said  by  Mr.  Jus- 
tice Brett,  in  Robinson  v,  Mollett,  L.  R.  7  H.  L.  802,  817,  that  "  The  courts 
have  applied  to  the  mercantile  business  brought  before  them  what  have  been 
called  legal  principles,  which  have  almost  always  been  the  fundamental 
ethical  rules  of  right  and  wrong."  This  is  only  a  concrete  expression  of  the 
broader  generalization  that  law  is  the  manifestation  of  the  conscience  of  the 
Commonwealth. 

In  many  other  jurisdictions  the  rule  of  Gordon  v.  Parmelee  and  Mooney  v. 
Miller  has  not  been  followed  and  false  representations  as  to  area  of  land,  even 
though  true  boundaries  were  pointed  out,  have  been  held  actionable.  McGhee 
V.  Bell,  170  Mo.  121,  135,  150.  May  v.  Loomis,  140  N.  C.  350.  Boddy  v. 
Henry,  113  Iowa,  462,  465;  s.  c.  126  Iowa,  31.  Antle  v.  Sexton,  137  111.  410. 
Estes  V.  Odom,  91  Ga.  600,  609.  Lovejoy  v.  Isbell,  73  Conn.  368,  375.  Caw- 
ston  V.  Sturgis,  20  Ore.  331.  Starkweather  v.  Benjamin,  32  Mich.  305.  Paine 
V.  Upton,  87  N.  Y.  327.  Mitchell  v,  Zimmerman,  4  Texas,  75.  Walling  v, 
Kinnard,  10  Texas,  508.  Speed  v.  Hollingsworth,  54  Kans.  436.  See  also 
Fairchild  v,  McMahon,  139  N.  Y.  290;  Schumaker  v.  Mather,  133  N.  Y.  590. 

Other  cases  apparently  opposed  to  the  Massachusetts  rule,  on  examination 
prove  to  go  no  further  than  to  decide  that  misrepresentations  as  to  area,  when 
there  is  no  evidence  that  boundaries  were  shown,  constitute  deceit.  Griswold 
V,  Gebbie,  126  Penn.  St.  353.  Cabot  v,  Christie,  42  Vt.  121.  Coon  v.  Atwell, 
46  N.  H.  510.  Ledbetter  v,  Davis,  121  Ind.  119.  Perkins  Manuf.  Co.  ».  Wil- 
liams, 98  Ga.  388.  Sears  v.  Stinson,  3  Wash.  615.  Hill  v.  Brower,  76  N.  C. 
124.  Steams  v,  Kennedy,  94  Minn.  439.  This  is  the  substance  of  the  latter 
part  of  the  instruction  given  in  the  Superior  Court,  and  is  the  law  of  this 
Commonwealth. 

The  rule  of  Mooney  v.  Miller  seemingly  has  been  approved  or  followed  in 
Ljrnch  V.  Mercantile  Trust  Co.,  18  Fed.  Rep.  486;  Crown  v.  Carriger,  66  Ala. 
590;  and  Mires  v.  Summerville,  85  Mo.  App.  183,  although  the  last  case  has 
been  overruled  in  Judd  v.  Walker,  114  Mo.  App.  128,  135. 


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CHAP.  IV.]  MABARDY  V.  MCHUGH  615 

If  the  point  were  now  presented  for  the  first  time,  it  is  possible  that  wo 
might  be  convinced  by  the  argument  of  the  plaintiffs  and  the  great  weight  oi 
persuasive  authority  in  its  support,  especially  in  view  of  Lewis  v,  Jewell,  151 
Mass.  345.  But  there  is  something  to  be  said  in  support  of  the  two  earlier 
decisions  now  questioned.  A  purchase  and  a  sale  of  real  estate  is  a  trans- 
action of  importance  and  cannot  be  treated  as  entered  into  lightly.  People 
must  use  their  own  faculties  for  their  protection  and  information,  and  cannot 
assume  that  the  law  wiU  relieve  them  from  the  natural  effects  of  their  heed- 
lessness or  take  better  care  of  their  interests  than  they  themselves  do.  Thrift, 
foresight  and  self-reliance  would  be  undermined  if  it  was  the  policy  of  the 
law  to  attempt  to  afford  relief  for  mere  want  of  sagacity.  It  is  an  ancient  and 
widely,  if  not  universally,  accepted  principle  of  the  law  of  deceit  that,  where 
representations  are  made  respecting  a  subject  as  to  which  the  complaining 
party  has  at  hand  reasonably  available  means  for  ascertaining  the  truth  and 
the  matter  is  open  to  inspection,  if,  without  being  fraudulently  diverted 
therefrom,  he  does  not  take  advantage  of  this  opportunity,  he  cannot  be  heard 
to  impeach  the  transaction  on  the  ground  of  the  falsehoods  of  the  other  party. 
Salem  India  Rubber  Co.  v,  Adams,  23  Pick.  256, 265.  Slaughter  v.  Gerson,  13 
Wall.  379,  383.  Long  v,  Warren,  68  N.  Y.  426,  432.  Baily  v.  MerreU,  3 
Bulstr.  94.  This  rule  in  its  general  statement  applies  to  such  a  case  as  that 
before  us.  It  is  easy  for  one  disappointed  in  the  fruits  of  a  trade  to  imagine, 
and  perhaps  persuade  himself,  that  the  cause  of  his  loss  is  the  deceit  of  the 
other  party,  rather  than  his  own  want  of  judgment. 

It  is  highly  desirable  that  laws  for  conduct  in  ordinary  affairs,  in  them* 
selves  easy  of  comprehension  and  memory,  when  once  established,  should 
remain  fast.  The  doctrine  of  stare  decisis  is  as  salutary  as  it  is  well  recog- 
nized. .  .  .  While  perhaps  it  is  more  important  as  to  far-reaching  juridical 
principles  that  the  court  should  be  right,  in  the  light  of  higher  civilization, 
later  and  more  careful  examination  of  authorities,  wider  and  more  thorough 
discussion  and  more  mature  reflection  upon  the  policy  of  the  law,  than  merely 
in  harmony  with  previous  decisions  (Bwlen  v.  Northern  Pacific  Railroad,  154 
U.  S.  288,  322),  it  nevertheless  is  vital  that  there  be  stability  in  the  courts  in 
adhering  to  decisions  deliberately  made  after  ample  consideration.  Parties 
should  not  be  encouraged  to  seek  r^-examination  of  determined  principles  and 
speculate  on  a  fluctuation  of  the  law  with  every  change  in  the  expounders  of 
it.  As  to  many  matters  of  frequent  occurrence,  the  establishment  of  some  cer- 
tain guide  is  of  more  significance  than  the  precise  form  of  the  rule.  It  is 
likely  that  no  positive  rule  of  law  can  be  laid  down  that  will  not  at  some  time 
impinge  with  great  apparent  severity  upon  a  morally  innocent  person.  The 
law  of  gravitation  acts  indifferently  upon  the  just  and  the  unjust.  A  renewed 
declaration  of  law  that  is  already  in  force,  supported  by  sound  reason  and  not 
plainly  wrong,  in  the  long  run  probably  works  out  substantial  justice,  al- 
thou^  it  may  seem  harsh  in  its  application  to  some  particular  case.  These 
considerations  are  regarded  as  so  weighty  by  the  House  of  Lords  that  it  can- 
not overrule  any  of  its  own  decisions.  London  Tramways  Co.  v.  London 
County  Council,  [1898]  A.  C.  375. 

The  conclusion  is  that  we  do  not  overrule  the  decisions  whose  soundness 
has  been  debated  at  the  bar,  although  we  do  not  extend  their  scope,  but  con- 
fine them  strictly  to  their  precise  point,  namely,  that  where  the  seller  of  real 
estate  shows  upon  the  face  of  the  earth  its  true  boundaries  to  the  purchaser 
and  does  not  fraudulently  dissuade  him  from  making  full  examination  and 


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616  EASTERN  T.  &  B.  CO.  V.  CUNNINGHAM  [CHAP.  IV, 

measurement  and  the  estate  is  not  so  extensive  or  of  such  character  as  to  be 
reasonably  incapable  of  inspection  and  estimate,  and  there  is  no  relation  of 
trust  between  the  parties,  the  purchaser  has  no  remedy  for  a  misrepresenta- 
tion as  to  the  area  alone.  .  .  .  Exceptions  overruled} 


EASTERN  TRUST  &  BANKING  COMPANY  v. 
CUNNINGHAM 

Supreme  Court,  Maine,  February  20, 1908. 

Reported  in  103  Maine  Reports,  455. 

Savage,  J.  But  the  defendant  contends  further,  that,  if  the  plaintiff  did 
not  know,  it  ought  to  have  known,  and  would  have  known  but  for  its  own 
negligence.  We  think  this  defence  cannot  avail.  There  are  cases  which  hold 
that  where  one  carelessly  relies  upon  a  pretence  of  inherent  absurdity  and  in- 
credibility upon  mere  idle  talk,  or  upon  a  device  so  shadowy  as  not  to  be 
capable  of  imposing  upon  any  one,  he  must  bear  his  misfortune,  if  injured. 
He  must  not  shut  his  eyes  to  what  is  palpably  before  him.  But  that  doctrine, 
if  sound,  is  not  applicable  here.  We  think  the  well-settled  rule  to  be  applied 
here  is  that  if  one  intentionally  misrepresents  to  another  facts  particularly 
within  his  own  knowledge,  with  an  intent  that  the  other  sh«Jl  act  upon 
them,  and  he  does  so  act,  he  cannot  afterwards  excuse  himself  by  saying, 
"  You  were  foolish  to  believe  me."  It  does  not  lie  in  his  mouth  to  say  that  the 
one  trusting  him  was  negligent.  In  this  case  the  fact  whether  or  not  there 
were  funds  in  the  Gardiner  bank  to  meet  the  checks  was  peculiarly  within  the 
knowledge  of  the  defendant.  The  rule  is  stated  in  Pollock  on  Torts,  §  252, 
as  follows:  "  It  is  now  settled  law  that  one  who  chooses  to  make  positive 
assertions  without  warrant  shall  not  excuse  himself  by  saying  that  the  other 
party  need  not  have  relied  upon  them.  He  must  show  that  his  representation 
was  not  in  fact  relied  upon.  In  short,  nothing  will  excuse  a  culpable  mis- 
representation short  of  proof  that  it  was  not  relied  upon,  either  because  the 
other  party  knew  the  truth,  or  because  he  relied  wholly  on  his  own  investiga- 
tions, or  because  the  alleged  fact  did  not  influence  his  action  at  all."  In 
Linington  v.  Strong,  107  HI.  295,  we  find  this  language:  "  The  doctrine  is  well 
settled  that  as  a  rule  a  party  guilty  of  fraudulent  conduct  shall  not  be  allowed 
to  cry  *  negligence  '  as  against  his  own  deliberate  fraud.  .  .  .  While  the  law 
does  require  of  all  parties  the  exercise  of  reasonable  prudence  in  the  business 

1  Credle  v.  Swindell,  63  N.  C.  305;  Wamsley  v.  Currence,  25  W.  Va.  543  Accord. 

See  Cagney  v.  Cuson,  77  Ind.  494.    Compare  Lewis  v.  Jewell,  151  Mass.  345. 

Representations  as  to  matter  of  law,  see  Eaglesfield  v,  Londonderry,  4  Ch.  D. 
693, 702-703;  Mutual  Life  Ins.  Co.  v.  Phinney,  178  U.  S.  327;  Martin  v.  Wharton, 
38  Ala.  637;  Lehman  v.  Shackleford,  50  Ala.  437;  McDonald  v.  Smith,  95  Ark. 
523;  Kehl  w.  Abram,  210  Dl.  218;  Hill  v.  Coates,  127  lU.  App.  196;  Clodfelter  v. 
Hulett,  72  Ind.  137;  Kinney  v.  Dodge,  101  Ind.  573;  Whitman  v.  Atchison  R.  Co., 
85  Kan.  150;  Thompson  v.  Phoenix  Ins.  Co.,  75  Me.  55;  Stevens  v.  Odlin,  109  Me. 
417;  Bilafsky  v.  Conveyancers  Ins.  Co.,  192  Mass.  504;  Kerr  v.  Shurtleff,  218 
Mass.  167;  Kose  v.  Saunders,  38  Hun,  575;  Unckles  v.  Hentz,  18  Misc.  644;  More- 
land  V.  Atchison,  19  Tex.  303;  Texas  Cotton  Co.  v.  Denny,  (Tex.  Civ.  App.)  78 
S.  W.  557;  Gormely  v.  Gymnastic  Ass'n,  55  Wis.  350. 

Law  of  another  state,  see  Travelers  Protective  Ass'n  v.  Smith,  183  Ind.  59; 
Schneiders.  Schneider,  125  la.  1;  Anderson  v.  Heasley,  95  Kan.  572;  Wood  v, 
Roeder,  50  Neb.  476. 


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CHAP.  IVj  S.  PBAKSON  &  SON  V.  LORD  MAYOB  617 

of  life,  and  does  not  permit  one  to  rest  indififerent  in  reliance  upon  the  in- 
terested representations  of  an  adverse  party,  still,  as  before  suggested,  there 
is  a  certain  limitation  to  this  rule;  and,  as  between  the  original  parties  to  the 
transaction  we  consider  that,  when  it  appears  that  one  party  has  been  guilty 
of  an  intentional  and  deliberate  fraud  by  which  to  his  knowledge  the  other 
party  has  been  misled  or  influenced  in  his  action,  he  cannot  escape  the  legal 
consequences  of  his  fraudulent  conduct  by  saying  that  the  fraud  might  have 
been  discovered  had  the  party  whom  he  deceived  exercised  reasonable  dili* 
gence  and  care."  See  GrifSn  v.  Roanoke  R.  &  Lumber  Ck).,  140  N.  C.  514, 53 
S.  E.  307,  6  L.  R.  A.  (n.  b.)  463.^ 


S.  PEARSON  &  SON,  Limited,  v.  LORD  MAYOR  OF 
DUBLIN 

In  the  House  op  Lords,  May  30, 1907. 
Reported  in  [1907]  Appeal  Cases,  351. 

The  Dublin  Corporation  having  by  their  agents  furnished  the  appellants 
with  plans,  drawings,  and  specifications,  the  appellants  contracted  to  execute 
certain  sewage  outfall  works  according  to  the  plans,  &c.  In  the  plans,  &c., 
representations  were  made  as  to  the  existence  and  position  of  a  certain  wall. 
In  the  contract  (clauses  43,  46,  47,  48)  it  was  stipulated  that  the  contractor 
should  satisfy  himself  as  to  the  dimensions,  levels  and  nature  of  all  existing 
works  and  other  things  connected  with  the  contract  works;  that  the  corpora- 
tion did  not  hold  itself  responsible  for  the  accuracy  of  the  information  as  to 
the  sections  or  foundations  of  existing  walls  and  works;  and  that  no  charges 
for  extra  work  or  otherwise  would  be  allowed  in  consequence  of  incorrect  in- 
formation or  inaccuracies  in  the  drawings  or  specifications.  The  appellants 
performed  the  contract,  and  brought  an  action  of  deceit  against  the  corpora- 
tion, claiming  damages  for  false  representations  as  to  the  position,  dimensions 
and  foundations  of  the  wall,  whereby  the  appellants  were  compelled  to  exe- 
cute more  costly  works  than  would  otherwise  have  been  required.  The  plans, 
drawings  and  specifications  were  prepared  by  engineers  employed  by  the 
corporation.' 

[At  the  trial  before  Palles,  C.  B.,  the  plaintiffs  offered  evidence  tending 
to  show  that  the  aforesaid  representations  were  not  sincerely  believed  by  the 
engineers  to  be  true.]  Palles,  C.  B.,  refused  to  leave  anj*^  question  to  the  jury, 
and  entered  judgment  for  the  respondents  on  the  ground  that  the  contractors 
were  bound  by  their  contract  to  verify  for  themselves  all  the  information 
given  in  the  plans,  &c. 

The  King's  Bench  Division  (Wright,  Boyd,  and  Gibson,  JJ.,  Lord  O'Brien, 
C.  J.,  dissenting)  reversed  the  decision  of  Palles,  C.  B.,  and  entered  judgment 
for  the  appellants  on  the  ground  that  there  was  a  question  of  fact  for  the  jury 
upon  the  allegation  of  fraud. 

*  "  This  contention  assumes  that  the  defrauded  party  owes  to  the  partv  who 
defrauded  him  a  duty  to  use  diligence  to  discover  the  fraud.  There  is  no  such  obli- 
gation. One  who  perpetrates  a  fraud  cannot  complain  because  his  victim  continues 
to  have  a  confidence  which  a  more  vigilant  person  could  not  have.''  Carpenter,  J., 
in  Smith  v.  McDonald,  139  Mich.  226,  229.  See^arley  r.  Walford,  9  Q.  B.  197, 
209.    Compare  Thaler  v.  Neidermeyer,  185  Mo.  App.  257. 

*  The  statement  has  been  redrawn  and  only  parts  of  the  opinion  are  printed. 


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618  S.  PEARSON  &  SON  V.  LORD  MAYOR     [CHAP.  IV. 

The  Court  of  Appeal  (Sir  Samuel  Walker,  L.  C,  Fitzgibbon  and  Holmes, 
L.  JJ.)  reversed  that  decision,  and  restored  the  decision  of  Palles,  C.  B. 

Plaintiff  appealed  to  the  House  of  Lords. 

The  House  .of  Lords  (Lords  Loreburn,  Halsburt,  Ashbourne,  Mac- 
NAGHTEN,  James  OF  HEREFORD,  RoBBRTSON,  Atkinson,  and  CoLLiNs)  re- 
versed the  order  of  the  Court  of  Appeal,  and  restored  the  judgment  of  the 
King's  Bench  Division.    Portions  of  the  opinions  are  as  follows:  — 

Lord  LoREBTjRN,  L.  C.  .  .  .  Now  it  seems  clear  that  no  one  can  escape  lia- 
bility for  his  own  fraudulent  statements  by  inserting  in  a  contract  a  clause 
that  the  other  party  shall  not  rely  upon  them.  I  will  not  say  that  a  man  him- 
self innocent  may  not  under  any  circumstances,  however  peculiar,  guard  him- 
self by  apt  and  express  clauses  from  liability  for  the  fraud  of  his  own  agents. 
It  suffices  to  say  that  in  my  opinion  the  clauses  before  us  do  not  admit  of  such 
a  construction.  They  contemplate  honesty  on  both  sides  and  protect  only 
against  honest  mistakes.  The  principal  and  the  agent  are  one,  and  it  does  not 
signify  which  of  them  made  the  incriminated  statement  or  which  of  them  pos- 
[  the  guilty  knowledge. 


Earl  of  Halsburt.  .  .  .  The  action  is  based  on  the  allegation  of  fraud, 
and  no  subtilty  of  language,  no  craft  or  machinery  in  the  form  of  contract,  can 
estop  a  person  who  complains  that  he  has  been  defrauded  from  having  that 
question  of  fact  submitted  to  a  jury.  .  .  . 

Lord  Ashboxtrnb.  ...  [As  to  clause  43.]  Such  a  clause  might  in  some 
cases  be  part  of  a  fraud,  and  might  advance  and  disguise  a  fraud,  and  I  can- 
not think  that  on  the  facts  and  circumstances  of  this  case  it  can  have  such  a 
wide  and  perilous  application  as  was  contended  for.  Such  a  clause  may  be 
appropriate  and  fairly  apply  to  errors,  inaccuracies,  and  mistakes,  but  not  to 
cases  like  the  present.  .  .  . 

Lord  James  OF  Hereford.  .  .  .  Now  the  learned  Chief  Baron  in  respect 
of  this  clause  expressed  the  opinion  that  the  contractor  was  not  entitled  in 
point  of  law  to  say  he  acted  upon  the  statement  contained  in  the  plans.  He 
was  told  to  act  upon  his  own  judgment,  and  ought  to  have  done  so. 

If  this  dictum  be  read  as  general  in  its  terms,  and  so  applied,  it  may  be  read 
as  conferring  considerable  advantage  upon  the  designers  of  fraud.  At  any 
rate,  by  inserting  such  a  clause  those  who  framed  it  would  run  a  fair  chance  of 
the  contractor  saying,  "  I  assume  that  those  with  whom  I  deal  are  honest  and 
honorable  men.  I  scout  the  idea  of  their  being  guilty  of  fraud.  An  inquiry 
testing  the  plan  will  be  expensive  and  difficult,  and  so  I  will  not  make  it.'' 
The  protecting  clause  might  be  inserted  fraudulently,  with  the  purpose  and 
hope  that,  notwithstanding  its  terms,  no  test  would  take  place.  When  the 
fraud  succeeds,  surely  those  who  designed  the  fraudulent  protection  cannot 
take  advantage  of  it.  Such  a  clause  would  be  good  protection  against  any 
mistake  or  miscalculation,  but  fraud  vitiates  every  contract  and  every  clause 
in  it.  As  a  general  principle  I  incline  to  the  view  that  an  express  term  that 
fraud  shall  not  vitiate  a  contract  would  be  bad  in  law,  but  it  is  unnecessary  in 
this  case  to  determine  whether  special  circmnstances  may  not  create  an  excep- 
tion to  that  rule. 


Lord  Atkinson.  .  .  .  If,  therefore,  the  diredion  given  to  the  jury  is  to  be 
upheld  on  the  grounds  upon  which  it  was  purported  to  be  based,  it  must,  in 
my  opinion,  be  because  these  several  articles  of  the  contract,  on  their  true  con- 


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CHAP.  IV.]  S.  PEARSON  A  SON  V.  LORD  MAYOR  619 

struction,  are  to  be  held  to  embody  a  contract  by  the  plaintiffs  that  they  in 
effect  are  not,  under  any  circumstances,  to  have  a  remedy  by  action  for  deceit 
for  any  fraud  which  may  be  practised  upon  them  by  the  defendants  or  by 
those  acting  on  their  behalf  in  the  nature  of  a  false  representation,  that  is  a 
contract  to  submit  to  a  fraud. 

As  at  present  advised  I  am  inclined  to  think,  on  the  authority  of  TuUis  v. 
Jacson,  [1892]  3  Ch.  441,  and  Brownlie  v.  Campbell,  (1880)  6  App.  Cas.  925, 
937, 956,  that  such  a  contract  would  be  illegal  in  point  of  law.  And,  with  the 
most  profound  respect  for  the  Chief  Baron,  I  do  not  think  that  the  articles  of 
the  contract  relied  upon  can,  on  their  true  construction,  be  held  to  have  had 
fraud,  whether  conscious  or  unconscious,  within  their  purview  or  contempla- 
tion, or  to  apply  at  all  to  such  a  case  of  fraud  as  the  present  is  alleged  to  be. 
They  were,  I  think,  intended  to  apply,  and  do  apply,  to  inaccuracies,  errors, 
and  mistakes,  or  matters  of  that  sort,  but  not  to  fraud,  whether  of  principal  or 
agent,  or  of  both  combined.* 


1  See  Hicks  v,  Stevens,  121  lU.  186. 


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CHAPTER  V 
MALICTOUS  PROSECUTION  AND  ABUSE  OP  PROCESS 

HALBERSTADT  v.  NEW  YORK  LIFE  INSURANCE  CO. 

CouBT  OF  Appeals,  New  York,  January  5, 1909. 

Reported  in  194  New  York  Reports,  1. 

The  action  is  brought  to  recover  damages  for  an  alleged  malicious 
prosecution  claimed  to  have  been  instituted  by  the  respondent  against 
the  appellant  in  Mexico.  It  is  in  the  complaint,  amongst  other  things, 
alleged  that  the  respondent  through  its  agent  in  the  Criminal  Court 
of  the  city  of  Mexico  charged  the  appellant  with  the  crime  of  em- 
bezzlement "  and  thereupon  and  in  and  by  virtue  of  said  charge  and 
the  institution  of  said  criminal  proceedings  a  warrant  was  issued  by 
said  court  for  the  arrest  of  the  plaintiff  (in  this  action),''  and  that 
thereafter  ''  the  said  criminal  proceedings  for  the  punishment  of  said 
plaintiff  were  dismissed  and  extimguished  and  the  said  prosecution 
was  thereby  wholly  determined  ...  in  favor  of  the  plaintiff." 

The  respondent,  by  its  second  defence,  which  is  challenged  here 
for  insufficiency,  alle^,  in  substance,  that  before  the  warrant  referred 
to  in  the  complaint  could  be  served  upon  the  appellant  and  before  he 
could  be  apprehended,  "  he  left  the  RepubUc  of  Mexico  and  there- 
after continuously  remained  absent  .  .  .  and  by  such  absence  avoided 
being  arrested  under  such  wanant,  or  being  tried  .  .  .  but  remained 
absent  from  said  RepubUc  of  Mexico  for  a  sufficient  period  of  time  to 
enable  him  to  procure  the  dismissal  of  said  proceedings  under  the  law 
of  Mexico  on  account  solely  of  the  lapse  of  time/'  and,  conversely,  that 
said  criminal  proceedings  "  were  not  dismissed  on  account  of  a  deter- 
mination of  the  case  in  favor  of  the  plaintiff  on  the  trial  thereof  on  the 
merits,  nor  was  it  dismissed  for  failure  to  prosecute  said  case  except  as 
above  set  forth,  nor  was  it  dismissed  on  account  of  any  withdrawal  of 
the  complaint." 

The  plaintiff  demurred  to  this  defence  and  also  to  the  third  defence 
which  was  not  materially  different  from  the  second.  The  demurrer 
was  sustained  at  Special  Term.  This  judgment  was  reversed  by  the 
General  Term,  and  the  plaintiff  now  appeals.* 

HiscocK,  J.  The  respondent's  first  reply  to  the  appellant's  attack 
upon  its  answer  is  of  the  tu  quoque  nature,  it  insisting  that  the  com- 
plaint is  as  deficient  in  the  statement  of  a  good  cause  of  action  as  the 

^  The  statement  of  the  case  has  been  abridged  and  only  a  part  of  the  opinion  is 
given. 

620 


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CHAP,  v.]     HALBBRSTADT  V.  NEW  YORK  LIFE  INS.  CO.  621 

answer  is  alleged  to  be  in  the  statement  of  a  good  defence.  This  con- 
tention is  based  upon  the  fact  that  the  complaint  does  not  allege  any 
act  subsequent  or  in  addition  to  the  mere  issuance  of  a  warrant  in  the 
criminal  proceeding  complained  of;  does  not  allege  that  the  warrant 
was  ever  executed  in  any  way  whatever,  or  that  the  appellant  was  ever 
actually  brought  into  said  proceedings  either  by  force  of  process  or 
voluntary  appearance.  Therefore,  the  question  is  presented  whether 
the  mere  appHcation  for  and  issuance  to  a  proper  oflBcer  for  execution 
of  a  warrant  on  a  criminal  charge  may  institute  and  constitute  such  a 
prosecution  as  may  be  made  the  basis  of  a  subsequent  civil  action  by 
the  party  claimed  to  have  been  injured.  In  considering  this  question 
we  must  keep  in  mind  that  the  facts  alleged  in  the  complaint,  and  in 
the  light  of  which  it  is  to  be  determined,  do  not  show,  as  the  answer 
does,  that  the  defendant  in  those  proceedings  was  beyond  the  juris- 
diction of  the  court. 

This  question  does  not  seem  to  have  been  settled  by  any  decision 
which  we  regard  as  controlling  on  us. 

The  respondent  cites  the  following  authorities  deciding  it  in  the 
n^ative:  Newfield  v.  Copperman,  15  Abb.  Pr.,  n.  s.,  360;  Lawyer  v. 
Loomis,  3  T.  A  C.  393;  Cooper  v.  Armom-,  42  Fed.  215;  Heyward 
V.  Cuthbert,  4  McCord,  354;  O'DriscoU  v.  M'Bumey,  2  Nott  A 
McCord,  54;  Bartlett  v.  Cristliflf,  14  Atl.  R.  518;  Gregory  v.  Derby, 
8  C.  A  P.  749;  Paul  v.  Fargo,  84  App.  Div.  9. 

The  case  last  cited  was  concerned  with  an  alleged  malicious  prose- 
cution by  means  of  civil  process  and  what  was  there  said  must  be 
interpreted  with  reference  to  that  fact,  and  thus  interpreted  it  is  not 
appUcable  here.  Of  the  other  cases,  only  two,  Heyward  v.  Cuthbert 
and  Cooper  v.  Armour,  considered  the  question  here  involved  with 
sufficient  thoroughness  to  require  brief  comment.  An  examination 
will  show  that  the  decision  in  each  of  them  rested  in  whole  or  part  on 
a  principle  not,  as  I  believe,  adopted  in  this  state.  In  the  former  it 
was  said  that  "  The  foundation  of  this  sort  of  action  is  the  wrong  done 
to  the  plaintiff  by  the  direct  detention  or  imprisonment  of  his  person.'' 
As  I  think  we  rfiall  see  hereafter,  that  is  not  a  correct  statement  of 
the  law  in  this  state.  In  the  other  case  it  was  stated,  "  The  only  in- 
jury sustained  by  the  person  accused,  when  he  is  not  taken  into  cus- 
tody, and  no  process  has  been  issued  against  him,  is  to  his  reputation; 
and  for  such  an  injury  the  action  of  libel  or  slander  is  the  appropriate 
remedy,  and  would  seem  to  be  the  only  remedy."  I  think  that  this 
doctrine,  which  if  correct  would  provide  an  adequate  remedy  outside 
of  an  action  for  malicious  prosecution  for  an  injured  party  in  a  case 
where  no  warrant  had  been  executed,  also  is  opposed  to  the  weight  of 
authority  both  in  this  state  and  elsewhere  hereafter  to  be  referred  to. 

The  authorities  holding  to  the  contrary  on  the  question  above 
stated,  and  that  the  execution  of  the  warrant  is  not  necessary  to  lay 
the  foundation  for  an  action  of  malicious  prosecution,  are:  Addison 


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622  HALBERSTADT^t;.  NEW  YORK  LIFE  INS.  CO.      [C!HAP.  V. 

on  Torts,  vol.  2  [4th  Eng.  ed.],  p.  478;  Newell  on  Malicious  Prosecu- 
tion, sect.  30;  Stephens  on  MaUcious  Prosecution,  Am.  ed.,  sect.  8; 
Stapp  V.  Partlow,  Dudley's  Repts.,  (Ga.)  176;  Clarke  v.  Postan,  6  C. 
&  P.  423;  Fezale  v.  Simpson,  2  111.  30;  Britton  v.  Granger,  13  Ohio  Cir. 
Ct.  Repts.  281, 291;  Holmes  v.  Johnson,  Busbee's  L.  R.  44;  Coffey  v. 
Myers,  84  Ind.  106. 

And  to  the  like  effect  in  the  absence  of  special  statutory  provisions 
in  Swift  V.  Witchard,  103  Ga.  193. 

Thus  it  is  apparent,  as  before  stated,  that  there  is  no  controlling 
decision  on  this  question  and  we  are  remitted  to  a  search  for  some 
general  considerations  which  may  be  decisive.  It  seems  to  me  that 
these  may  be  found  and  that  they  favor  the  view  that  a  prosecution 
may  be  regarded  as  having  been  instituted  even  though  a  warrant  has 
not  been  executed. 

The  first  one  of  these  considerations  is  foimd  in  the  rule  applied  in 
•civil  actions  and  proceedings  to  an  analogous  situation.  There  it  has 
many  times  been  held  that  the  mere  issue  of  various  forms  of  civil 
process  for  service  or  other  execution  is  sufficient  independent  of 
43tatute  to  effect  the  commencement  of  a  case  or  proceeding.  Carpen- 
ter V.  Butterfield,  3  Johns.  Cases,  146;  Cheetham  v.  Lewis,  3  Johns. 
42;  Bronson  v.  Earl,  17  Johns.  63;  Ross  v.  Luther,  4  Cowen,  168; 
Mills  V.  Corbett,  8  How.  Pr.  600;  Hancock  v.  Ritchie,  11  Ind.  48,  62; 
Howell  V.  Shepard,  48  Mich.  472;  Webster  v.  Sharpe,  116  N.  C.  466, 
471. 

I  see  no  reason  why  a  similar  rule  should  not  be  applied  to  criminal 
proceedings,  at  least  for  the  purposes  of  such  an  action  as  this. 

Then  there  is  another  reason  resting  on  justice  which  seems  to  me 
to  lead  us  to  adopt  this  conclusion.  In  opposition  to  what  was  said 
in  the  South  Carolina  case  already  referred  to,  the  sole  foundation  for 
an  action  of  malicious  prosecution  is  not "  the  wrong  done  to  the  plain- 
tiff by  the  direct  detention  or  imprisonment  of  his  person."  In  an 
action  for  false  imprisonment  that  would  be  so.  But  in  an  action 
of  the  present  type,  the  substantial  injury  for  which  damages  are 
recovered  and  which  serves  as  a  basis  for  the  action  may  be  that  in- 
flicted upon  the  feelings,  reputation  and  character  by  a  false  accusa- 
tion as  well  as  that  caused  by  arrest  and  imprisonment.  This  element 
"  indeed  is  in  many  cases  the  gravamen  of  the  action."  Sheldon  v. 
Carpenter,  4  N.  Y.  679,  680;  Woods  v.  Fmnell,  13  Bush  Repts.  628; 
Townsend  on  Slander,  sec.  420;  Wheeler  v.  Hanson,  161  Mass.  370; 
Gundermann  v.  Buschner,  73  111.  App.  180;  Lawrence  v.  Hagerman, 
66  ni.  68;  Davis  v.  Seeley,  91  Iowa,  683. 

But  no  matter  how  false  and  damaging  the  charge  may  be  in  a 
criminal  proceeding  upon  which  a  warrant  may  be  issued,  damages  for 
the  injury  caused  thereby  cannot  under  any  ordinary  circumstances 
be  recovered  in  an  action  for  hbel  or  slander.  Howard  v.  Thompson, 
21  Wend.  319,  324;  Woods  v.  Wiman,  47  Hun,  362,  364;  Sheldon  v. 


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CHAP,  v.]     HALBERSTADT  V.  NEW  YORK  LIFE  INS.  CO.  623 

Carpenter,  supra;  Dale  v.  Harris,  109  Mass.  193;  Gabriel  v.  McMul- 
lin,  127  Iowa,  427;  Hamilton  v.  Eno,  81  N.  Y.  116;  Newell  on  Mali- 
cious Prosecution,  sec.  10. 

Therefore,  it  follows  that  a  person  who  has  most  grievously  injured 
another  by  falsely  making  a  serious  criminal  accusation  against  him 
whereon  a  warrant  has  been  actually  issued,  may  escape  all  liability 
by  procuring  the  warrant  at  that  point  to  be  withheld  unless  an  action 
for  maUcious  prosecution  will  lie.  It  seems  to  me  that  imder  sucti 
circumstances  we  should  hold  that  such  action  will  lie,  if  for  no  other 
reason  than  to  satisfy  that  principle  of  law  which  demands  an  ade^ 
quate  remedy  for  every  legal  wrong.^  .  .  . 

Vann,  J.  I  concur  in  the  result  because  there  was  merely  an  at- 
tempt to  prosecute  with  no  actu^J  prosecution.  The  Mexican  court 
did  not  acquire,  jurisdiction  of  the  person  of  the  plaintiff,  for  he  was 
not  arrested,  nor  was  process  or  notice  of  any^dnd  served  upon  him. 
He  was  not  brought  into  court  and  the  prosecution  could  not  end  be- 
cause it  was  never  begun.  He  could  not  be  a  party  defendant  imtil 
he  was  notified  or  voluntarily  appeared.  He  was  threatened  with 
prosecution,  but  neither  his  person  nor  his  property  was  touched. 
There  can  be  no  prosecution  imless  knowledge  thereof  is  brought 
home  to  the  alleged  defendant  in  some  way.  If  there  had  been  a 
prosecution  commenced  the  crime  could  not  have  outlawed  during  the 
defendant's  absence,  as  is  admitted  of  record.  While  in  civil  actions, 
in  order  to  arrest  the  Statute  of  Limitations,  "  an  attempt  to  com.- 
mence  an  action,  in  a  court  of  record,  is  equivalent  to  the  commence- 
ment thereof,"  still  the  attempt  goes  for  naught  imless  followed  by 
service,  actual  or  constructive,  within  sixty  days.  (Code  Civil  Proc. 
§  399.)  The  rule  was  similar  at  conunon  law.  Although,  in  order 
to  prevent  injustice,  an  action  was  deemed  to  be  commenced  by  the 
delivery  of  process  for  service,  it  was  never  treated  as  effectual  for 
any  purpose  imless  actual  service  was  subsequently  made.  The  au- 
thorities cited  in  the  prevailing  opinion  illustrate  this  proposition. 

In  the  absence  of  controlling  authority,  which  it  is  conceded  does 
not  exist,  I  favor  restricting  rather  than  enlarging  the  scope  of  the 
action.  This  accords  with  the  general  position  of  the  court  upon  the 
subject. 

Gray,  Haight  and  Chase,  JJ.,  concur  with  Hiscock,  J.;  Cullbn^ 
Ch.  J.,  and  Willard  Bartlett,  J.,  concur  with  Vann;  J. 

Order  affirmed^ 

1  The  court  dedaed  that  the  answer  was  good. 

'  In  accordance  with  the  opinion  of  the  majority  of  the  court  see  Clarke  v. 
Postan,  6  Car.  &  P.  423;  Stapp  v.  Partlow,  Dudley,  (Ga.)  176;  Feaale  v,  Simpson, 
2  Dl.  30  (aembU);  Holmes  v.  Johnson,  Busbee,  44;  Britton  v.  Granger,  13  Ohio 
Cir.  Ct.  Rep.  281,  291. 

In  accordance  with  the  opinion  of  the  minority  see  Gregory  v.  Derby,  8  Car.  &  P. 
749,  750  (semble);  Cooper  v.  Armour,  42  Fed.  215,  217;  Sheppard  v.  Fumiss,  19 
Ala.  760  (semble):  Davis  v,  Sanders,  133  Ala.  276,  278  (semble);  Newfield  v, 
Copperman,  15  Abb.  Pr.  n.  b.  360  (semble);  Lawyer  v.  Loomis,  3  Th.  &  C.  393, 


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624  BYNE  V.  MOORE  [CHAP.  V. 

CHAMBEBS  v.  ROBINSON 

At  Nisi  Prius,  Coram  Raymond,  C.  J.,  Hilary  Term,  1726. 

Reported  in  2  Strange^  691. 

An  action  for  a  malicious  prosecution  of  an  indictment  for  perjury. 
Upon  the  trial  it  appeared,  the  perjury  was  ill-assigned,  so  that  the  now 
plaintiff  could  not  have  been  convicted;  and  that  exception  was  taken  to  it 
by  the  judge,  and  he  was  acquitted  without  any  examination  of  witnesses. 
But  the  Chief  Justice  held  the  action  lay,  thou^  it  was  a  faulty  indictment, 
relying  upon  the  case  of  Jones  v.  Gwynn,  where  the  distinction  in  Salk.  13 
was  deni^,  and  held  by  the  whole  court  that  the  action  would  lie,  thou^  the 
indictment  was  ]^;  a  bad  indictment  serving  all  the  purposes  of  malice,  by 
putting  the  party  to  expense,  and  exposing  him,  but  it  serves  no  purpose  of 
/  justice  in  bringing  the  party  to  punishment  if  he  be  guilty.^ 


BYNE  V.  MOORE 

In  the  Common  Pleas,  November  13, 1813. 

Reported  in  5  TaunUm,  187.' 

This  was  an  action  for  a  malicious  prosecution  in  indicting  the  plaintiff 
for  an  assault  and  battery.  The  only  evidence  on  the  part  of  the  plaintiff 
being,  that  the  biU  was  preferred  and  not  f oimd.  Lord  Chief  Baron  Macdonald 
who  tried  the  cause,  nonsuited  him.' 

395;  Mitchell  v.  Donanski,  28  R.  I.  94:  O'Drisooll  v.  McBumey,  2  N.  &  McC.  54 
(sernbU) ;  Heyward  v.  Cuthbert,  4  McC.  354  {eembU), 

Compare  Swift  v.  Witchard,  103  Ga.  193. 

Arrest  without  warranty  not  followed  by  prosecution,  see  Auerbach  v.  Freeman, 
43  App.  D.  C.  176;  McDonald  v.  National  Art  Co.,  69  Miac.  325. 

Secarch  warrant  issued  hut  no  arrest  or  seizure  of  property f  see  Gulsby  v,  Louis- 
ville R.  Co.,  167  Ala.  122;  Hardin  v.  Eight,  106  Ark.  190;  Chicago  R.  Co.  v. 
Holliday,  30  Okl.  680;  Olson  v.  Haggerty,  69  Wash.  48. 

Application  for  a  warranty  none  issued,  see  Schneider  v.  Schlang,  159  App.  Div. 
385.    But  see  Kashare  v.  Robbins,  135  N.  Y.  Supp.  1041. 

Some  jurisdictions,  however,  require  l^al  process  of  at  least  prima  facie  valid- 
ity. See  Strain  v.  Irwin,  195  Ala.  414;  Smith  v.  Brown,  119  Md.  236;  Tiede  v. 
Fuhr,  264  Mo.  622;  Seguaky  v.  Williams,  89  S.  C.  414. 

Cf .  Grissom  v.  Lawler,  10  Ala.  App.  540  (j^aintiff  gave  bond  after  complaint,  so 
no  process  issued). 

1  Pippet  V,  Ream,  5  B.  &  Al.  634;  Rutherford  v.  l>er,  146  Ala.  665;  Peterson 
V,  Hoyt,  4  Alaska,  713;  Harrington  v.  Tibbet,  143  CJal.  78;  Streight  v.  Bell,  37 
/Ind.  560;  Shaul  v.  Brown,  28  la.  37;  Bell  v.  Keepers,  37  Kan.  64;  Potter  v, 
Gjertsen,  37  Minn.  386;  Stocking  v,  Howard,  73  Mo.  25;  Hackler  v.  Miller,  79 
Neb.  209;  Dennis  v.  Ryan,  65  N.  Y.  385;  Kline  v.  Shuler,  8  Ired.  484;  Chicago 
R.  Co.  V,  HoUiday,  30  Okl.  680;  Ward  ».  Sutor,  70  Tex.  343;  Strehlow  v.  Pettit, 
96  Wis.  22;  Mcintosh  v.  Wales,  21  Wyo.  397  Accord, 

Alexander  v.  West,  6  Ga.  App.  72  Contra. 

Prosecution  under  unconstitutional  statute:  Miui«n  v.  Garbe,  91  Neb.  439. 

Court  without  jurisdiction:  Calhoim  v,  Bdl,  136  La.  149.  Compare  Grorud  v. 
Lossl,  48  Mont.  274. 

*  1  Marsh.  12,  s.  c. 

*  The  statement  oi  the  case  has  been  taken  from  1  Marsh.  12;  the  arguments  of 
counsel  are  omitted. 


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CHAP.  V.3  STEWARD  V.  X3ROMETT  625 

Best,  Serjt.y  had  obtained  a  rule  nisi  to  set  aside  that  nonsuit  and  have  a 
new  trial;  against  which 

Shepherd,  Serjt.,  showed  cause. 

Mansfield,  C.  J.  I  feel  a  difficulty  to  understand  how  the  plaintiff  could 
recover  in  the  present  action,  wherein  he  could  recover  no  damages,  because 
he  clearly  has  not  proved  that  he  has  sustained  any:  I  can  understand  the 
ground  upon  which  an  action  shall  be  maintained  for  an  indictment  which 
contains  scandal,  but  this  contains  none,,  nor  does  any  danger  of  imprisonment 
result  from  it:  this  bill  was  a  piece  of  mere  waste  paper.  All  the  cases  in 
Buller's  Nisi  Prius,  13,  are  directly  against  this  action,  for  the  author  speaks 
of  putting  the  plaintiff  to  expense,  and  alFecting  his  good  fame,  neither  of 
which  could  be  done  here.  If  this  action  could  be  maintained,  every  bill  which 
the  grand  jury  threw  out  would  be  the  groimd  of  an  action.  The  judge  too 
might  certify  in  this  cause  against  the  costs,  if  the  damages  had  been  imder 
408. 

Heath,  J.,  concurred. 

Chambre,  J.  It  would  be  a  very  mischievous  precedent  if  the  action  could 
be  supported  on  this  evidence.  Rtde  discharged} 


STEWARD  V.  GROMETT 

In  thb  Common  Pleas,  November  11, 1859. 

Reported  in  7  Common  Bench  Reports,  New  Series,  191. 

Erle,  C.  J.'  I  am  of  opinion  that  our  judgment  in  this  case  must  be  for 
the  plaintiff.  It  is  an  action  against  the  defendant  for  falsely  and  maliciously^ 
and  without  reasonable  or  probable  cause,  making  information  on  oath  before 
a  magistrate  that  the  plaintiff  had  used  threatening  language  to  him,  whereby 
he  went  in  fear  of  bodily  harm,  and  so  procuring  a  warrant  imder  which  the 
plaintiff  was  incarcerated  in  the  castle  at  Swaffham,  for  want  of  sureties,  for 
a  period  of  six  months.  It  is  admitted  on  the  pleadings  that  the  defendant 
did  falsely  and  maliciously,  and  without  reasonable  or  probable  cause,  pro- 
cure that  wrong  to  be  done  to  the  plaintiff;  and  the  qu^ion  is  whether  the 
declaration  shows  enough  to  entitie  the  plaintiff  to  maintain  an  action  for 
that  wrong.  This  is  in  some  sort  an  action  for  a  malicious  prosecution;  and 
it  has  been  contended  by  Mr.  Couch,  for  the  defendant,  that  the  case  falls 
within  the  ordinary  rule  applicable  to  such  actions,  that  the  plaintiff  must 
show  that  the  proceeding  terminated  in  his  favor,  and  that  no  action  lies 
where  they  are  shown  to  have  terminated  against  the  accused.  But  I  am  of 
opinion  that  the  distinction  taken  by  Mr.  Keane  removes  that  objection,  and 
shows  that  that  rule  does  not  apply  to  this  case,  because  the  proceeding  before 
the  magistrate  being  founded  upon  a  statement  which  the  party  charged  is 
not  at  liberty  to  controvert,  is  an  ex  parte  proceeding,  and,  although  it  attains 
the  result  which  is  sought,  it  is  not  a  judgment,  but  is  in  the  nature  of  a  writ 

»  See  Saville  v,  Roberts,  1  Ld.  Ray.  374;  12  Mod.  208,  s.  c. 

*'  It  is  difficult  to  see  on  what  grounds  it  can  be  maintained  that  a  charge  of 
breaking  the  peace  conv^  no  imputation  on  the  character  of  the  person  changed, 
and  it  may  be  doubted  whether  the  authority  of  the  cases  above  mentioned  (Byne 
».  Moore  and  Saville  v.  Roberts)  would  now  be  recognized  on  this  point."  Clerk  & 
Lindsell,  Torts,  (5  ed.)  663. 

*  Only  the  opinion  of  Erle,  C.  J.,  is  given. 


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626  STEWARD  V.  GROBiETT  [CHAP.  V. 

of  process.  It  is  not  like  the  case  of  an  application  to  a  magistrate  upon  a 
matter  on  which  he  is  to  exercise  his  discretion:  there,  the  injury  sustained 
by  the  party  is  the  act  of  the  law,  and  therefore  no  action  lies  imless  the 
person  who  sets  the  magistrate  in  motion  is  actuated  by  malice.  But  here  the 
law  was  directly  put  in  motion  by  the  defendant  against  the  plaintiff,  and, 
it  must  be  assumed,  falsely  and  maliciously  and  without  reasonable  or  prob- 
able cause.  If  a  party  goes  before  a  judge,  under  the  1  &  2  Vict.  c.  110,  with 
an  affidavit  of  debt  for  the  purpose  of  procuring  a  capias  to  arrest  his  debtor, 
upon  a  suggestion  that  he  is  going  abroad,  and  that  is  done  falsely  and  mali- 
ciously, and  without  reasonable  or  probable  cause,  an  action  lies.  So,  if  a 
party  go  to  the  Court  of  Queen's  Bench,  and  maliciously  exhibit  articles  of 
the  peace  against  another,  supported  by  a  false  oath  that  such  other  had  used 
threats  against  him,  his  statement  being  incontrovertible,  it  is  clear  to  my 
mind  that  an  action  would  lie.  Can  it  make  any  difference  that  here  the  pro- 
ceeding took  place  before  a  magistrate  ?  It  seems  to  me  that  the  two  proceed- 
ings are  quite  analogous :  the  same  remedy  is  sought,  only  by  a  different  mode. 
As  in  the  one  case  the  truth  of  the  articles  cannot  be  controverted,  so  in  the 
other  the  statement  made  before  the  magistrate  upon  oath  cannot  be  contra- 
dicted by  the  accused.  There  is  not  the  least  sign  of  authority  to  show  that 
the  magistrate  had  any  discretion,  so  that  the  plaintiff  might  have  had  a  deci- 
sion in  his  favor.  In  Bum's  Justice,  sureties  of  the  peace  are  treated  as  being 
subject  to  precisely  the  same  rule  as  articles  of  the  peace  at  the  sessions  or 
in  the  Court  of  Queen's  Bench,  in  respect  of  their  truth  being  incontrovertible. 
And  there  is  strong  reason  for  assuming  that  to  be  the  true  state  of  the  law; 
the  fact  of  there  being  no  authority  exactly  in  point  as  to  sureties  of  the 
peace,  may  well  be  accounted  for  by  supposing  that  no  one  has  entertained 
doubt  enough  upon  it  to  take  the  opinion  of  any  court.  But  as  far  as  author- 
ity goes,  The  King  v,  Doherty,  13  East,  171,  and  Venafra  v.  Johnson,  10  Bing. 
301,  3  M.  &  Sc.  807,  are  in  favor  of  the  plaintiff.  In  the  latter  case,-  Johnson 
made  precisely  the  same  application  to  the  justices  as  was  made  here,  and 
they  exercised  a  precisely  analogous  juriadiction,  the  only  difference  being  that 
there  the  magistrates  held  the  plaintiff  to  bail  for  his  appearance  at  the  ses- 
sions, whereas  here  the  magistrate  at  once  committed  the  plaintiff  to  jail  until 
he  should  find  the  required  sureties:  and  it  was  there  decided  by  implication 
that  the  proceeding  before  the  magistrate  was  incontrovertible;  for,  the  court 
held  that  the  judge  was  wrong  in  not  leaving  it  to  the  jury  to  say  whettier 
or  not  the  defendant  believed  the  menaces  when  he  put  the  law  in  motion 
against  the  plaintiff!  If  Mr.  Couch's  argument  to-day  is  right,  the  counsel 
and  the  court  in  that  case  were  all  wrong.  Upon  principle,  therefore,  and 
upon  authority,  it  seems  to  me  that  the  argument  for  the  plaintiff  in  this  case 
ought  to  prevail.  Judgment  for  the  plaintiff} 

1  Hyde  t>.  Greuch,  62  Md.  577;  Pixley  v.  Reed,  26  Minn.  80  (semble);  Apgar  v. 
Woolston,  43  N.  J.  Law,  57.  66  (aemble);  Bump  v.  Betts,  19  Wend.  421;  Fortman 
V.  Rottier,  8  Ohio  St.  548  Accord. 

See  Brmkley  v.  Knight,  163  N.  C.  194  (release  by  constable  without  a  hearing). 


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CHAP,  v.]  BROWN  V.  RANDALL  627 

FISHER  r.  BRISTOW 

In  the  King's  Bench,  June  16, 1779. 

Reported  in  1  Dauglaa,  215. 

Action  for  a  malicious  presentment  (for  incest),  in  the  ecclesiasti- 
cal court  of  the  archdeaconery  of  Huntingdon.  Demurrer  to  the 
declaration  and  cause  assigned,  that  it  was  not  stated  how  the  prose- 
cution was  disposed  of,  or  that  it  was  not  still  depending.  The  court 
were  clearly  of  opinion,  that  the  objection  was  fatal,  and  said  it  was 
settled,  that  the  plaintiff  in  such  an  action,  must  show  the  original 
suit,  wherever  instituted,  to  be  at  an  end;  otherwise  he  might  re- 
cover in  the  action,  and  yet  be  afterwards  convicted  on  the  original 
prosecution.  Judgment  for  the  defendants} 

BROWN  V.  RANDALL 

Supreme  Court,  Connecticut,  March  Term,  1869. 

y^Reported  in  36  Connecticut  Reports,  56. 

Carpenter,  J.^  TTie  defendants  complained  to  a  grandjuror  of  the 
town  of  Norwich  against  the  plaintiff,  charging  him*  with  a  breach  of 
the  peace,  and  induced  the  grandjuror  to  enter  a  complaint  to  a  magis- 
trate in  due  form,  whereupon  a  warrant  was  issued,  and  the  plaintiff 
arrested  and  held  to  answer  the  complaint.  After  remaining  in  cus- 
tody several  hours,  the  magistrate  informed  the  defendants  and  their 
counsel,  who  acted  for  the  grandjuror,  that  he  was  ready  to  proceed 
with  the  trial.  The  defendants  sent  word  to  the  court  that  they  should 
prosecute  the  complaint  no  further,  and  thereupon  the  plaintiff  was 
discharged.    It  is  alleged  in  the  declaration  that  this  proceeding  was 

1  Parker  t;.  Landey.  10  Mod.  209;  Whitworth  v.  Hall,  2  B.  A  Ad.  695;  Mellor  v. 
Baddeley,  2  Cr.  &  M.  675;  Watkms  v,  Lee,  5  M.  &  W.  270;  McCann  v.  Preneveau, 
10  Ont.  573;  Poitras  v.  LeBeau,  14  Can.  S.  C.  742;  Stewart  v,  Sonnebom,  98  U.  S. 
187:  Steel  v.  Williams,  18  Ind.  161;  West  v.  Hayes.  104  Ind.  251;  Olson  v.  Neal, 
63  la.  214;  Wood  v.  Laycock,  3  Met.  (Ky.)  192;  Smith  v.  Brown,  119  Md.  236; 
Hamilburgh  ».  Shepard,  119  Mass.  30;  Wilson  v.  Hale,  178  Mass.  Ill;  Pixley  v. 
Reed,  26  Minn.  80;  Lowe  v.  Wartman,  47  N.  J.  Law,  413;  Clark  v.  Cleveland,  6 
Hill,  344;  Searll  v,  McCracken,  16  How.  Pr.  262;  Swartwout  v,  Dickelman.  12 
Hun,  358;  Johnson  v.  Finch,  93  N.  C.  205;  Foreter  v,  Orr.  17  Or.  447;  Scheibler 
V.  Steinburg,  129  Tenn.  614;  Luby  v,  Bennett,  111  Wis.  613  Accord. 

Consequently,  the  Statute  of  limitations  does  not  run  until  the  prosecution  is 
terminated.  Mayor  v.  Hall,  12  Can.  S.  C.  74;  Printup  v.  Smith,  74  Ga.  157; 
Rider  v.  Kite,  61  N.  J.  Law,  8. 

Also  although  discharged  by  a  magistrate,  plaintifiF  can  not  sue  if  the  grand  jiuy 
afterwards  incfict.  Hartshorn  v.  Smith,  104  Ga.  235;  Weglein  v.  Trow  Directory 
Co.,  152  App.  Div.  705.  See  Schippel  v.  Norton,  38  Kan.  667;  Knott  v.  Sargent, 
125  Mass.  95.  Compare  Simmons  v.  SuUivan,  42  App.  D.  C.  523  (amended  or 
substitute  information,  altering  the  charge);  Mistich  v.  Collette,  136  La.  294 
(second  prosecution  instituted  after  termination  of  first  and  still  pending). 

'  Everything  is  omitted,  except  the  opinion  of  the  court  on  the  question  of  the 
termination  of  the  prosecution. 


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628  BROWN  V.  RANDALL  [CHAP.  V. 

malicious  and  without  probable  cause,  and  the  jury  have  found  that 
allegation  to  be  tme. 

The  important  question  in  this  case  is  whether,  upon  the  facts 
alleged  and  proved,  the  plaintiff  is  entitled  to  recover.  All  the  material 
averments  seem  to  have  been  proved  except  the  all^ation  of  acquit- 
tal. That  was  not  proved,  and  the  court  charged  the  jury  that  it  was 
not  necessary.  The  defendants  complain  of  this,  as  they  rely  upon 
the  non-existence  of  that  fact  as  a  complete  defence  to  the  action. 
Decisions  of  courts  of  the  highest  respectability,  both  in  England  and 
in  this  coimtry,  justify  this  claim.  It  does  not  appear  that  this  ques- 
tion has  ever  been  directly  determined  l^  this  coiut.  We  are  referred 
to  the  case  of  Monroe  v.  Maples,  1  Root,  563.  But  no  such  question 
arose  in  that  case.  It  simply  decided  that  a  person  convicted  of  the 
crime  charged  against  him  could  not  maintain  the  action.  We  are 
therefore  at  Uberty  to  determine  the  question  upon  principle. 

The  groimds  of  this  action  are,  the  malice  of  the  defendant,  the 
want  of  probable  cause,  and  an  injury  sustained  by  the  plaintiff. 
1  Swift's  Digest,  491.  The  conviction  of  the  plaintiff  is  justly  con- 
sidered as  conclusive  evidence  of  probable  cause.  The  authorities  re- 
ferred to  virtually  decide  —  without  sufficient  reason  as  it  seems  ta 
us  —  that  the  termination  of  the  prosecution  by  •a  nolle  prosequi,  or 
abandonment,  was  equally  conclusive  upon  that  question. 

One  reason  given  for  this  is,  that  no  termination  of  the  prosecution 
in  favor  of  the  accused  short  of  an  acquittal  will  discharge  the  crime 
or  be  a  bar  to  a  new  indictment.  This  reasoning  is  not  satisfactory. 
The  possibility  that  the  plaintiff  may  be  again  prosecuted  for  the  same 
alleged  offence  is  not  inconsistent  with  an  entire  want  of  probable 
cause  in  the  first  prosecution.  This  reason  seems  to  have  been  dis- 
regarded in  Sayles  v.  Briggs,  4  Met.  421 .  The  complainant  abandoned 
the  prosecution  against  the  plaintiff  after  a  trial,  and  the  magistrate, 
who  could  only  bind  over  or  discharge  the  person  accused,  dischsjged 
him.  The  coiut  held  that  the  action  could  be  maintained.  Yet  such 
a  discharge  could  be  no  bar  to  a  subsequent  prosecution. 

Another  reason  given  is,  that  the  common  law  will  not  favor  actions 
in  behalf  of  a  party  criminally  prosecuted  against  one  who  has  acted 
as  complainant  in  behalf  of  the  public,  and  ostensibly  for  the  pubUc 
good;  it  therefore  requires  that  the  plaintiff  in  such  an  action  shall 
begin  by  offering  the  verdict  of  a  jury  who  have  considered  the  cause 
on  its  merits.  This  may  be  a  very  proper  caution  to  a  jury,  and  a 
matter  which  ought  to  be  considered  by  them  in  weighing  evidence, 
but  we  see  no  sufficient  reason  for  adopting  it  as  an  absolute  rule  of 
law,  the  effect  of  which  is,  in  some  cases  at  least,  to  shut  out  the 
truth.  No  such  rule  has  been  adopted  in  this  State,  and  we  think  it  is 
contrary  to  the  prevailing  notions  of  the  profession.  Judge  Swift,  in 
his  Digest,  vol.  1,  p.  491,  states  five  different  modes  of  terminating  a 
prosecution  in  favor  of  the  accused  which  will  lay  the  foundation  for 


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CHAP,  v.]  BBOWN  V.  RANDALL  629 

this  action,  and  one  of  them  is,  "when  the  prosecution  has  been 
abandoned  and  given  up/' 

In  Parker  v.  Farley,  10  Cush.  279,  Shaw,  C.  J.,  in  speaking  of  the 
rule  under  consideration,  says:  "  Were  this  a  new  and  original  ques- 
tion, to  be  decided  upon  principle,  it  might  be  doubted  whether  it 
would  be  just  and  wise  to  establish  this  as  an  inflexible  rule  of 
practice." 

On  the  whole  we  think  it  wise  and  safe,  when  a  prosecution  has 
been  abandoned,  as  this  was,  without  any  arrangement  with  the  ac- 
cused, and  without  any  request  from  him  that  it  should  be  so  aban- 
doned, to  leave  the  question  of  probable  cause  to  the  jury. 

The  charge  of  the  court  was  in  harmony  with  these  views,  and  we 
do  not  advise  a  new  trial. 

In  this  opinion  the  other  judges  concurred.^ 

1  Cotton  ».  Wilson,  Minor,  203;  Hurgren  v.  Union  Co.,  141  Cal.  585;  Chapman 
V.  Woods,  6  Blackf .  504:  Richter  v.  Koster.  45  Ind.  440:  Coflfey  v,  Myers,  84  Ind. 
106;  Kelley  v.  Sage,  12  Kan.  109;  Bell  v.  Matthews,  37  Kan.  686;  Yocum  ».  Polly, 

I  B.  Mon.  358;  Stanton  v.  Hart,  27  Mich.  539;  Swensotard  v,  Davis,  33  Minn. 
368  (aemble):  Kennedy  v.  Holladay,  25  Mo.  App.  503;  Casebeer  v.  Drahoble,  13 
Neb.  465;  Casebeer  v.  Rice,  18  Neb.  203;  Apgar  v.  Woolston,  43  N.  J.  Law,  57; 
Lowe  V,  Wartman,  47  N.  J.  Law,  413;  Clark  v.  Cleveland,  6  Hill,  344  (aemble); 
Moulton  V.  Beecher,  8  Hun,  100:  Fay  v,  O'Neill,  36  N.  Y.  11  (sembie);  Murray  v. 
Lackey,  2  Murph.  368;  Rice  v.  Fonder,  7  Ired.  390;  Hatch  v.  Cohen,  84  N.  C.  602; 
Marcus  v,  Bernstein,  117  N.  C.  31;  Douglas  v.  Allen,  56  Ohio  St.  156;  Murphy  t;. 
Moore,  (Pa.)  11  Atl.  665;  Driws  v.  Burton.  44  Vt.  124;  Woodworth  v.  MiUs,  61 
Wis.  44;  Manz  t;.  Klippel,  158  Wis.  557;  McCrosson  v.  Cummings,  5  Hawn,  391 
Accord, 

Massachusetts  formerly  held  to  the  contrary.  Parker  v.  Farley,  10  Cush.  279. 
But  see  Graves  v,  Dawson,  130  Mass.  78,  133  Mass.  419;  Langford  v,  Boston  R. 
Co.,  144  Mass.  431;  Briggs  v.  Shepaid  Mf^.  Co.,  217  Mass.  446. 

Indictment  auashedy  see  Simmons  v,  SuUivan,  42  App.  D.  C.  523;  Wilkerson  v. 
McGee,  265  Mo.  574;  Reit  v.  Meyer,  160  App.  Div.  752. 

Case  stricken  from  docket  because  sent  to  wrong  court,  Sandlin  v.  Anders,  187 
Ala.  473. 

TermincUion  of  a  previous  cwU  action,  —  If  a  party  sues  for  a  malicious  arrest 
or  seisure  of  property  in  a  civil  action,  a  voluntary  abandonment  of  the  latter  ac- 
tion by  the  plaintiff  therein  is  equivalent  to  its  termination  in  favor  of  his  adver- 
sary. Anmdell  v.  White,  14  East,  216;  Nicholson  v,  CoghilL  4  B.  &  C.  21 ;  Pierce 
V.  Street,  3  B.  &  Ad.  397;  Watkins  v,  Lee,  5  M.  &  W.  270;  Koss  v.  Norman,  5  Ex. 
359;  Emery  v,  Gmnan,  24  LI.  App.  65;  Cardival  v.  Smith,  109  Mass.  158:  Lud- 
wick  V,  Penny,  158  N.  C.  104;  Mayer  v,  Walter.  64  Pa.  St.  283.  Compare  Hales  v, 
Raines,  162  Mo.  App.  46  (action  reconmiencea  after  volimtary  nonsuit). 

The  rule  is  the  same  as  to  malicious  prosecutions  of  civil  actions  without  arrest 
or  attachment  in  jurisdictions  where  one  is  allowed  to  sue  for  malicious  prosecution 
of  a  civil  action,  without  more.   Wallt;.Toomey,52Conn.35;  Marbourg  v.  Smith, 

II  Kan.  554;  Mitchell  v,  Sullivan,  30  Kan.  231.  See  also  Wilson  v.  Hale,  178 
Mass.  Ill;  Luby  v,  Bennett,  111  Wis.  613. 

But  an  abandonment  of  the  previous  proceeding,  brought  about  as  a  com- 
promise, is  not  a  termination  in  favor  of  the  original  defendant.  Wilkinson  v, 
Howel,  M.  &  M.  495;  Kinsey  v,  Wallace,  36  Cal.  462  (aemble);  Waters  v,  Winn, 
142  Ga.  138:  Emery  v.  Ginnan,  24  111.  App.  65:  Fadner  v,  FQer,  27  Dl.  App.  506; 
Ruehl  Brewmg  Co.  v.  Atlas  Brewing  Co.,  187  111.  App.  392;  Singer  Machine  Co.  v. 
Dyer,  156  Ky.  156;  Marks  v.  Gray,  42  Me.  86;  Sartwell  v.  Parker,  141  Mass.  405; 
Langford  v,  Boston  R.  Co.,  144  Mass.  431;  Rachelman  v.  Skinner,  46  Minn.  196; 
McCormick  v.  Sisson,  7  Cow.  715;  Gallagher  v,  Stoddard,  47  Hun,  101 ;  Atwood  v., 
Behne,  73  Hun,  547  (but  see  Reit  v.  Meyer,  160  App.  Div.  752) ;  Welch  v.  Cheek, 
115  N.  C.  310;  Clark  v,  Everett,  2  Grant,  (Pa.)  416;  Mayer  v,  Walter,  64  Pa.  St. 


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630  FOSHAY  V.  FERGUSON  [CHAP.  V. 

FOSHAY  V.  FERGUSON 

SuFBEME  Court,  New  York,  Mat,  1846. 

Reported  in  2  Denio,  617. 

By  the  Courty  BrOnson,  C.  J.^  There  was  evidence  enough  in  the 
case  to  warrant  the  jury  in  finding,  that  the  defendant  set  the  prosecu- 
tion in  motion  from  a  bad  motive.  But  all  the  books  agree,  that  proof 
of  express  malice  is  not  enough,  without  showing  also  the  want  of 
probable  cause.  Probable  cause  has  been  defined,  a  reasonable  ground 
of  suspicion,  supported  by  circumstances  sufficiently  strong  in  them- 
selves to  warrant  a  cautious  man  in  the  belief,  that  the  person  accused 
is  guilty  of  the  offence  with  which  he  is  charged.   Munns  v.  Nemours, 

3  Wash.  C.  C.  37.  However  innocent  the  plaintiff  may  have  been  of 
the  crime  laid  to  his  charge,  it  is  enough  for  the  defendant  to  show, 
that  he  had  reasonable  grounds  for  believing  him  guilty  at  the  time 
the  charge  was  made.    In  Swain  v,  Stafford,  3  Iredell,  N.  C.  289,  and 

4  id.  392,  the  action  was  brought  against  the  defendant,  who  was  a 
merchant,  for  charging  the  plaintiff  with  stealing  a  piece  of  ribbon 
from  his  store.  At  the  time  the  complaint  was  made,  the  defendant 
had  received  such  information  as  induced  a  belief  of  the  plaintiff's 
guilt;  and  although  it  afterwards  turned  out  that  the  property  had 
not  been  taken  by  any  one,  and  was  never  out  of  the  defendant's  pos- 
session, it  was  held  that  an  action  for  malicious  prosecution  could 
not  be  supported.  The  doctrine  that  probable  cause  depends  on  the 
knowledge  or  information  which  the  prosecutor  had  at  the  time  the 
charge  was  made,  has  been  carried  to  a  great  length.  In  Delegal  v, 
Highley,  3  Bing.  N.  C.  950,  which  was  an  action  for  maliciously,  and 
without  probable  cause,  procuring  a  third  person  to  charge  the  plain- 
tiff with  a  criminal  offence,  the  defendant  pleaded  specially,  showing 
that  the  plaintiff  was  guilty  of  the  offence  which  had  been  laid  to  his 
charge;  and  the  plea  was  held  bad  in  substance,  because  it  did  not 
show  that  the  defendant,  at  the  time  the  charge  was  made,  had  been 
informed,  or  knew  the  facts  on  which  the  charge  rested.  The  question 
of  probable  cause  does  not  turn  on  the  actual  guilt  or  innocence  of  the 
accused;  but  upon  the  belief  of  the  prosecutor  concerning  such  guilt 
or  innocence.    Seibert  v.  Price,  5  Watts  &  Serg.  438. 

Without  going  into  a  particular  examination  of  the  evidence  in  this 
case,  it  is  enough  to  say  that  the  defendant,  at  the  time  he  went  before 
the  grand  jury  had  strong  grounds  for  believing  that  the  plaintiff  had 
stolen  the  cattle:  and,  so  far  as  appears,  not  a  single  fact  had  then 
come  to  his  knowledge  which  was  calculated  to  induce  a  different 

283,  2S7;  Rounds  v.  Humes.  7  R.  I.  535;  Ruasell  v,  Morgan,  24  R.  1. 134.   Unless 
the  settlement  was  obtained  by  duress  of  the  person  or  the  ^oods  oi  the  original 
defendant.    Morton  v.  Young,  55  Me.  24;  White  v.  International  Textbook  Co., 
156  la.  210. 
^  Only  the  opinion  of  the  court  is  given. 


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CHAP,  v.]  FOSHAY  V.  FEBGUSON  631 

opinion.  Although  the  plaintiff  was  in  fact  innocent,  there  would  be 
no  color  for  this^tion,  if  it  were  not  for  the  fact  that  the  defendant 
settled  the  matter  with  the  plaintiff,  instead  of  proceeding  against  him 
for  the  supposed  offence.  If  the  parties  intended  the  settlement  should 
extend  so  far  as  to  coVer  up  and  prevent  a  criminal  prosecution,  the 
defendant  was  guilty  of  compounding  a  felony.  And  the  fact  that  he 
made  no  complaint  until  the  plaintiff  commenced  the  two  suits  against 
him,  goes  far  to  show  that  he  was  obnoxious  to  that  charge;  and  that 
he  was  governed  more  by  his  own  interest,  than  by  a  proper  regard  to 
the  cause  of  pubUc  justice.  But  however  culpable  the  dedfendant  may 
have  be^n  for  n^lecting  his  duty  to  the  public,  that  cannot  be  made 
the  foundation  of  a  private  action  by  the  plaintiff.  Although  the 
^  defendant  may  have  agreed  not  to  prosecute,  and  the  complaint  may 
have  been  afterwards  made  from  a  malicious  feeling  towards  the  plain* 
tiff,  still  the  fact  of  probable  cause  remains;  and  so  long  as  it  exists, 
it  is  a  complete  defence.  There  is  enough  in  the  defendant's  conduct 
to  induce  a  rigid  scrutiny  of  the  defence.  But  if  upon  such  scrutiny 
it  appear,  that  he  had  reasonable  grounds  for  believing  the  plaintiff 
guilty,  and  there  is  nothing  to  show  that  he  did  not  actually  enter- 
tain that  belief,  there  is  no  principle  upon  which  the  action  can  be 
supported. 

On  a  careful  examination  of  the  case,  I  am  of  opinion  that  the  ver- 
dict was  clearly  wrong.  But  as  the  charge  of  the  judge  is  not  given, 
we  must  presume  that  the  case  was  properly  submitted  to  the  jury; 
and  a  new  trial  can  therefore  only  be  had  on  pa3mient  of  costs. 

Ordered  accordingly.^ 

»  Anon..  6  Mod.  73;  Turner  v.  Ambler,  10  Q.  B.  262;  Hafles  v,  Marks,  7  H.  &  N. 
66;  Wheeler  v,  Nesbitt,  24  How.  644,  650;  Stewart  v,  Sonnebom,  98  U.  S.  187; 
Sanders  v.  Palmer,  66  Fed.  217:  Jordan  v,  Alabama  Co.,  81  Ala.  220:  Price  v. 
Morris,  122  Ark.  382;  Mark  v.  Rich,  43  App.  D.  C.  182:  Marable  v,  Maver,  78 
Ga.  710;  Joiner  v.  Ocean  Co.,  86  Ga.  238;  Ames  v.  Snider,  69  111.  376;  Barrett 
V.  Spaids,  70  Dl.  408;  Leyenberger  v,  Paul,  12  111.  App.  636;  Morrell  v.  Martin,  17 
m.  App.  336;  Adams  v,  Lisher,  3  Blackf.  241;  Green  v,  Cochran,  43  la.  644; 
Yocum  V.  Polly,  1 B.  Mon.  368;  Medcalfe  v.  Brooklyn  Co.,  46  Md.  198:  Flickinger 
v.  Wagier,  46  Md.  680;  Stone  v,  Crocker,  24  Pick.  81 ;  Coupal  v.  Ward,  106  Mass. 
289:  Hamilton  v.  Smith,  39  Mich.  222:  Smith  v.  Austin,  49  Mich.  286;  Webster 
V,  Fowler,  89  Mich.  303;  Cox  v.  Launtsen,  126  Minn.  128;  Burris  v.  North,  64 
Mo.  426;  Renfro  v.  Prior,  22  Mo.  App.  403;  Kennedy  v.  BfoUaday.  25  Mo.  App. 
603,  619;  Harris  v,  Quincy  R.  Co.,  172  Mo.  App.  261;  McDonald  v.  Goddard 
Grocery  Co.,  184  Mo.  App.  432:  Woodman  v.  Frescott,  65  N.  H.  224;  Heyne  v, 
Blair,  62  N.  Y.  19;  Miller  v.  Milhgan,  48  Barb.  30:  Uniteky  v.  Gorman,  146  N.  Y. 
Supp.  313:  Dietz  v,  Lan^tt,  63  Pa.  St.  234;  Emerson  v,  Cochran,  111  Pa.  St. 
619;  Bartlett  v.  Brown,  6  R.  1.  37;  Welch  v,  Boston  R.  Corp»  14  R.  1. 609;  Stod- 
dard V.  Roland,  31  S.  C.  342:  KeRon  v.  Bevins.  Cooke,  (Tenn.)  90;  Evans  v, 
Thompson,  12  Heisk.  634'  Johnson  v.  State,  32  Tex.  Cr.  68;  South  Bank  v.  Suf- 
folk Bank,  27  Vt.  605;  Waring  r.  Hudspeth,  76  Wash.  634;  Bailey  v.  GoUehwi, 
76  W.  Va.  322;  Reicher  v.  Neacy,  168  Wis.  667  Accord. 

Definitions  of  probable  cause j  see  Gulsby  v.  LouisviUe  R.  Co.,  167  Ala.  122; 
Hanchey  v,  Brunson,  176  Ala.  236;  Runo  v.  Williams,  162  Cal.  444;  Redgate  v. 
Southern  R.  Co.,  24  Cal.  App.  573;  Mark  v.  Rich,  43  App.  D.  C.  182;  Pianco  v, 
Joseph,  188  m.  App.  565:  Schwarte  v.  Boswell,  166  Kv.  103;  Indianapolis  Trac- 
tion Co.  V.  Henby.  178  Ina.  239;  Banken  t;.  Locke,  136  La.  155;  Chapman  v.  Nash, 
121  Md.  608;  Gilecki  v,  Dolemba,  189  Mich.  107;  Cox  v.  Lauritsen,  126  Minn. 


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632  CLOON  V.  GERRY  [CHAP.  V. 

CLOON  V.  GERRY 

Supreme  Judicial  Court,  Massachusetts,  June,  1859. 

Reported  in  13  Gray,  201. 

Shaw,  C.  J.^  In  an  action  for  a  malicious  prosecution  against  one, 
in  the  name  of  the  Commonwealth,  the  averment  on  the  part  of  the 
plaintiff,  that  the  complaint  was  made  without  reasonable  cause,  lies 
at  the  foundation  of  the  suit;  and  although  it  is  in  form  a  negative 
proposition,  it  is  incumbent  on  the  plaintiff  to  establish  it  by  satisfac- 
tory proof.  This  kind  of  suit,  by  which  the  complainant  in  a  priminal 
prosecution  is  made  liable  to  an  action  for  damages,  at  the  suit  of  the 
person  complained  of,  is  not  to  be  favored;  it  has  a  tendency  to  deter 
men  who  Imow  of  breaches  of  the  law,  from  prosecuting  offenders, 
thereby  endangering  the  order  and  peace  of  the  community.  Absence 
of  probable  cause  is  essential;  from  want  of  probable  cause,  malice 
may  be  inferred;  but  from  malice,  even  if  express,  want  of  probable 
cause  cannot  be  inferred. 

An  ultimate  acquittal  of  the  offence  charged,  though  necessary  to 
be  proved,  is  but  a  short  step  towards  the  maintenance  of  an  action 
for  malicious  prosecution.  Malice,  and  absence  of  any  reasonable  and 
probable  cause,  must  also  concur  with  an  acquittal. 

In  the  present  case,  the  prosecution  complained  of  was  a  complaint 
before  a  justice  of  the  peace  by  whom  the  plaintiff  was  convicted; 
from  this  judgment  he  appealed,  and  on  trial  in  the  Court  of  Common 
Pleas  was  acquitted. 

On  the  trial,  it  appeared  from  the  pleadings  and  evidence,  and  was 
admitted,  that  the  complaint  was  for  an  offence  which  the  magistrate 
had,  by  law,  jurisdiction  to  hear,  decide  and  render  a  judgment  in; 
also,  that  neither  in  the  trial  before  the  magistrate,  nor  in  the  trial  in 
the  Common  Pleas,  was  the  defendant  a  witness.  On  this  case,  the 
court  ruled  that  such  a  conviction  was  proof  of  probable  cause;  or,  to 
state  the  proposition  with  more  precision,  it  negatived  the  plaintiff's 
leading  and  essential  averment  that  the  complaint  was  made  without 
reasonable  and  probable  cause,  and  that,  for  this  reason,  the  action 
could  not  be  maintained,  and  thereupon  ordered  a  nonsuit. 

The  court  are  of  opinion  that  this  direction  was  right.  The  ques- 
tion of  reasonable  and  probable  cause,  when  the  facts  are  not  con- 
tested, is  a  question  of  law.  And  when  the  plaintiff  had  been  convicted 
by  a  tribunal,  constituted  by  law,  with  authority  to  render  a  judg- 
ment, which,  if  not  appealed  from,  would  have  been  conclusive  of  his 
guilt,  and  such  judgment  is  not  impeached  on  the  ground  of  fraud, 

128;  Lammers  v.  Mason,  123  Minn.  204:  Wilkerson  v,  McGhee,  163  Mo.  App. 
356,  153  Mo.  App.  343;  Humphries  v.  Edwards,  164  N.  C.  154;  Cole  v.  Reece. 
47  Pa.  Super.  Ct.  212;  Waring  v,  Hudspeth,  75  Wash.  534;  Bailey  v  GoUehon,  76 
W.  Va.  322. 

1  Only  the  opinion  of  the  court  is  given. 


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CHAP,  v.]  CLOON  V.  GERRY  633 

conspiracy  or  subornation  in  its  procurement,  although  afterwards 
reversed  on  another  trial,  it  constitutes  sufficient  proof  that  the  prose- 
cution was  not  groimdless,  and  to  defeat  an  action  for  malicious  pros- 
ecution. The  case  of  Whitney  v.  Peckham,  15  Mass.  243,  is  directly 
in  point,  and  we  think  it  is  well  sustained  by  authorities. 

It  is  said  that  the  question  of  probable  cause  is  a  mixed  question 
of  law  and  fact,  and  that  the  facts  should  have  been  left  to  the  jury. 
Here  no  fiact  material  to  the  question  was  controverted,  and  then 
there  was  nothing  to  leave  to  a  jury.  Exceptions  overraUd} 

^  ConvicHan  reversed.  —  It  is  generally  agreed  that  a  conviction  of  the  defend- 
ant in  the  criminal  proceeding,  aithoiigh  subsequently  reversed,  negatives  the  ab- 
sence of  probable  cause,  unless  it  is  also  made  to  appear  that  the  conviction  was 
,  procured  by  the  fraud  of  the  instigator  of  the  criminal  proceeding.  Accordingly,  a 
dedaration  alleging  the  conviction  and  its  reversal,  but  not  alleging  any  such  fraud, 
IB  bad  on  demurrer.  Re3molds  v.  Kennedy,  1  Wils.  232;  Crescent  Co.  t;.  Butcher's 
Co.,  120  U.  S.  141;  Knight  v,  Intemat.  R.  Co.,  61  Fed.  87;  Blackman  v.  West  Co., 
126  Fed.  252:  Casey  v.  Dorr,  94  Ark.  433;  Carpenter  c;.  Siblev;  153  Cal.  215: 
Goodrich  v.  Warner,  21  Conn.  432  (semble);  McEbt>y  v.  Cathohc  Press  Co.,  254 
HI.  290;  Dahlberg  v.  Grace,  178  HI.  App.  97;  Adams  v.  Bicknell,  126  Ind.  210; 
Moffatt  V.  Fisher,  47  la.  473;  Bowman  v.  Brown,  52  la.  437;  Olson  v.  N«il,  63 
la.  214;  Barber  v,  Scott^  92  la.  52;  White  v.  International  Text  Book  Co.,  156 
la.  210;  Ross  v.  Hixon,  46  Kan.  550,  555;  Spring  v.  Besore,  12  B.  Mon.  551; 
Kaye  v,  Kean,  18  B.  Mon.  839;  Duerr  v,  Ky.  Co.,  132  Ky.  228;  Witham  v.  Gowen, 
14  Me.  362;  Payson  v.  Caswell,  22  Me.  212;  Sidelinger  v,  Trowbridge,  113  Me. 
537;  Whitney  v,  Peckham,  15  Mass.  243;  Dennehey  v,  Woodsum,  100  Mass.  195, 
197;  Phillips  v,  Kalamazoo,  53  Mich.  33  (see  Spafdinff  v.  Lowe,  56  Mich.  366): 
Boqgher  v.  Hough,  99  Mo.  183;  Nehr  v.  Dobbs,  47  Neb.  863;  Burt  v.  Place,  4 
'Wend.  591;  Palmer  v.  Avery,  41  Barb.  290;  Francisco  v.  Schmeelk.  156  App.  Div. 
335;  Root  v.  Rose,  6  N.  D.  575;  Thienes  v.  Francis,  69  Or.  165;  Herman  v. 
Brookerhoflf,  8  Watts,  240  (sembU);  Welch  v.  Boston  R.  Co..  14  R.  I.  609;  Hull 
V.  Sprague,  23  R.  I.  188;  Memphis  Co.  v.  Williamson,  9  Heisk.  314:  Saunders  v. 
Baldwin,  112  Va.  431;  Topolewski  v.  Plankinton  Packme  Co.,  143  Wis.  52.  Com- 
pare Carpenter  v.  Hood,  172  Mich.  533;  Piatt  t;.  Bonsall,  136  App.  Div.  397. 

As  to  fraudulently  procured  plea  of  guilty,  see  Johnson  v,  Girdwood,  7  Misc. 
651;  Holtman  v.  Bullock.  142  Ky.  335. 

In  a  few  jurisdictions  the  conviction,  althou|i;h  set  aside,  is  treated  as  conclusive 
evidence  of  probable  cause,  proof  of  fraud  in  its  procurement  being  inadmissible. 
Hartshorn  v.  Smith,  104  Ga.  235;  Clements  v.  Odorless  Co^  67  Md.  461,  605 
(Bryan,  J., diss.);  Parker  r. Huntington, 7  Gray,  36;  GriflBs  i;.  Sellars,  4Dev.  &B. 
176. 

In  Virginia,  on  the  contrary,  a  count  alleging  a  conviction  and  its  reversal  is 
sufficient  without  any  allegation  in  r^ard  to  fraud.  Jones  v.  Finch,  84  Va.  204 
{aemble);  Blanks  v.  Robinson,  1  Va.  Dec.  600;  Va.  L.  J.  (1886)  398  (overruling 
Womack  ».  Circle,  32  Grat.  324).    See  Hale  v.  Bovlen,  22  W.  Va.  234. 

Commitment  for  grand  jury,  —  The  holding  of  the  defendant  for  the  grand  jury 
is  prima  fade  evidence  of  probable  cause.  Miller  v.  Chicago  Co.,  41  Fed.  898; 
Ewing  V,  Sanford,  19  Ala.  605;  Price  Mercantile  (>).  v.  Cuilla,  100  Ark.  316; 
Ganea  v.  Southern  Ck).,  51  Cal.  140;  Diemer  v.  Herber,  75  Cal.  287;  Ritchey  v. 
Davis,  11  la.  124;  Ross  v.  Hixon,  46  Kan.  550;  Danser  v.  Nathan,  145  App.  Div. 
448;  Giesener  v.  Healy,  86  Misc.  16;  Ricord  v.  Central  Co.,  15  Nev.  167;  Ash  v. 
Marlow,  20  Ohio,  119;  Raleigh  v.  Cook,  60  Tex.  438;  Hale  v.  Boylen,  22  W.  Va. 
234. 

Finding  of  indictment,  —  The  finding  of  an  indictment  is  prima  facie  evidence  of 
probable  cause.  CJan-ard  v.  WiUet,  4  J.  J.  Marsh.  628:  Sharpe  v.  Johnston,  76  Mo. 
660;  Peck  v.  Chouteau,  91  Mo.  138;  Wilkerson  v.  McGhee,  153  Mo.  App.  343, 
163  Mo.  App.  356. 

FaxLure  of  the  proeecviion,  —  The  failure  of  the  original  prosecution  is  in  some 
jurisdictions  regarded  as  prima  facie  evidence  of  want  of  probable  cause.  Miller  v, 
Chicago  R.  Co.,  41  Fed.  898;  Hanchey  v,  Brunson,  175  Ala.  236;  Tucker  v.  Bart- 


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634  RAVENGA  V.  BiACKINTOSH  [CHAP.  V. 

RAVENGA  V.  MACKINTOSH 

In  the  King's  Bench,  Mat  8, 1824. 

Reported  in  2  BamewaU  &  Cressvpell,  693. 

This  was  an  action  for  a  malicious  arrest :  plea  not  guilty.  At  the 
trial  before  Abbott,  C.  J.,  at  the  London  sittings  after  last  Hilary 
term,  the  jury  was  directed  to  find  a  verdict  for  the  defendant,  if  they 
were  of  opinion  that,  at  the  time  when  the  arrest  was  made.  Mackin- 
tosh acted  truly  and  sincerely  upon  the  faith  of  the  opinion  given  by 
his  professional  adviser,  actually  believing  that  Ravenga  was  person- 
ally liable,  and  that  he  might  be  lawfully  arrested,  and  that  he  (Mack- 
intosh) could  recover  in  that  action;  but  to  find  for  the  plaintiff,  if 
they  were  of  opinion  that  Mackintosh  beUeved  that  he  must  fail  in 
the  action,  and  that  he  intended  to  use  the  opinion  as  a  protection,  in 
case  the  proceedings  were  afterwards  called  in  question;  and  that  he 
made  the  arrest,  not  with  a  view  of  obtaining  his  debt,  but  to  compel 
the  plaintiff  to  sanction  the  debentures.  The  jury  found  a  verdict  for 
the  plaintiff,  with  £250  damages.^ 

The  Attorney-General  now  moved  for  a  new  trial. 

Batlet,  J.  I  have  no  doubt  that  in  this  case  there  was  a  want  of 
probable  cause.  I  accede  to  the  proposition,  that  if  a  party  la3rs  all 
the  facts  of  his  case  fairly  before  coimsel,  and  acts  bona  fide  upon  the 
opinion  given  by  that  counsel  (however  erroneous  that  opinion  may 
be),  he  is  not  liable  to  an  action  of  this  description.*    A  party,  how- 

lett,  97  Kan.  163:  Straus  v.  Young,  36  Md.  246;  Whitfield  v.  Westbrook,  40  Miss. 
311:  Bostick  v.  Rutherford,  4  I&wks,  83:  Downing  r.  Stone.  152  N.  C.  525; 
Barnigh  v,  Tammany,  158  Pa.  St.  545;  McKenzie  v.  Canning.  42  Utah^29  (but 
compare  Smith  v.  Clark,  37  Utah,  116);  Jones  v.  Finch,  84  Va.  204;  Waring  v. 
Hudspeth,  75  Wash.  534;  Saunders  t;.  First  Nat.  Bank,  85  Wash.  125;  Brady 
V.  Stiftner,  40  W.  Va.  289:  Fetty  v.  Huntington  Loan  Co.,  70  W.  Va.  688;  Winn  v. 
Peckham,  42  Wis.  493;  Lawrence  v,  Cleary,  88  Wis.  473;  Manz  v,  Klippel,  158 
Wis.  557.  In  others  there  is  no  such  presumption.  Incledon  t;.  Berry,  1  Camp. 
203  n;  Stewart  v.  Sonnebom,  98  U.  S.  187,  195;  Thompson  v.  Beacon  Co.,  56 
Conn.  493;  Plimmier  v.  Collins,  1  Boyce,  281;  Skidmore  v.  Bricker.  77  Dl.  164; 
Bitting  V,  Ten  Eyck,  82  Ind.  421;  Prme  v.  Singer  Machine  Co.,  176  Mich.  300; 
Williams  v.  Vanmeter,  8  Mo.  339;  Boe^r  v.  Langenberg,  97  Mo.  390;  Eckerle  v, 
Higgins,  159  Mo.  App.  177  (distinguishme  nol.  pros,  and  dischar^  on  preliminary 
examination  —  see  also  Smith  v.  Gljom,  (Mo.)  144  S.  W.  149);  Hams  v.  Quincy 
R.  Co.,  172  Mo.  App.  261;  Scott  v.  Simpson,  1  Sandf.  601;  Central  Light  Co.  v. 
Tyron,  42  Okl.  86;  Eastman  v,  Monastes,  32  Or.  291;  Bekkeland  v.  Lyons,  96 
Tex.  255;  Mxilntosh  v,  Wales,  21  Wyo.  397.  See  also  Grorud  v.  Lossl,  48  Mont. 
274. 

Order  vacating  attachment  as  prima  facie  evidence  of  want  of  probable  cause  in 
action  for  malicious  attachment,  see  Petruschke  v.  Kamcrer,  131  Minn.  320. 

1  The  statement  of  the  evidence,  the  argument  for  the  d^endant,  and  the  con- 
curring opinion  of  Holroyd,  J.,  are  omitted. 

»  Snow  V.  Allen,  1  Stark.  502:  Abrath  v.  North  Eastern  Co.,  11  Q.  B.  Div.  440. 
11  App.  Cas.  247;  Scougall  v.  Stapleton,  12  Ont.  206;  Stewart  v,  Sonnebom,  98 
U.  S.  187;  Blunt  v.  Little,  3  Mason,  102:  Cuthbert  v.  GaUoway,  35  Fed.  466 
iaemble);  Miller  v,  Chica^  Co.,  41  Fed.  898;  Coggswell  v.  Bohn,  43  Fed.  411; 
Staunton  v,  Goshom,  94  Fed.  52;  McLeod  v.  McLeod,  73  Ala.  42;  Jordan  v, 
Alabama  Co.,  81  Ala.  220;  Lemay  v.  Williams.  32  Ark.  166;  Bliss  v,  Wyman,  7 
Cal.  257;  Jonee  v.  Jones,  71  Cal.  89;  Brooks  v.  Bradford,  4  Col.  App.  410;  Mark  v. 


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CHAP,  v.]  RAVENGA  V,   MACKINTOSH  635 

ever,  may  take  the  opinions  of  six  different  persons,  of  which  three 
are  one  way  and  three  another.  It  is  therefore  a  question  for  the 
jury,  whether  he  acted  bona  fide  on  the  opinion,  believing  that  he  had 
a  cause  of  action.  The  jury  in  this  case  have  found,  and  there  was 
abundant  evidence  to  justify  them  in  drawing  the  conclusion,  that  the 
defendant  did  not  act  bona  fide,  and  that  he  did  not  believe  that  he 
had  any  cause  of  action  whatever.  Assuming  that  the  defendant's 
belief  that  he  had  a  cause  of  action  would  amount  to  a  probable  cause, 
still,  after  the  jury  have  found  that  he  did  not  believe  that  he  had 
any  cause  of  action  whatever,  the  judge  would  have  been  bound  to 
say,  that  he  had  not  reasonable  or  probable  cause  of  action. 

Ride  refused} 

Rich,  43  App.  D.  C.  182;  Joiner  v.  Ocean  Co.,  86  Ga.  238:  Baker  i;.  Langley,  3  Ga. 
Add.  751;  Koes  v.  Innis,  26  111.  259;  Ames  v.  Snider,  69  111.  376;  Barrett  v.  Spaids, 
70  111.  408;  Brown  v.  Smith,  83  lU.  291;  Roy  v.  Goings,  112  LI.  656-  Aldndge  v. 
Churchill,  28  Ind.  62;  Paddock  v.  Watte,  116  Ind.  1&;  Adams  v.  Bicknell,  126 
Ind.  210;  Mesher  v.  Iddimn,  72  la.  553;  Schippel  v,  Norton,  38  Kan.  567:  Dyer  v. 
Singer  Machiiile  Co.,  164  Ky.  538;  Carrigan  v,  Graham,  166  Ky.  333;  Stevens  v, 
Fassett,  27  Me.  266;  Soule  v.  Winslow,  66  Me.  447;  Cooper  v,  Utterbach,  37  Md. 
282;  Hyde  v.  Greudi,  62  Md.  577;  Torsch  w.  Dell,  88  Md.  459;  Stone  v.  Swift,  4 
Pick.  389:  Monaghan  v.  Cox,  155  Mass.  487:  Stanton  v.  Hart,  27  Mich.  539; 
Perry  v.  Sulier,  92  Mich.  72:  Moore  v.  Northern  Co.,  37  Minn.  147;  B<yyd  v, 
Mendenhall,  53  Minn.  274  ^Alexander  v.  Harrison.  38  Mo.  258;  Burris  v.  North, 
64  Mo.  426;  Whitfield  v.  Westbrook,  40  Miss.  311;  Gronid  v,  Lossl,  48  Mont. 
274:  Jonasen  v.  Kennedy,  39  Neb.  313;  Magowan  v,  Rickey,  64  N.  J.  Law,  402; 
Hall  V.  Suydam,  6  Barb.  83;  Richardson  v.  Virtue,  2  Hun,  208;  Turner  v.  Dinnegar, 
20  Hun,  465:  Beal  v,  Robeson,  8  Ired.  276;  Ash  v,  Marlow,  20  Ohio,  119;  El  Reno 
Gas  Co.  V,  Spurgeon,  30  Okl.  88;  Sims  v.  Jay,  53  Okl.  183;  Walter  v.  Sample, 
25  Pa.  St.  275:  Smith  v,  Walter,  125  Pa.  St.  453;  Bartlett  v.  Brown,  6  R.  I.  37; 
Jackson  v.  BeU,  5  S.  D.  257;  Kendrick  t^.  Cypert,  10  Humph.  291;  St.  Johns- 
bury  Co.  t^.  Hunt,  59  Vt.  294jJ'orbe8  v.  Hagman,  75  Va,  168;  Saunders  v.  Baldwin, 
112  Va.  431;  Hightower  v.  Union  Trust  Co.,  88  Wash.  179;  Sutton  v,  McCon- 
neU.  46  Wis.  269;  Man«  v,  Klippel,  158  Wis.  557  Accord. 

But  see  Brewer  v.  Jacobs,  22  Fed.  217;  Stewart  v,  MuUiran,  11  Ga.  App.  660; 
Smith  V,  Glynn,  (Mo.)  144  S.  W.  149;  Downing  ».  Stone,  152  N.  C.  525:  Ramsey  r. 
Arrott,  64  Tex.  320;  Glasgow  v.  Owen,  69  Tex.  167;  Shannon  v.  Jones,  76  Tex.  141 ; 
Tiedeman's  Note,  21  Am.  L.  Reg.  n.  s.  582. 

The  advice  must  be  that  of  a  lawyer,  and  not  a  layman.  Murphy  v,  Larson,  77 
ni.  172;  McCullouffh  v.  Rice,  59  Ind.  580;  Ohnstead  t^.  Partridge,  16  Gray,  381; 
Beal  V,  Robeson,  8  bed.  276.  Even  though  the  layman  be  a  Justice  of  the  peace. 
Stephens  v.  Gravit,  136  Ky.  479;  Coleman  v.  Heurich,  2  Mack.  189;  Straus  v. 
Young,  36  Md.  246;  Monaghan  t^.  Cox,  155  Mass.  487  (aemble);  Gee  v.  Culver,  12 
Or.  228;  Brobst  v.  Ruff,  100  Pa.  St.  91;  Sutton  v.  McConnel^  46  Wis.  269.  But 
see  Ball  v,  Rawles,  93  Cal.  222;  Sisk  v.  Hurst,  1  W.  Va.  53.  Compare  Marks  v. 
Hastings,  101  Ala.  165. 

The  lawyer  must  have  no  personal  interest  in  the  controversy.  Smith  v.  King, 
62  Conn.  515;  White  v,  Carr,  71  Me.  555. 

In  Hazzard  v,  Flury,  120  N.  Y.  223,  the  Court  of  Appeals  held  that  mistaken  ad- 
vice of  counsel  upon  a  point  of  law  would  not  justify  the  client,  since  every  one  is 
presmned  to  know  the  law.  Surely  that  much-abused  fiction  has  seldom  been  so 
glaringly  perverted  in  behalf  of  injustice.  See  Singer  Machine  Co.  v.  Dyer,  156  Ky. 
156. 

1  Vann  v.  McCreary.  77  Cal.  434;  Boyd  v.  Mendenhall,  53  Minn.  274;  Acton  v. 
Coffman,  74  la.  17;  Johnson  v.  Miller,  82  la.  693;  Sharpe  v.  Johnston,  76  Mo.  660; 
Ames  V.  Rathbun,  37  How.  Pr.  289;  Laird  v,  Taylor,  66  Barb.  139;  Davenport  v. 
Lynch,  6  Jones,  (N.  C.)  545;  Powell  v,  Woodbury,  85  Vt.  504  Accord. 

Withholding  facts  from  or  unfair  statement  to  counsel.  Fowlkes  v.  Lewis,  10  Ala. 
App.  543;  Rothschach  r.  Diven,  97  Kan.  38;  Indianapolis  Traction  Co.  w.Henby. 


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636  MITCHELL  V.  JENKINS  [CHAP.  V. 


MITCHELL  V.  JENKINS 

In  the  King's  Bench,  November  11, 1833. 

Reported  in  5  BamewaU  iSt  Adolphua,  588. 

This  was  an  action  on  the  case  for  a  malicious  arrest. 

At  the  trial,  before  Taunton,  J.,  at  the  last  Summer  Assizes  for  the 
county  of  Devon,  it  appeared,  that  the  plaintiff  was  indebted  to  the 
defendant  in  the  sum  of  £45,  for  one  year's  composition  of  tithe;  and 
that  the  sum  of  £16  5s.  was  due  to  the  plaintiff  from  the  defendant; 
that  the  defendant,  imder  the  advice  of  his  attorney,  arrested  the 
plaintiff  for  the  whole  sum  of  £45,  instead  of  for  the  balance,  after 
deducting  the  sum  of  £16  bs.  The  defendant,  on  finding  out  that  he 
was  mistaken  in  point  of  law,  and  that  he  should  only  have  arrested 
for  the  balance,  discontinued  the  action. 

There  was  no  evidence  at  all  of  malice  in  fact;  but  the  learned  judge 
told  the  jury,  that,  as  the  plaintiff  ought  not,  by  law,  to  have  been 
arrested  for  more  than  the  balance,  the  law  implied  malice;  and  that 
the  only  question  for  their  consideration  was,  the  amoimt  of  damages; 
upon  which  a  verdict  was  found  for  the  plaintiff  for  £20. 

A  rule  had  been  obtained,  in  a  former  term,  calling  on  the  plaintiff 
to  show  cause  why  that  verdict^  should  not  be  set  aside,  and  a  new  trial 
had;  ^  against  which  — 

Follett  now  showed  cause. 

Coleridge^  Serjt.,  and  Sere,  contra. 

Denman,  C.  J.  Every  arrest  by  a  creditor  for  more  than  is  due,  is, 
in  some  sense,  a  wrongful  act.  By  statute,  if  it  be  made  without  rea-. 
sonable  or  probable  cause,  though  with  an  entire  absence  of  malice, 
the  party  arresting  may  be  deprived  of  his  costs,  and  at  common  law, 
if  the  party  arrested  has  suffered  damage  to  a  greater  extent  than  those 
costs,  he  may,  if  the  arrest  was  also  made  maliciously,  bring  his  action 
on  the  case.  In  that  action,  however,  it  is  still  incumbent  on  the 
plaintiff  to  allege  and  to  prove  malice  as  an  independent  fact;  though 
it  may  in  some  instances  be  fairly  inferred  by  the  jury  from  the  arrest 
itself,  and  the  circumstances  under  which  it  is  made,  without  any  other 
proof.  They,  however,  are  to  decide,  as  a  matter  of  fact,  whether  there 
be  malice  or  not.  I  have  always  understood  the  question  of  reasonable 
or  probable  cause  on  the  facts  found  to  be  a  question  for  the  opinion 

178  Ind.  239;  Lammers  v.  Mason,  123  Minn.  204;  Bowers  v.  Walker,  192  Mo.  App. 
230;  Lathrop  v.  Mathers,  143  App.  Div.  376;  Baer  v.  Chambers,  67  Wash.  357; 
Rogers  v.  Van  Eps,  143  Wis.  396;  Boyer  v.  Bugher,  19  Wyo.  463. 

Must  state  facts  which  might  have  been  ascertained  unth  reasonable  diligence. 
Weddington  v.  White,  148  Ky.  671;  Virtue  v.  Creamery  Mfg.  Co.,  123  Minn.  17; 
Duflfy  V.  Scheerger,  91  Neb.  511.  Contra  —  enough  to  make  full  and  fair  disclosure 
of  known  facts,  Roby  v.  Smith,  40  Okl.  280. 

1  The  statement  of  facts  is  taken  from  3  L.  J.  K.  B.  n.  s.  35.  The  arguments  of 
counsel  and  the  concurring  opinions  of  Patteson  and  Taunton,  JJ.,  are  omitted. 


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CHAP,  v.]  MITCHELL  V.  JENKINB  637 

of  the  court,  and  malice  to  be  altogether  a  question  for  the  jury.*  Here, 
the  question  of  malice  having  been  wholly  withdrawn  from  the  con- 
sideration of  the  jury,  there  ought  to  be  a  new  trial. 

Pabke,  J.  I  am  also  of  opinion  that  there  ought  to  be  a  new  trial, 
on  the  ground  that  the  learned  judge  withdrew  altogether  from  the 
consideration  of  the  jury  the  question  of  malice.  I  have  always  under- 
stood, since  the  case  of  Johnstone  v.  Sutton,  1  T.  R.  510,  which  was 
decided  long  before  I  was  in  the  profession,  that  no  point  of  law  was 
more  clearly  settled  than  that  in  every  action  for  a  maUcious  prosecu- 
tion or  arrest,  the  plaintiff  must  prove  what  is  averred  in  the  declara- 
tion, viz.  that  the  prosecution  or  arrest  was  malicious  and  without 
reasonable  or  probable  cause:  if  there  be  reasonable  or  probable  cause, 
no  malice,  however  distinctly  proved,  will  make  the  defendant  liable; 
but  when  there  is  no  reasonable  or  probable  cause,  it  is  for  the  jury  to 
infer  malice  from  the  facts  proved.  That  is  a  question  in  all  cases  for 
their  consideration,  and  it  having  in  this  instance  been  withdrawn 
from  them,  it  is  impossible  to  say  whether  they  might  or  might  not 
have  come  to  the  conclusion  that  the  arrest  was  malicious.  It  was 
for  them  to  decide  it,  and  not  for  the  judge.  I  can  conceive  a  case 
where  there  are  mutual  accounts  between  parties,  and  where  an  arrest 
for  the  whole  sum  claimed  by  the  plaintiff  would  not  be  malicious;  for 
example,  the  plaintiff  might  know  that  the  set-off  was  open  to  dispute, 
and  tiiat  there  was  reasonable  ground  for  disputing  it.  In  that  case, 
though  it  might  afterwards  appear  that  the  set-off  did  exist,  the  arrest 
would  not  be  malicious.  The  term  "malice"  in  this  form  of  action 
is  not  to  be  considered  in  the  sense  of  epite  or  hatred  against  an  indi- 
vidual, but  of  malv^  anirnvs,  and  as  denoting  that  the  party  is  actu- 

1  Willans  v.  Taylor,  6  Bing.  183;  Busst  v.  Gibbons,  30  L.  J.  Ex.  n.  b.  75;  Brown 
V.  Hawkes,  [1891]  2  Q.  B.  718;  Stewart  v.  Sonnebom,  98  U.  S.  187;  Brown  v,  Self- 
ridce,  224  U.  S.  189;  Sanders  v.  Palmer,  55  Fed.  217;  Staunton  v.  Goshom,  94 
Fed.  52:  Gulsby  v.  Louisville  R.  Co.,  167  Ala.  122;  Louisville  R.  Co.  v.  Stephen- 
son, 6  Ala.  App.  578:  Ball  w.  Rawles,  93  Cal.  222;  Johnson  v.  Southern  R.  Co^  157 
Cal.333;  Smith  ».  King,  62  Conn.  515;  Carroll  v.  Perry,  43  App.  D.C.  363;  Boyd 
V.  Mendenhall,  53  Minn.  274;  Helwig  v.  Beckner,  149  Ind.  131 ;  Indianapolis  Trac- 
tion Co.  V.  Henby,  178  Ind.  239;  Lawrence  v.  Leathers,  31  Ind.  App.  414;  Hender- 
son V.  McGruder,  49  Ind.  App.  682;  Atchison  Co.  w.  Allen,  70  Kan.  743:  Michael  v, 
Matson,  81  Kan.  360;  Metrop.  Co.  v.  Miller,  1 14  Ky.  754;  Moser  v.  Fable,  164  Ky. 
517;  Med'calfe  r.  Brooklyn  Co.,  45  Md.  198;  Thelint;.  Dorsey,59Md.539;  Camp- 
bell V,  Baltimore  R.  Co.,  97  Md.  341;  Bishop  v.  Frantz,  125  Md.  183;  Good  v. 
French,  115  Mass.  201;  Bartlett  v.  Hawley,  38  Minn.  308;  Shafer  v.  Hertzig,  92 
Minn.  171;  Williams  v.  Pullman  Co.,  129  Mum.  97;  Harris  v.  Quincy  R.  Co.,  172 
Mo.  App.  261;  McNulty  v.  Walker,  64  Miss.  198;  Cohn  v.  Saidel,  71  N.  H.  558; 
Magowan  v.  Rickey.  64  N.  J.  Law,  402;  Hartdom  v.  Webb  Mfg.  Co.,  (N.  J.)  75 
Atl.  893;  Heyne  v.  Blair,  62  N.  Y.  19;  Fagnan  v.  Knox,  66  N.  Y.  525;  Anderson  t^. 
How,  116  N.  Y.  336:  L.  I.  Union  v.  Seitz,  180  N.  Y.  243;  Viele  v.  Gray.  10  Abb. 
Pr.  1;  McCarthy  v.  Barrett,  144  App.  Div.  727;  Galley  v.  Brennan,  156  App.  Div. 
443;  Stanford  v.  Grocery  Co.,  143  N.  C.  419;  Humphries  v.  Edwards,  164  N.  C. 
154;  Dunnington  v.  Loeser,  (Okl.)  149  Pac.  1161;  Leahey  v.  March,  155  Pa.  St. 
458;  Roessing  v,  Pittsburgh.R.  Co.,  226  Pa.  St.  523;  McCoy  v.  Kalbach,  242  Pa. 
St.  123;  Cooper  v.  Flenunmg,  114  Tenn.  40;  Landa  v.  Obert,  45  Tex.  539;  Finigan 
V.  Sullivan,  65  Wash.  625;  Bailey  v.  Gollehon,  76  W.  Va.  322  Aaxyrd.  But  see 
Wilson  V,  Thurlow,  156  la.  656;  Grifl5n  v.  Dearborn,  210  Mass.  308. 


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638  MITCHELL  V.  JENKINS  [CHAP,  V. 

ated  by  improper  and  indirect  motives.^  That  would  not  be  the  case 
where,  there  being  an  unsettled  account,  with  items  on  both  sides,  one 
of  the  parties,  believing  bona  fide  that  a  certain  sum  was  due  to  him, 
arrested  his  debtor  for  that  sum,  though  it  afterwards  appeared  that 
a  less  sum  was  due;  nor  where  a  party  made  such  an  arrest,  acting 
bona  fide  under  a  wrong  notion  of  the  law  and  pursuant  to  legal 
advice.  The  question  of  malice  having  in  this  case  been  wholly  with- 
drawn from  the  jury,  I  think  the  rule  for  a  new  trial  must  be  made 
absolute.  Ruie  absolutes 

»  Abrath  v.  North  Eastern  Co.,  11  Q.  B.  Div.  440,  448,  466;  Wiggin  v.  Coffin,  3 
Story,  1;  Johnson  v.  Ebberts.  11  Fed.  129,  6  Sawy.  638,  s.  c;  Brewer  v,  Jacobs,  22 
Fed.  217;  Gulsby  v.  Louisville  R.  Co.,  167  Ala.  122;  Hammond  v.  Rowley,  86 
Conn.  6;  Coleman  v.  Allen,  79  Ga.  637;  South  Western  Co.  v.  Mitchell,  80  Ga. 
438;  Stewart  v.  Mulligan,  11  Ga.  App.  660;  McEbroy  v.  Catholic  Press  Co..  264 
111.  290;  White  v.  International  Text  Book  Co.,  156  la.  210:  Foltz  v.  Buck,  89 
Kan.  381;  Metrop.  Co.  v.  Miller,  114  Ky.  764:  Pullen  ».  Glidden,  66  Me.  202; 
Wills  V.  Noyes,  12  Pick.  324;  Mitchell  v.  Wall,  111  Mass.  492;  Ross  ».  Lang- 
worthy,  13  Neb.  492;  Callahan  v,  Kelso,  170  Mo.  App.  338;  Gee  v.  Culver,  13  Or. 
698;  Squires  v.  Job,  60  Pa.  Super.  Ct.  289;  Culberston  v,  Cabeen,  29  Tex.  247, 
266;  Sebastian  v.  Cheney,  (Texas)  24  S.  W.  970;  Barron  v.  Mason,  31  Vt.  189, 
198;  Forbes  v,  Hagman,  76  Va.  168;  Spear  v,  Hiles,  67  Wis.  360;  Boyer  v.  Bugher, 
19  Wyo.  463  Accord, 

In  Abrath  v.  North  Eastern  Co..  supra,  malice  was  defined  by  Brett,  M.  R.,  p. 
448,  as  ''  a  malicious  intention  in  tne  mind  of  the  defendant,  that  is,  not  with  the 
mere  intention  of  can^pig  thejaw  into  effect,"  and  by  Bowen,  L.  J.,  as  "  a  mali- 
cious spirit,  that  is,  an  incurect  and  improper  motive,  and  not  in  furtherance  of  jus- 
tice." See  also  especially  Pullen  v.  Ghdden,  and  Johnson  v.  Ebberts,  cited  supra  in 
this  note;  Magowan  v.  Rickey,  64  N.  J.  Law,  402:  Peterson  v,  Reisdorph,  49  Neb. 
629:  Nobb  v.  White,  103  la.  362;  Brooks  v,  Bradford,  4  Col.  App.  410;  Jackson  v. 
Bell,  6  S.  D.  267. 

Definitions  of  "  moHce  "  in  this  connection,  see  Fowlkes  v,  Lewis,  10  Ala.  App. 
643;  Redmte  v.  Southern  R.  Co..  24  Cal.  App.  673;  Cincinnati  R.  Co.  v,  Cecil,  164 
Ky.  377;  Lammers  v.  Mason,  123  Minn.  204;  Downing  v.  Stone,  162  N.  C.  626; 
Wright  V,  Harris,  160  N.  C.  642. 

•Farmer  v.  Darling,  4  Burr.  1971;  Busst  v.  Gibbons,  30  L.  J.  Ex.  n.  s.  76; 
Coulter  V.  Dublin  Co.,  60  L.  T.  180;  Hicks  v,  Faulkner,  46  L.  T.  Rep.  127  (affirm- 
ing s.  c.  8  Q.  B.  D.  167);  Wheeler  v.  Nesbitt,  24  How.  644;  Stewart  v,  Sonnebom, 
98  U.  S.  191;  Wiggin  v.  Coffim.  3  Stoiy,  1;  Bumap  v.  Albert,  Taney,  244;  Benson 
V.  McCoy,  36  Ala.  710;  Lunstord  v.  Dietrich.  93  Ala.  666;  Boseman  v,  Shaw,  37 
Ark.  160;  Levy  v,  Brannan,  39  Cal.  486jHarkrader  v,  Moore,  44  Cal.  144;  Porter 
V,  White,  6  Mackey,  180 :  Harpham  v.  Whitney,  77  111.  32;  Krug  v.  Ward,  77  Dl. 
603;  Boyd  v.  Mendenhall,  63  Minn.  274;  Frankfurter  v.  Bryan,  12  Dl.  App.  649; 
Gardiner  v.  Mays,  24  Dl.  App.  286;  Newell  v.  Downs,  8  Blackf .  623;  Oliver  v.  Pate, 
43  Ind.  132;  Ritchev  v.  Davis,  11  la.  124:  Atchison  Co.  v.  Watson,  37  Kan.  773; 
Gourgues  v,  Howard,  27  La.  Ann.  339:  Humphries  v,  Parker,  62  Me.  602;  Med- 
calfe  V,  Brooklyn  Co..  46  Md.  198;  Mitchell  v.  Wall,  111  Mass.  492:  Bartlett  v. 
Hawley,  38  Mmn.  308;  Greenwade  v.  Mills,  31  Miss.  464;  Sharpe  v,  Johnston,  69 
Mo.  667;  Finley  v.  St.  Louis  Co.,  99  Mo.  669;  March  v.  Vandiver.  181  Mo.  App. 
281:  >IcKown  v.  Hunter,  30  N.  Y.  626;  Famam  v,  Feeley,  66  N.  Y.  461;  Heyne 
V.  BlaSr,  62  N.  Y.  19;  Thompson  v,  Lumley^  60  How.  Pr.  106:  Voorhes  v,  Leonard, 
1  Th.  &  C.  148:  Johnson  v.  Chambers,  10  Ired.  287;  Gee  v.  Culver,  12  Or.  22Sy  13 
Or.  598:  Schofield  v.  Ferrers,  47  Pa.  St.  194;  Dietz  v.  Langfitt,  63  Pa.  St.  234: 
Gilliford  v.  Windel,  108  Pa.  St.  142;  Bell  v.  Graham,  1  N.  A  WC.  278;  CampbeU  v, 
O'Bryan,  9  Rich.  204;  Willis  v.  Knox,  6  S.  C.  474;  Caldwell  v.  Bennett.  22  8.  C.  1 ; 
Evans  v.  Thompson,  12  Heisk.  634;  Stansell  v.  Cleveland,  64  Tex.  660;  Shannon 
V.  Jones,  76  Tex.  141:  Barron  v.  Mason,  31  Vt.  189;  Carleton  v,  Taylor,  60  Vt.  220; 
Scott  V.  Shelor,  28  Grat.  891;  Forbes  v.  Hagman,  76  Va.  168  Accord. 

But  see,  contra,  Wilson  v.  Bowen,  64  Mich.  133. 


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CHAP,  v.]  HADDRICK  V.  HE8LOP  639 

HADDRICK  V.  HESLOP 

In  the  Queen's  Bench,  Trinitt  Term,  1848. 

Reported  in  12  Queen^s  Bench  Reports,  267. 

Case  for  maliciously  and  without  reasonable  and  probable  cause 
indicting  the  plaintiff  for  perjury.  Averment  that  the  plaintiff  was 
tried  and  acquitted,  and  judgment  given  that  he  should  depart  with- 
out day,  as  by  record  appeared,  &c. 
Plea,  by  Heslop:  Not  guilty.  Issue  thereon. 
On  the  trial,  before  Wightman,  J.,  at  the  Durham  Summer  Assizes, 
1847,  it  was  shown,  on  the  part  of  the  plaintiff,  that  the  now  defendant 
Heslop  received  the  account  of  Haddrick's  evidence  from  another 
party,  and  then  stated  that  he  would  indict  Haddrick  for  perjury; 
and  that  his  informant  thereupon  expressed  an  opinion  that  there  was 
no  ground  for  such  indictment;  on  which  Heslop  said  that,  even  if 
there  were  not  sufficient  grounds  for  the  indictment,  it  would  tie  up 
the  mouths  of  Hinde  and  Haddrick  for  a  tune,  and  that  he  would 
move  for  a  new  trial.  No  witnesses  were  called  for  the  defence.  The 
learned  judge  asked  the  jury  whether  Heslop  believed  that  there  was 
reasonable  ground  for  indicting,  and  whether  he  had  indicted  from 
malice.  The  jury  answered  that  Heslop  did  not  so  believe;  and,  as 
to  the  maUce,  they  said  that  they  thought  that  the  word  "  malice  " 
was  strong,  but  that  they  thought  the  defendant  had  indicted  from  an 
improper  motive.  The  learned  judge  then  decided  that  the  indictment 
was  without  reasonable  or  probable  cause,  and  told  the  jury  that  they 
might  infer  maUce  from  the  improper  motive.  Verdict  for  the  plaintiff. 
In  Michaelmas  term  (November  6th),  1847, 
Bliss  moved  for  a  new  trial,  on  the  grounds  of  misdirection.^ 
First:  the  question  of  the  defendant's  belief  ought  not  to  have  been 
left  to  the  jury.  It  is  for  the  judge  to  decide  whether  there  was  reason- 
able and  probable  cause.  It  is  true  that  he  may,  in  order  to  decide 
this,  obtain  the  opinion  of  the  jury  upon  facts  which,  when  found,  he 
himself  is  to  act  upon  in  deciding  as  to  the  reasonableness  and  proba- 
biUty.  But  belief  is  not  such  a  fact:  it  is  material  as  to  the  malice, 
but  there  may  well  exist  reasonable  and  probable  cause  constituted 
by  facts  from  which  the  defendant  has  wrongly  drawn  an  inference 
of  want  of  cause.  It  is  otherwise  where  the  belief  becomes  material 
as  an  ingredient  in  the  question  of  mala  fides:  that  was  the  case  in 
Ravenga  v.  Mackintosh,  where  the  defendant  rested  his  defence  upon 
the  ground  that  he  had  acted  bona  fide  on  a  legal  opinion,  and  the  jury 
found  that  he  had  not  so  acted.  Nothing  should  be  left  to  the  jury 
but  "  the  truth  of  the  facts  proved,  and  the  justice  of  the  inferences 
to  be  drawn  from  such  facts;  "  and  it  is  only  as  affecting  those  ques- 
tions that  the  belief  of  the  party  is  material. 

^  The  statement  of  facts  and  the  argument  for  the  defendant  are  abridged;  the 
concurring  opinions  of  Coleridge,  Wightman,  and  Erie,  JJ.,  are  omitted. 


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640  HADDRICK  V.  HESLOP  [CHAP.  V. 

Next:  the  jury  were  misdirected  as  to  malice.  The  mere  fact  that 
the  defendant  had  an  indirect  motive,  however  improper,  in  institut- 
ing the  prosecution  does  not  show  malice.  The  malice  required  in  this 
action  is  express  malice  in  fact,  not  mere  malice  in  law.  In  the  judg- 
ment of  Lords  Mansfield  and  Loughborough,  in  Johnstone  v.  Sutton,* 
it  is  said:  *  "  From  the  want  of  probable  cause,  malice  may  be,  and 
Aost  commonly  is,  implied.  The  knowledge  of  the  defendant  is  also 
implied."  The  jury  ought  therefore  to  have  been  told  that  the  indirect 
motive  was  quite  consistent  with  absence  of  malice,  imless  the  defend- 
ant knew  (not  simply  believed)  that  there  was  no  probable  cause, 
or  unless  there  was  some  evidence  of  express  malice  towards  the 
plaintiff. 

Lord  Denman,  C.  J.  It  would  be  quite  outrageous  if,  where  a  party 
is  proved  to  believe  that  a  charge  is  unfounded,  it  were  to  be  held 
that  he  could  have  reasonable  and  probable  cause.  Reference  has  been 
made  to  Turner  v.  Ambler,  10  Q.  B.  252,  where  there  was  an  allusion 
to  a  decision  of  my  Brother  Maule,  upheld  afterwards  in  the  Common 
Pleas,'  to  the  effect  that  reasonable  and  probable  cause  cannot  exist 
without  belief.  There  may  possibly  be  some  difficulty  in  distinguish- 
ing the  case  last  mentioned  from  some  others:  but  I  think  that  belief 
is  essential  to  the  existence  of  reasonable  and  probable  cause:  I  do  not 
mean  abstract  belief,  but  a  belief  upon  which  a  party  acts.  Where 
there  is  no  such  belief,  to  hold  that  the  party  had  reasonable  and  prob- 
able cause  would  be  destructive  of  common  sense.*  Proof  of  the 
absence  of  belief  is  almost  always  involved  in  the  proof  of  malice.  In 
Turner  v.  Ambler  there  was  no  point  directly  made  at  the  trial  as  to 
want  of  belief:  the  only  question  was  whether  the  facts  of  themselves 
bor6  out  the  probability  and  reasonableness.  But,  where  a  plaintiff 
takes  upon  himself  to  prove  that,  assuming  the  facts  to  be  as  the  de- 
fendant contends,  still  the  defendant  did  not  believe  them,  we  ought 

1  In  Exch.  Ch.  1 T.  R.  610,  reversing  the  judgment  of  the  Court  of  Exchequer  in 
Sutton  V.  Johnstone,  1  T.  R.  493.  Judgment  of  Exch.  Ch.  afiBrmed  on  error,  in 
Dom.  Proc.  1  T.  R.  784.    s.  c.  1  Bro.  P.  C.  76  (2d  ed.). 

»  1  T.  R.  545. 

*  The  case  alluded  to  is  perhaps  Broad  v.  Ham,  5  B.  N.  C.  722.  By  the  report  of 
B.  c.  in  8  Scott,  40,  the  cause  appears  to  have  been  tried  before  Maide,  B.  (Re- 
porter's note.) 

*  Broad  v.  Ham,  5  B.  N.  C.  722;  Turner  v.  Ambler,  10  Q.  B.  252:  Roret  v.  Lewis, 
5  D.  &  L.  371:  Hinton  v.  Heather.  14  M.  &  W.  131;  Williams  v.  Banks,  1  F.  &  F. 
557;  Chatfield  v.  Comerford,  4  F.  &  F.  1008;  Shrosbery  v.  Osmaston.  37  L.  T.  Rep. 
792;  Steed  v.  Knowles,  79  Ala.  446;  Harkrader  v.  Moore,  44  CaJ.  144;  Ball  v, 
Rawles,  93  Cal.  222*  Galloway  v.  Stewart,  49  Ind.  156;  Donnelly  v.  Burkett,  75  la. 
613 ;  Humphries  v.  Parker,  52  Me.  502, 505 ;  MitcheU  v.  WaU,  1 1 1  Mass.  492 ;  Bart- 
lett  V,  Hawley,  38  Minn.  308;  Peck  v.  Chouteau,  91  Mo.  138;  Chicago  Co.  v.  Kriski. 
30  Neb.  215;  Howard  v.  Thompson,  21  Wend.  319;  Burlingame  v.  Burlingame,  8 
Cow.  141;  Fagnan  v.  Knox,  66  N.  Y.  525:  Anderson  v.  How,  116  N.  Y.  336;  Wass 
V.  Stephens,  128  N.  Y.  123;  Wilson  v.  King,  39  N.  Y.  Super.  Ct.  384;  Linitzky  v. 
Gorman,  146  N.  Y.  Supp.  313;  Thienes  v,  Francis,  69  Or.  165;  King  v.  Colvin,  11 
R.  I.  582;  Scott  v.  Shelor,  28  Grat.  891;  Forbes  v.  Hawnan,  75  Va.  168;  Spear  v. 
Hiles,  67  Wis.  350;  Baker  v,  Kilpatrick.  7  Br.  Col.  L.  R.  150;  Harcourt  v.  Aiken, 
22  N.  Zeal.  L.  R.  389;  Clift  v.  Birmingham,  4  W.  Aust.  L.  R.  20  Accord. 


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CHAP,  v.]  VANDEBBILT  V.  BiATHIS  641 

not  to  entertain  any  doubt  that  it  is  proper  to  leave  the  question  of 
belief  as  a  fact  to  the  jury.  It  is  not  absolutely  necessary  that  this 
belief  should  be  the  motive  on  which  he  acted:  he  may  act  from 
malice,  and  yet,  if  there  was  reasonable  and  probable  cause  in  which 
he  believed,  the  case  against  him  must  fail. 

Ride  reused  as  to  misdirection. 


VANDEBBILT  v.  MATHIS 

SuFBBMB  Court,  Crrr  or  New  York,  Febbuabt,  1866. 

Reported  in  5  Duer,  304. 

By  the  Courts  Bosworth,  J.^  —  To  maintain  an  action  for  mali- 
cious prosecution,  three  facts,  if  controverted,  must  be  established: 

1.  That  the  prosecution  is  at  an  end,  and  was  determined  in  favor 
of  the  plaintiff. 

2.  The  want  of  probable  cause. 

3.  Malice. 

In  such  an  action,  it  is  necessary  to  give  some  evidence  of  the  want 
of  probable  cause.  It  is  insufficient  to  prove  a  mere  acquittal;  that, 
alone,  is  not  prima  fade  evidence  of  the  want  of  probable  cause. 
Gorton  v.  De  Angelis,  6  Wend.  418. 

It  is  equally  essential,  that  the  former  prosecution  should  appear  to 
have  be^  maliciously  instituted.  Malice  may  be  inferred  from  the 
want  of  probable  cause,  but  such  an  inference  is  one  which  a  jury  is 
not  required  to  make,  at  all  events,  merely  because  they  may  find  the 
absence  of  probable  cause. 

Unless  the  evidence,  in  relation  to  the  circumstances  under  which 
the  prosecution  was  ended,  and  that  given  to  establish  the  want  of 
probable  cause,  justify  the  inference  of  malice,  other  evidence,  in  sup- 
port of  it,  must  be  given. 

Evidence  as  to  the  c6nduct  of  the  defendant,  in  the  course  of  the 
transaction,  his  declarations  on  the  subject,  and  any  forwardness  and 
activity  in  exposing  the  plaintiff  by  a  publication,  are  properly  ad- 
mitted to  prove  malice.  Such  evidence  must  be  given  as  will  justify 
a  jury  in  finding  the  existence  of  malice. 

The  rule  is  unifonnly  stated,  that,  to  maintain  an  action,  for  a 
former  prosecution,  it  must  be  shown  to  have  been  without  probable 
cause,  and  malicious.  Vanduzer  v.  Ldnderman,  10  J.  R.  110;  Murray 
V,  Long,  1  Wend.  140;  2d  Stark.  Ev.  494;  Willans  v.  Taylor,  6  Bing. 
183. 

The  judge,  at  the  trial,  charged,  that  the  fact,  that  the  plaintiff  was 
discharged  before  the  magistrate  showed,  prima  facte,  that  there  was 
no  probable  cause  for  the  arrest,  and  shifted  the  burden  of  proof  from 


Only  the  opinion  of  the  court  is  given. 


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642  VANDERBILT  V.  MATHIS  [CHAP.  V. 

the  plaintiff  to  the  defendant,  who  was  bound  to  show,  aflSrmatively, 
that  there  was  probable  cause. 

He  was' requested  to  charge,  "  that  the  discharge  of  Vanderbilt  was 
not  prima  fade  evidence  of  the  want  of  probable  cause."  This  he 
refused  to  do.  To  this  refusal  to  charge,  and  to  the  charge  as  made, 
the  defendant  excepted. 

He  also  charged,  "  that,  if  probable  cause  is  made  out,  the  question 
of  malice  becomes  immaterial,  except  as  bearing  on  the  question  of 
damages." 

"  This  question  of  malice,  in  fact,  supposing  that  probable  cause  did 
not  exist,  is  material  only  as  affecting  the  question  of  damages." 

He  was  requested  to  charge,  "  that  the  jury  could  not  find  a  verdict 
for  the  plaintiff,  imless  he  has  proved  that  there  was  no  probable  cause 
for  the  complaint,  and  not  even  then,  imless  they  beUeved,  from  the 
evidence,  that,  in  making  the  complaint,  the  defendant  acted  from 
maUcious  motives."  This  the  judge  declined  to  do,  and  to  his  refusal 
to  so  charge  the  defendant  excepted. 

Although  the  evidence  which  establishes  the  want  of  probable  cause 
may  be,  and  generally  is,  such  as  to  justify  the  inference  of  malice,  yet 
we  imderstand  the  rule  to  be,  that  when  it  is  a  just  and  proper  infer- 
ence from  all  the  facts  and  circumstances  of  the  case,  upon  all  the 
evidence  given  in  the  cause,  "  that  the  defendant  was  not  actuated  by 
any  improper  motives,  but  only  from  an  honest  desire  to  being  a  sup- 
posed offender  to  justice,  the  action  will  not  lie,  because  such  facts  and 
circumstances  disprove  that  which  is  of  the  essence  of  the  action,  viz., 
the  malice  of  the  defendant  in  pressing  the  charge." 

In  Bulkley  v.  Smith,  2  Duer,  271,  the  court  stated  the  rule  to  be, 
*'  that,  in  order  to  maintain  a  suit  for  a  malicious  prosecution,  the . 
plaintiff  is  bound  to  prove  the  entire  want  of  a  probable  cause  for  the 
accusation,  and  the  actual  malice  of  the  defendant  in  making  it. 
MaUce  is  a  question  of  fact,  which,  when  the  case  turns  upon  it,  must 
be  decided  by  the  jury." 

Story,  J.,  in  Wiggin  v.  CoflSn,  instructed  the  jury  that  two  things 
must  concur,  to  entitle  a  plaintiff  to  recover  in  such  an  action:  "  The 
first  is,  the  want  of  probable  cause  for  the  prosecution;  the  second  is, 
malice  in  the  defendant  in  carrying  on  the  prosecution.  If  either 
ground  fail,  there  is  an  end  of  the  suit." 

In  Vanduzer  v.  Linderman,  10  J.  R.  110,  the  court  said:  "  No  ac- 
tion lies,  merely  for  bringing  a  suit  against  a  person  without  sufficient 
ground.  To  maintain  a  suit  for  a  former  prosecution,  it  must  appeal* 
to  have  been  without  cause,  and  malicious." 

If  the  charge  must  be  imderstood  to  mean,  that  if  the  want  of  prob- 
able cause  was  established,  the  plaintiff  was  entitled  to  recover,  al- 
though the  jury  should  believe,  from  the  whole  evidence,  that,  in 
making  the  complaint,  the  defendant  did  not  act  from  malicious  mo- 
tives, then  we  deem  it  to  be  erroneous.  This  construction  is  the  only 
one,  of  which  the  language  of  the  instruction  appears  to  be  susceptible; 


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CHAP,  v.]  VANDERBILT  V.  MATHIB  643 

for  the  judge,  in  charging  the  jury  stated  that  the  "  question  of  mahce 
in  fact,  supposing  that  probable  cause  did  not  exist,  is  material  only 
as  affecting  the  question  of  damages." 

Malice  in  fact,  is  that  kind  of  mahce  which  is  to  be  proved.  When 
malice  may  be,  and  is  inferred,  from  the  want  of  probable  cause,  it  is 
actual  malice  which  is  thus  proved. 

There  is  no  theoretical  maUce  which  can  satisfy  this  rule,  and  which 
can  coexist  with  the  established  fact,  that  the  prosecution  was  insti- 
tuted in  an  honest  belief  of  the  plaintiff's  guilt,  and  with  no  other 
motives  than  to  bring  a  supposed  offender  to  justice. 

The  question  of  malice  may  be  a  turning-point  of  the  controversy, 
in  an  action  of  this  nature. 

The  want  of  probable  cause  may  be  shown,  and  yet  upon  the  whole 
evidence,  in  any  given  case,  it  may  be  a  fair  question  for  the  deter- 
mination of  a  jury,  whether  the  defendant  was  actuated  by  malice. 
If  the  whole  evidence  is  such,  that  a  jury  cannot  properly  doubt  the 
honesty  and  purity  of  the  motive  which  induced  the  former  prosecu- 
tion, and  if  they  fully  believe  that  it  was  instituted  from  good  motives, 
and  in  the  sincere  conviction  that  the  plaintiff  was  guilty  of  the  offence 
charged,  and  without  malice,  the  defendant  would  be  entitled  to  a 
verdict. 

The  charge  miade,  and  which  was  excepted  to,  must  be  deemed  to 
have  been  made,  to  give  the  jury  a  rule  of  action,  in  disposing  of  the 
case  upon  the  whole  evidence.  We  think  it  was  not  only  calculated 
to  mislead,  but  was  erroneous. 

A  new  trial  must  be  granted,  with  costs  to  abide  the  event.^ 

»  Brown  v,  Hawkes,  [1891]  2  Q.  B.  718;  Grant  v.  Book,  26  Nova  Scotia,  266 
Accord. 

Malice  may  be  inferred  from  want  of  probable  cause.  Hanchey  v.  Bninson,  176 
Ala.  236;  Hawkins  v.  Collins,  6  Ala.  App.  622;  Fowlkes  v.  Lewis,  10  Ala.  App.  643; 
Price  V.  Morris,  122  Ark.  382;  Redgate  v.  Southern  R.  Co.,  24  Cal.  App.  673;  Stew- 
art V.  Mullimui,  11  Ga.  App.  660;  Holliday  v.  Coleman,  12  Ga.  App.  779;  McElroy 
V.  Catholic  fteas  Co.,  264  111.  290;  Pontius  v.  Kimball,  66  Ind.  App.  144:  Singer 
Machine  Co.  v.  Dyer,  156  Ky.  166;  Mertens  v.  Mueller,  119  Md.  626;  Griflfin  v. 
Dearborn,  210  Mass.  308;  Moscob  v.  Frank  Ridlon  Co..  216  Mass.  193;  Krzyszke 
V.  Kamin,  163  Mich.  290;  Bowers  v.  Walker,  192  Mo.  App.  230;  Grorud  r.  Lossl, 
48  Mont.  274;  GaUey  v.  Brennan,  166  App.  Div.  443;  Kellogg  t^.  Ford,  70  Or.  213; 
Cole  V.  Reece,  47  Pa.  Super.  Ct.  212;  Keener  v.  Jeffries,  64  PaTSuper.  Ct.  663;  Tuf- 
shinslnr  v.  Pittsburgh  R.  Co.,  61  Pa.  Super.  Ct.  121 ;  Petty  v.  Huntington  Loan  Co., 
70  W.  Va.  688. 

It  is  not  a  necessary  inference.  Hanowitz  v.  Great  Northern  R.  Co.,  122  Minn. 
241;  Smith  v.  Glynn,  (Mo.)  144  S.  W.  149;  Chicago  R.  Co.  v.  Holliday,  30  Okl. 
680;  Boyer  v.  Buj^er,  19  Wyo.  463. 

It  is  not  inferred  from  failure  to  prosecute,  Malloy  v.  Chicago  R.  Co.,  34  S.  D. 
330,  nor  from  discharge  or  acquittal.    Waring  v.  Hudspeth,  76  Wash.  634. 

Want  ofjjrdbabU  cause  is  not  to  be  inferred  from  malice.  Kuno  v.  Williams,  162 
Cal.  444;  Redgate  v.  Southern  R.  Co.,  24  Cal.  App.  673:  Plummer  v.  Collins,  1 
Boyce,  281 ;  McElroy  v.  Catholic  Press  Co.,  264  LI.  290;  Shadden  v.  Butler,  164  la. 
1;  Hudsonv.  Nolen,  142  Ky.  824- Chapman  v.  Nash,  121  Md.  608;  Griffin  v.  Dear- 
bom,  210  Mass.  308;  Callahan  v.  Kelso.  170  Mo.  App.  338:  Motsinger  v.  Sink,  168 
N.  C.  648;  Kellogg  v.  Ford,  70  Or.  213;  McCoy  v.  Kalbach,  242  Pa.  St.  123; 
Boyer  v.  Bugher,  19  Wyo.  463;  Mcintosh  v.  Wales,  21  Wyo.  397.  But  see  Squires 
V.  Job,  60  Pa.  Super.  Ct.  289. 


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644  CHAPBCAN  V.  PICKER8GILL  [CHAP.  Y. 

MACK  V.  SHARP 
SuFBSiiB  Ck)UBT,  MicmoAN,  Decembeb  14, 1904. 
Revarted  in  138  Miekiifan  Reports,  448. 

MoNTGOMERT,  J.^  The  court  also  ruled  throughout  the  case  that  in 
this  action  the  defendant  was  not  at  liberty  to  prove  that  the  plaintiff 
was  in  fact  guilty  of  the  criminal  offence  imputed  to  him  in  the  prose- 
cution instituted  by  the  defendant.  It  is  well  established  by  authority 
that  in  an  action  for  malicious  prosecution  it  is  a  complete  defence 
to  show  that  the  plaintiff  was  in  fact  guilty  of  the  offence  charged 
against  him  by  defendant,  and  this  though  the  proof  of  guilt  is  fur- 
nished by  evidence  not  known  to  defendant  when  the  prosecution 
against  the  plaintiff  was  instituted.  This  testimony  is  not  in  such 
case  offered  in  support  of  probable  cause,  but  to  show  that  the  plaintiff 
has  suffered  no  wrong  by  his  arrest.  The  law  considers  that,  if  a 
criminal  is  fortimate  enough  to  escape  conviction,  he  should  rest  con- 
tent with  his  good  luck,  and  not  belabor  one  who  suspected  his  guilt 
and  acted  accordingly.  As  was  said  in  Newton  v.  Weaver,  13  R.  I. 
617:  — 

"  The  action  for  malicious  prosecution  was  designed  for  the  benefit 
of  the  innocent,  and  not  of  the  guilty.  It  matters  nofr  whether  there 
was  proper  cause  for  the  prosecution,  or  how  malicious  may  have  been 
the  motives  of  the  prosecutor,  if  the  accused  is  guilty  he  has  no  legal 
cause  for  complaint." 

See,  also,  Threefoot  v.  Nuckols,  68  Miss.  123;  Whitehurst  v.  Ward, 
12  Ala.  264;  Parkhurst  v.  Masteller,  57  Iowa,  478;  Turner  v.  Dinne- 
gar,  20  Hun,  465;  Lancaster  v.  McKay,  103  Ky.  616. 

The  judgment  is  reversed,  and  a  new  trial  ordered. 

The  other  Justices  concurred.* 

CHAPMAN  V.  PICKERSGILL 

In  the  Common  Pleas,  Michaelmas  Tbbm,  1762. 

Reported  in  2  WHson,  145. 

Action  upon  the  case  for  falsely  and  maliciously  suing  out  a  com- 
mission of  bankrupt  against  the  plaintiff,  who  declared  upon  three 
counts;  in  the  first,  having  stated  his  honesty,  he  alleges  that  the  de- 

1  Only  a  portion  of  the  opinion  is  given. 

«  Whitehurst  v.  Ward,  12  Ala.  264;  Shannon  v.  Simms,  146  Ala.  673;  Whipple 
V.  Gorsuch.  82  Ark.  252;  Adams  v,  lisher^  Blackf.  241;  Bruley  v.  Rose,  57  la. 
651;  Parkhurst  v.  Masteller,  57  la.  474;  White  v.  International  Text  Book  Co., 
156  la.  210;  Lancaster  v.  McKaV;  103  Ky.  616, 624;  Bacon  v.  Towne,  4  Cush.  217, 
241;  Threefoott?.  Nuckols,  68  Miss.  116;  Morris  v.  Corson,  7  Cow.  281 ;  Turner  p. 
Dinnegar,  20  Hun.  465;  Bell  v.  Pearcy,  5  Ired.  83;  Johnson  v.  Chamb^,  10  Ired. 
287;  Thurber  v.  Eastern  Ass'n,  118  N.  C.  129  Accord.  See  Indianapolis  Traction 
Co.  V,  Henby,  178  Ind.  239. 


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CHAP,  v.]  CHAPMAN  V.  PICKERSGILL  645 

fendant  did  falsely  and  maliciously  exhibit  a  petition  to  the  Lord 
Chancellor  that  the  plaintiff  was  indebted  to  him  in  £200,  and  had 
conmiitted  an  act  of  bankruptcy,  that  the  commfesion  thereupon 
issued,  and  the  plaintiff  was  declared  a  bankrupt,  and  that  afterwards 
the  commission  was  superseded;  and  the  plaintiff  avers  that  he  never 
committed  any  act  of  bankruptcy;  the  second  coimt  is  much  the  same, 
with  the  like  averment;  the  third  count  is  much  the  same,  but  without 
such  averment.  To  this  the  defendant  pleaded  the  general  issue,  and 
there  was  a  general  verdict  and  damages  for  the  plaintiff  taken,  upon 
all  the  three  coimts;  whereupon  it  was  moved  that  the  judgment 
might  be  arrested. 

This  case  was  argued  twice  at  the  bar,  in  two  former  terms  by  Ser- 
jeant Hewitt  and  Serjeant  Burland  for  the  defendant,  and  by  Serjeant 
Whitaker  and  Serjeant  Nares  for  the  plaintiff;  and  in  this  term  the 
Lord  Chief  Justice  gave  the  opinion  of  the  whole  court,  that  judgment 
must  be  for  the  plaintiff. 

Lord  Chief  Justice.  Upon  the  arguing  of  this  case,  the  first 
objection  was,  that  this  action  will  not  he,  there  being  a  remedy  given 
by  statute,  that  a  proceeding  on  a  commission  of  bankruptcy,  was  a 
proceeding  in  nature  of  a  civil  suit;  and  that  no  action  of  this  sort  was 
ever  brought:  but  we  are  all  of  opinion  that  this  action  is  main- 
tainable.^ 

The  general  grounds  of  this  action  are,  that  the  oommission  was 
falsely  and  maliciously  sued  out,  that  the  plaintiff  has  been  greatly 
dams^ged  thereby,  scandalized  upon  record,  and  put  to  great  charges 
in  obtaining  a  supersedeas  to  the  commission;  here  is  falsehood  and 
malice  in  the  defendant,  and  great  wrong  and  damage  done  to  the 
plaintiff  thereby.  Now,  wherever  there  is  an  injury  done  to  a  man's 
property  by  a  false  and  malicious  prosecution,  it  is  most  reasonable 
he  should  have  an  action  to  repair  himself.  See  5  Mod.  407,  8; 
10  Mod.  218;  12  Mod.  210.  I  take  these  to  be  two  leading  cases,  and 
it  is  dangerous  to  alter  the  law.  See  also  12  Mod.  273;  7  Rep.  Bul- 
wer's  case,  1.    2  Leon. 1  Ro.  Abr.  101;  1  Ven.  86;   1  Sid.  464. 

1  Watson  V.  Norbury,  Sty.  3,  201;  Brown  v.  Chapman,  1  W.  Bl.  427;  Cotton  v. 
James,  1  B.  <&  Ad.  128;  Whitworth  v,  HaU,  2  B.  &  Ad.  695;  Hay  v,  Weakley,  5  Car. 
&  P.  361:  Farley  v,  Danks,  4  E.  &  B.  493;  Johnson  i;.  Emerson,  L.  R.  6  Ex.  329; 
Metropolitan  Bank  v.  Pooley,  10  App.  Cas.  210;  Stewart  v.  Sonnebom,  98  U.  S. 
187;  Wilkinson  v.  Goodfellow  Co.,  141  Fed.  218;  McDonald  v.  Goddard  Grocery 
Co^  184  Mo.  App.  432;  Lawton  v.  Green,  5  Him,  157;  Cohen  v.  Nathaniel  Fisher 
A  Co.,  135  App.  Div.  238;  King  v.  Sullivan,  (Tex.  Qv.  App.)  92  S.  W.  51;  Carle- 
ton  V.  Taylor,  50  Vt.  220  {aemble}  Accord, 

Similarly  an  action  will  lie  without  proof  of  special  damage  for  a  malicious  and 
unfoimded  presentation  of  a_petition  to  wind  up  a  trading  company.  Quartz  Co. 
V.  Eyre,  11  Q.  B.  Div.  674;  Wyatt  v.  Pahner,  [1899]  2  qTb.  106  (aemble). 

Malicious  inquiaition  of  lunacy .  see  Lockenour  v.  Sides,  57  Ind.  360;  Dordoni  v. 
Smith,  82  N.  J.  Law,  525. 

Malidoiu  proceeding  for  suspension  or  removal  of  an  officer,  Fulton  v,  Ingalls, 
165  App.  Div.  323. 

Malicious  prosecution  of  unfounded  daim  for  a  patent,  Strelitzer  v.  Schnaier, 
135  App.  Div.  384. 


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646  TOMLINSON  V.  WARNER  [CHAP.  V. 

But  it  is  said  this  action  was  never  brought;  and  so  it  was  said  in 
Ashby  and  White;  I  wish  never  to  hear  this  objection  again.  This 
action  is  for  a  tort;  torts  are  infinitely  various,  not  limited  or  con- 
fined, for  there  is  nothing  in  nature  but  may  be  an  instrument  of 
mischi^,  and  this  of  suing  out  a  commission  of  bankruptcy  falsely 
and  maliciously,  is  of  the  most  injurious  consequence  in  a  trading 
country. 

It  is  further  said  the  stat.  5  Geo.  2,  has  given  a  remedy,  and  there- 
fore this  action  will  not  lie;  but  we  are  all  of  opinion,  that  in  this 
case  the  plaintiff  would  have  been  entitled  to  this  remedy  by  action  at 
oonmion  law,  if  this  Act  had  never  been  made,  and  that  tiie  statute 
being  in  the  affirmative,  hath  not  taken  away  the  remedy  at  law. 
2  Ra3nn.  163.  And  this  is  a  imiversal  rule,  that  an  affinnative  statute 
is  hardly  ever  repealed  by  a  subsequent  affirmative  statute,  for  if  it  is 
possible  to  reconcile  two  statutes  they  shall  both  stand  together;  if 
they  cannot  be  reconciled,  the  last  shall  be  a  repeal  of  the  first;  but 
the  most  decisive  answer  is,  that  this  statute-remedy  is  a  most  inade- 
quate and  uncertain  remedy;  for  though  there  be  the  most  outrageous 
malice  and  perjury,  and  the  party  injured  suffer  to  the  amount  of  ten 
or  twenty  thousand  pounds,  yet  the  Chancellor  has  no  power  to  give 
him  more  than  the  penalty  of  £200;  besides,  the  method  of  applying 
to  the  Chancellor,  is  more  tedious,  expensive,  and  inconvenient  than 
this  common  law  remedy,  and  this  case  in  its  nature  is  more  properly 
the  province  of  a  jurjr,  than  of  any  judge  whatever. 

It  is  further  objected,  that  in  the  third  count  there  is  no  averment 
that  the  plaintiff  was  not  indebted  to  the  defendant,  or  ever  committed 
an  act  of  bankruptcy;  but  no  case  was  cited  to  show  such  averment  to 
be  necessary;  the  ground  and  substance  of  the  declaration  is  falsehood 
and  malice;  there  are  no  instances  of  such  averments  in  conspiracy, 
that  the  party  was  innocent,  or  did  not  do  the  fact  on  which  he  was 
indicted,  but  the  precedents  are  the  other  way.  In  an  action  for 
words,  as  for  saying  a  man  is  a  thief,  the  plaintiff  has  no  occasion  to 
aver  he  is  not  a  thief,  and  this  case  is  analogous;  for  after  the  plain- 
tiff has  alleged  that  the  commission  was  false  and  malicious,  it  would 
be  tautology,  to  make  such  averment  that  he  was  not  indebted,  Ac, 
and  this  declaration  would  have  been  good  on  a  demurrer;  more 
clearly  it  is  so,  after  a  verdict.  Judgment  for  the  plaintiff. 


TOMLINSON  t;.  WABNER 
Supreme  Court,  Ohio,  December,  1839. 

Reported  in  9  Ohio  Reports,  104. 

MAUcious-prosecution.  From  Licking.  The  plaintiffs  declared  that  they 
were  residents  of  the  town  of  Newark,  and  possessed  of  a  large  amount  of 
personal  property,  deposited  in  a  warehouse  to  be  forwarded  to  New  York,  for 
a  market;  and  that  the  defendant  well  knowing  the  premises,  and  that  the 


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CHAP,  v.]  TOMLINSON  V.  WARNER  647 

plaintiffs  had  not  absconded,  but  contriving  and  maliciously  intending  wrong- 
fully to  injure  them,  made  oath  before  a  justice  of  the  peace,  that  they  had 
absconded  to  the  injury  of  their  creditors,  as  he  verily  believed,  and  there- 
upon sued  out  of  the  Court  of  Common  Pleas,  a  writ  of  attachment,  and 
caused  the  said  property  to  be  seized  by  the  sheriff,  and  held  for  a  long  time, 
whereby  the  same  was  injured,  the  plaintiffs  deprived  of  the  opportunity  of 
forwarding  their  goods  to  a  market,  and  greatly  injured.    Plea,  not  guilty. 

Upon  trial  to  the  jury,  the  counsel  for  the  plidntiffs  admitted  that  the 
plaintiffs  wereindebt^  to  the  defendant  at  the  time  of  his  affidavit,  as  sworn 
to  in  it;  whereupon  the  court  directed  a  nonsuit,  with  leave  to  move  to  open 
it,  and  for  a  new  trial,  which  is  now  made.^ 

By  the  Court,  Wood,  J.  The  only  question  presented  in'this  motion,  is,  do 
the  facts  set  forth  in  the  declaration  constitute  a  legal  cause  of  action,  pro- 
vided the  plaintiffs  were  indebted  to  the  defendant,  when  he  sued  out  the  writ 
of  attachment  ? 

In  Connecticut,  there  is  a  statute  which  provides,  that  where  a  plaintiff 
shall "  willingly  and  wittingly  "  wrong  any  defendant  by  prosecuting  any  ac- 
tion against  him  with  intent  wrongfully  to  trouble  and  vex  him,  such  plaintiff 
shall  pay  treble  damages  for  the  first  offence,  be  liable  to  a  fine  for  the  second, 
and  for  the  third,  may  be  proceeded  against  as  a  conmion  barrator.  Judge 
Swift  thinks  the  act  founded  in  the  clearest  principles  of  justice.  Swift  Dig. 
493.  At  common  law,  it  seems  well  settled,  that  no  action  will  lie  for  a  mali- 
cious prosecution  of  a  civil  suit,  without  cause,  where  there  is  no  arrest. 
I  Salk.  R.  14.  The  costs  allowed  in  all  other  cases  are  supposed  to  be  a  suffi- 
cient compensation  for  the  injury,  however  malicious.  The  rule  itself  may 
perhaps  be  admitted,  but  the  reason  on  which  it  is  said  to  be  founded  cannot 
be  so  readily  admitted,  for  at  common  law  no  costs  were  allowed.  If  the 
plaintiff  failed,  he  was  amerced  for  his  false  clamor,  and  if  he  succeeded,  the 
defendant  was  at  the  mercy  of  the  King.  But  at  common  law,  whenever  there 
was  an  arrest,  holding  to  bail,  or  imprisonment,  where  no  debt  was  due,  or 
for  a  greater  sum  than  was  due,  with  a  malicious  intention  to  injure,  the 
action  lay  for  a  malicious  arrest.  1  Saund.  R.  228.  The  action  for  a  malicious 
prosecution,  which  technically  only  applies  to  cases  of  malicious  prosecution 
of  criminal  complaints,  lies  as  well  where  there  is  not,  as  where  there  is  an 
arrest;  and  the  grounds  of  the  action  are  the  malice  of  the  defendant,  want 
of  probable  cause,  and  injury  to  the  plaintiff's  person  by  imprisonment,  his 
reputation  by  scandal,  or  to  his  property  by  expense.  1  Swift  Dig.  491.  Hav- 
ing no  direct  adjudication  on  the  question  before  us,  we  may  look  to  the 
analogies  of  the  law.  The  counsel  for  the  defendant  insist  that  because  the- 
plaintiffs'  indebtedness  to  the  defendant  in  the  former  suit  is  admitted,  there 
was  probable  cause  for  suing  out  the  writ  of  attachment.  This  does  not  seem 
to  us  to  follow.  To  constitute  probable  cause  for  suing  out  a  writ  of  attach- 
ment, the  law  requires  an  affidavit  of  indebtedness,  and  also  that  the  debtor 
has  absconded,  or  is  non-resident.  The  absence  of  either  is  absence  of  prob- 
able cause  for  the  writ,  and  the  false  affirmation  of  either  fact,  knowin^y,  as 
a  means  of  procuring  the  writ,  shows  express  malice,  whilst  the  taking  of 
property  without  cause  is  a  sufficient  injury  to  sustain  the  action. 

In  the  Supreme  Court  of  New  York,  it  has  been  decided,  that  case  would 
lie  against  both  plaintiff  and  defendant,  for  fraudulently  setting  up  the  judg- 
ment as  unsatisfied,  when  in  fact  paid,  and  causing  an  execution  and  sale  of 

i  The  arguments  of  counsel  are  omitted. 


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648  TOMLINSON  V.  WARNER  [CHAP.  V. 

land  once  held  by  it  as  a  lien,  but  which  had  been  afterwards  conveyed  by  the 
defendant  to  a  third  person.  The  court  in  that  case  say,  ''  If  it  appear  that 
the  unlawful  acts  of  the  defendant  occasioned  trouble,  inconvenience,  or  ex- 
pense to  the  plaintiff,  this  action  lies."  The  general  rule  is,  that  for  every 
injury  the  law  gives  redress;  and  it  would  be  a  reproach  to  the  administra- 
tion of  justice,  if  one,  by  perjury,  could  take  from  another  the  control  of 
his  property,  under  form  of  law,  and  the  law  afford  no  remedy.  Nice  techni- 
calities are  sometimes  applied  to  get  rid  of  a  hard  case;  but  when,  under 
form  of  law,  opportunity  is  sought  to  gratify  malice,  to  the  injury  of  another, 
courts  will  not  be  astute  to  avoid,  but  rather  seek  ground  to  sustain  an  ac- 
tion. We  have  no  facts  in  this  case,  before  us,  but  the  statement  in  the 
declaration,  and  the  admission  of  indebtedness;  but  these  show  a  sufficient 
prima  facie  cause  of  action,  and  cause  for  opening  up  the  nonsuit. 

New  trial  granted} 

^  Malicious  arrest  on  civil  process.    Stribler  v.  Jones,  1  Lev.  276;  Daw  v.  Swain, 

1  Sid.  424;  Parker  v,  Landey,  Gilb.  163,  10  Mod.  209,  s.  c;  Goelin  v,  Wilcock, 

2  Wils.  302;  Sinclair  ».-Eldred,  4  Taunt  7;  Pierce  v.  Street,  3  B.  &  Ad.  397; 
Coaer  v.  Pilhng,  4  B.  &  C.  26;  Saxon  v,  Caatle.  6  A.  &  E.  662:  Roret  v,  Lewis,  5  D. 
&  L.  371;  Medina  v.  Grove,  10  Q.  B.  152;  Daniels  v.  Fielding,  16  M.  &  W.  200 
(semblsy  see  Clerk  &  Lindsell,  Torts,  5  ed.  683);  Moore  v.  Guardner,  16  M.  &  W. 
595  (semble);  Ross  v.*  Norman,  5  Ex.  359;  Ventress  v.  Rower,  73  Ga.  534;  Joiner  v. 
Ocean  Co.,  86  Ga.  238;  Cardival  v.  Smith,  109  Mass.  158;  Hamilbur^  v.  Shepard, 
119  Mass.  30;  Cotter  v.  Nathan  &  Hurst  Co.,  218  Mass.  315;  Stanfield  v,  Phillipe, 
78  Pa.  St.  73;  Emerson  ».  Cochran,  111  Pa.  St.  619;  Ward  v,  Sutor,  70 Tex.  343. 

Malicious  holding  to  bail.  Steer  v.  Scoble,  Cro.  Jac.  667;  Berry  v.  Adamson,  6 
B.  &  C.  528;  Small  ».  Gray,  2  Car.  &  P.  605. 

Malicious  seizure  of  property  on  civil  process.  Sanders  v,  Powell,  1  Lev.  129, 
1  Sid.  183, 1  Keb.  603,  s.  c. ;  Craig  v.  Hasell,  4  Q.  B.  481 ;  Medina  v.  Grove,  10  Q.  B. 
152;  Redway  v.  McAndrew,  L.  R.  9  Q.  B.  74;  Kirksey  v,  Jones,  7  Ala.  622;  Vesper 
V,  Crane  Co.,  165  Cal.  36;  Juchter  v,  Boehm,  67  Ga.  634;  Wilcox  v.  McKenrie,  75 
Ga.  73:  Lawrence  v.  Hagerman^  111.  68;  Spaids  v.  Barrett,  67  HI.  289:  Western 
Co.  V,  Wibnarth,  33  Kan.  510;  WiDs  v.  Noyes,  12  Pick.  324;  Savage  v.  Brewer,  16 
Pick.  453;  O'Brien  v.  Barry  106  Mass.  300;  Bobsin  v,  Kingsbury,  138  Mass.  538; 
Grant  v.  Keinhart,  33  Mo.  App.  74:  Smith  v.  Smith,  56  How.  Pr.  316;  Jaksich  v. 
Guisti,  36  Nev.  104;  Tyler  t>.  Mahoney,  166  N.  C.  509;  Fortman  v.  Rottier,  8 
Ohio  St.  548;  Sommer  v.  Wilt,  4  S.  &  R.  19;  Mayer  ».  Walter,  64  Pa.  St.  283. 

Malicious  replevin.  O'Brien  v.  Barry,  106  Mass.  300;  McPherson  v.  R\myon,  41 
Minn.  524;  Martin  v.  Rexford,  170  N  C.  540. 

Malicious  issue  of  an  injunction.  Munce  v.  Black,  7  Ir.  C.  L.  R.  475;  McFar- 
lane  v.  Garrett,  3  PennewiU,  36;  Landis  v.  Wolf,  206  111.  392;  Krzyszke  v.  Kamin, 
163  Mich.  290;  Manlove  v.  Vick,  55  Miss.  567;  Burt  v.  Smith,  84  App.  Div.  47; 
Coal  Co.  V.  Upson,  40  Ohio  St.  17;  Hess  v.  German  Co.,  37  Or.  297;  Batson  v. 
Paris  Co.,  73  8.  C.  368;  Powell  v.  Woodbury,  85  Vt.  504;  Williams  v.  Ainsworth, 
121  Wis.  600  (sembk). 

Malicious  procurement  of  the  execution  of  a  search  warrani.    Cooper  v.  Booth, 

3  Esp.  135,  8.  c.  1  T.  R.  535  (cited);  Elsee  v.  Smith,  2  Chit.  R.  304, 1  D.  A  R.  97, 
8.  c;  Wyatt  v.  White,  29  L.  J.  Ex.  193;  Carey  v.  Sheets,  60  Ind.  17,  67  Ind.  375: 
WWtson  V.  May,  71  Ind.  269;  Olson  v.  Tvete,  46  Minn.  225;  Miller  v.  Brown,  3 
Mo.  94;  Boeger  v.  Langenberjg,  97  Mo.  390. 

Malicious  garnishment.  King  v.  Yarbray,  136  Ga.  212;  Lopes  v.  Connolly,  210 
Mass.  487. 

Levy  of  execution  under  fraudulent  judgment.  Atlanta  Ice  Co.  v.  Reeves,  136 
Ga.  294. 

See  also  Hope  v.  Evered,  17  Q.  B.  Div.  338;  Lea  v.  Charrington.  23  Q.  B.  Div. 
46;  Utting  v.  Bemey,  5  T.  L.  Rep.  39.  -,^     ,      ^ 


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CHAP,  v.]  WETMORE  V.  MELLINGER  649 

WETMORE  V.  MELLINGER 

Supreme  Court,  Iowa,  April  9, 1884. 

Reported  in  64  I<nva  ReportSf  741. 

Beck,  J.^  The  petition  alleges  that  defendants  brought  an  action 
against  plaintiff  and  his  wife,  charging  in  the  petition  that  they  two 
conspired  and  confederated  together  to  defraud  defendants,  by  repre- 
senting to  defendants,  under  the  assumed  name  of  Baker,  that  they 
were  the  owners  of  certain  lands  in  Poweshiek  County,  which  defend- 
ants were  induced  to  purchase  of  plaintiff  and  his  wife,  who,  in  such 
assumed  name,  executed  to  defendants  a  warranty  deed  therefor;  that, 
in  an  action  by  one  Woodward,  a  deed,  purporting  to  be  executed  by 
him  to  the  Bakers,  under  which  they  claimed  title  to  the  lands,  was 
declared  to  be  void,  for  the  reason  that  it  was  forged  and  fraudulent, 
and  that  plaintiff  herein  and  his  wife  well  knew  the  condition  of  their 
title,  and  representing  that  they  were  the  owners  thereof,  for  the  pur- 
pose of  cheating  defendants,  and  of  obtaining  money  by  false  and 
fraudulent  pretences,  and  did,  in  that  manner,  obtain  the  sum  of 
$3,000  from  defendants.  It  is  further  alleged  that  defendants  herein 
served  out  a  writ  of  attachment  in  the  suit  brought  by  them,  which 
was  levied  upon  real  estate  owned  by  plaintiff's  wife,  and  that  de- 
fendants for  a  time  prosecuted  their  action,  but  finally  dismissed  it 
at  their  own  costs.  Plaintiff,  in  his  petition  in  this  case,  alleges  that 
he  was  not  indebted  to  defendants  in  any  sum  at  the  time  theu*  action 
was  brought  against  him;  that  he  was  not  guilty  of  the  frauds  therein 
charged,  and  that  the  action  was  commenced  and  prosecuted  by  de- 
fendants maliciously  and  without  probable  cause.  The  defendants, 
in  their  answer,  admit  the  commencement  of  the  suit,  the  issuing  of 
the  attachment,  and  that  it  was  levied  upon  real  estate  owned  by 
plaintiff's  wife.  There  was  no  evidence  showing,  or  tending  to  show, 
that  the  writ  of  attachment  was  levied  upon  any  property  owned  by 
plaintiff.    The  wife  of  plaintiff  does  not  Join  in  this  action. 

We  think  the  doctrine  is  well  established  by  the  great  preponder- 
ance of  authority  that  no  action  will  lie  for  the  institution  and  prose- 
cution of  a  civil  action  with  malice  and  without  probable  cause,  where 
there  has  been  no  arrest  of  the  person  or  seizure  of  the  property  of 
defendant,  and  no  special  injury  sustained,  which  would  not  neces- 
sarily result  in  all  suits  prosecuted  to  recover  for  like  causes  of  action. 

See  1  Am.  Leading  Cases,  p.  218,  note  to  Munn  v.  Dupont  et  al., 
and  cases  there  cited;  Mayer  v.  Walter,  64  Pa.  St.  289;  Kramer  i;. 
Stock,  10  Watts,  115;  Bitz  v,  Meyer,  11  Vroom,  252,  s.  c.  29  Am.  Rep. 
233;  Eberly  v.  Rupp,  90  Pa.  St.  259;  Gorton  v.  Brown,  27  111.  489; 
Woodmansie  v,  Lc^^,  2  N.  J.  L.  93  (1  Pen.);  Parker's  Adm*rs  v, 
Frambes,  Id.  156;  Potts  v.  Imlay,  4  N.  J.  L.  330  (1  South.) 

^  Only  the  opinion  of  the  court  on  this  point  is  given. 


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650  WETMORE  V.  MELLINGEB  [CHAP.  V. 

This  doctrine  is  supported  by  the  following  considerations:  The 
courts  are  open  and  free  to  all  who  have  grievances  and  seek  remedies 
therefor,  and  there  should  be  no  restraint  upon  a  suitor,  through  fear 
of  liabiUty  resulting  from  failure  in  his  action,  which  would  keep  him 
from  the  courts.  He  ought  not,  in  ordinary  cases,  to  be  subject  to  a 
suit  for  bringing  an  action,  and  be  required  to  defend  against  the 
charge  of  malice  and  the  want  of  probable  cause.  If  an  action  may 
be  maintained  against  a  plaintiff  for  the  malicious  prosecution  of  a 
suit  without  probable  cause,  why  should  not  a  right  of  action  accrue 
against  a  defendant  who  defends  without  probable  cause  and  with 
malice  ?  The  doctrine  sin^y  tends  to  discourage  vexatious  Utigation, 
rather  than  to  promote  it. 

It  will  be  observed  that  the  statement  of  the  doctrine  we  have  made 
extends  it  no  farther  than  to  cases  prosecuted  in  the  usual  manner, 
where  defendants  suffer  no  special  damages  or  grievance  other  than  is 
endured  by  all  defendants  in  suits  brought  upon  like  causes  of  action. 
If  the  bringing  of  the  action  operates  to  disturb  the  peace,  to  impose 
care  and  expense,  or  even  to  cast  discredit  and  suspicion  upon  the  de- 
fendant, the  same  results  foUow  all  actions  of  Uke  character,  whether 
they  be  meritorious,  or  prosecuted  maliciously  and  without  probable 
cause.  They  are  incidents  of  litigation.  But  if  an  action  is  so  prose- 
cuted as  to  entail  unusual  hardship  upon  the  defendant,  and  subject 
him  to  special  loss  of  property  or  of  reputation,  he  ought  to  be  com- 
pensated. So,  if  his  property  be  seized,  or  if  he  be  subjected  to  arrest 
by  an  action  maliciously  prosecuted,  the  law  secures  to  him  a  remedy. 
In  the  case  at  bar,  the  pleadings  and  evidence  show  no  such  spe- 
cial damages.  No  action  could  be  prosecuted  to  recover  money 
fraudulently  obtained,  in  which  the  defendant  would  not  suffer  the 
very  things  for  which  plaintiff  in  this  case  seeks  compensation  in 
damages. 

(Counsel  for  plaintiff,  in  support  of  their  position  that  the  action  may 
be  maintained,  though  no  arrest  of  defendant  or  seizure  of  pn^rty 
be  had  in  the  proceeding  alleged  to  have  been  maUciously  prosecuted, 
cite  Green  v.  Cochran,  43  Iowa,  544,  and  Moffatt  et  al.  v.  Fisher, 
47  Id.  473.  In  the  first  case,  the  action  alleged  to  be  malicious  was 
a  proceeding  for  bastardy,  which,  under  the  statute,  operated  as  a 
hen  upon  defendant's  lands  from  the  commencement.  In  the  other 
case,  the  action  which  was  the  foundation  of  plaintiff's  claim  was 
forcible  entry  and  detainer,  and,  before  final  disposition  thereof,  the 
defendant  was  ousted  of  possession  of  the  land,  whereon  was  a  coal 
mine.  In  both  instances  the  property  of  the  respective  defendants 
was  reached  by  the  proceedings.  The  facts  of  these  cases  are  not 
within  the  rule  we  have  stated,  and  do  not  support  counsel's  position. 

Affirmed} 

1  Savile  v.  Roberta,  1  Ld.  Ray.  374;  Purton  v,  Honnor,  1 B.  &  P.  205:  Cotterell 
V.  Jones,  11  C.  B.  713;  Quartz  Ck).  v.  Eyre,  11  Q.  B.  Div.  674:  Ray  ».Law,  Pet. 
C.  C.  207;  Tamblyn  v.  Johnston,  126  Fed.  267,  270;  Mitchell  v.  South  Western 


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CHAP,  v.]  FLIGHT  V.  LEMAN  651 

FLIGHT  t;.  LEMAN  * 

In  thb  Queen's  Bench,  June  9, 1843. 

Reported  in  4  Qtteen'a  Bench  BeporU,  883. 

Cabs.  The  second  count  of  the  declaration  alleged  that  the  defendant  here* 
tofore,  to  wit  1st  January,  1838,  and  on  divers  &c.  between  that  day  and  22d 
November,  1838,  contriving  and  maliciously  intending  to  injure,  harass  and 
danmify  plaintiff,  and  to  put  him  to  great  vexation,  unlawfully  and  mali- 
ciously did  advise,  procure,  instigate  and  stir  up  John  Thomas  to  commence 
and  prosecute  an  action  of  trespass  on  the  case  in  the  court  &c.  (Queen's 
Bench)  against  the  now  plaintiff;  that  by  and  through  such  advice,  procure- 
ment, instigation  and  stirring-up,  John  Thomas  did  in  fact  af terwaids,  to  wit 
4th  January,  1838,  commence  and  prosecute  the  last-mentioned  action.  The 
present  declaration  then  set  out  tlu-ee  counts  of  a  declaration  in  case  at  the 

Co.,  75  Ga.  398  (but  see  Slater  v.  Kimbro,  91  Ga.  217);  Smith  v,  Mich.  Co.,  175  111. 
619:  Bonney  v.  King,  201  HI.  47;  McCormick  v.  Weber,  187  HI.  App.  290;  Smith 
V.  Hjntrager,  67  la.  109;  Cattle  Co.  v.  Nat.  Bank,  127  la.  153. 158;  White  v.  Inter- 
national Text  Book  Co.,  156  la.  310;  Cade  v,  Yocimi,  8  La.  Ann.  477;  McNamee 
V,  Mink,  49  Md.  122;  Sup.  Lodge  v,  Unverzagt,  76  Md.  104  (see  Clements  v.  Odor- 
less Co.,  67  Md.  461):  Woodniansie  v,  Logan,  1  Penningt.  93;  Potts  v.  Imlay,  1 
South.  330;  State  v,  Meyer,  40  N.  J.  Law,  252;  Ely  v.  Davis,  111  N.  C.  24  (aemble) ; 
Terry  v,  Davis,  114  N.  C.  81;  Carpenter  v.  Hanes,  167  N.  C.  551;  Cincinnati  Co. 
V.  Bruck,  61  Ohio  St.  489  (explaining  Pope  v.  Pollock,  46  Ohio  St.  367) :  Kramer  v. 
Stock,  10  Watts,  115;  Mayer  v,  Walter,  64  Pa.  St.  283;  Muldoon  v,  Rickey,  103 
Pa.  St.  110;  Emerson  v,  Cochran,  111  Pa.  St.  619,  622;  Michell  v.  Donanski,  28 
R.  I.  94,  97  (aerrMe);  Smith  v,  Adams,  27  Tex.  28;  Johnson  v.  King,  64  Tex.  226; 
Nowotny  v,  Grona,  44  Tex.  Civ.  App.  325;  J.  CaUsher  Co.  v,  Bloch,  (Tex.  Civ. 
App.)  147  S.  W.  683;  Abbott  v.  Thome,  34  Wash.  692;  Luby  v.  Bennett,  111  Wis. 
613  (aemble);  Cross  v,  Comm.  Agency,  18  N.  Zeal.  L.  R.  153  Accord. 

Bumap  V.  Albert,  Taney,  244;  Cooper  v.  Armour,  42  Fed  215,  217;  Wade  v. 
Nat.  Bank,  114  Fed.  377;  Eastin  v.  Stockton  Bank,  ^  Cal.  123;  Berson  v.  Ewing, 
84  Cal.  89;  Hoyt  v.  Macon,  2  Col.  113  (semhle);  Whipple  v.  Fuller,  11  Conn.  582; 
Wall  V,  Toomey,  52  Conn.  35;  Pajnie  v.  Donegan,  9  Hi.  App.  566  (aemble);  Locke- 
nour  V.  Sides,  57  Ind.  360;  McCardle  t;.  McGinley,  86  Ind.  538;  Whitesell  v.  Study, 
37  Ind.  App.  429:  Marbourg  v.  Smith.  11  Kan.  554;  Cox  v,  Taylor,  10  B.  Mon.  17; 
Woods  V,  Finneli,  13  Bush.  628:  Johnson  v,  Meyer,  36  La.  Ann.  333  (aemble); 
AUen  V,  Codman,  139  Mass.  136  (aemble);  Wilson v.  Hale,  178  Mass.  Ill;  Brand  v, 
Hinchman,  68  Mich.  590;  Antcliff  v.  June,  81  Mich.  477:  McPherson  v.  Runyon, 
41  Minn.  524;  O'Neill  v.  Johnson,  53  Minn.  439;  Eickhoff  v.  Fidelity  Coy  74  Minn. 
139;  Virtues.  Creamery  Mfg.  Co.,  123  Minn.  17;  Brown  v.  City,  90  Mo.  377 
(aemble);  Smith  v,  Burrus.  106  Mo.  94;  McCormick  Co.  t;.  Willan,  63  Neb.  391; 
Pangbum  v.  Bull,  1  Wend.  345:  Dempsey  v.  Lepp,  52  How.  Pr.  11;  Smith  v. 
SmiUi,  20  Hun,  555  (aemble):  Willard  ».  Holmes,  21  N.  Y.  Supp.  998  (aembk):  (but 
see  Willard  w.  Holmes,  142  N.  Y.  492;  Paul  v.  Fargo,  84  App.  Div.  9);  Kolka  v. 
Jones,  6  N.  D.  461;  Sawyer  v.  Shick,  30  Okl.  353;  Lipscomb  v.  Shofner,  96  Tenn. 
112;  Swepson  v.  Davis,  109  Tenn.  99;  Closson  v.  Staples,  42  Vt.  209  Contra. 

In  Eastin  v.  Stockton  Bank,  aupra,  the  court  said:  "  The  English  cases  which 
deny  the  right  to  maintain  the  action,  stand  upon  the  ground  that  the  successful 
defendant  is  adequately  compensated  for  the  damages  he  sustains  by  the  costs 
allowed  him  by  the  statute.  Those  costs,  it  seems,  include  the  attorney's  charges 
for  preparing  the  case  for  trial  in  all  its  parts,  the  fees  of  the  witnesses  and  the 
court  officials,  and  even  the  honorarium  of  the  barrister  who  conducted  the  case  in 
court.  The  reason  upon  which  the  English  rule  rests  would  not,  therefore,  seem 
to  apply  here,  where  the  costs  recoverable  under  the  statute  are  confined  to  much 
narrower  limits.  ...  •  n         u 

"  Two  other  objections  made  to  the  maintenance  of  the  action,  —  first,  the 
claim  that  if  such  suits  are  allowed,  litigation  will  become  interminable,  because 


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652  FUGHT  V.  LEMAN  [CHAP.  V. 

suit  of  John  Thomas  against  the  defendant,  averment  of  a  trial  at  nisi  priua 
at  Dorchester,  on  18th  July,  1838,  and  that  the  defendant  was  then  and  there 
acquitted  of  the  premises  mentioned  to  be  chai^  against  him  by  John 
Thomas.  And  thereupon  afterwards,  to  wit  22d  November,  1838,  it  was  con- 
sidered, in  and  by  the  said  court  &c.,  amongst  other  things,  that  the  said 
John  Thomas  be  in  mercy  for  his  false  claim  against  the  now  plaintiff  de- 
fendant in  the  said  last-mentioned  action  as  aforesaid.  Whereby  the  now 
plaintiff  was  not  only  put  to  great  trouble  and  vexation,  but  was  also  obliged 
to  pay,  and  did  in  fact  pay,  a  large  &c.,  to  wit  £800,  in  and  about  the  defence 
of  the  said  action. 

The  defendant  pleaded,  in  effect,  that  the  advice  given  by  him  was  given  in 
the  character  of  an  attorney. 

Replication  de  injuria. 

Special  demurrer.    Joinder.^ 

Ix)RD  Denman,  C.  J.  The  case  of  Pechell  v.  Watson,  8  M.  &  W.  691,  pro- 
ceeded on  the  principle  that  to  maintain  an  action  already  commenced  was 
unlawful.  That  is  not  here  charged;  and  therefore  the  count  ought  to  show 
the  ingredients  which  make  the  instigation  to  a  suit  actionable.  The  plaintiff 
has  not  done  this;  for,  beyond  all  doubt,  the  absence  of  reasonable  or  probable 
cause  is  one  such  ingredient,  in  the  abeence  of  which  it  does  not  appear  that 
the  plaintiff  has  been  unlawfully  disturbed. 

Patteson,  J.  I  think  this  declaration  is  bad,  for  the  reason  abready  given. 
The  case  is  analogous  to  that  of  a  complaint  of  malicious  prosecution  or  arrest ; 
and  here,  as  there,  the  want  of  reasonable  or  probable  cause  ought  to  be 
alleged. 

every  successful  action  will  be  followed  by  another,  alleging  malice  in  the  prosecu- 
tion of  the  former;  and  second,  that  if  the  defendant  may  sue  for  damages  sus- 
tained by  an  unfoimded  prosecution,  the  plaintiff  may  equally  bring  an  action 
when  the  defendant  makes  a  groimdless  defence,  —  are  well  answered  in  the  article 
aheady  alluded  to  [Mr.  Lawson's  note,  21  A.  L.  Reg.  n.  s.  281,  353) :  '  To  the  first 
objection,  it  is  enough  to  say  that  the  action  will  never  lie  for  an  unsuccessful 
prosecution,  imless  begun  and  carried  on  with  malice  and  without  probable  cause. 
With  the  burden  of  this  difficult  proof  upon  him,  the  litigant  will  ne^  a  very 
clear  case  before  he  will  be  willing  to  begm  a  suit  of  this  character.  The  second 
argument  fails  to  distinguish  between  the  position  of  the  parties,  plaintiff  and 
defendant,  in  an  action  at  law.    The  plaintiff  sets  the  law  in  motion;  if  he  does  so 

Sroundlessly  and  maliciously  he  is  the  cause  of  the  defendant's  damiage.  But  the 
efendant  stands  only  on  his  legal  rights  —  the  plaintiff  having  taken  his  case  to 
court,  the  defendant  has  the  privilege  of  calling  upon  him  to  prove  it  to  the 
satisfaction  of  the  judge  or  jury,  and  he  is  guilty  of  no  wrong  in  exercising  this 
privilege.' " 

In  Doane  v.  Hescock,  165  N.  Y.  Supp.  210,  the  court  (Appellate  Term,  First  De- 
partment) says:  "  It  clearly  appc^ars  that  the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action  for  abuse  of  process,  nor  are  the  allegjations 
sufficient  to  support  an  action  for  malicious  prosecution  of  a  civil  action  m  this 
state.  There  is  no  allegation  that  the  action  resulted  in  damages  to  the  business  or 
reputation  of  the  defendant  or  that  in  any  way  his  personal  or  property  rights  were 
interfered  with.  The  sole  allegation  as  to  damage  is  the  trouble,  inconvenience, 
and  expense  of  defending  the  action.  This  is  not  sufficient.  Paul  v.  Fargo,  84  App. 
Div.  9,  11,  13  (dissenting  opinion,  21),  82  N.  Y.  Supp.  369;  Fulton  v.  Ingalls,  165 
App.  Div.  323,  326,  151  N.  Y.  Supp.  130." 

Afalicious  excessive  cUtachment.  Tamblyn  v.  Johnston,  (C.  C.  A.)  126  Fed.  267; 
MiUs  V.  Larrance,  217  lU.  446;  Savage  v.  Brewer,  16  Pick.  453;  Paul  v.  Fargo,  84 
App.  Div.  9;  Sommer  v.  Wilt,  4  S.  &  R.  19. 

^  The  averments  of  the  count  are  abridged  and  the  arguments  of  counsel  are 
omitted. 


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CHAP,  v.]  GRAINGEB  V.  HILL  653 

WiLUAMS,  J.  The  averments  in  this  declaration  might  be  sustained  by 
proof  that  the  defendant,  not  being  an  attorney,  had  held  a  conversation  with 
Thomas,  and  had  said,  "  If  your  story  is  correct,  you  might  sue  Flight."  No 
action  could  be  maintained  on  that,  unless  it  further  appeared  that  the  now 
defendant  knew  that  there  was  no  right  to  sue  the  now  plaintiff. 

Coleridge,  J.  It  is  not  asserted  here  that  the  suit  maintained  was  without 
reasonable  or  probable  cause:  there  are  only  general  words,  imputing  an  in- 
stigation and  a  stirring-up.  There  should  be  added  to  these,  in  strict  analogy 
with  actions  for  malicious  prosecution  or  arrest,  as  my  Brother  Patteson  has 
pointed  out,  an  averment  of  want  of  reasonable  or  probable  cause:  and  with- 
out such  averment  this  declaration  shows  no  right  of  action. 

JvdgmerUfor  d^endant} 


GRAINGER  v.  HILL 

In  the  Common  Pleas,  January  20, 1838. 

Reported  in  4  Bingham,  New  Cases,  212. 

TiNDAL,  C.  J.*  This  is  a  special  action  on  the  ease,  in  which  the 
plaintiff  declares  that  he  was  the  master  and  owner  of  a  vessel  which, 
in  September,  1836,  he  mortgaged  to  the  defendant  for  the  sum  of  £80, 
with  a  covenant  for  repayment  in  September,  1837,  and  under  a  stipu- 
lation that,  in  the  mean  time,  the  plaintiff  should  retain  the  oonmiand 
of  the  vessel,  and  prosecute  voyages  therein  for  his  own  profit;  that 
the  defendants,  in  order  to  compel  the  plaintiff  through  duress  to  give 
up  the  roister  of  the  vessel,  without  which  he  could  not  go  to  sea  be- 
fore the  money  lent  on  mortjgage  became  due,  threatened  to  arrest  him 
for  the  same  unless  he  immediately  paid  the  amoimt;  that,  upon  the 
plaintiff  refusing  to  pay  it,  the  defendants,  knowing  he  Could  not  pro- 
vide bail,  arrested  him  under  a  cajjias,  indorsed  to  levy  £95,  I7s.  6d., 
and  kept  him  imprisoned,  until,  by  duress,  he  was  compeUed  to  give 
up  the  register,  which  the  defendants  then  unlawfully  detained;  by 
means  whereof  the  plaintiff  lost  four  voyages  from  London  to  Caen. 
There  is  also  a  count  in  trover  for  the  register.  The  defendants 
pleaded  the  general  issue;  and,  after  a  verdict  for  the  plaintiff,  the 
case  comes  before  us  on  a  double  ground,  under  an  application  for  a 
nonsuit,  and  in  arrest  of  judgment. 

»  Fivaa  t;.  Nicholls,  2  C.  B.  501,  514  (semble);  Grove  v.  Brandenburg,  7  Blackf. 
2^  Accord. 

"  Pechell  V.  Watson  came  to  be  considered  in  Flight  v,  Leman.  Its  authority  was 
recognized,  but  the  latter  case  was  decided  against  the  plaintiff,  who  sued  for  main- 
tenance, on  the  groimd,  I  own  I  should  have  thought  the  narrow  groimd,  that  to  in- 
stigate a  suit  wfus  not  maintenance,  though  to  support  one  already  instituted  was." 
Per  Coleridge,  C.  J.,  in  Bradlaugh  t;.  Newdegate,  11  Q.  B.  Div.  1,  8. 

See  also  Alabaster  v.  Harness.  [1894]  2  Q.  B.  807,  [1895]  1  Q.  B.  339;  Grieg  v. 
National  Union,  22  T.  L.  Rep.  Z74;  Goodyear  Co.  v.  White,  2  N.  J.  Law  Joum. 
150, 10  Fed.  Cas.  752,  no.  5602:  Breeden  v.  Frankford  Ins.  Co.,  220  Mo.  327,  373, 
378-420,  424-443.  Compare  Metropolitan  Bank  v.  Pooley,  10  App.  Cas.  210, 
217-218. 

*  Only  the  opinion  of  the  Chief  Justice  upon  the  point  of  abuse  of  legal  process  is 
given. 


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654  GRAINGER  V.  HILL  [CHAP.  V. 

The  second  ground  lu'ged  for  a  nonsuit  is,  that  there  was  no  proof 
of  the  suit  commenced  by  the  defendants  having  been  terminated.  But 
the  anwser  to  this,  and  to  the  objection  lu'ged  in  arrest  of  judgment, 
namely,  the  omission  to  allege  want  of  reasonable  and  probable  cause 
for  the  defendants'  proceeding,  is  the  same,  —  that  this  is  an  action  for 
abusing  the  process  of  the  law,  by  applying  it  to  extort  property  from 
the  plaintiff,  and  not  an  action  for  a  malicious  arrest  or  malicious 
prosecution,  in  order  to  support  which  action  the  termination  of  the 
previous  proceeding  must  be  proved,  and  the  absence  of  reasonable 
and  probable  cause  be  alleged  as  well  as  proved.  In  the  case  of  a 
malicious  arrest,  the  sheriff  at  least  is  instructed  to  piumie  the  exigency 
of  the  writ;  here  the  directions  given,  to  compel  tiie  plaintiff  to  yield 
up  the  roister,  were  no  part  of  the  duty  enjoined  by  the  writ.  If 
the  course  pursued  by  the  d^endants  is  such  that  there  is  no  precedent 
of  a  similar  transaction,  the  plaintiff's  remedy  is  by  an  action  on  the 
case,  applicable  to  such  new  and  special  circumstances;  and  his  com- 
plaint being  that  the  process  of  the  law  has  been  abused,  to  effect  an 
object  not  within  the  scope  of  the  process,  it  is  immaterial  whether 
the  suit  which  that  process  commenced  has  been  determined  or  not, 
or  whether  or  not  it  was  founded  on  reasonable  and  probable  cause.^ 

»  Heywood  v,  Collinge,  9  A.  &  E.  268;  King  v.  Yarbray,  136  Ga.  212:  Wicker  v. 
Hotchkiss,  62  111.  107  (semUe);  Emery  v.  Ginnan,  24  111.  App.  65  (semble);  White- 
sell  V,  Studv,  37  Ind.  App.  429  (semble);  Page  v.  Gushing,  38  Me.  523;  Wood  v. 
Graves,  144  Mass.  365;  White  v.  Apsley  Co.,  181  Mass.  339;  White  v,  Apsley  Co.. 
194  Mass.  97;  Malone  v.  Belcher,  216  Mass.  209;  Pixley  v.  Reed,  26  Minn.  80 
Uemble);  Rossiter  v,  Minn.  Co.,  37  Minn.  296;  Bebinger  v.  Swee^6  Hun,  478; 
Buffalo  Co.  V.  Everest,  30  Hun,  586  (aemble) ;  Hasard  v.  fiardinff,  63  How.  Pr.  326; 
Prough  V.  Entriken,  11  Pa.  St.  81;  Mayer  v,  Walter,  64  Pa.  St.  283;  Lauzon  v. 
Charroux,  18  R.  I.  467  Accord. 

As  to  we  distinction  between  malicious  prosecution  and  abuse  of  process,  see 
Waters  v,  Winn,  142  Ga.  138;  Wright  v.  Hanis,  160  N.  C.  542;  Cooper  v.  Southern 
R.  Co^l65  N.  C.  578.  . 

In  Wood  V.  Graves,  144  Mass.  365,  Allen,  J.,  said,  p.  366:  "  There  is  no  doubt 
that  an  action  lies  for  the  malicious  abuse  of  lawful  process,  civil  or  criminal.  It  is 
to  be  assumed,  in  such  a  case,  that  the  process  was  lawfully  issued  for  a  just  cause, 
and  is  valid  in  form,  and  that  the  arrest  or  other  proceeding  upon  the  process  was 
justifiable  and  proper  in  its  inception.  Perhaps  the  most  frequent  form  of  such 
abuse  is  by  working  upon  the  fears  of  the  person  under  arrest  for  the  purpose  of 
extorting  monev  or  other  property,  or  of  compelling  him  to  si^  some  paper,  to 

S've  up  some  clBom,  or  to  do  some  other  act,  m  accordance  with  the  wisnes  of 
Lose  who  have  control  of  the  prosecution.  The  leading  case  upon  this  subject  is 
Grainger  t;.  Hill,  4  Bing.  N.  C.  212,  where  the  owner  of  a  vessel  was  arrested  on 
civil  process,  and  the  officer,  acting  under  the  directions  of  the  plaintiffs  in  the 
suit,  used  the  process  to  compel  the  defendant  therein  to  give  up  his  ship's  register, 
to  which  they  had  no  right.  He  was  held  entitled  to  recover  damages,  not  for 
maliciously  putting;  the  process  in  force,  but  for  maliciously  abusing  it,  to  effect  an 
object  not  within  its  proper  scope." 

In  Mayer  v,  Walter,  64  Pa.  St.  283,  Sharswood,  J.,  said :  "  There  is  a  distinction 
between  a  malicious  use  and  a  malicious  abuse  of  lespeJ  process.  An  abuse  is  where 
the  party  employ  it  for  some  unlawful  object,  not  the  purpose  which  it  is  intended 
by  the  law  to  effect;  in  other  words,  a  perversion  of  it.  Tnus,  if  a  man  is  arrested, 
or  his  goods  seized  m  order  to  extort  money  from  him,  even  uiough  it  be  to  pay  a 
just  claim  other  than  that  in  suit,  or  to  compel  him  to  give  up  possession  of  a  deed 
or  other  thine  of  value,  not  the  legal  object  of  the  process,  it  is  settled  that  in  an 
action  for  such  malicious  abuse  it  is  not  necessary  to  prove  that  the  action  in  which 


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CHAP,  v.]  BOND  V.  CHAPIN  655 

BOND  V.  CHAPIN 

Supreme  Judicial  Coubt,  Massachusetts,  SbptembeBi  1844. 

Reported  in  8  Metodf,  81. 

Hubbard,  J.^  In  the  present  suit,  which  is  an  action  on  the  case  against 
the  defendant  for  prosecuting  a  suit  in  the  name  of  Thomas  Bond  against  the 
plaintiff,  the  plaintiff  avers,  in  his  declaration,  (which  accompanies  the  excep- 
tions) that  the  defendant,  without  authority  from  said  Thomas,  and  having 
no  reasonable  ground  for  believing  that  anything  was  due  from  the  plaintiff 
to  him,  attached  the  plaintiff's  property,  and  prosecuted  said  suit  against 
him,  from  November  term,  1840,  to  November  term,  1841,  when  he  became 
nonsuit;  and  evidence  was  offered  tending  to  prove  these  allegations.  The 
instructions  to  the  jury  were,  that "  the  plaintiff  must  prove  the  former  action 
to  have  been  commenced  and  prosecuted  maliciously,  that  is  to  say,  with  some 
improper  motive,  or  without  due  care  to  ascertain  his  rights,  as  well  as  with- 
out authority,  and  without  probable  cause."  The  error  complained  of  may 
have  arisen  from  not  distinguishing,  during  the  trial,  between  an  action  on 
the  case  for  malicious  prosecution,  and  an  action  on  the  case  for  prosecuting 
a  suit  in  the  name  of  a  third  person,  without  authority,  by  reason  of  which 
the  defendant  sustains  injury. 

In  a  suit  for  mahcious  prosecution,  the  gist  of  the  action  is  malice;  but 
there  must  also  exist  the  want  of  probable  cause.  And  without  the  proof  of 
both  facts,  the  action  cannot  be  maintained,  though  the  existence  of  malice 
may  often  be  inferred  from  the  want  of  probable  cause.  But  in  an  action  on 
the  case  for  damages  for  prosecuting  a  suit  against  the  plaintiff  without 
authority,  in  the  name  of  a  third  person,  the  gist  of  the  action  is  not  a  want 
of  probable  cause,  —  for  there  may  be  a  good  cause  of  action,  —  but  for  the 
improper  hberty  of  using  the  name  of  another  person  in  prosecuting  a  suit, 
by  which  the  defendant  in  the  action  is  injured.  Nor  is  the  proof  of  malice 
essential  to  the  maintenance  of  such  action.  If  the  party  supposes  he  has 
authority  to  commence  a  suit,  when  in  fact  he  has  none,  and  the  nominal 
plaintiff  does  not  adopt  it,  the  action  fails  for  want  of  such  authority.    In 

the  process  issued  has  been  determined,  or  to  aver  that  it  was  sued  out  without  rea- 
sonable or  probable  cause:  Grainger  v.  Hill,  4  Bing.  N.  C.  212.  It  is  evident  that 
when  such  a  wrons  has  been  perpetrated,  it  is  entirely  immaterial  whether  the  pro- 
ceeding itself  was  baseless  or  otherwise.  We  know  that  the  law  is  good,  but  only  if 
a  man  use  it  lawfully. 

*'  On  the  other  hand,  legal  process,  civil  or  criminal,  may  be  maliciously  used  so 
as  to  give  rise  to  a  cause  ofaction  where  no  object  is  contemplated  to  be  gained  by 
it  other  than  its  proper  effect  and  execution.  As  every  man  has  a  legal  power  to 
prosecute  his  claims  in  a  court  of  law  and  justice,  no  matter  by  what  motives  of 
malice  he  may  be  actuated  in  doing  so,  it  is  necessary  in  this  class  of  cases  to  aver 
and  prove  that  he  has  acted  not  omv  maliciously,  but  without  reasonable  or  prob- 
able cause.  It  is  dearly  settled  also,  that  the  proceeding  must  be  determined 
finally  before  any  action  lies  for  the  injury;  because,  as  it  is  said  in  Arundell  v. 
Treffono,  Yelv.  117,  the  plaintiff  will  clear  himself  too  soon,  viz.,  before  the  fact 
tried,  which  will  be  inconvenient;  besides,  the  two  determinations  might  be  con- 
tnury  and  inconsistent." 

To  proceed  unfairly  and  oppressively  but  without  seeking  to  compel  another  to 
do  what  he  is  not  obliged  to  ao,  e.  ^.,  to  enter  up  judgment  on  a  note  after  10  p.  m. 
and  to  bringinmiCKliate  execution,  is  not  a  groimd  of  action  according  to  Docter  v. 
Riedel,  96  Wis.  158.    But  see  dissenting  opinion  of  Marshall,  J. 

^  Cily  the  opinion  of  the  court  is  given. 


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656  BOND  V.  CHAPIN  [CHAP.  V. 

such  case,  though  the  party  supposed  he  had  authority,  and  acted  upon  that 
supposition,  without  malice,  still  if  the  defendant  suffers  injury  by  reason  of 
the  prosecution  of  the  unauthorized  suit  against  him,  he  may  maintain  an 
action  for  the  actual  damages  sustained  by  him,  in  the  loss  of  time,  and  for 
money  paid  to  procure  the  discontinuance  of  the  suit,  but  nothing  more. 
Where,  however,  in  addition  to  a  want  of  authority,  the  suit  commenced  was 
altogether  groundless,  and  was  prosecuted  with  malicious  motives  —  which 
may  be  inferred  from  there  existing  no  right  of  action,  as  well  as  proved  in 
other  ways  —  then,  in  addition  to  the  actual  loss  of  time  and  money,  the  party 
may  recover  damages  for  the  injury  inflicted  on  his  feelings  and  reputation. 
In  this  case,  the  learned  judge  having  instructed  the  jury  that  a  want  of 
probable  cause  and  malice  must  concur  with  the  want  of  authority  to  com- 
mence the  suit  in  the  name  of  a  third  person,  to  enable  the  plaintiff  to  main- 
tain the  action,  we  think  there  was  error  in  the  instruction,  and  that  though 
the  damages  might  be  enhanced  by  showing  malice  and  a  want  of  probable 
cause,  yet  that  the  proof  of  them  is  not  essential  to  the  maintenance  of  the 
action.  New  trial  granted} 

1  Y.  B-  7  Hen.  VI.  43;  1  Roll.  Ab.  101,  pi.  1,  s.  c;  Holliday  v.  Sterling,  62  Mo. 
Z2l  Accord. 


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CHAPTER  VI 
DEFAMATION 

CLUTTERBUCK  v.  CHAFFERS 

At  Nisi  Prius,  coram  Lord  Ellbnborouqh,  C.  J., 

December  14,  1816. 

Reported  in  1  Starkie,  471. 

This  was  an  action  for  the  publication  of  a  libel. 

The  witness  who  was  called  to  prove  the  pubUcation  of  the  libel 
(which  was  contained  in  a  letter  written  by  the  defendant  to  the 
plaintiff)  stated  on  cross-examination  that  the  letter  had  been  deliv- 
ered to  him  folded  up,  but  unsealed,  and  that  without  reading  it,  or 
allowing  any  other  person  to  read  it,  he  had  dehvered  it  to  the  plain- 
tiff himself,  as  he  had  been  directed. 

Lord  Eu/ENborouqh  held  that  this  did  not  amount  to  a  pubUcation 
which  would  support  an  action,  although  it  would  have  sustained  an 
indictment,^  since  a  pubUcation  to  the  party  himself  tends  to  a  breach 
of  the  peace.  Verdict  for  the  defendant} 

*  Edwards  v.  Wooton,  12  Rep.  35;  Peacock  v.  RayneU,  2  Brownl.  151 :  Barrow 
r.  Lewellin,  Hob.  152;  Hick's  Case,  Hob.  376;  Rex  v,  Burdett,  4  B.  A  Aid.  95 
Accord. 

«  Phillips  ».  Jansen,  2  Esp.  624;  Ward  v.  Smith,  4  Car.  &  P.  302;  Sharp  v, 
Skues,  (C.  A.)  25  T.  L.  Rep.  336:  Wamock  v,  Mitchell,  43  Fed.  428;  Western 
Co.  V.  Cashman,  149  Fed.  367;  Spaits  v,  Poundstone,  87  Ind.  522;  Yousling  v. 
Dare,  122  la.  539;  Lyon  v.  Lash,  74  Kan.  745;  Buckwalter  v.  Gossow,  75  Kan. 
147:  Mcintosh  v.  Matherly.  9  B.  Mon.  119;  Roberts  v.  English  Co.,  155  Ala.  414; 
Dickinson  v.  Hathaway,  122  La.  644;  Gambrill  v.  Schooley,  93  Md.  48;  Riimney 
V.  Worthley,  186  Mass.  144, 146;  Youmans  v.  Smith,  153  N.  Y.  214,  218;  Lyle  v, 
Clason,  1  Caines,  581;  Waistel  v.  Hohnan,  2  Hall,  172;  Prescott  v.  Tousey,  50 
N.  Y.  Super.  Ct.  12;  Shepard  v.  Laniphier,  84  Misc.  498;  FonviUe  v.  McNease, 
Dudley,  303;  State  v.  Syphrett,  27  S.  C.  29;  Fry  v.  McCord,  95  Tenn.  678;  Sylvis 
V,  Miller,  96  Tenn.  94;  Wilcox  v.  Moon,  63  Vt.  481;  WUcox  v.  Moon,  64  Vt.  450 
Accord. 

See  Ahem  v.  Maguire,  A.  M.  &  O.  39. 

If  two  persons  combine  in  sending  a  libel  to  the  plaintiff,  each  is  guilty  of  a 
publication  to  the  other.    Spaits  v.  Poundstone,  87  Ind.  522,  524,  525. 

In  Virginia,  by  statute,  an  action  lies  for  insulting  words  written  or  spoken, 
although  not  read  or  heard  by  a  third  person.  Holland  v.  Batchelder,  84  Va.  664; 
Strode  v.  Clement,  90  Va.  553. 


667 


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668  SNYDER  V.  ANDREWS  [CHAP.  VI. 

SNYDER  t;.  ANDREWS 

Supreme  Court,  New  York,  March  5, 1849. 

Reported  in  Q  BarbovTf  43* 

This  was  an  action  on  the  case  for  a  libel.  The  defendant  pleaded 
the  general  issue,  and  gave  notice  of  special  matter.^ 

The  cause  was  tried  at  the  Saratoga  circuit  in  November,  1847, 
before  Justice  Paige.  *  On  the  trial  the  defendant  admitted  that  he 
wrote  the  letter  containing  the  alleged  Ubel,  sealed  the  same,  and  put 
it  into  the  post-office  at  Saratoga  Springs,  directed  to  the  plaintiff  at 
his  residence.  The  plaintiff  proved  by  John  R.  Brown  that  the  letter 
was  read  to  the  witness  by  the  defendant  at  his  office  in  the  presence 
of  a  yoimg  man  who  was  a  clerk  of  the  defendant.  The  defendant's 
counsel  then  moved  for  a  nonsuit,  on  the  ground  that  a  publication  of 
the  libel  had  not  been  proved.    The  judge  denied  the  motion. 

The  jury  found  a  veniict  for  the  plaintiff  of  $250.  And  the  defend- 
ant, upon  a  bill  of  exceptions,  moved  for  a  new  trial. 

Willard,  J.  The  fact  that  the  defendant  read  the  letter  to  a 
stranger,  before  it  was  sent  to  the  plaintiff,  was  not  questioned  on 
the  trial,  and  is  assumed  to  be  true  by  the  form  of  the  objection;  but 
it  is  insisted  that  such  reading  did  not  amount  to  a  publication  of  the 
libel.  No  man  incurs  any  civil  responsibility  by  what  he  thinks  or 
even  writes,  unless  he  divulges  his  thoughts  to  the  temporal  prejudice 
of  another.  Hence,  a  sealed  letter  containing  Ubellous  matter,  if 
communicated  to  no  one  but  to  the  party  libelled,  is  not  the  founda- 
tion for  a  civil  action,  although  it  may  be  of  an  indictment.  Lyle  v. 
Clason,  1  Caines,  581;  Hodges  v.  The  State,  5  Humphrey,  112;  1 
Wms.  Saund.  132,  n.  2;  Phillips  v.  Jansen,  2  Esp.  626;  2  Starkie  on 
Slander  (Wend,  ed.),  14.  But  where  the  defendant,  knowing  that 
letters  addressed  to  the  plaintiff  were  usually  opened  by  and  read  by 
his  clerk,  wrote  a  Ubellous  letter  and  directed  it  to  the  plaintiff  and 
his  clerk  received  and  read  it,  it  was  held  there  was  a  sufficient  publica- 
tion to  support  the  action.  Delacroix  v.  Thevenot,  2  Stark.  63.  And 
in  Schenck  v.  Schencic,  1  Spencer,  208,  a  sealed  letter  addressed  and 
delivered  to  the  wife  containing  a  libel  on  her  husband  was  held  a 
publication  sufficient  to  enable  the  latter  to  sustain  an  action.'  Read- 
ing or  singing  the  contents  of  a  libel  in  the  presence  of  others  has  been 

^  Part  of  the  case,  not  relating  to  publication,  is  omitted. 

«  Wenman  v.  Ash.  13  C.  B.  836;  Jones  v,  Wilhams,  1  T.  L.  Rep.  572;  Sealer  v. 
Montgomery,  78  Cal.  486,  489  (semble);  Luick  v.  DriscoU,  13  Ind.  App.  279;  Wil- 
cox V.  Moon,  63  Vt.  481;  Wilcox  v.  Mqpn,  64  Vt.  450  Accord. 

But  a  communication  by  the  libeller  to  his  own  wife  is  said  not  to  be  a  publica- 
tion. Wennhak  u.  Morgan,  20  Q.  B.  D.  635;  Sesler  v.  Montgomery,  78  Cal.  486; 
Trumbull  v.  Gibbons,  3  City  H.  Rec.  97.  But  see  State  v.  Shoemaiker,  101  N.  C. 
690.  See  also  Central  R.  Co.  v.  Jones,  18  Ga.  App.  414  (dictation  by  officer  of 
corporation  to  co-employee);  Kirschenbaum  v.  Kaufman  (N.  Y.  City  Ct.),  60 
N.  Y.  Law  Joum.  406  (defamatory  matter  uttered  to  business  partner  in  course  of 


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CHAP.  VI.]        SHBFPILL  V.  VAN  DBUSEN  659 

adjudged  a  publication.  2  Starkie  on  Slander,  16;  5  Rep.  125;  9  Id. 
59  b;  1  Saund.  132,  n.  2.  The  reading  of  the  letter  in  question  by 
the  defendant  in  the  preeenoe  of  Brown  was  a  sufficient  publication  to 
sustain  this  action.  New  trial  denied.^ 


DELACROIX  V.  THEVENOT 

At  Nisi  Pbius,  coium  Lobd  Ellenbobouqh,  C.  J.,  Mabch  4, 1817. 

Reported  in  2  SUxrkie,  63. 

This  was  an  action  for  a  libel  and  slanderous  words.  The  libel 
was  contained  in  a  letter  directed  to  plaintiff. 

A  clerk  of  the  plaintiff  proved  that  he  had  received  the  letter;  that 
it  was  in  the  handwriting  of  the  defendant;  and  that  in  the  absence 
of  the  plaintiff  he  was  in  the  habit  of  opening  letters  directed  to  him 
which  were  not  marked  "  private."  He  further  stated  that  defendant, 
who  was  weU  acquainted  with  the  plaintiff,  was  aware  of  the  nature 
of  his  (the  clerk!s)  emplo3nnent,  and  that  he  beUeved  defendant  knew 
that  witness  was  in  the  habit  of  opening  plaintiff's  letters. 

Lobd  E^llbnborough  said  that  there  was  sufficient  evidence  for  the  ; 
jury  to  consider  whether  defendant  did  not  intend  the  letter  to  come 
to  the  hands  of  a  third  person,  which  would  be  a  publication. 

Verdict  for  pUUntijf,    Damages^  £100.* 


SHEFFILL  V.  VAN  DEUSEN 

SxTPRBBiB  Judicial  Coubt,  MAssACHUssTrs,  Sbftbmbbb  TbbMi  1859. 

Reported  in  13  Gray,  304. 

AcnoN  of  tort  for  slander. 

BiGBLOw,  J.*  Proof  of  the  pubUcation  of  the  defamatory  words 
allied  in  tiie  declaration  was  essential  to  the  maintenance  of  this 
action.  Slander  consists  in  uttering  words  to  the  injury  of  a  person's 
reputation.    No  such  injury  is  done  when  the  words  are  uttered  only 

business).  It  would  be  more  accurate  to  say  that  the  communication  in  such  cases 
is  privileged.  In  Powell  v.  Gelston,  [1916]  2  K.  B.  615,  a  libellous  letter,  privileged 
as  a  conmiunication  to  A.  was  sent  to  B,  who  asked  for  the  information  m  his  own 
name  at  A's  request.    Tne  letter  was  opened  and  read  by  A  only. 

1  M'Coombs  V,  Tuttle,  6  Blackf .  431 ;  Van  Cleef  v.  Lawrence,  2  aty  H.  Rec.  41 
Accord. 

*  Wyatt  V.  Gore,  Holt,  299;  Wenman  v.  Ash,  13  C.  B.  836:  Kiene  v.  Ruff.  1  la. 
482;  Alien  v.  Wortham,  89  Ky.  486;  Rumney  v.  Worthley,  186  Mass.  144:  Schenck 
V,  Schenck,  Spencer,  208;  State  v.  Mclntire,  116  N.  C.  769;  Wilcox  t^.  Moon,  64 
Vt.  640:  Adams  v.  Lawson,  17  Gratt.  250  Accord. 

See  Fox  v.  Broderick,  14  Ir.  C.  L.  R.  453;  Callan  v.  GaylonL  3  Watte,  321. 

Slanderous  statements  to  plainiiff  in  presence  of  kis  counsetf  Massee  v.  Williams, 
207  Fed.  222. 

