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K
Of elementary treatises on all the principal subjects of the law. The
special features of these hooks are as follows:
t ^ suectncf efatemenf of feabtns frmdfUB in iMScitft^
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HAND-BOOK
OF THE
LAW OF TORTS
BY
EDWIN A. JAGGARD, A. M.. LL. B.
Professor of the Law of Torts in the Kaw School of the University of Minnesota
IN TWO VOLUMES
VOL. I
St. Paul, Minn.
WEST PUBLISHING CO.
1895
LIBRARY OF THE
LELAND STANFORD JR. UmERSOf.
COPTKICHT, 189.\
II V
WEST PUBLISHING COMPANY.
SLi-.^
To
MY FATHER AND MOTHER.
Non vodiSj eheu!
Sed memories cares vestrcu
(iil)*
PREFACE.
In this day, when of the making of hooks thoro is no end. it is be-
coming, as is said in a famous American medical treatise, that the
producer of a new book should assign its raison d'etre.
One purpose of this book is to use and ajjpl.v such portions of what
is known as "Jurisprudence" as are especially relevant to the subject
of Torts. John Austin, according to the Saturday Review, **was,
with tlie single exception of Jeremy Hentham, the only Englishman
of anv considerable abilitv who ever made the studv of Jurisprudence
proper the object of his life.'' Mr. Holland has certainly joined this
goodly company. And the labors of (Jordon ('anii)l)ell and Robert
Camphell (supplementary to Austin), and of Sheldon Amos, have con-
tributed materially to the advancement of this branch of legal knowl-
edge. The enormous (piantity of matter daily gi'ound out by the
mills of the law is making it necessary that the practiti(mer, as well
as the student, should again resort to the first principles. Th(» multi-
tude of current authoriti(»s increases the neccssitv of a corrected
analysis, and demands a better classification of the law. There is
little hope of progi'ession in this directi<m from its discussion under
heads of concrete objects, as dogs, horses, bicycles, ice, beer, shilla-
lahs, or the like. While there is not unanimity of opinion on the
subject, there is every indication that the future dev(»lopment of the
law will be, if not ^long the line on which these distinguished think-
ers have worked, at least with increasing reference to tlie results of
their labors. In the law of Torts, this tendency is manifest cons])ic-
uously in one of the able^A (Pigott's) and the most original (Innes')
of the modern books on the subject.
Another purpose of this book has been to develop the general law
of Torts as distinguished from the law of s]UHific or isolated wrongs,
and to then apply the general principles thus evolved to torts with
conventional names. Specific torts were among the earliest subjects
of judicial cognizance. Tivspass to lands and persons, libt^l and slan-
der, conspiracy, and nuisance, are among the oldest heads of thi' com-
V. I— LAW OF TORTS (V)
VI PREFACE.
mon law. But only within very recent times has the process of gen-
eralization been applied to them. Indeed, as Mr. Bishop's personal
experience shows, the idea of a book on Torts, as a distinct subject,
was a few years ago a matter of ridicule. His criticism on an un-
named American book, that it treated of T6rts, not even as a subject,
but as a collection of disconnected cases, might be justly extended to
many others. The lack of general conceptions on this subject is ap-
parent in the absence of any consistent theory as to why a man is
liable for his tort, although in contract and in crime the reason for
legal responsibility readily suggests itself to any inquirer, and is to
be found in any book on those subjects. The theory of Torts was
essentially terra incognita until the contributions of Oliver Wendell
Holmes, Jr., appeared on the subject. His "Common Law" is pro-
nounced by Mr. Fraser (himself a distinguished writer) the ablest
law book ever written by an American. The confusion of ideas in
regard to the importance of the mental element in the law of Torts is
another illustration of this lack of general conceptions- Mr. Oooley's
great book on Torts leaves on the reader's mind the impression that
the mental status of the wrongdoer is not the material consideration
in determining liability for tort, but that the wrong is to be regarded
from the point of view of the injury to the sufferer. On the other
hand, a learned judge (McCrary, J., in Shippen v. Bowen, 48 Fed.
659-660) insists that "a scienter is the very gist of a tort. To say
that one may recover in tort without proving a scienter is to say that
he may omit from his proof the chief element of his case." Such confu-
sion is not in the subject-matter itself. The broader view, closer anal-
ysis, and more precise phraseology of the best modem writers, avoid
it. The development of the general law of Torts owes its greatest debt
to Sir Frederick Pollock. In his treatise on Torts (happily called
by Judge Caldwell a "legal classic") he says: "The purpose of this
book is to show that there is really a law of Torts, not merely a num-
ber of rules about various kinds of torts, — that there is a true, living
branch of the common law, and not a collection of heterogeneous in-
stances." He accordingly divided his discussion into two parts : (1)
The general part, containing principles conmion to all or most torts;
and (2) specific wrongs.
This plan is adopted here, and an attempt is made to extend it by
making the discussion of specific wrongs more an illustration and
PREFACE. Vll
development of the principles stated in the general text than a mere
isolated exposition of rulings as to specific wrongs. To this end,
care has been taken to compare and contrast the various wrongs
one with another. The thread of relationship of contract and tort,
for example, considered in the general part, is traced throughout. It
is discussed under the title of "Negligence" in a general way, and is
then amplified in detail in the discussion of the liability of the
master to his servant, and under the title of **Common CaiTiers,"
It is endeavored to bring out, without slavish devotion to the phrase,
the idea that, w^hile a contract is based on consent, a tort inheres
in relations. This plan, as well as limits of space, preclude con-
sideration of a few specific subjects; like torts arising in connection
with copyrights and patents.
Another purpose of this book is to collate and weld together the
best of the numerous and diverse contributions to the law of torts,
and to bring the subject down to date.
The recent work of English authors along this line is important and
valuable. The contributions of Fraser, Pigott, Innes, (Jlerk & Lindsell,
Ball and Shearwood, and others have most materially advanced the
study of Torts as a subject; especially with regard to the evolution of
the general law, and the simplification of classification. Much legal
learning is to be found in books of leading cases. Many of these
contain scattered but open treasures, and some are the product of
high scholarship, deep thought, and great labor. In no i^lace can
the historical development of the law as to specific wrongs be so ac-
curately traced in the cases themselves as in the collections made
by Professors Ames and Smith. They are mines rich in learning,
but their wealth is deeply buried; nothing but close, hard, and pro-
longed work will extract it. It is inaccessible to the busy lawyer in
the hurry of actual practice. Also, scattered throughout a score
or more of legal publications, are articles of the greatest value.
The writer has been impressed with the truth of the proposition that
many of the most learned, peneti'ating, and satisfactory discussions
of debatable questions, in the law of Torts at least, are to be found
in these comparatively short essays. Some of them have been writ-
ten by specialists on particular topics, who have investigated their
subject with a thoroughness impossible to the writer of a general
text Others come as the finished product of trials in court by the
VIM PREFACE.
iTioKt einin(*nt ineiiil)er8 of the bar, or as the result of dissection l>y
h'arned tc^acliers in the class room. Finally, the law of Torts lias
iHH'ti materially advanced by writers on specific wrongs and col-
lateral subj<H!ts. All these authorities and many others have be<*n
unsparingly uwhI in the present treatise. Due credit has been given
as far an jwissible, but a further and general acknowledgment is here
made for matter borrowed without citation, — in everv instance tlie
result of the familiar but futile hunt for a lost reference. All of
the more important recent cas<^s have been either cited, or used as
illustrations, and the book is brought thoroughly down to date.
Home features of the book which may suggest adverse criti-
cism have been the result of a series of experiments in the class room
as to the b(»st means of clarifying confused ideas, and of so viewinjj^
a difliciilt subject from ditferent points, as to also use iteration to
impress on the student's mind certain ideas otherwise hopelessly
fugitive.
That this book was written in hours stolen from active practice,
and at considerable personal sacrifice, may have contributed to pre-
vent any fair attainment of its purposes. It represents, however, at
least the writer's own work. It has not been delegated to students.
Ev(*rv case and reference has beim individuallv examined.
To Mr. William B. Hale, who edited the manuscript and prepared
it for the press, the writer especially wishes to express his indebted-
ness for many wist* suggestions and criticisms, for preparation of the
ind(»x, and for much valuable assistance in mechanical details.
E. A. J.
St. Paul, Oct. 30. IHIC).
TABLE OF CONTENTS
VOLS. I AND II.
VOL. I.
Part I.
IN GENERAL.
CHAPTER I.
CKNEUAL XATLRF: OF TORTS.
Section PaK<>
1. Definition 2-^;
2-4. Adjective and Substantive Law of Torts G- 7
5. Law Adjective— '5a£t^ and Crinx^s Distinguished S- 1 1
(J. In What Courts Torts are Cognizable 12 ir,
7. Administration of I^aw of Torts by Courts of Common
Law 10-10
S. Common- Law < )bligations lt)-24
0. Common-Law Remedies 2r> :{<)
10. Law Substantive— The Person Injured IH)-[V2
11. The Tort Feasor .'52 114
12. The Wrongful Conduct 34 37
13. How Liability for Torts may Attach 37-*2
14-16. Liability by Ratification 43-48
17. Why Liability Attaches, or the Theory of Torts 4S -54
18-21. Mental Attitude of Tort Feasor ZA-i'A)
22-2r». Connection as Cause (U-7S
27-28. Damage and Duty 78-lM)
2<.). The Riffht or Duty violated IM)
30. Common-!^ w Dutit s 00-04
31. Contract Duties jr»
32. Statutory Duties 9.V100
33. • I^w^f ul and Unlawful Conduct 100-102
34. Cause of Action as to Time and Place 102-105
Genial Summary 100-108
V.I— LAW OF TOUTS (ix)
XJkBLE :a O-f-NTk^Jr.
CHAPTER IL
VARIATIONS LX THE NuRMAl. RI«;HT T« » ?nL
35. VaHatioiM Based oo PriTa<>tze of A*rr*.r. or «i«ii»£zai
don l'»l>
:'/i. Public Aet»-Act« of State llt»-114
37-;{8. Ofmdact of Lectelaton 114-lW
aS^-4L CoDdiKt of Judicial Officers lld-125
41^-43. Coodoct of ExecmiTe Officers l:!.V137
44-45. Liability for Wrongs of SabordimiTe^ lo7-13i^
46. Prfrate Acts 139
47. Exerdae of SUtntorr RisMs 140-145
48. Exerciae of Ordinarr Rights 145-14^
40. Exerdae of DiadpUnarj Powers 14S-149
50. Rlirbta of Necesaitjr 14^15i>
51. Right of Prirate Defense 151-1:^4
52. Variationa Baaed on Statua 134
5f{. Inaane Persons 154-158
54-55. Infanta 15S-165
56. Dmnkarda 163-166
57. ConTlcta— Alien Enemies 160-167
58. Private Corporationa 167-173
50-60. Munidpal and Quasi Municipal Corporations 173-1S4
61, Corporationa, not Municipal, Engaged in Public Works .. 1S4- 188
62. Variationa Baaed on Conduct of Plalntur 189
63-6-1. Wrongdoing by PlainUff 18^198
65. Consent 199-204
LIABILITY ^OR TORTS COMMITTED BY OR WITH OTHERS.
m. In General 200
07. (;on(!ert In Action— Joint Tort Feasors 200-213
m. Liability of Joint Tort Feasors 213-215
60. Contribution between Joint Tort Feasors 215-216
70 7 1 . nolatlonsliIi)-Hu»band and Wife 216-223
72. landlord and Tenant 223-227
73 71. Imlopendent Contractor 228-238
ITt. MaNtor and Horvant 239
1i\ \)\. MiiHtor's Liability to Third Persons 230-280
1)2. MuHtcr'8 Liability to Servant 280
TABLE OF CONTENTS. XI
Section Page
03. Servant's LtoblUty to Servant 280-281
94-97. Servant's Liability to Master 282-285
98. Servant's Liability to Third Persons 286-291
99. Partners 291-293
CHAPTEB IV.
DISCHARGE AND LIMITATION OF LIABILITY FOR TORTS.
100. In General 294
101. Discharge or Limitation by Voluntary Act of Party 294
102. By Waiver 295-297
103. By Agreement 298
104-105. By Agreement before Damage 298-309
106-107. By Agreement after Damage 310-^320
108. Discharge or Limitation by Operation of Law 321
109. By Judgment 321-^26
110-111. By Death 326-335
112-113. By Statutes of Limitation 335-340
114. By Compliance with Statutory Requirements 340-^341
115-116. Discharge of Joint Torts— By Judgment 341-344
117. By Release 344-346
lis. By Waiver 346-347
OHAPTEH V.
REMEDIES.
119. In General 348
120. Statutory Remedies 348-349
121. Common-Law Remedies 350
122. Extrajudicial Remedies 350
123. Judicial Remedies 351-360
124-140. Damages 360-416
Xii TABUE OF CUMEATJi.
Pkrt n.
SPECIFIC WRONGS,
CHAPTER ITL
WUONOR ArKKCTING 8AFKTY AND FRKKI»M OF PERSON.
141. Falw» liiipriKouuiont— IVtiuiUoii ^ 417-421
142. Who Mnhlo 421-123
1 1:{. Di» riMiHOH 424
144 HO. .lUHtmoatlou 424-120
147. Mitigation 4;iu
HH. AnmuuU Ih'rtnltlou 431-133
HI). HattHy Dollultlon 434
VA). AMHUtilt and liattery— Foixv aiul luteut 435-138
151. Di'fonm'M 438
152. JuMtltlfatlou 439-144
153. M It iKUtlou Ill 116
CHAPTEB Vn.
INJl HIKS IN FAMILY RELATIONS.
I.'i4. Tho Family at i'ommou Iaiw 447-1-18
155. MaHtcM- and Servant 448-450
l.*»0. I'arnit and Child 451-153
157. Ac-tlons for Injuries to Child 45;J-454
158. Seduction, Abduction, etc 455
159. Separate Actions by Parent and Child 45&-4(i2
im. Actions by Child against Pai-ent 402^(53
1(51. Husband and Wife 4G3-104
162-irK], Action for Interference with Domestic Rights 4(54-469
1G4. Injuries to Wife-Double Cause of Action 409-472
CHAPTER Vm.
WRONGS AFFECTING REPUTATION.
l(r>. Defamation Defined 473-476
100. Publication— Libel, Slander, and Malicious Prosecution Dis-
tinguished 470-179
TABLE OF CO.NTENTS. Xlll
Swtlon Paff*
1«7. What Conirtltutes 479-483
1^58. Republication 483-484
1(50. Application to Plaintiff 484-48<;
170. nfltn^ff^ «« fl]f ^\uf nf T Jh^l an^ Rliimlor 486-4SS
171. Presumption In Actions for Slander 488-402
172. Presumption in Action for Libel 41Ki-497
173. Construction of Language Used 408-500
174. Signification of Words 500-512
175. Malice 512-520
176. Defenses 520-521
177. Common- Law Defenses 521
178. Justification 521
170. Truth 521-525
180. Privilege 525-544
181. Mitigation 544-550
182. Slander of Title or Property 550-554
/^83.
' 184.
185-191.
192-193.
194.
195-196.
197.
198.
199.
200.
201.
202.
203.
204.
205-206.
207.
MALICIOUS WRONG)
Malicious Wrongs in General 555-558
Deceit 558-560
The Wrongful Conduct of Defendant 560-58H
Conduct of Plaintiff 589-600
Resulting Damage 600-602
Malicious Prosecution 6^)2-604
The Judicial Proceeding 004-610
Termination of Proceeding 610-612
Parties to Proceeding 612-614
Malice and Want of Probable Cause 614-626
Damages (527-029
Distinction from False Imprisonment 63(M532
Malicious Abuse of Process 632-4534
Malicious Interference with Contract (534-036
Conspiracy 637-640
Strikes and Boycotts 641-652
XIV
TABLE OF CONTENTS.
VOL. ir.
CHAPTER X.
WRONGS TO POSSESSION AND PROPERTY.
Hectfon PnK<*
208. Duty to Respect Property and Possession— Remedies 653-CJ57
2r)9. Nature of Possession 057-658
210. Objects of Possession 658-600
211. Trespass— Definition 660-663
212-214. Possession to Maintain 663-673
215-216. Defenses 673-690
217. Remedies 690-695
218. Waste—Definition 605-696
21^222. Kinds of Waste 607-703
223. Remedies 703-706
224. Conyerslon— Definition 706-710
225. Title to Maintain 710-716
226-229. The Unauthorized Act 716-730
230. Parties 731-730
231. Remedies 737-743
CHAFTEK XI,
NUISANCE.
232. Definition 744-748
233. Rights Invaded 748-767
234-238. The Annoyance or Interference 7G8-781
239. Kinds of Nuisances 782
240. Public, Private, and Mixed 782-788
241. Continuing 788
242. Legalized 788-793
243-244. Parties to Proceedings against 793-798
245. Remedies 799-809
TABLE OF CONTENTS.
XV
Section
246.
24T.
248.
249.
250.
250a.
251.
252.
253.
254-258.
259-2G2.
263.
264-208.
269.
2T0.
271-274.
275.
276-278.
NEGLIGENCE.
Pajre
Essential Elements 810-815
Care— Degrees 816^2»i
Mental Element 820-825
Duty 825-821 i
Common-Law Duties 820
Course and Constitution of Nature 827-832
Use of One*s Own— Insurance of Safety 832-867
Knowledge of Danger 867-871
Capacity and Class of Parties to Wrong 871-875
Custom and License 875-81)7
Contract Duties 897-91H
Statutory Duties 918-934)
Violation of Duty 931-958
Damages 059
Contributory Negligence 959-961
Elements of Contributory NoKlijfom'o JW2-977
Comparative Negligence 978-979
Vicarious Negligence 980-989
CHAFTEB Xni.
MASTER AND SERVANT.
279. Master's Duties to Servant 990-1009
280. Master not an Insurer 1010-1013
281-282. Assumption of Risk by Servant 1013-1014
283. Ordinary Risks 1014-1019
284. Extraordinary Risks 1019-1020
285. Exceptions 1021-1029
286-287. Risk of Fellow Servants 1029-1037
288-289. Vice Principals .1037-1049
290-291. Concurrent Negligence of Master 1050-105;{
202. Statutory Provisions 1053-1056
CHAPTER XIV.
COMMON CARRIERS.
293. WHO are Common Carriers 1057-1059
294. Carriers of Goods 1059-1060
XVi TABLE OF CONTENTS.
Section Pnfre
295. Duties lom-lOTS
21)G. Carriers of Live Stock 10r3-lO70
297. Carriers of Baggage 107^1078
298. Carriers of Passengers 1078-lOlM
TABLE OF CASES CITED.
(Vol. 2, imges 1095-1254,)
INDEX.
(Vol. 2. pages 125.-»-1307.)
f
HAND-BOOK
OF THE
LAW OF TORTS.
Part I.
IN GENERAL.
CHAPTEB I.
GENERAL NATURE OP TORTS.
1. Definition.
2-4. Adjective and Substantive Law of Torts.
5. I^w Adjective—Torts and Crimes Distinguished.
6. In What Courts Torts are Cognizable.
7. Administration of law of Torts by Courts of Common Law.
8. Common-Law Obligations.
9. Common-Law Remedies.
10. Law Substantive— The Person Injured.
11. The Tort Feasor.
12. The Wrongful Conduct
13. How Liability for Torts may Attach.
14-16. Liability by RatificaUon.
17. Why Liability Attaches, or the Theory of Torts.
18-21. Mental Attitude of TcMi; Feasor.
22-26. Connection as Cause.
27-28. Damage and Duty.
29. The Right or Duty Violated.
30. Common-Law Duties.
31. Contract Duties.
32. Statutory Duties. *
33. Lawful and Unlawful Conduct.
34. Cause of Action as to Time and Place.
1.AW OF TORTS— 1
2 GUiEKAL 5ATCES 0»' TOBIB. [Ch. 1
DKVJJiiTIOH.
1. A tort is an act or omiBsion giTinff riae, by virtue of
the common-law jurisdiction of the court, to a ciyil
remedy which is not an action on a ccmtract.'
Dmratron.
The French word "torf* is deriyed from the Latin •torqnere," to
twist; **tortu8," twisted or wrested aside It is what is crooked,
as distinguished from what is straight It is the opposite of right
(droit).'
Definition by Reference to Reniedy,
Many attempts have been made with Tarring success to define a
"tort" The above definition of Mr. Pollock, while a negative one, Beema
to be least nnsuccessfnl and nnsatisfactorv. It is founded upon a
favorite and important distinction on which jnrispmdents lay great
stress, but with respect to which there is considerable difference in
terminology. It is evident that there are two main ideas set forth
by this definition : the conduct which constitutes a tort and the re-
dress which the law provides for the wrong done, — ^the cause of
action and the remedy. Accordingly, the definition may be con-
sidered as involving (a) a portion of the general law, which defines
the rights and commands the corresponding duties controlling the
relations of individuals to each other, — ^that is to say, a portion of
the law substantive; and as involving, also, (b) a portion of the
general law, which provides the means by which these rights and
duties are enforced and a violation of them is prevented or te-
dressed, — that is to say, a portion of the law adjective.* When a
1 Pol. Torts, ♦4. Similarly, Mr. Bishop, In Noncontract L^w. defines a
tort to be "one's disturbance of another In rights which the law has created,
either In absence of contract or in consequence of a relation which a contract
had established between the parties." Bish. Noncontr. Law, § 4. This deti*
nltion is not, hov/ever, so broad or so accurate as is Mr. Pollock's.
a Black, Law Diet. tit. "Tort"; Bouv. Law Diet tit **Tort"; Jac. Law Diet,
tit "Tort"; Co. Lltt. 158b; Whyte v. Rysden, Cro. Car. 20; Pol. Torts, •2.
s Mr. Bentham and the German writers adopted the division of the law into
law substantiTe and law adjective, or instrumental law. This arrangement
Mr. Austin regards as involving a double logical error— First, because much of
Ch. 13 DEFINITION. 3
right exists, there must be a coiresponding duty to obserTe that
right; and a tort or a wrong maj be spoken of either as a breach or
violation of a duty or an infringement of a rijcht.* The law sub-
stantive, or the law of rights and duties, is concerned with acts or
omissions complained of as a breach, or as a violation of a duty or
infringement of a right. The law adjective, or the law of pro-
cedure and remedies, deals with tribunals, the forms of actions, and
other means of prevention or redress.
Definition by Reference to Nature of Right,
This definition is clear and simple and accurate. It would not
appear that so much can be said for the current definitions based on
the Buhslantire law as tbus understood is the adjective or Instrumental; sec-
ond, because, if the law of procedure is called "droit adjectif," that term ought
to be extended to the law relating to rights and duties arising from civil
injury and from crimes or punishment He proposes as a substitute primary
or principle, as distinguished from secondary or sanctioning, duties. . 2 Aust.
Jur. lect. 45, §$ 1031-1034. lect 46. I 1041; and see 8 Harv. Law Rev. 187-106;
Pom. Rem. & Rem. Rights, c. 1. The terms "law adjective" and "law sutn
stantive" wiU be used in this book with considerable latitude of meaning.
According to perhaps what is the most recent contribution to the subject,
rights are antecedent and remedial. Antecedent rights are: (1) Rights in
rem; and (2) in personam. Rights in rem are rights available against all the
world.—as the proprietary right of an owner of a house or land. Rights in
personam are rights availing against a definite individual,— as a right of a
landlord to his rent. Antecedent rights are those which exist Independently
of any wrong having been committed, as in the above examples. The persons
clothed with them are in enjoyment of advantages not possessed by the rest
of the community. A remedial right is one given by way of compensation
whMi an antecedent right is violated. Remedial rights are also in rem and in
personam (the latter being by far the most common). Proceedings to obtain a
divorce, or against a ship in the admiralty division, are illustrations of the
former, while proceedings against individuals who infringe antecedent rights
are illustrations of the latter; and these are the subject of torts. Holl. Jur.
141; Shearw. Torts, 1. 2.
4 Whart Neg. § 24; Emry v. Roanoke, etc., Co., Ill N. C. 94, 16 S. E. 18.
A legal duty is that which the law requires to be done or forborne to a de-
terminate person, or to the public at large, and is a correlative to a right
vested in such determinate person, or in the public at large. Whart. Neg. §
24; 16 Am. & Eng. Enc. Law. 412. and cases cited. Austin's definition of a
right is that "a party has a right when another or others are bound or obligoi)
by the law to do or forbear towards, or in regard of, him." 1 Jur. lect. 16, p.
277, sub. 576.
4 QKNEBAL HATURB OF TOBT8. [Ch. 1
the difitiDction between rights in rem and rights in personam. Of
these, the one foand in Innes on Torts * may be fairly regarded as
the best: '^A tort is an nnaothorized prejadieial interfer^ice of
some person, by act or omission, with a right in rem of another per-
son." This might be called a '^ncus a non lucendo"'; or be said to
define what is unknown by something still more unknown.* Such
criticism is unjust in effect Indeed, as the misapprehension of
the distinction between a right in rem and a right in personam em-
bodied in the common law (largely through the classification of
Blackstone's Commentaries^ gives way to a more natural, his-
torically correct, and scientific division of the law,* it is not unlikely
that the ultimate definition of the term "tort" will b^ of this type.
This particular definition, however, is incomplete. If the person
whose right in rem is interfered with is not innocent, but has by
his own wrong contributed, as a proximate cause, to the interfer-
B Innes, Torts, introduction.
• The ordinary sense in which the action In rem is used, as distinguished
from an action in personam, may be illustrated by the cases which hold that
a seaman may recover wages either by libel in personam against the owners
or masters, or by libel in rem against the ship in courts of admiralty. Shep-
pard V. Taylor, 5 Pet 675-717; Temple v. Turner, 123 Mass. 125-128; Brands
V. Haven, Gil. 592; Rule 13 in Admiralty; 4 Law Q. B. 388. And see Hanley
V. 16 Horses and 13 Head of Cattle, 97 CaL 182, 32 Pac. 10; Dooley v. 17,500
Head of Sheep (Cal.) 35 Pac. 1011.
f Bir. Lawrence Maxwell, Jr. (solicitor general of the United States) has
pointed out that Blackstone "accepted an arrangement of the law, based upon
an analysis of Ijord Chief Justice Hale, which is now known to be indefensible
as a scientific classification. Blackstone supposed he was following the sys-
tem of the Boman Institutes, which, in fa<*t, he misconceived through a wrong
translation of 'Jus rerum,' and a misunderstanding of the distinction in Roman
law between *Jus rerum* and *Ju8 personarum.* The civil law was Uttle studied
in England, and Blackstone's arrangement passed there unchallenged until
John Austin took the field." 2 Mich. Law J. 305 (Aug. 1893). Mr. (>)oley, in
The Witness, replies to Mr. Maxwell, and recognizes the yalue of Mr. Austin's
work as beyond question, but doubts whether Justice is done to Littleton,
Coke, and Blackstone in the criticism that their work falls below that of Mr.
Austin in arrangement, in philosophical presentation, and logical analysis.
Mr. Dillon (Laws & Jur. Pa., not^) has been "often led to doubt the permanent
intrinsic value of Austin's labors."
8 See article by Sir Fredrick Pollock in 8 Harv. Law Rev. 187, 275, on "Divl-
flions of Law." And see 1 Aust Jur. lect 16.
Ch. 1] DKFINITION. 5
ence with his right is rem, there is no (actionable) tort. And it is
inaccurate. Interference with rights essentially, if not technically
or accurately, in personam, may constitute a tort*
Other Definitions.
It is quite common to define a tort by ringing changes on the
fallacious infelicity: "A tort is a wrong independent of a con-
tract.'* ^® To so define a tort is to ignore the fact that there are
other noncontractual wrongs. A breach of trust, adultery, or the
refusal to pay just compensation for a relief to a vessel in distress,
are wrongs; but none of them are torts, although they are all non-
contractual wrongs.^ ^ Such a definition is like a definition of a
horse as a quadruped. And, on the other hand, while lights in-
volve, in the law of torts, a distinction from those arising out of
• Pig. l^rts, 5, etc; Shearw. Torts, 2. Further, as to rights in rem and in
parsonam, see 1 Anst. Jnr. (Sd Ed.) p. 49; Wbart. Neg. | 24.
With respect to persons to whom and by whom duties are owed in tort, it
would appear that there are four classes: (1) Some duties are owed to all
persons by aU persons; that is to say, to and by indeterminate persons. Tlienc
duties have general regard to the three great fundamental rights in rem, as
to person, prop^ty* and reputation; as in (uses of fraud, asf^ault and battery,
negligence in its strict sense, and libel or slander. (2) Some duties are owed
by certain determinate persons to other i>ersons in corresponding situations;
that is to say, to and by determinate persons. This is a special modification
of the three fundamental rights which springs out of certain facts constituting
a quasi coutract or a quasi tort, and giving rise to an action ex contractu or
an action ex delicto. Statutory duties are often of this class. (3) There are
duties owed by persons in particular situations to all persons, or duties im-
posed on certain determinate persons to indeterminate persons. Thus the mas-
ter Is liable to the community for the negligence of bis servant ; the owner of
ferocious animals, of cattle, or of otlier things having an active tendency to
do damage, such as a reservoir, owes the duty of insuring the safety of the rest
of the community. (4) Duties are owed by all. persons to persons in a par-
ticular situation, or by Indeterminate persons to determinate persons. Thus,
every one is bound to respect the property of others; one. maliciously causing
a breach of contract is liable to all parties to the contract injured by the
breach. The whole community owes duties to persons in the possession or
ownership of property. Pig. Torts, 5-13, inclusive; Oliver Wendell Holmes.
Jr., 7 Am. I^w Rev. 652.
10 Clerk & L. Torts, 1 (with this addition: "For which the appropriate
remedy is a common-law action").
11 Pol. Torts, p. 3.
6 OE5ERAL 5ATURE OF T-^BTT?. [Cll. 1
contract, there im also a distinction from a rast arraj of other
rightif, — M right of trial bj jury, the ri^t to file a mechanic'B lien,
49r to foreclose a mortgage, or the ri^ita acqoired bj adverse pos-
tiennion. Thifi definition ia aa defectlTe aa wonld be the definition
of the home aft belonging to a daaa of animala independent of the
homed animalii.^' Moreover, a claaa of torts convenientlj called
qoaai torts arise oat of a state of facts of which a contract is an
<WMentiaI part. Indeed there is good anthoritj for saying that
when a contract is broken an action on the contract or an action on
the tort for the breach of the dnty imposed bj the contract maj be
brought**
The famooB saying of Bagley, J., in Hex ▼. Commissioners of Sew-
ers of Pagham/* is frequently converted into a definition: ^f a
man sniitains damages by the wrongful act of another, he is entitled
to a remedy; but to give him that title two things must concur,— dam-
uge to himself and wrong by another.*' This definition is fairly
subject to criticism. ^That an action in case will lie when there is
concurrence of actual damage to plaintiff and wrongful act by de-
fendant is a truism, yet, unexplained^ misleading." ** Perhaps
the most vital objection to this definition is that it leads to merely
verbal reasoning on the words ^damage" and "wrong.*'
THB ADJECTIVE AND SUBSTANTIVE LAW OF TORTS.
2. This definition of a tort may be conveniently con-
sidered as involving a portion of —
(a) The law adjective and
(b) The law substantive.
It Innes, Tortfl, | 6.
18 Rroom, Comm. (5th Kd.) 600; Ball, Torts, 4; Boorman v. Brown, 3 Q. B.
ftU-ri2(J; nich V. Now York Cent. R. Co., 87 N. Y. 382 (collecting and com-
anontlutf on dotlnitions).
1 4 U(>x V. (>onuniHRlonc*rH of Sewers of Pagham. 8 Bam. & G. 355-3G2.
iM'liiunborH V. Hn!dw!n, 01 Ky. 121, 15 8. W. 57. A very simple, but In
many irHpocts admirable, definition suggested is: **A tort is a breach of
duty lixed by nuinioipal law, for which a suit for damages may bo maln-
tntnod.** It will RubRO(iU(Mitly be seen that the duties for the vic^lation of
whiob an action In tort can be maintained against a common carrier or a
J
Ch. 1] ADJECTIVE AND SUBSTANTIVE LAW OF TORTS. 7
3. Under the law adjective will be considered the place
the law of torts holds with respect to other matters of
judicial cognizance; specifically:
(a) That the remedy for a tort is civil and not criminal;
(b) That the law of torts is administered by courts of
common law only; and
(c) The administration of the law of torts by the courts
of common law.
4. The law of rights, or substantive law of torts, will
be treated as involving:
(a) The parties to the wrong, "whether
(1) The tort feasor, the defendant in action on
torts, or
(2) The injured one, the plaintiff in action on
torts; and
(b) The wrong itself or the tortious conduct.
The worst objection to the title "torts/' perhaps, is that it puts
the cart before the horse; that legal liabilities are arranged with
reference to the forms of action allowed by common law for enforc-
ing them, — ^the substantive under the adjective law.** Accord-
ingly, to follow the historical developments, the law adjective natur-
ally comes up first for consideration : then the law substantive.
In this chapter it will be attempted to briefly discuss the defini-
tion on these lines, and to show in compact form the general nature
of a tort, and of the principles on which liability for it is based.
The remainder of the general part will be devoted to the develop-
ment and further discussion of matters which will be briefly stated
in this chapter.
master are really fixed by municipal law, althouf^h they may be also incor-
porated in a contract
i« Oliver W. Holmes, Jr., in 7 Am. Law Rev. 652-659. **In the common law
the only sure way gf aBcertainini; legal obligation, and the most convenient
way of arranging this, is by considering the remedy by which the obligations
are enforced. Rights and duties, so called, existing beyond the limits of legal
remedy, may be matter of enlightened curiosity and moral and metaphysical
speculation, but they are not violations of common law.*' American note to
Coggs V. Bernard. 1 Smith, Lead. Cas. 411,
GKNCRAL KATUBS OP TOBIB. [Ch. 1
LAW ABJECTIVE— TOBT8 AHI) 0BIME8.
6. The law of torts is the common border land of civil
and criminal and of public and private law. The same
conduct may be both a tort and a criminal wrong, but a
criminal wrong is not necessarily a tort, nor is a tort
necessarily a criminal wrong. A tort diifers from a crime —
(a) As to the mental attitude of the wrongdoer.
(b) As to the consequences of the wrong, and
(c) As to redress or remedy.
TorU and Oriviea not Convertible.
The same Btate of facts may constitute either a tort or a crime.
Indeed most crimes may also be regarded as torts. Thns, one com-
mitting an assault with an intent to kill commits a crime for which
he may be arrested, and does damage which may be recovered by the
|)erf$on assaulted in a civil action. Similarly, seduction, libel, nui-
sance, trespass, conversion, and even deceit may have both tortious
and criminal aspects.
Until the time of Bracton (A. D. 1250) personal injuries were not
the subject of civil action.^ ^ Even after that period, these subjects
were treated under the head of criminal law, and the defendant in
such cases, when sued by civil process, was compelled not only to
compensate the plaintiff but also to pay an attendant line to the
king.^* A trace of this quasi criminal nature of a tort is left in the
allowance to the injured person of punitive or exemplary damages
where the wrong is willful or malicious; because malice is the mens
rea which is an indispensable ingredient of a crime.
A criminal wrong is not always a tort. Thus, treason cannot be
called a tort. Kor does the violation of a public duty always create
17 1 Spence, 121.
IB Pol. Torts, § 3; Innes, Torts, § 33; Finch, Com. Law (1654; Ed. 1759)
198. "Civil redress was often given in criminal actions." Bigelow. Lead.
Cas. 18. And see historical portion of note to "Deceit," "Assault and Bat-
tery," "Trespass upon Property," and "Conversion." For example, the early
writ of deceit in the register ran: "The King to the Sheriff of L., greeting;
"If A. shaU make you secure, etc., P. & C. as well to answer us as well as
the aforesaid A., wherefore he» etc." Fitzh. Nat. Brev. 90a, 97b. So, in ap-
Ch. 1] LAW ADJECTIVE — TORTS AND CRIMES. 1)
■
a right of action in a private citizen damaged thereby.** A publii;
nuisance is a criminal wrong. It may or may not be also a private
wrong or tort. It is not a private wrong unless the c<Hnplaining
party has suffered some special hurt apart from the injury done the
whole community.'^ Many torts, like simple negligence, malicious
interference with rights, accidental trespasses, cannot be regarded
as criminal wrongs.^* Even nuisance may be a civil and not a
criminal wrong.*" "Accountability for civil injuries is even greater
than for criminal acts." *■
InUiition.
Intention is the essence of criminal liability. In some classes of
cases of the law of torts this is also true, but in others, and perhaps
ordinarily, the law of torts does not depend upon intention, or the
mental attitude of the wrongdoer. In consequence, many persons
incapable of committing a crime because of mental incapacity are
held liable for torts. The difference which the element oi intention
involves in the law of crimes and torts is well illustrated in the case
where one man points a pistol which he knows is not loaded at an-
other. In such a case he cannot be arrested for criminal assault,
because of absence of any possible intention to commit an assault.**
peal of robbery, restitution of tbe goods taken, as well as punishment for the
felony, was awarded. Bi^elow, Lead. Cas., historical portion of note to
•*Tre8pas8er8 upon Property"; 3 Bl. Gomm. 146.
19 Ward V. Hobbs, 4 App. Cas. 13.
20 Wilkes V. Hungerford, 2 Blng. N. C. 281; I/)ng v. Minneapolis (Minn.)
(53 N. W. 174; Henly v. Mayor, etc., 5 Blng. 91; Proprietors, etc., of Quincy
Canal v. Newcomb, 7 l^etc. (Mass.) 276; Barnes T. Racine, 4 Wis. 474.
21 Contributory negligence in carelessly exposing property Is no defense to
proceeding for Its theft. Clark, Cr. Law, 260.
22 Com. V. Webb, 6 Rand. (Va.) 726.
28 Agnew, J., in McGrew v. Stone. 53 Pa. St. 43(^444.
24 Chapman v. State, 78 Ala. 46.3; Chase, Lead. Cas. 70; 2 Green, Cr. Cas.
271a; State v. Sears, 86 Mo. 109; McKay v. State, 44 Tex. 43; State v.
Godfrey, 17 Or. 300, 20 Pac. 625. But see People v. Lilley, 43 Mich. 521.
5 N. W. 982; People v. Ryan, 55 Hun, 214, 8 N. Y. Supp. 241. There
would seem to be no sound basis for this distinction. Ames, Cas. 11.
See Com. v. White, 110 Mass. 407; State v. Shephard, 10 Iowa, 126; State
V. Smith, 2 Humph. 457; People v. Jklorehouse, 53 Hun, 638, 6 N. Y. Supp.
763; Richels y. State, 1 Sneed (Tenn.) 606; Morison's Case, 1 Brown. Just.
R. 394; People v. Conner, 63 Hun, 352, 6 N. Y. Supp. 220. Accordhig to
10 GEXESAL SATVET OF TOMES. [Ch. 1
Tlfte peinon at whom the pistol irw piiinted, eren if be did not know it
wa« loaded, maj recover in tort.*' Intoit to inflict bodilj harm is not
necesKuily irf the easence of aasaidt and battery regarded as a tort.**
Tlie injury snch persons suffer is the same. Again, if one man
willfullv beat another. pimitiTe damage can be recovered; bnt if
the person who did the beating was insane this wonld at least miti-
gate damages; bat under snch circumstances there can be no con-
viction of assault.*^ iSo, if cme man sells the property of another
under the honest but mistaken belief that be has title to it though
he purchased it from a person who stole it, he cannot be convicted of
larceny." But imder such circumstances he would be liable to the
original and true owner of the property in an action on the tort,
called conversion, even though he was a broker, and in reality made
out of the transaction nothing more than a commission.**
Consequences of Wrong.
A crime is an injury to the whole community, — the state suffers.
A tort is an injury to a private person, — the individual suffers. A
crime is always a violation of a public law, and a tort is often a vio-
lation of a private law, and sometimes also of public law.** In con-
Ktopbens (Dig. Cr. Ijiw, art. 241), the act of xsalng a frostnre towards another,
fflvlnf? him reasonable ground to believe that the person using the gesture
meant to apply aetunl force to the person of another, directly or indirectly.
28 Beach v. Hancock. 27 N. H. 223. 59 Am. Dec. 373.
«• Post, p. 431, "ABsault and Battery."
2TPost, p. 308, "Damage." And see M'Xaghten's Case. 10 Clark & F.
172; Walker v. People, 88 N. Y. 81.
*• Desty, Am. Cr. Law. S 145J. And see Reeves ^ State, 95 Ala. 31. 11
South. 158-1(58; U. S. v. Harper. 33 Fed. 471.
«» HolUns T. Fowler, L. R. 7 H. L. 757.
«o BlAckstone defines civil Injuries as private wrongs, concerning indi-
viduals only; crimes as public wrongs, affecting the whole community. Com-
menting on this, Mr. Austin says: "If Blackstone had but reflected on his
own catalogue of crimes, he must have seen that this is not the basis of the
capital distinction in question. Most crimes are violations of duties regarding
flotormlnnte persons, and therefore affect individuals in a direct or proximate
nmnnor. Such, for instance, are offenses against life and body,— murder,
mayhem, battery, and the like. Such, loo, are theft and other offenses
against property. But, indei)endently of this, Blackstone*s statement of tlie
distinction is utterly untenable. All offenses affect the community, and all
offonsos affect individuals. Some are not offenses against rights, and are
oil. 1] LAW ADJECTIVK TORTS AND CRIMKS. 11
sequence, while a tort may be settled by tlie sufferer, a crime not
only cannot be condoned,'^ but shielding an offender may be an of-
fense.**
Remedy,
Bedress for a crime is punishment by the state; the remedy for a
tort is ordinarily compensation, and in some cases punitive damages,
to the person injured. The law of crimes is administered by crim-
inal courts with appropriate procedure; the law of torts is adminis-
tered by civil courts under different practice. In France the two
proceedings are combined so that the criminal is punished and dam-
ages are awarded by one process.
The English law contained an anomaly called 'trespass merged
in felony.'* Its principle, recognized perhaps without due considera-
tion, was that the private right of action was suspended until the
public prosecution was completed, whenever the tort amounted to a
felony. Until 1870 conviction of a felony forfeited the estate of the
felon to the crown. There could accordingly be no effective remedy
after conviction. In many cases the right of the individual would
have been "merged in the felony." There is good ground for believ-
ing that this rule would not now be sustained by English courts.
In the United States the civil and criminal proceedings have been
kept separate. Both may be begun at the same time, or either may
precede or succeed the other. [Neither acquittal nor connction of a
criminal charge bars a civil action. In some states, however, it re-
quired statutory enactment to abrogate the English rule.**
therefore, of necessity, pursued directly by the sovereign or by some subordi-
nate representing the sovereign." 1 Aust. Jur. lect. 17, p. 281.
»i Clark. Cr. Law, 7; Fleener v. State, 58 Ark. 98, 23 S. W. 1 (embezzle-
ment); State V. Tall, 43 Minn. 273, 45 N. W. 449 (forgery); Com. v. Slnttery.
147 Mass. 423. 18 N. E. 399 (ravishment). As to effect of "consent," see post.
p. 203.
»2 Clark, Cr. Law, 329.
«« Wells V. Abrahams, L. R. 7 Q. B. 554; Ex parte Ball, 10 Ch. Div. (5G7-G71;
Roope V. D'Avigdor, 10 Q. B. Div. 412; Lutterell v. Reynell, 1 Mod. 282;
Phillips V. Eyre, L. R. 0 Q. B. 1; Pol. Torts; Ring. Torts; Ilast. Torts, 8.
And see article hi 98 Law T. 227; Williams v. Dickrason, 28 Fla. 90-97, 9
South. 847; Boston R. R. Corp. v. Dana, 1 Gray, 8:i-9G; Pettingill v. Rideout,
6 N. H. 454; People v. Walsen (Colo. Sup.) 28 Pac. 1119; Bundy v. Magiuess.
76 Cal. 532, 18 Pac. 668; Howk v. Minnick, 19 Ohio, 402; Newell v. Cowan,
12 GCNiJL4L NATCRC OF 10RT8. [Ch. 1
nf WHAT CIVH. COUBTS TOBT8 ABE COGITIZABLE.
6. A tort is cogrnizable in courts of cominon law only,^
and not in
(a) Divorce courts;
(b) Ecclesiastical or probate courts;
(c) Courts of admiralty;
(d) Ck>urts of equity.
This, strictly speaking, may be an artificial restriction of the
natural and legitimate meaning of tlie term norf* There certainly
are legal wrongs essentially identical with the substantive elements
of a tort recognized by courts which are not courts of common law.
For the sake of convenience, however, whenever the term "tort"
IS used in this book it is treated as referring to the common law of
torts only. It is to be noted, mcweover, that the best English
authorities (and they are entitled to special weight, because of the
distinct separation of English courts) would sustain the text in
limiting a tort to courts of common law.
Tortd not Recognized by Divorce Cburte.
"Formerly an injured husband could sue the seducer of his wife
in an action of criminal conversation. The seduction, therefore,
was a tort. As the law now stands, the husband's remedy is in the
divorce court. The alteration is merely in procedure, • • ♦
for the same redress is given as before, and on the same principle.
Yet it would seem that, as the essential character of a tort is the
30 Miss. 402; Newkirk v. Dalton, 17 111. 413; Harris, Cr. Law, 1-6; Rev. St N.
Y. pt. 3, c. 4, § 2; St. Me. 1844, c. 102; Plumer v. Smith, 5 N. H. 553; White v.
Fort, 3 Hawks (X. C.) 251; Knox v. Hunolt, 110 Mo. G7, 19 S. W. 628; Austin
V. Carswell, 67 Ilmi. 579, 22 N. Y. Siipp. 478; Lofton v. Vogles, 17 Ind. 105.
And see cases collected in 1 Knight, Killing Cas. The English rule was at one
time recognized in some of the states as being there in force. It has been held,
for instance, that an action for conversion of a stolen slave could not be main-
tained against the thief before institution of a prosecution against him for the
felony. Martin v. Martin, 25 Ala. 201. And see Grant v. Moseley, 29 A\su
302-304; Boody v. Keating, 4 Greenl. (Me.) 164.
84 Pol. Torts, ii 3, 4.
• <3h. 1] IN WHAT CIVIL COURTS TORTS ARE COGNIZABLE. 13
form of the remedy, the change must be considered as taking the
redaction of a married woman out of the class of torts." ''
Twte not Recognized by Ecclesiastical or Probate Courts,
English ecclesiastical courts have never been recognized in
America.'* A number of matters within the jurisdiction of those
-courts in England have been transferred to courts of common law
in this country. Thus the common law, in its early stages, re-
fused to recognize the idea of property in a corpse, and treated it
as belonging to no one except the church. In the United States
the right to possession of a dead body, for the purposes of preser-
vation and interment, in the absence of testamentary disposition of
it, belongs to the family of the deceased; and any infraction of this
right, as by mutilation, will entitle to the recovery of damages by an
action on tort in a court of common law.*^
In early days there was an offense termed ''defamation/' as the
publication of blasphemous words,*' for which the ecclesiastical
court provided a remedy. In this proceeding no ''damages could
be awarded," says Mr. Townshend. "The defamer might be cen-
sured, compelled to recant the defamation, to perform penance and
l>ay costs, and, for disobedience to the court's decree, be excommuni-
-cated.** The jurisdiction of ecclesiastical courts over crimes like
incest led to cognizance of certain malicious prosecutions.^* In
America, all civil proceedings for defamation and malicious prose-
cution are brought in courts of common law.
"While, in the process of gradual development, most American
probate courts have been invested with much larger powers than
SB Clerk & L. Torts (1888) 1. In some states this action still lies in the
•courts of common law.
»« Young V. Ransom, 31 Barb. 49. And jrenorally, see Smith, Ecc. Law. As
to ecclesiastical law in England at the prenent time, see Boyer v. Bishop [lStT2]
App. Cas. 417; Read v. Bishop, Id. 644.
3T I^rson V. Chase, 47 Minn. 307. 50 N. W. 238; but see Cook v. Walley.
1 Colo. App. 163, 27 Pac. 950. Further, as to law of dead bodies, see Hackett
▼. Hackett (R. I.) 26 Atl. 42; Wynkoop v. Wynkoop, 42 Pa. St 293; Renlhani
V. Wright, 125 Ind. 536, 25 N. E. 822; Snyder v. Snjdor, 60 How. Prac. 368.
«8 Odger, Sland. & L. 350-352.
»» Townsh. Sland. & L. § 10; Jac. Ijiw Diet. tit. "Court Eccl."
*o Fisher v. Brlstow, 1 Doug. 215; post, p. 602. "Malicious Prosecution."
14 GENERAL KATTRE OF TORTS. [Ch. 1
the early English test amen tary courts, yet in none of them have there
ever been rested any such extensive powers. Ordinarily the func-
tions of sneh courts have been limited to the control of the dcvola-
tion of property upon the death of the owner, and have not been
extended to collateral matters involving controversies between the
estate and third parties. These, if an adjudication of them becomes
necessary, have generally been left to be tried in the appropriate
action in the courts of general jurisdiction." Accordingly, where
the claim arises on tort, the claimant may bring his action against
the personal representative in the district or other court of compe-
tent original jurisdiction, but not in the probate court^^
Torts not Recognized by Courts of Admiralty,
Courts of admiralty have jurisdiction over the whole subject of
damages on the high seas. Maritime torts are of the same nature
as common-law torts, with the element of locality added, and the
consequent jurisdiction of the courts of admiralty.** The law as
to maritime torts, however, is not always the same as the law relat-
ing to common-law torts/' This should be carefully borne in mind,
in dealing with admiralty cases as authorities for propositions as to-
ordinary torts.
Wherever the common law is competent to give it, a suitor does
not lose his right to use a common-law remedy because a tort is
committed on the high seas, or other waters subject to the admi-
ralty jurisdiction. Thus common-law remedies apply to a collision
on the Ohio river. Ohio courts can administer it. It is not neces-
sary to go into the courts of admiralty.** When damage is done
41 Mitchell, Jm in Comstock v. Matthews, 55 Minn. Ill, 56 N. W. 583.
42 In re Fassett, 142 U. S. 479. 12 Sup. Ct 2U5; Ben. Adm. (2d Ed.); Phila-
delphia, W. & B. Ry. Co. v. Philadelphia & H. de G. Stoam Towboat C5o., 2:i
How. 209; Greenwood v. Town of Westport, 53 Fed. 824. An injury to a
vesBel from negligence in operating a draw in a drawbridge is a maritime
tort, and a court of admiralty will entertain an action therefor. Greenwood
T. Town of Westiwrt, CO Fed. 560. The wrongful arrest on shore of deserting
seamen, by the procurement of the master, does not constitute a maritime
tort. Bain v. Sandusky Transp. Co., 60 Fed. 912.
48 As in cases cf collision, post, p. 978, note 686, "Comparative Negligence."
44 Schoonmaker v. Gilmore, 102 U. S. 118; McDonald v. Mallory, 77 N. Y.
546-^6; Percival v. Hickey, 18 Johns. 201.
Ch. 1] IN WHAT CIVIL COURTS TORTS ARE COGMZABLB. 15
wholly on land, the fact that the cause of damage originated on the
water, subject to admiralty jurisdiction, does not make the cause
one for admiralty.*' The law administered in the admiralty courts
of this country, od the other hand, embraces, not merely what is pe-
culiar to the maritime law, but also much of the municipal local law,
derived from the constituted order of the states, and all competent
state and national legislation. What is peculiar to the maritime
law, or that which, by its interstate or international relations,
would be incompatible with diverse state legislation, can be changed
by congress alone, which, by implication, has the general power of
legislation on the maritime law. This does not exclude state leg-
islation upon maritime subjects of a local nature, nor legislation
under the police power for the preservation of life or health, not
incompatible with interstate and international interests, in the
absence of legislation by congress. A state statute giving damages
for death by negligence, as applied to a negligent collision on navi-
gable waters within the state, does not infringe those conditions,
and is valid.**
Tori8 not Recognized in Courts of Equity.
Courts of equity afford redress in cases where the common law
affords no remedy, or an inadequate one. The normal remedy for a
tort — compensation — is administered by the court of common law,
not by a court of equity. When that remedy is sufficient, equity
will not interfere. But there are cases where equity's peculiar
remedies are necessary to do justice, and in these equitable inter-
ference is always granted.*' In other words, the jurisdiction of
equity may be concurrent
The tendency is to do away with the artificial system which kept
4B The Plymouth, 3 Wall. 20.
4« The City of Norwalk, 55 Fed. 9S. See Shoiiook v. Ailing, 93 IT. S. 99.
Damages given by a state statute for death by negligence may be recovered
on a libel in i>erRoiuim for death by a negligent collision on navigable waters
within the state (55 Fed. 98, afflrme4l). The Car Float No. 16. 9 C. C. A. 521,
61 Fed. 361; McCullough v. New York, N. H. & H. R. Co., Id.; New York &
N. Steamboat Co. v. The Transfer No. 4, Id.
4T Post, p. 353, "Remedies." As to the application of the equitable dortrine
of subrogation to conversion, see Tobin v. Kirk, 73 Ilun, 229, 25 N. Y. Supp.
931.
16 GKNERAL NATURE OF TORTS. [Ch. 1
equity and common-law conrts and proceedings distinct. Under
the provisions of the law of so-called ^H^k>de States," this has been
essentially accomplished. How it could have been done at common
law is to be seen in the Pennsylvania system of administering
equity through common-law forms.** The two systems of juris-
prudence must, of course, remain separate. In some cases the in-
jured one may elect to seek an equitable remedy under equitable
principles, or to pursue his right to damages for tortious wrong
under the common-law principle. Thus, in case of deceit, the in-
jured one may sue in tort for damages produced by misrepresenta-
tion, or he may go into equity, have a fraudulent contract reformed,
and then specifically enforced.** At one time the courts of equity
and the courts of common law had concurrent jurisdiction to g^ve
compensation for fraud.**
ADMINISTBATION OP THE LAW OF TORTS BY OOTJBTS OP
COMMON LAW.
7. The common law provided two forms of personal a^
Hon —
(a) Ez contractu and
(b) Ex delicto.
Actions at common law were commenced, in Its early day, by the is-
suance of an original writ. The ancient forms of writs were kept in
the registrum brevium.** There were three prescribed forms of ac-
4 8 Laussatt on "Equity Administered through Common Law Forms in Pa."
*o Fetter, Eq.; Pom. Eq.; Bisph. Eq.
BO Slim V. Crouclier, 1 De Gex, F. & J. 401; Peelc v. Gurney, L. U. 13 Eq.
79. But see Wigsell v. School, etc., 8 Q. B. Dlv. 357; Whitham v. Kersliaw,
16 Q- B. Dlv. 613.
51 The common-law writs were always written (2 Reeves, Hist. 266); were
settled verbatim by the time of Edward III.; were printed in the register in
the reign of Henry VIII. (4 Reeves, Hist. 429); and were declared fixed and
immutable, unless clmngcd by authority of parliament (Bractou, de ex. lib.
6, c. 17, § 2). According to Lord Coke, the register antedates the Conquest
<A. D. 1066). Pref. 10 Uep. p. xxiv.; 4 Inst. 140; Dugd. Orig. p. 56. Mr. Blge-
low, as to this statement (Lead. Cas. 16), cites as authority for its improbability,
Hicke*8 Thesaurus Dissertatio Epist. p. 8.
Ch. 1] LAW OF TOKTi ADaCINISTERED BY COUKT8 OF COMMON LAW. 17
tions which it recognized, distingnished by subject-matter, — as real,
personal, and mixed. Keal actions were for the specific recovery of
real property only. For a long time they have been extinct Mixed
actions wei*e for the specific recovery of real property, and for dam-
ages for an injury thereto, — ^as ejectment Personal actions were for
the recovery of a debt, or a specific personal chattel, or of damagt^s
for a breach of contract, or of satisfaction in damages for some in-
jury to the i)er8on or to real or personal property. Personal actions
were, in form, ex contractu or ex delicto.**
Among the earliest actions ex delicto was the action of trespass.
This lay for the recovery of damage for injury to the person, prop-
erty, or relative rights of another; but only where such injuries
have been committed with force, actual or implied.*' It lay only
where there was a direct, immediate invasion of another's right.
When the wrong was with force to the person, as in assault and
battery or false imprisonment, it was trespass vi et armis.** When
it consisted in unlawfully breaking a man's close, it was trespass
quare clausum fregit** When it was committed by carrying away
his chattels, it was trespass de bonis asportatis.**
However, as new causes of action arose, no matter how great wan
his wrong, the individual, if he could find in the register of writs no
writ to fit his case, had no remedy. To supply this deficiency in the
law adjective, the celebrated statute of Westm. 11. (13 Edw. I.)
was enacted. This provided that as often as it should happen that
in one case a writ was found, and in a like case (in consimili casu)
falling under the same right, and requiring like remedy, no writ
was to be found, the clerks should agree in making a writ, or adjourn
the complaint until, and refer the matter to, the next parliament.
Under this statute new writs were copiously produced." Out of it
»2 Chit PL 110: Ship. Com. I^w PI. 2.
»» Ship. Com. Law PI. 72. Laws as to trespass not fully settled until time
of Edward I., although mentioned by Bracton. 2 Reeves, Hist. 149.
»*Id. Trespass vi et armis lay for ne$;li{?ence. Pcrcival v. Hickey, 18
Johns. 2.">6.
^^ Ship. Com. Law PI. 74. Generally, as to forms of trespass, see 3 Bl.
Comm. 120, 151. And see 1 Chit. PI. 102. 193.
»«Id. 73.
•7 3 Bl. Comm. 40; Steph. PL 6b
lAW OF TOBTS— 3
18 GENERAL NATURE OF TORTS, [Ch. 1
arose the celebrated actions on the case, viz. action of assumpsit,
which became in time an action ex contractu although it retained
traces of the ex delicto character of its origin; the action of detinue,
which is sometimes regarded as ex contractu, and sometimes as ex
delicto, and sometimes as neither; '• the action of conversion; and
(the almost distinctive '• action ex delicto) trespass on the case.
This action (trespass on the case) lay, not for direct or immediate in-
vasion of another's right, but for conduct in which the wrong con-
sisted in consequential damage."® In trespass, the liability was abso-
lute. In case, the liability was dependent on results. Case lay for
injury to absolute rights, not involving force, and where the dam-
ages were consequential, as for keeping dangerous animals.** It lay
also for invasion of relative rights, as seduction, or alienation of
affection.** It lay also especially for the large class of cases
known now by the vague name of "negligence." •' When trespass
lay, and when case, was, at common law, an important question
of pleading, because if the pleader mistook his remedy, he would
be dismissed from court.** Since the abolition of forms of action,
68 Pol. Torts; Glib. 6; Steph. PI. 18b; Peabody v. Hayt, 10 Mass. 35.
»» Mills V. U. S., 48 Fed. 738; 1 Chit. 99; Browne, Action, 318, note f.
•0 CJooper v. Tendon, 102 Mass. 58; Ship. CJom. Law PL 45, and cases there
clte<l.
ei Saroh v. Blackburn, 4 Car. & P. 297; Stumps v. Kelley, 22 III. 140. And
see, generally. Cooper v. Landon, 102 Mass. 58; Singer v. Bender, 64 WU.
172, 24 N. W. 903; Henry v. Ry. Co., 139 Pa. 289, 21 Ati. 157.
«2 ClouKh V. Tenney, 5 Me. 446; Homketh v. Barr, 8 Serg. & R. 35.
63 Coggs V. Bernard, Smith, Lead. Cas., 2 Ld. Raym. 909; Samuel v. Judio»
6 East. 333; Dearborn v. Dearborn, 15 Mass. 315; Church v. Mumford, 11
Johns. 479; Hamilton v. Plainwell Water-Power Co.. 81 Mich. 21. 4."> N. W.
648. As to the distinctions as to force and immediate and direct or imme-
diate and consequential injuries, see 1 Chit PI. (10th Am. Ed.) 140, and cases
cited; Cotteral v. Cummins. 6 Serg. & R. (Pa.) 341; Wlnslow v. Beal, 6 CJall
(Va.) 44; Scott v. Shepherd. 3 Wlls. 403; Beckwith v. Shordike, 4 Burrows,
2093.
«* The difference between trespass and case Is well lllu«?trated by Espi-
nasse. "Trespass on the case is an action brought for the recovery of dam-
ages for acts unaccompanied with force, and which In their consequences
only are injurious; for, though an act may be in Itself lawful, yet if, in its
effects or consequences, it is productive of any injury to another, it subjects
the party to this action." 2 Esp. N. P. 597. [Cf. Wakeman v. Robinson. 1
Ch. 1] LAW OF TORTS ADMINHTKRKD BY COURTS OP COMMON LAW. 1*)
the mere technical qoestion of procedure has lost importance. •" But
the deep-seated distinctions in the law substantive involved are as
much legal battle grounds as ever.**
8. Through these two classes of personal actions, the
common law aaministered foiir kinds of obligations,^ or
provided remedies for four kinds of recognized substan*
tive rights, viz.:
(a) Contracts piire and simple;
(b) Quasi contracts;
(c) Torts pure and simple;
(d) Quasi torts.
Contradm
The common law administered obligations of contracts pure and
simple. All true contracts grow out of the intention of the parties
Bing. 213.] Thus, where the defendant put up a spout on his own premises,
this was an act lawful in itself; but when It produced an injui-y to the plain*
tift by conveying the water into his yard, trespass on the case was adjudged
to lie for such consequential injury. Reynolds y. Clarke, 1 Strange, G.'$4. So
shooting of a gun, which in itself is an indifferent and lawful act, yot whon
by it the plaintiff's decoy was injured this action was held to lie. Keeblc v.
Ulckeringlll, 11 Mod. 131. Again, where the plaintiff tleclared in caso tliat
the defendant furiously, negligently, and improperly drove his cart a^'ainnt
the plaintiff's carriage, that it was overturned and broken, this was held ill
on demurrer, and that the action should be trespass vi et arm is. Day v.
Edwards, 5 Term R. 648. As to election between trespass and case, see
BUn V. Campbell, 14 Johns. 432. Cf. Percival v. Hickey, 18 Johns. 250.
And see Wilson v. Smith, 10 Wend. 324; Seneca R. R. Co. v. Auburn, 5
HilL 170.
•5 New Orleans J. & G. N. R. Co. v. Hurst, 36 Miss. 660; Howe v. Cooko,
21 Wend. 28. And see Ricker v. Freemati, 50 N. H. 420.
ofl The importance of the distinction from a theoretical standpoint is mani-
fest in discussions of the ultimate basis of liability in tort. Practically it is
of great moment in determining, for example, connection as cause (con-
spicuously in questions of damage), defense available (as of oontiibutory
negligence, independent contractor), the kind and extent of proof required
of plaintiff (as the exercise of due care under the circuinstances, or the
breach of absolute duty). See Holmes v. Mather, L. R. 10 Exch. 261; John-
son V. Philadelphia & R. R. Co., 163 Pa. St. 127. 29 Atl. 854.
•T The propriety of this use of the term "obligation" has been questioned.
20 GENKRAL NATURE OF TORTS, [Ch. 1
to the transaction, and are dictated only by their mutual and accord-
ant wills. When this intention is expressed, the contract is ex-
pressed. When this intention is not expressed, but may be inferred,
implied, or presimied from circumstances as really existing, then,
and then only, is the contract thus ascertained properly called an
"implied contract" •■ In all cases of contract the parties are deter-
minate, and the rights In personam.
Quad Contract.
The obligation of a quasi or constructive contract was imposed by
law in certain cases, without reference to the intention of the parties,
and was administered through personal actions, ex contractu. Here
the parties are determinate, but the right is not so clearly in per-
sonam. The substantive right was not contractual, but the com-
mon law, providing no strictly appropriate remedy, invented the fic-
tion of an implied contract to strain an action ex contractu into use.'**
Thus a judgment for damages was called a "contract of record," to
Mr. Anson (Ans. Cont 6) says that it is of the essence of obligation that th<»
liabilities which it imposes are imposed on definite persons, and are them-
selves definite; the rights which it creates are rights in personam. Even,
however, If this be the case, certain torts are based upon rights In personam.
The term as here used is, moreover, employed in this sense by Bentham, Aus-
tin, Pollock, and many other writers of eminence. And see Leake, Cont. 3;
Clark, CJont. 13. "There are many (obligations not within the definition of con-
tract, all of which require the consent or agreement of the parties." Field, J..
in Mllford v. Com., 144 Mass. G4, 10 N. E. 516; Murdock Parlor Grate Co. v.
Com., 152 Mass. 28, 24 N. E. 854. According to Austin, the difference be-
tween sanction and obligation is this: "Sanction is evil, incurred or to be in-
curred by disobedience to command. Obligation is liability to that evil. In tho
event of disobedience. Obligation regards the future. An obligation to a
past act, or an obligation to a past forbearance, is a contradiction In terms.
If the party has acted or foreborne agreeably to the command, he has fulfilled
the obligation wholly or in imrt. And here there is a certain difference be-
tween iwsitlve and negative duties. The performance of a positive duty ex-
tinguishes both the duty and the coiTcspondlng right. A negative duty ip
never extinguished by fulfillment, though, if the right be extinguished by an-
other cause, the duty ceases. 1 Aust. Jur. 311, lect. 22.
•8 2 Bl. Comm. 442; Clark, Cont. 752; Hertzog v. Hertzog, 29 Pa. St 465-
467; Mclntyre Tp. v. Walsh, 137 Pa. St. 30li, 20 AU. 706; McSorley v. Faulk-
ner (Com. PI. N. y.) 18 N. Y. S. 4C0.
«» Clark, Cont. 753.
Ch. 1] LAW OP TORTS ADMINISTERED BY COURTS OF COMMON I AW. 21
allow its revival by actions ex contractu.' • Again, where one has
unjustly enriched himself at the expense of another, as where he has
been paid money by mistake, and without giving anything in return,
there is clearly no agreement, expressed or implied, between the par-
ties. It would, however, be manifest injustice not to make the one
enriched by mistake disgorge. The common law, to supply the de-
ficiency of its remedies, invented the fiction of implied promise on
the part of him to whom the money was paid to repay J ^ Accord-
ingly money paid under mistake could be recovered on an implied
promise, by action ex contractu, called indebitatus assumpsit.'* And
finally a quasi contract may also be said to be founded upon statutory
official or customary duty.'*
Tcnis.
The common law administered also the obligation of torts, pure
and simple. These consisted of violations of legal duty in no wise
connected with contract.'* Thus personal violence, assault and bat-
tery; interference with freedom of locomotion, false imprisonment;
improperly starting, or abusing properly started, legal proceedings,
malicious prosecution; injury to reputation, libel and slander; au-
To Louisiana v. Mayor, etc., of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211.
Ti Clark, Ck>nt. 764.
T* Merchants' Nat. Bank v. National Bank of the Commonwealth, 139 Mass.
613, 2 N. E. 89; Clark, Cont 771.
T8 state T. I. Co. v. Harris, 89 Ind. 363; Steamship Co. v. Jollffe, 2 Wall.
450; Mechem, Pub. Off. 674, note 6; Keener, Quasi Cont. 16.
7« A tort pure and simple is essentially different from a contract pure and
simple, (a) The most substantial difference would seem to be that a tort
pure and simple is independent of previous consent of the wrongdoer or of
the injured one to bear the loss the tort may produce, whereas contract is
always based on an agreement of minds, (b) The right involved in a tort
of this kind is distinguished from that involved in such a contract in being
in actual enjoyment at the time of the commission of a tort, while that of a
contract is the right to the fulfiUment of a promise made by some person.
Innes, Torts, § 4. (c) The rule as to parties to an action on the contract and
cm the tort vary materially. Parties to a contract are determined by its terms.
Contract rights are in personam. Parties to a tort are indeterminate. Rights
«z delicto are in rem. Many persons may be liable for tort who cannot bind
themselves by contract. Rights of contribution between defendants and Judg-
ment debtors are different in the two classes of actions; so, also, differs
the effect of death of parties plaintiff or defendant, both at commcMi law and
22 GEKEBAL NATL'KE OF TORT8. [Ch. 1
noyance or offense to the senses, or to the enjoyment of life and prop-
erty, nuisance; a trespass to land or goods, — ^are all actionable
wron^^. and are committed, not only without any consent, but de-
spite the will, of the f>erson injured. Here the parties were indeter-
minate, and the rightK in rem.
The obli^^tion of a quasi tort may be strictly said to include all
species of actionable civil wrongs not incloded in the preceding three
i'luKHes. It is, however, convenient to apply it in a broader sense,
so as to include also all cases in which an action ex delicto lies upon
a state of facts of which a contract is a necessary part^' It may
arise from a violation of a right or duty which the law prescribes,
and which to a limited extent individuals may modify with respect
to certain conventional or contractual relations which are entered
into by agreement, or from the violation of a different right or duty
which the law recognizes as created by a range of facts of which a
contra(;t is a necessary part
When a jiassenger takes a train, he ordinarily holds, as evidence
of the contract he has made with the common carrier, a ticket and
a baggage check. The shipper holds a bill of lading. Upon this
simjile state of facts the law bases a complex system of rights and
duties as to person and projierty. Part of this the parties may have
contemplated, but most of it exists in the common law alone, and
derives its origin, not from real consent, but from ancient history,
under the stutiites of the various states, (d) finally, the remedy in an ac-
tion on a tort ifl the award of damages only. On the other hand, while dam-
ii^es may be awarded in an action ex contractu, a contract may also be re-
formed and Bpeciflcally enforced. There is a material difference as to the
luonHure of damage and the extent to which liability for consequences can be
carried. Attention is called to the confusion likely to arise from attempts
to distin/yrulsh a tort from a contract It would seem that it conduces to dis-
tinguish between tlie four kinds of common-law obligations, rather than merely
between contracts and torts.
7 5 The use of the term "quasi tort" may be open to the objection that it is
not the same as the use of the same term in the civil law. This termlnologry
of the civil law, however unjustly criticised, can scarcely be said to be one
strictly followed by the common law. See Pol. Torts, 18, note s. Moreover,
the term as here used applies alike to breaches of statutory, customary, and
conventional duties, which also might be called violations of quasi contracts.
Oh. 1] LAW OF TOKTi ADMINISTERED BY COURT9 OF COMMON LAW. 23
the legislation of the judges, and from statutes. Bueh rights and
duties are not properly contractual, nor is their breach a contractual
wrong; as, for example, where a passenger is assaulted bv a servant
of the common carrier, or injured by its negligence. In the case of
master and servant, this is even more marked. The contract of em-
ployment, generally informal, incomplete, oral, and containing no
more than an agreement of wages, work, and time of payment, en-
tails liability and secures rights or superimposes duties implied ^* by
law, with respect to the relation, unknown to the parties, and in large
measure to lawyers, and, as to most material matters, in a number
of instances, to the courts, prior to the decision of the case in issue.
Thus it will be seen that the courts implied into the contract the
doctrine of assumption of risk of the employment by the servant,
and especially the risk of the negligence of a fellow servant. Never-
theless it is the contract, without which the relationship could not
exist, which brings these rights into existence; and the rights and
duties vary with the contracts. Thus a railroad company owes one
set of duties to the person in its contract to carry a passenger, an-
other to its employ^, and a still different set of duties to a person
with whom it has no contract The same principle applies in a large
measure to the reciprocal rights and duties of physicians and patient,
attorney and client, owner and architect or contractor, and in many
other cases, as a telegraph company and the sender of a message, u
vendor and vendee, a bank and a depositor, and the like. Tliere is
a body of law outside of the agreement of the parties prescribing
rights and defining duties not directly contemplated by the parties,
but a breach of which is actionable as a tort
The degree to which the causes of action in quasi torts depend
upon contract is apparent in the normal rule that only parties and
Keeoer, Quasi CoDt; Whlttaker v. CoUins, 25 Am. I^aw Rev. 695. And see
Amos, Jur. 295. But these objections, on reflection, will, it Is tlioui^ht, not
prore as real as apparent. The substantial advantages in clearness and sim-
plicity and good authority (Underh. Torts; Ring. Torts; Sheorw. Torts) seem
to justify the application of quasi tort here made. Mr. Shearwood suggests
the terms "pure and impure torts."
«• I'ost. p. 990, "Negligence," "Master and Servant."
24 OENKRAL NATURE OF TORTS. [Ch. 1
privies to such contract can recover for ita violatioiL ITiere are,
however, a number of cases in which persons who are not parties to
the contract may sue for its violation.
While thus the omission to x)erform a contract obligation is not a
tort, unless that omission is also an omission of a le^l right, such
legal duty may arise, not only out of certain conventional relations,
but also out of a wider range of facts, of which a contract is an ele-
MH'Ht, giving rise to a legal. duty due from every man to his fellows,
to roHjiect the rights of property and person, and refrain from invad-
ing them by force or fraud or carelessness. This duty applies to
both willful and o negligent wrongs.
The law does lOt allow a party to use a violation of contract
obligation as an instrument of oppression and damage to accomplish
his purf>ose, and then to interpose the contract as a limitation of
his liability." Therefore, where a party willfully broke his con-
tract with another to restore a depot to its original location near
the latter^s land, so as to precipitate foreclosure of a mortgage exe-
cuted by the latter, by depriving him of restoration in value be-
cause of the return of the depot, this was held an actionable tort.''
And on the same principle liability will attach in favor of strangers
UfvawHC of negligence in connection with a contract. Thus, in deal-
ing with dangerous things the owner or keeper owes a duty to the
world to avoid doing harm; and this duty applies although he may
have sold the dangerous thing to some other person than the person
injured. So, in dealing with property under contract, any negli-
gence which damages another's property is actionable, although the
person com])laiuing was not a party to the contract.
In quasi torts it would seem that persons are sometimes deter-
minate and sometimes indeterminate, and that the rights are some-
times in rem and sometimes in personam.
ff OUver V. Perkins, 92 Mich. 304, 52 N. W. 609.
Ts Rich V. New York Cent. R. Co., 87 N. Y. 382, per Pinch, J. And see Louis-
vUle, St. L. & T. Ry. Co. v. Neafiis, 93 Ky. 53, 18 S. W. 1030. Cf. Dawe v.
Morris, 140 Mass. 188, 21 N. E. 313 (wliere plaintiff's cause of action was
held to be contract, not tort); and see Whittaker v. CoUins, 34 Minn. 299, 25
N. W. C32.
Ch. 1] LAW OF TORTS ADMINISTERED BY COURTS OF COMMON LAW. 25
9. The common law observed no distinct or strictly log-
ical rule with respect to the administration of these four
kinds of obligations by means of the two forms of per-
sonal action. It sometimes allowed the enforcement of a
tort or a quasi tort through an action ex contractu and
of a contract and quasi contract through an action ex
delicto."
The normal application of these two forms of action to the four
kinds of obligations would have been to administer wrongs based
on contract*® and quasi contracts** through actions ex contractu,
and wrongs based on torts *^ and quasi torts through actions ex
delicto. In a large measure this was carried out, but there were
many variations and a confusing inconsistency in the application of
the forms of remedy to the obligation.
Ckmirctct Sued ex Delicto.
Even certain actions which are really based on a contract and
might be sued ex contractu may be brought in the form of an action
ex delicto to evade either a statute or the ordinary provisions of
law. Thus, the statute of frauds required guaranties to be in writ-
ing to avail. Instead of suing on a parol guaranty, therefore, ac-
tions were brought, in order to evade the statute, on the tort in
deceit on allegation of false representations as to credit. The
statute had no application to torts. By this means parol evidence
was admitted, not to prove the guaranty, but the falseness of the
70 Clark, CJont 7G6. For a note as to th3 right of election of one who has been
held liable for the tort or breach of contract of another, between an action
founded on an express promise of indemnity, if such there be, or on the Im-
plied assumpsit raised by the payment of the obligation of the other, or upon
the theory of subrogation. See 30 Abb. N. O. 173.
«o Livingston v. Cox, 6 Pa. St. 3G0; Link v. Jaivis (Cal.) 33 Pao. 206; Rus-
seU & Co. V. Polk County Abstract Co.. 87 Iowa. 233, 54 N. W. 212; City of
Pt. VSrayne V. HamUton, 132 Ind. 487, 32 N. E. 324; Pennsylvania Co. v. Dolan,
6 Ind. App. 109, 32 N. E. 802. Even under the Code, a complaint showing a
cause of action in tort is not sustained by proving a cause of action on con-
tract. De Graw v. Elmore, 50 N. Y. 1.
*A Keener, Quasi Cont. c. 1; Clark, Cout. 7r»2.
•2 Wilson V. Haley Live-Stock Co., 153 U. S. 3M-17, 14 Sup. Ct. 7G8.
26 GENERAL NATURE OF TORTS. [Ch. 1
representations. Surli actions were so successful that Lord Ten-
terdcn*8 act was passed to make the statute of frauds cover,
as to these points, both actions ex contractu and actions ex de-
licto.^' As will be seen, some persons, as infants and married
women, were under a legal disability making them incapable of
i;ontracting, but a recovery could be had for their torts. Accord-
ingly, a person, whenever he could, would sue ex delicto rather than
ex contractu. Thus, if an infant should hire a horse and abuse it,
it would be to the bailor's interest to sue on the tort, because he
could not recover on the contract**
Qiuui Contract Sued ex Contractu, or ex Delicto.
While- the ordinary quasi contract is sued ex contractu on the
fiction of a promise, an action ex delicto is sometimes brought for
the breach of statutory duty. Thus, a sheriff may be liable for negli-
gence with respect to his statutory duty.'" Indeed the common law
freely recognized the right to sue for the negligent performance of
a contract either ex contractu or ex delicto, whether there was
actual *• damage or not'^ And in general it would seem that, when
a person has suffered injury from the neglect of duty which another
has impliedly promised to perform, the action may be in tort or on
contract, at the former's option, whether that duty be implied into a
contract or arises from a statutory enactment.*'
««Paslcy V. Freeman, 3 Term R. 51; Lyde v. Rarnard, 1 Mees. & W. 101;
Tatton v. Wade, 18 C. B. 371-381; Wade v. Tatton, 25 I^w J. C. P. 240; Rice
v. Manley. 06 N. Y. 82; DeCol. Guar.
84 Post, p. 158, "Infants."
•5 Post, pp. 120, 130, 133, "Public Officers.*' "Register of Deeds." "Sheriffs."
••An apothecary could be sued for breach of implied contract to use rea-
sonable skill and care or for tortious negligence followed by actual damage.
Seare v. Prentice, 8 East, 348; Livingston v. CJox, 6 Pa. St. 360.
»7 If a banker Improperly dishonors a customer's check, the customer
may bring suit in tort, although no actual damages have been sustained.
Marzettl y. Williams. 1 Barn. & Adol. 415. So. if a bailee negligently dam-
ages goods intrusted to him, he may be sued in tort, although he commits a
breach of the contract of bailment. Hayn v. CuUiford, 4 C. P. Dlv. 182;
Ck>ggs V. Bernard, 2 Ld. Raym. 909; Smith. Lead. Cas.; Boorman v. Brown,
3 Q. B. 511. Or he may be sued in assumpsit See Zell v. Dunkle, 15G Pa.
St. 353.
88 An action against a sheriff for damages for failure to permit plaintiff
Cll. 1] LAW OF TORTS ADMINISTKBED BY COURTS OF COMMON LAW. 27
Tort^ Sued ex Contractu.
Pt^rhaps the most singular anomaly in the application of the law
adjective to the law Bubstantive is to be found in the ruling of the
common-law courts that an action on the contract will lie for a tort
pure and simple. Thus, assumpsit lies for seduction, and if a man
commits a crime, as by stealing goods of another, the latter may
waive the tort and sue in assumpsit, although there is no contract.**
It was not unnatural that certain cases which are in themselves
ambiguous should have been regarded from a point of view both
of tort and of contract as sustaining an action either ex contractu
or ex delicto.*** Thus, if goods have been sold, not by mistake but
because of actionable fraud, the seller may sue in tort for damages
because of deceit, or ex contractu in assumpsit for the value of the
goods.*^
Quasi Torts.
With respect to quasi torts the confusion is perhaps inextricable.
It seems that there are two distinct classes of cases: (1) Where a
to obtain baU is in case. Taylor v. Smith {AXti.) 1<> South. (rJD; Pittsburgh v.
Grier, 22 Pa. St. 54-65; Lightly v. Clouston, 1 Taunt. 112. per Mansfield, J.
«» Clark. Ck)nt. 760, 768; Hill v. Davis. 3 N. H. 384; Gordon v. Bruner. 49
Mo. 570; Halleck v. Mixer, 16 Cal. 574; Hawk v. Thorn, 54 Barb. 1G4. In as-
sumpsit on contract of sale and purcliase. the action not being for money
had and received by defendant through the sale of goods unlawfully taken
from plaintiff, it is not necessary to allege or prove a sale of the convcrteJ
property. Galvin v. Mac Mining & Milling CJo. (Mont.) 37 Pac. 360. Where a
complaint is in assumpsit on contract of sale and purchase, and the proof dis-
closes a tortious detention and unwarranted refusal to deliver the property to
plaintiff on his demand therefor, there is no variance. Id. Hut sc>e Downs v.
Flnnegan (Minn.) 50 N. W. 981. So where money is obtained by fraud, but
only when the money is the plaintiff's. Westcott v. Sharp, 50 N. J. Law, 302.
13 Atl. 243. A cause of action ex contractu and for cnnven-iou ex delicto
may arise out' of same transaction, and be united in same proceeding. Craft
Refrigerating Mach. Ck). v. Qulnnlpiac Brewing Co., 63 Ck)nn. 551, 2i) Atl. 76.
90 Right to waive a tort and sue in assumpsit is Rub.1e<'t to the limitation
that thereby defendant is not deprived of any benefit which he would have
derived under the appropriate form of action on tort. 2 Grcenl. Ev. § 12i).
citing Lindon v. Hooper, Cowp. 414—419; Anscomb v. Shore, 1 Camp. 2S5;
\oung V. Marshall. 8 Bing. 43: and many other case.s.
•1 Hill V. Perrott, 3 Taunt. 274. One who has been induced to make a pur-
chase by fraudulent representations may waive the tort, and sue in assump-
28 GENERAL NATURE OF ToRTS. [Cb. t
contract has created a dnty between the x>artie8 and privies, a,
breach of which is actionable under roles already considered, bat
in addition to this the contract has either repeated or put in force
the common-law doty governing the relation or sitoation, a party^
or privy to the contract may sue ex contracto for breach of the
contractoal duty, or ex delicto for the breach of the common-law
doty. Thos, by way of contrast, a stranger injored in a railroad
accident can soe the company only ex delicto, while a passenger
can soe either ex contracto or ex delicto.** The limitations which
the contracts themselves may contain may affect the rights of the
parties to the contract materially. If a contract shoold stipulate
against liability for negligence in a jorisdiction where soch a stipu-
lation is enforced it might happen that the passenger in the case
supposed could not recover, while a mere stranger might. (2) Witlk
respect to the right of third persons to recover in an action ex de-
licto for injury arising from a state of facts of which the breach
of a contract is an essential part, three propositions may be made:
(a) The mere contract creates no duty the violation of which gives-
rise to a cause of action on behalf of a stranger, (b) The cwitract
of limitation on liability does not affect a stranger to the contract,
(c) The contract excludes no liability, and does not prevent recov-
ery by a stranger for the malicious, fraudulent, or negligent act oT
a party to the contract**
Effect of Abolishijig Forms of Action.
With the abolition of forms of action, artificial distinctions in-
volved in the choice of remedies — ^the juggling with remedies —
should disappear. Mr. Keener has said as to quasi contracts, par-
ticularly with reference to the fiction of implied promise where the
git Stelner v. Clisby (Ala.) 15 South. 612. Article by Keener. 6 Harv. Law
Rev. 22^-269. And see Mr. Ames' History of Assumpsit in 2 Harv. Law
llev. 64; Clarkp Cont. 76(». Plaintiff may waive tort, and sup in assumpsit
for benefits received by wrongdoer thi-ough conversion of property, tborgli
the latter has not disposed of the property converted: but intent to waive
tort must appear on the face of pleading. Braithwaite v. Ailsen (N. D.) 5t>
N. W. 133.
» 2 Post, p. 902, "Negligence"; Wilt v. Welsh. 6 Watts, 9; M*CaU v. Forsyth,
4 Watts & S. 179.
»3 Post, p. 904.
Ch. IJ LAW OF TORTS ADMINISTERED BY COURTS OF COMMON LAW. 20
tort is waived, and action is brought on tlie contract: "The con-
tinuance of such a fiction (existing for the purposes of a remedy
-only) cannot be justified, to say nothing of its extension, in those
jurisdictions where all forms of action hare been abolished. In
such jurisdictions the inquiry should be, not as to the remedy for-
merly given by the common law, but as to the real nature of the
Tight" •*
In quasi torts there is every reason for the trial of the case on
"the plain and simple substantive right of the party. Nevertheless
the distinction retains great importance. While forms of action
liave been abolished in England, the question of costs in the su-
perior court is still dependent on the accurate observance of the
•distinction.**
In Massachusetts the action on the tort is one of the three forms
•of civil action. In Pennsylvania, under the recent practice act,
there is a similar modification of the common law.** In other
-states the old common-law form of action is still in use. Even in
Oode states there has been comparatively little success achieved in
the elimination of many of the conmion-law anomalies. This is due
-perhaps not so much to the conservatism of courts as to the natural
and unavoidable connection between the law substantive and the
law adjective.*^ Moreover, the tendency is naturally to bring ac-
tions which may be really ex contractu in the form of actions ex
<Lelicto, because in tort the rule as to the measure of damages re-
<K)verable is more favorable, and the extent to which wrongful conse-
•* Keener, Qruisi CJont 100; Pig. Torts, 7.
•B Pontlfox V. Midland Ry. Co., 3 Q. B. Dlv. 23; Bryant v. Herbert, 8 C.
T. Div. 389; Sbaw v. Coffin, 58 Me. 254.
»• See Johnson v. Philadelphia & R. R. Co.. 163 Pa. St. 127, 29 Atl. 854.
•7 In Minnesota, the importance of the distinction between actions ex con-
tractu and ex delicto has been denied with emphasis. Serwe v. Northern
Pac. R. Co., 48 Minn. 78, 50 N. W. 1021. But a demurrer to a complaint in an
•action against a physician for malpractice was there sustained because it ap-
peared from the complaint that the defendant had a partner, who was not
made a party defendant. Whittaker v. Collins, 34 Minn. 299, 25 N. W. G32.
If this action had been in tort, and the parties were tort feasors, one or all
H^ould have been sued. If it was in contract, both should have been made
XMTtles.
30 I.KNEKAI- NATURE OF TORTS. [Ch. 1
quences may be traced is much greats, and the rig^t of election as
to parties defendant is more faTorable to the plaintiff, than in an ac-
tion on the contract And the statnte of limitation may bar an
actiou on the contract when it will not bar an action on the tort*'
THE I«AW SUBSTANTIVE AS TO THE PERSON INJXJBEB.
10. The law recog^nizes a nonnal ri^ht of every one
against -whom a tort is conunitted to secure leg^al redress
therefor. But this right may be defeated by plaintiff's
own conduct, as by his consent or his own wrong.
TJie Normal Right.
This is another way of patting the familiar maxim that wher-
ever there is a wrong there is a remedy.** The remedy in tort lies
ordinarily at the suit of the person injured llie action cannot
generally be brought by one person to the use of another.*** But
personal disability may in certain cases necessitate bringing an action
in tort in the name of some person other than the party injured,
llius, an infant, or a person absolutely insane, can sue only through
a guardian *** or other person designated by law. Damages thus
recovered for a tort against an insane person go to his estate. This
requirement as to the appointment of a guardian is part of the law
adjective, and not of the law substantive. At common law the husband
»« Galveston, H. & S. A. R. Co. v. Roemer. 1 Tex. Civ. App. 191, 20 S. W. 843;
Prick V. Lnmed. 50 Kan. 776, 32 Pac. 383. And see Blakely v. Le Due, 22
Hinn. 476. On the other hand, recovery may sometimes be had In contract,
where it would be denied in tort; because of the death of one of the parties
prior to the commencement of the suit Post, c. 4, p. 329, note 148.
»• Post, p. 348.
100 Kansas City, M. & B. R. Co. v. Cantrell, 70 Miss. 329, 12 South. 344.
101 Though in suits conducted by a next friend the minors ought regniarly
to sue by him, yet, if the next friend sue in behalf of the minors, it is the
same in substance. Van Pelt v. Chattanooga, R. & C. R. Co., 89 Ga. 706, 15
S. E. 622. Appearance in judicial proceedings is generally regulated by stat-
ute. Plympton v. Hall, 55 Minn. 22. 56 N. W. 351; In re Hunter's Estate,
84 Iowa, 388. 51 N. W. 20; Redmond v. Peterson, 102 CaL 595, 36 Pac. 923;
Harlammort v. Moody's Adm'r (Ky.) 26 S. W. 2; Worthington v. Mencer, 96
Ala. 310, 11 South. 72. The infant plaintiff should sue as plaintiff, not the
guardian as plaintiff. Perine v. Grand Lodge, A. O. U. W., 48 Minn. 82, 50
N. W. 1022.
Ch. 1] LAW SUBSTANTIVE AS TO THE PERSON INJURKD. 31
brought an action in his own name for a tort to his wife. Damages
recovered were really part of her estate, although they actually went
to him together with all her other property.*®* These apparent
exceptions to the principle as stated, properly viewed, are really
its adaptation to other branches of jurisprudence.
Personal status, as a rule, is immaterial in the law of torts.*®'
"For a Roman of the republic, and even of the empire down to Jus-
tinian's time and later, the question, 'With what kind of a person
have I to do?' had a very clear and prominent legal meaning, and
no question could be more practical. However, there is a general
tendency among modern authors to regard the law of persons as
supplementary to the general body of legal rules."*®* Capacity
in fact is a material consideration, especially in cases of negli-
gence.*®*
CkmsenL
Before the conduct complained of, plaintiff may have actually or
impliedly consented to what would otherwise be a tort. A foot-
ball player cannot complain of damage suffered in accordance
with the rules of the game. No action can be maintained for dam-
ages arising from conduct to which the plaintiff consented, provided
the conduct was not illegal, — that is, criminal. Consent, however,
cannot make an illegal action lawful. A person can only consent to
the commission of lawful acts. His consent justifies only so far
as it goes. A patient may lawfully consent to a surgical operation
on him. This consent justifies the physician in performing the
operation, but not in committing an assault. A prize fight is illegal,
and, notwithstanding the consent of the parties in participating in
it, one of them may sue the other for damages.
Plaintiff's consent operating as a bar to his recovery may be sub-
sequent to the wrong complained of. Thus, if he has executed a
release or accepted something in satisfaction of his claim for the
wrong done, or has waived the tort, he cannot succeed in an action
on the tort
102 Post, p. 404, "Husband and Wife."
103 Pol. Torts, ♦46.
104 8 Harv. Law Rev. 180.
los Pol. Torts, ^4^ Post, p. 871, -Negligence."
32 .GENERAL NATURE OF TORTS, [Ch. 1
Wrong»
Again, the plaintiff cannot recover unless he himself be innocent.
^*In an action on a tort, a bad man stands on the same footing as a
good one, but neither can have judicial assistance in breaking the
law, or compensation for having broken it, or reimbursement for
what may have been expended in its breach." *•• In Meryweather
v. Nixan,***^ plaintiff and defendjint damaged a mill, for which plain-
tiff was forced to pay the whole. It was held that he could not
recover contribution from defendant; for ex turpi causa non oritur
actio.
Plaintiff's wrong may consist in conscious wrong, or in mere
inadvertence or negligence.^** But, while plaintiff's wrong doing
may prevent his recovery, to have this effect it must have been
connected as a proximate cause of the tort. If a person rides his
horse faster than the law allows, this does not justify a cowboy in
using his lasso to throw the horse.***
THE LAW SUBSTANTIVE AS TO TOBT FEASORS.
11. Liability for torts norxnally extends to every person,
natural or artificial, independent of personal status; but
modifications of and exceptions to, or exemptions from,
liability are recognized. These may be:
(a) Oeneral or
(b) Special.
loe Blsh. NoDcont Law. So, "A man must oome into equity with clean
hands.*' However, where corporations enter Into an Illegal trust, and one of
them, on withdrawing, attempted to recover the property put Into the com-
bination, the court sustained It In so doing, on the theory **that, as a con-
tinuing execution of the contract Involves a continuing wrong to the public,
the Judicial courts will aid either party in abandoning It and In extricating
itself from it, and that the doctrine in pari delicto does not apply In such
case." Mallory v. Hanauer Oil Works, 86 Tenn. 509, 8 S. W. 396.
107 Merryweather v. Nixan (1799) 8 Term R. 186; Smith. Lead. Cas. (Am.
Notes) 1700.
108 PlaintiflP's own conduct, to prevent his recovery, "cannot In any case be
less than (1) a willful and Intentional act of wrongdoing; (2) a yolimtary as-
sumption of the risk which resulted in injury; (3) negligence." 2 Thomp.
Neg. 154.
io» Post, p. 180.
Ch. 1] LAW SDBSTANTIVE AS TO TORT FEASORS. 33
The law of torts was a substitute for private war."® It was de-
signed to suppy a sufiQcient remedy for the illegal harm which men
were caused to suffer. Award of pecuniary compensation was the
commonest, but by no means the only, form of redress. . The pur-
pose was not, primarily, to punish the wrongdoer (the criminal
courts did that), but to make good the damage the injured party had
suffered, and, incidentally perhaps, to deter others from evil."^
Accordingly, it was generally immaterial whether the defendant in
an action on a tort be natural or artificial, responsible or irrespon-
sible, or whether his conduct was intentional or unintentional, so far
as the mere right, but not the extent, of the plaintiff's recovery was
concerned."*
The earliest theory of liability for tort was, as will presently
be seen, based largely on the common-laiwr action of trespass."'
In the simple act of trespass there is involved a minimum of mental
element. Accordingly, the early cases stated the doctrine broadly,
that individual status — youth, old age, insanity, or incapacity gen-
erally— had nothing to do with liability in tort."* This language
was afterwards strained beyond the original holdings (as was done
with Weaver v. Ward, conspicuously) and made to cover classes
of cases not contemplated when the doctrine was formulated."*
There has been a distinct reaction against the universal application
of this general principle, especially to oases in which the mental
attitude of the wrongdoer is an essential part."*
110 Pol. Torts, *5S; Townsh. Sland. & L». 30, 44. note 1.
iJi Post. p. 302. "Exemplary Damages.'* And see Pol. Torts.
112 "As long as a man keeps himself within the law by doing no act which
violates it, we must leave his motive to Him who searches the heart." Black.
J., in Jenkins v. Fowler, 24 Pa. St. 308-310. 'The legal wrong is found in
the injury done, and not in the motive. * • • Motive generally becomes
important only when the damages for the wrong are to be estimated." CJooley,
Torts, f§ 602-604.
lis Amick V. O'Hara. 6 Blackf. 258; Haynes v. Thomas, 7 Ind. 38; Indian-
apolis. R. Co. V. CaldweU, 9 Ind. 307-421; Leach's Ex'r v. Prebster, 35 Ind.
415.
"4 Post p. 100. Weaver v. Ward, Hob. 89; Chase. L. C. 49.
iiB BuUock V. Babcock, 3. Wend. 301; Welch v. Durand, 36 Conn. 182; Flinn
y. StatPv 24 Ind. 286; Mercer v. Corbin, 117 Ind. 4.V>, 20 N. B. 132. Post, p.
48» "Tlieory of Liability."
i?« As in negligence. Am. & Bng. Enc. Law.
LAW OF TOUTS — 8
34 GESEKAL NATURE uK TUBTS. [Ch. I
In whatever waj the liability maj attach, it can attach onlj aa to
wrongs of which the person sought to be charged is directly or indi-
rectly connected as the legal canse. Merely that his so'Tant may have
had something to do with an alleged wrong done is not sufficient.
Kren if the defendant individually in some remote way was the
(i4rcasion or condition ol the wrong, this would not charge him. He
must be connected, directly or indirectly, as the legal cause of the
wrong.
There are further variutions in the normal right to sue arising
from the defendant's condition, based on exceptions which the law,
for reasons of public policy, for example, recognizes. These excep-
tions or exemptions are of two kinds: (1) General, or those which
apply indilTerently to all or to most all kinds of wrongs; or (2) spe-
cial, which are peculiar to specific torta^^^ l^us the state cannot,
in abH4*nce of its connent, be sued for any tort. Privilege of the
Htate is a geut^ral exemption. But privileged communication, for
example, is a special exception, peculiar as a defense to libel and
Hlander. Accordingly, general exceptions will be considered in the
first part, and special exceptions in the se<M>ud part, of this book.
LAW SUBSTANTIVE AS TO THE WBONGFUI. CONDUCT.
12. Wrongfal conduct has reference to —
(a) The mental attitude of the wron^ doer, or mens
rea;
(b) The act or omiBsion complained of, which
may be —
(1) Complete or
(2) Continuing.
}fejit*d RUmcni,
Each act or omisHion may be involuntary, intentional, or negli-
gent"* Accordingly, in dealing with a tort, it is of increasing im-
portance to consider how far the state of the mind of a tort feasor
11' I'ol. Tortii, c. 4 (••General and Particular Elxceptions").
1 1 ^ 'The Kngllsh law, which in its earliest stages began with but an im-
pei'fer't line of demarcation between torts and breaches of contracts, pres^its
us with no scientific analysis of the degree to which the Intent to harm, or,
in the language of the civil law. the 'animus vlcino nocendi.* may enter hito
Ch. 1] LAW SUBSTANTIVE A8 TO THE WltONGFUL CONDUCT. 35
at the time of the commisBion of the wrong influences the ques-
tion."*
Act or Omisaion.
Mere intention to do wrong is not actionable. To constitute a
tort, a wrong must have been committed, but it need not be done by
positiye act only. A tort may also arise out of omission, '^here
is great distinction between an omission and an act done." ^** It
is sometimes said that to avoid commission of a tort, %ne needs only
to forbear.'^ *"* But this is not strictly true, in the ordinary sense
of "forbearance." "Diligence — ^the converne of negligence — may
imply a forbearance to act as well as to act; "' and on the other
hand, failure to act is often the gist of liability. Thus, there may
be negligence in omission as well as negligence in commission.^"
The same distinction was recognized in the civil law, under the
terms "culpa in faciendo" and "culpa in non faciendo." "*
or effect the conception of a personal wrong.*' Bowen, L. J., In Mogul ▼. Mc-
Gregor, 23 Q. B. Div. 508. And see Ghasemore v. Richards, 7 H. L. Gas. S67.
119 What is meant by the mens rea, aa distinguished from the act or ovniH-
8 ion complained of, may be made clear by reference to deceit In this wrong.
Inter alia, t^ro things are to be considered: (1) defendant's state of mind, his
intention to deceive, his knowledge of the falsity of representations, and tho
like; (2) his consequent conduct, as the lie he tells, or the truth he suppresses
when he ought to speak. Gorrespondlngly on pLiiii tiffs part, he suffers no
wrong unless (1) he believes and relies on defendant's wrong, and (2) in con-
sequence of such mental condition acts or fails to act, whereby he is damaged.
Post, p. 560, "Deceit"
120 Abbott, C. J., in Devereuz v. Barclay, 2 Bam. & Aid. 702, Am. Lead. Gas.
432.
121 Aust Jur. lect. 14, pt 1, par. 602, p. 250; Keener, Quasi Gont. 15. A cur-
rent jocular definition of negligence is: "I have done those things which I
ought not to have done, and I have left undone those things which I ought
to have done." And see Whart Neg. S 24.
i«2 16 Am. & Eng. Enc. Law, 405, and cases cited, note 3; Undorwood v.
Smith, 93 Tenn. 687, 27 S. W. 1008 Glbel).
i2»Blyth V. Birmingham Works, 11 Exch. 781; Bramwell, J., Southcote v.
Stanley, 1 Hurl. & N. 246; Gallagher v. Humphery, 10 Wkly. Rep. 664; Cot-
ton V. Wood, 8 C. B. (N. S.) 568; Gleland v. Thornton, 43 Gal. 437; Grant v.
City of Erie, 69 Pa. St. 420. Omissions not in discharge of positive duty are
not subject to suit, but are so when constituting the discbarge of a logal duty.
Whart Neg. §§ 82, 83.
i«*Whart, Neg. §79.
36 Q£1«ERAL NATUUK OF TORTS. [Cb. 1
Misfeasance — Malfeamnce — Nonfeamixce*
The distinction of conduct as malfeasance, misfeasance, and non-
feasance was at one time a favorite one in the common law. Non-
feasance is the omission of an act which a person ought to do, mis^
feasance is improperly doing an act which a person might lawfully
do, and malfeasance is the doing of an act which a person ought not
to do at all."'^ The difficulty with this distinction lies in the
shadowy character of the line between misfeasance and nonfea-
sance, and the consequent tendency to lapse into merely a verbal rea-
soning. This is specially true where the not doing of a thing is
wrongful, and therefore a nonfeasance becomes a misfeasance. In
consequence, the tendency at the present time is to disuse the
terms.*^*
Coniiiiuing or Completed Wrong,
Many torts consist of specific, distinct acts or omissions, which,
however connected with conseciuential injuries, are the original,
and, so far as the wrongdoer is concerned, the sole, cause of harm."^
Thus seduction cannot be repeated. If assault and battery ig re-
peated, the second attack is a new wrong.*"" Repetition of a libel
may be a new publication, and give rise to a new cause of action.***
A wrongful conduct may be said to be completed when the wrong-
doer has no further control over its consequences. But a tort may
be continuing. The wrong may not be distinctly separated from
subsequent conduct or dsimages. Thus a trespass may consist
of a single, simple entry by a person on another's land, after which
he leaves it. If it be repeated the wrong is a new offense. Each
126 2 Vln. Abr. 35; Thompson v. Gregory, 4 Johns. 81; Six Carpenters' Case,
S Coke, 14(ja; Bouv. Inst. tit. "Misfeasance"; Coggs v. Bernard, 2 Ld. Raym.
D09; BeU v. Josselyn, 3 Gray, 300.
i2» See liability of agent to third person for nonfeasance, post, p. 287. Lia-
bility of executive officei-s to third persons, post, p. 128. As to development
in the law of contract, sl'c Hare, Cont.
127 Post, p. 92G, "Connection as Cause."
lasHodsoU v. Stallebrass, 11 Adol. & E. 301. And see Fitter v. Veal, 12
Mod. 542; Lamb v. Walker, 3 Q. R Div. 389; Loixl Blatkbum, In Darley, etc.,
Ca V. Mitchell, 11 App. Cas. 143. But see North, C. J., in Townsend v.
Hughes, 2 Mod. 150.
129 Every continuance of false imprisonment is a new imprisonment Hardy
V. Ryle, 9 Bam. & O. 603. And see Dusenbury v. KleUy, 58 How. Prac. 286.
Ch. 1] HOW LI ABILITY FOR TORTS MAY ATTACH. 37
new wrong gives a new caase of action. This may also be true of nui-
sance."® But if a trespasser *•* erect a permanent structure on an-
other's land, or a person create a permanent nuisance,"* the tort
may, under some circumstances, be continuing, and the right of ac-
tion will correspond."*
HOW LIABIUTY FOB TOBTS MAT BS ATTACHED TO
DEFENDANT.
13. Conduct may attach liability in one or more of five
ways, namely:
(a) By personal commission;
(b) By consent or command;
(c) By virtue of relationship;
(d; Because of instrumentalities; and
(e) Because of conduct operating essentially as estoiH
pel.
Pers^al Commission,
Where wrongs are committed by a man in person, as where one
man assaults, slanders^ or imprisons another, or trespasses upon or
takes the property of another, or carelessly does him harm, the tort
is properly his own. It makes no difference, so far as the mer^
fact of liability is concerned, whether he committed such wrongs by
himself, or in conjunction with third persons. But it may be very
material to the extent and character of his responsibility whether
he acts jointly with such other persons, accidentally or independently,
or whether he and they co-operate by agreement, or in any form
of concerted action. Indeed, while it was originally said that what
one man may do lawfully by himself any number of men may prop-
erly do together, it is now open to at least serious question whether
i»o Hopkins v. W. P. U. Co., 50 Cal. 190-194; Baldwin T. Calkins, 10 Wend.
167.
131 Kansas P. R. Co. y. Mlhlman, 17 Kan. 224, 4 Cent Law J. 108. Post, p.
407,. "Continuing Trespass."
18a Whitehead v. Hellen, 74 N. C. 679; Schlltz Brewing Co. v. Compton, 142
111. 511. Post, p. 410, "Continuing Nuisance."
1" Whitehouse v. Fellowes, 10 0. B. (N. S.) 765, 30 L. J. 0. P. 305.
38 GENERAL NATURE OF TORTB. [Ch. 1
the mere joinder in action of a number of men in doing what one
might legally do by himself is not actionable.*'*
Gmsent or Command,
"Qui facit per alium, facit per se,'* is a maxim which, in the law of
torts, has created much confusion. In its simplest application
thereto, it expresses a manifest truth,-^that whoever commands the
commission of a wrong by another does that wrong himself, not by
actual, personal commission, but by constructive identity. If the
command or consent to the tort is prior to the wrong complained
of, he may be said to have authorized it It will appear, however,
that some torts are not, in their nature, susceptible of being com-
mitted by deputy, as the wrongs of seduction and slander. The
command or consent which maizes another's tort one's own may be
subsequent to the wrong. It is then called "ratification" or "adop-
tion." What ratification or adoption attaches liability for an-
other's tort will, for sake of convenience, be presently discussed in
this chapter, at some length.
ReJfdionahip,
When, however, the maxim, "Qui facit per alium, facit per se,'*
is applied beyond this primary meaning, to cases where liability may
be independent of consent or conmiand, there is much confusion.
In many jurisdictions now, and always at common law, the husband
was held liable for the torts of his wife.*''' Here the civil respon-
sibility followed from the relation existing between them. There
might or might not be consent on his part. If there was, the tort
would properly be his actual wrong; if not. it would be his by
construction only. In the same way, the negligence of a parent
in exposing a very young child, incapable of negligence, to danger,
is sometimes attributed to the child. And there are other recog-
nized cases of vicarious negligence.*'" There are many cases,
however, in which the courts have confused the liability which is
based on consent or command and the liability which follows from
a relationship to which recognized responsibilities are attached.
If a master assists a servant in an assault, they are actual joint
134 Post, p. 637, "Conspiracy."
136 Post, p. 216, "Husband and Wife.*'
ise Post, p. 960, ••Nejfllgence," "Vicarious NeRlipence."
Ch, 1] HOW LIABILITY FOR TOBTS MAY ATTACH. 39
tort feasors. If he commands his servant to assault, they are con-
structively joint tort feasor& This is also true when he directs his
servant to do something which necessarily or naturally involves an
assault. But when a servant, contrary to orders, and without the
knowledge of the master, assaults, for example, the master's cus-
tomer or the master's passenger, the master is sometimes held re-
sponsible, not because the tort is really his, but because of the rela-
tionship he bears both to the servant and to the injured man. If
he sustains no relationship to the complainant which imposes on
htm a duty which his servant violates, there is no responsibility.
Instrumen talities.
Whoever uses, owns, or controls things which are in themselves
dangerous, as a wild beast, or which may become dangerous in fact,
as an engine, may become liable for harm done by such instrumen-
talities. The principles upon which liability is attached are not
in entire harmony, but all agree that liability under some circum-
stances may attach for the harm they produce. Mr. Innes has made
a valuable contribution to the law of torts in emphasizing the prop-
osition that an instrumentality may be personal or impersonal. The
personal instrumentality may be rational or irrational.^ "^ The ini-
personal instrumentality may be animate, as an animal of wild or
domestic nature, or inanimate, as a ponderous article, a weapon, an
explosive, or a thing of motion."* Now, where a dangerous imper-
sonal inanimate instrumentality — ^for example, a torpedo — does dam-
age by the unauthorized act of a servant, there is great, and it would
seem unnecessary, confusion in tracing civil responsibility for the
wrong. Liability because of relationship of master and servant is
one consideration; liability because of instrumentality is another and
distinct one. Even the most apparently innocent things, like real
estate, may become instrumentalities of harm. Again, it is insisted
that deceit is not the wrong of which the party injured complains,
but merely the instrumentality by which the wrong is caused.***^
157 A master may be held liable for the torts of his lunatic servant Cole
y. Nashyille, 4 Sneed (Tenn.) 162.
158 It Is said in an early case that, "where one has filth deposited oji his
premises, he whose dirt it is must keep it that it may not trespass." Sec
Tenant v. €k)ldwin, 1 Salk. 360.
5*0 That the deceit is not the injury itself, out merely a piece of conduct of
40 GENEBAL NATURE OF TOUTS. [Ch. 1
By Oonduct Operating cut an Estoppd,
In most cases liability for tort attaches in one op more of the four
ways heretofore considered. This classification, however, in the na-
ture of things is neither mutually exclusive nor exhaustive. There
are, in addition, other ways in which liability for tort may be at-
tached.
It is constantly said that where harm has been inflicted as between
two innocent parties, he who caused the harm should suffer.^*^ This
principle, as applied, is likely to lead into error. As a consideration
of natural equity it is given due weight by courts, but it proceeds
on the false assumption that, where damage is actually done, some-
body must be held responsible. Still, there are cases in which a per-
son may be held responsible in an action ex delicto when he could
not be said to have committed the tort in any ordinary sense. If a
man illegally enriches himself to the impoverishment of another, the
law wiU make him disgorge. This result is sometimes worked oiit
through implying consent after the tort; that is, by saying the re-
tention of benefit operates as an implied ratification of another's
wrong. This, however, is an unnecessary and fictitious indirection ;
for the law at an early date recognized direct liability, on the princi-
tbe injurer which leads ultimately through the mlud of the pwrsou deceived
to the violation of a rl^ht Id rem, is shown by the fact thnt various classes
of injuries are brought about by false representation. Longmeld v. Holli-
day, 6 Exch. 7G1; injury to person, Pasley v. Freeman, 3 Term R. 51; In-
jury to property, Fitz John v. Macklnder, 9 C. B. (N. S.) 504. 30 L. J. C. P.
257. Wrongful prosecution and injury to reputation, as in the ease of a
clergyman being induced to visit a house of ill fame on the false representa-
tion that it was the house of a person on whom he desired to call, and the
address of whom the person furnishing the false information pretended to
give. Innes, Torts, vll.
1*1 As to actionable negligence in clothing a person with title, name, and
authority, see McCabe v. Brown (Tex. Civ. App.) 25 S. W. 134; Curtis v.
Janzen, 7 Wash. 58, 34 Pac. 131; Blalsdell v. Leach, 101 Cal. 405. 35 Pac.
1019; Clarke v. Mlligan (Minn.) 59 N. W. 955. See, also, Gould v. Wise, 97
Cal. 532, 32 Pac. 576, and 33 Pac. 323; Foreman v. Weil, 98 Ala. 495, 12 South.
815; Hollis v. Harris, 9G Ala. 288, 11 South. 377; Lawrence v. Investment Co.,
61 Kan. 222, 32 Pac. 810; Dolbeer v. Livingston. 100 Cal. 617. 35 Pac. 328.
And see post, c. 3, '^Liability of Master to Third Persons for Torts of Serv-
ant— r'raud."
Oh. 1] HOW LIABILITY FOR TORTS MAY ATTACH. 41
pie here involved, in the large and important class of cases where
the impoverished party could sue in tort or in assumpsit**"
The measure of recovery is the amount which defendant cannot in
conscience keep."' Thus, while an executor is ordinarily not liable
for the tort of the deceased, still, where the estate of deceased had
been unjustly enriched at another's expense, the latter could sustain
his action in tort.*** Accordingly, since the right to recover money
which has been stolen, fraudulently obtained, or wrongfully con-
verted to another's use rests on the equitable principle of unjust en-
richment, the claim may be asserted, not only against the immediate
tort feasor, but against any one into whose possession the money
may be traced, until it reaches the hands of a holder for value with-
out notice.*
i«« Cooper T. Ck>oper, 147 Mass. 370, 17 N. E. 8D2; National Trust Oo. v.
CJIeason. 77 N. Y. 400; Keener, Quasi CJont. ICO, qiiothig Hambly v. Trott.
Cowp. 371; PoweU v. Bees. 7 Adol. ft E. 426; Ex parte Adamson, 8 Gb. Div.
807; Patterson v. Prior, 18 Ind. 440; Tlghtmyer v. Mongold, 20 Kan. 00; Fan-
son V. Llnsley. Id. 235; New York Guaranty Co. v. Gleaflon. 78 N. Y. fl03.
"It Is true," says Mr. Keener, "that you cannot sue in assumpsit a person
who commits an assault and battery, while you can sue in assumpsit ono
who steals your goo68 and sells them. But it is submitted that the true rea-
son is not that suggested, by a learned writer [Cooley. Torts, 1081, that it
would be absurd in the one case to assume that the defendant promised to
make compensation for the dama^^e done, while in the other case there are
facts which would support the implication of a promise. In the one case
there is no enrichment, in the other there is; hence in the one case your rem-
edy Is in tort only, while in the other you can sue in quasi contract*'
14S Keener, Quasi Cont. 183.
144 «*if it is a sort of injury by which the offender acquires no gain to him-
self at the expense of the sufferer,— as beating or imprisoning a man, etc.,—
there the person injured has 'only a reparation for the delictum in damages
to be assessed by a Jury. Hut where, besides the crime, property is acquired
which benefits the testator, there an action for the value of the property
shall survive against the executor. As. for instance, the executor shall not
be chargeable for the Injury done by his testator in cutting down another
man's trees, but for the benefit arising to his testator for the value or sale
of the trees he shall. So far as the tort itself goes, an executor shall not be
liable, and therefore it is tliat all public and all private crimes die with the
offender, and the executor is not chargeable; but, so far as the act of the
offender Is beneficial, his assets ought to be aiiswerable, and his executor
therefore shall be cliarged." Lord Mansfield in Hambly v. Trott, Cowp. 371.
^ Keener, Quasi Cont 183.
42 GENERAL NATURE OF TOBTS. [Ch. 1
60, in cases of fraud, the principal may be guilty of no personal
wrong, and not be guilty because of relationship with the agent
who committed the tort, and still be held liable because of unjust en-
richment.**' Indeed, in England it has been held that his liability
is precisely coextensive with the fruits of the wrong which he has
received. And in respect, also, to agents, "the rule is that where
one has reasonably and in good faith been led to believe, from appear-
ance of authority which the principal permits his agent to have, and
because of such belief has in good faith dealt with the agent, tlie
principal will not be allowed to deny the agency (and consequent lia-
bility) to the prejudice of one so dealing." **•
The principle which is involved in these cases is natural equity
and public policy, and in general may conveniently, if not always ac-
tually or consistently, be said to operate by way of estoppel in pais. It
would seem, indeed, that this underlying principle determines, in a
large measure, the extent of the master's liability in other cases than
those referred to. The master is held liable for the tort of his serv-
ant, according to this view, to the extent that public policy justifies
and demands.
The recognition of rights and duties by the law is largely a matter
of policy. Certain distinctions may exist in nature; but, essentially,
the law is an artificial science. There are no rights except such as
the law sanctions. Accordingly, the law is continually reaching a
conclusion as a matter of utility, and then justifying by a process of
reasoning as unsatisfactory as it is unreal. This seems to be the
case, for examplo, with the rules as to the extent of liability of the
master to his servant or of the master to third persons not in his
employ for the torts of his servant.
1*5 Continental Ins. Co. v. Insurance Co. of Pennsylvania, 2 C. C. A. 535,
51 Fed. 884; Albitz v. Railway Co., 40 Minn. 476, 42 N. W. 394.
i*cGllfillan, C. J.. In Columbia Mill Co. v. National Bank of Commerce,
52 Minn. 224-229, 53 N. W. 1061. *There Is a class of acts or representations
tbat may be considered as addressed f^enerally to all who may have occasion
to act on them, may claim them as an estoppel." This was applied to leaving a
deed, executed and acknowledged, In the hands of an attorney, with the name
of the grantee and the consideration In blank, which being filled out, the deed
was delivered. It was held that the persons executing the deed could not
say that It was not fully executed and complottMl. Ponco v. Arbuckle, 22
Minn. 417. Cf. Beardsley v. Day, 52 Minn. 4r»l, 55 N. W. 40.
t*ll. 1] UABILITY BY RATIFICATION. 43
SAME— LIABILITY BY RATIFICATION.
14. liability for torts committed by another person may
attach by ratification of such wrong.
It is a recognized rule of general jurisprudence that an act done
in violation of the law or in controversion of public policy, the per-
formance of which could not be lawfully delegated, cannot be lawfully
ratified.^^^ It has accordingly been seriously questioned whether a
bare personal trespass committed by one person can be made the
wrong of another by adoption.**' **If a man assaulted another in
the street, out of his own head, it would seem rather strong to say
that if he merely called himself my servant and I afterwards as-
sented, without more, our mere words would make me a party to the
assault, although in such cases the canon law exconmiunicated the
principal if the assault was upon a clerk." **• The doctrine, however,
from an early date has been well established.**® Even a state may
be made liable by an act of legislature for an unauthorized wrong of
a public officer."*
16. A valid ratification may be either express or im-
plied, and to constitute a valid ratification
(a) The act must have been done in the Interest
of the person sought to be charged by ratifi-
cation;
i<7 Zottman v. San Francisco, 20 Cal. DG; Arnilta^e v. Widoe, 36 Mlcb. 124;
Tamer v. Phoenix Ins. Co., 65 Mich. 236, 21 N. W. 320; Mechem, Ag. §§ 111-
115.
148 Bishop V. Montague, Gro. Eliz. 824; Adams v. Freeman, 9 Johns. 110.
i«» Dempsey v. Chambers, 154 Mass. 330-3;{3, 2S N. B. 279.
160 The earlier authorities will be fcund collected in Dempsey v. Chambers,
supra. An early case from the Year Book 7 Hen. IV. fol. 34. pi. 1, is given
in the note to Wilson v. Tumman, 6 Man. & G. 2.'{(). And see JiuIr )i) y. Cook,
11 Barb. (N. Y.) 642, and cases cited; Rinj:. Torts, 50; llcidenheimer v. Lorlng,
20 8. W. 99; Cooley, Torts. ^ 127; Pig. Torts. 71.
i»i State of Wisconsin v. Torinus, 20 Minn. 1, 3, 41) N. W. 259, colloctlng
eases.
44 GENERAL NATURE OF TORTS. [Ch. 1
(b) Such person must have adopted' the conduct
with full knowledge of its tortious nature,
and with actual or imputed intention to rat-
ify.
Tlie conduct ratified must have been in interest of ratifier. The
rule as to the extent to which an act may be ratified is thus stated
by Lord Coke: "He that receiveth a trespasser and agreeth to a
trespass after it be done, is no trespasser unless the trespass was
done to his use or for his benefit; and that his agreement subse-
quent amounteth to a commandment; for in that case omnia rati-
habitio retrotrahitur et mandato sequiparatur." *•* In Wilson v.
Tumman,"' the principle was laid down that "when A. does an act
as agent for B., without communication with C, C. cannot after-
wards, by adopting the act, make A. his agent, and incur liability
or take benefit under the act of A." This was applied to a per-
son's inability to make a sheriff his agent by adopting the torts of
the sheriff in seizing goods under a proper writ Where, however,
the judgment creditor has intermeddled, either by accompanying
Ihe sheriff's officers, or by giving a bond, the creditor himself may
become a trespasser,— certainly as to trespasses subsequently com-
mitted. In this case, however, his liability would not seem to de-
pend upon ratification.^'*
While ordinarily the conduct of a principal or master will be con-
strued favorably to ratification,^'" as to torts the fairer rule is that
to hold one responsible for an act not committed bv himself, nor
by his order, his adoption or an assent to the same must be clear
and explicit, and made with full knowledge of the tort, and that the
injured party claims that there has been a tort committed.^'* Thus,
where the husband makes false representations in order to sell land
162 4 Inst. 317; Shearw. Torts, 56, 57.
IBS Wilson V. Tumman, 6 Man. & G. 230; Filler v. Foesard, 7 Pa. St 5*0;
Morehouse v. Northrop, 33 CJonn. 380; Griswold v. Haven, 25 N. Y. 595; Na-
tional Life Ins. Co. v. Mlnch. 53 N. Y. 144; Lane v. Black, 21 W. Va. 617.
104 Knight V, Nelson, 117 Mass. 458; Lovejoy v. MuiTay, 3 Wall. 1; Meuham
T. Edmonson, 1 Bos. & P. 369.
i«» Johnson v. Carrere, 45 La. Ann. 847, 13 South. 195; Mechem, Ag. ft 177.
166 Tucker v. Jerrls, 75 Me. 184; West v. Shockley, 4 Har. 287; Kreger v.
Osbom, 7 Blackf. (Ind.) 74; Abbott v. Kimball, 19 Vt 551; Lewis v. Read, 13
Ch. 1] LIABILITY BY KATIFICATION. 45
standing in his name, but bonght with his wife*s money, her ao
ceptance of the purchase money without knowledge of the fraud is
not a ratification of it.**^ Where the ratification is expressed, even
the goTernment may become liable for the illegal act of its officer;
for example, in destroying powder.*'* The rule stated above is
carried so far that it has been insisted *'* that the ratification must
he expressed, and cannot be implied. While this would seem to be
extreme, and perhaps untenable ground, it is clear that, in addi-
tion to the knowledge of the facts to be ratified, there must also be
an intention to ratify. The intention to ratify cannot be inferred
from mere expressions of regret conveyed to the person injured,
and promises to investigate the circumstances, nor other acts which
may be treated as matters of friendship or favor merely.* •• Re-
tention of an employ^ who has committed an unauthorized wrong
is not ordinarily evidence of ratification of his wrong.*** Taken
in connection with other circumstances, — ^for example, promotion
after a brakeman had maltreated and assaulted a passenger,- —it
may be necessary for the jury to determine whether or not there
was a ratification.* ** Retention of benefit attaches liability. The
principal is held rather to be estopped from denying the liability
Mees. & W. 834; Buttiick v. I^owell, 1 Allon (Mass.) 172; Eastern Counth"^
Ry. V. Broom, 6 Exch. 314.
18T Brown v. Wright, 22 Ark. 20, 22 S. W. 1022. An action by an employer
against an employ^ for funds embezzled, and recovery of judgment,— the
amount sued for being baned on the representations of, and books kept by, the
employ^,— Is not a ratification of his concealed frauds. Grouch v. Uazlehurst
Lumber Co. (Miss.) 16 South. 496.
158 Wiggins V. U. S., 3 Ct. CI. 412.
"» Pig. Torts, 73.
i«o Roe V. Birkenhead, etc., Uy., 7 Exch. 36; Edwards v. London, etc., tty.,
5 C. P. 445-*40; Buttrick v. LowoU. 1 Allen (Mass.) 172.
i«i Gulf, O. & S. F. Ry. Co. v. Klrkbride, 79 Tex. 457, 15 S. W. 495; Gulf, C.
6 a P. Ry. Co. V. Reed, 80 Tex. 362, 15 S. W. 1105; Deacon v. Greenfield, 141
Pa. St. 467, 21 Atl. 0.jO. But retention and promotion of wantonly negligent
servant may be evidence of such ratification of his conduct as will make fhe
master liable even for exemplary damages. Bass v. Railway CJo., 42 Wis,
C54; Goddard v. Railway O)., 57 Me. 202; Perkins v. Railway Co., 55 Mo. 201.
But see Edelmann v. Transfer Co.. 3 Mo. A pp. 503.
i« Bass V. Chicago & N. W. Ry. Co., 42 Wis. (554. And see Haluptzok v.
Great Northern Ry. Co., 55 Minn. 446. 57 N. W. 144.
46 GENERAL NATURE OP TORTS. [Ch. 1
than to have ratified the condaet of the wrongdoer in its entirety.^**
It would appear, however, that generally, in the United States,
while appropriating a benefit may not be conclusive evidence of
ratification, *•* the court will not allow any one enjoying the benefit
of a wrong to deny the responsibility for it Thus, if a father
knowingly appropriates property converted by the independent tort
of his child, he makes himself liable for the child's wrong.* ••
16. Batiflcation properly is the equivalent of antecedent
authority. It proceeds on the theory of election, not of
estoppel, and establishes the relation of the master and
servant or principal and agrent trom, the beginning^. In
consequence —
(a) The person ratifying is liable for all torts commit-
ted by his adopted deputy, servant, or agent, in
the course of employment, and not merely those
which he specifically adopts. Satiflcation is to-
tal, not partial.
(b) Ratification does not ordinarily discharge the lia-
bility of tort feasors to third persons, but it does
as to the person ratifying.
Ratification establishes the relation of master and servant or
principal and agent ab initio. In Massachusetts, following Ilil-
168 Post, p. 268, "Fraud"; Pig. Torts, 71.
i«* Hyde v. Cooper, 20 Vt 552; Lewis v. Read, 13 Mees. & W. 834.
185 Hower v. Ulrich, 156 Pa. St 410, 27 Atl. 37. So if a partner wlUfully or
through mistake commits a trespass on timber land, and takes timber there-
from, bis copartner Is liable for the act, of which he may have known nothing,
if the firm retain the timber after the notification of the wrong done. U. S.
V. Baxter, 46 Fed. 350. Compare liability of employer of independent con-
tractor. Benton v. Beattie, 63 Vt. 180, 22 Atl. 422. Where an auditor of a
railroad company represented the shortage of a station agent to be $600, and
certain persons contributed that sum to make good the deficit, and It was
afterwards discovered that the shortage was larger, and thereupon the agent
was arrested. It wajs held that the railroad company had ratified the false,
though honest statements of the auditor by retainhig the money paid. Burke
T. Milwaukee, L. S. & W. Ky. Co., S3 Wis. 410, 53 N. W. 602. And see Dttan
V. Ilartfoi-d, etc., Co., 43 Conn. 434.
€h. 1] 1.1 ABILITY BY RATIPICATION. 47
lard V. Bichardson,*** It wa* held in Goomes v. Houghton ^•^ that
the contractor for a job, by accepting and paying for the work done
thereon by a mechanic without his prior order or authority, does
not render himself liable for injury caused to a third person by a
negligent act committed by the mechanic while doing the work, but
not a part or a result of the work itself. It is, however, recognized
generally that, if an agent exceed his authority, ratification of his
conduct proceeds, not on the principle of estoppel, but of election.' ^*
If a wrong is done by a complete stranger, ratification of what he
undertook to do generally, but not of the trespass directly, eonsti
tutes him a servant, and creates liability. Thus, if a sti'ang:'r de-
livers coal for a person, and in doing so does damage, that person,
by adopting the general employment, becomes liable for the spe-
cific wrong. ^Ratification goes to the relation, and establishes it
ab initio." ^'^ The adoption or ratification by a principal sff the
wrongful act of his agent may be implied from the conduct of the
principal. He cannot ratify the conduct in part, and repudiate in
part If he ratifies part, he ratifies all.*^**
Ratification does not release tort feasors. The liability of the
master or principal which follows ratification is additional, and the
wrongdoer also remains liable. So far as the liability of the latter
to third persons is concerned, the injured person is not a party to
the ratification, and cannot be compelled to lose his right of action
against the servant by any act of the master. Authority to do
wrong is never a defense.^^' It is accordingly immaterial whether
the authority to do wrong preceded or followed the wrongful act.
The liability of the principal is an additional, and not a substituted,
i«e 3 Gray (Mass.) 349.
1" 102 Mass. 211.
!•« Smith V. Ck>logan, 2 Term B. 188n; WeUiugtou v. Jacksou, 121 Mass. 157-
159; Metcalf v. WUliams, 144 Mass. 452, 11 N. E. 700; BuUard v. Moor, 158
Mass. 418-424, 33 N. E. 928.
i«» Dempsey v. Chambers, 154 Mass. 330, 28 N. E. 279; Nims v. Mt. Ilermon
Boys' School (ISa^) 160 Mass. 177, 35 N. E. 776.
170 Byne v. Hatcher, 75 Ga. 289; Mechem, Ag. 130» coUecting cases; Farmers'
Loan, etc., Co. v. Walworth, 1 N. Y. 433.
"1 Post, p. 286, "Liability of Ageui to Third Persons. " Wright v. Eaton,
7 Wis. .595.
48 GENKRAL kati:kf. of tobt.<. [Ch. I
one/^' But the proposition is not an aniyersal one. Where a
person assuming to act for a city, changed the grade of a street,
to the injury of an abutting landowner, and the city ratified his
act, though after suit brought, it was held that the act was justi-
fit^d.*"" A city is not generally liable for damages consequent ou
change of grade.' ^* As between the person ratifying the wrong,
and the wrongdoer, however, it would seem clear that by i*atifl(!a-
tion the principal and master assumes the responsibility of the
transaction, with all its advantages and all of its burdens. He haisi
conseuted to the wrong, and volenti non fit injuria. Ordinarily he
cannot recover from the wrongdoer.*'*
THEORY ON WHICH LIABILITY FOB TOBT ATTACHES.
17. One theory of liability for tort is that of absolute re-
sponsibility,— that a man acts at his peril. Another is
that liability is confined to moral shortcominics, and is
based on culpability. Neither, as a matter of fact, is ex-
clusively true. The law has pursued no consistent
course, ^^* but there are three main categrories of acts to
which responsibility is a£Blzed with reference to specific
harm:
(a) Acts done at peril with reference to that harm; ^
(b) Acts done willfully with reference to that harm;
(c) Acts done neglig^ently with reference to that harm.^
There is a definite theory of liability for a contract Besponsi-
* bility is based on consent, actual or implied."* There is a definite
th(H)ry of liability for crimes. Responsibility is based on intent,
^ i72Mechem, Ag. § 182.
173 Wolfe V. Pearson, 114 N. C. (521, 10 S. 11 2G4.
^74 Post, p. 140, "Damage Incident to Authorized Act"
iTB Hoffman v. Livingston, 46 N. Y. Super. Ct. 552; Pickett r. Pearsons,
17 Vt. 470; Woodward v. Suydam, 11 Ohio. 301; Bray v. Gunn, 53 Ga. 144;
Foster v. Rockwell, 104 Mass. 107.
i7«0. W. Holmes. Jr., 7 Am. Iaw Rev. 052; Holmes, Ck)m. Law, 79; Wa-
bash, St. L. & P. Ry. Co. V. Locke, 112 Ind. 404. 14 N. B. 39L
"7 John H. Wlgmore, In 7 Harv. Law Rev. 455, 456.
iT« Clark, Cont 3, 4, 752.
Ch. 1] THEORY ON WHICH LIABILITY FOR TORT ATTACHES. 49
actual or constnictive.^^* But there is no consistent theory as
to liabilitv for tort. As stated in the black-letter text, there are
three theories advanced: (1) The historical, based on absolute lia-
bility; (2) the philosophical, based on culpability; and (3) the prac-
tical, based on the actual state of the law. These will be considered
in order.
Absolute Liability.
Perhaps the commonest conception of liability in tort is expressed
by the classical phrase, that a man acts at his peril. He insures
the world against wrong on his part. The duty to avoid harm to
others isi regarded as absolute. Breach of that duty, and conse-
quent damage, is sufficient to create responsibility without reference
to his mental attitude, — that is, his consciousness or intention.
Whether legal wrong has been done for which the law affords
reparation in damages depends upon the nature of the conduct, and
cannot consistently be made to depend upon the motive of the person
doing it.*®** This view of the law had its origin in the early Ger-
manic conceptions of liability. These conceptions inclined to tlio
position that whenever harm was done some one must be held re*-
sponsible. There was no definite logic in the select i(m of the vic-
tim. "Tlie primitive notion instinctively visited liability on th(»
visible offending cause, whatever it might be, of a visible evil re-
gul^visi rpjj^, master was liable, both civilly and criminally, for
the wrongs of his servants.**'
The primitive conception of the law of torts is well expressed in
Lambert v. Bessey: *'^ *1n all civil acts the law doth not so much
regard the intent of the actor as the loss and damage of the party
suffering. ♦ ♦ ♦ For, though a man doth a lawful thing, yet,
if any damage due thereby befall another, he shall answer for it if
he could have avoided it." **The old writs in trespass did not
allege, nor was it necessary to show anything, savoring of culpa-
bility. It was enough that a certain event had hap]M»n(Hl; luid it
"• Clark, Cr. I^w, 43, 44.
180 Chambers v. Bnldwin. 91 Ky. 1121, 15 S. \V. 57. And see Jenkius v.
Fowler, 24 Pa. St. 308.
181 7 Harv. I^w Kev. 319.
182 Mr. Wigmore in 7 Harv. Law Rev. 317.
183 T. Raym. 421.
LAW OF TORTS— 4
60 GENERAL NATURE OF TORTS. [Ch. 1
was not even necessary that the act should have been done inten-
tionally, though innocently/''^* Tlius, in Leame v. Bray,*** Gross,
J., held that, if tlio injury be done by the act of the party himself nt
the time, or he be the immediate cause of it, though it happen ac-
cidentally, or by misfortune, yet he is answerable in trespass. In
Underwood v. Hewson,'*" the defendant was uncocking his gun-
It accidentally went off, and wounded a bystander. The defendaqt
was charged, and holden liable in trespass. Interference with
the person by a blow,*®" or restraining freedom of locomotion,***
or interference with real property by going upon it,*®* or by convert-
ing personal property to one's own use, as by taking it away, keeping,
usinjr, or destroying it,*** is generally regarded as conduct which
i«* 7 Am. Law Rev. (Jr>2.
186 3 East, 51K{. Here a person on a dark uight luul got on the wronjj side
of the road, and iujureil another, and it was held that trespass lay. In Grant
V. Moseley (1850) 29 Ala. 302, it was distinctly held that damages resultlusi
from an acfUleut conld be n'covere<l.
180 Strange, 590. This dtH-isIon has never been questioned. Cole v. Fisher,
11 Mass. 13(». And see Weaver v. Ward, Hob. 2S9, where a soldier was held
liable for accidentally shooting a comrade with whom he was practicing at
arms. In America it has been distinctly held that when an injury to an-
other is caused by an act that Avould liave amounted to trespass vi et armis
under the old syKtcm of action, as wherc one by the negligent handling of a
gun kills another, it is no defense that the act occurred through inadvoi to:i( e
and without the wrongdoer's intending it; that it must appear that the injury
was inevitable, and utterly without fault on the part of the alleged wrong-
doer. Morgan v. Cox. 22 Mo. 373. A hunter who kills a dog by mistake for
a wolf will be liable to the owner though he act in gtjod faith, and the doig
may look like a wolf, llanson v. Kltner. 31 111. Aiip. 241. And see Tayl«>r
V. Rainbow. 2 Hen. & M. (Va.) 423; Hodges v. Weltberger, <J T. B. Mon. 337;
Sullivan V. Murphy, 2 Miles (Pa.) 298; Welch v. Durand, 36 Conn. 382;
Chataigne v. Bei-geron, 10 La. Ann. 699.
187 Post, p. 434, "Assault and Battery." And see Chapman v. State, 78 Ala.
463.
188 Soo post, p. 417, "False Imprisonment"
180 Brown v. Collins, 53 N. H. 442; Castle v. Duryee. 2 Keyes (N. Y.) KM).
Post, p. 660, "Trespass." Cuille v. Swan, 19 Johns. (N. Y.) 381: Striegel v.
Moore, 55 Iowa, 88, 7 N. W. 413.
i»o Post, p. 706, "Conversion." Boyce v. Brockw.iy, 31 N. Y. 490; Hollins
V. Fowler. L. R. 7 H. L. 757; Kten v. Luyster. (Ji) N. Y. 252, i)er Allen. J.
Generally, as to trespass to chattels, see Morgan v. Cox, ante, note 186; Tally
V. Ayera, 3 Sneed (Tenn.) 677; Jennings v. Fundeburg, 4 McC/ord (S. G.) 161.
Ch. IJ THEORY OX WHICH LIABILITY POIl TORT ATTACHK3. 51
violates absolute duties, and which creates corresponding absolute
rights to redress. So, if an act complained of is a nuisance, the
person creating and maintaining it is said to be absolutely liable,
no matter how proper his motives and how useful his purpose.^**
Legal remedies being substituted for personal war, it was nat-
ural that liability for torts should be regarded from the point of
view of the man who suffered, and not from the point of view of the
intention or mental attitude of the cause of that harm. Moreover,
the distinction between rights that were absolute and the rights
that were merely natural as distinguished from rights acquired,
was not constantly present before the minds of the judges. And, his-
torically, the injuries most frequent of occurrence were injuries di-
rectly to the perHon or property. Prior to the statute of Westm. 11.
there were none of the modern actions on the case. These are, in-
deed, the bulk of the present law of torts.
The category of things done at peril ha^ been materially increased
by an important class of cases more or less generally recognized.
These cases involve a duty to insure safety^"' as distinguished from
the general class now under consideration, namely, the duty to in-
sure against wrong generally, on the one hand, and from the duty
merely to exercise proper care in view of all circumstances, on the
other. Thus, in Rylands v. Fletcher,**' it was held that if a person
j^athers water in dangerous quantities on his own land, and it es-
capes and damages another's, the latter can recover, although the
former exercised due cai*e. A person is bound, under such cir-
cumstances, to insure the safety of third i>ersons against harm from
the dangerous agency he had collected on his premises.
Tlhtary of Culpability.
Great jurisprudents have inclined to trace responsibility for torts
to the mental element, as is done in the cases of crimes and con-
tracts. Liability they would confine to moral shortcomings. Ac-
cording to Austin, whose theory is that of a criminalist, the char-
191 This do«« not really involve reasoning in a circle as much as might at
first appear. Consideration of cases where nuisance and breach of duty to
insure safety seem to be identical will satisfy on this point.
i»2Pol. Torts, c. 12.