Sending  libelous  letter  to  plaintiff's  attorney^  Brown  v,  Ehn  City  Lumber  Co., 
167  N.  C.  9. 

'  Only  the  opinion  of  the  court  is  given. 


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660  8HEFFILL  V.  VAN  DEU8BN  [CHAP.  VI. 

to  the  person  concerning  whom  they  are  spoken,  no  one  else  being 
present  or  within  hearing.  It  is  damage  done  to  character  in  the 
opinion  of  other  men,  and  not  in  a  party's  self-estimation,  which  con- 
stitutes the  material  ele  nent  in  an  action  for  verbal  slander.  Even  in 
a  civil  action  for  libel,  evidence  that  the  defendant  wrote  and  sent  a 
sealed  letter  to  the  plaintiff,  containing  defamatory  matter,  was  held 
insufficient  proof  of  publication;  although  it  would  be  otherwise  in  an 
indictment  for  libel,  because  such  writings  tend  directly  to  a  breach  of 
the  peace.  So,  too,  it  must  be  shown  that  the  words  were  spoken  in 
the  presence  of  some  one  who  imderstood  them.  If  spoken  in  a  for- 
eign language,  which  no  one  present  imderstood,  no  action  will  lie 
therefor.^  Edwards  v.  Wooton,  12  Co.  35;  Hick's  Case,  Pop.  139, 
Hob.  215;  Wheeler  &  Appleton's  Case,  Godb.  340;  Phillips  v.  Jan- 
sen,  2  Esp.  624;  Lyle  v.  Clason,  1  Caines,  581;  Hammond  N.  P.  287. 
It  is  quite  immaterial  in  the  present  case  that  the  words  were  spoken 
in  a  public  place.  The  real  question  for  the  jury  was,  were  they  so 
spoken  as  to  have  been  heard  by  third  persons  ?  The  defendants  were 
ijierefore  entitled  to  the  instructions  for  which  they  asked. 

Exceptions  sustained.* 

1  Jones  V.  Davers,  Cro.  Elix.  496:  Price  v,  Jenkings,  Cro.  Elii.  865;  Amann  v, 
Damm,  8  G.  B.  n.  s.  597;  Kiene  v.  Ruff,  1  la.  42;  Hurtert  t;.  Weines,  27  la.  134; 
Mielenx  v.  Quasdorf,  68  la.  726:  Economopoiilos  v,  A.  G.  Pollard  Go.,  218  Mass. 
294;  Wonnouth  v,  Cramer,  3  Wend.  394  Accord. 

See  Bechtell  v,  Shatler.  Wright,  (Ohio)  107.  Gonf .  Anon.,  Moore,  182:  Gibs  v, 
Jenkmsj  Hob.  335;  Zenobio  v,  Axtell,  6  T.  R.  162;  Jenkins  t;.  Phillips,  9  Gar.  &  P. 
766;  Hickley  v.  Grosjean,  6  Blackf.  351;  Keenholts  v.  Becker,  3  Den.  346;  Ra- 
hauser  v,  Barth,  3  Watts,  28;  Zeig  v.  Ort,  3  Ghandl.  26;  K.  v,  H.,  20  Wis.  239; 
Filber  v.  Dautermann,  26  Wis.  518;  Simonsen  v.  Herald  Go.,  61  Wis.  626;  Pelxer 
V,  Benishy,  67  Wis.  291. 

«  Anon.,  Sty.  70:  Force  v.  Warren,  15  G.  B.  n.  s.  806;  Desmond  v.  Brown,  33 
la.  13;  Marble  v.  Ghapin,  132  Mass.  225, 226:  Gameron  v.  Gameron,  162  Mo.  App. 
110;  Traylor  v.  White,  185  Mo.  App.  326;  Broderick  r.  James,  3  Daly,  481 
Accord, 

Mailing  of  post  card.  Three  views  have  been  expressed  as  to  whether  the  mail- 
ing of  a  post  card  is  a  publication. 

(1)  The  mailing  is  a  publication.  Sadgrove  t;.  Hole,  [1901]  2  K.  B.  1, 4, 5  (semble) ; 
Logan  V,  Hodges,  146  N.  G.  38;  Spence  v.  Burt,  18  Lane.  L.  Rev.  251;  Robinson 
t;.  Jones,  L.  R.  4  Ir.  391  {semble);  McGann  v.  Edmburgh  Go.,  L.  R.  28  Ir.  24,  28 
per  Palles,  G.  B. 

(2)  The  mailing  b  prima  facte  a  publication.  Odgers,  Libel  and  Slander  (4 
ed.),  153.281. 

(3)  The  mailing  is  prima  fade  not  a  publication,  i.  e.,  is  not  a  publication  unless 
evidence  is  given  that  the  post  card  was  read  in  traneitu,  Steele  t;.  Edwards,  15 
Ohio  Gir.  Gt.  52,  58. 

Publication  in  ignorance  of  the  Itbel.  The  dissemination  of  a  libel  by  a  carrier 
or  newsvender  or  a  public  library,  who  neither  knew  nor  ought  to  have  known  of 
the  libel  and  who  had  no  reason  to  suppose  that  the  newspaper  was  likely  to  con- 
tain libellous  matters,  gives  no  cause  of  action.  Enmiens  v.  Pottle,  16  Q.  B.  D. 
354;  Martin  v.  Trustees  of  British  Museum,  10  T.  L.  Rep.  338.  But  the  proprietor 
of  a  circulating  library  was  held  liable  for  giving  out  a  book  containing  defamatory 
statements,  because  his  freedom  from  negligence  did  not  appear.  Vizetelly  v, 
Mudie's  Library,  [1900]  2  Q.  B.  170.  See  also  Morris  v.  Ritchie,  Gourt  of  ^ess., 
March  12,  1902,  4  F.  645. 


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CHAP.  VI.]  HANKINSON  V.  BILBY  661 

HANKINSON  v.  BILBY 
In  the  Exchequer,  Januaby  28, 1847. 

Reported  in  16  Meeson  &  WeUby,  442. 

Case.  The  declaration  stated  that  the  defendant,  in  the  presence 
and  hearing  of  divers  subjects,  falsely  and  maUciously  charged  the 
plaintiff, a  gardener,  with  being  a  thief.  Plea:  Not  guilty.  At  the  trial, 
before  Rolfe,  B.,  it  appeared  that  the  words  were  uttered  by  the 
defendant,  a  toll  collector,  to  the  plaintiff,  as  he  passed  the  Kingsland 
turnpike-gate,  in  the  presence  of  several  persons  as  well  as  the  witness. 
The  nature  of  the  previous  conversation  between  the  plaintiff  and  de- 
fendant did  not  appear.  iTie  learned  Baron  told  the  jury  that  it  was 
immaterial  whether  the  defendant  intended  to  convey  a  charge  of 
felony  against  the  plaintiff  by  the  words  used,  the  question  being, 
whether  the  bystanders  would  imderstand  that  charge  to  be  conveyed 
by  them.    Verdict  for  the  plaintiff  for  £5. 

Humfrey  now  moved  for  a  new  trial,  on  the  ground  of  misdirection.' 

Alderson,  B.  In  this  case,  had  there  been  no  by-standers  who 
could  imderstand  the  words  as  imputing  felony,  or  who  knew  all  about 
the  affair  respecting  which  they  were  uttered,  the  judge's  direction 
would  have  been  wrong,  for  it  would  then  be  damnum  absque  injuria, 
the  injuria  being  the  having  no  lawful  occasion  to  impute  felony. 

Parke,  B.  The  witness  appears  to  have  been  well  acquainted  with 
the  affair  to  which  the  words  related.  If  the  by-standers  were  equally 
cognizant  of  it,  the  defendant  would  have  been  entitled  to  a  verdict; 
but  here  the  only  question  is,  whether  the  private  intention  of  a  man 
who  utters  injurious  words  is  material,  if  by-standers  may  fairly 
understand  them  in  a  sense  and  manner  injurious  to  the  party  to 
whom  they  relate,  e.  g.,  that  he  was  a  felon. 

Some  doubt  being  suggested  as  to  the  facts  proved,  the  court  con- 
ferred with  Rolfe,  B.;  and  the  next  day, 

Pollock,  C.  B.,  said.  We  find  from  my  Brother  Rolfe  that  there 
were  several  by-standers  who  not  only  mi^t  but  must  have  heard  the 
expressions  which  form  the  subject  of  this  action.  That  disposes  of 
the  case  as  to  the  matter  of  law.  Words  uttered  must  be  construed 
in  the  sense  which  hearers  of  common  and  reasonable  understanding 
would  ascribe  to  them,  even  though  particular  individuals  better  in- 
formed on  the  matter  alluded  to  might  form  a  different  judgment 
on  the  subject.  Rule  refused? 

^  The  case  has  been  much  abridged. 

»  Phillips  V.  Bradshaw,  167  Ala.  199:  Allen  v.  Fincher,  187  Ala.  599;  Pouchan 
V,  Godeau,  167  Cal.  692;  United  Mine  Workers  v,  Cromer,  159  Ky.  605;  Tawney 
V,  SimonsoiL  109  Minn.  341;  Sweaas  v,  Evenson,  110  Minn.  304*  Vanloon  v.  Van- 
loon,  159  Mo.  App.  255;  Jones  v.  Banner.  172  Mo.  App.  132;  Bigley  v.  National 
Fidelity  Co.,  94  Neb.  813;  Phillips  v.  Barber,  7  Wend.  439;  Church  v.  New  York 
Tribune  Ass'n,  135  App.  Div.  30;  Rossiter  r.  New  York  Press  Co.,  141  App.  Div. 


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662  BROMAGE  V.  PROSSER  [CHAP.  YI. 

BROMAGE  V.  PROSSER 

In  the  Emo's  Bench,  Easter  Term,  1825. 

Reported  in  4  BamewaU  &  Creaswell,  247. 

Bayley,  J.,  now  delivered  the  judgment  of  the  court.*  This  was  an 
action  for  slander.  The  plaintiffs  were  bankers  at  Monmouth,  and  the 
charge  was,  that  in  answer  to  a  question  from  one  Lewis  Watkins, 
whether  he,  the  defendapt,  had  said  that  the  plaintiff's  bank  had 
stopped,  the  defendant's  answer  was,  "  It  was  true,  he  had  been  told 
so."  The  evidence  was,  that  Watkins  met  defendant  and  said,  "I  hear 
that  you  say  the  bank  of  Bromage  and  Snead,  at  Monmouth,  has 
stopped.  Is  it  true  ?  "  Defendant  said,  "  Yes,  it  is;  I  was  told  so." 
He  added,  "  It  was  so  reported  at  Crickhowell,  and  nobody  would  take 
their  bills,  and  that  he  had  come  to  town  in  consequence  of  it  himself." 
Watkins  said,  "  You  had  better  take  care  what  you  say;  you  first 
brought  the  news  to  town,  and  told  Mr.  John  Thomas  of  it."  Defend- 
ant repeated,  "  I  was  told  so."  Defendant  had  been  told,  at  Crick- 
howell, there  was  a  run  upon  plaintiff's  bank,  but  not  that  it  had 
stopped,  or  that  nobody  would  take  their  bills,  and  what  he  said  went 
greatly  beyond  what  he  had  heard.  The  learned  judge  considered  the 
words  as  proved,  and  he  does  not  appear  to  have  treated  it  as  a  case 
of  privil^ed  communication;  but  as  the  defendant  did  not  appear 
to  be  actuated  by  any  ill  will  against  the  plaintiffs,  he  told  the  jury 
that  if  they  thought  the  words  were  not  spoken  maliciously,  though 
they  might  unfortunately  have  produced  injury  to  the  plaintiffs,  the 
defendant  ought  to  have  their  verdict;  but  if  they  tliou^t  tiiem 
spoken  maliciously,  they  should  find  for  the  plaintiff:  and  the  jury 
having  found  for  the  defendant,  the  question  upon  a  motion  for  a  new 
trial  was  upon  the  propriety  of  this  direction.  If  in  an  ordinary  case 
of  slander  (not  a  case  of  privileged  communication),  want  of  malice 

339;  Spencer  v,  Minnick,  41  Okl.  613;  McGeaiy  v.  Leader  Pub.  Co.,  52  Pa.  Super. 
Ct.  35;  Lehmann  ».  Medack,  (Tex.  Civ.  App.)  162  S.  W.  438  Accord.  Compare 
MarahaU  v.  Chicago  Herald  Co.,  185  HI.  App.  224;  Willfred  Coal  Co.  v.  Sapp,  193 
m.  App.  400:  Sweet  v.  Poet  Pub.  Co.,  215  Mass.  450;  Corr  w.  Sun  Printing  ^Pub. 
Ass'n.  177  N.  Y.  131.    But  see  M.  v.  J.,  164  Wis.  39. 

A  lunatic  is  liable  for  torts  generall}^  and  also  for  a  libel.  Mordaunt  v.  Mor- 
daunt,  39  L.  J.  Pr.  &  M.  57,  59.  But  it  is  another  illustration  of  the  rule  of  the 
principal  case  that  defamatory  words  spoken  by  a  lunatic  whose  insanity  was  ob- 
vious or  known  to  all  the  hearers,  are  not  actionable.  Yeates  v.  Reed,  4  Blackf. 
463;  Irvine  v.  Gibson,  117  Ky.  306;  Dickinson  v.  Barber,  9  Mass.  225,  227;  Bry- 
ant v.  Jackson,  6  Humph.  199.  So  also  of  words  spoken  and  understood  as  a  Jest. 
Donoghue  v,  Hayes,  Hayes,  265.  Drunkenness  is  no  defence.  Kendrick  v,  Hop- 
kins, Cary,  133;  Gates  v.  Meredith,  7  Ind.  440. 

The  old  rule  of  construing  defamatory  statements  in  mUion  sensu  was  long  ago 
exploded.    See  Odgers,  Libel  &  Slander  (5  ed.),  111-113. 

Explanation  of  words  by  context^  see  Deitchman  v.  Bowles,  166  Ky.  285;  Mc- 
Curda  v.  Lewiston  Journal  Co.,  109  Me.  53;  Wing  v.  Wing,  6i6  Me.  62;  Larsen  t^. 
Brooklyn  Eagle,  165  App.  Div.  4;  Guenther  v.  RidgwayCq^  170  App.  Div.  725; 
Eddy  V,  Cimnin^ham,  69  Wash.  544;  Leuch  v.  Berger,  161  Wis.  564. 

^  Only  the  opmion  of  the  court  is  given. 


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CHAP.  VI.]  BROMAGE  V.  PROSSER  663 

is  a  question  of  fact  for  the  consideration  of  a  jury,  the  direction  was 
right;  but  if  in  such  a  case  the  law  implies  such  malice  as  is  necessary 
to  maintain  the  action,  it  is  the  duty  of  the  judge  to  withdraw  the 
question  of  malice  from  the  consideration  of  the  jiuy :  and  it  appears 
to  us  that  the  direction  in  this  case  was  wrong.  That  malice,  in  some 
sense,  is  the  gist  of  the  action,  and  that  therefore  the  manner  and 
occasion  of  speaking  the  words  is  admissible  in  evidence  to  show  they 
were  not  spoken  with  malice,  is  said  to  have  been  agreed  (either  by  all 
the  judges,  or  at  least  by  the  four  who  thought  the  truth  might  be 
given  in  evidence  on  the  general  issue)  in  Smith  v.  Richardson,  Willes, 
24;  and  it  is  laid  down  in  1  Com.  Dig.  action  upon  the  case  for  defama^ 
tion,  G  5,  that  the  declaration  must  show  a  malicious  intent  in  the 
defendant,  and  there  are  some  other  very  useful  elementary  books  in 
which  it  is  said  that  malice  is  the  gist  of  the  action,  but  in  what  sense 
the  words  malice  or  malicious  intent  are  here  to  be  understood, 
whether  in  the  popular  sense,  or  in  the  sense  the  law  puts  upon  those 
expressions,  none  of  these  authorities  state.  Malice  in  common  ac- 
ceptation means  ill-will  against  a  person,  but  in  its  legal  sense  it  means 
a  wrongful  act,  done  intentionally,  without  just  cause  or  excuse.  If 
I  give  a  perfect  stranger  a  blow  likely  to  produce  death,  I  do  it  of 
malice,  because  I  do  it  intentionally  and  wi^out  just  cause  or  excuse. 
If  I  maim  cattle,  without  knowing  whose  they  are;  if  I  poison  a 
fishery,  without  knowing  the  owner,  I  do  it  of  malice,  because  it  is  a 
wrongful  act,  and  done  intentionally.  If  I  am  arraigned  of  felony, 
and  wilfully  stand  mute,  I  am  said  to  do  it  of  malice,  because  it  is 
intentional  and  without  just  cause  or  excuse.  Russell  on  Crimes,  614, 
N.  1.  And  if  I  traduce  a  man,  whether  I  know  him  or  not,  and 
whether  I  intend  to  do  him  an  injury  or  not,  I  apprehend  the  law 
considers  it  as  done  of  mahce,  because  it  is  wrongful  and  intentional. 
It  equaUy  works  an  injury,  whether  I  meant  to  produce  an  injury  or 
not,  and  if  I  had  no  legal  excuse  for  the  slander,  why  is  he  not  to 
have  a  remedy  against  me  for  the  injiuy  it  produces  ?  And  I  appre- 
hend the  law  recognizes  the  distinction  between  these  two  descrip- 
tions of  malice,  malice  in  fact  and  malice  in  law,  in  actions  of  slander. 
In  an  ordinary  action  for  words,  it  is  sufficient  to  charge  that  the  de- 
fendant spoke  than  falsely,  it  is  not  necessary  to  state  that  they  were 
spoken  maliciously.  This  is  so  laid  down  in  Style,  392,  and  was  ad- 
judged upon  error  in  Mercer  t;.  Sparks,  Owen,  61;  Noy,  36.  The 
objection  there  was,  that  the  words  were  not  charged  to  have  been 
spoken  maliciously,  but  the  court  answered,  that  the  words  were  them- 
selves malicious  and  slanderous,  and,  therefore,  the  judgment  was 
affirmed.  But  in  actions  for  such  slander  as  is  prima  facie  excusable 
on  account  of  the  cause  of  speaking  or  writing  it,  as  in  the  case  of 
servant's  characters,  confidential  advice,  or  communications  to  per- 
sons who  ask  it,  or  have  a  right  to  expect  it,  maUce  in  fact  must  be 
proved  by  the  plaintiff,  and  in  Edmonson  v.  Stevenson,  1  Term  Rep. 


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664  BROMAGE  V.  PROSSER  XCHAP.  VI. 

110,  Lord  Mansfield  takes  the  distinction  between  these  and  ordinary 
actions  of  slander.  In  Weatherstone  v.  Hawkins,  Bull.  N.  P.  8,  where 
a  master  who  had  given  a  servant  a  character,  which  prevented  his 
being  hired,  gave  his  brother-in-law,  who  applied  to  him  upon  the  sub- 
ject, a  detail  by  letter  of  certain  instances  in  which  the  servant  had 
defrauded  him;  Wood,  who  argued  for  the  plaintiif,  insisted  that  this 
case  did  not  differ  from  the  case  of  common  Ubels,  that  it  had  the  two 
essential  ingredients,  slander  and  falsehood;  that  it  was  not  necessary 
to  prove  express  malice;  if  the  matter  is  slanderous,  maUce  is  implied, 
it  is  suflBcient  to  prove  publication;  the  motives  of  the  party  publish- 
ing are  never  gone  into,  and  that  the  same  doctrine  held  in  actions  for 
words,  no  express  malice  need  be  proved.  Lord  Mansfield  said  the 
general  rules  are  laid  down  as  Mr.  Wood  has  stated,  but  to  every  libel 
there  may  be  an  implied  justification  from  the  occasion.  So  as  to  the 
words,  instead  of  the  plaintiff's  showing  it  to  be  false  and  mahcious, 
it  appears  to  be  incidental  to  the  application  by  the  intended  master 
for  the  character;  and  Buller,  J.,  said,  this  is  an  exception  to  the  gen- 
eral rule,  on  account  of  the  occasion  of  writing.  In  actions  of  this 
kind,  the  plaintiff  must  prove  the  words  "  malicious  "  as  well  as  false. 
Buller,  J.,  repeats  in  Pasley  v.  Freeman,  3  T.  R.  61,  that  for  words 
spoken  confidentially  upon  advice  asked,  no  action  lies,  unless  express 
malice  can  be  proved.  So  in  Hargrave  v.  Le  Breton,  3  Burr.  2425, 
Lord  Mansfield  states  that  no  action  can  be  maintained  against  a 
master  for  the  character  he  gives  a  servant,  imless  there  are  extraor- 
dinary circumstances  of  express  malice.  But  in  an  ordinary  action 
for  a  libel  or  for  words,  though  evidence  of  malice  may  be  given  to 
increase  the  damages,  it  never  is  considered  as  essential,  nor  is  there 
any  instance  of  a  verdict  for  a  defendant  on  the  ground  of  want  of 
malice.  Numberless  occasions  must  have  occurred  (particularly  in 
cases  where  a  defendant  only  repeated  what  he  had  heard  before,  but 
without  naming  the  author)  ^  upon  which,  if  that  were  a  tenable 
groimd,  verdicts  would  have  been  sought  for  and  obtained,  and  the 
absence  of  any  such  instance  is  a  proof  of  what  has  been  the  general 
and  universal  opinion  upon  the  point.  Had  it  been  noticed  to  the 
jury  how  the  defendant  came  to  speak  the  words,  and  had  it  been  left 
to  them  as  a  previous  question,  whether  the  defendant  understood 
Watkins  as  asking  for  information  for  his  own  guidance,  and  that 
the  defendant  spoke  what  he  did  to  Watkins,  merely  by  way  of  honest 
advice  to  regulate  his  conduct,  the  question  of  malice  in  fact  would 
have  been  proper  as  a  second  question  to  the  jury,  if  their  minds  were 
in  favor  of  the  defendant  upon  the  first;  but  as  the  previous  question 
I  have  mentioned  was  never  put  to  the  jury,  but  this  was  treated  as 
an  ordinary  case  of  slander,  we  are  of  opinion  that  the  question  of 
malice  ought  not  to  have  been  left  to  the  jury.  It  was,  however, 
pressed  upon  us  with  considerable  force,  that  we  ought  not  to  grant  a 
new  trial,  on  the  ground  that  the  evidence  did  not  support  any  of  the 


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CHAP.  VI.]  HANSON  V.  GLOBE  NEWSPAPEK  CO.  665 

counts  in  the  declaration,  but  upon  carefully  attending  to  the  declara- 
tion and  the  evidence,  we  think  we  are  not  warranted  in  saying  that 
there  was  no  evidence  to  go  to  the  jury  to  support  the  declaration; 
and  had  the  learned  judge  intimated  an  opinion  that  there  was  no  such 
evidence,  the  plaintiff  might  have  attempted  to  supply  the  defect.  We, 
therefore,  think  that  we  cannot  properly  refuse  a  new  trial,  upon  the 
ground  that  the  result  upon  the  trial  might  have  been  doubtful.  In 
granting  a  new  trial,  however,  the  court  does  not  mean  to  say  that  it 
may  not  be  proper  to  put  the  question  of  maUce  as  a  question  of  fact 
for  the  consideration  of  the  jury;  for  if  the  jury  should  think  that 
when  Watkins  asked  his  question  the  defendant  understood  it  as  asked 
in  order  to  obtain  information  to  r^ulate  his  own  conduct,  it  will 
range  under  the  cases  of  privileged  communication,  and  the  question 
of  maUce,  in  fact,  will  then  be  a  necessary  part  of  the  jury's  inquiry; 
but  it  does  not  appear  that  it  was  left  to  the  jury  m  this  case,  to  con- 
sider whether  this  was  understood  by  the  defendant  as  an  appUcation 
to  him  for  advice,  and  if  not,  the  question  of  malice  was  improperly 
left  to  their  consideration.  We  are,  therefore,  of  opinion,  that  the 
rule  for  a  new  trial  must  be  absolute.  Rule  absolute} 


HANSON  V.  GLOBE  NEWSPAPER  COMPANY 

Supreme  Judicial  Court,  Massachusetts,  June  20, 1893. 

Reported  iff  159  Massachusetts  Reports,  293. 

Knowlton,  J.*  The  defendant  published  in  its  newspaper  an 
article  describing  the  conduct  of  a  prisoner  brought  before  the  Mu- 
nicipal Court  of  Boston,  and  the  proceedings  of  the  court  in  the  case, 
designating  him  as  "  H.  P.  Hanson,  a  real  estate  and  insurance  broker 
of  South  Boston."  He  was,  in  fact,  a  real  estate  and  insurance  broker 
of  South  Boston,  and  the  article  was  substantially  true,  except  that 
he  should  have  been  called  A.  P.  H.  Hanson  instead  of  H.  P.  Hanson. 
The  plaintiff,  H.  P.  Hanson,  is  also  a  real  estate  and  insurance  broker 
in  South  Boston,  and  in  writing  the  article  the  reporter  used  his  name 
by  mistake.'  The  justice  of  the  Superior  Court,  before  whom  the 
case  was  tried,  without  a  jury,  "  found  as  a  fact  that  the  alleged  Ubel 

1  Massee  v.  wmiams,  (C.  C.  A.)  207  Fed.  222;  Ivie  v.  King,  167  N.  C.  174; 
Olympia  WaterworfcB  v.  Mottman,  88  Wash.  694  Accord.  See  Ex  parU  Nelson,  251 
Mo.  63. 

'  A  portion  of  the  opinion  is  omitted. 

'  The  article  was  as  follows:  "  He  Waxed  Eloquent.  H.  P.  Hanson  fined  ten 
dollars  for  refusing  payment  of  car  fare.  ...  H.  P.  Hanson,  a  real  estate  and  in- 
surance broker  of  South  Boston,  emerged  from  the  seething  mass  of  humanity  that 
filled  the  dock  and  indulged  in  a  wordy  bout  with  policeman  Hogan,  who  claimed 
to  have  arrested  Hanson  on  the  charge  of  evading  car  fare  and  being  drunk  at  the 
same  time.  The  judge  agreed  that  the  prisoner  was  sober,  but  on  the  charge  of 
evasion  of  car  fare  the  evidence  warranted  the  fining  of  the  eloquent  occupant  of 
the  dock  ten  dollars  without  costs,  which  he  paid." 


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666  HANSON  V.  GLOBE  NEWSPAPEK  CO.  [CHAP.  VI. 

declared  on  by  the  plaintiflf  was  not  published  by  the  defendant  of  or 
concerning  the  plaintiff,"  and  the  only  question  in  the  case  is  whether 
this  finding  was  erroneous  as  matter  of  law. 

In  every  action  of  this  kind  the  fundamental  question  is,  What  is 
the  meaning  of  the  author  of  the  allied  Ubel  or  slander,  conveyed  by 
the  words  used  interpreted  in  the  light  of  all  the  circumstances  ?  The 
reason  of  this  is  obvious.  Defamatory  language  is  harmful  only  as  it 
purports  to  be  the  expression  of  the  thought  of  him  who  uses  it.  In 
determining  the  effect  of  a  slander  the  questions  involved  are.  What 
is  the  thought  intended  to  be  expressed,  and  how  much  credit  should 
be  given  to  him  who  expresses  it  ?  The  essence  of  the  wrong  is  the 
expression  of  what  purports  to  be  the  knowledge  or  opinion  of  him 
who  utters  the  defamatory  words,  or  of  some  one  else  whose  language 
he  repeats.  His  meaning,  to  be  ascertained  in  a  proper  way,  is  what 
gives  character  to  his  act,  and  makes  it  innocent  or  wrongful.  The 
damages  depend  chiefly  upon  the  weight  which  is  to  be  given  to  his 
expression  of  his  meaning,  and  all  the  questions  relate  back  to  the 
ascertainment  of  his  meaning. 

In  the  present  case  we  are  concerned  only  with  the  meaning  of  the 
defendant  in  r^ard  to  the  person  to  whom  the  language  of  the  pub- 
lished article  was  to  be  appUed,  and  the  question  to  be  decided  is.  How 
may  his  meaning  legitimately  be  ascertained  ?  Obviously,  in  the  first 
place,  from  the  language  used;  and  in  construing  and  applying  the 
language,  the  circumstances  under  which  it  was  written  and  the  facts 
to  which  it  relates  are  to  be  considered,  so  far  as  they  can  readily  be 
ascertained  by  those  who  read  the  words,  and  who  attempt  to  find  out 
the  meaning  of  the  author  in  regard  to  the  person  of  whom  they  were 
written.  It  has  often  been  said  that  the  meaning  of  the  language  is 
not  necessarily  that  which  it  may  seem  to  have  to  those  who  read  it 
as  strangers,  without  knowledge  of  facts  and  circumstances  which 
give  it  color  and  aid  in  its  interpretation,  but  that  which  it  has  when 
read  in  the  light  of  events  which  have  relation  to  the  utterance  or 
pubUcation  of  it. 

For  the  purposes  of  this  case  it  may  be  assumed,  in  favor  of  the 
plaintiff,  that  if  the  language  used  in  a  particular  case,  interpreted  in 
the  light  of  such  events  and  circumstances  attending  the  pubUcation 
of  it  as  could  readily  be  ascertained  by  the  pubUc,  is  free  from  am- 
biguity in  regard  to  the  person  referred  to,  and  points  clearly  to  a 
well  faiown  person,  it  would  be  held  to  have  been  published  concern- 
ing that  person,  although  the  defendant  should  show  that  through 
some  mistake  of  fact,  not  easily  discoverable  by  the  public,  he  had 
designated  in  his  publication  a  person  other  than  the  one  whom  he  in- 
tended to  designate.  It  may  well  be  held  that  where  the  language, 
read  in  connection  with  all  the  facts  and  circumstances  which  can  be 
used  in  its  interpretation,  is  free  from  ambiguity,  the  defendant  will 
not  be  permitted  to  show  that  throu^  ignorance  or  mistake  he  said 


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CHAP.  VI.]     HANSON  V.  GLOBE  NEWSPAPEK  CO.  667 

something,  either  by  way  of  designating  the  person,  or  making  asser- 
tions about  him,  different  from  that  which  he  intended  to  say;  but 
his  true  meaning  should  be  ascertained,  if  it  can  be,  with  the  aid  of 
such  facts  and  circumstances  attending  the  publication  as  may  easily 
be  known  by  those  of  the  public  who  wish  to  discover  it. 

Whether  the  defendant  should  ever  be  permitted  to  state  his  imdis- 
closed  intention  in  r^ard  to  the  person  of  whom  the  words  are  used, 
may  be  doubtful.  If  language  purporting  to  be  used  of  only  one  per- 
son would  refer  equally  to  either  of  two  dififerent  persons  of  the  same 
name,  and  if  there  were  nothing  to  indicate  that  one  was  meant  rather 
than  the  other,  there  is  good  reason  for  holding  that  the  defendant's 
testimony  in  regard  to  his  secret  intention  might  be  received,  but  per- 
haps such  a  case  is  hardly  supposable.  Odgers,  in  his  book  on  Libel 
and  Slander,  at  page  129,  says:  "  So,  if  the  words  spoken  or  written, 
though  plain  in  themselves,  apply  equally  well  to  more  persons  than 
one,  evidence  may  be  given  botii  of  the  cause  and  occasion  of  publica- 
tion, and  of  all-  the  surrounding  circumstances  affecting  the  relation 
between  the  parties,  and  also  any  statement  or  declaration  made  by 
the  defendant  as  to  the  person  referred  to.''  In  Regina  v,  Banuu*d, 
43  J.  P.  127,  when  it  was  uncertain  whether  the  libel  referred  to  the 
complainant  or  not,  and  when  the  language  wa^  applicable  to  him. 
Lord  Chief  Justice  Cockbum  held  the  affidavit  of  the  writer  that  he 
did  not  mean  him,  but  some  one  else,  to  be  a  sufficient  reason  for  refus- 
ing process.  In  De  Armond  v.  Armstrong,  37  Ind.  35,  evidence  was 
received  of  what  the  witnesses  understood  in  r^ard  to  the  person 
referred  to.  In  Smart  v.  Blanchard,  42  N.  H.  137,  it  is  stated  that 
extrinsic  evidence  is  to  be  received  "  to  shc^w  that  the  defendant  in- 
tended to  apply  his  remarks  to  the  plaintiff,''  when  his  meaning  is 
doubtful.  Goodrich  v.  Davis,  11  Met.  473,  480,  484,  485,  and  Miller 
t;.  Butler,  6  Cush.  71,  are  of  similar  purport.  See  also  Harwell  v. 
Adkins,  1  M.  &  G.  807;  Knapp  v.  Fuller,  55  Vt.  311;  Commonwealth 
t;.  Morgan,  107  Maa3.  199,  201. 

If  the  defendant's  article  had  contained  an3rthing  libellous  against 
A.  P.  H.  Hanson,  there  can  be  no  doubt  that  he  could  have  maintained 
an  action  against  the  defendant  for  this  publication.  The  name  used 
is  not  conclusive  in  determining  the  meaning  of  the  libel  in  respect  to 
the  person  referred  to;  it  is  but  one  fact  to  be  considered  with  other 
facts  upon  that  subject.  Fictitious  names  are  often  used  in  libels,  and 
names  similar  to  that  of  the  person  intended,  but  differing  somewhat 
from  it.  A.  P.  H.  Hanson  could  have  shown  that  the  description  of 
him  by  name,  residence,  and  occupation  was  perfect,  except  in  the  use 
of  the  initials  "  H.  P."  instead  of  "  A.  P.  H.,"  that  the  article  re- 
ferred to  an  occasion  on  which  he  was  present,  and  gave  a  description 
of  conduct  of  a  prisoner,  and  of  proceedings  in  coiurt,  which  was  cor- 
rect in  its  application  to  him  and  to  no  one  else.  The  internal  evi- 
dence when  applied  to  facts  well  known  to  the  pubUc  would  have 


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668  HANSON  V.  GLOBE  NEWSPAPER  CO.  [CHAP.  VI. 

been  ample  to  show  that  the  language  referred  to  him,  and  not  to  the 
person  whose  name  was  used. 

So,  in  the  present  suit,  the  court  had  no  occasion  to  rely  on  the 
testimony  of  the  writer  as  to  the  person  to  whom  the  language  was 
intended  to  apply.  The  language  itself,  in  connection  with  the  pub- 
licly known  circumstances  under  which  it  was  written,  showed  at 
once  that  the  article  referred  to  A.  P.  H.  Hanson,  and  that  the  name 
H.  P.  Hanson  was  used  by  mistake.  As  the  evidence  showed  that  the 
words  were  published  of  and  concerning  A.  P.  H.  Hanson,  the  finding 
that  they  were  not  published  of  the  plaintiff  followed  of  necessity.* 
The  article  was  of  such  a  kind  that  it  referred,  and  could  refer,  to  one 
person  only;  when  that  person  was  ascertained,  it  might  appear  that 
the  publication  as  against  him  was  or  was  not  Ubellous,  and  his  rights, 
if  he  brought  a  suit,  would  depend  upon  the  finding  in  respect  to  that. 
No  one  else  would  have  a  cause  of  action,  even  if,  by  reason  of  identity 
of  name  with  that  used  in  the  publication,  he  might  suffer  some  harm. 
For  illustration,  suppose  a  Ubel  is  written  concerning  a  person  de- 
scribed as  John  Smitii  of  Springfield.  Suppose  there  are  five  persons 
in  Springfield  of  that  name.  The  language  refers  to  but  one.  When 
we  ascertain  by  legitimate  evidence  to  which  one  the  words  are  in- 
tended to  apply,  he  can  maintain  an  action.  The  other  persons  of 
the  same  name  cannot  recover  damages  for  a  libel  merely  because  of 
their  misfortune  in  having  a  name  like  that  of  the  person  Ubelled. 
Or,  if  the  defendant  can  justify  by  proving  that  the  words  were  true, 
and  published  without  malice,  he  is  not  guilty  of  a  libel,  even  if,  writ- 
ten of  other  persons  of  the  same  name  of  whose  existence  very  likely 
he  was  ignorant,  the  words  would  be  libellous;  otherwise,  one  who 
has  published  that  which  by  its  terms  can  refer  to  but  one  person,  and 
be  a  Ubel  on  him  only,  might  be  responsible  for  half  a  dozen  libels 
on  as  many  different  persons,  and  one  who  has  justifiably  published 
the  truth  of  a  person  might  be  liable  to  several  persons  of  the  same 
name  of  whom  the  language  would  be  untrue.  The  law  of  Ubel  has 
never  been  extended,  and  should  not  be  extended,  to  include  such 
cases. 

Whether  there  should  be  a  UabiUty  foimded  on  n^Ugence  in  any 
case  when  the  truth  is  {)ublished  of  one  to  whom  the  words,  inter- 
preted in  the  light  of  accompanying  circumstances  easily  ascertainable 
by  those  who  read  them,  plainly  apply;  and  where,  by  reason  of  iden- 
tity of  names,  or  similarity  of  names  and  description,  a  part  of  the 
pubUc  might  think  them  appUcable  to  another  person  of  whom  they 
would  be  UbeUous,  is  a  question  which  does  not  arise  on  the  plead- 
ings in  this  case.  So  far  as  we  are  aware,  no  action  for  such  a  cause 
has  ever  been  maintained.  It  is  ordinarily  to  be  presumed,  although 
it  may  not  always  be  the  fact,  that  those  who  are  enough  interested 
in  a  person  to  be  affected  by  what  is  said  about  him,  will  ascertain, 
if  they  easily  can,  whether  libellous  words  which  purport  to  refer 


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CHAP.  VI.]  HANSON  V.  GLOBE  NEWSPAPER  CO.  669 

to  one  of  his  name  were  intended  to  be  applied  to  him  or  to  some 
one  else. 

The  question  in  this  case,  whether  the  words  were  published  of  and 
concerning  the  plaintiff,  was  one  of  fact  on  all  the  evidence.  Unless 
it  appears  that  the  matters  stated  in  the  report  would  not  warrant  a 
finding  for  the  defendant,  there  must  be  judgment  for  him,  even  if  the 
finding  of  fact  might  have  been  the  other  way.  We  are  of  opinion 
that  the  finding  was  well  warranted,  and  there  must  be, 

Judgment  an  the  finding. 

Holmes,  J.  I  am  unable  to  agree  with  the  decision  of  the  majority 
of  the  court,  and  as  the  question  is  of  some  importance  in  its  bearing 
on  legal  principles,  and  as  I  am  not  alone  in  my  views,  I  think  it 
proper  to  state  the  considerations  which  have  occurred  to  me. 

Those  words  [H.  P.  Hanson,  a  real  estate  and  insurance  broker  of 
South  Boston]  describe  the  plaintiff,  and  no  one  else.  The  only 
ground,  then,  on  which  the  matters  alleged  of  and  concerning  that 
subject  can  be  found  not  to  be  alleged  of  and  concerning  the  plaintiff, 
is  that  the  defendant  did  not  intend  them  to  apply  to  him,  and  the 
question  is  narrowed  to  whether  such  a  want  of  intention  is  enough 
to  warrant  the  finding,  or  to  constitute  a  defence,  when  the  inevitable 
consequence  of  the  defendant's  acts  is  that  the  public,  or  that  part  of 
it  which  knows  the  plaintiff,  will  suppose  that  the  defendant  did  use 
its  language  about  him. 

On  general  principles  of  tort,  the  private  intent  of  the  defendant 
would  not  exonerate  it.  It  knew  that  it  was  publishing  statements 
purporting  to  be  serious,  which  would  be  hiutful  to  a  man  if  applied 
to  him.  It  knew  that  it  was  using  as  the  subject  of  those  statements 
words  which  purported  to  designate  a  particular  man,  and  would  be 
imderstood  by  its  readers  to  designate  one.  In  fact,  the  words  pur- 
ported to  designate,  and  would  be  understood  by  its  readers  to  desig- 
nate, the  plaintiff.  If  the  defendant  had  supposed  that  there  was  no 
such  person,  and  had  intended  simply  to  write  an  amusing  fiction, 
that  would  not  be  a  defence,  at  least  unless  its  belief  was  justifiable. 
Without  special  reason,  it  would  have  no  right  to  assume  that  there 
was  no  one  within  the  sphere  of  its  influence  to  whom  the  description 
answered.  So,  when  the  description  which  points  out  the  plaintiff  is 
supposed  by  the  defendant  to  point  out  toother  man  whom  in  fact  it 
does  not  describe,  the  defendant  is  equally  liable  as  when  the  descrip- 
tion is  supposed  to  point  out  nobody.  On  the  general  principles  of 
tort,  the  publication  is  so  manifestly  detrimental  that  the  defendant 
publishes  it  at  the  peril  of  being  able  to  justify  it  in  the  sense  in  which 
the  public  will  understand  it. 

A  man  may  be  liable  civilly,  and  formerly,  at  least  by  the  common 
law  of  England,  even  criminally,  for  publishing  a  libel  without  know- 
ing it.    Curtis  V.  Mussey,  6  Gray,  261;  Commonwealth  v,  Morgan, 


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670  HANSON  V.  GLOBE  NEWSPAPER  CO.  [CHAP.  VI. 

107  Mass.  199;  Dunn  v.  Hall,  1  Ind.  344;  Rex  v.  Walter,  3  Esp.  21; 
Rex  V.  Gutch,  Mood.  &  Malk.  433.  See  also  Rex  v.  Cuthell,  27  St.  Tr. 
642.  And  it  seems  he  might  be  liable  civilly  for  publishing  it  by  mis- 
take, intending  to  publish  another  paper.  Mayne  v,  Fletcher,  4  Man. 
&  Ry.  311,  312,  note.  Odgers,  Libel  and  Slander,  (2d  ed.)  5.  So, 
when  by  mistake  the  name  of  ihe  plaintiff's  firm  was  inserted  under 
the  head  "  First  Meetings  under  the  Bankruptcy  Act,"  instead  of 
under  "  Dissolution  of  Partnerships."  Shepheard  v.  Whitaker,  L.  R. 
10  C.  P.  502.  So  a  man  will  be  liable  for  a  slander  spoken  in  jest,  if 
the  bystanders  reasonably  imderstand  it  to  be  a  serious  chaise. 
Donoghue  v.  Hayes,  Hayes,  265.  Of  course  it  does  not  matter  that 
the  defendant  did  not  intend  to  injure  the  plaintiff,  if  that  was  the 
manifest  tendency  of  his  words.  Curtis  v.  Mussey,  6  Gray,  261,  273; 
Haire  v.  Wilson,  9  B.  &  C.  643.  And  to  prove  a  pubUcation  concern- 
ing the  plaintiff,  it  lies  upon  him  "  only  to  show  that  this  construction, 
which  they  Ve  put  upon  the  paper,  is  such  as  the  generality  of  readers 
must  take  it  in,  according  to  the  obvious  and  natural  sense  of  it." 
The  King  v.  Clerk,  1  Barnard.  304,  305.  See  further  Fox  v.  Brod- 
erick,  14  Ir.  C.  L.  453;  Odgers,  Libel  and  Slander,  (2d  ed.)  155,  269, 
435,  638.  In  Smith  v.  Ashley,  11  Met.  367,  the  jury  were  instructed 
that  the  publisher  of  a  newspaper  article  written  by  another,  and 
supposed  and  stiU  asserted  by  the  defendant  to  be  a  fiction,  was  not 
liable  if  he  believed  it  to  be  so.  Under  the  circumstances  of  the  case, 
"  believed  "  meant  "  reasonably  beUeved."  Even  so  qualified,  it  is 
qutetioned  by  Mr.  Odgers  if  the  ruling  would  be  followed  in  England. 
Odgers,  Libel  and  Slander,  (1st  Am.  ed.)  387,  (2d  ed.)  638.  But  it 
has  no  appUcation  to  this  case,  as  here  the  defendant's  agent  wrote 
the  article,  and  there  is  no  evidence  that-  he  or  the  defendant  had 
any  reason  to  believe  that  H.  P.  Hanson  meant  any  one  but  the 
plaintiff. 

The  foregoing  decisions  show  that  slander  and  libel  now,  as  in  the 
beginning,  are  governed  by  the  general  principles  of  the  law  of  tort, 
and,  if  that  be  so,  the  defendant's  ignorance  that  the  words  which  it 
published  identified  the  plaintiff  is  no  more  an  excuse,  than  ignorance 
of  any  pther  fact  about  which  the  defendant  has  been  put  on  inquiry. 
To  hold  that  a  man  publishes  such  words  at  his  peril,  when  they  are 
supposed  to  describe  a  different  man,  is  hardly  a  severer  application 
of  the  law,  than  when  they  are  uttered  about  a  man  believed  on  the 
strongest  grounds  to  be  dead,  and  thus  not  capable  of  being  the  sub- 
ject of  a  tort.  It  has  been  seen  that  by  the  common  law  of  England 
such  a  belief  would  not  be  an  excuse.  Heame  v.  Stowell,  12  A.  &  E. 
719,  726,  denying  Parson  Prick^s  case. 

I  feel  some  difficulty  in  putting  my  finger  on  the  precise  point  of 
difference  between  the  minority  and  majority  of  the  comrt.  I  imder- 
stand, however,  that  a  somewhat  unwilling  assent  is  yielded  to  the 
general  views  which  I  have  endeavored  to  justify,  and  I  should  gather 


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CHAP.  VI.]     HANSON  V.   GLOBE  NEWSPAPER  CO.  671 

that  the  exact  issue  was  to  be  found  in  the  statement  that  the  article 
was  one  describing  the  conduct  of  a  prisoner  brought  before  the 
Mimicipal  Court  of  Boston,  coupled  with  the  later  statement  that  the 
language,  taken  in  connection  with  the  publicly  known  circumstances 
under  which  it  was  written,  showed  at  once  that  the  article  referred 
to  A.  P.  H.  Hanson,  and  that  the  name  of  H.  P.  Hanson  was  used  by 
mistake.  I  have  shown  why  it  seems  to  me  that  these  statements  are 
misleading.  I  only  will  add  on  this  point,  that  I  do  not  know  what 
the  pubUcly  known  circumstances  are.  I  think  it  is  a  mistake  of  fact 
to  suppose  that  the  public  generaUy  know  who  was  before  the  Mimici- 
pal Criminal  Court  on  a  given  day.  I  think  it  is  a  mistake  of  law 
to  say  that,  because  a  small  part  of  the  pubUc  have  that  knowledge, 
the  plaintiff  cannot  recover  for  the  harm  done  him  in  the  eyes  of  the 
greater  part  of  the  public,  probably  including  all  his  acquaintances 
who  are  ignorant  about  the  matter,  and  I  also  think  it  no  sufficient 
answer  to  say  that  they  might  consult  the  criminal  records,  and  find 
out  that  probably  there  was  some  error.  Blake  v.  Stevens,  4  F.  &  F. 
232,  240.  If  the  case  should  proceed  further  on  the  facts,  it  might 
appear*that,  in  view  of  the  plaintiff's  character  and  circumstances,  all 
who  knew  him  would  assiune  that  there  was  a  mistake,  that  the  harm 
to  him  was  merely  nominal,  and  that  he  had  been  too  hasty  in  resort- 
ing to  an  action  to  vindicate  himself.  But  that  question  is  not  before 
us. 

With  reference  to  the  suggestion  that,  if  the  article,  in  addition  to 
what  was  true  concerning  A.  P.  H.  Hanson,  had  contained  matter 
which  was  false  and  libellous  as  to  him,  he  might  have  maintained  an 
action,  it  is  unnecessary  to  express  an  opinion.  I  think  the  proposi- 
tion less  obvious  than  that  the  plaintiff  can  maintain  one.  lif  an 
article  should  describe  the  subject  of  its  statements  by  two  sets  of 
marks,  one  of  which  identified  one  man  and  one  of  which  identified 
another,  and  a  part  of  the  public  naturally  and  reasonably  were  led  by 
the  one  set  to  apply  the  statements  to  one  plaintiff,  and  another  part 
were  led  in  the  same  way  by  the  other  set  to  apply  them  to  anotiier, 
I  see  no  absm*dity  in  allowing  two  actions  to  be  maintained.  But  that 
is  not  this  case. 

Even  if  the  plaintiff  and  A.  P.  H.  Hanson  had  borne  the  same 
name,  and  the  article  identified  its  subject  only  by  a  proper  name, 
very  possibly  that  would  not  be  enough  to  raise  the  question.  For,  as 
every  one  knows,  a  proper  name  always  piurports  to  designate  one 
person  and  no  other,  and  although,  through  the  imperfection  of  our 
system  of  naming,  the  same  combination  of  letters  and  soimds  may  be 
applied  to  two  or  more,  the  name  of  each,  in  theory  of  law,  is  dis- 
tinct, althou^  there  is  no  way  of  finding  out  which  person  was  named 
but  by  inquiring  which  was  meant.  "  Ldcet  idem  sit  nomen,  tamen 
diveraum  est  propter  diversitatem  personae.^'  Bract,  fol.  190  a.  Com- 
monwealth V,  Bacon,  135  Mass.  521:,  525.    Cocker  v.  Crompton,  1  B. 


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672  PECK  V.  TRIBUNE  CO.  [CHAP.  VI. 

&  C.  489.    In  re  Cooper,  20  Ch.  D.  611.    Mead  v.  Phenix  Ins.  Co., 
158  Mass.  124,  126.    Kyle  v.  Kavanagh,  103  Mass.  356.    Raffles  v. 
Wichelhaus,  2  H.  &  C.  906. 
Mr.  Justice  Morton  and  Mr.  Justice  Barker  agree  with  this  opinion.^ 


PECK  V.  TRIBUNE  COMPANY 
Supreme  Court  of  the  United  States,  May  17, 1909. 
Reported  in  214  United  States  ReporU,  185. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  an  action  on  the  case  for  a  libel.  The  libel  alleged  is  found 
in  an  advertisement  printed  in  the  defendant's  newspaper,  The  Chicago 
Sunday  Tribune^  and  so  far  as  is  material  is  as  follows:  "  Nurse  and 
Patients  Praise  Duffy's— Mrs.  A.  Schuman,  One  of  Chicago's  Most 
Capable  and  Experienced  Nurses,  Pajrs  an  Eloquent  Tribute  to  the 
Great  Invigorating,  Life-Giving  and  Curative  Properties  of  Duffy's 
Pure  Malt  Whiskey.  .  .  .''  Then  followed  a  portrait  of  the  plaintiff, 
with  the  words  "  Mrs.  A.  Schuman  "  under  it.  Then,  in  quotation 
marks,  "  After  years  of  constant  use  of  your  Pure  Malt  Whiskey,  both 
by  myself  and  as  given  to  patients  in  my  capacity  as  nurse,  I  have  no 
hesitation  in  recommending  it  as  the  very  best  tonic  and  stimulant 
for  all  weak  and  rundown  conditions,"  Ac,  &c.,  with  the  words  "  Mrs. 
A.  Schuman,  1576  Mozart  St.,  Chicago,  111.,"  at  the  end,  not  in  quota- 
tion marks,  but  conveying  the  notion. of  a  signature,  or  at  least  that 
the  words  were  hers.  The  declaration  allied  that  the  plaintiff  was 
not  Mrs.  Schuman,  was  not  a  nurse,  and  was  a  total  abstainer  from 
whiskey  and  all  spirituous  Uquors.  There  was  also  a  count  for  pub- 
lishing the  plaint^'s  likeness  without  leave.  The  defendant  pleaded 
not  guilty.  At  the  trial,  subject  to  exceptions,  the  judge  excluded 
the  plaintiff's  testimony  in  support  of  her  allegations  just  stated,  and 
directed  a  verdict  for  the  defendant.  His  action  was  sustained  by  the 
Circuit  Court  of  Appeals,  154  Fed.  Rep.  330;  s.  c,  83  C.  C.  A.  202. 

Of  course  the  insertion  of  the  plaintiff's  picture  in  the  place  and 
with  the  concomitants  that  we  have  described  imported  that  she  was 
the  nurse  and  made  the  statements  set  forth,  as  rightly  was  decided  in 
Wandt  V,  Hearst's  Chicago  American,  129  Wisconsin,  419, 421.  Mor- 
rison V,  Smith,  177  N.  Y.  366.  Therefore  the  publication  was  of  and 
concerning  the  plaintiff,  notwithstanding  the  presence  of  another  fact, 
the  name  of  the  real  signer  of  the  certificate,  if  that  was  Mrs.  Schu- 

*  The  opinion  of  the  dissentingjudges  is  siipported  by  tlie  decisions  and  dicta 
in  other  jurisdictions.  Butler  v.  Barret,  130  Fed.  944  {%emble)\  Every  Evening 
Co.  V.  Butler,  144  Fed.  916:  Taylor  v,  Hearst,  107  Cal.  262;  Hulbert  t;.  New  Co., 
Ill  la.  490;  Davis  v.  Marxhausen,  86  Mich.  281, 103  Mich.  316  (sembU))  Clark  v. 
North  American  Co.,  203  Pa.  St.  346  {8embk)\  Hutchinson  v.  Robinson,  21  N.  S. 
W.  L.  R.  (Law)  130  {sembU).  Compare  Newton  v.  Grubbs,  155  Ky.  479;  Ellis  v. 
Brockton  Pub.  Co.,  198  Mass.  638;  Dunlop  t;.  Sundberg,  66  Wash.  609. 


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CHAP.  VI.]  PECK  V.  TRIBUNE  CO.  673 

man,  that  was  inconsistent,  when  all  the  fadfe  were  known,  with  the^ 
plaintiff's  having  signed  or  adopted  it.  Many  might  recognize  the^ 
plaintiff's  face  without  knowing  her  name,  and  those  who  did  know 
it  might  be  led  to  infer  that  she  had  sanctioned  the  publication  under 
an  alias.  There  was  some  suggestion  that  the  defendant  published  the 
portrait  by  mistake,  and  without  knowledge  that  it  was  the  plaintiff's 
portrait  or  was  not  what  it  purported  to  be.  But  the  fact,  if  it  was 
one,  was  no  excuse.  If  the  pubUcation  was  Ubellous  the  defendant 
took  the  risk.  As  was  said  of  such  matters  by  Lord  Mansfield,  "  What- 
ever a  man  publishes  he  publishes  at  his  peril."  The  King  v.  Wood- 
fall,  Lofift,  776,  781.  See  further  Heame  v.  Stowell,  12  A.  &  E.  719, 
726;  Shepheard  v.  Whitaker,  L.  R.  10  C.  P.  602;  Clark  v.  North 
American  Co.,  203  Pa.  St.  346,  351,  352.  The  reason  is  plain.  A 
libel  is  harmful  on  its  face.  If  a  man  sees  fit  to  publish  manifestly 
hurtful  statements  concerning  an  individual,  without  other  justifica- 
tion than  exists  for  an  advertisement  or  a  piece  of  news,  tiie  usual 
principles  of  tort  will  make  him  liable,  if  the  statements  are  false  or 
are  true  only  of  some  one  else.  See  Morasse  v.  Brochu,  151  Massachu- 
setts, 567,  575. 

The  question,  then,  is  whether  the  pubUcation  was  a  libel.  It  was 
held  by  the  Circuit  Court  of  Appeals  not  to  be,  or  at  most  to  entitle 
the  plaintiff  only  to  nominal  damages,  no  special  damage  being  alleged. 
It  was  pointed  out  that  there  was  no  general  consensus  of  opinion  that 
to  drink  whiskey  is  wrong  or  that  to  be  a  nurse  is  discreditable.  It 
might  have  been  added  that  very  possibly  giving  a  certificate  and  the 
use  of  one's  portrait  in  aid  of  an  advertisement  would  be  regarded 
with  irony,  or  a  stronger  feeling,  only  by  a  few.  But  it  appears  to  us 
that  such  inquiries  are  beside  the  point.  It  may  be  that  the  action 
for  Ubel  is  of  little  use,  but  while  it  is  maintained  it  should  be  gov- 
erned by  the  general  principles  of  tort.  If  the  advertisement  obviously 
would  hiirt  the  plaintiff  in  the  estimation  of  an  important  and  respect- 
able part  of  the  community,  liability  is  not  a  question  of  a  majority 
vote. 

We  know  of  no  decision  in  which  this  matter  is  discussed  upon 
principle.  But  obviously  an  unprivileged  falsehood  need  not  entail 
universal  hatred  to  constitute  a  cause  of  action.  No  falsehood  is 
thought  about  or  even  known  by  all  the  world.  No  conduct  is  hated 
by  all.  That  it  will  be  known  by  a  large  number  and  will  lead  an 
appreciable  fraction  of  that  number  to  regard  the  plaintiff  with  con- 
tempt is  enough  to  do  her  practical  harm.  Thus  if  a  doctor  were 
represented  as  advertising,  the  fact  that  it  would  affect  his  standing 
with  others  of  his  profession  might  make  the  representation  action- 
able, although  advertising  is  not  reputed  dishonest  and  even  seems  to 
be  regarded  by  many  with  pride.  See  Martin  v.  The  Picayune,  115 
Louisiana,  979.  It  seems  to  us  impossible  to  say  that  the  obvious 
tendency  of  what  is  imputed  to  the  plaintiff  by  this  advertisement  is  ' 


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674  •     E.  HULTON  &  CO.  V.  JONES  [CHAP.  VI. 

,not  seriously  to  hurt  her  standing  with  a  considerable  and  respectable 
class  in  the  community.  Therefore  it  was  the  plaintiff's  right  to  prove 
her  case  and  go  to  the  jury,  and  the  defendant  would  have  got  all  that 
it  could  ask  if  [it]  had  been  permitted  to  persuade  them,  if  it  could, 
to  take  a  contrary  view.  Cuhner  v.  Canby,  101  Fed.  Rep.  195,  197; 
Twombly  v.  Monroe,  136  Massachusetts,  464, 469.  See  Gates  v.  New 
York  Recorder  Co.,  155  N.  Y.  228. 

It  is  unnecessary  to  consider  the  question  whether  the  publication 
of  the  plaintiff's  likeness  was  a  tort  per  se.  It  is  enough  for  the  pres- 
ent case  that  the  law  should  at  least  be  prompt  to  recognize  the  in- 
juries that  may  arise,  from  an  unauthorized  use  in  connection  with 
other  facts,  even  if  more  subtilty  is  needed  to  state  the  wrong  than 
is'  needed  here.    In.  this  instance  we  feel  no  doubt. 

Judgment  reversed} 


E.  HULTON  AND  COMPANY  v.  JONES 

In  the  House  of  Ix)rds,  December  6,  1909. 

Reported  in  [1909]  Appeal  Casee,  20. 

The  following  statement  is  taken  from  the  opinion  of  Lord  Alver- 
stone,  C.  J.,  in  the  Court  of  Appeal.^ 

"  The  action  was  brought  by  the  plaintiff,  a  member  of  the  Bar, 
in  respect  of  a  libel  published  in  the  Sunday  Chronicle  on  July  12, 
1908  (the  passages  complained  of  are  set  out  in  the  statement  of 
claim),  which  appeared  in  an  article  in  the  defendants'  paper  purport- 
ing to  describe  what  the  Paris  correspondent  of  the  paper  had  wit- 
nessed at  Dieppe,  and  the  particular  passage  on  which  the  question 
really  turns  was  in  these  words:  *  "  Whist!  there  is  Artemus  Jones 
with  a  woman  who  Is  not  his  wife,  who  must  be,  you  know  —  the  other 
thing  1 "  whispers  a  fair  neighbor  of  mine  excitedly  into  her  bosom 
friend's  ear.  Really,  is  it  not  surprising  how  certain  of  our  fellow- 
coimtr3niien  behave  when  they  come  abroad  ?  '  It  was  alleged  by  the 
plaintiff  that  this  passage  was  a  libel  upon  him. 

"  The  material  facts  which  were  proved  in  evidence  at  the  trial  were 
as  follows.  The  plaintiff,  whose  real  name  is  Thomas  Jones,  is  thirty- 
seven  years  old,  and  since  the  year  1901  has  been  a  member  of  the  Bar, 
practising  on  the  North  Wales  Circuit.  His  baptismal  name  was 
Thomas  Jones,  but  ever  since  he  was  at  school  he  has  been  known  by 

*  ComMTe  Gandia  v.  Pettingill,  222  U.  S.  462:  Van  Wiginton  v.  Pulitaer  Pub. 
Co.j  (C.  C.  A.)  218  Fed.  795:  Jones  v,  R.  L.  Polk  &  Co.,  190  Ala.  243  (pub- 
lishing of  white  woman  that  she  is  colored);  Ball  v.  Evening  American  Co.,  237 
111.  592;  Maclntyre  t;.  Fruchter,  148  N.  Y.  Suppl.  786  ("  fit  only  for  negroes  to 
associate  with  ");  Spencer  v.  Looney,  116  Va.  767  (assertion  of  white  person  that 
he  was  colored);  Galveston  Tribune  t;.  Guisti,  (Tex.  Civ.  App.)  134  S.  W.  239. 

'  This  abridged  statement  has  been  substituted.  The  arguments  and  all  but  one 
of  the  opinions  have  been  omitted. 


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CHAP.  VI.]  .    E.  HULTON  &  Cp.  V.  JONES  675 

the  name  of  Artemus  Jones  or  Thomas  Artemus  Jones.  He  was  con- 
firmed in  the  latter  name  in  the  year  1886,  and  it  appears  to  have 
been  given  him  by  his  father  in  order  to  distinguish  him  from  other 
persons  of  the  ^ame  of  Jones.  The  defendants  alleged  that  the  name 
was  used  as  a  fictitious  name  adopted  by  the  writer  of  the  article 
without  any  knowledge  of  the  existence  of  the  plaintiff  or  of  any  per- 
son named  Artemus  Jones;  and  both  the  writer  and  the  editor,  who 
were  called  as  witnesses  by  the  defendants  under  circumstances  to 
which  I  shall  have  to  refer,  stated  that  they  had  no  knowledge  what- 
ever of  the  plaintiff,  and  had  no  intention  to  refer  to  him,  and  that  so 
far  as  they  were  concerned  the  name  was  entirely  an  imaginary  name. 
The  counsel  for  the  plaintiff  accepted  the  explanation  given  by  the 
writer,  Mr.  Dawbam,  and  the  editor,  Mr.  Woodbridge,  and  expressly 
stated  that  he  did  not,  after  their  evidence,  all^e  that  they  or  either  of 
them  were  in  fact  actuated  by  malice,  or  intended  to  refer  to  the  plain- 
tiff in  their  article.  Some  question  was  raised  both  at  the  trial  and  on 
the  appeal  before  us  as  to  the  possibility  of  there  being  other  indi- 
viduals in  the  employment  of  the  defendant  company  who  were  actu- 
ated by  express  malice  towards  the  plaintiff,  but  for  the  purpose  of 
my  judgment  I  assume  that  there  was  no  proof  of  malice  in  fact 
on  Uie  part  of  any  agent  or  servant  of  the  defendants.  The  plain- 
tiff called  five  witnesses  who  stated  that  upon  reading  the  article 
they  thought  that  it  referred  to  the  plaintiff,  and  the  plaintiff  was 
prepared  to  call  further  witnesses  to  give  evidence  to  the  same  effect, 
but,  at  the  suggestion  of  the  learned  judge,  he  abstained  from  calling 
them.  .  .  . 

"  At  the  conclusion  of  the  plaintiff's  case,  Mr.  Langdon,  who  was 
then  the  leading  counsel  for  the  defendants,  submitted  that,  as  the 
name  Artemus  Jones  was  a  fictitious  name,  coined  by  the  writer  of  the 
article,  and  not  intended  to  refer  to  any  particular  individual  at  all, 
it  was  not  a  libel  on  anybody,  and  a  fortiori  not  on  the  plaintiff  him- 
self. In  support  of  this  contention  the  case  of  Harrison  v.  Smith, 
20  L.  T.  (n.  s.)  713,  was  at  that  stage  of  the  proceedings  cited  to  the 
learned  judge.  He  ruled  that,  if  a  person  chooses  to  publish  a  thing 
of  this  description,  the  question  is  not  whether  the  man  really  intended 
it,  but  whether  it  would  be  understood  by  readers  to  apply  to  a  par- 
ticular person,  adding  that,  if  sensible  readers  would  see  at  once  that 
it  was  only  an  imaginary  thing,  if  any  one  reading  it  would  see  that 
it  did  not  refer  to  a  gentleman  who  happened  to  bear  the  name  of 
Artemus  Jones,  it  would  not  be  a  libel,  but  if  he  would  think  the  con- 
trary, that  it  did  not  refer  to  an  imaginary  person,  but  to  a  real  in- 
dividual, the  action  might  be  maintained.'' 

It  also  appeared  that  up  to  the  year  1901  plaintiff  had  contributed 
signed  articles  to  defendants'  newspaper. 

At  the  trial  before  Channell,  J.,  the  plaintiff  had  a  verdict  for  £1750, 
upon  which  judgment  was  rendered.    Defendants  appealed. 


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676  B.  HULTON  &  CO.  V.  JONES  [CHAP.  VI. 

The  Ciourt  of  Appeal  (Lord  Alverstone,  C.  J.,  and  Farwell,  L.  J.,  — 
Fletcher  Moiilton,  L.  J.,  dissenting)  dismissed  the  appeal.  Jones  v» 
E.  Hulton  &  Co.,  [1909]  2  K.  B.  444. 

Defendants  then  appealed  to  the  House  of  Lords. 

Lord  Loreburn,  L.  C.  My  Lords,  I  think  this  appeal  must  be  dis- 
missed. Aquestioninregardtothelawof  lib^f  has  been  raised  which 
does  not  seem  to  me  to  be  entitled  to  the  support  of  your  Lordships. 
Libel  is  a  tortious  act.  What  does  the  tort  consist  in  ?  It  consists  in 
using  language  which  others  knowing  the  circumstances  would  reason- 
ably think  to  be  defamatory  of  the  person  complaining  of  and  injured 
by  it.  A  person  charged  with  libel  cannot  defend  himself  by  showing 
that  he  intended  in  his  own  breast  not  to  defame,  or  that  he  intended 
not  to  defame  the  plaintifiF,  if  in  fact  he  did  both.  He  has  none  the 
less  imputed  something  dii^p*aceful  and  has  none  the  less  injured  the 
plaintiff.  A  man  in  good  faith  may  publish  a  Ubel  believing  it  to  be 
true,  and  it  may  be  found  by  the  jury  that  he  acted  in  good  faith 
believing  it  to  be  true,  and  reasonably  believing  it  to  be  true,  but  that 
in  fact  the  statement  was  false.  Under  those  circumstances  he  has  no 
defence  to  the  action,  however  excellent  his  intention.  If  the  inten- 
tion of  the  writer  be  immaterial  in  considering  whether  the  matter 
written  is  defamatory,  I  do  not  see  why  it  need  be  relevant  in  consid- 
ering whether  it  is  defamatory  of  the  plaintiff.  The  writing,  according 
to  the  old  form,  must  be  malicious,  and  it  must  be  of  and  concerning 
the  plaintiff.  Just  as  the  defendant  could  not  excuse  himself  from 
malice  by  proving  that  he  wrote  it  in  the  most  benevolent  spirit,  so  he 
cannot  show  that  the  libel  was  not  of  and  concerning  the  plaintiff  by 
proving  that  he  never  heard  of  the  plaintiff.  His  intention  in  both 
respects  equally  is  inferred  from  what  he  did.  His  remedy  is  to  ab- 
stain from  defamatory  words. 

It  is  suggested  that  there  was  a  misdirection  by  the  learned  judge 
in  this  case.  I  see  none.  He  lays*  down  in  his  summing  up  the  law 
as  follows:  "  The  real  point  upon  which  your  verdict  must  turn  is, 
ought  or  ought  not  sensible  and  reasonable  people  reading  this  article 
to  think  that  it  was  a  mere  imaginary  person  such  as  I  have  said  — 
Tom  Jones,  Mr.  Pecksniff  as  a  humbug,  Mr.  Stiggins,  or  any  of  that 
sort  of  names  that  one  reads  of  in  Hterature  used  as  tjrpes  ?  If  you 
think  any  reasonable  person  would  think  that,  it  is  not  actionable  at 
all.  If,  on  the  other  hand,  you  do  not  think  that,  but  think  that 
people  would  suppose  it  to  mean  some  real  person  —  those  who  did 
not  know  the  plaintiff  of  course  would  not  know  who  the  real  person 
was,  but  those  who  did  know  of  the  existence  of  the  plaintiff  would 
think  that  it  was  the  plaintiff  —  then  the  action  is  maintainable,  sub- 
ject to  such  damages  as  you  think  under  all  the  circmnstances  are  fair 
and  right  to  give  to  the  plaintiff." 

I  see  no  objection  in  law  to  that  passage.  The  damages  are  cer- 
tainly heavy,  but  I  think  yoiu*  Lordships  ought  to  remember  two 


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CHAP.  VI.]  MCPHERSON  V.  DANIELS  677 

things.  The  first  is  that  the  jury  were  entitled  to  think,  in  the  ab- 
sence of  proof  satisfactory  to  them  (and  they  were  the  judges  of  it), 
that  some  ingredient  of  recklessness,  or  more  than  recklessness,  en- 
tered into  the  writing  and  the  publication  of  this  article,  especially 
as  Mr.  Jones,  the  plaintiff,  had  been  employed  on  this  very  newspaper, 
and  his  name  was  well  known  in  the  paper  and  also  well  known  in  the 
district  in  which  the  paper  circulated.  In  the  second  place  the  jury 
were  entitled  to  say  this  kind  of  article  is  to  be  condemned.  There  is 
no  tribunal  more  fitted  to  decide  in  regard  to  publication,  especially 
publications  in  the  newspaper  Press,  whether  they  bear  a  stamp  and 
character  which  ought  to  enlist  sympathy  and  to  secure  protection. 
If  they  think  that  the  license  is  not  fairly  used  and  that  the  tone  and 
style  of  the  libel  is  reprehensible  and  ought  to  be  checked,  it  is  for 
the  jury  to  say  so;  and  for  my  part,  although  I  think  the  damages 
are  certainly  high,  I  am  not  prepared  to  advise  your  Lordships  to 
interfere,  especially  as  the  Court  of  Appeal  have  not  thought  it  right 
to  interfere,  with  the  verdict. 
Lords  Atkinson,  Gorell,  and  Shaw  of  Dunfermline  concurred. 

Appeal  dismissed} 


Mcpherson  v.  daniels 

In  the  King's  Bench,  MicHASLBiAs  Term,  1829. 
Reported  in  10  BamewaU  &  CreeexoeU,  263. 

Slander  for  an  imputation  of  insolvency.  The  defendant  pleaded 
that  at  the  time  of  uttering  the  said  words  he  declared  that  he  had 
heard  and  been  told  the  same  from  and  by  one  T.  W.  Woor.  General 
demurrer.* 

LriTLEDALE,  J.  For  the  reasons  already  given  by  my  Brother 
Bayley,  I  think  that  the  plea  is  bad;  but  with  reference  to  the  reso- 
lution in  Lord  Northampton's  case,  I  will  say  a  few  words.  That 
resolution  has  been  frequently  referred  to  withhi  the  last  thirty  years, 
and  though  not  expressly  overruled  has  been  generally  disapproved  of. 
The  latter  part  of  that  resolution  is  extra-judicial,  for  it  was  not  neces- 
sary to  come  to  any  resolution  respecting  private  slander  in  the  Star 
Chamber.  It  is  somewhat  inconsistent  with  the  third  resolution, 
where  it  is  laid  down,  "  that  if  one  hear  false  and  horrible  rumors, 
either  of  the  king  or  of  any  of  the  grandees,  it  is  not  lawful  for  him  to 
relate  to  others  that  he  heard  J.  S.  say  such  false  and  horrible  words, 
for  if  it  should  be  lawful,  by  this  means  they  may  he  publisfied  genet- 

»  Compare  Northrop  v  Tibbies,  (C.  C.  A.)  215  Fed.  99.  See  Smith,  Jones  v, 
Hulton,  Three  Ck)nflictmg  Views  as  to  a  Question  of  Defamation,  60  University  of 
Pennsylvania  Law  Rev.  365,  461. 

*  The  statement  of  the  pleadings  is  abridged,  and  only  the  opinion  of  Little- 
dale,  J.,  is  given.    Bayley  and  Pance,  JJ.,  concurred. 


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678  MCPHERSON  V.  DANIELS  [CHAP.  VL 

oQy."  It  was  resolved  then,  that  in  the  ease  of  scanddum  mctgnaium 
it  was  not  lawful  to  repeat  slander,  because,  if  it  was,  it  might  circulate 
generally.  Now  the  same  inconvenience,  viz.  the  general  pubUcation 
of  slander,  though  differing  in  degree,  would  follow  from  the  repetition 
of  slander  in  either  case.  The  fourth  resolution,  however,  in  terms, 
perhaps  does  not  go  the  length  of  saying  that  a  defendant  may  justify 
the  repetition  of  slander  generally,  but  only  that  he  may  justify  under 
certain  circumstances.  Assuming  that  it  imports  that  a  defendant 
may  justify  the  repetition  of  slander  generally,  by  showing  that  he 
named  his  original  author,  I  think  that  it  is  not  law. 

The  declaration,  which  contains  a  technical  statement  of  the  facts 
necessary  to  support  the  action,  allies  that  the  defendant  falsely  and 
maliciously  published  the  slander  to  the  plaintiff's  damage.  In  order 
to  maintain  such  an  action,  there  must  be  malice  in  the  defendant  and 
a  damage  to  the  plaintiff,  and  the  words  must  be  imtrue.  Where 
words,  falsely  and  maliciously  spoken,  as  in  this  case,  are  actionable 
in  themselves,  the  law  prima  facie  presumes  a  consequent  damage 
without  proof.  In  other  cases  actual  damage  must  be  proved.  To 
constitute  a  good  defence,  therefore,  to  such  an  action,  where  the  pub- 
lication of  the  slander  is  not  intended  to  be  denied,  the  defendant  must 
negative  the  charge  of  malice  (which  in  its  legal  sense  denotes  a  wrong- 
ful act  done  intentionally  without  just  cause  or  excuse),  or  show  that 
the  plaintiff  is  not  entitled  to  recover  damages.  It  is  competent  to  a 
defendant,  upon  the  general  issue,  to  show  that  the  words  were  not 
spoken  maUciously ;  by  proving  that  they  were  spoken  on  an  occasion, 
or  imder  circumstances  which  the  law,  on  grounds  of  public  poUcy, 
allows,  as  in  the  course  of  a  parliamentary  or  judicial  proceeding,  or 
in  giving  the  character  of  a  servant.  But  if  the  defendant  relies  upon 
the  truth  as  an  answer  to  the  action,  he  must  plead  that  matter  spe- 
cially; because  the  truth  is  an  answer  to  the  action,  not  because  it 
negatives  the  charge  of  maUce  (for  a  person  may  wrongfully  or  mali- 
ciously utter  slanderous  matter  though  true,  and  thereby  subject  him- 
self to  an  indictment),  but  because  it  shows  that  the  plaintiff  is  not 
entitled  to  recover  damages.  For  the  law  will  not  permit  a  man  to 
recover  damages  in  respect  of  an  injury  to  a  character  which  he  either 
does  not,  or  ought  not,  to  possess.  Now,  a  defendant,  by  showing 
that  he  stated  at  the  time  when  he  published  slanderous  matter  of  a 
plaintiff,  that  he  heard  it  from  a  third  person  does  not  negative  the 
charge  of  maUce,  for  a  man  may  wrongfuDy  and  maliciously  repeat 
that  which  another  person  may  have  uttered  upon  a  justifiable  occa- 
sion. Such  a  plea  does  not  show  that  the  slander  was  published  on  an 
occasion,  or  under  circiunstances  which  the  law,  on  groimds  of  public 
policy,  allows.  Nor  does  it  show  that  the  plaintiff  has  not  sustained, 
or  is  not  entitled  in  a  court  of  law  to  recover,  damages.  As  great  an 
injury  may  accrue  from  the  wrongful  repetition,  as  from  the  first  pub- 
lication of  slander,  the  first  utterer  may  have  been  a  person  insane. 


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CHAP.  VI.]        THORLEY  V.  LORD  KERRY  679 

or  of  bad  character.  The  person  who  repeats  it  gives  greater  weight 
to  the  slander.  A  party  is  not  the  less  entitled  to  recover  damages 
In  a  court  of  law  for  injurious  matter  published  concerning  him,  be- 
cause another  person  previously  publidied  it.  That  shows  not  that 
the  plaintiff  has  been  guilty  of  any  misconduct  which  renders  it  imfit 
that  he  .should  recover  damages  in  a  court  of  law,  but  that  he  has 
been  wronged  by  another  person  as  well  as  the  defendant;  and  may, 
consequently  if  the  slander  was  not  published  by  the  first  utterer  on 
a  lawful  occasion,  have  an  action  for  damages  against  that  person  as 
well  as  the  defendant.  It  seems  to  me,  therefore,  that  such  a  plea  is 
not  an  answer  to  an  action  for  slander,  because  it  does  not  negative 
the  charge  of  malice,  nor  does  it  show  that  the  plaintiff  is  not  entitled 
to  recover  damages.  Judgment  far  plaintiff.^ 


THORLEY  V.  LORD  KERRY 

In  the  Exchequer  Chamber,  May  9, 1812. 

Reported  in  4  Taunton,  355. 

This  was  a  writ  of  error  brought  to  reverse  a  judgment  of  the 
Court  of  King's  Bench.  "  This  was  an  action  for  a  Ubel  contained  in 
a  letter  addressed  to  Lord  Kerry,  and  sent  open  by  one  of  his  servants, 
who  became  acquainted  with  its  contents.  The  hbel  charged  his  Lord- 
ship with  being  a  hypocrite,  and  using  the  cloak  of  religion  for  un- 
worthy purposes."  *  Upon  not  guilty  pleaded,  the  cause  was  tried  at 
the  Surrey  spring  assizes,  1809,  when  tiie  writing  of  the  letter  by  the 
defendant  was  proved,  and  that  he  delivered  it  unsealed  to  a  servant 
to  carry,  who  opened  and  read  it;  a  verdict  was  found  for  the  plaintiff 
with  £20  damages,  and  judgment  passed  for  the  plaintiff  without 

^  That  the  defendant  repeated  a  defamation,  giving  the  name  of  the  author, 
seems  originally  to  have  been  a  justification.  Northampton's  Case,  12  Rep.  134 
(Fourth  Resolution).  But  the  name  of  the  author  was  to  be  ^v?n  at  the  tune  of 
repetition,  and  not  for  the  first  time  in  the  plea.  Davis  v,  Lewis,  7  T.  R.  17.  The 
words,  furthermore,  had  to  be  given  with  sufficient  exactness  to  ground  an  action 
against  the  author.  Maitland  v.  Goldney,  2  East,  426.  Doubts  were  thrown  upon 
the  validity  of  this  justification  in  Lewis  v.  Walter,  4  B.  &  Al.  605.  The  whole 
doctrine  was  repudiated,  as  to  libel,  in  De  Crespigny  v.  Wellesley,  5  Bing.  392,  and 
Tidman  v,  Ainslie,  10  Ex.  63;  and  as  to  slander,  in  McPherson  v.  Daniels;  Watkin 
p,  HaU,  L.  R.  3  Q.  B.  396. 

See  to  same  effect  Age-Herald  Pub.  Co.  v.  Waterman,  188  Ala.  272;  Washington 
Herald  Co.  v.  Berry,  41  App.  D.  C.  322;  Brewer  v.  Chase,  121  Mich.  526;  Hagener 
V.  PuUtzer  Pub.  Co.,  172  Mo.  App.  436;  VaUery  v.  State,  42  Neb.  123;  WaUrng  v. 
Commercial  Advertiser,  165  App.  Div.  26;  Galveston  Tribune  v.  Johnson,  (Tex. 
Civ.  App.)  141  S.  W.  302.    See  also  Whitney  v,  Moignard,  24  Q.  B.  D.  630. 

In  Speight  v.  Goenay,  60  L.  J.  Q.  B.  231,  the  words  were  not  actionable  without 
special  damage  and  the  special  damage  resulted  only  from  unauthorized  repetition 
by  a  third  person. 

»  This  short  statement  of  the  case,  taken  from  3  Camp.  214,  has  been  sub- 
stituted for  the  declaration  which  is  set  out  at  considerable  length  in  the  original 
report. 


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680  THORLEY  t;.  LORD  KERRY  [CHAP.  VI. 

argument  in  the  court  below.    The  plaintiff  in  error  assigned  the 
general  errors. 

Mansfield,  C.  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error,  brought  to  reverse  a  judgment  of  the  Court 
of  King's  Bench,  in  which  there  was  no  argument.  It  was  an  action 
'  on  a  libel  published  in  a  letter  which  the  bearer  of  the  letter  happened 
to  open.  The  declaration  has  certainly  some  very  curious  recitals. 
It  recites  that  the  plaintiff  was  tenant  to  Archibald  Lord  Douglas  of 
a  messuage  in  Petersham ;  that,  being  desirous  to  become  a  parishioner 
itnd  to  attend  the  vestry,  te  agreed  to  pay  the  taxes  of  the  said  house, 
that  the  plaintiff  in  error  was  churchwarden,  and  that  the  defendant 
in  error  gave  him  notice  of  his  agreement  with  Lord  Douglas;  and 
that  the  plaintiff  in  error,  intending  to  have  it  believed  that  the  said 
earl  was  guilty  of  the  offences  and  misconducts  thereinafter  men- 
tioned (offences  there  are  none,  misconduct  there  may  be),  wrote  the 
letter  to  the  said  earl  which  is  set  forth  in  the  pleadings.  There  is  no 
doubt  that  this  was  a  libel,  for  which  the  plaintiff  in  error  might  have 
been  indicted  and  punished;  because,  though  the  words  impute  no 
punishable  crimes,  they  contain  that  sort  of  imputation  which  is  cal- 
culated to  vilify  a  man,  and  bring  him,  as  the  books  say,  into  hatred, 
contempt,  and  ridicule;  for  all  words  of  that  description  an  indictment 
lies;  and  I  should  have  thought  that  the  peace  and  good  name  of  in- 
dividuals was  suflSciently  guarded  by  the  terror  of  this  criminal  pro- 
ceeding in  such  cases.  The  words,  if  merely  spoken,  would  not  be  of 
themselves  sufficient  to  support  an  action.  But  the  question  now  is, 
whether  an  action  will  lie  for  these  words  so  written,  notwithstanding 
such  an  action  would  not  lie  for  them  if  spoken;  and  I  am  very  sorry 
it  was  not  discussed  in  the  Court  of  King's  Bench,  that  we  might  have 
had  the  opinion  of  all  the  twelve  judges  on  the  point,  whether  there  be 
any  distinction  as  to  the  right  of  action  between  written  and  parol 
scandal;  for  myself,  after  having  heard  it  extremely  well  argued,  and 
especially,  in  this  case,  by  Mr.  Bamewall,  I  cannot,  upon  principle, 
make  any  difference  between  words  written  and  words  spoken,  as  to 
the  right  which  arises  on  them  of  bringing  an  action.  For  the  plain- 
tiff in  error  it  has  been  truly  urged,  that  in  the  old  books  and  abridg- 
ments no  distinction  is  taken  between  words  written  and  spoken. 
But  the  distinction  has  been  made  between  written  and  spoken  slan- 
der as  far  back  as  Charles  the  Second's  time,  and  the  difference  has 
been  recognized  by  the  courts  for  at  least  a  century  back.  It  does 
not  appear  to  me  that  the  rights  of  parties  to  a  good  character  are 
insufficiently  defended  by  the  criminal  remedies  which  the  law  gives, 
and  the  law  gives  a  very  ample  field  for  retribution  by  action  for 
words  spoken  in  the  cases  of  special  damage,  of  words  spoken  of  a 
man  in  his  trade  or  profession,  of  a  man  in  office,  of  a  magistrate  or 
officer;  for  all  these  an  action  lies.  But  for  mere  general  abuse  spoken, 
no  action  lies.    In  the  arguments  both  of  the  judges  and  counsel,  in 


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CHAP.  VI.]         THORLEY  V.   LORD  KERRY  681 

ahnost  all  the  cases  in  which  the  question  has  been,  whether  what  is 
contained  in  a  writing  is  the  subject  of  an  action  or  not,  it  has  been 
considered  whether  the  words,  if  spoken,  would  maintain  an  action. 
It  is  curious  that  they  have  also  adverted  to  the  question,  whether  it 
tends  to  produce  a  breach  of  the  peace;  but  that  is  wholly  irrelevant, 
and  is  no  ground  for  recovering  damages;  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  the  malignity, 
but  for  the  damage  sustained.  So  it  is  argued  that  written  scandal  is 
more  generally  diffused  than  words  spoken,  and  is,  therefore,  action- 
able; but  an  assertion  made  in  a  public  place,  as  upon  the  Royal 
Exchange,  concerning  a  merchant  in  London,  may  be  much  more 
extensively  diffused  than  a  few  printed  papers  dispersed,  or  a  private 
letter;  it  is  true  that  a  newspaper  may  be  very  generally  read,  but 
that  is  all  casual.  These  are  the  arguments  which  prevail  on  my  mind 
to  repudiate  the  distinction  between  written  and  spoken  scandal; 
but  that  distinction  has  been  established  by  some  of  the  greatest 
names  known  to  the  law,  Lord  Hardwicke,  Hale,  I  beUeve  Holt,  C.  J., 
and  others.  Lord  Hardwicke,  C.  J.,  especially  has  laid  it  down  that  an 
action  for  a  Ubel  may  be  brought  on  words  written,  when  the  words, 
if  spoken,  would  not  sustain  it.  Com.  Dig.  tit.  Libel,  referring  to  the 
case  in  Fitzg.  122,  253,  says  there  is  a  distinction  between  written  and 
spoken  scandal;  by  his  putting  it  down  there  as  he  does,  as  being 
the  law,  without  making  any  query  or  doubt  upon  it,  we  are  led  to 
suppose  that  he  was  of  the  same  opinion.  I  do  not  now  recapitulate 
the  cases,  but  we  cannot,  in  opposition  to  them,  venture  to  lay  down 
at  this  day  that  no  action  can  be  maintained  for  any  words  written, 
for  which  an  action  could  not  be  maintained  if  they  were  spoken; 
upon  these  grounds  we  think  the  judgment  of  the  Court  of  King's 
Bench  must  be  affirmed.  The  purpose  of  this  action  is  to  recover  a 
compensation  for  some  damage  supposed  to  be  sustained  by  the  plain- 
tiff by  reason  of  the  libel.  The  tendency  of  the  libel  to  provoke  a 
breach  of  the  peace,  or  the  degree  of  maUgnity  which  actuates  the 
writer,  has  nothing  to  do  with  the  question.  If  the  matter  were  for  the 
first  time  to  be  decided  at  this  day,  I  should  have  no  hesitation  in 
saying  that  no  action  could  be  maintained  for  written  scandal  which 
could  not  be  maintained  for  the  words  if  they  had  been  spoken. 

Judgment  affirmed.^ 

*  "When  our  ancestors  years  ago  drew  the  distinction  between  libel  and  slander, 
they  exercised  that  kind  of  wise  discretion  which  they  always  exercised  over  the 
whole  field  of  the  common  law.  It  would  to  my  mind  be  very  dangerous  for  us 
nowadays  to  relax  in  ai^y  way  the  rule  of  law  which  confines  actions  for  spoken 
words,  m  the  absence  of  proof  of  special  damage,  to  a  very  limited  number  of 
cases.^'  Vaughan  Williams,  L.  J.,  in  Dauncey  v.  HoUoway.  [1901]  2  K.  B.  441, 
448.  See  also  A.  L.  Smith,  L.  J.,  Id.  447.  But  compare  Colby  v.  Reynolds,  6  Vt. 
489,  493:  Tillson  v.  Robbins,  68  Me.  295. 

The  distinction  sanctioned  in  the  principal  case  between  oral  and  written 
scandal  still  obtains  in  England  and  the  United  States.   The  definition  of  a  libel  as 


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682  WEBB  V.  BEAVAN  [CHAP.  VI. 


WEBB  V.  BEAVAN 
In  the  Queen's  Bench  Division,  Mat  10, 1883. 

Reported  in  11  Queen's  Bench  Dmsion,  609. 

Demurrer  to  a  statement  of  claim  which  allied  that  the  defendant 
falsely  and  maliciously  spoke  and  published  of  the  plaintiflf  the  words 
following:  "  I  will  lock  you  ''  (meaning  the  plaintiff)  "  up  in  Glouces- 
ter Gaol  next  week.  I  know.enough  to  put  you  "  (meaning  the  plain- 
tiff) ''  there/'  meaning  thereby  that  the  plaintiff  had  been  and  was 
guilty  of  having  committed  some  criminal  offence  or  offences.  The 
plaintiff  claimed  £500  damages. 

Demurrer,  on  the  ground  that  the  statement  of  claim  did  not  allege 
circumstances  showing  that  the  defendant  had  spoken  or  published  of 
the  plaintiff  any  actionable  language,  and  that  no  cause  of  action  was 
disclosed.    Joinder  in  demurrer. 

W.  H.  Nashy  in  suppo^  of  the  demurrer,  contended  that,  in  order 
to  make  the  words  actionable,  the  innuendo  should  have  alleged  that 
they  imputed  an  offence  for  which  the  plaintiff  could  have  been  in- 
dicted, and  that  it  was  not  sufficient  to  all^e  that  they  imputed  a 
<;riminal  offence  merely.  He  referred  to  Odgers  on  Libel  and  Slander, 
p.  54. 

Hammond  Chambers^  contra,  contended  that,  according  to  the 
earlier  authorities,  the  test,  in  ascertaining  whether  words  were  action- 
able per  ae,  was  whether  the  offence  imputed  was  punishable  corporally 
or  by  fine,  and  that  it  was  not  necessary  to  allege  that  the  words  im- 
puted an  indictable  offence.  He  cited  Com.  Dig.  tit.  Action  on  the 
Case  for  Defamation,  D.  5  and  9;  Curtis  v.  Curtis,  10  Bing.  477. 

Pollock,  B.  I  am  of  opinion  that  the  demurrer  should  be  over- 
ruled. The  expression  "  indictable  offence  "  seems  to  have  crept  into 
the  text-books,  but  I  think  the  passages  in  Comjms'  Digest  are  con- 
clusive to  show  that  words  which  impute  any  criminal  offence  are 
actionable  per  se.  The  distinction  seems  a  natural  one,  that  words 
imputing  that  the  plaintiff  has  rendered  himself  liable  to  the  mere 
infliction  of  a  fine  are  not  slanderous,  but  that  it  is  slanderous  to  say 
that  he  has  done  something  for  which  he  can  be  made  to  suffer 
corporally. 

a  written  publication  calculated  to  bring  another  into  hatred,  ridicule,  or  contempt, 
is  also  universally  recognized  in  English-speaking  countries.  As  it  is  a  pure  ques- 
tion of  fact  for  the  jury  whether  the  pubhcation  m  a  given  case  comes  within  this 
definition,  it  has  not  seemed  advisable  to  bring  together  in  this  book  the  multi- 
tudinous instances  which  have  been  passed  upon.  A  full  collection  of  the  cases 
may  be  found  in  Odgers,  Libel  and  Slander,  (5  ed.)  18-38;  Townshend,  Skmder 
and  Libel^  (4  ed.)  203-221;  26  Cyc.  255-264. 

An  action  for  a  libel  made  in  the  course  of  judicial  proceedings  cannot  be  main- 
tained until  the  proceedings  have  terminated  in  favor  of  the  person  defamed, 
Masterson  v.  Brown,  72  Fed.  136. 


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CHAP.  VI.]  BROOKER  V.  COFFIN  683 

Lopes,  J.  I  am  of  the  same  opinion.  I  think  it  is  enough  to  allege 
that  the  words  complained  of  impute  a  criminal  oflFence.  A  great 
number  of  offences  which  were  dealt  with  by  indictment -twenty  years 
ago  are  now  disposed  of  summarily,  but  the  effect  cannot  be  to  alter 
the  law  with  respect  to  actions  for  slander.  Demurrer  overruled} 


BROOKER  V.  COFFIN 
Supreme  Court,  New  York,  November,  1809. 

Reported  in  5  Johnsortj  188. 

Spencer,  J.,  delivered  the  opinion  of  the  court.*  The  first  count 
is  for  these  words,  "  She  is  a  common  prostitute,  and  I  can  prove  it;  '* 
and  the  question  arises,  whether  speaking  these  words  gives  an  action 

^  There  is  great  diversity  of  opinion  as  to  what  words,  imputing  the  commission 
of  a  crime,  are  actionable  per  «6.    The  authorities  may  be  classifi^  as  follows :  — 

I.  Words  imputing  a  criminal  offence  punishable  corporally. 

In  Hawes's  Case,  March,  113  (speaking  against  conmion  prayer);  Heake  v. 
Moulton,  Yelv.  90;  Walden  v,  MitdielL  2  Ventr.  265;  Scoble  v.  Lee,  2  Show.  32 
(regrating);  McCabe  v.  Foot,  15  L.  T.  Rep.  115;  Elliott  v.  Ailsberry,  2  Bibb,  473 
(fornication);  M'Gee  v.  Wilson,  Lilt.  S.  C.  187  (unchastity) ;  Mills  v.  Wimp,  10 
B.  Mon.  417  {semble):  Buck  v.  Hersey,  31  Me.  558  (drunkenness);  Wagaman  v. 
Byers,  17  Md.  183  (adultery);  Birch  v.  Benton,  26  Mo.  153  (whipping  one's  wife); 
Speaker  v,  McKenxie,  26  Mo.  255  (whipping  one's  mother) ;  Billings  v.  Wins,  7  Vt. 
439  ("  he  sns^ed  his  mother  out  of  doors  by  the  hair  of  her  head;  it  was  the  day 
before  she  died  "),  the  words  uttered  were  held  not  to  pve  a  right  of  action,  since 
they. imputed  crimes  punishable  only  by  fine,  or  by  unprisonment  merely  as  a 
consequence  of  the  non-payment  of  tne  fine. 

II.  Words  imputing  a  criminal  offence  and  involving  moral  turpitude.  Sipp  v, 
Coleman,  179  Fed.  997;  Taylor  v.  Gumpert,  96  Ark.  354;  Frisbie  v.  Fowler,  2 
Conn.  707;  Hoag  v.  Hatch,  23  Conn.  585;  Page  v,  Merwin,  54  Conn.  426;  Kennen- 
b^v.  Neff.74Conn.  62;  Yakavicae  ».  Valentukevicious,  84  Conn.  350;  Reitanv. 
Goebel,  33  Minn.  151. 

III.  Words  imputing  a  criminal  offence,  involving  moral  turpitude  and  punish- 
able corporally.  Redway  v.  Gray,  31  Vt.  292  (qualifying  Billings  v.  Wing,  7  Vt. 
439);  Murray  v,  McAllister,  38  Vt.  167. 

IV.  Worcis  imputing  a  criminal  offence  involving  disgrace.  Miller  v.  Parish,  8 
Pick.  384;  Brown  v.  Nickerson,  5  Gray,  1;  Kenney  v.  McLaughlin,  5  Gray,  3; 
Ranger  v,  Goodrich,  17  Wis.  78;  Mayer  v.  Schleichter,  29  Wis.  646;  Gibson  v. 
Gibson,  43  Wis.  23;  Geary  v.  Bennett,  53  Wis.  444. 

V.  Words  imputinga  criminal  offence  subjecting  the  offender  to  infamous  pun- 
ishment. Shipp  V,  McCraw,  3  Murph.  463;  Brady  v,  Wilson,  4  Hawks.  93;  Skinner 
V.  White.  1  Dev.  &  Bat.  471;  Wafi  v.  Hoekins,  5  Ired.  177;  Wilson  v.  Tatum,  8 
Jones,  (N.C.)  300;  McKee  v.  Wilson,  87  N.  C.  300;  Harris  v.  Terry,  98  N.  C.  131. 

VI.  Words  imputing  an  indictable  offence  involving  moral  turpitude,  or  subject- 
ing the  offender  to  an  infamous  punishment.  See  Brooker  v.  Cofl5n,  tn/ra,  and 
cases  cited. 

VII.  Words  imputing  an  indictable  offence  punishable  corporally.  Griffin  w. 
Moore,  43  Md.  246;  Shafer  v.  Ahalt,  48  Md.  171;  Birch  v.  Benton,  26  Mo.  153; 
Curry  v.  Collins,  37  Mo.  324;  Bundy  v.  Hart,  46  Mo.  460;  Lewis  ».  McDaniel,  82 
Mo.  577;  Houston  v.  Woolley,  37  Mo.  App.  15,  24;  Parsons  v.  Henry,  177  Mo. 
App.  329. 

As  to  drfamation  of  a  corporaium,  see  Oram  v,  Hutt,  [19131  1  Ch.  259;  Axton 
Tobacco  Co.  v.  Evenmg  Post  Co.,  169  Ky.  64;  Stone  v.  Textile  Employers  Ass'n, 
137  App.  Div.  655. 

'  Only  the  opinion  of  the  court  is  given. 


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684  BROOKER  V.  COFFIN  [CHAP.  VI. 

without  ailing  special  damage.^  By  the  statute  (1  R.  L.  124),  com- 
mon prostitutes  are  adjudged  disorderly  persons,  and  are  liable  to 
commitment  by  any  justice  of  the  pieace,  upon  conviction,  to  the  bride- 
well or  house  of  correction,  to  be  kept  at  hard  labor  for  a  period  not 
exceeding  sixty  days,  or  until  the  next  general  sessions  of  the  peace. 
It  has  been  supposed  that,  therefore,  to  charge  a  woman  with  being  a 
common  prostitute,  was  charging  her  with  such  an  offence  as  would 
give  an  action  for  the  slander.  The  same  statute  which  authorizes 
the  infliction  of  imprisonment  on  common  prostitutes,  as  disorderly 
persons,  inflicts  the  same  punishment  for  a  great  variety  of  acts,  the 
commission  of  which  renders  persons  liable  to  be  considered  disorderly; 
and  to  sustain  this  action  would  be  going  the  whole  length  of  saying, 
that  every  one  charged  with  any  of  the  acts  prohibited  by  that  statute, 
would  be  entitled  to  maintain  an  action  for  defamation.  Among 
others,  to  charge  a  person  with  pretending  to  have  skill  in  physiog- 
nomy, palmistry,  or  pretending  to  tell  fortunes,  would,  if  this  action 
is  sustained,  be  actionable.  Upon  the  fullest  consideration,  we  are 
inclined  to  adopt  this  as  the  safest  rule,  and  one  which,  as  we  think, 
is  warranted  by  the  cases.  In  case  the  charge,  if  true,  will  subject  the 
party  charged  to  an  indictment  for  a  crime  involving  moral  turpitude, 
or  subject  him  to  an  infamous  punishment,  then  the  words  will  be  in 
themselves  actionable;  *  and  Baron  Comjms  considers  the  test  to  be, 
whether  the  crime  is  indictable  or  not.  1  Com.  tit.  Action  on  the  Case 
for  Defamation,  F,  20.  There  is  not,  perhaps,  so  much  uncertainty 
in  the  law  upon  any  subject  as  when  words  shall  be  in  themselves 
actionable.  From  the  contradiction  of  cases,  and  the  uncertainty  pre- 
vailing on  this  head,  the  court  think  they  may,  without  overleaping 
the  boimds  of  their  duty,  lay  down  a  rule  which  will  conduce  to  cer- 

1  By  54  &  55  Vict.  c.  61,  words  which  impute  imchastity  or  adultery  to  any 
woman  or  girl  are  actionable,  without  special  damage. 

'  This  r^e  has  b^n  approved  in  the  following  cases:  Pollard  v.  Lyon,  91  U.  S. 
225:  Perdue  v,  Burnett,  Minor,  138;  Dudley  v.  Horn,  21  Ala.  379;  Hillhouse  v. 
Peckj  2  St.  &  P.  395;  Heath  v.  Devaughn,  37  Ala.  677;  Kinney  v.  Hosea,  3 
Hamng,  77;  Pleasanton  v.  Kronemeier,  29  Del.  81;  Pledger  v,  Hathcock,  1 
Ga.  550;  Giddens  v.  Mirk,  4  Ga.  364:  Richardson  v,  Roberts,  23  Ga.  215;  Burton 
V.  Burton,  3  Greene,  316;  Halley  v.  Gregg,  74  la.  563;  Wooten  v.  Martin,  140  Ky. 
781;  St.  Martin  v.  Desnoyer,  1  Minn.  156;  West  v.  Hanrahan,  28  Minn.  385; 
Chaplin  v,  Lee,  18  Neb.  440;  Hendrickson  v.  Sullivan,  28  Neb.  329;  McCuen  v. 
Ludlum,  2  Harr.  12;  Johnson  v.  Shields,  25  N.  J.  Law.  116;  Widriff  v.  Oyer,  13 
Johns.  124;  Martin  v.  Stilwell,  13  Johns.  275;  Alexander  v.  Alexander,  9  Wend. 
141;  Case  v,  Buckley,  15  Wend.  327;  Bissell  v.  Cornell,  24  Wend.  354;  Demarest 
V.  Haring,  6  Cow.  76;  Young  v.  Miller,  3  Hill,  21:  Wright  v.  Paige,  3  Keyes,  581, 
3  Trans.  App.  134,  s.  c;  Crawford  v.  Wilson,  4  Barb.  504;  Johii^n  v.  Brown,  57 
Barb.  118;  Quinn  v.  O'Gara,  2  E.  D.  Sm.  388;  Torres  v.  Huner,  150  App.  Div. 
798;  Dial  v.  Holter.  6  Ohio  St.  228;  Allele  v,  Wright,  17  Ohio  St.  238;  HoUings- 
worth  V.  Shaw,  19  Ohio  St.  430;  Davis  v.  Brown,  27  Ohio  St.  326;  Davis  v.  Slad- 
den,  17  Or.  259;  Andres  v.  Koppenheafer,  3  S.  &  R.  255;  Davis  v.  Carey,  141  Pa. 
St.  314;  Lodge  v,  OToole,  20  R.  I.  405;  Gage  v.  Shelton,  3  Rich.  242;  Smith 
V.  Brown,  97  S.  C.  239;  Smith  v.  Smith,  2  Sneed,  473;  McAnally  v.  Williams,  3 
Sneed,  26;  Poe  v.  Grever,  3  Sneed,  664;  Payne  v.  Tancil,  98  Va.  262.  See  Moore 
V,  Francis,  121  N.  Y.  199. 


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CHAP.  VI.]  COOPER  V.   SEAVERNS  685 

tainty,  and  they  therefore  adopt  the  rule  I  have  mentioned  as  the 
criterion.  In  our  opinion,  therefore,  the  first  count  in  the  declaration 
is  defective.  The  defendant  mitst,  therefore,  have  judgment.^ 


COOPER  V.  SEAVERNS 

Supreme  Court,  Kansas,  December  11, 1909. 
Reported  in  81  Kansas  Reports^  267. 

Burch,  J.*  The  common  law  of  England  was  that  verbal  imputations  of  ^ 
unchaste  conduct  on  the  part  of  a  female  were  not  actionable,  in  the  absence 
of  special  damages,  unless  they  related  to  a  person  in  some  office  or  employ- 
ment for  which  moraUty  and  virtue  were  qualifications  (Folkhard,  Law  Slan. 
&  Lib.  7th  ed.,  p.  43),  and  except  in  the  local  courts  of  the  city  of  London,  the 
borough  of  Southwark  and  the  city  of  Bristol,  where  it  was  the  custom  to  whip 
strumpets  at  cart's  tail,  tingling  a  basin  before  them  (Odgers,  Lib.  &  Slan., 
p.  *84).  This  rule  has  been  accounted  for  on  the  supposition  that  in  the  early, 
formative  days  of  the  common  law  social  relations  were  rude,  manners  were 
imrefined,  and  the  people  were  accustomed  to  hearing  gross  and  vulgar  epi- 
thets freely  tossed  about  without  regarding  them  seriously.  (Odgers,  lib.  & 
Slan.,  p.  *86.)  The  case  of  Oxford  &  ux.  v.  Cross,  in  the  king's  bench,  Trinity 
term,  41  Elizabeth  (1599),  Coke's.  Reports  (vol.  2,  p.  307;  part  4,  p.  18a),  is 
cited  in  support  of  this  view,  wherein  it  was  said  that  a  custom  **  to  maintain 
actions  for  such  brabling  words  is  against  law."  Pollock  and  Maitland  dis- 
cover a  better  state  of  civilization  from  the  early  records  than  the  view  in- 
dicated takes  for  granted: 

"  We  should  be  much  mistaken,  however,  if  we  believed  that  the  temporal 
law  of  the  middle  ages  gave  no  action  to  the  defamed.  Nothing  could  be  less 
true  than  that  our  ancestors  in  the  days  of  their  barbarism  could  only  feel 
blows  and  treated  hard  words  as  of  no  account.  Even  the  rude  lex  Salica  de- 
crees that  if  one  calls  a  man  '  wolf '  or  *  hare  '  one  must  pay  him  three  shil- 
lings, while  if  one  calls  a  woman  *  harlot '  and  cannot  prove  the  truth  of  the 
charge,  one  must  pay  her  forty-five  shillings.  The  oldest  English  laws  exact 
bot  and  vnte  if  one  gives  another  bad  names.  .  .  ." 

This  being  true,  a  reason  for  the  rule  must  be  foimd  elsewhere  than  in  any 
essential  brutality  of  the  early  Englishman.    The  doctrine  appears  to  be 

^  Hence  it  Lb  not  actionable  (without  special  damage)  to  call  a  man  a  "  bastard.'' 
Paysse  v.  Paysse,  86  Wash.  349,  or  a  "  blackleg  and  swindler,"  Mclntyre  v.  Frucn- 
ter.  148  N.  Y.  Supp.  786;  or  a  "  rascal,"  Massee  v.  Williams,  207  Mass.  222,  or  to 
cfiJl  a  woman  a  'nt>itch."  Graver  v.  Norton,  114  la.  46;  Sturdivant  v,  Duke,  155 
Ky.  100;  Kerone  v.  Block.  144  Mo.  App.  575;  Blake  v.  Smith,  19  R.  I.  476. 

But  in  Fowler  v.  Dowdney,  2  Moody  &  R.  119.  the  words  "  he  is  a  returned 
convict "  were  held  actionable,  Lord  Denman,  C.  J.^  saying  that  though  the  pun- 
ishment had  been  suffered,  "  still  the  obloquy  remams."  Gainford  v.  Tuke,  Gro. 
Jac.536;  Boston  v.  Tatam,  Gro.  Jac.  623;  Beavort;.Hides,2  Wils.SOO;  Stewarts. 
Howe,  17  HI.  71;  Wiley  v.  Gampbell,  5  T.  B.  Monr.  396;  Krebs  v.  Oliver,  12  Gray, 
239;  Johnson  v.  Dicken,  25  Mo.  580;  Van  Ankin  v.  Westfall,  14  Johns.  233;  Ship 
V.  McGraw,  3  Murphy,  463;  Smith  v.  Stewart,  5  Pa.  St.  372;  Beck  v.  Stitzel,  21 
Pa.  St.  522;  Poe  v.  Grever,  3  Sneed,  (Tenn.)  664  Accord. 

Gompare  Garpenter  v.  Tarrant,  G.  t.  Hardw.  339;  French  v,  Greath,  Breese,  12; 
Barclay  v.  Thompson,  2  Pen.  &  W.  148. 

*  Only  portions  of  the  opinion  are  given. 


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686  COOPER  V.  SEAVERNS  [CHAP.  VI. 

fully  accounted  for  through  the  partition  of  authority  in  England  between 
the  spiritual  and  the  temporal  courts.  (Odgers,  Lib.  &  Slan.,  p.  *86.)  It  is 
familiar  history  that  in  the  middle  ages,  for  reasons  and  by  means  which 
need  not  be  sketched  here,  the  all-powerful  ecclesiastics  acquired  jurisdiction 
over  a  large  portion  of  the  most  important  concerns  of  life  —  testaments, 
matrimony,  and  among  innumerable  others,  defamation.  This  breach  of  the 
social  order  was  regarded  as  a  sin  and  was  punishable  in  the  spiritual  courts 
as  such.  .  .  . 

The  struggle  to  limit  and  define  the  authority  of  the  ecclesiastical  courts 
was  long  and  bitter,  and  frequently  exhibited  some  striking  features.  In  the 
progress  of  the  duel  the  common-law  courts  used  as  their  principal  weapon  the 
king's  writ  of  prohibition  to  restrain  the  exercise  of  jurisdiction  over  causes 
which  they  desired  to  adjudicate.  The  ecclesiastics  returned  the  fire  by  ex- 
communicating those  who  sued  out  such  writs.  By  and  by  an  increasing 
number  of  pecuniary  matters  came  to  be  regarded  as  pertaining  to  things  of 
this  world,  and  the  civil  courts  finally  succeeded  in  maintaining  their  right  to 
administer  relief  in  an  action  on  the  case  where  specific  damages  were  occa- 
sioned by  slanderous  words. 

[After  discussing  the  jurisdiction  of  the  ecclesiastical  courts,  the  opinion 
proceeds:] 

Although  the  English  judges  felt  constrained  to  follow  the  common-law 
rule  until  it  was  superseded  by  act  of  parliament,  it  did  not  satisfy  their 
consciences.  In  1759,  in  the  case  of  Jones  v.  Heme,  in  the  Court  of  King's 
Bench  (2  Wil.  87, 95  Eng.  Rep.,  Full  Reprint,  701),  Chief  Justice  Willes,  after 
holding  it  actionable  to  say  a  man  is  a  forger,  added  that  if  it  were  res  Integra 
he  would  hold  that  calling  a  man  a  rogue  or  a  woman  a  whore  in  public  com- 
pany is  actionable. 

Very  near  the  time  when  this  state  entered  upon  its  separate  constitutional 
existence  the  common-law  rule  fell  under  the  censure  of  some  of  the  ablest 
exponents  of  English  justice. 

[The  opinion  then  sets  forth  a  number  of  judicial  criticisms  of  the  common- 
law  doctrine  and  proceeds:] 

From  the  foregoing  it  appears  that  the  rule  under  consideration  resulted 
solely  from  the  early  seizure  of  jurisdiction  over  slander  by  the  ecclesiastical 
courts,  which  could  not  award  damages  at  all,  and  the  inability  of  the  temporal 
courts  to  strip  that  jurisdiction  from  their  rivals  except  in  cases  involving 
special  damages.  It  never  did  rest  upon  any  principle  of  right  or  justice  or 
any  decent  regard  for  character.  It  was  unsuited  to  the  true  genius  and  real 
needs  of  the  people  over  whom  it  tyrannized,  even  from  the  earliest  times.  It 
created  anomalies  in  the  law  of  defamation  which  rendered  that  law  absurd 
and  grotesque.  For  example,  words  "  touching  "  some  disreputable  good-for- 
nothing  in  his  work  or  trade  were  actionable.  The  most  sensitive,  cultivated, 
high-bred  woman  could  be  foully  slandered  with  impunity.  Written  ridicule 
of  the  style  of  her  hat  gave  ground  for  exemplary  damages.  She  had  no  redress 
for  spoken  words  inflicting  one  of  the  deepest  wounds  her  sex  can  suffer.  The 
rule  was  not  merely  insufferably  wrong;  it  was  wrong  in  a  matter  of  so  pre- 
cious a  nature  that  it  was  shocking.  It  was  suppressed  because  it  had  long  been 
reprobated  as  odious  and  was  universally  detested.  The  question  now  to  be 
decided  is,  Does  that  rule  obtain  in  this  state  ?  .  .  .  . 

This  is  not  the  case  of  a  principle  which  commands  considerable  approval, 
is  founded  upon  fair  reason,  is  merely  of  questionable  wisdom,  and  which 


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CHAP.  VI.]  LUMBY  V.  ALLDAY  687 

therefore  ought  to  be  followed  until  abrogated  by  the  legislature.  It  ia  the 
case  of  an  outlawed  rule  of  negation  whose  sole  function  has  always  been  to 
thwart  natural  justice  in  one  of  the  dearest  and  tenderest  of  human  interests. 
Therefore  its  rejection  is  justified  by  Duncan  v.  Baker  (21  Kan.  99)  and  Whita- 
ker  V.  Hawley  (25  Kan.  674),  supra. 

The  world  is  censorious,  and  a  woman's  or  a  maiden's  reputation  for  mod- 
esty and  chastity  is  an  asset  of  inestimable  value.  Its  loss  renders  her  poor 
indeed.  Injury  in  fact  is  the  necessary  result  of  such  a  deprivation,  whether  or 
not  the  sufferer  can  point  to  specific  damage  in  a  few  paltry  dollars  or  to 
liability  to  a  trifling  fine  if  the  charge  were  true.  Therefore  the  pleading  of 
special  damages  as  a  basis  for  relief  ought  to  be  treated  as  a  useless  fiction, 
like  the  one  condemned  in  Anthony  v.  Norton  (60  Kan.  341),  supra. 

Taking  into  consideration  the  origin  and  history  of  the  rule,  the  reason 
supporting  it,  its  character,  its  consequences,  and  the  degree  of  its  appositeness 
to  our  constitution  and  system  of  laws,  it  does  not  apply  to  the  conditions  or 
meet  the  needs  of  the  people  of  this  state,  and  consequently  it  is  not  a  part  of 
the  law  of  this  state. 

This  problem  has  been  met  and  solved  by  different  states  of  the  American 
Union  in  different  ways.  In  some  the  rule  is  obediently  observed.  In  some 
it  is  followed  imder  protest  —  is  characterized  as  a  disgrace  to  the  state  — 
but  stOl  is  followed.  In  some  statutes  have  relieved  from  its  iniquity  in  whole 
or  in  part.  In  some  it  is  frankly  repudiated  by  the  courts  because  it  lacks  the 
sanction  of  reason  and  justice.  This  court  has  no  legislative  functions.  As 
Lord  Campbell  said,  it  is  here  only  to  declare  the  law.  Under  the  statute  of 
1868  it  must  determine  whether  a  rule  of  the  common  law  invoked  in  a  judicial 
proceeding  contravenes  the  constitution  or  statutes  of  the  state,  or  has  been 
modified  by  judicial  decision,  and  whether  it  is  adapted  to  the  conditions  and 
is  suitable  to  the  needs  of  the  people  of  the  state.  This  duty  has  been  dis- 
charged in  the  present  case.^ 


LUMBY  V.  ALLDAY 

In  the  ExCHEQTTEBy  HiLARY  TeRM,  1831. 
Reported  in  1  Crompton  A  Jervis,  301. 

AcnoN  for  words. 

The  judgment  of  the  court  was  now  delivered  by 

Bayley,  B.*  This  case  came  before  the  court  upon  a  rule  nisi  to 
enter  a  nonsuit.  The  ground  of  motion  was  that  the  words  (in  slander) 
proved  upon  the  trial  were  not  actionable. 

Two  points  were  discussed  upon  the  motion :  one,  whether  the  words 
were  actionable  or  not;  and  tiie  other,  whether  this  was  properly  a 
ground  of  nonsuit. 

The  declaration  stated  that  the  plaintiff  was  clerk  to  an  incor- 
porated company,  called  the  Birmingham  and  Staffordshire  Gas  Light 

>  See  also  Keck  v.  Shepard,  (Ark.)  180  S.  W.  501  (statutory);  Graver  v.  Nor- 
ton, 114  la.  46:  Hahn  w.  Lumpa,  158  la.  560;  Traylor  v.  White,  185  Mo.  App.  325 
(statutory);  Culver  v.  Marx,  157  Wis.  320.  On  the  whole  subject,  see  Veeder, 
History  and  Theory  of  the  Law  of  Defamation,  4  Columbia  Law  Rev.  33,  52. 

>  Only  the  opinion  of  the  court  is  given. 


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688  LUMBY  V.  ALLDAY  [CHAP.  VI. 

Company,  and  had  behaved  himself  as  such  with  great  propriety,  and 
thereby  acquired,  and  was  daily  acquiring,  great  gains;  but  that  the 
defendant,  to  cause  it  to  be  believed  that  he  was  imfit  to  hold  his 
situation,  and  an  improper  person  to  be  employed  by  the  company, 
and  to  cause  him  to  be  deprived  of  his  situation,  spoke  the  words 
complained  of  in  the  declaration,  viz.:  "  You  are  a  fellow,  a  disgrace 
to  the  town,  unfit  to  hold  your  situation,  for  your  conduct  with  whores. 
I  will  have  you  in  the  '  Argus.'  You  have  bought  up  all  the  copies 
of  the  '  Argus,'  knowing  you  have  been  exposed.  You  may  drown 
yourself,  for  you  are  not  fit  to  Uve,  and  are  a  disgrace  to  the  situation 
you  hold." 

The  objection  to  maintaining  an  action  upon  these  words  is,  that  it 
is  only  on  the  ground  of  the  plaintiff  being  clerk  to  the  company  that 
they  can  be  actionable;  that  it  is  not  alleged  that  they  are  spoken  of 
him  in  reference  to  his  character  or  conduct  as  clerk;  that  they  do  not, 
from  their  tenor,  import  that  they  were  spoken  with  any  such  refer- 
ence; that  they  do  not  impute  to  him  the  want  of  any  qualification 
such  as  a  clerk  ought  to  have,  or  any  misconduct  which  would  make 
him  unfit  to  dischai^  faithfully  and  correctly  all  the  duties  of  such 
a  clerk. 

The  plaintiff  relied  on  the  rule  laid  down  by  De  Grey,  C.  J.,  in 
Onslow  V.  Home,  3  Wils.  177,  "  that  words  are  actionable  when  spoken 
of  one  in  an  office  of  profit,  which  may  probably  occasion  the  loss  of  his 
office;  or  when  spoken  of  persons  touching  their  respective  professions, 
trades,  and  business,  and  do  or  may  probably  tend  to  their  damage." 
The  same  case  occurs  in  Sir  Wm.  Bl.  Rep.  753,  and  there  the  rule  is  ex- 
pressed to  be,  "  if  the  words  be  of  probable  ill  consequence  to  a  person 
in  a  trade  or  profession,  or  an  office."  ' 

The  objection  to  the  rule,  as  expressed  in  both  reports,  appears  to 
me  to  be,  that  the  words  "  probably  "  and  "  probable  "  are  too  indefi- 
nite and  loose,  and  unless  they  are  considered  as  equivalent  to  "  hav- 
ing a  natiuul  tendency  to,"  and  are  confined  within  the  limits,  I  Kave 
expressed  in  stating  the  defendant's  objections,  of  showing  the  want 
of  some  necessary  qualification,  or  some  misconduct  in  the  office,  it 
goes  beyond  what  the  authorities  warrant. 

Every  authority  which  I  have  been  able  to  find,  either  shows  the 
want  of  some  general  requisite,  as  honesty,  capacity,  fidehty,  Ac,  or 
connects  the  imputation  with  the  plaintiff's  office,  trade,  or  business. 
As  at  present  advised,  therefore,  I  am  of  opinion  that  the  charge 
proved  in  this  case  is  not  actionable,  because  the  imputation  it  con- 
tains does  not  imply  the  want  of  any  of  those  qualities  which  a  clerk 
ought  to  possess,  and  because  the  imputation  has  no  reference  to  his 

^  **  We  think  that  the  rule  as  to  words  spoken  of  a  man  in  his  office  or  trade  is 
not  necessarily  confined  to  offices  and  trades  of  the  nature  and  duties  of  which  the 
court  can  take  judicial  notice.  The  only  limitation  of  which  we  are  aware  is,  that 
it  does  not  apply  to  illegal  callings."  Channel,  B.,  in  Foulger  v.  Newcomb,  L.  R.  2 
Ex.  327,  330. 


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CHAP.  VI.]  '  LUMBY  V.  ALLDAY 

conduct  as  clerk.  I  say  as  at  present  advised,  for  the  reason  which  I 
am  about  to  state. 

The  next  question  is,  whether  this  is  properly  a  ground  of  nonsuit; 
and  I  am  of  opinion  that,  under  the  circumstances  of  this  case,  it  is 
not.  The  words  proved  are  nearly  all  the  words  which  the  first  count 
contains;  and  if  the  words  proved  are  not  actionable,  none  of  the  other 
words  contained  in  that  count  are.  When  the  general  issue  is  pleaded 
to  a  count,  it  puts  in  issue  to  be  tried  by  the  jury  the  question,  whether 
the  facts  stated  in  that  count  exist.  The  legal  effect  of  those  facts, 
whether  they  constitute  a  cause  of  action  or  not,  is  not  properly  in 
question,  llie  proper  mode  to  bring  that  legal  effect  into  conaidera- 
tion  is,  before  trial,  to  demur;  after  trial,  to  move  in  arrest  of  judg- 
ment. The  duty  of  the  judge,  under  whose  direction  the  jury  try 
questions  of  fact,  is  not  to  consider  whether  the  facts  charged  give  a 
ground  of  action,  but  to  atesist  the  jury  in  matters  of  law,  which  may 
arise  upon  the  trial  of  those  facts. 

As  the  defendant,  therefore,  in  this  case  puts  in  issue  the  allegations 
in  the  declaration,  and  those  all^ations  were  proved  upon  the  trial, 
we  are  of  opinion  that  the  rule  for  a  nonsuit  ought  to  be  diacharged; 
and,  notwithstanding  the  lapse  of  time,  that  there  ought  to  be  a  rule 
nisi  to  arrest  the  judgment,  if  the  defendant  be  advised  to  take  such 
rule.  Rule  discharged} 

1  Alexander  v.  Angle,  1  Cr.  &  J.  143:  Sibley  v,  Tomlins,  4  Tyrwh.  90;  Doyley 
V,  Roberts.  3  B.  N.  (57835:  Brayne  v.  Cooper,  5  M.  &  W.  249;  James  v.  Brook,  9 
Q.  B.  7;  Dauncey  v.  Holloway,  [1901]  2  K.  B.  441;  Hogg  v.  Dorrah,  2  Porter, 
(Ala.)  212;  Oram  v.  Franklin,  5  Blackf.  42;  Buck  v.  Hersey,  31  Me.  568;  Oakley 
t;.  Farrington,  1  Johns.  Cas.  129;  Van  Tassel  v.  Capron.  1  Den.  250;  Ireland  v, 
McGarvish,  1  Sandf.  155;  Chomley  v,  Watson,  [1907]  Vict.  L.  R.  602  Accord, 

Compare  Ware  v.  Clowney,  24  Ala.  707;  Butler  v.  Howes,  7  Cal.  87;  Fowles  v, 
Bowen,  30  N.  Y.  20. 

''  Some  of  the  cases  have  proceeded  to  a  len^h  which  can  hardly  fail  to  excite 
surprise:  a  clergyman  havmg  failed  to  obtam  redress  for  the  miputation  of 
adultery;  and  a  school-mistress  having  been  declared  incompetent  to  maintain  an 
action  for  a  charge  of  prostitution.  Such  words  were  imdeniably  calculated  to 
injure  the  success  of  the  plaintiffs  in  their  several  professions,  but,  not  being  ap- 
phcable  to  their  conduct  therein,  no  action  lay."  Cord  Denman,  C.  J.,  in  Ayre  v. 
Craven,  2  A.  &  E.  2.    See  Morasse  v.  Brooks,  151  Mass.  567,  568. 

Imputation  of  misconduct  to  a  clergymany  see  Bishop  of  Norwich  t;.  Pricket,  Cro. 
Eliz.  1  (heterodoxy  in  rehgion);  Payne  v.  Bewmorris,  1  Lev.  248  (incontinence); 
Pope  V.  Ramsey,  1  Keb.  542  (knave,  &c);  Chaddock  v.  Briggs,  13  Mass.  248 
(dnmkenness);  Ritchie  v.  Widdemer,  59  N.  J.  Law,  290;  Demarest  v.  Haring,  6 
Cow.  76  (incontinence);  Potter  v.  N.  Y.  Journal,  68  App.  Div.  95;  Hayner  v. 
Cowden,  27  Ohio  St.  292  (drunkenness);  McMillan  v.  Birch,  1  Binney,  178 
(drunkenness);  Starr  v.  Gardner,  6  Up.  Can.  Q.  B.  O.  S.  512  (incontinence;  but 
see,  contra,  Breeze  v.  Sails,  23  Up.  Can.  Q.  B.  94,  incontinence),  holding  the  words 
actionable. 

Parrat  v.  Carpenter,  Cro.  El.  502;  Nicholson  v.  Lyne,  Cro.  El.  94;  Anon.,  Sty. 
49  CorUra.    Compare  Gallwey  v.  Marshall,  9  Ex.  294,  568. 

ImmUation  to  teacher  of  discreditable  conduct  with  pupHs,  Spears  v.  McCoy, 
155  Ky.  1.    Compare  Nicholson  v,  Dillard,  137  Ga.  225. 

Imputation  to  an  officer  of  drunkenness  while  on  duty.  Reilly  v,  Curtis,  83  N.  J. 
Law,  77. 


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690  JONES  V.  LITTLER      '      [CHAP.  VI. 

JONES  V.  LITTLER 
In  the  Exchequer,  January  16, 1841. 

Reported  in  7  Meeson  &  Wdshy^  423. 

Slander.  The  declaration  stated  that  the  plaintiff  was  a  brewer, 
and  that  the  defendant  falsely  and  maliciously  spoke  and  published  of 
and  concerning  him  in  the  way  of  his  trade  as  a  brewer  the  false, 
scandalous,  malicious,  and  defamatory  words  following:  ''  I  '11 " 
(meaning  that  he,  the  defendant,  would)  "bet  £5  to  £1,  that  Mr. 
Jones  "  (meaning  the  plaintiff)  "  was  in  a  sponging-house  for  debt 
within  the  last  fortnight,  and  I  can  produce  the  man  who  locked  him 
up;  the  man  told  me  so  himself."  Whereupon  the  said  Henry  Pye 
then  asked  the  defendant,  "  Do  you  mean  to  say  that  Mr.  Jones, 
brewer,  of  Rose  Hill"  (meaning  and  describing  the  plaintiff),  "has 
been  in  a  sponging-house  within  this  last  fortnight  for  debt  ?  "  and 
thereupon  tiie  defendant  then  replied  to  the  said  Henry  Pye,  and  the 
said  otiier  persons  then  present,  "  Yes,  I  do." 

The  jury  having  returned  a  verdict  for  the  plaintiff,  the  court 
granted  a  rule  to  show  cause  why  there  should  not  be  a  new  trial,  on 
a  suggestion  that  the  learned  judge  ought  to  have  left  it  as  a  question 
to  the  jury  whether  the  words  were  spoken  of  the  plaintiff  in  the  way 
of  his  trade,  and  did  not. 

Parke,  B.  It  is  quite  clear  that  this  rule  ought  to  be  discharged, 
for  the  only  ground  on  which  it  was  granted  has  failed,  inasmuch  as 
the  learned  judge  did  leave  the  question  to  the  jury;  whether  the 
words  were  spoken  of  the  plaintiff  in  his  trade;  and,  indeed,  it  is 
plain  that  the  words  were  so  used,  from  the  fact  that  in  the  conver- 
sation in  question  the  plaintiff  was  spoken  of  as  a  brewer.  Independ- 
ently of  that,  however,  and  even  if  they  were  spoken  of  him  in  his 
private  character,  I  thhik  the  case  of  Stanton  v.  Smith,  2  Ld.  Raym. 
1480,  is  an  authority  to  show  that  the  words  would  have  been  action- 
able, because  they  must  necessarily  affect  him  in  his  trade.  It  is  there 
said,  "  We  were  all  of  opinion  that  such  words  spoken  of  a  tradesman 
must  greatly  lessen  the  credit  of  a  tradesman,  and  be  very  prejudicial 
to  him,  and  therefore  that  they  were  actionable."  That  case  is  distin- 
guishable from  Ayre  v.  Craven,  2  A.  &  E.  2,  and  Doyley  v.  Roberts, 
1  Bing.  N.  C.  135.  In  the  latter  of  those  cases  the  words  were  not 
spoken  of  the  plaintiff  in  his  business  of  an  attorney;  and  in  the 
former  it  did  not  appear  in  what  manner  the  immorality  was  con- 
nected with  the  plaintiff's  profession  of  a  ph3rsician;  and  it  was  pos- 
sible that  such  imputations  of  incorrect  conduct,  out  of  the  line  of 
their  respective  professions,  might  not  injure  their  professional  char- 
acters. But  this  case  is  distinguishable,  because  here  the  imputation 
is  that  of  insolvency,  which  must  be  injmious;  for  if  a  tradesman  be 
incapable  of  paying  all  his  debts,  whether  in  or  out  of  trade,  his  credit 


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CHAP.  VI.]  SECOR  V.  HARRIS  691 

as  a  tradesman,  which  depends  on  his  general  solvency,  must  be  in- 
jured.   The  case  of  Stanton  v.  Smith,  as  it  appears  to  me,  is  good  law, 
notwithstanding  the  observations  of  Coltman,  J.,  in  Doyley  v.  Roberts. 
Alderson  and  Rolfe,  BB.,  concurred.  RiUe  discharged.^ 


SECOR  V.  HARRIS 

Supreme  Court,  New  York,  September,  1854. 

Reported  in  18  Barbaurf  425. 

MonoN  by  the  plaintiff  for  a  new  trial,  upon  a  bill  of  exceptions. 

Mason,  J.  This  is  an  action  for  slander.  Upon  the  trial  of  the  cause  the 
plaintiff  proved  the  following  words,  which  were  also  alleged  in  the  complaint : 
"  Doctor  Secor  killed  my  children."  "  He  gave  them  teaspoonful  doses  of 
calomel,  and  they  died. "  "  Dr.  Secor  gare  them  teaspoonful  doses  of  calomel, 
and  it  killed  them;  they  did  not  live  long  after  they  took  it.  They  died  right 
off,  —  the  san^e  day."  The  plaintiff  was  proved  to  be  a  practising  ph3rsician, 
and  the  evidence  shows  that  he  had  practised  in  the  defendant's  family,  and 
had  prescribed  for  the  defendant's  children,  and  that  the  words  were  spoken  of 
him  in  his  character  of  a  physician.  The  plaintiff  claimed  that  the  words  were 
actionable,  and  that  he  was  entitled  to  have  this  branch  of  the  case,  upon  the 
words,  submitted  to  the  jury.  The  judge  at  the  circuit  held  that  the  words 
were  not  actionable,  and  took  them  from  the  consideration  of  the  jiury.  These 
words,  spoken  of  the  plaintiff  as  a  physician,  are  actionable  per  «e,  whatever 
may  be  said  upon  the  question,  whether  they  impute  a  criminal  offence.  They 
do  not  impute  a  criminal  offence,  unless  there  is  evidence,  arising  from  the 
quantity  of  the  calomel  which  the  defendant  alleged  that  the  pkdntiff  gave 
these  children,  from  which  a  jury  would  be  justified  in  finding  an  intention  to 
kill  them.  One  of  them  was  three  years  of  age,  and  the  other  one  year  and  a 
half.  If  the  natural  result,  which  should  reasonably  be  expected  from  feeding 
children  of  such  tender  years  full  teaspoon  doses  of  calomel,  would  be  certain 
death,  then  it  is  not  a  forced  construction  of  the  words  to  say  that  the  defend- 
ant intended  to  charge  the  plaintiff  with  an  intention  to  kill  these  children,  in 
givmg  them  such  doses.  It  is  not  necessary,  however,  to  say  that  the  judge 
should  have  submitted  this  case  to  the  jury  upon  the  question,  whether  the 
defendant  did  not  intend  to  impute  to  the  plaintiff,  by  these  woids,  a  criminal 
offence.  I  am  quite  inclined  to  think,  however,  that  had  the  judge  submitted 
the  case  to  the  jiury  upon  the  imputation  of  a  criminal  intent  in  these  words, 
and  had  the  jury  fotmd  that  such  intent  was  imputed,  we  should  not  be  justi- 
fied in  setting  aside  their  verdict.  It  is  not  necessary,  however,  to  place  the 
case  upon  this  ground;  for  it  is  certainly  slanderous  to  say  of  a  physician  that 

1  Kempe's  Case,  Dy.  72.  pi.  6:  Stanton  v.  Smith,  2  Ld.  Ray.  1480;  Brown  v. 
Smith,  13  C.  B.  596;  Pacific  Packing  Co.  v,  Bradstreet,  25  Idaho,  696;  Simons  v. 
Bumham,  102  Mich.  189;  Traynor  v.  Sielaff,  62  Minn.  420;  Hynds  v.  Fourteenth 
Street  Store,  159  App.  Div.  766;  Davis  v.  Ruff,  Cheeves,  17  Accord. 

Barnes  v.  Trundy,  31  Me.  321;  Redway  v.  Gray,  31  Vt.  292  Contra. 

See  Bell  v.  Thatcher,  Freem.  276;  Bryant  v.  Loxtoii,  11  Moore,  344;  Marino  v, 
Di  Marco,  41  App.  D.  C.  76  ("  sells  rotten  goods  ");  Taylor  v.  Churchy  E.  D. 
Smith,  287;  Fowles  v.  Bowen,  30  N.  Y.  20;  Bil^en  v.  ULrich,  150  Wb.  632 
(habitual  cheating). 


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692  SECOR  V.  HARRIS  [CHAP.  VI. 

he  killed  these  children  of  such  tender  years,  by  giving  them  teaspoonful  doses 
of  calomel.  The  charge,  to  say  the  least,  imports  such  a  total  ignorance  of  his 
profession  as  to  destroy  all  confidence  in  the  physician.  It  is  a  disgrace  to  a 
physician  to  have  it  believed  that  he  is  so  ignorant  of  this  most  familiar  and 
common  medicine,  as  to  give  such  quantities  thereof  to  such  young  children. 
The  law  is  well  settled  that  words  published  of  a  physician,  falsely  imputing 
to  him  general  ignorance  or  want  of  skill  in  his  profession,  are  actionable,  in 
themselves,  on  the  ground  of  presumed  damage.  Starkie  on  Slander,  100, 110, 
115,  10,  12;  Martyn  v,  Burlmgs,  Cro.  Eliz.  589;  Bacon's  Abr.  title  Slander, 
B;  Watson  v.  Van  Derlash,  Hetl.  69;  Tutler  v.  Alwin,  \l  Mod.  R.  221 ;  Smith 
V.  Taylor,  1  New  R.  196;  Sumner  v.  Utley,  7  Conn.  R.  257.  I  am  aware  that 
it  was  held,  in  the  case  of  Poe  v.  Mondford,  Cro.  El.  620,  that  it  is  not  action- 
able to  say  of  a  physician,  "  He  hath  killed  a  patient  with  physic;  "  and  that, 
upon  the  strength  of  the  authority  of  that  case,  it  was  decided  in  this  court  in 
Foot  V.  Brown,  8  Johns.  64,  that  it  waa  not  actionable  to  say  of  an  attorney  or 
coimsellor,  when  speaking  of  a  part^ular  suit.  "  He  knows  nothing  about  the 
suit;  he  will  lead  you  on  imtil  he  has  undone  you."  These  cases  are  not  sound. 
The  case  of  Poe  v,  Mondford  is  repudiated  in  Bacon's  Abr.  as  authority,  and 
cases  are  referred  to  as  holding  a  contrary  doctrine  (vol.  ix.  pages  49, 60).  The 
cases  of  Poe  t;.  Mondford,  and  of  Foot  v.  Brown,  were  reviewed  by  the  Supreme 
Court  of  Connecticut,  in  the  case  of  Sumner  v.  Utley,  7  Conn.  R.  257,  with 
most  distinguished  ability,  and  the  doctrine  of  those  cases  repudiated.  In  the 
latter  case  it  is  distinctly  held,  that  words  are  actionable  in  themselves,  which 
charge  a  physician  with  ignorance  or  want  of  skill  in  his  treatment  of  a  particu- 
lar patient,  if  the  charge  be  such  as  imports  gross  ignorance  or  unskilfulness. 
To  the  same  effect  is  the  case  of  Johnson  v.  Robertson,  8  Porter's  R.  486,  where 
it  was  held  that  the  following  words  spoken  of  a  physician  in  regard  to  his 
treatment  of  a  particular  case,  "  He  killed  the  child  by  giving  it  too  much 
calomel,"  are  actionable  in  themselves;  and  such  is  the  case  of  Tutler  v,  Alwin, 
11  Mod.  R.  221,  where  it  was  held  to  be  actionable  to  say  of  an  apothecary, 
that  "  he  killed  a  patient  with  physic."  See  also  3  Wilson's  R.  186;  Bacon's 
Abr.  title  Slander,  letter  B,  2,  vol.  ix.  page  49  (Bouv.  ed.).  The  cases  of  Poe  v, 
Mondford  and  Foot  t;.  Brown  have  been  repudiated  by  the  highest  judicial 
tribunal  in  two  of  the  American  States,  while  the  case  of  Poe  v.  Mondford 
seems  to  have  been  repudiated  in  England;  and  I  agree  with  Clinch,  J.,  that 
the  reason  upon  which  that  case  is  decided  is  not  apparent.  I  do  not  go  the 
length  to  say  that  falsehood  may  not  be  spoken  of  a  physician's  practice,  in  a 
particular  case,  without  subjecting  the  party  to  this  action.  A  physician  may 
mistake  the  symptoms  of  a  patient,  or  may  misjudge  as  to  the  nature  of  his 
disease,  and  even  as  to  the  powers  of  medicine,  and  yet  his  error  may  be  of  that 
pardonable  kind  that  will  do  him  no  essential  prejudice,  because  it  is  rather  a 
proof  of  human  imperfection  than  of  culpable  ignorance  or  unskilfulness;  and 
where  charges  are  made  against  a  physician  that  fall  within  this  class  of  cases, 
they  are  not  actionable,  without  proof  of  special  damages.^  7  Conn.  R.  257. 
It  is  equally  true,  that  a  single  act  of  a  ph\'sician  may  evince  gross  ignorance, 
and  such  a  total  want  of  skill,  as  will  not  fail  to  injure  his  reputation,  and  de- 
prive him  of  general  confidence.  When  such  a  charge  is  made  against  a  phy- 
sician, the  words  are  actionable  perse.   7  Conn.  R.  257.   The  rule  may  be  laid 

1  Sumner  v.  Utley,  7  Conn.  257;  Garr  v,  Selden,  6  Barb.  416;  Rodgers  v.  Kline, 
56  Miss.  808;  Lynde  v,  Johnson,  39  Hun.  5  Accord. 


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CHAP.  VI.]  SECOR  V.  HARRIS  693 

down  as  a  general  one  that,  when  the  charge  implies  gross  ignorance  and  un- 
skilfulness  in  his  profession,  the  words  are  actionable  per  ae.  This  is  upon  the 
ground  that  the  law  presumes  damage  to  result,  from  the  very  nature  of  the 
charge.  The  law  in  such  a  case  la^ns  aside  its  usual  strictness;  for  when  the 
presumption  of  damage  is  violent,  and  the  difficulty  of  proving  it  is  consider- 
able, the  law  supplies  the  defect,  and,  by  converting  presumption  into  proof 
secures  the  character  of  the  sufferer  from  the  misery  of  delay,  and  enables  him 
at  once  to  face  the  calumny  in  open  court.  Starkie  on  Sknder,  581.  It  was 
well  said  by  the  learned  Chief  Justice  Hosmer,  in  Simmer  v.  Utley,  7  Conn. 
257,  that,  "  As  a  general  principle,  it  can  never  be  admitted  that  the  practice 
of  a  physician  or  surgeon  in  a  particular  case  may  be  calumniated  with  im- 
punity, unless  special  damage  is  shown.  By  confining  the  slander  to  particu- 
lars, a  man  may  thus  be  ruined  in  detail.  A  calumniator  might  follow  the 
track  of  the  plaintiff,  and  begin  by  falsely  ascribing  to  a  physician  the  killing 
of  three  persons  by  mismanagement,  and  then,  the  mistaking  of  an  artery  for  a 
vein,  and  thus  might  proceed  to  misrepresent  every  single  case  of  his  practice, 
until  his  reputation  should  be  blasted  beyond  remedy.  Instead  of  murdering 
character  by  one  stroke,  the  victim  would  be  cut  successively  in  pieces,  and 
the  only  difference  would  consist  in  the  manner  of  effecting  the  same  result.'' 
It  is  true,  as  was  said  by  the  learned  Chief  Justice  Hosmer  in  that  case,  the 
redress  proposed,  on  the  proof  of  special  damage,  is  inadequate  to  such  a  case. 
Much  time  may  elapse  before  the  f ac|Cof  damage  admits  of  any  evidence ;  and 
then  the  proof  will  always  fall  short  of  the  mischief.  In  the  mean  time  the 
reputation  of  the  calumniated  person  languishes  and  dies;  and  hence,  as  we 
have  before  said,  the  presumption  of  damage  being  vident,  and  the  difficulty 
of  proving  it  considerable,  the  law  supplies  the  defect  by  converting  presump- 
tion of  damage  into  proof:  Starkie  on  Slander,  581;  in  other  words,  the  law 
presumes  that  damages  result  from  the  speaking  of  the  words.  In  the  case 
under  consideration,  the  words  proved  impute  to  the  plaintiff  such  gross  igno- 
rance of  his  profession,  if  nothing  more,  as  would  be  calculated  to  destroy  his 
character  wherever  the  charge  should  be  credited.  It  would  be  calculated  to 
make  all  men  speak  out  and  say,  as  did  the  witness  Richard  Morris,  "  that  it 
was  outrageous,  and  the  plaintiff  ought  not  to  be  permitted  to  practise.''  The 
law  will  therefore  presume  damages  to  result  from  the  speaking  of  the  words, 
and  consequently  hold  the  words  actionable  in  themselves.  The  judge  at  the 
circuit  erred  in  taking  this  branch  of  the  case  from  the  consideration  of  the 
jury,  and  a  new  trial  must  be  granted;  costs  to  abide  the  event  of  the  action. 
Crippen,  J.,  concurred.    Shankland,  J.,  dissented.       New  trial  granted} 

1  Johnson  v.  Robertson,  8  Port.  (Ala.)  486;  Sumner  v.  Utley,  7  Conn.  257;  Love- 
joy  V.  Whitcomb,  174  Mass.  586;  Freisinger  v.  Moore,  65  N.  J.  Law,  286;  Mattice 
w.  Wflcox,  147  N.  Y.  624;  Krug  v.  Pitass,  162  N.  Y.  154,  163  N.  Y.  600;  Lynde  v. 
Johnson,  39  Hun,  12;  Hollingsworth  v.  Spectator  Co^  49  App.  Div.  16;  Mclntyre 
r.  Weinert,  195  Pa.  St.  52;  Holland  v.  Flick,  212  Pa.  St.  201 ;  Gauvreau  v.  Superior 
Co..  62  Wis.  403  Accord.  See  Watson  v.  Vanderlash,  Hetl.  69;  Edsall  v.  Russell, 
4  M.  &  Gr.  1090.  Compare  Twiggar  r.  Ossining  Printing  Co.,  161  App.  Div.  718; 
Larsen  v.  Brooklyn  Eagle,  165  App.  Div.  4. 

Foot  V.  Brown,  8  Johns.  64  Contra.  See  Camp  v.  Martin,  23  Conn.  86;  Pratt  v. 
Pioneer  Co.,  35  Minn.  251. 

The  imputation  of  misconduct  in  an  office  of  honor  but  not  of  profit  is  action- 
able per  «e,  Booth  v.  Arnold,  [1895]  1  Q.  B.  571;  Livingston  v.  McCartin,  [19071 
Vict.  L.  R.  48.  But  the  rule  is  otherwise,  according  to  Alexander  v.  Jenkins,  [1892] 
1  Q.  B.  797,  as  to  the  imputation  of  unfitness  for  such  an  office. 


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694  JOANNES  V.  BURT  [CHAP.  VI. 

SMITH  V.  HOBSON 

In  the  King's  Bench,  TRiNirr  Tebm,  1647. 
Reported  in  Style,  112. 

Smith,  an  innkeeper  in  Warwick,  brought  an  action  upon  the  case 
against  Hobson  for  speaking  these  words:  ''  Colonel  I^rton  had  the 
French  pox,  and  hath  set  it  in  the  house  "  (meaning  the  plaintiflF's 
house),  "  and  William  Smith  and  his  wife  "  (meaning  the  plaintiff 
and  his  wife)  "have  it,  and  all  you."  The  plaintiff  hath  a  verdict. 
The  defendant  moves  in  arrest  of  judgment,  and  for  cause  shows,  that 
the  words  are  not  actionable;  for  the  words  are,  that  Colonel  Egerton 
hath  set  the  French  pox  in  the  house,  which  is  impossible;  for  the 
house  could  not  have  the  pox,  and  the  words,  "  William  Smith  and  his 
wife  have  it,"  shall  not  be  meant  that  they  have  the  pox,  but  the 
house,  for  that  is  the  next  antecedent  to  the  words,  to  which  they  shall 
refer.  Roll,  J.,  held  the  words  here  actionable,  and  bid  the  plaintiff 
take  his  judgment,  if  cause  were  not  shown  to  the  contrary  Saturday 
following.    Judgment  was  afterwards  given  accordingly.^ 


JOANNES  V.  BURT 
Supreme  Judicial  Coubt,  Massachusetts,  January  Term,  1863. 

Reported  in  6  AUen,  336. 

Hoar,  J.*  The  declaration  is  in  tort  for  slander,  by  orally  imputing 
insanity  to  the  plaintiff.  We  are  aware  of  no  authority  for  maintain- 
ing such  an  action,  without  the  averment  of  special  damage.  The 
authorities  upon  which  the  plaintiff  relies  are  both  cases  of  libel.  The 
King  V.  Harvey,  2  B.  &  C.  257;  Southwick  v.  Stevens,  10  Johns.  443. 
An  action  for  oral  slander,  in  charging  the  plaintiff  with  disease,  has 
been  confined  to  the  imputation  of  such  loathsome  and  infectious 

1  Brook  i;.  Wife,  Cro.  El.  878;  Davis  v,  Taylor,  Cro.  El.  648;  Garford  v.  Clerk, 
Cro.El.857;  Miller's  Case,  Cro.  Jac.  430;  Cnttal».Homer,  Hob.2196;  Elyottv. 
Blague,  Sty.  283;  Marshall  v.  Chickall,  1  Sid.  50;  Comminff's  Case,  2  Sid.  5; 
Lymbe  i;.  Hockly,  1  Lev.  205:  Grimes  v.  Lovel,  12  Mod.  242;  Clifton  v.  Wells,  12 
^lod.  634;  Whitfield  v,  Powel,  12  Mod.  248:  Bloodworth  v.  Gray,  7  M.  &  G.  334; 
Watson  V.  McCarthy,  2  Ga.  57;  Nichols  v.  Guy,  2  Ind.  82;  McDonald  v,  Nugent, 
122  la.  651 ;  Meteye  v.  Times  Co.,  47  La.  Ann.  824 :  Golderman  v.  Steams,  7  Gray, 
181;  Williams  v.  Holdredge,  22  Barb.  396;  Hewitt  v.  Mason,  24  How.  Pr.  366; 
Upton  V,  Upton,  51  Hun,  184;  Simpson  v.  Press  Co.,  33  Misc.  228;  Kaucher  v, 
Bunn,  29  Ohio  St.  62;  Irons  v.  Field,  9  R.  I.  216  Accord. 

Bury  V,  Chappel,  Golds.  135;  James  v.  Rutlech,  4  Rep.  17  a;  Himt  v.  Jones,  Cro. 
Jac.  499;  Camord  v.  Knight,  Cro.  Jac.  614  Contra. 

In  Taylor  v.  HaU,  2  Strange,  1189,  it  was  held  not  actionable  to  say  that  plaintiff 
had  had  the  pox.  Smith's  Case,  Noy,  151;  Dutton  v.  Eaton.  Al.  30;  Carslake  v. 
Mapledoram,  2  T.  R.  473;  Nichols  v.  Guy.  2  Ind.  82;  Pike  v.  Van  Wormer,  5  How. 
Pr.  171 ;  Irons  v.  Field,  9  R.  I.  216  Accord.  Austin  v.  White,  Cro.  El.  214;  Anon. 
Ow.  34;  Hobson  v.  Hudson,  Sty.  199,  219  Contra. 

*  Only  the  opinion  of  the  court  is  given. 


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CHAP.  VI.]  SCOTT  V.  STANSFIELD  696 

maladies  as  would  make  him  an  object  of  disgust  and  aversion,  and 
banish  hun  from  human  society.  We  beUeve  the  only  examples  which 
adjudged  cases  fiunish  are  of  the  plague,  leprosy,  and  venereal  dis- 
orders. 

In  addition  to  this  vital  objection  in  matter  of  substance,  the  decla- 
ration fails  to  set  forth  the  supposed  cause  of  action  in  substantial 
conformity  with  the  requirements  of  the  statute;  and  contains  many 
superfluous  all^ations,  which  are  manifestly  irrelevant,  impertinent, 
and  scandalous.  Appeal  dismiaaed.^ 


FOSS  V.  HILDRETH 

Supreme  Judicial  CJourt,  Massachusetts,  January,  1865 

Reported  in  10  Allen,  76. 

Chapman,  J.    The  defendant's  counsel  requested  the  court  to  give 
certain  instructions  to  the  jury,  as  stated  in  the  bill  of  exceptions. 
One  of  the  instructions  prayed  for  was,  that  the  truth  is  not  a  def encfi? 
to  an  action  of  slander,  if  the  words  were  spoken  maliciously  or  with-| 
out  any  reason  on  the  part  of  the  defendant  to  believe  they  were  true.*^ 
tBut  in  respect  to  verbal  slander  the  law  has  always  been  otherwise.  A 
special  plea  in  justification  sets  forth  the  truth  of  the  words  merely. 
3  Chit.  PI.  1031.  Exceptiom  avemded* 


SCOTT  V.  STANSFIELD 

In  THE  Exchequer,  June  3, 1868. 

Reported  in  Law  Reports,  3  Exchequer,  220. 

Declaration  that  the  defendant  published  of  the  plaintiff  in  rela- 
tion to  his  business  as  a  scrivener  these  words:  '*  You  are  a  harpy, 
prejong  on  the  vitals  of  the  poor.'' 

^  But  see  Fitzgerald  v.  Young,  89  Neb.693  (imputation  of  insanity  to  a  teacher). 

*  Only  the  opmion  of  the  court  upon  this  point  is  given. 

•  Lucas  V.  Cotton,  Moore,  79;  Underwood  v.  Parks,  2  Stra.  1200;  Elhs  v.  Buz- 
zelL  60  Me.  209;  Baum  v.  Clause,  5  Hill,  196  Accord. 

The  rule  is  the  same  as  to  actions  for  a  libel.  Leyman  v.  Latimer.  3  Ex.  D.  15, 
352;  Grand  Union  Tea  Co.  v.  Lorch.  (C.  C.  A.)  231  Fed.  390;  Schuler  v,  Fischer, 
167  Ala.  184;  Children  v.  Shinn,  168  la.  631;  Castle  v.  Hunston,  19  Kan.  417; 
Hanson  v,  Bristow,  87  Kan.  72;  Herald  Pub.  Co.  r.  Feltner,  158  Ky.  35;  Cook  v, 
Pulitzer  Pub.  Co..  241  Mo.  326;  Merrey  v.  Guardian  Pub.  Co.,  79  N.  J.  Law,  177; 
Willetts  V.  Scudaer,  72  Or.  535.  Unless  modified  by  statute,  as  in  Delaware. 
Florida,  Illinois,  Maine,  Massachusetts.  Nebraska,  New  York,  Rhode  Island  and 
West  Virginia.  Delaware  Co.  v.  Croasoale,  6  Houst.  181;  Jones  v.  Townsend,  21 
Fla.  431 ;  Pahner  v.  Adams,  137  Ind.  72;  Perry  v.  Porter,  124  Mass.  338;  Fordyce 
V.  Richmond,  78  Neb.  752;  McClaugherty  v.  Cooper,  39  W.  Va.  313.  In  New 
Hampshire  and  Pennsylvania,  however,  the  mere  truth  of  the  libel  is  not  always  a 
defence,  although  there  is  no  such  statute.  Hutchins  v.  Page,  75  N.  H.  215; 
Burkhart  v.  N.  Am.  Co.,  214  Pa.  St.  39. 


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696  SCOTT  V.   STANSFIELD  [CHAP.  VI. 

Plea:  That  the  defendant  uttered  the  said  words  while  acting  as  a 
judge  in  the  trial  of  a  cause  wherein  the  now  plaintiff  was  defendant. 

RepUcation:  That  the  words  were  spoken  falsely  and  without 
reasonable  cause,  and  were  wholly  irrelevant  and  impertinent  to  the 
cause  before  the  defendant  as  the  latter  then  well  knew. 

Demurrer.^ 

Kelly,  C.  B.  I  am  of  opinion  that  our  judgment  must  be  for  the 
defendant.  The  question  raised  upon  this  record  is  whether  an  action 
is  maintainable  against  the  judge  of  a  county  court,  which  is  a  court  of 
record,  for  words  spoken  by  him  in  his  judicial  character  and  in  the 
exercise  of  his  functions  as  judge  in  the  court  over  which  he  presides, 
where  such  words  would  as  against  an  ordinary  individual  constitute  a 
cause  of  action,  and  where  they  are  alleged  to  have  been  spoken  mali- 
ciously and  without  probable  cause,  and  to  have  been  irrelevant  to  the 
matter  before  him.  The  question  arises,  perhaps,  for  the  first  time 
with  reference  to  a  county  comt  judge,  but  a  series  of  decisions  uni- 
formly to  the  same  effect,  extending  from  the  time  of  Lord  Coke  to  the 
present  time,  establish  the  general  proposition  that  no  action  will  lie 
against  a  judge  for  any  acts  done  or  words  spoken  in  his  judicial  capac- 
ity in  a  court  of  justice.  This  doctrine  has  been  applied  not  only  to 
the  Superior  Courts,  but  to  the  comt  of  a  coroner  and  to  a  court  mar- 
tial, which  is  not  a  court  of  record.  It  is  essential  in  all  courts  that 
the  judges  who  are  appointed  to  administer  the  law  should  be  per- 
mitted to  administer  it  under  the  protection  of  the  law  independently 
and  freely,  without  favor  and  without  fear.  This  provision  of  the  law 
is  not  for  the  protection  or  benefit  of  a  maUcious  or  corrupt  judge,  but 
for  the  benefit  of  the  public,  whose  interest  it  is  that  the  judges  should 
be  at  Uberty  to  exercise  their  functions  with  independence  and  without 
fear  of  consequences.  How  could  a  judge  so  exercise  his  office  if  he 
were  in  daily  and  hourly  fear  of  an  action  being  brought  against  him, 
and  of  having  the  question  submitted  to  a  jury  whether  a  matter  on 
which  he  had  commented  judicially  was  or  was  not  relevant  to  the 
case  before  him  ?  Again,  if  a  question  arose  as  to  the  bona  fides  of  the 
judge  it  would  have,  if  the  analogy  of  similar  cases  is  to  be  followed, 
to  be  submitted  to  the  jury.  Thus,  if  we  were  to  hold  that  an  action  is 
maintainable  against  a  judge  for  words  spoken  by  him  in  his  judicial 
capacity,  imder  such  circumstances  as  those  appearing  on  these  plead- 
ings, we  should  expose  him  to  constant  danger  of  having  questions 
such  as  that  of  good  faith  or  relevancy  raised  against  him  before  a 
jury,  and  of  having  the  mode  in  which  he  might  administer  justice  in 
his  court  submitted  to  their  determination.  It  is  impossible  to  over- 
estimate the  inconvenience  of  such  a  result.  For  these  reasons  I  am 
most  strongly  of  opinion  that  no  such  action  as  this  can,  under  any 
circumstances,  be  maintainable.  Judgment  for  the  defendant} 

^  The  statement  of  the  pleading  is  abridged;  the  arguments  of  counsel  and  the 
concurring  opinions  of  Martin,  Channell,  and  Bramwell,  BB.,  are  omitted. 
*  Rex  r.  Skinner,  Loflft,  55;  Thomas  v.  Churton,  2  B.  <&  S.  476;  Dawkins  v. 


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CHAP.  VI.]  MUNSTER  V.  LAMB  697 

MUNSTER  V.  LAMB 
In  the  Court  op  Appeal,  July  5, 1883. 

Reported  in  11  Queen* s  Bench  Division,  588. 

Brett,  M.  R.^  This  action  is  brought  against  a  solicitor  for  words 
spoken  by  him  before  a  court  of  justice,  whilst  he  was  acting  as  the 
advocate  for  a  person  charged  in  that  court  with  an  offence  against  the 
law.  For  the  purposes  of  my  judgment,  I  shall  assume  that  the  words 
complained  of  were  uttered  by  the  soUcitor  maliciously,  that  is  to  say, 
not  with  the  object  of  doing  something  useful  towards  the  defence  of 
his  cUent:  I  shall  assume  that  the  words  were  uttered  without  any 
justification  or  even  excuse,  and  from  the  indirect  motive  of  personal 
ill-will  or  anger  towards  the  prosecutor  arising  out  of  some  previously 
existing  cause;  and  I  shall  assume  that  the  words  were  irrelevant  to 
every  issue  of  fact  which  was  contested  in  the  court  where  they  were 
uttered;  nevertheless,  inasmuch  as  the  words  were  uttered  with  refer- 
ence to,  and  in  the  course  of,  the  judicial  inquiry  which  was  going  on, 
no  action  will  he  against  the  defendant,  however  improper  his  behavior 
may  have  been. 

It  has  been  contended  that  as  a  person  defamed  has,  prima  fade,  a 
cause  of  action,  the  person  defaming  must  produce  either  some  statute 
or  some  previous  decision  directly  in  point  which  will  justify  his  con- 
duct. I  cannot  agree  with  that  argument.  The  common  law  does  not 
consist  of  particular  cases  decided  upon  particular  facts:  it  consists  of 
a  number  of  principles,  which  are  recognized  as  having  existed  during 
the  whole  time  and  course  of  the  common  law.  The  judges  cannot 
make  new  law  by  new  decisions;  they  do  not  assume  a  power  of  that 
kind:  they  only  endeavor  to  declare  what  the  common  law  is  and 
has  been  from  the  time  when  it  first  existed.  But  inasmuch  as  new 
circumstances,  and  new  complications  of  fact,  and  even  new  facts,  are 
constantly  arising,  the  judges  are  obliged  to  apply  to  them  what  they 
consider  to  have  been  the  common  law  during  the  whole  course  of  its 
existence,  and  therefore  they  seem  to  be  laying  down  a  new  law, 

Paulet,  L.  R.  6  Q.  B.  94;  Dawkins  v.  Prince  Edward,  1  Q.  B.  D.  499:  Law  v, 
LleweUyn,  [1906]  1  K.  B.  487  (judge  of  inferior  court  —  Scotch  case  Allwdi^  ». 
Robertson,  1  Dow  &  a.  495  not  foUowed);  Bottomley  v.  Brougham,  [19081  1 
K.  B.  684  (official  receiver);  MiUer  v.  Hope,  2  Shaw,  App.  Cas.  125:  Yat^  r. 
Lansing,  5  Johns.  282,  9  Johns.  395  (but  see  Aylesworth  v.  St.  John,  25  Hun,  156); 
Allen  V.  Earnest,  (Tex.  Civ.  App.)  145  S.  W.  1101  Accord. 

KendiUon  v.  Maltby,  Car.  &  M.  402,  2  M.  &  Rob.  438,  8.  c,  lays  down  too  re- 
stricted a  rule.  ,  ^    ,  ^  j 

"  The  publication  of  defamatory  words  may  be  under  an  absolute  or  under  a 
qualified  or  conditional  privilege.  Under  the  former  there  is  no  liability,  although 
the  defamatory  words  are  falsely  and  maliciously  published.  The  cla^  of  abso- 
lutely privileged  commimications  is  narrow  and  practically  limited  to  legislative 
and  judicial  proceedings  and  acts  of  state.*'  Hall,  C.  J.,  in  Hassett  v.  CarroU,  85 
Conn.  23, 35.  ^  .,«  »,.       o^ 

See  Tanner  v.  Stevenson,  138  Ky.  578;  Peterson  v.  Steenerson,  113  Mum.  87. 

1  Only  the  opinion  of  Brett,  M.  R.,  is  given. 


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698  MUNSTER  V.  LAMB  [CHAP.  VI. 

whereas  they  are  merely  applying  old  principles  to  a  new  state  of  facts. 
Therefore,  with  regard  to  the  present  case,  we  have  to  find  out  whether 
there  is  a  principle  of  the  common  law,  which  although  it  has  existed 
from  the  banning,  is  now  to  be  applied  for  the  first  time.  I  cannot 
find  that  there  has  been  a  decision  of  a  court  of  law  with  reference  to 
such  facts  as  are  now  before  us,  that  is,  with  regard  to  a  person  acting 
in  the  capacity  of  counsel:  but  there  have  been  decisions  upon  anal- 
ogous facts;  and  if  we  can  find  out  what  principle  was  applied  in 
these  decisions  upon  the  analogous  facts,  we  must  consider  how  far  it 
governs  the  case  before  us. 

Actions  for  libel  and  slander  have  always  been  subject  to  one  prin- 
ciple: defamatory  statements,  although  they  may  be  actionable  on 
ordinary  occasions,  nevertheless  are  not  actionable  libel  and  slander 
when  they  are  made  upon  certain  occasions.  It  is  not  that  these  state- 
ments are  libd  or  slander  subject  to  a  defence,  but  the  principle  is  that 
defamatory  statements,  if  they  are  made  on  a  privileged  occasion, 
from  the  very  moment  when  they  are  made,  are  not  libel  or  slander  of 
which  the  law  takes  notice.  Many  privileged  occasions  have  been 
recognized.  The  occasion,  with  which  we  now  have  to  deal,  is  that  a 
defamatory  statement  has  been  made  either  in  words  or  by  writing  in 
the  course  of  an  inquiry  regarding  the  administration  of  the  law.  It  is 
beyond  dispute  that  statements  made  under  these  circumstances  are 
privileged  as  to  some  persons,  and  it  has  been  admitted  by  the  plain- 
tiff's counsel  that  one  set  of  these  persons  are  advocates:  it  could  not 
be  denied  that  advocates  are  privileged  in  respect  of  at  least  sone  de- 
famatory statements  made  by  them  in  the  course  of  an  inquiry  as  to 
the  administration  of  the  law.  It  was  admitted  that  so  long  as  an  ad- 
vocate acts  bona  fide  and  sajrs  what  is  relevant,  owing  to  the  privileged 
occasion,  defamatory  statements  made  by  him  do  not  amount  to  libel 
or  slander,  although  they  would  have  been  actionable  if  they  had  not 
been  made  whilst  he  was  discharging  his  duty  as  an  advocate.  But  it 
was  contended  that  an  advocate  cannot  claim  the  benefit  of  the  priv- 
ilege unless  he  acts  bona  fide,  that  is,  for  the  purpose  of  doing  his  duty 
as  an  advocate,  and  unless  what  he  sajrs  is  relevant.  That  is  the  ques- 
tion which  we  now  have  to  determine.  Certain  persons  can  claim  the 
benefit  of  the  privilege  which  arises  as  to  everything  said  or  written  in 
the  course  of  an  inquiry  as  to  the  admmistration  of  the  law,  and  with- 
out making  an  exhaustive  enmneration  I  may  say  that  those  persons 
are  judges,  advocates,  parties,  and  witnesses.  There  have  been  deci- 
sions with  regard  to  three  of  these  classes,  namely,  judges,  parties,  and 
witnesses,  and  it  has  been  held  that  whatever  they  may  have  said  in 
the  coiu'se  of  an  inquiry  as  to  the  administration  of  the  law,  has  been 
said  upon  a  privileged  occasion,  and  that  they  are  not  liable  to  any 
action  for  libel  or  slander.  But  it  has  been  suggested  that  only  some  of 
these  classes  of  persons  can  successfully  claim  the  privilege  of  the  occa- 
sion, and  those  are  judges,  parties,  and  witnesses,  who  make  state- 


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CHAP.  VI.]  MUNSTER  V.  LAMB  699 

ments  without  malice  and  relevantly;  and  that  those  judges,  parties, 
and  witnesses,  who  either  speak  or  write  without  relevancy  and  with 
malice,  cannot  successfully  claim  the  privilege  of  the  occasion.  I  am 
inclined  to  think  that  witii  regard  to  these  classes  of  persons  the  law 
has  not  always  been  stated  in  the  same  manner  by  the  judges,  and 
some  judges  have  a  strong  objection  to  carry  the  privilege  beyond  the 
point  to  which  they  are  obliged  by  authority  to  carry  it;  they  are  dis- 
inclined to  admit  the  existence  of  the  privilege.  Other  judges  are 
inclined  to  carry  the  privilege  to  its  full  extent,  and  we  must  see  what 
is  the  doctrine  which  has  been  finally  adopted.  With  regard  to  wit* 
nesses,  the  chief  cases  are,  Revis  v.  Smith,  18  C.  B.  126,  25  L.  J.  C.  P. 
195,  and  Henderson  v.  Broomhead,  4  H.  &  N.  569,  and  with  regard  to 
witnesses,  the  general  conclusion  is  that  all  witnesses  speaking  with 
reference  to  the  matter  which  is  before  the  court  —  whether  what 
they  say  is  relevant  or  irrelevant,  whether  what  they  say  is  malicious 
or  not  —  are  exempt  from  liability  to  any  action  in  respect  of  what 
they  state,  whether  the  statement  has  been  made  in  words,  that  is,  on 
viva  voce  examination,  or  whether  it  has  been  made  upon  affidavit.  It 
was  at  one  time  suggested  that  although  witnesses  could  not  be  held 
liable  to  actions  upon  the  case  for  defamation,  that  is,  for  actions  for 
libel  and  slander,  nevertheless  they  might  be  held  liable  in  another  and 
different  form  of  action  on  the  case,  narr  ely,  an  action  analogous  to  an 
action  for  malicious  prosecution,  in  which  it  would  be  allied  that  the 
statement  complained  of  was  false  to  the  knowledge  of  the  witness, 
and  was  made  maliciously  and  without  reasonable  or  probable  cause. 
This  view  has  been  supported  by  high  authority;  but  it  seems  to  me 
wholly  untenable.  If  an  action  for  libel  or  slander  cannot  be  main- 
tained, how  can  mich  an  action  as  I  have  mentioned  be  maintained,  it 
being  in  truth  an  action  for  defamation  in  an  altered  form  ?  Every 
objection  and  every  reason,  which  can  be  urged  against  an  action  for 
libel  or  slander,  wiU  equally  apply  against  the  suggested  form  of  action. 
Therefore,  to  my  mind,  the  best  way  to  deal  with  the  suggested  form  of 
action  is  to  dispose  of  it  in  the  words  of  Crompton,  J.,  in  Henderson  v. 
Broomhead,  where  he  said :  "  The  attempts  to  obtain  redress  for  defa- 
mation having  failed,  an  effort  was  made  in  Revis  v.  Smith,  18  C.  B. 
126,  25  L.  J.  C.  P.  195,  to  sustain  an  action  analogous  to  an  action  for 
malicious  prosecution.  That  seems  to  have  been  done  in  despair.'' 
Nothing  could  be  more  strong,  nothing  could  show  more  clearly  his 
entire  disbelief  in  the  possibility  of  supporting  that  new  form  of  action. 
The  answer  to  the  suggested  form  of  action  was  that  during  the  hun- 
dreds of  years  which  had  elapsed  such  an  action  never  had  been  sus- 
tained. No  reported  case  from  the  time  of  the  commencement  of  the 
conmion  law  until  the  present  day  can  be  found  in  which  the  suggested 
form  of  action  has  been  maintained,  and  yet  it  is  impossible  to  suppose 
that  opportunities  for  bringing  actions  of  that  kind  and  of  carrying 
them  to  a  conclusion  have  not  occurred  again  and  again.    However, 


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700  MTJNSTER  V.  LAMB  [CHAP.  VI. 

the  question  is  not  as  to  the  form  of  the  action,  but  whether  an  action 
of  any  kind  will  lie  for  defamation  uttered  in  the  course  of  a  judicial 
proceeding.  Crompton,  J.,  in  Henderson  v.  Broomhead,  also  said: 
"  No  action  will  he  for  woitis  spoken  or  written  in  the  course  of  any- 
judicial  proceeding.  In  spite  of  all  that  can  be  said  against  it,  we 
find  the  rule  acted  upon  from  the  earliest  times.  The  mischief  would 
be  immense  if  the  person  aggrieved,  instead  of  preferring  an  indict- 
ment for  perjury,  could  turn  his  complaint  into  a  civil  action.  By 
imiversal  assent  it  appears  thiat  in  this  coimtry  no  such  action  lies. 
Cresswell,  J.,  pointed  out  in  Revis  v.  Smith,  18  C.  B.  126,  that  the  in- 
convenience is  much  less  than  it  would  be  if  the  rule  were  otherwise. 
The  origin  of  the  rule  was  the  great  mischief  that  would  result,  if 
witnesses  in  courts  of  justice  were  not  at  liberty  to  speak  freely,  sub- 
ject only  to  the  animadversion  of  the  court."  It  is  there  laid  down 
that  the  reason  for  the  rule  with  regard  to  witnesses  is  public  policy. 
In  Scott  V.  Stansfield  it  was  held  that  all  judges,  inferior  as  well  as 
superior,  are  privileged  for  words  spoken  in  the  coiu«e  of  a  judicial 
proceeding,  although  they  are  uttered  falsely  and  maUciously  and 
without  reasonable  or  probable  cause.  The  ground  of  the  decision  was 
that  the  privilege  existed  for  the  public  benefit:  of  course  it  is  not  for 
the  public  benefit  that  persons  sholild  be  slandered  without  having  a 
remedy;  but  upon  strildng  a  balance  between  convenience  and  incon- 
venience, between  benefit  and  mischief  to  the  public,  it  is  thought  bet- 
ter that  a  judge  should  not  be  subject  to  fear  for  the  consequences  of 
anything  which  he  may  say  in  the  course  of  his  judicial  duty.  There- 
fore the  cases  of  both  witnesses  and  judges  fall  within  the  rule  as  to 
privileged  occasions,  notwithstanding  it  may  be  proved  that  any  de- 
famatory words  spoken  by  them  were  utter^  from  an  indirect  motive 
and  to  gratify  their  own  maUce.  In  Dawkins  v.  Lord  Rokeby,  Law 
Rep.  8  Q.  B.  255,  it  was  assumed  for  the  purposes  of  the  decision,  that 
the  defendant  had  been  guilty  of  both  falsehood  and  malice;  never- 
theless it  was  held  that  no  action  would  lie  against  him  for  statements 
made  by  him  as  a  witn^.  The  ground  of  the  decision  was  no  doubt 
that  a  witness  in  giving  his  evidence  should  not  be  afraid  of  being  sued 
for  anything  that  he  might  say.  A  similar  view  of  the  law  was  taken 
in  Seaman  v.  Netherclift;  and  the  same  rule  has  been  applied  to  the 
parties.  If  upon  the  grounds  of  public  policy  and  free  administration 
of  the  law  the  privilege  be  extended  to  judges  and  witnesses,  although 
they  speak  maliciously  and  without  reasonable  or  probable  cause,  is 
it  not  for  the  benefit  of  the  administration  of  the  law  that  counsel  also 
should  have  an  entirely  free  mind  ?  Of  the  three  classes  —  judge,  wit- 
ness, and  counsel  —  it  seems  to  me  that  a  counsel  has  a  special  need 
to  have  his  mind  clear  from  all  anxiety.  A  counsel's  position  is  one  of 
the  utmost  difficulty.  He  is  not  to  speak  of  that  which  he  knows:  he 
is  not  called  upon  to  consider,  whether  the  facts  with  which  he  is  deal- 
ing are  true  or  false.    What  he  has  to  do,  is  to  argue  as  best  he  can, 


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CHAP.  VI.]  MTJNSTER  V.  LAMB  701 

without  d^rading  himself,  in  order  to  maintain  the  proposition  which 
will  carry  with  it  either  the  protection  or  the  remedy  which  he  desires 
for  his  client.  If  amidst  the  difficulties  of  his  position  he  were  to  be 
called  upon  during  the  heat  of  his  argument  to  consider  whether  what 
he  says  is  true  or  false,  whether  what  he  says  is  relevant  or  irrelevant, 
he  would  have  his  mind  so  embarrassed  that  he  could  not  do  the  duty 
which  he  is  called  upon  to  perform.  For,  more  than  a  judge,  infinitely 
more  than  a  witness,  he  wants  protection  on  the  ground  of  benefit  to 
the  public.  The  rule  of  law  is  that  what  is  said  in  the  course  of  the 
administration  of  the  law,  is  privileged;  and  the  reason  of  that  rule 
covers  a  counsel  even  more  than  a  judge  or  a  witness.  To  my  mind  it 
is  illogical  to  argue  that  the  protection  of  privilege  ought  not  to  exist 
for  a  counsel,  who  deliberately  and  maliciously  slanders  another  per- 
son. The  reason  of  the  rule  is,  that  a  counsel,  who  is  not  malicious 
and  who  is  acting  bona  fide^  may  not  be  in  danger  of  having  actions 
brought  against  him.  K  the  rule  of  law  were  otherwise,  the  most 
innocent  of  counsel  might  be  unrighteously  harrassed  with  suits,  and 
therefore  it  is  better  to  make  the  rule  of  law  so  large  that  an  innocent 
coimsel  shall  never  be  troubled,  although  by  making  it  so  large  counsel 
are  included  who  have  been  guilty  of  malice  and  misconduct.  In 
Rex  V.  Skinner,  Lofft,  55,  Lord  Mansfield,  a  judge  most  skilful  in 
enunciating  the  principles  of  the  law,  treated  a  coimsel  as  standing  in 
the  same  position  as  a  judge  or  a  witness.  In  Dawkins  v.  Lord  Rokeby, 
Law  Rep.  8  Q.  B.  255,  at  pp.  263,  264,  268,  a  most  careful  judgment 
was  delivered  on  behalf  of  all  the  judges  in  the  Exchequer  Chamber, 
and  the  opinion  of  Lord  Mansfield  was  cited  and  adopted.  If  the 
authority  of  these  two  cases  is  to  be  followed,  counsel  are  equally  pro- 
tected with  judges  and  witnesses.  I  will  refer  to  Kennedy  v.  Hilliard, 
10  Ir.  C.  L.  Rep.  n.  s.  195,  and  in  that  case  Pigott,  C.  B.,  delivered 
a  most  learned  judgment,  in  the  course  of  which  he  said:  "  I  take  this 
to  be  a  rule  of  law,  not  foimded  (as  is  the  protection  in  other  cases  of 
privileged  statements)  on  the  absence  of  nmUce  in  the  party  sued,  but 
founded  on  public  policy,  which  requires  that  a  judge,  in  dealing  with 
the  matter  before  him,  a  party  in  preferring  or  resisting  a  legal  pro- 
ceeding, and  a  witness  in  giving  evidence,  oral  or  written,  in  a  court 
of  justice,  shall  do  so  with  his  mind  uninfluenced  by  the  fear  of  an 
action  for  defamation  or  a  prosecution  for  libel."  10  Ir.  C.  L.  Rep., 
at  p.  209.  Into  the  rule  thus  stated  the  word  "  counsel  "  must  be  in- 
troduced, and  the  rule  may  be  taken  to  be  the  rule  of  the  common  law. 
That  rule  is  founded  upon  public  policy.  With  regard  to  counsel,  the 
questions  of  malice,  bona  fides j  and  relevancy,  cannot  be  raised;  the 
only  question  is,  whether  what  is  complained  of  has  been  said  in  the 
course  of  the  administration  of  the  law.  If  that  be  so,  the  case  against 
a  counsel  must  be  stopped  at  once.  No  action  of  any  kind,  no  criminal 
prosecution,  can  be  maintained  against  a  defendant,  when  it  is  estab- 
lished that  the  words  complained  of  were  uttered  by  him  as  counsel  in 


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702  MXJN8TER  V.  LAMB  [CHAP.  VI. 

the  course  of  a  judicial  inquiry,  that  is,  an  inquiry  before  any  coiui;  of 
justice  into  any  matter  concerning  the  administration  of  the  law. 

I  am  of  opinion  that  the  rule  of  law  is  such  as  I  have  pointed  out, 
that  it  ought  to  be  applied  in  the  present  case,  and  therefore  that  this 
action  cannot  be  maintained. 

From  our  judgments  it  is  obvious  that  we  dissent  from  the  opinion 
of  Lord  Denman,  C.  J.,  expressed  by  him  at  Nisi  Prius  in  Eendillon 
V.  Maltby,  Car.  &  M.  402;  2  M.  &  R.  438.         Appeal  dismissed} 

1  Pedley  r.  Morris,  61  L.  J.  Q.  B.  21  Accord. 

See  Buckley  v.  Wood,  4  Rep.  14  h;  Hodffson  t^.  Scarlett,  1  B.  &  Aid.  232;  Mao- 
kay  v.  Ford,  5  H.  &  N.  7W;  Smallwood  v.  York,  163  Ky.  139;  Rudin  v.  Fauver,  33 
Ohio  Cir.  Ct.  R.  315;  Kniecel  v.  Ck)ckrell  (Tex.  dv,  App.)  161  S.  W.  352. 

"  We  cannot  accept  the  aBeolute  and  unqualified  privile^  laid  down  in  Munster 
V,  Lamb.  .  .  .  We  cannot  a^ree  with  Brett,  M.  R.,  that  in  a  suit  against  counsel 
for  sLuider  the  only  inquiry  is  whether  the  words  were  spoken  in  a  judicial  pro- 
ceeding, and  if  so,  tne  case  must  be  stopped.  We  quite  agree  however,  with  Bram- 
wdl,  J.  A.,  in  Seaman  v,  Netherdift,  that '  relevant '  and  *  pertinent '  are  not  the 
best  words  that  could  be  used.  These  words  have  in  a  measure  a  technical  mean- 
ing, and  we  all  know  the  difficulty  in  determining  in  some  cases  what  is  relevant  or 
pertinent.  With  Lord  ChanceUor  Cairns  we  preifer  the  words  *  having  reference ' 
or '  made  with  reference/  or  in  the  language  of  Shaw,  C.  J., '  havinjg  relation  to  the 
cause  or  subject-matter.  And  if  counsel  in  the  trial  of  a  cause  maliciously  slanders 
a  party^  or  witness  or  an^r  other  person  in  regard  to  a  matter  that  has  no  reference 
or  relation  to,  or  connection  witn,  the  case  before  the  Court,  he  is  and  ou^t  to  be 
answerable  in  an  action  by  the  part^  injured.  This  qualification  of  his  pnvilege  in 
no  manner  impairs  the  freedom  of  discussion  so  necessary  to  the  proper  administra- 
tion of  the  law,  nor  does  it  subject  counsel  to  actions  for  slander  except  in  cases  in 
which  upon  reason  and  sound  public  policy  he  ought  to  be  held  answerable.  We 
cannot  agree  that  for  the  abuse  of  his  privilege  he  is  amenable  only  to  the  authority 
of  the  Court.  Mere  punishment  by  the  Court  is  no  recompense  to  one  who  has 
thus  been  maliciously  and  wantonly  slandered."  Robinson,  J.,  in  Maulsby  v. 
Reifsnider,  69  Md.  143, 162.  La  Porta  v.  Leonard,  88  N.  J.  Law,  663;  Andrews  v. 
Gardiner,  165  App.  Div.  595  Accord, 

D^amatory  statementa  in  brief  of  counsel.  Brooks  v.  Bank  of  Acadia,  138  La. 
657. 

Pleadings.  Nalle  v.  Oyster,  230  U.  S.  165;  Carpenter  v.  Grimes  Min.  Co.,  19 
Idaho,  384;  Hess  v,  McKee,  150  la.  409;  Lebovitch  v,  Levv,  128  La.  518;  Flyim  v. 
Boglarsky,  164  Mich.  513:  Rosenberg  v.  Dworetsky,  139  App.  Div.  517;  Harris  v. 
Santa  F6  Townsite  Co.,  (Tex.  Qv.  App.)  125  S.  W.  77. 

In  England,  statements  in  a  pleading  are  absolutely  privileged,  though  not  rele- 
vant.   Hodson  V,  Pare,  [1899]  1  Q.  B.  455. 

In  the  United  States,  statements  in  a  pleading  not  pertinent  to  the  action  are 
not  privileoed.  Union  Ins.  Co.  v.  Thomas,  83  Fed.  803;  Kingv.  McKissick,  126 
Fed.  215;  Potter  v,  Troy,  175  Fed.  128;  Myers  v,  Hodges,  63  FTa.  197;  Gaines  v. 
Aetna  Ins.  Co.,  104  Ky.  695;  Jones  v,  Brownlee,  161  Mo.  258;  Gilbert  v.  People,  1 
Denio,  41;  Kemper  v.  Fort,  219  Pa.  St.  85;  Crockett  v,  McLanahan,  109  Tenn. 
617:  MiUer  v.  Gust,  71  Wash.  139. 

Charges  in  disbarment  proceedings,  see  Preusser  v,  Faulhaber,  33  Ohio  Cir.  Ct.  R. 
312. 

Statements  in  a  petition  for  pardon,  Connollee  v,  Blanton,  (Tex.  Civ.  App.)  163 
S.  W.  404  (held  absolutely  privileged). 

Statement  by  defendant  on  trial  for  crime.    Nelson  v,  Davis,  9  Ga.  App.  131. 

In  Louisiana  the  statements  of  parties  in  judicial  proceedings  are  not  absolutely 
privileged.  Lescale  v.  Joseph  Schwartz  Co.,  116  La.  293,  118  La.  718;  Dunn  p. 
Southern  Co.,  116  La.  431. 


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CHAP.  VI.]  SEAMAN  V.  NETHERCLIFT  703 

SEAMAN  V.  NETHERCLIFT 

In  the  Court  op  Appeal,  December  15, 1876. 
Reported  in  2  Common  Pleas  Division^  53. 

Appeal  from  the  decision  of  the  Common  Pleas  Division,  ordering  judg- 
ment to  be  entered  for  the  defendant.    1  C.  P.  D.  540. 

Claim :  That  defendant  said  of  a  will,  to  the  signature  of  which  the  plaintiff 
was  a  witness,  **  I  believe  the  signature  to  the  will  to  be  a  rank  forgery,  and  I 
shall  believe  so  to  the  day  of  my  death,"  meaning  that  the  plaintiff  had  been 
guilty  of  f orgmg  the  signature  of  the  testator,  or  of  aiding  and  abetting  in  the 
forgery. 

Defence:  That  defendant  spoke  the  words  in  the  course  of  giving  his  evi- 
dence as  a  witness  on  a  charge  of  forgery  before  a  magistrate. 

Reply:  That  the  words  were  not  bona  fide  spoken  by  defendant  as  a  witness, 
or  in  answer  to  any  question  put  to  him  as  a  witness,  and  he  was  a  mere  volun- 
teer in  speaking  ^em  for  his  own  purposes  otherwise  than  as  a  witness  and 
maliciously  and  out  of  the  course  of  his  escamination.^ 

CocKBURN,  C.  J.  The  case  is,  to  my  mind,  so  abundantly  clear,  and  I  be- 
lieve to  the  minds  of  my  learned  brothers,  that  I  think  we  ought  not  to  hesi- 
tate to  at  once  pronoimce  our  decision. 

The  plaintiff  brings  his  action  against  the  defendant  for  slander,  alleged  to 
have  been  uttered  on  the  occasion  of  a  prosecution  for  forgery  before  a  magis- 
trate of  the  city  of  London.  The  defence  set  up  is:  **  True,  I  did  utter  the 
words  imputed  to  me,  but  I  spoke  them  when  I  was  a  witness  in  a  case  in  which 
I  was  called  as  a  witness."  The  plaintiff's  answer  to  that  is,  "  Yes,  you  were 
called  as  a  witness,  but  you  spoke  these  words  when  you  were  no  longer  giving 
evidence,  and  not  only  knowing  them  to  be  false^  but  also  not  in  the  inquiry, 
and  dehors  altogether  the  subject-matter  of  the  inquiry,  for  your  own  purpose 
of  maliciously  defaming  me."  At  the  trial  before  Lord  Coleridge  it  appeared 
that  in  the  Probate  suit  of  Davies  v.  May  the  defendant  had  been  examined,  as 
an  adept,  to  express  his  opinion  as  to  the  genuineness  of  a  signature  to  a  will, 
and  he  gave  it  as  his  opinion  that  the  signature  was  a  forgery.  The  president 
of  the  court,  in  addressing  the  jury,  made  some  very  strong  observations  on 
the  rashness  of  the  defendant  in  expressing  so  confident  an  opinion  in  the  face 
of  the  direct  evidence.  Soon  afterwards,  on  a  prosecution  for  forgery  before 
the  magistrate,  the  defendant  was  called  as  an  adept  by  the  person  charged, 
when  he  expressed  an  opinion  favorable  to  the  genuineness  of  the  document. 
He  was  then  asked  by  the  counsel  for  the  prosecution  whether  he  had  been  a 
witness  in  the  suit  of  Davies  ».  May.  He  answered.  "  Yes."  And  he  was  then 
asked,  "  Did  you  read  a  report  of  the  observations  which  the  presiding  judge 
made  on  your  evidence  ?  "  He  again  said,  "  Yes."  And  then  the  counsel 
stopped.  I  presume  the  circumstances  of  the  trial  were  well  known,  and  the 
counsel  thought  he  had  done  enough.  The  defendant,  the  witness,  expressed 
a  desire  to  make  a  statement.  The  magistrate  told  him  he  could  not  hear  it. 
Nevertheless  the  defendant  persisted  and  made  the  statement,  the  subject- 
matter  of  this  action  of  slander. 

On  the  proof  of  these  facts  Lord  Coleridge  reserved  leave  to  the  defendant 
to  move  to  enter  judgment,  if  the  court  should  be  of  opinion  that  there  was  no 

^  The  arguments  and  the  opinion  of  Amphlett,  J.  A.,  are  omitted. 


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704  SEAMAN  V.  NBTHERCLIPT  [CHAP.  VI. 

evidence  on  behalf  of  the  plaintiff  which  ought  to  be  left  to  the  jury.  It  oc- 
curred to  him,  however,  that  it  would  be  as  well  to  take  the  opinion  of  the 
jury,  and  they  found  that  the  replication  was  true,  viz.,  that  the  words  were 
spoken,  not  as  a  witness  in  the  course  of  the  inquiry,  but  maliciously  for  his 
own  purpose,  that  is,  with  intent  to  injure  the  plaintiff.  Upon  these  findings 
judgment  was  entered  for  the  plaintiff,  leave  being  again  reserved  to  enter 
judgment  for  the  defendant,  and  the  Court  of  Common  Pleas  gave  judgment 
for  the  defendant. 

Now,  if  the  findings  of  the  jury  had  been  foimded  upon  evidence  by  which 
they  could  have  been  supported,  I  mig^t  have  had  some  hesitation  about  the 
decision.  But  they  were  not;  and  we  are  asked  to  come  to  a  conclusion  con- 
trary to  what  has  been  established  law  for  nearly  three  centuries. 

If  there  is  anything  as  to  which  the  authority  is  overwhelming  it  is  that  a 
witness  is  privileged  to  the  extent  of  what  he  says  in  course  of  his  examination. 
Neither  is  that  privilege  affected  by  the  relevancy  or  irrelevancy  of  what  he 
says;  for  then  he  would  be  obliged  to  judge  of  what  is  relevant  or  irrelevant, 
and  questions  might  be,  and  are,  constantly  asked  which  are  not  strictly  rele- 
vant to  the  issue.  But  that,  beyond  all  question,  this  unqualified  privilege  ex- 
tends to  a  witness  is  established  by  a  long  series  of  cases,  the  last  of  which  is 
Dawkins  v.  Lord  Rokeby,  Law  Rep.  7  H.  L.  744,  after  which  to  contend  to  the 
contrary  is  hopeless.  It  was  there  expressly  decided  that  the  evidence  of  a  wit- 
ness with  reference  to  the  inquiry  is  privileged,  notwithstanding  it  may  be 
mahcious;  and  to  ask  us  to  decide  to  the  contrary  is  to  ask  what  is  beyond  our 
power.  But  I  agree  that  if  in  this  case,  beyond  being  spoken  maliciously,  the 
words  had  not  been  spoken  in  the  character  of  a  witness  or  not  while  he  was 
giving  evidence  in  the  case,  the  result  might  have  been  different.  For  I  am 
very  far  from  desiring  to  be  considered  as  laying  down  as  law  that  what  a  wit- 
ness states  altogether  out  of  the  character  and  sphere  of  a  witness,  or  what  he 
may  say  dehors  the  matter  in  hand,  is  necessarily  protected.  I  quite  agree 
that  what  he  says  before  he  enters  or  after  he  has  left  the  witness-box  is  not 
privileged,  which  was  the  question  in  the  case  before  Lord  Ellenborough. 
Trotman  t;.  Dunn,  4  Camp.  211.  Or  if  a  man  when  in  the  witness-box  were 
to  take  advantage  of  his  position  to  utter  something  having  no  reference  to  the 
cause  or  matter  of  inquiry  in  order  to  assail  the  character  of  another,  as  if  he 
were  asked,  "  Were  you  at  York  on  a  certain  day  ?  "  and  he  were  to  answer, 
"  Yes,  and  A.  B.  picked  my  pocket  there;  "  it  certainly  might  well  be  said  in 
such  a  case  that  the  statement  was  altogether  dehors  the  character  of  witness, 
and  not  within  the  privilege. 

If,  therefore,  the  findings  of  the  jury,  that  the  defendant  had  ceased  to  be  a 
witness  when  he  spoke  the  words,  were  justified  by  the  evidence,  I  should  hesi- 
tate before  I  decided  in  his  favor.  But  I  think  the  defendant  was  entitled  to 
judgment  on  the  first  reservation.  There  was  no  evidence  to  go  to  the  jury 
upon  the  plaintiff's  case.  What  the  defendant  said  was  said  in  his  character 
of  witness;  for  there  can  be  no  doubt  that  the  words  were  spoken  in  conse- 
quence of  the  question  put  to  him  by  counsel  for  the  prosecution,  the  object 
and  effect  of  the  cross-examination  having  been  to  damage  his  credibility  as  a 
witness  before  the  magistrate,  and  of  this  the  witness  was  conscious.  The 
counsel,  having  put  the  question,  stops;  and  if  there  had  been  counsel  present 
for  the  prisoner  who  had  re-examined  the  witness,  he  would  have  put  the 
proper  questions  to  rehabilitate  him  to  the  degree  of  credit  to  which  he  was 
entitled.    That  such  questions  would  have  been  relevant  I  cannot  bring  my- 


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CHAP.  VI.]  SEAMAN  V.  NETHERCUPT  705 

self  for  a  moment  to  doubt,  relating  as  they  do  to  the  credibility  of  the  witness, 
which  is  part  of  the  matter  of  which  the  magistrate  has  to  take  cognizance. 
That  being  so,  the  witness  himself,  who  is  sworn  to  speak  the  whole  truth,  is 
properly  entitled,  not  only  with  a  view  to  his  own  vindication,  but  in  the  in- 
terest of  justice,  to  make  such  an  observation  in  explanation  of  his  former 
answer  as  is  just  and  fair  under  the  circumstances.  That  is  what  the  defend- 
ant did.  The  sitting  magistrate  having  allowed  the  disparaging  question  to  be 
put  and  answered,  ought  not  to  have  interfered  to  prevent  the  defendant  from 
giving  an  explanation.  I  think  the  statement,  coming  immediately  after  the 
damaging  question  had  been  put  to  him,  must  be  taken  to  be  part  of  his  testi- 
mony touching  the  matter  in  question,  as  it  affects  his  credibility  as  a  witness 
in  the  matter  as  to  which  he  was  called.  It  was  given  as  part  of  his  evidence 
before  he  had  become  divested  pf  his  character  of  witness;  and  but  for  the 
question  of  the  opposite  counsel  he  never  would  have  made  the  statement  at 
all. 

As  to  the  finding  of  malice,  it  is  true  that  what  the  defendant  said  might 
possibly  have  the  effect  of  damaging  the  plaintiff's  character;  but  can  any  one 
suppose  that  the  defendant  had  this  in  his  mind  when  he  spoke,  or  that  he  in- 
tended to  injure  the  plaintiff  ?  He  thought  only  of  his  own  credit  as  a  witness, 
which  had  been  attacked.  He  spoke,  on  the  impulse  of  the  moment,  no  doubt 
very  foolishly;  and  it  was  probably  his  foolish  persistence  in  maintaining  th^ 
same  attitude  and  setting  up  his  own  opinion  against  the  positive  testimony 
of  the  other  witnesses  that  prejudiced  the  jury  against  him,  and  led  them  to 
return  the  findings  they  did,  founded,  in  reality,  upon  no  evidence  at  all.  In 
my  opinion,  the  Lord  Chief  Justice  should  have  nonsuited  the  plaintiff,  which 
is  the  conclusion  at  which  the  Court  of  Common  Pleas  ultimately  arrived ;  for 
there  really  was  no  evidence  that  the  defendant  was  speaking  otherwise  than 
as  a  witness  and  relevantly  to  the  matters  in  issue,  because  relevantly  to  his 
own  character  and  credibility  as  a  witness  in  the  matter.  That  being  so,  even 
if  express  malice  could  have  been  properly  inferred  from  the  circumstances, 
the  case  of  Dawkins  v.  Lord  Rokeby,  Law  Rep.  7  H.  L.  744,  conclusively  de- 
cides that  malice  has  ceased  to  be  an  element  in  the  consideration  of  such 
cases,  unless  it  can  be  shown  that  the  statement  was  made  not  in  the  course 
of  giving  evidence,  and  therefore  not  in  the  character  of  a  witness.  A  long 
series  of  authorities,  from  the  time  of  Elizabeth  to  the  present  time,  has 
established  that  the  privilege  of  a  witness  while  giving  evid^ice  is  absolute 
and  unqualified.  Allardice  v,  Robertson,  1  Dow,  n.  s.  495,  515,  was  relied 
upon  by  Mr.  Chambers.  That  was  the  case  of  an  action  against  a  magistrate 
for  woids  spoken  on  the  bench,  and  Lord  Wynford  expressly  distinguishes  the 
two  cases,  and  says  that  the  privilege  of  a  judge  of  the  superior  courts  does 
not  apply  to  the  judge  of  an  inferior  court;  and  that  in  the  case  of  the  latter 
the  privilege  is  not  absolute  and  unqualified,  and  that  a  "  subordinate  judge  " 
would  be  liable  to  an  action  if  malice  were  proved.  It  does  not,  therefore, 
touch  the  present  case;  and  as  to  a  witness  speaking  with  reference  to  the 
subject-matter  of  the  issue,  it  is  clear  that  the  privilege  is  unqualified. 

The  judgment  of  the  Common  Pleas  Division  must,  therefore,  be  affirmed. 

Bramwell,  J.  A.  I  am  of  the  same  opinion.  The  judgment  of  the  Com- 
mon Pleas  affirmed  two  propositions.  First,  that  what  the  defendant  said  was 
said  as  a  witness,  and  was  relevant  to  the  inquiry  before  the  magistrate; 
secondly,  that,  that  being  so,  the  Lord  Chief  Justice  should  have  stopped  the 
trial  of  the  action  by  nonsuiting  the  plaintiff. 


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706  SEAMAN  V.  TraTHERCLIFt  [CHAP.  VI. 

As  to  the  first  proposition,  I  am  by  no  means  sure  that  the  word  "  relevant " 
is  the  best  word  that  could  be  used ;  the  phrases  used  by  the  Lord  Chief  Baron 
and  the  Lord  Chancellor  in  Dawkins  v.  Lord  Rokeby,  Law  Rep.  7  H.  L.,  at 
p.  744,  would  seem  preferable,  "having  reference,"  or  "made  with  reference 
to  the  inquiry."  Now,  were  the  judges  of  the  Common  Pleas  Division  right  in 
holding  that  this  statement  of  the  defendant  had  reference  to  the  inquiry  ?  I 
think  that  they  were.  There  can  be  no  doubt  that  the  question  put  by  the 
cross-examining  counsel  ought  not  to  have  been  allowed:  "  Have  you  read 
what  Sir  James  Hannen  is  reported  to  have  said  as  to  your  evidence  in  Davies 
V,  May?  "  What  Sir  James  Hannen  had  said  in  a  former  case  was  not  evi- 
dence. It  was,  therefore,  an  improper  question,  and  the  answer  to  it,  if  untrue, 
would  not  have  subjected  the  witness  to  an  indictment  for  perjury.  But  the 
question  having  been  put,  and  the  answer  having  been  in  the  affirmative  — 
and  the  question  being,  as  Lord  Coleridge  observed, "  ingeniously  suggestive," 
viz.,  that  the  way  the  defendant  had  been  dealt  with  on  the  former  occasion 
did  not  radound  to  his  credit  as  a  witness  — •  the  defendant  insisted  on  making 
in  addition  the  statement  complained  of.  He  did  so,  in  my  opinion,  very 
foolishly.  It  would  have  been  better  to  have  been  satisfied  with  retaining  his 
own  opinion  without  setting  it  up  in  direct  opposition  to  the  positive  testi- 
mony of  eye-witnesses.  But  he  foolishly,  as  I  think,  and  coarsely  exclaimed, 
"  I  believe  that  wiH  to  be  a  rank  forgery,  and  shall  believe  so  to  the  day  of  my 
death."  Suppose  after  he  had  said  "  yes,"  he  had  added  in  a  decent  and  be- 
coming-manner, "  and  I  am  sorry  Sir  James  Hannen  said  what  he  did,  for  I 
took  great  pains  to  form  my  own  opinion,  and  I  shall  alwa)rs  retain  it,  as  I 
still  think  it  right."  Would  not  that  have  had  reference  to  the  inquiry 
before  the  magistrate  ?  And  would  it  not  have  been  reasonable  and  right 
that  the  witness  should  have  addad  that  statement  in  justification  of  himself  ? 
Surely,  yes.  Mr.  Clarke  said  he  was  prepared  to  maintain  that  as  long  as  a 
witness  spoke  as  a  witness  in  the  witness-box,  he  was  protected,  whether  the 
matter  had  reference  to  the  inquiry  or  not.  I  am  reluctant  to  affirm  so  ex- 
treme a  proposition.  Suppose  while  the  witness  is  in  the  box,  a  man  were  to 
come  in  at  the  door,  and  the  witness  were  to  exclaim,  "  That  man  picked  my 
pocket."  I  can  hardly  think  that  would  be  privileged.  I  can  scarcely  think 
a  witness  would  be  protected  for  anything  he  might  say  in  the  witness-box, 
wantonly  and  without  reference  to  the  inquiry.  I  do  not  say  he  would  not 
be  protected.  It  might  be  held  that  it  was  better  that  everything  a  witness 
said  as  a  witness  should  be  protected,  than  that  witnesses  should  be  under  the 
impression  that  what  they  said  in  the  witness-box  might  subject  them  to  an 
action.  I  certainly  should  pause  before  I  affirmed  so  extreme  a  proposition, 
but  without  affirming  that,  I  think  the  words  "  having  reference  to  the  in- 
quiry "  ought  to  have  a  very  wide  and  comprehensive  application,  and  ought 
not  to  be  limited  to  statements  for  which,  if  not  true,  a  witness  might  be 
indicted  for  perjury,  or  the  exclusion  of  which  by  the  judge  would  give  ground 
for  a  new  trial;  but  ought  to  extend  to  that  which  a  witness  might  naturally 
and  reasonably  say  when  giving  evidence  with  reference  to  the  inquiry  as  to 
which  he  had  been  called  as  a  witness.  Taking  that  view,  I  think  the  first 
proposition  is  established,  that  the  statement  of  the  defendant  was  made  as 
witness  and  had  reference  to  the  inquiry. 

As  to  the  second  proposition,  that,  if  the  first  be  made  out,  no  inquiry  can 
be  gone  into  as  to  whether  the  statement  was  false  or  malicious  or  as  a  volun- 
teer, we  are  bound  by  authority.    The  case  of  Dawkins  v.  Lord  Rokeby,  Law 


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CHAP,  VI.]  WHITE  V.  CARROLL  707 

Rep.  7  H.  L.  744,  is  directly  in  point,  and  binding  upon  us  even  if  we  disliked 
the  decision.  Mr.  Chambers  has  not  attempted  to  distinguish  that  case  except 
on  the  ground  that  the  inquiry  in  that  case  was  before  a  military  court.  But  it 
is  clearly  not  distinguishable  on  that  ground.  The  learned  Lords  determined 
that  what  is  true  of  a  civil  tribunal  is  true  of  a  military  court  of  inquiry;  and 
they  affirmed  most  distinctly  the  proposition  that  if  the  evidence  has  refer- 
ence to  the  inquiry,  the  witness  is  absolutely  privileged.  There  is  also  the  case 
in  the  Court  of  Enror  of  Henderson  v,  Broomhead,  4  H.  &  N.  569,  which  is  pre- 
cisely to  the  same  effect,  and  undistinguishable  from  the  present  case. 

I  am,  therefore,  of  opinion  that  the  judgment  of  the  Common  Pleas  Divi- 
sion was  right,  and  must  be  affirmed.  Judgment  affirmed} 


WHITE  V.  CARROLL 

Court  op  Appeals,  New  York,  March  18, 1870. 

Reported  in  42  Neuo  York  Reports,  161. 

StTTHERLAND,  J.*  On  the  trial  of  this  action,  before  Mr.  Justice 
Potter  and  a  jury  at  the  circuit,  it  appeared,  that  in  1858  and  1859, 
a  proceeding  was  going  on  before  the  surrogate  of  Montgomery  county 

1  Revis  V.  Smith,  18  C.  B.  126;  Henderson  v.  Broomhead,  4  H.  &  N.  569;  Daw- 
kins  V.  Rokeby,  L.  R.  7  H.  L.  744,  L.  R.  8  Q.  B.  265  (military  court  of  inquiry); 
Goffin  V.  Donnelly,  6  Q.  B.  D.  307  (select  conmiittee  of  House  of  Commons); 
Gompas  v.  White,  6  T.  L.  R.  20;  Watson  v.  Jones,  [1905]  A.  C.  480  (privilege  ex- 
tends to  statement  to  client  and  solicitor  in  preparation  of  case  for  trial) :  Terry  v. 
Fellows,  21  La.  Ann.  375;  Hiinckle  v.  Voneiflf,  69  Md.  173;  Dodge  v.  Gilman,  122 
Minn.  177:  Runge  v.  Franklin,  72  Tex.  685;  Kennedy  v.  Hilliard,  10  Jr.  C.  L.  R. 
195  Accord.  But  the  Enghsh  courts  do  not  extend  the  doctrine  to  hearings  before 
an  administrative  board.    Atwood  v.  Chapman.  Ill  L.  T.  726. 

See  also  Hutchinson  v.  Lewis,  76  Ind.  65;  Liles  v.  Gaster.  42  Ohio  St.  631. 

In  Dawkins  v.  Lord  Rokeby,  supraj  Lord  Peniance  said:  "  It  is  said  that  a 
statement  of  fact  of  a  libellous  nature  which  is  ^pably  untrue  —  known  to  be  un- 
true by  him  who  made  it,  and  dictated  by  malice  —  ought  to  be  the  subject  of  a 
civil  remedy,  though  made  in  the  course  of  a  purely  military  inquiry.  This  mode 
of  stating  the  question  assumes  the  untruth  and  assumes  the  malice.  If  by  any 
process  of  demonstration,  free  from  the  defects  of  human  judgment,  the  untruth 
and  malice  could  be  set  above  and  beyond  all  Question  or  doubt,  there  might  be 
groimd  for  contending  that  the  law  of  the  land  should  give  damages  to  the  injured 
man.  * 

"  But  this  is  not  the  state  of  things  imder  which  this  question  of  law  has  to  be 
determined.  Whether  the  statements  were,  in  fact,  imtnie,  and  whether  they  were 
dictated  by  malice,  are,  and  always  will  be,  open  questions,  upon  which  opinions 
may  differ,  and  which  can  only  he  resolved  by  the  exercise  oi  human  judgment. 
And  the  real  question  is,  whether  it  is  proper  on  grounds  of  public  policy  to  remit 
such  questions  to  the  judgment  of  a  jury.  The  reasons  against  domg  so  are  simple 
and  obvious.  A  witness  may  be  utterly  free  from  malice,  and  may  yet  in  the  eyes 
of  a  jury  be  open  to  that  imputation;  or,  again,  the  witness  may  be  cleared  by  the 
jury  of  the  imputation,  and  may  yet  have  to  encounter  the  expenses  and  distress 
of  a  harassing  litigation.  With  such  possibilities  hanging  over  his  head,  a  witness 
cannot  be  expectSi  to  speak  with  that  free  and  open  mind  which  the  administra- 
tion of  justice  demands.  .  .  . 

"  These  considerations  have  long  since  led  to  the  legal  doctrine  that  a  witness  m 
the  courts  of  law  is  free  from  any  action;  and  I  fail  to  perceive  any  reason  why  the 
same  considerations  should  not  be  applied  to  an  inquiry  such  as  the  present,  and 
with  the  same  result."  .  .  . 

'  The  statement,  arguments  of  counsel  and  parts  of  the  opmion  are  omitted. 


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708  WHITE  V.  CARROLL  [CHAP.  VI. 

in  which  the  contested  point  or  question  was  the  testamentary  capac- 
ity of  one  Jay  Phillips;  that  the  plaintiflf  and  the  defendant  were  both 
at  the  time,  and  for  some  years  previously  had  been,  practising  as 
physicians  at  Amsterdam,  Montgomery  county,  th/B  plaintiff  as  a 
homoeopathic  physician,  and  the  defendant  as  an  allopathic  physician; 
that  both  had  been  sworn  as  witnesses,  and  testified  in  the  proceedings 
before  the  siurogate,  the  defendant  some  time  after  the  plaintiff;  that 
on  the  examination  of  the  defendant  as  such  witness,  he  was  asked 
whether  any  other  physician  was  in  attendance  on  Jay  PhilUps,  at  the 
time  he  was  attending  him,  and  that  he  answered:  "  Not  as  I  know 
of."  That  he  was  then  asked :  ''  Did  not  any  physician  attend  him  at 
the  time  he  was  at  Mrs.  Moore's,  when  you  did  not  ?  "  That  to  this 
question,  the  defendant  answered:  **  Not  as  I  know  of;  I  understand 
he  had  a  quack,  I  would  not  call  him  a  physician;  I  understood  that 
Dr.  White,  as  he  is  called,  had  been  there."  That  this  evidence  was 
reduced  to  writing  by  the  surrogate,  and  filed  in  the  surrogates'  office; 
and  thereupon  this  action  was  brou^t,  the  complaint  in  which  con- 
tains two  counts,  one  for  libel,  or  for  words  writteii;  and  the  other  for 
slander,  or  for  words  spoken. 

No  point  was  made  on  the  trial  of  the  action,  that  the  words  allied 
in  the  complaint  had  not  been  proved  to  have  been  ^)oken  by  the 
defendant,  but  a  motion  was  made  on  his  part  to  dianiss  the  com- 
plaint, substantially  upon  the  ground  that  the  words  spoken  by  tiie 
defendant  were  not  actionable,  because  they  were  spoken  on  his  ex- 
amination as  a  witness,  and  were  spoken  as  pertinent  and  responsive 
to  the  questions  asked  him. 

Justice  Potter  denied  the  motion  to  dismiss  the  complaint,  and  the 
defendant  excepted. 