108 L. R. 1 Exch. 205. Comiwre I^see v. Buchanan, 51 N. Y. 470.
52 GKNKRAL NATUUE OF TOBTS. [Cll. I
acteristic feature of law is a sanction threatened or imposed by the
sovereign for disobedience to the soyereign's command, and the
greater part of the law makes a man civilly answerable for break-
ing it. He is compelled to regard the liability to an action as that
sanction, or, in other words, as a penalty for disobedience, and
accordingly liability ought only to be based on personal fault.^**
Liability is so based in the wrongs of fraud, deceit, slander, libel, and
malicious prosecution. And, even in cases of damage by direct act
of force, it is insisted that the rule is that the "plaintiff must come
prepared with evidence to show either that the intention was un-
lawful or that the defendant was in fault; for, if the injury was
unavoidable and the conduct of the dof<*ndant free from blame, he
will not be liable." ^°* Critical modern iuvextigation is not only ques-
i»* Holmes, Com. T^w, 77-129. "I assumed • • • that intention, negli-
jorenee, heedlessness, or rashness is a necessary ingredlont in injury or wrong.
• ♦ ♦ Now, there can obviously be no broach of duty— no rupture of the
vinculum juri.s— unless the duty has some binding force; that is to say, unless
the sanction were caiMible of operating as a motive to the fulfiUment of the
duty. But sanctions operate upon the obliged in a twofold manner; that is to
say, they counteract tlio motives or desires which prompt to a breach of duty,
and they tend to excite the attention which the fulfillment of duty requires.
And unless the party knew that he was violating his duty, or unless he might
have known he was violating his duty, the sanction could not operate at ilie
moment of the wrong, to tlie end of impelling him to the act which tlie law
en joins, or of deterring him from the act wiiich the law forbids. Consequently,
injury or wrang supposes unlawful intention or unlawful inadvertence. And
it appears from the foregoing analysis that every mode of unlawful inadver-
tence must be one of those which are styled negligence, heedlessness, or rash-
ness. The only Instance wherein intention or inadvertence is not an ingredient
in breach of duty is furnished by the law of England. • • • Unlawful inten-
tion or unlawful Inadvertence is therefore af the essence of injuiy, and for this
reason: that the sanction could not have operated upon the party as a motive
to the fulfillment of the duty, imlcss at the moment imiuodlatoly preceding the
wrong he had been conscious that he was violating his duty, or unless he would
have been conscious that he was violating his duty If he had adverted or at-
tended as he ought.'* 1 Aust. .Tur. 321).
i»8 Sliaw, C. J., in Brown v. KendaU, C Cush. 21)2. "It is impossible to con-
ceive the idea of a tort as separate and apart from an intentional wrong and
injury, or such negligence or other misconduct as nece.s.Harily to imply such
wrong or injury. A scienter Is the very gist of o tort To say that one may
recover in tort without proving a scienter is to say that he may omit from his-
Cll. 1] THEORY ON WHICH J.IABILITY FOR TORT ATTACHE.-*. 53
tioning, but denying,^"" and courtR are recognizing^*^ many excep-
tions to, the clearest eases of absolute liability. The idea of absolute
duty may remain^ but not the idea of absolute right as an inevitable
consequence of a violation of a material right.^"® The change has been
wrought largely through recognition of the doctrine that a person
cannot be held liable for a wrong of which he was not rationally a
cause. This theory accords with the common-sense view of the
laws, — that no man should be held responsible in damages unless
lie is at fault.
Tnie Theary.
The true view, as Mr. Holmes has pointed out, is that the law has
not adopted any logically consistent theory of liability.*** At the
one extreme there are cases in which culpability is not an element,
in which the defendant is held liable although he may not be to
blame; as trespass to person or property, and breach of duty to in-
sure safety. At the other extreme moral wrong is material to
wrongs of malice and fraud."**® Negligence is a common battle
ground. It is vigorously insisted that negligence is and that it is
not a state of the mind; **** and it is clear that the very authorities
who deny that negligence is a state of the mind recognize that as
proof the chief element of bis case.** McCrary, J., In Sblppen v. Bowen, 48 Fed.
659.
ift'iPost. p. 815. "XegllKence" ; Brown v. Kendall, 6 Cush. 282, Harvey v.
Dunlop, Iini & D. 193; Nltro-Glycerine Case, 15 Wall. 524; Lansing v. Stone,
37 Barb. ir»; Center v. Finney, 17 Barb. 94; Morris v. Plntt, 32 Conn. 7."»;
Paxton V. B<»yer, 07 III. 132; Dygert v. Bradley, 8 Wend. 470; 1 Hill, Torts, c.
5, f 9; 2 Greenl. Ev. 85.
i»^ See, for instance, cases of trespass where tbe act is involuntary, and
cases of damage by cutting timber. Intentionally or unintentionally. Post, p.
660, "Trespass." And see iwst, p. 734, "Conversion," "Ministerial DuUes." As-
sault and battery, see Holmes v. Mather, L. R. 10 Exch. 201 ; Stanley v. Pow-
ell, 1 Q. B. 80 fOl); AmcR, Torts, and cases cited in note at page 64. Nuisance,
-high board fence cases. Post, p. 749. Generally, see Am. & Eng. Enc. Law,
tit. "Negligence." In the absence of negligence, a man who accidentally shooU
another Is not liable in tort. Stanley v. Powell, 1 Q. B. 80 (91).
i««Townsh. Slnnd. & L.
183 Holmes, Com. Law, 79-81; 7 Am. Law Reg. 48, 052.
200 Post, p. 560, "Deceit."
-'>i Post, p. 820. "Negligence."
54 GENERAL NATURE OF TORTS. [Ch. 1
800B as a defendant acts not inadvertently, but willfully, his wrong
is no longer negligence.'***
It would seem that the theory of personal culpability as the basis
of liability in tort is gaining ground. This will appear in subsequent
discussion in different degrees and with varying certainty, inter alia,
in (a) cases as to liability of persons of peculiar status (as of infants
in negligence);'®* (b) cases of trespass to persons'®* and of con-
version (as in performances of ministerial duties);'®* (c) cases of
libel and slander; '®® (d) cases of negligence and breach of duty to
insure safety;'®^ (e) malicious use of property;'®* (f) generally
cases of conduct actionable because of wrong motive (as in more re-
cent developments of malicious conspiracy); '®® and (g) in the devel-
opment of the doctrine of connection as cause.' ^®
THE LAW SUBSTANTIVE AS TO MENTAL ATTITUDE OP THE
TOBT FEASOR.
18: The law of torts regards primarily, and in some eases
exclusively, the conduct and not the mental attitude of the
wrongdoer. Intentional wrongdoing may aggravate dam-
ages "vvhich the sufferer may be entitled to recover.
It is true that, in many instances, liability for torts is based on the
wrong done, and not on the reason wiiy.^^^ The law of torts treats
every peraon as intending his conduct, and holds him responsible for
2oa 16 Am. & Euif. Enc. Iaw, tit. "Neglljfence," p. 38W.
208 Post, p. 871.
ao4 Holmes v. Mather, L. U. 10 Kxch. 201; Stanley v. Powell, 1 Q. B. 86 (91).
ao6 Post, p. 734, •'Couvereion."
206 Post, p. 525, *'Libel and Slander."
207 Cork V. Blossom, 102 Mass. 330, 38 N. E. 4m, 8 Harv. Law Rev. 225.
Berger Gas Li^ht Co., 62 N. W. 33G and see exceptions enumerated,— Post,
p. 832, "Negligence." The fact that responsibility for barm consequent upon
commercial use of electricity has been subjected to the rules of negligence,
and not governed by the doctrine of duty to insure safety,— post, 863, "Neg-
ligence," is significant
20 8 Post, p. 557.
209 Post, p. 637.
210 Post, p. 61. .
211 "Intention has found no place on the Knjrlish law of torts." Lord Wen-
sleydale, Chasemore v. Kichards, 7 H. L. Cas. 207.
ell. 1] LAW SrBiTANTIVE AS TO MENTAL ATTITUDE OF TOUT FEASOR, 55
its natural and probable consequence. Statements of this character,
however, are likely to be too sweeping, as will appear in the analysis
of mental attitude which follows. The law of torts is designed,
primarily, to compensate for injury done.**' The effect of intention
to do wrong is to increase the amount of damages recoverable by
the person injured. This is a survival from the original criminal
character of the law of torts. Thus, while good faith vnll not excuse
a trespass, bad faith may ajri^ravate it.***
19. Mere intention to do wrong, or mere malice, not re-
sulting in conduct which violates a right or duty, is not
actionable.
Mere intention to do wrong, not carried into effect, dcK^s not con-
stitute a tort. ^Tou cannot sue a man for the state of his mind.
A man may conspire to commit murder, but until something is done
amounting to assault and battery there is no civil liability." An
act contemplated but not yet accomplished, though it may some-
times be ground for preventive remedies, cannot supi>ort an action
for a tort.^" Thus, a mere agreement between two or more par-
sons to convert property of another, without an actual intermed-
dling with it, does not give the owner a cause of action against the
parties to the agreement.*^* The original view of the law was that
an act done in pursuance of an unlawful intent is no ground for an
action unless damage recognized by the law has resulted.*^' Mere
212 Post, p. 360, "CJompeusatory Damages."
213 Cubit V. O'Dett, 51 Mich. 347, 16 N. W. 679. Post, p. 302, "Exemplary
Damages."
215 Shcple V. Page, 12 Vt 510; KfmbaU v. Harman, 34 Md. 407; Heron r.
Hughes, 25 Cal. 555; Jones v. Baker, 7 Cow. 445; Pngo v. Parker, 43 N. H.
363; Taylor v. BidweU, 65 Cal. 489, 4 Pae. 401. Just as at criminal law, there
must not only be wrongful intent, but act. Bish. Cr. Law, § 206; Clark, Or.
Law, 45.
2i« Heron v. Hughes, 25 Cal. 555.
217 Morgan v. BIIrr. 2 Mass. Ill; State t. Adams, 108 Mo. 208. 18 S. W.
1000; Benjamin v. Wheeler, 8 Gray, 409; Panttm v. Holland, 17 Johns. 92;
Haycraft v. Creasy, 2 East. 92; 2 Thomp. Neg. 739; Estey v. Smith, 45 Mich.
402, 8 N. W. 83; Covanhovan v. Hart, 21 Pa. St. 495; Clinton t. Myers, 40 N.
Y. 511; Frazier v. Brown, 12 Ohio, 204; Thomasson v. Agnew. 24 Miss. 93;
Brothers T. Morris, 40 Vt 460; Klff v. Youmans, 813 N, Y. 324.
56 OKNERAL NATUKK OF T0RT3. [Ch. I
malice is not per se actionable.^^* Bad motive for conduct bj itaelf
iH no tort Wrongful intention cannot make lawful conduct un-
lawful,^*" or a proper intention make unlawful conduct lawful."*
MaliciouH motives make a bad case worse, but that cannot make that
wrong which in its own essence is lawful." *** "The best intentioa
cannot prevent an act from being a nuisance when it otherwise
is such; and the worst intention cannot make an act a nuisance
wli(»n it otherwise is not." *'*
To constitute a tort, there must also be a violation of a legal duty.
Thus, malice does not make the diversion of subterranean waters
actionable if such diversion would not be actionable if the motive
were a proper one.^^' It cannot be said that this reasoning has
b(*on entirely abandoned. But in many cases it has not been fol-
lowed, and tliere is a distinct tendency to determine liability by
referenc. to the state of the defendant's mind. Like most a priori
generalizations, tliis has been tlie basis of much dispute, and, per-
haps, of much error."* As the law of torts tends to be regulated
«i*N<>nT0B8 V. Otis Bros.. 152 l»a. 481. 2o Atl. 575; Boy son v. Thorn. 9S
Cal. 578, .'W Vac. 41)2. And see post, p. 8r>, "Damnum Absque Injuria."
210 Hunt V. Slmonds, 19 Mo. 583; Soutli R. Bank v. Suffolk Bank, 27 Vt.
505; Auburn & Cato P. R. Co. v. Douglass, 9 N. Y. 444; White v. Carroll, 42
N. Y. 101; StornH v. Sampson. 59 Me. 5IJS-572; Cunningham v. Brown, 18 Vt.
123; Dunlap v. (ilidden. 31 Me. 435; Payne v. Railway Co., 13 T.pa. 507;
Huniplnvy v. DonplaRS, 11 Vt. 22; Prlckett v. Groatrex, 7 Law T. VVX
220 Amlck V. O'Hara, il lUackf. 258; Porter v. 'Hiomas, 23 Ga. 4U7; Moran
V. 8mell, 5 W. Va. 2(J; Ex parte MIlllRan, 4 Wall. 2.
221 Hey wood v. Tlllson, 75 Me. 225; Phelps v. Nowlen. 72 N. Y. 3!).
2aa Black. J., in .TenkinH v. Fowler. 24 Pa. St. 308-310. And see Fowler v.
Jenkins. 28 Pa. St. 1H\; Honncll v. Smith. .53 Iowa. 281.
228 Fvazior v. Brown. 12 Ohio, 21)4; Chatfteld v. Wilson, 28 Vt. 49. So in
Mahan v. Brown, 13 Wond. 2t;o, maliciously eretiinj; a high fence on de-
fendant's own premises was held not to be actionable. "The plaintiff in this
cas(» has only been refused the use of that which does not belong to her; and,
whether the motive of defendant is good or bad, she had no legal cause of
complaint." And see Smith v. Johnson, 70 Pa. St. 191; Thornton v. Thorn-
ton, ()3 N. C. 211; Jenks v. Williams, 115 Mass. 217; Harwood v. Tlirmp-
kins, 24 N. J. I^w. 425; Pantou v. Holland, 17 Johns. 92. Cf. Gallagher v.
Dodge, 48 Conn. 387 (as to statutory prohibition of malicious erection)-
2 24 The confusion which has arisen as to when a wrongful Intention Is es-
sential to a cause of action Is well Illustrated in the cases, subsequently con-
sidered, as to liabiiity of election otlicei*s for their torts. Post. c. 2. •*Execu-
Ch. 1] LAW SUBSTAKTIVK AS TO MENTAL ATTITUDE OF TORT FKASOR. 57
by admitted general principleB, it inclines to refer, for a basis of
liability, to some mental element analogous to consent in contract
and intent in crimes. There is recognized an incrc^asingly large
and important class of cases to which the principle referred to does
not apply. Thus, there are uses of property resulting in damnum
absque injuria if the motive of defendant be proper, but which may
be the basis of recovery if defendant be guilty of malice.*'* And
especially in the legal aspect of modem combinations of employers
or of employes, and of vendors and of vendees, the question of mo-
tive is becoming of the utmost importance.***
20. The wrongdoer may be held liable in tort for his
conduct, although he may not have been consciouB of
wrongdoing.
•
Thus, there may be intention to do the act which produces injury
without intention of violating the rights of another, and despite the
exercise of due care in the entire transaction. If a person buys
and takes away property in violation of the rights of the owner, he
is liable for the value thereof in an action for conversion.**'^ If one
by bona fide mistake, notwithstanding every precaution to keep
within his own lines, goes upon the lands of another, he is liable in
trespass.*** Again, there may be intention to do a lawful act, and
liability may attacli for injuries because of unintended conse-
tive Officers." And see arrangement of rights and wronpjs as interpreted by
Mr. Austin (2 Jur. table 8), at page 312. Mr. Brice (1 Am. Com., 3d. Ed.) says:
''He [Mr. Justice Blackstone], as was natural in a lawyer and a man of let-
ters, described rather its theory than its practice, and by its theory was
many years behind its practice."
2 2SThus, It was said In Chesley v. King, 74 Me. 164: "It cannot be re-
garded as a maxim of universal application that malicious motives cannot
make that a wrong which in its own essence is lawful." And see Stevens v.
Kelley, 78 Me. 445, 0 Atl. 8G8. To Induce one to break a contract, if there
is neither malice nor fraud, is not actionable. McCann v. Wolff, 28 Mo.
App. 447. But malicious interference with contract is a generally recog-
nized tort. Lumley v. Gye, 2 El. & Bl. 21G; post, p. C»34.
2 20 Post, p- 045, "Conspiracy."
227 Hilbery v. Hatton, 2 Hurl. & C. 822.
22 « Bkien Avon Coal Co. v. McCulloh, 59 Md. 4CKJ; Hazel ton y. Week, 40
Wis. 6G1. 6 N. W. 309; Cate v. Cate, 44 N. H. 211.
58 GENERAL NATURE OF TORTS. [Ch- 1
quenceB, without reference to the exercise of care. Thus, in an
UHHault there may be unintentional injury from an intentional act.
If, in sport, one throws something at another, and injury to a third
I>erBon ensues, this is actionable.**' As to this general line of
thought, however, there is not a unanimity of opinion.
Again, there may be no intention of doing harm, but, for want of
due care to guard against injury to others, conduct innocent in
itself may become tortious. This want of advertence to natural
and probable consequences attaches liability by what is called
"negligence." Thus, if a person's servant drive so carelessly in a
public street as to come into collision with a carriage, and thereby
cause the horse attached to the same to take fright and run awaj,
and injure another's person and property, the master is liable in
torf' If a druggist negligeutly delivers a harmful drug when a
harmless one is asked for, the absence of intention is no excuse.-^*
What is "due care" when the duty of exercising it exists will be
subsequently discussed under "Negligence."
A distinction is sometimes drawn between negligence and rash-
ness or heedlessness. Kashness or heedlessness is said to be such
a disregard of the rights of others as is shown in the probability
that harm will result being foreseen more or less clearly.*** Thus,
if an owner leaves a horse and cart in the streets without hitching
the horse, or leaving some one to watch it, and the horse, being
struck by a stranger, runs aw^ay, and does damage, the owner is
liable, though the horse was a quiet one. "If a man chooses to
leave a cart standing in the street, he must take the risk of any mis-
220 Petoraon v. Haffner, 59 Ind. 130; Perkins v. Stein, 94 Ky. 433/22 S. \V,
1)49. And see Corning v. Ck)mlng, 6 N. Y. 97; Wright v. Clark, 50 Vt 130;
Cogdell V. Yett, 1 Coldw. 230; Knott v. Wagner, 16 Lea (Tenn.) 481; Ander-
son V. Arnold, 79 Ky. 370; James v. Campbell, 5 Car. & P. 372; BaU v. Axteu,
4 Fost. & F. 1019.
281 McDonald v. Snelling, 14 Allen (Mass.) 290.
232 Brown v. Marshall, 47 Mich. 57G. 11 N. W. 392; Davis v. Guarnieri. 4.>
Ohio St. 470, 15 N. E. 350.
283Aust. Jur. lect. 3; Innes. Torts, p. 35, § 3G; Whart. Neg. § 12. Neg-
ligence and rashness both suppose unconsciousness. In negligence the party
does not think of a given act; in rashness the party does not think of a given
consequence. Aust. Jur. lect. 3.
Ch. 1] LAW SUBSTANTIVE AS TO MENTAL ATTITUDK OF TORT FEASOR. 51)
chief that may be done." -■* The distinction is a fine one at best.
No nsefal purpose would seem subserved by its use. It has cer-
tainly not become embodied in current language of decision. * When,
however, the disregard for the rights of others amounts to wanton-
ness, or a person ceases to be inadvertent, and intentionally injures
another, then the wrong, according to what is perhaps the better
opinioD, ceases to be negligence, and becomes willful.
The truth of the matter would seem to be that negligence, so far
as the mental attitude of the person charged with that kind of
wrongdoing is concerned, is used in a double sense. It sometimes
refers to a breach of duty unqualified in its nature, as the negligent
keeping of fire,^^' negligent storage of water,*'* or the negligent
keeping of dangerous animals.*'^ In these cases, the conduct of
the wrongdoer may haA'^e been perfectly reasonable and careful
throughout, and yet he may be liable. IJut negligent driving, or
the negligent handling of a gun, indicates a very different source of
liability, arising, not from the nature of the thing done, but from
want of forethought in the doing of it."'
21. There may also be an Intention, not only to do an
act, bat also to violate a right in so doing; in other words,
actionable conduct may be accompanied by consciousness
of wrongdoing.**
Malice, in legal phraseology, signifies the contemplation of the
doing of a wrongful act towards another person. In its legal sense,
it ranges from malevolence, as in an injury, committed in revenge,
to the mere conscious ^iolation of a right without just cause or
2»* lUidge v. (Goodwill. 5 Car. & P. 190. And see X^ake Shore & M. S. R.
Co. v. Bodemer, 139 lU. HOii, 29 N. B. 692; Kansas Citj', M. & B. R. Go, v.
Crocker, 95 Ala. 412, 11 SoutU. 262.
235 Jones v. FG8tIuhi;r R. Co., L. R. 3 Q. B. 7;j;J.
23eRyiand8 y. Fletcher. L. R. 1 Exch. 265; h. R. 3 H. L. 330.
23T May V. Burdett, 9 Q. B. 101. Blasting, injuring plaintiff's horse. Ben-
ner v. Atlantic Dredging Co.. 58 Hun. 359, 12 N. Y. Supp. 181.
SS8 Clerk & L. Torts, 11; Pol. Torts, 'Thities to Insure Safety."
230 Reeves v. State, 95 Ala. 31, 11 South. 158-1(33; U. S. t. Harper, 33 Fed.
471; U. S. V. Taintor. 11 Blatchf. 374, Fed. Cas. No. 16,428.
60 GENERAL NATURE OF TORTS. [Ch. 1
excuse, as in the case of a mere trespass.*^^ Malice is said to have
been present whenever the injurer contemplated harm to the person
injured;* though he may also have entertained a desire to benefit
himself, and though the harm contemplated may be merely inci-
dental to the fruition of that desire. It is present, therefore,
though in different degrees, in the highwayman who murders a man
for his purse, and the trespasser who gets over a fence to take an
apple.*" Of course, the malice need not always be for the benefit
of the wrongdoer.**' Whenever there is a sinister or improper motive
actually present in the mind of the wrongdoer, the malice is said
to be malice in fact, express malice, or actual malice.**' This is
proved by evidence as to the state of the mind of the wrongdoer.
Malice in law, or implied malice, does not refer to the consciousness
of the wrongdoer; nor to motive, but to knowledge of wrongdoing.
It is the inference of law from facts in evidence. It is proved by
showing actual occurrences.***
Malice in law or in fact is an essential ingredient of certain forms
of specific wrongs or torts, such as malicious abuse of process,
malicious prosecution, libel and slander, fraud and deceit**'
In fraud, it is sometimes contended that action lies only for false
representations, but there is authority for sustaining such an ac-
tion upon negligent representations.^**
84 0 Innes, Torts, 41.
2*1 Id.
2*2 Chesley v. King. 74 Mo. 104.
2*3 Smitli V. Rodecap. 5 Ind. App. 78, 31 N. E. 47i); Rainsoy v. Cheek, l()li
N. (\ 270. 13 S. E. 775. Whether or not the fact that defendant's conduct
complained of was intended as a Joke may avail as a defense depends upon a
reasonable expectation of a practical joke from antecedent conduct Wart-
man V. Swindell, 54 N. J. I^aw, 589. 25 All. :\:ti\.
2**Townsh. Sland. & L.; post, p. 555, **Malicious Wrongs." Malice may
be found either in a wrongful motive, or. in many cases, in a wrongful act,
whatever the motive. Bi^'olow, Torts. r>, note 1. Malice in law may arise
from an act done wrongfully and willfully, without reasonable excuse or
probable cause, not necessarily only from an act done from ill feeling, spite,
or desire to injure another. Tucker v. Cannon, 32 Neb. 444. 49 N. W. 43r».
24 6 Post, pp. G32, 002, 512. 558.
2*0 Post, p. 5(i0. **I)eceit."
Ch. IJ CONNECTION AS CAUSE. 61
CONNECTION AS CAUSE.
22. Liability for conduct dooB not attach tmless the con-
duct was the legal cause of the injury complained of.
As Id nature every change is the result of some cause, so it is in
the legal relations between man and man. The determination of
legal cause has three principal objects: (a) that where there has
been a wrong committed, for which liability should attach, the per-
son who is to be held answerable in an action in a court of common
law should bo selected; (b) that if the person injured be himself a
wrongdoer, in any respect, it can be determined whether or not
his wrongdoing should disentitle him from recovering; and (c)
that the extent of the injurious consequences for which the person
thus ascertained to be reHponsible to such injured person, not dis
entitled, be fixed.
A man is responsible for his own conduct only. In determining
liability for a given harm suffered, the fundamental question is,
did the party charged cause ^he harm? In ascertaining this the
courts naturally select the proximate as distinguished from a re*
mote, cause. As Lord Bacon said, **It were infinite for the law
to judge of cases and other impulsions one of another, and therefore
contenteth itself with the immediate cause, and judgeth of acts by
them, without looking to any further degree." **' "In jure, non re-
mota causa sed proxima spectatur." *** So far as mere definition is
concerned, that of Jenkins, J., in Qoodlander Mill Co. v. Standard
Oil Co.,'*® is as adequate as any: '*The proximate cause of an
injury is that which, in natural and continuous sequence, unbroken
hy any efficient intervening cause, produces the injury, and without
which the result would not have occurred. ♦ • ♦ The remote
cause is that cause w^hich some independent force merely took ad-
vantage of to accomplish something not the probable or natural
eflfect thereof.*' But what is a proximate cause is a matter requir-
ing great nicety to determine.
2*7 Bac. Max, Kcjr. 1.
2*s Broom, Leg. Max. 216-228, 8r>3: Hong v. Railroad Co., 85 Pa. St. 29:^.
2^0 11 C. C. A. 2."i3. 03 Fed. 400-407.
62 GENKRAL NATUKE OF T«RTS. £Ch. 1
23. If the damage complained of would have ensued not-
withstanding the conduct complained of, then such con-
duct is not a cause.
A cause is a necessary antecedent. It must be a causa sine qua
non of the damage complained of. If, however, the damage would
have occurred whether defendant had done his duty or not, then the
defendant, even though a wrongdoer, is not the cause of the wrong-
Therefore, where horses became frightened, and ran into a hole in
the ice, near a highway, negligently left unguarded, and were
drowned, it was held that their owner, though free from negligence,
could not recover from the person whose duty it was to place a
guard around the hole, if their speed was so great that a guard
would not have prevented the casualty.***^ Conversely, plaintiflTs
own wrong does not bar his recovery, if the injury complained of
would hav(? happened just the same, notwithstanding his improper
conduct.**^
24. The defendant's wrongful conduct may have been so
connected with the damage complained of that the damage
would not have been done, except for the conduct, and
still the conduct may not be the cause.
Defendant's conduct may be a necessary antecedent of the harm
complained of, and may be wrongful, and still not be the juridical
cause of the harm.*°* The rule of law is that negligence, to render
defendant liable, must be the causa causans or proximate cause,
2 60 Sowles v. 3iIoore. 05 Vt. 322, 2(5 Atl. 021). TLe law is not different where
defendant's duty to Runrd was statutory. Stncy v. Kniokerbocker Ice Co.,
84 Wis. 614. 54 N. W. 1091. Contrast Union St. Uy. Co. r. Stone. 54 Kan.
83, 37 Pac. 1012.
asi Post, p. 959, "Contributory NeijllReuce."
SC2 Thus, nn Iron post used as a barber's slpn stood on the sidewalk six
Inches from the curb. It was not fastened to the sidewalk, except by threo
IJi-ongs projecting from the base into holes drilled in the sidewalk. The post
had stood thei% for IS months, when defendant's seivnnt negligently backed
his wagon against the curb, so that the projecting end of tlic wagon knocked
the post over upon plaintiff. It was held that the act of defendant's servant,
and not the act of placing the post there, was the proximate cause of the acci-
dent Wolff Manuf'g Co. v. WHsun, 152 111. 9, 3S N. E. 094.
Ch. 1] CONNKCTIOX AS CAUSE. t>3
of the injury, and not merely a causa sine qua non.'°* But the
line as to this matter is often a fine one. Thus, where a person
carelessly left another's bars down, in consequence ot which the
latter's sheep were destroyed by bears, the court denied the right
to recover. The court, however, was much divided in reasoning.'**
The coDchision would not be accepted as law in many jurisdic-
tions.*** Essentially the same idea is often put in other words by
saying that a defendant is not liable when his alleged wrongful ^
conduct was a condition, and not a cause.^*'
Condiiiaii not Cuuse.
The courts are entirely agreed that when defendant's wrongful
conduct is the condition of the harm complained of, and not the
proximate cause, then defendant is not liable in torf ' But they
are by no means agreed as to what is the difference between a caum*
and a condition. Thus, delay in performance of a contract,"*' or
wrong in the performance of a contract, resulting in delay, whereby
damage ensues,*** which but for such delay would not have occurred,
»»»Per Keny, C. B.. in Ivords Bailiffs v. Corporation of Trinity House.
L. R. 5 Exch. 204, affirmed L. R. 7 Kxch. 247. Here, however, plaintiff was
beld to be the proximate cause.
2»* Gllman v. Noyes. 57 N. H. 627.
256 Damages are generally regarded afi proximate If they are natural and
probable consequences, whether they could or could not be foreseen. The
court in the case argued that such consequences bliould have been anticipated.
See opinion of Ladd, J., Gilmnn v. Xoyes. r>7 \. H. ««!.
256 "A condition is a mechanical antecedent without causal x>ower. A
<*ause is the responsible voluntary a^ent changing tlie ordinary course of
nature." Ticero de Officii, lib. 1. clttMl In Whart. Neg. 824.
26T Whart. Neg. §§ So, 8G.
25S Thus, failure to gin cotton was held the condition of Its subsequent
burnhig. James v. James. 58 Ark. 1.j7, 23 S. W. 1099; Chicago. St. L. & P.
R. Co. V. Williams, 131 Ind. 30, 30 N. E. 696; MarUn v. St. Louis, I. M. & S.
Uy. Co., 55 Ark. 510, 19 S. W. 314; Doming v. Merchants' Cotton-Pref»a &
Storage Co.. 90 Tenn. 306, 17 S, W. 89; Missouri Pac. Ry. Co. v. Cullprs, 81
Tex. 382. 17 S. W. 19; Chicago, St. L. & P. R. Co. v. Barnes. 2 Ind. Apj).
213, 28 N. E. 328; St. Louis, I. M. & S. Ry. Co. v. Commercial Union Ins. Cc,
13?) U. S. 223, 11 Sup. Ct. 554.
239 In failing to tran8ix)rt in time. Iloia v. Kvansville & T. II. R. C*).,
{Ind. App.) 35 N. E. 703,— <'itpd by counsel for the receivers of Railroad Co.
V. Reeves, 10 Wall. 170; Morrison v. Davis, 20 Pa. St. 171; Denny v. Rail-
64 GKMSUAL NATUUE OF TORTS. [Ch. 1
is a condition, not a cause. But there is much disagreement on
the point. Perhaps the best illustration of what is commonly
rej^arded as a condition, as distinguished from a cause, is to be
found in the cases subsequently discussed, where the damage com-
plained of could not have occurred, except for plaintifTs wrong-
doing, and yet where plaintiff was allowed to recover because such
wrong was not the legal cause of the damage complained of.'"**
The distinction between cause and condition would be valuable, if
there were any definite standard for determining what is a cause
and what is a condition. The only standard by which this can be
determined is the? same as that which determines a proximate from
a remote cause; for example, the test of natural and probable con-
sequences. Accordingly, "condition'' or ^'occasion,^' while affording
a convenient verbal distinction, is, in use, likely to mislead think-
ers into a conviction that they have something which they have not.
Lievitable AccidenL
The English doctrine has been said, on high authority, to be that
an accident not avoidable by any such precaution as a reasonable
man could be expected to take is a good defense to an action for
damages.'^^ A more generally accepted view, however, is that:
road Co., 13 Gray, 481; St. I^uis. I. M. & S. Ry. Co. v. Commeivial Union
Ins. Co., 130 XT. S. 223, 11 Sup. Ct. .V»4; New York Lighterage & Ti-ansp. Co.
V. Pennsylvania R. Co., 43 Fed. 172; Iloadley v. Transportation Co., 11.'>
Mass. 304.
260 Chapter 2, post; and see Neweomb v. Boston Protective Depai'tnient,
140 Mass. 596, 16 N. B. 5oo; post, "Contributory Negligence."
2«i Fraser, Torts, 17; Pol. Torts, c. 4, subds. 8, 9. And see Innes, Torts, IS,
19, to the effect that an inevitable nccident has never been defined, and
seems properly to mean that which is produced by unpreventable physical
Influence, which cannot be traced to the Instnnnentallty of any person; cit-
ing Sharp V. Powell, L. R. 7 C. P. 253. In other words, When the harm
complained of is the result of circumstances, the bringing of which cannot
be traced to the conduct of any person, it is not an injury. Innes, Torts, 18.
"No one is liable for a mischief resulting fi*om accident or chance casus; that
is to say, from some event, other than act of his own, which he was unable
to foresee, or foreseeing, was unable to pi-event. This, I thinis. is the mean-
ing of the casus or accident, in the Roman law, and of chance, or
accident. In our ovm law. 'By the common law,' says Lord Mansfield, 'a
carrier is an insurer. It Is laid down that he is liable for every accident,
except by the act of God, or the Iting's enemies.' Here, the term accident
Ch. 1] OONKECTION AS CAUSE. 65
^An accident is an event or occurrence which happens unexpectedly
from the uncontrollable operation of nature alone, and without
human agency, as when a house is stricken and burned by lightning,
or blown down by tempest, or an event resulting undesignedly and
unexpectedly from human agency alone, or from the joint opera-
tion of both; and a classification which will embrace all the cases
of any authority may easily be made. In the first class are all
those which are inevitable, or absolutely unavoidable, because
effected or infiuenced by the uncontrollable operation of nature.***
Includes tbe acts of men, namely, of the king's enemlefl. And In the Digest
It Is expressly said, 'Fortnltis caslbus solct etlam adnimierari aggressura
latronam.* In the language of the English law, an event which happens
without the Intervention of man is styled 'the act of God.' The language
of the Roman law is nearly the same. Mischiefs arising from such events
are styled damna fatalia, or detrimenta fatalia. They are ascribed to
vis divina, or to a certain personage styled Fatum. Or the casus or acci-
dent talses a specific name, and is called fatalitias. The language of either
system is absurd. For the act of man Is as much the act of God as any
event which arises without tlie intervention of man. And, if we choose to
suppose a certain fate or destiny, we must suppose that she ( v it determines
the sets of men, as well as the events which are not acts of men." 1 Aust.
Jur. lect. 25, p. XiG. But the legal acceptation of "accident" as meaning an
event happening unexpectedly and without fault, or where the real cause
cannot be traced (see Wabash, 8t. L. & P. Uy. Ck>. v. Locke. 112 Ind. 401.
14 N. E. 391), is coming into general use. Accident is also used In the
colloquial sense of mere occurrence of unexpected damage, as by machinpry.
Richards v. Rough, 53 Mich. 212, 18 N. W. 785.
««2 An act of God is such an inevitable accident as occurs without any Inter-
vention of man. 1 Am. & Eng. Enc. Law, 174; McGrew v. Stone, 53 Pa. St
436. '*The law fumifihes every person a remedy by civil action to recover
damages for injuries resulting to him from the negligence of another, even
though such injury was accidental. To constitute a valid defense in such
cases, the injury must be shown to have resulted from one controUlng superior
agency, and without defendant's fault." Knott v. Wagner, 16 Lea (Tenn.)
481; Chidester v. Ck)nsolidated Ditch CJo., 59 Cal. 197; McGrew v. Stone, 53
Pa. St. 436; McCauley v. Logan, 152 Pa. St 202, 25 Atl. 499; Express Go. v.
Smith, 83 Ohio St. 511; Turner v. Haar, 114 Mo. 335, 21 S. W. 737; Slordet
V. Hall, 4 Bing. 607; Crosby v. Fitch, 12 Comk 410; Converse v. Brainerd,
27 Conn. 607; Sherman v. Wells, 28 Barb. 403; Michaels v. New York C. R.
Ca, 30 N. Y. 564; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 U. S.
(Lawy. Ed.) 909; Cook v. Gourdln, 2 Nott & McC. 19; Firth v. Bowling Iron
Oo., 3 C P. Div. 254; Woodward v. Abom, 35 Me. 271; Salisbury v. Herchen-
l^AW OF TORTS — 5
6G GENERAL NATURE OV TORI'S. [Gh . I
In the second cIush are those wbicli result from human agency
alone, but were unavoidable, under the circumstance^*'* And in the
third class are those which were avoidable, because the act was not
called for by any duty or necessity, and the injury resulted from
the want of that extraordinary care which the law reasonably re-
quires of one doing such a lawful act, or because the accident was
the result of actual negligence or folly, and might, with reasonable
care adapt<Hl to the exigency, have been avoided.*** Thus, to illus-
trate, if A. burn his own house, and thereby the house of B is
burned, he is liable to B. for the injury; but if the house of A. is
burned by lightning, and thereby the house of B. is burned, A. is
not liable; the accident belongs to the first class, and was strictly
inevitable, or absolutely unavoidable.'*^ If A. should kindle a fire
i-oder, supra; Best wick v. Baltimore & O. K. Co., 45 N. Y. 712; HoUaday v.
KtMinard, 12 WaU. 2r»4. 20 V. S. (I^wy. Ed.) 390; Sheldon v. Sherman, 42 N.
Y. 484; Bead v. Spauldiiig, 30 N. Y. 630; Chicago B. Co. v. Shea, 06 111. 4*1.
Obstruction of ruuning stream, occasioned by wasliiug dowu bank, is not a
nuiFauce, unless the obstruction is attributable to acts or agency of man.
Mohr V. Gault, 78 Am. Dec. 687. And see City of Allegheny v. Zimmerman.
40 Am. Bep. (>49. Wliere refuse was deposited by a coal-mining company In
a Htrcam wliere every flood, as well as the ordinary current, would i^rry It
grn dually down stream, it was held that the fact that an extraordinary flow
quickened its descent, and gave the final impulse that lodged it on another's
land, did not take away the company's liability. Elder y. Lykens Val. dmi
Co., 157 Pa. St. 490, 27 Atl. 545; .Jackson v. Wisconsin Tel. Co., 88 Wis. 24:5,
(50 N. W. 4:iO (as to lightning). Post, p, KMH, "Common Carriers," "Excep-
tions from IJjibility.'* **Th<» classical signification of Vis major' is wider, for
somo pun>o8es/' Pol. Torts, 400, citing Nugent v. Smith. 1 C. P. Div. 423-^29,
per Cockburn. J.
2 63 The contrary doctrine, laid down, or supposed to be laid down, in Weaver
y. Ward, would seem to be at variance with the prevailing modern thought.
In Holmes v. Mather, L. B. 10 Exch. 201, 44 L. J. Exch. 170. a horse, which
was ordinarily quiet, was frightened by lightning, and ran away, injuring
plaintiff. It was held that the lightning was the proximate cause of the dam-
age, and that plaintiff could not recover of the driver. See Nitro-Glycerine
Case, 15 Wall. 524; Brown v. Kendall, 6 Cush. 292; Gibbons v. Pepper, i
Ld. Baym. liS; Hall v. Feamley, 3 Q. B. 919; Wakenian v. Boblnson, 1 Bing.
213; Wabash. St. L. & P. By. Co. v. Locke, 112 Ind. 404. 14 N. E, 391; Boyn-
ton V. Bws, 9 Pick. 528.
864 This is the basis of the law of negligence. Post, c. 12.
266 But see Jackson v, Wisconsin Tel. Co., 88 Wis. 243. m N. W. 43ij^
Ch. 1] (X)XNKCTlON AS CAUSE. 67
in a long- unused flue in his own house, which has become cracked
without his knowledge, and the fire should communicate through
the crack, and bum his house, and thereby the house of B., the
accident would be unavoidable, under the circumstances, and be-
long to the second class. But if A., when he kindled the fire, had
reason to suspect that the flue was cracked, and did not examine it,
and so was guilty of negligence, or knew that it was cracked and
mig:ht endanger his house and that of B., and so was guilty of folly,
he would be liable, although the act of kindling the fire was a law-
ful one, and he did not expect or intend that the fire should com-
municate." ^*"
There would seem to be another class of cases, which arise where
the injury is the result of so many fortuitous circumstances, no
one of which can be fairly said to have been its proximate cause,
that the damage may accordingly be referred to accident, and can-
not be the basis of a judicial action.^*'
26. It is no defense, in an action for an injtiry resulting
from neglisrence, that the negligence or willful wrong of
third persons, or an inevitable accident, or an inanimate
thing, contributed to cause the injury, if the negligence ol
the defendant was an efficient cause, without which the
injury would not have occurred.*"
•'Ne;;lipeuc€." post, p. 840, notp 323: "Certainly a stroke of lightning is an 'act
of God'; but that is not the question here presented, but rather anotlicr element—
i. e. the negligence of man—is added to the question, which materially alters its
scope. If I, owning a high mast or building, which I know is so situated a»
to be very likely to be stnick by lightning, construct an attractive path for
the lightning to my neighbor's roof, so that his house is destroyed by a bolt
which strikes my mast or building, shall I escape liability for my negligent
or wrongful act by pleading that the lightning was the act of God? Certainly
not. I invited the stroke of one of the most destructive powers of nature, and
negligently turned its course to my neighbor's property. The principle is tho
same as that involved in the case of Borchardt v. Boom Co., 54 Wis. 107, 11
N. W. 440. The lightning stroRe is In no greater degree the act of God than
the usual freshets occurring in a river."
2»e Morris v. Piatt, 32 Conn. 75.
2«T Chicago, St. P., M. & (). Ky. Co. v. Elliott, 5 C. C. A. 347, 55 Fed. 949.
2tt8City of Joliet v. Shufeidt, 144 111. 403. 32 N. B. 9»»; Salisbury v.
68 GKN'KUAL NATURE OF TOICIS. [Ch. 1
Sole Ol?«6.
A juridical cause need not be a sole ranse,*** nor the nearest in
time or space.^'® A wrongdoer who contributes to a damage cannot
escape liabilit\% for example, for a nuisance, because liis proportion-
al conti'ibution to the result cannot be accurately measured.*^*
A town OP city may be liable for damages caused by a defect in a
highway, although the innocent act of a third person is a concur-
Uercbenroder, IOC Mass. 458: Pastene v. Adams, 49 Cal. 87. Post pp. 0.j9. S>T1,
"Contributory NegUgence/' "Concurrent Cause." As applied to negUgence.
the rule is, wliere several causes combine to produce the injury complained
of, defendant is not released from liability because he is not responsible for
all of such causes, provided plaintiff is not guilty of contributory negligence.
(Jhicago, R. I. & P. Ry. Co. v. Sutton, 11 O. C. A. 201, (xi Fed, 394; Board of
I'om'rs V. Mutchler, 137 Ind. Sup. 140, 36 N. E. 534; Stanley v. Union Dejwt
H. Co., 114 Mo. 606, 21 S. W. 832; Herre v. City of Lelmnon, 149 Pa. St 222.
24 Atl. 207; Livingston v. Cox. 6 Pn? St. 360; Worms 'orf v. Detr it City ity.
Co., 75 Mich. 472, 42 N. W. 1000; AA'ebster v. Hudson River R. Co.^ 3S N. Y.
UtJO; Eaton v. Railway Co., 11 Allen (Mass.) r.(K).
280 "Negligence may be the proximate cause of an injury of whlcli It is not
tlie sole or immediate cause." (Here defendant's obstruction on the high-
way concurred with its movement of train to produce death.) Lake Shore,
& M. S. Ry. Co. V. Mcintosh (Ind. Supp.) 38 N. B. 470. Where two fircR, for
one of which defendant was responsible, mingled, defendant was liable for
damage thereafter ensuing. McClelloji y. St. Paul, M. & M. Ry. Co. (Minn.>
59 N. W. 978; Louisville, N. A. & C. R. Co. v. Davis, 7 Ind. App. 222. 3;^
N. B. 451; post, p. 1050. "Concurring Negligence." And see note 262. It has,
liowever, been held that in actions of tort, where the damage claimed may
have resulted from two or more causes, tor the consequences of one only of
which defendant is liable, there can be no recovery unless the evidence shows
that the cause for the conseauences of which tlie defendant must answer
most largely contributed to the damage claimed. Pierce v. Michel, I Mo,
App. 74.
270 Sanborn, J., in Missouri Pac. Ry. Co. v. Moseley, 6 C. C. A. 641. 57
Fed. 921-925; Pullman Palace (^ar Co. v. Laack, 143 HI. 242-262. 32 N. E.
285; Union Pac. Ry. Co. v. Callaghan, 6 C. C. A. 205, 56 Fed. 988; Blsh.
Noncont Law, 518, 519-684; Thomp. Neg. 981, § 10; Booth v. Boston & A.
R. Co.. 73 N. Y. 38; Cayzer v. Taylor, 10 Gray (Mass.) 274; Village of Car-
tervllle v. Cook, 129 111. 152, 22 N. E. 14; M'athewa v. Ix)ndon, etc.. Co., 60
Law T. (N. S.) 47.
271 learned v. Castle. 78 Cal. 454, 18 Pac. 872, and 21 Pac. 11 (the nuisance
consisted of overflowing water).
Oh. 1] CONNECTION AS CAUSK. G9
ring cause of the harm.'^^ Bat there is no unanimity of con-
clnsions or reasoning in this class of cases.^^' In an action to re-
cover for injuries to which the fault of another person contributed,
the defendant's liability is not affected by the fact that the fault
of such person was not negligence, but voluntary wrong, which
they should have apprehended and guarded against'^* And, in
2-2 Hayes v. Hyde Park (1891) 153 Mass. 514, 27 N. B. 622; Houfe t.
Town, 29 Wis. 296; SchUlinger ▼. Town of Verona. 85 Wis. 589, 55 N. W.
1(H0. So if a horse shy and run into a train obstructing a crossing, Chicago
& N. W. Ry. Co. T. Prescott, 8 C. C. A. 109, 59 Fed. 237; and it is immaterial if
the bit of the bridle broke. Cairncross v. Village of Pewaukee. 86 Wis. 181,
56 N. W. 648. Where an injury is the combined result Of a horse shying
from a pile of rock beside the road and the fftilure of the county to provide a
guard raU along the approach to a bridge, the county is liable therefor.
Rohrbough T. Barbour County Court, 39 W. Va. 565. 20 S. B. 565. Lynch y.
Kailroad Co.. 84 Wis. 348, 54 N. W. 610. And see Morgan v. Freemont Go.
<Iowa) 61 N. W. 231. Defect in bridge caused damage to plaintiff in res-
cuing a horse; plaintiff recovered. La Duke v. Township of Exetnr, 97
Mich. 450, 56 N. W. 851. And see Lewis y. Railway Co., 54 Mich. 55, 19 N. W.
744; Page y. Bucksport, 64 Me. 51; Stickney v. Town, 30 Vt. 738; Ilenibllng
y. City of Grand Rapids, 90 Mich. 292, 58 N. W. 310 (where plaintiff, walking
on a defective sidewalk, stepped in a hole made by the jerking away of a
board by a horse, it was held that the proximate cause of the damage plain-
tiff suffered was not the defect in the sidewalk, but the horse. Therefore*,
a town may be liable for a defect in a highway, although the innocent act
of third person is a concurring cause of the damage complained of). And
see Wilder v. Stanley, 65 Vt 145. 26 Atl. 189.
aT3 Bowes v. City, 155 Mass. 344, 29 N. E. 633; Stanton v. Louisville, etc.,
B. Co.. 91 Ala. 382, 8 South. 71KS; Scliaeffer v. Township. 150 Pa. St. 145. 24
Ati. 629; Worrilow v. Upper Chichester Tp., 149 Pa. St. 40, 24 Atl. 85;
Kieffer v. Borough, 151 Pa. St. 304. 24 Atl. 1060; 31 Wkly. Notes Cas. 15;
Brown v. Laurens Co., 38 S. C. 282, 17 S. E. 21; Mason v. Spai-tanburg Co.,
40 S. C. 390, 19 S. E. 15; Bleil r. Street Railway Co., 98 Mich. 228. 57 N.
W. 117. Defendant maintained a bridge, with side rails, across a railrrad
track. Plaintiff was driving across the bridge, when the horse fell against
the rail, which broke, and precipitated horse, sleigh, and plaintiff to the track
below. The horse was dead— either from heart disease or from choking by
the harness— when he fell. Hold that, even if there was a defect in the
bridge, it was not the proximate cause of plaintiff's injury, nnd defendant
is not liable therefor. McClain v. Incorporated Town of Qjirdeu Grove, 48
K W. 1031.
274 Lane v. Atlantic Works, 111 Mass. 136.
70 GENERAL NATURE OF TORTS. [Ch. 1
general, when the damage complained of is the result of simul-
taneous wrong both of the defendant and of a third person, and
could not have been produced in the absence of either, the defend-
ant's wrong is the proximate cause of the injury.*^" The fact that
a natural cause contributed to produce the damages complained
of, which would not have happened without defendant's wrong,
does not enable defendant to make out the defense of the act of
God.2^«
If a defendant charged with negligent damage has been gnill^
of such negligence as would have produced the damage complained
of, he cannot excuse himself on the ground of inevitable accident
by showing that the damage would have occurred through an un-
avoidable cause although he had done his duty. But, if he can
show that a substantial and fairly ascertainable portion of the dam-
age which actually happened is to be attributed solely to that un-
avoidable cause, the liability for damage will be apportioned.*"
Intervening Caiiae,
If a person's wrong is a proximate cause of injury, he may be
liable although there may have been an intervening efficient cause.
27 0 McMabon v. Davidson. 12 Minn. 357 (Gil. 232); Griggs y. Fleckenstein,
14 Minn. 81 (Gil. 62); .Johnson v. Northwestern Tel. Exch. Co., 51 Minn, 225,
51 N. W. 225.
aT6 2 Thomp. Neg. 1(K)7; Whart. Neg. § 86; Roninoy Marsh v. Trinity House
CJorp., L. R. 5 Exch. 20i; EUet v. St Louis, etc., Co., 70 Mo. 518; Piedmont
& C. Ry. Co. V. McKenzie, 75 Md. 458, 24 Atl. 157; Polock v. Pioche. 35
Cal. 410, and cases cited; Chidester v. Consolidated Ditch Co., 69 Cal. 197;
Rodgers v. Central Pac. R. Co., 67 Cal. 007, 8 Pac. 377; Southwestern Tel.
Co. V. Robinson. 50 Fed. 810; Dickinson v. Boyle, 17 Pick. (Mass.) 78; Salis-
bury V. Herchenroder, 106 Mass. 458; George v. Fisk, 32 N. H. 32; Mc-
Arthur v. Sears, 21 Wend. 189; Pittsburgh v. Grier, 22 Pa. St. 54; Scott v.
Hunter, 46 Pa. St. 192; Llvezey v. Philadelphia, 64 Pa. St. 106; Baltimore &
O. R. Co. V. Sulphur Springs Dist, 96 Pa. St. 65; Couts v. Neer, 70 Tex. 468,
9 S. W. 40; Gleeson v. Virginia Midland R. Co., 140 U. S. 435, 11 Sup. Ot
S59; 1 Am. & Eng. Enc. Law, 174.
27 7 Fry, J., in Nitro-Phosphate, etc., Co. v. Loudon, etc., Co., 9 Ch. DIt. 503,
39 Law T. (N. S.) 433. 27 Wkly. Rep. 267. This was an action to recover
damages for an injury caused to the plaiiitiflf' s property by an overflow of
water from the defendant's dock, which, as the plaintiCT alleged, resulted
from the defendant's negligence in not having maintained the retaining wall
of the dock at a sufficient height
Ch. 1] €X>NIiPGTION AS CADBE. 71
Judge Coolej has stated the rale with great conseryatism. If the
original act was wrongful, and would naturally, according to the
ordinary coarse of events, prove injurious to some others, and
actoally result, and does actually result, in injury, through the in-
tervention of other causes, not wrongful, the injury shall be referred
to the wrongful cause, passing through those which were inno-
cent*^* In 8cott V. Shepherd,'^* defendant had thrown a lighted
sqnib into the market houw* on a fair day. The squib was cast
about by the persons on whcmi it was thrown until it struck the
plaintiff in the eye. The intermediate persons who rid theniselves
of the squib were held to have acted in proper self-defense. "All
the facts of throwing the squib must be considered as one single
act, viz. the act of defendant." The intermediate persons acted in-
voluntarily *'** or automatically.'*^ In this case, accordingly, the
intervening cause may have been innocent. In Milwaukee & St. P.
R. Co. V. Kellogg,*** the defendant was held linblo for negligence in
»7« Cooley, Torts, 69.
27« Wllies, 303: Smith, Lead. Cas. Tdl; 2 Bl. Comni. 89!1
»«o Ball. Lead. Cas. Tort 258.
«»» See opinion of De Grey, C. J., Pig. Torts, 165. Untlor this general view
may be placed the classiea) cases. Vanderburgh v. Tninx, 4 Deuio, 4(>4 (boy
and faucet); Guile v. Swan, 10 Johns. 381 (balloon). McDonald v. Snelling,
14 Allen (Mass.) 206. Where defendant, negligently driving, caused another
team to run away, and by the latter plaintiff was damaged, It was held that
plaintiff could recover. So, where a wagon, coming down an avenue. In at-
tempting to get off the track ont of the way of a rapidly approaching car,
forced another wagon onto the track, so that It was injured by a collision, the
driving of the wagon off the track was not the proximate cause of the Injury.
Thatcher v. Central Traction Co. (Pa. Sup.) :iO Atl. 1048. But, where horses
on a ferryboat are frightened by the whistle of a steamer met by the ferry,
and a horse jumps against and breaks a defective VQil placed across the en-
trance to the ferrj', and is drowned, the defective rail, and not the blowing of
the whistle, is the proximate cause of the loss of the horse. Stur^jis v. Kountz
Id. 076.
2«2 04 U. S. 4<m; Ix)uisvllle, X. A. & C. K. Co. v. Mtsche, 120 Ind. 220, 26
N. E. 51. And see Tyler v. Ricamore, 87 Va. 46(5, 12 S. E. 700: Smith v. Rail-
way Co.. L. R. 6 C. P. 14; Lords Bailiffs v. Corporation of Trinity House, L.
R. 5 Exch. 204; L. R. 7 Exch. 247 (where a high wind drove a ship grounded
by negligence against a wall, which it damaged). Change in the direction of
the wind is no defense. Northern Pac. R. Co. v. Lewis, 7 U. S. App. 254, 2
C. C. A. 446, 51 Fed. 658. . The separation of the fire complained of as wrong-
72 QEMERAL NATURE OF« TORTB. [Ch. 1
causing a flre, which by a high wind was carried to, and burned, the
plaintiff's premises. Here the intervening agency was a natural!
one, and innocent. ^^ So, the fact that a woman is pregnant, and
by roason thereof is more liable to suffer from accident, is only a
link in the chain of her injury, and will not exempt, for example, a
street-car company from liability for injury to her.***
But a person may be liable although the intervening agency was
a conscious, responsible person. Indeed, that person may be an
fully caused by defendant and the flre which damaged plaintiff by consider-
able time, great space of territory, or many intervening objects belonging to
defendant or other owners does not prevent the connection of the original fire
as the proximate cause of plaintiff's damage. Cincinnati, etc., R. Ck>. v. Bar-
ker, 94 Ky. 71, 21 S. W. 347; Simmonda v. Railroad Co., 52 Conn. 264; Martin
V. Railroad Co., 62 Conn. 331, 23 Atl. 239; Frace v. Railroad Co., 68 Hun, 3^j,
22 N. Y. Supp. 958; East Tennessee, V. & Q. R. Co. v. Hesters, 90 Qa, 11, 15
S. B. 828; East Tennessee, V. & G. R. Co. v. Hall, 90 Ga, 17, 16 S. E. 91;
Chicago & E. R. Co v. Ludlngton (Ind. App.) 38 N. E. 342; Wiley v. Railway
Co., 44 N. J. Law, 247; Fent v. Railway Co., 69 111. 349. But see Ryan v.
New Yorli Co., 35 N. Y. 210; Pennsylvania R. Co. v. Kerr, 62 Pa. St. 353; Mar-
vin V. Railroad Co.,* 79 Wis. 140, 47 N. W. 1123. Generally, as to liability not-
withstanding intervention of natural contributing causes, see City of Albany
V. Watervllet, etc.. Co., 76 Hun. 136, 27 N. Y. Supp. 848; Kean v. Baltimore
& O. R. Co., 61 Md. 154; Peepers v. Railway Co., 67 Mo. 715; Terre Haute,
etc.. Railroad v. Buck, 96 Ind. 346; Consolidated Ice Mach. Co. v. Keifer, 134
111. 481, 25 N. E. 799; Miller v. Railroad Co., 90 Mo. 389, 2 S. W. 439; Bevan,
Neg. 80, 81.
2 83 Compare Kuhn v. .Tewett, 32 N. J Bq. 647, with Hoag v. Railroad Co.,
85 Pa. St. 293; and see Delaware, L, & W. R, Co. v. Salmon. 39 N. J. Eq. 299.
284 Purcell V. St. Paul Uy. Co., 48 Minn. 134, 50 N. W.1034; Mitchell v. Rrch-
ester Ry. Co., 30 Abb. N. C. 302, note, 371, 25 N. Y. Supp. 744; Barber v.
Re^se, 60 Miss. 906; Oliver v. Town, 36 Wis. 592; Brown v. Railway Co.. 54
Wis. 342, 11 N. W. 356, ^11. And generally, as to physical condition as a con-
tinuing cause, see Terre Haute & I. R. Co. v. Buck, 96 Ind. 346; Ohio & M, R.
Co. V. Hecht, 115 Ind. 443, 17 N. E. 297, and cases collected at page 444, 115
Ind., and page 297, 17 N. E. So, if plaintiffs physical condition aggravate
damage from iclcls. Vosburg v. Putney, 86 Wis. 278. 56 N. W. 480. Exposure^
of person during pregnancy contributory negligence. Salladay v. Town, 55
Me, 696. Cf. Edwards v. Village of Three Rivers (Mich.) 60 N. W. 454; Bovee
V. Danville, 53 Vt. 183. Injury In ignorance of such condition by expelling
from car. Mann Boudoir Car Co. v. Dupre, 4 C. 0. A. 540, 54 Fed. 646. But
plaintiff's previous physical condition, and not injuries, may cause death.
Morrow v. Railway Co. (Ala.) 13 South. 775. And, further, see Briggs v. Rail-
CI). 1] C0NN£CT10N AS CAUSE. 73
innocent and successfnl plaintiff.*'^ Thus, where a stranded vessel
is voluntarily scuttled to save her from a storm which began sev-
eral hours after she stranded, the proximate cause of loss arising
from such scuttling is the storm, and not the scuttling. The own-
er may, accordingly, recover insurance on the vessel.*** The inter-
vening agency may be an innocent third person.^*' It may be a
wrongdoing third person.*** The intervening wrongdoer may be
way Co., 52 Minn. 3C. 53 N. W. 1019; Louisville & N. R. Co. v. Northlngton,
91 Te&n. 56, 17 S. W. 880. Where a person, at the time of receiving a per-
sonal injury, has microbes in his system, which aggravate the injury, that
fiict does not relieve from responsibility the person whuse uoi;ligence caused
the Injnry, where It does not appear that the microbes would have done harm
by themselves. Crane Elevator Co. v. Lippert, 11 C. C. A. 521, (>3 Fed. U42. The
wrongful act of the plalntiflT in error subjected the injured party to other and
dependent causes, which were set in motion by the origins ] hurt For this it
is answerable. Ghma v. Railroad Co., 67 N. Y. 596; Drake v. Klely, 93 Pa.
St. 492; Brown v. Railway Co., 54 Wis. 342, 11 N. W. 356, 911; Terre Haute
A I. Ry. Co. V. Buck, 96 Ind. 346; Bishop v. Railway Co.. 48 Minn. 26, 50 N.
W. 927; Jackson v. Railroad Co., 25 Am. & Eng. R. Gas. 327. LouisvlUe &
N. R. Co. V. Northlngton, 91 Tenn. 56, 17 S. W. 880, distinguished.
28* If a person set a back fire to protect his property against a prairie fire
which another negligently set and negligently permitted to escape, he can re-
cover for such property thereby destroyed as would have been destroyed by
the original fire had he remained idle. McKenna v. Bae^sler, 86 Iowa, 197,
53 N. W. 103; Pennsylvania Co. v. Congdon, 134 Ind. 226, 33 N. B. 795. And
see Thoenlln v. Campbell, 45 Mass. 769. So, if a carrier's negligent driving of
a coach cause a passenger to Jump out to escape reasonably apprehended dan-
ger. Jones V. Boyce, 1 Starkie, 493; post, 966. "Contributory Negligence."
'-S6 Woolley v. Scovell. 3 Man. A R. 105; Binford v. Johnston, 82 Ind. 426;
Northwest Transp. Co. v. Boston Marine Ins. Co., 41 Fed. 793.
287 In an action against a gas company for injuries caused plaiutifTs house
by an explosion of gas in hif cellar, resulting from a defective main, the fact
that when defendant's servant went on plaintiff's premises to look for a lealx
a third person not defendant's agent accompanied him into the cellar, and
struck the match that caused the explosion, does not relieve defendant from
liability, as the presence of the gas through defendant's negligence contribute<l
to cause the explosion. Koelsch v. Philadelphia, etc., Co., 152 Pa. St. 355, ::5
AU. 522. Cf. Goodlander Mill Co. v. Standard OU Co., 11 C. C. A. 233, 63 Fed.
400.
2««A physician who makes a mistake in a prescription may be liable for
damages consequent, although the druggist who filled it was also negligent.
Murdock v. Walker, 43 111. App. 590. And see Brown v. Marshall, 47 Mich.
576, 11 N. W. 392; post, p. 975. "Ckmtributory Negligence."
74 GENERAL NATURE OF TORTB. [Ch. I
merely negligent, or may act willfully, and maliciously. Thus, if
the owner leaves a horse and cart standing in the street, and a third
person strike the animal, causing him to run away or otherwise do
damage, the owner is liable. 'If," said Lord Denman, in Lynch v.
Nurdin,^** "I am guilty of negligence in leaving anything so danger-
ous in a place where I know it to be extremely probable that some
other person will unjustifiably set it in motion, to the injury of a
third party, and that injury should be so brought about, the sufferer
may have redress by action against both or either of the two, but
nii()uestionably against the first."
2^. Conduct is a legal cause when, in the usual course
of nature under the circumstances of the case, the damage
complained of results as a natural and probable conse-
quence.
A number of theories of causation have been favorably regarded
by jurists. The one which has met with most general acceptance
is that of natural and probable consequences.^®'* A legal wrong,
constituting an invasion of another's rights, will produce damages
as the natural, necessary, and proximate result But where an act
or omission is not such a distinct legal wrong, and can only become
a wrong to individuals through injurious consequences resulting
2 8» 1 Q. B. Div. 36. And see Illege v. Goodwin, 5 Car. & P. 190; Burrows
V. March Gas & Coke Co., L. R. 5 Exch. 67, L. R. 7 Exch. 96; Clark v. Cham-
bers, 3 Q. B. Div. 327, 47 Law .T. Q. B. 427; CoUins v. Middle Level Com're, L-
U. 4 C. P. 279; Wilder v. Stanley, 20 Atl. 189; I^ue v. Atlantic Works. Ill
Mass. 130. In an action against a township for injuries caused by a skittish
horse plunging over an embankment left unpmtocted by a guard rail, where
plaintiff knew of the danger, and there was another road which he might have
traveled, the negligence of the to^-nshlp in leaving the embankment un-
guarded, and of plaintiff in not traveling the other road, are questions for the
jury. Mechosney v. Unity Tp. (Pa. Sup.) 30 AU. 263.
2do An examination of any digest on proximate and remote damages will
convince as to this point "Natural and necessary consequences." Ryan v.
New York Cent. Ry. Co., 35 N. Y. 210, reviewing Scott v. Shepherd, 2 W. Bl.
893; Vandenburgh v. Truax, 4 Denio (N. Y.) 4(U; Guille v. Swan. 19 Johns.
(N. Y.) 381.
Cb. 1] CONN£UTJ(iN AS CAUdK. 7q
therefrom, such conseqnenceB must not only be shown, but both
pleadings and evidence must show that the acts or omissions were
the proximate and sufficient cause of the consequences.'*^ This is
an application of the familiar principle that a man is presumed to
intend the natural and probable consequences of his own acts, and
is held responsible therefor. Several standards have been suggest-
ed for determining what are natural and probable consequences.
This matter will be considered subsequently under the subject of
proximate and remote damages. The results of that consideration
may be anticipated, so far as to point out that the courts have pur-
8ned no absolutely consistent line between two extreme views of
the proper way for determining natural and probable consequences.
At the one extreme they are said to be such as would ordinarily
occur in the course and constitution of nature, whether it could or
should have been foreseen by the wrongdoer at the time of the wrong
or not. At the other extreme the test of what the wrongdoer can
reasonably be held to have anticipated is regarded as the test. - The
tendency is to enlarge, rather than to limit, the range of natural
and probable conwquences.*** Tn following the natural and
probable effects of a wrongful action, the courts recognize that at
some stage a cause becomes '^remote," and the wrongful conduct
ceases to be actionable. The force is exhausted.'*' But, as will
be seen in the subsequ.ent discussion of damages proximate or re-
mote, th<,»re is great uncertainty as to where this point is reached.
It is to be noted that the ordinary rules as to natural and probable
consequences do not apply to cases when the defendant intended to
produce the result complained of, when his conduct was illegal, and
when the wrong complained of arises from fraud or malice.*
a»i Ck)oley, Toils, GO.
"«Pol. Torts, 31.
«•« Whart Neg.; Bish. Nou<*<!it. Tjiw. ?§ 44. 45. A vendor of guniiowder to
an inexperienced boy may be beld liable for damage caused by an explosion
tmming the boy. Carter v. Towne, 08 Mass. .567. But If, after the sale was
made, the boy carried It home, and gave it to the custody of his parents, and
part of It had been Hred off, with their permission, before the explosion oc-
curred by which he was injured, then the wrongful act of defendant in sell-
ing the guniK)wder would not be the direct, proximate, or effiplont cause of
the Injury. Carter v. Towne, 103 Mass. 507.
• Post, c. .*>.
76 OKXBKAL NATURK OF TUBTB. [Ch. 1
ImA fluman Wrongdoer.
Another theory suggested is that: ''Whatever determines an al-
teraative, which alternative so determined issues in the injary^ is
a caase, and, as no inanimate thing can so determine an alternative,
it follows that the caase of the injury must be an animate conscious
being.''^*^ This, so far as it distinguishes human conduct from ac-
cident, is sound sense and sound law. But until it goes one step
further it does not determine the question at issue. The further
step is taken when it is urged that the legal cause is the last human
wrongdoer to whose conduct the injury complained of can be tra-
ced.^*' But this proposition, unless largely modified, is not true.***
To determine who is the last personal tort feasor, the reasoning
must be in a circle (L e. he is the legal cause), or the personal actor
last in time or space must be a proper defendant (which is not true),
or the test must be so modified and explained as almost to lose its
identity.
Conspiciums AntecedenL
The ideas of John Stuart Mill as to the relation of cause and
effect, and his terminology of antecedent and subsequent, have been
judicially recognized. 'The cause of an event is the sum total of
the contingencies of every description, which, being realized, the
event invariably follows. It is rare, if ever, that the invariable se-
quence of events subsists between one antecedent and one conse-
quent. Ordinarily, that condition is usually termed the cause whose
share in the matter is the most conspicuous and is the most imme-
diately preceding and proximate in the event" '•^ Indeed, it has
s»« Innes, Torts, c. 4, on tracing tortious effects back to the conduct of tlio
person responsible.
a»e As In Alexander v. Town of New Castle, 115 Ind. 51. 17 N. E. 200.
And see Vicars v. Wilcocks, 8 East, 1.
29e One modification of the test would be in cases where the conduct of 1h^^
last human wrongdoer is the natural result of the original wrong, as in
Bcott v. Shepherd, supra; Vandenburgh y. Truax, supra. But the test fur-
nishes no definite criterion for detei-miuiug when the wrongdoer becomes a
remote cause. Nor is it elastic enough to cover cases where the liability is
totally disproportionate to the test, as in case of the Chicago fire.
2»7 Appleton. C. J., in Moulton v. Sanford, 51 Me. 127, 131. "Etticient pre-
domhiating.*' Dole v. Insurance Co., 2 Cliff. 431, Fed. Cas. No. 3,96G; Balti-
more & P. R. Co. V. Reaney, 42 Md. 117. *:Proxlmate or efficient." North-
Ch. 1] (-ONNKCTION AS CAU8£. 77
been the buBis of an important line of decisions.'*' The difficulty
with this case is not so much that such refinements are too minute
for rules of social conduct,'"* nor that the philosophy involved is
materialistic.'** It lies rather in determining what is the conspicu-
ous preceding antecedent. It would appear probable, however, that
in a great many cases — perhaps in the majority of cases — ^the jury
to whom the questions of connection as cause are finally referred will
determine such questions by the use of this standard.
Caii^ a Question of Fad,
In determining the juridical cause, courts incline to decide each
case on its ow^n facts, so far as possible. In Insurance Co. v. Tweed,'*^
it was said: ''We have had cited to us a general review of the
doctrine of proximate and remote causes as it has arisen and has
been decided in the courts in a great variety of cases. It would be
un{>rofitable labor to enter into an examination of these cases. If we
could deduce from them the best possible expression of the rule, it
would remain after all to dei^ide each case largely upon the special
facts belonging to it, and often upon the very nicest discriminations.^'
However, there are distinct groups of cases with respect to which
courts are governed by the principle stare decisis.**' And finally
it is generally admitted that what is a proximate cause of an injury
is a question of fact, ordinarily to be decided by the jury.'*' But
western Transp. Co. v. Boston Marine Ins. CJo., 41 Fed. 802. For similar
criticism on "proximate cause,*' post, 975, "CJontributory Negligence."
»«8 Sutton V. Wp.uwatosa. 29 Wis. 21. But see JeffersonvIUe R. Co. v.
Riley, 39 Ind. 568; Gates v. RaUroad Co., 39 Iowa, 45.
2»9 Strong, J., In Milwaukee & C. R. Co. v. Kellogg, Burdick, I-ead. Cas. 33.
"The lawyer cannot afford 'to adventure himself with the philological and
metaphysical controversies that beset the idea of cause/* Pol. Torts, 33.
300 Whart. Neg.
301 7 Wall. 49.
>oa Bosch Y. Railroad Co.. Burdick, Lead. Cas. 38.
»oa Pennsylvania R. Co. v. Hope, 80 Pa. St. 373; Pike v. Grand-Trunk Ry.
Q)., 39 Fed. 258; Milwaukee & St. P. Ry. Co. v. Kollopg. 94 U. S. 401). In
determining the cause of an accident at a railroad crossing the jury may use
their general ki^owledge as to the habits of horses and their liability to be-
come frightened by moving trahis. State v. Maine Cent. R. Co.. 80 Me. 300,
29 Atl. 108G; Mechesney v. Unity Tp. Co.. 30 Atl. 2(53; Pent v. Railway Co., 51>
in. 349; Newcomb v. Boston Protective Department, 140 Mass. 004. 10 N. K.
78 UENEBAL NATUUE OIT TORTS. £Cll. 1
the courts will sometimes determine the matt^ as a question of
law,'®^ especially where there is no proof of connection as cause,
and all the jury is given to act upon is mere conjecture.'**
DAMAGE ABTD DUTY.
27. Every violation of l^al duty givee rise
(a) To a cause of action in tort, ordinarily only
upon, but sometimes without, proof of actual
damage:
(b) To an appropriate legal remedy.
555. collecting cases; Selleck y. Lake Shore & M. S. Ky. Co., 93 Mich. 375.
53 N. W. 550; VaDghan v. Taffvale R. Co,, a Hurl. A N. 743; Smith v.
London, etc., Co.. L. R. 5 C. P. 98; Collins v. Middle Level Com'rs, L. R. 4
C. P. 279; Romney Marsh v. Trinity House Corp.. L. R. 5 Exch. 204, affirm-
ing L. R. 7 Exch. 247; Sneesby y. Lancashire, etc., Co., L. R. 9 Q. B. 263;
Byrne y. Wilson. 15 Ir. C. L. 332; The George &, Ricliard, L. R. 3 Adm. &
Ecc. 406; Jones y. Boyce, 1 Starkie, 493; Butler y. Wildman, 3 Bam. & Aid.
398; Fent y. Toledo, etc., Co., 59 III. 349; Marcy y. Merchants* Mut Ins. Ck>..
19 La. Ann. 388; Perleyy. Eastern R. Co., 98 Mass. 414; Lund y. Tyngsboro, 11
Cush. (Mass.) 503; I^ne y. Atlantic Works, 111 Mass. 139; Gonzales y. City of
Galyeston, 84 Tex. 3, 19 S. W. 284; Jones y. George, ul Tex. 346; St. Louis, A. &
T. Ry. Co. y. McKinsey, 78 Tex. 298, 14 S. W. 645; Hlggins y. Dewey , supra ;
Annapolis & E. R. Co. y. Gantt, 39 Md. 115; Brady y. Northwestern Ins. Co..
11 Mich. 425; Hoyt y. Jeflfors, 30 Mich. 181; Weick y. Lander. 75 111. 93;
Barton y. Home Ins. Co., 42 Mo. 150; Kuhn y. Jewett, 32 N. J. Eq. 047;
St John y. American Mut. Fire Ins. Co., 11 N. Y. 510; Louisiana Mut. Ins.
Co. y. Tweed, 7 Wall. 44; 19 U. S. (Lawy. Ed.) 05; Milwaukee & St. P. Ry.
Co. V. Kellogg, 94 U. S. 409; Union Pac. Uy. y. Novak. 01 Fed. 573: Aetna
Ins. Co. y. Boon, 95 U. S. 117, 24 U. S. (l^wy. Ed.) kVJo; Kellogg y. Chicago
& N. W. R. Co., 20 Wis. 2*J;J; Atkinson v. Goodrich Ti-ansp. Co., 00 Wis. 141,
18 N. W. 704; Kreuziger v. Chicago & N. W. R. Co., 73 Wis. 158, 40 N. W.
<w7; Baltzer y. Chicago, etc., R. Co., 83 Wis. 459. 53 N. W. 8S5.
so* Carter y. Towne, 103 Mass. 507; Briggs v. Minneapolis St. Ry. Co., 52
Minn. 3(5. 53 N. W. 1019; Prue y. New York. etc.. R. Co. (R. I.) 27 AtL ^):
Jeffs y. Railway Co., 9 Utah, 374, 35 Pac. 505; Union Pac. R. Co. y. Cal-
laghan, 0 C. C. A. 205, 50 Fed. 998; McGalian v. Indianapolis Natural Gas
Co. (Ind. Sup.) 37 N. B. 001.
«06 Littlehale y. Osgood, 101 Mass. 340. 37 N. E. 375 (diphtheria resulting
from misrepresentation as to sanitary conditions of house).
Ch. 1] DAMAU£ AND DUTY. 79
Ir^ttHa Sine Damno,
The phnise of the civil law, "injuria «ine daiiino,'' was at an early
date applied to the common law. In Ashby v. White ••• it was
held that a man who has the right to vote at an election for a mem-
ber of parliament may maintain an action against the returning
officer for refusing to record his vote, though the candidate for
whom he offered to vote was elected. ISaid Lord Holt: "Surely
every injury imports a damage, though it does not cost the party
one farthing, and it is impossible to prove the contrary, for the
damage is not merely pecuniai*y, but an injury imports a damage
when a man is thereby hindered of his right." An "injuria" — that
is, a prejudicial violation of or interference with a right — imports
a Mamnum," for damnum is said to be the prejudice, the loss, dam-
age, or harm. Accurately speaking, there is said to be no injuria
sine damno because wherever there is injuria there is damnum,
wherever there is violation of legal right there is damage done.'®^
The language of Story, J., in Webb v. Portland Munuf'g Co.*®* is
constantly cited with approval:'*' "I can very well understand
that no action lies in case where there is dsimnum absque injuria;
that is, whei*e there is damage done without any wrong or violation
of any right of the plaintiff. But I am not able to understand how-
it can correctly be said (in a legal sense) that an action will not lie
even in a case of a wrong or violation of a riglit, unless it is fol
»»«2Ld. Raym. a38; 1 Salk. IJ); A Salk. 17; Holt, r.24; 6 Mod. 45; 1 Smith.
Lead. Cas. 268; Perrlnjj v. Unrrla. 2 Moody & R. 5; Mason v. Payater. 1
<j. B. d74. An actiou wHl lie ajcainst a clergy man for refusing to perform a
marriage ceremony. Davis v. Blaelc, 1 Q. H. IKKJ. And against a custom -
bouse officer for refusing to sign a bill of entry without payment of excessive
duty. Barry v. Aniaud. 10 Adol. & E. 646. It Is questionable whether Ashby
T. White would now be law. Cleric & L. Torts, p. 4. To maintain such an ac-
tion, it would certainly be necessary to show malice. Post, c. 4, "Executivi*
Acts."
- ♦ luncs, TorU.
«08 3 Sumn. 189, Fed. Cas. No. 17,322.
«o» By Bayley, J., Binbrey v. Owen, 6 Exch. 353^68. Generalljr. as to in-
juria and damnum, see Dixon v. Clow, 24 Wend. (N. Y.) 1S8: Blodgett v.
Stone, 60 N. H. 167; Hall v. Mayor of Bristol. L. R. 2 C. P. 322: Smith v.
Thackerah, L. R. 1 C. P. 564; Macomber v. Nichols, 34 Mich. 212; Thurston
v. Hancock, 12 Mass. 2»), Chase, l^ad. Cas. 23.
80 GKNERAL NATUKE OK TORTS. [Ch. 1
lowed by some perceptible damage which can be established as a
matter of fact; in other words, that injuria sine damno is not
actionable. On the contrary, from my earliest reading I have con-
sidered it laid up among the very elements of the common law that
wherever there is a wrong there is a remedy to redress it, and that
every injury imports damage in the nature of it; and, if no other
damage is established, the party injured is i»iitith*d to a verdict for
nominal damages. A fortiori, this doctrine applies where there is
not only a violation of a right of the plaintiff, but the act of the
defendant, if continued, may become the foundation, by lapse of
time, of an adverse right in the defendant; for then it assumes the
character not merely of a violation of a right, tending to diminish
its value, but it goes to the absolute destruction and extinguishment
of it. Under such circumstances, unless the party injured can pro-
tect his right from such a violation by an action, it is plain that it
may be lost or destroyed without any possible remedial redress.
In my judgment, the common law countenances no such inconsist-
ency, not to call it by a stronger name. Actual perceptible dam-
age is not indispensable as the foundation of an action. The law
tolerates no further inquiry than whether there has been the viola-
tion of a right. If so, the party injured is entitled to maintain his
action for nominal damages in vindication of his right, if no other
damages are fit and proper to remunerate him." It is perhaps not
unfair to say that efforts at a proper construction of injuria and
damnum have neither clarified the subject nor advanced thought.
The simple truth is that sometimes plaintiff can recover when he
hSiB not shown damage, and sometimes he cannot. On the one
hand, mere damage may not constitute a cause of action, in the ab-
sence of violation of duty. On the other hand, mere violation of
duty may not constitute a cause of action, in the absence of damage.
Tliere may be no such thing as a legal "wrong without damage/' •*•
but sometimes there cannot be a legal wrong unless there has been
damage. In some cases the law presumes damage, and in some
cases damage must be proved. In other words, there are two
kinds of rights, — one a simple right, the infringement of which is,
in the absence of exceptional circumstances, necessjirily actionable;
aio Add. Torts. § 1, subd. 8.
Ch. 1] DAMAGE AM» DUTY. 81
the Other is a right not to be harmed, the violation of which is ac-
tionable onlv when harm is suffered.**^
[kimages Presumed,
While there was much confusion in the use of tres])ass and case,
in a general way, trespass lay for direct invasions of another's
rights. In such cases, damage followed necessarily. The act was
wrongful, and the law would not have defendant say that plaintiff
suffered no harm in consequence. "If a man gives another a cuff
on the ear, though it costs him nothing, — no, not so much as a
Httle diachylon, — yet he shall have his action, for it is a personal
injur}'. So a man shall have action against another for driving
over his ground, though it do him no damage, for it is an invasion
of his property, and the other has no right to conic! there.'' ^^^ Act-
ual damages are not in general necessary to complete cause of action
on part of public authorities.'*^ And, in America at least, when
public oflBcers are guilty of a breach of duty to individuals, dam-
age is generally presumed.*** There is an essential reason for this
rule in the case of property. "Whenever any act injures another's
rijcht, and would be evidence in future in favor of the* wrongdoer,
an action may be maintained for an invasion of the i ight • * ♦
311 Pig, Tort8, 126. And see introductory chapter. Tho use of the term
"presumption of damajye** has been severely criticised. Townsh. Slnnd. & L.
55. "Presumption is rather assumption." Burrell, Prosump. Ev. 1043. On
the other hand, the distinction between a simple ripht nnd a rii;ht not to bo
harmed is pronounced "as unsati8factor3' a distinction as could well bo de-
Tised." And it is insisted that "the true answer is to be found in the prin-
ciples of presumption of damage." Pig. Torts, 12G. It is, however, neither
desirable nor feasible to abandon all teims which are subject to reasonnblo
criticism. The fact would seem to be, in these cases, that the presumption
of damages is a device adopted when the law desires to recognize a cause of
action, although no actual hann has been sulTered.
»»2 Lord Holt in Ashby v. "White, sui)ra.
"3 Atty. Gen. v. Bridge Co., 21 Ch. Div. 752 (1882); 3 Pom. Eci. Jur. 1742;
Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393, 18 Atl. 100; People v.
Mining Co., 66 Cal. 138, 4 Pac. 1152; Burlington v. Sohwarzman, 52 Conn. 181.
•■»»^ Moore v. Ploj'd, 4 Or. 101: Patterson v. Westervelt, 17 Wend. 543;
Hamilton v. Ward. 4 Tex. 356: Palmer v. Gallup, 16 Conn. 555; Loflin v.
Willard. 16 Pick. (Mass.) 64; Crawford v. Andrews. 6 Ga. 244; Daggett v.
Adams, 1 Me. 108; Rich v. Bell, 16 Mass. 21H; cf. Stimson v. Fnmham, 7 Q. H.
175. But see post, note 321.
LAW OF TOHTS— 6
82 GENKKAL NATUKE OF TORTS. [Ch. 1
without proof of anv sjK*ritic injury.'* ^^* If no cause of action arone
from a tresspass to real estate, which inflicted no appreciable dani-
aj?e. a rei»etition of such trespass would not be easily prevented,
and defendant, by his wrong, might acquire an adverse right,***®
and the owner be deprived of the charge for coming on the ground,
which lie would otherwise be entitled to niake.**^ With respect to
the extraordinary and unreasonable use of water rights, the general
opinion is invasion of rights usufruct in running stivams corre-
Hi>ouds to trespass to land. It is not necessary, in actions upon such
alleged wrong,, to allege and prove actual damages.'**'* The dam-
ages recoverable under such circumstances which are presumed
are called "legal," as distinguished from "actual," that is, they are
intangible, as distinguished from tangible; nominal, as distin-
guished from substantial.
31.'. Xoti» of Mr. Williams to Mt^Uor v. Sptiteman, 1 Wms. Saund. 346b.
3i« Thus, if a person tisli in another's fishery, and catch nothing, still a ver-
dict agaiuNt him will not he set aside, hecanse his viclation of the other's
ri>;ht uii};ht othenvise afterwards be exerciseii of rl^ht bj' him. Tunhridj:*
Well's Dipper (^ase. 2 Wils. 414; Blotteld v. Payne. 4 Bam. & Add. 410;
Bower v. Hill. 1 Binj;. N. C\ .■i49. An action on the case may be malntaiiied
against an Intruder by one haviuff a ri^ht of way, without proof of damage.
Williams v. Eslinj:, 4 Pa. St. 480; Appleton v. Fullerton, 1 Gray (Mass.) 18G.
3 17 Per Jessel. M. K., C(M)per v. Crahtree, 20 Ch. Div. 589, 592.
3 1*' In Kujrlish cases: Wells \. WatUner. 2 W. Bl. 1233; Hobson v. Todd
(1790) 4 Term R. 71; Pindar v. Wadswotth (1802) 2 Kast, 154; Marzetti v.
Williams (lS:io) 1 Barn. & Adol. 415, per Taunton, J.; Harrop v. Herst, supra.
And, >rcnerally, see Bower v. Mill, 2 S. C. 5:Vi. The burden of American au-
thorities coincides: (iould, Kaseni. S 21-1: Crooker v. Bragg, 10 Wend. (N. 1.)
'2m: Parker v. Oriswold, 17 Conn. 288, Davis v. Fuller, 12 Vt. 178; Munroc
V. Stltkney. 48 Me. 4r.2; Lund v. New Bedford, 121 Mass. 286; Seeley v.
Brush, 35 Conn. 424; Hulme v. Slirevo, 4 N. J. Eq. IKJ; Gladfelter v. Walker,
40 Md. 1; (Jraver v. Sholl, 42 I'a. St. 58; Dumont v. Kellogg. 29 Mich. 42():
Plumleijrh v. Dawson. 1 (iilman (111.) 544; Stein v. Burden, 29 Ala. 127; Wat-
son V. Van Meter, 43 Iowa, 7(»; Cory v. Silcox, 0 Ind. 39; Little v. Stanback.
(•►3 X. C. 285; Chapman v. Copeland. 55 Miss. 476; Green v. Weaver, 6:5 iJa.
:jo2; Ci'eijriiton v. Evans, 53 Cal. 55; Smiths v. McConathy, 11 Mo. 517; Amos-
keag Co. v. (roodale, 46 N. H. 53; Haas v. Choussard, 17 Tex. 588. Mr.
Blgelow, however, denies that such right is capable of such exact definition
as the rule involves (L(Mid. Cas. Torts, 518). And in 1 Eng. Ruling Cas. at p.
555, Mr. Irving Brown iM)lnts out inconsistencies In Mr. Blgeiow's reasoning.
C'il. 1] DAMAGI:: AND DUTY. 83
Adnnl Daninge.
But tbe damage may also be actual. If mere infliction of a wrong,
without actual loss, constitutes a tort, a fortiori, when that wmng is
also accompanied by considerable jH^cuniarj' damage, the person in-
jured is entitled to compensation. The line between legal and actual
daniiiges is often a fine one. Substantial damages may be recovered al-
tboujrh no actual damac^e be shown. Thus, if a bank throw out a
draft of a custcmier, who had sufficient funds in bank, the wrongful
act is injurious to the cr<»dit of the customer, and entitles him to a ma-
terial verdict, though no actual damage be proved.*
Damage Proted,
On the other hand, case '"" lay, not for diitfct, but indirect or conse-
(inential, wrongs. It applies in general to <*onduct not actionable of
itself, hut because of cons:'<iuences. If no actionable consequ -nces, ac
cordingly, are shown, then plaintiff cannot recover. While, on the
one hand, an assiiult is alwavH artionable (in absence of iM*culiar cir-
onmstances), on the other hand, negligence is actionable only when
danuiges recognized by the* law are shown.'**'' An action does not lie
against a sheriff for official misconduct unless actual damages have*
l)een caused plaintiff.-*-^ This is also true of malicious prosecution
icase), as distinguished fnmi false imprisonment **• (trespass). Espe-
<ially in cas(»s where the duty, the breach of which is complained of,
is also a public duty, is it necessary for plaintiff to show special dam-
age in himself.'*'-* This is cons]>icu()us in cases when a private ac-
tion is brought for a public nuisance*. The mere public wrong will
• Mar/etti v. Williams, 1 Karii. & Adol. 415.
319 Rolln V. Steward. 14 (\ B. r>o.">: Marzettl r. WiUiainfl, 1 Bam. & Adol.
41.J. And see Schaffiier v. Klirinan, 130 III. 917. 2<S N. E. 017; Patteraon v.
Marine Xat. Bank. VM) I'a. St. 419. 4M2. 18 Atl. (W2. See Norcnms v. Otis
Bros. Co.. 152 Pa. St. 4St, 25 Atl. 575; Bank v. (loos. 58 N. W. iU.
320 Post p. 810, "Xojrlipence."
321 Blaekbuni, J., in Stimsou v. Farnhani, L. R. 7 Q. B. 175. And H<»e Wylie
V. Birch, 4 Q. B. 5(Mi: Williams v. M( styn. 4 Meos. & \V. 145; Bnlcs v. Winj;-
lield. 2 Xev. & McN. STH: Planck v. An<lerson, 5 Term K. 37: Hirst v. Tendon,
»'tc., K. Co., 4 Kxcli. 188: (^lifton v. Hooper, 6 Q. B. 408. But see ante, note 314.
3*3 Trespass not case lay for false iniprisonmeut. McKelvey, Com. Law PI.
r,l; post, p. <k30.
«2* Shennv. Torts. 21.
M GENERAL KATUUB OF TORTS. [Oh. 1
not entitle the plaintiff to recover. He must show some specific
hann, as distinguished from that which the rest of the community
suffered. '^'^ Perhaps the clearest cases in which actual perceptible
damage is indispensable to the maintenance of an action are cases
of slander. Here in three cases the law will presume damage from
utterance of certain kinds of words; but in all other cases special
damage must be proved. And such special damages exclude many
kinds of harm which would naturally, perhaps, be thought action-
able.'** The consideration of what kinds of harm are recognized by
the law as constituting damage to complete plaintiff's cause of ac-
tion will be subsequently considered when the whole subject of dam-
ages is taken up. Special damages are always the gist of slander of
title.'*^ Even in trespass to land the difference may be found. A
life tenant may sue for the slightest intrusion; but a reversioner
can recover only when he shows actual damage to his inheritance.'*"
So with respect to trespass to the person. The rule was laid down
in 'Marys' Case" «" that, "if my servant is beat, the master shall not
have an action ♦ ♦ ♦ unless he lose the service; the servant
shall for every small battery; the master has no damage but by a per
quod; so that the original action is not the cause of the actian, but
the consequent upon it." Indeed, the truth would seem to be that,
in general, proof of damage is essential to a cause of action in tort,
and that cases in which an action will lie although no harm has been
suffered are exceptional."^
320 Ante, p. 9, note 20, "DistiDCtlon of Tort from Crime"; post, p. 7g2,
"Nuisance." See Fay v. Prentice, 1 C. B. 828 (projeiting cornice dropping
water on plaintiff's land).
••»2e PoBt, p. 366, "Nominal Damages," and post, p. 488, "Libel and Slander."
3 27 Post, p. 553; Shearw. Torts, 21.
328 Post, p. 553, "Trespass"; Baxter v. Taylor, 4 Barn. & Adol. 72; Yoiinjr
V. Spencer, 10 Bam. & C. 145; Jesser v. Gifford, 4 Burrows, 2141. The an-
tiquity of the distinction appears in the doctrine of "surcharge by common-
ers." See notes to Mellor v. Spateman, 1 Wms. Saund. 340b.
32» 9 CJoke, Ilia, 113a.
880 Clerk & L. Torts, c. G, p. 80; Pig. Torts, "Damage & Damages.*'
In general, 3 Bl. Comm. 123; Laflin v. WiUard, 16 Pick. (Mass.) 64; Car-
ter V. Wallace, 2 Tex. 20G; Parker v. Grlswold, 17 Conn. 288; Appleton v.
Fullerton, 1 Gray (Mass.) 186 (abuse of right of way); Alston v. Scales, 2
Moore & S. 5 (taking away soil, although a benefit result); Woodman v. Tufts,
Cb. 1] DAMAGK AND DUTY. 85
Remedy.
Wherever there is a legal wrong, the law provides a remedy. The
common law applied the maxim of the civil law, "ubi jus ibi reme-
dimn." ••* When it recognized new rights, it invented new remedies
or adapted old ones. Wlien the canse of action was entirely new,
**never the like of which was heard before," the case was said to be
^'primae impressionis/' The newness of a tort is no insuperable ob-
jection to an action on it, if it come within any principle upon which
the courts act; but the courts will grant no relief if it embrace some
entirely new principle."* Thus, one who suborns witnesses to swear
falsely to defamatory statements concerning another in a suit to
which neither of them is a party is liable to an action by the person
defamed; and the novelty of the action is no defense thereto.***
New actions on tort may be brought as often as new injuries and
wrongs are repeated; not as often as new damages accrue."* There-
9 N. H. 88 (backing up water). And cf. Williams v. Morland. 2 B. & G. 010
(calm flow of water); Embrey v. Owen, 6 Exch. 353; Sampson Y. Hoddinott,
1 C. B. (N. S.) 590.
«3i Pontfac V. Cortes, 32 Mich. 3O4-100; De May ▼. Roberts, 40 Mich. 1(J0-
KJG, 9 N. W. 140. Wherever the law gives a right, it gives the means neces*
sary to its enjoyment. McDanlels v. Walker, 44 Mich. 83, 6 N. W. 112. "It is
monstrous to talk of existing rights without applying corresponding reme-
dies." Fowler v. IJndpay, 3 Dall. 413. And see Bank v. Owens, 2 Pet 527,
539.*
»8"a Ashurst, J., in Pasley v. Freeman (1789) 3 Term IL 61, 61; Pollock. J.,
in Western Manure CJo. v. Lawes Chemical Ck)., L. R. 9 Exch. 218; Stockdale
T. Hansard, 9 Adol. & E. 1, 5. "It is said this action was never brought be-
fore. I wish never to hear this objection agaiu. This action is for tort. Torts
are infinitely various, not limited or confined. For there is nothing in nature
but may be an instrument of mischief." Pratt, C. J., Chapman v. Pickereglll,
2 Wlls. 145; Windsnirjrc v. (ireoulmuk, Willos, 577; Pasley v. Freeman, 2
Smith, Lead. Cas. (J)th Ed.) 1300. And see Yates v. Joyce, 11 Johns. (N. Y.)
13G; Sheldon v. SlioUtnn. 13 Johns. 325; Wardell v. Fosdlck & Davis, 13
Johns. (N. y.) 325; Monell v. Coldcn, 13 Johns. (X. Y.) 305; Adams v. Pai^o,
7 Pick. (Mass.) 542; CJilslm v. Gadsden, 1 Strob. (S. C.) 220.
»»» Rice V. Coolidge, 121 Mass. 393. And see Hartfield v. Roper, 21 Wend.
(N. y.) 615 (a case of first impression); Beasley, J., in Newman v. Phllllps-
burg Horse-Car R. Co., 52 N. J. Law, 446, 19 Atl. 1102; Vaughan v. Menlovc,
3 Bing. N. C. 4(58, 474 (as to whether there was a case of first Impression or
not the Judges disagree).
S34 Deumau, C. J., In Ilodsull v. Stallobrnss, 11 Adol. & K. 301, 306; Ham-
<S6 GENERAL NATURE OF TORTS. [Ch. 1
fore, a declaration averring that the plaintiff is a resident of a certain
school district, having children that he is desirous to have taught in
stiid school, and that thc^ defendants, directors of the school district,
contriving to deprive him of the Ixaiefit of having his children there-
in educated, unlawfully atlniittt^d coloied children into the school,
whereby the plaintitT was deprived of the benefit and advantage of
having his children taught in said school, is bad on demurrer. There
was a new kind of damage, but no new kind of wrong. ^^' Though it is
not a conrlusive objection that a case be of first inipre.<"<ion, "it is a
persuasive argument against its maintenance that in tlie niultiforni
complexity of human con(?ferns no similar action has bw^i main-
tained. If a case in law^ have no cousin or brother, it is a sure sign
that it is illegitimate.'' ^"*
28. Conduct, though improper and causing^ a loss to an-
other, does not constitute a tort unless —
(a) The damage conforms to the legal standard, ex-
cept -where it is presumed; and
(b) Thereby a legal as distinguished from a moral
right is violated; and
(c) Such conduct be traced to a responsible human
agent.
Damnum Absque Injuria.
The law does not undertake vain or impossible things. It has al-
ways recognized that in actual life many losses must go without com-
penwition, much hann be suffered without redress. Not every dam-
age in fact is damage in law.^^^ There are in ymrticular three classes
bleton V. Veere, 2 Wm. Saimd. KiO, 171b, note 1; M inter v. Swain, Ty2 Miss.
174; Herron v. Hughes, 2.j Cal. 555.
33 5 Stewart v. Southard, 17 Ohio, 402; citing Hannan v. Taiipenden, I East,
555. And see Anthony v. Slaid, 11 Mete (Mass.) 21H). So as to entieemeut of
wife. Winsmore v. Greenbank, Willes, .577. And an action by a husband
against a druggist for selling landannni to his wife. Hoard v. Pe<'k. .5(> Barb.
(X. Y.) 202. And see Harrison v. Berkeley, 1 Strob. (8. C.) 525.
3«6 Bacon (Shedding's E<1.) <K)7; Lamb v. Stone, 11 Tick. (Mass.) .527; An-
thony V. Slaid. It Mete. (Mass.) 21H}.
337 1 Hil. Torts, c. 3.
Ch. 1] DAMAGE AND DUTY. 87
of easc^, BometimeH distinct, but constantly shading into each othf»r,
in which this admitted inadequacy arisea
In the first place, the law has its own definition of what harm con-
stitutes damage which will have the «an<*tion of courts of justice.
There are many sptnries of loss which would, a(*cording to popular no-
tions, be substantial and important, which (Courts, for good reasons,
decline to compensate. Thus, it will presently be seen that "senti-
mental damages'' have not be(»n deemed entith»d to legal rt»cognition,
although in the popular mind this rule may work great practical in-
justice.^'* On the other hand, both the lay nolions and legal stand-
ards agree in excluding in many casetf petty and iuHiguificant or
merely nominal harm from judicial trial.
In the second place, a legal right must lye invaded in order that an
action of tort may be maintained. The mere fact that a complainant
may have suffered a damage of the kind which the law* recognizes is
not enough. Tli<?re must also be a violation of a duty recognized by
law. In the language of the civil law, mere damnum is not enough ;
there must also be injuria; that is, "Ex damno abs<]ue injuria non
oritur actio." "• "You must have in our law injury as well as dam-
jijrp." 340 jj^ Ashby V. White, above referred to,'*^ where a person
3 as Post, p. 364.
338 This maxim is not an explauatioii. It is only an a1)H«1;;piueut or nio-
inoria teohnica of tlie thioKS to bo explained. Pol. Torts, o. 4, subd. 9. "We
cannot pass the quotation of a so-called law maxim without entering our pro-
test against the reception of law maxiniH as legal axioms. We believe not a
single law* maxim can be i)olnted out which is not obnoxious to obJe<-t!on."
Townsh. 81and. & L. 71, note 1. "In Kii;;lish Jurispnidcnce tlu* chief purix>rt
of a principle seems to be to afford a nu<*leus for an enornious undcruniwth of
exceptions." I-K)ndcm Times. March ir», l.S8<), vpiottMl in Townsh. Slniid. & L.
34oja88ell, M. K., in Day v. Brownsrig^, 10 ('h. Div. 2l»4 (:{04); Ba<khousc
V. Bonomi, 1) H. L. iK)8: Salvin v. (^oal Co., 0 Ch. Ai)p. 7().">. It is an essential
to an action In tort that the act complained of should, midcr the circumstances,
l)e legally wrongful as regards the pai'ty C4)mplaining; that is, it must i)reju-
<licially affect him in some legal right. Merely that it will, however, do a man
harm In his interests is not enough. Uogers v. IlajciKlro Dutt, i:> Moore. 1*.
(\ 209. At the foundation of every tort there must be s<nue violation ol" a legal
diity. and therefore some unlawful act or <unission. Whatever, how numerous
341 Ante, p. 79.
88 GENERAL NATURE OF T0RT3. [Cll. 1
entitled to vote at an election was allowed to recover against the re-
turning oflScer for refusing to record his vote, if the plaintiff had not
had the right to vote, he could not have recovered, although the only
duty of the officer was to satisfy himself as to the identity of persons
claiming the right to vote.'*^ There is no right of privacy in the
enjoyment of premises, the invasion of which by opening of windows
can constitute a cause of action.*** "The violation of a moral right
or duty, unless it also amounts to a legal right or duty, does not con-
stitute a tort/' *** It may be wrong to lie and cheat, and prejudice
may result, but a legal action of deceit will not succeed unless plain-
tiff has suffered actual harm.^^^ On the same principle, a creditor
cannot maintain an action for fraud against one who has fraudulent-
ly purchased from a debtor property of the latter subject to attach-
ment, and aided him to abscond, thereby preventing the creditor from
arresting the debtor, or attaching his property, or otherwise obtain-
ing satisfaction of the debt,**** where he has no lien or claim upon
or formidable, be the allegations of conspiracy, of malice, of oppression, or of
vindictive purpose, they are of no avail. They merely pile up epithets, unless
the purpose intended, or the means by which It was accomplished, are shown
to be unlawful. Finch, J., in Rich v. New York Cent & H. R. R. Co., 87 N.
Y. 382.
342 Piyce V. Belcher, 3 C. B. 58, 4 C. B. 806. And see Lee v. W. U. Tel.
Co., 51 Mo. App. 375.
8*3 Tapling v. Jones, 11 H. L. 290. Where P. and D. owned adjoining houses,
between which there was no party wall, and water flowed from D.*s house to
P.'s through a defective pipe, which supplied D. with water from water-
worlvs, D. was held not liable for damage caused to P. In the absence of negli-
gence on th^ part of D. Sutton & Ash v. Card, AVkly. Notes (188(5) 120.
344 Chase, Lead. Cas. 8; 1 Aust. Jur. lect. 5, "Conflict of Law and Morality,**
at page 99; Rex* v. Smith, 2 Car. & P. 449.
346 Feller v. Hodgdon, 25 Me. 243; Ide v. Gray, 11 Vt. G15; Alden v. Wright,
47 Minn. 225, 49 N. W. 767; Hutchins v. Hutchlns, 7 Hill (N. Y.) 104; RandaU
V. Hazelton, 12 Allen (Mass.) 412.
340 Lamb v. Stone, 11 Pick. (Mass.) 527; Bradley v. Fuller. 118 Mass. 230;
Dawe v. Morris. 149 Ma.ss. 188, 21 N. E. 313; Wellington v. Smnll, 3 Cusb.
(Mass.) 145. However, it lios been held recently that a judgment creditor
may main tn in an action at law against the judgment debtor and another to
recover damages for conspiring to prevent the collection of the judgment by
removing and disposing of such debtor's property, and placing it beyond the
reach of oxecution. Braeni v. Bank. 127 N. Y. 508. 28 N. E. 597, distinguish-
ed, llurwitz v. Hurwitz rCity Ct. N. Y.) 30 X. Y. Supp. 208.
Ch. 1] DAMAGE AND DUTY. 8*.)
or interest in the property so purchased. When legal relief is denied
to one who suffers damage conforming to the legal standard, the rea-
son is to he found in the proposition that the law does not infer that
merely because one man has suffered harm he must have compensa-
tion, and some other must pay. The monstrous task of insuring
against all loss has not been undertaken. On the contrary, not only
have large and important classes of losses been denied judicial recog-
nition, but the very nature of many admitted rights necessitates that
much harm should go uncompensated. Wrong can never be predicat-
ed on an act which the law permits.'*^ * Where a legislature author-
izes certain conduct, damages directly resulting, or naturally and
properly incident thereto, can never be recovered without reducing
legal authority to a nullity.'*" In the management of property, most
substantial harm may be caused to a neighboring owner. When the
extent to which one may use his own is defined, it necessarily follows
that damage incident to such authorized use is "absque injuria," '*•
»*7As in cases of fraud: Tticker v. Drako. 11 Allen (Mass.) 145: O'Don-
nell V. Segar, 25 Mich. 367; North v. Shearn. 15 Tex. 174; Cipperly v. Rhodes,
53 lU. 34G; RandaU v. Buffluj?ton. 10 Cal. 491.
34« In the exercise of the power of a municipality to grade streets, change
grade, rebuild them, and tlie like, an individual property owner suffers In-
convenience and expense that does not entitle him to recover damages.
Smith v. Washington, 20 How. 135; City of Ponliac v. Carter, 32 Mich. 1(U;
Northern Transp. Co. v. Chicago, 99 U. S. (65; Callender v. Marsh, 1 Pick.
(Mass.) 418 et seq.; Radcliff's Bx'rs v. Mayor, etc., 4 N. Y. 105. Statutory au-
thority to a railroad company to close streets renders damages suffered by
the owner of property, less accessible from the direction of the gate built
under such authority, damnum absque injuria. Buhl v. Fort Street Union
Depot Co., 98 Mich. 59G, 57 N. W. 829. Post, p 140, "Damages Incident to
Authorized Act."
3* » Cumberland Telephone & Telegraph Co. v. United Electric U. Co., 42
Fed. 279. A lawful act may be the foundation of a tort. Post, p. 779, "Nui-
sance." It has been held in this country that no tort is created by obstruc-
tion to light and air. because no one has projiorty in light and air. Quest
V. Reynolds, G8 111. 478; Panton v. Holland, 17 Johns. (X. y.) 92. But it is
otherwise in England. There the easement of light and air is recognizetl,
and interference with it is actionable. Yates v. Jack (18GG) L. R. 1 Ch. App.
Gas. 295; Scott v. Pope, 53 Law T. 598. Cf. Harris v. De Pinna, 80 Law T.
427. If by sinking and using a well on one's own premises the supply of wa-
ter in a neighbor's well is substantially decreased, no action wlU lie, because
8ueh diversion of percolating and subterranean waters Is a right necessarily
90 liKNKUAL NATURK OK TOKTS. [Ch. 1
So, if oiw build up a profitable business without competition, and a
rival dentroy it by legitimate meanw, there is no remedy, for tlie law
encourages competition.''''*
In the third phice, there may b(» damage oonfonning to the legal
standard, and a right viohited, and still no recovery by the sufferer,
because the cause of the Inirm is either (1) inevitable accident; ^^^ (2)
an agent who is irresponsible Ix^eause of natural status (as in the case
of infants, lunatics, etc.), or peculiar circumstances (as in the case of
agencies of tlie state, judges, legislators, etc.); or (3) is so remote that
it WiMild be immaterial and unreasonable to trace consequences so far
back.
THE RIGHT OR DUTY VIOLATED.
29. Conduct to give rise to an action on the tort majr
consist of a violation of a duty prescribed by
(a) The common law;
(b) Contract;
(c) A statute or ordinance.
SAME— COMMON-LAW DUTIES.
30. The common law is composed of recognized customs,
of Ti^hich reported cases are exemplifications. The develop-
ment of the common law is largely due to judicial legisla-
incident to the ownership of soil. Acton v. Bluntlell, 12 Mees. & W. 341-^345;
Humphreys v. (^»usins, 46 L. J. C. P. 438; Chaseiuore v. Ulcliards. 7 H. L.
Cas. 'M9; Ocean G. C. M. A. v. Commissioners, 40 X. J. Kq. 447. 3 Atl. KW:
Ballard v. Tumlinson, 29 Ch. Div. 115; Cornhig v. Troy Factory, 40 N. \.
191; Stowcll V. lincoln, 11 (iray (Mass.) 434. As to rights and <Uities in con-
structintj l)uildiuKS, see Clemens v. Si)eed, 9;{ Ky. 284, 19 S. W. 600. As to
lateral sui)iK>rt, see Thurston v. Hancock, 12 Mass. 220.
•J'»" In the celebrated (iloucester Graunnar School Case (1410-1411, Hilary
Tcrini 11 Hen. IV. i>. 47. pi. 21. it was hehl that two masters of thnt school
could not sue a third person, who started a similar school in the same place,
wlicreby they lost in the subtraction of scholars. Xo one has a rijxht to a
monopoly. Accordingly no action lies for damages resulting from compi»ti-
tion in business. Post, p. 14."). "Common Rights."
:'"i Ante. p. (H. "Connection as Cause." Tims there may be no liability for
a trespass where th^» act is unintentional or involuntary.
III. 1] COMMON-LAW DUTIKS. 91
tion. The three main heads of common-law duty with
which the law of torts is concerned are:
(aj To abstain from willful injury;
(b) To respect the property of others, and
(cj To use due diligence to avoid causing harm to
others. '^^
EnfflUh Common Iaiw.
The cominon law of England was compoBod of the oustomR of the
realui, or a system of adjudicated rules, of which reported cases are
only exeniplificatioDS.^®' A simple illustration of the growth of a
custom into counnon law is in the law of the road.^*^* Again, with ,
regard to a declaration against a carrier, "originally the practice
was to set out a custom of the realm. That was discontinued be-
t-anse the custom of the realm became the law of the realm, and the
courts take notice of it. * * * An action based on custom is in
substance a tort.*' '°* Again, mining customs became valid laws
because of the acquiescence of the people.*'*
•5 2 Pol. Torts. I 2:?.
^52 But it is coniiuouly supposed hy writers on Jurisprudence (Roman. Kuii:-
iisli. (rermau. aud others) that law slinped upon customs obtains as positiv(*
law, dependently of the sanction adjec*ted to tlie customs by the state. It
is supposed, for example, by Hale and Blackstone, and by other writers on
English jurisprudence, that all the Judiciary law administered by the com-
mon-law courts, excepting the Judiciary law which they hjive made upon
statutes, is customary law. and that, sinc*e this customary law exists as posi-
tire law by force of immemorial usage, the decisions of those courts have
not createtl, but have merely exi>ounded or declared it. 2 Aust. Jur. lect. 30,
p. 27.
3"'* Post. 877, "Negligence."
^''M'oggs V. Bernard, Smith. I^ad. Cas. (Dth Am. Ed.) :r»4. nnto.
^'^'^ As in California, in case of ere<'tion of a dam tIo<jding other chiims. Stone
V. Rumpus, 46 Cal. 218; Morton v. Solambo Copper Min. Co., 2<> Cal. 7^11;
Packer V. Hea ton, 9 Cal. .>(>0; Strang v. Ryan, 40 Cal. 34; St. .Tohn v. Kldd. 2'J
Cal. 264; Harvey v. Ryan, 42 Cal. 626. And see Sullivan v. Huese, 2 Colo. 424:
Oreamuno v. Uncle Sam Co., 1 Xev. 215; Mallet v. Uncle Sam Co., Id. ISS;
Atchison V. Peterson, 20 Wall. r»07-r)10; Rogers v. Brenton, 10 Q. B. 25;
Carlyon v. Ix>vering. 1 Hurl. & N. 784; Madras Ry. Co. v. Zi'nilndar, L. R.
1 Indian App. 3(>4. So as to custom In booming logs. Saunders v. Clark. 1(W>
Mass. ii31, A uniform general cu.stora as to the use of a stream by "taniiers
«uglit to have a controlling force. Redlield, J., in Snow v. Parsons. 28 Vt. 451).
92 GENERAL NATURE OF TORTS. [Ch. 1
American Common Law,
The greatest part of the present American law of torts is derived
from the common law of England. The early common-law reports are
still the fountain head of learning on this subject There is no na-
tional common law in the United States, distinct from that adopted
by the several states, each for itself, except so far as the history of
the English common law may be involved in the interpretation of
the federal constitution. The judicial decisions, the usages and
customs of the respective states, determine to what extent the com-
mon law has been introduced. What is common law in one state
may not be so considered in another.^'^ Ko state courts in this
country derive their existence from the common law. They are all
established either by the provisions of the organic law or by legis-
lative enactment. Their jurisdiction is not uniform. Some of them
have only a special jurisdiction, limited as to amounts or subjects
in controversv."**
Judicial Legialaiion.
As clearer and enlarged conceptions of legal rights and duties
came with increasing complexity of society, the law adjective was
adapted and extended ta meet recognized changes in the law sub-
stantive. As new rights were admitted, new remedies were pro-
vided. Part of this development is the result of statutory enact-
ment, but in large measure it has been effected by the courts. The
doctrine of fellow servant may bo cited as an illustration. "There
is no branch of the subject of torts which gives rise to so many de-
cisions which are difficult to reconcile. It forms perhaps the purest
example of judge-made law, and all such law is pervaded with some
uncertainty."*^® The part which the courts have taken in this de-
velopment, and judge-made law, has been severely criticised.'*®
367 Wheaton v. Peters, 8 Pet. 591 (658); Smith v. Alabama, 121 U. S. 4(K>,
8 Sup. Ct. 5(U.
808 In re Dean, 83 Me. 489, 22 Atl. 385.
860 Pig. Torts, 229.
8«o Amos, Jur. 50; Jervis, C. J., in York, etc., R. Co. v. Queen, 1 El. & Bl.
858-864; Gibson. C. J.. In Ammant v. Turnpike Road, 13 Serg. & R. 210.
212, 213; Essay on Judicial Legislation, Wm. Rand, Jr., 8 Harv. Law Rev. 328;
Cooley, Torts, 'Mudicial Developments of the I^w,*' pp. 19-21. Mr. Austin
C2 Jur. 103-116, incl.) considers, in Lecture 38, •'Groundless Objections t^ J;i-
Ch. 1] U)MMO.\-IJkW DUTIES. 93
Oommon-Law Clawficaiwn of Righi$.
l.'niike the civil law, the common law made no attempt at scien-
tific classifications of duties and remcnlies. It knew no logical ap-
plication of abstract principles of justice. Indeed, it did not dis-
tingoish clearly between the wrong done and the remedy provided
therefor. The real question was not whether there was a tort, but
whether legal means for redress could be found to fit the case. Ac-
cordingly the law adjective practically determined rights.
It would not seem that there has been any scientific division of
rights which is entirely satisfactory."'* The language and classifi-
cation of Blackstone has passed into general thought and language.
That familiar division was this: that the rights of persons are (1)
absolute, viz. the enjoj-ment of (a) )>ersonal security, (b) personal
liberty, (c) private property; and (2) relative, viz. (a) public, (b) pri-
vate.'** Mr. Austin recognizes absolute and relative duties. A
duty is relative, he says, or answers to a right, where the sovereign
commands that the act shall be done or forborne towards a de-
terminate party, other than the obliged. All other duties are abso-
lute.'** However, in liis "Analysis of Pervading Notions,"'** he
denies that there are corresponding rights. " 'Absolute rights' and
'relative rights.' These expressions, as thus applied, are flatly ab-
surd; for rights of both classes are relative, or, in other words,
rights of both classes correlate with duties or obligations. The only
difference is that the former correlate with duties which are incum-
bent upon the world at large; the latter correlate with obligations
which are limited to determinated individuals.'* This general con-
clusion, as applied to the right of reputation, Mr. Townshend insists
dicial Legislation.** and in lecture 39 the "Disadvantages of Judicial Leglfl-
latlon.-
361 Perhaps as satisfnc'tory a cinsslticatlon as any is that contained in note
3, ante, p. 3.
»«2 1 Bl. Comm. cc. 1-18, Incl.; 2 Kent, Comm. 1-^; 1 Burrill. Prac. 30.
»•« 1 Aust. Jur. lect. 17. p. 278, sub. 579. "The notion of a lepal duty In-
volves something more than a tax on a certain course of conduct." O. W.
Holmes, Jr., 6 Am. Jmw Rev. 723, 724.
3*4 Aust Jur. lect. 14, p. 2G4, sub. 530. "Rights are not absolute, but rela-
tive. Rights grow out of duty, and are limited by duty." Jenkins, J., in
Farmers* Loan & Trust CJo. v. Northern Pac. R. Co., CO Fed. 803 (812).
IH GENKRAL NATURE OK TORTS. [Ch. 1
is nccoHHary."* There is a corresponding: dispute with reference to
property rights, as in the case of the right to lateral support.***
Although it is impossible to lay down any general principles to
which all common-law actions of tort may be referred,**^ it will be
found that they are in the main directed to afford the simple remedy
of pecuniary satisfaction for direct and obvious invasions of three
elementary rights: (1) The right of personal liberty and security;
(2) the right of reputation ; and (3) the right of property.*** Dome8-
tic duties have been treated as rights of property.*** Breach of
political rights has been made the subject of an action on a tort.*^"*
The law has gone to great extremes to fully recognize all private
lights. It recognizes the right of privacy as distinct from rights of
property and reputation,*^ ^ and provides damages for its viola-
tion.*'* Therefore, where a physician took an unmarried, unpro-
fessional friend with him to attend a woman in confinement, and
without real necesHity for his assistance, both the physician and bi«
friend were held liable in damages, although it was not until a long
lime afterwards that the patient or her husband discovered that the
intruder was not a professional man.*'*
3«5 TowuBh. Sland. & L. c. 3.
»«« Post, 752. "Nuisance," note 38. Cf. Glltlllan, O. J., In MCuUough v. Rail-
way Co.. 52 Minn. 12-15, 53 N. W. 802, with Wood. Nuls. c. 5.
.167 The classilication of tlie modern Jurisprudence han for couveuieuce been
anticl|)ated. Ante, note 3, p. 2.
»«« Clerk & L. Torts, p. 3.
3»» Id. And see .Taynes v. Jayiies, 31) Ilun, 40; Warren v. Warren, 89 Mich.
12:J. 50 N. W. 842.
3T0 Ashby v. White. 1 SiUk. 11), 2 Ld. Uaym. IKW. 1 Smith. I.ead. Cag. 464.
Post, p. 135.
"71 Post, c. 5, "Injunctlou."
872 4 Harv. I^w Kev. 11)3.
«78 De May v. Uoberts, 4«5 Mich. 1«0. 1) \. W. 14(»; Schuyler v. Curtis. 27
Al)b. N. C. :J87, 15 N. Y. Supp. 787; Corliss v. E. W. Walker Co.. 57 Fed.
434. For an article ou the exteusiou and development of the law of liuH-
vldual rights as particularly applicable to the rightn of j)rivacy. neo Madras
L. J., republished In r, (Irecu Buk. 498. Post, 350, *'InJuihtion.*' Thrit there
Is no Invasion by opening windows, see Tapllng v. Jones, 11 H. L. 2tM).
Ch. 1] STATl'TKS AXI) ORDIXANTFiJ. tlT)
«
SAME— CONTBACT DUTY.
31. If a common-law duty result from the facts in a par-
ticular case, a party to a contract may be sued in tort for
any negrligence or misfeasance in the execution of the con-
tract.^*
Willie an action of tort will not lie for mere breach of contract,
a contract, in connection with other circuniMtanceH, enptM-ially where
certain conventional relationHhipH are entered into, may create a
duty, for the breach of which an action on the tort will lie.'^^ TIiuh,
jis between niaHter and mMvant, common carrier and passenger or
Hhipper, a telegraph company and the sender of a message, the vio-
lation of the contract may give rise to a cause of action ex contractu
or ex delict o.°^' And, indeed, a violation of a simple contract Ih»-
tween two parties* not involving any such relatioushipy may give
rise to a cause of action in tort.^^^
BAMS— STATUTES AND OBDIKANCES.
82. Where a statute, or a municipal ordinance author-
ized by statute, imposes on a person a duty designed for
the protection of others, he is liable to those persons for
inrhose protection it was imposed for any damages result-
ing proximately from neglect to perform such duty, and of
the character which the statute or ordinance was designed
to prevent.
('riticised as the courts have Imhmi for rendering legislative deci-
mons, they have not been able to meet the necessities of the years
without the assistance of legislation. Legislatures are constantly
called upon to abrogate or modify the ruling of courts of law. This
»-< PoMf. "N^llijonce." p. 897.
»T8Ante, 2«. "Quasi Contrui't/' PuMt, p. 897, "Nt'^'llgt'iice." ''Contrsict
Duty."
«T7 iiich v. New York Cent. & H. K. U. Co., ST N. Y. 3S2.
^6 GENERAL NATURE OF TORTS. [Ch. 1
appears in the earlier history of the common law.^'* WTien that
system of jurisprudence was applied to a new and undeveloped
country, like the United States, many doctrines underwent a change
without much legislation. Thus, cutting down trees in England is
held to damage the freehold, while in America it is not waste, but
in many cases may be a valuable and expensive improvement''^
With respect to the restraint of animals by fences, the changed con-
ditions, especially on the great plains, were met by needed and varied
legislative action. As, whereas under the common law the owner of do-
mestic cattle was bound to restrain them, at his peril, so far as their
trespasses were concerned, in America a great number and variety
of statutes have been passed in recognition of the absence of fences
on the plains, and governing the hording of cattle.^*® The scattered
population, and the physical necessities of what was at one time de-
scribed as the "Great American Desert," have led to radical changes
in the law of waters and water courses, as to the respective duties
and rights of the owners of the upper and lower tenement."'*
As civilization has advanced, statutory enactments have multi-
plied for the protection of life and property against its necessai'v
dangers.'*^ The modern inverted street, the high building, calls
for the exercise of the police powers of the state in the requirement
of fire escapes, the regulation of elevators, and the like, for the pro-
tection of its inmates and the public. The introduction of steam and
electricity, and the extension of the use of explosives, have also led
to many statutory requirements as to the observance of specified
precautions and prohibitions. Incidental to modern commerce are
countless things of offense or annoyance to the community, in the
ST8 As the statute of Aune as to fire, and St. Wcstiu. II. as to pleading.
aTo Post, p. 701, "Waste."
880 Poet, p. 922, "Negligence," "Statutory Duty," "Fences." In both l^ng-
land and America there are many statutes regulating fences about railroads.
For illustration of statute as to highways, see Carpenter v. Cook (Vt.) 30 Afl.
998. At common law, owners of cattle allowed animals to run at large at their
peril. This nile is changed, for example, in Indiana, Welch v. Bowen, 1(>3
Ind. 252, 2 N. E. 722.
a«i Post, 7r>3, "Nuisance," "Water Rights."
382 A curious instance Is the right of a wife to recover damages ^.gainst a
saloon keeper for the intoxication of her husband. Black, Intox. Liq. §$ 283,
30C-311,
Ch. 1] STATCTKS AND ORDINANCES. 97
enjoyment of comfort and property, with respect to which the com-
mon law of nnisance is exceeding Tai;ue, and with respect to which
legislatures have defined rights and duties. Valuable kinds of prop-
erty or privileges, like patents,*" trade-marks,'** And copyrights,***
with their corresponding rights and duties, are almost purely mat-
ters of statutory regulations. These various statutes, in the great
majority of cases, create both rights in rem and rights in personam,
and give rise to correlative duties.
The statute of Westm. IL (1 Stat. 13; Edw. L c. 50) expressly
gave a remedy, by an action on the case, to all who are aggrieved
by the neglect of any duty created by any statute.*** What these
duties are, depends upon an interpretation of the statutes, governed
by principles of statutory construction.**' The federal courts will
always follow the construction given by the state supreme courts to
the statutes of their respective states.* *• The mere fact, however,
>>3At common law, and independent of the act of congress, authors and
ioTentoTB acquire no exclusive right to the benefit of their writings and discov-
eries The character of the remedy to which a person who is injured by a
breach of the statutory duty in these respects is entitled is dc^tormined by a
construction of the statute. Dudley v. Mayhew, 3 N. Y. 0.
>•« Grah. Trade Maries.
"5 Walk. Pat.
"•2 Inst 486. Com. Dig. "Action upon Statute/* P, p. 452, And ace
Heeney v. Sprague, 11 R. I. 463. And see 12 Am. Law Rev. 180-101.
>ST An action against a county for damages under a statute must be brought
while the statute is in force, as the repeal th^ eof talces away the right of ac-
tion. Cope v. Hampton Co. (S. C.) 10 S. E. 1018. The construction of an order
of a town council requiring a railroad company to keep a flagman at a crossing
is for the court alone. An order by a town council requiring a railroad com-
pany to keep a flagman at a crossing, without specifying any time for so doing,
requires a flagman by night as well as by day, if trains are then liable to pass.
Wilson V. New York, N. H. & H. R. Co. (R. I.) 20 Atl. 300. Further as to con-
struction and application of statutory duty, see Birmingliam Mineral R. Co. v.
Parsons (Ala.) 13 South. 602 (cattle guard); Kinard v. Columbia, N. & L. R.
Co., 30 S. C. 514, 18 S. E. 110 (crossing collision); Louisville, E. & St L. Consol.
R. CJo. V. Lee, 47 111. App. 384 (crossing signals); Whllton v. Richmond & D.
R. Cov, 57 Fed. 551. As to construction in state or United States courts, see
Western & A; R. Co. v. Roberson, 0 C. C. A. 646, 61 Fed. 502, 004.
388 Burgess v. Soligman, 107 D. S; 20, 2 Sup. Ct. 10; Bucher v. Cheshire R.
Co., 125 U. S. 565, 8 Sup. Ct. 074. The construction of a state statute by the
state supreme court is the rule of interpretation within the state for the federal
LAW OF TORTS— 7
98 G£MERAL NATURE OF TUKTS. [Ch. 1
that the broach of a mere statutory duty has caused damage, does
not vest a right of action in the x>erson suffering damages, against
the person guilty."*
The statutory remedy, in the first place, may exclude or limit the
right of private action. The penalty provided by the statute under
consideration must be carefully regarded. Where the statute pro-
vides no penalty, and merely "enacts or prohibits a thing for the
benefit of a person, he shall have a remedy upon the same statute
for the thing enacted for his advantaj^e, or for the recompense of a
wrong done to him contrary to the said law."'** **Where a penalty
is created by statute, and nothing is said as to who may recover it,
and it is not created for the benefit of the party grieved, and the
offense is not against an individual, it belongs to the crown, and the
crown alone can maintain suit for it.''**^ That the statute may also
provide a penalty for disobedience to its requirements does not pre-
vent one injured by such disobedience from recovering against the
wrongdoer.'*^ If, however, the statute provides a i)enalty to the
party aggrieved, either alone, or coupled with a penalty to the
state or to the informer or relator, the penalty to the party ag-
grieved is always in lieu of his action."**
couits, although the statute was adopted from another state, where it had
been differently eonsti*ued. Chicago, li. I. & P. Ry. Co. v. Stahley, 11 0. C. A.
88, G2 Fed. 3G3.
8«» Philadelphia, W. & B. R. Co. v. Philadelphia, etc., Towboat Ck).. 2n How.
209; Maine, Dam. p. 4; Atkinson v. Newcastle, L. R. 6 Exch. 404. 2 Exch. DIv.
441; Gray v. Pullen, 5 Best & S. 970. Post. p. 2;W. "Indei)eiident Contractors."
This subject wUl be discussed at length under "Negligence."
s»o 1 Com. Dig. tit. "Action upon Statute," F, p. 452; Anon., 6 Mod. 27;
Braithwaite V. Sliinner, 5 ^lees. & W. 313; Mitchell v. Knott, 1 Sim. 497. As
to rights in i-em, the English market cases are good illustratlonfi,— Bridgland
V. Shapler, 5 Mees. & W. 375; Homer v. Whltechapel District Board of Works,
."»! Law T. (N. S.) 414. And see Hurrell v. EUis. 15 Law J. C. P. 18; Rodgers
V. McNiiniara, 23 Law J. C. P. 1. Rights in personam may be lUustrated by
the fencing cases wlilcli will be hereafter considered under "Negligence."
891 Earl Selborne, C, in Bradlaugh v. Clarke, L. R. 8 App. Gas. 354 (358).
»»2 Kidder v. Dunstable, 11 (Jray (Mass.) 342; Hyde Park v. Gay, 120 Mass.
589; HartnaU v. Ryde (Dom'rs, 4 Best & S. 301; Rownlng v. GoodchUd, 2
Wm. Bl. 906. And see Turnpike Co. v. Brown, 2 Pen. & W. (Pa.) 462; Almy
V. Harrts, 5 Johna (N. Y.) 175; Young v. Davis, 7 Hurl. & N. 760; 2 Hurl. & C.
197.
S8S pi|^. Torts, 196, citing Doe v. Bridges; 1 Barn. & Adol. 847. in which the
L\i. 1] STATUTEd AND OBDIXANCEsJ. 99
In the second place, where a statute creates a duty with the ob-
ject of. preventing a mischief of a particular kind, a person who, by
reason of another^s neglect of the statutory duty, suffers a loss of
a different kind, is not entitled to maintain an action in respect of
SQCh loss.^***
And finally the duty created may be for the public, or for some
other class of persons than that to which the plaintiff belongs. Un-
der such circumstances, he cannot maintain his action.*
Ordinances.
It has been insisted that a municipal ordinance does not create a
civil duty where none exinted at common law, enforceable in a com-
mon-law action. "The national or state legislature may do this, for
it is the supreme power, and, as such, can make that immoral which
was before indifferent, and that neglect which was before prudence;
but the city ♦ ♦ ♦ ims no such power." ^^^ This doctrine ban
been applied as between [>rivate individuals,'*' and e8X>ecially to mu-
nicipal corporations.^*^ Where, however, a statute has authorized
the municipal corporation to provide protection against injury toper-
sons and property, it confers plenary i)ower upon such corporations
to require the performance of duties by ordinance. Thus, if a stat-
ute authorises a city to require railroad companies to provide pro-
tection against injury, the corporation may require the company to
erect a fence between the railroad and a park, and failure on the
following mle Is laid down: "Wlierean act creates an obligation, and enforceR
the performance in a specified manner, we take it to be a general rule tbat
performance cannot be enforced in any other manner."
>>< ThnB, where a statute was designed to prevent the spread of contagious
disease among animals carried from a foreign port to England, it was held that
a shipper could not recover for sheep washed overboard by reason of a failure
to comply with statute. Gorrls v. Scott, L. B. 9 Exch. 125.
♦ Post, p. 920.
"« Mr. Justice Goi-dan, in Pennsylvania R. Co. v. Ervln, 80 Pa. St. 71. And
seePuchs v. Schmidt, 8 Daly (N. Y.) 317; Kuby v. Boylston Market, 14 Gray,
249.
"« Pennsylvania R. Co. v. Erviu, 89 Pa. St. 71; Pennsylvania R. Co. v. Boyer,
07 Pa. St 91; Adm'r of Chambers v. Trust Co., 1 Disn. (Ohio) 327. In this
class of cases, where the ordinance requires the performance of a common-
law duty, It is properly admissible in evidence. McNerney v. Reading City,
150 Pa. St. Oil, 25 Atl. 57.
3»7 Fiynn V. Canton Co., 40 Md. 312; Van Dyke v. Cincinnati, 1 Disn. (Ohio)
632. Post, p. 175, "Municipal Corporations," "Negligence."
100 GENhllAL NATURE OF TORTS. fCh. 1
part of the company to comply with such a requirement may be
actionable negligence." *' A manicipal charter is a suflQcient stat-
utory authority."*
LAWFUL AND UNLAWFUL CONDXTCT.
S3. LawAil conduct may becoxne the foundation of a tort,
and the doing of an unlawful act, or of a lawful act in an
unlawful manner, is not necessarily or invariably a tort.^"^
Pergonal Conduct Actimiable because of Ivjurioiis Consefiuences,
There is an important and recognized distinction between conduct
which is in itself directly and necessarily a yiolation of a legal rights
or conduct which necessarily produces actionable consequences, and
conduct which may be innocent in itself, and actionable only when it
results in damage as a natural and probable consequence. Thus un-
provoked assault, seduction, or trespass on land are immediate in-
vasions of rights. On the other hand, a nuisance is often only a con-
sequence or a result of what is not directly injurious, but sometimes,
like trespass, a nuisance is a direct wrong.*®* Before any step i»
taken under a conspiracy it may be indictable; *®* but it is in gen-
»•« Hayes v. Michigan Cent R. Ck)., Ill U. S. 228, 4 Sup. Ct. :5!W. It Is diffi-
cult to suggest any difference In principle between an obligation imposed by
statute and one imposed by ordinance in pursiunce of statutory authority.
Ruger, C. J., In City of Rochester v. CampbeU, 123 N. T. 405-416, 25 N. B. 937.
This leading case is subsequently considered under '^Negligence." Post, p. 919,
''Municipal Corporations." Municipal ordinances often determine the rate of
speed of trains and vehicles and determine duties as to flagmen, lights, gates,
etc.
«•» Bott V. Pratt, 33 Minn. 323, 23 N. W. 237; Texas & P. Ry. Cx>. v. Nelson,
1 C. C. A. 088, 50 Fed. 814. Generally, as to breach of municipal ordinance, see
Osborne v. McMasters, 12 Am. St. Kop. (}S)8, and note. If the ordinance is void
because unreasonable (Burg v. Chicago. R. I. & P. Ry. Co. [rowa] 57 N. W.
(580), or enacted without authority (Burrow v. President, 3 Lacq. Jur. 180), no
statutory duty is created.
400 Clerk & L. Torts, 328; Cumberland Telephone & Telegraph Co. v. Elec-
tric Co., 42 Fed. 273.
401 Ang. Water Courses, 550. But see Lawton v. Steele, 119 N. Y. 226, 2:;
N. E. 878; Delaware & R. Canal Co. v. Lee, 22 N. J. I^w. 243.
402 Post, p. 635, "Conspiracy"; 2 Bish. Or. Law. § 171; Clark, Cr. Law. 117.
Ch. 1] LAWFUL AXD UNLAWFUL CONDUCT. 101
eral actionable only when the complaining partv has sustained in-
jury because of it*** A rightfol act negligently done is a tort***
Slander in foreign and unintelligible words not understood is not
actionable***
Liability in Use and Management cj Property,
Every person is bound in the management of his own property to
avoid doing damage to others. He is bound so to use his own prop-
erty as not to injure the rights of another. This is the real meaning
of the maxim of the civil law^^'Sicutere tuo ut alienumnonlcedas," ***
— ^"the paraphrase of the golden rule 4)f the Christian." *•* The
value of the maxim has been seriously questioned. Its futility is veiy
strongly put by Earl, J., in Bonomi ▼. Backhouse.*** " 'Sic utere tuo'
is mere verbiage A party may damage the property of another when
the law permits, and he may not when the law prohibits; so that the
maxim can never be applied until the laW is ascertained.*'
Unlawful Conduct.
The distinction between things mala in se and mala prohibita is no
longer generally recognized-*** Not all crimes Or public wrongs are
405 Savill V. Roberts, 1 Ld. Raym. 374. However, no special damage neces-
sary to make out a cause of action la an indictable conspiracy. Arcli. N. P.
450. And see Skinner y. Gunton, 1 Saund. 228; Hood v. Palm, 8 Pa. 237.
*o* Slsk ▼. Crump, 112 Ind. 504, 14 N. B. 381; Wambauglj, Study of Cases,
239; Howe y. Young, 16 Ind. 312; Baltimore & C. Ry. Co. v. Roaney. 42 Md.
117; Pig. Torts. 209. 210.
*08 Broderick V. James, 3 Daly, 481-184; post, p. 482, "Libel and Slander."
4oe Jeffries v. Williams, 5 Exch. 791. Mr. Broom Ims formulated tbe fol-
lowing propositions as to this maxim: (1) It Is, prima facie, competent to
any man to enjoy and deal with his own property as he chooses. (2) He
must however, so enjoy and use it as not to affect Injuriously the rights of
his fellow subjects. (3> Where rights are such as, if exercised, to conflict
with each other, we must consider whether tho exercise of the right claimed
by either party be not restrained by the existence of some duty imposed on
him towards the. other. Whether such duty be or be not imposed must be
determined by reference to abstract rules and principles of law. (4) A man
cannot by his tortious act impose a duty on another. (5) But, lastly, a w^rong-
doer is not necessarily, by i*eason of his being such, disentitled to redress by
action, as against the party who causes him damage; for sometimes the
maxim holds that, ''Injuria non excu.sat Injuriam." Broom, Leg. Max. | 394.
407 Eakln, J., In Little Rock & F. S. Ry. Go. y. Chapman, 39 Ark. 463. 480.
408 36 E. C. L. 653.
*o» Pol. Torts, p. 23. But In Massachusetts the distinction survives. See
102 GKNKRAL NATUHE OF TORTS. [Ch. 1
convertible into torts.**® One doing a lawful act in a manner forbid-
den by law is not absolutely liable for an injury caused to a third
party by the act, nor is the violation of law in doing it conclusive evi-
dence of actionable civil wrongs.*** Therefore the averment in a
declaration that defendant's sliding with boisterous demeanor in a
street, contrary to the city ordinance, and to the damage and com-
mon nuisance of the public, whereby plaintiffs horses became
frightened and ran away and were injured, sets out no cause of ac-
tion."*
34. The wrongfulness of the conduct complained of as
a cause of action in tort is determined —
(a) By the lex loci, and not by the lex fori, and ordi-
narily
(b) By the state of facts existing at the commence-
ment of the action.
Lex Loci not Lex Fori,
The English rule as to the act itself is that, where torts are com-
mitted abroad, recovery can be had in English courts only when the
act is a tort by the law of the country where it was committed,**'
and also by the English law.*** In other words, the act must be
Knowlton, J., In Newcomb v. Boston Protective Department (1888) 146 Biass.
596, 16 N. E. 555.
410 Ante, p. 11.
*ii Bnrbank v. Ross. 72 Me. 494.
*i2 .Jackson v. Castle, 20 Atl. 237.
*i8 PhUlIps V. Eyre, L. R. 6 Q. B. 1; The M. Moxham, 1 Prob. Dlv. 107;
The Halley, L. R. 2 P. O. 193. And see Scott v. Seymour, 1 HurL & a 219;
Phillips y. Eyre, 10 Best & S. lOOi, L. R. 4 Q. B. 225, 6 Q. B. 1; 40 Law J.
Q. B. 28.
*i* As between English and French actions, see Peruvian G. Co. v. Bock-
woldt (1882) 23 Gh. Dlv. 225. As between England and Holland in proceed-
ings, see The Ghrlstiansborg (1885) 10 Prob. Div. 141. As between EngUsh
and American courts, see Hyman v. Helm (1883) 24 Ch. Div. 531; Mutrle v.
Binney (1887) 35 Ch. Div. 614. Where the British owner of a British ship is
proceeded against in an American court by both British and American cargo
owners in respect to a loss of cargo occurring In British waters, the extent of
his liability is determined by the statutes of the United States, and not those
Ch. 1] LAWFUL AND UKLAWH'L CONDUCT. 103
wrongful by both lawa*" In the United States it is generally rec-
ognized that damages recoverable in tort are controlled by the law
of the place where the injury occurred, and, in case of contract,
where the agreement was made.**^ Accordingly, if a servant be in-
jured by the negligence of the master in Iowa, he can sue in Minne-
sota, and his rights of action are determined by the Iowa laws, includ-
ing the statutory law as to damages in case of death by wrongful
act.**' The action may be maintained in another state without proof
of Great Britain. The State of Virginia, 60 Fed. 1018; In re State Steamship
Co., Id.
*i»PoL ToTtB, f 176; Wblttlker v. Forbes, 1 C. P. Div. ol. In Mostyn v.
Pabrigas, Cowp. 161, the governor of Minorca was sued in England for false-
ly imprisoning a native in Minorca. It was hdd that the injury >vas tran-
sitory, not local, in its nature, and that therefcMre the acti<Mi lay. It is im-
lK>rtant however, to distinguish tort itself from the evidence of the tort.
rig. TortH. 18.
*!• Northern Pac. R. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978. For a
short article on the right of plaintiff in England, who has sutferod a wrong
abroad, to the same right and remedy as he would have in the pincc whore
he was injured, see 98 Law T. 104. Watson v. Railroad Co., 91 Ga. 222, 18 S.
£. 306; Helton v. Railway Co., 97 Ala. 275, 12 South. 276; Alabama 6. S. R. Co.
V. Carroll, 97 Ala. 126, 11 South. 803; Torrance v. Third Nat Bank. 70 Hun, 44,
23 N. T. Supp. 1073. But in an American court an action against a British
f^bip is determined by the statutes of the United States and not by those of
Great Britain. The State of Virginia, 60 Fed. 1018. Courts in New York
have been held to have no jurisdiction over an action of trespass on land
situated In other states. American, etc., Co. v. Middleton. 80 N. Y. 406;
C'raigin v. Lovell, 88 N. Y. 258; Dodge v. Colby, 108 N. Y. 445. 15 N. B. 703;
Barrett v. Palmer, 135 N. Y. 336, 31 N. E. 1017. But its supreme court is not
prohibited from entertaining an action for injury to real property in other
states, and may, unless objection is made, hear and determine sucli casps.
Sentenis v. 'Ladew, 140 N. Y. 466, 35 N. E. 650. Where, in an action prosecut-
ed in Ohio by a servant against his master to recover for i)ersonal injury
resulting to him from the negligence of a fellow servant, it appears that the
accident causing the injury occurred in Pennsylvania; that the contract of
employment was made in that state; and that all the stipulate:! services
were to be performed therein,— no recovery can be had if by the laws of
Pennsylvania no right of action arose from the transaction, though the laws
of Ohio would give full relief had the transaction occurred within that state.
Alexander v. Pennsylvania Co., 48 Ohio, 623. 30 N. E. 60.
4" Herrlck v. Minneapolis & St. L. R. Co., 31 Minn. 11, 16 N. W. 413;
Northern Pac. R. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 078. And see
104 GKNERAL NATURE OF TOKTS. [Ch. 1
of lex lo^; the action on tort is a transitory action.*** But one state
is not bound by the rules of practice of another state in which the in-
jury in issue arose, where such rules pertain merely to the weight of
evidence, and not to the cause of action itself, if they are contrary to
the rules of practice or public policy of the state in which the action
is tried/ ^' A cause of action founded upon a statute of one state con-
ferring the right to recover damages for an injury resulting in death
may be enforced in a court of the United States sitting in another
state if it is not inconsistent with statutes or public policy of the
state in which the right of action is sought to be enforced.***
Gause of Action as to Time,
*^very man shall recover according to the right which he hath at
the time of bringing the action." It was accordingly held in a case
of trover by five, one of whom died before verdict, and the others of
whom obtained a vei'dict for the plaintiff, that granting judgment for
the rest was error.*" So far as regards the effect of death of parties,
stone V. Groton B. & M. CJo.. 77 Hun, 99. 28 N. Y. Supp. 446. The law Ls
determined, not by the Dlace where death occurred, but by the plnce where
the injury was received. De llarn v. Mexican Nat Ry. Co.. 8G Tex. 68, 23
S. W. 381. And, generally, see Chandler v. New York, N. H. & n. R. Co.,
159 Mass. 589, 35 N. E. 89; Augusta Ry. Co. v. Glover (Ga.) 18 S. E. 406.
418 For a short review of the interstate relations, so far as they affect the
litigation of statutory damage acts, see 9 Nat. Corp. Rep. 184. And see 35
Cent. Law J. 183, 40 Cent. Law J. 20G. But St. 111. March 27, 1874, providing
that a carrier cannot limit his common-law liability to safely deliver property
received for transportation by any stipulation in the receipt given therefor,
does not affect a contract made in Tennessee for the shipment of cotton to
Massachusetts, though the charter of the carrier was granted in Illinois.
Thomas v. Wabash, St. L. & P. Ry. Co., 63 Fed. 200. And Pub. St Mass.,
making railroad companies liable for death by their wrongful act, and pro-
viding that in case deceased leaves no widow or child the damages shall go
to his next of kin, is a penal statute, and hence an action thereunder cannot
be brought in another state. Adams v. Fitchburg R. Co. (Vt.) 30 Atl. 687, 2
Am. Law Reg. & Rev. (N. S.) 78. See note to this case in Burdict v. Missouri
Pac. Ry. Co., 123 Mo. 221, 27 S. W. 453. And see Walsh v. New York & N.
K. R. Co., 160 Mass. 571, 30 N. E. 584 (inspection of foreign cars). Alabama
G. S. R. Co. V. Fulgham, 87 Ga. 203, 13 S. E. 649.
*i» Johnson v. Chicago & N. W. Ry. Co. (Iowa) 59 N. W. G6.
420 Texas & P. R. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905.
421 Wedgewood v. Bally, T. Raym. 463. "As to the cases where trespass Is
brought against many and one dies, they differ much from this case, because
Ch. 1] I.AWKCL AND UNLAWFUL CONDUiT. 105
however, Tipon an action in tort, the matter is now largely statu-
tory.*" The more important question arises in connection with the
definition of the right ; that is to say, what is plaintiff's cause of ac-
tion. If the injury is a direct invasion of a right, then the cause of
action is complete upon defendant's wrongful conduct. Damages fol-
low thereupon immediately as a necessary consequence.*** Where,
however, the law will not presume damage, and plaintiff's cause of
action is complete only when damages conforming to legal require-
ments have been actually suffered, then the cause of action is com-
plete upon the happening of such damage/** There is no inconsist-
ency between this proposition and the further one that in the same
proceeding a plaintiff can recover for both damages which arose prior
to the commencement of his action and subsequent thereto.**^ New
damage may create new causes of action/** but damages for one cause
of action are indivisible.**^
there the trespass is joint or several at the pleasure of plaintiff.*' Id. Qen-
eraUy, as to effect of release by death of one of several entitled to entire
damages.
4«2 "Death by Wrongful Act," post, p. 330.
438 Mitchell V. CoUiery Co., 10 Q. B. Div. 457, 52 Law J. Q. B. 3»i. But see
City of DaUas v. Young (Tex. Civ. App.) 28 S. W. 1030. Post, p. 335, "Statute
of Limitations."
42« Bonomi v. Backhouse. 36 B. G. L. 653. Mr. Justice Brewer has stated
the principle with great clearness. "Where the original act Itsdf is no inva-
sion of the plaintiff's rights, then there is no cause of action unless such act
has caused damages: and the right of action dates from that time. On the
other hand, • * * where the original act is unlawful, and an invasion of
the plaintiff's right, the cause of action dates from that act, and a new cause
does not arise from new damages resulting therefrom." Kansas Pac. Ry.
Co. V. Mihlman, 17 Kan. 221.
429 It is not so easy to reconcile the general proposition with the right of
plaintiff in conversion to recover as damages the value of the thing convert-
ed into a more valuable form. Post, p. 737, "Conversion," "Remedies," "Com-
pensatory Damages." This rule, however, goes rather to the extent to which
plaintiff may recover, than to his right to recover.
««• "Damages," pout, p. 405.
42T "Damages," post, p. 404,
]06 GENEHAL NATURE OF TORT3. [Ch. 1
GENERAL SUMMARY.
Tort Defined.
Mr. Pollock has summarized much of the substance of the forego-
ing discussion in the following remarkable (and elaborate) defini-
tion of a tort:
"A tort is an act or omission (not being merely the breach of a
duty arising out of a personal relation, or undertaken by contract)
which is related to harm suffered by a determinate person in the
following ways:
"(a) It may be an act which, without lawful justification or ex-
cuse, is intended by the agent to cause harm, and does cause the
harm complained of.
"(b) It may be an act in itself contrary to law, or an omission of
specific legal duty which causes harm not intended by the person
so acting or omitting.
"(c) It may be an act or omission causing harm which the person
so acting or omitting did not intend to cause, but might and should^
with due diligence, have foreseen and prevented.
"(d) It may, in special cases, consist merely in not avoiding or
preventing harm which the party was bound, absolutely or with
limits, to avoid or prevent.
"A special duty of this kind may be (1) absolute; (2) limited to-
answering for harm which is assignable to negligence."***
Elements Essential to Recovery in Tort.
Recovery can be had in tort, it would seem, only when the fol-
lowing elements of a cause of action are shown:
(a) Parties.
(1) Plaintiff not disentitled by his own wrong or consent.
(2) Defendant not personally irresponsible when per-
sonal responsibility is essential, and not within
admitted exceptions or exemptions.
(b) A legal duty recognized by trial court as owed by defendant
to plaintiff.
(c) A violation of that duty in fact by defendant
428 Pol. Torts, p. 19.
Ch. 1] GENERAL SUMMARY. 107
(d) Damage to plaintiff conforming to the standard of the law as
the proximate result, except when, on proof of mere violation of
doty, the law infers damages.
Clamfication -of Torts.
Since the law of torts has reached a stage of development in which
the general principles have been separated from specific torts, a
number of bases of classification have been suggested.^** The clas-
sification which will be substantially — ^not literally — followed in this
lK)ok is that of Mr. Pollock, viz.: *•*
•
42 1 This arrangement of Mr. Pollock conforms to his nnalysla of duties
owed. Ante, p. 91, note 352. It has the great practical advantage of conforming
also to current deeply-imbedded conceptions of rights and wrongs, and of using
the terms which ^e familiar to the profession, constantly written by judges,
and almost Inyarlably employed by digesters and text writers. The objections
to Mr. Bishop's original diylslon of '*noncontract law" Is that it does not con-
form to this standard, and falls to cover quasi torts. And there is enough new
and old law to master, without requiring the feat of acquiring an eccentric order.
This criticism applies equally to the arrangement of Mr. Piggott. Mr. Innes' re-
markable outline is subject to the same comment in perhaps even a greater
degree, but it contains most material contributions to the advancement of the
subject All these systems pay tribute in greater or less degree to the fertile
suggestions of Dr. O. W. Holmes, Jr. His arrangement in 7 Har. L. R. 48-
663 (amplified in the "Common Law*'), was si>eciflcally the basis of Mr. Bige-
low's book on Leading Cases (see preface), and therefore of Bnll's Leading
Cases on Tort
430 The principal departures from tills order arc: (1) The omission of sub-
division 2, in group B,— I. e. interference with patents, copyrights, et sim;
(2) In the discussion of wrongs in group B, under (a) trespass and (b) con-
version; (3) in the consideration of disturbance of easements under group C,
as part of nuisance; and (4) in treating subdivisions 2 and 3 of group C— that
is, negligence and breach of duty to insure safety— «s one topic. The first
cbange is necessitated by prescribed limits of this book. The se<'on(l and
third changes, whatever their theoretical defects may be, have been found by
actual experience to conduce to clearness in the understanding of the average
class. The change as to wrongs to easements avoids the ** tendency of a book
on torts to become a treatise on easements." Moreover, such wrongs par-
take of the nature of both trespass and nuisance, and can consequently be
fuUy understood only when considered in connection with both of these sub-
jects. The third change is made because of the degree to which American
courts have denied the doctrine of Rylands v. Fletcher, L. R. 1 Exch. 2Gr>, and
legislatures have modified it
i08 e£N£RAL NATUBfi OF TOKTS. [ph. 1
GROUP A.
Personal Wromjs.
1. Wrongs affecting safety and freedom of the person:
Assault, battery, false imprisonment.
2. Wrongs affecting personal relations in the family:
Seduction, enticing away of servants,
ii. Wrongs affecting reputation:
Blander and libel.
4. Wrongs affecting estate generally:
Deceit, slander of title.
Malicious prosecution, conspiracy.
GROUP B.
Wrongs to Property.
1. Trespass: (a) to land.
(b) to goods.
Gonyersion and unnamed wrongs ejusdem generis.
Disturbance of easements, &c.
GROUP 0.
Wrongs to Persons y Estate, and Property Oenerally.
1. Nuisance.
2. Negligence.
5. Breach of absolute duties specially attached to the occupation
of fixed property, to the ownership and custody of dangerous
things, and to the exercise of certain public callings. This
kind of liability results, as will be seen hereafter, partly from
ancient rules of the common law of which the origin is still
doubtful, partly from the modern development of the law of
negligence.
Ch. 2] VARIATIONS BASED ON PRIVILEGE OV ACTOB. 109^
OHAPTEB II.
VARIATIONS IN THE NORMAL RIGHT TO RFBS.
35. Variations Baaed on Privilege of Actor, or General Exemption.
3a Public Acta-Acts of State.
37-38. Conduct of Legislators.
39-41. Conduct of Judicial Officers.
42-43. Conduct of Executive Officers.
44-46. Liability for Wrongs of Subordinates.
46. Private Acts.
47. Exercise of Statutory Rights.
48. Exercise of Ordinary Rights.
49. Exercise of Disciplinary Powers.
50. Rights of Necessity.
51. Right of Private Defense.
52. Variations Based on Status.
53. Insane Persons.
54-65. Infants.
56. Drunkards.
67. C<Mivicts~Alien Enemiee.
58. Private Corporations.
59-60. Municipal and Quasi Municipal Corporations.
61. Corporations, not Municipal, Engaged in Public Works.
62. Variations Based on Conduct of Plaintiff.
63-^. Wrongdoing by Plaintiff.
65. Consent.
VARIATIONS BASED OK F^EUVILEaE OF ACTOR, OR OEN*
ERAIi EXEMPTION.
36. Under this head will be considered:
(a) Public acts, including
(1) Acts of state;
(2) Conduct of legislators;
(3) Conduct of judicial and quasi Judicial officers;
(4) Conduct of executive officers.
(b) Private acts, authorized
(1) By statute;
(2) By common law.
110 VAKIATI0N3 IX THE ^*OHMAL RIGHT TO SUK. [Ch. 2
PUBLIC ACTS— ACTS OF STATE.
36. The state, except by its own clearly-manifested con-
senty is not liable to individuals for injuries it may
cause. This exemption applies alike to
(a) The TTnited States government,
(b) The governments of the various states, and
(c) To foreign sovereignties.
Exemption in General*
The exemption of the state from liability for all torts is based
upon its sovereign character. The duties the state performs are
all public, and it cannot be held liable for any imperfections in their
performance. Its exemption does not rest on the ground that there
are no means provided for remedy against the state, but that there
is no obligation on the part of the state for which an action lies.^
'*The king can do no wrong." * **The government," said Mr. Justice
Story, "does not undertake to guaranty to any person the fidelity of
the officers or agents whom it employs, since that would involve it,
in all its operations, in endless embarrassments, difficulties, and loss-
es, which would be subversive of the public interest." ^ Where the
sovereign assumes the character of a trader, it has beed held that
the privilege of sovereignty is waived, and that legal liability fol-
lows.* The distinction, however, does not seem to be sustained by
the better legal opinion. The government is not ordinarily bound
in law, however it may be in morals, by an estoppel." The exemp-
1 Murdock Parlor-Grate Co. v. Ck>m., 152 Mass. 2S-31, 24 N. E. 854.
2 Bl. Comm. 246. 4 Bl. Comm. 83. But see Burou v. Dcnman, 2 Ex. 167.
Elaborate discussion and dissentini? opinion in U. S. v. Lee, 106 IT. S. 196,
1 Sup. Ct. 240; Laugford v. U. S., 101 U. S. 341.
s Beers v. State. 20 How. 527; Gibbons v. U. S., 8 Wall. 209; Galbes v.
Girard, 40 Fed. 500; Dox v. Postmaster General, 1 Pet. 318: U. S. v. Kirk-
patrlck, 9 Wheat 720; Whiteside v. U. S., 93 U. S. 247-251; Hart v. U. S.,
95 U. S. 310-318; Moffat v. U. S., 112 U. S. 24-31, 5 Sup. Ct. 10.
* The Charkieh, L. R. 4 Adm. ^ Ecc. 59, (Here the khedive sent a Tessc;!
to trade. He was held to have waived the privilege which attached to it as
the property of a sovereign. And see The Heinrich Bjorn, L. R. 10 O. P. 40.)
Thomas v. Queen, L. R. 10 Q. B. 31; Chisholm v. Georgia, 2 Dall. 419-437.
» U. S. V. Clarke, 8 Pet. 43(;; Lake Superior Ship-Canal. Railway & Iron
^i»- -] PUBLIC ACTS. Ill
tion, however, applies only to suits against the state. So far as
<'oncern8 torts committed in the performance of ministerial duties,
and generally as to acts injurious to the persons and property of
others,* it is no defense that private Individuals who are parties de-
fendant acted as officers of the government; nor does this defeat
jurisdiction.^
Cofutnt to Lutbility.
The state may, however, consent to be impleadi^d in court, and to
be held liable In damages for tortious conduct, by unqualified ap-
pearance in a judicial proceeding brought against it, or by legisla-
tive act or resolution.* 8uch consent is limited to claims and classes
of claims within the language of the statute manifesting it expressly,
or by clear implication.* Thus, merely giving a court jurisdiction
of all charges against a state, whether in law or equity, does not ere-
Co. T. Cunninsbam, 44 Fed. 81i)-83a; Curran v. Arkansas, 15 How. 304^300;
The John ShilUto Company v. McCliinK, 2 C. C. A. r»20. 51 Fed. 868-875; Tho
Davis. 10 WalL 15; Carr v. II. S., DS U. S. 433; Com. v. Andrews, 3 Pick.
224, 225; Plngree v. Coffin. 12 Gray. 288-321; Briggs v. IJghtboats, 11 Allen.
157, 170, 17C; Troy & G. R. R. v. Com.. 127 Mass. 43.
• Tbns, trespass may lie against the officers of the United States army.
Mitchell V. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 204. So an
officer of the United States is l!able for Intrliigement of a patent used un-
der government order. Head v. Porter, 48 Fed. 481. And. generally, sec
In re Ayers, 123 U. S. 443. 8 Sup. Ct liA; McGahey v. Virginia, 135 U. S.
062, 10 Sup. Ct. 972; (irate v. Teague. 81 Me. 559. 18 Atl. 289; Benuer v.
Atlantic Predging Co., 134 N. Y. 15G, M N. E. 328; post, p. 125, "Executive
Acta."
T Opinion of Mr. Justice Miller in Cunningham v. Macon & B. R. Co., 109
U. S. 446, 3 Sup. Ct 292, 009, as to the three classes of Judicial proceedings
which affect a state, but do not constitute a suit against it. As to what Is
and what Is not a suit against the state, see 30 Am. Law Reg. 1, 3.
• Curran v. Arkansas. 15 How. IMH, 308; Hartman v. Greenhow, 102 U. S.
• 672; Polndexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903. 902; Cx)lman v.
State, 134 N. Y. 561. 31 N. E. 902; State v. Torinus. 2G Minn. 1. 49 N. W.
259. While a voluntary general appearance is sufficient (Clark v. Barnard,
108 U. S. 436, 2 Sup. Ct 878), a special appearance is not (Georgia v. Jessup.
106 U. S. 458, 1 Sup. Ct 363).
» Lewis V. State, 96 N. Y. 71-74; Slpple v. State, 99 N. Y. 284, 1 N. B. 892.
and 3 N. £. 657; Hyatt v. State, 121 N. Y. 665, 24 N. E. 1093; Locke v. State,
140 N. Y. 480, 35 N. E. 1076; Troy & G. R. 0>. v. Com., 127 Mass. 43, 46;
CoultervlUe & Y. Turnpike Co. v. State. IW Cal. 321, 37 Pac. 1035.
112 VARrATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
ate an obligation to pay damages resulting from torts of officers or
agents in the performance of their duties.**^ The consent of the
state may be withdrawn without impairing the obligation of a con-
tracts^
Exemption of the United Slates.
The courts of justice of the United States "are established, not only
to decide upon controverted rights of the citizens, as against each
other, but also upon rights in controversy between them and the
government" *^ The United States has not, however, consented to
be sued generally for torts committed by its officers; ^* but special
acts have referred certain tort cases to federal courts and to the
court of claims.** Thus, the government of the nation may be held
liable in trespass for damages to the extent of the value of occu-
pancy of land by it**
Exemption of the Various States,
Under the original constitution, the various states composing the
Union could be brought before the national courts by citizens of
other states.** This was changed by the eleventh amendment
10 Murdock Parlor Grate Co. v. CJom., 152 Mass. 28, 33, 24 N. B. 854; Stone
V. State, 138 N. Y. 124, 130, 33 N. E. 733. ;
11 Beers v. Arkansas, 20 How. 527; Railroad Co. v. Alabama, 101 U. S.
832; In re Ayers, 123 U. S. 443-505, 8 Sup. Ct 164.
la U. S. V. Lee, 106 U. S. 396, 220, 1 Sup. Ct. 240.
18 Gibbons v. U. S., 8 Wall. 269; HiU v. U. S.. 149 U. S. 593, 13 Sup. Ct.
1011; German Bank of Memphis v. U. S., 148 U. S. 573, 13 Sup. Ct. 702. The
court of claims has no jurisdiction of claims against the tcoyerument for
torts. Schllllnger v. U. S.. 15 Sup. Ct 85. Vide Act March 3, 1887, c 359,
§ 2; 1 Supp. Rev. St. U. S. 559.
i*Act Feb. 24, 1855, c. 122 (10 Stat. 612); Act March 3, 1863. c. 92 (12
Stat. 765): Act March 17, 1866. c. 19 (14 Stat. 9). As to concurrent jurisdic-
tion of United States district and circuit courts, see Act March 3, 1887, c.
359, S 2 (Supp. Rev. St. U. S. r>r>9).
IB Johnson's Case. 2 Ct. CI. 391; Pope v. U. S., 26 Ct. CI. 11. Bt vide
Roettinger v. U. S., 26 Ct. CI. 391. As to Indian depreilatlon claims: Hyne
V. U. S., 27 Ct. CI. 113; Mitchell v. U. S., Id. 316; Falk v. U. S., Id. 321.
Action by a state against the United States. State of New York v. U. S.,
26 Ct. CI. 467. So as to collision resulting from negligence charged in the
management of public vessels. Sampson v. U. S., 12 Ct. CL 480; Walton v.
U. S.. 24 Ct. CI. 372.
i«Chi8holm v. Georgia. 2 D:ill. 419.
Ch. 2] PUBLIC ACTS. 113
So that at the present time no state can be sued in any court, with-
out its own consent, except by the United States, a sister state, or
a foreign government." Each state determines, accordingly, the ex-
tent to which it may be sued in its own courts,^* and, in the absence
of statutory authority extending the jurisdiction of courts to the
determination of claims against the state, an appeal to the legisla-
ture is the only remedy of the citizen against it.*" There is an in-
creasing tendency to recognize that it is difficult to see on what
Aolid foundation of principle the state's exemption of liability from
suit rests.*®
Exemption of Foreign Powers,
The same exemption applies to foreign powers. ''As a conse-
quence of the absolute independence of every sovereign authority,
and of the international comity which induces every sovereign state
to respect the independence of every other sovereign state, each and
every one declines to exercise, by means of any of its courts, any
of its territorial jurisdiction over the person of any sovereign or
17 Hans v. Ixiuitsinna, 134 U. S. 1, 10 Sup. Ct. 504; North Carolina v.
Temple, 134 IJ. S. 22, 10 Sup. Ct 500, and 11 Sup. Ct. 009; Pennoyer v. Me-
Connaughy, 140 U. S. 1. Et cf. In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785;
U. S. V. Texas. 143 U. S. C21. 12 Sup. Ct. 488. Virginia v. Tennessee, 148
U. S. 503, 13 Sup. Ct. 728. But, although a federal court has no jurisdiction
of a suit against a state olUcer to coerce performance of a contract by the
state. It ma3^ take Jurisdiction of a suit against such an officer to enjoin a
threatened injury to a vested right under authority of an unconstitutional
statute of the state. Prefident, etc.; of Yale College v. Sanger, 62 Fed. 177.
Kt vide 32 Am. Law Reg. (N. S.) 997-1001, containing a valuable article by
George A. King, Esq.
'8 Treasurer v. Cleary, 3 Rich (S. C.) 372; Coleman v. State, 134 N. Y.
564, 31 N. E. 902 (trespass of public contractor, consent of state); Hosuor
V. De Young, 1 Tex. 764; Willlarasport & Almira R. Co. v. Com., 33 Pa. St.
288,291.
i» Stone V. State, 138 N. Y. 124, .33 N. E. 733. In the absence of statute, a
Ktate is not liable for the negligence of its oflBcers in the discharge of their
ordinary official duties. Chapman v. State, 104 Cal. t;9<l, 38 Pac. 457.
20 U. S. V. Lee. 100 U. S. 196-200, 1 Sup. Ct. 240. This will appear in
the constitutions of Virginia (see Iligginbotham v. Com., 25 Grat. 627, (k57);
of Massachusetts, as to actions ex contractu (see Sayre v. State, 128 X. Y.
622, 27 N. E. 1079; SIpple v. State. 99 N. Y. 284. 1 N. E. 892. and 3 N. E.
657; Splittorf v. State, 108 N. Y. 205, 15 N. E. 322); (;f Indiana, Idaho,
Nevada; West Virginia, North Carolina. North Dakota, Mississippi, California.
LAW OF TOHT:
114 VARIATIONS IN THB NORMAL RIGHT TO SUE. [Ch. 2
embassador of any other state, or over the public property of any
state which is destined to its public use, or over the property of any
embassador, though such sovereign, embassador, or property be
within its territory, and therefore, but for the common agreement,
subject to its jurisdiction." *^
SAME— CONDUCT OP LEGISIiATORS.
37. Members of the legislature are exempt from liability
for anything said or done by them, as representa-
tives, in the functions of their office, whether regu-
lar or irregular, and against the rule of the leeisla-
tive bodies.
38. The agents or servants of the legislature, however,
may be held personally responsible for conduct
pursuant to the direction of the legislature, when
such authority is not legal.
Freedom of speech and action is commonly derived from consti-
tutional provisions, or bills of rights. Thus, in the constitution of
Massachusetts of 1780, the twenty-first article of the bill of rights
provides that "the freedom of deliberation, speech and debate, in
either house of the legislature, is so essential to the rights of the
people that it can not be the foundation of any accusation, prosecu-
ti(m, action or complaint in any other court or place whatsoever.''
The privilege is said to be rather the privilege of an individual mem-
ber than of the house, as an organized body. The members are
therefore entitled to it, even as against the will of the house. It
is immaterial whether or not the conduct in question is according
to the rules of the house. The representatives are not liable for
words uttered in tlie execution of their official duties, although spo-
ken maliciously. The exemption applies to a member while sitting
on a committee in a lobby or in a convention of tlie two houses out
21 The Parlement Beige, 5 Prob. Dlv. 214; Duke of Brunswick v. King
of Hanover, G Beav. 1. 2 H. L. Cas. 1; Manning v. State of Nicaragua, 14
How. Prac. (N. Y.) 517; U. S. v. Trumbull. 48 Fed. M; Foreign consuls:
The Marie, 49 Fed. 280; Williams v. The Welhavon, .>"> Fed. 80.
^il. 2] PUBLIC ACTS. 115
of the representative chamber." In Stockdale v. Hansard,'* how-
erer, it was held to be no defense in law to an action for publishing
a libel that the defamatory nuitter was a part of a document which
was, by the order of the house of commons, laid before the house,
and which thereupon became ])art of the proceedings of the house,
and was afterwards, by its authority, published by the defendant.
Coleridge, J., considers the judgment pronounced as not invading the
privilege of the citizens, but that **by setting them on the founda-
tion of reason, and limiting them by the fences of the law, we do
all that in us lies to secure them fr6m invasion, and root them in
th(^ affection of the people." It is clear that under no circumstances
wUl the courts inquire into the motives which govern members of the
legislature in the enactment of a law, and that the parties com-
plaining, to have any standing in court, must have suffered an injury
apart from that experienced by the general community.**
While, on principles peculiar to itself, the English parliament has
power to punish for contempt, the house of representatives of the
United States has not.*' Accordingly, where the house of repre-
ss Goffln y. Coffin, 4 Mass. 1; State v. Burnham, 9 N. H. 34; Perkins v.
Mitchell, 31 Barb. 4<jl^riS. An article as to the exemption of members of
the legislature from scryice of civil process, with a special reference to the
recent case of Rhodes v. Walsh, 55 Minn. 542, G7 N. W. 212, in which it
was held that tinder a;:ticle 4 of section 8 of the constitution of the state
of Minnesota, providing as follows. "The members of each house shaU, in all
cases except treason, felony, and breach of the peace, be privileged from
arrest during the session of ttieir respective houses, and in going to and
returning from the same,*' a member of the legislature is not privileged from
the service upon him of a summons in a civil action during a session of said
legislature,— will be found in 10 N. Y. Law J. 1106. See briefs of counsel in
Rhodes v. Walsh, supra. Fui-ther, see Cooley, Const Lim. (Uth Ed.) IGO,
and cases cited.
53 (1839) 9 Adol. & E. 1.
54 Wright V. Defrees, 8 Ind. 298; Bish. Noncont. Law, { 777, note 2, col-
lecting cases.
55 A court commissioner has no power to punish for contempt. In re Mason,
43 Fed. 510; nor a common council, T\hitcomb's Case, 120 Mass. IIS.
Emery's Case. 107 Mass. 172; Burnham v. Morrlssey, 14 Gray (Mass.) 226;
Thompson's Case, 122 Mass. 428. As to judicial power over legislature. In
re Pacific Ry. Commission, 32 Fed. 241; In re Investigating Commission,
16 R. I. 751, 753, 11 Atl. 120.
116 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Cll. 2
sentatives directed a committee to examine into the history and
character of a real-estate pool in connection with the affairs of J.
Cooke & Co., and its sergeant at arms, in accordance with instruc-
tions of the house, imprisoned the plaintiff for contempt as a wit-
ness, the oi-der of the house afforded the sergeant at arms no pro-
tection in an action by the plaintiff for false imprisonment The
members of congress, however, were exempt from liability, because
of the provision of the constitution that for any speech or debate
in either house the members shall not be questioned in any other
place.**
SAME— CONDUCT OF JUDICIAL OFFICERS.
39. No judge can be held personally liable to any one, in
a civil action, for conduct, even if malicious and
corrupt, occurring in the exercise of jurisdictioii
clearly conferred.
EXCEPTION — The exemption does not apply to conduct
occurring in the performance of ministerial, as dis-
guished from judicial, duty, and perhaps not ta
quasi judicial oflKcers, when they act maliciously
and corruptly. The duty is ministerial when the
law governing its discharge prescribes and defines
the time, mode, and occasion of its performance
with such certainty that nothing remains for judg*
ment or discretion.
^^ Jurisdiction^^ Defined*
Miller, J., in Cooper v. Reynolds,^^ said: 'It is as easy to give a
general and comprehensive definition of the word * jurisdiction' as it
is difficult to determine, in special cases, the precise conditions on
which the right to exercise it depends. This right has reference to
2« Kilbourn v. Thompson, 103 U. S. 168, overruling and rejecting some of
the reasoning in Anderson v. Dunn, 6 Wheat. 204. Contra, Canfleld v.
Gresham, 82 Tex. 10, 17 S. W. 390. Compare Burdett v. Abbott, 14 East. 1;
Thompson's Case, 8 IIow. St. Tr. 1; Beaumont v. Barrett, 1 Moore, P. C. 59.
2T 10 Wall. 308-31C; 19 Cent. Law J. 102-104; 25 Cent. Law J. 435.
Ch. 2] PUBLIC ACTS. 117
the i)ower of the court oyer the parties, over the subject-matter, over
the res or property in contest, and to the authority of the court to
render the judgment or decree which it assumes to make. By 'ju-
risdiction over subject-matter* is meant the nature of the cause of
action and of the relief sought; and this is conferred by the sov-
ereign authority which organizes the court, and is to be sought for
in the general nature of its powers, or in authority specially con-
ferred. Jurisdiction of the person is obtained by the service of
process, or by the voluntary appearance of the party in the progress
of the cause. Jurisdiction of the res is obtained by a seizure under
process of the court, whereby it is held to abide such order as the
court may make concerning it. The power to render the decree or
judgment which the court may undertake to make in the particular
cause depends upon the nature and extt^nt of the authority vested
in it by law in regard to the subject-matter of the cause."
Conduct within Jurisdiction,
The exemption of judicial officers from liability in tort for con-
duct within jurisdiction clearly conferred is well illustrated in
Stewart v. Cooley.'*® Here a judge was charged with having con-
spired with the clerk of his court, willfully and maliciously, to
cause the plaintiff to be charged with, and arrested and imprisoned
for, the crime of perjurj'. A demurrer to complaint was sustained,
2 8 23 Minn. 347. And see Fray v. Blackburn, 3 Best & S. 576; Kemp
V. NevUle, 10 C. B. (N. S.) 523; Floyd v. Barker, 12 Coke, 23-25; Turpen
V. Booth, 50 Cal. C5, 09; Weaver v. Deveudorf, 3 Denio, 114, 120; Reid v.
Hood, 2 Nott & McC. (S. C.) 1G8; Stone v. Graves, 8 Mo. 148. The classifica-
tion of officers Into Judicial, legislative, and executive is not strictly accu-
rate, however convenient for present purposes. However distinct. the de-
partments of /government are maintained (Lauj^enberg v. Decker, 131 Ind. 478),
an officer is apparently a representative of more than one department, and
of no one department distinctly or exclusively (Cooley, Torts, c. 13, "Classifi-
cation"). Mr. Brlce (1 Brice, Am. Com., 3d Ed., c. 21, p. 215) says that this
separation of the legislative, executive, . and judicial departments is "the
fundamental characteristic of the American national government. ♦ ♦ ♦
In Europe, as well as in America, men are accustomed to talk of legislation
and administration as distinct. But a consideration of their nature will
show that it is not cany to separate these two departments in theory by
analysis, and still lej?s ea«y to keep them apart in practice."
118 VARIATIONS IN THK NORMAL RIGHT TO SUE. [Ch. 2
and the judge was held to be exempt. Even if, in the exercise of such
judicial functions, the judge acts, not only wrongfully, but with a
corrupt motive, he is not civilly liable.^® Thus, it has been held that
an action will not lie against a justice of the peace for issuing a writ
in favor of a third person upon a false claim against the plaintiff,
and secreting and destroying the writ after j^orvice thereof, and
refusing to enter it, or to allow the defendant therein his costs.'**
Quasi judicial public officers, as township trustees, arbitrators, etc.,"
are not liable in damages for erroneous interpretation or application
of the law.^' If they act fraudulently or maliciously, the exemp-
tion has been held to end. Thus, members of a school board may be
held liable for maliciously dismissing a teacher, but not for such
acts as the expulsion of children in good faith.^* But municipal
officers, acting in a quasi judicial capacity in determining the lowest
legal bidder, are not responsible to an injured bidder, however wrong
their decision, or malicious the motive which produced it.'* An
attorney for a party to an action referred by- the court is liable to
the adverse party for conspiracy with one of the arbitrators to ob-
20 Irion V. Lewis, 56 Ala. 190; Kress v. State, 65 Ind. 106. But see Knell
V. Briscoe, 49 Md. 414; Hitch v. Lambright, 66 Ga. 228; Gai-fleld v. Douglass,
22 111. 100.
80 Raymond v. BoUes, 11 Cusb. 315, citing Elder v. Bomls, 2 Mete. 509;
Pratt y. Gardner, 2 Cusb. 63; Chickering v. Robinson, 3 Gush. 543. And see
Weaver v. Devendorf, 3 Denio, 117; Stone v. Graves, 8 Mo. 148; Morrison
V. McDonald, 21 Me. 550; State v. Copp, 15 N. H. 212; Taylor v. Doremus,
16 N. J. Law, 473; Morton v. Crane, 39 Micb. 520; Lenox v. Grant, 8 Mo.
254; Way v. Townsend, 4 Allen, 114; Bailey v. Wiggins, 5 Har. (Del.) 462;
Gordon v. Farrar, 2 Doug. (Micb.) 411; Strickfnden v. Zlpprick, 49 lU. 286;
Gregory v. Brooks, 37 Conn. 365.
32 Stevenson v. Watson, 4 C. P. Dlv. 148; Papim v. Rose, L. R. 7 C. P. 525;
Jones V. Brown, 54 lowii, 74, 6 N. W. 140. And see Goul<^ v. Hammond,
1 McAH. (U. S. Cir. Ct.) 235; Muscatine, etc., Ry. v. Horton, 38 Iowa, 33;
McDanlel v. Tebbetts, 60 N. H. 555; Wall v. Trumbull, 16 Micb. 228.
83 state V. Hastings, 37 Neb. 96, 55 N. W. 774.
84 Burton v. Fulton, 49 Pa. St 151; Donaboe v. Ricbards, 38 Me. 379;
Stewart v. Southard, 17 Obio, 402; BUUngis v. Lafforty, 31 111. 318; Reed
V. Conway, 20 Mo. 22.
3B East River Gasligbt Co. v. Donnelly, 93 N. Y. 557, distinguisbed; People
V. Gleason, 121 N. Y. 631, 25 N. E. 4. approved; Erving v. City of New York,
131 N. Y. 133, 29 N. E. 1101. Cf. Ward v. Freeman, 2 Ir. Com. Law, 460.
Ch. 2] PUBLIC Acrb. 110
tain an unjust award in favor of hiR client, although the arbitrator
is not liable.**
Jiuiicial Officers de Jure or de Facto.
To entitle a person to claim exemption a» a judicial oflScer, it
is not necessary that he should be such officer de jure. It is suffi-
cient if he be de facto. The power to appoint such an officer, how-
ever, may not be delegated by the legislature; for example, to attor-
neys of record by means of stipulation.*^ Even a judge properly
appointed, as to matter in which he is personally interested, may be
disqualified so that he can have no jurisdiction, and his acts will be
void. Thus, the acts of a judge of probate in the settlement of an
estate in which he is interested as an executor are void.*' The
exemption applies, when the act is within the jurisdiction, alike to
the highest judges in the land,** and to the most veritable Dog-
berry.*° Members of the naval and military court-martials are not
liable for their conduct while acting in such capacity.*^ It appears
that coroners *^ and mayors of cities *^ are judges, in this sense.
3« Hoosac Tunnel Co. v. O'Brien, 137 MnnH. 424. Xi»r a coroner: Thomas
T. Churton, 2 Best & S. 475.
37 Van Slyke v. Trempealeau, etc., Co.. 30 Wis. 31K>, 392; Attorney Gen-
eral V. McDonald, 3 Wis. 703, 705; Gough v. Dorsey, 27 Wis. 119; Cohen
V. Hoff, 3 Brev. (S. C.) 500; In re Burke, 76 Wis. 357, 45 N. W. 24; Baker
V. State. 80 WMs. 416, 50 N. W. 518.
3« Be<leU V. BaUey, 58 N. H. 63; Hall v. Thayer, 105 Mass. 219; Stock-
well V. Township, 22 Mich. 341. But see In re Van Wagonen's WUl, 09 Hun,
3G5, 23 N. Y. Supp. 636.
3» Bradley v. Fisher, 13 Wall. 335; Dicas v. I^rd Brougham, 6 Car. & P.
249; Fray v. Blackburn, 3 Best & S. 576; iJinge v. Benedict, 73 X. Y. 12;
Londegan t. Hammer, 30 Iowa, 508; Booth v. Kurrus, 55 N. J. Law, 370, 26
Atl. 1013; Banister v. Wakeman, 64 Vt. 203, 23 Atl. 585 (collecting cases).
40 White V. Morse, 139 Mass. 162, 29 N. E. 539; In re Cooper. 32 Vt. 253;
Weaver v. Devendorf, 3 Denio, 117 (collecting cases); Marks v. Sullivan, 9
Utah, 12, 33 Tac. 224. Judge municipal court: Rudd v. Darling, 64 Vt 456,
25 Atl. 479. City recorder: Brunner v. Downs, 63 Ilnn, 626, 17 N. Y. Supp.
633.
*i Dawkins v. Lord Rokeby, L. R. 7 Ind. App. 744; Dawkins v. Prince Ed-
ward of Saz^W^imar, L. R. 1 Q. B. Div. 499.
42 Gamett v. Ferrand, 6 Bam. & C. 619.
43Boutte V. Emmer, 43 La. Ann. 980. 9 South. 021; State v. Wolever, 127
Ind. 306. 318. 26 N. E. 762.
120 VARIATIONS IN THE ^'ORMAL RIGHT TO SUE. [Ch. 2
The exemption extends to grand and petit jurors in discharge of
their duties,** and generally to all officers exercising judicial func-
tions.**
Beason,
The reason for exemption has been very clearly stated by Mr.
Justice Brewer: ** "Nothing is more important, in any country,
than an independent judiciary; and nowhere is it more important,
so absolutely essential, as under a popular government No man
can be a good judge who does not feel perfectly free to follow the
dictates of his own judgment, wheresoever it may lead him, and, in
a country where popular clamor is apt to sway the multitude, noth-
ing is more important than that the judges should be kept as inde-
pendent as possible; and it is the universal experience, and the
Hingle voice of the law books, that one thing essential to their inde-
4* Hunter v. Mathis, 40 Ind. 356; Turpen v. Booth, 56 Cal. 65.
4 5 Weaver v. Devendorf. 3 Denio, 117; State Auditor v. Atchison, T. &
S. F. R. Co.. 0 Kan. 500; Van Stet-ubergh v. Bigelow. 3 Wend. 42; Jones
V. Brown. 54 Iowa. 74, C N. W. 140; Hunter v. Matlils, 40 Ind. 356; Gould
V. Hammond, 1 McAll. 235, Fed. Cas. No. 5,G38; Iloggatt v. Bigley, 6 Humph.
(Tenn.) 236; TuiT>en v. Bootli, 56 Cal. 05; Harrington v. Commissioners, 2
McCord (S. C.) 400; Freeman v. Cornwall, 10 Johns. 470; Lillenthal v. Camp-
bell, 22 IjSI. Ann. 600; McDanlel v. Tebbetts, 00 N. H. 497; Gregory v.
Brooks, 37 Conn. 305; Edwards v. Ferguson, 73 Mo. 686; Billings v. Laf-
ferty. 31 111. 318; Donalioe v. Richards, 38 Me. 379; Shoemaker v. Nesblt,
2 Rawle (Pa.) 201; Wall v. Trumbull, 10 Mich. 228; Wasson v. Mitchell. 18
Iowa, 153; Pike v. Megoun, 44 Mo. 491; Walker v. Hallock, 32 Ind. 239;
Downing v. McFadden, 18 Pa. St. 334; State v. Hastings, 37 Neb. 90, 55
N. W. 774; Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923.
*e Cooke v. Bangs, 31 Fed. 640, 041. The reason assigned by Mr. Justice
Field hi Bradley v. Fisher, 90 U. S. 335-347, is constantly quoted hi this
connection. For it is a general principle, of the highest imiK)rtance to the
proper administration of Justice, tbat a Judicial officer, in exercising the
authority Invested in him, shall be free to act upon his own convictions,
without apprehension of personal consequences to himself. Liability to an-
swer to any one who might feel himself aggrieved by the act of the Judge
would be inconsistent with the possession of his freedom, and would de-
stroy that independence without which no Judiciary can be either respectable
or useful. As observed by a distinguished English Judge, it would establish
the weakness of Judicial authority in a degrading responsibility. Taaffe v.
Downs, note to 3 Moore, P. C. 41. Judge Cooley discusses the basis of the
immunity at considerable length. Cooley, Torts, pp. 403-410.
Ch. 2] PUBUC ACTS. 121
pendence is that they should not be exposed to a private action for
damages for anything they may do as judgea"
40. No judge of the courts of record, having supreme or
general jurisdiction, can be held liable, even for
corrupt and malicious conduct, with respect to
matters which are in excess of, but not in the
complete absence of, jurisdiction. Under such cir-
cumstances, however, a judge of an inferior court,
not of record, has been held personally liable.
A leading case illustrative of this principle is Bradley v. Fisher,*'
which grew out of circumstances connected with the trial of John
A. Surratt for the murder of Abraham Lincoln. In that trial, dur-
ing a recess, Bradley, one of the attorneys, insulted Fisher, the pre-
siding judge, and threatened him with chastisement. Thereupon,
the judge entered an order striking Bradley's name from the roll of
attorneys practicing in the court.^ In the subsequent proceeding
brought to test the validity of this act of the judge, the court' held
that while, before a lawyer should be disbarred, he was entitled to
notice, still judges of courts of record, of supreme or general juris-
diction, are not liable to civil action for their judicial acts, even
when such acts are in excess of their jurisdiction, and are alleged
to have been done fraudulently and corruptly. The judge was ac-
<-ordingly not held to be liable.*' Tliis seems to have settled the
law on this point, despite the contrary intimation in Randall v.
Brigham.*"
Mr. Justice Davis, with whom concurred Mr. Justice Clifford, dis-
sented as to the rule laid down by the majority of the court, that a
judge is exempt from liability where his proceeding was not only in
excess of jurisdiction, but was also malicious and corrupt
4T 13 Wall. 335, 367. State v. Wolever, 127 Ind. 300, 20 N. E. 7G2; Pickett
Y. Wallace, 57 Cal. 555; Ackerley v. Parkinson, 3 Maule & S. 411. Ck)mpare
Thompson v. Whipple. 54 Ark. 203, 15 8. W. G(M.
*» As to the power of the courts to disbar, see Kx iiarte Wall, 107 U. S.
265, 2 Sup. Ct. 509; JelTeries v. Laurie, 27 Fed. 108; Ex parte Robinson,
19 Wall. 505.
*» 7 Wall, 523.
122 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
As to courts of inferior jurisdiction, not only must the jurisdiction
be made to appear^'** but it has been held that they are liable for
acting maliciously and fraudulently in matters in excess of their
jurisdiction.*^^ There seems to have been no express adjudication in
the supreme court of the United States on this point. It is, how-
ever, insisted with much force that in matters of this kind a justice
of the peace should stand on the same footing with otlier courts.
While, on the one hand, if the justice resolves all doubt against his
jurisdiction, he can always be set right by the court having appellate
authority over him, and he can have no occasion to take risks so long
as his decision is subject to review,''^ on the other hand, the principle
on which the exemption is maintained is founded in the interest of
the public, and is established in ord^r to secure independence in the
judiciary. Tliis principle is as applicable to an inferior judge as to
one of superior and general jurisdiction.*' Moreover, judges of
inferior courts stand nearer to the people than judges of the su-
preme courts, and therefore it is more important that the exemption
should be allowed, so that they may be accorded that immunity from
suit which will lead to independence of action. Nor is there any
danger that this exemption will render the judges superior to the
law, or cause them to feel that they are above the law, and not
amenable to it. This is ample protection and guaranty against
misconduct on the part of a judicial oflScer, be he high or low.** The
tendency of the courts is to extend to judges of inferior courts the
same immunity from liability to a civil action as is given to judges
of courts of record; and this is specially true where the error of the
60 Wlckes V. Clutterbuck, 2 Bing. 483; Hill v. Pride. 4 Cal. 107; Newman
V. Earl of Hardwlcke. 8 Adol. & E. 123.
51 Rutherford v. Holmes, 66 N. Y. 368; Stearns v. Miller, 25 Vt 20; Vaughn
V. Congdon, 56 Vt. 111. But note dissension in opinions: De Courcey v.
Cox, 94 Cal. GG5, 30 Pac. 95 (cases collected page 606, 94 Cal., and page 95,
30 Pac); Truesdell v. Combs, 33 Ohio St. 186; Bigelow v. Stearns, 19 Johns.
38; Piper y. Pearson, 2 Gray (Mass.) 120.
52 Cooley, Torts, 420.
OS AUec V. Reece. 39 Fed. 341.
6* Brewer, J., In Cooke v. Bangs, 31 Fed. 040, 642, 644; Blsh. Noncont Law,
783. And see Scott v. Stansfield, L. U. 3 Exch. 220; Austin v. Vrooman,
128 N. Y. 229, 28 N. B. 477.
^'h. 2] PUBLIC ACTS. 123
judge is in determining ^vhether or not his authority extends over
the matter at issue."*
4L Where there is clearly no jurisdiction over the sub-
ject-matter, any authority exercised is usurped,
and for its exercise, when the want of jurisdiction
is known to the jud^, no excuse is permissible.
Wliere there is a want of jurisdiction over the persons, or over
the subject-matter of the cause of action, it is the same as if there
were no court, — coram non judice.'^* Thus, where a commissioner in a
bankruptcy had a debtor in bankruptcy arrested by a messenger for
refusing to attend before such commissioner, both the commissioner
and the messenger were held liable personally, inasmuch as the
commissioner had no right to make the order.*' So, if a justice of
the peace were to arrest for murder, or a probate judge for a civil
offense, there would be such an absence — as distinguished from mere
excess — of jurisdiction as would attach liability.*' To illustrate, by
way of contrast, if a justice of the peace attempts to enforce an
ordinance of a city which is void for want of authority of the city
to enact it, he is not liable as a trespasser.** But if he undertakes
*» AUec V. Reece. supra; Cooke v. Bangs, supra; Grove v. Van Duyn, 44
N. J. Law, 654, 658-600; Dusy y. Helm, 59 Cal. 188; Rains v. Simpson, 50
Tex. 405. 501; McCaU v. Ck>ben, 16 S. 0. 445; Henke v. McCk)rd, 55 Iowa,
378, 7 N. W. 623; Bumhiim v. Stevens, 33 N. H. 247; Downer v. Lent, 6
CaL 94; Jordan y. Hanson, 49 N. H. 199; Clarke y. Holridge, 58 Barb. 61;
Bocock y. Cochran, 32 Hun, 521; Clark y. Splcer, 6 Kan. 440. See 15 Am.
Law Key. 441; Lange v. Benedict, 29 Am. Rep. 80.
5« Marshalsea Case, 10 Coke, 68b, approved in Taylor v. Clemenson, 2
AdoL & E. (N. S.) 978. See Mitchell v. Foster. 12 Adol. & B. 472; Houldeu
y. Smith, 14 Adol. & E. (N. S.) 841; Piper v. Pearson, 2 Gray, 120; Van
Slyke v. Insurance Co., 39 W\s, 394.
KT Watson V. BodeU, 14 Mees. & W. 57. And see cases collected in Ran-
daU V. Brlgham, 7 WaU. 531, note 1; Griffith v. Frazler, 8 Cranch, ^, .Colla-
mer v. Page, 35 Vt. 387.
B8 Dicta in Grumon v. Raymond, 1 Conn. 40. And see Austin v. Vrooman,
128 N. y. 229. 28 N. E. 477; Calder v. Halket, 3 Moore, P. C. 28; Patzack
v. Von Gerichten, 10 Mo. App. 424.
5» Henke v. McCord, 55 Iowa, 378, 7 N. W. 623; Gifford v. Wiggins, 50
Minn. 401, 52 N. W, 904; Brooks v. 3ilanpan, 80 Mich. 576, 49 N. W. 633.
124 VAUIATIONS IN THE NORMAL UIGHT TO 8U£. [Ch. 2
to commit a person to prison for nonpayment of a fine for contempt,
whyere the judgment for imposing the fine does not provide for im-
prisonment, he is liable, in an action of tort, to the person ille^Ilj
<jommitted.*® As to process, however, the tendency is to exonerate
the judge.*^ The language of the black-letter text is taken from
the opinion in Bradley v. Fisher.** It does not appear that it is
essential whether the judge knew, or did not know, of the want of
jurisdiction,'* though honesty of purpose may mitigate damagea*^
Exemption as to Miniaierial Act8.
The exemption from liability of judges applies only to acts which
are judicial, hence discretionary in their nature. Where, however,
the act is ministerial, and, in its performance, does not involve the
exercise of judgment, judges are liable for their wrongful, malicious,
or corrupt acts, as are individuals. Mere neglect of persons having
judicial functions to perform also ministerial acts, where required,
attaches liability.**
An act is ministerial when it is performed in a prescribed manner,
in obedience to the law, without regard to, or the exercise of, the
judgment of the individual as to the propriety of the acts done.**
Thus, if a justice, in making up his docket, fraudulently and mali-
•ciously fails to mention an appeal, his failure is not a mistake of
judgment, and he is personally liable.*^ The same principle has
«o Lanpher v. Dewell, 56 Town, ir>;^, 9 N. W. 101; Martin v. Marshall, Hob.
<53; Entrick v. CaiTington, 2 WlUea. 275; Gnrnion v. Raymond, 1 Ck)nn. 40.
SI Magulre v. Hughes, 13 La. Ann. 281, and supra, note 29; Austin v.
Vrooman, 128 N. Y. 229. 28 N. E. 477.
eJ 13 Wall. 335, 357.
•»Trusdell v. Combs, 33 Ohio St. 186.
«* De Courcey v. Cox, 94 Cal. 665, 80 Pac. 95.
66 Ferguson v. Earl of KInnoull, 9 Clark & F. 215; Noxon v. Hill, 2 Allen
<MasB.) 205; Jones v. Werden, 12 Cush. (Mass.) 133; Way v. Townsend, 4
Allen (Mass.) 114; Heriofs Hospital v. Ross, 12 Clark & P. 506, 518.
CO Pennington v. Straight, 54 Ind. 376. The black-letter text is from
Grlder v. Talley, 77 Ala. 422. Et vide State v. Johnson. 4 Wall. 475-498;
Sullivan V. Shanklin, 63 Cal. 247-251; Morton v. Comptroller, 4 S. C. 430-474;
Commissioners v. Smith, 5 Tex. 471.
07 Home v. Pudil, 88 Iowa, 533. 55 N. W. 485; Brooks v. St John, 25 Hun.
MO; Peters v. Land, 5 Blackf. (Ind.) 12; Tompkins v. Sands, 8 Wend. (N.
Y.) 462; Place v. Taylor, 22 Ohio St. 317; Rochester White-I-ead Co. v. City
ot Rochester, 3 N. Y. 4G3.
Ch. 2] PIBLIC ACTS. 125
been said to appi v to the refusal of a jodge to issae a writ of habeas
corpus wheneTer a prima facie case of confinement is made out.**
In Yates v. Lancing,** howerer, it was held that thongh a judge in
vacation, who refuses to allow a writ of habeas corpus, is liable to
an action under the statute making the judge liable in damages if
he fails to obey the law, inasmuch as the allowance by him in vaca-
tion is not a judicial act, yet the judges of the supreme court, sitting
as a court in term time, may, in their discretion, refuse a habeas
corpus. Similarly, an action will lie to recover damages for mak-
ing a false return to a writ of certiorari issued by the supreme court
to the persons who had been appointed referees by a county judge
upon an appeal from the order of a highway commissioner altering
a highway.^* In Ferguson v. Earl of Kinnoull/^ it was held that
the taking of his trial as presentee to a church in Scotland was a
ministerial act, which the presentee was bound to perform, and that,
for a neglect or refusal to perform that duty, every member of the
presbytery was liable, collectively and individually, in damages, to
the party injured.
SAME— CONDUCT OF SXECUTIVE OFFICEBS.
42« Private individxials cannot recover damages resulting
from conduct violating a duty owed solely to the
public and imposed by the state on its executive
officers, instrumentalities, or agents. Such damages
are the results of a purely public wrong, and there-
fore are not subject to private action.
43. Damages may, however, be recovered agednst execu-
tive public officers —
(a) For conduct in the course of performance of public
duties, provided
(1) Such conduct violates a duty to an individual,
in the performance of which he has a partic-
••Cooley, Torts, p. 378.
•» 5 Johns. (N. y.) 282.
70 Rector V. Clark. 78 N. Y. 21,
71 9 Clark & F. 215.
126 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
ular interest, even though that duty be also
owed to the public; and
(2) The complainant suffers some special individual
wrong, as distinguished from the wrong done
the community generally,
(b) For unauthorized conduct in the course of perform-
ance of ofiAcial duty.
Violatimi of Purely Public Duties.
In so far as a public officer or institution executes the authority
or performs the functions of the government, the exemption of the
state for wrong applies to him. Under municipal corporations, it will
be seen that, when a city exercises governmental functions, it is not
liable for torts; when it exercises private functions, it is. Many
governmental agencies share even a more absolute exemption. Thus,
an action will not lie against a state house of refuge for an assault
on an inmate by one of its officers.''* A purely charitable corpora-
tion established by the state is not liable for the negligent or mali-
cious acts of its servants.^' Similarly, persons directed by law to
establish a penitentiary are not liable to one injured while working
thereon.'^* And, generally, boards of trustees, and their individual
members, exercising governmental functions, are agents of the state,
and exempt from liability in their performance of public duties.''^
7 2 Perry v. House of Refuge, 63 Md. 20.
7 « Williamson v. liOuisville Industrial School of Reform, 95 Ky. 251, 24
S. W. 1005. A religious corporation oi'ganized under Laws 1876, c. 17G,
providing that it shall not be lawful to divert the property to any purpose
except the support of an object connected with the denomination to which
such corporation shall belong, is not liable for the negligence of an employe*,
where due care was used in his selection. Haas t. Missionary Soc. of the
Most Holy Redeemer (Com. PI. N. Y.) 26 N. Y. Supp. 868. And see Famham
V. Pierce, 141 Mass. 203, G N. E. 830. A collection of cases will be found in
Boyd V. Insurance Patrol, 113 Pa. St. 200-270, 0 Atl. 530. Priestly char-
acter no defense for assault in removing person from a room, who was
lawfully there. Cooper v. McKenna. 124 Mass. 284.
74 Alamango v. Supervisors, 25 Hun, 551. But see Breen v. Field (Mass.)
31 N. E. 1075.
75 Hall V. Smith, 2 Blng. 150; Chamberlain v. Clayton, 66 Iowa, 331, 9
N. W. 237; Walsh v. Trustees, 90 N. Y. 427; Jordon v. Ilayne, 36 Iowa. 9,
15; Nugent v. Levee Com'rs, 58 Miss. 197. And see Younj; v. (Commissioners, 2
€h. 2] PUBLIC ACTS. 127
Thus, the trustees of the Brooklyn Bridge are not liable for error in
judgment, in not providing a sufficient police force on the bridge.^*
The same exemption applies to school boards '^ and school direct-
ors,'* And naval officers destroying property with the consent of
their government are not personally liable to injured owners^*
Savie — The Exemption Applies Gemrdlhj to Persons Engaged in Judicial
Proceedings.
The exemption from liability for torts extends to all persons con-
nected as essential parts of judicial proceedings, as well as to judges.
The purpose of the law, to promote justice by removing the restraint
on the freedom of human action which would be imposed by fear
of civil responsibility for conduct connected with judicial proceed-
ings, would not be fulfilled if the exemption from such liability were
confined to judges only. On the contrary, it extends to the officers
of the court, the parties to the proceeding, and the witnesses who
testify therein, and even to the persons who published a fair report
thereof,*® The exemption has been carried so far as to hold that a
witness is not civilly responsible for damages caused by his perjury.
Thus, no action lies by a creditor against a debtor committed on ex-
Nott & McC. (S. C.) 537; Lyons v. Adams, 2 lud. 143; Bartlett v. Crozier.
17 Johns. (N. Y.) 439; Dunlap v. Knapp. 14 Ohio, G4. Tlie uieuibers of tbe
board of public works (Code Md. art. 72) are not personally liable for in-
juries to workman on vessel of state fi.sUery force, caused by negligence uf
commander appointed by them. Riggiu v. Brown, 59 Fed. 1005.
76 Walsh V. Trustees, 96 N. Y. 427. And see Walsh v. Mayor, 107 N. Y. 220,
13 N. E. 911.
7T Post, p. 178, "Municipal Corporations"; Donovan v. McAlpln, 85 N. Y. 85.
■y* Boardman v. Hague, 29 Iowa, 339; Smith v. District Township of Knox,
42 Iowa, 522. ;
7* Buron v. Denman, 2 Exch. 167. A log inspector is not liable tor mis-
takes in judgment. Gates v. Young, 82 Wis. 272, 54 N. W. 178.
»o Jerome & Knight's Cases, 1 Leon. 107; Dawllng v. Wenman, 2 Show.
446; Damport v. Sympson, Cro. Eliz. 520, Owen, l.^>8; Eyres v. Sedgewicke,
Cro. Jac. 601, 2 Rolle, 197; Wimberly v. Thompson, Noy, 6; Harding v.
Bodman, Hut 11; Taylor v. Bid well. G5 Cal. 489, 4 Pac. 491; Bostwick v.
T^wis, 2 Day (Conn.) 447; Grove v. Bradcuburg, 7 Blackf. (lud.) 239; Dun-
lap V. Glidden, 31 Me. 435; Severance v. Judklns, 73 Me. 376-379; Garing v.
Fraser, 76 Me. 37; Phelps v. Steams, 4 Gray (Mass.) 105; Curtiss v. Fair-
banks, 16 N. H. 542; Smith v. Lewis, 3 Johns. (N. Y.) 1.'»7; Jones v. Mc-
Oaddin, 34 Hun (N. Y.) 632; Cunnlngliam v. Bi-own, 18 Vt. 12;}; Bell v.
i^nneff, 83 111. 122; post, p. 532, "Libel and Slander."
128 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
ecution, for perjury at the examination on his application to be ad-
mitted to take the poor debtor's oath, whereby he obtained his dis-
charge from imprisonment.®^
Vtol-ation of Private Duties.
In order that a person may recover damages, he must show, not
only negligence in the performance of a public duty, but he must also
show a breach of particular duty owing to him. Therefore, where the
duty is entirely to the public at large, and not to any specific individ-
ual, he cannot recover.^* The duty may, however, be both to the public
and to the individual. In such cases he can recover alike for the
nonfeasance, misfeasance, or malfeasance of the public oflftcer.®*
The better opinion is that the courts will not apply "that plausi-
ble, but in reality sterile, verbal syllogization," the distinction drawn
in the Bix Carpenters' Case,** as to misfeasance and nonfeasance, to
ministerial officers. The disobedient officer is privileged, whether
he does, or refrains from doing.®* While it is said that there can
be no difficulty in determining what is a ministerial duty and what
is a public duty,®* this would not appear to be always the case. Thus,
in Sage v. Laurain,®^ it was held that no action would lie against
81 Phelps V. Steams, 4 Gray (Mass.) 105. But see Rice v. Coolddge, supra.
82 Whart Neg. § 284; Shear. & R. Neg. §§ 1()7-177; Kahl v. Love, 37 N. J.
Law, 5; Hall v. Smith, 2 Biug. 156.
83 Rowning v. Goodchlld, 2 W. Bl. 906; Amy v. Supervisors, 11 Wall. 136;
Lane v. Cotton, 1 Salk. 17; Kendall v. U. S., 12 Tot. 524; Reed v. Conway,
20 Mo. 22; Keith v. Howard, 24 Pick. (Mass.) 292; Mech. Pub. Off. (collecting
cases).
84 8 Coke, 146.
8 0 Boston & M. R. Co. V. Small. 85 Me. 462, 27 Atl. 34»-351, per Emery,
J. Cf. Carter v. Allen, 50 Me. 296; Brock v. Stlmson, 108 Mass. 521. And
see note to Barrett v. White, 3 N. H. 210; post, p. 679, "Trespass ab Initio";
ante, p. 287, "Liability of Agent to Third Person." Cf. Orway v. Ferin, 3 !^'.
II. 09.
86 McCord V. High, 24 Iowa, 33(J.
87 19 Mich. 137; Moss v. Cummings, 44 Mich. 359, 6 N. W. 843. And see
Smith V. Gould, 61 Wis. 31, 20 N. W. 369. But damages may be aUowed
against courts by statute. State v. Supervisors, 66 Wis. 199, 28 N. W. 140;
Young V. Commissioners, 2 Nott & McC. (S. C.) 537; Dunn v. Mellon, 147 Pa. St.
11, 23 Atl. 210; Bartlett v. Crozier, 17 Johns. (N. Y.) 439, distinguishing Hover
V. Barkhoof, 44 N. Y. 113; Lynn v. Adams, 2 Ind. 143; Dunlap v. Knapp, 14
Ohio, 64; Garlinghouse v. Jacobs, 29 N. Y. 207 (commissioners not liable). But
Cb. 2] PUBLIC ACTS. 129
highway commissioners for laying out a highway, where they were
acting within their jurisdiction, and violated no law. On the other
hand, in New York a commissioner of a highway was held liable for
omitting to erect barriers in dangerous places at the side of a high-
way, and for leaving the bed of the highway defective.®* But it is
a defense to an action for damages against a commissioner of high-
ways, for injuries sustained in consequence of a defective highway,
to show that he was without necessary funds to make repairs, and
without power to raise them."*
While Judge Cooley correctly states the doctrine that (e. g.) a
sheriff can only be liable to the person to whom a particular duty
was owing, *** in Raynsford v. Phelps •* he holds a collector of taxes
liable for an injury resulting to one who had purchased the equity
of redemption to certain mortgaged lands after a tax had been as-
Kessed thereon, because of the return of nulla bona by the tax col-
lector, whereby the tax became a lien on the land, from which the
owner of the mortgage had to redeem after foreclosure.** This case
is said to be in conflict with the rule as generally stated. But there
is other good authority for holding that a collector of taxes is a
see Robinson v. Chamberlain, 84 N. Y. 380; Hover v. Barklr »f, 44 N. Y. 113
Held liable in Glasier v. Town of Hebron, 131 N. Y. 447, ,10 X. E. t239. And
see Bryant v. Town of Randolph, 133 N. Y. 70, 30 N. E. r»57; Bennett v,
Whitney, M N. Y. 302.
"Pomfrey v. Villajfe of Saratoga Springs, 104 N. Y. 459, 11 N. B. 43:
Plercy v. AveriU, 37 Hun, 3r>0, 3W>; Allen v. Sisson, m Hun, 143; Robinson v.
Chamberlain, 34 N. Y. 389 (overruling Fish v. Dodge, 38 Barb. 1(>3; Minard v.
Mead, 38 Barb. 174); Turnpike Uoad v. Chanipney, 2 N. H. 199. And see
Tearney v. Smith, 86 111. 391; Harris v. Carson, 40 111. App. 147; Billff
y. Belknap, 36 Iowa, 583. The superintendent of streets of a city is liable
for any damages resulting from his negligence In repairing a sewer, not-
withstanding his official capacity. Butler v. Ashworth, 102 Cal. 6(W, 36 Pac.
•» Garllnghouse ▼. .Tacobs. 29 N. Y. 297; Weed v. Ballston, 76 N. Y. 329;
Hines v. Lockport. 50 N. Y. 236. 238; Boots v. Washburn, 79 N. Y. 207;
Monk V. Town of New Utrecht, 104 N. Y. 552, 11 N. E. 2(58. And an action
•ioes not lie against a village when it would not He agninst a commissioner
of a highway. Clapper r. Town of Waterford, 131 N. Y. :W2, 30 N. E. 240,
and cases collected on page 389, 131 N. Y., and page 240, 30 N. E.
•• Cooley, Torts, p. 394, note 1.
•143 Mich, 342.
•> State y. Harris, 89 Ind. 363.
l.AW OF TORTS— 9
130 VARIATIONS IN THE NORSCAL RIGHT TO SUE. [Cll. 2
ministerial officer, the abuse of whose legal authority may be cor-
rected by an action.'*
Special Injury.
Mere community of injury is not sufficient. The party complain-
ing must show special injury peculiar to himself. I "consider the
point beyond all dispute,'^ said Spencer, C. J., "that, for a misbe-
havior of an officer in his office, * * * no one can maintain an
action against him, unless he can show a special and particular
damage to himself." "* He therefore held that no action lay against
the managers of a public lottery, at the suit of a dealer in lottery
tickets who had purchased a large number of tickets to be sold at a
profit, on the ground that, by the negligence and improper conduct
of the defendants, public confidence was destroyed, and the plaintiff
was unable to sell his tickets. '^^
LinbUity of Sheriffs^ Com^tdhlifi, etc.
Sheriffs, constables,®*^ and similar officers are exempt from lia-
bility for damages caused by execution of process whenever it ap-
pears that the writ is regular on its face, that it was issued by a
08 Blanchard v. Dow, 32 Me. 557 (omission to render account In writing
of sale and charges); Carter v. Allen, 59 Me. 29G (deduction of illegal fees
from proceeds of sale); Seeklns v. Goodale, Gl Me. 400 (selliugi of more
goods than is necessary); Bobbins v. Swift, 86 Me. 197, 29 Atl. 981 (demand
of excessive fees).
»* Butler V. Kent, 19 Johns. (N. Y.) 223.
03 Wright V. Defrees, 8 Ind. 298; Eslava v. Jones, 83 Ala. 139; Harring-
ton V. Ward, 9 Mass. 251; Strong v. Campbell, 11 Barb. 135. As by statute,
where the sheriff is civilly responsible for the safe-keeping of prisoners
tH>mmitted to his care (Code Tenn. §§ 6238-6242), and any party aggrieved
may sue on his official bond In the name of the state (Id. 3492-3494), the
United States may, In such an action, rooover for allowing the escape of a
prisoner under indictment by a federal grrand jury, the expenses of the
arrest and keeping of the prisoner, and money expended in recapturing him.
State V. Hill, 9 C. C. A. 326, 60 Fed. 1005.
»« A constable will be protected In levying execution under a void judg-
ment, unless the levy was made with intent to oppress the execution defend-
ant. Thompson v. Jaikaon (Iowa) 61 N. W. 1004. Cf. Taylor v. Moore.
63 Vt. 60, 21 Atl. 919. And if he, while acting as such, wrongfully kills a
person, he is liable therefor on his offl(!lal bond. State v. Walford (Ind.
App.) 39 X. E. 1(:2, Cf. Berwald v. Kay, 165 Pa. Sup. 192, 30 Ati. 727.
Ch. 2] PUBLIC ACTS. 131
court of competent jurisdiction as resi)ectB the subject-matter, al-
thoagh it does not disclose the want of jurisdiction in resp^rt to the
person, nor sliow whether the court ever acquired any jurisdiction
over the person.®' But for conduct under a defective writ, or for
an unauthorized act, such public oflic(»ra l)ecome liable to individ-
uals.'** Thus, they may lu^eonie liable for making arrest under a
defective warrant,**" or for unlawfully breaking into a house to make
a levy,'®° or for failure to sell property levied on,*®* to execute*®^
or return,*®* or for making a false return *®* of, process and execu-
tion,*®* or for negligence in making sale,*®* or for selling exempt
property.*®" Tlie sheriff is liable where he int(»ntionally takes prop-
erty not covered by his writ. In such cas(»s lui is a trespasser ab
initio, and is liable for all consequences of an unlawful entry and
•7 Orr V. Box, 22 Mlun. 485; Savacool v. BouKliton, 5 Wend. (N. Y.) 170.
»« A coUection of authorities as to suits on offlclal bonds for troHpaHses, or
iiuauthorized acts of officers done colore officii. McLendon v. State (Tenn.)
22 S. W. 200, 21 Lawy. Rep. Ann. 738, and note.
•• Post, p. 426, '*False Imprisonment."
100 Welsh V. Wilson, 34 Minn. 92. 24 N. W. 327; Thompson v. State. .1 Ind.
App. 371. 28 X. E. 09(5.
101 Valentine v. Kwileckl, 80 Ga. 98, 14 S. E. 878.
10^ Hawkoye Lumber Co. v. Diddy, 84 Iowa, r>;J4, 51 N. W. 2; Bachelder
V. Chaves (X. M.) 25 Pac. 783; Steele v. Crabtree. 40 Neb. 420. 58 N. W.
1022; Mathis v. Cai-penter, Oo Ala. 150, 10 South. 341; Denson v. Ham (Tex.
App.) 16 S. W. 182; Crosson v. Olson. 47 Minn. 27, 49 N. W. 406; Zelhisky
V. Price, 8 Wash. 256, 36 Pac. 28; Do Yampert v. Johnson, 54 Ark. 165, 15
S. W. 363; Bittman v. MIze. 45 Kan. 450. 25 Pac. 875; Rogers v. Marlboro
Co., 32 S. C. 555, 11 S. B. 383; Pierce v. Jackson, GTy N. II. 121, 18 Atl. 319.
los Hawkins r. Taylor, 56 Ark. 45, 19 S. W. 105; Atkinson ▼. Heer, 44 Ark.
174, foUowed in Wilson v. Yoiinjr, 58 Ark. 503. 25 S. W. 870.
104 Blair v. Flack. 62 Hun (X. Y.) 509, 17 N. Y. Siipp. (14.
105 Turner t. ViXffo, 111 X. (\ 1^91. 16 S. E. 174; Boyd v. Toajjiie, 111 N. C.
246, 10 S. B. 3;J8; Hood v. Blair, 95 Ala. 629. 10 South. 671. But see Union
Store & Mach. Works v. Caswell. 50 Kan. 787, 32 l»ac. 3(J2; Cleveland v.
TitUe, 3 Tex. Civ. App. 191, 22 S. W. 8.
loe Cramer v. Upponsteiu, KJ Colo. 504, 27 Pac. 716; Russell v. Grimes.
31 Xeb. 784, 48 X. W. 905.
107 Krlesel v. Eddy. 37 Neb. 63, 55 N. W. 224. As to action against
lx>nd: Kennedy v. Smith. 99 Ala. 83, 11 South. 665. So where the sheriff
sells property as belonging to another where the owner acquired title after
levy and before sale. Kitchen v. McCloskey, 150 Pa. St. 376, 24 Atl. 688.
132 VARIATIONS IN THE NORMAL RIQHT TO SUE. [Ch. 2
seizure.^*" The sheriflf is, in general, liable for wrongful seizure,*®*
and may be jointly liable with his deputy,"® or with plaintiff in the
action."* For reasons of public policy, the sheriff is absolutely lia-
ble for the forthcoming of all property levied on by him, unless de-
prived of it by the act of God, sudden accident, or the public enemy.
He is therefore liable if it is stolen.*** He may, however, not be
liable for goods destroyed by fire.*** He is liable for the escape of
a prisoner lawfully arrested. He is also liable if the escai)e be due
to the negligence of his deputy.*** The officer may be liable to the
plaintiff in the process, as where he refuses to obey the proper di-
losGrunberg v. Grant, 3 Misc. Rep. 230, 22 N. Y. Supp. 747. Et vide
WiUiams v. Mercer, 139 Mass. 141, 29 N. E. 540.
io» Francisco v. Agulrre, 04 Cal. 180, 29 Pac. 495; McAUaster v. BaUey,
127 N. Y. 583, 28 N. K. 591; Tillman v. Fletcher, 78 Tex. 673, 15 S. W. 161;
Walker v. Wonderllck, 33 Neb. 504, 50 N. W. 445; Rogers v. McDowell (Pa.
Sup.) 21 All. 166; Harris v. Tenney, 85 Tex. 254, 20 S. W. 82; AUen v. Klric,
81 Iowa, (w8, 47 N. W. 906; Brown v. Mosher, 83 Mo. Ill; Taylor v. Moore,
63 Vt 60, 21 Atl. 919; Palmer v. McMaster. 10 Mont. 390, 25 Pac. 1056;
Wbltney v. Preston, 29 Neb. 243, 45 N. W. 619. Measure of damages: Collins
V. Hutchinson (Ind. App.) 30 N. EJ. 12; Mitchell v. Corbln, 91 Ala. 699, 8
South. 810. Attachment: Brown v. Howard, 86 Me. 342, 29 AtL 1004; Noyes
V. Beldlng (S. D.) 59 N. W. 10<>9. The measure of damages. In an aotlon to
recover from a sheriff for his wrongful seizure of property on execution, and
its sale thereunder, is the amount for which it was sold, with interest thereon
from the date of sale. Klrkley v. Lacey (Del. Super.) 30 Atl. 994, 7 Houat
213.
110 Frankhouser ▼. Cannon, 50 Kan. 621, 32 Pac. 379; Luck v. Zapp, 1 Tex.
Civ. App. 528, 21 S. W. 418; State v. Dalton, 69 Miss. 611, 10 South. 578.
111 Jones V. Lamon, 92 Ga. 529, 18 S. E. 423, followed In Waldrup v,
Almand (Ga.) 19 S. E. 994.
112 Hartlleb v. McLane's Adm'r, 44 Pa. St. 510; Bond v. Ward, 7 Mass.
123. As to reimbursement by attaching creditor, see Russell v. Walker,
150 Mass. 531, 23 N. E. 383. As between officer levying and execution cred-
itors, see Bowman v. First Nat. Bank, 36 Neb. 117, 54 N. W. 124.
113 State V. Dalton, 69 Miss. 611, 10 South. 678.
11* Winbome v. Mitchell, 111 N. C. 13. 15 S. E. 882. So as jailer. Saunders
r. Perkins. 140 Pa. St. 102, 21 Atl. 257. Generally as to liability of sheriff,
see Burnett v. Gentry, 32 S. C. 597, 11 S. E. 90; Hanchett v. Ives, 133 III.
332, 24 N. E. 396; Pierce v. Jackson. 65 N. H. 121. 18 Atl. 319; Etter v. O'NeiU
83 Iowa, 655, 49 N. W. 1013; Monahan v. Triumph Ai-tlficlal Limb Co., G
Ohio Cir. Ct R. 150. As to amercement of sheriff, see Shufeldt v. Barlass,
33 Neb. 785. 51 N. W. 134; Sharp v. Ross, 7 Ohio Cir. Ct. R. 55. As t'>
Ch. 2] PUBLIC ACTS. 133
rectioDr of such plaintiff, e. g. as to the time of manner of its execu-
tion, OP as to the property to be subjected to it."* So, also, if the
plaintiff informs the officer of the danger of delay, in directing im-
mediate service."* The officer niav also be liable to the defendant
in the process, as by refusing bail,"^ or subjecting him to oppression
or undue hardship,"" or for abusing process."* He, as well as
his bondsmen, may be liable to third persons, for example, if he takes
the goods of one person upon a writ against anothc»r."'
Liability of Other Offic'uils.
Registers of deeds, or abstract clerks, whose duty it is to make
certificates as to titles, are liable to employers, but not to strangers
or third persons, between whom and them there is no privity, for
errors in making the examination and certificate; *** ajs where there
is negligent omission to note recorded mortgages, assessments,^ *' or
releases."* Where, however, it is no part of statutory duty to make
search of the records of his office and certify to the result of his
search, a clerk is not liable for want of skill or honest errors of
judgment.^ ^^ He is liable for making an improper record of an
measure of damages: Collins v. HntchinBon (Ind. App.) 30 N. E. 12; Mitchell
V. CJorbin, 91 Ala. 599. 8 South. 810.
ii»Ranlett v. Blodgett, 17 N. H. 298; Rett v. Wagner, 30 N. Y. 9. It is
otherwise, however, If plaintilT's instructions are unreasonable. McDonald
Y. Neilson, 2 Cow. (N. Y.) i:',9.
ii« Tucker v. Bradley. 15 roim. 4(>; Smith v. Judkins, 60 N. H. 127.
117 Berrer v. Moorhead. 22 Neb. 687. 3G N. W. lia
118 Wood V. Graves, 144 Mass. 365. 11 X. E. .^»(J7; Baldwin v. Weed, 17
Wend. (N. Y.) 224; Page v. Cushlng. 38 Me. 523.
119 HoUey v. Mix, 3 Wend. (N. Y.) 350; post, p. 424, "False Imprisonment"
120 Wellman v. English, 38 Cal. 583; Wise v. JeflTerls (C. C. A.) 61 Fed.
641; Symonds v. Hall, 37 Me. 354; Griswold v. Boley, 1 Mont. 546; Id., 20
Wall. 48G; Overbye v. McGee, 15 Ark. 459; Sweeney v. Lomme, 22 Wall.
213; Fonda v. Van Home, 15 Wend. (N. Y.) 631.
121 Dundee Mortgage & Truj^t Inv. Co. v. Hughes, 20 Fed. 39; Houseman
V. Association, 81 Pa, St 250, 2(>2; Savings Bank v. Ward, 100 U. S. 195.
i2» Smith V. Holmes, 54 Mich. 104, 19 N. W. 767; McCaraher v. Com., 5
Watts & S. (Pa.) 21; Morange v. Mix, 44 N. Y. 315; Chase v. Ileaney, 70
IlL 268.
123 Wacek v. Frink, 51 Minn. 282, 53 N. W. 633.
124 Mallory y. Ferguson, 50 Kan. 685, 32 Pac. 410.
134 VARIATIONS IN THE NORMAL RIGHT TO BUi:. [Cll. 2
instrument filed with him/*" or for not making an index as re-
quired.^"" Delay in indexing is prima facie evidence of negli-
gence.^*^ Clerks of court are liable for neglij^ence or willfulness
in the performance of their duties. These are largely ministerial.
Thus, where a clerk has failed to issue an execution when ordered
by the plaintiff's attorney an averment by the defendant that the
papers are lost, and thert'fore the costs should not be taxed or exe-
cution issued, is not a sufficient defense.*** Similarly*, the clerk is
liable for carelessly giving a false certiflcate,^"° or for negligently
filing papers.^*^ Notaries public are liable for negligence in pre-
senting or protesting negotiable paper.*'* Such officer is liable for
knowingly making a false acknowledgment,*'* for negligence in
mistaking identity of parties,* ^^ certainly where there is a clear
and intentional dereliction of dutv.*'* He mav be liable for a de-
fective certificate, perhaps, when the defect is the result of negli-
gence, but certainly where it is due to malice.*'*' He has been held
liable in favor of legatees for negligence in drawing a will.*** If
125 Sinclair v. Slawson, 44 Mich. 12:J. 0 N. W. 207
i2« Lyman v. Edperton, 29 Vt. a05; (niathain v. Bnidfonl, 50 Ga. 327.
127 First Nat. Bank v. Clements, 87 Iowa, 542, 54 N. W. 107. As to action
I on bond: Joyner v. Roberts, 112 N. C. Ill, IG S. E. 917.
128 Thoiiron v. Railway Co., 90 Tenn. 009, 18 S. W. 250; Benjamin v. Shea
(Iowa) 49 N. W. 989; Toncray v. Dodge Co., ;J3 Nob. 802, 51 N. W. 235:
People V. Bartels (111. Sup.) 27 N. E. 1091.
120 Maxwell v. Pike, 2 Me. 8.
' 130 Rosenthal v. Davenport. ;J8 Minn. 543, 38 N. W. 018.
isi Commercial Bank v. Varnum. 49 N. Y. 2G9; First Nat. Bank v. Fourth
Nat. Bank, 77 N. Y. 320; Allen v. Merchants' Bank, 22 Wend. (X. Y.) 215.
T82 iiatton V. Holmes, 97 Cal. 208, 31 Pac. 1131; People v. Butler. 74 Mich.
(U3, 42 N. W. 273; Curtlss v. Colby, 39 Mich. 450. Compare Avith Com. v.
Haines, 97 Pa. St. 228.
133 Stale V. Meyer, 2 Mo. App. 413.
134 Com. V. Haines. 97 Pa. St. 228; Henderson v. Smith. 2G W. Va. 829;
Scotten V. Fegan, 62 Iowa, 230, 17 N. W. 491; Brigham v. Bussey, 20 I^.
Ann. 676; Fox v. Thibault, 33 La. Ann. 33; Schmltt v. Drouot. 42 La, Ann.
10(?4, 8 South. 396.
i35Foffarty v. FInley, 10 Cal. 239. Compare Henderson v. Smith. 20 W.
Va. 829.
136 Welntz V. Kramer, 44 La. Ann. 35, 10 South. 416. Compare Schmltt
T. Drouet, 42 La. Ann. 1064, 8 South'. 396.
Ch. 2] PUBLIC ACTS. 135
election officers perform rainisterial duties, they do not come within
the ordinary exemption from liability for tort which they enjoy
while performing judicial duties within jurisdiction and in jjood
faith.* '^ If they do perform judicial functions, they would seem to
come under the rule of quasi judicial officers, and not to be liable
unless the conduct complained of is beyond their jurisdiction, and
malicious.*'® A city ordinance providing for a building inspector,
and requiring him to inspect buildings in the course of erection, and
to "see" that the buildings are enacted as j>rovided by the ordinance,
imposes on him the duty of requiring the buildings to be properly
137 People V. BeU. 119 N. Y. 175, 23 N. E. 5:13. approving C.oetcheus r.
Matthewfion, 61 N. Y. 420; Wilsou v. Mayor, etc., 1 Deiiio, r.l)r>. 599; Roches-
ter White Lead Ck). v. City of Rochester. 3 N. Y. 4t>3: (JiUespie v. Palmer,
20 Wis. 572; People v. Peace, 30 Barb. 588; Goetcheus v. Matthcwson, 61
N. Y. 420; Sllvey v. Lindsay, 107 N. Y. 55, 13 N. E. 444; Sprapins v. Hough-
ton, 3 111. 377; Bernier v. RusseU, 89 111. 60; Hyde v. Bnish. 34 Conn. 451.
Cf. State V. Gordon, 5 Cal. 235.
138 As to acts In good faith within jurisdiction, see Carter v. Harrison, 5
Blackf. (Ind.) 138; Friend v. Hamill, 34 Md. 298; State v. Daniels, 44 N. II.
3S3; Weckerly v. (Jeyor, 11 Serg. & R. (Pa.) 34; Temple v. Mead, 4 Vt. 53.j;
Fausler v. Parsons. 0 W. Va. 486. As to acts beyond Jurisdiction and with
malice of the essence of liability, see Tozer v. Child, 7 El. & Bl. 377; Jen-
kins V. Waldrom, 11 Johns. (N. Y.) 114; Xash v. Whitney, 39 Me. 341;
Humphrey v. King, 5 Mete. (Mass.) 162; Starling v. Turner, 2 Lev. 50; Ashby
V. White, 2 Ld. Raym. 938 (the question of malice not prominent; but see
Harmon v. Tappenden, 1 East, 555, 563); Caulfleld v. Bullock, 18 B. Mon.
(Ky.) 494; Rail v. Potts, 8 Humph. (Tenn.) 225; Carter v. Harrison, 5 Blackf.
(Ind.) 138; Bevard v. Hoffman. 18 Md. 470. And see People v. Boll, 119 N.
Y. 175, 23 N. E. 5:^3; People v. State Board of Canvassers, 129 N. Y. 300, 29
N. E. 345; State v. Gordon, 5 Cal. 235; Long v. Long, 57 Iowa, 497. 10 N.
W. 875; Goetcheus v. Matthewson, 61 N. Y. 420; Chrisman v. Bruce, 1 Duv.
(Ky.) 63; Morgan v. Dudley, 18 B. Mon. 693; Pike v. Megoun, 44 Mo. 491;
That malice is nft essential: Fausler v. Pai-sons, 6 W. Va. 480. Kilham v.
Ward, 2 Mass. 2o(); Gardner v. Ward, 2 Mass. 244; Lincoln v. Hapgood. 11
Mass. 350; Capen v. Foster, 12 Pick. (Mass.) 485; Oakos v. Hill, 10 Pick.
(Mass.) 333; Keith v. Howard, 24 Pick. (Mass.) 292; Gates v. Neal, 23 Pick.
(Mass.) 308; Harris v. Whitcomb, 4 Gray (Mass.) 4:i3; Anderson v. Millikiu,
9 Ohio St. SOS; Jeffries v. Ankeny, 11 Ohio, 372; Thacker v. Hawk, Id. 376;
Monroe v. Collins, 17 Ohio, 665. And see Gillespie v. Palmer, 20 Wis. 544;
Tozer v. Child (1857) 7 VA. & Bl. 377. 26 L. J. (}. B. 151. But Si>e Sanders
V. Getchell, 76 Mc. 158; Pierce v. Same, Id. 216; Osgood v. Bradley, 7 Me.
41U
13G VARIATIONS IN THE NORMAL RIQHT TO SUE. [Ch. 2
constructed, and renders him liable to persons damaged by his non-
performance of the duty."*
Unauthorized Acts.
\Mienever a person sued sets up as a defense that he was an officer
of the government acting under color of law, he must show that
the law authorized the act to be done, and that he acted in good
faith.**® Where his authority fails, his protection is gone. Thus,
an agent of the United States in the service of the coast survey, do-
ing injury to land, will be liable in an action of tort unless such
entry and injury were reasonably necessary for the coast survey.***
So where a board of state commissioners, disregarding the require-
ments of the city charter that all work for the city should be let by
contract, undertook to repair a bridge themselves, they were held
liable for an injury caused to a person by the negligence of employ<^8
engaged in doing the work, although the city was not*** That the
wrongdoing of an officer is also punishable as a penal offense is no
bar to the maintenance of an action by the individual injured.***
Even where the authority of the officer fails because the law under
which he acted, even in good faith, has been declared unconstitu-
tional,*** he is liable. So, also, where the court whose direction
he obeyed had no jurisdiction.**" A defective writ is no defense
to an officer serving it, or an arrest under it.*** For example, in
i30 Menitt v. MeNally, 14 Mont. 228, 36 Pac. 44.
140 Tweed's Case, IG Wall. 504.
141 Orr V. Quimby, 54 N. H. 590.
i4« Robinson v. Rohr, 73 Wis. 43(5, 40 N. W. 668; Bailey v. Mayor, 3 HUl.
531; Martin v. Mayor, 1 Hill, 545; Donovan v. McAlpin. 85 N. Y. 185; Fita-
patriek v. Slocum, 89 N. Y. 358.
148 Hayes v. Porter, 22 Me. 371; Raynsford v. Plielps, 43 Mich. 342. 5 N.
W. 403.
144 Mech. Pub. Off. p. 445, § 662, collecting cases. Under such circum-
stances good faith may mitigate damages. Booth y. Lloyd, 33 Fed. 593. But sec
Henke v. McCord, 55 Iowa, 378, 7 N. W. 623; Dunn v. MeUon, 147 Pa. St.
11, 23 Atl. 210, collecting cases (page 16, 147 Pa. St., and page 210, 23 Atl.).
14B Clark V. Woods, 2 Exch. 395. And see Mayor of London v. Cox, L. K.
2 H. L. 239.
140 Post, p. 426, "False Imprisonment" But a constable may serve a writ
regular on its face, but issued on a void Judgn^ent. Cornell v. Barnes, 7 Hill
(N. Y.) 35; Burd, Lead. Cas. 86. Of. O'Shaugnessy v. Baxter, 121 Mass. 515;
Bui'd, Lead. Cas. 88. It has been held that the officer, to justify seizure of
€h. 2] pUBUc AC». 137
replevin against an officer to recover attached property, the officer,
to juatily, mast show his anthoritj bv a reinilArlv issned writ of
attachment.^*^ In all cases where the liabilitv is claimed because
of negligence, motive and good faith are immaterial.***
44. A public ofllcer not ministerial is not responsible for
the tortious condnct of an official subordinate, un-
less in some way personal Ikult is attributed to
him, as wrhere he has —
(a; Been grnilty of negligence; or
(b) Directed or participated in the wrong.
46. Ministerial officers are, in general, liable for wrongs
caused by deputies, as distinguished from private
servants.
Muiititerial Officer*,
The exemption of a public nonministerial officer from liability for
the acts of his subordinates is an extension and application of the prin-
ciples governing the exemption of the officers themselves. Where the
subordinates perform a governmental function, they are not the rep-
resentatives of their superior officer, but of the state. The exemption
thus rests on the same consideration of public policy which exempts
the superior officers themselves.^ ^* The postmaster general, his dep-
uties, local postmasters, and their assistants perform public func-
tions, and, while their wrongdoing in an official capacity may inflict
damage on innocent persons, the exemption from liability of tlie
state extends to them all alike.^^^ So, a collector of customs is not
prop^ty by writ, must not only show that the writ is regular on its face,
but tliat all preliminary proceedings were regular and sufficient. Palmer v.
V. McMaster, 10 Mont. 390, 25 Pac. 1056. This does not, however, apply to
tbe process and officers of the United States court. Mathews v. Densnidre,
109 U. S. 216, 3 Sup. Ct. 120.
i*T Spaulding v. Overmire (Neb.) 58 N. W. 736.
i4» Hoover v. Barlchoof, 44 N. Y. 113; Amy v. Supervisors, 11 AVall. 136.
Good faith as an excuse. Squlers v. Neenah, 24 Wis. 5S8; Hamilton v. Fond
<ln Lac, 40 Wis. 47; Smith v. Gould, 01 Wis. 31, 20 N. W. 300.
i<» City of Richmond v. Long, 17 (5 rat. (Va.) 375.
i»o Keenen v. Southworth, 110 Mass. 474; Lane v. Cotton, 1 Ld. Raym. 64(i;
Whitfield v. Lord Le Despencer, Cowp. 754; Dunlop v. Munroo, 7 Crancli,
138 VARIATIONS IN THK NORMAL RIGHT TO SUE. [Ch. 2
personally liable for a tort committed by his subordinates in negli-
gently keeping the trunk of an arriving passenger on the pier where
it was destroyed by fire, instead of sending it to the public store,
where there is no evidence to connect the collector personally with
the wrong, or that the subordinates were not competent, or were
not properly selected for their respective positions.^ ''^ The same
exemption from liability for the negligonce of subordinates applies
to public trustees and commissioners.^*^^ Where, however, the offi-
cer has been in some way guilty of negligence, as in the employment
or retention of unfit or improper servants,^ '^^ or failure in his duty
to require of them due qualifications for office, as to take the oath
prescribed by law,^°* or to execute a proper bond,^°* or where he
carelessly conducts the business of his office,^ '^^ he may be held lia-
ble as for his own wrong.^"' He is also liable w^here he has in
242; Schroyer v. Lynch, 8 Watts (Pa.) 2r>3; Bishop v. WlUiamson, 11 Me.
495; Bolan v. Williamson, 1 Brev. (S. C.) 181; Wiggins v. Hathaway, 6 Barb,
(N. Y.) G32. A postmaster may be liable for not acting judiciously in char-
ging letter postage on a newspaper. TeaU v. Felton, 1 N. Y. 537. Contractors
for carrying mail are not liable for acts of subordinates. Sawyer v. Corse,
17 Grat (Va.) 230; Foster v. Metz, 55 Miss. 77. But see, contra. Con well v.
Voorhees, 13 Ohio, 523; Hutchins v. Brackett, 22 N. H. 252. See comments
in Thomp. Elec.
151 Robertson v. Sichel, 127 U. S. 507, 8 Sup. Ct. 1286; Rubens v. Robertson,
38 Fed. 86. Et vide Brissac v. Lawrence, 2 Blatchf. 121, Fed. Cas. No.
1,888. So, a confederate district commissioner in Virginia Is not resiK)nsible
for the torts of his subagonts unless he co-operated In or authorized the
wrong. Tiacy v. Cloyd, 10 W. Va. 19. So, also, in the case of a captain of
a ship of war. Nicholson v. Mounsey, 15 East, 384.
152 iiolliday v. St. Leonard, 11 C. B. (N. S.) 1D2; Duncan v. Flndlater, 6
Clark & F. 894; Humphreys v. Mears, 1 Man. &, B. 187 (but see ante, p. 12G,
"Liability of Highway Commis.sionere"); Hall v. Smith, 2 Bing. 156; Harris
V. Baker, 4 Maulc & S. 27; Sutton v. Clark, 6 Taunt. 29, 34; Donovan v.
McAlpin, 85 N. Y. 185; Walsh v. Trustees, 96 N. Y. 427; County Com'rs v.
Duvall, 54 Md. 35<).
153 Wiggins V. Hathaway, 6 Barb. (532.
104 Bishop V. Williams, 11 Me. 495; Bolan v. Williamson, 1 Brev. (S. C.>
181; Sawyer v. Corse, 17 Grat. (Va.) 230.
156 wasson v. Mitchell, 18 Iowa, 153, Burd, Lead. Cas. 93. As to liability
for insufficient bond, Hubbard v. Switzer, 47 Iowa, ('►81.
i6« Dunlop V. Munroe, 7 Cranch, 242; Ford v. Parker, 4 Ohio St. 576.
157 Ely V. Parsons, 55 Conn. &3, 10 Atl. 499.
<^h. 2] PRIVATE ACTS. 139
anj wise participated in the wrong. Where a pnblic officer is sued
for the tort of his i)ersonal employ^, he may be held liable as any
other master.****
Ministerial Lkpitties.
While the employ<^^ of a rainlrfterial officer may not be a private
servant, there is no more reason for ex(»inptinj; such officer for the
conduct of his servant than for his own conduct. Accordingly,
wherever recovery could be had against the executive for his own
act, it can be had against him for the act of his subordinate."*
Thus, a superintendent of repairs on the canals of the state, though
an agent of the state, is persoually liable for damages sustained by
an individual through the negligence of workmen engaged in making
such repairs."® A constable is civilly liable for the trespass of his
deputy colore officii."* So, a deputy sheriff is acting within the
scope of his employment in engaging a keeper to aid to keep safely
property which he had levicnl on under warrants of attachment, and
the sheriff is liable for his acts."*
PBIVATE ACTS.
46. Where there is no excess or abuse of authority, no
action lies to recover damages incident to an act
authorized —
(a) By statute, or municipal ordinance;
(b) By common la^w. These may be classified eus:
(1) Ordinary rights;
(2) Disciplinary powers;
(3) Bights of necessity;
(4) Bight of private defense.
188 Wilson v. Peverly, 1 Am. Lead. Cas. 785; Ely t. Parsons, 55 Conn. 83,
io Atl. 499.
isoMech. Pub. Off. §§ 707-SOl; Bassett v. Fish, 75 N. Y. 303; Cook v.
Palmer, 0 Barn. & C. 739; HazzaiU v. Israel, 1 Bin. (Pa,) 240; Knowlton v.
Bartiett, 1 Pick. (Mass.) 270.
i«o Shephard v. Lincoln, 17 Wend. (N. Y.) 249.
i«i Frizzell v. Duffer, 58 Ark. 612, 25 S. W. 1111.
lea Foster v. Rhineliart (City Ct Brook.) 11 N. Y. Siipp. 629.
140 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
SAME— EXEBOISE OF 8TATUTOBY BIGHTa
47. No action lies for damages incident to acts authorized
by statute.
No action lies for damage to property where such damage is ex-
pressly authorized by statute, or is, physically speaking, the neces-
sary consequence of what is authorized. In other words, for dam-
ages resulting from the proper execution of statutory authority, no
action lies.*** Thus, the legislature may grant the right to main-
tain a local nuisance. Damages which would result from the main-
tenance of such nuisances are incident to the authorized act, and
give no cause of action.**^ The annoyance from noise, smoke, and
disturbances necessarily attending the operation of a railroad,**'
and its interference with property,* •• is damnum absque injuria, in
i«8 Managers v. HiU, L. R. 6 App. Cas. 193; Gaslight & Coke Co. v. Vestry
of St Mary Abbott's, 15 Q. B. Div. 1, 5; J. S. Keator Lumber Co. v. St Croix
Boom Corp., 72 Wis. 62, 38 N. W. 529; Hamilton v. RaUroad Co., 110 U. S.
280, 7 Sup. Ct. 206; Sedalia Gaslight Co. y. Mercer, 48 Mo. App. 644; Bese-
man v. Pennsylvania R. Co., 50 N. J. Law, 235, 20 Atl. 169; Durand v.
Borough of Ansonia, 57 Conn. 70, 17 Atl. 283; Iron Mountain R. Co. v.
'Bingham, 87 Tenn. 522, 11 S. W. 705; Bell v. Norfolk S. R. Co., 101 N. C. 21,
7 S. E. 467; Jones y. St Louis R. Co., M Mo. 151; Slatten y. Des Moines
Valley R. Co., 29 Iowa, 148, 154; Richardson y. Vermont Cent R. Co., 25 Vt
465; Ellis V. Iowa City, 29 Iowa, 229; Hatch y. Vermont Cent R. Co., 25 Vt.
49; Dodge y. Essex Co., 3 Mete. (Mass.) 380. Perhaps the best illustration
of the absence of liability for damages incident to authorized act is to be found
in the contrast of Ry lands y. Fletcher, L. R. 3 H. L. 330, with the Zemindar
Case, L. R. 1 Indian App. 364. Post, p. 835, "Negligence." When the legis-
lature has sanctioned and authorized the use of a paricular thing, and it is
used for the purpose for which it was authorized, and eyery reasonable cau-
tion* is used to preyent the injury, the sanction of the legislature carries with
it these circumstances or consequences, and if damage result from the use of
the thing the party using it is not responsible. 3 Walsh, Students* Q. B. (Stu-
dents' Ed.) 279.
104 A charter to operate a fertilizing company is a sufficient license until
revoked. Northwestern Fertilizhig Co. y. Hyde Park, 97 U. S. 659; Wood,
Nuis. p. 781, c. 23; 4 Wait, Act. & Def. 728; post, p. 788, ^'Legalized Nuisance,"
note 455.
i«o Post, p. 790, "Legalized Nuisance"; Atchison & N. R. CJo. y. Garside, 10
Kan. 552-567.
166 Thus, where a legislature has authorized a railway company to lay down
Ch. 23 PKIVATK ACTS. 141
the absence of statutory compensation,^*^ whereas if there be no
statutory authority there is ordinary liability.^** And on the other
hand, where the legislative authority binds those acting under it to
make good specified damage, they are bound to make it good under
all circumstances, and without any exceptions, even as to inevitable
a railway alongside of a public highway, it must be presumed to have con-
templated the poHsibility that damages would result to persons using the
highway. Such persons must submit to the Inconvenience resulting from
the working of the railway. King v. Pease, 4 Barn. &, Adol. 30. And se^
Vau^han v. Taff Vale Ry. Co., 5 Hurl. & N. 07»; London, B. & S. C. Ry. Co.
V. Truman, 11 App. Cas. 45. But see Powell v. Fall, 5 Q. B. Div. 507, and
Sadler v. South Staffordshire & B. D. G. T. Co., 23 Q. B. Div. 17. 80, if an
engine, carefully handled, frightens horses, the charter of a corporation af-
foniB legal justification. King v. Pease, 4 Bam. & Adol. 30; Beseman v.
Pennsylvania R. Co., 50 N. J. Law, 235, 13 Atl. 1(U; Thompson v. Railroad
Ck)., 51 N. J. Law, 42, 15 Ati. 833. Cf. Costlgan v. Pennsylvania R. Co., 54
N. J. Law, 233, 23 Atl. 810; Baltimore & 1». R. Co. v. Fifth Baptist Church,
108 U. S. 317. 328, 2 Sup. Ct. 710, per Field, J.; RadclliTs Ex'rs v. Mayor,
etc., 4 N. T. Id5; Crosby v. Railroad Co., 10 Bush (Ky.) 288; Pennsylvania
R. Co. V. Lipplncott. 116 Pa. SL 472, 9 Atl. 871.
i«7 The leading case on this subject as to the right of abutting owners to
recover compensation is Sperb v. Metropolitan £1. Ry. Co., 32 N. E. 1050.
It was here held, per Gray, J., that an elevated railway company, in acquir- •
ing the right to maintain its structure in a street to the injury of the ease-
ments of light, air, and access of the abutting owner, is liable for the inci-
dental injuries caused by the future discharge of smoke, cinders, and noxious
gases occasioned by the running of trains. 16 N. Y.- Supp. 392, reversed;
Suarez v. Railway Co., 15 N. Y. Supp. 222, approved. Hammersmith & City
Ky. Co. V. Brand, L. R. 4 H. L. 171; Ricket v. Metropolitan Ry. Co., L. R. 2
H« L. 175, per Lord Cranworth. A statute may require insurance against
harm, notwithstanding even inevitable accident on the part of the corpora-
tion to which it has granted privilejJ32S. But courts will, if possible, read Into
the statute the common-law exceptions of inevitable accident (River Weir
Com'rs V. Adamson [1877] 2 App. Cas. 743), however, on the general principle
that a statute is not to be construed as extinguishing any private right unless
it appeara by expressed words or by plain implication that it was intended
to do so (Barrowington's Case, 8 Coke, 136b, 138a; Western Counties Ry. Co.
T. Windsor & A. R. Co., 7 App. Cas. 178). Generally, as to compensation^
see Gainesville, H. & W. Ry. Co., v. Hall, 78 Tex. 169, 14 S. W. 259; Moss
V. Manhattan Ry. Co., 58 Hun, 611, 13 N. Y. Supp. 46; Omaha & N. P. R. Co.
V. Janecek, 30 Neb. 276, 46 N. W. 478; Fox v. Baltimore & O. R. Co., 34 W,
Va. 466, 12 S. E. 757.
i«8 Jones V. Railway Co., L. R. 3 Q. B. 733.
142 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
accident, just as if they had entered into an express contract of
insurance with the person suffering the damage.^®*^ Municipal cor-
l^orations are not liable to landowners for consequential damages
arising out of work done in pursuance of legislative authority, unless
civil responsibility is created by the statute itself."® They are not or-
dinarily held responsible for damages resulting from establishing and
changing the grade of streets, if reasonable care is exercised in per-
forming the work."^ Municipal license may be a defense for dam-
age in conduct otherwise actionable. Abutting owners using streets
or roads in accordance with municipal regulations are not, in the
absence of negligence, liable for injury resulting from such use."^
The necessary physical consequences of public authority may justify
a trespass. Therefore, where a telephone company was required^to
i«9 Rothes V. Waterworks Com'rs (1882) 7 App. Cas. 694, 1 Eug. RuUng:
Cas. 351. Cf. Dodge v. Commissioners, 3 Mete. (Mass.) 380; Brown v. Rail-
road Co., 5 Gray (Mass.) 35; Sabin v. Railroad Co., 25 Vt 363; Whitehouse
V. Railroad Co., 52 Me. 208. And see post, 236, "Independent Contractors."
170 Northern Transp. Co. v. City of Chicago, 11 Chi. Leg. News, 255; 2
Thomp. Neg. 692. Et vide Id. p. 743, § 9, discussing liability of municipal
corporation for public Improvement Under Const. 1890, art. 3, § 17, declaring
that private property shall not be taken "or damaged" for public us^ ex-
*cept on due compensation, a city is liable for damages to abutting property
for materially lowering the street grade, especially after valuable improve-
ments had been put on the lot according to the prior established grade. City
of Vicksburg v. Herman (Miss.) 16 South. 434.
iTi Radcliflf's Ex'rs v. Brooklyn, 4 N. Y. 195; Cumberland v. WiUison, 50 Md.
138; Henry v. Pittsburgh & A. B. Co., 8 Watts & S. 85; Governor of
British Cast-Plate Manufacturers v. Meredith, 4 Tei-m R. 794; Sutton v.
Clarke, 6 Taunt, 29. Et vide Dill. Mun. Corp. § 990; 2 Thomp. Neg. p. 747,
§ 10. Cf. Akron v. Chamberlain Co., 34 Ohio St. 328. See ante, p. 80,
"Damnum Absque Injuria," note 348. If defendant, assuming to act for a
city, change the grade of a street, to the injury of plaintiff, and the city rat-
ifies what he had done, even after suit was brought, the act of defendant
was justified. Wolfe v. Pearson, 114 N. C. 621, 19 S. E. 267. But such ex-
emption does not seem to apply to a rallrc ad company authorized to change
the grade of a highway. Pennsylvania R. Co. v. Stanley, 10 Ind. App. 421, 37
N. E. 288, and 38 N. E. 421.
172 Denby v. Wilier, 59 Wis. 240, 18 N. W. 169. The license may be implied.
Korte V. St. Paul Trust Co., 54 Minn. 530, 56 N. W. 246. So where the
damage is consequent upon the doingp of cattle allowed to run at large by
ordinance. Fritz v. Railrcad Co., 22 Minn. 404. And see Alger v. Railroad
Co., 10 Iowa, 268; Galpin v. Railroad Co., 19 Wis. 637.
Ch. 2] PRIVATE ACTS. l-l-i
move its poles, and in doing so trimmed trees, no liability attach-
ed.*"
Abuse or Excess of Authority.
**Tbe rightful and bona fide exerrise of a lawful power or authority
cannot aiTord a basis for an action. If the power or right is exer-
cised carelessly, neglijifnlly, im}»ro|)erly, and maybe maliciously, the
party so exercising it may be liable to respond in damages for any
injury, direct or consequential, resulting to another from exercising
the right or power; but such liability can only arise upon and for
the manner of doing the act, and not for the act itself.*' "* Where,
however, the injury complained of is not properly the necessary result
of the authorized act, the exemption does not apply."' Hius, ordi-
narily a railroad company cannot monopolize a street, in derogation
of the public and private use to which it should be applied.*^* Un-
17* Southern BeU TeL & TH. Co. v. Constantino, 9 C. C. A. 359, ei Fed.
01. But see Memphis Bell Tel. Co. v. Hunt, IG Lea (Tonn.) 45G; Tissot
V. Great Southern Tel. & Tel. Co., 39 La. Ann. 9lKi. 3 South. 2C1. On the
saoie principle, no action lies for damages incident to the use of property
authorized by the consent of owners, Updegrove v. Railroad Co., 132 Pa. St.
r>40, 19 Atl. 283; nor for the proper exercise of a franchise, even though
actual harm result, Reiser v. Gas Co., 143 Pa. St 27G, 22 Atl. 759; Penn-
sylvania R. Co. V. Lippincott. IIG Pa. St. 472, 9 Atl. 871; Jutte v. Keystono
Bridge Co.. 146 Pa. St 400, 23 Atl. 235; Cleveland & P. R. Co. v. Speer, 50
Pa, St 325.
174 Slatten v. Des Moines R. Co., 29 Iowa, 148; Vaughan v. Taff Yale R.
Co., 5 Hurl. & N. 079. City grading not liable for consequential damages,
Radcliffe's Ex'rs v. Mayor, etc., 4 N. Y. 195. But a railroad's charter does not
confer power to so excavate its own land as to cause an adjoining land-
owner's soil to slide into the excavation, Richardson v. Railway Co., 25 Vt.
465; Baltimore & P. Ry. Co. v. Reaney, 42 Md. 117; nor blasting, Georgetown,
B. & L. Ry. Co. V. Doyle, 9 Colo. 549, 13 Pac. G99. And see Carman v. Rail-
road Co., 4 Ohio, 399; Stone v. Cheshire Co.. 19 N. II. 427; Sabin v. Railway
Co., 25 Vt. 3G3. But see Dodge v. Commissioners, 3 Mete. (Mass.) 380; Brown
V. Railroad Co., 5 Gray (Mass.) 35; Whitehouse v. Railroad Co., 52 Me. 2aS.
In building a bridge, cf. Rhea v. Railroad Co., 50 Fed. IG, with Memphis &
O. R. Co. V. Hicks, 5 Sneed, 427.
17 5 Canal Co. v. Lee, 22 N. J. Law, 243. Cf. Pumpelly v. Green Bay Co.,
13 Wall. 166, 177, 178; Northern Transp. Co. v. Chicago, 99 U. S. 635-G42;
Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. ,317-331, 2 Sup. Ct
719.
i7« JanesYllle v. Milwaukee & M. R. Co., 7 Wis. 410; Pennsylvania R. Co.
144 VARIATIONS IN THE NORMAL RIGHT TO SUK. [Ch. 2
der an act of parliament, a railway company purchased a piece of
land adjoining one of its stations, and used it for a cattle dock. It
was held, however, that the act gave the company no authority to
create a nuisance to the occupiers of houses near the cattle dock
by herding cattle therein.*" Statutory authority to do what would
otherwise be an actionable wrong does not exempt from the require-
ment of the exercise of care, judgment, and caution.*'* When a
railroad company can construct its work without injury to private
rights, it is, in general, bound to do so.*'* And, generally, negli-
gence and excess in the exercise of statutory authority attach lia-
bility.**® Excavations made by authority must be properly guarded,
and every means adopted for the protection of the public. Failure
V. Angel, 41 N. J. Eq. 316. 7 Atl. 432; Pennsylvania R. Ck>. v. Thompson, 45
N. J. Eq. 870, 19 Atl. 622; Baltimore & P. R. Co. v. First Baptist Church,
108 U. S. 317, 2 Sup. Ct. 719; Burd, Lead. Cas. 97; post, p.. 788, ''Legalized
Nuisance.'*
1T7 Truman v. London, B. & S. C. R. Co., 29 Ch. Dlv. 89. Et vide Rapier
V. London Tramways Co. (1893) 2 Ch. Dly. 588. Contractor's authority to
repave a street may not stop the running of cars while the work Is being
done. Milwaukee St Ry. Co. v. Adlam, 85 Wis. 142, 55 N. W. 181.
1T8 London & N. W. R. Co. v. Bradley, 3 Macn. & G. 341.
170 Blscoe V. Great Eastern R. Co., L. R. 16 Eq. 636. That liability for
burning property adjacent to right of way depends on negligence, see Mis-
sissippi Hpme Ins. Co. v. Louisville, N. O. & T. R. Co., 70 Miss. 119, 12 South.
150, and post, p. 840, "Negligence."
180 Thus, the city of Boston, authorized by statute to Improve Stony brook,
by its delay in providing a sufficient outlet into the sea to carry off the
water, which, by Its work upon the upper part of the stream, had been in-
creased in volume beyond its natural flow, to plalntifTs damage, was held
responsible because of the unskillful and negUgent manner in which the work
was done. Boston Belting Co. v. Boston, 149 Mass. 44, 20 N. E. 320. City
of Bloomlngton v. Chicago & A. R. Co., 134 lU. 451, 26 N. E. 366; Rockwood
V. Wilson, 11 Gush. 221; Burcky v. Town of Lake, 30 111. App. 23; George-
town, B. & L. Ry. Co. V. Doyle, 9 Colo. 549, 13 Pac. 699; Brewer v. Boston,
etc., R. Co., 113 Mass. 52; Gudff?r v. Western N. C. R. Co., 87 N. C. 325;
Hazen v. Boston & M. R. Co., 2 Gray, 574; Memphis & O. R. Co. v. Hicks,
5 Sneed (Tenn.) 427; Lake Shore & M. S. R. Co. v. Hutchlns, 37 Ohio, 282;
Cairo & St. L. R. Co. v. Woolsey, 85 111. 370; Shaw v. New York & N. E.
R. Co., 150 Mass. 182, 22 N. E. 884; Thompson v. Pennsylvania R. Co., 51 N.
J. Law, 42, 15 Atl. 833; Krug v. St Mary's Borough, 152 Pa. St. 30, 25 Aa 161;
Martin v. Chicago, S. F. & C. Ry. Co., 47 Mo. App. 452; Leavenworth. N.
6 S. Ry. Co. V. Curtan, 51 Kan. 432, 33 Pac. 297; McNulta v. Ralston, 5 Ohio
Ch. 2] ITUVATE ACTS. 14')
SO to do attaches liability for consequent damages. Thus, if one has
l»oen authorized to excavate in a street, he must provide, as far as
human foresight can, against consequent perils.**** And although
a telephone companv may be authorized to ere<'t its poles in a street,
if it erects them so as to dangerously obstruct the street, the license
is no defense.*'* A statute giving a lire department "right of way
while going to a fire'' does not relieve it from liability for negli-
gence.***
SAME^-EXERCISIS OF OBDINABT EIGHTS.
48. The exercise of ordinary rights for a lawful purpose
and in a lawful manner is not actionable, even if
it causes damages. ^^
Cir. Ct. R. 330; (Jriffin v. Slireveport & A. U. Co., 41 Iji. Ann. SOS, 0 Soutli.
<G4; PennHylvanhi S. V. K. Co. v. Walsh, 124 Pa. St. r)44, 17 Atl. lK(i; City
of Durango v. Liittrell, IS (^olo. lil, 31 Pac. HXi.
i^^i Drew V. New River Co., (; Car. & P. 754; Irvine v. Wo<hI, ni X. Y. 22J;
Ir\'in V. Fowler, 5 Rob. (X. Y.) 4S2; Chicago v. Robbins, 2 Hlnck a:. S.) 41S;
Jones V. Bird, 5 Barn. & Aid. 837; WhitohoUHe v. Fellowe«. U) C. B. (X. S.)
7(jr>; Brownlow v. Metropolitan Board of Works, 13 C. B. (X. S.) 7r»S; Ciisli-
ing V. Adams, 18 Pick. (Mass.) 110; liouian v. Stanley, (U) Pa. St. 4<U; lIay*.»H
V. Gallagher, 72 Pa. St. 13r,; McCainus v. Citizens' (laslight Co., 40 Barb.
iX. Y.) 3S0.
182 Wolfe V. Erie Tel. & Tel. (U, 33 Fed. 320; Shefflehl v. Central Union
Tel. Co., 3<; Fetl. ir>l (where plaintiff's buggy collidetl with pole). And gen-
erallj*, as to liability of electric companies, antliorized to enn-t iH)les and
suspend wires, for negligence, see Pennsylvania Tel. Co. v. Vaniau (Pa. Sup.)
15 Atl. (524; W. U. Tel. Co. v. Eyser, 2 Colo. 141; Thomas v. W. U. Tel. Co.,
100 Mass. 15<); Wils«m v. Great South. Tel. & Tel. Co., 41 La. Ann. 1011, 0
South. 781; Dickey v. Maine Tel. Co., 4(5 Me. 48,5. Municiiml franchise to
Imild and operate a street railway In the streets of a city does not exempt a
company from liability for injury caused by its negligence in the manage-
ment of its pn>pei'ty, or in the cliaracter of its duty proper. Local Rapid
Transit Co. v. Nichols (Xeb.) .V* X. W. 872. Et vide McKlllop v. Duluth St.
\ly. Co., 53 Minn. rv»2, 55 N. W. 730. It Is no defense to an action against a
street-railway comimny for Injuries caused by an electric pole in the street
that the pole was plac<Hl in accordance with the rcciulrements of defendant's
charter and the city ordinance. Cleveland v. Bangor St. Ry., 8(5 Me. 232, 20
AU. 1005.
»83Xewcomb v. Boston Protective Department, 146 Mass. 500, IG N. E. 555.
18* Pol. Torts, c. 4, sulKl. 9.
LAW OF TOUTS— 10
146 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
If a man be injured bv the exercise of another's ordinary rights,
lie has no action. This immunity in the exercise of common rights
is a restatement, in a somewhat different form, of the doctrine em-
bodied in the "damnum sine injuria." The right to transact lawful
business is a universal one. Damages consequent upon competition
are not actionable. "To say that a man is to trade freely, but that
he is to stop short of any act which is calculated to harm other
tradesmen, and which is designed to attract their business to his
own shoj), would be strange and impossible counsel. To draw a line
between fair and unfair competition, between what is reasonable
and what is unreasonable, passes the power of the courts. Compe-
tition exists where two or more persons seek to possess or to enjoy
the same thing. It follows that the success of one must Ik* the
failure of the other, and no principle of law enables us to interfere
Avitli or to moderate that success or that failure, so long as it is due
to mere competition. There is no restriction imposed by law on
competition by one trader with another with the sole object of bene-
fiting himself.'' "To attempt to limit • ♦ ♦ ^-ompetition ♦ ♦ •
would probably be as hopeless an endeavor as the exj)eriment of
King Canute." ^*^
The right to use a ])ersonal or local name is a common right. To
acquire i)roperty in a name sufficient to make interference with it
a tort, — that is to say, to acquire a right to the exclusive use of a
name, device, or symbol, as a trade-mark, — ^it must appear that it
was adopted for the pur])ose of identifying the origin or owneisliip
of that to which it is attached, or that such trade-mark points dis-
tinctively to the origin, manufacture, or ownership of the article on
which it is stamped. A person cannot acquire a right to the ex-
clusive use of a name, device, or symbol, as a trade-mark imless it
is made to appear that it was adopted for the purpose of identify-
i85B()wtMi, L. J., in Mogul Steamship Co. v. McGregor, 23 Q. B. Div. nos.
affirming [1892] App. Cas. 25. And see 22 Hen. VI. p. 14, pi. 23, A. D. 1413;
Rogers v. Kajeudro Dutt, 8 ^loore, Ind. App. 134; Cora. v. Hunt, 4 Mete.
(Mass.) Ill; Payne v. Uailroad Co., 13 Loa (Term.) 507; South Royalton
liank V. Suffolk Bank. 27 Vt. 505; Delz v. Winfree. SO Tex. 402-405. 16 S.
W. 111. The setting up of a new Inu where there is no necessity for it, as
where there are already' a sufficient number, renders the iuu so set up
liable to Indictment as a public nuisance. 1 Uuss. Crimes; 3 Bac. Abr. tit.
"Inns."
Ch. 2] PRIVATE ACTS. 147
ing the origin or ownership of the article to which it is attached,
or that such a trade-mark points distinctly to the origin, manufac-
ture, or ownership of the article on which it is stamped, and is de-
signed to indicate the owner or producer of the commodity, and to
distinguish it from like articles nianufactui*ed by others. Accord-
ingly, a person cannot acquire a right to the exclusive use of the
word ^'Columbia/' as a trade-mark,*** nor the words **Liver Medi-
cine/' *®^ On the other hand, however, the memory of a person who
voluntarily places himself before the public, either as a public offi-
cer, or by becoiuing a candidate for office, or as an artist or literary
man, does not necessarily become public ]>rop(Mty. It is undoubt-
edly true that by occupying a public position, or by making an ap-
peal to the public, a person surrenders such part of his personality
or privacy as pertains to and affects the position which he fills or
seeks to occupy, but no furtli<»r. If, therefoie, an association an-
nounces the project of placing a large statue of a private i)erson,
after her death, to be designated as the "T;v'pical Philanthropist," on
public exhibition, the relatives of such person may restrain such in-
vasion of privacy, although they suffer no pecuniary damages.***
Use of Property.
"By becoming a member of civilized society, I am compelled to
give up many of my natural rights, but I receive more than a com-
pensation from the surrender of exovy other man of the same right,
and the security, advantage, and ])rotection which tlie law gives me.
So, too, the general rules that I may have the exclusive and undisturb-
ed use and possession of my real estate, and that I must so use my
real estate as not to injure* my lUMghbor, are much modified by the
exigencies of the social stat(\'' *''" A blacksmith may operate his
i«« Columbia MiU Oo. v. Alcorn. l.'iO U. S. 4(J(). 14 Sr.p. Ct. lol. collecting?
United States oases at page 4(>o, l.")0 U. S., and i)ai?e ir>l, 14 Sup. Ct., and
commeuting on others.
i«7 C. F. Simmons Medicine Co. v. Mnnslield Drug Co., 5)3 Tenn. 84. 2:\ S.
W. 165. Et vide Fish Bros. Wajjon Co. v. I^i Belle Wagon Worlds, 82 Wis.
540, 52 N. W. 595; Meueely v. Meneely, 02 N. Y. 427; Rogers v. Taintor, 07
Mass. 291; Candee v. Deere, 54 111. 439.
188 Schuyler v. Curtis, 64 Ilun, 594, 19 N. Y. Supp. 264. Cf. Do May v.
Roberts, 46 Mich. 160. 0 N. W. 146. And see 10 Law T. 227. Pollard v. Pho-
tographic Co., 40 Ch. Div. 345: 7 Harv. Law Rev. 492; post. p. 356.
180 Karl, J., in Losee v. Buclianan, 51 N. Y. 476. 484.
148 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
forge/*® and a merchant his store,^"^ although his neighbor thereby
suffers annoyance. A man may rid his land of surface water, and
a neighbor may protect his land against it, in course of making rea-
sonable repairs to or use of his own premises, without liabilitj'; but,
beyond these limits, dealing with surface water will attach liabil-
ity.^«»»
It is convenient to postpone the consideration of just how far a
man may use his own without making him liable in tort
SAME— DISCIFLINABT POWERS.
49. The law recognizes disciplinary powers in private
persons and associations, and damages consequent
upon their reasonable exercise cannot be recovered.
Persons exercising quasi judicial powers, as the officers of uni-
versities, colleges, dubs, conmiittees, beneficial associaticms, corpora-
tions, and the like, are not liable for removing a man from office or
membership, or otherwise dealing with him to his disadvantage, pro-
viding (1) they act in good faith; (2) give him fair and sufficient
notice of his offense; (3) give him an opportunity of defending him-
self; (4) observe rules, if any, laid down by the statute, or the par-
ticuhir body to which they belong.^®' If these conditions are sat-
isfied, the court will not interfere, even if it tliinks the decision
wrong/®* The statute may give absolute discretionary power.^^*
An action for dam«ages. liowever, may be sustained for illegal expul-
sion. The fact that after expulsion the person was discharged
from the service in which he was employed will entitle him to dam-
ages. ^°^
180 Doellner v Tj-nan, 38 How. Pnic. (N. S.) 182; S^nith v. IngereoU-Ser-
pcaiit R(K'k Drill Co., 7 Misc. Kei). 374, 27 X. Y. Supi). 1)07, collecting cases.
101 :iIK;uire v. BlocMiiIiijjdale, 8 Misc. Rep. 478, 29 N. Y. Supp. 580.
102 Morrissey v. Chicago, B. & Q. U. Co., 38 Xeb. ICHJ, 5(> X. W. 94C,;
Anlieuaer-Busch Brewing Ass'n v. Peterson, 41 Xeb. S97, (JO X. W. 373.
loa Fraz. Torts (2(1 Ed.) 13; Loiibat v. Leroj', (m How. Prac. (X. Y.) 13.S:
Wachtel v. Xoah Widows & O. B. Si)C., 84 X. Y 28; Com. v. St Patrick's
Ben. Soc, 2 Bin. (l»a.) 441.
104 Dawkins v. Antrobus, 17 Ch. Div. G15.
10 5 Haynian v. Goveniors of Rugby School, L. R. 18 Eq. 28.
100 People V. Musical Mutual Pi-otective I'nlon, 118 X. Y. KH. 23 X. E. 129;
Ch. 2] PRIVATE ACTS. 140
Private persons soiiietiineR poasenH disciplinary powers, for the
reasonable exercise of which they are not liable in tort. Thus, the
master of a merchant ship may use summary force to preserve order
and discipline.**'* Parents, guardians, teachers, and, generally, per-
sons in loco parentis, may justify the enforcement of discipline, mod-
erate correction, detention, and the like, by plea of authority.^^*
SAME— BIGHTS OF NECESSITY.
60. There is no liability for acts or omissions as to TMrhich
a person has no option. ^^The rights of necessity
are a part of the law."***
Necessity may justify the destruction of property for the general
good. "For the commonwealth, a man shall suffer damage; as, for
saving a city or town, a house shall be plucked down if the next one
be on fire ; and a thing for the commonwealth any man may do with-
out being liable to an action." -"** A fortiori, peril to human life may
Ludowiski v. Polish Roman C. St. S. K. Ben. Soc, 29 Mo. App. ;i'{7; Inness
V. Wylie, 1 Car. & K. 257. But see Wood v. Wo<ld, L. K. D PLxch. 190:
Ashby V. White, 2 Ld. Uayiii. 938. Compare Ilardin v. Baptist Church, 51
Mich. 137, 16 N. AV. 311. As to expulsion of members of corporations and
societies, see 24 Am. Law Rev. 537. As to expulsion from clubs, see Com.
V. Union League of rhiladelphia, 135 Pa. St. 301, 19 Atl. 1030, clistinpuiRhiii?;
Kvans v. Philadelphia Club. 50 Pa. St. 107.
i»7 Per Lord Stowell in The Aglncourt, 1 UtiRg. Adm. 271-274.
198 Where a student of a school is guilty of contumacious conduct, it is
within the discretion of the faculty to refuse him his degree, and the fact
that the objectionable conduct occurred between the final examination and
the day of graduation is immaterial, ^'ot^^ithstanding the right to refuse a
contumacious student his degree, he is entitled to a certificate of attendance,
and that he passed a satisfactory examination. People v. New York Law
School (Sup.) 22 N. Y. Supp. 003.
109 Respublica v. Sparhawk, 1 Dall. 357-302; Mouse's Case, 12 Coke, 03;
Burton v. McClellan, 3 111. 4.'J4; American Print Works v. I^iwrence, 23 N.
J. I^w, 004.
20 0 Case of I'rerogative, 12 Coke, 13; Maleverer v. Spinke, Dyer, 30b; Mc-
Donald V. City of Red Wing, 13 Minn. 38 (Gil. 25); Bowditch v. Boston.,
101 U. S. 10; Metallic Compression Casting Co. v. Fitchburg R. Co., 109
Mass. 277; Hyde Park v. (Say, 120 Mass. 590; Surocco v. Geary, 3 Cal. 70;
American Print Works v. Lawrence, 23 N. J. I^aw, 590; Beach v. Tiiidgain,
2 Grat. (Va.) 219; Uale v. Lawrence. 23 N. J. Law. 590. And see Arundel
150 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
coiiBtitute such necessity as would excuse what would be otherwise
wroDgdoing. *1f/' said Lord Blackburn,"®^ "a house in which a per-
son ill of an infectious order lav bedridden took fire, and it was
neifessary to choose whether the sick j)erson .was to be left to perish
in the flames, or to be carried out through the crowd, at the risk,
or even at the certainty, of infecting some of them, no one could
sui)pose that those who carried out the sick person could be punish-
able; and probably a much less degree of necessity might form an
excuse." Similarly, in cases of negligence, one who imi)erils his
personal safety in the discharge of a duty like saving human life is
not prevented, because of such conduct as constituting contributory
negligence, from recovering damages done to him.-^'* On the same
principle, where a highway becomes obstructed and impassable from
temporary causes, as a snowdrift, a traveler has a right to go, ex-
tra viam, upon adjoining lands, without being guilty of trespass.-*^'
The authority of the master of a ship to use force for the preserva-
tion of discipline has also necessity for a basis.^®*
V. McCulloch, 10 Mass. 70; CampbeU v. Race, 7 Cush. (Mass.) 408; Jkfouse's
Case, 12 Coke, 63; Respublloa v. Sparhawk, 1 DaU. 357; Taylor v. Plymouth,
8 Mete. (Mass.) 462. As to statutory changes, see Fisher v. Boston, 104
Mass. 87.
201 Metropolitan Asylum Dist v. HUl, L. R. 6 App. Cas. 193-205.
202 Eckert v. Long Island R. Co., 43 N. Y. 502; Pennsylvania Co. v. Roney,
89 Ind. 453; Clark v. Famous Shoe & Clothing Co., 16 Mo. App. 4G3.
203 Donahoe r. Wabash, St. L. & P. Ry. Co., 83 Mo. 560; BuUard v. Harrison,
4 Maule & S. 387-393; Campbell v. Race, 7 Cush. (Mass.) 408; Burd. Lead.
Cas. 136. As to ways of necessity, see Bish. Xoncont. Law, 872; Vosseu v.
Dautel, 116 Mo. 379, 22 S. W. 734; Camp v. Whitman (N. J. Ch.) 26 Atl. 917;
Lankins y. Terwillijijer, 22 Or. 97. 29 Pac. 2(J8; post, p. 078, "Justincation of
Trespass."
204 Pol. Toils, 108; Bangs v. Little, 1 Ware, 500, Fed. Cas. No. 830; U. S.
V. Alden, 1 Spr. 95, Fed. Cas. No. 14,427; Cushman v. Ryan, 1 Story, 91, Fed.
Cas. No. 3,515; Turner's Case, 1 Ware, 83, Fed. Cas. No. 14.248: wns<iii v.
The Mary, Gilp. 31, Fed. Cas. No. 17,823; Miehaelson v. Denlson, 3 Day (Cr.nn.)
294; Brown v. Howard, 14 Johns. (N. Y.) 119; Sampson v. Smith, 15 Mass.
305; Flemming v. BaU, 1 Bay (S. C.) 3; Mathews v. Terry, 10 Conn. 455; State
V. Board of Education, 03 Wis. 234, 23 N. W. 102; Allen v. Hallet, 1 Abb.
Adm. 573; Payne v. Allen, 1 Spr. 3(>4, Fed. Cas. No. 10.855; Schelter v. York,
Crabbe, 449, Fed. Cas. No. 12,44(5; Jay v. Almy, 1 Woodb. & M. 262, Fed. Cas.
No. 7,236; Butler r. McLellan, 1 Ware, 219, Fed. Cas. No. 2,242; Buddin^rton
V. Smith, 13 Conn. 334.
Ch. 2] PRIVATE ACTS. lol
SAME— BIGHT OF PRIVATE DEFENSE.
61. The la^vr recognizes the right to repel unlaii^fal or
dangerous force by force, in the defense of person
and property or possession, Ti^henever there is a
real or an apparent necessity for the defense, hon-
estly believed to be real; but the acts of defense
must be confined to defense, and, in themselves,
reasonable, careful, and not excessive.
No action lies for damages done in conscMpionce of the ex(»reise of
the instinct common to all animate things, to protect themselves
and their own, within the limits of such private defense as is dt»ter-
mined by law. If a person, in lawful self-defense, tires a pistol at
ua assailant, and, missing him, wounds an innocent bystander, he
is not liable for the injury, if guilty of no negligence. ^^'^
In Laidlow v. Sage,^^' the defendant placed the plaintiff between
himself and impending danger from a bomb, and the plaintiff was
injured. The defendant's liability, it was held, depended on whether
the act of using the plaintiff as a shield was intentional, and did not
depend entirely on whether such act was voluntaiy, since a volun-
tary act may be instinctive, and therefore not intentional. In the
same way, the owner has the right to do anything that is apparently
and reasonably necessary to be done for the protection of his prop-
erty.*®^ Thus, the owner of a stack of hay may burn grass around
it, for the protection of his property, without liability for damages
consequent thereon.-^* Indeed, it may be a duty to light fire with
205 Morris V. Piatt, 32 Conn. 75; Paxton v. Boyer, 07 111. 132; Scott v. Shep-
herd, 2 W. Bl. 802; post, 433, "Assault and Batterj'." Ah to damage caused in
trying to avoid missile, see Vallo v. United States Kxp. Co., 1 47 Pa. ^ 404.
23 Atl. 5SH.
2o« Laldlaw v. Sage, 80 Hun, 5o0, 30 N. Y. Supp. 49G; 8 Ilarv. Law Rov.
22r», and 7 Harv. Law Rev. 315.
207 Walker v. Wetherbee, 05 X. II. (55(1, 23 Atl. (>2l, Doe, J., collecting
caseB at page 001, 05 N. H., and page 022, 23 Atl.
208 Brown v. Brooks (Wis.) 55 N. W. 395. 21 Lawy. Kop. Ann. 255. Et vide
note on "Fires/* Id. No liability for setting tiro to land of other, if due dili-
gence is used in setting out a fire. Hanlon v. Ingram, 3 Iowa, 80. See cases
152 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
flre.^®* So, whore the law provided that no fur-bearing animals
should be killed within certain periods, and within suck period a
person killed a mink which was about to destroy his geese, it was
held that such law did not interfere with the constitutional right
to defend property, and could not i)revent tlie killing of wild animals,
where tliere was ininiineut danger that they would destroy private
property.*^®
If there be actual necessity for exercise of right of defense, there
is full justification for its exercise to the extremity the cu'cum-
stances may demand. Tlius, where a dog was killed in the act of .
taking fish which had been hung up to drXy it was said: '*And his
property, whether fish or meat, in his cellar, in his kitchen, or in his
yard, it was lawful for him to preserve against any man*s dog; and,
if he could not otherwise protect it, he might kill the dog, when
caught on his premises, in the act of destruction. Whether he could
[not preserve his propc*rty and the customary use of it without de-
stroying the animal committing the depredation, when found in the
act, ought to have been submitted to the jury by the court, as a ques-
tion within its province to decide." ^^^ The mere fact that an animal
is committing a trespass does not justify killing or wantonly abusing
it.^^* But, to constitute the defense, the belief or apprehension of
danger must be founded on sufficient circumstances to authorize the
pro and con on page 82. As to absolute Habllity under statute, see Conn v.
May, ."^O Iowa, 241.
20 9 McKenna v. Baesslor. 80 Iowa, 197, 53 N. W. 103.
210 Aldiich V Wiight, 53 N. H. 398; Taylor v. Newman, 4 Doct. & Stud.
80. And see Pan-ott v. Hartsfleld, Id. 110; Hinckley v. Kmerson, 4 Cow.
(N. Y.) 351; BoiK'her v. Lntz, 13 Daly (N. Y.) liS; Dunning v. Bird, 24 111.
App. 270; LIpe v. Black welder, 25 lU. App. 119.
211 King V. Kline, 0 Pa. St. 318.
212 Johnson v. Tatterson, 14 Conn. 1; Ford v. Taggart, 4 Tex. 492; Tyner
V. Cory, 5 Ind. 216; Hobson v. PeiTy, 1 Hill (S. C.) 277; Clark v. KeliUer,
107 Mass. 40(5; Liverniore v. Batchelder, 141 Mass. 179, 5 N. E. 275; Sosat
T. State, 2 Ind. Apj). 58(5, 28 N. K. 1017. Where one perscui kills the dog oC
another, which has Ikhmi scared, and runs iu>on his premises, but has done
no injury, or was attempting to do none, but simply because the party killing
it suspects that the dog had previously Interrupted his hens' nests, such an
act is a trespass, for which the perpetrator Is liable. Brent v. Kimball, 00
111. 211-215. And see Hubbard v. Preston, IH) Mich. 221, 51 N. W. 209; Ten-
hopeu V. Walker, 90 Midi. 23U, 55 N. W. G57.