In  submitting  to  the  jury  the  question,  "  whether  the  defendant,  at 
the  time  he  so  testified  and  used  the  words  in  question,  beheved  the 
words  so  used  by  him  were  relevant  or  pertinent  to  the  question  then 
on  trial,"  Justice  Potter  charged  the  jury  as  follows:  "  That  if  the 
jury  believed,  from  all  the  circimistances  proved,  from  the  questions 
put  to  him,  and  from  his  manner  of  answering,  and  from  the  answers 
themselves,  that  he  testified  in  good  faith,  or  in  the  belief  that  his  an- 
swers were  pertinent  and  relevant,  then  the  law  protected  him  in  what 
he  said;  it  was  privileged,  and  their  verdict  should  be  for  the  defend- 
ant. That  if,  on  the  contrary,  they  should  believe  from  this  evidence, 
that  the  defendant,  though  testifying  at  the  time  as  a  witness,  and 
as  such  entitled  to  the  protection  of  the  law,  in  so  using  the  words 
proved,  was  actuated  by  maUce;  that  he  used  the  words  for  the  mere 
purpose  of  defaming  the  plaintiff,  then  the  law  withdrew  the  pro- 
tection it  would  otherwise  have  afforded  him,  and  he  became  amen- 
able to  the  consequences  of  uttering  the  slander,  or  of  publishing  the 
Ubel." 


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CHAP.  VI.]  WHITE  V.  CARROLL  709 

There  is  certainly  some  doubt  whether  the  defendant's  exception 
which  he  claims  appUes  to  this  part  of  the  charge,  was  sufficiently  spe- 
cific or  definite  to  raise  the  question  as  to  its  correctness;  but  I  shall 
assume  that  it  was;  and  I  diall  also  assume,  in  view  of  what  I  have 
said  preliminarily,  as  the  counsel  for  the  defendant  assumed  on  the 
argument,  and  assumes  in  his  points,  that  the  only  material  questions 
presented  by  this  appeal,  are  those  presented  by  the  two  exceptions 
referred  to. 

Now,  as  to  the  first,  it  is  perfectly  clear,  that  the  question,  whether 
tiie  defendant  was  protected  under  the  circumstances,  was  not  a  ques- 
tion of  law  for  the  court,  but  was  a  question  of  fact  for  the  jury.  It 
was  really  a  question  of  conduct,  of  motive,  of  good  faith  and  honest 
purpose,  or  of  bad  faith  and  maUcious  purpose. 

The  question  was,  whether  the  defendant  did,  or  did  not,  avail  him- 
self of  tiie  occasion  to  maliciously  answer  the  questions  put  to  him  as 
a  witness,  in  the  way  he  did. 

This  question  was  most  emphatically  a  question  for  the  jury;  and, 
I  think  it  was  submitted  to  the  jury  as  favorably  for  the  d^endant  as 
he  had  a  right  to  expect  or  ask. 

It  is  true,  that  in  submitting  it  to  the  jury.  Justice  Potter  asAuned 
that  the  defendant,  when  he  answered  the  questions  as  he  did,  knew 
what  the  question  in  the  proceeding  before  tiie  surrogate  was;  but 
Justice  Potter  had  a  right  to  assume  this  under  the  circimistances. 

I  think  the  judgment  should  be  affirmed,  with  costs. 

All  concur  for  affirmance.  Jtidgment  affirmed} 

^  "  White  V,  Carroll,  rightlv  understood,  is  in  harmony  with  the  other  cases. 
The  case  shows  that  the  court  held  that  the  answer  given  to  the  question  put  to  the 
defendant  as  a  witneas  before  the  surrogate  was  not  material  and  pertinent  to  the 
inquiry^  and  further  held  it  was  privileged  if  the  defendant,  when  he  ^ve  it.  in 
good  faith  believed  that  it  was;  and  whether  he  so  believed,  was  a  question  of  fact 
to  be  determined  by  the  jury.  Had  the  evidence  proved  that  the  answer  was  ma- 
terial and  pertinent,  the  court  must  have  held  it  privil^^  irrespective  of  the 
defendant's  belief  upon  the  subject."  Grover,  J.,  in  Marsn  v.  Ellsworth,  50  N.  Y. 
309.  313. 

''  It  seems  to  be  settled  by  the  English  authorities  that  judges,  counsel,  parties, 
and  witnesses  are  absolutely  exempted  from  liability  to  an  action  for  detamatoiy 
words  published  in  the  course  of  judicial  proceedings;  and  that  the  same  doctrine  is 
generally  held  in  the  American  courts,  with  the  qualification,  as  to  parties,  counsel, 
and  witnesses,  that  their  statements  made  in  the  course  of  an  action  must  be  perti- 
nent and  material  to  the  case.''  Lord,  J.,  in  McLaughlin  v.  Cowley,  127  Mass.  316, 
319. 

**  The  examination  of  witnesses  is  regulated  by  the  tribunal  before  which  thev 
testify,  and  if  witnesses  answer  pertinently  questions  asked  them  by  counsel  which 
are  not  excluded  by  ^e  tribunal,  or  answer  pertinentlsr  questions  asked  them  by 
the  tribunal,  they  ought  to  be  absolutely  protected.  It  is  not  the  duty  of  a  witness 
to  decide  for  himself  whether  the  questions  asked  him  under  the  direction  of  the 
tribunal  are  relevant.  As  the  witness  is  sworn  to  tell  the  whole  truth  relating  to  the 
matter  concerning  which  his  testimony  is  taken,  he  ought  also  to  be  absolutely  pro- 
tected in  t^tif ying  to  any  matter  which  is  relevant  to  the  inquiry,  or  which  he  rea- 
sonably believes  to  be  relevant  to  it.  But  a  witness  ought  not  to  be  permitted  with 
impumty  to  volunteer  defamatory  statements  which  are  irrelevant  to  the  matter  of 
inquiry,  and  which  he  does  not  believe  to  be  relevant.   This  statement  of  the  law 


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710  ^CE  V.  COOLIDGE  [CHAP.  VI. 

RICE  V.  COOLIDGE 

SuPBEME  Judicial  Court,  Massachusetts,  December  1, 1876. 
Reported  in  121  MassachtiseUa  ReportSj  393. 

Morton,  J.  This  is  an  action  of  tort.  The  principal  question  raised 
by  the  demurrer  is,  whether  the  plaintiff's  declaration  states  any  legal 
cause  of  action.  Each  count  alleges,  in  substance,  that  a  proceed- 
ing for  a  divorce  was  pending  in  the  courts  of  the  State  of  Iowa,  be- 
tween Joseph  S.  Coolidge  and  Ma^  L.  Coolidge,  in  which  the  latter 
alleged  that  the  said  Joseph  S.  CooUdge  had  been  guilty  of  adultery 
with  the  plaintiff;  that  the  defendants  conspired  together  and  with  the 

we  think,  is  supported  by  the  decisions  in  this  Commonwealth.  The  En^h 
decisions,  perhaps,  go  somewhat  further  than  this  in  favor  of  a  witness;  certainly 
they  apply  the  rule  liberally  for  his  protection.''  Field,  J.,  in  Wright  v.  Lothrop, 
149  Mass.  385,  389. 

The  principal  case  and  the  preceding  extracts  in  this  note  represent  the  views  of 
the  American  courts  in  general. 

King  v.  McKissick,  126  Fed.  215;  Lawson  v.  Hicks,  38  Ala.  279;  Wyatt  v.  Buell, 
47  Cal.  624;  Hollis  v.  Meux,  69  Cal.  625;  People  v.  Green,  9  Col.  506;  Lester  v. 
Thurmond,  51  Ga.  118;  Buschbaum  v.  Heriot,  5  Ga.  App.  521;  Spaids  v,  Barrett, 
57  HI.  289;  Fagan  v.  Fries,  30  HI.  App.  236;  Smith  v.  Howard,  28  la.  51;  Hawk  v. 
Evans,  76  la.  593:  Forbes  v.  Johnson.  11  B.  Mon.  48;  Morgan  v.  Booth,  13  Bush, 
480;  Stewart  v.  Hall,  83  Ky.  375;  Sebree  v.  Thompson,  126  Ky.  223;  Kelly  v,  La- 
fitte,  28  La.  Ann.  435:  Gardemal  v.  McT^Hlliams.  43  La.  Ann.  454;  Barnes  v. 
McCrat^,  32  Me.  442;  Hoar  o.  Wood,  3  Met.  193;  Kidder  v.  Parkhurst,  3  AU.  393^ 
McTAiighlin  V,  Cowley,  127  Mass.  316;  Wright ».  Lothrop,  149  Mass.  385;  Whea- 
ton  V.  Beecher,  49  Mich.  348;  Acre  v,  Star&^eather,  118  Mich.  214;  Hastings  v. 
Lusk,  22  Wend.  410;  Ring  v.  Wheeler,  7  Cow.  725;  Garr  v.  Selden,  4  N.  Y.  91; 
Marsh  v,  Ellsworth,  50  N.  Y.  309;  Moore  ».  Manufacturers'  Bank.  123  N.  Y.  420, 
136  N.  Y.  666;  Newfield  v,  Copperman,  15  Abb.  Pr.  n.  s.  360:  Perkins  v,  Mitchell, 
31  Barb.  461;  Dada  v.  Piper,  41  Hun.  254;  McLaughlin  v.  Charles,  60  Hun,  239; 
Beggs  V.  McCrea,  62  App.  Div.  39  (aemble);  Suydam  v,  Moffat,  1  Sandf.  459; 
Perzel  v.  Tousey,  52  N.  Y.  Super.  Ct.  79;  Cooper  v.  Phipps,  24  Or.  357;  Shadden  v. 
McElwee,  86  Tenn.  146;  Mower  v,  Watson,  11  Vt.  536:  Dunham  v.  Powers.  42  Vt. 
1;  Johnson  v.  Brown,  13  W:  Va.  71;  Jenninm  v,  Pame,  4  Wis.  358;  Calkins  v. 


Sunmer,  13  Wis.  193;  Larkin  v.  Noonan,  19  Wis.  82. 

StaUmerUa  volunteered  by  witness,    Viss  v.  Calligan,  91  Wash.  673. 

Statements  in  affidamt.  Perry  v.  Perry,  153  N.  C.  266;  Bagxett  ».  Grady.  154 
N.  C.  342:  Keeley  r.  Great  Northern  ft.  Co.,  156  Wis.  181.  But  see  Ritschy  v. 
Garrels,  195  Mo.  App.  670. 

Affidamt  in  legislaHve  investigation.    Tuohy  v.  Hassell,  35  Okl.  61. 

Defamatory  statements  at  creditors'  meeting.    Smith  v.  Agee,  178  Ala.  627. 

Statements  in  notice  of  foreclosure  sale.    Tiemey  v.  Ruppert,  150  App.  Div.  863. 

Report  of  grand  jury  without  indictment.  Rich  v,  Eason,  (Tex.  Civ.  App.)  180 
S.  W.  303. 

Statement  of  guardian  as  to  person  making  claim  against  ward^s  estate.  Mamey 
V.  Joseph,  94  Kan.  18. 

Lfetier  from  one  attorney  to  another ,  not  confined  to  the  matters  in  litigation. 
Savage  v.  Stover,  86  N.  J.  Law,  478. 

Message  of  a  mayor,  A  communication  from  the  mayor  of  a  city  to  the  common 
council  is  aMolutely  privileged.    Trebilcock  v.  Anderson,  117  Mich.  39. 

Official  statements  of  officers  of  state  are  absolutely  privileged.  Chatterton  v.  Sec- 
retary of  State,  [1895]  2  Q.  B.  189;  Spalding  v.  Vilas,  161  U.  S.  483. 

Statements  of  administrative  officers.  Farr  v.  Valentine,  38  App.  D.  C.  413;  Has- 
kell V.  Perkins,  165  111.  App.  144;  Tanner  v.  Stevenson,  138  Ky.  578;  Peterson  v. 
Steenerson.  113  Minn.  87:  Johnson  v.  Marsh,  82  N.  J.  Law,  4  (notice  not  to  sell 
liquor  to  alleged  drunkard) ;  Bingham  t;.  Gaynor,  203  N.  Y.  27. 


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CHAP.  VI.]  RICE  V.  COOLIDGE  711 

said  Mary  L.  Coolidge  to  procure  and  suborn  witnesses  to  falsely  tes- 
tify in  support  of  said  charges  of  adultery;  and  that  the  defendants,  in 
pursuance  and  execution  of  said  conspiracy,  did  procure  and  suborn 
certain  witnesses  named,  to  testify  in  said  divorce  suit,  and  to  falsely 
swear  to  criminal  sexual  intercourse  between  thfe  plaintiff  and  said 
Joseph  S.  Coolidge,  and  between  the  plaintiff  and  other  persons,  and 
to  various  other  acts  and  tilings  which,  if  believed,  would  tend  to  bring 
disgrace  and  infamy  upon  the  plaintiff. 

Three  of  the  counts  also  aU^e  that  the  defendants,  in  pursuance  and 
execution  of  the  conspiracy,  published  or  caused  to  be  published  a 
priiSted  pamphlet  in  which  tiie  false  testnnony  of  such  witnesses  was 
repeated,  and  made  the  pretext  for  false  and  maUcious  charges  upon 
the  plaintiff's  character  and  good  name. 

llie  gist  of  the  plaintiff's  case  is  that  the  defendants  have  suborned 
witnesses  to  falsely  swear  to  defamatory  statements  concerning  her, 
and  have  done  other  connected  acts  in  pur^ance  of  a  scheme  or  plan 
to  defame  her.  The  aU^ed  conspiracy  or  combination  is  not  one  of 
the  elements  of  the  cause  of  action.  That  is  not  created  by  the  con- 
spiracy, but  by  thewrongful  acts  done  by  the  defendants  to  the  injiuy 
of  the  plaintiff.  If  the  acts  charged,  when  done  by  one  alone,  are  not 
actionable,  they  are  not  made  actionable  by  being  done  by  several  in 
pursuance  of  a  conspiracy.  Wellington  v,  ftnall,  3  Cush.  145;  Parker 
t^.  Huntington,  2  Gray,  124;  Bowen  v.  Matheson,  14  Allen,  499. 

The  question  is  presented,  therefore,  whether  the  plaintiff  can  main- 
tain an  action  of  tort,  in  the  nature  of  the  common-law  action  on  the 
case,  against  the  defendants  for  suborning  witnesses  to  falsely  swear  to 
defamatory  statements  concerning  the  plaintiff  in  a  suit  in  which 
neither  of  the  parties  to  this  suit  was  a  party. 

It  requires  no  argument  to  show  that  tiie  acts  charged  as  done  by 
the  defendants,  if  proved,  are  a  great  wrong  upon  the  plaintiff.  It  is  a 
^neral  rule  of  the  common  law  that  a  man  shall  have  a  remedy  for 
every  injury.  The  plaintiff  should  have  a  remedy  for  the  injury  done 
to  her  by  the  defendants,  unless  there  are  some  other  rules  of  law,  or 
some  controlling  considerations  of  public  policy,  which  take  the  case 
out  of  this  rule. 

The  defendants  contend  that  the  witnesses  who  uttered  the  defama- 
tory statements  are  protected  from  an  action,  because  they  were  state- 
ments made  in  the  course  of  judicial  proceedings,  and  that  therefore  a 
person,  who  procured  and  suborned  them  to  make  the  statements,  is 
not  liable  to  an  action. 

It  seems  to  be  settled  by  the  English  authorities  that  judges,  coun- 
sel, parties,  and  witnesses  are  absolutely  exempted  from  liabiUty  to  an 
action  for  defamatory  words  published  in  the  course  of  judicial  pro- 
ceedings. Henderson  v.  Broomhead,  4  H.  &  N.  569;  Revis  v.  Smith, 
18  C.  B.  126;  Dawkins  v.  Rokeby,  L.  R.  8  Q.  B.  255,  and  cases  cited; 
aflSrmed,  L.  R.  7  H.  L,  744;  Seaman  v,  Netherclift.    The  same  doc- 


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712  RICE  V.  COOLIDOE  [CHAP.  IV. 

trine  is  generally  held  in  the  American  courts,  with  the  qualification^ 
as  to  parties,  counsel,  and  witnesses,  that,  in  order  to  be  privileged, 
their  statements  made  in  the  course  of  an  action  must  be  pertinent 
and  material  to  the  case.  White  v.  Carroll,  Smith  v.  Howard,  28  Iowa, 
51;  Barnes  v.  McCrate,  32  Maine,  442;  Kidder  v.  Parkhurst,  3  Allen 
393;  Hoar  v.  Wood,  3  Met.  193.  In  the  last-cited  case.  Chief  Justice 
Shaw  says:  "  We  take  the  rule  to  be  well  settled  by  the  authorities, 
that  words  spoken  in  the  course  of  judicial  proceedings,  though  they 
are  such  as  impute  crime  to  another,  and  therefore,  if  spoken  else- 
where, would  import  maUce  and  be  actionable  in  themselves,  are  not 
actionable  if  they  are  applicable  and  pertinent  to  the  subject  of 
inquiry." 

We  assume,  therefore,  for  the  purposes  of  this  case,  that  the  plainti£F 
cannot  maintain  an  action  against  the  witnesses  in  the  suit  in  Iowa, 
for  their  defamatory  statements,  though  they  were  false.  But  it  does 
not  follow  that  she  may  not  maintain  an  action  against  those  who, 
with  malice  and  intent  to  injure  her,  procured  and  suborned  those 
witnesses  to  testify  falsely. 

The  reasons  why  the  testimony  of  witnesses  is  privileged  are  that  it 
is  given  upon  compulsion  and  not  voluntarily,  and  that,  in  order  to 
promote  die  most  thorou^  investigation  in  courts  of  justice,  public 
poUcy  requires  that  witnesses  shall  not  be  restrained  by  the  fear  of 
being  vexed  by  actions  at  the  instance  of  those  who  are  dissatisfied 
witii  their  testimony.^  But  these  reasons  do  not  apply  to  a  stranger  to 
the  suit,  who  procures  and  suborns  false  witnesses,  and  the  rule  should 
not  be  extended  beyond  those  cases  which  are  within  its  reasons. 

The  argument,  that  an  accessory  cannot  be  held  civilly  liable  for  an 
act  for  which  no  remedy  can  be  had  against  the  principal,  is  not  satis- 
factory to  our  minds.  The  perjured  witness  and  the  one  who  suborns 
him  are  joint  tort-feasors,  acting  in  conspiracy  or  combination  to  in- 
jure the  party  defamed.  The  fact  that  one  of  tiiem  is  protected  from  a 
civil  suit  by  a  personal  privil^e  does  not  exempt  the  other  joint  tort- 
feasor from  such  suit.  A  similar  argument  was  disregarded  by  the 
court  in  Emery  v.  Hapgood,  7  Gray,  55,  where  it  was  held  that  the 
defendant,  who  instigated  and  procured  an  officer  to  arrest  the  plaintiff 
upon  a  void  warrant,  was  liable  to  an  action  of  tort  therefor,  although 
the  officer  who  served  the  warrant  was  protected  from  an  action,  for 
reasons  of  pubUc  poUcy. 

^  It  is  wen  settled  that  no  action  is  allowed  against  a  witness  for  damage  caused 
bv  his  perjury.  Dainport  v.  Sympson,  Cro.  El.  520.  Ow.  168,  2  And.  47,  s.  c; 
Eyres  v.  Sedgewicke,  Cro.  Jac.  601;  Yelv.  142,  2  Roll.  R.  197,  s.  c;  Wimberly  v. 
Thompson,  Noy.  6;  Harding  v.  Bodman,  Hutt.  11;  Coxe  v,  Smithe,  1  Lev.  119; 
Taylor  v.  Bidwell,  65  Cal.  489;  Bostwick  v.  Lewis,  2  Day,  447;  Grove  v,  Branden- 
burg, 7  Blackf.  239;  Dunlap  v.  Glidden,  31  Me.  435;  Severance  v,  Judkins,  73  Me. 
376,  379;  Oaring  v,  Fraser,  76  Me.  37;  Phelps  v.  Steams,  4  Gray,  105;  Curtis  v, 
Fairbanks,  16  N.  H.  542;  Smith  v.  Lewis,  3  Johns.  157;  Cunningham  v.  Brown, 
18  Vt.  123. 

See  Bell  «.  Senneff,  83  111.  122.     C(Mnpare  Schaub  v.  O'Ferrell,  116  Md.  131. 


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CHAP.  VI.]  RICE  V.  COOUDGE  713 

The  defendants  rely  upon  the  cases  of  Bostwiek  v.  Lewis,  2  Day, 
447,  and  Smith  v.  Lewis,  3  Johns.  157.  But  those  cases  turn  upon  a 
principle  which  does  not  apply  in  the  case  at  bar.  The  facts  in  those 
cases  were  as  follows:  Lewis  brought  an  action  in  Connecticut  against 
several  defendants,  in  which  he  prevailed.  Afterwards  Bostwiek,  one 
of  the  defendants  in  the  original  action,  brought  an  action  in  Con- 
necticut against  Lewis,  for  suborning  a  witness  in  that  action;  and 
Smith,  another  of  the  defendants,  brought  a  similar  action  in  New 
York.  It  was  held  in  each  case  that  the  action  could  not  be  main- 
tained, because,  in  the  language  of  Mr.  Justice  Kent,  it  was  "  an  at-j 
tempt  to  overhaul  the  merits  ''  of  a  former  suit.  The  case  of  Dunlap 
V.  Glidden,  31  Maine,  435,  is  to  the  same  effect.  Although  the  parties 
to  a  former  action  cannot  retry  its  merits,  while  a  judgment  therein  is 
in  force  and  imreversed,  yet  any  person  who  was  not  a  party  to  the 
action,  or  in  privity  with  a  party,  may  in  a  collateral  action  impeach 
the  judgment  and  overhaul  the  merits  of  the  fonner  action.  Those 
cases,  therefore,  are  not  decisive  of  the  case  at  bar.^ 

The  defendants  argue  that  an  action  of  this  natiu^  ought  not  to  be 
maintained,  because  the  plaintiflF  therein  might,  by  the  testimony  of  a 
single  witness,  prove  that  a  witness  in  another  action  had  committed 
perjury.  The  rule  of  law,  that  a  man  cannot  be  convicted  of  perjury 
upon  the  unaided  testimony  of  one  witness,  is  a  rule  applicable  only  to 
criminal  proceedings.  The  argument  may  go  to  show  that  the  rule 
ought  to  be  extended  to  civil  cases  in  which  perjury  is  charged  against 
a  witness,  but  it  does  not  furnish  a  satisfactory  reason  why  a  plaintiff 
should  be  altogether  deprived  of  a  remedy  for  an  injury  inflicted  upon 
him. 

It  is  also  urged,  as  an  argument  against  the  maintenance  of  this 
action,  that  it  is  a  novelty.  •  The  fact  that  an  action  is  without  a  prec- 
edent would  call  upon  the  court  to  consider  with  care  the  question 
whether  it  is  justified  by  correct  principles  of  law;  but  if  this  is  found, 
it  is  without  weight.  In  answer  to  the  same  argument,  Lord  Chief 
Justice  Willes  said:  "  A  special  action  on  the  case  was  introduced  for 
this  reason,  that  the  law  will  never  suffer  an  injury  and  a  damage  with- 
out a  remedy,  but  there  must  be  new  facts,  in  every  special  action  on 
the  case."    Winsmore  v,  Greenbank,  Willes,  577. 

Upon  a  careful  consideration  of  the  case,  we  are  of  opinion  that 
there  are  no  rules  of  law  and  no  reasons  of  public  poUcy  which  deprive 
the  plaintiff  of  her  remedy  for  the  wrong  done  her  by  the  defendants 
by  suborning  witnesses  to  defame  her  character.* 

Demurrer  ovemUed. 

»  See  also  Taylor  v.  BidwelCoS  Cal.  489;  Curtis  v,  Fairbanks,  16  N.  H.  542; 
Stevens  v.  Rowe,  59  N.  H.  578. 

*  A  part  of  the  opinion  relating  to  points  of  pleading  is  omitted. 


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714  RYALLS  V.  LEADER  [CHAP.  VI. 

RYALLS  V.  LEADER 

In  the  Exchequer,  May  26, 1866. 
Reported  in  Law  Reports,  1  Exchequer,  296. 

Declaration  on  a  libel  published  of  the  plaintiff  by  the  defendants, 
in  a  newspaper  called  the  ''  Sheffield  and  Rotheiiiam  Independent/' 

Plea.    Not  guilty.    Issue  thereon. 

The  Ubel  complained  of  was  contained  in  a  report  of  an  examination 
of  a  debtor  in  custody,  held  in  York  Castle,  before  the  r^istrar  of  the 
Leeds  Bankruptcy  Court,  pursuant  to  the  provisions  of  the  Bank- 
ruptcy Act,  1861  (24  &  25  Vict.  c.  134),  ss.  101, 102;  and  it  conveyed 
an  imputation  on  the  solvency  of  the  plaintiff,  who  had  been  tiie 
debtoif  s  partner.  The  cause  was  tried  at  the  last  Leeds  spring  assizes 
before  Keating,  J.,  when,  the  publication  of  the  defamatory  matter 
having  been  proved,  the  learned  judge  told  the  jury  that  "  the  Ubel 
was  a  privileged  communication,  and  that  the  defendants  were  entitled 
to  the  verdict  if  the  jury  thought  that  the  Ubel  was  a  fair  report  of  the 
proceedings  before  the  r^istrar  of  the  Court  of  Bankruptcy,  and  pub- 
lished without  maUce.''  The  report  contained  no  original  comment 
on  what  passed.    The  jury  found  a  verdict  for  the  defendants. 

In  Easter  Term  last,  a  rule  nisi  was  obtained  for  a  new  trial.^ 

Pollock,  C.  B.  I  am  of  opinion  that  my  Brother  Keating  was  right 
in  his  ruling.  The  complaint  here  made  is  that  certain  proceedings 
held  by  a  registrar  in  bankruptcy  in  York  Castle,  and  publiished  by  the 
defendant,  were  Ubellous  on  the  plaintiff.  The  defence  is,  that  the 
alleged  Ubel  was  contained  in  a  fair,  correct,  and  bona  fide  report  of 
what  took  place;  and  if  these  proceedings  were  in  a  pubUc  court,  and 
the  pubUcation  was  fair,  there  is  no  foundation  for  this  action.*   The 

^  The  arguments  and  the  concurring  opinions  of  Martin  and  Channell,  BB.,  are 
omitted. 

«  Risk  Allah  Bey  v.  Whitehurst,  18  L.  T.  Rep.  616 :  Hope  v.  Leng,  23  T.  L.  R.  243; 
Furniss  v.  Cambridge  News,  23  T.  L.  R.  705;  Todd  v.  Every  Evening  Co.,  (Del.) 
62  Atl.  1089  (aembU):  Blodgett  v.  Des  Moines  Co^  (la.)  113  N.  W.  821;  BiUet  v. 
Publishing  Co..  107  La.  751  (semble);  McBee  v.  Fulton,  47  Md.  403;  Cowley  v, 
Pulsifer,  137  Mass.  392;  Conner  v.  Standard  Co.,  183  Mass.  474;  Nixon  v.  Dis- 
patch Co.,  101  Minn.  309;  Hawkins  v.  Globe  Co.,  10  Mo.  App.  174;  Boogher  v. 
Knapp,  97  Mo.  122;  Brown  v.  Knapp,  213  Mo.  655  (aenible);  Brown  v.  Globe  Co., 
213  Mo.  611;  Thompson  v.  Powning,  15  Nev.  195;  Edsall  v.  Brooks,  17  Abb.  Pr. 
221;  N.  Y.  Code  dv.  Proc»  §  1907;  Ackerman  v.  Jones,  37  N.  Y.  Super.  Ct.  42: 
Salisbury  v.  Union  Co„  45  Hun,  120;  Hart  v.  Sim  Co^  79  Hun,  358;  Cincinnati 
Co.  V.  Tmiberlake,  10  Ohio  St.  548;  Metcalf  v.  Times  Co.,  20  R.  I.  674;  Saunders 
V,  Baxter,  6  Heisk.  369;  American  Co.  v.  Gamble,  115  Tenn.  663;  People  v.  Glass- 
man,  12  Utahj  238  Accord. 

So  publication  of  copies  from  the  register  of  judgments  is  privileged.  Searles  v, 
Scarlett,  [1892]  2  Q.  B.  56. 

Publication  of  papers  filed  in  the  clerk's  office,  out  not  produced  in  open  court,  is 
not  privileged.  Meeker  v.  Post  Pub.  Co.,  45  Col.  355;  Cowley  v.  Pjilsifer,  137 
Mass.  392;  Lundin  v.  Post  Pub.  Co.,  217  Mass.  213;  Park  v.  Detroit  Co.,  72  Mich. 
660;  Barber  v.  St.  Louis  Co.,  3  Mo.  App.  377;  Stuart  v.  Press  Co.,  83  App.  Div. 


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CHAP.  VI.]  RYALLS  V.  LEADER  715 

only  question  then  is,  whether  the  registrar's  court  was  under  the  cir- 
cumstances a  pubUc  court.  I  think  that  it  was.  We  ought,  in  my 
opinion,  to  make  as  wide  as  possible  the  right  of  the  public  to  know 
what  takes  place  in  any  court  of  justice,  and  to  protect  a  fair  bona  fide 
statement  of  proceedings  there.  The  jury  found  that  the  publication 
of  this  report  was  bona  fide y  and  the  verdict,  therefore,  ou^t  not  to  be 
set  aside. 

Bramwbll,  B.  I  am  of  the  same  opinion.  I  think  that  this  court 
was  a  public  court.  That  is  shown  from  the  terms  of  ss.  101  and  102. 
And  even  if  it  were  not  so,  yet  if  the  officer  who  holds  it  chooses  to 
make  it  public,  it  would  be  public  for  this  purpose.  Then  as  to  the 
point  made,  that  nothing  ought  to  be  published  affecting  a  third  party, 
even  when  relevant  to  the  inquiry,  I  think  there  is  no  such  restriction. 
Those  who  are  present  hear  aU  the  evidence,  relevant  or  irrelevant,  and 
those  who  are  absent,  may,  as  far  as  I  can  see,  have  all  that  is  said 
reported  to  them.  The  doctrine  contended  for  is  an  entire  novelty, 
because,  if  sound,  every  witness  might  bring  an  action  against  the 
newspaper  publisher  reporting  his  evidence,  and  call  upon  that  pub- 
lisher to  prove  all  the  libellous  statements  which  might  be  contained  in 
his  examination  or  cross-examination.  I  do  not  think  that  there  is  any 
such  qualification  as  that  suggested,  nor  do  I  concur  in  the  other  sug- 
gestion made  to  us,  viz.,  that  what  is  irrelevant  and  libellous  on  a  third 
person  is  not  protected.  There  are  cases  where  an  individual  must 
suffer  for  the  public  good,  and  it  is  difficult  to  draw  the  line  between 
relevancy  and  irrelevancy.  My  opinion  is,  that  when  once  you  estab- 
lish that  a  court  is  a  public  court,  a  fair  bona  fide  report  of  all  that 
passes  there  may  be  published.  Possibly  this  privilege  is  appUed  to 
coiuts  of  justice,  because  needless  scandals  are  usually  avoided  in 
them.    I  am  therefore  of  opinion  that  this  rule  should  be  discharged. 

Rule  discharged. 

467;  Byers  v.  Meridian  Printing  Co.,  84  Ohio  St.  408;  American  Co.  v.  Gamble, 
116  Tenn.  663;  Houston  Pub.  Co.  v.  McDavid,  (Tex.  Civ.  App.)  173  S.  W.  467; 
Haley  v.  Sentinel  Co.,  133  Wis.  20. 

Report  of  criminci  proceeding  before  magieiraU  with  no  jurisdiction.  Lee  v. 
Brooklyn  Pub.  Co.,  209  N.  Y.  245. 

Report  of  investigation  bdore  grand  jury.  Poston  v.  Washington  R.  Co.,  36  App. 
D.  C.  359;  Sweet  v.  Post  Publishing  Co.,  215  Mass.  450. 

Report  in  advance  ofjvdicial  proceedirig  as  to  evidence  to  be  adduced.  Houston 
Pub.  Co.  v.  Tieman,  (Tex.  Qv.  App.)  171  S.  W.  542.  See  Kelly  v.  Independent 
Pub.  Co.,  45  Mont.  127. 

Humorous  report.    Bresslin  t;.  Star  Co.,  85  Misc.  609. 

^Matter  added  to  the  report.   Smith  v.  New  Yorker  Staats  Zeitimg,  154  App.  Div. 
458. 


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716  USILL  V.  HALES  [CHAP.  VI. 

USILL  V.  HALES 

In  the  Common  Pleas  Division,  Januaby  30, 1878. 

Reported  in  3  Common  Plea»  Dixisum^  319. 

Lord  Coleridge,  C.  J.^  I  am  of  opinion  that  this  rule  must  be 
discharged. 

This  was  an  action  against  the  proprietor  of  a  newspaper  for  pub- 
lishing a  bona  fide  and  fair  report  of  proceedings  before  a  magistrate. 
Three  persons,  surveyors,  who  had  been  employed  by  a  civil  engineer 
to  assist  in  the  construction  of  a  railway  in  Ireland,  hearing  that 
their  employer  had  been  paid,  and  conceiving  that  the  money  due 
to  them  had  been  improperly  withheld  by  him,  went  before  a  police 
magistrate  in  London,  and  ( I  must  take  it  for  the  purpose  of  my  judg- 
ment, and  do  so  take  it)  appUed  to  him  for  a  summons  or  order  under 
the  Masters  and  Workman's  Act.  In  the  result,  the  magistrate  thought 
that  the  facts  stated  by  the  complainants  showed  no  ground  for  a  sum- 
mons against  the  plaintiff  under  the  Act;  and  therefore  in  the^  result 
it  turned  out  that,  in  a  certain  sense,  an  application  had  been  made  to 
the  magistrate  with  regard  to  a  matter  as  to  which  he  had  no  jurisdic- 
tion. I  say  in  a  certain  sense:  but  it  has  been  long  held,  and  I  think 
most  properly  held,  that  it  is  not  the  result  but  the  nature  of  the  apph- 
cation  made  to  the  magistrate  which  founds  his  jurisdiction :  and  that, 
wherever  an  appUcation  is  made  to  a  magistrate  as  to  a  matter  over 
which,  supposing  the  facts  to  bear  out  the  statement,  he  has  jurisdic- 
tion, he  then  has  jurisdiction  to  ascertain  whether  the  facts  maJce  out  a 
case  for  the  exercise  of  that  jurisdiction  which,  if  the  facts  make  out 
the  case,  undoubtedly  he  has. 

It  has  been  laid  down  again  and  again  in  broad  terms  that  the  pub- 
lication of  the  proceedings  in  courts  of  justice  is  privileged  if  the  report 
of  such  proceedings  be  fair  and  honest;  and  this  is  so  foimd  to  be. 
An  attempt  however  has  been  made  (and  Mr.  Shortt  will  allow  me  to 
say  that,  if  it  were  possible  to  have  succeeded,  I  think  his  argument 
would  have  succeeded,  because  he  has  said  everything  that  could  be 
said,  and  has  said  it  well)  to  distinguish  this  case  and  take  it  out  of 
the  general  proposition,  by  bringing  it  within  an  undoubted  qualifica- 
tion which  has  been  grafted  upon  that  general  proposition,  viz.,  that 
the  appUcation  to  the  magistrate  here  was  what  may  be  called  an  ex 
parte  or  a  preliminary  proceeding.  Now,  there  is  no  doubt  that,  in 
many  cases  to  which  Mr.  Shortt  has  referred,  the  term  "  ex  parte  pro- 
ceeding "  has  been  over  and  over  again  used  by  judges  of  great  emi- 
nence, sometimes  aflSrmatively  to  say  that  an  ex  parte  proceeding  is 
not  privileged,  and  sometimes  negatively  to  say,  this,  being  a  proceed- 
ing not  ex  parte y  is  privileged;  and  I  do  not  doubt  for  my  own  part 

1  Only  the  opinion  of  Lord  Coleridge,  and  that,  too,  slightly  abridged,  is  given. 
Lopes,  J.,  concurred. 


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CHAP.  VI.]  USILL  V.  HALES  717 

that,  if  this  argument  had  been  addressed  to  a  court  some  sixty  or 
seventy  years  ago,  it  might  have  met  with  a  different  result  from  that 
which  it  is  about  to  meet  with  to-day.  Speaking  frankly,  —  and  it  is 
useless,  if  a  case  has  made  a  certain  impression  upon  your  mind  after 
you  have  done  the  best  you  can  to  understand  it,  to  say  it  has  not 
made  that  impression,  —  it  seems  to  me  quite  plain  that  in  such  cases 
as  Rex  v.  Fleet,  1  B.  &  A.  379,  judgments  of  great  judges  do  lay  down 
the  rule  that  an  ex  parte  or  preliminary  proceeding  is  not  privileged  on 
the  ground,  good  or  bad,  that  it  is  very  hard  upon  an  individual  to 
have  a  matter  stated  against  him  behind  his  back  which  he  has  no 
means  of  answering;  and  that  oftentimes  an  accused  person  will  come 
to  trial,  if  he  be  tried,  with  a  heavy  weight  of  prejudice;  where  the  case 
against  him  has  been  reported  in  the  public  newspapers,  and  his  own 
answer,  if  he  has  one,  from  the  necessities  of  the  case  has  not  been 
similarly  made  known.  No  doubt  there  are  very  strong  observations 
in  those  cases  adopted  in  Duncan  v,  Thwaites,  3  B.  &  C.  656,  which  go 
very  far  to  maintain  that  proposition.  TBiere  is  also  a  dictum  of  one 
of  the  greatest  authorities  in  our  law,  Lord  EUdon,  than  whom  few 
greater  lawyers  have  ever  sat  in  Westminster  Hall,  who  is  reported,  by 
Mr.  Starkie,  Starkie  on  Libel,  4th  ed.,  p.  191  (9),  to  have  once  ob- 
served that  he  recollected  the  time  when  it  would  have  been  matter  of 
surprise  to  every  lawyer  in  Westminster  Hall  to  learn  that  the  publica- 
tion of  ex  parte  proceedings  was  legal. 

But  we  are  not  now  living,  so  to  say,  within  the  shadow  of  those 
cases:  and  it  is  idle  to  deny  that  there  are  cases  since  that  time,  in 
which  the  decisions  I  have  just  now  referred  to  have  been  brought  to 
the  attention  of  the  learned  judges,  where  the  courts  have  been  pressed 
with  the  authority  of  those  decisions,  and  have  come  to  conclusions 
which  it  is  not  for  me  to  say  are  inconsistent,  but  which  I  am  perfectly 
unable  to  reconcile  with  those  earHer  cases:  and  I  find  what  I  think  is 
excellent  good  sense  in  the  judgment  of  the  Court  of  Queen's  Bench  in 
the  case  of  Wason  v.  Walter,  which  explains  how  that  is.  It  is  a  pas- 
sage which  one  of  the  learned  counsel  read  to  us,  and  it  is  a  passage 
which  upon  the  whole  I  should  desire  to  adopt  and  adhere  to :  "  What- 
ever disadvantages  attach  to  a  system  of  unwritten  law,  —  and  of  this 
we  are  fully  sensible, — it  has  at  least  this  advantage,  that  its  elastic- 
ity enables  those  who  administer  it  to  adapt  it  to  the  varying  con- 
ditions of  society  and  to  the  requirements  and  habits  of  the  age  in 
which  we  live,  so  as  to  avoid  the  inconveniences  and  injustice  which 
arise  where  the  law  is  no  longer  in  harmony  with  the  wants  and  usages 
and  interests  of  the  generation  to  which  it  is  immediately  appUed. 
Our  law  of  libel  has  in  many  respects  only  gradually  developed  itself 
into  anything  like  satisfactory  and  settled  form.  The  full  liberty  of 
public  writers  to  comment  on  the  conduct  and  motives  of  public  men 
has  only  in  very  recent  times  been  recognized."  And  then  the  passage 
goes  on,  —  "  Even  in  quite  recent  days  judges,  in  holding  the  publica- 


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718  USILL  V.  HALES  [CHAP.  VI. 

tion  of  the  proceedings  of  courts  of  justice  lawfril,  have  thought  it 
necessary  to  distinguish  what  we  call  ex  parte  proceedings  as  a  probable 
exception  from  the  operation  of  the  rule.  Yet  ex  parte  proceedings 
before  magistrates,  and  even  before  this  court,  as,  for  instance,  on 
appUcations  for  criminal  informations,  are  published  every  day;  but 
such  a  thing  as  an  action  or  indictment  founded  on  a  report  of  such  an 
ex  parte  proceeding  is  unheard  of;  and,  if  any  such  action  or  indict- 
ment should  be  brought,  it  would  probably  be  held  that  the  true 
criterion  of  the  privilege  is  not  whether  the  report  was  or  was  not  ex 
parte,  but  whether  it  was  a  fair  and  honest  report  of  what  had  taken 
place,  published  simply  with  a  view  to  the  honest  pubUcation,  and 
innocent  of  aU  intention  to  do  injury  to  the  reputation  of  the  party 
affected."  Now,  to  the  general  line  of  argument  in  that  passage,  and 
to  the  accuracy  of  the  statement  in  the  last  sentence  I  have  read,  I 
entirely  adhere;  and  it  is  familiar  that  not  only  are  unimportant  cases 
and  ex  parte  proceedings  published,  but  a  particular  class  of  inquiries 
which  in  scnne  of  the  earlier  cases  I  find  actually  by  name  excluded 
from  the  privilege,  —  I  mean  inquiries  before  a  coroner,  —  are  in 
cases  which  may  be  supposed  to  interest  the  pubUc  reported  in  all  the 
newspapers  in  the  kingdom ;  and  yet  no  one  ever  heard,  at  least  since  I 
have  known  Westminster  Hall,  of  an  action  being  brought  by  a  per- 
son injuriously  affected  by  such  publication,  where  the  report  is  honest 
and  bona  fide,  and  published  without  intention  to  injure.  That,  there- 
fore, seems  to  introduce  this  element  into  the  determination  of  these 
cases,  that  there  is  a  certain  elasticity  in  the  rules  which  apply  to  ques- 
tions of  privil^e  (development  is  perhaps  the  more  correct  expres- 
sion), and  that  the  courts  have  from  time  to  time  appUed  as  best  they 
may  what  they  think  is  the  good  sense  of  the  rules  which  exist  to  cases 
which  have  not  been  positively  decided  to  come  within  them.  If  there 
had  been  a  case  directly  in  point  in  which  a  proceeding  such  as  this, 
where  the  matter  was  at  an  end,  and  where  the  pubUcation  had  been 
found  by  the  jury  to  have  been  bona  fide,  honest,  and  fair,  had  been 
held  by  a  court  of  co-ordinate  jurisdiction  not  to  be  privileged,  I  do 
not  hesitate  to  say  for  my  own  part  that  I  should  have  gladly  acted 
upon  it,  because  I  do  not  disguise  that  my  own  judgment  is  not  at  all 
satisfied  with  the  enormous  advantage  to  the  pubUc  of  having  every 
small  personal  matter  reported  day  by  day,  often  to  the  extreme  pain 
and  injury  of  individuals,  which  is  supposed  to  form  its  justification. 
Nevertheless,  I  feel  it  to  be  the  duty  of  a  judge  not  to  declare  what  he 
considers  the  law  ought  to  be,  but  to  decide  according  to  what  to  the 
best  of  his  judgment  he  finds  it  is :  and,  if  he  finds  a  principle  laid  down 
upon  competent  authority,  it  is  far  better  to  accept  and  apply  it 
broadly  and  honestly,  even  if  he  is  not  in  his  own  mind  satisfied  with 
the  foundation  of  the  rule,  than  to  attempt  to  fritter  it  away  in  its 
appUcation  to  cases  which  manifestly  come  within  it. 


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CHAP.  VI.]  USILL  V.  HALES  719 

I  come  therefore  to  the  consideration  of  this  case  feeling  that  the 
general  tendency  of  the  law  has  been  to  hold  such  a  publication  as  this 
to  be  within  the  protection  of  the  privilege.  Now,  I  do  find  one  case 
which  to  the  best  of  my  judgment  appears  to  cover  this  case,  and  from 
which  I  am  imable,  according  to  the  principle  laid  down  in  it,  to  dis- 
tinguish the  case  now  before  us.  It  is  a  case  to  which  much  reference 
has  been  made,  and  which  Mr.  Shortt  has  dealt  with  at  considerable 
length,  viz.,  Lewis  v.  Levy;  and  it  has  no  doubt  a  most  important 
bearing  upon  this  question.  I  do  not  propose  to  read  the  elaborate 
judgment  delivered  by  Lord  Campbell  in  that  case:  it  is  well  summed 
up  in  these  words:  "  The  rule,  that  the  pubUcation  of  a  fair  and  cor- 
rect report  of  proceedings  taking  place  in  a  public  coiu-t  of  justice  is 
privil^ed,  extends  to  proceedings  taking  place  publicly  before  a 
magistrate  on  the  preliminary  investigation  of  a  criminal  charge  ter- 
minating in  the  discharge  by  the  magistrate  of  the  party  charged."  I 
am  perfectly  aware  that  there  may  be  subtle  distinctions,  —  distinc- 
tions which  I  will  not  say  are  merely  shadowy,  but  which  are  subtle,  — 
between  the  facts  of  that  case  and  those  of  the  case  now  before  us :  but 
I  cannot  disguise  from  myself  that  the  ratio  decidendi  and  the  argu- 
ment by  which  the  cowrt  was  there  led  to  hold  such  proceedings  to  be 
privileged,  do  in  effect  cover  this  case.  I  am  of  opinion  that  this  is  a 
case  in  which  there  was  a  judicial  proceeding  terminating,  not  in  the 
discharge  of  the  party  accused,  because  there  was  no  such  person 
before  the  magistrate,  but  terminating  in  a  refusal  to  proceed  with  the 
chai^  and  to  set  the  criminal  process  in  motion.  I  am  imable  to  dis- 
tinguish the  principle  of  Lewis  v.  Levy  from  that  involved  in  the  pres- 
ent case;  and  I  adopt  what  is  said  there  of  the  old,  —  and  I  may  say 
great  case,  because  it  was  decided  by  judges  of  high  authority,  —  of 
Curry  v.  Walter,  so  far  back  as  the  year  1796.  That  case  is  adopted  by 
the  Court  of  Queen's  Bench  in  a  written  judgment  in  the  year  1858,  as 
a  ground  of  their  decision;  and,  whatever  may  have  been  said  about 
it  in  some  of  the  intermediate  cases,  and  the  doubts  that  have  been 
thrown  upon  it  by  some  eminent  judges,  it  must  I  think  be  considered 
to  be  completely  rehabilitated  by  the  judgment  of  the  Coiut  of 
Queen's  Bench  in  Lewis  v.  Levy,  E.  B.  &  E.  537.  I  am  content,  there- 
fore, to  rest  my  judgment  in  this  case  upon  the  principles  laid  down  in 
Curry  v.  Walter,  1  B.  &  P.  525,  and  delib^irately  reaflSrmed  in  Lewis  v. 
LeVy,  E.  B.  &  E.,  at  p.  559,  and  to  say  that,  upon  the  principles  there 
laid  down,  I  am  of  opinion  that  this  rule  must  be  discharged. 

Rule  discharged.^ 

1  Curry  t;.  Walter,  1  Esp.  456,  1  B.  &  P.  525;  Lewis  v.  Levy,  E.  B.  &  E.  537; 
Kimber  v.  Press  Association,  [1803]  1  Q.  B.  65;  McBee  v,  Fulton,  47  Md.  403: 
Salisbury  v.  Union  Co.,  45  Hun,  120  {semble);  Metcalf  v.  Times  Co.,  20  R.  I.  674 
(semble):  Brown  v.  Providence  Co.,  25  R.  I.  117  (semble)  Accord, 

See  Duncan  v.  Thwaites,  3  B.  &  C.J556:  Parsons  v.  Age  Herald  Pub.  Co.,  181 
Ala.  439;  Todd  v.  Every  Evening  Co.,  (Del.)  62  Atl.  1089;  Flues  v.  New  Nonpareil 


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720  WASON  V.  WALKER  [CHAP.  VI. 

WASON  V.  WALKER 
In  the  Queen's  Bench,  November  25, 1868. 

Reported  in  Law  Reports^  4  Queen's  Bench,  73. 

The  judgment  of  the  court  was  delivered  by 

CocKBURN,  C.  J.i  This  case  was  argued  a  few  dajrs  since  before  my  Broth- 
ers Lush,  Hannen,  and  Hayes,  and  myself,  and  we  took  time,  not  to  consider 
what  our  judgment  should  be,  for  as  to  that  our  minds  were  made  up  at  the 
close  of  the  argument,  but  because,  owing  to  the  importance  and  novelty  of 
the  point  involved,  we  thought  it  desirable  that  our  judgment  should  be  re- 
duced to  writing  before  it  was  delivered. 

The  main  question  for  our  decision  is,  whether  a  faithful  report  in  a  public 
newspaper  of  a  debate  in  either  house  of  parliament,  containing  matter  dispar- 
aging to  the  character  of  an  individual,  as  having  been  spoken  in  the  course  of 
the  debate,  is  actionable  at  the  suit  of  the  party  whose  character  has  thus  been 
called  in  question.    We  are  of  opinion  that  it  is  not. 

Important  as  the  question  is,  it  comes  now  for  the  first  time  before  a  court 
of  law  for  decision.  Numerous  as  are  the  instances  in  which  the  conduct  and 
character  of  individuals  have  been  called  in  question  in  parliament  during  the 
many  years  that  parliamentary  debates  have  been  reported  in  the  public  jour- 
nals, this  is  the  first  instance  in  which  an  action  of  libel  founded  on  a  report 
of  a  parliamentary  debate  has  come  before  a  court  of  law.  There  is,  therefore, 
a  total  absence  of  direct  authority  to  guide  us.  There  are,  inde^,  dicta  of 
learned  judges  having  reference  to  the  point  in  question,  but  they  are  con- 
flicting and  inconclusive,  and,  having  been  unnecessary  to  the  decision  of  the 
cases  in  which  they  were  pronounced,  may  be  said  to  be  extrajudicial. 

The  cajse  of  StockdaJe  v,  Hansard,  9  Ad.  &  E.  1,  which  was  much  pressed 
upon  us  by  the  counsel  for  the  defendant,  is  .  .  .  beside  the  question.  In  that 
case  a  report  from  the  inspectors  of  prisons  relative  to  the  jail  of  Newgate,  in 
which  a  work  published  by  the  i^aintiff ,  a  bookseller,  and  which  had  been  per- 
mitted to  be  introduced  into  the  prison,  had  been  described  as  "  of  a  most  dis- 
gusting nature,"  and  as  containing,  "  plates  obscene  and  indecent  in  the  ex- 
treme," had  been  presented  to  the  House  in  conformity  with  the  Act  of  5  &  6 
Wm.  4,  c.  38.  In  another  report,  being  a  reply  to  a  report  of  the  court  of  alder- 
men on  the  same  subject,  the  inspectors  had  reiterated  their  charges  as  to  the 
character  of  the  book,  adding  that  it  had  been  described  by  medical  book- 
sellers, to  whom  they  (the  inspectors)  had  applied  for  information  as  to  its 
character,  as  "  one  of  Stockdale's  obscene  books."  These  papers  the  House 
had  ordered  to  be  printed,  not  only  for  the  use  pf  members,  but  also,  in  con- 
formity with  a  modem  practice,  for  public  sale,  the  proceeds  to  be  applied  to 
the  general  expenses  of  printing  by  the  House.   An  action  of  libel  having  been 

Co.,  155  la.  290;  Cowley  v.  Pulsifer,  137  Mass.  392;  Jones  v.  Pulitzer  Pub.  Co., 
240  Mo.  200;  Stanley  v.  Webb,  4  Sandf.  21;  Matthews  v.  Beach,  5  Sandf.  256; 
Cincinnati  Co.  v.  Timberlake,  10  Ohio  St.  548;  Mengel  v.  Reading  Eagle  Co.,  241 
Pa.  St.  367. 

The  report  of  ex  parte  proceedings  may  be  published  before  their  termination,  if 
of  such  a  character  that  there  will  be  a  final  decision.  Kimber  v.  Press  Association, 
[1893]  1  Q.  B.  65. 

1  Only  the  opinion  of  the  court  is  given. 


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CHAP.  VI.]  WASON  V.  WALKER  721 

brought  by  Stockdale  against  the  defendants,  the  printers  of  the  House  of 
Commons,  for  publishing  these  papers,  the  defence  as  raised  by  the  plea 
which  this  court  had  to  consider  was,  first,  that  the  papers  in  question  had 
been  published  by  order  of  the  House  of  Conunons;  secondly,  that  the  House 
having  resolved  (as  it  had  done  with  a  view  to  such  an  action)  that  the  power 
of  publishing  such  of  its  reports,  votes,  and  proceedings,  as  it  should  deem 
necessary,  was  an  essential  incident  to  the  functions  of  parliament,  the  ques- 
tion became  one  of  privilege,  as  to  which  the  decision  of  the  House  was  con- 
clusive, and  could  not  be  questioned  in  a  court  of  law. 

From  the  doctrines  involved  in  this  defence,  namely,  that  the  House  of 
Conunons  could  by  their  order  authorize  the  violation  of  private  rights,  and, 
by  declaring  the  power  thus  exercised  to  be  matter  of  privilege,  preclude  a 
court  of  law  from  inquiring  into  the  existence  of  the  privilege,  —  doctrines 
which  would  have  placed  the  rights  and  liberties  of  the  subject  at  the  mercy 
of  a  single  branch  of  the  Legislature, — Lord  Denman  and  his  colleagues,  in  a 
series  of  masterly  judgments  which  will  secure  to  the  judges  who  pronounced 
them  admiration  and  reverence  so  long  as  the  law  of  England  and  a  regard  for 
the  rights  and  liberties  of  the  subject  shall  endure,  vindicated  at  once  the 
majesty  of  the  law  and  the  rights  which  it  is  the  purpose  of  the  law  to  uphold. 

To  the  decision  of  this  court  in  that  memorable  case  we  give  our  imhesitat- 
ing  and  unqualified  adhesion.  But  the  decision  in  that  case  has  no  application 
to  the  present.  The  position,  that  an  order  of  the  House  of  Conmions  cannot 
render  lawful  that  which  is  contrary  to  law,  still  less  that  a  resolution  of  the 
House  can  supersede  the  jurisdiction  of  a  court  of  law  by  clothing  an  unwar- 
ranted exercise  of  power  with  the  garb  of  privilege,  can  have  no  application 
where  the  question  is,  not  whether  the  act  complained  of,  being  unlawful  at 
law,  is  rendered  lawful  by  the  order  of  the  House  or  protected  by  the  assertion 
of  its  privilege,  but  whether  it  is,  independently  of  such  order  or  assertion  of 
privilege,  in  itself  privileged  and  lawful. 

Decided  cases  thus  leaving  us  without  authority  on  which  to  proceed  in  the 
present  instance,  we  must  have^recourse  to  principle  in  order  to  arrive  at  a 
solution  of  the  question  before  us,  and  fortunately  we  have  not  far  to  seek  be- 
fore we  find  principles  in  our  opinion  applicable  to  the  case,  and  which  will 
afford  a  safe  and  sure  foundation  for  our  judgment. 

It  is  now  well  established  that  faithful  and  fair  reports  of  the  proceedings 
of  courts  of  justice,  though  the  character  of  individuals  may  incidentally  suf- 
fer, are  privileged,  and  that  for  the  publication  of  such  reports  the  publishers 
are  neither  criminally  nor  civilly  responsible. 

The  immunity  thus  afforded  in  respect  of  the  publication  of  the  proceedings 
of  courts  of  justice  rests  upon  a  twofold  ground.  In  the  English  law  of  libel, 
malice  is  said  to  be  the  gist  of  an  action  for  defamation.  And  though  it  is  true 
that  by  malice,  as  necessary  to  give  a  cause  of  action  in  respect  of  a  defamatory 
statement,  legal,  and  not  actual  malice,  is  meant,  while  by  legal  malice,  as  ex- 
plained by  Bayley,  J., in  Bromage  v,  Prosser,  is  meant  no  more  than  the  wrong- 
ful intention  which  the  law  always  presumes  as  accompanying  a  wrongful  act 
without  any  proof  of  malice  in  fact,  yet  the  presumption  of  law  may  be  re- 
butted by  the  circumstances  under  which  the  defamatory  matter  has  been 
uttered  or  published,  and,  if  this  should  be  the  case,  though  the  character  of 
the  party  concerned  may  have  suffered,  no  ri^t  of  action  will  arise.  "  The 
rule,"  says  Lord  Campbell,  C.  J.,  in  the  case  of  Taylor  v.  Hawkins,  16  Q.  B., 
at  p.  321,  "  is  that,  if  tiie  occasion  be  such  as  repels  the  presumption  of  malice, 


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722  WASON  V.  WALKEB  ICBIlP.  VI. 

the  communication  is  privileged,  and  the  plaintifif  must  then,  if  he  can,  give 
evidence  of  malice." 

It  is  thus  that  in  the  case  of  reports  of  prooeedings  of  courts  of  justice, 
thou^  individuals  may  occasionally  suffer  from  them,  yet,  as  they  are  pub- 
lished without  any  reference  to  the  individuals  concerned,  but  solely  to  afford 
information  to  the  pubUc  and  for  the  benefit  of  society,  the  presumption  of 
malice  is  rebutted,  and  such  publications  are  held  to  be  privileged. 

The  other  and  the  broader  principle  on  which  this  exception  to  the  general 
law  of  libel  is  founded  is,  that  the  advantage  to  the  conmiunity  from  publicity 
being  given  to  the  proceedings  of  courts  of  justice  is  so  great,  that  the  occa- 
sional inconvenience  to  individuals  arising  from  it  must  yield  to  the  general 
good.  It  is  true  that  with  a  view  to  distinguish  the  publication  of  proceedings 
in  parliament  from  that  of  proceedings  of  courts  of  justice,  it  hais  been  said 
that  the  immunity  accorded  to  the  reports  of  the  proceedings  of  courts  of  jus- 
tice is  grounded  on  the  fact  of  the  courts  being  open  to  the  public,  while  the 
houses  of  parliament  are  not;  as  also  that  by  the  publication  of  the  proceed- 
ing of  the  courts  the  people  obtain  a  knowledge  of  the  law  by  which  their 
dealings  and  conduct  are  to  be  regulated.  But  in  our  opinion  tiie  true  ground 
is  that  given  by  Lawrence,  J.,  in  Rex  v.  Wright,  8  T.  R.,  at  p.  298,  namely, 
that  **  though  the  publication  of  such  proceedings  may  be  to  the  disadvantage 
of  the  particular  individual  concerned,  yet  it  is  of  vast  importance  to  the  pub- 
lic that  the  proceedings  of  courts  of  justice  should  be  universally  known.  The 
general  advantage  to  the  country  in  having  these  proceedings  made  public, 
more  than  counterbalances  the  inconvenience  to  the  private  persons  ^ose 
conduct  may  be  the  subject  of  such  proceedings."  In  Davison  t^.  Duncan,  7 
E.  &  B.,  at  p.  231,  Lord  Campbell  says:  **  A  fair  account  of  what  takes  place 
in  a  court  of  justice  is  privileged.  The  reason  is,  that  the  balance  of  public 
benefit  from  publicity  is  great.  It  is  of  great  consequence  that  the  public 
should  know  what  takes  place  in  court;  and  the  proceedings  are  under  the 
control  of  the  judges.  The  inconvenience,  therefore,  arising  from  the  chance 
of  injury  to  private  character  is  infinitesimally  small  as  compared  to  the  con- 
venience of  publicity."  And  \^^ghtman,  J.,  says:  "  The  only  foundation  for 
the  exception  is  the  superior  benefit  of  the  publicity  of  judicial  proceedings 
which  counterbalances  the  injury  to  individuals,  though  that  at  times  may 
be  great." 

Both  the  principles,  on  which  the  exemption  from  legal  consequences  is  thus 
extended  to  the  publication  of  the  proceedings  of  courts  of  justice,  appear  to 
us  to  be  applicable  to  the  case  before  us.  The  presumption  of  malice  is  nega- 
tived in  the  one  case  as  in  the  other  by  the  fact  that  the  pubHcation  has  in 
view  the  instruction  and  advantage  of  the  public,  and  has  no  particular  refer- 
ence to  the  party  concerned.  There  is  also  in  the  one  case  as  in  the  other  a 
preponderance  of  general  good  over  partial  and  occasional  evil.  We  entirely 
concur  with  Lawrence,  J.,  in  Rex  v,  Wright,  8  T.  R.,  at  p.  298,  that  the  same 
reasons  which  apply  to  the  reports  of  the  proceedings  in  courts  of  justice  apply 
also  to  proceedings  in  parliament.  It  seems  to  us  impossible  to  doubt  that 
it  is  of  paramount  public  and  national  importance  that  the  proceedings  of  the 
houses  of  parliament  shall  be  communicated  to  the  public,  ^o  have  the 
deepest  interest  in  knowing  what  passes  within  their  walls,  seeing  that  on  what 
is  there  said  and  done,  the  welfare  of  the  conmiunity  depends.  Where  would 
be  our  confidence  in  the  government  of  the  country  or  in  the  Legislature  by 
which  our  laws  are  framed,  and  to  whose  charge  the  great  interests  of  the  coun- 


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CHAP.  VI.]  WASON  V.  WALKER  723 

try  are  committed,  —  where  would  be  our  attachment  to  the  constitution 
under  which  we  live,  —  if  the  proceedings  of  the  great  council  of  the  realm 
were  shrouded  in  secrecy  and  concealed  from  the  knowledge  of  the  nation  ? 
How  could  the  communications  between  the  representatives  of  the  people  and 
their  constituents,  which  are  so  essential  to  the  working  of  the  representative 
system,  be  usefully  carried  on,  if  the  constituencies  were  kept  in  ignorance  of 
what  their  representatives  are  doing  ?  What  would  become  of  the  right  of 
petitioning  on  all  measures  pending  in  parliament,  the  undoubted  right  of  the 
subject,  if  the  people  are  to  be  kept  in  ignorance  of  what  is  passing  in  either 
house  ?  Can  any  man  bring  himself  to  doubt  that  the  publicity  given  in  mod- 
em times  to  what  passes  in  parliament  is  essential  to  the  maintenance  of  the 
relations  subsisting  between  the  government,  the  Legislature,  and  the  country 
at  large  ?  It  may,  no  doubt,  be  said  that,  while  it  may  be  necessary  as  a  matter 
of  national  interest  that  the  proceedings  of  parliament  should  in  general  be 
made  pubUc,  yet  that  debates  in  which  the  character  of  individuals  is  brought 
into  question  ought  to  be  suppressed.  But  to  this,  in  addition  to  the  difficulty 
in  which  parties  publishing  parliamentary  reports  would  be  placed,  if  this 
distinction  were  to  be  enf orc«l  and  every  debate  had  to  be  critically  scanned 
to  see  whether  it  contained  defamatory  matter,  it  may  be  further  answered 
that  there  is  perhaps  no  subject  in  which  the  public  have  a  deeper  interest 
than  in  all  that  relates  to  the  conduct  of  public  servants  of  the  state,  —  no 
subject  of  parliamentary  discussion  which  more  requires  to  be  made  known 
than  an  inquiry  relating  to  it.  Of  this  no  better  illustration  could  possibly 
be  given  than  is  afforded  by  the  case  before  us.  A  distinguished  counsel, 
whose  qualification  for  the  judicial  bench  had  been  abundantly  tested  by  a 
long  career  of  forensic  eminence,  is  promoted  to  a  high  judicial  office,  and  the 
profession  and  the  public  are  satisfi^  that  m  a  most  important  post  the  serv- 
ices of  a  most  competent  and  valuable  pubUc  servant  have  been  secured. 
An  individual  comes  forward  and  calls  upon  the  House  of  Lords  to  take 
measures  for  removing  the  judge,  in  all  other  respects  so  well  qualified  for  his 
office,  by  reason  that  on  an  important  occasion  he  had  exhibited  so  total  a 
disregard  of  truth  as  to  render  him  unfit  to  fill  an  office  for  which  a  sense  of 
the  solenm  obligations  of  truth  and  honor  is  an  essential  qualification.  Can 
it  be  said  that  such  a  subject  is  not  one  in  which  the  public  has  a  deep  interest, 
and  as  to  which  it  ought  not  to  be  informed  of  what  passes  in  debate  ?  Lastly, 
what  greater  anomaly  or  more  flagrant  injustice  could  present  itself  than  that, 
while  from  a  sense  of  the  importance  of  giving  publicity  to  their  proceedings, 
the  houses  of  parliament  not  only  sanction  the  reporting  of  their  debates,  but 
also  take  measiu^  for  giving  facility  to  those  who  report  them,  while  every 
member  of  the  educated  portion  of  the  community  from  the  highest  to  the 
lowest  looks  with  eager  interest  to  the  debates  of  either  house,  and  considers 
it  a  part  of  the  duty  of  the  public  journals  to  furnish  an  account  of  what  passes 
there,  we  were  to  hold  that  a  party  publishing  a  parliamentary  debate  is  to  be 
held  liable  to  legal  proceedings  because  the  conduct  of  a  particular  individual 
may  happen  to  be  called  in  question  ? 

The  learned  counsel  for  the  plaintiff  scarcely  ventured  as  of  his  own  asser- 
tion to  deny  that  the  benefit  to  the  public  from  having  the  debates  in  parlia- 
ment published  was  as  great  as  that  which  arose  from  the  publishing  of  the 
proceedings  of  courts  of  justice,  but  he  relied  on  the  dicta  of  Littledale,  J., 
and  Patteson,  J.,  in  Stockdale  v,  Hansard,  9  Ad.  &  E.  1,  and  on  the  opinions  of 
certain  noble  and  learned  lords  in  th^  course  of  debates  in  the  House  of  Lords 


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724  WASON  V.  WALKER  [CHAP.  VI. 

on  bills  introduced  by  Lord  Campbell  for  the  purpose  of  amending  the  law  of 
libel.^  There  is  no  doubt  that  in  delivering  their  opinions  in  Stockdale  v,  Han- 
sard, the  two  learned  judges  referred  to  denied  the  necessity  and  in  effect  the 
public  advantage  of  the  proceedings  in  parliament  being  made  public.  The 
counsel  for  the  defendant  in  that  case  having  insisted,  as  a  reason  why  the 
power  to  order  papers  to  be  printed  and  published  should  be  considered  within 
the  privileges  of  the  House  of  Conmions,  on  the  advantage  which  resulted  from 
the  proceedings  of  parliament  being  made  known,  the  two  learned  judges,  not 
satisfied  with  demonstrating,  as  they  did,  by  conclusive  arguments,  that  the 
House  had  not  the  power  to  order  papers  of  a  libellous  character  and  forming 
no  part  of  the  proceedings  of  the  House  to  be  published,  still  less  to  conclude 
the  legality  of  such  a  proceeding  by  the  assertion  of  privilege,  thought  it  neces- 
sary to  follow  the  counsel  into  the  question  of  policy  and  convenience,  and  in 
90  doing  took  what  we  cannot  but  think  a  very  short-sighted  view  of  the  sub- 
ject. This  is  the  more  to  be  regretted,  as  their  observations  apply  not  only  to 
the  printing  of  papers  by  order  of  the  House,  the  only  question  before  them, 
but  also  to  the  publication  of  parliamentary  proceedings  in  general,  the  con- 
sideration of  which  was  not  before  them,  and  therefore  was  unnecessary.  Lord 
Denman,  in  his  admirable  judgment,  than  which  a  finer  never  was  delivered 
within  these  walls,  and  in  which  the  spirit  of  Holt  is  combined  with  the  lumi- 
nous reasoning  of  a  Mansfield,  while  overthrowing  by  irresistible  arguments 
the  positions  of  the  Attorney-General,  was  content  to  answer  the  argument  as 
to  the  policy  of  allowing  papers  to  be  published  by  order  of  either  of  the  houses 
of  parliament,  not  by  denying  the  policy  of  giving  power  to  the  House  to  order 
the  printing  and  publishing  of  papers,  but  by  saying  that  such  power  must  be 
provided  for  by  legislation.  On  the  subject  of  the  publication  of  parliamentary 
debates  he  said  nothing,  nor  was  he  called  upon  to  say  anything.  That  the 
Legislature  did  not  concur  with  the  two  judges  in  their  view  of  the  policy  is 
manifest  from  the  Act  of  3  Vict.  c.  9,  passed  in  consequence  of  the  decision  in 
Stockdale  v.  Hansard,  9  Ad.  &  E.  1,  the  preamble  of  which  statute  recites  that 
'^  it  is  essential  to  the  due  and  effectual  exercise  and  discharge  of  the  functions 
and  duties  of  parliament  and  to  the  promotion  of  wise  legislation  that  no  ob- 
structions or  impediments  should  exist  to  the  publication  of  such  of  the  re- 
ports, papers,  votes,  or  proceedings  of  either  house  of  parliament  as  such  house 
of  parliament  may  deem  fit  or  necessary  to  be  published."  After  which  the 
Act  proceeds  to  provide  for  the  prevention  of  actions  being  brought  in  respect 
of  papers  published  by  order  of  either  house  of  parliament. 

As  regards  the  attempt  of  Lord  Campbell  to  fix  the  legality  of  the  publica- 
tion of  parliamentary  debates  on  the  sure  foundation  of  statutory  enactment,* 
we  think  it  may  be  as  well  accounted  for  by  the  apprehension,  as  to  the  result 
of  any  proceeding  at  law  in  which  the  legality  of  such  publication  should  come 
in  question,  produced  in  his  mind  by  the  language  of  the  judges  in  Stockdale  v, 
Hansard,  as  by  any  conviction  of  the  defectiveness  of  the  law.  .  .  . 

We,  however,  are  glad  to  think  that,  on  closer  inquiry,  the  law  turns  out 
not  to  be  as  on  some  occasions  it  has  been  assumed  to  be.  To  us  it  seems  clear 
that  the  principles  on  which  the  publication  of  reports  of  the  proceedings  of 
courts  of  justice  have  been  held  to  be  privileged  apply  to  the  reports  of  par- 

^  In  1843,  see  Hansard's  Parliamentary  Debates,  3d  series,  vol.  Ixx.  pp.  1254-8; 
and  in  1858,  see  vol.  cxlix.  pp.  947-82.  —  Reporter's  Note. 

*  See  Hansard's  Parliamentary  Debates,  3d  series,  vol.  Ixx.  p.  1254;  and  vol. 
cxlix.  p.  947.  —  Reporter's  Note. 


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CHAP.  VI.]  WASON  V.  WALKER  725 

liamentary  proceedings.  The  analogy  between  the  two  cases  is  in  every  respect 
complete.  If  the  rule  has  never  been  applied  to  the  reports  of  parliamentary 
proceedings  till  now,  we  must  assume  that  it  is  only  because  the  occasion  has 
never  before  aiisen.  If  the  principles  which  are  the  foundation,  of  the  privi- 
lege in  the  one  case  are  applicable  to  the  other,  we  must  not  hesitate  to  apply 
them,  more  especially  when  by  so  doing  we  avoid  the  glaring  anomaly  and  in- 
justice to  which  we  have  before  adverted.  Whatever  disadvantages  attach  to  a 
system  of  unwritten  law,  and  of  these  we  are  fully  sensible,  it  has  at  least  this 
advantage,  that  its  elasticity  enables  those  who  administer  it  to  adapt  it  to 
the  varying  conditions  of  society,  and  to  the  requirements  and  habits  of  the 
age  in  which  we  live,  so  as  to  avoid  the  inconsistencies  and  injustice  which  arise 
when  the  law  is  no  longer  in  harmony  with  the  wants  and  usages  and  inter- 
ests of  the  generation  to  which  it  is  immediately  applied.  Our  law  of  libel  has, 
.  in  many  respects,  only  gradually  developed  itself  into  anything  like  a  satis- 
factory and  settled  form.  The  full  liberty  of  public  writers  to  comment  on  the 
conduct  and  motives  of  public  men  has  only  in  very  recent  times  been  recog- 
nized. Comments  on  government,  on  ministers  and  officers  of  state,  on  mem- 
bers of  both  houses  of  parliament,  on  judges  and  other  public  functionaries, 
are  now  made  every  day,  which  fialf  a  century  ago  would  have  been  the  subject 
of  actions  or  ex  officio  informations,  and  would  have  brought  down  fine  and  im- 
prisonment 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  in- 
flicted by  hostile  criticism,  the  nation  profits  by  public  opinion  being  thus 
freely  brought  to  bear  on  the  dischaige  of  public  duties  ?  Again,  the  recogni- 
tion of  the  right  to  publish  the  proceedings  of  courts  of  justice  has  been  of 
modem  growth.  Till  a  comparatively  recent  time  the  sanction  of  the  judges 
was  thought  necessary  even  for  the  publication  of  the  decisions  of  the  courts 
upon  points  of  law.  Even  in  quite  recent  days,  judges  in  holding  publication 
of  the  proceedings  of  courts  of  justice  lawful,  have  thought  it  necessary  to  dis- 
tinguish what  are  called  ez  parte  proceedings  as  a  probable  exception  from  the 
operation  of  the  rule.  Yet  ex  parte  proceedings  before  magistrates,  and  even 
before  this  court,  as,  for  instance,  on  applications  for  criminal  informations, 
are  published  every  day,  but  such  a  thing  as  an  action  or  indictment  founded 
on  a  report  of  such  an  ex  parte  proceeding  is  imheard  of,  and,  if  any  such  action 
or  indictment  should  be  brou^t,  it  would  probably  be  held  that  the  true  cri- 
terion of  the  privilege  is,  not  whether  the  report  was  or  was  not  ex  parte,  but 
whether  it  was  a  fair  and  honest  report  of  what  had  taken  place,  published 
simply  with  a  view  to  the  information  of  the  public,  and  innocent  of  all  in- 
tention to  do  injury  to  the  reputation  of  the  party  affected. 

It  is  to  be  observed  that  the  analogy  between  the  case  of  reports  of  proceed- 
ings of  courts  of  justice  and  those  of  proceedings  in  parUament  being  complete, 
all  the  limitations  placed  on  the  one  to  prevent  injustice  to  individuals  will 
necessarily  attach  on  the  other:  a  garbled  or  partial  report,  or  of  detached 
parts  of  proceedings,  published  with  intent  to  injure  individuals,  will  equally 
be  disentitled  to  protection.  Our  judgment  will  in  no  way  interfere  with  the 
decisions  that  the  publication  of  a  single  speech  for  the  purpose  or  with  the 
effect  of  injuring  an  individual  will  be  unlawful,  as  was  held  in  the  cases  of 
Rex  V.  Lord  Abingdon,  1  Esp.  226,  and  Rex  v.  Creevey,  1  M.  &  S.  273.  At  the 
same  time  it  may  be  as  well  to  observe  that  we  are  disposed  to  agree  with 
what  was  said  in  Davidson  v,  Dimcan,  7  £.  &  B.,  at  p.  233,  as  to  such  a  speech 


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726  WASON  V.  WALKER  [CHAP.  VI. 

being  privileged  if  bona  fide  published  by  a  member  for  the  information  of  his 
constituents.  But  whatever  would  deprive  a  report  of  the  proceedings  in  a 
court  of  justice  of  immunity  will  equally  apply  to  a  report  of  proceedings  in 
parliament. 

It  only  remains  to  advert  to  an  argument  urged  against  the  legality  of  the 
publication  of  parliamentary  proceedings,  namely,  that  such  publication  is 
illegal  as  being  in  contravention  of  the  standing  orders  of  both  houses  of  par- 
liament. The  fact,  no  doubt,  is,  that  each  house  of  parliament  does,  by  its 
standing  orders,  prohibit  the  publication  of  its  debates.  But,  practically,  each 
house  not  only  permits,  but  also  sanctions  and  encourages,  the  publication  of 
its  proceedings,  and  actually  gives  every  facility  to  those  who  report  thenu 
Individual  members  coireot  their  speeches  for  publication  in  Hansard  or  ihe 
public  journals,  and  in  every  debate  reports  of  former  speeches  contained 
therein  are  constantly  referred  to.  Collectively,  as  well  as  individually,  the 
members  of  both  houses  would  deplore  as  a  national  misfortune  the  withhold* 
ing  their  debates  from  the  country  at  large.  Practically  speaking,  therefore,  it 
is  idle  to  say  that  the  publicaticm  of  parliamentary  proceedings  is  prohibited 
by  parliament.  The  standing  orders  which  prohibit  it  are  obviously  main- 
tained only  to  give  to  each  house  the  control  over  the  publication  of  its  pro- 
ceedings, and  the  power  of  preventing  or  correcting  any  abuse  of  the  facility 
afforded.  Independently  of  the  orders  of  the  houses,  there  is  nothing  unlawful 
in  publishing  reports  of  parliamentary  proceedings.  Practically,  such  publi- 
cation is  sanctioned  by  parliament;  it  is  essential  to  the  working  of  our  par- 
liamentary system,  and  to  the  welfare  of  the  nation.  Any  argument  founded 
on  its  alleged  illegality  appears  to  us,  therefore,  entirely  to  fail.  Should  either 
house  of  parliament  ever  be  so  ill-advised  as  to  prevent  its  proceedings  from 
being  made  known  to  the  country  —  which  certainly  never  will  be  the  case  — 
any  publication  of  its  debates  made  in  contravention  of  its  orders  would  be  a 
matter  between  the  house  and  the  publisher.  For  the  present  purpose,  we 
must  treat  such  publication  as  in  every  respect  lawful,  and  hold  that,  while 
honestly  and  faithfully  carried  on,  those  who  publish  them  will  be  free  from 
legal  responsibility,  though  the  character  of  individuals  may  incidentally  be 
injuriously  affected. 

So  much  for  the  great  question  involved  in  this  case.  We  pass  on  to  ihe 
second  branch  of  this  rule,  which  has  reference  to  alleged  misdirection  in  re- 
spect of  the  second  count  of  the  declaration,  which  is  founded  on  the  article  in 
the  "  Times  "  conunenting  on  the  debate  in  the  House  of  Lords,  and  the  con- 
duct of  the  plaintiff  in  preferring  the  petition  which  gave  rise  to  it.  We  are 
of  opinion  that  the  direction  given  to  the  jury  was  perfectly  correct.  The  pub- 
lication of  the  debate  having  been  justifiable,  the  jury  were  properly  told  the 
subject  was,  for  the  reasons  we  have  already  adverted  to,  pre-eminently  one  of 
public  interest,  and  therefore  one  on  which  public  conunent  and  observation 
might  properly  be  made,  and  that  consequently  the  occasion  was  privileged  in 
the  absence  of  malice.  As  to  the  latter,  the  jury  were  told  that  they  must  be 
satisfied  that  the  article  was  an  honest  and  fair  comment  on  the  facts,  —  in 
other  words,  that,  in  the  first  place,  they  must  be  satisfied  that  the  comments 
had  been  made  with  an  honest  belief  in  their  justice,  but  that  this  was  not 
enough,  inasmuch  as  such  belief  might  originate  in  the  blindness  of  party  zeal, 
or  in  personal  or  political  aversion;  that  a  person  taking  upon  himself  pub- 
licly to  criticise  and  to  condemn  the  conduct  or  motives  of  another,  must  bring 
to  the  task,  not  only  an  honest  sense  of  justice,  but  also  a  reasonable  degree 


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CHAP.  VI.]  PURCELL  V.  SOWLER  727 

of  judgment  and  moderation,  so  that  the  result  may  be  what  a  jury  shall 
deem,  under  the  circumstances  of  the  case,  a  fair  and  legitimate  criticism  on 
the  conduct  and  motives  of  the  party  who  is  the  object  of  censure. 

Considering  the  direction  thus  given  to  have  been  perfectly  correct,  we  are 
of  opinion  that  in  respect  of  the  alleged  misdirection  as  also  on  the  former 
point,  the  ruling  at  rdsi  priua  was  right,  and  that  consequently  this  rule  must 
be  discharged.  Ride  discharged} 


EURCELL  V.  SOWLER 

In  the  Court  op  Appeal,  February  3, 1877. 

Reported  in  2  Common  Pkaa  Divieion  Reports,  215. 

Action  for  libel. 

The  libel  was  contained  in  a  report,  published  in  a  Manchester  newspaper, 
by  the  defendants,  the  proprietors,  of  the  proceedings  at  a  meeting  of  the 
board  of  guardians  for  the  Altrincham  poor-law  union,  at  which  ex  parte 
charges  were  made  against  the  plaintiff,  tike  medical  officer  of  the  union  work- 
house at  Knutsford,  of  neglect  in  not  attending  the  pauper  patients  when  sent 
for. 

At  the  trial  it  appeared  that  tiie  charges  were  unfounded  in  fact,  but  it  was 
admitted  that  the  report  was  accurate  and  bona  fide,  A  verdict  was  taken  by 
consent  for  the  plaintiff,  with  nominal  damages  and  costs,  judgment  to  be  en- 
tered accordingly,  with  leave  to  move  to  enter  judgment  for  the  defendants,  if 
the  court  shoiUd  be  of  opinion  that  the  publication  was  privfleged. 

The  Common  Pleas  Division  refused  the  motion,  oitlering  judgment  to 
stand  for  the  plaintiff.    1  C.  P.  D.  781. 

The  libel,  &c.,  are  set  out  at  length  in  the  report  in  the  court  below. 

The  defendants  appealed. 

Mellish,  L.  J.^  I  am  of  the  same  opinion.  We  are  asked  to  extend  the  law 
of  privilege  as  to  the  report  of  proceedings  of  a  public  body  to  an  extent  be- 
yond what  it  has  as  yet  been  carried.  In  Lord  Campbell's  time  it  was  supposed 
that  the  privilege  only  extended  to  the  proceedings  in  a  court  of  law.  A  report 
of  such  proceedings  has  always  been  held  privileged,  because  all  her  Majesty's 
subjects  have  a  right  to  be  present,  and  there  would,  therefore,  be  nothing 
wrong  in  putting  i£e  rest  of  the  public  in  the  position  of  those  who  were  actu- 
ally present.  The  privilege  has  been  extended  to  the  publication  of  debates  in 
parliEtment,  and  properly  extended,  as  they  stand  on  the  same  principle  as  the 
proceedings  in  courts  of  law.  There  is  no  doubt  this  distinction:  that  as  to 
courts  of  law  the  public  have  a  right  to  be  present,  but  they  are  only  admitted 
to  the  debates  in  either  House  of  Parliament  when  the  House  chooses  to  permit 
them  to  be  present.  The  House  has  a  discretion,  but  when  the  debates  are 
held  in  public,  it  is  clear  that  a  newspaper  ought  not  to  be  held  to  conmiit  an 
offence  by  putting  those  who  were  not  present  in  the  same  position  as  those 
who  were.   It  is  argued  that  this  privilege  ought  to  be  extended  as  to  a  variety 

»  Garby  v.  Bennett,  57  N.  Y.  Sup.  Ct.  853;  Buckstaff  v.  Hicks,  94  Wis.  34 
{sembU  —  report  of  proceedings  of  common  coimcil  of  a  city  not  privileged); 
DiUon  V.  BaJfour,  L.  K.  20  Ir.  600  Accord. 

The  publication  must  purport  to  be  a  report.    Lewis  v.  Hayes,  165  Cal.  527. 

*  The  concurring  opimons  of  Cockbum,  C.  J.,  and  BaggaOay  and  BramweU, 
JJ.  A.,  and  the  arguments  of  counsel  are  omitted. 


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728  PURCELL  V.  SOWLER  [CHAP.  VI. 

of  other  public  bodies.  I  express  no  decided  opinion,  and  I  desire,  with  the 
Lord  Chief  Justice,  to  be  understood  as  expressing  no  opinion;  but  at  the 
same  time  I  am  clearly  of  opinion  that  the  privilege  ought  not  to  be  extended 
to  such  a  ca^e  as  the  present.  A  board  of  guardians  have  a  discretion  whether 
or  not  they  will  admit  the  public  to  their  meetings;  and  whether  they  choose 
to  exclude  or  choose  to  admit,  the  pubUc  have  no  right  to  complain.  But  I 
cannot  think  that  the  courts  of  law  are  to  be  bound  by  the  mode  in  which  the 
guardians  exercise  their  discretion  in  admitting  or  excluding  strangers.  Al- 
though they  admit  the  public  on  an  occasion  when  ex  parte  charges  are  made 
against  a  public  officer,  which  may  affect  his  character  and  injure  his  private 
rights,  it  is  most  material  that  there  should  be  no  further  pubUcation;  there  is 
no  reason  why  the  charges  should  be  made  pubUc  before  the  person  changed 
has  been  told  of  the  charges,  and  has  had  an  opportunity  of  meeting  them;  and 
I  cannot  see  any  inconvenience  in  holding  that  the  publication  is  not  privi- 
leged ;  in  holding  otherwise  we  should  be  depriving  the  individual  of  his  rights 
without  any  commensurate  advantage.  The  law  on  the  subject  of  privilege  is 
clearly  defined  by  the  authorities.  Such  a  communication  as  the  present 
ought  to  be  confined  in  the  first  instance  to  those  whose  duty  it  is  to  investi- 
gate the  charges.  If  one  of  the  guardians  had  met  a  person  not  a  ratepayer  or 
parishioner,  and  had  told  him  the  charge  against  the  plaintiff,  surely  he  would 
have  been  liable  to  an  action  of  slander.  I  do  not  mean  to  say  that  the  matter 
was  not  of  such  public  interest  as  that  comments  would  not  be  privileged  if 
the  facts  had  been  ascertained.  If  the  neglect  charged  against  the  plaintiff  had 
been  proved,  then  fair  comments  on  his  conduct  might  have  been  justified. 
But  that  is  a  very  different  thing  from  publishing  ex  parte  statements,  which 
not  only  are  not  proved,  but  turn  out  to  be  unfounded  in  fact.  I  am,  there- 
fore, clearly  of  opinion  that  the  occasion  of  the  publication  was  not  privileged, 
and  that  the  judgment  for  the  plaintiff  ought  to  be  affirmed. 

Judgment  affirmed} 

1  See  Charlton  v.  Watton,  6  Car.  &  P.  385:  Davison  v,  Duncan,  7.  E.  &  B.  229, 
233;  Popham  v.  Pickbum,  7  H.  &  N.  891;  Davis  v.  Duncan,  L.  R.  9  C.  P.  396; 
Allbutt  V.  General  Council,  23  Q.  B.  D.  400.  411. 

By  St.  51  &  52  Vict.  c.  64,  §§  3  and  4.  "  §  3.  A  fair  and  accurate  report  in  any 
newspaper  of  proceedings  publicly  heard  before  any  court  exercising  judicial  au- 
thority shall,  if  published  contemporaneously  with  such  proceedings,  be  privileged: 
Provided  that  nothing  in  this  section  shall  authorize  the  publication  of  any  blas- 
phemous or  indecent  matter. 

"  §  4.  A  fair  and  acciu^te  report  published  in  any  newspaper  of  the  proceedings 
of  a  public  meeting,  or  (except  where  neither  the  public  nor  any  newspaper  reporter 
is  admitted)  of  any  meeting  of  a  vestry,  town  council,  school  board,  board  of  guard- 
ians, board  or  local  authority  formed  or  constituted  imder  the  provisions  of  any 
Act  of  Parliament,  or  of  any  committee  appointed  by  any  of  the  above-mentioned 
bodies,  or  of  any  meeting  of  any  commissioners  authorized  to  act  by  letters  patent, 
Act  of  Parliament,  warrant  under  the  Royal  Sign  Manual,  or  other  lawful  warrant 
or  authority,  select  committees  of  either  House  of  Parliament^  justices  of  the  peace 
in  quarter  sessions  assembled  for  administrative  or  deliberative  purposes,  and  the 
publication  at  the  request  of  any  Government  office  or  department,  officer  of  state, 
commissioner  of  police,  or  chief  constable  of  any  notice  or  report  issued  by  them  for 
the  information  of  the  public,  shall  be  privileged,  unless  it  shall  be  proved  that  such 
report  or  publication  waa  published  or  made  maliciously :  I^vided  that  nothing  in 
this  section  shall  authorize  the  publication  of  any  blasphemous  or  indecent  matter: 
Provided  also,  that  the  protection  intended  to  be  afforded  by  this  section  shall  not 
'  be  available  as  a  defence  in  any  proceedings  if  it  shall  be  proved  that  the  defendant 
has  been  requested  to  insert  in  the  newspaper  in  which  the  report  or  other  publica- 
tion complamed  of  appeared  a  reasonable  tetter  or  statement  by  way  of  contiadio- 


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CHAP.  VI.]  BARROWS  V.  BELL  729 

BARROWS  V.  BELL 

Supreme  Judichal  Court,  Massachusetts,  October,  1856. 

Reported  in  7  Gray,  301. 

Shaw,  C.  J.^  The  present  is  an  action  of  tort,  brought  to  recover  damage 
for  a  publication  alleged  to  be  a  libel  upon  the  plaintiff,  consisting  of  an  article 
published  in  the  Boston  Medical  and  Surgical  Journal,  under  the  direction  of 
the  defendant. 

The  article  alleged  to  be  libellous  is  headed,  "  The  suits  against  the  Massa- 
chusetts Medical  Society,"  and  it  proceeds  to  give  a  brief  account  of  the  pro- 
ceedings of  the  medical  society,  which  resulted  in  the  expulsion  of  the  plaintiff 
from  his  membership,  for  misconduct. 

Whatever  may  be  Uie  rule  as  adopted  and  practised  on  in  England,  we  think 
that  a  somewhat  larger  liberty  may  be  claimed  in  this  country  and  in  this 
Commonwealth,  both  for  the  proceedings  before  all  public  bodies,  and  for  the 
publication  of  those  proceedings  for  the  necessary  information  of  the  people. 
So  many  municipal,  parochial  and  other  public  corporations,  and  so  many 
large  voluntary  associations  formed  for  almost  every  lawful  purpose  of  benev- 
olence, business  or  interest,  are  constantly  holding  meetings,  in  their  nature 
pubUc,  and  so  usual  ia  it  that  their  proceedings  are  published  for  general  use 
and  information,  that  the  law,  to  adapt  itself  to  tiiis  necessary  condition  of 
society,  must  of  necessity  admit  of  these  public  proceedings,  and  a  just  and 
proper  publication  of  them,  as  far  as  it  can  be  done  consistently  with  private 
rights.  This  view  of  the  law  of  Ubel  in  Massachusetts  is  recognized,  and  to 
some  extent  sanctioned,  by  the  case  of  Conmionwealth  v.  Clapp,  4  Mass.  163, 
and  many  other  cases. 

The  Massachusetts  Medical  Society  were  not  a  private  association;  they 
were  a  public  corporation,  chartered  by  one  of  the  earliest  Acts  under  the  Con- 
stitution, which  was  amended  and  their  powers  confirmed  by  several  subse- 
quent Acts.    Ste.  1781,  c.  15;  1788,  c.  49;  1802,  c.  123;  1818,  c.  113. 

The  charter  invested  the  society,  their  members  and  licentiates,  with  large 
powers  and  privileges,  in  regulating  the  important  public  interest  of  the  prac- 
tice of  medicine  and  surgery,  enabled  them  to  prescribe  a  course  of  studies,  to 
examine  candidates  in  re^uti  to  their  qualifications  for  practice,  and  give 
letters  testimonial  to  those  who  might  be  found  duly  qualified.  They  were 
authorized  to  elect  fellows,  and  vested  with  power  to  suspend,  expel  or  dis- 

tion  or  explanation  of  such  report  or  other  publication,  and  has  refused  or  Defected 
to  insert  the  same:  Provided  further,  that  nothing  in  this  section  contained  snail  be 
deemed  or  construed  to  limit  or  abridge  any  privilege  now  by  law  existing,  or  to 
protect  the  publication  of  any  matter  not  of  public  concern  and  the  publication  of 
which  is  not  for  the  public  benefit. 

"  For  the  pvirposes  of  this  section  '  public  meeting '  shall  mean  any  meeting 
bona  fide  and  lamully  held  for  a  lawful  purpose,  and  for  the  furtherance  or  discus- 
sion of  any  matter  of  public  concern,  wnetner  the  admission  thereto  be  general  or 
restricted."    Kelly  v.  O'Malley,  6  T.  L.  R.  62,  was  decided  imder  this  statute. 

Newspaper  publicaUon  of  reports  of  administratwe  officers,  Tilles  v.  Pulitser 
Pub.  Co.,  241  Mo.  609:  Schwarz  v.  Evening  News  Co.,  84  N.  J.  Law.  486;  Bing- 
ham V.  Gaynor,  203  N.  Y.  27.  Contra,  Madill  v.  Currie,  168  Mich.  646.  See 
Morasca  v.  Item  Co.,  126  La.  426.  ^  ^ 

Report  qf  invesHaation  by  administrative  officers,   Williams  v.  Black,  24  S.  D.  501. 

^  The  case  has  been  much  abridged 


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730  BARBOWS  V.  BELL  CCHAP.  YI. 

franchise  any  fellow  or  member,  and  to  make  rules  and  by-laws  for  their  gov- 
ernment. No  person  could  be  a  member,  but  by  his  own  act  in  accepting  the 
appointment. 

This  society  was  regarded  by  these  legislative  Acts  as  a  public  institution, 
by  the  action  of  which  the  public  would  be  deeply  affected  in  one  of  its  impor- 
tant public  interests,  the  health  of  the  people.  The  plaintiff,  by  accepting  his 
appointment  as  a  fellow,  voluntarily  submitted  himself  to  the  government  and 
jurisdiction  of  the  society  in  his  professioAal  relations,  so  long  as  they  acted 
within  the  scope  of  their  authority. 

The  status  or  condition  of  being  a  member  of  this  society  was  one  of  a  per- 
manent character  and  recognized  by  law  —  one  in  which  each  member  has  a 
valuable  interest;  and  that  it  was  so  regarded  by  the  plaintiff  is  manifest 
from  his  effort  to  obtain  a  restoration  to  it  by  a  judgment  of  this  court,  by  a 
writ  of  mandamus. 

We  think  it  obvious  that  the  subject-matter  of  the  complaint  —  dishonor- 
able conduct,  a  fraudulent  transaction  between  the  plaintiff  and  another  mem- 
ber of  the  profession  and  of  the  same  society  —  was  within  the  scope  of  the 
authority  conferred  by  law  on  the  society;  and  that  the  direction  of  die  court, 
that  their  action  was  conclusive  upon  the  plaintiff,  was  correct.  As  to  the  legal 
proceedings  set  forth  in  the  supposed  libel,  it  was  admitted  by  the  plaintiff's 
counsel  that  ihe  account  there  given  of  those  proceedings  was  substantially 
true. 

If  then  this  charge  of  dishonorable  or  fraudulent  conduct  by  the  plaintiff, 
in  his  dealings  with  Dr.  Carpenter,  was  within  the  jurisdiction  of  the  medical 
society,  and  proceedings  were  instituted  and  carried  on  to  their  final  determi- 
nation in  the  expulsion  of  the  plaintiff  from  his  fellowship,  then  the  proceed- 
ings mig^t  be  rightly  characterized,  as  in  the  case  of  Famsworth  v,  Storrs,  as 
quasi  judicial;  and  then  the  only  remaining  question  of  fact  was,  whether  the 
publication  was  a  true  and  correct  narrative  of  such  proceedings  and  deter- 
mination. This  question  the  judge  did  leave,  or  proposed  to  leave,  to  the  jury; 
with  the  direction,  that  if  they  should  find  upon  the  evidence  that  that  part  of 
the  publication  was  true,  the  defendant  would  be  entitled  to  a  verdict.  We 
are  of  opinion  that  this  direction  was  right.  As  the  verdict  was  for  the  de- 
fendant, we  are  to  assume  that  it  was  found  by  them;  or,  if  the  verdict  was 
taken  by  consent,  it  would  have  been  found  under  the  instruction  that  the 
publication  did  present  a  true  and  correct  narrative  of  the  proceedings  before 
the  society,  and  their  determination  thereon. 

The  fact,  that  these  proceedings  were  considered  closed  and  finished,  takes 
away  from  this  publication  the  objection,  that  it  would  have  a  tendency  to 
prejudice  the  public  mind  and  prevent  the  party  affected  from  having  a  fair 
trial.  Judgment  on  the  verdict  for'lhe  defendant} 

»  Allbutt  V.  General  Council,  23  Q.  B.  D.  400  Accord.  But  see  Kimball  v.  Poet 
Pub.  Co.,  199  Mass.  248;  Peoples  Bank  v.  Goodwin,  148  Mo.  App.  364. 

Report  of  proceedings  of  a  church  comrmssion.  Bass  v.  Mathews,  69  Wash.  214. 


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CHAP.  VI.]  MILISSICH  V.  LLOYD's  731 

MILISSICH  V.  LLOYD'S 

In  the  Court  op  Appeal,  Pebruary  10, 1877. 
Reported  in  13  Cox^  Criminal  Cases,  575. 

Mbllish,  L.  J.^  In  this  case  the  defendants  have  appealed  from  a 
decision  of  the  Common  Pleas  Division,  ordering  a  new  trial  on  the 
ground  that  the  verdict  given  for  the  plaintiff  was  against  the  weight 
of  evidence.  They  are  not  satisfied  with  that  order,  but  they  come 
before  us  to  have  judgment  entered  for  themselves.  The  question  for 
us  is  an  important  one,  as  to  the  power  of  the  court  to  enter  judgment 
imder  the  Judicature  Acts.  Now,  although  the  Judicature  Acts  do 
imdoubtedly  give  very  general  powers  to  the  court  as  to  entering  of 
judgment,  it  is  clearly  not  intended  by  the  Legislature  that  the  court 
should  take  advantage  of  that  general  rule  to  remove  questions  from 
the  consideration  of  the  jury  which  are  questions  of  fact  properly  for 
their  consideration.  The  action  was  brought  by  the  plaintiff  against 
Lloyd's  for  an  alleged  libel  published  by  Lloyd's  in  a  pamphlet.  At 
the  trial,  no  doubt,  the  defence  of  privil^ed  communication  was 
raised  and  Lord  Coleridge  expressed  an  opinion  that  Lloyd's  would 
not  have  the  same  privil^e  as  an  ordinary  newspaper;  and  he  also  ex- 
pressed an  opinion  that,  inasmuch  as  only  the  speech  of  the  prosecut- 
ing counsel  and  the  summing  up  of  the  judge,  and  not  the  speech  of  the 
coimsel  for  the  defence,  at  the  cruninal  trial,  was  published,  the  report 
could  not  be  a  fair  one  of  the  trial.  I  cannot  agree  with  either  of  these 
doubts.  I  cannot  think  there  is  any  difference  between  the  privilege 
attaching  to  a  report  in  a  newspaper  or  in  a  pamphlet,  unless  some 
question  of  malice  is  raised.  Of  course,  if  actual  malice  is  allied,  the 
fact  that  the  libel  was  published  in  a  pamphlet  and  not  in  a  newspaper 
might  be  very  material,  but  when  no  such  allegation  is  made  I  cannot 
conceive  there  is  any  difference.  I  also  cannot  agree  that  the  mere 
fact  that  the  publisher  did  not  publish  the  evidence  in  full,  but  only 
the  summing  up  of  the  judge  and  the  speech  of  the  prosecuting  coun- 
sel, made  the  report  of  the  trial  an  imfair  one.  I  think  that  proposi- 
tion impUes  that  proceedings  at  trials  cannot  be  reported  at  all  unless 
they  are  reported  in  full.  It  must,  therefore,  be  sufficient  to  publish  a 
fair  abstract  of  the  evidence.  Now,  I  do  not  know  how  the  reporter 
could  do  better  than  take  the  judge's  summing  up  to  get  that  fair 
abstract,  although  I  do  not,  of  course,  lay  down  as  a  matter  of  law 
that  the  summing  up  of  a  judge  is  necessarily  a  correct  summary  for 
the  report.  I  think  this  report  may  be  fair  or  it  may  be  unfair;  but 
then,  is  it  a  question  of  fact  or  law  whether  the  report  is  fair  or  imfair  ? 
I  think  that  it  is  a  question  of  fact,  and  should  be  left  to  the  jury  to 
determine.  Then  the  argument  is  that  the  evidence  is  all  one  way 
and  that  it  is  useless  sending  the  case  down  to  a  new  trial  because  no 

'  Only  the  opinion  of  Mellish,  L.  J.,  is  given. 


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732  BARNES  V.  CAMPBEIX  [CHAP.  VI. 

jury  could  reasonably  find  the  other  way.  In  my  opinion,  the  court 
must  be  very  cautious  not  to  take  upon  itself  the  functions  of  a  jury. 
Notwithstanding  the  great  powers  given  by  the  Judicature  Acts,  it  is 
still,  of  course,  the  province  of  the  jury  to  determine  between  the 
credibility  of  witnesses  on  either  side.  Here,  however,  the  question  is 
more  what  is  the  inference  to  be  drawn  from  the  facts  proved  in  evi- 
dence. The  general  inference  to  be  drawn  from  all  the  facts,  as  in 
Lewis  V.  Levy,  E.  B.  &  E.  637,  is  for  the  jury.  There  the  whole  pro- 
ceedings before  the  magistrates  were  put  in  evidence,  in  order  to  judge 
of  the  fairness  of  the  report.  Here  a  full  shorthand  note  is  produced, 
and,  being  placed  in  the  hands  of  the  jury,  they  are  to  draw  the  infer- 
ence, and  not  the  court.  Now,  althou^  I  think  that  persons  mi^t 
draw  very  unfair  inferences  against  a  man  who,  like  the  plaintiff, 
did  not  appear  at  the  trial  himself  and  could  not  defend  himself  from 
the  charges  which  were  made  against  him  on  both  sides,  still,  if  the 
report  is  a  fair  one  of  what  took  place  the  defendants  will  be  privileged. 
The  question  for  the  jury  will  be  at  the  new  trial  —  was  the  report  a 
fan-  one,  and  would  it  give  a  fair  notion  to  people  who  were  not  there 
of  what  took  place  7  That  question  is  one  for  the  jury,  and  I  think 
the  case  should,  therefore,  be  sent  for  a  new  trial. 

Judgtneni  bdow  offirmed.^ 


BARNES  V.  CAMPBELL 

Supreme  Coubt,  New  HAMPsmitE,  June,  1879. 

Reported  in  59  New  Hampehire  Reports,  128. 

Case,  for  libel  in  accusing  the  plaintiff  of  crime.  Plea,  the  general 
issue,  with  a  brief  statement  alleging  that  the  defendants  are  con- 
ductors and  publishers  of  a  newspaper  published  at,  Ac,  and  as  such  it 
was  part  of  their  duty  to  give  to  their  readers  sudi  items  of  news  as 
they  might  properly  judge  to  be  of  interest  and  value  to  the  com- 
munity, and  that,  as  such  conductors  and  publishers,  they  published 
the  article  complained  of,  in  good  faith,  without  malice,  believing  and 
having  good  reason  to  believe  the  same  to  be  true. 

Motion  by  the  plaintiff  to  reject  the  brief  statement. 

Smith,  J.  Matter  in  justification  must  be  pleaded.  But  according 
to  some  decisions,  matter  in  excuse  may  be  given  in  evidence  imder  the 
general  issue,  or  be  pleaded.  State  v,  Burnham,  9  N.  H.  34,  43,  and 
authorities  cited;  Carpenter  v.  Bailey,  53  N.  H.  590.  In  this  view  of 
the  case,  it  is,  perhaps,  immaterial  whether  or  not  the  brief  statement 
is  defective.  But,  treating  the  brief  statement  and  the  motion  to  re- 
ject it  as  intended  to  raise  the  question  whether  the  brief  statement 

1  MacdoiM;aIl  v.  Knight,  14  App.  Cas.  194  (explaining  s.  c.  17  Q.  B.  Div.  636); 
Salisbury  v.  Union  Co.,  45  Hun,  120  Accord. 
See  Annaly  v.  Trade  CJo.,  L.  R.  26  Ir.  394. 


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CHAP.  VI.]  BAKNES  V.  CAMPBELL  733 

sets  forth  a  defence,  we  are  of  opinion  that  it  does  not.  The  defend- 
ants probably  intended  to  set  out  the  excuse  of  a  lawful  occasion,  good 
faith,  proper  purpose,  and  belief  and  probable  cause  to  believe  that  the 
publication  was  true.  They  laid  stress  upon  their  business  of  publish- 
ing a  newspaper.  But  professional  publishers  of  news  are  not  exempt, 
as  a  privilege  class,  from  the  consequences  of  damage  done  by  their 
false  news.  Their  commimications  are  not  privil^ed  merely  because 
made  in  a  public  journal.  They  have  the  same  right  to  give  informa- 
tion that  others  have,  and  no  more.  Smart  v.  Blanchard,  42  N.  H. 
137, 151;  Palmer  v.  Concord,  48  N.  H.  211,  216;  SheckeU  v.  Jackson, 
10  Cush.  25.  The  occasion  of  the  defendants'  publishing  a  false 
charge  of  crime  against  the  plaintiff  was  not  lawful,  if  the  end  to  be 
attained  was  not  to  give  useful  information  to  the  community  of  a  fact 
of  which  the  community  had  a  right  to  be  and  ought  to  be  informed,  in 
order  that  they  might  act  upon  such  information.  State  v.  Bumham, 
9  N.  H.  34, 41, 42;  Pahner  t;.  Ck)ncord,  48  N.  H.  211,  217;  Carpenter 
V.  Bailey,  53  N.  H.  590;  a.  c.  56  N.  H.  283.  The  defendants  do  not 
state  facts  that  would  constitute  a  lawful  occasion.  They  make  a 
loose  averment  of  their  general  duty  to  give  their  readers  such  news 
as  they  (the  defendants)  might  properly  judge  to  be  of  interest  and 
value  to  the  community.  This  idiould  be  struck  out  of  the  record  as 
insufficient  and  misleading.  It  is,  in  effect,  an  intimation  that  they 
published  the  libel  in  the  usual  course  of  their  business,  and  is  cal- 
culated to  give  the  jury  the  erroneous  impression  that  the  defendants' 
judgment  of  the  propriety  of  the  publication  is  evidence  of  the  law- 
fulness of  the  occasion.  The  defendants'  general  business  of  publish- 
mg  interesting  and  valuable  news  was  not,  of  itself,  a  lawful  occasion 
for  publishing  this  particular,  false,  and  criminal  charge  against  the 
plaintiff.  It  will  be  for  the  jury  to  say  what  weight  the  defendants' 
business  has  as  evidence  on  the  question  of  malice.  But  however  high 
the  defendants'  vocation,  and  however  interesting  and  valuable  the 
truth  which  they  undertake  to  give  their  readers,  their  ordinary  and 
habitual  caUing  is  no  excuse  for  assailing  the  plaintiff's  character 
with  this  false  charge  of  crime.  They  must  show  specific  facts  con- 
stituting a  lawful  occasion  in  this  particular  instance,  as  if  this  false 
charge  had  been  the  only  thing  they  ever  published.  They  allege 
nothing  of  that  kind.  They  do  not  state  that  the  community  had  any 
interest  which  would  have  been  protected  or  promoted  by  the  publi- 
cation complained  of  if  it  had  been  true,  or  had  a  right  to  be  or  ought 
to  be  informed  of  the  subject-matter  of  it  in  order  that  they  might  act 
upon  correct  information  of  it,  or  that  the  information  given  would 
have  been  practically  useful  to  anybody  if  it  had  been  true.  This  is 
the  substance  of  a  lawful  occasion.  The  brief  statement  contains  no 
specification  on  this  point.  Motion  granted } 

^  Parsons  v.  Age  Herald  Pub.  Co.,  181  Ala.  439;   Washington  Herald  Ck>.  v. 
Berry,  41  App.  D.  C.  322;  Lundin  v.  Post  Pub.  CJo.,  217  Mass.  213;  Schwarz  v. 


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734         LAWLESS  r.  angloegtphan  cotton  co.      [chap.  vi. 

LAWLESS  V.  THE  ANGLO-EGYFnAN  COTTON  CO. 

In  the  Queen's  Bench,  Februaky  11,  1869. 

Reported  in  Law  Reports,  4  Queen^s  Bench,  262. 

Libel.  The  declaration  charged  that  the  defendants  falsely  and 
maliciously  published  of  the  plainti£f,  their  manager,  in  a  certain  re- 
port of  the  aflfairs  of  the  company,  these  words:  "  The  shareholders 
will  observe  that  there  is  a  charge  of  £1,306  1«.  7d.  for  deficiency  of 
stock,  which  the  manager  is  responsible  for;  his  accoimts  as  such 
manager  in  the  company  have  been  badly  kept,  and  have  been  ren- 
dered to  us  very  irrc^arly.'' 

Plea:  Not  gi^ty.    Issue  thereon.* 

It  was  objected  on  behalf  of  the  defendants  that  there  was  no  evi- 
dence of  a  publication  of  the  Ubel,  and  that  it  was  a  privil^ed  com- 
munication. The  Chief  Baron  overruled  the  objections,  but  reserved 
leave  to  the  defendants  to  move  to  enter  a  nonsuit  on  both  points. 
The  plainti£f  having  proved  his  special  damage,  the  jury  found  a  ver- 
dict for  £500. 

A  rule  having  been  obtained  to  enter  a  nonsuit  pursuant  to  the  leave 
reserved, 

Holker,  Q.  C,  and  Gorst,  showed  cause. 

Manisty,  Q.  C.  {R.  C.  Fisher  with  him),  in  support  of  the  rule. 

Mellor,  J.  I  am  of  opinion  that  the  rule  should  be  made  absolute 
to  enter  a  nonsuit.  Had  I  been  able  to  perceive  that  any  substantial 
injustice  might  have  been  done  by  not  leaving  any  question  to  the 
jury,  I  should  have  been  disposed  to  send  the  case  down  for  a  new  trial. 
But  I  think  there  was  no  evidence  of  express  malice  which  ou^t  to 
have  been  left  to  the  jury. 

As  I  imderstand  the  facts  of  the  case,  the  plaintiff  was  employed  as 
the  agent  of  the  defendants  in  Egypt,  and  his  transactions  were  neces- 
sarily brought  under  the  notice  of  the  auditors,  who  are  appointed  by 

Evening  News  Co.,  84  N.  J.  Law,  486;  Williams  v.  Black,  24  S.  D.  501;  Williams 
Printing  Co.  v.  Saunders,  113  Va.  156  Accord. 

But  see  U.  S.  v.  Journal  Co.,  197  Fed.  415;  Tilles  v.  Pulitzer  Pub.  Co.,  241  Mo. 
609. 

"  Their  Lordships  regret  to  find  that  there  appeared  on  the  one  side  of  this  case 
the  time-worn  fallacy  that  some  kind  of  privilege  attaches  to  the  profession  of  the 
Press  as  distinguished  from  the  members  of  the  pubhc.  The  freedom  of  the  jour- 
nalist is  an  ormnary  part  of  the  freedom  of  the  subject,  and  to  whatever  lengths 
the  subject  in  general  may  go  so  also  may  the  journalist,  but,  apart  from  statute 
law,  his  privilege  is  no  other  and  no  higher.  The  responsibiUties  which  attach  to 
his  power  in  the  dissemination  of  printed  matter  may,  and  in  the  case  of  a  conscien- 
tious journalist  do,  make  him  more  careful;  but  the  range  of  lus  assertions,  his 
criticisms,  or  his  comments  is  as  wide  as,  and  no  wider  than,  that  of  any  other 
subject.  No  privilege  attaches  to  his  position."  Lord  Shaw  in  Arnold  v,  King- 
Emperor,  111  L.  T.  324,  325. 

^  The  statement  has  been  condensed,  the  facts  sufficiently  appearing  in  the 
opinion  of  Mellor,  J.  The  arguments  of  counsel  and  the  concumng  opmion  of 
Hannen,  J.,  are  omitted. 


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CHAP.  VI.]  LAWLESS  V.  ANGLCh-BGYVTlAN  COTTON  CO.  735 

Act  of  Parliament,  or  at  all  events  by  the  articles  of  association  of  the 
company,  and  who  are  fit  persons  to  investigate  the  accounts  of 
the  company.  The  auditors  considered  that  a  deficiency  in  the  stock 
of  the  company  was  owing  in  some  sense  to  the  plaintiff's  default,  and 
they  expressed  that  opinion  in  their  report.  It  seems  they  did  this 
after  having  received  such  explanations  as  Mr.  BeU  could  offer,  but  it 
must  be  observed  that  those  explanations  were  offered  to  the  auditors 
and  not  to  the  directors.  What  the  directors  did  was  this,  in  their 
report  to  a  meeting  of  the  shareholders  they  appended  the  statement 
which  had  been  made  to  them  by  the  auditors.  There  is  nothing  what- 
ever to  show  that  the  directors  had  any  reason  to  doubt  the  truth  of 
that  statement,  and  there  was  no  evidence  of  any  act  on  their  part 
from  which  maJice  could  be  inferred,  and  therefore  I  think  the  Chief 
Baron  was  right  in  not  putting  the  question  of  malice  to  the  jury.  As 
to  the  question  of  intrinsic  or  extrinsic  evidence,  the  report  was  one 
which  the  directors  were  fully  warranted  in  believing  was  correct;  and 
there  is  nothing  to  show  that  the  directors  acted  otherwise  than  bona 
fide  in  communicating  it  to  the  shareholders.  No  doubt  the  directors 
are  to  make  their  report  to  a  meeting  of  the  shareholders,  to  be  called 
for  that  purpose,  and  it  is  clear  that  those  who  are  absent  are  bound  by 
the  acts  of  those  who  are  present,  but  the  absent  shareholders  are 
interested  in  the  prosperity  or  adversity  of  the  company,  and  in  know- 
ing all  the  circumstances  upon  which  the  welfare  of  the  company 
depends.  Jt  seems  to  me,  therefore,  that  to  print  the  report  was  a 
necessary  and  reasonable  mode  of  conmiimicating  it  to  all  the  share- 
holders, who  must  be  more  or  less  numerous. 

This  case  does  not  fall  within  the  rule  in  CJooke  v.  Wildes,  5  E.  &  B. 
328;  24  L.  J.  Q.  B.  367.  There  the  question  of  malice  was  properly 
left  to  the  jury,  because  the  letter  contained  defamatory  expressions 
which  were  unnecessary;  the  defendant  was  not  content  with  stating 
the  facts  that  he  had  heard,  but  he  made  a  calumnious  observation  of 
his  own  and  put  a  gloss  on  the  plaintiff's  conduct  which  was  libellous. 
There  was  therefore  intrinsic  evidence  of  malice,  and  that  the  defend- 
ant had  not  acted  bona  fide,  and  these  questions  were  properly  left  to 
the  jury.  I  think  we  are  bound  by  the  cases  of  Somerville  v,  Hawkins 
and  Taylor  v.  Hawkms,  16  Q.  B.  308;  20  L.  J.  Q.  B.  313.  The  prin- 
ciple there  laid  down  is,  that  where  there  is  no  evidence  of  malice 
the  judge  ought  not  to  leave  any  question  to  the  jury.  Here  I  think 
the  conduct  of  the  directors  negatives  malice  on  their  part,  and  it  is 
clear  that  they  acted  bona  fide.  I  think  we  should  be  going  against 
what  I  may  call  progress,  if  we  were  to  hold  that  the  deUvery  of  the 
manuscript  of  the  report  to  the  printer,  for  the  purpose  of  having  it 
printed,  is  a  publication  which  prevents  the  conununication  from 
being  privileged.  I  also  think  that  it  was  the  duty  of  the  directors  to 
conmiunicate  the  report  not  only  to  the  shareholders  present  at  the 
meeting,  but  to  all  the  shareholders,  and  that  they  had  an  interest  in 


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736  PADMORE  V.  LAWRENCE  [CHAP.  VI. 

receiving  it.  I  am  glad  that  Mr.  Holker  called  our  attention  to  the 
American  authority,  for  it  supports  the  judgment  of  the  court.  In 
Philadelphia,  Wihnington,  and  Baltimore  Railroad  Company  v,  Quig- 
ley,  21  Howard  (Rep.  Sup.  Court,  U.  S.),  202,  it  was  held  that  it  was 
within  the  course  of  business  and  employment  of  the  president  and 
directors  for  them  to  investigate  the  conduct  of  their  officers  and 
agents,  and  to  report  the  result  to  the  stockholders.  It  was  also  held, 
in  the  absence  of  malice  and  bad  faith,  that  the  report  to  the  share- 
holders was  privileged;  therefore,  to  this  extent,  that  case  appears  to 
me  to  be  an  express  authority.  But,  independently  of  any  authority,  I 
am  quite  prepared  to  hold  that  a  company,  having  a  great  nimiber  of 
shareholders  all  interested  in  knowing  how  their  officers  conduct 
themselves,  are  justified  in  making  a  cconmunication  in  a  printed  re- 
port, relating  to  the  conduct  of  their  officers,  to  all  the  shareholders, 
whether  present  or  absent,  if  the  communication  be  made  without 
malice  and  bona  fide.  The  communication  in  this  case  is  prima  facie 
privil^ed,  and  there  being  no  evidence  intrinsic  or  extrinsic  of  malice, 
that  question  was  very  properly  not  left  to  the  jury.  I  think  the  con- 
clusion at  which  the  Chief  Baron  arrived  at  nisi  prius  without  hearing 
any  argument  erroneous,  and  with  great  deference  to  that  eminent  and 
learned  judge,  I  am  of  opinion  this  rule  to  enter  a  nonsuit  should  be 
made  al^lute.  Bvie  absohUe.^ 


PADMORE  V.  LAWRENCE 

In  the  Queen's  Bench,  January  18, 1840. 

Reported  in  11  Adolpkue  A  EUm,  380. 

Case  for  slander.  The  words  charged  to  have  been  spoken  by  the  defend- 
ant imputed  that  the  plaintiff  had  stolen  a  brooch  belonging  to  the  defendant's 
wife;  and  they  were  said  to  have  been  uttered  in  a  discourse,  Ac,  and  in  the 
hearing  of  one  Jane  Cole  and  divers,  Ac. 

Pleas.  1.  Not  guilty.  2.  A  traverse  of  part  of  the  inducement  not  mate- 
rial here. 

On  the  trial  before  Parke,  B.,  at  the  Hampshire  summer  assizes,  1838,  it 
appeared  that  the  plaintiff  had  called  at  the  defendant's  house,  and  that  soon 
afterwards  the  brooch  was  missed;  that  defendant  then  went  to  an  inn,  where 

1  Barbaud  v,  Hookham,  5  Esp.  109;  McDougall  v,  Claridge,  1  Camp.  267;  Dun- 
man  V.  Bi^,  1  Camp,  260  n.;  Todd  v.  Hawkins,  2  M.  d;  R.  20,  8  Csx.  ^P.  88; 
Shipley  v.Todhunter,  7  Car.  A  P.  680:  Harris  v.  Thompson,  13  C.  B.  333  ^ait- 
land  V.  Bramwell,  2  F.  A  F.  623;  ScarU  v.  Dixon,  4  F.  A  F.  250;  Cooke  v,  Wildes, 
6  E.  A  B.  328;  Croft  v.  Stevens,  7  H.  A  N.  670;  Whiteley  t;.  Adams,  16  C.  B.  n.  s. 
392;  Spill  v,  Maule,  L.  R.  4  Ex.  232:  Laughton  v.  Bishop.  L.  R.  4  P.  C.  496; 
Davies  v.  Snead,  L.  R.  5  Q.  B.  608;  Waller  v.  Loch,  7  Q.  B.  D.  619:  Cowles  t^. 
Potts,  34  L.  J.  Q.  B.  247:  Quartz  Co.  v,  Beall,  20  Ch.  Div.  601;  Royal  Aquarium 
r.  Parkinson,  [1892]  1  Q.  B.  431;  Pittard  v.  Oliver,  (1891)  1  Q.  B.  474;  Phila.  Co.  v, 

8uigley,  21  How.  202;  Broughton  v,  McGrew^9  Fed.  672;  Haight  v.  Cornell,  15 
onn.74;  Etchison  ».  Pergerson,  88  Ga.  620;  Wharton  t>.  Wright,  30  Bl.  App.  343; 
Coombs  V,  Rose,  8  Blackf .  166;  Kirkpatrick  v.  Eagle  Lodge,  26  Kan.  384;  Lynch 
V,  Febiger,  39  La.  Ann.  336;  Remington  v.  Congdon,  2  Pick.  310;  Bradley  v. 


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CHAP.  VI.]  PADMORE  V.  LAWRENCE  737 

the  plaintiff  was,  and  stated  to  her  his  suspicions,  in  the  presence  of  a  third 
person;  and  that  the  plaintiff,  with  her  own  concurrence,  was  afterwards 
searched  by  Jane  Cole  and  another  female,  who  were  called  in  for  the  purpose 
and  to  whom  the  defendant  at  the  time  repeated  the  charge.  The  brooch  was 
not  found  on  the  plaintiff,  but  was  afterwards  discovered  to  have  been  left  b^r 
the  defendant's  wife  at  another  place.  The  defendant's  counsel  first  applied 
for  a  nonsuit,  which  the  learned  judge  refused.  The  defendant's  counsel  then, 
in  his  address  to  the  jury,  contended  that  the  words  were  spoken  without 
malice,  under  circumstances  which  privileged  them.  The  learned  judge  told 
the  jury  that  the  verdict  must  be  for  the  plaintiff,  if  they  thought  that  the 
words  imputed  felony,  for  that  it  was  clear  they  were  not  privileged.  Verdict 
for  the  plaintiffs 

In  Michaelmas  term,  1838,  Erie  obtained  a  rule  for  a  new  trial,  on  the 
ground  of  misdirection. 

Crowder  and  Butt  now  showed  cause. 

Erie  and  Barstow,  contra.^ 

Heath,  12  Pick.  163;  Famsworth  v,  Storrs,  5  Cush.  412;  York  v.  Pease,  2  Gray, 
282;  Gassett  v.  Gilbert,  6  Gray,  94;  Shurtleff  t;.  Parker,  130  Mass.  293  (semble); 
Howland  v.  Mood,  160  Mass.  509;  Landis  v.  Campbell,  79  Mo.  433;  Rothholz  v. 
Dunkle,  53  N.  J.  Law,  438;  Jarvis  v.  Hatheway,  3  Johns,  180;  O'Donaghue  v. 
McGovem,  23  Wend.  26;  Streety  v.  Wood,  15  Barb.  105;  Fowles  v,  Bowen,  30 
N.  Y.  20;  Kilinck  v.  Colby,  46  N.  Y.  427;  McKnight  v.  Hasbrouck,  17  R.  I.  70; 
Tillmghast  v.  McLeod,  17  R.  I.  208;  Holt  v.  Parsons,  23  Tex.  9;  Shurtleff  v. 
Stevens.  51  Vt.  501  (semble)  Accord, 

See  also  Dickeson  v.  Hilluu^,  L.  R.  9  Ex.  79;  Lyman  v.  Gowing,  L.  R.  6  L>.  259 
(where  the  communication  was  made  to  unsuitable  persons) ;  PhilBps  v.  Bradshaw, 
181  Ala.  541;  Bohlinger  v.  Germania  Ins.  Co.,  100  Ark.  477. 

Ccrnimunication  by  promoter  of  an  enterprise  to  one  whose  assistance  is  sought. 
Cook  V,  Gust,  155  Wis.  594. 

Communication  from  superintendent  of  railroad  to  express  company  as  to  em- 
ployee who  serves  both.  International  R.  Co.  v.  Edmundson,  (Tex.  Civ.  App.)  185 
S.  W.  402. 

Communication  by  insurance  adjuster  to  insurers.  Richardson  v.  Cooke,  129  La. 
365. 

Indorsement  of  officer  on  recommendation  for  promotion.  Gray  v.  Mossman,  88 
Conn.  247. 

Communication  between  stockholders  as  to  manager  of  a  corporation.  Ashcroft  v. 
Hammond,  197  N.  Y.  488. 

Communication  by  person  immediately  interested  made  honestly  to  protect  his  own 
interest  Delany  v.  Jones,  4  Esp.  190  (but  see  Lay  v.  Lawson,  4  A.  &E.  798) ;  Fair- 
man  V.  Ives,  5  B.  A  A.  642;  Coward  v.  Wellington,  7  Car.  &  P.  531;  Tuson  v. 
Evans,  12  A.  A  E.  733  (semble);  Blackham  v.  Pugh,  2  C.  B.  611;  Wenman  v.  Ash, 
13  C.  B.  836  (sembUf  communication  to  unsuitable  person) ;  Manby  v.  Witt,  18 
C.  B.  544;  Taylor  v.  Hawkins,  16  Q.  B.  308:  Amann  v.  Danmi,  8  C.  B.  n.  s.  597; 
Force  v.  Warren,  15  C.  B.  n.  s.  806;  Oddy  v.  Paulet,  4  F.  A  F.  1009  (semble) ;  Cooke 
V.  Wildes,  5  E.  A  B.  328;  Re^na  v.  Peny,  15  Cox  C.  C.  169;  Bank  v.  Strong,  1 
App.  Cas.  307;  Hunt  v.  Great  Northern  Co.,  [1891]  2  Q.  B.  189:  Baker  v.  Camck, 
[1894]  1  Q.  B.  838;  Hobbe  v.  Bryers,  L.  R.  2  Ir.  496;  Lang  v.  Gilbert,  4  All.  (N.  B.) 
445:  Gadey  v.  Moss,  9  -^a.  266;  Butterworth  v.  (Jonrow,  1  Marv.  361;  Henry  v, 
Moberly,  23  Ind.  App.  305;  Nichols  v,  Eaton,  110  la.  509;  Caldwell ».  Story,  107 
Ky.  10;  Baysett  v.  Hire,  49  La.  Ann.  904;  Dickinson  t?.  Hathaway,  122  La.  Ann. 
644;  Beeler  v.  Jackson,  64  Md.  589;  Brow  v.  Hathaway,  13  All.  239;  Bacon  v. 
Mich.  Co.,  66  Mich.  166;  Howard  v.  Dickie,  120  Mich.  238;  Alabama  Ck).  v. 
Brooks,  69  Miss.  168;  Lovell  Co.  v.  Houghton,  116  N.  Y.  520;  Lent  v.  Underhillj 
54  App.  Div.  609;  Reynolds  v.  Plumbers^  Ass'n,  30  Misc.  709;  Behee  v.  Missouri 
R.  Co.,  71  Tex.  424;  MiBsouri  R.  Co.  v.  Richmond,  73  Tex.  568;  Missouri  Co.  v. 
Behee,  2  Tex  dv.  App.  107;  Miller  v.  Armstrong,  24  N.  Zeal.  968. 

^  Tne  arguments  of  counsel  are  omitted. 


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738  CHILD  V.  AFFLECK  [CHAP.  VI. 

Lord  Denman,  C.  J.  The  question  ought  to  have  gone  to  the  jury,  whether 
this  charge  was  niade  bona  fide,  •  Unless  Toogood  v,  Spyring  is  to  be  overruled, 
it  is  clear  that  the  judge  was  not  warranted  in  withdrawing  that  question  from 
their  consideration. 

LiTTLEDALE,  J.   The  jury  were  to  say  whether  the  defendant  believed  that 

the  brooch  was  stolen  by  the  plaintiff,  and  for  that  reason  charged  her  with 

having  stolen  it,  and  whether  his  language  was  stronger  than  necessary,  or 

*  whether  the  charge  was  made  before  more  persons  than  was  necessary.    The 

law  has  been  laid  down  so  over  and  over  again. 

Coleridge,  J.  For  the  sake  of  pubUc  justice,  charges  and  communications, 
which  would  otherwise  be  slanderous,  are  protected  if  bona  fide  nutde  in  the 
prosecution  of  an  inquiry  into  a  suspected  crime.  Then  had  not  the  defendant 
a  right  to  make  out  ^at  case  ?  The  facts  were  for  the  jury.  It  is  argued  that 
the  charge  ought  to  be  true,  or  ought  to  be  made  only  before  an  officer  of 
justice.  But  the  exigencies  of  society  could  never  permit  such  a  restriction. 
If  I  stop  a  party  suspected,  must  not  I  say  why  I  do  so?  Supposing  it  unjusti- 
fiable to  search  a  person  against  his  will,  here  tjie  plaintiff  agreed  to  be 
searched.  The  presence  of  other  parties  would  not  do  away  with  the  privil^e. 
When  the  two  females  were  desired  to  make  the  search,  were  they  not  to  be 
told  for  what  they  were  to  look  ?    The  question  was  clearly  for  the  jury. 

Rule  absolute} 


CHILD  V.  AFFLECK 

In  the  Kino's  Bench,  Mat  13, 1829. 

Reported  in  9  BameioaU  &  Creeewelly  403. 

Case  for  a  libel.  Plea,  the  general  issue.  At  the  trial  before  Lord 
Tenterden,  C.  J.,  at  the  Westminster  sittings  after  Hilary  term,  it 
appeared  in  evidence  that  the  plaintiff  had  been  in  the  service  of  the 
defendants,  Mrs.  Affleck  having  before  she  hired  her  made  inquiries  of 
two  persons,  who  gave  her  a  good  character.  The  plaintiff  remained 
in  that  service  a  few  months,  and  was  afterwards  hired  by  another  per- 
son, who  wrote  to  Mrs.  Affleck  for  her  character,  and  received  the  fol- 
lowing answer,  which  was  the  allied  libel:  "  Mrs.  A.'s  compliments 
to  Mrs.  S.,  and  is  sorry  that  in  reply  to  her  inquiries  respecting  E. 
Child,  nothing  can  be  in  justice  said  in  her  favor.   She  lived  with  Mrs. 

>  Johnson  v.  Evans,  3  Esp.  32;  lowler  v.  Homer,  3  Camp.  294;  Jones  v. 
Thomas,  34  W.  R.  104;  Lightbody  v,  Gordon,.9  Scotch  Sees.  Cas.  (4th  series)  934; 
Dale  V.  Harris,  109  Mass.  193  Accord. 

See  to  the  same  effect  Flanagan  v.  McLane,  87  Conn.  220;  Wall  v.  Seaboard  Ry., 
18  Ga.  App.  457;  Cristman  v.  Cristman,  36  111.  App.  567;  Harper  r.  Harper,  10 
Bush,  447;  Hyatt  v.  Lindner,  133  La.  614;  Bavington  v.  Robinson,  127  Md.  46, 
124  Md.  85;  Eames  v,  Whittaker,  123  Mass.  342;  Wells  v.  Toogood,  165  Mich. 
677:  Lally  v.  Emery,  59  Hun,  237;  Hayden  v.  Hasbrouck,  34  R.  I.  656:  Viss  v. 
Calligan,  91  Wash.  673.  Compare  Hansen  v.  Hansen,  126  Minn.  426;  Hooper  r. 
Truscott,  2  B.  N.  C.  457;  Harrison  t».  Fraser,  29  W.  K.  652. 

But  see  Peak  v,  Taubman,  251  Mo.  390;  Vanloon  v,  Vanloon,  159  Mo.  App.  255; 
Hagener  v,  Pulitzer  Pub.  Co.,  172  Mo.  App.  436. 

Relevant  statement  in  course  of  disjmte  as  to  property,  Alderson  v,  Kahle,  73 
W.Va.  TOO.  *-    /-  1^ 


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CHAP.  VI.]  CHILD  V.  AFFLECK  739 

A.  but  for  a  few  weeks,  in  which  short  time  she  frequently  conducted 
herself  disgracefully;  and  Mrs.  A.  is  concerned  to  add  she  has,  since 
her  dismissal,  been  credibly  informed  she  has  been  and  now  is  a  pros- 
titute in  Bury."  In  consequence  of  this  letter  the  plaintiff  was  dis- 
missed from  her  situation.  It  further  appeared  that  after  that  letter 
was  written,  Mrs.  Affleck  went  to  the  persons  who  had  recommended 
the  plaintiff  to  her,  and  made  a  similar  statement  to  them.  Upon  this 
evidence  it  was  contended,  for  the  defendants,  that.there  wisis  no  proof 
of  maUce,  and  that  consequently  the  plaintiff  must  be  nonsuited.  On 
the  other  hand,  it  was  urged  that  Mrs.  Affleck's  statement  of  what  the 
plaintiff's  conduct  had  been  after  she  left  her  service  was  not  privi- 
leged, and  that,  at  all  events,  that  part  of  the  letter  and  the  state- 
ment that  she  voluntarily  made  to  other  persons,  and  not  in  answer  to 
any  inquiries,  were  evidence  of  malice.  Lord  Tenterden,  C.  J.,  was  of 
opinion  that  the  latter  part  of  the  letter  was  privileged,  and  that  the 
other  communications  being  made  to  persons  who  had  recommended 
the  plaintiff,  were  not  evidence  of  malice,  and  he  directed  a  nonsuit. 
F.  Kelly  now  moved  for  a  rule  nisi  for  a  new  trial.* 
Parke,  J.  The  rule  laid  down  by  Lord  Mansfield,  in  Edmondson  v. 
Stevenson,  Bull.  N.  P.  8,  has  been  followed  ever  since.  It  is,  that  in  an 
action  for  defamation  in  giving  a  character  of  a  servant,  "  the  gist  of 
it  must  be  malice,  which  is  not  implied  from  the  occasion  of  speaking, 
but  should  be  directly  proved."  The  question  then  is,  whether  the 
plaintiff  in  this  case  adduced  evidence,  which,  if  laid  before  a  jury, 
could  properly  lead  them  to  find  express  malice.  That  does  not  appear 
upon  the  face  of  the  letter.  Prima  facie  it  is  fair,  and  imdoubtedly  a 
person  asked  as  to  the  character  of  a  servant  may  communicate  all 
that  is  stated  in  that  letter.  Independently  of  the  letter,  there  was  no 
evidence  except  of  the  two  persons  that  had  recommended  the  plain- 
tiff. The  communication  to  them,  therefore,  was  not  officious,  and 
Mrs.  Affleck  was  justified  in  making  it.  In  Rogers  v,  Clifton,  3  B.  &  P. 
687,  evidence  of  the  good  conduct  of  the  servant  was  given,  and  the 
communication  also  appeared  to  be  offlcious.  In  Blackburn  v.  Black- 
bum,  4  Bing.  395,  the  occasion  of  writing  the  allied  Ubel  did  not 
distinctly  appear,  it  was  therefore  properly  left  to  the  jury  to  say, 
whether  it  was  confidential  and  privileged  or  not,  and  they  found  that 
it  was  not.  Here  the  letter  was  undoubtedly  prima  fade  privil^ed, 
the  plaintiff,  therefore,  was  bound  to  prove  express  malice  in  order  to 
take  away  the  privilege.  Rvh  refused? 

^  The  argument  for  the  plaintiff  and  the  opinions  of  Lord  Tenterden,  C.  J., 
Bayley,  ana  Littledale,  JJ.,  are  omitted. 

*  Servant  cases.  Edmondson  t>.  Stevenson,  Bull.  N.  P.  8;  Weatherston  v.  Haw- 
kins, 1  T.  R.  110:  Rogers  t;.  Clifton,  3  B.  A  P.  687;  Pattison  t;.  Jones,  8  B.  &  C. 
578;  Gardner  v.  Slade,  13  Q.  B.  796;  Murdoch  v.  Funduklian,  2  T.  L.  R.  614  (re- 
versing 8.  c.  2  T.  L.  R.  215);  Doane  v.  Grew,  220  Mass.  171;  Carroll  t;.  Owen,  178 
Mich.  551  Accord. 

Commercial  agency  cases.  Lemay  v.  Chamberlain,  10  Ont.  638 ;  Todd  v.  Dun,  1 2 
Ont  791;  Erber  v.  Dun,  12  Fed.  526;  Johnson  v.  Bradstreet  Co.,  77  Ga.  172;  Pol- 


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740  '  COXHEAD  v.  RICHARDS  [CHAP.  VI, 

COXHEAD  i;.  RICHARDS 

In  the  Common  Pleas,  January  31, 1846. 

Reported  in  2  Common  Bench  BeporU,  569. 

TiNDAL,  C.  J.*  This  was  an  action  upon  the  case  for  the  publication 
of  a  false  and  malicious  libel,  in  the  fonn  of  a  letter  written  by  one 
John  Cass,  the  first  mate  of  a  ship  called  The  England,  to  the  defend- 
ant; the  letter  stating  that  the  plaintiff,  who  was  the  captain  of  the 
ship,  and  then  in  command  of  her,  had  been  in  a  state  of  constant 
drunkenness  during  part  of  the  voyage,  whereby  the  ship  and  crew 
had  been  exposed  to  continual  danger:  and  the  pubUcation  by  the 
defendant  was,  the  communication  by  him  of  this  letter  to  the  owner 
of  the  ship,  by  reason  whereof  —  which  was  the  special  damage  alleged 
in  the  declaration  —  the  plaintiff  was  dismissed  from  the  ship,  and 
lost  his  employment. 

The  defendant  pleaded  —  first,  not  guiHy;  secondly,  that  the 
charges  made  by  the  mate  against  the  plaintiff  in  his  letter  were  true; 

laaky  t;.  Minchener,  81  Mich.  2S0;  Mitchell  v.  Bradstreet  Co.,  116  Mo.  226;  King 
V,  Patterson,  49  N.  J.  Law,  417;  Taylor  v.  Church,  8  N.  Y.  452;  Sunderlin  i^. 
Bradstreet,  46  N.  Y.  188;  Bradstreet  Co.  v.  GilL  72  Texas,  115  Accord, 

Macintosh  v.  Dun,  [1908]  A.  C.  390  Contra,  AUter  in  case  of  credit  assodatiim 
not  for  profit.  London  Ass'n  for  Protection  of  Trade  v.  Greenlands,  [1916]  2  A.  C. 
16. 

But  information  giyen  to  persons  having  no  interest  in  the  mercantile  standing 
of  the  plaintiff  —  for  example^  reports  sent  by  a  commercial  agency  to  its  sub- 
scribers generally  —  is  not  pnvileged.  Erber  v.  Dim,  12  Fed.  526;  Trussell  r. 
Scarlett,  18  Fed.  214  (criticising  Beardsley  v.  Tappan,  5  Blatchford,  497) :  Locke 
V.  Bradstreet  Co.,  22  Fed.  771:  Pacific  Packing  Co.  v.  Bradstreet,  25  Idaho,  696; 
Pollasky  v,  Minchener,  81  Mich.  280;  Ormsby  t^.  Douglass,  37  N.  Y.  477;  State  v. 
Lonsdale.  48  Wis.  348. 

For  other  cases  of  communications  privileged  because  made  in  answer  to  proper 
inquiries,  see  Cockayne  t;.  Hodgkisson,  5  Car.  &  P.  543;  Storey  v.  Challands,  8  Car. 
&  P.  234;  Kline  v.  Sewell,  3  M.  &  W.  297;  Hopwood  v.  Thorn,  8  C.  B.  293;  Rob- 
shaw  V.  Smith,  38  L.  T.  Rep.  423;  Weldon  v,  Winslow,  Odgers,  Lib.  &  SI.  (5th  ed.) 
255:  Melcher  v,  Beeler,  48  Col.  233;  Zuckerman  v,  Sonnenschein,  62  SI.  115: 
Richardson  v.  Gunby,  88  Kan.  47;  Atwill  v.  Mackintosh,  120  Mass.  177;  Howland 
t;.  Blake  Co.,  156  Mass.  543;  Froslee  v.  Lund's  State  Bank,  131  Minn.  435;  Fahr 
V.  Hayes,  50  N.  J.  Law,  275;  Posnett  t;.  Marble,  62  Vt.  481;  Rude  v.  Nass,  79  Wis. 
321. 

Advice  by  attorney  to  client  as  to  person  with  whom  dierU  has  business.  Kruse  v. 
Rabe,  80  N.  J.  Law,  378. 

Fiduciary  relations.  Communications  made  in  the  line  of  a  business  dubr,  for 
example,  by  an  agent  or  employee  to  his  principal  or  employer  are  privil^^. 
Wright  V,  Woodmte,  2  C.  M.  A  R.  573;  Scarll  v.  Dixon,  4  F.  &  F.  250;  Stace  v. 
Griffith,  L.  R.  2  P.  C.  420;  Hume  v.  Marshall,  42  J.  P.  136;  Washburn  v,  Cooke, 
3  Den.  110;  Lewis  v.  Chapman,  16  N.  Y.  369. 

Family  relations,  A  bona  fide  commimication  by  a  brother  to  his  sister  reflecting 
on  the  character  of  her  suitor  is  privileged.  Anon.,  2  Smith,  4,  cited;  Adams  v. 
Coleridge,  1  T.  L.  R.  4.  So  is  a  similar  communication  by  a  son-in-law  to  his 
mother-m-law.    Todd  v,  Hawkins,  2  M.  &  Rob.  20,  8  C.  A  P.  88. 

Inquiry  as  to  character  of  candidate  for  admission  to  a  society.  Cadle  v.  McLi- 
tosh,  51  Ind.  App.  365. 

1  Only  this  opmion  and  the  dissenting  opinion  of  Creswell,  J.,  are  |dven.  Erie, 
J.,  concurred  with  the  Lord  Chief  Justice;  Coltman,  J.,  a^eed  with  Cresswell,  J. 


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CHAP.  VI.]  COXHEAD  V.  RICHARDS  .741 

and,  lastly,  that  the  shipowner  did  not  dismiss  the  captain  by  reason, 
and  in  consequence,  of  the  communication  of  the  letter  to  him. 

Upon  the  last  two  issues  a  verdict  was  found  for  the  plaintiff;  but, 
upon  the  first  issue,  for  the  defendant. 

I  told  the  juiy  at  the  trial,  that  the  occasion  and  circumstances  un- 
der which  the  communication  of  this  letter  took  place,  were  such,  as, 
in  my  opinion,  to  furnish  a  legal  excuse  for  maldng  the  communica- 
tion; and  that  the  inference  of  malice,  —  which  the  law  prima  fade 
draws  from  the  bare  act  of  publishing  any  statements  false  in  fact, 
containing  matter  to  the  reproach  and  prejudice  of  another,  —  was 
thereby  rebutted ;  and  that  the  plaintifiF,  to  entitle  himself  to  a  verdict, 
must  show  maUce  in  fact:  concluding  by  telling  them  that  they  should 
find  their  verdict  for  the  defendant,  if  they  thought  the  communica- 
tion was  strictly  honest  on  his  part,  and  made  solely  in  the  execution 
of  what  he  believed  to  be  a  duty;  but,  for  the  plaintiff,  if  they  thought 
the  communication  was  made  from  any  indirect  motive  whatever,  or 
from  any  malice  against  the  plaintiff.  And  the  only  question  now  be- 
fore us,  is,  whether,  upon  the  evidence  given  at  the  trial,  such  direction 
was  right. 

There  was  no  evidence  whatever  that  the  defendant  was  actuated  by 
any  sinister  motive  in  communicating  the  letter  to  Mr.  Ward,  the 
shipowner:  on  the  contrary,  all  the  evidence  went  to  prove  that  what 
he  did  he  did  imder  the  full  belief  that  he  was  performing  a  duty,  how- 
ever mistaken  he  might  be  as  to  the  existence  of  such  duty,  or  in  his 
mode  of  performing  it.  The  writer  of  the  letter  was  no  stranger  to 
the  defendant:  on  the  contrary,  both  were  proved  to  have  been  on 
terms  of  friendship  with  each  other  for  some  years;  and,  from  the 
tenor  of  the  letter  itself,  it  must  be  inferred  the  def endiant  was  a  person 
upon  whose  judgment  tiie  writer  of  the  letter  placed  great  reliance,  the 
letter  itself  being  written  for  the  professed  purpose  of  obtaining  his 
advice  how  to  act,  imder  a  very  pressing  difficulty.  The  letter  was 
framed  in  very  artful  terms,  such  as  were  calculated  to  induce  the  most 
wary  and  prudent  man  (knowing  the  writer)  to  place  reliance  on  the 
truth  of  its  details:  and  there  can  be  no  doubt  but  that  the  defendant 
did  in  fact  thoroughly  believe  the  contents  to  be  true,  amongst  other 
things,  that  the  ship,  of  which  Mr.  Ward  was  the  owner,  and  the  crew 
and  cargo  on  board  tlie  same,  had  been  exposed  to  very  imminent  risk, 
by  the  continued  intoxication  of  the  captain  on  the  voyage  from  the 
French  coast  to  Llanelly,  where  the  ship  then  was,  and  that  the  voyage 
to  the  Eastern  Seas,  for  which  the  ship  was  chartered,  would  be  con- 
tinually exposed  to  the  same  hazard,  if  the  vessel  diould  continue 
under  his  command.  In  this  state  of  facts,  after  the  letter  had  been  a 
few  days  in  his  hands,  the  defendant  considered  it  to  be  his  duty  to 
communicate  its  contents  to  Mr.  Ward,  whose  interests  were  so  nearly 
concerned  in  the  information;  not  communicating  it  to  the  pubUc,  but 
to  Mr.  Ward;  and  not  accompanying  such  disclosure  with  any  direc- 


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742  COXHEAD  V.  RICHARDS  [CHAP.  VI. 

tions  or  advice,  but  merely  putting  him  in  possession  of  the  facts  stated 
in  the  letter,  that  he  might  be  in  a  condition  to  investigate  the  truth, 
and  take  such  steps  as  prudence  and  justice  to  the  parties  concerned 
required:  in  maldng  which  disclosure  he  did  not  act  hastily  or  unad- 
visedly, but  consulted  two  persons  well  qualified  to  give  good  advice 
on  such  an  emergency  —  tie  one,  an  Elder  Brother  of  the  Trinity 
House  —  the  other,  one  of  the  most  eminent  ship-owners  in  London: 
in  conformity  with  whose  advice  he  gave  up  the  letter  to  the  owner  of 
the  ship.  At  the  same  time,  if  the  defendant  took  a  coiu*se  which  was 
not  justifiable  in  point  of  law,  although  it  proceeded  from  an  error  in 
jud^ent  only,  not  of  intention,  still  it  is  undoubtedly  he,  and  not  the 
plaintiflF,  who  must  suffer  for  such  error. 

The  only  question  is,  whether  the  case  does  or  does  not  fall  within 
the  principle,  well  recognized  and  established  in  the  law,  relating  to 
privileged  or  confidential  communications;  and,  in  determining  this 
question,  two  points  may,  as  I  conceive,  be  considered  as  settled  — 
first,  that  if  the  defendant  had  had  any  personal  interest  in  the  subject- 
matter  to  which  the  letter  related,  as,  if  he  had  been  a  part-owner  of 
the  ship,  or  an  underwriter  on  the  ship,  or  had  had  any  property  on 
board,  the  commimication  of  such  a  letter  to  Mr.  Ward  would  have 
fallen  clearly  within  the  rule  relating  to  excusable  publications  —  and, 
secondly,  that  if  the  danger  disclosed  by  the  letter,  either  to  the  ship 
or  the  cargo,  or  the  ship's  company,  had  been  so  immediate  as  that  the 
disclosure  to  the  shipowner  was  necessary  to  avert  such  danger,  then, 
upon  the  ground  of  social  duty,  by  whidi  every  man  is  bound  to  his 
neighbor,  the  defendant  would  have  been  not  only  justified  in  making 
the  disclosure,  but  would  have  been  hound  to  make  it.  A  man  who 
received  a  letter  informing  him  that  his  neighbor's  house  would  be 
plundered  or  burnt  on  the  night  following  by  A.  and  B.,  and  which  he 
himself  believed,  and  had  reason  to  believe,  to  be  true,  would  be  justi- 
fied in  showing  that  letter  to  the  owner  of  the  house,  though  it  should 
turn  out  to  be  a  false  accusation  of  A.  and  B.  The  question  before  us 
appears,  therefore,  to  be  narrowed  to  the  consideration  of  the  facts 
which  bear  upon  these  two  particular  qualifications  and  restrictions  of 
the  general  principle. 

As  to  the  first,  I  do  not  find  the  rule  of  law  is  so  narrowed  and 
restricted  by  any  authority,  that  a  person  having  information  mate- 
rially affecting  the  interests  of  another,  and  honestly  communicating 
it,  in  the  full  belief,  and  with  reasonable  grounds  for  the  belief,  that  it 
is  true,  will  not  be  excused,  though  he  has  no  personal  interest  in  the 
subject-matter.  Such  a  restriction  would  surely  operate  as  a  great 
restramt  upon  the  performance  of  the  various  social  duties  by  which 
men  are  bound  to  each  other,  and  by  which  society  is  kept  up.  In 
Pattison  v.  Jones,  8  B.  &  C.  578,  the  defendant,  who  had  discharged 
the  plaintiff  from  his  service,  wrote  a  letter  to  the  person  who  was 
about  to  engage  him,  unsolicited;  he  was  therefore  a  volunteer  in  the 


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CHAP.  VI.]  COXHJEAD  V.  RICHARDS  743 

matter;  and  might  be  coDsidered  as  a  stranger,  having  no  interest  in 
the  business;  but,  neither  at  the  trial,  nor  on  the  motion  before  the 
court,  was  it  suggested  that  the  letter  was,  on  that  accoimt,  an  un- 
privileged communication;  but  it  was  left  to  the  jury  to  say  whether 
the  communication  was  honest  or  mahcious.  Again,  in  Child  v. 
Affleck  and  Wife,  the  statement,  by  the  former  mistress,  of  the  conduct 
of  her  servant,  not  only  during  her  service,  but  after  she  had  left  it, 
was  held  to  be  privileged..  The  rule  appears  to  have  been  correctly 
laid  down  by  the  Comt  of  Ilxchequer,  tiiat,  "  if  fairly  warranted  by 
any  reasonable  occasion  or  exigency,  and  honestly  made,  such  com- 
mimications  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."  1  CM.  &  R.  181.  In  the  present  case,  the  de- 
fendant stood  in  a  different  situation  frcon  any  other  person;  he 
was  the  only  person  in  the  world  who  had  received  the  letter,  or  was 
acquainted  with  the  information  contained  in  it.  He  cannot,  there- 
fore,  properly  be  treated  as  a  complete  stranger  to  the  subject-matter 
of  inquiry,  even  if  the  rule  excluded  strangers  from  the  privilege. 

Upon  the  second  ground  of  qualification  —  was  the  danger  suffi- 
ciently imminent  to  justify  the  communication  —  it  is  true,  that  the 
letter,  which  came  to  the  defendant's  hands  about  the  14th  of  Decem- 
ber, contains  within  it  the  information  that  the  ship  cannot  get  out  of 
harbor  before  the  end  of  the  month.  It  was  urged  that  the  defendant, 
instead  of  communicating  the  letter  to  the  owner,  might  have  insti- 
tuted some  inquiry  himself.  But  it  is  to  be  observed  that  every  day 
the  ship  remained  under  the  command  of  such  a  person  as  the  plaintiff 
was  described  to  be,  the  ship  and  crew  continued  exposed  to  hazard, 
though  not  so  great  hazard  as  when  at  sea;  not  to  mention  the  inmie- 
diate  injury  to  the  shipowner  which  must  necessarily  follow  from 
want  of  discipline  of  the  crew,  and  the  bad  example  of  such  a  master. 
And,  after  all,  it  would  be  too  much  to  say,  that,  even  if  the  thing  had  ] 
been  practicable,  any  duty  was  cast  upon  the  defendant,  to  lay  out  his 
time  or  money  in  the  investigation  of  the  charge. 

Upon  the  consideration  of  the  case,  I  think  it  was  the  duty  of  the 
defendant  not  to  keep  the  knowledge  he  gained  by  this  letter  himself, 
and  thereby  make  himself  responsible,  in  conscience,  if  his  neglect  of 
the  warnings  of  the  letter  brought  destruction  upon  the  ship  or  crew  — 
that  a  prudent  and  reasonable  man  would  have  done  the  same;  that 
the  disclosure  was  made,  not  publicly,  biit  privately  to  the  owner,  that 
is,  to  the  person  who  of  all  the  world  was  the  best  qualified,  both  from 
his  interest  in  the  subject-matter,  and  his  knowledge  of  his  own  officers, 
to  form  the  most  just  conclusion  as  to  its  truth,  and  to  adopt  the  most  < 
proper  and  effective  measures  to  avert  the  danger;  after  which  dis-| 
closure,  not  the  defendant,  but  the  owner,  became  liable  to  the  plain-/ 
tiff,  if  the  owner  took  steps  which  were  not  justifiable;  as,  by  unjustlyj 
dismissing  him  from  his  employment,  if  the  letter  was  untrue.    Andjj 


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744  COXHEAD  V.  BICHABBS  [CHAP.  VI. 

as  all  this  was  done  with  entire  honesty  of  purpose,  and  in  the  full  be- 
lief of  the  truth  of  the  information,  —  and  that,  a  reasonable  belief, 
—  I  am  still  of  the  same  opinion  which  I  entertained  at  the  trial,  that 
this  case  ranges  itself  within  the  pale  of  privil^ed  commimication, 
and  that  the  action  is  not  maintainable. 

I  therefore  think  the  rule  for  setting  aside  the  verdict  and  for  a  new 
trial,  should  be  discharged. 

Creswell,  J.    I  cannot,  without  much  regret,  express  an  opinion 
in  this  case  at  variance  with  that  which  is  entertained  by  my  lord  and 
one  of  my  learned  brothers.    But,  having  given  full  consideration  to 
the  arguments  urged  at  the  bar,  and  the  cases  cited,  and  not  being  able 
to  shake  oflf  the  impression  which  they  made  in  favor  of  the  plaintiflF,  I 
am  bound  to  act  upon  the  opinion  that  I  have  formed.    I  will  not  re- 
peat the  facts  of  the  case,  which  have  been  already  stated,  but  proceed 
shortly  to  explain  the  groimds  upon  which  my  opinion  rests, 
r  There  is  no  doubt  that  the  letter  published  by  the  defendant  of  the 
^laintiflF  was  defamatory;  and  the  truth  of  its  contents  could  not  be 
/proved.    The  plaintiff  was,  therefore,  entitled  to  maintain  an  action 
/  against  the  publisher  of  that  letter,  unless  the  occasion  on  which  it  was 
/  published  niade  the  publication  of  such  letter  a  lawful  act,  as  far  as  the 
I     plaintiff  was  concerned,  if  done  in  good  faith,  and  without  actual 
\    malice.    To  sustain  an  action  for  a  libel  or  slander,  the  plaintiff  must 
\  show  that  it  was  malicious;  but  every  unauthorized  publication  of 
Vdefamatory  matter  is,  in  point  of  law,  to  be  considered  as  malicious. 
The  law,  however,  on  a  principle  of  policy  and  convenience,  authorizes 
many  communications,  although  they  affect  th^  characters  of  in- 
dividuals; and  I  take  it  to  be  a  question  of  law,  whether  the  com- 
munication is  authorized  or  not.    If  it  be  authorized,  the  legal  pre- 
sumption of  malice  arising  from  the  unauthorized  publication  of 
defamatory  matter,  fails,  and  the  plaintiff,  to  sustain  his  action,  must 
prove  actual  malice,  or,  as  it  is  usually  expressed,  malice  in  fact.    In 
the  present  case,  the  existence  of  malice  in  fact  was  negatived  by  the 
jury;  and  if  my  lord  was  right  in  teUing  them,  that,  in  the  absence  of 
malice  in  fact,  the  publication  of  the  letter  was  privil^ed,  this  rule 
should  be  dischai^ed.     It  therefore  becomes  necessary  to  inquire 
within  what  limits  and  boundaries  the  law  authorizes  the  publication 
of  defamatory  matter.    Perhaps  the  best  description  of  tiioee  limits 
and  boundaries  that  can  be  given  in  few  words,  is  to  be  found  in  the 
judgment  of  Parke,  B.,  in  Toogood  v.  Spjrring:  "  The  law  considers 
such  publication  as  malicious,  unless  it  is  fairly  made  by  a  person  in  the 
discharge  of  some  public  or  private  duty,  whether  l^al  or  moral,  or 
in  the  conduct  of  his  own  affairs  in  matters  where  his  interest  is  con- 
cerned."  It  was  not  contended  in  this  case  that  any  legal  duty  bound 
the  defendant  to  commimicate  to  the  shipowner  the  contents  of  the 
letter  he  had  received,  nor  was  the  communication  made  in  the  con- 
duct of  his  own  affairs,  nor  was  his  interest  concerned:  the  authority 


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CHAP.  VI.]  COXHEAD  V.  RICHARDS  745 

for  the  publication,  if  any,  must  therefore  be  derived  from  some  moral 
duty,  pubUc  or  private,  which  it  was  incimibent  upon  him  to  discharge. 
I  think  it  impossible  to  say  that  the  defendant  was  called  upon  by  any 
public  duly  to  make  the  communication;  neither  his  own  situation 
nor  that  of  any*  of  the  parties  concerned,  nor  the  interests  at  stake 
were  such  as  to  aflfect  the  pubUc  weal.  Was  there  then  any  private 
duty  ?  There  was  no  relation  of  principal  and  agent  between  the  ship- 
owner and  the  defendant,  nor  was  any  (rust  or  confidence  reposed  by 
the  former  in  the  latter;  there  was  no  relationship  or  intimacy  be- 
tween them;  no  inquiries  had  been  made;  they  were,  until  the  time 
in  question,  (Grangers:  the  duty,  if  it  existed  at  all  as  between  them, 
must,  therefore,  have  arisen  from  the  mere  circumstance  of  their  being 
fellow-subjects  of  the  realm.  But  the  same  relation  existed  between 
the  defendant  and  the  plaintiff.  If  the  property  of  the  shipowner  on 
the  one  hand  was  at  stake,  the  character  of  the  captain  was  at  stake 
on  the  other;  and  I  cannot  but  think  that  the  moral  duty  not  to  pub- 
lish of  the  latter  defamatory  matter  which  he  did  not  know  to  be  true, 
was  quite  as  strong  as  the  duty  to  communicate  to  the  shipowner  that 
which  he  believed  to  be  true.  Was,  then,  the  defendant  bound  by  any 
moral  duty  towards  the  writer  of  the  letter,  to  make  the  communica- 
tion ?  Surely  not.  If  the  captain  had  misconducted  himself,  the 
mate  was  capable  of  observing  it,  and  was  as  capable  of  communicat- 
ing it  to  the  owner  as  to  the  defendant.  The  crew  were,  in  like  manner, 
capable  of  observing  and  acting  for  themselves.  The  mate  (if  he  really 
believed  that  which  he  wrote  to  be  true)  might,  indeed,  be  under  a 
moral  duty  to  communicate  it  to  his  owner:  but  the  defendant  had  no 
right  to  take  that  vicarious  duty  upon  himself:  he  was  not  requested 
by  the  mate  to  do  so,  but  was,  on  the  contrary,  enjoined  not  to  make 
the  communication. 

I  will  not  attempt  to  comment  upon  the  very  numerous  cases  that 
were  quoted  at  the  bar  on  the  one  side  and  on  the  other,  but  will  advert 
to  one  or  two  which  tend  to  explain  the  term  "  moral  duty,"  and  see 
whether  it  has  ever  been  held  to  authorize  the  publication  of  defama- 
tory matter  imder  circumstances  similar  to  those  which  exist  in  the 
present  case.  In  Bromage  v.  Prosser,  Bayley,  J.,  in  his  very  elaborate 
judgment,  speaks  of  slander  as  "  prima  facte  excusable  on  account  of 
the  cause  of  speaking  or  writing  it,  in  the  case  of  servants'  characters, 
confidential  advice,  or  communications  to  those  who  ask  it  or  have  a 
right  to  expect  it."  With  regard  to  the  characters  of  servants  and 
agents,  it  is  so  manifestly  for  the  advantage  of  society  that  those  who 
are  about  to  employ  them  should  be  enabled  to  learn  what  their  previ- 
ous conduct  has  been,  that  it  may  be  well  deemed  the  moral  duty  of 
former  employers  to  answer  inquiries  to  the  best  of  their  belief.  But, 
according  to  the  opinion  of  the  same  learned  judge,  intimated  in 
Pattison  v.  Jones,  8  B.  &  C.  578,  it  is  necessary  that  inquiry  should  be 
made,  in  order  to  render  lawful  the  communication  of  defamatory 


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746  COXHEAD  V.  RICHARDS  [CHAP.  VI. 

matter,  although  he  was  also  of  opinion  that  such  inquiry  may  be 
invited  by  the  former  master.  And  in  Rogers  v.  Clifton,  Chambre,  J., 
quoted  a  similar  opinion  of  Lord  Mansfield's,  expressed  in  Lowiy  v. 
Aikenhead,  Mich.  8  G.  3,  3  B.  &  P.  594. 

It  was  contended  during  the  argument  of  this  case,  tjiat  the  protec- 
tion given  to  masters  when  speaking  of  the  conduct  of  servants,  was 
more  extensive,  and  appUed  also  to  communications  made  to  former 
employers;  and  Child  v.  Affieck  was  mentioned  as  an  instance.  But 
the  communication  to  the  former  master  was  not  made  a  ground  of 
action  in  that  case,  and  was  introduced  only  as  evidence  that  the  state- 
ment made  in  answer  to  the  inquiry  of  the  new  master  was  malicious. 
The  same  observation  applies  to  Rogers  v.  Clifton;  and  it  may  be 
collected  from  that  report  that  Chambre,  J.,  was  of  opinion,  that, 
where  statements  are  made  which  are  not  in  answer  to  inquiries,  the 
defendant  must  plead,  and  prove,  a  justification. 

Again,  where  a  party  asks  advice  or  information  upon  a  subject  on 
which  he  is  interested;  or  where  the  relative  position  of  two  parties 
is  such  that  the  one  has  a  right  to  expect  confidential  information  and 
advice  from  the  other;  it  may  be  a  moral  duty  to  answer  such  in- 
quiries and  give  such  information  and  advice;  and  the  statements 
made  may  be  rendered  lawful  by  the  occasion,  although  defamatory  of 
some  tiiird  person,  as  in  Dunman  v.  Bigg,  1  Campb.  269,  and  Todd  v. 
Hawkins,  2  M.  &  Rob.  20,  8  C.  &  P.  88. 

Two  cases  —  Herver  v.  Dowson,  Bull.  N.  P.  8,  and  Cleaver  v.  Sar- 
raude,  reported  in  M'Dougall  v.  Claridge,  1  Campb.  268  —  were 
quoted  as  authorities  for  giving  a  more  extended  meaning  to  the  teim 
*'  moral  duty,"  and  making  it  include  all  cases  where  one  man  had 
information,  which,  if  true,  it  would  be  important  for  another  to 
know.  But  the  notes  of  those  cases  are  very  gdiort:  in  the  former  the 
precise  circumstances  under  which  the  statement  was  made  —  see 
King  V.  Watts,  8  C.  &  P.  614,  that  such  a  statement  made  wUhont 
inquiry  is  not  lawful  —  and  in  the  latter,  the  position  of  the  defendant 
with  reference  to  the  Bishop  of  Durham,  to  whom  it  was  made,  are 
left  unexplained.  I  cannot,  therefore,  consider  them  as  satisfactory 
authorities  for  the  position  to  establish  which  they  were  quoted:  and, 
in  the  absence  of  any  clear  and  precise  authority  in  favor  of  it,  I 
cannot  persuade  myself  that  it  is  correct,  as,  if  established  at  all,  it 
must  be  at  the  expense  of  another  moral  duty,  viz.,  not  to  publish 
defamatory  matter  imless  you  know  it  to  be  true. 

For  these  reasons,  I  am  of  opinion,  that  the  rule  for  a  new  trial 
should  be  made  absolute. 

The  comt  being  thus  divided  in  opinion,  the  rule  for  a  new  trial  fell 
to  the  ground,  and  the  defendant  retained  his  verdict.^ 

^  "  If  it  had  been  necessary,  I  should  have  been  fuUy  prepared  to  go  the  whole 
length  of  the  doctrine  laid  down  by  Tindal,  C.  J.,  in  the  case  of  Coxhead  v.  Kich- 
ards"  per  Willes,  J.,  in  Amann  v,  Damm,  8  C.  B.  n.  b.  592,  602.    Blackburn,  J., 


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CHAP.  VI.]  JOANNES  V.  BENNETT  747 

JOANNES  V.  BENNETT 

SuPBEMB  Judicial  Court,  Massachusetts,  Octobeb,  1862. 

Reported  in  5  AUen,  169. 

Tort  brought  on  the  12th  of  June,  1860,  in  the  name  of  "  The 
Count  Joannes  (bom  '  George  Jones ')  **^  for  two  libels  upon  him 
contained  in  letters  to  a  woman  to  whom  he  was  then  a  suitor,  and  was 
afterwards. married,  endeavoring  to  dissuade  her  from  entering  into 
the  marriage. 

At  the  trial  in  this  coiut,  before  Merrick,  J.,  it  appeared  that  the 
defendant  had  for  several  years  held  the  relation  of  pastor  to  the  par- 
ents of  the  woman,  as  members  of  his  church,  and  to  the  daughter,  as 
a  member  of  his  choir;  and  there  was  evidence  tending  to  show  that 
he  was  on  the  most  intimate  terms  of  friendship  with  the  parents,  and 
that,  on  the  18th  of  May,  1860,  being  on  a  visit  from  his  present  resi- 
dence in  Lockport,  New  York,  he  called  upon  the  father  at  his  place  of 
business  in  Boston,  and  was  urged  by  him  to  accompany  him  to  his 
residence  in  South  Boston,  the  father  stating  that  both  he  and  his  wife 
were  in  great  distress  of  mind  and  anxiety  about  their  daughter,  and 
that  they  feared  she  would  engage  herself  in  marriage  to  the  plaintiff. 
On  their  way  to  South  Boston,  the  father  stated  to  the  defendant 
what  he  and  his  wife  had  heard  and  apprehended  about  the  plaintiff, 
and  their  views  with  r^ard  to  his  being  an  unsuitable  match  for  their 
daughter,  who,  with  a  young  child  by  a  former  husband,  was  living 
with  them.  On  reaching  the  house,  it  was  found  that  the  daughter 
had  gone  out;  and  it  was  then  arranged  that  the  defendant  should 
write  a  letter,  and  materials  for  that  purpose  were  furnished,  and  the 
letter  set  forth  in  the  first  count  *  was  written,  addressed  to  the  daugh- 

in  Davies  v.  Snead,  L.  R.  5  Q.  B.  605, 611,  and  Lindley^  J.,  in  Stuart  v.  BelL  [1891] 
2  Q.  B.  341,  347.  expressed  similar  approval  of  the  opinion  of  Tindfd,  C.  J. 

Vanspike  v.  Cleyson,  Cro.  El.  541;  Peacock  t^.  Reynal,  2  Br.  A  Gold.  151,  15 
C.  B.  N.  s.  418,  cited;  Herver  v.  Dowson,  Bull.  N.  P.  8;  Cleaver  v,  Sarraude,  1 
Camp.  268,  cited;  Picton  v.  Jackman,  4  Car.  &  P.  257;  Dixon  v.  Smith.  29  L.  J. 
Ex.  125, 126:  Masters  v.  Burgess,  3  T.  L.  R.  96;  Stuart  v.  Bell,  [1891]  2  Q.  B.  341; 
Hart  t^.  Reed,  1  B.  Mon.  166;  Fresh  v.  Cutter,  73  Md.  87;  Noonan  v,  Orton,  32 
Wis.  106  Accord. 

Cockayne  v,  Hodgkisson,  5  Car.  A  P.  543  (aemble);  King  v.  Watts,  8  Car.  A  P. 
614;  Brown  v,  Vannaman,  85  Wis.  451  CorUra,  But  see  Hocks  if.  Sprangers,  113 
Wis.  123. 

In  Bennett  v.  Deacon,  2  C.  B.  628,  a  creditor  of  a  buyer  volunteered  a  warning 
to  the  seller  as  to  the  bu3rer'8  credit.  The  court  was  evenly  divided  as  to  whether 
the  communication  was  privileged. 

Compare  Irion  v.  Knapp,  132  La.  60  (letter  to  a  public  board  as  to  a  candidate 
for  an  appointment). 

Indian  Penal  Code,  §  499,  exception  9.  It  is  not  defamation  to  make  an  impu- 
tation on  the  character  of  another,  provided  that  the  imputation  be  made  in  good 
faith  for  the  protection  of  the  interests  of  the  person  making  it,  or  of  any  other 
person,  or  for  the  public  good. 

^  As  to  this  remarkable  litigant,  see  the  article  by  Irving  Browne,  "  Count  Jo- 
annes,'' 8  Green  Bag.  435. 

s  Only  what  relates  to  this  count  is  given. 


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748  JOANNES  V.  BENNETT  [CHAP.  VI. 

ter,  and  left  open  and  unsealed  with  the  mother,,  after  the  principal 
portion  of  it  had  been  read  aloud  at  the  tea-table  in  the  presence  of 
the  parents  and  a  confidential  friend  of  the  family.  On  leaving,  the 
defendant  was  further  requested  to  do  what  he  thought  best  to  induce 
the  daughter  to  break  up  the  match. 

The  judge  ruled  that  the  letter  was  not  a  privileged  communication; 
and  a  verdict  was  returned  for  the  plaintiff.  The  defendant  alleged 
exceptions. 

BiGELOw,  C.  J.  The  doctrine,  that  the  cause  or  occasion  of  a  publi- 
cation of  defamatory  matter  may  afford  a  sufficient  justification  in  an 
action  for  damages,  has  been  stated  in  the  form  of  a  legal  rule  or  canon, 
which  has  been  sanctioned  by  high  judicial  authority.  The  statement 
IB  this:  A  communication  made  bona  fide  upon  any  subject-matter  in 
which  the  party  conmiunicating  has  an  interest,  or  in  reference  to 
which  he  has  a  duty  to  perform,  is  privil^ed,  if  made  to  a  person 
having  a  corresponding  interest  or  duty,  although  it  contains  defama- 
tory matter,  which  without  such  privilege  would  be  libellous  and  ac- 
tionable. It  would  be  difficult  to  state  the  result  of  judicial  decisions 
on  this  subject,  and  of  the  principles  on  which  they  rest,  in  a  more 
concise,  accurate  and  intelligible  form.  Harrison  v.  Bush,  5  E.  <&  B. 
344;  Gassett  v.  Gilbert,  6  Gray,  94,  and  cases  cited.  It  seems  to  us 
very  clear  that  the  defendant  in  the  present  case  fails  to  show  any 
facts  or  circumstances  in  his  own  relation  to  the  parties,  or  in  the  mo- 
tives or  inducements  by  which  he  was  led  to  write  the  letter  set  out  in 
the  first  count  of  the  declaration,  which  bring  the  pubUcation  within 
the  first  branch  of  this  rule.  He  certainly  had  no  interest  of  his  own 
to  serve  or  protect  in  making  a  communication  concerning  the  char- 
acter, occupation  and  conduct  of  the  plaintiff,  containing  defamatory 
or  libellous  matter.  It  does  not  appear  that  the  proposed  marriage 
which  the  letter  written  by  the  defendant  was  intended  to  discoun- 
tenance and  prevent,  could  in  any  way  interfere  with  or  disturb  his 
personal  or  social  relations.  It  did  not  even  involve  any  sacrifice  of 
his  feelings  or  injury  to  his  affections.  The  person  to  whom  the  letter 
was  addressed  was  not  connected  with  him  by  the  ties  of  consanguin- 
ity or  kindred.  It  is  not  shown  that  he  had  any  peculiar  interest  in 
her  welfare.  Under  such  circumstances,  without  indicating  the  state 
of  facts  which  might  afford  a  justification  for  the  use  of  defamatory 
words,  it  is  plain  that  the  defendant  held  no  such  relation  towards  the 
parties  as  to  give  him  any  interest  in  the  subject^natter  to  which  his 
communication  concerning  the  plaintiff  related.  Todd  v.  Hawkins, 
2M.&Rob.20;  s.  C.8C.&P.  88.  No  doubt,  he  acted  from  laudable 
motives  in  writing  it.  But  these  do  not  of  themselves  afford  a  l^al 
justification  for  holding  up  the  character  of  a  person  to  contempt  and 
ridicule.  Good  intentions  do  not  furnish  a  valid  excuse  for  violating 
another's  rights,  or  give  impunity  to  those  who  cast  unjust  impu- 
tations on  private  character. 


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CHAP.  VI.]  BEALS  V.  THOMPSON  749 

It  is  equally  clear  that  the  defendant  did  not  write  and  publish  the 
alleged  libellous  communications  in  the  exercise  of  any  legal  or  moral 
duty.  He  stood  in  no  such  relation  towards  the  parties  as  to  confer 
on  him  a  right  or  impose  on  him  an  obligation  to  write  a  letter  contain- 
ing calunmious  statements  concerning  the  plaintiflF's  character.  What- 
ever may  be  the  rule  which  would  have  been  applicable  under  similar 
circumstances  while  he  retained  his  relation  of  reUgious  teacher  and 
pastor  towards  the  person  to  whom  this  letter  in  question  was  ad- 
dressed, and  towards  her  parents,  he  certainly  had  no  duty  resting 
upon  him  after  that  relation  had  terminated.  He  then  stood  in  no 
other  attitude  towards  the  parties  than  as  a  friend.  His  duty  to  ren- 
der them  a  service  was  no  greater  or  more  obligatory  than  was  his 
duty  to  refrain  from  uttering  and  publishing  slanderous  or  libellous 
statements  concerning  another.  It  is  obvious  that  if  such  communi- 
cations could  be  protected  merely  on  the  ground  that  the  party  mak- 
ing them  held  friendly  relations  with  those  to  whom  they  were  written 
or  spoken,  a  wide  door  would  be  left  open  by  which  indiscriminate 
aspersion  of  private  character  could  escape  with  impunity.  Indeed,  it 
would  rarely  be  difficult  for  a  party  to  shelter  himself  from  the  conse- 
quences of  uttering  or  publishing  a  slander  or  libel  under  a  privilege 
which  could  be  readily  made  to  embrace  almost  every  species  of  com- 
mimication.  The  law  does  not  tolerate  any  such  license  of  speech  or 
pen.  The  duty  of  avoiding  the  use  of  defamatory  words  cannot  be  set 
aside  except  when  it  is  essential  to  the  protection  of  some  substantial 
private  interest,  or  to  the  discharge  of  some  other  paramount  and 
urgent  duty.  It  seems  to  us,  therefore,  that  on  the  question  of  justi- 
fication set  up  by  the  defendant  under  a  supposed  privil^e  which 
authorized  him  to  write  the  letter  set  out  in  the  first  count,  the  instruc- 
tions of  the  court  were  correct.^ 


BEALS  V.  THOMPSON 

Supreme  Judicial  Court,  Massachusetts,  June  20, 1889. 

Reported  in  149  Maseachueetts  Reports^  405. 

Tort  for  a  libel  contained  in  letters  written  by  the  defendant  to  the 
plaintiff's  husband,  and  charging  her  with  having  been  guilty  of  dis- 
honorable conduct,  deception,  and  ingratitude  and  dishonesty  towards 
the  defendant,  whereby  she  lost  the  comfort  and  society  of  her  hus- 
band, who  refused  to  live  longer  with  her.* 

^  The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  $30,000; 
smd  the  defendant  alleged  exceptions. 

»  Krebs  v,  Oliver,  12  Gray,  239:  Byam  v,  Collins,  111  N.  Y.  143  Accord, 
Anon.,  15  C.  B.  n.  s.  410  (cited);  Adcock  v.  Marsh,  8  Ired.  360  Contra.    See 
Dobbin  t;.  Chicago  R.  Co.,  157  Mo.  App.  689. 
*  The  statement  of  the  case  has  been  condensed. 


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750  TOOGOOD  V.  SPTRING  [CHAP.  VI. 

Field,  J.  The  exceptions  also  state,  that  the  court  refused  "  to 
instruct  the  jury  that  each  of  the  letters  mentioned  in  plaintiff's  dec- 
laration was  a  privileged  communication,  and  that  this  action  could 
not  therefore  be  maintained,"  and  "  instructed  the  jury  that  no  privi- 
lege was  shown."  No  facts  are  recited  in  the  bill  of  exceptions  which 
tend  to  show  that  the  occasion  was  privileged,  except  such  as  may  be 
inferred  from  the  relation  of  the  parties  to  each  other,  and  from  the 
contents  of  the  letters.  Taking  the  case  most  favorably  for  the  defend- 
ant, it  is  that  the  plaintiff  owed  a  debt  to  the  defendant  for  money  lent 
to  her  before  her  marriage,  which,  after  her  marriage  with  a  rich  man, 
she  refusoi  to  pay,  under  circumstances  which  showed  ingratitude  on 
her  part,  and  that  the  defendant  wrote  a  letter  to  the  husband  defama- 
tory of  the  plaintiff,  for  the  purpose  of  compelling  him  or  her  to  pay 
the  debt.  This  is  not  a  lawful  method  of  collecting  a  debt,  or  of  com- 
pelling another  person  than  the  debtor  to  pay  it.  The  defendant  owed 
no  duty  to  the  husband  to  inform  him  of  the  bad  conduct  of  his  wife 
before  her  marriage,  and  the  husband  was  under  no  obligation  to  pay 
the  debts  of  his  wile  contracted  before  her  marriage.  There  is  no 
evidence  that  the  defendant  in  sending  the  letter  to  the  husband  was 
acting  in  the  discharge  of  any  duty,  social,  moral,  or  legal.  The 
ruling  was  right.  Gassett  v,  Gilbert,  6  Gray,  94;  Krebs  v.  Oliver,  12 
Gray,  239;  Joannes  v.  Bennett,  5  All.  169;  Shurtleff  v.  Parker,  130 
Mass.  293;  White  v.  NichoUs,  3  How.  266.         Exceptions  overruled.^ 


TOOGOOD  V.  SPYRING 

In  the  Exchequer,  TRiNrrr  Term,  1834. 

Reported  in  I  Cromptorif  Meeson  dt  Boecoe^  181. 

The  judgment  of  the  court  was  deUvered  by 

Parke,  B.*  In  this  case,  which  was  argued  before  my  Brothers  Bol- 
LAND,  Alderson,  Gurney,  and  myself,  a  motion  was  made  for  a  non- 
suit, or  a  new  trial,  on  the  ground  of  misdirection.  It  was  an  action  of 
slander,  for  words  alleged  to  be  spoken  of  the  plaintiff  as  a  journeyman 
carpenter,  on  three  different  occasions.  It  appeared  that  the  defend- 
ant, who  was  a  tenant  of  the  Earl  of  Devon,  required  some  work  to  be 
done  on  the  premises  occupied  by  him  under  the  earl,  and  the  plaintiff, 
who  was  generally  employed  by  Brinsdon,  the  earPs  agent,  as  a  jour- 
neyman, was  sent  by  him  to  do  the  work.  He  did  it,  but  in  a  n^ligent 
manner;  and,  during  the  progress  of  the  work,  got  drunk;  and  some 
circumstances  occurred  which  induced  the  defendant  to  believe  that  he 

1  In  Simmonds  v,  Dunne,  Ir.  R.  5  C.  L.  358;  Over  v,  Schiflfling,  102  Ind.  191; 
York  V,  Johnson,  116  Mass.  482,  the  communications  were  not  pri^eged  for  want 
of  a  lemtimate  interest  or  duty  on  the  part  of  the  defendant. 

See  Whiteley  t^.  Newman,  9  Ga.  App.  89. 

*  Only  the  opinion  of  the  court  is  given. 


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CHAP.  VI.]  TOOGOOD  V.  SPTRING  751 

had  broken  open  the  cellar  door,  and  so  obtained  access  to  his  cider. 
The  defendant  a  day  or  two  afterwards  met  the  plaintiff  in  the  pres- 
ence of  a  person  named  Taylor,  and  charged  him  with  having  broken 
open  his  cellar  door  with  a  chisel,  and  also  with  having  got  drunk. 
The  plaintiff  denied  the  charges.  The  defendant  then  said  he  would 
have  it  cleared  up,  and  went  to  look  for  Brinsdon;  he  afterwards  re- 
turned and  spoke  to  Taylor,  in  the  absence  of  the  plaintiff;  and,  in 
answer  to  a  question  of  Taylor's,  said  he  was  confident  that  the  plain- 
tiff had  broken  open  the  door.  On  the  same  day  the  defendant  saw 
Brinsdon,  and  complained  to  him  that  the  plaintiff  had  been  negli- 
gent in  his  work,  had  got  drunk,  and  he  thought  he  had  broken  open 
the  door,  and  requested  him  to  go  with  him  in  order  to  examine  it. 
Upon  the  trial  it  was  objected,  that  these  were  what  are  usually  termed 
"  privileged  commimications."  The  learned  judge  thought  that  the 
statement  to  Brinsdon  might  be  so,  but  not  the  charge  made  in  the 
presence  of  Taylor;  and  in  respect  of  that  charge,  and  of  what  was 
afterwards  said  to  Taylor,  both  which  statements  formed  the  i^bject 
of  the  action,  the  plaintiff  had  a  verdict.  We  agree  in  his  opinion,  that 
the  communication  to  Brinsdon  was  protected,  and  that  the  state- 
ment, upon  the  second  meeting,  to  Taylor,  in  the  plaintiff's  absence, 
was  not;  but  we  think,  upon  consideration,  that  the  statement  made 
to  the  plaintiff,  though  in  the  presence  of  Taylor,  falls  within  the  class 
of  commxmications  ordinarily  called  privil^ed;  that  is,  cases  where 
the  occasion  of  the  pubUcation  affords  a  defence  in  the  absence  of  ex- 
press maUce.  In  general,  an  action  lies  for  the  malicious  publication 
of  statements  which  are  false  in  fact,  and  injurious  to  the  character  of 
another  (within  the  well-known  limits  as  to  verbal  slander),  and  the 
law  considers  such  publication  as  maUcious,  imless  it  is  fairly  made 
by  a  peison  in  the  discharge  of  some  public  or  private  duty,  whether 
l^al  or  moral,  or  in  the  conduct  of  his  own  affairs,  in  matters  where 
his  interest  is  concerned.  In  such  cases,  the  occasion  prevents  the 
inference  of  maUce,  which  the  law  draws  from  unauthorized  com- 
mimications,  and  affords  a  qualified  defence  depending  upon  the  ab- 
sence of  actual  malice.  U  fairly  warranted  by  any  reasonable  occasion 
or  exigency,  and  honestly  made,  such  commimications  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. 

Among  the  many  cases  which  have  been  reported  on  this  subject, 
one  precisely  in  point  has  not,  I  believe,  occurred;  but  one  of  the  most 
ordinary  and  common  instances  in  which  the  principle  has  been  ap- 
plied in  practice  is  that  of  a  f onner  master  giving  the  character  of  a 
discharged  servant;  and  I  am  not  aware  that  it  was  ever  deemed 
essential  to  the  protection  of  such  a  conmnmication  that  it  should  be 
made  to  some  person  interested  in  the  inquiry,  alone,  and  not  in  the 
presence  of  a  third  person.  If  made  with  honesty  of  piurpose  to  a  party 
who  has  any  interest  in  the  inquiry  (and  that  has  been  very  liberally 


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752  TOOGOOD  V.  SPYRING  [CHAP.  VI. 

construed,  Child  v,  Affleck,  4  Man.  &  Ryl.  590;  9B.  &  C.  403),  the 
simple  fact  that  there  has  been  some  casual  bystander  cannot  alter 
the  natiure  of  the  transaction.  The  business  of  life  could  not  be  well 
carried  on  if  such  restraints  were  imposed  upon  this  and  similar  com- 
munications, and  if,  on  every  occasion  in  which  they  were  made,  they 
were  not  protected  imless  strictly  private.  In  this  class  of  communica- 
tions is,  no  doubt,  comprehended  the  right  of  a  master  bona  fide  to 
charge  his  servant  for  any  supposed  misconduct  in  his  service,  and  to 
give  him  admonition  and  blame;  and  we  think  that  -the  simple  cir- 
cumstance of  the  master  exercising  that  right  in  the  presence  of  an- 
other, does  by  no  means  of  necessity  take  away  from  it  the  protection 
which  the  law  would  otherwise  afiford.  Where,  indeed,  an  opportunity 
is  sought  for  making  such  a  charge  before  third  persons,  which  might 
have  been  made  in  private,  it  would  afford  strong  evidence  of  a  mali- 
cious intention,  and  thus  deprive  it  of  that  immunity  which  the  law 
allows  to  such  a  statement,  when  made  with  honesty  of  purpose;  but 
the  mere  fact  of  a  third  person  being  present  does  not  render  the  com- 
munication absolutely  unauthorized,  though  it  may  be  a  circumstance 
to  be  left  with  others,  including  the  style  and  character  of  the  language 
used,  to  the  consideration  of  the  jury,  who  are  to  determine  whether 
the  defendant  has  acted  bona  fide  in  making  the  charge,  or  been  influ- 
enced by  malicious  motives.^  In  the  present  case,  the  defendant  stood 
in  such  a  relation  with  respect  to  the  plaintiff,  though  not  strictly  that 
of  master,  as  to  authorize  him  to  impute  blame  to  him,  provided  it  was 
done  fairly  and  honestly,  for  any  supposed  misconduct  in  the  course 
of  his  employment;  and  we  think  that  the  fact,  that  the  imputation 
was  made  in  Taylor's  presence,  does  not,  of  itself,  render  tfie  com- 
munication unwarrant^  and  officious,  but  at  most  is  a  circumstance 
to  be  left  to  the  consideration  of  the  jury.  We  agree  with  the  learned 
judge,  that  the  statement  to  Taylor,  in  the  plaintiff's  absence,  was 
unauthorized  and  officious,  and  therefore  not  protected,  although 
made  in  the  beUef  of  its  truth,  if  it  were,  in  point  of  fact,  false;  but, 
inasmuch  as  no  damages  have  been  separately  given  upon  this  part  of 
the  charge  alone,  to  which  the  fourth  coimt  is  adapted,  we  cannot 
support  a  general  verdict,  if  the  learned  judge  was  wrong  in  his  opin- 
ion as  to  the  statement  to  the  plaintiff  in  Taylor's  presence;  and,  as 
we  think  that  at  all  events  it  should  have  been  left  to  the  jury  whether 
the  defendant  acted  maliciously  or  not  on  that  occasion,  liiere  must  be 
a  new  trial.  Rule  absolute  for  a  new  trial} 

1  Jones  V.  Thomas,  34  W.  R.  104;  Pittard  v.  Oliver,  [1891]  1  Q.  B.  474:  Broueh- 
ton  V.  McGrew,  39  Fed.  672;  Brow  v.  Hathaway,  13  All.  239;  Billings  v.  Fairbanks, 
136  Mass.  177,  139  Mass.  66;  Keane  r.  Sprague  (N.  Y.  City  Court),  30  Alb.  L.  J. 
283  Accord. 

Webber  v.  Vincent,  9  N.  Y.  Supp.  101  Cmtra. 

Defamatory  letter  after  termination  of  employment.  National  Cash  Register  Co. 
V.  Sailing.  173  Fed.  22. 

•  In  Cnristopher  v.  Akin,  214  Mass.  332,  the  plaintiff  was  a  journeyman  painter 
in  the  employ  of  the  defendant,  and  was  at  work  on  the  house  of  one  Tillinghast. 


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CHAP.  VI.]  WILLIAMSON  V.  FREER  753 

WILLIAMSON  V.  FREER 

In  the  Common  Pleas,  April  20,  1874. 

Reported  in  Law  Reports ,  9  Common  Pleas,  393. 

This  was  an  action  for  a  libel,  tried  before  Brett,  J.,  at  the  last 
assizes  for  Leicester.  The  facts  were  as  follows:  The  plaintiff  was 
employed  as  assistant  in  the  shop  of  the  defendant,  a  shoemaker,  at 
Leicester.  The  defendant  having  accused  the  plaintiff  of  robbing 
him  of  money,  sent  two  post-office  telegrams  to  her  father,  who  resided 
in  London,  to  inform  him  of  his  suspicions.  The  first  telegram  was  to 
this  effect :  "  Come  at  once  to  Leicester,  if  you  wish  to  save  your  child 
from  appearing  before  a  magistrate."  The  second  was  as  follows: 
"  Your  child  will  be  given  in  charge  of  the  poUce  unless  you  reply  and 
come  to-day.    She  has  taken  money  out  of  the  till." 

The  charge  was  persisted  in  down  to  the  trial;  but  there  was  no  evi- 
dence to  support  it.  It  did  not  appear  that,  beyond  the  officials  of 
the  post-office,  through  whose  hands  the  telegrams  passed,  they  had 
come  to  the  knowledge  of  any  other  persons  than  the  father,  mother, 
and  brother  of  the  plaintiff. 

The  learned  judge  left  it  to  the  jury  to  say  whether  the  statements 
were  Ubellous,  and  whether  it  was  reasonable  to  transmit  them  by  tele- 
graph rather  than  by  post. 

The  jury  found  that  the  statements  were  libellous,  and  that  it  was 
not  reasonable  to  send  them  by  telegraph,  and  they  returned  a  verdict 
for  the  plaintiff,  damages  £100. 

TiUinghast  complained  to  the  defendant  that  some  of  his  men  had  stolen  a  putty 
knife  and  other  property  belonging  to  him.  The  defendant  recompensed  Tuling- 
haflt  for  the  property  and  testified  that  he  was  told  by  one  of  his  men  that  the 
plaintiff  had  admitted  to  him  that  he  took  the  putty  knife.  The  men  were  paid  off 
by  the  defendant  at  his  shop  on  Saturday  ni^t,  —  their  time  being  made  up  to 
Wednesdajy.  Their  pay  was  handed  to  them  m  envelopes.  When  a  man  was  dis- 
charged his  envelope  contained  his  pay  up  to  Saturday  night.  The  plaintiff's 
envelope  contained  his  pay  in  full,  less  what  the  defendant  had  paid  TiUinghast  for 
the  property,  with  a  bill  for  it.  There  were  four  or  five  men  in  the  shop  waiting  to 
be  paid  off  when  it  came  the  plaintiff's  turn  to  be  paid.  The  plaintiff  opened  his 
envelope  and  counted  the  money  and  found  the  bill.  The  plamtiff  asked  the  de- 
fendant what  that  meant,  and  the  defendant  said  in  response,  *'  t)o  you  want  to 
know  in  front  of  aU  these  men  ?  "  and  he  said  "  Yes,"  whereupon  the  defendant 
said,  "  That  is  the  stuff  you  stole  from  the  TiUinghast  job."  Morton,  J.,  said: 
"  Whether  a  communication  is  or  is  not  privUeged  does  not  depend  so  much  on  the 
manner  or  form  in  which  crime  is  imputed,  where  the  aUeged  slander  consists  as 
here  of  a  charge  of  crime,  as  on  the  occasion  and  circumstances  under  which  the 
charge  is  made.  If  made  in  good  faith  in  reference  to  a  matter  in  which  the  person 
making  it  is  immediately  interested,  and  for  the  purpose  of  protecting  his  interest 
and  in  the  beUef  that  it  is  true  and  without  any  maUcious  motive,  the  communica- 
tion is  what  is  termed  privUeged;  that  is,  the  occasion  and  the  circumstances 
imder  which  it  is  made  are  held  to  be  such  as,  if  nothing  more  appears,  to  excuse  or 
justify  the  statements  that  are  made." 

See  MadUl  v.  Currie,  168  Mich.  546. 

Ck)mpare  Adam  v.  Ward,  [1917]  A.  C.  309  (statement  given  to  the  press  by  the 
army  board  in  reply  to  a  speech  in  Parliament  regarding  an  army  officer). 


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754  WILLIAMSON  V.  FREEB  [CHAP.  VI. 

O^MaUey,  Q.  C.  (with  him  Merewether),  pursuant  to  leavQ,  moved 
to  enter  a  verdict  for  the  defendant.^ 

Brett,  J.  I  reserved  the  point  because  I  thought  it  was  a  very  im- 
portant one.  It  is  whether,  where  a  commimication  is  to  be  made  to  a 
relative  of  a  person  against  whom  a  chaise  is  preferred,  which  com- 
mimication would  be  privil^ed  if  sent  by  letter  in  the  ordinary  way 
the  privil^e  is  not  lost  by  sending  it  in  the  form  of  a  telegram,  — 
whether  a  communication  in  that  form  can  be  said  to  be  made  to  one 
person,  when  in  point  of  fact  it  passes  through  several  hands  before  it 
reaches  its  ultimate  destination.  Privilege  is  not  wanted  unless  the 
pubUcation  is  libellous.  The  question  then  is  whether  the  character  of 
an  innocent  person  is  to  be  destroyed  because  the  libeller  thinks  fit  to 
send  the  libel  in  this  shape  rather  than  in  a  sealed  letter.  I  do  not 
mean  to  say  that  there  was  malice  in  fact  here.  But  I  agree  with  my 
Lord  that  sending  the  messages  by  telegraph  when  they  might  have 
been  sent  by  letter  was  evidence  of  malice.  I  desire,  however,  to  put 
this  higher.  I  think  that  a  commimication  which  would  be  privileged 
if  made  by  letter  becomes  unprivil^ed  if  sent  through  the  telegraph 
office,  because  it  is  necessarily  communicated  to  all  the  clerks  through 
whose  hands  it  passes.  It  is  like  the  case  of  a  Ubel  contained  on  the 
back  of  a  post  card.*  It  was  never  meant  by  the  Legislature  that  these 
faciUties  for  postal  and  telegraphic  communication  should  be  used  for 
the  purpose  of  more  easily  disseminating  Ubels.  Where  there  is  such 
a  publication,  it  avoids  the  privil^e,  because  it  is  commimicated 
through  unprivil^ed  persons.  As  to  the  damages,  I  am  not  at  all  dis- 
posed to  think  them  excessive.  The  charge  against  the  plaintiff  was 
of  a  very  grave  character.  It  was  made  with  considerable  severity, 
and  it  was  insisted  upon  even  down  to  the  trial.         Rule  refused} 

1  The  statement  of  the  case  is  abridged;  the  arguments  of  counsel  and  the  con- 
curring opinions  of  Lord  Coleridge,  C.  J.,  and  Denman,  J.,  are  omitted. 

*  Robmson  v.  Jones,  L.  R.  4  £r.  391  Accord. 

*  Robinson  v.  Jones,  L.  R.  4  Jr.  391  Accord.  See  also  Smith  v.  Crocker,  6  T.  L. 
R.  441;  Muetze  v.  Tuteur,  77  Wis.  236. 

Statement  in  presence  of  third  persons  not  interested.  Fowlie  t^.  Cruse,  52  Mont. 
222;  Fields  v.  Bynum,  16(5  N.  O,  413. 

Notice  of  discharge  of  employee  posted  on  the  premises.  Ramsdell  t^.  Pennsyl- 
vania Co.,  79  N.  J.  Law,  379. 

NoUce  to  customers  in  a  local  newspaper.  Hatch  v.  Lane,  105  Mass.  394.  See 
Delany  v.  Jones,  4  Esp.  190  (but  see  Lev  t?.  Lawson,  4  A.  &  E.  798);  Common- 
wealth V.  Featherston,  9  Phila.  594;  HoUiday  v.  Ontario  Co.,  33  Up.  Can.  Q.  B. 
558. 

General  pvblicitywith  respect  to  candidate  for  local  office.  Duncombe  v.  Daniel, 
1  WiUmore,  W.  &  H.  101,  8  Car.  &  P.  222;  Jones  v.  Vamum,  21  Fla.  431 ;  State  v. 
Haskins.  109  la.  656;  Coleman  v.  MacLennan,  78  Kan.  711;  Bronson  v.  Bruce,  59 
Mich.  467;  Wheaton  v.  Beecher,  66  Mich.  307;  Belknap  v.  BaU,  83  Mich.  583;  Al- 
drich  V.  Press  Co.,  9  Minn.  133  G>ut  see,  contray  Marks  v.  Baker,  28  Minn.  162); 
Bigner  v.  Hodges,  82  Miss.  215;  Lewis  v.  Few,  5  Johns.  1;  Root  v.  King,  7  Cow. 
613;  Hunt  v.  Bennett,  19  N.  Y.  173;  Seely  v.  Blair,  Wright,  (Ohio)  358,  683; 
Knapp  V.  Campbell,  14  Tex.  Civ.  App.  199;  Sweeney  v.  BiJter,  13  W.  Va.  158. 
CompMEtre  Flynn  v.  Boglarsky.  164  Mich.  513. 

But  a  communication  to  tne  electors  alone  is  privileged,  if  made  in  good  faith. 
Wisdom  9.  Brown,  1  T.  L.  R.  412;  Pankhurst  v.  Hamilton,  3  T.  L.  R.  500;  Burke 


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CHAP.  VI.]  MARKS  V.  BAKER  755 

'  MARKS  V.  BAKER 

Supreme  Court,  Minnesota,  July  25, 1881. 
Reported  in  28  Minnesota  Reports,  162. 

Bbrrt,  J.  This  is  an  action  for  libel.  The  plaintiff  was,  at  the  times  here- 
inafter mentioned,  treasurer  of  the  city  of  Mimkato,  and,  as  such,  custodian 
of  the  moneys,  and  from  April  1  to  6, 1880,  a  candidate  for  re-election  to  the 
same  office,  at  an  election  fixed  for  the  latter  day.  The  defendants  were  resi- 
dents and  tax-payers  of  the  city,  and  publishers  thereat  of  the  Mankato  Free 
Press,  a  weekly  newspaper,  and  as  such  they  published  therein,  on  April  2, 
1880,  the  article  compkdned  of,  in  which,  as  the  plaintiff  claims  in  his  com- 
plaint, they  charged  and  intended  to  charge  the  defendant  as  treasurer  with 
embezzling  city  funds.  It  is  alleged  in  the  complaint  that  the  matter  charged 
as  libellous  was  of  and  concerning  the  plaintiff  in  his  office  —  that  it  was  false 
and  defamatory,  and  that  the  publication  was  malicious.  The  answer  denies 
malice,  all  intent  to  injure  or  defame  plaintiff,  any  intention  on  defendants' 
part  to  charge  him  with  embezzlement,  and  alleges  that  defendants  published 
the  article  complained  of,  as  a  communication,  solely  for  the  purpose  of  calling 
the  attention  of  the  public  to  the  matter  therein  referred  to,  viz.,  to  a  discrep- 
ancy in  certain  official  reports  tending  to  show  that  the  plaintiff  had  failed  to 
charge  himself  with  the  full  amount  of  city  funds  which  he  had  received  from 
the  county  treasury,  and  with  the  view  of  obtaining  an  inquiry  as  to  the  cause 
of  such  discrepancy.  The  answer  further  alleges  that  "  the  publication  was 
made  in  good  faith;  .  .  .  that  defendants  believed  that  there  was  reasonable 
cause  for  the  publication; "  and  "  that  they  were  then  and  there  discharging  a 
sacred  and  moral  obligation  as  .  .  .  editors  and  publishers.''  The  reply  puts 
these  allegations  of  the  answer  in  issue.  Upon  the  trial  it  was  admitted  that, 
notwithstanding  the  discrepancy,  (which  in  fact,  existed)  the  plaintiff  had 
accounted  for  t^e  full  sum  received  by  him  as  city  treasurer  from  the  county 
treasurer,  so  that  the  defendants'  charge  or  insinuation  to  the  contrary  was 
false. 

Defendant,  Baker,  having  been  called  for  the  defence,  was  asked  the  ques- 
tions following,  to  which  he  made  answers  as  follows,  all  against  the  objection 
and  exception  of  the  plaintiff: 

(1)  "  Did  you  believe  the  report  of  the  city  recorder  to  be  true  ?  Answer, 
I  did  believe  it  to  be  true.  (This  report  was  that  from  which,  as  defendants  in 
the  alleged  libel  charged  or  insinuated,  it  appeared  that  plaintiff  had  failed  to 
account  for  all  the  money  received  by  him  from  the  county  treasurer.) 

(2)  "  What  was  your  object  in  publishing  the  article?  Answer.  I  pub- 
lished it  for  the  general  public  interest. 

(3)  "  Did  you  have  any  other  object  in  publishing  the  article  ?  Answer,  I 
did  not. 

V,  Mascarich,  81  Cal.  302  (««m6fe);  Mott  v,  Dawson,  46  la.  533;  Bays  v.  Hunt, 
60  la.  251;  State  v.  Balch,  31  Kan.  465;  Commonwealth  v.  Wardwell,  136  Mass. 
164;  Briggs  v,  Garrett,  111  Pa.  St.  404. 

But  see,  contra,  Smith  v,  Bumis,  106  Mo.  94,  where  the  distinction  between  fair 
conmient  and  qualified  privilege  was  overlooked.  See  also  Estelle  v.  Daily  News 
Pub.  Co.,  99  Neb.  397;  Arnold  v,  Ingram,  151  Wis.  438;  Putnam  v,  Browne,  162 
Wis.  524. 


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756  MARKS  V.  BAKER  [CHAP.  VI. 

(4)  "  You  have  stated  that  you  had  no  other  purpose  than  doing  a  public 
duty  in  publishing  the  article.  I  want  to  know  what  your  object  was,  —  to 
charge  somebody  with  a  crime,  or  whether  you  had  some  other  object  ?  Aiv- 
svoer.  To  draw  attention  to  the  discrepancy  of  the  two  reports.  I  had  seen 
what  purported  to  be  the  official  report  of  the  county  auditor,  and  I  had  seen 
the  city  recorder's;  and  the  county  auditor's  showed  that  Marks,  as  city  treas- 
urer, had  received  from  the  county,  during  the  fiscal  year,  SI  15.02  more  than 
the  city  recorder's  report  showed  that  he  had  received  from  the  county  for  the 
same  time.  (These  are  the  two  reports  between  which  the  discrepancy  was 
charged  to  exist.) 

(5)  "  Did  you,  by  publishing  the  article,  intend  to  charge  the  plaintiff  with 
embezzling  any  siun  whatever  ?   Answer.    I  did  not." 

The  defence  set  up  in  the  answer  is,  in  effect,  that  the  publication  com- 
plained of  is  a  privileged  communication. 

The  rule  is  that  a  communication  made  in  good  faith  upon  any  subject- 
matter  in  which  the  party  communicating  has  an  interest,  or  in  reference  to 
which  he  has  a  duty,  public  or  private,  either  legal,  moral,  or  social,  if  made  to 
a  person  having  a  corresponding  interest  or  duty,  is  privileged;  that  in  such 
case  the  inference  of  malice  which  the  law  draws  from  defamatory  words  is  re- 
butted, and  the  onus  of  proving  actual  malice  is  cast  upon  the  person  claiming 
to  have  been  defamed.  Toogood  v.  Spynng,  1  Cr.  M.  ^  R.  181 ;  2  Addison  on 
Torts,  §  1091;  Harrison  v.  Bush,  5  E.  &  B.  544;  Moak's  Underbill  on  Torts, 
146;  Quinn  W.Scott,  22  Minn.  456.  That  the  subject-matter  of  the  communi- 
cation is  one  of  public  interest  in  the  community  of  which  the  parties  to  the 
communication  are  members,  is  sufficient,  as  respects  interest,  to  oonfer  the 
privilege.  Purcell  v,  Sowler,  2  C.  P.  D.  215;  Palmer  v.  City  of  Concord,  48 
N.  H.  211;  Cooley  on  Torts,  217.  The  subject-matter  of  the  communication 
in  the  case  at  bar  was  one  of  public  interest  in  the  city  of  Mankato,  where  the 
publication  was  made,  and  one  in  ^v^ch  the  defendants  had  an  interest  as 
residents  and  tax-payers  of  the  city.  It  was,  therefore,  a  privileged  com- 
mimication,  within  the  rule  mentioned,  if  made  in  good  faith.^ 

Judgment  affirmed,^ 

^  The  court  found  that  the  defendant  acted  in  good  faith. 

*  Ashford  v.  Evening  Star  Co.,  41  App.  D.  C.  395;  Addington  v.  Times  Pub.  Co., 
138  La.  731;  Briggs  v,  Garrett,  111  Pa.  St.  404  {sembk))  Express  Co.  v.  Copeland, 
64  Tex.  354  Accord,  Compare  Bingham  v,  Gaynor,  141  App.  Div.  301;  Ivie  v, 
Minton,  75  Or.  483. 

Statement  ai  a  meeting  to  oppose  a  candidate  for  public  office.  Baker  v.  Warner, 
231  U.  S.  588. 

Criticism  of  minister  in  a  church  convention,  Dickson  v.  Lights,  (Tex.  Civ.  App.) 
170  S.  W.  834. 

Criticism  of  member  of  association  at  a  meeting  to  discuss  the  affairs  of  the  asso- 
ciation.    Caldwell  v.  Hayden,  42  App.  D.  C.  166. 

Reply  to  d^amatory  statements.  Adam  t^.  Ward  [1917]  A.  C.  309:  Preston  v. 
Hobbs,  161  App.  Div.  363;  Smith  v.  Kemp,  132  La.  943. 


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CHAP.  VI.]  CARTER   V.  PAPINEAU  757 

CARTER  V.  PAPINEAU 

Supreme  Judicial  Court,  Massachusetts,  January  27,  1916. 

Reported  in  222  MassachuseUa  Reports,  464. 

Braley,  J.^  The  evidence  would  have  amply  warranted  the  jury 
m  finding  that  the  defendant  Papineau  as  priest  in  charge  declined  to 
administer  to  the  plaintiff  the  rite  of  "  Holy  Communion  "  or  to  per- 
mit her  to  partake  thereof,  and  that  by  his  authority  and  order  she 
had  been  refused  admission  on  the  Lord's  Day  to  the  building  in  which 
religious  services  were  being  held.  It  is  contended  that  for  these  acts 
he  and  the  defendant  Lawrence,  bishop  of  the  diocese,  are  responsible 
in  damages,  and  that  the  verdicts  in  their  favor  were  ordered  wrongly. 

The  record  shows  that  the  Protestant  Episcopal  Church  of  America, 
of  which  the  parties  are  members,  has  a  body  of  canons  or  ecclesiastical 
law  of  its  own,  by  which  the  plaintiff  upon  baptism  and  confirmation 
agreed  to  be  bound,  and  under  which  her  rights  of  worship  must  be 
determined.  Fitzgerald  v.  Robinson,  112  Mass.  371.  Grosvenor  v. 
United  Society  of  Believers,  118  Mass.  78.  By  the  "  Rubric  in  the 
Order  for  the  Administration  of  the  Lord's  Supper,  or  Holy  Com- 
munion "  the  "  minister  "  is  given  authority  to  refuse  the  rite  to  any 
one  whom  he  knows  "  to  be  an  open  and  notorious  evil  Uver,  or  to 
have  done  any  wrong  to  his  neighbors  by  word  or  deed."  By ''  Canon 
40.  Of  Regulations  Respecting  the  Laity,"  Section  II,  "  When  a  per- 
son to  whom  the  Sacraments  of  the  Church  have  been  refused,  or  who 
has  been  repelled  from  the  Holy  Communion  under  the  Rubrics,  shall 
lodge  a  complaint  with  the  Bishop,  it  shall  be  the  duty  of  the  Bishop, 
imless  he  see  fit  to  require  the  person  to  be  admitted  or  restored  be- 
cause of  the  insuflSciency  of  the  cause  assigned  by  the  Minister,  to 
institute  such  an  inquiry  as  may  be  directed  by  the  Canons  of  the  Dio- 
cese or  Missionary  District,  and  should  no  such  Canon  exist,  the 
Bishop  shall  proceed  according  to  such  principles  of  law  and  equity 
as  wiU  insure  an  impartial  decision,  but  no  Minister  of  this  Church 
shall  be  required  to  admit  to  the  Sacraments  a  person  so  refused  or 
repelled,  without  the  written  direction  of  the  Bidiop." 