Ch. 2] PRIVATE ACTS. 1'33
opinion that the peril existed, and may at the time result in harni,-^'
and the standjud of ajiprehension is that of men of ordinal*}' tirm-
ness and reflection.***
The justification of damages consequent upon the exercisi* of the
I'ight of self-defense depends upon the consid(»ration whether the
right was exercised in a reasonabh? nuinner, in view of all the cir-
cumstances of the case.^*** It is impossible to establish an ironclad
rule of law that will meet the exigencies of any case that may pos-
sibly arise. Self-defense does not include the active assertion of a
disputed right against an attempt to obstruct its exercise.'^*" Ex-
cessive defense of the person may become an assault and battery.^*'
So, in defense of property, as in the case of the defense of domestic
animals from the attacks of other animals, the relative value of the
animals may be proper for the jnvy to consider, in arriving at a con-
clusion whether the def(*ns(» was a reasonable one und(»r the circum-
stances.^^* And where a dog has been once driven away from a hen-
hou.^e, and was again running towards it, the plaintiff was not jus-
tified in killing the dog.*^*^ So, negligently starting or keeping a
an Kippy v. State, 2 Head (Tetiii.) 217; Stnti» v. Brysnii, 2 Winst. I^w
iX. C.) 8G.
211 Woolf V. Chalker, 31 Conn. 121; Credit v. Brown, 10 .lohns. (N. Y.) 30,";
Putnam t. Payne, lo .Tohns. (X. Y.) 311; MaxweU v. Palmerton, 21 Wend.
(X. Y.) 407. As to statutory alteration of the light, see Si)nlsht v. McGoveni,
IG R. I. 658, 19 Atl. 240.
215 Where cattle are trespassinjr upon the premises of a party, he, and
also the members of his family, have the undoubted right to use all reasona-
ble means and sufficient force to remove them; and there is nothing illegal
in driving .such cattle from the premises with dogs, if no unnecessaiT injury
is done to the stock. Spray v. Ammernian, (50 111. 309.
216 Pol. Torts, c. 4, subd. 12; Id. (Webb's Ed.), and cases cited In note
p. 203.
217 Post, 442. "Assault and Battery."
2i*»Cooley, Torts, :i4(»; Anderson v. Smith, 7 111. App. 354; Simmonds v.
Holmes, 01 Conn. 1, 23 Atl. 702; ParnUt v. Haitstield, 4 Dev. & B. (N. C.)
110; Hinckley v. Emerson, 4 Cow. (N. Y.) S.'il; Boecher v. Lutz, 13 Daly
(N. Y.) 28; Dunning v. Bird, 24 lU. App. 270; Lipe v. Blackwelder, 25 111.
App. 12:1
^i» Llvermore v. Batchelder, 141 Mass. 179, 5 N. E. 275; Burd, Lead. Cas.
141. Cf. Marshall v. Blackshire, 44 Iowa, 475; Hinckley v. Emerson, 4 Cow.
351. One is not Justified in killing a valuable dog, without notice to the
4iwuer, merely because the dog barks annind his house at night, or clmnces
154 VARIATIONS IN THE NORMAL RIGHT TO SUK. [Ch. 2
back fire to defend against a fire already existing will attach liabil-
ity."«
VARIATIONS BASED ON STATUS.
62. Under this head will be considered the liability of —
(a) Natural persons, including
(1) Insane persons;
(2) Infants;
(3) Drunkards;
(4) Convicts;
(6) Alien enemies.
(b) Artificial persons, including
(1) Private corporations;
(2) Municipal and quasi municipal corporations;
(3) Corporations not municipal engaged in public
works.
SAME— INSANE PERSONS.
63. Generally, an insane person is liable for his torts, to
the extent of compensation for the actual loss sus-
tained by the injured party; but when the wrong
involves personal capacity, and such capacity is
impossible, because of mental fl^rangement, there
can be no recovery.^
on one occasion to leave some tracks on a freshly-iwiinted porch, or to have
been detected In the henhouse, but not, however, doing any mischief. Bowers
V. Horen, 03 Mich. 420, 53 N. W. 535; Cooley, Torts, § 347, note 4, collecting
the various authorities and statutes as to injurj- by dojrs. Bish. Noncont.
Law contains a chapter (53) "Specially of Dogs." In the absence of the stat-
ute, killing a trespassing animal has often been held unjustifiable. Johnson
V. Patterson, 14 Conn. 1; Ford v. Taggart, 4 Tex. 41)2; Tyner v. Corj-, 5 Ind.
21G; Hobson v. Periy, 1 Hill (S. C.) 27T.
2 20 Back lire negligently set attaches liability for such property as would
not have Imhui destroyed by original fire. McKenna v. Baessler, 86 Iowa, 197,
53 N. W. 103.
2 22 As to natui'e of various kinds of mental derangement, see Hiett v.
ShuU, 30 W. Va. 5(a, 15 S. E. 146; Snyder v. Snyder, 142 III. GO, 31 N. E.
303; Brower v. Fisher, 4 Johns. Ch. (X. Y.) 441.
Ch. 2] VARIATIONS BASED ON STATUS. 155
Absolute lAnhUltj/.
The view of the law which held that men acted at their peril, and
that liability for tortious conduct was absolute, logically recognized
that so long a>3 a duty was violated, and harm ensued, it was imma-
terial whether the damage was due to an accident, or to a i)erson
incapable of reason. Thus, it was said in Weaver v. Ward: -^^ "If
a lunatic hurt a man, he shall be answerable in trespass." It was
an easy step from this to the general position that an insane person
is univei:sally liable for torts. Tlie leasoning is further justified by
the suggestion that hucIi a ruling accords with public policy, recog-
nized and enforced by the law to promote the general welfare, and
to avoid escape from liability by use of s|)ecious pretense of mental
incompetency,^-* and to apply the rule that, where one of two inno-
cent persons must bear a loss, he must l)(*ar it whose act caused it
It is manifest that this reasoning ignores any analysis into the basis
of liabilitvintort."'*
Therefore destruction of property held by a lunatic as bailee,
though the bailor knew of his mental condition at the time of de-
livery of goods, makes the demented person responsible; as where a
lunatic killed an ox.=^° An insane person has been held liable in
tort for causing death to another by an act which would have been
felonious, except for the insanity.^ -^ An action of false imprison-
ment has been sustained against a lunatic, who, in his capacity as
2 28 Hob. 134. Further, as to negligent use of infant's property by agent,
see Harding v. Larnetl, 4 Allen (Mass.) 42G; Harding v. Weld, 128 MasB.
587; Gross, J., In Lea me v. Bray, 3 East, 51)3. 000. And see Holmes, Com.
Law, 81, 8?; Bevin, Xeg. 15; 1 Hale, P. C. 15; 1 Hawk. P. C. c. 1, § 5;
Bac. Abr. tit. "Idiots," etc., D, K.
224 Cooley, Torts. § 100.
22 5 See Busw. Insan. § 355; Cooley, Torts, pp. 1)8, 100; Reeve, Dom. Rel.
p. 38C, cited by Earl, J., in Williams v. Hays, 143 N. Y. 442, 38 N. B. 449.
220 Morse v. Crawford, 17 Vt. 499. Et vide Cross v. Andrews, 2 Cro. Eliz.
022, case 13; Jewell v. Colby (N. H.) 24 Atl. 902; In re Heller, 3 Paige (N. Y.)
199; Williams v. Cameron, 2G Barb. (N. Y.) 172; Lancaster Bank v. Moore,
78 Pa. St. 407-412.
227 jeweU V. Colby, supra; Mclntyre v. Sholty, 121 111. CCO, 13 N. E. 239;
affirmed 24 111. App. G05. Insanity is no defense to assault. Taggard v.
Innes, 12 U. C. C. P. 77. And see Ward v. Conatser, 4 Baxt. (Tenn.) 64.
156 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
justice of the peace, caused plaintiff to be wrongfully arrested.'^**
Insanity is no defc^nse to an action for trespass to real estate,"'*
Qualified Liability.
It is urged with great force, with the result of at least partial
acceptance, that this conception is too radical. The early cases on
accidental trespass have not been universjilly followed. It is insist-
ed that they M^ere unsound in reason,^*** and that, so far as their
actual enunciation of the law is concerned, they are not authority
for the position they are cited to sustain.-^^ The public policy of
the law justifies inquiry into the degree of mental derangement in
crimes and contracts; so that this very argument seems to show
that the same practice should apply to the law of torts.
It maj', perhaps, clarify the condition to consider the liability of
a lunatic with reference to the various ways in which liability for
torts may attach."^" With respect to liability for i)ersonal commis-
sion, it is denied that an insane person can be a legal cause,
228 Kroin V. Sclioon maker, 3 Barb. (X. Y.) 047; Crot;Ke v. Kent, 32 Md. 581;
Ward v. Conatser, supra; Mcliityre v. Sbolty, 121 111. (MK). 13 N. E. Zii);
.lackson v. Kiiijf, 15 Am. Dec. 308, note; (Jatos v. Miles. 3 Conn. C4r-70;
Amick V. O'Hara, 6 Blackf. (Ind.) 258, 250. Contra, Sedg. Dam. § 456.
229 Amick V. O'Hara, supra; Weaver v. Ward, Hob. 134; Haycraft v.
Creasy, 2 East, 92. lu aii action by the guardiau of a person uod compos
mentis to recover for au assault ui)ou bis ward, iu which defendant an-
swered that such person had eutered his garden, and was picking his
flowers, it was not misleading to charge that, if plaintiff's ward was weak
iu mind, *'he should not," as a matter of law, **be held to the same sti'ict-
uess*' in doing what he did "as a peraou mentally sound would be"; the jury
having also been charged that he had no right to enter the garden, and that
4lefendant could have used reasonably necessary force In putting him out.
<'liapeU V. Schmidt, 104 Cal. 511, 38 Pac. 81>2.
23 0 It is insisted that the reason for liability assigned by the court in
AVeaver v. Wnrd Is very strong ground for the* absence of liability. I'lu.
Torts.
281 While there are many" dicta to the effect in England (sec Bac. Abr.
"Trespass," O; Maxims Reg. 7, note; 2 Rolle, Abr. 547; Weaver v. Ward,
Hob. 134; Haycraft v. Creasy, 2 East, 1)2-104), it is said, on good authority,
that there is no reported instance of an action for tort ever having been
brought in England against a lunatic. Clerk & L. Torts, 33. Query, is not
Cross V. Andrews, 2 Cro. P^iiz. 022, such a caseV
232 Ante. p. 37.
Ch. 2] VARIATIOXS BASED ON STATUS. 157
and inslifted that injuries attributable to such a person are really
due to inevitable accident, or the act of God, for which no action
lies. Therefore, it would seem tliat an irresponsible defendant
cannot l)e held liable for negligent personal conduct.*'*
It would certainly seem reasonable to recognize this principle in
that class of cases in which the mental attitude of the wrongdoer
is an essential ingredient. Thus, where malice is a nec^sary ele-
ment, an idiot can be guilty of the malice of a brute, but not of a
sentient creature. Hence, it has been held that insanity will pre-
clude responsibility for slander. Tlie distinction is recognized more
clearly by text writers than by decisions.--'* Much the same prac-
tical result is reached by making insanity a substantial defense by
minimizing the amount of damage recoverable. ^''^
The consideration that a person may be deranged, and still be
sufficiently rational to be held responsible for his acts, like any
other person, does not seem to have attracted as much attention as
it deserves. Proof that an habitual drunkard or a lunatic had judg-
ment and memory enough to understand what he was doing should
be sufficient to sustain his contract or act.*'* It is insisted with
good reason that limitation on responsibility for tort based on in-
sanity should apply only to persons so far deranged as to be inca-
23.iwiiart. Xeg. f 88; Sedp. Dam. 4,15; 16 Am. & Eug. Enc. Law, tit.
"Xeff licence"; post, p. 871, "Xojriijfeiu-e." But In Williams v. Ila.vR (1894)
143 N. Y. 442, 38 X. K. 440, it is distinctly liehl that for the nci;llBence as
well as for the active tort of an insane person, resulting in damage to
others, his insanity constitutes no defense. The insanity of one who Is the
owner pro hae vice of a vessel does not relieve him from liability to the
other owners for negligence in her management; at least, unless his in-
sanity is pro<luce<l wholly by eflfoits in behalf of the vessel. As to injuries
to an insane pei-son. see Willetts v. Railroad Co., 14 Barb. (X. Y.) 38o; Texas
& P. Ky. Co. V. Bailey. STJ Tex. 11>, IS S. W. 481.
234 Pol. Torts, § 4(5; Cooley, Torts, § KKJ; Bish. Xoncont. Law, ."iO.'.: Townsh.
Sland. & L. § 218; Gates v. Mertxlith, 7 Ind. 440; Bryant v. Jackson, (J
Humph. IJU) (but see Ward v. Conatser, 4 Baxt. ITenn.] (U); Yeates v. Reed, 4
Blackf. 4(5^; Horner v. Marshall. 5 Munf. 4CC.
23 6 Dickinson v. Barber, 1) Mass. 225.
23« Noel V. Karper, 53 Pa. St 97; In re Black's Estate, 132 Pa. St. 134,
19 Atl. 3L
158 VARIATIONS IN THE NORMAL RIGHT TO SHE. [Ch. 2
pable of committing a voluntary act; tlmt is, the derangement must
extend so far as to make intent impossible.^^^
On the other hand, if liability attaches because of relationship or
instrumentalities, no personal fault or capacity is involved. There
would not seem to be any reason why a lunatic should not be held
responsible as a Scine man. It iis generally recognized that a lunatic
is liable iy;ider circumstances which would attach liability to a per-
son compos mentis in the management of property. Thus, liability
extends to injury occasioned by defective condition of a building
belonging to an insane person, for the care and management of
whose estate a guardian has been appointed.^'*
Only Actual Damages Recoverable.
Tn no case can more than .actual damages be asserted against a
person non compos. If greater damages, as vindictive or punitive
damages, be sought, on account of the intent or motive of the de-
fendant, insanity is a good defense, as an insane person has no will
nor motive, and the measure of damages is compensatory.
289
V
SAME— INFANTS.
64. Infants are generally liable in la'w for their torts in
no wise connected with contract. They can neither
escape liability because commanded by another to
do wrong, nor create liability on their own part by
authorizing or adopting the commission of the tort
of another person.
64a. Tenderness of age, in proportion as it affects capacity
to act intelligently, may be material to their lia-
bility, when intention to do wrong, or want of
care, is an essential ingredient of the injury.
28 7 Pig. Torts, c. 7. As to Krona v. Schoonmaker, 3 Barb. G47, it is to be
"presumed tbat the extent of the insanity Avas not great." Clerk & L. Torts,
p. 34, note a. The defense in Cross v. Andrews, li Cro. Eliz. (522, was that de-
fendant was sick and non compos.
23 s Zilorain v. Devlin, 132 Mass. ST; Belirens v. McKenzie, 23 Iowa, 333-^3i).
230 Avery v. Wilson, 20 Fed. StlO-SoS; Krom v. Schoonmaker, 3 Barb. (>4T;
Ch. 2] VARIATIONS BASED ON STATUS. 159
laftincy OrdinarUy no Defensie.
The law with resjiect to liability of infants has proceeded rather
<»n the theory of compensating the injured than of consistently main-
tainin<r any lof»:ieal doctrine as to the mental attitude of the wrong-
doer, and of basing the responsibility on the wrongful intention or
iuadvcrtence. The cases proceed on the projiriety of holding all
persons liable for actual damages committed by them, and of ignor-
ing volition as a necessary element of a juridical cause. "If an in-
fant commit an assault or utter slander, God forbid that he should
not be answerable for it in Ji court of justice." -*^ Thus, an infant
is liable in tresjiass to the ext(»nt of compensatory damages, as for
breaking down and d(\stroying shrubbery,*** or in assault.*** A minor
is liable in damages for seduction,**^ even under promise of mar-
riage, or for bastardy; *** also, in trover; ***^ also, liable in case, for
negligently handling a gun,*** or exploding firecrackers, causing a
Dickinson v. Barber. 9 Mns^. 2i:ri; McDouffald v. Cowan, 95 N. C. .S(;S:
Jewell V. Colby. 24 Atl. 902; Ward v. Conatser, 4 Baxt. (Tenn.) 64; Mclntyre
V. Sholty, 121 in. GOO, 13 N. E. 239.
2*0 Lord Kenyon in Jennings v. Itundall, 8 Term R. 335. Binsr. Inf. 110;
Scott V. Watson, 74 Am. Dec. 457. Cf. Campbell v. Stakes, 2 Wend. 137.
241 Huchting v. Engel, 17 Wis. 237.
242 Peterson v. Haffner, 59 Ind. 130; Campbell v. Stakes, 2 Wend. 137.
And see Paul v. Hummel, 97 Am. Dec. 3S1; Conway v. Uoed, 27 Am. Rep.
354; Baker v. Lovett, 4 Am. Deo. 88.
243 Yi-y V. Leslie, 87 Va. 2<i9, 12 S. E. 671; Becker v. :Mnson, 93 Mich. 33«»,
53 N. W. 361; Lee v. Iletley, 21 Ind. 9N. Allhuiigli lie is not liable for
breach of promise inducing seduction. Lciditweiss v. Tieskow, 21 Ilun, 487;
Hamilton v. Lomax, 2(> Barb. (515.
244 Chandler v. Com., 4 Mete. (Ky.) (>G.
245 p^reeman v. Boland, 14 U. I. :;i); Kay v. Tubbs, 2S Am. Rep. 5J9; Towne
V. Wiley, 50 Am. Dec. 85; Vasse v. Smith, 6 Crauch, 226; Oliver v. McClellan,
21 Ala. 675; Peigne v. Sutclife, 17 Am. Dec. 75(i; Asliloek v. ViveU. 29 111.
App. 388; Lewis v. Littlefleld, 15 Me. 2;J3; Homer- v. Thwing, 3 Pick. (Mass.)
492; Walker v. Davis, 1 Gray, 506; ^\ heeler & Wilson Manuf'g Co. v.
Jacobs, 2 Misc. Rep. 23(5, 21 X. Y. Supp. 1006; Green v. Sperry, 16 Vt. 390;
Baxter v. Bush, 29 Vt. 465; Mills v. Graham, 1 Bos. & P. N. R. 140; Bristow v.
i:nstman, 1 Esp. 172; West v. Moore, 14 Vt 447; Campbell v. Perkins, 8
N. Y. 430.
ii4« Conway v. Reed, 66 Mo. 346.
160 VAUIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
horse's deatb,^*^ or for negligence in connection with his property in
his agent's hands.^*^
The authority of parent is no excuse for the commission of a tres-
pass by a child.^*° Liability of a parent for the tort of a child is
governed by the ordinaiy principles of liability of a principal for the
acts of his agent, or a master for his servant. It does not arise out
of a mere relation of parent and child.^^® Infants cannot empower
an agent or attornev to act for them, nor affirm what another mav
have assumed to do on their account.^^^ They cannot be held liable
for "torts by prior or subsequent assent, but only for their own
act.- 2.2
Tenclern€><ii of Age as a Defense,
In certain classes of cases, however, the inability of very young
infants to be intelligent actors, and therefore their inability to ju-
dicially cause a wrong, has been recognized. In such cases the
wrong is considered due to unavoidable accident.^^^ And where
malice is a necessary element an infant may or may not be liable,
according as his age and capacity may justify imputing malice to
2*7 Conklin v. Thompson, 29 Barb. U18. And, generaUy, see, Reeves, Doni.
Uel. 258; 2 Kent, Comni. 241; Mauj;an v. AUeiton, L. R. 1 Exch. 239; Hughes
V. Macfle, 2 Hurl. & C. 244; Schmidt v. Kansas City Distillinff Co., 90 Mo.
2Hi, 1 S. W. 805, and 2 S. W. 417.
2*8 Harding v. Larned, 4 AUcu, 420; Harding v. Weld, 128 Mass. 587.
240 Humphrey v. Douglass, 10 Vt. 71; Scott v. Watson, 40 Me. 302; Huchtlng
V. Enwel, 17 Wis. 237; School Dist. v. Bragdou, 23 X. H. 507; Wilson v.
GaiTard, 59 111. 51.
260 Tifft V. Tifft, 4 Denio (N. Y.) 175; Smith v. Davenport. 45 Kan. 423, 25
rac. 851; Chandler v. Deaton, 37 Tex. 4(K»; Wilson v. Garrard, supra; Baker
V. Morris, 3,3 Kan. 580, 7 Pac. 207. Cf. Sclilossbci-g v. Lahr, 00 How. Prac.
(N. Y.) 450, with Schaefor v. Osterbrlnk, 07 Wis. 495, 30 N. W. 922. And see
Strohl V. Levan, 39 Pa. St. 177.
251 Whitney v. Dutch, 14 Mass. 457; Knox v. Fla<'k, 22 Pa. St. 337; Rob-
bins V. Mount. 4 Rob. (N\ Y.) 553; Armitage v. Widoe, 30 Mich. 124. But
see Sikes v. Johnson, 10 Mass. 389.
252 Co. Litt. 180b, note; Buniham v. Seaverns, 101 Mass. 3(50; Bobbins
V. Mount, 33 How. Prac. (N. Y.) 24; Cunningham v. Railway Co., 77 111. 178.
Sed vide Sikes v. Johnson, 10 ^lass. :^9; Smith v. Kron, 0 N. C. 392-398.
253 Bullock V. Babcock, 3 Wend. (N. Y.) 391; Ames & S. Torts, 30; Whart.
Nog. § 88.
^1*- *^] VARIATIONS BASED ON STATUS. 161
him, or may preclude the idea of his indalging it*** Howeyer, in-
fants have been held liable for fraads,''^ deceit,*'* and for slan-
der.**^ Extreme youth may excuse a child from the exercise of
ordinary care, when it is the plaintiff. Thus, a child 3^ years old
was run over on the highway by a cart; it could recover, although
a grown person, under the circumstances, might not have succeeded
in such an action. Liability is graduated to capacity.**' The line
is often a fine one.***
To summarize: ^ach of three different rules has found judicial
sanction. One rule requires of children the same standard of care,
judgment, and discretion in anticipating and avoiding injury as
adults are bound to exercise. Another wholly exempts small chil-
dren from the doctrine of contributory negligence. Between these
extremes, a third and more reasonable rule has grown into favor,
and is now supported by the great weight of authority, which is
that a child is held to' no greater care than is usually exercised by
children of the same age." ***
66. Infants, not being liable for their contracts, cannot be
elected into responsibility by being sued ex delicto
on a cause of action really ex. contractu, where the
law allows choice of form of action. The test of
*whether an action lies against an infant, under
such circumstances, is whether the infant has done
«54 Cooley, Torts; Johnson v. Pie, 1 Sid. 258.
»5» Barham T. TurbeylUe, 57 Am. Dec. 782; Wallace v. Mores, 5 Hill (N. Y.)
391; Badger. V. rbinney, 15 Mass. 359; Rice v. Boyer, 106 Ind. 472, 9 N. E.
420; Catts y. Phalen, 2 How. (U. S.) 37&-382. As to an infant partner, see
Kemp V. Cook, 79 Am. Dec. 681.
a«« Fitts V. HaU; 9 N. H. 441; Word v. Vance, 1 Nott & McC. (S. O.) 197.
«87 Defries v. Darls, 1 BIng. N. O. 692; Hodsman v. Grissel, Noy, 129.
«tt8 Gardner v. Grace, 1 Post. & P. 359; Chicago & A. Ry. Co. v. Gregory, 58
HI. 226; Railroad Co.. V. Gladmon, 15 Wall. 401; Chicago City Ry. Co. v.
Wilcox, 138 111. 370, 27 N. E. 899; Neall v. Glllett, 23 Conn. 437.
969 Lay V. Midland Ry. Co., 34 Law T. (N. S.) 30; Lynch v. Nurdln, 1 Q.
B. 29, o6. ... I . I -
s«o Williams,: J., In Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St. 283/
20 N. B. 466. And. see Stone v. Dry-Dock, B. B. & B..R* Co., 115 N. Y. 104,
21 N. B. 712; post, p. 871, "Negligence"; •'Capacity of Parties." »
LAW OF TORTS — 11
162 VXKIATION8 IN TUK NORMAL BIGHT TO SUK. [Ch. 2
anything in exoesB of mere violation of a oontraot,
and in breach of duty which the law has created or
anperinduoed upon the contract. They may, how-
ever, in some cases, be sued ex contractu for cause
of action ex delicto.
Election of KeniedieB — Tori or Contract.
The technicalities of common-law forms of action, as has already
been shown, in many cases gave an election to the plaintiff to sue
ex contractu or ex delicto. Where the wrong is both a tort and a
breach of contract, this right of choice arises. When a cause of
action against an infant is really founded upon contract, the plain-
tiff cannot avoid the defense of infancy by framing his action in
tort. Oreat difficulty arises in ascertaining and agreeing upon some
definite test of when the substantial cause of action is tort, and not
contract, without reasoning in a circle. The language of the text
is the distinction as formulated by Mr. Bishop.'*^ Mr. Piggott sug-
gests the rule, ''Where the substantial ground of action rests on
promises, the plaintiff cannot, by changing his form of action, render
a person liable who would not have been liable on his promise." '*^
In the application of this not very definite standard, even since the
courts have escaped mere distinction of pleading, and have regarded
more the substantial rights of parties, there does not seem to be any
satisfactory consistency. The actual cases usually arise with re-
spect to the contract of bailment, or in matters involving fraud.
Same — BailmenL
If infant bailee does any willful or positive act, amounting to an
election on his part to disaffirm the contract, or to convert the prop*
erty to his own use, or if he wantonly and intentionally commits a
trespass, his infancy is no protection. Thus, infancy is a bar to
an action by an owner against his supercargo for breach of instruc-
tions, but not to an action of trover for goods delivered to the infant
under contract, even if not actually converted to his own use. A
s«i Bish. Noncont Law, H 500, 507.
262 Pig. Torts, 43. This does not differ materially from the test proposed
by Mr. Wallace in note to Vasse v. Smith, 1 Am. Lead. Cas. 230, or by Mr.
Bwell in bis note to Qilson y. Spear, Ewell, Lead. Oas. 201, or by Mr. Bl^elow
on Fraud, 216-218.
^J^- 2] VAKIATION8 BA8KD ON STATUS. 163
fortiori, an infant is liable if he conrert property to his own ase.'*'
There is much difference of opinion as to the circamstanoea under
which, and in what form of action, an infant is liable for the abuse
of, or use contrary to terms of the contract of hiring, a horse. Using
the horse for a purpose not contemplated by contract, or abusing
the animal, has been regarded as a trespass so far independent of
contract as to giye a cause of action ex delicto, to which infancy is
no defense. Thus, where a boy hired a horse unfit, and agreed not
to be used, for leaping, and allowed his friend to jump the animal
to its death, an action ex delicto was -sustained.**^ lliis would
seem to be the proper view. In Pennsylvania, on the other hand,
it has been insisted that, even if the horse were killed, the infant
would not be liable.'*' In a leading New Hampshire case it was
held that an infant could not be held liable for failure to drive skill-
fully, but that he can be held if he kills the horse by positive tortious
act"*
Same — Fraud,
As to liability of infants for fraud, if an infant, at the time of
obtaining goods, fraudulently concealed his minority, the vendor
may rescind the contract, and recover the goods sold.**^ But if,
before the discovery of the fraud, the infant sold the goods, the
vendor is without remedy. He cannot recover the goods, for they are
s«» Vasse T. Smith, 6 Craoch, 226; Wheeler & Wilson Manafg Ck>. v. Jacohs
(Com. PI. N. Y.) 21 N. Y. Supp. 1006; Peigne v. Sutcllffe, 4 McOord (S. G.) 887;
Moore v. ISastman, 1 Hun, 578; Root v. Htevenson, 24 Ind. 115.
2«4 Bumard y. BAgglB, 14 O. B. (N. S.) 45; HaU v. Ck>rcoran, 107 Mass. 251;
Raj y. Tubb0« 28 Am. Rep. 510; Green v. Bperry, 16 Vt. 390; Rice v. Boyer,
108 Ind. 472, 9 N. B« 420; Freeman v. BoUind, 14 R. I. 39; Campbell v. Stakes,
2 Wend. (N. Y.) 137; Woodman y. Hubbard, 25 N. H. 73; Fish v. Ferris, 5
Duer (N. Y.) 49; Homer y. Thwlng, 3 Pick. (Mass.) 492; Towne y. Wiley, 23
Vt 365; Moore v. Eastman. 1 Hun, 578; Cooley, Torts, ♦p. 109; Story, Sales,
28; 1 Pars. Cont 316; Bbh. Cont. 901.
295 Penrose v. Curren. 3 Rawle (Pa.) 351; Kwell. I^ead. Cas. 191; Wilt v.
Welsh, 6 Watts (Pa.) 9.
<«• Eaton y. Hill, 50 N. H. 235. Et vide JeuningB v. Rundall, 8 Term R.
837; Schenk v. Strong, 4 N. J. Law, 97; Lewis v. Littlefleld, 15 Me. 233.
««T Badger y. Phinney, 15 Mass. 369; Mills v. Graham, 1 Bos. & P. (N. R.)
140; Nolan y. .Tones, 53 Iowa, 387, 5 N. W. 572; Neff y. Landia, 110 Pa. St.
204, 1 Aa 177.
164 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
gone; he cannot sue in deceit, for damages, for that would be, in
substance, a means of enforcing the contract to pay the price.***
A bailor induced to make the contract of bailment by fraud of in-
fant cannot recover his goods until the agreed term of bailment
expires, or the bailment ceases by some act of infant so violating the
contract as to determine it; as where the infant pledges goods.'*^
An infant may take advantage of his own fraud, so far that an ac-
tion of deceit cannot be maintained against him for his fraudulent
misrepresentations made in a sale, for example, of a horse, even
though the vendee may have tendered back the horse^ and demanded
back the purchase money.*^^ That an infant induced a contract by
fraudulent representation as to his beimg of age, or as to other mat-
ters, does not deprive him of the defense of his infancy; and bring-
ing the action for damages, in deceit, instead of on the contract^
does not enable the deceived person to succeed in his litigation.'^ ^
But the opinions are not unanimous on this point.' ^*
>•• Johnson v. Pie, 1 Sid. 258; Price v. Hewett, 8 Exch. 146; Mustard v.
Wohlford, 15 Grat. (Ya.) 329; Manning v. Johnson, 26 Ala. 446.
s«» Reg. y. McDonald, 15 Q. B. Div. 323, 325; Manby v. Scott, 1 Sid. 109.
270 GUson V. Spear, 38 Vt. 311; Nash v. Jewett, 61 Vt 501. 18 Ati, 47;
EweU, Lead. Gas. 201; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420; Shirk v.
Shultz, 113 Ind. 571, 15 N. E. 12; West v. Moore, 14 Vt. 447. But see, on
the other hand, Word v. Vance, 1 Nott & MeO. (S. C.) 197; Fitts v. Hall, 9
N. H. 441. This case will be found discussed in Burley v. Russell, 10 N. H.
184; 1 Am. Lead. Gas. p. 280, note to Tucker v. Mbrelahd; Gooley, Torts, ♦?.
110; 1 Pars. Cont (5th Ed.) 318. And see Gaunt v. Taylor (Sup.) 15 N. Y,
Supp. 589; Manning v. Johnson, 26 Ala. 446.
S71 Gonrad y. Lane, 26 Minn. 389, 4 N. W. 695; .Johnson v. Pie, 1 Keb,
913; Milard ▼. Hobick, 110 lU. 16; Groye y. Neyill, Id. 778; C^nnam y.
Farmer, 3 Exch. 698; Price y. Hewett, 8 Exch. 146; Liyerpool Adelphi Loan
Ass'n y. Fairhurst. 9 Exch. 422; Wright y. Leonard, 11 G. B. (N. S.) 258;
De Roo y. Foster. 12 G. B. (N. S.) 272; Bartlett y. Wells, 1 Best & S.
836; Nash v.'Jewett, 61 Vt 501, 18 Atl, 47; McKamy y. Gooper, 81 (3a,
679, 8 S. E. 312; Sims y. Everhardt, 102 U. S. 300; Whitcomb y. Joslyn,.
51 Vt. 79; Burley y. Russell, 10 N. H. 184; Merriam y. Gunningham, 11
Gush. (Mass.) 40; Earl of Buckinghamshire y. Drury, 2 Eden, 72; Beckett
*T2 Harseim y. Gohen (Tex. Glv. App.) 25 S. W. 977; Burley y. Russell, 34
Am. Dec. 146; itice V. Boyer (Ind. Sup.) 9 N. E. 420; Dillon y. Burnham,.
43 Kan. 77. 22 Pac. 1016. And see Bradshaw y. Van Winkle, 133 Ind. 13tr
32 N. B. 877; Lacy v. Pixler (Mo. Sup.) 25 S. W. 206.
^- 2] .VAKIATIOXS BASED ON STATUS. 165
Same — Election to Sue in Assumpsit.
An infant may, however, be sued ex contractu, in assumpsit, for
a cause of action really ex delicto. Thus, if he convert the property
of another, the latter can recover in assumpsit. This serves to show
that the action of assumpsit still retains traces of the ex delicto
character of its origin."* ^
SAME-^DBUNKABDS.
£6. Drunkards are liable for all damages committed by
them. Their "conditioxi may, however, mitigate
damages, and, when it amounts to insanity, per-
haps operate as a full defense, as far as Insanity is
a defense to an action in tort.
While the acts of a drunkard are often involuntary, his condition
is generally due to a voluntary act, and his acts become voluntary
by reflection. ^^Drunkenness is no excuse to a crime. It cannot
justify a tort. The making a beast of one's self may be likened to
the keeping of a beast; and, as in some cases the scienter is pre-
sumed, so it will be presumed that a man knows that if he gets
drunk he will be likely to commit acts which will produce injury
to other people." *^* Therefore, if a drunken man say to another,
V. CJordley. 1 Brown. Ch. 35^-358; Nelson v. Stocker, 4 De Gex & J. 458;
Cory V. Gertcken, 2 Madd. 40. See, further, Conroe v. BirdsaH, 1 Johns. Gas.
127; Cnrtin v. Patton, 11 Serg. & R. (Pa.) 305, 309; Stoolfoos v. Jenkins. 12
Serg. & R. (Pa.) 399, 403; Keen v. Oloman. 39 Pa. St. 299; StudweU v.
Shapter, 54 N. Y. 249; Mathews v. Cowan, 59 111. 341; Densmore v. Cowan,
Id. 347.
, «78 Shaw V. Coffin, 58 Me. 2.54; Elwell v. Martin, 32 Vt 217; Mung» v.
Hess, 28 Barb. (N. Y.) 75.
274 pj^. Torts, §§ 21G, 217; McKee v. Ingalls, 5 111. 30; Alger v. Lowell, 3
AUen (Mass.) 402; Welty.v. Indianapolis & V. R. Co., 105 Ind. 65, 4 N. E.
410; Hubbard v. Town of Mason City, 60 Iowa, 400, 14 N. W. 772; O'Hagan
V. Dillon, 42 N. Y. Spper. Ct. 456; Illinois Cent. R. CJo. v. Cragln. 71 lU. 177;
Cramer v. Burlington, 42 Iowa, 315; Smith v. New York Cent. & H. R. R.
Co., 38 Hun, 33; Little Rock Ry. v. Pankhurst, 36 Ark- 371; Monk v. Town
of New Utrecht, 104 N. Y. 552, 11 N. E. 208; East Tenn^see & W. R. Co. v.
Winters, 85 Tenii. 240, 1 S. W. 790; Barbee v. Reese, 60 Miss. 906; Sullivan
V. Murphy, 2 Miles (Pa.) 29S. As to standard of drunkenness, see Standard
Life & Ace. Ins. Co. v. Jones, 94 Ala. 434, 10 South. 530. , .
166 VARIATIONS IN TH£ NORMAL RIQHT TO SUE. [Ch. 2
^He is a damned thief; he stole from me/' his dninken condition is
no defense.^ ^' Bo a drunkard is liable for damages done by negli-
gent driving.*^* Drunkenness may, however, be evidence of absence
of actual malice, and may thus mitigate damages.*^ ^ Perhaps de-
lirium tremens may be a defense, for it is a species of insanity, and,
like other insanity, must %ffect responsibility for acts, criminally and
civilly.'^* But drunkenness is not mental unsoundness.*^*
SAME-^CONVICTS—ALIEN ENEMIES.
67. In England, neither a convict not lawftdly at large,
nor an alien enemy, can sue in tort. The rule is
otherwise in America, as to a convict, and perhaps,
also, to an alien enemy.
The English rule that a convict cannot recover in tort is the re-
sult of the common-law doctrine, that a convict is civiliter mortuus,
enforced by statute.**® The position of an alien enemy and a con-
vict, Mr. Pollock thinks, must be the same.*'^
In America the right of a confined convict to sue for tort has been
recognized and enforced.'"' Indeed, he is, in some respects, in a
S7S Reed v. Harper, 26 Iowa, 87.
>7« Gassady v. Magher, 85 Ind. 22a Oompare Bngleken v. Hllger, 43 Iowa,
663; Kearney v. Fitzgerald, Id. 680.
ST7 Dawson v. State, 16 Ind. 4228; Gates v. Meredith, 7 Ind. 440; laeley
r. Lovejoy, 8 Blackf. (Ind.) 462. And see Mix v. McOoy, 22 Mo. App. 488;
McKee v. Ingalls, 5 111. 30. In an action against a surgeon far malpractice,
defendant's condition, as to being intoxicated, at the time he treated plain-
tiff, may be shown. Merrill v. Pepperdine, 0 Ind. App. 416, 36 N. R, 921.
2TS Maconnehey v. State, 6 Ohio St. 77; O'Brien v. People, 48 Barb. (N. Y.)
275.
379 In re .Johnson's Estate, 57 Cal. 529. As to conyersion by purchase from
an. intoxicated person, see Baird v. Howard (Ohio) 36 N. B. 732.
a»o Pol. Torts, c. 3, citing 33 & 34 Vict c. 23, §fi 8, 30; De Wahl v. Braune,
1 Hurl. A N. 178, 25 Law J. Exch. 343. But see Barnard's Case, 4 Com.
Dig. "Forfeiture," B, 2. p. 406; Flemming v. Smith, 12 Ir. C. L. 404; Mews,
rx>m. Law Dig. "Forfeiture."
«•! Pol. Torts, c. 3, note c.
sssDade Goal Go. v. Haslett 83 Ga. 549, 10 S. E. 435; Willingham v.
King, 23 Fla. 478, 2 South. 851; Cannon v. Windsor, 1 Houst (Del.) 143; Ex
parte Garland, 4 Wall. 333-380 (as to effect of a pardon). But public officefs.
C3>. 8] VARIATIOHB BASED OH STATUS. 167
more favorable position in a proceeding to enforce such a right than
an unoffending citizen.'*' But, as far as the injary complained of
affected the convict's ability to labor daring the period of his im-
prisonment, he cannot recover therefor.'** In McVeigh v. United
States,'" — a proceeding against a resident within the Confederate
lines, and a rebel, for the forfeiture of lands, — ^Mr. Justice Swayne
says, as to the claim that an alien enemy coald have no locus standi
in the forum: ^f assailed there, he could defend there. The lia-
bility and the right are inseparable. A different result would be
a blot on our jurisprudence."
SAMS—PBIVATB COBFOBATION8.
58. Private corporationa are liable for their torts oom-
mitted under such drenmstancee as would attach
liability to natural persons. That the conduct com-
plained of necessarily involved malice, or was be-
yond the scope of corporate authority, constitutes
no defense to their liability."*
For a long time difficulties, due rather to considerations of pro-
cedure than to fancied obstacles arising from a corporation's arti-
liaving the custody of prisoners, are not liable to a prisoner for Injurleti
caused by defectiye machinery with which he was pat to work. O'Hare v.
Jones, lei Maas, 391, 37 N. E. 371.
38a The rale forbidding the recovery by a servant who aabjecta himself to
injury by going, without objection, into a place known by. him to be dan-
gerous, does not apply to a convict whose movements are conti-oUed by a
guard having power to compel obedience. Chattahoochee Brick Go. v. Bras-
well« 92 Ga. 631, 18 S. E. 1015. And sej Dalheim v. Lemon, 45 Fed. 225-
233. Cf. Porter v. Waters-Allen Foandry ft Macb. Co., 94 Tenn. 370, 29 8.
W. 227.
>•« Bhlras, J., in Dalheim v. Lemon, 45 Fed. 225.
t«ft 11 Wall. 2.59. citing Calder v. Ball, 8 DaU. 388; Bonaker v. Evans, 1<;
AdoL & E. (N. S.) 170; Capel v. ChUd, 2 Cromp. & J. 574. And generally,
as to legal status of a public enemy, see McNair v. Toler, 21 Minn. 175;
Miller V. U. S., 11 Wall. 268; Dean v. Nelson, 10 Wall. 158; Lasere v.
Rochereaa, 17 Wall. 437; University v. Finch, 18 WaU. 106; Windsor v.
McVeigh, 93 U. 8. 274. As to sabjection of alien to law of contracts, see
MiOiken v. Barrow, 55 Fed. 148. And see article by Prentiss Webster in
24 Am. Law Rev. 616.
29«A very fall presentation and discussion of the principles underlying
168 VARIATIONS : IN THE NORMAL RIQUT TO SOS. [Ch. 2
ficial personality, were felt in admitting that a corporation could be
sued for tort.*«^ In 1812 it was held that troter lay against a cor-
poration,*"* and in 1842, that trespass lay, also.*^* As clearly as
liability not necessarily attributable to personal fault is thus recog-
nized, responsibility is admitted for damages consequent upon neg-
ligence.*** In cases, however, in which the mental attitude of the
wrongdoer is peculiarly involved, as in fraud ^•^'or malice,*'* it has
- been contended that, inasmuch as a corporation had no soul, it could
not be held liable. But it is now definitely settled that a corpora-
tion can be guilty of malice, in a legal sense.**' Thus, it may be
held liable for malicious prosecution,*'* or for libel.*** And, as to
this statement of law are coirtalned In the opinion of tlie supreme court of
Nebraska in the case of Fitzgerald v. Fitzgerald & MaUory Const Go., 41
Neb. 374, 59 N. W. 838.
28T Pol. Torts, p. 51.
588 Yarborough v. Bank of England, 16 East, 6.
589 Maund v. MonAiouthshire Canal Co., 4 Man. & G. 452.
290 There is no negligence of a serraut which is not the negligence of a cor-
poration. Kausas City, M. & B. B. Co. y. Sanders, 98 Ala. 293, 13 South. 57;
Railway Co. v. Ryan, 56 Ark. 245, 19 S. W. 839.
201 Western Bank of Scotland y. Addie, L. R. 1 H. L. Sc 145.
s»2 Abrath y. North Eastern Ry. Co., 11 Q. B. Diy. 440; Steyens y. Midland
R. Co., 10 E^cch. 351; Henderson y. Midland Co., 20 Wkly. Hep. 23; ChUds y.
Bank, 17 Mo. 213; Owsley y. Railway Co., 37 Ala. 560; poat, p. 170, "Ultra
Vires."
208 Waclismuth y. Merchants' Nat Bank, 96 Mich. 426, 56 N. W. 9; Lathrop
y. Adams, 133 Mass. 471-481; Salt Lake City y. H<41ister, 118 U. S. 256-262,
6 Sup. CL 1055; Reed y. Home Sayings Bank, 130 Mass. 443-445, and cases
cited; Kinileyitz y. Eastern R. Co., 140 Mass. 573, 6 N. B. 600; Bank of New
South Waies v. Owston, 4 App. Cas. 270.
204 Abrath y. North Eastern Co., 11 Q. B. Diy. 440; Green y. London Gen-
eral Omnibus Co., 29 Law J. C. P. 13; Bank of New South Wales y. Owston,
4 App. cas. 270; Edwards v. Railroad Co., 6 Q. B. Div. 287; Mor. Corp.
5 727; Central Ry. Co. y. Brewer, 78 Md. 394, 28 Atl. 615. H6wett y. Swift,
3 Allen, 420; Ramsden y. Boston & A. R. Co., 104 Mass. 117: Frost y. Do-
mestic Sewing Mach. Co., 133 Mass. 563; Jackson y. Second Aye. R. Co.,
47 N. y. 274; Pennsylvania R. Co. y. Vandlyer, 42 Pa. St. 365; .Chicago
6 N. W. R. Co. V. Williams, 55 111. 185; Owsley v. Montgomery R. Co., 37
Ala. 560; St. Louis, A. & C. R. Co. y. Dalby, 19 111. 352; Philadelphia &
29S See note 295 on following page.
<"b. 2] VARIATIONS BASED ON STATUS. 169
fraud, a corporation will be held liable where an individaal wonld.***
There may, however, be an exception to this, where Lord Tenterden's
act 18 in force.'*' Even exemplary damages have been awarded
ai^ainst corporations.*^'
R. R. Co. T. Derby, 14 How. 468; American Bxp. Co. ▼. Patterson, 73 Ind.
430; Lynch v. Metropolitan El. Ry. Co., 90 N. Y. 77; Vance v. Brie R. Co.,
32 N. J. Law, 334; Goodspeed y. East Haddam Bank, 32 Conn. 530; Cop-
ley y. Groyer & Baker Sewing-Mach. Co., 2 Woods, 494, Fed. Cas. No. 8,213;
Fenton y. Sewing-Mach. Co., 9 Pliila. (Pa.) 189; Walker y. Sontheastem R.
Co.. L. R. 5 C. P. 640; Edwards y. Midland Ry. Co., 6 Q. B. Dly. 287; Wil-
liams y. Planters' Ins. Co., 57 Miss. 709; Morton y. Metropolitan Life Ins.
Co., 34 Hon, 366; Pennsylyanla Co. v. Weddle, 100 Ind. 138; Carter y.
Howe Mach. Cp., 51 Md. 290; Reed y. Home Say. Bank, 130 Mass. 443.
2«5 Rex y. Watson, 2 Term R. 199; Whitfield y. South Eastern Ry. Co., El.,
Bl. & El. 115-121, 27 Law J. Q. B. 229; Aldrich y. Press Printing Co., 9
Minn. 133 (Gil. 123); Fogg y. Boston & L. R. Corp., 148 Mass. 513, 20 N. E.
100; Samuels y. Eyenlng Mail Ass'n, 75 N. Y. 604; Maynard y. Fireman's
Ins. Co., 34 Cal. 48, 47 Cal. 207; Philadelphia, W. & B. R. Co. y. Quigley, 21
How. 202; Howe Machine Co. y. Souder, 58 Ga. 04; Buffalo Lubricating Oil
Co. y. Standard Oil Co., 42 Hun, 153; Johnson y. St. Louis Dispatch Co., 2
Mo. App. 565; Borgher y. Life Ass'n, 75 Mo. 319; Payne y. Western & C. R.
Co., 13 Lea (Tenn.) 507; Van Aernam y. McCune, 32 Hun, 316; Detroit & C.
-Co. y. McArthuc, %6 Mich. 447; Vinas y. Merchants' Mut. Ins. Co.. 27 La. Ann.
3ffl; Lawless y. Anglo Egyptian Cotton & Oil Co., L. R. 4 Q. B. 262; Carter
y. Howe Mach. Co., 51 Md. 290; Green y. Omnibus Co., 7 C. B. (N. S.) 290-
302; Gwynn y. South Eastern Ry. Co., 18 Law T. (N. S.) 738; Eyening Journal
Ass'n y. McDermott, 44 N. J. Law, 430; Tenck y. Great Western Ry Co., 32
U. C. Q. B. 452.
200 Mackay y. Commercial Bank, L. R. 5 P. C. 394; National Exchange Co.
y. Drew, 2 Macq. 103, 124, et seq.; Ranger y. Great Western R. Co., 5 H. L.
Cas. 72; Barwick y. English Joint-Stock Bank. L. R. 2 Exeh. 2r>9; Kenned:^
y. Panama, N. Z. & A. R. M. Co., L. R. 2 Q. B. 589; Erie City Iron Works
y. Barber, 106 Pa. St, 125; Peebles y. Patapsco Guano Co., 77 N. C. 233;
Lamm y. Port Deposit Homestead Ass'n, 49 Md. 233; Cragie y. Hadley, 99
N. Y. 131, 1 N. E. 537; New York & N. H. R. Co. y. Schuyler, 34 N. Y. 30;
Butler y. Watkins 13 Wall. 456; Candy y. Globe Rubber Co., 37 N. J. Eq.
175; Fogg y. Griffin, 2 Allen, 1; Western Bank y. Addie, L. R. 1 H. L. Sc.
145-15?; Concord Bank y. Gregg, 14 N. H. 331; Scofleld RoUing-Mlll Co. y.
State, 54 Ga. 635; Fishkill Say. Inst. y. National Bank, 80 N. Y. 162.
2*7 Houldsworth y. City of Glasgow Bank, 5 App. Cas. 317 {per Lord Black-
bum).
2»« Lake Shore & M. S. Ry. Co. y. Prentice, 147 U. S. 101, 13 Sup. Ct 281;
Bass y. Chteago & N. W. R. Co., 42 Wis. 654; Eviston y. Cfamer, 57 Wis.
, 172 VARIATIONS IN TRt NORMAL RIGHT TO SUB. [Ch, 2
poration, who is also its agent for transfer of stock, and authorized
to countersign aiid issue stock, when signed by the president, forges
the name of the latter, and fraudulently issues a certificate of stock,
the corporation is liable to a bank which has accepted such certifi-
cate, in good faith, as collateral security for a loan.'®'
At the other extreme, the agents of a corporation are personally
liable When they do wrong, even with respect to something connected
with the corporation, in their purely individual capacities. Thus,
if they, by misrepresentation, induce a stockholder to exchange his
stock for certificates in a trust formed to control a eiven corporation,
they, and not the corporation, are liable.***
Between these extremes, the test is by no means certain; but the
tendency is to hold a corporation liable for all wrongs committed by
agents, whether authorised or not, whether within the scope of em-
ployment or not, so long as they are committed in course of ibiploy-
ment*^* There would seem to be no difference- bejtween the prin-
•ciple which governs the liability of a corporation as a principal or
master from those which control the liability of a natural person
as principal and master.* ^^ It has, however, been claimed that an
agent or servant cannot bind a corporation by committing an ultra
vires tort, where its authority is not direct, but implied only.***
Corporators, by their acts, may make the corporation liable, on
essentially the same principles as would any ordinary agent Un-
like cases of agency, the liability is not cumulative, but is altema-
»08 Fifth Ave. Bank v. Forty-Second St & Q. St P. R. Co., 137 N. Y. 231.
33 N. E. 378; Nevada Bank v. Portland Nat. Bank, 59 Fed. 338.
«o» Manhattan Life Ins. Co. v. Forty-Second St & G. St F. R.»Go., 64 Hun,
635, 10 N. Y. Supp. 90; Tyler v. Savage, 143 U. S. 79-99, 12 Sup. Ct 340; Aetna
Life Ins. Co. v. Paul, 37 111. App. 439.
510 Post, p. 257, "Liability of Master to Third Persons for Wrong of Serv-
ant"
' «n Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct 261;
Ang. & A. Corp. § 311; Central Ry. Co. v. Brewer, 78 Md. 394, 28 Atl. 615;
Salt Lake City v. Holllster, 118 U. S. 256-261, 6 Sup. Ct 1055; Denver &
R. G. Ry. Co. V. Harris, 122 U. S. 597-608, 7 Sup. Ct 1286; Hamilton v. Rail-
way Co., 53 N. Y. 25; Jeffersonville Ry. Co. v. Rogers, 38 Ind. 116; Allen
V. Railway Co., L. R. 6 Q B. 65; Goddard v. RaUway, 57 Me. 202; Sherley v.
Billings, 8 Bush, 147; Bryant v. Rich, 106 Mass. 180.
»" Green's Brice, Ultra Vires, 364. .
€h. 2] YARIATIOMS BASE^ ON STATUS. 17 ^
tive. Either the corporation is liabtei or the corporators, — ^not
both."*
8AM£— MUNICIFAIi AND QUASI MUNICIPAL COBFOBA-
TION8.
68. Municipal corporationa are sometimea, bat not ordi-
narily, liable for their torts. Their liability de-
pends largely upon construction of the legislation
creating them. In general, they *are not liable
for —
(a) C!onduct in performanoe of governmental, as distin-
guished from merely corporate, functions;
(b) Unauthorized conduct of of&cers and agents;
(c) Authorized acts.
60. Involuntary quasi municipal corporations are subject
to even a less extended liability for dvil wrongs.^
Acts in Performance of GotemmenUil Functions,
A municipal corporation owes a two-fold duty, — one political^
springing from its sovereignty; the other private, arising from its ex-
istence as a legal person. For conduct of its officers or agents in its
former capacity, it is notiiable; for their conduct in the latter, it
is.'" As to what are public and governmental duties, and what are
private or corpiorate duties, the courts are not in harmony, and
their decisions do not furnish any definite line of cleavage. It is
important, in every case, to determine the liability by a true inter-
818 Harman t. Tappenden, 1 East, 555; Mm v. Hawker, L. R. 9 Excb. 300;
The King v. Wataon, 2 Term R. 199; Houldsworth v. City of Glasgiow Bank,
5 App. Gas. 317. As to liability of promoters to stockholders, Yale Gas
Stove Co. y. Wilcox, 64 Conn. 101, 29 Atl. 303. A short article on the duties
and liabilities of the "promoters" of corporations will be found in 1 Brief, 228.
As to personal liability of officers for torts, see Nunnelly v. Southern Iron
Co., 94 Tenn. 397, 29 S. W. 361. As to stockholders (under statute), Flenniken
V. MarshaU (S. C.) 20 S. B. 788. An extensive note on the duties and lia-
bility of promoter to the corporation and its members. Yale Qas-Stove Co.
V. Wilcox, 25 L. Ri A. 90 (Conn.) 29 Atl. 303.
S14 29 Am, Law Rev. 209-218; City of Galveston v. Posnainsky, 62 Tex. 118;
15 Am. & En^. Enc. Law, 1141, note 3, collecting cases; 2 Dill. Mun. Corp.
I 966; O'Rourke v. City of Slonx Falls (S. D.) 54 N. W. 1044.
174 VARIATIONS IN THE NORMAL KI6HT TO SUK. [Ch. 2
pretation of the statutes under which the corporation is created.*"
Indeed, it may occur that the liability of a municipality depends
exclusively on the statute.***
At one extreme, the exemption of municipal corporations from
liability for torts is clear. Thus, they are not liable for damages
consequent upon conduct of fire,**^ police,*** health,*** or public
«" Snider v. City of St. Paul, 61 Minn. 466, 53 N. W. 763; Mersey Docks v.
GibbS, 3 Hurl. & N. 164; City of Detroit v. Putnam, 45 Mich. 263, 7 N. W. 815.
The courts of New England, New Jersey, Michigan, and Texas accepted the
Idea of nonliability at common law of municipal corporations to dvU action.
2 Thomp. Neg* P- 735, note 11. This doctrine has been largely changed by the
various statutes. Burt v. Boston, 122 Mass. 223.
3i« 2 Dill. Mun. Corp. § 948; Reed r. City of Madison, 83 Wis. 171, 53 N. W.
547; KoUock v. City of Madison, 84 Wis. 458, 54 N. W. 725; StiUlng v. Town of
Thorp, 54 Wis. 528, 11 N. W. 906; Mclimans v. City ot Lancaster, 63 Wis.
596, 23 N. W. 689; Workman v. Mayor, etc., of City of New Ywk, 63 Fed,
298; Roberts t. City of Detroit (Mich.) 60 N. W. 450. Right to sue for
tort to subject to limitation contained In municipal charter as to notice of
Injury and time within which action may be brought. Nichols y. City of
Minneapolis, 30 Minn. 545, 16 N. W. 410; Morgan y. City of Des Moines, 54
Fed. 456; Berry v. Town of Wauwatosa, 87 Wis. 401, 58 N. W. 751. Cf.
Barrett y. VUlage of Hammond, 87 Wis. 654, 58 N. W. 1053; and, generaUy.
see Bacon y. City of Boston, 154 Mass. 100, 28 N. E. 9.
S17 Lawson y. City of Seattle, 6 Wash. 184, 33 Pac. 347; Wild y. Mayor, etc.,
of City of Pnterson, 47 N. J. Law. 406, 1 Atl. 490; Alexander v. City of Vlcks-
burg, 68 Miss. 564, 10 South. 62; Gillespie y. City of Lincoln, 35 Neb. 34, 52 N.
W. 811; Dodge y. Granger, 17 R. I. 664, 24 Atl. 100; Thomas y. City of Flndle>,
6 Ohio Clr. Ct. R. 241; Grube y. City of St. Paul, 34 Minn. 402, 26 N. W. 228.
The use by the fire department of a town of a person's hose, which had
gotten mixed with the hose of the town, under the belief that It belonged to
the town, does not render the itown liable to the owner for Its use. DoUoff
y. Inhabitants of Ayer (Mails.) 39 N. B. 191. But see Workman y. Mayor,
etc., of City of New York. 63 Fed. 298; BurriU y. City of Augusta, 78 Me. 118,
3 Atl. 177.
81 s Elliott y. Philadelphia, 75 Pa. St. 347; Atwater y. Baltimore, 31 Md. 462;
Caldwell y. Boone, 51 Iowa, 687, 2 N. W. 614, 20 Alb. Law J. 376; Odell y.
Schroeder, 58 III. 357; Bowdltch v. Mayor, etc., of Boston, 101 U. S. 16; Glvens
V. City of Paris, 5 Tex. Civ. App. 705, 24 S. W. 974; Jolly's Adm*x y. City of
Hawesyille, 89 Ky. 279, 12 S. W. 313. A neglect of the city police to suppresfl
a nuisance consisting of coasting on the public streets does not render the city
liable for damages to a person passing along said streets by one coasting. Olty
ti* Forbes y. Board of Health. 28 Fla. 26, 9 South. 862.
<:h. 2] VAKIAT10N8 BASED ON 8TATU8. 176
park departments, or for the exercise or nonexercise of a discretion*
ary, legislatiTe, or judicial power, as dlstingnished from a ministerial
power.***
At the other extreme, municipalities are generally held liable for
negligence,'*^ in construction, maintenance, or use of their streets,***
of WilmiDfiTton T. yandegrift (Del. Brr. & App.) 29 AtL 1047. A city is not lia-
ble for the act of a police officer in killing a dog mnnlng at large contrary to
-ordinance. Julienne y. Mayor, etc., of City of Jackson, 10 South. 43; Moss t.
City CouncO of Augusta, 03 Oa. 797, 20 8. B. 653; Van Hooeear v. Town of
Wilton, 62 Conn. 100, 25 Atl. 457, distinguishing Town of Wilton v. Town of
Weston, 48 Conn. 325. There is no liability on the part of a municipality for
•damages done by mobs. Western College y. Cleyeland, 12 Ohio St 375; 2
Dia Mun. Corp. | 760. Cf. Wing Chong y. Los Angeles, 47 Cal. 531; Darling-
ton y. Mayor, 31 N. Y. 164; Lowell y. Wyman, 12 Cush. (Mass.) 273; In re
Hall, 5 Pa. St 204. And, generaHy, see City of New Orleans y. Abbagnato,
10 C. 0. A. 361, 62 Fed. 240.
sso The city of Boston is not liable for injury occasioned to a person by
reason of his horse becoming frightened, when being drlyen along an adjoin-
ing street, by the firing of a cannon on the common under a license granted
in pursuance of a city ordinance. **The ordinance ^ * ^ is not the ex-
ercise of an owner's authority oyer his property, but Is a police regulation
of the use of a public place by the public, made by the city under Its
power to make needful and salutai^ by-laws, without regard to accidental
ownership of the fee.** Lincoln y. City of Boston, 148 Mass. 678, 580, 20
N. B. 329. A municipality Is not liable for suspending an ordinance forbid-
ding fireworks during the time plalntlfTs house was destroyed by fireworks
negligently used by boys. Hill y. Charlotte, 72 N. C. 55. And, generally,
see City of Pontiac y. Carter, 32 Mich. 164; Grlffln y. Mayor, 0 N. T. 456;
Dewey y. Detroit, 15 Mich. 307; Grant y. Erie, 60 Pa. St 420.
3«i I^uthie y. Town of Washburn, 87 Wis. 231, 58 N. W. 380. GeneraUy,
see Jones, Neg. Mun. Corp.; post P* 798, **Nui8ance," note 279. Bt yide
Cooley, Torts, f 625; Powers y. City of Chicago, 20 111. App. 178-181.
»ssA dangerous depression, howeyer, has been held not to be an action-
able defect Witham y. Portland, 72 Me. 539. But u city is liable for in-
juries caused by a ditch dug in the street, and left without any protection
or light City of Americus y. Chapman (Ga.) 20 S. E. 3. Leaying a loose
plank may be actionable negligence. Ledgerwood y. City of Webster (Iowa)
•61 N. W. 1089. And see White y. City of San Antonio (Tex. Ciy. App.) 25
S. W. 1131; Dempsey y. City of Rome (Ga.) 20 S. E. 335. In the absence
•of statutory proyisions, howeyer, city streets haye been held to be pubUc
highways, and the duty of keeping them In repair is pubUc, and not prl-
yate, and cities, towns, and counties alike are not responsible for negli-
gence in aUowing them to be In a defectlye condition, resulting in dam-
176 .' VARIATIONS IN THK NOBMAL RIGHT TO SUE. [Ch. 2
sidewalks,**' sewers,*** and levees.*** They are answerable in dam-
ages for trespass on private property.*** While a city is not ordi-
narily liable for failure to exercise its corporate power to abate a
ages. City of Detroit v. Blackeby, 21 Mich. 84; Detroit v. Osborne, 135-
U. S. 492, 10 Sup. Ct 1012. Et vide Mayor, etc., of City of Rabway v.
Carter, 55 N. J. Law, 177, 26 Atl. 9G. As to distinction in Michigan that
cities are responsible for defects in cross walks, but not In sidewalks, seer
O'Neil V. Detroit. 50 Mich. 133, 15 N. W. 48; Detroit v. Putnam. 45 Mich.
2G3, 7 N. W. 815; Grand Rapids v. Wyman, 46 Mich. 516, 9 N. W. 833.
The fact that 3 How. Ann. St § 1446d, makes it the duty of cities to keep
their streets in repair, so that they may be reasonably safe, etc., does not
srive every person injured by failure to perform such duty a right to main-
tahi an action for the injury. Roberts v. City of Detroit (Mich.) 60 N. W.
450; Hennessey v. City of New Bedford, 153 Mass. 266, 2G N. E. 999; IMnce
S2S Harper v. City of Milwaukee, 30 Wis. 365; Reed v. City of MaJdison,
83 Wte. 171, 53 N. W. 547; Nichols v. City of St Paul, 44 Minn. 4^, 47 N.
W. 168; City V. Mclnnis, 26 111. App. 338; Weare v. Fitchburg, 110 Mass. 334;
Saulsbury v. Village, 94 N. Y. 27; Potter v. Castleton, 53 Vt 435; Foxworthy
▼. City of Hastings, 25 Neb. 133, 41 N. W. 132; Orme v. Richmond. 79 Va,
86; Rochester White Lead Co. v. City of Rochester, 3 N. .Y. 463; 2 Thomp.
Neg. 673. The sidewalk doing damage and creating liability may be of earth
instead of usual materials. Graham t. City of Albert Lea, 48 Minn. 201, 50
N. W. 1108 (collecting cases, page 204, 48 Minn., and page 1108, 50 N. W.).
Street crossings: Hall v. Incorporated Town of Manson (Iowa) 58 N. W. 881.
»a* Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 27 N. B. 1030;
New York Cent & H. R. R. .Co. v. City of Rochester, 127 N. Y. 591, 28 N. k
416; Welter v. City of St Paul, 40 Minn. 460, 42 N. W. 392; Tate v. Citr
of St Paul, 56 Minn. 527, 58 N. W. 158; Evers v. Long Island City, 78 Hun.
242, 28 N. Y. Supp. 825; Burton v. Syracuse, 36 N. Y. 54; Noonam v. Albany,
79 N. Y. 470. The duty of draining streets, however, has been held to be
Judicial in its nature. A municipal corporation has been exonerated from
liability for the injurious consequences of an insufficient sewer. The error i^
in the plan, not in its execution. Post, p. 179, note 332. Where a city has built
a sewer partly on private property, it is no excuse for failing to repair the
same that it has no right to go on such property to make repairs. Netzer v.
City of Crookston (Minn.) 61 N. W. 21. But see Strelff v. City of Milwauk^
(Wis.) 61 N. W. 770. Cf. Mayor, etc., of City of Nashville v. Sutherland.
94 Tenn. 356, 29 S. W. 228.
826 Harden v. City of Portage, 79 Wis. 126, 48 N. W. 210.
8S6 Ashley v. Port Huron, 35 Mich. 296. Cf. Montgomery v. Gilmer, 33 Ala.
116, with Wilson V. City of New York, 1 Denio (N. Y.) 595. See Proprietors v.
LoweU, 7 Gray (Mass.) 223^; Emery v. Lowell, 104 Mass. 13; Conra^d v. Ithaca,
16 N. Y. 158;, Van Pelt v. Davenport, 42 Iowa, 308.
Ch. 2J VARIATIONS BASED ON STATUS. 177
naisance of Bome third party doing damage,' ^^ it is responsible for
wrongful exercise of power to abate a nuisance,*** and for maintain-
ing a nuisance, of its own.'**
V. City of Lynn, 149 Mass. 103, 21 N. E. 296. This doctrine lias been adopted
in Texas. City v. Pearce (1877) 40 Tex. 525. "It is painful to see an idea,
destitute of any trace of Justice, which means no more nor less than that
one member of a community may be damnified without redress for any
ease, convenience, or profit of the rest, adopted by the Judiciary of a younj?
state whose early Jurisprudence received a generous leaven from the civil
law." 2 Thomp. Neg. p. 735, note 11. Where a city that Is under no stat-
utory obligation to light its streets does so voluntarily, it Is not liable if the
lighting is insufficient to enable persons to see a hydrant in the street
City of Columbus v. Sims (Ga.) 20 S. E. SS2, It is not necessary that an
obstruction in a highway should endanger any particular modes of public
travel in order to be a defect making a municipality liable in damage for
negligence to one injured thereby. It is enough that such obstruction makes
dangerous any mode which the public has a right to use. Applied to injury
to a street-car conductor by collision with barrier guarding a cave in the
street: Powers v. City of Boston, 154 Mass. 60, 27 N. E. 995. But the or-
dinary use of a highway does not include racing, McCarthy v. Portland,
67 Me. 167; Sindlinger v. City of KansasCity (Mo. Sup.)28S. W. 857; nor play,
Blodgett V.Boston, 8 Allen, 237; Jackson v. City of Greenville (Miss.) 16 South.
382. As to use by bicycle, see Sutphen v. Town of North Hempstead (Sup.) 30 N.
Y. Supp. 128, and McCarthy v. Portland, supra. And, generally, see Bieling
v. City of Brooklyn, 120 N. Y. 98. 24 N. E. 389; Goodfellow v. City of New
York, 100 N. Y. 15, 2 N. E. 462; Gerdee ▼. Foundry Co. (Mo. Sup.) 27 S. W.
615: Cleveland v. King, 132 U. S. 295, 10 Sup. Ct. 90; Weet v. Trustees, 16
N. Y. 161; 2 Thomp. Neg. 678; Kollock v. City of Madison, 84 Wis. 458. 54
N. W. 725; Barnes v. District of Columbia, 9 U. 8. 540; District of Colum-
bia v. Woodbury. 136 U. 8. 450. 10 Sup. Ct 990; Providence v. Clapp, 17
How. 1(»1 ; City of Abilene v. Cowperthwalt, 52 Kan. 324, 34 Pac. 795. Thus
a city may be liable for injury done by fireworks exploded at the Junction
827 Davis V. Montgomery, 51 Ala. 139.
»28 Yates V. Milwaukee, 10 Wall. 497; Everett v. Council Bluffs, 46 Iowa,
66. But see City of Orlando v. Pragg, 31 Fla. Ill, 12 South. 368.
829 A pesthouse has been held a nuisance. Haag v. Board of County
Com'rs, 60 Ind. 511; City of HiUsboro v. Ivey, 1 Tex. Civ. App. 653, 20 S. W.
1012; Miles v. City of Worcester, 154 Mass. 513, 28 N. E. 670; Pumpellv v.
Green Bay, 13 Wall. 166-181; Harper v. Milwaukee, 30 Wis. 305; Eastman v.
Meredith, 36 N. H. 284-296; Weet v. Brockport, 16 N. Y. 161-172; St
Peter v. Denison, 58 N. Y. 416-421; Mayor of Cumberland v. Willison, 50
Mo. 138; Forsyth v. Mayor, 45 Ga. 152; Barthold v. Philadelphia, 154 Pa. St
109, 26 Atl. 304. Generally, see 2 Thomp. Neg. p. 740.
LAW OP TOUTS — 13
178 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
Between these extremes, the line of distinction is often obscure.
Thus, as to corporate property, the municipality is not liable for
damages arising from its use, management, or condition, when the
purpose of such property is purely public. A child injured by an
unsafe staircase in a public school cannot recover against the city."^^
of streets. Spoir v. City of Brooklyn, 139 N. Y. G. 34 N. E. 727. Cf. Lincoln
V. City of Boston, supra. As to liability of city for blasting? in highway,
see post p. S48, note liKJ, "Negligence"; for leaving glass on street, City
of El Paso V. Dolan (Tex. Civ. App.) 25 S. W. 669; for a projecting water
plug, Scranton v. Catterson. 94 Pa. St. 202; a box. City v. Tayloe, 16 South.
576; for leaving a manhole defectively covered on surface of street Barr
v. City of Kansas (Mo. Sup.) 25 S. W. 562; Lincoln v. City of Detroit (Mich.)
59 N. W. 617; for allowing a dangerous ridge of ice to remain, Cumisky v.
City of Kenosha, 87 Wis. 286, 58 N. W. 395. distinguishing Ball v. Town of
Woodbine, 61 Iowa, 83, 15 N. W. 846; Pindley v. City of Salem, 137 Mass.
171; Hill V. Board, 72 N. C. 55; Smith v. City of Pelhi, 86 Iowa. 236, 53 N.
W. 226; Decker v. City of Scranton. 151 Pa. St 241, 25 Atl. 36; Dooley v.
City of Meriden, 44 Conn. 117; West v. City of Eau Claire, 89 Wis. 31, 61 N.
W. 313; Cook v. City of Milwaukee, 24 Wis. 270; Upham v. City of Salem.
163 Mass. 483, 39 N. E. 178; but mere slipperiness is not sufficient Grossen-
bach v. City of Milwaukee, 05 Wis. 31, 26 N. W. 182; Cook v. City of Mil-
waukee, 27 Wis. 191: Chicago v. McGiven, 78 111. 347; Village of Gibson v.
Johnson, 4 111. App. 288; Broburg v. City of Des Moines, 63 Iowa, 523, 9
N. W. 340; Smyth v. Bangor, 72 Me. 249; contra, Cloughessey v. City of
Waterbury, 51 Conn. 405; Kinney v. City of Troy, 38 Hun, 285. And, gen-
erally, see Hughes v. City of Lawrence (Mass.) 36 N. E. 485, 9 Am. Ry. &
Corp. R. 219; Village of Oak Harbor v. Kallager (Ohio) 39 N. E. 144; Hutch-
luson v. City of YpsilantI (Mich.) 61 N. W. 279. While a municipal corpora-
tion is not ordinarily liable for damages caused by grading or changing the
gra^le of a street, In the absence of gross lack of care and skill In devising
the improvement (City of North Vernon v. Voegler, 103 Ind. 314, 2 N. E. 821;
"Damage Incident to Authorized Act." ante, p. 142) it is liable for damages
consequent upon negligence in doing the work (Keating v. Cincinnati, 38
Ohio, 141; Werth v. City of Sprlngitield, 78 Mo. 107; Hendershott v. City of
Ottumwa. 46 Iowa, 6,58; Mayo v. Springfield, 1.36 Mass. 10; Broad well v.
City of Kansas, 75 Mo. 213; Elgin v. Kimball, 90 111. 356). As to effect of
grade on street on surface water, see post, p. 763, **Nulsance." The diminu-
tion In market value of property Injured by a change of grade of a street Is
the correct measure of the damage. Chase v. City of Portland, 86 Me. 368,
29 Atl. 1104.
380 Hill V. Boston, 122 Mass. 344; Howard v. City of W^orcester, 153 Mass.
426, 27 N. E. 11; Snider v. City of St Paul (Minn.) 53 N. W. 763. But com-
pare Barron v. City of Detroit 94 Mich. 601, 54 N. W. 273; Greenwood v.
Ch. 2] VARIATIONS BASED ON STATUS. 179
Where, however, corporate property is not uaed for public, but for
corporate, benefit, the city is liable for injury resulting. Thus, the
city council of Augusta, as owner and keeper of a toll bridge over
the Savannah river, was held liable for negligence in not keeping
the abutments on the South Carolina side in safe condition. The
corporation had gone into the state of South Carolina to engage in
private business, and to enjoy the profits thereof.'*^ The distinction
of nonliability of municipal corporations when damages arise from
errors in the plan,^'' and of liability in the execution,"' of public
Town of Westport, 53 Fed. 824; Brlegel v. City of Philadelphia, 135 Pa. St.
451, 19 AU. 1038; Barthold v. Philadelphia, 154 Pa. St 109, 26 Atl. 304.
asi City Council v. Hudson, 88 Ga. 599, 15 S. B. 678; Doherty v. Inhabitants
of Bralntree. 148 Mass. 495, 20 N. E. 106. Simllariy, a city is liable where
it operates waterworks as a private corporation mljsrht. City of PhUadelphia
V. Gilmartin, 71 Pa. St 140; Smith v. Philadelphia, 81 Pa. St 38; or gas
works, Soott V. Manchester, 2 Hen. & M. 204; or runs a poor farm with a
view to profit, among other things, Neff v. Inhabitants of Wellesley, 148 Mass.
487, 20 N. E. 111. As to liability of private corporation owning public
works: Pamaby v. Proprietors Lancaster Canal Co., 11 Adol. & B. 223; 1
Thomp. Neg. p. 541. A city which, pursuant to its charter powers, engages
in the business of towing vessels for profit, is liable for a coUision cause<1
by the fault of the tug. The Giovanni v. City of Philadelphia, 59 Fed. 303,
aflirmed. City of Philadelphia v. Gavagnin, 10 C. C. A. 552, 62 Fed. 617.
832 MUls V. Brooklyn, 32 N. Y. 489; Lynch v. Ci*y of New York, 76 N. Y. 61;
Smith V. New York, 66 N. Y. 295; Carr v. Northern Liberties, 35 Pa. St. 324;
Child V. Boston, 4 Allen (Mass.) 41; Allen v. City of Boston, 159 Mass. 324,
34 N. E. 519. Et vide Darling) v. Bangor, 68 Me. 108. Thus a municipal
corporation is not ordinarily liable for defect in plan of sewerage. The fact
that a city engineer plans a defective drain, to be constructed by private
parties, which caves in, and causes Injury, does not Impose any liability on
the city. Horton, C. J., dissenting. City of Kansas City v. Brady, 52 Kan.
297, 34 Pac. 884, aflirmed; Id., 53 Kan. 312, 36 Pac. 726; RozeU v. City of
Anderson, 91 Ind. 591; Johnston v. District of Columbia, 1 Mackey, 427; City
of Denver v. Capelli. 4 Colo. 25; City of Evansvllle v. Decker, 84 Ind. 325;
Hardy v. City of Brooklyn, 7 Abb. N. C. 403; Collins v. City of Philadelphia,
93 Pa. St 272; Mayor, etc., v. Eldridge, 64 Ga. 524; Springfield v. Spence, 30
833 Municlpalitj' is liable for failure to repair or complete the construction
of Its sewers. Savannah v. Spears, 66 Ga. 304; Winn v. Rutland, 52 Vt 481;
Hardy v. City of Brooklyn, 90 N. Y. 435; and for negligence In construction,
Semple v. Mayor, etc., 62 Miss. 63; Elgin v. KimbaU, 90 111. 356; Johnston v.
District of Columbia, 118 U. S. 19, 6 Sup. Ct 923.
180 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
works is judicially recognized, but lias been pronounced "repugnant
to justice, and destitute of any solid foundation in reason." •■*
Conduct vltra Vires,
Municipal corporations can be held liable for only such tortious
conduct as occurs in the exercise of some power conferred on them
by law, or the exercise of some duty imposed on them by law. If
conduct be unauthorized by charter or statute, it cannot be the
basis of a suit for damages against them. Thus, cutting a ditch
outside of the city limits is an act ultra vires, for which the city is
not liable to the owner of the lot damaged.'** A municipality can-
not commit libel.*** A municipal corporation cannot be guilty of a
wrong so gross and willful as to entitle to vindictive damages. Only
compensatory damages can be recovered.**^
Ohio St 665; Aurora v. Love, 93 111. 521. Of. City of North Vernon v.
Voegler, 89 Ind. 77. Insufficient culvert. Ford v. Town of Braintroe, 64 Vt.
144, 23 Atl. 633. Where a city, under the superintendence of a competent
enprineer, builds a culvert sufficient to discharge the ordinary quantity of
surface water flowing through a definite channel, it is not liable when, be-
cause of a flood caused by an unusuaUy heavy rain, the culvert Is unable to
discharge the water, and lands are overflowed. Los Angeles Cemetery Ass*n
V. City of Los Angeles, 103 Cal. 461, 37 Pac. 375.
834 2 Thomp. Neg. p. 736, § 3. Et vide Lansing v. Toolan, 37 Mich. 152:
Van Pelt v. Davenport, 42 Iowa, 308; Blyhl v. VUlage of WatervUle (Minn.) 58
N. W. 817. The action of municipal authorities in determining the charac-
ter of public works, like sewers, is not g^erally subject to revision by
courts. Johnson v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923; Child
V. Boston, 4 Allen (Mass.) 41; MiUs v. Brooklyn, 32 N. Y. 489. Defect in
plan is not negligence as matter of law. City of Peru v. Brown, 10 Ind. App.
597, 38 N. E. 223.
835 Loyd V. City of Columbus, 90 Ga. 20, 15 S. E. 818; City of Orlando v.
Pragg, 31 Fla. Ill, 12 South. 368; Mayor of City of Albany v. CunUlf, 2 N.
Y. 165, reversing 2 Barb. 190; Browning v. Owen Co., 44 Ind. 11-13; Haag
V. Board of Com'rs, 60 Ind. 511; Pekin v. NeweU, 26 111. 320; Stoddard v.
Village of Saratoga Springs, 127 N. Y. 261-267, 27 N. E. 1030; Smith v. City
of Itocl>eeter, 76 N. Y. 506; Morrison v. I^wrence, 98 Mass. 219; Schumacher
V. St. Louis, 3 Mo. App. 297.
836 Rowland v. Inhabitants of Maynard, 159 Mass. 434, 34 N. E. 515.
837 McGary v. Lafayette, 12 Rob. (La.) 608-674, 4 La. Ann. 440; City of
Chicago V. KeUy, 69 lU. 475; City of Chicago v. Langlass, 52 111. 256, 66 111.
361; Hunt v. City of BoonviUe, 65 Mo. 620. As to Uability of municipal cor-
Ch. 2] VARIATIONS BASED ON STATUS. 181
Unauthorized Acts of Agents and Officers.
The statement that a municipal corporation acts only throogh its
agents does not mean that it so acts through subordinate agents
only. It may act through its mayor, its common council, its superin-
tendent of streets or waterworks, or its board of public works,''*
A municipal corporation is not liable for the acts of its agents or
officers, not previously authorized or subsequently ratified by it,
nor done in good faith in pursuance of their general authority to
act for the city in the matter to which they relate."* Thus a city
is not liable for the act of a tax collector in bringing a malicious
suit against a person, unless it has authorized or ratified such suit.'*"
The ability of a municipal corporation to attach liability by ratifica-
tion has been denied.'** The liability of a municipal corporation for
the acts of an independent contractor or his servants is governed by
essentially the same principles as apply in the case of private indi-
viduals.'*^
porations for torts involving motive, see note to Abratli v. Northeastern R.
Co., 25 Am. Law Reg. 757.
838 Stoddard v. Inliabitants of Wincliester, 157 Mass. 507, 32 N. E. M8;
Klirpott \. Mayor, 9f> N. Y. 264; Barnes v. District of Coiumbia, \)\ U. S. r>-!0:
Barney Dumping-Boat Co. v. Mayor, 40 Fed. 51; Roilins Inv. Co. v. George,
48 Fed. 776. •
S89 Tlius, a town is not liable for the unauthoilased acts of its officers,
though done colore officii. In an action against a town for damages caused by
the acts of its officers, the complaint must allege that such acts were within
the scope of their authority. Kreger v. Township of Bismarck (Minn.) 60 N.
W. 675.
340 Horton v. Newell (R. I.) 23 Atl. 010; DonnoUy v. Tripp, 12 R. I. 97, 98;
New York & B. Sawmill & Lumber Co. v. City of Brooklyn, 71 N. Y. 580;
Ham v. Mayor, etc., 70 N. Y. 459; Goddard v. Harpswell, 84 Me. 499, 24 Atl.
958; Fisher v. Boston, 104 Mass. 87; Alcorn v. Philadelphia, 44 Pa. St. 348;
Reilly v. Philadelphia, 00 Pa. St 467; Sewall v. City of St Paul, 20 Minn. 511
{Gil. 459); Chicago v. Joney, 60 lU. 383; City of ivansas City v. Brady, 52 Kan.
297, 34 Pac. 884; City Council of Sheffield v. Harris (Ala.) 14 South. 357.
Police officers of a city are not servants in such a sense as to render it liable
for their wrongful acts. WoodhuU v. City of New York, 76 Hun, 39, 28 N. Y.
Supp. 120.
34 1 Mitchell V. Ro<kland, 52 Me. 118-125. Cf. Ross v. Madison, 1 Ind.
2S1: 'Ihayer v. Boston, 19 Pick. (Mass.) 511. Et vide McGary v. Lafayette,
12 Hoi). (I^.) 668, 4 I.a. Ann. 440.
3*2 2 Thomp. Neg. 740; Goetz v. Borough of Butler (Pa. Sup.) 3 Atl. 763;
182 VARIATIONS IN THE NORMAL RIGHT TO SUK. [Ch. 2
Damage Incident to Autfwrized Act.
A municipal corporation, on the same principles which exempt
other corporations or private individuals, is not liable for damage
incident to authorized act^**
Involuntary Quasi Corporations.
Involuntary quasi municipal corporations, such as counties,'**
townships, school districts,^** and the New England towns,'**' as to
liability for torts, are distinguished from voluntary chartered mu-
nicipal corporations proper, such a» cities or incorporated villages.
Borough of Susquehanna Depot v. Simmons, 112 Pa. St. 3H1, 5 Atl. 4M. A
town that contracts with an individual for the repair of a highway, including
the destruction by fire of brush which has theretofore been cut and piled, is
not liable for damages to a third person caused by the negligence of said con-
tractor when burning tlie brush. Sliute v. Town of Princeton (Minn.) 59 N.
W. 1050. On the otiier hand, a contractor is not liable for damages caused
by the bursting of a sewer, where he had completed the work, and the city
had assumed control thereof, though it had not formally accepted it. First
Presbyterian Congi'egation of Easton v. Smith (Pa. Sup.) 30 Atl. 279. As to
liability for torts of independent contractor by county, see Smith v. Board
of County Com'rs, 46 Fed. 340
»*3 Ante, p. 170.
344 In the absence of statutory provisions, a county is not liable for dam-
ages resulting from the failure of its ottlcers to maintain its bridges. Punde-
mau V. St. Charles Co., 110 Mo. 594, 19 S. W. 733. Cf. Field v. Albemarle Co..
20 S. E. 954; Heigel v. Wichita Co., &4 Tex. 394, 19 S. W. 562. Cf. McCormick
V. Washington Tp., 112 Pa. St. 185, 4 Atl. 104, followed in Clulow v. McClel-
land, 151 Pa. St. 583, 25 Atl. 147; Yordy v. MarshaU Co., 80 Iowa, 405, 45 N.
W. 1042, followed in Yordy v. MarshaU Co., 86 Iowa. 340, 53 N. W. 298;
Knig V. Borough of St. Mary's, 152 Pa. St. 30, 25 Atl. 161, 162; Power v.
Borough of RIdgway, 149 Pa. St 317. 24 AtL 307: Allen Co. JLJom'rs v. Bacon.
96 Ind. 31.
845 Finch v. Board of Education, 30 Ohio St. 37; Com'rs HamUton Co. v.
Mighels, 7 Ohio St. 109; Eastman v. Meredith, 36 N. H. 284; Kincaid v. Hardin
Co., 53 Iowa, 430, 5 N. W. 589; Bank v Brainerd School Dist, 49 Minn. 106,
51 N. W. 814. As to New Jersey township statute, see Carter v. Mayor, etc..
of Rahway, 30 Atl. 863; Shear. & R. Neg. (4th Ed.) 267.
8*« A town is not liable to a traveler injured by negligence of persons em-
ployed by selectmen in removing a dangerous flagstaff standing near a high-
way. Wakefield v. Newport, 62 N. H. 624, collecting cases; Bryant v. In-
habitants of Westbrook, 86 Me. 450, 29 Atl. 1109; Sargent v. Town of Gilford
(N. H.) 27 Atl. 306; Brown's Adm'r v. Town of Guyandotte, 34 W. Va. 299.
12 S. B. 707; Riddle v. Proprietors (1810) 7 Mass. 169.
Ch. 2] VARIATIONS BASED ON STATUS. 183
in being subjected to a much less extended responsibility. They
are political divisions created for convenience, without the actual,
immediate consent of the inhabitants of the territory involved.'*^
On the other hand, municipal corporations, properly speaking, are
voluntary associations, to which there has been an actual, free con-
sent on the part of the inhabitants. Moreover, the increased power
of a municipal corporation proper naturally brings, at the same time,
increased benefit and increased liability. And there is the addi-
tional argument from inconvenience, — that any other rule would
bankrupt, for example, many sparsely-settled j^ortions of the
West.*** The validity of the distinction has been denied.**' "We
»*7 1 Thomp. Neg. 616; 2 DUl. Mun. Corp. i 961; 15 Am. & Eng. Enc. Law,
1143, note 1, collecting cases. Even a statutory' town organized upon i)etitlon
is within the rnlo. Altnow v. Town of Sibley. 30 Minn. 18(J, It X. W. 877.
Templeton v. Linn Co., 22 Or. 313, 29 Pac. 795; I^iillard v. Town of Monroe,
11 N. Y. 392; Askew v. Hale, 54 Ala. 639; Clark v. Adair Co., 79 Mo. 536;
Granger v. Pulaski Co., 26 Ark. 37; White v. County of Bond, 58 111. 297;
White V. Commissioners, 90 N. C. 437; Brabham v. Supervisors, 54 Miss. 363;
Downing v. Mason Co., 87 Ky. 208, 8 S. W. 264; Bamett v. Contra Costa Co.,
67 Cal. 77, 7 Pac. 177; Scales v. Ordinary of Chattahoochee Co., 41 Ga. 225;
Marion Co. Com'rs ▼. Riggs, 24 Kan. 255; Watkins v. County Court. 30 AV
Va. 657, 5 S. E. 654; Fry v. County of Albemarle, 86 Va. 195. 9 S. B. 10O4;
Woods V. Colfax, 10 Neb. 552, 7 N. W. 269; Hamilton Co. Com'rs v. Migihels,
7 Ohio St. 109; Smith v. Board, 46 Fed. 340; Barnes v. District of Columbia.
91 U. S. 552; Cooley, Const. Lim. (6th Ed.) 301; Dill. Mun. Corp. §§ 996. 997,
999; ElUott, Roads & S. p. 42; Baxter v. Turnpike Co., 22 Vt. 123; Ward v.
County of Hartford, 12 Conn. 404; Commissioners of Niles Tp. y. Martin, 4
Mich. 557; Adams v. Bank, 1 Me. 361; Board of Chosen Freeholders of Sussex
Co. V. Strader, 18 N. J. Law, 108; Farnum v. Concord, 2 N. H. 302; Morey v.
Town of Newfane, 8 Barb. 645. And, for a full discusHion of the question,
see opinion of Mr. Jusitice Gray, in Hill v. Boston, 122 Mass. 344.
"♦a Bailey v. Lawrence Co. (S. D.) 59 N. W. 219. A county is not liable for
negligence in constructing a courthouse whereby the workmen employed
thereon were killed. Hollenbeck v. Winnebago Co., 95 111. 148, reviewing
cases. Where there is no statutory liability on a town for negligence in the
care of sidewalks, one who, while going to the town hall, which has been
340 And it may be, and undoubtedly is, true that too much importance was
originally attached to the decision in the case of Rus.sell v. Inhabitants, de-
cided in 1788 by the court of king*s bench of England, and reported in 2
Term R. 667. Bailey v. Lawrence Co. (S. D.) 59 N. W. 219. The doctrine
rests on stare decisis. To change it would be Judicial legislation. Id.
184 VARIATIONS IN THE NORMAL BIGHT, TO SUE. [Ch. 2
find it not onlv difficult, but absolutely impossible, ta perceive any
good reason why a person who sustains an injury by reason
of a defect in a highway just beyond the corporate limits of a town
or city has no right of action against the public authority charged
with the duty of keeping such a highway in repair, while such a
person would have a right of action if the injury he sustained had
been received within the corporated limits of such a city or town." '***
SAME—COHPOBATIONS, NOT MUNICIPAL, ENGAGED IN
PUBLIC WOBK.
61. Where a corporatiLon, not municipal or quasi munici-
pal, is engaged in public "work. —
(a) Liability is determined by the rules applying to pri-
vate corporations, "whenever such -wotka are oper-
ated for profit; and
(b) Its exemption is limited by rules as to municipal
corporations, ivhen it is a public charity.
Public Works Engaged in for Profit.
The authorities are generally agreed that a private corporation
owning public works, and operating them for profit, is liable in tort,
as any other private corporation, for breach of corporate duty.
rented for other than public* purposes, is Injured by a defect In the waUL in
front of it, cannot recover. Buchanan v. Town of Barre, 66 Vt. 129, 28 Atl.
878. Not liable for failure to repair bridge, Bailey v. liawrence Co. (S. D.)
59 N. W. 219; People v. Queens Co. Com'rs, 142 N. Y. 271, 36 N. E. 1062; cf.
Greenwood v. Town of Westport, 60 Fed. 5(>U; or free gravel roads, Cones
V. Board, 137 Ind. 40i, 37 N. E. 272. A county is not liable for injuries
caused by the negligence of the person in charge of a lunatic asylum main-
tained by the county, since in maintaining such asylum the county is engaged
in the performance of the duty imposed on each county to support and care for
its Insane. Hughes v. Monroe Co. (Sup.) 29 N. Y. Supp. 495; Dosdall v.
Olmsted Co., 30 Minn. 96, 14 N. W. 458. Cf. Kellogg v. Village of Janesville,
34 Minn. 132, 24 N. W. 359; Estelle v. ViUage of Lake Crystal, 27 Minn. 243,
6 N. W. 775; Barnett v. Contra Costa Co., 67 Cal. 77, 7 Pac. 177; Weet v.
Trustees, 16 N. Y. 161, note; Mower v. Leicester, 9 Mass. 247; Smith v.
Board of County Com'rs. 46 Fed. 340.
8 50 Young V. City of Charleston, 20 S. C. 119. Et vide Arkadelphia v. Wind-
ham, 49 Ark. 139, 4 S. W. 450; Winbigler v. Los Angeles, 45 Cal. 36; County
Com'rs V. Gibson, 36 Md. 229; Detroit v. Blackeby, 21 Mich. 84; Navasota v.
Cij. 2] VARIATIONS BASED ON STATUS. 185
Thns, in Parnaby v. Lancaster Canal Co.,*" Tindall, 0. J., held that
the duty of taking such care of a canal that all who properly use
it may navigate without danger to their lives or property is, by law,
^imposed upon the company, and that they are responsible for the
breach of it, upon a similar principle to that which makes a shop
keeper who invites the public to his shop liable for neglect in leav-
ing a trapdoor open, without any protection, by which his customers
suffer injury." "The general rule," says Mr. Thompson,*** "is that
when a corporation is clothed by charter, by the act of legislature,
or by prescription which presumes a charter, with power to con-
struct or improve turnpikes,*" plank roads,*** bridges,*** ferries,***
Pearce, 46 Tex. 525; Pray v. Jersey City, 32 N. J. Law, 394; Mitchell v. Rock-
land, 52 Me. 118; Hyde v. Jamaica, 27 Vt. 443; Detroit v. Putnam, 45 Mich.
263, 7 N. W. 815; French v. City of Boston. 129 Mass. 592; Hill v. City of
Boston, 122 Mass. 344. The doctrine has been judicially denied. Wilson v.
Jefferson Co., 13 Iowa, 181; Commissioners t. Baker, 44 Md. 1; House y.
Board, 60 Ind. 580; Rapho Tp. y. Moore, 68 Pa. St. 404; Bhadler v. Blair Co.,
136 Pa. St. 488, 20 Atl. 539; McCaUa v. Multnomah Co.. 3 Or. 424. But
see Board of Com'rs v. Daily, 132 Ind. 73, 31 N. E. 531; Kincaid v. Hardin Co..
53 Iowa, 430, 5 N. W. 589. And see Raasch v. Dodge Co. (Neb.) 61 N. W. 725.
851 11 Adol- & E. 223; 3 Nev. & P. 523; 3 Perry & D. 162; Mei-sey Docks
y. Gibbs. L. R. 1 E. & I. App. Cas. 93.
S62 Thomp. Neg. p. 555. Although the duty is not especially enjoined by
statute, Kre!der v. Lancaster, E. & M. Turnpike Co,. 162 Pa. 537, 29 Ati. 721.
As to angle of grading and compensation to abutting owner on change of
grade and injunction, see Green y. City & Suburl)an Ry. Co.. 78 Md. 294, 28
All. 626.
»6» 1 Thomp. Neg. p. 556; Brookyille & C. Turnpike Co. v. Pumphrey, 59
Ind. 78; Zuccarello y. Nashville & C. R. Co.. 62 Tenn. 365; South worth y.
Lathrop, 5 Day, 237— although the duty is not especially enjoined by statute.
3 5* 1 Thomp. Neg. p. 55G; Davis v. Lemoille County Plank-Road Co.. 27 Vt
602; Ireland v. Oswego Plank-Road Co., 13 N. Y. 526.
3B5 1 Tliomp. Neg. p. 556; Watson v. Lisbon Bridge Co., 14 Me. 201; Tift
y. Jones, 52 Ga. 538; Wayne County Turnpike Co. v. Berry, 5 Ind. 286;
Hayes v. New York Cent. & H. R. R. Co., 9 Hun, 63; Rex v. Lindsey, 14
East, 317; Rex v. Kent, 13 East, 220; Grigsby v. Chappell, 5 Rich. Law,
443; Nichall v. Allen. 1 Best. & S. 915.
S56 1 Thomp. Neg. p. 556; Murray v. Hudson River R. Co.. 47 Barb. 196;
Delzell V. Indianapolis & C. R. Co.. 32 Ind. 45; Lowel v. Boston, 23 Pick. 31;
Oakland R. Co. v. Fielding, 48 Pa. St 321. As to persons to whom a corpora-
tion operating a ferry owes a duty, see Malloy v. Railway Co., 78 Hun, 166,
28 N. Y. Supp. 979. As to liability for assault of servant. Scanlon v. Suter,
186 VARIATIONS IN THK NORMAL RIGHT TO SUE. [Ch. 2
railways,^*^' telegraphs,***' canals,*'* docks,'** wharves,'** water-
works,*** gasworks,*** to improve navigable streams,*** or to do
158 Pa. St. 275, 27 Atl. 9(33. As to regulation by statute. Koretke v. Irwin
(Ala.) 13 South. 943; Printup v. Patton, 18 S. E. 311.
3"i TLomp. Neg. p. 556; Oakland K. Co. v. Fielding, 48 Pa. St. 321;
Cumberland V. R. Co. v. Hughes, 1 Pa. St. 141; Inhabitants of Lowell v.
Boston & L. 11. Co., 23 Pick. 24.
3B8 1 Thomp. Neg. p. 55U; Ward v. Atlantic & P. Tel. Co.. 71 N. Y. 81.
«B» 1 Thomp. Neg. 356; Parnaby v. Proprietors of Lancaster Canal Co., 11
Adol. & E. 223; Steele v. President Western Inland I^ock Nav. Co., 2 Johns.
283; Schuylkill Nav. Co. v. McDonough, 38 Pa. St. 73; Manley v. St. Helen's
Canal Co., 2 Hurl. & N. 840, 27 L. J. Exch. 159. See. also, Blnks v. South
Yorkshire R. Co.. 3 Best & S. 244, 32 L. J. Q. B. 26, 11 Wkly. Rep. 66, 7 Law
T. (N. S.) 350; Hooker v. New Haven & Northampton Co., 14 Conn. 146; Dela-
ware & R. Canal Co. v. Lee, 22 N. J. Law, 243; Weltner v. Delaware & H.
Canal Co., 4 Rob. (N. Y.) 234; Pennsylvania R. Co. v. Patterson, 73 Pa. St. 491;
Saylor v. Smith, 2 Wkly. Notes Cas. 687; Dunn v. Birmingham Canal Nav.
Co.. L. R. 8 Q. B. 42, 42 L. .T. Q. B. 34, 21 Wkly. Rep. 286; Cockbum v.
Brewash C. Co., 11 Wkly. Rep. 34; Reg. v. Delamere, 13 Wkly. Rep. 717;
Walker v. Goe, 4 Hurl. & N. 350; Wltherley v. Regent's Canal Co., 12 C. B.
(N. S.) 2, 6 Law T. (N. S.) 255; Winch v. Conservators, 31 Law T. (N. S.) 128;
Nleld V. London & N. W. R. Co., 23 Wkly. Rep. 60; Harrison v. Great
Northern R. Co., 3 Hurl. & C. 231, 10 Jur. (N. S.) 992. See. also, Delaware
R. Co. V. Com., 60 Pa. St. 367; Pennsylvania R. Co. v. Graham, 63 Pa. St
290: Hen cock v. Sherman, 14 Wend. (N. Y.) 58.
860 1 Thomp. Neg. p. 556; Smith v. London & St. K. Docks Co., L. R, 3
C. P. 326, 37 L. J. C. P. 217; Gibson v. Inglls, 4 Camp. 72; Coggs v. Bernard,
2 Ld. Raym. 900; Mersey Docks & Harbour Board Co. v. Glbbs, L. R. 1 H.
L. 93.
361 1 Thomp. Neg. p. 557; Wendell v. Baxter, 12 Gray (Mass.) 494; Rad-
way V. Brlggs, 37 N. Y. 256; Albany v. Cunliflf, 2 N. Y. 165; Pittsburgh v.
Grier, 22 Pa. St. 54; Buckbee v. Brown. 21 Wend. (N. Y.) 110; Mersey
Docks & Harbour Board v. Glbbs, L. R. 1 H. L. 93; Prescott v. Duquesnc,
48 Pa. St 118; Jeffersonvllle v. Ferry Co., 27 Ind. 100, 35 Ind. 19; Winpenny
v. Philadelphia, 65 Pa. St 135; Seaman v. New York, 3 Daly (N. Y.) 147;
John V. Bacon. L. R. 5 C. P. 437.
3 02 1 Thomp. Neg. p. 557; Matthews v. West Ix)ndon W^ater Works Co., 3
Camp. 403; Bayley v. Wolverhampton Water Works Co., 6 Hurl. & N. 241,
30 L. J. Exch. 57; Clothier v. Webster, 12 C. B. (N. S.) 790; Drew v. New
River Co., 6 Car. & P. 754; Water Co. v. Ware, 16 Wall. 566; Athinson v.
New Castle & G. Water Works Co., 2 Exch. Dlv. 441; Couch v. Steel, 3 El.
& Bl. 402, 23 L. J. Q. B. 121.
383 1 Thomp. Neg. p. 557; Dillon v. Washington Gas Light Co., 1 Mac-
Arthur, 626; EUls v. Sheffield Gas Consumers' Co., 2 El. &, Bl. 767; Weld v.
Gas Light Co., 1 Starkle, 180; People v. New York Gas Light Co., 64 Barb. 55.
As to liability of natural gas companies under changed privilege, see Hague
V. Wheeler, 157 Pa. St 324, 27 Atl. 714; Ohio Gas Fuel Co. v. Andrews, 50
Ohio St 695, 35 N. E. 1059.
364 1 Thomp. Neg. p. 557; Rex v. Kent, 13 East, 220; Harrison v. G. N. R.
Co., 3 Hurl. & C. 231, 10 Jur. (N. S.) 992.
^Il- 2] VAKIATIO.NS BASKD ON STATUS. 187
Other like work of a public nature, and to take toll ••• therefor, it is
bound to proceed in the construction and maintenance of such works
Tirith due regard to the safety of others, and to keep them in repair,
and is liable in a civil action to an individual who has sustained
damages in consequence of a failure of duty in either of these par-
ticulars."
Public Clumty.
Following Holliday v. St. Leonard,"" it was held in Massachu-
setts ^" that a coi^poration established for the maintenance of a
public charity is not liable for injury caused by its servants, if it
exercises due care in their selection. In a later decision '•* the
responsibility of public charity is determined upon a more logical
principle, — that where the charity is performing a purely public duty*
without profit, it is "no more liable for the negligence of officers and
agents than the city would be." The reason for this better opinion
is stated in Fire Ins. Patrol v. Boyd,'*' by Mr. Justice Paxson, "that,
when a public corporation has no property or funds but what have
been contributed for a special charitable purpose, it would be against
all law and all equity to apply the trust funds thus contributed to
compensate injuries inflicted by the negligence of its agents and serv-
ants." This is the generally recognized rule.*^* However, in Glavin
36 5 1 Thomp. Neg. p. 557; Brown v. Bouth Kennebec Agrlcoltural See., 47
Me. 275.
3«« 11 C. B. (N. S.) 192. Commissioners of public works serving gratuitously
were held not liable for negUgence in carrying on the work resulting in dam-
age unless they failed to exercise proper care in selecting those who actually
performed the work.
387 McDonald v. Massachusetts General Hospital, 120 Mass. 432 (a def fond-
ant held not liable for negligence of physician to patient for imnuthorized
assumption of hospital attendant to act as surgeon). Gf. Haas v. Missionary
Soc. (1893) 6 Misc. Rep. 281, 26 N. Y. Supp. 8(i8.
368 Benton v. Boston City Hospital, 140 Mass. 13, 1 N. E. 836. This case is
governed by the principle declared in HiU v. Boston, 122 Mass. 344. And see
Tindley v. Salem, 137 Mass. 171; Doherty v. Inhabitants of Braintree, 148
Mass. 497, 20 N. E. 106; Howard v. City of Worcester, 15:^ Mass. 426, 27 N.
E. 11.
869 120 Pa. St. 624. 15 Atl. 553; Id.. 113 Pa. St. 269, 6 Atl. 536. It was
accordingly held that a fire insurance patrol to save life and property, making
and dividing no profits or dividends, and not discriminating between property
insured and not insured, is not liable for the negligence of its employes.
3T0 Riddle V. Proprietors of Locks, etc., 7 Mass. 187; McDonald v. Massa-
chusetts General Hospital, 120 Mass. 432; Sproat v. Directors, 145 Pa. St.
598. 23 AU. 380; Ford v. School Dist.. 121 Pa. St 543, 15 Atl. 812; Patter-
188 VARIATIONS IN THE NORMAL BIGHT TO SUE. [Ch. 2
V. Hospital,*'* after an elaborate review of the authorities, it waa
determined that the analogy of ordinary pablic corporations should
be followed; that there should be corresponding liability for non-
performance and misperformance of the duties imposed by its char-
acter; and that its general trust funds are liable to satisfy a judg-
ment in tort recovered against it for the negligence of its officers
or servants.
Courts are inclined to exercise strictness in the definition of a
charity, within the meaning of this exemption. Thus, although the
maintenance of a ferry by an educational corporation is ultra vires,
such corporation is liable for injuries to a passenger for hire caused
by negligence of employ 6 in charge.*'* JBowever, that a gift may
have been prompted by an ulterior and selfish motive, as that a rail-
road company, by the establishment of hospitals, would protect
itself from excessive claims for injuries resulting to its servants,
does not destroy its character as a charity.'"
son y. Pennsylvania Reform School, 92 Pa. St. 229; Erie v. Schwingle, 22
Pa. St 384; Van Tassell v. Hospital, 60 Hun, 585, 15 N. Y. Supp. 620;
Haas V. Missionary Soc., 6 Misc. liep. 281, 26 N. Y. Supp. 868: Laubheim v.
Steam Ship Co.. 107 N. Y. 228, 13 N. E. 781; Maxmilian v. Mayor, 62 N. Y.
160; Richardson v. Coal Co., 6 Wash. 52, 32 Pac. 1012; Williams v. Indus-
trial School, 95 Ky. 251, 24 S. W. 1065. And see 16 Am. & Eng. Enc. Law,
466; Id. 813; 29 Am. Law Reg. 209; 28 Am, Law Reg. 669; Secord v. Rail-
way Co., 18 Fed. 229; Union Pac. Ry. Co. v. Artist. 9 C. C. A. 14, 60 Fed.
365; Russell v. Men of Devon, 2 Term R. 667; Feoflfees of Herlot's Hospital
V. Ross, 12 Clark & F. 506; Sherboume v. Yuba Co., 21 Cal. 113; Brown v.
Vinalhaven, 65 Me. 402; Mitchell v. Rockland, 52 Me. 118; Richmond v.
Long's Adm'r, 17 Grat. 375; Ogg v. Lansing, 35 Iow«, 495; Murtaugh v.
St Louis, 44 Mo. 479; HamUton Co. v. Mighels, 7 Ohio, 109.
87112 R. J. 411.
ST 2 Nims V. Mt. Hermon Boys' School, 160 Mass. 177, 35 N. E. 776.
37 3 Sanborn, J., in Union Pac. Ry. Co. v. Artist, supra. And, generally, as
to what is a public charity, see Fire Ins. Patrol v. Boyd, supra; Philadelphia
V. Masonic^ Home, 160 Pa. St. 572, 28 Atl. 954; Episcopal Academy v. Phila-
delphia, 150 Pa. St. 565, 25 Ati. 55; Northampton Co. v. Lafayette College.
128 Pa. St 132, 18 Ati. 516; Jackson v. Phillips. 14 Allen (Mass.) 539; Goooh
V. Association, 109 Mass. 558.
Ch. 2] VARIATIONS BASED ON CONDUCT OF PLAINTIFF. 181>
VABIATIONS BASED ON CONDUCT OF FLAINTIPF.
62. Plaintiff may deprive himself of the right to relief—
(a) By his own wrongdoing;
(b) By his consent.
SAME— WBONQDOING BY PLAINTIFF.
63. The law will not Interfere to do Justice between, nor
lend its aid to, those that have violated it. But, in
order that plaintiff's wrongdoing shall bar his right
to recover damages suffered at the hands of an-
other, it must have been the legal cause of such
damages.
64. While the mere fact that a person or his property are
involved in wrongdoing does not create the duty
on the part of another of exercising diligence to
avoid doing harm, it does not Justify the latter
in—
(a) Malldous or wanton maltreatment, or in
(b) Failing to take proper care to avoid harm after the
latter has, or ought to have, knowledge of impend-
ing and avertible danger.
It is a general principle of jurisprudence that courts will not aid
a wrongdoer. "He who seeks equity must do equity." He must
come into equity with clean hands.*^* "Ex turpi causa,'^* ex doio
malo non oritur actio," '^* said the civil law. Therefore a Confed-
erate officer, who, while taking reports to his superior, was injured
by the negligence of the common carrier transporting him, cannot
recover for negligence on the part of the carrier, because the injury
occurred while both parties were violating public law.'^' The lim-
8T4Gooley, Torts, 157. Injunction to restrain nuisance refused. Topeka
Water Supply Co. v. City of Potwln, 43 Kan. 40i, 23 Pac. 578.
87 6 Quirk V. Tliomas, 6 Mich. 76-109. "He who sows must reap.*' Mc-
Daniels v. Walker. 44 Mich. 83-85, 6 N. W. 112.
87e Pennington v. Todd, 47 N. J. Eq. 571, 21 Atl. 297.
«T7 Turner v. Railroad Co., 63 N. C. 522-526. One who violates a reason-
190 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
its of this sort of doctrine are, upon the authorities, a little shadowy,
and in places the decisions aVe in discord, and the reasoning incon-
sistent.'^® On the one hand, the law will neither apportion dam-
ages, nor reimburse those who willfully join in wrongdoing. *'I
know of no case in which a person who has committed an act de-
clared by law to be criminal has been permitted to recover compen-
sation against a person who acts jointly with him in the commission
of a crime. ♦ ♦ ♦ a person who is declared by the law to be
guilty of a crime cannot be allowed to recover damages against an-
other who has participated in its commission." "•
But, on the other hand, principals in a prize fight may recover
from each other for damages done in their illegal battle.*®** If one
cannot make out his case without showing part taken by him in an
unlawful civil transaction, he is denied judicial redress. One wrong-
doer can have no right against another.'*^ Thus, a fraudulent
transaction, in which both parties have knowingly participated,
will not support a judgment for the plaintiff, nor a judgment for af-
firmative relief for the defendant.**'* Nor can one recover if he
able station regulation, the result of which is the damage complained of,
camiot recover. Sullivan v. Railroad Co., 30 Pa. St. 234; Drake v. Pennsyl-
vania R. Ck).. 137 Pa. St. 352. 20 Atl. 904.
ST 8 Bish. Noncont. Law, § 59.
379 Lyndhurst, C. B., in Colburn v. Patmore, 1 Cromp. M. & R. 73-83;
Fivaz V. NlchoUs, 2 C. B. 501; Martin v. Wallace, 40 Ga. 52. In Riggs v.
PaUner (N. Y. App.) 22 N. E. 188, 24 Am. Law Rev. 141, it was decided that
a beneficiary who murders the testator cannot take under a will. In Owens
V. Owens, 100 N. C. 240, 6 S. E. 794. it was held that a wife did not forfeit
her right of dowry by assisting another person to murder her husband.
880 Post, p. 203, "Consent."
881 No action lies for pirating a libelously immoral book. Stockdale v.
Onwhyn, 5 Bam. & C. 173, 2 Car. & P. 163; Lorrence v. Smith, Jac. 471; Tur-
ley V. Tucker, 6 Mo. 583; Hardman v. Wilcox. 9 Bing. 382; Stephenson v.
Little, 10 Mich. 434; Winship v. Neale, 10 Gray, 382; Ridaely v. Bond, 17 Md.
14; Hurd v. Fleming, 34 Vt 169; Hume v. Tufts, 6 Blackf. (Ind.) 136; Howe
V. Farrar, 44 Ma 233; Muggridge v. Eveleth, 9 Mete. (Mass.) 233; Buckley v.
Gross, 3 Best & S. 566; Merry v. Green, 7 Mees. & W. 623; Ransom v. State.
22 Conn. 153; Putnam v. Wyley, 8 Johns. (N. Y.) 337.
J»H2 BuchteUa v. Stepanek, 53 Kan. 373, 36 Pac. 749. Et vide Peacock v
Terry, 9 Ga. 137. And, generally, see Northwestern Mut. Life Ins. Co. v.
Elliott, 6 Fed. 225; Thomas v. Brady, 10 Pa. St. 104; Northrup v. Foot, 14
Ch. li] VARIATIONS BASED ON CONDUCT OF PLAINTIFF. 191
knowingly participated in an attempt to defraud/" On the same
principle there is authority for the statement that when the con-
ductor of a train disobeys the rules of the company for which he is
acting, in regard to the collection of fares from a traveler, or in re-
spect to some other matters, such, for instance, as pemiitting him
upon a forbidden part of the train, or upon a train not allowed to
carry passengers, the traveler has all the rights of a passenger, if
he has no notice, express or implied, of the rule, or of the conductor's
disobedience. But if a person solicits and secures free transporta-
tion, or if he rides upon a part of the train from which passengers
are excluded, or takes passage upon a train not allowed to carry
passengers, knowing that his acts are against the rules of the car-
rier, and that in permitting it the conductor is disobedient, he is
guilty of fraud, and not entitled to a passenger's rights.'***
(htinection cis Cause.
In order that a per8on*s wrongdoing may bar his recovery, it must
have been connected as the legal cause of the wrong. It is not
sufficient for the defendant to show merely that at the time the plain-
tiff was violating the law. Mere violation of the law (even upon
conviction for a crime), or wrongdoing in some particular, does not
make the offender an outlaw.'** Thus, because one may have been
Wend. (N. Y.) 249. So no action lies for fraud In the sale of a lottery ticket.
Kitchen y. Greenabaum, 61 Mo. 110. But cf. Catts v. Phelan, 2 How. 370. Et
vide Robeson v. French, 12 Mete. (Ma.s.s.) 24; Gunderson v. Richardson, 5(5
Iowa, 56, 8 N. W. 683. A trespasser can obtain no property in bees. Rexroth
V. Goon, 15 R. I. 35, 23 Atl. 37. Trover will not He for a note given in a
transaction by which statutes against the liquor traflic are intended to be
avoided. Miller v. lAmery, 62 Vt. 166, 20 Atl. 199. And see Rogers v.
Miller, 62 N. H. 131.
383 Fisher v. Metropolitan Life Ins. Co., 160 Mass. .'^86, 35 N. E. 849.
»8* McVeety v. St Paul, M. & M. R. Co., 45 Minn. 2<«, 47 N. W. 800; Toledo,
W. & W. Ry. Co. V. Brooks, 81 111. 1M5; Toleilo, W. & W. Ry. Co. v. Beggs.
85 111. 80; Robertson v. New York & E. R. Co., 22 Barb. 91; Union Pae. Ry.
V. Nichols, 8 Kan. 505; Prince v. I. G. & N. Ry. Co.. 64 Tex. 144; Gulf, C. & «.
P. Ry. Co. V. Campbell, 76 Tex. 174. 13 S. W. VX On the other hand, a
passenger on a train with a limited ticket which has expired not a trespasser.
Arnold V. Pennsylvania R. Co., 115 Pa. St. 135, 8 Atl. 213.
386Norri8 V. Litchfield, 35 N. H. 271. "He who violates the law must
suffer its penalties; but yet, in all other resi)ects he is under its protec-
tion and entitled to the benefits of its remedies." Accordingly, the mere fact
1-J2 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2
riding a horse faster than an ordinance allowed, or because a boat-
man in a shell, or a student after a football game, may have been so
insufficiently clad as to be guilty of indecent exposure, third persons
are not justified in stoning him, as a violator of the law, nor would
his wrong prevent his recovery from them.*** The fact that a per-
son was drunk at the time of his injury will not prevent his recovery,
unless his condition is connected as the cause of his suffering.**^
Contributory negligence on the part of the plaintiff will bar his
recovery of damages only when it is the legal cause of the harm.*'*
Thus, ordinarily, servants who violate the rules of their master,
which are in force, cannot, in the absence of error in such rules or
orders,*** recover against their master for consequent injuries, pro-
vided their disobedience is the proximate cause of the injury. But
that plaintiff was plotting for a wager contrary to law did not prevent his
recovery from defendant for willfully running down his sleigh. Welch v.
Wesson, 6 Gray, 505, per Merrick, J. Nor would the fact that plaintiff was on
the wrong side of the road justify defendant into driving into him. Damon
V. Sdtuate, 119 Mass. 6^-68; Spofford v. Harlow, 3 Allen, 176. And see Steele
V. Burkhardt, 104 Mass. 59, contrastingi Welch v. Wesson, supra, with Gregg
y. Wyman, 4 Gush. 322, and Way v. Foster, 1 Allen, 408. And see McGrath
V. Merwin, 112 Mass. 467; Woodman v. Hubbard, 25 N. H. 67; Wentworth v.
Jefferson, 60 N. H. 158; Lyons v. ChUd, 61 N. H. 72. And it will presently
)>e seen that even a convict can recover damages for a tort committed against
bim while he was under sentence.
889 Maguire v. Middlesex Ry. Go., 116 Mass. 239.
««T Ward v. Chicago, St. P., M. & O, Ry. Go., 85 Wis. 771, 55 N. W. 771; Wil-
Uams T. Edmimds, 75 Mich. 92, 42 N. W. 534. So one may not willfuUy run
another down, though he be trotting for money contrary to statute. W^ch v.
W>sson, 6 Gray, 505. And see Gates v. Burlington, G. R. & N. R. Go., 39 Iowa,
45; Norris v. Litchfield, 35 N. H. 271. In an action by a woman for damages
for personal injuries, evidence that she committed adultery after the accident
is not admissible for the purpose of disproving her statement as to the extent
of her injuries. Jollet St Ry. Go. v. Gall, 143 lU. 177, 32 N. B. 389. If plain-
tiff has been riding on a platform contrary to rules, but after he has alighted
is injured by the backing up of a car, he can recover; he is guilty of no con-
tributory wrong. Western Ry. of Alabama v. Mutch, 97 Ala. 194, 11 South.
894, followed. Gadsden & A. U. Ry. Co. v. Causler, 97 Ala. 235, 12 South. 439.
And, further, see Illinois Gent. R. Go. v. Godfrey, 71 lU. 500; Bullard v. Mul-
ligan, 60 Iowa, 416, 29 N. W. 404; Garter v. Railway Go., 98 Ind. 552.
8«8Post, p. 971, "Gontributory Negligence."
»«• Enright v. Toledo, A. A. & N. M. Ry. Go., 93 Mich. 409, 53 N. W. 536;
Greenway v. Gonroy, 160 Pa. St 185, 28 Atl. 692; Ghicago, M. & St P. Ry.
Cb. 2] VARIATIONS BASKD ON CONDUCT OF PLAINTIFF. 198
the mere yiolation of a role by a servant does not constitute contrib-
atory negligence, if the injury would have happened just the same
whether the servant was negligent or not.""® But wherever one
has violated the law, and such violation contributes directly or ap-
proximately to his alleged injury, he has never been permitted to
recover for it."** Such an unlawful act is not merely evidence of
contributory negligence, but is a conclusive bar to recovery. A
plaintiff's violation of law, therefore, should not be discussed in con-
nection with the exercise of due care, but treated from the point of
view of connection as cause."*'
As to how far what Mr. Bishop felicitously calls ^'collateral wicked-
ness'^ will prevent one who travels on Sunday, not for **works of ne-
cessity or charity," from recovering for wrong done him, is much in
dispute. On the one hand, it is held that the law will not lend its
Co. y. Koss, 112 U. S. 377, 5 Sup. Gt. 184; Northern Pac. R. Co. t. Cavanaugb,
2 C. C. A. 358, 51 Fed. 517.
soovv^bite V. Railway Co. (Miss.) 10 South. 248; Horan v. RaUway Co.
aowa) 5G N. W. 507; Louisville & N. R. Ca v. Ward, 10 C. C. A. 166, 61 Fed.
d27; Richmond & D. R. Co. y. Brown, 80 Va. 740, 17 8. E. 132; LouisvlUe St N.
R. Co. V. Pearson, 07 Ala. 211, 12 South. 176.
891 "Xt will defeat an action for tort If the injured party, in making his cuKe,
mnst show that he was at the time of the injury violating a positive statute,
or committing malum in se, provided such violation of law or crime con-
tributed to the injury." Taft, C. J., in Louisville & N. R. Co. v. East Ten-
nessee. V. & G. Ry. Co., 0 C. C. A. 314, 60 Fed. 003-008.
892 Newcomb v. Boston Protective Department, 146 Mass. 506, 16 N. E. 555,
where plaintiff recovered for injuries caused by defendant's careless driving
while plaintiff was sitting in his cab. The evidence tended to show that
plaintiff had not placed his horse and vehicle parallel with the sidewalk, as
roquired by ordinance, so as to avoid obstnicting the street Cf. Neanow
V. Uttech, 46 Wis. nsi. 1 X. W. 221; Steele v. Burkliardt, 104 Mass. 50. Bt
vide post, p. 877, "Negligence," "Law of the Road," "Statutory Negligence." The
confusion in the Massachusetts cases, it is said, may be reconciled by saying
that a concurring violation of the Sunday laws is in Itself a contributory
cause, while the violation of any other law is not. Mr. Hallam, in 30 Cent
lAw J. 270 et seq. An action for loss of goods by negligence against a com-
mon carrier may be maintained although the bill of lading involved a rebate,
contrary to the provisions of the interstate commerce act Merchants' Cot-
ton Press & Storage Co. v. Insurance Co. of North America, 151 U. S. 368,
14 Sup. Ct. 367. And see Insurance Cos. v. Carriers' Cos., 01 Tenn. 337, 19
S. W. 735.
I.AW OF TORTS— 18
194 VABIATIONS IN TH£ NORMAL RiaHT TO SU£. iCbt- 2
assistance to one violating it, that failure to comply with statutorj
requirements is a species of negligence, and that, therefore, the law
will deny redress to any one engaged in such violation.*" On the j
other hand, it is urged, with apparent weight of reason and au-
thority, that the wrong of a railroad, in not furnishing safe machin- |
ery, proper servants, and the like, <xc the wrong of a municipality,
in neglecting to repair its streets, being disconnected from the wrong
of the person who may elect to travel on Sunday, is the juridical
cause of the injury, and that denial of the right to recover would en-
courage negligence and multiply accidents; **^ that mere proximity
in time is no part of the definition of ^'proximate cause"; and that
the wrong is to the state, without breach of any duty to the injured
plaintiff.***
>•> Bucher v. Fitzburg R. Co., 131 Mass. 156. And see Davis v. Somerville,
128 Mass. 504, Bos worth v. Swansy, 10 Mete. (Mass.) 363; Jones v. Andover,
10 Allen, 18; Stanton v. Metropolitan R. Ck>., 14 Allen, 485; McOrath v. Mer-
win, 112 Mass. 467; Connolly y. Boston, 117 Mass. 64; Smith v. Boston & M.
R. Co., 120 Mass. 490; Day v. Highland St. Ry. Co., 135 Mass. 113. The
Massachusetts nsle was changed by St 1884, c. 37. This act does not, however,
apply to Injuries occurring before its passage. Read v. Boston & A. R. Co.,
140 Mass. 109, 4 N. E. 227. Cf. reasoning of Massachusetts cases with that
found in Olesen v. City of Plattsmouth, 35 Neb. 153, 52 N. W. 848; Cratty
y. Bangor, 57 Me. 423; Johnson v. Irasburgh, 47 Vt 28; Holcomb v. Danby,
51 Vt 428.
C04 Sutton V. Town of Wauwatosa, 29 Wis. 21; Bigelow, Cas. Torts, 711;
McArthur v. Green Bay & Mississippi Canal Co., 34 VTis. 139. And see Knowl-
ton V. Milwaukee City Ry., 59 Wis. 278. 18 N. W. 17; Plata v. Cohoes, 89 N.
Y. 219; Opsalil v. Judd. 30 Minn. 126. 14 N. W. 575; Piollet v. Simmers. lOtJ
Pa. St 95; Schmld v. Humphrey. 48 Iowa, 652 (reviewing cases); Tingle v.
Chicago. B. & Q. Ry., 60 Iowa, 333, 14 N. W. 320; Kerwhaker v. Cleveland, C.
& C. R., 3 Ohio St 172; Philadelphia, W. & B. Ry. v. Philadelphia & Havre
de Grace Steam Towboat Co., 23 How. (U. S.) 209; Baldwin v. Barney, 12 R.
I. 392.
-9& Sutton V. Town of Wauwatosa, supra; 1 Shear. & R. Neg. 26. fit vide
Carroll v. Staten Island R. Co.. 58 N. Y. 126; Plata v. Cohoes, 89 N. Y. 210:
Johnson v. Missouri Pac. Ry. Co., 18 Neb. (X90. 20 N. W. 347; Louisville, N.
A. & C. Ry. Co. V. Frawley. 110 Ind. 18, 9 N. E. 594; Baldwin v. Barney, 12
U. I. 392. Cf. Mohney v. Cook, 26 Pa. St 342; Rauch v. Lloyd, 31 Pa. St
358; Piollet v. Simmers, 106 Pa. St 95. On the same principle, it is no defense
to an action for negligent shooting that at the time of the Injury plaintiff
and defendant were unlawfully engaged in shooting on the Sabbath. Qross
T. Miller (Iowa) 61 N. W. 385.
Ch. 2] VARIATIONS BASED ON OONDUGT OF PLAINTIFF. 195
Wanton Injury.
The mere fact that a person has violated the law may not prevent
him from recovering for a subsequent wrong done him,'** but he does
not stand on the same footing as an innocent person. Thus, no duty
of diligence is owed to a trespasser, intruder, mere volunteer, or
bare licensee. Such a person cannot recover under circumstances
which would entitle a person lawfully in the same position to main-
tain an action for damages suffered."^ Therefore, if a trespassing
person, of full age, a child,'** or an animal runs into a barrier, exca-
vation, or other source of danger, there is no actionable wrong. The
owner of the premises is not bound to provide safeguards.***
Merely that a man is a trespasser does hot justify another in reck-
s9« Ante, pp. 102-194, "Ck)nuectioD as Cause." And see Fletcher y. Cole, 26 Vt
170. See Gray v. Ayres, 7 Dana (Ky.) 375; Love v. Moynehan, 16 lU. 277;
Ogdcn V. Claycomb, 52 lU. 965; Gizler v. W^ltzel, 82 lU. 392; Jones v. Gale,
22 Mo. App. 637; PhllUps v. Kelly, 29 Ala. 628. A convict may recover for
injuries inflicted on him. See Chattahooche Brick Ck). v. Braswell (Ga.) 18
S. B. 1015. Cf. O'Hare v. Jones (Mass.) 37 N. E. 371.
s»T Nave v. Flack/ 90 Ind. 205; Philadelphia & R. R. Go. v. Hummell, 44
Pa. St. 375 (cf. Brown v. Hannibal & St. J. R. Co., 50 Mo. 461); Rosenbaum
V. St. Paul & D. R. Co., 38 Minn. 173, 36 N. W. 447; Tonawanda R. Co. v.
Mangier, 49 Am. Dec. 239; McVeety v. St Paul, M. & M. Ry. Co., 45 Minn.
268. 47 N. W. 809; Kirtley v. Railway Co., 65 Fed. 386; Lary v. Clevdand,
C, C. & I. R. Co., 78 Ind. 323.
3 08 Rodgers v. Lees, 140 Pa. St. 475, 21 Atl. 399; Mitchell v. New York, L. B.
& W. R. Co., 146 U. S. 513, 13 Sup. Ct 259; post, p. 890, "Negligence"; Hedln v.
City & Suburban Ry. Co. (Or.) 37 Pac. 540. The rule requiring locomotive engi-
neers and street-car drivers to exercise vigilance in looking out for dangers to
passengers and persons on the track, and to use reasonable diligence to pre-
vent injury to a person after his peril is discovered, has no application to a
case where dectiient not only assumed the attitude of a trespasser, but il-
legally interfered with tiie movement of the car by Jumping on a moving
car and whipping mules with driver's whip, and thereby caused his own
death. Taylor's Adm'r v. South Covington & C. St. Ry. Co. (Ky.) 20 S. W.
275.
sfto Sweeny v. Old Colony & N. R. Co., 10 AUen, 368; Maynard v. Boston
& M. R. Co., 115 Mass. 458; Trask v. Shotwell, 41 Minn. 66. 42 N. W. 699;
Blatt V. McBarron, 161 Mass. 21, 36 N. E. 468 (where the trespass was com-
mitted by mistake); Mergenthaler v. Kirby (Md.) 28 Atl. 1065 (where a boy
stealing lead was scalded by escaping steam); Augusta R. Ck>. v. Andrews,
89 Ga. 653, 16 S. E. 203, where the damage was caused by electricity. So
trespassers on cars and engines are not ordinarily entitled to the exercise of
196 VARIATIONS IN THE NORMA!. RIGHT TO SUE. [Ch. 2
lessly OP wantonly doing damage to him.*®' The rule has been stat-
ed (perhaps too broadly), ''A trespasser is liable to an action for an
injury he does, but he does not forfeit his right of action for an
injury sustained." *®^ Therefore, if a claimant of real estate, out of
possession, resorts to force and violence amounting to a breach of
peace, to obtain possession from another claimant, in peaceable
possession, and personal injury arises thereupon to the latter, the
former is liable in damages for the injury, without regard to the
legal title, or right of possession.*®' In a similar manner, a tres-
passer may recover for damages done him by a spring gun.^®* On
the same principle, where one allowed her horses to run at large, in
violation of a city ordinance, and they strayed upon a railroad track,
she could not recover for injuries done them by a passing train
without showing that the railroad company's employes were not
only negligent, but guilty of reckless and wanton misconduct, in
diligence to ayoid harm. Andrews v. Ft Worth & D. C. R. Co. (Tex. Civ. App.)-
25 S. W. 1040; Vertrees v. Newport News & M. V. R. Co. (Ky.) 25 S. W. 1. So
08 to trespassing animals. Knight v. Albert, 6 Pa. St. 4T2. Et vide Bush v.
Brainard, 1 Cow. 78; Hess v. Lapton, 7 Ohio, 210. But see Barnes v. Ward, Ih
O. B. 392-420, approved by Lynch v. Nurdin, 1 Q. B. 29. Compare How-
land V. Vincent, 10 Mete. (Mass.) 371, with Birge v. Gardner, 19 Conn. 507.
400 pianz V. Boston & A. R. Co., 157 Mass. 377, 32 N. E. 350; Phillips v.
Wllpers, 2 Lans. (N. Y.) 389. "Since the business of the courts is to enforce
obedience to the law they cannot lawfully assist a suitor in any effort to
break it. At the same time, a man's being a sinner, whether against the
divine law or the human, does not authorize another sinner to maltreat himr
so that in an action of torts a bad man stands on the same footing as a good
one. But neither can have Judicial assistance in breaking the law, or com-
pensation for having broken it. or a refund of what he has expended in it»
breach.'* Bish. Noncont. Law, S 54.
*oi Barnes v. Ward, 9 C. B. 392; post, p. 890, "Negligence."
*02 Denver & R. Q. Ry. Co. v. Harris, 122 U. S. 597. 7 Sup. Ct 1286, ap-
proved Lake Shore & M. S. Ry. Co. v. Prentice. 147 U. S. 101-107, 13 Sup.
Ct. 261; Ogden v. Claycomb, 52 111. 365; Trogden v. Henn, 85 111. 237.
«os Bird v. Holbrook, 4 Bing. 628; Hooker v. MUler, 37 Iowa, 613. And see
Aldrich v. Wright, 53 N. H. 398; ChurchiU v. Hulbert, 110 Mass. 42; post,
p. 890, "Negligence." Generally, as to the right to protect private grounds-
agalnst trespass by means of spring guns and land traps, see article in 28 Ir^
Law T. 277.
Ch. 2J VARIATIONS BASKD ON OONDUCJT OF PLAINTIFF. 197
caasing the injury.*®* This case, however, statea the law too strong-
Ij against the plaintiff.
Negligent Injury,
While it is said that wrongdoing cannot create a duty,*®" knowl-
edge of peril to a wTongdoer may require the exercise on the part of
the defendant of diligence to avoid harm. Thus, in what is called
an extreme case,*®® a man so drunk as to be helpless, mentally and
physically, was put off a railroad train by a conductor, who knew
his condition. The passenger was severely frozen, and the company
was held liable.*®^ With respect even to a trespasser, for example,
*o* Vanhom v. Burlington, C. R. & N. Ky. Co., 63 Iowa, 67. 18 N. W. 679.
So a railroad company is not liable for injury to a person walking on its
tracks unless its agents are guilty of willful wrong or wanton negligence.
Yeimer v. Alabama 6. S. R. Co. (Ala.) 15 South. 872; Maynard v. Boston &
M. Ry., 115 Mass. 458; DiUon v. Connecticut R. R. Co., 154 Mass. 478, 28
N. E. 890; Newport News & M. V. R. Co. v. Howe, 6 U. S. App. 172, 3^ C.
C. A. 121, 52 Fed. 3G2; Nave v. Alabama G. S. R. Co., 96 Ala. 264, 11 South.
391; Chisholm v. Old Colony R. Co., 159 Mass. 3, 33 N. E. 927; Dooley v.
MobUe & O. R. Co., 69 Miss. 648, 12 Soutb. 956. Where defendant willfully
set his dogs on plaintiff's colts, without taking any precaution to prevent
Injury to them, he is liable for damages resulting from their being driven into
a barbed-wire fence, though they were in his pasture. Aspegren v. Kotas
(Iowa) 59 N. W. 273. Plaintiff negligently went between defendant's rail-
road track and a high platform in front of moving cars. After being struck
by one car, she threw herself on the ground to save herself from further in-
jury, and one of the brakemen who saw her gave the engineer an additional
signal to proceed, which he did. Held,' that the trainmen's wantonness was
a question for the jury. Esrey v. Southern Pac. R. Co., 88 Cal. 399, 26 Pac.
211.
«0Q Lary v. Cleveland, C, C. & I. R. Co., 78 Ind. 323; Hestonville Pass.
R. Co. v. Connell, 88 Pa. St. 520; Morrissey v. Eastern R. Co., 126 Mass.
377; McAlpin v. Powell, 70 N. Y. 126; Snyder v. Hannibal * St. J. R. Co..
60 Mo. 413; Brown v. European & N. A. Ry. Co., 58 Me. 384; Atchison &, N.
R. Co. V. Flinn, 24 Kan. 447.
*o« Indianapolis, P. & C. R. Co. v. Pitzer, 109 Ind. 179-185, 6 N. E. 310, and
10 N. E. 70.
407 Louisville, C. & L. R. Co. v. Sullivan, 81 Ky. 624; Atchison, T. & 8. F.
R. Co. V. Weber, 33 KaA. 543, 6 Pac. 877. In removing trespassers the com-
pany is bound to afford a reasonable opportunity t(» leave without exposing
to unnecessary danger. Texas & P. Ry. Co. v. Mother, 5 Tex. Civ. App. 87,
24 S. W. 79. Where a volunteer, assisting defendant's servants, places him-
198 VARIATIONS IS THE NORMAL RIGHT TO SUE. [Ch. 2
•
on a railroad track, tbe company is bonnd to exercise proper care to
warn and to avoid striking such a person after its servants on the
engine know the dangerous situation, although the company
is not bound to keep a lookout for the benefit of trespassers.*** And
if the jury should find that after the discovery of such position the
company, or its servant, could have avoided the damage complained
of, but negligently failed to do so, the trespasser may maintain his
action for consequent damages.** • On the same principle, the mere
fact that property was used for gambling purposes only is no de-
fense to an action for a negligent injury to it.*^*
self in danger through his own neglig^ice, and the servants, after discover-
ing his position, fall to exercise reasonable care to avert the danger, defend-
ant Is liable. Evarts v. St Paul, M. & M. Ry. Co., 56 Minn. 141, 57 N. W.
459.
*o8 Scheffler v. MlnneapoUs & St L, Ry. Ck)., 32 Minn. 518, 21 N. W. 711;
Planz V. Boston & A. R. Co., 157 Mass. 377, 32 N. E. 356; Brown v. Lynn, 31
Pa. St. 510; IsbeU v. New York & N. H. R. Co., 27 Ckinn. 393, and cases
cited; Baltimore Traction Ck). v. Wallace, 77 Md. 435, 26 Atl. 518; Louisville
& N. R. Ck). V. Kellem's Adm'x (Ky.) 21 S. W. 230; Curry v. Chicago & N.
W. R. Co., 43 Wis. 665; Hepfel v. St Paul, M. & M. Ry. Co., 49 Mlun. 263,
51 N. W. 1049; Haden v. Sioux City &, P. R. Co. (Iowa) 60 N. W. 537. So a»
to cattle running at large. Johnson v. Minneapolis & St L. Ry. Co., 43 Minn.
207, 45 N. W. 152. But see Cincinnati & Z. R. Co. v. Smith, 22 Ohio St 227.
«oo In an action against a street-car company for the death of a child, it
was not error to charge that, though the child was negligent In going on
the track, if defendant's servants saw her dangerous position, it was their
duty to exercise all the diligence then possible to avoid injuring her. Wal-
lace V. City & Suburban Ry. Co. (Or.) 37 Pac. 477. It Is culpable negligence
for the driver of street cars to approach without watchfulness a street cross-
ing where he has reason to suppose that children may be coasting down a
hill and across the car track, though such conduct on the part of children Ib
milawful. Strutzel v. St Paul City Ry. Co., 47 Minn. 543, 50 N. W. 690; Vir-
ginia M. R. Co. V. White, 84 Va. 498, 5 S. E. 573; Guenther v. Railroad Ck).,
95 Mo. 286, 8 S. W. 371; Reilly v. Railroad Co., 94 Mo. 600, 7 S. W. 407;
Texas & P. R. Co. v. O'Donnell, 58 Tex. 27; Isabel v. Railroad Co., 60 Mo.
475; Meeks v. RaUroad Co., 56 CaL 513; Atchison, T. & S. F. R. Co. v.
Smith, 28 Kan. 541; Reyser v. Railway Co., 66 Mich. 390, 33 N. W. 867; Frick
V. Railway Ck)., 75 Mo. 595.
4i« Gulf, C. & S. F. Ry. Co. v. Johnson (Tex. Civ. App.) 25 S. W. 1015.
Gb. '2] VARIATIONB BASED ON CONDUCT OF PLAIKTIFF. 199
8AMB— CONSENT.
66. No action can be maintained for damages resulting
firom conduct suffered by consent. But this exemp-
tion is limited—
(a) To cases involving consent as distinguished from
mere knowledge, and the exercise of option as dis-
tinguished from compulsion; and
(V) To cases coming within the limits fixed by the per-
son assenting and permitted by law.
After a tort has been committed, the sufferer may waive it; may
accept something in satisfaction of it, and then release it. Consent
after the wrong may bar action. On the same principle, before the
damage is done the person who endures the harm may, by his con-
sent, put himself in such a position that he cannot complain. Harm
suffered by consent is not, in general, the basis of a civil action.
This is the meaning of the maxim, ^^olenti non fit injuria.'' ^^^ The
English phrase is, ^'Leave and license." ^^*
*lf the defendant is guilty of no wrong against the plaintiff, ex-
cept a wrong invited and procured by the plaintiff for the purpose
of making it the foundation of an action, it would be most unjust
that the procurer of the wrongful act should be permitted to profit
by it" Accordingly, if one person procure another to publish defam-
atory matter concerning him, he cannot afterwards sue therefor.***
411 Lord Esher said concerning this maxim: *'I need hardly repeat that I
detest the attempt to fetter the law by maxims. They are almost invariably
misleading. They are for the most part so large and general in their language
that they always include something which really is not intended to be in-
cluded in them." Yarmouth v. France, 19 Q. B. Div. 647-653; Broom, Leg.
Max. (8th Ed.) 2G7. A valuable article, with numerous citations, on the doc-
trine "Volenti non fit injuria," in actions of negligence, by Charles Warren,
8 Harv. I^iw Rev. 457.
*ia Pol. Torts, c. 4, subd. 10.
41 s Knowlton, J., in Howland ▼. Manufacturing Co., 156 Mass. 543, 570, 671,
31 N. B. 656; 1 Ames & S. Lead. Cas. 422, citing in note King y. Waring,
5 Esp. 13; Rogers v. Clifton, 3 Bos. & P. 587, 592; Weatherston y. Hawkins,
1 Term R. 110, 112; Smith y. Wood, 3 Camp. 323; Palmer y. Hummerston,
1 Cababe & El. 36; Gordon y. Spencer, 2 Blackf . (Ind.) 286; Sutton y. Smith,
13 Mo. 120 (85).
200 VARIATIONS IN THE NORMAL RIQHT TO SUE. [Ch. 2
So, wb^re a person under lawful arrest, at Ms own request, is con-
fined in a jail other than that specified by law, he cannot recover for
false imprisonment*^*
Consent to commit what would otherwise be trespass carries with
it exemption from the necessary results of what was consented to.***
Where one impliedly or expressly invites or permits another to come
upon his premises, or to use his premises in a way otherwise wrong-
ful, he cannot complain of such conduct as a trespass.*** On the
same principle, risk may be assumed. The consent thus involved
may bar right of action. A man who unnecessarily goes, or sends
his dog, where he is advised there are dangers, like a spring gun,
does so at his peril.*"
Kmndedge and Option,
The maxim is, **Volenti non fit injuria," not "scienti." Knowledge
is not consent. If one both know of a danger or of a wrong, and
then willingly, without duress, consent to it, he cannot be heard to
claim damages consequent upon this conduct ; but if he merely had
knowledge, without either appreciation of risk, or opportunity to
exercise an option, the maxim cannot be applied to him. There is
no actual breach of a duty if the person injured, knowing and appre-
^i« Ellis V. Cleveland, 54 Vt 437. So consent may bar a right to sue in mali-
cious prosecution for abuse of process. Reams t. Pancoast, lU Pa. St 42,
2 Ati. 205.
41B Thus consent to use land for right of way carries with it consent to
drain or ovei*flow land in the proper use of the right of way. Updegrove v.
Pennsylvania S. V. R. Ck>., 132 Pa. St 540, 19 Atl. 283; Hoffeditz y. Mining
Co., 129 Pa. St. 264, 18 AtL 125. And see Kemp v. Railroad Co., 156 Pa. St
430, 26 AtL 1074. But not to be negligent in construction or maintenance of
right of way. McMinn v. Pittsburgh, V. & C. Ry. Co., 147 Pa, St 5, 23 Atl. 323.
«i« Sweetzer v. Boston & M. R. Co., 66 Me. 583; Owens ▼. Lewis, 46 Ind.
488; ChurchiU v. Baumann, 104 Cal. 369, 36 Pac. 93, and 38 Pac. 43; Searing
V. Saratoga, 39 Hun, 307.
*i7 Jordin V. Crump, 8 Mees. & W. 781, and cases cited; Uott v.Wllkes,
3 Barn. & Aid. 304; Stout v. Wren, 1 Hawks (N. C.) 420; Galbraith v. Flem-
ing, 60 Mich. 403, 27 N. W. 581; Champer v. State, 14 Ohio St 437; Duncan
v. Com., 6 Dana (Ky.) 295; Smith v. State, 12 Ohio St 466-470; State v. Beck,
1 Hill, 363; Harrison v. Marshall, 6 Port (Ala.) 65; Illinois Cent. Ry. Co. v.
Allen, 39 111. 205; Walker y. Fitts, 24 Pick. 191; Com. v. Parker, 9 Mete
(Mass.) 263.
Cb 2J VARIATIONS BASED ON CONDUCl* OF PLAINTIFF. 201
elating the danger, voluntarily elects to encounter it. There may,
however, be knowledge of risk without appreciation of danger.***
When circumstances amount to such duress as to deprive an act
of its voluntary character, where there is intentional exposure to
known risk, is a matter of much dispute. Where the injured party
can take his option to do or not to do a given thing, and is not sub-
ject to physical constraint, he has been held to do it voluntarily.**'
But one who, in an exigency, determines to take a risk is not held
«o strictly. Thus, a woman employed in a mill, in going down steps
which were covered with ice, — ^there being for her no other exit from
the mill, — carrying a dinner pail in one hand, and with the other
holding to the railing, fell and was injured. It was held that the
jury should decide whether she appreciated the risk, and whether
she was acting under such an exigency as would justify her in go-
ing down the steps, and deprive her act of that voluntary character
referred to in the maxim, **Volenti non fit injuria.'^ **• By way of
contrast, a voluntary spectator, who is present merely for the pur-
pose of witnessing a display of fireworks in a public highway of a
city, must be held to consent to it; and he suffers no legal wrong,
if accidentally injured, without negligence on the part of any one,***
although the display is unauthorized.
Consent to a wrong, induced by fraud, duress, or conspiracy, is
«is Thomas y. Quartermaine, 18 Q. B. Div. 685, commented on in Yarmouth
▼. France, 19 Q. B. Div. 647-657. "So that a duU man may recover damages
where a man of inteUlgence may not" This subject is discussed at length
under "Assumption of Risk," in the consideration of "Negligence," post, p. 1018.
Employers' act does not change common-law rule. Mobile & B. Ry. Ck>. y. Hoi-
bom, 84 Ala. 133, 4 South. 146, and Highland Aye. &B. R. Go. y. Walters, 91
Ala. 435, 8 South. 357, oyerruled by Birmingham Railway & Electric Go. y.
AUen, 99 Ala. 359, 13 South. 8.
«i» Lord Bramwell, in Membery y. Great Western Ry. Go., 14 App. Gas. 179.
Dissenting opinion in Eckert y. Long Island Ry. Go., 43 N. Y. 502-506.
420 Fitzgerald y. Gonnecticut Riyer Paper Go.. 155 Mass. 155. 29 N. B. 464.
Amusing comment in 5 Green Bag, 528; Anderson y. Glark. 155 Mass. 368, 29
N. E. 589; Mahoney y. Dore. 155 Mass. 513, 30 N. E. 366; 0*Maley y. South
Boston Gas Light Go., 158 Mass. 135, 32 N. E. 1119.
4S1 Scanlon y. Wedger, 156 Mass. 462. 31 N. E. 642. See dissenting opinion.
On the other hand, mere presence at a display of fireworks ha^ been held not
to be contributory negligence. Dowell y. Guthrie, 99 Mo. G53, 12 S. W. 900.
202 VARIATIONS IN THE NORMAL HI6HT TO SUB. [Ch. 2
no answer to an action upon the wrong by the party so ccmsenting
against the party so procuring the assent^'*
Consent Limited by Parties,
Where one person has consented to conduct on the part of an-
other, which but for such consent would be a tort, the conduct must
fail within the limit of such consent, or liability will attach. Here
is applied the general principle that, the authority ceasing, the ex-
emption from liability ceases.**' Thus, participants in a violent
game have assumed the risk ordinarily incident to their sport, but
such ordinary risk does not include wrongful and intentional inflic-
tions of injury.*'* Being a mere onlooker, moreover, does not make
one a participant. Accordingly, the unwilling victim of a college
rush line can recover for assault*'* Consent to the performance
of a surgical operation for the cure or extirpation of disease will,,
in the law, justify the use of force; but such consent does not pie-
vent suit by the patient for intentional violence or negligence on the
part of the physician to his patient.*'*
Consent is sufficient, however reluctantly it may be given.**^ Li-
cense to do what would otherwise be a nuisance or a trespass is,
in the same way, coextensive with the limits of the authority con*
f erred.*"
«» Johnson v. Gird wood, 7 Misc. Rep. 651, 28 N. Y. Supp. 151; post, ''Effect
of Fraud"; ''Discharge and Release."
«>• Consent to operate a threshing machine with a damper down doeft not
prevent recovery for damage caused by operating with the damper open In
a high wind. Garrison v. GraybiU, 52 Mo. App. 580.
434 poL T<MrtR, c. 4, subd. 10.
«20 Markley v. Whitman, 95 Mich. 236, 54 N. W. 763.
42« Notice to the husband Is not necessary before operating on the wife.
M'Glallen v. Adams^ 19 Pick. 833. Consent that a physician should conduct
an autopsy at a tomb is not a license to remove any part of the remains, —
for example, the skulL Palmer v. Broder, 78 Wis. 483, 47 N. W. 744. And
see CaldweU v. Farrell, 28 111. 438.
«a7 A servant reluctant (to the point of tears) consented to an examination
by a physician, at the request of her mistress, to see if she was with child.
Slie could not recover therefor. Latter v. Braddell, 50 Law J. Q. B. 448,
afilrmed Id. 166.
4«« Poet, pp. 670-686, "Trespass"; "License." Oapel v. Lyons (City Ct N.
Y.) 20 N. Y. Supp. 49; Brammell v. Eastern Ky. Ry. Co. (Ky.) 22 S. W. 646.
And see McMlnn v. Pittsburgh, V. & C. Ry. Co., supra, note 415.
Ch. 2] VAKIAT10N8 BASED ON CONDUCT OF PLAINTIFF. 203
Consent Lmited hy Law.
The exemption based on consent is not only thus limited by the
parties themselves, but, notwithstanding the actual consent to a
wrong, the law may still allow recovery by the injured one. There
are limits to lawful consent The law does not recognize consent
to conduct unlawful, or forbidden by positive law, or for doing that
to which a penalty is attached and announced. Principals in a prize
fight may sue each other for damages done in the battle.^'* Ckmsent
does not justify assault**^ Even under such circumstances, however,
consent may limit recovery of damages to compensation.*'* On the
same principle, one who has consented that another may carry a re-
volver can recover only compeimatory damages on being injured by
its discharge.**' The distinction with respect to consent to the ex-
ercise of physical force would seem to be that the agreement will not
justify causing, or endeavoring to cause, appreciable bodily harm for
the mere pleasure of the parties.
But where ''the wrong complained of is not forbidden by law,
though it may be by morals, such as the seduction or debauch of a
man's wife or daughter, slander, libel, or trespass on his real estate
or to his personal property, agreement, consent or license is a good
defense." *•• Seduction, however, is as much forbidden by positive law
as is assault Perhaps the true distinction is that a man cannot con-
*«• Boulter v. Clark, Bull, N. P. 16 (per Paiicer, O. B.); White v. Barnes,
112 N. C. 323, 16 S. B. 022; Dole v. Ersklne, 85 N. H. 503; Orotton v. OUd-
den, 84 Me. 5S0. 24 Atl. 1008; Shay v. Thomson, 59 Wis. 540, 18 N. W. 473;
Adams v. Waggoner, 33 Ind. 531; Logan v. Austin, 1 Stew. (Ala) 476; Bell v.
liausley, 3 Jones (N. G.) 131; Evans v. Waite, 83 Wis. 28G, 53^. W. 445; Jones
T. Gale, 22 Mo. App. 637; Smith v. Simon, 60 Mich. 481, 37 N. W. &ia But a
voluntary fighter cannot recover unless defendant beat him unreasonably
or excessively. Galbraith v. Fleming* 60 Mich. 403, 27 N. W. 581. 'The su-
preme court of Louisiana has thrown its protection about the great New
Orleans industry of prize fighting." 7 Green Bag, 08, commenting on State v.
Olympic Club, 46 La. Ann. 035, 15 South. 100.
•»«o WlUey V. Carpenter, 64 Vt 212, 23 Atl. 630; Chrlstopherson v. Bare, 11
Q. B. 473.
4S1 Adams v. Waggoner. 33 Ind.' 531.
*8a Evans v. Walte. S3 Wis. 286. 53 N. W. 445: Shay v. Thomson, 60 Wis.
540, 18 N. W. 473; Knott v. Wagner, 16 Lea (Tonn.) 481.
433 Adams V. Waggoner, 33 Ind. 531; Com. v.Colburg, 110 Mass. 350; McGuo
V. KleiD, 60 Tex, 168; Shay v. Thompson, 50 Wis. 540, 18 N. W. 473.
204 VARIATIONS IN THB NORMAL RIGHT TO SUE. [Ch. 2
sent to do an jthing which is a breach of public duty. An assault is
a breach of the peace. Seduction, however, while it may be pun-
ished as a crime, involves personal, rather than public, duty. There-
fore, neither the husband nor the father, nor the woman herself, who
expressly or impliedly consents to that wrong, may recover for se-
duction/*^ It is otherwise, however, where the father and husband
are innocent* ••
«»* Barholt v. Wright, 45 Ohio St 177, 12 N. B. 185; 4 Am. St Rep. 636,
note, quoting Ckwley, Torts, § 163. And see Wyndham ▼. Wycombe, 4 Esp.
16; Reddle v. Scoolt Peake, 240; State t. Cooper, 22 N. J. Law, 52; Rea t.
Tucker, 51 lU. 110; Paul y. Frazier, 3 Mass. 71; Thompson t. Young, 61 Ind.
689; CUne v. Templeton, 78 Ky. 650; HaftiUton y. Lomaz, 26 Barb. 615; Law-
rence y. Spence, 80 N. Y. 668, 2 N. E. 145.
««• FeJt y. Amidon, 43 Wis. 467; Lunt y. PhllbHck, 68 N. H. 68; Pence v.
I>ozier« 7 Bush (Ky.) 133; Hudkins v. Hasklns, 22 W. Va. 616; Bennett v.
AUcott 2 Term R. 106.
Cb. 2, Note] EXECUTORS and administbatobs. 205
NOTE.
Other Fersons Whose Liability in Tort la Affected by Special
Circamatanoea.
PeRBONB UnDBB DtTBBM.
Mr. Cooler, tme to his conception of liabUlty in tort, as based on wrong to
plaintiiT, without reference to defendant's mental process, declares that, "in
general, one cannot excuse a tort by showing that he committed it under
duress." For this he adduces no authority. Authority for the position, how-
ever, is to be found. But, as would be naturally anticipated, it concerns tres-
pass, in which the propriety of disregarding the mental element in tort is
generally recognized. Thus, in Gilbert y. Stone (Trinity Tenh, 17 Car. Rot.
1703) Aleyn, 35 (Hob. 134c), defendant pleaded that **12 homines ignoti modo
guerrino armati tantum muabantur ei quod de vitte fuse armisslone dubitat,''
etc., **that, because of fear and threats, defendant was compelled to and
did enter the said house.*' "And upon demurrer, without argument, it was
adjudged no plea; for no one can justify a trespass upon anotber for fear.*'
The cases cited by Mr. Cooley, indeed, are to the effect that torts committed
by military authority, or ratified by the goveniment, are not actionable, yiz.
McKeel v. Bass, 5 Cold. 151; Waller v. Parker, Id. 476. Cf. MitcheU v.
Harmony, 15 How. 115. And see Buron y. Denman, 2 Exch. 1(17.
As to duress in connection with conversion, see Powell y. Hoyland, 6 Elxcb.
67-71; Summersett y. Jaryis, 3 Brod. & B. 2.
With respect to negligence, the law seems to haye recognized that persons
who act under stress of circumstances— as, for example, peril to human life-
are not guilty of a wrong wbich can be attributed to such persons. Post, p.
969, "Negligence.*
»*
Executors and Admin istbators.
May be personally liable, for example, in negligence. An administrator
who makes no active effort to collect money due to the estate is liable there-
for. In re Child's Estate (Surr.) 26 N. Y. Supp. 721. And see In re Johnston*s
Estate, 74 Hun, 618, 26 N. Y. Supp. 966; In re Hart, Id.; In re Langan, Id.;
In re Strong's Estate, 160 Pa. St, 13, 28 Atl. 480. Cf. In re Barker*s Estate,
159 Pa. St. 518, 28 Atl. 305.
Jn Conrernon.
Where the adminlstratcHr of a donor wrongfully conyerts property of tlie
donee to the use of the estate of the donor, upon the belief that the property
was not legally giyen by the donor to the donee, he is personally liable to the
donee for such conyersion. Goulding y. Horbury, 85 Me. 227, 27 AtL 127;
Chapman y. Brite, 4 Tex. Ciy. App. 506, 23 S. W. 514.
206 VA,KIATIOM8 IK THB NORMAL RIGHT TO SUE. [Ch. 2, Note
For Fraud.
Misrepresentation and concealmoit by an executor in making a sale of land
are bis personal acts, for which he is personally liable. Warren ▼. Banning,
21 N. T. Supp. 883, affirmed 140 N. Y. 227, 85 N. B. 428. And, generally, as to
personal liability, see Meyeringh v. Wendt, 86 Iowa, 465, 53 N. W. 414; Pow-
ell y. Hnrt, 108 Mo. 507, 17 S. W. 985; Tallon t. Tallon, 156 Mass. 313, 31 N.
K. 287.
Receivers.
Personal LiabiHiy,
As an officer of the court, a receiver has no personal responsibility for conduct
occurring in. proper performance of his duty. Thus, where a receiver is direct-
ed by the court to take possession of property in the possession of a third per-
son, and he demands possession thereof as a receiver, and possession is given
to him as receiver, he is not personally liable for conversion. Tapscott y.
liyon, 37 Pac. 225; Rushworth v. Smith (Colo. App.) 34 Pac. 482; Heffron t.
Uice, 149 111. 216, 36 N. E. 562; Wagner y. Swift's Iron & Steel Works (Ky.)
26 S. W. 720; Turner y. Gross, 83 Tex. 218, 18 S. W. 578, distinguished in
Peoples y. Yoakum (Tex. Civ. App.) 25 S. W. 1001.
But he is responsible for personal misconduct in his office. Thus, a receiver
of an insolvent is liable to the creditors for the value of property sold, by
his collusion with the insolvent, to one who assigned it to the insolvent's
wife for his benefit Mo<hi v. Wineman (MinnJ 59 N. W. 494. And see
Connolly y. Davidson, 15 Minn. 510 (GIL 428).
Official Liability — Damage after Appointment.
A receiver is liable in his official capacity on the same principle which
governs the liability of any employer. "Where one is injured by a defect in a
track of a railroad operated by a receiver, whose duty it was to keep the
track in repair, the receiver is liable for the injury, whether the injured per-
son was in his employ or not." Dillingham v. Crank (Tex. Civ. App.) 27 S.
W. 93; Texas & P. Ry. Co. v. Gay, 86 Tex. 571, 26 S. W. 599; Eddy v.
I^fayette, 1 C. C. A. 441, 49 Fed. 807; Hornby v. Eddy, 5 C. C. A. 560, 56
Fed. 461; Gowen v. Harley, 6 C. C. A. 190, 56 Fed. 973.
And liability attached to the person for whom he acts, although his ap-
pointment is obtained by collusion. Where the receiver of a railroad is ap-
pointed through collusion, the company is liable for injuries caused by his
negligence, whether or not the couit api>oiDting him had jurisdiction. Texas
& P. Ry. Co. y. Gay, 86 Tex. 571, 26 S. W. 599.
Where a person in the employ of a receiver is injured in the line of duty
without negligence on the part of either, the court may order his wages paid
for the time he was disabled, in the view that the officers of the court should
act towards their employ(te as persons of ordinary humanity would act under
similar circumstances; but such compensation should be confined to faithful
and deserving employes. (Missouri Pac lly. Cow y. Texas & P. By. Co.,
Ch. 2, Note] RECEIVERS. 207
r.:$ Ved. 701; Id., 41 Fed. 319,— limited.) Tliomas T. East Tennessee, V. &
O. By. C3o., eO Fed. 7. , »
Rer. St Tex. art 2809, glYlng a right of action for the death of any person
caused by the negligence of **the proprietor, owner, charterer or hirer" of any
railroad, or their servants, creates no right of action against a railroad re^
ceirer. (Turner y. Cross, 83 Tex. 218, 18 8. W. 578^ foUowed.) Burke v.
Dillingham, 9 G. G. A. 255, 00 Fed. 729.
Same— Damage before Appcintment
Ordinarily, an action for personal hijuries sustained before the appointment
of a receiver cannot be maintained against him, but must be brought against the
corporation. Finance Go. of Pennsylvania t. Gharlestown, O. & G. B. Go., 46
Fed. 506; Ex parte Bradford, Id.
As to the assets out of which a cause of action which accrued before the
appointment of a receiver can be satisfied, there is interesting dispute.
Before affairo of a cori>oration will be put in the hands of a receiver by
a court of equity, in the course of foreclosure of railroad bonds or mortgages,
there must be good, sufficient, and especial reason. Farmera' Loan & Trust
COr y. Winona & S. W. By. Co., 59 Fed. 057; Sage v. llailway Go., 125 U. S.
361-376, 8 Sup. Gt 887.
And just and equitable conditions of receivership will be imposed. Fosdick
V. SchaU, 99 U. S. 235, per Waite, G. J.; Union Trust Go. v. Souther, 107 U.
S. 591, 2 Sup. Gt 295.
One condition commonly enforced is that certain debts be ''preferred,'*
and paid out of funds in the liands of the receiver, or be made a charge
on the corpus of the property. As to practice, see Central Trust Go. v. St.
Louis, A. & T. By. Go., 41 Fed. 551 ; Fosdick v. SchaU, supra; Miltenbergei
V. Bailway Go., 106 U. S. 286^11, 1 Sup. Ct 140; Union Trust Go. y. Illinois
M. By. Go., 117 U. S. 434, 457, 463, 6 Sup. Gt 809.
As to what are preferred claims, there is dispute. The rule as laid down
by Galdwell, J., in Dow v. Memphis & L. B. Go., 20 Fed. 260, is that, where
• the default in the payment of a mortgage debt occurred more than a yeai
before the filing of the bill, the receiver should be required to pay all the
debts and liabilities of the railroad company incurred in operating, repairing,
and improving the road for the period of six months next before the filing ot
the bill, and that the debts which the receiver is required to pay, and all
debts and liabilities incurred by him in operating the road, should be made a
first lien on the mortgaged property, which should not be released until such
liabilities are discharged.
The order in this case was held by Mr. Justice Brewer (Gentral Trust Go.
V. Texas & St L. By. Go., 22 Fed. 135) not to be "in excess of the prc^;»er
powers and discretion of a court appointing a receiver."
In Farmera' Loan & Trust Go. y. Kansas Gity, W. & N. W. B. Go., 53 Fed.
182, in an opinion of marked clearness and force. Judge Galdwell further held
208 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2, Note
that, In railroad foreclosure proceedings, preferential debts, which may* be
given priority on the appointment of a receiver, are, in general, tlfose which
have aided to conserve the property, and have been contracted within a rea
Bonable time, and there is no fixed rule barring claims contracted more than
six months before the appointment, nor is the authority to give priority
limited to cases in which there has been a diversion of income, and that the
debts which the receiver is required to pay, and all debts and liabilities
incurred by him in operating the road, should be made a first lien on the
mortgage property, which should not be released until such liabilities are
discharged.
However, in Farmers* Loan & Trust Co. v. Green Bay, W. & St P. R. Co.,
45 Fed. 664r-6G6, Judge Jenkins said: '*The principle is here sought to be ex-
tended to embrace a claim for death occurring in the operation of the road
within the limited period. In an able and ingenious argument, the counsel
for the petitioner insisted that, although the liability for the death h^e rests
upon statute law, and is to a stranger to the contract of hiring, and arises
from failure of duty enjoined by the law of master and servant, yet that
the liability is imposed by the law upon, and constitutes a term of, the con
tract of hiring, and so must be regarded as a liability incurred in the opera-
tion of the road, having priority of payment over a precedent mortgage. This
proposition finds support in the case of Dow v. Memphis & L. R. Co., 20 Fed.
260. There, Judge Caldwell, in appointing a receiver of a railroad, provided
by his order for the payment of obligations incurred for injuries to persons
within six preceding months. He states that failure by the trustee to take
possession works and implies an assent that the earnings of the road should
be applied to compensate those damaged in its operation, and asserts that the
rulings of the supreme court furnish ample authority for such order. A care-
ful reading of all the decisions of the supreme tribunal upon the subject con-
vinces me that Judge Caldwell has either misconceived the underlying prin-
ciple of these decisions, or seeks to extend.it unduly.*' Accordingly, it was held
that a claim against a railroad company for causing the death of plaintifTs
intestate is a demand arising from a failure of duty, and could not, by its cre-
ation, benefit, preserve, or increase the corpus of the estate of the company,
and is not entitled to priority upon the foreclosure of a mortgage thereof.
There is good authority to sustain this position. Kneeland v. American Loan
& Trust Co., 136 U. S. 89, 10 Sup. Ct. 950; Id., 138 U. S. 509, 11 Sup. Ct. 426;
DexterviUe Manurg & Boom Co. v. Case, 4 Fed. 873; Hlles v. Case, 14 Fed.
141; Central Trust Co. v. Wabash, St L. & P. Ry. Co., 28 Fed. 871; Daven
port V. Receiver of A. & C. R. Co., 2 Wood, 519, Fed. Cas. No. 3,588; Easton
V. Railroad Co., 38 Fed. 12; Central Trust Co. v. Bast Tennessee, Y. & G. R.
Co., 30 Fed. 895.
Gb. 3] CONCERT IN ACTION. 209
LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS.
66. In GeneraL
67. Concert In Action— Joint Tort Feasors.
68. Liability of Joint Tort Feasors.
69. Contribution between Joint Tort Feasors.
70-71. Relationship— Husband and Wife.
72. Landlord and Tenant
73-74. Independent Contractor.
7S. Master and Servant
76-01. Master's Liability to Third Persons.
92. Master's Liability to Servant
93. Servant's Liability to Servant
94-97. Servant's Liability to Master.
98. Servant's Liability to Third Persons.
99. Partners.
IN GENERAL.
66. liability for torts committed by or with othen Is de-
pendent on either —
(a) Ooncert in action, in which case the parties are Joint
tort feasors; or
(b) Relationship, as
(1) Husband and wife;
(2) Iiandlord and tenant;
(3) Independent contractor;
(4) Master and servant;
(6) Partners.
CONCEBT IN ACTION— JOINT TOBT FEA80BS.
67. Where two or more persons participate in concerted
action to commit a common tort, they are called
**joint tort feasors."
There are several classes of cases wherein joint responsibility
arisen In one class, the responsibility arises from relationship; as
LAW OF TORTS— 14
210 LIABILITY FOR TORTS OOHMITTED BY OR WITH OTHERS. [Gh. 3
where a husband and wife are held jointly liable for the wife's torta,
or as where the master is held liable for the acts of his servant, the
principal for his agent, the employer for his employ^, and the part-
ner for his copartner. In another class, two or more persons may be
held liable becanse of personal participation, by consent to, or actual
commission of, the wrong complained of; as where several persons
execate a conspiracy to assault, steal from, or defrand another.
Such persons are commonly called ^joint tort feasors." l^ese two
classes often overlap. Hnsband and wife,^ master and servant,*
and partners may actually join in wrongdoing. Then the liability
is because of personal commission or consent (or command), not be-
cause of relationship.
By way of distinction, joint tort feasors are held responsible, not
because of any relationship existing between them, but because of
concerted action towards a common end.*
Thus, where one of a firm, in the name of the others, wrongfully
ejected a tenant, they being only sureties for the payment of his
rent, but the act being clearly not in the ordinary course of business,
the one partner had no power to bind the firm or involve the others
in the mischief. The question, therefore^ had to be determined, did
all or any of the partners fall within the above definition by con-
senting to the act? for the firm was not liable, but only those mem-
bers who had consented to the act.^
All persons who aid, counsel, direct, or join in committing a tort
are joint tort feasors.' The liability of a joint tort feasor may attach
by direct participation. Thus, where one person carries away a pack-
age of goods, while another is putting up a different package, which
1 Post, II. 'SS2. "Husband and Wife."
s As to master and 8er\'ant, see Wright y. Wilcox, 19 Wend. 343; Blake v.
Ferris, 5 N. Y. 48; post, p. 246, "Master and Servant"
> As to principal and agent, see Hilmes v. Stroebel, 59 Wis. 74, 17 N. W.
539; Hubbard y. Hunt, 41 Yt. 376; Brannock y. Boulden, 4 Ired. 61; Suth-
erland y. IngaUs, 63 Mich. 620, 30 N. W. 342.
« Petrie y. Lamont, Car. & M. 93. And see Moreton y. Hardem, 4 Bam. A
C. 223; Grund y. Van Vleck, 69 III. 479.
c Tindel, G. J., in Petrie y. Lamont, Car. & M. 93-96. Common carriers as
joint tort feasors: Chicago, R. I. & P. Ry. Go. y. Sutton, 11 O. G. A. 251,
63 Fed. 394; Atlantic & P. R. Co. y. liaird, 7 G. G. A. 489, 58 Fed. 760. Traf-
fic association: Wisconsin Cent. R. Co. v. Ross, 142 111. 9, 31 N. B. 412. Sev-
iJh. 3 J OONCICKT IN ACTION. 211
both take off together, they are jointly liable/ Op the liability may
arise out of counsel, direction, or command by one to another to
commit a tort The liability here, however, does not arise out of
mere relationship. But a i)erson who merely gives leave for a tort
to be committed is said not to be a joint tort feasor. *^ the tres-
passer was authorized and ordered by me to go there, we are joint
tort feasors; but if I only permitted him, as he had my leave and
license, though I had no right, yet we are not joint tort feasors.^ ^
But the person ordered to do the wrong may or may not be liable.'
Mere presence at the commission of a wrong, as an assault, does
not attach liability as principal;* but encouraging, inciting, and
even presence without disapproval, in connection with other circum-
stances, may have that effect.^* It is in this sense that those con-
spirators who do not actually commit a wrong are tort feasors.^^
•eral railway ccHnimnies: Galveston, H. & S. A. Ry. Go. v. Groskell, 6 Tex.
Civ. App. 100, 25 S. W. 486; Omaha & E. V. Ry. Ca v. .Morgan, 40 Neb. 604,
59 N. W. 81. Telepiione company and railway companies: United £1. Ry.
Ck>. V. Shelton, ^9 Tenn. 423, 14 S. W. 863; Southwestern Tel. & Tel. Go. v.
Crank (Tex. Giv. App.) 27 a W. 88. Gf. Dillingham v. Crank, 87 Tex. 104,
27 S. W. 93. As to members of association, see Johnson v. MiUer, 63 Iowa,
529, 17 N. W. 34. As to Judge and officer of court, attorney of record, and
•execution creditor, see Baker v. Secor, 51 Hun, 643, 4 N. Y. Supp. 303; Zeller
V. Martin, 84 Wis. 4, 54 N. W. 330; Thompson v. Whipple^ 54 Ark. 203, 15
^. W. 004; .Tones v. Lamon. 92 Ga. 529, 18 S. E. 423. Sheriff and attaching
creilltor: Harris v. Tenney, 85 Tex. 254, 20 S. W. 82; Blakely v. Smith (Ky.)
^0 S. W. 584. Sheriff and deputy: Frankhouser v. Cannon, 50 Kan. 621, 32
Pac. 379. A municipal corporation and an improvement company: Gity of
Kansas Gity v. Slangstrom, 53 Kan. 431, 36 Pac. 706. Joint trespassers:
Whitney v. Backus, 149 Pa. St. 29, 24 Atl. 51; Wilbur v. Turner, 39 111. App.
526; Kavanaugh v. Taylor, 2 Ind. App. 502, 28 N. E. 553; Southwestern Tel.
& Tel. Go. V. Crank (Tex. Giv. App.) 27 S. W. 38; Printup v. Patton, 91 Ga.
422, 18 S. B. 311. Gity and company which has contracted, but fails, to keep
A crossing clear: Union St. Ky. Go. v. Stone, 54 Kan. 83, 37 Pac. 1012. Cred-
itors who direct an officer to levy property which the debtor has assigned are
liable therefor. Jointly with tlie officer, at the suit of the assignee. Blakely
T. Smith (Ky.) 26 S. W. 5H4.
e Harris v. Rosenberg, 43 Gonn. 227; Golegrove v. Railroad Go., 6 Duer, :i82.
7 Robinson v. Yaughton, 8 Gar. & P. 252.
B Poet, p. 286, "Master and Seivant."
♦ Hilmes V. Stroebel, 59 Wis. 74, 17 N. W. 539.
i« Willi V. Lucas, no Mo. 219, 19 S. W. 726.
ii Post, p. 637, "Conspirators"; Gheney v. Powell, 88 Ga. 629, 15 S. E. im.
212 UAIULITY FOE TORTS OOmflTrED BV OE WITH (iTUKBS. [Ch. o
The liability of joint tort feasors may arise oot of ratification of an
action done for a party's benefit although without his anthority.^^
Nor is mere similarity of design or conduct on the part of inde-
pendent actors sufficient to constitute such actors joint tort fea-
sors.^' There is a marked distinction between a tort and liability
arising from a tort The liability, as between the plaintiff and the
defendant, may always be treated as sereral, but the wrong itself
may be jointly done or severally done by the defendants. If it be
jointly done, — that is, in concert, — the defendants are joint tort
feasors; if it be severally done, — ^that is, independently, though for
a similar purpose and at the same time, — ^without any concert of
action, they are several tort feasora^* Thus, where d^ris is de-
posited on lands of a person, by means of different ditches construct-
ed and operated by several persons acting separately and apart from
each other, while a joint injunction will lie to prevent them from
continuing the wrong, a joint judgment in such action is error.^*
IS See ante, H 14-16.
it Clark A L. Torts, 43, comparin;. Home t. Oldacre, 1 Starkie, 351, with
Paget V. Blrkbeck, 3 Fost & F. GS3.
i4 WUliams V. Sheldon, 10 Wend. 654.
i» Mill^ y. Highland Ditch Co., 87 Cal. 430, 25 Pac 550; Harley v. MerriU
Brick Co., 83 Iowa, 73, 48 N. W. 1000 (nuisance, coUecting cases, page 79, 83
Iowa, and page 1002, 48 N. W.); Gallagher y. Kemmerer, 14i Pa. St 509, 22
AtL 970; Little SchuylkiU Nav. R. &, C. Co. v. Uichard*s AdmY, 57 Pa. St
142; Chipman v. Palmer, 77 N. T. 51; Slater ▼. Mersereau, 64 N. Y. 138.
Owner of building, and contractor constructing tank oa roof, are jointly liable
for negligence as to supports, resulting in damage to plaintiff. Consolidated
Ice Mach. Co. v. Keifer, 134 111. 481, 25 N. £. 799. And see Carman v.
SteubenviUe & I. Ry. Co., 4 Ohio St 399. I^andlord and tenant: Harris t.
James, 45 Law J. Q. B. 545; Pig. Torts, 87, 8a Joint owner of stallion iiible
for negligence of one resulting in injury to mare: Newman v. Stuckey, 57
Hun, 589, 10 N. Y. Supp. 7C0. But, to constitute defendants joint tort feasors,
there must be community of wrong,— concert of action. Bennett v. Fifl^d, 13
R. I. 139. Cf. Chipman v. Palmer, 77 N. Y. 51, with Simmons v. Everson, 124
N. Y. 319, 26 N. K. 911. When a trespass is committed by the animals of
several persons, those of one person cannot be sc^d to pay damage done by
another's, when there is no common fault in keeping the animals, and no
concert of action in the trespass. Dooley v. Seventeen Thousand Five Hun-
dred Head of Sheep (CaL) 35 Pac. 1011. And see Printup y. Patten, 91 Ga.
422, 18 S. E. 311. But in Westfleld Gas & Milling Co. v. Abemathey, 8 Ind.
App. 73, 35 N. E. 899, it was held that where the excavation causing the
<Jh. 3] CONCERT IN ACTION. 213
For a similar reason, it is said that an action will not lie against two
persons jointly for verbal slander. The words of one are not the
MTords of another, and the injury resulted from words only.^* So,
'wliere a libel has been successively repeated by several persons, an
action will lie against each of those who circulated it They are
Beveral, not joint, tort feasors." None the less, ordinarily, both
parties guilty of concurrent negligence may be sued jointly, though
they had no common purpose and though there was no concert in
fiietion,**
SAME- LIABILITY OF JOINT TOBT FEA80BS.
68. Ea^h, any, or all joint tort feasors are responsible in
compensatory dania8:es for joint wrongs without
regard to degree of culpability or extent of partici-
pation. Exemplary damages, it is sometimes held,
must be assessed according to the conduct of the
most innocent.
The person injured by joint tort feasors may sue and recover against
all, any number, or only one of them.*' The liability is joint and sever-
damage was the separate tort of each defendant, and not the joint tort of all,
for a single Injury, as the result of all torts, plaintiff can recover against all
jointly; damages will not be apportioned. And see City of Kansas City v.
Slangstrom, 53 Kan. 431, 36 Pac. 706; Booth y. Ratt6, 21 Can. Sup. Ct 637.
i« Patten v. Gumey, 17 Mass. 182-186.
IT Martin y. Kennedy, 2 Bos. & P. 60; Nicholl y. Glennle, 1 Maule & S.
588-592; post, p. 483. In order that defendants may be held liable, as joint
tort feasors, In assault and battery, they must co-operate and act In concert
in inflicting the Injury. Thomas y. Werremeyor, 34 Mo. App. 665.
18 Flaherty y. Minneapolis & St. L. Ry. Co., 39 Minn. 328, 40 N. W. 160.
As in a railroad collision: Colgroye y. Railroad Co., 20 N. Y. 492. And see
Blater v. Mersereau, 64 N. Y. 138.
i» Merryweather v. Nixan, 8 Term R. 186; Mitchell v. Tarbutt, 5 Term II.
649; Brown y. Allen, 4 KBp. 158; Elliott v. Allen, 1 C. B. 18; Chaffee y. D.
S., 18 Wall. 516; Albright v. McTlghe, 49 Fed. 817; McFadden v. Schill, 84
Tex. 77, 19 S. W. 368; Wisconsin Cent. R. Co. y. Ross, 142 111. 9, 31 N. E.
412; Slater v. Mersereau, (U N. Y. 138; City of Kansas City v. Slangstrom,
53 Kan. 431, 36 Pac. 709; Bryant y. Carpet Co., 131 Mass. 491; Hllman v.
Newington, 57 Cal. 56; North Pennsylvania R. Co. y. Mahoney, 57 Pa. St.
187. As between joint tort feasors in admiralty, see The City of Norwalk« 55
1
214 LIABILITY FOU TORTS COMMITTED BY OR WITH OTHERS. [Cb. S
al.** Indeed, he may bring different forms of action against different
participants — ^trespass against one, trover against another, and so on.' ^
The law does not recognize degrees of culpability between wrongdo-
ers, and will not apportion compensatory damages between them. They
are alike guilty and alike responsible. Thus, where several persons
were charged with assault and battery, and the whole damage was as-
sessed at (700, of which one defendant was charged with f 550 and
another with f 150, the plaintiff entered a nolle pros, as to the latter
defendant and took his verdict against the former. This was sus-
tained, inasmuch as the defendant was liable to the extent of f 700,
and he could not be heard to complain because he paid only (550.''
Of the joint tort feasors, however, some may be liable for punitive
damages, and some for compensatory damages; as, where the one
was arrested by a police ofQcer and another person, one acting in
good faith, and the other maliciously, the true criterion of damages
was the whole injury which plaintiff sustained from the joint tres-
pass. He can recover punitive damages against the party who
ought to be punished, but if he sue both for punitive damages he
Fed. 98; The Virginia Bhrman, 97 U. S. 309-317. Further, as to joint tort
feasors, see Gooley, Torts (2d Ed.) 154.
ao Rich V. Pilkington, Garth. 171; Mitchell v. Tarbutt, 5 Term R. 649, cited
in McAvoy v. Wright, 137 Mass. 207. Cf . Stone v. Dickinson, 6 AUen, 29 (as
in nuisance); Irvine v. Wood, 51 N. Y. 224; Slater v. Mersereau, 64 N. Y.
138; Klauder v. McGrath, 35 Pa. St 128; 1 Shear. & R. Neg. (4th Ed.) S 122;
Dubose V. Marx, 52 Ala. 606; Power v. Baker, 27 Fed. 396; Consolidated Ice
Mach. Go. V. Kelfer, 134 lU. 481, 25 N. B. 799.
21 Lovejoy v. Murrey, 3 Wall. 1; Creed v. Hartinan, 29 N. Y. 591; Peoria v.
Simpson, 110 lU. 291; Wright v. Gompton, 53 Ind. 337; State v. Babcock, 42
Wis. 138w
aa Warren v. Westrup, 44 Minn. 237, 46 N. W. 347; Chattahoochee Brick Go.
V. Braswell, 92 Ga. 631, 18 S. E. 1015; Keegan v. Hayden, 14 R. I. 175; Post
V. Stock weU, 34 Hun, 373; Huddleston v. West Bellevue, 111 Pa. St 110, 2 Atl.
200; Price v. Harris, 10 Blng. 331, 25 E. G. L. 159. As to granting a new
trial, Albright v. McTighe, 49 Fed. 817 (analyzing cases). Motion to modify
remittitur of Judgment, Chils v. Gronlund, 41 Fed. 505. Lord Mansfield held,
in Hill V. Goodchild (1771) 5 Burrows, 2790, that, when a verdict found
defendant guilty of a trespass jointly charged, the Jury could not afterwards
assess several damages. And in Massachusetts, in Halsey y. Woodruff (1850)
9 Pick. 655, this was applied on the theory that the sole inquiry opened to a
Juiy '*is what damages the plaintiff has sustained, not who ought to pay for
them."
CH. 3] CONCEBT IN ACTIOM. 216
can recoYer against them only according to the acts of the most in-
nocent defendant.'* But while the sufferer may proceed separately
against all tort feasors who injured him, or against them all jointly,
lie must elect to pursue one course or the other; and, having made his
election, he is bound by it. If he sues all jointly and has judgment,
lie cannot afterwards sue them separately; or if he sues separately
and has judgment, he cannot afterwards sue them in a joint action.
The prior judgment against one is an election as to that one to pur-
sue his several remedy; but it is ordinarily, in America, no bar to
the suit for the same wrong against any one or more of the other
-wrongdoers.**
SAME— CONTBIBUTION BETWEEN JOINT TOBT FEASOBS.
08. There can be no contribution between joint tort feasors
except when they neither knew nor are presumed
to have known that a legal wrong was being
done*'
Ib cases where the wrongdoers actually intend to do an unlawful
aft, or where they are presumed to know that they were doing an
unlawful act, there is neither indenmity nor contribution between
them. Thus, if the owner of premises leave a hatchway on the
street open and unguarded, and is compelled to pay damages to a
traveler injured thereby, he can not recover indenmity of another
person who may have interfered with the hatchway so as to make
it more dangerous.** Where, however, joint tort feasors tn com-
mitting the tort do what is apparently lawful, in the belief that they
are pursuing a lawful course, and the wrong inflicted upon another
arises out of this conduct by construction or inference of the law, and
is not the foreseen result of a wrongful act, the law will allow contri-
bution between them. Thus, if two creditors together attack a sale
» McCarthy v. De Armlt, 00 Pa. St 63; Clark v. Newsam, 1 Bzch. 131. But
see Wanren y. Westrup, supra.
S4 Ttie Atlas, 03 U. S. 302, collecting cases at page 31$; post, pp. 341-31%,
--^Dlscfaarge of Tort by Judgment*'
. >^ Generally, see Keener, Quasi Cent 402-604; Adamson ▼. Jarvls, 4 Blng.
ee; CbUTChlll ▼. Holt, 131 MasH, 67.
a« ChurchUl v. Holt, 131 Mass. 67. Of. Id., 127 Mass. 165.
216 LIABILITY FOR TORTS OOMtflTTED BY OR WITH OTHERS. [Ck. 3
of goods by their debtor to a third person, honestly believing the
sale is fraudalent and void, one of them, after paying a jadgment
recovered against him by the debtor's vendee for wrongful seizure
and sale of the goods^ may enforce contribution from the other.*^
In many instances several parties may be liable in law to the i>ers(m
injured, while as between themselves some of them are not wrong-
doers at all; and the equity of the guUtless to require the actual
wrongdoer to respond for all damages, and the equally innocent to
contribute his portion, is complete.'* Indeed, the rule as to no
contribution has so many exceptions that it can hardly with pro-
priety be called a general rule.^^
BELATION8HIP— HU8BAKD AND WIFE.
70. The common-law limitaUon as to the status of mar-
ried women led to two principal oonsequences, so
fkr as the law of torts is concerned:
(a) Inability of wife to sue or be sued in tort, and to
the sole responsibility of her husband for torts
committed by her before or after marriagre, in an
action in which she was joined with him as a party
S7 Vandlver v. Pollok, 97 Ala. 467, 12 South. 473 (Head, J., dissenting); Arm-
strong Co. y. Carrion Co., 66 Pa. St. 218, Burd. Lead. Cas. p. 1G6; Old Colony
R. Co. y. Slayens, 148 Mass. 363, 19 N. E. 372; Simpson y. Mercer, 144 Mass.
413-415, 11 N. E. 720; Bailey y. Bussing, 28 Conn. 455; Nichols v. Nowling,
82 Ind. 488; Ankeny y. Moffett, 37 Minn. 109, 33 N. W. 320; Flaherty y. Minne-
apolis & St. L. Ry. Co., 39 Minn. 328, 40 N. W. 160; Janyrin y. Curtis, 63 N. H.
312; Goldsborough y. Darst, 9 HI. App. 205; Nickerson y. Wheeler, 118 Mass,
295; Moore y. Appleton, 26 Ala. 633; Wooley y. Batte, 2 Car. & P. 417; Pera-
son y. Skelton, 1 Mees. & W. 504. It has, howeyer, been held that, a passen-
ger on a street car haying been Injured by a collision with a railroad car,
through the concurrent negligence of the two companies, neither can recoyer
against the other. Texas & Pac. Ry. Co. y. Doherty (Tex. App.) 15 S. W. 44.
2« Carpenter, J», in Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N.
H. 159, citing Pearson y. Sketton, 1 Mees. &. W. 504; Wooley y. Batte, 2 Car. &
P. 417; Belts y. Gibbons, 2 Adol. & E. 57; Adamson y. Janris, 4 Bing. 66;
Ayery y. Halsey, 14 Pick. 174; Gray y. Boston Gaslight Co., 114 Mass. 149;
Churchill y. Holt. 127 Mass. 165, 131 Mass. 67; Smith y. Foran, 43 Conn. 244.
so Bailey y. Bussing, 28 Conn. 455; Nashua Iron & Steel Co. y. Worcester &
N. R. Co., 62 N. H. 159.
Oh. 8] R£LA'nON8HIP. 217
defendant, ordinarily, but not Invariably, and to
hiB sole right to recover for any tort committed
against her.
(b) The use of coverture as a defense to a cause of ac-
tion really based on contract, but attempted to be
enforced through the form of an action ez delicto
to avoid her exemption from liability for her con-
tract.
lAabUity at Oommon Law for Torts of Wife.
At common law the i>er8onalit7 of a married woman was merged
in that of her husband. Man and wife were one, and the man was
that one. Therefore, even after a divorce, she could not sue him
for a tort committed against her, e. g. for assault and battery.*^
All her property became his, — so did her debts. Her husband was
held responsible for her torts whether committed before or after
marriage.^ ^ Indeed, he might even have been arrested for his
wife's tort** It was impossible for the wife during coverture to be
either sole plaintiff or sole defendant in action ex delicto, and by
reason of this rule the husband was joined for conformity. It would
seem there was doubt whether he was joined because he was liable,
or whether this joinder made him liable to pay damages and cost
of suit But in either case it did not make him a tort feasor, either
sole or joint, nor give any cause of action against him alone. If
the wife died, the action abated; and, if the action was brought after
sentence of divorce was pronounced, the husband could not have
been joined.** If the husband died, the wife could then be sued as
s» Abbott V. Abbott, 67 Me. 304; Phmips y. Barnet, 1 Q. B. Diy. 436.
s^ Generally, as to UabUity of husband for torts of wife during coverture,
see Baker v. Young, 44 IlL 42-47; Wright v. Kerr, Add. (Pa.) 13; Vine v.
Sjmndcrs, 5 Scott, 359; Ball y. Bennett, 21 Ind. 427; Hinds v. Jones, 18 Me.
34S; DaUey y. Houston. 58 Mo. 361; Garleton v. Haywood, 49 N. H. 314;
Fowler y. Chichester, 26 Ohio St 9; Jackson v. Kirby, 37 Vt 448; BrazU y.
Moran, 8 Minn. 236 (Gil. 205).
32 Solomon y. Wass. 2 HUt (N. Y.) 179.
32 Com. Dig. tit. "B. & F."; Bac. Abr. tit "B. & F."; Macq. Husb. & W.
(3d Ed.) 92: Capell y. PoweU, 17 C. B. N. S. 743; Head y. BHscoe, 5 Gar. &
P. 484; Phillips y. Barnot, 1 Q. B. Diy. 43G; Wright y. Leonard, 11 O. B. N. 8.
258-266. But see Walnford y. Heyl, L. R. 20 Eq. 321; McKeown y. Johnson,
218 LIABIUTY FOB TORTS COMMITTED BY OR WITH OTHERS. [Ch. -^
feme sole.** The husband, however, was liable for property con-
verted by her alone, because the converted property necessarily be-
came his, and the conversion was deemed to be for his use, and he
could have been sued alone. Indeed, it appears that, even if the
conversion had been the result of the joint act of both, he could have
been sued alone.* • When torts were committed by her in the pres-
ence of her husband, he was conclusively presumed to have coerced
her, and was solely liable for consequent damages.'*
Same — Coverture as a Defeme to Actions in Form ex Ddicto.
A married woman was by common law incapable of binding her-
self by contract, and therefore, like an infant, could not be made
liable for a wrong in an action of deceit or the like when this would
have in substance amounted to making her liable on contract For
example, an action could not have been maintained against a hus-
band and wife for her false and fraudulent representation that she
was a widow at the time she executed a bond and mortgage, in ex-
change for which another gave up to her promissory notes to a great
amount against third persons.*^
«
71. Modem statutory provisions, as they have extended
the povrers and rights of married woman, have in-
creased her duties and liabilities. Their tendenoy
is—
^ (a) As to torts committed by her, to attach to her lia-
bility jointly with her husband, or to the exclusion
of her husband's responsibility by virtue of rela-
tionship alone, leaving cases where the husband
1 McCord (S. G.) 578; Cassin v. Delaney, 38 N. Y. 178; Baker v. Brasllnu 18
R. I. 6ar>, 18 AtL 1030.
s« 2 Cord, Mar. Worn, f 1149.
SB 2 Cor^, Mar. Worn. S 1147. But see Draper v. Fulkes, Yelv. 166; Key-
worth y. HiU, 3 Bam. & Aid. 685; Heckle v. Luryey, 101 Mass. 844; Rowing
V. Manly. 49 N. Y. 192, 198, 199.
»• Cooley, Torts, p. 132; Schouler, Husb. & W. § 174.
91 Kean v. Coleman, 39 Pa. St 299; Fairhorst v. Liverpool Ass'n* 9 Bxch.
422, 23 Iaw J. 103; Cooper v. Witham, 1 Lev. 247; Woodward v. Barnes, 46
Tt 332; Trost Co. v. Sedgwick, 97 U. S. 304; Kowing v. Manly, 49 N. Y. 192.
Ch. 3] BELATION8HIP. 219
and the wife are Joint tort feasors, or principal and
agent) to ordinary rules.
(b) As to torts committed against her i)er8on and prop-
erty to entitle her to recover damages in her own
right, subject to her husband's right to recover for
damages done him through wrongs to her.
(c) As between husband and wife to deny the right to
sue in tort.
Oeneral Effect of English Statutes.
The English married women's act (1882) provided that a married
woman may both sue and be sued in tort in all respects as if she
were unmarried. The husband is liable only to the extent of the
property acquired by him through his wife, so far as torts committed
by her before marriage are concerned; but for the wife's torts com-
mitted during coverture his liability continues unlimited. She may
sue her husband for a tort to her separate property, but he has no
corresponding right of action against her for torts to his property.
Neither husband nor wife can sue the other for any tort of any other
kmd."
Oeneral Effect qf American Statutes — Torts Committed by Wife*
In the United States, the common-law disabilities of a married
woman, and liability of her husband for her torts, remain, except
as modified by statute.** Bights, duties, and liabilities vary as legis-
lation varies. No universal statement, therefore, can be made as
to the general law. But in many, and perhaps most, states, the
courts have been exceedingly conservative in adopting startling in-
novations in the common-law doctrine of liability of the husband for
the acts of the wife, and require that the intention to make such
changes be clearly and unambiguously expressed.^* The tendency
» 45 & 46 .Vict c. 75, IS 1, 12, 14, 15; Seroka v. Kaltenburg, L. R. 17 Q. B.
177, 23 Gent Law J. 364; Weldon y. De Bathe, 14 Q. B. Diy. 339, 28 Ir. Law
T. 109. Inability under English act discussed, 24 Ir. Law T. 273.
S0 Dean v. Metropolitan El. Ry. Co., 119 N. Y. 540, 23 N. B. 1054.
«o McElfresh v. KirkendaU, 86 Iowa, 224; Luse v. Oaks, 36 Iowa, 562; Stew.
Husb. & W. fl 14, 15, and cases; Wheeler & Wilson Manuf' g Co. y. Heil, 115
Pa. St 487, 8 Atl. 616; Fitzgerald v. Quann, 33 Hun, 652; Id., 109 N. Y. 441,
17 N. B. 354; Rowing v. Manley, 57 Barb. 479; Fowler y. Chichester, 26 Ohio
9t 9-14; McQueen v. Fulgham, 27 Tex. 463; Ferguson y. Brooks, 67 Me. 251-
222 LIABILITY FOR TOBT8 COMMITTED BY OR WITH OTHERS. [Ch. 3
ertj she is liable in tort separate from her own husband, even if her
hnsband be liable for her personal tort."^
Where the wife does an act not under her husband's coercion,
but both of them act on their own accord, they may be sued jointly;
as where they Toluntarily join in conversion,^^ libel and slander,'^
assault and battery.*^* Where a husband, as agent of his wife,
leased her land, and, with her knowledge, made her his coplaintiff
in an attachment suit against the tenant for her rental part of the
crops, prosecuting the suit for their joint benefit, it was held that
the wife was jointly liable for the wrongful acts of the husband
in carrying forward the action."* The husband may be liable for
the acts of his wife as his agent Thus, on a sale of business, where
the wife represented the daily receipts as greatly in excess of what
they really were, her husband, as principal, was held personally
liable/' The wife may be held liable for the acts of her husband as
her agent Thus, she can be held liable for the fraud of her hus-
band dealing as her agent with such property.'*
sovanneman v. Powers, 56 N. Y. 39-42; Quilty v. Frttie, 135 N. T. 201,
32 N. E. 247. Compare Flesh y. Lindsay, 115 Mo. 1, 21 S. W. 007.
Bi EstiU y. Fort, 2 Dana (Ky.) 237; Peak y. Lemon, 1 Lans. 295. And see
Blake y. Blaekley, 109 N. 0. 257. 13 8. E. 786; Wirt y. Dinan, 44 Mo. App.
583.
ft2 McElfresh y. Kirkendall, 36 Iowa. 224; Fowler y. Chichester. 26 Ohio
St 9.
Bs noadcap y. Sipe, 6 Grat. 213; GuffcHi y. Reynolds, 17 How. 609. And.
generally, see Crow y. Manning, 45 La. Ann. 1221, 14 South. 122; Vine y.
Saunders, 5 Scott, 359, 4 Bing. N. O. 96; Marshall y. Oakes^ 51 Me. 308; Tobey
y. Smith, 15 Gray, 535; Hoffman y. Whaleman, 8 Lane. Law Rey. 217; (Pa.)
Hart y. Mental. 26 Pa. Law J. 33; Heckle y. Lunrey, 101 Mass. 344. 345;
Handy y. Foley, 12 Mass. 2.59; MUler y. Sweitzer. 22 Mich. 391; Carleton y.
Haywood, 49 N. H. 314.
»* Byford v. Girton (Iowa) 57 N. W. 588; Fogel y. Schmalz, 92 Cai: 412, 28
Pac. 444.
85 Taylor y. Green, 8 Car. & P. 316.
»« Ferguson y. Brooks, 67 Me. 251; R3we y. Smith, 45 N. Y. 230; Baum y.
Mullen, 47 N. Y. 577. As to liability of husband for negligence of wife's
seryant, see Ferguson y. Neilson, 17 R. I. 81, 20 Atl. 229. Where a married
woman employs her husband to negotiate a sale of her land, and in such
negotiation he makes false representations, and she afterwards completes
the sale by making a deed, the representations will be held as though made
by herself, since she cannot retain the benefits of his negotiationa, and re-
€h. 3] RKLATIONSHIP. 223
Same — Toris Oommitted against the W^e.
A wife may now generally recover for her own nee damages suf-
fered from a personal tort committed against her. The right of the
wife to sue for tort to her separate •^ or community •• property is
generally recognized. This entire subject will be subsequently
•considered at some length.
Tarte as between Husband and Wife,
The policy of the law does not incline to admit that a husband and
wife can commit torts against each other.'*
SAME—LANDLOBD AKB TENANT.
72. Normally, the ocoupant, and not the owner or land-
lord, Is liable to third persons for isjories caused
by the fidlure to keep the premises in repair. The
liability may, however, be extended to the land-
lord or owner —
(a) When he contracts to repair.
(b) Where he knowingly demises the premises in a ruin-
ous condition, or in a state of nuisance,
(o) Where he authorizes a wrong:.^
pudlate the means by which they were obtained. Kuappen t. Freeman, 4T
Mimi. 491, 50 N. W. 633.
»T In a suit for the infringemeDt trf a copyright, where It \b shown that
the copyright was taken in the name of the complaining publisher as "pro-
prietor," defendant cannot object that the author was a married woman, and
that her husband was entitled to the fruits of her literary labor; for it win
be presumed that the legal title of the author was properly vested in com-
plainant Scribner y. Clark, 50 Fed. 473. An action by a married woman
for personal injuries receiyed during coverture is not one concerning her
separate property, whch she can bring without the Joinder of her husband.
X^amb y. Harbaugh, 105 Gal. 680, 39 Pac. 56.
•• An action by a wife for mental suffering caused by defendant's failure
to deliyer telegrams announcing the shooting of her husband, whereby she
was prevented from seeing him before he died, is not an action to recover
•community property. Western Union Tel. Ck>. y. Kelly (Tex. Gly. App.) 20
S. W. 408.
ssPost, pp. 463, 464, "Injni^ to Family Relations'' under "Husband and
Wife."
•0 Adams y. Fletcher, 17 K. I. 137, 20 Atl. 263; Hart v. Cole, 156 Mass. 475,
SI N. E. 644; Caldwell y. Slade, 156 Mass. 84, 30 N. E. 87; MoGrath y.
224 LIABILITY FOB TORT^ COMMITTED BY OR WITH OTHERS. [Ch. 3
The general rale as to the liability, as between landlord and ten-
ant, for injuries caused by the defective condition of the premises,
is ^'that the tenant and not the landlord is liable to third persons
(or any accident or injury occasioned to them by the premises being
In a dangerous condition." •* Thus, a servant, while employed in re-
moving from a building articles manufactured by the lessees for his
employer, stepped into an uncovered and unguarded hole in the floor
of the premises from which the articles were to be removed, and was
injured. No cover was ever made for the hole, and no scuttle had
been constructed to cover it; but it was usually covered by a piece
of plank. It was held that the hole could not be said to be a nui-
sance of itself. It was the duty of the occupier of the premises to
protect against injury by the hole. The liability, therefore, was his,
and not that of the owner of the building.**
Walker, 64 Hun, 179, 18 N. Y. Supp. 915; Franke v. City of St. Louis, 110
Mo. 616, 19 S. W. 938; City of Denver v. Soloman, 2 Colo. App. 534, 31 Pac.
507; cases collected In Pell v. Reluhart, 12 Lawy. R^. Ann. 843 (N. Y. App.)
27 N. B. 1077; Cortis v. Kiley, 153 Mass. 123, 20 N. E. 421.
•1 Thus, in Cheetham v. Hampson, 4 Term R. 318, it was held that an ae<
tlon on the case, for not repairing fences, to the injury of plaintiff, can only
be maintained against occupier, and not against the owner of the fee, who is
not In possession. Underh. Torts, *p. 129, rule 22; Ahem v. Steele, 115 N. Y.
203, 22 N. E. 193 (coUectlng authorities) ; Sterger v. Van Sicklen, 132 N. Y. 499.
30 N. B. 987. liessor of railroad is not liable for torts of lessee. MiUer v. Rail-
road Co., 125 N. Y. 118, 26 N. E. 35. Landlord not liable for damage caused by
want of ordinary repairs to priyy vaults. Pope v. Boyle, 98 Mo. 527, 11 S. W.
1010. And see Texas & P. Ry. Co. v. Mangum, 68 Tex. 342, 4 S. W. 617, and
Franke v. City of St Louis, 110 Mo. 516, 19 S. W. 938. And, geieraUy, see City
of Chicago V. O'Brennan, 65 111. 160; Gridley v. City of Bloomington, 68 HI.
47; City of Peoria v. Simpson, 110 111. 294; City of Lowell v. Spaulding, 4
Cush. (Mass.) 277; Brunswick-Balke CoUender Co. v. Rees, 69 V^is. 442, 34 N.
W. 732; Edwards v. Railway Co., 25 Hun, 197; TayL Landl. & Ten. § 539;
1 Atchinson, Torts, 197, 198.
•3 Caldwell v. Slade, 156 Mass. 84, 30 N. E. 87. Cf. Dalay v. Savage^ 146
Mass. 38, 12 N. E. 841; Adams v. Fletcher, 17 R. I. 137, 20 Ati. 203; City of
Denver v. Soloman, 2 Colo. App. 534, 31 Pac. 507; Franke v. City of SL
Louis, 110 Mo. 516, 19 S. W. 938; McGrath v. V^alker, 64 Hun, 179, 18 N. Y.
Supp. 915; cases collected 12 Lawy. Rep. Ann% 843. As to responsibility of
landlord for tenant's negligence with respect to gas, see Holden v. Liverpool
New Gas & Coke Co., 3 Man. Q. & S. 1; Bartlett v. Boston Gaslight Co., 122
Mass. 209; Fisher v. ThirkeU, 21 Mich. 1; Bigelow, Lead. Cas. 627 (and see
notes).
Ch. 3] BKLATIONSHIP. 225
Contract to Repair,
If, hoTveyer, the landlord lets the premises with a covenant to re-
pair, eyen if the tenant is to pay for them, the landlord is liable.
Under such circumstances, workmen negligently left the entrance
to the cellar in the public hall uncovered during the night, and the
plaintiff fell into it and was injured. The landlord was held lia-
ble.*' On the other hand, if a tenant covenants to keep the prem-
ises in repair, the landlord cannot be said to authorize the continu-
ance of a nuisance; and not he, but the tenant, will be liable.*^
Letting Premises in Ruinous Condition or Strite of Nuisance — Authorizing
WrongB,
Moreover, if the landlord knowingly let the property in a condi-
tion of nuisance, he (and the tenant also) may be liable to third per-
sons.*** He is said to have authorized the continuance of the wrong
•» Leslie v. Pounds, 4 Taunt G49; Nelson v. Liverpool Brewery Co., 2 C.
P. Div. 311. Cf. Pretty v. Bickmore, L. R. 8 C. P. 401, with Gwinnell v.
Earner, L. K. 10 C. P. 658. But reservation of right to enter premises to re-
pair tlie same does not attach liability to landlord. Clifford v. Atlantic Mills,
140 Mass. 47, 15 N. B. 84, per Holmes, J., in opinion of great ability, collatlug
cases. But a decayed stairway in the rear of leased premises is not a nui-
sance to the occupant of an adjoining house, so as to make the lessor responsl-
ble, under his covenant to repair, for an injury sustained by such neighbor
while walking on the stairway. Timlin v. Standard Oil Co., 126 N. Y. ^14, 27
N. K. 780, distinguishing Sterger v. Van Siclen (Slip.) 7 N. Y. Supp. 805; Id.,
132 N. Y. 499, 30 N. E. 987. The landlord is under no implied obligation to
make ordinaiy repairs. Medary v. Gathers, 161 Pa. St. 87, 28 Atl. 1012; Hol-
lingsworth v. Atkins, 46 La. Ann. 515, 15 South. 77.
«4 Post, note 67. If the landlord undertakes to transmit power to adjacent
buildings, he is liable for injury to an employ 6 of one of tlie tenants by negli-
gence In not keeping pulleys and shafts hi safe condition, though the lease re-
quired tenant to keep shaft in repair. Poor v. Sears, 154 Mass. 539, 28 N. E.
1046; Pretty v. Bickmore, L. R. 8 C. P. 401. And see Gwinnell v. Eamer, L. R.
10 C. P. 658. Cases as to liability of landlord for the condition of a part of
the premises not controlled by the tenant are collected at page 155, 23 Lawy.
Hep. Ann. And see Jones v. Millsaps (Miss.) 14 South. 440.
«5 Both the owner, who constructs an offensive cesspool, and the tenant,
who uses the premises, are liable for injury to adjoining occupant. Joyce v.
Martin, 15 K. I. 558. Both may be liable for negligence,— the landlord, for
negligence in construction; the tenant, for negligence in use of such prem-
UkW OF TOUTS— 13
226 LIABILITY FOR TORTS COMMITTED BY OK WITH OTHERS. [Ch. 3
only if he had notice of ruinous condition,'* and not then if the
tenant is bound to repair.'^ But where property is demised and at
the time of the demise is not a nuisance, but becomes so only by the
act of the tenant while in his possession, and the injury happens
during such possession, the owner is not liable.** But where the
owner of the premises leases premises which are in a condition of
nuisance, or must in their nature of things become so by their user,
and receives rent, he is liable for the injury resulting from such nui-
sance.** Thus, if landlord let premises with a stack of chimneys
in a ruinous and fallen state, he is liable for damages; ^* but if he
builds a chinmey which by the act of the tenant becomes a nuisance,
although the tenant could have built fires so that no nuisance would
have resulted, the tenant is liable, and not the landlord.^ ^ But
where the demise was of a lime kiln and quarry, the landlord was
held liable for the nuisance resulting from smoke from the kiln, as
being the necessary consequence of an act he authorized.^* A for-
tiori, if the lessor of premises licenses the lessee to perform acts
which amount to a nuisance, the lessor is liable.''*
ises. Eakin v. Brown, 5 N. Y. 36; McDonough v. Gilmans 3 AUen (Mass.)
264; Todd v. Flight, 9 C. B. (N. S.) 377; Gandy v. Jubber. 5 Best & S. 485.
9 Best & S. 15; Rich v. Basterfleld, 4 O. B. 783; RusseU v. Shentcm, 3 Q. B.
449; O'CJonnor v. Andrews, 81 Tex. 28, 16 S. W. 628.
«e Welfare v. London & B. Ry. Co., L. R. 4 Q. B. 693; Southcote r. Stanley,
1 Hurl. & N. 247; Slight y. Gutzlaff, 35 Wis. 675. But such knowledge may
be constructive. Timlin v. Standard Oil Co., 126 N. Y. 514, 27 N. B. 786;
Dickson V. Chicago, R. I. & P. B. Co., 71 Mo. 575.
6T Pretty v. Blckmore, L. R. 8 C. P. 401; GwlnneU v. Earner, L. R. 10 C.
P. 658. But see Ingwersen v. Rankin, 47 N. J. Law, 18.
«8 Owings V. Jones, 9 Md. 108; Rich ▼. Basterfield, 4 0. B. 783. Et vide
Saxby v. Manchester, S. & L. Ry. Co., L. B 4 C. P. 198.
«» Roswell V. Prior, 12 Mod. 635; Godley v. Haggerty, 20 Pa. St 387; Con-
greve v. Smith, 18 N. Y. 79; Clifford v. Dam, 81 N. Y. 52. Cf. Fisher y. Thlr-
kell, 21 Mich. 1-20. Et vide Albert v. State, 66 Md. 325, 7 Ati. 097. The
owner and the tenant naay be Jointly liable. Joyce v. Martin, 15 R. L 558
(reviewing cases).
TO Todd V. FUght, 9 C. B. (N. S.) 377.
71 Rich V. Basterfield, 4 C. B. 783.
78 Harris v. James, 45 Law J. Q. B. 545.
78 White V. Jameson, L. R. 18 Eq. 303. And see Lufkin v. Zane, 157 Mass.
117, 31 N. E. 757.
Ch. 3] RELATIONSHIP. 227
Liability of Landlord to TenaniJ^
An implied grant of whatever is necessary or beneficial to the
thing granted has been recognized J' Therefore a tenant may sue
Ills landlord for granting to a third person permission to construct
u chimney obstructing such tenant's window J* The law does not,
however, imply a warranty on the part of the landlord that the
premises are fit for occupation or for the tenant's purposes.'^' There-
fore, in the absence of fraud or misrepresentation, a landlord is not
responsible for injuries happening to his tenant by reason of a snow-
slide or avalanche.'' ' If the master agrees to make repairs, damage
<:onsequent on failure to perform the covenant may be actionable ex
contractu.^* If damage result from negligence in making repairn
under the agreement, recovery may be had ex delicto.**
T* Trover lies by landlord against tenant for value of wood into which trees
wrongfully severed from the preml3e8 have been converted. Brooks v. Rogers,
101 Ala. Ill, 13 South. 386. Where a tenant's negligence caused the deetnii -
tlcm of the premises by fire, the landlord may sue on the contract, without
being compelled to resort to an action on the case for negligence. Stevens v.
Pantlind. 05 Mich. 145, 54 N. W. 716.
T5 Doyle v. Lord, 64 N. Y. 432; Case v. Minot, 158 Mass. 577, 33 N. B. 700
(collecting Massachusetts cases); Tayl. Land!. & Ten. f 161; 2 Washb. Real
Prop. 318, 319, 328-331.
7« Case V. Mlnot, 158 Mass. 577, 33 N. B, 700.
77 Buckley v. Cunningham (AU.) 15 South. 826; Baker v. Holtpzaffell, 4
Taunt. 45; Dutton v. Gerrlsh, 9 Cush. (Mass.) 89; Bowe v. Hunking, 135
Mass. 380; Naumberg y. Young, 44 N. J. Law, 341-345. The law has been
changed by statute in Ohio nnd Indiana. 33 Am. Law Reg. 114, 115.
7 8 Doyle V. Railway Co., 147 U. S. 413, 13 Sup. CJt. 333; Booth v. Merriam,
155 Mass. 521, 30 N. E. 85. A landlord is not liable for a failure to disclose
the existence of a defective drain, discovered by him during a tenancy at
will, during which the tenant ooutrncted typhoid fever and died. Bertie v.
Flagg, 161 Mass. 504, 37 N. E. 572. Et vide Kern v. Myll, 94 Mich. 477, 54
N. W. 176. See Id., 80 Mich. 525, 45 N. W. 587. As to Uability of landlord
to tenant for damage done tenant^s goods in consequence of repair to leased
premises, see Toole v. Beckett, 67 Me. 544; Glickauf v. Maurer, 75 111, 280;
Rosenfleld v. Newman (Minn.) 60 N. W. 1085; Mumby v. Bowden, 25 Fla.
4!S4, 6 South. 453. As to conversion between landlord and tenant, see post, p.
721, "Convei-sion."
7» Clapper v. Kells, 78 Hun, 34, 28 N. Y. Supp. 1018. The fact that the land-
lord, after the cellar had become flooded with filth and water, gratuitously
undertook to remove the same, and did so negligently, does not entitle the
tenant to abandon the premises. Blake v. Dick (Mont.) 38 Pac. 1072.
•0 Callahan v. I^oughran, 102 C^al. 476, 36 Pac. 835. As to liability of land-
228 LIABILITT VOR TOBTS OOlffinTTED BY OB WITH OTHKBS. [Ch. 3
SAMS— IHBSFEHDSHT COHTBACTOB.
73. An independent contractor is one -v^ho undertakes to
produce a given result without being in any way
controlled as to the method by -which he attains
that result. He is distinguished firom a servant,
who, on the other hand, is under the orders and
control of his master in respect to the means and
methods used to attain the end for which he is
employed.
It is of great importance to determine whether in a particular case
there exists the relationship of master and servant (in its broadest
sense), or of employer and independent contractor. "For purposes
of liability, no man can have two masters.*' And so far as the de-
fendant is concerned, the question may inyolve his entire responsi-
bility for damages. If he can show that the harm was done by
an independent contractor, in many, perhaps in most, cases he can
escape liability.*^
lord to tenant's Bervant, see Perez v. Raband, 76 Tex. 191, 13 a W. 177;
Trinity & S. Ry. Co, v. Lane. 70 Tex. 643, 15 S. W. 477, and 16 S. W. 18. As
to tenant's guests, see Eyre ▼. Jordan. Ill Mo. 424, 19 S. W. 1093.
«i Singer Manufg Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct 175; Waters ▼.
Pioneer Fuel CJo., 52 \finn. 474, 55 N. W. 52; Sproul v. Hommlngway, 14 Pick.
1; Powen V. Virginia Const Co.. 88 Tenn. 692, 13 S. W. 691; Lawrence v.
Shipman, 30 Conn. 586; Crenshaw v. Ullman. 1J3 Mo. 633, 20 S. W. 1077;
Cuinr V. Railroad Co., 35 N. J. Law, 17; Long v. Moon, 107 Mo. 334, 17 S. W.
810; Brannock v. Elmore. 114 Mo. 55, 21 S. W. 451; Scarborough v. Railway
Co., 94 Ala. 497, 10 South. 316; Hawver v. Whalen. 49 Ohio St. 69, 29 N. E.
1049; Charlebols v. Gogebic & M. R. Co., 91 Mich. 59, 51 N. W. 812; City &
Suburban Ry. Co. y. Moores (Md.) 30 Atl. 643; Harris v. McNamara, 07 Ala.
181, 12 South. 103; Savannah & W. R. Co. t. PhiUips, 90 Ga. 829, 17 S. K.
82; Larson v. Metropolitan Ry. Co., 110 Mo. 234, 19 S. W. 416; Welsh v.
Parrish, 148 Pa. St. 590, 24 Atl. 86; Haley v. Jump River Lumber Co., 81
Wis. 412, 51 N. W. 321, 956; New Albany Forge & Rolling Mill y. Cooper,
131 lud. 303, 30 N. E. 294; Piette v. Bavarian Brewing Co., 91 Mich. 605,
52 N. W. 152; Alabama Midland Ry. Co. v. Martin, 100 Ala. 511, 14 South.
401. See dissenting opinion (Dwight, C.) in McCaflferty v. Railway Co., 61
N. Y. 178. Sadler v. Henlock, 4 El. & Bl. 570-578; Rourke v. White Moss
Colliery Co., 2 C. P. Dlv. 205. As to relation of a tenant, as an independent
contractor, to his landlord, vide Rosowell v. Pryer, 12 Mod. 635; Cheetham
Ch. 3] RKLATION8UIP. 229
Ordinarily it is regarded that the test of the relationship is
"whether the defendant retainedthepowerof controlling the work." ■*
For example, a i)erson buys standing timber, and a third person con-
tracts to cut it into lumber at an agreed price per thousand feet,
assuming entire control of the work and hiring and paying his men.
Under such circumstances, the purchaser of the timber is not liable
for injuries to adjoining land resulting from the negligence of such
third person or his employes in the performance of the contract."'
But this standard of control is not absolute or inflexible. Cer-
tain control on the part of the employer may be retained, and the
contractor be an independent contractor and not a servant. Thus,
the fact that one doing work on a building is to be paid a round sum
does not make him a servant of the owner; but he is an independent
contractor if he is in the exercise of a distinct and independent em-
ployment, using his own means and methods for accomplishing the
work, and is not under the immediate supervision and control of the
owner. The mere fact that the architect of the owner directs cer-
tain things to be done by the contractor where he does not exercise
control over him in his manner of doing the work or his choice of
workmen, does not make the contractor a servant of the owner.**
V. Hnmiisou, 4 Term R. 318; Leslie v. I'ounds, 4 Taunt 649; Pretty v. Blck-
more, L. R. 8 C. P. 401; Nelson v. Llverpcol Brewery Co., 2 C. P. DIv. 311;
Mahon v. Bums, 9 Misc. Rep. 223, 29 N. Y. Supp. 0S2; Gwinnell v. Earner,
li. R. 10 C. P. GTiS; Todd v. Flijrht. 9 C. B. (N. S.) 377; Cnrtis v. Klley. 15:«
Mass. 123, 20 N. E. 421; Laugher v. Pointer. 5 Barn. & C. 547. Cf. Fenton v.
Dublin Steam Packet Co., 8 Adol. & E. 835; Dalyell v. Tyrer, EL, Bl. & El.
899. But see Illinois Cent. R. Co. v. King, G9 Miss. 852, 13 South. 824; Brow
V. Raihroad Co., 157 Mass. 399, 32 N. E. 3(i2. And see post, p. 241 et seq., "Re-
lationship of Master and Servant, When Established."
«2 Fulton Co. St. R. Co. v. McConuell, 87 Ga. 736. 13 S. E. 828; New Or-
leans, M. & C. R. Co. V. Banning, 15 Wall. 649-657; Painter v. Mayor, etc.,
46 I*a. St. 213, and vhhqs collected; Singer Manufg Co. v. Rahn, 132 U. S.
518, 10 Sup. Ct. 175; Norwalk Gas Light Co. v. Borough of Norwalk, 63
Conn. 495, 28 Atl. 32.
88 Knowlton v. Holt (N. H.) 30 Atl. 346. Cf. Hughbanks v. Boston Inv.
Co. (Iowa) 60 N. W. t>40. A tug owner is an independent contractor, as to
yessels In tow. Mclx)ughlin v. New York Lighterage Transp. Co. (Com. PI.)
27 N. Y. ^upp. 248. Cf. Bissell v. Torrey, 65 Barb. 188. So a public car-
man. McMullen v. Hoyt, 2 Daly (N. Y.) 271.,
8« Morgan v. Smith, 159 Mass. 670. 35 N. E. 101. Cf. Linnehan y. Rollins,
137 Mass. 123. The French law on this point will be found in Bigelow. Lead.
\
230 LIABILITY FOR TOUTS COMMITTKD BY OB WITH OTHERS. [C'h. ^
Again, the right of a railway company to inspect, and in a consider-
able measure to regulate, by its engineer or other proper officer, the
construction of way, by a contractor who nevertheless is independ-
ent, is generally recognized.** The cases are, however, by no means
agreed as to what reservation of control in the contract is consist-
ent with the relationship of employer and independent contractor.'*
The payment of wages, the power to dismiss, select, or compel obe-
dience of the servant, to terminate, control, or to give directions
as to the result of the work, afford a test (but not a conclusive or
unfailing test) of whether the servant is the servant of the employer
or the independent contractor.'^ Payment by the job instead of by
the day does not make an employ^ an independent contractor.*'
But, on the other hand, if the contract excludes known methods of
avoiding harm, the defense of an independent contractor does not
avail.'*
Gas. 659. But where one was engaged in the construction of a railroad for
a lumber company under contract, and it does not appear how he was paid,
or whether it devolved on him exclusively to furnish material for the work,,
and pay the hands in its accomplishment, or whether the company exeix^ised
control over it, the fact that it supervised the cutting of timber by him on
the land t&rough which the road was to pass renders him its servant in law.
Waters v. Greenleaf-Johnson Lumber Co., 115 N. G. ^8, 20 S. E. 718; Hard-
ing V. City of Boston (Mass.) 39 N. E. 411.
as The engineer of a railroad company may be allowed to inspect and ap-
prove construction of piers for a railroad bridge, the work on which was
being done by independent contractors, without attaching liability to the
railroad company. Casement v. Brown, 148 U. S. 615, 13 Sup. Ct 672. But
see post, note 95; Alabama Midland Ry. Co. v. Martin (Ala.) 14 South. 401;
Eby v. Lebanon Co. (Pa. Sup.) 31 Atl. 332; Hitte v. Republican Valley R. Co.,
19 Neb. 620, 28 N. W. 284; Rledel v. Moran, Fitzslmons & Co. (Mich.) 61 N. W.
509.
se3i Am. Law Reg. 352, considering cases; St John's &, H. R. Co. v.
Shalley, 33 Fla. 397, 14 South. 890; Pierce, R. R. 289, notes 5, 6, 7, 8.
87 Quarman v. Burnett, 6 Mees. & W. 499; Steel v. Southeastern Ry. Co.^
16 C. B. 550; Reedie v. London & N. W. Ry., 4 Ezch. 244; Fenton v. Dublin
Steam Packet Co., 8 Adol. & E. 835; Larson v. Metropolitan St Ry. Co., 110
Mo. 234, 19 S. W. 416; Brackett v. Lubko, 4 Allen (Mass.) 138; Forsyth v.
Hooper, 11 AUen (Mass.) 419; Wood, Mast. & S. p. 630, § 317.
«8 Geer v. Darrow, 61 C3onn. 220, 23 Atl. 1087.
«» Collins V. Chartlers Val. Gas. Co., 139 Pa. St 111. 21 Atl. 147 (applied
to drilling well, whereby neighboring water was contaminated).
Gb. 3] RELATIONSHIP. 231
74. A person employing an independent contractor is not
generally responsible for the latter's wrongful acts,
or those of a sabcontractor or servant of either,
except when —
(a) He is negligent in the selection of the contractor.
(b) He personally interferes with, or undertakes to do,
or has accepted, the contractor's work*
(c) The thing contracted to be done is tortious.
Cd) There has been a fidlure to conform to a standard
of duty -which is required of the employer abso-
lutely.
As a general rule, the contractor, and not the employer of the con-
tractor, is liable for the tort of the contractor and of the contractor's
servanta** Borne doubt, however, has been expressed whether the
same principles apply when the tort is the act of the contractor or
of the subcontractor himself.*^ Where the contract is compulsory,
as where a butcher is compelled to employ a licensed drover, the
contractor and not the employer is liable.**
The employer is not liable for the negligence of the contractor's
servants in the performance of a contract to do a lawful and proper
thing. Thus, the owner of lands who employs a carpenter for a
specific price to alter and repair a building thereon, and to furnish
all the materials for this purpose, is not liable for damages resulting
to a third person from boards deposited in the highway in front of
the land by a servant in the employ of the carpenter, and intended to
•0 A turnpike company, lawfully pennitting an independent contractor to
operate an engine over railway tracks which lie on the pike, In performing
his contract with the company, is not liable for an injury occurring to a trav-
eler on the pike through the negligent operation of such engine. City &
Suburban Ry. Go. v. Moores (Md.) 30 Atl. 643. A person who has hired a con-
tractor to do certain work, and has no immediate control over the servants
of the contractor, is not liable to a person injured through the negligence of
one of Buch servante (De Forrest v. Wright, 2 Mich. 368, foUowed). Riedel v.
Moran, Fitzsimons & Co. (Mich.) 61 N. W. 509.
»i Pig. Torts, S 06.
•s MUligan v. Wedge, 12 AdoL & E. 737; Case of The Maria, 1 W. Rob. Adm.
96. Bat see Sadler v. Henlock, 4 Bl. & Bl. 570; Martin v. Temperly, 4 Q. B.
298.
232 LIABIUTT FOE TOKIB ODMIUnED BT Oft WITH OTHSBS. [Ch. t
be ined in socli alteratioo and r^iair.** Hub lacicly pertains to tlie
m^ide of doing the work.**
y^'j "jefitt \n .V>^-;^., — /c'^r r*:^ sniA Work.
If the employer is negligent in the adection of liia independent
contractor, or otherwiae, tliia may be actionaMe fanlt.** Interfer-
ence by the employer with the contractor'a w«k attaches liatnlity
to hiuL Thns, where a contractor employed to make a drain left
a Leap of gravel by the roadside, the employer paid a narry to cart
it away. This was not properly done, and a third p^von was con-
Kfi^aently np<<et as he was driving home. The employer was held
»2 Uillard r. Kk-Litrdw/n, 3 Gray. 349; Bigelow, Lead. Css. tSli. OTerruliiig
BiMh T, Htetniiuui, 1 Bos. & P. 40L Bm see liassachusetts ca^^e. posn, p. 232.
(Tbe CSM» citiii& questu^Ding. or ovfTrulinj? BiL«h t. Steiniiuui will be found cok-
krr-ted oo p. xxvili. of tbe ljr>t volume of TLompeoii cm Negligence.) Cf. Rob-
Mijj« T. Chicago City, 4 WalL 657. with Water Ca ▼. Ware, 16 Wafl. 566. And
Hrre Hexniuer v. Webb. 101 N. Y. 377, 4 N. E. 735; Id., Chase, Lead. Gas. 240;
Beagan v. Ca»ey, Itij Mass. 374, 36 N. E. 58; FdtoD t. Deall. 22 Vt IH;
Ball'-y r. Troy & B. i:y. Co.. 57 Vt 252; McLou^hlin v. Transportation Co..
7 WKw*. Rep. 110. 27 X. Y. Supp. ^18; Cnnnlngbam t. International R, Co., 51
Tex. r/X5; Atlantic* k. F. Ry. Co. v. Kiinl^erly, 87 Ga. 161, 13 S. E. 277; St.
IxiulH. A. & T. By. Co. t. Knott, 54 Ark. 424, 16 S. W. 9.
«»« S/ ammon r. Chicago, 25 III. 424; Steel v. Southeastern Ry. Co.. IG C. B.
5.VI, An eujployer {« not liable for the operation of a portable steam engine
by an indepeii(i<*iit < on t met or in such a way as to be a nuisance, when, prop-
«'rly ^XfMiK'd. DO liability would attach. Wabash. St. L. & P. Uy. Co. v. Far-
ver, in Ind. lie,, 12 N. E. 2ii6 (reviewing iiiauy eases). Cf. Skelton t. Fenton
i:i^:tilc Ligl.t At Power Co., lOU illch. 87, 58 X. W. <Wl. And see Loui.sville &
N. R. Co. V. r>rr. U\ Ky. 100. 15 S. W. a
»B Berg V. i'aiHons, S4 Hun, 00, 31 N. Y. Supp. 1091; Norwalk Gas Light Co.
r. Borough of Norwallt, »>5 Conn. 405, 28 AtL 32. And see Ardesco Oil Co. v.
GilHon, 03 Pa. St. 1^0; Sturges y. Society, 130 Mass. 414; 14 Am. & Eng. Enc.
I^aw, 8.''>i; 1 LawK'ju, Ki^rlits, Puiii. A: Prac. | 300; Branii<x?k r. Elmore, 114
Mo. 55, 21 8. W. 451; Cuff v. Railroad Co., 35 X. J. Law, 17; Connors v. Hen-
neKHy, 112 Mass. 9G; Ware v. St. Paul Water Co., 2 Abb. (U. S.) 261, Fed. Cas.
No. 17,172. Cf. Eugel v. Eureka Club, 137 N. Y. 100. 32 N. E. 1052. Berg v.
ParsoDH and Xorwalk Gas Light Co. v. Borough of Norwalk supply the case
Mr. TliompHon was unable to find, ''where a proprietor has been held answera-
ble for the negligence of an independent contractor, upon this ground alone.'*
2 Thomp. Neg. 908. And see article by Charles W. Pierson, Esq., 29 Am. Law
Rev. 220, and post, p. 001, "Negligence of Master In not Selecting Competent
Ooemploy^s"; post, "Negligence of Master and Servant.'*
Oh. 3] RSLATI0N8UIP. 233
liable.** Bat if the independent contractor abandons the work and
the employer continues the enterprise, the latter is primarily re-
sponsible.'^ The effect is the same if the tort arises after an inde-
pendent contractor has finished his work and his employer has ac-
cepted it. Thus, where an independent contractor had dug holes
and they had been accepted, the employer was liable for injuries
consequent on their being left unguarded.**
Liability where Thing Contracted to be Done is Tmiioue,
When the thing contracted to be done is tortious or unlawful,
merely doing it by another person under any form of contract will
not exonerate the employer. Thus, where a company without the
necessary special powers employed a contractor to open trenches in
the streets of a city, and a person was injured by falling over a
heap of stones left by the contractor, the com|>any was liable for the
contractor's wrongful act.** Where a canal company contracts with
»• Burgess v. Gray, 1 Man., G. & S. 578. Of. Fisher v. Rankin, 78 Hun, 407,
29 N. Y. Supp. 143; Norwalk Gas Light Co. v. Borou,$h of Norwalk, 63 Conn.
495, 28 AU. 32. And see Woodman y. MetropoUtan R. Co., 149 Mass. 335, 21
N. B. 482; Steel v. Southeastern Ry. Co., 16 C. B. 550; Pendlebury v. Green-
halgh, 1 Q. B. Dlv. 36; Gourdier v. Cormack,2 E. D.Smith (N.Y.) 254; Kina v.
Railroad Co., 66 N. Y. 181; Eaton v. Railway Co., 59 Me. 520-532, 534; Loiik
V. Moon, 107 Mo. 334, 17 S. W. 810; Clark v. Fry, 8 Ohio St. 358; Robinson v.
Webb, 11 Bush (Ky.) 464-477, 480; Houston & G. N. Ry. Co. v. Meador, Go
Tex. 77; Hughes v. Railway Co., 39 Ohio St. 461. Where the owner of a
building at the request of the contractor who was at work thereon furnished
a man to run the elevator for the use of the contractor, the elevator man Is
still the servant of the owner, who is therefore liable for injuries to the serv-
ant of the contractor caused by the negligence of the elevator man. Higgins
V. Western Union Tel. Co. (Super. N. Y.) 31 N. Y. Supp. 841.
87 Savannah & W. B. Co. v. Phillips, 90 Ga. 829, 17 S. E. 82.
»» Donovan v. Oakland & B. Rapid-Transit Co., 102 Cal. 245, 36 Pac. 517.
99 Ellis V. Sheffield, etc., Co., 23 Law J. Q. B. 42; Creed v. Hartman, 29 N.
Y. 591. A company which obtains leave to dig up streets and lay its pipes
along them is liable for personal injuries caused by the defective fllling of a
trench, even though the work was being done by and under the exclusive con-
trol of another, who had contracted to do the work for the company. Col-
grove V. Smith, 102 Cal. 220, 36 Pac. 411. And, generally, see Gorham v. Gross,
125 Mass. 232; Blessington v. Boston, 153 Mass. 409, 26 N. E. 1113; Sturges v.
Society, 130 Mass. 414; Curtis v. Kiley, 153 Mass. 123, 26 N. E. 421; Wood-
man V. Metropolitan R. Co., 149 Mass. 335, 21 N. E. 482; Babbage v. Powers,
130 N. Y. 281, 29 N. E. 132; Wilson v. White, 71 Ga. 500. Cf. Brown v. Mc-
234 LIABILITY FOR TORT8 COMMITTED BY OB WITH OTHEB8. [Ch. 3^
a third person for the repair of its canal, to be made with soil taken
from certain land, the contract is in its nature injurious to the land-
owner, and the company is liable for the damages caused by its per-
formance, under the doctrine of respondeat superior.*®*
LiabUiiy for Breach of Absolute Duty,
Where a person is bound to perform an act as a duty, or is held
to a certain standard of condiict, he intrusts the performance of that
act to another at his peril; and for failure of such person to perform
such act, or to conform to that standard of conduct, whether he
stood in the relationship of contractor or servant, the person on
whom the duty rests is liable for his negligence, and it is immaterial
whether the obligation be imposed by contract or general law.*®'
The line in the cases with respect to things lawful in themselyes,
but likely to be attended by injurious consequences, is not entirely
distinct^*' The law recognizes that one who has a duty to p^form
cannot shift the duty on the shoulders of another, and is liable
Leish, 71 Iowa, 381, 32 N. W. 885; BaUey v. Railway Co., 57 Vt 252; Mc-
Garthey v. City of Syracuse, 46 N. Y. 194-199; Eaton y. Railway Co., 68 He.
520; St. Paul Water Co. v. Ware, 16 Wall. 566.
100 Wimams y. Fresno Canal & Irr. Co., 96 Cal. 14, 90 Pac. 961; Crenshaw
v. Ullman, 113 Mo. 633, 20 S. W. 1077. As to blasting in yiolation of an ordi-
nance, see Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451; Brennan y. Schreiner
(Super. N. Y.) 20 N. Y. Supp. 130.
101 Mattise y. Consumers' Ice Manufg Co., 46 La. Ann. 1535, 10 South. 400;
City & Suburban Ry. Co. y. Moores (Md.) 30 Atl. 643; Storrs y. City of
Utica, 17 N. Y. 104; Colgrove y. Smith, 102 Cal. 220, 36 Pac. 411; WUUams
v. Fresno Canal & Irr. Co., 96 Cal. 14, 30 Pac. 961; Hole y. Sittlngboume B.
Co., 6 Hurl. & N. 48a And^ee article by Mr. H. H. Bond, in 3 Alb. Law J.
261. Pye y. Faxon, 156 Mass. 471, 31 N. E. 640.
102 TaJcing down a wall weakened by age and decay is not so intrinsically
dangerous as to attach liability to the owner as weU as to independent caa-
tractor. Engel y. Eureka Club, 137 N. Y. 100, 32 N. E. 1052; cf. Wilkinson
V. Deti-olt Sted & Spring Works, 73 Mich. 405, 41 N. W. 490; Gorham y.
Gross, 125 Mass. 232; Sturges y. Society, 130 Mass. 414; Sesseiigut y.
Posey, 67 Ind. 408. The work of making a cellar in a building waterproof is
not inherently dang^ous because it is necessary to use the coal holes in the
payement for the purpose of yentilation, and for the introduction of materials,
and the owner is not Uable for the negligence of the contractor in using the
coal holes. Maltbie y. Bolting, 6 Misc. Rep. 339, 26 N. Y. Supp. 903. Negli>
gence on the part of independent contractor in laying a pipe in accordance
with municipal ordinance attaches liability to the original employer. Oo^-
Ch. 3] RELATIONSHIP. 235
for its nonperformance although the fault be directly attributable
to an independent contractor. The duty may be a common-law
duty. Thus, the occupier of a house on whom devolved the duty of
caring for a lamp overhanging a highway, and who employed an
independent contractor to make the necessary repairs to it, was liable
for damages done by its falling on a passer-by.*®* Blasting with
dynamite, for example, would seem to be so intrinsically dangerous
that in many cases the employer cannot excuse himself by showing
a contract with another to do the work.*®* No man has a right so
grove V. Smith, 102 Cal. 220, 36 Pac. 115. In an action against a railroad
company by a passenger for injuries resulting from an obstruction of the
track by work being done thereon, it is no defense that defendant had placed
the work in the hands of an independent contractor, and that his negligence
cansed the obstruction. Carrico v. West Virginia Cent & P. Ry. Co. (W. Va.)
19 S. E. 571; Donovan v. Oaldand A B. Rapid-Transit Co., 102 Cal. 245, 36
Fac. 517; Houston & G. N. R, Co. v. Meador, 50 Tex. 77; Pickard v. Smith,
4 Law T. (N. S.) 470; Wood, Mast. & S. p. 625, f 316; Pierce, R. R. 290; Lan-
caster Ave. Imp. Co. v. Rhoads, 116 Pa. St. 377, 9 Atl. 852.
108 Tarry v. Ash ton, 1 Q. B. Div. 314; Gleeson v. Virginia Midland
Ry. Co., 140 U. S. 435, 11 Sup. Ct. 859. It is immaterial what time the acci-
dent happened, whether before, after, or during the work. Pig. Torts, 96. And
see Roemer v. Striker (Super. N. Y.) 21 N. Y. Supp. 1090; Khron v. Brock, 144
Mass. 516, 11 N. E. 748; Railway Co. v. Hopkins, 54 Ark. 209, 15 S. W. 010;
post, p. 836» "Negligence." As to party- wall cases, et sim., see Bower v. Peate, 1
Q. B. Div. 321; Dalton v. Angus, L. R. 6 App. Cas. 740; Hughes v. Percival, Lr
R. 8 App. Cas. 443; Gray v. PuUen, 5 Best & S. 970; Kngel v. Eureka Club,
59 Hun, 593, 14 N. Y. Supp. 184; Ketcham v. Newman, 141 N. Y. 205, 36 N,
E. 197; Hawver v. Whalen (Ohio Sup.) 29 N. B. 1049; Fowler v. Saks, 7
Mackey (D. C.) 570. An adjoining owner of a party wall has a right to in-
crease its height; and where he contracts with an independent contractor to
have this done in a lawful, proper, and usual way, so that the work does not
become, in itself, dangerous or extraordinary, and does not subject the exist-
ing wall to overweight, he is not liable for the damage incident to the falling
of the wall through some accident Brooks v. Curtis, 50 N. Y. 639, distin-
guished; Engel V. Eureka Club, 59 Hun, 593, 22 N. Y. Supp. 9S6, reversed;
Negus V. Becker, 143 N. Y. 303, 38 N. E. 290.
104 Norwalk Gas Light Co. v. Borough of Norwalk, 63 Conn. 495, 28 AtL 32.
And see cases collected in note to Hawver v. Whal^, 14 Lawy. Rep. Ann.
828-830, 49 Ohio St. 69, 29 N. E. 1049. Thus, the owner of premises within a
city who employs an independent contractor to do work thereon which in-
volves blasting^ through which a person not connected with the work is in-
jured, the owner is liable, if he knew that blasting was necessary, or learned
236 LIABILITY FOB TORTS COMMITTED BY OR WITH OTHEBS. [Ch. 3
to use his property that there will necessarily result a wrong to an-
other,— ^as, for example, a nuisance.*** The distinction between
owners of real estate and owners of personalty in this respect is
no longer recognized.***
And, generally, the performance of no daty owed to the public or
to private individuals can be delegated so as to escape liability.**^
In Lebanon Light, Heat & Power Co. v. Leak,*** a gas company, a
contractor, to whom was let the contract for boring gas wells, and
his subcontractor, were all held liable for injuries caused by the
negligent manner in which the gas pipes were laid, although the
plant had not been turned over to the company. Statutory obliga-
tions cannot be escaped by delegation of duties to a contractor.***
''Where certain powers and privileges have been specifically con-
ferred by the public upon an individual or corporation, for private
emolument, in consideration of which certain duties affecting public
health or safety of public travel hav^ been expressly assumed, the
individual in receipt of the emoluments cannot be relieved of re-
sponsibility by committing the performance of those acts to another.
In such cases liability cannot be evaded by showing that the injury
resulted from the fault or negligence of a third person employed to
that it was being done, and failed to take reasonably prompt and efficient
measures to prevent injury to other persons. Jones v. McMinimy (Ky.) 20 S.
W. 435. Et vide Brennan v. Schreiner (Super. N. Y.) 20 N. Y. Supp. 130;
French v. Vlx (Com. PI.) 21 N. Y. Supp. lOlG; Stpnc v. Cheehlre R. Corp., 1»
N. H. 427; City of Tiffin v. McCormack, 34 Ohio St. 638. But see Tibbetts v.
Knox, 62 Me. 437; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451; McCaflPerty
V. Sputen Ry. Co., 61 N. Y. 178. Compare Cuff v. Newark R. Co., 35 N. J.
Law, 17, with Carman v. Steubenvllle & I. Ry. Co., 4 Ohio St. 399.
108 Cuff V. Newark R. Co., 35 N. J. Law, 17; Chicago v. Robins, 2 Black,
418; Vogel v. Mayor, 92 N. Y. 10.
106 Reedie v. Railway Co. (1849) 4 Exch. 244. Cf. Bush v. Steinman (1799)
1 Bos. & P. 404, and Quarman v. Burnett (1840) 6 Mees. & W. 499.
107 Carrlco v. West Virginia R, Co. (W. Va.) 19 S. E. 571; Spence v. Schultz
(Cal.) 37 Pac. 220; Hawver v. Whalen, 49 Ohio St C9, 29 N. E. 1049.
108 Lebanon Light, Heat & Power Co. v. I^eap (Ind. Sup.) 39 N. B. 57.
109 Hole V. Sittingbourne R. Co., 6 Hurl. & N. 488; Ketcham v. New-
man, 141 N. Y. 205, 30 N. E. 197. Here the defendant was authorized by stat-
ute to make an opening over a navigable river. It was held liable, because
its contractor made such bridge so that it would not open, and plaintiff's ves-
sel was thereby prevented from navigating the river.
Ch. 3] RELATIONSHIP. 237
perform those duties. "• It was held that a turnpike company low-
ering the grade of its road, while in receipt of tolls and maintaining
the road ready for use, is bound to guard a threatened or dangerous
obstruction, and by suitable devices to protect travelers. The per-
formance of these duties it cannot escape by contracting with a
third person to perform them."* On the same principle, where a
110 Mr. Justice Clark, in Lancaster Ave. Imp. Co. v. Rhoads, 110 Pa. St
377, 9 Atl. 852. And see cases collected In argument, page 380. Carson v.
Leathurs, 57 Miss. 650; Wood, Mast. & S. pp. G21-<5:i4.
111 Lancaster Ave. Imp. Co. v. Rhoads, 116 Pa. St 377, 9 Atl. 852. General
corporation laws, like special charters, are in the nature of a contract. In
return for powers and franchise granted, the corporation is under obligation
to perform certain duties to the public, and cannot without consent of the
other party to the contract absolve itself from its obligation. A railroad
lessor is therefore liable for its lessee's negligence. Abbott v. Railroad Co.,
80 N. Y. 27; Langley v. Railroad Co., 10 Gray, 103; New York, etc., Ry. Co. v.
Winans, 17 How. 30; Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U. S.
23, 9 Sup. Ct 409; Central Transp. Co. v. Pullman's Palace Car Co., 139 U.
S. 62, 11 Sup. Ct. 478; Quested v. Newburyport & A. H. R. Co., 127 Mass. 204.
A railroad company may be held liable for the tort of the serrant of inde-
pendent contractor, in the exercise of some chartered privilege or power of
corporation, with Its assent, which he could not have exercised independently
of the charter. Such liability exists, however, in favor of third parties only.
It does not extend to servant of independent contractor. West v. Railway,
(3 111. 545; Toledo. St. L. & K. C. R. Co. v. Conroy, 39 111. App. 351; Pennsyl-
vania Co. V. Ellett, 132 111. 654, 24 N. E. 559. Et vide Vermont Cent Ry. Co.
V. Baxter, 22 Vt 365; Gardner v. Smith, 7 Mich. 410. Mr. Bailey, in his
work on the Law of Master and Servant, at page 472, says "the rule is per-
haps more liberal in respect to liability of railroad company," and cites Ed-
niundson v. Raih*oad Co., Ill Pa. St 316, 2 Atl. 404, and Hughes v. Railroad
Co., 39 Ohio St. 461, in support of this proposition, and In support of the fur-
ther statement that the dlfTerence Is denied. Neither case would seem to re-
veal any especial liberality to railroad companies. In fact, the cases already
rlted seem to hold a railroad company to a peculiarly strict responsibility
because of the delegation of the power of eminent domain. The cases dc.
however, recognize the doctrine of independent contractors of way. A rail-
road company is not liable for damage done by fires set by contractor in con-
struction of road. Callaham v. Railway, 23 Iowa, 562; Eaton v. Railway Co.,
59 Me. 520. But see St Johns & H. R. Co. v. Shalley, 33 Fla. 397, 14 South.
890. Nor by neglectful operation of construction train. Miller v. Railway, 70
Iowa, 655, 39 N. W. 188. See Pierce, R. R. 241-290.
The duty of a city to keep its streets In reasonably safe condition cannot
be delegated, and where it lets a contract for improving its streets, and the
238 LIABILITY FOB TOBT8 €»MlfITT£D BY OB WITH OTHERS. [Ch. 8
building is being constmcted on a city lot, and the excavation in the
sidewalk is not protected as required bv ordinance, the owner of the
lot is liable to persons injored by falling therein, though the work
is being done by an independent contractor.^^'
Liability for Acts of Subcontractors,
The rule as to contractors is extended to subcontractors.^^* Hie
inquiry in both eases is whether the relationship of master and serv-
ant exists between the original contractors and the subcontractors.
If it does not, then not the contractors but the subcontractors are
liable for their own and for their seirants' wrongs.*** But one who
has authorized the doing of an unlawful act is liaUe for any injury
resulting therefrom, although immediately caused by the conduct of
a subcontractor. Thus, one who without special authority makes
an excavation in the sidewalk of a public street is liable for an in-
jury resulting therefrom to a passer-by, though the injury was caused
by the negligence of a subcontractor in not properly guarding the
excavation.***
contractor makes excavations in the streets and fails to supply proper guards
or lights, and a traveler is injured tn c<msequence of such failure, the city is
liable, and it is immaterial that the city had no notice that the ditch was not
guarded or lighted. Wilson v. City of Troy, 60 Hun, 183, 14 N. Y. Supp. 721;
Id., 135 N. Y. 96, 32 N. E. 44; City of Sterling v. Schiffmacher, 47 111. App.
141; City of Beatrice t. Reid, 41 Neb. 214, 59 N. W. 770; Kollock v. City of
^ladison, 84 Wis. 458, 54 N. W. 725; Hepburn v. City of Philadelphia, 149
Pa. St. 335, 24 Atl. 279. And see Bigelow, Lead. Cas. 654; Bish. Noncont.
Law, § 605.
112 Spence v. Schultz, 103 Cal. 208. 37 Pac. 220; Crenshaw v. Ullman. 113
Mo. 633, 20 8. W. 1077; Savannah & W. R. Co. v. Phillips, 90 Ga. 829, 17 S.
K. 82.
lis Cuff Y. Railroad Co., 35 N. J. Law, 17; Railroad Co. v. Reese, 61 Miss.
581; The Harold, 21 Fed. 428; Rapson v. Curbitt, 9 Mees. & W. 710; Knight
V. Fox, 5 Exch. 721; Overton v. Freeman, 11 C. B. 867. Cf. Ellis v. Gas Co.,
2 EL & BL 767; MlUigan v. Wedge, 12 Adol. & B. 737; Scarborough v.
RaUway Co., 94 Ala. 497. 10 South. 316.
11* Pack V. Mayor, etc., 8 N. Y. 222. And see Johnson v. Ott, 155 Pa, St
17, 26 Atl. 751; Dalyell v. Tyrer, 28 Law J. Q. B. 52; Rapson v. Curbitt. 9
Mees. Sl W. 710.«
115 Creed v. Hartman, 29 N. Y. 591.
Oh. 3] RELATIONSHIP. 839
SAMS— MA8TEB AND SERVANT.
76. liiability for torts, as affected by the relation of mas-
ter and servant, may for convenienoe be treated
under the following heads:
(a) Master's liability to third persons for torts of servant.
(b) Master's liability to servant.
(c) Servant's liability to servant.
(d) Servant's liability to master.
(e) Servant's liability to third persons.
SAM£-.MA8T£H'8 LIABILITY TO THIBD PERSONS.
76. The master is liable to third persons for torts of his
servant only when the relationship of master and
servant exists, and liability attaches to the master
in any one or more of the five ways in which lia-
bility may attach to a defendant."'
Unless the relationship involved in a third person's attempt to
fasten liability on a defendant is that of master and servant* with
respect to the wrong complained of, then the case does not fall
within this category."^ As has been seen, liability for tort may in
general arise in one or more of five ways, — from personal commis-
sion, consent, relationship, instramentality, and estoppel. It may
assist in understanding a confused subject to apply this idea to
cases of master and servant. In the first place, the master may
assist the servant in performing a tortious act, and thus become, by
personal participation, a joint tort feasor with him. Little trouble
arises from so simple a case. Accurately speaking, here the master
is not liable for his servant's tort; all the wrong is his own. In
the second place, when a master authorizes his servant (or even an
independent contractor) **• to undertake a contract to do a tortious
»
lie Ante, c. 1.
117 Accordingly, the first matter subsequently cofnsidered is the eRtabllsh
xnent of relationship of master and senrant.
ii*tAnte, pp. 233, 234, "Independent Contractor." Exception where thing
contracted to be done is tortious.
240 LIABIUTT FOB TOBTS OOMMITTKD BY OB WITH 0THBB8. [Ch. S
thing, the maBter is liable. This daai of caKS presentB some qnefl-
tions not so easj of solution."* The lisbilitr whidi arises from
ratification of an nnanthorized wronj? of a servant rests on similar
principle&^'* In the third place, liability maj arise from relationship
of master and serrant and of master to plaintiif (a third person) in
an action against the master for the servant's torf ^ In the fourth
place, the instmmentality of the master may impose a doty on him,
for the violation of which by his servant in connection with snch in-
stmmentality the master may be held liable.^*' And, in the fifth
place, a master may so conduct his business and so profit by his
8ervant*s frand that the law will not allow him to deny responsibil-
ity for the employes wrong.
As a matterof fact, the four elements— consent, relationship, instm-
mentality, and estoppel — are, as cases arise in actual practice, very
much confused, as sources of liability, both in fact and in the theory
of law. Therefore, after consent proper has been considered, lia-
bility because of relationship (incidentally involvipg instrumentality)
will naturally come up for attention. Liability because of instru-
mentality proper is determined by princiDles of negligence and of
the duty to insure safety. Its consideration will therefore be post-
poned until those subjects come up in logical order as specific
wrongs.
77. The doctrine of respondeat saperior applies only
where the peculiar relationship here to be described
as that of master and servant is shown to eadst.^
It may be created expressly by agreement of par-
ties or inferred from all the circumstances of a
given case.
"• Post, p. 245.
!«• Ante, c. 1, "Ratification or Adoption."
121 Post, pp. 261-263.
i«« Post, pp. 264, 265.
128 The early law knew only "servants." "Agent" is a later branching oflf of
the same class. "Agent," as a commercial term, first appears in Marlowe and
Shakespeare. Whatever distinction there may t>e between these terms, the rela-
tionship of master and servant, principal and agent, employer and employ^.
Ch. 3] RELATIONSHIP. 241
The relationship must be established before the doctrine respond-
eat superior will be applied.' =* It has been seen that the employer
is not ordinarih' liable for the tort of an independent contractor or
of his servant, but as to the liability of the independent contractor
to third persons for the torts of his servant the same question aris-
es.'-* The relationship is based on the peculiar contract of the mas-
ter and servant. Mere contract of bailment does not create it*^*^
The contract is usually express; but the consent involved may be
also implied, ordinarily by the jury.*^^ The privity does not exist
and the like, may be safely treated here as Ideutical. 4 Harv. Law Rev.
301; 5 Harv. Law Rev. 6-9; 28 Am. Law Rev. 18; Munay. Diet. "Agent";
Innis, Torts, 58.
124 Thorpe V. New York Cent. & H. R. R. Co., H\ N. Y. 402; Dwlnelle v.
New York Cent. & Jf. R. R. Co., 120 N. Y. 117, 24 N. K. 31i); Pennsylvania
Co. V. Roy, 102 U. S. 451; Wood v. Cobb, 13 Allen (Mass.) 58; Kimball v.
Cusliman. 103 Mass. 11)4; Ward v. New Enjrland Fibre Co., 154 Mass. 419, 28
N. E. 299; Welsh v. Parrish, 148 Pa. St. 599, 24 AU. 86; Wilson v. Clark, 110
N. C. 3G4, 14 S. E. 002. But see Linnehan v. RoUins, 137 Mass. 123, Burd,
Lead. Gas. 68; Reagan v. Casey, 160 Mass. 374, 30 N. E. 58; T\'alker v. Han-
nibal & St J. R. Co. (Mo. Sup.) 26 S. W. 3(K). Ejection of a ti-i'spasser from ;i
car by a person carrying a lantern does not show relationship of master and
servant. Corcoran v. Concord & M. R. Co., 0 C. C. A. 231, 56 Fed. 1014. De-
fendant constructed a proper gate. A horse was put into adjoining Held. A
stranger oi)ened gate. Defendant not liable for Injury to horse escaping.
Peoria, etc., R. Co. v. Aten, 43 111. App. OS.
i2BThus, It has been held that a contractor is not liable for an injur>^
caused by bricks falling from a properly constructed wall, after its com-
pletion, through the intentional or negligent act of an employ^ not act in;;
within the scope of his employment, though proper scaffolding or guards:
to prevent brick falling have not been erected. Mayer v. Thompson-Hutchl^
son Bldg. Co. (Ala.) 16 South. (>20; Thorapson-Hutthison Bldg. Co. v. Mayer,.
Id.
n« Sproul V. Hemmiugway, 14 Pick. 1; Stevens v. Armstrong. 2 Seld. 435;
Kapson v. Curbltt. 9 Mees. & W. 710; Carter v. Berlin Mills, 58 N. H. 52;
Powles V. Hider. 6 El. & Bl. 207; Vennbles v. Smith. 2 Q. B. Div. 104, 270;
King V. Spurr, 8 Q. B. Dlv. 104; Schular v. Hudson River R. Co., 38 Barb.
65;^.
1-7 Cases sent to jury to determine question of relationship: Button v.
Chicago, M. & St. P. R. Co.. 87 Wis. 63. 57 N. W. 1110; Reens v. MaU &
Exp. Pub. Co.. 10 Misc. Rep. 122. 30 N. Y. Supp. 913; Sandlfer v. Lynn. 52
Mo. App. 553; Evansvllle & T. H. R. Co. v. Claspell (Ind. App.) 36 N. B. 297;
Reagan v. Casey, 160 Mass. 374. 36 N. E. 58; Consolidated Coal Co. v. Bruce
LAW OF TOUTS— 16
242 LIAIUUTY FOR TORTS COMMITTEH BY OR WITH OTIIKRS. [Cli. 3
where the relatiouship Iiuh been teriiiinatiNl by either party. Theii*-
fore, if a discharged employ<^ nialiciouHly niisphices a switch and
wrecks a train, the company may not be liable.**'
Ordinarily a servant may not make another person a servant of
liis master,'-^ but he may have aiitliority so to do expressly or by
implication from the nature of his position, the customary perform-
ance of his duty, or by ratification of his conduct by his master.*'®
Necessity may also justify 2fi)]>ointment of subagent.*'*
(111. Sup.) 37 X. E. t)12. Cases when (^otirtR held no relutionHhip of master and
servant: Dean v. Hallway Co.. iiS Ala. 5SG. 13 South. 4NU; Flyun v. Camp-
hell, IVA) Mass. 128. ;r> N. E. 453; Catlett v. Young, 143 111. 74, 32 X. K. 447;
Hardy v. Itaihvay Co. (X. .1.) 31 Atl. 2S1; Kansas City. M. & B. K. Co. v.
Phlllii>s. OS Ala. I'O. 13 South, a"; Tennesson* C.. I. T. R. Co. v. Hayes. 97 Ala,
2^n, 12 South. !»S; Sajfers v. Nu<-kolls, 3 Colo. App. 9r», 32 Pao. 1.S7; (;aines
v. Bard, r»7 Ark. Gin, 22 S. W. r»70; Jones v. Iron Co., Ul> Mich. SIS. .V» X. W.
<;S4; Toi]si«!:nant v. Iron Co.. IN; Mich. 87, Tm N. W. 681. Where railroad em-
ploy^ organize a voluntary Are company, and the niilroad couukuo' fur-
idshes apparatus for the use of the firemen, permits them to drill at re^lar
intervals during work hours without de<lucting time, and allows the chief, a
machinist, an hour each week to inspect the shops as a precatUion against
fire, it is the chiefs duty, in case of fire, to aid in extinguishing it. and in
so doing he acts as an enii)l<)yC». CoUins v. Cincinnati, X. O. & T. P. Ry.
Co. (Ky.) 18 S. W. 11.
128 East Tennessee, V. & G. R. Co. v. Kane (Oa.) IS S. K. IS.
129 Morgan v. Smith (Mass.) 3o X. E. 101; Catlett v. Young, 143 lU. 74, 32
X. E. 447; Dimmitt v. Railway Co., 40 Mo. App. Gl>3; Glynn v. Houston, 2
Man. & G. 337; Lucas v. Mason. L. II. 10 Exdi. 251.
laoKvansville & T. H. U. Co. v. Clasi)ell. S Ind. App. GS.-,, 30 X. E. 297.
Cf. Bowler v. O'Connell. ir»2 Mass. 319, :\S X. E. 4J>S (whether servant or
policeman); Brill v. Eddy. 115 Mo. r)lK5, 22 S. W. 4SS: Southern Pac. Co.
v. Hamilton. 4 C. C. A. 441, :A Fe<l. 4r.S; St. Louis, I. M. & S. Ry. Co.
V. Hackett, 5S Ark. 1581, 24 S. W. SSI ; Noi-folk & W. R. Co. v. Galliher. SI>
\
1 '.1 B« nuer v. Bryant, 71) Tex. 540, 15 S. W. 491. Cf. Sevier v. Birmingham.
S. & T. K. Co., 92 Ala. 25S, 9 S;mth. 405. Wliere a factory owner is rei»re-
scnted l>y an ovei-seer, who allows a card grinder to give orders to other
employes, or imposes on the card grinder work which he cannot do without
assistance, and at his call an employe leaves his ordinary work, and assists
lilm. sucli employe* and the owner stand in the relation of servant and mas-
ter while such assistance is lH»ing rendered. I'atnode v. Warren Cotton Mills,
157 Mass. 2S;5. :i2 X. E. 101. 14 Am. & Eng. Enc. Law, SIO. note 3; Mechem.
Ag. § 749: Wood, Mast. iK: Scrv. ;iiM». As to whore contract of servkv ends,
and as to its continuity, see 32 Cent. Law .1. ;j:>7.
Ch. 3] KELATIONSHIP. 243
WTiile in many cases there may be no doubt that the relationship
of master and servant exists, it is often no easy matter to determine
who may be the proper ]K»i*son to be charged with liability as master.
In many cases of this kind the master is to be determined by in-
spection of contract. Thus, where one sold and delivered fireworks,
and sent a man to assist in their exhibition, the purchasers were
held, under construction of the contract, not to have been the master
of such person, and therefore not liable for the explosion resulting;
from such person's ne^lij^ence. *The master is the person in whose
business he is enp:ajred at the time and who has the right to direct
and control his conduct.-'^'*
Va. («0, 1« S. E. 1)35; DickBon v. Waldron, 135 Iiid. 507, 34 N. B. TiOG, and 35
X. E. 1; TolcheRter Beach Imp. Co. v. Steinineler, 72 Md, 313, 20 Atl. 188;
Golden v. Xewbiand, 52 Iowa, 59, 2 N. W. 537; Jewell v. Grand Trunk Ry.
Co., 55 K. II. 84: Ilsiluptzok v. Great Northern U. Co., 55 Mluu. 446, 57 N. W.
144; CumborlaiKl Val. U. Co. v. Myers, 55 Pa. St. 2KS; Wkhtrecht v. Faanacht,
17 La. Ann. H'Ai; MtDaniel v. Uallway Co., 90 Ala. 04, 8 South. 41. For
complaint failing to show volunteer to bi? servant, see Hart v. Uallway Co., 80
Wis. 4X3, 57 X. TV. 91: and, generally, see Simons v. Monier, 29 Barb. 419;
Suydaui v: Moore, 8 Barb. 358; Mayor v. Bailey, 2 Denio, 433; Randleson v.
Murray, 8 Adol. & E. 109; Wheatly v. I»atrlck. 2 Moos. & W. (K>0. But in
certain cases a principal or an agent may not be liable for torts of subageut;
and so one superintending the construction of a building, as agent of the
contractor, is ecpiallj' liable with his principal for an injury to a third pereon.
resulting from a failure to erect proper scafTolding to prevent the fall of
bricks, or from the negligent constniction of the wall. Mayer v. Thompson-
Hutchison Bldg. Co. (Ala.) 10 South. ()2U; Thompson-Hutchison Bldg. Co.
V. ]klayer. Id.
132 Wyllie V. I^almer, 137 X. Y. 248, 33 N. E. 381. Compare Colvin v. Pen-
body, 155 Mass. 104. 29 X. E. 59. Compare Knight v. Fox, 5 Exch. 225, with
Blake r. Thirst, 2 Hurl. & C. 20. That a packing company designates, in a
contract to manufacture and ship goods, the particular person whom it intends
I>utting in clinige, does not relieve it from liability for the neglect or iucomiK'
tency of such person, on the theory that he has thus become the agent of both
parties. Pnige v. Roeding, m Cal. .'{88, 31 Tac. 204. Where plaintiff was in-
jured l>y the negligence of a truck driver In the employment of defendant, but
who was on that day sening another company under a contract which de-
fondant had made with the latter to furnish it daily with a horse, truck, and
driver, defendant, and not the other company, is liable for the injury. Quina
V. Complete Electric Const. Co., 40 Fed. 506. Where the owner of a building,
at the recpiest of the contractor who was at work thert»on, furnished a man
to run the elevator for the use of the contractor, the elevator man is still the
\
244 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Cli. 3
In the case of common carrier where there are many connecting
lines and many combinations and agreements between them, it is
a matter of great difficulty to determine who are the proper parties
to sue. This subject will be subsequently considered under the gen-
eral subject of '^Common Carriers." .
A similar question arises as between a railroad company and a
sleeping-car company. It seems that the porter is the servant of
the railroad company sufficiently to attach liability to it for hi&
torts.^'"
A messenger sent by a District Telegraph Company in response
to a call from one of its boxes is the agent of the company, and the
company is liable where the messenger carelessly loses a package
which he was called to carry.^'*
A servant may remain the general servant of his original master
and still be the servant of the person to whom he may be lent for
imrticular employment.^"*
servant of the owner, and he Is therefore liable for iu juries to a seivant of the
contractor caused by the negligence of the elevator man. Higglns v. W. U.
Tel. Co (Super. N. Y.) 28 N. Y. Supp. 676.
133 Dwinelle v. New York Cent. & H. R. R. Co., 120 N. Y. 117, 24 N. E. ail>:
PuUman Talace Car Co. v. Mathews, 74 Tex. 054, 12 S. W. 744; Pullman Palace
Car Co. V. Gavin, 93 Tenn. 53, 23 S. W. 70. But see Illinois Cent. R. Co. v.
Handy, 63 Miss. 609. But see Lemon v. Pullman Palace Car Co., 7)2 Fed. 262.
Express messenger is not agent of raUroad company. Ijouisville, N. O.
& T. Ry. Co. V. Douglass, 69 Miss. 723, 11 South. 933. United States postal
train agents are not servants of railroad company. Poling v. Railway Co., 3H
W. Va. 645, 18 S. E. 782; may be entitled to rights of passenger, Mellor v,
Missouri Pac. Ry. Co., 14 S. W. 758; Id., 105 Mo. 455, 16 S. W. 849; Gulf, C. &
S. F. Ry. Co. V. Wilson, 79 Tex. 371, 15 S. W. 280.
184 Sanford v. American Dlst. Tel. Co. (City Ct. N. Y.) 27 N. Y. Supp. 142,
Gateman hired by several roads, Brow v. Boston & A. R. Co.. 157 Mass. 399,
32 N. E. 362; landlord and tenant, or master and servant, Doyle v. Union Pao,
Ry. Co., 147 U. S. 413, 13 Sup. Ct. 333.
186 Donovan v. Lalng [1893] 1 Q. B. 629; ante, p. 228. "Independent Con-
tractor." A railroad company is not liable for negligence in the operation of
an engine which, at the time of the accident, was rented to and under the
control of another company. Byrne v. Kansas City, Ft. S. & M. R. Co., 9 C,
C. A. 666, 61 Fed. 605.
Ch. 3] RELATIONSHIP. ' 245
78. The master is liable for the tort of his servant because
of actual consent —
(a) When he has authorized its commission in the first
instance or made it his o'wn by adoption.
(b) When he has commanded the doing of a thing -which
necessarily or almost unavoidably restilts in dam-
age to third persons.
Torts Authoj-ized or Adopted.
The master is clearly liable for all torts which he commanded in
the first instance, or which, having been done for his benefit, he has
subsequently assented to. Thus, if a master directs his servant to
commit a trespass, maintain a nuisance, perpetrate a fraud, or con-
vert property of another to his own use, the master is certainly lia-
ble.*'* Such results are the direct outgrowth of the deliberate in-
tention of the master, and he is as much to be charged with the
responsibility as if he had performed the act in person. As to cases
of this kind the maxim of "qui facit per alium facit per se,-' — that
is, the doctrine of id(»ntification of master and servant, — furnishes
a sufficient reason. The same reanoning applies to the ratification
bv the master even of a servant's malicious conduct.* ^^
The master alone may be liable, or he and his servant may be joint
tort feasors. If a man, knowing his sheep to have rot, sends his
son to market to sell them, fraudulently withholding from him the
fact that they are diseased, and the son sells them on the represen-
tation that they are sound, the father is liable for his own fraud,* ^*
i3« Southenie v. Howe, 2 Uolle, 5-2G. And see State v. Smith, 78 Me. 2(»0,
4 Atl. 412; Ketchttin v. Newman (N. Y. App.; 18SM) 36 N. E. 197; Carman v.
Railway Co., 4 Ohio St. 31H). If a landlord build a chimnej', which, by the
act of a tenant, becomes a nuisance, the landlord Is not liable. Rich v. Bas-
terfield. 4 C. B. 78:i. But if the use is contemplated and authorized by the
landlord, he, as well as the tenant, is the author of the continuance of the
nuisance. Harris v. .Tamos, 45 L. J. Q. B. 545; Vogel t. McAuliffe (R. I.) 31
Atl. 1 (to destroy furnace).
187 International & G. N. Ry. Co. v. MUler (Tox. Civ. App.) 28 S. W. 233.
188 Ludgater v. Love. 44 Law T. G94; Grifflug v. Dillor, 06 Hmi, G33, 21 N.
y. Supp. 407; National Exch. Co. v. Drew, 2 Macq. II. L. Cas. 103-145, per
Lord St. I^eonards.
246 LIABILITY FOR TORTS COMMITTED I5Y OH WITH OTHERS. [Ch. 3
but the servant may also be liable.^'* Tlie ma8ter who commands
a trespass and the servant who commits it; the master wlio author-
izes a false representation and the servant who makes it ; and, gen-
erally, the master who authorizes a wrong and the servant who does
the wrong, — ^are responsible as joint tort feasors.^**
No amount of care will exonerate parties who authorize a wrong-
ful act, if it result in damage.**^ As has been previously shown,
one who orders the doing of an unlawful act, which produces injury,
is liable, whether it has been done by his own servant or by a con-
tractor or by a contractor's servant.^ *^ "^'Lawful authority," it is
said, "is to receive a strict interpretation, and an unlawful authority
a wide and extended interpretation."^*^ Thus, if a person ask an
editor to "show another up," and the editor of the newspaper does,
so in gross and unauthorized terms, the person so inciting the editor
might be punishable for criminal libel, but not civilly responsible in
damages. But if one request another to publish defamatory mat-
ter, and the latter publishes the matter, adhering to the sense and
substance, but not to the language, the man making the request is
liable to an action as publisher.^** Bat one who requests a deputy
sheriiY to execute a writ is not liable for the latter's wanton or vio-
lent trespass in executing it, unless he orders or encourages the law-
lessness.^*' In such cases, it is apparent that the very command or
request establishes the relationship of master and servant.
Injurious Conduct Commanded,
Where the master has directed the servant to do something whi(*h
may not be in itself a cause of injury, but which by its very nature
cannot be done without necessarily or almost necessarily causiuj;
130 Lamm v. Port Deposit Homestead Aas^n, 41) Md. 2:i:i, 240; DuvsUl v.
Peach, 1 GUI, 172; Lamboni v. Watson, 6 Har. & J. 252.
1*0 Bates v. PlUlng, 6 Barn. & C. 38; Peck v. Cooper, 112 111. 192; Lamm v.
Port Deposit Homestead Ass*n, 49 Md. 233; Blaen Avon Coal Co. v. McCul-
loh, 59 Md. 403; Moore v. Appleton, 26 Ala. C»;«; Miller v. Staples, 3 Colo.
App. 93, 32 Pac. 81.
1*1 Congreve v. Smith, 18 N. Y. 79.
1*2 Houston & G. N. R. Co. v. Men dor, 50 "Tex. 77; ante, pp. 233, 234, "Inde-
pendent Contractor"; Pig. Toit«. S JM; Shear. & R. Ne^?. § 84.
I*-! Bae. Max. § l(i.
1** Parkes v. Prescott, L. R. 4 Exoh. 169-18:^
1*5 Sutherland v. hijralls, (« Mich. <52(\ 30 X. W. 342.
Ch. .S] REI.ATlO.N.SHir. \ 247
damage to others, the mauter i8 liable. Tims, in a celebrated case,
the right of way wa8 disputed between adjacent occupieiw, and the
one who resiwtt^d the claim ordered a laborer to lav down rubbish
to obstruct the way, but not so as to touch the other's wall. Tlie
laborer executed the order as nearlv as he could, and laid the rub-
bish some distance from the wall, but it soon "shingled down," and
ran against the wall. For this the employer was held to answer in
trespass, not in case. The master in such case could no more disclaim
responsibility for the act of his servant than if he had done the thing
himself. In cases of this kind, it is often difficult to determine
whether the master should be held responsible because of the com-
mand, or because the act was committed in course of the employ-
ment; but it would seem that trespass lies as for the master's direct,
not case for his indirect, act.^**
79. According to the early Gtormanic theory, the master
was absolutely liable for the crimes and torts of
his servants.
"The primitive Germanic idea was that the master was to be held
liable absolutely for harm done by his slaves or servants. ♦ ♦ ♦
In later (iermanic times, the master could exonerate himself by sur-
rendering the offending person and at the same time taking an ex-
culpatory oath, 'se non conscium esse, quod pura sit conscientia sua.'
* * • On English soil, in the early Anglo-Xornmn period, this
idea of responsibility appears in the shape of exoneration for deeds
of the servant not commanded nor consented to; had hardly begun
to be applied to responsibility in what we now term its civil aspect;
and, while common in penal matters, was by no nutans fixed in its
scope." **^
i<« Gregory v. IMpcr. J) Barn. & C. 591. And see Sliarrod v. Railway Co.,
4 Exch. 5»1; Botts v. T>v Vitrc, 3 Ch. App. 429; Drew v. Pt'or, m Pa. St.
234; W. U. Tel. Co. v. Satterfteld, 34 111. App. :W(i. (;oraou v. Uolt, 4 Exch.
305; Smith v. Lawrence, 2 Man. & R. 1; SaniuieU v. Wright, 5 Esp. 202;
Dean v. Branthwaite. Id. 3(i; Morley v. Gaisford, 2 11. Bl. 442; Seymour
v. Greenwood, 7 Hurl. & N. 355.
147 Mr. J. H. AVigmore, in 7 Harr. Law Rev. 383. In Nos. 0, 7, and 8 of 7
llarv. IjRW Rev. will be found Mr. Wigmore'8 article, of exceptional value
and ability, on **Responsil)ility for Tortious Acts.'* From tills article a large
1
t, '
80. Tlie English ooorto at an early date TBOogiiiized the
doctrine of paiticalar command as a test of the
maater^s Uabilitsr.
Kut in En^l^iiid. ev*'n from a verv esirlr dai«\ ir was reoijrniz*'^!
that f'oriiriiiind iL e. before the deedi or eoiis#'iii li. t-. li**for»* or afu*r
the ih^nh waff in »M>iiie vague waj the condition <»f the uiasi»*r's crim-
inal liahilitr for the artM of hi.< serrant. This principle was* extend-
ed to the civil li;ibilitv. and confined the master's liability to cas«*s
Iiert of what follows as to the earij tests of Uability of the master ts taken.
^Die i'tLvXy hiHtor7 of reMp^jusibility of the master Ss to lie fuuml in Tolome 0
of Harvanl Law Berfew. At pa^e 310 31r. Wi^more recognizes bis obliga-
don to Prv#f. I>r. Helnricb Bmnner's article in the Prr^Hn dings of the Royal
Prussian Academy of Sciences irolame 35: Juiy 10, ISiok Teber absichts-
hmn Missethat im Aitdeutschen Strafrecht." It is c-ommon, and« perliaps.
natural, to think of tlils criterion of llabiUty as being a part of the crudity
of legal conceptions current at the time; as being kin, for example, to wager
*}t battle as a means of judicial determination of rights and wrongs. This
f^plnfoii wouid lead to a recognition of the changes made as evolution in the
law. As has been seen, there is a marked tendency throughout the general
scope of the law of torts to regard some kinds of culpability as the basis of
the law of torts, and to abandon the old standards of absolute liabilities with-
out regard to any mental element. It is suggested, however, tliat this view
of the law's development may not be entirely true. It may be that the vigor-
ous Anglo-Saxon instinct, notwithstanding some manifest absurdities, re-
garded wrong done from the point of view of the sufferer, and wisely dis-
<'nrdcd many of the subtleties which have l)een subsequently introduced. The
u<;tual development of law was on the lines of the Lex Aquilla. But it
must be remembered that there have been at least three inftisions of the civil
law Into the common law,— the first, when Caesar invaded Britain; the sec-
ond, at th(* lieginniug of the Norman conquest; and the third, after the dfs-
rovory of tlie treatise of (ialus. While thus the light of the civil law was
neither constant nor pure, the darkness has increased by the barren subtle-
ties of the scholastics of the Middle Ages. The effect of the philo ophy of
the Nominalists will be plainly apparent in the subsequent discussion, espe-
cially of the liability of the sen-ant to thli'd persons as to misfeasance, mai-
fouKuuco, and nonfcuHnncc. As the practical injustice in administration, and
alnioKt hopdcHH coufuHion of standards >vhich the consequent refined and un-
natural distinctions have produced, have forced themselves upon the observa-
tion of the people and of the Jmrists, there has been a reaction towards the
earlier law. In the United States, this reaction has manifested itself in a
vast (luantlty of legislation with respwH to the rights of labor, the control of
explusives, fire, ct sini. There has been corresponding legislation in Eng-
Ch. 3] KELATioNsmr. 24^^
where the command or conwut was particular. Thus, according to
Bacon (early in the seventeenth century), "in committing of lawful
authority to another a party may limit it as strictly as it pleasetli
him; and if the i)arty authorized do transgress his authority, though
it be but in rircuiustance expressed, yet it sliall be void in the whole
act" ^** This period is treated as beginning with *'Edward I., time
1300, circa," ^** This carried the courts from the one extreme of
universal responsibility for the conduct of servants to the other, of
responsibility only when tlie conduct of the servant had been ex-
plicitly commanded by the master. Logically, the reason assigned
for this test of the liability of the master was identification. The
master was liable l)ecause the act of tlie servant was clearly his
act.^^^ *'Qui facit per alium facit per se." The doctrine, however,
land. The crystallization of wandering cases of absolute liability, by Ry-
lands y. Fletcher, Into what Mr. Pollock would call '^breaches of duty to
insure safety," is another illustration. Perhaps the most marked case of re-
turn to the primitive standard is to be found in the very late German system
V'f Insuranoe a;;ainst damage.
i*s Bac. Max. 16. Similarly, the master was liable for the act of his serv-
ant, in accordance with the master's command, for handling; ungovernable
horses. Michael v. Alestree (1677) 2 Lev." 172. In KkSo. in Kingston v. Bootli.
Skin. 228, It was held that "if I command my servant to do what is lawful,
and he misbehave himself, or do more, I shall not unswor for my servant,
but my servant for himself, for that it was his own act. Otherwise, it was
In the power of every servant to subject his master to what actions or penal-
ties he pleased. * * * If 1 command my servant to do a lawful act, as
in this case, to pull down a little woodeu house (wherein the plaintiff was
* * *), and bid them take care they hurt not the plahitiiT, if in this doing
my servants wound the plaintiff, in trespass of assault and wounding brought
against me, I may plead not guilty, and give this in evidence, for that I wa^
not guilty of the wounding, and pulUng down the house was a lawful act."
The law on this point will be found set forth with jrreat clearness and ability
in the series of articles on **Kespon8ibility for Tortious Acts," by John H. Wig-
more, in the Harvard Law Review for February. March, and April, 1S04.