The  plaintiff  has  not  availed  herself  of  this  right  of  appeal  to  the 
only  personage  having  the  requisite  ecclesiastical  authority  to  review 
her  standing  as  a  member  and  communicant  or  to  pass  upon  her  cere- 
monial rights  in  accordance  with  the  principles  of  "  law  and  equity." 
Grosvenor  v.  United  Society  of  Believers,  118  Mass.  78,  91.  The 
letter  of  her  counsel  to  the  bishop,  to  which  no  reply  appears  to  have 
been  made,  cannot  be  considered  as  an  appeal  which  had  been  denied. 
It  contains  only  recitals  of  all  her  grievances,  for  the  rectification  of 
which  his  friendly  intercession  is  requested. 

^  Only  part  of  the  opinion  is  given. 


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758  PULLMAN  V.  WALTER  HILL  &  CO.  [CHAP.  VI. 

But  if  an  appeal  had  been  taken  properly  and  the  decision  had  been 
advCTse,  the  plaintiff  would  have  b^en  remediless,  for  in  this  Common- 
wealth her  religious  rights  as  a  communicant  are  not  enforceable  in  the 
civil  courts.  Fitzgerald  v.  Robinson,  112  Mass.  371,  379.  Canadian 
Religious  Association  v.  Parmenter,  180  Mass.  415,  420,  421.  For 
the  same  reason  it  is  unnecessary  to  decide  whether  at  conmion  law,  as 
the  plaintiff  contends,  a  member  of  the  Church  of  England  could  sue 
if  unjustifiably  denied  participation  in  the  communion.  See  Rex  v. 
Dibdin,  [1910]  P.  D.  57;  Thompson  v.  Dibdin,  [1912]  A.  C.  533. 

Nor  can  the  action  be  maintained  for  defamation.  Undoubtedly 
she  suffered  mental  distress,  and  the  omission  was  in  the  presence  of 
the  other  communicants.  The  plaintiff,  however,  was  not  pubUcly 
declared  to  be  "  an  open  and  notorious  evil  liver,"  or  to  be  a  person 
who  had  done  wrong  to  her  neighbors  by  word  or  deed.  The  act  of 
"  passing  her  by  "  without  comment  was  within  the  discipline  or 
ecclesiastical  poUty  of  the  church  and  does  not  constitute  actionable 
defamation  of  character.  Famsworth  v.  Storrs,  5  Cush.  412,  415. 
Fitzgerald  v,  Robinson,  112  Mass.  371.  Morasse  v.  Brochu,  151  Mass. 
567.    See  R.  L.  c.  36,  §§  2,  3. 

The  action  for  exclusion  from  the  church  building  also  must  fail. 
It  appears  that  upon  being  informed  by  the  constable  employed  for 
the  purpose  that  die  could  not  enter  the  plaintiff  made  no  attempt  to 
pass,  but  acquiesced  and  obeyed  the  order.  The  elements  of  an  assault 
are  absent.  No  intimidation  was  used,  or  unjustifiable  coercion  exer- 
cised. By  Canon  16,  to  which  the  plaintiff  subjected  herself,  control 
of  the  worship  and  spiritual  jmisdiction  of  the  mission,  including  the 
use  of  the  building  for  religious  services,  was  in  Papineau  as  the 
minister  in  charge,  "  subject  to  the  authority  of  the  Bishop/'  ^ 


PULLMAN  V.  WALTER  HILL  4  COMPANY 

In  the  Court  of  Appeal,  December  19, 1890. 
Reported  in  [1891]  1  Queen's  Bench,  524. 

Motion  by  the  plaintiffs  for  a  new  trial. 

At  the  trial  before  Day,  J.,  with  a  jury,  it  appeared  that  the  plain- 
tiffs were  members  of  a  partnership  firm  of  R.  &  J.  Pullman,  in  which 
there  were  three  other  partners.  The  place  of  business  of  the  firm 
was  No.  17,  Greek  Street,  Soho.  The  plaintiffs  were  the  owners  of 
some  property  in  the  Borough  Road,  which  they  had  contracted  in 
1887  to  sell  to  Messrs.  Day  &  Martin.  The  plaintiffs  remained  in 
possession  of  the  property  for  some  time,  and  agreed  to  let  a  hoarding, 
which  was  erected  upon  the  property,  at  a  rent  to  the  defendants,  who 

^  CrUicismofmernherofcimgregcUuminasermon.  Hassett  v.  Carroll,  85  Conn.  23. 
Statement  by  clergyman  to  congregation  as  to  conduct  of  a  trustee,    Everett  t^. 
DeLong,  144  III.  App.  496. 


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CHAP.  VI.]  PULLMAN  V.  WALTER  HILL  &  CO.  759 

were  advertising  agents,  for  the  display  of  advertisements.  In  1889 
a  dispute  arose  between  the  plaintiffs  and  Day  &  Martin,  who  were 
building  upon  the  land,  as  to  which  of  the  two  were  entitled  to  the 
rent  of  the  hoarding;  and  on  September  14,  1889,  the  defendants, 
after  some  prior  correspondence,  wrote  the  following  letter:  — 

"  Messrs.  Pullman  .&  Co.,  17,  Greek  Street,  Soho. 
"  Re  Boro'  Road. 
•*  Dear  Sirs,  —  We  must  call  your  serious  attention  to  this  matter. 
The  builders  state  distinctly  that  you  had  no  right  to  this  money  what- 
ever; consequently  it  has  been  obtained  from  us  under  false  pretences. 
We  await  your  reply  by  return  of  post. 

"Yours  faithfully, 
"  (Signed)  Walter  Hill  4  Co.,  Limited.'' 

This  letter  was  dictated  by  the  defendants'  managing  director  to  a 
short-hand  clerk,  who  transcribed  it  by  a  type-writing  machine.  This 
type-written  letter  was  then  signed  by  the  managing  director,  and, 
having  been  press-copied  by  an  office-boy,  was  sent  by  post  in  an 
envelope  addressed  to  Messrs.  Pullman  &  Co.,  17,  Greek  Street,  Soho. 
The  defendants  did  not  know  that  there  were  any  other  partners  in  the 
firm  besides  the  plaintiffs.  The  letter  was  opened  by  a  clerk  of  the  firm 
in  the  ordinary  course  of  business,  and  was  read  by  two  other  clerks. 
The  plaintiffs  brought  this  action  for  libel.  The  defendants  contended 
that  there  was  no  pubUcation,  and  that,  if  there  were,  the  occasion 
was  privil^ed.  The  learned  judge  held  that  there  was  no  publication, 
that  the  occasion  was  privileged,  and  that  there  was  no  evidence  of 
maUce.    He  therefore  nonsuited  the  plaintiffs.^ 

Lord  Esher,  M.  R.  Two  points  were  decided  by  the  learned  judge : 
(1)  that  there  had  been  no  pubUcation  of  the  letter  which  is  allied 
to  be  a  libel;  (2)  that,  if  there  had  been  pubUcation,  the  occasion  was 
privil^ed.  The  question  whether  the  letter  is  or  is  not  a  Ubel  is  for 
the  jury,  if  it  is  capable  of  being  considered  an  imputation  on  the 
character  of  the  plaintiffs.  If  there  is  a  new  trial,  it  will  be  open  to  the 
jury  to  consider  whether  there  is  a  Ubel,  and  what  the  damages  are. 
The  learned  judge  withdrew  the  case  from  the  jury. 

The  first  question  is,  whether,  assuming  the  letter  to  contain  de- 
famatory matter,  there  has  been  a  pubUcation  of  it.  What  is  the 
meaning  of  "  pubUcation  "  ?  The  making  known  the  defamatory 
matter  after  it  has  been  written  to  some  person  other  than  the  person 
of  whom  it  is  written.  If  the  statement  is  sent  straight  to  the  person  of 
whom  it  is  written,  there  is  no  pubUcation  of  it;  for  you  cannot  pub- 
lish a  Ubel  of  a  man  to  himself.  If  there  was  no  pubUcation,  the  ques- 
tion whether  the  occasion  was  privil^ed  does  not  arise.  If  a  letter  is 
not  communicated  to  any  one  but  the  person  to  whom  it  is  written, 

^  The  arguments  of  counsel  and  the  concurring  opinions  of  Lopes  and  Kay, 
LJJ.,  are  omitted. 


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760  PULLMAN  t'.  WALTER  HILL  &  CO.  [CHAP.  VI. 

there  is  no  publication  of  it.  And,  if  the  writer  of  a  letter  locks  it  up  in 
his  own  desk,  and  a  thief  comes  and  breaks  open  the  desk  and  takes 
away  the  letter  and  makes  its  contents  known,  I  should  say  that  would 
not  be  a  publication.  If  the  writer  of  a  letter  shows  it  to  his  own  clerk 
in  order  that  the  clerk  may  copy  it  for  him,  is  that  a  pubUcation  of  the 
letter  ?  Certainly  it  is  showing  it  to  a  third  person;  the  writer  cannot 
say  to  the  person  to  whom  the  letter  is  addressed,  "  I  have  shown  it 
to  you  and  to  no  one  else."  I  cannot,  therefore,  feel  any  doubt  that, 
if  the  writer  of  a  letter  shows  it  to  any  person  other  than  the  person 
to  whom  it  is  written,  he  publishes  it.  If  he  wishes  not  to  publish  it, 
he  must,  so  far  as  he  possibly  can,  keep  it  to  himself,  or  he  must  send 
it  himself  straight  to  the  person  to  whom  it  is  written.  There  was, 
therefore,  in  this  case  a  publication  to  the  type-writer. 

Then  arises  the  question  of  privilege,  and  that  is,  whether  the  occa- 
sion on  which  the  letter  was  published  was  a  privileged  occasion.  An 
occasion  is  privil^ed  when  the  person  who  makes  the  communication 
has  a  moral  duty  to  make  it  to  the  person  to  whom  he  does  make  it, 
and  the  person  who  receives  it  has  an  interest  in  hearing  it.  Both 
these  conditions  must  exist  in  order  that  the  occasion  may  be  privi- 
leged. An  ordinary  instance  of  a  privileged  occasion  is  in  the  giving 
a  character  of  a  servant.  It  is  not  the  legal  duty  of  the  master  to 
give  a  character  to  the  servant,  but  it  is  his  moral  duty  to  do  so;  and 
the  person  who  receives  the  character  has  an  interest  in  having  it. 
Therefore,  the  occasion  is  privileged,  because  the  one  person  has  a 
duty  and  the  other  has  an  interest.  The  privilege  exists  as  against 
the  person  who  is  libelled;  it  is  not  a  question  of  privilege  as  between 
the  person  who  makes  and  the  person  who  receives  the  communica- 
tion; the  privilege  is  as  against  the  person  who  is  Ubelled.  Can  the 
communication  of  the  libel  by  the  defendants  in  the  present  case  to 
the  type-writer  be  brought  within  the  rule  of  privilege  as  against  the 
plaintiffs  —  the  persons  libelled  ?  What  interest  had  the  type-writer 
in  hearing  or  seeing  the  communication  ?  Clearly,  she  had  none. 
Therefore,  the  case  does  not  fall  within  the  rule. 

Then  again,  as  to  the  publication  at  the  other  end  —  I  mean  when 
the  letter  was  delivered.  The  letter  was  not  directed  to  the  plaintiffs 
in  their  individual  capacity;  it  was  directed  to  a  firm  of  which  they 
were  members.  The  senders  of  the  letter  no  doubt  believed  that  it 
would  go  to  the  plaintiffs;  but  it  was  directed  to  a  firm.  When  the 
letter  arrived  it  was  opened  by  a  clerk  in  the  employment  of  the  plain- 
tiffs* firm,  and  was  seen  by  three  of  the  clerks  in  their  office.  If  the 
letter  had  been  directed  to  the  plaintiffs  in  their  private  capacity,  in 
all  probability  it  would  not  have  been  opened  by  a  clerk.  But  mer- 
cantile firms  and  large  tradesmen  generally  depute  some  clerk  to  open 
business  letters  addressed  to  them.  The  sender  of  the  letter  had  put 
it  out  of  his  own  control,  and  he  had  directed  it  in  such  a  manner  that 
it  might  possibly  be  opened  by  a  clerk  of  the  firm  to  which  it  was 


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CHAP.  VI J  STEVENS  V.  SAMPSON  761 

addressed.  I  agree  that  under  such  circumstances  there  was  a  publi- 
cation of  the  letter  by  the  sender  of  it,  and  in  this  case  also  the  occa- 
sion was  not  privileged  for  the  same  reasons  as  in  the  former  case. 
There  were,  therefore,  two  publications  of  the  letter,  and  neither  of 
them  was  privileged.  And,  there  being  no  privilege,  no  evidence  of 
express  malice  was  required;  the  pubUcation  of  itself  impUed  malice. 
I  think  the  learned  judge  was  misled.  I  do  not  think  that  the  necessi- 
ties or  the  luxuries  of  business  can  alter  the  law  of  England.  If  a 
merchant  wishes  to  write  a  letter  containing  defamatory  matter,  and 
to  keep  a  copy  of  the  letter,  he  had  better  make  the  copy  himself.  If 
a  company  have  deputed  a  person  to  write  a  letter  containing  libellous 
matter  on  their  behalf,  they  will  be  liable  for  his  acts.  He  ought  to 
write  such  a  letter  himself,  and  to  copy  it  himself,  and,  if  he  copies  it 
into  a  book,  he  ought  to  keep  the  book  in  his  own  custody.* 
I  think  there  ought  to  be  a  new  trial.  Order  far  new  trial. 


STEVENS  V.  SAMPSON 

In  the  Court  of  Appeal,  November  15, 1879. 

Reported  in  6  Exchequer  Divisum  Reports^  53. 

Claim  for  falsely  and  maUciously  printing  and  publishing  of  the 
plaintiff  certain  words  in  certain  newspapers.  The  libel  set  out  in  the 
claim  was  a  report,  published  by  the  defendant,  of  certain  proceedings 
in  a  plaint  of  Nettlefold  v.  Fulcher,  tried  at  the  Marylebone  county 
court,  and  brought  to  recover  damages  and  costs  sustained  by  Nettle- 
fold  in  setting  aside  certain  proceedings  instituted  by  Fulcher  against 
Nettlefold  to  recover  the  possession  of  certain  premises.  It  alleged 
that  at  the  coimty  court  the  defendant  in  the  present  action  appeared 
for  Nettlefold,  and  made  statements  regarding  the  conduct  of  the 

*  Bohlinger  v,  Gennania  Ins.  Co.,  100  Ark.  477;  Gambrill  v.  Schooley,  93  Md. 
48  Accord,  See  Central  R.  Co.  v,  Jones,  18  Ga.  App.  414.  But  the  dictation  of  a 
defamatory  letter  by  a  lawyer  to  his  clerk  and  the  copying  of  it  by  another  clerk  in 
the  regular  course  of  serving  his  clients,  although  a  publication,  is,  nevertheless, 
privil^ed.  Boxsius  t;.  Goblet,  [1894]  1 Q.  B.  842.  And  the  authority  of  Pullman  v. 
nill  is  greatly  weakened  by  Edmonson  v.  Birch,  [1907]  1  K.  B.  371,  which  treats  as 
privileged  the  dictation  of  a  defamatory  letter  by  a  company  through  one  of  its 
officers  to  a  stenographer,  and  Rofif  v.  British  Chemical  Co.,  [1918]  2  K.  B.  277 
Oetter  passed  through  the  hands  of  two  clerks  of  addressee).  See  to  the  same 
effect  Owen  v.  Ogilvie  Co.,  32  App.  Div.  465. 

Exchange  of  letters  by  mistctke  whereby  privileged  letter  goes  to  tvrong  person.  See 
Tompson  v,  Dashwood,  11  Q.  B.  D.  43;  Hebditch  v.  Mcllwaine,  [1894]  2  Q.  B. 
64,61. 

A  defamatory  statement  true  of  A.  butjpublished  concerning  B.,  by  mistake, 
will  support  an  action  by  B.  Shepheard  v,  Whitaker.  L.  R.  10  C.  P.  502;  Taylor  v, 
Hearst,  107  Cal.  262;  Griebel  v.  Rochester  Co.,  60  Hun,  319.  But  see,  contra^ 
Hanson  t^.  Globe  Co.  fSupra,  ^5  (Hohnes,  Morton,  and  Barker,  JJ.,  dissenting). 

Compare  Brett  v.  Watson,  20  W.  R.  723;  Fox  v.  Broderick,  14  Ir.  C.  L.  R.  453, 
459;  Loibl  v,  Breidenbach,  78  Wis.  49. 


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762  STEVENS  V.  SAMPSON  [CHAP.  VI. 

plaintiff  in  the  present  action,  who  was  a  debt  collector  and  employed 
by  Fulcher  as  agent  to  recover  possession  of  the  premises. 

Statement  of  defence:  That  the  words  alleged  to  have  been  pub- 
lished were  a  true  and  correct  accoimt  and  report  of  a  certain  trial  in  a 
court  of  justice  having  jurisdiction  in  that  behalf,  and  of  certain  words 
spoken  during  the  sitting  of  the  court  in  the'  course  of  the  trial,  and 
published  for  the  public  benefit,  and  without  maUce.    Issue  thereon. 

At  the  trial  before  Cockbum,  C.  J.,  at  the  Hilary  Sittings,  1879,  at 
Westminster,  it  was  proved  that  the  defendant,  who  was  a  solicitor, 
had  sent  the  report  set  out  in  the  claim  of  the  trial  of  Nettlefold  r. 
Fulcher,  before  the  Judge  of  the  Marylebone  county  court,  to  the  local 
newspapers.  Cockbum,  C.  J.,  left  two  questions  to  the  jury:  1.  Was 
the  report  a  fair  one?  2.  Was  it  sent  honestly,  or  with  a  desire  to 
injure  the  plaintiff  ?  The  jury  answered  these  questions:  1.  That  it 
was  in  substance  a  fair  report;  2.  That  it  was  sent  with  a  certain 
amount  of  malice;  and  found  a  verdict  for  the  plaintiff  with  40«. 
damages.  Cockbum,  C.  J.,  directed  judgment  to  be  entered  for  the 
plaintiff  for  that  amount. 

The  defendant  appealed  on  the  ground  that  the  judgment  entered 
upon  the  findings  of  the  jury  was  wrong. 

Lord  Coleridge,  C.  J.^  The  question  before  us  is  whether,  on  the 
findings  of  the  jury,  the  entry  of  the  judgment  for  the  plaintiff  is  right. 
I  am  of  opinion  that  it  was  rightly  entered  for  the  plaintiff.  The  prin- 
ciple which  governs  this  case  is  plain.  It  is  like  that  which  governs 
most  other  cases  of  privilege.  In  order,  in  cases  of  libel,  to  establish 
that  the  commimication  is  privileged,  two  elements  must  exist:  not 
only  must  the  occasion  create  the  privilege,  but  the  occasion  must  be 
made  use  of  bona  fide  and  without  malice;  if  either  of  these  is  absent, 
the  privilege  does  not  attach;  here  the  second  element  is  absent,  for 
bona  fides  is  wanting,  and  maUce  exists.  There  are  certain  cases  in 
which  the  privilege  is  absolute.  Words  spoken  in  the  course  of  a  legal 
proceeding  by  a  witness  or  by  counsel,  and  words  used  in  an  affidavit 
in  the  course  of  a  legal  proceeding,  are  absolutely  privil^ed.  It  is 
considered  advantageous  for  the  public  interests  that  such  persons 
should  not  in  any  way  be  fettered  in  their  statements.  This  is  the 
first  time  that  a  report  of  proceedings  in  a  court  of  justice  haa  been 
sought  to  be  brought  within  this  same  class  of  privUege.  I  am  not 
disposed  to  extend  the  bounds  of  privilege  beyond  the  principles  al-' 
ready  laid  down,  and  I  find  no  autiiority  for  its*extension. 

Judgment  affirmed.* 

^  The  concurring  opinions  of  Bramwell  and  Brett,  L.JJ.,  and  the  argument  for 
defendant  are  omitted. 

«  Salmon  v.  Isaac,  20  L.  T.  Rep.  886:  Lawyers  Pub.  Co.  v.  West  Pub.  Co.,  32 
App.  Div.  585;  Saunders  v.  Baxter,  6  Heisk.  369  Accord, 


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CHAP.  VI.]  CLARK  V.  MOLYNEUX  763 

CLARK  V.  MOLYNEUX 
In  the  Court  of  Appeal,  December  4, 1877. 
Reported  in  47  Law  Journal  Reports,  Common  Law,  230.^ 

The  action  was  for  slander  and  libel.  The  plaintiff,  a  clergyman  of 
the  Church  of  England,  had  been  formerly  in  the  army,  but  left  it  in 
the  year  1863;  and,  after  taking  his  d^ree  at  Cambridge,  was  or- 
dained by  the  Bishop  of  Exeter,  and  subsequently  became  curate  at 
Assington,  to  the  Rev.  H.  L.  Maud. 

In  March,  1876,  the  defendant,  the  Rev.  Canon  Molyneux,  the  Rec- 
tor of  Sudbury,  which  is  in  the  neighborhood  of  Assington,  when  call- 
ing on  a  Mr.  G.  Sevan,  a  banker,  with  whom  he  had  been  intimate  for 
twenty-four  years,  was  informed  by  Mr.  Sevan  that  the  plaintiff  was 
going  to  preach  one  of  a  course  of  Lenten  sermons  at  Newton  Church, 
in  the  neighborhood,  and  that  he  was  sure  that  if  Mr.  Charles  Smith, 
the  rector,  knew  what  sort  of  a  person  the  plaintiff  was,  he  would 
never  permit  him  to  preach  in  his  church.  Mr.  Sevan  then  desired 
the  defendant,  as  an  old  friend  of  Mr.  Smith's,  to  let  him  know  what 
the  plaintiff's  character  was.  In  answer  to  the  defendant's  inquiry  as 
to  what  was  the  nature  of  the  chaises  against  the  plaintiff,  Mr.  Sevan 
said  that  he  had  been  obliged  to  leave  the  army  through  cheating  with 
cards,  had  lived  an  irregular  life  at  Cambridge,  had  been  guilty  of 
gross  immoraUty  when  curate  at  Horringer,  and  had  boasted  of  it. 
The  defendant,  placing  implicit  reliance  on  Mr.  Sevan,  and  thinking 
that  it  was. his  duty  to  acquaint  Mr.  Charles  Smith  with  the  matter, 
at  once  rode  to  his  house,  and,  finding  that  he  was  ill  in  bed,  com- 
municated his  information  to  the  Rev.  H.  Smith,  his  son,  who  was  in 
the  house. 

At  the  end  of  the  same  month  the  defendant  consulted  the  Rev.  J.  C. 
Martyn,  his  rural  dean,  as  to  whether  he  should  not  speak  to  Mr. 
Maud,  the  plaintiff's  rector.  Mr.  Martyn  said  he  thought  the  de- 
fendant ou^t  to  do  so.  As  Mr.  Maud  was  abroad,  the  defendant 
spoke  to  his  soUcitor  on  the  subject;  and  on  Mr.  Maud's  return  he 
received  a  letter  from  him,  asking  for  information.  The  defendant 
wrote  an  answer  detailing  the  facts  substantially  as  communicated  to 
him  by  Mr.  Sevan;  but  some  of  the  expressions  in  the  letter  were 
stronger  than  those  used  by  Mr.  Sevan.  "  Profligate  "  was  used  in- 
stead of  "  irregular,"  and  "  expelled  the  army,"  instead  of  "  obliged  to 
leave  the  army." 

The  defendant  also  consulted  Mr.  Green,  his  curate,  who  was  an- 
noimced  to  preach  one  of  the  same  course  of  sermons  as  the  plaintiff. 
Mr.  Green  had  been  with  the  plaintiff  for  twenty  years,  and  was  con- 
sulted by  him  on  every  ecclesiastical  matter  that  came  before  him. 

1  3  Q.  B.  Div.  237,  s.  c. 


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764  CLARK  V.  MOLYNEXJX  [CHAP,  VI. 

The  communications  made  to  Mr.  Green,  Mr.  H.  Smith  and  Mr, 
Martjm  were  the  slanders  complained  of,  and  the  letter  to  Mr.  Maud 
was  the  libel. 

The  defendant  relied  solely  on  the  privil^e  of  the  occasions  and  the 
bona  fides  of  his  statements. 

The  action  was  tried  before  Baron  Huddleston  and  a  special  jury  at 
Bury  St.  Edmunds,  at  the  Summer  Assizes,  1876. 

The  learned  judge  ruled  that  all  the  occasions  were  privileged,  and 
the  case  went  to  the  jury  on  the  question  of  express  malice. 

In  the  course  of  his  summing  up  the  learned  judge  said:  **  Now  in 
law  if  a  man  sajrs  what  is  not  true,  or  writes  what  is  libellous,  or  sajrs 
what  is  slanderous  of  another,  it  is  presumed  that  it  is  maUcious.  But 
where  the  occasion  is  privileged,  then  you  require  something  more,  and 
you  require  what  the  law  calls  express  malice.  I  must  tell  you  what 
express  maUce  means.'' 

And  again,  at  the  close  of  the  summing  up:  — 

**  What  you  have  to  consider,  then,  is  really  and  substantially  this 
—  assuming  that  these  occasions  were  privileged,  do  you  think  that 
the  defendant  made  those  statements  and  wrote  that  letter  bona  fide, 
and  in  the  honest  belief  that  they  were  true  —  not  merely  that  he  be- 
Ueved  them  himself,  but  honestly  believed  them,  which  means  that  he 
had  good  grounds  for  believing  them  to  be  true.  I  do  not  mean  to  say 
pig-headedly,  pertinaciously  and  obstinately  perhaps  persuaded  him- 
self  of  the  matter  for  which  he  had  no  reasonable  grounds,  and  of 
which  you  twelve  gentlemen  would  say  they  were  perfectly  imjustified. 
If  you  think  that  under  these  circumstances  Mr.  Molyneux  has  taken 
himself  out  of  the  privilege  in  consequence  of  the  statements  not  being 
•  made  bona  fide  and  in  the  honest  belief  they  were  true,  and  that  there- 
fore there  is  what  in  law  is  called  malice  in  fact,  which  I  have  explained 
to  you,  then  your  verdict  will  be  for  the  plaintiff."  ^ 

The  jury  found  a  verdict  for  the  plaintiff,  with  £200  damages. 

These  passages  and  the  general  tenor  of  the  summing  up,  which  was 
to  the  same  effect,  constituted  the  misdirection  complained  of. 

The  defendant  moved  for  a  new  trial  in  the  Queen's  Bench  Division, 
on  the  ground  of  misdirection,  and  that  the  verdict  was  against  evi- 
dence; but  the  court  refused  the  rule.    The  defendant  appealed. 

Brett,  L.  J.  I  am  of  the  same  opinion;  I  think  that  there  was, 
what  amounts  in  law  to  a  misdirection;  that  the  verdict  was  against 
the  evidence;  and,  further,  that  there  was  no  evidence  to  go  to  the 
jury. 

With  regard  to  the  alleged  misdirection,  I  do  not  think  that  we  differ 
from  the  Queen's  Bench  Division  in  our  view  of  the  law,  but  I  think 
that,  whatever  the  idea  Baron  Huddleston  intended  to  convey  to  the 
jury  in  his  careful,  elaborate,  and,  if  I  may  say  so,  able  summing  up, 

^  The  charge  of  the  learned  baron  is  abridged;  the  arguments  of  counsel  and  the 
concurring  opinions  of  Bramwell  and  Cotton,  L.JJ.,  are  omitted. 


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CHAP.  VJ.]  CLARK  V,  MOLYNEUX  765 

really  was,  it  may  have  materially  misled  them,  and  if  it  may,  that  is 
in  law  a  misdirection. 

The  summing  up  is  f oimded  on  the  assumption  that  the  occasions  of 
the  alleged  slanders  and  Ubel  were  privileged,  and  that  the  defendant 
was  therefore  excused  in  that  which  would  otherwise  have  been  action- 
able, if  he  used  the  occasions  fairly.  Now  it  is  right  before  criticising 
the  summing  up  of  the  learned  judge  to  state,  as  clearly  as  one  can, 
what  the  law  relating  to  excuse  by  reason  of  privilege  in  cases  of  libel 
and  slander  really  is.  It  is,  I  apprehend,  tjiis:  When  a  defendant 
claims  that  the  occasion  of  a  Ubel  or  slander  is  privileged,  and  when 
it  is  held  by  the  judge,  whose  duty  it  is  to  decide  the  matter,  that  the 
occasion  is  privileged,  the  question  arises,  —  imder  what  conditions 
can  the  defendant  take  advantage  of  the  privilege  ?  If  the  occasion  is 
privileged,  it  is  so  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  mo- 
tive, he  uses  it,  not  for  the  reason  which  makes  it  privileged,  but  for 
another.  One,  but  by  no  means  the  only,  indirect  motive  which  can  be 
alleged,  is  the  gratification  of  some  anger  or  malice  of  his  own.  By 
malice  here  I  mean,  not  a  pleading  expression,  but  actual  malice,  or 
what  is  termed  maUce  in  fact,  t.  e,,  a  wrong  feeling  in  the  defendwit's 
mind.  If  this  malice  be  the  indirect  and  wrong  motive  suggested  in 
a  particular  case,  there  are  certain  tests  by  which  its  existence  may  be 
investigated.  Two  such  tests  are  these:  If  a  man  is  proved  to  have 
stated  what  he  knew  to  be  false,  no  one  inquires  further,  everybody 
assmnes  thenceforth  that  he  was  malicious,  that  he  did  so  wrong  a 
thing  from  some  wrong  motive.  Again,  if  it  be  proted  that  out  of 
anger  or  from  some  other  wrong  motive  the  defendant  has  stated 
something  as  a  truth  or  as  tru6,  without  knowing  or  inquiring  whether 
it  was  true  or  not,  therefore  reckless,  by  reason  of  his  anger  or  other 
motive,  whether  it  is  true  or  not,  the  jury  may  infer,  and  generally  will 
infer,  tiiat  he  used  the  occasion  for  the  gratification  of  his  anger  or 
malice,  or  other  indirect  motive,  and  not  for  the  reason  or  motive 
which  occasions  or  justifies  the  privil^e. 

These  tests  have  been  suggested  before,  and  they  were  approved  by 
the  whole  Court  of  Common  Pleas  in  a  case  tried  before  me  at  Leeds, 
and  I  apprehend  they  are  correct. 

That  being  so,  I  think  that  Baron  Huddleston  did  not  follow  these 
rules  and  tests,  but  others.  Take  his  summing  up  as  a  whole,  as  I 
think  we  ought,  he  left  the  case  as  if  the  burden  of  proving  there  was 
no  malice  lay  on  the  defendant,  but  if  the  occasion  be  privileged,  the 
onus  of  showing  maUce  is  at  once  thrown  on  the  plaintiff.  Further,  in 
order  to  guide  the  jury  as  to  what  malice  was,  he  read  the  passage  in 
Bromage  t;.  Prosser;  what  he  read  there  is  not  a  definition  of  malice 
in  fact,  at  all,  but  of  that  malice  which  is  a  technical  term  in  certain 
pleadings,  where  it  simply  means  "  wilfully."    It  has  been  held,  that 


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766  CARPENTER  V.  BAILEY  [CHAP.  VI. 

in  such  pleadings  the  absence  of  the  word  maliciously  is  immaterial  if 
the  word  wilfully  is  present  —  because  they  are  in  such  pleadings 
synonymous  terms.  Then,  I  think  the  passage  at  the  end  of  the  sum- 
ming up  is  really  a  recapitulation  of  the  sense  of  the  whole  summing 
up,  and  might  lead  the  jury  to  beUeve  that,  although  they  were  of 
opinion  that  the  defendant  did  beUeve  what  he  stated,  he  would  not 
be  protected  unless  his  beUef  was  a  reasonable  one,  as  distinguished 
from  a  pig-headed,  obstinate,  and  insensible  one.  But  the  real  ques- 
tion, as  I  have  stated,  is,  whether  the  defendant  did,  in  fact,  believe 
his  statement,^  or  whether  being  angry  or  moved  by  some  other  in- 
direct motive,  did  not  know,  and  did  not  care,  whether  his  statement 
was  true  or  false.  Questions  of  pig-headedness  and  obstinacy  may  be 
tests  as  to  whether  a  man  really  did  honestly  believe  or  not,  but  Baron 
Huddlestbn  left  them  as  if  they  were  of  the  essence  of  the  definition  of 
maUce. 

The  direction  was  therefore  wrong  if  the  occasions  were  privileged. 
That  they  were  I  have  a  very  strong  opinion.  The  only  occasion  dis- 
puted is  that  of  the  commimication  to  Mr.  Green  the  curate.  I  am 
clearly  of  opinion  that  that  was  privileged.  I  think  that  where  a 
clergyman  consults  his  curate  as  to  his  conduct  in  an  ecclesiastical 
matter,  the  occasion  is  a  privileged  one. 

As  to  the  other  points,  I  think  that  at  least  the  verdict  was  against 
the  evidence.  But  I  think  more,  I  think  there  was  no  evidence  fit  to 
be  submitted  to  a  jury,  and,  therefore,  if  on  a  new  trial  the  facts  re- 
main the  same,  the  judge's  duty  will  be  to  direct  the  jury  that  there  is 
no  case.  In  this  matter,  therefore,  there  has  been  a  miscarriage.  But 
I  think  that  the  case  is  not  one  in  which  to  apply  Order  XL.,  rule  10, 
and  enter  the  verdict  for  the  defendant,  as  it  does  not  follow  that  on  a 
new  trial  further  evidence  may  not  be  forthcoming. 

Appeal  allowed. 


CARPENTER  v.  BAILEY 

SuPREiiE  Court,  New  Hampshire,  December,  1873. 

Reported  in  53  New  Hampshire  Reporiiy  690. 

This  is  an  action  on  the  case  for  a  libel,  by  J.  N.  Carpenter  against 
J.  H.  Bailey,  the  writ  bearing  date  September  21, 1869.*  The  declara- 
tion alleges,  that,  on  April  20, 1869,  the  plaintiff  was  a  paymaster  in 
the  navy,  stationed  as  purchasing  agent  at  Portsmouth;  that,  by  the 
rules  of  the  navy  department,  he  was  entitled  to  remain  on  that  station 
three  years;  and  that  the  defendant,  contriving,  &c.,  published  of  him 
the  following  Ubel :  "  To  the  Honorable  the  Senators  and  Members  of 

1  Barry  t>.  McCollom,  81  Conn.  293;  Bays  v.  Hunt,  60  la.  251,  255-6;  Hem- 
mens  v.  Nelson,  138  N.  Y.  517;  Haft  v.  First  Bank,  19  App.  Div.  423  Accord, 
>  The  case  is  matenally  abridged. 


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CHAP.  VI.]  CARPENTER  V.  BAILEY  767 

the  House  of  Representatives  in  Congress  from  New  Hampshire:  The 
undersigned,  after  much  patience  has  been  exhausted,  beg  to  remon- 
strate against  the  further  continuance  at  this  station  of  Paymaster 
J.  N.  Carpenter  as  purchasing  agent.  In  all  our  struggles,  Pajonaster 
Carpenter  has  always  voted  against  us,  carrying  the  straight  Demo- 
cratic ticket,  throwing  his  patronage  adversely  to  the  friends  of  Gen- 
eral Grant,  and  always  filling  the  requirements  of  a  tool  sent  here  by 
ex-Secretary  Welles  to  carry  out  the  interests  of  Andrew  Johnson. 
May  we  hope  for  relief  from  such  a  burden  ?  Let  the  rebel  sym- 
pathizer be  exchanged  for  a  man  who  will  have  office  hours  of  a  con- 
venient kind,  and  will  be  found  there  at  least  once  a  day  to  attend  to 
those  having  business  there,  and  officers  and  citizens  will  alike  be 
grateful.  Portsmouth,  N.  H.,  April  20, 1869.  E.  G.  Peirce,  Jr.,  Chas. 
Robinson,  Aaron  Yoimg,  Daniel  J.  Vaughan,  E.  A.  Stevens,  W.  H. 
Hackett,  John  H.  Bailey,  Paine  Durkee." 

The  defendant  pleaded  in  substance  that  he  was  informed  and 
believed  that  the  plaintiff  had  done  the  things  charged  in  the  petition 
and  that  he  believed  that ''  the  public  good,  and  the  welfare  of  said 
administration  of  General  Grant,  required  that  the  said  plaintiff 
should  be  removed  from  said  office  at  said  station,  and  that  a  suitable 
officer  should  be  put  there  in  his  stead,  and  that  the  senators  and 
members  of  the  House  of  Representatives  in  Congress  from  the  State 
of  New  Hampshire  were  the  proper  persons  and  officers  to  be  peti- 
tioned in  order  to  procure  the  removal  of  the  said  plaintiff  from  said 
office  at  said  naval  station,  the  defendant,  in  good  faith,  and  without 
maUce  or  ill-will  to  the  said  plaintiff,  but  in  order  to  procure  the 
removal  of  the  plaintiff  for  the  causes  aforesaid  from  the  said  office, 
signed  said  petition  to  said  senators  and  representatives  containing 
said  supposed  libellous  words  in  the  plaintiff's  declaration  mentioned^ 
as  he  lawfully  might  have  done,  for  the  cause  aforesaid,  and  this  he  is 
ready  to  verify."    Wherefore,  Ac. 

To  this  plea  the  plaintiff  demurred  generally. 

Sargent,  C.  J.  If  the  defendant  cannot  justify  by  showing  the 
truth  of  the  matter  charged,  he  may  excuse  the  publication  by  showing 
that  it  was  made  upon  a  lawful  occasion,  upon  probable  cause,  and 
from  good  motives. 

It  is  also  said  that  matter  in  excuse  in  a  prosecution  for  libel  is 
where  the  defendant,  upon  a  lawful  occasion,  proceeded  with  good 
motives  upon  probable  grounds,  —  that  is,  upon  reasons  that  were  ap- 
parently good,  but  upon  a  supposition  which  turns  out  to  be  un- 
foimded.  This  is  a  very  different  thing  from  showing  the  actual  truth 
of  the  allegations:  where  tha^t  is  proved  with  a  proper  occasion,  it  is  a 
justification  without  regard  to  motives;  but  where  the  statements 
made  prove  false,  the  defendant  needs  to  show  not  only  a  proper  occa- 
sion, but  a  good  motive  also,  —  for,  if  Uie  matter  be  untrue  and  the 
motive  bad,  how  could  the  end  be  justified  or  even  excused  ?    But 


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768  CARPENTER  V.  BAILEY  [CHAP.  VI, 

when  the  occasion  is  proper,  one  may  be  excused  for  stating  what 
proves  to  be  untrue,  if  he  had  probable  cause  to  believe  it  true,  and 
spoke  it  from  good  motives;  see  authorities„9  N.  H.  45. 

So,  in  Pahner  v.  Concord,  48  N.  H.  217,  it  is  said,  by  Smith,  J.,  that 
most  of  what  are  called  "  privileged  commimications  "  are  condition- 
ally, not  absolutely,  privileged.  The  question  is  one  of  good  faith,  or 
motive,  and  can  be  settled  only  by  a  jury.  A  court  cannot  rule  that  a 
conmiimication  is  privileged,  without  assuming  the  conditions  on 
which  it  is  held  to  be  privileged,  namely,  that  it  was  made  in  good 
faith,  for  a  justifiable  purpose,  and  with  a  belief,  founded  on  reason- 
able grounds,  of  its  truth;  —  and  see  cases  cited. 

In  the  case  before  us,  the  occasion  would  be  a  lawful  one,  provided 
the  motive  was  good,  and  there  was  probable  cause.  And  the  question 
is,  whether  the  mere  fact,  that  the  defendant  had  been  informed  and 
beUeved  that  a  fact  was  so,  is  equivalent  to  having  probable  cause  to 
believe  it  to  be  so.  And  we  think  it  could  not  be  assumed  that  it  was 
so.  A  person  might  be  informed  of  a  fact  by  one  in  whom  he  might, 
for  some  special  reason,  have  confidence,  but  to  whom  no  one  else 
would  give  the  slightest  credence;  and  a  jury  would  readily  find  that 
a  beUef  in  that  case  was  founded  upon  information  which  would  not 
amount  to  probable  cause  for  the  belief  of  any  man  of  ordinary  capac- 
ity. The  question  for  the  jury  would  be,  not  whether  the  defendant 
believed  it,  but  had  he  probable  cause  to  believe  it  ?  There  might  be 
belief  without  probable  cause  for  it;  and  hence  it  would  not  be  suffi- 
cient to  allege  merely  information  and  belief,  because  that  might  not, 
in  a  given  case,  amount  to  probable  cause.  The  fourth  plea  is  sub- 
stantially correct  in  form,  and  goes  as  far  as  the  rule  thus  laid  down 
will  warrant;  and  we  think  this  third  plea  is  insufficient. 

Demurrer  sustained.^ 

1  Hanson  v.  West,  125  Ey.  457  Uemble);  Toothaker  v.  Conant,  91  Me.  438; 
Brifiws  V,  Garrett,  111  Pa.  St.  404;  Conroy  t>.  Pittsburgh  Times,  139  Pa.  St.  334: 
Muldeiig  V,  Wilkes  Barre  Times,  215  Pa.  St.  470;  Egan  v.  Dotson,  36  S.  D.  459 
Accord, 

See  also,  Douglass  v.  Daisley,  114  Fed.  628. 

Compare  Glisson  v.  Binpo,  139  La.  23;  Estelle  t;.  Daily  News  Pub.  Co.,  99  Neb. 
397;  Wiese  v.  Riley,  146Wis.  640. 

Petition  or  memorial  for  removal  of  public  officer  prunleged,  Blake 't;.  Pilfold,  1 
M.  &  Rob.  198;  Woodward  v.  Lander,  6  Car.  &  P.  548;  James  v.  Boston,  2  Car.  & 
K.  4;  Spackman  v.  Gibney,  Odgere.  Lib.  &  SI.  (5th  ed.)  278;  Beatson  v.  Skene,  5 
H.  &  N.  838;  Harrison  v.  Bush,  5  £.  &  B.  344;  Hart  v.  Von  Gumpach.  L.  R.  4  P. 
C.  439;  Stanton  v,  Andrews,  6  Up.  Can.  Q.  B.  O.  S.  211;  Corbett  v.  Jackson,  1  Up. 
Can.  Q.  B.  128;  Rogers  v.  Spalding,  1  Up.  Can.  Q.  B.  258;  Mclntire  v,  McBean, 
13  Up.  Can.  Q.  B.  534;  Bell  v.  Parke,  10  Ir.  C.  L.  R.  279  (semble);  White  v. 
Nichols,  3  How.  266;  Vogel  v.  Gruaz,  110  U.  S.  311;  Pearce  v.  Brower,  72  Ga.  243; 
Young  V.  Richardson,  4  ill.  App.  364;  Rainbow  v.  Benson^l  la.  301;  Rabb  v. 
Trevelyan,  122  La.  174;  Bodwell  t>.  Osgood,  3  Pick.  379;  Wieman  v,  Mabee,  45 
Mich.  484;  Greenwood  v.  Cobbey,  26  Neb.  449;  State  v.  Bumham,  9  N.  H.  34; 
Thorn  v.  Blanchard,  5  Johns.  608;  Vanderzee  v.  McGregor,  12  Wend.  545;  How- 
ard V,  Thompson,  21  Wend.  319;  Halstead  v.  Nelson,  24  Hun,  395;  Decker  v, 
Gaylord,  35  Hun,  584;  Woods  v,  Wiman,  122  N.  Y.  445,  47  Hun,  362;  Cook  v. 
Hill,  3  Sandf.  341;  Van  Wyck  v.  Aspinwall,  17  N.  Y.  190:  Harwood  v.  Keech.  6 
Th.  &  C.  665;  Lojgan  v,  Hodges,  146  N.  C.  38;  Gray  v.  Pentland,  2  S.  &  R.  23; 


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CHAP.  VI.]  CAMPBELL  V.  SPOTTISWOODE  769 

CAMPBELL  V.  SPOTTISWOODE 

Is  THE  Queen's  Bench,  April  18,  1863. 

Reported  in  3  Best  &  Smith,  769. 

CocKBURN,  C.  J.i  I  am  of  opinion  that  there  ought  to  be  no  rule.  The 
article  on  which  this  action  is  brought  is  undoubtedly  libellous.  It  imputes  to 
the  plaintiff  that,  in  putting  forth  to  the  public  the  sacred  cause  of  the  dis- 
semination of  religious  truth  among  the  heathen,  he  was  acting  as  an  impostor, 
and  that  his  purpose  was  to  put  money  into  his  own  pocket  by  obtaining  con- 
tributions to  his  newspaper.  The  article  also  charges  that,  in  furtherance  of 
that  base  and  sordid  purpose,  he  published  in  his  newspaper  the  name  of  a 
fictitious  person  as  the  authority  for  his  statements,  and  still  further  that,  with 
a  view  to  induce  persons  to  contribute  towards  his  professed  cause,  he  pub- 
lished a  fictitious  subscription  list.  These  are  serious  imputations  upon  the 
plaintiff's  moral  as  well  as  public  character. 

It  is  said,  on  behalf  of  the  defendant,  that,  as  the  plaintiff  addressed  himself 
to  the  public  in  a  matter,  not  only  of  public,  but  of  universal  interest,  his  con- 
duct in  that  matter  was  open  to  public  criticism,  and  I  entirely  concur  in  that 
proposition.  If  the  proposed  scheme  were  defective,  or  utterly  disproportion- 
ate to  the  result  aimed  at,  it  might  be  assailed  with  hostile  critisicm.  But  then 
a  line  must  be  drawn  between  criticism  upon  public  conduct  and  the  imputa- 
tion of  motives  by  which  that  conduct  may  be  supposed  to  be  actuated;  one 
man  has  no  right  to  impute  to  another,  whose  conduct  may  be  fairiy  open  to 
ridicule  or  disapprobation,  base,  sordid,  and  wicked  motives,  unless  there  is  so 
much  ground  for  the  imputation  that  a  jury  shall  find,  not  only  that  he  had  an 
honest  belief  in  the  truth  of  his  statements,  but  that  his  belief  was  not  without 
foundation. 

In  the  present  case,  the  charges  made  against  the  plaintiff  were  unques- 
tionably without  foundation.  It  may  be  that,  in  addition  to  the  motive  of  re- 
ligious zeal,  the  plaintiff  was  not  wholly  insensible  to  the  collateral  object  of 
promoting  the  circulation  of  his  newspaper,  but  there  was  no  evidence  that  he 
had  resorted  to  false  devices  to  induce  persons  to  contribute  to  his  scheme. 
That  being  so,  Mr.  BoviU  is  obliged  to  say  that,  because  the  writer  of  this 
article  had  a  bona  fide  belief  that  the  statements  he  made  were  true,  he  was 
privileged.  I  cannot  assent  to  that  doctrine.  It  was  competent  to  the  writer 
to  have  attacked  the  plaintiff's  scheme ;  and  perhaps  he  might  have  suggested, 
that  the  effect  of  the  subscriptions  which  the  plaintiff  was  asking  the  public 
to  contribute  would  be  only  to  put  money  into  his  pocket.  But  to  say  that  he 
was  actuated  only  by  the  desire  of  putting  money  into  his  pocket,  and  that  he 
resorted  to  fraudulent  expedients  for  that  purpose,  is  charging  him  with  dis- 
honesty: and  that  is  going  further  than  the  law  allows. 

Kent  V.  Bongartz,  15  R.  1. 72;  Reid  v,  Delorme,  2  Brev.  76;  Harris  v.  Huntington, 
2  Tyler,  129  Accord. 

But  not  absolutely  privileged,  where  the  proceeding  ib  notnididal.  Dickson  v, 
Wilton,  1  F.  &  F.  419;  Proctor  v.  Webster,  16  Q.  B.  D.  112;  Woods  v.  Wiman,  122 
N.  Y.  445;  Morah  v.  Steele,  157  App.  Div.  109;  Fulton  v.  Ingalls,  165  App.  Div.  323. 

Compare  McKee  v,  Hughes,  133  Tenn.  455  (petition  to  revoke  merchant's 
license). 

^  The  statement  of  the  case,  the  arsuments  of  counsel,  the  judnnent  of  Mellor, 
J.,  and  portions  of  the  judgments  of  Crompton  and  Blackburn,  JJ.,  are  omitted. 


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770  CAMPBELL  V.  SPOTTISWOODE  [CHAP,  VI. 

It  is  said  that  it  is  for  the  interests  of  society  that  the  public  conduct  of 
men  should  be  criticised  without  any  other  limit  than  that  the  writer  should 
have  an  honest  belief  that  what  he  writes  is  true.  But  it  seems  to  me  that  the 
public  have  an  equal  interest  in  the  maintenance  of  the  public  character  of 
public  men;  and  public  affairs  could  not  be  conducted  by  men  of  honor  with  a 
view  to  the  welfare  of  the  country,  if  we  were  to  sanction  attacks  upon  them, 
destructive  of  their  honor  and  character,  and  made  without  any  foundation.  I 
think  t^e  fair  position  in  which  the  law  may  be  settled  is  this:  that  where  the 
public  conduct  of  a  public  man  is  open  to  animadversion,  and  the  writer  who  is 
commenting  upon  it  makes  imputations  on  his  motives  which  arise  fairly  and 
legitimately  out  of  his  conduct  so  that  a  jury  shall  say  that  the  criticism  was 
not  only  honest,  but  also  well  founded,  an  action  is  not  maintainable.^  But  it 
is  not  because  a  public  writer  fancies  that  the  conduct  of  a  public  man  is  open 
to  the  suspicion  of  dishonesty,  he  is  therefore  justified  in  assailing  his  character 
as  dishonest.^ 

The  cases  cited  do  not  warrant  us  in  going  that  length.  In  Paris  v.  Levy, 
2  F.  <fe  F.  71,  there  may  have  been  an  honest  and  well-founded  belief  that  the 
man  who  published  the  handbill  which  was  commented  upon  could  only  have 
had  a  bad  motive  in  publishing  it,  and  if  the  jury  were  of  that  opinion,  the 
writer  who  attacked  him  in  the  public  press  would  be  protected.  We  cannot 
go  farther  than  that. 

Crompton,  J.  I  am  of  the  same  opinion.  .  .  .  The  first  question  is, 
Aether  the  article  on  which  this  action  is  brought  is  a  libel  or  no  libel,  —  not 
whether  it  is  privileged  or  not.  It  is  no  libel,  if  it  is  within  the  range  of  fair 
comment,  that  is,  if  a  person  might  fairly  and  bona  fide  write  the  article;  otiier- 
wise  it  is.  It  is  said  that  there  is  a  privilege,  not  to  writers  in  newspapers  only 
but  to  the  public  in  general,  to  comment  on  the  public  acts  of  public  men,  pro- 
vided the  writer  believes  that  what  he  writes  is  true;  in  other  words,  that  this 
belongs  to  the  class  of  privileged  communications,  in  which  the  malice  of  the 
writer  becomes  a  question  for  the  jury;  that  is,  where,  from  the  particular  cir- 
cumstances or  position  in  which  a  person  is  placed,  there  is  a  legal  or  social 
duty  in  the  nature  of  a  private  or  peculiar  ri^t,  as  opposed  to  the  rights  pos- 
sessed by  the  community  at  large,  to  assert  what  he  believes.  In  these  cases 
of  privilege  there  is  an  exemption  from  legal  liability  in  the  absence  of  malice; 
and  it  is  necessary  to  prove  actual  malice.  But  there  is  no  such  privilege  here. 
It  is  the  right  of  all  the  Queen's  subjects  to  discuss  public  matters;  but  no  per- 
son can  have  a  right  on  that  ground  to  publish  what  is  defamatory  merely  be- 
cause he  believes  it  to  be  true.  If  this  were  so,  a  public  man  might  have  base 
motives  imputed  to  him  without  having  an  opportunity  of  righting  himself. 

>  Hibbs  V.  Wilkinson,  1  F.  A  F.  608;  Tumbull  v.  Bird,  2  F.  A  F.  508;  Hunter  v, 
Sharpe,  4  F.  &  F.  983;  Hunt  v.  Star  Co.,  [1908]  2  K.  B.  309;  Walker  v.  Hodgson, 
[19091  1  K.  B.  239,  253;  De  Mestre  v.  Syme,  9  Vict.  L.  R.  (L)  10;  Davis  v.  Dun- 
can, L.  R.  9  C.  P.  396;  Queen  v.  Garden,  5  Q.  B.  D.  1. 8;  Crane  v.  Waters,  10  Fed. 
619;  Kinyon  v.  Pahner,  18  la.  377;  Bradford  v,  Clark,  90  Me.  298;  People  v, 
Glassman,  12  Utah,  238  Accord. 

«  Stuart  V.  LoveU,  2  Stark.  93;  Macleod  v.  Wakley,  3  Car.  &  P.  311;  Green  v. 
Chapman,  4  BinR.  N.  C.  92;  Parmiter  w.  Coupland,  6  M.  &  W.  105:  Whistler  v, 
Ruskin,  Odgers,  Lib.  &  SI.,  (5th  ed.)  196;  Wilson  v.  Reed,  2  F.  &  F.  149:  Morrison 
V.  Belcher,  3  F.  A  F.  614;  Hedley  v.  Barlow,  4  F.  &  F.  224;  Risk  Allah  Bey  v. 
Whitehurst,  18  L.  T.  Rep.  615;  Joynt  v.  Cycle  Co.,  [1904]  2  K.  B.  292;  Massie  v. 
Toronto  Co.,  11  Ont.  362;  Burt  v.  Advertiser  Co.,  154  Mass.  238:  Cooper  v.  Stone, 
24  Wend.  434;  Reade  ».  Sweetzer,  6  Abb.  Pr.  n.  s.  9,  n.;  UUrich  v,  N.  Y.  Co.,  23 
Misc.  168  Accord, 


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CHAP.  VI.]  CAMPBELL  V.  SPOTTISWOODE  771 

Therefore  it  is  necessary  to  confine  privilege,  as  the  law  has  always  confined  it, 
to  cases  of  real  necessity  or  duty,  as  that  of  a  master  giving  a  servant  a  char- 
acter, or  of  a  person  who  had  bcMsn  robbed  charging  another  with  robbing  him. 
Though  the  word  "  privilege  "  is  used  loosely  in  some  of  the  cases  as  applied 
to  the  right  which  every  person  has  to  conmient  on  public  matters,  I  think  that 
in  all  t^e  cases  cited  the  real  question  was  whether  the  allied  libel  was  a  fair 
comment  such  as  every  person  might  make  upon  a  public  matter,  and  if  not, 
there  was  no  privilege. 

Blackburn,  J.  I  also  think  that  the  law  governing  this  case  is  so  clearly 
settled  t^at  we  ought  not  to  grant  a  rule.  It  is  important  to  bear  in  mind  that 
the  question  is,  not  whether  the  publication  is  privileged,  but  whether  it  is  a 
libel.  The  word  "  privilege  "  is  often  used  loosely,  and  in  a  popular  sense, 
when  applied  to  matters  which  are  not,  properly  speaking,  privileged.  But, 
for  the  present  purpose,  the  meaning  of  the  word  is  that  a  person  stands  in 
such  a  relation  to  t^e  facts  of  the  case  that  he  is  justified  in  saying  or  writing 
what  would  be  slanderous  or  libellous  in  any  one  else.  For  instance,  a  master 
giving  a  character  of  a  servant  stands  in  a  privileged  relation;  and  the  cases 
of  a  memorial  to  the  Lord  Chancellor  or  t^e  Home  Secretary  on  the  conduct 
of  a  justice  of  t^e  peace,  Harrison  v.  Bush,  and  of  a  statement  to  a  public  func- 
tionary, reflecting  upon  some  public  officer,  Beatson  v,  Skene,  5  H.  &  N.  538, 
rank  themselves  under  that  class.  In  these  cases  no  action  lies  unless  there  is 
proof  of  express  malice.  If  it  could  be  shown  that  the  editor  or  publisher  of  a 
newspaper  stands  in  a  privileged  position,  it  would  be  necessary  to  prove 
actual  malice.  But  no  authority  has  been  cited  for  that  proposition;  ^  and  I 
take  it  to  be  certain  that  he  has  only  the  general  right  which  belongs  to  the 
public  to  comment  upon  public  matters,  for  example,  the  acts  of  a  minister  of 
state;  or,  according  to  modem  authorities  somewhat  extending  the  doctrine, 
where  a  person  has  done  or  published  anything  which  may  fairly  be  said  to  in- 
vite comment,  as  in  the  case  of  a  handbill  or  advertisement;  Paris  v.  Levy,  2 
F.  &  F.  71.  In  such  cases  every  one  has  a  right  to  make  fair  and  proper  com- 
ment; and,  so  long  as  it  is  within  that  limit,  it  is  no  libel. 

The  question  of  libel  or  no  libel,  at  least  since  Fox's  Act  (32  G.  3,  c.  60),  is 
for  the  jury;  and  in  the  present  case,  as  the  article  published  by  the  defendant 
obviously  imputed  base  and  sordid  motives  to  the  plaintiff,  that  question  de- 
pended upon  another,  —  whether  the  article  exceeded  the  limits  of  a  fair  and 
proper  comment  on  the  plaintiff's  prospectus;  and  this  last  question  was 
therefore  rightly  left  to  the  jury.  Then  Mr.  Bovill  asked  that  a  further  ques- 
tion should  be  left  to  them,  viz.,  whether  the  writer  of  the  article  honestly  be- 
lieved that  it  was  true;  and  the  jury  have  found  that  he  did.  We  have  to  say 
whether  that  prevents  an  action  being  maintained.  I  think  not.  Bona  fide 
belief  in  the  truth  of  what  is  written  is  no  defence  to  an  action;  it  may  miti- 
gate the  amount,  but  it  cannot  disentitle  the  plaintiff  to  damages. 

Rule  refused.* 

1  See  contra,  Williams  v.  Spowers,  8  Vict.  L.  R.  (Law)  82. 

<  Honest  belief  is  no  defense  apart  from  privilege.  Van  Widnton  v,  Pulitzer 
Pub.  Co..  (C.  C.  A.)  218  Fed.  483;  Brandt  v.  Story,  161  la.  451 ;  Tanner  v,  Steven- 
son, 138  Ky.  678;  Reid  r.  Nichols.  166  Ky.  423;  Sweet  v.  Post  Pub.  Co.,  215  Mass. 
450;  Clair  v.  Battle  Creek  Journal  Co.,  168  Mich.  467;  Ivie  v.  King,  167  N.  C.  174; 
Spencer  v.  Minnick,  41  Okl.  613;  Williams  v.  Hicks  Printing  Co.,  169  Wis.  90 

Fair  comment  on  public  affairs  and  public  officers.  See  Gandia  v,  Pettindll,  222 
U.  S.  462;  Lowe  v.  News  Pub.  Co.,  9  Ga.  App.  103;  Diener  v.  Star  Chronicle  Pub. 


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772  CARR  V.  HOOD  [CHAP.  VT, 

CARR  V.  HOOD 

Before  Lord  Ellenborough,  C.  J.,  London  Sittings  after 

Trinity  Term,  1808. 

Reported  in  1  Campbell,  Z55,  n. 

The  declaration  stated,  that  the  plaintiff,  before  the  pubUshing  of 
any  of  the  false,  scandalous,  maUcious,  and  defamatory  libels  therein- 
after mentioned,  was  the  author  of,  and  had  sold  for  divers  large  sums 
of  money,  the  respective  copyrights  of  divers  books  of  him  the  said  Sir 
John,  to  wit  a  certain  book  entitled  "  The  Stranger  in  France,"  a  cer- 
tain other  book,  entitled  "  A  Northern  Summer,"  a  certain  other  book, 
entitled  "  The  Stranger  in  Ireland,"  Ac.  which  said  books  had  been 
respectively  published  in  4to,  yet  that  defendant  intending  to  expose 
him  to,  and  to  bring  upon  him  great  contempt,  laughter,  and  ridicule, 
falsely  and  maUciously  published  a  certain  false,  scandalous,  maUcious, 
and  defamatory  Ubel,  in  the  form  of  a  book,  of  and  coiyjeming  the  said 
Sir  John,  and  of  and  concerning  the  said  books,  of  which  the  said  Sir 
John  was  the  author  as  aforesaid,  which  same  Ubel  was  entitled  "  My 
Pocket  Book,  or  Hints  for  a  Ryghte  Merrie  and  conceited  Tour,  in 
quarto,  to  be  called  The  Stranger  in  Ireland  in  1805,  (thereby  aUud- 
ing  to  the  said  book  of  the  said  Si^  John,  thirdly  above  mentioned,) 
by  a  knight  errant  (thereby  alluding  to  the  said  Sir  John),"  and  which 
same  Ubel  contained  therein  a  certain  false,  scandalous,  maUcious,  and 
defamatory  print,  of  and  concerning  the  said  Sir  John,  and  of  and 
concerning  the  said  books  of  the  said  Sir  John,  1st  and  2dly  above 
mentioned,  therein  caUed,  "  Frontispiece,"  and  entitled  "  The  Knight 
(meaning  the  said  Sir  John)  leaving  Ireland  with  R^ret,"  and  con- 
taining and  representing  in  the  said  print,  a  certain  false,  scandalous 
and  maUcious,  defamatory,  and  ridiculous  representation  of  the  said 
Sir  John,  in  the  form  of  a  man  of  ludicrous  and  ridiculous  appear- 
ance, holding  a  pocket-handkerchief  to  his  face,  and  appearing  to  be 
weeping,  and  also  containing  therein  a  certain  false,  maUcious,  and 
ridiculous  representation  of  a  man  of  ludicrous  and  ridiculous  appear- 
ance, foUowing  the  said  representation  of  the  said  Sir  John,  and  repre- 
senting a  man  loaded  with,  and  bending  imder  the  weight  of  three 
large  books,  one  of  them  having  the  word  '*  Baltic,"  printed  on  the 
back  thereof,  &c.,  and  a  pocket-handkerchief  appearing  to  be  held  in 
one  of  the  hands  of  the  said  representation  of  a  man,  and  the  comers 
thereof  appearing  to  be  held  or  tied  together,  as  if  containing  some- 
thing therein,  with  the  printed  word  *^  wardrobe  "  depending  there- 
Co.,  230  Mo.  613:  Cook  v.  Globe  Prmting  Co.,  227  Mo.  471:  Merrey  v.  Guardian 
Pub.  Co.,  79  N.  J.  Law,  177;  Bingham  v.  Gaynor,  203  N.  Y.  27. 

Fair  comment  on  candidates.  Walsh  v.  Pulitzer  Pub.  Co.,  250  Mo.  142;  Schull  t^. 
Hopkins,  26  S.  D.  21;  Ingalls  v.  Morrissey,  164  Wis.  632. 

F'air  comment  on  persona  seeking  public  patronage,   Ott  v.  Murphy,  160  la.  730. 


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CHAP.  VI.]  CARB  V.  HOOD  773 

from,  (thereby  falsely,  scandalously,  and  maliciously,  meaning  and 
intending  to  represent,  for  the  purpose  of  rendering  the  said  Sir  John 
ridiculous,  and  exposing  him  to  laught^,  ridicule,  and  contempt,  that 
one  copy  of  the  said  1st  mentioned  book  of  the  said  Sir  John,  and  two 
copies  of  the  said  book  of  the  said  Sir  John  2dly  above  mentioned,  were 
so  heavy  as  to  cause  a  man  to  bend  under  the  weight  thereof,  and  that 
his  the  said  Sir  John's  wardrobe  was  very  small,  and  capable  of  being 
contained  in  a  pocket-handkerchief,)  and  which  said  Ubel  also  con- 
tained, Ac.  &c.  The  declaration  concluded  by  laying  as  special  dam- 
age, that  the  said  Sir  John  had  been  prevented  and  hindered  from 
selling  to  Sir  Richard  Philips  Knt.  for  a  large  simi  of  money  to  wit 
£600,  the  copyright  of  a  certain  book  or  work  of  him  the  said  Sir  John, 
of  which  the  said  Sir  John  was  the  author,  containing  an  account  of  a 
tour  of  him  the  said  Sir  John  through  part  of  Scotland,  which  butfor 
the  publishing  of  the  said  false,  scandalous,  maUcious,  and  defamatory 
Ubels,  he  the  said  Sir  John  would,  could,  and  might  have  sold  to  the 
said  Sir  Richard  Philips  for  the  said  last  mentioned  simi  of  money, 
and  the  same  remained  wholly  unsold  and  imdisposed  of,  and  was 
greatly  depreciated  and  lessened  in  value  to  the  said  Sir  John.  — 
Plea,  not  guilty. 

Lord  Ellenborouoh,  as  the  trial  was  proceeding,  intimated  an 
opinion,  that  if  the  book  published  by  the  defendants  only  ridiculed 
the  plakitiff  as  an  author,  the  action  could  not  be  maintained. 

GarroWf  for  the  plaintiff,  allowed,  that  when  his  cUent  came  forward 
as  an  author,  he  subjected  himself  to  the  criticism  of  all  who  might  be 
disposed  to  discuss  tiie  merits  of  his  works;  but  that  criticism  must  be 
fair  and  liberal;  its  object  ought  to  be  to  enlighten  the  pubUc,  and  to 
guard  them  against  the  supposed  bad  tendency  of  a  particular  pubUca- 
tion  presented  to  them,  not  to  wound  the  feelings  and  to  ruin  the 
prospects  of  an  individual.  K  ridicule  was  employed,  it  should  have 
some  boimds.  While  a  liberty  was  granted  of  analyzing  literary  pro- 
ductions, and  pointing  out  their  defects,  still  he  must  be  considered  as 
a  Ubeller,  whose  only  object  was  to  hold  up  an  author  to  the  laughter 
and  contempt  of  mankind.  A  man  with  a  wen  upon  his  neck  perhaps 
could  not  complain  if  a  surgeon  in  a  scientific  work  should  minutely 
describe  it,  and  consider  its  nature  and  the  means  of  dispersing  it; 
but  surely  he  might  support  an  action  for  damages  against  any  one 
who  should  publish  a  book  to  make  him  ridiculous  on  accoimt  of  this 
infirmity,  with  a  caricature  print  as  a  frontispiece.  The  object  of  the 
book  published  by  the  defendants  clearly  was,  by  means  of  immoder- 
ate ridicule  to  prevent  the  sale  of  the  plaintiff's  works,  and  entirely  to 
destroy  him  as  an  author.  In  the  late  case  of  Tipper  v.  Tabbart,  1 
Camp.  350,  his  lordship  had  held  that  a  publication  by  no  means  so 
offensive  or  prejudicial  to  the  object  of  it,  was  libellous  and  actionable. 

Lord  Ellenborouoh.  In  that  cajse  the  defendant  had  falsely  ac- 
cused the  plaintiff  of  publishing  what  he  had  never  published.    Here 


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774  CARR  V.  HOOD  [CHAP.  VI. 

the  supposed  libel  has  only  attacked  those  works  of  which  Sir  John 
Carr  is  the  avowed  author;  and  one  writer  in  exposing  the  follies  and 
errors  of  another  may  make  use  of  ridicule  however  poignant.  Ridi- 
cule is  often  the  fittest  weapon  that  can  be  employed  for  such  a  pur- 
pose. If  the  reputation  or  pecuniary  interests  of  the  person  ridiculed 
suffer,  it  is  damnum  absque  injuria.  Where  is  the  liberty  of  the  press 
if  an  action  can  be  maintained  on  such  principles  ?  Perhaps  the  plain- 
tiff's "  Tour  through  Scotland  ''  is  now  unsaleable;  but  is  he  to  be 
indemnified  by  receiving  a  compensation  in  damages  from  the  person 
who  may  have  opened  the  eyes  of  the  public  to  the  bad  taste  and 
inanity  of  his  compositions  ?  Who  would  have  bought  the  works  of 
Sir  Robert  Filmer  after  he  had  been  refuted  by  Mr.  Locke  ?  but  shall 
it  be  said  that  he  might  have  sustained  an  action  for  defamation 
against  that  great  philosopher,  who  was  laboring  to  enlighten  and 
ameliorate  mankind  ?  We  really  must  not  cramp  observations  upon 
authors  and  their  works.  They  should  be  liable  to  criticism,  to 
exposure,  and  even  to  ridicule,  if  their  compositions  be  ridiculous; 
otherwise  the  first  who  writes  a  book  on  any  subject  will  maintain  a 
monopoly  of  sentiment  and  opinion  respecting  it.  This  would  tend  to 
the  perpetuity  of  error.  —  Reflection  on  personal  character  is  another 
thing.  Show  me  an  attack  on  the  moral  character  of  this  plaintiff,  or 
any  attack  upon  his  character  imconnected  with  his  authorship,  and 
I  Ediall  be  as  ready  as  any  judge  who  ever  sat  here  to  protect  him;  but 
I  cannot  hear  of  malice  on  account  of  turning  his  works  into  ridicule. 

The  counsel  for  the  plaintiff  still  complaining  of  the  imf aimess  of 
this  publication,  and  particularly  of  the  print  affixed  to  it,  the  trial 
proceeded. 

The  Attorney-General  having  addressed  the  jury  on  behalf  of  the 
defendants  — 

Lord  Ellenborough  said,  Eve^  man  who  publishes  a  book  com- 
mits himself  to  the  judgment  of  the  public,  and  any  one  may  com- 
ment upon  his  performance.  If  the  conmientator  does  not  step  aside 
from  the  work,  or  introduce  fiction  for  the  purpose  of  condemnation, 
he  exercises  a  fair  and  legitimate  right.  In  the  present  case,  had  the 
party  writing  the  criticism  followed  the  plaintiff  into  domestic  life  for 
the  purposes  of  slander,  that  would  have  been  libellous;  but  no  pas- 
sage of  this  sort  has  been  produced,  and  even  the  caricature  does  not 
affect  the  plaintiff,  except  as  the  author  of  the  book  which  is  ridiculed. 
The  works  of  this  gentleman  may  be,  for  ought  I  know,  very  valuable; 
but  whatever  their  merits,  others  have  a  right  to  pass  their  judgment 
upon  them,  —  to  censure  them  if  they  be  censiuttble,  and  to  turn  them 
into  ridicule  if  they  be  ridiculous.  The  critic  does  a  great  service  to  the 
public,  who  writes  down  any  vapid  or  useless  publication,  such  ^ 
ought  never  to  have  appeared.  He  checks  the  dissemination  of  bad 
taste,  and  prevents  people  from  wasting  both  their  time  and  money 
upon  trash. — I  speak  of  fair  and  candid  criticism;  and  this  every  one 


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CHAP.  VI.]  MERIVALE  V.  CARSON  775 

has  a  right  to  publish,  although  the  author  may  suffer  a  loss  from  it. 
Such  a  loss  the  law  does  not  consider  as  an  injury;  because  it  is  a 
loss  which  the  party  ought  to  sustain.  It  is  in  short  the  loss  of  fame 
and  profits  to  which  he  was  never  entitled.  Nothing  can  be  conceived 
more  threatening  to  the  liberty  of  the  press  than  the  species  of  action 
before  the  court.  We  ought  to  resist  an  attempt  against  free  and 
liberal  criticism  at  the  threshold.  —  The  Chief  Justice  concluded  by 
directing  the  jury,  that  if  the  writer  of  the  publication  complained  of 
had  not  travdled  out  of  the  work  he  criticised  for  the  purpose  of  slan- 
der, the  action  would  not  lie;  but  if  they  could  discover  in  it  anything 
personally  slanderous  against  the  plaintiff,  unconnected  with  the 
works  he  had  given  to  the  public,  in  that  case  he  had  a  good  cause  of 
action,  and  they  would  award  him  damages  accordingly. 

Verdict  for  the  defendanJU} 

MERIVALE  V.  CARSON  | 

In  the  Coubt  of  Appeal,  Decembeb  2, 1887.  i 

Reported  in  20  Queen's  Bench  Divinon,  275. 

Appeal  by  the  defendant  against  the  refusal  of  a  divisional  court 
(Mathew  and  Grantham,  JJ.)  to  allow  a  new  trial  of  the  action,  or  to 
enter  judgment  for  the  defendant. 

The  action  was  brought  to  recover  damages  in  respect  of  an  alleged 
libel.  At  the  trial  before  Field,  J.,  it  appeared  that  the  plaintiff  and 
his  wife  were  the  joint  authors  of  a  play  called  "  The  Whip  Hand." 

^  Dibdin  v.  Swan,  1  Esp.  28;  Heriot  v,  Stuart,  1  Esp.  437;  .Stuart  t;.  Lovell, 
2  Stark.  93  (semble);  Tabart  v.  Tipper,  1  Camp.  350  (semble);  Dunne  v.  Ander- 
son, Ry.  &  M.  287,  3  Bing.  88:  Soane  v.  Knight,  M.  &  M.  74;  Thompson  v. 
Shackell,  M.  &  M.  187;  Macleod  v.  Waklev,  3  Car.  A  P.  311;  Fraser  v.  Berkeley, 
7  Car.  &  P.  621 ;  Evans  v.  Harlow,  Dav.  &  M.  507:  Paris  v,  Leyy^  C.  B.  n.  s.  342: 
Eastwood  V,  Holmes,  1  F.  A  F.  347;  Hibbs  v.  Wilkinson,  1  F.  &  F.  608;  Tumbull 
V.  Bird,  2  F.  &  F.  608;  Strauss  r.  Francis,  4  F.  &  F.  939.  1107,  15  L.  T.  Rep.  674; 
Henwood  v.  Harrison,  L.  R.  7  C.  P.  606;  Jenner  v,  A'Beckett,  L.  R.  7  Q.  B.  11; 
Mulkem  v.  Ward,  13  Eq.  619,  622;  Whistler  v.  Ruskin,  Odgers,  Lib.  &  SI.,  (5  ed.) 
196;  Duplany  v,  Davis,  3  T.  L.  R.  184:  McQuire  v.  Western  Co.,  [1903]  2  K. 
B.  100:  Crane  v.  Waters,  10  Fed.  619;  Snyder  v.  Fulton,  34  Md.  128, 137;  Gott 
V.  Pulsifer,  122  Mass.  235;  O'Connor  w.  Sill,  60  Mich.  175;  Dowling  v.  Livingstone. 
108  Mich.  321;  Cooper  v.  Stone,  24  Wend.  434  (semble);  Reade  v.  Sweetaer,  6 
Abb.  Pr.  N.  8.  9,  n.  (semble);  Adolf  Philipp  Co.  v.  New  Yorker  Staatszeitung,  165 
App.  Div.  377;  Press  Co.  v.  Stewart,  119  Pa.  St.  584  Accord. 

"  The  defendant  was,  in  my  opinion,  entitled  to  have  the  jury's  decision,  as  to 
the  plea  of  fair  comment,  whether  or  not,  in  all  the  circumstances  proved,  the  libel 
went  beyond  a  fair  conmient  on  the  plaintiff  and  on  the  system  of  medical  enter- 
prise with  which  he  associated  himself,  as  a  matter  of  public  interest  treated  by  the 
defendant  honestly  and  without  mahce.  The  plea  of  fair  conunent  does  not  arise 
if  the  plea  of  justification  is  made  good,  nor  can  it  arise  unlp<s  there  is  an  imputa- 
tion on  a  plaintiff.  It  is  precisely  where  the  criticism  would  otherwise  be  action- 
able as  a  Ubel  that  the  defence  of  fair  comment  comes  in.  But  the  learned  mdge 
put  aside  that  defence,  and  told  the  jury  that  unless  a  justification  was  proved  they 
were  bound  to  find  a  verdict  for  the  plaintiff,  and  that,  unless  justified,  the  libel  is 
not  fair  comment  and  cannot  come  within  the  region  of  fair,  comment."  Lord 
Lorebum,  L.  C,  in  Dakhyl  v.  Labouchere,  [1908]  2  K.  B.  325,  326-27. 


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776  MERIVALE  V.  CARSON  [CHAP.  VI. 

The  defendant  was  the  editor  of  a  theatrical  newspaper  called  "  The 
Stage."  Elarly  in  May,  1886,  the  play  was  performed  at  a  theatre  in 
Liverpool.  On  May  7  a  criticism  of  the  play  was  published  in  the  de- 
fendant's newspaper.  The  part  of  the  article  charged  in  the  statement 
of  claim  as  libellous  was  as  follows:  " '  The  Whip  Hand,'  the  joint 
production  of  Mr.  and  Mrs.  Herman  Merivale,  gives  us  nothing  but  a 
hash-up  of  ingredients  which  have  been  used  ad  naiLseamy  until  one 
rises  in  protestation  against  the  loving,  confiding,  fatuous  husband 
with  the  naughty  wife  and  her  double  existence,  the  good  male  genius, 
the  limp  aristocrat,  and  the  villainous  foreigner.  And  why  dramatic 
authors  will  insist  that  in  modem  society  comedies  the  villain  must  be 
a  foreigner,  and  the  foreigner  must  be  a  villain,  is  only  explicable  on 
the  ground,  we  suppose,  that  there  is  more  or  less  of  romance  about 
such  gentry.  It  is  more  in  consonance  with  accepted  notions  that  your 
Continental  croupier  would  make  a  much  better  fictitious  prince,  mar- 
quis, or  count  than  would,  say,  an  English  billiard-marker  or  stable- 
lout.  And  so  the  Marquis  Colonna  in '  The  Whip  Hand  '  is  offered  up 
by  the  authors  upon  the  altar  of  tradition  and  sacrificed  in  the  usual 
manner  when  he  gets  too  troublesome  to  permit  of  the  reconciliation  of 
husband  and  wife,  and  lover  and  maiden,  and  is  proved,  also  much  as 
usual,  to  be  nothing  more  than  a  kicked-out  croupier."  The  innuendo 
suggested  was  that  the  article  implied  that  the  play  was  of  an  immoral 
tendency. 

It  was  admitted  that  there  was  no  adulterous  wife  in  the  play. 

Field,  J.,  in  the  coiu-se  of  his  summing-up  to  the  jury,  said:  "  The 
question  is,  first,  whether  this  criticism  bears  the  meaning  which  the 
plaintiffs  put  upon  it.  If  it  is  a  fair  temperate  criticism,  and  does  not 
bear  that  meaning,  or  is  not  fairly  to  be  read  as  having  that  meaning, 
then  your  verdict  will  be  for  the  defendants.  ...  It  is  not  for  a  mo- 
ment suggested  by  any  one  that  the  defendant  is  animated  by  the 
smallest  possible  malice  towards  the  plaintiffs.  There  is  no  ground 
for  saying  so,  and  no  one  has  said  so.  .  .  .  The  maUce  which  is  neces- 
sary in  this  action  is  one,  which,  if  it  existed  at  all,  will  be  because  the 
defendant  has  exceeded  his  right  of  criticism  upon  the  play.  You 
have  the  play  before  you,  you  must  judge  for  yoiu-selves.  If  it  is  no 
more  than  fair,  honest,  independent,  bold,  even  exaggerated,  criticism, 
then  your  verdict  will  be  for  the  defendant.  It  is  for  the  plaintiffs  to 
make  out  their  case.  They  have  to  satisfy  you  that  it  is  more  than 
that,  otherwise  they  cannot  complain.  If  you  are  satisfied  upon  the 
evidence  that  it  is  more  than  that,  then  you  will  give  your  verdict  for 
the  plaintiffs." 

The  jury  foimd  a  verdict  for  the  plaintiffs  with  one  shilling  dam- 
ages, and  the  judge  entered  judgment  for  the  plaintiffs  accordingly, 
and  declined  to  deprive  them  of  costs. 

The  defendant  appealed.^ 

1  The  arguments  are  omitted. 


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CHAP.  VI,]  MERIVALB  V.  CARSON  777 

Lord  Eshbr,  M.  R.  This  action  is  brought  in  respect  of  an  alleged 
libel  contained  in  a  criticism  by  the  defendant  upon  a  play  written  by 
the  plaintiffs.  The  first  thing  to  be  considered  is,  what  are  the  ques- 
tions which  in  §uch  a  case  ought  to  be  left  to  the  jury  ?  The  first  ques- 
tion to  be  'eft  to  them  is,  what  is  the  meaning  of  the  alleged  libel  ? 
The  jury  must  look  at  the  criticism,  and  say  what  in  their  opinion  any 
reasonable  man  would  imderstand  by  it.  I  am  not  prepared  to  say 
that  in  coming  to  their  conclusion  they  would  not  also  have  to  look  at 
the  work  criticised.  That,  however,  is  not  very  material  for  us  to  con- 
sider now.  The  proper  question  was  put  to  the  jury  in  the  present 
case.  Two  interpretations  of  the  defendant's  article  were  placed 
before  them.  One  was  that  it  meant  that  the  play  is  founded  upon 
adultery,  without  containing  any  stigma  on  tiie  fact  that  it  is  so 
founded.  The  defendant's  article  is  allied  to  be  libellous  in  that  it 
attributed  to  the  plaintiflFs  that  they  had  written  a  play  founded  upon 
adultery,  without  any  objection  to  it  on  their  part,  in  other  words, 
that  they  had  written  an  immoral  play.  On  bdialf  of  the  defendant 
it  was  said  that  the  article  had  no  such  meaning,  that  the  expression 
"  naughty  wife  "  does  not  mean  "  adulterous  wife."  It  would  not 
have  that  meaning  in  every  case,  but  the  question  is  whether,  looking 
at  the  context  of  the  article,  it  has  that  meaning.  If  the  court  should 
come  to  the  conclusion  that  the  expression  could  not  by  any  reasonable 
man  be  thought  to  have  that  meaning,  they  could  overrule  the  verdict 
of  the  jury;  otherwise  the  question  is  for  the  jury. 

What  is  the  next  question  to  be  put  to  the  jury  ?  Are  they  to  be 
told  that  the  criticism  of  a  play  is  a  privileged  occasion,  within  the 
well-settled  meaning  of  the  word  "  privilege,"  and  that  their  verdict 
must  go  for  the  defendant,  unless  the  plaintiff  can  prove  malice  in  fact, 
that  is,  that  the  writer  of  the  article  was  actuated  by  an  indirect  or 
malicious  motive  7  I  think  it  is  clear  that  that  is  not  the  law,  and 
that  it  was  so  decided  in  Campbell  v.  Spottiswoode,  which  has  never 
been  overruled.  All  the  judges,  both  before  and  ever  since  that  case, 
have  acted  upon  the  view  there  expressed,  that  a  criticism  upon  a 
written  published  work  is  not  a  privileged  occasion.  Blackburn,  J., 
in  his  judgment,  shows  why  it  is  not  a  privileged  occasion.  A  privi- 
leged occasion  is  one  on  which  the  privileged  person  is  entitled  to  do 
something  which  no  one  who  is  not  within  the  privilege  is  entitled  to 
do  on  that  occasion.  A  person  in  such  a  position  may  say  or  write 
about  another  person  things  which  no  other  person  in  the  kingdom 
can  be  allowed  to  say  or  write.  But,  in  the  case  of  a  criticism  upon  a 
published  work,  every  person  in  the  kingdom  is  entitled  to  do,  and  is 
forbidden  to  do  exactly  the  same  things,  and  therefore  the  occasion  is 
not  privileged.  Therefore  the  second  question  to  be  put  to  the  jury  is, 
whether  the  alleged  libel  is  or  is  not  a  libel.  The  form  in  which  that 
question  should  be  put  is,  I  think,  best  expressed  by  Crompton,  J.,  in 
Campbell  t;.  Spottiswoode.    He  says:   "  Nothing  is  more  important 


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778  MERIVALE  V.  CARSON  [CHAP.  VI. 

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  Uterary  work.  But  it  is  always  to  be  left 
to  a  jury  to  say  whether  the  publication  has  gone  beyond  the  limits  of 
a  fair  comment  on  the  subject-matter  discussed.  A  writer  is  not  en- 
titled to  overstep  those  limits,  and  impute  base  and  sordid  motives 
which  are  not  warranted  by  the  facts,  and  I  cannot  for  a  moment 
think,  because  he  has  a  bona  fide  beUef  that  he  is  publishing  what  is 
true,  that  is  any  answer  to  an  action  for  libel."  He  says  that  upon 
the  answer  to  the  question  there  stated  it  depends  whether  the  article 
upon  which  the  action  is  brought  is  or  is  not  a  Ubel.  The  question  is 
not  whether  the  article  is  privileged,  but  whether  it  is  a  libel.  What 
is  the  meaning  of  a  ''  fair  comment ''  ?  I  think  the  meaning  is  this: 
is  the  article  in  the  opinion  of  the  jury  beyond  that  which  any  fair 
man,  however  prejudiced  or  however  strong  his  opinion  may  be,  would 
say  of  the  work  in  question  ?  Every  latitude  must  be  given  to  opinion 
and  to  prejudice,  and  then  an  ordinary  set  of  men  with  ordinary  judg- 
ment must  say  whether  any  fair  man  would  have  made  such  a  com- 
ment on  the  work.  It  is  very  easy  to  say  what  would  be  clearly 
beyond  that  limit;  if,  for  instance,  the  writer  attacked  the  private 
character  of  the  author.  But  it  is  much  more  diflScult  to  say  what  is 
within  the  limit.  That  must  depend  upon  the  circumstances  of  the 
particular  case.  I  think  the  right  question  was  really  left  by  Field,  J., 
to  the  jury  in  the  present  case.  No  doubt  you  can  find  in  the  course 
of  his  summing  up  some  phrases  which,  if  taken  alone,  may  seem  to 
limit  too  much  the  question  put  to  the  jury.  But,  when  you  look  at 
the  summing  up  as  a  whole,  I  think  it  comes  in  substance  to  the  final 
question  which  was  put  by  the  judge  to  the  jury:  "  If  it  is  no  more 
than  fair,  honest,  independent,  bold,  even  exaggerated,  criticism, 
then  your  verdict  will  be  for  the  defendants."  He  gives  a  very  wide 
limit,  and,  I  think,  rightly.  Mere  exaggeration,  or  even  gross  exag- 
geration, would  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  limit.  The  question 
which  the  jury  must  consider  is. this:  Would  any  fair  man,  however 
prejudiced  he  may  be,  however  exaggerated  or  obstinate  his  view, 
have  said  that  which  this  criticism  has  said  of  the  work  which  is  crit- 
icised ?  If  it  goes  beyond  that,  then  you  must  find  for  the  plaintiff; 
if  you  are  not  satisfied  that  it  does,  then  it  falls  within  the  allowed 
limit,  and  there  is  no  libel  at  all.  I  cannot  doubt  that  the  jury  were 
justified  in  coming  to  the  conclusion  to  which  they  did  come,  when 
once  they  had  made  up  their  minds  as  to  the  meaning  of  the  words 
used  in  the  article,  viz.  that  the  plaintiflFs  had  written  an  obscene  play; 
and  no  fair  man  could  have  said  that.  There  was  therefore  a  complete 
misdescription  of  the  plaintiffs'  work,  and  the  inevitable  conclusion 


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CHAP.  VI.]  MERIVALE  V.  CARSON  779 

was  that  an  imputation  was  cast  upon  the  characters  of  the  authors. 
Even  if  I  had  thought  that  the  right  direction  had  not  been  given  to 
the  jury,  I  should  have  declined  to  grant  a  new  trial,  for  the  same  ver- 
dict must  inevitably  have  been  found  if  the  jury  had  been  rightly 
directed. 

Another  point  which  has  been  discussed  is  this:  It  is  said  that  if  in 
some  other  case  the  alleged  libel  would  not  be  beyond  the  limfts  of  fair 
criticism,  and  it  could  be  shown  that  the  defendant  was  not  really 
criticising  the  work,  but  was  writing  with  an  indirect  and  dishonest 
intention  to  injure  the  plaintiffs,  still  the  motive  would  not  make  the 
criticism  a  Ubel.  I  am  inclined  to  think  that  it  would,  and  for  this 
reason,  that  the  comment  would  not  then  really  be  a  criticism  of  the 
work.  The  mind  of  the  writer  would  not  be  that  of  a  critic,  but  he 
would  be  actuated  by  an  intention  to  injure  the  author. 

In  my  opinion  this  appeal  must  be  dismissed. 

BowEN,  L.  J.  We  must  begin  with  asking  oiu-selves,  what  is  the 
true  meaning  of  the  words  used  in  the  alleged  libel  ?  We  have  the 
benefit  of  the  machinery  which  the  law  gives  —  the  verdict  of  a  jury  — 
for  ascertaining  the  meaning,  and  it  must  now  be  taken  to  have  been 
conclusively  settled,  that  the  writer  of  the  criticism  has  imputed  to 
the  plaintiffs  that  the  story  of  their  play  turns  in  its  main  incident 
upon  an  adulterous  wife,  and  in  such  a  way  as  not  to  lead  any  one 
to  suppose  that  the  plaintiffs  objected  to  the  adultery,  but,  on  the 
contrary,  that  they  had  treated  the  adultery  as  a  spicy  incident  in 
the  play,  without  expressing  any  opinion  as  to  its  morality.  It  has 
been  admitted  by  the  defendant  that  the  play  does  not  in  fact  con- 
tain any  adulterous  wife,  that  there  is  no  incident  of  adultery  in  it, 
and  therefore  it  is  not  open  to  the  suggestion  that  the  plaintiffs  have 
treated  adultery  lightly  in  such  a  way  as  to  tend  to  immoraUty.  These 
are  the  facts. 

What  then  is  the  law  applicable  to  them  ?  We  must  see,  first,  what 
is  the  question  which  ought  to  have  been  left  to  the  jury  on  this  as- 
sumption of  the  meaning  of  the  article,  and  then  whether  it  was  in  fact 
left  to  them,  and  whether  there  was  any  miscarriage  on  their  part.  I 
take  precisely  the  same  view  as  the  Master  of  the  Rolls  with  regard  to 
the  way  in  which  the  word  "  privilege  *'  ought  to  be  used.  The  present 
case  is  not,  strictly  speaking,  one  of  "  privileged  occasion."  In  a  legal 
sense  that  term  is  used  with  reference  to  a  case  in  which  one  or  more 
members  of  the  pubUc  are  clothed  with  a  greater  immunity  than  the 
rest.  But  in  the  present  case  we  are  dealing  with  a  common  right  of 
pubUc  criticism  which  every  subject  of  the  realm  equally  enjoys,  — 
the  right  of  publishing  a  written  criticism  upon  a  literary  work  which 
is  offered  to  public  criticism. 

It  is  true  that  a  different  metaphysical  exposition  of  this  common 
right  is  to  be  foimd  in  the  judgment  of  Willes,  J.,  in  Henwood  v.  Har- 
rison, Law  Rep.  7  C.  P.  606.   That  learned  judge  and  the  majority  of 


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780  MERIVALB  V.  CARSON  [CHAP.  VI. 

the  Court  of  Common  Pleas  seem  to  have  treated  this  right  as  a 
branch  of  the  general  law  of  privilege,  and  to  have  f oimd  a  justification 
for  the  use  of  the  word  "  privilege  "  in  the  subject  matter  of  the  crit- 
icism, although  there  is  no  limit  of  the  number  of  the  persons  entitled 
to  make  the  criticism.  With  great  respect  to  Willes,  J.,  I  agree  with 
the  Master  of  the  Rolls  that  this  is  not  so  good  an  exposition  of  the 
right  as  that  which  is  given  by  Blackburn,  J.,  and  Crompton,  J.,  in 
Campbell  v.  Spottiswoode.  But  the  question  is  rather  academical 
than  practical,  for  I  do  not  think  it  would  make  any  substantial  dif- 
ference in  the  present  case  which  view  was  the  right  one.  But,  among 
other  reasons,  why  I  prefer  the  view  of  Blackburn,  J.,  and  Crompton, 
J.,  is  this,  that  it  leaves  imdisturbed  the  mode  of  directing  the  jury  in 
cases  of  this  class  which  has  been  ordinarily  adopted,  viz.,  to  b^in  by 
asking  them  whether  they  think  the  limits  of  fair  criticism  have  been 
passed.  That  implies  that  there  is  no  libel  if  those  limits  ace  not 
passed.  It  is  only  when  the  writer  goes  beyond  the  limits  of  fair  crit- 
icism that  his  criticism  passes  into  the  region  of  libel  at  all.  This 
leaves  unsettled  the  inquiry,  and  perhaps  it  was  intended  in  Campbell 
V.  Spottiswoode  (a  case  which  has  never  been  questioned)  to  leave  it 
unsettled,  what  is  the  standard  for  the  jury  of  "  fair  criticism  "  ?  The 
criticism  is  to  be  "  fair,"  that  is,  the  expression  of  it  is  to  be  fair.  The 
only  limitation  is  upon  the  mode  of  expression.  In  this  country  a  man 
has  a  right  to  hold  any  opinion  he  pleases,  and  to  express  his  opinion, 
provided  that  he  does  not  go  beyond  the  limits  which  the  law  calls 
''  fair,"  and,  although  we  cannot  find  in  any  decided  case  an  exact  and 
rigid  definition  of  the  word  "  fair,"  this  is  because  the  judges  have 
always  preferred  to  leave  the  question  what  is  "  fair  "  to  the  jury. 
The  nearest  approach,  I  think,  to  an  exact  definition  of  the  word 
"  fair  "  is  contained  in  the  judgment  of  Lord  Tenterden,  C.  J.,  in 
Macleod  v.  Wakley,  3  C.  &  P.,  at  p.  313,  where  he  said,  "  Whatever  is 
fair,  and  can  be  reasonably  said  of  the  works  of  authors  or  of  them- 
selves, as  connected  with  their  works,  is  not  actionable,  unless  it  ap- 
pears that,  under  the  pretext  of  criticising  the  works,  the  defendant 
takes  an  opportimity  of  attacking  the  character  of  the  author:  then 
it  will  be  a  Ubel."  It  must  be  assumed  that  a  man  is  entitled  to  enter- 
tain any  opinion  he  pleases,  however  wrong,  exaggerated,  or  violent  it 
may  be,  and  it  must  be  left  to  the  jury  to  say  whether  the  mode  of 
expression  exceeds  the  reasonable  limits  of  fair  criticism. 

In  the  case  of  hterary  criticism  it  is  not  easy  to  conceive  what  would 
be  outside  that  region,  unless  the  writer  went  out  of  his  way  to  make  a 
personal  attack  on  the  character  of  the  author  of  the  work  which  he 
was  criticising.  In  such  a  case  the  writer  would  be  going  beyond  the 
limits  of  criticism  altogether,  and  therefore  beyond  the  limits  of  fair 
criticism.  Campbell  v.  Spottiswoode  was  a  case  of  that  kind,  and 
there  the  jury  were  asked  whether  the  criticism  was  fair,  and  they 
were  told  that,  if  it  attacked  the  private  character  of  the  author,  it 


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CHAP.  VI.]  MERIYALE  V.  CARSON  781 

would  be  going  beyond  the  limits  of  fair  criticism.  Still  there  is  an- 
other class  of  cases  in  which,  as  it  seems  to  me,  the  writer  would  be 
travelling  out  of  the  region  of  fair  criticism,  —  I  mean  if  he  imputes  to 
the  author  that  he  has  written  something  which  in  fact  he  has  not 
written.  That  would  be  a  misdescription  of  the  work.  T|iere  is  all  the 
difference  in  the  world  between  sa3ring  that  you  disapprove  of  the 
character  of  a  work,  and  that  you  think  it  has  an  evil  tendency,  and 
saying  that  a  work  treats  adultery  cavalierly,  when  in  fact  there  is  no 
adultery  at  all  in  the  story.  A  jury  would  have  a  right  to  consider  the 
latter  beyond  the  limits  of  fair  criticism. 

Applying  the  law  to  the  present  case,  we  have  to  see  whether  the 
learned  judge  misdirected  the  jury,  having  r^ard  to  their  finding  as  to 
the  true  construction  of  the  article.  Their  construction  of  the  words  of 
the  article  could  not  have  been  affected  by  what  he  said  to  them  about 
the  meaning  of  ''  fair  criticism."  The  alleged  Ubel  stated  that  the 
story  of  the  plaintiffs'  play  turned  upon  adultery.  In  a  case  of  mani- 
fest misdescription  such  as  this  the  judge  is  not  boimd  to  go  into  all  the 
minutiae  as  if  the  libel  had  been  of  a  different  character,  and  his  sum- 
ming-up must  be  read  with  reference  to  this  fact.  I  have  read  through 
the  summing-up  of  Field,  J.,  and,  though  I  do  not  think  that  his 
language  was  altogether  exact,  yet  what  possible  harm  could  it  have 
done  having  regard  to  the  facts  of  the  case  ?  The  jury  had  to  deal 
with  a  case  of  positive  misdescription,  a  question  not  of  opinion,  but  of 
fact.  Did  not  that  fall  clearly  beyond  the  limits  of  fair  criticism  ? 
Could  this  court  since  the  Judicature  Act  set  aside  the  verdict  of  the 
jury,  merely  because  the  language  of  the  learned  judge  was  not  exactly 
that  which  he  would  have  used  if  he  had  written  his  summing-up  ? 
Assummg  the  interpretation  the  jury  put  on  the  meaning  of  the  words 
to  be  correct,  as  we  must  assume,  I  entertain  no  doubt  as  to  the  cor- 
rectness of  the  remainder  of  the  verdict.  And,  even  if  the  view  of  the 
law  as  to  privilege  which  I  do  not  adopt  were  the  right  view,  I  do  not 
think  it  would  m^e  any  difference  in  the  present  case,  because,  the 
misrepresentation  being  clear,  the  writer  having  not  merely  said  that 
the  play  had  an  evil  tendency,  but  having  imputed  to  the  authors 
that  it  was  foimded  on  adultery  when  there  is  no  adultery  at  all  in  it, 
the  jury  would  have  inferred,  if  the  question  had  been  left  sufficiently 
to  them,  that  the  writer  was  actuated  by  a  maUcious  motive;  that  is 
to  say,  by  some  motive  other  than  that  of  a  pure  expression  of  a  critic's 
real  opinion.  Appeal  dismissed. 


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782  THOMAS  V.  BRADBURY,  AGNEW  &   CO.  [CHAP.  VI. 

THOMAS  V.  BRADBURY,  AGNEW  &  CO. 
In  the  Court  op  Appeal,  June  25,  1906. 
Reported  in  [1906]  2  King*8  Bench,  627. 

Application  by  the  defendants  for  a  new  trial  or  that  judgment 
should  be  entered  for  them  in  an  action  for  Ubel  tried  before  Darling, 
J.,  with  a  jury. 

The  alleged  libel  was  the  following  review  in  Punch  of  the  plain- 
tiff's book:  — 

"Mangled  Remains. 

"  Extract  from  the  Recess  Diary  of  Toby,  M.  P. 

"  Been  reading  '  Fifty  Years  of  Fleet  Street '  just  issued  by  Mac- 
millan.  Purports  to  be  the  '  Life  and  Recollections  of  Sir  John  Rob- 
inson,' the  man  who  made,  and  for  a  quarter  of  a  century  maintained 
at  high  level,  the  Daily  News.  The  story  is  written  by  Mr.  F.  M. 
Thomas,  who  has  added  a  new  terror  to  death.  There  are  biographies 
of  sorts  ranging  in  value  with  the  personality  of  the  subject  and  the 
skill  of  the  compiler.  The  former  occasionally  suffers  from  the  inca- 
pacity of  the  latter.  But  at  least  his  individuaUty  is  scrupulously  ob- 
served. Like  Don  Jos6,  what  he  has  said  he  has  said,  his  observations 
and  written  memoranda  not  being  mixed  up  with  what  his  biographer 
thinks  he  himself  thought,  uttered,  and  recorded.  Mr.  Thomas  goes 
about  the  biographer's  business  in  fresh  fashion,  ccmiplacently  an- 
nounced by  way  of  introduction  to  the  volume.  '  I  have  not  thought 
it  necessary  or  desirable,'  he  writes, '  to  indicate  in  all  cases  what  is  his 
(Sir  John  Robinson's)  and  what  is  my  own.  If  there  is  anything 
amusing  or  entertaining  in  these  pages,  I  am  quite  content  that  my 
dear  old  chief  should  have  the  crciiit  of  it.  The  dulness'  I  take  upon 
myself.'  Here  be  generosity!  Here  magnanimity!  It  is  true  that  in 
the  performance  of  his  task  Mr.  Thomas  occasionally  falls  from  this 
high  estate.  More  than  once  he  airily  alludes  to  '  our  diary '  and 
*  our  notes,'  as  if  he  had  prepared  them  in  collaboration  with  his  chief. 
Possibly  conscious  for  a  moment  of  this  indiscretion,  and  reverting  to 
more  generous  mood,  he,  approaching  a  particular  narrative,  intro- 
duces it  with  the  remark,  *  the  incident  may  be  given  in  the  diarist's 
own  words.'  The  procedure  is  perhaps  not  unusual  with  earUer  biog- 
raphers. With  Mr.  Thomas  the  relapse  is  rare.  When  he  does  let  the 
hapless  subject  speak  for  himself,  he  is  relegated  to  small  type.  For 
the  rest,  it  is  Mr.  Thomas  who  loquitur ,  retelling  poor  Robinson's  cher- 
ished stories  as  if  they  were  his  own,  sometimes  with  heavy  hand 
brushing  off  the  bloom.  Even  in  these  depressing  circimistances 
there  is  no  mistaking  Robinson's  sly  humour,  his  gift  of  graphic 
characterization.  The  worst  of  it  is  that,  happening  in  the  very  same 
page  upon  some  banal  remark,  some  pompous  platitude,  the  alanned 


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CHAP.  VI.]    THOMAS  V.  BRADBURY,  AGNEW  A   CO.  783 

reader,  recognizing  Mr.  Thomas,  hastily  turns  over  half-a-dozen 
pages,  and  possibly  misses  a  handful  of  the  genuine  ore.  These  are 
hard  lines,  unjust  to  Robinson,  unfair  to  the  public.  It  is  plain  to  see, 
from  the  few  immutilated  extracts  from  Robinson's  manuscript  which 
illuminate  the  book,  that  the  materials  at  hand  for  a  delightful  biog- 
raphy were  abundant.  For  nearly  forty  years  the  manager  of  the 
Daily  News  lived  in  the  very  heart  of  things.  He  was  behind  most 
scenes  of  pubUc  life,  was  more  or  less  intimately  acquainted  with  the 
principal  personages  figuring  in  it.  His  sympathies  were  bountifully 
wide,  his  observation  alert,  his  sense  of  hmnour  keen.  He  loved  his 
newspaper  work  with  ahnost  passionate  affection.  For  him  fifty  years 
of  Fleet  Street  were  worth  a  cycle  of  Cathay.  That  he  habitually 
made  notes  of  what  he  saw  and  heard  with  the  view  to  publication  in 
biographical  form  is  undoubted.  Mr.  Thomas,  impregnable  in  the 
chain  armour  of  complacency,  positively  admits  it.  '  Robinson,'  he 
says,  'did  leave  some  diaries  —  our  diaries  —  more  or  less  fragmen- 
twy,  and  a  niunber  of  thick,  closely-written  volmnes  of  jottings  in  his 
own  handwriting,  descriptive  of  events  of  which  he  had  been  an  eye- 
witness and  people  he  had  seen  and  known.'  Where  is  this  treasure 
trove  ?  Presumably  portions  the  biographer  was  good  enough  to  re- 
gard as  worth  adapting  are  filtered  through  the  wordy  pages  of  larger 
type.  Happily  the  material  is  so  good,  its  original  literary  form  so 
excellent,  that  even  this  unparalleled  atrocity  cannot  quite  spoil  the 
book.  We  who  knew  Robinson  on  his  throne  in  Bouverie  Street  and 
at  the  well-known  table  in  the  dining-room  of  the  Reform  Club,  rich 
in  recollections  of  William  Black,  Payn,  and  Sala;  who  watched  him 
enjoying  himself  like  a  boy  at  theatre  first  nights;  who  recognized  his 
rare  capacity  as  a  newspaper  man;  who  knew  the  kind  heart  hidden 
behind  a  studiously  cultured  severity  of  manner  in  business  relations 
—  we,  perhaps  jealously,  cherish  his  memory,  and  regret  the  surpris- 
ing chance  that  has  made  possible  this  slight  upon  it." 

The  defence  admitted  that  the  defendant  Lucy  wrote,  and  that  the 
other  defendants  published,  the  words  complained  of,  and  pleaded  that 
the  words  were  incapable  of  a  defamatory  meaning;  and  further,  that 
they  were  written  for  publication  and  were  published  as  a  criticism 
and  fair  comment  upon  the  plaintiff's  book  without  any  maUce  to- 
wards the  plaintiff,  and  were  a  fair  and  bona  fide  criticism  and  com- 
ment upon  the  book  which  was  a  matter  of  pubUc  interest. 

At  the  trial  the  plaintiff's  case  was,  first,  that  the  language  of  the 
review  itself  was  such  as  to  furnish  evidence  that  the  writer  was  not 
in  truth  criticising  the  book,  but  was  maliciously  attacking  the  author; 
and,  secondly,  that  there  was  evidence  outside  the  review  that. the 
defendant  Lucy,  in  writing  the  criticism,  was  actuated  by  maUce 
towards  the  plaintiff.  As  extrinsic  evidence  of  maUce  the  plaintiff 
reUed  upon  the  strained  relations  between  Lucy  and  himself  before  the 
criticism  was  published;  on  the  fact  that  the  criticism  was  published 


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784  THOMAS  V.  BRADBURY,  AGNEW  A  CO.         [CHAP.  VI. 

as  a  separate  article  under  the  heading  ''  Mangled  Remains/'  and  was 
not  included  in  that  part  of  the  journal  usually  devoted  to  reviews  of 
books  under  the  heading  "  Our  Booking  Office  '*]  and  on  the  ajiswers 
and  demeanor  of  Lucy  in  the  witness-box  at  the  trial.  At  the  close  of 
the  plaintiff's  case  counsel  for  the  defendants  submitted  that  there  was 
no  case  to  go  to  the  jury,  upon  the  grounds  that  the  article  was  inca- 
pable of  a  defamatory  meaning,  and  that  there  was  no  evidence  that  it 
exceeded  the  limits  of  fair  comment. 

The  learned  judge  declined  to  withdraw  the  case  from  the  jury,  who 
found  a  verdict  for  the  plaintiff  with  300Z.  damages. 

The  defendants  appealed.*  Cur.  adv.  vuU. 

June  25.  Collins,  M.  R.,  read  the  following  judgment:  This  is 
an  appeal  by  the  defendants  from  the  verdict  and  judgment  for  the 
plaintiff  in  an  action  of  Ubel,  tried  before  Darling,  J.,  and  a  special 
jury,  based  on  a  critique  of  a  book  written  by  the  plaintiff.  The 
critique  was  written  by  the  defendant  Lucy,  and  appeared  in  Punch, 
of  which  the  first  defendants  are  the  publishers.  The  defence  was 
fair  comment.  The  learned  judge  refused  to  withdraw  the  case  from 
the  jury,  who  found  for  the  plaintiff,  with  300Z.  damages.  The  defend- 
ants do  not  (iomplain  of  misdirection  other  than  that  involved  in  hold- 
ing that  there  was  any  evidence  fit  for  the  consideration  of  a  jury. 
They  ask  for  judgment  on  the  ground  that  there  was  nothing  in  the 
article  which  any  reasonable  jury  could  find  to  fall  outside  the  limits 
of  fair  comment,  or  in  the  alternative  they  ask  for  a  new  trial  on  the 
ground  that  the  verdict  was  against  the  weight  of  evidence. 

The  defendants  pressed  us  strongly  with  the  case  of  McQuire  v. 
Western  Mommg  News  Co.,  [1903]  2  K.  B.  100,  a  decision  of  this 
court  in  an  action  for  libel  in  respect  of  an  article  criticising  adversely 
a  play  of  which  the  plaintiff  was  the  author,  where  the  court  set  aside 
a  verdict  and  judgment  for  the  plaintiff  on  the  ground  that  there  was 
no  evidence  on  which  a  rational  verdict  for  the  plaintiff  could  be 
foimded.  There  were,  however,  two  distinctions  between  that  case 
and  the  present.  There  was  admittedly  in  that  case  no  evidence  of 
actual  malice  unless  it  could  be  inferred  from  the  terms  of  the  article 
itself,  and  there  was  some  reason  for  supposing  that  the  direction  was 
misleading.  In  the  present  case  the  plaintiff's  counsel  strenuously  con- 
tended that  there  was  extrinsic  evidence  of  malice  in  the  proved  rela- 
tions of  the  parties  before  the  action;  the  special  manner  in  which  the 
particular  article  appeared  in  Punch;  and  in  the  expressions  which  fell 
from  the  defendant  Lucy,  coupled  with  his  demeanor  in  the  witness- 
box,  and  they  relied  also  on  the  terms  of  an  apology  subsequently 
printed  as  fortifying  their  contention.  They  urged  besides  that  the 
language  of  the  article  itself  raised  a  question  for  the  jiuy  as  to  its 

^  The  statement  has  been  abridged,  and  the  arguments  of  counsel  together  with 
a  small  portion  of  the  judgment  are  omitted. 


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CHAP.  VI.]    THOMAS  V.  BRADBURY,  AGNEW  A   CO.  785 

meaning,  and  that  upon  their  view  of  its  meaning  would  depend  the 
question  whether  it  exceeded  the  bounds  of  fair  comment  or  not.  The 
question,  therefore,  for  our  decision  is  whether  there  was  any  evidence 
upon  which  a  rational  verdict  for  the  plaintiif  could  be  founded.  If 
so,  the  learned  judge  was  bound  to  leave  it  to  the  jury.  I  have  already 
said  that  extrinsic  evidence  of  malice,  which  I  have  attempted  to  sum- 
marize, was  allowed  to  go  to  the  jury.  The  defendants  contended  that 
this  evidence  amounted  to  nothing,  and  that  no  reasonable  jury  could 
act  upon  it,  but  they  also  raised  a  contention  which  alone,  as  it  seems  to 
me,  gives  any  importance  to  this  case.  Their  point  was  that  if  the 
article  itself,  apart  from  the  extrinsic  evidence,  did  not  raise  a  case  for 
the  jury  that  the  bounds  of  fair  comment  had  been  overstepped,  proof 
of  actual  malice  on  the  part  of  the  writer  could  not  afifect  the  question 
or  disturb  his  immunity.  This  is  a  formidable  contention.  It  in- 
volves the  assertion  that  fair  comment  is  absolute,  not  relative,  and 
must  be  measiu^  by  an  abstract  standard;  that  it  is  a  thmg  quite 
apart  from  the  opinions  and  motives  of  its  author  and  his  personal 
relations  towards-  the  writer  of  the  thing  criticised.  It  involves  the 
position  also  that  an  action  based  on  a  criticism  is  wholly  outside  the 
ordinary  law  of  libel,  of  which  malice,  express  or  implied,  has  always 
been  considered  to  be  the  gist. 

The  basis  of  this  contention,  such  as  it  is,  appears  to  be  a  miscon- 
ception of  the  effect  of  the  gloss,  if  I  may  so  phrase  it,  first  put  upon 
the  law  of  libel  in  relation  to  fair  comment  in  the  dicta  of  Cromp- 
ton,  J.,  and  Blackburn,  J.,  in  Campbell  v,  Spottiswoode,  decided  in 
1863,  and  subsequently  approved  in  Merivale  v.  Carson,  decided  in 
1887.  I  have  already  had  occasion  to  examine  the  effect  of  these  views 
upon  the  law  of  libel  in  McQuire  v.  Western  Morning  News  Co.,  [1903] 
2  K.  B.  100.  In  my  opinion  the  substance  of  the  matter  remains  un- 
changed and  malice  remains  exactly  where  it  did.  The  dicta  no  doubt 
assert  the  etymological  inexactitude  of  the  word  "  privilege  "  as  con- 
noting a  right  common  to  the  public  at  large,  and  the  limits  of  the  right 
itself  are  pointed  out  which,  whether  it  be  called  privilege  or  by  any 
other  name,'  does  not  extend  to  cover  misstatements  of  fact  however 
bona  fide;  ^  but  they  in  no  degree  affect  the  standard  by  which  the  fair- 

*  Merivale  v,  Carson,  supra,  775:  McQuire  t^.  Western  Co.,  (1903)  2  K.  B.  100, 
110:  Joynt  v.  Cycle  Co.,  [1904)  2  K.  B.  292;  Digby  v,  Financial  News,  [1907)  1 
K.  B.  602;  Hunt  v.  Star  Co.,  [1908)  2  K.  B.  309,  317;  Walker  v,  Hodgson,  [1909) 
1  K.  B.  239;  Starks  t^.  Comer,  190  Ala.  245;  Com.  v.  Pratt,  208  Mass.  563;  Will- 
iams V.  Hiclos  Printing  Co.,  159  Wis.  90:  Putnam  v.  Browne,  162  Wis.  524  Accord. 

In  Walker  v.  Hodgson,  Kennedy,  L.  J.,  said^  p.  256:  "  Now  it  is  true  that  there 
may  be  conmient  of  an  injurious  nature  in  which  there  is  no  statement  of  facts,  or 
which  refers  to  facts  which  are  admitted  or  are  indisputable.  In  such  a  case  the 
fairness  of  the  comment  depends  upon  the  character  of  the  criticisms,  or  the  infer- 
ences of  which  it  is  composed,  that  is,  whether  it  is  a  comment  made  honestly  and 
bona  fide,  or  a  comment  made  mala  fide  and  maliciously.  .  .  .  But  where  the 
words  which  are  alleged  to  be  defamatory  allege,  or  assume  as  true,  facts  concern- 
ing the  plaintiff  which  the  plaintiff  denies,  and  which  either  involve  a  slanderous 
imputation  in  themselves,  or  upon  which  the  comment  bases  imputations  or  in- 


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786  THOMAS  V.  BRADBURY,  AGNEW  &  CO.         [CHAP.  VI. 

ness  of  the  comment  is  to  be  judged  or  relieve  the  commentator  from 
liability,  if  the  comment  be  malicious,  if,  indeed,  it  can  then  be  de- 
scribed as  comment  at  all.  The  right,  though  shared  by  the  public,  is 
the  right  of  every  individual  who  asserts  it,  and  is,  qua  him,  an  individ- 
ual right  whatever  name  it  be  called  by,  and  comment  by  him  which  is 
colored  by  maUce  cannot  from  his  standpoint  be  deemed  fair.  He,  and 
he  only,  is  the  person  in  whose  motives  the  plaintiff  in  the  libel  action 
is  concerned,  and  if  he,  the  person  sued,  is  proved  to  have  allowed  his 
view  to  be  distorted  by  maUce,  it  is  quite  immaterial  that  somebody 
else  might  without  malice  have  written  an  equally  damnatory  crit- 
icism. The  defendant;  and  not  that  other  person,  is  the  party  sued. 
This  seems  to  me  quite  clear  in  point  of  principle;  but,  as  already 
pointed  out  in  McQiiire  v.  Western  Morning  News  Co.,  [1903]  2  K.  B. 
100,  the  law  continued  to  be  administered  after  Campbell  v.  Spottis- 
woode,  just  as  it  always  had  been  before,  down  to  and  since  Merivale 
V.  Carson.  That  case  decided  nothing  inconsistent  with  the  law  of 
libel  as  thus  administered,  though  each  of  the  learned  judges  expressed 
an  opinion  in  favor  of  the  view  taken  in  the  dicta  I  have  referred  to  of 
Crompton,  J.,  and  Blackburn,  J.,  in  preference  to  that  of  Willes,  J.,  in 
Henwood  v.  Harrison,  L.  R.  7  C.  P.  600.  But,  as  already  pointed  out 
in  McQuire  v.  Western  Morning  News  Co.,  [1903]  2  K.  B.  100,  the 
difference  between  the  two  views  is,  in  the  language  of  Bowen,  L.  J., 
in  Merivale  v.  Carson,  a  difference  in  the  "metaphysical  exposition" 
of  the  right  and  "  is  rather  academical  than  practical.''  I  think  the 
head-note  in  the  last-mentioned  case  is  to  some  extent  the  cause  of 
what  seems  to  me  an  erroneous  impression  as  to  the  effect  of  the 
decision.  The  words  of  that  note  seem  to  suggest  a  difference  of  right, 
under  the  general  law  of  libel,  in  respect  of  communications  made  on 
a  privileged  occasion  and  communications  made  in  the  shape  of  crit- 
icism on  a  matter  of  public  interest.  In  cases  of  privilege,  properly 
so  called,  nothing  that  falls  outside  the  privilege  is  protected  by  it, 
and  if  defamatory  it  must  be  otherwise  justified.  The  occasion  being 
privileged,  the  extent  of  the  privilege  may  vary  according  to  the  na- 

ferences  injurioiis  to  the  plaintiff,  it  is,  I  ihmk^  settled  law  that  the  defence  of  fair 
comment  fails,  unless  the  comment  is  truthful  m  regard  to  its  alle^tion  or  assump- 
tion of  such  facts/'  See  also  the  remarks  of  Buckley,  L.  J.,  m  the  same  case, 
p.  253. 

In  Hubbard  v,  Allyn,  200  Mass.  167,  Rugg,  J.,  said  (p.  170) :  "  The  right  of  the 
defendant  was  not  to  make  false  statements  of  fact  because  the  subject  matter  was 
of  public  interest,  but  only  to  criticise,  discuss  and  comment  upon  the  real  acts  of 
the  plaintiff  and  the  consequences  likely  to  follow  from  them,  or  upon  any  other 
aspect  of  the  case  in  a  reasonable  way.  This  may  be  done  with  seventy.  Ridicule, 
sarcasm  and  invective  may  be  employed.  But  the  basis  must  be  a  fact,  and  not  a 
f£dsehood." 

Nor  does  it  cover  violent  attacks  and  insulting  statements.  Press  Pub.  Co.  v. 
Gillette,  (C.  C.  A.)  229  Fed.  108;  Jozsa  v.  Moroney,  125  La.  813:  Mines  v.  Shu- 
maker,  97  Miss.  669;  Patten  v.  Harpers  Weekly  Corp.,  158  N.  Y.  Supp.  70; 
Hayden  v.  Hasbrouck,  34  R.  I.  556;  Spencer  v.  Looney,  116  Va.  767;  WilUams  v. 
Hicks  Printing  Co.,  159  Wis.  90;  Putnam  v.  Browne,  162  Wis.  524;  Compare 
Dickson  v.  Lights,  (Tex.  Civ.  App.)  170  S.  W.  834.  And  see  Phillips  v.  Brad- 
shaw,  167  Ala.  199. 


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CHAP.  VI.]    THOMAS  V.  BRADBURY,  AGNEW  A   CO.  787 

ture  of  the  case  and  the  limits  of  the  right  or  duty  which  is  the  basis  of 
the  privilege.  But  this  is  precisely  the  position  in  the  case  where  the 
right  exercised  is  on^e  shared  by  the  rest  of  the  pubUc,  and  not  one 
limited  to  an  individual  or  a  class.  The  extent  of  the  right  has  to  be 
ascertained,  and  in  respect  of  any  communication  which  falls  within  it 
the  immunity,  if  it  be  not  absolute,  can  be  displaced  only  by  proof  of 
maUce. .  In  the  case  of  comment  on  Uterary  works  the  occasion  is 
created  by  the  pubUcation,  and  a  right  then  arises  to  criticise  honestly, 
however  adversely.  No  such  occasion  would  arise  in  respect  of  a 
private  unpublished  letter.  If  a  writer  were  to  get  hold  of  a  private 
letter  of  a  well-known  author  and  publish  a  damnatory  article  on  the 
f^uthor's  Uterary  style  and  taste,  as  evidenced  by  the  letter,  it  seems  to 
me  that  he  woiild  have  no  immunity  from  the  ordinary  law  in  respect 
of  defamatory  writings.  The  only  difference,  then,  in  the  l^al  inci- 
dents of  ordinary  privilege,  limited  to  individuals  on  the  one  hand  and 
the  right  in  the  pubhc  to  criticise  on  the  other,  would  seem  to  be  that 
the  one  might,  with  somewhat  less  latitude  than  the  other,  though  not, 
perhaps,  with  perfect  accuracy,  be  described  as  "  privilege."  Now, 
the  head-note  might  possibly  suggest,  at  first  sight  at  all  events, 
particularly  when  it  adds  "  Henwood  v.  Harrison,  L.  R.  7  C.,P.  606, 
dissented  from,'*  that  not  merely  an  academical  difference  in  the 
analysis  of  rights  had  been  expressed,  but  that  there  was  a  difference 
of  substance  in  the  bearing  of  malice  in  the  two  cases  in  respect  of  com- 
mimications  or  criticisms  falling  prima  facie  within  the  right  or  privi- 
lege. The  limits  of  the  right,  as  I  have  already  pointed  out,  may  be, 
and  are,  different,  but  the  law  with  respect  to  communications  that 
prima  facie  fall  within  them  is  the  same.  Proof  of  maUce  may  take  a 
criticism  prima  facie  fair  outside  the  right  of  fair  comment,  just  as  it 
takes  a  commimication  prima  facie  privileged  outside  the  privilege. 
The  particular  allegation  which  was  unprotected  in  Merivale  v.  Carson 
was  never  within  the  "  right  *'  when  the  facts  were  ascertained  by  the 
jury  in  interpreting  the  passage  impugned.  Proof  of  bona  fide  beUef 
was  therefore  irrelevant;  nothing  but  proof  of  the  truth  could  justify 
the  allegation.  If  the  analysis  be  strictly  carried  out  it  will  be  foimd 
that  the  two  rights,  whatever  name  they  are  called  by,  are  governed  by 
precisely  the  same  rules.  The  only  practical  difference  is  that  in  an 
action  based  on  a  criticism  of  a  published  work  the  transaction  begins 
by  the  admission,  on  the  part  of  the  plaintiff,  implied  from  the  aver- 
ment by  hhn  of  publication  of  the  work  criticised,  that  the  comment 
came  into  existence  on  a  protected  occasion.  He  is  placed,  therefore, 
in  precisely  the  same  position  as  he  would  have  been  in  had  he  sued  in 
respect  of  a  defamatory  writing  prima  facie  unprotected  and  therefore 
actionable,  but  had  gone  on  to  aver  facts  which  created  a  privilege 
strictly  so  called.  Beginning  thus  at  this  stage  in  the  transaction,  he 
would  have  accepted  the  onus  of  proving  malice  in  fact.  If  he  had 
veiled  the  fact  that  the  writing  criticised  had  become  matter  of  public 


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788  THOMAS  V.  BRADBURY,  AGNEW  A  CO.         [CHAP.  VI. 

interest  by  publication  it  would  have  been  prima  facie  libellous,  and 
the  defendant  would  have  had  to  plead  such  a  publication  as  would  let 
in  the  right  to  comment  on  a  matter  of  pubUc  interest  in  order  to  bring 
himself  within  the  protection.  This  shows  that  acceptance  of  the 
dicta  imder  discussion  does  not  in  the  slightest  degree  affect  the  place 
of  malice  in  the  law. of  libel,  and  that  it  is  only  by  leaving  out  one  step 
in  the  analyBis  that  the  pubUc  right,  as  distinguished  from  the  privi- 
lege, may  appear  to  carry  with  it  different  incidents.  There  is  not  even 
any  decision  that  the  word  privilege,  as  used  in  Henwood  v.  Harrison, 
to  which  Lord  Esher  was  himself  a  party,  is  not  as  good  a  word  as  any 
substitute  that  can  be  suggested  to  express  the  right  by  which,  in  cer- 
tain circumstances,  writing  defamatory  of  another  person  may  be 
published  with  impunity,  because  the  presumption  of  malice  is  negsr 
tived.  For  the  reasons  I  have  given  the  difference  is  one  of  words 
only,  and  could  not  be  a  matter  of  legal  decision. 

I  have  thought  it  worth  while  to  sift  this  contention  somewhat  elab- 
orately, as  it  is  apparently  based  upon  a  misconception  which  seems 
to  have  a  tendency  to  repeat  itself  as  to  the  effect  of  Merivale  v,  Car- 
son, on  the  law  of  libel.  But  the  contention  of  the  defendants  can  be 
met,  not  by  reference  to  principle  only,  but  also  by  direct  authority. 
To  go  back  to  the  source  itself  of  the  supposed  new  departing,  Camp- 
bell V.  Spottiswoode,  Blackburn,  J.,  sajrs:  "  Honest  belief  may  be  an 
ingredient  to  be  taken  into  consideration  by  the  jury  in  determining 
whether  the  pubUcation  is  a  libel,  that  is,  whether  it  exceeds  the  lim- 
its of  a  fair  and  proper  consent."  In  Merivale  v.  Carson  itself  Lord 
Esher,  M.  R.,  deals  with  the  question.  He  sayB:  ''  It  is  said  that  if 
in  some  other  case  the  alleged  libel  would  not  be  beyond  the  limits 
of  fair  criticism,  and  it  could  be  shown  that  the  defendant  was  not 
really  criticising  the  work,  but  was  writing  with  an  indirect  and  dis- 
honest intention  to  injure  the  plaintiffs  still  the  motive  would  not 
make  the  criticism  a  libel.  I  am  inclined  to  thjnj^  that  it  would,  and 
for  this  reason,  that  the  comment  would  not  tlien  really  be  a  criti- 
cism of  the  work.  The  mind  of  the  writer  would  not  be  that  of  a 
critic,  but  he  would  be  actuated  by  an  intention  to  injure  the  author." 
Though  the  learned  judge  in  this  passage  expresses  only  an  inclination 
of  opinion,  the  reason  given  seems  to  me  to  be  conclusive.  But  in  a 
very  recent  case  in  this  court,  the  point  is  actually  decided:  Pljmaouth 
Mutual  Cooperative  and  Industrial  Society  v.  Traders'  Publishing 
Association,  [1906]  1  K.  B.  403.  The  question  there  was  "whether  an 
interrogatory  addressed  to  the  state  of  mind  of  the  defendant,  who  had 
pleaded  fair  comment  in  an  action  of  Ubel,  was  admissible.  The  court 
decided  that  it  was,  following  a  previous  decision  of  this  court  in  a 
case  of  privilege  strictly  so  called^  Vaughan  Williams,  L.  J.,  referring 
to  White  &  Co.  v.  Credit  Reform  Association  and  Credit  Index,  [1905] 
1  K.  B.  663,  says  at  page  413  of  the  report:  "  It  seems  to  me  that  that 
case  shows  that  an  interrogatory  of  this  kind  is  just  as  relevant  and 


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CHAP.  VI.]    THOMAS  V.  BRADBURY,  AGNEW  &   CO.  789 

admissible  in  a  case  where  the  defence  is  fair  comment  as  in  one  where 
it  is  privilege.  In  either  case  the  question  raised  is  really  as  to  the 
state  of  mind  of  the  defendant  when  he  published  the  alleged  libel,  the 
question  being  in  the  one  case  whether  he  published  it  in  the  spirit  of 
malice,  in  the  other  whether  he  published  it  in  the  spirit  of  unfairness, 
vin  either  case,  I  think  such  an  interrogatory  as  the  one  now  in  ques- 
tion is  admissible."  Fletcher  Moulton,  L.  J.,  says  at  page  418  of  the 
report:  ''  I  son  clear  that,  both  in  cases  in  which  the  defence  of  privi- 
lege and  in  those  in  which  the  defence  of  fair  comment  is  set  up,  the 
state  of  mind  of  the  defendant  when  he  published  the  alleged  libel  is  a 
matter  directly  in  issue.'* 

It  is,  of  course,  possible  for  a  person  to  have  a  spite  against  another 
and  yet  to  bring  a  perfectly  dispassionate  judgment  to  bear  upon  his 
literary  merits;  but,  given  the  existence  of  malice,  it  must  be  for  the 
jury  to  say  whether  it  has  warped  his  judgment.  Comment  distorted 
by  malice  cannot  in  my  opinion  be  fair  on  the  part  of  the  person  who 
makes  it.  I  am  of  opinion,  therefore,  that  evidence  of  malice  actu- 
ating the  defendant  was  admissible,  and  that  the  learned  judge  was 
right  in  letting  the  evidence  in  this  case  go  to  the  jury.  But  I  am  also 
of  opinion  on  a  close' examination  of  the  allied  libel  that,  apart  from 
the  extrinsic  evidence  of  malice,  the  learned  judge  could  not  have 
withdrawn  the  case  from  the  jury.  One  point  made  by  the  plaintiff 
would,  I  think,  of  itself  suffice  to  establish  this  position.  The  defend- 
ant Lucy  says  in  the  alleged  libel ''  it  is  plain  to  see  from  the  few  un- 
mutilated  extracts  .  .  .  that  the  materials  at  hand  for  a  delightful 
biography  were  abundant."  This  statement  was  described  by  the 
plaintiSflf  in  a  letter  to  the  editor  of  Punch  as  "  simply  imtrue."  A 
short  statement  was  thereupon  published  in  the  issue  of  December  7, 
in  which  the  defendant,  while  accepting  the  plaintiff's  statement  as 
to  the  paucity  of  materials,  quotes  a  passage  from  the  preface  to  the 
book  dealing  with  the  existence  of  materials,  and  concludes  thus: 
"  Toby,  M.  P.,  had  at  the  time  of  writing  no  knowledge  of  the  subject 
beyond  the  definite  statements  quoted  in  the  biographer's  own  words. 
He  regrets  that,  accepting  them  in  their  ordinary  sense,  he  received 
and  conveyed  an  impression  of  Mr.  Thomas's  literary  methods  which 
turns  out  to  have  been  erroneous."  He  is  thus  in  the  difficulty  of  hav- 
ing to  admit  a  misstatement  of  fact  in  respect  of  which,  to  put  it  at 
the  lowest,  a  question  must  arise  for  the  jury  whether  the  passage  he 
relied  upon  justifies  the  statement.  I  think  also  that  the  learned 
judge  could  not  have  properly  held  that  there  was  no  evidence  fit  for 
the  consideration  of  the  jury  as  to  some  of  the  innuendoes  averring  im- 
putations of  discreditable  motives.  I  am  of  opinion,  therefore,  that 
we  could  not  direct  judgment  for  the  defendants  without  usurping  the 
functions  of  the  jury.  Neither  can  we  say  that  the  evidence  is  so 
slight  as  to  justify  us  in  ordering  a  new  trial  on  the  ground  that  the 
verdict  is  against  the  weight  of  the  evidence. 


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790  JACKSON  V.  HOPPERTON  [CHAP.  VI. 

Cozens-Hardy,  L.  J.    I  agree. 

Sir  Gorell  Barnes,  President.    I  have  had  an  opportunity  of 
reading  the  judgment  of  the  Master  of  the  Rolls,  and  I  agree  with  it. 

Appeal  dismissed} 


JACKSON  V.  HOPPERTON 

In  the  Common  Pleas,  May  25,  1864. 

Reported  in  12  Weekly  Eeporter,  913.« 

This  case  was  tried  before  WiUiams,  J.,  at  Guildhall,  in  the  sittings  after 
last  Easter  Term. 

The  declaration  stated  that, ''  before  the  speaking,  &c.,  the  defendant  had 
been  a  man-milliner,  and  the  plaintiff  had  been  in  his  service  and  employ  as  a 
saleswoman  and  assistant,  and  the  defendant  falsely,  &c.,  spoke,  &c.,  of  the 
plaintiff  the  words  '  Miss  Jackson  '  (thereby  meaning  the  plaintiff)  '  is  dis- 
honest,' thereby  meaning  that  the  plaintiff  was  a  thief  and  a  dishonest  servant, 
and  had  been  guilty  of  fraudulent  conduct  in  her  capacity  as  such  saleswoman, 
&c.,  whereby,  &c.,  the  plaintiff  was  injured  in  credit  and  reputation,  and  cer- 
tain persons  trading  imder  the  name  and  style  of  *  Capper,  Son,  &  Co.'  refused 
to  employ  the  plaintiff  as  saleswoman  and  servant  in  their  employ,  as  they 
otherwise  would  have  done,  and  the  plaintiff  lost  and  was  deprived  of  her  said 
situation  in  the  employ  of  the  said  '  Capper,  Son,  &  Co.,'  and  has  been  for  a 
long  space  of  time  unable  to  obtain  employment,  &c." 

^  Robinson  v.  Coulter,  215  Mass.  566;  Tawney  v.  Simonson,  109  Minn.  341 
Accord. 

The  burden  is  on  the  plaintiff  to  show  malice,  not  on  the  defendant  to  show  good 
faith.  Jenoure  «.  Dehnece,  [1891]  A.  C.  73;  Davis  v,  Hearst,  160  Cal.  143;  Locke 
V.  Bradstreet  Co..  22  Fed.  771;  Henamens  v.  Nelson,  138  N.  Y.  617;  Haft  v,  New- 
castle Bank,  19  App.  Div.  423;  Strode  v,  Clement,  90  Va.  663. 

Definitions  of  *^ malice.**  Doane  v.  Grew,  220  Mass.  171;  Peake  v.  Taubman, 
251  Mo.  390.    See  Mamey  v.  Joseph,  94  Kan.  18. 

**  If  proof  of  a  malevolent  motive  would  rebut  the  privilege,  which  we  do  not  de- 
cide, nothing  less  than  that  would  do,  so  far  as  malice  is  concerned.  It  is  true,  as  is 
said  in  the  very  careful  brief  for  the  plaintiff,  that  in  most  connections  malice 
means  only  knowledge  of  facts  sufficient  to  show  that  the  contemplated  act  is  very 
likely  to  Have  injurious  consequences.  Apart  from  statute  it  generally  means  no 
more  when  the  question  is  what  is  sufficient  prima  facie  to  charge  a  defendant. 
Burt  V.  Advertiser  Newspaper  Co.,  154  Mass.  238,  245.  But  sometimes  the  de- 
fence is  not  that  the  damage  was  not  to  be  foreseen,  but  rests  on  what  in  substance 
is  a  privilege,  whether  of  a  kind  usually  pleaded  as  such  or  not,  that  is  to  say,  on  a 
right  to  iimict  the  damage  even  knowmgly.  In  such  cases,  if  malice  in  any  sense 
makes  a  difference,  as  distinguished  from  excess  over  what  was  reasonable  or  need- 
ful to  do  or  say  under  the  cu*cumstances,  which  often  is  included  under  the  same 
word,  Gott  V.  Pulsifer,  122  Mass.  235,  239,  it  means  that  the  defendant  is  not 
within  the  privilege  because  he  was  not  acting  in  bona  fide  answer  to  the  needs  of 
the  occasion,  but  outside  of  it  from  a  wish  to  do  harm.  See  Wren  v.  Wdld,  L.  R. 
4  Q.  B.  730,  736,  736;  Clark  v.  Molyneux,  3  Q.  B.  D.  237,  246,  247."  Holmes, 
C.  J.,  in  Squires  v.  Wason  Mfg.  Co.,  182  Mass.  137,  141. 

See  Advertiser  Co.  v.  Jones,  169  Ala.  196,  670;  Davis  v.  Hearst,  160  Cal.  143. 

Reckleae  republication  witkovi  inquiry.  Houston  Chronicle  Pub.  Co.  v.  Wegner, 
(Tex.  av.  App.)  182  S.  W.  45. 

"  MaUce  *^on  the  face  ofjmblication.  Ashford  v.  Evening  Star  Co.,  41  App.  D.  C. 
395;  Dickson  t^.  Lights,  (Tex.  Civ.  App.)  170  S.  W.  834. 

*  16  C.  B.  N.  s.  829,  8.  c. 


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CHAP.  VI.]  JACKSON  V.  HOPPERTON  791 

Plea  —  Not  guilty. 

The  plaintiff  entered  the  defendant's  service  on  December  Ist,  1862,  and  re- 
mained in  his  employ  till  October,  1863,  when  she  left,  he  having  accused  her 
of  taking  some  money,  and  a  few  other  things.  Shortly  after  she  left,  she 
returned  for  her  boxes,  and  asked  him  for  her  wages,  and  he  then  accused  her 
of  taking  £3  10^.,  but  said, ''  if  you  had  come  back,  I  should  have  said  nothing 
about  it."  A  few  days  after  he  paid  her  her  wages.  Two  or  three  days  after 
this,  she  applied  to  the  Messrs.  Capper,  Son  &  Co.,  for  a  situation;  and  she  in- 
formed the  defendant  that  a  young  lady  was  coming  to  him  for  a  reference,  and 
he  then  said,  "  I  will  give  you  no  reference,  but  if  you  own  that  you  took  the 
money  I  will  give  you  a  reference."  The  lady  from  Messrs.  Capper,  Son,  & 
Co.  called  at  the  defendant's  and  asked  him  for  the  plaintiff's  character,  when 
he  spoke  the  words  in  the  declaration,  and  said  he  would  not  give  her  a  char- 
acter, she  was  dishonest,  and  that  he  had  money  and  goods  which  he  could 
prove  she  had  taken.  The  plaintiff  did  not  get  the  situation,  the  wages  for 
which  were  £50  a  year  and  board.  The  jury^ound  a  verdict  for  the  plaintiff 
for  £60. 

Mr,  Chambers^  Q.  C.  (Hance  with  him),  now  moved  for  a  rule  calling  on  the 
plaintiff  to  show  cause  why  this  verdict  should  not  be  set  aside,  and  instead 
thereof  a  nonsuit  entered,  on  the  ground  that  there  was  no  evidence  of  express 
malice;  or  for  a  new  trial,  on  the  grounds  that  the  verdict  was  against  the  evi- 
dence, and  that  the  damages  were  excessive. 

Erle,  C.  J.  I  am  of  opinion  that  there  should  be  no  rule  in  this  case.  This 
was  an  action  for  defamation  of  character,  and  evidence  was  adduced  on  the 
part  of  the  defendant  to  show  that  the  defamatory  words  were  uttered  on  an 
occasion  which  justified  the  \j^  of  them.  The  question  left  to  the  jury  was, 
whether  the  defendant  believed  the  imputation  of  dishonesty,  which  he  made 
against  the  plaintiff,  was  true  or  not,  and  they  found  he  did  not  believe  it  to 
be  so,  and  the  judge  is  satisfied  with  their  answer.  I  think  this  was  a  neces- 
sary question  to  be  left  to  them.  Then,  as  to  the  damages  being  excessive,  the 
plaintiff  lost  a  situation  for  which  she  would  have  received  £50  a  year,  and  it 
cannot  be  said  that  £60  is  too  large  a  sum  as  compensation  for  that  loss.  Mr. 
Chambers  also  moved  on  the  ground  that  it  was  the  judge's  duty  to  nonsuit 
the  plaintiff  at  the  close  of  the  plaintiff's  case;  but  she  tried  to  get  another 
situation,  and  a  lady  called  on  the  defendant  for  her  character,  and  he  then 
spoke  to  the  lady  the  words  complained  of;  where  words  are  spoken  on  such  an 
occasion  as  that,  if  the  person  uttering  them  believe  them  to  be  true,  and  there 
be  no  further  evidence  to  show  a  probability  that  they  were  spoken  malici- 
ously, it  is  the  duty  of  the  judge  to  nonsuit  the  plaintiff.  The  cases  of  Taylor 
V.  Hawkins,  16  Q.  B.  308,  and  SomerviUe  v,  Hawkins,  10  C.  B.  583,  show  what 
is  the  law  under  such  circumstances,  and  lay  down  that,  if  the  plaintiff  give 
evidence  from  which  the  jury  might  infer  malice,  such  as,  that  the  defendant 
made  the  imputations  not  believing  them  to  be  true,  or  that  at  the  time  when 
he  spoke  the  words  he  did  not  believe  he  was  in  the  discharge  of  a  duty,  the 
question  of  malice  ought  to  be  left  to  the  jury;  and  it  appears  from  the  old 
cases,  and  also  the  two  cases  above  cited,  that  defamation  carries  with  it  a  pre- 
sumption of  malice,  and  that  it  is  prima  fade  evidence  of  malice,  but  the  occa- 
sion on  which  the  defamatory  words  are  spoken  may  rebut  the  prima  facie  in- 
ference of  malice,  and  then  additional  evidence  may  be  given  to  show  that 
there  was  malice,  and  the  jury  are  to  find  on  that  evidence  and  on  the  libel 
itself  whether  there  be  malice.   In  the  case  of  Wright  v.  Woodgate,  2  C.  M.  & 


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792  DAVIS  V.  SHEPSTONE  [CHAP.  VI. 

R.  573,  it  is  thus  laid  down  by  Parke,  B.,  at  p.  577:  "  The  proper  meaning  of  a 
privileged  communication  is  only  this,  that  the  occasion  on  which  the  com- 
mum'cation  was  made  rebuts  the  inference  prima  facie  arising  from  a  state- 
ment prejudicial  to  the  character  of  the  plaintiff,  and  puts  it  upon  him  to  prove 
that  there  wa&  malice;  in  fact,  that  the  defendant  was  actuated  by  motives  of 
personal  spite  or  ill-will,  independent  of  the  occasion  on  which  the  communi- 
cation was  made.  In  the  present  case,  it  became,  in  my  opinion,  incumbent 
upon  the  plaintiff  to  show  malice  in  fact.  This  he  might  have  made  out,  either 
from  the  language  of  the  letter  itself,  or  by  extrinsic  evidence,  as  by  proof  of 
the  conduct  or  expressions  of  the  defendant,  showing  that  he  was  actuated  by 
a  motive  of  personal  ill-will."  And  in  Taylor  v,  Hawkins,  Lord  Campbell  lays 
it  down  at  p.  321  thus:  *'  The  rule  is,  that,  if  the  occasion  be  such  as  repels  the 
presumption  of  malice,  the  communication  is  privileged,  and  the  plaintiff 
must  then,  if  he  can,  give  evidence  of  malice."  I  think  that  the  fact  of  his 
charging  her  with  stealing  the  £3  10«.,  and,  not  making  that  charge  till  after 
she  had  threatened  to  leave,  and  then  the  fact  of  his  telling  her  that  if  she  had 
come  back  he  should  have  said  nothing  about  it,  and  that  if  she  owned  she 
took  it  he  would  give  her  a  reference,  were  sufficient  facts  to  justify  the  jury 
in  inferring  that  he  was  not  performing  the  important  duty  between  man  and 
man,  of  stating  what  he  believed  to  be  the  plaintiff's  true  character,  when  he 
spoke  the  woids  which  are  the  subject  of  tiiis  action. 
WiLUAMS,  WiLLBS,  and  Btlbs,  JJ.,  concurred.  Rvie  refused.^ 


DAVIS  V.  SHEPSTONE 
In  the  Privy  Council,  March  5, 1886. 
Reported  in  11  Appeal  Cases,  187. 

The  judgment  of  their  lordships  was  delivered  by 

Lord  Herschell,  L.  C*  This  is  an  appeal  from  a  judgment  of  the 
Supreme  Court  of  the  Colony  of  Natal  refusing  a  new  trial  in  an  action 
brought  against  the  appellants  in  which  the  respondent  obtained  a 
verdict  for  £500  damages. 

The  action  was  brought  to  recover  damages  for  alleged  libels  pub- 
lished by  the  appellants  in  the  "  Natal  Witness  "  newspaper  in  the 
months  of  March  and  May,  1883. 

The  respondent  was,  in  December,  1882,  appointed  Resident  Com- 
missioner in  Zululand,  and  proceeded  in  the  discharge  of  his  duties  to 
the  Zulu  reserve  territory.  In  the  month  of  March,  1883,  the  appel- 
lants published  in  an  issue  of  their  newspaper  serious  allegations  with 
reference  to  the  conduct  of  the  respondent  whilst  in  the  execution  of 
his  oflSce  in  the  reserve  territory.    They  stated  that  he  had  not  only 

1  NeviU  V.  Fine  Arts  Co.,  [1895]  2  Q.  B.  166;  HoUenbeck  v.  Ristine,  105  la  488: 
Children  v.  Shinn,  168  la.  531;  Atwill  v.  Mackintosh,  120  Mass.  177;  Wagner  v. 
Scott,  164  Mo.  289;  McGaw  v.  Hamflton,  184  Pa.  St.  108;  Hellstem  v.  Katser,  103 
Wis.  391  Accord.  Compare  Davis  v.  New  England  Pub.  Co..  203  Mass.  470: 
Doane  v.  Grew,  220  Mass.  171. 

*  Only  the  opinion  of  the  court  is  given. 


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CHAP.  VI.]  DAVIS  V.  SHEPSTONB  793 

himself  violently  assaulted  a  Zulu  chief,  but  had  set  on  his  native 
policemen  to  assault  others.  Upon  the  assumption  that  these  state- 
ments were  true,  they  commented  upon  his  conduct  in  terms  of  great 
severity,  observing,  "  We  have  always  regarded  Mr.  Shepstone  as  a 
most  unfit  man  to  send  to  Zululand,  if  for  no  other  reason  than  this, 
that  the  Zulus  entertain  towards  him  neither  respect  nor  confidence. 
To  these  disqualifications  he  has  now,  if  our  information  is  correct, 
added  another  which  is  far  more  damnatory.  Such  an  act  as  he  has 
now  been  guilty  of  cannot  be  passed  over,  if  any  kind  of  friendly  rela- 
tions are  to  be  maintained  between  the  colony  and  Zululand.  There 
are  difficulties  enough  in  that  direction  without  need  for  them  to  be 
increased  by  the  headstrong  and  almost  insane  imprudence  and  want 
of  self-respect  of  the  official  who  unworthily  represents  the  government 
of  the  Queen." 

In  the  same  issue,  under  the  heading  "  Zululand,"  there  appeared  a 
statement  that  four  messengers  had  come  from  Natal  to  Zululand, 
from  whom  details  had  been  obtained  of  the  respondent's  treatment  of 
certain  chiefs  of  the  reserved  territory  who  had  visited  Cetewayo,  and, 
what  purported  to  be  the  account  derived  from  these  messengers  of  the 
assault  and  abusive  language  of  which  the  respondent  had  been  guilty, 
was  given  in  detail. 

On  the  16th  of  May,  1883,  the  appellants  published  a  further  ar- 
ticle, relating  to  the  respondent,  which  conmienced  as  follows:  — 
"  Some  time  ago  we  stated  in  these  columns  that  Mr.  John  Shepstone, 
whilst  in  Zululand,' had  committed  a  most  unprovoked  and  altogether 
incomprehensible  assault  upon  certain  Zulu  chiefs.  At  the  time  the 
statement  was  made,  a  good  deal  of  doubt  was  thrown  upon  the  truth 
of  the  story.  We  are  now  in  a  position  to  make  public  full  details 
of  the  affair,  which  the  closest  investigation  will  prove  to  be  correct. 
A  representative  of  this  journal,  learning  that  a  deputation  had  come 
to  Natal  to  complain  of  the  attack,  met  five  of  the  nxmiber,  and  in  the 
presence  of  the  competent  interpreters  took  down  the  stories  of  each 
man." 

The  article  then  gave  at  length  the  statements  so  taken  down,  which 
disclosed,  if  true,  the  grossest  misconduct  on  the  part  of  the  respond- 
ent. It  was  in  respect  of  these  publications  of  the  appellants  that  the 
action  was  brought  by  the  respondent. 

The  appellants  by  their  defence  averred  that  the  conduct  of  the 
plaintiff  as  British  Resident  Commissioner  was  a  matter  of  general 
public  interest  affecting  the  territory  of  Natal,  and  that  the  alleged 
libels  constituted  a  fair  and  accurate  report  of  the  information  brought 
to  the  Governor  of  Natal,  and  published  in  the  colony  by  messengers 
from  Zululand  and  its  king  as  to  the  conduct  of  the  plaintiff  in  the  dis- 
charge of  the  duties  of  his  office,  and  a  fair  and  impartial  conmient . 
upon  the  conduct  of  the  plaintiff  in  his  public  capacity  published  bona 
fide  and  without  malice. 


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794  DAVIS  V.  SHEPSTONE  [CHAP.  VI. 

The  case  came  on  for  trial  before  Mr.  Justice  Wragg  and  a  jury  on 
the  4th  of  September,  1883,  when  it  was  proved  that  the  allegations  of 
misconduct  made  against  Mr.  Shepstone  were  absolutely  without 
foundation,  and  no  attempt  was  made  to  support  them  by  evidence. 
It  appeared  that  the  messengers  from  whom  the  statements  contained 
in  the  issue  in  March  were  derived  had  come  from  Zululand  to  see  the 
Bishop  of  Natal,  and  that  their  statements  had  been  conveyed  to  the 
editor  of  a  newspaper  by  a  letter  from  the  bishop.  The  statements 
contained  in  the  issue  of  May  were  commimicated  by  a  Mr.  Watson, 
who  was  connected  with  the  staff  of  the  newspaper,  and  who  had 
sought  and  obtained  an  interview  with  certain  Zidus  when  on  their 
way  to  convey  a  message  from  the  king  to  the  Governor  of  Natal. 

At  the  close  of  the  evidence  the  learned  judge  summed  up  the  case  to 
the  jury,  who  returned  a  verdict  for  the  plaintiff,  the  present  respond- 
ent, for  £500. 

Application  was  afterwards  made  to  the  Supreme  Court  to  grant  a 
new  trial,  but  this  application  was  refused,  and  the  present  appeal  was 
then  brought.  The  appellants  rested  their  appeal  upon  two  grounds, 
first,  that  the  learned  judge  misdirected  the  jury  in  leaving  to  them 
the  question  of  privilege  and  in  not  telling  them  that  the  occasion  was 
a  privileged  one.  The  second  ground  insisted  upon  was  that  the  dam- 
ages were  excessive.  Their  Lordships  are  of  opinion  that  the  con- 
tention that  the  learned  judge  ought  to  have  told  the  jury  that  the 
occasion  was  a  privileged  one,  and  that  the  plaintiff  could  only  succeed 
on  proof  of  express  malice,  is  not  well  founded. 

There  is  no  doubt  that  the  pubUc  acts  of  a  public  man  may  lawfully 
be  made  the  subject  of  fair  comment  or  criticism,  not  only  by  the  press, 
but  by  all  members  of  the  public.  But  the  distinction  cannot  be  too 
clearly  borne  in  mind  between  comment  or  criticism  and  allegations  of 
fact,  such  as  that  disgracefid  acts  have  been  committed,  or  discredit- 
able language  used.  It  is  one  thing  to  comment  upon  or  criticise,  even 
with  severity,  the  acknowledged  or  proved  acts  of  a  pubUc  man,  and- 
quite  another  to  assert  that  he  has  been  guilty  of  particular  acts  of 
misconduct.* 

1  Parmiter  v.  Coupland,  6  M.  &  W.  105;  Odger  «.  Mortimer,  28  L.  T.  Rep.  472; 

gueen  v.  Garden,  5  Q.  B.  Div.  1,  8;  Bryce  v.  Rusden,  2  T.  L.  R.  435:  Duplany  v. 
>avis,  3  T.  L.  R.  184;  R.  v.  Flowers,  44  J.  P.  377,  per  Field,  J. :  LeFroy  t^.  Bum- 
side,  L.  R.  4  Ir.  556,  565, 566;  Stewart  v.  McKinley,  11  Vict.  L.  R.  802:  Browne  t». 
McKinley,  12  Vict.  L.  R.  240;  Smith  v.  Tribune  Co.,  4  Biss.  477;  McDonald  v. 
Woodruff,  2  Dill.  244;  Hallam  v.  Post  Co.,  65  Fed.  456,  59  Fed.  530;  Parsons  v. 
Age  Herald  Pub.  Co.,  181  Ala.  439:  Jarman  v,  Rea,  137  Cal.  339;  Dauphiny 
«.  Buhne.  153  Cal.  757;  Star  Co.  v.  Donahoe,  (Del.)  58  Atl.  513;  Jones  v.  Town- 
send,  21  Fla.  431;  Rearick  v,  WUcox.  81  lU.  77:  Klos  v.  Zahorik,  113  la.  161;  Ott 
V.  Murphy,  160  la.  730;  Bearce  v.  Bass,  88  Me.  521;  Negley  v.  Farrow,  60  Md. 
158;  Conmionwealth  v.  Clap,  4  Mass.  163, 169  (semble)'  Curtis  v,  Mussey,  6  Gray, 
261 ;  Burt  ».  Advertiser  Co.,  154  Mass.  238  (compare  Sillars  v.  Collier,  151  Mass. 
50);  Hubbard  v.  Allyn,  200  Mass.  166;  Foster  v.  Scripps,  39  Mich.  376;  Bronson 
V.  Bruce,  59  Mich.  467;  Bourreseau  ».  Detroit  Co.,  63  Mich.  425;  Wheaton  v. 
Beecher,  66  Mich.  307;  Belknap  v.  Ball,  83  Mich.  583;  Hay  v.  Reid,  85  Mich.  296; 
Smurthwaite  v.  News  Co.,  124  Mich.  377;  Aldrich  v.  Press  Co.,  9  Minn.  133  (but 


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CHAP.  VI.]  DAVIS  V.  SHEPSTONE  795 

In  the  present  case  the  appellants,  in  the  passages  which  were  com- 
plained of  as  libellous,  charged  the  respondent,  as  now  appears  without 
foundation,  with  having  been  guilty  of  specific  acts  of  misconduct, 
and  then  proceeded,  on  the  assumption  that  the  charges  were  true,  to 
comment  upon  his  proceedings  in  language  in  the  highest  degree  off  en- 
see,  contra,  Marks  v.  Baker,  28  Minn.  162);  Smith  v,  Bumis,  106  Mo.  94;  State  v. 
Schmitt,  49  N.  J.  Law,  579;  Lewis  v.  Few,  6  Johns.  1;  Root  v.  King,  7  Cow.  613; 
Littlejohn  v.  Greeley,  13  Abb.  Pr.  41;  Hamilton  v,  Eno,  81  N.  Y.  116;  Mattice  v. 
Wilcox,  147  N.  Y.  624;  Hoey  v.  New  York  Times  Co.,  138  App.  Div.  149;  UUrich 
V.  N.  Y.  Co.,  23  Misc.  168:  Seely  v.  Blair,  Wri^t,  (Ohio)  358,  683;  Post  Co.  v. 
Moloney,  50  Ohio  St.  71;  Upton  v.  Hume,  24  Or.  420;  Barr  v,  Moore,  87  Pa.  St. 
385;  Brewer  v,  Weakley,  2  Overt.  99;  Banner  Co.  v.  State,  16  Lea.  176;  Democrat 
Co.  V,  Jones,  83  Tex.  302:  Sweeney  v.  Baker,  13  W.  Va.  158:  Spiering  v,  Andrae, 
45  Wis.  330;  Eviston  v,  C5ramer,  57  Wis.  570;  Gagen  v.  Dawley,  162  Wis.  152;  D. 
Ward  V.  Derrington,  14  S.  Aust.  L.  R.  35;  Haselgrove  v.  King,  14  S.  Aust.  L.  R. 
192  Accord, 

Mott  V.  Dawson,  46  la.  533;  Bays  v,  Hmit,  60  la.  251  (but  see  State  v,  Haskins, 
109  la.  656,  658,  and  Morse  v.  Printing  Co.,  124  la.  707,  723);  State  v.  Balch,  31 
Kan.  465;  Coleman  v,  McLennan,  78  ICan.  711;  Marks  v.  Baker,  28  Minn.  162; 
State  V.  Bumham,  9  N.  H.  34;  Neeb  v.  Hope,  111  Pa.  St.  145;  Briggs  v,  Garrett, 
111  Pa.  St.  404;  Press  Co.  v.  Stewart,  119  Pa.  St.  584;  Jackson  v.  Pittsburgh 
Times,  152  Pa.  St.  406;  Ross  v.  Ward,  14  S.  D.  240;  Boucher  v.  Clark  Co.,  14 
S.  D.  72  Contra. 

See  Palmer  v.  Concord,  48  N.  H.  211. 

In  Burt  V,  Advertiser  Co.,  154  Mass.  238,  Holmes,  J.,  said :  "  But  there  is  an  im- 
portant distinction  to  be  noticed  between  the  so-called  privilege  of  fair  criticism 
upon  matters  of  public  interest,  and  the  privilege  existing  in  the  case,  for  instance, 
ot  answers  to  inquiries  about  the  character  of  a  servant.  In  the  latter  case,  a  bona 
fide  statement  not  in  excess  of  the  occasion  is  privileged,  although  it  turns  out  to  be 
false.  In  the  former,  what  is  privileged,  if  that  is  the  proper  t^rm,  is  criticism,  not 
statement,  and  however  it  might  be  u  a  person  merely  quoted  or  referred  to  a  state- 
ment as  made  by  others,  and  gave  it  no  new  sanction,  if  he  takes  upon  himself  in 
his  own  person  to  allege  facts  otherwise  libellous,  he  will  not  be  privileged  if  these 
facts  are  not  true.  The  reason  for  the  distinction  lies  in  the  different  nature  and 
dc»gree  of  the  exigency  and  of  the  damage  in  the  two  cases.  In  these,  as  in  manv 
other  instances,  the  law  has  to  draw  a  line  between  conflicting  interests,  both 
intrinsically  meritorious.  When  private  inquiries  are  made  about  a  private  per- 
son, a  servant,  for  example,  it  is  often  impossible  to  answer  them  properly  without 
stating  facts,  and  those  who  settled  the  law  thought  it  more  important  to  preserve  a 
reasonable  freedom  in  ^ving  necessary  information  than  to  insure  people  against 
occasional  unintended  m justice,  confined  as  it  generally  is  to  one  or  two  persons. 
But  what  tiie  interest  of  private  citizens  in  public  matters  requires  is  freedom  of 
discussion  rather  than  of  statement.  Moreover,  the  statements  about  such  matters 
which  come  before  the  courts  are  generally  public  statements,  where  the  harm  done 
by  a  fidsehood  is  much  greater  tmin  in  the  other  case.  If  one  private  citizen  wrote 
to  another  that  a  high  official  had  taken  a  bribe,  no  one  would  think  good  faith  a 
sufficient  answer  to  an  action.  He  stands  no  better,  certainly,  when  He  publishes 
his  writing  to  the  world  through  a  newspaper,  and  the  newspaper  itself  stands  no 
better  tlum  the  writer.    SheckeU  v.  Jackson,  10  Cush.  25,  2o.''^ 

Participants  in  legal  proceedings  are  legitimate  subjects  for  comment  if  restricted 
to  their  conduct  therein.  Rex  v.  White,  1  Camp.  359;  Seymour  v.  Butterworth,  3 
F.  &  F.  372;  Hedley  v.^arlow,  4  F.  &  F.  224;  Woodgate  v.  Ridout,  4  F.  &  F.  202; 
Hibbins  v.  Lee,  4  F.  A  F.  243;  Risk  Allah  Bey  v.  Whitehurst,  18  L.  T.  Rep.  615; 
R^.  V,  Sullivan,  11  Cox  C.  C.  44,  57;  Kane  v,  Mulvany,  Ir.  R.  2  C.  L.  402:  Miner 
V,  Detroit  Co.,  49  Mich.  358.  See  also  KeUy  v.  Tinling,  L.  R.  1  Q.  B.  699  (church- 
warden); Harle  v,  CatheraU,  14  L.  T.  Rep.  801  (waywarden). 

Matters  not  of  pMic  interest.  The  right  of  comment  was  denied  in  Latimer  v. 
Western  Co.,  25  L;  T.  Rep.  44;  Hogan  v.  Sutton,  16  W.  R.  127;  Wilson  v.  Fitch,  41 
Cal.  363. 

See  also  Heame  v.  StoweU,  12  A.  A  E.  719:  Gathercole  v.  MiaU,  15  M.  A  W.  319; 
Walker  v.  Brogden,  19  C.  B.  n.  s.  65;  Booth  v.  Briscoe,  2  Q.  B.  Div.  496. 


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796  DAVIS  V.  SHEPSTONE  [CHAP.  VI, 

sive  and  injurious;  not  only  so,  but  they  themselves  vouched  for  the 
statements  by  asserting  that  though  some  doubt  had  been  thrown 
upon  the  truth  of  the  story,  the  closest  investigation  would  prove  it  to 
be  correct.  In  their  Lordships'  opinion  there  is  no  warrant  for  the  doc- 
trine that  defamatory  matter  thus  published  is  r^arded  by  the  law  as 
the  subject  of  any  privilege. 

It  was  insisted  by  the  counsel  for  the  appellants  that  the  pub- 
Ucations  were  privileged,  as  being  a  fair  and  accinute  report  of  the 
statements  made  by  certain  messengers  from  King  Cetewayo  upon  a 
subject  of  public  importance.  It  has,  indeed,  been  held  that  fair  and 
accurate  reports  of  proceedings  in  parliament  and  in  courts  of  justice 
are  privileged,  even  though  they  contain  defamatory  matter  affecting 
the  character  of  individuals. 

But  in  the  case  of  Purcell  v.  Sowler  the  Court  of  Appeal  expressly 
refused  to  extend  the  privilege  even  to  the  report  of  a  meeting  of  poor 
law  guardians,  at  which  accusations  of  misconduct  were  made  against 
their  medical  oflScer.  And  in  their  Lordships'  opinion  it  is  clear  that 
it  cannot  be  extended  to  a  report  of  statements  made  to  the  Bishop  of 
Natal,  and  by  him  transmitted  to  the  appellants,  or  to  statements 
made  to  a  reporter  in  the  employ  of  the  appellants,  who  for  the  pur- 
poses of  the  newspaper,  sought  an  interview  with  messengers  on  their 
way  to  lay  a  complaint  before  the  governor. 

The  language  used  by  the  learned  judge  in  summing  up  the  present 
case  to  the  jury  is  open  to  some  criticism,  and  does  not  contain  so 
clear  and  complete  an  exposition  of  the  law  as  might  be  desired.  But 
in  their  Lordships'  opinion,  so  far  as  it  erred,  it  erred  in  being  too 
favorable  to  the  appellants,  and  it  is  not  open  to  any  complaint  on 
their  part. 

The  only  question  that  remains  is  as  to  the  amoimt  of  damages.  The 
assessment  of  these  is  peculiarly  the  province  of  the  jury  in  an  action 
of  libel.  The  damages  in  such  an  action  are  not  limited  to  the  amount 
of  pecuniary  loss  which  the  plaintiff  is  able  to  prove.  And  their  Lord- 
ships see  no  reason  for  saying  that  the  damages  awarded  were  excessive 
or  for  interfering  with  the  finding  of  the  jury  in  this  respect. 

They  will,  therefore,  humbly  advise  Her  Majesty  that  the  judgment 
appealed  against  should  be  affirmed  and  the  appeal  dismissed  with 
costs. 


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CHAPTER  VII 
INTERFERENCE  WITH  PRIVACY 

ROBERSON  V.  ROCHESTER  FOLDING  BOX  COMPANY 

Court  of  Apfeals,  New  York,  June  27,  1902. 

Reported  in  171  New  York  Reports,  538. 

Parker,  C.  J.^  The  Appellate  Division  *  has  certified  that  the  fol- 
lowing questions  of  law  have  arisen  in  this  case,  and  ought  to  be  re- 
viewed by  this  court:  1.  Does  the  complaint  herein  state  a  cause  of 
action  at  law  against  the  defendants  or  either  of  them  ?  2.  Does  the 
complaint  herein  state  a  cause  of  action  in  equity  against  the  defend- 
ants or  either  of  them  ?  These  questions  are  presented  by  a  demurrer 
to  the  complaint,  which  is  put  upon  the  ground  that  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 

As  a  demurrer  admits  not  only  those  facts  which  are  expressly  al- 
leged in  the  complaint,  but  everything  which  can  be  implied  by  fair 
and  reasonable  intendment  from  its  allegations  (Marie  v.  Garrison,  83 
N.  Y.  14,  23),  we  are  to  inquire  whether  the  complaint,  regarded  from 
the  standpoint  of  this  rule,  can  be  said  to  show  any  right  to  relief 
either  in  law  or  in  equity. 

The  complaint  alleges  that  the  Franklin. Mills  Co.,  one  of  the  de-' 
fendants,  was  engaged  in  a  general  milling  business  and  in  the  man- 
ufacture and  sale  of  flour;  that  before  the  commencement  of  the 
action,  without  the  knowledge  or  consent  of  plaintiff,  defendants, 
knowing  that  they  had  no  right  or  authority  so  to  do,  had  obtained 
made,  printed,  sold,  and  circulated  about  25,000  lithographic  prints, 
photographs  and  likenesses  of  plaintiff,  made  in  a  manner  particularly* 
set  up  in  the  complaint;  that  upon  the  paper  upon  which  the  likenesses 
were  printed  and  above  the  portrait  there  were  printed,  in  large,  plain 
letters,  the  words,  "  Flour  of  the  Family,"  and  below  the  portrait  in 
large  capital  letters,  "Franklin  Mills  Flour,"  and  in  the  lower  right- 
hand  comer  in  smaller  capital  letters,  "  Rochester  Folding  Box  Co., 
Rochester,  N.  Y.";  that  upon  the  same  sheet  were  other  advertise- 
ments of  the  flour  of  the  Franklin  Mills  Co.;  that  those  25,000  like- 
nesses of  the  plaintiff  thus  ornamented  have  been  conspicuously  posted 
and  displayed  in  stores,  warehouses,  saloons,  and  other  pubUc  places; 
that  they  have  been  recognized  by  friends  of  the  plaintiff  and  other 

^  Arguments  omitted. 

*  The  decision  of  the  Appellate  Division,  ovtoruling  demurrer  to  complaint,  is 
reported  in  64  App.  Div.  30. 

797 


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798       ROBERSON  V.  ROCHESTER  FOLDING  BOX  CO.        [CHAP.  Vn, 

people,  with  the  result  that  plaintiff  has  been  greatly  humiliated  by 
the  scoffs  and  jeers  of  persons  who  have  recognized  her  face  and  pic- 
ture on  this  advertisement  and  her  good  name  has  been  attacked,  caus- 
ing her  great  distress  and  suffering  both  in  body  and  mind;  that  she 
was  made  sick  and  suffered  a  severe  nervous  shock,  was  confined  to  her 
bed  and  compelled  to  employ  a  physician,  because  of  these  facts;  that 
defendants  had  continued  to  print,  make,  use,  sell,  and  circulate  the 
said  lithographs,  and  that  by  reason  of  the  foregoing  (acts  plaintiff 
had  suffered  damages  in  the  sum  of  $15,000.  The  complaint  prays 
that  defendants  be  enjoined  from  making,  printing,  publishing,  cir- 
culating, or  using  in  any  manner  any  likenesses  of  plaintiff  in  any  form 
whatever,  for  further  relief  (which  it  is  not  necessary  to  consider  here) 
and  for  damages. 

It  will  be  observed  that  there  is  no  complaint  made  that  plaintiff 
was  libelled  by  this  publication  of  her  portrait.  The  likeness  is  said 
to  be  a  very  good  one,  and  one  that  her  friends  and  acquaintances 
were  able  to  recognize:  indeed,  her  grievance  is  that  a  good  portrait 
of  her,  and,  therefore,  one  easily  recognized,  has  been  used  to  attract 
attention  toward  the  paper  upon  which  defendant  mill  company's  ad- 
vertisements appear.  Such  publicity,  which  some  find  agreeable,  is  to 
plaintiff  very  distasteful,  and  thus,  because  of  defendants'  imperti- 
nence in  using  her  pictm^  without  her  consent  for  their  own  business 
purposes,  she  has  been  caused  to  suffer  mental  distress  where  others 
would  have  appreciated  the  compliment  to  their  beauty  implied  in  the 
selection  of  the  picture  for  such  purposes;  but  as  it  is  distasteful  to 
her,  she  seeks  the  aid  of  the  courts  to  enjoin  a  further  circulation  of 
the  lithographic  prints  containing  her  portrait  made  as  alleged  in  the 
complaint,  and  as  an  incident  thereto,  to  reimburse  her  for  the  dam- 
ages to  her  feelings,  which  the  complaint  fixes  at  the  smn  of  $15,000. 

There  is  no  precedent  for  such  an  action  to  be  foimd  in  the  decisions 
of  this  court;  indeed,  the  learned  judge  who  wrote  the  very  able  and 
interesting  opinion  in  the  Appellate  Division  said,  while  upon  the 
^threshold  of  the  discussion  of  the  question:  "  It  may  be  said  in  the 
first  place  that  the  theory  upon  which  this  action  is  predicated  is  new, 
at  least  in  instance  if  not  in  principle,  and  that  few  precedents  can  be 
found  to  sustain  the  claim  made  by  the  plaintiff,  if  indeed  it  can  be 
said  that  there  are  any  authoritative  cases  establishing  her  right  to 
recover  in  this  action."  Nevertheless,  that  court  reached  the  conclu- 
sion that  plaintiff  had  a  good  cause  of  action  against  defendants,  in 
that  defendants  had  invaded  what  is  called  a  "  right  of  privacy  "  —  in 
other  words,  the  right  to  be  let  alone.  Mention  of  such  a  right  is  not 
to  be  found  in  Blackstone,  Kent,  or  any  other  of  the  great  commentsr- 
tors  upon  the  law,  nor  so  far  as  the  learning  of  counsel  or  the  courts 
in  this  case  have  been  able  to  discover,  does  its  existence  seem  to  have 
been  asserted  prior  to  about  the  year  1890,  when  it  was  presented  with 
attractiveness  and  no  inconsiderable  ability  in  the  Harvard  Law 


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CHAP.  VII.]        ROBERSON  V.  ROCHESTER  FOLDING  BOX  CO.        799 

Review  (Vol.  IV,  page  193)  in  an  article  entitled  "  The  Right  of 
Privacy." 

The  so-called  right  of  privacy  is,  as  the  phrase  suggests,  founded 
upon  the  claim  that  a  man  has  the  right  to  pass  through  this  world, 
if  he  wills,  without  having  his  picture  published,  his  business  enter- 
prises discussed,  his  successful  experiments  written  up  for  the  benefit 
of  others,  or  his  eccentricities  commented  upon  either  in  handbills, 
circulars,  catalogues,  periodicals,  or  newspapers,  and,  necessarily,  that 
the  things  which  may  not  be  written  and  published  of  him  must  not  be 
spoken  of  him  by  his  neighbors,  whether  the  comment  be  favorable  or 
otherwise.  While  most  persons  wCtild  much  prefer  to  have  a  good 
likeness  of  themselves  appear  in  a  responsible  periodical  or  leading 
newspaper  rather  than  upon  an  advertising  card  or  sheetj  the  doctrine 
which  tiie  courts  are  asked  to  create  for  this  case  would  apply  as  well 
to  the  one  publication  as  to  the  other,  for  the  principle  which  a  court 
of  equity  is  asked  to  assert  in  support  of  a  recovery  in  this  action  is 
that  the  right  of  privacy  exists  and  is  enforceable  in  equity,  and  that 
the  publication  of  that  which  purports  to  be  a  portrait  of  another  per- 
son, even  if  obtained  upon  the  street  by  an  impertinent  individual 
with  a  camera,  will  be  restrained  in  equity,  on  the  ground  that  an 
individual  has  the  right  to  prevent  his  features  from  becoming  known 
to  those  outside  of  his  circle  of  friends  and  acquaintances. 

If  such  a  principle  be  incorporated  into  the  body  of  the  law  through 
the  instrumentaUty  of  a  court  of  equity,  the  attempts  to  logically 
apply  the  principle  will  necessarily  result,  not  only  in  a  vast  amount  of 
Utigation,  but  in  Utigation  bordering  upon  the  absurd,  for  the  right 
of  privacy,  once  established  as  a  legal  doctrine,  cannot  be  confined  to 
the  restraint  of  the  pubUcation  of  a  likeness,  but  must  necessarily  em- 
brace as  well  the  publication  of  a  word-picture,  a  comment  upon  one's 
looks,  conduct,  domestic  relations,  or  habits.  And  were  the  right  of 
privacy  once  legally  asserted,  it  would  necessarily  be  held  to  include 
the  same  things  if  spoken  instead  of  printed,  for  one,  as  well  as  the 
other,  invades  the  right  to  be  absolutely  let  alone.  An  insult  would 
certainly  be  in  violation  of  such  a  right,  and  with  many  persons  would 
more  seriously  wound  the  feeUngs  than  would  the  publication  of  their 
picture.  And  so  we  might  add  to  the  list  of  things  that  are  spoken 
and  done  day  by  day  which  seriously  offend  the  sensibilities  of  good 
people,  to  which  the  principle  which  the  plaintiff  seeks  to  have  im- 
bedded in  the  doctrine  of  the  law  would  seem  to  apply.  I  have  gone 
only  far  enough  to  barely  suggest  the  vast  field  of  litigation  which 
would  necessarily  be  opened  up  should  this  court  hold  that  privacy 
exists  as  a  legal  right  enforceable  in  equity  by  injunction,  and  by 
damages  where  they  seem  necessary  to  give  complete  relief. 

The  legislative  body  could  very  well  interfere  and  arbitrarily  pro- 
vide that  no  one  should  be  permitted  for  his  own  selfish  purpose  to 
use  the  picture  or  the  name  of  another  for  advertising  purposes  with- 


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800   ROBERSON  V.  ROCHESTER  FOLDING  BOX  CO.    [CHAP.  VH, 

out  his  consent.  In  such  event  no  embarrassment  would  result  to  the 
general  body  of  the  law,  for  the  rule  would  be  applicable  only  to  cases 
provided  for  by  the  statute.  The  courts,  however,  being  without  au- 
thority to  legislate,  are  required  to  decide  cases  upon  principle,  and 
so  are  necessarily  embarrassed  by  precedents  created  by  an  extreme, 
and,  therefore,  unjustifiable  application  of  an  old  principle. 

TTie  court  below  properly  said  that  "  while  it  may  be  true  that  the 
fact  that  no  precedent  can  be  f oimd  to  sustain  an  action  in  any  given 
case  is  cogent  evidence  that  a  principle  does  not  exist  upon  which 
the  right  may  be  based,  it  is  not  the  nde  that  the  want  of  a  precedent 
is  a  sufficient  reason  for  turning  the  plaintiff  out  of  court,"  provided  — 
I  think  should  be  added  —  there  can  be  found  a  clear  and  imequivo- 
cal  principle  of  the  common  law  which  either  directly  or  mediately 
governs  it  or  which  by  analogy  or  parity  of  reasoning  ought  to  gov- 
ern it. 

It  is  undoubtedly  true  that  in  the  early  days  of  chancery  jurisdic- 
tion in  England  the  chancellors  were  accustomed  to  deliver  their 
judgments  without  regard  to  principles  or  precedents,  and  in  that  way 
the  process  of  building  up  the  system  of  equity  went  on,  the  chancel- 
lor disregarding  absolutely  many  established  principles  of  the  com- 
mon law.  "  In  no  other  way,"  says  Pomeroy,  "  could  the  system  of 
equity  jurisprudence  have  b^n  commenced  and  continued  so  as  to 
arrive  at  its  present  proportions."  (Pomeroy's  Eq.  Jur.  sect.  48.)  In 
their  work  the  chancellors  were  guided  not  only  by  what  they  re- 
garded as  the  eternal  principles  of  absolute  right,  but  also  by  their 
individual  consciences;  but  after  a  time  when  "  the  period  of  infancy 
was  passed  and  an  orderly  system  of  equitable  principles,  doctrines, 
and  rules  b^an  to  be  developed  out  of  the  increasing  mass  of  prece- 
dents, this  theory  of  a  personal  conscience  was  abandoned;  and  '  the 
conscience,'  which  is  an  element  of  the  equitable  jurisdiction,  came 
to  be  regarded,  and  has  so  continued  to  the  present  day,  as  a  meta- 
phorical term,  designating  the  common  standard  of  civil  right  and 
expediency  combined,  based  upon  general  principles  and  limited  by 
established  doctrines  to  which  the  court  appeals,  and  by  which  it  tests 
the  conduct  and  rights  of  suitors  —  a  juridical  and  not  a  personal 
conscience."     (Pomeroy's  Eq.  Jur.  sect.  57.) 

The  importance  of  observing  the  spirit  of  this  rule  cannot  be  over- 
estimated, for,  while  justice  in  a  given  case  may  be  worked  out  by  a 
decision  of  the  court  according  to  the  notions  of  right  which  govern 
the  individual  judge  or  body  of  judges  comprising  the  court,  the  mis- 
chief which  will  finally  result  may  be  almost  incalculable  under  oinr 
system  which  makes  a  decision  in  one  case  a  precedent  for  decisions  in 
all  future  cases  which  are  akin  to  it  in  the  essential  facts. 

So  in  a  case  like  the  one  before  us,  which  is  concededly  new  to  this 
court,  it  is  important  that  the  court  should  have  in  mind  the  effect 
upon  future  Utigation  and  upon  the  development  of  the  law  which 


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CHAP,  Vn,]   ROBERSON  V.  ROCHESTER  FOLDING  BOX  CO.   801 

would  necessarily  result  from  a  step  so  far  outside  of  the  beaten  paths 
of  both  common  law  and  equity,  assuming  —  what  I  shall  attempt  to 
show  in  a  moment  —  that  the  right  of  privacy  as  a  legal  doctrine 
enforceable  in  equity  has  not,  down  to  this  time,  been  established  by 
decisions. 

The  history  of  the  phrase  "  right  of  privacy  "  in  this  country  seems 
to  have  b^un  in  1 890  in  a  clever  article  in  the  Harvard  Law  Review  — 
already  referred  to  —  in  which  a  number  of  English  cases  were  ana- 
lyzed, and,  reasoning  by  analc^y,  the  conclusion  was  reached  that  — 
notwithstanding  the  unanimity  of  the  courts  in  resting  their  decisions 
upon  property  rights  in  cases  where  pubUcation  is  prevented  by  in- 
junction—  in  reality  such  prevention  was  due  to  the  necessity  of 
affording  protection  to  thoughts  and  sentiments  expressed  through  the 
medium  of  writing,  printing,  and  the  arts,  which  is  like  the  right  not 
to  be  assaulted  or  beaten;  in  other  words,  that  the  principle  actually 
involved  though  not  always  appreciated,  was  that  of  an  inviolate  per- 
sonality, not  that  of  private  property. 

This  article  brought  forth  a  reply  from  the  Northwestern  Review 
(Vol.  Ill,  page  1)  urging  that  equity  has  no  concern  with  the  feelings 
of  an  individual  or  with  considerations  of  moral  fitness,  except  as  the 
iBconvenience  or  discomfort  which  the  person  may  sufifer  is  connected 
with  the  possession  or  enjoyment  of  property,  and  that  the  English 
authorities  cited  are  consistent  with  such  view.  Those  authorities  are 
now  to  be  examined  in  order  that  we  may  see  whether  they  were  in- 
tended to  and  did  mark  a  departure  from  the  established  rule  which 
had  been  enforced  for  generations;  or,  on  the  other  hand,  are  entirely 
consistent  with  it. 

[The  learned  judge  then  commented  upon  various  English  cases; 
also  upon  several  American  cases,  especifiJly  Schuyler  v.  Curtis,  147 
N.  Y.  434;  Atkinson  v.  Doherty,  121  Mich.  372;  and  Corhaa  v.  E.  W. 
Walker  Co.,  57  Fed.  Rep.  434.  The  point  adtusUy  decided  in  147 
N.  Y.  434  and  in  121  Mich.  372  was  that  the  widow  or  relatives  of  a 
deceased  person  cannot  restrain  the  erection  of  his  statue  or  the  pub- 
lication of  his  picture.  In  the  Corliss  case,  the  court  declined  to 
grant  the  request  of  a  widow  that  the  publication  of  a  biography 
of  her  deceased  husband  should  be  enjoined;  and  finally  (64  Fed. 
Rep.  280)  declined  to  restrain  the  publication  of  his  picture.  The 
latter  decision  proceeded  upon  the  groimd  that  Mr.  Corliss  was  a 
public  character.] 

This  dictinction  between  public  and  private  characters  cannot  pos- 
sibly be  drawn.  On  what  principle  does  an  author  or  artist  forfeit 
his  right  of  privacy  and  a  great  orator,  a  great  preacher,  or  a  great 
advocate  retain  his  ?  Who  can  draw  a  line  of  danarcation  between 
public  characters  and  private  characters,  let  that  line  be  as  wavering 
and  irr^ular  as  you  please  ?  In  the  very  case  then  before  the  judge, 
what  had  Mr.  Corliss  done  by  which  he  surrend^r^  bis  right  of  pri- 


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802       KOBERSON  V.  ROCHESTER  FOLDING  BOX  CO.        [CHAP.  VII. 

vacy  ?  In  what  respect  did  he  by  his  inventions  "  ask  for  and  desire 
public  recognition  "  any  more  than  a  banker  or  merchant  who  prose- 
cutes his  calling  ?  Or  is  the  right  of  privacy  the  possession  of  medi- 
ocrity alone,  which  a  person  forfeits  by  giving  rein  to  his  ability, 
spurs  to  his  industry,  or  grandeur  to  his  character  ?  A  lady  may  pass 
her  life  in  domestic  privacy  when,  by  some  act  of  heroism  or  self- 
sacrifice,  her  name  and  fame  fill  the  public  ear.  Is  she  to  forfeit  by 
her  good  deed  the  right  of  privacy  she  previously  possessed  ?  These 
considerations  suggest  the  answer  we  would  make  to  the  position  of 
the  learned  judge  and  at  the  same  time  serve  to  make  more  clear  what 
we  have  elsewhere  attempted  to  point  out,  namely,  the  absolute  im- 
possibility of  dealing  with  this  subject  save  by  l^islative  enactment, 
by  which  may  be  drawn  arbitrary  distinctions  which  no  court  should 
promulgate  as  a  part  of  general  jurisprudence. 

An  examination  of  the  authorities  leads  us  to  the  conclusion  that 
the  so-called  "  right  of  privacy  "  has  not  as  yet  foimd  an  abiding 
place  in  our  jurisprudence,  and,  as  we  view  it,  the  doctrine  cannot 
now  be  incorporated  without  doing  violence  to  settled  principles  of 
law  by  which  the  profession  and  the  public  have  long  been  guided. 

I  do  not  say  that,  even  imder  the  existing  law,  in  every  case  of  the 
character  of  the  one  before  us,  or  indeed  in  this  case,  a  party  whose 
likeness  is  circulated  against  his  will  is  wit&out  remedy.  By  section 
245  of  the  Penal  Code  any  malicious  publication  by  picture,  eflSgy,  or 
sign  which  exposes  a  person  to  contempt,  ridicule,  or  obloquy  is  a  libel, 
and  it  would  constitute  such  at  common  law.  Malicious  in  this  defi- 
nition means  simply  intentional  and  wilful.  There  are  many  articles, 
especially  of  medicine,  whose  character  is  such  that  using  the  picture 
of  a  person,  particularly  that  of  a  woman,  in  connection  with  the  ad- 
vertisement of  those  articles  might  justly  be  found  by  a  jury  to  cast 
ridicule  or  obloquy  on  the  person  whose  picture  was  thus  published. 
The  manner  or  posture  in  which  the  person  is  portrayed  might  readily 
have  a  like  effect.  In  such  cases  both  a  civU  action  and  a  criminal 
prosecution  could  be  maintained.  But  there  is  no  allegation  in  the 
complaint  before  us  that  this  was  the  tendency  of  the  publication 
complained  of,  and  the  absence  of  such  an  allegation  is  fatal  to  the 
maintenance  of  the  action,  treating  it  as  one  of  libel.  This  case  dif- 
fers from  an  action  brought  for  libellous  words.  In  such  case  the 
alleged  libel  is  stated  in  the  complaint,  and  if  the  words  are  libellous 
per  86,  it  is  unnecessary  to  charge  that  their  effect  exposes  the  plaintiff 
to  disgrace,  ridicule,  or  obloquy.  The  law  attributes  to  them  that  re- 
sult. But  where  the  Ubel  is  a  picture  which  does  not  appear  in  the 
record,  to  make  it  libellous  there  must  be  a  proper  aUegation  as  to  its 
character. 

The  judgment  of  the  Appellate  Division  and  of  the  Special  Term 
should  be  reversed  and  questions  certified  answered  in  the  negative 


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CHAP.  VII.]       R0BEK80N  V.  ROCHESTER  FOLDING  BOX  CO.       803 

without  costs,  and  with  leave  to  the  plaintiff  to  serve  an  amended 
complaint  within  twenty  days,  also  without  costs. 

Gray,  J.  (dissenting). 

In  the  present  case,  we  may  not  say  that  the  plaintiff's  complaint 
is  fanciful,  or  that  her  aUeged  injury  is,  purely,  a  sentimental  one. 
Her  objection  to  the  defendants'  acts  is  not  one  bom  of  caprice;  nor 
is  it  based  upon  the  defendants'  act  being  merely  "  distasteful "  to 
her.  We  are  boimd  to  assume,  and  I  find  no  diflBculty  in  doing  so,  that 
the  conspicuous  display  of  her  likeness,  in  various  public  places,  has 
so  humiliated  her  by  the  notoriety  and  by  the  public  comments  it  has 
provoked,  as  to  cause  her  distress  and  suffering,  in  body  and  in  mind, 
and  to  confine  her  to  her  bed  with  illness. 

If  it  were  necessary,  to  be  entitled  to  equitable  relief,  that  the  plain- 
tiff's sufferings,  by  reason  of  the  defendants'  acts,  should  be  serious, 
and  appreciable  by  a  pecuniary  standard,  clearly,  we  might  well  say, 
under  the  allegations  of  the  complaint,  that  they  were  of  such  d^ree 
of  gravity.  However,  I  am  not  of  the  opinion  that  the  gravity  of 
the  injury  need  be  such  as  to  be  capable  of  being  estimated  by  such 
a  standard.  If  the  right  of  privacy  exists  and  this  complaint  makes 
out  a  case  of  its  substantial  violation,  I  think  that  the  award  of  equi- 
table relief,  by  way  of  an  injunction,  preventing  the  continuance  of  its 
invasion  by  the  defendants,  will  not  depend  upon  the  complainant's 
ability  to  prove  substantial  pecuniary  damages  and,  if  the  court  finds 
the  defendants'  act  to  be  without  justification  and  for  selfish  gain  and 
pmposes,  and  to  be  of  such  a  character,  as  is  reasonably  calculated  to 
wound  the  feelings  and  to  subject  the  plaintiff  to  the  ridicule,  or  to 
the  contempt  of  others,  that  her  right  to  the  preventive  rehef  of  equity 
will  follow;  without  considering  how  far  her  sufferings  may  be 
measurable  by  a  pecuniary  standard. 

The  right  of  privacy,  or  the  right  of  the  individual  to  be  let  alone, 
is  a  persona]  right,  which  is  not  without  judicial  recognition.  It  is 
the  complement  of  the  right  to  the  immunity  of  one's  person.  The 
individual  has  always  been  entitled  to  be  protected  in  the  exclusive 
use  and  enjoyment  of  that  which  is  his  o\\m.  The  common  law  re- 
garded his  person  and  property  as  inviolate,  and  he  has  the  absolute 
right  to  be  let  alone.  (Cooley  on  Torts,  page  29.)  The  principle  is 
fundamental  and  essential  in  organized  society  that  every  one,  in 
exercising  a  personal  right  and  in  the  use  of  his  property,  shall  respect 
the  rights  and  properties  of  others.  He  must  so  conduct  himself,  in 
the  enjoyment  of  the  rights  and  privileges  which  belong  to  him  as  a 
member  of  society,  as  that  he  shall  prejudice  no  one  in  the  possession 
and  enjoyment  of  those  which  are  exclusively  his.  When,  as  here, 
there  is  an  alleged  invasion  of  some  personal  right,  or  privilege,  the 
absence  of  exact  precedent  and  the  fact  that  early  conunentators  upon 


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804       KOBERSON  V.  ROCHESTER  FOLDING  BOX  CO.        [CHAP.  VII* 

the  common  law  have  no  discussion  upon  the  subject  are  of  no  mate- 
rial importance  in  awarding  equitable  reUef.  TTiat  the  exercise  of 
the  preventive  power  of  a  court  of  equity  is  demanded  in  a  novel  case, 
is  not  a  fatal  objection. 

In  an  article  in  the  Harvard  Law  Review,  of  December  15,  1890, 
which  contains  an  impressive  argument  upon  the  subject  of  th^ ''  right 
of  privacy,''  it  was  well  said  by  the  authors  "  that  the  individual  shall 
have  full  protection  in  person  and  in  property  is  a  principle  as  old  as 
the  common  law;  but  it  has  been  found  necessary  from  time  to  time 
to  define  anew  the  exact  nature  and  extent  of  such  protection.  .  .  . 
Tlie  right  to  life  had  come  to  mean  the  right  to  enjoy  life  —  the  right 
to  be  let  alone;  the  right  to  liberty  secures  the  exercise  of  extensive 
civil  privileges;  and  the  term '  property '  has  grown  to  comprise  every 
form  of  possession  —  intangible  as  well  as  tangible." 

Instantaneous  photography  is  a  modem  invention  and  affords  the 
means  of  securing  a  portraiture  of  an  individual's  face  and  form  in  irir 
vUum  their  owner.  Tiile,  so  far  forth  as  it  merely  does  that,  although 
a  species  of  aggression,  I  concede  it  to  be  an  irremediable  and  irre- 
pressible feature  of  the  social  evolution.  But,  if  it  is  to  be  permitted 
that  the  portraiture  may  be  put  to  commercial  or  other  uses  for  gain, 
by  the  publication  of  prints  therefrom,  then  an  act  of  invasion  of  the 
individual's  privacy  results,  possibly  more  formidable  and  more  pain- 
ful in  its  consequences  than  an  actual  bodily  assault  might  be.  Secu- 
rity of  person  is  as  necessary  as  the  security  of  property;  and  for  that 
complete  personal  security,  which  will  result  in  the  peaceful  and 
wholesome  enjoyment  of  one's  privileges  as  a  member  of  society, 
there  should  be  afforded  protection,  not  only  against  the  scandalous 
portraiture  and  display  of  one's  features  and  person,  but  against  the 
display  and  use  thereof  for  another's  commercial  purpbses  or  gain. 
The  proposition  is,  to  me,  an  inconceivable  one  that  these  defendants 
^lay,  unauthorizedly,  use  the  likeness  of  this  young  woman  upon 
their  advertisement,  as  a  method  of  attracting  widespread  public  at- 
tention to  their  wares,  and  that  she  must  submit  to  the  mortifying 
notoriety,  without  right  to  invoke  the  exercise  of  the  preventive  power 
of  a  court  of  equity. 

Such  a  view,  as  it  seems  to  me,  must  have  been  unduly  influenced 
by  a  failure  to  find  precedents  in  analogous  cases,  or  some  declaration 
by  the  great  commentators  upon  the  law  of  a  common-law  principle 
which  would,  precisely,  apply  to  and  govern  the  action;  without 
taking  into  consideration  that,  in  the  existing  state  of  society,  new 
conditions  affecting  the  relations  of  persons  demand  the  broader  ex- 
tension of  those  legal  principles,  which  underlie  the  immunity  of  one's 
person  from  attack.  I  think  that  such  a  view  is  unduly  restricted, 
too,  by  a  search  for  some  property,  which  has  been  invaded  by  the 
defendants'  act.    Property  is  not,  necessarily,  the  thing  itself,  which 


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CHAP.  VII.]       R0BEK80N  V.  ROCHESTER  FOLDING  BOX  CO.       805 

is  owned;  it  is  the  right  of  the  owner  in  relation  to  it.  The  right  to 
be  protected  in  one's  possession  of  a  thing,  or  in  one's  privileges,  be- 
longing to  him  as  an  individual,  or  secured  to  him  as  a  member  of  the 
commonwealth,  is  property,  and  as  such  entitled  to  the  protection  of 
the  law.  The  protective  power  of  equity  is  not  exercised  upon  the 
tangible  thing,  but  upon  the  right  to  enjoy  it;  and,  so,  it  is  called 
forth  for  the  protection  of  the  right  to  that  which  is  one's  exclusive 
possession,  as  a  property  right.  It  seems  to  me  that  the  principle, 
which  is  applicable,  is  analogous  to  that  upon  which  courts  of  equity 
have  interfered  to  protect  the  right  of  privacy,  in  cases  of  private 
writings,  or  of  other  unpublished  products  of  the  mind.  The  writer, 
or  the  lecturer,  has  been  protected  in  his  right  to  a  literary  property 
in  a  letter,  or  a  lectiire,  against  its  unauthorized  publication;  because 
it  is  property,  to  which  the  right  of  privacy  attaches.  (Woolsey  v. 
Judd,  4  Duer,  399;  Gee  v.  Pritchard,  2  Swanst.  402;  Abemathy  v. 
Hutchinson,  3  L.  J.  Ch.  209;  Folsom  v.  March,  2  Story,  100.)  I 
think  that  this  plaintiff  has  the  same  property  in  the  right  to  be 
protected  against  the  use  of  her  face  for  defendant's  commercial 
pmposes,  as  she  would  have  if  they  were  publishing  her  hterary  com- 
positions. The  right  would  be  conceded,  if  she  had  sat  for  her  photo- 
graph; but  if  her  face,  or  her  portraitiu-e,  has  a  value,  the  value  is 
hers  exclusively  until  the  use  be  granted  away  to  the  public.  Any 
other  principle  of  decision,  in  my  opinion,  is  as  repugnant  to  equity 
as  it  is  shocking  to  reason.  Judge  Colt,  of  the  United  States  Court, 
in  Corliss  v.  Walker  Co.,  64  Fed.  Rep.  280-285,  a  case  involving  the 
same  question  of  an  invasion  of  the  right  of  privacy,  with  respect  to 
the  publication  of  a  printed  likeness  of  Mr.  Corliss,  expressed  the 
opinion  that  "  independently  of  the  question  of  contract,  I  believe 
the  law  to  be  that  a  private  individual  has  a  right  to  be  protected  in 
the  representation  of  his  portrait  in  any  form;  that  this  is  a  property 
as  well  as  a  personal  right;  and  that  it  belongs  to  the  same  class  of 
rights  which  forbids  the  reproduction  of  a  private  manuscript  or  paint- 
ing, or  the  publication  of  private  letters,  or  of  oral  lectures  deUvered 
by  a  teacher  to  his  class,  or  the  revelation  of  the  contents  of  a  mer- 
chant's books  by  a  clerk."  The  case  itself  is  not  in  point  in  its  facts; 
because  the  complainant  was  the  widow  of  Mr.  Corliss,  and  thus  it 
came  within  the  limitations  of  Schuyler  v.  Curtis. 

The  right  to  grant  the  injunction  does  not  depend  upon  the  exist- 
ence of  prop)erty,  which  one  has  in  some  contractual  form.  It  depends 
upon  the  existence  of  property  in  any  right  which  belongs  to  a  person. 


It  would  be,  in  my  opinion,  an  extraordinary  view  which,  while  con- 
ceding the  right  of  a  person  to  be  protected  against  the  unauthorized 
circulation  of  an  unpublished  lecture,  letter,  drawing,  or  other  ideal 
property,  yet  would  deny  the  same  protection  to  a  person  whose  por- 
trait was  unauthorizedly  obtained,  and  made  use  of,  for  commercial 


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806       ROBERSON  V.  ROCHESTER  FOLDING  BOX  CO.        [CHAP.  VH. 

purposes.  The  injury  to  the  plaintiff  is  irreparable;  because  she  can- 
not be  wholly  compensated  in  damages  for  the  various  consequences 
entailed  by  defendants'  acts.  The  only  complete  reUef  is  an  injunc- 
tion restraining  their  continuance.  Whether,  as  incidental  to  that 
equitable  relief ,  she  should  be  able  to  recover  only  nominal  damages  is 
not  material;  for  the  issuance  of  the  injimction  does  not,  in  such  a 
case,  depend  upon  the  amoimt  of  the  damages  in  dollars  and  cents. 

A  careful  consideration  of  the  question  presented  upon  this  appeal 
leads  me  to  the  conclusion  that  the  judgment  appealed  from  should 
be  affirmed. 

O'Brien,  Cullen,  and  Werner,  JJ.,  concur  with  Parker,  Ch.  J.; 
Bartlett  and  Haiqht,  JJ.,  concur  wilJi  Gray,  J. 

Judgment  reversed,  etc} 

^  Corelli  v.  Wall,  22  Times  L.  R.  532  (post  cards  dq^icling  imaginary  incidents 
of  an  author's  life) ;  Atkinson  v,  Doherty,  121  Mich.  372  (picture  ofplaintiff's  d^ 
husband  on  cigar  label);  Henryv.  Cheny,  30  R.  1. 13  (picture  as  advertisement); 
Hillman  v.  Star  Pub.  Co.,  64  Wash.  691  (picture  of  plEuntiff  in  connection  with 
report  of  arrest  of  her  father  for  crime)  Accord.  Compare  Chappell  v,  Stewart,  ^ 
Md.  323  (shadowing). 

Corliss  V.  Walker,  57  Fed.  434  (aemble);  Von  Theodorovich  v,  Josef  Beneficiary 
Ass'n,  154  Fed.  911  (semble);  Pavesich  v.  New  England  Ins.  Co..  122  Ga.  190 
(picture  as  advertisement);  Foster-Milbum  Co.  v,  Chinn,  134  Kv.  424  (picture  as 
advertisement);  Douglas  v.  Stokes,  149  Ky.  506  (publishing  photograph  of  de- 
ce&Bed  deformed  child  of  plaintiff);  Itskovitch  v.  miitaker,  115  La.  479,  117  La. 
'708  (photograph  in  rogues^  gallery);  Schuhnanv.  Whitaker,  117La.704;  Mimden 
V,  Harris,  153  Mo.  App.  652  (picture  as  advertisement) ;  Edison  v.  Edison  Poly- 
form  &  Mfg.  Co.,  73  N.  J.  Eq.  136  (picture  —  but  here  there  was  chiefly  an  interest 
of  substance)  Contra. 

See  also  Dill,  J.  in  VanderbUt  v.  Mitchell,  72  N.  J.  Eq.  910,  919. 

As  to  photographing  persons  arrested  on  charges  of  crime,  see  Hodgman  v. 
Olsen,  86  Wash.  615. 

New  York,  Crm*  Rights  Law,  §§  50,  51  (Laws  of  1903,  ch.  132,  §§  1, 2). 

§  50.  A  person,  firm,  or  corporation  that  uses  for  advertising  purposes,  or  for 
the  purposes  of  trade,  tne  name,  portrait,  or  picture  of  any  living  person  without 
havmg  first  obtained  the  written  consent  of  such  person,  or  if  a  mmor  of  his  or  her 
parent  or  guardian,  is  guilty  of  a  misdemeanor. 

§  51.  Any  person  whose  name,  portrait,  or  picture  is  used  within  this  state  for 
advertising  purposes  or  for  the  purposes  of  trade  without  the  written  consent  first 
obtained  as  above  provided  may  maintain  an  equitable  action  in  the  supreme 
court  of  this  state  against  the  person,  firm,  or  corporation  so  using  his  name,  por- 
trait, or  picture,  to  prevent  and  restrain  the  use  thereof:  and  may  also  sue  and 
recover  oiamages  for  any  injuries  maintained  bv  reason  ot  such  use,  and  if  the  de- 
fendant shall  have  knowin^^y  used  such  person's  name,  portrait,  or  picture  in  such 
manner  as  is  forbidden  or  declared  to  be  unlawful  by  this  act,  the  jury,  in  its  dis- 
cretion, may  award  exemplary  damt^es. 

See  Binns  v.  Vita^jraph  Co^210  N.  Y.  51. 

On  the  whole  subject,  see  Warren  and  Brandeis,  The  ^sht  to  Priva<^,  4  Har- 
vard Law  Rev.  193;  Pound,  Interests  of  Personahty,  28  mrvard  Law  Rev.  343, 
362-364. 


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CHAPTER  Vni 
mTERFERENCE  WITH  ADVANTAGEOUS  RELATIONS 

DAVIES  V.  GARDINER 
In  thb  Common  Pleas,  Trinitt  Term,  1593. 
Beporied  in  Pophanif  86.^ 

An  action  upon  the  case  for  a  slander  was  brought  by  Anne  Davies 
against  John  Gardiner;  That  whereas  there  was  a  communication  of  a 
marriage  to  be  had  between  the  plaintiff  and  one  Anthony  Elcock,  the 
defendant,  to  the  intent  to  hinder  the  said  marriage,  said  and  pub- 
lished that  there  was  a  grocer  in  London  that  did  get  her  with  child, 
and  that  she  had  the  child  by  the  said  grocer,  whereby  she  lost  her 
marriage.  To  which  the  defendant  pleaded  not  guilty,  and  was  found 
guilty  at  the  assizes  at  Aylesbury,  to  the  damage  of  200  marks.  And 
now  it  was  allied,  in  arrest  of  judgment,  that  this  matter  appeareth 
to  be  merely  spiritual,  and  therefore  not  determinable  at  common  law, 
but  to  be  prosecuted  in  the  spiritual  court.  But  per  Curiam  the  action 
lies  here,  for  a  woman  not  married  cannot  by  intendment  have  so  great 
advancement  as  by  her  marriage,  whereby  she  is  sure  of  maintenance 
for  her  life,  or  during  her  marriage,  and  dower  and  other  benefits  which 
the  temporal  law  gives  by  reason  of  her  marriage;  and  therefore  by 
this  slander  she  is  greatly  prejudiced  in  that  which  is  to  be  her  tem- 
poral advancement,  for  which  it  is  reason  to  give  her  remedy  by  way  of 
action  at  common  law.  As  if  a  woman  keep  a  victualling  house,  to 
which  divers  of  great  credit  repair,  whereby  she  hath  her  livelihood, 
and  one  will  say  to  her  guests,  that  as  they  respect  their  credits,  they 
take  care  how  ihey  use  such  a  house,  for  there  the  woman  is  known  to 
be  a  bawd,  whereby  the  guests  avoid  her  house,  to  the  loss  of  her  hus- 
band, shall  not  she  in  this  case  have  an  action  at  common  law  for  such 
a  slander  ?  It  is  clear  that  she  will.  So,  if  one  saith  that  a  woman  is  a 
common  strumpet,  and  that  it  is  a  slander  to  them  to  come  to  her 
house,  whereby  she  loseth  the  advantage  which  she  was  wont  to  have 
by  her  guests,  she  shall  have  her  action  for  this  at  common  law. 

So  here  upon  these  collateral  circumstances,  whereby  it  may  appear 
that  she  hath  more  prejudice  than  can  be  by  calling  of  one  harlot,  and 
the  like.  And  judgment  was  given  for  the  plaintiff.* 

1  4  Rep.  16  6,  8.  c. 

>  Dame  Morrison's  Case,  Jenk.  316;  Matthew  v.  Crasse,  2  Bulst.  89;  Sell  v. 
Facy,  2  Bulst.  276,  3  Bulst.  48;  Nelson  v.  Staff,  Cro.  Jac.  422;  Thomson's  Case, 

807 


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808  ALLSOP  V.  ALLSOP  [CHAP.  Vin, 

ALLSOP  V.  ALLSOP 

In  the  Exchequer,  April  25, 1860. 

Reported  in  5  HurUtone  &  Norman,  534. 

Declaration.  —  That,  before  the  committing  of  the  grievances, 
the  said  Hannah  was  the  wife  of  the  plaintiff,  WiUiam  AIlsop;  and  the 
defendant,  on  divers  occasions,  falsely  and  maliciously  spoke  and  pub- 
lished of  the  plaintiff  Hannah  the  words  following  (to  the  effect  that 
he  had  had  carnal  connection  with  her  whilst  she  was  the  wife  of  the 
plaintiff,  William  AUsop) :  "  Whereby  the  plaintiff  Hannah  lost  the 
society  of  her  friends  and  neighbors,  and  they  refused  to,  and  did  not, 
associate  with  her  as  they  otherwise  would  have  done,  and  she  was 
much  injured  in  her  credit  and  reputation,  and  brought  into  public 
scandal  and  disgrace;  and,  by  reason  of  the  committing  of  the  griev- 
ances, the  said  Hannah  became  and  was  ill  and  unweU-for  a  long  time 
and  unable  to  attend  to  her  necessary  affairs  and  business,  and  the 
plaintiff,  William  AUsop,  was  put  to  and  incurred  much  expense  in  and 
about  the  endeavoring  to  cure  her  of  the  illness  which  she  labored 
under  as  aforesaid  by  reason  of  the  committing  of  the  said  grievances; 
and  the  said  William  AIlsop  lost  the  society  and  association  of  his  said 
wife  for  a  long  time  in  his  domestic  affairs,  which  he  otherwise  would 
have  had." 

Demurrer  and  joinder.^ 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  defendant  is  entitled 
to  judgment.  There  is  no  precedent  for  any  such  special  damage  as 
that  laid  in  this  declaration  being  made  a  ground  of  action,  so  as  to 
render  words  actionable  which  otherwise  would  not  be  so.  We  ought 
to  be  careful  not  to  introduce  a  new  element  of  damage,  recollecting 
to  what  a  large  class  of  actions  it  would  apply,  and  what  a  dangerous 
use  might  be  made  of  it.  In  actions  for  making  false  charges  before 
magistrates,  for  giving  false  characters,  and  for  torts  of  all  kinds, 
illness  might  be  said  to  have  arisen  from  the  wrong  sustained  by  the 
plaintiff.  The  case  of  Ford  v.  Monroe,  20  Wendell,  210,  is  the  only 
authority  that  has  any  tendency  to  throw  light  on  the  argument;  but 
we  ought  not  to  act  upon  the  authority  of  that  case,  opposed  as  it  is  to 
the  universal  practice  of  the  law  in  this  country.  The  courts  here  have 
always  taken  care  that  parties  shall  not  be  responsible  for  fanciful  or 
remote  damages,  or,  in  fact,  any  that  do  not  fairly  and  naturally  result 

Bendl.  148:  Countess  of  Salop's  Case,  Bendl.  155;  Taylor  v.  Tdwin,  Latch,  218; 
Wicks  V.  Snepherd,  Cro.  Car.  155;   Southold  v.  Daunston,  Cro.  Car.  269  Accord. 

See  Bridge  v.  Langton,  Litt.  193;  Norman  v.  Simons,  1  Yin.  Abr.  Act.  Words,  D, 
a,  12. 

In  Felty  v.  Felty,  164  Ky.  355,  plaintiff's  husband  left  her  as  a  result  of  the  de- 
famatory words. 

^  The  arguments  of  counsel  are  omitted,  together  with  the  concurring  opinions 
of  Martin,  Bramwell,  and  Wilde,  BB. 


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CHAP.  VIII.]  BAVIES  V.  SOLOMON  809 

from  the  wrongful  act  itself.  It  is  only  lately  that  a  clear  and  distinct 
view  of  the  subject  of  damages  was  taken,  in  Hadley  v.  Baxendale,  9 
Exch.  341,  in  which  it  was  held  that  a  person  whose  duty  it  is  to  de- 
liver goods  to  another  is  not  responsible  for  any  damages  resulting 
from  the  non-delivery,  imless  they  are  the  damages  which  would  result 
immediately  and  naturaUy,  that  is,  according  to  the  usual  course  of 
things,  from  the  breach  of  contract  itself,  or  such  as  may  reasonably 
be  supposed  to  have  been  in  the  contemplation  of  both  parties  at  the 
time  they  made  contract.  Slander  may  be  repeated,  and  the  repetition 
may  cause  mischief.  In  one  sense  nothing  is  more  natural  than  that 
such  should  be  the  case.  So  there  are  many  other  consequences  which 
may  follow  in  Ubel  and  slander  in  respect  of  which  there  is  no  remedy. 
This  particular  damage  depends  on  the  temperament  of  the  party 
affected,  and  it  may  be  laid  down  that  illness  arising  from  the  excite- 
ment which  the  slanderous  language  may  produce  is  not  that  sort  of 
damage  which  forms  a  ground  of  action. 