149 Mr. Wigmore, in 7 Harv. Law Rev. l\s:\, o1tlu«, inter alia. Y. B. 30, 31
Edw. L 532 (Ron's Ed.); Beaulieu v. Fin^am. Y. B. 2 Hen. IV p. 18, pi. 0;
9 Hen. VI. p. 53, pi. 37; 21 Hen. VIL p. 22, pi. 21; -^ Doct. & Stud. (Muchall's
Ed.) c. 42, p. 233; Seaman v. Browning, 4 Leon. 123; Waltlmm v. Mulgar,
Moore, 776; Southern v. How, 2 Kolle, 5, 20; SheUey v. Burr, 1 Rolle, Abr.
2, pi. 7; Noy, Max. c. 44; Crenier v. Humbcrton, 2 Keb. .'352.
i»o Justice Holmes, 4 Harv. Law Rev. 345-364; 5 Harv. Law Rev. 2.3.
-i'Vj MAhlLl.Y F«»ii TORT- i'llMIITi::i BV OB WITH uTHEBS. [Ch. 3-
lui^ oot f' II firmly disap[peartf<L A s^fiecific cununand has in modern
tirn^-H bf-^n held to exclnde liabilitr for acts done in pursuance of it.
hut not ini'indf^l within it. Tlin^. where a servant was directed to
drive liittle out of a i-vrtain fic^ld. and he dmve thmn elsewhere than
out of tliat tif'ld. and one of them died, the master was held not lia-
ble il8*;2i.*"
81. The test of liability was extended so as to inelade lia-
bility for conduct in pursuance of general authority
expressed or implied.
Tlie next t»*st pro|K>sed was iiniiiuand, not only where the rouduct
of the wfrvant was particularly or specifi«*a11y authorized, but also
wfien the command was implied from <;eueral authority. The pe-
riod during which this reaetion from the severe limitation of th<>^
imrticular command test arose, and liability for implied command
fame to lie added, may W siiid to have (H>mnienced during Lord
Holt's time, about 1700.*** Tlius, in Armory v. Delamirie,'-^ a chim-
ney swee[ier's boy handed to an appi-entice. to be weighed, a jewel
which he had found. The apprentice kept the stone. And Pratt^
(\ J., held that the action well' lay against the master, who gave
i'liHlit to his apjuentice, and is answerable for his neglect. Black-
stone recognizes command as a test. "As for those things which the
wrvant may do on behalf of his master, they seem all to proceed
upon this principle, that the master is answerable for the acts of
his servant if done by his command, either expressly given or im-
plied,— 'nam qui facit per alium facit per st\' Therefore, if a serv-
ant commit a trespass by the command or en<*o!iragement of his
tuaster, th(» master shall l>e guilty of it. * * * In the same man-
ner, howevcM', what a servant is |>ermitted to do in the usual course
of his businens is ecjuivalent to a general command." *"*
»•'» Oxford v. I'etiT (isr,2) 158 111. 4:54. Ami soo Sa>;ors v. Nuckolls, 3 Colo.
A pp. ?K"», ^'2 Pac. 1H7; IMckeiis v. Diecker, 21 Ohio St. 212; Lyons v. .Alartin,
8 Adol. & K. 512; Bollngbrokc v. Swindon, L. II. 9 C. P. .175.
162 7 Han*, l^w Uov. 383, citing Boson v Saudford, 2 Salk. 440, 3 Mod. 321;
TulKjrvlUe v. Stamp, Skin. «81; Mhldleton v. Fowler, 1 Salk. 282; Jones v.
Hart, 2 Salk. 441; Bom*lu»i- v. Laws<m. Ia^c t. Hanhv. 85. 104.
^''•i 1 Strange. 505.
134 1 Bl. Comm. 420; Hern v. Nichols, 1 Salk. 280; .Tones v. Hart, 2 Salk.
Ch. 3] RELATIONSHIP. 251
The terminolofjj and teaching of the great commentator passed into
general use and thought. It was employed, and assigned both the
reason and the limit of the master's liability, long after the courts
had passed beyond the doctrine thus enunciated. Its effect is still
to be observed in the confusion at present existing in the cases on
the subject.'-^' The fiction of identification, "that master and
servant are feigned to be all one person," *^® was retained "as a lazy
and easy reason put forth to sanction and support a rule of whose
practical expediency the courts were perfectly satisfied.^ *^ Re-
spondeat superior was also used to account for the liability." *** Its
use, however, throws no light on the subject. It is a dogmatic
statement, not an explanation.*****
82. More extended liability on the part of the master is
now recognized. But courts are not in harmony
whether the limit of his responsibility is deter-
mined—
(a) By the scope of servant's authority; or
(b) By the course of his employment.
83. SCOPE OF AUTHOBITT— The master is liable for the
conduct of his servant within the scope of his au-
thority—
(a) When liability would attach under test of particular
or general command.'^
441; Boucher v. LawBon, I^ee t Hardw. 86-llM. And »ee Laugher v. Pointer,
5 Bam. & C. 547-55:5; Williams v. Jones, 3 II. & C. <U)2-009.
155 *«A principal is not civilly liable for tho act of his agent, unless the
agent's authority be by the agent duly pureued." Parkes v. Prescott (180.))
L. R. 4 Exch. 169-182. And see Mali v. Lord. :VJ N. Y. 381; Chambers v.
Trust Co., 1 Dlsn. (Ohio) 327.
15C Byington v. Simpson, 134 Mass. 170.
16T 7 Harv. Law Uev. 7{)J).
158 Ellis V. Turner, 8 Term U. 581. "Kospondeat superior" is said to be a
piece of local English law. 21) Am. Ijiw Uev. 209. It arose, however, from
the Konmn law. Holmes, Com. Law, note at page 230. This objectitm, more-
over, applies equally to the whole system of £]nglish real-estate law. 29 Am.
T-iiw Rev. 229.
15a Pol. Torts, §07.
1'*^ See ante, pp. 248-251 et seq.
252 LIABILITY Foil TORTS COMMITTED BY OR WITH OTHERS. [Cll. 3
(b) When fhe conduct was for the master's purpose or
benefit, and not for the servant's private motives,
whether it was an excessive or mistaken execution
of authority or a direct violation of the master's
command.
Includes Command Test.
The third tost proposed was that the master was liable for the
act of his servant for conduct within the scope of his authority.
Early in the nineteenth century this was adopted to cover cases of
liability recoj^nized by courts, but not lojjically covered or accounted
for by the doctrine of command. The master remained liable in all
cases in which he would have b(*en held responsible under the par-
ticular command test ^•^ and under the general (i. e. expressed or im-
plied) command test.*'* Indeed, one of the commonest cljis.^es of cases
is of the latter description, — neglijjence in the performance of admit-
ted duty. Thus, one who undertakes the collection of a claim is
liable for the negligence of the attorney employed by him, through
whose fault the claim is lost.^'*
Includes Excemve or Mlddken Execution of Authority,
But, in addition, the master also became responsible for injuries
inflicted bv his servants in cases not thus attributable to him, but
still within the scope of his servant's authority. The master be-
came liable for excessive or mistaken execution of authority.***
Thus, if the master authorized his servant to use force, he was held
liable for the violence or misjudgment of his servant in the exercise
of force, because he authorized its employment in the first in-
stance.*®'
103 Sharrod v. Railway Co., 4 Exch. 580; Gordon v. Holt, Id. 305.
104 Goodman v. Konnell, 1 Moore & P. 241; Patten v. Ilea, 2 0. B. (N. S.)
GOG; Wright v. AVllcox. 10 Weiid. 343.
106 Siner v. Stearne, 155 Pa. St G2, 25 Atl. GG; Bradstreet v. Eveiuon, 78
Pa. St. 124; Morgan v. Tener, K\ Pa. St. 205; post, p. D15, ••Negligence."
loti Paley, Prln. & Ag. ISll; Nicliolsou v. Mounscy, 15 Ea.st, 384; Sleath v.
Wilson (1839) 9 Car. & P. 007; Story, Ag. 181^.); Smith, Mast. & Serv. 1852:
Cornfoot v. Fowke (1840) 6 Moes. & W. 358; Colemau v. Uichos, IC C. B.
104; Boliugbroke v. Board (1874) L. R. 9 C. P. 575; Malcr v..UaiHlolph, 33
Kan. 340, 0 Pac. G25; Biird, I^ad. Cas. 71.
107 Rounds V. Railway Co., Gi N. I. 129; Cohen v. Railway Co., (K) N. Y.
Ch. .'»] RELATIONSHIP. 25^
Includes Imbility for Pm-hidden Conduct.
In the same way, implied authority may be strained to justify the
use of all means necessary and designed to accomplish the masters
purpose, however improper, and even unlawful. Thus a driver may
convert hay to supply his master's horses so as to enable him to
complete his journey, where none was provided.* Where, how-
ever, the act of the servant is willful, and forbidden by the master,
it can hardly be said that the command test is sufficient to account
for the master's liability. Under the command-test theory the mas-
ter was not held responsible for such acts. ' Thus, in McManus v.
Crickettt it was held that the master was not liable in trespass
ITO; Feck V. Railway Co., 70 N. Y. 587; Hewett v. Swift, 3 Allen, 4t:J)'r
Moore v. Railway Co., 4 Gray, 465; Levi v. Brooks, 121 Mass. 501; Fick v.
Railway Co., 68 Wis. 460, 32 N. W. 527; EvansvUle & T. H. Ry. Co. v. McKee,
09 Ind. 519; Ft. Worth & N. O. Ry. Co. v. Smith (Tex. Civ. App.) 25 S. W.
1032; Baxter v. Railway Co., 87 Iowa, 488, 54 N. W. 350; Oakland City A. &
I. Soc. V. Bingham, 4 Ind. App. 545, 31 N. E. 383; Rogahn v. Foundry Co., 79
Wis. 573, 48 X. W. 660; ^iloore v. Metropolitan Ry. Co., L. R. 8 Q. B. 36; Sey-
mour V. Greenwood (1861) 7 Hurl. & N. 355; Poulton v. Railway Co., L. R.
2 Q. B. 534; Bollngbroke v. Board, L. R. 9 C. P. 575; Cosgrove v. Ogden, 49
N. Y. 2.^>5; Chicago & N. W. Ry. Co. v. Bayfield, 87 Mich. 206; Chicago City
Ry. Co. V. McMahon, 103 111. 485.
♦ rotullnl V. Sauuders, 37 Minn. 517, 35 N. W. 379; Walker v. Johnson,
28 Miuu. 147, 9 N. W. 632; Levi v. Brooks, 121 Mass. 501; Voegell v. Pickle
*Co., 40 Mo. App. 613; Farmers* & Medianlcs' Bank v. Butchers* & Drovers'
Bank, 16 N. Y. 125-133; People v. Roby, 52 Mich. 577, 18 N. W. 365; Pitta-
burgh, C. & St L. Ry. Co. V. Kirk, 102 Ind. 309, 1 N. E. 849; Quinn v. Power,
87 N. Y. 535. But see Sagera v. Nuckolls, 3 Colo. App. 95, 32 Pac. 187; Cook
V. llUnols Cent R. Co., 30 Iowa, 202; Staples v. Schmid (R. I.) 26 Atl. 193-
196; Crocker v. Railway Co., 24 Conn. 249; Thames Steauiboat Co. v. Housa-
tonlc R. Co., Id. 40; Lyons v. Martin, 8 Adol. & E. 512; Poulton v. Railroad
Co., L. R. 2 Q. B. 534; Knight v. Luce, 116 Mass. 586. The master is clvlUy
liable If his bartender, in violation of Instructions and law, sell liquors to
excessive diomkards. George v. Gobey, 128 Mass. 280; Worley v. Spurgeou,
38 Iowa, 465; -Peterson v. Knoble, 35 Wis. 80; Smith v. Reynolds, 8 Hun
(N. Y.) 128; Kreiter v. Nichols, 28 Mich. 406; Kchrig v. Peters, 41 Mich. 475,
2 N. W. 801. LiabiUty of master for exaction of usury: Payne v. Newcomb,
100 111. 611; Rogers v. Buckingham, 33 Conn. 81; Phllo v. Butterfleld, 3 Neb.
256; Cheney v. White, 5 Neb. 261; Cheney v. WoodruflP. 6 Neb. 151; Scottish
M. & L. Inv. Co. V. McBroom (N. M.) 30 Pac. 859.
t East 107 (1800). And see Croft v. Alison, 4 Barn. & Aid. 500; Middle-
ton V. Fowler, 1 Salk. L'82.
\
^ 9
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' 1 ;->-•;-- ■:•' '^ ' • .•♦-•i - tz.- .-. i" i*^. -T - :--^'>ii was. did
frvtt L<r:"4t**r *- •*- *l: w.-i •ii**- iz.:--*> n -f iz.'-rl:Lr hiss eoeniv?"
W : --• *:-*- ••-•--ri.- •: i ma> '-:.-— i •^ .•>»'' i^* a--i 'r "i^i wanton and
?*-.*.! ^•. i:-^':-T L '•- *»-»-i f« r •:.— i- .^--r"* *^c. ~:. 15i* wh»-rf* ih*'
oL^ I*-* L:» •ri'-d *o a-v'L-rT, wh.-*-^ «»-rT^i*. * ;. •-. •> '— ^^rit-^> in li:»ht-
;i^ L;% pl;»-. '--«:;«^ •!•- <,-=-d :•> b-^m d* »Ti- •. - - .s^^t-r mas ni»t held
Th*f in*r'«'j'i< t:. u of iL^ ii*- ^T»-r'» U-i.»-n- ;is tI •- it-st of liability
iiiii*'i\iitt'4 !};:• j-'r:«-i.-'^ I5i: in K.««l-rii ':• -•-> ii* use haa been
^rf'-iih ♦-iT.'rj<|.-«l Id the «-;<^-> ;i^il.»-riug t^ tht- •*<i»|*' of aathority
J^*:i2 L, J. Ki*:,. :u. 1 H:r: & C. "•-".: Br:--. M :-:.-iI Riukin;; Co. t.
/ :.:in,^*ffffl K'/r^-M Kr. **o. Ihxt. In <^- B. l»iT. 714. lii B;irk»T t. Manchester
IS; , 'V. I^ B. ^ C P. 14^ ?!,»- ml«^ wa.* la-.il »J«.i*si: -WLMn a ftenrant is act-
if ^ vift!,.n lb*' %d*,\»*' of Ii:» aiiT).i»rity, ari«I iu ««> n« "ii.:: h^ «l»»-s s*»iiit.'thin|; n«*K-
li;f«'irl> or wrori;rf":lly. th** #*i:.i»i'»yt-r is li:iM»*. ••v»»n ;li«.iizL the act done be
Wif \*'ry r*'\*'r**' of fl»at wLmIi ihe servant was «lir»«i-i«««l to do. The master
\% uoi UiilfU' t%li«'n' !lj<* a^-t \^ fh-arly onT'-i«;»' tb«» ^•''tiw of aii'h«»riiT.'~ Bnt stv
W'ulUtr V, >Vint»i K.ixt^'ni U.v. <'«•-• I- 12 ♦'» <'- I*- •►*»: INMilr.m y. T^mdon & S.
W. Hy. To., U n, J ii. B. .VM: «;oflf t. <;n-:it N-rM -ni Uy. Co.. au L. J.
tj. B. I4H; B'^ljitfhrokH t. Boiinl. I-. B. S» C P. oTr.; AHt-u v. Loudon & S.
W, B>. <'o.. L. B. 0 <^. B. <v»: Edwsinb* v. I^»iidoii & N. W. By. To.. L. B.
r# r. p, 44.V T\n» d'K'triijo r»f Ku^linh <*as4»s seems lo Ik». in brief, that the
Mi;i-t<':' Im lI;iI>U» for the «'Xi»r»»ss aiithdtity for his servant to do \vnm;r. or fur
\t ,]i\U't\ ai'thorlty to titk<» all 8t<»i>s m-^-^'ssary to pn»t«it proiK»rty c*oiiiiuitte<1
to hi* Krvniit'H ran*, and on the pn»sium'd I'onimand to do the work properlj*
and witlont m'>:Iltf<*iuM*. but the toit. in all easi*s. must rtow out of the scoih»
of aiMliorlty. Th<» iM'iiefJt of the master and the srnant's pnriHjse, are im-
portant ^'hMiH'ntK in (h'termhiinK this. Miller v. Great Northern B^*. Co., «>(i
h. B. :m.
!•• WUIIuuw V. JomH (lS04j V, Hurl. & C. i"*«.
JToJn TnbervUle v. ?<tamp. 1 Ixl. Baym. 2i'A (at the close of the seven-
teetith cfniuryj, It wuh Huld that *'it shall be iuiended that the servant had
Ch. 3] RELATIONSHIP. 255
test tlu* duty which the master owe^ to third parties because of his
relationship to them was not given controlling force. Thus it has
been held that a cashier can rob a bank and the bank be not held
liable for his theft.*^^ Nor has the dutv which the use of instru-
mentalities dangerous in themselves, or easily becoming dangerous,
imposes, been allowed the effect it is commonly and proi)erly given.
Thus, if one be crossing a stre(»t-car track and the driver curses him,
and says, **I will smash you anyhow," and then lets go the brakes
whereby such person is damaged, the driver's employer is not to
be held liable, if the act was willful on the part of the servant. The
element of willfulness makes it the servant's personal tort.*^^
authority from his ninster, it being for his master's beuetit." And see Mc-
Manus v. Crickett, supra.
171 Foster v. Essex Bank, 17 Mass. 47l)-r»10. And see Isaacs y. Railroad
<'o., 47 N. Y. 122; Jackson v. Uailroad Co., Id. 274, and see Hoar, J., in Howe
V. Xewmarch, 12 Allen, 49-57. The owners of a vessel are not liable, even
under the maritime law. for a willful and malicious assault by the captain
of the vessel on a seaman who refuses to obey a command on the plea of
sickness, since, in committing the assault, he exceeds his autliorlty. His
i*omnuind docs not extend over the persons of the seamen, beyond the in-
fliction of th(» usual and necessary puniHhnu»nt in cwki of disobcnlience or
infraction of rules. Maynard, Finch, and O'Brien, J.J., dissenting. Gabriel-
son V. Waydell (Super. N. Y.) 14 X. Y. Supp. 125, and 15 N. Y. Supp. 976,
reversed. Id., 135 X. Y. 1, ;U X. E. 900.
172 Wood V. Detroit City St. Uy. Co., 52 Mich. 402, 18 X. W. 124. And, gen-
erally, see Wright v. Wll<'ox, 19 Wend. lU^i; Pennsylvania Co. v. Toomey, 91
Pa. St. 250 (but see McClung v. l)earlM)rne, VM Pa. St. ;i9G, 19 Atl. 698);
Fra.«cr v. Fre«*man, 4;5 X. Y. ."i^MJ; Vanderlmilt v. Kicliniond Turnpike (^o., 2
N. Y. 479; Mary v. I^rd, post; Sanford v. Kiglith Ave. liy., 7 Bosw. (X. Y.)
122; Illinois Cent. Ky. v. Downey, 18 111. 2."»9; De Camp v. Railway Co., 12
Iowa. 348; Mari»>n v. Uailroad Co., 59 Iowa, 42S. 13 X. W. 415; Dou;;lass v.
Stepliens, 18 ^lo. 362; Moore v. Sanl)orne, 2 Mich. 519; Wood v. Railway Co.,
52 Mich. 402, 18 X. W. 124; Snyder v. Kallroad Co.. 60 Mo. 413; Sutherland
V. lugalls, es Micli. (J2(>, ,3o X. W. 342; Harris v. Xicliols. 5 Munf. 48;{; Cox
v. Kealiey, 36 Ala. 340; Alabama G. S. R. Co. v. Harris. 71 Miss. 74, 14
South. 263; Deihl v. Ottenville, 14 Lea. 192; Jackson v. Railway Co., 47 N. Y.
274; 1 Sliars. Bl. Comm. 431, note; 2 Kent, Comm. 8§ 2r)9, 2<>0. A railroad
company is liable for the act of a conductor wlio, having ordered a trespasser
from one of its trains, shot him while he was in the act of aligliting. unless
the shooting was not done for the puriK)se of forcing the trespasser to get
off. but from personal resentment, Soutliern l*ac. C'o. v. Kennedy (Tex. Civ.
App.) 29 S. W. 394. Of. Thorburn v. Smith (Wash.) 39 Pac. 124. And see an in-
teresting article, with numerous citations, on the liability of a master for
256 LIABILITY FOR TORTS COMMITTED BY OK WITH OTHERS. [C'h. 3
84. Scope of authority as a test of the master's liability
depends for justification upon reasoning as to the
authority of the servant and not the duty of the mas-
ter, and is a limit assigned rather by public policy
than consistent logic.
It appears that the really enlarged meaning of the term "scope of
authority" made its way slowly, and despite the more or less appar-
ent hostility of the courts to the increased liability of the master.
The harshness of the rule holding one person responsible for the for-
bidden wrong of another had its due weight. Thus, it is said: **To
visit a man with heavy damages when he is able to show that he
has exercised all possible care and precaution in the selection of
his servants is apt to strike the common mind as unjusf ^^* *'We
never apply the rule resi)oudeat superior without a sense of its hard-
ships on the master." "*
Moreover, the language of the particular command test, and es-
pecially the general command test,^^** and the doctrine of identifi-
cation ^^' as accounting for the master's liability, dropped out of
thought very slowly. The futile restatement of the principle of liabil-
ity, respondeat superior, continues to be used, through inertia per-
liaps, gravely, as though it advanced the reasoning. The benefit of the
master and the mental attitude of the servant were given positions
of great importance, because the courts apparently have permitted
the cases to go not to the logical limit of any consistent theory, but
to the extent of what seemed to be practically expedient More-
personal Injuries to third parties, caused by tbe wlUful or malicious acts
of his servants, with ivforeiice to the recent case of Texas A: I*. Ry. Ck). v.
ScoviUe, 10 C. C. A. 470, 62 Fed. 730. by Thomas S. Gates, 34 Am. Law Reg.
& Rev. 120.
173 Hayes v. Miller, 77 Pa. St. 2;iS, 242,
17 4 Shea V. Reems. 36 La. Ann. 0(>6.
178 Hobbit V. London & N. W. Uy. Co., 4 Exch. 255; Ferjsruson v. Neilson, 17
U. L 81. 20 Atl. 229; Rounds v. Delaware, etc., Co., 64 N. Y. 129,— which Mr.
Chase considers a leading case (Chase, Load. Cas. 287); Pickens v. Diecker,
21 Ohio St. 212; Phelon v. Stiles, 43 Conn. 426. The master is not liable
when the servant does an act which he was not employed to do. Towauda
Coal Co. V. Heemau, 86 Pa. St. 418; MitcheU v. CrasswcUer. 13 C. B. 237-247.
176 Legal unity of principal and agent: 1 Suth. Dam. 750; Levi v. Brooks,
121 Mass. 501; Howe v. 2sewmarcli, 12 Allen, 49, 56.
Ch. 3] RELATIONSHIP. 257
over, in many cases, the master's service does not put on him a dnty
to third persons; and, where it does not conduce to the commission
of a wrong by the servant, the test is an eminently proper one. It
is certainly valid wherever the theory of identity will fnrnish an
adequate reason for the master's liability.^^^
86. OOUBSE OF XMPIjOYMENT— Another conception of
the master's liability rests on the proposition that
in certain cases the liability arises —
(a) Not from relationship of the master and servant ex-
clusively, but also from
(b) The duty owed to plaintiff by defendant in the par-
ticular case in issue.
In dealing with cases in which -the question of the liability of the
master for the tort of his servant' is raised, reference should be had
not alone to the relationship of the master and servant, but also to
the relationship between the master and the third person complain-
ing of injury. It would seem that the scope of authority test con-
siders too exclusively the former relationship, and overlooks the
latter. In fact, one's right infringed by the wrong of another may
be in personam or in the nature of a right in personam; as where a
passenger complains of the torts of a carrier's servant, or a customer
of the torts of a proprietor's servant. Again, the duty violated may
(with some latitude in expression) be said to be in rem; as where
harm to a stranger is caused by another person's dangerous instru-
mentalities, as by explosion of engine. Accordingly, in the former
class of cases part of the defendant's duty is derived from the con-
tract or relationship existing between him and the person injured.
in the latter class of cases, part of the defendant's duty is derived
from the use or custody of the things likely to do harm. But in
actual occurrence, in ordinary practice, both sources and other
sources contribute to produce the duty, and the cause of action.
i»» See Devllle v. Railroad Co., 50 Cal. 383.
LAWOPTORTB—l?
258 LIABILITY POK TORTS OOMMITTED BY OR VfTm OTHERS. £Ch« 3
80. The znaster ifl liable for the conduct of hie aeryaiit
within the course of hie employment, not only —
(a) Where responsibility would attach under the test of
scope of authority; but also
(b) Where the conduct is not intended to be for the mas-
ter's benefit, but for the servant's malicious, capri-
cious, or other private purpose; and
(c) Whenever a duty rests on the master to avoid doing
harm to third persons and the servant violates that
duty in the course of his emplosrment.
Qenernl Meaning cf^^ Course of EnqJoymenL^
The latest stage of development seems to be to hold the master
liable for All torts of his servants committed while in coarse of em-
ployment The test is not very definitely osed. While the doc-
trine and terminology is frequently accepted, it is constantly con-
fused, both as to language and thought, with the scope of authority
and the test of command.^ ^* The phrase '^course of employment,^'
while easily and fairly subject to criticism, would seem to be freer
from ambiguity and otherwise less objectionable than essentially
synonymous phrases. The term is not a new one, and has not al-
ways been, nor is it now always, used in this sense.*'*
Mr. Abbott, in his note to Mallach v. Ridley,*'* collects a large
number of cases, and very clearly states this phase of the law, as
follows: "Some say that it is only when the act of the servant is
ITS General scope: Young v. Soatb Boston Ice Co., 150 Mass. 527, 23 N. E.
326; North Chicago City Ry. Co. v. Gastka, 128 lU. 613. 21 N. E. 522; Chi-
cago, M. & St. P. Ry. Co. V. West, 125 lU. 320, 17 N. E. 78S; Whatman v.
l*earson, L. R. 3 C. P. 422. In respect to the very transaction: Wyllie v.
Palmer, 137 N. Y. 248, 33 N. E. 381. Prosecution of business intrusted to
him: Palmeri v. Railway Co., 133 N. Y. 265, 30 N. E. 1001. The phrases
"scope" and "course of employment" ai"e uae<l interchangeably. Aycrlgg's
ExVs V. Railway Co., 30 N. J. Law. 460.
iT» Foster v. Bank (1821) 17 Mass. 47V)-r)10; Oxford v. Peter, 28 111. 434.
180 (Sup.) 9 N. Y. Supp. 922; St. Louis, I. M. & S. Ry. Co. v. Hackett, 68
Ark. 381. 24 S. W. 881; Craker y. Railway Co., 36 Wis. a"57; Mulligan y. Rail-
way Co.. 129 N. Y. 506. 29 N. E. §52; Heenrich v. Pullman Palace-Car Co.,
20 Fed. 100; Fogg v. Boston & L. R. Corp.. 148 Mass. 513, 20 N. B. 109;
Yates V. Squires, 19 Iowa. 26; Mechem, Ag. 740, 577, note 1.
Ch. 3] RELATIONSHIP. 259
within the scope of employment of the master that the master is
liable; others, that it is enough that it was in the course of employ-
ment The principle now recognized is that while the employ^ is
acting in the course of employment the employer is liable, even
though the act was without the scope of employment, — ^that is to say,
unauthorized; and a number of the cases go so far as to hold (and,
it seems, justly) that if it was done in the apparent course of his
employment, and with the implements and facilities of the employ-
er's place and premises, the employer is liable, notwithstanding the
act may have been in a service not stipulated for by the contract
of employment, or during hours when the contract of employment
did not require any service. In other words, the liability of the
principal is not, as in the case of agency, tested by the scope of em-
ployment, but by the course of service."
AuthorUy of Mader iiol the Test of lAabUity.
The liability of the master for the conduct of his servant in the
line of the latter's duty is unquestioned; The difficulty arises in
cases where the act of the servant is not only unauthorized, but
forbidden. The divorce of the law of the liability of the master for
the torts of the servant from the test of authority appears in the
generally recognized rule that the master cannot discharge his duty,
nor limit his liability to third persons, by prescribing rules for the
regulation of his servant's conduct, and by the exercise of diligence
in securing their enforcement. He can discharge his duty only by
actual perfonnance. He is bound not only to make rules, but to see
that they are enforced. He is liable for acts which he may have ex-
pressly forbidden. He cannot define or affect his liability for non-
performance of duty to third persons by limiting the authority of his
servant. "To so qualify the maxim ^respondeat superior* would be
in a measure to nullify it." ^^* If the liability of the master for the
tort of his servant be regard(»d from the point of view of the duty
lei Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) 468. "Although
among the numerous cases on the subject some may be found which have
made some distinctions which are subtile and astute as to when the servant
may be said to be acting in the employ of his master, no case is to be found
which asserts the doctrine that a master is not liable for the acts of serv-
ants in his employment whore the particular act causing injury was done in
disregard of genonil orders or special commands of the master. Such quali-
260 UABILITY FOR TORTS OOMMITTKD BY OB WITH OTHERS. [Ch. 3
of the master, it does not logically or necessarily depend on command
or authority. "Authority to the servant to be negligent is not re-
quired to make the master liable/' *•■
HowTB of Employment not an Unfailing or Exclusive Test of LiabUiiy.
Hours of employment do not seem to determine the liability iof
the master absolutely. On the one hand, the servant may commit
an independent tort during the hours of work,*** and on the other
hand he may do something outside of working hours which will
make the master liable for his act Thus, where a toUgate keeper
ceases to collect tolls at 9 o'clock at night, but remains in charge as
the proprietor's only servant, and a traveler was injured by the
keeper's letting down the gate after that hour, it was held that the
proprietor was liable for his act*'^ But an employer, of course, is
«
llcatlon of the maxim 'respondeat superior' would, in a measure, nalUfy it
* * * Intrusting: such a powerful and dangerous engine as a locomotive to
one who wiU not submit to control and render implicit obedience to orders
is itself an act of negUgence,-^e causa causam of the mischief,— while the
proximate cause or the ipsa negligentia which produces it may truly be said
in most cases to be the disobedience of orders by senrants so intrusted. If
such disobedience could be set up by a railroad company as a defense when
charged with negligence, the remedy of the injured party would, in most
cases, be illusive, discipline would be relaxed, and danger to life and Umb
be enhanced." Singer Manuf*g Co. v. Rahn, 132 U. S. 518» 10 Sup. Ct 175;
Ck)n8oUdated Ice Mach. Ck>. v. Keifer, 134 111. 481, 25 N. E. 799; Pittsburgh,
a & St L. Ry. Ck>. V. Kirk, 102 Ind. 399, 1 N. E. 819; Fitzsimmons v. MU-
waukee, L. S. & W. Ry. Ck>., 98 Mich. 257, 57 N. W. 127; liamsden v. RaUway,
104 Mass. 117; Garretzen v. Duenckel, 50 Mo. 104; Ilobbs v. RaUway Co.,
66 Me. 572; Harris v. RaUway Ck>., 35 Fed. 116; Siegrist v. Amot, 10 Mo.
App. 197-201; French v. CressweU, 13 Or. 418, 11 Pac. 62; Johnson v. Cen-
tral Vt Ry. Co., 56 Vt 707; Philadelphia, W. & B. Ry. Co. v. Brannen (Pa,
Sup.) 2 Atl. 429; Bruce v. Reed, 104 Pa. St 408; George v. Gobey, 128 Mass.
289; Galveston, H. & S. A. Ry. Co. v. McMonigal (Tex, Civ. App.) 25 S. W.
341; Whatman v. Pearson, L. R. 3 C. P. 322; Gregory's Adm*r v. Ohio River
R. Co., 37 W. Va. 606, 16 S. E. 819; Receivers Houston & T. C. Ry. Co. v.
Stewart (Tex. Sup.) 17 S. W. 33; Pennsylvania Co. v. Weddle, 100 Ind. 141;
Northern Pac. R. Ck). v. Herbert, 116 U. S. 012, 6 Sup. Ct 590; Cosgrove v.
Ogden, 49 N. Y. 255; Qulnn v. Power, 87 N. Y. 555; McClung v. Dearbome,.
134 Pa. St 396, 19 AU. 698.
isa Gimilan, C. J., in Ellegard v. Ackland, 43 Minn. 352, 45 N. W. 715.
i«» Post* p. 270.
i8« NobelsviUe Ry. v. Gause, 76 Ind. 142.
Oh. 3] RELATIONSHIP. 261
not liable for the tort of his servant after the employment is ended.*'*
The servant may be within the em])loyment of the master while go-
ing and coming from work.*** The mere fact that damage occurred
during the noon hour will not prevent the master's liability. Thus,
where a driver not permitted by his contract with his master to go
home for dinner, or to leave his horses and cart, went home to din-
ner and left his horses unattended, the master was held liable for
damages done by the running away of the horses.**^
87. The duty owed by the master to third persons may
arise from contractual or conventional relationship
of the master to the person seeking to charge him
for his servant's -wrong, especially -where the mas-
ter's premises, instrumentalities, and facilities of
business made the harm possible, or where the
master will be held estopped to deny liability.
Where the duty arises out of a contract or some particular rela-
tionship between the parties, this is quite clear. Thus a common
carrier not only owes a duty to a passenger of at least limited pro-
tection against violent insults of a stranger and copassenger, but he
is also bound to see that the passenger does not suffer from the vio-
lence and assaults of his own servants. He cannot limit his liabil-
ity by saying such acts were unauthorized; nor is it material that
the conduct of his servant is not only reckless, but malicious and
capricious. Therefore a railroad company is liable where its serv-
i»» Yates V. Squires, 19 Iowa, 26; Baird v. Pettlt, 70 Pa. St. 477^83; Hurst
V. Railway uo., 40 Iowa, 76; Baltimore <t (J. Ry. Co. v. Slate, 33 Md. 642-
554. But see Ewald v. Chicago & N. Ry. Co., 70 Wis. 420, 36 N. W. 12, 591.
i«« Vick V. RaUway Co., 95 N. Y, 267; Tunney v. Midland Ry., L. B. 1 C.
P. 291; Wilson v. Railway Co., 18 Ind. 226; Gonnley v. Railway Co., 72 Ind.
31.
"7 Whatman v. Pearson, L. R. 3 C. P. 422; Broderick v. Depot Co., 56
Mich. 261-268, 22 N. W. 802; Morier v. St Paul, M. & M. Ry. Co., 31 Minn.
351, 17 N. W. 952. And see RusseU v. RaUway Co., 17 N. Y. 134; Rosenbaum
V. St Paul & D. R. Co., 38 Minn. 173. 36 N. W. 447; International & G. N.
Jly. Co. V. Ryan, 82 Tex. 565, 18 S. W. 219; St. Louis, A. & T. Ry. Co. v.
Welch, 72 Tex. 208, 10 S. W. 529; EvansviUe & R. R. Co. v. Maddux. 134
Ind. 571, 33 N. E. 345, and 34 N. E. 511; Wink v. Weiler, 41 111. App. 336.
262 UABILITY FOR TOBtB COMMITTED BY OB WITH OTUBBS. [Ch. S
ant kissed *" a female passenger or indecentlj insulted her.*** The
nature of the duty owed where there is a contract between the party
appears in the difference as to degree of protection to which a tres-
passer is entitled. Thus it is said that a trespasser in a train can-
not recover for the willf nl condoct of a railway servant, espedallj
while patting the trespasser off the train; *** but a railway company
!•• Crakers v. Railway Co., 36 Wis. 657.
i»» CampbeU v. PaUman Palace Car Co.. 42 Fed. 484; St. LouSii, L M. 1^
8. By. Co. V. Hackett, 58 Ark. 381, 24 S. W. 881; Bryant v. Bldi. 106 Mass.
180; Bherley y. BiUings, 8 Bosh, 147; McKinley t. Cbicapo & N. W. Ry. Co.,
44 Iowa, 314; Meto v. Clark, 1 CUIT. 145, Fed. Cas. No. 10,262; New Orleans,
St K & C. Ry. Co. V. Barke, 53 Miss. 200; Peeples v. New Brunswick & A. K.
Co., 60 6a. 282; Ctiicago Sc E. Ry. v. Flexman, 103 lU. 546; Indianapolis Union
Ry. Co. V. Cooper (Ind. App.) 33 N. E. 219; Lake Shore & M. S. Ry. Co. v.
Prentice, 147 U. 8. 101-111, 13 Sup. Ct 261; Pennsylvania Ry. Co. v. Vanduer.
42 Pa. St 365; Citizens' St Ry. Co. v. Willoeby (Ind. App.) 33 N. E. 637;
Passenger Ry. y. Young, 21 Ohio St 518; Hoffman v. New York Cent & H.
R. R. Co., 87 N. Y. 25; Dean v. Depot Co., 41 ^linn. 300, 43 N. W. 54; Conger
y. St Paul, M. & M. Ry. Co., 45 Minn. 207, 47 N. W. 7SS; Cain y. Railroad
Co., 39 Minn. 247, 39 N. W. 635; Goddard v. Grand Trunk Ry., 57 Me. 202
(cf. opinion of majority of court with that of Tapley, J., disisenting); Palmerl
y. Railway Co., 133 N. Y. 2G1, 30 N. E. 1001; Stewart v. Brooklyn Ry. Co..
90 N. y. 588 (disUnguishing Isaacs v. Third Ave. Ry. Co.. 47 N. Y. 122); Dug-
gan V. Baltimore & O. Ry., 159 Pa. St 24S, 28 AtL 182, 186; BalUmore & O. R.
Co. V. Barger (Md.) 30 Atl. 560; Terra Haute & I. Ry. Co. v. Jackson, 81 Ind.
19. An extended note, with numerous citations, as to the liability oi carriers
for Injuries caused by the negligence or torts of tlielr servants, by H. Camp-
b^ Black, 10 C. C. A. 466. And more specifically the Uability of the master
to third persons caused by the malicious or willful acts of his seryants will
be found and considered by Thomas S. Gates in 34 Am. Law Reg. 12().
The law does not reqdire of a carrier, howcv^, a rigid obsenrance of the
formal amenities of social Ufei It has no code of manners. A conductor may
accordingly eject a passenger on a train by mistake roughly, but not vio-
lently, and the company not be made liable. New York, L. E. & W. Ry. Co.
V. Bennett, 1 C. C. A. 544, 50 Fed. 496; PouUin y. Canadian Pac. Ry. Co.,
3 C. C. A. 23, 52 Fed. 197.
190 Alabama G. S. R. Co. v. Harris, 71 Miss. 74, 14 South. 203; Illinois Cent
R. Co. V. Latham (Miss.) 16 South. 757; Alabama & V. Ry. Co. v. McAfee, 71
Miss. 70, 14 South. 260; Case of Royston, 67 Miss. 376, 7 South. 320; compare
Texas & P. Ry. Co. v. Mother, 5 Tex. Civ. App. 87, 24 S. W. 79. And see
Smith V. Railroad Co., 95 ICy. 11, 23 S. W. 652. The responsibility of railroad
companies is determined not by law of common carrier, but by that of
agency. Parber v. Missouri Pac. Ry. Co., 116 Mo. 81, 22 S. W. 631. A short
Cb. 8] RELATIOK8UIP. 263
has no right to inflict injury on him wantonly or recklessly.^*^ The
liability of a carrier is said to be the same as the liability of an
innkeeper.*** Similarly, a patron of a theater has a right to be pro-
tected while in the theater, and if the ticket agent should call on
any one of the number in the theater to "put that nigger out," and
some ruffian does so, the proprietor will be liable.*** So, a landlord
cannot escape liability for noxious gases because his servant neg-
lects to do his work properly.*** It was said at an early time that
cases of this kind were ^'exceptions founded on public policy."***
However, it is not only in cases where there is a contract between
the party that the duty to protect against harm by servants exists.
Thus, where a merchant invites a customer to enter his premises,
he is responsible for the willful and malicious arrests,*** or assaults
of his servants.**^ Where an insane servant killed a i)erson who was
in the master's office for the transaction of business, the master was
held liable.*** So, where a ticket agent posts notices as to ''an alleged
ticket swindle'Mn a, railroad office, the company is liable, though the
note as to the UabiUty of raUroad company for the acts of a brakeman in
ejecting a trespasser. 0 Am. B. & Ck>rp. B. 348. *
i»i St Louis, I. M. & S. Ry. Co. v. Hackett, 58 Ark. 381, 24 S. W. 881;
Hahl y. Wabash R. Co., 119 Mo. 325, 24 S. W. 737; Planz v. Boston & A.
iEt. Co., 157 Mass. 377, 32 N. E. 356; Georgia R. R. & B. Co. v. Wood (Ga.)
21 S. B. 288; BriU v. Eddy, 115 Mo. 596, 22 S. W. 488; Southern Pac. Co. v.
Kennedy (Tex. Civ. App.) 29 S. W. 394; Bess v. BaUway Co., 35 W. Ya. 492,
14 Sooth. 234; Mobile & O. B. Co. v. Seals (Ala.) 13 South. 917.
!•« Wade V. Thayer, 40 Cal. 578; Curtis v. Dinneer (Dak.) 30 N. W. 148;
Bass V. Chicago & N. W. By. Co., 36 Wis. 450; Com. v. Powers, 7 Mete.
(Mass.) 596.
i«»Drew V. Peer, 93 Pa. St 234; Dickson v. Waldron, 135 Ind, 507, 84
N. E. 506, and 35 N. E. 1.
ii»« Martin v. Bichards, 155 Mass. 881-386, 29 N. E. 591.
i»B Foster v. Essex Bank, 17 Mass. 479>^10.
it6 Geraty v. Stern, 30 Hun, 426; Staples v. Schmid (B. I.) 26 AtL 193;
Hershey v. O'Neil, 36 Fed. 168. But see Mali v. Lord, 39 N. Y. 381; Meehan ▼.
Morewood (Sup.) 5 N. Y. Supp. 710; and Porter v. Bailway Co., 41 Iowa,
36&
ft Mallach v. Bidley (Sup.) 9 N. Y. Supp. 922; Christian v. Columbus &
B. By. Co., 90 Ga. 124, 15 S. E. 701; Swinarton v. Le Boutillier (Com. PI.)
28 N. Y. Supp. 53.
• i»8 Christian v. Columbus & B. By. Co., 90 Ga. 124, 15 S. E. 701. And
see Sherley v. Billings, 8 Bush, 147; Bryant v. Rich, 100 Mass. 180.
2&4 UABiLiTT volt roans ojmMiTit,u by or with utbebs. [Ch. S
act of the agent was in exceas of authority.^** A railroad companj
owe* a datj to penions gfanding od the platform at a station.***
Thus, if in a saloon an intoxicated person, in the prea^ice of the
proprietor, attach a burning piece of paper to his dmnk^i compan-
ion's clothes the proprietor is liaUe for damages resulting from the
Iraming,***
88. The master's duty to fUrd peraona may ariae from,
ownership or custody of daagerons things, and it
(a) The conduct of the servant^ thongh forbidden, and
f6r the servant's private purpose and not for the
master's benefit; and to
(b) The unauthorized conduct of strangers or mere vol-
unteers.
Conduct cf tfie Servant.
Wlioever owns, uses, or controls property which is in itself dan-
gerons, or is likely to result in damage to others, is held by law to
the duty of protecting others from injury therefrom.**^" Sometimes
this duty amounts to insurance, at other times to the exercise of
proportionate care. When the master owns, uses, or controls such
inHtrumentalities, he is bound to perform that duty, and he cannot
oMcape it by the exercise of care in the selection of his servants.
Therefore the maHter was held liable for the forbidden act of his
employ(5H who frightened horses by blowing steam *®^ from an engine
i»0 Fogg V. Boston & L. R. Corp., 148 Mass. 515, 20 N. B. 109.
too Ohio U. Co. y. Sims, 43 IlL App. 260.
«oi Uommel v. Schambacher, 120 Pa. St 579, 11 Aa 779; Brazil v. Peter-
son, 44 Minn. 212, 40 N. W. 331. Cf. Fortune t. Tralnor (Sup.) 10 N. Y. Supp.
008. Thus, if servants allow thieves to rob a car, the railroad company is
liable to the owner of the goods. Lang y. Pennsylvania R. Co., 154 Pa. 342,
2rt Atl. 370.
ao8 "Words may be as dangerous as tiring a gun into the street Therefore
tt master may bo liable for the forbidden act of his servant in publishing a
libel." Holmes, J., in Hanson v. Globe Newspaper Co., 159 Mass. 301, 34 N.
Q. 402. Dun v. Hall, 1 Ind. 344.
■o« Te.\a8 & P. Ry. Co. v. Scovllle. 10 O. C. A. 479, 62 Fed. 730; Toledo. W.
ft W. Ry. Co. y. Harmon, 47 111. 298; Chicago, B. & Q. Ry. Co. y. Dickson,
03 111. 101; Cobb V. Columbia & G. Ry. Co., 37 S. C. 194, 15 S. E. 878. And
Cb. 3] RELATIONSHIP. 265
of which thej had full charge. And for the same reason the owner
of property is liable for the act of his servant in setting fire to grass
whereby a neighbor is damaged.*®^ The liability of the master is
sometimes worked out on the line that he is responsible for neg-
ligence in the custody of a dangerous thing, rather than on the line
of responsibility because of the act of the servant. Thus, in Bail-
way Co. V. Shields,'®" servants for their own amusement, and under
circumstances which the court was ready to conceive did not make
their acts the acts of the master, put torpedoes, supplied them by the
railroad company for use as signals, in front of the engine. The
railroad was held liable, not for the act of the servant, but because
the thing of danger, the torpedoes, occasioned a runaway. On the
other hand, in Brunner v. Telephone Co.,*®* one of a gang of men
who had to do only with placing poles for telephone line, tested, for
his own amusement, a cartridge belonging to the gang which pre-
pared the holes. The cartridge exploded to another's injury. The
court held that the question of whether or not the servant was act-
ing within the course of his employment was for the jury.
Conduct of Stranger or Volunteer.
Where, however, no such privity exists, where the servant stands
in the attitude of an independent contractor, the principal is liable
only in those cases in which he could be held responsible for the
see Ochscenbeim v. Shapley, 85 N. Y. 214; Nashville R. Go. v. Starnes, 9
Heisk. 52; Receivers H. & T. 0. R. Co. v. Stewart (Tex. Sup.) 17 S. W. 33;
St Louis, A. & T. R. Co. v. Trlplett, 54 Ark. 289, 15 S. W. 831, and 10 S. W.
266; Akridgc v. Atlanta & W. P. R. Co., 90 Ga. 232, 16 S. E. 81; LouisyiUe,
N. A. & C. R. Co. V. Stanger (Ind. App.) 32 N. E. 209. A collection of au-
thorities on the liability for damages resulting from the frightening of horses
by blowing whistles, emitting steam, etc. 9 Am. R. & Corp. R. 482. But see
St^henson v. Southern Pac. Co.. 93 Cal. 558, 29 Pac. 234; Gulf, C. & S. F.
Ry. V. Klrkbrlde (Tex. Sup.) 15 S. W. 495; Carter v. Railroad Co., 98 Ind. 552;
Fitz.simmons v. Railway Co., 98 Mich. 257, 57 N. W. 127.
304 Johnston v. Barber, 10 lU. 425.
206 Smith V. New York Cent. & H. R. R. Co., 78 Hun. .''^9'i, 29 N. Y. Supp.
540. And see Harriman v. Railway Co., 45 Ohio St. 11, 12 N. B. 451. But
cf. Slayton v. Fremont, E. & M. V. R. Co. (Neb.) 59 N. W. 510.
. 206 Brunner v. American Tel. & Tel. Co., 151 Pa. St. 447, 25 Atl. 29. Bt
vide Neveu v. Sears, 155 Mass. 305, 29 N. E. 472; Fredericks v. Railroad Co.,
157 Pa. St 103, 27 AU. 689.
266 LIABILITY FOR TORTS OOMMITTBD BY OR WITH 0THKB8. [Ql. S
acts of the servants or agents of any other individual contractor.**^
The master may be liable for the act of a stranger or volunteer^
The law is by no means clear or consistent as to this point Very
frequently the volunteer becomes by some implication of assent a.
servant of the master. Thus, if a volunteer assist in cutting trees
on the line of the master's premises, to mark it with a brush fence^
and commit a trespass on a neighbor's land while the master is pres-
ent, the latter may be held liable.*®' In many cases, however, the true
theory would seem to be that the master is held liable, not because
the stranger is his agent or servant, but because the master fails
in the performance of some duty owed to third persons, and it would
appear to be immaterial whether the failure*®' be due to one in
his service or not. The duty of the owner to exercise commensurate^
care in the use and custody of a dangerous instrumentality is such
that the interference therewith by a complete stranger, intruder, or
mere volunteer resulting in damage to an innocent person will make
the owner liable. Thus, where a railroad company left a loaded
car coupled with two empty cars standing on a switch which in-
clined towards their main track, the same being secured by brakes
and a tie placed under the wheels of the loaded car, and a person
was injured by the cars running down onto the main track, it was
held that the company was responsible, as a matter of law, even
though the cars would not have run onto the main track but for
the wrongful act of a stranger in taking away the tie.**® Similarly,,
if a man leaves a quiet horse standing in the streets unguarded, and
a stranger strikes him, the owner is liable for damages done by his
running away.*** It has, however, been held that the grossly crim-
soTMechem, Ag. § 749.
*«» Hm V. Morey, 26 Vt 178; Booth v. Mister, 7 Car. & P. 66; Andrews ▼.
Boedecker, 126 111. 605, 18 N. E. 651; Hill v. Sheehan (Super. N. Y.) 20 N. Y.
Supp. 529.
200 Cleveland v. Spier, 16 C. B. (N. S.) 390.
210 Smith V. Railroad Ck>., 46 N. J. Law, 7; Southern Pac. R. Go. v. Lafferty^
57 Fed. 530. Gf. Mars v. Delaware & H. Canal Co., 54 Hun, 625, 8 N. Y.
Supp. 107; Althorf v. Wolfe, 22 N. Y. 355, opinion by Denio, J.; Lane v. At-
lantic Works, 111 Mass. 136: Pastene v. Adams, 49 Cal. 87; Bast Tennessee,
V. & G. R. Co. V. Kane (Ga.) 18 S. B. 18. But see Fredericks v. Railroad Oo.^
157 Pa. St. 103, 27 Atl. 689; Latch v Rumner Ry., 3 Hurl. & N. 930.
211 Illldge V. Goodwin* 5 Gar. & P. 190; Lynch v. Nnrdin, 1 Q. B. 29; Dixon
Cb. 3] RELATI0K8HIP. 267
tnal act of a stranger in letting off the brakes on loaded cars stand-
ing on an open switch, and then closing the switch so that the cars
ran ont on the main track, causing a collision with a passenger train,
will not render the company liable, in the absence of negligence in
failing to discover the mischief or preventing its effect**'
Liability in Cases of Fraud,
Gases of liability for torts arising from fraud attributable to per-
sons because of the conduct of other persons usually arise between
principal and agent, rather than between master and servant Ac-
cordingly, it is often loosely said that the rule is not as broad where
the principal is held liable for the act of his agent as where the re-
lationship is that of master and servant*"
v. BeU, 5 Maule & S. 198. The defendant was using on the streets of a city
two heavy Iran rollers drawn by mules. The driver of one left his team
unhitched for a short time, and went to assist with the other roller. The
mules were quiet and accustomed to stand. A boy five years old got on the
roller, started the mules, and was fataUy injured. Held, that the driver was
negligent, and the defendant responsible as his master. Westerfield v. Levis,
43 La. Ann. 63, 9 South. 52.
an Fredericks v. Northern Cent. Ry. Co., 157 Pa. St 103, 27 Atl. 689. And
where a railroad company deiM>sited torpedoes In its section house, and se-
curely fastened the doors and windows thereof, the company is not liable for
injuries to children who unfastened one of the windows, and removed and
exploded one of the torpedoes. Slayton v. Fremont, B. & M. V. R. Co. (Neb.)
69 N. W. 510.
S18 The general discussion on this point found in Fraser, Torts, at page 181,
Is exceUent. It follows in entirety:
Misrepresentation Made by Agents.
The agent himself is personally liable, according to the general rules gov-
erning the law as to fraud. The liability of the principal depends on several
considerations. The following cases appear on this matter:
L Thb Principal Kkows tub Rrprebbntatiok to bb Falsb.
(1) He authorizes the making of it In this case, whether the agent
knows it to be false or thinks it to be true, the principal is
liable,
(il) The representation is made by the agent in the general course of
his employment, but without any specific authorization from the
principal. When
(a) The agent knows it to be false, the principal is liable; per
Parke, B., in Comfoot v. Fowke (1840) 6 Mees. & W. 358.
(b) The agent thinks it to be true. In this case the contract may
268 LIABIUTY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3
The liability of the principal for the fraud of his agent, in many
cases, rests — ^a sort of an estoppel — upon the fact that he has put
always be rescinded,— but wUl an action for fraud lie
against the principal? The two following distinctions must
be remembered:
(a) When the principal fraudulently keeps the knowledge
from the agent, he is no doubt liable. This was ad-
mitted by all the barons in Ck>mfoot v. Fowke, Id. 35D,
and followed In Ludgater v. Love (1881) 44 Law T.
(N. S.) 694» where a father knowingly directed his son
to make a false r^resentation about the condition of
some sheep.
(b) When the knowledge is held back by the principal through
inadyertence. In tills case it is probable that an ac-
tion will lie against the principal, though this would
be contrary to the decision in CJomf oot v. Fowke (1840)
6 Mees. & W. 359, where there was a misstatement by
the agent in good faith, and there was no suggestion
of fraud on the part of the principal, about the condi-
tion of a house, and it was held that the plaintifT
could not get out of his agreement on the ground of
fraud. "I think," said Alderson, B., "it is impossible
to sustain a charge of fraud, when neither the prin-
cipal nor agent has committed any,— the principal, be-
cause, though he knew the fact, he was not cognizant
of the misrepresentation being made, nor even directr
ed the agent to make it; and the agent, because,
though he made a misrepresentation, yet he did not
know it to be one at the time he made it, but gave
his answer bona fide." Abibger, C. B., dissented, and
it is very probable that this case will be oyerruled,—
if, indeed, it is even now law. Many dicta are to be
found adverse to this decision, those of Willes, J., in
Barwick v. Bank (1867) L. R. 2 Exch. 259, being espe-
cially worthy of notice.
IL Ths Principal Thinks thb Reprkskntation to bb Trub.
(i) He authorizes it to be made. When
(a) The agent knows at the time, or finds out afterwards, that it
is false, the principal is liable. Barwick v. Bank, supra.
(b) The agent thinks it to be true. Here the principal is not
liable.
(11) The agent makes the representation in the general course of his
employment, but without any specific authorization. When
(a) The agent knows it is false, the principal is liable. Udell v.
Ch. 31 RELATIONSHIP. 26^
the agent In a position to do wrong, and should therefore suffer
rather than an innocent third party.*** The principal is liable for
the means the agent uses to accomplish the ends of the principal,^
whether snch means be fair or unfair. Thns, in dealing with spe-
cific articles of property, a stranger can only be required to look
to the acts of the parties as to the external indicia of the property^
but not to the private communication which may pass between the
principal and agent The agent, therefore, may bind his principal
within the limits, not of real, but of apparent, authority.'** An
agent's fraudulent representations as to the condition of uninspect-
Atherton (18G1) 7 Hurl. & N. 171, and Barwick v. Bank,
supra. It has been sugcrested that this liability is limited
to the amount of profit made, though in Swire t. Francis
(1877) 3 App. Gas. 106, the privy council held a principal
liable who derived no profit at alL It Is, however, possi-
ble that the limitation suggested would be held applicable
if the defendant were a corporation (per Lord Cranwortb
in Western Bank of Scotland v. Addle (1807) L. R. 1 H.
L. Sc, at pages 166, 107; and see per Bowen, L. J., In
British Mutual Banking (^. v. Chamwood Forest Railway
Go. (1887) 18 Q. B. Div., at page 719), though the point was
not taken in Denton v. Great Northern Ry. Go. (1856) 5
El. & Bl. 800.
(b) The agent thinks it to be true, the principal Is not liablet^
Thus we find that the principal is liable in all possible
cases, except when both he and his agent believe the lat-
ter's misrepresentation to be the truth.
s)4 Wolfe V. Pugh, 101 Ind. 293-301; Lamm v. Port Deposit Homestead
Ass'n, 40 Md. 233-241; Halsell v. Musgraves, 5 Tex. Civ. App. 476, 24 S. W.
.358; Independent BIdg. & Loan Ass'n v. Real Estate Title Ga, 15 J Pa. St.
181-103, 27 Atl. 62; Thompson v. Bell, 10 Exch. 10; Story, Ag. § 443; Blsp,
Eq. § 217; Hern v. Nichols. 1 Salk. 289; Oris wold v. Haven, 25 N. Y. 595;
Goleman v. Pearce, 26 Minn. 123, 1 N. W. 846; Pence v. Arbuckle, 22 Minn.
417; Moore v. Metropolitan Nat. Bank, 55 N. Y. 41; Voorhis v. 0!mste.:d, 6>
N. Y. 113; Lindauer v. Younglove, 47 Minn. 62. 49 N.W. 384; Palmer v. Bates,
22 Minn. 532; Judson v. Gorcoran, 17 How. 612; Burgess v. Bragaw, 40 Minn,
462, 52 N. W. 45; Dun v. Gity Nat. Bank, 7 G. G. A. 152, 58 Fed. 174; Prie-
lander v. Railway Ck)., 130 U. S. 416, 9 Sup. Gt 570.
215 Pickering v. Busk, 14 East, 43; Mackay y. Bank, L. R. 6 P. G. 394; Hal-
sted's Ex'rs v. Golvin, 51 N. J. Eq. 387, 26 Atl. 928. Gompare Udell v. Ather-
ton, 7 Hurl. & N. 170; Western Bank of Scotland v. Addle, L. R. 1 H. L. Sc
146; Kennedy v. McKay, 43 N. J. Law, 283.
270 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3
ed lands, inducing a trade, makes his principal liable.'^* So, if the
agent points out the wrong land, and the purchase is made in the
belief that the land shown is the land purchased, the principal is
liable.'^^ And where a knavish or blundering insurance solicitor
induces an applicant for a policy to sign a statement which he did
not make, and did not intend to make, the company cannot avoid
the policy to the injury of the insurer.' *• The fact that the policy
was accompanied by a copy of the application showing the fraud is
for the consideration of the jury. The insurance company cannot
escape the contract by repudiating the fraud of its agent,'^* nor can
it do this by stipulating that the solicitor is the agent of the insurer
and not of the insured, without putting the applicant on his guard
in advance of the negotiations.**®
The English rule seems to be quite clear that the principal is
liable for the act of his servant in the course of the principal's busi-
ness only when the act of his agent is for the principal's benefit;
and for fraud beyond the scope of business, if the principal has de-
rived a benefit, but only to the extent of the benefit received.*** In
America it is recognized that a ''man cannot reap the fruit of his
agent's fraud and escape liability by denying the agent's author-
ity." ***
216 Rhoda V. Annis, 75 Me. 17; Wolfe v. Pugh. 10 Ind. 293: Lynch v. Mer-
rautile Trust Co., 18 Fed. 48(5; Law v. Grant, 37 Wis. 548; Qunther v. UUrich,
82 Wis. 222, 52 N. W. 88; Leavltt v. Slzer, 35 Neb. 80. 52 N. W. 832: Jewett
V. Carter, 132 Mass. 335;
2 IT McKInnon v. VoUmar. 75 Wis. 82, 43 N. W. 800; Burke v. RaUway Co..
83 Wis. 410, 53 N. W. 002.'
2i8EUenberger y. Protective Mut. Fire lus. Co., 89 Pa. St. 464. And see
Hopkins v. Hawkeye Ins. Co., 57 Iowa, 203, 10 N. W. 605.
21* Klster V. Insurance Co., 128 Pa, St. 553, 18 Atl. 447.
220 Meyers v. Lebanon Mut. Ins. Co., 150 Pa. St 420, 27 Atl. 39; Dettra
y. Kestner, 147 Pa. St. 560, 23 Atl. 889. Where the agent. In seUlns a boat,
falsely represents that there are no claims against It, both the agent and his
principal are civilly liable for the deceit. Wheeler v. Baars, 33 Fla, 67.6. 15
South. 5S4.
221 Barwlck v. English Joint-Stock Bank, L. K. 2 Exch. 259 (commenting
on UdeU v. Atherton, 7 Hurl. & N. 171); Weir v. Bell, 3 Exch. Dlv. 238;
Houldsworth v. City of Glasgow Bank, 5 App. Cas. 317.
222 Jones V. Association, 94 Pa. St. 215; Sunbury Ins. Co. y. Humble, 100
Pa. St. 495. And see Albltz y. Railway Co., 40 Minn. 476, 42 N. W. 394; Mitd^-
Ch. 3] RELATIONSHIP. 271
Moreover, the master may be held liable for the fraad of hi0 serv-
iint, though forbidden by the master, and resulting in no benefit to
him, and though willful and malicious. This principle has been
applied to the case of a local agent of a telegraph company who was
also the agent of an express company at the same place and who
sent a forged dispatch to a merchant in a neighboring city, request-
ing him to forward money to his correspondent at the former place,
to use in shipping grain. The message was duly received, and the
money in good faith forwarded by express in response to the tele-
gram, but was intercepted and appropriated by the agent. It was
held that the transmission of the forged dispatch was the proxi-
mate cause of the loss, and that both companies could be sued,
separately or jointly.^** But, if the principal owes another no duty
to protect against the fraud of his agent, he cannot be held liable
for the agent's personal wrong. Thus, where a mercantile agency
stipulates expressly that the veracity or correctness of the informa-
tion is in nowise guarantied, a subscriber cannot recover damages
resulting from the willful and fraudulent act of a subagent in fur-
nishing information.'^^
S9. The reason of the master'B liability is not exclusively
or finally —
(a) His authority, i. e. the identdflcatlon of master and
servant.
(b) His benefit, or the servant's motive.
(e) The lawfulness of the conduct, or its unlawfulness.
(d) Respondeat superior.
(e) The propriety of making the master rather than an
innocent stranger suffer for the servant's wrong.
It is a matter of great difficulty to assign any definite single rea-
son for holding the master liable for the act of his servant. Cer-
eU V. Donahey. e2 Iowa, 376, 17 N. W. 641; Leavltt v. Slzer, 35 Neb. 80, r>2
N. W. 832; Ck>nt]neiital Ins. Co. y. Insurance Ck>., 51 Fed. 884; Buscb v. Wil-
cox, 82 Mich. 336, 47 N. W. 328; Ripley v. Case, 86 Mich. 261, 49 N. W. 4(;.
«2« McCJord V. W. U. T^. Co., 39 Minn. 181, 39 N. W. 315; Jasper Trust Co.
▼. Kansas City, M. & B. R. Co., 99 Ala. 416, 14 South. 546.
224 Dun V. City Nat. Bank. 7 0. C. A. 152, 68 Fed. 174, overruling 61 Fed.
160.
K% uakwtt wmtL rcsra «sMnr7;zn a? rut wish '-.'tkxss. [-Ih. ^
fk^ ma*r» — fiiat lit *h«% d»'»^rrja0t of ui«itfAmfna ^f die
•^rraA- --^wwriin vM^u^'.j f4w a r*»5iiMMi ro tort* ^onHsced to by
fh^ AMMf^y sttuf p^!rri;»p<i ail v, •.,r*.^ ".rami^r^^fi in ^le emne «f a^-
'h/j^lf/, ^0^tiskl fifi irti;,ileA. ?<«> f^r aii this maoa is laficjent, it
wf^Ui iif:iffai, #Mi ilndl aaiiljrL^, r/> !>!• Irits^eatRj bi> more tliaM a dear
€ajN5r #i< th^ ^Atk^ri^'wrn oi rh^ ma.^tftr a.^. -iie ;^rMi•!aI ciisK «£ the in-
\mj^ hnt a« t/> fhe Un^ /tl^iHi of torts crnnmirted bj Ae aermnt
for wfcl^h th^ maiit^T m liable tt m efearlj iii.^afBcwnt. Tbm, it
wb/jfl/ faiin ti> aeermnt for the liability wb^re the tort is forbiddea*
<^«qp#>;eian/ wb^»T«^ rh^ nerrant't fjcmdnft was for his ovm prHmte pur-
It app^ram also that the mental attitude of the serrant Is not tbe
tent of liabilftj. Tbe msufter may be liable for the nalidons and
eflpffdoos aet of bia serrantt — where there is hkralhed a qiecial re-
IniUmnMpf an that of a eoimnon earner to its paiwenger; or the poa-
MiMiion of propertj being dealt with, aa an inanrance policy; in a
€Bm9 (ft fraod; or the costody of a dangerooa thing, as a torpedo.
Where, howerer, tbe senice of the master did not in some way make
poMifble the wrongdoing of the senrant, and wb^e there was no
i«fi#'dfll dnfy retting on the master, the matter of the master's bene-
fit and the servant's motive is properly a matter to be considered
by tho Jury in determining whether the given conduct was within
itr witiioiit the course of employment It is not necessary that the
net Mtioiilil be for the master's benefit On the contrary, it may re-
fiult in injury to him apart from the damage done to the person
rluirglfig him with the servant's wrong (as where the servant will-
fully (If'ivPM a vehicio againnt a perflon and injures both the person
un<l his muNtor's vehicle).
N(ir In the unlawfulness of the conduct of the servant a test of
llio itiiiNtcr'N lliibllity. On the contrary, if such conduct be in pur-
Mtutriro of Iho mantor's command, express or implied, the servant and
iniiMiiT nuiy bo Joint tort feasors. Respondeat superior is useless
UM a toNt, bornuRO It is a more restatement of the rule. A similar
(luul not Inconsistent) reason frequently assigned is that, the em-
\)U)yiS having dono damage in course of his employment, the master
rathor than tho third person should be liable.
In Romo casosi as conspicuoushy in fraud, the master may be es-
Ch. 3] RELATIONSHIP. 273
topped from denying his servant's authority. His liability upon
the same state of facts may be regarded as a species of estoppel,
based on his duty not to put it into his servant's power to do
harm.^** The general reasoning under consideration is, however,
dangerous and unsound, in that it assumes that where damage is
suffered some one must pay. It is elementary that mere damage
to an innocent party is not actionable. In addition to such damage
it must also be shown that there was a breach of duty, and that the
defendant was the juridical cause of the wrong.
80. But while most of these consideratioxis are entitled to
-weight in appropriate cases, the true general rea-
sons for the master's liability -would seem to be —
(a) That the master owes a duty to third persons which
varies with circumstances;
(b) That he insures third persons against the violation
of such duties; and
(c) If his servant in the course of his employment vio-
lates such duty, the master is the Juridical cause of
the consequent injury.
DiUy.
The variation of the duty may depend, for example, upon con-
tract or relationship, as in case of common carriers, innkeepers^
storekeepers, and the like; or upon the custody, use, or control of
dangerous instrumentalities, as engines, ferocious animals, and the
like; or upon the custody, use, or control of innocent instrumentali-
ties affording the opportunity of mischief by the servant, as the
possession of property used to perpetrate fraud, or the facilities of
business, and the like. This idea has been clearly put in the Wis-
S2S That negligence in clothing a person with title and authority may work
estoppel to deny a responsibility for consequences, see Brainard v. Knapp,
9 Misc. Rep. 206, 29 N. Y. Supp. 678; BlaiedeU v. Leach, 101 Cal. 405, 85 P..e
1019; Girault v. A. P. Hotaling Co., 7 Wash. 90, 34 Pac. 471; Curtis v. Janzen,
7 Wash. 58, M Pac. 131; McFadden v. Lynn, 49 111. App. 166. Cf. Clarke v.
MlUlgan (Minu.) 59 N. W. 955. Et vide Gou!d v. Wise. 97 Cal. 532, 32 Pac. 67ii>
and 33 Pac. 323; Foreman v. Weil, 98 Ala. 495, 12 South. 815: Hollis y.
Harris, 96 Ala. 288, 11 South. 377; Lawrence v. Investment Co., 51 Kan. 222,
82 Pac. 816: Dolbeer v. Livingston, 100 Cal. 617, 35 Pac. 32S.
I*AW OF TOHT8— 18
274 UABIUTY fOR TOBTB OOMlfirrED BT OB WITH OTHKBS. [Gh. S
ecmsiii caset^ to tlie effect that UabUity of the master ia limited to
those cases where tlie principal owes a duty to third persons^ Be-
ing responsible for the performance of this datj, if he delegates it
to an agent and the agent faUs to perform it, it is immaterial wheth-
er the failure be accidental or willful, in the negligence or in the
malice of the agent The dnty of the principal is equally broken
by the negligent disregard or the malicious disregard of the right*'*
So, with respect to the liability of the employer in a case of inde-
pendent contractor, it seems clear that he who has a duty to perform
cannot shift the duty to the shoulders of another, and is liable for
its nonperformance, although the fault may be directly attributable
to another who has contracted to do the work.'*^ Indeed, as has
been shown, in some cases the master may be liable for the injurious
consequences of the conduct of volunteers, interlopers, and mere
trespassers.
Much misconception on the subject has arisen from the failure to
realize that the master's responsibility is graduated according to the
circumstances. '^The degree of responsibility," says Mr. Pollock,
''may be thus arranged, beginning with the mildest: (1) For one's
self and specifically authorized agents (this holds always). (2) For
servants or agents generally (limited to course of employment). (3)
For both servants and indei>endent contract<H*8 (duties as to safe
repair, etc.). (4) For everything but vis major (exceptional: some
«ases of special risk, and, anomalously, certain public occupations)."
The Master an Insurer against Torts, not against Damage,
It is, perhaps, putting the duty of the master too strongly to say
that he iuHures against commission of torts by his servants; but
certainly no exercise of care on his part, either in the selection of
his servants *'* or in the formulation, promulgation, or enforcement
aso Bfins v. Railway, 42 Wis. 654; Schaefer v. Osterbrlnk, 67 Win. 495. 30
N. W. 022. Et vUlo Dillon, J., 24 Am. Law Rev. 177.
•97 Tany v. Ashton, 1 Q. B. Dlv. 314; Pig. Torts, 94.
asi Oukliiud City A. & I. Soc. v. Bingham, 4 Ind. App. 545, 31 N. B. 383;
OBborne v. McMasters, 40 Minn. 103, 41 N. W. 543. The fact that the negli-
gence In employing a boy in a place of danger was that of the mine boss, who
held a certificate as such, will not relieve the owner of liability, since a mine
boss* duties, under the act of 1885, do not comprise the hiring or discharge
of men. Weuver v. Iselln. IGl Pa. St. asii, 2U Atl. 49.
C.I. 3J RELATIONSHIP. 275
of rules, is sufficient to exonerate him from violation of tlie duty he
may owe third persons. '^The master/' said Lord Granworth, in
Bartonshill Coal Go. y. Ried,*'^ '4s considered as bound to guaranty
third persons against all hurt arising from the carelessness of him-
self or of those acting under his orders in the course of business.''
The famous reason assigned by Ghicf Justice Bhaw in Farwell y.
Boston & W. R. Gorp.*** has met with universal approval. "The
rule is obviously founded on the great principle of social duty that
every man in the management of his own affairs, whether by him-
self, his agents, or servants, shall so conduct them as not to injure
another; and if he does not, and another thereby sustains damage,
he shall answer for it." The insurance, however, is against the
commission of torts, not against the production of damages by his
servant. Thus, to charge the master for the frauds of his servant
the frauds must have all essential legal ingredients.*"
Oonnection as Cnune.
The courts which were satisfied with authority as the test, and
identification as the reason, of the master's liability for his servant's
torts, naturally did not devote much attention to the doctrine of the
master's duty, or to the doctrine of connection of the master as cause.
And while the cases in which the owner is held liable for the con-
duct of strangers dwelt on the master's original negligence, and on
tracing it to him through the third person, such courts would per-
haps seem to have overlooked the natural analogy of these cases and
of the independent contractor cases to the liability of master and
servant.
Mr. Innes has clarified the subject by insisting that a person may
act directly by himself or indirectly through instrumentalities. In-
strumentalities may be personal, as servant and agent, or imper-
«»o 3 Hacq. 266-283.
281 4 Mete. (Mass.) 49; Bigelow, I^'ad. Cas. 683.
S8S poL Torts, § 65. In cases where not the master*s premises, facilities,
nor instnunentalitles conduced to the wrong, as where there was no special
relationship between the party, existing by contract or otherwise, the benefit
of the master and the motive of the servant afford a more or less definite test
of whether the act was within or without the employment. Smith v. Webster,
23 Mich. 2d7-300; Marion v. Raihroad Co., 59 Iowa, 42&-430, 13 N. W. 415;
McOlung V. Dearbome, 134 Pa. St. 396, 19 Atl. 698.
276 LIABILITY FOR TOUTS COMMITTED BY OR WITH OTHERS. [Ch. 3
sonal, as a tiger or torpedo. If the right of another be violated, It
is immaterial whether the violation was the direct act of the per-
son sought to be charged or that of his instrumentality, whether
animate or inanimate, rational or irrational. The servant is an in-
strumentality of the master. If a duty of the master be violated,
he is liable alike whether he or his servant was guilty of the breach.
91. INDEPENDENT TORT— Under no test is the master
liable for the independent tort of the servant.
What is his independent tort is ordinarily a ques-
tion of fact for the jury.
The servant acts in an individual capacity, as a servant or as an
individual. For his torts in the latter capacity — ^for his really in-
dependent torts — ^the master is no more liable than would a parent
be for the independent torts of his child.*** But while the servant
is in the employment and commits a tort, it is not clear what devia-
tion from the course will so interrupt the relation as to make the
conduct exclusively his own, and what deviation will not allow the
master to escape liability. The early statement that a slight devia-
tion is sufficient to exonerate the master has not now the sanction
of most courts. The cases occur in classes quite distinctly marked.
In cases of assault, for example, while a carrier may be liable for
forbidden assaults upon passengers to whom a particular duty is
owed,*** the liability ceases when the duty ceases. Therefore an
assault on a passenger after he had left the train creates no re-
sponsibility on the part of the railroad company.*** Nor is the com-
pany responsible for the purely personal encounter of its employes
with persons between whom and the corporation there is no priv-
ity.*** Thus, if an engineer stops his train and pursues a boy into^
his father's house, seizes him and carries him off on the train, the
act is not in the range of the engineer's employment, and the master
t«» Hower v. Ulrich, 156 Pa. St. 410, 27 Atl. 37.
is« Baltimore & O. R. Co. v. Barger (Md.) 30 Atl. 560. Even although thc^
assault was committed in resenting an Insult. Texas & P. By. Co. v. Wil-
liams, 10 C. O. A. 463, 62 Fed. 440.
2«5 Central By. Co. v. Peacock, 69 Md. 257, 14 Atl. 709.
ase Cofield v. McCabe (Minn.) 59 N. W. 1005.
Ob. 3] RELATIOfJSHIP. 277
is not liable.**^ Nor is it liable for private quarrels between a
t)rakeman and prospective passenger, or between its surgeon and
his assistants.'*' But a master is liable for the act of his clerk in
assaulting another because he refused to pay for the hire of a bi-
cycle; *'• or of his barkeeper in ejecting a person from his sa-
loon.'** The authority of the master is not the test of liability.'*^
The same distinction is drawn in the driving cases. Where the
driver of the master's vehicle turns aside from the master's employ-
ment and engages in an independent journey, wholly foreign to his
employment, and for a purpose exclusively his own, the master is
not liable for his act. Thus, where a carman, having finished his
work, returned to the shop with his vehicle and obtained the key
of the stable, which was close at hand, but, instead of going at once
and putting up the horse, as was his duty to do, he, without his
master's knowledge or consent, took a fellow workman on a drive,
in course of which he ran over a person, the master was not held
responsible for his act, because at the time of the accident the serv-
>tT Gillian V. Railway Co., 70 Ala. 268,— and criticise McManus v. Crickett,
1 East, 106; Golden v. Newbrand, 52 Iowa, 59, 2 N. W. 537. In CandilT v.
Railway Co., 42 La. Ann. 477, 7 Soutli. 601, defendant's conductor, suspecting
deceased to have robbed a train, kiUed him. Company held not liable.
2 3» Little Miami Ry. v. Wet more, 19 Ohio St 110; Wise v. Railway Co., 91
Ky. 537, 16 S. W. 351; CampbeU v. Railroad Co., 51 Minn. 488, 53 N. W. 768;
Cofield V. McCabe (Minn.) 59 N. W. 1005; LouisvUle, N. O. & T. Ry. Co. v.
Douglass, 09 Miss. 723, 11 South. 933; Williams v. Car Co., 40 La. Ann. 87, 3
South. 631; Lackat v. Lutz, 94 Ky. 287, 22 S. W. 218; Chicago Ry. v. Mogk, 44
HL App. 17. Compare Fowler v. Holmes (City Ct. Brcok.) 3 N. Y. Supp. 816.
«39 Baylis V. Schwalbach Cycle Co. (City Ct Brook.) 14 N. Y. Supp. 033.
240 Fortune v. Trainor, 05 Hun, 619, 19 N. Y. Supp. 598; Brazil v. Peterson,
44 Minn. 212, 40 N. W. 331. Cf. Rogahn v. Foundry Co., 79 Wis. 573, 48 N. W.
669, with Smith v. Packet Co. (Tenn.)*l S. W. 104. The latter case is mani-
festly at variance with the current of authority. 38 Cent Law J. 4i7-449 (ar-
ticle by William L. Murfrec). An assault on a passengisr by a railway con-
ductor, committed in resenting an insult provoked by his own language and
conduct while acting as conductor, was within the scope of his emp^oym n'.
Texas & P. By. Co. v. Williams, 10 C. C. A. 463, 62 Fed. 440. So eject on,
without excessive violence, by servants, under erroneous supposition that
plaiutifF was traveling wrongfuUy in carriage, is within the s. ope of servants'
authority. Lowe v. Railway Co. (1893) 5 Reports, 535.
«*i 38 Cent I^w J. 447-449.
278 LIABILITY FOB TOBTS OOMMITTBD BY OB WITH OTHEBS. [Ch. 3
ant was not engaged in the business of his master.^*' Bnt where
a driver, delivering porter by the barrel to a customer, at the request
of the customer drove to a store to get a faucet, and by reckless
driving injured another, it was held to be for the jury to determine
whether or not the driver was acting within the scope of his au-
thority.^**
The same distinction is apparent in cases of false arrest. In these
cases, as a rule, neither the master's instrumentalities, facilities, nor
property puts the servant in a position peculiarly enabling him to
commit the wrong. It was early held in New York that the com-
mand of the master, actual or implied, was the test of liability.'**
It was, however, soon recognized that it was not the command of
master, but the line or course of employment, which determined lia-
bility, and the master was held liable, although the <!onduct of the
servant exceeded authority and was something the masterhad not au-
thorized.**" Thus, to illustrate what is and what is not in the course
of employment, it was held that the ticket agent who received good
money from one whom he suspected to be a counterfeiter, and there-
upon caused his arrest, was acting in his capacity as a good citizen
842 Mitchell V. CrassweUer, 13 C. B. 237; Rayner v. Mitchell, 2 C. P. Div.
357; Storey v. Ashton, L. R. 4 Q. B. 476; Aycrigg's Ex'rs v. New York & B.
Ry.. 90 N. J. Law, 400; Douglass v. Stephens, 18 Mo. 362; Thorp v. Minor, 109
N. C. 352, 13 S. E. 702; Moore v. Sanbome, 2 MicK 520; Courtney v. Baker, 60
N. Y. 1; Sheridan v. Gharlick, 4 Daly (N. Y.) 338; Lee v. Nelms, 57 Ga. 253;
Gavanagh v. Dinsmore, 12 Ilun, 465; Stone v. Hills, 45 Conn. 44; Mott v. Con-
sumers' Ice Co., 73 N. Y. 543; Joel v. Morrison, 6 Car. & P. 501.
243 Guinney v. Hand, 153 Pa. St 404, 26 Atl. 20. Where a servant sent to get
a load, on his return, for the purpose of calling at a shop on his own account,
goes somewhat out of his usual route, and leaves the team unhitched whUe he
goes into the shop, the master will be liable for an Injury to a person from the
running away of the team; the senrant's acts being in the execution of the
master's business, though deviating somewhat from the line of his duty.
Ritchie V. Waller, 63 Conn. 155, 28 Atl. 29. Qulnn v. Power, 87 N. Y. 535;
Flint V. Norwich & N. Y. Transp. Co., 34 Conn. 554; MulvehiU v. Bates, 31
Minn. 364, 17 N. W. 959; Joslin v. Grand Rapids Ice Co., 50 Mich. 516, 15 N. W.
887; Venables v. Smith, 2 Q. B. Div. 279; Patten v. Rea, 2 C. B. (N. S.) 606;
Whatman v. Pearson, L. R. 3 C. P. 422.
24* Mali V. Lord, 39 N. Y. 381; Lafltte v. New Orleans, C. & L. R. Co., 43 La.
Ann. 34, 8 South. 701.
2*8 Lynch v. Railroad Co., 90 N. Y. 477.
Gb. 3J RELATIONSHIP. 2f79
desiring the punishment of crime, and not in the employment of the
railroad company.'** But where a ticket agent, having disputed
with one as to the amount of change passed to her, followed her t(^
the platform, charged her with passing counterfeit money and a»
being a prostitute, and detained her on the platform, it was held
that the agent was engaged in the company's employment in endeav-
oring to protect and recover its property, that the tort was not his
independent wrong, and that the company was liable.**^
The question of what is within and what is without the course of
employment, what is and what is not an independent tort of the
servant, it seems, cannot be referred to any very definite rule. Each
case rests on its own facts.*** Whether the given conduct is within
the course of employment is a question of fact ordinarily, for the
jury; **• but where there is no evidence that the given conduct was
246 Mulligan V. New Tork & R. B. Ry. Co., 129 N. Y. 606, 29 N. E. 952; Davis
V. Honghtelin, 33 Neb. 582, 50 N. W. 7G5; AUen v. RaUroad Ck>., L. R. 6 Q. B.
iS6; Stevens v. Hlnshelwood, 65 J. P. 341; Bdwards v. Railroad Co., L. R. &
0. P. 445.
S4T Palmeri v. Manhattan Ry. Co., 133 N. Y. 261, 80 N. B. 1001; Fortune v.
Trainor (Sup.) 19 N. Y. Supp. 598 (assault and arrest); Smith v. Webster, 28-
Mlch. 298; Oakland City Agricultural & Industrial Soc v. Bingham (Ind. App.)
31 N. E. 383; Barden v. Felch, 109 Mass. 154; Oameron v. Pacific Exp. Co., 48
Ma App. 99; Kolzem v. Broadway & S. Ave. R. Go. ((Dom. PI. N. Y.) 20 N. Y.
Supp. 700; Dnggan v. Baltimore & O. Ry., 159 Pa. St 248, 28 Atl. 182» 1H6;.
Staples V. Schmid (R. I.) 26 Atl. 193.
s«s Smith V. Spitz, 156 Mass. 319, 31 N. B. 5; Haehl v. Wabash R. Co., 119"
Mo. 325, 24 S. W. 737; Guinney v. Hand, 153 Pa. St 404, 26 AtL 20; Bninner
V. Telegraph Co., 151 Pa. St 447, 25 Aa 29; Chicago v. Bixby, 84 lU. 82.
S49 LAng V. New York, L. E. & W. R. Co. (Sup.) 30 N. Y. Supp. 137. Where
railroad employes are charged, in addition to other dnties, with seeing that
refuse materials are properly disposed of, it cannot be said, as a matter of
law, that such servants are not acting within the scope of their employment
when engaged in placing old timbers, formerly nsed by the railroad, on a
highway, the fee to which land is in the company. Tinker v. New York, O.
A W. R. Co., 71 Hun, 431. Distinguishing Mulligan v. New York & R. B,
Ry. Co., 129 N. Y. 506, 29 N. E. 952; Pittsburgh, F. W. & C. R. Co. v,
Maurer, 21 Ohio St. 421; Dells v. Stollenwerk, 78 Wis. 339, 47 N. W. 431.
Quoting PhUadelphia & R. R. Co. v. Derby, 14 How. 482. Reviewing Quinn
V. Power, 87 N. Y. 537; DwineUe v. New Yoric Cent & H. R. R. Co., 120 N. Y.
117, 24 N. E. 319; Johnson v. Armour, 18 Fed. 490; American Ins. Co. v,
Crawford, 8d lU. 62; Poulton v. Railway Co., L. R. 2 Q. B. 534; Plttsburghr
C, C. A St L. Ry. Co. v. Henderson (Ind. App.) 36 N. *E. 377; Goff v. RaU-
W} txxxiuz^ rost z'^^cT^ .i^«&:mi> bt oft wrrH othkxs. jjCh. Z
to ciMrae «f €KpIojiiM»t. die coart naj take tbe cue friM Ike
SAMBr^MASTKBn UABTUTT TO SKKVAST.
92* Tbe nuwter is liable in tort to Us mearwmnt tar may
breacli of duty to Us wtrwwat TBtnJtiiig in damage
not exclitaiTely eoBeendng payment of wages or
afber consideratioii InwtA^ed in the relationahip.
A mairter oir€;e to the ■erraat tike mme duty to respect his person,
fr^e^lofn of locomoticA^ repotatiaii, pruperljy and tiie like wliidi he
owes third persons, from the riolation of wliidi an acticm ex ddicto
arises, lint he ow#-s to the i^ervant certain duties al^o peculiar to
tlie relationship. If lie fail to pay the consideration for which the
senice is rendered, the action Is ex contractu. Between these two
^fxtremes, there are duties owed bj the master to the servant for the
violation of which the law inclines to determine the remedy accord-
in/^ to the law of torts, not contracts. Most of the questions in-
volved in this class of cases concern negligence^ Accordingly, their
consideration is postfioned until that specific wrong is treated.
8AMB— SEBVAirrS I«IAB£LITY TO SEBVAJffT.
93« One aerrant may sue another for torts committed in
the course of the common employment.
It was said in Houthcote v. Stanley: '•* "Neither can one servant
maintain an udion against another for negligence whilst engaged
in their common employment" In Massachusetts, it was distinctly
way Co., 80 L. J. Q. B. 148; Bay lis v. Schwalbacb Cycle Co. (City Ct
BnHik.) 14 N. y. Bupp. 933; Wise v. Covington & C. St. Ry. Co., 91 Ky. 537,
10 H. W. 851.
90" TowaiulA Coal Co. v. Heeman, 86 Pa. 418; Bank of New Soutb Wales
v. Owxton, 4 App. Cos. 270.
ifti 1 Hurl. & N. 247 250 (1850). As to tills case, see Watlin; v. OasUer,
L. U. 0 lOxcli. 73; Tebbutt v. Bristol & Exeter Ry. Co., L. R. 6 Q. B. 73;
Kmnclii V. (^ockrcll, L. It. 5 Q. B. 184; Holmes v. Northeastern Ry. Co., !£
n. 4 ICxch. 25-1; Williams v. Groncott. 2 Bos. & P. (N. R.) 419; Submarine
Tol. Op. v. DlxnoD, 3 Bon. & P. (N. R.) 572; White v. Pliilips, 15 C. B. <N. S.)
245.
^h- 3] BKLATIONSHIP. 281
held, in Albro v. Jaquith,"* that one servant is not liable in action
by another servant in the employment of the same master for dam-
age occasioned by the negligence of the first in snch employment.
The court proceeded on the reasoning of Lord Abinger in the case
of Winterbottom v. Wright,*" and on the ground that there was no
misfeasance, but merely nonfeasance, for vehich no action lay.***
The doctrine of these cases has, however, been generally rejected.***
It has been aptly pronounced "a judicial aberration." In Osbomt
V. Morgan,* •• it was distinctly overruled by the supreme court
of Massachusetts. The true theory seems to be that the right of ac-
tion does not rest in contract, but sounds in tort It is based on a
duty owed by members of a community to each other. In the little
community of the employes of the same employer upon the same
general undertaking, the common duties of man to man in society
generally should continue to exist, and, as a consequence, liability
for breaches of them.***
sfts 4 Gray, S9 (1855).
«B« 10 Mees. & W. 109, 115.
254 How enduring are faUacles based on reasoning upon verbal distinc-
tions will appear on the surylval of the rule as to nonfeasance in Bums v.
Pethcal, 75 Hun, 437, 27 N. Y. Supp. 489.
SBB Wiggett V. Fox, 11 Exch. 832; Degg v. Hldland By., 1 Hurl. & N. 773;
Swainson v. Railway Co., 3 Exch. Div. 341; Haddow v. Roxburgh, 2 Ct.
Sess. Cas. (3d Ser.) 748; Rogers v. Overton. 87 Ind. 410; Hinds v. Harbou,
58 Ind. 121; Hinds v. Overacker, 66 Ind. 547; Griffiths v. Wolfram, 22 Minn.
185; Daves v. Southern Pac. Co., 98 Cal. 19, 32 Pac. 708; Hare v. Mclntlre,
82 Me. 240.
sft« 130 Mass. 102.
SB8 Breen v. Field, 157 Mass. 277, 31 N. B. 1075; Hinds v. Harbou, 58 Ind.
121; 2 Thomp. Neg. 10(S2. Suit may be brought by a servant against the
master's wife as fellow servant for injuries sustained in using, at the wife's
bidding, a ladder known to the wife to be unsafe. Stelnhauser v. Spraul,
114 Mo. 551, 21 S. W. 515, 859. Where the section crew of a railroad com-
pany side-track a hand car with which they are working to clear the main
track for an approaching train, and the section foreman, who has unlocked
the switch, negligently falls to close it, and the train entera on the side
track, and kills a section hand, the section foreman is personally liable in
damages for his death. Daves v. Southern Pac. Co., 98 Cal. 19, 32 Pac. 708.
2{»2 UAnuTT worn tokd oomfrnzD bt ok with othkb. £Ch. S
iTABfTiTTT OF 8XBFABT TO
94. The flerrant is UaUe to the master for oanduct
fal to the master.
96. The servant is liable to the master for breach of dur
ties peculiar to the lelatianahip^ consistJng in taOr
(a) To be loyal to his trust.
(b) To obey instniGtioii&
(c) To exercise doe care.
(d) To account for money and property.
96. Where the master has been conipelled to pay out
money tor the wrongflil and forbidden conduct of
the servant, he may by legal process compel reim-
bursement from the latter.
The liability of the serrant to the master, apart from the liability
peculiar to the relationBhip, is that of the aerrant to ao j third per-
aoD.
The servant owes to the master the datyof being loyal to his tmst'**
Thus, in a contract for service there is an implied agreement on the
part of the servant that he will do nothing injorioos to his employ-
er's interest, and that he will be gnilty of no criminal misconduct.
This duty is violated if the servant sednce the daughter of his em-
ployer.*** Similarly an agent is liable for conversion.**^ The
agent is bound to obey his instructions. If he fails so to do, he is
liable for the injury which may ensue, unless the act be illegal or
immoral.**' Thus, if an agent who was instructed to collect a claim,
in a certain prescribed way, ignores his instructions, tries other
means, and the claim is lost, he must make such loss good in dam-
90t This division of the servant's duties is taken from Mech. Ag. bk. 4.
The remaining duties of the servant or agent, vie to account for money and
property, and to give notes, would not give rise to an action on the tort
a«o Blxby v. Parsons, 49 Conn. 483.
a«i Greenleaf v. Egan, 30 Minn. 316, 15 N. W. 254.
t«a Brown v. Howard, 14 Johns. (N. Y.) 119; Davis v. Barger, 57 Ind. 54.
Ch. 3] RELATIONSHIP. 283
age.**' The degree of skill which the servant is bound to exercise
will be subsequently considered. The servant is liable to the mas-
ter for his negligence, for example, in making loans.*** So, if an
agent to collect rent and rent premises fails to exercise reasonable
care in so doing, he is liable.*** Such agent may be liable for failure
to effect insurance.*** So recovery may be had against an agent for
failure to collect, where it is shown that the debtor was solvent
and that with proper exertion the claim could have been collect-
ed.**^ The agent is bound to account to the principal for the money
and property of the latter intrusted to him.*** And a proceeding
against an agent for an accounting in equity may be joined with
a charge of conversion of the principars property.***
The servant is liable to the master for all damages which the
master has been compelled to pay because of the wrongful act of
the servant to a third person.*^* Thus, if a conductor maltreat and
damage a female passenger, and the railroad company is compelled
to pay for such damage, it can recover from the conductor the
amount paid, including the costs and counsel fees involved in the
proceedings.*'* Where two or more servants acting independently
of each other are all at the same time guilty of a wrong which con-
^•^ Butts V. Phelps, 79 Ma 802; Leveson v. Klrke, RoUe, Abr. 105; Cro.
Jac 205.
294 Inhabitants of Westfleld v. Mayo, 122 Mass. 100; Kennedy v. McOlain,
146 Pa. St 63, 23 Atl. 822; Stewart v. ParneU, 147 Pa. St 523, 23 AU. 838;
Brooklyn v. Railway Co., 47 N. T. 475; Friesenhahn v. Bushnell, 47 Minn.
443, 50 N. W. 507.
s«s Klrkeys v. CrandaU, 90 Tenn. 532, 18 S. W. 246; Fahy v. Fargo, 61
Ann, 628, 17 N. Y. Supp. 604; Id., 63 Hun, 626, 17 N. Y. Supp. 344.
>•• Storer v. Eaton, 50 Me. 219; Shoenfeld v. Flelsher, 73 111. 404.
s«T Wiley v. Logan, 95 N. G. 358; BneU v. Gbapin, 99 Mass. 594; Reed v.
Northnip, 50 Mich. 442, 15 N. W. 543.
*99 Mechem, Ag. fS 522^537.
*•• Greenleaf v. Egan, 30 Minn. 316, 15 N. W. 254.
>7o Where a natural gas company pays judgments obtained against It for
damages caused by an explosion resulting from leakase of its gas main, it may
recover the amount thereof from a traction company which excavated about
the main and filled the excavation in such a negligent manner as to allow the
main to settle and cause the leakage. Philadelphia Ck>. v. Central Traction Co.,
165 Pa. St 456, 30 Atl. 934.
271 Grand Trunk Ry. Co. v. Loitham, 63 Me, 177.
284 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3
tributes to the injury of the master, all, any, or either of them are
liable to the master to the full extent They are joint tort fea-
8or&*^' The servant, however, is not liable if the principal is also
negligent.'^' The master may use damage he may wrongfully have
suffered because of his servant's conduct as a set-off to a claim held
by the servant against him.*^*
97. Whether an agent is liable to the principal for the
torts of a subagent depends principally on the na-
ture of the contract. The tendency is to enlarge,
not to narrow, the liability.
Where the agent or servant has employed a subagent or nnder-
servant, there is much confusion in the cases as to whether such
intermediate contractor is liable for the wrong of his employ^ or
whether the responsibility is limited to the wrong-doing subagent
and underservant and to the original master or principal.*^* Justice
Blatchford, in Exchange Nat. Bank v. Third Nat Bank,*^* has stated
with clearness the true principle of the law on this point: ^^The
distinction recurs between the rule of merely personal representa-
tive agency and the responsibility imposed by the law of commer-
cial contracts. This solves the difficulty and reconciles the ap-
parent conflict of decision in many cases. The nature of the con-
tract is the test. If the contract be only for the immediate services
of the agent and for his faithful conduct as representing his prin-
cipal, the responsibility ceases with the limits of the personal serv-
ices undertaken. But where the contract looks mainly to the thing
to be done, and the undertaking is for the due use of all proper
means to performance, the responsibility extends to all necessary
and proper means to accomplish the object, by whomsoever used.''
It was accordingly held in this case that where a Pittsburg bank
sent a draft to a New York bank, and the latter to a Newark bank
371 Zulkee v. Wing, 20 Wis. 408. But see, as to independent public officer,
White V. Inhabitants of PhUllpston, 10 Mete. (Mass.) 108.
«78 Sioux City & P. Ry. Co. v. WaUter, 49 Iowa, 273.
SY4 Challiss V. Wylie, 35 Kan. 606, 11 Pac. 438.
trs St Nicholas Bank v. State Nat. Bank, 33 Cent. Law J. 206.
tTf 112 U. 8. 276-290, 5 Sup. Ct. 141.
Gb. 3] RELATIONSHIP. 285
for collection, the New York bank was held liable to the Pittsburg
bank for the carelessness of the Newark bank.
While there is mnch uncertainty in the litigated cases,*^^ the gen-
eral principle seems to be that a bank receiving commercial paper
for collection is, in the absence of a special agreement, liable for
loss occasioned by the wrong of a corresi>ondent or agent selected
by it to effect the collection.*** A distinct line of cases, however,
holds that where the nature of the business in which an agent is
engaged requires for the purpose of a reasonable execution the em-
ployment of a subagent, the principal agent is not responsible for the
default of the subagent, provided a proper subagent is selected.* *•
Where a servant hires laborers for his master, he is not responsible
for their negligence. Either the laborer who does the negligent act
or the master, or both, may be sued, but not the servant hiring.**^
Btit a clerk who directs them, or a contractor who employs them^
may be liable.*'*
ST7 The cases are collected in Bzchange Nat Bank v. Third Nat Bank, 112
U. S. 276, 5 Sup. Ct 141. See, also, Montgomery Go. Bank v. Albany City
Bank, 7 N. Y. 459-464; Marine Bank y. Rusbmore, 28 111. 463; Ide v. Bremer
Go. Bank, 73 Iowa, 58, 34 N. W. 749, distinguisbing Guellch v. National State
Bank, 5(; Iowa, 434, 9 N. W. 328; Gbeen v. Johnson, 90 Pa. St 88; Naser v.
First Nat Bank, 116 N. Y. 492^%, 22 N. B. 1077; Gom Excb. Bank v.
Farmers' Nat Bank, 118 N. Y. 443, 23 N. B. 923; Wbeatland v. Pry or, 133 N.
Y. 97, 30 N. E. 652.
S78 National Bxcb. Bank v. Beal, 60 Fed. 355; Id., 5 G. G. A. 304, 55 Fed. 894;
British & A. Mortg. Go. y. Tibballs, 63 Iowa, 468, 19 N. W. 319; Warren
Bank y. Suffolk Bank, 10 Gusb. 582. A mercantile agency tbat received a
draft for collection is responsible for tbe failure of its agent to pay over tbe
proceeds in tbe absence of any restriction on its liability. Bradstreet v. Bver-
son, 72 Pa. St 124; Morgan v. Tener, 83 Pa St 305; Siner y. Steame, 155 Pa.
St 62, 25 AtL 826.
270 Fabens v. Bank, 23 Pick. 330; Dorcbester & M. Bank y. New England
Bank, 1 Gusb. 177; Darling v. Btanwood, 14 Allen, 504; Barnard v. GofDn, 141
Mass. 37, 6 N. E. 364; Warren Bank v. Suffolk Bank, 10 Gusb. 582; Dun v.
Gity Nat Bank of Birmingbam, 7 G. G. A. 152, 58 Fed. 174.
a«o Stone v. Gartwrigbt 6 Term R. 411.
«■! Wilson v. Peto, 6 Moore, 47.
2^ lAASti- ,:'{ FOa SOKB 'ir^KM.rTEIi BT '^a WTTK -^TSSaB. 7*.^- ^
L.-'
•An-^UABIUTT OF flXBTAJn TO THIKD
▲ MTTMit ki Bable to ddrd pctsons act is
of li&i master, tar mH irfolatkxis cf dntj^ Ymj
and, it iFoiiId appaar, from
narllx 'wbatliar awthcwrigad or ima ii ilwriMwi by Ids
maater. Actually imdertaldii^
to do would not make the aerrant liable to
persona, may create a dnty on Ida part to perflirm.
tliat work property*
fA/it/i)ily //>r M'tAUjfmurjt and Maifensnnce.
The Nerrant Ui clesirlj liable for minfeaaance and for malfeaaanoe.
ft hi* eondaet ia tortiouay ordinarilj the authorhj of hia maater is
no def^ffine.^*' ^or the warrant of no man, not eren of the king,
r'iin exctiM; the doinf( of an illegal act; for although the conunand-
^TM are tre^rpanfierK, no also are the persons who did the act" '"
Knt wh#;re the mental attitude ia of the esseuce of the wrong,
ignorance on the part of the seryant of the injnry he was com-
mitting maj exonerate him. Thns, in cases of fraud, if he make a
falne representation^ not knowing it to be untme, but because his
ittnnio.r dirf»(;tf*d him, he will not be liable.^'^ Bnt if he make the
n«|)n*Mentution l<nowing it to be false and fraudulent, he is liable
in diunuges.'** One who wrongfully assumes to sell land as the agent
for ttie owner is liable in damages to the person whom he de-
<!<jives, for any Imiirovements made.'**
«»■ Vwlilun V. Htnlth, 1 \Vll8. 828; Stephens r. BlwaU, 4 Biaule & S. 250;
Knt'tfbrollKrr v. Aniiloy, 1 Cninp. 343; Morse y. Slue» 1 Vent 238; Nussbaum t.
llMtlbi'on, Oil On. U12; Knight v. Luce» 116 Mass. 586; McPheters v. Page, 83
Mo. 2»l, 22 All. 101; KliubnU ▼. Billlnffs, 55 Me. 147; Permlnter y. KeUy, 18
A lit. 710; J()«»olyn v. McAlll«ter, 22 Mich. 209; Wright v. Eaton, 7 Wis. 405;
'riiorp V. Hiuilntf, 11 Johnn. 285; Burnap v. Mareh, 13 111. 535; City of Dulnth
r. Mnllott, 4a Minn. 2<vi. 45 N. W. 154; GuUen y. Trustees, 4 Macq. 424-432:
Mm^honi, Ak. I 571, coUcH'tlng cases.
»«« HiuhIn v. (Ihtld. 8 Uv. 352, 4 Mod. 76.
»M Auto, p. 272, **Torts Consented to by Master."
••• (Mark r. liovprlng. 37 Minn. 120. 33 N. W. 776; Story, Ag. § 310.
• •• Hkiuimna t. Klunognn. 32 Minn. 107. 19 N. W. 729. And see Clark y.
LoYorlnir. 37 MUin. 12i), 38 N. W. 776.
Ch. 3] BBIJITIONBHIP. 287
As to liability of the servant for conyersion, it is quite dear that
if the owner of personal property consent to its taking by the serv-
ant, the latter is not liable. If, however, the master converts
it,"' and the agent or servant who, acting solely for his principal
or master, and by him directed, and without knowing of any wrong,
or being guilty of gross negligence in not knowing of it, disi>08e8
of, or assists the master in disposing of, the property, which the
latter had no right to dispose of, he is not thereby rendered liable
for the conversion.***
Liability for Nonjea$ance.
According to Judge Story,*** '^The agent is also personally liable
to third {M^rsons for his own misfeasances and positive wrongs. But
he is not, in general (for there are exceptions), liable to third per-
sons for his own nonfeasances or omissions of duty in course of his
employment His liability in these latter cases is solely to his prin-
cipal, there being no privity between him and such third persons,
but the privity exists only between him and his principal." *** The
rule comes from the famous saying of Lord Holt, in Lane v. Bir R
Colton: *•* ^'A servant or deputy cannot be charged for neglect, but
the principal only shall be charged for it; but for a misfeasance an
action will lie against a servant or deputy, but not as a servant or
deputy, but as a wrongdoer." Blackstone furnishes a favorite illus-
tration: ^ a servant • • • by his negligence does any damage
to a stranger, the master shall answer for his neglect If a smith's
servant lames a horse while he is shoeing him, an action lies against
SS7 suver v. Martin, 50 N. H. 580.
2SS Leuthold v. FalrchUd, 35 MimL 99-111, 27 N. W. 603. and 28 N. W.
218. And see Porter v. Thomas, 23 Qa. 467.
<•• Story. Aff. c. 12, S 308.
S90 To the same effect, see MacdouneU, Mast & S. 264; 2 Thomp. Neg. 1057;
Harriman v. Stowe, 57 Mo. 93; Lottman v. Bamett, 62 Mo. 169; Henshaw v.
Noble, 7 Ohio St 226. And see Reid v. Humber, 49 Ga. 207; Guernsey v.
Ck>ok, 117 Mass. 548; Brown Paper Go. v. Dean, 123 Mass. 267; Dayton v.
Pease. 4 Ohio St 80; Henshaw v. Noble. 7 Ohio St 226. But see Davis v.
Vernon, 6 Q. B. 443; Granch v. White. Bin^?. N. G. 414.
a»i 12 Mod. 796, 488. Et vide Woodward, J., in New Yorlc A W. P. Tfel.
Go. V. Dryburg, 35 Pa. St. 298-303. Bt vide Ring. Torts, 50.
"i^ iLi^"^ iiiT "III* •«'Ta' ' =■- 2.ir
T 3C"3l'7::u*: -rf
'^,'1.'I
<^r:T ^ii,-i be o
ifid
tv««s a:c!
it'tmtkwf^ uoLj i£T<i^Te. al*x to
the Mwtmt, vLDe vmz^^ Ib tJae pcrf otsumx of
4o mnDff<LlDts wtJch it vas hU durj to do. nDdcr tbifr
i^A t«ke that precmntioii, 4r^« oot exercise that care,
f<c tlie rijifliU of otbert reqalmL AH this is not doi£«; but it im
^Au% of tldit wb^^b is imposed npoo the a^est mereiT bj Tirtne of his re-
l^tU/tM, but of tbat which is imposed upon him by law, as a re.-paiis ble irdi-
rUJo/il, in cy/turo^m with all other members of society. It is the same not d»-
Inic whlrh coijxtitutes ar^ionable negiigence in anj relation.** Mz: Wi.a.t3n
(Wlisirt Sf*Z' I •Vi.Si insiists thst the distiDction, in this class of cases, be-
tvie^ii Donfeanaiice and miJtfeasaiK-e. can no looser be sostained; that tlie
ime doctrine is that when an agent is employed to woi^ on a paiticiilar
iUUix, and has surrendered the tldng In question into tlie principal's hands,
then the agent ceases to be liable to third persons for hart recelred by th^n
from snch things, though the hart is remotely dtie to tlie agent's negligence.—
the reason being that the caasal r^atlon between the agent and the person
litirt Is brolcen by the interposition of the principal aa a distinct center of
legal resprmslbilities and daties, bat that wherever there is no sach inter-
ruption of casual connection, and the agent's negligence directly injares a
■tmngor, the agent haying lilwrty of action in respect to the injury, then
such stranger can recover from the agent damages for the injury- And see
Husw. Van. InJ. 308«
Ch. 3] RELATIONSHIP. 289
game of logomachy. Thus, in Bell v. Josselyn *•* it was said that
failnre of "defendant to examine the state of the pipes in a house
before causing the water to be let on would be a nonfeasance; but
if he had not caused water to be let on, that nonfeasance would not
hare injured the plaintiff. If he had examined the pipes and left
them in a proper condition, and then caused the letting on of the
water, there would have been neither nonfeasance nor misfeasance.
As the facts were, the nonfeasance caused the act done to be a mis-
feasance. The plaintiff suffered from the act done, which was no
less a misfeasance by the reason of its being preceded by a nonfea-
sance."
Tlie futility of such reasoning on tlie word "nonfeasance'' appears
fully from the lack of definitiveness of the meaning to be given the
term.*'* This solemn legal jugglery with words will probably dis-
appear "if the nature of the duty incumbent upon the servant be
considered." *•• If the servant owe a duty to third persons, derived
from instrumentality likely to do harm or otherwise, and he violates
that duty, he is responsible. His responsibility rests on his wrong-
doing, not on the positive or negative character of his conduct A
wrongful omission is as actionable as a wrongful commission. A
driver who injures a third person by his negligence is liable.**^ So
an engineer who negligently handles fire is liable to third persons
for the damage done.*'* Selectmen of a town who ordered the build-
ing of a public sewer in one of the streets were liable for injuries oc-
casioned to a person employed by them to lay a pipe in the bottom
of a trench, by reason of their failure to provide a proper support
for the sides of the trench. The fact that the town was also liable
did not relieve them.**' Agents who have possession, charge, and
«»* 3 Gray, 300.
«»8 Cf. Blakeston's Case, 1 W. "Jones, 82.
«»• Whittaker'8 Smith, Neg. p. 200, f 7.
«»TPhelp8 V. Wait, 30 N. Y. 78; Hewett v. Swift, 8 Allen, 420; Hutchinson
▼. RaUway Go.» 6 Exch. 341.
2tt8 Gilson V. Collins, 66 111. 136. And see Bacheller v. Pinkham, 68 Me. 253.
290 Breen v. Field, 157 Mass, 277, 31 N. E. 1075; Kranz v. Liong Island Ry.
Co., 123 N. Y. 1, 25 N. B. 206; Elacilesfield y. Marquis of Londonderry, 4 Ch.
Div. 693.
LAW OF TORTS— 19
200 LIABILITY rOB TOkTS COMMITTED BV «»B WITH t/THCBS. [Cfa. 3
ntauBf^emeni of a wharf ,*•• or of a baOding ■•* which ther rent to
tenaDtn, are liable to third persons for injories done be<-aiise of
th^fir omiMnoo to correct the old, worn, utsecnre, or dangerous ccmi-
dition of the premisieflw Ho where the privilege was given to tbe
master to haol wocid through another's land, and the master directed
the sen'ant to clone the fence, and the servant passed throogh with-
out cUising it, and hogs escaped and were killed, the servant was
held liable.'**
But there are circumstances which impose no duty on defendant.
If the servant do nothing, he is not liable Thus, if the master has
agreffd with a third party to perform a certain duty, and the serv-
ant omits to perform that duty, the third jmrty complains of the
breach of contract by the master to which the servant is no party,
and there is no duty to third persons for the servant to perform.
Many cases cited in support of the distinction arise where privity
existed between the master and the third person, but not between
the servant and the third person. Thus Story cites cases of bail-
ment and delivery of goods. 80, for example, if a master directs
his servant to perform a duty (not involving a contract) imposed on
the master, but not on the servant (as, to repair a dangerous walk),
and the servant merely forbear, he is not ordinarily liable to third
fiersons for consequent harm. But, as has been seen, under some
circumstances the duty to repair might become a personal one to
him, with respect to which mere omission (or nonfeasance) will at-
tach liability. But when the servant'actually undertakes and enters
upon the execution of a particular work, he is liable for any negli-
gence in the manner of executing it. He cannot, by abandoning its
execution midway, and leaving things in a dangerous condition, ex-
empt himself from liability to any person who suffered injury by
reason of his having so left it without proper safeguards.'®' Thus,
even In cases of bailment, — for example where a mare was given
900 Baird v. Shlpman, 33 111. App. 503, affirmed 132 III. 16, 23 N. E. 384. But
an a^ent in charge of a building, who fails to make necessary repairs, is not
liable to a tenant injured by such failure. Dean v. Brock (Ind. App.) 38 N. B.
820.
aoi Campbell v. Portland Sugar Co., 62 Me. 552.
80 a Horner v. Lawrence, 37 N. J. Law, 46.
•08 Osborno v. Morgan, 130 Mass. 102.
Ch« 3] RELATIONSHIP. 291
'into a party's keeping to be broken, and was killed by the negligence
of sneh party's servant or agent, — the agent, as well as the principal,
was liable.*®*
SAMB— PARTNERS.
99. In order fhat responBibility be attached to a partner
with respect to a tort, it is necessary either —
(a) That he should have authorized it or joined in its
commission in the first instance;
(b) That he should have made it his own by adoption;
or
(c) That it should have been committed by his copart-
ner in the course and as a part of his employ-
ment.**
Where a partner authorizes the commission of a tort, he has
done it himself, and is of course liable. So, where he joins in its
commission, his liability is rather that of a joint tort feasor pure
and simple, because of participation, than that of a partner be-
cause of relationship.*** Indeed, the partnership relation would
have no connection as cause of the wrongdoing. Ketention of ben-
efit derived from a partner's unauthorized tort will attach liabil-
ity to all partners.'®^ The only questions involving difficulty as
to the liability of partners, therefore, are those where the liability
arises from the relationship. It has been recognized generally bj
U'xt writers that the law of partnership is a branch of the law of
agency. Consequently it is said that a partner, like a principal,
IS not liable for the willful acts of his agent, if not done in course
>f his employment and as part of his business; and this is true
not only of assault, battery, libel, and the like, but also of fraud.*'*
304 Miller v. Staples, 8 Colo. App. 93, 32 Pae. 81. Compare 3 Chit. C. & N.
214; Lane v. Cotton, 12 Mod. 796, 488.
306 Lindl. Partn. § 299.
306 Graham v. Meyer, 4 Blatchf. 129, Fed. Cas. No. 5,G73; 24 Myer, Fed.
Dec. 131.
30T Ante, p. 209, "Joint Tort Feasors"; U. S. v. Baxter, 46 Fed. 350; Bienen-
stok V. Ammidown (Super. N. Y.) 29 N. Y. Supp. 593.
308 Lindl. Partn. f 299; Cooley, Torts, pp. 535, 536; Ewell's Evans on
Agency, p. 180; Stockwell v. U. S., 3 Cliff. 284, Fed. Cas. No. 13,466.
t^2 LIABILITY FOR TORT? COMMITTED BY OR WITH OTHERS. [Ch. 3
As to what is so within and a {uut of the bnsiiiess as to attach
liability to a copartner, the causes maj not hare gone as far towards
holding to a mutual respounbilitj as in the case oi master and
serrant^ It has, however, be^n held that if one of seTeral partners
drive a coach negligently, a person injured thereby may sue the
driver in trespass^ or all the partners in case.'** Partners are
jointly liable for statements made by one of them in derogation of
a competitor, in aid of their business,'^* for misrepresentation as
to lands exchanged,'*^ for abase of tmst funds,*^* for death by the
wrongful act of a copartner,'^' and for an illegal agreement to pay
rebate.*** Similarly, where one partner acts for the firm in de-
manding illegal charges and detaining the goods until they are
paid, every member of the firm is liable in damages.'^*
As to what is not within the course, and not a part, of partner^
ship business, it would appear that a partner is not liable for the
willful act of his partner, not because it is willful, but because it
is outside of the partnership business.'** Thus, one partner is not
liable for malicious prosecution instituted by his c<^partner for
the larceny of partnership property, unless he advised or partici-
pated in it, and then only in his indi\ndual capacity.*" While,
as has been shown, the partner may be liable for the libelous
words of a copartner, still the copartner may, in connection with
the business, publish a libel for which the only responsibility is
his individually. Thus, where a fumitui*e company placarded
tot Moreton y. Hardern, 4 Bam. & G. 223; Ash worth ▼. Stanwlx, 30 L.
J. Q. B. 1S3. So, where two attorneys are in partnership, both aie Uab:e
for the unsuccessful conduct of client's business. Wam^ y. Iris weld. 8
Wend. 605; Poole v. Gist, 4 McCord, 259.
310 Haney Manurg Co. y. Perkins, 78 Mich. 1, 43 N. W. 1073.
311 8tanhoi>e y. SwafTord, 80 Iowa, 45, 45 N. W. 403. And see Gooding y.
Underwood, 89 Mich. 187, 50 N. W. 818.
812 Appeal of Ran, 144 Pa. St 304, 22 AU. 740. Of. Hawley y. Tesch, 88
Wis. 213. 59 N. W. 670.
313 Bagers y. Nuckolls, 3 Colo. App. 95, 32 Pac. 187.
81* McEwen y. Shannon, 64 Vt. 583, 25 Atl. 661.
815 Lockwood y. Bartlett, 130 N. Y. 340, 29 N. B. 257.
3i« 1 Bates, Partn. § 467.
317 Marks y. Hastings, 101 Ala. 165, 13 South. 297; Farrell y. Freidlander,
63 Hun, 254, 18 N. Y. Supp. 215.
Ch. 3] REI^TIONSHIP. 2l>o
furniture: 'Taken back from Doctor W., as he could not pay for
it. For sale at a bargain. Moral: Beware of dead beats!" — ^this
libel wad held to be the act of the individual. It had nothing to
do with the partnership. The partners other than the one actually
publishing it were not liable, unless in some way they authorized
the publication.*** A copartner is, of course, not liable for the
conversion by another partner to his own use of a third person s
property.*^* In case several persons are sued as partners for a
tort, and no partnership is established, the verdict may be against
one only, if the tort is established against him.*** Even for torts,
where liability is attached to partners because of wrong done in
course of partnership business, the injured party muy sue all the
partners, or any one or more of them, at his election.**^
»!• Woodling v. Knickerbocker, 31 Minn. 268, 17 N. W. 387; Blyth v. Flad-
gate (1891) 1 Ch. 337. But see Bienenstok y. Ammidown, supra.
ai» Stokes v. Bumey, 3 Tex. Civ. App. 219, 22 S. W. 126. Liability in re-
plevin. Tanco v. Booth (Com. PI. N. Y.) 15 N. Y. Supp. 110.
S20 Austin y. Appling, 88 6a. 54, 13 S. E. 955. And see Fay y. Davidson,
13 Minn. 523 (611. 491).
»2i Wisconsin Cent R. Co. t. Ross, 142 111. 9, 31 N. E. 412, collecting caseR
at page 16, 142 111., and page 412, 31 N. E.; Walker v. Trust Ca, 72 Hun, 334.
25 N. Y. Supp. 432. Cf. Whittaker v. Collins, 34 Minn. 209, 25 N. W. 632.
By far the ablest and clearest discussion of the liability of a partner, gen-
eral and special, for the torts of a copartner is to be found in chapter 9 of
Principles of Partnership,' by James Parsons (1889).
2'*^* ^^xJi..££>^ .-la .JAiT 1. »: ■!? ■■ i.i.: .ri i-ul 3:si=s^ '.li. 4
I," -N :v,,^, : » - i/.x:T^r:i- ♦ .ff lixaxnm'
JVC 2:^ Ti:"»r-
TM g:
]00< UMhOHj tar torts may be diMhaiged or limited
efOier—
f n; Bjr TohmteJir act at the pei^; or
(h; Bjr operatUm of law.
Tttf AinlUt^riUm Udwfi^fu diifcharge by act of parties aod fliacharge
hjt ^flf^'i'fit\fm 4ff law in oprm to eritidam, inaamach aa the law only
ifjft'rHUm in *'JHtimu:tUm with fiome act of the partie& NeTertheleas
Mm* ^liMHfirf i^m In fira/rtically nuefoL
Thi' HlN^'hfirK^' *f^ tortH nuiy conveniently be divided, for consider-
HiUtiif into iUm'.Ufirp^t^ of ordinar}' torts as distinguished from joint
lorin» Mniiy rorMhlerationH are common to both. Those peculiar
Ui Joiiif iitvin will \Hi Mf'parately considered
DinaUATLGE OB LIMITATION BY VOLUNTABY ACT OF
PABTY.
101. Liability for torta la diaoharged or limited by ▼olun-
tary aot of the party —
(aj By waiver; or
<b) By tfrreement.
Ch. 4] DISCHABGE OR LIMITATION BY VOLUNTARY ACT OF PARTY. 295
SAME—BY WAIVEB.
102. A tort may be discharged by -waiver operating
through consent or estoppel.
Much of the uncertainty and confusion which arises in connection
with the doctrine of waiver might, it would seem, be eliminated by
bearing in mind, in each case, that waiver may be based either upon
contract or estoppel. If it is based upon contract, the questions are
as to parties, construction, and consideration. These will be subse-
quently discussed. If it is based upon estoppel, the questions are
of fact, especially with reference to the altered position of the par-
ties consequent upon the conduct claimed to operate by way of es-
toppel. Knowledge of the existence of a right, and the intention
to relinquish it, must concur, to create an estoppel by waiver.^ Ac-
ceptance of a benefit, with knowledge of wrong done, may discharge
1 HamUton v. Home Fire Ins. Co., 42 Neb. 883, 61 N. W. 03. Generally, as
to waiver and estoppel, see Matlock v. Reppy, 47 Ark. 148, 14 S. W. 546. In
EUls V. Newbrongh (N. M.) 27 Pac. 400-494, Judge Freeman has discovered a
new species of estoppel. The plaintiff brought an action of trespass on the case,
to recover for labor expended, and damage because of hnmiliation, against de-
fendants, who organized a community called "Faithists," to be conducted on
the principle contained in the new bible Oahspe. "O, glorious Land of
Shalam! O, beautiful Church of Tae! When the appellants, the appellee,
Ada Sweet, and Nellie Jones, aforesaid, formed their inner circle, and, like
the morning stars, sang together, It matters not whether they kept step to
the martial strains of 'Dixie,' or declined their voices to the softer melody
of 'Little Annie Rooney,' the appellee became forever estopped from setting
up a claim for work and labor done; nor can he be heard to say that 'he has
suffered great anguish of mind in consequence of the dishonor and humili-
ation brought on himself and children by reason of his connection with
said defendant's community.' His Joining in the exercises aforesaid consti-
tutes a clear case of estoppel in Tae." The familiar objection to the divi-
sion of Blackstone based upon the act of the party and the operation of law,
that there is no act of the party which has effect without the operation of
the law, and that the operation of the law does not exist save upon the
acts of the party, would seem to be more verbal than real. As applied to
torts, a release of a cause of action may be fairly said to be the voluntary
act of the party. On the other hand, the discharge of a right of action
sounding in tort by death may, with substantial propriety, be called discharged
by operation of law.
296 DISCHARGE AND LIMITATION OP LIABILITY FOB TORTS. [Cfa. 4
a tort by waiving it Thufi, if a person who has been induced by
fraud and deceit to enter into an executory contract for the purchase
of personal property, to be delivered and paid for in the future, dis-
cover the fraud while the contract is still executory, and, notwith-
standing, afterwards accepts the property, under the contract, and
uses it, he cannot maintain an action for damage for the fraud, or
recoup them in an action for the purchase price of the property.*
Delay in proceeding to secure redress for the violation of rights may
bar the action, even under circumstances which would not put into
force the statutory limitations. Thus, with respect to proceedings
to lay out a highway, public policy requires that such local business
arrangements be closed up speedily.* Accordingly, where persons
claim to have discovered fraud in the establishment of a highway,
they waive the tort by delay.* It is, however, by no means estab-
lished that such delay would have the effect of barring the right to
recover damages. It seems quite clear that mere silence in the pres-
ence of a willful trespass permitted on one's property waives noth-
ing, and consents to nothing."
As has already been considered, there are many cases in which
the person against whom the wrong has been committed may waive
the tort and bring assumpsit.' For example, wherever a person
« Thompson v. Libby, 36 Minn. 287, 31 N. W, 62. And see Brewer v. Spar-
row, 7 Bam. & C. 310; Lytbgoe v. Vermon, 6 Hurl. & N. 180, 29 Law J. Excb.
164. A landlord does not waive conversion of timber by tenant, for timber
wronjffuUy cut on the demised premises, by acceptance of rent for a period
subsequent to such conyersion. Brooks v. Rogers, 101 Ala. Ill, 13 South.
386. A tort in taking property is waived by the owner, if, with knowledge
of the facts, he accepts a receipt from the wrongdoer, and afterwards claims
credit for the amount thereof. Singer Manuf'g Co. v. Greenleaf, 100 Ala.
272, 14 South. 109. In an action against a carrier for personal injuries
received by plaintiff while riding on a free pass, plaintiff is estopped to assert
that the pass was void, being issued to him as a public officer, in violation
of the law. Muldoon v. Seattle City Ry. Co. (Wash.) 38 Pac. 995.
» Wilder V. Hubbell, 43 Mich. 487, 5 N. W. 673. And see Evans v. Gulf,
C. & S. F. Ry. Co. (Tex. Civ. App.) 28 S. W. 903; Mayor, etc., of City of
Nashville v. Sutherland (Tenn.) 29 S. W. 228.
4 Limming v. Bamett, 134 Ind. 332, 33 N. E. 1098, distinguishing Overton
V. Rogers, 99 Ind. 595.
« Leber v. Minneapolis & N. W. Ry. Co., 29 Minn. 250, 13 N. W. 31.
« "Waiver of Tort, and Suit in Assumpsit," by Mr. Keener, in 6 Harv. Law
Ch. 4] DISCHARGE OR LIMITATION BY VOLUNTARY ACT OF PARTY. 297
commits a wrong against the estate of another, with the intention
of benefiting his own estate, the law will, at the election of the
party injured, imply a contract on the part of the wrongdoer to pay
the party injured the full value of all benefits resulting to such
wrongdoer; and, in such case, the injured party may elect to sue
upon the implied contract for the value of benefits received by the
wrongdoer.^ He may, however, have both an action of assumpsit
and of tort in the same transaction. Thus, where one loans money
on the faith of another's representation that he has property, and,
the borrower failing to repay the money when due, the lender sues
him for it in assumpsit, and recovers judgment, which remains un-
satisfied, and afterwards sues in case for deceit on account of the
representation, alleging it to have been false, the borrower cannot
plead in bar the judgment in assumpsit." Probably the true prin-
ciple by which to determine discharge by waiver of tort in such cases
is to refer them to estoppel by judgment*
Rev. 223-268, and chapter 3» Keener, Quasi Gont. And see Towmsliip of
Buckeye v. Clark, 90 MIcIl 432, 51 N. W. 628; ante^ c. 1.
T Bac. Abr. tit "Assumpsit," 2; Clarence y. Marshall, 2 Cromp. & M. 495;
PhUlips Y. Humfray^ 24 Ch. DIy. 439 (4G2); Lightly v. Clouston, 1 Taunt.
112; Shaw v. Coffin, 58 Me. 254; Staat v. Evans, 35 111. 455; Pearsoll v.
Chapin, 44 Pa. St. 9; Jones v. Gregg, 17 Ind. 84; Cooper v. Berry, 21 Ga.
526; Goodenow v. Snyder. 3 Iowa, 599; Elliott v. Jackson, 3 Wis. 640;
Hunnestone v. Smith, 22 Conn. 19; Stewart v. Balderston, 10 Kan. 131 (142);
Stevens v. Able, 15 Kan. 584; Read v. Jeffries, 16 Kan. 534; Tlghtmeyer v.
Mongold, 20 Kan. 90; Famson v. Linsley, Id. 235; 2 Greenl. Ev. 120; Nolan
y. Man ton, 46 N. J. Law, 231; Westcott v. Sharp, 50 N. J. Law, 392, 13 Atl.
243; Loomis v. O'Neal, 73 Mich. 582, 41 N. W. 701.
« Whittier v. CoUlns, 15 R. I. 90, 23 Atl. 47. On the other hand, an action
in trover may not bar an action on breach of contract in same transaction.
Snow V. Alley, 156 Mass. 103, 30 N. E. 091. Cf. Union Pac. Ry. Co. v. Kel-
ley (Colo. App.) 35 Pac. 923. Owners of land on which plaintiff cut logs,
of which he sold part, are not, by filing a bill to restrain further cutting, for
an accounting as to the logs already sold, and for the sale under order of
court of the unsold logs, estopped to set up title to the latter logs in a re-
plevin suit against them by plaintiff. Hogan v. Hogan (Mich.) 61 N. W. 73.
» Post, p. 321. Where a landlord elects to sue for the destruction of the
leased property, he cannot recover rent therefor after its destruction. Wil-
cox V. Cate, 65 Vt 478, 26 Atl. 1105. Where a father sues for the wages of
his infant son, employed without his consent, he thereby ratifies the hiring,
and waives the tort Involved In the harboring of the son. Hopf v. United
States Baking Co. (Super. Buff.) 27 N. Y. Supp. 217. See, also, Huggins v.
298 UUCUABGE AND LIMITATION OF LIABILITY FOR TOBTS. [Ch. 4
SAME— BY AGREEMENT.
i03. Discharge or limitation of liability by agreement will
be considered with reference to the time of making
the agreement, whether —
(a) Before damage; or
(b) After damage.
SAME— BY AGBEEMENT BEFORE DAMAGE.
104. While fSreedom of the right to contract is Ailly rec-
ognized by the courts, parties to a contract are gen-
erally, but not universally,
(a) Denied ability to so contract as —
(1) To escape liability in tort for negligence or
firaud, with respect to a duty based on con-
tract; or
(2) To determine in advance the amount of damage
which may result from such subsequent tort,
except, particularly, as to unrepeated tele-
grams.
(b) Allowed to limit liability by agreement in such
cases—
(1) By stipulating in advance the value of the prop-
erty which may be involved;
(2) By prescribing certain reasonable duties to be
performed by the injured party in the conduct
involved under the contract, and as condi-
tions precedent to right to maintain action
for damages done; and
(3) By defining the physical extent of the under-
taking.
Watford, 38 S. C. 504, 17 S. E, 303. The statement of a landowner, at a
hearing before the board of health, that he should claim no damages If the
board put a stone drain under ground through his premises, does not estof)
him from claiming damages caused by a drain on the surface of his land.
DriscoU V. City of Taunton, IGO Mass. 480, 36 N. B. 495; Anvil Mln. Co. r.
Humble, 153 U. S. 540, 14 Sup. Ct 87G.
Oh. 4] DISCHARGE OR LIMITATION BY VOLUNTARY ACT OF PARTY. 299
On the one hand, the law recognizes the absolute right of anj
person to make any lawful contract he may desire to make.^® On
the other hand, the courts reason that it is not interfering with
freedom of contract to deny, for reasons of public policy, the ability
to execute certain contracts limiting liability for torts.^^
Thus it has been generally regarded as unwise to allow any one
to contract against his own negligence. The recklessness of conse-
quences which would result from giving effect to such a provision
affords a cogent reason. Moreover, in very many classes of cases
the party to the contract insisting on limitations would be in a po-
10 ««it muflt not be forgotten that you are not to extend arbitrarily these
rules which say that a given contract is void as being against public policy;
because if there is one thing, more than another, public policy requires, it
is that man of full age and competent of understanding shall have the ut-
most liberty of contracting them, that these contracts when entered into fully
and Yoluntarily shall be held sacred. Therefore you have this paramount
public policy to consider; that you are not likely to interfere with their
freedom of contract." Thus, under a ntipulation In a bill of lading that the
company "agree to forward" and deliver the freight to the consignee, the
damages incident to railroad transportation, and loss or damage by fire or
the elements while at depot, excepted, the company is not liable for dam-
ages from those causes at depots where the cars containing freight stop
while In transit. E. O. Stanard Milling CJo. v. White Line Cent. Transit Co.,
121 Mo. 258, 26 S. W. 704. So, a condition in a bill of lading exempting the
carrier from liability for loss of fires, except such as occur by his own negli-
gence, is reasonable, and binds the consignor, though he has neglected to
read its terms. Davis v. Central Vt. R. Co., 66 Vt. 290, 20 Atl. 313. Simi-
larly, where a steamship company provides a wharf with a covered ware-
house, into which cargo is discharged, and the time and place of discharge
are easily ascertainable by consignees, an exemption in Its bill of lading
from liability for fire happening after unloading is reasonable and valid.
Constable v. National S. S. Co., 151 U. S. 51, 14 Sup. Ct. 1062. A valuable
note on the extension of the power of a railway company to make restricted
contracts in the transportation of Uve stock, not Involving questions of neg-
ligence, with numerous citations, by Percy Edwards, will be found In 38
Cent. I^aw J. 94. A review of recent labor legislation and statutory limita-
tions of freedom of contract between employer and em ploy 6, by Frederick 0.
Woodward, will be found in 29 Am. Law. Rev. 236.
11 The defense Is allowed, not for sake of defendant, but for the law itself.
Oscanyan v. Arms Co., 103 U. S. 261, 268. So a shipowner. Schulze-Berge
V. The Guildhall, 58 Fed. 796; The Hugo, 57 Fed. 403. An express com-
pany. Armstrong v. United States Exp. Co., 159 Pa. St. 640, 28 Atl. 448.
300 DIBCHAKUK AND LIMITATION OF LIABIUTY FOB TORTS. [Ch. 4-
sition to dictate absolutely to the party whose right to damages
was being contracted away; so that such a contract would really
lack the vital element of agreement, — ^volition- If carriers, tele-
graph companies, and employers generally were allowed unrestrict-
ed fre<'dom to evade responsibility in tort by agreement, the public
would be practically compelled to submit; and the questions of
legal right and wrong would be settled, not in courts, but by coun-
sel. The cases on this point arise under contract relationships, af-
fording further reasons peculiar to each relationship. It is accord-
ingly maintained that the ability to contract against negligence
varies with the relationship involved.
Common carriers have been allowed to contract against negli-
gence in some jurisdictions.^^ This right, however, has been al-
most universally denied them." Indeed, in Willock v. Pennsylva-
12 McCawIey v. Railway CJo., L. R. 8 Q. B. 57. But see Manchester S. & L.
R. Co. V. Brown, 8 App. Cas. 703, per Blackburn, J.; Peek y. Railroad Co., 10
H. L. Cas. 473; Magnin v. Dinsmore, 66 N-. Y. 168; Kinney v. RaUway Co.,
32 N. J. Law, 407, :U N. J. Law, 513; Farmers' & Mechanics' Bank v. Cham-
plain Transp. Co., 23 Vt 186; Griswold v. Railway Co., 53 Conn. 871, 4 AtL
261; Baltimore & O. Ry. v. Skeels, 3 W. Va. 556; Rathbone v. Railway Co.,
140 N. Y. 48^51, 35 N. E. 418.
i« Pavitt V. Lehigh Val. R. Co., 153 Pa. St. 302. 25 Ati. 1107. Compare
Ohio & M. R. Co. V. Selby, 47 Ind. 471, with Indianapolis, D. & W. By. Co.
V. Forsythe, 4 Ind. App. 326, 29 N. E. 1138. Et vide Kansas City, St J. &
C. B. R. Co. V. Simpson, 30 Kan. 645, 2 Pac. 821; Coward v. RaUway Co.,
16 Lea (Tenn.) 225; Woodbum v. Railway Co., 40 Fed. 731; Liverpool &
G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397-441, 9 Sup. Ct 469.
In Railroad Co. v. Lockwood, 17 Wall. 357, the following propositions wer&
laid down: (1) A common carrier cannot lawfully stipulate for exemp-
tion from responsibility when such exemption is not Just and reasonable.
(2) It is not Just and reasonable, in the eye of the law, for a common
carrier to stipulate for exemption from respcHisibility for the negligence of
himself or his servants. (3) These rules apply both to the carrier of goods
and to the carrier of passengers for hire, and with special force to the latter.
Pha'nlx Ins. Co. v. Erie & W. Transp. Co., 117 U. S. 312, 6 Sup. Ct. 750, 1176r
I'rovldence Ins. Co. v. Morse, 150 U. S. 09, 14 Sup. Ct 55. And see Alabama
G. S. U. C^o. v. Thomas, 83 Ala. 343, 3 South. 802; The Portuense. 3S
Fed. (i79; Doyle v. Fitchburg R. Co., 102 Mass. GG, 37 N. E. 770; Adams
Exp. Co. V. HaiTis, 120 Ind. 73, 21 N. E. 340, note; Johnson's Adm'r v.
Richmond & D. R. Co., 86 Va. 975, 11 S. E. 829; Hudson v. Railroad Co.
(Iowa) 60 N. W. (K)S; Thomas v. Railway Co., aS Fed. 200; State v. Western
Maryland Ry. Co., 63 Md. 433; Jones v. Railway Co., 28 S. W. 883; Hutch.
Ch. 4] DISCHARGK OR LIMITATION BY VOLUNTARY ACT OF PARTY. 30i
nia R. Co.,^' the court went so far as to hold that a stipulation in
a bill of lading that the owner, shipper, and consignef* severally
shall cause the goods to be insured, and that in case of loss the car-
rier shall have the benefit of the insurance, if such loss ^^shall occur
from any cause which shall be held to render this line or any of its
agents liable therefor," is a contract intended to protect the carrier
€arr. g 260 (collecting cases in great number); Mobile & O. R. Co. v. Hop-
kins, 41 Ala. 48G; Alabama G. S. R. Co. v. Little. 71 Ala. 611; Welch v.
Railroad Co., 41 Conn. 333; LouiBville & N. R. Co. v. Owen, 93 Ky. 201, 19
S. W. 590; Abrams v. Railroad Co., 58 N. W. 780; M'Mainuis v. Railway Co.,
4 Hurl. & N. 327; Kerby v. Railway Co., 18 Law. T. (N. S.) 658; Poek v.
RaUway Co., 10 H. L. Cas. 473; IjOuisviUe & N. R. Co. v. Grant, 99 Ala. 325,
13 South. 599 (where a release except for willful negligence did not release
for negligence of carrier or servant); Armstrong v. United States Exp. Co.,
159 Pa. St. 640, 28 Atl. 44S; The Hugo, 57 Fed. 403; Atchison, T. & S. F.
R..Co. Y. Lawler, 40 Neb. 356, 58 N. W. 968. A stipulation that the goods
shipped shall be insured, and that the carrier shall have the benefit thereof,
if the loss occura from any cause which shall render th^ caiTier liable, is
void, Willock Y. Pennsylvania R. Co. (Pa. Sup.) 30 Atl. 948; although the
carriage of goods be between different states, St. Joseph & G. I. R. Co. v.
Palmer, 38 Neb. 463, 5G N. W. 957. But where, in another state, goods are
•delivered to a common carrier for transportation into Iowa, under a con-
tract limiting its liability, valid where made, but void under the laws of
Iowa, the contract is valid, and governs the liability of the carrier, though
the loss occurs in Iowa. Hazel v. Chicago, M. & St. P. Ry. Co., 82 Iowa,
477, 48 N. W. 926. As to statutoiy regulation, see Griswold v. Illinois Cent.
R. Co. (Iowa) 57 N. W. 843; Missouri Pac. Ry. Co. v. International Marine
Ins* Co., 84 Tex. 149, 19 S. W. 459. While a condition in a free pass ex-
empting a common carrier from liability has been held valid, as in Rogers v.
Kenne1>ec Steamboat Co., 86 Me. 261, 29 Atl. 1009, the general opinion is
-otherwise. See Jacobus v. St. I'aul & C. R. Co., 20 Minn. 125 (Gil. 110).
1* (Pa. Sup.) 30 Atl. 948, citing, inter alia, Famham v. RaUroad Co., 55 Pa.
fit. 53. McManus v. Railway Co., 4 Hurl. & N. 327; Klrby v. Railway Co.,
18 Law T. (N. S.) 658; Peck v. Railway Co., 10 H. L. Cas. 473. Beckman
T. Shouse, 5 Rawle, 179; Bingham v. Rogers, 6 Watts & S. 495; I^ing v.
Colder, 8 Pa. St. 479; Goldey v. Raili-oad Co., 30 Pa. St. 242; Powell v. Rail-
road Co., 32 Pa. St. 414; American Exp. Co. v. Sands, 55 Pa. St. 140;
Pennsylvania R. Co. v. Miller, 87 Pa. St. 395; Grogan v. Express Co., 114 Pa.
St 523. 7 AtL 134; Pennsylvania R. Co. v. Raloi-don, 119 Pa. St. 577, 13 Atl.
324: Western Union Tel. Co. v. Stevenson, 128 Pa. St. 442, 18 Atl. 441;
Phoenix Pot Works v. Pittsburgh & L. E. R. Co.. 139 Pa. St. 284, 20 Atl.
1058; Buck v. Railroad Co.. 150 Pa. St. 171. 24 AtL 678; Chicago & N. W.
Ry. Co. T. Chapman, 133 111. 96, 24 N. E. 417.
302 m^UARfiK ASD MMITATI05 OK LIABILITY FOR TOBT5. [Ch, 4
against the consequences of its own negligence^ and is void a fortiorL
A provision in a contract of shipment limiting the extent of the
i'-amer's liability is inetFer-tnal where the injnry is caused bv his
gross negligence.^* The public character at the service rendered,
and the possibility of connivance between the carrier and his serv-
ants, or between either and a third person, are considerations of pub-
lic policy particularly applicable to this relation.
It has been attempted to draw a distinction in this resftect as
to telegraph companies. They have been said to be liable only for
willful default or gross negligence, and not to be measured by the
standard of a common carrier, although it is conceded that the rule
is otherwise when the message is repeated.** The true principle
would seem to be that, while they may limit liability for errors
and delays resulting from atmospheric changes, or from disar-
rangements of lihe or instruments from causes which rea^ionable
care could not avoid, they may not stipulate against their own neg-
ligence."
As between employer and employ^ it is the generally accepted
rule that an employer cannot provide by contract against dam-
ages by negligence to his employ ^.^* In New York it does not ap-
i» Wabash Ily. Co. v. BrowD, 152 III. 484, 3D N. E. 273; Root v. New York
& N. E. K. Co., 8;^ Hud, 111, 31 N. Y. Siipp. 357.
!• Grlnnell y. W. U. Tel. Co., 113 Mass. 209; Klley v. W. U. Ttel. Co., 109
N. Y. 2rn. 10 N. B. 75; Ellis v. American Tel. Co., 13 Allen, 226; 3 Suth.
Dam. 205. That a tole^raph or telephone company is a common carrier:
Delaware & A. Tel. & Tel. Co. v. State. 3 U. S. App. 30-105. 2 C. C. A. 1.
50 Fed. 077; Shear. & R. Neg. §§ 554. 555. That it is not: Express Co. v.
Caldwell, 21 Wall. 204-270; Telegraph Co. v. Texas, 105 U. S. 4<30-*04;
IMmrose v. W. U. Tel. Co., 154 U. S. 1-14, 14 Sup. Ct. 1098; Leonard v. Tele-
graph Co., 41 N. Y. 544; Breese v. United States Tel. Co., 48 N. Y. 132;
Tyler v. W. U. Tel. Co., 00 111. 421.
IT Brown V. I>orttal Tel. Co., Ill N. C. 187, 16 S. E. 179; Eleischner v. Cable
Co., 55 Fed. 7.^8 (collecting cases, page 741); W. U. Tel. Co. v. Linn, 87
Tex. 7, 2(J S. W. 400; Id. (Tex. Civ. App.) 23 S. W. 805.
18 Bank of Ky. v. Adams Exp. Co., 93 U. S. 174; Richmond & D. R. Co. t.
JoneH, 92 Ala. 218, 9 South. 276; Louisville & N. R. Co. v. Orr, 91 Ala. 548,
8 South. ;{60; Fulton Bag & Cotton Mills v. Wilson. 89 Ga. 318, 15 S. E. 322;
Railway Co. v. Spangler, 44 Ohio St. 471, 8 N. E. 467; Johnson's Adm'x v.
Richmond & D. R. Co.. 86 Va. 975, 11 S. E. 829; Kansas Pac. Ry. Co. v.
Peavey, 29 Kan. 169. As to limitation on liability of mercantile agencies
Ch. 4] DISCHARGE OR LIMITATION BY VOLUNTARY ACT OF PARTY. 303
pear that public policy forbids the exaction by a railway from its
employes of such a contract; but, in the absence of a new consid-
eration, the contract is void for that reason.^*
A limitation contained in a contract which stipulates that the dam-
ages to be recovered in cases of negligence of one of the parties to the
contract shall not exceed a certain sum, is .regarded as a discharge
from a part of the liability of negligence, and is therefore invalid
in those jurisdictions in which the right to contract against negli-
gence is denied,^® Accordingly, where a horse worth f 1,500 was
shipped under a contract providing that "the liability of the com-
pany for valuable live stock shall not exceed f 100 for each animal,'*^
it was held that this was not merely an agi'eed value of the animal,
but an attempt to limit the carrier's responsibility for negligence,
and was therefore void.^^ However, a stipulation on a telegram
blank that the company will not be responsible in damages beyond
by contract with subscriber, see Dun v. City Nat. Bank, 7 O. 0. A. 152, 58
Fed. 174, overruling 61 Fed. 160; Roesner v. Herrmann, 8 Fed. 782; Little
Rock & F. S. Ry. Co. v. Eubanks, 48 Ark. 460, 3 S. W. 808.
i» Purdy V. Rome, W. & O. R. Co., 125 N. Y. 209, 26 N. E. 255; Brewer v.
New York, L. E. & W. R. Co., 124 N. Y. 50, 26 N. B. 324. Compare Georgia
Pac. Ry. Co. v. Dooley, 86 Ga. 204, 2 S. E. 923.
«o Moulton V. St. Paul, M. & M. Ry. Co., 31 Minn. 8."). 16 N. W. 497; Louls-
viUe & N. Ry. Co. v. So well, 90 Tenn. 17, 15 S. W. 837; I^ulsvllle & N. R.
Co. V. Owen, 93 Ky. 201, 19 S. W. 590; Eells v. St. Louis, K. & N. W. Ry. Co.,
52 Fed. 903; Louisville & N. R. Co. v. Wynn, 88 Tenn. 320, 14 S. W. 311.
21 Hart V. Pennsylvania R. Co., 112 U. S. 331, 6 Sup. Ct. 151 (a leading
case). Et vide Railroad Co. v. I^oi'kwood, 17 Wall. 357; Grogan v. Adams
Exp. Co.. 114 Pa. St. 523. 7 Atl. i;j4; Lawrence v. New York, P. & B. Ry.,
36 Conn. 63; Baughman v. Railroad Co.. 94 Ky. 150, 21 S. W. 757; Eells v.
St Louis, K. & N. W. Ry. Co., 52 Fed. 903 (a leading case); Adams Exp.
Co. V. Stettaners, 61 111. 184. Cf. Western Transp. Co. v. Newhall, 24 111. 466;
Boscowitz V. Adams Exp. Co., 93 111. 523; Abrams v. Milwaukee, L. S. &
W. Ry. Co.. 87 Wis. 485. 58 N. W. 780; Rosenfeld v. Peoria. D. & B. Ry.
Co., 103 Ind. 121. 2 N. E. 344; Hart v. Chicago & N. W. R. Co., 69 Iowa, 485, 29
N. W. 597 (statute); McCune v. Railroad Co., 52 Iowa, 600, 3 N. W. 615; Kan-
sas City, St. J. & C. B. R. Co., v. Simpson, 30 Kan. 645, 2 Pac. 821; Orndorff
V. Adams Exp. Co., 3 Bush (Ky.) 194; McFadden v. Missouri Pac. Ry. CJo.,
92 Mo. 343, 4 S. W. 689 (a leading case); Richmond & D. R. Co. v. Payne,
86 Vn, 481. 10 S. E. 749; SL Louis, A. & T. Ry. Co. v. Robbins (Tex. App.)
14 S. W. 1075. In the following cases, however, such limitation has been
aUowed: Belger v. Dlnsmore, 51 N. Y. 166; Louisville & N. R. Co. v. Wynn
y>.** ;,i^ hk'</,z k^Im Lric.TiTr:^ oy Li^aiirrr r ft r-icss. [Ch. 4
tl^ ^^tk fA ti^ na^iwajre iinle>s the m^^igg ^ fvpetted at tke
•i*^*4^* 0fX\ifitiM' La* r^^^n »r:<a:n-^ hj tbe *iipr*rc«' «Hirt of the
f'f..*^ .**;«'*^ a^ r«^^iK,ii-*Me and valid." Bat thi* mp^'l^ies onlj to
t\w. p^u'U-r. U'J to rhfr i*r<.ipi*rnt." Tl^ wtoc^ <>f wh:--h rli*- sender
ttPtu\nH\u^ U a orj;«>i| tort; the re«'ip»i*=^t*s wrv^ng is a tort pare and
Tli^ r*ii^\rfpn*\\»\\\\Y mar be limired bj an exprt^^ss agreemenc made
at Ihf, tirne th'> cr>ntra/rt is exe«'at»^ [»r«^vid^ the limitatioii be
a»o. 2. \^¥h S8 T#im. 320, 14 8. W. 311 iwh^re a lin.irarioii to a apeeifie
nam wa» nn^istin*^ If^'canne of aljat»-Ti.*-Dt in fr*-ijrlii cLargey; Coward t.
fbUlr/xid r>>,, 1^; Lea iTenn.i 2:^; Balioa t. flarl-. 17 R. I. +4L 22 AiL 1113;
PaHfl/? Kxp, Co. ▼, FoUij, 4^f Kan. ATjl. 26 Pai.-. 'v;:^- A lerjctliy coUe«-ti(iD of
nnihf/r^t\(^ on the etf*^^ of the limitation of liability to a «»iie«-ifie«l amoonU
with a ffvi^w of the d*^'i»ion» of the conrt* of the sereral s^rates. Alair r.
North^ffn Par:, ft. Co., 8 Am. R. Jk Corp. R. 452 iMinn.) 54 X. W. 1U72.
4« Vhntrtm^: r. W. i:. Tel. Co., 154 U. 8. 1. 14 Snp- CL 1098l CI. Franda T.
W« T;, Tf'l. r>/, Olinn,; 50 N. W. lOTSu That a telegraph company may not limit
UabiHty, ffjT nf^Ufience tn aending a meaaaj^e, to its coat, aee Wertz y. W.
IJ, Tel. Co., 8 Utah. iSO. 33 Pac. 136; Werta t. W. U. Trf. Co., 7 Utah, 446,
27 ItLf. 172: Ayer y. W. U. Tel. Co.. 79 Me. 493, 496, 498^ 10 AiL 495; or to
50 thnea ntwh anm. Brown y. Postal TeL Co., Ill N. C. 187. 16 8. K. 179. A
review of the declNiona of the seyeral states in relation to the effect of lim-
iting tlie liability for nnrepeated meaaagea. 9 Am. By. & Corp. Rep. 748.
And where the aen^ier of an unrepeated telegram signed the c<Mnpaiiy*s blank
fornif releaKing it from liability for delay in the delivery of snch a tde-
gram, he cannot recover on the ground that the delay would have occurred
if the message bad been repeated. Birkett y. W. U. TeL Co. (Mich.) 61 N.
W. (M5. But such a stipuhition does not protect the company against lia-
bility for damages which such repetition could have no tendency to prevent
Thiyrefore, notwithstanding such a stipulation, the company win be held
liable for the failure of its operator to inform the sender of an important
incfMsago that Its line was down, or to send it by a competing line. Fleischner
V. I'flcinc Postal Tel. Coble Co., 55 Fed. 738. And see W. U. Tel. Co. v. Ly-
man, 3 Tex. (;iv. App. 460, 22 S. W. 656.
i» New York & \Va«lilngton Printing Tel. Co. v. Dryburg, 35 Pa. St 298;
Tobin v. W. U. Tel. Co., 146 Pa. St 375, 23 Atl. 324; W. U. Tel. Co. v. Lowrey,
32 Ni»b. 732. 40 N. W. 707.
»4 Ante, chniitor 1; post, p. 807, "Negligence": "Contractual Duties." How-
ever, the receiver of a message, as well as the sender. Is bound by a condi-
tion in the contract requiring claims for damages to be presented to the
tologniph company within 00 days after the day the message is filed for
. tnmHinlsslou. Findlay v. W. U. Tel. Co. (O. C.) 64 Fed. 459.
Ch. 4] DISCHARGE OR LIMITATION BY VOLUNTARY ACT OF PARTY. 305
such as the law can recognize as reasonable and not inconsistent
with sound public policy. A contract by a common carrier stipu-
lating in advance the value of the property carried, with the rate
of freight, based on the conditions that the carrier assumes lia-
bility only to the extent of the agreed value, even in cases of loss or
damage by the negligence of the carrier, has been sustained,*"* and
again held not binding.** The value must be fixed at the shipping
2» Hart V. Pennsylvania R. Co.. 112 U. 8. 331. 5 Sup. Ct. 113 (the leadinj?
case). This doctrine would seem to be accepted more or less clearly in the
following cases, in many cases as the result of statutory construction: Louis-
ville & N. R. Co. V. Sherrod, 84 Ala. 178, 4 South. 29 (but willful and
wanton negligence wiU avoid limitation); St. Louis. I. M. & S. Ry. Co. v.
Weakly, 50 Ark. 397, 8 S. W. 134 (in the absence of deceit): Scammon v.
Wells, Fargo & Co., 84 Cal. 311, 24 Pac. 284 (under the Code); Ormsby v.
Union Pac. R. Ck). (Colo.) 2 McCrary. 48, 4 Feil. 170; Overland Mail & Exp.
Co. V. Carroll, 7 Olo. 43, 1 Pac. 682; Coupland v. Housa tonic R. Ck>.; 61 Conn.
531, 23 Atl. 870; Ilartwell v. Northern Pac. Exp. Co.. 5 Dak. 463, 41 N. W.
732 (but see Hazel v. Chicago, M. & St. P. R. Co., 82 Iowa, 477. 48 N. W.
926); Oppenheimer v. United States Exp. Ck>., 69 111. 62; Rosenfeld v. Peoria
& E. Ry. Co., 103 Ind. 121, 2 N. E. 344; Adams Exp. Co. v. Harris, 120 lud.
73, 21 N. B. 340; Kallman v. United States Exp. Co., 3 Kan. 2n5; Pacific Exp.
Co. V. Foley, 46 Kan. 457, 26 Pac. 665; Little v. Boston & M. 11. Co., 66 Me.
239; HUl V. Boston, H. I. & W. R. Co., 144 Mass. 284, 10 N. E. 836 (et vide
Graves v. Railroad Co., 137 Mass. 83); Brehme v. Dinsmore, 25 Md. 328;
How. Ann. St. Mich. § 3418; Hutchinson v. Chicago, St. P., M. & O. Ry. Co..
87 Minn. 524, 35 N. W. 433 (statute); Snider v. Adams Exp. Co., 63 Mo. 376;
Harvey v. Terre Haute & L R. Co., 74 Mo. 538; Atchison & C. R. R. v. Wash-
bum, 5 Neb. 117; Westcott v. Fargo, 61 N. Y. 542; ZImmer v. New York
Cent & H. R. R. Co., 137 N. Y. 460, 33 N. B. 642 (this is a fortiori true where
the property is of a special value); Rathbone v. New York Cent. & H. R. R.
Co., 140 N. Y. 48, 35 X. E. 418; Stames v Louisville & N. R. Co., 91 Tenn.
(rr5, 19 S. W. 675; Zouch v. Chesapeake &. O. Ry. Co., 36 W. Va. 524, 15 S. E.
185 (dissenting opinion of Lucas, J.); Ballon v. Earle, 17 R. I. 441, 22 Atl.
1113; Richmond & D. R. Co. v. Payne. 86 Va. 481, 10 S. E. 749 (ef. Virginia
& T. R. Co. V. Sayers, 26 Grat. 328); Browning v. Gooiirieh Transp. Co., 78
Wis. 391, 47 N. W. 428; Boorman v. Adams Exp. Co., 21 Wis. 154 (but sea
Black V. Gooflrich Transp. Co., 55 Wis. 319, 13 N. W. 244); Johnstone v. Rich-
mond & D. K. Co., 39 S. C. Tm. 17 S. E. 512; Alair v. Northern Pac. R. C3o.,
53 Minn. 100, 54 N. W. 1072. These cases sustain the proposition. They are
to be classified according to state. Et vide Lord Blackburn in Manchester,
S. & L. Ry. Co. V. Brown, 8 App. Cas. 703-712.
2« In Pennsylvania, on the other hand, it has been held that, notwithstand-
ing the fact that rates were based on a stipulated value, the owner may
L\WOy T0KT8— 20
>
i»-%
-^--•,:i -.-'*# X, »."6j ::^':tr.' ^ -# Li^ai^irx' « .* r'.>Kr*. TCli. 4
. >#k Ir*V/ .«*v«.pt» to :::-:• •:.►- cirr^rr* r«r^* -•:' 'v for me^i-
;r^*'^*!r hr **:p ;La?>in a« •«> a;rr»-^J v^ils^. an-l will oft-iti Avoid them.**
T^^rr*- :*.*«' rr.^f&T r^.r ^^a'loci^i for tL^ •-•c-li-rt uf txsdaev wlddi
T*^ ;^ A »I;I r .-: Iz^ aiid *-rif r*:-, TLt-* a o •cur mi «arrier maj
r',^,'^ir»- a j^**'^^ -r '»> «-r.!ifono to r^ii:>«jaable mlr-s. a:» to tam to
tlie r'tu:-^ ou I'-a.ir.;^ a riir.** aiid a mayter nukv nr«|aire his servant
to o^r-y f.i.« in^rrfK'Tii.c* in dan'^^-r^fU* emplojiu^nt^ a;s to make
'o'jjWin;:^ njth a **:• k. *
T.I - j>.'i:i<i* to a ••'^nfnirt niiir j^p-^-ifj •::ertain rea,^*DaUe n*«|uitv-
fii'ir?* of ff;«- [arty roriJiflainiDg; of a f :t, after it has occarred, as
ij#'#'#-Kj*arv pr<*Miriiii;irif-fi to hi* ri;:lit to r».-«-ovtT- Thus, the claim
UfT daman^fH majr be required to be made within a certain rea^^na-
ble tirn*' aft^rr th^' alU-u^ injarr.*^ If, however, the stipulation is
tinre^i^^riable, aH to require bringing of soft within 40 days after in-
r4ii-ov*ir the a'-tual raliie in excem *ji fnirh siipoJated value. Weiller t. Peiui*
Mr1v;ififa n, Co,, lai Pa. St. 310, 19 .\tL 702 idifss«*Dtins opinion of MitcbeU,
4.f; Fanifiam r. r'am^lcn ft A. R. 0».. .75 Pa. St. o::. The same position would
<^mi t/i bavf b(*<frj hWd— not always very distinctly— In the foiowinj? caaea:
>VjUtheni Rxp. Oi. v. Seide, C7 MUs. OTjll. 7 South. :>I7; Southern Exp. Ooi
V, MooD« :5if Minn. '<rj; Chic-a^iro, St L. ft N. O. R. Co. v. Abels. tiO Miss. 1017;
f;nltf*d Ktatf-s Kxp. rn. v. Harkiniiu. 27n Ohio St. 144: The Lydian Monarch, 2^
I'wl. 298; M. P. R. Co. v. I5amej». 2 Wills-u. Civ. Cas. CI. App. rj07: Pied-
faont Mannrcr Co. v. Columbia ft G. R. Co.. 19 S. C. 3.j3 istatute; but see
ijary V. Hontliem Rxp. Co.. 4 H. C. 234); Baug^bman v. Louisville, B. ft St
L. It Co. iKy.) 21 S. W. 7ri7. Et vide LouiFrille ft X. R. Co. v. Owen. 93 Ky,
2^)1, III K. W. r,iHK
27T;iyloi-. H, ft ii. U. To. v. MoiiUoiiiery iTex. App.) 10 S. W. 178^182;
IiitiTnatloii;iI ft (I. N. U. Co. v. Anderson, 3 Tex. Civ. App. S. 21 S. W. G91;
Ft. Wortli \ I). C. It Co. V. (Jreathouse, 82 Tex. lOl, 17 S. W. 834. And see
Uofciiii V. WnlmHh It. Co., Gl Mo. App. C65.
»» Ht»e aiil«% noto 21.
a» PoMt, p. 1080, **NeKli>f<*n<'«"; "Common Carriers." A common caiTier may
limit Its 1) ability for goods sent C. O. D., while in its possession for purpose of
rnlhM'Uoti, to that of a warehouflemao. Pacific Exp. Co. v. Wallace (Ark.) 29
S. \V. 32.
'" PoHl, p. 1001, *'Ne«liKoiice"; "Master and Servant"; "Uulea."
»» Lowifi V. Great Western Ry., 5 Hurl. & N. 807; W. U. Tel. Ck). v. Jamea
(Oa.) 10 S. K. 8.3 (<J'i days within which to present claims sustained); Ex-
preMM Co. V. Caldwell, 21 Wall. 204; Selby v. Wilmington ft W. R. Co„ 113 N.
C. r,vw. 18 H. K. 88; Wolf v. W. C. TA. Co.. 02 Pa. St 83; Young v. W. U.
Ch. 4] DlSCIIAKtlE OR LIMITATION HY VOLUNTARY ACT OF PARTY. 307
jury, it will not bo onforced.**^ So the time limited within which
to present claims may not unreasonably consume the whole time
allow(?d for presenting claims." Notice to the agent before tho
removal of live stock is a reasonable requirement.'* Such require-
ment as notice of claim may, however, be waived by the carrier.*'^
The burden is on the carrier to show that the loss or injury resulted
from an excepted cause.^*
Tel. Co., 65 N. Y. 103: Western Ry. Co. v. Hanvell. 91 Ala. 340, 8 South.
CAO; Cole v. W. U. Tel. Co., 33 Minn. 227, 22 N. W. 385; Armstrong v. Railway
Co., 53 Minn. 83, 54 N. W. 1059; Soutliem Exp. Co. y. Uunnicutt. .54 MIsb.
506; Heimann v. W. U. Tel. Co., 57 Wis. 502, 10 N. W. 32; Express Cjo. v.
CaldweU. 21 WaU. 264; W. U. Tel. Co. ▼. James, 90 Ga. 254. 16 S. E. 83;
Lester v. W. U. Tel. Co.. 84 Tex. 313, 19 S. W. 256; Louisville, N. A. & C.
R. Co. V. Widman (Ind. App.) 37 N. B. 554. A collection of authorities as to
the validity of stipulations requiring notice of claim for damages. Central
Railroad & Banking Co. v. Hosselkus, 8 Am. Ry. & Corp. Rep. 401 (Ca.) 17
S. E. 838. But a telogrnpli company cannot refuse to send a telegram be-
cause the sender refuses to sign a contract with such stipulation. Kirby v.
W. U. Tel. Co. (8. D.) 55 N. W. 759. The institution of an action for dam-
ages, and Hervice of citation, within 60 days, is a sufficient compliance with
a requirement tliat a claim for damages for delay in the delivery of a tele-
gram shaU be presented in writing within that time. W. U. Tel. Co. v. Finer
(Tex. Civ. App.) 29 S. W. 66. However, on the principle that the attempt,
so often indulged in by insurance and telegraph companies, to prescribe for
themselves a law, is not one that appeals to the Judgment or commends itself
to the conscience of this court (Tyler, Ullman & Co. v. W. U. Tel. Co., 60
111. 421; W. U. Tel. Co. v. Crall. 38 Kan. 679, 17 Pac. 309; GilUs v. W. U.
Tel. Co., 61 Vt 461, 17 Ati. 73(5, and cases there cited; Johnston v. W. U. Tel.
(]o., 33 Fed. 362; W. tJ. Tel. Co. v. LongwiU [N. M.] 21 Pac. :«9), it was
held in Pacific Tel. Co. v. Underwood, 37 Neb. 315, 55 N. W. 1057, that a
requirement of presentation of claim within 60 days was an misuccessful
attempt to limit liability on the part of a telegraph company, ^ee section 12,
p. 835, c. 89a, Comp. St. Xeb.
82 Gulf, C. & S. F. Ry. Co. v. Hume, 6 Tex. Civ. App. (i53, 24 S. W. 915, 27
S. W. 110; Gulf, C. & S. F. Ry, Co. v. BUiott (Tex. Civ. App.) 26 S. W. 63(?.
And see McCarty v. Gulf, C. & S. F. Ry. Co., 79 Tex. 33, 15 S. W. 104; Francis
V. \V. U. Tel. Co. (Minn.) 59 N. W. 1078; 10 days* time reasonable, Case v.
Cleveland, C, C. & St. I^. Ry. Co. (Ind. App.) 39 N. E. 426.
3^ Central Vt. Ry. v. Soper, 8 C. C. A. 341, 59 Fed. 879.
84 Selby V. Wilmington & W. R. Co., 113 N. C. 588, 18 S. E. 88.
»» Galveston, H. & S. A. Ry. Co. v. Silogman (Tex. Civ. App.) 23 S. W. 298;
Harned v. Missouri Pac. R. Co., 51 Mo. App. 482; Galveston, n. & S. A. Ry.
Co. V. Ball, 80 Tex. 6^2, 16 S. W. 441.
'80 Johnson v. Railway Co., (iS) Miss. 191, 11 South. 104. And see Western
306 DL^rHAnCB AND LIUITATION oF LIABIUlY FOR TORTS. [Ch. 4
The law allows in some cases the determination of the physical
extent of a contract or nndertaking.'* Thus, intermediate carriers
mji y limit their liability to injuries occurring to through freijrht to
the time it is on its own line.**
106. Bat a limitation, 'vrhen allo^ired by la^ir to be binding,
must have been assented to by the parties to the
contract. It is strictly construed, and must be
proved by the party claiming advantage under it.
There is, however, an important distinction between a special
contract limiting liability, formally executed or assented to by the
parties, and a mere issuance or publication by one of the parties ^*
of a notice containing such restrictions. To have binding effect
the terms of limitations must be assented to. Neither a public nor
general notice by one of the parties, standing by itself, will vary
the duties or limit the responsibility existing apart from such no-
tice. Thus, a notice by a common carrier that a certain shipment
liy. v. Harwell, Ul Ala. 340, 8 South. G49. The coatract is governed by lex
loci contractus. Falrchild v. Railway Co. (Pa. Sup.) 24 Atl. 79.
s7 A stipulation in a contract of shipmont that the carrier shall not be
liable for loss and Injuries after the property has left its control is binding
on the shipper. Rogers t. Missouri, K. & T. Ky. Co. (Tex. Civ. App.) 2S S.
W. 1024.
8s Coles y. LouisYille, E. & St. L. R. Co., 41 lU. App. 607; Gulf, C. & S. F.
Ry. Co. y. Thompson (Tex. Ciy. App.) 21 S. W. 186; International & G. N.
R. Co. y. Thornton (Tex. Civ. App.) 22 S. W. 67; Gulf, C. & S. P. Ry. Co. v.
Tennant, 3 Tex. Civ. App. li)7, 22 S. W. 761; Dunbar v. Railway Co., 36 S.
C. 110, 15 S. E. 357; McCam y. International & G. N. R. 0>., 84 Tex. 352, 19
S. W. 547, following Texas & P. Ry. Co. v. Adams, 78 Tex. 372, 14 S. W. 666,
and disapproving Gulf, C. & S. F. Ry. Co. v. Vaughn (Tex. App.) 16 S. W. 775.
As to conversion by a connecting road, see McEachei-an v. Michigan Cent
R. Co., 101 Mich. 264, 59 N. W. 612. As to receiving carrier, however, see
Gulf, C. & S. F. Ry. Co. v. Wilbanks (Tex. Civ. App.) 27 S. W. 302; Weh-
mann v. Minneapolis, St. P. & S. S. M. Ry. Co. (Minn.) 59 N. W. 546; South-
ard V. Minneapolis, St. P. & 8. S. M. Ry. Co. (Minn.) 62 N. W. 442. And, gen-
erally, see McCann v. Eddy (Mo. Sup.) 27 S. W. 541; Atchison, T. & S. F. R.
Co. v. Richardson, 53 Kan. 157, 35 Pac. 1114.
>• A condition on the back of a steamship passenger ticket, relie\'ing the
carrier from its common-law liability for perils at sea, referred to merely
by notice on the face of the ticket to "See back," is not binding on the pas-
senger. Potter V. The Majestic, 9 C. C. A. 161, 60 Fed. 624.
Ch. 4] DISCHARGE OR LIMITATION BY VOLUNTARY ACT OF PARTY. 309
will be taken at the owner's risk only will not vary the carrier's
liability.*® If, however, such notice becomes actual notice, the con-
tract, if not forbidden by law, will be enforced. The essential
thing is that the restriction should come to the knowledge of the
person sought to be bound by the restriction.** The limitation
must be expressly and unequivocally set forth. General words are
not sufficient. Therefore, even where a carrier is allowed to con-
tract against negligence, provisions in the contract to the effect
that the carrier will not be responsible for delay in the transit of
the property will not relieve him from the consequence of delay
occasioned by negligence. To constitute such an exception it must
be expressly Ktatod.*^ The burden of proof is on the party claim-
ing the benefit of limitations to show knowledge on the part of
the other party of such limitations, and assent thereto.*'
40 Southern Exp. Co. v. Newby, 33 Ga. 635; HoUister v. Nowlen, 19 Wend.
234; Sager v. Portsmouth, S. & P. & E. U. Co., 31 Me. 228. Merely pinning
stipulations to tole^ruui, without knowledge of addressee or sender of message,
does not make it part of the contract. Anderson v. W. U. Tel. Co., 84 Tex.
17, 19 S. W. 285. And see Capehart v. Seaboard & R. R. Co., 81 N. C. 438.
Mere acceptance of bill of lading is not assent to its conditions. Central Rail-
road & Banking Co. v. Hasselkus, 91 Ga. 382, 17 S. B. 838; Merchants* Dis-
patch Transp. Co. v. Furthmann, 149 lU. 06, 36 N. E. 624. Cf. Zimmer v. New-
York Cent. & H. R. K. Co., 137 N. Y. 460, 33 N. E. 642. (A coUection of au-
thorities on the effect of a receipt or bill of lading limiting the liability of tTi<.>
carrier. Merchants' Dispatch Transp. Co. v. Furthmann, 149 lU. 66, 9 Am.
Ry. & Coi-p. Rep. 25 [111. Sup.] 36 N. E. 624.) But signing a contract is.
Johnstone v. Richmond & D. R. Co., 39 S. C. 55, 17 S. E. 512; Coles v. Louls-
vUle, E. & St. L. R. Co., 41 111. App. 007. As to duress of ftiipper, see Little
Rock & Ft. S. Ry. Co. v. Cravens, 57 Ark. 112, 20 S. W. 803.
*i Verner v. Swoitzer, IVJ. Pa. St 208. Compare with Camden & N. A. R.
Co. V. Baldauf, 1(» Pa. St. 07; Merchants' Dispatch Transp. Co. v. Furtlier-
mann, 149 lU. GO, 30 N. E. 024. So, where the notice was special. McMll-
len V. Michigan S. & N. I. R. Co., 16 Mich. 79.
*2 Magnln v. Dinsmore, 56 N. Y. 168; Mynard v. Syracuse, B. & N. Y. R.
Co., 71 N. Y. 180; Nicholas v. New York Cent. Ry. Co., 89 N. Y. 370. Such
a contract with a railway company does not apply to the negligence of an
express company. Brewer v. New York, L. E. & W. R. Co., 124 N. Y. 59,
26 N. B. 324; .Jennings v. Grand Trunk Ry. Co., 127 N. Y. 438, 28 N. B. 394.
48 Jennings v. Grand Tnnik Ry. Co., 127 N. Y. 438, 28 N. E. 394; Blossom
V. Dodd, 43 N. Y. 2»U; Baltimore & O. Ry. Co. v. Brady, 32 Md. 333; W. U.
Tel. Co. V. Arwine, 3 Tex. Civ. App. 156, 22 S. W. 105; I-awronce v. New York,
310 Dts* UAKHK, ASU LIMiIATl<J.\ OF ! i ABILI FV' FoK r«»Kn». [Ca. 4
106. A cause of action sonTnling in tort may be settled and
diBcharged by agreement of the wrongdoer and the
sniferer. In order that such an agreement may op-
erate as a bar to the suit in tort of the sofferer,
three things are necessary:
(a) It mnst be executed by all necessary parties, and
by the legal representatives of persons incapaci-
tated, or by the legal representatives ^irhenever re-
quired by statute, as in' cases of death by ^wrongftil
act.
(b) It must be founded on a sufBLcient consideration.
(c) It must show a completed intention to discharge the
particular cause of action in issue.
Farm of Agreement.
The agreement diBchar^iu*; a <au8e of a<*tion in tort may tako
one or more of several not esst^ntially diffenMit forms. It may Ix*
a compromise,** or an arrord and natisfartion,*" or a formal release ,
P. & B. R. Co., 36 Conn. 03; Clement ▼. W. I^. Tel. Co.. 137 Mass. 463; Mc-
Millan V. Michigan 8. & N. I. R. ('o.. 16 Mich. 79; Jiidson v. Western Ry. 6
Allen, 4S6. CVmipare Wolf v. W. U. Tel. Co., G2 Pa. St. srj, with Belger v.
Dlnfimoro, 51 N. Y. 166, and PearsaU v. W. U. Tel. Co.. 1:^4 N. Y. 2.j6. 26 N.
K. r»:{4. For proHiimption, Thomas v. Railway Co., 6.3 Fed. 200.
** Shaw V. C'hlftiKO, R. L & P. Ry. Co., 82 Iowa, IIM), 47 N. W. 1004; Dun-
bar ▼. Tirey (Tex. A pp.) 17 S. W. 1116. Compromise of claim to prevent liti-
f^ation is bindiiij^, although Hiu'h claim is not loj^al. Bemr^nt v. May, 135 Ind.
(J04, 34 N. E. 327.
*BTho plea of accord and satisfaction raist^s an issue uix>n the delivery or
acception of something in satisfaction of debt or damages demaiidi'd. Bouv.
Law Diet, tit "Accord and Satisfaction.*' 2 Greenl. Ev. § 28. A master of a
vessel received from the charterer a check, w^hich clmrtercr clniiued was in
full payment of the master's claim for demurrage. The master retained the
check, but notified the charterer that it was not sufficient, and that ho would
sue. Heldt that bis retaining the check was not an accord and satisfaction.
McKeen v. Morse, 1 C. C. A. 2.*i7, 4J> Fed. 253. A recoipt in full is not an ac-
cord and satisfaction merely because it reads, "In full payment." Ahrens v.
Ch. 4] DI8CUAUOE OR LIMITATION BV. VOLUNTARY ACT OF PARTY. oil
with or without seal/* or a covenant not to sue,*^ or a ratified set-
tlement, even if fraudulent** The agreement claimed to (jperair
as a discharge, in whatever form it exists, ia a matter of aflirma-
tive defense, and must be specially pleaded.**
Parttea.
The agreement releasing a cause of action based on tort must
be executed by all the necessary, and by only the competent, par-
ties. A lunatic, injured in a wreck, cannot execute a release for
damages suffered/^ Even drunkenness, taking away knowledge
of what the drunkard is cloinfir, or that he was signing a release*.
United Growers Co. (City Ct N. Y.) M S. Y. Supp. 91)7. Ball v. McOc^ooh,
81 Wis. IGO. 51 N. W. 443.
*« Phillips V. Claffett, 11 Mees. & W. 84. A collection of authorities as to
the effect of a release from liability for personal injuries. Richmond & D. R.
Co. V. Butler, (tO Am. & Enp. R. Cas. 2G5 (Ga.) 10 S. E. 222.
*7 Pord V. Beech, 11 Q. B. 840 (871). And see post, p. 341, "Release of Joint
Tort Feasor." But agreement not to prosecute for 8ediK*tion is Illegal. Baird y.
Boehner, 77 Iowa, 622, 42 N. W- 454. Cf. Rlngle v. Pennsylvania R. R, 164
Pa. St. 529, 30 Atl. 492; Foakes v. Beer, L. B. 9 App. Cas. 605. This rule in
some places has been changed by statute.
4 8 Where plaintiff agreed to a settlement of a claim for injuries while in a
condition of physical pain which rendered the agreement voidable, and there
was no evidence that the agreement was procmred by fraud, an acceptance
of the amount of such settlement by her attorney, with her consent, at a
time when she fully understood what she was doing, is a rati flea tlon of the
settlement. Drohan v. Lake Shore & M. 6. Ry. Co., 162 Mass. 435, 38 N. E.
1116. Plaintiff, through the defendant railroad company's fraud, roloaHCd his
claim of damages for Injmies. and did not learn of it until two weeks after-
wards. He took steps, two weeks after that, to employ counsel, and in about
throe weeks thought counsel had been engaged. He was confined to his bod
(luring all said time, and spent all the money paid him for executing the re-
lease. Held, that the question whether he ratified such release was for the
Jury. Jones v. Alabama & V. Ry. Co. (Miss.) 16 South. 379.
*» Grunwald v. Frwse (Cal.) 34 Pac. 73; Niggli v. Foi?hry (Sup.) 31 N. Y.
Supp. 931; Jacobs v. Day (Com. PI.) 25 N. Y. Supp. 763; Heath v. Doyle (K.
I.) 27 Atl. 333. And see Maness v. Henry, J)6 Ala. 4."H, n South. 410; Forbes
V. Petty, 37 Neb. 800, 56 >f. W. 730. As to burden of proof, Podersou v.
Seattle Consol. St. Ry. Co., 6 Wash. 202, 33 Pac. 351, and 34 Pac. 005.
60 Missouri Pac. Ry. Co. v. Brazzil, 72 Tex. 233, 10 S. W. 403; Texas & P.
Ry. Co. V. Crow, 3 Tex. Civ. App. 266, 22 S. W. 928; Johnson v.*Merry Mount
Granite Co., 53 Fed. 569. Cf. Louisville, N. A. & G. R. Co. v. Herr, 135 Ind.
591, 35 N. B. 556, foUowing Ashmead v. Reynolds, 127 Ind. 441, 26 N. E. 80.
I
312 DISCUARQK AND LIMITATION OF LIABILITY FOK TORTS. [Ch. 4
may vitiate it."' Capacity to execute a release is ordinarily a
question of fact for the jury."* A wife may not release a claim for
personal injuries caused by alleged negligence, when not allowed
to make such contract by the laws of the place of injury, however
it may be in the state where she resides."* But her release of
a cause of action peculiarly her own, arising out of injuries to her
person, does not discharge liability to her husband for the same
wrong."* Ordinarily, an infant may avoid any release he may
execute, as he may any other contract Release by a parent of
personal injury to a minor can operate only as a release of damage
suffered by the parent, not by the minor."" To fully satisfy all causes
of action, a release should be obtained, not only from the parents.
as to their separate causes of action, but also from the legally ap-
pointed guardian of the infant. On the same principle, where,
upon death by tort, a right of action accrues to the next of kin, or
other statutory beneficiaries, only legally constituted authorities
can execute a release. A brother-in-law cannot; "' nor the
widow."* The person authorized by statute to sue for the injuries
complained of (as the special administrator for widow and next
of kin of a man killed by wrongful act, or a guardian ad litem of an
infant or insane person), and the attorney of record in the suit
81 Houston & T. C. Ry. Co. v. Tienioy, 72 Tex. 312, 12 S. W. 596. One
under the influence of opiates at time of executing a release for torts may
avoid it Chicago, R. I. & P. R. Co. v. Lewis, 109 111. 120.
s2 In an action for personal injuries, where a release of plaintiff's claims is
pleaded in defense, plaintiff's capacity to execute such release is a question
for the jury. Gibson v. Western New York & P. R. Co., 104 Pa. St 142. 30
Ati. 308.
58 Snashall v. Met. U. Co., 19 D. C. 309.
5* Schouler, Dom. Rel. § 77. The husband may release the damages for his
wife's injuries, and then recover for the loss arising to himself alone.
OB International & G. N. Ry. Co. v. Hinzie, 82 Tex. 623, 18 S. W. 681; Hor-
gan V. Pacific trills, 158 Mass. 402, 33 N. E. 581.
07 Stuber v. McEntee, 142 N. Y. 200, 36 N. B. 878, OTemiling (Super. N.
Y.) 19 N. Y. Supp. 900.
5 8 KnoxTille, C. G. & L. R. Co. v. Acuff, 92 Teuu. 26, 20 S. W. 348; Yelton
7. Railroad Co., 134 Ind. 414, 33 N. E. 629.
Oh. 4] DISCHAUUE OB LIMITATION BY VOLUNTARY ACT OF PAKTY. 313
brought, may undoubtedly execute a proper release, or satisfy a
jiidfrment entered after trial or on stipulation, or may execute a re-
lease, especially when directed so to do by the court appointing
such person executor or guardian.'^ Acceptance by a widow of
benefits from a railroad relief association does not bar action b}'
her, as administratrix, on behalf of her children.**
Cdnriderativn^
There must be a consideration. A mere gratuity is not suffi-
cient.** Thus, the voluntai*y payment of wages, merely as wages,
by a master to an employ^ injured by the master's alleged negli
gence, does not constitute a satisfaction of the cause of action.*'*
But a receipt of a stated sum of money, even in the absence of an
express agreement that it shall be in satisfaction of such a cause of
action, will be presumed to be a full recompense for the injury.*"
A promise to re-employ or to keep in employment is a sufficient con-
sideration.** Where the injured person becomes a member of
a relief association, and as a condition of membership, and in con
Btt 2 Chit. PI. (16th Am. Kd.) 455; Maness ▼. Henry, DC Ala. 454, 11 South.
410.
•0 Chicago, B. & Q. H. Co. ▼. Wymore, 40 Neb. 645, 58 N. W. 1120. And
see State y. Baltimore & O. R. Co., 36 Fed. 655. In FuHer v. Baltimore & O.
E. R. Ass'n, 67 Md. 433, 10 Ati. 237» it was held that if the wife and child
recover damages, the mother cannot recover benefits. This, however, is ranlv
injustice. The two claims rest on different footings. 34 Am'. Law Reg. 234.
ei Sieber v. Amunson, 78 Wis. 679, 47 N. W. 1120. Post. p. 314, note 65.
«2 Sobieski v. St. Paul & D. R. Co., 41 Minn. 160, 42 N. W. 863. Further, as
to what is not sufficient, Richmond & D. R. Co. v. Wallcer, 02 Ga. 4Sr>, 17 S. E.
<K)4; Landon v. Huttou, 50 N. .1. Kq. 500, 25 Atl. 953; Davidson v. Biirlce, 143
lU. 130, 32 N. E. 514.
6 5 Hlnlcle V. Minneapolis & St. L. Ry. Co., 31 Minn. 434, 18 N. W. 275.
«4 Hobbs V. Electric Light Co., 75 Mich. 650, 42 N. W. 965; Pennsylvania Co.
V. Dolan, 6 Ind. App. 10$^ 32 N. E 802; Conner v. Dundee Chemical Works
(N. J. Ch.) 17 Atl. 975; White v. Richmond & D. R. Co., 110 N. C. 456, 15 S. E.
197. But not where the retention in employment is for such time as may suit
the employer. Gulf, C. &. S. F. Ry. Co. v. Winton (Tex. Civ. App.) 26 S. W.
770. A parol promise to re-oniploy him is a sufficient consideration for a re-
lease, executed by an employ^, of a claim for peraonal injuries. In an action
on a promise to give plaintiff employment, which, with the payment of $100,
formed the consideration of plaintiff's release of a claim for personal injuries,
the fact that the written release executed by him recites only the money con-
314 DISCUAKGE AMD LIMITATION OF LIABILITY FOB TOBT8. [Gh. 4
Hideration of the contributions of a railroad company to aaid aaao-
cdation, and of its guaranty of the payment of benefits, signs a con-
tract releasing the company from liability by reason of any acts
that may happen to him in course of employment, an action will
not lie against the company where, both before and after begin-
ning the action, he received money from the association on account
of the injury.**^ This would seem to be true even where the em-
f)loy6 was a minor at the time of executing the contract.** To con-
stitute accord and satisfaction, there must be both accord and sat
isfaction. Mere accord is not sufficient.*^ A binding contract
may, however, be taken in satisfaction.** Where a sum certain is
Hideration does not prevent recovery on the parol contract for employment.
Pennsylvania Co. v. Dolan (Ind. App.) 32 N. B. 802. And see Smith v. St Paul
& D. Ky. Co. (Minn.) 02 N. W. :W2. Cf. Myron v. Union K. Co. (R. I.) 32 Atl.
1(55.
«6 State V. Baltimore & O. U. Co.. 36 Fed. 655; Chicago, B. & Q. R. Co. v. BeU
(Neb.) 62 N. W. 314; Johnson v. Philadelphia & R, R. Co.. 163 Pa. St. 127. 29
Atl. 854; Spltze v. Railroad Co., 75 Md. 162, 23 Atl. 307; Lease v. Pennsylvania
(^.o., 10 Ind. App. 47, 37 N. E. 423. Cf. Chicago, B. & Q. R. Co. v. Wymore, 40
Neb. 645, 58 N. W. 1120 (under statute); but see Clements v. London & N. W.
Ry. (1804) 70 Law T. (N. S.) 531; MiUer v. Chicago, B. & Q. Ry. Co.. 65 Fed. 305.
And, generally, see Martin v. Baltimore & O. R. Co.. 41 Fed. 125; Graft v. Balti-
more & O. R. Co. (Pa. Sup.) 8 Atl. 206. And see ante. 60. An agreement by an
employ^ of a railway company, on joining a "reUef department," that, in con-
sideration of certain contingent payments by the company to the funds of such
department, which payments are of trivial amount, his acceptance of benefits
from such department shall operate as a release of the company from claims
for damages, does not bar his action against the company for Injuries caused
by its negllKonce. Miller v. Chicago, B. & Q. Ry. Co. (C. C.) 65 Fed. 305; anCe,
note 60, p. 313.
«• Martin v. Baltimore & O. R. Co.. 41 Fed. 125-127, and cases cited; I>ease
V. Pemisylvania Co.. 10 Ind. App. 47, 37 N. E. 423. Cf . Johnson v. Railroad Co..
163 Pa. St. 127, 20 Atl. 854; Graft v. Railroad Co. (Pa. Sup.) 8 Atl. 206; Donald
V. Chicago, B. & Q. R. Co. (Iowa) 61 N. W. 971; Griffiths v. Earl of Dudley.
0 Q. B. Dlv. 357.
87 Braunn v. Keally, 146 Pa. St 519. 23 Atl. 389; Glboney v. German Ins.
Ck)., 48 Mo. App. 185; Rogers v. City of Spokane. 9 Wash, 168, 37 Pac. 300;
Yazoo & M. V. R. Co. v. Fulton. 71 Miss. 285, 14 South. 271; Lynn v. Bruce, 2
H. Bl. 317; Wray v. Milestone, 5 Mees. & W. 21; Gabriel v. Dresser, 15 C. B.
622; Hardman v. Bellhouse, 9 Mees. &. W. 596.
«« Floekton v. Hall, 14 Q. B. 386. And see I^aver>- v. Turley, 6 Hurl. & N.
239. An accord and satisfaction may be self executing. Jones v. Sawkins, 5
C. B. 142; Crowther v. Farrer, 15 Q. B. 077. Cf. James v. David, 5 Term R.
Ch. 4] DISCHARGE OR LIMITATION BY VOLUNTARY ACT OF PARTY. 315
to be paid, a lesser sum cannot be paid by the debtor '* in satisfac-
tion of a greater; ^^ but where the claim is for unliquidated dam-
ages, or is uuceilain, a less sum may ho paid and accepted in sat-
isfaction.''* But, even with respect to unliquidated damages, the*
amount of the consideration, under special circumstances, may be-
come material.^- A seal sufficiently imports a consideration,^*
but may be inquired into uj)on an allegation of fraud.'*
Intent to Disclmrye Wrong in Issue*
An agreement as to satisfaction of a claim based on a tort is gov-
erned by ordinary princijiles of contract. Words employed in a
release will receive a fair construction, but will not be extended
beyond the consideration. Otherwise, a release would be made
for the parties where they never intended or contemplated one.^^
141. Arbitration and award may operate as an accord and satisfaction. Allen
V. Milner, 2 Cromp. & J. 47; Harris v. Reynolds, 7 Q. B. 71.
«<> As to obligation of and accord by a third person, see Bidder y. Bridges
(1887) 37 Cli. Div. 40G; Clark v. Abbott. 53 Minn. 88, 55 N. W. 542; Fowler v.
Smith, 153 Pa. St. 639, 25 Atl. 744. Of. Marston v. Bigelow, 150 Mass. 45, 22
N. E. 71.
7 0 Pinners Case, 3 Coke, 117a, 238; Foakes v. Beer, 9 App. Cas. 605; Jaffray
V. Davis, 124 N. Y. 164, 26 N. E. 351. Cf. Perkins v. Lockwood, 100 Mass.
249, with Weber y. Couch, 134 Mass. 2G; Bird y. Smith, 34 Me. 63. But see
Schweider y. Lang, 29 Minn. 254, 13 N. W. 33; Thurber y. Sprague, 17 R. I.
634, 24 Atl. 48. Cf. Savage y. Everman, 70 Pa. St. 315.
71 Adams v. Tapling, 4 Mod. 88; Hinkle v. Railway Co., 81 Minn. 431, 18 N.
W. 275; Prestonv. Grant, 34 V t. 201; Stockton v. Frey, 4 GiU (Md.) 406; Dono-
hue v. Woodbury, 6 Cush. 148; Renihan v. Wright, 125 Ind. 536, 25 N. E. 822;
Fuller V. Kemp, 138 N. Y. 231, 33 N. E. 1034.
72 Thus, where a woman's husband and her only son were killed in the same
accident, and she was in such poverty that she had to give away her remain-
ing child, a release of damages, made by her in ignorance of her rights, in
consideration of $70 and a ticket worth $3.25, is of no effect Byers v. Nash-
ville. C. & St L. Ry. Co., 94 Tenn. 345, 29 S. W. 128; Aliston v. Nashville, C.
& St. L. R. Co., Id.
7 3 Spitze v. Baltimore & O. R, Co. 75 Md. 162, 2;i Atl. :^07.
7 4 Wain v. Wain. 53 N. J. Law, 429, 22 Atl. 233.
7 5 Codding v. Wood, 112 Pa. St 371, 3 Atl. 455. Damages from Are. Fi-
delity Title & Trust Co. v. People's Natural Gas Co., 150 Pa. St. 8, 24 Atl. 339.
Malproeecution. Kirchner v. New Home Sewing Mach. Co., 62 Hun, 620, 16
\. Y. Supp. 761; Id., 59 Hun, 186, 13 N. Y. Supp. 473; Id., 135 N. Y. 182, 31 N.
B. 1104; DufC v. Hutchinson. 57 Hun, 152, 10 N. Y. Supp. 857. And see Up-
816 ]>ISCUAKa£ AND LIMITATION OF LIABILITY FOR TORTS. [Oil. 4
The agreement may be conditionaL If a receipt is given for an
amount received in discharge of damage, with the understanding,
although not expressed in the document, that the person injured
should not thereby exclude himself from further compensation if
his injury turned out more serious than was supposed at the timr,
he will not be debarred from suing for damages in respL»ct to in-
juries which have subsequently developed.^* It may fail to cover
cause of action in issue.''^ A release of all claims and demands,
"from the beginning of the world to this day," does not cover in-
juries not therein mentioned, and not known to exist at the time
the release was executed.^* But a siiu])le receipt in full — ^for ex-
ample, "$15 in full for damages sustained by a bull hooking a
horse" — is a sufficient discharge."^'
107. The person executing the agreement claimed as a re*
lease of a cause of action sounding in tort may,
notwithstanding it, maintain his action if he can show
that the release had been obtained by such fraud
of the defendant as will entitle him to have it set
aside (in many jurisdictions, without return of what
degrrove v. Pennsylvania S. V. R. Co., 132 Pa. St 540, 19 Ati. 283; Cory v.
Chicago, B. & K. 0. R. Co., 100 Mo. 282, 13 S. W. 346. And see Robertson v.
Hunter, 29 S. C. 9, 6 S. E. 8oO; HeUer v. Charleston Phosphate Co., 28 a C.
224, 5 S. E. 611. An agreement to compromise a pending suit will not be en-
forced where the writing makeg no mention of the suit, but simply releasee
aU claims against defendant. I^mpklns y. Vicksburg, S. & P. R. Co., 42 La.
Ann. 997, 8 South. 530.
7« Lee V. Lancashlra & T. R. Co., 6 Ch. App. 527.
7T Where a blast by defendant Injures plaintiff's building, and the damage
done by such trespass quare clausum fregit haa been settled, the defendant
may still recover for the interruption of his business and the loss ol time of
his workmen. Hunter v. Farren, 127 Mass. 481.
7 8 Union Pac. R. Co. v. Artist, 9 C. C. A. 14, 60 Fed. 305. A short note, with
numerous authorises, ou the effect of a release execute.! by the person injured,
of all claims for damages, will be found in 40 Cent. I^w J. 23G.
7» Cunier v. Bllger, 149 Pa. St. 109, 24 Atl. 168; Battle v. McArthur, 49 Fed.
715; Guldager v. Rockwell, 14 Colo. 459, 24 Pac. 556. A collection of authori-
ties on the validity of releases to railroads for damages through personal In-
juries. Bliss V. New York Cent. & H. R. R. Co., 9 Am. R. & Corp. R, Am
(Mass.) 36 N. E. 65.
Ch: 4] DISCHARGE OR LIMITATION BY VOLUNTARY ACTT OF PARTY. 317
'WBB paid under it by the tort feasor), if he act
without laches in asking for a rescission. Such an
agreement may be rescinded in the same action
which awards damages for the wrong done.
"Fraud vitiates all it touches." While a release of a cause of
action sounding in tort, containing proper words of release, or for a
sufficient consideration, executed by proper parties, is a bar to an
action,'® such release may be set aside for fraud, like a receipt,**
in the same suit in which claim for damages is made.'^ A fraud,
to vitiate a release, must have been perpetrated by the defendant,
or some one representing him. If, for example, the signature to a
release of a claim for seduction was obtained by some third per-
son, not connected by evidence with the defendant, the fraud does
not vitiate; *' but the defendant's attorney is his agent in the
sense that the attorney's fraud in procuring a release in such a case
is the defendant's fraud.** The release, if void for one purpose,
is void for all. Therefore, if a release is void as to inspectors' fees,
it is void as to damage occasioned by j)laintiff's work, for which
work those fees were charged, being delayed by the municipality.^*
A release is not impeached merely because the releaser could not
read or understand its contents, since his signing in such a cas(,'
80 Chicago, W. & V. Coal Co. v. Peterson, 39 111. App. 114; Stone v. WelUer,
128 N. Y. 655, 28 N. B. 663; Vlrdin v. Stockbridge, 74 Md. 481, 22 Ati. 70.
81 Hartshorn v. Day, 19 How. (U. S.) 211; George v. Tait, 102 U. S. 564-570.
As to fraudulent representations and practice In avoidance of contract, see
Bell V. Byerson, 11 Iowa, 233; Freedley v. French. 154 Mass. 339, 28 N. B. 272;
Illinois Cent. R. Co. v. Welch. 52 lU. 183; Schultz v. Chicago & N. W. R. Co..
44 Wis. 638; Chicago, R. I. & P. R. Co. v. Doyle, 18 Kan. 58; Michigan Cent.
R. Co. V. Dunham, 30 Mich. 128; Davis v. Wood, 56 Hun, 648, 10 N. Y. Supp.
400.
82 Glrard v. St. Louis Car-Wheel Co., 46 Mo. App. 79; Id., 123 Mo. 358, 27
S. W. ('48 (resort to equity unnecessary); Busslan v. Milwaukee, L. S. & W.
Ry. Co., 56 Wis. 325. Accord procured by fraud. Ball v. McGeoch, 81 Wia.
160, 51 N. W. 443; Hayes v. East Tennessee, V. & G. R. Co., 89 Ga. 264, 15 S.
E. 361.
•8 Meka V. Brown, 84 Iowa, 711, 45 N. W. 1041, and 50 N. W. 46; Vander-
velden v. Chicago & N. W. R. Co., 61 Fed. 54.
j^* Gurley v. People, 31 111. App. 465.
8 6 Newen V. City of New York, 61 Hun, 356, 16 N. Y. Supp. 911.
318 DiscUAuas and limitation ok liability fok tokts. [Ch. 4
raises the presumption of gross negligence, which he has the bur-
den to disprove.®* But there are many circumstances under which
misrepresentation as to the contents of a release may entitle the
sufferer in tort to have it set aside. Thus, where the contents
of a paper which the injured person was unable to read, becaust*
of dizziness, caused by injury to his face and head, were misrepre-
sented to him, such a reh?as(» does not prevent his i-ecovery for per
s(mal injury suffered/" So, wln^re a reloasp is misrepresented to
be a receipt *• for wages,'* or a hospital regulation,** pay roll,** or
voucher for expenditures.*- Inde^Kl, the courts have gone so far
as to say that "where false and fraudulent representations are
made to a person, in order to induce him to sign an instrument
other than the one he supix^sed he was signing, and such fraudu-
lent party afterwards claims benefit of the fraud, it does not lU"
in his mouth to claim that the party defrauded might have pro-
tected himself from such imi>osition by greater precaution. Such
a rule shocks the moral s(»nse, and we do not think any considera
lion of public policy requires it to be <*sfablished here.***' Mere
mistake as to the extent of an injury, when* no misrepresentation
»*« Albrecht v. Milwaukee & S. R. Co., 87 Wis. 105, 58 N. W. 72; Mateer t.
Missouri rac. Uy. Co., 105 Mo. 320, 16 S. W. 839; Jenkins v. Clyde Coal Co..
82 Iowa, 618, 48 N. W. 970. And see Fuller v. Madison Mut. Ins. Co., 3«>
Wis. 599; Sanger v. Duu, 47 Wis. 615, 3 N. W. 388. As to consequences of
failing) to read over to an illiterate peraon writing executed by them. 8e<«
Suffern v. Butler, 18 N. J. E(i. 220; Selden v. Myers, 20 How. 506; Trambly
V. Ricard, 130 Mass. 250; O'Neil v. I^ko Superior Iron Co., 63 Mich. 690.
30 N. W. (i88.
RT Lusted v. Chicago & N. W. Ry. Co., 71 Wis. 391, 36 N. AV. 857. Aud Heo
National Syrui) Co. v. Carlson, 47 111. App. 178; (lirard v. St. Louis Car-
Wheel Co., 123 Mo. 358, 27 S. W. 648; .Tones v. Alabama & V. Ry. Co. (Miss.)
16 South. 379.
88 Bliss V. New York Cent. & 11. U. R. Co., 160 Mass. 447, 36 N. B. 65.
For damages to clothes, sei^ Smith v. Steamship Co., 99 Cal. 462, 34 Pac. 84.
8» Cleary v. Municipal Electric Light Co. (Sui).) 19 N. Y. Supp. 951; Bean
.V. Western N. C. R. Co, 107 N, C. 171, 12 S. B. 600.
»o Pederson v. Seattle Consolidated St. Ry. Co.. 6 Wash. 202, 33 Pac. 351.
01 Butler v. Richmond & D. R. Co., 88 Ga. 594. 15 S. E. 668.
02 Eagle Packet Co. v. De Fries, 94 111. 598-602.
03 Chicago, R. I. & P. Ry. Co. v. Lewis, 13 111. App. 1(56-170, citing Anderson
V. Field, 6 Bradf. 307-312; Butler v. Regents, 32 Wis. 122; Schultz v. Chicago
& N. W. Ry. Co., 44 Wis. 645; Eagle Packet Co. v. De Fries, 91 111. .'598: Illi-
<Jh. 4] OISCHAKGK OK LIMITATION BY VOLUNTARY ACT OF PARTY. 319
can be charged to the defendant, or to his physician, and no arti-
fice is used on the part of the tort f(*a8or to prevent tlu* injured
person from ascertaining the true nature of the injury, will not
^ivoid an accord and satisfaction.^* A mistaken opinion as to th<'
cure of the injury, expressed in good faith' by the physician of thf»
wrongdoer, is not a fraud which will avoid the release.** But
where false representations are made to a person sutfering from an
accident, as to the medical opinion given as to his state, inducing
him to accept an almost nominal sum for satisfaction, he can re-
cover, notwithstanding.*' A case of personal injuiy already begun
may be settled by the injurt»d person, without the consent of th<»
attorney of record ; •^ but such settlements are scrutinized severely,
and will be set aside where there is any appearance of fraud or
undue influence.*' Undue influence may vitiate a n^lease for torts
4m much the same principle as it would a will. Thus, upon the
commencement of a suit by a married woman against a railroad
company for injuries sustained by her through its negligence, th(»
company's station agent, assisted by a physician, who was also
a lawyer, induced her uncle to interview her regarding a settle-
ment. He told her it would b<* a great disgrace to be brought into
court, that the suit would be repeatedly put off, and that she would
get nothing in the end. Iler husband was absent, her children
were sick, and she was very [mor. The court set aside tlie n»loase
on the ground of undue influence.**
nois Cent. R. Co. v. Welch, .52 111. 187; Mulbor v. Old Colony Uy.. 127 Mass.
86; Llnington v. Strong, Chi. I^eg. News (April 7, 1SS3) 243; Shoanon v. Pn-
viflc Mut Life Ins. Co.. 83 Wis. .^07-527. r:j N. W. 878.
»4 Hayes t. East Tennessee. V. & G. Ry. Co., 89 Oa. 264, 10 S. K. 361; Ec-
cles V. Union Pac. Ry. Co., 7 Utah. 33.5, 26 Pac. 924.
»» Doty V. Chicago. St. P. & K. C. Ry. Co.. 49 Minn. 499, 52 N. W. 135;
Vandervelden v. Chicago & N. W. R. Co., 61 Fed. 54-56.
•« Stewart v. GrtHit Western Ry. Co., 2 De Gex it S. 319.
•7 DoUoff V. Curran, 59 Wis. 332. 18 N. W. 2m.
»» VoeU V. Kelly, 64 Wis. 504. 25 N. W. 536; Russian v. Milwaukee. L. S.
AW. Ry. Co., 56 Wis. 325, 14 \. W. 452.
»» Stone V. Chicago & W. M. Ry. Co., 06 Mich. 76, 33 N. W. 24. And set*
Flummerfelt v. Flummerfelt. 51 N. .1. Eq. 432, 26 Atl. 857. As to what Is
not sufficient, see Alabama & V. Ry. <^'0. v. Turnbull, 71 Miss. 1020. 16 Soutb.
:^46; lo re Rockey*s Estate, 155 Pa. St. 453, 26 Atl. &56.
320 DISCilAUGE AND LIMITATION OF IJABILITY FOR TOKTS. [Ch. 4
Where the settlement of the wrong done was induced by fraud,
it is not necessary for the plaintiff to return to the defendant what
he has n»eovered under the terms of the settlement before he is en-
titled to pursue his action. Thus, if the defendant obtains a sig-
nature of the plaintiff to a paper, purporting to be a settlement
and discharge of the cause of action, by fraudulent representations
that it is merely a receipt for a gratuity, the plaintiff may maintain
his a(*tion without returning the money paid him, and the jury will
deduct from its award the amount already received.^®* But on
this x)oint the authorities are not agreed.*** This principle ap-
plies, a fortiori, where the cause of action sued on was not included
in the release.***
A court will not readily sot aside a formal settlement of a matter
in dispute. The burden to avoid a satisfaction or discharge of a
tort rests on the party attacking it*^^ A party defrauded is
bound to use active dilig<»nc(» to allow no avoidable delay in com-
plaining of the wrong done him in fraudulently procuring a settle-
ment. Any delay which is not reasonably necessary under the
circumstjinces is fatal.****
100 Mullen v. Old Colony Ry., 127 M&m, 86. Cf. Bliss T. New York Cent.
& H. R. R. Co., 160 Mass. 447, 36 N. E. 65; Cleary v. Municipal Electric Llgbt
Co., 65 Hud, 621, 19 N. Y. Supp. 051 (distingulshingi McGlynn v. Railway Co..
03 N. Y. 655; Dixon v. Railway Co.. 100 N. Y. 170, 3 N. E. 65); Shaw ▼.
Webber, 70 Hun. 307. 20 N. Y. Supp. 437; Glrard v. St Louis Car-Wheel Co..
40 Mo. App. 70; Id., 123 Mo. 358. 27 S. W. 648; O'Brien v. RaUway Co. (Iowa)
57 N. W. 425; Butler v. Richmond & D. R. Co., 88 Ga. 504, 15 S. E. 668. And
see KnoxvUle. C. G. & L. R. Co. v. Acuff, 02 TeiiU. 26, 20 S. W. 348. See Duff
V. Hutchinson, 57 Hun, 52. 10 N. Y. Supp. 857.
101 However, where an accord and satisfaction Is fully executed, the party
receiving money from the other cannot rescind on the ground of fraud, or of
his own mental incompetency to make a contract, without refunding, or offer-
ing to refund, the money received. Strodder v. Stone Mountain Granite Co..
(Ga.) 10 S. E. 1022. But see A'andervelden v. Chicago & N. W. R. Co., 61 Fed.
54-56, citing Thackiah v. Haas, 110 U. S. 400, 7 Sup. Ct 311; BlUings v.
Smelting Co., 3 C. C. A. GO, 52 Fed. 'StiX
108 Klrchner v. New Home Sewing Mach. Co., 135 N. Y. 182, 31 N. E. 1104.
to8 Addyston Pipe & Steel Co. v. Copple. 04 Ky. 202, 22 S. W. 323; Peder-
Bon V. Railway Co., 6 Wash. 202. 33 Pac. 351; Helling v. United Order of
Honor, 20 Mo. App. 300.
104 Lewless v. Detroit, G. H. &. M. Uy. (.^o.. (Vi Mich. 202-302, 32 N. W. 7t>0.
clUng oases. International & G. N. Ry. Co v. BrazzU, 78 Tex. 311, 14 S. W.
Ch. 4] DISCHARGE OR LIMITATION BY OPERATION OF LAW. 321
DISCHAJtaS OB LIMITATION BY OFEBATION OF I^W.
108. liiability for torts may be discharged by operation of
law by —
(a) Judgment;
(b) Death of either party;
(c) Statutes of limitation;
(d) Compliance with statutory provisions.
SAME— DISCHABQE BY JUBOMEKT.
109. A tort is discharged by a Judgment rendered in a
former action, although the form of action may
have been different, provided —
(a) The court had jurisdiction;
(b) The action was between the same parties, and on the
same cause of action; and
(c) The judgment was on the merits, and final.
Reason.
When an action is brought, and the plaintiff recovers judgment,
the original right in respect to which he sues is merged in the higher
and better right which he attains by his judgment. It being gone,
the party may proceed to obtain its fruits by execution, or to revive
it by a fresh action on his judgment. 'Tor you shall not bring the
same cause of action twice to a final determination; 'Nemo debet
bis vexari pro eadem causa;' and what is the same cause of action
is where the same evidence will support both actions." *®' 'Interest
reipublicae ut sit finis litium." *®*
The judgment of a foreign court is not in force, in the sense that
it destroys the cause of action, although it may estop the party from
disputing the matter of facts it has decided.^®"' If tho judgment be
600; Chicago, St P. & K. C. Ry. Co. v. Pierce, 12 C. C. A. 110, 64 Fed. 203;
mat V. Fist, 3 Colo. App. 273, 32 Pac. 710.
10 5 Kitchen v. Campbell, 3 Wlls. 304. The principle does not apply to eject-
ment Elchert v. Schaffer, 161 Pa. St 519, 20 Ati. 303.
io« Broom, Leg. Max. 331, 343: 2 Co. Litt 303.
107 Higgen's Case, 3 Coke, 344; Smith v. NicoUs, 5 Blngk N. C. 208; Aus-
LAW OF TORTS— 21
322 DISCHARGE AND LIMITATION OF IJABILITY FOB TOKT8. [Ch. 4
satisfied, however, this is otherwise.^** In America a domestic
judgment on the merits is conclasiye between the same parties on
all issues actually tried and passed otl^^*
But a judgment rendered without jurisdiction does not establish
the plea res judieata.^^* A judgment in another suit must be plead-
ed specially."*
tralasia Bank t. Harding, 9 G. B. 661. Bat see Donstan y. Higgins, 63 Hun,
631, 17 N. Y. Supp. 887. As to effect of foreign judgment in rem, see Cas-
trique V. Imrie. L. R. 4 H. L. 414; Wright v. Omnibus Ck>., 2 Q. B. Dlv. 27L
In England a judgment In a county court is a bar to an action for the same
cause of action in any other court Austin y. Hills, 9 Exch. 288. Compare
Brunsden v. Humphrey, 14 Q. B. Div. 141.
i«» Barber v. Lamb, 8 C. B. (N. S,) 95. The judgment of a state supreme
court reversing a judgment in fayor of a railway employ 6 for personal in-
jury, and granting a new trial, does not preclude such «nploy6, on subse-
quently taking a nonsuit, from maintainins a like suit in a federal court, or
from offering therein evidence tending to show a like state of facts to that
which was shown by the evidence before the state supreme court Gardner
V. Michigan Cent R. Co., 150 U. S. 349, 14 Sup. Ct 140. The finding and
judgment made by the church in the trial of the clergyman on the charges is
not competent evidence for either party, in a suit for damages for the libel,
and is properly stricken out of the answer of the deacons. Piper y. Woolman,
43 Neb. 280, 61 N. W. 58a
100 Lord v. Thomas (Cal.) 36 Pac. 372; Johnson y. Johnson (Minn.) 68 N.
W. 8*J4. The constitution of the United States ordains that full faith and
credit shall be given In each state to the Judicial proceedings of every other
state, and also that congress may prescribe the effect which Judicial proceed-
ings had in one state shall be given in each of the others. Congress, In the
exercise of this power, after prescribing how such proceedings shall be au-
thenticated to render them admissible in evidence, has declared that when
so authenticated, they "shall have such faith and credit given to them in
every court within the United States as they have by law or usage in the
courts of the state from which they are .taken." Rev. St U. S. p. 170, §
905. As to Judgment In state court which has been transferred to United
States circuit court, see Roberts v. Railway Co., 48 Minn. 521, 51 N. W. 478.
As to Judgment of courts of same state, see Johnson v. Johnson (Minn.) 58
N. W. 824.
110 Attorney General for Trinidad & Tobago v. Erichfi [1893] App. Cas.
518; Reed v. Chllson, 142 N. Y. 152, 36 N. E. 884; Wright v. Wright, 99 Mich.
170, 58 N. W. 54; Winchester y. Oiunty Com'rs. 78 Md. 266, 27 Atl. 1075. Cf.
In re ElUs* Estate, 55 Minn. 401, 56 N. W. 1056.
111 Norton v. Norton (Ky.) 25 S. W. 750; Spargur y. Romlne, 38 Neb. 736,
57 N. W. 523; Field y. Sims, 96 Ala. 540, 11 South. 763; McCreary v. Jonea
Ch. 4] DISCHARGE OR LIMITATION BY OPERATION OF LAW. 'd2'6
Identity ofPartieg and Cauae ofActvm,
It is onlj when the causes of action in two suits are identical that
the recovery of judgment in one can }ye a bar to the other."*
A judgment in an action against the lessee for a breach of the
covenant to pay rent is not a bar to an action for damages for neg-
ligence in the care of the premises.***
It is generally true that where a party, claiming to have been in-
jured, has an option of using one of several modes of legal redress,
elects to take one, which is adequate, and prosecutes the same to a
final judgment, he cannot subsequently resort to another legal pro-
ceeding for the same wrong."* But if he seek in vain to rescind
a contract, for fraud, he may subsequently sue for damages.***
However, the subject-matter may be the same, but the causes of
action (and not merely the forms of procedure) may be different.***
96 Ala. 592, 11 South. 600; Dunklee v. Goodenough. 65 Vt. 257, 26 Atl. 988;
Lynde v. Columbus. C. & I. C. Ry. Co., 57 Fed. 993; Bryson v. St. Helen.
79 Hun. 167, 29 N. Y. Supp. 524; Kilpatrick v. Railroad Co., 38 Neb. 620, 57
N. W. 664; David Bradley Manuf'g Co. v. Eagle Manuf'g Co., 7 C. C. A. 442,
58 Fed. 721.
112 v^^bere a physician sues for services and defendant confesses Judgment,
the latter cannot subsequently sue the former for malpractice. Bellinger v.
Cralgue, 31 Barb. 534; Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, 75
N. Y. 150. And, generally, see Cromwell v. County of Sac, 94 U. S. 351;
Featherston v. President, etc, of Newburgh & C. Turnpike Road, 71 Hun,
109, 24 N. Y. Supp. 603. A Judgment, on the other hand, may be conclusive
evidence against parties. Thus, in an action against a city for personal in-
juries caused by an obstruction placed in the street by a contractor who was
constructing a sewer therein, notice was given to the contractor to defend.
It was held that a Judgment for plaintiff was an adjudication that the con-
tractor's wrongful act caused the injury, and was conclusive on defendant in
an action by the city on the contractor's bond to recover the amount of such
Judgment. City of New York v. Brady (Sup.) 30 N. Y. Supp. 1121.
1X8 Wright V. Tlleston (Minn.) 61 N. W. 823.
11* Thomas v. Joslin, 36 Minn. 1, 29 N. W. 344; Sanger v. Wood, 3 Johns.
Ch. 416; Washburn v. Insurance Co., 114 Mass. 175; Terry v. Munger, 121
N. Y. 161, 24 N. B. 272; Onrow v. Little, 115 N. Y. 387, 22 N. E. 346.
iisCf. Marahall v. Gilman, 47 Minn. 131, 49 N. W. 688; Savings Bank of
St Paul V. Arthler, 52 Minn. 98, 53 N. W. 812. And see Strong v. Strong, 102
N. Y. 69, 5 N. B. 799.
ii« Spear v. Tldball, 58 N. W. 708; Ahl v. Goodhart, 161 Pa. St 455, 29
Atl. 82. A recovery by wife for personal injury to herself does not bnr her
.» ■-. iirLZTT K"* narK [Lc. 4
^'.'•* . L.l-r...*!!- J. ux L'-«ia f .r lil:'»»t jDzr^iasaeaLr asaj ■©! be
iA : LJ^ -r ■-*-•— r ^•o. i^^j- ,>Ji-.-^ ji T:r«*4 -T iz-'-if??, tiierc are two
W-.^ L'.TPrrTrT. •I'-i.z-irr •iizLj-r*s. SfX 9Pv«raL aford tlie basia
i -♦-n-:/l Wi-wc T T*xj» 4c ? 2t. Otv T>s. •:!▼. A77. 27 SL
k, V xij, C: T. V >:c T*3- Ox. A?5. 2> 5. W. TSu VAizzi3
M. ; j:.:-.--.*^-: a-i.-*t *z.^ iz-^r. f r t^rt- azi» -^iz.! !u^ !^f r^c*iT«d
<,f •>: jiz.i. x.% t*c r-r A «.--r»K jr^l* riif* ty <».c=jT»Zf» of lie latter, to
»;. r. ;,..::.-.• T. ^« jrz- :^-. 'wtj? «i---?-i ii>d T ' -^ :"j*,r=«flt wms satisfied.
K -Ka* L-:-! •..,:• ^Ij d.i s>:< cj^rnte as a sa-l^fa-rri-B of a fcrmer jodam^nt
a^,-i ..'.»•. 'x^ a^^r.* f ,r i2ziir=^ f:r Lis de«?^l-^ and bs do Mr to an actkm for
'.''"-'r-.t a 23 :.*•. •:.* pr^-sri^t ■*rf*i:linT. tie «•>{:«• of tie l&n*is. Tbe damages
if,'^t. *r**-<. •.;!.: J .1 .r^Ti?!:*. GLa^^fe T. K-^arir, 5 C C A. 474, 56 Fed. 203. Ct
K'-ii^'.r T. «•« J^l-.r.. 42 F-id. .>S^-
i»' I''^*»?, p. f;r>j <•':••-'.. -.ivD t-c-tween false im^rl** sziect and malicioiis pros-
|J« y-irU^ig T. B'iL-a. «0 Hl-s. r«i. 2£> N. T. Scpp. PS5. A jodgment for
lr'";f.'i«?«i in rnt^Ui^ tre^s en Lir. !s of a ciarr-li, recovered by one who sued
nil a *l«-a'on of tt.o r-h'ir^h, cai»n«^t be pleaded br defendant as an adjadica-
f|//n In an a^rlon fcr the i«arr,e tr*'«r'3ss by the trustees of the church. Al-
n*",!! Y, JAuU', iC Ala. ITiii. 0 S/*iith. rjss. The rishi of a posthmnous child to
rt't'ifVt'r tUitfiU'^i'H for Uif d^ath r f h:8 father, caused by irrongfnl negligence.
1m not lmrr<H| liy a previous recovery by other parties of the damages sos-
Ut\iiot\ liy flH-in. N^Ih^'H v. Gaivestim. 11. & S. A. Ry. Co., 78 Tex. 621, 14 S.
W. ](f2], lU'i'ovtry by a biu<ljaDd for injuries to himself is not a bar to a
mth'*t'i\t\i'Ut action for Injuries to his wife, sustained at the same time, as a
rcMult of the «ime negligence. Texas & P. Ry. Co. v. Nelson (Tex. Civ. App.)
2t) H. W, 7S. And, generally, see Burgin v. Raplee, 10 Ala. 433, 14 South.
2or»; Hl/niton y. IlennesRcy, 78 Hun, 2S7. 28 N. Y. Supp. 855, and 29 N. Y.
Hiipp. nir»; Norton T. Norton (Ky.) 25 S. W. 750; Malsky v. Schnmacker
(Coin. IM.) 27 N. Y. Supp. 331; Guy v. Fisher & Burnett Lumber Co., 93
'l*cnn. 213. 23 H. W. 972.
11 9 (Juont V. Warren, 9 Exch. 379, 23 L. J. Exch. 121. Cf. Phillips y. Berry-
tnnn, 3 Doug. 2H0. A cause of action for damages for the negligent killing of
two liorNcH, at the same time and place, is entire and indiyisible^ and a re-
covi*ry lu a M<*parato action for the death of one is a bar to a subsequent ac-
Ch. 4] DISCHARGE OR LIMITATION BY OPERATION OP LAW. 325
of but a single suit, fresh damages may create a fresh cause of ac-
tion. Thus, in an action for slander, for the utterance of slander-
ous words on a particular occasion, only one action can be brought,
but any fresh slander creates a fresh cause of action. So each suc^
cessive act of trespass may constitute a distinct cause of action.
The test is whether, on the cause alleged in the action on which the
judgment is founded, the damage sued for in the second could have
been recovered.*** The mere fact that the injured person at the
time of recovery of judgment, did not recover all the damage con-
sequent upon the wrong, will not save him from the bar of the first
judgment Thus, where, aftw the first judgment was rendered in
an action of assault and battery, a piece of the injured person's skull
came out, the original judgment was a bar to another action."*
Mnal Judgment on the Merits,
A mere common-law nonsuit is not a determination of the cause
on the merits, and therefore does not bar another action;*"' nor
does a judgment of dismissal, on the plaintiff's own motion, without
Hon for the death of the other. St. Louis S. W. Ry. Co. v. Moss (Tox. Civ.
App.) 28 S. W. 1038. Punitive damages will be allowed for assault and bat-
tery, although defendant has been convicted and fined in a criminal court for
same wrong. Rhodes v. Rodgers, 151 Pa. St. 634, 24 Atl. 1044; Virgo v.
Virgo, 69 Law T. 4G0; Morch v. Raubitscfaek, 159 Pa. St 559, 28 Atl. 369;
Marceau v. Travelers' Ins. Co., 101 Cal. 388, 35 Pac. 856, and 36 Pac. 813:
People V. Leland, 73 Hun, 162, 25 N. Y. Supp. 943; Johnson v. Girdwood
(Com. PI.) 28 N. Y. Supp. 151; Thlsler v. Miller, 53 Kan. 515, 36 Pac. 1060;
Govin v. De Miranda, 79 Hun, 329, 29 N. Y. Supp. 347. A judgment for dam-
ages, recovered in a civil action for assault and battery, is not a bar to a
criminal prosecution against the plaintiff therein, since both he and defendant
may have been guilty. People v. Kenyon, 93 Mich. 19, 52 N. W. 1033.
120 Clerk & L. Torts. 120.
i»i Fetter v. Beale, 1 Ld. Raym. 33ft 692. So, where the owner of a patent
obtained a decree for a perpetual injunction against infringement, and was
awarded damages and profits for infringements occurring prior to a certain
time, it was held that he could not maintain a second suit against the same
defendant to recover damages and profits arising from other acts of infringe-
ment committed during the same period, but of which no evidence was given
In the former suit, and no recovery asked. Horton v. New York Cent. & H.
R. R. Co. (C. C.) 63 Fed. 897.
122 Merrick v. Hill (Sup.) 28 N. Y. Supp. 237. A nonsuit is but like the
blowing out of a candle, which a man, at his own pleasure, may light again.
Clapp V. Thomas, 5 Allen (Mass.) 158, 160. And see Harvey v. Large, 51
326 DISCHARGE AND LIMITATION OF LIABILITY FOB TORTS. [Ch. 4
the defendant's cMisent, bar another action for the same purpose.***
If, before the final submission of the case to the jury, the court dis-
niiKH it. this, it seems, ia a common-law nonsuit, and does not bar
subsequent action. Therefore, where one was injured in a rolling
mill, and at the close of his caise the court granted a motion to dis-
miss, it was held the plaintiff could subsequently sue for the same
injury."* A judgment cannot be pleaded in bar during the time for
appeal therefrom, and while a motion for a new trial is pending.*''
No judgment operates as an estoppel unless it is a judgment on the
merits.* '^^ A judgment by consent for the defendant, after a plea
in abatement has been sustained, is not on the merits.**^
SAME- DISCHARGE BY DEATH.
110. At common law, the aeath of either (a) the person
who did the wrong, or (b) who suffered the wrong,
discharged liability in tort. The death of a human
being would not support an action, even by per-
sons who stood to the deceased in the relation of
Barb. (N. Y.) 222; Lindvall v. Woods, 47 Fed. 195; Audubon v. Excelsior Ins.
(^o., 27 N. Y. 216; Brown v. Kirkbrlde, 19 Kan. 588; Wanzer v. Self, 30 Ohio,
378.
123 Pierce v. Hilton (Cal.) 36 Pac. 595. As to common-law retraxit, see
Walker v. St. Paul City R. Co., 52 Minn. 127-130, 53 N. W. 1068; Chit. Gen.
Prae. 1515.
i24Craver v. Christian, 34 Minn. 397, 26 N. W. 8; Woodling v. Knicker-
bocker, 31 Minn. 208, 17 N. W. 387; Andrews v. School Dist. No. 4, 35 Minn.
70, 27 N. W. 303. However, questions once determined by a court of com-
petent Jurisdiction, if the Judgment has become final, are conclusive on the
parties and their privies, without regard to the form in which the questions
were raised. MoNeely v. Hyde (La.) 15 South. 167.
128 Fresno Milling Co. v. Fresno Canal & Irrigation Co. (Cal.) 36 Pac.
412. But dismiRsnl by the trial court, at the end of plaintiff*s case, on the
ground that plnintiflTs testimony failed to show his right to recover, and
11 subsequent appeal to the supreme court of the state, and an afflrmant'e by
that court, is not an adjudication on the merits that can be pleaded in bar
when an action on the same wrong is commenced in the federal courts.
Lindvall v. Woods, 47 Fed. 195.
126 Taylor v. Larkin, 12 Mo. 103; Bell v. Hoagland, 15 Mo. 360; Houston
V, MuRgrove, 35 Tex. 594; Verhein v. Schultz, 67 Mo. 326.
12T Gordon v. Siefert, 126 Mass. 25.
Ch. 4] DISCHARGE OB LIMITATION BY OPERATION OF LAW. 327
master and servant, parent and child, or husband
and wife, for the recovery of damages for loss of
service or society. Exceptions to this principle cre-
ated by the early statutes, or by the courts, did not
substsmtially modify it.
History of Rule.
In 1606, in Higgins v. Butcher,* *• where the defendant had as-
saulted and beaten the plaintiff's wife, from which she died, it was
held that the plaintiff could not recover. All the case decided was
that, where the person to whom a wrong is done dies, the action
dies.**' The question was not raised again in England until 1808,
when, in Baker v. Bolton,**® Lord Ellenborough laid down his fa-
mous proposition, that "in a civil court the death of a human being
could not be complained of as an injury." The law was extended
in Osborne v. Gillott,*'* by holding that while a master can sue for
injury done his servant by wrongful act or negligence, whereby the
service of the servant is lost to his master, still, if the injury result
in the servant's death, the master's compensation is gone.
The early American cases were not in accord with Baker v. Bol-
ton.*'* The common-law rule, however, has been unanimously ac-
cepted by the courts of the vaiious states and of the United
States.*"
128 Yelv. 89.
i29TlfF. Death Wrongf. Act, c. 1.
"0 1 Camp. 493.
181 L. R. 8 Exch. 88.
132 Tiff. Death Wrongf. Act, § 6; Cross r. Guthery (1794) 2 Root, 90;
Ford v. Monroe (1838) 20 Wend. 210; Plummer v. Webb (1825) 1 Ware, 69,
Fed. Cas. No. 11,234; Carey v. P.erl.sliire Ry. Co. (1848) 1 Cush. 475. See
Palfrey v. Portland, S. & P. R. Co., 4 Allen. 55; Eden ^. Lexington & F. R.
Co. (1853) 14 B. Mon. 165; James v. Christie (1833) 18 Mo. 162; Shields v.
Yonge, 15 Ga. 349; Chick v. Railway Co., 57 Ga. 357; McDowell v. Railway
Co., 60 Ga. 320; Sullivan v. Union Pac. R. Co., 3 Dill. 334, Fed. Cas. No.
13,599; McGovem v. New York Cent.& H. R. R. Co., 67 N. Y. 417; Cutting
V. Seabury, 1 Spr. 522, Fed. Cas. No. 3,521.
133 Connecticut Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn.
265; City of Eureka v. Merrifleld (Kan.) 37 Pac. 113; Green v. Hudson River
R. Co., 28 Barb. 9; Insurance Co. v. Brame, 95 U. S. 754; Aslier v. Cabell,
328 DISCHARGE AND LIMITATION OF UABILITY FOR TORTS. [Ch. 4
Reason of Rule.
None of the many reasons assigned for the rule has been generally
accepted as satisfactory.
It has been suggested as a reason that process in tort was a sub-
stitute for private war, and was against the man, not against the
estate. The difference in practice has also been referred to as pro-
viding an explanation. 'T[f one doth a trespass to me, and dieth, the
act is dead, also, because it should be inconvenient to recover against
one who was not a party to the wrong." ***
In England it has been urged that the rule is based on the merger
of the wrong resulting in death into the felony involved. The suflS-
ciency of this reason has been denied in England, and in America
the doctrine has been generally repudiated.*'* Forfeiture,*** as an
explanation, is as objectionable.*'^ "Actio personalis moritur cum
persona" is a restatement, and not an explanation, of the rule.
Moreover, it does not apply to any one not a party to the action, as
the master, parent, or husband.*" Public policy, that enlightened
nations are unwilling to set a price on human life, that the value of
life is too great to be estimated in money, or that the law refuses
to recognize the interest of one person in the death of another, are
all unsatisfactory, if not absurd, reasons.*" It is of no practical
utility to search further for the reason of the rule.*** The rule is
barbarous, and rests on adjudication, in fact.***
1 0. C. A. e03, 50 Fed. 818-824; The Corsair, 145 U. S. 335-344, 12 Sup. Ct
040; Hyatt v. Adams. 16 Mich. 180-185 (collecting cases); Tiff. Death
Wrongf. Act, §§ 11, 13,' 14 (collecting cases).
184 Y. B. (1440) 19 Hen. VH.
18 6 Hyatt ▼. Adams, 1« Mich. 180; Carey t. Berkshire R. Co., 1 Cush. 475;
2 Bish. Cr. Law (2d Ed.) § 270.
18 6 Shields v. Yonge, 15 Ga, 340.
1ST Grosso V. Delaware, L. & W. R. Co., 50 N. J. Law, 317, 13 Atl. 233.
188 Green V. Hudson River R. Co., ♦41 N. Y. 294. 28 Barb. 9.
130 Osborne v. Gillett, L. R. 8 Exch. 88; Smith, Neg. (2d Ed.) 256; Hyatt
V. Adams, IG Mich. 180; Connecticut Mut Life Ins. Co. v. New York &. N.
. H. R. Co.. 25 Conn. 263,
1*0 Leonard, J., in Green v. Hudson River R. Co.. ^41 N. Y. 294.
1*1 Pol. Torts, 53. The rule rests more on artlflcial distinction than any real
principle, and savors more of the logic of the schoolmen than of common
sense. Hyatt y. Adams, 16 Mich. 180.
Ch. 4] DISCHARGE OB LIMITATION BY OPERATION OF LAW. 32^
Ap^ieation of Rule.
At common law, subject to the exceptions to be noted, death dis-
charged a tort, not only as to the sufferer who might die, so far as
his or her estate, master, parent, husband, or wife is concerned, but
it also operated as a discharge when the tort feasor died.***
A number of early English statutes modified the rule so far as to
allow executors or administrators the same action for injury done
to the personal estate of the deceased in his lifetime, whereby it has
become less beneficial to executors or administrators, as the deceased
might have had.*** This right was extended to cases where injury
w^as done to the freehold of the person who subsequently dies.***
Apart from these statutes, a remedy tor the wrongful act can be
pursued against the estate of the person by whom the act was com-
mitted when the property or proceeds of the property belonging to
another Jiave been appropriated by the deceased person.**" Indeed,
the English courts have gone very far towards limiting the discharge
by death to cases of mere personal torts.**' The maxim does not
apply where the cause of action arises ex contractu.**^ In cases of
quasi tort, — as, for example, where death is caused by the breach
of a carrier's contract for safe carriage, — the executor or adminis-
trator of deceased, although he could not sue in tort, might sue in
contract, and recover damages.*** Nor did it apply to damage to
property, as distinguished from person.
i4a2 Inst 301; WlUlams, Bx*rs (8th Ed.) pt. 4, bk. 2; Overend v. Gumey,
Ia R. 4 Ch. App. 701.
1*3 4 Edw. III. c. 725; 5 Edw. III. c. 5.
144 3 & 4 Wm. IV. c. 42: Hatchard v. Mege, 18 Q. B. DIv. 771; Kirk v.
Todd, 21 Ch. Div. 484-488.
146 PoweU V. Rees, 7 AdoL & K. 426; Phillips v. Homfrny, 24 Ch. Dlv. 439
(Baggallay, L. J., dissenting); Ashley v. Taylor, 10 Ch. Dlv. 708. Compare
with Hambly v. Trott, 6 Mod. 127; BaUey ▼. Blrtles. T. Raym. 71; Perkln-
son V. Gilford, Oro. Car. 539.
i4« Pulling V. Great Eastern Ry. Co., 9 Q. B. Dir, 110 (commenting on
Twycross v. Grant. 4 C. P. Dlv. 40).
14T Williams. Bx'rs (8th Ed.) p. 87.
i4» Knights V. Quarles, 2 Brod. & B. 102; Potter v. Metropolitan Dist Ry.
Co.. 30 Law T. (N. S.) 765; Bradshaw v. Lancashire Ry., L. R» 10 C. P.
189; Leggott v. Great Northern Ry. Co., 1 Q. B. Div. 599. Doctrine sustained
In The City of Brussels, 6 Ben. 370, Fed. Cas. No. 2,745; Wlnnegar's Ad'mr
V. Central Passenger Ry. Co., 85 Ky. 547, 4 S. W. 237. It was held not to
330 DISCUARQB AND LIMITATION OF LIABILITY FOR TORTS. [Ch. 4
111. Except as modiflel by statute, the common-law rule
as to discharge by death remains in force. But, al-
most universally, direct legislation has practically
abrogated it by creating a new action.
The English statute ("Lord Campbeirs Act") for compensating
the families of persons killed by accident was passed in 1846. Stat-
utes similar to this have been passed by most of the states of the
United States of America and by many of the provinces of Can-
ada."*
These acts do not repeal nor create an exception to the common
law. "A totally new action," said Lord Blackburn/ •• "is given
against the person who would have been responsible to the deceased
if the deceased had lived, — an action which * * * is new in its
species, new in its quality, new in its principle, in every way new,
and which can be brought by a person answering the description of
the widow, parent, or child who, under such circumstances, has suf-
fered pecuniary loss."
The constitutionality of the various acts giving a remedy in case
of death has not been seriously questioned,^ "^ but generally sustain-
ed; even where the remedy was made to apply exclusively to rail-
road corporations.***
apply to personal Injury inflicted by a deceased surgeon. Vittum v. GUman,
4S N. H. 410; Jenkins y. French, 58 N. H. 532. Et vide Cregin v. Brooklyn
OroBStown R. Co., 75 N. Y. 192, 83 N. Y. 595; Crowley v. Panama Ry., 30 Barb.
09; Hyde v. Wabash. St L. & P. R. Co., 01 Iowa, 441. IG N. W. 351.
i<» Tiff. Death Wrongf. Act, p. xvil. (Analytical Table of Statutes).
100 Seward v. Vera Cruz, L. R. 10 App. Cas. 59; Blake v. Midland Ry. Co.,
18 Q. B. 93, 21 Law J. Q. B. 233; Whltford v. Panama R. Co., 23 N. Y, 465;
Littlewood V. Mayor, etc., 89 N. Y. 24; Russell v. Sunbury, 37 Ohio St 372;
Hamilton y. Jones, 125 Ind. 176, 25 N. E. 192; Hulbert v. City of Topeka, 34
Fed. 510; Mason y. Union Pac. R. Co., 7 Utah, 77, 24 Pac. 796.
101 South Western Ry. Co. y. Paulk, 24 Ga, 356; Board of Shelby Co. v.
Scearce, 2 Duv. (Ky.) 576; Georgia Railroad & Banking Co. v. Oaks, 52 Ga.
410.
102 Boston, C. & M. R. v. State, 32 N. H. 215; Louisville Safety- Vault &
Trust Co.i^. Louisyille & N. R. Co., 92 Ky. 233, 17 S. W. 567. Compare Smith
y. Louisyille Ry., 75 Ala. 449. And, generally, see Denver, S. P. & P. Ry. Co.
y. Woodward, 4 Colo. 162; Chicago, St L. & N. O. R. Co. v. Pounds, 11 Lea.
(TennJ 127.
Ch. 4] DISCHARGE OR LIMITATION BY OPERATION OF LAW. 33 1
The authorities are about equally divided as to whether these
statutes are to be liberally or strictly construed. On the one
hand, it is said that they are remedial, and should consequently re-
ceive a liberal construction."^ On the other hand, it is said that
they are in derogation of the common law, and should consequently
receive a strict interpretation.***
Except so far as modified by statute, the common-law rule as to
effect of death on causes of action sounding in tort remains in full
effect. Accordingly, unless the statute expressly provides to the
contrary, a cause of action sounding in tort, and not falling within
the common-law exceptions, abates on the death of the wrongdoer,
and cannot be maintained against his personal representatives.* °*
The Statutory Action,
In order that a cause of action under Lord Campbell's act and
similar statutes shall exist, it is ordinarily necessary that the follow-
ing circumstances concur: (1) That the death shall have been caused
by such wrongful act, neglect, or default of the defendant that an
action might have been maintained therefor by the party injured,
if death had not ensued; **^® (2) that there be in existence some one
IBS Tiff. Death Wrongf. Act, c. 2, § 32, collecting cases.
IB* Tiff. Death Wrongf. Act, c. 2, $ 32, collecting cases.
IBB Green v. Thompson, 26 Minn. 500. 6 N. W. 376; Hamilton v. Jones, 125
Ind. 176. 25 N. E. 192; Pennsylvania Co. v. Davis, 4 Ind. App. 51, 29 N. i!i.
425. Compare Yertore v. Wiswell, 16 How. Prac. 8, and Doedt v. Wiswell, 15
How. Prac. 128, with Norton v. Wiswell, 14 How. Prac. 42, ajid Hegerleh v.
Keddie. 99 N. Y. 258, 1 N. E. 787; Moriarlty v. Bartlett, 99 N. Y. 651, 1 N. E.
794. Et vide Pesslnl v. WlUcins, 54 N. Y. Super. Ct. 146; Davis v. Nichols,
54 Ark. 358, 15 S. W. 880; Russell v. Sunbury, 37 Ohio St. 372; Moe v. Smiley,
125 Pa. St 136, 17 Atl. 228. But an action for per&onal Injury does not abate
after verdict by death of plaintiff. Cooper v. Railway Co., 55 Minn. 134,
56 N. W. 588. And see Lyons v. Third Ave. Ry. Co. (1867) 7 Rob. (N. Y.)
605; Wood v. Philips (1871) 11 Abb. Prac. (N. S.) 1; Kelsey v. Jewett, 34
Hun. 11; Corbett v. Twenty-Third St Ry. Co., 114 N. Y. 579, 21 N. E. 1033.
iB« Therefore, where an owner of land wrongfully held by another Is not
clvlUy liable for the killing of the occupant while resisting the owner's at-
tempt to regain possession without the use of more force than was reason-
ably necessary. Burnham v. Stone, 101 Cal. 164, 35 Pac. 627. As to willful
homicide, see Rome R. Co. v. Bamett (Ga.) 20 S. B. 355. But the variations
In statutory enactments appear conspicuously in this: That sometimes the
statutory plaintiff (as the widow or next of kin) can recover when the deceased
332 DISCHARGE AND LIMITATION OP LIABILITY FOR TORTS. [Ch. 4
of the persons for whose benefit the action may be brought; (3) that
the actual party plaintiff be such a one as the statute prescribes;
(4) that the time within which the action must be brt)ught has not
elapsed; and (5) according to some authorities, that the beneficia-
ries, or some one of them, i^all have suffered pecuniary loss by rea-
son of the death.^*^
In order that recovery may be had by statutory parties, the con-
duct complained of, and producing the death, must have the essen-
tial elements of a tort, so that the party injured might himself have
maintained the action. There must be a breach of duty by the de-
fendant. The duty may be created by common law, as where death
results from the use, custody, or control of dangerous property.^"*
The duty may arise out of a state of facts of which a contract is a
part, as where the master has been guilty of a breach of duty to
the servant, resulting in the servant*s death; ^*** so as between com-
mon carrier and passenger,^*® landlord and tenant,^*^ vendor and
purchaser.^®^ The duty may be prescribed by statute;"* nor is it
material that such statute was enacted subsequently to the action
could not had he been merely hurt, not killed. Clark v. Railway Co., 160
Mass. 39, 35 N. E. 101.
107 Tiff. Death Wrongf. Act, ft GO.
1B8 Kllx V. Nieman, 68 Wis. 271, 32 N. W. 223; Simmons v. Bverson, 124
N. Y. 319, 26 N. E. 911; Trask v. Shotwell, 41 Minn. 66, 42 N. W. 609. Thus,
if a vicious dog caused a runaway, and thereby death of deceased, its owner
is liable under the statute. Mann v. Wieand, 81 Pa. St 243. 4 Wkly. Notes
Cas. 6. So, where death was produced by explosion of blast Munro v.
Reclamation Co., 84 Cal. 515, 24 Pac. 303.
150 Hutchinson v. York N. & B. R. Co., 5 Exch. 341; Kumler v. Junction
R. Co., 33 Ohio St 150; Congrave v. Southern Pac. R. Co., 88 Cal. 360, 26>
Pac. 175; De Forest v. Jewett, 88 N. Y. 264; Titus v. Bradford, B. & K. R.
Co., 136 Pa, St. 618, 20 Atl. 517.
i«o Sheridan v. Brooklyn Ry., 36 N. Y. 39.
i«i Moore v. Steel Co. (Pa. Sup.) 7 Atl. 198; Albert v. State, 66 Md. 325,.
7 Atl. 697; State v. Boyce, 73 Md. 469, 21 Atl. 322.
lea Davis v. Guamleri, 45 Ohio St 470, 15 N. E. 350; Brunswi® v. White,
70 Tex. 504, 8 S. W. 85.
103 Thus, railroad companies are liable for death resulting from failure to
give signals as required by statute. Becke v. Missouri Pac. Ry. Co., 102 Mo.
544, 13 S. W. 1053; Palmer v. New York Cent & H. R. R. Co., 112 N. Y. 234,
19 N. E. 678; Galveston, H. & S. A. Ry. Co. v. Cook (Tex. Sup.) 16 S. W.
1038. So druggist is liable for clerk's failure to label poison resizLting in
Ch. 4] DISCHARGE OB MMIlAllON BY OPEUATION OF LAW. 333
creating a right of action for injury resulting in death.*'* The
breach of duty must be the proximate legal cause of the death.^**
The plaintiff must not have disentitled himself by his own act.**°
In order that there may be a recoTery, it is necessary that the
statutory beneficiaries exist at the time the action is brought.**'
ITiese beneficiaries are usually the widow and next of kin. It is
sufficient if there be either the widow or next of kin. It is not nee-
death. Osborne ▼. McMaster, 40 Minn. 103, 41 N. W. 643; Nugent v. Van-
derveer, 39 Hun, 323.
i«» Merkle v. Beunin^on Tp., 58 Mich. 156, 24 N. W. 776. Compare, con-
tra, All V. Barnwell Co., 29 S. C. 161, 7 S. E. 58.
i«» Jackson v. St Louis, I. M. & S. Ry. Co., 87 Mo. 422; Railway Co. v.
Vnlleley, 32 Ohio St. 345; Haley v. Chicago North Western Ry. Co., 21 Iowa,
13.
!•• Thus, if it be charged that death was caused by assault and battery,
self-defense might be a justification. Besenecker v. Sale, 8 Mo. App. 211.
Compare Nichols v. Winfrey, 79 Mo. 544; Brooks v. Haslam, 65 Cal. 421, 4
rac. 399. And see Eraser v. Freeman, 56 Barb. 234; Meyer v. King (Miss.)
16 South. 245; White y. Maxey, 64 Mo. 552; Morgan v. Durfee, 69 Mo. 469.
So, in order to recover where death is charged to have been occasioned by
negligence, the beneficiaries cannot recover, unless they show a breach of
duty on the part of defendant. Post, p, 918. If the deceased has been guilty
of contributory negtligence, it Is generally held that the statutory beneficiaries
cannot succeed. In Kentucky, however, contributory negligence is no de-
fense where the life of any person is lost by willful negligence. Gen. St. c.
67, I 3; Pennsylvania R. Co. v. Bell, 122 Pa. St 58, 15 Atl. 561; Central
Railroad & Banking Co. v. Kitchens, 83 Ga. 83, 9 S. B. 827; Gay v. Winter,
34 Cal. 153; Qulnn v. New York, N. H. &, H. R. Co., 56 Conn. 44. 12 Atl. 97;
Newman v. Railway Co., 80 Iowa, 672, 45 N. W. 1054. Contributory negli-
'gence of beneficiaries has generally been held a bar, although not in Iowa,
Virginia, and Ohio. Tiff. Death Wrong! Act, §§ 69-71. Contributory neg-
ligience of personal representatives, unless they are the sole beneficiaries,
is no bar. • Indiana Manuf'g Co. ▼. MiUican, 87 Ind. 87. Contributory negli-
gence of parents, in an action by them, is a bar. Tiff. Death Wrongf. Act,
S 70. But see Clark v. Railway Co., 160 Mass. 3ti, 35 N. E. 104.
i«T Woodward v. Railway Co., 23 Wis. 400; Wiltse v. Town of TUden, 77
Wis. 152, 46 N. W. 234; State v. Baltimore & O. R. Co. (Md.) 17 Atl. 88; West-
cott V. Central Vt R. Co., 61 Vt 438, 17 Atl. 745; Loagwe y. Railroad, 91
Tenn. 458, 19 S. W. 430; 'Off. Death Wrongf. Act, § 80, note 2, collecting
cases; Schwarz v. Judd, 28 Minn. 371, 10 N. W. 208; Barnum v. Chicago,
M. & St. P. Ry. Co., 30 Minn. 461, 16 N. W. 364. It is otherwise, however,
In West Virginia and North Carolina. Tiff. Death Wrongf. Act, § 81.
334 DISCHARGE AND IJMITATION OF LIABILITY FOR TORTS. [Ch. 4
essary that there should be both.^'* A posthumous child is next of
kin.*«* An illegitimate child is generally not within the act; *'* nor
is its mother.^'^ It would seem that the husband is not included in
the next of kin, unless the statute expressly give him the right of
action.*" It is not necessary that the beneficiaries should be resi-
dents of the state under whose law the remedy is sought.^ ^*
The statutes usually provide who shall be the party plaintiff.
When the personal representatives of the deceased are so named,
and bring suit, they have no beneficial interest in tht recovery, but
are merely conduits for the transmission of money recovered on the
judgment to the persons beneficially entitled to recover.*^* The
right to sue is confined to the persons authorized by statute. The
beneficiaries cannot sue when the statute authorizes suit by personal
i«« City of Chicago v. Major, 18 111. 349; McMahon v. City of New York,
33 N. Y. 642; Haggerty v. Central R. Co., 31 N. J. Law, 349.
i«o The George and Richard, 24 Law T. (N. S.) 717; Nelson v. Galveston,
H. & S. A. Ry. Co., 78 Tex. 621, 14 S. W. 1021; Texas & P. Ry. Co. v. Rob-
ertson, 82 Tex. 657, 17 S. W. 1041.
170 Dickinson v. Railway Co., 33 Law J. Exch. 91; Good v. Towns, 56 Vt.
410; Marshall v. Wabash R. Co., 46 Fed. 269. Compare MuhPs AdmY v.
Michigan Southern R. Co., 10 Ohio St. 272.
171 Gibson v. Midland Ry. Co., 2 Ont 658; Harkins v. Philadelphia & R.
R. Co., 15 Phila. 286.
172 Compare Dickins v. New York Cent R. Co., 23 N. Y. 158, with Drake
V. Gilmcre, 52 N. Y. 389. And see Warren v. Englehart, 13 Neb. 283, 13 N.
W. 401; Steel v. Kurtz, 28 Ohio St 191; Bream v Brown, 5 Cold. 168; Traf-
ford V. Adams Exp. Co., 8 Lea, 96; East Tennessee, V. & G. Ry.Co. v. Lilly,
90 Tenn. 563, 18 S. W. 243. Parties, heirs at law, St. Louis, I. M. & S, Ry.
Co. V. Needham, 3 C. C. A. 129, 52 Fed. 371. Parent Grimsley v. Hanklns,
46 Fed. 400 (Code Ala. 1886. § 2588). Widower not, Gen. St Kan. 1889, par.
4518; W. U. Tel. Co. v. McGiU, 6 C. C. A. 521, 57 Fed. 699. Mother, for death
of bastard child, Marshall v. Railroad Co., 46 Fed. 269 (Rev. St Mo. 1889,
S 4425). Personal representative of nonresident MaysviUe St. R. & T. Co.
V. Marvin, 8 C. C. A. 21, 59 Fed. 91; Cf. Id., 49 Fed. 436.
173 Philpott V. Missouri Pac. Ry., 85 Mo. 164; Luke v. Calhoun Co., 52 Ala.
115; Chesapeake Ry. v. HIggins, 85 Tenn. 620, 4 S. W. 47.
i74Leggott V. Great Northern Ry., 1 Q. B. Div. 599; Hegerich v. Keddie,
99 N. Y. 258, 1 N. E. 787; Lamphear v. Buckingham, 33 Conn. 237; Stewart
v. Terre Haute & I. R. Co., 103 Ind. 44, 2 N. E. 208. In Maine, and in cer-
tain cases in Massachusetts, the remedy is by indictment. In Maryland, the
action is not in the name of the state. TlfiP. Death Wrongf. Act, § 90.
Ch. 4] DISCHARGE OR LIMITATION BY OPKRATION OF lAW. 335
representatives;*^* and, on the other hand, the personal represen-
tatives cannot sue when the beneficiaries are the statutory plain-
tiffs."*
The time within which an action may be commenced is usually
prescribed by the statute. In the absence of such special limita-
tion, the period in w^hich the action may be commenced is governed
by the general provisions regulating the limitation of actions, so far
as they may be applicable.*"
SAME— STATUTES OF LIMITATION.
112. Uability for torts is discharged or barred by the nin-
ningr of the statute of liinitations.^^*
113. The statute begins to run against a cause of action in
tort —
(a) From the time the law presumes damage; or
(b) From the time of the happening of damage, when
not presumed, except in case of fraud.
Both the cases to which a statute of limitations is applicable *'•
and the time it begins to run depend in a large measure upon the
"6 Schefla«r v. MinneapoUs & St L. Ry. Co., 32 Minn. 125, 19 N. W. 060;
Wilson V. Bumstead, 12 Neb. 1, 10 N. W. 411; Weldner v. Rankin. 26 Ohio
St 522.
176 Miller y. South Western Ry. Co., 55 Ga. 143; Oibbs y. Hannibal, 83
Mo. 143.
177 SchUchting y. Wintjen, 25 Hun, 626. The time from which the statute
limitation begins to run is determined by the statute. It is sometimos the
period at which it accrues,— that is, death. Kennedy y. Burrler, SO Mo. 128;
Hanna y. JefTersonyille Ry., 32 Ind. 113. It sometimes commences to run
upon the appointment of an administrator. Andrews y. Hartford & N. II.
R. Co., 34 Conn. 57; Ix>uisyille. E. & St. L. R. Co. y. Clarke, 152 U. S. 230,
14 Sup. Ct 579. Indiana statute, two years. Rey. 8t Ind. 1881, S 284.
178 Roberts y. Read, 16 East, 215; Gillon v. Boddington, 1 Russ. ik M. lOt;
Nicklin y. Wimams, 10 Exch. 259; Backhouse y. Bonomi, 9 H. L. Cas. 503:
Whitehouse y. Fellowes, 10 C. B. (N. S.) 765; Lamb y. Walker, 8 Q. B. Dlv.
389; MitcheU y. Darley Main Colliery Co., 14 Q. B. Diy. 125.
170 Martin y. W. U. Tel. Co., 6 Tex. Cly. App. 619, 26 S. W. 136 (injury to
person); Jorgensen y. Minister, etc. (Com. PI.) 26 N. Y. Supp. 876 (injury to
536 DISCHARGE AND LIMITATION OF MABIUTY FOR TORTS. [Ch. 4
construction of the particular enactment under consideration.^**
This will account for much, but not for all, of the confusion on the
cases on this point."* The statute of limitations of the forum gov-
erns, unless the statute giving the right of action prescribes the lim-
itation.*"* But it is a general principle, of common application to
statutes of limitations as to contracts and torts, that the bar com-
mences when the cause of action accrues."* Accordingly, in the
person) ; Ft. Worth & D. C. Ry. Co. v. McNuIty (Tex. Civ. App.) 26 S. W. 414
(trespass); Van Horn v. Van Horn (N. J. Err. & App.) 28 Atl. 669 (conspira y
to injure business).
180 wiiere a statute provides' that actions against a municipal corporation
for not keeping a highway In proper repair* must be brought within three
months after the damages haye been sustained, and the plaintilTs mare fell
through a bridge, and died four months after the injury received, it was held
that the statute began to run from the occurrence of the accident, not from
the death. MiUer v. North Fredericltsburgh, 25 U. C. Q. B. 31. And see
Weiser v. McDowell (Iowa) 61 N. W. 1094.
181 A state statute not pleadable in bar of an act'on for Infr ng ment of
patent, McGinnis v. Erie Co., 45 Fed. 91 (prescription).
182 In an action for death, Munos v. Southern Pac. Co.. 2 C. C. A. 1(3, 51
Fed. 188. But, an action for bodily injuries caused by a train wreck being
good wherever the common law prevails, the period of limitations is fixed by
the law of the forum, not by that of the place of injury. Williams v. St Louis
& S. F. Ry. CJo., 123 Mo. 573, 27 S. W. 387. An action for death by wrongful
act, occasioned in a state which gives three years for suirg therefo*, may bi
maintained in another state, which gives only two years, fit tny t!me w thi i
three years. Theroux v. Northern Pac. R. Co., 12 C. C. A. 52, (>4 Fed. 84. A
state statute (Rev. St. Wis. 1858, c. 138) limiting actions on Judgments (f
courts of the state to a certain time, and on Judgments of courts of any state
or of the United States to a shorter time, held not to bar an action on a Judg-
ment of a federal court within the state by the sho ter period of limitation.
Metcalf V. City of Watertown, 153 U. S. G71, 14 Sup. Ct. 947.
188 Wood, Lim. I 117; Moline Plow Co. v. Webb, 141 U. S. 616, 12 Sup. Ct.
100; New Holland Tumpilce Co. v. Farmers' Ins. Co., 144 Pa. St. 541, 22 Atl.
923. And see Hanlon v. Union Pac. Ry. Co., 40 Neb. 52, 58 N. W. 510. Nui-
sance, Delaware & R. Canal Co. v. Wright, 21 N. J. Law, 4G9; I*cwe B v.
Council Bluffs, 45 Iowa, 652; Meiners v. Frederick Miller Brewing Cj., 78
Wis. 364, 47 N. W. 430; continuing nuisance. Cedar Lake Hotel Co. v. Ceda*
Lake Hydraulic Co., 79 Wis. 297, 48 N. W. 371; Austin & N. W. Ry. Co. v. A i-
derson, 79 Tex. 427, 15 S. W. 484; City of North Vernon v. Voegler. 89 Ind. 77.
Statute of limitation as to waste, SherriU v. Conner. 107 N. C. 630, 12 S. B
588; Powell v. Dayton, S. & G. R. Co., 16 Or. 33, 16 Pac. 863; In case of death,
Nestelle v. Northern Pac. Co., 56 Fed. 261. That feebleness of mind and bed/
Ch. 4] DISCHARGE OB IJMITATION BY OPERATION OF LAW. 337
case of a single trespasB to land, inasmuch as the law presumes dam-
ages the moment the close of another is broken, the bar of the stat-
ute commences then.*** In conversion, on the other hand, the
wrong to his chattels, of which an owner can successfully complain,
is often not complete until he has demanded them of the person who
has taken them.*®*^ Under such circumstances, the cause of action
arises, and the statute commences to run, when such person, on de-
mand, refuses to deliver up the goods.*** But if demand is not
essential to create liability (which, in many instances, it is not), then
the bar of the statute starts whenever the right to sue is complete."*
In general, the statute runs from the time of the conversion, when-
ever that may be.*** In the case of any other improper inter-
does not prevent the running of statute, see RuKan v. Sabin, 10 U. S Aup.
519, 3 C. C. A. 578, 53 Fed. 415. Generally, see Gains v. Bngel, lU D C. :2i;
BeU V. Railway Co., 68 Miss. 19, 8 South. 508; CburcbiU v. Pacinc Imp. Co.,
96 Cal. 940, 31 Pac. 560 (against innkeeper).
18* Herreshoff v. Tripp, 15 R. I. 92, 23 Atl. 104; Huntei- v. Burlington, C. R.
& N. R. Co., 84 Iowa, 605, 51 N. W. 64. But of. W. U. Tel. Co. v. Moylo. 51
Kan. 203, 32 Pac. 805. And see Zumwalt v. Dickey, 12 Cal. 156, 28 Par. 212
(animals); Strlckler v. Midland Ry. Co., 125 Ind. 412, 25 N. E. 455; Cass v.
Pennsylvania Co., 159 Pa. St. 23^ 28 Atl. 161 (obstructing abutter's riglit of
street). See Omaba & R, V. R. Co. v. Moscbel, 38 Neb. 281, 56 N. W. 875. But
see (passage of time does not bar right of city to restrain obstruction of a
highway) Reed v. City of Birmingham, 92 Ala. 339, 9 South. 161; post, p. 804,
"Nuisance." And see State v. Railway Co., 54 Ark. 608, 16 S. W. 657. Further,
as to wrongful use of street, see Porter v. Midland Ry. Co., 125 Ind. 476, 2>
N. B. 556.
185 Tldd V. OvereU [1893] 3 Reports, 657, 3 Ch. 154; Muller v. Dell [1891] 1
Q. B. 468; Edwards v. Clay, 28 Beav. 145; City v. Goff, 38 III App. 362; Moore
V. WiUiams (City Ct. Alb.) 26 N. Y. Supp. 766; Fuller v. O'Ncall, 82 Tex. 417,
18 S. W. 481; Munnerlyn v. Augusta Sav. Bank, 88 Ga. 3 {3, 14 S. E. 5rj4;
County Board of Education v. State Board of Education, 107 N. C. 306, 12 S. E.
452.
. i8« Haire v. Miller, 49 Kan. 270, 30 Pac. 482.
188 One who coUects money on a policy of insurance, for the beneficiary,
without any right to retain It, or any trust duty to discharge in respect to it,
is liable to an action by the beneficiary, for its recovery, without any previous
demand. And hence the beneficiary's right of action accrues when the money
is collected. Wood v. Young, 141 N. Y. 211, 36 N. E. 193. Cf. Adams v. Clin,
140 N. Y. 150. 35 N. E. 448.
189 Kelsey v. Griswold, 6 Barb. (N. Y.) 436; Haire v. Miller, 49 Kan. 270, 30
LAW OP TORTS— 22
338 DISCHARGE AND LIMITATION OF UABIIJTY FOR TORTB. [Ch. 4
ference with property, prescription runs against an action for dam-
age from the time of trespass.**^ On the same principle, the statute
of limitations begins to run against an action for damages by a fa-
ther for the seduction of his minor daughter from the time of the
seduction, that being the cause of action; subsequent results not
giving a new cause of action, but only affecting the damages.* •^ In
many actions on quasi tort, the cause of action arises, and the bar
of the statute commences, upon the breach of the contract.**'
If, however, tlie cause of action cannot, under any circumstances,
rest on the doing of the thing alone, but depends also, necessarily,
upon the resulting damage, then the statute commences to run, not
from the time of the wrongful conduct, but of the occurrence of the
liarni.*"^ Thus, where one owned houses built upon land cdntigu-
ous to the land of other persons, and the owner of the mines under
the land of all these persons so worked the mines that the land of
one of such other persons sank, and, after more than six years (the
period of limitation in actions on the case), their sinking caused an
injury to the plaintiff's houses, it was held that his right of action
was not barred, as the tort to him was the damage caused by the
working of the mines, and not the working itself.*'* And so, where
l^ac. 482; Jefferson School Tp. of Green Co. v. School Town of Washington,
5 Ind. App. 586, 32 N. E. 807; ShufQer v. Tunier, 111 N. O. 297, 16 S. E. 417;
Davenport v. Prince, 56 Fed. 186; Qulnn v. Gross, 24 Or. 147, 33 Pac. 535;
Gregory v. Fichtner (Cora. PI.) 14 N. Y. Supp. 891.
1*0 As to wrongful seizure, Crow v. Manning, 45 La. Ann. 1221, 14 South.
122; Wilkinson v. Verity, L. R. 6 C. P. 206.
i8iDunlap V. Linton, 144 Pa. St. 335, 22 Atl. 819. See, also, Davis v.
Young, 90 Tenn. 303, 16 S. W. 473; Hogan v. Wolf, 57 Hun, 588, 10 N. Y.
Supp. 896 (enticement); Edwards v. Woodbury, 156 Mass. 21, 30 N. B. 175
(furnishing liquor to husband).
102 Lattin v. Gillette, 95 Cal. 317, 30 Pac. 545; Russell & Co. v. Polk County
Abstract Co., 87 Iowa, 233. 54 N. W. 212. And see Fadden v. Satterlee. 43
Fed. 568 (malpractice). So, In actions against common carrier, it has been
held that the cause of action commences at the time of negligent conduct, not
of damage. Lattin v. Gillette, 95 Cal. 317, 30 Pac. 545; Pennsylvania Co. y.
Chicago, M. & St. P. R. Co. (111. Sup.) 33 N. E. 415, 44 111. App. 132.
103 Mitchell v. Darley Main Colliery Co., 14 Q. B. Dlv. 125, reviewing cases.
i»* Underh. Torts, c. 4, p. 66; Backhouse v. Bonoml, 9 H. L. Cas. 503;
Whllehouse v. Fellowes, 10 C. B. (N. S.) 765; Devery v. Grand Canal Co.,
8 Ir. C. L. 511.
Ch. 4] DISCHARGE OR LIMITATION BY OPERATION OP LAW. 339
crops are overflowed by reason of a railway embankirent, if the na-
ture of the embankment was.snch that the injury complained of was
uncertain and contingent, such as might never happen, the damage
was not original, in the sense that it necessarily resulted from the
erection of the embankment, and consequently the statute of limi-
tations did not begin to run until the crops were destroyed.**'* So,
in ordinary actions for negligence, the cause of action and the run-
ning of the statute date from damage, not from the conduct.* "•
Slander affords a peculiarly marked illustration of the principle
under discussion. In five cases (of which four are slander proper,
and one is libel) the law presumes damage to follow from the act of
speaking or writing the words, and the cause of action arises imme-
diately when the words are uttered. In all other cases the law does
not presume that damage must have followed from speaking the
words, and therefore the cause of action does not arise until dam-
age has in fact followed. In both cases, the cause of action is none
the less the resulting damage, and consequently the time of limita-
tion runs in both cases from precisely the sam« point, namely, the
happening of the damage.**^ Slander of a person's business is not
the conventional wrong of slander, so far as the statute of limita-
tions is concerned.***
19 5 St. Louis, I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S. W. Xil (foUowed
in St. Louis, I. M. & S. Ry. Co. v. Yarborough, 56 Ark. 612, 20 S. W. 515); Bon-
ner V. Wlrth, 5 Tex. Civ. App. 560. 24 S. W. 306; Bunten y. Chicago, R. L &
P. R. Co., 50 Mo. App. 414; Baker v. Leka, 48 111. App. 353: King v. U. S.. 59
Fed. 9. See, also, Ohio & M. R. Co. v. Neutzel. 143 111. 46, 32 N. B. 529. But
overflowing of lands is sometimes regarded as a treRpass. It is, accordingly,
regarded that the statute comnfences to run at the Urst overflowing. Hunt
V. Iowa Cent R. Co., 86 Iowa, 15, 52 N. W. 668; Clark v. Dyer, 81 Tex. 339,
16 S. W. 1061. Cf. Hempstead v. Carglll, 46 Minn. 141, 48 N. W. 558.
i»« Board of Com'rs of Wabash Co. v. Pearson, 120 Ind. 426, 22 N. B. 134.
And in an action against a railroad company for personal injuries caused by
its negligence, an amendment alleging that the acts of defendant were will-
fully done does not materially alter the cause of action, so as to make a plea
of limitations available. Bsrey v. Southern Pac. Co., 103 Cal. 541, 37 Pac. 5(X).
But a cause of action against attorney for negligence arises at lime of negli-
gence, though damage arises later. Wilcox v. Plummer's Ex'rs, 4 Pet 172.
197 Saunders v. Bdwards, 1 Sid. 95.
i»8Van Horn v. Van Horn, 53 N. J. Law, 514, 21 Atl. 1069; MitcheU v.
Darley Main Colliery Co., 14 Q. B. Dlv. 125-137; Pig. Torts, 31.
\
840 DISCHARGE AND LIMITATION OF LIABILITY FOR TORTS. [Ch. 4
In cases of actual fraud, the usual rule is that the statute of lim*
.itations against judicial action commences to run at the time of the
discovery of the wrong, or at the time when the injured party was,
by circumstances, sufficiently put upon such inquiry that he could
and should have discovered the wrong, but not from the time of the
wrong, or of the harm suffered.*** But the statute begins to run
against an action to recover money obtained by a constructive fraud
from the date of act committed.***
SAME— COMPLIANCE WITH STATUTORY BBQUIBEMEHTS.
114. Compliance with statutory requirements may consti-
tute a full discharge of a tort.
As has been considered, no action lies for damages incident to
authorized act. On the same principle, if an alleged wrongdoer
has complied with si>eciflc requirements of law as to the conduct
resulting in damage complained of, no action lies. The cases in
which such matters arise are almost always in connection with
specific wrongs; so that they must be dismissed here with mere
reference. An illustration of a limitation before damage is to be
found in the multitude of enactments that an innkeeper is not lia-
ble for the loss of his guests' valuables, not delivered to him, if he
has provided a safe and suitable place in the office for their keep-
ing, and has posted notice so advising the guesta**^ An illustra-
tion of discharge after damage occurs is the common legislative
provision that a newspaper which has published a libel may rid
. i»o St. Paul. S. & T. F. R. Co. v. Sage, 4 U. S. App. 160, 1 0. 0. A. 256.
49 Fed. 315 (reversing 44 Fed. 817, and 32 Fed. 821); Lincoln v. Judd. 49 N.
J. Eq. 387, 24 Atl. 318; Hickhara v. Hlckham, 4G ^lo. App. 496; Myeis v.
Center. 47 Kan. 324, 27 Pac. 978; Jacobs v. Frederick, 81 Wis. 251, 51 N. W.
320; Horbach v. Marsh, 37 Neb. 22, 55 N. W. 280; Northrop v. HUl, 57 N. Y.
351; Knox v. Yow, 91 Ga. 307, 17 S. E. 654; Harrell v. Kea, 37 S. C. 369, KS
S. E. 42; Walker v. Pogue, 2 Colo. App. 149, 29 Pac. 1017; Chicago, T. & M.
C. R. Co. V. Titterington, 84 Tex. 218, 19 S. W. 472; Clausen v. Meister, 93 O I
555, 29 Pac. 232; Morgan v. Tener, 83 Pa. St. 305; Bates v. Pieble, 151 U. S.
149, 14 Sup. Ct. 277.
200 Davis V. Hawkins, 163 Pa. St. 228, 29 Atl. 746.
201 Post, p. 901. "Negligence"; "Contract Duty," note 400.
Ch. 4] DISCHARGE OF JOINT TOKTS. ii41
itself of at least a portion of its respongibility by publishing a re-
traction.'**
DISCHABGE OP JOINT TOBT8— JUDGMENT.
116. THE ENQLISH BITLE is that a judgment recovered
in an action brought against one of several joint
tort feasors is a bar to an action against the others,
although the judgment is not satisfied.
116. THE AMEBICAN BULE is that the injured party
who has elected to sue joint tort feasors separately
may prosecute the same until the amount of dam-
ages is ascertained by verdict and entered in judg-
ment; that a judgment against one joint tort feasor
is no bar to a suit against another for the same
wrong; but that the injured party can have only
one satisfaction. Such party, however, may take
his election de melioribus damnis, which, when
made, is conclusive as to all subsequent proceed-
ings. While the satisfaction of one judgment is
the satisfaction of the cause of action, the plaintiff
may collect costs in other judgments.
The English. Rvle.
The English rule, as stated in the black-letter text, was laid
down in Brown v. Wooton.^®' It is said that the earlier English doc-
trine was the other way.*^* The rule as stated, however, is un-
doubtedly in force at the present time. The reason for this rule is
that the damages are reduced to a certainty, that the cause of ac-
tion is changed into a matter of record, which is of a higher na-
ture, and the inferior is merged in the higher. Although there are
several defendants, there is only one cause of action. "The judg-
ment of a court of record changes the nature of that cause of ac-
202 Post, p. 520, "Libel & Slander"; "Statutoi-y Defenses.'^
»08 Cro. Jac. 73; Term 3, Jac. I.
S04 2 Kent; Gomm. 3SS.
342 DISCHARGK AND LIMITATION OF LIABILITY FOR TOKTS. [Ch. 4
tion, and preyents its being the subject of another suit; and the
cause of action, being single, cannot afterwards be divided/' *••
The American Rule.
In 1806, Chief Justice Kent »<»• overruled Brown v. Wooton. The
courts of Virginia, without much consideration, have held to the
English doctrine.***^ llhode Island also holds to the same rule.*^*
The general American doctrine, however, is as stated in the black-
letter text^^* The supreme court of the United States has accept-
ed it fully. In Lovejoy v. Murray,^*® Mr. Justice Miller reviews tht*
205 Klnff V. Hoare, 13 Mees. & W. 594; Brinsmead v. Harrison, L. R. 7 C.
P. 547; Buck land v. Johnson, 15 C. B. 145. Clifford, J., in Sessions v. John-
son, 95 U. S. 347-351, citing Heydon's Case, 11 Coke, 50; White v. Fhnbrick.
5 Greenl. (Me.) 147; NicUerbocker v. Colver, 8 Cow. (N. Y.) Ill; O'Shea v.
Klrker, 4 Bosw. 120; Lovejoy v. Murray, 3 WaU. 1.
206 Livingston v. Bishop, 1 Johns. 290.
807 Wilkes V. Jackson, 2 Hen. & M. (Va.) 355.
ao8 Hunt v. Bates, 7 K. L 217.
200 Cooley, Torts, 138, citing Livingston v. Bishop, 1 Johns. 290; Elliott v.
Porter, 5 Dana (Ky.) 299; Thomas v. Rumsey, 6 Johns. 291; Barrett v. Third
Ave. R. Co., 45 N. Y. G28; Woods v. Pangbum, 75 N. Y. 495; Gross v. Penn-
sylvania P. & B. R. Co., 05 Hun, 191, 20 N. Y. Supp. 28; Sharp v. Gray, 5
B. Mon. (Ky.) 4; United Society v. Underwood, 11 Bush (Ky.) 265; Elliott
V. Hay den, 104 Mass. 180; Knight v. Nelson, 117 Mass. 4.")8. See Stone v.
Dickinson, 5 Allen (Mass.) 29; Brown v. Cambridge, 3 Allen (Mass.) 474;
Griffe v. McClung. 5 W. Va. 131; Morgan v. Chester, 4 Conn. 387; Ayer v.
Ashmead, 31 Conn. 447; Wright v. Lathrop, 2 Ohio, 33; Sanderson v. Caldwell,
2 Alkens (Vt.) 195; Stewart v. Martin, 16 Vt. 397; Turner v. Hitchcock, 20 Iowa,
310; McGehee v. Shafer, 15 Tex. 108; Union, etc., Co. v. Shacklett, 19 111. App.
145; Allen v. Wheatley, 3 Blackf. (Ind.) 332, approved In Fleming v. Mc-
Donald, 50 Ind. 278; White v. Philbrick, 5 Me. 147; Golding v. Hall, 9 P<m1.
<Ala.) 169; Blann v. Crocheron, 20 Ala. 320; Page v. Freeman, 19 Mo. 421;
Boardman v. Acer, 13 Mich. 77. Compare Brady v. W^hitney, 24 Mich. 154;
Kenyon v. Woodruff, 33 Mich. 310. If judgment is taken against one alone,
tender of payment upon that is no bar, unless the plaintiff elects to receive
it Blann v. Crocheron, 20 Ala. 320; in federal courts, see Albright t. Mc-
Tighe, 49 Fed. 817; Birdsell v. Shaliol, 112 U. S. 485, 5 Sup. Ct 244; Jen-
nings V. Dolan, 29 Fed. 861; Power v. Baker, 27- Fed. 396; Child v. Boston &
F. H. Iron Works, 19 Fed. 258; Collard v. Delaware, L. & W. R. Co., 6 Fed.
246; Barnes v. Viall, 6 Fed. 661-671.
210 Snapp V. Roche, 94 N. Y. 329. And seo Tliompson r. Kalbert, 109 N.
Y. 329, 16 N. B. 675.
Ch. 4] DISCHARGE OF JOINT TORTS. 343
English and American cases in answer to this question: ''Did
the plaintiff, by suing the sheriff alone, recovering judgment for
about {6,000, and receiving from him {830 on said judgment, there-
by preclude himself from maintaining a suit against the defendants
for the same trespass? Is the judgment, or the judgment and
part payment, in that case, a bar to this action?" The conclusion
was reached that nothing short of full satisfaction, or that which
the law must consider as such, can make such judgment a bar. A
partial satisfaction by one of the wrongdoers for damages occasion-
ed by the joint wrongful act of both is, however, properly received
in evidence to mitigate damages. While the plaintiff can have
only one satisfaction, the satisfaction of the judgment must be the
one which he has elected to take. In Knickerbacker v. Colver*"
it was distinctly held that, where there were two separate suits for
the same trespass, the plaintiff, may elect de melioribus damnis,
but can have only one satisfaction. The plaintiff may make his
election (e. g. to take the larger judgment or to pursue the solvent
party); but, when he has made his election, he is concluded.*^*
Satisfaction of one judgment, however, will not preclude him from
collecting his costs on other judgments; and he may take out
execution for such costs.*-' The bringing of an action and the
recovery of judgment against one of a number of wrongdoers, who
are jointly and severally liable, is not an election of remedies as to
the others, and does not sever their joint and several liability; but
the wrongdoer who had been sued has a personal right to object
to making him a party to the joint action.
Judgment does not Divest Property.
Tnder both English and American law, a judgment against one
.of several joint tort feasors, withcyit satisfaction, does not vest
2118 Cow. 111.
212 Power V. Baker, 27 Fed. 896.
213 Windham v. Wither, 1 Strange, 515; Livingston v. Bishop, 1 Johns. (N.
y.) 290-293; Knickerbacker v. CJolver, 8 Cow. Ill; First Nat. Bank v. In-
dianapoUs Piano Manuf'g Co., 45 Ind. 5; Ayer v. Ashmead, 31 Conn. 447.
See Lord v. Tiffany, 98 N. Y. 412. In a joint action for libel, several Judg-
ments were rendered. The smalls Judgment was paid. Upon payment of
costs, the other defendant was entitled to have the Judgment against him
satisfied. BresUn v. Peck, 38 Hun, 623.
344 DISCHARGE AND LIMITATION OF LIABILITY FOB TORTS. [Ch- 4
the property in the chattel in dispute, or bar a subsequent action
against the other for continuing to detain it.^^* **It would be an
absurdity/' says Mr. Justice Willes, **' "that the mere obtaining
judgment, especially for nominal damages, could vest property, of
which the plaintiff had been deprived, in defendant" On the
same principle, judgment for a payment of nominal damages, by a
patentee, without joining his licensee, against one who has made
and sold a machine in violation of the patent, is no bar to a bill in
equity, by the patentee and licensee together, for the benefit of the
licensee, against another person for afterwards using the same
machine.*^*
SAME— RELEASE.
117. A release of one joint tort feasor does not release the
others. But the injured person is entitled to only
one satisfaction. If he receives that troxa one tort
feasor, he cannot sue other joint tort feasors.
Wherever the person injured by the -wrong: of sev-
eral joint tort feasors has settled his claim for dam-
ageSy and received satisfaction, from one of them,
the cause of action is discharged as to all.
While separate suits, as has been seen,**^ may be brought
against several defendants for a joint trespass, and while there
may be recovery against each, there can be but one satisfaction.
It is immaterial whether the satisfaction is obtained after judg-
ment,**' or by amicable adjustment, without any litigation, of the
claim for damages. The essential thing is the satisfaction.*^*
214 Morris v. Robinson, 5 Dowl. ^ R. 34r-48, 3 Bam. & 0. 106-206; Ex parte.
Drake, 5 Ch. Div. 866.
216 Brinsmead v. Harrison, L. R. 6 C. P. 5S4-588.
216 Birdsell v. Shaliol, 112 U. S. 485, 5 Sup. Ct. 244; Consolidated RoUer-
Mill Co. V. Coombs, 39 Fed. 803-806; Kelly v. Ypsilanti Dress-Stay Manuf'g
Co., 44 Fed. 19-21; Campbell Printlng-Press & ManuTg Co. v. Manhattan
Ry. Co., 49 Fed. 930; Hobbie v. Jonnison, 149 U. S. 355-363, 13 Sup. Ct 879.
217 Livingston v. Bishop. 1 Johns. 290.
218 Ante, pp. 341-343, "Discharge by Judgment"; Co. Litt. I 376.
.219 Babcock & Wilcox Co. v. Pioneer Iron Works, 34 Fed, 838; Eastman v.
Grant, 34 Vt 387,
Ch. 4] DISCHARGE OF JOINT TORTS. 345
Therefore, where a passenger, injured in a street-car collision, for a
sum paid released the carrier company from all liability for the
injury, he thereby discharged the liability of the other company
also. The rule was applied notwithstanding evidence that the
other company was really to blame, and although the right of
action against it was expressly reserved.*'** The reasoning of the
English cases is that the cause of action against joint tort feasors
is one and indivisible, and, having been released as to one person
consequently is released as to all persons otherwise liable. The
American cases recognize only satisfaction as a bar to suit against
joint tort feasors. When the cause of action is once satisfied, it ceases
to exist.*'* Where, however, there is a wrong in which several
persons join without concert, the release of one is not the release
of all. They are not, strictly speaking, joint tort feasors.***
Therefore, a release of one of two coal-mine owners, both of whom
had thrown refuse into a stream, is not a release of the other.**'
A covenant not to sue may not amount to a release.*** Thus,
while a release of one of several joint and several debtors is a dis-
charge of all,**' a covenant not to sue is not so, in geneml.^*^ Th(*
«2o Seither v. Philadelphia Traction Co., 125 Pa. St 397, 17 Atl. 338. A
similar case is Tompkins v. Railroad Co., 66 Cal. 165, 4 Pac. 1105. Et vide
SpmT V. Railroad Co., 56 N. J. Law, 346, 28 Atl. 582; Cooke v. Jennor, 5 Hob.