JudgmerUfor  the  defendant.^ 


DAVIES  V.  SOLOMON 

In  the  Qxteen'b  Bench,  November  29, 1871. 

Reported  in  Law  Reports,  7  Queen^s  Bench,  112. 

Blackburn,  J.*  Tlie  sole  diflSculty  in  deciding  the  case  is  caused 
by  the  opinion  of  Lord  Wensleydale  in  Lynch  v.  Knight,  9  H.  L.  C. 
577.   He  held  that  no  action  would  lie  for  slander  of  a  wife  when  the 

1  Guy  V.  Gregory,  9  Car.  &  P.  584;  Adams  v.  Smith,  68  111.  417;  Woodbury  v. 
Thompson,  3  N.  H.  194:  Butler  v.  Hoboken  Co.,  73  N.  J.  Law,  46;  Beach  v,  Ran- 
ney,  2  HilL  309;  TerwiUiger  v.  Wands,  17  N.  Y.  64  (overruling  Bradt  i;.  Towsley, 
13  Wend.  263;  Ohnsted  v.  Brown,  12  Barb.  667;  Fuller  v.  Fenner,  16  Barb.  333); 
Wilson  V,  Goit,  17  N.  Y.  442;  BasseU  v.  Ehnore,  48  N.  Y.  661;  Shepherd  v.  Lann 
phier,  84  Misc.  498 :  Clark  v,  Morrison,  80  Or.  240  Accord,  But  see  Garrison  v.  Sun 
Publishing  Ass'n,  207  N.  Y.  1  (defendant  published  a  libel  on  plaintiff's  wife  re- 
sulting in  illness  and  loss  of  her  services). 

M(^een  v.  Fulgham,  27  Tex.  463;  Underbill  v.  Welton,  32  Vt.  40  Contra. 

Damage  caused  by  another  person^ a  repetition  of  the  d^endanVa  words  is  too  re- 
mote. Holwood  v.  Hopkins,  Cro.  El.  787:  Ward  v.  Weeks,  7  Bing.  211  (but  see 
Riding  v.  Smith,  1  Ex.  D.  9l);  Rutherford  v.  Evans,  4  Car.  &  P.  74;  Tunnicliff  v. 
Moss,  3 Car.  A  K.  83:  KendiUon  v.  Maltby,  1  Car.  &  M.  402;  Parkins  v,  Scott,  1 H. 
&  C.  163;  Dixon  v.  Smith,  6  H.  &  N.  460;  Clarke  v.  Morgan,  38  L.  T.  Rep.  364; 
Bree  v.  Marescaux,  7  Q.  B.  Div.  434;  Gates  v.  Kellogg,  9  Ind.  606;  Stevens  ». 
HartweU,  11  Met.  642:  Hastings  v.  Stetson,  126  Mass.  329;  Hastings  v,  Pahner, 
20  Wend.  226:  Hallock  v.  Miller,  2  Barb.  630;  Ohnsted  i;.  Brown,  12  Barb.  667; 
Terwaiiger  ».  Wands.  17  N.  Y.  64:  Fowles  v.  Bowen.  30  N.  Y.  20;  BasseU  v,  El- 
more, 48  N.  Y.  661  (but  see  Sewell  v,  Catlin,  3  Wend.  296;  Keenholts  v.  Becker, 
3  Den.  346). 

See  also  Whitney  v.  Moignard,  24  Q.  B.  Div.  630;  Speight  v,  Gosnay,  60  L.  J. 
Q.  B.  231;  Adams  v.  Cameron,  27  Cal.  App.  626;  Muls  v,  Flynn,  167  la.  477; 
FitMerald  v.  Young,  89  Neb.  693. 

The  rule  is  otherwise  where  the  repetition  is  made  as  a  privileged  communica- 
tion. GiUett  V.  BuUivant,  7  L.  T.  490;  Deny  i;.  Handley,  16  L.  T.  Rep.  263; 
Fowles  V,  Boweuj  30  N.  Y.  20. 

>  Only  the  opmion  of  the  court  is  given. 


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810  DAVIES  V.  SOLOMON  [CHAP.  VIH. 

only  special  damage  aUeged  was  the  loss  to  the  plaintiff  of  the  con- 
sortium of  her  husband.  In  the  present  case,  however,  it  is  unneces- 
sary to  decide  this  question,  for  the  declaration,  after  alleging  the  loss 
of  cohabitation  by  the  wife,  proceeds  to  aver  that  "  she  lost,  and  was 
deprived  of  the  companionship,  and  ceased  to  receive  the  hospitality 
of  divers  friends."  Now,  first,  was  that  consequence  such  as  might 
reasonably  and  naturally  be  expected  to  follow  from  the  speaking  of 
the  slanderous  words?  Judging  from  the  habits  and  manners  of 
society,  of  all  the  consequences  that  might  be  expected  to  result  from 
a  statement  that  a  woman  had  committed  adultery,  or  had  been  guilty 
of  imchastity,  the  most  natural  would  be  that  those  who  had  invited 
her  and  given  her  hospitality  would  thenceforth  cease  to  do  so.  Then 
Moore  v.  Meagher,  1  Taunt.  39,  decides  that  the  loss  of  the  hospitality 
of  friends  is  sufficient  special  damage  to  sustain  an  action  like  the 
present,  and  the  hospitality,  as  the  word  is  there  used,  means  simply 
that  persons  receive  another  into  their  houses,  and  give  him  meat  and 
drink  gratis.  Perhaps  such  a  definition  may  rather  extend  the  sig- 
nification of  the  word,  but  it  is  true  in  effect  —  for  if  they  do  not  re- 
ceive him,  or  if  they  make  him  pay  for  his  entertainment,  that  is  not 
hospitaUty.  In  Roberts  v.  Roberts,  5  B.  &  S.  384,  33  L.  J.  Q.  B.  249, 
it  is  to  be  observed,  that  the  loss  suffered  by  the  plaintiff  in  being  ex- 
cluded from  a  religious  society  was  not  temporal,  and  was  therefore 
held  not  to  be  enough.  But  in  the  present  case  there  is  a  matter  of 
temporal  damage  —  small  though  it  be  —  laid  in  the  declaration.  It 
is  also  argued,  that  inasmuch  as  this  action  is  brought  by  the  wife, 
the  husband  being  merely  joined  for  conformity,  the  damage  neces- 
sary to  give  a  right  to  recover  must  be  damage  to  her  alone,  and  that 
the  loss  of  hospitaUty  which  she  has  hitherto  enjoyed  is  only  pecu- 
niary loss  to  her  husband,  and  not  to  her.  That  certainly  is  a  plaus- 
ible argument,  as  the  husband  is  of  coiu-se  bound  to  maintain  his  wife 
and  to  supply  her  with  food,  although  her  friends  cease  to  do  so.  I 
am,  however,  unwilling  to  agree  with  such  artificial  reasoning,  and  I 
think  that  the  real  damage  in  this  case  is  to  the  wife  herself.  Not- 
withstanding that  it  is  the  husband's  duty  to  support  his  wife,  he  is 
only  boimd  to  provide  her  with  necessaries  suitable  to  his  station  in 
life;  and  she  might,  by  visiting  friends  in  a  higher  position  than  him- 
self, enjoy  luxuries  which  he  either  could  not  or  might  not  choose  to 
afford  her.  But  I  should  be  sorry  to  say  that  we  must  enter  into  a 
nice  inquiry  as  to  whether  such  hospitaUty  would  s^ve  the  purse  of  the 
husband  or  of  the  wife.  I  am  therefore  of  opinion  tiiat  the  declaration 
is  good;  and  the  demurrer  must  be  overruled. 
Mellor  and  Hannen,  JJ.,  concurred. 

Judgment  for  the  plaintiff b. 


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CHAP.  Vni.]  MILLER  V.  DAVID  811 

CORCORAN  V.  CORCORAN 

In  the  Exchequer,  Ireland,  November  17, 1857. 

Reported  in  7  Irish  Common  Law  Reports,  272. 

Defamation.  —  The  summons  and  plaint  stated  the  speaking  of 
words  imputing  prostitution  to  the  plaintiff  Anne,  and  calling  her  a 
vagabond,  with  an  innuendo  that  this  word  imputed  that  she  was  a 
vagrant  without  a  fixed  place  of  abode.  By  means  of  the  committing 
of  which  several  grievances,  the  said  plaintiff  Anne  hath  been  injured 
in  her  credit  and  reputation,  and  brought  into  disgrace  with  her  ac- 
quaintances, in  so  much  that  her  brother  K.  Dooley,  who  had  prom- 
ised to  supply  the  said  Anne  with  means  to  enable  her  to  emigrate  to 
Australia  to  join  her  husband,  has  now,  in  consequence  of  the  imputi^ 
tions  cast  upon  her  character  by  the  said  defendant,  retracted  his 
promise  until  the  truth  or  falsehood  of  the  said  charges  shall  have  been 
first  ascertained  and  established;  whereby,  &c. 

Demiurer. 

Pbnnefather,  B.^  It  certainly  does  strike  me  that  this  summons 
and  plaint  would  not  be  good  without  the  allegation  of  special  damage. 

Then,  as  to  the  special  damage  laid.  I  certainly  agree  that  mere 
apprehension  of  damage  would  not  be  a  sufficient  statement;  but  here 
a  promise  has  been  laid.  It  is  argued  that  no  averment  of  the  prom- 
isor's intention  to  perform  it  has  been  made,  but  I  think  it  must  be 
taken  that  he  intended  to  perform  it,  until  the  contrary  be  shown.  In 
cases  of  actions  for  breach  of  promise,  as,  for  instance,  of  marriage, 
there  is  never  any  allegation  contained  to  that  effect,  nor  could  it  be 
maintained  that,  without  such  an  averment,  the  pleading  would  not  be 
sufficient. 

Then  follows  an  allegation  here  that,  by  reason  of  the  speaking  of 
the  words,  the  promisor  retracted  his  promise,  and  broke  off  his  treaty 
of  giving  the  plaintiff  fimds  to  enable  her  to  emigrate.  Now,  if  the 
words  stopped  there,  I  think  there  is  no  question  whatever  but  there 
was  special  damage  sustained  by  the  breach  of  a  promise  which  must 
have  been  beneficial  to  the  plaintiff .   The  demurrer  must  be  overruled. 

MILLER  V.  DAVID 

In  the  Common  Pleas,  January  20>  1874. 

Reported  in  Law  Reports,  9  Common  Pleas,  1187. 

The  first  count  stated  that  the  defendant  falsely  and  maliciously 
published  of  the  plaintiff,  a  stone-mason,  and  employed  as  such  in 
certain  works  carried  on  by  one  Mayberry,  these  words :  "  He  was  the 
ringleader  of  the  nine-hours  system,"  whereby  and  by  means  of  which 

^  The  case  is  materially  abridged. 


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812  MILLER  V.  DAVID  [CHAP.  Vin. 

premises  the  plaintiff  was  injured  in  his  occupation  of  a  stone-mason, 
and  was  discharged  from  his  said  employment  at  the  said  works,  to 
wit,  the  Old  Castle  Iron  and  Tin  Plate  Works,  and  was  without  and 
could  not  obtain  employment  for  a  considerable  time,  and  could  get 
no  employment  but  one  of  less  value  to  the  plaintiff,  the  place  of  em- 
ployment being  distant  from  his  place  of  abode,  and  his  necesary 
meals  thereby  becoming  more  costly,  and  such  place  of  employment 
being  exposed  to  wet  weather. 

The  second  coimt  was  similar,  except  that  the  words  spoken  were: 
**  He  has  ruined  the  town  by  bringing  about  the  nine  hours  S3rstem, 
and  he  has  stopped  several  good  jobs  from  being  carried  out,  by  being 
the  ringleader  of  the  system  at  Uanelly." 

Demurrer,  on  the  groimd  that  the  words  were  not  in  th^nselves 
defamatory,  and  that  special  damage  consequent  thereon,  therefore, 
gave  no  action.    Joinder  in  demurrer.* 

Jan.  20.  The  judgment  of  the  court  (Lord  Coleridge,  C.  J.,  and 
Keating,  Brett,  and  Denhan,  JJ.)  was  delivered  by 

Lord  CoLERmGE,  C.  J.  In  this  case  time  was  taken  to  consider 
oiu*  judgment,  from  the  wish  entertained  by  at  least  one  member  of 
the  court  to  hold,  if  there  were  authority  for  the  proposition,  that  a 
statement  false  and  malicious  made  by  one  person  in  regard  to  an- 
other, whereby  that  other  might  probably,  imder  some  circmnstances, 
and  at  the  hands  of  some  persons,  suffer  damage,  would,  if  the  damage 
resulted  in  fact,  support  an  action  for  defamation.  No  proposition  less 
wide  in  its  terms  than  this  would  support  the  present  declaration; 
for  to  call  a  man  "  the  ringleader  of  the  nine  hours  sjrstem,"  and  to  say 
of  him  that  he  "  had  ruined  a  place  by  bringing  about  that  sjrstem,'' 
could  not  under  many  circumstances  and  at  the  hands  of  many  people 
do  the  subject  of  such  statement  any  damage  at  all.  But  we  are  unable 
to  find  any  authority  for  a  proposition  so  wide  and  general  in  its  terms 
as  would  alone  support  this  action.^ 

The  rule,  as  laid  down  by  De  Grey,  C.  J.,  in  Onslow  v.  Home,  that 
words  are  actionable  if  they  be  of  probable  ill  consequence  to  a  person 
in  a  trade  or  profession,  or  an  office,  is  expressly  disapproved  of  by  the 
Court  of  Exchequer  in  Lumby  v.  Allday.  Bayley,  B.,  there  says: 
"  Every  authority  which  I  have  been  able  to  find  either  shows  the 
want  of  sopie  general  requisite,  as  honesty,  capacity,  fidelity,  or  the 
like,  or  connects  the  imputation  with  the  plaintiff's  office,  trade,  or 
business."  In  that  case,  the  words  proved  were  a  very  strong  imputa- 
tion on  the  morality  of  the  plaintiff,  who  was  a  clerk  to  a  gas  company. 
But  the  court  held  them  not  actionable,  because  the  imputation  con- 

^  The  statement  of  the  counts  is  abridged,  and  the  arguments  of  coimsel  are 
omitted. 

«  But  see  now  Paterson  v,  Welch,  (Court  of  Sess.  May  31, 1893)  20  R.  744.  See 
also  Odgers,  Lib.  &  SI.  (1st  ed.)  87,  91;  Odgers,  Outlines  of  Law  of  Libel,  17, 18; 
Clerk  &  Lindsell,  Torts.  (1st  ed.)  497-98;  Sahnond,  Torts,  426-27;  Bower's  Code 
of  Actionable  Defamaticm,  338-39,  443-45.  . 


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CHAP.  VIII.]  HATCHARD  V.  MijGE  813 

veyed  by  them  did  not  imply  the  want  of  any  of  those  qualities  which 
a  clerk  ought  to  possess,  and  because  the  imputation  had  no  reference 
to  his  conduct  as  clerk.  That  case  and  the  language  of  Bayley,  B.,  in 
delivering  the  judgment  of  the  court,  have  since  been  repeatedly  ap- 
proved of,  and  are  really  decisive  of  this  case. 

The  words  before  us  are  not  actionable  in  themselves.  No  expres- 
sion in  them  was  argued  to  be  so  except  the  word  "  ringleader;  "  and, 
as  to  that,  it  is  sufficient  perhaps  to  say  that  Dr.  Johnson  points  out 
the  mistake  of  supposing  that  the  word  is  by  any  means  necessarily  a 
word  of  bad  import;  for,  amongst  other  authorities,  he  cites  Barrow 
as  calling  St.  Peter  the  "  ringleader  "  of  the  Apostles.^  Neither  are 
the  words  connected  with  the  trade  or  profession  of  the  plaintiff,  either 
by  averment  or  by  implication;  so  that,  on  neither  ground  can  the 
declaration  be  supported,  l^ere  is  no  averment  here  that  the  con- 
sequence which  followed  was  intended  by  the  defendant  as  the  result 
of  his  words;  and  therefore  it  is  not  necessary  to  consider  the  question 
which  was  suggested  on  the  argument,  whether  words  not  in  them- 
selves actionable  or  defamatory  spoken  under  circumstances  and  to 
persons  likely  to  create  damage  to  the  subject  of  the  words,  are,  when 
the  damage  follows,  ground  of  action.  The  judgment  of  Lord  Wens- 
leydale  in  Lynch  v.  Knight,  9  H.  L.  C,  at  p.  600,  appears  in  favor  of 
the  affirmative  of  this  question.  But  it  is  not  necessary  for  us,  for  the 
reasons  given,  to  express  any  opinion  upon  it;  and  upon  this  demurrer 
there  must  be  judgment  for  the  defendant. 

JttdgmerU  for  the  defendant. 


HATCHARD  v.  MEGE 

In  the  Qubbn's  Bench  Division,  April  1, 1887. 

Reported  in  18  Queen's  Bench  Division  Reports,  771. 

Day,  J.*  This  is  an  application  to  set  aside  a  nonsuit,  which  was 
directed  by  the  Lord  Chief  Justice  on  the  opening  statement  of  coun- 
sel, and  the  question  is  whether  the  nonsuit  was  properly  entered. 

The  statement  of  claim  alleged  that  the  defendants  wrote  and  pub- 
lished '*  of  and  concerning  the  plaintiff  and  his  said  trade  as  a  wine- 
merchant  and  importer  the  following  false  and  malicious  Ubel,  that  is 
to  say:  — 

"  *  Caution:  Delmonico  Champagne.  Messrs.  Delbeck  &  Co.,  find- 
ing that  wine  stated  to  be  Delmonico  champagne  is  being  advertised 

^  '^  It  may  be  reasonable  to  allow  St.  Peter  a  primacy  of  order,  such  a  one  as  the 
ringleader  liath  in  a  daaice."  —  Barrow's  Treatise  of  the  Pope's  Supremacy,  Ox- 
ford edition  of  Works.  1830,  vol.  vii.  p.  70.  In  Fox's  Preface  to  Tyndall's  Works. 
"  these  three  learned  lathers  of  blessed  memory,  William  Tyndall,  John  Frith,  and 
Robert  Barons,"  are  styled  ''  chief  ringleaders  m  these  latter  tymes  of  thys  Church 
of  England."  —  Reporter's  Note. 

*  (Soly  the  opinion  of  Day,  J.,  ia  given.    Wills,  J.,  concurred. 


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814  HATCHARD  V.  M^GE  [CHAP.  VHI. 

for  sale  in  Great  Britain,  hereby  give  notice  that  such  wine  cannot  be 
the  wine  it  is  represented  to  be,  as  no  champagne  shipped  under  that 
name  can  be  genuine  unless  it  has  their  names  on  their  labels.  Messrs. 
Delbeck  &  Co.  further  give  notice  that  if  such  wine  be  shipped  from 
France  they  will  take  proceedings  to  stop  such  shipments,  and  such 
other  proceedings  in  England  as  they  may  be  advised,'  thereby  mean- 
ing that  the  plaintiff  had  no  right  to  use  his  said  roistered  trade- 
mark or  brand  for  champagne  imported  or  sold  by  him,  and  that  in 
using  such  trade-mark  or  brand  he  was  acting  fraudulently,  and  en- 
deavoring to  pass  off  an  inferior  champagne  as  being  of  the  manufac- 
ture of  Messrs.  Delbeck  &  Co.,  and  that  the  champagne  imported  and 
sold  by  the  plaintiff  was  not  genuine  wine,  and  that  no  person  other 
than  the  defendants  had  the  right  to  use  the  word  '  Delmonico  '  as  a 
trade-mark  or  brand,  or  part  of  a  trade-fhark  or  brand,  of  champagne 
in  the  United  Kingdom." 

The  pubUcation  there  set  out  is  complained  of  as  a  Ubel  on  the 
plaintiff  in  relation  to  his  trade.  It  is  substantially  a  warning  not  to 
buy  Delmonico  champagne  because  it  is  not  genuine.  The  statement 
of  claim  alleges  that  the  publication  is  false  and  malicious;  that  would 
be  a  question  for  the  jury;  it  is  not  for  us  to  consider  the  facts  of  the 
case;  we  can  only  look  at  what  was  opened  by  the  plaintiff's  coimsel 
and  what  appears  on  the  pleadings.  The  innuendo  charges  that  the 
defendants  intended  to  convey  the  meaning  that  the  plaintiff  had  no 
right  to  use  his  trade-mark  or  brand,  and  that  the  wine  he  sold  was  not 
genuine.  It  may  be  that  the  pubUcation  bears  that  meaning,  and  that 
the  words  used  import  dishonesty.  The  plaintiff  has  died,  and  the 
question  to  be  decided  is  how  much,  if  any  part,  of  the,  cause  of  action 
survives.  The  statute  4  Edw.  3,  c.  7,  and  the  course  of  practice,  make 
it  clear  that  a  civil  action  for  libel  dies  with  the  death  of  the  person 
libelled.  It  does  not  come  within  the  spirit,  and  certainly  not  within 
the  letter  of  the  statute.  There  is,  however,  a  further  question 
whether  a  right  of  action  can  survive  because  injiuy  to  the  plaintiff's 
trade-mark  is  alleged.  Injury  to  trade  is  constantly  alleged  in  actions 
for  Ubel,  and  therefore  that  does  not  affect  the  question  of  survivor- 
ship. In  the  present  case  the  second  part  of  the  statement  of  claim 
may  be  subdivided  into  two  separate  and  distinct  claims.  The  first  is 
for  ordinary  defamation,  either  independently  of  the  plaintiff's  trade, 
affecting  his  character  by  charging  him  with  being  a  dishonest  man,  or 
defamation  of  him  in  his  trade  by  charging  him  with  being  a  dishonest 
wine-merchant.  That  claim  would  not  survive,  for  it  is  nothing  more 
than  a  claim  in  respect  of  a  Ubel  on  an  individual.  But  this  pubUca- 
tion may  be  construed  to  mean  that  the  plaintiff  had  no  right  to  use  his 
trade-mark.  This  is  not  properly  a  Ubel,  but  is  rather  in  the  nature  of 
slander  of  title,  which  is  weU  defined  in  Odgers  on  Libel  and  Slander, 
c.  V.  p.  137,  in  the  foUowing  passage:  "  But  whoUy  apart  from  these 
cases  there  is  a  branch  of  the  law'  (generaUy  known  by  the  inappro- 


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CHAP.  VIII.]  HATCHARD  V.  MfeOE  815 

riate  but  convenient  name  —  slander  of  title)  which  pennits  an  action 
to  be  brought  against  any  one  who  maliciously  decries  the  plaintiff's 
goods  or  some  other  thing  belonging  to  him,  and  thereby  produces 
special  damage  to  the  plaintiff.  This  is  obviously  no  part  of  the  law  of 
defamation;  for  the  plaintiff's  reputation  remains  uninjured;  it  is 
really  an  action  on  the  case  for  maUciously  acting  in  such  a  way  as  to 
inflict  loss  upon  the  plaintiff.  All  the  preceding  rules  dispensing  with 
proof  of  malice  and  special  damage  are  therefore  wholly  inappUcable 
to  cases  of  this  kind.  Here,  as  in  all  other  actions  on  the  case,  there 
must  be  et  damnum  et  injuria.  The  injuria  consists  in  the  imlawful 
words  mahdously  spoken,  and  the  damnum  is  the  consequent  money 
loss  to  the  plaintiff." 

It  appears,  therefore,  that  the  first  and  last  parts  of  the  innuendo  in 
the  present  case  suggest  slander  of  title.  As  appears  from  the  pas- 
sage I  have  read,  an  action  for  slander  of  title  is  not  an  action  for 
libel,  but  is  rather  in  the  nature  of  an  action  on  the  case  for  maU- 
ciously injuring  a  person  in  respect  of  his  estate  by  as^rting  that  he 
has  no  title  to  it.  The  action  differs  from  an  action  for  libel  in  this, 
that  maUce  is  not  impUed  from  the  fact  of  pubUcation,  but  must  be 
proved,  and  that  the  falsehood  of  the  statement  complained  of,  and  the 
existence  of  special  dainage,  must  also  be  proved  in  order  to  entitle  the 
plaintiff  to  recover.  The  question  whether  the  pubUcation  is  false  and 
maUcious  is  for  the  jiuy.  Here,  I  think,  special  damage  is  aU^ed  by 
the  statement  of  claim,  and  if  the  plaintiff  could  have  shown  injury  to 
the  sale  of  the  wine  which  he  sold  imder  his  trade-mark,  he  would  have 
been  entitled  to  recover,  and  that  is  a  cause  of  action  which  survives. 

For  these  reasons  I  am  of  opinion  that  the  nonsuit  was  right  so  far 
as  it  related  to  the  claim  in  respect  of  a  personal  Ubel,  but  was  wrong 
as  to  the  claim  in  respect  of  so  much  of  the  pubUcation  as  impugned 
the  plaintiff's  right  to  seU  imder  his  trade-mark  or  brand. 

liiere  wiU,  therefore,  be  an  order  for  a  new  trial,  but  it  wiU  be 
limited  to  this  latter  part  of  the  claim.  Order  for  a  new  trial.^ 

1  Slander  of  titie.  Mildmay's  Case,  1  Rep.  175;  Marvin  v.  Maynard,  Cro.  £1. 
419;  Pennyman  v.  Rabanks,  Cro.  Elu.  427:  Newman  v.  Zachary,  Al.  3;  Rowe  v. 
Roach,  1 M.  &  S.*304;  Bignell  v,  Buzsard,  3  U.  &  N.  217;  Webb  v,  Cecil,  9  B.  Mon. 
198;  Ross  v,  I^nes.  Wythe,  71,  3  CaU,  490. 

In  Rowe  v,  Koacn,  supra.  Lord  Ellenborough  said,  p.  310:  "  The  law  makes  no 
allowance  for  the  slimder  ot  strangers,  whatever  it  may  do  in  behalf  of  those  who 
have  a  real  title,  or  a  claim  of  title.  Rei  immucet  se  aliena  is  the  good  sense  which 
must  govern  this  case.  Here  the  defendant  is  a  stranger  himself,  and  shows  no  au- 
thority from  those  who  are  parties  in  interest.'' 

Where  defendant  has  some  interest,  it  is  enough  if  he  actually  believes  what  he 
8a3r8  against  plaintiff's  title. 

Gerard  i;.  tHckenson,  4  Rep.  18  a,  Cro.  El.  196;  Lovett  v.  Weller,  1  Rolle  R. 
409;  Anon.,  Sty.  414;  Pitt  v.  Donovan,  1  M.  &  S.  639;  Smith  v.  Spooner,  3 
Taunt.  246;  Green  v.  Button,  2  C.  M.  &  R.  707;  Pater  v.  Baker,  3  C.  B.  831; 
Watson  V,  Reynolds,  M.  &  M.  1 ;  Carr  v,  Duckett,  5  H.  &  N.  783;  Atkins  v.  Perrin, 
3  F.  &  F.  179;  Brook  v.  RawL  4  Ex.  521;  Burnett  v.  Tak,  46  L.  T.  Rep.  743; 
Steward  v.  Young,  L.  R.  6  C.  P.  122;  Wren  v.  Weild,  L.  R.  4  Q.  B.  730;  Hart  v. 
Wall,  2  C.  P.  D.  146  («emWe);  Baker  v.  Piper,  2  T.  L.  R.  733;  Dicks  v.  Brooks,  16 


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816  MALACHY  V.  SOPER  [CHAP.  VHI. 

MALACHY  V.  SOPER 

In  the  Common  Pleas,  Novbmbeb  25, 1836. 
Reported  in  3  Bingham^  New  Cases,  371. 

TiNDAL,  C.  J.^  In  this  case  a  verdict  having  been  found  for  the 
plaintiff  at  the  trial  of  the  cause  with  £5  damages,  a  motion  has  been 
made  to  arrest  the  judgment  on  the  ground  that  the  declaration  does 
not  state  any  legal  cause  Of  action.  And  we  are  of  opinion  that  this 
objection  is  well  founded;  and  that  the  judgment  must  be  arrested. 

This  is  not  an  ordinary  action  for  defamation  of  the  person,  by  the 
pubUcation  of  slander  either  oral  or  written;  in  which  form  of  action 
no  special  damage  need  either  be  alleged  or  proved;  the  law  presuming 
that  the  uttering  of  the  slanderous  words,  or  the  publishing  of  the  libel, 
have  of  themselves  a  natural  and  necessary  tendency  to  injure  the 
plaintiff.  But  this  is  an  action  to  recover  damages  by  reason  of  the 
publication  of  a  paragraph  in  a  newspaper,  which  contains  no  other 
charge  than  that  the  "  petition  in  a  bill  filed  in  the  Coiui;  of  Chancery 
against  the  plaintiff,  and  certain  other  persons  as  share-owners  in  a 
certain  mine,  for  an  account  and  an  injunction,  had  been  granted  by 
the  Vice-Chancellor,  and  that  persons  duly  authorized  had  arrived 
in  the  workings."  The  pubUcation  therefore  is  one  which  slanders  not 
the  person  or  character  of  the  plaintiff,  but  his  title  as  one  of  the  share- 
holders to  the  undisputed  possession  and  enjoyment  of  his  shares  of 
the  mine.  And  the  objection  taken  is,  that  the  plaintiff,  in  order  to 
maintain  this  action,  must  show  a  special  damage  to  have  happened 
from  the  pubUcation,  and  that  this  declaration  shows  none. 

The  first  question  therefore  is,  does  the  law  require  in  such  an  action 
an  aUegation  of  special  damage  ?  And  looking  at  the  authorities  we 
think  they  aU  point  the  same  way.  The  law  is  clearly  laid  down  in  Sir 
W.  Jones,  196  (Lowe  v.  Harewood) :  "of  slander  of  title,  the  plaintiff 

Ch.  D.  22;  Halsey  i;.  Brotherhood,  19  Ch.  D.  386;  Royal  Co.  v.  Wriffht.  18  Pat. 
Gas.  Rep.  96;  Diinlop  Ck>.  v,  Talbot,  20  T.  L.  R.  579;  Boulton  v.  Shields,  3  Up. 
Can.  OB.  21;  Hill  v.  Ward,  13  Ala.  310;  McDaniel  v.  Baca,  2  Cal.  326;  Thomp- 
son  V.  White,  70  Cal.  136;  Reid  v.  McLendon,  44  Ga.  156;  Van  Tuyl  v,  Riner,  3 
HI.  App.  556;  Stark  v.  Chitwood,  5  Kan.  141 :  Gent  v.  Lynch.  23  Md.  58;  Swan  v. 
Tappan,  5  Cush.  104;  Walkley  v,  Bostwick,  49  Mich.  374;  Chesebro  v.  Powers,  78 
Mich.  472;  Meyrose  v.  Adams,  12  Mo.  App.  329:  Butts  v.  Long,  106  Mo.  App. 
313;  Andrew  v.  Deshler,  45  N.  J.  Law,  167;  Kendall  v.  Stone,  5  N.  Y.  14;  Like  v, 
McKinstry,  4  Keyes,  397, 3  Abb.  App.  62,  41  Barb.  186;  Hovey  v.  Rubber  Co.,  57 
N.  Y.  119;  Dodge  v.  Colby,  37  Hun,  515, 108  N.  Y.  445;  Lovell  Co.  v.  Houghton, 
116  N.  Y.  520;  Hastings  v.  Giles  Co.,  51  Hun,  364,  121  N.  Y.  674;  ComweU  v. 
Parke,  52  Hun,  596, 123  N.  Y.  657;  McElwee  v,  BlackweU,  94  N.  C.  261;  Harriss 
V,  Sneeden,  101  N.  C.  273. 

Compare  Virtue  v.  Creamery  Mfg.  Co.,  123  Minn.  17. 

As  to  the  requirement  of  "  malice,"  see  Coffman  v.  Henderson,  9  Ala.  App.  563; 
Fearon  v.  Fodera,  169  Cal.  370;  Long  v.  Rucker,  166  Mo.  App.  672;  Potosi  Zinc 
Co.  V,  Mahoney,  36  Nev.  390;  Fant  v.  Sullivan,  (Tex.  Civ.  App.)  152  S.  W.  616. 

See  Smith,  Disparagement  of  Property,  13  Columbia  Law  Kev.  13, 12L 

1  Only  the  opinion  of  the  court  is  given. 


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CHAP.  VIII.]  MALACHY  V.  SOPER  817 

shall  not  maintain  action,  unless  it  was  re  vera  a  damage;  scil,,  that 
he  was  hindered  in  sale  of  his  land;  so  there  the  particular  damage 
ought  to  be  alleged.''  And  in  addition  to  the  cases  cited  at  the  bar, 
viz.,  Sir  John  Tasborough  v.  Day,  Cro.  Jac.  484,  and  Manning  v. 
Avery,  Keb.  153,  the  case  of  Cane  v.  Goulding,  Style's  Rep.  169, 176, 
furnishes  a  strong  authority.  That  was  an  action  on  the  case  for  slan- 
dering the  plaintiff's  title,  by  speaking  these  words,  viz.,  "  his  right 
and  title  thereunto  is  nought,  and  I  have  a  better  title  than  he."  The 
words  were  alleged  to  be  spoken  faiso  et  malUiose,  and  that  he  was 
likely  to  sell,  and  was  injured  by  the  words;  and  that  by  reason  of 
speaking  the  words,  he  could  not  recover  his  tithes.  After  verdict  for 
the  plaintiff,  there  was  a  motion  in  arrest  of  judgment;  and  Rolle, 
C.  J.,  said,  "  there  ought  to  be  a  scandal  and  a  particular  damage  set 
forth,  and  there  is  not  here; "  and  upon  its  being  moved  again  and 
Argued  by  the  judges,  Rolle,  C.  J.,  held  that  the  action  did  not  lie, 
although  it  was  alleged  that  the  words  were  spoken  falso  et  maUHose 
for  "  the  plaintiff  ought  to  have  a  special  cause;  but  that,  the  verdict 
might  supply;  but  the  plaintiff  ought  also  to  have  showed  a  special 
damage  which  he  hath  not  done,  and  this  the  verdict  cannot  supply: 
the  declaration  here  is  too  general,  and  upon  which  no  good  issue  can 
be  joined;  and  he  ought  to  have  alleged,  that  there  was  a  communi- 
cation had  before  the  words  spoken  touching  the  sale  of  the  lands 
whereof  the  title  was  slandered,  and  that  by  speaking  of  them  the 
sale  was  hindered;  "  and  cited  several  cases  to  that  effect. 

We  hold,  therefore,  on  the  authority  of  these  cases,  that  an  action 
for  slander  of  title  is  not  properly  an  action  for  words  spoken,  or  for 
libel  written  and  published,  but  an  action  on  the  case  for  special  dam- 
age sustained  by  reason  of  the  speaking  or  publication  of  the  slander 
of  the  plaintiff's  title.  This  action  is  ranged  under  that  division  of 
actions  in  the  Digests,  and  other  writers  on  the  text  law,  and  such  we 
feel  bound  to  hold  it  to  remain  at  the  present  day. 

The  next  question  is,  has  there  been  such  a  special  damage  alleged 
in  this  case,  as  will  satisfy  the  rule  laid  down  by  the  authorities  above 
referred  to  ?  The  doctrine  of  the  older  cases  is,  that  the  plaintiff  ought 
to  aver  that,  by  the  speaking,  he  could  not  sell  or  lease  (Cro.  Eliz.  197, 
Cro.  Car.  140);  and  that  it  will  not  be  sufficient  to  say  only,  that  he 
had  an  intent  to  sell,  without  alleging  a  communication  for  sale  (R.  1 
Roll.  244).  Admitting,  however,  that  these  may  be  put  as  instances 
only,  and  that  there  may  be  many  more  cases  in  which  a  particular 
damage  may  be  equally  apparent  without  such  allegation,  they  estab- 
lish at  least  this,  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.  Now  the  allegation  upon  this  record  is  only 
this,  **  that  the  plaintiff  is  injured  in  his  rights;  and  the  shares  so  pos- 
sessed by  him,  and  in  which  he  is  interested,  have  been  and  are  much 
depreciated  and  lessened  in  value;  and  divers  persons  have  beUeved 


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818  MALACHY  V.  SOPER  [CHAP.  VUI. 

and  do  believe  that  he  has  little  or  no  right  to  the  shares,  and  that  the 
mine  cannot  be  lawfully  worked  or  used  for  his  benefit;  and  that  he 
hath  been  hindered  and  prevented  from  selling  or  disposing  of  his  said 
shares  in  the  said  mine,  and  from  working  and  using  the  same  in  so 
ample  and  beneficial  a  manner  as  he  otherwise  would  have  done." 
And  we  are  of  opinion  that  this  is  not  such  an  allegation  of  special 
damage  as  the  authorities  above  referred  to  require,  where  the  action 
is  not  founded  on  the  words  spoken  or  written,  but  upon  the  special 
damage  sustained. 

It  has  been  argued  in  support  of  the  present  action,  that  it  is  not  so 
much  an  action  for  slander  of  title  as  an  action  for  a  Ubel  on  the  plain- 
tiff in  the  course  of  his  business,  and  in  the  way  of  gaining  his  UveU- 
hood,  and  that  such  an  action  is  strictly  and  properly  an  action  for 
defamation,  and  so  classed  and  held  by  all  the  authorities.  But  we 
think  it  sufficient  to  advert  to  the  declaration,  to  be  convinced  that  the 
pubUcation  complained  of  was  really  and  strictly  a  slander  of  the 
plaintiff's  title  to  his  shares,  and  nothing  else.  The  bill  in  Chancery, 
out  of  which  the  pubUcation  arose,  is  filed  by  Tollervy,  who  disputed 
the  plaintiff's  right  to  the  whole  of  the  shares,  and  claimed  in  himself 
a  right  to  part  of  the  same,  and  prayed  that  he  might  be  declared  to  be 
entitled  to  some  of  them  and  the  only  mention  made  as  to  the  working 
of  the  mines,  was  with  reference  to  the  appointment  of  a  receiver  to 
the  profits  thereof.  And  we  think  it  would  be  doing  violence  to  the 
natural  meaning  of  the  terms  of  the  pubUcation,  if  we  were  to  hold  it 
to  be  published  of  the  plaintiff  in  the  course  of  his  business  or  occupa- 
tion, or  mode  of  acquiring  his  Uvelihood,  and  not  as  referring  to  the 
disputed  title  of  the  shares  of  the  mine. 

It  has  been  urged,  secondly,  that  however  necessary  it  may  be,  ac- 
cording to  the  ancient  authorities,  to  aUege  some  particular  damage  in 
cases  of  imwritten  slander  of  title,  the  case  of  written  slander  stands 
on  different  grounds;  and  that  an  action  may  be  maintained  without 
an  allegation  of  dahiage  actuaUy  sustained,  if  the  plaintiff's  right  be 
impeached  by  a  written  pubUcation,  which  of  itself,  it  is  contended,  af- 
fords presumption  of  injury  to  the  plaintiff.  No  authority  whatever 
has  b^n  cited  in  support  of  this  distinction.  And  we  are  of  opinion 
that  the  necessity  for  an  aUegation  of  actual  damage  in  the  case  of 
slander  of  title,  cannot  depend  upon  the  mediimi  through  which  that 
slander  is  conveyed,  that  is,  whether  it  be  through  "words,  or  writing, 
or  print;  but  that  it  rests  on  the  nature  of  the  action  itself,  namely, 
that  it  is  an  action  for  special  damage  actually  sustained,  and  not  an 
action  for  slander.  The  circumstance  of  the  slander  of  title  being  con- 
veyed in  a  letter  or  other  pubUcation  appears  to  us  to  make  no  other 
difference  than  that  it  is  more  widely  and  permanently  disseminated, 
and  the  damages  in  consequence  more  likely  to  be  serious  than  where 
the  slander  of  title  is  by  words  only;  but  that  it  makes  no  difference 
whatever  in  the  legal  ground  of  action. 


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CHAP.  VIII.]  WHITE  V.  MELLIN  819 

For  these  reasons  we  are  of  opinion,  that  the  action  is  not  maintain- 
able, and  that  the  judgment  must  be  arrested;  and,  consequently,  it 
becomes  unnecessary  to  inquire  whether  the  innuendo  laid  in  the 
declaration  is  more  large  than  it  ought  to  have  been. 

We  therefore  make  the  rule  for  arresting  the  judgment, 

AhBohde} 

WHITE  V.  MELLIN 

In  the  House  of  Lords,  February  14, 1895. 
Reported  in  [1895]  Appeal  Cases,  154. 

The  respondent  was  the  proprietor  of  Mellin's  food  for  infants, 
which  he  sold  in  bottles  enclosed  in  wrappers  bearing  the  words  "  Mel- 
lin's  Infants'  Food."  The  respondent  was  in  the  habit  of  suppljring 
the  appellant  with  these  bottles,  which  the  appellant  sold  again  to  the 
pubUc  after  aflSxing  on  the  respondent's  wrappers  a  label  as  follows :  — 

"  Notice. 

"  The  public  are  recommended  to  try  Dr.  Vance's  prepared  food  for 
infants  and  invalids,  it  being  far  more  nutritious  and  healthful  than 
any  other  preparation  yet  offered.    Sold  in  barrels,  each  contaim'ng 

1  lb.  nett  wei^t,  at  7^d.  each,  or  in  7  lb.  packets  Ss.  9d.  each.  Local 
agent,  Timothy  White,  chemist,  Portsmouth." 

The  appellant  was  the  proprietor  of  Vance's  food.  .Discovering 
this  practice,  the  respondent  brought  an  action  against  the  appellant, 
claiming  an  injunction  to  restrain  him  and  damages. 

At  the  trial  before  Romer,  J.,  the  plaintiff  proved  the  above  facts, 
and  called  two  analysts  and  a  phyBician,  the  result  of  whose  evidence 
is  stated  in  Lord  Herschell's  judgment.  Briefly,  they  testified  that  in 
their  opinion  Mellin's  food  was  suitable  for  infants,  especially  up  to 
the  age  of  six  months,  and  persons  who  could  not  digest  starchy  mat- 

*  Tasburgh  v.  Day,  Cro.  Jac.  484;  Greeham  v.  Grinsley,  Yelv.  88;  Sneade  v. 
Badley,  3  Bulst.  74,  1  Roll.  244;  Law  v.  Harwood,  Cro.  Car.  140,  W.  Jones,  196; 
Cane  v.  Golding,  Sty.  169,  176;  Manning  v.  Avery,  3  Keb.  153;  Haddan  v,  Lott, 
15  C.  B.  411 ;  Evans  v,  Harlow,  5  Q.  B.  624;  Ashford  v.  Choate.  20  Up.  Can;  C.  P. 
471;  Collins  v.  Whitehead,  34  Fed.  121;  Eberaole  v.  Fields,  181  Ala.  421;  Stark 
V,  Chitwood,  5  Kan.  141;  Continental  Co.  v.  Little,  135  Ky.  618;  Swan  v.  Tappan, 

5  Cush.  104;  Gott  v.  Pulsifer,  122  Mass.  235;  Dooling  v.  Budget  Co.,  144  Mass. 
258;  Boynton  v.  Shaw  Co.,  146  Mass.  219;  Wilson  v.  Dubois,  35  Minn.  471 ;  Tobias 
V,  Harland,  4  Wend.  537;  Madison  Church  v,  Madison  Church,  26  How.  Pr.  72; 
Linden  v.  Graham,  1  Duer,  670;  Bailey  v.  Dean,  5  Barb.  297;  KendaU  v.  Stone, 

6  N.  Y.  14;  Kennedy  v.  Press  Co.,  41  Hun,  422;  Childs  v.  TutUe,  48  Hun,  228; 
Maglio  V.  N.  Y.  Co.,  93  App.  Div.  546;  Felt  v.  Gennania  Life  Ins.  Co.,  149  App. 
Div.  14:  Witteman  Bros.  t;.  Witteman  Co.,  88  Misc.  266;  McGuinness  v.  Hargiss, 
66  Wash.  162  Accord, 

Compare  Fleming  t^.  McDonald,  230  Pa.  St.  75. 

The  breach  of  a  contract  by  a  third  person  is  special  damage.   Green  v.  Button, 

2  C.  M.  &  R.  707.   But  see  contra,  Kendall  v.  Stone,  5  N.  Y.  14;  Brentman  v.  Note, 

3  N.  Y.  Sup,  420  (N.  Y.  City  Court). 


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820  WHITE  V.  MELLIN  [CHAP.  VHI. 

ters,  and  that  Vance's  food  was  unsuitable  for  such  beings,  nay  per- 
nicious and  dangerous  for  very  young  infants.  At  the  close  of  the 
plaintifif's  case  Romer,  J.,  being  of  opinion  that  the  label  was  merely 
the  puff  of  a  rival  trader  and  that  no  cause  of  action  was  disclosed, 
dismissed  the  action  with  costs.  The  Court  of  Appeal  (Lindley, 
Lopes,  and  Kay,  L.JJ.)  being  of  opinion  that  the  cause  ought  to  have 
been  heard  out,  discharged  that  judgment  and  ordered  a  new  trial, 
[1894]  3  Ch.  276.1 
Lord  Herschell,  L.  C.  (after  stating  the  facts) :  — 
My  Lords,  in  the  CJourt  of  Appeal  Lindley,  L.  J.,  stated  the  law 
thus:  "  If  upon  hearing  the  whole  of  the  evidence  to  be  adduced  be- 
fore him  the  result  should  be  that  the  statement  contained  in  the 
label  complained  of  is  a  false  statement  about  the  plaintiff's  goods  to 
the  disparagement  of  them,  and  if  that  statement  has  caused  injury 
to  or  is  calculated  to  injure  the  plaintiff,  this  action  will  he."  Lopes, 
L.  J.,  said:  "  All  I  desire  to  say  is  that,  in  my  opinion,  it  is  action- 
able to  publish  maliciously  without  lawful  occasion  a  false  statement 
disparaging  the  goods  of  another  person  and  causing  such  other  per- 
son damage,  or  likely  to  cause  such  other  person  damage." 

None  of  the  learned  judges  in  the  Court  of  Appeal  dealt  with  the 
evidence  which  had  been  adduced  on  behalf  of  the  plaintiff;  but  I 
think  it  must  be  taken  that  they  had  arrived  at  the  conclusion  that 
that  evidence  did  bring  the  case  within  those  statements  of  the  law. 
Of  course,  if  the  plaintiff,  on  his  evidence,  had  made  out  no  case,  he 
could  not  CQmplsdn  that  the  learned  judge  decided  against  hftn  and 
did  not  hear  the  witnesses  for  the  defendant;  the  action  was  in  that 
case  properly  dismissed.  I  take  it,  therefore,  that  although  the  learned 
judges  did  not  analyse  the  evidence  or  make  any  reference  to  it,  they 
must  have  concluded  that  it  established  a  case  coming  within  the  law 
as  they  laid  it  down.  My  Lords,  as  I  understand,  in  the  view  of 
those  learned  judges,  or  in  the  view  of  Lindley,  L.  J.,  to  take  his 
statement  of  the  law  in  the  first  place,  it  was  necessary  in  order  to 
the  maintenance  of  the  action  that  three  things  should  be  proved: 
that  the  defendant  had  disparaged  the  plaintiff's  goods,  that  such  dis- 
paragement was  false,  and  that  damage  had  resulted  or  was  likely  to 
result.  Now,  my  Lords,  the  only  statement  made  by  the  defendant 
by  means  of  the  advertisement  is  this:  that  Vance's  food  was  the 
most  healthful  and  nutritious  for  infants  and  invalids  that  had  been 
offered  to  the  pubUc.  The  statement  was  perfectly  general,  and  would 
apply  in  its  terms  not  only  to  the  respondent's  infants'  food  but  to  all 
others  that  were  offered  to  the  public.  I  will  take  it  as  suJBSciently 
pointed  at  the  plaintiff's  food  by  reason  of  its  being  affixed  to  a  bottle 
of  the  plaintiff's  food  when  sold,  and  that  it  does  disparage  the  plain- 
tiff's goods  by  asserting  that  they  are  not  as  healthful  and  as  nutri- 

1  The  arguments  and  the  concurring  opinions  of  Lords  Watson,  Macnaghten, 
Morris,  and  Shand  are  omitted. 


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CHAP.  VIII.]  WHITE  V.  MBLLIN  821 

tious  as  those  recommended  by  the  defendant.  The  question  then 
arises,  Has  it  been  proved  on  the  plaintiff's  own  evidence  that  that  was 
a  false  disparagement  of  the  plaintiff's  goods  ? 

I  will  state  what  I  imderstand  to  be  the  result  of  the  plaintiff's 
evidence.  Mellin's  food  for  infants  and  invalids  is  a  preparation  of 
such  a  nature  that  the  food  is  said  to  be  predigested,  and  therefore 
not  to  make  that  call  upon  the  digestion  which  food  ordinarily  does; 
that  as  regards  children  under  six  months  of  age  Mellin's  food  is  the 
only  one  which  could  be  suitably  used  in  the  place  of  the  ordinary 
means  of  nourishment,  the  mother's  milk,  and  that  any  farinaceous 
food  would  at  that  age  be  not  only  not  nutritious  but  prejudicial.  And 
so  far,  accepting  the  plaintiff's  evidence  for  this  purpose,  there  being 
no  evidence  to  the  contrary,  the  plaintiff,  I  think,  establishes  that  his 
food  was  specially  meritorious  for  that  class  of  cases,  and  that  it 
would  not  be  correct  to  say  that  as  regards  these  children  of  very 
tender  age  Vance's  food  or  any  other  farinaceous  food  would  be  not 
only  more  healthful  and  nutritious,  but  as  healthful  and  nutritious. 
But  then  it  appears  that  when  a  child  has  passed  the  age  up  to  which 
nutrition  at  tiie  breast  may  ordinarily  be  said  to  continue,  the  use  of 
some  farinaceous  food  is  not  only  not  prejudicial  but  desirable,  and 
that  if  the  child  were  to  be  alwa3rs  brought  up  upon  a  food  which 
would  be  suitable  during  the  very  earliest  weeks  or  months,  its  diges- 
tion would  be  likely  to  suffer  rather  than  benefit,  and  there  would  be 
not  more,  but  less  nourishment.  After  twelve  months,  as  I  under- 
stand the  evidence,  the  farinaceous  food  would  be  distinctly  better 
for  the  purposes  of  nutrition  and  health  than  this  pre-digested  food. 
That,  my  Lords,  I  take  to  be  a  fair  statement  of  the  result  of  the  evi- 
dence. Can  it  be  said,  under  those  circumstances,  that  it  is  a  false 
disparagement  of  the  plaintiff's  goods  to  say  that  this  other  prepara- 
tion—  Vance's  —  is  more  nutritious  and  healthful  for  infants  and 
invalids  ?  I  put  aside  the  question  of  invalids:  upon  that  there  was 
no  evidence  at  all.  The  plaintiff  did  not  say  that  his  was  more  health- 
ful, or  that  the  defendant's  was  not  more  healthful.  It  is  therefore 
unnecessary  to  consider  the  case  of  invaUds,  and  it  is  enough  to  con- 
fine one's  attention  to  the  case  of  infants. 

The  word  "  infants  "  is  not  in  ordinary  parlance  confined  to  children 
of  very  tender  age.  If  one  looks  at  its  derivation  etymologically  it 
would  apply  to  children  so  long  as  they  are  not  able  to  articulate  dis- 
tinctly —  not  able  to  speak  —  and  nobody  would  hesitate  to  refer  to 
children,  I  should  say,  at  least  imder  two  years  of  age  as  infants,  just 
as  much  as  they  would  to  children  imder  six  months  of  age.  There- 
fore, if  you  look  at  the  class  of  infants  as  a  whole,  it  is  by  no  means 
shown  that  the  statement  that  Vance's  food  is  more  nutritious  and 
healthful  than  the  plaintiff's  food  is  false.  If  the  reference  had  been 
specially  to  that  very  early  period  of  life  during  which  Mellin's  food 
would  be  beneficial  and  the  other  prejudicial,  no  doubt  a  statement  of 


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822  WHITE  V.  MELLIN  [CHAP.  VHI. 

that  description  might  well  be  said  to  be  a  false  statement;  but  look- 
ing fairly  at  the  language  used  and  the  meaning  to  be  attributed  to 
it,  I  am  not  satisfied  that  it  has  been  shown  that  by  means  of  this 
advertisement  the  defendant  falsely  disparaged  the  plaintiff's  goods. 
But,  my  Lords,  assuming  that  he  did  so,  the  Court  of  Appeal  regarded 
it  as  requisite  for  the  maintenance  of  the  action  that  something  fur- 
ther should  be  proved,  and  that  is  that  the  disparaging  statement  has 
caused  injury  to  or  is  calculated  to  injure  the  plaintiff.  Upon  that 
there  is  a  complete  absence  of  evidence.  The  plaintiff  was  called, 
but  he  did  not  state  that  he  had  sustained  any  injiuy,  nor  did  he  even 
say  that  it  was  calculated  to  injure  him,  and  I  own  it  seems  to  me 
impossible,  in  the  absence  of  any  such  statement  or  evidence,  to  say 
that  it  is  a  case  in  which  such  must  be  the  necessary  consequence;  on 
the  contrary,  speaking  for  myself,  I  should  doubt  very  much  whether 
it  was  likely  to  be  the  consequence.  After  all,  the  advertis^nent  is 
of  a  very  common  description,  puffing,  it  may  be,  extremely  and  in  an 
exaggerated  fashion,  these  particular  goods,  Vance's  food.  That  ad- 
vertisement was  outside  the  wrapper;  inside  was  found  an  adver- 
tisement of  Mellin's  food,  in  whidi  Mellin's  food  was  stated  to  be 
recommended  by  the  faculty  as  best  for  infants  and  invalids.  Why 
is  it  to  be  supposed  that  any  one  buying  this  bottle  at  the  chemist's 
would  be  led  to  believe  that  Mellin's  food  which  he  had  bought  was 
not  a  good  article  or  not  as  good  an  article  as  another,  merely  because 
a  person  who  obviously  was  seeking  to  push  a  rival  article  said  that 
his  article  was  better  ?  My  Lords,  why  should  people  give  such  a 
special  weight  to  this  anonymous  puff  of  Vance's  food,  obviously  the 
work  of  some  one  who  wanted  to  sell  it,  as  that  it  should  lead  him  to 
determine  to  buy  it  instead  of  Mellin's  food,  which  was  said  to  be 
recommended  by  the  faculty  as  the  best  for  infants  and  invalids  ?  I 
confess  I  do  not  wonder  that  the  plaintiff  did  not  insist  that  he  had 
sustained  injiuy  by  what  the  defendant  had  done.  There  is  an  entire 
absence  of  any  evidence  that  the  statement  complained  of  either  had 
injured  or  was  calculated  to  injure  the  plaintiff.  K  so,  then  the  case 
is  not  brought  even  within  the  definition  of  the  law  which  Lindley, 
L.  J.,  gives. 

Lopes,  L.  J.,  adds  the  word  "  maliciously,"  that  "  it  is  actionable 
to  publish  maUciously  without  lawful  occasion  a  false  statement  dis- 
paraging the  goods  of  another  person."  By  that  it  may  be  intended 
to  indicate  that  the  object  of  the  publication  must  be  to  injure  an- 
other person,  and  that  the  advertisement  is  not  published  bona  fide 
merely  to  sell  the  advertiser's  own  goods,  or  at  all  events,  that  he 
published  it  with  a  knowledge  of  its  falsity.  One  or  other  of  those 
elements,  it  seems  to  me,  must  be  intended  by  the  addition  of  the 
word  "  maUciously."  Both  those  are  certainly  absent  here.  There 
is  nothing  to  show  that  the  object  of  the  defendant  was  other  than  to 
puff  his  own  goods  and  so  sell  them,  nor  is  there  anything  to  show 
that  he  did  not  believe  that  his  food  was  better  than  any  other. 


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CHAP.  Vni.]  WHITE  V.  MELLIN  823 

The  only  case  which  the  learned  counsel  for  the  respondent  was 
able  to  rely  upon  as  at  all  approaching  the  present  is  the  case  of  the 
Western  Counties  Manure  Company  v,  Lawes  Chemical  Manure  Com- 
pany, L.  R.  9  Ex.  218,  in  which  case  a  declaration  was  held  good 
which  alleged  the  disparagement  of  the  plaintiff's  goods  by  stating  that 
they  were  inferior  to  those  sold  by  the  defendants.^  In  that  case  spe- 
cial damage  was  alleged  in  the  declaration,  and  I  think  that  that  alle- 
gation was  regarded  by  both  the  learned  judges  who  were  parties  to 
the  decision  as  material  and  essential.  In  the  earUer  case  of  Evans  v. 
Harlow,  5  Q.  B.  624,  a  statement  was  complained  of  which  distinctly 
disparaged  the  plaintiff's  goods.  It  cautioned  the  pubUc  against 
them,  it  pointed  out  to  the  pubUc  that  they  were  not  likely  to  reaUze 
the  purpose  for  which  they  were  designed,  and  the  allegation  was  that 
**  the  defendant  published  a  Ubel  of  and  concerning  the  plaintiff  and 
of  and  concerning  him  in  his  said  trade  and  oi  and  concerning  his  de- 
sign as  follows.''  In  that  case  there  was  no  allegation  of  special  dam- 
age; there  was  a  demurrer  to  the  declaration,  and  the  declaration  was 
held  bad.  Now,  the  only  distinction  that  I  can  see  between  that  case 
and  the  case  of  the  Western  Counties  Manure  Company  v.  Lawes 
Chemical  Manure  Company  is  that  in  the  latter  case  special  damage 
was  alleged,  whereas  in  the  former  it  was  not.  BramweU,  B.,  does  not 
call  specific  attention  to  the  differentia  between  the  case  before  him 
and  the  case  of  Evans  v.  Harlow,  but  he  says  that  there  is  nothing  in 
any  of  the  cases  inconsistent  with  the  judgment  which  he  is  pronoimc- 
ing.  Pollock,  B.,  who  was  the  other  judge,  pointed  out  that  in  Evans 
V.  Harlow  there  was  no  allegation  of  special  damage.  Therefore,  my 
Lords,  the  utmost  that  the  Western  Counties  Manure  Company  v. 
Lawes  Chemical  Manure  Company,  L.  R.  9  Ex.  218,  can  be  claimed 
as  an  authority  for  is  this,  that  an  action  will  he  for  falsely  disparaging 
another's  goods  where  special  damage  results.  Evans  v.  Harlow,  5 
Q.  B.  624,  is  a  distinct  authority  that  it  will  not  Ue  where  special  dam- 
age does  not  result.  In  the  present  case  it  cannot  be  pretended  that 
any  special  damage  was  either  alleged  or  proved. 

Mr.  Moulton  sought  to  extricate  himself  from  that  diflSculty  in  this 
way:  he  said  that  if  this  were  an  action  for  damages  that  might  be  a 
well-foimded  objection  to  it,  but  that  it  is  not  an  action  for  damages 
but  a  claim  for  an  injunction,  and  that  although  it  may  be  that  to 
support  an  action  for  damages  it  would  be  necessary  to  allege  and 
prove  special  damage,  that  is  not  necessary  where  an  injunction  is 
claimed  —  that  it  is  enough  if  a  false  statement  is  made  and  is  likely 
to  be  repeated. 

1  Disparagement  of  goods.  In  the  case  cited  it  was  held  actionable  to  say  falsely 
that  plamtifits'  manure  was  inferior  to  defendants'  if  done  without  le^  excuse. 
Young  V.  Macrae,  3  B.  &  S.  264;  Alcott  v.  Millar,  21  T.  L.  R.  30;  Dooling  v. 
Budget  Co.,  144  Mass.  258  (semble);  Boynton  i;.  Shaw  Co.,  146  Mass.  219;  Wil- 
son V.  Dubois,  36  Minn.  471;  Wier  v.  Allen.  51  N.  H.  177;  Snow  i;.  Judson,  38 
Barb.  210;  Kennedy  v.  Press  Co.,  41  Hun,  422  (semble);  Paull  v.  Halferty,  63  Pa. 
St.  46;  Young  v.  Geiske,  209  Pa.  St.  515  Accord: 


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824  WHITE  V.  MELLIN  [CHAP.  VIII. 

Now  my  Lords,  no  authority  was  cited  to  show  that  a  Court  of 
Equity  under  any  of  the  branches  of  its  jurisdiction  had  ever  granted 
or  would  grant  an  injunction  in  such  a  case.  Certainly  there  is  no 
rule  of  equity  under  which  it  may  be  said  generally  that  a  Court  of 
Equity  would  restrain  every  pubUcation  of  a  false  statement.  In  the 
case  of  Canham  v.  Jones,  2  V.  &  B.  218,  the  bill  stated  that  a  certain 
Mr.  Swainson  had  been  the  sole  proprietor  of  a  secret  for  preparing 
the  medicine  called  "  Velno's  Vegetable  Syrup,"  and  that  the  plaintiff 
had  obtained  title  to  it  imder  his  will  and  had  sold  the  medicine. 
Then  the  complaint  was  that  the  defendant,  who  had  been  a  servant 
of  Swainson,  was  employed  in  the  preparation  of  the  syrup  but  was 
not  acquainted  with  the  complete  preparation,  certain  essential  in- 
gredients being  introduced  only  by  Swainson  himself  and  only  in  the 
presence  of  the  plaintiff.  Then  it  alleged  "  that  the  defendant  being 
discharged  from  his  service  had  made  and  advertised  for  sale  a  spuri- 
ous preparation  under  the  name  of  Velno's  Vegetable  Syrup,  stated 
by  him  to  be  the  same  medicine  in  composition  and  quality  as  that 
made  by  Swainson  and  the  plaintiff,  the  defendant's  advertisement 
certifying  that  the  medicine  prepared  by  him  at  his  residence  under 
the  name  of  Velno's  Vegetable  Syrup  is  precisely  the  same  with  that 
made  and  sold  by  the  late  Mr.  Swainson."  It  was  alleged  that  that 
was  untrue,  and  that  it  was  a  spurious  preparation  pretending  to  be 
the  same  when  it  really  was  not.  To  that  bill  the  defendant  put  in  a 
general  demurrer  for  want  of  equity.  That  demurrer  was  sustained 
by  the  Vice-Chancellor,  Sir  Thomas  Plimier,  although  for  the  pur- 
poses of  that  demurrer  it  was  taken  that  the  defendant  selling  this 
article  was  falsely  stating  that  it  was  the  same  as  the  plaintiff's. 

My  Lords,  the  learned  counsel  relied  upon  recent  cases  in  which 
an  injimction  has  been  granted  to  restrain  the  publication  of  a  libel, 
and  he  suggested  that  there  had  been  a  growth  of  equity  jurispru- 
dence which  had  brought  within  its  ambit  a  class  of  cases  which  w^re 
previously  not  regarded  as  within  it.  But  when  the  case  in  which  the 
Court  of  Appeal  laid  down  that  an  injunction  might  be  granted  to 
restrain  the  publication  of  a  libel  is  looked  at,  it  will  be  seen  that  the 
decision  was  not  founded  upon  any  principle  or  rule  of  equity  juris- 
prudence, but  upon  the  fact  that  a  Court  of  Common  Law  could  have 
granted  such  an  injunction  in  an  action  of  libel,  and  that  since  the 
Judicature  Act  the  power  which  a  Court  of  Common  Law  possessed 
in  that  respect  is  now  possessed  also  by  the  Court  of  Chancery.  That 
was  distinctly  the  ground  upon  which  the  judgment  was  founded,  that 
"  the  79th  and  82d  sections  of  the  Common  Law  Procedure  Act  1854 
imdoubtedly  conferred  on  the  Courts  of  Common  Law  the  power,  if  a 
fit  case  should  arise,  to  grant  injunctions  at  any  stage  of  a  cause  in  all 
personal  actions  of  contract  or  tort,  with  no  limitation  as  to  defama- 
tion; ''  and  then,  inasmuch  as  those  powers  are  now  possessed  by  the 


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CHAP.  Vni,]  WHITE  V.  MELLIN  825 

Chancery  Division,  it  was  held  that  they  likewise  could  in  such  cases 
grant  an  injimction.  That  was  the  decision  in  Bonnard  v.  Ferryman, 
[1891]  2  Ch.  269. 

My  Lords,  obviously  to  call  for  the  exercise  of  that  power  it  would 
be  necessary  to  show  that  there  was  an  actionable  wrong  well  laid, 
and  if  the  statement  only  showed  a  part  of  that  which  was  necessary 
to  make  up  a  cause  of  action  —  that  is  to  say,  if  special  damage  was 
necessary  to  the  maintenance  of  the  action,  and  that  special  damage 
was  not  shown  —  a  tort  in  the  eye  of  the  law  would  not  be  disclosed, 
the  case  would  not  be  within  those  provisions,  and  no  injunction 
would  be  granted.  I  think,  therefore,  for  these  reasons,  that  the 
plaintiff  would  not  be  entitled  to  an  injimction,  any  more  than  he 
would  be  entitled  to  maintain  an  action  unless  he  established  all  that 
was  necessary  to  make  out  that  a  tort  had  been  committed;  and  for 
the  reasons  which  I  have  given,  taking  the  Western  Counties  Manure 
Company  v.  Lawes  Chemical  Manure  Company,  L.  R.  9  Ex.  218,  to 
be  good  law,  he  has  not  brought  himself  within  it. 

But,  my  Lords,  I  cannot  help  saying  that  I  entertain  very  grave 
doubts  whether  any  action  could  be  maintained  for  an  allied  dispar- 
agement of  another's  goods,  merely  on  the  allegation  that  the  goods 
sold  by  the  party  who  is  allied  to  have  disparaged  his  competitor's 
goods  are  better  either  generally  or  in  this  or  that  particular  respect 
than  his  competitor's  are.  Of  coiu^e,  I  put  aside  the  question  (it  is 
not  necessary  to  consider  it)  whether  where  a  person  intending  to 
injure  another,  and  not  in  the  exercise  of  his  own  trade  and  vaimting 
his  own  goods,  has  maUciously  and  falsely  disparaged  the  goods  of 
another,  an  action  wiU  lie;  I  am  dealing  with  the  class  of  cases  which 
is  now  before  us,  where  the  only  disparagement  consists  in  vaunting 
the  superiority  of  the  defendant's  own  goods.  In  Evans  v.  Harlow 
Lord  Denman  expressed  himself  thus:  "The  gist  of  the  complaint 
is  the  defendant's  telling  the  world  that  the  lubricators  sold  by  the 
plaintiff  were  not  good  for  their  purpose,  but  wasted  the  tallow.  A 
tradesman  offering  goods  for  sale  exposes  himself  to  observations  of 
this  kind,  and  it  is  not  by  averring  them  to  be  '  false,  scandalous,  ma- 
licious, and  defamatory  '  that  the  plaintiff  can  found  a  charge  of  Ubel 
upon  them.  To  decide  so  would  open  a  very  wide  door  to  litigation, 
and  might  expose  every  man  who  said  his  goods  were  better  than  an- 
other's to  the  risk  of  an  action."  My  Lords,  those  observations  seem 
to  me  to  be  replete  with  good  sense.  It  is  to  be  observed  that  Evans 
V,  Harlow,  5  Q.  B.  624,  does  not  appear  to  have  been  decided  on  the 
ground  merely  that  there  was  no  allegation  of  special  damage.  The 
only  judge  who  alludes  to  the  absence  of  such  an  allegation  is  Pat- 
teson,  J.  No  reference  to  it  is  to  be  foimd  either  in  the  judgment  of 
Lord  Denman  or  in  the  judgment  of  Wightman,  J.,  the  other  two 
judges  who  took  part  in  that  decision;  and  I  think  it  is  impossible 


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826  WHITE  V.  MELLIN  [CHAP.  VUI. 

not  to  see  that,  as  Lord  Denman  says,  a  very  wide  door  indeed  would 
be  opened  to  litigation,  and  that  the  courts  might  be  constantly  ^n- 
ployed  in  trying  the  relative  merits  of  rival  productions,  if  an  action 
of  this  kind  were  allowed. 

Mr.  Moulton  sought  to  distinguish  the  present  case  by  saying  that 
all  that  Lord  Denman  referred  to  was  one  tradesman  saying  that  his 
goods  were  better  than  his  rival's.  That,  he  said,  is  a  matter  of  opin- 
ion, but  whether  they  are  more  healthful  and  more  nutritious  is  a 
question  of  fact.  My  Lords,  I  do  not  think  it  is  possible  to  draw 
such  a  distinction.  The  allegation  of  a  tradesman  that  his  goods  are 
better  than  his  neighbor's  very  often  involves  only  the  consideration 
whether  they  possess  one  or  two  qualities  superior  to  the  other.  Of 
course  ''  better  "  means  better  as  regards  the  purpose  for  which  they 
are  intended,  and  the  question  of  better  or  worse  in  many  cases  de- 
pends simply  upon  one  or  two  or  three  issues  of  fact.  If  an  action 
will  not  he  because  a  man  says  that  his  goods  are  better  than  his 
neighbor's,  it  seems  to  me  impossible  to  say  that  it  will  lie  because 
he  says  that  they  are  better  in  this  or  that  or  the  other  respect.  Just 
consider  what  a  door  would  be  opened  if  this  were  permitted.  That 
this  sort  of  puffing  advertisement  is  in  use  is  notorious;  and  we  see 
rival  cures  advertised  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 
machinery  for  advertising  rival  productions  by  obtaining  a  judicial 
determination  which  of  the  two  was  the  better.  As  I  said,  advertise- 
ments and  announcements  of  that  description  have  hem  common 
enough;  but  the  case  of  Evans  v.  Harlow,  5.  Q.  B.  624,  was  decided  in 
the  year  1844,  somewhat  over  half  a  century  ago,  and  the  fact  that 
no  such  action  —  imless  it  be  Western  Coimties  Mjanure  Co.  v.  Lawes 
Chanical  Manure  Co.,  L.  R.  9  Ex.  218  —  has  ever  been  maintained 
in  the  Courts  of  Justice  is  very  strong  indeed  to  show  that  it  is  not 
maintainable.  It  is,  indeed,  unnecessary  to  decide  the  point  in  order 
to  dispose  of  the  present  appeal. 

For  the  reasons  which  I  have  given  I  have  come  to  the  conclusion 
that  the  judgment  of  the  court  below  cannot  be  sustained,  even  as- 
suming the  law^  to  be  as  stated  by  the  learned  judges;  but  inasmuch 
as  the  case  is  one  of  great  importance^  and  some  additional  color 
would  be  lent  to  the  idea  that  an  action  of  this  description  was  main- 
tainable by  the  observations  in  the  court  below,  I  have  thought  it 
only  right  to  express  my  grave  doubts  whether  any  such  action  could 
be  maintained  even  if  the  facts  brought  the  case  within  the  law  there 
laid  down. 

Upon  the  whole,  therefore,  I  think  that  the  judgment  of  Homer,  J., 
was  right  and  ought  to  be  restored  and  that  this  appeal  should  be 


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CHAP.  VIII.]  STONE  V.  CARLAN  827 

allowed,  with  the  usual  result  as  to  costs;  and  I  so  move  your  Lord- 
ships. 

Order  of  the  Court  of  Appeal  reversed;  Judgment  of  Romer,  J.,  re- 
stored,  with  costs  here  and  in  (he  Court  of  Appeal;  Cause  remitted  to 
the  Chancery  Division} 


STONE  V.  CARLAN 
SuFEBJOB  Court,  New  York,  1850. 
Reported  in  13  Law  Reporter,  360. 

The  important  facts  of  this  case  appear  in  the  opinion  of  the  court. 

Campbell,  J.  A  motion  is  made  for  an  injimction  restraining  the 
defendants  from  using  the  names  "  Irving  Hotel,"  "  Irving  House," 
"  Irving,"  Ac,  upon  their  coaches  and  upon  certain  badges  worn  by 
defendants  upon  their  arms  and  hats.  The  complainants  have  an 
agreement  with  the  proprietors  of  the  Irving  House,  in  this  city,  under 
which  they  are  permitted  to  use  the  name  of  such  proprietors,  and  the 
name  of  tiieir  hotel,  upon  their  coaches  and  the  badges  of  their  serv- 
ants; the  complainants  paying  therefor  a  stipulated  smn,  and  having 
also  entered  into  bonds  for  the  faithful  discharge  of  these  duties.  All 
the  porters  are  engaged  in  carrying  passengers  and  their  baggage  to 
and  from  the  hotels,  boats,  railroad  depots,  &c. 

It  was  well  remarked  by  the  Master  of  the  Rolls,  in  Croft  v.  Day, 
7  Bevan,  84,  that ''  No  man  has  a  right  to  dress  himself  in  colors,  or 
adopt  and  bear  sjnnbols,  to  which  he  has  no  peculiar  or  exclusive  right, 
and  thereby  personate  another  person,  for  the  purpose  of  inducing  the 
public  to  suppose,  either  that  he  is  that  other  person,  or  that  he  is 
connected  with  and  selling  the  manufacture  of  such  other  person,  while 
he  is  really  selling  his  own.  It  is  perfectly  manifest  that  to  do  these 
things  is  to  commit  a  fraud,  and  a  very  gross  fraud.  I  stated  upon  a 
former  occasion,  that,  in  my  opinion,  the  ri^t  which  any  person  may 
have  to  the  protection  of  this  court  does  not  depend  upon  any  exclu- 
sive right  which  he  may  be  supposed  to  have  to  a  particular  name,  or 
to  a  particular  form  of  words.  His  right  is  to  be  protected  against 
fraud;  and  fraud  may  be  practised  against  him  by  means  of  a  name, 
thou^  the  person  practising  it  may  have  a  perfect  right  to  use  that 
name,  provided  he  does  not  accompany  the  use  of  it  with  such  other 
circumstances  as  to  effect  a  fraud  upon  others."  I  entirely  concur  in 
the  foregoing  views.  The  question  is,  whether  the  defendants  have 
committed  a  fraud.  I  cannot  doubt  that  their  intention  was  to  mis- 
lead, and  to  induce  travellers  to  believe  that  they  were  servants  of  the 
proprietors  of  the  Irving  House.    This  is  a  large  and  popular  hotel, 

1  Lyne  v.  Nicholls,  23  T.  L.  R.  86;  Barrett  v.  Associated  Newspapers,  23  T.  L. 
R.  66b;  Burkett  v.  Griffith,  90  Cal.  532  Accord, 

Compare  Marlin  Fire  Arms  Co.  v.  Shields,  171  N.  Y.  384. 


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828  STONE  V.  CARLAN  [CHAP.  VIH. 

well  known  in  the  country,  and  many  a  traveller  may  wish  to  resort  to 
it  on  his  arrival  in  this  city,  who,  at  the  same  time,  may  not  know 
whether  the  carriages  of  the  proprietors  are  painted  red  or  white,  or 
whether  the  exact  designation  is  that  of  the  Irving  House  or  Irving 
Hotel.  Such  traveller  may  wish  to  intrust  himself  and  his  baggage  to 
the  servants  of  the  hotel,  feeling  that,  in  doing  so,  he  would  be  pro- 
tected against  loss  or  damage  by  the  responsibility  of  the  proprietors. 
Now,  in  this  case,  it  can  hardly  be  doubted  but  that  the  object  of  the 
defendant  was  to  induce  the  belief  on  the  part  of  the  travellers  that 
they  were  the  servants  of  this  hotel.  To  induce  such  belief,  it  was  not 
necessary  that  the  resemblance  of  all  carriages  and  badges  should  be 
complete.  From  the  very  circumstances  of  the  case,  it  would  not  be 
necessary  to  have  a  perfect  resemblance,  in  order  to  commit  even  a 
gross  fraud.  It  is  not  necessary  to  go,  in  this  case,  the  length  of  the 
ordinary  cases  of  trade-marks,  thou^  this  case  might  come  within 
the  rules  of  those  cases.  (See  Coates  v.  HoUuck,  2  Sanford  Ch.  R., 
and  Notes,  and  cases  there  cited.)  The  false  pretences  of  the  defend- 
ants would,  I  think,  necessarily  tend  to  mislead.  The  defendants  have 
a  perfect  right  to  engage  in  a  spirited  competition  in  conveyance  of 
passengers  and  their  baggage.  They  may  employ  better  carriages  than 
the  plaintiffs.  They  may  carry  for  less  fare.  They  may  be  more 
active,  energetic,  and  attentive.  The  employment  is  open  to  them, 
but  "  they  must  not  dress  themselves  in  colors,  and  adopt  and  bear 
symbols,"  which  belong  to  others.  I  had  some  doubt,  at  the  time  of 
the  argimient,  whether  the  complaint  should  not  have  been  made  by 
the  proprietors  of  the  Irving  House;  but,  on  further  reflection,  think 
that  the  suit  is  well  brought.  The  plaintiffs  are  the  real  parties  in 
interest.  It  is  possible  that,  owing  to  the  general  liability  of  the  pro- 
prietors, as  innkeepers,  for  the  loss  of  the  property  of  guests,  the  pro- 
prietors might  also  be  entitled  to  an  injimction  restraining  the 
defendants  from  holding  themselves  out  as  the  servants  of  the  hotel. 
An  injimction  must  issue,  as  prayed  for,  against  all  the  defendants.^ 

1  Prestolite  Co.  v.  Heiden,  (C.  C.  A.)  219  Fed.  845;  Zittlosen  Mfg.  Co.  t^.  Boss, 
(C.  C.  A.)  219  Fed.  887;  Coca-Cola  Co.  v.  BuUer,  229  Fed.  224;  Hartrier  v, 
Goshen  Ladder  Com^55  Ind.  App.  455:  National  Biscuit  Co.  v.  Pacific  Coast  Bis- 
cuit Co.,  83  N.  J.  Eg.  369;  Sanford  Iron  Works  v.  Enterprise  Machine  Worics, 
130Tenn.  669;  Pacific  Coast  Milk  Co.  v.  Frye,  85  Wash.  133  Accord.  In  March  v. 
Billings,  7  Cush.  322,  under  similar  circumstances,  the  plaintiff  recovered  in  an 
action  at  law. 

See  also  Coffin,  Fraud  as  an  Element  of  Unfair  Competition,  16  Harvard  Law 
Rev.  272;  Wyman,  Competition  and  the  Law,  15  Harvard  Law  Rev.  427;  Cox, 
The  Prevention  of  Unfau*  Competition  in  Business,  5  Harvard  Law  Rev.  139; 
Cushing,  On  Certain  Cases  Analogous  to  Trade  Marks,  4  Harvard  Law  Rev.  321.- 

Misleading  similarUy.  Hanover  Milling  Co.  v,  Metcalf.  240  U.  S.  403;  Mo- 
Donald  Mfg.  Co.  v.  Mueller  Mfg.  Co^  183  Fed.  972;  British  American  Tobacco 
Co.  V.  British  American  Cigar  Stores  Co.,  (C.  C.  A.)  211  Fed.  933;  Hiram  Walker 
&  Sons  V.  Grubman,  224  Fed.  725;  Jenkins  v.  Kelly  A  Jones  Co.,  (C.  C.  A.)  227 
Fed.  21 1 ;  Jacoway  v.  Young,  (C.  C.  A.)  228  Fed.  630:  Van  Zile  v.  Norub  Mfg.  Co., 
228  Fed.  829;  Moline  Plow  Co.  t^.  Omaha  Stores  Co.,  (C.  C.  A.)  235  Fed.  619; 
Boston  Shoe  Shop  v.  McBroom  Shoe  Shop,  196  Ala.  262;  Italian  Swiss  Ccloaj 


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CHAP.  VIII.]  HUGHES  V.  MCDONOUGH  829 

HUGHES  V.  Mcdonough 

Supreme  Court  of  Judicature,  New  Jersey,  November,  1881. 
Reported  in  43  New  Jersey  Law  ReporU,  469. 

On  writ  of  error. 

The  substance  of  the  declaration  was,  that  the  plaintiff  was  a  black- 
smith and  horseshoer  by  trade,  of  good  character,  Ac;  that  he  had 
obtained  the  patronage  of  one  Peter  Van  Riper,  and  that  on  a  certain 
occasion  he  shod  a  certain  mare  of  the  said  Van  Riper  in  a  good  and 
workmanlike  manner;  that  the  defendant,  maliciously  intending  to  in- 
jure the  plaintiff  in  his  said  trade,  &c.,  "  did  wilfully  and  maliciously 
mutilate,  impair  and  destroy  the  work  done  and  performed  by  the 
said  plaintiff  upon  the  mare  of  the  said  Van  Riper,  without  the  knowl- 
edge of  the  said  Van  Riper,  by  loosing  a  shoe  which  was  recently  put 
on  by  the  said  plaintiff,  so  that  if  the  mare  was  driven,  the  shoe  would 
come  off  easily,  and  thus  make  it  appear  that  the  said  plaintiff  was  an 
unskilful  and  careless  horseshoer  and  blacksmith,  and  that  the  said 
mare  was  not  shod  in  a  good  and  workmanlike  manner,  and  thus  de- 
prive,the  said  plaintiff  of  the  patronage  and  custom  of  the  said  Van 
Riper." 

The  second  coimt  charges  the  defendant  with  driving  a  nail  in  the 
foot  of  the  horse  of  Van  Riper,  after  it  had  been  shod  by  the  plaintiff, 
with  the  same  design  as  specified  in  the  first  coimt. 

The  special  damage  laid  was  the  loss  of  Van  Riper  as  a  customer. 

Argued  at  Jime  term,  1881,  before  Beasley,  Chief  Justice,  and  Jus- 
tices Scudder,  Knapp  and  Re^. 

V.  Italian  Vineyard  Co.,  158  Cal.  252;  Dunston  v.  Los  Angeles  Van  &  Storage  Co., 
165  Cal.  89;  Modesto  Creamery  v.  Stanislaus  Creamy  Co.,  168  Cal.  289;  Motor 
Accessories  Co.  v,  Marshalltown  Mfg.  Co.,  167  la.  202*  Bonnie  &  Co.  v,  Bonnie 
Bros.,  160  Ky.  487;  Crutcher  v.  Starics,  161  Ky.  690;  George  G.  Fox  Co.  v.  Best 
Baking  Co.,  209  Mass.  251;  C.  A.  Briggs  &  Co.  v.  National  Wafer  Co.,  215  Mass. 
100;  Grocers'  Supply  Co.  v,  Dupuis.  219  Mass.  576:  Rodseth  v.  Northwestern 
Marble  Works,  129  Minn.  472;  Rubber  &  Celluloid  Co.  v.  Rubber  Bound  Brush 
Co.,  81  N.  J.  Eq.  419,  519:  Westcott  Chuck  Co.  v.  Oneida  Chuck  Co.,  199  N.  Y. 
247;  World's  Dispensary  Ass'n  v.  Pierce,  203  N.  Y.  419:  Material  Men's  Ass'n  v. 
New  York  Material  Men's  Ass'n,  169  App.  Div.  843;  German  American  Button 
Co.  V.  Heymsfeld,  170  App.  Div.  416;  (Jollier  v.  Jones,  66  Misc.  97;  Frohman  v. 
William  MorriSj68  Misc.  461:  Elbs  v.  Rochester  Egg  Carrier  Co.,  134  N.  Y.  Supp. 
979:  Columbia  feigineering  Works  v.  Mallory,  75  Or.  542;  Rosenburg  v,  Fremont 
Undertaking  Co.,  63  Wash.  52;  J.  I.  Case  Plow  Works  v.  J.  I.  Case  Machine  Co., 
162  Wis.  185. 

Use  of  one's  awn  name,  see  L.  E.  Waterman  Co.  v.  Modem  Pen  Co.,  235  U.  S. 
88;  Borden  Ice  Cream  Co.  v.  Borden's  Consolidated  Milk  Co.,  (C.  C.  A.)  201  Fed. 
610;  Deister  Concentrator  Co.  v.  Deister  Machine  Co.,  63  Ind.  App.  412;  C.  H. 
Batchelder  Co.  v,  Batchdder,  220  Mass.  42;  Zagier  v,  Zagier,  167  N.  C.  616. 

Where  d^endant  passes  c#  his  product  as  plaintiff's,  recovery  is  allowed  without 
proof  of  actual  damage.  Blofeld  v.  Payne,  4  B.  &  A.  410;  Singleton  v.  Bolton,  3 
Doug.  293  (sernble):  Sykes  v.  Sykes,  3  B.  &  C.  541:  Morison  v.  Sahnon,  2  M.  A  G. 
385;  Crawshay  v,  Thompson,  4  M.  &  G.  357  (semhU);  Rodgers  v.  Nowill,  5  C.  B. 
109;  Forster  Co.  v.  Cutter  Cfo.,  211  Mass.  219.  Compare  Glendon  Co.  v.  Uhler, 
76  Pa.  St.  467. 


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830  HUGHES  V.  MCDONOUGH  [CHAP.  VUI. 

The  opinion  of  the  court  was  delivered  by 

Bbasley,  C.  J.  The  single  exception  taken  to  this  record  is,  that 
the  wrongful  act  alleged  to  have  been  done  by  the  defendant  does  not 
appear  to  have  been  so  closely  connected  with  the  damages  resulting 
to  the  plaintiff  as  to  constitute  an  actionable  tort.  The  contention 
was,  that  the  wrong  was  done  to  Van  Riper;  that  it  was  his  horse 
whose  shoe  was  loosened,  and  whose  foot  was  pricked,  and  that  the 
immediate  injury  and  damage  were  to  him,  and  that,  consequently, 
the  damages  of  the  plaintiff  were  too  remote  to  be  made  the  basis  of  a 
legal  claim. 

But  this  contention  involves  a  misapplication  of  the  legal  principle^ 
and  cannot  be  sustained.  The  illegal  act  of  the  defendant  had  a  close 
causal  connection  with  the  hurt  done  to  the  plaintiff,  and  such  hurt 
was  the  natural  and  ahnost  direct  product  of  such  cause.  Such  hann* 
ful  result  was  sure  to  follow,  in  the  usual  course  of  things,  from  the 
specified  malfeasance.  The  defendant  is  conclusively  chargeable  with 
the  knowledge  of  this  injurious  effect  of  his  conduct,  for  such  effect 
was  ahnost  certain  to  follow  from  such  conduct,  witiiout  the  occur- 
rence of  any  extraordinary  event,  or  the  help  of  any  extraneous  cause. 
The  act  had  a  twofold  injurious  aspect:  it  was  calculated  to  injure 
both  Van  Riper  and  the  plaintiff;  and  as  each  was  directly  damnified, 
I  can  perceive  no  reason  why  each  could  not  repair  his  losses  by  an 
action. 

The  facts  here  involved  do  not,  with  respect  to  their  l^al  signifi- 
cance, resemble  the  juncture  that  gave  rise  to  the  doctrine  established 
in  the  case  of  Vicars  v.  Wilcocks,  8  East,  1.  In  that  instance  the 
action  was  for  a  slander  that  required  the  existence  of  special  damage 
as  one  of  its  necessary  constituents,  and  it  was  decided  that  such  con- 
stituent was  not  shown  by  proof  of  the  fact  that  as  a  result  of  the 
defamation  the  plaintiff  had  been  discharged  from  his  service  by  his 
employer  before  the  end  of  the  term  for  which  he  had  contracted. 
The  ground  of  this  decision  was  that  this  discharge  of  the  plaintiff 
from  his  employment  was  illegal,  and  was  the  act  of  a  third  party,  for 
which  the  defendant  was  not  responsible,  and  that,  as  the  wrong  of 
the  slander  became  detrimental  only  by  reason  of  an  independent 
wrongful  act  of  another,  the  injury  was  to  be  imputed  to  the  last 
wrong,  and  not  to  that  which  was  farther  distant  one  remove.  In  his 
elucidation  of  the  law  in  this  case.  Lord  EUenborough  says,  alluding 
to  the  discharge  of  the  plaintiff  from  his  employment,  that  it ''  was  a 
mere  wrongful  act  of  the  master,  for  which  the  defendant  was  no  more 
answerable,  than  if,  in  consequence  of  the  words,  other  persons  had 
afterwards  assembled  and  seized  the  plaintiff  and  thrown  him  into  a 
horse-pond  by  way  of  punishment  for  his  supposed  transgression.'' 
The  class  of  cases  to  which  this  authority  belongs,  rests  upon  the  prin- 
ciple that  a  man  is  responsible  only  for  the  natiu*al  consequences  of  his 
own  misdeeds,  and  that  he  is  not  answerable  for  detriments  that 


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CHAP.  Vin.]  HUGHES  V.  SAMUELS  BROTHERS  831 

ensue  from  the  misdeeds  of  others.  But  this  doctrine,  it  is  to  be  re- 
membered, does  not  exclude  responsibility  when  the  damage  results 
to  the  party  injured  through  the  intervention  of  the  legal  and  inno- 
cent acts  of  thiixl  parties;  for,  in  such  instances,  damage  is  regarded 
as  occasioned  by  the  wrongful  cause,  and  not  at  all  by  those  which 
are  not  wrongful.  Where  the  effect  was  reasonably  to  have  been  fore- 
seen, and  where,  in  the  usual  coiu^se  of  events,  it  was  likely  to  follow 
from  the  cause,  the  person  putting  such  cause  in  motion  will  be  re- 
sponsible, even  though  there  may  have  been  many  concurring  events 
or  agencies  between  such  cause  and  its  consequences.  This  principle 
is  stated,  and  is  illustrated  by  a  reference  to  a  multitude  of  decisions 
in  C!ooley  on  Torts,  70,  et  aeq.  .  .  } 

The  principles  thus  propoimded  must  have  a  controlling  effect  in  the 
decision  of  the  question  now  before  this  court,  as  they  decisively  show 
that  the  damage  of  which  the  plaintiff  complained  was  not,  in  a  legal 
sense,  remote  from  the  wrongful  act.  What,  in  point  of  substance, 
was  done  by  the  defendant,  was  this :  he  defamed,  by  the  medium  of  a 
fraudulent  device,  the  plaintiff  in  his  trade,  and  by  means  of  which 
defamation,  the  latter  sustained  special  detriment.  If  this  defamation 
had  been  accomplished  by  word  spoken  or  written,  or  by  signs  or  pic- 
tures, it  is  plain  the  wrong  oould  have  been  remedied,  in  the  usual 
form,  by  an  action  on  the  case  for  the  slander;  and,  plainly,  no  reason 
exists  why  the  law  should  not  afford  a  similar  redress  when  the  same 
injury  has  been  inflicted  by  disreputable  craft.  It  is  admitted  upon 
the  record  that  the  plaintiff  has  sustained  a  loss  by  the  fraudulent 
misconduct  of  the  defendant;  that  such  loss  was  not  only  likely,  in  the 
natural  order  of  events,  to  proceed  from  such  misconduct,  but  that 
it  was  the  design  of  the  defendant  to  produce  such  result  by  his  act. 
Under  such  circumstances  it  would  b©  strange  indeed  if  the  party  thus 
wronged  could  not  obtain  indemnification  by  an  appeal  to  tiie  judicial 
tribunals. 


HUGHES  V.  SAMUELS  BROTHERS 
Supreme  Court,  Iowa,  October  17, 1916. 

Reported  in  179  Ictva  Reports,  1077. 

Gatnor,  J.  Plaintiff  and  defendant  both  reside  in  the  city  of 
Storm  Lake,  and  each  is  and  was  engaged  in  the  retail  furniture 
business,  and,  as  an  incident  thereto,  carried  on  a  business  of  under- 
taking.   Defendants  are  a  copartnership. 

The  plaintiff  claims:  That  on  the  6th  day  of  October,  1914,  the 

^  The  learned  judge  here  discussed  McDonald  v,  SneQing,  14  AH.  290,  and  Rigby 
V.  Hewitt.  6  Ex.  240,  and  cited  2  Pare.  Cont.  466;  Dixon  v.  Fawcus,  30  L.  J.  Q.  B. 
137;  Tarleton  t^.  McGawl^,  Peake,  270;  Bell  v.  Midland  Co.,  10  C.  B.  N.  b.  307 
Keeble  v.  Hickeringill,  11  East,  574,  n. 


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832  HUGHES  V.  SAMUELS  BROTHERS  [CHAP.  Vm. 

defendants  falsely  and  maliciously  composed  and  published  of  and 
concerning  the  plaintiff  the  following: 

"  Bear  in  mind  our  Undertaking  Department.  Satisfaction  guar< 
anteed.  (Signed)    H.  L.  Hu^es." 

That  the  defendants  caused  the  same  to  be  printed  upon  a  card  and 
mailed  to  the  address  of  one  Albert  Cattermole,  a  citizen  and  resident 
of  Storm  Lake.  That  at  the  time  the  card  was  mailed  the  wife  of 
the  said  Cattermole  was  lying  critically  ill  in  a  hospital  in  Storm 
Lake.  That  of  this  fact  the  defendants  had  full  knowledge  at  the 
time  they  composed  and  published  said  statement.  That  they  com- 
posed and  published  it  for  the  malicious  purpose  of  injuring  the 
plaintiff  in  his  reputation  and  business  as  aforesaid.  That  the  same 
as  so  published  tended  to  provoke  plaintiff  to  wrath,  and  expose  him 
to  public  hatred,  contempt,  and  ridicule,  and  to  deprive  him  of  public 
confidence  and  esteem  and  social  intercom^e.  lliat  the  same  was 
further  published  for  the  malicious  and  wicked  purpose  of  causing 
the  said  Albert  Cattermole  and  members  of  his  family,  and  others  to 
whom  the  said  card  or  letter  might  become  known,  to  believe  that 
plaintiff  sent  the  card,  and  for  the  further  purpose  of  inducing  the 
said  Cattermole  to  refrain  from  patronizing  the  business  of  the  plain- 
tiff. That  the  publication  was  further  made  for  the  purpose  of  incit- 
ing indignation  and  hatred  in  the  minds  of  said  Cattermole  and  the 
members  of  his  family  towards  the  plaintiff  and  his  business  as  an 
imdertaker,  and  that  it  did  this.  That  similar  cards  were  sent  to 
other  persons  imder  similar  circumstances,  and  for  the  purposes 
aforesaid. 

To  this  petition  defendants  filed  a  demurrer,  the  substance  of 
which  is,  that  the  plaintiff's  petition  stated  no  cause  of  action;  that 
the  words  published  were  not  libellous  per  se,  and  no  special  damages 
are  alleged  to  have  been  suffered  by  the  plaintiff  on  accoimt  of  its 
publication.  This  demurrer  was  sustained  by  the  court.  Plaintiff 
elected  to  stand  on  his  pleading  and  not  to  plead  further,  and  his 
petition  was  thereupon  dismissed,  and  from  the  action  of  the  court 
in  the  premises  plaintiff  has  appealed  to  this  court.  .  .  . 

It  appears  that  Cattermole's  wife  was  sick  unto  death  at  the  time 
this  card  was  composed  by  defendants  and  sent  to  him.  The  defend- 
ants knew  this  fact  at  the  time  they  composed  and  mailed  the  card. 
We  take  judicial  notice  of  the  fact  that  the  city  in  which  the  parties 
resided  was  not  so  populous  that  the  active  business  men  of  the  city 
were  not  known  to  each  other  and  to  the  general  public.  The  card 
was  so  framed  and  mailed  by  the  defendants  as  to  lead  the  receiver  to 
believe  that  the  plaintiff  had  composed  and  mailed  it,  and  this  was 
their  purpose  in  mailing  it.  What  possible  reason  could  they  have  in 
preparing  and  publishing  this  card  ?  Was  it  to  help  a  rival  ?  Was 
it  to  exploit  the  business  of  a  rival  ?  Was  it  intended  as  a  letter  of 
credit  to  the  public  by  and  through  which  he  would  be  better  installed 


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CHAP.  Vra.]  HUGHES  V.  SAMUELS  BROTHERS  833 

in  its  confidence  and  esteem  ?  Is  this  the  usual  and  ordinary  course 
of  procedure  on  the  part  of  rival  business  finns  ?  With  the  largest 
charity,  we  cannot  think  this  was  the  purpose  of  the  publication. 
What,  then,  was  the  piupose  in  the  minds  of  these  defendants  when 
they  cc»npo6ed  and  sent  these  cards  to  the  sick  and  dying  in  the  com- 
munity ?  Was  it  not  rather,  as  the  petition  says,  to  deprive  him  of 
pubUc  confidence  and  esteem  ?  Was  it  not  rather  to  expose  him  to 
public  contempt  and  ridicule  ?  Was  it  not  rather  to  divert  business 
through  this  means  from  the  plaintiff,  and  to  injure  him  by  such 
diversion  ? 

Cattermole's  wife  was  sick  unto  death  at  the  time  he  received  this 
card;  confined  in  the  hospital.  What  impression  would  this  card 
make  upon  his  mind  ?  Would  it  not  bring  before  him  the  spectacle 
of  a  vulture  waiting  to  prey  upon  the  dead  ?  A  man  without  sym- 
pathy for  the  living  because  he  found  more  i^venue  in  the  dead  ? 
What  is  it  these  defendants  meant  by  this  thing  that  they  have  done  ? 
What  end  had  they  in  view  ?  We  think,  surely,  that  which  the  peti- 
tion charges,  to  wit,  to  injm^  the  plaintiff  in  his  reputation  and  busi- 
ness, to  expose  him  to  public  contempt  or  ridicule,  to  deprive  him 
of  public  confidence  and  esteem.  What,  then,  would  be  the  natural 
and  ordinary  effect  of  such  a  card  upon  the  mind  of  one  to  whom  It 
was  sent,  under  the  conditions  attending  Cattermole?  Surely  it 
would  bring  the  sender  of  such  a  card,  under  the  conditions  then 
existing,  into  contempt  and  hatred,  and  deprive  him  of  public  confi- 
dence and  estean.  Can  the  thought  be  entertained  for  a  moment 
that  after  the  receipt  of  a  card  like  this  under  those  circumstances, 
that  the  receiver  would  patronize  the  sender  in  the  event  the  stricken 
wife  had  died  ?  Was  it  to  secure  this  for  the  plaintiff  that  the  card 
was  sent? 

Published  words  which  directly  tend  to  the  prejudice  or  injury  of  a 
person  in  his  office,  profession,  or  business  are  actionable.  Williams 
V.  Davenport,  42  Minn.  393,  44  N.  W.  311,  118  Am.  St.  Rep.  519. 

Any  pubUcation  calculated  to  expose  one  to  public  hatred,  con- 
tempt, or  ridicule  is  libellous  per  ae.  Dressel  v.  Shipman,  67  Minn. 
23,  58  N.  W.  684. 

The  general  rule  is,  that  when  language  is  published  concerning  a 
person  or  his  affairs,  which,  from  its  nature,  necessarily  must,  or  pre- 
'sumably  will  as  its  natural  and  proximate  consequence,  occasion  him 
pecimiary  loss,  it^  pubUcation  is  libellous  per  ae.  See  Townsend  on 
Slander  and  Libel,  (4th  ed.)  §§  146  and  147;  Fiy  v.  McCord,  95 
Tenn.  680,  33  S.  W.  568. 

Peculiar  damages  are  required  to  be  alleged  only  when  the  publica- 
tion, with  its  attending  facts  and  circmnstances,  is  such  that  damages 
do  not  natimiUy  arise  from  the  publication.  If  the  publication,  with 
its  attending  facts  and  circumstances,  is  such  that  the  court  can 
I^aUy  presume  that  injiuy  foUowed  as  a  natural  and  inevitable  con- 


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834  HUGHES  V.  SAMUELS  BROTHERS  [CHAP.  VHI. 

sequence  of  the  act  complained  of,  th^i  there  is  no  occasion,  in  order 
to  maintain  an  action,  that  the  plaintiff  allege  or  prove  peculiar  dam- 
ages. If  the  nature  and  character  of  the  publication,  with  its  attend- 
ing facts  and  circumstances,  are  such  as  to  injiuriously  affect  or  detract 
from  the  reputation  and  standing  of  another,  and  as  a  natural  and 
proximate  result,  tend  to  bring  him  into  public  contempt,  hatred,  or 
ridicule,  then  it  is  Ubellous  per  se.  If  such  injury  can  be  said  to  be  a 
Aatural  proximate  result  or  consequence  of  its  publication,  then  the 
plaintiff  is  presumed  to  have  been  damaged,  and  there  is  no  need  of 
any  allegation  of  peculiar  damages.  The  extent  of  the  damages  is 
for  the  jury. 

.  It  is  the  venom  of  poisoned  speech  that  constitutes  the  libel.  In 
tracing  the  wrong  that  flows  from  the  publication,  we  come  first  to  the 
mind  of  the  reader,  and  inquire  what  effect  it  would  naturally  have 
upon  the  ordinary  thinking  mind.  We  first  consider  the  facts  pub- 
lished, and  the  circumstances  under  which  they  were  published,  and 
the  persons  to  whom  a  knowledge  of  the  publication  was  brought.  An 
inquiry  arises,  would  such  a  publication,  under  such  circumstances, 
naturally  tend  to  poison  the  mind  against  the  person  concerning 
whom  tjie  matter  was  published  ?  If  the  matter  published  can  be 
said,  in  its  natural  effect  upon  the  mind,  to  produce  hurt  to  the  good 
name,  fame,  and  reputation  of  the  person  about  whom  the  publica- 
tion is  made,  then  we  say  the  matter  is  defamatory,  and  the  person 
necessarily  has  suffered  not  only  wrong,  but  damages,  as  a  proximate 
result  of  the  wrong  —  damage  to  his  good  name,  fame,  and  reputa- 
tion in  the  c(»nmunity.  If  the  words  in  and  of  themselves,  when 
published,  do  not  tend  to  this  effect  natiually  and  of  their  own  force 
and  vitality,  the  mind  naturally  inquires  into  the  circumstances  imder 
which  they  were  published,  the  manner  of  their  publication,  and  the 
persons  to  whom  a  knowledge  of  the  publication  was  brought.  This 
inquiry  is  pursued  to  ascertain  the  effect  which  the  publication,  under 
the  circumstances,  would  naturally  have  upon  the  mind  of  the  person 
to  whom  a  knowledge  of  the  publication  was  brought.  If  the  words 
and  the  circumstances  attending  their  publication  would  not  naturally 
affect  the  mind  prejudicially  against  the  person  concerning  whom  the 
publication  is  made,  it  must  be  alleged  and  shown,  not  only  that  they 
were  used  in  a  defamatory  sense,  but  that  they  were  so  imderstood  by 
the  hearers.  When  words,  innocent  in  themselves,  are  charged  to  have 
been  intended  and  used  in  a  defamatory  sense,  it  must  be  alleged  and 
proven  that  they  were  intended  in  a  defamatory  sense  and  were  so 
imderstood  by  the  persons  to  whom  they  were  addressed.  If  they  do 
not  themselves  convey  a  defamatory  meaning,  or  an  imputation  that 
is  defamatory,  something  must  be  alleged  which  shows,  or  tends  to 
show,  that  the  user  of  the  words  intended  them  in  a  defamatory  sense, 
and  that  the  persons  to  whom  a  knowledge  of  the  publication  came 
were  affected  in  their  mental  attitude  towards  the  person,  to  the  in- 


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CHAP.  Vftt.^  HUGHES  V.  SAMUELS  BROTHERS  835 

jury  of  his  good  name,  fame,  and  reputation.  The  publication  may 
be  so  worded  that  this  could  not  be  gathered  from  the  publication 
itself.  It  may  be  innocent  and  even  commendatory  in  itself,  yet  the 
facts  and  circumstances  attending  the  publication,  the  relationship 
of  the  parties  —  the  def amer  and  the  defamed  —  to  the  pubUc  may 
be  such,  considered  in  the  light  of  the  subject-matter  concerning 
which  the  publication  is  made,  that  it  is  apparent  that  there  was  not 
only  an  intent  to  defame,  but  that  a  defamatory  imputation  was  so 
exposed,  that  the  ordinary  mind  easily  grasped  the  purpose  of  the 
publication  and  its  injurious  consequences  to  the  good  name,  fame, 
and  reputation  of  the  defamed. 

Men  receive  impressions  of  and  concerning  others  from  what  they 
hear  others  say  about  them.  Libel  is  a  tort.  It  consists  in  a  wrong 
done  to  the  ^)od  name,  fame,  and  reputation  of  another.  It  is  in 
the  nature  of  an  assault  upon  tiie  good  name,  fame,  and  reputation  of 
another.  The  law  protects  a  man  in  the  possession  of  his  good  name, 
and  denies  to  others  the  right,  wrongfully  and  wickedly,  to  make  an 
assault  upon  it.  It  is  often  the  only  asset  a  man  has.  Rob  him  of 
this,  and  you  rob  him  of  all  that  he  has  in  life  that  makes  life  worth 
living. 

A  phjrsical  assault  is  clearly  imderstood  and  easily  defined.  One 
may  be  pimished  criminally  or  mulcted  in  damages  civilly  for  physical 
assault.  Libel  is  an  assault  upon  that  invisible  and  intangible  thing 
known  as  reputation.  Though  invisible  and  intangible,  it  exists 
among  men  and  is  prized,  and  the  law  protects  it.  As  has  been  said 
by  this  court,  Ubel  rests  upon  the  thought  that  a  pubUc  wrong  has 
been  committed;  an  act  has  been  done  in  violation  of  the  statute,  to 
the  hiut  of  the  complaining  citizen.  A  citizen's  right  to  remain  secure 
in  his  good  name  and  reputation  among  his  fellows,  and  to  enjoy  their 
confidence  and  esteem,  has  been  violated.  A  libel  is  that  which  tends 
to  take  from  him  one  of  his  most  valuable  rights  —  his  right  to  the 
confidence,  esteem,  and  respect  of  his  fellow  men.  One  who,  by  right 
living  and  right  conduct,  has  built  up  for  himself  an  enviable  name 
among  his  fellows,  and  has  drawn  to  him  their  confidence  and  esteem, 
is  entitled  to  retain  and  enjoy  the  same,  and  one  who  wrongfully  and 
maliciously,  and  without  just  cause,  makes  an  assault  thereon,  and 
impairs  or  injures  the  same,  does  a  grievous  wrong  for  which  he  is 
answerable  in  damages. 

It  is  true  that  the  wrong  must  be  found  in  the  publication,  not 
merely  in  the  wording  of  the  thing  published.  The  injury  must  flow 
from  the  publication.  The  damage  must  be  the  natural  and  proxi- 
mate result  of  the  publication;  a  result  that  usually,  naturally,  and 
ordinarily  follows  as  a  result  of  the  wrong  done. 

Though  the  article  itself  conveys  no  wrong  impression  concerning 
the  complainant,  and  in  and  of  itself  could  do  no  harm,  it  may  become 
most  injurious,  most  hiutful;  it  may  become  a  direct  assault  upon 


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836  HUGHES  V.  SAMUELS  BROTHERS     [PKO*.  Vm. 

the  good  name,  fame,  and  reputation,  because  of  the  manner  and  the 
circumstances  imder  which  it  was  published.  The  publication  must  be 
libellous,  not  necessarily  that  the  article  in  and  of  itself  is  libellous. 

^'  A  libel  is  the  malicious  defamation  of  a  person  made  pubUc  by 
any  writing,"  &c.  It  is  the  malicious  defamation  against  which  the 
inhibition  of  the  statute  is  raised;  malicious  defamation  made  public 
by  writing.  A  writing  made  public  which  is  intended  to  and  does, 
because  of  its  publication,  tend  to  provoke  to  wrath,  to  expose  to  pub- 
lic hatred,  contempt,  or  ridicule,  or  which  deprives  one  of  the  benefits 
of  public  confidence  and  social  intercourse,  is  libellous  per  se. 

Every  written  pubUcation^  maliciously  made,  defamatory  of  an- 
other, which  tends  to  any  of  the  consequ^ices  set  out  in  the  statute,  is 
a  violation  of  the  inhibitions  of  the  statute.  It  is  therefore  a  wrong 
done  to  a  citizen  in  violation  of  the  statute.  It  is  therefore  actionable 
per  se.  The  fact  that  it  is  a  violation  of  the  inhibition  of  the  statute 
makes  it  actionable  per  be. 

In  contemplation  of  law,  reputation  is  a  delicate  plant,  withered 
by  the  breath  of  scandal.  Any  publication  which  imputes  to  another 
eonduct  which  right-thinking  men  condemn,  whether  the  conduct  in« 
volve  a  crime,  moral  turpitude,  or  any  conduct  in  life,  piupose,  or 
manner  of  living  which  the  common  sense  of  right-thinking  men  con- 
demns, is  presumed  in  law  to  have  injuriously  affected  the  reputation 
of  the  person  so  assailed,  and,  by  such  injury,  to  have  caused  him  some 
damage. 

It  follows,  therefore,  that  libel  is  an  assault  upon  character  result- 
ing in  some  injmy  to  reputation.  The  injury  must  be  traceable  to 
the  assault,  and  the  damage  must  be  the  proximate  result  of  the  in* 
jmy.  Every  one  recognizes  the  blighting  effect  of  scandalous  utter- 
ances directed  against  the  character,  conduct,  or  reputation  of  men. 
Every  one  recognizes  that  such  assaults,  publicly  made,  tend  injiui- 
ously  to  affect  the  reputation  and  standing  of  the  one  so  assailed 
among  his  fellows.  It  is  from  the  recognition  of  this  that  the  law 
implies  damages,  without  allegation  or  proof  of  special  damages. 

Defamation  consists  in  maliciously  poisoning  the  minds  of  others 
against  the  party  assaulted  by  printing,  writing,  &c.,  thereby  bring- 
ing on  them  some  of  the  consequences  provided  against  in  the  statute. 
The  statute  is  intended  to,  and  does,  prohibit  the  malicious  poisoning 
of  the  minds  of  others  against  a  citizen,  under  the  protection  of  the 
law,  by  the  use  of  public  printing,  &c.,  and  this  inhibition  attaches 
whether  d6ne  directly  by  the  wording  of  the  thing  complained  of,  or 
indirectly  by  insinuation,  imputation,  or  suggestion.  The  statute  is 
intended  to  protect  one  in  a  right,  and  to  deny  to  others  the  liberty  to 
invade  that  right. 

With  no  explanation  from  the  defendants,  we  may  rightly  assume 
that  they  prepared  and  mailed  this  card  for  the  purpose  hereinbefore 
indicated,  and  that  the  consequences  charged  in  the  petition  were  the 


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CHAP.  YLU.l  HUGHES  V.  SAMUELS  BROTHERS  837 

consequences  that  naturally  flowed  from  the  thing  done.  We  think 
the  pleading  was  sufficient  to  present  the  question  to  the  jury.  As 
supporting  what  we  have  said,  see  Call  v.  Larabee,  60  Iowa,  212,  14 
N.  W.  237;  HoUenbeck  v.  Ristine,  105  Iowa,  488,  75  N.  W.  356,  67 
Am.  St.  Rep.  306;  Halley  v.  Gregg,  74  Iowa,  564,  38  N.  W.  416. 
In  the  latter  case  it  is  said,  in  substance,  that  if  the  act  charged  con- 
stitutes a  libel,  as  defined  by  the  statute,  it  is  actionable  per  se.  See 
Zier  V.  Hofflin,  33  Minn.  66,  21  N.  W.  862,  53  Am.  Rep.  9,  in  which 
it  is  said: 

"  Words  which  may  be  innocent  of  themselves  may  be  rendered 
libellous  by  the  place  and  circumstances  of  their  publication,  for  such 
place  and  circumstances  may  impress  on  them  a  meaning  and  sugges- 
tion which,  standing  alone,  they  do  not  have.  Thus,  though  the 
words  here  do  not  of  themselves  impute  wrong,  they  might  be  pub- 
lished in  such  a  place  or  under  such  circumstances  as  to  make  diem 
capable  of  naturally  conveying  the  impression  that  plaintiff  had  been 
guilty  of  dishonest  practices,  either  in  contracting  the  debt  or  in  with- 
holding payment  of  it.  .  .  .  What  meaning  they  would  naturally 
convey  was  for  the  jury  to  determine  in  view  of  the  circumstances  of 
their  pubUcation."  State  of  Missouri  v.  Armstrong,  106  Mo.  395, 16 
S.  W.  604,  reported  in  13  L.  R.  A.  419,  27  Am.  St.  Rep.  361,  together 
with  citations  and  annotations;  Nichols  v.  Daily,  30  Utah,  74,  83 
Pac.  573, 3  L.  R.  A.  n.  s.  339, 116  Am.  St.  Rep.  296,  8  Ann.  Cas.  841. 

We  find  no  case  directly  in  point  on  the  questions  here  considered. 
We  think,  however,  the  plaintiff  presented  a  fair  question  for  the 
jury,  and  the  court  erred  in  sustaining  the  demurrer,  and  the  cause 
is  therefore  reversed.  Reversed, 

Evans,  C.  J.,  and  Ladd,  J.,  concur.  Salinger,  J.,  special  concurrence. 

Salinger,  J.  There  is  language  in  the  opinion  wUch  indicates  there 
may  be  libel  which  is  not  Ubel  per  se.  I  do  not  wish  to  be  bound  by 
it.  I  think  it  is  settled  by  our  cases  that  whatever  is  libellous  is  libel- 
lous per  se;  that  the  action  for  libel  rests  on  the  fact  that  a  ^^  crime 
has  been  committed,"  and  that,  therefore,  the  law  presumes  damage 
if  a  libel  is  established.^ 

1  Defendant  put  out  an  envelope,  with  the  word  ''  telegram  "  conspicuously 
printed  thereon,  similar  to  that  us^  by  plaintiff,  a  telegraph  company,  to  be  used 
for  advertising  circulars.  Plaintiff  claimed  that  it  tended  to  make  its  patrons 
think  plaintiff  was  impomng  on  them  by  allowing  advertisers  to  use  its  facilities  in 
order  to  gain  their  attention  and  so  injured  its  business.  An  injunction  was  denied. 
Postal  Telegraph  Co.  v.  livermore  &  Kni^it  Co.,  188  Fed.  696. 

In  Riding  v.  Smith,  1  Ex.  D.  91,  plaintiff  sued  for  injiuy  to  his  business  due  to 
defendant's  charging  his  wife  with  adultery,  by  reason  whereof  customers  ceased 
to  deal  with  hkn. 

In  Hamon  v,  Falle,  4  App.  Cas.  247,  an  officer  of  an  insurance  company  notified  a 
shipowner  that  the  company  would  not  insure  the  ship  if  plaintiff  was  employed  as 
master.  Defenduit  set  up  that  he  honestly  believed  plaintiff  unfit.  See  also 
Bowen  v,  Matheson,  14  All.  499. 

In  Morasse  v,  Brochu^  151  Mass.  567,  defendant  in  a  sermon  warned  his  congre- 
gation ag^mst  a  physician  who  had  been  excommunicated  for  remarrying  after 
divorce. 


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838  WESTMINISTER  CO.  V.  HESSE  CO.  [CHAP.  VIII. 

WESTMINISTER  LAUNDRY  CO.  v.  HESSE  ENVELOPE  CO. 

St.  Louis  Coubt  of  Appeals,  Missouri,  May  6, 1913. 

Reported  in  174  Missoiari  Appeal  Reports,  238. 

NoRTONi,  J.  This  is  a  suit  for  damages,  in  which  plaintiff  recov- 
ered a  verdict  for  one  dollar.  On  this  verdict,  judgment  was  given, 
and  defendant  prosecutes  an  appeal  therefrom. 

All  of  the  relevant  facts  appear  from  the  face  of  the  petition,  and 
the  question  of  liability  is  to  be  determined  thereon.  It  appears 
tjhat  the  plaintiff,  the  defendant  and  the  D'Arcy  Advertising  Com- 
pany are  each  corporations  engaged  in  their  respective  callings  in  the 
city  of  St.  Louis.  Plaintiff  owns  and  is  engaged  in  the  business  of 
operating  a  steam  laundry.  Defendant  is  engaged  in  the  business  of 
manufacturing  envelopes.  The  D'Arcy  Advertising  Company  is  en- 
gaged in  the  advertising  business  —  that  is  to  say,  it  places  adver- 
tisement in  St.  Louis  for  those  who  choose  to  patronize  it.  The 
plaintiff  laimdry  company  engaged  the  D'Arcy  Advertising  Company 
to  do  certain  advertising  for  it  by  running  what  is  known  as  a  ^*  blhid  " 
^vertisement.  Such  "  blind  "  advertisement  is  described  in  the  peti- 
tion as  follows: 

:  "The  fundamental  idea  of  same  (the  '  blind  '  advertisement)  being 
the  use  of  some  striking  device  well  adapted  to  attract  public  atten- 
tion, but  unaccompanied,  upon  its  first  appearance,  by  the  name  of 
the  advertiser  using  it,  other  matter  being  added  later  and  the  name 
of  the  advertiser,  also,  being  given  when  the  curiosity  of  the  pubUc 
has  been  suflSciently  piqued  and  the  attention  of  the  public  has  been 
^cited  by  the  '  blind  '  nature  of  the  advertisement." 

The  striking  device  referred  to  in  the  quotiation  from  the  petition 
and  that  contemplated  in  the  instant  case  is  the  word  "Stopur- 
kicken."  The  petition  avers  that  plaintiff  entered  into  a  contract  with 
the  D'Arcy  Advertising  Company  whereby  it  was  to  have  the  exclu- 
sive use  of  the  word  "  Stopurkicken; "  that  the  D'Arcy  Advertising 
Company,  in  pursuance  of  plaintiff's  plan,  had  the  word  "  Stopur- 
kicken "  published  upon  signboards  and  by  way  of  printed  cards. 
After  the  word  "  Stopurkicken  "  had  been  so  used  and  before  plaintiff 
had  time  to  determine  upon  a  proper  supplement  to  such  advertise- 
ment to  disclose  its  own  name  and  identity,  the  defendant,  Hesse 
Envelope  Company,  well  knowing  the  word  "  Stopurkicken  "  was 
being  used  in  the  manner  mentioned  and  desiring  to  take  advantage 
of  the  word  "  Stopurkicken,"  as  above  described,  printed  and  dis- 
tributed throughout  the  city  of  St.  Louis  a  large  number  of  cards 
bearing  the  word  "  Stopurkicken  "  and  followed  by  the  name  of  the 
llesse  Envelope  Company.  Because  of  this  use  of  the  word  by  de- 
fendant, Hesse  Envelope  Company,  plaintiff  avers  it  is  damaged  and 
Iprays  a  recovery  therefor. 


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CHAP.  Vm.]  WESTMINISTER  CO-  V.  HESSE  CO.  839 

It  is  said  the  word  "  Stopurkicken ''  is  an  attractive  misspelling 
and  contraction  of  the  phrase  "  Stop  your  kicking,"  designed  to  excite 
public  curiosity.  It  is  obvious  the  petition  states  no  cause  of  action 
against  defendant  unless  the  word  *'  Stopurkicken  "  is  either  a  trade- 
mark in  which  plaintiff  enjoys  a  proprietary  right,  or  is  possessed  of 
a  secondary  meaning,  which,  by  user,  has  become  a  part  of  the  good 
will  of  plaintiff's  business,  otherwise  the  word  is  pvblici  juris  and 
available  to  every  person  desiring  to  employ  it  identically  as  is  the 
original  phrase  of  which  it  is  a  contraction.  From  the  affirmative 
averments  of  the  petition,  it  is  entirely  clear  plaintiff  enjoyed  no 
trade-mark  in  the  word  imder  consideration.  Indeed,  the  cause  does 
not  proceed  upon  that  theory.  Plaintiff  is  engaged  in  the  laimdry 
business,  which,  of  course,  is  that  of  washing  and  ironing  for  others. 
There  is  no  suggestion  in  the  petition  that  the  word  "  Stopurkicken  " 
was  in  any  manner  ann^ed  to  plaintiff's  wares  or  the  output  of  its 
laundry.  Infringement  of  a  trade-mark  consists  in  the  unauthorized 
use  or  colorable  imitation  of  it  upon  substituted  goods  of  the  same 
class  as  those  for  which  the  mark  has  been  appropriated.  (38  Cyc. 
741.)  The  petition  reveals  that  plaintiff  has  not  yet  employed  the 
word  in  any  manner  so  as  to  identify  it  with  its  business,  for  it  says, 
though  a  contract  had  been  entered  into  between  plaintiff  and  the 
D'Arcy  Advertising  Company  for  the  use  of  the  word  and  it  had 
been  employed  in  blank  space  on  signboards  and  on  cards,  plaintiff 
had  not  yet  revealed  its  identity  in  connection  therewith.  Defendant 
is  engaged  in  the  manufacture  and  sale  of  envelopes  and  used  the 
word  on  an  advertising  card  foUowed  immediately  by  the  name  Hesse 
Envelope  Company.  These  facts  appearing  as  they  do  in  the  petition, 
sufficiently  disclose  that  no  proprietary  right  as  in  trade-mark  existed 
in  the  plaintiff  in  respect  of  the  word  "  Stopurkicken."  Not  only 
must  an  excliisive  proprietary  right  appear  in  the  trade-mark  but  the 
actual  use  of  the  trade-mark  is  essential  as  a  means  of  identifying  the 
origin,  ownership  or  manufactiu^  of  the  goods  of  its  proprietor,  and, 
furthermore,  such  trade-mark  must  be  annexed  to  and  accompany 
the  goods  into  the  market  to  the  end  of  their  identification.  (See 
Grocers  Journal  Co.  v.  Midland  Publishing  Co.,  127  Mo.  App.  356, 
366,  105  S.  W.  310;  38  Cyc.  691,  693.)  Unless  the  word  or  insignia 
relied  upon  is  in  some  manner  attached  or  affixed  to  the  article  in 
trade  or  stamped  or  inscribed  thereon,  it  is  not  a  trade-mark  and 
the  maker  of  such  article  is  without  trade-mark  rights  concerning  it. 
(See  Oakes  v,  St.  Louis  Candy  Co.,  146  Mo.  391,  48  S.  W.  467;  St. 
Louis  Piano  Mfg.  Co.  v.  Merkel,  1  Mo.  App.  305.)  It  is  enth^ly 
clear  that  defendant  in  using  the  word  "  Stopurkicken  "  in  connection 
with  advertising  its  envelopes,  was  not  infringing  upon  plaintiff's 
laundry  business,  for  the  wares  or  commodities  of  the  two  companies 
are  entirely  dissimilar.  But  aside  from  this,  it  appears  affirmatively 
that  the  plaintiff  had  never  used  the  word  in  connection  with  the 


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840  WESTMINISTBB  CO.  V.  HESSE  CO.  [CHAP.  VHI, 

output  of  its  laundry.  It  had,  therefore,  obtained  no  proprietary 
right  thereto  by  continued  use  through  affixing  it  to  the  workmanship 
of  its  laundry  turned  out  into  the  market. 

For  the  same  reasons,  in  part  at  least,  no  secondary  right  to  the  use 
of  the  phrase  appears  in  plaintilff  by  user  such  as  is  essential  to  render 
it  a  portion  of  the  good  will  of  its  laundry  business  as  if  reputation  ob- 
tained thereon.  It  is  certain  that  the  case  may  not  be  sustained  as 
one  for  imfair  competition.  Unfair  competition  consists  in  passing 
off  or  attempting  to  pass  off  upon  the  public  the  goods  or  business  of 
one  person  as  and  for  the  goods  or  business  of  another.  (See  Cyc. 
756.)  Nothing  less  than  conduct  tending  to  pass  off  one  man's  goods 
or  business  as  that  of  another  will  constitute  unfair  competition,  for 
such  is  the  very  essence  of  the  wrong  on  which  the  law  affords  redress 
to  the  injured  party.  (See  Elgin  National  Watch  Co.  v.  Illinois 
Watch  Co.,  179  U.  S.  665,  674,  21  S.  Ct.  270,  45  L.  Ed.  365;  38  Cyc. 
762,  763;  38  Cyc.  758;  see,  also.  Grocers  Journal  Co.  v.  Midbmd 
Pub.  Co.,  127  Mo.  App.  356,  367,  105  S.  W.  310.)  The  relief,  in 
cases  of  imfair  competition,  proceeds  upon  the  theory  that  the  words 
or  phrase  employed  as  by  long  use  in  jconnection  with  the  goods  or 
business  of  a  particular  trade  come  to  be  understood  by  the  public  as 
designating  the  goods  or  business  of  that  particular  trader.  Because 
of  such  user,  the  word  or  phrase  becomes  identified  with  the  business 
of  him  who  employs  it  and  constitutes  a  part  of  its  good  will.  Such 
meaning  of  the  words  or  phrase,  it  is  said,  is  the  genesis  of  the  law 
of  unfair  competition  as  distinguished  from  technical  trade-mark, 
and,  therefore,  relief  against  unfair  competition  is  afforded  upon  the 
ground  that  one  who  has  built  up  a  good  will  and  reputation  for  his 
goods  or  business  under  a  particular  designation  is  entitled  to  the 
benefits  therefrom.  And  secondary  to  this,  the  theory  is  that  the 
deception  of  the  pubUc  injures  the  proprietor  of  the  business  by  divert- 
ing his  customers  and  filching  his  trade.  (Grocers  Journal  Co.  v. 
Midland  Pub.  Co.,  127  Mo.  App.  356,  367,  105  S.  W.  310;  38  Cyc. 
760,  761,  763,  769.) 

It  is  to  be  observed  that,  though  the  right  to  complain  as  for  unfair 
competition  does  not  in  every  instance  require  that  the  complainant 
shall  have  a  proprietary  right  in  the  phrase,  it  does  require  that  he 
shall  have  used  it  in  his  business  as  a  means  of  identifying  his  goods 
as  his  product  and  for  a  sufficient  length  of  time  to  establish  a  repute 
therefor  in  the  market  as  pointing  his  product.  (Grocers  Journal  Co. 
V.  Midland  Pub.  Co.,  127  Mo.  App.  356,  367,  105  S.  W.  310;  Reach 
Co.  V.  Simmons  Hardware  Co.,  155  Mo.  App.  412,  135  S.  W.  503; 
38  Cyc.  769,  763.)  Unless  the  word  or  phrase  involved  has  become  a 
parcel  of  the  good  will  of  his  business  by  continued  user  in  connection 
with  the  product  of  the  proprietor,  it  is  entirely  clear  that  the  use  of 
the  same  word  by  another  does  not  reveal  an  imfair  competition. 
(Shelley  V.  Sperry,  121  Mo.  App.  429,  99  S.  W.  488.) 


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CHAP.  VIII.]  THE  MIDLAND  INSURANCE  CO.  V.  SMITH  841 

The  petition  shows  on  its  face  that  plaintiff  had  never  used  the 
word  "  Stopurkicken  "  in  connection  with  the  output  of  its  laundry, 
but  on  the  contrary  only  employed  it  on  billboards  and  cards  other- 
wise blank,  as  an  attraction  to  arouse  the  curiosity  of  the  public  with 
a  view  of  revealing  the  name  of  the  advertiser  (plaintiff)  thereafter. 
It  is  clear  enough  that,  though  defendant  interposed  and  used  the 
same  word  on  cards  bearing  its  name,  as  it  did,  no  unfair  competition 
appears  when  considered  in  the  sense  of  the  law  on  the  subject  and 
until  plaintiff  had  obtained  a  right  thereto  by  actual  user  in  connec- 
tion with  the  product  of  its  laundry,  the  phrase  "  Stopurkicken  " 
must  be  regarded  as  pyblici  juris  and  available  to  all  who  desired  to 
employ  it  identically  as  was  the  original  phrase  "  Stop  your  kicking." 
It  is  certain  the  D'Arcy  Advertising  Company  had  no  superior  right 
to  either  the  phrase  or  the  contracted  word  and  that  it  could  confer 
none  upon  plaintiff  by  its  contract  to  employ  it  as  a  means  of  arousing 
the  curiosity  of  the  public  for  plaintiff's  benefit.  (Reach  v.  Simmons 
Hardware  Co.,  155  Mo.  App.  412,  135  S.  W.  503.)  Though  persons 
who  have  acquired  a  right  in  respect  of  words  and  phrases  by  user  as 
above  indicated,  may  assign  or  contract  such  right  to  another  in 
conjunction  with  the  good  will  of  the  commodity,  the  identity  of 
which  they  point,  it  is  obvious  that  an  advertising  agent  may  not 
appropriate  any  word  or  phrase  he  chooses  by  merely  seizing  it  out 
of  our  vocabulary,  and  confer  an  exclusive  right  thereto  on  another  by 
a  contract  to  employ  it  in  aid  of  his  business.  We  are  advised  of  no 
principle  of  our  jurisprudence  on  which  the  judgment  in  this  case 
may  be  sustained,  and  the  counsel  for  plaintiff  have  omitted  to  file  a 
brief  suggesting  one.  The  judgment  should  be  reversed.  It  is  so 
ordered.    Rejmolds,  P.  J.,  and  Allen,  J.,  concur. 


THE  MIDLAND  INSURANCE  CO.  v.  SMITH 
In  the  Queen's  Bench  Division,  March  23, 1881. 
Reported  in  Law  BeparUf  6  Queen^s  Bench  Divieum,  561. 

Watkin  Williams,  J.^  This  action  is  one  of  an  extraordinary, 
and  so  far  as  I  am  aware  of  an  unprecedented,  character.  The 
questions  of  law  involved  in  the  case,  which  was  argued  before  me 
yesterday,  arise  upon  demurrer  to  the  statement  of  claim,  and  I  now 
proceed  to  give  judgment. 

The  facts,  which  for  the  purposes  of  the  argument  are  assumed  to 
be  true,  are  as  follows:  The  plaintiffs,  an  insurance  company,  granted 
to  the  defendant,  Charles  Smith,  a  poUcy  of  fire  insurance,  dated  the 
26th  of  June,  1880,  by  which  they  agreed  with  him  that  if  certain 
property  in  a  certain  house  should  be  destroyed  or  damaged  by  fire 

^  Only  the  opinion  of  the  court  is  given. 


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842  THE  MIDLAND  INSURANCE  CO.  V.  SMITH  [CHAP.  VIII, 

they  would  pay  or  make  good  all  such  loss  or  damage  during  the 
currency  of  the  policy.  The  defendant  Mary,  the  wife  of  the  defend- 
ant Charles  Smith,  having  been  left  by  him  in  charge  of  the  house 
and  property  insuied  did,  with  the  malicious  intention  of  destroying 
the  insured  property  and  of  injuring  the  insurance  company  and  of 
creating  a  claim  upon  the  poUcy,  wilfully  set  fire  to  and  destroy  the 
house  and  the  insured  property.  Charles  Smith,  the  assured,  then 
made  a  claim  upon  the  policy  against  the  company.  The  company 
thereupon  brought  this  present  action  against  Smith  and  his  wife,  to 
recover  damages  for  the  loss  which  the  company  alleged  they  had 
sustained  or  might  sustain  through  the  wrongful  and  felonious  act 
of  the  defendant  Mary,  if  the  defendant  Charles  made  good  his  claim 
upon  his  policy. 

I  was  informed  in  the  course  of  the  argument,  although  these  facts 
do  not  appear  formally  before  me,  that  the  defendant  Charies  had, 
before  this  present  action,  brought  an  action  against  the  company 
upon  the  policy  to  recover  the  amount  of  his  loss,  and  that  in  that 
action  the  company  disputed  their  liability  on  the  ground  that  the 
loss,  having  been  caused  by  the  arson  of  the  wife,  was  not  covered  by 
the  poUcy,  and  that  they  had  also  set  up  a  counter-claim  for  damages 
against  Smith  and  his  wife,  who  was  brought  in  as  a  party  to  the 
action  upon  the  same  ground;  that  that  action  went  down  to  trial, 
and  that  the  learned  judge,  before  whom  the  cause  came  on  for  trial, 
adjourned  the  proceedings  in  order  to  enable  the  company  to  test  the 
validity  in  law  of  their  contention  in  a  separate  and  distiQct  manner 
before  proceeding  to  try  the  question  of  arson.  The  present  action 
was  then  commenced.  The  questions,  however,  for  determination  in 
this  action  must  depend  exclusively  upon  the  facts  set  forth  in  the 
statement  of  claim,  and  the  issues  of  law  raised  by  the  demurrer. 

The  company  in  support  of  their  case  started  with  the  general  prin- 
ciple that  "  every  husband  is  liable  for  the  wrongful  acts  of  his  wife," 
and  that  as  the  defendant  Mary  had  wrongfully  iojured  and  destroyed 
the  insured  property,  and  had  caused  the  damage  upon  which  a  claim 
upon  the  poUcy  had  been  based,  they,  as  the  insurers  of  the  property, 
had  a  right  to  sue  her  and  her  husband  for  the  damage  and  injury  so 
done  by  her,  and  not  the  less  so  because  the  husband  happened  to  be 
himself  the  assured  whom  they  had  agreed  to  indemnify.  In  sub- 
stance, the  contention  of  the  c(»npany  came  to  this,  that  they  ought 
not  to  be  called  upon  to  pay  the  assured  the  amount  claimed,  without 
beiag  entitled  concurrently  to  claim  damages  from  him  for  the  loss 
caused  by  the  act  of  his  wife,  for  which  he  is  answerable. 

The  defendants,  by  their  demurrer  to  this  claim,  raised  two  main 
issues  of  law.  In  the  first  place  they  said  that  the  company  were  not 
in  a  position  to  maintain  any  action  for  the  alleged  damage  done  to 
the  goods,  because  they  were  not  the  owners  of  the  goods,  nor  had  they 
sufficient  interest  therein  to  entitle  them  to  maintain  an  action;  that 


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CHAP.  Vin.]  THE  MIDLAND  INSUKANCE  CO.  t;.  SMITH  843 

their  only  right  as  insurers  would  be  to  avail  themselves  of  such  rights 
and  remedies  as  were  vested  in  their  assured,  after  they  had  admitted 
his  claim  and  been  subrogated  to  his  rights  in  relation  to  the  subject 
of  insurance;  and  that,  even  if  they  had  been  subrogated  to  the  rights 
of  the  assured,  they  could  only  sue  in  his  name  and  could  not  maintain 
an  action  in  their  own  name,  and  therefore  that  no  such  action  could 
be  maintained  in  the  present  case,  because  the  assured  had  no  right  of 
action  against  his  own  wife.  •- 

In  the  next  place  the  defendants  contended  that  this  action  being 
based  upon  an  act,  which  on  the  face  of  the  statement  of  claim 
amounted  to  a  felony,  could  not  be  maintained,  because  it  was  not 
shown  that  the  rights  of  the  public  law  hpd  been  vindicated  by  a 
prosecution  of  the  felon.^ 

Upon  the  fibrst  ground  of  demurrer  the  defendants  are,  in  my  judg* 
ment,  clearly  entitled  to  judgment  both  upon  principle  and  upon 
authority.  It  appears  to  me  that  the  insurance  company  have  no  right 
of  action  under  the  circumstances  for  the  damage  done  to  the  goods  by 
the  defendant  Mary.  At  the  time  when  the  damage  was  done  to  the 
goods  the  company  had  no  property  or  interest  in  the  goods  sufficient 
to  sustain  any  action  for  damage  done  to  them;  no  right  or  interest 
in  the  goods  could  accrue  to  the  insurance  company,  until  th^Tiad 
acknowledged  the  claim  xmder  the  poUcy,  and  by  so  doing  entitled 
themselves  to  the  benefit  of  any  claims  and  causes  of  action  vested  in 
the  assured;  but  it  seems  that  even  up  to  this  moment  the  insurance 
company  dispute  the  claim  and  deny  the  right  of  the  assured  to  de- 
mand an  indemnity  imder  the  policy.  But,  further,  it  seems  to  me 
equally  clear  that,  if  they  had  done  everything  to  entitle  themselves 
to  the  benefit  of  such  a  claim,  it  could  only  be  enforced  in  the  name 
of  the  assured  and  for  the  purpose  of  enforcing  his  rights,  and  inas- 
much as  he  could  have  no  such  claim  or  right  against  his  wife,  it 
follows  that  in  no  possible  view  of  the  case  is  the  plaintiffs'  claim  sus- 
tainable. The  case  of  Simpson  v.  Burrell,  3  App.  Cas.  279,  is  iA 
point  upon  this  question.  In  that  case  Burrell  was  the  owner  of  two 
ships,  one  of  which  negUgently  ran  down  and  sank  the  other  with  a 
valuable  cargo.  Burreirs  underwriters  upon  the  sunken  ship  paid 
him  for  a  total  loss,  and  were  so  subrogated  to  all  his  rights.  A  claim 
was  made  by  the  owners  of  the  cargo  in  the  sunken  ship  against 
Burrell,  as  the  owner  of  the  ship  in  fault,  for  the  value  of  their  goods, 
and  Burrell,  as  the  owner  of  the  ship  in  fault,  paid  into  court  the 
whole  value  of  that  ship  at  £8  per  ton,  as  the  limit  of  his  liability 
xmder  the  Merchant  Shipping  Acts,  to  be  ratably  divided  among  aH 
who  had  sustained  loss  and  damage  by  the  ship  being  negligently  run 
down  and  sunk;  thereupon  Burrell's  underwriters  upon  the  sunken 
ship  who  had  paid  for  a  total  loss  claimed  to  come  in  and  share  with 

1  The  opinion  of  the  court  on  this  point  is  omitted.  The  defendant's  contention 
was  not  sustained. 


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844  THE  MIDLAND  INSURANCE  CO.  V.  SMITH  [CHAP.  VIH. 

the  rest  the  money  paid  in  by  the  ship  in  fault;  but  the  House  of 
Lords,  reversing  the  decision  of  the  Lords  of  Session  in  Scotland, 
decided  that  they  had  no  such  right,  and  the  reasoning  in  that  case 
is  directly  applicable  to  the  present.  The  Lord  Chancellor  Cairns 
said,  "  The  view  of  the  Lord  President  therefore  appears  to  be  that, 
after  payment  by  the  underwriters  as  on  a  total  loss,  there  is  effected 
by  aame  independent  operation  of  law  a  transfer  of  whatever,  if  any- 
thing, can  be  c^covered  in  specie  of  the  thing  insured  —  and  by  reason 
of  the  transfer  of  the  thing  insured  an  independent  right  in  the  under- 
writers to  maintain  in  their  own  name,  and  without  reference  to  the 
person  assured,  an  action  for  the  damage  to  the  thing  insured  which 
was  the  cause  of  the  loss.  I  am  not  aware  of  any  authority  for  the 
view  of  the  case  thus  taken.  I  know  of  no  foundation  for  the  right  of 
the  un4erwriter8,  except  the  well-known  principle  of  law  that  where 
one  person  has  agreed  to  indemnify  another  he  will,  on  making  good 
the  indemnity,  be  entitled  to  succeed  to  all  the  ways  and  means  by 
which  the  person  indemnified  might  have  protected  himself  against  or 
reimbursed  himself  for  the  loss." 

Lord  Penzance  said:  ''  The  learned  counsel  for  the  underwriters 
contended  that  they,  by  virtue  of  the  poUcy  which  they  entered  into 
in  respect  of  this  ship,  had  an  interest  of  their  own  in  her  welfare  and 
protection,  inasmuch  as  any  injury  or  loss  sustained  by  her  would 
indirectly  fall  upon  them  as  a  consequence  of  their  contract,  and  that 
this  interest  was  such  as  would  support  an  action  by  them  in  their  own 
names  and  behalf  against  a  wrongdoer.  This  proposition  virtually 
aflSjmtis  a  principle  which  I  think  your  Lordships  will  do  weU  to 
consider  with  some  care,  as  it  will  be  found  to  have  a  much  wider 
appUcation  and  signification  than  any  which  may  be  involved  in  the 
incidents  of  a  contract  of  insurance.  The  principle  involved  seems  to 
me  to  be  this,  —  that  where  damage  is  done  by  a  wrongdoer  to  a 
chattel,  not  only  the  owner  of  the  chattel,  but  all  those  who  by  con- 
tract with  the  owner  have  bound  themselves  to  obligations  which  are 
rendered  more  onerous,  or  have  secured  to  themselves  advantages 
which  are  rendered  less  beneficial  by  the  damage  done  to  the  chattel, 
have  a  right  of  action  against  the  wrongdoer,  although  they  have  no 
immediate  or  reversionary  property  in  the  chattel,  and  no  possessory 
right  by  reason  of  any  contract  attaching  to  the  chattel  itself,  such  as 
by  lien  or  hypothecation.  This,  I  say,  is  the  principle  involved  in  the 
respondent's  contention.  If  it  be  a  sound  one,  it  would  seem  to  follow 
that  if  by  the  negligence  of  a  wrongdoer  goods  are  destroyed,  which 
the  owner  of  them  had  bound  himself  by  contract  to  supply  to  a  third 
person,  this  person,  as  well  as  the  owner,  has  a  right  of  action  for  any 
loss  inflicted  upon  him  by  their  destruction.  But  if  this  be  true  as  to 
injimes  done  to  chattels,  it  would  seem  to  be  equally  so  as  to  injuries 
to  the  person.  An  individual  injured  by  a  negligently  driven  carriage 
has  an  action  against  the  owner  of  it.    Would  a  doctor,  it  may  be 


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CHAP.  VIII.]       THE  MIDLAND   INSURANCE   CO.  V.  SMITH  845 

asked,  who  had  contracted  to  attend  him  and  provide  medicines  for  a 
fixed  sum  by  the  year,  also  have  a  right  of  action  in  respect  of  the 
additional  cost  of  the  attendance  and  medicine  cast  upon  him  by  the 
accident  ?  And  yet  it  cannot  be  denied  that  the  doctor  had  an  interest 
in  his  patient's  safety.  In  like  manner  an  actor  or  singer,  bound  for 
a  term  to  a  manager  of  a  theatre,  is  disabled  by  the  wrongful  act  of  a 
third  person  to  the  serious  loss  of  the  manager;  can  the  manager  re- 
cover damages  for  that  loss  from  the  wrongdoer  ?  Such  instances 
might  be  indefinitely  multipU^,  giving  rise  to  rights  of  action  which 
in  modem  communities,  where  every  complexity  of  mutual  relations 
is  daily  created  by  contract,  might  be  both  numerous  and  nov^l."  See, 
also,  the  cases  of  Randal  v.  Cockran,  1  Ves.  Sen.  97;  North  of  Eng- 
land Insurance  Association  v.  Armstrong,  Law  Rep.  5  Q.  B.  244; 
Stewart  v.  Greenock  Marine  Insurance  Co.,  2  H.  L.  C.  169;  Davidson 
V.  Case,  8  Price,  542;  Mason  v.  Sainsbury,  3  Douglas,  61;  Yates  v. 
Whyte,  4  Bing.  N.  C.  272. 

TTiis  action  cannot  therefore  in  my  judgment  be  maintained,  nor  is 
there  any  substantial  injustice  in  such  a  result,  because,  as  it  seems  to 
me,  the  insurance  company  are  in  this  dilemima;  the  loss  and  damage 
caused  by  the  wrongfiU  act  of  the  wife  either  is  or  is  not  a  loss  which 
the  company  have  agreed  to  indemnify  the  husband  against;  now,  if 
it  is  such  a  loss,  an  attempt  by  the  company  to  enforce  against  the  hus- 
band a  return  indemnity  or  reimbursement  is  at  variance  with  the 
very  substance  of  their  undertaking  to  indemnify  him;  if,  on  the 
other  hand,  the  loss,  by  reason  of  its  having  arisen  from  the  act  of  the 
wife,  is  not  within  the  risks  and  losses  covered  by  the  policy,  then  this 
action  is  as  wholly  misconceived,  imnecessary,  and  unfounded,  as  if 
the  loss  had  been  caused  by  any  other  risk  not  covered  by  the  policy. 
The  truth  is  that  the  real  and  substantial  contention  on  the  part  of 
the  insiumice  company  is,  that  the  loss  in  question  having  been  caused 
by  the  wilful  act  of  the  wife  of  the  assured,  although  acting  without 
the  privity  of  her  husband,  is  not  a  loss  covered  or  insured  against  by 
the  poUcy.  That  question  might  be  raised  in  the  action  brought  by 
the  assured  against  the  company  upon  the  policy,  but  it  does  not 
arise,  and  indeed  could  not  be  raised,  so  as  to  receive  a  binding  and 
judicial  determination,  in  such  an  action  as  the  present.  As  however 
the  question  has  been  fully  and  ably  argued  before  me,  and  as  the 
parties  have  expressed  a  desire  to  elicit  an  opinion  upon  the  point,  I 
have  no  hesitation  in  saying  that  it  appears  to  me  to  be  upon  principle 
perfectly  clear  and  free  from  doubt  that  such  a  loss  would  be  covered 
by  an  ordinary  pohcy  against  loss  caused  by  fire;  under  such  a  policy 
the  company  would  be  liable  for  every  loss  caused  by  fire,  unless  the 
fire  itself  were  caused  and  procured  by  the  wilful  act  of  the  assured 
himself  or  some*  one  acting  with  his  privity  and  consent.  In  order  to 
escape  from  responsibility  for  such  a  loss  as  the  present  the  company 
ought  to  introduce  into  their  policy  an  express  exception. 

Judgment  for  the  defendants. 


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848  HUTCHINS  V.  HUTCHINS  [CHAP.  VIH. 

ticulars.  By  these  fraudulent  means  the  defendant  prevailed  upon 
the  father  to  revoke  and  cancel  the  will,  and  to  make  and  execute  a 
new  one,  by  which  the  plaintiff  was  excluded  from  all  participation  in 
his  father's  estate. 

This  is  the  substance  of  the  case,  in  its  strongest  aspect,  as  presented 
by  the  pleadings;  and  the  question  arises  whether  any  actual  damage, 
in  contemplation  of  law,  is  shown  to  have  been  sustained  by  the 
plaintiff  ? 

Fraud  without  damage,  or  damage  without  fraud,  gives  no  cause  of 
action;  but  where  both  concur,  an  action  lies.  Damage,  in  the  sense 
of  the  law,  may  arise  out  of  injuries  to  the  person  or  to  the  property 
of  the  party;  as  any  wrongful  invasion  of  either  is  a  violation  of  his 
legal  rights,  which  it  is  the  object  of  the  law  to  protect.  Thus,  for 
injuries  to  his  health,  Uberty  and  reputation,  or  to  his  rights  of  prop- 
erty, personal  or  real,  the  law  has  furnished  the  appropriate  remedies. 
The  former  are  violations  of  the  absolute  rights  of  the  person,  from 
which  damage  results  as  a  legal  consequence.  As  to  the  latter,  the 
party  aggrieved  must  not  only  establish  that  the  allied  tort  or  tres- 
pass has  been  committed,  but  must  aver  and  prove  his  right  or  in- 
terest in  the  property  or  thing  affected,  before  he  can  be  deemed  to 
have  sustained  damages  for  which  an  action  will  lie. 

Now,  testing  the  plaintiff's  declaration  by  these  principles,  has  he 
made  out  a  case  from  which  it  can  be  said  that  damage  has  resulted  to 
him  7  I  think  not.  In  respect  to  the  farm  devised  to  him  by  the  first 
will,  he  fails  to  show  that  he  had  any  such  interest  in  it  as  the  law  will 
recognize.  The  only  foundation  of  his  claim  rests  upon  the  mere 
unexecuted  intention  of  his  father  to  make  a  gift  of  the  property;  and 
this  cannot  be  said  to  have  conferred  a  right  of  any  kind.  To  hold 
otherwise,  and  sanction  the  doctrine  contended  for  by  the  plaintiff, 
would  be  next  to  sa3ring  that  every  voluntary  comiiesy  was  matter  of 
legal  obligation;  that  private  thoughts  and  intentions,  concerning 
benevolent  or  charitable  distributions  of  property,  might  be  seized 
upon  as  the  foundation  of  a  right  which  the  law  would  deal  with  and 
protect. 

I  have  not  overlooked  the  cases  referred  to  on  the  argimient,  of 
actions  of  slander,  where  special  damage  must  be  shown  in  order  to 
make  the  words  actionable;  and  where  the  deprivation  of  any  present 
substantial  advantage,  even  though  gratuitous,  such  as  the  loss  of  cus- 
tomers, of  a  permanent  home  at  a  friend's,  or  advancement  in  life,  and 
such  like,  if  the  iomiediate  and  direct  consequence  of  the  words,  will 
sustain  tiie  action.  1  Starkie  on  Slander,  158  to  186,  Ed.  of  1843. 
If  this  description  of  special  damage  is  to  be  regarded  as  the  gist  and 
foimdation  of  the  action,  I  rather  think  the  principle  should  be  re- 
garded as  peculiar  to  that  species  of  injury.  I  am  not  aware  of  any 
class  of  remedies  given  for  a  violation  of  the  rights  of  property,  where 
so  remote  and  contingent  a  damage  has  been  allowed  as  a  substantial 
ground  of  action. 


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CHAP.  VIII.]  LEWIS  V.  CORBIN  849 

.  But  the  law  applicable  to  the  cases  referred  to  proceeds  upon  the 
ground  that  the  plaintiff,  by  the  wrongful  act  complained  of,  has  been 
deprived  of  the  present,  actual  enjoyment  of  some  pecxmiary  advan- 
tage. No  such  damage  can  be  pretended  here.  At  best,  the  contem- 
plated gift  was  not  to  be  realized  till  after  the  death  of  the  testator, 
which  might  not  happen  until  after  the  death  of  the  plaintiff;  or  the 
testator  might  change  his  mind,  or  lose  his  property. 

In  short,  the  plaintiff  had  no  interest  in  the  property  of  which  he 
says  he  has  been  deprived  by  the  fraudulent  interference  of  the  defend- 
ant, beyond  a  mere  naked  possibility;  an  interest  which  might  indeed 
influence  his  hopes  and  expectations,  but  which  is  altogether  too 
shadowy  and  evanescent  to  be  dealt  with  by  courts  of  law. 

I  am  of  opinion  that  the  defendant  is  entitled  to  judgment. 

Ordered  accordingly} 

LEWIS  V.  CORBIN 
SxTPRBMB  Judicial  Coubt,  Massachusetts,  Mat  16, 1907. 
Reported  in  195  MaseaehusetU  Reports,  520. 

Action  of  tort.    Demurrer  to  declaration. 

Knowlton,  C.  J.*  This  is  an  action  of  tort  in  which  the  defendant 
is  charged  with  having  deprived  the  plaint^  of  a  legacy,  through  his 
fraud  in  inducing  a  testatrix  to  execute  the  codicil  by  which  the  legacy 
purported  to  be  given  with  only  one  witness,  whereby  the  codicil  was 
Tendered  invalid.  The  legatee  named  in  the  codicil  was  the  plaintiff's 
father,  who  had  deceased  before  the  codicil  was  made,  although  neither 
the  testatrix  nor  the  defendant  then  knew  of  his  death. 

One  question  is  whether  this  legacy,  which  would  be  void  at  com- 
mon law  (see  Maybank  v.  Brooks,  1  Brown  Ch.  76;  Dildine  v,  Dil- 
dine,  32  N.  J.  Eq.  78,  80;  Moss  v.  Helsley,  60  Tex.  426,  436),  is 
within  the  R.  L.  chap.  135,  sec.  21,  which  provides  that  when  a  devise 
or  legacy  is  made  to  a  child  or  other  relation  of  the  testator  who  dies 
before  the  testator,  leaving  issue  surviving  the  testator,  such  issue 
shall  take  the  gift  iinless  the  will  requires  a  different  disposition  of  it. 

We  are  of  opinion  that  the  purpose  of  the  Legislature  is  best  accom- 
plished by  holding  the  statute  applicable  to  devises  and  legacies  given 
to  relations  who  died  before  the  making  of  the  will,  as  well  as  legacies 
and  devises  to  those  who  died  after  the  making  of  the  will. 

The  defendant  contends  that  the  plaintiff's  declaration  fails  to  aver 
damage  suffered  by  him  on  account  of  the  defendant's  misconduct. 

1  In  Randall  v,  Hazelton,  12  AH.  412,  plaintiff,  a  mort^gor,  had  a  gratuitous 
promise  from  the  mortgagee  not  to  forecloee  without  notice.  In  order  to  obtain 
the  property,  defendimt  falsely  told  the  mortgagee  that  plaintiff  wished  the  mort- 
gage assigned  to  defendant  and  obtained  an  assignment  and  foreclosed  without 
pkuntiff's  knowledge. 

>  Statement,  and  part  of  opinion,  omitted. 


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850  LEWIS  V.  coRBiN  [CHAP.  vm. 

It  is  true,  as  he  argues,  that  in  order  to  create  a  liability  of  this  kind, 
there  must  be,  not  only  a  wrong  inflicted  by  the  defendant,  but  dam- 
age to  the  plaintiff  resulting  directly  thereftt)m.  Lamb  v.  Stone,  11 
Pick.  527,  534,  535;  Wellington  v.  Small,  3  Cush.  145,  149;  Bradley 
V.  Fuller,  118  Mass.  239,  241.  See  also  Jenks  v.  Hoag,  179  Mass. 
583,  585;  Freeman  v.  Vernier,  120  Mass.  424,  426,  427;  Adler  v, 
Fenton,  24  How.  408,  410. 

In  this  case  the  averments  are,  in  substance,  that  the  defendant  was 
the  executor  and  residuary  legatee  named  in  a  will  of  one  Jane  V. 
Corbin,  and  that  she  formed  a  purpose  to  give  a  legacy  of  $5000  to 
Henry  G.  Lewis,  the  plaintiff's  father,  who  was  her  second  cousin,  that 
she  was  over  eighty  years  of  age,  and,  for  advice  and  assistance  in 
matters  of  business,  was  dependent  upon  the  defendant,  who  occupied 
a  confidential  relation  towards  her,  that,  wrongfully  and  fraudulently 
intending  and  contriving  to  defeat  her  will  and  intention,  and  to  de- 
prive and  defraud  Henry  G.  Lewis  and  his  heirs  of  the  sum  of  $5000, 
he  advised  and  procured  the  testatrix  to  execute  a  codicil  to  her  will 
in  the  presence  of  only  one  witness,  namely,  the  defendant,  whereas 
the  law  of  Rhode. Island  required  the  execution  of  the  codicil  in  the 
presence  of  more  than  one  witness,  as  the  defendant  well  knew.  It  is 
then  averred  that  the  estate  of  the  testatrix  was  large,  and  that,  if  the 
codicil  had  not  failed  for  want  of  due  attestation  owing  to  the  fraud 
practised  by  the  defendant,  the  plaintiff  would  have  received  about 
$1650. 

Whether  a  person  named  as  legatee  has  a  remedy,  in  a  case  like  this, 
is  a  question  which,  so  far  as  we  know,  has  never  been  decided  in  this 
Commonwealth.  See  Melanefy  v,  Morrison,  152  Mass.  473, 476.  The 
testatrix,  desiring  to  give  the  l^acy  and  intending  to  express  her  de- 
sire in  a  way  that  would  be  effectual  after  her  death,  imless  in  the 
meantime  she  should  change  her  purpose,  was  fraudulently  induced  to 
express  it  ineffectually,  when  she  supposed  that  she  had  made  a  legal 
and  vaUd  codicil.  Plainly  such  fraudulent  conduct  was  a  wrong  upon 
the  plaintiff  as  well  as  upon  the  testatrix.  The  question  in  the  case  is 
whether  the  plaintiff  has  averred  suflScient  facts  to  show  that  damage 
resulted  to  him  directly  as  a  consequence  of  the  wrong.  The  defend- 
ant relies  strongly  upon  Hutchins  v.  Hutchins,  7  Hill,  104,  decided  by 
the  Suprmie  Court  of  New  York.  The  declaration  in  that  case 
charged  that  the.  plamtiff 's  father  bad  made  a  will  devising  a  farm  to 
the  plaintiff,  and  that  the  defendants,  who  were  interested  in  the  ^ 
testator's  estate,  he  being  a  feeble  man,  advanced  in  years,  and  in- 
capable of  transacting  business,  fraudulently  induced  him  to  make 
another  will  in  which  the  devise  to  the  plaintiff  was  omitted.  The 
case  was  heard  on  a  demurrer.  The  court  said  "  Fraud  without  dam- 
age, or  damage  without  fraud  gives  no  cause  of  action;  but  where 
both  concur,  an  action  lies.  .  .  .  The  only  foundation  of  his  claim 
rests  upon  the  mere  unexecuted  intention  of  his  father  to  make  a  gift 


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CHAP.  VIII.]  LEWIS  V.  CORBIN  851 

of  the  property,  and  this  cannot  be  said  to  have  conferred  a  right  of 
any  kind.  To  hold  otherwise  and  sanction  the  doctrine  contended  for 
by  the  plaintiff  would  be  next  to  saying  that  every  voluntary  courtesy 
was  matter  of  legal  obUgation,  and  that  private  thoughts  and  inten- 
tions concerning  benevolent  or  charitable  distributions  of  property 
might  be  seized  upon  as  the  foundation  of  a  right  which  the  law  would 
deal  with  and  protect.  .  .  .  But  the  law  applicable  to  the  cases  re- 
ferred to  proceeds  upon  the  ground  that  the  plaintiff,  by  the  wrongful 
act  complained  of,  has  been  deprived  of  the  present  actual  enjoyment 
of  some  pecuniary  advantage.  No  such  damage  can  be  pretended  here. 
At  best  the  contemplated  gift  was  not  to  be  received  until  after  the 
death  of  the  plaintiff,  or  the  testator  might  change  his  mind,  or  lose 
his  property."  This  case  has  been  cited  with  approval  in  this  Com- 
monwealth and  elsewhere.  Randall  v.  Hazelton,  12  Allen,  412,  416; 
Emmons  v,  Alvord,  177  Mass.  466,  471;  Adler  v.  Fenton,  24  How. 
408,  410.  We  have  been  referred  to  no  other  decision  upon  similar 
facts,  and  we  have  found  no  other.  It  seems  pretty  plain  that,  if  a 
suit  were  brought  in  the  lifetime  of  the  testator,  immediately  after 
the  practice  of  the  fraud,  no  substantial  damage  could  be  recovered. 
Very  likely  the  court  was  right  in  deciding  that  no  action  could  be 
maintained.  The  plaintiff's  relation  to  the  subject  to  which  the  fraud 
was  directed  was  not  close  enough  to  cause  hun  pecuniary  loss,  apart 
from  the  happening  of  subsequent  events.  Even  if  there  were  no 
fraud  the  legacy  might  never  take  effect.  The  testator  might  lose  his 
property,  or  destroy  his  will,  or  make  a  different  one.  But  the  fraud 
put  the  plaintiff  in  a  less  advantageous  position  than  he  otherwise 
would  have  occupied  in  reference  to  the  probabiUty  of  receiving  prop- 
erty under  the  will,  and  this  change  of  position,  accomplished  by  a 
fraud,  naturally  and  probably  might  deprive  him  of  that  which,  with 
fair  dealing,  he  would  receive.  It  seems  to  us  that,  while  the  fraud 
does  not  cause  substantial  damage  apart  from  the  happening  of  sub- 
sequent events  which  reasonably  may  be  expected  to  happen,  if  these 
do  happen,  the  defendant  is  chargeable  with  the  natural  consequences 
of  his  act.  Suppose,  in  the  present  case,  that  the  testatrix  did  not 
change  her  purpose  to  give  the  legacy  of  $5000  to  Henry  G.  Lewis, 
and  that  for  the  rest  of  her  life  she  desired  and  intended  that  this 
legacy  should  take  effect,  and  thought  that  it  would  take  effect.  The 
fraud  then  would  be  operative  up  to  the  time  of  her  death,  and  would 
accomplish  the  result  intended  by  its  author,  by  depriving  the  legatee 
of  that  which  otherwise  he  would  have  received.  It  is  averred  that 
the  testatrix  left  an  estate  suflBcient  to  pay  all  or  nearly  all  of  this 
legacy,  with  the  others.  If  the  facts  supposed  above  are  proved,  does 
it  not  follow  that  the  fraud  directly  and  proximately  caused  the  plain- 
tiff's loss  of  his  legacy  ?  The  defendant  cannot  complain  that  these 
supposed  facts  followed  as  conditions  concurring  with  his  fraud  to 
cause  the  damage.    His  fraud  was  planned  in  reference  to  the  prob- 


f 


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852  DULIN  V.  BAILEY  [CHAP.  VIII. 

ability  that  these  events  would  follow.  In  Hutchins  v.  Hutchins, 
suprGj  there  was  no  averment  to  show  that  the  fraud  was  operative  up 
to  the  time  when  the  title  to  the  property  was  changed  by  the  death  of 
the  testator.  The  court  treated  the  case  as  if  the  testator  might  have 
changed  his  purpose  as  to  the  disposition  of  his  estate,  for  reasons  of 
his  own  independently  of  the  fraud. 

While  the  declaration  in  the  present  case  declares  a  result  which 
might  justify  an  inference  that  the  loss  was  caused  by  the  fraud  alone, 
the  averment  seems  hardly  more  than  a  statement  of  a  conclusion  of 
law  from  the  facts  given  previously.  Upon  demurrer  we  think  the 
pleading  is  defective  in  not  averring  facts  which  exclude  the  possi- 
bility that  the  testatrix  changed  her  purpose  in  r^ard  to  this  legacy, 
and  which  show  that  the  fraud  continued  operative  to  the  time  of  her 
death,  and  thus  caused  the  loss  to  the  plaintiff. 

We  think  the  charge  of  fraud  is  a  sufficient  statement  of  an  action- 
able wrong.  It  charges  much  more  than  an  expression  of  opinion  by 
which  the  testatrix  was  misled.  The  defendant  is  accused  of  having 
dealt  with  a  matter  of  fact,  and  with  having  fraudulently  procured 
the  making  of  the  codicil  without  sufficient  attestation  of  it. 

We  infer  from  the  record  that  the  testatrix  was  domiciled  in  Massa- 
chusetts, and  that  the  construction  of  the  will  is  governed  by  the  law 
of  this  State.  Welch  v.  Adams,  152  Mass.  74,  79;  Sewall  v.  Wilmer, 
132  Mass.  131, 136.  Demurrer  eusiained} 


DULIN  V.  BAILEY 

SupRBMB  Court,  North  Carolina,  November  29, 1916. 

Reported  in  172  North  Carolina  Reports,  608. 

Clark,  C.  J.  The  complaint  alleges  that  after  the  death  of  W.  A. 
Bailey  the  defendants  conspired  to  deprive  the  plaintiff  and  others  of 
the  benefits  of  his  last  will  by  removing  from  the  paper  writing  to 
which  the  sheet  of  paper  containing  the  alleged  signature  of  the  de- 
ceased was  attached,  that  part  providing  for  the  legacy  to  the  plaintiff 
and  others  and  substituting  other  provisions  therefor.  The  plaintiff 
contends  that  thereby  a  previous  will  has  been  admitted  to  probate. 
In  the  course  of  the  proceeding  the  plaintiff  asked  for  the  appoint- 
ment of  a  commissioner  to  take  the  examination  of  the  defendants 
in  the  nature  of  a  bill  of  discovery.  The  defendants  demurred  that 
the  complaint  did  not  state  a  cause  of  action.  The  court  sustained 
the  demurrer,  and  held  that  unless  the  will  that  had  been  proven  in 
common  form  was  attacked  and  set  aside  by  caveat,  the  plaintiff  could 

*  In  Rice  v,  Manley,  66  N.  Y.  82,  plaintiff  had  a  contract  with  a  third  person  for 
a  cheese.  By  means  of  a  forged  telegram  defendant  procured  the  third  person  to 
sell  to  him  instead.  The  contract  was  within  the  Statute  of  Frauds,  but  it  was 
found  that  the  third  person  would  have  performed  but  for  defendant's  act. 


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CHAP.  VIII]  DULIN  V.  BAILET  853 

not  maintain  the  cause  of  action  set  out  in  the  complaint.  This  put 
an  end  to  the  plaintiff's  fiuiher  progress  in  the  cause,  and  she  took  a 
nonsuit  and  appealed. 

The  plaintiff  is  not  seeking  to  attack  the  will  on  record,  nor  to 
probate  what  she  alleges  was  a  subsequent  will.  She  is  not  seeking  to 
recover  anything  out  of  the  estate,  but  is  bringing  an  action  of  tort 
against  the  parties  who,  as  she  alleges,  conspired  and  injured  her  by 
removing  the  clause  of,  and  the  signature  to,  what  was  a  subsequent 
will  by  which  she  would  have  received  a  legacy.  It  is  an  action  of 
spoliation  by  which  she  alleges  the  defendants  have  prevented  her 
receiving  the  sum  of  money  which  was  due  her  if  they  had  not  fraudu- 
lently altered  and  defaced  the  subsequent  will.  She  alleges  that  she 
does  not  attempt  to  set  up  the  second  will  because  the  evidence  ac- 
cessible to  her  would  not  prove  its  entire  contents.  She  prefers,  there- 
fore, to  bring  this  action  against  the  defendants  for  their  wrongdoing 
in  fraudulently  destroying  the  part  of  the  will  which  was  beneficial  to 
herself. 

Though  this  action  seems  to  be  of  the  first  impression  in  this  state, 
and  is  doubtless  a  very  unusual  one,  there  is  foundation  and  reason 
for  the  action  upon  well-settled  principles  of  law,  and  we  are  not  en- 
tirely without  precedent.  In  Tucker  v.  Phipps,  3  Atkins,  359;  cited 
in  Bamesly  v.  Powel,  1  Ves.  Sr.  284,  it  was  held  that,  the  spoliation 
being  clearly  proven,  the  plaintiff  could  maintain  his  action  without 
setting  up  the  will  by  a  probate.    It  was  held  that: 

"  Where  a  will  is  destroyed  or  concealed,  while  the  general  rule 
is  to  probate  the  alleged  will  by  proof  in  the  Ecclesiastical  Court 
[which  was  there  the  court  for  probate  wills],  yet  the  legatee  might 
bring  his  action  for  the  damage  sustained  by  spoliation  and  sup- 
pression." 

In  that  case  the  spoliation  was  alleged  to  have  been  a  destruction 
or  concealment  of  the  will  by  the  executor.  Such  action  against  a 
stranger  is  even  more  appropriate  than  an  independent  action  against 
the  executor.  Tucker  v.  Phipps  is  to  be  found  in  26  English  Reports 
(Reprinted)  1008.  Another  case  very  much  in  point  is  Bamesley  v. 
Powell,  1  Ves.  119,  27  English  Reports  (Reprinted)  1034,  in  which 
Tucker  v.  Phipps  is  cited  as  authority  and  the  court  also  refers  with 
approval  to 

"  A  late  case  where  the  defendant  burned  a  will,  in  which  was  a 
legacy  to  the  plaintiff,  so  that  it  could  not  be  proven  in  the  Eccle- 
siastical Court  [which  cannot  prove  a  will  on  loose  parts  of  the  con- 
tents of  it],  yet  on  the  evidence  of  there  being  such  a  will,  and  the 
defendants  destroying  it,  the  court  decreed  the  legacy  to  the  plaintiff, 
as  the  defendant  by  his  own  iniquity  had  prevented  the  plaintiff  from 
coming  at  it." 

There  may  be  other  precedents,  but  the  instances  must  have  been 
rare.    Even  if  thefe  had  been  no  precedent,  it  would  seem  that,  upon 


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the  principle  of  justice  that  there  is  "  no  wrong  without  a  remedy," 
the  plaintiff  is  entitled  to  maintain  this  action,  if,  as  she  alleges,  the 
defendants  conspired  and  destroyed  the  subsequent  will  in  which  the 
legacy  was  left  her.  If  she  cannot  prove  the  destroyed  will  because 
imable  to  prove  the  entire  contents  thereof  {In  re  Hedgepeth,  160 
N.  C.  246,  63  S.  E.  1026),  surely  she  is  entitled  to  recover  of  the 
defendants  for  the  wrong  they  have  done  her  by  the  conspiracy  and 
destruction  of  the  will,  and  the  measure  of  her  damages  will  be  the 
legacy  of  which  she  has  been  deprived.  It  may  be  very  dijBGicult  for 
her  to  prove  her  allegations  by  legal  evidence  and  satisfactory  to  a 
jury,  but  with  that  we  have  nothing  to  do.  The  only  question  pre- 
sented to  us  is  the  ruling  of  the  coiut  below  that  the  complaint  does 
not  state  a  cause  of  action,  and  in  this  we  think  the  court  below  was 
mistaken. 

As  the  action  is  not  to  set  up  the  will,  nor  against  the  estate,  but 
against  the  defendants  individually  for  their  tort,  the  action  could 
be  brought  in  the  coimty  where  the  plaintiff  resides. 

Reversed. 


BATCLIFFE  v.  EVANS 

In  the  Court  of  Appeal,  Mat  26, 1892. 

Reported  in  [1892]  2  Queen's  Bench,  524. 

Motion  to  enter  judgment  for  the  drfendant,  or  for  a  new  trial,  by  way  of 
appeal  from  the  judgment  entered  by  Mr.  Commissioner  Bompas,  Q.  C,  in  an 
action  tried  with  a  jury  at  the  Chester  Sununer  Assizes,  1891. 

The  statement  of  claim  in  the  action  alleged  that  the  plaintiff  had  for  many 
years  carried  on  the  business,  at  Hawarden  in  the  county  of  Mint,  of  an  engi* 
neer  and  boiler-maker  under  the  name  of  "  Ratcliffe  &  Sons,"  having  become 
entitled  to  the  good-will  of  the  business  upon  the  death  of  his  father,  who, 
with  others,  had  formerly  carried  on  the  business  as  "  Ratcliffe  &  Sons; " 
that  the  defendant  was  the  registered  proprietor,  publisher,  and  printer  of  a 
weekly  newspaper  called  the  "  County  Herald,"  circulated  in  Flintshire  and 
some  of  the  adjoining  counties,  and  that  the  plaintiff  had  suffered  damage 
by  the  defendant  falsely  and  maliciously  publishing  and  printing  of  the  plain- 
tiff in  relation  to  his  business,  in  the  "  County  Herald,"  certain  words  set 
forth  which  imported  that  the  plaintiff  had  ceased  to  carry  on  his  business  of 
engineer  and  boiler-maker,  and  that  the  firm  of  Ratcliffe  &  Sons  did  not  then 
exist. 

At  the  trial  the  learned  commissioner  allowed  the  statement  of  claim  to 
be  amended  by  adding  that  "  by  reason  of  the  premises  the  plaintiff  was  in- 
jured in  his  credit  and  reputation,  and  in  his  said  business  of  an  engineer  and 
boiler-maker,  and  he  thereby  lost  profits  which  he  otherwise  would  have  made 
in  his  said  business."  The  plaintiff  proved  the  publication  of  the  statements 
complained  of,  and  that  they  were  untrue.  He  also  proved  a  general  loss  of 
business  since  the  publication;  but  he  gave  no  specific  evidence  of  the  loss 
of  any  particular  customers  or  orders  by  reason  of  such  publication.    In 


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answer  to  questions  left  to  them  by  the  commissioner,  the  jury  found  that  the 
words  did  not  reflect  upon  the  plaintiff's  character,  and  were  not  libellous; 
that  the  statement  that  the  firm  of  Ratcliffe  &  Sons  was  extinct  was  not  pub- 
lished bona  fide;  and  that  the  plaintiff's  business  suffered  injury  to  the  extent 
of  £120  from  the  pubhcation  of  that  statement.  The  commissioner,  upon 
those  findings,  gave  judgment  for  the  plaintiff,  for  £120,  with  costs.  The 
defendant  appealed.^ 

The  following  judgment  of  the  court  (Lobd  Esher,  M.  R.,  Bowbn,  and 
Fry,  L.  JJ.),  wajs  read  by 

BowEN,  L.  J.  This  was  a  case  in  which  an  action  for  a  false  and  malicious 
publication  about  the  trade  and  manufactures  of  the  plaintiff  was  tried  at 
the  fchester  assizes,  with  the  result  of  a  verdict  for  the  plaintiff  for  £120. 
Judgment  having  been  entered  for  the  plaintiff  for  that  siun  and  costs,  the  de- 
fendant appealed  to  this  court  for  a  new  trial,  or  to  enter  a  verdict  for  the 
defendant,  on  the  ground,  amongst  others,  that  no  special  damage,  such  as 
was  necessary  to  support  the  action,  was  proved  at  the  trial  The  injurious 
statement  complamed  of  was  a  publication  in  the  "  County  Herald,"  a  Welsh 
newspaper.  It  was  treated  in  the  pleadings  as  a  defamatory  statement  or 
libel;  but  this  suggestion  was  negatived,  and  the  verdict  of  the  jury  proceeded 
upon  the  view  that  the  writing  was  a  false  statement  purposely  made  about 
the  manufactures  of  the  plaintiff,  which  was  intended  to,  and  did  in  fact, 
cause  him  damage.  .The  only  proof  at  the  trial  of  such  damage  consisted, 
however,  of  evidence  of  general  loss  of  business  without  specific  proof  of  the 
loss  of  any  particular  customers  or  orders,  and  the  question  we  have  to  deter- 
mine is,  whether  in  such  an  action  such  general  evidence  of  damage  was  ad- 
missible and  sufficient.  That  an  action  will  lie  for  written  or  oral  falsehoods, 
not  actionable  per  ae  nor  even  defamatory,  where  they  are  maliciously  pub- 
lished, where  they  are  calculated  in  the  ordinary  course  of  things  to  produce, 
and  where  they  do  produce,  actual  damage,  is  established  law.  Such  an  action 
is  not  one  of  libel  or  of  slander,  but  an  action  on  the  case  for  damage  wilfully 
and  intentionally  done  without  just  occasion  or  excuse,  analogous  to  an  action 
for  slander  of  title.  To  support  it  actual  damage  must  be  shown,  for  it  is  an 
action  which  only  lies  in  respect  of  such  damage  as  has  actually  occurred.  It 
was  contended  before  us  that  in  such  an  action  it  is  not  enou^  to  allege  and 
prove  general  loss  of  business  arising  from  the  publication,  since  such  general 
loss  is  general  and  not  special  damage,  and  special  damage,  as  often  has  been 
said,  is  the  gist  of  such  an  action  on  the  case.  Lest  we  should  be  led  astray 
in  such  a  matter  by  mere  words,  it  is  desirable  to  recollect  that  the  term 
"  special  damage,"  which  is  found  for  centuries  in  the  books,  is  not  alwa3rs 
useid  with  reference  to  similar  subject-matter,  nor  in  the  same  context.  At 
times  (both  in  the  law  of  tort  and  of  contract)  it  is  employed  to  denote  that 
damage  arising  out  of  the  special  circumstances  of  the  case  which,  if  properly 
pleaded,  may  be  superadded  to  the  general  damage  which  the  law  implies  in 
every  breach  of  contract  and  every  infringement  of  an  absolute  right:  see 
Ashby  V.  White,  2  Ld.  Raym.  938;  1  Sm.  L.  C.  9th  ed.  p.  268,  per  Holt,  C.  J. 
In  all  such  cases  the  law  presumes  that  same  damage  will  flow  in  the  ordinary 
course  of  things  from  the  mere  invasion  of  the  plaintiff's  rights,  and  calls  it 
general  damage.  Special  damage  in  such  a  context  means  the  particular  dam- 
age (beyond  the  general  damage),  which  results  from  the  particular  circum- 

^  The  arguments  of  counsel  are  omitted. 


stances  of  the  case,  and  of  the  plaintiff's  claim  to  be  compensated,  for  whidi 
he  ought  to  give  warning  in  his  pleadings  in  order  that  there  may  be  no  sur- 
prise at  the  trial.  But  where  no  actud  and  positive  right  (apsui;  from  the 
damage  done)  has  been  disturbed,  it  is  the  damage  done  that  is  the  wrong; 
and  the  expression  ''  special  damage,"  when  used  of  this  damage,  denotes  the 
actual  and  temporal  loss  which  has,  in  fact,  occurred.  Such  daniage  is  called 
variously  in  old  authorities,  "  express  loss,"  "  particular  damage:  "  Cane  v, 
Golding,  Sty.  169;  "  damage  in  fact,"  "  special  or  particular  cause  of  loss:  " 
Law  V.  Harwood,  Cro.  Car.  140;  Tasbur^  v.  Day,  Cro.  Jac.  484. 

The  term  "  special  damage  "  has  also  been  used  in  actions  on  the  case 
brought  for  a  public  nuisance,  such  as  the  obstruction  of  a  river  or  a  hi^way, 
to  denote  that  actual  and  particular  loss  which  the  plaintiff  must  allege*  and 
prove  that  he  has  sustained  beyond  what  is  sustained  by  the  general  public,  if 
his  action  is  to  be  supported,  such  particular  loss  being,  as  is  obvious,  the 
cause  of  action:  see  Iveson  v.  Moore,  1  Ld.  Raym.  486;  Rose  v.  Groves,  5 
M.  &  G.  613.  In  this  judgment  we  shall  endeavor  to  avoid  a  term  which, 
intelligible  enough  in  pe^cular  contexts,  tends,  when  successively  employed 
in  more  than  one  context  and  with  regard  to  different  subject-matter,  to  en- 
courage confusion  in  thought.  The  question  to  be  decided  does  not  depend  on 
words,  but  is  one  of  substance.  In  an  action  like  the  present,  brou^t  for  a 
malicious  falsehood  intentionally  published  in  a  newspaper  about  the  plain- 
tiff's busmess  —  a  falsehood  which  is  not  actionable  as  a  personal  libel  and 
which  is  not  defamatory  in  itself  —  is  evidence  to  show  that  a  general  loss  of 
business  has  been  the  direct  and  natural  result  admissible  in  evidence,  and,  if 
uncontradicted,  sufficient  to  mamtaln  the  action  ?  In  the  case  of  a  personal 
libel,  such  general  loss  of  custom  may  unquestionably  be  alleged  and  proved. 
Every  libel  is  of  itself  a  wrong  in  r^;ard  of  which  the  law,  as  we  have  seen, 
implies  general  damage.  By  the  very  fact  that  he  has  committed  such  a 
wrong,  the  defendant  is  prepared  for  the  proof  that  some  general  damage  may 
have  been  done.  As  is  said  by  Gould,  J.,  in  Iveson  v.  Moore,  1  Ld.  Raym.  486, 
in  actions  against  a  wrong-doer  a  more  general  mode  of  declaring  is  allowed. 
If,  indeed,  over  and  above  this  general  damage,  further  particular  damage  is 
under  the  circumstances  to  be  relied  on  by  the  plaintiff,  such  particular  dam- 
age must  of  course  be  alleged  and  shown.  But  a  loss  of  general  custom,  flow- 
ing directly  and  in  the  ordinary  course  of  things  from  a  libel,  may  be  alleged 
and  proved  generally.  "  It  is  not  special  dams^  "  —  says  Pollock,  C.  B.,  in 
Harrison  v.  Pearoe,  32  L.  T.  (0.  S.)  298,  —  "  it  is  general  damage  resulting 
from  the  kind  of  injury  the  plaintiff  has  sustained."  So  in  Bluck  v,  Lovering,  1 
Times  L.  R.  497,  under  a  general  all^ation  of  loss  of  credit  in  business,  gen- 
eral evidence  was  received  of  a  decline  of  business  presumably  due  to  the 
publication  of  the  libel,  whil^  loss  of  particular  customers,  not  having  been 
pleaded,  was  held  ri^tly  to  have  been  rejected  at  the  trial:  see  also  Ingram 
V.  Lawson,  6  Bing.  N.  C.  212.  Akin  to,  though  distinguishable  m  a  respect 
which  will  be  mentioned  from,  actions  of  libel  are  those  actions  which  are 
brought  for  oral  slander,  where  such  slander  consists  of  words  actionable  in 
themselves  and  the  mere  use  of  which  constitutes  the  infringement  of  the 
plaintiff's  right.  The  very  speaking  of  such  words,  apart  from  all  damage, 
constitutes  a  wrong  and  gives  rise  to  a  cause  of  action.  The  law  in  such  a 
case,  as  in  the  case  of  libel,  presumes,  and  in  theory  allows,  proof  of  general 
damage.    But  skmder,  even  if  actionable  in  itself,  is  regarded  as  differing 


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from  libel  in  a  point  which  renders  proof  of  general  damage  in  slander  cases 
difficult  to  be  made  good.  A  person  who  publishes  defamatory  matter  on  paper 
or  in  print  puts  in  circulation  that  which  is  more  permanent  and  more  easily 
transmissible  than  oral  slander.  Verbal  defamatory  statements  may,  indeed, 
be  intended  to  be  repeated,  or  may  be  uttered  under  such  circumstances  that 
their  repetition  follows  in  the  ordinary  course  of  things  from  their  original 
utterance.  Except  in  such  cases,  the  law  does  not  allow  the  plamtiff  to  re- 
cover damages  which  flow,  not  from  the  original  slander,  but  from  its  un- 
authorized repetition:  Ward  v.  Weeks,  7  Bing.  211;  Holwood  v,  Hopkins, 
Cro.  Eliz.  787;  Dixon  w.  Smith,  6  H.  &  N.  450.  General  loss  of  custom  cannot 
properly  be  proved  in  respect  of  a  slander  of  this  kind  when  it  has  been  uttered 
under  such  circumstances  that  its  repetition  does  not  flow  directly  and  natu- 
rally from  the  circumstances  under  which  the  slander  itself  was  uttered.  The 
doctrine  that  in  slanders  actionable  per  se  general  damage  may  be  alleged  and 
proved  with  generality  must  be  taken,  therefore,  with  the  qualification  that 
the  words  complamed  of  must  have  been  spoken  under  circumstances  which 
might  in  the  ordinary  course  of  things  have  directly  produced  the  general 
damage  that  has  in  fact  occurred.  Evans  v.  Harries,  1  H.  &  N.  251,  was  a 
slander  uttered  in  such  a  manner.  It  consisted  of  words  reflecting  on  an  inn- 
keeper in  the  conduct  of  his  business  spoken  openly  in  the  presence  of  divers 
persons,  guests  and  customers  of  the  inn  —  a  floating  and  transitory  class. 
The  court  held  that  general  evidence  of  the  decline  of  business  was  rightly 
receivable.  "  How,"  asked  Martin,  B.,  "  is  a  public-house  keeper,  whose  only 
customers  are  persons  passing  by,  to  ^ow  a  damage  resulting  from  the  slan- 
der, unless  he  is  allowed  to  give  general  evidence  of  a  loss  of  custom  ?  "  Mac- 
loughlin  V.  Welsh,  10  Ir.  L.  Hep.  19,  was  an  instance  of  excommunication  in 
open  church.  General  proof  was  held  to  be  rightly  admitted  that  the  plaintiff 
was  shunned  and  his  mill  abandoned,  though  no  loss  of  particular  customers 
was  shown.  Here  the  very  nature  of  the  slander  rendered  it  necessary  that 
such  general  proof  should  be  allowed.  The  defamatory  words  were  spoken 
openly  and  publicly,  and  were  intended  to  have  the  exact  effect  which  was  pro- 
duced. Unless  such  general  evidence  was  admissible,  the  injury  done  could 
not  be  proved  at  all.  If,  in  addition  to  this  general  loss,  the  loss  of  particular 
customers  was  to  be  relied  on,  such  particular  losses  would,  in  accordance  with 
the  ordinary  rules  of  pleading,  have  been  required  to  be  mentioned  in  the 
statement  of  claim:  see  Ashley  v.  Harrison,  1  Esp.  50.  From  libels  and 
slanders  actionable  per  86,  we  pass  to  the  case  of  slanders  not  actionable  per 
«e,  where  actual  damage  done  is  the  very  gist  of  the  action.  Many  old  authori- 
ties may  be  cited  for  the  proposition  that  in  such  a  case  the  actual  loss  must 
be  proved  specially  and  with  certainty:  Law  v,  Harwood,  Cro.  Car.  140. 
Many  such  instances  are  collected  in  the  judgments  in  Iveson  v.  Moore,  1  Ld. 
Haym.  486,  where,  although  there  was  a  difference  as  to  whether  the  general 
rule  had  been  fulfilled  in  that  particular  kind  of  action  on  the  case,  no  doubt 
was  thrown  on  the  principle  itself.  As  was  there  said  —  in  that  language  of 
old  pleaders  which  has  seen  its  day,  but  which  connoted  more  accuracy  of  legal 
thought  than  is  produced  by  modem  statements  of  claim  —  "  damages  in  the 
*  per  quod  J  where  the  '  per  quod '  is  the  gist  of  the  action,  should  be  shown 
certainly  and  specially."  But  such  a  doctrine  as  this  was  always  subject  to 
the  qualification  of  ^xxi  sense  and  of  justice.  Cases  may  here,  as  before, 
occur  where  a  general  loss  of  custom  is  the  natural  and  direct  result  of  the 


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slander,  and  where  it  is  not  possible  to  specify  particular  instances  of  the  loss. 
Hartley  v.  Herring,  8  T.  R.  130,  is  probably  a  case  of  the  kind,  although  it 
does  not  appear  from  the  report  under  what  circumstances,  or  in  the  presence 
of  whom,  the  slanderous  words  were  uttered.    But  if  the  words  are  uttered  to 
an  individual,  and  repetition  is  not  intended  except  to  a  limited  extent,  general 
loss  of  custom  cannot  be  ordinarily  a  direct  and  natural  result  of  the  limited 
slander:  Dixon  v.  Smith,  5  H.  &  N.  450;  Hopwood  v.  Thorn,  19  L.  J.  (C.  P.) 
95.   The  broad  doctrine  is  stated  in  BuUer's  Nisi  Prius,  p.  7,  that  where  words 
are  not  actionable,  and  the  special  damage  is  the  ^t  of  the  action,  saying 
generally  that  several  persons  left  the  plaintiff's  house  is  not  laying  the  special 
damage.    Slanders  of  title,  written  or  oral,  and  actions  such  as  the  present, 
brought  for  damage  done  by  falsehoods,  written  or  oral,  about  a  man's  goods 
or  business,  are  similar  in  many  respects  to  the  last-mentioned  class  of  slan- 
ders not  actionable  in  themselves.    Damage  is  the  gist  of  both  actions  alike, 
and  it  makes  no  difference  in  this  respect  whether  the  falsehood  is  oral  or  in 
writing:   Malachy  v.  Soper.    The  necessity  of  alleging  and  proving  actual 
temporal  loss  with  certainty  and  precision  in  all  caj^  of  the  sort  has  been 
insbted  upon  for  centuries:   Lowe  v.  Harewood,  W.  Jones,  196;   Cane  v. 
Golding,  Sty.  176;  Tasburgh  v.  Day,  Cro.  Jac.  484;  Evans  v.  Harlow,  5  Q.  B. 
624.    But  it  is  an  ancient  and  established  rule  of  pleading  that  the  question 
of  generality  of  pleading  must  depend  on  the  general  subject-matter:  Janson 
V,  Stuart,  1  T.  R.  754;  Lord  Arlington  v.  Merricke,  2  Saund.  412,  n.  4;  Grey 
V.  Friar,  15  Q.  B.  907;  see  Co.  Litt.  303  d;  Westwood  v,  Cowne,  1  Stark.  172; 
Iveson  V.  Moore,  1  Ld.  Rajon.  486.    In  all  actions  accordingly  on  the  case 
where  the  damage  actually  done  is  the  gist  of  the  action,  the  character  of  the 
acts  themselves  which  produce  the  damage,  and  the  drciunstances  under 
which  these  acts  are  done,  must  regulate  the  degree  of  certainty  and  particu- 
larity with  which  the  damage  done  ought  to  be  stated  and  proved.    As  much 
certainty  and  particularity  must  be  insisted  on,  both  in  pleading  and  proof  of 
damage,  as  is  reasonable,  having  regard  to  the  circumstances  and  to  the  nature 
of  the  acts  themselves  by  which  the  damage  is  done.   To  insist  upon  less  would 
be  to  relax  old  and  intelligible  principles.    To  insist  upon  more  would  be  the 
vainest  pedantry.    The  rule  to  be  laid  down  with  regard  to  malicious  false- 
hoods affecting  property  or  trade  is  only  an  instance  of  the  doctrines  of  good 
Sjense  applicable  to  all  that  branch  of  actions  on  the  case  to  which  the  class 
under  discussion  belongs.    The  nature  and  circumstances  of  the  publication 
Qf  the  falsehood  may  accordingly  require  the  admission  of  evidence  of  general 
loss  of  business  as  the  natural  and  direct  result  produced,  and  perhaps  in- 
tended to  be  produced.    An  instructive  illustration,  and  one  by  which  the 
present  appeal  is  really  covered,  is  furnished  by  the  case  of  Hargrave  v.  Le 
Breton,  4  Burr.  2422,  decided  a  century  and  a  half  ago.   It  was  an  example  of 
slander  of  title  at  an  auction.    The  allegation  in  the  declaration  was  that 
divers  persons  who  would  have  purchased  at  the  auction  left  the  place;  but 
no  particular  persons  were  named.   The  objection  that  they  were  not  specially 
mentioned  was,  as  the  report  teUs  us,  "  easily  "  answered.   The  answer  given 
was  that  in  the  nature  of  the  transaction  it  was  impossible  to  specify  names; 
that  the  injury  complained  of  was  in  effect  that  the  bidding  at  the  auction 
had  been  prevented  and  stopped,  and  that  everybody  had  gone  away.   It  had, 
therefore,  become  impossible  to  tell  with  certainty  who  would  have  been 
bidders  or  purchasers  if  the  auction  had  not  been  rendered  abortive.  This  case 


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CHAP.  VIII.]  DUDLEY  V.  BRIGG8  859 

shows,  what  sound  judgment  itself  dictates,  that  in  an  action  for  falsehood 
producing  damage  to  a  man's  trade,  which  in  its  very  nature  is  intended  or 
reasonably  likely  to  produce,  and  which  in  the  ordinary  course  of  things  does 
produce,  a  general  loss  of  business,  as  distinct  from  the  loss  of  this  or  that 
known  customer,  evidence  of  such  general  decline  of  business  is  admissible. 
In  Hargrave  v.  Le  Breton  it  was  a  falsehood  openly  promulgated  at  an  auction. 
In  the  case  before  us  to-day,  it  is  a  falsehood  openly  disseminated  through  the 
press  —  probably  read,  and  possibly  acted  on,  by  persons  of  whom  the  plaintiff 
never  heard.  To  refuse  with  reference  to  such  a  subject-matter  to  admit  such 
general  evidence  would  be  to  misunderstand  and  warp  the  meaning  of  old 
expressions;  to  depart  from,  and  not  to  follow,  old  rules;  and,  in  addition 
to  all  this,  would  involve  an  absolute  denial  of  justice  and  of  redress  for  the 
very  mischief  which  was  intended  to  be  conunitted.  It  may  be  added  that,  so 
far  as  the  decision  in  Riding  v.  Smith  can  be  justified,  it  must  be  justified  on 
the  ground  that  the  court  (rightly  or  wron^y)  believed  the  circumstances 
imder  which  the  falsehood  was  uttered  to  have  brought  it  within  the  scope 
of  a  similar  principle.  In  our  opinion,  therefore,  there  has  been  no  misdirec- 
tion and  no  improper  admission  of  evidence,  and  this  appeal  should  be  dis- 
missed with  costs.  Appeal  dismissed.^ 


DUDLEY  V.  BRIGGS 
SuFRBME  Judicial  Coxtbt,  Massachusetts,  Mat  8, 1886. 

Reported  in  141  MasBochuseUs  Reporter  582. 

Tort.  Writ  dated  Sept.  18, 1885.  The  declaration  was  as  follows: 
"  And  the  plainti£f  says  that  be  is,  and  has  been  for  many  years,  a 
compiler  and  publisher  of  directories  of  cities,  towns,  and  counties  in 
this  Conmionwealth  and  elsewhere;  that  by  care,  attention,  skill,  and 
faithfulness,  and  after  great  labor  and  expense,  be  had  acquired  a 
large  number  of  subscribers  among  business  men  and  other  people, 
throughout  the  cities  and  towns  of  Bristol  County,  and  elsewhere  in 
this  Conmionwealth,  for  '  The  Bristol  County  Directory,'  which  the 
plainti£f  has  compiled  and  published  bienniaUy  for  many  years,  and 
until  the  acts  and  doings  of  the  defendant  hereinafter  complained  of; 
that,  at  great  labor  and  expense,  be  had  acquired  a  large  and  valuable 
list  of  advertisers  in  his  said  directory,  from  whom,  as  well  as  from 
the  said  subscribers  to  said  directory,  he  obtained  a  large  income,  and 
would  have  continued  to  do  so,  but  for  the  acts  and  doings  of  the 
defendant  hereinafter  alleged  and  set  forth. 

^  See  American  Ins.  Co.  v,  France,  111  111.  App.  382:  Davis  &.  New  England 
Pub.  Co.,  203  Mass.  470;  Haney  Mfg.  Co.  v.  Perkins,  78  Mich.  1 ;  Benton  v,  Pratt, 
2  Wend.  385. 

"  [If,  from  the  nature  of  the  case,  the  amount  of  damai^  caused  to  a  plaintiff  by 
the  tort  of  a  defendant  cannot  be  estimated  with  certamty,  shall  the  defendant 
therefore  be  exonerated  from  liability?]  Certaintv,  it  is  true,  would  thus  be  at- 
tained, but  it  would  be  the  certainty  of  injustice."  Christiancy,  J.,  in  Allison  v. 
Chandler,  11  Michigan,  542,  555.    See  also  pp.  553-556. 


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''  And  the  plaintiff  Qa.yB  that,  according  to  his  usual  and  ordinary 
custom  in  the  compilation  and  publication  of  the  said  '  The  Bristol 
County  Directory/  he  would  have  compiled  and  published  the  same  in 
this  year,  a.  d.  1885,  and  he  made  his  preparations  therefor,  but  he 
says  that  the  defendant  and  his  canvassers,  and  other  servants  and 
agents,  in  order  to  injiure  the  plaintiff,  and  to  deprive  him  of  the 
opportunity  of  compiling  and  publishing  said  directory  for  said  year 
of  1885,  and  thereafterwards,  and  receiving  the  gainsigand  profits  there- 
from, and  to  secure  the  same  to  the  defendant,  together  with  all  the 
gains  and  profits  arising  therefrom,  and  otherwise  to  injure  the  plain- 
tiff and  get  gain,  profit,  and  advantage  to  the  defendant,  knowingly 
and  wilfully,  falsely  and  fraudulently,  pretended  and  represented  to 
many  persons,  and  particularly  to  the  plaintiff's  patrons,  the  adver- 
tisers in  said  directory  and  the  subscribers  thereto  throughout  said 
Bristol  Ck)unty,  that  the  plaintiff  had  gone  out  of  the  business  of 
compiling  and  publishing  said  directory,  that  the  plaintiff  had  sold 
out  said  business  to  the  defendant,  that  the  said  canvassers  and  the 
defendant's  other  servants  and  agents  were  compiling  the  materials 
for  the  plaintiff's  directory,  the  same  as  formerly,  and  other  false  and 
fraudulent  representations  then  and  there  made,  of  which  the  plaintiff 
is  not  yet  fully  informed,  and  thereby  deceitfully  and  wrongfully  in- 
duced the  plaintiff's  said  patrons,  advertisers,  and  subscribers,  in  and 
throughout  said  Bristol  County,  to  give  to  the  defendant  their  adver- 
tisements and  subscriptions,  and  to  pay  him  instead  of  the  plaintiff 
therefor. 

"  Whereas,  in  truth  and  in  fact,  the  said  representations  were  wholly 
false  and  imtrue;  the  plai^tiff  had  neither  gone  out  of  the  business  of 
compiling  and  publishing  the  said  directory,  as  he  had  done  for  years 
before,  nor  had  he  sold  out  to  the  defendant,  nor  had  he  any  intention 
of  doing  so;  nor  were  the  defendant  and  his  canvassers,  and  other 
agents  and  servants,  compiling  the  said  directory  the  same  as  formerly 
or  for  the  plaintiff;  all  of  which  the  defendant,  as  well  as  his  said 
canvassers  and  other  servants  and  agents,  well  knew.  And  the  defend- 
ant did  knowingly,  wrongfully,  injuriously,  and  deceitfully  compile 
and  publish  the  said '  The  Bristol  County  Directory,'  for  the  year  a.  d. 
1885,  and  vend  and  sell  the  same  to  the  plaintiff's  patrons,  advertisers, 
subscribers,  and  other  persons,  as  aforesaid.  And  the  plaintiff  says 
that  thereby  he  has  been  prevented  from  compiling,  publishing,  and 
selling  his  said  directory  this  year,  a.  d.  1885,  as  he  has  always  done 
heretofore;  that  he  has  lost  the  great  gains  and  profits  which  he 
would  otherwise  have  made  and  received  from  the  sale  thereof,  and 
from  advertisers  in  and  subscribers  to  said  directory,  and  has  been 
put  to  great  loss  and  expense  in  preparing  for  said  compilation  and 
publication,  till  he  learned  of  the  defendant's  said  act  and  doings,  and 
thereby  he  will  be  hereafter  prevented  from  compiling  and  publishing 
said  directory  except  at  an  increased  expense  and  with  diminished 
profits." 


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The  defendant  demurred  to  the  declaration,  on  the  ground  that  it 
did  not  set  forth  a  legal  cause  of  action. 

The  Superior  Court  sustained  the  demurrer;  and  ordered  judgment 
for  the  defendant.    The  plaintiflF  appealed  to  this  court. 

Field,  J.  The  plaintiff  in  his  declaration  does  not  allege  that,  by 
the  acts  of  the  defendant,  he  has  been  deprived  of  the  benefit  of  any 
contract  he  had  made,  or  of  any  property  in  existence  and  in  his 
possession,  or  that  the  defendant  publidied  his  directory  for  1885  as  a 
directory  prepared  and  published  by  the  plaintiff;  and  does  not  bring 
his  case  within  such  decisions  as  Lumley  v.  Gye,  Marsh  v.  Billings, 
7  Cush.  322;  Thomson  v.  Winchester,  19  Pick.  214;  Blofeld  v.  Payne, 
4  B.  &  A.  410;  Morison  v.  Salmon,  2  M.  &  G.  385;  and  Sykes  v. 
Sykes,  3  B.  &  C.  641. 

He  does  not  allege  that  he  had  any  cop3rright  in  the  previous  pub- 
lications which  the  publication  of  the  defendant  infringed;  and  the 
courts  of  the  Commonwealth  have  no  jurisdiction  over  infringements 
of  cop3rright.  If  each  publication  of  a  directory  by  the  plaintiff  every 
two  years  was  a  separate  publication,  then  the  plaintiff's  declaration 
amounts  to  this,  —  that  he  intended  to  publish  a  directory  for  1885, 
whereby  he  expected  to  make  profits,  but,  by  reason  of  the  acts  of  the 
defendant,  he  abandoned  such  an  intention,  and  lost  the  profits  he 
otherwise  would  have  made.  But  an  intention  in  the  mind  of  the 
plaintiff  to  compile  and  publish  a  directory  is  not  property,  and  the 
abandonment  of  such  an  intention  is  not  a  loss  of  property.  Bradley 
V.  Fuller,  118  Mass.  239. 

An  attempt  has  been  made  to  bring  this  case  within  what  is  called 
slander  of  goods,  manufactured  and  sold  by  another.  See  Western 
Coimties  Manure  Co.  v.  Lawes  Chemical  Manure  Co.,  L.  R.  9  Ex.  218. 
This  implies  that  the  plaintiff  was  engaged  in  the  business  of  making 
and  selling  directories,  and  that  the  defendant  made  statements  dis- 
paraging the  plaintiff's  business.  We  think  that  the  declaration  does 
not  show  that  the  business  of  the  plaintiff,  in  publishing  a  new  direc- 
tory every  two  years,  was  a  continuous  business.  The  directory  to  be 
published  in  1885  was  to  be  a  new  compilation  and  publication.  From 
the  nature  of  the  book,  perhaps  this  could  not  well  be  otherwise.  New 
subscribers  and  new  advertisements  were  to  be  obtained.  We  have 
been  shown  no  case  where  it  has  been  held  that  a  false  statement  that 
the  plaintiff  had  gone  out  of  business,  or  sold  out  his  business  to  the 
defendant,  was  an  actionable  slander  of  a  person  in  his  trade;  but 
upon  this  we  express  no  opinion.  It  may  be  said  that  such  statements 
tend  to  injure  a  man  in  his  business,  because  they  tend  to  prevent  cus- 
tomers from  resorting  to  him  for  trade,  and  to  injure  the  value  of  the 
good-will  of  his  business.  However  this  may  be,  the  difficulty  is  in 
attaching  good-will  as  a  valuable  thing  to  the  publication  every  two 
years  of  a  new  directory.  Such  a  directory  could  be  published  by  any- 
body.   It  is  perhaps  ^  question  of  degree  whether  the  publication  by 


the  plaintiff  had  been  so  frequent  and  regular  that  there  can  be  said 
to  be  a  good-will  that  would  be  protected  in  law.  There  is  no  allega^ 
tion  of  any  continuing  contract,  express  or  implied,  of  subscribing  for, 
or  advertising  in,  the  directories,  as  a  publication  periodically  issued; 
there  is  no  allegation  of  any  place  of  business  to  which  customers 
resorted  to  purchase  directories.  Until  the  plaintiff  had  entered  upon 
the  compilation  of  the  directory  for  1885,  we  do  not  think  that  there 
was  any  business  of  publishing  a  directory  for  1885  carried  on  by  the 
plaintiff,  or  anything  that,  for  example,  could  have  been  sold  as  a 
going  concern  by  an  assignee  in  insolvency,  if  the  plaintiff  had  become 
an  insolvent  debtor.  The  cases  upon  liability  for  wrongful  interfer- 
ence with  the  business  of  another  are  largely  collected  in  Walker  v. 
Cronin;  but  in  that  case  there  was  an  actual  business,  with  the  carry^ 
ing  on  of  which  the  defendant  wrongfully  interfered.  The  declaration 
in  this  case,  indeed,  alleges  that  the  plaintiff  made  his  preparations 
for  compiling  and  publishing  a  directory  for  1885,  but  it  does  not 
allege  what  those  preparations  were,  or  that  they  were  an3rthing  valu- 
able. The  averment  that  he  '*  has  been  put  to  great  loss  and  expense 
in  preparing  for  said  compilation  and  publication,''  near  the  end  of 
the  declaration,  appears  to  be  a  part  of  the  damages. 

The  plaintiff  cites  Swan  v.  Tappan,  5  Cush.  104,  but  there  the 
declaration  was  held  insufficient,  because  there  was  no  allegation  of 
special  damage.  The  declaration  in  the  present  case  cannot  well  be 
distinguished  in  this  respect  from  the  declaration  in  Swan  v.  Tappan, 
but  we  do  not  deem  it  necessary  to  reconsider  the  decision  in  that  case 
on  this  point.  There,  the  plaintiff  was  actually  engaged  in  selling 
his  book,  which  had  already  been  printed  and  put  upon  the  market, 
and  the  action  was  the  ordinary  action  for  the  malicious  disparage- 
ment of  the  goods  of  another,  manufactured  and  kept  for  sale. 

The  plaintiff  relies  upon  Benton  v.  Pratt,  2  Wend.  385,  which  per- 
haps may  be  considered  as  an  extreme  case.  See  Randall  v.  Hazelton, 
12  All.  412.  In  Benton  v.  Pratt,  Seagraves  and  Wilson,  at  Allentown^ 
had  orally  agreed  to  purchase  of  the  plaintiff  two  hundred  hogs,  at  the 
market  price,  if  delivered  within  three  or  four  weeks,  and  they  had  not 
been  previously  supplied;  and,  "  about  the  time  for  the  delivery,"  the 
plaintiff  was  proceeding  with  his  drove  of  hogs  to  AUentown  for  the 
purpose  of  delivering  to  them  two  hundred  hogs.  The  defendant,  by 
his  falsehood  and  deceit,  intentionally  prevented  the  performance  of 
this  contract,  by  persuading  Seagraves  and  Wilson  that  the  plaintiff 
was  not  intending  to  drive  his  hogs  to  AUentown,  whereby  they  were 
induced  to  buy  the  hoge  of  the  defendant,  instead  of  buying  the  hogs 
of  the  plaintiff,  as  they  otherwise  would  have  done.  The  court  say, 
that  it  was  "  not  material  whether  the  contract  of  the  plaintiff  with 
Seagraves  and  Wilson  was  binding  upon  them  or  not;  "  but  the  agree- 
ment, if  there  was  an  agreement,  although  not  in  writing,  was  an 
actual  offer  by  Seagraves  and  Wilson,  not  revoked,  and  which  they 


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would  have  performed,  and  the  plaintijBf  was  in  the  actual  possession 
of  the  property  which  Seagraves  and  Wilson  had  offered  to  buy,  and 
was  actually  proceeding  to  deliver  this  property  to  them,  in  accord- 
ance with  tJieir  ofifer. 

The  fatal  objection  to  the  present  case  is,  that  it  is  entirely  prob- 
lematical whether  the  plaintijBf  would  actually  have  published  a  direc- 
tory if  the  defendant  had  not  made  the  fraudulent  misrepresentations 
alleged.  The  plaintiff  abandoned  his  intention  to  compile  and  pub- 
lish a  directory  in  consequence  of  the  defendant's  acts;  but  this,  upon 
the  principles  stated  in  Bradley  v.  Fuller,  118  Mass.  239,  and  the 
cases  therein  cited,  is  not  sufficient  to  support  an  action. 

JudgrnerU  affirmed. 


GARRET  V.  TAYLOR 

In  the  King's  Bench,  Easteb  Term,  1620. 
Reported  in  Croke^  James,  567. 

AcnoN  on  the  case.  Whereas  he  was  a  Freemason,  and  used  to  sell 
stones,  and  to  make  stone  buildings,  and  was  possessed  of  a  lease  for 
divers  years  to  come  of  a  stone-pit  in  Hedington,  in  the  county  of 
Oxford,  and  digged  divers  stones  there,  as  well  to  sell  as  to  build 
withal;  that  the  defendant,  to  discredit  and  to  deprive  him  of  the 
commodity  of  the  said  mine,  imposed  so  many  and  so  great  threats 
upon  his  workmen,  and  all  comers  disturbed,  threatening  to  mayhem 
and  vex  them  with  suits  if  they  bought  any  stones;  whereupon  they 
all  desisted  from  buying,  and  the  others  from  working,  &c. 

After  judgment  by  nihil  dicit  for  the  plaintiff,  and  damages  found 
by  inquisition  to  fifteen  pounds,  it  was  moved  in  arrest  of  judgment, 
that  this  action  lay  not;  for  nothing  is  alleged  but  only  words,  and 
no  act  nor  insult:  and  causeless  suits  on  fear  are  no  cause  of  action. 

Sed  non  allocatur:  for  the  threatening  to  mayhem,  and  suits, 
whereby  they  durst  not  work  or  buy,  is  a  great  damage  to  the  plaintiff, 
and  his  losing  the  benefit  of  his  quarries  a  good  cause  of  action:  and 
although  it  be  not  shown  how  he  was  possessed  for  years,  by  what 
title,  Ac,  yet  that  being  but  a  conveyance  to  this  action,  was  held  to 
be  well  enough.    And  adjudged  for  the  plaintiff.^ 

1  Standard  Oa  Co.  v.  Doyle,  118  Ky.  662;  Dickson  v.  Dickson,  33  La.  Ann.  1261 
Accord. 

Threats  of  vexaiioue  suite  against  customers:  Emack  v.  Kane,  34  Fed.  46;  Lewin 
V,  Welsbacn  Light  Co.,  81  Fed.  904;  Farquhar  Co.  v.  National  Harrow  Co., 
99  Fed.  160;  Adriance  v.  National  Harrow  CJo.,  121  Fed.  827,  98  Fed.  118;  Ditt- 
^n  V.  Racine  Paper  Goods  Co..  164  Fed.  85;  Electric  Renovator  Co.  v.  Vacuum 
Cleaner  Co..  189  Fed.  754;  Atlas  Underwear  Co.  v.  Cooper  Underwear  Co.,  210 
Fed.  347;  Shoemaker  v.  South  Bend  Spark  Airester  Co.,  135  Ind.  471;  Rratt  Food 
Co.  V.  Bird,  148  Mich.  631. 


TARLETON  v.  M'GAWLEY 
At  Nisi  Prius,  coram  Lord  Kenton,  C.  J.,  Dbcember  21, 1801. 

Reported  in  Peake,  205. 

This  was  a  special  action  on  the  case.  The  declaration  stated  that 
the  plainti£f8  had  sent  a  vessel  called  the  ^^  Bannister/'  with  a  crew  on 
board,  under  the  command  of  one  Thomas  Smith,  and  loaded  with 
goods  proper  for  trading  with  the  natives,  to  a  part  of  the  coast  of 
Africa  called  Cameroon,  to  trade  with  the  natives  there.  That  while 
the  last-mentioned  ship  was  lying  off  Cameroon,  a  canoe  with  some 
natives  on  board  came  to  the  same  for  the  purpose  of  establishing  a 
trade,  and  went  back  to  the  shore,  of  which  defendant  had  notice. 
And  that  he  well  knowing  the  premises,  but  contriving  and  mali' 
ciously  intending  to  hinder  and  deter  the  natives  from  trading  with  the 
said  Thomas  Smith,  for  the  benefit  of  the  plaintiffs,  with  force  and 
arms,  fired  from  a  certain  ship  called  the  *^  Othello,"  of  which  he  was 
master  and  commander,  a  certain  cannon  loaded  with  gunpowder 
and  shot,  at  the  said  canoe,  and  killed  one  of  the  natives  on  board  the 
same.  Whereby  the  natives  of  the  said  coast  were  deterred  and  hin-- 
dered  from  trading  vnth  the  said  T.  Smith  for  the  benefit,  Ac,  and 
plaintiffs  lost  their  trade. 

Lord  Kenton.  This  action  is  brought  by  the  plainiiffs  to  recover  a 
satisfaction,  for  a  civil  injury  which  they  have  sustained.  The  injury 
complained  of  is,  that  by  the  improper  conduct  of  the  defendant  the 
natives  were  prevented  from  trading  with  the  plaintiffs.  The  whole 
of  the  case  is  stated  on  the  record,  and  if  the  parties  desire  it,  the 
opinion  of  the  court  may  hereafter  be  taken  whether  it  will  support 
an  action.  I  am  of  opinion  it  will.  Had  this  been  an  accidental  thing, 
no  action  could  have  been  maintained;  but  it  is  proved  that  the  de- 
fendant had  expressed  an  intention  not  to  peimit  any  to  trade,  until  a 
debt  due  from  the  natives  to  himself  was  satisfied.  If  there  was  any 
court  in  that  country  to  which  he  could  have  appUed  for  justice  he 
might  have  done  so,  but  he  had  no  right  to  take  the  law  into  his  own 
faands.^ 

HART  V.  ALDRIDGE  \J 

In  the  King's  Bench,  Mat  3, 1774. 
Reported  in  CotDper,  54. 

This  came  before  the  court  on  a  case  reserved  upon  the  following 
question:  Whether  imder  the  circumstances  of  this  case  the  plaintiff 
was  entitled  to  recover  ?  It  was  an  action  of  trespass  on  the  case  for 
enticing  away  several  of  the  plaintiff's  servants,  who  used  to  work  for 

^  St.  Johnsbury  Co.  v.  Hunt,  55  Vt.  570  (arrest  of  plaintiff's  en^eer  on  a  mali- 
cious and  baseless  charge,  whereby  the  running  of  plaintiff's  train  was  delayed) 
Accord, 


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him  in  the  capacity  of  journeymen  shoemakers.  The  jury  found  that 
Martin  and  Clayton  were  employed  as  journeymen  shoemakers  by  the 
plaintiff,  but  for  no  determinate  time,  but  only  by  the  piece,  and  had, 
at  the  time  of  the  trespass  laid,  each  of  them  a  pair  of  shoes  unfinished ; 
that  the  defendant  persuaded  them  to  enter  into  his  service,  and  to 
leave  these  shoes  unfinished,  which  they  accordingly  did. 

Mr.  DarweUf  for  the  plaintiff,  stated  it  to  be  a  question  of  common 
law,  and  that  the  only  point  for  the  opinion  of  the  court  was, "  whether 
a  joiumeyman  was  such  a  gervant.as  the  law  takes  notice  of  ?  "  In 
Qupport  of  which  proposition  he  insisted  that  a  jotuneyman  is  as  much 
a  servant  as  any  otiier  person  who  works  for  hire  or  wages;  that 
neither  in  reason  nor  at  common  law  is  there  any  distinction  between 
a  servant  in  one  capacity  or  another,  and  that  the  injury  of  seduction 
is  in  all  cases  the  same,  though  the  recompense  in  damages  may  be 
different.  He  pressed  ihe  argument  ab  inconvenienti,  stating  that  it 
would  be  of  great  detriment  to  the  town,  where  the  whole  trade  was  in 
a  great  measure  carried  on  by  this  sort  of  servant.  That  the  verdict 
had  found  the  defendant  to  be  apprised  of  the  retainer  of  the  servants, 
it  being  in  proof  that  he  had  desired  them  to  leave  their  work  then  in 
hand  imfinished. 

Mr.  WiUes,  contra.  The  single  question  is,  whether  the  enticing 
away  a  journeyman  shoemaker,  who  is  hired  to  make  a  single  pair  of 
shoes,  is  such  an  injury  to  his  master  as  that  an  action  will  Ue  for  it. 
Now  the  jury  have  foimd  that  there  was  no  hiring  for  any  determinate 
time,  but  only  by  the  piece :  if  so,  they  could  not  be  the  plaintiff's  serv- 
ants; for  the  term  "  journeyman  **  does  not  import  that  they  belong 
to  any  particular  master. 

Lord  Manbfdbld  interrupted  him.  The  question  is,  whether  sa3ang 
that  such  a  one  is  a  man's  journeyman,  is  as  much  as  to  say  that  he  is 
such  a  man's  servant;  that  is,  whether  the  jury,  by  finding  him  to  be 
the  plaintiff's  joiumeyman,  do  not  ex  vi  termini  find  him  to  be  his 
servant.  ,A  journeyman  is  a  servant  by  the  da^  and  it  makes  no 
difference  whether  the  work  is  done  by  the  day  or  by  the  piece.  He 
was  certainly  retained  to  finish  the  work  he  had  undertakei!,  and  the 
defendant  knowingly  enticed  him  to  leave  it  unfinished. 

What  is  the  gist  of  the  action  ?  That  the  defendant  has  enticed  a 
man  away  who  stood  in  the  relation  of  servant  to  the  plaintiff,  and  by 
whom  he  was  to  be  benefited.  I  think  the  point  turns  upon  the  jury 
finding  that  the  persons  enticed  away  were  employed  by  the  plaintiff 
as  his  journeymen.  It  might  perhaps  have  been  different  if  the  men 
had  taken  work  for  everybody,  and  after  the  plaintiff  had  employed 
them  the  defendant  had  appUed  to  them,  and  they  had  given  the 
preference  to  him  in  point  of  time.  For  if  a  man  lived  in  his  own 
house  and  took  in  work  for  different  people,  it  would  be  a  strong 
ground  to  say  that  he  was  no.t  th^  journeyman  of  any  particular  mas- 
jter;  but  the  gist  of  the  present  action  is  that  they  were  attached  to 
this  particular  master. 


( 


Aston,  J.  It  is  clear  that  a  master  may  maintain  an  action  against 
any  one  for  taking  and  enticing  away  his  servant,  upon  the  ground  of 
the  interest  which  he  has  in  his  service  and  labor.^  And  even  sup- 
posing, as  my  lord  has  stated,  that  the  servant  did  live  in  his  own 
house,  if  he  were  employed  to  finish  a  certain  number  of  shoes  for  a 
particular  person  by  a  fixed  time,  and  a  third  person  enticed  him 
away,  I  think  an  action  would  lie.  If  not,  it  might  be  of  very  bad 
consequence  in  trade.  He  is  a  servant  quoad  hoc,  and  thou^  the 
seducer  and  enticer  is  much  the  worse,  yet  the  law  inflicts  a  p^udty 
upon  workmen  leaving  their  work  imdone. 

Mr.  Justice  Willes  and  Mr.  Justice  Ashhubst  concurred. 

Per  Curiam,    Let  the  postea  be  delivered  to  the  plaintiff.* 


EAGER  V.  GRIMWOOD 
In  the  Exchbqxter,  June  1, 1847. 
Reported  in  1  Exchequer  Reporttj  61. 

Trespass  for  assaulting  and  debauchic^the  daughter  and  servant 
of  the  plaintiff,  whereby  she  then  became  pregnant,  &c.,  and  the  plain- 
tiff lost  and  was  deprived  of  her  services.    Plea:  Not  guilty. 

At  the  trial  before  Pollock,  C.  B.,  at  the  London  sittings  after  last 
Michaelmas  term,  the  following  facts  appeared:  The  connection  be- 
tween the  defendant  and  the  plaintiff's  daughter  took  place  for  the 

^  Gunter  v.  Astor,  4  Moore,  12;  Hartley  t^.  Cummin^,  5  C.  B.  247;  Jooes  v. 
Blocker,  43  Ga.  331;  Wharton  v,  Joasey,  46  Ga.  678;  Lee  v.  West,  47  Ga.  311 
(semble);  Smith  v.  Goodman,  75  Gra.  198;  Bundy  v,  Dodson,  28  Ind.  295;  Jones  v, 
Tevis,  4  Litt.  25;  Tyson  v,  Ewing,  3  J.  J.  Marsh,  186;  Carew  v.  Rutherford,  106 
Mass.  1;  Bixby  v,  Dunlap,  66  N.  H.  466;  StiUe  v,  Jenkins,  3  Green,  (N.  J.)  302; 
Scidmore  v.  Smith,  13  John.  322;  Covert  v.  Gray,  34  How.  Ft.  450;  Johnston  Co. 
V.  Meinhardt,  9  Abb.  N.  C.  393;  Stout  v.  Woody.  63  N.  C.  37;  Haskins  v.  Royster, 
70N.  C.  601;  Robinson  v.  Culp,  3  Brev.  302;  Daniel  v.  Swearengen.  6  S.  C.  297; 
Fowler  r.  Stonum,  6  Tex.  60;  Thacker  Co.  v.  Burke,  59  W.  Va.  253;  Oowper  v. 
Macfarlane,  6  Sess.  Cas.,  4th  Series,  683  Accord. 

See,  also,  Martinez  v.  Gerber,  3  M.  &  G.  88. 

An  action  will  lie  against  one  who  induces  a  servant  to  violate  his  duty  not  to 
communicate  the  trade  secrets  of  his  employer.  Jones  t;.  Westervelt,  7  Cow.  445; 
Kerr  v.  Roxburgh,  3  Murr.  (Scotland)  126;  Roxburgh  v.  McArthur,  3  Sess.  Cas., 
2d  Series.  566. 

'  In  Blaktt  v.  Lanyon,  6  T.  R.  221,  a  journeyman,  while  his  work  was  unfinished, 
left  plaintiff  and  hired  with  defendant,  who  then  did  not  know  the  facts.  Defend- 
ant was  held  liable  for  retaining  the  journeyman  s^ter  notice.  Fawoet  v.  Beavres, 
2  Lev.  63;  Pilkipgton  v.  Scott,  15  M.  A  W.  667;  Kennedy  v.  McArthur,  5  Ala.  161 ; 
Dacy  V.  Gay,  16  Ga.  203;  Everett  v.  Sherfey,  1  la.  356;  Stowe  v.  Heywood,  7  AH. 
118;  Sargent  v.  Mathewson,  38  N.  H.  54;  Dickson  v.  Taylor,  1  Murr.  (Scotland) 
141  Accord.  Adams  v.  Bafeald,  1  Leon.  240;  Caldwell  v,  O'Neal,  117  Ga.  775  (if 
contract  is  oral  only)  Contra, 

It  was  said  also  that  there  was  no  liability  for  the  hiring  of  plaintiff's  journey- 
man without  notice  of  the  facts.  Eades  v.  Vandeput,  5  East,  39  n.  (a) ;  Sherwood 
V.  Hall,  3  Sumn.  127;  Ferguson  v.  Tucker,  2  Har.  &  G.  182;  Butterfield  v.  Ashley, 
6  Cush.  249;  Sargent  v.  Mathewson,  38  N.  H.  54;  Clark  v.  Clark.  63  N.  J.  Law,  1 ; 
Stuart  V.  Simpson,  1  Wend.  376;  Caughey  v.  Smith,  47  N.  Y.  244;  Bell  v.  Lakin, 
1  McMull.  364;  Conant  v.  Raymond,  2  Aik.  243  Accord. 


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CHAP.  VUI.]  EAGER  V.  GRIMWOOD  867 

first  time  two  days  after  Christmas  day,  1844.  In  June,  1845,  the 
plaintiff's  daughter  gave  birth  to  a  child,  which,  according  to  the  evi- 
dence of  a  surgeon,  was  a  full-grown  child.  It  also  appeared  that  the 
plaintiff  had  been  put  to  some  expense  in  consequence  of  his  daughter's 
illness.  The  learned  Chief  Baron  left  it  to  the  jury  to  say  whether 
or  no  the  defendant  was  the  father  of  the  child;  and  he  told  them 
that  if  they  beUeved  he  was  not  the  father  of  the  child,  they  should 
find  a  verdict  for  him.    The  jury  having  found  for  the  defendant. 

Prentice  obtained  a  rule  nisi  for  a  new  trial,  on  the  groimd  of  mis- 
direction, against  which 

Humfrey  showed  cause. 

Prentice,  in  support  of  the  rule.* 

Pollock,  C.  B.  The  case  of  Grinnell  v.  Wells,  7  Man.  A  G.  1033, 
is  precisely  in  point.  That  case  decided  that  an  action  for  seduction 
cannot  be  maintaineJ~without  proof  of  loss  of  service.  Tihdal,  C.  J., 
in  deUvering  the  judgment  of  the  court,  says:  "  The  foundation  of  the 
action  by  a  father  to  recover  damages  against  the  wrong-doer,  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."  The  rule 
must  be  absolute  to  enter  a  nonsuit,  unless  the  plaintiff  will  consent  to 
a  8tet  processus. 

Alderson,  B.,  Rolfb,  B.,  and  Platt  B.,  concurred. 

Rule  accordingly.^ 

1  The  arguments  of  counsel  are  omitted. 

*  "  The  rule  which  sovems  the  numerous  cases  upon  this  subject  is,  that  where 
the  proximate  effect  ofthe  criminal  connection  is  an  incapacity  to  labor,  by  reason 
of  which  the  master  loses  the  services  of  his  servant,  such  loss  of  service  is  deemed 
to  be  the  immediate  effect  of  the  connection,  and  entitles  the  master  to  his  action. 
The  same  principle  which  gives  a  master  an  action  where  the  connection  causes 
preenancy  or  sexual  disease  applies  to  all  cases  where  the  proximate  consequence 
of  the  cnminal  act  is  a  loss  of  health  resulting  in  a  loss  of  service.  There  may  be 
cases  in  which  the  seduction,  without  producing  pregnancy  or  sexual  dis^isej. 
causes  bodily  injiuy,  impairing  the  health  of  the  servant,  and  resulting  in  a  loss  oi 
services  to  her  master.  So  the  criminal  connection  may  be  accompu^ed  under 
such  circumstances,  as,  for  instance,  of  violence  or  fraud,  that  its  proximate  ^ect 
is  mental  distress  or  disease,  impairing  her  health  and  destroying  her  capacity  to 
labor.  In  either  of  these  cases  the  master  may  maintain  an  action,  because  the  loss 
of  services  is  immediately  caused  by  the  connection,  as  much  as  in  cases  of  preg- 
nancy or  sexual  disease.  Vanhom  v.  Freeman,  1  Halst.  322.  But  if  the  loss  of 
health  is  caused  by  mental  suffering,  which  is  not  the  consequence  of  the  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  serv- 
ices is  too  remote  a  consequence  of  the  criminal  act,  and  the  action  cannot  be 
maintained.    Boyle  v.  Brandon,  13  M.  &  W.  738:  Knight  v,  Wilcox,  14  N.  Y.  413. 

'*  In  the  case  at  bar,  as  the  ruling  appears  to  nave  been  general  that  the  action 
could  not  be  maintained  unless  pregnancy  or  sexual  disease  was  proved,  we  think 
a  new  trial  should  be  granted.'*^  Morton,  J.,  in  Abrahams  v.  Kidney,  104  Mass. 
222.  SeetothesameeffectBlaggev.Usley,  127  Mass.  191;  CSark  v.  Claris,  63  N.  J. 
Law,  1;  White  v.  Nellis,  31  N.  Y.  405;  fiigerson  t;.  Miller,  47  Barb.  47. 


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EVANS  V.  WALTON 
In  the  Common  Pleas,  June  11, 1867. 
Reported  in  Law  Beparta,  2  Common  Pleae,  615. 

The  first  count  of  the  declaration  stated  that  Louisa  Evans  was  and 
still  is  the  servant  of  the  plaintiff  in  his  business  of  a  publican  and 
victualler;  and  that  the  defendant,  well  knowing  the  same,  wrongfully 
enticed  and  procured  the  said  Louisa  Evans  imlawfully  and  without 
the  consent  and  against  the  will  of  the  plaintiff,  her  said  master,  to 
depart  from  the  service  of  the  plaintiff;  whereby  the  plaintiff  had  lost 
the  service  of  the  said  Louisa  Evans  in  his  said  business. 

Heas:  Not  guilty;  and  that  Louisa  Evans  was  not  the  servant  of 
the  plaintiff,  as  allied.    Issue  thereon. 

Tlie  cause  was  tried  before  Pigott,  B.,  at  the  last  Spring  Assizes  at 
Oxford.  The  plaintiff  was  a  licens^  victualler  in  Birmingham,  and 
was  assisted  in  his  business  by  his  daughter  Louisa,  a  girl  about  nine- 
teen years  of  age,  who  served  in  the  bar  and  kept  the  accounts.  On 
the  10th  of  November,  1866,  the  daughter,  with  her  mother's  permis- 
sion, which  was  procured  by  means  of  a  fabricated  letter  purporting 
to  be  an  invitation  to  her  to  spend  a  few  da3rs  with  a  friend  at  Man- 
chester, left  the  plaintiff's  house  and  went  to  a  lodging-house  in  the 
neighborhood  of  Birmingham,  where  she  cohabited  with  the  defend- 
ant, at  whose  dictation  the  above-mentioned  letter  had  been  written. 
On  the  19th  of  November  the  daughter  returned  home,  and  resumed 
her  duties  for  a  short  time,  but  ultimately  left  her  home  again,  and  on 
the  9th  of  February  was  again  found  cohabiting  with  the  defendant  at 
the  same  lodging-bouse. 

On  the  part  of  the  defendant  it  was  submitted  that,  in  order  to  sus- 
tain the  action,  in  the  absence  of  an  all^ation  that  the  defendant  had 
debauched  the  plaintiff's  daughter,  it  was  necessary  to  show  a  binding 
contract  of  service. 

The  learned  Baron,  after  consulting  Blackburn,  J.,  intimated  an 
opinion  that  the  action  would  lie  upon  the  declaration  as  framed;  but 
he  reserved  to  the  defendant  leave  to  move  to  enter  a  nonsuit  if  the 
court  should  be  of  opinion  that  in  point  of  law  the  action  was  not 
maintainable,  i —  the  court  to  have  power  to  draw  any  inferences  of 
fact,  and  to  amend  the  declaration  if  necessary,  according  to  the  facts 
proved. 

The  case  was  then  left  to  the  jury,  who  returned  a  verdict  for  the 
plaintiff,  damages,  £50. 

HvMlestonj  Q.  C.,  in  Easter  term,  obtained  a  rule  niei. 

Powelly  Q.  C,  and  J.  0.  Griffita  (June  11)  showed  cause,  submit- 
ting that  the  action  would  lie  upon  the  declaration  as  it  stood. 

The  court  called  on 

H.  James  and  Jelf,  in  support  of  the  rule.  There  are  two  kinds  of 
action  for  loss  of  service,  viz.,  an  action  for  the  seduction  and  conse- 


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quent  loss  of  service  of  a  daughter,  and  an  action  for  enticing  away  a 
servant.  In  order  to  sustain  the  first,  it  is  not  enough  that  there  has 
been  criminal  intercourse,  but  it  must  be  shown  that  that  intercoimse 
has  resulted  in  pregnancy  or  other  illness  so  as  to  cause  a  disability  in 
the  daughter  to  perform  her  accustomed  duties:  Eager  v.  Grimwood; 
Boyle  V.  Brandon,  13  M.  &  W.  738;  but  an  actual  contract  of  service 
need  not  be  proved.  It  is  not  suggested  that  there  is  any  such  cause 
of  action  here.  In  Sedgwick  on  Damages  (2d  ed.),  page  543,  it  is 
said  that  '*  although  the  defendant  be  guilty  of  the  seduction,  but  the 
jury  are  of  opinion  that  the  child  is  not  his,  the  plaintiff  cannot  re- 
cover. In  other  words,  without  some  damage  to  the  plaintiff  or  master 
occasioned  by  the  illness  of  the  female,  and  resulting  from  the  illicit 
intercoiu'se,  the  plaintiff  is  without  relief.''  And  for  this  Eager  v. 
Grimwood  is  cited. 

[BoviLL,  C.  J.  Eager  v.  Grimwood  is  cited  in  Smith's  Leading 
Cases  (6th  ed.),  vol.  i.  p.  260,  with  evident  disapprobation.] 

No  precedent  is  to  be  found  without  the  all^ation  per  quod  aervU 
Hum  amisii.    The  action  for  seduction  is  an  anomalous  one. 

[WiLLEs,  J.  Upon  the  first  point,  I  think  we  are  bound  by  the  case 
of  Eager  v.  Grimwood.  The  question  is,  whether  the  action  may  not 
be  maintained  for  enticing  the  girl  away  from  her  father's  service.] 

To  sustain  an  action  for  enticing  away  a  servant,  it  is  necessary  to 
show  a  vaUd  and  binding  contract  of  service,  which  has  been  broken 
through  the  procurement  of  the  defendant.  Actual  service  is  not 
enough.  Here,  there  was  no  contract,  express  or  implied,  for  the 
breach  of  which  the  father  could  have  sued  his  daughter.  All  that  the 
defendant  can  be  charged  with  having  done  is,  inciting  the  daughter 
to  do  that  which  in  the  exercise  of  her  own  free  will  she  had  an  un- 
doubted right  to  do.  If  an  action  would  lie  for  this,  it  would  equally 
he  for  inducing  a  daughter  to  quit  her  father's  house  for  the  purpose 
of  manying  her.^  See  Fitz.  N.  B.  90  H.  In  Cox  v.  Muncey,  6  C.  B. 
N.  s.  375,  it  was  held  by  this  court  that  no  action  will  lie  for  enticing 
away  an  apprentice,  unless  there  be  a  valid  contract  of  apprentice- 
ship; and  the  like  was  held  as  to  a  servant  by  the  Court  of  Queen's 
Bench  in  Sykes  v.  Dixon,  9  Ad.  &  E.  693;  1  P.  &  D.  463. 

[BoviLL,  C.  J.  At  the  end  of  Lord  Denman's  judgment,  in  Sykes 
V.  Dixon,  there  is  a  remark  which  seems  to  be  adverse  to  your  view. 
"  Then,"  sajrs  his  Lordship,  "  it  was  argued,  on  the  authority  of 
Keane  v.  Boycott,  2  H.  Bl.  511,  that  the  objection  "  (that  is,  to  the 
validity  of  the  contract)  "  was  not  one  which  a  third  person  could 
take:  and  that  might  be  so  in  a  case  where  the  servant  was  de  facte 
continuing  in  the  service;   but  not  here,  where  he  had  quitted  his 

^  The  father  can  maintain  no  action  in  such  a  case:  Goodwin  v.  Thoinpson.  2 
Greene,  329;  Jones  v.  Tevis,  4  Litt.  25;  Hervey  v.  Moseley,  7  Gray,  479;  beard  v, 
Holland,  59  Miss.  161,  164;  Wilkinson  v,  Dellinffer,  126  N.  C.  462.  Unless  the 
daughter  was  induced  to  marry  the  defendant  oy  the  latter's  fraud.  Hills  v. 
Hobert,  2  Root,  48;  Goodwin  v,  Thompson,  supra. 


( 


870  EVANS  V.  WALTON  [CHAP.  VIH. 

master,  and  taken  his  chance  in  hiring  himself  to  the  defendant." 
Here  the  daughter  was  de  facto  continuing  in  the  service  of  her  father 
when  the  defendant  seduced  her  therefrom.] 

All  the  authorities  were  referred  to  in  Lumley  v.  Gye,  and  amongst 
them  Blake  v,  La'nyon;  but  in  none  of  them  was  the  action  held  to  lie 
in  the  absence  of  a  binding  contract  of  service.^ 

BoviLL,  C.  J.  The  rule  in  this  case  was  granted  principally  on  the 
contention  of  the  defendant's  coimsel  that,  in  order  to  sustain  the 
action,  it  was  necessary  to  show  that  there  was  a  binding  contract  of 
service  between  the  father  and  the  daughter.  And  for  this  proposition 
various  text-books  were  referred  to,  and  several  cases  cited,  amongst 
which  was  that  of  Sykes  v,  Dixon,  9  Ad.  &  E.  693;  1  P.  &  D.  463. 
But,  when  that  case  is  looked  at,  I  find  no  such  principle  involved  in 
the  decision.  Indeed,  in  each  of  the  cases,  from  the  form  of  the 
declaration,  it  became  necessary  to  prove  some  contract  for  service 
beyond  that  which  the  law  would  imply  from  the  relation  of  the  par- 
ties. No  authority  is  to  be  found  where  it  has  been  held  that  in  an 
action  for  enticing  away  the  plaintiff's  daughter  a  binding  contract 
of  service  must  be  alleged  and  proved.  But  there  are  abundant  au- 
thorities to  show  the  contrary.  It  is  said  that  the  case  of  seduction  is 
anomalous  in  this  respect.  There  is,  however,  no  foundation  for  that 
assertion.  In  the  case  of  an  action  for  the  seduction  of  a  daughter, 
no  proof  of  service  is  necessary  beyond  the  services  implied  from  the 
daughter's  living  in  her  father's  house  as  a  member  of  his  family.  So, 
in  the  case  of  an  action  for  assaulting  the  plaintiff's  infant  son  or 
daughter,  no  evidence  of  service  is  necessary  beyond  that  which  the 
law  will  imply  as  between  parent  and  child.  In  Barber  v.  Dennis, 
6  Mod.  69;  1  Salk.  68,  the  widow  of  a  waterman,  who,  as  was  said, 
by  the  usage  of  Waterman's  Hall,  may  take  an  apprentice,  had  her 
apprentice  taken  from  her  and  put  on  board  a  Queen's  ship,  where  he 
earned  two  tickets,  which  came  to  the  defendant's  hands,  and  for 
which  the  mistress  brought  trover.  It  was  agreed  that  the  action 
would  well  lie  if  the  apprentice  were  a  legal  apprentice,  for  his  pos- 
session would  be  that  of  his  master,  and  whatever  he  earns  shall  go 
to  his  master;  but  it  was  objected  that  the  company  of  watermen  is  a 
volimtary  society,  and  that  being  free  of  it  does  not  make  a  man  free 
of  London,  so  that  the  custom  of  London  for  persons  under  one  and 
twenty  to  bind  themselves  apprentices  does  not  extend  to  watermen; 
which  was  agreed  by  all.  Then  it  was  said  that  the  supposed  appren- 
tice here  was  no  legal  apprentice,  if  the  indentures  be  not  enrolled 
pursuant  to  the  5  Eliz.  c.  4,  and,  if  he  were  not  a  legal  apprentice,  the 
plaintiff  had  no  title.  But  Holt,  C.  J.,  said  he  would  imderstand  him 
an  apprentice  or  servant  de  facto,  and  that  would  suffice  against  them, 
being  wrong-doers.    Again,  in  Fitz.  N.  B.  91  G.  it  is  laid  down  that, 

^  A  part  of  the  argument  and  the  concurring  opinion  of  Montague  Smith,  J., 
with  wnich  Keating,  J.,  agreed,  are  emitted. 


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CHAP.  VIII.]  EVANS  V.  WALTON  871 

"  if  a  man  ought  to  have  toll  in  a  fair,  &c.,  and  his  servants  are  dis- 
turbed in  gathering  the  same,  he  shall  have  trespass  for  assault  of  his 
servants,  and  for  the  loss  of  tiheir  service,"  <fec.  To  this  is  appended  a 
note  by  Lord  Hale:  "  Trespass  for  beating  his  servants,  per  quod 
serviiium  amiait,  lies,  although  he  was  not  retained,  but  served  only  at 
will.  11  Hen.  IV.  fol.  2,  per  Hull,  accordant.  And  so  if  A.  retains  B. 
to  be  his  servant,  who  departs  into  another  county  and  serves  C,  A., 
before  any  request  or  seizure,  cannot  beat  B. ;  and,  if  he  does,  C.  shall 
have  trespass  against  him  (21  Hen.  VI.  fol.  9),  and  recover  damages, 
having  regard  to  the  loss  of  service  (22  Ass.  76) :  and  the  retainer  is 
traversable.  11  Hen.  VI.  fol.  30."  These  authorities,  and  the  prin- 
ciple upon  which  the  action  for  assaulting  a  servant  is  founded,  would 
seem  to  show  that  an  actual  binding  contract  is  not  necessary.  There 
is  no  allegation  in  this  declaration  of  a  hiring  for  any  definite  time. 
All  that  is  alleged  is,  that  the  girl  was  the  daughter  and  servant  of  the 
plaintiff.  It  cannot  be  doubted  that  the  jury  would  infer  from  the 
facts  that  the  relation  of  master  and  servant  did  exist,  without  any 
evidence  of  a  contract  for  a  definite  time;  and,  if  we  are  to  draw  in- 
ferences from  the  facts,  I  should  come  to  the  same  conclusion.  Then, 
was  that  relation  put  an  end  to  ?  The  service,  no  doubt,  was  one  which 
would  be  determinable  at  the  will  of  either  party,  as  is  said  by  Bram- 
well,  B.,  in  Thompson  v.  Ross,  5  H.  &  N.  16.  That  this  kind  of  serv- 
ice is  sufficient,  I  should  gather  from  the  language  used  by  this 
court  in  Hartley  v,  Cummings,  5  C.  B.  247,  and  particularly  from 
the  judgment  of  Maule,  J.  That  was  an  action  for  seducing  work- 
men from  the  service  of  the  plaintiff,  a  glass  and  alkali  manufacturer, 
and  harboring  them  after  notice.  It  appeared  that  one  Pike  was  in 
the  service  of  the  plaintiff,  and  the  defendant  induced  him  to  leave. 
In  giving  judgment,  Maule,  J.,  says:  "  The  objection  urged  on  the 
part  of  the  defendant  is,  that  the  agreement  entered  into  by  Pike  with 
the  plaintiff  was  one  that  gave  the  latter  no  right  to  compel  Pike  to 
serve  him,  inasmuch  as  it  was  void  either  for  want  of  mutuality  or 
because  it  was  a  contract  to  an  unreasonable  extent  operating  in  re- 
straint of  trade.  On  the  other  side,  it  was  insisted,  upon  the  authority 
of  Keane  v.  Boycott,  2  H.  Bl.  511,  that  it  is  quite  immaterial,  for  the 
purpose  of  this  action,  whether  the  agreement  was  void  or  not;  for 
that  it  is  not  competent  to  the  defendants,  who  are  wrong-doers,  to 
take  advantage  of  its  invalidity.  In  answer  to  this,  the  case  of  Sykes 
V.  Dixon,  9  Ad.  &  E.  693;  1  P.  &  D.  463,  was  cited  on  the  part  of  the 
defendants,  where  it  is  said  to  have  been  decided  by  the  Court  of 
Queen's  Bench  that  such  an  objection  may  be  set  up  by  a  third  person 
not  a  party  to  the  agreement.  It  is  unnecessary  to  say  whether  that 
case  may  not  be  distinguished  from  the  present,  —  there  being  no 
subsisting  service  that  was  interrupted  by  the  act  of  the  defendant,  — 
because  I  am  of  opinion  that  in  this  case  there  was  a  contract  between 
Hartley  and  Pike,  which  was  perfectly  valid,  notwithstanding  the  ob- 


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jections  that  have  been  urged."  Whether  or  not  there  was  a  subsisting 
service  seems  to  be  the  test.  I  think  the  jury  properly  assumed  that 
there  was  a  subsisting  service  here.  It  is  said  that  the  girl's  services 
were  not  lost  to  the  plaintiff  by  reason  of  the  defendant's  having  en- 
ticed her  away;  for  that,  inasmuch  as  she  afterwards  returned  to  her 
father's  house,  the  relation  of  master  and  servant  was  not  put  an  end 
to  by  any  act  of  the  defendant's.  I  think  however,  there  was  a  suffi- 
cient interruption  of  the  service  to  entitle  the  plaintiff  to  maintain 
the  action,  and  that  the  rule  to  enter  a  nonsuit  should  be  discharged. 
WiiiLEs,  J.  I  am  of  the  same  opinion.  I  cannot  look  at  it  as  an 
anomaly  to  hold  that  the  daughter  was  the  servant  of  her  father  at  the 
tune  the  defendant  by  his  enticement  induced  her  to  forbear  from 
rendering  to  her  father  the  services  which  were  due  to  him  from  her. 
There  is  a  series  of  cases  in  the  books,  of  which  that  in  the  Year-Book 
of  11  Hen.  IV,  fol.  2,  is  probably  the  first,  to  show  that  this  action  is 
maintainable.  This  case  was  followed  by  a  very  remarkable  one  of 
M.  22  Hen.  VI,  fol.  30,  in  which  that  doctrine  is  fully  recognized,  and 
where  service  at  will  and  service  upon  a  retainer  are  put  upon  the 
same  footing  with  regard  to  any  complaint  of  being  wrongfully  de- 
prived of  their  fruits,  and  it  is  pointed  out  that  the  writ  at  common 
law  ran,  ''  quare  un  tiel  servientem  meum  in  aeridtio  meo  existeniem 
cepit  et  abduxiij^  without  alleging  any  contract  or  retainer.  That 
runs  so  completely  with  the  earUer  case,  and  also  with  the  doctrine  of 
Lord  Denman  in  Sykes  v.  Dixon,  9  Ad.  &  E.  693,  699;  1  P.  &  D.  463, 
and  of  Maule,  J.,  in  Hartley  v.  Cummings,  6  C.  B.  247,  and  also  with 
the  observations  of  Bramwell,  B.,  in  Thompson  v,  Ross,  that  I  feel  no 
difficulty  in  holding  that,  upon  authority,  as  well  as  in  good  sense,  the 
father  of  a  family,  in  respect  of  such  servijce  as  his  daughter  renders 
him  from  her  sense  of  duty  and  filial  gratitude,  stands  in  the  same 
position  as  an  ordinary  master.  If  she  is  in  his  service,  whether  de  son 
ban  gre  or  sur  retainery  he  is  equally  entitled  to  her  services,  and  to 
maintain  an  action  against  one  who  entices  her  away.  Assuming  that 
the  service  was  at  the  will  of  both  parties,  like  a  tenancy  at  will,  the 
relation  must  be  put  an  end  to  in  some  way  before  the  rights  of  the 
master  under  it  can  be  lost.  As  a  question  of  fact,  was  the  dau^ter 
in  the  service  of  her  father  at  the  time  the  cause  of  action  arose  ?  Was 
the  relation  of  master  and  servant  put  an  end  to  by  her  quitting  her 
father's  house  by  means  of  the  false  pretence  to  which  the  defendant 
induced  her  to  resort  ?  There  was  no  proof  that  she  quitted  without 
any  intention  to  return  to  her  home.  What  pretence,  then,  was  there 
for  assuming  that  the  service  at  will  was  put  an  end  to  ?  To  use  the 
language  of  Newton,  J.,  in  the  case  of  22  Hen.  VI,  fol.  30,  it  is  no 
more  than  if  a  servant  giiould  absent  herself  for  the  purpose  of  going 
to  church  on  the  Sabbath  day.  Then,  was  the  defendant  guilty  of  any 
wrong  in  keeping  her  away  from  the  plaintiff's  service  ?  I  apprehend 
that,  where  the  relation  of  master  and  servant  exists,  any  fraud 


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CHAP.  Vin.]  EVANS  V.  WALTON  873 

whereby  the  servant  is  induced  to  absent  herself  affords  a  ground  of 
action.  Somewhat  the  same  sort  of  question  arose  in  Winsmore  v. 
Greenbank,  where,  in  an  action  on  the  case  for  inducing  the  plaintiff's 
wife  to  continue  absent,  it  was  held  to  be  sufficient  to  state  that ''  the 
defendant  imlawfuUy  and  imjustly  persuaded,  procured,  and  enticed 
the  wife  to  continue  absent,  Ac,  by  means  of  which  persuasion,  Ac, 
she  did  continue  absent,  &c.,  whereby  the  plaintiff  lost  the  comfort  and 
society  of  his  wife,"  Ac,  without  setting  forth  the  means  used  by  the 
defendant,  or  allying  that  any  adultery  had  been  conunitted.  There 
is  really  no  difficulty  when  once  the  relation  of  master  and  servant  at 
the  time  of  the  acts  complained  of  is  established.  It  was  said  that, 
inasmuch  as  none  of  the  usual  consequences,  such  as  sickness  or  the 
birth  of  a  child,  resulted  from  the  defendant's  acts,  no  action  is  main- 
tamable  for  the  mere  unproper  intercourse.  Be  it  so,  as  there  is  aa 
authority  in  favor  of  that  position;  but  that  only  removes  the  charge 
of  debauching  the  plaintiff's  daughter  out  of  the  way.  It  does  seem 
to  me  to  be  an  extraordinary  thing,  and  to  reduce  the  argument  to  an 
absurdity,  to  say  that  the  plaintiff  would  have  had  a  sufficient  cause 
of  action  against  the  defendant  if  the  daughter  had  proved  with  child 
by  him,  and  had  gone  back  to  her  father's  house  and  been  confined 
there,  and  that  the  fact  of  the  father  having  through  his  fraud  been 
deprived  of  his  daughter's  services  during  the  nine  days'  concubinage 
affords  no  groimd  of  action.  The  conclusion  I  arrive  at  is,  that  it  was 
a  question  for  the  jury  whether  at  the  time  the  daughter  left  her 
father's  house  there  was  an  existing  service  de  facto,  and  whether  by 
the  defendant's  means  and  procurement  that  service  was  denied  to  the 
plaintiff.  If  both  those  questions  were  found  against  the  defendant, 
the  plaintiff  was  clearly  entitled  to  the  verdict.  I  think  there  was 
abundant  evidence  to  support  the  finding,  and  that  the  rule  must  be 
discharged.  RvUe  discharged.^ 

^  Whether  it  is  an  excess  of  fair  competition  to  induce  a  servant  at  will  to  leave 
the  plaintiff,  and  enter  the  service  of  the  defendant,  cannot  be  said  to  be  definitely 
settled.  In  Salter  v.  Howard.  43  Ga.  601,  the  plaintiff  prevailed;  but  in  Campbeu 
V.  Cooper,  34  N.  H.  49,  the  defendant  was  successful.  The  other  cases  commonly 
cited  for  the  plaintiff  are  distinguishable.  In  Sykes  v.  Dixon.  9  A.  &  £.  693,  and 
Peters  v.  Lord,  18  Conn.  337.  the  servant  had  idrt  the  plaintiff  of  his  own  head  be- 
fore entering  the  service  of  tne  defendimt.  In  Keane  v.  Boycott.  2  H.  Bl.  512,  Uie 
defendant,  a  recruiting  officer,  officiously  induced  the  servant  to  leave  the  plaintiff, 
in  order  to  enlist  as  a  soldier.  In  Speight  v,  Oliviera,  2  Stark.  493;  ^lorgan  v. 
Molony,  7  Ir.  L.  R.  n.  b.  101, 240;  Ball  v.  Bruce,  21  Bl.  161;  and  Noice  v,  Browm 
39  N.  J.  Law,  569,  as  in  the  principal  case,  the  enticement  was  for  an  immoral 
piunpose.  In  Cox  v.  Muncey,  6  C.  B.  N.  s.  375,  a  father  induced  an  apprentice  at 
will  to  leave  the  master,  but  the  motive  of  the  father  does  not  appear. 

"  [Keane  v.  Boycott,  2  H.  Bl.  512]  seems  contrary  to  the  general  principle  and 
is  certainly  opposed  to  the  decision  of  the  Court  of  Appeals  in  DeFrancesco  v.  Bai^ 
num,  45  Ch.  D.  430.  The  defendant  there  had  enticed  away  an  apprentice  of  the 
plaintiff.  But  the  indenture  contained  unreasonable  stipulations,  and  it  was  held 
that  it  might  be  avoidedH>y  the  apprentice,  and  that  it  was  not  unlawful  for  the 
defendant  to  persuade  the  apprentice  to  do  that  which  was  lawful.  It  is  different, 
however,  if  malice,  force  or  rniud  be  used  to  take  or  decoy  the  servant  away.  In 
that  case  the  mastcx  has  a  right  of  action,  even  though  the  servant  be  under  no 


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LUMLEY  V.  GYE 

In  the  Queen's  Bench,  Tbinity  Tbbm,  1853. 
Reported  in  2  EJUs  &  Blackburn,  216. 

Crompton,  J.^  The  declaration  in  this  case  consisted  of  three 
counts.  The  two  first  stated  a  contract  between  the  plaintiff,  the  pro- 
prietor of  the  Queen's  Theatre,  and  Miss  Wagner,  for  the  performance 
by  her  for  a  period  of  three  months  at  the  plaintiff's  theatre;  and  it 
then  stated  that  the  defendant,  knowing  the  premises  and  with  a 
maUcious  intention,  whilst  the  agreement  was  in  full  force,  and  before 
the  expiration  of  tiie  period  for  which  Miss  Wagner  was  engaged, 
wrongfully  and  maUciously  enticed  and  procured  Miss  Wagner  to 
refuse  to  sing  or  perform  at  the  theatre,  and  to  depart  from  and  aban- 
don her  contract  with  the  plaintiff  and  all  service  thereimder,  whereby 
Miss  Wagner  wrongfully,  during  the  full  period  of  the  engagement, 
refused  and  made  default  in  performing  at  the  theatre;  and  special 
damage  arising  from  the  breach  of  Miss  Wagner's  engagement  was 
then  stated.  The  third  count  stated  that  Miss  Wagner  had  been  hired 
and  engaged  by  the  plaintiff,  then  being  the  owner  of  her  Majesty's 
Theatre,  to  perform  at  the  said  theatre  for  a  certain  specified  period 
as  the  dramatic  artiste  of  the  plaintiff  for  reward  to  her  in  that  behalf, 
and  had  become  and  was  such  dramatic  artiste  for  the  plaintiff  at  his 
said  theatre  for  profit  to  the  plaintiff  in  that  behalf;  and  that  the 
defendant,  well  Imowing  the  premises  and  with  a  maUcious  intention, 
whilst  Miss  Wagner  was  such  artiste  of  the  plaintiff,  wrongfully  and 
maUciously  enticed  and  procured  her,  so  being  such  artiste  of  the 
plaintiff,  to  depart  from  and  out  of  the  said  employment  of  the  plain- 
tiff, whereby  she  wrongfully  departed  from  and  out  of  the  said  service 
and  employment  of  the  plaintiff,  and  remained  and  continued  absent 
from  such  service  and  employment  until  the  expiration  of  hex  said 
hiring  and  engagement  to  the  plaintiff  by  efiOiuxion  of  time;  and 
special  damage  arising  from  the  breach  of  Miss  Wagner's  engagement 
was  then  stated.  To  this  declaration  the  defendant  demurred;  and 
the  question  for  our  decision  is,  Whether  aU  or  any  of  the  counts  are 
good  in  substance  7 

The  effect  of  the  two  first  counts  is,  that  a  person,  under  a  binding 
contract  to  perform  at  a  theatre,  is  induced  by  the  malicious  act  of 
the  defendant  to  refuse  to  perform  and  entirely  to  abandon  her  con- 
tract; whereby  damage  arises  to  the  plaintiff,  the  proprietor  of  the 

binding  obligation.  Per  TTiHw,  J.,  Evans  v.  Walton,  L.  R.  2  Com.  PL,  pp.  621- 
622."    Clerk  and  Lindsell,  Torts,  6  ed.  227. 

To  induce  a  servant  who  is  unaer  contract  with  the  plaintiff  to  leave  the  latter 
at  the  expiration  of  the  term  of  service,  and  to  enter  the  defendant's  service,  is  no 
more  th^  lawful  competition.  Nichol  v.  Martyn,  2  Esp.  732;  Boston  Manu- 
factory v.  Binney,  4  Pick.  425. 

^  The  statement  of  the  case  and  the  arguments  of  counsel  are  omitted. 


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theatre.  The  third  count  differs,  in  stating  expressly  that  the  per- 
former had  agreed  to  perform  as  the  dramatic  artiste  of  the  plain- 
tiff, and  had  become  and  was  the  dramatic  artiste  of  the  plaintiff  for 
reward  to  her;  and  that  the  defendant  maUciously  procured  her  to 
depart  out  of  the  employment  of  the  plaintiff  as  such  dramatic  artiste; 
whereby  she  did  depart  out  of  the  employment  and  service  of  the 
plaintiff;  whereby  damage  was  suffered  by  the  plaintiff.  It  war .  aid, 
in  support  of  the  demurrer,  that  it  did  not  appear  in  the  declaration 
that  the  relation  of  master  and  servant  ever  subsisted  between  the 
plaintiff  and  Miss  Wagner;  that  Miss  Wagner  was  not  averred,  es- 
pecially in  the  two  first  counts,  to  have  entered  upon  the  service  of 
the  plaintiff;  and  that  the  engagement  of  a  theatrical  performer,  even 
if  the  performer  has  entered  upon  the  duties,  is  not  of  such  a  nature 
as  to  make  the  performer  a  servant,  within  the  rule  of  law  which  gives 
an  action  to  the  master  for  the  wrongful  enticing  away  of  his  servant. 
And  it  was  laid  down  broadly,  as  a  general  proposition  of  law,  that  no 
action  will  he  for  procuring  a  person  to  break  a  contract,  although 
such  procuring  is  with  a  maUcious  intention  and  causes  great  and 
immediate  injury.  And  the  law  as  to  enticing  servants  was  said  to  be 
contrary  to  the  general  rule  and  principle  of  law,  and  to  be  anomalous, 
and  probably  to  have  had  its  origin  from  the  state  of  society  when 
serfdom  existed,  and  to  be  founded  upon,  or  upon  the  equity  of,  the 
Statute  of  Laborers.  It  was  said  that  it  would  be  dangerous  to  hold 
that  an  action  was  maintainable  for  persuading  a  third  party  to  break 
a  contract,  unless  some  boundary  or  limits  could  be  pointed  out;  and 
that  the  remedy  for  enticing  away  servants  was  confined  to  cases 
where  the  relation  of  master  and  servant,  in  a  strict  sense,  subsisted 
between  the  parties;  and  that,  in  all  other  cases  of  contract,  the  only 
remedy  was  against  the  party  breaking  the  contract. 

Whatever  may  have  been  the  origin  or  foundation  of  the  law  as  to 
enticing  of  servants,  and  whether  it  be,  as  contended  by  the  plaintiff, 
an  instance  and  branch  of  a  wider  rule,  or  whether  it  be,  as  contended 
by  the  defendant,  an  anomaly  and  an  exception  from  the  general  rule 
of  law  on  such  subjects,  it  must  now  be  considered  clear  law  that  a  per- 
son who  wrongfully  and  maliciously,  or,  which  is  the  same  thing,  with 
notice,  interrupts  the  relation  subsisting  between  master  and  servant 
by  prociuing  the  servant  to  depart  from  the  master's  service,  or  by 
harboring  and  keeping  him  as  servant  after  he  has  quitted  it  and  dur- 
ing the  time  stipulated  for  as  the  period  of  service,  whereby  the  master 
is  injured,  conmxits  a  wrongful  act  for  which  he  is  responsible  at  law.  I 
think  that  the  rule  appUes  wherever  the  wrongful  interruption  oper- 
ates to  prevent  the  service  during  the  time  for  which  the  parties  have 
contracted  that  the  service  shall  continue;  and  I  think  that  the  rela- 
tion of  master  and  servant  subsists,  sufficiently  for  the  purpose  of  such 
action,  during  the  time  for  which  there  is  in  existence  a  binding  con- 
tract of  hiring  and  service  between  the  parties;  and  I  think  that  it  is 


( 


a  fanciful  and  technical  and  unjust  distinction  to  say  that  the  not 
having  actually  entered  into  the  service,  or  that  the  service  not  actu- 
ally continuing,  can  make  any  difference.  The  wrong  and  injury  are 
surely  the  same,  whether  the  wrong-doer  entices  away  the  gardener, 
who  has  hired  himself  for  a  year,  the  night  before  he  is  to  go  to  his 
work,  or  after  he  has  planted  the  first  cabbage  on  the  first  morning  of 
his  service;  and  I  should  be  sorry  to  support  a  distinction  so  unjust, 
and  so  repugnant  to  conmion  sense,  unless  bound  to  do  so  by  some 
rule  or  authority  of  law  plainly  showing  that  such  distinction 
exists.  .  .  .^ 

. .  The  objection  as  to  the  actual  employment  not  having  commenced 
would  not  apply  in  the  present  case  to  the  third  count,  which  states 
that  Miss  Wagner  had  become  the  artiste  of  the  plaintiff,  and  that  the 
d^endant  had  induced  her  to  depart  from  the  employment.  But  it  was 
further  said  that  the  engag^nent,  employment  or  service,  in  the  pres- 
*  ent  case,  was  not  of  such  a  nature  as  to  constitute  the  relation  of  mas- 
ter and  servant,  so  as  to  warrant  the  application  of  the  usual  rule  of 
law  giving  a  ronedy  in  case  of  enticing  away  servants.  The  nature  of 
the  injury  and  of  the  damage  being  the  same,  and  the  supposed  right 
of  action  being  in  strict  analogy  to  the  ordinary  case  of  master  and 
servant,  I  see  no  reason  for  confining  the  case  to  services  or  engage- 
ments imder  contracts  for  services  of  any  particular  description;  and 
I  think  that  the  remedy,  in  the  absence  of  any  legal  reason  to  the  con- 
trary, may  well  apply  to  all  cases  where  there  is  an  imlawful  and  mali- 
cious enticing  away  of  any  person  employed  to  give  his  personal  labor 
or  service  for  a  given  time  under  the  direction  of  a  master  or  employer 
who  is  injured  by  the  wrongful  act;  more  especially  when  the  party  is 
bound  to  give  sudi  personal  services  exclusively  to  the  master  or 
employer;  thou^  I  by  no  means  say  that  the  service  need  be  ex- 
dusive.  .  .  .* 

In  deciding  this  case  on  the  narrower  groimd,  I  wish  by  no  means  ta 
be  considered  as  deciding  that  the  larger  groimd  taken  by  Mr.  CowUng 
is  not  tenable,  or  as  saying  that  in  no  case  except  that  of  master  and 
servant  is  an  action  maintainable  for  malicioualy  inducing  another  to 
break  a  contract  to  the  injury  of  the  person  with  whom  such  contract 
has  been  made.  It  does  not  appear  to  me  to  be  a  sound  answer,  to 
say  that  the  act  in  such  cases  is  the  act  of  the  party  who  breaks  the 
contract;  for  that  reason  would  apply  in  the  acknowledged  case  of 
master  and  servant.  Nor  is  it  an  answer,  to  say  that  there  is  a  rranedy 
against  the  contractor,  and  that  the  party  relies  on  the  contract;  for, 
besides  that  reason  also  applying  to  the  case  of  master  and  servant,  the 
action  on  the  contract  and  the  action  against  the  malicious  wrong-doer 
may  be  for  a  different  matter;  and  the  damages  occasioned  by  such 
malicious  injury  mi^t  be  calculated  on  a  very  different  principle  from 

'  The  learned  judge  here  discussed  and  approved  of  Blake  v,  Lauyon,  6  T.  R. 
221. 

'  The  rest  of  the  opinion  on  this  point  is  omitted. 


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the  amount  of  the  debt  which  might  be  the  only  sum  recoverable  on 
the  contract.  Suppose  a  trader,  wiOi  a  maUciou^  intent  to  ruin  a 
rival  trader y  goes  to  a  banker  or  other  party  who  owes  money  to  his 
rival,  and  begs  him  not  to  pay  the  money  which  he  owes  him,  and  by 
that  means  ruins  or  greatly  prejudices  the4>arty:  I  am  by  no  means 
prepared  to  say  that  an  action  could  not  be  maintained,  and  that  dam- 
ages, beyond  tiie  amount  of  the  debt  if  the  injury  were  great,  or  much 
less  than  such  amount  if  the  injury  were  less  serious,  might  not  be 
recovered.  Where  two  or  more  parties  were  concerned  in  inflicting 
such  injury,  an  indictment,  or  a  writ  of  conspiracy  at  conmion  law, 
might  peAaps  have  been  maintainable;  and,  where  a  writ  of  con- 
spiracy would  lie  for  an  injury  inflicted  by  two,  an  action  on  the  case 
in  the  nature  of  conspiracy  will  generally  he;  and  in  such  action  on 
the  case  the  plaintiff  is  entitled  to  recover  against  one  defendant  with- 
out proof  of  any  conspiracy,  the  malicious  injury  and  not  the  con- 
spiracy being  the  gist  of  the  action.^  In  this  class  of  cases  it  must  be 
assumed  that  it  is  the  malicious  act  of  the  defendant,  and  that  mali- 
cious act  only,  which  causes  the  servant  or  contractor  not  to  perform 
the  work  or  contract  which  he  would  otherwise  have  done.  The  serv- 
ant or  contractor  may  be  utterly  tmable  to  pay  anything  like  the 
amount  of  the  damage  sustained  entirely  from  the  wrongful  act  of 
the  defendant;  and  it  would  seem  unjust,  and  contrary  to  the  general 
principles  of  law,  if  such  wrong-doer  were  not  responsible  for  the 
damage  caused  1^  his  wrongful  and  maUcious  act.  Several  of  the 
eases  cited  by  Mr.  Cowling  on  this  part  of  the  case  seem  well  worthy 
of  attention. 

Without  however  deciding  any  such  more  general  question,  I  think 
that  we  are  justified  in  applying  the  principle  of  the  action  for  enticing 
away  servants  to  a  case  where  the  defendant  malicioualy  procures  a 
party,  who  is  under  a  valid  contract  to  give  her  exclusive  personal 
services  to  the  plaintiff  for  a  specified  period,  to  refuse  to  give  such 
services  during  the  period  for  which  she  had  so  contradedf  whereby 
the  plaintiff  was  injured. 

I  think,  therefore,  that  our  judgment  should  be  for  the  plaintiff. 

Eble,  J.  The  question  raised  upon  this  demurrer  is,  ^Whether  an 
action  will  lie  by  the  proprietor  of  a  theatre  against  a  person  who 
maliciously  procures  an  entire  abandonment  of  a  contract  to  perform 
exclusively  at  that  theatre  for  a  certain  time;  whereby  damage  was 
sustained  ?  And  it  seems  to  me  that  it  will.  The  authorities  are 
numerous  and  uniform,  that  an  action  will  lie  by  a  master  against  a 
person  who  procures  that  a  servant  should  unlawfully  leave  his  serv- 
ice. The  principle  involved  in  these  cases  comprises  the  present;  for 
there,  the  right  of  action  in  the  master  arises  from  the  wrongful  act 
of  the  defendant  in  procuring  that  the  person  hired  should  break  his 
contract,  by  putting  an  end  to  the  relation  of  employer  and  employed; 

^  See  note  (4)  to  Skinner  v.  Gunton,  1  Wms.  Saund.  230.  —  Reporter's  note. 


r 


878  LXJMLBT  V.  GTE  [CHAP.  VIH. 

and  the  present  case  is  the  same.  If  it  is  objected  that  this  class  of 
actions  for  procuring  a  breach  of  contract  of  hiring  rests  upon  no 
principle,  and  ought  not  to  be  extended  beyond  the  cases  heretofore 
decid^,  and  that,  as  those  have  related  to  contracts  respecting  trade, 
manufactures,  or  household  service,  and  not  to  performance  at  a 
theatre,  therefore  they  are  no  authority  for  an  action  in  respect  of  a 
contract  for  such  performance;  the  answer  appears  to  me  to  be,  that 
the  class  of  cases  referred  to  rests  upon  the  principle  that  the  procure- 
ment of  the  violation  of  the  right  is  a  cause  of  action,  and  that,  when 
this  principle  is  applied  to  a  violation  of  a  right  arising  upon  a  con- 
tract of  hiring,  the  nature  of  the  service  contracted  for  is  inunaterial. 
It  is  clear  that  the  procurement  of  the  violation  of  a  right  is  a  cause 
of  action  in  all  instances  where  the  violation  is  an  actionable  wrong, 
as  in  violations  of  a  right  to  property,  whether  real  or  personal,  or  to 
personal  security;  he  who  procures  the  wrong  is  a  joint  wrong-doer, 
and  may  be  sued,  either  alone  or  jointly  with  the  agent,  in  the  appro- 
priate action  for  the  wrong  complained  of.  Where  a  right  to  the  per- 
formance of  a  contract  has  been  violated  by  a  breach  thereof,  the 
remedy  is  upon  the  contract  against  the  contracting  party;  and,  if 
he  is  made  to  indemnify  for  such  breach,  no  further  recourse  is  al- 
lowed; and,  as  in  case  of  the  procurement  of  a  breach  of  contract  the 
action  is  for  a  wrong  and  cannot  be  joined  with  the  action  on  the  con- 
tract, and  as  the  act  itself  is  not  likely  to  be  of  frequent  occurrence 
nor  easy  of  proof,  therefore  the  actions  for  this  wrong,  in  respect  of 
other  contracts  than  those  of  hiring,  are  not  numerous;  but  still  they 
seem  to  me  sufficient  to  show  that  the  principle  has  been  recognized. 
In  Winsmore  v.  Greenbank  it  was  decided  that  the  procuring  of  a 
breach  of  the  contract  of  a  wife  is  a  cause  of  action.  The  only  dis- 
tinction in  principle  between  this  case  and  other  cases  of  contracts  is, 
that  the  wife  is  not  liable  to  be  sued;  but  the  judgment  rests  on  no 
such  grounds;  the  procuring  a  violation  of  the  plaintiff's  right  under 
the  marriage  contract  is  held  to  be  an  actionable  wrong.  In  Green  v. 
Button,  2  C.  M.  &  R.  707,  it  was  decided  that  the  procuring  a  breach 
of  a  contract  of  sale  of  goods  by  a  false  claim  of  lien  is  an  actionable 
wrong.  Sheperd  v.  Wakeman,  1  Sid.  79,  is  to  the  same  effect,  where 
.  the  defendant  procured  a  breach  of  a  contract  of  marriage  by  asserting 
that  the  woman  was  already  married.  In  Ashley  v.  Harrison,  1 
Peake's  N.  P.  C.  194;  s.  c.  1  Esp.  N.  P.  C.  48,  and  in  Taylor  v.  Neri, 
1  Esp.  N.  P.  C.  386,  it  was  properly  decided  that  the  action  did  not 
lie,  because  the  battery,  in  the  first  case,  and  the  libel,  in  the  second 
case,  upon  the  contracting  parties  were  not  shown  to  be  with  intent 
to  cause  those  persons  to  break  their  contracts,  and  so  the  defendants 
by  their  wrongful  acts  did  not  procure  the  breaches  of  contract  which 
were  complained  of.  If  they  had  so  acted  for  the  purpose  of  procuring 
those  breaches,  it  seems  to  me  they  would  have  been  liable  to  the 
plaintiffs.    To  these  decisions,  foimded  on  the  principle  now  relied 


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CHAP.  Vni.]  LUMLEY  V.  GYE  879 

upon,  the  cases  for  procuring  breaches  of  contracts  of  hiring  should 
be  added;  at  least  Lord  Mansfield's  judgment  in  Bird  v.  Randall,  3 
Burr.  1345,  is  to  that  effect.  This  principle  is  supported  by  good 
reason.  He  who  maliciously  procures  a  damage  to  another  by  viola- 
tion of  his  right  ought  to  be  made  to  indemnify;  and  that,  whether  he 
procures  an  actionable  wrong  or  a  breach  of  contract.  He  who  pro- 
cures the  non-delivery  of  goods  according  to  contract  may  inflict  an 
injury,  the  same  as  he  who  procures  the  abstraction  of  goods  after 
delivery;  and  both  ought  on  the  same  ground  to  be  made  responsible. 
The  remedy  on  the  contract  may  be  inadequate,  as  where  the  measure 
of  damages  is  restricted;  or  in  the  case  of  non-payment  of  a  debt 
where  the  damage  may  be  bankruptcy  to  the  creditor  who  is  disap- 
pointed, but  the  measure  of  damages  against  the  debtor  is  interest 
only;  or,  in  the  case  of  the  non-deUvery  of  the  goods,  the  disappoint- 
ment may  lead  to  a  heavy  forfeiture  under  a  contract  to  complete  a 
work  within  a  time,  but  the  measure  of  damages  against  the  vendor  of 
the  goods  for  non-delivery  may  be  only  the  difference  between  the 
contract  price  and  the  market  value  of  the  goods  in  question  at  the 
time  of  the  breach.  In  subh  cases,  he  who  procures  the  damage  maU- 
ciously  plight  justly  be  made  responsible  beyond  the  liability  of  the 
contractor. 

With  respect  to  the  objection  that  the  contracting  party  had  not 
begun  the  performance  of  the  contract,  I  do  not  think  it  a  tenable 
ground  of  defence.  The  procurement  of  the  breach  of  the  contract 
may  be  equally  injurious,  whether  the  service  has  begun  or  not,  and 
in  my  judgment  ought  to  be  equally  actionable,  as  the  relation  of 
employer  and  employed  is  constituted  by  the  contract  alone,  and  no 
act  of  service  is  necessary  thereto. 

The  result  is  that  there  ought  to  be,  in  my  opinion,  judgment  for 
the  plaintiff. 

[The  concurring  opinion  of  WiGHTSiAN,  J.,  is  omitted.] 

Coleridge,  J.  It  may  simplify  what  I  have  to  say,  if  I  first  state 
what  are  the  conclusions  which  I  seek  to  establish.  They  are  these: 
that  in  respect  of  breach  of  contract  the  general  rule  of  our  law  is  to 
confine  its  remedies  by  action  to  the  contracting  parties,  and  to  dam- 
ages directly  and  proximately  consequential  on  the  act  of  him  who  is 
sued;  ^  that,  as  between  master  and  servant,  there  is  an  admitted 
exception;  that  this  exception  dates  from  the  Statute  of  Laborers,  23 
Edw.  III.,  and  both  on  principle  and  according  to  authority  is  limited 
by  it.  If  I  am  right  in  these  positions,  the  conclusion  will  be  for  the 
defendant,  because  enough  appears  on  this  record  to  show,  as  to  the 
first,  that  he,  and,  as  to  the  second,  that  Johanna  Wagner,  is  not 
within  the  lincdts  so  drawn. 

'  Only  the  opinion  of  Coleridge,  J.,  on  this  point  is  ^ven.  It  is  now  g;enera]ly 
admitted  that  this  learned  judge,  although  wrong  on  this  point,  was  right  in  main* 
taining  that  the  actress  was  not  a  servant, 


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First,  then,  that  the  remedy  for  breach  of  contract  is  by  the  general 
rule  of  our  law  confined  to  the  contracting  parties.  I  need  not  aigue 
that,  if  there  be  any  remedy  by  action  against  a  stranger,  it  must  be  by 
action  on  the  case.  Now,  to  found  this,  there  must  be  both  injury  in 
the  strict  sense  of  the  word  (that  is  a  wrong  done),  and  loss  resulting 
from  that  injury:  the  injury  or  wrong  done  must  be  the  act  of  the 
defendant ;  and  the  loss  must  be  a  direct  and  natural,  not  a  remote  and 
indirect  consequence  of  the  defendant's  act.  Unless  there  be  a  loss 
thus  directly  and  proximately  connected  with  th6  act,  the  mere  inten- 
tion, or  even  the  endeavor,  to  produce  it  will  not  found  the  action. 
The  existence  of  the  intention,  that  is  the  malice,  will  in  some  cases  be 
an  essential  ingredient  in  order  to  constitute  the  wrongfulness  or  in- 
jurious nature  of  the  act;  but  it  will  neither  supply  the  want  of  the 
act  itself,  or  its  hurtful  consequences:  however  complete  the  irytirta, 
and  whether  with  malice  or  without,  if  the  act  be  after  all  sine  damno, 
no  action  on  the  case  will  lie.  The  distinction  between  civil  and 
criminal  proceedings  in  this  respect  is  clear  and  material;  and  a 
recollection  of  the  different  objects  of  the  two  will  dispose  of  any 
argument  f  oimded  merely  on  the  all^ation  of  malice  in  this  dedara- 
iion,  if  I  shall  be  found  right  in  thinking  that  the  defendant's  act  has 
not  been  the  direct  or  proximate  cause  of  the  damage  which  the  plain- 
tiff alleges  he  has  sustained.  If  a  contract  has  been  made  between  A. 
and  B.  that  the  latter  should  go  supercargo  for  the  former  on  a  voy- 
age to  China,  and  C,  however  maHciously,  persuades  B.  to  break  his 
contract,  but  in  vain,  no  one,  I  suppose,  would  contend  that  any  action 
would  lie  against  C.  On  the  other  hand,  suppose  a  contract  of  the 
same  kind  made  between  the  same  parties  to  go  to  Sierra  Leone,  and 
C.  urgently  and  bona  fide  advises  B.  to  abandon  his  contract,  which 
on  consideration  B.  does,  whereby  loss  results  to  A.;  I  think  no  one 
will  be  found  bold  enough  to  maintain  that  an  action  would  he  against 
C.  In  the  first  case  no  loss  has  resulted;  the  malice  has  been  in- 
effectual; in  the  second,  though  a  loss  has  resulted  from  the  act,  that 
act  was  not  C.'s,  but  entirely  and  exclusively  B.'s  own.  If  so,  let 
malice  be  added,  and  let  C.  have  persuaded,  not  bona  fide  but  maiafide 
and  maliciously,  still,  all  other  circumstances  remaining  the  same,  the 
same  reason  applies;  for  it  is  malitia  sine  damno,  if  the  hmiiul  act  is 
entirely  and  exclusively  B.'s,  which  last  circumstance  cannot  be  af- 
fected by  the  presence  or  absence  of  malice  in  C.  Thus  far  I  do  not 
apprehend  much  difference  of  opinion:  there  would  be  sudi  a  mani- 
fest absurdity  in  attempting  to  trace  up  the  act  of  a  free  agent  break- 
ing a  contract  to  all  the  advisers  who  may  have  influenced  his  mind, 
more  or  less  honestly,  more  or  less  powerfully,  and  to  make  them  re- 
sponsible civilly  for  the  consequences  of  what  after  all  is  his  own  act, 
and  for  the  whole  of  the  hurtful  consequences  of  which  the  law  makes 
liim  directly  and  fully  responsible,  that  I  believe  it  will  never  be  con- 
tended for  seriously.    This  was  the  principle  on  which  Lord  Kenyon 


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proceeded  in  Ashley  v.  Harrison,  1  Peake's  N.  P.  C.  194;  s.  c.  1  Esp. 
N.  P.  C.  48.  There  the  defendant  Ubelled  Madame  Mara;  the  plaintiff 
alleged  that,  in  consequence,  she,  from  apprehension  of  being  hissed 
and  ill-treated,  forbore  to  sing  for  him,  though  engaged,  whereby  he 
lost  great  profits.  Lord  Kenyon  nonsuited  the  plaintiff:  he  thought 
the  defendant's  act  too  remote  from  the  damage  assigned.  But  it  will 
be  said  that  this  declaration  charges  more  than  is  stated  in  the  case 
last  supposed,  because  it  alleges,  not  merely  a  persuasion  or  enticement, 
but  a  procuring.  In  Winsmore  v.  Greenbank  the  same  word  was 
used  in  the  first  count  of  the  declaration,  which  alone  is  material  to 
the  present  case;  and  the  Chief  Justice,  who  relied  on  it,  and  distin- 
guished it  from  enticing,  defined  it  to  mean  "  persuading  with  effect;  " 
and  he  held  that  the  husband  might  sue  a  stranger  for  persuading  with 
effect  his  wife  to  do  a  wrongful  act  directly  hurtful  to  himself.  Al- 
though I  should  hesitate  to  be  bound  by  every  word  of  the  judgment, 
yet  I  am  not  called  on  to  question  this  definition  or  the  decision  of  the 
case.  Persuading  with  effect,  or  effectually  or  successfully  persuad- 
ing, may  no  doubt  sometimes  be  actionable  —  as  in  trespass  —  even 
where  it  is  used  towards  a  free  agent;  the  maxims,  quifacU  per  alium 
facit  per  «6,  and  respondeat  superior ,  are  unquestionable;  but,  where 
they  apply,  the  wrongful  act  done  is  properly  charged  to  be  the  act  of 
him  who  has  procured  it  to  be  done.  He  is  sued  as  a  principal  tres- 
passer, and  the  damage,  if  proved,  flows  directly  and  immediately 
from  his  act,  though  it  was  the  hand  of  another,  and  he  a  free  agent, 
that  was  employed.  But,  when  you  apply  the  term  of  effectual  per- 
suasion to  the  breach  of  a  contract,  it  has  obviously  a  different  mean- 
ing; the  persuader  has  not  broken  and  could  not  break  the  contract, 
for  he  had  never  entered  into  any;  he  cannot  be  sued  upon  the  con- 
tract; and  yet  it  is  the  breach  of  the  contract  only  that  is  the  cause  of 
damage:  Neither  can  it  be  said  that  in  breaking  the  contract  the  con- 
tractor is  the  agent  of  him  who  procures  him  to  do  so;  it  is  still  his 
own  act;  he  is  principal  in  so  doing,  and  is  the  only  principal.  This 
answer  may  seem  technical;  but  it  really  goes  to  the  root  of  the  mat- 
ter. It  shows  that  the  procurer  has  not  done  the  hiuiiful  act;  what 
he  has  done  is  too  rranote  from  the  damage  to  make  him  answerable 
for  it.  The  case  itself  of  Winsmore  v.  Greenbank  seems  to  me  to  have 
Uttle  or  no  bearing  on  the  present:  a  wife  is  not,  as  regards  her  hus- 
band, a  free  agent  or  separate  person;  if  to  be  considered  so  for  the 
present  purpose,  she  is  rather  in  the  character  of  a  servant,  with  this 
important  peculiarity,  that,  if  she  be  induced  to  withdraw  from  his 
society  and  cohabit  with  another  or  do  him  any  wrong,  no  action  is 
maintainable  by  him  against  her.  In  the  case  of  criminal  conversation, 
trespass  lies  against  the  adulterer  as  for  an  assault  on  her,  however 
she  may  in  fact  have  been  a  willing  party  to  all  that  the  defendant 
had  done.  No  doubt,  therefore,  effectual  persuasion  to  the  wife  to 
withdraw  and  conceal  herself  from  her  husband  is  in  the  eye  of  the 


f 


law  an  actual  withdrawing  and  concealing  her;  and  so,  in  other  counts 
of  the  declaration,  was  it  charged  in  this  very  case  of  Winsmore  v. 
Greenbank.  A  case  explainable  and  explained  on  the  same  principle 
is  that  of  ravishment  of  ward.  The  writ  for  this  lay  against  one  who 
procured  a  man's  ward  to  depart  from  him ;  and,  where  this  was  urged 
in  a  case  hereafter  to  be  cited  (Mich.  11  H.  4,  fol.  23  A.  pi.  46,  2  E. 
&  B.  255),  Judge  Hankford  ^  gives  the  answer:  the  reason  is,  he  sa3rs, 
because  the  ward  is  a  chattel,  and  vests  in  him  who  has  the  right. 
None  of  this  reasoning  applies  to  the  case  of  a  breach  of  contract;  if 
it  does,  I  should  be  glad  to  know  how  any  treatise  on  the  law  of  con- 
tract could  be  complete  without  a  chapter  on  this  head,  or  how  it 
happens  that  we  have  no  decisions  upon  it.  Certainly  no  subject  could 
well  be  more  fruitful  or  important;  important  contracts  are  more 
commonly  broken  with  than  without  persuaders  or  procurers,  and 
these  often  responsible  persons  when  the  principals  may  not  be  so.  I 
am  aware  that  with  respect  to  an  action  on  tJie  case  the  argument 
prinuB  impressionis  is  sometimes  of  no  weight.  If  the  circumstances 
under  which  the  action  would  be  brought  have  not  before  arisen,  or 
are  of  rare  occurrence,  it  will  be  of  none,  or  only  of  inconsiderable 
weight;  but,  if  the  circumstances  have  been  conmion,  if  there  has 
been  frequently  occasion  for  the  action,  I  apprehend  it  is  important  to 
find  that  the  action  has  yet  never  been  tried.  Now  we  find  a  plentiful 
supply  both  of  text  and  decision  in  the  case  of  seduction  of  servants; 
and  what  inference  does  this  lead  to,  contrasted  with  the  silence  of  the 
books  and  the  absence  of  decisions  on  the  case  of  breach  of  ordinary 
contracts  ?  Let  this  too  be  considered :  that,  if  by  the  common  law  it 
was  actionable  effectually  to  persuade  another  to  break  his  contract  to 
the  damage  of  the  contractor,  it  would  seem  on  principle  to  be  equally 
so  to  uphold  him,  after  the  breach,  in  continuing  it.  Now  upon  this 
the  two  conflicting  cases  of  Adams  v.  Bafeald,  1  Leon.  240,  and  Blake 
V.  Lanyon,  6  T.  R.  221,  are  worth  considering.  In  the  first,  two 
judges  against  one  decided  that  an  action  does  not  he  for  retaining 
the  servant  of  another,  unless  the  defendant  has  first  procured  the 
servant  to  leave  his  master;  in  the  second,  this  was  overruled;  and, 
although  it  was  taken  as  a  fact  that  the  defendant  had  hired  the  serv- 
ant in  ignorance  and,  as  soon  as  he  knew  that  he  had  left  his  former 
master  with  work  unfinished,  requested  him  to  return,  which  we  must 
understand  to  have  been  a  real,  earnest  request,  and  only  continued 
him  after  his  refusal,  which  we  must  take  to  have  been  his  independent 
refusal,  it  was  held  that  the  action  lay;  and  this  reason  is  given: 
"  The  very  act  of  giving  him  employment  is  affording  him  the  means 
of  keeping  out  of  his  former  service.''  Would  the  judges  who  laid 
this  down  have  held  it  actionable  to  give  a  stray  servant  food  or  cloth- 
ing or  lodging  out  of  charity  ?    Yet  these  would  have  been  equally 

1  William  Hankford,  Justice  of  the  Common  Pleas  in  1398,  afterwards,  in  1414 
(1  H.  5),  Chief  Justice  of  England.  —  Reporter's  note. 


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means  of  keeping  him  out  of  his  former  service.  The  true  ground  on 
which  this  action  was  maintainable,  if  at  all,  was  the  Statute  of 
Laborers,  to  which  no  reference  was  made.  But  I  mention  this  case 
now  as  lowing  how  far  courts  of  justice  may  be  led  if  they  allow 
themselves,  in  the  pursuit  of  perfectly  complete  remedies  for  all 
wrongful  acts,  to  transgress  the  bounds  which  our  law,  in  a  wise 
consciousness  as  I  conceive  of  its  limited  powers,  has  imposed  on  itself, 
of  redressing  only  the  proximate  and  direct  consequences  of  wrongful 
acts.  To  draw  a  line  between  advice,  persuasion,  enticement  and  pro- 
curement is  practically  impossible  in  a  court  of  justice;  who  shall  say 
how  much  of  a  free  agent's  resolution  flows  from  the  interference  of 
other  minds,  or  the  independent  resolution  of  his  own  ?  This  is  a  mat- 
ter for  the  casuist  rather  than  the  jmist;  still  less  is  it  for  the  jury- 
man. Again,  why  draw  the  line  between  bad  and  good  faith  ?  If 
advice  given  mala  fide,  and  loss  sustained,  entitle  me  to  damages,  why, 
though  the  advice  be  given  honestly,  but  imder  wrong  information, 
with  a  loss  sustained,  am  I  not  entitled  to  them  ?  According  to  all 
legal  analogies  the  bona  fides  of  him  who,  by  a  conscious  wilful  act, 
directly  injures  me  will  not  reUeve  him  from  the  obUgation  to  com- 
pensate me  in  damages  for  my  loss.  Again,  where  several  persons 
happen  to  persuade  to  the  same  effect,  and  in  the  result  the  party 
persuaded  acts  upon  the  advice,  how  is  it  to  be  determined  against 
whom  the  action  may  be  brought,  whether  they  are  to  be  sued  jointly 
or  severally,  in  what  proportions  damages  are  to  be  recovered  ?  Again, 
if,  instead  of  limiting  our  recourse  to  the  agent,  actual  or  construc- 
tive, we  will  go  back  to  the  person  who  inunediately  persuades  or  pro- 
cures him  one  step,  why  are  we  stop  there  ?  The  first  mover,  and  the 
maUcious  mover  too,  may  be  removed  several  steps  backward  from 
the  party  actually  induced  to  break  the  contract;  why  are  we  not  to 
trace  him  out  ?  Morally  he  may  be  the  most  guilty.  I  adopt  the 
arguments  of  Lord  Abinger  and  my  brother  Alderson  in  the  case  of 
Winterbottom  v,  Wright,  10  M.  &  W.  109;  if  we  go  the  first  step,  we 
can  show  no  good  reason  for  not  going  fifty.  And,  again,  I  ask  how 
is  it  that,  if  the  law  really  be  as  the  plaintiff  contends,  we  have  no 
discussions  upon  such  questions  as  these  in  our  books,  no  decisions  in 
our  reports  ?  Surely  such  cases  would  not  have  been  of  rare  occur- 
rence; they  are  not  of  sUght  importance,  and  could  hardly  have  been 
decided  without  reference  to  the  Courts  in  Banc.  Not  one  was  cited  in 
the  argument  bearing  closely  enough  upon  this  point  to  warrant  me  in 
any  further  detailed  examination  of  them.  I  conclude  therefore  what 
occurs  to  me  on  the  first  proposition  on  which  the  plaintiff's  case  rests. 

Judgment  for  plaintiff} 

1  Cattle  'v.  Stockton  CJo.,  L.  R.  10  Q.  B.  453,  458  {semble))  Angle  v.  Chicago  R. 
Co.,  161  U.  S.  1:  Bitterman  v,  Louisville  R.  Co.,  207  U.  S.  206;  222-23:  Dr.  MUes 
Medical  Co.  v.  Park  &  Sons  Co.,  220  U.  S.  373,  394  {semble))  Heaton  Co.  v.  Dick, 
66  Fed.  23.  62  Fed.  667;  Heath  v,  American  Book  Co.,  97  Fed.  533;  Tubular  Co. 
V.  Exeter  Co.,  169  Fed.  824;  Motley  v.  Detroit  Co.,  161  Fed.  389;  Chipley  ».  At- 


BOWEN  t^.  HALL 

In  the  Coubt  op  Appeal,  February  5, 1881. 

Reported  in  6  QueenU  Bench  Dunsion,  333. 

Brett,  L.  J.*  The  Lord  Chancellor  agrees  with  me  in  the  judg- 
ment I  am  about  to  read,  and  it  is  to  be  taken  therefore  as  the  judg- 
ment  of  the  Lord  Chancellor  as  well  as  of  myself. 

In  this  case,  we  were  of  opinion  at  the  hearing,  that  the  contract 
was  one  for  personal  service,  though  not  one  which  established  strictly 
for  all  purposes  the  relation  of  master  and  servant  between  the  plain- 
tiff and  Pearson.  We  were  of  opinion  that  there  was  evidence  to 
justify  a  finding  that  Pearson  had  been  induced  by  the  defendants  to 
break  his  contract  of  service,  that  he  had  broken  it,  and  had  thereby, 
in  fact,  caused  some  injury  to  the  plaintiff.  We  were  of  opinion  that 
the  act  of  the  defendants  was  done  with  knowledge  of  the  contract 
between  the  plaintiff  and  Pearson,  was  done  in  order  to  obtain  an 
advantage  for  one  of  the  defendants  at  the  expense  of  the  plaintiff, 
was  done  from  a  wrong  motive,  and  would  therefore  justify  a  finding 
that  it  was  done  in  that  sense  maliciously.  There  remained  never- 
theless the  question,  whether  there  was  any  evidence  to  be  left  to  the 

kinson,  23  Fla.  206;  Doremus  v,  Hennessy.  176  111.  608;  Heywood  v,  TiDson,  75 
Me.  225, 236  (semble) ;  Knickerbocker  loe  Co.  v,  Gardiner  Dainr  Co.,  107  Md.  556; 
Walker  v.  Oronin.  107  MaaB.  555;  Beelonan  v.  Marsters,  105  Maas.  205;  Jc^ce  v. 
Great  Northern  K.  Co.,  100  Minn.  225:  Mealey  v.  Bemidji  Lumber  Co.,  118  Minn. 
427;  Lally  v,  Cantwell,  30  Mo.  App.  524:  Van  Horn  v.  Van  Horn,  52  N.  J.  Law, 
284;  Haskins  v,  Royster,  70  N.  C.  601;  Jones  v.  Stanly,  76  N.  C.  355;  Flaccua  v. 
Smith,  199  Pa.  St.  128;  Deb  v.  Winfree,  80  Tex.  400,  405;  Raymond  v.  Yarring- 
ton,  96  Tex.  443;  Brown  Co.  v,  Indiana  Stove  Woiks,  96  Tex.  453;  Dufl^  v. 
Duffies,  76  Wis.  374,  377  (aemMe):  Martens  v,  Reilly,  109  Wis.  464;  Hewitt  v. 
Ontario  Co.,  44  Up.  Can.  Q.  B.  287  Accord, 

Boyson  v.  Thorn,  98  Cal.  578;  Barron  v,  Collins,  49  Gn.  580  (gembU):  Cham- 
bers V,  Baldwin,  91  Ky.  121;  Bourlier  v.  Macauley,  91  Ky.  135;  Kline  v,  Eubanlcs, 
109  La.  241  (aemble);  Ashley  v.  Dixon,  48  N.  Y.  430;  De  Jong  v.  Behrman,  148 
App.  Div.  37;  Laskey  Feature  Play  Co.  v.  Fox,  93  Misc.  364;  Swain  v.  Johnson, 
161  N.  C.  93;  Sleeper  v.  Baker,  22  N.  D.  386  Contra. 

It  was  decided  before  the  case  of  Lumle3r  v,  Gye  that  an  action  for  slander  of 
title  was  maintainable  where  the  only  special  damage  laid  was  the  breadi  by  a 
third  person  of  his  contract  with  the  plaintiff.  Green  v.  Button,  2  C.  M.  A  R.  707. 
But  see,  contra,  Kendall  v.  Stone,  5  N.  Y.  14;  Brentman  v.  Note,  3  N.  Y.  Sup.  420 
(N.  Y.  City  Court). 

So  an  action  would  doubtless  lie  for  defamatory  words,  not  actionable  per  «e, 
which  induced  a  third  person  to  break  his  contract  to  marry  the  plaint.  But 
compare  Davis  v.  Condit,  124  Minn.  365  (seduction  of  plaintiff's  fianc^). 

As  to  justification,  see  Leonard  v.  Wlietstone,  34  Ina.  App.  383. 

On  the  general  subject,  see  also  Sweeney  v.  Smith,  167  Fed.  385;  Mahoney  o. 
Roberts,  86  Ark.  130;  Citizens'  Light,  &c.  Co.  t;.  Montgomenr  Light,  Ac,  Ck>.,  171 
Fed.  553,  560, 561 ;  McGurk  v.  Cronenwett,  199  Mass.  457;  Globe  Ins.  Co.  v.  Fire- 
man's Ins.  Co.,  97  Miss.  148;  Bi^rs  v.  Matthews,  147  N.  C.  299;  Thacker  Coal 
Co.  V.  Burke,  59  W.  Va.  253;  Huffcutt,  Interference  with  Contracts  and  Business 
in  New  York,  18  Harvard  Law  Rev.  423. 

^  The  statement  of  facts  and  the  dissenting  opinion  of  Lord  Coleridge,  C.  J.,  are 
omitted. 


jury  against  the  defendants  Hall  and  Fletcher,  it  bemg  objected  that 
Pearson  was  not  a  servant  of  the  plainti£f.  The  case  was  accurately 
within  the  authority  of  the  case  of  Lumley  v.  Gye.  If  that  case  was 
rightly  decided,  the  objection  in  this  case  failed.  The  only  question 
then  which  we  took  time  to  consider  was  whether  the  decision  of  the 
majority  of  the  judges  in  that  case  should  be  supported  in  a  Court  of 
Error.  That  case  was  so  elaborately  discussed  by  the  learned  judges 
who  took  part  in  it,  that  Uttle  more  can  be  said  about  it,  than  whether, 
after  careful  consideration,  one  agrees  rather  with  the  judgments  of 
the  majority,  or  with  the  most  careful,  learned,  and  able  judgment  of 
Mr.  Justice  Coleridge.  The  decision  of  the  majority  will  be  seen,  on  a 
•  careful  consideration  of  their  judgments,  to  have  been  founded  upon 
two  chains  of  reasoning.  First,  that  wherever  a  man  does  an  act  which 
in  law  and  in  fact  is  a  wron^ul  act,  and  such  an  act  as  may,  as  a 
natural  and  probable  consequence  of  it,  produce  injury  to  another,  and 
which  in  the  particular  case  does  produce  such  an  injury,  an  action 
on  the  case  will  he.  This  is  the  proposition  to  be  deduced  from  the 
case  of  Ashby  v.  White,  1  Sm.  L.  C.  (8th  ed.),  p.  264.  If  these  condi- 
tions  are  satisfied,  the  action  does  not  the  less  lie  because  the  natural 
and  probable  consequence  of  the  act  complained  of  is  an  act  done  by  a 
third  person:  or  because  such  act  so  done  by  the  third  person  is  a 
breach  of  duty  or  contract  by  him  or  an  act  ill^al  on  his  part,  or  an 
act  otherwise  imposing  an  actionable  liability  on  him.  It  has  been 
said  that  the  law  implies  that  the  act  of  the  third  party,  being  one 
which  he  has  free  will  and  power  to  do  or  not  to  do,  is  his  own  wilful 
act,  and  therefore  is  not  the  natural  or  probable  result  of  the  defend- 
ants' act.  In  many  cases  that  may  be  so,  but  if  the  law  is  so  to  imply 
in  every  case,  it  will  be  an  implication  contrary  to  manifest  truth  and 
fact.  It  has  been  said  that  if  the  act  of  the  third  person  is  a  breach 
of  duty  or  contract  by  him,  or  is  an  act  which  it  is  illegal  for  him  to 
do,  the  law  will  not  recognize  that  it  is  a  natural  or  probable  conse- 
quence of  the  defendant's  act.  Again,  if  that  were  so  held  in  all  cases, 
the  law  would  in  some  refuse  to  recognize  what  is  manifestly  true  in 
fact.  If  the  judgment  of  Lord  Ellenborough  in  Vicars  v.  Wilcocks, 
8  East,  1,  requires  this  doctrine  for  its  support,  it  is  in  our  opinion 
wrong. 

We  are  of  opinion  that  the  propositions  deduced  above  from  Ashby 
V.  White,  1  Sm.  L.  C.  (8th  ed.),  p.  264,  are  correct.  If  they  be  ap- 
pUed  to  such  a  case  as  Lumley  v.  Gye,  the  question  is  whether  all  the 
conditions  are  by  such  a  case  fulfilled.  The  first  is  that  the  act  of  the 
defendants  which  is  complained  of  must  be  an  act  wrongful  in  law 
and  in  fact.  Merely  to  persuade  a  person  to  break  his  contract,  may 
not  be  wrongful  in  law  or  fact  as  in  the  second  case  put  by  Coleridge, 
J.,  supra.  But  if  the  persuasion  be  used  for  the  indirect  purpose  of 
injuring  the  plaintiff,  or  of  benefiting  the  defendant  at  the  expense 


r 


of  the  plaintiff,  it  is  a  malicious  act  which  is  in  law  and  in  fact  a 
wrong  act,  and  therefore  a  wrongful  act,  and  therefore  an  actionable 
act  if  injury  ensues  from  it.  We  think  that  it  cannot  be  doubted  that 
a  malicious  act,  such  as  is  above  described,  is  a  wrongful  act  in  law 
and  in  fact.  The  act  complained  of  in  such  a  case  as  Lumley  v.  Gye, 
and  which  is  complained  of  in  the  present  case,  is  therefore,  because 
malicious,  wrongful.  That  act  is  a  persuasion  l3y  the  defendant  of  a 
third  person  to  break  a  contract  existing  between  such  third  person 
and  the  plaintiff.  It  cannot  be  maintained  that  it  is  not  a  natural 
and  probable  consequence  of  that  act  of  persuasion  that  the  third 
person  will  break  his  contract.  It  is  not  only  the  natural  and  probable 
consequence,  but  by  the  terms  of  the  proposition  which  involves  the 
success  of  the  persuasion,  it  is  the  actual  consequence.  Unless  there 
be  some  technical  doctrine  to  oblige  one  to  say  so,  it  seems  impossible 
to  say  correctly,  in  point  of  fact,  that  the  breach  of  contract  is  too 
remote  a  consequence  of  the  act  of  the  defendaoits.  The  technical 
objections  alluded  to  above  have  been  suggested  as  the  consequences 
of  the  judgment  in  Vicars  v.  Wilcocks,  8  East,  1.  But  that  judgment 
when  so  used  or  reUed  on  seems  to  us  to  be  disapproved  in  the  opinions 
given  in  the  House  of  Lords  in  Lynch  v.  Knight,  9  H.  L.  C.  577,  and 
seems  to  us  when  so  used  to  be  unreasonable.  In  the  case  of  Lumley  v. 
Gye,  and  in  the  present  case,  the  third  condition  is  fulfilled,  namely, 
that  the  act  of  the  defendant  caused  an  injury  to  the  plaintiff,  unless 
again  it  can  be  said  correctly  that  the  injury  is  too  remote  from  the 
cause.  But  that  raises  again  the  same  question  as  has  been  just  dis- 
missed. It  is  not  too  remote  if  the  injury  is  the  natural  and  probable 
consequence  of  the  alleged  cause.  That  is  stated  in  all  the  opinions  in 
Lynch  v.  Knight,  9  H.  L.  C.  577.  The  injury  is  in  such  a  case  in  law  as 
well  as  in  fact  a  natural  and  probable  consequence  of  the  cause,  be- 
cause it  is  in  fact  the  consequence  of  the  cause,  and  there  is  no  techni- 
cal rule  against  the  truth  being  recognized.  It  follows  that  in  Lumley 
V,  Gye,  and  in  the  present  case,  all  the  conditions  necessary  to  maintain 
an  action  on  the  case  are  fulfilled. 

Another  chain  of  reasoning  was  relied  on  by  the  majority  in  Lum- 
ley V.  Gye,  and  powerfully  combated  by  Coleridge,  J.  It  was  said  that 
the  contract  in  question  was  within  the  principle  of  the  Statute  of 
Laborers,  that  is  to  say,  that  the  same  evil  was  produced  by  the  same 
means,  and  that  as  the  statute  made  such  means  when  employed  in  the 
case  of  master  and  servant,  strictly  so  called,  wrongful,  the  common 
law  ought  to  treat  similar  means  employed  with  regard  to  parties 
standing  in  a  similar  relation  as  also  wrongful.  If,  in  order  to  sup- 
port Lumley  v.  Gye,  it  had  been  necessary  to  adopt  this  proposition 
we  should  have  much  doubted,  to  say  the  least.  The  reasoning  of 
Coleridge,  J.,  upon  the  second  head  of  his  judgment  seems  to  us  to  be 
as  nearly  as  possible,  if  not  quite,  conclusive.  But  we  think  it  is  not 
necessary  to  base  the  support  of  the  case  upon  this  latter  proposition. 


CHAP.  VIII.]    MINEBS'  FEDERATION  V.  GLAMORGAN  COAL  CO.    887 

We  think  the  case  is  better  supported  upon  the  first  and  larger  doc- 
trine. And  we  are  therefore  of  opinion  that  the  judgment  of  the 
Queen's  Bench  Division  was  correct,  and  that  the  principal  appeal 
must  be  dismissed.  Appeal  dismissed} 


GLAMORGAN  COAL  CO.,  LIMITED  v.  SOUTH  WALES 
MINERS'  FEDERATION 

In  the  Court  op  Appeal,  August  11, 1903. 
Reported  in  [1903]  2  King's  Bench,  545. 

SOUTH  WALES  MINERS'  FEDERATION  v.  GLA- 
MORGAN COAL  CO.,  LIMITED 

In  the  House  op  Lords,  April  14, 1905. 

Reported  in  [1905]  Appeal  Cases,  239. 

Appeal  by  the  plaintifiFs  from  the  decision  of  Bigham,  J.,  [1903] 
1  K.  B.  118.« 

The  action  was  brought  by  the  Glamorgan  Coal  Company,  Limited, 
and  seventy-three  other  plaintiffs,  owners  of  collieries  in  South  Wales, 
against  the  South  Wales  Miners'  Federation,  its  trustees,  its  officers, 
and  a  number  of  members  of  its  executive  council,  claiming  damages 
for  wrongfully  and  maliciously  procuring  and  inducing  workmen  em- 
ployed in  the  plaintiffs'  coUieries  to  break  their  contracts  of  service 
with  the  plaintiffs.  In  the  alternative  the  plaintiffs  sued  the  defend- 
ants for  wrongfully,  unlawfully,  and  maUciously  conspiring  together 
to  do  the  acts  complained  of.  The  plaintiffs  claimed  both  damages 
and  an  injimction. 

The  defence  consisted  of  denials  of  the  material  allegations  in  the 
statement  of  claim,  and  of  a  plea  that  the  acts  complained  of  were 
done,  if  at  aU,  with  reasonable  justification  and  excuse.    The  trial 

1  "  That  this  was  a  wron^ul  interference  on  the  part  of  the  Omaha  Company, 
and  that  it  resulted  directly  m  loss  to  the  contractor  and  to  the  Portage  Company, 
is  apparent.  It  is  not  an  answer  to  say  that  there  was  no  certainty  that  the  con- 
tractor would  have  completed  his  contract,  and  so  earned  these  lands  for  the  Por- 
tage Company.  If  such  a  defence  were  tolerated,  it  would  always  be  an  answer  in 
case  of  any  wrongful  interference  with  the  performance  of  a  contract,  for  there  is 
always  that  lack  of  certainty.  It  is  enough  that  there  should  be,  as  there  was  here, 
a  reasonable  assurance,  considering  all  the  surroundings,  that  the  contract  would 
be  performed  in  the  manner  and  within  the  time  stipulated,  and  so  performed  as  to 
secure  the  land  to  the  company. 

"  It  certainly  does  not  lie  in  the  mouth  of  a  wrongdoer,  in  the  face  of  such  prob- 
abilities as  attend  this  case,  to  say  that  perhaps  the  contract  would  not  have  been 
completed  even  if  no  interferenceliad  been  had,  and  that,  therefore,  there  being  no 
certainty  of  the  loss,  there  is  no  liability."  Brewer,  J.,  in  Angle  v.  Chicago  R.  Co., 
151  U.  8.  1,  12. 

*  Statement  abridged.    Arguments  omitted;  also  part  of  opinions. 


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of  tiie  action  was  commenced  with  a  special  jury;  but  ultimately  the 
jury  was  discharged,  and  all  questions  of  law  and  fact,  as  well  as  the 
ascertainment  of  damages,  if  any,  were  by  consent  left  to  the  deter- 
mination of  the  learned  judge. 

The  following  facts  (inter  alia)  were  stated,  in  substance,  by  Big- 
ham,  J.,  in  his  written  opinion:  — 

The  plaintiffs  are  seventy-four  limited  liability  companies  associ- 
ated together  for  the  protection  of  their  own  interests  under  the  style 
of  the  Monmouthshire  and  South  Wales  Coal  Owners'  Association. 
They  work  upwards  of  200  collieries  in  the  South  Wales  district,  and 
in  these  collieries  they  employ  about  100,000  men. 

For  the  last  twenty  or  twenty-five  years  the  masters  and  the  men 
in  the  South  Wales  coUieiy  district  have  worked  together  under  an 
agreement,  called  the  sliding  scale  agreement,  by  which  the  rate  of 
wages  paid  to  the  men  is  made  to  depend  on  the  price  for  the  time 
being  of  a  certain  agreed  class  of  coal  —  that  is  to  say,  as  the  price  of 
that  coal  rises  or  falls  so  the  rate  of  wages  moves  up  or  down.  Clause 
23  of  the  sliding  scale  agreement  is  as  follows:  ''  It  is  hereby  agreed 
that  aU  notices  to  terminate  contracts  on  the  part  of  the  employers  as 
well  as  employed,  shall  be  given  only  on  the  first  day  of  any  calendar 
month,  and  to  terminate  on  the  last  day  of  the  same  month." 

The  defendant  federation  was  formed  in  1898,  and  in  1899  was 
registered  under  the  Friendly  Societies  Act.  Practically  all  the  miners 
in  the  South  Wales  district  became  members  of  it.  There  are  about 
128,000  members;  including  all,  or  very  nearly  all,  the  men  who  work 
for  the  plaintiffs.  In  1900  the  federation  was  in  the  possession  of 
funds  amounting  to  100,0001.  By  its  rules  its  objects  are  declared  to 
be  to  provide  fimds  to  carry  on  the  business  of  the  federation;  taking 
into  consideration  the  question  of  trade  and  wages;  to  protect  work- 
men generally,  and  regulate  the  relations  between  them  and  an- 
ployers;  and  to  call  conferences  to  deal  with  questions  affecting  the 
workmen  of  a  trade,  wage,  and  l^islative  character. 

In  November,  1900,  the  executive  council  of  the  federation  re- 
quested the  workmen  to  hold  meetings  for  the  purpose  of  electing 
delegates  to  attend  a  conference  on  November  12.  Delegates  were 
accordingly  elected,  and  at  the  conference  a  resolution  was  passed 
authorizing  the  council  of  the  federation  to  declare  a  general  holiday 
at  any  time  they  might  think  it  necessary  for  the  protection  of  wages 
and  of  the  industry  generally. 

On  October  23, 1901,  a ''  manifesto  ''  to  the  workmen  was  published, 
stating  that  it  had  been  resolved  that  the  workmen  shall  observe  as 
general  holidays  Friday  and  Saturday  next.  Subsequently  two  other 
stop-days  were  ordered,  viz.:  for  October  31  and  November  6.  (The 
reasons  for  issuing  the  manifesto  are  stated  in  the  opinion  of  Srm- 
LiNO,  L.  J.,  post.)  The  result  was  that  the  men  stayed  away  from 
work  on  the  four  days,  and  so  broke  their  contracts  with  ihe  masters. 


The  manifesto  purported  to  be  issued  by  the  sliding  scale  com- 
mittee, and  was  signed  by  the  members  of  that  committee,  who  were 
also  members  of  the  executive  council  of  the  federation.  But  in  fact 
the  issuing  of  the  manifesto  was  caused  by  the  executive  council  of  the 
federation.  In  truth  it  was  the  federation  who  were  acting;  the  name 
of  the  sliding  scale  committee  being  used  as  a  blind,  with  the  purpose 
of  securing  the  fimds  of  the  federation  from  possible  liabiUty  under 
the  decision  in  the  Taflf  Vale  Case,  [1901]  App.  Cas.  426. 

BiGHAM,  J.,  concluded  his  findings  of  fact  with  the  following 
statement:  — 

"  The  evidence  satisfies  me  that  the  action  of  the  federation,  and  of 
the  other  defendants  in  1901,  was  dictated  by  an  honest  desire  to  for- 
ward the  interest  of  the  workmen,  and  was  not,  in  any  sense,  prompted 
by  a  wish  to  injure  the  masters.  Neither  the  federation  nor  the  other 
defendants  had  any  prospect  of  personal  gain  from  the  operation  of 
the  stop-days.  Having  been  requested  by  the  men  by  the  resolution 
of  November  12,  1900,  to  advise  and  direct  them  as  to  when  to  stop 
work,  the  federation  and  the  other  defendants,  who  were  its  officers, 
in  my  opinion,  did  to  the  best  of  their  ability  advise  and  direct  the 
men.  Whether  they  advised  them  wisely  I  cannot  say,  though  I  am 
inclined  to  think  not.  But  I  am  satisfied  that  they  advised  them 
honestly,  and  without  maUce  of  any  kind  against  the  plaintiffs. 

"  I  have  to  decide,  in  these  circumstances,  whether  an  action  in  tort 
will  he  against  the  defendants.  The  advice  and  guidance  of  the  de- 
fendants was  solicited  and  given.  If  followed,  it  involved,  as  the 
defendants  knew,  the  breaking  of  the  subsisting  contracts.  It  was 
foUowed,  as  the  defendants  wished  it  should  be,  and  damage  resulted 
to  the  masters;  but  there  was  no  malicious  intention  to  cause  injury, 
no  profit  was  gained  for  themselves  by  the  defendants,  and  their  sole 
object  was  to  benefit  the  men  whom  they  were  advising  and  directing." 

The  learned  judge  gave  judgment  for  the  defendants  on  both 
branches  of  the  plaintiffs'  claim.  His  opinion  is  reported  in  [1903] 
1  K.  B.  118. 

Plaintiffs  appealed. 

[The  opinion  of  Vaughan  Williams,  L.  J.,  in  favor  of  affirmance, 
is  omitted.] 

RoMER,  L.  J.  The  law  applicable  to  this  case  is,  I  think,  well 
settled.  I  need  only  refer  to  two  passages  in  which  that  law  is  shortly 
and  comprehensively  stated.  In  Quinn  v.  Leathem  [1901],  A.  C.  495, 
at  p.  510,  Lord  Macnaghten  said:  "  A  violation  of  legal  right  com- 
mitted knowingly  is  a  cause  of  action,  and  it  is  a  violation  of  legal 
right  to  interfere  with  contractual  relations  recognized  by  law  if  there 
be  no  sufficient  justification  for  the  interference."  And  in  Mogul 
Steamship  Co.  v.  McGregor,  Gow  &  Co.,  23  Q.  B.  D.  598,  at  p.  614, 
Bowen,  L.  J.,  included  in  what  is  forbidden  "  the  intentional  procure- 
ment of  a  violation  of  individual  rights,  contractual  or  other,  assum- 


r 


890  miners'  federation  v.  Glamorgan  coal  co.   [chap.  vui. 

ing  always  that  there  is  no  just  cause  for  it/'  But  although,  in  my 
judgment,  there  is  no  doubt  as  to  the  law,  yet  I  fully  recognize  that 
considerable  difficulties  may  arise  in  applying  it  to  the  circumstances 
of  any  particular  case.  When  a  person  has  knowingly  procured  an- 
other to  break  his  contract,  it  may  be  difficult  under  the  circumstances 
to  say  whether  or  not  there  was  "  sufficient  justification  or  just  cause  " 
for  his  act.  I  think  it  would  be  extremely  difficult,  even  if  it  were 
possible,  to  give  a  complete  and  satisfactory  definition  of  what  is 
"  sufficient  justification,''  and  most  attempts  to  do  so  would  probably 
be  mischievous.  I  certainly  shall  not  make  the  attempt.  In  particu- 
lar I  do  not  think  it  necessary  or  useful  to  discuss  the  point  as  to  how 
far  the  question  of  justification  can  be  assimilated  to  the  question  of 
malice  in  cases  of  libel  and  slander.  As  Collins,  M.  R.,  said  in  Read 
V.  Friendly  Society  of  Operative  Stonemasons,  [19Q2]  2  K.  B.  732,  at 
p.  739:  ''  It  is  not  at  all  necessary  in  this  case  to  embark  upon  the 
question  whether  '  without  just  cause  '  is  a  complete  equivalent  for 
what  was  meant  in  the  common  law  by  *  malice.'  I  am  inclined  to 
think  that,  though  in  many  cases  adequate  as  a  description,  it  is  not 
co-extensive  with  it,  nor  do  I  think  that  in  civil  actions  any  more  than 
in  criminal  it  will  be  possible  to  eliminate  motives  from  the  discus- 
sion.'' I  respectfully  agree  with  what  Bowen,  L.  J.,  said  in  the  Mogul 
Case,  when  considering  the  difficulty  that  might  arise  whether  there 
was  sufficient  justification  or  not:  '*  The  good  sense  of  the  tribunal 
which  had  to  decide  would  have  to  analyze  the  circumstances  and  to 
discover  on  which  side  of  the  line  each  case  fell."  I  will  only  add  that, 
in  analyzing  or  considering  the  circimistances,  I  think  tliat  r^ard 
might  be  had  to  the  nature  of  the  contract  broken;  the  position  of 
the  parties  to  the  contract;  the  grounds  for  the  breach;  the  means 
employed  to  procure  the  breach;  the  relation  of  the  person  procuring 
the  breach  to  the*person  who  breaks  the  contract;  and  I  think  also  to 
the  object  of  the  person  in  procuring  the  breach.  But,  though  I  depre- 
cate the  attempt  to  define  justification,  I  think  it  right  to  express  my 
opinion  on  certain  points  in  connection  with  breaches  of  contract  pro- 
cured where  the  contract  is  one  of  master  and  servant.  In  my  opinion, 
a  defendant  sued  for  knowingly  procuring  such  a  breach  is  not  justi- 
fied of  necessity  merely  by  his  showing  that  he  had  no  personal  animus 
against  the  employer,  or  that  it  was  to  the  advantage  or  interest  of 
both  the  defendant  and  the  workman  that  the  contract  should  be 
broken.  I  take  the  following  simple  case  to  illustrate  my  view.  If  A. 
wants  to  get  a  specially  good  workman,  who  is  under  contract  with  B., 
as  A.  knows,  and  A.  gets  the  workman  to  break  his  contract  to  B.'s 
injury  by  giving  him  higher  wages,  it  would  not,  in  my  opinion,  afford 
A.  a  defence  to  an  action  against  him  by  B.  that  he  could  establish  he 
had  no  personal  animus  against  B.,  and  that  it  was  both  to  the  interest 
of  himself  and  of  the  workman  that  the  contract  with  B.  should  be. 
broken.   I  think  that  the  principle  involved  in  this  simple  case,  taken 


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by  me  by  way  of  illustration,  really  governs  the  present  case.  For  it  is 
to  be  remembered  that  what  A.  has  to  justify  is  his  action,  not  as  be- 
tween him  and  the  workman,  but  as  regards  the  employer  B.  And,  if 
I  proceed  to  apply  the  law  I  have  stated  to  the  circumstances  of  the 
present  case,  what  do  I  find  ?  On  the  findings  of  fact  it  is  to  my 
mind  clear  that  the  defendants,  the  federation,  procured  the  men  to 
break  their  contracts  with  the  plaintiffs  —  so  that  I  need  not  consider 
how  the  question  would  have  stood  if  what  the  federation  had  done 
had  been  merely  to  advise  the  men,  or  if  the  men,  after  taking  ad- 
vice, had  arranged  between  themselves  to  break  their  contracts,  and 
the  federation  had  merely  notified  the  men's  intentions  to  the  plain- 
tiffs. The  federation  did  more  than  advise.  They  acted,  and  by  their 
agents  actually  procured  the  men  to  leave  their  work  and  break  their 
contracts.  In  short,  it  was  the  federation  who  caused  the  injury  to 
the  plaintiflfs.  This  was  practically  admitted  before  us  by  the  coun- 
sel for  the  federation,  and,  indeed,  such  an  admission  could  not,  in 
my  opinion,  be  avoided,  having  regard  to  the  facts  stated  by  the 
learned  judge  in  his  judgment.  And  it  is  not  disputed  that  the  fed- 
eration acted  as  they  did  knowingly.  So  that  the  only  question  which 
remains  is  one  of  justification.  Now  the  justification  urged  is  that  it 
was  thought,  and  I  will  assume  for  this  purpose  rightly  thought,  to 
be  in  the  interest  of  the  men  that  they  should  leave  their  work  in 
order  to  keep  up  the  price  of  coal,  on  which  the  amount  of  wages  of 
the  men  depended.  As  to  this,  I  can  only  say  that  to  my  mind  the 
ground  aUeged  affords  no  justification  for  the  conduct  of  the  federa- 
tion towards  the  employers;  for,  as  I  have  already  pointed  out,  the 
absence  on  the  part  of  the  federation  of  any  malicious  intention  to 
injure  the  employers  in  itself  affords  no  suflScient  justification.  But 
it  was  said  that  the  federation  had  a  duty  towards  the  men  which 
justified  them  in  doing  what  they  did.  For  myself  I  cannot  see  that 
they  had  any  duty  which  in  any  way  compelled  them  to  act,  or  justi- 
fied them  in  acting,  as  they  did  towards  the  plaintiffs.  And  the  fact 
that  the  men  and  the  federation,  as  being  interested  in  or  acting  for 
the  benefit  of  the  men,  were  both  interested  in  keeping  up  prices,  and 
so  in  breaking  the  contracts,  affords  in  itself  no  suflScient  justifica- 
tion for  the  action  of  the  federation  as  against  the  plaintiffs,  as  I 
have  already  pointed  out.  I  think,  therefore,  that  the  appeal  must 
succeed. 
Stirling,  L.  J. 

That  interference  with  contractual  relations  known  to  the  law  may 
in  some  cases  be  justified  is  not,  in  my  opinion,  open  to  doubt.  For 
example,  I  think  that  a  father  who  discovered  that  a  child  of  his  had 
entered  into  an  engagement  to  marry  a  person  of  immoral  character 
would  not  only  be  justified  in  interfering  to  prevent  that  contract  from 
being  carried  into  effect,  but  would  greatly  fail  in  his  duty  to  his  child 


f 


if  he  did  not.  This  duty  is  recognized  by  the  courts;  for  the  Court 
of  Chancery  and  the  Chancery  Division  of  the  High  Court  of  Justice 
have  continually  so  interfered  on  behalf  of  wards  of  Court,  sometimes 
with  a  heavy  hand;  and  the  principle  on  which  the  judges  of  those 
courts  have  acted  is  simply  that  of  doing  on  behalf  of  the  ward  that 
which  a  right-midded  father  would  do  in  the  true  interest  of  his  child. 
I  conceive  that  circumstances  might  occur  which  would  give  rise  to  the 
same  duty  in  the  case  of  a  contract  of  service.  I  need  not  say  that  the 
present  is  a  very  different  case  from  that  which  I  have  just  put.  It 
would  no  doubt  be  desirable  if  a  general  rule  could  be  formulated 
which  would  detennine  in  what  cases  such  a  justification  exists;  but 
no  such  rule  has  been  laid  down,  and  I  doubt  whether  this  can  be 
done;  so  far  as  I  can  see  it  must  be  left  (in  the  language  of  Lord 
Bowen)  to  the  tribimal  to  analyze  the  circumstances  of  each  particular 
case  and  discover  whether  a  justification  exists  or  not. 

In  the  present  case  the  learned  judge  finds  that  the  federation  and 
the  other  defendants  *'  had  lawful  justification  or  excuse  for  what  they 
did  in  this,  that  having  been  solicited  by  the  men  to  advise  and  guide 
them  on  the  question  of  stop-days,  it  was  their  duty  and  right  to  give 
them  advice,  and  to  do  what  mi^t  be  necessary  to  secure  that  the 
advice  should  be  followed;  "  and  the  existence  of  this  duty  has  been 
strongly  pressed  upon  us  in  argument  by  the  learned  counsel  for  the 
several  defendants.  It  will  be  observed  that  the  learned  judge  ex- 
pressly finds  that  the  defendants  were  not  merely  advisers,  but  al^o 
agents  "  to  do  what  might  be  necessary  to  secure  that  the  advice 
should  be  followed."  In  the  view  which  I  take  of  the  facts  the  defend- 
ants not  only  gave  advice,  but  acted,  and  their  action  took  the  form  of 
interfering  with  the  contractual  relations  between  the  masters  and  the 
men.  If  in  so  doing  they  committed  a  tort,  it  would  be  no  answer  to 
say  that  they  acted  upon  the  advice  of  a  third  person,  as,  for  example, 
their  own  solicitor;  and  it  is  difficult  to  see  how  they  can  be  in  a  bet- 
ter position  simply  because  the  advice  on  which  they  acted  emanated 
from  themselves. 

In  my  judgment  the  liability  of  the  defendants  must  turn  on  the 
answer  to  be  given  to  the  question  whether  the  circumstances  of  the 
case  were  in  fact  such  as  to  justify  the  defendants,  or  any  of  them, 
in  acting  as  they  did. 

The  circumstances  were  these :  Middlemen  at  Cardiff  were  attempt- 
ing to  reduce  the  price  of  coal,  and  it  was  feared  that  some  employers 
might  yield  to  the  pressure  of  competition  and  enter  into  agreements 
for  the  sale  of  coal  at  prices  lower  than  those  existing  at  the  time, 
with  the  result  that  the  wages  of  the  miners,  which  were  regulated 
by  a  sliding  scale,  would  be  reduced. 

To  coimteract  this  it  was  considered  desirable  by  the  men's  advis- 
ers that  prices  should  be  sustained  by  diminishing  the  output  of  coal, 
and  that  this  should  be  effected  by  the  men  taking  the  holida3rs  com- 


plained  of.  It  was  not  contended  or  suggested  that  a  limitation  of 
the  output  of  coal  was  an  illegitimate  object  or  aim  on  the  part  of  the 
men,  or  that,  if  it  could  have  been  attained  without  the  breach  of 
contracts  (as,  for  example,  by  the  service  of  proper  notices  putting  an 
end  to  those  contracts),  the  men  would  not  have  been  within  their 
legal  rights.  The  diflSculty  which  presented  itself  was  this, — that 
one  of  the  terms  of  the  arrangement  under  which  the  sliding  scale 
of  wages  existed  was  that  notices  of  the  determination  of  contracts 
of  employment  should  only  be  given  on  the  first  day  of  a  calendar 
month  to  terminate  on  the  last  day,  and  this  prevented  notices  of  de- 
termination being  effective  at  the  desired  moment.  The  critical  period 
was  known  to  occur  in  October  or  November.  The  men  persuaded 
themselves  that  it  was  the  masters'  interest  as  well  as  their  own  that 
they  should  have  power  to  take  holidays  at  this  period;  but  this  was 
a  point  on  which  die  masters  were  entitled  to  have  their  own  opinion; 
and  from  what  occurred  in  November,  1900,  it  was  known  to  the  men 
that  the  masters'  view  did  not  agree  with  that  of  the  men.  If  the 
men  had  faith  in  the  soimdness  of  their  opinion,  their  course  was  to 
negotiate  through  the  defendants  for  a  modification  of  the  sliding 
scale  arrangement;  what  they  actually  thought  fit  to  do  was  that 
while  insisting  cm  the  benefit  of  the  sliding  scale  they  treated  them- 
selves as  emancipated  from  the  observance  of  one  of  the  terms  on 
which  that  scale  had  been  agreed  to,  although  the  masters  objected, 
and  although  the  course  taken  by  the  men  might  result  in  serious 
damages  to  the  masters,  or  some  of  them.  This  is,  I  think,  a  difficult 
position  to  maintain.  The  justification  set  up  seems  to  me  to  amoimt 
to  no  more  than  this  —  that  the  course  which  they  took,  although  it 
might  be  to  the  detriment  of  the  masters,  was  for  tiie  pecimiary  inter- 
est of  the  men;  and  I  think  it  wholly  insufficient.  The  defendants 
took  active  steps  to  carry  this  policy  into  effect,  and,  as  I  have  said, 
interfered  to  bring  about  the  violation  of  legal  rights.  In  my  judg- 
ment they  fail  to  justify  those  acts,  and  the  appeal  ought  to  be 
allowed. 

The  Court  declined  to  grant  an  immediate  injimction,  but  reserved 
liberty  to  the  plaintiffs  to  apply  for  an  injunction  in  case  it  should  be 
necessary  to  do  so.  Appeal  allowed. 

The  defendants  appealed  to  the  House  of  Lords. 

The  Earl  of  Halsbxtrt,  L.  C,  gave  an  opinion  in  favor  of  dismiss- 
ing the  appeal. 

Lord  Macnaghtbn. 

But  what  is  the  alleged  justification  in  the  present  case  ?  It  was 
said  that  the  coimcil  —  the  executive  of  the  federation  —  had  a  duty 
cast  upon  them  to  protect  the  interests  of  the  members  of  the  union, 
and  that  they  could  not  be  made  legaUy  responsible  for  the  conse- 
quences of  their  action  if  they  acted  honestly  in  good  faith  and  with- 


( 


out  any  sinister  or  indirect  motive.  The  case  was  argued  with  equal 
candor  and  ability.  But  it  seems  to  me  that  the  argument  may  be 
disposed  of  by  two  simple  questions.  How  was  the  duty  created  ? 
What  in  fact  was  the  alleged  duty  ?  The  alleged  duty  was  created 
by  the  members  of  the  union  themselves,  who  elected  or  appointed 
the  officials  of  the  imion  to  guide  and  direct  their  action;  and  then  it 
was  contended  that  the  body  to  whom  the  members  of  the  imion  have 
thus  conmiitted  their  individual  freedom  of  action  are  not  responsible 
for  what  they  do  if  they  act  according  to  their  honest  judgment  in 
furtherance  of  what  they  consider  to  be  the  interest  of  their  constitu- 
ents. It  seems  to  me  that  if  that  plea  were  admitted  there  would  be 
an  end  of  all  responsibiUty.  It  would  be  idle  to  sue  the  workmen,  the 
individual  wrong-doers,  even  if  it  were  practicable  to  do  so.  Their 
counsellors  and  protectors,  the  real  authors  of  the  mischief,  would  be 
safe  from  legal  proceedings.  The  only  other  question  is.  What  is  the 
alleged  duty  set  up  by  the  federation  ?  I  do  not  think  it  can  be  better 
described  than  it  was  by  Mn  Lush.  It  comes  to  this  —  it  is  the  duty 
on  all  proper  occasions,  of  which  the  federation  or  their  officials  are 
to  be  the  sole  judges,  to  counsel  and  procure  a  breach  of  duty. 

I  agree  with  Romer  and  Stirling,  L JJ.,  and  I  think  the  appeal 
must  be  dismissed, 

LoRn  Jambs. 

In  order,  therefore,  to  establish  the  existence  of  good  cause  and 
excuse,  all  the  defendants  can  say  is,  "  We,  the  federation,  had  the 
duty  cast  upon  us  to  advise  the  workmen.  We  did  advise  them  to 
commit  an  imlawf ul  act,  but  in  giving  that  advice  we  honestly  believed 
that  they  would  be  in  a  better  financial  position  than  if  they  acted 
lawfully  and  fulfilled  their  contracts."  Even  if  it  be  assumed  that 
such  allegations  are  correct  in  fact,  I  think  that  no  justification  in 
law  is  established  by  them.  The  intention  of  the  defendants  was 
directly  to  procure  the  breach  of  contracts.  The  fact  that  their  mo- 
tives were  good  in  the  interests  of  those  they  moved  to  action  does 
not  form  any  answer  to  those  who  have  suffered  from  the  imlawful 
act.  During  the  arguments  that  have  been  addressed  to  your  Lord- 
ships I  do  not  think  quite  sufficient  distinction  was  drawn  between 
the  intention  and  the  motives  of  the  defendants.  Their  intention 
clearly  was  that  tlje  workmen  should  break  their  contracts.  The 
defendants'  motives,  no  doiibt,  were  that  by  so  doing  wages  should  be 
raised.  But  if  in  carrying  out  the  intention  the  defendants  purposely 
procured  an  unlawful  act  to  be  committed,  the  wrong  that  is  thereby 
infficted  cannot  be  obUterated  by  the  existence  of  a  motive  to  secure 
a  money  benefit  to  the  wrong-doers. 

For  these  reasons  I  think  the  judgment  of  the  Court  of  Appeal 
should  be  affirmed.^ 

.  >  As.tp  the  distinction  between  intent  and  motive,  see  Smith,  Crucial  IssiieB  in 
Labor  Litigation,  20  Harvard  Law  Rev.  253,  256-259. 


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Lord  Lindley.  My  Lords,  I  agree  so  entirely  with  the  judgments 
of  Romer  and  Stirling,  L.JJ.,  that  I  should  say  no  more  were  it  not 
for  the  great  importance  of  some  of  the  arguments  addressed  to  your 
Lordships  on  thLs  appeal  and  which  deserve  notice. 

It  is  useless  to  try  and  conceal  the  fact  that  an  organized  body  of 
men  working  together  can  produce  results  very  different  from  those 
which  can  be  produced  by  an  individual  without  assistance.  More- 
over, laws  adapted  to  individuals  not  acting  in  concert  with  others 
require  modification  and  extension  if  they  are  to  be  applied  with 
effect  to  large  bodies  of  persons  acting  in  concert.  The  English  law 
of  conspiracy  is  based  upon  and  is  justified  by  this  undeniable  truth. 

But  the  possession  of  great  pk)wer,  whether  by  one  person  or  by 
many,  is  quite  as  Consistent  with  its  lawful  as  with  its  unlawful  em- 
ployment; and  there  is  no  legal  presumption  that  it  will  be  or  ha6 
been  unlawfully  exercised  in  any  particular  case.  Some  illegal  act 
must  be  proved  to  be  threatened  and  intended,  or  to  have  been  com- 
mitted, before  any  court  of  justice  in  the  United  Kingdom  can  prop- 
erly make  such  conduct  the  basis  of  any  decision. 

These  remarks  are  as  applicable  to  trade  unions  as  to  other  less 
powerful  organizations,  llieir  power  to  intimidate  and  coerce  is  im- 
doubted;  its  exercise  is  comparatively  easy  and  probable;  but  it 
would  be  wrong  on  this  accoimt  to  treat  their  conduct  as  illegal  in  any 
particular  case  without  proof  of  further  facts  which  make  it  so.  It  is 
not  incumbent  on  a  trade  union  to  rebut  any  presumption  of  illegality 
based  only  on  their  power  to  do  wrong.  Freedom  necessarily  involves 
such  a  power;  but  the  mere  fact  of  its  existence  does  not  justify  any 
legal  presumption  that  it  will  be  abused. 

In  the  case  before  your  Lordships  there  is  proof  that  the  members 
of  the  mining  federation  combined  to  break  and  did  break  their  con- 
tracts with  their  employers  by  stopping  work  without  proper  notice 
and  without  proper  leave.  There  is  also  proof  that  the  oflScials  of  the 
federation  assisted  the  men  to  do  this  by  ordering  them  to  stop  work 
on  particular  days  named  by  the  officials.  To  break  a  contract  is  an 
unlawful  act,  or,  in  the  language  of  Lord  Watson  in  Allen  v.  Rood, 
[1898]  A.  C.  at  p.  96,  "a  breach  of  conttwjt  is  in  itself  a  legal  wrong." 
The  form  of  action  for  such  a  wrong  is  quite  immaterial  in  considering 
the  general  question  of  the  legahty  or  illegality  of  a  breach  of  con- 
tract. Any  party  to  a  contract  can  break  it  if  he  chooses;  but  in 
point  of  law  he  is  not  entitled  to  break  it  even  on  offering  to  pay  dam)- 
ages.  If  he  wants  to  entitle  himself  to  do  that  he  must  stipulate  for 
an  option  to  that  effect.  Non-lawyers  are  apt  to  think  that  everything 
is  lawful  which  is  not  criminally  punishable;  but  this  is  an  entire 
misconception.  A  breach  of  contract  would  not  be  actionable  if  noth- 
ing legally  wrong  was  involved  in  the  breach. 

The  federation  by  its  officials  are  clearly  proved  in  this  case  to  have 
been  engaged  in  intentionally  assisting  iu  the  concerted  breach  of  a 


r 


number  of  contracts  entered  into  by  workmen  belonging  to  the  federa- 
tion. This  is  clearly  unlawful,  according  to  Lrnnley  v.  Gye,  2  E.  &  B. 
216,  and  Quinn  v.  Leathem,  [1901]  A.  C.  495,  and  the  more  recent 
case  of  Read  v.  Friendly  Society  of  Stonemasons,  [1902]  2  K.  B.  732. 
Nor  is  this  conclusion  opposed  to  Allen  v.  Flood,  [1898]  A.  C.  1,  or 
the  Mogul  Steamship  Company's  Case,  [1892]  A.  C.  25,  where  there 
was  no  unlawful  act  committed. 

The  appellants'  counsel  did  not  deny  that,  in  his  view  of  the  case, 
the  defendants'  conduct  required  justification,  and  it  was  contended 
(1)  that  all  which  the  officials  did  was  to  advise  the  men,  and  (2) 
that  the  officials  owed  a  duty  to  the  men  to  advise  and  assist  them  as 
they  did. 

As  regards  advice,  it  is  not  necessary  to  consider  when,  if  ever,  mere 
advice  to  do  an  unlawful  act  is  actionable  when  the  advice  is  not  Ubel- 
lous  or  slanderous.  Nor  is  it  necessary  to  consider  those  cases  in 
which  a  person,  whose  rights  will  be  violated  if  a  contract  is  performed, 
is  justified  in  endeavoring  to  procure  a  breach  of  such  contract.  Nor 
is  it  necessary  to  consider  what  a  parent  or  guardian  may  do  to  protect 
his  child  or  ward.  That  there  are  cases  in  which  it  is  not  actionable 
to  exhort  a  person  to  break  a  contract  may  be  admitted;  and  it  is  very 
difficult  to  draw  a  sharp  line  separating  all  such  cases  from  all  others. 
But  the  so-called  advice  here  was  much  more  than  counsel;  it  was 
accompanied  by  orders  to  stop,  which  could  not  be  disobeyed  with  im- 
punity. A  refusal  to  stop  work  as  ordered  would  have  been  regarded 
as  disloyal  to  the  federation.  This  is  plain  from  the  speeches  given  in 
evidence  on  the  trial;  and  in  my  opinion  it  is  a  very  important  ele- 
ment in  the  case  which  cannot  be  ignored. 

As  regards  duty  the  question  immediately  arises  —  duty  to  do 
what  ?  The  defendants  have  to  justify  a  particular  line  of  conduct, 
which  was  wrongful,  i.  e.,  aiding  and  abetting  the  men  in  doing  what 
both  the  men  and  the  officials  knew  was  l^ally  wrong.  The  constitu- 
tion of  the  union  may  have  rendered  it  the  duty  of  the  officials  to 
advise  the  men  what  could  be  legally  done  to  protect  their  own  inter- 
ests; but  a  legal  duty  to  do  what  is  illegal  and  known  so  to  be  is  a  con- 
tradiction in  terms.  A  similar  argument  was  urged  without  success  in 
the  case  of  the  Friendly  Society  of  Stonemasons,  [1902]  2  K.  B.  732, 
already  referred  to. 

Then  your  Lordships  were  invited  to  say  that  there  was  a  moral  or 
social  duty  on  the  part  of  the  officials  to  do  what  they  did,  and  that, 
as  they  acted  bona  fide  in  the  interest  of  the  men  and  without  any  ill- 
will  to  the  employers,  their  conduct  was  justifiable;  and  your  Lord- 
ships were  asked  to  treat  this  case  as  if  it  were  like  a  case  of  libel  or 
slander  on  a  privileged  occasion.  My  Lords,  this  contention  was  not 
based  on  authority,  and  its  only  merits  are  its  novelty  and  ingenuity. 
The  analogy  is,  in  my  opinion,  misleading,  and  to  give  effect  to  this 
contention  would  be  to  legislate  and  introduce  an  entirely  new  law, 


and  not  to  expound  the  law  as  it  is  at  present.    It  would  be  to  render 
many  acts  lawful  which,  as  the  law  stands,  are  clearly  unlawful. 

My  Lords,  I  have  purposely  abstamed  from  using  the  word  "  ma- 
lice." Bearing  in  mind  that  malice  may  or  may  not  be  used  to  denote 
ill-will,  and  that  in  legal  language  presumptive  or  implied  malice  is 
distinguishable  from  express  malice,  it  conduces  to  clearness  in  discus- 
sing such  cases  as  these  to  drop  the  word  "  malice  "  altogether,  and  to 
substitute  for  it  the  meaning  which  is  really  intended  to  be  conveyed 
by  it.  Its  use  may  be  necessary  in  drawing  indictments;  but  when  all 
that  is  meant  by  maUce  is  an  intention  to  commit  an  unlawful  act 
without  reference  to  spite  or  ill-feeling,  it  is  better  to  drop  the  word 
malice  and  so  avoid  all  misunderstanding. 

The  appeal  ought  to  be  dismissed  with  costs. 

Order  of  the  Court  of  Appeal  affirmed  and 
appeal  diamiesed  with  coste} 


JERSEY  CITY  PRINTING  CO.  v.  CASSIDY 

CouBT  OF  Chanceby,  New  Jersey,  Decembeb  11, 1906. 

Reported  in  63  New  Jersey  Equity  ReporUf  769. 

On  motion,  on  order  to  show  cause,  for  an  injunction  to  restrain 
defendants,  former  employes  of  the  complainant,  and  now  on  strike, 
from  unlawful  interference  with  the  complainant's  business,  the  em- 
ployment of  workmen,  &c.    Heard  on  bill,  answer  and  aflSdavits. 

Upon  filing  the  bill  an  order  was  made  restraining  the  defendants 
"  from  in  any  maimer  knowingly  and  intentionally  causing  or  attempt- 
ing to  cause  by  threats,  offers  of  money,  payment  of  money,  offering  to 
pay  or  the  payment  of  transportation  expenses,  inducements  or  per- 
suasions to  any  employe  of  the  complainant  imder  contract  to  render 
service  to  it  to  break  such  contract  by  quitting  such  service;  from  any 
and  all  personal  molestation  of  persons  willing  to  be  employed  by  com- 
plainant with  intent  to  coerce  such  persons  to  refrain  from  entering 
such  employment;  from  addressing  persons  willing  to  be  employed  by 
complainant  against  their  will  and  thereby  causing  them  personal  an- 
noyance with  a  view  to  persuade  them  to  refrain  from  such  employ- 
ment; from  loitering  or  picketing  in  the  streets  near  the  premises  of 

1  Compare  Tunstall  v.  Stems  Coal  Co^  (C.  C.  A.)  192  Fed.  808.  Section  3  of 
the  Trade  Disputes  Act,  6  Edward  7,  Chap.  47,  enacted  Dec.  21,  1906,  is  as 
follows:  — 

''  Sect.  3.  An  act  done  by  a  person  in  contemplation  or  furtherance  of  a  trade 
dispute  shall  not  be  actionable  on  the  ground  only  that  it  induces  some  other  per- 
son to  break  a  contract  of  employment  or  that  it  is  an  interference  with  the  trade, 
business^  or  emplo>rment  of  some  other  person,  or  with  the  right  of  some  other  per- 
son to  dispose  of  his  capital  or  his  labor  as  he  wills." 

See  Smith,  Crucial  Issues  in  Labor  Litigation,  20  Harvard  Law  Rev.  263,  346, 
429. 


( 


898  JERSEY  CITY  PRINTING  CO.  V.  CAS8IDY       [CHAP.  Vm. 

complainant;  Nob.  68  and  70  York  street,  and  No.  37  Montgomery 
street,  Jersey  City,  with  intent  to  procure  the  personal  molestation 
and  annoyance  of  persons  employed  or  willing  to  be  employed  by  com- 
plainant and  with  a  view  to  cause  persons  so  employed  to  quit  their  em- 
plo3nnent,  or  persons  willing  to  be  employed  by  complainant  to  refrain 
from  such  emplo3rment;  from  entering  the  premises  of  complainant, 
Nob.  68  and  70  York  street,  Jersey  City,  against  its  will  with  intent 
to  interfere  with  its  business;  from  violence,  threats  of  violence,  in- 
sults, indecent  talk,  abusive  epithets  practiced  upon  any  persons  with- 
out their  consent  with  intent  to  coerce  than  to  refrain  from  entering 
the  employment  of  complainant,  or  to  leave  its  anployment." 

Stevenson,  V.  C.  (orally).  The  bill  is  filed  to  restrain  a  body  of 
workmen,  who  are  on  a  strike,  and  other  persons  associated  with  than, 
from  doing  certain  things  which  are  alleged  to  be  injurious  to  the 
45omplainant,  their  former  employer.  The  thing?  that  they  are  re- 
strained from  doing  are  specified  in  the  restraining  order.  That  order 
was  not  made  hastily.  It  was  formulated  with  care  on  the  part  of 
the  court,  and  I  do  not  understand  that  counsel  for  the  defendant 
criticises  its  terms  on  the  ground  that  they  are  too  broad.  The 
defence  is  that  the  persons  who  are  enjoined  have  not  been  doing, 
and  are  not  threatening  now  to  do,  any  of  those  things  that  are 
interdicted.  That  is  the  sum  and  substance  of  the  defence,  which 
has  been  presented  by  a  great  many  aflSdavits  and  with  very  great 
force. 

The  order  does  not  interfere  with  the  right  of  the  workman  to  cease 
his  employment  for  any  reasons  that  he  deems  sufiScient.    It  does  not 
undertake  to  say  that  workmen  may  not  refuse  to  be  employed  if  cer- 
tain other  classes  of  workmen  are  retained  in  employment.    It  leaves 
/  the  workman  absolutely  free  to  abstain  from  work  — .  for  good  reasons, 
for  bad  reasons,  for  no  reasons.    His  absolute  freedom  to  work,  or  not 
i  to  work,  is  not  in  any  way  impairM.    The  restraining  order  is  based 
upon  the  theory  that  the  right  of  the  workman  to  cease  his  employ- 
'  ment,  to  refuse  to  be  employed,  and  to  do  that  in  conjunction  with 
;   his  fellow-workmen,  is  just  as  absolute  as  is  the  right  of  the  employer 
!    to  refuse  further  to  employ  one  man,  or  ten  men,  or  twenty  men  who 
^  have  theretofore  been  in  his  employment.    From  an  examination  of 
f    the  cases  and  a  very  careful  consideration  of  the  subject  I  am  unable 
to  discover  any  right  in  the  courts,  as  the  law  now  stands,  to  interfere 
with  this  absolute  freedom  on  the  part  of  the  employer  to  employ 
whom  he  will,  and  to  cease  to  employ  whom  he  will;  and  the  corre- 
sponding freedom  on  the  part  of  the  workman,  for  any  reason  or  no 
reason,  to  say  that  he  will  no  longer  be  employed;  and  the  further 
right  of  the  workmen,  of  their  own  free  will,  to  combine  and  meet  as 
one  party,  as  a  unit,  tiie  employer  who,  on  the  other  side  of  the  trans- 
action, appears  as  a  unit  before  them.   Any  discussion  of  the  motives, 
pxupoBes  or  intentions  of  the  employer  in  exercising  his  absolute  ri^t 


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to  employ  or  not  to  employ  as  he  sees  fit,  or  of  the  free  combination  of 
employes  in  exercising  the  corresponding  absolute  right  to  be  em- 
ployed or  not  as  they  see  fit,  seems  to  me  to  be  in  the  air. 

Thus,  there  is  a  wide  field  in  which  employes  may  combine  and 
exercise  the  arbitrary  right  of  "  dictating  "  to  their  conmion  employer 
"  how  he  shall  conduct  his  business."  The  exact  correlative  of  this 
right  of  the  employe  exists,  in  an  equal  degree,  in  the  employer.  He 
may  arbitrarily  "  dictate  "  to  five  thousand  men  in  his  employ  in  re- 
gard to  matters  in  respect  of  which  their  conduct  ought,  according 
to  correct  social  and  ethical  principles,  to  be  left  entirely  free.  But  if 
the  "  dictation  "  is  backed  up  solely  by  the  announcement  that,  if  it 
is  not  submitted  to,  the  dictating  party  will  refrain  from  employing, 
or  refrain  from  being  employed,  as  the  case  may  be,  no  legal  or 
equitable  right  belonging  to  the  party  dictated  to,  which  I  am  able  to 
discern,  is  thereby  invaded. 

Some  of  the  expressions  which  I  have  used,  and  which  are  commonly 
used,  in  relation  to  this  subject  seem  to  me  to  be  misleading.  Union 
workmen  who  inform  their  employer  that  they  will  strike  if  he  refuses 
to  discharge  all  non-union  workmen  in  his  employ  are  acting  within 
their  absolute  right,  and,  in  fact,  are  merely  dictating  the  terms  upon 
which  they  will  be  employed.  All  such  terms  necessarily  relate  both 
to  "  how  the  employer  shall  conduct  his  business  "  and  how  the  em- 
ployes shall  conduct  their  business. 

The  doctrine  of  the  old  cases,  of  which  we  have  in  New  Jersey  an 
interesting  example  in  State  v.  Donaldson,  3  Vr.  151,  which  placed  / 
the  employe,  when  acting  in  combination  with  his  fellow-workmen,  at  I 
a  tremendous  disadvantage  as  compared  with  his  employer,  I  think  A 
may  be  regarded  as  entirely  exploded.    The  authority  of  the  deliver- 
ances of  the  supreme  court  in  State  v.  Donaldson  was  largely,  if  not 
entirely,  abolished  by  statute  in  1883. 

The  principles  which  I  have  endeavored  to  state  are  all  recognized 
in  the  restraining  order  in  this  case,  and  are  so  plainly  recognized  that 
the  intelligent  and  industrious  counsel  for  the  defendants  is  imable  to 
point  out  any  respect  wherein  the  terms  of  the  order  should  be  modi- 
fied. The  things  which  the  restraining  order  interdicts  are  things 
which,  for  the  purposes  of  this  argument,  it  is  practically  conceded 
the  defendants  have  no  right  to  do. 

In  this  situation  of  the  case  it  woiJd  seem  to  be  unnecessary  to 
further  consider  the  legal  propriety  of  the  restraining  order,  much 
less  to  take  it  up  clause  by  clause.  I  have,  however,  pointed  out  what 
conduct  on  the  part  of  the  defendants  is  excluded  from  the  operation 
of  this  order,  and  I  think  that  it  is  fair  to  all  the  parties  to  this  suit 
who  are  concerned  in  the  maintenance  of  the  restraining  order  to  ex- 
plain, at  least  in  a  general  way,  what  conduct  is  included  within  its 
prohibition.  This  can  be  most  conveniently  done  by  making  plain  the 
most  important  principles  embodied  in  the  order  —  principles  which 


practically  have  been  developed  by  the  courts  of  this  country  and 
En^and  during  the  last  five  or  ten  years. 

The  injunction  in  strike  and  boycott  cases  is  of  very  recent  use. 
Already  a  wide  difference  of  opinion  has  been  developed  among  judges 
in  regard  to  the  liabiUty  of  a  combination  of  workmen  to  actions  at 
law  for  damages  and  suits  in  equity  for  an  injunction. 

It  is  only  very  recently,  I  think,  that  one  of  the  most  important 
rights  which  now  are  vindicated  by  the  injunction  in  a  strike  case  has 
been  differentiated;  in  many  cases  it  has  been  apparently  half  recc^- 
nized  or  indirectly  enforced. 

That  the  interest  of  an  employer  or  an  employe  in  a  contract  for 
services  is  property  is  conceded.  Where  defendants,  in  combination  or 
individually,  undertake  to  interfere  with  and  disrupt  existing  con- 
tract relations  between  the  employer  and  the  employe,  it  is  plain  that 
a  property  right  is  directly  invaded.  The  effect  is  the  same  whether 
the  means  employed  to  cause  the  workman  to  break  his  contract,  and 
thus  injure  the  employer,  are  violence  or  threats  of  violence  against 
the  employe  or  mere  molestation,  annoyance,  or  persuasions.  In  all 
these  cases,  whatever  the  means  may  be,  they  constitute  the  cause  of 
the  breaking  of  a  contract,  and  consequently  they  constitute  the  natu- 
ral and  proximate  cause  of  damage.  The  intentional  doing  of  any- 
thing by  a  third  party  which  is  the  natural  and  proximate  cause  of 
the  disruptiou  of  a  contract  relation,  to  the  injury  of  one  of  the  con- 
tracting parties,  is  now  very  generally  recognized  as  actionable,  in  the 
absence  of  a  sufficient  justification,  and  the  question,  in  every  case, 
seems  to  turn  upon  justification  alone. 

Where  the  taiigible  property  of  an  employer  is  seized  or  directly 
injured  by  violence,  with  intent  to  interfere  with  the  canying  on  of 
his  business,  the  case,  also  is  free  from  embarrassment. 

In  the  case  of  FrarJc  v.  Herold,  18  Dick.  Ch.  Rep.  443,  Vice-Chan- 
cellor  Pitney  amply  discussed  the  whole  subject  of  the  unlawfulness 
of  molestation  and  annoyance  of  employes,  with  intent  and  with  the 
effect  to  induce  them  to  abandon  their  employment,  to  the  injury  of 
their  employer's  business. 

But  the  difficult  case  presents  itself  when  the  workmen  in  combina- 
tion undertake  to  interfere  with  the  freedom  of  action  on  the  part 
of  other  workmen  who  naturally  would  seek  employment  where  they 
(the  workmen  in  combination)  desire  and  intend  that  no  nxan  shall  be 
employed  excepting  upon  their  terms. 

The  difficulty  is  in  perceiving  how  molestation  and  annoyance,  not 
of  the  employes  of  a  complainant,  but  of  persons  who  are  merely 
looking  for  work  and  may  become  employes  of  the'  complainant,  can 
be  erected  into  a  legal  or  equitable  grievance  on  the  part  of  the  com- 
plainant. But  the  difficulty  is  still  further  increased  where  the  pos- 
sible employes  make  no  complaint  to  any  court  for  protection,  and 
the  conduct  of  the  molesting  party  does  not  afford  a  basis  which  the 


ancient  oonunon  law  recognized  as  sufficient  to  support  an  action  of 
tort  on  their  behalf,  such  as  for  an  assault  and  battery  or  a  slander. 
Abusive  language  is  not  necessarily  actionable  at  the  common  law. 
If  to  call  a  man  a  "  scab  "  in  the  street  or  to  follow  him  back  and 
forth  from  his  home  to  his  place  of  employment  was  formerly  not 
actionable  on  behalf  of  the  victim  of  this  petty  annoyance,  the  problem 
is  to  imderstand  how  one  who  is  merely  the  victim's  possible  employer 
can  complain,  either  at  law  or  in  equity,  there  being  no  actual  con- 
tract for  service,  but  only  a  potential  one,  interfered  with. 

It  is  easier,  I  think,  to  obtain  a  correct  idea  of  the  legal  and  equitable 
right  which  underUes  many  of  the  injunctions  which  have  been  granted 
in  these  strike  cases  restraining  combinations  of  workmen  from  inter- 
fering with  the  natural  supply  of  labor  to  an  employer^  by  means  of 
molestation  ana  personal  annoyance,  i^  we  exclude  from  consideration 
the  conduct  of  the  defendants  ajs  a  cause  of  action  on  behalf  of  the 
immediate  victims  of  their  molestation  —  t.  6.,  of  the  workman  or 
workmen  whom  the  combination  are  seeking  to  deter  from  entering 
into  the  employment  which  is  oflEered  to  them,  and  which  they,  if  let 
alcme,  would  wish  to  accept.  I  say  this,  although  I  firmly  believe  that 
the  molested  workman,  seeking  employment  and  unreasonably  inter- 
fered with  in  this  effort  by  a  combination,  has  an  action  for  damages 
at  common  law,  and,  where  the  molestation  is  repeated  and  persistent, 
has  the  same  right  to  an  injunction,  in  equity,  which,  under  the  same 
circumstances,  is  accorded  to  his  contemplated  employer. 

The  imderl3ring  right  in  this  particular  case  under  consideration, 
which  seems  to  be  coming  into  general  recognition  as  the  subject  of 
protection  by  courts  of  equity,  through  the  instrumentaUty  of  an  in- 
junction, appears  to  be  the  right  to  enjoy  a  certain  free  and  natural 
condition  of  the  labor  market,  which,  in  a  recent  case  in  the  House  of 
Lords,  was  referred  to,  in  the  language  of  Lord  Ellenborough,  as  a 
"  probable  expectancy."  This  imderljdng  right  has  otherwise  been 
broadly  defined  or  described  as  the  right  which  every  man  has  to  earn 
his  Uving,  or  to  pursue  his  trade  or  business,  without  undue  interfer- 
ence, and  might  otherwise  be  described  as  the  right  which  every  man 
has,  whether  employer  or  employe,  of  absolute  freedom  to  employ  or 
to  be  employed.  The  peculiar  element  of  this  perhaps  newly-recog- 
nized right  is  that  it  is  an  interest  which  one  man  has  in  the  freedom  of 
another.  In  the  case  before  this  court  the  Jersey  City  Printing  Com- 
pany claims  the  right,  not  only  to  be  free  in  enploying  labor,  but  also 
the  right  that  labor  shall  be  free  to  be  employed  by  it,  the  Jersey  City 
Printing  Company. 

A  large  part  of  what  is  most  valuable  in  modem  life  seems  to  de- 
pend more  or  less  directly  upon  "  probable  expectancies."  When  they 
fail,  civilization,  as  at  present  organized,  may  go  down.  As  social  and 
industrial  life  develops  and  grows  more  complex  these  "  probable  ex- 
pectancies "  are  bound  to  increase.    It  would  seem  to  be  inevitable 


/ 


that  courts  of  law,  as  our  system  of  jurisprudence  is  evolved  to  meet 
the  growing  wants  of  an  increasingly  complex  social  order,  will  dis- 
cover, define  and  protect  from  undue  interference  more  of  these 
"  probable  expectancies/' 

In  undertaking  to  ascertain  and  define  the  rights  and  remedies  of 
employers  and  employes,  in  respect  of  their  "  probable  expectancies  '' 
in  relation  to  the  labor  market,  it  is  well  not  to  lose  sight  altogether 
of  any  other  analogous  rights  and  remedies  which  are  based  upon 
similar  "  probable  expectancies."  It  will  probably  be  found  in  the 
end,  I  think,  that  the  natural  expectancy  of  employers  in  relation  to 
the  labor  market  and  the  natural  expectancy  of  merchants  in  respect 
to  the  merchandise  market  must  be  recognized  to  the  same  extent  by 
courts  of  law  and  courts  of  equity  and  protected  by  substantially  the 
same  rules. 

It  is  freedom  in  the  market,  freedom  in  the  pim^hase  and  sale  of  all 
things,  including  both  goods  and  labor,  that  our  modem  law  is  en- 
deavoring to  insure  to  every  dealer  on  either  side  of  the  market.  The 
valuable  thing  to  merchant  and  to  customer,  to  employer  and  to  em- 
ploye, manifestly  is  freedom  on  both  sides  of  the  market.  The  mer- 
chant, with  his  fortune  invested  in  goods  and  with  perfect  freedom  to 
sell,  might  be  ruined  if  his  customers  were  deprived  of  their  freedom 
to  buy;  the  purchaser,  a  householder,  seeking  supplies  for  his  family, 
with  money  in  his  pocket  and  free  to  buy,  might  find  his  liberty  of  no 
value  and  might  suffer  from  lack  of  food  and  clothing  if  the  shopmen 
who  deal  in  these  articles  were  so  terrorized  by  a  powerful  combination 
as  to  be  coerced  into  refusing  to  sell  either  food  or  clothing  to  him. 

It  is,  however,  the  right  of  the  employer  and  employe  to  a  free 
labor  market  that  is  the  particular  thing  under  consideration  in  this 
case. 

A  man  establishes  a  large  factory  where  working  people  reside,  tak- 
ing the  risk  of  his  being  able  to  conduct  his  industry  and  offer  these 
working  people  emplo3rment  which  they  will  be  willing  to  accept.  He 
takes  the  risk  of  destructive  competition  and  a  large  number  of  other 
risks,  out  of  which,  at  any  time,  may  come  his  financial  ruin  and  the 
suspension  of  his  manufacturing  works.  But  our  law,  in  its  recent 
development,  undertakes  to  insure  to  him,  not  only  that  he  may  em- 
ploy whom  he  pleases,  but  that  all  who  wish  to  be  employed  by  him 
may  enter  into  and  remain  in  such  emplo3rment  freely,  without  threats 
of  harm,  without  unreasonable  molestation  and  annoyance  from  the 
words,  actions  or  other  conduct  of  any  other  persons  acting  in  com- 
bination. What  is  the  measure  or  test  by  which  the  conduct  of  a  com- 
bination of  persons  must  be  judged  in  order  to  determine  whether  or 
not  it  is  an  unlawful  interference  with  freedom  of  employment  in  the 
labor  market,  and  as  such  injurious  to  an  employer  of  labor  in  respect 
of  his  "  probable  expectancies,"  has  not  as  yet  been  clearly  defined. 
Perhaps  no  better  definition  could  be  suggested  than  that  which  may 


be  framed  by  conveniently  using  that  important  legal  fictitious  person 
who  has  taken  such  a  large  part  in  the  development  of  om-  law  during 
the  last  fifty  years  —  the  reasonably  prudent,  reasonably  courageous 
and  not  unreasonably  sensitive  man.  Precisely  this  same  standard  is 
employed  throughout  the  law  of  nuisance  in  determining  what  degree 
of  annoyance  on  the  part  of  one's  neighbor  one  must  submit  to,  and 
what  degree  of  such  annoyance  is  excessive  and  the  subject  of  an  action 
for  damages  or  a  suit  for  an  injunction. 

A  man  may  not  be  liable  to  an  action  for  slander  for  calling  a  work- 
man a  "  scab  "  in  the  street,  but  if  a  hundred  men  combine  to  have 
this  workman  denounced  as  a  "scab  "  in  the  street,  or  followed  in  the 
streets  to  and  from  his  home,  so  as  to  attract  public  attention  to  him 
and  place  him  in  an  annoyingly  conspicuous  position,  such  conduct, 
the  result  of  such  combination,  is  held  to  be  an  invasion  of  the  "  prob- 
able expectancy"  of  his  employer  or  contemplated  employer,  an 
invasion  of  this  employer's  right  to  have  labor  flow  fredy  to  him.  With- 
out any  regard  to  the  rights  and  remedies  which  the  molested  work- 
man may  have,  the  injunction  goes  at  the  suit  of  the  employer  to 
protect  his  "  probable  expectancy  "  —  to  secure  freedom  in  the  labor 
market  to  employ  and  to  be  employed,  upon  which  the  continuance  of 
his  entire  industry  may  depend. 

I  think  it  is  safe  to  say  that  all  through  this  development  of  strike 
law,  during  the  last  decade,  no  principle  becomes  established  which 
does  not  operate  equally  upon  both  employer  and  employe.  The  rights 
of  both  classes  are  absolutely  equal  in  respect  of  all  these  "  probable 
expectancies."  An  operator  upon  printing  machines  has  the  right  to 
oflFer  his  labor  freely  to  any  of  the  printing  shops  in  Jersey  City.  These 
shops  may  all  combine  to  refuse  to  employ  him  on  account  of  his  race, 
or  membership  in  a  labor  union,  or  for  any  other  reason,  or  for  no 
reason,  precisely  as  twenty  employes  in  one  printing  shop  may  com- 
bine and  arbitrarily  refuse  to  be  further  employed  unless  the  business 
is  conducted  in  accordance  with  their  views.  But  in  the  case  of  the 
operative  seeking  employment,  he  has  a  right  to  have  the  action  of  the 
masters  of  the  printing  shops,  in  reference  to  employing  him,  left 
absolutely  free.  If,  after  obtaining,  or  seeking  to  obtain,  emplo3rment 
in  a  shop,  the  master  of  that  shop  should  be  subjected  to  annoyances 
and  molestation,  instigated  by  the  proprietors  of  other  printing  shops, 
who  combine  to  compel  by  such  molestation  and  annoyance,  this  one 
master  printer,  against  his  will  and  wish,  to  exclude  the  operative  from 
employment,  this  operative,  in  my  judgment,  would  have  a  right  to 
an  action  at  law  for  damages,  and  would  have  a  right  to  an  injunction 
if  his  case  presented  the  other  ordinary  conditions  upon  which  injunc- 
tions issue.  But  the  common  law  courts  have  not  had  time  to  speak 
distinctly  on  this  subject  as  yet,  and  it  is  necessary  to  be  cautious  in 
dealing  with  a  subject  in  which  both  courts  of  law  and  courts  of  equity 
as  yet  are  feeling  their  way. 


r 


904  JERSEY  CITY  PRINTING  CO.  V.  CASSIDY       [CHAP.  VIU. 

I  think  that  the  leading  principle  enforced  in  the  restraining  order 
in  this  case  is  not  inconsistent  with  any  authorities  which  control  this 
court.  This  principle  is  that  a  combination  of  employers,  or  a  com- 
bination of  employes,  the  object  of  which  is  to  interfere  with  the 
freedom  of  the  employer  to  employ,  or  of  the  employe  to  be  employed 
(in  either  of  which  cases  there  is  an  interference  with  the  enjo3nnent 
of  a  "  probable  expectancy,"  which  the  law  recognizes  as  something 
in  the  nature  of  property),  by  means  of  such  molestation  or  personal 
annoyance  as  would  be  liable  to  coerce  the  person  upon  whom  it  was 
inflicted,  assuming  that  he  is  reasonably  courageous  and  not  unreason- 
ably sensitive,  to  refrain  from  employing  or  being  employed,  is  illegal 
and  founds  an  action  for  damages  on  the  part  of  any  person  know- 
ingly injured  in  respect  of  his  "  probably  expectancy  "  by  such  inter- 
ference, and  also,  when  the  other  necessary  conditions  exist,  affords 
the  basis  of  an  injunction  from  a  court  of  equity. 

The  doctrine  which  supports  that  portion  of  the  restraining  order 
in  this  case  which  undertakes  to  interdict  the  defendants  from  molest- 
ing applicants  for  employment  as  an  invasion  of  a  right  of  the  com- 
plainant, is  appUcable  to.  a  situation  presenting  either  an  employer  or 
an  employe  as  complainant,  and  containing  the  foUowing  elements: 

First.  Some  person  or  persons  desiring  to  exercise  the  right  of  em-^ 
ploying  labor,  or  the  right  of  being  employed  to  labor. 

Second.  A  combination  of  persons  to  interfere  with  that  right, 
by  molestation  or  annoyance,  of  the  employers  who  would  employ, 
or  of  the  employes  who  would  be  employed,  in  the  absence  of  such 
molestation. 

How  far  the  element  of  combination  of  a  number  of  persons  will 
finally  be  found  necessary,  in  order  to  make  out  the  invasion  of  a  legal 
or  equitable  right  in  this  class  of  cases,  need  not  be  discussed.  We  are 
dealing  with  cases  where  powerful  combinations  of  large  numbers,  in 
fact,  exist. 

Third.  Such  a  degree  of  molestation  as  might  constrain  a  person 
having  reasonable  fortitude,  and  not  being  imreasonably  sensitive,  to 
abandon  his  intention  to  employ  or  to  be  employed,  in  order  to  escape 
such  molestation. 

Fourth.  As  the  result  of  the  foregoing  conditions,  an  actual  pecu- 
niary loss  to  the  complaining  party,  by  the  interference  with  his  en- 
joyment of  his  "  probable  expectancies  "  in  respect  of  the  labor 
market. 

I  do  not  think  that  the  constraining  force  brought  to  bear  upon  the 
employer  or  employe  which  the  law  can  interdict  can  ever  include  the 
power  of  public  opinion  or  even  of  class  opinion.  Every  man,  whether 
an  employer  or  an  employe,  constitutes  a  part  of  a  great  industrial 
system,  and  his  conduct  is  open  to  the  criticism  of  the  members  of 
his  own  class.  While,  therefore,  a  combination  of  union  men  have  no 
right  to  cry  "  scab  ''  in  the  streets  to  non-union  employes,  or  follow 


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them  in  the  street  in  a  body  to  and  from  their  homes,  or  do  many 
other  things  in  combination,  which,  if  done  once  by  a  single  individual, 
would  not  found  an  action  of  tort,  such  combinations,  I  think,  have 
left  a  fairly  wide  field  of  eflfort  towards  the  creation  and  application 
of  public  opinion  as  a  constraining  force  upon  conduct  of  any  kind 
which  they  wish  to  discourage. 

I  have  endeavored  to  explain,  in  a  general  way,  my  own  view  of 
the  most  important  and  least  understood  principle  embodied  in  the 
restraining  order  in  this  case,  in  order  that  the  defendants,  and,  in 
fact,  all  parties  interested,  may  have  all  possible  light  in  construing 
and  applying  the  exact  teims  of  the  order.  What  I  have  said  may 
be  found  to  be  subject  to  modifications,  without  subjecting  the  terms 
of  the  order  to  any  change.  All  geuCTalizations  on  such  a  subject  — 
such  a  novel  subject  as  the  one  under  consideration  —  are  dangerous. 
There  may  be  conduct  on  the  part  of  a  combination  of  employers,  or 
of  employes,  which  would  seem  to  come  within  the  general  definition 
or  description  of  illegal  and  prohibited  conduct,  which  I  have  at- 
tempted to  frame,  but  which  conduct,  nevertheless,  might  be  justified, 
and  hence  could  not  be  adjudged  illegal.  Molestation  and  personal 
annoyance,  however,  the  teims  which  I  have  employed,  do  not  seem  to 
be  inclusive  of  any  justifiable  conduct,  especially  if  no  one  is  allowed 
to  complain  that  he  is  molested  or  annoj^  by  being  subjected  peace- 
ably to  the  judgment  and  criticism  of  public  opinion. 

The  vice-chanceUor  then  discussed  at  length  the  effect  of  the  answer 
of  the  defendants  and  the  affidavits  annexed  thereto,  which  denied  all 
the  charges  of  interference  with  existing  labor  contracts  or  molesta- 
tion practiced  to  prevent  new  workmen  from  being  employed.  The 
conclusion  was  that,  notwithstanding  such  denials,  even  when  sus- 
tained by  the  greater  weight  of  evidence,  the  restraining  order  should 
be  held  in  force  as  to  those  defendants  who  stood  fairly  charged,  under 
oath,  with  the  interdicted  misconduct,  and  should  be  vacated  as  to 
any  other  defendants  not  so  charged;  that  the  sole  issue  appeared  to 
be  one  of  fact,  viz.,  whether  the  defendants  had  done,  and  were 
threatening  to  do,  the  acts  complained  of  or  not,  and  that  such  an 
issue  could  not  properly  be  tried  on  ex  parte  affidavits,  but  should  be 
reserved  for  the  final  hearing;  that  in  a  case  like  this,  where  the  de- 
fendants were  the  only  persons  in  sight  apparently  interested  in  hav- 
ing the  unlawful  conduct  complained  of  continued,  and  were  therefore 
subjected  to  a  temptation  to  cause  such  conduct  to  be  continued,  an 
injunction  which  merely  prevented  them  from  doing  acts  which  they 
disclaimed  any  right  to  do,  and  denied  that  they  had  done  or  threat- 
ened to  do,  should  be  retained  until  the  final  hearing. 


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the  mogul  steamship  company  limited  v. 
McGregor  &  company 

In  the  Court  of  Appeal,  July  13, 1889. 
Reported  in  Law  Reports^  23  Queen's  Bench  Dwiaionf  598. 

BowEN,  L.  J.^  We  are  presented  in  this  ease  with  an  apparent  con- 
flict or  antinomy  between  two  rights  that  are  equally  regarded  by  the 
law  —  the  right  of  the  plaintiffs  to  be  protected  in  the  Intimate 
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.  The  plaintiffs  complain  ijiat  the  defendants  have  crossed  the 
line  which  the  common  law  permits;  and  inasmuch  as,  for  the  purposes 
of  the  present  ease,  we  are  to  assume  some  possible  damage  to  the 
plaintiffs,  the  real  question  to  be  decided  is  whether,  on  such  an  as- 
sumption, the  defendants  in  the  conduct  of  their  commercial  affairs 
have  done  anything  that  is  unjustifiable  in  law.  The  defendants  are 
a  number  of  ship-owners  who  formed  themselves  into  a  league  or  con- 
ference for  the  purpose  of  ultimately  keeping  in  their  own  hands  the 
control  of  the  tea  carriage  from  certain  Chinese  ports,  and  for  the 
purpose  of  driving  the  plaintiffs  and  other  competitors  fix)m  the  field. 
In  order  to  succeed  in  this  object,  and  to  discourage  the  plaintiffs' 
vessels  from  resorting  to  those  ports,  the  defendants  dining  the  "  tea 
harvest "  of  1885  combined  to  offer  to  the  local  shippers*  very  low 
freights,  with  a  view  of  generally  reducing  or  *'  smaRhing  "  rates,  and 
thus  rendering  it  unprofitable  for  the  plaintiffs  to  send  their  ships 
thither.  They  offered,  moreover,  a  rebate  of  five  per  cent  to  all  local 
shippers  and  agents  who  would  deal  exclusively  with  vessels  belonging 
to  the  Conference,  and  any  agent  who  broke  tie  condition  was  to  for- 
feit the  entire  rebate  on  all  shipments  made  on  behalf  of  any  and  every 
one  of  his  principals  dining  the  whole  year  —  a  forfeiture  of  rebate  or 
allowance  which  was  denominated  as  "  penal "  by  the  plaintiffs'  coun- 
sel. It  must,  however,  be  taken  as  established  that  the  rebate  was  one 
which  the  defendants  need  never  have  allowed  at  all  to  their  cus- 
tomers. It  must  also  be  taken  that  the  defendants  had  no  personal 
ill-will  to  the  plaintiffs,  nor  any  desire  to  harm  them  except  such  as  is 
involved  in  the  wish  and  intention  to  discourage  by  such  measures  the 
plaintiffs  from  sending  rival  vessels  to  such  ports.  The  acts  of  which 
the  plaintiffs  particularly  complained  were  as  follows:  —  First,  a  cir- 
cular of  May  10,  1885,  by  which  the  defendants  offered  to  the  local 
shippers  and  their  agents  a  benefit  by  way  of  rebate  if  they  would  not 
deal  with  the  plaintiffs,  which  was  to  be  lost  if  this  condition  was  not 
fulfilled.  Secondly,  the  sending  of  special  ships  to  Hankow  in  order 
by  competition  to  deprive  the  plaintiffs'  vessels  of  profitable  freight. 

*  Only  the  opinion  of  Bowen,  L.  J.,  is  given.  Fry,  L.  J.,  concurred,  but  Lord 
Esher,  M.  R.,  dissented.  The  decision  was  afterwards  affirmed  in  the  House  of 
Lords,  [1892]  A.  C.  25. 


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CHAP.  VIII.]       MOGUL  STEAMSHIP  CO.  V.  MCGREGOR  &  CO.        907 

Thirdly,  the  oflFer  at  Hankow  of  freights  at  a  level  which  would  not 
repay  a  shipowner  for  his  adventure,  in  order  to  "  smash  "  freights  and 
frighten  the  plaintiffs  from  the  field.  Fourthly,  pressure  put  on  the 
defendants'  own  agents  to  induce  them  to  ship  only  by  the  defendants' 
vessels,  and  not  by  those  of  the  plaintiffs.  It  is  to  be  observed  with 
regard  to  all  these  acts  of  which  complaint  is  made  that  they  were  acts 
that  in  themselves  could  not  be  said  to  be  illegal  unless  made  so  by  the 
object  with  which,  or  the  combination  in  the  course  of  which,  they 
were  done;  and  that  in  reaUty  what  is  complained  of  is  the  pursuing 
of  trade  competition  to  a  length  which  the  plaintiffs  consider  oppres- 
sive and  prejudicial  to  themselves.  We  were  invited  by  the  plabitiffs' 
counsel  to  accept  the  position  from  which  their  argument  started  — 
that  an  action  will  lie  if  a  man  maUciously  and  wrongfully  conducts 
himself  so  as  to  injure  another  in  that  other's  trade.  Obscurity  resides 
in  the  language  used  to  state  this  proposition.  The  tenns  "  maU- 
ciously," "  wrongfully,"  and  "  injure  "  are  words  all  of  which  have 
accurate  meanings,  well  known  to  the  law,  but  which  also  have  a  popu- 
lar and  less  precise  signification,  into  which  it  is  necessary  to  see  that 
the  argument  does  not  imperceptibly  slide.  An  intent  to  "  injure  "  in 
strictness  means  more  than  an  intent  to  harm.  It  connotes  an  intent 
to  do  wrongful  harm.  *'  MaUciously,"  in  like  manner,  means  and  im- 
pUes  an  intention  to  do  an  act  which  is  wrongful,  to  the  detriment  of 
another.  The  term  "  wrongful  "  imports  in  its  turn  the  infringement 
of  some  right.  The  ambiguous  proposition  to  which  we  were  invited 
by  the  plaintiffs'  counsel  still,  therefore,  leaves  imsolved  the  question 
of  what,  as  between  the  plaintiffs  and  defendants,  are  the  rights  of 
trade.  For  the  purpose  of  clearness,  I  desire,  as  far  as  possible,  to 
avoid  terms  in  their  popular  use  so  sUppery,  and  to  translate  them  into 
less  fallacious  language  wherever  possible. 

The  English  law,  which  in  its  earUer  stages  began  with  but  an  im- 
perfect line  of  demarcation  between  torts  and  breaches  of  contract, 
presents  us  with  no  scientific  analysis  of  the  degree  to  which  the  intent 
to  hann,K)r,  in  the  language  of  the  civil  law,  the  animtia  vicino  nocendi, 
may  enter  into  or  affect  the  conception  of  a  personal  wrong;  see 
Chasemore  v.  Richards,  7  H.  L.  C.  349,  at  p.  388.  All  personal  wrong 
means  the  infringement  of  some  personal  right.  "  It  is  essential  to  an 
action  in  tort,"  say  the  Privy  Council  in  Rogers  v.  Rajendro  Dutt, 
13  Moore,  P.  C.  209,  "  that  the  act  complained  of  should  imder  the 
circumstances  be  legally  wrongful  as  regards  the  party  complaining; 
that  is,  it  must  prejudicially  affect  him  in  some  legal  right;  merely 
that  it  will,  however  directly,  do  a  man  harm  in  his  interests,  is  not 
enough."  What,  then,  were  the  rights  of  the  plaintiffs  as  traders  as 
against  the  defendants  ?  The  plaintiffs  had  a  right  to  be  protected 
against  certain  kind  of  conduct;  and  we  have  to  consider  what  conduct 
would  pass  this  legal  line  or  boundary.  Now,  intentionally  to  do  that 
which  is  calculated  in  the  ordinary  course  of  events  to  damage^  and 


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which  does,  in  fact,  damage  another  in  that  other  person's  property  or 
trade,  is  actionable  if  done  without  just  cause  or  excuse.  Such  in- 
tentional action  when  done  without  just  cause  or  excuse  is  what  the 
law  calls  a  malicious  wrong  (see  Bromage  v.  Prosser;  Capital  and 
Counties  Bank  v.  Henty,  per  Lord  Blackburn,  7  App.  Cas.  741,  at 
p.  772).  The  acts  of  the  defendants  which  are  complained  of  here 
were  intentional,  and  were  also  calculated,  no  doubt,  to  do  the  plain- 
tiffs damage  in  their  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.  Such  just  cause  or  excuse  the  de- 
fendants on  their  side  assert  to  be  found  in  their  own  positive  right 
(subject  to  certain  limitations)  to  carry  on  their  own  trade  freely  in 
the  mode  and  manner  that  best  suits  them,  and  which  they  think  best 
calculated  to  secure  their  own  advantage. 

What,  then,  are  the  limitations  which  the  law  impose^  on  a  trader  in 
the  conduct  of  his  business  as  between  himself  and  other  traders  ? 
There  seem  to  be  no  burdens  or  restrictions  in  law  upon  a  trader  which 
arise  merely  from  the  fact  that  he  is  a  trader,  and  which  are  not  equally 
laid  on  all  other  subjects  of  the  Crown.  His  right  to  trade  freely  is 
a  right  which  the  law  recognizes  and  encourages,  but  it  is  one  which 
places  him  at  no  special  disadvantage  as  compared  with  others.  No 
man,  whether  trader  or  not,  can,  however,  justify  damaging  another  in 
his  commercial  business  by  fraud  or  misrepresentation.  Intimidation, 
obstruction,  and  molestation  are  forbidden;  so  is  the  intentional  pro- 
curement of  a  violation  of  individual  rights^  contractual  or  other,  as- 
simung  always  that  there  is  no  just  cause  for  it.  The  intentional 
driving  away  of  customers  by  show  of  violence,  Tarleton  v.  M'Gawley, 
Peake,  205;  the  obstruction  of  actors  on  the  stage  by  preconcerted 
hissing,  Clifford  v.  Brandon,  2  Camp.  358,  Gregory  v.  Brunswick, 
13  L.  J.  C.  P.  34;  the  disturbance  of  wild  fowl  in  decoys  by  the  firing 
of  guns,  Carrington  v.  Taylor,  11  East,  571,  and  Keeble  v.  Hicker- 
ingiU,  11  East,  574  note;  the  impeding  or  threatening  servants  or 
workmen.  Garret  v,  Taylor,  Cro.  Jac.  567;  the  inducing  persons  under 
personal  contracts  to  break  their  contracts,  Bowen  v.  Hall,  Lumley  v. 
Gye,  —  all  are  instances  of  such  forbidden  acts.  But  the  defendsmts 
have  been  guilty  of  none  of  these  acts.  They  have  done  nothing  more 
against  the  plahitififs  than  pursue  to  the  bitter  end  a  war  of  competi- 
tion waged  in  the  interest  of  their  own  trade.  To  the  argument  that 
a  competition  so  pursued  ceases  to  have  a  just  cause  or  excuse  when 
there  is  ill-will  or  a  personal  intention  to  harm,  it  is  sufficient  to  reply 
(as  I  have  already  pointed  out)  that  there  was  here  no  personal  in- 
tention to  do  any  other  or  greater  harm  to  the  plaintiffs  than  such  as 
was  necessarily  involved  in  the  desire  to  attract  to  the  defendants' 
ships  the  entire  tea  freights  of  the  ports,  a  portion  of  which  would 
otherwise  have  fallen  to  the  plaintiffs'  share.  I  can  find  no  authority 
for  the  doctrine  that  such  a  commercial  motive  deprives  of  "  just  cause 


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or  excuse  "  acts  done  in  the  course  of  trade  which  would  but  for  such  a 
motive  be  justifiable.  So  to  hold  would  be  to  convert  into  an  illegal 
motive  the  instinct  of  self-advancement  and  self-protection,  which  is 
the  very  incentive  to  all  trade.  To  say  that  a  man  is  to  trade  freely, 
but  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  counsel  of  perfection.  But  we  were 
told  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  fraud,  intimidation,  molestation,  or 
obstruction,  of  some  other  personal  right  in  rem  or  in  personam,  there 
is  some  natural  standard  of  "  fairness  ''  or  ''  reasonableness  "  (to  be 
detennined  by  the  internal  consciousness  of  judges  and  juries)  beyond 
which  competition  ought  hot  in  law  to  go.  There  seems  to  be  no 
authority,  and  I  think,  with  submission,  that  there  is  no  sufficient 
reason,  for  such  a  proposition.  It  would  impose  a  novel  fetter  upon 
trade.  The  defendants,  we  are  told  by  the  plaintifib'  counsel,  might 
lawfully  lower  rates  provided  they  did  not  lower  them  beyond  a  "  fair 
freight,"  whatever  that  may  mean.  But  where  is  it  established  that 
there  is  any  such  restriction  upon  commerce  ?  And  what  is  to  be 
the  definition  of  a  ''  fair  freight  ?  "  It  is  said  that  it  ought  to  be  a 
nonnal  rate  of  freight,  such  as  is  reasonably  remunerative  to  the  ship- 
owner. But  over  what  period  of  time  is  the  average  of  this  reasonable 
remunerativeness  to  be  calculated  ?  All  commercial  men  with  capital 
are  acquainted  with  the  ordinary  expedient  of  sowing  one  year  a  crop 
of  apparently  unfruitful  prices,  in  order  by  driving  competition  away 
to  reap  a  fuller  harvest  of  profit  in  the  futm^;  and  until  the  present 
argument  at  the  bar  it  may  be  doubted  whether  shipowners  or  mer- 
chants were  ever  deemed  to  be  boimd  by  law  to  conform  to  some  im- 
aginary *'  nonnal  "  standard  of  freights  or  prices,  or  that  law  courts 
had  a  right  to  say  to  them  in  respect  of  their  competitive  tariffs, 
"  Thus  far  shalt  thou  go,  and  no  further."  To  attempt  to  limit  Eng- 
lish competition  in  this  way  would  probably  be  as  hopeless  an  en- 
deavor as  the  experiment  of  King  Canute.  But  on  ordinary  principles 
of  law  no  such  fetter  on  freedom  of  trade  can  in  my  opinion  be  war- 
ranted. A  man  is  bound  not  to  use  his  property  so  as  to  infringe  upon 
another's  right.  Sic  utere  tuo  vt  alienum  non  Icedas,  If  engaged  in 
actions  which  may  involve  danger  to  others,  he  ought,  speaking  gen- 
erally, to  take  reasonable  care  to  avoid  enc^angering  them.  But  there 
is  singly  no  doctrine  of  law  which  compels  him  to  use  his  property  in  a 
way  that  judges  and  juries  may  consider  reasonable :  see  Chasemore  v, 
Richards,  7  H.  L.  C.  349.  If  there  is  no  such  fetter  upon  the  use  of 
property  known  to  the  English  law,  why  should  there  be  any  such  a 
fetter  upon  trade  ? 


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yiU        MOGUli  BTEAMSHIF  UU.  V,  MCUlUliiKIK  &   UO.         L^HAI*.   VUl, 

It  is  urged,  however,  on  the  part  of  the  plaintiffs,  that  even  if  the 
acts  complained  of  would  not  be  wrongful  had  they  been  committed  by 
a  single  individual,  they  become  actionable  when  they  are  the  result  of 
concerted  action  among  several.  In  other  words,  the  plaintiffs,  it  is 
contended,  have  been  injured  by  an  illegal  conspiracy.  Of  the  general 
proposition,  that  certain  kinds  of  conduct  not  criminal  in  any  one  indi- 
vidual may  become  q^iminal  if  done  by  combination  among  several, 
there  can  be  no  doubt.  The  distinction  is  based  on  sound  reason,  for  a 
combination  may  make  oppressive  or  dangerous  that  which  if  it  pro- 
ceeded only  from  a  single  person  would  be  otherwise,  and  the  very  fact 
of  the  combination  may  show  that  the  object  is  simply  to  do  harm, 
and  not  to  exercise  one's  own  just  rights.  In  the  application  of  this 
imdoubted  principle  it  is  necessary  to  be  very  careful  not  to  press  the 
doctrine  of  illegal  conspiracy  beyond  that  which  is  necessary  for  the 
protection  of  individuals  or  of  the  public;  and  it  may  be  observed  in 
passing  that  as  a  rule  it  is  the  damage  wrongfully  done,  and  not  the 
conspiracy,  that  is  the  gist  of  actions  on  the  case  for  conspiracy:  see 
Skinner  v.  Gimton,  1  Wms.  Saimd.  229;  Hutchins  i;.  Hutchins,  7  Hill, 
104.  But  what  is  the  definition  of  an  illegal  combination  ?  It  is  an 
agreement  by  one  or  more  to  do  an  unlawful  act,  or  to  do  a  lawful 
act  by  unlawful  means:  O'Connell  i;.  The  Queen,  11  CI.  &  F.  156;  Reg. 
V,  Pamell,  14  Ck>x,  Criminal  Cases,  508.;  and  the  question  to  be  solved 
is  whether  there  has  been  any  such  agreement  here.  Have  the  de- 
fendants combined  to  do  an  unlawful  act  ?  Have  they  combined  to 
do  a  lawful  act  by  imlawful  means  ?  A  moment's  consideration  will 
be  sufficient  to  show  that  this  new  inquiry  only  drives  us  back  to  the 
circle  of  definitions  and  legal  propositions  which  I  have  already  trav- 
ersed in  the  previous  part  of  this  judgment.  The  unlawful  act  agreed 
to,  if  any,  between  the  defendants  must  have  been  the  intentional 
doing  of  some  act  to  the  detriment  of  the  plaintiffs'  business  without 
just  cause  or  excuse.  Whether  there  was  any  such  justification  or 
excuse  for  the  defendants,  is  the  old  question  over  again,  which,  so  far 
as  regards  an  individual  trader,  has  been  already  solved.  The  only 
differentia  that  can  exist  must  arise,  if  at  all,  out  of  the  fact  that  the 
acts  done  are  the  joint  acts  of  several  capitalists,  and  not  of  one  cap- 
italist only.  The  next  point  is  whether  the  means  adopted  were  unlaw- 
ful. The  means  adopted  were  competition  carried  to  a  bitter  end. 
Whether  such  means  were  unlawful  is  in  Uke  manner  nothing  but  the 
old  discussion  which  I  have  gone  through,  and  which  is  now  revived 
under  a  second  head  of  inquiry,  except  so  far  as  a  combination  of 
capitalists  differentiates  the  case  of  acts  jointly  done  by  them  from 
similar  acts  done  by  a  single  man  of  capital.  But  I  find  it  impossible 
myself  to  acquiesce  in  the  view  that  the  English  law  places  any  such 
restriction  on  the  combination  of  capital  as  would  be  involved  in  the 
recognition  of  such  a  distinction.  If  so,  one  rich  capitalist  may  inno- 
cently carry  competition  to  a  length  which  would  become  unlawful  in 


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the  case  of  a  syndicate  with  a  joint  capital  no  larger  than  his  own,  and 
one  individual  merchant  may  lawfully  do  that  which  a  firm  or  a  par- 
nership  may  not.  What  limits,  on  such  a  theory,  would  be  imposed  by 
law  on  the  competitive  action  of  a  jointnstock  company  limited,  is  a 
problem  which  might  well  puzzle  a  casuist.  The  truth  is,  that  the 
combination  of  capital  for.  purposes  of  trade  and  competition  is  a  very 
different  thing  from  such  a  combination  of  several  persons  against  one, 
with  a  view  to  harm  him,  as  falls  under  the  head  of  an  indictable  con- 
spiracy. There  is  no  just  cause  or  excuse  in  the  latter  class  of  cases. 
There  is  such  a  just  cause  or  excuse  in  the  former.  There  are  cases  in 
which  the  very  fact  of  a  combination  is  evidence  of  a  design  to  do  that 
wliich  is  hurtful  without  just  cause  —  is  evidence  —  to  use  a  technical 
expression  —  of  malice.  But  it  is  perfectly  legitimate,  as  it  seems  to 
me,  to  combine  capital  for  all  the  mere  purposes  of  trade  for  which  cap- 
ital may,  apart  from  combination,  be  legitimately  used  in  trade.  To 
limit  combinations  of  capital,  when  used  for  purposes  of  competition, 
in  the  manner  proposed  by  the  argument  of  the  plaintiffs,  would,  in  the 
present  day,  be  impossible  —  would  be  only  another  method  of  at-  • 
tempting  to  set  boundaries  to  the  tides.  Legal  puzzles  which  might 
well  distract  a  theorist  may  easily  be  conceived  of  imaginary  conflicts 
between  the  selfishness  of  a  group  of  individuals  and  the  obvious  well- 
being  of  other  members  of  the  commimity.  Would  it  be  an  indictable 
conspiracy  to  agree  to  drink  up  all  the  water  from  a  common  spring 
in  a  time  of  drought;  to  buy  up  by  preconcerted  action  all  the  provi- 
sions in  a  market  or  district  in  times  of  scarcity:  see  Rex  v.  Wadding- 
ton,  1  East,  143;  to  combine  to  purchase  all  tlie  shares  of  a  company 
against  a  coming  settling-day;  or  to  agree  to  give  away  articles  of 
trade  gratis  in  order  to  withdraw  custom  from  a  trader  ?  May  two 
itinerant  match- vendors  combine  to  sell  matches  below  their  value  in 
order  by  competition  to  drive  a  third  match-vendor  from  the  street  ? 
In  cases  like  these,  where  the  elements  of  intimidation,  molestation,  or 
the  other  kinds  of  illegaUty  to  which  I  have  alluded  are  not  present, 
the  question  must  be  decided  by  the  application  of  the  test  I  have 
indicated.  Assume  that  what  is  done  is  intentional,  and  that  it  is  cal- 
culated to  do  harm  to  others.  Then  comes  the  question.  Was  it  done 
with  or  without  "  just  cause  or  excuse  ?  "  If  it  was  bona  fide  done  in 
the  use  of  a  man's  own  property,  in  the  exercise  of  a  man's  own  trade, 
such  legal  justification  would,  I  think,  exist  not  the  less  because  what 
was  done  might  seem  to  others  to  be  selfish  or  imreasonable:  see  the 
summing-up  of  Erie,  J.,  and  the  judgment  of  the  Queen's  Bench  in 
Reg.  V.  Rowlands,  17  Q.  B.  671.  But  such  legal  justification  would 
not  exist  when  the  act  was  merely  done  with  the  intention  of  causing 
temporal  harm,  without  reference  to  one's  own  lawful  gain,  or  the 
lawful  enjoyment  of  one's  own  rights.  The  good  sense  of  the  tribunal 
which  had  to  decide  would  have  to  analyze  the  circumstances  and  to 
discover  on  which  side  of  the  line  each  case  fell.   But  if  the  real  object 


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were  to  enjoy  what  was  one's  own,  or  to  acquire  for  one's  self  some 
advantage  in  one's  property  or  trade,  and  what  was  done  was  done 
honestly,  peaceably,  and  without  any  of  the  illegal  acts  above  referred 
to,  it  could  not,  in  my  opinion,  properly  be  said  that  it  was  done  with- 
out just  cause  or  excuse.  One  may  with  advantage  borrow  for  the 
benefit  of  traders  what  was  said  by  Erie,  J.,  in  Reg.  v.  Rowlands, 
17  Q.  B.  671,  at  p.  687,  n.,  of  workmen  and  of  masters:  "  The  inten- 
tion of  the  law  is  at  present  to  allow  either  of  them  to  follow  the  dic- 
tates of  their  own  will,  with  respect  to  their  own  actions,  and  their 
own  property;  and  either,  I  believe,  has  a  right  to  study  to  promote 
his  own  advantage,  or  to  combine  with  others  to  promote  their  mutual 
advantage." 

Lastly,  we  are  asked  to  hold  the  defendants'  Ck>nference  or  associsr 
tion  illegal,  as  being  in  restraint  of  trade.  The  term  "  illegal  "  here  is 
a  misleading  one.  Contracts,  as  they  are  caUed,  in  restraint  of  trade, 
are  not,  in  my  opinion,  illegal  in  any  sense,  except  that  the  law  will 
not  enforce  them.  It  does  not  prohibit  the  making  of  such  contracts; 
it  merely  declines,  after  they  have  been  made,  to  recognize  their  valid- 
ity. The  law  considers  the  disadvantage  so  imposed  upon  the  contract 
a  sufficient  shelter  to  the  public.  The  language  of  Crompton,  J.,  m 
Hilton  V.  Eckersley,  6  E.  &  B.  47,  is,  I  think,  not  to  be  supported. 
No  action  at  common  law  will  lie  or  ever  has  lain  against  any  indi- 
vidual or  individuals  for  entering  into  a  contract  merely  because  it 
is  in  restraint  of  trade.  Lord  Eldon's  equity  decision  in  Ck>usins  v. 
Smith,  13  Ves.  642,  is  not  very  intelligible,  even  if  it  be  not  open  to 
the  somewhat  personal  criticism  passed  on  it  by  Lord  CampbeU  in  his 
"  Lives  of  the  Chancellors."  If  indeed  it  could  be  plainly  proved  that 
the  mere  formation  of  "  conferences,"  "  trusts,"  or  "  associations  " 
such  as  these  were  always  necessarily  injurious  to  the  public — a  view 
which  involves,  perhaps,  the  disputable  assumption  that,  in  a  country 
of  free  trade,  and  one  which  is  not  under  the  iron  regime  of  statutory 
monopolies,  such  confederations  can  ever  be  really  successful  —  and  if 
the  evil  of  them  were  not  sufficiently  dealt  with  by  the  common  law 
rule,  which  held  such  agreements  to  be  void  as  distinct  from  holding 
them  to  be  criminal,  there  might  be  some  reason  for  thinking  that  the 
common  law  ought  to  discover  within  its  arsenal  of  sound  common- 
sense  principles  some  further  remedy  commensurate  with  the  mischief. 
Neither  of  these  assumptions  are,  to  my  mind,  at  all  evident,  nor  is  it 
the  province  of  judges  to  mould  and  stretch  tiie  law  of  conspiracy  in 
order  to  keep  pace  with  the  calculations  of  poUtical  economy.  If 
peaceable  and  honest  combinations  of  capital  for  purposes  of  trade 
competition  are  to  be  struck  at,  it  must,  I  think,  be  by  legislation,  for 
I  do  not  see  that  they  are  under  the  ban  of  the  common  law. 

In  the  result,  I  agree  with  Lord  Coleridge,  C.  J.,  and  differ,  with 
regret,  from  the  Master  of  the  Rolls.  The  substance  of  my  view  is 
this,  that  competition,  however  severe  and  ^otistical,  if  unattended 


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CHAP.  Vni.]      PASSAIC  PRINT  WORKS  V.  ELY  &  WALKER  CO.      913 

by  circumstances  of  dishonesty,  intimidation,  molestation,  or  such 
illegaUties  as  I  have  above  referred  to,  gives  rise  to  no  cause  of  action 
at  common  law.  I  myself  should  deem  it  to  be  a  misfortune  if  we  were 
to  attempt  to  prescribe  to  the  business  world  how  honest  and  peace- 
able trade  was  to  be  carried  on  in  a  case  where  no  such  illegal  elements 
as  I  have  mentioned  exist,  or  were  to  adopt  some  standard  of  judicial 
"  reasonableness,"  or  of  "  normal  "  prices,  or  "  fair  freights,"  to  which 
commercial  adventurers,  otherwise  innocent,  were  bound  to  conform. 
In  my  opinion,  accordingly,  this  appeal  ought  to  be  dismissed  with 
costs.  Appeal  dienmaed} 


PASSAIC  PRINT  WORKS  v.  ELY  &  WALKER  DRY 
GOODS  COMPANY 

United  States  Cmcurr  Court  op  Appeals,  Eighth  Cmcurr, 
November  14, 1900. 

Reported  in  44  V.  S.  CireuU  Court  of  Appeals  Reports,  426,  s.  c.  105  Federal  Re- 

porteTf  163. 

In  U.  S.  Circuit  Court  of  Appeals,  Eighth  Circuit.  Before 
Caldwell,  Sanborn,  and  Thater,  Circuit  Judges.^ 

In  error  to  U.  S.  Circuit  Court  for  Eastern  District  of  Missouri. 

This  case  was  determined  below  on  a  demurrer  to  the  plaintiff's 
petition,  which  was  sustained;  and  a  final  judgment  was  entered 
against  the  Passaic  Print  Works,  the  plaintiff  below,  it  having  declined 
to  plead  further. 

The  plaintiff's  petition  contained,  in  substance,  the  foUowing  alle- 
gations (inter  alia) :  — 

Plaintiff  is  a  corporation  engaged  in  the  manufacture  of  prints  or 
calicoes  which  it  sdls  to  jobbers  or  wholesale  dealers  in  St.  Louis  and 
elsewhere,  who  in  turn  sell  the  same  to  the  retail  trade.  In  1899  it 
had  fixed  on  certain  prices  for  certain  specified  brands  of  calicoes; 
and  it  had,  prior  to  Feb.  26,  1899,  received  from  several  wholesale 
dealers  in  St.  Louis  orders  for  large  amounts  of  said  brands  at  the 
prices  specified.  On  February  26, 1899,  the  defendant  company,  com- 
bining and  conspiring  among  themselves  and  with  others  to  the  plain- 
tiff unknown,  and  maUcioualy  intending  to  injm^  the  business  of  the 
said  plaintiff,  and  to  cause  it  great  loss  in  money,  and  to  break  up  and 
ruin  the  plaintiff's  trade  among  the  jobbers  in  St.  Louis,  maliciously 
caused  a  circular,  in  the  name  of  the  said  defendant  corporation,  to  be 
issued  and  sent  out  to  the  retail  trade  tributary  to  St.  Louis.  In  the 
circular  defendant  company  offered  for  sale  several  brands  of  caUcoes 

'  Payne  v,  Kaihroad  Co.,  13  Lea,  507  (Freeman  and  Tumey,  JJ..  diifeenting) ; 
South  Royalton  Bank  v.  Suffolk  Bank,  27  Vt.  506;  Del*  v.  Winfree,  80  Tex.  400, 
405  (semMe)  Accord.    See  Lough  t;.  Outerbridge,  143  N.  Y.  271. 

'  Statement  rewritten. 


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914      PASSAIC  PRINT  WORKS  V.  ELY  &  WALKER  CO.      [CHAP.  VHI. 

manufactured  by  plaintifiF  at  prices  lower  than  those  fixed  by  plaintiff. 
The  brands  were  offered  "as  long  as  they  last"  at  these  reduced 
prices:  "  Prices  for  all  items  subject  to  change  without  notice,  and 
orders  accepted  only  for  stock  on  hand."  Plaintiff  further  alleged  that 
it  was  informed  and  believed  that  defendant  had  but  a  small  quantity 
of  such  goods  to  sell,  and  for  that  reason  qualified  its  offer  as  above 
stated. 

The  petition  further  averred,  that  the  effect  of  issuing  this  circular 
was  to  compel  jobbers  to  whom  plaintiff  had  already  sold  either  to 
cancel  their  orders  or  to  compel  plaintiff  to  make  a  rebate  on  price, 
and  to  thereby  break  up  the  trade  of  plaintiff  in  St.  Louis  and  the 
adjacent  country,  and  to  make  the  other  jobbers  in  St.  Louis  afraid  to 
deal  in  said  brands  except  at  greatly  reduced  prices  and  then  in  com- 
paratively small  quantities;  and  upon  infonnation  and  belief  the 
plaintiff  alleged  "  that  the  quotations  of  this  plaintiff's  said  goods  in 
the  said  circular  were  made  by  the  said  defendants  with  the  end  and 
object  in  this  paragraph  stated,  and  not  for  any  legitimate  trade 
pmpose." 

Thatbr,  Circuit  Judge,  [after  stating  the  case]  delivered  the 
opinion  of  the  court. 

The  complaint  filed  in  the  lower  court,  the  substance  of  which  has 
been  stated,  shows  by  necessary  intendment  that  when  the  circular  of 
the  defendaiit  company  was  issued  it  had  in  stock  a  limited  quantity 
of  the  four  brands  of  caUco  of  the  plaintiff's  manufacture  which  are 
therein  described.  The  circular  stated,  in  substance,  that  the  de- 
fendant had  such  calicoes  in  stock,  and  the  complaint  did  not  deny 
that  fact,  but  admitted  it  by  averring  that "  the  defendant  corporation 
had  but  a  small  quantity  of  such  goods  to  sell,  and  for  that  reason 
qualified  its  offer  to  sell  by  inserting  in  the  circular  after  the  name  of 
the  goods  the  words  '  as  long  as  they  last.'  "  Moreover,  the  owner  of 
property,  real  or  personal,  has  an  undoubted  right  to  sell  it  and  to 
offer  it  for  sale  at  whatever  price  he  deems  proper,  although  the  effect 
of  such  offer  may  be  to  depreciate  the  market  value  of  the  commodity 
which  he  thus  offers,  and  incidentally  to  occasion  loss  to  third  parties 
who  have  the  same  kind  or  species  of  property  for  sale.  The  right 
to  offer  property  for  sale,  and  to  fix  the  price  at  which  it  may  be 
bought,  is  incident  to  the  ownership  of  property,  and  the  loss  which  a 
third  party  sustains  in  consequence  of  the  exercise  of  that  right  is 
damnum  absque  injuria.  We  are  thus  confronted  with  the  inquiry 
whether  the  motive  which  influenced  the  defendant  company  to  offer 
for  sale  such  calicoes  of  the  plaintiff's  manufacture  as  they  had  in 
stock  at  the  price  named  in  its  circular,  conceding  such  motive  to  have 
been  as  alleged  in  the  complaint,  changed  the  complexion  of  the  act, 
and  rendered  the  same  unlawful,  when,  but  for  the  motive  of  the  actor, 
it  would  have  been  clearly  lawful.  It  is  conunon  learning  that  a  bad 
motive  —  such  as  an  intent  to  hinder,  delay,  and  defraud  creditors. 


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by  virtue  of  St.  13  Eliz.  c.  6,  and  possibly  by  the  rules  of  the  common 
law  —  will  render  a  conveyance  or  transfer  of  property  void  which, 
but  for  the  bad  motive,  would  have  been  vaUd.  So,  also,  one  who  sets 
the  machinery  of  the  law  in  motion  without  probable  cause,  and  for 
the  sole  purpose  of  injuring  the  reputation  of  another,  or  subjecting 
him  to  loss  and  expense,  is  guilty  of  an  unlawful  act  which  would  have 
been  lawful  but  for  the  improper  motive.  And  one  who,  by  virtue  of 
his  situation,  has  a  qualified  privil^e  to  make  defamatory  statements 
concerning  another,  may  be  deprived  of  the  benefit  of  that  privilege 
by  proof  that  it  was  not  exercised  in  good  faith,  but  in  pursuance  of 
a  malicious  intent  to  injure  the.  person  concerning  whom  the  defama- 
tory statement  or  statanents  were  made.  Poll.  Torts  (Webb's  Ed.) 
pp.  331-335,  and  cases  there  cited.  There  is  also  some  authority  for 
8a3ang  that  one  who  maliciously  (that  is,  with  intent  to  obtain  some 
personal  benefit  at  another's  loss  or  expense)  induces  another  to  break 
his  contract  with  a  third  party  thereby  commits  an  actionable  wrong 
if  special  damage  is  disclosed,  although  the  act  done  would  have  been 
lawiful  if  the  wrongful  motive  had  been  absent.  Lumley  v.  Gye,  2  EL 
&  Bl.  216;  Bowen  v.  Hall,  6  Q.  B.  Div.  333;  Walker  v.  Cronin,  107 
Mass.  555.  And  see  Poll.  Torts  (Webb's  Ed.)  pp.  668-673.  Aside 
from  cases  of  the  latter  kind,  it  is  a  general  rule  that  the  bad  motive 
which  inspires  an  act  will  not  change  its  complexion,  and  render  it 
unlawful,  if  otherwise  the  act  was  done  in  the  exercise  of  an  undoubted 
right.  Or,  as  has  sometimes  been  said,  "  when  an  act  done  is,  apart 
from  the  feelings  which  prompted  it,  legal,  the  civil  law  ought  to  take 
no  cognizance  of  its  motive."  The  question  as  to  how  far  and  under 
what  circumstances  a  bad  purpose  will  render  an  act  actionable  which, 
considered  by  itself,  and  without  reference  to  the  purpose  which 
prompted  it,  is  lawful,  has  been  so  much  discussed  since  the  decision  in 
Allen  V.  Flood,  [1898]  1  App.  Cas.  1,  that  it  would  be  profitless  to  in- 
dulge in  further  conmient.  It  has  been  well  observed  that  it 'would 
be  dangerous  to  the  peace  of  society  to  admit  the  doctrine  that  any 
lawful  act  can  be  transformed  prima  facie  into  an  actionable  wrong 
by  a  simple  allegation  that  the  act  was  inspired  by  malice  or  ill  will, 
or  by  an  improper  motive.  It  is  wiser,  therefore,  to  exclude  any  in- 
quiry into  the  motives  of  men  when  their  actions  are  lawful,  except  in 
those  cases  where  it  is  well  established  that  malice  is  an  essential  in- 
gredient of  the  cause  of  action,  or  in  those  cases  where,  the  act  done 
being  wrongful,  proof  of  a  bad  motive  will  serve  to  exaggerate  the 
damages. 

The  case  at  bar  falls  within  neither  of  the  exceptions  to  the  general 
rule  above  stated,  —  that,  if  an  act  is  done  in  the  exercise  of  an  un- 
doubted right,  and  is  lawful,  the  motive  of  the  actor  is  immaterial. 
No  one  can  dispute  the  right  of  the  defendant  company  to  oflFer  for 
sale  goods  that  it  owned  and  were  in  its  possession,  whether  the  quan- 
tity was  great  or  small,  for  such  a  price  as  it  deemed  proper.   This  was 


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the  outward  visible  act  of  which  complaint  is  made,  and,  being  law- 
ful, the  law  will  not  hold  it  to  be  otherwise  because  of  a  secret  pur- 
pose entertained  by  the  defendant  company  to  inflict  loss  on  the 
plaintiff  by  compelling  it  to  reduce  the  cost  of  a  certain  kind  of  its 
prints  or  caUcoes. 

Nor  is  the  complaint  aided  in  any  respect  by  reference  to  the  law 
of  conspiracy,  since  the  only  object  that  the  defendants  had  in  view 
which  the  law  will  consider  was  the  disposition  or  sale  of  certain  goods 
which  the  defendant  corporation  had  tiie  right  to  sell;  and  the  means 
employed  to  accomplish  that  end,  namely,  placing  them  on  the  market 
at  a  reduced  cost,  were  also  lawful. 

In  the  brief  filed  in  behalf  of  the  plaintiff  in  error  it  is  suggested 
finally  that  the  complaint  may  be  sustained  on  the  ground  that  it 
states  a  good  cause  of  action  for  maliciously  causing  certain  persons 
to  break  or  cancel  their  contracts  with  the  plaintiff,  but  we  think  it 
quite  obvious  that  the  complaint  was  not  framed  with  a  view  of  stat- 
ing a  cause  of  action  of  that  nature,  and  that  it  is  insufficient  for  that 
purpose.  It  does  not  give  the  name  of  any  person  or  corporation 
with  whom  the  plaintiff  had  a  contract  for  the  sale  of  its  prints  which 
was  subsequently  broken  in  consequence  of  the  wrongful  acts  of  the 
defendant.  Neither  does  it  show  that  it  had  accepted  any  orders  for 
goods  which  the  jobber  was  not  privileged  to  cancel  at,  his  pleasure.- 
Nor  does  it  all^e  any  special  damage  incident  to  the  breach  of  any 
particular  contract.  In  view  of  all  the  aUegations  which  the  complaint 
contains  it  is  manifest,  we  think,  that  it  was  framed  with  a  view  of 
recovering  on  the  broad  groimd  that  the  issuance  of  the  circular  was 
unlawful  and  actionable,  provided  the  motive  of  the  defendant  com- 
pany in  issuing  it  was  to  occasion  loss  or  inconvenience  to  the  plaintiff. 

We  are  of  opinion  that  the  complaint  did  not  state  a  cause  of  ac- 
tion, as  the  trial  court  held,  and  the  judgment  below  is  therefore 
affiimed. 

Sanborn,  Circuit  Judge  (dissenting).  I  cannot  concur  in  the 
opinion  of  the  majority  in  this  case  because  the  petition  alleges  that 
the  defendants  by  their  advertisement  of  the  goods  manufactm^  by 
plaintiff,  without  any  legitimate  trade  purpose,  prevented  jobbers 
from  purchasing  goods  of  the  plaintiff,  and  caused  those  who  had 
agreed  to  piu-chase  from  it  to  cancel  their  orders  unless  the  plaintiff 
would  make  them  a  rebate,  so  that  the  plaintiff  sustained  damage  in 
the  sum  of  $19,000.  In  my  opinion,  the  gravamen  of  this  cause  of 
action  is  not  the  malicious  intent  or  purpose  of  the  defendants,  but  it  is 
their  wrongful  act  of  interfering  with  the  plaintiff's  business,  of  pre- 
venting sales  that  it  would  have  made,  and  of  cau^ng  the  cancellation 
of  orders  to,  or  contracts  of  purchase  from,  the  plaintiff  already  made. 
This  act,  without  any  allegatioti  or  averment  of  intent  or  purpose,  was 
itself  wrongful,  unless  it  was  done  for  a  justifiable  purpose.  The  act  of 
interfering  with  and  injuring  the  trade  or  business  of  the  plaintiff  with- 


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out  justifiable  cause  entitled  the  plaintiff  to  damages.  It  is  conceded 
that,  if  the  defendants  had  advertised  these  prints  for  any  legitimate 
trade  purpose,  for  the  purpose  of  selling  them  for  gain  for  themselves, 
for  the  purpose  of  convertUig  them  into  money  because  they  preferred 
their  advertised  price  to  the  goods,  or  for  the  purpose  of  competing  in 
trade  with  the  plaintiff,  they  woiild  have  had  a  justifiable  cause  for 
inflicting  upon  it  the  damages  of  which  it  complains,  and  these  dam- 
ages woidd  then  have  been  damnum  absque  injuria.  But,  if  they  had 
advertised  them  for  any  of  these  purposes,  this  case  would  have  con- 
stituted an  exception  to  the  general  rule  of  law.  The  general  rule  is 
that  whenever  one  injures  a  man's  business,  profession,  or  occupation 
he  is  liable  for  the  damages  he  inflicts.  The  exception  is  that,  where 
the  injury  is  caused  by  competition  in  trade  or  the  lawful  exercise  of  a 
right  which  the  inflictor  has,  then  the  injury  is  justifiable,  and  no 
damages  can  be  recovered.  But,  where  such  an  injuiy  is  inflicted, 
the  presumption  always  is  that  the  rule,  and  not  the  exception,  ap- 
plies, and,  if  the  inflictor  would  justify,  he  must  show  that  he  falls 
within  the  exception.  The  question  in  this  case,  therefore,  is  not 
whether  or  not  the  motive  or  intent  of  the  defendaiits  will  make  acts 
unlawful  which  were  otherwise  lawful,  but  whether  or  not  the  in- 
tent and  purpose  of  the  defendants  will  justify  an  otherwise  unlawful 
act,  and  excuse  them  from  the  payment  of  damages  for  which,  under 
the  general  rule  of  law,  they  are  liable  to  the  plaintiff.  It  is  whether 
or  not  the  petition  shows  that  they  advertised  the  goods  for  legitimate 
trade  purposes,  so  that  their  acts  fell  within  the  exception,  which  justi- 
fies the  infliction  of  damages,  and  not  under  the  general  rule,  which 
requires  them  to  compensate  the  plaintiff  for  the  injiuy  they  have 
caused.  The  opinion  of  the  majority  assumes  that  the  defendants 
advertised  the  prints  for  a  legitimate  trade  purpose,  so  that  their  acts 
fell  within  the  exception  to  the  general  rule.  It  overlooks  the  legal 
presumption  that  injury  to  one's  business  entitles  him  to  compensa- 
tory damages,  and  the  plain  averment  of  the  petition  that  the  acts  of 
the  defendants  were  not  done  for  any  justifiable  cause,  but  were  com- 
mitted for  the  sole  purpose  of  infiicting  upon  the  plaintiff  the  injury 
they  caused. 

[After  quoting  from  the  averments  in  the  petition.] 
Now,  no  one  will  dispute  the  rules  of  law  that  the  plaintiff  in  this 
action  had  the  right  to  conduct  its  business  of  manufacturing  and 
selling  prints  without  the  injurious  interference  of  strangers,  and  that 
the  defendants  were  subject  to  the  universal  rule  that  they  must  so 
use  their  own  property  and  rights  as  to  inflict  no  unnecessary  injury 
upon  their  ne^bors.  The  averments  of  this  petition  are  that  they 
were  not  using  any  of  their  property  or  exercising  any  of  their  rights 
for  any  legitimate  trade  purpose,  but  that  they  were  using  them  for 
the  express  purpose  of  inflicting  injury  upon  the  plaintiff,  and  that 
they  succeeded  in  imposing  the  infliction.    These  allegations  seem  to 


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yi«  TUTTLE   V.  BUCK  IVtlAJf.  VUl. 

me  to  bring  this  case  under  the  general  rule  of  law,  and  to  clearly 
negative  the  claim  that  it  falls  within  the  exception.  They  seem  to 
state  a  good  cause  of  action. 

[The  learned  Judge  here  cited,  and  quoted  from,  various  authorities.] 

The  proposition  is  sustained  by  respectable  authority;  it  is  just, 
and  I  believe  it  is  sound,  —  that  an  action  will  he  for  depriving  a 
man  of  custom  (that  is,  of  possible  contracts),  when  the  result  is 
effected  by  persuasion  as  well  as  when  it  is  accomplished  by  fraud 
or  force,  if  the  harm  is  inflicted  without  justifiable  cause,  such  as  com- 
petition in  trade.  Walker  v.  Cronin,  107  Mass.  565,  565;  Morasse  v. 
Brochu,  151  Mass.  567,  25  N.  E.  74,  8  L.  R.  A.  624;  Hartnett  v. 
Association,  169  Mass.  229,  235, 47  N.  E.  1002, 38  L.  R.  A.  194;  Debs 
V.  Winfree,  80  Tex.  400,  405,  16  S.  W.  Ill;  Doremus  v.  Hennessy, 
62  lU.  App.  391,  403;  Van  Horn  v.  Van  Horn,  52  N.  J.  Law,  284, 
20  Atl.  485;  Temperton  v.  Russell,  62  Law  J.  (Q.  B.  Div.  1893)  412, 
419. 

Under  the  legal  principles  to  which  reference  has  been  made,  and 
under  the  authorities  which  have  been  cited,  the  petition  in  this  case 
states  a  good  cause  of  action  for  interference  with  and  injury  to  the 
business  of  the  plaintiff  by  preventing  it  from  obtaining  custom  it 
would  otherwise  have  obtained,  without  any  justifiable  cause  or  ex- 
cuse, and  for  this  reason  the  demurrer  should  have  been  overruled, 
and  the  case  sent  to  trial. 

There  is  another  reason  why  the  judgment  below  should  be  reversed. 
It  is  that  the  petition  sufficiently  states  a  cause  of  action  for  mali- 
ciously interfering  with  contracts  between  jobbers  in  St.  Louis  and 
the  plaintiff,  and  inducing  the  former  to  break  their  contracts  to  the 
injury  of  the  latter. 

For  the  reasons  which  have  now  been  briefly  stated,  the  judgment 
below  should,  in  my  opinion,  be  reversed,  and  the  defendants  should 
be  required  to  answer  the  petition.^ 

TUTTLE  V.  BUCK 
Supreme  Court,  Minnesota,  February  19, 1909. 
Reported  in  107  Minnesota  ReporUf  145. 

Action  in  the  District  Court  for  Wright  County  to  recover  $10,000 
damages.  Defendant  demurred  to  the  complaint  on  the  ground  it  did 
not  state  a  cause  of  action.  From  an  order,  Buckham,  J.,  overruling 
the  demurrer,  defendant  appealed.    AflBrmed. 

This  appeal  was  from  an  order  overruling  a  general  demurrer  to  a 
complaint  in  which  the  plaintiff  alleged:  — 

^  See  BoffiB  v,  Duncan  Fumitiu^  Co.,  163  la.  106;  Rogers,  Predatory  Price 
Cutting  as  Unfair  Trade,  27  Harvard  Law  Rev.  139. 


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That  for  more  than  ten  years  last  past  he  has  been  and  still  is  a 
barber  by  trade,  and  engaged  in  business  as  such  in  the  village  of 
Howard  Lake,  Minnesota,  where  he  resides,  owning  and  operating  a 
shop  for  the  purpose  of  his  said  trade.  That  until  the  injury  herein- 
after complained  of  his  said  business  was  prosperous,  and  plaintiff 
was  enabled  thereby  to  comfortably  maintain  himself  and  family  out 
of  the  income  and  profits  thereof,  and  also  to  save  a  considerable  simi 
per  annum,  to  wit,  about  $800.  That  the  defendant,  during  the  period 
of  about  twelve  months  last  past,  has  wrongfully,  unlawfully,  and 
mahciously  endeavored  to  destroy  plaintiff's  said  business,  and  compel 
plaintiff  to  abandon  the  same.  That  to  that  end  he  has  persistently 
and  systematically  sought,  by  false  and  malicious  reports  and  accu- 
sations of  and  concerning  the  plaintiff,  by  personally  soliciting  and 
urging  plaintiff's  patrons  no  longer  to  employ  plaintiff,  by  threats  of 
his  personal  displeasure,  and  by  various  other  imlawful  means  and 
devices,  to  induce,  and  has  thereby  induced,  many  of  said  patrons  to 
withhold  from  plaintiff  the  employment  by  them  formerly  given.  That 
defendant  is  possessed  of  large  means,  and  is  engaged  in  the  business 
of  a  banker  in  said  village  of  Howard  Lake,  at  Dassel,  Minnesota,  and 
at  divers  other  places,  and  is  nowise  interested  in  the  occupation  of  a 
barber;  yet  in  the  pursuance  of  the  wicked,  malicious,  and  unlawful 
purpose  aforesaid,  and  for  the  sole  and  only  purpose  of  injiuing  the 
trade  of  the  plaintiff,  and  of  accomplishing  his  purpose  and  threats 
of  ruining  the  plaintiff's  said  business  and  driving  him  out  of  said 
village,  the  defendant  fitted  up  and  furnished  a  barber  shop  in  said 
village  for  conducting  the  trade  of  barbering.  That  failing  to  induce 
any  barber  to  occupy  said  shop  on  his  own  account,  though  offered  at 
nominal  rental,  said  defendant,  with  the  wrongful  and  mahcious  pur- 
pose aforesaid,  and  not  otherwise,  has  during  the  time  herein  stated 
hired  two  barbers  in  succession  for  a  stated  salary,  paid  by  him,  to 
occupy  said  shop,  and  to  serve  so  many  of  plaintiff's  patrons  as  said 
defendant  has  been  or  may  be  able  by  the  means  aforesaid  to  direct 
from  plaintiff's  shop.  That  at  the  present  time  a  barber  so  employed 
and  paid  by  the  defendant  is  occupying  and  nominally  conducting  the 
shop  thus  fitted  and  fmnished  by  the  defendant,  without  paying  any 
rent  therefor,  and  imder  an  agreement  with  defendant  whereby  the  in- 
come of  said  shop  is  required  to  be  paid  to  defendant,  and  is  so  paid 
in  partial  retiurn  for  his  wages.  That  all  of  said  things  were  and  are 
done  by  defendant  with  the  sole  design  of  injming  the  plaiQtiff ,  and  of 
destrojring  his  said  business,  and  not  for  the  purpose  of  serving  any 
legitimate  interest  of  his  own.  That  by  reason  of  the  great  wealth  and 
prominence  of  the  defendant,  and  the  personal  and  financial  influence 
consequent  thereon,  he  has  by  the  means  aforesaid,  and  through  other 
imlawful  means  and  devices  by  him  employed,  materially  injured  the 
business  of  the  plaintiff,  has  largely  r^uced  the  income  and  profits 


( 


y^U  TUTTLE  V.  BUCK  [CHAP.  VUI, 

thereof,  and  intends  and  threatens  to  destroy  the  same  altogether,  to 
plaintiff's  damage  in  the  smn  of  $10,000.^ 

Elliott,  J.  (after  stating  the  facts  as  above). 

In  has  been  said  that  the  law  deals  only  with  externals,  and  that  a 
lawful  act  cannot  be  made  the  f oimdation  of  an  action  because  it  was 
done  with  an  evil  motive.  In  Allen  v.  Flood,  [1898]  A.  C.  1,  151, 
Lord  Watson  said  that,  except  with  regard  to  crimes,  the  law  does  not 
take  into  account  motives  as  constituting  an  element  of  civil  wrong. 
In  Mayor  v.  Pickles,  [1895]  A.  C.  587,  Lord  Halsbury  stated  that  if 
the  act  was  lawful,  "  however  ill  the  motive  might  be,  he  had  a  right 
to  do  it."  In  Raycroft  v.  Tayntor,  68  Vt.  219,  35  Atl.  53,  33  L.  R.  A. 
225,  54  Am.  St.  882,  the  court  said  that,  "  when  one  exercises  a  legal 
right  only,  the  motive  which  actuates  him  is  immaterial."  In  Jenkins 
V.  Fowler,  24  Pa.  St.  308,  Mr.  Justice  Black  said  that  "  malicious  mo- 
tives make  a  bad  act  worse,  but  they  cannot  make  that  wrong  which, 
in  its  own  essence,  is  lawful."  This  language  was  quoted  in  Bohn 
Mnfg.  Co.  V.  Hollis,  54  Minn.  223,  233,  55  N.  W.  1119,  21  L.  R.  A. 
337,  40  Am.  St.  319,  and  in  substance  in  Ertz  v.  Produce  Exdiange, 
79  Minn.  140, 143,  81  N.  W.  737, 48  L.  R.  A.  90,  79  Am.  St.  433.  See 
also  2  Cooley,  Torts  (3d  Ed.)  1505;  Auburn  v.  Douglass,  9  N.  Y. 
444. 

Such  generalizations  are  of  little  value  in  determining  concrete 
cases.  They  may  state  the  truth,  but  not  the  whole  truth.  Each  word 
and  phrase  used  therein  may  require  definition  and  limitation.  Thus, 
before  we  can  apply  Judge  Black's  language  to  a  pai%icular  case,  we 
must  deteimine  what  act  is  "  in  its  own  essence  lawful."  What  did 
Lord  Halsbury  mean  by  the  words  "  lawful  act "  ?  What  is  meant  by 
**  exercising  a  legal  ri^t  "  ?  It  is  not  at  all  correct  to  say  that  the 
motive  with  which  an  act  is  done  is  always  immaterial,  providing  the 
act  itself  is  not  unlawful.  Numerous  illustrations  of  the  contrary  will 
be  foimd  in  the  civil  as  well  as  the  criminal  law. 

We  do  not  intend  to  enter  upon  an  elaborate  discussion  of  the  sub- 
ject, or  become  entangled  in  the  subtleties  connected  with  the  words 
"  maUce  "  and  "  maUcious."  We  are  not  able  to  accept  without 
limitations  the  doctrine  above  referred  to,  but  at  this  time  content 
ourselves  with  a  brief  reference  to  some  general  principles. 

It  must  be  remembered  that  the  common  law  is  the  result  of  growth, 
and  that  its  development  has  been  determined  by  the  social  needs  of 
the  commimity  which  it  governs.  It  is  the  resultant  of  conflicting 
social  forces,  and  those  forces  which  are  for  the  time  dominant  leave 
their  impress  upon  the  law.  It  is  of  judicial  origin,  and  seeks  to 
establish  doctrines  and  rules  for  the  determination,  protection,  and 
enforcement  of  legal  rights.  Manifestly  it  must  change  as  society 
changes  and  new  rights  are  recognized.  To  be  an  efficient  instrument, 
and  not  a  mere  abstraction,  it  must  gradually  adapt  itself  to  changed 

^  The  arguments  are  omitted. 


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CHAP,  Vin.]  TUTTLE  V.  BUCK  921 

conditions.  Necessarily  its  form  and  substance  have  been  greatly 
affected  by  prevalent  economic  theories. 

For  generations  there  has  been  a  practical  agreement  upon  the 
proposition  that  competition  in  trade  and  business  is  desirable,  and 
this  idea  has  found  expression  in  the  decisions  of  the  courts  as  well  as 
in  statutes.  JBut  it  has  led  to  grievous  and  manifold  wroniip  to  indi- 
viduals, and  many  comi^  have  manifested  an  earnest  aesire  to  protect 
tftemmvii;liiat  from  thft  ftvila  whifih  rftfiiilt  from  iinrftafrftrnftH  business 
c^^^tion-^  The  problem  has  been  to  so  adjust  matters  as  to  pre- 
serve the  principle  of  competition  and  yet  guwl  against  its  abuse  to 
the  unnecessary  injury  to  the  individual.  So  the  principle  that  a  man 
may  use  his  own  property  according  to  his  own  needs  and  desires, 
while  true  in  the  abstract,  is  subject  to  many  limitations  in  the  con- 
crete, ivien  cannot  always,  in  civilized  society,  be  allowed  io  use  their 
owg^propfertv  as  their  interests  or  desires  may  dictate  without  refer- 
eUl^  lo  tne  lact  that  they  have^neighbors  whose  rights  are  as  sacred  as 
their  own.  The  existence  and  well-being  of  society  require  that  each 
and  every  person  shall  conduct  himself  consistently  with  the  fact  that 
he  is  a  social  and  reasonable  person.  The  piupoee  for  which  a  man  is 
using  his  own  property  may  thus  sometimes  determine  his  rights,  and 
applications  of  this  idea  are  found  in  Stillwater  Water  Ck).  v.  Farmer, 
89  Minn.  68,  93  N.  W.  907,  60  L.  R.  A.  876,  99  Am.  St.  641,  Id.,  92 
Minn.  230,  99  N.  W.  882,  and  Barclay  v.  Abraham,  121  Iowa,  619, 
96  N.  W.  1080,  64  L.  R.  A.  266, 100  Am.  St.  366. 

Many  of  the  restrictions  which  should  be  recognized  and  enforced 
result  from  a  tacit  recognition  of  principles  which  are  not  often  stated 
in  the  decisions  in  express  terms.  Sir  Frederick  Pollock  notes  that 
not  many  years  ago  it  was  difficult  to  find  any  definite  authority  for 
stating  as  a  general  proposition  of  Ekiglish  law  that  it  is  wrong  to  do 
a  wilful  wrong  to  one's  neighbor  without  lawful  justification  or  excuse. 
But  neither  is  there  any  express  authority  for  the  general  proposition 
that  men  must  perform  their  contracts.  Both  principles,  in  this  gen- 
erality of  form  and  conception,  are  modem,  and  there  was  a  time  when 
neither  was  true.  After  developing  the  idea  that  law  begins,  not  with 
authentic  general  principles,  but  with  the  enumeration  of  particular 
remedies,  the  learned  writer  continues:  "  If  there  exists,  then,  a  posi- 
tive duty  to  avoid  harm,  much  more  must  there  exist  the  negative 
duty  of  not  doing  wilful  harm,  subject,  as  all  general  duties  must  be 
subject,  to  the  necessary  exceptions.  The  three  main  heads  of  duty 
with  which  the  law  of  torts  is  concerned,  namely,  to  abstain  from  wil- 
ful injury,  to  respect  the  property  of  others,  and  to  use  due  diligence 
to  avoid  causing  harm  to  others,  are  all  alike  of  a  comprehensive  nar 
tiu'e."  Pollock,  Torts  (8th  Ed.) ,  p.  21.  He  then  quotes  with  approval 
the  statement  of  Lord  Bowen  that  "  at  common  law  there  was  a  cause 
of  action  whenever  one  person  did  damage  to  another,  wilfully  and 
intentionally,  without  just  cause  or  excuse." 


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922  TUTTLE  V.  BUCK  [CHAP.  VHI. 

In  Plant  v.  Woods,  176  Mass.  492,  57  N.  E.  1011,  51  L.  R.  A.  339, 
79  Am.  St.  330,  Mr.  Justice  Hammond  said:  "  It  is  said  also  that, 
where  one  has  the  lawful  right  to  do  a  thing,  the  motive  by  which  he  is 
actuated  is  immaterial.  One  fonn  of  this  statement  appears  in  the 
first  headnote  in  Allen  v.  Flood,  as  reported  in  [1898]  A.  C.  1,  as  fol- 
lows: '  An  act  lawful  in  itself  is  not  converted  by  a  malicious  or  bad 
motive  into  an  unlawful  act  so  as  to  make  the  doer  of  the  act  liable  to 
a  civil  action.'  If  the  meaning  of  this  and  similar  expressions  is  that 
where  a  person  has  the  lawful  right  to  do  a  thing  irrespective  of  his 
motiveVhis  motive  is  immaterial,  the  proposition  is  a  mere  truism.  If, 
however,  the  meaning  is  that  where  a  person,  if  actuated  by  one  kind 
of  a  motive,  has  aJvpi^uLright  to  do  a  thing,  the  act  is  lawful  when 
done  imder  any  conceivable  motive,-ofth^  an  act  lawful  imder  one 
set  of  circumstances  is  therefore  lawful  imder  every  conceivable  set . 
of  circumstances,  the  proposition  does  not  commend  itself  to  us  as 
either  logically  or  legally  accurate."  / 

Similar  language  was  used  by  Mr.  Justice  Wellf  in  Walker  i;. 
Cronin,  107  Mass.  555;  by  Lord  Coleridge  in  Mogul  Steamship  Co. 
v.  McGregor,  21  Q.  B.  Div.  544-553;  by  Lord  Justice  Bowen  in  the 
same  case,  23  Q.  B.  Div.  593;  by  Mr.  Justice  Holmes  in  Aikens  v. 
Wisconsin,  195  U.  S.  194,  204,  25  Sup.  Ct.  3, 49  L.  Ed.  154;  by  Chief 
Justice  McSherry,  in  Klingel  v.  Sharp,  104  Md.  233, 64  Atl.  1029,  7  L. 
R.  A.  (n.  s.)  976,  118  Am.  St.  399;  and  by  Judge  Sanborn  m  his  dis- 
senting opinion  in  Passaic  Print  Works  v.  Ely  &  Walker  Dry  Goods 
Co.,  105  Fed.  163,  44  C.  C.  A.  426,  62  L.  R.  A.  673.  Numerous  cases 
will  be  found  referred  to  in  the  note  to  this  case  in  62  L.  R.  A.  673, 
and  in  an  article  in  18  Harvard  Law  Rev.  411. 

It  is  freely  conceded  that  there  are  many  decisions  contrary  to  this 
view;  but,  when  carried  to  the  extent  contended  for  by  the  appellant, 
we  think  they  are  unsafe,  imsoimd,  and  illy  adapted  to  modem  condi- 
tions. To  divert  to  one's  self  the  customers  of  a  business  rival  by  the 
offer  of  goods  at  lower  prices  is  in  general  a  legitimate  mode  of  serv- 
ing one's  own  interest,  and  justifiable  as  fair  competition.  But  when  a 
man  starts  an  opposition  place  of  business,  not  for  the  sake  of  profit 
to  himself,  but  regardless  of  loss  to  himself,  and  for  the  sole  piupose 
of  driving  his  competitor  out  of  business,  and  with  the  intention  of 
himself  retiring  upon  the  accomplishment  of  his  malevolent  piupose, 
he  is  guilty  of  a  wanton  wrong  and  an  actionable  tort.  In  such  a  case 
he  would  not  be  exercising  his  legal  right,  or  doing  an  act  which  can 
be  judged  separately  from  the  motive  which  actuated  him.  To  call 
such  conduct  competition  is  a  perversion  of  teims.  It  is  simply  the 
application  of  force  without  legal  justification,  which  in  its  moral 
quality  may  be  no  better  than  highway  robbery. 

Nevertheless,  in  the  opinion  of  the  writer  this  complaint  is  insuffi- 
cient. It  is  not  claimed  that  it  states  a  cause  of  action  for  dander. 
No  question  of  conspiracy  or  combination  is  involved.    Stripped  of 


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CHAP.  VIII.]  DX7NSHEE  V.  STANDARD  OIL  CO.  923 

the  adjectives  and  the  statement  that  what  was  done  was  for  the  sole 
purpose  of  mjnring  the  plaintiff,  and  not  for  the  purpose  of  serving  a 
Intimate  purpose  of  the  defendant,  the  complaint  states  facts  which 
in  themselves  amount  only  to  an  ordinary  every  day  business  transac- 
tion. There  is  no  allegation  that  the  defendant  was  intentionally  run- 
ning the  business  at  a  financial  loss  to  himself,  or  that  after  chiving 
the  plaintiff  out  of  business  the  defendant  closed  up  or  intended  to 
close  up  his  shop.  From  all  that  appears  from  the  complaint  he  may 
have  opened  the  barber  shop,  energetically  sought  busmess  from  his 
acquaintances  and  the  customers  of  the  plaintiff,  and  as  a  result  of  his 
enterprise  and  conunand  of  capital  obtained  it,  with  the  result  that  the 
plaintiff,  from  want  of  capital,  acquaintance,  or  enterprise,  was  un- 
able to  stand  the  competition  and  was  thus  driven  out  of  business. 
The  facts  thus  allied  do  not,  in  my  opinion,  in  themselves,  without 
reference  to  the  way  in  which  they  are  characterized  by  the  pleader, 
tend  to  show  a  malicious  and  wanton  wrong  to  the  plaintiff. 

A  majority  of  the  justices,  however,  are  of  the  opinion  that,  on  the 
principle  declared  in  the  foregoing  opinion,  the  complaint  states  a 
cause  of  action,  and  the  order  is  therefore  affirmed. 

Affirmed. 

Jaqgabd,  J.,  dissents,^ 


Weaver,  J.,  m  DUNSHEE  v.  STANDARD  OIL  COMPANY 

(1911)  152  Iowa  Reports,  618. 

As  we  understand  appellants'  contention,  it  is  that  their  conduct  did  not 
transgress  the  bounds  of  legitimate  competition,  and  that  so  long  as  they 
kept  within  this  limitation  the  question  of  the  alleged  malice  or  motive  in- 
spiring their  acts  is  wholly  immaterial.  Cases  involving  the  question  thus 
suggested  have  frequently  arisen,  both  in  this  country  and  in  England,  and 
there  is  much  in  harmony  in  the  expressions  of  judicial  opinion  thereon. 
Many  authorities  may  be  found  holding  without  apparent  qualification  or 
exception,  that  the  law  takes  no  account  whatever  of  motives  as  constituting 
an  element  of  civil  wrong.  In  other  words,  if  a  man  do  a  thing  which  is  other- 
wise lawful,  the  fact  that  he  does  it  maliciously  and  for  the  express  purpose  of 
injuring  his  neighbor  affords  the  latter  no  remedy  at  law.  Such  is  the  net 
effect  of  Raycroft  w.  Tayntor,  68  Vt.  219,  35  Atl.  53,  33  L.  R.  A.  225,  54  Am. 
St.  Rep.  882;  Jenkins  v.  Fowler,  24  Pa.  308,  and  others  of  that  class.  If  this 
be  the  correct  view  of  the  law,  a  man  may  excavate  the  earth  near  the  bound- 
ary of  his  own  land  for  the  mere  purpose  of  seeing  the  foundation  of  the  house 
of  his  neighbor  slide  into  the  pit  thus  prepared  for  it;  he  may  dig  throu^  his 

*  In  Holbrook  v,  Morrison.  214  Mass.  209.  a  land  owner  put  a  sign  on  her  land 
reading,  "  For  Sale.  Best  Offer  From  Colored  Family.'*  Ddendant  wished  to  sell 
but  was  also  moved  by  ill  will  towsod  plaintiffs,  whose  real  estate  business  was 
seriously  interfered  witn  by  the  threatened  sale.  See  Ames,  How  Far  an  Act  May 
Be  a  Tort  Because  of  the  Wron^ul  Motive  of  the  Actor,  18  Harvard  Law  Rev.  411, 
420;  Smith,  Crucial  Issues  inLabor  Litigation,  20  Harvard  Law  Rev.  429,  453, 
455. 


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own  soil  to  the  subterranean  sources  of  his  neighbor's  spring  or  well  and 
divert  the  water  into  a  ditch,  where  it  will  serve  no  purpose  of  use  or  profit 
to  himself  or  any  one  else;  if  a  banker  or  merchant,  he  may  punish  the  black- 
smith who  refuses  to  patronize  him  by  temporarily  establishing  a  shop  on 
the  next  lot  and  hiring  men  to  shoe  horses  without  money  and  without  price, 
until  he  has  driven  the  offending  smith  to  come  to  his  terms  or  to  go  out  of 
business;  and  if  a  farmer,  dependent  upon  a  subterranean  supply  of  water 
for  the  irrigation  of  his  soil  or  watering  of  his  live  stock,  he  may  contrive  to 
ruin  his  competing  neighbor  by  wasting  the  surplus  not  reasonably  required 
for  his  own  use.  The  laws  of  competition  in  business  are  harsh  enou^  at 
best;  but  if  the  rule  here  suggested  were  to  be  carried  to  its  logical  and  seem- 
ingly unavoidable  extreme  there  is  no  practical  limit  to  the  wrongs  ^i^iich  may 
be  justified  upon  the  theory  that  '^  it  is  business/'  Fortunately,  we  think, 
there  has  for  many  years  been  a  distinct  and  growing  tendency  of  the  courts 
to  look  beneath  the  letter  of  the  law  and  give  some  effect  to  its  beneficent 
spirit,  thereby  preventing  the  perversion  of  the  rules  intended  for  the  pro- 
tection of  human  rights  into  engines  of  oppression  and  wrong.  It  is  doubt- 
less true  that  under  many  circumstances  an  act  is  legally  ri^t  and  defensible 
without  regard  to  the  motive  which  induces  or  characterizes  it;  but  there  is 
abundance  of  authority  for  saying  that  this  is  by  no  means  the  universal  rule, 
and  that  an  act  which  is  legally  ri^t  when  done  without  malice  may  become 
legally  wrong  when  done  maliciously,  wantonly,  or  without  reasonable  cause. 
In  Panton  v,  Holland,  17  Johns.  (N.  Y.)  92,  8  Am.  Dec.  369,  it  is  stated  as  a 
general  rule  that,  ''  In  the  exercise  of  a  lawful  ri^t,  a  party  may  become 
liable  to  an  action  where  it  appears  that  the  act  was  done  maliciously."  See 
also,  Greenleaf  v,  Francis,  18  Pick.  (Mass.)  117;  Chesley  r.  King,  74  Me.  164, 
43  Am.  Rep.  669;  Flaherty  v.  Moran,  81  Mich.  62,  46  N.  W.  381,  8  L.  R.  A. 
183,  21  Am.  St.  Rep.  610;  Sankey  v.  St.  Marys,  8  Mont.  266,  21  Pac.  23; 
Harbison  v.  White,  46  Conn.  106;  Stillwater  v.  Farmer,  89  Minn.  68, 93  N.  W. 
907, 60  L.  R.  A.  876, 99  Am.  St.  Rep.  641 ;  Ohio  Oil  Company  v.  Indiana,  150 
Ind.  698,  50  N.  E.  1124;  Barclay  v.  Abraham,  121  Iowa,  619,  96  N.  W.  1080, 
64  L.  R.  A.  265,  100  Am.  St.  Rep.  366.  The  same  principle  has  been  fre- 
quently applied  in  the  decision  of  trade  and  labor  controversies,  thou^  not 
without  other  instances  in  which  it  has  been  repudiated.  See  People  v,  Pethe- 
ram,  64  Mich.  262,  31  N.  W.  188;  Walker  v.  Cronin,  107  Mass.  666;  Van 
Horn  V.  Van  Horn,  62  N.  J.  Law,  284, 20  Atl.  486, 10  L.  R.  A.  184;  Hawarden 
V,  Coal  Co.,  Ill  Wis.  645,  87  N.  W.  472, 66  L.  R.  A.  828;  Graham  v.  Raiboad 
Co.,  47  La.  Ann.  214,  16  South.  806,  27  L.  R.  A.  416,  49  Am.  St.  Rep.  366; 
Tuttle  V.  Buck,  107  Minn.  146,  119  N.  W.  946,  22  L.  R.  A.  (n.  s.)  699,  131 
Am.  St.  Rep.  446;  Plant  v.  Woods,  176  Mass.  492,  67  N.  E.  1011,  61  L.  R.  A. 
339,  79  Am.  St.  Rep.  330;  Barr  v.  Council,  63  N.  J.  Eq.  101,  30  Atl.  881; 
Toledo,  Ac.  Ry.  Co.  v.  Penn.  Co.,  (C.  C.)  54  Fed.  730, 19  L.  R.  A.  387;  Stevens 
V.  Kelly,  78  Me.  446,  6  Atl.  868,  67  Am.  Rep.  813;  Purington  v,  Hinchcliffe, 
219  lU.  169,  76  N.  E.  47,  2  L.  R.  A.  (n.  s.)  824, 109  Am.  St.  Rep.  322.  In  the 
Van  Horn  Case,  swpray  the  court  says:  "  While  a  trader  may  engage  in  the 
sharpest  competition  with  those  in  like  business  by  holding  out  extraordinary 
inducements,  .  .  .  yet,  when  he  oversteps  that  line  and  commits  an  act  with 
the  malicious  intent  of  inflicting  injury  upon  his  rival's  business,  his  conduct 
is  illegal,  and  if  damage  results  from  it  the  injured  party  is  entitled  to  re- 
dress. Nor  does  it  matter  whether  the  wrongdoer  effects  his  object  by  persua- 
sion or  by  false  representation.   The  court  looks  through  the  instrumentality 


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or  means  used  to  the  wrong  perpetrated  with  the  malicious  intent  and  bases 
the  ri^t  of  action  on  that/'  Quoting  this  language  in  Barr  v,  CJouncil,  supra, 
the  same  court  adds:  **  The  ri^t  of  action  depends,  then,  not  so  much  upon 
the  nature  of  the  act,  as  upon  the  intent  with  which  it  is  done,  always  assum- 
ing that  injury  has  attended  the  doing  of  it."  In  Parkinson  v.  Council,  154 
Cal.  581,  98  Pac.  1027,  21  L.  R.  A.  (n.  b.)  550,  the  court,  while  reaching  the 
opposite  conclusion  generally,  concedes  it  to  be  the  law  that:  "  Any  injury  to 
a  lawful  business,  whether  the  result  of  conspiracy  or  not,  is  prima  fade  ac- 
tionable, but  may  be  defended  on  the  ground  that  it  was  merely  a  lawful  effort 
of  the  defendants  to  promote  their  own  welfare.  To  defeat  this  plea  of  justi- 
fication, the  plaintiff  may  offer  evidence  that  the  acts  of  the  defendants  were 
inspired  by  express  malice,  and  were  done  for  the  purpose  of  injuring  the  plain- 
tiff, and  not  to  benefit  themselves." 

Dealing  wit^  the  perplexities  arising  in  the  effort  to  sustain,  on  the  one 
hand,  the  widest  practicable  liberty  of  men  to  engage  in  any  and  every  line  of 
business,  and,  on  the  other,  to  protect  the  business  of  each  from  wrongful 
encroachment  or  interference  by  others,  the  New  Hampshire  court  after  refer- 
ence to  many  of  the  decided  cases,  has  lately  said:  "  The  more  recent  authori- 
ties reason  that,  as  the  ri^t  to  deal  or  not  to  deal  with  others  is  inherent  in  the 
idea  of  Anglo-&ucon  liberty,  prima  facie  a  man  may  demand  an  open  market, 
and,  since  this  is  so,  one  who  interferes  with  this  open  market  must  justify  his 
acts,  or  respond  in  damages.  Thus  far  these  authorities  are  uniform,  but  when 
they  proceed  to  the  determination  of  what  amounts  to  a  justification  they 
differ  widely.  The  cause  is  not  far  to  seek.  The  rule  they  apply  is  that  of 
reasonable  conduct;  yet  they  decide  each  case  as  though  it  involved  only  a 
question  of  law.  In  reality,  the  issue  is  largely  one  of  fact,  and  the  result  is 
what  would  be  expected.  Judges  are  men,  and  their  decisions  upon  complex 
facts  must  vary  as  those  of  juries  might  on  the  same  facts.  Calling  one  deter- 
mination an  opinion  and  the  other  a  verdict  does  not  alter  human  nature,  nor 
make  that  uniform  and  certain  which  from  its  nature  must  remain  variable 
and  uncertain.  While  these  cases  go  too  far  in  what  they  decide  as  questions 
of  law,  yet  the  test  they  constantly  declare  they  are  applying  is  the  true  one. 
The  standard  is  reasonable  conduct  under  all  the  circumstances  of  the  case." 
Huskie  v.  Griffin,  75  N.  H.  345,  74  Atl.  595,  27  L.  R.  A.  (n.  s.)  966.  See,  also, 
Doremus  v.  Hennesy,  176  lU.  608,  52  N.  E.  924, 54  N.  E.  524, 43  L.  R.  A.  797, 
802, 68  Am.  St.  Rep.  203;  Horan  v.  Bums,  72  N.  H.  93, 54  Atl.  945, 62  L.  R.  A. 
602, 101  Am.  St.  Rep.  670;  Ertz  v.  Produce  Exchange,  79  Minn.  140, 81 N.  W. 
737,  48  L.  R.  A.  90,  79  Am.  St.  Rep.  433.  As  suggested  in  the  foregoing  quo- 
tation, no  definition  or  standard  of  reasonable  cause  can  be  stated  which  will 
insure  absolute  uniformity  or  even  consistency  in  the  decision  of  such  cases, 
because  the  issue  presented  is  in  its  essence  one  of  fact,  and  the  same  facts  and 
circumstances  will  not  always  appeal  with  like  effect  to  the  minds  of  all  jurors 
or  of  all  judges.  It  is  for  this  reason  that,  save  in 'those  exceptional  cases 
where  the  case  of  the  plaintiff  or  the  defendant  is  so  clear  and  undisputable 
that  all  fair-minded  persons  are  forced  to  the  same  conclusion,  controversies  of 
this  nature,  in  a  trial  at  law,  are  for  the  jiuy,  and  not  for  the  court. 

Coming  to  the  case  in  hand,  we  may  concede  to  the  appellants  the  un- 
doubted right  to  establish  a  retail  oil  business  in  Des  Moines,  to  employ  agents 
and  drivers,  and  send  them  out  over  the  same  routes  and  make  sales  to  the 
same  people  with  whom  the  Crystal  Oil  Company  was  dealing;  but  in  so  doing 
it  was  bound  to  conduct  such  business  with  reasonable  regard  and  considera- 


tion  for  the  equal  right  of  the  Crystal  Company  to  continue  supplying  oil  to 
such  of  its  customers  as  desired  to  remain  with  it.  If,  however,  there  was  no 
real  purpose  or  desire  to  establish  a  competing  business,  but,  under  the  guise 
or  pretence  of  competition,  to  accomplish  a  malicious  piurpose  to  ruin  the  Crys- 
tal Company  or  drive  it  out  of  business,  intending  themselves  to  retire  there- 
from when  their  end  had  been  secured,  then  they  can  claim  no  immunity  under 
the  rules  of  law  which  recognize  and  protect  competition  between  dealers  in 
the  same  line  of  business  seeking  in  good  faith  the  patronage  of  the  same 
people.  And  if,  under  such  pretence  of  competition,  defendants  maliciously 
interfered  with  the  business  of  the  Crystal  Oil  Company,  in  the  manner 
charged,  and  injury  to  the  latter  was  thereby  inflicted,.a  ri^t  of  action  exists 
for  the  recovery  of  damages.  It  may  be  conceded  that  authorities  are  not 
wanting  to  sustain  the  position  that,  even  though  the  Standard  Oil  Company 
had  no  intention  of  becoming  a  retail  dealer  in  oil  in  Dee  Moines,  but  entered 
the  business  of  selling  oil  in  this  manner  temporarily,  for  the  sole  purpose  of 
driving  the  Crystal  Company  out,  it  is  a  matter  into  which  the  courts  will  not 
inquire;  but  we  think  such  precedents  are  out  of  harmony  with  fundamental 
principles  of  justice,  which,  as  we  have  said,  underlie  the  law,  as  well  as  out 
of  hannony  with  the  later  and  better-considered  cases.  True  the  Standard 
Company,  as  a  wholesale  dealer,  would  violate  no  law  in  offering  its  product 
for  sale  at  retail  at  half  price  in  the  territory  supplied  by  the  Crystal  Company, 
but  such  fact,  if  proven,  would  have  a  distinct  bearing  upon  the  reasonableness 
of  its  methods  employed  in  diverting  trade  from  said  company,  as  well  as  upon 
the  charge  that  in  interfering  between  the  Crystal  Company  and  its  customers 
the  Standard  Company  was  actuated  by  malice  or  spirit  of  wanton  assault 
upon  the  business  of  another,  who  had  given  it  offence.^ 


KUZNIAK  i;.  K0ZMIN8KI 

SXJPBEME  COUBT,  MICHIGAN,  DeCEMBEB  17,  1805. 

Reported  in  107  Michigan  ReporUf  444. 

Bill  by  John  Kuzniak  against  Jacob  Eozminski  and  Frances  Eos- 
minski  to  abate  an  alleged  nuisaDce.  From  a  decree  for  complainant, 
defendants  appeal.    Reversed. 

Long,  J.  The  parties  to  this  cause  own  adjoining  lots  in  the  city 
of  Grand  Rapids.  Defendants'  lot  is  on  the  southeasterly  comer  of 
Eleventh  and  Musk^on  streets,  and  upon  which  is  a  large  tenement 
house  facing  both  streets.  The  complainant  owns  the  lot  inmiediately 
south  and  adjoining  the  defendants',  and  upon  which  he  has  a  dwell- 
ing house  facing  Muskegon  street,  and  also  a  tenement  house  about 
60  feet  back  from  Muskegon  street,  and  within  22  inches  of  the  north 
line,  being  the  line  of  defendants'  lot.  At  the  time  this  tenement 
house  was  erected,  defendants  had  upon  their  lot  what  was  called  a 
'^ chicken  shed";    and,  after  complainant's  tenement  house  was 

1  In  this  case,  however,  the  means  used  by  defendant  involved  trespasses  and 
fraud.  See  American  Waltham  Watch  Co.  r.TJnited  States  Watch  Co.,  173  Mass. 
86. 


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erected,  defendants  moved  this  chicken  shed  upon  a  part  of  their  lot 
directly  opposite  coniplainant's  tenement  house,  and  within  24  inches 
of  the  lot  line,  and  converted  it  into  a  coal  and  wood  house  for  the  use 
of  their  tenants,  who  occupied  the  dwelling  on  said  lot.  This  bill  was 
filed  by  complainant  for  the  purpose  of  having  this  coal  and  wood 
house  of  defendants  declared  a  nuisance,  and  to  compel  them  to  re- 
move the  same.  The  claim  made  by  the  bill  is  that  the  defendants 
removed  the  building  to  that  place  through  spite  and  from  a  malicious 
motive,  and  not  because  it  was  needed  for  any  useful  purpose.  De- 
fendants answered  the  bill,  denying  that  they  were  actuated  by  maUce 
in  putting  the  buildin'g  there,  and  averred  that  it  was  so  placed  for  the 
use  of  their  tenants  for  wood  and  coal.  The  testimony  was  taken  in 
open  court,  and  the  court  found  that  the  building  was  a  nuisance,  and 
a  decree  was  entered  directing  the  defendants  to  remove  the  building 
within  60  days  from  the  date  of  the  decree,  and  that,  in  default  of 
such  removal,  the  sheriff  of  the  coimty  remove  the  same,  at  the  cost 
and  expense  of  defendants.  The  complainant  was  awarded  the  costs 
of  the  suit.    Defendants  appeal. 

It  was  held  in  Flaherty  v.  Moran,  81  Mich.  52,  that  a  fence  erected 
maliciously,  and  with  no  other  purpose  than  to  shut  out  the  Ught  and 
air  from  a  neighbor's  window,  was  a  nuisance,  and  the  decree  of  the 
court  below  ordering  its  removal  was  affirmed;  but  that  decision  was 
placed  on  the  ground  that  the  fence  served  no  useful  piupose,  and 
was  erected  solely  from  a  malicious  motive.  In  the  present  case  the 
building  erected  by  the  defendants  was  for  a  useful  purpose;  and, 
while  there  may  have  been  some  malice  displayed  in  putting  it  so 
near  the  complainant's  house  as  to  shut  off  some  of  the  light,  that 
would  not  be  a  sufficient  reason  upon  which  to  foimd  a  right  in  com- 
plainant to  have  the  building  removed.  Defendants  had  a  right  to 
erect  a  building  upon  their  own  premises,  and  the  decisions  have  been 
quite  imif orm  to  the  effect  that  the  motives  of  a  party  in  doing  a  legal 
act  cannot  form  the  basis  upon  which  to  found  a  remedy.  In  Allen  v. 
Einyon,  41  Mich.  282,  it  was  held  that  the  motive  is  of  no  consequence 
when  the  party  does  not  violate  the  rights  of  another.  In  Hawkins  v. 
Sanders,  45  Mich.  491,  it  was  held  that  there  was  no  right  of  prospect 
which  would  prevent  the  erection  of  an  awning  on  a  neighboring  lot. 
The  case  does  not  fall  within  the  rule  of  Flaherty  v.  Moran,  supra, 
and  the  court  below  was  in  error  in  directing  the  removal  of  the  build- 
ing. That  decree  must  be  reversed,  and  a  decree  entered  here  dis- 
missing complainant's  bill,  with  costs  of  both  courts  to  the  defendants. 

The  other  Justices  concurred.^ 

»  See  Faloon  v.  Schilling,  29  Kan.  292. 

"  Spile  fenced  Malicious  use  of  property  to  the  injury  of  a  neighbor  was  held 
not  actionable  in  Capital  Bank  v.  Henty,  7  A.  C.  741.  766  (semft^;  GiUer  v.  West, 
162  Ind.  17;  Brostrom  v,  Lauppe,  179  Mass.  315;  Bordeaux  v.  Greene,  22  Mont. 
254;  Mahan  v.  Brown,  13  Wend.  261;  Auburn  Co.  v,  Douglass,  9  N.  Y.  444 
(sem6^);  Pickard  v,  Collins,  23  Barb.  444;  Levy  v.  Brothere,  4  Misc.  48;  Letts  v. 


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HORAN  V.  BYRNES 
SuPBEMB  Court,  New  Hampshire,  April  7, 1903. 
Reported  in  72  New  Hampshire  Reports,  93. 

Case,  under  sections  28  and  29,  chapter  143,  Public  Statutes,  for 
maintaining  a  structure  in  the  nature  of  a  fence,  in  violation  of  the 
statute. 

Upon  the  trial,  defendant  moved  for  a  nonsuit,  on  the  groimd  that 
the  statute  is  unconstitutional.  The  motion  was  denied,  and  defend- 
ant excepted. 

Kessler,  54  Ohio  St.  73;  Eoblegard  v.  Hale,  60  W.  Va.  37;  Metzger  v.  Hochrem, 
107  WiB.  267.       -V 

CarUra  Norton  v,  Randolph,  176  Ala.  381:  Burke  v.  Smith,  69  Mich.  380; 
Flaherty  v,  Moran,  81  Mich.  52;  Kirkwood  v,  Finegan,  95  Mich.  543;  Peek  v.  Roe, 
110  Mich.  52;  Barger  v,  Barringer,  151  N.  C.  433.  See  Wilson  v.  Irwin,  144  Ky. 
311;  Meti  v,  Tiemey,  13  N.  M.  363;  Smith  v.  Speed,  11  Okl.  95;  Haveratick  v. 
Sipe,  33  Pa.  St.  368;  Shell  v.  Kenmierer,  13  Phila.  502;  McCorkle  v.  Driskell, 
(Tenn.)  60  S.  W.  172. 

Malicious  diversion  of  percolaHng  water  was  held  to  dye  no  light  of  action  in 
Corporation  of  Bradford  v.  Pickles,  [1895]  A.  C.  587;  Meeker  v.  East  Ora^ige,  76 
N.  J.  Law,  435;  Phelps  r.  Nowlen,  72  N.  Y.  39;  Chatfield  v.  Wilson,  28  Vt.  49; 
Huber  v.  Merkel,  117  Wis.  355. 

C<mtra  Chasemore  v.  Richards,  7  H.  L.  Cas.  349,  388  (sernble);  Roath  v.  Dris- 
coll,  20  Conn.  533,  540-44  (semble);  Chedev  v.  King,  74  Me.  164  (semble); 
Stevens  v.  Kelley,  78  Me.  445,  452;  Greenleaf  t>.  Francis,  18  Pick.  119  (semble); 
Swett  V,  Cutts,  50  N.  H.  439,  447  (semble);  Wyandot  Club  Co.  r.  Sells,  3  Ohio 
N.  P.  210:  Wheatley  v,  Bauj^,  25  Pa.  St.  528,  538  (semble);  Haldeman  v.  Bruck- 
hart,  45  Pa.  St.  514  (semble);  Lybe's  Appeal,  106  Pa.  St.  626  (semble);  Williams 
r.  Laden,  161  Pa.  St.  283  (semble);  MiUer  v.  Black  Rock  Co.,  99  Va.  747  (semble). 

But  cases  of  this  type  are  now  coming  to  be  treated  on  a  different  principle  of 
waste  or  unreasonable  use  of  water  underlying  neighboring  tracts.  Gagnon  v, 
French  Lick  Hotel  Co.,  163  Ind.  687;  Barclay  v.  Abraham,  121  la.  619;  Stfllwater 
Water  Co.  v.  Farmer,  89  Minn.  58;  Springfield  Waterworks  Co.  v,  Jenkins,  62  Mo. 


App.  74. 
(DHi 


^  ,  Has  the  owner  of  land  the  same  ownership  and  control  of  percolating  water 
(water  passing,  or  filtering,  through  the  ground  beneath  the  surface  of  the  earth, 
without  flowing  in  definite  channels),  that  he  has  of  the  soil,  e.^.,  the  sand  and  the 
rocks? 

Or  (2)  has  he  only  a  limited  and  qualified  right  in  the  percolating  water;  a 
right  of  reasonable  user  Umited  by  the  correlatiye  ri^ts  of  ms  neij^bors  ? 

On  those  questions  there  is,  in  recent  cases,  a  coimict  of  authonty.  For  illus- 
tratiye  cases  endorsing  the  fiist  theory,  see  Acton  t;.  Blundell,  12  M.  A  W.  324; 
Mayor  of  Bradford  v.  Pickles,  [1895]  A.  C.  587;  Meeker  v.  East  Orange,  76  N.  J. 
Law,  435.  For  illustratiye  cases  fayoring  the  second  theory,  see  Bassett  v,  Salis- 
bury Mfg.  Co.,  43  N.  H.  569  (where  the  ouestion  related  to  tne  right  of  the  defend- 
ant to  preyent  water  percolating  under  the  surface  of  plaintiff's  knd  from  passing 
off  through  defendant's  land);  Katz  v.  Walkinshaw,  141  Cal.  116,  140,  141. 

We  are  concerned  here  only  to  point  out  how  the  adoption  of  one  or  the  other  of 
the  aboye  conflicting  yiews  may  affect  the  materiality  of  the  landowner's  motiye  in 
the  use  of  percolating  water. 

If  the  first  theory  is  adopted,  then,  in  some  jurisdictions,  the  landowner  would 
not  be  held  liable,  eyen  though  actuated  b}r  bad  motiye  (Mayor  of  Bradford  v. 
Pickles,  [1895]  A.  C.  587);  and,  in  all  other  jurisdictions,  he  would  be  liable  only 
when,  and  because,  he  was  actuated  by  bad  motiye. 

But  if  the  second  theory  is  adopted,  the  landowner  might  frequently  be  held 
liable,  irrespectiye  of  motiye.  On  the  second  theory  percmatinj^  water  might  be 
regarded  as,  in  a  certain  sense,  the  common  property  oi  the  adjoinmg  owners  (bear- 


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CHAP.  Vm.]  HORAN  V.  BYRNES  929 

Verdict  for  the  plaintifif .^ 

Parsons,  C.  J.  "  Any  fence  or  other  structure  in  the  nature  of  a 
fence,  unnecessarily  exceeding  five  feet  in  height,  erected  or  main- 
tained for  the  piupose  of  annoying  the  owners  or  occupants  of  adjoin- 
ing property,  shall  be  deemed  a  private  nuisance. 

"  Any  owner  or  occupant,  injured  either  in  his  comfort  or  the  en- 
joyment of  his  estate  by  such  nuisance,  may  have  an  action  of  tort  for 
the  damage  sustained  thereby. 

'^  If  the  plaintiff  recovers  judgment  in  the  action,  the  defendant 
shall  cause  the  removal  of  the  nuisance  within  thirty  days  from  the 
date  of  the  judgment^  and  for  each  day  he  shall  permit  the  nuisance 
to  remain  siter  the  expiration  of  said  thirty  days  he  shall  incur  a 
penalty  of  ten  dollars  for  the  use  of  the  party  injured."  P.  S.  c.  143, 
88.  28,  29,  30. 

The  act  forbids  the  use  by  one  landowner  of  his  land  for  the  un- 
necessary erection  of  a  fence  exceeding  five  feet  in  height,  when  the 
purpose  of  such  unnecessary  height  is  the  annoyance  of  the  adjoining 
owner  or  occupant,  if  such  imnecessary  height  injures  the  adjoining 
owner  in  his  comfort  or  the  enjoyment  of  his  estate.  The  claim  of  the 
defendant  in  support  of  his  motion  for  a  nonsuit,  that  the  statute  is 
unconstitutional,  raises  the  question  whether  the  statutory  prohibi- 
tion is  an  interference  with  the  defendant's  **  natural,  essential,  and 
inherent ''  right  of  '^  acquiring,  possessing,  and  protecting  property,'' 
or  deprives  him  of  that  protection  in  its  enjoyment,  which  is  the  right 
of  "  every  member  of  the  community."    Bill  of  Rights,  arts.  2, 12. 

The  constitutional  objection  made  to  the  present  statute  raises  the 
question,  if  it  appears  that  the  statute  is  an  interference  with  the  de- 
fendant's prop^y  right,  whether  the  interference  is  or  not  one  which 
the  legislature  might  properly  make  as  a  regulation  of  the  use  of 
property.  The  constitutionality  of  similar  statutes  has  been  upheld 
upon  the  latter  ground,  as  being  merely  a  small  limitation  of  existing 
rights  incident  to  property,  which  xmder  the  police  power  may  be  im- 

ing  some  analogy  to  an  underground  lake) :  and  it  would  be  held  that  each  owner 
is  entitled  to  only  a  reasonable  share,  and  is  entitled  to  use  that  share  only  for 
certain  purposes.  See  3  Famham,  Waters,  §  935.  Upon  this  view  an  owner  who 
uses  more  than  his  share,  or  who  uses  it  for  purposes  outside  those  legally  allow- 
able, would  be  liable  entirely  irrespective  of  motive.  "  Later  American  cases,'' 
says  Professor  Huffcut,  "  transfer  the  emphasis  from  the  showing  of  '  malice  '  to 
a  showing  of  '  unreasonable  user,'  which  may  or  may  not  be  accompanied  by 
malice/'    13  Yale  Law  Journal,  222. 

We  may. add  that  if  bad  motive  should  not  be  held,  in  itself,  a  substantive 
ground  of  liability,  yet  the  existence  of  bad  motive  mi^mt  be  a  piece  of  evidence 
bearing  upon  the  question  of  reasonable  user.  User  for  tne  sole  purpose  of  gratify- 
ing ill  will  might  not  be  deemed  reasonable. 

On  the  general  question  of  liability  for  malevolent  acts  in  reference  to  percolat- 
ing water,  see,  Ames,  How  Far  an  Act  May  Be  a  Tort  Because  of  the  Wron^ui 
Motive  of  the  Actor,  18  Harvard  Law  Rev.  411,  414-415;  Huffcut,  Percolatmg 
Waters:  the  Rule  of  Reasonable  User,  13  Yale  Law  Joum.  222. 

'  Statements  abridged.    Portions  of  opinion  omitted. 


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posed  for  the  sake  of  preventing  a  manifest  evil.  "  It  is  hard,"  it  has 
been  said,  **  to  imagine  a  more  insignificant  eurtaibnent  of  the  rights 
of  property.''  Rideout  v.  Knox,  148  Mass.  368,  372,  373;  Karasek  v. 
Peier,  22  Wash.  419;  Western  Ac.  Co.  v.  Knickerbocker,  103  Cal. 
111.  Similar  statutes  in  Maine,  Vermont,  and  Connecticut  have 
been  before  the  courts,  but  it  has  not  been  suggested  that  the  power  of 
the  legislature  to  adopt  them  has  been  attacked  in  those  states.  Lord 
V.  Langdon,  91  Me.  221;  Harbison  v.  White,  46  Conn.  106;  Gallagher 
V.  Dodge,  48  Conn.  387,  40  L.  R.  A.  181-183,  note. 

The  present  statute  was  passed  in  1887.  Laws  1887,  c.  91.  In 
Hunt  V.  Coggin,  66  N.  H.  140,  the  verdict  was  for  the  defendant;  and 
in  Horan  v.  Byrnes,  70  N.  H.  531,  the  defendant  waived  any  objection 
to  the  statute  upon  this  ground.  In  Lovell  v.  Noyes,  69  N.  H.  263, 
the  question  was  whether  a  building  was  within  the  terms  of  the 
statute.  The  constitutional  question  is  now  presented  for  the  first 
time. 

It  is  objected  in  answer  to  the  £u*gument  that  statutes  like  the  pres- 
ent are  within  the  constitutional  exercise  of  the  police  power,  involv- 
ing for  the  general  good  some  slight  limitation  of  existing  property 
rights,  that  if  one  incident  of  the  property  right  in  real  estate  is  the 
right  to  use  it  maliciously  for  the  sole  purpose  of  injming  another,  it 
is  as  much  an  invasion  of  the  right  to  take  it  from  a  small  portion  as 
from  the  whole  of  one's  property;  and  that  the  matter  in  question 
concerns  private  individuals  and  not  the  public  in  general,  and  hence 
does  not  come  within  the  police  power.  State  v.  White,  64  N.  H.  48, 
50.  It  may  be  thought  these  objections  are  successfully  answered  in 
the  cases  cited,  or  that,  if  not  there  answered,  a  satisfactory  answer 
can  be  found.  But  a  discussion  of  these  objections  does  not  reach  the 
fimdamental  question  in  the  case. 

"  The  statute  was  designed  to  prevent  an  act  the  sole  effect  of  which 
would  be  to  annoy  or  injure  another."  Lovell  v.  Noyes,  69  N.  H.  263. 
The  primary  question,  therefore,  is  whether  one's  right  to  use  prop- 
erty solely  to  injure  another  is  a  part  of  his  property  right  in  real 
estate,  which  is  so  protected  by  the  constitution  that  the  prohibition 
of  such  use  is  not  within  the  general  power  of  legislation  "  for  the 
benefit  and  welfare  of  this  state  and  for  the  governing  and  ordering 
thereof."  Const,  art.  5.  Upon  the  question  whether  a  fence  on  or 
near  the  division  Une  between  adjoining  landowners,  maliciously  built 
to  an  imreasonable  height  for  the  sole  purpose  of  annoying  and  injur- 
ing the  adjoining  owner  or  occupant,  is  a  nuisance  which  can  in  the 
absence  of  statutory  authority  be  abated  by  an  injimction,  the  courts 
are  in  conflict.  Letts  v.  Kessler,  54  Ohio  St.  73,  answers  the  question 
in  the  negative,  while  an  opposite  conclusion  is  reached  in  Michigan. 
Burke  v.  Smith,  69  Mich.  380;  Flaherty  v.  Moran,  81  Mich.  52; 
Kirkwood  v.  Finegan,  95  Mich.  543.  In  Rideout  v.  Knox,  148  Mass. 
368,  and  Karasek  v.  Peier,  22  Wash.  419,  cases  in  which  the  power  of 


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the  legislature  to  enact  a  statute  similar  to  that  under  consideration 
is  attacked  and  upheld,  it  is  conceded  ^*  that  to  a  large  extent  the 
power  to  use  one's  property  malevolently,  in  any  way  which  would 
be  lawful  for  other  ends,  is  an  incident  of  property  which  cannot  be 
taken  away  even  by  legislation."    Eideout  v.  Knox,  supra,  372. 

The  conclusion  that  a  landowner's  property  ri^t  in  real  estate 
includes  the  right  to  use  it  solely  for  the  injiuy  and  annoyance  of 
his  neighbor,  without  intending  to  subserve  any  useful  piupose  of  his 
own,  is  "  based  upon  a  narrow  view  of  the  effect  of  the  land  titles," 
and  is  reached  "  by  the  strict  enforcement  of  a  technical  rule  of 
ownership  briefly  expressed  in  an  ancient  maxim,"  cujv^  est  solum, 
ejus  est  v^que  ad  coelum.  The  courts  of  this  state  have  had  in  some 
respects,  at  least,  a  different  understanding  of  the  el^nents  of  land- 
ownership.  As  to  the  use  of  land  in  the  control  of  surface  water,  the 
enjoyment  of  water  percolating  beneath  the  surface,  and  the  use  gen- 
erally that  may  be  rightfully  made  of  real  estate  by  the  owner  or 
occupant,  the  test  has  been  considered  to  be  not  merely  whether  the 
act  was  an  exercise  of  dominion  on  the  land  r^ardless  of  the  injiuy 
to  other  land,  but  the  reasonableness  of  the  use  \mder  all  the  circum- 
stances, including  the  necessity  and  advantage  to  one  and  the  unavoid- 
able injury  to  the  other.  Franklin  v.  Durgee,  71  N.  H.  186;  Ladd  v. 
Brick  Co.,  68  N.  H.  185;  Swett  v.  Cutts,  50  N.  H.  439;  Bassett  v. 
Ck)mpany,  43  N.-H.  569,  577.  It  has  been  said  that  the  rule  of  ab- 
solute dominion  is  easier  of  application.  Chase  v.  Silverstone,  62  Me. 
175,  183.  This  view,  however,  does  not  seem  to  be  upheld  by  the 
diflSculties  met  in  its  appUcation  in  reference  to  surface  waters.  See 
Franklin  v.  Durgee,  71  N.  H.  186,  189.  But  however  that  may  be, 
difficulty  in  administration  is  not  a  sufficient  reason  for  the  denial  of 
justice.  Cases  like  Chatfield  v.  Wilson,  28  Vt.  49,  and  Phelps  v,  Now- 
len,  72  N.  Y.  39,  in  which  the  principle  of  the  maxim  reUed  upon  is 
appUed  to  waters  in  the  soil,  are  not  authority  here,  where  a  contrary 
view  is  entertained.  Franklin  v.  Dui^ee  and  Bassett  v.  Company, 
swpra. 

Aside  from  the  authorities  in  cases  in  which  the  control  of  waters 
was  in  question,  the  leading  case  appears  to  be  Mahan  v.  Brown,  13 
Wend.  261.  Here,  although  the  plaintiff  alleged  that  the  fence  com- 
plained of  was  erected  solely  to  injure  her,  the  decision  is  upon  the 
ground  that  by  the  erection  of  the  fence  the  plaintiff  is  deprived  of  no 
right,  but  is  merely  prevented  from  acquiring  a  right.  If  by  enjoy- 
ment of  light  and  air  across  his  neighbor's  land  for  the  prescriptive 
period  a  landowner  could  acquire  a  right  to  such  enjoyment,  the 
building  of  a  fence  as  an  assertion  of  a  contrary  right  and  to  prevent 
the  acquiring  of  such  easement  would  be  a  building  for  a  necessary 
and  useful  piupose,  and  not  for  the  sole  piupose  of  anno3ring  another. 
The  case  standing  upon  a  view  of  the  effect  of  non-user  of  a  right  to 
build,  now  generally  abandoned  in  this  coimtry  (Wash.  Ease.  490, 


497,  498),  is  not  of  value  in  the  present  discussion.  The  argument 
generally  is,  that  the  motive  with  which  one  does  an  act  otherwise 
lawful  is  immaterial;  and  hence,  as  it  must  be  conceded  that  a  land- 
owner has  the  right  to  build  on  his  land  as  he  conceives  may  best  sub- 
serve his  interests,  the  act  lawful  for  a  useful  Rurpose  is  not  made 
unlawful  and  a  nuisance  merely  by  the  intent  accompanying  it. 

Whether  the  first  proposition  is  entirely  true  may  perhaps  be 
doubted.  Cases  cited  to  support  the  proposition  (Walker  v,  Cronin, 
107  Mass.  555;  Phelps  v.  Nowlen,  72  N.  Y.  39)  do  not  support  it  in 
its  entirety.  See  Chesley  v.  King,  74  Me.  164.  In  Houston  v.  Laflfee, 
46  N.  H.  505,  which  was  trespass  for  cutting  an  aqueduct  pipe  main- 
tained by  the  plaintiff  upon  the  defendant's  land  by  a  parol  license,  it 
was  held  that  if  the  cutting  of  the  pipe  was  done  simply  for  the  piu*- 
pose  of  putting  an  end  to  the  Ucense,  and  without  any  malice  or  in- 
tentional wrong,  the  defendant  would  not  be  Uable;  but  if  the  pipe 
was  cut  "  wantonly,  unnecessarily,  maliciously,  and  with  a  view  .  .  . 
to  injure  the  plaintiff,"  the  defendant  would  be  liable.  It  is  true  that 
an  act  which  one  has  the  right  to  do  imder  all  circumstances,  like  the 
bringing  of  a  suit  upon  a  valid  claim  (Friel  v,  Pliraier,  69  N.  H.  498), 
cannot  be  made  actionable  by  the  motive  which  accompanies  it.  But 
as  applied  to  the  use  of  real  estate  the  argument  begs  the  question 
which  is  whether  the  enjoyment  of  real  estate  includes  the  right  to 
use  it  solely  to  injure  another.  Because  when  emj[Jtoyed  for  a  useful 
purpose  such  use  may  rightfuUy  injure  another,  it  does  not  follow 
that  the  same  use  for  a  wrongful  purpose  may  also  rightfuDy  injure 
another,  except  upon  the  theory  of  absolute  dominion,  for  the  char* 
acter  of  the  use  is  an  element  of  the  right. 

''  As  a  general  proposition,  it  is  safe  to  say  that  the  owner  of  land 
has  a  right  to  msJce  a  reasonable  use  of  his  property;  and  that  right 
extends  as  well  to  an  unlimited  distance  above  the  earth's  surface  as 
to  an  unlimited  distance  below.  He  may  not  only  dig  for  a  founda- 
tion and  a  cellar  as  deep  as  he  pleases,  but  he  may  erect  his  building 
as  high  as  he  pleases  into  the  air,  subject  all  the  time,  of  course,  to  a 
proper  application  of  the  doctrine  contained  in  the  maxim,  sic  lUere 
tuo  ut  alienum  non  Icedas,  The  erection  and  maintenance  of  buildings 
for  habitation  or  business  is  a  customary  and  reasonable  use  of  land. 
Of  course  the  landowner,  in  making  such  erections,  must  be  held  to 
the  exercise  of  all  due  care  against  infringing  the  legal  rights  of  others, 
to  be  determined  by  the  nature  of  the  rights  and  interests  to  be 
affected,  and  all  the  circumstances  of  each  particular  case."  Ladd,  J., 
in  Garland  v.  Towne,  55  N.  H.  55,  58. 

"  Property  in  land  must  be  considered,  for  many  purposes,  not  as 
an  absolute,  imrestricted  dominion,  but  as  an  aggregation  of  qualified 
privileges,  the  limits  of  which  are  prescribed  by  the  equality  of  rights 
and  the  correlation  of  rights  and  obligations  necessary  for  the  highest 
enjoyment  of  land  by  the  entire  community  of  proprietors.  .  .  .   The 


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CHAP.  VIII.]  HORAN  V.  BYRNES  933 

soil  is  often  called  property,  and  this  use  of  language  is  suflSciently 
accurate  for  some  purposes.  But  the  proposition  that  the  soil  is  prop- 
erty conveys  a  very  imperfect  idea  of  the  numerous  and  variously 
limited  rights  comprised  in  landed  estate;  and  it  is  sometimes  neces- 
sary to  remember  that  the  name  of  property  belongs  to  some  of  the 
essential  proprietary  rights  vested  in  the  person  called  the  owner  of 
the  soil.  .  .  .  So  these  proprietary  rights,  which  are  the  only  valuable 
ingredients  of  a  landowner's  property,  may  be  taken  from  him,  with- 
out an  asportation  or  adverse  personal  occupation  of  that  portion  of 
the  earth  which  is  his  in  the  limited  sense  of  being  the  subject  of 
certain  legally  recognized  proprietary  rights  which  he  may  exercise 
for  a  short  time.  .  .  .  One  of  Eaton's  proprietary  rights  was  the  cor- 
relative of  R.'s  duty  of  abstaining  from  such  a  use  of  air  and  water, 
and  from  such  an  interference  with  their  quality  and  circulation,  as 
would  be  imreasonable  and  injurious  to  the  enjoyment  of  Eaton's 
farm."  Thompson  r.  Androscoggin  Co.,  54  N.  H.  545,  551,  552,  554. 
"  Excavations  maliciously  made  in  one's  own  land,  with  a  view  to 
destroy  a  spring  or  well  in  his  neighbor's  land,  could  not  be  regarded 
as  reasonable."    Swett  v.  Cutts,  50  N.  H.  439,  447. 

''  If  a  man  has  no  right  to  dig  a  hole  upon  his  premises,  not  for  any 
benefit  to  himself  or  his  premises,  but  for  the  express  purpose  of 
destroying  his  neighbor's  spring,  why  can  he  be  permitted  to  shut  out 
Ught  and  air  from  his  neighbor's  windows  maliciously,  and  without 
profit  or  benefit  to  himself  ?  By  analogy,  it  seems  to  me  that  the  same 
principle  appUes  in  both  cases,  and  that  the  law  will  interpose  and  pre- 
vent tiie  wanton  injury  in  both  cases.  ...  It  must  be  remembered 
that  no  man  has  a  legal  right  to  make  a  malicious  use  of  his  property 
...  for  the  avowed  purpose  of  damaging  his  neighbor.  To  hold 
otherwise  would  make  the  law  a  convenient  engine  in  cases  like  the 
present  to  injure  and  destroy  the  peace  and  comfort,  and  to  damage 
the  property,  of  one's  neighbor,  for  no  other  than  a  wicked  purpose, 
which  in  itself  is  or  ought  to  be  imlawful.  The  right  to  do  this  can- 
not, in  an  enUghtened  coimtry,  exist  either  in  the  use  of  property  or 
in  any  way  or  manner.  .  .  .  The  right  to  breathe  the  air,  and  to  enjoy 
the  simshine,  is  a  natiuul  one ;  and  no  man  can  pollute  the  atmosphere, 
or  shut  out  the  light  of  heaven,  for  no  better  reason  than  that  the 
situation  of  his  property  is  such  that  he  is  given  the  opportunity  of  so 
doing,  and  wishes  to  gratify  his  spite  and  mahce  towards  his  neigh- 
bor." Morse,  J.,  in  Burke  v.  Smith,  69  Mich.  380,  approved  and 
imanimously  adopted  in  Flaherty  v.  Moran,  81  Mich.  52,  above  cited. 

"  While  one  may  in  general  put  his  property  to  any  use  he  pleases 
not  in  itself  unlawful,  his  neighbor  has  the  same  right  to  the  imdis- 
turbed  enjoyment  of  his  adjoining  property.  .  .  .  What  standard  does 
the  law  provide  ?  .  .  .  Wliatever  may  be  the  law  in  other  jurisdic- 
tions, it  must  be  regarded  as  settled  in  this  state  that  the  test  is  the 
reasonableness  or  imreasonableness  of  the  business  in  question  imder 


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all  the  circumstances."  Ladd  v.  Brick  Co.,  68  N.  H.  186, 186.  "  The 
common-law  right  of  the  ownership  of  land,  in  its  relationship  to  the 
control  of  surface  water,  as  imderstood  by  the  courts  of  this  state  for 
many  years,  does  not  sanction  or  authorize  practical  injustice  to  one 
landowner  by  the  arbitrary  and  imreasonable  exercise  of  the  right  of 
dominion  by  another  "  (Franklin  v.  Durgee,  supra),  but  makes  the 
test  of  the  right  the  reasonableness  of  the  use  imder  all  the  circum- 
stances. In  such  case  the  pmpose  of  the  use,  whether  understood 
by  the  landowner  to  be  necessary  or  useful  to  himself,  or  merely  in- 
tended to  harm  another,  may  be  decisive  upon  the  question  of  right. 
It  cannot  be  justly  contended  that  a  piu*ely  malicious  use  is  a  reason- 
able use.  The  question  of  reasonableness  depends  upon  all  the  cir- 
cxmistances  —  the  advantage  and  profit  to  one  of  the  use  attacked, 
and  the  imavoidable  injury  to  the  other.  Where  the  only  advantage 
to  one  is  the  pleasure  of  injuring  another,  there  remains  no  foimda- 
tion  upon  which  it  can  be  determined  that  the  disturbance  of  the 
other  in  the  lawful  enjoyment  of  his  estate  is  reasonable  or  necessary. 
There  is  no  sound  ground  upon  which  a  distinction  can  be  made 
against  the  plaintiff's  right  to  use  his  land  for  the  enjoyment  of  the 
air  and  light  which  naturally  come  upon  it,  in  favor  of  his  right  to 
use  it  to  enjoy  the  waters  which  naturally  flow  upon  or  imder  it,  ex- 
cept the  fact  that  the  use  of  land  for  buildings  necessarily  cuts  off 
air  and  light  from  the  adjoining  estate.  The  fact  that  the  improve- 
ment of  real  estate  in  this  way  for  a  useful  pmpose,  universally  con- 
ceded to  be  reasonable,  may  affect  the  adjoining  owner's  enjoyment 
of  his  estate  to  the  same  extent  as  a  like  act  done  solely  to  injure  the 
other,  is  not  a  sufficient  reason  for  distinguishing  the  right  to  build 
upon  the  surface  from  the  right  to  dig  below  it  or  to  control  the  sur- 
face itself.  Jurisdictions  which  reject  the  doctrine  of  reasonable 
necessity,  reasonable  care,  and  reasonable  use,  which  "  prevail  in  this 
state  in  a  liberal  form,  on  a  broad  basis  of  general  principle  "  (Haley 
V.  Colcord,  59  N.  H.  7),  as  applied  to  the  ownership  of  real  estate,  in 
favor  of  the  principle  of  absolute  dominion,  may  properly  consider  a 
malicious  motive  immaterial  upon  the  rightfulness  of  a  particular  use; 
but  in  this  state,  to  do  so  would  be  to  reject  the  principle  annoimced 
in  Bassett  v.  Company,  43  N.  H.  569,  and  repeatedly  reaffirmed  dur- 
ing the  last  forty  years. 

It  is  to  be  conceded  that  the  maxim  sic  tUere  tuo  vt  alienum  non 
loedas  is  to  be  applied  as  forbidding  injury,  not  merely  to  the  property, 
but  to  the  right  of  another.  Ladd  v.  Brick  Co.,  68  N.  H.  185;  Pitts- 
burg, Ac.  R'y  V.  Bingham,  29  Ohio  St.  364;  Letts  v.  Kessler,  64  Ohio 
St.  73;  Bonomi  v.  Backhouse,  .E.  B.  &  E.  622,  643;  Jeffries  v.  Wil- 
liams, 5  Exch.  792.  But  the  landowner's  right  in  the  enjoyment  of 
his  estate  being  that  of  reasonable  use  merely,  there  attaches  at.once 
to  each  the  correlative  right  not  to  be  disturbed  by  the  maUcious,  and 
hence  unreasonable,  use  made  by  another.    To  hold  that  a  right  is 


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infringed  because,  by  the  noxious  use  made  by  another,  the  air  com- 
ing upon  a  landowner's  premises  is  made  more  or  less  injurious,  and 
to  deny  the  invasion  of  a  right  by  an  imreasonable  use  which  shuts 
off  air  and  light  entirely,  is  an  attempt  to  boimd  a  right  inherent  and 
essential  to  the  common  enjoyment  of  property  by  the  limitations  of 
an  ancient  form  of  action.  An  unreasonable  use  of  one  estate  may 
constitute  a  nuisance  by  its  diminution  of  the  right  of  enjojmaent  of 
another,  without  furnishing  all  the  elements  necessary  to  maintain  an 
action  giuire  dausum  fregit;  though  in  particular  cases  it  may  be 
said  that  no  right  is  invaded  unless  something  comes  from  the  one 
lot  to  the  other.  Lane  v.  Concord,  70  N.  H.  485,  488,  489;  Thomp- 
son V.  Androscoggin  Co.,  64  N.  H.  545,  552;  Wood,  Nuis.,  s.  611. 
As,  therefore,  the  statute  does  not  deprive  the  plaintiff  of  any  right  to 
reasonable  use,  it  does  not  deprive  him  of  any  property  right.  Hence 
it  is  not  necessary  to  inquire  whether,  as  an  invasion  of  property  rights, 
the  limitation  of  the  statute  is  one  which  might  properly  be  made  for 
the  general  good. 

The  objection  based  upon  the  unconstitutionality  of  the  statute  is 
not  sustained,  and  the  exception  to  the  denial  of  the  motions  for  a 
nonsuit  and  to  direct  a  verdict  upon  that  groimd  is  overruled. 

[The  verdict  was  set  aside  on  account  of  an  erroneous  ruling  as  to 
the  admission  of  evidence.]  ^ 


KEEBLE  V.  HICKERINGILL 

In  the  Queen's  Bench,  Tbinitt  Term,  1706. 
Reported  in  11  East,  574,  note. 

AcrnoN  upon  the  case.  Plaintiff  declares  that  he  was,  8th  Novem- 
ber in  the  second  year  of  the  Queen,  lawfully  possessed  of  a  close  of 
land  called  Minott's  Meadow,  et  de  quodam  vivario,  vocato  a  decoy 
pond,  to  which  divers  wild  fowl  used  to  resort  and  come;  and  the 
plaintiff  had  at  his  own  costs  and  charges  prepared  and  procured  divers 
decoy  ducks,  nets,  machines,  and  other  engines  for  the  decoying  and 
taking  of  the  wild  fowl,  and  enjoyed  the  benefit  in  taking  them:  the 
defendant  knowing  which,  and  intending  to  damnify  the  plaintiff  in 
his  vivary,  and  to  fright  and  drive  away  the  wild  fowl  used  to  resort 
thither,  and  deprive  him  of  his  profit,  did,  on  the  8th  of  November, 
resort  to  the  head  of  the  said  pond  and  vivary,  and  did  discharge  six 

1  In  Rideout  v.  Knox,  148  Mass.  368,  where  a  similar  statute  was  held  consti- 
tutional, it  was  held  error  to  charge  that  defendant  could  not  justify  building  the 
fence  unless  his  sole  motive  was  a  legitimate  use ;  malice  must  be  the  dominant  mo- 
tive. See  also  Ingwerson  v.  Barry,  118  Cal.  342;  Gallagher  v.  Dodge,  48  Conn. 
387:  Hoknes  v.  Fuller,  68  Vt.  207;  Karasek  v.  Peier,  22  Wash.  419;  Jones  t^. 
Williams.  56  Wash.  588;  Ames,  How  Far  an  Act  May  Be  a  Tort  Because  of  the 
Wrongful  Motive  of  the  Actor,  18  Harvard  Law  Rev.  411,  414-415. 


r 


guns  laden  with  gunpowder,  and  with  the  noise  and  stink  of  the  gun- 
powder did  drive  away  the  wild  fowl  then  being  in  the  pond:  and  on 
the  11th  and  12th  days  of  November  the  defendant,  with  design  to 
damnify  the  plaintiff,  and  fright  away  the  wild  fowl,  did  place  him- 
self with  a  gun  near  the  vivary,  and  there  did  discharge  the  said  gun 
several  times  that  was  then  charged  with  the  gunpowder  against  the 
said  decoy  pond^  whereby  the  wild  fowl  were  frighted  away,  and  did 
forsake  the  said  pond.  Upon  not  guilty  pleaded,  a  verdict  was  found 
for  the  plaintiff  and  £20  damages. 

Holt,  C.  J.  I  am  of  opinion  that  this  action  doth  lie.  It  seems  to 
be  new  in  its  instance,  but  is  not  new  in  the  reason  or  principle  of  it. 
For,  first,  tiiis  using  or  making  a  decoy  is  lawful.  Secondly,  tiiis  an- 
ployment  of  his  ground  to  that  use  is  profitable  to  the  plaintiff,  as  is 
the  skill  and  management  of  that  employment.  As  to  the  first,  every 
man  that  hath  a  property  may  employ  it  for  his  pleasure  and  profit,  as 
for  alluring  and  procuring  decoy  ducks  to  come  to  his  pond.  To  learn 
the  trade  of  seducing  other  ducks  to  come  there  in  order  to  be  taken  is 
not  prohibited  either  by  thalaw  of  the  land  or  the  moral  law;  but  it  is 
as  lawful  to  use  art  to  seduce  them,  to  catch  them,  and  destroy  than 
for  the  use  of  mankind,  as  to  kill  and  destroy  wild  fowl  or  tame  cattle. 
Then  when  a  man  useth  his  art  or  his  skill  to  take  them,  to  sell  and  dis- 
pose of  for  his  profit;  tills  is  his  trade;  and  he  that  hinders  another  in 
his  trade  or  livelihood  is  liable  to  an  action  fox  so  hindering  him.  Why 
otherwise  are  scandalous  words  spoken  of  a  man  in  his  profession 
actionable,  when  without  his  profession  they  are  not  so  ?  Though  they 
do  not  affect  any  damage,  yet  are  they  mischievous  in  themselves;  and 
therefore  in  their  own  natiu^  productive  of  damage;  and  therefore  an 
action  lies  against  him.  Such  are  all  words  that  are  spoken  of  a  man 
to  disparage  him  in  his  trade,  that  maV  bring  damage  to  him ;  ihough 
they  do  not  charge  him  with  any  crime  that  may  make  him  obnoxious 
to  pimishment;  as  to  say  a  merchant  is  broken,  or  that  he  is  failing, 
or  is  not  able  to  pay  his  debts,  1  Roll.  60,  1;  all  the  cases  there  put. 
How  much  more,  when  the  defendant  doth  an  actual  and  real  damage 
to  another  when  he  is  in  the  very  act  of  receiving  profit  by  his  employ- 
ment. Now  there  are  two  sorts  of  acts  for  doing  damage  to  a  man's 
employment,  for  which  an  action  lies;  the  one  is  in  respect  of  a 
man's  privilege;  the  other  is  in  respect  of  his  property.  In  that  of 
a  man's  franchise  or  privilege  whereby  he  hath  a  fair,  market,  or  ferry, 
if  another  shall  use  the  like  liberty,  though  out  of  his  limits,  he  shall 
be  liable  to  an  action;  though  by  grant  from  the  King.  But  therein  is 
the  difference  to  be  taken  between  a  Uberty  in  which  the  public  hath  a 
benefit,  and  that  wherein  the  public  is  not  concerned.  22  H.  6, 14, 15. 
The  other  is  where  a  violent  or  malicious  act  is  done  to  a  man's  occu- 
pation, profession,  or  way  of  getting  a  livelihood;  there  an  action  lies 
in  all  cases.  But  if  a  man  doth  him  damage  by  using  the  same  employ- 
ment; as  if  Mr.  Hickeringill  had  set  up  another  decoy  on  his  own 


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ground  near  the  plaintiff's,  and  that  had  spoiled  the  custom  of  the 
plaintiff,  no  action  would  he,  because  he  had  as  much  liberty  to  make 
and  use  a  decoy  as  the  plaintiff.  This  is  like  the  case  of  11  H.  4,  47. 
One  schoolmaster  sets  up  a  new  school  to  the  damage  of  an  ancient 
school,  and  thereby  the  scholars  are  allured  from  the  old  school  to 
come  to  his  new.  (The  action  there  was  held  not  to  lie.)  But  suppose 
Mr.  Hickeringill  should  lie  in  the  way  with  his  guns,  and  fright  the 
boys  from  going  to  school,  and  their  parents  would  not  let  them  go 
thither;  sure  that  schoolmaster  might  have  an  action  for  the  loss  of 
his  scholars.  29  E.  3, 18.  A  man  hath  a  market,  to  which  he  hath  toll 
for  horses  sold:  a  man  is  bringing  his  horse  to  market  to  sell:  a 
stranger  hinders  and  obstructs  him  from  going  thither  to  the  market: 
an  action  lies,  because  it  imports  damage.  Action  upon  the  case  lies 
against  one  that  shall  by  threats  fright  away  his  tenants  at  will.  9  H. 
7,  8;  21  H.  6,  31;  9  H.  7,  7;  14  Ed.  4,  7;  Vide  Rastal.  662;  2  Cro. 
423.  Trespass  was  brought  for  beating  his  servant,  whereby  he  was 
hindered  from  taking  his  toll;  the  obstruction  is  a  damage,  though  not 
the  loss  of  his  service.^ 


IBOTTSON  V.  PEAT 

In  the  Exchbqueb,  Mat  1, 1865. 

Reported  in  3  HurlaUme  &  CoUman,  644. 

Bramwell,  B.*  I  am  also  of  opinion  that  the  plaintiff  is  entitled 
to  judgment.  The  declaration  states  that  the  plaintiff  being  possessed 
of  certain  land,  the  defendant  imlawfully  and  with  intent  to  drive  and 
frighten  away  game  then  being  on  the  land  of  the  plaintiff,  and  to 
prevent  him  from  shooting  them,  fired  rockets  and  combustibles  close 
to  and  over  the  land  of  the  plaintiff,  so  as  to  be  a  nuisance  to  him. 
The  defendant  by  his  plea  achnits  that  the  matter  alleged  is  true,  but 
sets  up  a  right  to  do  what  is  complained  of  for  the  piui)06e  attributed 
to  the  defendant  in  the  declaration,  viz.,  to  prevent  him  from  shooting 
the  game.  Then  what  is  the  reason  given  ?  It  is  this:  —  "  The  game 
which  I  frightened  was  game  which  you  enticed  away  from  the  Duke 
of  Rutland's  land,  by  placing  com  and  other  food  for  them  on  your 
land;  and  therefore  I,  as  the  servant  of  the  Duke,  in  order  to  prevent 
you  from  shooting  the  game,  and  from  continuing  to  entice  them,  did 
the  acts  complained  of."  In  my  opinion  that  is  a  bad  plea.  There  is 
nothing  in  point  of  law  to  prevent  the  plaintiff  from  doing  that  which 
the  plea  alleges  he  has  done.    I  say  "  in  point  of  law,"  because  it  can- 

^  The  rest  of  the  opinion  is  omitted.  This  case  was  followed  in  Carrington  v. 
Taylor,  11  East,  671.  See  Lamprey  v.  Danz,  86  Minn.  317;  Whittaker  r.  Stang- 
vick,  100  Minn.  386;  Meredith  v.  Triple  Island  Gun  Club,  113  Va.  80. 

«  Only  the  opinion  of  Bramwell,  B.,  is  given.  Pollock,  C.  B.,  Martin  and  Pigott^ 
BB.,  concurFea. 


( 


not  be  contended  for  a  moment  that  any  action  would  lie  against  the 
plaintiff.  As  to  the  propriety  of  such  conduct  between  gentlemen  and 
neighbors  I  say  nothing.  Where  a  person's  game  is  attracted  from  his 
land,  he  ought  to  offer  them  stronger  inducements  to  return  to  it.  It 
is  like  the  case  I  referred  to  in  the  course  of  the  argument,  Chasemore 
V.  Richards,  2  H.  &  N.  168,  7  H.  L.  349,  which  shows  that  if  a  man 
has  the  misfortune  to  lose  his  spring  by  his  neighbor  digging  a  well, 
he  must  dig  his  own  well  deeper. 

Judgment  for  the  plaintiff. 


FISHER  V.  FEIGE 

SUFBBHE  CoxTBT,  Califobnia,  Jxtlt  14,  1902. 
Exported  in  137  California  Reports,  39. 

Appeal  by  defendants  from  a  judgment  in  favor  of  plaintiff. 

Plaintiff  is  a  lower  riparian  proprietor  on  a  certain  watercourse, 
and  defendants  are  upper  riparian  proprietors  thereon.  The  action 
was  brought  to  recover  damages  in  the  sum  of  five  thousand  dollars 
for  certain  alleged  interferences  by  defendants  with  the  flow  of  the 
water  in  the  stream,  and  for  a  perpetual  injimction  restraining  de- 
fendants from  their  repetition  of  the  alleged  wrong9.^ 

It  is  averred  that  along  and  adjacent  to  the  stream  as  it  flows 
through  defendants'  land  there  is  a  heavy  growth  of  timber,  which, 
before  the  alleged  wrongful  acts  of  defendants,  protected  the  waters  of 
the  stream  from  evaporation  by  drying  winds  and  the  rays  of  the  sun, 
and  that  the  defendants  have  cut  and  felled  a  large  number  of  trees, 
and  thus  let  in  the  sun  and  the  wind  and  caused  the  waters  to  be  dimin- 
ished by  evaporation,  so  that  not  as  much  flowed  down  on  to  plaintiff's 
land  as  formerly;  and  that  they  threatened  to  fell  more  of  said  trees  in 
the  future. 

It  is  also  averred,  and  foimd  by  the  court,  that  said  acts  were  done 
by  defendants  "  solely  for  the  pxirpose  of  injuring  the  plaintiff  and 
damaging  his  said  property,  and  out  of  spite  and  ill-will  towards  the 
plamtiff." 

The  court  found  that  plaintiff  was  damaged  in  the  sum  of  one  cent 
by  the  alleged  wrongs,  for  which  amount  judgment  was  rendered.  By 
the  judgment  the  defendants  were  also  "  perpetually  enjoined  "... 
"  from  cutting  or  felling  the  timbers  and  trees  growing  in  the  channel 
and  upon  the  immediate  banks  of  said  stream  at  any  point  above  the 
said  lands  of  the  plaintiff,  whereby  the  said  stream  will  be  exposed 
to  the  rays  of  the  sun  and  the  waters  thereof  lost  or  materially  dimin- 
ished by  evaporation." 

^  Statement  rewritten.  Only  so  much  ci  the  case  is  given  as  relates  to  a  sin^e 
point. 


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Defendants  appealed  from  the  judgment. 

McFarland,  J.    [After  discussing  the  question  of  motive.] 

.  .  .  Under  the  facts  found  we  cannot  see  how  the  lawfulness  of 
the  acts  enjoined  can  depend  upon  the  motives  by  which  they  were 
done,  or  may  be  done  in  the  future. 

It  is  foimd  that  the  defendants  did  fell  trees  on  their  lands,  and 
threatened  to  fell  more,  the  effect  of  which  was,  and  would  be,  to 
let  in  the  sun  and  winds,  and  thus  increase  evaporation. 

It  is  quite  apparent  that  cutting  trees  upon  one's  own  land  is  a  law- 
ful act,  which  cannot  be  restrained  because  it  "  lets  in  the  sim  "  and 
causes  more  evaporation;  any  incidental  damage  which  might  come 
to  a  lower  riparian  owner  from  such  lawful  act  would  clearly  be  dam- 
num absque  injuria. 

Judgment  reversed. 
Temple,  J.,  and  Henbhaw,  J.,  concurred. 


ALLEN  V.  FLOOD 

In  the  House  of  Lords,  December  14, 1897. 
Reported  in  [1S98]  Appeal  Cases,  1. 

The  plaintiffs  (now  the  respondents),  Flood  and  Taylor,  are  members  of 
the  Shipwrights'  Provident  Union.^  The  defendant  (now  the  appellant),  Al- 
len, is  a  member  and  the  London  delegate  of  the  Independent  Society  of 
Boilermakers  and  Iron  and  Steel  Shipbuilders.  The  latter  society  restricts  the 
labor  of  its  members  to  ironwork.  The  society  of  shipwrights  permits  its  mem- 
bers to  work  either  in  wood  or  iron.  The  members  of  the  boilermakers'  society 
are  accustomed  to  claim  that  the  proper  business  of  shipwrights  is  to  work  in 
wood  only,  and  that  shipwrights  who  work  in  iron  are  trespassing  on  the  trade 
of  the  boilermakers'  union.* 

In  April,  1894,  about  forty  men  of  the  boilermakers'  society  were  engaged 
at  the  Regent  Dock,  Millwall,  in  repairing  an  iron  ship,  on  the  employment  of 
the  Glengall  Iron  Company.  Flood  and  Taylor  were  at  the  same  time  em- 
ployed by  the  Glengall  Company  to  execute  repairs  upon  the  woodwork  of  the 
vessel.  By  the  terms  of  their  employment  they  were  entitled  to  leave  at  the 
close  of  any  day;  and  the  Glengall  Company  might,  at  the  close  of  any  day 
cease  to  employ  them  further.  The  ironworkers  were  employed  on  similar 
terms.' 

^  Statement  rewritten.  Arjguments  omitted.  Some  of  the  opinions  are  entirely 
omitted,  and  none  are  given  in  full. 

*  .  .  .  "  The  litigants  are  members  of  two  rival  associations  of  workingmen, 
registered  under  the  Trade  Unions  Act  of  1871."  .  .  .  Lord  Wateon,  [1898]  A.  C. 
p.  90.  "  It  is  not  a  dispute  between  employers  and  employed,  —  between  capital 
and  labor,  —  but  rather  one  between  the  members  of  one  trade  imion  and  of  an- 
other trade  imion."  .  .  .  Lord  Ashbourne,  ibid.  p.  109.  "  Each  party  had  the 
financial  support  of  their  union."    Lord  Macnaghten,  p.  147. 

»  As  to  the  terms  of  the  ironworkers*  employment,  see  Lord  Watson,  pp.  90, 99, 
and  Lord  Herschell,  p.  130. 


The  boilermakers,  on  discovering  that  Mood  and  Taylor  had  shortly  before 
been  employed  by  another  firm  (Mills  &  Knight)  on  the  Thames  in  doing  iron- 
work on  a  ship,  became  much  excited,  and  began  to  talk  of  leaving  their  em- 
ployment. One  of  them  telegraphed  for  Allen,  their  London  delegate.  Allen 
came,  dissuaded  them  from  leaving  work  at  dinner-time,  and  told  them  that 
they  must  wait  and  see  how  things  were  settled.  Allen  then  had  an  interview 
with  Halkett,  the  Glengall  Company's  manager.  As  to  what  took  place  at  this 
interview,  the  testimony  at  the  subsequent  trial  was  conflicting.  The  version 
most  favorable  to  the  plaintiffs  was  substantially  as  follows:  — 

Allen  told  Halkett  that  he  (Allen)  had  been  sent  for  because  Flood  and 
Taylor  were  known  to  have  done  ironwork  in  Mills  &  Knight's  yard,  and  that 
unless  Flood  and  Taylor  were  discharged  all  the  members  of  the  boilermakers' 
society  would  be  "  called  out "  or  "  Imock  off  "  work  that  day;  that  Halkett 
had  no  option;  that  there  was  no  ill-feeling  towards  the  Glengall  Company  or 
towards  Flood  and  Taylor  personally,*  but  that  the  iron-men  were  doing  their 
best  to  put  an  end  to  the  practice  of  shipwrights  doing  ironwork,  and  that 
wherever  these  men  were  employed,  or  other  shipwrights  who  had  done  iron- 
woric,  the  boilermakers  would  cease  work,  —  in  every  yard  on  the  Thames. 

If  the  boilermakers  had  been  called  out,  it  would  have  stopped  the  Glen- 
gall Company's  business.  For  fear  that  the  threat  would  be  carried  out, 
Halkett  discharged  Flood  and  Taylor  at  the  close  of  the  day. 

An  action  was  then  brou^t  by  Flood  and  Taylor  against  three  persons,  viz., 
Allen,  the  London  del^;ate;  Jackson,  the  chairman;  and  Kni^t,  the  general 
secretary  of  the  Boilermakers' Society.'  The  plaintiffs' allegations  were:  that 
the  defendants,  maliciously  and  wrongfully  and  with  intent  to  injure  l^e 
plaintiffs,  procured  and  induced  the  Glengall  Company  to  break  their  contract 
with  l^e  plaintiffs  and  not  to  enter  into  new  contracts  with  them;  and  also, 
maliciously,  etc.,  intimidated  and  coerced  the  Glengall  Company  to  break 
their  contract  with  plaintiffs  and  not  to  enter  into  new  contracts,  and  also  un« 
lawfully  and  maliciously  conspired  with  others  to  do  the  above  acts. 

The  case  was  tried  by  jury  before  Kennedy,  J. 

The  learned  judge  ruled  that  there  was  not ''  a  shred  of  evidence  of  any 
conspiracy  at  all;  "  that  there  was  "  no  evidence  of  an3rthing  amounting  to 
intimidation  or  coercion  in  any  legal  sense  of  the  term;"'  and  that  there  was 
no  breach  of  contract. 

The  following  questions,  among  others,  were  put  to  the  jury:  — 

1.  Did  the  defendant  Allen  maliciously  induce  the  GlengEdl  IronrCompany 
to  discharge  the  plaintiffs  or  either  of  them  from  their  employment  ? 

2.  Did  the  defendant  Allen  maliciously  induce  the  GlengaU  Iron  Company 
not  to  engage  the  plaintiffs  or  either  of  tiiem  ? 

In  putting  these  questions  to  the  jury,  Kennedy,  J.,  gave  some  explana- 
tions, portions  of  which  are,  in  substance,  as  follows:  *  "  The  word  'malice' 
is  a  word  of  art  in  law,  and  it  does  not  mean  in  this  case  a  personal  dislike,  a 
personal  feeling  of  resentment  against  the  two  plaintiffs.   It  is  clear  from  iSoQ 

1  See  Lord  Macna^ten,  p.  146. 

«  It  was  hddy  both  by  Kennedy,  J.,  and  by  the  Court  of  Appeal,  that  Jackson 
and  Knight  were  not  liable.  Upon  this  branch  of  the  case  there  was  no  appeal  to 
the  House  of  Lords. 

»  See  Lord  Macnaghten,  p.  148. 

^  The  statement  here  given  is  compiled  from  extracts  recited  in  the  opinions  of 
Lord  Shand,  p.  162,  Lord  Halsbury,  p.  82,  and  Lord  Macnaghten,  p.  149. 


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evidence  of  the  men  and  of  their  employers  that  there  was  no  such  personal 
feeling  in  this  case.  The  question  that  I  want  you  to  answer  is,  that,  if  you 
find  he  induced  the  GlengaJl  Iron  Company,  by  the  threat  which  is  suggested 
by  the  plaintiffs  of  calling  out  all  the  men  on  strike,  did  he  do  that  with  the 
malicious  intention  which  I  have  endeavored  to  explain,  that  is,  merely,  not 
for  the  purpose  of  forwarding  that  which  he  believed  to  be  his  interest  as  a 
delegate  of  his  union  in  the  fair  consideration  of  that  interest  but  for  Hie 
purpose  of  injuring  these  plaintiffs,  and  preventing  them  doing  that  which 
they  were  each  of  them  entitled  to  do.  *  Maliciously '  means,  connected  with 
the  word  *  induce,'  this,  —  that  it  was  not  for  the  mere  purpose  of  forwarding 
fairly  Allen's  own  interests,  but  from  the  indirect  motive  of  doing  a  mischief 
to  the  plaintiffs  in  their  lawful  business." 

The  jury  answered  both  questions  in  the  afiSrmative;  and  also  foimd  that 
each  plaintiff  had  suffered  201,  damages. 

After  consideration,  Kennedy,  J.,  entered  judgment  for  the  plaintiffs 
against  Allen  for  401,  This  decision  was  affirmed  by  the  Court  of  Appeal 
(LoBD  EsHER,  M.  R.,  Lopes  and  Riobt,  L.  JJ.);  L.  R.  (1895)  2  Q.  B.  21. 

Against  these  decisions,  Allen  brought  the  present  appeal  to  the  House  of 
Lords.  The  appeal  was  first  argued  in  December,  1895.  Their  Lordships 
having  required  further  argument,  the  appeal  was  reargued  in  March  and 
April,  1897.  The  following  Judges  were  sunmioned  to  attend  ^  at  the  second 
argument:  Hawkins,  Mathew,  Cave,  Nobth,  Wills,  Grantham,  Law- 
rence, and  Wright,  JJ. 

At  the  close  of  the  arguments,  the  following  question  was  propounded  to 
the  Judges:  Assuming  the  evidence  given  by  the  plaintiffs'  witnesses  to  be 
correct,  was  there  any  evidence  of  a  cause  of  action  fit  to  be  left  to  the  jury  7 

Mathew,  J.,  and  Wright,  J.,  answered  the  question  in  the  n^;ative;  and 
the  other  six  Judges  in  the  affirmative. 

After  the  delivery  of  the  opinions  of  the  Judges,  the  House  took  time  for 
consideration. 

Dec.  14,  1897.  Lord  Halsburt,  L.  C.  .  .  .  The  first  objection  made  to 
the  plaintiff's  right  to  recover  for  the  loss  which  they  thus  undoubtedly  suf- 
fered is  that  no  right  of  the  plaintiffs  was  infringed,  and  that  the  right  con- 
tended for  on  their  behalf  is  not  a  right  recognized  by  law,  or,  at  all  events, 
only  such  a  right  as  every  one  else  is  entitled  to  deprive  them  of  if  they  stop 
short  of  physical  violence  or  obstruction.  I  think  the  right  to  employ  their 
labor  as  they  will  is  a  right  both  recognized  by  the  law  and  sufficiently  guarded 
by  its  provisions  to  make  any  undue  interference  with  that  right  an  actionable 
wrong. 

Very  early  authorities  in  the  law  have  recognized  the  right;  and,  in  my 
view,  no  authority  can  be  foimd  which  questions  or  qualifies  it.  The  school- 
master who  complained  that  his  scholars  were  being  assaulted  and  brought  an 
action,  the  quarry  owner  who  complained  that  his  servants  were  being  men- 
aced and  molested,  were  both  held  to  have  a  right  of  action.  And  it  appears 
to  me  that  the  importance  of  those  cases,  and  the  principle  established  by 
them,  have  not  been  suflBciently  considered.  It  is  said  that  threats  of  violence 
or  actual  violence  were  unlawful  means:  the  lawfulness  of  the  means  I  will 
discuss  hereafter.    But  the  point  on  which  these  cases  are  important  is  the 

^  See  Veeder,  Advisory  Opinions  of  the  Judges  in  England,  13  Harv.  Law  Rev. 
358. 


i 


existence  of  the  right.  It  was  not  the  schoohnaster  who  was  assaulted;  it  was 
not  the  quarry  owner  who  was  assaulted  or  threatened;  but,  nevertheless,  the 
schoolmaster  was  held  entitled  to  bring  an  action  in  respect  of  l^e  loss  of 
scholars  attending  his  school,  and  the  quarry  owner  in  respect  of  the  loss  of 
workmen  to  his  quarry.  They  were  third  persons;  no  violence  or  threats  were 
applied  to  them,  and  the  cause  of  action,  which  they  had  a  right  to  insist  on, 
was  the  indirect  effect  upon  themselves  of  violence  and  threats  applied  to 
others. 

My  Lords,  in  my  view  these  are  binding  authorities  to  show  that  the  pre- 
liminary question,  namely,  whether  there  was  any  right  of  the  plaintiffs  to 
pursue  their  calling  unmolested,  must  be  answered  in  the  afiSrmative.  The 
question  of  what  is  the  right  invaded  would  seem  to  be  reasonably  answered, 
and  the  universality  of  the  right  to  all  Her  Majesty's  subjects  seems  to  me  to 
be  no  argument  against  its  existence.  It  is,  indeed,  part  .of  that  freedom  from 
restraint,  that  liberty  of  action,  which,  in  my  view,  may  be  found  running 
through  the  principles  of  our  law* 

•  •••••• 

First  it  is  said  that  the  company  were  acting  within  their  leg&l  rights  in 
discharging  the  plaintiffs.  So  they  were;  but  does  that  affect  the  question  of 
the  responsibility  of  the  person  who  caused  them  so  to  act  by  the  means  he 
used  ?  The  scholars  who  went  away  from  the  school  were  entitled  to  do  so. 
The  miners  were  entitled  to  cease  working  at  the  quarry.  The  natives  were 
entitled  to  avoid  running  l^e  risk  of  being  shot;  but  the  question  is,  What  was 
the  cause  of  their  thus  exercising  their  legal  right  ? 

The  question  must  be  whether  what  was  done  in  fact,  and  what  did  in  fact 
proems  the  dismiasal  of  the  plaintiff,  was  an  actionable  wrong  or  not.  I  have 
never  heard  that  a  man  who  was  dismissed  from  his  service  by  reason  of  some 
slander  could  not  maintain  an  action  against  the  slanderer  because  the  master 
had  a  legal  ri^t  to  dischaige  him. 

It  will  be  observed  that  Kennedy,  J.,  draws  a  distinction  between  the  con- 
duct which  he  assumes  to  be  lawful  on  Allen's  part  te  do  what  he  did  do  if  it 
were  merely  for  the  purpose  of  forwarding  that  which  he  believed  to  be  his 
interest  as  a  delegate  of  his  union  in  fair  consideration  of  that  interest  on  the 
one  hand,  and  on  the  other  hand  his  conduct  if  what  he  did  was  done  for  the 
purpose  of  injuring  these  plaintiffs. 

My  Lords,  it  appears  to  me  that  that  is  a  direction  of  which  the  defendants 
cannot  complain,  since  it  puts  what  is  to  my  mind  an  alternative  more  favor- 
able to  them.  In  my  view,  his  belief  that  what  he  was  doing  was  for  his 
interest  as  a  delegate  of  his  union  would  not  justify  the  doing  of  what  he  did 
do.  It  is  alleged,  and  to  my  mind  and  to  the  mind  of  the  jury  proved,  that 
the  employers  were  compelled  under  pressure  of  the  threats  that  he  used  to 
discharge  the  plaintiffs. 

But  the  objection  made  by  the  defendants  appears  to  be  that  the  word 
**  malicious  "  adds  nothing;  that  if  the  thing  was  lawful  it  was  lawful  abso- 
lutely; if  it  was  not  lawful  it  was  unlawful,  —  the  addition  of  the  word  "  ma- 
licious "  can  make  no  difference.  The  fallacy  appears  to  me  to  reside  in  the 
assumption  that  everything  must  be  absolutely  lawful  or  absolutely  unlaw- 
ful. There  are  many  things  which  may  become  lawful  or  unlawful  according 
to  circumstances. 


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In  a  decision  of  this  House  it  has  undoubtedly  been  held  that  whatever  a 
man's  motives  may  be,  he  may  dig  into  his  own  land  and  divert  subterranean 
water  which  but  for  his  so  treating  his  own  land  might  have  reached  his  neigh- 
bor's land.  But  that  is  because  the  neighbor  had  no  right  to  the  flow  of  the 
subterranean  water  in  that  direction,  and  he  had  an  absolute  right  to  do  what 
he  would  with  his  own  property.  But  what  analogy  has  such  a  case  with 
the  intentional  inflicting  of  injury  upon  another  person's  property,  reputation, 
or  lawful  occupation  ?  To  dig  into  one's  own  land  under  the  circumstances 
stated  requires  no  cause  or  excuse.  He  may  act  from  mere  caprice,  but  his 
right  on  his  own  land  is  absolute,  so  long  as  he  does  not  interfere  with  the 
rights  of  others. 

But,  referring  to  Bowen,  L.  J.'s  observation,  which  to  my  mind  is  exactly 
accurate,  "  in  order  to  justify  the  intentional  doing  of  that  which  is  calculated 
in  the  ordinary  course  of  events  to  damage,  and  which  does,  in  fact,  damage 
another  in  that  other  person's  property  or  trade,"  you  must  have  some  just 
cause  or  excuse. 

Now,  the  word  "  malicious  "  appears  to  me  to  n^;ative  just  cause  or  excuse; 
and  without  attempting  an  exhaustive  exposition  of  the  word  itself,  it  appears 
to  me  that,  if  I  apply  the  language  of  Bowen,  L.  J.,  it  is  enough  to  show  that 
this  was  within  tJie  meaning  of  the  law  **  malicious." 

It  appears  to  me  that  no  better  illustration  can  be  given  of  the  distinction 
on  which  I  am  insisting  between  an  act  which  can  be  legally  done  and  an  act 
which  cannot  be  so  done  because  tainted  with  malice,  than  such  a  colloquy 
between  the  representative  of  the  master  and  the  representative  of  the  men  as 
might  have  been  held  on  the  occasion  which  has  given  rise  to  this  action.  If 
the  representative  of  the  men  had  in  good  fail^  and  without  indirect  motive 
point^  out  the  inconvenience  that  might  result  from  having  two  sets  of  men 
working  together  on  the  same  ship,  whose  views  upon  the  particular  question 
were  so  diverse  that  it  would  be  inexpedient  to  bring  them  together,  no  one 
could  have  complained;  but  if  his  object  was  to  punish  the  men  belonging  to 
another  imion  because  on  some  former  occasion  they  had  worked  on  an  iron 
ship,  it  seems  to  me  that  the  difference  of  motive  may  make  l^e  whole  differ- 
ence between  the  lawfulness  or  unlawfulness  of  what  he  did. 

I  see  it  is  suggested  by  one  of  your  Lordships  that  the  action  for  malicious 
prosecution  is  supposed  to  be  an  exception.  I  am  not  quite  certain  that  I 
understand  what  is  the  proposition  to  which  it  is  an  exception.  If  it  means 
that  there  is  no  other  form  of  procediu^  known  to  the  law  wherein  malice  may 
make  the  distinction  between  a  lawful  and  an  unlawful  act,  I  am  unable  to 
agree.  Maliciously  procuring  a  person  to  be  made  a  bankrupt,  maliciously 
and  without  reasonable  or  probable  cause  presenting  a  petition  to  wind  up  a 
company,  or  maliciously  procuring  an  arrest,  are  equally  cases  wherein  the 
state  of  mind  of  the  person  procuring  the  arrest  may  affect  the  question  of  the 
lawfulness  or  unlawfulness  of  the  act  done. 

Again,  in  slander  or  libel  the  right  to  preserve  one's  character  or  business 
from  attack  appears  to  me  quite  as  vague  and  general  a  right  as  it  is  suggested 
is  the  right  to  pursue  one's  occupation  immolested;  and  it  cannot  be  denied 
that  in  both  these  cases  the  lawfulness  or  unlawfulness  of  what  is  said  or 
written  may  depend  upon  the  absence  or  presence  of  malice. 

Doubtless  there  are  cases  in  which  the  mere  presence  of  malice  in  an  act 
done  will  not  necessarily  give  a  right  of  action,  since  no  damage  may  result; 
and  in  this  case,  however  malicious  Allen's  intervention  may  have  been,  if  the 


employers  had  defied  Allen's  threats  instead  of  yielding  to  them,  the  plaintiffs 
could  not  have  succeeded  in  an  action,  because  they  would  not  have  been  in- 
jured: see  Quartz  Hill  Co.  v.  Eyre,  11  Q.  B.  D.  674;  Gibbs  v.  Pike,  9  M.  &  W. 
361;  Jenings  v.  Florence,  (1857)  2  C.  B.  (n.  s.)  467. 

LoBD  Watson.  .  .  .  There  is  no  expression  in  the  verdict  which  can  be 
held,  either  directly  or  by  implication,  to  impeach  the  legality  of  the  com- 
pany's conduct  in  discharging  the  respondents.  Themerefactofanemidoyer 
discharging  or  refusing  to  engage  a  workman  does  not  imply  or  even  suggest 
the  absence  of  his  legal  ri^t  to  do  either  as  he  may  choose.  It  is  true  that 
the  company  is  not  a  party  to  this  suit;  but  it  i3  also  obvious  that  the  char- 
acter of  the  act  induced,  whether  legal  or  illegal,  may  have  a  bearing  upon  the 
liability  in  law  of  the  person  who  procured  it.  The  whole  pith  of  the  verdict, 
in  so  far  as  it  directly  concerns  the  appellant,  is  contained  in  the  word ''  mali- 
ciously," —  a  word  which  is  susceptible  of  many  different  meanings.  The 
expression  "  maliciously  induce,"  as  it  occurs  upon  the  face  of  the  vi^ct,  is 
ambiguous:  it  is  capable  of  signifying  that  the  appellant  knowingly  induced 
an  act  which  of  itself  constituted  a  civil  wrong,  or  it  may  sim^dy  mean  that 
the  appellant  procured,  with  intent  to  injure  tiie  respondents,  an  act  which, 
apart  from  motive,  would  not  have  amounted  to  a  civil  wrong;  and  it  is,  in  my 
opinion,  material  to  ascertain  in  which  of  these  senses  it  was  used  by  the  jury. 

Althou^  the  rule  may  be  otherwise  with  regard  to  crimes,  the  law  of 
England  does  not,  according  to  my  apprehension,  take  into  account  motive  as 
constituting  an  element  of  civil  wrong.  Any  invasion  of  the  civil  ri^ts  of 
another  person  is  in  itself  a  legal  wrong,  carrying  with  it  liability  to  repair  its 
necessary  or  natural  consequences,  in  so  far  as  tiiese  are  injurious  to  tiie  per- 
son whose  right  is  infringed,  whether  the  motive  which  prompted  it  be  good, 
bad,  or  indifferent.  But  the  existence  of  a  bad  motive,  in  the  case  of  an  act 
which  is  not  in  itself  illegal,  will  not  convert  that  act  into  a  civil  wrong  for 
which  reparation  is  due.  A  wrongful  act,  done  knowingly  and  with  a  view  to 
its  injurious  consequences,  may,  in  the  sense  of  law,  be  malicious;  but  such 
malice  derives  its  essential  character  from  the  circumstance  that  the  act  done 
constitutes  a  violation  of  the  law.  There  is  a  class  of  cases  which  have  some- 
times been  referred  to  as  evidencing  that  a  bad  motive  may  be  an  element  in 
the  composition  of  civil  wrong;  but  in  these  cases  the  wrong  must  have  its 
root  in  an  act  which  the  law  generally  regards  as  illegal,  but  excuses  its  per- 
petration in  certain  exceptional  circumstances  from  considerations  of  public 
policy.  These  are  well  known  as  cases  of  privilege,  in  which  the  protection 
which  the  law  gives  to  an  individual  who  is  within  the  scope  of  these  consid- 
erations consists  in  this,  —  that  he  may  with  immimity  commit  an  act  which 
is  a  legal  wrong  and  but  for  his  privilege  would  afford  a  good  cause  of  action 
against  him,  all  that  is  required  in  order  to  raise  the  privilege  and  entitle  him 
to  protection  being  that  he  shall  act  honestly  in  the  discharge  of  some  duty 
which  the  law  recognizes,  and  shall  not  be  prompted  by  a  desire  to  injure  the 
person  who  is  affected  by  his  act.  Accordingly,  in  a  suit  brought  by  that  per- 
son, it  is  usual  for  him  to  allege  and  necessary  for  him  to  prove  an  iptent  to 
injure  in  order  to  destroy  the  privilege  of  the  defendant.  But  none  of  these 
cases  tend  to  establish  that  an  act  which  does  not  amoimt  to  a  legal  wrong, 
and  therefore  needs  no  protection,  can  have  privilege  attached  to  it;  and  still 
less  that  an  act  in  itself  lawful  is  converted  into  a  legal  wrong  if  it  was  done 
from  a  bad  motive. 


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[After  quoting  from  Bo  wen,  L.  J.,  in  Mogul  Steamship  Co.  v,  McGregor, 
and  Baylet,  J.,  in  Bromage  v.  Prosser.] 

The  root  of  the  principle  is  that,  in  any  legal  question,  malice  depends,  not 
upon  evil  motive  which  influenced  the  mind  of  the  actor,  but  upon  the  illegal 
character  of  the  act  which  he  contemplated  and  committed.  In  my  opinion  it 
is  alike  consistent  with  reason  and  common  sense  that  when  the  act  done  is, 
apart  from  the  feelings  which  prompted  it,  legal,  the  civil  law  ought  to  take  no 
cognizance  of  its  motive. 

It  does  not  appear  to  me  to  admit  of  doubt  that  the  jury,  in  finding  the 
action  of  the  company  to  have  been  maliciously  induced  by  the  appellant, 
simply  meant  to  affirm  that  the  appellant  was  influenced  by  a  bad  motive, 
namely,  an  intention  to  injure  the  respondents  in  their  trade  or  calling  of 
shipwrights. 

There  are,  in  my  opinion,  two  grounds  only  upon  which  a  person  who  pro- 
cures the  act  of  another  can  be  made  legally  responsible  for  its  consequences. 
In  the  first  place,  he  will  incur  liability  if  he  knowingly  and  for  his  own  ends 
induces  that  other  person  to  conomit  an  actionable  wrong.  In  the  second  place, 
when  the  act  induced  is  within  the  right  of  the  immediate  actor,  and  is  there- 
fore not  wrongful  in  so  far  as  he  is  concerned,  it  may  yet  be  to  the  detriment 
of  a  third  party;  and  in  that  case,  according  to  the  law  laid  down  by  the 
majority  in  Lumley  v.  Gye,  2  E.  <fe  B.  216,  the  inducer  may  be  held  liable  if  he 
can  be  shown  to  have  procured  his  object  by  the  use  of  illegal  means  directed 
against  that  third  party. 

Asssuming  that  the  Glengall  Iron  Company,  in  dispensing  with  the  further 
services  of  the  respondents,  were  guilty  of  no  wrong,  I  am  willing  to  take  it 
that  any  person  who  procured  their  act  might  incur  responsibility  to  those  who 
were  injuriously  affected  by  it,  if  he  employed  unlawful  means  of  inducement 
directed  against  them.  According  to  the  decision  of  the  majority  in  Lumley 
V.  Gye,  2  E.  &  B.  216,  already  referred  to,  a  person  who  by  illegal  means,  that 
is,  means  which  in  themselves  are  in  the  nature  of  civil  wrongs,  procures 
the  la^'ful  act  of  another,  which  act  is  calculated  to  injure,  and  does  injure, 
a  third  party,  commits  a  wrong  for  which  he  may  be  made  answerable.  So 
long  as  the  word  "  means  "  is  understood  in  its  natural  and  proper  sense,  that 
rule  appears  to  me  to  be  intelligible;  but  I  am  altogether  unable  to  appreciate 
the  loose  logic  which  confounds  internal  feeling  with  outward  acts,  and  treats 
the  motive  of  the  actor  as  one  of  the  means  employed  by  him. 

It  has  been  maintained,  and  some  of  the  learned  judges  who  lent  their 
assistance  to  the  House  have  favored  the  argument,  that  the  appeOant  used 
coercion  as  a  means  of  compelling  the  Glengall  Iron  Company  to  terminate 
their  connection  with  the  respondents;  but  that  conclusion  does  not  appear  to 
me  to  be  the  fair  result  of  the  evidence.  If  coercion,  in  the  only  legal  sense 
of  the  term,  was  employed,  it  was  a  wrong  done  as  much  to  the  Glengall  Iron 
Company,  who  are  the  parties  said  to  have  been  coerced,  as  to  the  respond- 
ents. Its  result  might  be  prejudicial  to  the  respondents,  but  its  efficacy  wholly 
depended  upon  its  being  directed  against  and  operating  upon  the  company. 
It  must  be  kept  in  view  that  the  question  of  what  amounts  to  wrongful  coer- 
cion in  a  legal  sense  involves  the  same  considerations  which  I  have  discussed 
in  relation  to  the  elements  of  a  civil  wrong  as  committed  by  the  immediate 
actor.    According  to  my  opinion,  coercion,  whatever  be  its  nature,  must,  in 


order  to  infer  the  legal  liability  of  the  person  who  employs  it,  be  intrinsically 
and  irrespectively  of  its  motive  a  wrongful  act.  According  to  the  doctrine 
ventilated  in  Temperton  v,  Russell,  [1893]  1  Q.  B.  715,  and  the  present  case  it 
need  not  amount  to  a  wrong,  but  will  become  wrongful  if  it  was  prompted  by 
a  bad  motive. 

I  have  abeady  indicated  that,  in  my  opinion,  no  light  is  thrown  upon  the 
decision  of  the  present  question  by  Pitt  v.  Donovan,  1  M.  &  S.  639,  and  other 
cases  of  that  class.  The  defendant  had  in  that  case  represented,  contrary  to 
the  fact,  that  the  plaintiff  was  insane  at  the  time  when  he  executed  a  particu- 
lar deed.  The  conununication  was  made  to  a  person  to  whom  the  defendant 
was  under  a  legal  duty  to  make  the  disclosure  if  it  had  been  true;  and  the 
defendant  was  in  law  absolved  from  the  ordinary  consequences  of  his  having 
circulated  a  libel  which  was  false  and  injurious,  if  he  honestly  believed  it  to 
be  true.  The  law  applicable  in  cases  of  that  description  is,  I  apprehend,  be- 
yond all  doubt;  but  the  rule  by  which  the  law  in  certain  exceptional  cases 
excuses  the  perpetration  of  a  wrong,  by  reason  of  the  absence  of  evil  motive,  is 
insufficient  to  establish  or  to  support  the  converse  and  very  different  proposi- 
tion, that  the  presence  of  an  evil  motive  will  convert  a  l^gal  act  into  a  legal 
wrong. 

[The  opinions  of  Lobd  Ashboubne,  and  Lobd  Morris,  concuning  with 
Lord  Halsbury,  are  omitted.l 
Lord  Herschell. 

Great  stress  was  laid  at  the  bar  on  Hie  circumstance  that  in  an  action  for 
maliciously  and  without  reasonable  and  probable  cause  putting  in  motion  legal 
process  an  evil  motive  is  an  essential  ingredient.  I  have  always  understood 
and  I  think  that  hajs  been  the  general  understanding,  that  this  was  an  ex- 
ceptional case.  The  person  against  whom  proceedings  have  been  initiated 
without  reasonable  and  probable  cause  is  prima  facie  wronged.  It  might 
well  have  been  held  that  an  action  always  lay  for  thus  putting  the  law  in 
motion.  But  I  apprehend  that  the  person  taking  proceedings  was  saved 
from  liability  if  he  acted  in  good  faith  because  it  was  thought  that  men 
might  otherwise  be  too  much  deterred  from  enforcing  the  law,  and  that 
this  would  be  disadvantageous  to  the  public.  Some  of  the  learned  judges 
cite  actions  of  libel  and  slander  as  instances  in  which  the  legal  liability  de- 
pends on  the  presence  or  absence  of  malice.  I  think  this  is  a  mistake.  The 
man  who  defames  another  by  false  allegations  is  Uable  to  an  action,  however 
good  his  motive,  and  however  honestly  he  believed  in  the  statement  he  made. 
It  is  true  that  in  a  limited  class  of  cases  the  law,  under  certain  circumstances, 
regards  the  occasion  as  privileged,  and  exonerates  the  person  who  hajs  made 
false  defamatory  statements  from  liability  if  he  has  made  them  in  good  faith. 
But  if  there  be  not  that  duty  or  interest  which  in  law  creates  the  privilege, 
then,  though  the  person  maJdng  the  statements  may  have  acted  from  the 
best  of  motives,  and  felt  it  his  duty  to  make  them,  he  is  none  the  less  liable. 
The  gist  of  the  action  is  that  the  statement  was  false  and  defamatory.  Be- 
cause in  a  strictly  limited  class  of  cases  the  law  allows  the  defence  that  the 
statements  were  made  in  good  faith,  it  seems  to  me,  with  all  deference,  illogi- 
cal to  affirm  that  malice  constitutes  one  of  the  elements  of  the  torts  known  to 
the  law  as  libel  and  slander.    But  even  if  it  could  be  established  that  in  cases 


falling  within  certain  well-defined  categories,  it  is  settled  law  that  an  evil 
motive  renders  actionable  acts  otherwise  innocent,  that  is  surely  far  from 
showing  that  such  a  motive  always  makes  actionable  acts  prejudicial  to  an- 
other which  are  otherwise  lawful,  or  that  it  does  so  in  cases  like  the  present 
utterly  diRsimilar  from  those  within  the  categories  referred  to. 

If  the  fact  be  that  malice  is  the  gist  of  the  action  for  inducing  or  procuring 
an  act  to  be  done  to  the  prejudice  of  another,  and  not  that  the  act  induced 
or  procured  is  an  unlawful  one  as  being  a  breach  of  contract  or  otherwise,  I 
can  see  no  possible  ground  for  confining  the  action  to  cases  in  which  the  thing 
induced  is  the  not  entering  into  a  contract.  It  seems  to  me  that  it  must 
equally  lie  in  the  case  of  every  lai^ul  act  which  one  man  induces  another  to 
do  where  his  purpose  is  to  injure  his  neighbor  or  to  benefit  himself  at  his  ex- 
pense. I  cannot  hold  that  such  a  proposition  is  tenable  in  principle,  and  no 
authority  is  to  be  found  for  it.  I  should  be  the  last  to  sug^st  that  the  fact 
that  there  was  no  precedent  was  in  all  cases  conclusive  against  the  right  to 
maintain  an  action.  It  is  the  function  of  the  Courts  to  apply  established  l^al 
principles  to  the  changing  circumstances  and  conditions  of  human  life.  But 
the  motive  of  injuring  one's  neighbor  or  of  benefiting  one's  self  at  his  expense 
is  as  old  as  human  nature.  It  must  for  centuries  have  moved  men  in  countless 
instances  to  persuade  others  to  do  or  to  refrain  from  doing  particular  acts. 
The  fact  that  under  such  circmnstances  no  authority  for  an  action  foimded  on 
these  elements  has  been  discovered  does  go  far  to  show  that  such  an  action 
cannot  be  maintained. 

I  now  proceed  to  consider  on  principle  the  proposition  advanced  by  the  re- 
spondents, the  alleged  authorities  for  which  I  have  been  discussing.  I  do  not 
doubt  that  every  one  has  a  right  to  pursue  his  trade  or  emplo3anent  without 
"  molestation  "  or  "  obstruction,"  if  those  terms  are  used  to  imply  some  act  in 
itself  wrongful.  This  is  only  a  branch  of  a  much  wider  proposition,  namely, 
that  every  one  has  a  right  to  do  any  lawful  act  he  pleases  wiUiout  molestation 
or  obstruction.  If  it  be  intended  to  assert  that  an  act  not  otherwise  wrongful 
always  becomes  so  if  it  interferes  with  another's  trade  or  employment,  and 
needs  to  be  excused  or  justified,  I  say  that  such  a  proposition  in  my  opinion 
has  no  solid  foundation  in  reason  to  rest  upon.  A  man's  right  not  to  work  or 
not  to  pursue  a  particular  trade  or  calling,  or  to  determine  when  or  where  or 
with  whom  he  will  work,  is  in  law  a  right  of  precisely  the  same  nature,  and 
entitled  to  just  the  same  protection  as  a  man's  right  to  trade  or  work.  They 
are  but  examples  of  that  wider  right  of  which  I  have  already  spoken.  That 
wider  right  embraces  also  the  right  of  free  speech.  A  man  has  a  right  to  say 
what  he  pleases,  to  induce,  to  advise,  to  exhort,  to  command,  provided  he  does 
not  slander  or  deceive  or  commit  any  other  of  the  wrongs  known  to  the  law  of 
which  speech  may  be  the  medium.  Unless  he  is  thus  shown  to  have  abused  his 
right,  why  is  he  to  be  called  upon  to  excuse  or  justify  himself  because  his 
words  may  interfere  with  some  one  else  in  his  calling  ? 

[After  stating  the  case  of  Mogul  Steamship  Co.  v.  McGregor.] 
It  was  said  that  this  was  held  lawful  because  the  law  sanctions  acts  which 
are  done  in  furtherance  of  trade  competition.    I  do  not  think  the  decision 
rests  on  so  narrow  a  basis,  but  rather  on  this,  that  the  acts  by  which  the  com- 
petition was  pursued  were  all  lawful  acts,  that  they  were  acts  not  in  themselves 


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wrongful,  but  a  mere  exercise  of  the  ri^t  to  contract  with  whom,  and  when, 
and  under  what  circumstances  and  upon  what  conditions  they  pleased.  I  am 
aware  of  no  ground  for  saying  that  competition  is  regarded  with  special  favor 
by  the  law;  at  all  events,  I  see  no  reason  why  it  should  be  so  regarded.  It  may 
often  press  as  hardly  on  individuals  as  the  defendant's  acts  are  alleged  to  have 
done  in  the  present  case.  But  if  the  alleged  exception  could  be  established, 
why  is  not  the  present  case  within  it  ?  What  was  the  object  of  the  defendant, 
and  the  workmen  he  represented,  but  to  assist  themselves  in  their  competition 
with  the  shipwrights  ?  A  man  is  entitled  to  take  steps  to  compete  to  the  best 
advantage  in  the  emplo3anent  of  his  labor,  and  to  shut  out,  if  he  can,  what  he 
regards  as  unfair  competition,  just  as  much  as  if  he  was  carrying  on  the  busi« 
ness  of  a  shipowner.  The  inducement  the  appellant  used  to  further  his  end 
wcus  the  pro^)ect  that  the  members  of  his  union  would  not  work  in  company 
with  what  they  deemed  unfair  rivals  in  their  calling.  What  is  the  difference 
between  this  case  and  that  of  a  union  of  shipowners  who  induce  merchants  not 
to  enter  into  contracts  with  the  plaintiffs,  by  the  prospect  that  if  at  any  time 
they  employ  the  plaintiffs'  ships  they  will  suffer  the  penalty  of  bemg  naade  to 
pay  higher  charges  than  their  neighbors  at  the  time  ^en  the  defendants' 
ships  alone  visit  the  ports?  In  my  opinion  there  is  no  difference  in  principle 
between  the  two  cases. 

Lord  Macnaohten.  My  Lords,  I  am  sorry  to  say  that  I  must  b^^  by 
recapitulating  the  facts  of  the  case.  For  the  findings  of  the  jury,  taken  by 
themselves,  do  not  convey  to  my  mind  any  definite  meaning.  The  jury  have 
found  that  the  appellant  Allen  "  maliciously  induced  "  the  Glengall  Iron  Com- 
pany to  discharge  the  respondents  from  their  service,  and  they  have  awarded 
damages  in  consequence.  I  do  not  know  what  the  jury  meant  by  the  word 
"  induced; "  I  am  not  sure  that  I  know  what  they  meant  by  the  word  "  mali* 
ciously."  Sometimes,  indeed,  I  rather  doubt  whether  I  quite  imderstand  that 
unhappy  expression  myself.  I  am  therefore  compelled  to  turn  for  help  to 
the  evidence  at  the  trial,  accepting,  as  I  suppose  the  jury  must  have  accepted, 
the  account  given  by  tiie  respondents  in  preference  to  that  offered  by  the 
appellant  wherever  there  may  be  any  shadow  of  difference  between  them. 

(After  a  full  statement  of  the  evidence.] 

Now  before  I  proceed  to  consider  the  legal  grounds  on  which  Kennedy,  J., 
and  the  Court  of  Appeal  decided  the  case  against  Allen,  I  should  like  to  ask 
what  there  was  wrong  in  Allen's  conduct.  He  had  nothing  to  do  with  the 
origin  of  the  ill-feehng  against  Flood  and  Taylor.  He  did  nothing  to  increase 
it.  He  went  to  the  dock  simply  because  he  was  sent  for  by  one  of  the  men  of 
his  union.  It  seems  to  be  considered  the  duty  of  a  district  delegate  to  listen 
to  the  grievances  of  the  members  of  his  union  within  his  district,  and  to  settle 
the  difficulty  if  possible.  The  jury  foimd  that  the  settlement  of  this  dispute 
was  a  matter  within  Allen's  discretion.  The  only  way  in  which  he  could  settle 
it  was  by  going  and  seeing  the  manager.  There  was  surely  nothing  wrong 
in  that.  There  was  nothing  wrong  in  his  telling  the  manager  that  the  iron- 
men  would  leave  their  work  unless  the  two  shipwrights  against  whom  they 
had  a  grudge  were  dismissed,  if  he  really  believed  that  that  was  what  his 
men  intended  to  do.  As  far  ajs  their  employers  were  concerned,  the  iron-men 
were  perfectly  free  to  leave  their  work  for  any  reason,  or  for  no  reason,  or 
even  for  a  bad  reason;  any  one  of  them  might  have  gone  singly  to  the  man- 
ager, or  they  might  have  gone  to  him  all  together  (if  they  went  quietly  and 


peaceably),  and  told  him  that  th^r  would  not  stay  any  longer  with  Flood  and 
Taylor  at  work  among  them. 

If  so,  it  is  difficult  to  see  why  fault  should  be  found  with  Allen  for  going  in 
their  place  and  on  their  behalf  and  saying  what  they  would  have  said  them- 
selves. 

As  regards  the  meaning  of  the  word  "  induce/'  I  do  not  think  the  jury  got 
muqh  assistance.  I  rather  gather  from  the  smnming-up  that  the  jury  were 
given  to  understand  that  if  they  thought  that  Allen  merely  represented  the 
state  of  things  as  it  was  —  and  the  feding  of  the  iron-men  at  the  Event's 
Dock  —  they  would  be  at  liberty  to  answer  the  questions  put  to  them  about 
Allen  in  the  negative.  But  the  answer  must  be  the  other  way  if  they  thought 
that  Allen  went  further,  and  assumed  to  represent  the  union,  and  to  speak  as 
if  he  had  the  power  of  the  union  at  his  back;  that  would  be  a  threat  and 
would  amoimt  to  "  inducing.''  Now,  I  must  say  that  I  do  not  think  it  can  be 
said  that  Allen  did  ''  induce  "  the  company  to  discharge  the  plaintiffs.  Cer- 
tainly it  cannot  be  truly  said  that  he  procured  them  to  be  discharged.  It  was 
not  his  act  that  prevented  the  company  from  continuing  to  employ  them.  If 
the  whole  story  had  been  a  fiction  and  an  invention  on  his  part  I  could  have 
understood  the  finding  of  the  jury.  But  I  do  not  think  there  was  any  mis- 
representation on  Allen's  part.  I  do  not  think  there  was  any  exaggeration. 
Nor,  indeed,  was  any  such  point  made  at  the  triaL 

•  •••••••• 

So  we  see  now,  I  think,  what  the  findings  of  the  jury  come  to,  if  th^  are  to 
be  treated  as  being  in  accordance  with  the  evidence.  They  must  mean  that 
Allen  induced  the  company  to  discharge  the  plaintiffs,  by  representing  to  the 
manager,  not  otherwise  than  in  accordance  with  the  truth,  the  state  of  feeling 
in  the  yard,  and  the  intentions  of  the  workmen,  and  that  he  did  so  "  mali- 
ciously," because  he  must  have  known  what  the  issue  of  his  communication  to 
the  manager  would  be,  and  naturally  perhaps  he  was  not  sorry  to  see  an 
example  made  of  persons  obnoxious  to  his  union.  But  is  his  conduct  action- 
able ?  It  would  be  very  singular  if  it  were.  No  action  would  lie  against  the 
company  for  discharging  the  two  shipwrights.  No  action  would  lie  against  the 
iron-men  for  striking  against  them.  No  action  would  lie  against  the  officers  of 
the  union  for  sanctioning  such  a  strike.  But  if  the  respondents  are  right  the 
person  to  answer  in  damages  is  the  man  who  happened  to  be  the  medium  of 
communication  between  the  iron-men  and  the  company,  —  the  most  innocent 
of  the  three  parties  concerned,  for  he  neither  set  the  "  agitation  "  on  foot,  nor 
did  he  do  anything  to  increase  it,  nor  was  his  the  order  that  put  an  end  to  the 
connection  between  employer  and  employed.  It  seems  to  me  that  the  result 
would  have  been  just  the  same  if  Edmonds  had  told  Mr.  Halkett  what  was 
going  on  in  the  3rajtl,  or  if  Mr.  Halkett  had  learned  it  from  flood  and  Taylor 
themselves. 

Even  if  I  am  wrong  in  my  view  of  the  evidence  and  the  verdict,  if  the  ver- 
dict aiinjuiU«  tu  a  finding  that  Allen's  cohJuuL  wtu-b  malicious  m  eveiy  aciise  of 
the  word,  and  that  he  procured  the  dismissal  of  Flood  and  Taylor,  that  is,  that 
it  was  hLs  act  and  conduct  alone  which  caused  their  dismissal,  and  if  such  a 
verdict  were  warranted  by  the  evidence,  I  should  still  be  of  opinion  that  judg- 
ment was  wrongly  entered  for  the  respondents.  I  do  not  think  that  there  is 
any  foundation  in  good  sense  or  in  authority  for  the  proposition  that  a  person 
who  suffers  loss  by  reason  of  another  doing  or  not  doing  some  act  which  that 


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other  is  entitled  to  do  or  to  abstam  from  doing  at  his  own  will  and  pleasure, 
whatever  his  real  motive  may  be,  has  a  remedy  against  a  third  person  who,  by 
persuasion  or  some  other  means  not  in  itself  unlawful,  has  brought  about  the 
act  or  omission  from  which  the  loss  comes,  even  though  it  could  be  proved  that 
such  person  was  actuated  by  malice  towards  the  plaintiff,  and  that  his  con- 
duct, if  it  could  be  inquired  into,  was  without  justification  or  excuse. 

The  case  may  be  different  where  the  act  itself  to  which  the  loss  is  traceable 
involves  some  breach  of  contract  or  some  breach  of  duty,  and  amounts  to  an 
interference  with  l^al  rights.  There  the  immediate  agent  is  liable,  and  it 
may  well  be  that  the  person  in  the  background  who  pulls  the  strings  is  liable 
too,  though  it  is  not  necessary  in  the  present  case  to  express  any  opinion  on 
that  point. 

But  if  the  immediate  agent  cannot  be  made  liable,  though  he  knows  what 
he  is  about,  and  what  the  consequences  of  his  action  will  be,  it  is  difficult  to 
see  on  what  principle  a  person  1^  directly  connected  with  the  affair  can  be 
made  responsible  unless  malice  has  the  effect  of  converting  an  act  not  in  itself 
illegal  or  improper  into  an  actionable  wrong.  But  if  that  is  the  effect  of  mal- 
ice, why  is  the  immediate  agent  to  escape  7  Above  all,  why  is  he  to  escape 
when  tiiere  is  no  one  else  to  blame  and  no  one  else  answerable  7  And  yet 
many  cases  may  be  put  of  harm  done  out  of  malice  without  any  remedy  b^g 
available  at  law.  Suppose  a  man  takes  a  transfer  of  a  debt  with  which  he  has 
no  concern  for  the  purpose  of  ruining  the  debtor,  and  then  makes  him  bank- 
rupt out  of  spite,  and  so  intentionally  causes  him  to  lose  some  benefit  under  a 
will  or  settlement,  —  suppose  a  man  declines  to  give  a  servant  a  character  be- 
cause he  is  offended  with  the  servant  for  leaving,  —  suppose  a  person  of  posi- 
tion takes  away  his  custom  from  a  country  tradesman  in  a  small  village  merely 
to  injure  him  on  account  of  some  fancied  grievance  not  connected  with  their 
dealings  in  the  way  of  buying  and  selling,  —  no  one,  I  think,  would  suggest 
that  there  could  be  any  remedy  at  law  in  any  of  those  cases.  But  suppose  a 
customer,  not  content  with  taking  away  his  own  custom,  says  something  not 
slanderous  or  otherwise  actionable  or  even  improper  in  itself,  to  induce  a  friend 
of  his  not  to  employ  the  tradesman  any  more.  Neither  the  one  nor  the  other 
is  liable  for  taking  away  his  own  custom.  Is  it  possible  that  the  one  can  be 
made  liable  for  inducing  the  other  jiot  to  employ  the  person  against  whom  he 
has  a  grudge  ?  If  so,  a  fashionable  dressmaker  might  now  and  then,  I  fancy, 
be  plaintiff  in  a  very  interesting  suit.  The  truth  is,  that  questions  of  this  sort 
belong  to  the  province  of  morals  rather  than  to  the  province  of  law.  Against 
spite  and  malice  the  best  safeguards  are  to  be  found  in  self-interest  and  pub- 
lic opinion.  Much  more  harm  than  good  would  be  done  by  encouraging  or 
permitting  inquiries  into  motives  when  the  immediate  act  alleged  to  have 
caused  the  loss  for  which  redress  is  sought  is  in  itself  innocent  or  neutral  in 
character,  and  one  which  anybody  may  do  or  leave  undone  without  fear  of 
legal  consequences.  Such  an  inquisition  would,  I  think,  be  intolerable,  to  say 
nothing  of  the  probability  of  injustice  being  done  by  juries  in  a  class  of  cases 
in  which  there  would  be  ample  room  for  speculation  and  wide  scope  for 
prejudice. 

In  order  to  prevent  any  possible  misconstruction  of  the  language  I  have 
used,  I  should  like  to  add  that  in  my  opinion  the  decision  of  this  case  can  have 
no  bearing  on  any  case  which  involves  the  element  of  oppressive  combination. 
The  vice  of  that  form  of  terrorism  commonly  known  by  the  name  of  "boy- 
cotting," and  other  forms  of  oppressive  combination,  seems  to  me  to  depend 


^XAil  JJ  JX1 


on  considerations  which  are,  I  think,  in  the  present  case,  conspicuously 
absent. 

Lord  Shand.  .  ,  .  The  ease  was  one  of  competition  in  labor,  which,  in 
my  opinion,  is  in  all  essentials  analogous  to  competition  in  trade,  and  to  which 
the  same  principles  must  apply;  and  I  ask  myself  what  would  be  the  thought 
of  the  application  of  the  word  "  malicious  "  to  the  conduct  of  a  tradesman  who 
induces  the  customer  of  another  tradesman  to  cease  making  purchases  from 
one  with  whom  he  had  long  dealt,  and  instead  to  deal  with  him,  a  rival  in 
trade.  The  case  before  the  jury  was,  in  my  view,  in  no  way  different,  except 
that  in  the  one  case  there  was  competition  in  labor,  —  in  the  other  there  would 
be  competition  in  trade. 

Some  of  the  learned  consulted  judges  speak  of  Allen's  conduct  as  having 
been  caused  by  a  desire  to  inflict  "  punishment  "  on  the  shipwrights  for  past 
acts,  and  indicate  that,  if  the  shipwrights  had  been  actually  working  at  iron- 
work on  the  vessel  at  the  time,  the  case  would  have  been  different.^ 

I  cannot  agree  in  any  such  view.  "  Punishment  "  in  a  vnde  and  popular 
sense  may  possibly  be  used,  though  incorrectly,  to  describe  the  boilermakers' 
action;  but  it  is  quite  clear  that  what  they  were  resolved  to  do,  and  really  did, 
was,  while  marking  their  sense  of  the  injury  which  they  thought  (rightly  or 
wrongly  is  not  the  question)  the  shipwrights  were  doing  to  them  in  trenching 
on  their  proper  lines  of  business,  to  take  a  practical  measure  in  their  own  de- 
fence. Their  object  was  to  benefit  themselves  in  their  own  business  as  working 
boilermakers,  and  to  prevent  a  recurrence  in  the  future  of  what  they  con- 
sidered an  improper  invasion  on  their  special  department  of  work.  How  this 
could  possibly  be  regarded  as  "  malicious,"  even  in  any  secondary  sense  that 
can  reasonably  be  attributed  to  that  term,  I  cannot  see. 

Coming  now  directly  to  the  merits  of  the  question  in  controversy  in  the 
case,  the  argument  of  the  plaintiffs  and  the  reasons  for  the  opinions  of  the  ma- 
jority of  the  consulted  judges  seem  to  me  to  fail,  because,  although  it  is  no 
doubt  true  that  the  plaintiffs  were  entitled  to  pursue  their  trade  as  workmen 
"  without  hindrance,"  their  right  to  do  so  was  qualified  by  an  equal  right,  and 
indeed  the  same  right,  on  the  part  of  other  workmen.  The  hindrance  must 
not  be  of  an  unlawful  character.  It  must  not  be  by  unlawful  action.  Amongst 
the  rights  of  ail  workmen  is  the  right  of  competition.  In  the  like  manner  and 
to  the  same  extent  as  a  workman  has  a  right  to  pursue  his  work  or  labor  with- 
out hindrance,  a  trader  has  a  right  to  trade  without  hindrance.    That  right  is 

1  .  .  .  "  There  is  no  ground  for  even  a  suggestion  that  the  defendant's  acts  were 
due  to  competition  in  trade  or  employment.  There  could  be  no  competition  be- 
tween the  two  sets  of  men  in  the  circumstances  under  which  they  were  then  work- 
ing, the  one  at  wood,  the  other  at  iron  only;  and  even  if  they  were  competing,  the 
plaintiffs  were  working  well  within  their  right."  Hawkins,  J.,  p.  23.  "Now, 
although  according  to  the  principles  of  the  Mogul  Case  the  action  of  Allen  might 
have  been  justified  on  the  principles  of  trade  competition,  if  it  had  been  confined 
to  the  time  when  the  respondents  were  doing  ironwork,  and  were  therefore  acting 
in  competition  with  the  boilermakers,  it  appears  to  me  that  as  soon  as  he  over- 
stepped those  limits,  and  induced  their  employers  to  dismiss  them  by  way  of 
punishment,  his  action  was  without  just  cause  or  excuse,  and,  consequently,  mali- 
cious within  the  legal  meaning  of  that  word."  Cave,  J.,  p.  37.  "  This  action  was 
not  an  effort,  by  competition,  to  enable  the  boilermakers  to  get  the  work  instead, 
but  to  punish  the  plaintiffs  by  causing  the  employment  of  other  shipwrights  in 
their  room."    Lord  Ashbourne,  p.  111. 


952  QUINN  V.  LBATHEM  [CHAP.  VIII. 

subject  to  the  right  of  others  to  trade  also,  and  to  subject  him  to  competition, 
—  competition  which  is  in  itself  lawful,  and  which  cannot  be  complained  of 
where  no  unlawful  means  (in  the  sense  I  have  ah'eady  explained)  have  been 
employed.  The  matter  has  been  settled  in  so  far  cus  competition  in  trade  is 
concerned  by  the  judgment  of  this  House  in  the  Mogul  Steamship  Co.  Case, 
[1892]  A.  C.  25.  I  can  see  no  reason  for  saying  that  a  different  principle 
should  apply  to  competition  in  labor.  In  the  course  of  such  competition,  and 
with  a  view  to  secure  an  advantage  to  himself,  I  can  find  no  reason  for  saying 
that  a  workman  is  not  within  his  legal  rights  in  resolving  that  he  will  decline 
to  work  in  the  same  emplo3anent  witii  certain  other  persons,  and  in  intimating 
that  resolution  to  his  employers. 

[The  opinions  of  Lord  Davet  and  Lobd  Jambs  of  Hbbefobd,  in  favor  of 
reversing  the  order  of  the  Court  of  Appeal  are  omitted.] 

Order  of  the  Cotirt  of  Appeal  reversed  and  judgment  entered  for  the 
appeilarU  with  costs  here  and  bdow  including  the  costs  of  the  trial; 
cause  remiUed  to  the  Queen*  s  Bench  Division^ 


LEATHEM  v.  CRAIG 

Qusbn's  Bench  Division,  Ireland,  Novebiber  22, 1898. 

Court  of  Appeal,  Ireland,  Mat  2, 1899. 

Reported  in  [1899]  2  Irish  Reports,  667,  744. 


QUINN  V.  LEATHEM 
In  the  House  of  Lords,  August  5, 1901. 
Reported  in  [1901]  Appeal  Cases,  495.* 

Tms  was  an  action  tried  before  FitzGibbon,  L.  J.,  at  the  Belfast 
Summer  Assizes,  1896,  brought  against  the  defendants  for  damages 
for  maliciously  and  wrongfully  procuring  certain  persons  to  break 
contracts  into  which  they  had  entered  with  the  plaintiff,  and  not  to 
enter  into  other  contracts  with  the  plaintiff;  and  for  maUciously  and 
wrongfully  enticing  and  procuring  certain  workmen  in  the  employ- 
ment of  such  persons  to  leave  the  service  of  their  employers  and  to 
break  their  contracts  of  service,  with  intent  to  injure  the  plaintiff, 

1  German  Civil  Code,  §§  226,  826. 

226.  The  exercise  of  a  right  is  not  permitted,  when  its  sole  object  is  to  injure 
another. 

826.  Whoever  intentionally  inflicts  damage  upon  another  in  a  morally  repre- 
hensible manner  is  bound  to  compensate  the  other  for  the  damage. 

See  also  Digest,  xxxix,  3,  1,  §  12,  xxxix,  3,  2,  §  9:  l.  17,  56;  Domat,  Civil  Law 
(Cushing's  ed.)  §  158;  Erskine,  Institutes  of  the  Law  of  Scotland,  Bk.  II,  tit.  1, 
§  2;  Bell,  Principles  of  the  Law  of  Scotland.  §  966;  Planiol,  Traits  E16mentaire 
de  droit  civil,  (4  ed.),  II,  §§  870-72:  Windscheid,  Lehrbuch  des  Pandektenrechts, 
I,  §  121 ;  Ames.  How  Far  an  Act  May  Be  a  Tort  Because  of  the  Wrongful  Motive 
of  the  Actor,  18  Harvard  Law  Rev.  411 ;  Walton,  Motive  as  an  Element  in  Torts 
in  the  Common  and  in  the  Civil  Law,  22  Harvard  Law  Rev.  349. 

*  Some  opinions  are  omitted.    None  are  given  in  fuU.    Arguments  omitted. 


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CHAP.  Vni.]  QUINN  V.  LBATHEM  953 

and  to  prevent  such  persons  from  canying  out  their  contracts  with 
the  plain'tiflf,  and  from  entering  into  other  contracts  with  the  plain- 
tiff;  and  for  maliciously  and  wrongfully  intimidating  such  persons, 
and  coercing  them  to  break  their  contracts  with  the  plaintiff;  and 
intimidating  such  servants  in  their  employ,  and  coercing  them  to 
leave  the  service  of  their  employers,  to  the  injury  of  the  plaintiff;  and 
for  unlawfully  conspiring,  together  with  other  persons,  to  do  the 
acts  aforesaid,  with  intent  to  injure  the  plaintiff. 

There  was  also  a  paragraph  in  the  statement  of  claim,  claiming 
damages  for  the  publication  of  the  plaintiff's  name  in  a  ''  black  list," 
issued  by  the  defendants,  and  a  prayer  for  an  injimction  to  prevent 
the  continuance  and  repetition  of  the  acts  complained  of. 

The  foDowing  facts  were  proved.  The  plaintiff  was  a  butcher  at 
lisbum,  in  the  county  of  Antrim,  about  eight  miles  from  Belfast, 
where  he  had  carried  on  business  for  a  number  of  years.  He  had  in 
his  emplo3m[ient  one  Robert  Dickie,  his  foreman,  who  had  been  with 
him  for  ten  years.  The  plaintiff  had  been  in  the  habit  of  sending 
large  quantities  of  meat  to  Andrew  Munce,  a  butcher  in  Belfast,  and 
had  been  doing  so  for  some  twenty  years.  There  was  no  contract  in 
writing  between  them;  but,  whatever  amoimt  the  plaintiff  sent, 
Mimce  took  and  paid  for  —  the  amount  being,  on  an  average,  of  the 
value  of  £30  a  week. 

The  defendants  John  Craig,  John  Davey,  and  Joseph  Quinn  were 
butchers'  assistants  in  Belfast;  and  the  defendants,  Henry  Doman 
and  Robert  Shaw,  butchers'  assistants  in  Lisbum.  In  the  spring  of 
1895  these  defendants  and  several  others  in  the  same  occupation 
formed  themselves  into  an  association,  which  was  duly  registered  un- 
der the  Trade  Union  Acts,  1871  and  1876,  tmder  the  title  of  "  The 
Belfast  Journeymen  Butchers'  Assistants'  Association,"  of  which  the 
defendant  Davey  became  the  Secretary.  The  plaintiff's  men  were  not 
members  of  the  association.  At  the  commencement  of  July,  1895,  the 
defendants'  association  required  the  plaintiff  to  dismiss  Robert  Dickie 
from  his  emplo3maent,  which  he  refused  to  do.  Upon  that  the  de- 
fendants' society  threatened  to  withdraw  the  plaintiff's  men  from  his 
service.  A  deputation  was  sent  down  to  meet  the  plaintiff  at  Lisbum, 
and  a  meeting  was  held  in  MagiU's  pubUc-house,  Lisbum,  on  the  9th 
July,  at  which  the  defendants  Craig,  Quinn,  Doman,  and  Shaw  were 
present  —  Craig  being  in  the  chair.  ITie  plaintiff  stated  that  he  had 
coaie  on  behalf  of  his  men,  and  was  ready  to  pay  all  fines  and  demands 
against  them,  and  asked  to  have  them  admitted  into  the  society.  The 
defendant  Shaw  objected,  and  said  that  the  plaintiff's  men  should  be 
pimished,  and  should  be  put  out  to  walk  the  streets  for  twelve  months. 
The  plaintiff  objected  to  this,  as  Dickie  was  a  married  man  with  a 
family.  Shaw  moved,  and  Morgan  seconded  a  resolution  that  the 
plaintiff's  assistants  should  be  called  out,  and  it  was  carried.  The 
defendants  stated  that  they  could  pick  out  plenty  of  men  to  work  for 


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964  QUINN  V.  LEATHEM  [CHAP.  VIII. 

the  plaintiff  from  their  Ust;  the  plaintiff  replied  that  they  were  not 
suitable  for  his  business,  and  refused  to  put  his  own  men  out.  Craig 
then  said  that  the  plaintiff's  meat  would  be  stopped  at  Mimce's,  if  the 
plaintiff  would  not  comply  with  their  wishes.  The  plaintiff  still  re- 
fused. The  defendants  then  called  out  some  of  the  plaintiff's  em- 
ployees. Edward  Dickie,  a  servant  of  the  plaintiff,  was  brought  to  a 
meeting  of  the  defendants'  society,  held  over  Doman's  shop  in  Lis- 
bum,  and  was  ordered  to  leave  the  plaintiff,  the  society  imdertaking 
to  pay  him  the  same  wages  as  he  had  been  receiving  from  the  plaintiff. 
Dickie,  yielding  to  this  order,  left  the  plaintiff  without  notice.  "  Black 
lists  "  were  issued  by  the  society  upon  which  the  names  of  persons  were 
posted  who  had  offended  against  the  society's  rules.  Leathem's  name 
was  posted,  and  also  the  name  of  John  M'Bride,  a  flesher  in  Lisbum, 
who  was  dealing  with  the  plaintiff.  Subsequently,  however,  Doman 
and  others  of  the  defendants  came  to  M'Bride;  and  on  his  imdertak- 
ing not  to  deal  any  more  with  Leathem,  his  name  was  struck  out. 

On  the  6th  September,  1896,  the  defendant  Davey  wrote  to  the 
plaintiff  the  following  letter:  — 

"  I  have  been  instructed  to  write  you  if  you  would  be  kind  enough 
to  reply  on  or  before  Tuesday,  10th,  whether  you  have  made  up  your 
mind  to  continue  to  employ  non-union  labour.  If  you  continue  as  at 
present,  our  society  will  be  obliged  to  adopt  extreme  measures  in  your 
case.  Trusting  that  you  will  see  the  wisdom  of  acceding  to  our  views 
at  once,  I  remain,"  &c. 

On  the  13th  September,  Davey  wrote  to  Munce:  — 

"  A  deputation  has  been  appointed  to  wait  on  you,  or  your  respon- 
sible representative,  on  Monday  evening,  the  16th  inst.,  at  6.30  p.  m., 
to  come  to  a  decision  in  regard  to  this  case  of  Leathem  &  Sons,  as  we 
are  anxious  to  have  a  settlement  at  once." 

To  this  Mimce  repUed:  — 

"  In  reply  to  your  letter  re  Leathem  &  Sons,  I  cannot  see  my  way 
to  attend  any  deputation  of  the  sort,  as  it  is  quite  out  of  my  province 
to  interfere  with  the  Kberty  of  any  man.  But  why  refer  to  me  in  this 
matter  ?  I  do  not  think  it  fair  for  you  to  come  at  me  in  the  matter, 
seeing  it  appears  to  be  the  Messrs.  Leathem  that  you  wish  to  interfere 
with." 

On  the  16th  September  a  deputation  of  the  defendants'  society  went 
to  Mxmce's  establishment,  and  had  an  interview  with  W.  F.  Munce, 
the  son  of  Andrew  Mimce,  and  asked  him  to  put  pressure  on  his 
father  to  stop  dealing  with  the  plaintiff.  W.  F.  Munce  repUed  by 
letter  on  the  17th  September:  — 

"  A  deputation  of  the  Journeymen  Butchers'  Association  waited  at 
Com  Market  yesterday  evening,  with  reference  to  the  case  of  the  pm*- 
chase  of  meat  from  Henry  Leathem,  Lisbum.  In  accordance  with 
promise,  I  placed  the  views  of  the  deputation  before  Mr.  Mimce,  and 
in  reply  he  wishes  to  state  he  could  not  interfere  to  bring  pressure  to 


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CHAP.  VIII.]  QUINN  V.  LEATHEM  955 

bear  on  Mr.  Leathern  to  employ  none  but  society  men,  by  refusing  to 
piu-chase  meat  from  him,  as  that  would  be  outside  his  province,  and 
would  be  interfering  with  the  Uberty  of  another  man;  but  at  the  same 
time  he  will  strongly  recommend  Mr.  Leathern  to  adopt  the  views  of 
the  Journeymen  Butchers'  Association,  and  employ  men  belonging  to 
the  society." 

On  the  18th  September  Davey  wrote  to  Andrew  Munce:  — 

"  Have  submitted  yom*  letter  to  committee.  They  are  of  opinion 
that  in  the  main  it  is  unsatisfactory,  but  thanking  you  kindly  for  your 
recommendation  to  Mr.  Leathem,  with  whom  we  have  endeavoured  to 
make  a  satisfactory  arrangement,  but  have  failed;  so  therefore  have 
no  other  alternative  but  to  instruct  yom*  employees  to  cease  work  im- 
mediately Leathem's  beef  arrives." 

On  the  19th  September  Mimce  telegraphed  to  Leathem:  — 

"  Unless  you  arrange  with  society  you  need  not  send  any  beef  this 
week,  as  men  are  ordered  to  quit  work." 

Munce  ceased  to  deal  with  the  plaintiff,  and  the  plaintiff  was  obliged 
to  seU  off  the  meat  he  had  on  hand  at  a  heavy  loss  at  any  price  he  could 
get.  In  consequence  of  these  transactions  the  plaintiff's  business  was 
ruined. 

The  case  was  tried  before  FitzGibbon,  L.  J.,  at  the  Summer  Assizes 
of  1896,  at  Belfast.  The  defendants  did  not  offer  any  evidence,  their 
counsel  asking  for  a  direction  on  the  groimds:  1,  that  to  sustain  the 
action  a  contract  made  with  Leathem  must  be  proved  to  have  been 
made  and  broken  through  the  acts  of  the  defendants,  and  that  there 
was  no  evidence  of  such  contract  or  breach;  2,  that  there  was  no  evi- 
dence of  pecuniary  damage  to  the  plaintiff  through  the  acts  of  the 
defendants;  3,  that  the  ends  of  the  defendants  and  the  means  taken 
by  them  to  promote  those  ends  as  appearing  in  evidence  were  legiti- 
mate, and  there  was  no  evidence  of  actual  damage  to  the  plaintiff. 

The  learned  Lord  Justice  declined  to  withdraw  the  case  from  the 
jury,  and  left  to  them  the  foDowing  questions:  — 

1.  Did  the  defendants,  or  any  of  them,  wrongfully  and  maliciously 
induce  the  customers  or  servants  of  the  plaintiff  named  in  the  evidence 
to  refuse  to  deal  with  the  plaintiff  ?    Answer:  Yes. 

2.  Did  the  defendants,  or  any  two  or  more  of  them  maliciously 
conspire  to  induce  the  plaintiff's  customers  or  servants  named  in  the 
evidence,  or  any  of  them,  not  to  deal  with  the  plaintiff  or  not  to  con- 
tinue in  his  employment;  and  were  such  persons  so  induced  not  so  to 
do  ?    Answer:  Yes. 

3.  Did  the  defendants  Davey,  Doman,  and  Shaw,  or  any  of  them, 
publish  the  **  black  lists  "  with  intent  to  injure  the  plaintiff  in  his 
business;  and,  if  so,  did  the  publication  so  injure  him  ?    Answer.  Yes. 

FitzGibbon,  L.  J.,  in  summing  up,  told  the  jury  that  pecuniary  loss, 
directly  caused  by  the  conduct  of  the  defendants,  must  be  proved  in 
order  to  establish  a  cause  of  action;  and  he  advised  them  to  require 


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966  QUINN  V.  LEATHEM  [CHAP.  Vm. 

to  be  satisfied  that  such  loss  to  a  substantial  amount  had  been  proved 
by  the  plaintiff.  He  declined  to  teU  them  that,  if  actual  and  sub- 
stantial pecuniary  loss  was  proved  to  have  been  directly  caused  to  the 
plaintiff  by  the  wrongful  acts  of  the  defendants,  they  were  bound  to 
limit  the  amount  of  damages  to  the  precise  sum  so  proved.  He  told 
them  that,  if  the  plaintiff  gave  the  proof  of  actual  and  substantial  loss 
necessary  to  maintain  the  action,  they  were  at  liberty  in  assessing 
damages  to  take  all  the  cinmmstances  of  the  case,  including  the  ccm- 
duct  of  the  defendants,  reasonably  into  account.  The  Lord  Justice 
did  not  tell  the  jury  that  the  liability  of  the  defendants  depended  on 
any  question  of  law.  He  told  them  that  the  questions  left  to  them 
were  questions  of  fact  to  be  determined  on  the  evidence;  but  that 
they  included  questions  as  to  the  intent  of  the  defendants,  and,  in 
particular,  their  intent  to  injure  the  plaintiff  in  his  trade  as  distin- 
guished from  the  intent  of  legitimately  advancing  their  own  interests. 
The  Lord  Justice  did  not  teU  the  jury  that  the  defendants  could  be 
directly  asked  what  their  own  intention  was,  but  he  did  tell  them  that 
their  intention  was  to  be  inferred  from  their  acts  and  conduct  as 
proved,  and  that,  in  acting  upon  the  evidence  given  by  the  plaintiff, 
they  were  at  lib^y  to  have  regard  to  the  fact  that  the  def endants, 
who  might  have  given  the  best  evidence  on  the  subject,  had  not  been 
produced  to  explain,  qualify,  or  contradict  any  of  tike  evidence  given 
for  the  plaintiff  as  to  their  own  acts.  Upon  the  meaning  of  the  words 
"  wrongfully  and  maUciously  "  in  the  questions,  the  Lord  Justice  told 
the  jury  that  they  had  to  consider  whether  the  intent  and  actions  of 
the  defendants  went  beyond  the  limits  which  woidd  not  be  actionable, 
namely,  securing  or  advancing  their  own  interests,  or  those  of  their 
trade,  by  reasonable  means,  including  lawfid  combination,  or  whether 
their  acts,  as  proved,  were  intended  and  calculated  to  injure  the  plain- 
tiff in  his  trade,  through  a  combination  and  with  a  common  purpose, 
to  prevent  the  free  action  of  his  customers  and  servants  in  dealing  with 
him,  with  the  effect  of  actually  injuring  him,  as  distinguished  from 
acts  legitimately  done  to  secure  or  advance  their  own  interests. 
FinaUy,  he  told  the  jury  that  acts  done  with  the  object  of  increasing 
the  profits  or  raising  the  wages  of  any  combination  of  persons  such  as 
the  society  to  which  the  defendants  belonged,  whether  employers  or 
employed,  by  reasonable  and  legitimate  means,  were  perfectly  lawful 
and  were  not  actionable  so  long  as  no  wrongful  act  was  maliciously  — 
that  is  intentionally  —  done  to  injure  a  third  party.  To  constitute 
such  a  wrongful  act  for  the  purposes  of  this  case,  the  Lord  Justice  told 
the  jury  that  they  must  be  satisfied  that  there  had  been  a  conspiracy, 
a  common  intention,  and  a  combination,  on  the  part  of  the  defendants 
to  injure  the  plaintiff  in  his  business;  and  that  acts  must  be  proved  to 
have  been  done  by  the  defendants  in  furtherance  of  that  intention 
which  had  inflicted  actual  money  loss  upon  the  plaintiff  in  his  trade; 
and  that  whether  the  acts  of  the  defendants  were  or  were  not  in  that 


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CHAP,  Vni.]  QUINN  V.  LEATHEM  957 

sense  actionable,  was  the  question  which  the  jury  had  to  try  upon  the 
evidence. 

The  jury  found  for  the  plaintiff  with  £250  damages,  of  which  £50 
was  separately  assessed  for  damages  on  the  cause  of  action  relating  to 
the  "  black  list,"  and  £200  for  damages  on  the  other  causes  of  action 
and  judgment  was  thereupon  entered  for  the  plaintiff  for  £250  dam- 
ages and  costs. 

The  defendants  now  moved  to  set  aside  the  verdict  and  judgment  so 
had,  and  that  judgment  should  be  entered  for  them  on  the  groimd  of 
misdirection;  or  for  a  new  trial,  on  the  ground  that  the  damages  were 
excessive,  and  that  the  jury  were  allowed  to  take  the  "  black  lists  " 
into  accoimt. 

William  O'Brien,  J.  .  .  . 

The  right  infringed  is  the  right  to  live  by  labor. 

Physical  hindrances,  or  prevention  of  labor  by  phjrsical  means,  it 
was  conceded,  would  be  the  invasion  of  a  right,  and  that  would  cer- 
tainly be  the  case  whether  the  restraint  was  appKed  to  the  employer 
or  to  the  workman. 

If  temporal  loss  were  not  coercion,  it  could  be  used  to  the  degree  of 
a  person  being  starved.  The  proposition  on  which  the  judgment  of 
the  majority  (in  Allen  v.  Flood)  was  founded  in  this  respect  is  op- 
posed to  the  whole  analogy  of  the  law  that  makes  duress  of  property, 
or  menace  of  temporal  loss,  as  effectual  as  phjrsical  violence  to  avoid 
all  kinds  of  acts. 

In  The  Mogul  Steamship  Ck)mpany  v.  McGregor,  [1892]  A.  C.  25, 
the  trade  of  the  defendants  was  the  primary  object,  and  the  injury  to 
the  plaintiffs  was  the  result  of  the  means  taken  to  advance  that  object. 
There,  as  in  AUen  v.  Flood,  [1898]  A.  C.  1,  the  injury  to  others  was 
the  thing  intended,  as  the  means  of  carrying  out  another  object. 

There  is  an  observation  which  appears  to  me  to  gather  up  several 
of  the  fallacies  which  are  scattered  tlm)ugh  the  arguments  in  the  judg- 
ments of  the  majority  in  Allen  v.  Flood,  [1898]  A.  C.  1.  The  case  is 
put  by  Lord  Watson  as  if  it  were  a  question  whether  a  person  could 
be  made  liable  for  doing,  from  a  malicious  motive,  what,  without  such 
motive  he  could  do  lawfully.  In  fact  there  are  cases  in  law  in  which 
the  malice  makes  the  distinction  of  what  is  lawful  or  unlawful,  as  in 
malicious  prosecution,  or  takes  away  the  right  that  otherwise  exists,  as 
in  the  instance  of  privil^ed  commimication.  But  that  is  not  the  pres- 
ent case  at  all,  as  it  was  not  that  of  Allen  v.  Flood,  [1898]  A.  C.  1. 
The  defendant,  who  maliciously  instigated  the  thing,  is  not  the  person 
who  possessed  the  power  of  dismissal.  Therefore  the  supposed  consti- 
tutional objection,  that  the  law  could  not  enter  into  a  man's  mind,  has 


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958  QUINN  V.  LEATHEM  [CHAP.  VIH. 

no  place.  The  same  point  meets  the  case  of  the  butler  and  the  cook 
that  was  put  in  the  argument.  The  butler  tells  his  master  he  will 
leave  imless  the  cook  is  dismissed.  Lord  Herschell  snatched  at  the 
admission  of  coimsel,  that  the  cook  could  bring  an  action,  as  being  the 
logical  conclusion  from  his  argument.  With  great  respect,  it  is  neither 
logical  nor  the  law.  The  servant  is  the  master  of  his  own  actions. 
He  can  choose  his  own  company,  though  even  for  that  object  he  can- 
not use  threats.  But  in  this  case  it  was  another  person  that  assumed 
to  choose  his  company  for  him.  Allen  was  not  a  boiler-maker,  as  Craig 
was  not  a  butcher,  who  wished  to  leave.  Each  was  a  member  of  a 
trade  oi^nization,  and  had  no  duty  or  interest  of  his  own  to  interfere. 
What  relation  could  such  a  position  assume  but  that  of  intimidation  ? 

...  a  confusion  of  relations,  in  applying  the  proposition  that  a 
person  cannot  be  made  liable  for  maliciously  exercising  a  right  which 
he  possesses.  The  action  here  is  for  maliciously  causing  another  per- 
son to  exercise  a  right  which  that  other  person  possessed.  In  one  case, 
the  right  may  be  said  to  absorb  the  malice,  though  there  are  excep- 
tions to  the  rule  in  the  conunon  law.  But  how  can  it  absorb  another 
man's  malice  ? 

What  wrong  can  be  conceived  more  cruel  and  grievous  than  wilfully 
depriving  men  of  their  employment  ?  There  must  be  a  right,  correla- 
tive to  the  wrong.  What  right  can  be  more  sacred  than  the  right  to 
live  by  a  man's  labor  ?  But  then,  it  is  said,  the  wrong  and  the  right 
are  subject  to  the  legal  power  of  another  person.  That  is  the  case  in 
many  instances,  in  which  the  law  nevertheless  gives  a  remedy  for 
wrong  that  requires  the  exercise  of  another  person's  will.  That  is  the 
case  of  a  person  who  is  defamed;  the  damage  comes  from  those  who 
hear.  That  is  the  case  of  malicious  prosecution;  the  agency  is  that 
of  the  law.  The  servant  who  is  enticed  away  from  his  master,  leaves 
of  his  own  will.  The  woman  who  left  her  husband,  in  Winsmore  v. 
Greenbank,  Willes,  677,  did  so  with  her  own  consent;  the  actress  who 
broke  her  engagement,  in  Lumley  v.  Gye,  2  E.  &  B.  216,  could  have 
performed,  if  she  liked.  That  is  the  case  of  tenants  leaving  their 
holdings  on  accoimt  of  threats,  which  is  put  in  1  Rolle's  Abridgmenti 
108;  Action  sur  Case,  (N.)  pi.  21. 

Many  other  examples  could  be  given  where  the  law  allows  a  remedy, 
though  the  wrongful  act  requires  the  concurrence  of  another  person's 
will.  The  rule  is  the  same  as  to  crimes.  The  law  does  not  excuse 
instigation  to  crime  because  the  other  person  need  not  commit  the 
crime,  or  for  the  reason  that  it  is  impossible  to  separate  the  effect  of 
the  instigation  and  natxu^l  pravity  of  will,  which  was  the  ground 
erroneously  assigned  by  Coleridge,  J.,  for  his  opinion  in  Lumley  v. 
Gye,  2  £.  &  B.  216.    In  fact  the  law  makes  no  distinction  between 


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CHAP.  Vra.]  QUINN  V.  LEATHEM  959 

moral  and  physical  agency,  or  the  degrees  of  the  influence,  when  the 
cause  is  attached  to  the  consequence  by  the  verdict  of  the  jiuy. 


The  law  of  conspiracy,  which  is  traced  down,  in  Comyn's  Digest, 
and  after  him  in  the  notes  to  Saunders'  Reports,  and  in  several  Eng- 
lish judgments  as  well  as  in  the  judgment  in  Kearaey  v.  Lloyd,  26 
L.  R.  Ir.  268,  from  the  obsolete  writ  of  conspiracy,  through  the  action 
on  the  case  in  the  nature  of  conspiracy,  with  their  several  distinctions, 
and  which  was  originally  confined  to  false  accusations  of  crime,  has 
widened  out  by  the  expansion  of  social  conditions  and  the  increase  of 
wickedness,  imtil  it  embraces  in  its  modem  extent  every  kind  of  wrong 
committed  by  several  against  another,  and  has  been  appUed  in  a  mul- 
titude of  instances  where  the  law  gives  no  remedy  against  an  indi- 
vidual, which  was  the  utmost  that  was  determined  by  Allen  v.  Flood, 
[1898]  A.  C.  1. 

...  a  malicious  design  to  deprive  a  person  of  his  livelihood,  the 
malice  being  compounded  both  of  the  object,  and  the  want  of  any 
just  motive  of  personal  right.  For  no  one  contended  at  any  time 
that  the  object  of  drawing  all  persons  into  the  pen  of  a  trade  union, 
was  a  groimd  of  privilege  like  that  which  excused  the  act  in  The 
Mogul  Steamship  Co.  v,  M'Gregor,  [1892]  A.  C.  26,  where  the  defend- 
ants merely  waged  a  war  of  rivalry  in  their  trade.  However,  if  "  civil 
wrong  "  be  imderstood  in  the  sense  of  actionaUe  wrong,  the  rule,  so 
confined,  is  contrary  to  a  multitude  of  cases,  in  which  the  action  was 
adopted,  and  in  which  nevertheless  it  is  most  certain  there  was  no  legal 
remedy  against  a  single  defendant,  even  before  the  decision  of  Allen 
V.  Flood,  [1898]  A.  C.  1.  Indeed,  that  is  the  express  and  special  use 
of  the  action  of  conspiracy,  without  which  it  would  find  no  real  place 
in  practice,  though  it  is  not  impossible  such  an  action  could  be  main- 
tained for  what  is  actionable  also  in  the  case  of  an  individual. 

There  was  in  this  case  a  direct  design  to  injure  the  plaintiff.  That 
was  malice  alone.  The  act  was  not  done  in  exercise  of  any  right  the 
defendants  possessed.  It  was  done  through  the  agency  of  another  per- 
son by  improperly  influencing  his  will;  and  that  will  was  moved 
solely  by  their  act,  and  would  not  otherwise  have  been  exercised.  It 
was  done  by  numbers,  to  which  the  law  attaches  a  new  and  altered 
quaUty  of  more  formidable  wrong  —  the  f oimdation  of  conspiracy  — 
which  is  a  difference  in  things  themselves  that  can  never  be  taken 
out  of  the  law,  civil  or  criminal,  whilst  there  is  a  difference  between  a 
man  and  an  army.  Lastly,  there  was  the  damage  which  was  so  unjust 
as  itself  to  make  the  act  malicious. 

For  the  case  put,  of  a  person  maliciously  digging  on  his  own  land, 
and  draining  the  well  of  his  neighbor,  is  no  exception,  and  demon- 


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960  QUINN  V.  LEATHEM  [CHAP.  VHI. 

strates  the  weakness  of  the  argument  which  is  founded  on  it.  In  that 
case  the  act  could  not  be  prohibited  without  interfering  with  the  in- 
herent right  of  property;  and  the  right  of  the  neighbor  was  subject 
to  the  right  of  the  contiguous  owner.  The  two  rights  were  equal. 
The  right  absorbed  the  malice,  and  could  not  otherwise  co-exist  with 
it.  Here  the  defendants  possessed  no  right  which  they  could  not 
otherwise  exercise;  and  the  right  of  the  plaintiff  to  carry  on  his  trade 
was  not  subject  to  any  right  in  them.  No  right  of  interference  with 
others,  which  the  law  coidd  recognize,  coidd  attach  to  the  aggressions 
of  a  trade  union  —  to  their  plans  for  the  revision  of  the  relations  be- 
tween employers  and  employed  —  to  proceedings  conducting,  by  in- 
evitable sequence,  to  what  was  lately  expressed,  with  no  less  energy 
than  the  weight  attaching  to  the  author,  as  '*  the  destructive  demands 
of  a  class  upon  the  fimdamental  laws  on  which  civil  order  rests." 

Sm  P.  O'Brien,  L.  C.  J.,  and  Andbews,  J.,  deUvered  opinions  in 
favor  of  denying  defendants'  motion. 

Pallbs,  C.  B.,  dissented,  because  he  felt  himself  '^  coerced  by  the 
judgment  of  the  House  of  Lords  in  Allen  v.  Flood.  .  .  ." 

The  defendants'  motion  was  refused  with  costs. 

The  case  was  then  carried  to  the  Irish  Court  of  Appeal.  In  accord- 
ance with  the  opinions  there  delivered  by  Lord  Ashbourne,  Chan- 
cellor, Porter,  M.  R.,  Walker,  L.  J.,  and  Holmes,  L.  J.,  the 
decision  below,  as  to  the  verdict  and  judgment  for  £200,  was  affirmed 
with  costs;  the  judgment  for  the  plaintiff  being  amended  by  omitting 
the  part  as  to  the  recovery  of  £50  damages  which  was  separately  as- 
sessed on  account  of  the  "  black  list." 

Holmes,  L.  J.,  said :  '*  The '  black  list '  was  only  an  overt  act  of  the 
conspiracy,  and  the  sum  awarded  for  it  is  included  in  the  £200." 

One  of  the  defendants,  Quinn,  applied  to  the  House  of  Lords. 

Lord  Chancellor  Halsburt,  Lords  Macnaghten,  Shand, 
BRABiPTON,  Robertson,  and  Lindley  deUvered  opinions  in  favor  of 
dismissing  the  appeal. 

Earl  of  Halsburt,  L.  C. 

[As  to  the  effect  of  the  decision  in  Allen  v.  Flood.] 
Now  the  hypothesis  of  fact  upon  which  Allen  v.  Flood  was  decided 
by  a  majority  in  this  House  was  that  the  defendant  there  neither  ut- 
tered nor  carried  into  effect  any  threat  at  all:  he  simply  warned  the 
plaintiff's  employers  of  what  the  men  themselves,  without  his  per- 
suasion or  influence,  had  determined  to  do,  and  it  was  certainly  proved 
that  no  resolution  of  the  trade  xmion  had  been  arrived  at  at  sJl,  and 
that  the  trade  union  official  had  no  authority  himself  to  call  out  the 
men,  which  in  that  case  was  argued  to  be  the  threat  which  coerced  the 
employers  to  discharge  the  plaintiff.  It  was  further  an  element  in 
the  decision  that  there  was  no  case  of  conspiracy  or  even  combination. 


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CHAP.  VIIlJ  QUINN  V.  LEATHEM  961 

What  was  allied  to  be  done  was  only  the  independent  and  single  ac- 
tion of  the  def endanty  actuated  in  what  he  did  by  the  desire  to  express 
his  own  views  in  favor  of  his  feUow-members.  It  is  true  that  I  per- 
sonally did  not  beheve  that  was  the  true  view  of  the  facts,  but,  as  I 
have  said,  we  must  look  at  the  hypothesis  of  fact  upon  which  the  case 
was  decided  by  the  majority  of  those  who  took  part  in  the  decision. 

Lord  Macnaghten. 

I  do  not  think  that  the  acts  done  by  the  defendants  were  done  **  in 
contemplation  or  furtherance  of  a  trade  dispute  between  employers 
and  workmen.''  So  far  as  I  can  see,  there  was  no  trade  dispute  at 
all.  Leathern  had  no  difference  with  his  men.  They  had  no  quarrel 
with  him.  For  his  part  he  was  quite  willing  that  all  his  men  should 
join  the  union.  He  offered  to  pay  their  fines  and  entrance  moneys. 
What  he  objected  to  was  a  cruel  punishment  proposed  to  be  inflicted 
on  some  of  his  men  for  not  having  joined  the  imion  sooner.  There  was 
certainly  no  trade  dispute  in  the  case  of  Munce.  But  the  defendants 
conspired  to  do  harm  to  Mimce  in  order  to  compel  him  to  do  harm  to 
Leathem,  and  so  enable  them  to  wreak  their  vengeance  on  Leathem's 
servants  who  were  not  members  of  the  union. 


Lord  Lindlet.*  My  Lords,  the  case  of  Allen  v.  Mood,  [1898]  A.  C. 
1,  has  so  important  a  bearing  on  the  present  appeal  that  it  is  neces- 
sary to  ascertain  exactly  what  this  House  really  decided  in  that  cele- 
brated case.  It  was  an  acticm  by  two  workmen  of  an  iron  c(»npany 
against  three  members  of  a  trade  union,  namely,  Allen  and  two  otiiers, 
for  maUciously,  wrongfully,  and  with  intent  to  injure  the  plaintiffis, 
procuring  and  inducing  the  iron  company  to  discharge  the  plaintiffs.' 
The  action  was  tried  before  Kennedy,  J.,  who  ruled  that  there  was 
no  evidence  to  go  to  the  jury  of  conspiracy,  intimidation,  coercion,  or 
breach  of  contract.  The  result  of  the  trial  was  that  the  plaintiffs  ob- 
tained a  verdict  and  judgment  against  Allen  alone.  He  appealed,  and 
the  only  question  which  this  House  had  to  determine  was  whether 
what  he  had  done  entitled  the  plaintiffs  to  maintain  their  action 
against  him.  What  the  jury  foimd  that  he  had  done  was,  that  he  had 
maliciously  induced  the  employers  of  the  plaintiffs  to  discharge  them, 
whereby  the  plaintiffs  suffered  damage.  Different  views  were  taken 
by  the  noble  Lords  who  heard  the  appeal  as  to  Allen's  authority  to 
call  out  the  members  of  the  xmion,  and  also  as  to  the  means  used  by 
Allen  to  induce  the  employers  of  the  plaintiffs  to  discharge  them; 
but,  in  the  opinion  of  the  noble  Lords  who  formed  the  majority  of 

1  Read  by  Lord  Davey  in  Lord  Lindley^s  absence. 
»  [18951  2  Q.  B.  22,  23;  [18981  A.  C.  3. 


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962  QUINN  V.  LEATHEM  [CHAP.  VIH. 

Your  Lordships'  House,  all  that  Allen  did  was  to  inform  the  employers 
of  the  plaintiffs  that  most  of  their  workmen  would  leave  them  if  they 
did  not  discharge  the  plaintiffs.'  There  being  no  question  of  con- 
spiracy, intimidation,  coercion,  or  breach  of  contract,  for  consideration 
by  the  House,  and  the  majority  of  their  Lordships  having  come  to  the 
conclusion  that  Allen  had  done  no  more  than  I  have  stated,  the  ma- 
jority of  the  noble  Lords  held  that  the  action  against  Allen  would  not 
lie;  that  he  had  infringed  no  right  of  the  plaintiffs;  that  he  had  done 
nothing  which  he  had  no  legal  right  to  do,  and  that  the  fact  that  he 
had  acted  maliciously  and  with  intent  to  injure  the  plaintiffs  did  not, 
without  more,  entitle  the  plaintiffs  to  maintain  the  action. 

My  Lords,  this  decision,  as  I  understand  it,  establishes  two  propo- 
sitions: one  a  far-reaching  and  extremely  important  proposition  of 
law,  and  the  other  a  comparatively  imimportant  proposition  of  mixed 
law  and  fact,  useful  as  a  guide,  but  of  a  very  different  character  from 
the  first. 

The  first  and  important  proposition  is  that  an  act  otherwise  lawful, 
although  harmful,  does  not  become  actionable  by  being  done  mali- 
ciously in  the  sense  of  proceeding  from  a  bad  motive,  and  with  intent 
to  annoy  or  harm  another.  This  is  a  legal  doctrine  not  new  or  laid 
down  for  the  first  time  in  Allen  v.  Flood,  [1898]  A.  C.  1;  it  had  been 
gaining  ground  for  some  time,  but  it  was  never  before  so  fully  and 
authoritatively  expounded  as  in  that  case.  In  applying  ibis  propo- 
sition care,  however,  must  be  taken  to  bear  in  mind,  first,  that  in 
Allen  V.  Flood,  [1898]  A.  C.  1,  criminal  responsibility  had  not  to  be 
considered.  It  would  revolutionize  criminal  law  to  say  that  the  crimi- 
nal responsibility  for  conduct  never  depends  on  intention.  Secondly, 
it  must  be  borne  in  mind  that  even  in  considering  a  person's  liability 
to  civil  proceedings  the  proposition  in  question  only  applies  to  "  acts 
otherwise  lawful,"  i.  e.,  to  acts  involving  no  breach  of  duty,  or,  in  other 
words,  no  wrong  to  any  one.    I  shall  refer  to  this  matter  later  on. 

The  second  proposition  is  that  what  Allen  did  infringed  no  ri^t  of 
the  plaintiffs,  even  although  he  acted  maliciously  and  with  a  view  to 
injure  them.  I  have  already  stated  what  he  did,  and  all  that  he  did, 
in  the  opinion  of  the  majority  of  the  noble  Lords.  If  their  view  of 
the  facts  was  correct,  their  conclusion  that  Allen  infringed  no  right 
of  the  plaintiffs  is  perfectly  intelligible,  and  indeed  unavoidable. 
Truly,  to  inform  a  person  that  others  will  annoy  or  injxu*e  him  unless 
he  acts  in  a  particulistr  way  cannot  of  itself  be  actionable,  whatever  the 
motive  or  intention  of  the  informant  may  have  been. 

My  Lords,  the  questions  whether  Allen  had  more  power  ovct  the 
men  than  some  of  their  Lordships  thought,  and  whether  Allen  did 
more  than  they  thought,  are  mere  questions  of  fact.  Neither  of  these 
questions  is  a  question  of  law,  and  no  court  or  juiy,  is  bound  as  a 

»  [1898]  A.  C.  p.  19,  Lord  Watson;  p.  115,  Lord  HerscheD;  pp.  147-150,  Lord 
Macnaghten;  pp.  161, 165,  Lord  Shand;  p.  175,  Lord  Davey ;  p.  178,  Lord  James. 


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CHAP.  Vni.]  QUINN  V.  LEATHEM  963 

matter  of  law  to  draw  from  the  facte  before  it  inferences  of  fact  similar 
to  those  drawn  by  noble  Lords  from  the  evidence  relating  to  Allen  in 
the  case  before  them. 

I  will  pass  now  to  the  facts  of  this  case,  and  consider  (1)  what  the 
plaintiff's  rights  were;  (2)  what  the  defendants'  conduct  was;  (3), 
whether  that  conduct  infringed  the  plaintiff's  rights.  For  the  sake  of 
clearness  it  will  be  convenient  to  consider  these  questions  in  the  first 
place  apart  from  the  statute  which  legalizes  strikes,  and  in  the  next 
place  with  reference  to  that  statute.  _ 

1.  As  to  the  plaintiff's  rights.  He  had  the  ordinary  rights  of  a 
British  subject.  He  was  at  Uberty  to  earn  his  own  living  in  his  own 
way,  provided  he  did  not  violate  some  special  law  prohibiting  him 
from  so  doing,  and  provided  he  did  not  infringe  the  rights  of  other 
people.  This  Uberty  involved  liberty  to  deal  with  other  persons  who  i 
were  willing  to  deal  with  him.  This  liberty  is  a  right  recognized  by 
law;  its  correlative  is  the  general  duty  of  every  one  not  to  prevent 
the  free  exercise  of  this  liberty,  except  so  far  as  his  own  liberty  of  . 
action  may  justify  him  in  so  doing.  But  a  person's  liberty  or  ri^t  ^ 
to  deal  with  others  is  nugatory,  unless  they  are  at  Uberty  to  deal  with  i 
him  if  they  choose  to  do  so.  Any  interference  with  their  Uberty  to  i 
deal  with  him  affects  him.  If  such  interference  is  justifiable  in  point  ^ 
of  law,  he  has  no  redress.  Again,  if  such  interference  is  wrongful, 
the  only  person  who  can  sue  in  respect  of  it  is,  as  a  rule,  the  person 
immediately  affected  by  it;  another  who  suffers  by  it  has  usuaUy  no 
redress;  the  damage  to  him  is  too  remote,  and  it  would  be  obviously 
practicaUy  impossible  and  highly  inconvenient  to  give  legal  redress  to 
aU  who  suffered  from  such  wrongs.  But  if  the  interference  is  wrong- 
ful and  is  intended  to  damage  a  third  person,  and  he  is  damaged  in 
fact  —  in  other  words,  ff  he  is  wrongfuUy  and  intentionaUy  struck  at 
through  others,  and  is  thereby  damnified  —  the  whole  aspect  of  the 
case  is  changed:  the  wrong  done  to  others  reaches  him,  his  rights  are 
infringed  although  indirectly,  and  damage  to  him  is  not  remote  or  un- 
foreseen, but  is  the  direct  consequence  of  what  has  been  done.  Our 
law,  as  I  understand  it,  is  not  so  defective  as  to  refuse  him  a  remedy 
by  an  action  under  such  circumstances.  The  cases  coUected  in  the 
old  books  on  actions  on  the  case,  and  the  illustrations  given  by  the  late 
Bowen,  L.  J.,  in  his  admirable  judgment  in  the  Mogul  Steamship 
Company's  Case,  23  Q.  B.  D.  613,  614,  may  be  referred  to  in  support 
of  the  foregoing  conclusion,  and  I  do  not  understand  the  decision  in 
AUen  V.  Flood,  [1898]  A.  C.  1,  to  be  opposed  to  it. 

If  the  above  reasoning  is  correct,  Lumley  v.  Gye,  2  E.  &  B.  216,  was 
rightly  decided,  as  I  am  of  opinion  it  clearly  was.  Further,  the  prin- 
ciple involved  in  it  cannot  be  confined  to  inducements  to  break  con- 
tracts of  service,  nor  indeed  to  inducements  to  break  any  contracts. 
The  principle  which  underUes  the  decision  reaches  aU  wrongful  acts 
done  intentionaUy  to  damage  a  particular  individual  and  actuaUy 


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964  QUINN  V.  LEATHEM  [CHAP.  Vni. 

damaging  him.  Temperton  v.  Russell,  [1893]  1  Q.  B.  715,  ought  to 
have  been  decided  and  may  be  upheld  on  this  principle.  That  case  was 
much  criticised  in  Allen  v.  Flood,  [1898]  A.  C.  1,  and  not  without 
reason;  for,  according  to  the  judgment  of  Lord  Esher,  the  defendants' 
liability  depended  on  motive  or  intention  alone,  whether  anything 
wrong  was  done  or  not.  This  went  too  far,  as  was  pointed  out  in 
Allen  V.  Flood,  [1898]  A.  C.  1.  But  in  Temperton  v.  Russell,  [1893] 
1  Q.  B.  715,  there  was  a  wrongful  act,  namely,  conspiracy  and  unjus- 
tifiable interference  with  Brentano,  who  dealt  with  the  plaintiff.  This 
wrongful  act  warranted  the  decision,  which  I  think  was  right. 

2.  I  pass  on  to  consider  what  the  defendants  did.  The  appellant 
and  two  of  the  other  defendants  were  the  officers  of  a  trade  union,  and 
the  jury  have  found  that  the  defendants  wrongfuUy  and  maliciously 
induced  the  customers  of  the  plaintiff  to  refuse  to  deal  with  him,  and 
maliciously  conspired  to  induce  them  not  to  deal  with  him.  There 
were  similar  findings  as  to  inducing  servants  of  the  plaintiff  to  leave 
him.  What  the  defendants  did  was  to  threaten  to  call  out  the  union 
workmen  of  the  plaintiff  and  of  his  customers  if  he  would  not  dis- 
charge some  non-imion  men  in  his  employ.  In  other  words,  in  order 
to  compel  the  plaintiff  to  discharge  some  of  his  men,  the  defendants 
threatened  to  put  the  plaintiff  and  his  customers,  and  persons  lawfully 
working  for  them,  to  all  the  inconvenience  they  could  without  using 
violence.  The  defendants'  conduct  was  the  more  reprehensible  be- 
cause the  plaintiff  difered  to  pay  the  fees  necessary  to  enable  his  non- 
union men  to  become  members  of  the  defendants'  union;  but  this 
would  not  satisfy  the  defendants.  The  facts  of  this  case  are  entirely 
different  from  those  which  this  House  had  to  consider  in  Allen  t;. 
Flood,  [1898]  A.  C.  1.  In  the  present  case  there  was  no  dispute  be- 
tween the  plaintiff  and  his  men.  None  of  them  wanted  to  leave  his 
employ.  Nor  was  there  any  dispute  between  the  plaintiff's  customers 
and  their  own  men,  nor  between  the  plaintiff  and  his  customers,  nor 
between  the  men  they  respectively  employed.  The  defendants  called 
no  witnesses,  and  there  was  no  evidence  to  justify  or  excuse  the  con- 
duct of  the  defendants.  That  they  acted  as  they  did  in  furtherance 
of  what  they  considered  the  interests  of  union  men  may  probably  be 
fairly  assumed  in  their  favor,  although  they  did  not  come  forward 
and  say  so  themselves;  but  that  is  all  that  can  be  said  for  them.  No 
one  can,  I  think,  say  that  the  verdict  was  not  amply  warranted  by 
the  evidence.  I  have  purposely  said  nothing  about  the  black  list,  as 
the  learned  judge  who  tried  the  case  considered  that  the  evidence  did 
not  connect  the  appellant  with  that  list.  But  the  black  list  was,  in 
my  opinion,  a  very  important  feature  in  the  case. 

3.  The  remaining  question  is  whether  such  conduct  infringed  the 
plaintiff's  rights  so  as  to  give  him  a  cause  of  action.  In  my  opinion, 
it  plainly  did.  The  defendants  were  doing  a  great  deal  more  than  ex- 
ercising their  own  rights:  they  were  dictating  to  the  plaintiff  and  his 
customers  and  servants  what  they  were  to  do.   The  defendants  were 


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CHAP.  VIII.]  QUINN  V.  LEATHEM  965 

violating  their  duty  to  the  plaintiff  and  his  customers  and  servants, 
which  was  to  leave  them  in  the  undisturbed  enjoyment  of  their  lib- 
erty of  action  as  ah-eady  explained.  What  is  the  legal  justification  or 
excuse  for  such  conduct  ?  None  is  alleged  and  none  can  be  foimd. 
This  violation  of  duty  by  the  defendants  resulted  in  damage  to  the 
plaintiff  —  not  remote,  but  immediate  and  intended.  The  intention 
to  injiure  the  plaintiff  negatives  all  excuses  and  disposes  of  any  ques- 
tion of  remoteness  of  damage.  Your  lordships  have  to  deal  with  a 
case,  not  of  damnum  absque  injuria,  but  of  damnum  cum  injuria. 

Every  element  necessary  to  give  a  cause  of  action  on  ordinary  prin- 
ciples of  law  is  present  in  this  case.  As  regards  authorities,  they  were 
lUl  exhaustively  examined  in  the  Mogul  Steamship  Co.  v.  MacGregor, 
[1802]  A.  C.  26,  and  Allen  v.  Flood,  [1898]  A.  C.  1,  and  it  is  unneces- 
sary to  dwell  upon  them  again.  I  have  examined  all  those  which  are 
important,  and  I  venture  to  say  that  there  is  not  a  single  decision 
anterior  to  Allen  v.  Flood,  [1898]  A.  C.  1,  in  favor  of  the  appellant. 
His  sheet  anchor  is  Allen  v.  Flood,  [1898]  A.  C.  1,  which  is  far  from 
covering  this  case,  and  which  can  only  be  made  to  cover  it  by  greatly 
extending  its  operation. 

It  was  contended  at  the  bar  that  if  what  was  done  in  this  case  had 
been  done  by  one  person  only,  his  conduct  would  not  have  been  ac- 
tionable, and  that  the  fact  that  what  was  done  was  affected  by  many 
acting  in  concert  makes  no  difference.  My  Lords,  one  man  without 
others  behind  him  who  would  obey  his  orders  could  not  have  done 
what  these  defendants  did.  One  man  exercising  the  same  control  over 
others  as  these  defendants  had  could  have  acted  as  they  did,  and,  if 
he  had  done  so,  I  conceive  that  he  would  have  committed  a  wrong 
towards  the  plaintiff  for  which  the  plaintiff  could  have  maintained  an 
action.  I  am  aware  that  in  Allen  v.  Flood,  [1898]  A.  C.  1,  Lord 
Herschell,  [1898]  A.  C.  at  pp.  128,  138,  expressed  his  opinion  to  be 
that  it  was  immaterial  whether  Allen  said  he  would  call  the  men  out 
or  not.  This  may  have  been  so  in  that  particular  case,  as  there  was 
evidence  that  Allen  had  no  power  to  call  out  the  men,  and  the  men 
had  determined  to  strike  before  Allen  had  anything  to  do  with  the 
matter.  But  if  Lord  HerscheU  meant  to  say  that  as  a  matter  of  law 
there  is  no  difference  between  giving  information  that  men  will  strike, 
and  making  them  strike,  or  threatening  to  make  them  strike,  by  call- 
ing them  out  when  they  do  not  want  to  strike,  I  am  unable  to  concur 
with  him.  It  is  aU  very  well  to  talk  about  peaceable  persuasion.  It 
may  be  that  in  Allen  v.  Flood,  [1898]  A.  C.  1,  there  was  nothing  more; 
but  here  there  was  very  much  more.  What  may  begin  as  peaceable 
persuasion  may  easily  become,  and  in  trades  union  disputes  generally 
does  become,  peremptory  ordering,  with  threats  open  or  covert  of 
very  unpleasajQt  consequences  to  those  who  are  not  persuaded.  Call- 
ing workmen  out  involves  very  serious  consequences  to  such  of  them 
as  do  not  obey.  Black  lists  are  real  instruments  of  coercion,  as  every 
man  whose  name  is  on  one  soon  discovers  to  his  cost.   A  combination  | 


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966 


QUINN  V.  LEATHEM 


[CHAP.  vni. 


[■  not  to  work  is  one  thing,  and  is  lawful.  A  combination  to  prevent 
others  from  working  by  annoying  them  if  they  do  is  a  very  different 
thing,  and  is  prima  fade  unlawful.  Again,  not  to  work  oneself  is 
lawful  so  long  as  one  keeps  oflf  the  poor-rates,  but  to  order  men  not  to 
work  when  they  are  willing  to  work  is  another  thing.  A  threat  to  call 
men  out  given  by  a  trade  xmion  oflScial  to  an  employer  of  men  belong- 
ing to  the  union  and  willing  to  work  with  him  is  a  form  of  coercion, 
intimidation,  molestation,  or  annoyance  to  them  and  to  him  very  dif- 
ficult to  resist,  and,  to  say  the  least,  requiring  justification.  None  was 
offered  in  this  case. 

P  My  Lords,  it  is  said  that  conduct  which  is  not  actionable  on  the 
/  part  of  one  person  cannot  be  actionable  if  it  is  that  of  several  acting 
•  in  concert.  This  may  be  so  where  many  do  no  more  than  one  is  sup- 
posed to  do.  But  nimibers  may  annoy  and  coerce  where  one  may  not. 
Annoyance  and  coercion  by  many  may  be  so  intolerable  as  to  become 
actionable,  and  produce  a  result  which  one  alone  could  not  produce. 
I  am  aware  of  the  difficulties  which  surround  the  law  of  conspiracy 
both  in  its  criminal  and  civil  aspects;  and  older  views  have  been 
greatly  and,  if  I  may  say  so,  most  beneficiaUy  modified  by  the  discus- 
sions and  decisions  in  America  and  this  country.  Amongst  the  Ameri- 
can cases,  I  would  refer  especially  to  Vegelahn  v.  Guntner,  167  Mass. 
92,  where  coercion  by  other  means  than  violence,  or  threats  of  it,was 
held  unlawful.  In  this  country  it  is  now  settled  by  the  decision  of  this 
House  in  the  case  of  the  Mogul  Steamship  Co.,  [1892]  A.  C.  25;  23 
Q.  B.  D.  598,  that  no  action  for  a  conspiracy  lies  against  persons  who 
act  in  concert  to  damage  lypother  and  do  damage  him,  but  who  at  the 
same  time  merely  exercise  their  own  rights  and  who  infringe  no  rights 
of  other  people.  Allen  v.  Flood,  [1898]  A.  C.  1,  emphasizes  the  same 
doctrine.  The  princij^e  was  strikingly  illustrated  in  the  Scottish 
Cooperative  Society  v.  Glasgow  Fleshers'  Association,  35  Sc.  L.  R. 
645,  which  was  referred  to  in  the  course  of  the  argument.  In  this  case 
some  butchers  induced  some  salesmen  not  to  sell  meat  to  the  plaintiffs. 
The  means  employed  were  to  threaten  the  salesmen  that  if  they  con- 
tinued to  seU  meat  to  the  plaintiffs,  they,  the  butchers,  would  not  buy 
from  the  salesmen.  There  was  nothing  unlawful  in  this,  and  the 
learned  judge  held  that  the  plaintiffs  showed  no  cause  of  action,  al- 
though the  butchers'  object  was  to  prevent  the  plaintiffs  from  buying 
for  cooperative  societies  in  competition  with  themselves,  and  the  de- 
fendants were  acting  in  concert.      « 

The  cardinal  point  of  distinction  between  such  cases  and  the  present 
is  that  in  them,  although  damage  was  intentionally  inflicted  on  the 
plaintiffs,  no  one's  right  was  infringed  —  no  wrongful  act  was  com- 
mitted; whilst  in  the  present  case  the  coercion  of  the  plaintiff's 
customers  and  servants,  and  of  the  plaintiff  through  them,  was  an 
infringement  of  their  liberty  as  well  as  his,  and  was  wrongful  both 
to  them  and  also  to  him,  as  I  have  already  endeavored  to  show. 


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CHAP.  VIII.]  QUINN  V.  LEATHEM  967 

Intentional  damage  which  arises  from  the  mere  exercise  of  the  rights 
of  many  is  not,  I  apprehend,  actionable  by  our  law  as  now  settled.   To  ' 
hold  the  contrary  would  be  unduly  to  restrict  the  liberty  of  one  set! 
of  persons  in  order  to  uphold  the  liberty  of  another  set.    According  to 
our  law,  competition,  with  all  its  drawbacks,  not  only  between  indi- 
viduals, but  between  associations,  and  between  them  and  individuals, , 
is  permissible,  provided  nobody *s  rightp  are  infringed.    The  law  is 
the  same  for  all  persons,  whatever  their  callings:  it  applies  to  masters 
as  well  as  to  men;  the  proviso,  however,  is  all-important,  and  it  also 
applies  to  both,  and  limits  the  rights  of  tht)se  who  combine  to  lock-out 
as  well  as  the  rights  of  those  who  strike.   But  coercion  by  threats,  open 
or  disguised,  not  only  of  bodily  harm  but  of  serious  annoyance  and 
damage,  is  prima  Jadey  at  all  events,  a  wrong  inflicted  on  the  persons 
coerced;  and  in  considering  whether  coercion  has  been  appUed  or  not, 
numbers  cannot  be  disregarded. 

I  conclude  this  part  of  the  case  by  saying  that,  in  my  opinion,  the 
direction  given  to  the  jury  by  the  learned  judge  who  tried  the  case 
was  correct,  so  far  as  liie  liability  of  the  defendants  timis  on  princi- 
ples of  common  law,  and  that  the  objection  taken  to  it  by  the  counsel 
for  the  appeUant  is  untenable.  I  mean  the  objection  that  the  learned 
judge  did  not  distinguish  between  coercion  to  break  contracts  of  serv- 
ice, and  coercion  to  break  contracts  of  other  kinds,  and  coercion  not 
to  enter  into  contracts. 

I  pass  now  to  consider  the  eflfect  of  the  statute  38  &  39  Vict.  c.  86. 

[The  opinion  on  this  point  is  omitted.] 

My  Lords,  I  will  detain  your  Lordships  no  longer.  Allen  v.  Flood, 
[1898]  A.  C.  1,  is  in  many  respects  a  very  valuable  decision,  but  it 
may  be  easily  misunderstood  and  carried  too  far. 

Your  Lordships  are  asked  to  extend  it  and  to  destroy  that  individual 
liberty  which  our  laws  so  anxiously  guard.  The  appellant  seeks  by 
means  of  Allen  v.  Flood,  [1898]  A.  C.  1,  and  by  l(^cal  reasoning  based 
upon  some  passages  in  the  judgments  given  by  the  noble  Lords  who 
decided  it,  to  drive  your  liordships  to  hold  that  boycotting  by  trades 
unions  in  one  of  its  most  objectionable  forms  is  lawful,  and  gives  no 
cause  of  action  to  its  victims  although  they  may  be  pecimiarily  ruined 
thereby. 

My  Lords,  so  to  hold  would,  in  my  opinion,  be  contrary  to  well- 
settled  principles  of  F<ng1iah  law,  and  wotdd  be  to  do  what  is  not  yet 
authorized  by  any  statute  or  legal  decision. 

In  my  opinion  this  appeal  ought  to  be  dismissed  with  costs. 

Order  appealed  from  affirmed,  and  appeal  dismissed  with  costs.^ 

1  England,  Trade  Disputes  Act.  1906.  6  Ed.  7,  c.  47. 
1.  —  The  following  paragraph  shall  be  added  as  a  new  paragraph  after  the  first 
paragraph  of  section  three  of  the  Conspiracy  and  Protection  of  Property  Act, 

**  An  act  done  in  pursuance  of  an  agreement  or  combination  by  two  or  more 


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968  VBGBLAHN  V.  GUNTNEB  [CHAP.  VUI. 

VEGELAHN  v.  GUNTNER 
SuFRBHE  JxTDiciAL  CousT,  Massachubbtts,  Ootobbb  26,  1896. 
Reported  in  167  MauachueeUe  Beporte,  92, 

Bill  in  equitt  agaiiist  fourteen  individual  defendants  and  two 
trades  unions^ 

The  following  decree  was  entered  at  a  preliminary  hearing  upon 
the  bill:  ''  This  cause  came  on  to  be  heard  upon  the  plaintifif's  motion 
for  a  temporary  injunction;  and  after  due  hearing,  at  which  the  sev- 
eral defendants,  were  represented  by  coimsel,  it  is  ordered,  adjudged, 
and  decreed  that  an  injunction  issue  pendente  lite,  to  remain  in  force 
until  the  further  order  of  this  court,  or  of  some  justice  thereof,  re- 
straining the  respondents  and  each  and  every  (d  them,  their  agents 

[jperBons  shall,  if  done  in  contemplation  or  furtherance  of  a  trade  dispute,  not  be 
actionable  unkas  the  act,  if  done  without  any  such  agreement  or  combination, 
would  be  actionable." 

I    2.  —  (1)  It  shaU  be  lawful  for  one  or  more  povons,  acting  on  their  own  behalf 
6r  on  benalf  of  a  trade  union  or  of  an  individual  employer  or  firm  in  contempla- 
^on  OT  furtherance  of  a  trade  dispute,  to  attend  at  or  near  a  house  or  place  where 
a  person  resides  or  works  or  carries  on  business  or  happens  to  be,  if  they  so  attend 
merely  for  the  purpose  of  peacefully  obtaining  or  communicating  information,  or 
;  of  DMoef ully  persuiMiing  any  penon  to  work  or  abstain  from  working. 
;     (2)  Section  seven  of  the  Conspiracy  and  Protection  of  Property  Act,  1876,  is 
'  hereby  repealed  from  "  attending  at  or  near  "  to  the  ei^  of  the  section. 
\      3.  —  An  act  done  by  a  person  in  contemplation  or  furtherance  of  a  trade  dJs- 
\  pute  shall  not  be  actionable  on  the  ground  only  that  it  induces  some  other  per- 
'  son  to  break  a  contract  of  employment  or  that  it  is  an  interference  with  the  trade, 
business,  or  employment  of  some  other  person,  or  with  the  rigjbt  of  some  other 
person  to  dispose  of  his  capital  or  his  labor  as  he  wills. 

4.  —  (1)  Jok  action  against  a  trade  imion,  whether  of  workmen  or  masters,  or 
against  any  members  or  officials  thereof  on  behalf  of  themselves  and  ail  other 
members  of  the  trade  union  in  respect  of  any  tortious  act  alle^  to  have  be^i 
committed  by  or  on  behalf  of  the  trade  union,  snail  not  be  entertamed  by  any  court. 

(2)  Nothing  in  this  section  shall  affect  tne  liability  of  the  trustees  of  a  trade 
union  to  be  sued  in  the  events  provided  for  by  the  Trades  Union  Act,  1871,  sec- 
tion nine,  except  in  respect  of  any  tortious  act  committed  by  or  on  behalf  of  the 
union  in  contemplation  or  in  furtneranoe  of  a  trade  dispute. 

5.  —  (1)  This  Act  may  be  cited  as  the  Trade  Disputes  Act,  1906.  and  the  Trade 
Union  Acts,  1871  and  1876,  and  this  Act  may  be  cited  tc^ether  as  the  Trade  Union 
Acts,  1871  to  1906. 

(2)  In  this  Act  the  expression  "  trade  union  "  has  the  same  meaning  as  in  the 
Trside  Union  Acts,  1871  and  1876,  and  shall  include  any  combination  as  therein 
defined,  notwithstanding  that  such  combination  may^oe  the  branch  of  a  trade 
union. 

(3)  In  this  Act  ana  m  the  Conspiracy  and  Protection  of  Property  Act,  1875,  the 
expression  ''  trade  dispute  "  means  any  dispute  between  employers  and  workmen, 
or  between  workmen  and  workmen,  which  is  connected  with  the  employment  or 
non-employment,  or  the  terms  of  the  employment,  or  with  Uie  conditions  of  labor, 
of  any  person,  and  the  expression  ^  workmen  "  means  all  persons  employed  in 
trade  or  industr>r,  whether  or  not  in  the  emplo3rment  of  the  empJover  with  whom  a 
trade  dispute  arises;  and,  in  section  three  of  the  last-mentioned  Act,  the  words 
"  between  employers  and  workmen  "  shall  be  repealed. 

See  Smith,  Crucial  Issues  in  Labor  Litigation,  20  Harvard  Law  Rev.  345,  351, 
note  3. 

^  The  statement  has  been  abridged. 


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CHAP.  VIU.]  VEGELAHN  V.  GUNTNER  969 

and  servants,  from  interfering  with  the  plaintiff's  business  by  patrol* 
ling  the  sidewalk  or  street  in  front  or  in  the  vicinity  of  the  premises 
occupied  by  him,  for  the  purpose  of  preventing  any  person  or  persons 
who  now  are  or  may  hereafter  be  in  his  employment,  or  desirous  of 
entering  the  same,  from  entering  it,  or  continuing  in  it;  or  by  ob- 
structing or  interfering  with  such  persons,  or  any  others,  in  entering 
or  leaving  the  plaintiff's  said  premises;  or  by  intimidating,  by  threats 
or  otherwise,  any  person  or  persons  who  now  are  or  may  hereafter  be 
in  the  employment  of  the  plaintiff,  or  desirous  of  entering  the  same, 
from  entering  it,  or  continuing  in  it;  or  by  any  scheme  or  conspiracy 
among  themselves  or  with  others,  organized  for  the  purpose  of  annoy- 
ing, hindering,  interfering  with,  or  preventing  any  person  or  persons 
who  now  are  or  may  hereafter  be  in  the  employment  of  the  plaintiff, 
or  desirous  of  entering  the  same,  from  entering  it,  or  frcnn  continuing 
therein." 

Hearing  upon  the  bill  and  answers  before  Holmes,  J.,  who  reported 
the  case  for  the  consideration  of  the  full  court,  as  follows:  — 

"  The  facts  admitted  or  proved  are  that,  following  upon  a  strike  of 
the  plaintiff's  workmen,  the  defendants  have  conspired  to  prevent  the 
plaintiff  from  getting  workm^  and  thereby  to  prevait  him  from 
carrying  on  his  business  unless  and  until  he  will  adopt  a  schedule  of 
prices  which  has  been  exhibited  to  him,  and  for  the  purpose  of  eomr^ 
pelling  him  to  accede  to  that  schedule,  but  for  no  other  purpose.  If 
he  adopts  that  schedule  he  will  not  be  interfered  with  further.  The 
means  adopted  for  preventing  the  plaintiff  from  getting  workmen  are, 
(1)  in  the  first  place,  persuasion  and  social  pressure.  And  these 
means  are  sufficient  to  affect  the  plaintiff  disadvantageously,  althou^^ 
it  does  not  appear,  if  that  be  material,  that  they  are  sufficient  to  crush 
him.  I  ruled  that  the  employment  of  these  means  for  the  said  pur- 
pose was  lawful,  and  for  that  reason  refused  an  injunction  against  the 
employment  of  them.  If  the  ruling  was  wrong,  I  find  that  an  injunc- 
tion ought  to  be  granted. 

'^  (2)  I  find  also,  that,  as  a  further  means  for  accomplishing  the 
desired  end,  threats  of  personal  injury  or  unlawful  harm  were  con- 
veyed to  persons  seeking  employment  or  employed,  although  no  actual 
violence  was  used  beyond  a  technical  battery,  and  although  the  threats 
were  a  good  deal  disguised,  and  express  words  were  avoided.  It  ap- 
peared to  me  that  there  was  danger  of  similar  acts  in  the  future.  I 
ruled  that  conduct  of  this  kind  should  be  enjoined. 

''  The  defendants  established  a  patrol  of  two  men  in  front  (d  the 
plaintiff's  factory,  as  one  of  the  instrumentalities  of  their  plan.  The 
patrol  was  changed  every  hoiur,  and  continued  from  half-past  six  in 
the  morning  until  half-past  five  in  the  afternoon,  on  one  of  the  busy 
streets  of  Boston.  The  number  of  men  was  greater  at  times,  and  at 
times  showed  some  little  inclination  to  stop  the  plaintiff's  door,  which 
was  not  serious,  but  seemed  to  me  proper  to  be  enjoined.   The  patrol 


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970  VEGELAHN  V.  GUNTNBB  [CHAP.  Vin. 

proper  at  times  went  further  than  simple  advice,  not  obtruded  beyond 
the  point  where  the  other  person  was  willing  to  listen,  and  conduct  of 
that  sort  is  covered  by  (2)  above,  but  its  main  purpose  was  in  aid  of 
the  plan  held  lawful  in  (1)  above.  I  was  satisfied  that  there  was  prob- 
ability of  the  patrol  being  continued  if  not  enjoined.  I  ruled  that  the 
patrol,  so  far  as  it  confined  itself  to  persuasion  and  giving  notice  of  the 
strike,  was  not  imlawful,  and  limited  the  injunction  accordingly. 

"  There  was  some  evidence  of  persuasion  to  break  existing  contracts. 
I  ruled  that  this  was  unlawful,  and  should  be  enjoined. 

"  I  made  the  final  decree  appended  hereto.  If,  on  the  forgoing 
facts,  it  ought  to  be  reversed  or  modified,  such  decree  is  to  be  entered 
as  the  full  court  may  think  proper;  otherwise,  the  decree  is  to 
stand." 

The  final  decree  was  as  follows:  ''  This  cause  came  on  to  be  heard, 
and  was  argued  by  coimsel;  and  thereupon,  on  consideration  thereof, 
it  is  ordered,  adjudged,  and  decreed  that  the  defendants,  and  each  and 
every  of  them,  their  agents  and  servants,  be  restrained  and  enjoined 
from  interfering  with  the  plaintiflf's  business  by  obstructing  or  ph3rs- 
ically  interfering  with  any  persons  in  entering  or  leaving  the  plain- 
tiff's premises  numbered  141,  143,  145,  147  North  Street  in  said 
Boston,  or  by  intimidating,  by  threats,  express  or  implied,  of  violence 
or  physical  harm  to  body  or  property,  any  person  or  persons  who  now 
are  or  hereafter  may  be  in  the  employment  of  the  plaintiff,  or  desirous 
of  entering  the  same,  from  entering  or  continuing  in  it,  or  by  in  any 
way  hindering,  interfering  with,  or  preventing  any  person  or  persons 
who  now  are  in  the  employment  of  the  plaintiff  from  continuing 
therein,  so  long  as  they  may  be  bound  so  to  do  by  lawful  contract." 

Allen,  J.  The  principal  question  in  this  case  is  whether  the  de- 
fendants should  be  enjoined  against  maintaining  the  patrol.  The  re- 
port shows  that,  following  upon  a  strike  of  the  plaintiff's  workmen, 
the  defendants  conspired  to  prevent  him  from  getting  workmen,  and 
thereby  to  prevent  him  from  carrying  on  his  business,  unless  and  until 
he  should  adopt  a  certain  schedule  of  prices.  The  means  adopted 
were  persuasion  and  social  pressure,  threats  of  personal  injury  or  un- 
lawful harm  conveyed  to  persons  employed  or  seeking  employment, 
and  a  patrol  of  two  men  in  front  of  the  plaintiff's  factory,  maintained 
from  half-past  six  in  the  morning  till  half-past  five  in  the  afternoon, 
on  one  of  the  busiest  streets  of  Boston.  The  number  of  men  was 
greater  at  times,  and  at  times  showed  some  little  disposition  to  stop 
the  plaintiff's  door.  The  patrol  proper  at  times  went  further  than 
simple  advice,  not  obtruded  beyond  the  point  where  the  other  person 
was  willing  to  listen;  and  it  was  found  that  the  patrol  would  probably 
be  continued,  if  not  enjoined.  There  was  also  some  evidence  of  per- 
suasion to  break  existing  contracts. 

The  patrol  was  maintained  as  one  of  the  means  of  carrying  out  the 
defendants'  plan,  and  it  was  used  in  combination  with  social  pressure, 


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CHAP.  Vm.]  VEGELAHN  V.  GUNTNEB  971 

threats  of  personal  injury  or  imlawful  harm,  and  persuasion  to  break 
existing  contracts.  It  was  thus  one  means  of  intimidation  indirectly 
to  the  plaintiff,  and  directly  to  persons  actually  employed,  or  seeking 
to  be  employed,  by  the  plaintiff,  and  of  rendering  such  employment 
xmpleasant  or  intolerable  to  such  persons.  Such  an  act  is  an  unlaw- 
ful interference  with  the  rights  both  of  employer  and  of  employed. 
An  employer  has  a  right  to  engage  all  persons  who  are  willing  to  work 
for  him,  at  such  prices  as  may  be  mutually  agreed  upon;  and  persons 
employed  or  seeking  employment  have  a  corresponding  right  to  enter 
into  or  remain  in  the  employment  of  any  person  or  corporation  willing 
to  employ  them.  These  rights  are  seemed  by  the  Constitution  itself. 
Commonwealth  v.  Perry,  165  Mass.  117;  People  v.  Gillson,  109  N.  Y. 
389;  Braceville  Coal  Co.  v.  People,  147  lU.  66,  71;  Ritchie  v.  People, 
155  m.  98;  Low  v.  Rees  Printing  Co.,  41  Neb.  127.  No  one  can  law- 
fully interfere  by  force  or  intimidation  to  prevent  employers  or  per- 
sons employed  or  wishing  to  be  employed  from  the  exercise  of  these 
rights.  In  Massachusetts,  as  in  some  other  States,  it  is  even  made  a 
criminal  offence  for  one  by  intimidation  or  force  to  prevent  or  seek  to 
prevent  a  person  from  entering  into  or  continuing  in  the  employment 
of  a  person  or  corporation.  Pub.  Sts.  c.  74,  §  2.  Intimidation  is  not 
limited  to  threats  of  violence  or  of  physical  injury  to  person  or  prop* 
erty.  It  has  a  broader  signification,  and  there  also  may  be  a  moral 
intimidation  which  is  illegal.  Patrolling  or  picketing,  under  the  cir- 
carastances  stated  in  the  report,  has  elements  of  intimidation  like 
those  which  were  found  to  exist  in  Sherry  v.  Perkins,  147  Mass.  212. 
It  was  declared  to  be  unlawful  in  Regina  v.  Druitt,  10  Cox  C.  C.  592; 
Regina  v.  Hibbert,  13  Cox  C.  C.  82;  and  R^a  v.  Bauld,  13  Cox 
C.  C.  282.  It  was  assumed  to  be  unlawful  in  TroUope  t;.  London 
Building  Trades  Federation,  11  T.  L.  R.  228,  though  in  that  case  the 
pickets  were  withdrawn  before  the  bringing  of  the  biU.  The  patrol 
was  an  unlawful  interference  both  with  the  plaintiff  and  with  the 
workmen,  within  the  principle  of  many  cases,  and,  when  instituted 
for  the  purpose  of  interfering  with  his  business,  it  became  a  private 
nuisance.  See  Carew  v.  Rutherford,  106  Mass.  1;  Walker  v.  Cronin, 
107  Mass.  555;  Barr  v.  Essex  Trades  Council,  8  Dick.  101;  Murdock 
V.  Walker,  152  Penn.  St.  595;  Wick  China  Co.  v.  Brown,  164  Penn. 
St.  449;  Coeur  d'Alene  Consolidated  &  Mining  Co.  v.  Miners'  Union, 
51  Fed.  Rep.  260;  Temperton  v.  Russell,  [1893]  1  Q.  B.  715;  Flood 
V.  Jackson,  11  T.  L.  R.  276;  Wright  v.  Hennessey,  a  case  before  Baron 
Pollock,  52  Alb.  L.  J.  104;  Judge  v.  Bennett,  36  W.  R.  103;  Lyons  v. 
Wilkins,  [1896]  1  Ch.  811. 

The  defendants  contend  that  these  acts  were  justifiable,  because 
they  were  only  seeking  to  secure  better  wages  for  themselves  by  com- 
pelling the  plaintiff  to  accept  their  schedule  of  wages.  This  motive 
or  purpose  does  not  justify  maintaining  a  patrol  in  front  of  the  plain- 
tiff's premises,  as  a  means  of  carrying  out  their  conspiracy.    A  com- 


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972  VBGELAHN  V.  GUNTNEB  [CHAP.  VIII. 

bination  among  persons  merely  to  regulate  their  own  conduct  is  within 
allowable  competition,  and  is  lawful,  although  others  may  be  indi- 
rectly affected  thereby.  But  a  combination  to  do  injurious  acts  ex- 
pressly directed  to  another,  by  way  of  intimidation  or  constraint 
either  of  himself  or  of  persons  employed  or  seeking  to  be  employed 
by  him,  is  outside  of  allowable  competition,  and  is  unlawful.  Various 
decided  cases  fall  within  the  former  class,  for  example:  Worthington 
V.  Waring,  157  Mass.  421;  Snow  v.  Wheeler,  113  Mass.  179;  Bowen 
V.  Matheson,  14  Allen,  499;  Commonwealtii  v.  Hunt,  4  Met.  Ill; 
Heywood  v.  TiUscm,  76  Maine,  225;  Cote  v.  Murphy,  159  Penn.  St. 
420;  Bohn  Manuf .  Co.  v.  Hollis,  54  Minn.  223;  Mogul  Steamship  Co. 
V.  McGr^or,  [1892]  A.  C.  25;  Curran  v.  Treleaven,  [1891]  2  Q.  B. 
545,  561.    Tlie  present  case  falls  within  the  latter  class. 

Nor  does  the  fact  that  the  defendants'  iacts  might  subject  them  to 
an  indictment  prevent  a  court  of  equity  from  issuii^  an  injtmction. 
It  is  true  tiiat  ordinarily  a  court  of  equity  will  decline  to  issue  an 
injunction  to  restrain  the  o(nnmission  of  a  crime;  but  a  continuing 
injury  to  property  or  business  may  be  aijoined,  although  it  may  also 
be  punishable  as  a  nuisance  or  other  crime.  Sherry  t^.  Perkins,  147 
Mass.  212;  In  re  Debs,  158  U.  S.  564,  593,  599;  Baltimwe  &  Poto- 
mac Raikoad  v.  Fifth  Baptist  Church,  108  U.  S.  317,  329;  Cranford 
V.  TyreU,  128  N.  Y.  341,  344;  Gilbert  v.  Mickle,  4  Sandf.  Ch.  357; 
Mobile  t^.  Louisville  &  NashvUle  Railroad,  84  Ala.  115,  126;  Arthur 
V.  Oakes,  63  Fed.  Rep.  310;  Toledo,  Ann  Arbor,  A  North  Michigan 
Railway  v.  Pennsylvania  Co.,  54  Fed.  Rep.  730,  744;  Emperor  of 
Austria  v.  Day,  3  DeG.,  F.  &  J.  217,  239,  240,  253;  Hermann  Loog  t^. 
Bean,  26  Ch.  D.  306,  314,  316,  317;  Mcmson  v.  Tussaud,  [1894]  1 
Q.  B.  671,  689,  690,  698. 

A  question  is  also  presented  whether  the  court  should  enjoin  such 
interference  with  persons  in  the  employment  of  the  plaintiff  who  are 
not  boimd  by  contract  to  r^cnain  with  him,  or  with  persons  who  are 
not  under  any  existing  contract,  but  who  are  seeking  or  intending  to 
enter  into  his  employment.  A  conspiracy  to  interfere  with  the  plain- 
tiff's business  by  means  of  threats  and  intimidation,  and  by  maintistin- 
ing  a  patrol  in  front  of  his  premises  in  order  to  prevent  persons  from 
entering  his  employment,  or  in  order  to  prevent  persons  who  are  in 
his  anployment  from  continuing  therein,  is  unlawful,  even  though 
such  persons  are  not  bound  by  contract  to  enter  into  or  to  continue 
in  his  ^nployment;  and  the  injimction  should  not  be  so  limited  as  to 
relate  only  to  persons  who  are  bound  by  existing  contracts.  Walker 
V.  Cronin,  107  Mass.  555,  565;  Carew  v.  Rutherford,  106  Mass.  1; 
Sheny  v.  Perkins,  147  Mass.  212;  Temperton  v.  Russell,  [1893]  1 
Q.  B.  715,  728,  731;  Flood  v.  Jackson,  11  L.  T.  R.  276. 

In  the  opinion  of  a  majority  of  the  comi;  the  injimoUon  should  be 
in  the  form  originally  issued.  So  ordered. 


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CHAP.  Vni.]  VEGELAHN  V.  GUNTNER  973 

[The  opinion  of  Febld,  C.  J.,  is  omitted.  His  conclusion  was, 
"  tiiat  the  decree  entered  by  Mr.  Justice  Holmes  should  be  affirmed 
without  modification."  ] 

HoLMESy  J.  In  a  case  like  the  present,  it  seems  to  me  that,  what- 
ever the  true  result  may  be,  it  will  be  of  advantage  to  sound  thinking 
to  have  the  less  popular  view  of  the  law  stated,  and  therefore,  although 
when  I  have  been  imable  to  bring  my  brethren  to  share  my  convictions 
my  iaJmost  invariable  practice  is  to  defer  to  them  in  silence,  I  depart 
from  that  practice  in  this  case,  notwithstanding  my  unwillingness  to 
do  so  in  support  of  an  already  rendered  judgment  of  my  own. 

In  the  first  place,  a  word  or  two  should  be  said  as  to  the  meaning 
of  the  report.  I  assume  that  my  brethren  construe  it  as  I  meant  it 
to  be  construed,  and  that,  if  they  were  not  prepared  to  do  so,  they 
would  give  an  opportunity  to  the  defendants  to  have  it  amended  in 
accordance  with  what  I  state  my  meaning  to  be.  There  was  no  proof 
of  any  threat  or  danger  of  a  patrol  exceeding  two  men,  and  as  of 
course  an  injunction  is  not  granted  except  with  reference  to  what 
there  is  reason  to  expect  in  its  absence,  the  question  on  that  point  is 
whether  a  patrol  of  two  men  should  be  enjoined.  Again,  the  defend- 
ants are  enjoined  by  the  final  decree  from  intimidating  by  threats, 
express  or  impUed,  of  ph3n3ical  harm  to  body  or  property,  any  person 
who  may  be  desirous  of  entering  into  the  employment  of  the  plaintifiF 
so  far  as  to  prevent  him  from  entering  the  same.  In  order  to  test  the 
correctness  of  the  refusal  to  go  further,  it  must  be  assumed  that  the 
defendants  obey  the  express  prohibition  of  the  decree.  If  they  do  not, 
they  fall  within  the  injunction  as  it  now  stands,  and  are  liable  to 
sunmiary  pimishment.  The  important  difference  between  the  pre- 
liminary and  the  final  injunction  is  that  the  former  goes  further,  and 
forbids  the  defendants  to  interfere  with  the  plaintiff's  business  "  by 
any  scheme  .  .  .  organized  for  the  purpose  of  .  .  .  preventing  any 
person  or  persons  who  now  are  or  may  hereafter  be  .  .  .  desirous  of 
entering  the  [plaintiff's  employment]  from  entering  it."  I  quote  only 
a  part,  and  the  part  which  seems  to  me  most  objectionable.  This  in- 
cludes refusal  of  social  intercourse^  and  even  organized  persuasion  or 
argument,  although  free  from  any  threat  of  violence,  either  express 
or  implied.  And  this  is  with  reference  to  persons  who  have  a  legal 
right  to  contract  or  not  to  contract  with  the  plaintiff,  as  they  may  see 
fit.  Interference  with  existing  contracts  is  forbidden  by  the  final  de- 
cree. I  wish  to  insist  a  little  that  the  only  point  of  difference  which 
involves  a  difference  of  principle  between  the  final  decree  and  the 
preliminary  injunction  which  it  is  proposed  to  restore,  is  what  I  have 
mentioned,  in  order  that  it  may  be  seen  exactly  what  we  are  to  dis- 
cuss. It  appears  to  me  that  the  judgment  of  the  majority  turns  in 
part  on  the  assumption  that  the  patrol  necessarily  carries  with  it  a 
threat  of  bodily  harm.   That  assumption  I  think  unwarranted,  for  the 


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974  VEGELAHN  V.  GUNTNER  [CHAP.  Vm. 

reasons  which  I  have  given.  Furthennore,  it  cannot  be  said,  I  think, 
that  two  men  walking  together  up  and  down  a  sidewalk  and  speaking 
to  those  who  enter  a  certain  shop  do  necessarily  and  always  thereby 
convey  a  threat  of  force.  I  do  not  think  it  possible  to  discriminate 
and  to  say  that  two  workmen,  or  even  two  representatives  of  an  organ- 
ization of  workmen,  do,  —  especiaUy  when  they  are,  and  are  known 
to  be,  under  the  injunction  of  this  court  not  to  do  so.  See  Stimson, 
Handbook  to  Labor  Law,  §  60,  esp.  pp.  290,  298,  299,  300;  R^ma  v. 
Shepherd,  11  Cox  C.  C.  325.  I  may  add,  that  I  think  the  more  intel- 
ligent workingmen  believe  as  fully  as  I<Joihat  they  no  more  can  be 
permitted  to  usurp  the  State's  prerogative  of  force  than  can  their 
9Pponents  in  their  controversies.  But  if  I  am  wrong,  then  the  decree 
^s  it  stands  reaches  the  patrol,  since  it  appUes  to  all  threats  of  force. 
With  this  I  pass  to  the  real  difference  between  the  interlocutory  and 
the  final  decree. 

I  agree,  whatever  may  be  the  law  in  the  case  of  a  single  defendant, 
Bice  V.  Albee,  164  Mass.  88,  that  when  a  plaintiff  proves  that  several 
persons  have  combined  and  conspired  to  injure  his  business,  and  have 
done  acts  producing  that  effect,  he  shows  temporal  damage  and  a  cause 
of  action,  unless  the  facts  disclose,  or  the  defendants  prove,  some 
ground  of  excuse  or  justification.  And  I  take  it  to  be  settled,  and 
rightly  settled,  that  doing  that  damage  by  combined  persuasion  is  ac- 
tionable, as  well  as  doing  it  by  falsehood  or  by  force.  Walker  v. 
Cronin,  107  Mass.  565;  Morasse  v.  Brochu,  151  Mass.  567;  Tasker  v. 
Stanley,  153  Mass.  148. 

i  Nevertheless,  in  nimiberless  instances  the  law  warrants  the  inten- 
tional infliction  of  temporal  damage  because  it  r^ards  it  as  justified. 
It  is  on  the  question  of  what  shall  amount  to  a  justification,  and  more 
*  especially  on  the  nature  of  the  considerations  which  really  determine 
or  ought  to  determine  the  answer  to  that  question,  that  judicial  rea- 
soning seems  to  me  often  to  be  inadequate.  The  true  grounds  of  de- 
cision are  considerations  of  policy  and  of  social  advantage,  and  it  is 
vain  to  suppose  that  solutions  can  be  attained  merely  by  l(^c  and  the 
general  propositions  of  law  which  nobody  disputes.  Propositions  as  to 
public  policy  rarely  are  unanimously  accepted,  and  still  more  rarely, 
if  ever,  are  capable  of  unanswerable  proof.  They  require  a  special 
training  to  enable  any  one  even  to  form  an  intelligent  opinion  about 
them.  In  the  early  stages  of  law,  at  least,  they  generally  are  acted  on 
rather  as  inarticulate  instincts  than  as  definite  ideas  for  which  a 
rational  defence  is  ready. 

To  illustrate  what  I  have  said  in  the  last  paragraph,  it  has  been 
the  law  for  centuries  that  a  man  may  set  up  a  business  in  a  country 
town  too  small  to  support  more  thaii  one,  although  he  expects  and 
intends  thereby  to  ruin  some  one  already  there,  and  succeeds  in  his 
intent.  In  such  a  case  he  is  not  held  to  act  "  unlawfully  and  without 
justifiable  cause,"  as  was  alleged  in  Walker  v.  Cronin  and  Rice  v. 


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CHAP.  Vin.]  VEGELAHN  V.  GUNTNER  975 

Albee.   The  reason,  of  course,  is  that  the  doctrine  generally  has  been  Ij 
accepted  that  free  competition  is  worth  more  to  society  than  it  costs,  U 
and  that  on  this  ground  the  infliction  of  the  damage  is  privileged.  If 
Commonwealth  v.  Hunt,  4  Met.  Ill,  134.    Yet  even  this  proposition 
nowadays  is  disputed  by  a  considerable  body  of  persons,  including 
many  whose  intelligence  is  not  to  be  denied,  little  as  we  may  agree 
with  tiiem. 

I  have  chosen  this  illustration  partly  with  reference  to  what  I  have 
to  say  next.  It  shows  without  the  need  of  further  authority  that  the  j^l 
policy  of  allowing  free  competition  justifies  the  intentional  inflicting  ! 
of  temporal  damage,  including  the  damage  of  interference  with  a  f- 
man's  business,  by  some  means,  wh^i  the  damage  is  done  not  for  its 
own  sake,  but  as  an  instrumentaUty  in  reaching  the  end  of  victory  in 
the  battle  of  trade.  In  such  a  case  it  cannot  matter  whether  the  plain- 
tiff is  the  only  rival  of  the  defendant,  and  so  is  aimed  at  specifically, 
or  is  one  of  a  class  all  of  whom  are  hit.  The  only  debatable  ground 
is  the  nature  of  the  means  by  which  such  damage  may  be  inflicted. 
We  all  agree  that  it  cannot  be  done  by  force  or  threats  of  force.  We 
all  agree,  I  presume,  that  it  may  be  done  by  persuasion  to  leave  a 
rival's  shop  and  come  to  the  defendant's.  It  may  be  done  by  the 
refusal  or  withdrawal  of  various  pecuniary  advantages  which,  apart 
fnnn  this  consequence,  are  within  the  defendant's  lawful  control  It 
may  be  done  by  the  withdrawal,  or  threat  to  withdraw,  such  advan- 
tages f n»n  third  persons  who  have  a  right  to  deal  or  not  to  deal  with 
the  plaintiff,  as  a  means  of  inducing  than  not  to  deal  with  him  either 
as  customers  or  servants.  Commonwealth  v.  Hunt,  4  Met.  Ill,  132, 
133;  Bowen  v.  Matheson,  14  Allen,  499;  Heywood  v.  Tillson,  75 
Maine,  225;  Mogul  Steamship  Co.  v.  McGr^or,  [1892]  A.  C.  25. 

I  pause  here  to  remark  that  the  word  "  threats  "  often  is  used  as  if 
when  it  appeared  that  threats  had  been  made,  it  appeared  that  unlaw- 
ful conduct  had  begun.  But  it  depends  on  what  you  threaten.  As  a 
general  rule,  even  if  subject  to  some  exceptions,  what  you  may  do  in 
a  certain  event  you  may  threaten  to  do,^  that  is,  give  warning  of  your 

^  "  The  defendant  assodations  had  the  absolute  right  to  threaten  to  do  that 
which  they  had  the  right  to  do."  Parker,  CT.  J.,  in  National  Protective  Association 
V.  Cumminff,  170  New  York,  315,  p.  329.  .     ,^        ,^ .  t. 

**  It  will  be  said  that  a  man  has  the  absolute  right  to  threaten  to  do  that  which 
he  has  a  right  to  do.  Granted  that  what  you  may  absolutely  do  you  may  abso- 
lutely threaten  to  do  (give  imqualified  notice  of  your  intention  to  do).  But  it  does 
not  follow  that  you  may  conditionally  threaten  to  do  it.  The  right  to  absolutely 
refuse  to  work  and  the  right  to  conditionally  refuse  do  not.  as  against  third  persons, 
i.  6.,  persons  other  than  the  employer,  stand  to  each  other  in  the  relation  of  the 
greater  to  the  less.  The  former  does  not  necessarily  include  the  latter.  They  are 
distinct  from  each  other;  and  the  latter  may  sometimes  be  the  more  important 
and  the  more  dangerous  right  of  the  two."    20  Harvard  Law  Rev.,  p.  273. 

"  The  rij^t  to  quit  an  employment  which  is  terminable  at  will  may  include  a 
right  to  give  absolute  and  unqualified  notice  of  intention  to  leave." 

"  It  may  also  include,  as  against  an  employer ^  a  right  to  annex  any  possible  con- 
dition to  an  offer  to  work  or  to  a  threat  to  refrain  from  working.  By  *  right  as 
against  an  employer '  we  mean  that  an  employer  could  not  mamtain  an  action 


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976  VEGELHAN  V.  GUNTNEB  [CHAP.  VHI. 

intention  to  do  in  that  event,  and  thus  allow  the  other  person  the 
chance  of  avoiding  the  consequences.  So  as  to  ''  compulsion/'  it  de- 
pends on  how  you  "  compel."  Commonwealth  t^.  Hunt,  4  Met.  Ill, 
133.  So  as  to  "annoyance"  or  "intimidation."  Connors.  Kent,  Cur- 
ran  i;.  Treleaven,  17  Cox  C.  C.  364,  367,  368,  370.  In  Sherry  v.  Per- 
kins, 147  Mass.  212,  it  was  found  as  a  fact  that  the  disfday  of  banners 
which  was  enjoined  was  part  of  a  schane  to  prevent  workmen  from 
entering  or  remaining  in  the  plaintifif's  anployment,  "by  threats 
and  intimidalion."  The  context  showed  that  the  words  as  there 
used  meant  threats  of  personal  violence,  and  intimidation  by  caieing 
fear  of  it. 

I  have  seen  the  suggestion  made  that  the  conflict  betwem  emfdoyos 
and  employed  is  not  competition.  But  I  venture  to  assume  that  none 
of  my  brethren  would  rely  on  that  suggestion.  If  the  policy  oa  whidi 
our  law  is  founded  is  too  narrowly  expressed  in  the  teim  free  compe- 
tition, we  may  substitute  free  struggle  for  life.  Certainly  the  pdicy 
is  not  limited  to  struggles  between  p^ncms  of  the  same  daas  competing 
for  the  same  end.    It  applies  to  all  conflicts  of  temporal  interests. 

^  So  far,  I  suppose,  we  are  agreed.  But  there  is  a  notion  which  lat- 
terly has  been  insisted  on  a  good  deal,  that  a  combination  of  peisons 

I  to  do  what  any  one  of  them  lawfully  mi^t  do  by  himsdf  will  make 
the  otherwise  lawful  conduct  unlawful.  It  would  be  rash  to  say  that 
some  as  3ret  unformulated  truth  may  not  be  hidden  under  this  propo- 
sition.   But  in  the  general  form  in  which  it  has  been  presented   and 

lacoepted  by  many  courts,  I  think  it  plainly  untrue,  both  on  authority 

against  a  laborer  for  annexing  such  conditions.  The  employer  is  not  legally  dam- 
aged by  such  an  offer.  He  is  not  bound  to  accept  it.  Xis  between  B  and  C,  the 
person  wit^  whom  B  is  directly  dealing,  it  may  be  true  that '  the  rig^t  to  refuse  to 
deal  involves  the  right  to  name  any  terms  which  one  pleases,  and  to  refuse  to  deal 
except  on  these  terms.'  C  cannot  mitintftin  an  action  against  B  for  in«i«f.inff  on 
unreasonable  terms.  But  the  terms  or  conditions  annexed  to  an  offer  may  relate 
to  the  offeree's  relations  to  a  third  pencm,  and  [if  the  offeree  accepts  and  perfonns 
the  condititms]  that  may  raise  a  question  whether  sudi  third  person  has  any  ground 
of  complaint." 

"  We  think  that  the  ri^t  to  work  or  not  to  work  does  not  include,  at  agcnnit 
third  persons,  the  right  to  annex  any  possible  condition  to  an  offer  to  work  or  to  a 
notice  of  intention  to  refrain  from  work.  Suppose  that  B  offers  to  work  for  C  on 
condition  that  C  commits  a  battery  on  A.  Could  B  effectively  deny  that  he  insti- 
gated the  commission  of  the  battery  ?  Could  B  escape  liability  to  A  on  the  ground 
that  he  was  merely  stating  to  C  the  conditions  on  which  he  was  willing  to  exercise 
his  right  to  labor  or  not  to  labor  ?  "    20  Harvard  Law  Rev.  270-271. 

The  contrary  view  is  open  to  several  objections:  — 

"I,  It  assumes  that,  if  certain  conduct  of  B  does  not  violate  any  legal  right  of 
C,  it  cannot  infringe  a  le|^  right  of  A. 

"2.  It  overlooks  the  distinction  between  imconditionally  exercising  a  right,  and 
offering  to  exercise  it  (or  to  refrain  from  exercising  it)  on  conditbn  that  ibe  <meree 
shall  take  action  which  is  intended  to  produce^md  does  produce)  damage  to  a 
third  person. 

"  3.  It  assumes  that  one  who  intentionally  instigates  a  second  person  to  inflict 
damage  on  a  third  person  can  escape  r^ponsibility  by  putting  the  instigation  in 
the  form  of  a  conditional  offer  to  exercise,  or  to  refrain  from  exercising,  a  right 
which  he  had  against  the  second  person."    20  Harvard  Law  Rev.  269. 


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CHAP.  Vni.]  VEGELAHN  V.  GUNTNER  977 

and  on , principle.*  Commonwealth  v.  Hunt,  4  Met.  Ill;  Randall  v, 
Hazelton,  12  Allen,  412,  414.  There  was  combination  of  the  most 
flagrant  and  dominant  Idnd  in  Bowen  v.  Matheson  and  in  the  Mogul 
Steamship  Company's  case,  and  combination  was  essential  to  the  sue-  . 
cess  achieved.  But  it  is  not  necessary  to  cite  cases;  it  is  plain  from 
the  slightest  consideration  of  practical  affairs,  or  the  jnoet  superficial 
reading  of  industrial  history,  that  free  competition  means  combina- 
tion, and  that  the  organization  of  the  world,  now  going  on  so  fast, 
means  an  ever  increasing  might  and  scope  of  combination.  It  seems 
to  me  futile  to  set  oiu*  faces  against  this  tendency.  Whether  bene- 
ficial on  the  whole,  as  I  think  it,  or  detrimental,  it  is  inevitable,  unless 
the  fundamental  axioms  of  society,  and  even  the  fundamental  condi- 
tions of  life,  are  to  be  changed. 

One  of  the  eternal  conflicts  out  oi  which  life  is  made  up  is  that 
between  the  effort  of  every  man  to  get  the  most  he  can  for  his  services, 
and  that  of  society,  disguised  tmder  the  name  of  capital,  to  get  his 
services  for  the  least  possible  return.  C<Hnbination  on  the  one  side  is 
patent  and  powerful.  Combination  on  the  other  is  the  necessary  and 
desirable  counterpart,  if  the  battle  is  to  be  carried  on  in  a  fair  and  i 
equal  way.  I  am  unable  to  reconcile  Temperton  v.  Russell,  [1893]  1 
Q.  B.  715,  and  the  cases  which  follow  it,  with  the  Mogul  Steamship 
Company  case.  But  Temperton  v.  Russell  is  not  a  binding  authority 
here,  and  therefore  I  do  not  think  it  necessary  to  discuss  it. 

If  it  be  true  that  workingmen  may  combine  with  a  view,  among 
other  things,  to  getting  as  much  as  they  can  for  their  labor,  just  as 
d^ital  may  combine  with  a  view  to  getting  the  greatest  possible  re- 
turn, it  must  be  true  that  wh^i  combined  they  have  the  same  liberty 
that  combined  ci^ital  has  to  support  their  interests  by  argument, 
persuasion,  and  the  bestowal  or  refusid  at  those  advantages  which 
they  otherwise  lawfully  control.  I  can  remember  when  many  people 
thought  that,  apart  from  violence  or  breach  of  contract,  strikes  were 
wicked,  as  organized  rrfusals  to  work.  I  suppose  that  intelligwt 
economists  and  legislators  have  given  up  that  notion  to-day.  I  fed 
pretty  ccmfident  that  they  equally  will  abandon  the  idea  that  an  organ- 
ized refusal  by  workmen  of  social  intercourse  with  a  man  who  shall 

*  "  In  many  of  the  cases  the  element  of  combination  or  conspiracy  is  found.  If  ] 
the  act  be  lawful,  the  combination  or  conspiracy  to  commit  it  does  not  make  the  / 
act  unlawful;  if  it  be  unlawful,  the  combination  to  commit  it  may  render  its  com-  • 
mission  easier  and  may  aggravate  the  injury;  but  it  does  not  change  the  character 
of  the  act.  The  fact  of  combination  is  treated  by  the  courts  as  of  great  evidentiary  ; 
value  in  deciding  the  question  of  coercion  or  diu'ess."  Burke,  J.,  in  Bumwalt  Ice 
Co.  V.  Knickerbocker  Ice  Co.,  114  Md.  403,  414. 

"  The  gut  of  a  civil  action  of  this  sort  is  not  the  conspiracy  but  the  deoeit  or  > 
fraud  causing  damage  to  the  |>laintiff,  the  combination  b^ing  charged  merdy  for 
the  purpose  df  fixing  joint  liability  on  the  defendants."   Rugg,  J.,  in  New  En^and 
Foundation  Co.  v.  Keed,  209  Mass.  556. 

See  also  Romer,  L.  J.,  in  Giblan  v.  National  Amalgamated  Union,  [19031 2  K.  B. 
600, 619-620.  But  compare  Henshaw,  J.,  in  Vallejo  Ferry  Co.  v.  Solano  Club,  165 
Cal.255. 


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978  PLANT  V.  WOODS  [CHAP.  VHI. 

enter  their  antagonist's  employ  is  wrong,  if  it  is  dissociated  from  any 
threat  of  violence,  and  is  made  for  the  sole  object  of  prevailing  if  pos- 
sible in  a  contest  with  their  employer  about  the  rate  of  wages.  The 
fact,  that  the  immediate  object  of  the  act  by  which  the  benefit  to 
^  themselves  is  to  be  gained  is  to  injure  their  antagonist,  does  not  neces- 
sarily make  it  unlawful,  any  more  than  when  a  great  house  lowers  the 
price  of  certain  goods  for  tiie  purpose,  and  with  the  effect,  of  driving 
a  smaller  antagonist  from  the  business.  Indeed,  the  question  seems 
to  me  to  have  been  decided  as  long  ago  as  1842  by  the  good  sense  of 
Chief  Justice  Shaw,  in  Commonwealth  v.  Hunt,  4  Met.  111.  I  repeat 
at  the  end,  as  I  said  at  the  beginning,  that  this  is  the  point  of  differ- 
ence in  principle,  and  the  only  one,  between  the  interlocutory  and  the 
final  decree.  See  Regina  v.  Shepherd,  11  Cox  C.  C.  325;  Connor  t^. 
Kent,  Gibson  v,  Lawson,  Curran  v.  Treleaven,  17  Cox  C.  C.  354. 

The  general  question  of  the  propriety  of  dealing  with  this  kind  of 
case  by  injimction  I  say  nothing  about,  because  I  understaod  that  the 
defendant^  have  no  objection  to  the  final  decree  if  it  goes  no  further, 
and  that  both  parties  wish  a  decision  upon  the  matters  which  I  have 
discussed.^ 

PLANT  V.  WOODS 

SuFBBME  Judicial  Court,  Massachusetts,  Sbftbmbbb  5, 1900. 

BeporUd  in  176  MaaaachttaeUs  Reports,  492. 

Bill  in  bquitt  filed  in  the  Superior  Court,  by  the  officers  and 
members  *^  of  the  voluntary  association  known  as  Union  257,  Painters 
and  Decorators  of  America  of  Springfield,  Massachusetts,  which  Union 
is  affiMated  with  a  national  organization  of  the  same  name,  with  head- 
quarters at  Lafayette  in  the  State  of  Indiana,"  against  the  officers  and 
members  "  of  the  voluntary  association  known  as  Union  257,  Painters 
and  Decorators  of  America,  which  Union  is  affiliated  with  a  national 
organization  of  the  same  name,  with  headquarters  at  Baltimore  in  the 
State  of  Maryland,"  to  restrain  the  defendants  from  any  acts  or  the 
use  of  any  methods  tending  to  prevent  the  members  of  the  plaintiff 

1  InHmidatum,  See  Springhead  Co.  v.  R3ey,  6  Eq.  551  (intimidating  placards); 
Southern  R.  Co.  v.  Machinists  Union,  111  Fed.  49;  Knudsen  v,  Benn,  123  Fed.  636; 
Atchison  R.  Co.  v.  Gee,  139  Fed.  582:  Pope  Motor  Co.  v.  Keegan,  150  Fed.  148 
(collection  of  large  crowd):  Allis  Chalmers  Co.  v.  Iron  Molders  Union,  150  Fed. 
165  (crowds);  Goldfield  Consolidated  Mines  Co. ».  Goldfield  Miners'  Union,  159 
Fed.  500;  KoUey  v.  Robinson,  (C.  C.  A.)  187  Fed.  415;  Fortney  v.  Carter,  (C.  C. 
A.)  203  Fed.  454;  Bittner  v.  West  Virginia  Coal  Co..  (C.  C.  A.)  214  Fed.  716; 
Goldberg  v.  Stablemen's  Union,  149  Cal.  429;  Underhill  v,  Murphv,  117  Ky.  640; 
Sherry  v,  Perkins,  147  Mass.  212  (intimidatmg  banner);  Ideal  Mfg.  Co.  v,  Lud- 
wig,  149  Mich.  133  (crowd);  Baltic  Mining  Co.  v.  Judge,  177  Mich.  632;  Minne- 
S0&  Stove  Co.  V,  Cavanai^,  i31  Minn.  458;  Jones  v,  Maher,  62  Misc.  388; 
O'Neil  V.  Behanna,  182  Pa.  St.  236;  Jensen  v.  Cooks'  Union,  39  Wash.  531;  Com- 
mercial Printing  Co.  v.  Tacoma  Typographical  Union,  85  Wash.  234. 

Picketing,  see  American  Steel  C6.  v.  Wire  Drawers'  Union,  90  Fed.  608;  Iron 
Molders'  Union  v,  AlUs  Chalmers  Co.,  (C.  C.  A.)  166  Fed.  45;  Sona  v.  Aluminum 


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CHAP.  Vni.]  PLANT  V.  WOODS  979 

association  from  securing  employment  or  continuing  in  their  employ- 
ment. Hearing  before  Dewey,  J.,  who  entered  the  following  decree: 
"  The  cause  came  on  to  be  heard,  and  was  argued  by  counsel;  and 
thereupon,  on  consideration  thereof,  it  is  ordered  adjudged  and  de- 
creed that  the  defendant  association,  the  defendants,  and  each  and 
every  of  them,  their  conamittees,  agents,  and  servants,  be  restrained 
and  strictly  enjoined  from  interfering  and  from  combining,  conspir- 
ing, or  attempting  to  interfere,  with  the  employment  of  members  of 
the  plaintiffs'  said  association,  by  representing  or  causing  to  be  repre- 
sented in  express  or  implied  terms  to  any  employer  of  said  members 
of  plaintiffs'  association,  or  to  any  person  or  persons  or  corporation 
who  might  bec(Hne  employers  of  any  of  the  plaintiffs,  that  such  em- 
ployers will  suffer  or  are  likely  to  suffer  some  loss  or  trouble  in  their 
business  for  employing  or  continuing  to  employ  said  members  of  plain- 
tiffs' said  association;  or  by  representing,  directly  or  indirectly,  for 
the  purpose  of  interfering  with  the  employment  of  members  of  the 
plaintiffs'  said  association,  to  any  who  have  contracts  or  may  have 
dontracts  for  services  to  be  performed  by  employers  of  members  of 
plaintiffs'  said  association  that  such  persons  will  or  are  likely  to  suffer 
some  loss  or  trouble  in  their  business  for  allowing  such  employers  of 
members  of  plaintiffs'  said  association  (and  because  they  are  such 
employers)  to  obtain  or  perform  such  oontntcts;  or  by  intimidating 
or  attempting  to  intimidate,  by  threatd,  direct  or  indirect,  express  or 
implied,  of  loss  or  trouble  in  business,  or  otherwise,  any  person  or  per- 
sons or  corporation  who  now  are  employing  or  may  hereafter  employ 
or  desire  to  employ  any  of  the  members  of  the  plaintiffs'  said  associa- 
tion; or  by  attempting  by  any  scheme  or  conspiracy,  among  them- 
selves or  with  others,  to  annoy,  hinder,  or  interfere  with,  or  prevent 
any  person  or  persons  or  corporation  from  employing  or  continuing  to 
employ  a  member  or  members  of  plaintiffs'  said  association;  or  by 
causing,  or  attempting  to  cause,  any  person  to  discriminate  against 
any  employer  of  members  of  plaintiffs'  said  association  (because  he  is 
such  employer)  in  giving  or  sJlowing  the  performance  of  contracts  to 
or  by  such  employer;  and  from  any  and  all  acts,  or  the  use  of  any 
methods,  which  by  putting  or  attempting  to  put  any  person  or  persons 
or  corporation  in  fear  of  loss  or  trouble,  will  tend  to  hinder,  impede, 
or  obstruct  members,  or  any  member,  of  the  plaintiffs'  said  association 

OastingB  Co.,  (C.  C.  A.)  214  Fed.  936;  Kargee  Pumiture  Co.  v.  Woodworkers' 
Union,  165  Ind.  421:  Beck  v.  Teamsters'  Union,  118  Mich.  497. 

Annoyance  ofworkera  resorting  to  plaintiff.  Union  P.  R.  Co.  v.  Ruef,  120  Fed. 
102;  Frank  v,  Herold,  63  N.  J.  Eq.  443;  Jonas  Glass  Co.  v.  Glass  Blowers'  Ass'n, 
77  N.  J.  Eq.  219. 

Inducing  employer  to  break  coniracU,  Read  v.  Friendly  Society,  [1902]  2  K.  B. 
732;  Jonas  v.  Glass  Blowers'  Ass'n,  77  N.  J.  Eq.  219;  Flaccus  v.  Smith,  199  Pa. 
St.  128. 

Inducing  employees  to  break  corOract.    Hardie  Tynes  Mfg.  Co.  v.  Cruse,  189  Ala. 

^,       '^     v.  Gil      "^^ 


w,  Folsom  V.  Lewis,  208  Mass.  336;  Jonas  Glass  Co.  v.  Glass  Blowers'  Ass'n,  77 
N.  J.  Eq.  219;  Grassi  Contracting  Co.  v.  Bennett,  160  N.  Y.  Suppl.  279. 


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980  PLANT  V.  WOODS  [CHAP.  VIH. 

from  securing  employment  or  continuing  in  employment.  And  that 
the  plaintiffs  recover  their  costs,  taxed  as  in  an  action  of  law." 

The  case  was  reported,  at  the  request  of  both  parties,  for  the  de- 
termination of  this  court.    The  facts  appear  in  the  opinion. 

Hammond,  J.  This  case  arises  out  of  a  contest  for  supremacy  be- 
tween two  labor  unions  of  the  same  craft,  having  substantially  the 
same  constitution  and  by-laws.  The  chief  difference  between  them  is 
that  the  plaintiff  union  is  affiliated  with  a  national  organization  having 
its  headquarters  in  Lafayette  in  the  State  of  Indiana,  while  the  de- 
fendant union  is  affiliated  with  a  similar  organization  having  its  head- 
quarters in  Baltimore  in  the  State  of  Maryland.  The  plaintiff  union 
was  composed  of  workmen  who  in  1897  withdrew  from  the  defendant 
union. 

There  does  not  appear  to  be  anything  ill^al  in  the  object  of  either 
union  as  expressed  in  its  constitution  and  by-laws.  The  defendant 
union  is  also  represented  by  ddegates  in  the  Central  Labor  Union, 
which  is  an  organization  composed  of  five  delegates  from  each  trade 
union  in  the  city  of  Springfield,  and  had  in  its  constitution  a  provision 
for  levying  a  boycott  upon  a  complaint  made  by  any  union. 

The  case  is  before  us  upon  a  report  after  a  final  decree  in  favor  of 
the  plaintiffs,  based  upon  the  findings  stated  in  the  report  of  the 
master. 

The  contest  became  active  eariy  in  the  fall  of  1898.  In  September 
of  that  year,  the  members  of  the  defendant  union  declared  ''all 
painters  not  affiliated  with  the  Baltimore  headquarters  to  be  non- 
union men,'*  and  voted  to  "  notify  the  bosses  "  of  that  declaration. 
The  manifest  object  of  the  defendants  was  to  have  all  the  members  of 
the  craft  subjected  to  the  rules  and  discipline  of  their  particular  imion, 
in  order  that  they  might  have  better  control  over  the  whole  business, 
and  to  that  end  Uiey  combined  and  conspired  to  get  the  plaintiffs  and 
each  of  them  to  join  the  defendant  association,  peaceably  if  possible 
but  by  threat  and  intimidation  if  necessary.  Accordingly,  on  October 
7,  they  voted  that  "  if  our  demands  are  not  complied  with,  all  men 
working  in  shops  where  Lafayette  people  are  emplo}^  refuse  to  go  to 
work."  The  plaintiffs  resisting  whatever  persuasive  measures,  if  any, 
were  used  by  the  defendants,  the  latter  proceeded  to  carry  out  their 
plan  in  the  manner  fully  set  forth  in  the  master's  report.  Without  re- 
hearsing the  circumstances  in  detail  it  is  sufficient  to  say  here  that  the 
general  method  of  operations  was  substantially  as  follows:  — 

A  duly  authorized  agent  of  the  defendants  would  visit  a  shop  where 
one  or  more  of  the  plaintiffs  were  at  work  and  inform  the  employer  of 
the  action  of  the  defendant  union  with  reference  to  the  plaintiffs,  and 
ask  him  to  induce  such  of  the  plaintiffs  as  were  in  his  employ  to  sign 
application  for  reinstatement  in  the  defendant  union.  As  to  the 
general  nature  of  these  interviews  the  master  finds  that  the  defend- 
ants have  been  courteous  in  manner,  have  made  no  threats  of  personal 


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CHAP.  Vin.]  PLANT  V.  WOODS  981 

violence,  have  referred  to  the  plaintiffs  as  non-union  men,  but  have 
not  otherwise  represented  them  as  men  lacking  good  standing  in  their 
craft;  that  they  have  not  asked  that  the  Lafayette  men  be  discharged, 
and  in  some  cases  have  expressly  stated  that  they  did  not  wish  to 
have  them  discharged,  but  only  that  they  sign  the  blanks  for  reinstate- 
ment in  the  defendant  union.  The  master,  however,  further  finds, 
from  all  the  circumstances  under  which  those  requests  were  made,  that 
the  defendants  intended  that  employers  of  Lafayette  men  should  fear 
trouble  in  their  business  if  they  continued  to  employ  such  men,  and 
that  employers  to  whom  these  requests  were  made  were  justified  in 
believing  that  a  failure  on  the  pEurt  of  their  employees  who  were 
Lafayette  men  to  sign  such  reinstatement  blanks,  and  a  failure  on  the 
part  of  the  employers  to  dischaige  them  for  not  doing  so,  would  lead 
to  trouble  in  the  business  of  the  employers  in  the  nature  of  strikes  or 
a  boycott,  and  the  employers  to  whom  these  requests  were  made  did 
believe  that  such  results  would  follow,  and  did  suggest  their  belief  to 
the  defendants,  and  the  defendants  did  not  deny  that  such  results  . 
mi^t  occur;  tiiat  the  strikes  which  did  occur  i^pear  to  have  been 
steps  taken  by  the  defendants  to  obtain  the  dischaige  of  such  em- 
ployees as  were  Lafayette  men  who  declined  to  sign  application  blanks 
for  reinstatement;  that  these  d^endants  did  not  in  all  cases  threaten 
a  boycott  of  the  employers'  business,  but  did  threaten  that  the  place 
of  business  of  at  least  one  such  employer  would  be  left  off  from  a  so- 
called  ''  fair  list "  to  be  published  by  the  Baltimore  Union.  The  mas- 
ter also  found  that,  from  all  the  evidence  presented,  the  object  which 
the  Baltimore  men  and  the  defendant  association  sought  to  accomplish 
in  all  the  acts  which  were  testified  to  was  to  compel  the  members  of 
the  Lafayette  Union  to  join  the  Baltimore  Union,  and  as  a  means  to 
this  end  they  caused  strikes  to  be  instituted  in  the  shops  where  strikes 
would  seriously  interfere  with  the  business  of  the  shops,  and  in  all 
other  shops  they  made  such  representations  as  would  lead  the  proprie- 
tors- Uiereof  to  expect  trouble  in  their  business. 

We  have,  thercdfore,  a  case  where  the  defendants  have  conspired  to 
compel  the  members  of  ihe  plaintiff  union  to  join  ihe  defendant  union, 
and  to  carry  out  their  purpose  have  resolved  upon  such  coercion  and 
intimidation  as  naturally  may  be  caused  by  threats  of  loss  of  property 
by  strikes  and  boycott^,  to  induce  the  employers  either  to  get  the 
plaintiffs  to  ask  for  reinstatement  in  the  defendant  union,  or,  that 
failing,  then  to  discharge  them.  It  matters  not  that  this  request  to 
discharge  has  not  been  expressly  made.  There  can  be  no  doubt,  upon 
the  findings  of  the  master  and  the  facts  stated  in  his  report,  that  the 
compulsory  discharge  of  the  plaintiffs  in  case  of  non-compliance  with 
the  demands  of  the  defendant  imion  is  one  of  the  prominent  features 
of  the  plan  agreed  upon. 

It  is  well  to  see  what  is  the  meaning  of  this  threat  to  strike,  when 
tak^i  in  connection  with  the  intimation  that  the  employer  may  "  ex- 


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982  PLANT  V.  WOODS  [CHAP.  VIH. 

pect  trouble  in  his  business."  It  means  more  than  that  the  strikers 
will  cease  to  work.  That  is  only  the  preliminary  skirmish.  It  means 
that  those  who  have  ceased  to  work  will,  by  strong,  persistent,  and 
organized  persuasion  and  social  pressure  of  every  description,  do  all 
they  can  to  prevent  the  employer  from  procuring  workmen  to  take 
their  places.  It  means  much  more.  It  means  that,  if  these  peaceful 
measures  fail,  the  employer  may  reasonably  expect  that  unlawful 
physical  injiuy  may  be  done  to  his  property;  that  attempts  in  all  the 
wa3rs  practised  by  organized  labor  will  be  made  to  injure  him  in  his 
business,  even  to  his  ruin,  if  possible;  and  that,  by  the  use  of  vile  and 
opprobrious  epithets  and  other  annoying  conduct,  and  actual  and 
threatened  personal  violence,  attempts  will  be  made  to  intimidate 
those  who  enter  or  desire  to  enter  his  employ;  and  that  whether  or  not 
all  this  be  done  by  the  strikers  or  only  by  their  sympathizers,  or  with 
the  open  sanction  and  approval  of  the  former,  he  will  have  no  help 
from  them  in  his  efforts  to  protect  himself. 

However  mild  the  language  or  suave  the  manner  in  which  the  threat 
to  strike  is  made  imder  such  circumstances  as  are  disclosed  in  this 
case,  the  employer  knows  that  he  is  in  danger  of  passing  through 
such  an  ordeal  as  that  above  described,  and  those  who  make  the  threat 
know  that  as  well  as  he  does.  Even  if  the  intent  of  the  strikers,  so  far 
as  respects  their  own  conduct  and  influence,  be  to  discountenance  all 
actual  or  threatened  injury  to  person  or  property  or  business,  except 
that  which  is  the  direct  necessary  result  of  the  interruption  of  the 
work,  and  even  if  their  connection  with  the  injmious  and  violent  con- 
duct of  the  turbulent  among  ihem  or  of  their  sympathizers  be  not 
such  as  to  make  them  liable  criminally  or  even  answerable  civilly  in 
damages  to  those  who  suffer,  still  witii  full  knowledge  of  what  is  to 
be  expected  they  give  the  signal,  and  in  so  doing  must  be  held  to  avail 
themselves  of  the  degree  of  fear  and  dread  which  the  knowledge  of 
such  consequences  will  cause  in  the  mind  of  those  —  whether  their 
employer  or  fellow  workmen  —  against  whom  the  strike  is  directed; 
and  the  measure  of  coercion  and  intimidation  imposed  upon  those 
against  whom  the  strike  is  threatened  or  directed  is  not  fully  realized 
until  all  those  probable  consequences  are  considered. 

Such  is  the  nature  of  the  threat,  and  such  the  degree  of  coercion 
and  intimidation  involved  in  it. 

If  the  defendants  can  lawfully  perfoim  the  acts  complained  of  in 
the  city  of  Springfield,  they  can  pursue  the  plaintiffs  all  over  the 
State  in  the  same  manner,  and  compel  them  to  abandon  their  trade 
or  bow  to  the  behests  of  their  pursuers. 

It  is  to  be  observed  that  this  is  not  a  case  between  the  employer  and 
employed,  or,  to  use  a  hackneyed  expression,  between  capital  and 
labor,  but  between  laborers  all  of  the  same  craft,  and  each  having  the 
same  right  as  any  one  of  the  others  to  pursue  his  calling.  In  this,  as  in 
every  other  case  of  equal  rights,  the  right  of  each  individual  is  to  be 


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CHAP.  Vin.]  PLANT  V.  WOODS  983 

exercised  with  due  regard  to  the  similar  right  of  all  others,  and  the 
right  of  one  be  said  to  end  where  that  of  another  begins. 

The  right  involved  is  tKe  right  to  dispose  of  one's  labor  with  full  1 1 
freedom.  This  is  a  legal  right,  and  it  is  entitled  to  legal  protection. 
Sir  William  Erie  in  his  book  on  Trade  Unions,  page  12,  has  stated 
this  in  the  following  language,  which  has  been  several  times  quoted  ^ 
with  approval  by  judges  in  England :  "  Every  person  has  a  right  xmder 
the  law,  as  between  him  and  his  fellow  subjects,  to  full  freedom  in 
disposing  of  his  own  labor  or  his  own  capital  according  to  his  own 
will.  It  follows  that  every  other  person  is  subject  to  the  correlative 
duty  arising  therefrom,  and  is  prohibited  from  any  obstruction  to  the 
fullest  exercise  of  this  right  which  can  be  made  compatible  with  the 
exercise  of  similar  rights  by  others.  Every  act  causing  an  obstruction 
to  another  in  the  exercise  of  the  right  comprised  within  this  descrip- 
tion —  done,  not  in  the  exercise  of  the  actor's  own  right,  but  for  the 
purpose  of  obstruction  —  would  if  damage  should  be  caused  thereby 
to  the  party  obstructed,  be  a  violation  of  this  prohibition." 

The  same  rule  is  stated  with  care  and  discrimination  by  Wells,  J., 
in  Walker  v.  Cronin,  107  Mass.  565,  564:  "  Every  one  has  a  right  to 
enjoy  the  fruits  and  advantages  of  his  own  enterprise,  industry,  skill, 
and  credit.  He  has  no  right  to  be  protected  against  competition;  but 
he  has  a  right  to  be  free  from  malicious  and  wanton  interference, 
distiu'bance,  or  annoyance.  If  distiu'bance  or  loss  come  as  a  result 
of  competition,  or  the  exercise  of  like  rights  by  others,  it  is  damnum 
absque  injuria,  unless  some  superior  right  by  contract  or  otherwise  is 
interfered  with.  But  if  it  come  from  the  merely  wanton  or  malicious 
acts  of  others,  without  the  justification  of  competition  or  the  service 
of  any  interest  or  lawful  purpose,  it  then  stands  upon  a  different 
footing." 

In  this  case  the  acts  complained  of  were  calculated  to  cause  damage 
to  the  plaintiffs,  and  did  actually  cause  such  damage;  and  they  were 
intentionally  done  for  that  purpose.  Unless,  therefore,  there  was 
justifiable  cause,  the  acts  were  malicious  and  unlawful.  Walker  v. 
Cronin,  vJbi  supra,  Carew  v.  Rutherford,  106  Mass.  1,  and  cases  cited 
therein. 

The  defendants  contend  that  they  have  done  nothing  unlawful,  and, 
in  support  of  that  contention,  they  say  that  a  person  may  work  for 
whom  he  pleases;  and,  in  the  absence  of  any  contract  to  the  contrary, 
may  cease  to  work  when  he  pleases,  and  for  any  reason  whatever, 
whether  the  same  be  good  or  bad;  that  he  may  give  notice  of  his  in- ' 
tention  in  advance,  with  or  without  stating  the  reason;  that  what  one 
man  may  do  several  men  acting  in  concert  may  do,  and  may  agree  | 
beforehand  that  they  will  do,  and  may  give  notice  of  the  agreement;  I 
and  that  all  this  may  be  lawfully  done  notwithstanding  such  concerted 
action  may,  by  reason  of  the  consequent  interruption  of  the  work,  re- 
sult in  great  loss  to  the  employer  and  his  other  employees,  and  that 


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984  PLANT  V.  WOODS  [CHAP.  vm. 

such  a  result  was  intended.  In  a  general  sense,  and  without  refer- 
ence to  exceptions  arising  out  of  conflicting  public  and  private  inter- 
ests, all  this  may  be  true. 

It  is  said  also  that,  where  one  has  the  lawful  right  to  do  a  thing, 
the  motive  by  which  he  is  actuated  is  immaterial.  One  form  of  this 
statement  appears  in  the  first  head-note  in  Allen  v.  Flood,  as  reported 
in  [1898]  A.  C.  1,  as  follows:  "  An  act  lawful  in  itself  is  not  con- 
verted by  a  malicious  or  bad  motive  into  an  unlawful  act  so  as  to 
make  the  doer  of  the  act  liable  to  a  civil  action.^'  If  the  meaning  of 
this  and  similar  expressions  is  that  where  a  person  has  the  lawful 
right  to  do  a  thing  irrespective  of  his  motive,  his  motive  is  immaterial 
the  proposition  is  a  mere  truism.  If,  however,  the  meaning  is  that 
where  a  person,  if  actuated  by  one  kind  of  a  motive,  has  a  lawful  right 
to  do  a  thing,  tiie  act  is  lawful  when  done  imder  any  conceivable  mo- 
tive; or  that  an  act  lawful  under  one  set  of  circumstances  is  therefore 
lawftil  under  every  conceivable  set  of  circumstances,  the  proposition 
does  not  commend  itself  to  us  as  either  logically  or  legally  accurate. 

In  so  far  as  a  right  is  lawful,  it  is  lawful,  and  in  many  cases  the 
right  is  so  far  absolute  as  to  be  lawful  whatever  may  be  the  motive  of 
the  actor,  as  where  one  digs  upon  his  own  land  for  water  (Greenleaf 
V.  Francis,  18  Pick.  117),  or  makes  a  written  lease  of  his  land  for  the 
purpose  of  terminating  a  tenancy  at  will  (Groustra  v.  Bom-ges,  141 
Mass.  7),  but  in  many  cases  the  lawfulness  of  an  act  which  causes 
damage  to  another  may  depend  upon  whether  the  act  is  for  justifiable 
cause;  and  this  justification  may  be  found  sometimes  in  the  circum- 
stances under  which  it  is  done  irrespective  of  motive,  sometimes  in 
the  motive  alone,  and  sometimes  in  the  circumstances  and  motive 
combined. 

This  principle  is  of  very  general  application  in  criminal  law,  and 
also  is  illustrated  in  many  branches  of  the  civil  law,  as  in  cases  of 
Ubel  and  of  procuring  a  wife  to  leave  her  husband.  Tasker  v.  Stanley, 
153  Mass.  148,  and  cases  therein  cited.  Indeed  the  principle  is  a 
prominent  feature  imderlying  the  whole  doctrine  of  privilege,  malice, 
and  intent.  See  on  ihis  an  instructive  article  in  8  Harvard  Law 
Review,  1,  where  the  subject  is  considered  at  some  length. 

It  is  manifest  that  not  much  progress  is  made  by  such  general 
statements  as  those  quoted  above  from  Allen  v.  Flood,  whatever  may 
be  their  meaning. 

Still  standing  for  solution  is  the  question,  Under  what  circum- 
stances, including  the  motive  of  the  actor,  is  the  act  complained  of 
lawful,  ^d  to  what  extent  ? 

In  cases  somewhat  akin  to  the  one  at  bar  this  court  has  had  occa- 
sion to  consider  the  question  how  far  acts,  manifestly  coercive  and 
intimidating  in  their  natiu%,  which  cause  damage  and  injury  to  the 
business  or  property  of  another,  and  are  done  with  intent  to  cause 
such  iajury  and  partly  in  reliance  upon  such  coercion,  are  justifiable. 


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CHAP.  Vin.]  PLANT  V.  WOODS  885 

In  Bowen  v.  Matheson,  14  Allen,  499,  it  was  held  to  be  lawful  for 
persons  engaged  in  the  business  of  shipping  seamen  to  combine  to- 
g^ther  into  a  society  for  th^  purpose  of  competing  with  other  persons 
engaged  in  the  same  business,  and  it  was  held  lawful  for  them,  in 
pursuance  of  that  purpose,  to  take  men  out  of  a  ship,  if  men  shipped 
by  a  non-manber  were  in  that  ship;  to  refuse  to  furnish  seamen 
through  a  non-member;  to  notify  the  public  that  they  had  combined 
against  non-manbers,  and  had  "  laid  the  plaintiff  on  the  shelf  '';  to 
notify  the  plaintiff's  customers  and  friends  that  the  plaintiff  could 
not  ship  seamen  for  them;  and  to  interfere  in  all  these  wajrs  with 
the  business  of  the  plaintiff  as  a  shipping  agent,  and  compel  him  to 
abandon  the  same.  The  justification  for  these  acts,  so  injurious  to 
the  business  of  the  plaintiff  and  so  intimidating  in  their  nature,  is 
to  be  foimd  in  the  law  of  competition.  No  legal  right  of  the  plaintiff 
was  infringed  upon,  and,  as  stated  by  Chapman,  J.,  in  giving  the 
opinion  of  the  court  (p.  503),  "  if  their  effect  Js  to  destroy  the  busine&s 
of  shipping-masters  who  are  not  members  of  the  association,  it  is  such 
a  result  as  in  the  competition  of  business  often  follows  from  a  course 
of  proceeding  that  the  law  permits."  The  primary  object  of  the  de-  ^ 
fendants  was  to  build  up  their  own  business,  and  this  they  might 
lawfully  do  to  the  extent  disclosed  in  that  case,  even  to  the  injury  of  I; 
their  rivals. 

Similar  decisions  have  been  made  in  other  courts  where  acts  some- 
what coercive  in  their  nature  and  effect  have  been  held  justifiable 
under  the  law  of  competition.  Mogul  Steamship  Co.  v.  McGregor, 
[1892]  A.  C.  25;  Bohn  Manuf.  Co.  v.  HoUis,  54  Minn.  223;  Macauley 
V.  Tiemey,  19  R.  I.  255. 

On  the  other  hand,  it  was  held  in  Carew  v.  Rutherford,  106  Mass.  1, 
that  a  conspiracy  against  a  mechanic,  —  who  is  under  the  necessity  of 
employing  workmen  in  order  to  carry  on  his  business,  —  to  obtain  a 
sum  of  money  from  him  which  he  is  under  no  legal  obligation  to  pay, 
by  inducing  his  workmen  to  leave  him  or  by  deterring  others  frcm* 
entering  into  his  employ,  or  by  threatening  to  do  this  so  that  he  is 
induced  to  pay  the  money  demanded,  under  a  reasonable  apprehension 
that  he  cannot  carry  on  his  business  without  yielding  to  the  demands, 
is  an  illegal,  if  not  a  criminal  conspiracy;  that  the  acts  done  under  it 
are  illegal,  and  that  the  money  thus  obtained  may  be  recovered  back. 
Chapman,  C.  J.,  speaking  for  the  court,  says  that  there  is  no  doubt 
that,  if  the  parties  imder  such  circumstances  succeed  in  injuring  the 
business  of  tiie  mechanic,  they  are  liable  to  pay  all  the  damages  done 
to  him. 

That  case  bears  a  close  analogy  to  the  one  at  bar.  The  acts  there 
threatened  were  like  those  in  this  case,  and  the  purpose  was,  in  sub- 
stance, to  force  the  plaintiff  to  give  his  work  to  the  defendants,  and 
to  extort  from  him  a  fine  because  he  had  given  some  of  his  work  to 
other  persons. 


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986  PLANT  V.  WOODS  [CHAP.  VIII. 

Without  now  indicating  to  what  extent  workmen  may  combine  and 
in  pmmuknce  of  an  agreement  may  act  by  means  of  strikes  and  boy- 
cotts to  get  the  hours  of  labor  reduced  or  their  wages  increased,  or  to 
procure  from  their  employers  any  other  concession  directly  and  imme- 
diately affecting  their  own  interests,  or  to  help  themselves  in  compe- 
tition with  their  fellow-workmen,  we  think  this  case  must  be  gov- 
erned by  the  principles  laid  down  in  Carew  v.  Rutherford,  vin  supra. 
The  purpose  of  these  defendants  was  to  force  the  plaintiffs  to  join  the 
defendant  association,  and  to  that  end  they  injured  the  plaintiffs  in 
their  business,  and  molested  and  disturbed  them  in  their  efforts  to 
work  at  their  trade.  It  is  true  they  committed  no  acts  of  personal 
violence,  or  of  phjrsical  injiuy  to  property,  although  they  threatened 
to  do  something  which  m^t  reasonably  be  expected  to  lead  to  such 
results.  In  their  threat,  however,  there  was  plainly  that  which  was 
coercive  in  its  effect  upon  the  will.  It  is  not  necessary  that  the  Ub- 
erty  of  the  body  should  be  restrained.  Restraint  of  the  mind,  pro- 
vided it  would  be  such  as  would  be  likely  to  force  a  man  against  his 
will  to  grant  the  thing  demanded,  and  actually  has  that  effect,  is  suffi- 
cient in  cases  like  tiiis.  As  stated  by  Lord  BramweU  in  Regina  v. 
Druitt,  10  Cox  C.  C.  592, 600,  "  No  ri^t  of  property,  or  capital,  .  .  . 
was  so  sacred,  or  so  carefully  guarded  by  the  law  of  this  land,  as  that 
of  personal  Uberty. . . .  That  Uberty  was  not  Uberty  of  the  body  only. 
It  was  also  a  liberty  of  the  mind  and  will;  and  the  Uberty  of  a  man's 
mind  and  will,  to  say  how  he  should  bestow  himself  and  his  means, 
his  talents,  and  his  industry,  was  as  much  a  subject  of  the  law's  pro- 
tection as  was  that  of  his  body.'' 

It  was  not  the  intention  of  the  defendants  to  give  fairly  to  the  em- 
plojrer  the  option  to  employ  them  or  the  plaintiffs,  but  to  compel  the 
latter  against  their  will  to  join  the  association,  and  to  that  end  to  mo- 
lest and  interfere  with  them  in  their  efforts  to  procure  work  by  acts 
and  threats  well  calculated  by  their  coercive  and  intimidating  nature 
to  overcome  the  will. 

The  defendants  might  make  such  lawful  rules  as  they  please  for 
the  regulation  of  their  own  conduct,  but  they  had  no  right  to  force 
other  persons  to  join  them. 

The  necessity  that  the  plaintiffs  should  join  this  association  is  not 
so  great,  nor  is  its  relation  to  the  rights  of  the  defendants,  as  com- 
pared with  the  right  of  the  plaintiffs  to  be  free  from  molestation,  such 
as  to  bring  the  acts  of  the  defendants  under  the  shelter  of  the  prin- 
ciples of  trade  competition.  Such  acts  are  without  justification,  and 
therefore  are  malicious  and  unlawful,  and  the  conspiracy  thus  to  force 
the  plaintiffs  was  unlawful.  Such  conduct  is  intolerable,  and  incon- 
sistent with  the  spirit  of  our  laws. 

The  language  used  by  this  court  in  Carew  v.  Rutherford,  106  Mass. 
1, 15,  may  be  repeated  here  with  emphasis,  as  appUcable  to  this  case: 
"  The  acts  alleged  and  proved  in  this  case  are  peculiarly  offensive  to 


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CHAP.  Vni.]  PLANT  V.  WOODS  987 

the  free  principles  which  prevail  in  this  country;  and  if  such  prac- 
tices could  enjoy  impunity,  they  would  tend  to  establish  a  tyranny  of 
irresponsible  persons  over  labor  and  mechanical  business  which  would 
be  extremely  injurious  to  both."  See,  in  addition  to  the  authorities 
above  cited.  Commonwealth  v.  Hunt,  4  Met.  Ill;  Sherry  v.  Perkins, 
147  Mass.  212, 214;  Vegelahn  v.  Guntner,  167  Mass.  92, 97;  St.  1894, 
c.  508,  §  2;  ^  State  v.  Donaldson,  3  Vroom,  151;  State  v.  Stewart,  59 
Vt.  273;  State  v.  Glidden,  55  Conn.  46;  State  v.  Dyer,  67  Vt.  690; 
Lucke  V,  Clothing  Cutters  &  Trimmers'  Assembly,  77  Md.  396. 

As  the  plaintiffs  have  been  injured  by  these  acts,  and  there  is  reason 
to  believe  that  the  defendants  contemplate  further  proceedings  of  the 
same  kind  which  wiU  be  likely  still  more  to  injure  the  plaintiffs,  a  bill 
in  equity  lies  to  enjoin  the  defendants.  Vegelahn  v.  Guntner,  vbi 
supra. 

Some  phases  of  the  labor  question  have  recently  been  discussed  in 
the  very  elaborately  considered  case  of  Allen  v.  Flood,  vbi  supra. 
Whether  or  not  the  decision  made  therein  is  inconsistent  with  the 
propositions  upon  which  we  base  our  decision  in  this  case,  we  are  not 
disposed,  in  view  of  the  circimistances  imder  which  that  decision  was 
made,  to  foUow  it.  We  prefer  the  view  expressed  by  the  dissenting 
judges,  which  view,  it  may  be  remarked,  was  entertained  not  only  by 
three  of  the  nine  lords  who  sat  in  the  case,  but  also  by  the  great  ma- 
jority of  the  common  law  judges  who  had  occasion  officially  to  express 
an  opinion. 

There  must  be,  therefore,  a  decree  for  the  plaintiffs.  We  think,  how- 
ever, that  the  clause,  "  or  by  causing  or  attempting  to  cause,  any 
person  to  discriminate  against  any  employer  of  members  of  plaintiffs' 
said  association  (because  he  is  such  employer)  in  giving  or  allowing 
the  performance  of  contracts  to  or  by  such  employer,"  is  too  broad 
and  indefinite,  inasmuch  as  it  might  seem  to  include  mere  lawful  per- 
suasion and  other  similar  and  peaceful  acts;  and  for  that  reason,  and 
also  because  so  far  as  respects  unlawful  acts  it  seems  to  cover  only 
such  acts  as  are  prohibited  by  other  parts  of  the  decree,  we  think  it 
should  be  omitted. 

Inasmuch  as  the  association  of  the  defendants  is  not  a  corporation, 
an  injimction  cannot  be  issued  against  it  as  such,  but  only  against  its 
members,  their  agents  and  servants. 

As  thus  modified,  in  the  opinion  of  the  majority  of  the  court,  the 
decree  should  stand.  Decree  accordingly. 

Holmes,  C.  J.  When  a  question  has  been  decided  by  the  court,  I 
think  it  proper,  as  a  general  rule,  that  a  dissenting  judge,  however 
strong  his  convictions  may  be,  should  thereafter  accept  the  law  from 

^  This  section  is  as  follows :  "  No  person  shall,  by  intimidation  or  force,  prevent 
or  seek  to  prevent  a  person  from  entering  into  or  continuing  in  the  employment  of 
any  person  or  corporation." 


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988  PLANT  V.  WOODS  [CHAP.  VIII. 

the  majority  and  leave  the  remedy  to  the  LegisUture,  if  that  body 
sees  fit  to  interfere.  If  the  decision  in  the  present  case  simply  had 
relied  upon  Vegelahn  v.  Quntner,  167  Mass.  92,  I  should  have  hesi- 
tated to  say  anything,  although  I  might  have  stated  that  my  personal 
opinion  had  not  been  weakened  by  the  substantial  agreement  with  my 
views  to  be  found  in  the  judgments  of  the  majority  of  the  House  of 
Lords  in  Allen  v.  Flood,  [1898]  A.  C.  1.  But  much  to  my  satisfaction, 
if  I  may  say  so,  the  court  has  seen  fit  to  adopt  the  mode  ot  approach- 
ing the  question  which  I  beUeve  to  be  the  correct  one,  and  to  open  an 
issue  which  otherwise  I  might  have  thou^t  doeed.  The  difference 
between  my  brethren  and  me  now  seems  to  be  a  difference  of  degree, 
and  the  line  of  reasoning  followed  makes  it  proper  for  me  to  eqdain 
where  the  difference  lies. 

I  agree  that  the  conduct  of  the  defendants  is  actionable  unless  jus- 
tified.  May  V.  Wood,  172  Mass.  11, 14,  and  cases  cited.   I  agree  that 
the  presence  or  absence  of  justification  may  depend  upon  the  object 
of  their  conduct,  that  is,  upon  the  motive  with  which  they  acted. 
Vegelahn  v.  Guntner,  167  MIeum.  92,  105,  106.    I  agree,  for  instance, 
that  if  a  boycott  or  a  strike  is  intended  to  override  the  jurisdiction  of 
the  courts  by  the  action  ot  a  private  association,  it  may  be  illegal. 
Weston  V.  Bamicoat,  175  Mass.  454.   On  the  other  hand,  I  infer  that 
a  majority  of  my  brethren  would  admit  that  a  boycott  or  strike  in- 
tended to  raise  wages  directly  mi^t  be  lawful,  if  it  did  not  embrace 
in  its  scheme  or  intent  violence,  breach  of  contract,  or  other  conduct 
unlawful  on  grounds  independent  of  the  mere  fact  that  the  action  of 
the  defendants  was  combined.   A  sensible  workingman  would  not  con- 
tend that  the  courts  should  sanction  a  combination  for  the  purpose 
of  inflicting  or  threatening  violence  or  the  infraction  of  admitted 
^  rights.    To  come  directly  to  the  point,  the  issue  is  narrowed  to  the 
/^  question  whether,  assuming  that  some  purposes  would  be  a  justifica- 
•  ition,  the  purpose  in  this  case  of  the  threatened  boycotts  and  strikes 
/was  such  as  to  justify  the  threats.    That  purpose  was  not  directly 
;  concerned  with  wages.    It  was  one  degree  more  remote.    The  imme- 
[  diate  object  and  motive  was  to  strengthen  the  defendants'  society  as  a 
,    preliminary  and  means  to  enable  it  to  make  a  better  fight  on  ques- 
tions of  wages  or  other  matters  of  clashing  interests.    I  differ  from 
my  brethren  in  thinking  that  the  threats  were  as  lawful  for  this  pre- 
;   liminary  purpose  as  for  the  final  one  to  which  strengthening  the  union 
I   was  a  means.    I  think  that  unity  of  organization  is  necessary  to  make 
'.   the  contest  of  labor  effectual,  and  that  societies  of  laborers  lawfully 
\  may  employ  in  their  preparation  the  means  which  they  might  use  in 
k  the  final  contest. 

Althou^  this  is  not  the  place  for  extended  economic  discussion, 
and  although  the  law  may  not  always  reach  ultimate  economic  concep- 
tions, I  think  it  well  to  add  that  I  cherish  no  illusions  as  to  the  mean- 
ing and  effect  of  strikes.    While  I  think  the  strike  a  lawful  instrument 


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CHAP.  Vni.]  MARTELL  V.  WHITE  989 

in  the  universal  struggle  of  life,  I  think  it  pure  phantasy  to  suppose 
that  there  is  a  body  of  capital  of  which  labor  as  a  whole  secures  a 
larger  share  by  that  means.  The  annual  product,  subject  to  an  in- 
finitesimal deduction  for  the  luxuries  of  the  few,  is  directed  to  con- 
sumption by  the  multitude,  and  is  consumed  by  the  multitude  always. 
Organization  and  strikes  may  get  a  larger  share  for  the  members  of  an 
organization,  but,  if  they  do,  they  get  it  at  the  expense  of  the  less  or- 
ganized and  less  powerful  portion  of  the  laboring  mass.  They  do  not 
create  sconething  out  of  nothing.  It  is  only  by  divesting  our  minds  of 
questions  of  ownership  and  other  machinery  of  distribution,  and  by 
looking  solely  at  the  question  of  consumption,  —  asking  ourselves 
what  is  the  annual  product,  who  consumes  it,  and  what  changes  would 
or  could  we  make,  —  that  we  can  keep  in  the  world  of  realities.  But, 
subject  to  the  qualifications  which  I  have  expressed,  I  think  it  lawful 
for  a  body  of  workmen  to  try  by  combination  to  get  more  than  they 
now  are  getting,  althou^  they  do  it  at  the  expense  of  their  fellows, 
and  to  that  end  to  strengthen  their  imion  by  the  boycott  and  the 
strike.^ 


MARTELL  v.  WHITE 

SxTFBEifE  Judicial  Court,  Massachusetts,  March  1,  1904. 
Reported  in  185  Maasaehueette  ReporUf  255. 

Tort  for  alleged  conspiracy  to  injxu^  plaintifiTs  business.  In  the 
Superior  Court,  Bishop,  J.,  ordered  a  verdict  for  defendants,  and 
plaintiff  excepted. 

Hammond,  J.  The  evidence  warranted  the  finding  of  the  follow- 
ing facts,  many  of  which  were  not  in  dispute.  The  plaintiff  was  en- 
gaged in  a  profitable  business  in  quarrying  granite  and  selling  the 
same  to  granite  workers  in  Quincy  and  vicinity.  About  January, 
1899,  his  customers  left  him,  and  his  business  was  ruined  through  the 
action  of  the  defendants  and  their  associates. 

The  defendants  were  all  members  of  a  voluntary  association  known 
as  the  Granite  Manufacturers'  Association  of  Quincy,  Mass.,  and  some 

^  In  accord  with  the  prevailing  opinion,  see  Tunstall  v.  Steams  Coal  Co.,  102 
Fed.  808;  Folsom  t^.  Lewis,  208  Mass.  336;  Bumham  v,  Dowd,  217  Mass.  351; 
Fairbanks  v.  McDonald,  219  Mass.  291;  Comellier  v.  Haverhill  Mfr's  Assn,  221 
Mass.  654;  Blanchard  v.  Newark  District  Council,  77  N.  J.  Law,  389;  Ruddy  v. 
United  Joumejrman  Plumbers,  79  N.  J.  Law,  467,  81  N.  J.  Law,  574.  Compare 
Giblan  v.  National  Amalgamated  Union,  [1903]  2  K.  B.  600;  National  Fire  Proof- 
ing Co.  V,  Mason  Builders'  Ass'n,  169  Fed.  259;  Gill  Engraving  Co.  v.  Doerr,  214 
Fed.  111. 

CarUray  Kemp  v.  Division  No.  241,  255  HI.  213. 

Purpose  of  gaining  control  of  the  labor  market.  New  England  Cement  Co.  v. 
McGivem,  218  Mass.  198;  Jacobs  v.  Cohen,  183  N.  Y.  207;  McCord  v,  Thompson 
Starrett  Co^  129  App.  Div.  130;  Schwarcz  v.  International  Union,  68  Misc.  528; 
Newton  v.  Erickson,  70  Misc.  291. 

Compare  Reynolds  v.  Davis,  198  Mass.  294. 


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990  MARTELL  V.  WHITE  [CHAP.  VIH. 

of  them  were  on  the  executive  committee.  The  association  was  com- 
posed of  "  such  individuals,  firms,  or  corporations  as  are,  or  are  about 
to  become  manufacturers,  quarriers,  or  polishers  of  granite."  There 
was  no  constitution,  and,  while  there  were  by-laws,  still,  except  as 
hereinafter  stated,  there  was  in  them  no  statement  of  the  objects  for 
which  the  association  was  formed.  The  by-laws  provided  among  other 
things  for  the  admission,  suspension  and  expulsion  of  members,  the 
election  of  ofl&cers,  including  an  executive  committee,  and  defined  the 
respective  powers  and  duties  of  the  oflScers.  One  of  the  by-laws  read 
as  follows:  "  For  the  purpose  of  defraying  in  part  the  expense  of  the 
maintenance  of  this  organization,  any  member  thereof  having  busi- 
ness transactions  with  any  party  or  concern  in  Quincy  or  its  vicinity, 
not  members  hereof,  and  in  any  way  relating  to  the  cutting,  quarryii^, 
polishing,  buying  or  selling  of  granite  (hand  polishers  excepted),  shall 
for  each  of  said  transactions  contribute  at  least  $1  and  not  more  than 
$500.  The  amount  to  be  fixed  by  the  association  upon  its  determining 
the  amoimt  and  nature  of  said  transaction." 

Acting  imder  the  by-laws,  the  associaticm  investigated  charges 
which  were  made  against  several  of  its  members  that  they  had  pur- 
chased granite  from  a  party  "  not  a  member  "  of  the  association.  The 
charges  were  proved,  and  under  the  section  above  quoted  it  was  voted 
that  the  offending  parties  "  should  respectively  contribute  to  the  funds 
of  the  association  "  the  simis  named  in  the  votes.  These  sums  ranged 
from  $10  to  $100.  Only  the  contribution  of  $100  has  been  paid,  but  it 
is  a  fair  inference  that  the  proceedings  to  collect  the  others  have  been 
delayed  only  by  reason  of  this  suit.  The  party  "  not  a  member  "  was 
the  present  plaintiff,  and  the  members  of  the  association  knew  it. 
Most  of  the  customers  of  the  plaintiff  were  members  of  the  association, 
and  after  these  proceedings  they  declined  to  deal  with  him.  This  ac- 
tion on  their  part  was  due  to  the  course  of  the  association  in  com- 
pelling them  to  contribute  as  above  stated,  and  to  their  fear  that  a 
similar  vote  for  contribution  would  be  passed  should  they  continue  to 
trade  with  the  plaintiff. 

The  jury  might  properly  have  foimd  also  that  the  euphemistic  ex- 
pression *'  shall  contribute  to  the  fimds  of  the  association  "  contained 
an  idea  which  could  be  more  tersely  and  accurately  expressed  by.  the 
phrase  "  shall  pay  a  fine,"  or,  in  other  words,  that  the  plain  intent  of 
the  section  was  to  provide  for  the  imposition  upon  those  who  came 
within  its  provisions  of  a  penalty  in  the  nature  of  a  substantial  fine. 
The  bill  of  exceptions  recites  that  "there  was  no  evidence  of  threats 
or  intimidation  practiced  upon  the  plaintiff  himself,  and  the  acts 
complained  of  were  confined  to  the  action  of  the  society  upon  its  own 
members."  We  imderstand  this  statement  to  mean  simply  that  the 
acts  of  the  association  concerned  only  such  of  the  plaintiff's  cus- 
tomers as  were  members,  and  that  no  pressure  was  brought  to  bear 
upon  the  plaintiff  except  such  as  fairly  resulted  from  action  upon  his 


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CHAP.  VIII.  J  MARTELL  V.  WHITE  991 

customers.  While  it  is  true  that  the  by-law  was  not  directed  expressly 
against  the  plaintiff  by  name,  still  he  belonged  to  the  class  whose  busi- 
ness it  was  intended  to  affect,  and  the  proceedings  actually  taken  were 
based  upon  transactions  with  him  alone,  and  in  that  way  were  directed 
against  his  business  alone.  It  was  the  intention  of  the  defendants  to 
withdraw  his  customers  from  him,  if  possible,  by  the  imposition  of 
fines  upon  them,  with  the  knowledge  that  the  result  would  be  a  great 
loss  to  the  plaintiff.  The  defendants  must  be  presumed  to  have  in- 
tended the  natural  result  of  their  acts. 

Here,  then,  is  a  clear  and  deliberate  interference  with  the  business 
of  a  person  with  the  intention  of  causing  damage  to  him  and  ending 
in  that  result.  The  defendants  combined  and  conspired  together  to 
ruin  the  plaintiff  in  his  business,  and  they  accomplished  their  purpose. 
In  all  this  have  they  kept  within  lawful  boimds  ?  It  is  elemental  that 
the  imlawfuhiess  of  a  conspiracy  may  be  foimd  either  in  the  end 
sought  or  the  means  to  be  used.  If  either  is  unlawful  within  the  mean- 
ing of  the  term  as  applied  to  the  subject,  then  the  conspiracy  is  unlaw- 
ful. It  becomes  necessary,  therefore,  to  examine  into  the  nature  of  the 
conspiracy  in  this  case,  both  as  to  the  object  sought  and  the  means 
used. 

The  case  presents  one  phase  of  a  general  subject  which  gravely  con- 
cerns the  interests  of  the  business  world  and  indeed  those  of  all  or- 
ganized society,  and  which  in  recent  years  has  demanded  and  received 
great  consideration  in  the  courts  and  elsewhere.  Much  remains  to  be 
done  to  clear  the  atmosphere,  but  some  things  at  least  appear  to  have 
been  settled,  and  certainly  at  this  stage  of  the  judicial  inquiry  it  can- 
not be  necessary  to  enter  upon  a  course  of  reasoning  or  to  cite  authori- 
ties in  support  of  the  proposition  that  while  a  person  must  submit  to 
competition  he  has  the  right  to  be  protected  from  malicious  interfer- 
ence with  his  business.  The  rule  is  well  stated  in  Walker  v.  Cronin, 
107  Mass.  555, 564,  in  the  following  langua^:  "  Every  one  has  a  right 
to  enjoy  the  fruits  and  advantages  of  his  own  enterprise,  industry, 
skin  and  credit.  He  has  no  right  to  be  protected  against  competition; 
but  he  has  a  right  to  be  free  from  malicious  and  wanton  interference, 
disturbance  or  annoyance.  If  disturbance  or  loss  come  as  a  result  of 
competition,  or  the  exercise  of  like  rights  by  others,  it  is  damnum 
absque  injuria,  unless  some  superior  right  by  contract  or  otherwise  is 
interfered  with.  But  if  it  come  from  the  merely  wanton  or  malicious 
acts  of  others,  without  the  justification  of  competition  or  the  service 
of  any  interest  or  lawful  pvirpose,  it  then  stands  upon  a  different 
footing." 

In  a  case  like  this,  where  the  injury  is  intentionally  inflicted,  the 
crucial  question  is  whether  there  is  justifiable  cause  for  the  act.  If 
the  injury  be  inflicted  without  just  cause  or  excuse,  then  it  is  action- 
able. Bowen,  L.  J.,  in  Mogul  Steamship  Co.  v.  McGregor,  23  Q.  B. 
D.  598,  613;  Plant  v.  Woods,  176  Mass.  492.    The  justification  must 


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992  MAETELL  V.  WHITE  [CHAP.  Vin. 

be  as  broad  as  the  act  and  must  cover  not  only  the  motive  and  the 
purpose,  or  in  other  words  the  object  sought,  but  also  the  means  used. 
Tlie  defendants  contend  that  both  as  to  object  and  means  they  are 
justified  by  the  law  applicable  to  business  competition.    In  consider- 
ing this  defence  it  is  to  be  remembered,  as  was  said  by  Bowen,  L.  J., 
m  Mogul  Steamship  Ck).  v.  McGregor,  L.  R.  23  Q.  B.  D.  598, 611,  that 
there  is  presented  "  an  apparent  conflict  or  antimony  between  two 
fights  that  are  equally  r^arded  by  the  law  —  the  right  of  the  plain- 
tiff to  be  protected  in  the  legitimate  exercise  of  his  trade  and  the  right 
pf  the  defendants  to  carry  on  their  business  as  seems  best  to  them, 
provided  they  commit  no  wrong  to  others."    Here,  as  in  most  cases 
where  there  is  a  conflict  between  two  important  principles,  either  of 
which  is  sound  and  to  be  sustained  within  proper  bounds,  but  each 
of  which  must  finally  yield  to  some  extent  to  the  other,  it  frequently 
is  not  possible  by  a  general  formula  to  mark  out  the  dividing  line 
with  reference  to  every  conceivable  case,  and  it  is  not  wise  to  attempt 
it.    The  best  and  only  practicable  course  is  to  consider  the  cases  as 
']  they  arise,  and,  bearing  in  mind  the  grounds  upon  which  the  sound- 
^  ness  of  each  principle  is  supposed  to  rest,  by  a  process  of  elimination 
'   and  comparison  to  establish  points  through  which  at  least  the  line 
must  run  and  beyond  which  the  party  charged  with  trespass  shall  not 
ll  be  allowed  to  go. 

While  the  pmpose  to  injure  the  plaintiff  appears  clearly  enough,  the 
object  or  motive  is  left  somewhat  obscure  upon  the  evidence.  The 
association  had  no  written  constitution,  and  the  by-laws  do  not  ex- 
pressly set  forth  its  objects.  It  is  true  that  from  the  by-laws  it  appeare 
that  none  but  persons  engaged  in  the  granite  business  can  be  members, 
and  that  a  member  transacting  any  business  of  this  kind  with  a  person 
not  a  member  is  liable  to  a  fine;  from  which  it  may  be  inferred  that 
it  is  the  idea  of  the  members  that  for  the  protection  of  their  business 
it  would  be  well  to  confine  it  to  transactions  among  themselves,  and 
that  one  at  least  of  the  objects  of  the  association  is  to  advance  the  in- 
terests of  the  members  in  that  way.  The  oral  testimony  tends  to  show 
that  one  object  of  the  association  is  to  see  that  agreements  made  be- 
tween its  members  and  their  employees  and  between  this  association 
and  similar  associations  in  the  same  line  of  business  be  kept  and ''  lived 
up  to."  Whether  this  failure  to  set  out  fully  in  writing  the  objects  is 
due  to  any  reluctance  to  have  them  clearly  appear  or  to  some  other 
cause,  is  of  course  not  material  to  this  case.  The  result,  however,  is 
that  its  objects  do  not  so  clearly  appear  as  might  be  desired;  but  in 
view  of  the  conclusion  to  which  we  have  come  as  to  the  means  used, 
it  is  not  necessary  to  inquire  more  closely  as  to  the  objects.  It  may  be 
assumed  that  one  of  the  objects  was  to  enable  the  members  to  compete 
more  successfully  with  others  in  the  same  business,  and  that  the  acts 
of  which  the  plaintiff  complains  were  done  for  the  ultimate  protection 
and  advancement  of  their  own  business  interests,  with  no  intention  or 


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CHAP.  VIII.]  MARTELL  V.  WHITE  993 

desire  to  injure  the  plaintiff  except  so  far  as  such  injury  was  the  neces- 
sary result  of  measures  taken  for  their  own  interests.  If  that  was  true, 
then  so  far  as  respects  the  end  sought  the  conspiracy  do^  not  seem  to 
have  been  illegal. 

The  next  question  is  whether  there  is  anything  unlawful  or  wrong- 
ful in  the  means  used  as  applied  to  the  acts  in  question.  Nothing 
need  be  said  in  support  of  the  general  right  to  compete.  To  what 
extent  combination  may  be  allowed  in  competition  is  a  matter  about 
which  there  is  as  yet  much  conflict,  but  it  is  possible  that  in  a  more 
advanced  stage  of  the  discussion  the  day  may  come  when  it  will  be 
more  clearly  seen  and  will  more  distinctly  appear  in  the  adjudication 
of  the  courts  than  as  yet  has  been  the  case;  tiiat  the  proposition  that"^ 
what  one  man  lawfully  can  do  any  number  of  men  acting  together  by  ^ 
combined  agreement  lawfully  may  do,  is  to  be  received  with  newly  I 
disclosed  qualifications  arising  out  of  the  changed  conditions  of  civi-  v 
lized  life  and  of  the  increased  facility  and  power  of  organized  com- 
bination, and  that  the  difference  between  the  power  of  individuals 
acting  each  according  to  his  own  preference  and  that  of  an  organized 
and  extensive  combination  may  be  so  great  in  its  effect  upon  public 
and  private  interests  as  to  cease  to  be  simply  one  of  degree  and  to^J' 
reach  the  dignity  of  a  difference  in  kind.  Indeed,  in  the  language  of  ^ 
Bowen,  L.  J.,  in  the  Mogul  Steamship  case,  vbi  supra,  page  616:  "  Of 
the  general  proposition  that  certain  kinds  of  conduct  not  criminal  in 
one  individual  may  become  criminal  if  done  by  combination  among 
several,  there  can  be  no  doubt.  The  distinction  is  based  on  sound 
reason,  for  a  combination  may  make  oppressive  or  dangerous  that 
which  if  it  proceeded  only  from  a  single  person  would  be  otherwise, 
and  the  very  fact  of  the  combination  may  show  that  the  object  is 
simply  to  do  harm,  and  not  to  exercise  one's  own  just  rights."  See  also 
opinion  of  Stirling,  L.  J.,  in  Giblan  v.  National  Amalgamated  Labor- 
ers' Union,  [1903]  2  K.  B.  600,  621.  Speaking  generally,  however, 
competition  in  business  is  permitted,  althou^  frequently  disastrous 
to  those  engaged  in  it.  It  is  always  selfish,  often  shi^,  and  sometimes 
deadly.  Conspicuous  illustrations  of  the  destructive  extent  to  which 
it  may  be  carried  are  to  be  foimd  in  the  Mogul  Steamship  case  above 
cited,  and  in  Bowen  v.  Matheson,  14  Allen,  499.  The  fact  therefore 
that  the  plaintiff  was  vanquished  is  not  enough,  provided  that  the  con- 
test was  carried  on  within  the  rules  allowable  in  such  warfare. 

It  is  a  ri^t,  however,  which  is  to  be  exercised  with  reference  to 
the  existence  of  a  similar  right  on  the  part  of  others.  The  trader  has 
not  a  free  lance.  He  may  fight,  but  as  a  soldier,  not  as  a  guerilla.  The 
right  of  competition  rests  upon  the  doctrine  that  the  interests  of  the 
great  public  are  best  subserved  by  permitting  the  general  and  natm^l 
laws  of  business  to  have  their  full  and  free  operation,  and  that  this 
•  end  is  best  attained  when  the  trader  is  allowed  in  his  business  to  make 
free  use  of  these  Jaws.    He  may  praise  his  wares,  may  offer  more  ad- 


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994  MARTELL  V.  WHITE  [CHAP.  VIII. 

vantageous  terms  than  his  rival,  may  sell  at  less  than  cost,  or,  in  the 
words  of  Bowen,  L.  J.,  in  the  Mogul  Steamship  case,  vbi  supra,  may 
adopt  "  the  expedient  of  sowing  one  year  a  crop  of  apparently  unfruit- 
ful prices  in  order  by  driving  competition  away  to  realize  a  fuller 
harvest  of  profit  in  the  future.''  In  these  and  many  other  obvious 
ways  he  may  secure  the  customers  of  his  rival,  and  build  up  his 
own  business  to  the  destruction  of ,  that  of  others,  and  so  long  as  he 
keeps  within  the  operation  of  the  laws  of  trade  his  justification  is 
complete. 

But  from  the  very  nature  of  the  case  it  is~  manifest  that  the  rij^t 
of  competition  furnishes  no  justification  for  an  act  done  by  the  use  of 
means  which  in  their  nature  are  in  violation  of  the  principle  upon 
which  it  rests.  The  weapons  used  by  the  trader  who  reUes  upon  this 
light  for  justification  must  be  those  furnished  by  the  laws  of  trade, 
or  at  least  must  not  be  inconsistent  with  their  free  operation.  No 
man  can  justify  an  interference  with  another  man's  business  through 
fraud  or  misrepresentation,  nor  by  intimidation,  obstruction  or  moles- 
tation. In  the  case  before  us  the  members  of  the  association  were  to 
be  held  to  the  policy  of  refusing  to  trade  with  the  plaintiff  by  the  im- 
position of  heavy  fines,  or  in  other  words  they  were  coerced  by  actual 
Or  threatened  injury  to  their  property.  It  is  true  that  one  may  leave 
the  association  if  he  desires,  but  if  he  stays  in  it  he  is  subjected  to  the 
coercive  effect  of  a  fine  to  be  determined  and  enforced  by  the  majority. 
This  method  of  procedure  is  arbitrary  and  artificial,  and  is  based  in 
no  respect  upon  the  grounds  upon  which  competition  in  business  is 
permitted,  but  on  the  contrary  it  creates  a  motive  for  business  action 
inconsistent  with  that  freedom  of  choice  out  of  which  springs  the  bene- 
fit of  competition  to  the  public,  and  has  no  natural  or  logical  relation 
to  the  grounds  upon  which  the  right  to  compete  is  based.  Such  a 
method  of  influencing  a  person  may  be  coercive  and  illegal.  Carew  v. 
Rutherford,  106  Mass.  1. 

Nor  is  the  nature  of  the  coercion  changed  by  the  fact  that  the  per- 
sons fined  were  members  of  the  association.  The  words  of  Munson, 
J.,  in  Boutwell  v.  Marr,  71  Vt.  1,  9,  are  applicable  here:  "  The  law 
qannot  be  compelled  by  any  initial  agreement  of  aCn  associate  member 
to  treat  him  as  one  having  1:10  choice  but  that  of  the  majority,  nor  as 
a  willing  participant  in  whatever  action  may  be  taken.  The  volun- 
tary acceptance  of  by-laws  providing  for  the  imposition  of  coercive 
fines  does  not  make  them  legal  and  collectible,  and  the  standing  threat 
of  their  imposition  may  properly  be  classed  with  the  ordinary  threats 
of  suits  upon  groundless  claims.  The  fact  that  the  relations  and  proc- 
esses deemed  essential  to  a  recovery  are  brought  within  the  member- 
ship and  proceedings  of  an  organized  body  cannot  change  the  result. 
The  law  sees  in  the  membership  of  an  association  of  this  character  both 
the  authors  of  its  coercive  system  and  the  victim  of  its  unlawful  pres- 
sure.  If  this  were  not  so^  men  could  deprive  their  fellows  of  establiished 


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CHAP.  Vni.]  MAKTELL  V.  WHTEB  995 

rights,  and  evade  the  duty  of  compensation,  simply  by  working 
through  an  association." 

In  view  of  the  considerations  upon  which  the  right  of  competition 
is  based,  we  are  of  opinion  that  as  against  the  plaintiff  the  defendants 
have  failed  to  show  that  the  coercion  or  intimidation  of  the  plaintiff's 
customers  by  means  of  a  fine  is  justified  by  the  law  of  competition. 
The  ground  of  the  justification  is  not  broad  enough  to  cover  the  acts 
of  interference  in  their  entirety,  and  the  interference  being  injurious 
and  unjustifiable  is  imlawful. 

We  do  not  mean  to  be  understood  as  saying  that  a  fine  is  of  itself 
necessarily  or  even  generally  an  illegal  implement.  In  many  cases 
it  is  so  slight  as  not  to' be  coercive  in  its  nature;  in  many  it  serves  a 
useful  purpose  to  call  the  attention  of  a  member  of  an  organization  to 
the  fact  of  the  infraction  of  some  innocent  regulation;  and  in  many 
it  serves  as  an  extra  incentive  to  the  performance  of  some  absolute 
duty  or  the  assertion  of  some  absolute  right.  But  where,  as  in  the 
case  before  us,  the  fine  is  so  large  as  to  amoimt  to  moral  intimidation 
or  coercion,  and  is  used  as  a  means  to  enforce  a  right  not  absolute  in 
its  nature  but  conditional,  and  is  inconsistent  with  those  conditions 
upon  which  the  right  rests,  then  the  coercion  becomes  unjustifiable 
and  taints  with  illegality  the  act. 

The  defendants  strongly  rely  upon  Bowen  v.  Matheson,  14  Allen, 
499;  Mogul  Steamship  Ck).  v.  McGregor,  [1892]  A.  C.  25;  Bohn 
Mfg.  Co.  V.  HoUis,  54  Minn.  223;  Macauley  Bros.  v.  Tiemey,  19  R.  I. 
255,  and  Cote  v.  Murphy,  159  Penn.  St*  420.  In  none  of  these  cases 
was  there  any  coercion  by  means  of  fines  upon  those  who  traded  with 
the  plaintiff.  Inducements  were  held  out,  but  they  were  such  as  are 
naturally  incident  to  competition,  for  instance,  more  advantageous 
terms  in  the  way  of  discounts,  increased  trade,  and  otherwise.  In  the 
Minnesota  case  there  was  among  the  rules  of  the  association  a  clause 
requiring  the  plaintiff  to  pay  10  per  cent,  but  the  propriety  or  the 
legality  of  that  provision  was  not  involved.  In  Bowen  v,  Matheson, 
it  is  true  that  the  by-laws  provided  for  a  fine,  but  the  declaration  did 
not  charge  that  any  coercion  by  means  of  a  fine  had  been  used.  A 
demurrer  to  the  declaration  was  sustained  upon  the  ground  that  there 
was  no  sufficient  allegation  of  an  illegal  act.  The  only  allegation 
which  need  be  noticed  here  was  that  the  defendants  "  did  prevent  men 
from  shipping  with  "  the  plaintiff,  and  as  to  this  the  court  said :  "This 
might  be  done  in  many  ways  which  are  legal  and  proper,  and  as  no 
illegal  methods  are  stated  the  allegation  is  bad."  This  comes  far  short 
of  sustaining  the  defendants  in  their  course  of  coercion  by  means  of 
fines.  As  to  the  other  cases  cited  by  the  defendant  it  may  be  said 
that,  while  bearing  upon  the  general  subject  of  which  the  present  case 
presents  one  phase,  they  are  not  inconsistent  with  the  conclusion  to 
which  we  have  come.  Among  the  authorities  bearing  upon  the  general 
subject  and  having  some  relation  to  the  questions  involved  in  this 


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996  PICKE3TT  V.  WALSH  [CHAP.  Vin. 

case,  see,  in  addition  to  those  hereinbefore  cited,  Slaughter-House 
Cases,  16  Wall.  116;  United  States  v.  Addystone,  175  U.  S.  211; 
Doremus  v.  Hennessy,  176  111.  608;  Inter-Ocean  Pub.  Co.  v.  Asso- 
ciated Press,  184  111.  438;  State  v.  Stewart,  59  Vt.  273;  Olive  v.  Van 
Patten,  7  Tex.  Civ.  App.  630;  Barr  v.  Essex  Trades  Council,  53  N.  J. 
Eq.  101;  Jackson  v.  Stanfield,  137  Ind.  592;  Bailey  v.  Master  Plumb- 
ers, 103  Tenn.  99;  Brown  v,  Jacobs  Pharmacy  Co.,  115  Ga.  429; 
Mogul  Steamship  Co.  v.  McGregor,  15  Q.  B.  D.  476;  s.  c.  21  Q.  B.  D. 
544;  s.  c.  23  Q.  B.  D.  598;  s.  c.  [1892]  A.  C.  25. 

For  the  reasons  above  stated  a  majority  of  the  court  are  of  opinion 
that  the  case  should  have  been  submitted  to  the  jury. 

-  Exceptions  sustained.^ 


PICKETT  V.  WALSH 

SxTFBBMB  Judicial  Court,  Massachusetts,  October  16, 1906. 

Reported  in  192  MaasachttaeUa  Reports,  572 

The  plaintiffs  were  brick  and  stone  "  pointers."  The  defendants  were 
officers  and  members  of  bricklayers'  unions  and  stonemasons'  unions.' 

One  ground  of  complaint  was  that  the  defendants  prevented  the  employ- 
ment of  the  plaintiffs  as  "pointers  "  by  notifying  contractors  that  they  would 
not  lay  the  bricks  or  do  the  mason  work  on  any  building  unless  they  were  also 
employed  to  do  the  pointing  of  the  brick  and  stone  masonry.  "  The  defend- 
ants in  effect  say  we  want  the  work  of  pointing  the  brick  and  stone  laid  by  us, 
and  you  must  give  us  all  or  none  of  the  work."  •  The  court  held  that  this  con- 
duct, although  disastrous  to  the  i^aintiffs  and  damaging  to  the  building  con- 
tractors, was  justifiable.  ".  .  .  it  was  within  the  rights  oi  these  ukiions  to 
compete  for  the  work  of  doing  the  pointing,  and,  in  the  exercise  of  their  right 
of  competition,  to  refuse  to  lay  bricks  and  set  stone  unless  they  were  given  the 
work  of  pointhig  them  when  laid."  ^ 

The  other  ground  of  action  in  Pickett  v.  Walsh  was  quite  distinct  from  the 
foregoing.  The  firm  of  L.  P.  Soule  &  Son  Company  were  the  general  contrac- 
tors for  the  erection  of  the  Ford  building;  but  they  had  nothing  to  do  with  the 
employment  of  "  pointers."  The  pointing  of  that  building  was  being  done 
under  a  contract  between  the  owners  of  the  building  and  Pickett,  a  pointer 
who  was  one  of  the  plaintiffs.  Other  buildings  were  being  erected  for  other 
owners,  on  which  the  Soule  Company  were  the  general  contractors,  and  as  to 
which  no  complaint  existed  in  reference  to  the  pointing.  The  bricklaying  and 
masonry  on  these  other  buildings  were  being  done  by  members  of  the  defend- 
ants' imion.  The  defendant  officials  induceid  all  the  bricklayers  and  masons 
to  quit  working  for  the  Soule  Company  on  these  other  buildings,  because  that 
company  "  was  doing  work  on  another  building  [the  Ford  building]  in  which 

*  See  majority  and  minority  opinions  in  the  later  case  of  Willcut  &  Sons  Co.  v, 
Driscoll,  200  Mass.  110,  also  Booth  v.  Burgess,  72  N.  J.  Eq.  181.  Compare  Rhodes 
r.  Musicians'  Union,  37  R.  I.  281. 

<  The  following  condensed  statement  is  taken  from  20  Harvard  Law  Review, 
446-^447. 

»  Loring,  J.,  p.  583.  «  Ibid. 


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CHAP.  Vm.]  PICKETT  V.  WALSH  997 

work  was  being  done  by  pointers,  employed  not  by  the  L.  P.  Soule  &  Son  Ck)m- 
pany  but  [by]  the  owners  of  the  building."  The  evident  purpose  was  to  thus 
induce  the  Soule  CJompany  to  exert  pressure  on  the  owners  of  the  Ford  build- 
ing to  discontinue  the  employment  of  the  pointers  (Pickett  et  als.).  The 
court  held  that  this  conduct  was  not  justijBable.  The  decision  is  not  based  on 
the  ground  that  the  defendants  were  intentionally  inducing,  or  attempting  to 
induce,  a  breach  of  contract;  but  on  the  broad  ground  that  the  forcing  a  neu- 
tral third  person  to  exert  a  pressure  on  the  plaintiff's  employer  was  not  a 
lawful  means  of  competition. 

LORING,  J.i 

That  strike  has  an  element  in  it  like  that  in  a  sjonpathetic  strike,  in  a  boy- 
cott, and  in  a  blacklisting,  namely:  It  is  a  refusal  to  work  for  A,  with  whom 
the  strikers  have  no  dispute,  for  the  purpose  of  forcing  A  to  force  B  to  3deld 
to  the  strikers'  demands.  In  the  case  at  bar  the  strike  on  the  L.  P.  Soule  & 
Son  Company  was  a  strike  on  that  contractor  to  force  it  to  force  the  owner  of 
the  Ford  building  to  give  the  woric  of  pointing  to  the  defendant  unions.  That 
passes  beyond  a  case  of  competition  where  the  owner  of  the  Ford  building  is 
left  to  choose  between  the  two  competitors.  Such  a  strike  is  in  effect  com- 
pelling the  L.  P.  Soule  &  Son  Company  to  join  in  a  boycott  on  the  owner  of  the 
Ford  building.  It  is  a  combination  by  the  union  to  obtain  a  decision  in  their 
favor  by  forcing  third  persons  who  have  no  interest  in  the  dispute  to  force  the 
employer  to  decide  the  dispute  in  their  (the  defendant  union's)  favor.  Such  a 
strike  is  not  a  justifiable  interference  with  the  right  of  the  plaintiffs  to  pursue 
their  calling  as  they  think  best.  In  our  opinion  organized  labor's  right  of 
coercion  and  compulsion  is  limited  to  strikes  on  persons  with  whom  the  or- 
ganization has  a  trade  dispute;  or  to  put  it  in  another  way„  we  are  of  the 
opinion  that  a  strike  on  A,  with  whom  the  striker  has  no  trade  dispute^  to 
compel  A  to  force  B  to  3deld  to  the  strikers'  demands,  is  an  unjustifiable  inter- 
ference with  the  rig^t  of  A  to  pursue  his  calling  as  he  thinks  best.' 

*  Only  a  part  of  the  opinion  is  given  (pp.  587-88). 

«  Bossert  v.  Dhuy,  166  App.  D^.  261, 221  N.  Y.  342  Accord.  But  see  Grassi 
Contracting  Co.  v,  Bennett,  160  N.  Y.  Supd.  279. 

In  Bohn  Mfg.  Co.  v,  HoUis,  54  Minn.  223,  "  a  large  number  of  retail  lumber 
dealers  formed  a  volimtary  association,  by  which  they  mutually  agreed  that  they 
would  not  deal  with  any  manufacturer  or  wholesale  dealer  who  should  sell  lumber 
directly  to  consumers  not  dealers,  at  any  point  where  a  member  of  the  association 
was  carrying  on  a  retidl  yard;  and  they  provided  in  their  by-laws  that,  whenever 
any  wholesale  dealer  or  manufacturer  made  any  such  sale,  the  secretary  should 
notify  all  the  members  of  the  fact.  The  plaintiff,  a  wholesaler,  having  made  such 
a  sale  directly  to  a  consumer,  the  secretiury  threatened  to  send  notice  of  the  fact, 
as  provided  m  the  by-4aws,  to  all  the  members  of  the  association."  (This  state- 
ment is  copied  from  17  Green  Bag,  218.  See  also  statement  by  Professor  Lewis, 
44  Am.  L.  Reg.  n.  s.  469.)  The  court  refused  to  grant  an  injimction  against  send- 
ing out  the  notice.  Here  the  retail  dealers  did  not  threaten  to  cease  dealing  with 
any  one  except  their  competitors,  i.  c,  wholesale  dealers  who  should  attempt  to 
sell  directly  to  consumers.  They  used  no  lever  but  their  own  conduct.  They  did 
not  threaten  to  induce  outsiders  to  rdfrain  from  working  for.  or  selling  goods  to, 
the  wholesalers.  And  even  as  to  their  own  conduct,  they  did  not  threaten  to  ab- 
stain from  dealings  with  wholesalers  in  all  matters,  but  only  in  the  purchase  of 
lumber.  Much  less  did  they  threaten  to  abstain  from  dealing  with  persons  who 
dealt  with  the  wholesalers.  In  a  subsequent  case  the  same  comi;  said:  "  It  is  to 
be  noted  that  the  defendants  in  the  Bohn  case  had  similar  legitimate  interests  to 
protect  which  were  menaced  by  the  practice  of  wholesale  dealers  in  selling  lumber 
to  contractors  and  consumers;  and  that  the  defendants'  efforts  to  induce  parties 


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998  BARR  V.  ESSEX  TRADES  COUNCIL  [CHAP.  VHI. 

BARR  V.  THE  ESSEX  TRADES  COUNCIL 
Court  op  Chancery,   New  Jersey,   October   Tebm,    1894. 
Reported  in  63  New  Jersey  Equity  Reports,  101. 

On  order  to  show  cause  why  injunction  should  not  issue.^ 

The  original  complainant  was  the  sole  proprietor  and  publisher  of 
a  daily  morning  newspaper  called  the  "  Newark  Times." 

The  defendants  are  eighteen  bodies  known  as  "  labor  imions,"  em- 
bracing many  trades  in  the  city  of  Newark,  aflSliated  in  a  society  or 
representative  body  known  as  "  Essex  Trades  Council." 

The  Essex  Trades  Coimcil  is  a  volimtary  association,  composed  of 
delegates  chosen  thereto  by  each  of  the  eighteen  defendant  unions. 
Meetings  are  held  weekly.  Every  organization  represented  in  the 
council  is  required  to  make  a  monthly  report  of  imion  purchases,  and 
failing  to  do  so  for  two  consecutive  months,  its  products  are  not  to  be 
considered  as  "  fair." 

A  circular,  issued  by  the  Council  in  1893,  addressed  to  the  public, 
states: — 

**  The  Essex  Trades  Council  has  for  some  time  past  been  concen- 
trating the  trade  of  its  members  and  those  whom  these  could  influence, 
upon  the  goods  made  and  recommended  by  organized  fair  labor,  and 
the  stores  and  places  where  these  goods  are  sold.  The  regular  system 
of  purchase  iteports  from  individual  consumers,  transmitted  through 
their  organization,  places  the  council  in  a  position  to  announce  that  it 
is  already  turning  thousands  of  dollars  of  trade  every  week  away  from 
those  indifferent  to  the  welfare  of  the  worker,  and  into  the  pockets  of 
labor's  proven  friends.  That  these  friends  may  receive  greater  support 
by  being  made  more  readily  known  to  organized  working  men  and 
their  many  sympathizers  among  lovers  of  justice,  together  forming  the 
great  bulk  of  the  consuming  public,  the  Essex  Trades  Council  will 
shortly  issue  a  series  of  cards  for  free  display  in  all  business  establish- 
ments especially  deserving  the  patronage  of  organized  fair  consmners, 
their  families,  associates  and  friends." 

The  plan  of  operation,  as  developed  by  the  papers  and  exhibits  6led 
in  the  cause,  is  that  each  individual  member  of  the  different  imions  is 

not  to  deal  with  ofifending  wholesale  dealers  were  limited  to  the  members  of  the 
association  having  similar  interests  to  conserve,  and  that  there  was  no  agreement 
or  combination  or  attempt  to  induce  other  persons  not  members  of  the  association 
to  withhold  their  patronage  from  such  wholesale  dealers.''  Ertz  v.  Produce  Ex- 
change Co..  79  Minn.  140, 144.  See  also  Jackson  t;.  Stanfield,  137  Ind.  592;  Brown 
».  Jacobs  Pnarmacy  Co.,  115  Ga.  429;  and  other  cases  collected  by  Professor  Wy- 
man,  17  Green  Bag,  210,  222. 

Strike  unless  plaintiff  is  discharged^  as  a  means  toward  better  conditions  in  the 
shop,  see  Minasian  v.  Osborne,  210  Mass.  250. 

Strike  to  get  rid  of  personaUy  dbjectUmable  foreman,  De  Minico  v.  Craig,  207 
Mass.  593. 

1  Statement  abridged.    Portions  of  opinion  omitted. 


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CHAP.  Vin.]  BARB  V.  ESSEX  TRADES  COUNCIL  999 

reqiiired  at  stated  periods  to  fill  out  a  blank  slip  furnished  for  that 
purpose,  stating  the  amount  expended  by  him  in  pm*chase,  the  char- 
acter of  the  articles  bou^t,  and  the  names  of  the  tradesmen  with 
whom  he  has  dealt.  These  cards,  when  filled  in,  are  returned  by  the 
members  to  their  own  imion,  and  by  the  imion  reported  to  the  coun- 
cil. A  failure  by  a  imion  to  so  report  for  two  consecutive  months, 
places  its  products  under  the  ban  of  organized  labor  as  represented  in 
the  council.  These  reports  place  the  trades  council  in  possession  of 
data  as  to  the  amount  of  purchases  by  the  members  of  the  imions,  and 
the  tradesmen  with  whom  their  dealing  is  carried  on,  from  which  its 
officers  are  enabled  to  estimate,  with  some  degree  of  accm^cy,  the 
volume  of  purchases  by  the  members  of  the  several  organizations 
within  a  stated  period  of  time. 

The  next  step  is  an  agreement  in  writing  purporting  to  be  made 
between  the  Essex  Trades  Council  and  a  tradesman,  by  which  the 
latter,  "  in  return  for  the  patronage  of  united  fair  consumers,"  prom- 
ises and  agrees  to  buy  as  consmner,  engage  as  employer,  keep  as  dealer, 
as  exclusively  as  he  can,  such  labor  and  goods  as  may  be  announced 
as  fair  by  a  particular  imion  and  endorsed  by  the  council  of  consumers 
of  the  Essex  Trades  Ck)uncil.  i 

Cards  are  then  issued  to  the  tradesmen,  imder  the  seal  of  the  trades 
council,  addressed  "  to  all  fair  consumers,"  each  certifying  that  the 
person  to  whom  it  is  issued  '^  is  a  fair  consuming  dealer,"  and  is  en- 
titled to  their  fraternal  support  imtil  a  specified  date.  Coupons  are 
annexed  for  certification  by  particular  industries.  These  cards  are  of 
such  size,  color  and  appearance  that,  if  publicly  displayed  in  stores 
or  places  of  business,  they  will  attract  attention. 

There  was  issued,  under  date  of  March  31,  1894,  "  by  the  Essex 
Trades  Coimcil  and  auxiliary  circle  bodies,"  a  small  pamphlet  of  con- 
venient size  to  be  carried  in  the  pocket,  which  is  entitled  "  The  Fair 
List  of  Newark,  N.  J.,"  and  to  be  "  for  the  information  of  people  who 
buy  service  or  product  and  who  have  enterprise  enough  to  seek  to 
place  their  money  where  it  will  do  them  most  good."  It  contains 
names  and  addresses  of  tradesmen  and  persons  in  business,  including 
lawyers,  interspersed  with  items  of  information  and  advice. 


The  plaintiff  Barr  determined  to  employ  ^^  plate  matter ''  in  making 
up  part  of  his  daily  paper.  (This  consists  of  reading  matter  edited, 
set  up  and  stereotyped  in  New  York.)  All  plaintiff's  employees  were 
members  of  the  local  typographical  \mion.  This  union  had  declared 
against  the  use  of  plate  matter  in  the  city  of  Newark,  which  fact  was 
known  to  Mr.  Barr.  Throu^  his  foreman,  he  sought  to  have  this 
resolution  of  the  imion  relaxed  in  favor  of  his  paper,  but  on  its  refusal 
80  to  do  adhered  to  his  determination,  and,  by  letter  dated  March  13, 
1894,  infonned  his  foreman  that  he  would  use  plate  matter  on  and 


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1000  BABR  V.  ESSEX  TRADES  COUNCIL  [CHAP.  VIIL 

after  March  17th,  saying  further,  that,  not  desiring  to  lose  any  of  the 
men  in  his  department,  the  miion  scale  of  wages  would  be  maintained/ 
and  that  he  would  gladly  retain  the  services  of  such  as  might  be  willing 
to  stay.  Some  of  the  employees  determined  to  remidn,  others,  how- 
ever, left  in  consequence  of  his  disregard  of  the  imion's  determination, 
and  the  imion  withdrew  its  endorsement  of  the  newspaper.  The  union 
thereupon,  through  its  delegates,  informed  the  Essex  Trades  Council 
of  this  fact  and  requested  its  assistance.  In  response,  the  council 
appointed  a  committee  in  reference  to  the  controversy,  and,  on  March 
30, 1894,  issued  a  circular  addressed  to  the  public,  which,  after  giving 
its  version  of  the  dispute,  concludes  with  this  appeal:  — 

'' Friends,  one  and  all,  leave  this  coimcil-boycotting  ^Newark 
Times  '  alone.  Cease  bujdng  it!  Cease  handling  it!  Cease  advertis- 
in  it!  Keep  the  money  of  fair  men  moving  only  among  fair  men. 
Boycott  the  boycotter  of  organized  fair  labor." 

This  circular  was  distributed  in  the  city  of  Newark. 

In  April,  1894,  the  trades  council  issued  a  small  four-page  sheet 
entitled  ''  The  Union  Buyer.  Official  bulletin  of  united  fair  custom 
of  Newark  and  vicinity.  Issued  by  the  Essex  Trades  Council."  It 
is  impressed  at  the  heading  with  the  imion  label.  It  purports  to  be 
voliune  I,  number  1,  issued  at  Newark,  N.  J.,  April,  1894.  Its  first 
announcement  is  as  follows :  — 

"  Our  mission  —  To  support  the  supporters  and  boycott  the  boy- 
cotters  of  organized  fair  labor.  To  promote  the  public  welfare  by  the 
difiPusion  of  common  cents,  urging  all  to  carry  these  in  trade  only  to 
those  who  will  return  them  to  the  people  in  the  shape  of  living  wages." 

The  whole  paper  is  devoted  to  the  controversy  between  the  unions 
and  the  "  Newark  Times,"  no  other  object  being  considered.  It  re- 
fers throughout  to  that  paper  either  by  reversing  the  letters  of  the 
name  "  Times  "  as  "  Semit,"  or  by  tmming  the  type  bottom  side  up. 
The  first  article  after  the  declaration  of  its  mission  is  a  statement  from 
Tjrpographical  Union  No.  103,  imder  the  heading  of  "  '  The  Times  ' 
Trouble."  The  only  grievance  stated  against  the  "  Times  "  grows  out 
of  the  use  of  plate  matter,  and  ends  with  "  workingmen  and  adver- 
tisers, remember  that  plate  matter  means  forty-five  cents  a  day,  and 
understand  why  the  '  Newark  Times  '  is  an  imfair  office."  Then  fol- 
low five  colmnns  of  "  Notes  and  Comments."  These  are  all  directed 
to  the  controversy,  and  are  in  vigorous  and  denimciatory  language, 
and  conclude  as  follows :  — 

"  In  conclusion,  the  council  desires  to  st^te  that  the  issue  between 
it  and  the '  Semit '  is  now  wide  open.  It  is  a  fight  between  the '  Semit ' 
and  its  supporters  and  the  council  and  its  supporters.  We  give  the 
great  public  absolute  freedom  in  the  choice  of  its  side,  but  not  a  single 
cent  of  our  money  will  be  knowingly  let  pass  to  any  one  who  buys  the 
*  Semit,'  keeps  the  '  Semit,'  advertises  in  the  *  Semit,'  or  in  any  other 
way  leads  us  to  beUeve  that  a  portion  of  oiur  honestiy-earQed  monqr 


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CHAP,  Vni.]         BABR  V.  ESSEX  TRADES  COUNCIL  1001 

may  find  its  way  into  the  pockets  to  furnish  support  to  the  unfair 
management  of  the  '  Semit '  or  any  of  those  who  have  so  foully 
betrayed  the  cause  of  organized  fair  labor." 

At  the  foot  oi  this  document  is  placed,  in  large  type,  the  request, 
"  When  through  reading,  please  pass  to  your  neighbor." 

This  paper  was  circulated  in  Newark.  There  were  other  publica- 
tions, but  the  defendants  deny  any  responsibility  for  them,  and  there 
is  no  evidence  to  connect  them  with  their  issue  or  circulation. 

Various  labor  unions  represented  in  the  trades  council  then  passed 
a  prepared  set  of  resolutions,  which  were  printed  and  distributed  in 
Newark.  One  of  these  requested  all  enterprising  business  houses  to 
abstain  from  advertising  in  the  "  Times  "  imtil  the  trouble  had  been 
adjusted,  stating  that  hundreds  of  their  friends  had  refused  to  buy  and 
read  the  *'  Times,"  and  that  its  circulation  had  become  considerably 
reduced  because  of  its  allied  unfair  stand.  Another  asked  such 
advertisers  as  had  made  contracts  with  the  "  Times  "  for  definite 
periods,  to  consider  whether  it  would  not  be  far  more  advantageous 
for  them  in  the  end  to  take  out  their  advertisements,  leave  their  space 
entirely  blank  and  pay  the  few  cents  their  contracts  called  for,  tbsxL  to 
jeopardize  thousands  of  dollars  of  trade  that  fair  labor  would  be 
''  compelled  to  withhold  so  long  as  such  advertisements  appeared,  and 
for  an  indefinite  period  thereafter,"  adding  that ''  those  who  now  con- 
tinue to  advertise  in  the  '  Times '  merely  succeed  in  making  them- 
selves conspicuous  as  persons  to  carefully  and  studiously  keep  away 
from." 

These  resolutions  f oimd  their  way  into  the  hands  of  the  advertisers 
in  the  "Times." 

The  various  trades  imions,  aflSliated  in  the  coimcil,  represent,  as  is 
claimed  by  them,  a  purchasing  power  amounting  to  over  $400,000  in 
each  and  every  week.  Owing  to  the  issue  and  distribution  of  the  afore- 
said circular  and  resolutions,  the  individual  members  of  the  imion, 
and  their  friends  and  sympathizers,  withheld  their  patronage  from 
the  "  Newark  Times."  The  circulation  of  the  paper  was  thereby 
considerably  reduced. 

The  issue  and  distribution  of  said  circular  and  resolutions  caused 
certain  persons,  who  had  theretofore  advertised  in  the  "  Times,"  to 
cease  advertising  in  that  paper. 

Gbeen,  V.  C. 

[After  stating  the  testimony  of  Mr.  Beckme3rer,  secretary  of  the 
Essex  Trades  Council,  as  to  the  signification  of  the  word  "  boycott," 
as  used  in  the  circular  and  publications.] 

From  which  it  is  to  be  gathered  that  the  use  of  the  word  "  boycott  " 
in  the  publications,  as  applied  to  the  "  Times,"  would  be  regarded  by 
the  members  of  the  various  imions  to  mean  only  that  they  should  re- 
frain from  trading  or  dealing  with  the  complainant,  and  with  those 


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1002  BABR  V.  ESSEX  TRADES  COUNCIL  [CHAP.  VHI. 

who  oppose  the  organizations  in  their  actions  and  doings  with  refer- 
ence to  the  complainant. 

I  do  not  see  that  this  changes  the  character  of  the  injiuy,  but  even 
if  it  does,  so  far  as  the  members  of  the  organizations  are  concerned, 
the  difficulty  is  that  these  commimications  were  addressed  to  the  pub- 
lic and  indiscriminately  circulated.  They  were  not  intended  only  for 
members  of  the  order  by  whom  a  technical  signification  would  be  given 
to  the  word  "  boycott,"  but  to  the  general  public  who  would  read  them 
and  give  the  word  its  accepted  meaning. 

[After  quoting  various  definitions  of  "  boycott '']  Mr.  Justice  Taft, 
in  Toledo  Co.  v,  Penn.  Co.,  54  Fed.  Rep.  746,  sajrs:  "  As  usually  un- 
derstood a  boycott  is  a  combination  of  many  to  cause  a  loss  to  one 
person  by  coercing  others  against  their  will,  to  withdraw  from  him 
their  beneficial  business  intercourse,  through  threats  that,  unless  those 
others  do  so,  the  many  will  cause  similar  loss  to  them." 

But  the  defendants  insist,  and  coimsel  vigorously  urge,  that  this 
particular  boycott  is  not  open  to  such  adverse  criticism,  because 
"  there  was  no  violence,  intimidation,  coercion  or  threats  used,  and 
that  everything  was  done  in  a  peaceful  and  orderly  manner."  How  far 
is  this  claim  borne  out  by  the  facts  ?  It  is  true,  there  was  no  public 
disturbance,  no  physical  injmy,  no  direct  threats  of  personal  violence 
or  of  actual  attack  on  or  destruction  of  tangible  property  as  a  means  of 
intimidation  or  coercion.  Force  and  violence,  however,  while  they 
may  enter  largely  into  the  question  in  a  criminal  prosecution,  are  not 
necessary  factors  in  the  right  to  a  civil  remedy.  But  even  in  criminal 
law,  I  do  not  understand  that  intimidation,  even  when  a  statutory  in- 
gredient of  crime,  necessarily  presupposes  personal  injury  or  the  fear 
thereof.  The  clear  weight  of  authority  imdoubtedly  is  that  a  man  may 
be  intimidated  into  doing,  or  refraining  from  doing,  by  fear  of  loss 
of  business,  property  or  reputation,  as  well  as  by  dread  of  loss  of  life, 
or  injmy  to  health  or  limb;  and  tJie  extent  of  this  fear  need  not  be 
abject,  but  only  such  as  to  overcome  his  judgment,  or  induce  him  not 
to  do,  or  to  do,  that  which  otherwise  he  would  have  done  or  have  left 
undone. 

There  can  be  no  reasonable  dispute  that  the  whole  proceeding  or 
boycott 'in  this  controversy  is  to  force  Mr.  Barr,  by  fear  of  loss  of 
business,  to  conduct  that  business,  not  according  to  his  own  judgment, 
but  in  accordance  with  the  determination  of  the  typographical  union, 
and,  so  far  as  he  is  concerned,  it  is  an  attempt  to  intimidate  and  coerce. 

Next  as  to  the  members  of  the  various  labor  imions.  According  to 
Mr.  Beckmeyer,  all  the  organizations  represented  in  the  trades  council 
and  the  individual  members  thereof,  in  strict  conformity  with  the  pur- 
pose and  object  for  which  the  said  coimcil  was  organized,  withheld 
their  patronage  from  the  said  newspaper  on  the  mere  announcement 
by  the  typographical  union  to  the  trades  council  that  that  union  had 
withdrawn  its  endorsement  from  the  "  Times."    Why  ?    It  is  said 


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CHAP.  Vin.]  BABR  V.  ESSEX  TRADES  COUNCIL  1003 

that  it  was  only  the  exercise  by  each  person  of  his  right  to  spend  his 
money  as  his  own  will  dictated.  The  fallacy  of  this  is  apparent.  It 
loses  sight  of  the  combination,  the  whole  strength  of  which  lies  in  the 
fact  that  each  individual  has  smrendered  his  own  discretion  and  will 
to  the  direction  of  the  accredited  representative  of  all  the  organiza- 
tions. He  no  longer  uses  his  own  judgment,  but,  by  entering  into  the 
combination,  agrees  to  be  bound  by  its  decree.  As  is  said  in  Temple- 
ton  V.  Russell,  supra, ''  those  men  had  bound  themselves  to  obey,  and 
they  knew  they  had  done  so,  and  that  if  they  did  not  obey  they  would 
be  fined,  or  expelled  from  the  imion  to  which  they  belonged."  It  is 
common  knowledge,  if  indeed  it  does  not  amply  so  appear  by  the 
papers  in  this  case,  that  a  member  of  a  labor  organization  whx)  does  not 
submit  to  the  edict  of  his  union  asserts  his  independence  of  judgment 
and  action  at  the  risk,  if  not  the  absolute  sacrifice,  of  all  association 
with  his  fellow-members.  They  will  not  eat,  drink,  live  or  work  in  his 
company.  Branded  by  the  peculiarly  offensive  epithets  adopted,  he 
must  exist  ostracized,  socially  and  industrially,  so  far  as  his  former 
associates  are  concerned.  Freedom  of  will  under  such  circumstances 
cannot  be  expected. 

Next  as  to  the  advertising  public.  Tradesmen  advertise  in  news- 
papers for  the  sole  purpose  of  drawing  customers  to  their  stores.  An 
authoritative  annoimcement,  not  from  one,  but  from  many  sources, 
that  the  body  of  organized  labor  in  the  city  or  county  representing  a 
purchasing  power  of  $400,000  a  week  would  cease  to  deal  with  those 
whose  advertisements  appeared  in  the  newspaper,  would  have  a  much 
more  deterrent  effect  than  any  threat  of  violence.  To  say  that  this  is 
only  advice,  or  an  intimation,  to  the  advertiser  for  his  guidance  if  he 
sees  fit  to  accept  it,  is  trifling  with  the  language.  Advice,  behind 
which  lurks  the  threat  of  the  withdrawal  of  such  a  volmne  of  busi- 
ness, could  have  no  other  effect  than  to  intimidate  and  coerce,  as  it 
did  in  fact  make  several  change  their  judgment,  which  had  previ- 
ously led  them  to  advertise  in  the  paper.  The  claim  that  this  boycott 
was  attempted  to  be  enforced  without  intimidation  or  coercion  will  not 
bear  the  light  of  examination. 

A  legal  excuse  for  the  action  of  the  defendants  is  next  sought  in  the 
claim  that  the  Essex  Trades  Council  is  a  business  institution,  and  that 
what  it  has  done  has  been  in  prosecution  of  such  business,  seeking,  I 
suppose,  to  bring  the  case  within  the  rule  of  Mogul  Steamship  Co.  v. 
McGregor,  15  Q.  B.  Div.  476;  23  Q.  B.  Div.  598.  That  case  proceeded 
on  the  doctrine  of  a  lawful  competition  in  business,  both  parties  being 
engaged  in  carrying  on  the  same  character  of  business,  and  the  acts 
complained  of  having  been  adopted  for  the  advancement  of  the  de- 
fendant's own  trade,  viz.,  carrying  goods  on  a  steamship  line,  although 
thereby  damage  to  the  other  party  necessarily  ensued. 

I  see  no  similarity  in  the  business  of  these  parties.  That  of  the 
complainant  is  the  publisher  of  a  newspaper.    Members  of  the  typo- 


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1004  PIERCE  V.  stablemen's  union  no.  8760       [CHAP.  VHL 

graphical  union,  and  stereotjrpers'  and  pressmen's  union,  are  skilled 
workmen,  whose  services  mi^t  be  employed  in  such  business,  but 
they  are  not  carrying  on  any  enterprise  in  competition  with  that  of 
the  complainant.  So  far  as  ^e  other  imions  are  concerned,  the  most, 
if  not  all  of  them,  have  no  connection  with  such  trade. 

Neither  does  the  claim  of  the  Essex  Trades  Council,  that  it  is  a 
business  institution,  stand  on  any  firmer  ground. '  The  only  element 
of  business  which  it  is  engaged  in  would  appear  from  the  facts  to  be 
the  furnishing  to  tradesmen  of  printed  cards,  certifying  that  they  are 
proper  persons  for  the  members  of  trades  imions  to  deal  with,  suitable 
to  be  displayed  in  conspicuous  places  in  such  trade^nen's  places  of 
business.  This  was  supplemented  by  the  issue,  under  date  of  March 
31,  1894,  of  the  small  pocket  pamphlet  entitled  "  The  Fair  List  of 
Newark,  N.  J.,"  containing  the  names  and  addresses  of  tradesmen 
and  persons  in  business  in  Newark,  with  items  of  information  and 
advice.  Why  this  is  called  a  business  does  not  appear.  It  is  not  stated 
that  any  compensation  is  either  required  or  received  by  the  trades 
council  from  the  tradespeople  for  granting  or  continuing  those  en* 
dorsements,  but  whether  this  is  so  or  not,  it  is  in  no  sense  a  competing 
business  with  the  publication  of  a  daily  newspaper,  and  ther^ore  does 
not  come  within  liie  principle  of  the  case  referred  to. 

The  order  to  show  cause,  as  far  as  r^tes  to  [eight  specified  organi- 
zations], they  having  all  disclaimed  any  participation  in  the  acts  com- 
plained of,  must  be  discharged,  with  costs.  The  said  order  to  show 
cause,  so  far  as  relates  to  the  other  defendants,  must  be  made  absolute, 
with  costs,  and  an  injunction  may  issue  against  them,  restraining 
them  from  distributing  or  circulating  any  circulars,  printed  resolu- 
tions, bulletins,  or  other  publications  containing  appeals  or  threats 
against  the  ''  Newark  Times,''  or  the  complainants,  its  publishers, 
with  the  design  and  tending  to  interfere  with  their  business  in  publish- 
ing said  paper,  and  from  making  any  threats  or  using  any  intimidation 
to  the  dealers  or  advertisers  in  such  newspaper  tending  to  cause  them 
to  withdraw  their  business  from  such  newspaper.^ 


PIERCE  V.  THE  STABLEMEN'S  UNION  LOCAL  NO.  8760 
Supreme  Court,  California,  July  6,  1909. 

Reported  in  156  California  Reports,  70. 

Henshaw,  J.  The  plaintiff  went  into  equity  seeking  an  injunction 
to  restrain  the  defendants  from  illegal  interference  with  its  business. 
Plaintiff  conducted  a  livery,  board  and  feed  stable  in  the  city  and 
county  of  San  Francisco.    ITie  officers  and  representatives  of  defend- 

*  Gompers  v.  Bucks  Stove  k  Range  Co..  221  U.  S.  418:  Baldwin  v.  Eecanaba 
Dealers*  Aas'n,  165  Mich.  "98;  Fink  v.  Butchers'  Union,  84  N.  J.  Eq.  638;  McCor- 
mick  V,  Local  Unions,  32  Ohio  Cir.  Ct.  R.  166  Accord, 

Compare  Ex  parte  Heffron,  179  Mo.  App.  639. 


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QHAP.  Vin.]       PIEBCE  V.  STABLEMEN's  UNION  NO.  8760  1005 

ant  made  request  of  him  to  "  imionize  "  his  stable  by  discharging  his 
non-union  cjmployees  and  employing  union  men  in  their  places.  Upon 
his  refusal,  a  stnke  of  the  union  men  was  declared.  Following  the 
strike,  a  boycott  was  decreed.  A  patrol  about  plaintiff's  place  of 
business  was  established,  and,  tmder  the  findings,  these  representa- 
tives of  the  defendants,  the  pickets,  "  called  forth  in  loud,  threaten- 
ing, and  menacing  tones  to  the  patrons  and  customers  of  plantiffs  not 
to  patronize  plaintiffs  in  their  said  business;  defendant,  the  Stable- 
men's Union,  through  its  agents  and  representatives,  has  stated  to 
and  threatened  patrons  and  customers  and  other  persons  dealing  with 
plaintiffs  that  if  said  patrons  and  customers  and  other  persons  con- 
tinued to  patronize  and  do  business  with  plaintiffs,  said  Stablemen's 
Union  would  cause  them  respectively  to  be  boycotted  in  their  busi- 
ness." Menacing  terms  and  threatening  language  were  made  use  of 
by  the  agents,  representatives,  and  pickets  of  the  union  toward  the 
employees  of  tiie  plaintiff,  such  as:  "^Unfair  stable;  imion  men  locked 
out  and  non-union  men  put  in;  look  at  this  stable,  the  only  unfair 
stable  on  Market  Street;  the  stable  that  alwajns  was  and  alwajns  will 
be  unfair.  This  is  a  scab  stable.  When  we  catch  you  outside,  we 
will  finish  you.  We  will  get  you  jret.  It  is  a  scab  stable,  full  of  scabs. 
We  will  fix  you  yet.  It  is  a  matter  of  time  when  we  will  get  you  all 
right.  You  will  never  get  out  of  the  stable  alive.  We  will  break  you 
in  half.  We  will  beat  you  to  death.  When  we  catch  you  outside,  we 
will  finish  you."  A  judgment  for  an  injunction  followed  upon  these 
findings,  and  that  judgment  by  its  terms  commanded  the  defendant, 
its  agents  and  employees,  to  desist  and  refrain  ''  from  in  any  wise  in- 
terfering with,  or  harassing,  or  annoying,  or  obstructing  plaintiff  in 
the  conduct  of  the  business  of  their  stable,  known  as  the  Nevada 
Stables  and  situated  at  number  1350  Market  Street,  in  the  city  and 
county  of  San  Francisco;  or  from  in  any  wise  molesting,  interfering 
with,  threatening,  intimidating,  or  harassing  any  employee  or  em- 
ployees of  plaintiffs;  or  from  intimidating,  harassing,  or  interfering 
witi  any  customer  or  customers,  patron  or  patrons  of  plaintiffs  in  con- 
nection with  the  business  of  plaintiffs,  either  by  boycott  or  by  threats 
of  boycott,  or  by  any  other  threats;  or  by  any  kind  of  force,  violence, 
or  intimidation,  or  by  other  imlawful  means,  seeking  to  induce  any 
employee  or  employees  of  plaintiffs  to  withdraw  from  the  service  of 
plaintiffs;  or  by  any  kind  of  violence,  threats,  or  intimidation  induc- 
ing, or  seeking  to  induce,  any  customer  or  customers,  patron  or  pa- 
trons, of  plaintiffs  to  withdraw  their  patronage  or  business  from  them, 
or  from  stationing  or  placing  in  front  of  said  plaintiffs'  place  of  busi* 
ness  any  picket,  or  pickets,  for  the  purpose  of  injuring,  obstructing,  or 
in  any  wise  interfering  with,  the  business  of  plaintiffs,  or  for  the  pur- 
pose of  preventing  any  customer  or  customers,  patron  or  patrons,  of 
plaintiffs  from  doing  business  with  them;  or  from  in  any  other  way 
molesting,  intimidating,  or  coercing,  or  attempt  to  molest  or  intimi- 


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1006         PIERCE  V.  stablemen's  union  no.  8760     [CHAP.  vni. 

date  or  coerce  any  customer,  patron,  or  employee  of  plaintiffs  now  or 
hereafter  dealing  with,  or  any  employee  now  or  hereafter  employed  by, 
or  working  for  plaintiffs  in  their  said  business." 

This  appeal  is  from  the  judgment.  The  finding?  are  not  attacked. 
Certain  objections  to  the  complaint  are  presented  upon  demurrer,  and 
these  may  be  briefly  disposed  of.  The  complaint  is  sufficient  to  in- 
voke the  interposition  of  a  court  of  equity.  It  is  in  this  respect  simi- 
lar to  the  complaint  considered  in  Goldberg-Bowen  Co.  v.  Stablemen's 
Union,  149  Cal.  429.  The  complaint  alleges  specific  acts  calling  for 
preventive  relief,  and  is  not  confined  to  mere  generalities,  as  wafi  the 
case  in  Davitt  v.  American  Bakers'  Union,  124  Cal.  99.  The  fact 
that  certain  of  the  acts  charged  amount  to  crimes  or  threatened  crimes, 
does  not  offer  reason  why  equity  will  refuse  to  restrain  them.  While 
equity  will  not  attempt  to  restrain  the  commission  of  a  crime  as  such, 
the  fact  that  an  act  threatening  irreparable  injury  to  property  rights, 
is  of  itself  criminal,  does  not  deprive  a  court  of  equity  of  its  rij^t  and 
power  to  enjoin  its  commission.  (In  re  Debs,  158  U.  S.  564;  Sherry 
V,  Perkins,  144  Mass.  212;  V^elahn  v.  Guntner,  167  Mass.  92.)  In 
like  manner,  while  equity  will  not  enjoin  against  a  trespass  as  such, 
yet  when  the  acts  committed  and  threatened  are  in  the  nature  of  a 
continuing  trespass,  working  irreparable  injury,  they  will  be  enjoined. 
(Boston  R.  R.  v.  Sullivan,  177  Mass.  230;  Lembeck  v.  Nye,  47  Ohio, 
336.) 

Appellants'  principal  contentions  upon  the  appeal,  however,  are  the 
following:  First,  that,  as  the  controversy  between  these  parties  arises 
from  and  over  a  trade  dispute,  the  court  is  powerless  to  grant  any 
injunction  imder  the  language  of  ''  An  act  to  limit  the  meaning  of  the 
word  '  conspiracy  '  and  also  the  use  of  restraining  orders  and  injunc- 
tions as  applied  to  disputes  between  employers  and  employees  in  the 
State  of  California,  approved  March  20,  1903  "  (Pen.  Code,  page 
581) ;  second,  that  the  boycott  is  a  legal  weapon  in  a  trade  dispute  and, 
therefore,  an  injimction  ^ould  not  issue  to  restrain  its  use  or  threat- 
ened use;  third,  that  "  picketing  "  as  an  adjunct  to  the  boycott  is 
itself  legal  and  may  not  be  forbidden. 

1.  As  to  the  first  of  these  contentions,  this  court  had  occasion  in 
Goldberg,  etc.,  Co.  v.  Stablemen's  Union,  149  Cal.  429,  to  consider  the 
statute  above  referred  to  and  relied  upon  by  appellants,  and  declared 
that  if  the  construction  there  oontended  for  (and  here  contended  for) 
was  the  proper  construction,  this  provision  of  the  court  was  void.  Not 
only  would  it  be  void  as  violative  of  one's  constitutional  right  to  ac- 
quire, possess,  enjoy,  and  protect  property,  but  as  well  would  it  be 
obnoxious  to  the  constitution  in  creating  arbitrarily  and  without  rea- 
son a  class  above  and  beyond  the  law  which  is  applicable  to  all  other 
individuals  and  classes.  It  would  legalize  a  combination  in  restraint 
of  trade  or  commerce,  entered  into  by  a  trades  union,  which  would  be 
illegal  if  entered  into  by  any  other  persons  or  associations.    It  would 


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CHAP.  Vni.]       PIBBCB^.  stablemen's  UNION  NO.  8760  1007 

exempt  trades  unions  from  the  operation  of  the  general  laws  of  the 
land,  under  circimistances  where  the  same  laws  would  operate  against 
all  other  individucJs,  ccunbinations,  or  associations.  It  is  thus  not  only- 
special  legislation,  obnoxious  to  the  constitution  (Art.  IV,  sec.  25, 
subds.  3  and  33),  but  it  still  further  violates  the  constitution  in  at- 
tempting to  grant  privileges  and  immunities  to  certain  citizens  or 
classes  of  citizens  which,  upon  the  same  terms,  have  not  been  granted 
to  all  citizens  (Art.  I,  sec.  21). 

2.  In  considering  ttie  second  proposition,  whether  or  not  a  court  of 
equity  may  enjoin  a  boycott,  the  meaning  of  the  word  is  of  primary 
importance.  It  is  defined  in  4  Am.  &  Eng.  Enc.  of  Law,  2d  ed.,  page 
85,  as  follows: "  The  boycott  is  a  conspiracy,  the  direct  object  of  which 
is  to  occasion  loss  to  the  party  or  parties  against  whom  ttie  conspiracy 
is  directed,  and  the  means  commonly  used  is  the  inducing  of  others 
to  withdraw  from  such  party  or  parties  their  patronage  and  business 
intercourse  by  threats  that,  imless  they  so  withdraw,  the  members  of 
the  combinaton  will  cause,  directly  or  indirectly,  loss  of  a  similar 
character  to  them."  Appellants  annoimce  their  willingness  to  accept 
this  definition,  substituting  the  word  "  confederacy  "  or  "  combina- 
tion "  for  "  conspiracy."  But  the  definition,  even  as  so  amended,  it 
wiU  be  noted  is  not  complete.  The  "  means  commonly  used  "  are 
specified,  but  other  means  may  be  and  frequently  are  emplojred.  A 
boycott  may  adopt  illegal  means  and  thus  become  a  "  conspiracy,"  a 
word  which  imports  illegality;  or  a  boycott  may  employ  l^al  means 
and  methods,  and  thus  be  merely  a  legitimate  combination  by  a  num- 
ber of  men  to  accomplish,  within  the  law,  a  legal  result.  The  crux 
of  the  question  and  Uie  strain  in  every  case  turns,  then,  upon  the 
means  employed.  We  think  that  to-day  no  court  would  question  the 
right  of  an  organized  imion  of  employes,  by  concerted  action,  to  cease 
their  employment  (no  contractual  obligation  standing  in  the  way), 
and  this  action  constitutes  a  '^  strike."  We  think,  moreover,  that  no 
court  questions  the  right  of  those  same  men  to  cease  dealing  by  con- 
certed action,  either  socially  or  by  way  of  business,  with  their  former 
employer,  and  this  latter  act,  in  its  essence,  constitutes  the  "  primary 
boycott."  But  what  acts  organized  labor  may  do,  and  what  means  it 
may  adopt  to  accomplish  its  end,  without  violation  of  the  law,  have 
presented  questions  of  much  nicety,  over  which  the  courts  have 
stood,  and  still  stand,  widely  divided.  It  would  not  be  profitable  to 
discuss  and  analyze  these  widely  divergent  cases.  It  is  sufi&cient  to 
formulate  briefly  the  principles  adopted  in  this  state,  many  of  which 
have  recently  foimd  elaborate  expression  in  the  case  of  Parkinson  v. 
Building  &  Trades  Council  of  Santa  Clara,  36  Cal.  Dec.  445.  The 
right  of  united  labor  to  strike,  in  furtherance  of  their  trade  interests 
(no  contractual  obligation  standing  in  the  way)  is  fully  recognized. 
The  reason  for  the  strike  may  be  based  upon  the  refusal  to  comply 
with  the  employees'  demand  for  the  betterment  of  wages,  conditions, 


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1008        PIERCE  V.  stablemen's  union  no.  8760     [CHAP.  vm. 

hours  of  labor,  the  discharge  of  one  employee,  the  engagement  of 
another  —  any  one  of  the  multifarious  ends  which  in  good  faith  may 
be  believed  to  tend  toward  the  advancement  of  the  emplojrees.  After 
striking,  the  employees  may  engage  in  a  boycott,  as  that  word  is  here 
employed.  As  here  employed  it  means  not  only  the  concerted  right 
to  the  withdrawal  of  social  and  business  intercourse,  but  the  right  by 
all  legitimate  means  of  fair  publication,  and  fair  oral  or  written  per- 
suasion, to  induce  others  interested  in  or  sympathetic  with  their 
cause,  to  withdraw  their  social  intercourse  and  business  patronage 
from  the  employer.  They  may  go  even  further  than  this,  and  request 
of  another  that  he  withdraw  his  patronage  from  the  emplojrer,  and 
may  use  the  moral  intimidation  and  coercion  of  threatening  a  like 
boycott  against  him  if  he  refilse  so  to  do.  This  last  proposition  neces- 
sarily involves  the  bringing  into  a  labor  dispute  between  A  and  B,  C 
who  has  no  difference  with  either.  It  contemplates  that  C,  upon  the 
demand  of  B,  and  imder  the  moral  intimidation  lest  B  boycott  him, 
may  thus  be  constrained  to  withdraw  his  patronage  from  A,  with 
whom  he  has  no  controversy.  This  is  the  "  secondary  boycott,"  the 
legality  of  which  is  vigorously  denied  by  the  English  courts,  the  federal 
coiui;8,  and  by  the  courts  of  many  of  the  states  of  this  nation.  With- 
out presenting  the  authorities,  which  are  multitudinous,  suffice  it  to 
state  the  other  view  in  language  of  the  President  of  the  United  States 
but  recently  uttered:  ''  A  body  of  workmen  are  dissatisfied  with  the 
terms  of  their  emplo3anent.  They  seek  to  ccHnpel  their  employer  to 
come  to  their  terms  by  striking.  They  may  legally  do  so.  The  loss 
and  inconvenience  he  suffers  he  cannot  complain  of.  But  when  they 
seek  to  compel  third  persons,  who  have  no  quarrel  with  Uieir  employer, 
to  withdraw  from  all  association  with  him  by  threats  that,  unless  such 
third  persons  do  so,  the  workmen  will  inflict  similar  injury  on  such 
third  persons,  the  combination  is  oppressive,  involves  duress,  and  if 
injury  results,  it  is  actionable."  (President  Taft,  McClure's  Maga- 
zine, Jime,  1909,  page  204.)  Notwithstanding  the  great  dignity 
which  attaches  to  an  utterance  such  as  this,  which,  as  has  been  said,  is 
but  the  expression  of  numerous  courts  upon  the  subject-matter,  this 
court,  after  great  deliberation,  took  what  it  beUeved  to  be  the  truer 
and  more  advanced  groimd  above  indicated  and  fully  set  forth  in 
Parkinson  v.  Building  &  Trades  Coimcil,  etc.,  supra.  In  this  respect 
this  court  recognizes  no  substantial  distinction  between  the  so-called 
primary  and  secondary  boycott.  Each  rests  upon  the  right  of  the 
union  to  withdraw  its  patronage  from  its  employer  and  to  induce  by 
fair  means  any  and  all  other  persons  to  do  the  same,  and  in  the  exercise 
of  those  means,  as  the  unions  would  have  the  xmquestioned  right  to 
withhold  their  patronage  from  a  third  person  who  continued  to  deal 
with  their  employer,  so  they  have  the  xmquestioned  right  to  notify 
such  third  person  that  they  will  withdraw  their  patronage  if  he  con- 
tinues so  to  deal.   However  opposed  to  the  weight  of  federal  authority 


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CHAP.  VIU.]       PEBBCB  V.  STABLEMBN'S  UNION  NO.  8760  1009 

the  views  of  this  court  are,  that  they  are  not  unique  may  be  noted  by 
reading  National  Protective  Association  v.  Gumming,  170  N.  Y.  315; 
Lindsay  v.  Montana  Federation  of  Labor,  (Mont.)  18  L.  R.  A.  (n.  s.) 
707,  where  the  highest  courts  ot  those  states  formulate  and  adopt  like 
principles. 

It  has  been  said  that  it  is  important  to  any  correct  understanding 
of  or  adjudication  upon  such  questions  that  a  definition  of  the  word 
"  boycott  "  should  be  first  stated.  Thus,  to  say  that  a  boycott  is  a 
"  conspiracy  "  immediately  impUee  illegality,  and  puts  the  conduct  of 
the  boycotters  under  the  ban  of  the  law.  So  also  does  the  definition 
which  describes  boycotting  as  ''  illegal  coercion  "  designed  to  accom- 
plish a  certain  end.  As  we  have  undertaken  to  define  boycott,  it  is  an 
organized  effort  to  persuade  or  coerce,  which  may  be  legal  or  illegal, 
according  to  the  means  employed.  In  other  jurisdictions  where  a  defi- 
nitbn  is  given  to  a  boycott  which  imports  illegality  the  injunction 
will  of  course  lie  against  boycotting  as  such.  In  this  state  the  inj\mc« 
tion  will  issue,  depending  upon  the  circumstances  whether  the  means 
^nployed,  <^  threatened  to  be  employed,  are  legal  or  illegal. 

3.  We  are  thus  brought  to  consider  the  method  of  ''  picketing,"  the 
use  of  which  appdlants  contend  is  a  legal  weapon  in  their  hands.  So 
far  in  this  discussion  we  have  dealt  exclusively  with  the  respective 
rii^ts  of  the  emi^oyer  and  of  the  em^doyee.  There  are  other  parties, 
however,  whose  rights  are  entitled  to  equal  consideration,  and  whose 
rights  always  become  involved  and  imperilled  when  picketing  is 
adopted  as  a  coercive  measure  in  aid  of  a  boycott. 

If  the  strikers  have  the  right,  as  above  indicated,  to  withdraw 
patronage  themselves  and  by  fair  publication,  written  and  oral  per- 
suasion to  induce  others  to  join  in  their  cause,  and  finally  by  threat 
of  like  boycott  to  coerce  oth^  into  so  doing,  their  rights  go  no  further 
tJian  this.  It  is  the  equal  right  of  the  emplo3^er  to  insist  before  the 
law  that  his  business  shall  be  subject  at  the  hands  of  the  strikers  to 
no  other  detriment  than  that  which  follows  as  a  oonsequenoe  of  the 
legal  acts  of  the  strikers  so  above  set  forth.  It  is  not  to  be  forgotten 
that  when  the  employees  have  struck,  they  occupy  no  contractual  rela- 
tionship whatsoever  to  their  fonner  employer,  and  have  no  right  to 
coerce  him  or  attempt  to  coerce  him  by  the  employment  of  any  other 
means  than  those  which  are  equally  open  to  any  other  individual  or 
association  ot  individuals.  No  sanctity  attaches  to  a  trades  union 
which  puts  it  above  the  law,  or  which  confers  upon  it  rights  not  en- 
joyed by  any  other  individual  or  association.  The  two  classes  of  per- 
sons to  whom  we  have  adverted  and  whose  ri|^ts  necessarily  become 
involved  where  a  picket  or  patrol  is  established,  are,  first,  the  rights  of 
those  employed  or  seeking  employment  in  the  {dace  of  the  striking 
laborers,  and,  second,  the  rights  of  the  general  public.  It  is  the  abso- 
lute, imquaUfied  ri^t  of  every  employee,  as  well  as  of  every  other 
person,  to  go  about  his  legal  business  unmolested  and  unobstructed 


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1010  PIERCE  V.  STABLEBiEN's  UNION  NO.  8760       [CHAP.  VUI. 

and  free  from  intimidation,  force,  or  duress.  The  right  of  a  labor 
association  to  strike  is  no  higher  than  the  right  of  a  non-union  work- 
man to  take  employment  in  place  of  the  strikers.  Under  ttie  assur- 
ance and  shield  of  the  Constitution  and  of  the  laws,  the  non-union 
laborer  may  go  to  and  from  his  labor  and  remain  at  his  place  of  labor 
in  absolute  security  from  imlawful  molestations,  and  wherever  the 
laws  fail  to  accord  such  protection,  in  so  far  is  their  execution  to  be 
blamed.  In  this  country  a  man's  constitutional  Uberty  means  far 
more  than  his  mere  personal  freedom.  It  means  that,  among  other 
rights,  his  is  the  right  freely  to  labor  and  to  own  ttie  fruits  of  his  toil. 
(Ex  parte  Jentzsch,  112  Cal.  468.)  Any  act  of  boycotting,  therefore, 
which  tends  to  impair  this  constitutional  right  freely  to  labor,  by 
means  passing  beyond  moral  suasion,  and  pla3ring  by  intimidation 
upon  the  physical  fears,  is  unlawful. 

The  inconvenience  which  the  public  may  sufifer  by  reason  of  a  boy- 
cott lawfully  conducted  is  in  no  sense  a  legal  injury.  But  the  public's 
rights  are  invaded  the  moment  the  means  employed  are  such  as  are 
calculated  to  and  naturally  do  incite  to  crowds,  riots,  and  distiu'bances 
of  the  peace. 

A  picket,  in  its  very  natm^,  tends  to  accomplish,  and  is  designed  to 
accomplish,  these  very  things.  It  tends  to  and  is  designed,  by  physical 
intimidation,  to  deter  other  men  from  seeking  employment  in  the 
places  vacated  by  the  strikers.  It  tends,  and  is  designed,  to  drive  busi- 
ness away  from  the  boycotted  place,  not  by  the  legitimate  methods 
of  persuasion,  but  by  the  illegitimate  means  of  physical  intimidation 
and  fear.  Crowds  naturally  collect;  distiu'bances  of  the  peace  are 
always  imminent  and  of  frequent  occurrence.  Many  peaceful  citizens, 
men  and  women,  are  alwayfe  deterred  by  physical  trepidation  from 
entering  places  of  business  so  under  a  boycott  patrol.  It  is  idle  to 
split  hairs  upon  so  plain  a  proposition,  and  to  say  that  the  picket 
may  consist  of  nothing  more  than  a  single  individual  peacefully  en- 
deavoring by  persuasion  to  prevent  customers  from  entering  the  boy- 
cotted place.  The  plain  facts  are  always  at  variance  with  such 
refinements  of  reason.  Says  Chief  Justice  Shaw  in  Commonwealth 
V,  Hunt,  4  Met.  Ill :  "  The  law  is  not  to  be  hoodwinked  by  colorable 
pretences;  it  looks  at  truth  and  reality  through  whatever  disguise  it 
may  assume."  If  it  be  said  that  neither  threats  nor  intimidations  are 
used,  no  man  can  fail  to  see  that  there  may  be  threats,  and  there  may 
be  intimidations,  and  there  may  be  molesting,  and  there  may  be  ob- 
structing, without  there  being  any  express  words  used  by  which  a  man 
should  show  violent  threats  toward  another,  or  any  express  intimida- 
tion. We  think  it  plain  that  the  very  end  to  be  attained  by  picketing, 
however  artful  may  be  the  means  to  accomplish  that  end,  is  the  injiuy 
of  the  boycotted  business  through  physical  molestation  and  physical 
fear  caused  to  the  employer,  to  those  whom  he  may  have  employed 
or  who  may  seek  employment  from  him,  and  to  the  general  public. 


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CHAP.  VUI.]       PIERCE  V.  STABLEMEN'S  UNION  NO.  8760  1011 

The  boycott,  having  employed  these  means  for  this  imquestioned  pur- 
pose,  is  illegal,  and  a  court  will  not  seek  by  over-niceties  and  refine- 
ments to  legalize  the  use  of  this  imquestionably  illegal  instrument. 
(Vegelahn  v.  Gimtner,  supra,  Crmnp  v.  Commonwealth,  84  Va.  927; 
Union  Pacific  v.  Ruef,  120  Fed.  Rep.  124;  18  Ency.  of  Law,  2d  ed., 
page  85.) 

In  conclusion,  then,  and  appl3ring  these  principles  to  the  injunction 
here  under  consideration,  it  appears  that,  while  the  injunction  was 
properly  granted,  it  was  broader  in  its  terms  than  the  law  warrants. 
It  was,  for  example,  too  broad  in  restraining  defendants  from  "  in  any 
wise  interfering  with  "  plaintiff's  business,  since  the  interference  which 
we  have  discussed,  of  publication,  reasonable  persuasion,  and  threat 
to  withdraw  patronage,  is  legal  and  such  as  defendants  could  employ. 
So,  also,  was  the  injunction  too  broad  in  restraining  defendants  from 
"  intimidating  any  customer  by  boycott  or  threat  of  boycott,'*  since, 
as  has  been  said,  the  secondary  boycott  is  likewise  a  legal  weapon.  In 
aU  other  respects,  however,  the  injimction  was  proper. 

The  trial  court  is  directed  to  modify  its  injimction  in  the  particulars 
here  specified,  and  in  all  other  respects  the  judgment  will  stand 
affirmed. 

We  concur:  Lorigan,  J.;  Beattt,  C.  J.;  Melvin,  J. 

Shaw,  J.  I  agree  with  all  that  is  said  by  Justice  Henshaw  in  his 
opinion,  except  the  part  relating  to  the  so-caUed  "  secondary  boycott  " 
and  the  attempt  to  draw  a  distinction  between  the  compulsion  of  thirds 
persons  caused  by  picketing,  and  the  compulsion  of  third  persons  pro- 
duced by  a  boycott.  My  views  concerning  the  "  secondary  boycott  " 
are  expressed  in  my  dissenting  opinion  in  Parkinson  v.  Building 
Trades  Council,  (Cal.)  98  Pac.  1040.  The  means  employed  for  the 
coercion  or  intimidation  of  a  third  person  in  a  "  secondary  boycott  '* 
are  imlawful  whenever  they  are  such  as  are  calculated  to,  and  actually 
do,  destroy  his  free  wiU  and  cause  him  to  act  contrary  to  his  own 
volition  in  his  own  business,  to  the  detriment  of  the  person  toward 
whom  the  main  boycott  or  strike  is  directed;  in  other  words,  when- 
ever the  means  used  constitute  dm-ess,  menace,  or  undue  influence. 
Whether  this  coercion  or  compulsion  comes  from  fear  of  physical 
violence,  as  in  the  case  of  picketing,  or  from  fear  of  financial  loss,  as  in 
the  secondary  boycott,  or  from  fear  of  any  other  infliction,  is,  in  my 
opinion,  immaterial,  so  long  as  the  fear  is  sufficiently  potent  to  control 
the  action  of  those  upon  whom  it  is  cast.  I  can  see  no  logical  or  just 
reason  for  the  distinction  thus  sought  to  be  made.  There  is  no  such 
distinction  in  cases  where  contracts  or  wills  aife  declared  void,  because 
procmred  by  duress,  menace,  or  undue  influence.  There  should  be 
none  whei^  actual  injury  is  produced  or  threatened  through  such 
means  acting  upon  third  persons.  Nor  do  I  believe  any  well-con- 
sidered case  authorizes  any  such  distinction.  The  opinions  in  the  case 
of  National  Protective  Association  v,  Cummings,  170  N.  Y.  315,  are 


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1012         piEBCjs  V.  stablemen's  union  no.  8760     [chap.  vni. 

devoted  to  a  discussion  of  the  right  to  strike  and  the  limitations  of 
that  right  and  not  to  a  discussion  of  the  ''  secondary  boycott."  A 
close  analysis  of  the  cases  on  the  subject  will,  as  I  believe,  show  that 
this  court  stands  alone  on  this  point. 

For  these  reasons  I  do  not  agree  to  that  part  of  the  judgment  direct- 
ing a  modification  of  the  injunction.  I  believe  that  it  should  stand  in 
the  form  as  given  by  the  court  below* 

Angellotti,  J.,  and  Sloss,  J. 

We  concur  in  the  judgment.  The  modification  of  the  judgment  is 
in  line  with  the  views  annoimced  in  the  Parkinson  case.  So  far  as 
''  picketing  "  is  concerned,  while  we  are  not  prepared  to  hold  that 
there  may  not  be  acts  coming  within  that  term  as  it  is  accepted  and 
imderstood  in  labor  disputes,  that  are  entirely  lawful  and  should  not 
be  enjoined,  we  believe  tliat  as  to  such  ''  picketing  "  as  is  described  in 
both  findings  and  judgment  in  this  case,  the  views  expressed  in  the 
opinion  of  the  court  are  correct.^ 

»  Bossert  v,  Dhuy,  221  N.  Y.  342;  Cohn  &  Roth  Electric  Co.  v.  Briddayers* 
Union,  92  Conn.  161  Accord.  See  Iron  Molden*  Union  v,  Allis  Chalmera  Co.,  (C. 
C.  A.)  166  Fed.  45.  Also  Wigmore,  The  Boyoott  as  Ground  for  Damages,  21 
American  Law  Rev.  509,  and  Intenerence  with  Social  Relations,  21  American 
Law  Rev.  764. 


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INDEX 

ABANDONMENT, 

of  action,  if  voluntary,  equivalent  to  termination  in  defendant's  favor,  629. 
of  action,  by  way  of  compr(»ni8e,  not  equivalent  to  termination  in  defend- 
ant's favor,  629. 

ABSTRACTER  OF  TITLE, 

liability  to  third  party  injured  by  mistake  or  omission,  262  n. 
ABUSE  OF  PROCESS, 

malicious,  653. 
ACCIDENT, 

without  negligence,  excuses  trespass  to  person,  29,  30,  35,  40. 

excuses  trespass  to  personalty,  42. 

through  negligence,  no  excuse  for  a  trespa;^,  29,  30,  35. 

ACTION  (see  MAuaous  Institution  of  8ivil  Action). 

ADVERTISING, 

blind,  interference  with,  838. 

ADVICE, 

of  counsel,  probable  cause  for  prosecution  of  plaibtifF,  634. 

ADVOCATE, 

statements  by,  when  privileged,  697,  709. 

ANIMALS, 

trespass  on  land  by  cattle,  404,  406. 

trespass  on  land  by  dog,  406  n.,  445. 

trespass  on  land  by  chickens,  406  n. 

liability  of  owner  for  trespass  by  cattle  driven  on  highway,  406,  409  n. 

statutes  as  to  trespassing  animals,  409,  410  n. 

common  law  as  to  trespassing,  how  far  applicable  in  U.  S.,  410,  414  n. 

liability  where  cattle  turned  on  another's  unenclosed  lands,  414  n. 

liability  of  owner  of  unenclosed  lands  for  injury  to  trespassing  cattle,  409, 415. 

whether  a  right  of  pasturage  on  unenclosed  lands,  415,  419  n. 

liability  for  injuries  by  wild,  419,  421,  422. 

liability  for  injuries  by  vicious  domestic,  421,  421  n. 

classification  of  animals  with  respect  to  liability  for  injuries  by,  423,  427  n. 

liabflity  for  injuries  by  bees,  425  n. 

what  are  wild,  424,  425. 

injury  through  frif^t  at  sight  of  wild  animal,  427. 

interference  with  wild,  bars  recovery  for  injiuy,  430. 

contributory  negligence  of  person  injured  by,  432  n. 

injury  by  donwstic,  scienter  necessary,  433,  434  n. 

injury  to  trespasser  by  domestic,  434  n. 

vicious  dog  killed  by  trespassing  dog,  434  n. 

what  constitutes  scienter,  434  n. 

liability  for  injiuy  by  vicious,  where  neither  scienter  nor  negligence,  434, 

436  n. 
what  is  dangerous  propensity,  437. 
injury  by  horse  running  at  large  on  highway,  438,  440. 

1013 


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1014  INDEX 

ANIMALS  (continued) 

injury  to  person  by  trespassing,  441,  448,  451  n. 

injury  to  person  by  trespassing  hen,  450. 

injury  to  person  by  trespassing  animal,  normally  harmlcBB,  450. 

escape  of  wild  or  vicious,  through  m  major,  471. 

escape  of  wild  or  vicious,  through  act  of  third  person,  436  n. 

injury  by  vicious,  when  excited  by  third  person,  436  n, 
ARREST  (see  Maucioits  Inbtitution  of  Civil  Action), 

what  is,  19,  20,  21. 
ARTICLES  OF  PEACE, 

malicious  exhibition  of,  626. 
ASSAULT, 

what  is,  1,  2,  4,  6,  7,  10. 

what  is  not,  2,  3,  11. 

complete  without  contact,  1. 

aiming  unloaded  gun,  7,  9  n. 

firing  revolver  in  plaintiffs  presence,  but  not  at  him,  7  n. 

act  of  preparation  for,  2  n.  « 

intention  of  defendant,  7, 10  n. 

present  ability  to  injure,  7,  9  n. 

aggravation  of,  11. 

insulting  words,  looks,  and  gestures,  no,  11,  11  n.,  12  n. 
ASSUMPTION  OF  RISK, 

by  trespasser,  157,  160. 

by  licensee,  177,  179. 

by  servant,  201.    ' 

by  interference  with  wild  animal,  430. 

of  another's  negligence,  345, 351  n. 
ATTACHMENT, 

action  lies  for  maliciously  causing,  629  n.,  646. 

ATTORNEY  (see  Counsel). 

AUTOMOBILES, 

operation  of,  by  unlicensed  person,  402  n. 
unlicensed,  status  of  in  highway,  398,  400  n.,  402  n. 

BAILEE, 

standard  of  care,  82  n. 

BANKRUPTCY, 

•  n^licious  institution  of  proceedings  inf,644. 
imputation  of,  to  a  business  man,  690. - 

BATTERY, 

what  is,  12,  16. 

what  is  not,  12,  13. 

hostile  touching,  12  n. 

touching  contra  bonoa  moreSf  12  n. 

unauthorized  surgical  operation,  12  n.  ^  .- 

defendant  must  be  actor  to  make,  13. 

touching  plaintiff  to  attract  his  attention,  when  a,  13. 

by  striking  a  horse  when  driven,  15. 

whether  indictment  for,  will  support  action  of  malicious  proeecutioiiy  624. 

injury  to  clothes  on  plaintiff's  person,  16  n. 

cutting  rope  connecting  plaintiit  with  his  slave,  16  n.  . 

injury  in  coimse  of  "  friendly  scuffle,"  18  n. 


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INDEX  1015 

BEES, 

liability  of  owner  of,  for  injuries,  425  n. 
BLASTING, 

injuries  by,  40  n. 

BOYCXyrr  (see  CoMPETrnoN,  Maliciotts  Injury  to  Plaintifp  by  Influ- 
encing Conduct  of  Another)  , 

secondary,  998,  1004. 

for  the  purpose  of  strengthening  union,  978,  987. 

for  the  purpose  of  gaining  control  of  labor  market,  989  n. 

for  the  purpose  of  forcing  third  person  to  bring  pressure  on  employer,  997. 
BREACH  OF  STATUTORY  DUTY  (see  Pubuc  Wrong), 

how  far  groimd  of  private  action,  510,  512  n.,  513,  515,  516. 

to  repair  street  or  sidewalk,  513  n. 

toward  third  person,  516,  520  n. 

Lability  to  trespasser  or  licensee  in  case  of,  520  n. 
BUSINESS, 

slander  of  one  in  his  (see  Defamation). 

CANDIDATE, 

discussion  of  qualifications  of,  755. 
CARRIER, 

may  be  sued  either  upon  contract  or  tort,  125, 126  n. 
CLERGYMAN, 

imputation  of  misconduct  to,  689  n. 

not  liable  for  public  refusal  c^  commimion,  757. 
COMBINATION, 

whether  members  of,  liable  for  acts  which  would  be  lawful  if  done  by  a  single 
individual,  910,  976,  977  n. 
COMMENT, 

fair,  on  public  matters,  not  actionable,  726,  769. 

aspersion  of  motives  not  fair,  766,  775. 

false  charge  of  specific  acts  not  fair,  775  n.,  785  n.,  792. 

fair,  distinguished  from  privileged  occasion,  760,  779,  795  n. 

violent  attacks  and  insulting  words  not,  786  n. 
COMMERCIAL  AGENCY, 

statements  by,  when  privileged,  739  n. 
COMPETITION, 

conflict  between  employers  and  employed  is,  976. 

mere  rivalry  is  fair,  936. 

puffing  is  fair,  826. 

combination  to  smash  rates  is  fair,  906. 

reducing  prices,  913. 

sending  oiu*  rival's  business  card  in  injurious  manner,  not  fair,  831. 

bad  motive,  913, 918,  923,  939. 

inducing  servant  at  will  to  leave  master,  whether  fair,  873  n. 

inducing  servant  to  leave  at  expiration  of  term,  872  n. 

influencing  third  person  by  fraud,  not  fair,  827,  828  n.,  907  (but  see  858). 

misleading  use  of  one's  own  name,  829  n. 

influencing  third  persons  by  force  or  threats  of  physical  injury,  not  fair,  864, 
935,  937,  907. 
.     boycotting  by  threats  of  pecuniary  damage,  not  fair,  952,  978j  989,  996,  99S, 
1004. 

inducing  third  person  to  break  contract,  not  tear,  907,  908. 


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1016  INDEX 

CX)NSENT  (see  Leave  and  License). 
CONSPIRACY  (see  Combination), 

to  defraud  creditors,  846. 

to  suborn  witnesses,  710. 

to  alter  provisions  of  will,  852. 
CONTRACT, 

causing  breach  of,  a  tort,  874,  884, 887,  908. 
CONTRIBUTORY  NEGLIGENCE  (see  Pubuc  Wrong), 

an  afifirmative  defence,  264  n. 

must  be  negatived  by  plaintiff,  264,  264  n. 

a  bar  to  recovery,  263,  266  n.,  274. 

must  be  a  proximate  cause  of  the  injury,  265,  294,  296  n. 

doctrine  of  comparative  negligence,  267,  269,  269  n. 

apporticmment  of  loss,  269,  273  n. 

doctrine  of  last  clear  chance,  275,  278, 279,  281,  282,  283, 288, 295, 296,  299, 
301,  302,  308,  317,  320,  321,  322,  324,  337. 

of  child,  327,  328,  329. 

humanitarian  doctrine,  330. 

no  bar  in  case  of  wilful  or  intentional  ftijury,  334, 337. 

exposure  of  property  to  danger  from  negligence  of  another,  345,  351  n. 

oi  carrier  not  imputable  to  passenger,  352,  36^  n. 

of  driver  of  vehicle,  when  imputed,  359,  360  n.,  361,  364. 

of  participant  in  joint  enterprise,  362.- 

of  agent  or  servant  imputed,  362  n. 

of  husband  whether  imputed  to  wife,  862  n. 

as  between  fellow  servants,  362  n. 

of  bailee  whether  bars  bailor,  362  n. 

of  parent  or  custodian  of  child  whether  imputed  to  child,  366,  370  n.,  370. 

of  beneficiary  under  Lord  Campbell's  Act  whether  bar  to  recovery,  371, 374, 
374  n.,  377  n. 

in  case  c^  injury  by  animals,  432  n. 
COUNSEL, 

statements  by,  when  privileged,  697,  709  n. 

advice  of,  probable  cause  for  prosecution,  634. 
CREDITORS, 

conspiracy  in  fraud  of  (see  CoNenRAcr). 
CRITICISM  (see  Comment). 

DAMAGE, 

whether  acticNi  for  deceit  without,  525,  529,  595. 

measure  of,  in  action  for  deceit,  604,  605,  606  n. 

caused  by  repetition  of  slander  by  third  person  too  remote,  809. 

slander  actionable  by  reason  of  special,  807,  808,  809,  811. 

loss  of  society  of  tneadB  and  consequent  illness  not  q)ecial,  808. 

loss  of  hospitality  is  special,  810. 

loss  of  gerformanoe  of  gratuitous  promise  is  special,  811. 

loss  of  performance  of  promise  to  marry  is  special,  884  n. 

loss  of  performance  of  contract  where  performance  reasonably  assured  is 

special,  887  n. 
malicious  but  not  defamatory  words,  whether  actionable,  if  special,  812. 
no  action  for  slander  of  title  without  special,  816. 
q)ecial,  what  is,  819  n.,  847  n.,  856,  859  n.,  884  n. 

special,  not  necessary  where  one  passes  off  his  product  as  another's,  829  n. 
special,  not  necessary  in  action  for  malicious  injury  to  business,  854. 


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INDEX  1017 

DANGEROUS  USE  OF  LAND, 
for  reservoir,  452,  482  n. 
"  non  natural  use,"  463,  463  n. 
what  is,  463  n.,  466  n. 
tank  of  petroleum,  466  n.,  482  n. 
stored  nitroglycerin,  466  n. 
hydraulic  mains,  467  n. 

customary  or  statutory  authority  to  make,  467  n. 
no  liability  for,  in  case  of  vis  majcTy  468. 
no  liability  in  case  of  interference  by  third  personi  475. 
steam  boiler,  477. 
explosives,  482  n,,  498,  502. 
doctrine  of,  considered,  477,  482. 
water  pipes  in  building  whether,  492. 
gas  in  pipes,  493  n. 

allowing  land  to  go  to  weeds  not,  493. 
maintaining  fire,  496. 
fires  set  by  locomotives,  497  n. 

DAUGHTER, 

no  action  for  marrying  one's,  869  n. 

DECEIT, 

requisites  of  action  for,  521,  530. 

whether  action  for,  without  damage,  529,  531,  595,  596  n, 
fraudulently  procuring  wife  to  refuse  to  live  with  husband^  533. 
sufl&dent  if  false  statement  one  motive  of  plaintiff's  action,  535,  536  n. 
representation  of  intention,  537,  539,  541  n.,  542,  547  n. 
purchase  on  credit  with  present  intention  not  to  pay,  542,  548. 
promissory  representation,  550. 
known  impossible  prophecy,  551  n. 
statement  of  vendor  as  to  price,  551,  553  n. 
statement  of  opinion,  551,  553,  555. 
statement  as  to  value,  553  n. 
statement  as  to  value  of  promissory  note,  557. 
statement  of  value,  whether  opinicMi  or  fact,  551,  553,  555,  559,  560  n. 
statement  as  to  matter  within  special  knowledge  of  defendant,  556, 560, 616. 
conceahnent  of  material  fact,  561,  562  n. 

statement  must  be  known  to  be  false  or  made  recklessly,  563,  569  n« 
statement  made  recklessly  without  knowledge  of  facts,  573  n. 
liability  for  innocent  or  negligent  misrepresentation,  572,  573  n.,  574,  576. 
statement  by  fiduciary,  578. 
estoppel  to  deny  truth  of  statement,  580,  582  n. 
duty  to  make  representation  good,  581. 
duty  to  know  whether  statement  true,  583, 584  n. 
statement  of  belief  as  if  fact,  584. 
statement  without  reasonable  ground  for  belief,  588  n. 
reliance  oh  statement  where  defendant  obviously  without  personal  knowl- 
edge, 588  n. 
not  necessary  that  defendant  profit  by,  588. 
statement  expected  to  be  passed  on  to  others,  592,  595  n. 
statement  not  expected  to  be  passed  on  to  others,  595. 
procuring  plaintiff  to  incur  liability,  597,  598. 
procuring  plaintiff  to  refrain  from  selling  property,  599,  601. 
whether  plaintiff  must  use  diligence  to  guard  against,  606, 607  n.,  608, 612  n., 

616,  617  n. 
execution  of  instrument  without  reading,  608  n. 


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1018  INDEX 

DECEIT  (continued) 

reliance  on  representation  where  equal  means  of  knowledge,  608  n.,  612. 

reliance  on  friendship,  608  n. 

reliance  on  representation  where  plaintiff  informed  of  truth  by  another,  612  n. 

reliance  on  assertion  of  title,  612  n. 

reliance  on  statement  as  to  boundary,  612  n. 

reliance  on  representation  as  to  quantity  of  land,  612,  613. 

refusal  of  defendant  to  put  representation  in  writing,  612  n. 

representation  as  to  law,  616  n. 

stipulations  against  liability  for,  617. 

measure  of  damage  in  action  for,  604,  605|  606  n. 

DEFAMATION, 
Publication, 

communication  to  plaintiff  alone  not  a,  657,  659. 

communication  to  plaintiff's  wife,  658. 

communication  by  defamer  to  his  own  wife,  658  n. 

commimication  to  business  partner,  658  n. 

communication  to  plaintiff's  attorney,  659  n.  ^ 

mailing  of  post  card,  whether  a,  660  n. 

in  ignorance  of  the  libel,  660  n. 

must  be  of  and  concerning  plaintiff,  665. 

of  and  concerning  plaintiff,  what  is,  669,  672,  676. 

reading  letter  to  third  person  a,  658. 

reading  letter  by  third  person  a,  659. 
Libd, 

what  is,  679. 

defamatory  statement  that  describes  two  different  persons,  671. 

defamatory  statements  partially  describing  each  of  two  different  persons, 
672. 

words  injurious  to  plaintiff  in  the  eyes  of  part  of  the  community,  673, 
674n. 

use  of  plaintiff's  name  to  describe  fictitious  person,  674. 
Slander, 

woHs  imputing  crime,  661,  682,  683. 

words  imputing  unchastity  to  a  woman,  683,  685. 

words  disparaging  one  in  his  calling,  687,  690,  691. 

imputation  of  misconduct  to  clergjrman,  689  n. 

imputation  of  misconduct  to  teacher,  689  n. 

imputation  of  drunkenness  to  officer,  689  n. 

imputation  of  insolvency  to  tradesman,  690. 
•  imputation  of  cheating  to  tradespian,  691  n. 

imputation  of  ignorance  to  physician,  692. 

imputation  of  misconduct  in  office  of  honor  not  oi  profit,  i693  n. 

words  imputing  a  loathsome  disease,  694,  695. 

imputation  of  insanity,  694,  695  n. 

defamatory  words  causing  special  damage,  807,  808,  809,  811. 

words  to  be  taken  in  natural  sense,  661. 
Justification, 

truth  a,  695. 

belief  in  truth  not,  676,  771  n. 

repetition  not  a,  677. 
Absolutely  Privileged  Occasions, 

statements  in  legislative  proceedings,  697  n.,  710  n. 

in  course  of  acts  of  state,  697  n. 

official  statements  of  administrative  officers,  710  n. 


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INDEX  1019 

DEFAMATION  (carUinued) 

statements  in  judicial  prooeedings,  by  judge,  695;  by  witness,  703,  707; 

by  counsel,  697,  702  n. 
what  are  judicial  proceedings,  702  n.,  710  n. 
irrelevant  statements  in  judicial  proceedings,  696,  703,  707,  709  n. 
what  statements  are  irrelevant,  704,  709  n.,  710  n. 
ConditionaUy  Privileged  Oceanons, 
reports  of  legislative  proceedings,  720. 
reports  of  judicial  proceedings,  714. 
reports  of  ex  parte  judicial  proceedings,  716. 
reports  of  quasi  judicial  proceedings,  729,  729  n. 
report  of  proceedings  of  church  commission,  730  n. 
petition  or  memorial  for  removal  of  public  officer,  768  n. 
fair  abstracts  of  judicial  proceedings,  731. 
reports  of  public  meetings  in  general,  whether,  727,  728  n. 
publication  of  reports  of  administrative  officers,  729  n. 
reports  of  news  by  newspapers  not,  732. 

statements  in  common  interest  of  maker  and  receiver,  734,  736  n. 
statements  by  person  inmiediately  interested  to  protect  his  own  interest, 

737  n. 
statement  of  suspicions  in  course  of  investigation  of  crime,  736. 
statement  in  course  of  dispute  as  to  property,  738  n. 
solicited  statements  in  interest  of  receiver,  738. 
statement  by  commercial  agency,  739  n. 
statement  by  attorney  to  client,  740  n. 
statement  in  course  of  business  duty,  740  n. 
statement  by  member  of  family  as  to  character  of  suitor,  740  n. 
statement  as  to  character  of  candidate  for  admission  to  society,  740  n. 
solicited  statements  as  to  character  of  servant,  738. 
solicited  statements  as  to  credit  of  tradesman,  739  n. 
statements  by  a  fiduciary  to  his  principal,  740  n. 

volunteered  statements  in  interest  of  receiver^  when,  740,  746  n.,  747,  749. 
publication  of,  in  presence  of  stranger,  750,  753,  754  n. 
general  publication  as  to  candidate  for  local  office,  754  n. 
publication  of  matter  of  public  interest  in  the  commimity,  755. 
statements  in  public  meetings,  756  n. 
published  reply  to  defamatory  statements,  756  n. 
publication  to  representative  of  interested  receiver,  763. 
publication  of,  on  post  card,  not  justifiable,  754. 
publication  of,  to  typewriter,  whether  justifiable,  768,  761  n. 
publication  of,  to  wrong  person,  by  mistake,  whether  excused,  761  n. 
malice  destroys  immunity  in,  761. 

Fair  Comment^ 
upon  public  matters  not  actionable,  726,  769,  771  n. 
what  are  public  matters,  771  n.,  795  n. 
distinguished  from  privilege,  770,  779,  795  n. 
criticism  of  published  writings  when,  772,  775,  782. 
aspersion  of  motives  not,  769,  775. 
false  charges  of  specific  acts,  775  n.,  785  n.,  792. 
violent  attacks  and  insulting  statements,  not,  786  n 

Malice, 
in  fact  and  law,  662. 
what  is,  749,  771  n. 
burden  is  on  plaintiff  to  show,  790  n. 
publication  prima  facie  evidence  of,  663, 


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1020  INDEX 

DEFAMATION  (conHnued) 

ezpran,  muist  be  provedi  if  occasion  is  privileged,  790. 
a  question  of  bona  fides  not  of  reasonableness,  763. 
a  question  of  reasonableness  as  well  as  bona  fides,  766. 
DISPARAGEMENT  OF  PROPERTY,  816  n. 
of  title  (see  Slandeb  of  Title). 
of  goods,  819,  823  n.,  861. 
DOGS  (see  Animals), 

trespass  on  land  by,  406  n.,  445. 
DRUNKENNESS, 

no  excuse  for  tort,  662  n. 


\> 


EMPLOYER  AND  EMPLOYEE  (see  Mabtbb  and  Sbbvant), 
right  of  employer  "  to  have  labor  flow  freely  to  him,"  903. 
inducing  breach  of  contract  by  employees,  884,  887. 
inducing  employer  to  discharge  employee  because  not  a  member  of  trade 

imion,  939,  978  (see  Maucioub  Injttbt  to  Plaintut  bt  iNFLUSNaNQ 

Conduct  of  Another). 
boycotting,  950,  952,  978,  988,  989  n.,  997,  998, 1004. 
picketing,  978  n. 
ENTICING, 

servant,  864,  868. 

FALSE  IMPRISONMENT  (see  Impbisoniont). 
FENCE, 

malicious  erecticNi  of,  928. 
FRIGHT  (see  Mental  ob  NEBVOTrs  Shock). 

HUMANITARIAN  DOCTRINE  (see  Contbibutobt  NEoucaNCB). 

IMPRISONMENT  (see  Abbest), 

what  is,  18, 20, 21, 21  n.,  23, 23  n.,  28  n. 

contact  not  necessary,  19, 21, 23. 

what  is  not,  19,  20,  24. 

mere  words  without  submission  to  restraint  not  an,  19,  20. 

partial  obstruction  not  an,  24. 

shadowing  by  detectives,  23  n. 
IMPUTED  NEGLIGENCE  (see  Contbibutobt  Nbcojoencb). 
INEVITABLE  ACCIDENT  (see  Accident). 
INFANT, 

liable  for  torts,  96,  97  n. 

negligence  of,  88,  88  n.,  90,  93,  93  n. 
INJUNCTION, 

maliciously  obtaining,  648  n. 
INSANE  PERSON, 

liable  for  torts,  29,  29  n.,  662  n. 
INSULT, 

gestures  no  assault,  11, 11  n.,  12  n. 

looks  no  assault,  11,  11  n.,  12  n. 

words  no  assault,  11,  11  n.,  12  n. 

action  lies  for  written  or  spoken,  by  statute  in  Va.,  657  n« 

insulting  statements  not  fair  comment,  786  n. 
INVITEE  (see  Occupibb  of  Pbbmises). 


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INDEX  1021 

JUDGE, 

statements  by,  absolutely  privilegedi  605. 

JUDICIAL  PROCEEDINGS, 

statements  in,  absolutely  privileged,  695,  697,  703,  707,  709  n. 
reports  of,  conditionally  privileged,  714,  716,  720,  731,  761. 
reports  of  quasi,  conditionally  privileged,  729. 

JURY, 

malice  in  action  for  malicious  prosecution  a  question  for,  638. 
malice  in  fact  in  defamation  a  question  for,  662,  752,  763,  790. 

JUSTICE  OF  THE  PEACE, 

advice  of,  when  probable  cause  for  prosecution,  635  n. 

LABORERS,  STATUTE  OF, 

actress  not  a  servant  within,  879. 

LAND  (see  MAuaous  Usb  of  Onb'b  Own  Land;  Danqkroub  Ubs  of  Land). 

LANDLORD  AND  TENANT, 

liability  of  landlord  for  defect  in  premises,  220,  222  n. 

LAST  CLEAR  CHANCE  (see  Contbibutobt  Nequgbncb). 

LEAVE  AND  LICENSE, 

no  bar  to  action  for  injury  received  in  prize  fight,  18. 
procuring  abortion  with  plaintiff's  consent,  19  n. 
injury  in  course  of  illegal  charivari  party,  18  n. 

LEGISLATIVE  PROCEEDINGS, 

statements  in  absolutely  privileged,  720. 
reports  of  conditionally  privileged,  720. 

LIABILITY  WITHOUT  FAULT  (see  Anhialb;  Danqerovs  Usb  of  Land), 
constitutionality  of  legislation  imposing,  482  n.,  494  n. 

LIBEL  (see  Defamation). 

LIQUIDATION, 

malicious  proceedings  in,  against  company,  645  n, 

LORD  CAMPBELL'S  ACT,  372  n. 

LUNACY, 

malicious  proceedings  in,  645  n. 

LUNATIC  (see  Insane  Pebson). 

MALICIOUS  CONSPIRACY  (see  Conspibact). 

MALICIOUS  EXHIBmNG  OF  ARTICLES  OF  THE  PEACE, 

actionable,  625. 

MALICIOUS  INJURY  TO  PLAINTIFF  BY  INFLUENCING  CONDUCT  OF 
ANOTHER, 
enticing  servant  to  leave  master,  864. 
debauching  servant  of  another,  866. 
inducing  breach  of  contract,  874,  884,  887. 
inducing  breach  of  contract  by  laborers,  884,  887,  979  n. 
suborning  witness  to  commit  perjury,  710. 
helping  debtor  to  make  assignment  in  fraud  of  creditors,  846. 
slander  of  title,  813,  816. 
disparagement  of  goods,  819. 


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1022  INDEX 

MALICIOUS  INJURY  TO  PLAINTIFF  BY  INFLUENCING  CONDUCT  OF 
ANOTHER  (continued) 
fraudulent  imitation  of  trade-mark^  827. 
use  of  envelopes  marked  telegram  leading  patrons  of  telegraph  company  to 

believe  latter  imposing  on  them,  837  n. 
fraudulent  statement  that  plaintiff  had  gone  out  of  business,  854,  859. 
fraudulent  sending  out  of  plaintiff's  business  card  under  injurious  circum- 
stances, 831. 
false  though  not  defamatory  imputation  upon  plaintiff,  812. 
slander  of  plaintiff's  wife  resulting  in  injury  to  business,  837  n. 
fraudulently  inducing  testator  to  revoke  bequest  to  plaintiff,  847,  849. 

false  statement  to  mortgagee  procuring  foreclosiu^  in  breach  of  gratuitous 

promise  to  mortgagor,  849  n. 
fraudulently  procuring  third  person  to  sell  to  defendant  in  breach  of  oral 

contract  with  plaintiff  within  statute  of  frauds,  852  n. 
fraudulently  altering  and  defacing  will  leaving  legacy  to  plaintiff,  852. 
.    loosening  horse's  shoe  to  discredit  blacksmith,  829. 
inducing  servant  at  will  to  leave  master,  868. 
frightening  wild  fowl  from  resorting  to  plaintiff's  land,  935,  937. 
threats  of  physical  injury  to  plaintiff's  customers,  863,  864,  897,  935,  968. 
--^threats  of  pecuniary  loss  to  plaintiff's  customa:8,  952,  996. 

threat  of  ph3n3ical  injury  to  plaintiff's  workmen,  863,  978  n. 
^^  threat  of  vexatious  suits  against  customers,  863  n. 
annoyance  of  workmen  resorting  to  plaintiff,  979  n. 
V      threat  to  sell  adjoining  property  to  colored  family,  923  n. 
^V  threat  by  association  of  retail  dealers  to  cease  dealing  with  manufacturer  or 

wholesale  dealer,  997  n. 
— Nthreats,  what  may  lawfully  be  threatened,  975,  975  n. 

refusal  to  insure  ship  if  plaintiff  employed  as  master,  836  n. 
sermon  wa^iing  congregation  against  ph3rsician,  837  ir. 
interference  with  blind  advertisement,  838. 
^  inducing  one  not  to  contract  with  plaintiff,  906,  978,  989,  996,  998,  1004. 
Nboycotting,  952, 987, 989  n.,  997, 997  n.,  998, 1004, 1012  n. 
^strike  to  strengthen  union,  978,  988;  to  gain  control  of  labor  market,  989  n.; 
to  bring  pressure  on  third  person,  997,  998,  1009;    to  procure  discharge 
of  plaintiff  as  means  towards  better  conditions  in  shop,  998  n. ;  to  get  rid  of 
objectionable  foreman,  998  n. 
\  inducing  employer  to  discharge  employee  because  not  a  member  of  trade 

union,  939,  978. 
Mnducing  employer  to  break  contracts  with  laborers,  979  n. 
-  "  smashing  "  rates,  906,  913. 
Nponspiracy,  910,  971. 

inciting  pauper  to  sue  plaintiff,  651. 

MALICIOUS  INJURY  TO  PLAINTIFF  BY  TORT  TO  ANOTHER, 
destruction  of  husband's  house  by  wife  to  injure  insurer,  841. 

MALICIOUS  INSTITUTION  OF  CIVIL  ACTION, 
actionable,  650  n. 
not  actionable,  649. 

voluntary  abandonment  of  former  action  is  failure,  629  n. 
abandonment  by  way  of  compromise  not  failure,  629  n. 
attachment  vacated  evidence  of  want  of  probable  cause,  634  n. 
by  instigating  another  to  sue,  651. 
in  name  of  another,  655. 
prosecution  of  unfounded  claim  for  patent,  645  n. 


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INDEX  1023 

MALICIOUS  PROCEEDINGS, 
in  bankruptcy,  644. 
in  lunacy,  645  n. 
for  removal  of  officer,  645  n. 

levy  on  execution  under  fraudulent  judgment,  648  n. 
procurement  of  execution  of  search  warrant,  648  n. 
attachment,  646. 
arrest  on  civil  process,  648  n. 

holding  to  bail,  648  n.  . . ,  . 

replevin,  648  n. 
garnishment,  648  n. 
procurement  of  injunction,  648  n. 
excessive  attachment,  652  n. 
for  winding  up  company,  645  n» 
MALICIOUS  PROSECUTION, 

Institution  of  Criminal  Proceedings,  620. 

application  for  warrant  but  none  issued,  624  n. 

arrest  without  warrant,  no  further  prosecution,  624  n. 

search  warrant  issued,  no  arrest  or  seiziure  of  property,  624  n. 

warrant  issued,  plaintiff  leaves  jurisdiction  to  avoid  arrest,  620. 
Nature  qf  Criminal  Charge,  624. 

prosecution  under  unconstitutional  statute,^  624  n.       .  t 

prosecution  in  court  without  jurisdiction,  624  n. 
Failure  of  Prosecution,  ,';''-     '-' "; 

generally  essential,  627.  -       .  ^„     ^  [   ^  ^^^'- 

when  not  necessary,  625.       '  ^         "' ^ ..  ,*^    '^' 

nolle  prosequi  IB,  627,  ..  ^    ,;    'j.^    .--t:.  . 

indictment  quashed  is,  when,  629  n.  .Z. 

striking  from  docket  because  in  wrbng  couct^l  when,  G29xu  A.  - 
Abandonment  of  Prosecution, 

if  voluntary  equivalent  to  termination  in  defendant's  favor,  627. 

by  way  of  compromise  not  equivalent  toiteiwuiation  in,  defendant's  favor, 
629  n. 

otherwise  where  settlement  obtained  by  duress,  630  n. 
Reasonable  or  Prcbable  Cause, 

essential,  630. 

definition  of,  631  n.  .^ 

a  question  for  court,  632,  637. 

conviction,  though  reversed,  prima  fade  evidence  of,  632,  633  n. 

conviction,  though  reversed,  conclusive  evidence  of,  ^7. 

commitment  for  grand  jury,  evidence  of,  632,  633  n. 

finding  of  indictment  evidence  pf,  632,  633  n. 

advice  of  coimsel  is,  634. 

advice  of  justice  of  the  peace,  whether,  635  n. 

advice  of  layman  not,  635  n. 

what  must  be  stated  to  counsel,  636  n. 

defendant's  belief  in  plaintiff's  innocence  nega^tives,  639. 

failure  of  prosecution,  whether  evidei^ce  of  want  of,  633  n.,  641. 

want  of,  not  to  be  inferred  from  xpalice,  64?  n. 

if  not,  still  no  action  for,  if  plaintiff  was  in  fact  guilty,  644. 
Malice, 
'  meaning  of,  637,  638  n.,  642. 

question  of  fact  for  jury,  637. 

not  a  necessary  inference  from  want  of  probable  cause,  636,  641,  643  n. 

of  no  mwnent,  if  probable  cause  exists,  630. 
^  Damage,  624. 


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1024  INDEX 

MALICIOUS  USB  OF  ONE'S  OWN  LAND, 

general  discusrion  of  doctrine  of,  923, 939, 952  n. 

by  erecting  fence  to  annoy  neighbors,  927  n.,  928. 

by  erecting  building  annoying  to  neighbor,  926. 

by  diverting  percolating  water,  928  n. 

malice  must  be  dominant  motive,  935  n. 

by  frightening  wild  fowl  from  resorting  to  plaintiff's  land,  935,  937. 

by  cutting  trees  causing  evaporation  from  stream  to  injury  of  pluntiff's 
water  right,  938. 
MALICIOUS  WORDS  (see  Defamation;   MAuaous  Injttrt  to  Plaintiff 
BT  Influencing  Conduct  of  Anotheb;  Slandbb  of  Title). 

MANUFACTURER, 

liability  of,  for  defects,  228,  233,  235,  251. 

MARRIAGE, 

loss  of,  is  special  damage,  807. 

loss  of  pmf ormance  of  promise  to  marry,  is  spedal  damage,  884  n. 

fraudulent,  of  plaintiff's  daughter,  869. 

MASTER  AND  SERVANT, 

seduction  of  servant  of  another,  866. 

enticing  servant  of  another,  864. 

threat  of  physical  injury  to  servant  of  another,  863 

inducing  servant  at  will  to  leave  master,  873  n. 

MENTAL  OR  NERVOUS  SHOCK, 

action  for  causing,  45,  49  n.,  50  57  n.,  58,  6L 

MISFEASANCE  (see  Negugence). 

MISTAKE, 

in  addressing  a  privileged  oommunication,  761  n. 
defamation  by,  761  n. 

MORAL  DUTY, 

assumption  of  pmformance  of,  129, 141. 
in  absence  of  relation  between  parties,  131. 
where  relation  between  parties,  134, 137  n. 

MOTIVE  (see  Malice), 

aspersion  of,  of  public  man,  not  fair  comment,  769,  775. 

NEGLIGENCE  (see  Contributory  Negligence;  Occupier  op  Premises;  Tres- 
passers; PuBuc  Wrong), 
without  damage,  no  liability,  41. 
must  be  proximate  cause  of  injury,  42. 
standard  of  care,  63,  66  n.,  67,  76. 
ordinary  care,  definition  of,  70. 
standaid  in  case  of  physicai  disability,  71,  73. 
degrees  of,  77,  79,  79  n.,  82  n.,  83,  85  n. 
statutory  degrees  of,  86. 
of  infant,  88,  88  n.,  90,  92  n.,  93. 
proof  of,  98,  102,  106,  111,  113,  115. 
duty  of  care,  120,  125. 
definition  of,  156. 
^  requirement  of  duty  of  care  toward  person  injured,  156. 
in  performance  of  gratuitous  undertaking,  184  n. 
liability  for,  of  maker  or  vendor  of  chattel,  228,  233,  235,  246,  251. 
oomparative  negligence,  267,  268  n.,  269. 


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INDEX  1025 

NEGLIGENCE  (continued) 

difference  between  groes  negligence  and  wanton  or  reckless  conduct,  340, 
342  n.,  343. 

as  ground  of  recovery  for  injury  by  vicious  animal,  434. 

breach  of  rules  of  a  private  corporation,  whether,  508  n. 
^  violation  of  ordinance,  whether,  508  n. 

breach  of  statutory  duty,  whether,  391,  400  n.,  504,  506,  506  n. 

liability  for  negligent  language,  573  n. 
NERVOUS  SHOCK  (see  Mental  ob  Nervous  Shock). 
NEWSPAPER, 

has  no  peculiar  privilege  in  defamation,  732. 
NOLLE  PROSEQUI  (see  MAuaous  Pbosecution). 
NONFEASANCE,  127, 129, 131,  134,  137,  142  n. 
NUISANCE  (see  Dangeboub  Use  of  Land), 

**  attractive,''  165, 170  n.,  170, 173,  176  n.;  age  to  which  doctrine  applicable, 
171  n. 

allowing  land  to  go  to  weeds  not,  493. 

trees  shading  another's  land  not,  495. 

stored  explosives,  498,  502. 

OCCUPIER  OF  PREMISES  (see  Trespass;  Nuisance  "  attractive  ";^  Land- 
lord AND  Tenant), 
liability  to  trespassers,  147,  149  n. 
liability  to  known  trespassers,  149. 
liability  to  anticipated  trespassers,  150, 154,  156  n. 
liability  to  trespassers  prohibited  by  statute,  153  n. 
duty  to  look  out  f<»r  trespassers,  156  n. 
liabiUty  to  Hoensee,  177, 179, 183, 183  n.,  186, 191. 
injury  to  licensee  b^  "  trap,"  179. 
liability  to  children  licensees,  183  n. 
liability  where  known  permissive  use  by  public,  183  n. 
liability  in  case  of  gratuitous  carriage,  183  n. 
^    liability  to  licensee  for  negligent  operation  of  active  force,  186, 190  n. 
duty  to  notify  of  withdrawal  of  license,  191. 
liability  to  invitee,  194,  199  n. 
duty  to  child  accompanying  invitee,  200  n. 
liability  to  children  invitees,  200  n. 
duty  to  invitee  of  licensee,  200  n. 
liability  where  plaintiff  exceeds  invitation,  200  n. 
liability  where  notice  habitually  disregarded,  201. 
not  an  insurer  of  safety  of  invitees,  203. 
duty  toward  invitees  to  ascertain  condition  of  premises,  202. 
liability  for  injury  to  invitees  by  third  persons,  204. 
who  are  invitees,  207,  214,  220  n. 
liability  to  social  guest,  222,  225  n. 
liability  in  case  of  license  conferred  by  law,  225,  227  n. 
liability  to  trespasser  or  licensee  in  case  of  breach  of  statutory  duty,  520. 

PARTY, 

statements  by,  privileged,  709  n. 
PEACE, 

malicious  exhibition  of  articles  of,  626. 
PHYSICAL  IMPACT, 

necessity  of,  45,  50,  58,  62  n. 


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PHYSICIAN, 

slander  of,  691. 

PICKETING,  897,  968,  978  n.,  1005,  1010. 

POSTAL  CARD, 

whether  mailing  is  publication,  660  n. 
sending  privileged  communication  by,  754. 

PRIVACY, 

interference  with,  797. 

PRIVILEGE  (see  Defamation). 

PRIZE  FIGHT, 

each  party  to,  liable  to  other,  18. 

PROBABLE  CAUSE  (see  MALiaous  PEOSEctmoN). 

PROFESSION  (see  Dbfamahon). 

PROMISE, 

loss  of  performance  of  gratuitous,  is  special  damage,  811. 

PUBLIC  MEETINGS, 

reports  of,  whether  privileged,  727,  728  n. 

PUBLIC  WRONG, 

plaintiff's  participation  in,  no  bar  where  wilful  injury,  377. 
violation  of  Sunday  law,  whether  bar  to  action  for  negligence,  379, 381, 388  n. 
violation  of  ordinance,  whether  bar  to  action  for  negligence,  388,  391. 
violation  of  licensing  or  tegistratidti.  law,  whether  bar  to  action  for  negli- 
gence, 398,  400  n.. 
imlicensed  automobile,  status  of,,  in  highway,  398,  401  n.,  402  n. 
injury  by  dog  unmuzzled  in  violation  of  ordinance,  434  n. 
injuries  by  animals  running  at  large  contrary  to  statute,  441  n. 
breach  of  statutory  duty,  whether  neglig&nce,  391,  400  n.,.  504,  .506,  506  n. 
violation  of  ordinance,  whether  negligence,  508  n. 

PUBLICATION  (see  Defamation). 


REASONABLE  AND  PROBABLE  CAUSE  (see  Malicious  Prosecution). 

REPETITION, 

of  slander,  actionable,  677. 

REPORTS, 

of  legicdative  and  judicial  proceedings,  privileged  (see  Defamation). 

RES  IPSA  LOQUITUR, 

inference  of  negligence,  98,  102,  102  n.,  105  n.,  106. 

necessary  allegation,  105  n.  u 

doctrine  applies  only  in  absence  of  explanation,  105  n.     .     ■  . 

in  actions  by  servant  against  master,  107,  107  n. 

elements  of  the  doctrine,  110  n. 

biutlen  of  proof  not  shifted,  merely  biurden  of  going  forwaxd.  111  n. 

other  inferences  must  be  excluded,  113  n. 

simply  a  rule  of  evidence,  115  n. 

SCIENTER  (see  Animals). 

SEARCH  WARRANT, 

malicious  procurement  of  execution  of,  648  n. 


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INDEX  1027 

SEDUCTION, 

of  daiighter,  866. 
of  plaintiff^s  fiancde,  884  n. 
action  by  woman  for,  16. 
statutory  action  for,  17  n. 
by  guardian,  17  n. 

SERVICE,  LOSS  OF, 

by  enticing  servant,  864. 

by  seducing  daughter  or  female  servant,  866. 

SLANDER  (see  Defamation). 

SLANDER  OF  TITLE  (see  Dispakagement  op  Property), 
differs  from  slander  of  person,  813. 
what  is,  815  n. 

action  for,  survives  as  injury  to  property,  813. 
special  damage  essential,  816. 
whether  malice  required,  816  n. 
what  is  special  dainage,  819  n.,  847  n.,  855,  859  n.,  883  n.,  884  n. 

SMASHING  RATES, 

is  fair  competition,  906,  913. 

SPECIAL  DAMAGE  (see  Damage). 

SUBORNATION  OF  WITNESS, 
action  for,  710. 

SUNDAY  LAWS  (see  Pubuc  Wrong). 

TELEGRAM, 

sending  privileged  conmiimication  by,  753. 
THREATS  (see  MAuaous  Injury  to  Plaintiff  by  iNFLUENaNG  Conduct 
OF  Another). 

TRADE, 

competition  in  (see  Competition). 
slander  of  one  in  (see  Defamation). 

TRADE  DISPUTES  ACT  (English),  897  n.,  967  n. 

TRADE-MARK, 

fraudulent  imitation  of,  827.  • 

TRESPASSER  (see  Nuisance  "  attractive  ")> 
takes  risk  of  condition  of  premises,  157. 
negligent  injury  of,  147,  149,  150. 
wilful,  negligent  injury  to,  149  n. 
child,  duty  to,  150  n.,  160. 

occupier  may  assume,  will  look  out  for  himself,  156  n. 
child,  takes  risk  of  condition  of  premises,  160. 
setting  traps  for,  160  n.,  176  n. 

TRUTH, 

justification  in  action  for  defamation,  695. 

TURN  TABLE  CASES  (see  Nuisance  "  attractive  "). 

TYPEWRITER, 

communication  to,  a  publication,  758. 
communication  to,  not  privileged,  758. 
communication  to,  privileged,  761  n. 


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1028  INDEX 

VENDOR  OF  CHATTEL, 

liability  of,  to  third  persons  for  defects,  228,  233,  235,  251. 

VOLENTI  NON  FIT  INJURIA  (see  Leave  and  License). 

WATER  COMPANY, 

liability  in  tort  for  failure  to  provide  water,  262  n. 

WEEDS  (see  Danqebous  Use  op  Land). 

WITNESS, 

no  action  against,  for  perjury,  712. 

action  for  subornation  of,  710. 

statements  of,  privileged  (see  Defamation) 

WORDS, 

insulting,  no  assault,  11,  11  n.,  12  n. 
malicious  (see  Maucious  Wobds). 
oonsiruction  of,  in  defamation,  661. 


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