66; Brinsmead v. Harrison, L. R. 7 C. P. 547; Kentucky & I. Bridjje Co. v.
Hall, 125 Ind. 220, 25 N. E. 219; City of Chicago v. Babcock, 143 lU. 358, 32
N. B. 271; Horsley v. Moss, 5 Tex. Civ. App. 341, 23 S. W. 1115.
221 Spurr V. Railroad Co., 56 N. J. Law, 346, 28 Atl. 582. Cf. Derosa v.
Hamilton, 14 Pa. Co. Ct. R. 307.
222 Ante, p. 212, "Joint Tort Feasors."
228 Little Schuylkill, N. R. & C. Co. v. Richards' Adm'r, 57 Pa. St. 142; Gal-
lagher V. Kemmerer, 144 Pa. St. 509, 22 Atl. 970.
224 2 W. Saund. 47-99, note; Ford v. Beech. 11 Q. B. 852. The dismissal
of an action against one of two joint tort feasors, together with the execution,
for a valuable consideration, of an agreement not to sue him, does not operate
as a release of the other tort feasor. City of Chicago v. Babcock, 143 111.
358, 32 N. E. 271.
225 Co. Litt. 232; Cocks v. Nash, 9 Bing. 341; Nicholson y. Revill, 4 Adol.
Sc E. 675; Brooks v. Stuart, 9 Adol. & E. 854.
220 Dean v. Newhall, 8 Term R. 168; Twopenny v. Young, 3 Barn. & C^
208; Hutton v. Eyre, 6 Taunt 289; Duck v. Mayeu [1892] 2 Q. B. 511; Sharpe
V. Williams, 41 Kan. 56, 20 Pac. 497; City of Chicago v. Babcock, supra.
But see Comstock y. Hopkins, 61 Hun, 189, 15 N. Y. Supp. 908. And see
346 DISCHARGE AND LIMITATION OF LIABILITY FOB TORTS. [Ch. 4
same distinction is applied to joint tort feaHors. A covenant not
to sue one of two joint tort feasors does not operate as a release of
the other from liability.*"
SAME— WAIVER.
118. In England, waivei* of the tort as to one of several
joint tort feasors, and suit against him in assump-
sit, releases the other tort feasors. In America, the
rule is otherwise.
In Buckland v. Johnson*^* the plaintiff recovered judgment in
trover against one of two joint tort feasors for conversion of prop-
erty. Not being able to realize on his judgment, he sued the other
tort feasor for money had and received. It was held that the
former judgment was a bar to the latter proceeding. This is con-
sistent with the English rule as to the effect of a judgment against
one of several tort feasors upon a subsequent action against the
others. The rule on this point being otherwise in America, it was
properly said in Huffman v. Hughlett^^" (where an original action
Whlltemore v. OU Co., 124 N. Y. 565, 27 N. E. 244. As to the rule of con-
struction, determining whetlier a document be a release, or a covenant not to
sue, see Price v. Barker, 4 El. & Bl. 760-777; Bateson v. Gosling. L. R. 7
C. P. 9.
227 Duck v. Mayeu [1892] 2 Q. B. 511. Dismissal of an action against
one or more Joint tort feasors, together with the execution, for a valuable
consideration, of an agreement not to sue him, does not operate as a release
of the other tort feasor. City of Chicago v. Babcock, 143 111. 358, 32 N. E.
271.
228 Buckland v. Johnson, 15 C. B. 145. Mr. Keener (Quasi Contracts, 209)
points out a further inconsistency of the law in this case with American doc-
trines, in that it was here taken for granted that by the Judgment the title
was invested in the defendant in the first acti(Mi as of the time of the con-
version. The rule is otherwise in America. Dow v. King, 52 Ark. 282, 12
S. W. 577; Atwater v. Tupper, 45 Conn. 144; United Soc. v. Underwood, 11
Bush (Ky.) 265.
229 Huffman v. Hughlett, 11 Lea (Tenn.) 549. Cf. Floyd v. Brown, 1 Rawle
(Pa.) 121. Terry v. Hunger, 121 N. Y. 161, 24 N. E. 272, Mr. Keener points
out, was decided by an- unjustifiable use of the fiction in assumpsit. It has,
however, been cited with approval. Crossman v. Rubber Co., 127 N. Y. 3-1-
37, 27 N. E. 400; Roberge v. Wlnne, 144 N. Y. 709-712, 39 N. E. 631. In
Cll. 4] DISCHARGE OF JOINT TORTS. 347
had been brought in assumpsit against one tort feasor, and discon-
tinued, and subsequently an action in conversion was brought
against another tort feasor): "If the action be in contract, it is
not strictly a waiver of the tort, for the tort is the very foundation
of the action; but, as Nicholson, C. J., has more accurately ex-
pressed it, a waiver of the 'damages for the conversion,' and a suing
for the value of the property.^'® It is simply an election between
remedies for an act done, leaving the rights of the injured party
against the wrongdoer unimpaired, until he has obtained legal
satisfaction. . If it were otherwise, the suing of any one of a series
of tort feasors, even the last, on an implied promise, where there
was clearly no contract, would give him a good title and release
all the others. No authority has been produced sustaining such
a conclusion, and we are not inclined to make one."
•
both these cases it is regarded as having decided that the plaintiif in Terry
v. Munger had elected to resort to another and inconsistent remedy, and was
therefore bound to that election. It was distinguished in Russell v. McCall,
141 N. Y. 437, 36 N. E. 498, as being a case where the owner of property had
elected to treat its conversion as a sale, commenced his action, and was ac-
cordingly bound. It was insisted that there was an inconsistency between
such election and a subsequent suit In this case It was distinctly held that
where a surviving partner misappropriated the assets of the firm, the legal
title to which came to him, not as the full and absolute owner, but charged
with trusts, and an eiiuitable action has been brought against him by the
personal representatives of the estate of the deceased partner, and a Judgment
obtained therein for an accounting and payment of the amount found due the
estate, this, unless the amount so found due is paid, is not a bar to an action
against the others, who, by Intermeddling with the assets and sharing in the
misappropriation, have rendered themselves liable therefor, as trustees de son
tort. Until satisfaction of the Judgment, it gives the surviving partner no
greater rights over the assets than he had before its rendition,
sso Kirkman v. PhUlips* 7 Heisk. 222-224.
848 BKMEDIES. [Ch. 5
CHAPTEB V.
REMEDIES.
119. In General.
120. Statutory Remedies.
121. Common-Law Remedies.
122. Extrajudicial Remedies.
123. Judicial Remedies.
124-140. Damages.
IN aENERAL.
119. Bemedies for torts may be either-^
(a) Statutory; or
(b) Common-law.
STATUTORY REMEDIES.
120. Whenever a statute creates a right, a duty, or an oV
ligation, then, although it has not in express terms
given a remedy, the remedy which by law is prop-
erly applicable to the right or obligation follows
as an incident.^
Mr. Cooley * has stated, as between comman-law and statutory
remedies, three principles:
(1) Where a remedy exists at the common law, and a new rem-
edy is given by statute, and there are no negative words in the
statute indicating that the new remedy is to be exclusive, the pre-
sumption is that it was meant to be cumulative; and the party in-
jured may pursue, at his option, either the common-law remedy or
the remedy given by the statute.' For example, the common law
gives to one whose property is seized on an attachment sued out
1 Maule, B., in Braithwaite v. Skinner, 5 Mees. & W. 313.
2 Cooley, Torts, pp. 781-783.
8 Cooley, Torts, p. 781, and cases cited In note. This is an application of
the general principle that, "if there are concurring effectual remedies, the
choice and uninterrupted prosecution of the one excludes the other." Hack-
€h. 5] STATUTORY REMEDIES. 341)
maliciously, and without probable cause, an action on the case
for the injury; and it has often been held that a statute requiring
the attachment creditor to give bond to pay all damages suffered
by the suing out of his writ provided for a cumulative remedy
only, and the remedy at the common law might still be resorted
to.*
(2) But the common-law remedy may be excluded by implication
as well as by express negative words; and where that which con-
stitutes the actionable wrong is permitted on public grounds, but
-on condition that compensation be made, and the statute provides
iin adequate remedy whereby the party injured may obtain redress,
the inference that this was intended to be the sole remedy must
generally be conclusive.' It has been so held in many cases where
land or other property has been taken for public use under eminent
domain.^
(3) Where the statute imposes a new duty, where none existed
before, and gives a specific remedy for its violation, the presump-
tion is that this remedy was meant to be exclusive, and the party
<;omplaining of a breach is confined to it^ It is upon this ground
that it has been many times held that, when the right to exact tolls
has been conferred upon a corporation, and a summary remedy given
for their collection, the corporation must find in this summary
remedy its sole redress when an attempt is made to evade payment.'
ney, 0. J., in American Furniture Co. v. Town of Batesvllle (Ind. Sup.) 38 N.
E. 408, and cases cited. Statutes do not, as a rule, take away previous
remedies at common law, unless such an intention Is declared, but they are
held to be cumulative remedies. Hart v. Mayor, etc., of Albany, 9 Wend.
571; Ren wick v. Morris, 7 HiU, 575; People v. Vanderbilt, 26 N. Y. 287;
American Furniture Co. v. Town of Batesville (Ind. Sup.) 38 N. E. 408.
* Lawrence v. Hagerman, 56 111. 68; Spaids v. Barrett, 57 lU. 289; Don-
uell V. Jones, 13 Ala. 490; Petit v. Mercef, 8 B. Mdn. 51.
5 Fuller V. Edings, 11 Rich. Law, 239; Calking v. Baldwin, 4 Wend. 667;
NuU V. White Water VaUey Canal Co., 4 Ind. 431.
« Renwick v. Morris, 7 Hill, 575; Babb v. Mackey, 10 Wis. 371; Smith v.
McAdam, 3 Mich. 506.
^ Almy v. Harris, 5 Johns. (N. Y.) 175; Edwards v. Davis, 16 Johns. (N.
Y.) 281; Smith v. Lock wood, 13 Barb. 209; Thurston v. Prentiss, 1 Mich.
193; Smith v. Drew, 5 Mass. 514.
8 Chestnut Hill Turnpike Co. v. Martin, 12 Pa. St. 361; Kidder v. Boom Co.,
24 Pa. St. 193.
350 RKMEDIES. £Ch. 5
COMMON- LAW REMEDIES.
121. Common-law remedies may be divided into—
(a) Extrajudicial remedies; and
(b) Judicial remedies.
SAME— EXTBAJUDICIAL REMEDIES.
122. Extrajudicial remedies for tort arise in cases where
the law justifies self-help.
While it has always been insisted that it is contrary to best pub-
lic policy to allow parties to take the law into their own hands,
in certain well-marked cases- the right of self-help has been recog-
nized. Thus, there are circumstances under which one may, with-
out doing wrong, abate a nuisance,® peaceably recapture his own
goods,^** re-enter on his own land,^^ or exercise the right of defense
of person or property,^* or of distraint." However, as civilization
advances, necessity for and recourse to such remedies becomes less
and less frequent.
» Post, p. 799, "Nuisance."
10 Post, p. G9C.
11 Post, p. (390, "Trespass."
12 Ante, p. 439, "Private Defense." But while an animal caught flagrante
delicto may be liilled by tlie owner of the tlireatened property ^ante, p. 152),
a dog cliasing animals ferae naturee cannot he shot without liability. Vere
V. Lord Cawdor, 11 East, 568.
13 Distress is a remedy given by common law, whereby a party. In certain
cases, is entitled to enforce a right or obtain redress for a wrong in a sxim-
mary manner, by seizure of chattels and detaining them as a pledge until sat-
isfaction is obtained. Clerk & L. Tprts, c. 12 (discussing "Distress" at length).
So, if a man find a chattel of another unlawfully on his land, and doing dam-
age, he may seize and detain it, impounded, in order to compel the owner
of the offending chattel to make compensation for the damage done. Id.
237. Generally, as to distress damage feasant, see Bunch v. Keunington, 1
Q. B. 079 (hunting dog); Hannam v. Mockett, 2 Barn. & C. 934 (domestic
pigeons); Simpson v. Hartopp, Wllles, 515.
Ch. 5J COMMON-LAW REMEDIES. 351
SAME— JUDICIAL BEMEDIES.
123. The law applies any remedy known to it, "whenever
such remedy is suitable. Judicial remedies for
torts may be —
(a) Extraordinary.^
(b) Ordinary.
Extraordinary Remedies*
In many eases tortious conduct may be repfarded also as crim-
inal, and may bfe the basis of an indictment." Mandamus will lie
to compel the performance of public official duty, although an ac-
tion for damages would be sustained upon the same state of facts. *^
It is also becoming an impoi'tant proceeding in settlements of
strikes." And it may issue to compel the assessment of damages,
as in case of damages caused by blasting in the construction of a
railroad.^*
One who suffers from the actionable wrong of another with re-
spect to movable property, instead of asking for pecuniary compen-
sation, may seek to recover possession of property of which he has
been wrongfully deprived; that is to say, he can have recourse to
replevin,*® or, as it is commonly called in Code states, to the "ac-
iBThis classlileation is adopted for the sake of convenience, notwitlistnnd-
ing its variance from the conventional classification of extraordinary reme^
dies. Attachment, replevin, detinue, and the like are not ordinary remedies
for torts.
i« Ante, c. 1. As seduction, assault and battery, certain kinds of libel, of
nuisance, et sim.
IT Re-election certificate: People v. State Board of Canvassers, 129 N. Y.
360, 29 N. E. 345. See People v. Board of Assessors of Brooklyn, 137 N. Y. 201,
33 N. E. 145; Rosenthal v. Circuit Judge, 98 Mich. 208, 57 N. W. 112 (to that
effect). But the process of courts of justice can never be used for inquisi-
torial purposes or for oppression, and such use be sustained. Mlillsterial offi-
cers: Attorney General v. Lum, 2 Wis. 371; Fulton v. Hanna, 40 Cal. 27S.
Executive officers: State v. Chase, 5 Ohio St. 528; Gray v. State, 72 Ind.
567. Cf. Miles v. Bradford, 22 Md. 170; Tennessee & 0. R. Co. v. Moore, 36
Ala. 371. Legislative officers: Ex parte Pickett, 24 Ala. 91. Cf. Ex parte
Bchols, 39 Ala. 698. Taxing officers: Queen v. Commissioners of the Land
Tax for Barnwell, 11 Mod. 206; Hyatt v. Allen, 54 Cal. 353.
i«l Am. r^w Reg. & Rev. (N. S.) 102.
19 Dodge V. County Corners, 3 Mete. (Mass.) 380.
20 As to common-law replevin^ see Gotobed v. Wool, 6 Maule & S. 128;
/352 RKMEDIKS. [Ch. 5
tion for claim and deli very.'' ** Indeed, the judgment for the plain-
tiff in such a case is commonly in the alternative, for the return of
the goods or damages.^' This is also true where the anomalous
action of detinue survives.^' Again, attachment may be brought in
connection with a state of facts which may be the basis of an ordi-
nary action ex delicto.**
Shannon v. Shannon, 1 Schoales & L. 324; OaUoway v. Bird, 4 Bing. 299;
Mcnnie v. Blake, 6 Esp. 842. Replevin seems to have been devised by Glanvil,
O. J., in the time of Henry II. 3 Bl. Ck>mm. 145.
ai In England, replevin is now largely a statutory remedy. 51 & 52 Vict-
<L. R. St) c. 43, §§ 133-137; Young v. Waterworks Co., 1 Best & S. 675. As to
replevin In America, with respect to when the action lies, see Flanagan v. New-
man (Colo. App.) 38 Pac. 431; Shackelford v. Hargreaves, 42 Neb. 680, GO
N. W. 951. Who may maintain, Recder Bros. Shoe Co. v. Prylinski (Mich.)
<>0 N. W. 960; necessity of demand, Simmons v. Jenkins, 76 111. 479 (followed
in Keller v. Robinson [111. App.] 38 N. E. 1072); pleading. Town of Andrews
V. Sellers (Ind. App.) 38 N. E. 1101; pleading and proof. Randall v. Persons,
42 Nob. G07. 60 N. W. 898; evidence, Eaton v. Sims. 59 Ark. 611, 28 S. W.
429; Hutchinson v. Hutchinson (Mich.) 61 N. W. 60; Griswold v. Simdback
(S. D.) 60 N. W. 1068; judgment, Chase Co. Nat. Bank v. Thompson. 54 Kan.
507, 38 Pac. 274; Jameson v. Kent, 42 Neb. 412, 60 N. W. 879; Olln v. Lock-
wood (Mich.) 60 N. W. 972; damages, Hutchinson v. Hutchinson (Mich.) 61
N. W. 60; Chase Co. Nat. Bank v. Thompson, 54 Kan. 307, 38 Pac. 274;
Jameson v. Kent, 42 Neb. 412, 60 N. W. 879
22 Roberson v. Relter, 38 Neb. 198, 56 N. W. 877; Goodwin v. Potter, 40
Neb. 553, 58 N. W. 1128; French v. Ginsburg (Minn.) 59 N. W. 189. As to
measure of damages in replevin, see Gardner v. Brown (Nev.) 37 Pac. 240;
Jenkins v. Mitchell, 40 Neb. 664, 59 N. W. 90; Burnett v. Bealmear (Md.) 28
Atl. 898; Gray v. Robinson (Ariz.) 33 Pac. 712; Brunell v. Cook. 13 Mont.
497, 34 Pac. 1015. And see, also (**the value of the time consumed by plain-
tiff in an action of claim and delivery in recovering the property in dispute,
and his railroad and hotel espenses and attorney's fees, are speculative dam-
Ages, which cannot be recovered In such action"), Loeb v. Mann. 39 S. C.
465, 18 S. E. 1.
28 McCullough V. Floyd (Ala.) 15 South. 848. The writ of trespass, at com-
mon law, was based upon a wrongful taking of the goods, and therefore
•could not be maintained where the defendant had come into possession law-
fully, notwithstanding his refusal to redeliver them. Detinue supplied this
-defect, to some extent. 3 Bl. Comm. 152; 2 Reeves, Eng. Law, 564; Blgelow,
Ivead. Cas. 420. As to damage in detinue, see Eastman v. Commissioners,
10 S. E. 599. As to abolition of detinue, and substitution of replevin, see
1 Burrill, Prac. 124.
2«E. g. in action for negligence. But negligence must be sufficiently al-
Cb. 51 OUMIIOX-LAW AEMEDIK?. 351
An injonction will always be granted to restrain tbe comuii$«ion
or continuance of actionable wrongs whenever the circomatani'es
jnstifr it. Thns, altboagfa there is much discussion,'' and the
weight of authority is against it on the point,** courts have some*
tunes issued injunction to restrain the publication of a libel.'^ So
trespass,^' waste,** and nuisance '^ may be restrained.
leged. McCrai t. Muskegon Circuit Judge, 100 Mich. 375, r^S N. W. 1118.
And see (Injuir to persona! property generally; by statute) Newbem Itaa-
VLgbt Go. T. Lewis Mercw Coiwt Co., 113 N. C. 549. IS S. E. 683. Fraud, West
Side Bank t. Meelian (Sup.) 20 N. Y. Supp. 766; May ▼. Newman, 05 Mich. 50t,
55 N. W. 364; HaU t. KIntz, 13 Pa. Co. Ct R. 24; conyersion. Condoures v.
Imperial Turkish Tobacco ft Cigarette Co. (Com. Pl.> 22 N. Y. Supp. 61K»;
issuance of capias when action Is In tort, Sawyer y. Nelson, 44 111. Ai>p. 1H4;
arrest in ciyil actl<Hi for seduction. Hood y. Suddertb. Ill N. C. 215, 16 S. K.
387; for fraud, Dayls y. Cardue, 38 S. C. 471. 17 S. E. 247. And see White
y. CampbeU (R. I.) 26 Atl. 40; Newbem Gaslight Co. y. Lewis Mercer Const.
Co., 113 N. C. 519, 18 8. B. 603 (for torts generally); McCrea y. Munkcgon
CirciUt Judge. 100 Mich. 375, 58 N. W. 1118; May y. Newman, 86 Mich. 501.
55 N. W. 304 (fraud).
ss Schuyler y. Curtis, 64 Hun. 594, 19 N. Y. Supp. 204; Boston Piatite Co.
y. Florence ManuTg Co., 114 Mass. 68; Brandreth y. liance. 8 Paige, 23. As
to Dixon y. Holden, L. R. 7 Eq. 488, see Prudential Aasur. Co. y. Knott, 10
Ch. App. 142; Kldd y. Horry, 28 Fed. 773. But see Mayer y. Journeymen
Stone Cutters* Ass'n (N. J. Ch.) 20 Atl. 482.
29 Townsh. Sland & L. (4th Ed.) I 417 et seq., notes, with cases cited; High,
InJ. (3d Ed.) { 1015; Kerr, Inj. | 502; Singer Manuf'g Co. y. Domestic Sewing
Mach. Co., 49 Ga. 70.
2T Sherry y. Perkins, 147 Mass. 212, 17 N. B 307 (and see cases collect e<l
and considered in 31 Am. Law Reg. 782); Bonnard y. Perryman [\Hm] 2 Ch.
269; Collard y. MarshaU [1802] 1 Ch. 571, discussing Bonnard v. Perr>'man.
Injunction against the use of piano in saloon disturbing plaintiff's sleep in
adjoining bnUding, Feeney y. Bartoldo (N. J. Ch.) 30 Atl. 1101. Bell v. Singer
ManuTg Co., 65 Ga. 452; Croft y. Richardson, 59 How. Prac. 350.
2« Post, p. 704, "Trespass and Waste"; Miller y. Lynch. 149 Pa. St 4<M), 24
AtL 80 (as to trial of title at law); Wadsworth y. Ooree, 06 Ala. 227, l(>
South. 848 ad.); Bierer y. Hurst, 162 Pa. St 1, 29 Atl. 98; Hanly y. Wattorsou,
39 W. Va. 214, 19 S. E. 536; Southern Pac. R. Co. y. City of Oakland, 5H Fc^d.
*• Pulteney y. Shelton, 5 Ves. 260, note, Brock y. Dole, 06 Wis. 142, 2H N.
W. 334; Mutual Ufe Ins. Co. y. Blgler, 70 N. Y. 568; Watson y. Hunter, 6
Johns. Ch. 169; Layenson y. Standard Soap Co.. 80 Cal. 245, 22 Pae. 184.
30 Post p. 803, "Nuisance.*
LAW OF TORTS— 28
f»
364 KKMKD1£S. [Ch. 5
Injunction and mandamus are not appropriate remedies in the
same case.** A cause of action for damages in tort, as for a tres-
pass, may be joined with an injunction to restrain a threatened repe-
tition of the wrong.'*
50; Sisson, Crocker & Co. v. Johnson (Cal.) 3* Fac. G17. A land-grant railroad
company has such an interest In the unsurveyed lands as will entitle It to
maintain alone (the government having refused to join with it) a suit to en-
join trespassers who are cutting timber thereon. Northern Pac. R. Co. v.
Hussey, 9 C. C. A. 4G3, 61 Fed. 231. To prevent or remove obstruction to
right of way: Starkie v. Richmond, 155 Mass. IbS, 29 N. E. 770; Chicago,
B. & Q. R. Co. V. Chicago. Ft. M. & D. Ry. Co. (Iowa) 58 N. W. 918. Against
agents of interior department about to imlawfully eject an occupant: Cald-
well V. Robinson, 59 Fed. 053. Against obstructing drains: Inhabitants v.
Cutter, 159 Mass. 461, 34 N. E. 695. Overflowing lands: Collins v. City of
Keokuk (Iowa) 59 N. W. 200. And if the court have jurisdiction of the per-
son it may restrain a trespass on lands in another jurisdiction. Jennings
Bros. & Co. v. Beale, 158 Pa. St 283, 27 AU. 948. Against casting doud on
title: Qulnby v. Slipper, 7 Wash. 475, 35 Pac. 116. And, generally, see First
Baptist Church v. Syms, 51 N. J. Eq. 3<J3, 28 Atl. 461; Jackson v. Ban-y Ry..
2 Reports, 207 [1893] 1 Ch. 238; Ades v. Levi, 137 Ind. 506, 37 N. B. 388;
Savannali & O. Canal Co. v. Suburban & W. E. Ry. Co., 93 Ga. 240, 18 S. E.
824; Union Water Co. v. Kean (N. J. Ch.) 27 Atl. 1015; Jkloore v. Lima Nat
Bank, 8 Ohio Clr. Ct. R. 287. See, also. Flood v. Van Wormer, 70 Hun, 415,
24 N. Y. Supp. 460; BoUman v. Wamer, 38 S. C. 464. 17 S. E. 223; Wilson v.
Dondurant, 142 111. 645, 32 N. E. 498; Wagoner v. Wagoner, 77 Md. 189, 26
Atl. 284; Rutland Electric Light Co. v. Marble City Electric Light Co., 65 Vt
377, 26 Atl. 635; Troe v. I^rson, 84 Iowa, 649, 54 N. W. 179; Ramsdell v.
Tama Water Power Co., 84 Iowa, 4^, 51 N. W. 245; United States Trust Co.
of New York v. O'Brien (City Ct. N. Y.) 18 N. Y. Supp. 798; Carson v. Elec-
tric Light & Power Co., 85 Iowa, 44, 51 N. W. 1144; Spraguc v. Locke, 1 Colo.
App. 171, 28 Pac. 142.
31 Whigham v. Davis, 92 Ga. 574, 18 S. E. 54a
3 2 Jacob v. Ijorenz, 98 Cal. 332, 33 Pac. 119. And see Watteraon v. Sal-
dumbehere, 101 Cal. 107, 35 Pac. 432 (as to water rights); Bowman v. Chicago,
St P. & K. C. Ry. Co., 86 Iowa, 490, 53 N. W. 327 (laying track on street);
Lamming v. Galusha, 135 N. Y. 239, 31 N. E. 1024 (Id.). As to damages Inci-
dent to injunction, see Melrose v. Cutter, 159 Mass. 461, 34 N. E. 659; Watter-
son V. Saldumbehere, 101 Cal. 107, 35 Pac. 432; Jacob v. Lorenz, 98 Cal. 332,
'CJ Pac. 119. But, in an action to recover damages for a conspiracy, one of
its fruits will not be canceled. Haskell County Bank v. Bank of Santa F^, 51
Kan. 39, 32 Pac. 624. As to award of damages on dissolution of injunction,
see Armstrong v. Fresz (Miss.) 16 South. 532. Cf. Harter v. Wescott (City
Ct Brook.) 32 N. Y. Supp. 111.
Ch. 5] COMMON-LAW REMEDIES. 355
But courts will interfere by injunction only when sufficient appeal
is made to the discretion of the chancellor. Equity will not lightly
put in force preventive remedies. It will, unless clear reason for
interference is shown^ leave the parties to their legal, as distinguish-
ed from their equitable, remedies. It inclines to presume innocence
and to allow wrong to go unpunished when it is not proved to have
beeu committed.'* Especially will equitable interference be denied
where any wrong on the plaintiff's part is involved. Thus, an in-
junction should not be granted to protect the use of words as the
trade-mark of a medical preparation which assert a manifest false-
hood or physiological impossibility.**
Whoever seeks an injunction must show a riglit in himself,' ** a
wrong or imminent danger of wrong on the part of defendant,' • and
some special reason for equitable interference."
«» Cooley, Torts, ♦p. 22.
»*Kohler ManuTg Co. v. Beeshore, 8 C. C. A. 215, 59 Fed. 572. Query,
whether equity wiU intervene by inj unction to protect the use of words claim-
ed as a trade-mark, between owners of quadc medicines. Id. He who seeks
equity must do equity. You must come into equity with clean hands, etc.
w Jackson v. Barry Ry., 2 Reports, 207 [1893] 1 Ch. 238; Collins v. City
of Keokuk (Iowa) 59 N. W. 200.
«• Where defendant has been guilty of repeated trespasses on plaintiff's
land, in spite of warnings from the latter, and has protracted a hopeless
litigation for the land, and has interfered with plaintiflTs attempts to culti-
vate the land, an injunction will Issue to restrain further trespasses; it ap-
pearing that defendant is insolvent, that he is threatening to remove plain-
titTs crop, and that, unless he is restrained, plaintiff will suffer irreparable
damage. Lee v. Watson (Mont.) 38 Pac. 1077. A preliminary injunction is
properly refused when there exists no reasonable ground for apprehending
that the injury against which the injunction la sought will be attompteil.
National Docks & N. J. J. C. Ry. Co. v. Pennsylvania U. Co. (N. J. Err. &
App.) 30 Atl. 580. And see Edison Electric Tjght Co. v. Buckeye Electric
Co., 64 Fed. 225; Union Terminal R. Co. v. Board of Railroad Com*rs, 54 Kan.
352, 38 Pac. 290. On the other hand an injunction may be granted to retrain
a navigation company from towing barges through the draw of a railroad
bridge in such a negligent manner as to endanger the bridge, though there
has been no trial at law to s6ttle the rights of the parties. 45 Fed. 5, reversed.
Texas & P. Ry. Co. v. Interstate Transp. Co., 15 Sup. Ct. 228.
37 "It has been often adjudged that whenever, respecting any right violated,
a court of law is competent to render a Judgment afTording a plain, adequate,
and complete remedy, the party aggrieved must seek his remedy in such court.
L'ft U^iJCGK. [C^- ^
Tut riix: f^ til*- i»« n.* J iLfrs^pei ¥?- ike •efeBoats vtobs may
-Jit r;j:i: .^ ;.- - ii j. T^Bfc. a r.*nr: wHi refaae to CAJoin Ac pobli-
j.^-!- c c i.*»^ z.jin'.* =• ^*i:: w*_- icwr^i tke ts^mom of a moBn-
.*
r.-a: :. a ji-.i-* LA.rL'r.^ :-i* Mr*. Sciayier, the phitaathropigt;
iZ j«j** »if ift-r *«r^*.Tj|£ 'ulTt." '"TWre is a great fiilerenee be-
rurra JL ;a:. ■. -tur a jt-ti.:*- ;■ "^mm^^ So. «q^n^ ^*» ^* ^*^'
^•f-Ltrc •- i^i Tvf -j«*t.2 •i Zip rsacTi J. j«S\ .-*::-« of a portiait. Inter-
' ^ ^ vJl iT.T^i:* ic- c»«r:T. f ;e fxay;«ifc. by MJaJpaiiliitg adTcitiae
.*• .c w^.'Zjfl L^ c r.T-Lir«»c^ of trade aecreta," will be
».-c .cJt *ie*u2«»» *:::•? 6-^-«i»:a-i: u-** x ■• tir«cr:Tt>.eai r^skt to m trial by juTF- ^J***
:».**!* J. jk .r.=r: Nf f^LiT • • • XL *. -> €» wi^^ sMfc 10 recoTw qwdfic
;o.5*rfrT-. T\-i-. .e ;•-•>« «"« ' •»- ti :r w.'^.^r. -^^ .-t-pw* for its deteatioii, or a
!.• c«y , 3ic:L*f-Li ^:c ir«;i :^ a kzi^mc^ mbs^a. «r as il ■■■&>« tor injniy to
;-rt^:c tfT ;e -r^^rr jj:^ >.£il a.o aa. aA£ c^x fee krMC^ m ibe f«denl ooorts
*<JT Tc 'jL^-z -!.» 5; in-.' Fyz'jL J. 11 &*.c: ▼. ^^''Hy. 140 T. S^ 10&>1B)1 VL Sm».
»» CitcLas T, E. W. Wj^rr C^^ :t rt>L -tn. ♦* r*a. aaa. Aad see pertcw of
v*5*» i2. 2 Ahl 1-sw K-i iE Ktt. 1.^
» S..>:::T:r«- t C;r:2* <-=iv 15 N. T. Scr^ TS7.
«• r-r Ma-*jev. J. — M o«^ c ▼. lia^»e T— ■■!. 10 Timm U, B. 227.
T Hirr. Law R^v TC-
«» lUrks T. JX.-4. « M.s«f. Rrpi. JL*A 36 X. T. Scif^pL ^1^
*« liarrmj t. Gasx Litb-.^r^; Ix- Jc E-fTaris^ Ool «Coiii. Pt X. Y.) 28 N. Y.
SappL 271.
♦» EVfec^nt advertised a rvinn: *^f :be 1M7 e»':'->:o of Webster's Diction-
ary, the cv»pTri.:t: harin^ cx;:irv\i. as ^'latest «^:k»is- 10.0U0 new words." etc,
oM price ^s and t^i the new k>v price of $1 was ma^de powaMe bj improTe-
ic^nrs in maohictrr. etc. It was b»?:d. 00 applicatkn of the owb^ of tiie
oopyrUibt of $ul*<^r>^* e*ii:K>s& tbat d^endant be eiuoined agaiiMt tbe for-
tlM^ clrculaiion of siKb mi>U?^cin^ adTerci^^nieniSw acd tbat. l?*»tiiTaw» of tli^
already extensire ciivulAtx^n, a prlixied sUp miist tiirtvafier be attached to
each book, siatin? it to be a reprint of the edition of 1S4T. Mcrriam t. Texas
Siftings Pub. Co.. 49 Fed. ^44. CX, as to rtght of a corporatkm to be pto-
tecti^ in the use of its name. ^Madam Tuss^md.* 24 Am. Law Res- 672.
44 Plaintiff employed defendant in the manufaotore of certaia oils and
greases. Before defendant entered sncfa employment, he a|;reed aot to diralse
or to use any secrets of the business pUdntilf niight mm^^ known to him.
Subsequently, he left plaint ifTs employ, and began the mannCactnre of sim-
Ch. 5] COMMOX-LAW REMEDIES. 367
Plaintiff, hayii^ deliyered a series of lectures, caused part of them
to be reported in a journal. Defendant copied partially, and in-
correctly, thf* published reports, and sold them in book form under
a title importing that the whole series of lectures was there present-
ed in the author's language. It was held that plaintiff, but not his
assignee, was entitled to an injunction, independently of the copy-
right law.^" Bo, to recover in trespass to land one must show pos-
session or right of possession.^* It is accordingly fatal, as a general
rule, to an application for an injunction, that plaintiff was unsuc-
cessful at law on the same cause of action/^
The defendant's wrong in cutting growing timber, constituting
the principal value of property involved, is sufficient ground for in-
terference by injunction.*' And so is the insolvency of the defend-
ant** And, generally, that the injury is irreparable, or that an
award of damages would not be adequate protection against immi-
nent danger, that the bringing of a multiplicity of actions will there-
by be prevented,'* and other similar considerations, are suificient.'^^
liar oUs and greases, using plain tiflTs secrets therein. It was held that a
perBoanent injunction was prop^ly Issued to restrain htm from so doing.
Fralich v. Despar, 165 Pa. St 24, 90 Atl. 521.
«• Pott V. Altemus, 00 Fed. 339.
*• Hanly v. Watterson, 39 W. Va. 214, 19 S. E. 536; Kellar v. Bulllngton
(Ala.) 14 South. 466; Jennings Bros. & Co. v. Beale, 158 Pa. St. 283, 27 Atl.
948. Cf. Sjlvester v. Jerome, 19 Colo. 128, 34 Pac. 760; Cramer v. Kester
(Cal.) 36 Pac. 415; Excelsior Brick Co. v. Village of Haverstraw, 142 N. Y.
146. 36 N. B. 819.
*T Bierer v. Hurst, 162 Pa. St 1, 29 Atl. 98.
4« Butman v. James, 34 Minn. 547, 27 N. W. 66; Miller v. Lynch, 149 Pa.
St 460, 24 Atl. 80. But see Carney v. Hadley, 32 Fla. 344, 14 South. 4.
*» Hanly v. Watterson, 39 W. Va. 214, 19 S. B. 936; Coeur d'Alene C. & M.
C5o. V. Miners' Union, 51 Fed. 260. And see Bolton v. MoShane, 67 Iowa, 207.
25 N. W. 135; Ladd v. Osborne, 79 Iowa, 93. 44 N. W. 235; Price v. Baldauf.
82 Iowa, 669, 46 N. W. 983, and 47 N. W. 1079.
so Before a court of chancery will interfere to prevent a multiplicity of
suits, there must be several persons controverting the same right, and each
Bi As to injunctions against threatening circulars, see Sinsheimer v. United
Garment Workers of America (Sup.) 26 N. Y. Supp. 152, reversed in 77 Hun,
215, 28 N. Y. Supp. 321. But see Shoemaker v. South Bend Spark-Arrester
Co., 135 Ind. 471, 35 N. E. 280. Cf. New York FUter Co. v. Schwarzwalder.
58 Fed. 577.
358 KKMEDIE8. [Ch. 5
But the proud boaat of equity is, "Ubi jus ibi remedium.'' This
maxim forms the root of all equitable decisions.'* "Every just or-
der or rule known to equity courts was bom of some emergency, to
meet some new conditions, and was therefore, in its time, without
precedent. If based on sound principles, and beneficent results
follow their enforcement, affording necessary relief to the one party
without imposing illegal burdens on the other, new remedies and
unprecedented orders are not unwelcome aids to the chancellor to
meet the constant and varying demands for equitable relief." •• Ac-
cordingly, injunction against conspiracies by employes, against boy-
cotts, and against similar wrongs which are also torts, has become
a conspicious feature of our government.'* The time-honored rule
standing upon his own pretension. Carney t. Hadley, 32 Fla. W4, 14
South. 4. Whenever the complainant's title is disputed in cases of tresiiass,
a court of equity will not interfere by injunction on the ground of multi-
plicity of suits, until he has successfully established his title by trial at law.
Carney v. Hadley, supra; Lake Erie & W. R. Co. v. Toung. 135 Ind. 426,
:I5 X. K. 177; Smith v. Bivens, 56 Fed. 352; Chadboume t. Zilsdorf, 34 Minn.
43, 24 N. W. 308 (trespass, way).
«a Ross, J., in U. S. t. Clune, 62 Fed. 798.
»» Toledo, A. A. & N. M. Ry. v. Pennsylyania Co., 54 Fed. 746.
s4 An injunction will issue against interference in restraint of interstate
c!ommerce for the passage of the mails. Thomas y. Railway Co., 62 Fed.
803-xS24; U. S. v. Elliott, Id. 801; Sisson v. Johnson (Cal.) 34 Pac. 617. An
injunction will issue against threatened violence. Cceur d*Alene Consol. &
Min. Co. V. Minors' Union of Wardner, 51 Fed. 260; Longshore Printing &
Pub. Co. V. Howell (Or.) 38 Pac. 547. An injunction will issue to prevent
parties to a contract— for example, actors— violating their contract by acting
elsewhere. Montague v. Flockton. L. R. 16 Eq. 189. And see 24 Am. Law
Rev. 661, as to enticement of. An injunction wlU not be granted, under
normal conditions, to prevent the enticement of. servants. Reynolds v. Ever-
ett, 67 Hun, 294, 22 N. Y. Supp. 306, collecting cases; Id., 144 N. Y. 180,
36 N. E. 72. But no injunction will compel the affirmative performance of a
contract of personal services, as an agreement to sing, act, or play. Powell
DuflPiyn Steam Coal Co. v. Taff Vale Ry. Co., 0 App. Cas. 331. Therefore, an
injunction will not issue to compel employes of a railway company to con-
tinue to work and not to strike. Jenkins, J., in Farmers* Ijo&n & Trust Co.
V. Northern Pac. R. Co., 60 Fed. 803, overruled by Harlan, J., which is Minne-
sota law, in Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310. Cf. Blindell v.
Hagan, 54 Fed. 40, affirmed 6 C. C. A. 86, 56 Fed. 696 (crew of a ship).
Courts have gone so far as to issue an omnibus injunction— that is, against
all persons generally— to refrain from commission of public nuisance. U. S.
Ch. 5] COMMON-LAW RKMEDIES. 359
that the jurisdiction of equity is exercised only to protect rights in
property is not only shaken, °* but almost shattered,
S; I me — Receivers.
On proper conditions,** a court of equity will appoint a receiver
for the prevention of further wrong *^ and the preservation of the
subject of litigation.
V. Debs, 64 Fed, 724; In re Debs, 15 Sup. Ct 900. A timely and valuable article
on the legal restraint of labor strikes, by William P. Aiken, wUl be found in
4 Yale Law J. 13, and an interesting article on the Westei*n Union Telegraph
Company as an accomplice of Debs, in 28 Am. Law Rev. 7(35. A collection of
authorities on what will constitute a conspiracy by employes of railroad
companies, engaged in the transportation of malls and interstate commerce,
wiU be found in Arthur v. Oakes, 59 Am. & Eng. K. Cas. 671, 11 C. O. A. 209,
and 63 Fed. 310.
The act 'to protect trade and commerce against unlawful restraints and
monopolies" (Act Cong. July 2, 1890) confers no right upon a private indi-
vidual to sue in equity for the restraint of the acts forbidden by such stat-
ute, an action at law for damages being the only remedy provided for private
persons, and the right to bring suits in equity being vested in the district
attorneys of the United States. Pidcock v. Harrington, 64 Fed. 821. The
rule as to injunctions against boycotts is thus stated in Barr v. Essex Trades
Council (N. J. Ch.) 30 Atl. 881: "Even when there is a legal remedy, equity
wiU interfere by injunction to prevent (1) an injury which threatens Irrepar-
able damage, and (2) a continuing injury, when the legal remedy therefor
may Involve a multiplicity of suits. The criterion of the application of this
Jurisdiction is the inadequacy of the legal remedy, depending on whether
(1) the Injury done or threatened is of such a nature that, when accom-
plished, the property cannot be restored to its original condition, or cannot
be replaced by means of compensation in money; (2) whether full compen-
sation for the entire wrong can be obtained without resort to a number of
suits."
88 Fetter, Eq. 297-310.
BO Ante, c. 2, p. 205, note "Receivers."
87 Thus a scheme for issuing and selling bonds, the practical effect of
which was to enrich a few at the expense of an Ignorant and confiding i)eo-
ple, may be deception, and fraudulent in its nature,— simply gambling. In
re >'ational Endowment Co., 142 Pa. St. 450, 21 Atl. 879; U. S. v. Mc-
Donald, 59 Fed. 563; Horner v. U. S., 147 U. S. 449, 13 Sup. Ct. 409. Under
such circumstances, the fund In the treasury of the company, being ob-
tained through fraud, and in danger of misapprehension, will be put in the
hands of .a receiver to prevent further fraud, and for its own preservation.
McLaughlin v. Investment Co., 64 Fed. 908.
360 REMEDISB. [Ch. 5
Ordinary Remedie$.
The ordinary, and by far the most usnal, remedy for torts is a civil
action to recover a pecuniary indemnity from the wrongdoer, — that
is, an action for damages.
SAME— DAMAGES.
124. Damagres recoverable in tort may be considered with
reference as to whethar they are —
(a) Designed to compensate ;
(b) Designed to do more or less than to compensate;
(c) In award disproportionate;
(d) In award divisible or indivisible;
(e) In award determined by statute.
126. It is naturally and legally proper that the compensa-
tion should be equivalent to the ixijury.'*
Ordinary damages are a sum awarded as a measure of compen-
sation. They should be precisely commensurate to the injury,
— neither more nor less, — whether the injury is to the person or
to the estate. ■• The subject of damages is too intimately connected
with the cause of action in tort, especially when the right violated
is a right not to be harmed, to be summarily remitted to books on
Damages. But each specific wrong has, to a considerable extent,
a measure of damages peculiar to itself. It will therefore be con-
venient to consider ordinary damages under each specific wrong,
in order. However, one general principle has been emphasized by
Mr. Pollock: ''Compensation, not restitution, is the proper tesf
Thus, where a tenant for years carried away a large quantity of val-
uable soil from his holding, the reversioner could recover, not what
fls Bnssey v. Donaldson, 4 Dall. (U. S.) 1^, 206. And see Dexter v. Spear,
4 Mason (U. S.) 115, Fed. Cas. No. 3,867; 7 Am. & Eng. Bnc. Law, 449; 2 Bl.
Comm. 248.
B9 2 Greenl. Ev. § 250; 1 Suth. Dam. c. 8; 1 Sedg. Dam. c. 2; Baker v.
Drake, 53 N. Y. 211 ; Noble v. Manufacturing Oc. 112 Mass. 492; Brewster
V. Van Llew, 119 111. 554, 8 N. E. 842; South Covington & C. S. Ry. Co. v.
Gest, 34 Fed. 628; Northrup v. McGUl, 27 Mich. 234; Reynolds v. Franklin,
44 Minn. dO» 46 N. VT. 139; Feltz v. Eichele, 62 Mo. 171; Cressey v. Parks,
76 Me. 532.
Ch. 5] DAMAGES. 861
it would cost to replace the soil, but the diminution in the value of
the reversion.** One asking compensatory damages for a wrong-
•0 Pol. Torts, c. 5, citing Whltham v. Kershaw, 16 Q. B. Dlv. 613; Gwalt-
ney v. Land Co., 115 N. C. 679, 20 8. E. 465 (cwnpenaation with reference to
property interest). The difference between the market value of a house and
lot before and after a fire, by which the house Is destroyed. Is the measure
of the damage occasioned by the fire, where there is any evidence that the
house and lot together have a market value. Pacific Exp. Go. v. Smith (Tex.
Bup.) 16 S. W. 098. But In an action by a lot owner for damage done by water
thrown from a public street on his land by a ditch dug by a city, plaintiff
is entitled to recover the cost of flUing up his lot, where the flooding of the
lot is continuous, and the filling is necessary in order to keep out the water.
Weir V. Plymouth Borough, 148 Pa. St 566, 24 Atl. 94. And further as to
damages to land or crops, see Pope v. Benster, 42 Neb. .304, 60 N. W. 561;
Tierre Haute & L. R. Co. v. Walsh (Ind. App.) 88 N. E. 534; Colorado Conaol.
Land Sc Water Co. v. Hartman (Colo. App.) 88 Pac. 62. Cf. City of Nash-
vme V. Sutherland, 94 Tenn. 856, 29 S. W. 228; Chicago & E. R. Co. v. Barnes,
10 Ind. App. 460, 38 N. E. 428. It has been held, however, that in an acticm
to recover damages resulting from negligence in the construction of defend-
ant's railroad in obstructing ditches and destroying fences, the measure of
damages is the cost of removing those obstructions and replacing the fences.
Waters v. Greenleaf-Johnson Lumber Co., 115 N. C. 648, 20 S. E. 718. Where
one sells land by fraudulently misrepresenting the value thereof, the grantee
may recover, as his measure of damages, the difference between the real value
of the land at the date of his purchase and what it would have been worth
at that time if the representations had been true. Spee^ v. Holllngsworth,
54 Kan. 436, 38 Pac. 496. As to measure of damages, see Davenport v. An-
derson (Tex. Civ. App.) 28 S. W. 922. As to damages in personal Injury
cases, see Board Corners of Jackson Co. y. Nichols (Ind. Sup.) 38 N. E. 526;
Omaha & R. V. Ry. Co. v. Rybum, 40 Neb. 87, 58 N. W. 541; Healy v. Vlsalla
ft T. R. Co., 101 Cal. 585, 36 Pac. 125; Edwards v. Common Council (Mich.)
60 N. W. 454; Dooner v. Delaware & H. Canal Co., 164 Pa. St. 17, 30 Atl.
269; Haden v. Sioux City & P. R. Co. (Iowa) 60 N. W. 537. Where an attor-
ney is paid his fee in advance, its amount is not the measure of damage for
breach of professional duty. Quinn v. Van Pelt, 56 N. Y. 417; Denver, T.
& Ft W. R. Co. V. Dotson (Colo. Sup.) 38 Pac. 322; Jacksonville, T. & K. W.
Ry. Co. V. Peninsular Land, Transp. & Manufg Co., 27 Fla, 1, 157, 9 South.
661; Todd v. Railway Co., 39 Minn. 186, 39 N. W. 318; Karst v. St. Paul, S. & T.
F. Ry. Co., 22 Minn. 118; Baldwin v. Railway Co., 35 Minn. 354, 29 N. W. 5; Bar-
nett V. Water-Power Co., 33 Minn. 265, 22 N. W. 535. The measure of dam-
ages for breaking a wagon Is the difference between its value just before
and Just after the injury, and a reasonable sum for the loss of use for a
period necessary to repair it. Hoffman v. Metropolitan St. Ry. Co., 51 Mo.
App. 273.
362 KEMRDIES. [Ch. 5
ful act must give the jury means of ascertaining the amount there-
of."
Interest is generally not allowed in uncertain and unliquidat<?d
ei Wfttts V. Norfolk & W. R. Co., 39 W. Va. 196, 19 S. B. 521. In an acUon
for mnliclous prosecution, nothing can be recovered for attorney's fees In-
curretl when their value is not proved. Mitchell v» Davles, 51 Minn. 168»
53 N. W. 363. In an action for the value of property wrongfully detained,
and for damages for such detention, plaintiff cannot be aUowed to testify,
as a conclusion, the amount of damages she has sustained, independently
of the value of such property. Wellington v. Moore. 37 Neb. 560, 56 N. W,
200; Landi-um v. Wells (Tex. Civ. App.) 26 S. W. 1001. Plaintiff was prop-
erly permitted to state to the Jury that his farm was worth |1,200 less after
than before the fire, and to give the reason for his opinion. Chicago & ES.
R. Co. V. Kern, 9 Ind. App. 505, 36 N. E.- 381; Little Uock & M. R. Co. ▼.
Barry, 68 Ark. 198, 23 S. W. 1097 (medical expenses); Atchison, T. & S. F.
Ry. Co. V. Click, 5 Tex. Civ. App. 224, 23 S. W. 833 (medical expenses); Cou-
sins V. lAke Shore & M. S. Ry. Co.. 96 Mich. 386, 56 N. W. 14 (medical ex-
penses); Salt River Canal Co. v. Hiokey (Ariz.) 36 Pac. 171 (refusal to de-
liver certificate of stock); La Duke v. Township of Exeter, 97 Mich. 450, 56
N. W. 851 (damage to plaintiff's horse). As to evidence of market price and
value, Mclennan v. Lemen (Minn.) 59 N. W. 628; Greenebaum v. Taylor, 102
Cal. 624, 36 Pac. 957; AuUs v. Young, 98 Mich. 231, 57 N. W. 119; Den
Bleyker v. Gaston, 97 Mich. 354, 56 N. W. 763; Dorr v. Beck. 76 Hun. 540.
28 N. Y. Supp. 206; Galveston, H. & S. A. Ry. Co. v. Silegman (Tex. Civ.
App.) 23 S. W. 298; Glovinsky v. Cunard S. S. Co., 6 Misc. Rep. 388, 26 N. Y.
Supp. 751; Constaqjt v. Lehman, 52 Kan. 227, 34 Pac. 745; Galveston, H. & S.
A. Ry. CJo. V. Williams (Tex. Civ. App.) 25 S. W. 1019; Union Pac. D. & G.
Ry. Co. V. Williams, 3 Colo. App. 526. 34 Pac. 731; Bassett v. Shares, 63 Conn.
39, 27 Atl. 421; Gulf, C. & S. F. Ry. Co. v. Matthews, 3 Tex. Civ. App. 403.
23 S. W. 90. And see, also, Bnisch v. Railway Co., 52 Minn. 512, 55 N. W.
57; Olson v. Sharpless, 53 Minn. 91. 55 N. W. 125; Mitchell v. Davies, 51
Minn. 168, 53 N. W. 363; Stiff v. Fisher, 2 Tex. Civ. App. ai6, 21 S. W. 291;
Chicago & E. R. Co. v. Smith, 6 Ind. App. 262, 33 N. E. 241; Geutr>
V. Railroad Co., 38 S. C. 284, 16 S. E. 893; Martin v. Railroad Co., 62 Conn.
331, 25 Atl. 239. Generally, as to burden of proof and necessity of proof,
see Green v. Barney (Cal.) 30 Pac. 1026; Llttlehale v. Osgood, 161 Mass. 340,
37 N. E. 375; Gulf, C. & S. F. Ry. Co. v. Rossing (Tex. Civ. App.) 26 S. W.
243; Watts v. Norfolk & W. R. Co., 39 W. Va. 196, 19 S. B. 521; Metropolitan
St. R. Co. V. Johnson, 91 Ga. 466, 18 a E. 816; Schrlver v. Village of Johns-
town, 71 Hun, 232, 24 N. Y. Supp. 1083; Campbell v. Alston (Tex. Civ. App.)
23 S. W. 33; Ohio & M. Ry. Co. v. HiU, 7 Ind. App. 255, 34 N. E. 646. An
to sufficiency of evidence, Texas & P. R. Co. v. McDowell (Tex. Civ. App.) 27
S. W. 177; Texas & P. R. Co. v. Bailey (Tex. Civ. App.) 27 S. W. 302; Steph-
enson T. Flagg, 41 Neb. 371, 59 N. W. 785; Norfolk & W. R. Co. v. Draper,
Ch. 5] DAMAGES. 863
causes of action/* Thus, it cannot be allowed in aotions ex de-
licto, based upon simi)]e negligence of a party to whom no pecun-
iary benefit could accrue by reason of the injury inflicted,'*
nor where the loss of profits is the measure of damage/* There
iire, however, many torts in which interest from the time of ac-
crual of cause of action is ordinarily allowed. Thus, the measure
of damages in case of a common carrier is the value of goods in-
trusted to him for transportation with interest from the time they
ought to have been delivered/' But where the highest court of a state
has, because of statute, held the rule to be otherwise, the United
States court will follow the holding of the state court"' Interest
has also be(*n allowed in trespass'^ for taking goods, and in
80 Va. 245, 17 S. B. 883; Netherland-American Steam Nav. Co. ▼. HoUandei
8 C. C. A. 1G9, 59 Fed. 417; PIU v. Brooklyn Heights R. Co., 6 Misc. Rep.
267, 27 N. Y. Supp. 230; Hartman v. Pittsburg Incline Plane Co.. 159 Pa. St.
442, 28 Atl. 145; Crow v. Manning, 45 La. Ann. 1221, 14 South. 122; Gaines-
ville, H. & W. R. Co. V. JjBLCj, 86 Tex. 244. 24 S. W. 269; St. Louis & S. F.
R. Co. V. Farr, 6 C. C. A. 211, 56 Fed. 994; Orsor v. Metropolitan Cross Town
R. Co., 78 Hun, 109, 28 N. Y. Supp. 966; Missouri, K. & T. R. Co. v. Reynolds
(Tex. Civ. App.) 26 S. W. 879; Carney v. Brome. 77 Hun, 583, 28 N. Y. Supp.
1019. Weight of erpert testimony as to damage is not conclusive In the
court Isear v. Bursteln (Super. N. Y.) 24 N. Y. Supp. 918.
•2 Anon., 1 Johns. 315.
•s Marshall v. Schrlcker, 63 Mo. 308; Kenney v. Railroad Co., Id. 99; Galves-
ton, H. & S. A. R. Co. V. Dromgoole (Tex. Civ. App.) 24 S. W. 372; Meyer
V. Railroad Co., 64 Mo. 542; De Stelger v. Railroad Co., 73 Mo. 33; Wade v.
Railroad Co., 78 Mo. 362.
«* Wiggins Ferry Co. v. Chicago & A. R. Co. (Mo.) 27 S. W. 568.
•8 Mobile & M. R. Co. v. Jurey, 111 U. S. r>84, 4 Sup. Ot. 500. And see
Gulf, C. & S. F. R. Co. V. Dunman, 6 Tex. Civ. App. 101, 24 S. W. 905; In-
ternational & G. N. R. Co. V. Dlmmltt Co. Pasture Co., 5 Tex. Civ. App. 186.
23 S. W. 754. The award of Interest may be regulated by statute. Thus, In
South Dakota, award of Interest on damage to property, caused by negligence.
is left to the discretion of the jury. Uhe v. Railway Co. (S. D.) 57 N. W. 484.
Measure of damages from delay in transportation. Gulf, C. & S. F. Ry. Co. v.
GUbert, 4 Tex. Civ. App. 360, 23 S. W. 320. And see note by Victor Levy In
1 Am. Law Reg. (N. S.) 220.
«• New Yoric, L. B. & W. R. Co. v. Estill, 147 U. S. 591. 13 Sup. Ct. 444.
«T Beals V. Guernsey, 8 Johns. 446. So, where plaintiff recovers Judgment
for destruction of his crops by an overflow, he is entitled to Interest on their
value. Gulf, C. & S. F. R. Co. v. Calhoun (Tex. Clv. App.) 24 S. W. 362;
Gulf, C. & S. F. R. Co. V. Dunlap (Tex. Civ. App.) 26 S. W. 655.
364 REMEDIIfiS. [Cfa. 5
trover,** on the ralue of chattels from the time of trespass or of
conversion.
126. Oompensatory damages may
(a) Such as the law presumes trom. the invasion of a
simple right, or
(b) Such as the law, in all other cases, requires to be
proved as a condition precedent to recovery.
127. Whenever the law presumes damages, the character of
the damages suffered is immaterial to the right of
the plaintiff to sue, however it may affect the ex-
tent of his recovery.
128. Whenever the la^w does not presume damages, before
the plaintiff can recover he must plead and prove
damages which conform to the legal staadard ; that
is, such damages must not be —
(a) Trivial or fanciftd,
(b) Merely sentimental, or
(c) Bemote, as distinguished firom proziznate.
Comp(»nsatory damages may be of many kinds. As to quantity,
they may be substantial or nominal; as to origin, direct or conse-
quential; as to cause, proximate or remote; as to pleading, general
or special. These yarious kinds of damages may conveniently be
considered in this order.
Direct and ConsegiLeniicd Damages.
There is an unfortunate ambiguity in the use of the terms "di-
rect'' and "consequential," with respect to damages. On the one
hand, they are sometimes employed as indicating the character
of the connection of defendant's conduct, as the cause of the dam-
siges complained of. Here "consequentiaF' is equivalent to "in-
direct." ®® On the other hand, the same terms frequently define
•8 Eddy V. Lafayette, 4 U. S. App. 247, 1 C. O. A. 441. 49 Fed. 807; Bissell
V. Hopkins, 4 Cow. 53; Hyde v. Stone, 7 Wend. 354; Baker v. W^heeler, 8
Wend. 505; First Nat Bank v. Lynch, G Tex. Civ. App. 590, 25 S. W. 1042.
And see damages in conversion, post, 737.
•0 Suth. Dam. c. 2, pp. 19, 20.
Ch. 6] DAMAGES. 865
the old distinction between trespass and case, and the same idea
therein involved, as it survives the repeal of mere forms of action.
In cases of trespass, in the old phraseology, or of the violation of
simple or absolute rights, in the modem, the damages are direct; in
cases of trespass on the case, in the old phraseology, or of the viola-
tion of a right not to be harmed, in the new, the damages are con-
sequential. Here ^^consequential" is used to describe, not the re-
lationship of cause and effect, but to set forth the very nature of
the wrong. Such damages must be alleged and proved. Direct
damages may be presumed. If a man run an umbrella into an-
other's eye intentionally, the damage is direct, not consequential.
The remedy was trespass, not case. The right violated is a simple
or absolute one. But if the same act be done carelessly the
remedy was case, not trespass. The damage was consequential,
and the right violated was a right not to be harmed.*
Consequential damages are also sometimes confused with special
damages.^ ^
It may conduce to simplicity of treatment, perspicuity of lan-
guage, and clearness of thought, to apply only the terms "proxi-
mate" and "remote" (with the convenient subdivision into "direct"
and "indirect") to damages so far as connection as cause is con-
cerned, and, in discussing damages as an element essential to re-
covery on the part of the person injured, to consider (1) damages
which the law will presume, and (2) damages which the law will
not presume.
* This series to Illustrate the unsatisfactory classification of the law as to
rights. As a matter of fact, decisions on this i>oint were reached because the
judges regarded not so much the nature of the right as the nature of the
wrong. The difference between the conduct of a man who commits an as-
sault and another who, by his carelessness, does damage, is a real one.
Speaking with strict accuracy in both cases, the right of the sufferer which
was violated is the right not to be harmed.
70 Mr. Sutherland (volume 1, §| 14, 15) defines '^direct damagies" as includ-
ing damages for all such injurious consequences as proceed immediately from
the cause which is the basis of the action; and "consequential damages," as
those which the cause in question naturally, but indirectly, produced. He
cites, as an iUusftration of consequential damages, Teagarden y. Hetfield, 11
Ind. 522, which was a case of trespass, in which the damages were necessarily
direct, and not consequential; but the damages were special, as distinguished
from general.
•>
Xominal dainaj;*r9 anr tit«M#^ avanii^ w!i«?n. firoHi d^ nature of
fh#r #ta«^. jir*m*r i^i;^^T bai» b»-*fn 4»*q»- rfi^r anif^aiit of wkkrh the
yrtiffA Mirir^rfT fails to riiow/'
XofDinal d^ma^res, it h.K4 b^^n a^^tm.'* an* tboee which the lam"
pr^nmf^i to follow the iDTa.Mon of another's simple ri^ts.. as dis-
tin^inhf^ from his rights not to be harmed. Ae<!ordi]i^j, in snch
^-ases, the law refuses to applj the ™^^«ti". ""De minimis n<m curat
l^'xJ^ Ta Tliris. in an English cas^, a c«»nrt diretrted a verdict to be
entered for one pennj damagesi'^ The maxim wfll not be applied
to trespass to land«^* Ho, when a p^Tyon. as a joke, took reins worth
$^f frrmi anothers horse, it was held error to dismiss an action
therefor/* The slightest willful injarr to the person, on the same
ft BelllD^ham Bay Sc B, C. R. Co. t. Strand, 4 Wash. 311. 30 Pac. 144. In
fiminf^tt, ^'nofminal damages" are defined to mean a Bom of money whicli has
no exfutenr'e. In point of qnantirjr,— a mere pe^ on which to bang costs.
K^'fttimont T, Greatbead, 52 E. C. L. 41^. And see Fanner t. Crosbj, 43 Minn.
4rM 4tyz, 45 N, W. 866; Eaton t. Lyman, 30 Wis. 41; Hickey t. Baird, 9
Ml^fh. 32; Jifnnlni^ii ▼. Ix>ring, 5 Ind. 2ri0; Willfion t. McEroy, 25 CaL 170, and
vHmm» Hut this distinction can tiardly be applicable to cases in torL Pig.
TfrtiM, 125.
7 » Ante, c. 1, **InJnria gine Damno"; c. 4, "Statute of Limitations." And
n4(! (Rowley ▼. Davidfion, 10 Minn. 392 (Gil. 314); Woods' Mayne, Dam. 7;
Qiiln V. Moore, 15 N. Y. 432; Mirohell y. Mayor, etc., 49 Ga. 19; Smith ▼.
Wbitlng, \m ManH. 122; Fitzpatriclc v. Railway Co., ^ Me. 33, 24 Atl. 432;
Mtinro^* r. Htlckn<*y, 48 Mo. 4452; Bagby y. Harris, 9 Ala. 173; Champion ▼.
VlfW'j-nt, 20 Tex. 811.
7" Am try refusal to assess nominal damagies, see Funk y. Eyening Post Pub.
CJo., 78 Hun, 497, 27 N. Y. Supp. 1(J89; Shipps t. Atkinson, 8 Ind. App. 505,
;Wi N. M. 375; Schwartz v. Davis (Iowa) 57 N. W. 849; Ady v. Freeman, Id.
H7J>; Konyon v. W. U. Tel. Co., 100 Cal. 454. 33 Pac. 75. See the answer of
Holt, Vu J. (Ashby v. White, 2 lA, Raym. 953), to Powys, J. (2 JA, Raym.
(H4), and Whitrher v. Hall, 5 Barn. & C. 269-277; Pindar v. Wadsworth, 2
KiiHt, 154; Hcnc<a U. ('o. v. Auburn & R. R. Co., 5 Hill. 170. "De minimis
noil curnt lex" docs not apply to 'trespass on land, because it might be eyi-
dcncM* of tltlo. BraKg v. Lamway, 65 Vt. 673, 27 Atl. 492.
T4 Fo|j6(» V. Thompson, 1 Taunt. 121 (case cited by Heath, J.); Wright v.
Froonuui, 46 III. App. 421; Warden v. Sweeney, 86 Wis. 161, 56 N. W. 647.
tu Hrngg V. Lara way, 65 Vt. 673, 27 Atl. 40?.
T« Wnrtnmn v. Swlndoll (N. J. Krr. & App.) 25 Atl. 356; 1 Hil. Torts. 90;
Honocn Hond To. v. Auburn & R. R. Co., 5 Hill, 171.
Ch. 5] DAMAGES. 867
principle, is a sufficient basis for recovery.'^ One court, however,
has gone so far as to refuse to hold a sherifif liable for unlawfully
using a person's pitchfork to remove hay proi)erly attached,
when the pitchfork was returned uninjured.^* WlH»n damages
are thus presumed from 'conduct, they may not strictly be called
"compensatory." ^* Indeed, they may be awarded although the in-
jury results in an actual benefit to the complainant.'® On the
other hand, they may be strictly coincident with the actual extent
of the harm suffered, and if the same state of facts convince the
jury that the plaintiff suffered more, he can recover substantial
damages.*^ Accordingly, they sometimes are, and sometimes may
not be, strictly compensatory.
When Damaged are not Presumed.
Where the damages for which recovery is sought are not pre-
sumed, but must be proved, — that is, where the right violated is
not a simple right, but a right not to be harmed, — the law requires
proof of damages which comes up to the legal standard. If the
damage thus required and proved be so small as to show that the
suit was trivial, vexatious, or hard, the courts will not sustain the
claim.*' In such cases the law will not n»fuse to a]>ply the maxii'i.
"De minimis non curat lex.^' •• It would seem, however, that if the
Tf Holt, C. J., In Ashby v. White, 2 Ld. Ray in. 955, approved; Brent ▼.
Kimball, 60 111. 211. And see Tatnall v. Courtney, 6 Houst. (Del.) 434.
T« Paul V. Slason, 22 Vt. 231. But see Fullam v. Steams, 30 Vt. 443. And
see KuUman v. Greenebaum, 02 Cal. 403, 28 Pac. 674.
7»Pijf. Torts, 127.
«oRich V. Bell, 16 Mass. 294; Stowell v. Lincoln, 11 Gray, 434; Glle v.
Stevens, 13 Gray, 146; Jewett v. Whitney, 43 Me. 242; Hlbbard v. W. U. Tel.
Co., 33 AVls. 558; Francis v. Schoellkopf, 53 N. Y. 152.
81 There Is no rule limiting; the recovery for wrongful assault to nominal
damages, but the amount thereof is a question for the jury. Caldwell v. Cen-
tral Park. N. & E. R. R. Co. (Com. PI.) 27 N. Y. Supp. 397. And see Wam-
pach V. Railway Co., 22 Minn. 34.
8« Potter V. Mellen, 36 Minn. 122. HO N. E. 438; Steinbach v. Hill, 25 Mich.
78; Kenyon, C. J., In Wilson v. Rastall, 4 Term R. 753; Williams v. Mostyn,
4 Mees. & W. 144; Young v. Spencer, 10 Bam. & C. 145.
««Pig. Torts; Clerk & L. Torts. And see Mietzsch v. Berkhout (Cal.) X>
Pac. 321. "It is not only to those who are greatly damnlflod by the illegal
act of another to whom the law gives redress; but Its vindication extends
to every person who Is damnitled at all, unless, indeed, the loss sustained is
368 KEMKDIES. [Ch. 5
complaint shows that the plaintiff is entitled to nominal dania|!;es,
it is not demurrable.'^ Probablj the clearest illnstration of the
principle is in the case of nuisance, in which the courts require
the harm complained of to be substantial, not merely fanciful.**
Mental Suffering.
Again, some courts have refused to recognize mental suffering
unaccompanied by actionable injury as sufficient harm to be en-
titled to legal recognition.'* The broadest argument against the
award of such damages is — ^First, that the mental suffering cannot,
as a matter of fact, be sufficiently traced as a natural and probable
<;onMM)uence, in the ordinary course of things, of the wrongful con-
duct complained of; and, second, that if the connection as cause
and effect can be traced, the difficulty of determining whether the
injuries were caused by the negligent act would be greatly in-
creased, and a wide field would be opened for imaginatiye claims,
and purely speculative litigation encouraged.'^ Sometimes, how-
ever, the case is said to rest on the limitation as to natural
and probable consequences of defendant's conduct," and some-
8o small as to be unnoticeable, by force of maxim, *De minimis non carat
lex.' ** Beasley, J., in Beseman y. Railroad Co., oO N. J. Law, 235, 13 AtL
104. And see Freeman v. Venner, 120 Mass. 424L A rare and trifling injury,
necessarily resulting from a lawful business, will not sustain an action at
law. Price v. Grantz, 118 Pa. St 402. 11 Atl. 794. Cf. Brown v. Watson,
47 Me. 161.
8* Tort, Larson v. Chase, 47 Minn. 307. 50 N. W. 238; Hudson v. Archer
<S. D.) 56 N. W. 101)0; contract, Bums v. Jordan, 43 Minn. 25, 44 N. W. 523.
88 Kenyon v. W. U. Tel. Co., 100 Cal. 454, 35 Pac. 75; post, p. 808, "Nui-
sance."
88 "Mental pain and anxiety the law cannot value, and does not pretend to
redress, where the unlawful act complained of causes that alone." Lynclt
V. Knight, 9 H. L. 577-598. Wyman v. Leavitt, 71 Me. 227, per Virgin. J.;
Levy y. Railway Co., 59 Tex. 543, 12 Cent Law J. 534-536; IndlanapoHs & St.
L. Ry. Co. V. Staples, 62 111. 313; Canning v. Willlamstown, I Cush. 451.
See note by Mr. Campbell Black, on "Mental Anguish," In 11 C. C. A. 109;
Puggan T. Baltimore & O. R. R., 159 Pa. St. 248, 28 Atl. 182, 186.
87 Victorian Ry. Com'rs v. Coultas, 13 App. Caa. 222; Beven, Neg. 60-71;
2 Redgw. Dam. 642, 643; The Corsair, 145 U. S. 335-338, 12 Sup. Ct. 949.
88 Phillips y. Dlckerson, 85 III. 11. A charge which allows damages for
the pain and suffering which plaintiff "may endure hereafter,'* and for the
loss of such time as the eyldence shows "she will be likely to suffer here-
Ch. 5] DAMAGES. aOi»
timeB ''on the difficulty of the character of the damages."'*
While the general analogy from other actions in tort, and other
potent considerations, justify such actions,*® the general trend of
decision denies, in the absence of statute, the right to recover for
mental suffering, unaccompanied by other injury resulting from
failure to deliver a telegraph message.** Where, however, one has
established his cause of action for harm to his person, property, or
reputation, he may then recover for injured feelings and mental
suffering.** Thus, where there has been an injury to the body,
after/' Is erroneous, as aUowing the Jury to go into the field of mere proba-
bility. Hardy v. Milwaukee St. Ry. Ca, 89 Wis. 183, 61 N. W. 771.
«» Canty, J., in Francis v. W. U. Tel. CJo. (Minn.) 69 N. W. 1082. And see
8 Harv. Law Rev. 205; Rowell ▼. W. U. Tfel. Co., 75 Tex. 26, 12 S. W. 53t
('intolerable litigation*'). As to the grief of a mother whose miscarriage had
been brought on by defendant's negligence, it was said in Bovee v. Danville,
53 Vt 190: "If, like Rachel, she wept for her children, and would not be
comforted, a question of continuing damages is presented, too delicate to bo
weighed by any scales which the law has yet invented." Cf. Oliver v. La-
valle, 36 Wis. 592; ante, c. 1, ''Connection as Cause," note.
•0 Francis v. W. U. Tel. Co. (Minn.) 59 N. W. 1078. A telegram stating
that: "Grace Is very low. Can you come, and bring Maude?"— informs tlio
company that the addressee has a serious interest in Grace's condition, and
of the consequences of a failure to promptly deliver it. W. U. Tel. Co. v.
Linn (Tex. Civ. App.) ^ S. W. 895, affirmed 87 Tex. 7, 20 S. W. 490.
•1 Summerfield v. W. U. Tel. Ck)., 87 Wis. 1, 57 N. W. 973; Gulf, C. & S.
F. Ry. Co. V. Trott (Tex. Civ. App.) 25 S. W. 431; Francis v. W. U. Tel. Co.
(Minn.) 59 N. W. 1078; Chapman T. Telegraph Co., 88 Ga. 7G3, 15 S. E. 901;
Tyler v. W. U. Tel. O)., 54 Fed. 634; Kester v. W. U. TeL Co., 55 Fed. (503.
•2 Morgan v. Curley, 142 Mass. 107, 7 N. E. 726 (assault and battery); Wy-
man v. Leavitt, 71 Me. 227 (assault and battery); Goddard v. Railway Co.,
supra (malicious prosecution); Beach v. Hancock, supra (malicious prosecu-
tion); Phillips y. Hoyle, 4 Gray, 5G8 (malicious prosecution); Hatch v. Ful-
ler, 131 Mass. 574. And see Pennsylvania Co. v. Graham, 63 Pa. St. 200:
Smith v. Railroad Co., 23 Ohio St. 10; McMahon v. Railroad O)., 39 Mo. 438.
The federal courts have not recognized mental anguish pure and simple as
making out a cause of action. W. U. Tel. Co. v. Wood, 6 C. C. A. 432, 57
Fed. 471; Kester v. W. U. Tel. Co., 55 Fed. 603; Gahan v. W. U. Tel. Co..
59 Fed. 433 (under Minnesota statute); Tyl» v. W. U. Tel. 0>., 54 Fed. 634
(common law of Virginia). However, in Crawson v. W. U. Tel. Co., 47 Fed,
544, the rule is limited to cases where the mental suffering is unaccompanied
with other injuries, and where there has been no wanton or malicious purpose
on the part of the company's agent in not delivering the message.
LAW OF TORTS— 34
*>-
70 KLJU.Du^. £Cli. 5
damages for incidental and fatnre mental suffering maj be recov-
ered.*^ But mental smffering induced bj the plaintiff's crippled
or repolsire appearance is not a basis for daniage&*^
Whil** ni#-r»- p*-ril.*'' i»r frijrht. * asK a di<tiD«r element of damage,
may not be recorered, still peril and fright, as a part <rf mental
ai^oDv,*^ may be considered bj the jnrr, — as fear of hydrophobia
from the bite of a dog.**
Homiliation consequent on being ejected from a car/* or bein^
•< KenDon T. GUmcr, 131 U. 8. 22. 0 Soil. (X 686; W. U. TeL Go. r. HalJ«
124 i:. 8. 444. 8 Bop. Ct. 577; Kenoedj t. Snssr Co^ 125 MsflS. 90; Noorae
r. Par-kard, 138 Mass. 9>i: Smith r. Bagwell, 19 Fla. 117; Cmtia t. Bail-
rcnd Co., 18 N. T. 534: Stewart t. Riiion. 38 Wis. 584; Fry ▼• Railroad Co..
45 Iowa. 416; Beiiike r. Bentley \Wiii.> 63 N. W. 1055; Rolnnaon t. Simpson.
8 Hooirt. (Del.) 398^ 32 AtL 2K7; Atchison, T. & S. F. R. Co. T. Midgett (Kan.
A pp.; 40 Pac. 905. In an action for personal InJurieB, plaintUTs expressions of
pre««ent exist ioK pain, and Its locality, are competent eridence. LonisriUcN.
A. Sc C. Ry. Co. T. Miller (Ind. Sap.) 37 N. E. 343; Demann t. Railway Co.
<rv»m. in.) 30 N. Y. Sopp. 926; Allen t. Railway Co. (Tex. Civ. App.) 27 S.
IV. 943 (mental angnisb from fright); Stntz t. Chicago ft N. W. R. Co., 7^
Wis. 147, 40 X. W. (i53; Uenner t. Canfleld, 36 Minn. 90, 30 N. W. 435;
IMilllirw r. Di< kerson, 85 111. 11. Coffin ▼. Varila (Tex. CiT. App.) 27 S. W,
Wjii (physical and mental suffering from false imprisonment).
•4 Bovee t. Danville, 53 Vt 183; C^iicago, B. ft Q. R. 0>. t. Hines, 45 III.
App. 299; dilcago, R. I. ft P. R. Co. v. Canlfield, 11 a C. A. 552, 63 Feil.
396. Where, however, a boy nine years old Is injured so as to be crippled
for life, it is proper to allow iiim for his mental anguish arising from this act
Schmidt y. St. Lonis, I. M. ft S. Ry. Co., 119 Mo. 256, 24 S. W. 472. And it
has been held that, in an action for personal Injuries, the jury may consider
the pain re<'eived at the time of the injury, any pain afterwards endured from
such injuries, or which may result from such injuries as the natural cause;
and any disfigurement to the person. St Louis S. W. Ry. Go. v. Dobbins
(Ark.) 30 S. W. 887.
•8 American Waterworks Co. v. Dougherty, 37 Neb. 373, 55 N. W. 1051.
Actual damages cannot be recovered for mental anguish caused by fright, un-
accompanied by physical injury. Chicago, R. I. ft T. Ry. Co. v. Hitt (Tex.
Civ. App.) 31 S. W. 1084.
»« Southern Pac. Co. v. Ammons (Tex. Civ. App.) 20 S. W. 135.
•T San Antonio ft A. P. Ry. Co. v. Coriey (Tex. Sup.) 29 S. W. 231.
•» AVamer v. Chamberlain, 7 Houst. (Del.) 18, 30 Atl. 638.
vv Post, p. 392, "Exemplary Damages." As to damages for mental suffer-
ing OD being carried beyond destination, see Trigg v. Railway Co., 74 Mo.
147. No recovery can be had for great ^'distress of mind, anxiety, mortifica-
Ch. 5] DAMAGES. 871
excluded because of color or other reason,^ ^^ is a proper element
for a jury's consideration. Injury to the good name and character
of a family, and the shame, mortification^ and mental suffering of
a parent because of the seduction of a child, are proper elements
of damage.*** Indeed, courts have gone so far as to recognize the
right to recover for injured sensibilities in cases of unlawful in-
terference with dead bodies.*®*
A person's recovery for mental anguish is confined to his feel-
ings as to himself, and does not extend to his anxiety for third per-
sons.***
It is required, in actions for injuries to the reputation, that the*
damage complained of must be based on a temporal or material
loss, capable of being estimated in money; that is to say, the dam-
age must be pecuniary.***
Proxmate and Remote Damages*
Where damages are of the gist of a cause of action, the action
will not lie if they are remote.*** If damages are not of the gist
of the plaintifiTs cause of action, even then he cannot recover re-
mote damages.
tlon, and suspense" consequent on failure to run special train to enable
plaintiff to see his sick father. Wilcox v. Railroad Co., 3 C. C. A. 73, 52
Fed. 264.
100 West Chester & P. R. Co. r. Miles. 55 Pa. St. 200; Chicago & N. W.
Ry. Co. V. Williams, 55 111. 185; Pleasants v. Railroad Co., 34 Cal. 586.
101 Garretson v. Becker, 52 HI. App. 256; Phelin v. Kenderdine^ 20 Pa.
St 354; Suth. Dam. (2d Ed.) S 1283. In an action by a wife for the aliena-
tion of her husband's affections, she can recover damages, without proof of
loss of- support Rice v. Rice (Mich.) 62 N. W. 8;^.
102 Meagher v. DriscoU, 90 Mass. 281; ante, p. 13, **Bcclesiastical Courts";
Smith V. Railroad Co., 23 Ohio St 10; Chicago & A. R. Co. v. Flagg, 43 ni.
364;' Baltimore & O. R. Co. v. Kean, 65 Md. 394, 5 AU. 325.
108 Keyes v. Railway Co., 36 Minn. 290, 30 N. W. 8^.
104 "It is well settled that in an action for libel on them in their business
by two or more partners, damages cannot be recovered for any injury to
their feelings." Donaghue v. Gaffy, 53 Conn. 43-49, 2 Atl. 397. And post,
p. 8US, *'Libel and Slander."
io»l Suth. Dam. 50; Lamb v. Stone, 11 Pick. (Mass.) 527; Bradley v. Val-
\er, 118 Mass. 239; Harrison v. Redden, 53 Kan. 205, 36 Pac. 32.'>.
y
'., 1
EcxEin?. [Clu 5
i29« In dctemtfiring' wlist 10 s praziimte
mote eoMcqnence, the Kngliwh eomtB fiirthH» to
C6pC th6 measiirte <xf dtimige in cases of contfactSy and.
to a^rard sneh damages as X directly and neoeasazily
result from the wrong complained of; and 1>) such
farther damages as should haire been foreseen hy
the wrongdoer, in Tieir of Us knowledge, actual or
constroctiTe, of the spedsl circamstances of the case.
130* The American courts do not seem to have determined
▼ery definitely whether the test is —
(2i, What a reasonably prudent man -would or should
have f orese^i under the circumstances ; or
(\^) What follows as a natural result in the ordinary
course and constitution of nature.
13L A much wider liability is recognized when the wrong
complained of arises firom ill^al, fraudulent, or
malicious conduct.
All ha H tMfon neen, a person ig held liable for the natnral and prob-
able coDHcqaeneeg of his conduct. But there is mnch dispute as to
how Ktjch consequences are to be determined, and when the damage
is proximate and recoverable, or when it is remote and not actiona-
blif.***^ The English courts incline to hold that "the rule with regard
lo the remotenoHS of damage is precisely the same whether the dam-
ag(;s are claimed in actions of contract or of tort" *•■ Accordingly,
the measure of damages in torts follows the rule for damages in
(;ontracts laid down in Hadley v. Baxendale.*^* Therefore, a wrong-
doer is liable for damages resulting directly from his conduct, and
for HU(rh consequential damages as were, or in reason should have
bocjn, contemplated by him.^^® Tims, where a woman alleged spe-
»»
107 Ante, c. 1, "Conuocllon as Cause.'
108 The N(»tting Hill (1884) 0 Prob. Div. 105-113, per Lord Esher, M. R.
100 L»;j L. J. lOxch. 179. And see Paine v. Sherwood, 21 Minn. 2^; Prohrelch
r. Ofunmon, 28 Minn. 470, 11 N. W. 88; Freeman v. Dempsey, 41 111. App.
MO Hhnrpe v. Powell, L. R. 7 C. P. 253; ante, p. 61, "Connection as Cause/'
Hut seA Hydraulic Kngineering Co. v. McHaffle, 4 Q. B. Div. 670. And see
Ch. 5] DAMAGKS. 373
cial damages from slander, whereby she lost the consortium of her
husband, Lord Wenslejdale said: ''To make the words actionable by
reason of special damages, the consequences must be such as, tak-
ing human nature as it is, with its infirmities, and having regard to
the relationship of the parties concerned, might fairly and reason-
ably have been anticipated and feared would follow from the speak-
ing the words, not what would reasonably follow or we think ought
to follow." *" However, to correspond to the rule in contract, the
rule in torts is more accurately said to be that the wrongdoer is
liable for the natural and probable consequences of Mb conduct, and
for any special consequences which may ensue, if he has at the time
of his wrongdoing notice of the special circumstances by reason
whereof those consequences will naturally and probably ensue as to
the result of his wrongdoing."' Thus, a man is responsible for the
ordinary consequences likely to result from his act, but not when a
fresh train of circumstances are set on foot, and the natural course
of events is altered by some other impelling agency; for that agency
then becomes the causa proxima, unless, indeed, a reasonable man
could have foretold that new cause. Thus, where D., in breach of
statute, washed a van in the public street, and the waste water ran
towards a grating choked with ice, and then ran to the street and
froze, and C.'s horse slipped on the ice, D. was held not liable. How
could he expect the frozen accumulation at the grating? *^* There
is, however, authority for referring actionable consequences to the
connection existing in the course and constitution of nature, — that
is, normally or likely or probable of occurrence in the ordinary
course of things, — whether in fact foreseen, or whether they should
reasonably have been foreseen; it being sufficient if they followed
naturally."*
Smith V. Railway Co., L. R. 6 C. P. 14 (per Pollock, B.); Cattle v. Waterworks,
L. R. 10 Q. B. 453; Greenland v. Chaplin, 5 Exch. 243; Osborne v. London
A N. W. R. Co., 21 Q. B. Div. 220; 57 L. J. Q. B. CIS; Pig. Torts, 164.
1" Lynch v. Knight, 9 H. L. Cas. 577. Cf. Ix>rd EUenborough, In Town-
send Y. Wathen. 0 East, 277. *'A man must be taken to contemplate the
•probable consequence of what he does." Frascr, Torts, 164, IGo.
113 Clerk & L. Torts, 97. And see cases cited in Mayne, Dam. (4th Ed.)
40-^9.
118 Shearw. Tbrts, p. 53; Sharpe v. Powell, L. R. 7 C. P. 253.
11* Grove, J., in Smith v. Green, 1 C. P. Div. 92-96; AUsop v. Allsop, 5
374 REMEDIES. [Ch. 5
Ainerican Rule.
In America, there is no absolute unanimity of opinion on the sub-
ject.*" On the one hand^ there is a class of cases which incline to
test the extent to which consequences are actionable by the degree
to which they could and should have been foreseen. **The primary
cause may be the proximate cause of a disaster, though it may oper-
ate through successive instruments, as an article at the end of a
chain may be moved by force applied to the other end, that force
being the proximate cause of the movement. The question always
iSy was there an unbroken connection between the wrongful act and
the injury, — a continuous operation? Did the fact constitute a con-
tinuous succession of events, so linked together as to make a nat-
ural whole, or was there some new and independent cause interven-
ing between the wrong and the injury? It is admitted that the rule
is difficult of application. But it is generally held that, in order to
warrant a finding that negligence, or an act not amounting to wan-
ton wrong, is a proximate cause of an injury, it must appear that
the injury was the natural and probable consequence of the negli-
gence or wrongful act, and that it ought to have been foreseen in the
light of the attending circumstances." **• Thus, wh«^ a common
carrier undertook to transport freight from Philadelphia to Pitts-
Hen. & M. 534. Cf. Lord EUenborough, in Yieara v. WUcocks, 8 East, 1, witb
I^ord Wensleydale, In Lynch v. Knight, 9 H. L. Cas. 577.
115 See Earl, J., in Ehrgott v. Mayor, 96 N. Y. 264-280. In Ohicago, M.
& St P. II. Co. V. Elliott, 5 C. C. A. 347, 55 Fed. 949, the distinction between
the two standards does not seem to have been recognized.
110 Milwaukee, etc., R. Co. y. Kellogg, 94 U. S. 469; ScheflTer y. Railroad
Co., 105 U. S. 249; Gilman y. Noyes, 57 N. H. 627. But see opinion of Ladd,
.T. "Damage is too remote if, according to usual experience of mankind, the
result ought to haye been apprehended." Lane y. Atlantic Works, 111 Mass.
136, per Colt, J. Hill v. Wlnsor, 118 Mass. 251; Lowery y. W. U. Tel. Ca.
60 N. Y. 198; Jackson y. Wifl<."onsln Tel. Co., 88 Wis. 243, 60 N. W. 430; Pear-
son y. Cox, 2 C. P. Div. 369. "The ordinary and natural consequences are
regarded, sometimes, as those which should haye been foreseen." Hoag y.
Railroad Co., 85 Pa. St. 293. Cf. Heury y. Sduthem P. R. Co., 50 Cal. 176-
183, Chicago & A. R. Co. y. Pennell, 110 HI. 435, and Fent y. Railroad Co.,
59 111. 349, 357-362. It is not essential that Such consequences should not
have been foreseen in fact. Alabama O. S. R. Co. y. Chapman, 8) Ala. 615,
2 South. 738.
Ch. o] DAMAGES. 875
burg by canal, and by reason of lame mules lost his cargo by flood,
it was held that his negligence in having lame horses was a condi-
tiun, not a natm*al and probable cause. Human foresight could not
have foreseen the consequences of the lameness. It could not know
the time of flood or danger. Chief Justice Lowry supposes a case:
'^A blacksmith pricks a horse by careless shoeing. Ordinary fore-
sight might anticipate lameness and unfltness for use for some time
to come, but could not anticipate that by lameness the horse would
be delayed passing through a forest until a tree fell and killed his
rider." Such injury would not be the measure of the blacksmith*8
liability."' •
It is to be remembered, however, with respect to many actions of
this kind, that they are based on quasi contracts or quasi torts.
The cases, accordingly, reason much after the contract measure of
damages.*** But there is an increasingly strong tendency to refer
natural and probable consequences to the ordinary course and con-
stitution of nature. The introduction of the capacity to foresee (even
of the law's beloved, the ordinarily prudent man) is either a useless
11 T Morrison v. Davis, 20 Pa. St 171.
lift Denny v. New York Gent K. R., 13 Gray, 481. As to the test that
damages are proximate aaly when they are natural and probable, in the
sense that a man of ordinary inteUigence and prudence might reanonab'y hav.'
expected that they would result from his conduct complained of. sea N w*
man, J., in Block v. MUwaukee St Ry. Co., 89 Wis. 371, 61 N. W. 11 1-1 lOi,
citing Atkinson v. Goodrich Transp. Co.. 60 Wis. 141-163, 18 N. W. 764;
Barton v. Pepin County Agricultural Soc, 83 Wis. 19, 52 N. W. 1129. And
see Travelers' Ins. Co. v. Melick, 12 C. C. A. 544, 65 Fed. 178. Therefore
the purchase by a father, for his son 11 years of age, of an air gun,
intended and commonly used as a toy or pla^'thing, is not, per se, an act of
culpable negligence, and cannot be held to have been made in reaso lable
anticipation of an injury caused by the use of the gun by another boy to
whom the son had loaned it Harris v. Cameron, 81 Wis. 239, 51 N. W. 437.
But see Brown v. Chicago, M. & St P. Ry. Co., 54 Wis. C42, 11 N. W. 350.
911; Pennsylvania R. Co. v. Hope, 80 Pa. St. 373; Atchison, T. & S. F. R.
Co. V. Stanford, 12 Kan. 354; Poeppers v. Missouri, K. & T. R. Co., 67 Mo
715; Maher v. Winona & St P. R. Co., 31 Minn. 401, 18 N. W. 1 5; Penn yl
vania R. Co. v. Kerr, 62 Pa. St 353; Morrison v. DavlP, 2D Pa. St 171
Lynch v. Knight, 9 H. L. Cas. 577; Crater y. Binnlnger, 33 N. J. Law» 513
McGrew v. Stone, 53 Pa. St. 436; Henry v. Southern Pac. R. Co.. 50 Cal. 176
Doggett v. Richmond & D. R. Co., 78 N. C. 305; Stanley v. Un'on Depot R
Co., 114 Mo. 006, 21 8. W. a32; Welck v. Lander, 75 111. 93; Daniels v. Bal
376 REMEDIES. [Ch« 5
circuity or deviation in reasoning or it serves to lessen materially
conseqaences producing actionable damages. If a prndent man
should be held to foresee what would ordinarily happen under the
circumstances, then nothing is gained by introducing him into the
test. He could not be held to foresee more. There is neither au-
thority nor reason for holding that he should see less. Indeed, the
modern tendency is to widen rather than narrow the consequences
of conduct for which a man is held resjwnsible.*" So, there are
many cases holding that liability extends to those injuries which
are direct and immediate consequences of the wrongful conduct, but
also to such consequential injuries as, according to common experi-
ence, are likely to, and in fact do, result from his act**® Therefore,
it is not essential that the wrong ccnnplained of could or could not
have been foreseen.*** While the injury complained of must have
been the result of the conduct attributed, the rule is that whoever
commits a tort is liable for all the injury he does, although the injury
could not have been contemplated as the result of the act done-
Damages are not too remote if, according to the usual experience of
mankind, the result ought to have been apprehended. It is enough
if the injury now appears to have been a natural consequence.
lantine. 23 Ohio St 532; Fent v. Tolodo, etc., Co., 69 111. 349; Greenland v.
Chaplain, 5 Exch. 243; Atkinson v. Goodrich Transp. Co., 60 Wis. 141, 18
N. W. 704; 1 Shear. & R. Neg. 29; Submarine Tel. Co. v. Dickson, 15 O.
B. (N. S.) 759; Hlggins v. Dewey, 107 Mass. 494; I^wery v. Manhattan R.
Co., 09 X. Y. 158.
118 Davis V. Garrett, 6 Bing. 716, per Tuedall, C. J.; Gate v. Gate, TO N.
H. 144.
120 Lane v. Atlantic Works. Ill Mass. 136; HIU v. Winsor, 118 Mass. 251.
This is the rule in criminal law. Why should civil responsibility be lees
extensive? Ijord Campbell, in Gerhard v. Bates, 2 El. & BL 490, quoted by
Whart Neg. § 78, said: "If the wrong and legal damage are not known
by common experience to be usually in sequence, and the damage does not.
according to the ordinary course of events, follow from the wrong, the
wrong and the damage are not sufficiently conjoined or concatenated as
cause and effect to support an action."
121 Brown v. Chicago, M. & St. P. Ry. Co., 54 Wis 342, 11 N. W. 3:i6, 911
(as in cases of assault); Vosburg v. Putney (Wis.) 50 N. W. 403; Bten v.
T^uyster, 60 N. Y. 252 (conversion); Harrison v. Berkley, 1 Strob. (S. C.) 525
(selling liquor to slave, resulting in death); Henry v. Railway Co., 60 Cal.
176.
Ch. 5] DAMAGES. 377
Hence, where a passenger, by reason of the wreck of a caboose,
caused by negligence of the railroad company, was left nine miles
from a station, on a cold winter night, from which he suffered, then
and afterwards, from rheomatism, the company was held liable.^''
While, on the one hand, under the test of consequences which
should have been foreseen, a suicide is too remote to be the proxi-
mate result of physical injuries caused by another's negligence,^**
i«« Schumaker v. St. Paul & D. R. Co., 46 Minn. 39, 48 N. W. 559. Ck)m-
pare Drake ▼. Kiely, 83 Pa. St 492, where tbe court left the case under sim-
ilar circumstances to the jury to determine the question of proximate cause.
'The rule laid down in the Squib Case is applicable to aU cases of negligence.
Not an author nor a decision confines it to the case of intentional tort" EUi-
ott, J., In LouisviUe, N. A. & C. Ry. Ck>. v. Falvey, 104 Ind. 409-433. 3 N. E.
389, and 4 N. E. 908. In Ehrgott v. Mayor, etc., 96 N. Y. 264, it was said:
*'When a party commits a tort resulting in a personal iAjury he cannot fore-
see or contemplate the consequences of his tortious act He may knock a
man down, and his act may, months after, end in paralysis or in death, re-
sults which no one contemplated or could have foreseen. A city may leave
a street out of repair, and no one anticipate the possible accident which may
happen or the Injury which may be caused." "If one is legally responsible
for an act, he is chargeable with the direct results of the act, however sur-
prising." Prof. J. H. Beale, Jr., in The LangdeU, "Twenty-Fifth Anniversary
Number" of the Harvard Law Review (vol. 9, pp. 80, 81); citing Harrison v.
Berkley, 1 Strob. 525; Tlce v. Munn, 94 N. Y. 621; Cunnington v. Railway
Ck>., 49 Law T. (N. S.) 392; Eten v. Luyster, 60 N. Y. 252. And see Stevens
V. Dudly, 56 Vt 158, 166; LouisviUe, N. O. & T. R. Co. v. Durfree, 69
Miss. 439, 13 South. 697 (obstructing a crossing). Ct. St Louis S. W. R. Co.
V. Thomas (Tex. Civ. App.) 27 S. W. 419; Texas &, P. Ry. Ck). v. Ludlam, 2
C. C. A. 633, 52 Fed. 94. And see Whart Neg. | 77; 1 Suth. Dam. | 16, and
cases cited; Baltimore & O. R. CJo. v. Kemp, 61 Md. 619; Brown v. Chicago,
ii. & St P. R. O)., 54 Wis. 342, U N. W. 356, 911 (cf . Phillips v. Dickerson, 85
IlL 11); International & G. N. R. Co. v. Terry, 62 Tex. 380; Cincinnati, H. & L
R. Co. V. Blaton, 94 Ind. 474; Klein v. Receiver, 26 N. J. Eq. 474; Matteson v.
Railroad Co., 62 Barb. 364; Memphis & C. R. Co. v. Whit fie! d, 44 Miss. 466;
Spicer v. Railroad Co., 29 Wis. 580 (but cf. Trigg v. Railroad Co., 74 Mo.
147); Pullman v. Barker, 4 Colo. 344; Lewis v. FUnt & P. M. R. Co.,
54 Mich. 55, 19 N. W. 744.
iss Sheffer v. Railroad Ck>., 105 U. S. 249; HaUe's Curator v. Texas & P.
By. Co., 9C. C. A. 134, 60 Fed. 557; Southern Pac. 0>. v. Ammons (Tex. Civ.
App.) 26 S. W. 135. Cf. hypothetical cases of Cockbum, C J., in Hobbs v.
Railway CJo., L. R. 10 Q. B. 111.
378 REMEDIES. [Ch. 5
on the other hand^ paralysis,*** or death by contagion,**" according
to the natural consequence criterion, may be the proximate result of
such harm so caused.
In New York, L. E. & W. R CJo. v. Estill,*** a common carrier with-
out notice that cows were with calf undertook to ship them. The
unborn calves were lost through premature birth indnced by a col-
lision. The carrier was held liable for such deterioration in value,
notwithstanding the objection that such damages we*'e too remote,
— ^that "it was something the defendant could not anticipate or know
anything about." The only limit to the inquiry, the court held, is
"whether or not the subsequent development of the animal is trace-
able directly to the injury inflicted by the carrier. The difficulty in
proof is one of fact, not one of law." **^
lUustrationa of Remote Damages.
At one extreme are cases in which the connection between the
wrongful conduct and the harm complained of is so contingent
that the damages are said to be merely possible (as distinguished
from natural and probable) or speculative. Thus, if a steamboat
run down a fisherman's net, a recovery may be had for property de-
43troyed, but not for fish which might otherwise have been
caught."* On essentially similar principles, anticipated profits of
a business, of which the plaintiff charges he was deprived by tho
is« Bishop V. Railroad Co., 48 Minn. 26, 50 N. W. 927. And see Eh gott
V. Mayor, OC N. Y. 2G4.
125 state V. Fox (Md.) 29 Atl. 001.
!»• 147 U. S. 591, 13 Sup. Ct. 444.
127 GeneraUy, as to the test that the proximate cause is determ'n^d hj
the ordinary course of nature, or in accordance with common experi nci\
or the normal or likely or probable consequences in the ordinary course of
things. East Tennessee, V. & G. R. Go. y. Lockhart, 79 Ala. 315; Gerl ard
V. Bates, 2 El. & Bl. 476; Henry v. Southern Pac. Co., 00 Cal. 176; S i:ethu st
V. Barton Square Ind. Cong. Church, 148 Mass, 261, 19 N. E. 387; Hoailley
V. Northern Transp. Co., 115 Mass. 304; Deny v. PlitniT, 118 Mass. 131;
Hooy V. Felton, 11 C. B. (N. S.) 143; Lane v. Atlanfc Works, 111 Mans.
13«?; Smith v. Green, L. R. 1 C. P. 92; McDonald v. Snelling, 14 Allen, 293;
Wellington v. Downer Kei'osene Oil Co., 104 Mass. 04; Louisville, N. A. & C.
Ry. Co. V. Wood, 113 Ind. 544, 14 N. E. 572, and 10 N. E. 197; Jeffei-aonvlUe,
M. & I. R. Co. V. Riley, 39 Ind. 508; Whart. Neg. § 77.
12* Wright T. Mulvaney, 78 Wis. 89, 46 N. W. 1045. And see Rhines v
Ch. o] DAMAGES. 879
defendant's wrongful act, as by blocking up access to his place of
business,"* are generally,"* but not always,"* regarded as too
remote to justify recovery, unless the defendant's conduct was an
injury of a simple right, and constituted an invasion of the plain-
tiff's property."^ So a bank that wrongfully refuses to honor a
check drawn on it by a depositor is not liable in damages for the
arrest and imprisonment of the drawer of the check, on complaint
of the payee, for issuing a false check, but is liable only for injuries
Royalton. 61 Hun, 624» 15 N. Y. Supp. 044; Montgomery & E. R. Co. T.
Mallette, 92 Ala. 209, 9 South. 363; Brouasard ▼. Railway Co., SO Tex. 329,
16 S. W. 30.
i2»Todd V. Minneapolis & St L. Ry. Co., 39 Minn. 186, 39 N. W. 318;
Simmer v. City of St Paul, 23 Minn. 408.
iBoThe Lively, 1 GaU. 315^25, Fed. Cas. No. 8,403, per Sorty, J.; Boyd t.
Brown, 17 Pick. 453; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E.
<J86; Smith v. Condry, 1 How. (U. S.) 28; Blanchard v. Ely, 21 Wend. 342.
Preventing a directors' meeting, Martin v. Deetz, 102 CaL 55, 36 Pac. 368.
Or by a malicious prosecution, O'Neill v. Johnson, 53 Minn. 439, 55 N. W. 601;
Jackson v. Stanfield, 137 Ind. 592, 36 N. E. 345, and 37 N. E. 14; WlUiams
V. Wood, 55 Minn. 323, 56 N. W. 1066; Homan v. Franklin Co. (Iowa) 57
N. W. 703 (imless specially pleaded). In an action for misrepresentations on
the sale of a horse, allegations as to the amount the horse would have been
able to earn if sound and capable of trotting at a certain rate of speed are
too remote and speculative to constitute a proper element of damage. Wil-
liamson V. Brandenberg, 133 Ind. 594, 32 N. E. 834; Silsby v. Michigan Car
Co., 95 Mich. 204, 54 N. W. 761. But profits which would have been made
on an abandoned conti*act are ascertainable and not speculative. Lee v.
Briggs, 99 Mich. 487, 58 N. W. 477; Jackson v. Stanfield, 137 Ind. 572, 36
N. E. 345, and 37 N. E. 14. And see, Rio Grande W. Ry. Co. v. Rubenstein
<Colo. App.) 38 Pac. 76; Dickinson v. Hart, 142 N. Y. 183, 36 N. E. 801;
Stofflet v. Stofflet, 160 Pa. St. 62&, 28 Atl. 857. Loss of profits from In-
fringement of patents has been allowed. Seabury v. Am Ende, 152 U. S. THSl,
14 Sup. Ct. 683. Damages resulting from plaintiff's failure to obtain a modi-
fication of a contract that might have been made If his telegram had been
delivered promptly are too remote for recovery against a telegraph company
for failure to deliver the telegram. W. U. Tel. Co. v. Watson (Ga.) 21 S. E.
457.
isi Rose V. Groves, 5 Man. & G. 613 (although there was no proof of spe-
cial instance of customers going away); White v. Mosely, 8 Pick. (Mass.) 356;
Tarlton v. M'Gawley, Peake, 205.
182 But must be clearly proved. Crow y. Manning, 45 La. Ami. 1221, 14
South. 122.
380 REMEDIES. £Gh. 5
resulting to the drawer's credit**' Nor is the probability that one
would have been promoted in his employment an element of dam-
ages in an action for personal injury.**^ If a person be ejected
from a car, proximate damages would include annoyance, vexation,
and indignity; and, as circumstances, the jury would determine
presence or absence of malice, actual violence, threatening or in-
sulting language. But that he lost a job at his destination,
through the delay, is too remote. There might have been several
other independent causes to which such result could be referred.***
Courts incline to regard subsequent insanity as too remote a dam-
age to result from personal injury.***
lUusirations of Damages not too Remote.
But the mere fact that the damage complained of is not present,
but future, will not necessarily maJ^e it remote. Thus, in an ac-
tion for personal injuries, one may recover for future damages,
when the evidence justifies a finding that such damages will inevita-
bly and necessarily result.**"' There is no certain standard for the
measurement of damages for permanent personal injury, and fu-
188 Bank of Commerce v. Goes, 30 Neb. 437, 68 N. W. 84. And see Brooke
T. Bank» 69 Hun, 202, 23 N. Y. Supp. 802. The imprlBoument of <me for an
act committed while intoxicated is not the proximate consequence of the
liquor dealer's unlawful negligence In selling to him while Intoxicated; the
law haying intervened, and become the proximate cause. Bradford r. Boley
(Pa. Sup.) 31 Atl. 751.
184 Richmond & D. R. Co. t. EUiott, 149 U. 8. 266, 13 Sup. Ct 837.
i35Carsten v. Northern Pac. R. Co., 44 Minn. 454, 47 N. W. 49. And see
Glover v. Railroad Co., L. R. 3 Q. B. 25, 37 Law J. Q. B. 57;* Moore v.
Adam, 2 Chit. 198. Further, as to remote damages, see Boyle v. Brandon,
13 Mees. & W. 738 (seduction); Donnell T. Jones, 13 Ala. 490 (malicious pros-
ecution); Lincoln v. Railroad Co., 23 Wend. 425 (negUgence); Anthony v.
Slaid, 11 Mete. (Mass.) 290 (assault and battery); Swinfin y. Lowry, 37 Minn.
345, 34 N. W. 22 (assault and battery); Boyce y. BaylifFe, 1 Camp. 58 (false
Imprisonment). In an action by a wife for injuries resulting in a mis-
carriage, damages will not be allowed for the society, enjoyment, and pro-
spective services of the chUd. Tunnicliffe v. Bay Cities dtonsoL Ry. (3o.
(Mich.) 61 N. W. 11.
iseshecr^ y. Railroad Co., 105 U. S. 249; HaUe's Curator y. Texas A
P. Ry. Co., 9 C. C. A. 134, 60 Fed. 557.
187 Washington & G. R. Co. v. Harmon's Adm'r, 147 U. S. 571, 13 Sup. Ct
557; Ross v. Kansas City, 48 Mo. App. 440.
,^
€h. 5] DAMAGES. 881
ture pain resulting therefrom, and the matter is largely within
the sound discretion of the jury."" Indeed, the true test would
seem to be that the plaintiff should be compensated for time
lost*'^ and suffering endured, or which he Tvould probably lose or
endure, as a direct result of the injuries recovered.**^ Diminished
capacity to earn money is a proper element of damages.^^^
With respect to damages to property, the courts have gone to a
!•» Bigelow V. Metropolitan St. Ry. CJo., 48 Mo. App. 367; Ward v. Black-
wood. 41 Ark. 295; Gorham v. Railway Co., 113 Mo. 408, 20 S. W. lOtK);
Chicago V. Elzeman, 71 111. 131; Eddy v. Wallace, 1 C. C. A. 435. 49 Fed.
801; Mason v. Ellsworth, 32 Me. 271; Waterman v. Railroad Co.. 82 Wis.
613, 52 N. W. 247, 1136; McLaughlin v. Corry, 77 Pa. St. 109; Village of
Sheridan v. Hibbard, 119 lU. 307, 9 N. E. 901.
no Stafford v. City of Oskaloosa, 64 Iowa, 251, 20 N. W. 174; Mastersou
V. Mt Vernon, 58 N. Y. 391; Ehrgott v. Mayor, 96 N. Y. 204 (where plaintiff
was aUowcd to show amount of annual earnings for six or nine years an-
terior to the Injury complained of). Cf. Baltimore & O. R. Co. v. Boteler.
38 Md. 568 (where evidence was admitted to show that plaintiff's time was
not spent in useful occupation). Drinkwater v. Dlnsmore. 80 N. Y. 390. Cf.
Blackman y. Gardner Bridge, 75 Me. 214.
1*0 Woodard y. City of Boscobel, 84 Wis. 226, 54 N. W. 332 (where there
was a predisposition to disease). As to injury a^ravated by disease, see
Baltimore City Passenger Ry. Co. y. Kemp, 61 Md. 74; JeffersonviUe Ry.
Co. V. Riley. 39 Ind. 568; Allison v. Railway Co., 42 Iowa, 274; Houston
y. Traphagen, 47 N. J. Law, 23.
1*1 Central Railroad & Banking Co. v. Dottenheim, 92 Ga. 425, 17 S. E.
662; City of Joliet y. Conway, 119 111. 489, 10 N. B. 223; New Jersey Ex-
press Co. V. Nichols, 33 N. J. Law, 435; Fordyce y. Wlthei-s, 1 Tex. Civ. App.
540, 20 S. W. 766; George y. Haverhill, 110 Mass. 506; McLaughUn y. Corry,
77 Pa. St. 109; Seaboard Manurg Co. y. Woodson, 98 Ala. 378, 11 South.
733 (where plaintiff was entitled to only nominal damages). As to recovery
when earning capacity is not diminished, see Savannah, F. & W. Ry. Co.
y. Howard, 91 Ga. 99, 16 S. E. 306. As to future earning of a child, Rosen-
kranz v. Railway Co.. 108 Mo. 9, 18 S. W. 890; Bartley v. Trorllcht, 49 Mo.
App. 214. Cf. Stewart v. Ripon, 38 Wis. 584. As to mortality tables in evi-
dence, shortened life, consequent diminished earning capacity, see City of
Columbus y. Sims (Ga.) 20 S. E. 332; Atlanta & \\\ P. R. Co. v. Smith. Id.
763. Where an injury to a horse affected his steadiness and gentleness, so
that he could not th^eafter, as before, be driven by ladies, and his value
was appreciably diminished thereby, an instruction that the injury was too
remote and uncertain for consideration was properly refused. Oliphant v.
Brearley, 54 N. J. Law, 521, 24 AtL 660.
382 REMEDIES. [Ch. ->
considerable length in tracing the consequences of a wrongful act.
This is especially true as to damages originating from negligence
with fire. Thus, where fire was carelessly allowed to escape from
a locomotive, and, as the weather was dry and windy, spread con
tinuously to property 10 miles away, the damage to such property
was not so remote, nor so much the result of a mere possibility, as
to release the railroad company from liability.***
With respect to wrongs of fraud, it is said, on good authority,
that damages are limited to losses within the reasonable contempla-
tion of the wrongdoer at the time of the wrong.*** On the other
hand, however, it would seem to be more generally thought that a
cause is not remote, in wrongs of fraud, malice, wantonness, or will-
fulness, when it would be in other kinds of tortious conduct.***
The theory is that want of ppoximateness is supplied by inten-
tion.*** "The jury is not bound to weigh in golden scales how
much injury a party has sustained by a trespass." **•
i4«AtchlMon, T. & S. F. R. Co. v. Stanford, 12 Kan. 354, followed. CW-
cago, R. I. & P. Ry. Co. v. McBride, 54 Kan. 172, 37 Pac. 978.
143 Bigelow, Fraud, 614.
'** Lan^ridffe v. I^evj', 2 Mees. & W. 519; approved, 4 Mees. & W. 337;
Lumley v. Gye, 2 El. & Bl. 216, 22 Law J. Q. B. 463; JefCersonvme, ^I. &
I. R. Co. V. Riley, 39 Ind. 568; Suth. Dam. 71; Bigelow, Torts, 313, note 4;
5 Am. & Bng. Enc. Law, 11, and cases cited; Morgan v. Curley, 142 Mass.
107, 7 N. E. 726; Smith v. Goodman, 75 Ga. 108; West v. Forrest, 22 Mo.
341; Hnwes v. Knowles, 114 Mass. 519; Bish. Noncont Law, §§ 16-142; Day
V. Woodworth. 13 How. (U. S.) 363: Drake v. Klely, 93 Pa. St. 495; Carter
V. Louisville, N. A. & C. R. Co., 98 Ind. 555; Sauter v. New York Cent &
H. R. R. Co., 66 N. Y. 50; Brown v. Chicago, M. & St. P. Ry. Co., 54 Wis.
342, 11 N. W. 356, 911. Sb, In libel and slander, Gathercole v. Mlall, 15 Mees.
&, W. 318 (per Pollock, B.). Cf. Parkes v. Prescott, L. R. 4 Exch. 169-177.
And see Chamberlain v. Boyd, 11 Q. B. Div. 407.
148 Clerk & L. Torts, 97, citing Cattle v. Stockton Water Works, L. R. 10
Q. B. 453. But see Chamberlain v. Boyd, 11 Q. B. Div. 407.
146 Gillard v. Bilttan, 8 Mees. & W. 575.
Ch. 5] DAMAGES. 888
132. With respect to questions of pleading, damages are
divided into two classes :
(a) Oeneral and
(b) Special.
133. Oeneral damages are such as are ordinarily and com-
monly the consequence of the conduct complained of*
134. Special damages are such as are the natural, but not
the necessary, consequence of the conduct com-
plained of, and arise from the peculiar circumstances
of the case. The term is, however, currently used
in two senses : •
(a) Its technical sense, as meaning particularized damage,
as distinguished from general damage ; and
(b) As meaning such special injury as will enable plain*
tiff to recover when damages are not presumed.
Whai are General Damages.
General damages are such as the law implies to have accrued
from the wrong complained of.**^ Or, more accurately, general
damages are such as are ordinarily and commonly the conse-
quences of the conduct complained of.*** Thus, where a person
collided with another's sleigh, the expenses involved in remedying
the injuries so caused to the latter person were general damages.***
(leneral damages may be direct, as where the ordinary and imme-
i«7 Chit. PI. (10th Am. Ed.) 396, 515; 2 Sedg. Dam. (7th Ed.) 606; 1 Sut6.
Dam. 163; Dumont v. Smith, 4 Deiiio (N. Y.) 319.
148 Swayne, J., in Roberts y. Graham, 6 Wall. (U. S.) 57S. The phrase,
"The law will presume damages," is ambiguous. It sometimes means that
the law presumes that damages do flow from wrongful conduct (as in cases
of invasion of a simple or absolute right); but it ma}' also mean what dam-
ages flow from given Trcngful conduct (although the conduct be not action*
able per se). What is meant by saying general damages are sach as the
law presumes to follow (i. e. general damages) would be clearly put by saying
that such damage inevitably follows, as pain from a wound (whether caused
by negligence or assault and battery). But "inevitable" is too strong a word,
and too much limits the scope of general damage. It is better to say that
general damages are such as naturally foUow in the ordinary course of
events.
i4» Parker v. Burgess, 61 Yt 442, 24 Atl. 743; Hutchinson v. Granger, IS
384 BEMEDIiS. [Ch. 5
diate consequences of a trespass are recovered; "• or they may be
indirect, as where the cause of action depends upon proof of conse-
quential damages."^
What are Special Damages.
But where damages, though the natural consequences of the act
complained of, are not a necessary result of it, they are teiined
^'special damages." "* That is, damages which can be particular-
ized.*"' Here the damage may be derived from the peculiar char-
acter, circumstance, or condition of the person wronged, or also of
the wrongdoer. Thus, the cost of procuring a new wooden leg, in
consequence of injury to one by another's actionable wrong, is
special damage."* So, knowledge of one that an article which
he converts has a peculiar value to the owner, may entitle the lat-
ter to special damage.**** Special damages may be direct Thus,
Yt 386. Plaintiff, in an action for damages sustained while riding a bicycle,
by a collision with a biifi:gj', was not entitled to show what he paid out for
doctor bills, medicine, and for repairs to his bicycle, without showing the
value of each article. Schimpf v. Sllter, 64 Hun, 403, 19 N. Y. Supp. 644.
150 Denver & R. G. Ry. v. Harris, 122 U. S. 597-008, 7 Sup. Ct. 1286 (loss of
power to procreate, as the proximate result of a wound); Wade v. Leroy,
20 How. 34-44.
151 Smith V. Railway Co.. 30 Minn. 169, 14 N. W. 797.
152 2 Greenl. Ev. | 254; Chamberlain v. Porter, 9 Minn. 200 (Gil. 244).
168 Pig. Torts, 150.
15* North Chicago St. Ry. Co. v. Cotton, 41 111. App. 311. In an action
against a railroad company in trespass for laying tracks in front of plaintiff's
lot, the law does not presume that plaintiff has a family, a house on the lot
that the said house is plastered and papered, and that said plastering and
painting, etc., were injured, or that more time and attention to chUdren wei*e
required. This is special damage, and must be so pleaded. Spencer v. Rail-
way Co., 21 Minn. 302. Damage to plaintiff's well from an overflow of de-
fendant's privy is special. Solms v. Idas, 16 Abb. Prac. 311. So is loss of
breeding capacity of a mare. Stevenson v. Smith, 28 Cal. 103; Shaw v. Hoff-
man, 21 Mich. 151; Patten v. Libbey, 32 Me. 378. And, generally, see Adams
V. Gardner, 78 111. 568; Chicago, B. & Q. Ry. Co. v. Hale, 83 lU. 360; Chicago
V. O'Brenan, 65 111. 160.
155 Post, p. 737, "Trover and Conversion." See Bodl^ v. Reynolds, L. B.
8 Q. B. 779, explaining France v. Gaudet, L. R. 6 Q. B. 199. In an action by
a husband for the alienation of his wife's affection, that he contracted
venereal disease as the result of his wife's wrong is special damage. Dow-
dell V. King, 97 Ala. 635, 12 South. 405.
Ch. 5] DAMAGES. 885
in trespass for killing a mare, the value of the mare would hv
direct, general damage, but the value of an unweaned colt, killed
through death of mare, would be special.^**' Special damages may
be consequential, as in a nuisance *" or negligence."* So, in manj
cases of slander, the only ground of recovery is special damage. ^'^^
But special damages can be recovered only when they are proxir
mate,^*** not when they are remote.^'^
The term ^^special damage," as commonly employed, is ambigu-
ous.^'* It may be used in the sense just considered, viz. as tech-
nical, particularized damage. But it is also applied distinctively
to the damage which must be proved in order to make out a cause
of action on the part of the person claiming that a tort has been
committed against him. In many such cases it is said that thi^
party plaintiff must prove "special damage." (Conspicuously in
nuisance; for example, if the wrong be a public one, then no pri-
vate individual can recover unless he can show that he has suf-
fered some peculiar individual harm, as distinguished from the
community in general.**" The damage a sufferer from a failure to
i8«Teagarden v. Hetfleld, 11 Ind. 522. So, in trover, supra. Moon v.
Raphael, 2 Blng. N. 0. 310; Sedg. Dam. 475, "Trover."
iBTAnte, c. 1.
188 Ante, c. 1.
IB* Post, p. 486, "Slander."
i«« Ashley v. Harrison, 1 Esp. 48; Vicars v..Wllcocks, 8 East. 1.
i«i Moore v. Adam, 2 Chit 198; Myer v. King (Miss.) 16 South. 245.
162 Pig. Torts, 150.
163 This Is, Indeed, only a branch of the general proposition that, where
the cause of action arises from a breach of pnbUc duty, plaintiff can recover
only when he suffers a special injury particular to himself. Such duty.
In the absence of such special Injury, Is owned by all to all. O. W. Holmes^
Jr., 7 Am. Law Rev. 652. In many of such cases, the wrong Is also Indict^
able, and "where an Indictment may be maintained, there is no remedy by
action without proof of individual damage.*' But this does not apply wher^
the Injury complained of Is not one affecting the public generally, but only
a i>artlc]ilar class or section of persons. Harrop v. Hirst, L. R. 4 Exch. 43.
And see Mary's Gasei, ^ Coke, 113a. -The la\r abhors multipHclty of ^sult8 for
nominal damages, but not for substantial damages." Pig. Torts, 155. Accoitl^
Ingly, an Indictment is a sufficient remedy where the harm is general, but not
where the harm affects plaintiff especially. See Baxter v. Turnpike Co., 22
yt 114. . ■:.;;■.■ ■;
LAW OP TORTS— 25
386 KEMKDIES. [Ch.
c
K,
repair a highway must show, in order to recover, is "special." Mere
inconvenience or delay of business is not sufficient special injury.
In this sense, "special damage'' may be either particularized (i. e.
technical special damage) or general.^*^ For example, if one man
publish libelous words concerning another, which are actionable
in themselves (i. e. from which the law presumes damage) the lat-
ter can recover general damages without proof of actual loss; ^*'
but he can recover for consequent defeat in an election (if at all)^®*
only on due allegation and proof, in detail, of such particularized
damage.**' But suppose the words are not actionable in theui-
i«* Hartley v. Herring, 8 Term R. 130; Iveson v. Moore, 1 Ld. Raym. 48G.
But of. Westwood v. Cowne, 1 Starkie, 172.
i«5 Post, p. 48c;, "Libel and Slander."
i««So to charge -that a candidate was bribed In a former contest with
another person to give up the contest, is not actionable, as charging an in-
dictable offense, or as spoken in the way of the candidate's office or busicess;
nor would an allegation of special damage— 1. e. that he had been thereby
defeated, lost the emoluments of the office, and been brought into bad
repute— render it such, as said damage is too remote and speculative. Field
V. Oolson, 93 Ky. 347, 20 S. W. 264.
leT Holston y. Boyle, 46 Minn. 432, 49 N. W. 203. So a charge of unchas-
tlty on the part of a woman at common law was not actionable, unless special
injury (as loss of marriage) resulted. Accordingly, such peculiar loss must
have been specially pleaded. Newell, Defam. 779. However, in Burt v.
MoBain, 29 Mich. 260, the publication imputed to the plaintiff a want of
chastity. The plaintiff was permitted to show that, because of the pub-
lication, she was excluded from society, and was affected in mind and health.
This was held not to be error, although the declaration did not claim special
damages. The court say: "These results are the natural, and we might say the
inevitable, results, of the slander of a virtuous young woman, and they might
be shown without setting them out in the declaration. It is to be borne
in mind that our statute makes the imputation of a want of chastity action-
able per se, so that the necessity for the averment of special damage in
order to show a cause of action is not requisite here, as it otherwise would
be; and some decisions, to which we were referred, which were made in
states where no such statute exists, are for this reason not applicable."
"The rule there laid down is that, under the declaration, which set out a
libel which is actionable per se, it is necessary, in order to introduce evidence
of so-called special damages, to show that the results which naturally flow
upon the publication did in fact appear. But, in an action for such libel,
testimony that plaintiff's associates ridiculed him, and that he left his em-
ployment temporarily in consequence of it, is not admissible unless such
Ch. 5] DAMAGES. 387
selves, but become so only on proof of damage (i. e. special injury);
then, also, the damage may be general or special. Thus, in Ashley
V. Harrison* •• where a libel led a performer on the stage to refuse
to act, her employer, if he could recover at all, could recover only
because of injurious consequences. ^ It was held in that case that
the plaintiff could show diminished receipts of the house as gen-
eral damages, but not that particular individuals had given up
their boxes, because such damages were special (i. e. technically),
and had not been specially laid in the declaration.* ••
To avoid this ambiguity, various terms have been suggested. Tt
dBLmageB are averred in the declaration; since they are not within the
necessary eonitequences of the publication, and are therefore special, and not
general, damages." Montgomery, J., in Hatt v. Evening News Ass'n, 94
Mich. 114, 53 N. W. »52; Id., 94 Mich. 119, 54 N. W. 766. But see 3 Suth.
Dam. § 1215 (in which the conventional rule is stated); Warner v. Clark. 45 La.
Ann. 863, 13 South. 203 (in which natural lines are followed as to slander);
Mitchell V. Bradstreet, 22 8. W. 724 (in which natural Unes are followed in
libel, especially as to loss of business); Daniel v. New York News Co., 67
Hun, 649, 21 N. Y. Supp. 862; Bradstreet v. GiU, 72 Tex. 117, 9 S. W. 753;
Brown v. Durham, 3 Tex. Civ. App. 244, 22 S. W. 868. In Radcliff v. Evans
[1892] 2 Q. B. 524, an action was brought for intentionally publishing a mali-
cious falsehood concerning plaintiff^s business, not actionable as a personal
libel, nor defamatory In itself. Evidence that a general loss of business
had been the direct and natural consequences of such falsehood was held
to be admissible, and sufficient, if uncontradicted, to maintain the action.
So a plaintiff, in an action for libel, who alleges that he has suffered special
and general damages, as the result of certain letters sent out by defendants,
may question the parties who received the letters, or heard their contents
discussed, as to the effect thereby produced upon them, where such evidence
is offered, not to prove the meaning of the word used, or the innuendo
charged, but the substantive fact of damage sustained. 29 Mich. 260.
i«8 1 Esp. 48; Evans v. Harries, 1 Hurl. & N. 251. But see KeUy, C. B.,
in Riding v. Smith, 1 Exch. Div. 91. Cf. Westwood v. Cowne, 1 Starkie, 172.
i«o KeUy, C. B., in Hnrrop v. Hirst, L. R. 4 Exch. 43: "The question is
whether, under these circumstances, an action lies for the infringement ot
the (water) right without— I wlU not say special, but— without individual and
particular damage sustained by the plaintiff." Damages: Distinction be-
tween special damages, as counterpart of general damages, and as meaning
special injury, see Bowen, L. J., in Radcliff v. Evans, L. R. 2 Q. B. 524; Law
V. Harwood, Gro. Car. 140; Tasbrough v. Day, Cro. Jac. 484. "Special or
peculiar" damage, e. g. complement to nuisance; Mitchell, J., in Aldrich v.
Wetmore, 52 Minn. 168, 53 N. W. 1072.
388 REMEDIES. [Ch. 5
would seem that the phrase "special injury" would best meet the
requirements. * ^ •
136. Oeneral damasres may be recovered under the ad
damnum, or general allegation of damages, but
special damages must be specially pleaded.
Questions must always arise under the principle that general dam-
ages can be recovered under the ad damnum, and special damages
must be pleaded specially. The reason of this rule is that special
damage, not being implied in law from the act, should be so pleaded,
in order to avoid surprise to the defendant.^'*
General damages need not be specially pleaded.^^* Thus, mental
sufferings, the natural consequences of personal injuries, are not
special damages, and need not be pleaded nor specially proved.*^*
170 Pig. Torts, 153.
171 Sanford v. Peck, 63 CJomk 486, 27 Ati. 1057; Alabama G. S. R, Oo. v.
Tapia, ^ Ala. 22G, 10 South. 236; 2 Sedg. Dam. (8th Ed.) 8 1261. And see
1 Chit. PI. 236; Rice v. Coolldge, 121 Masa 3«3; Hooper v. Armstrong. 69
Ala. 343; Pollock v. Oantt, Id. 373. The truth would seem to be that the
definition of ''special damages" and this rule as to pleading is a clear case
of reas(Hiing in a circle. What are special damages? Such as must be
specially pleaded. What damages must be specially pleaded? Special dam-
ages. To avoid this, tests to distinguish special from general daniagea are
adopted (ante, pp. 384, 385), which are objectionable not so much in formula, per-
haps, as in application. Enough cases are cited in this book, it would seem
reasonable to say, to satisfy that the coiuts have followed no uniform, con-
sistent, or intelligible rule. One thing, however, seems reasonably clear,—
the pleader falls to plead specially at his peril. And there is good reason
for this. If there Is anything a complainant can be said to know, and a
wrongdoer not to know, it is the extent of the harm the lattw has caused the
former. To insist that the sulferer should Inform the tort feasor fully as to
his damage Is reasonable and fair to both parties. Conversely, it will often
happen that knowledge as to many facts constituting the wrong charged lies
peculiarly within the wrongdoer's knowledge; so that it is alike unfair to an
innocent sufferer, and useless to the defendant, to set forth such facts at
laigth. Accordingly, negligence may be charged generally. It is not neces-
sary for the party injured to specify the specific negligence or omission. It
must be admitted, however, that the courts baTc not adhered to this simple
and natural view.
172 But see Omaha Coal, Coke & Lime Co. v. Fay, 37 Neb. 68, 55 N. W. 211.
17 3 McCoy V. Milwaukee St Ry. Co., 88 Wis. 56, 59 N. W. 453; Caldwell
Ch. 5] DAMA'UKS. 3S9
This is also true of future paius of mind and body, and other reason-
ably certain future results of permanent injury.*^* So, loss of earn-
ings is commonly,*^' but not universally,^^* part of the general dam-
ages to an injured person, and may be proved under the general
allegation. So, where one sought to recover damages for the wrong-
ful overflow of water on his land, of which the natural results would
be deposits of earth, clay, etc., on the land, evidence of such deposits
was properly admitted, though they were not specially pleaded.^'^
V. Railway Cto., 7 Misc. Rep. 67, 27 N. Y. Supp. 397; Texas & P. Ry. Co. v.
Curry, 64 Tex. 85; Buchanan v. Railway Co., 52 N. J. Law, 2G5, 19 AtL 254.
As to humiliation, loss of reputation and social position resulting from an as-
sault, KeUey v. Kelley, 8 Ind. App. 606, 34 N. £. 1009. So, matter of aggra-
vation need not be specially pleaded (post, p. 400, "Exemplary Damages**),
as in malicious prosecution. Jackson v. Bell (S. D.) 58 N. W. 671.
174 Gerdes v. Foundry Co., 124 Mo. 347, 25 S. W. 557.
1T5 Flanagan v. Railway Co., 83 Iowa, 639, 50 N. W. 60; Gurley v. Mis-
souri Pac. Ry. Co., 122 Moi 141, 26 S. W. 953; Doherty t. Lord, 8 Misc. Rep.
227, 28 N. Y. Supp. 720.
176 In an action for personal injuries, where the only allegation in the
petition which has any relation whatever to loss of earnings Is that plaintiff
"has been permanently disabled from labor," plaintiff cannot testify as to
what his earnings were before he sustained the injuries. Coontz v. Missouri
Pac. Ry. Co., 115 Mo. 669, 22 S. W. 572. Cf. Doherty r. Lord, 8 Misc. Rep.
227, 28 N. Y. Supp. 720; Tomlinson v. Town, 43 Conn. 562; Baldwin t. Rail-
road Co., 4 Gray, 333; Dickinson v. Boyle, 17 Pick. 78; Boyden v. Burke,
14 How. 575. It has, moreover, been distinctly held that loss of earnings will
not be presumed by the law to be a necessary consequence of injury, but
must be specially pleaded. Mellor v. Railroad Co., 105 Mo. 455, 16 S.
W. 849; Slaughter v. Railroad Co., 116 Mo. 269, 23 S. W. 760; MeUwitz
V. Manhattan Ry. Co., 62 Hun, 622, 17 N. Y. Supp. 112; Wabash West-
em Ry. Co. y. Friedman (111.) 30 N. E. 353. As to special allegation of
loss of earnings, see Gerdes v. Foundry Co., 124 Mo. 347, 25 S. W. 557;
Galveston, H. & S. A. R. Co. v. Templeton (Tex. Civ. App.) 25 S. W. 135;
Campbell v. Wing, 5 Tex. Civ. App. 431, 24 S. W. 300; Miller v. Manhattan
Hy. Co., 73 Hun, 512, 26 N. Y. Supp. 1G2. But proof of loss of earnings has
been held to be admissible under an allegation in the petition that plaintiff has
been deprived of the means of support. Smith v, Chicago & A. R. Co., 119
Mo. 246, 23 S. W. 784. And see Bartley v. Trorlicht, 49 Mo. App. 214 (in-
fants). As to distinction between earning capacity and profit, see Malone v.
Pittsburgh & L. E. R. Co., 152 Pa. St. 390, 25 Atl. 638; Huchel v. Same, 152
Pa. St. 394, 25 Atl. 639.
17T Hunt V. Iowa Cent. R. Co., 86 Iowa, 15, 52 N. W. 668.
390 KEMKDIES. [Ch. 5
In pleading such general damages^ the plaintiff may safely rely npon
the common-law ad damnum, unless a motion to correct the plead-
ing be made before trial.*^' Thus, without specific allegation, the
plaintiff can show that he had fits as a result of an assault^^* On
the other hand, if he choose to specify the injuries of which he conot-
plains, he is confined in proof to matter relevant to allegations.
Thus, it is not necessary, in an action for nuisance, to detail all
the injury which results therefrom; but, if it is attempted to par-
ticularize the resulting injuries, all that are designed to be proved
should be specially pleaded.^*® So, under an allegation in the dec-
laration that the plaintiff sustained injuries to her spine, and was
otherwise bruised, wounded, and injured, she could not recover dam-
ages for injury to her breast.^*^ So, evidence that one's power of
sexuar intercourse was impaired by the injury is not admissible un-
der allegations that he was severely injured in the back, bowels, hips,
and legs, and other parts and members of the body.*** But under
an averment that he was greatly injured in his limbs and abdomen,
as well as shocked in his nervous system, evidence that since his
injury he had a weakness and pain in his back, similar to pains suf-
fered prior to the injury, but much aggravated, requiring the con-
stant use of porous plasters, is admissible.*** Medicines, expense of
medical attendance, and the like may be generally alleged.^ ^*
178 Parker v. Burgess, 64 Vt. 442, 24 Atl. 743; Rlchter v. Meyer, 5 Ind
App. 33. 31 N. E. 582; Oliver v. Perkins, 92 Mich. 304, 52 N. W. 009; Gray
V. BuUard, 22 Minn. 278.
17 9 Tyson v. Booth, 100 Mass. 258.
ifiopinney v. Berry, 61 Mo. 359. In Kalembach v. Michigan Cent. It.
Co., 87 Mich. 509, 49 N. W. 1082, It was held that an allegation that plaintiff
was greatly and permanently injured, suffered great physical and mental
paiu, and became sick, sore, and languished, is not sufficiently specific to
admit evidence of permanent Injury.
181 Fuller V. City of Jackson, 92 Mich. 197, 52 N. W. 1075.
182 Campbell v. Cook (Tex. Civ. App.) 24 S. W. 977, reversed in 86 Tex.
630, 2G S. W. 486; Carron v. Clark, 14 Mont. 301, 36 Pac. 178 (tresi>as8).
Cf. Babcock v. Railway Co., 36 Minn. 147, 30 N. W. 449.
188 City of Ft Wayne v. Duryee (Ind. App.) 37 N. E. 299. And see Wabash
Ry. Co. V. Savage, 110 Ind. 157, 9 N. E. 85; Gnrley v. Missouri Pac. Ry. Co..
122 Mo. 141, 26 S. W. 953; La Duke v. Exeter Tp., 97 Mich. 450, 56 N. W.
851; Finn v. City of Adrian, 93 Mich. 504, 53 N. W. 614.
184 Sheehan v. Edgar, 58 N. Y. 631; Folson v. Underbill, 36 Vt 580; Lind-
Ch. 5] DAMAGES. 891
Special damages should be specially pleaded.'** Thus, special
damage for loss of profits on merchandise by wrongful attachment,
not alleged in the petition, cannot be recoTered.*** So, in personal
injury cases ^*^ loss of mental powers cannot be proved if there is
no claim to that effect in the complaint.'** In trespass de bonis
asportatis, the law will not imply as damage the cost of recovering
possession of the property. This must be specially pleaded."* Ev-
holm V. City of St. Paul, 19 Minn. 245 (Gil. 204); Allis v. Day, 14 Minn. 51G
(Gil. 388); Bast v. Leonard, 15 Minn. 304 (GiL 235); Ck>Uin8 v. Dodge, 21
Minn. 503, 35 N. W. 368; Goodno v. Oshkosh, 'JS Wis. 300. Gf. Cbicago 2:
A. K. Co. V. WUson, 63 111. 167; Klein v. Thompson, 19 Ohio St. 509; Fox
y. Railway Ck>., 86 Iowa, 368, 53 N. W. 259. The allegation that plaintiff
was forced and obliged to "pay, lay out, and expend,'* is equivalent to al-
leging that she did pay, lay out, and expend. Parker y. Burgess, G4 Vt. 442,
24 Atl. 743. Such expense must be ^cially proved. Mental sufferings are
the natural consequences of personal injuries, and are not special d mag.s,
and -need not be pleaded nor specially proved. McCk>y v^ Milwaukee St
By. Co., 88 Wis. 56, 59 N. W. 453. Though expenses of medical att ni!a cj
are not specially pleaded as damages, the jury may consider such expen: ea
as an element of damages when the complaint alleges that the injuries
consisted of broken hips and ribs. Evansville & T. H. R. Co. v. HoUomb,
9 Ind. App. 198, 36 N. E. 39. And the proof need not show that pl.iiutli^
actually did pay doctor's, nurse's, drug bills and the like. It is enough thnt
they were incurred. Luusford v. Walker, 93 Ala. 36, 8 South. 3^0; Keyuokl*
v. City of Niagara Falls, 30 N. Y. Supp. 950; City of Friend v. Iigersoli, 3J
Neb. 717, 58 N. W. 281. But see Hunter v. City of Mexico, 49 M ). App. 17;
Little Rock & M. R. Co. v. Barry, 58 Ark. 198, 23 S. W. 1007; Hewitt v.
Eisenbart, 36 Neb. 794, 55 N. W. 252; Cousins v. Railway Co., 96 Mich. 3Sa,
56 N. W. 14. Expenses for medical attendance are some.imes required to
be specially pleaded. Houston City St. R. Co. v. Richart (Tex. Civ. App.)
27 S. W. 920.
i«o Hitchcock v. TumbuU, 44 Minn. 475, 47 N. W. 153; Bradley v. Borin,
53 Kan. 628, 36 Pac. 977. And see Homan v. Franklin Co. (Iowa) 57 N. W.
703; Squier v. Gould, 14 Wend. 159. Further as to case, see Bogert v.
Burkhalter, 2 Barb. 525. But see Alabama & V. Ry. Co. v. Hanes. 61) Miss.
160, 13 South. 246. But not in justice court. Glenville v. Railroad Co., 51
Mo. App. 629. As to special pleading of damages in land flooding cases,
Gentr>' v. Railroad Co., 38 S. C. 284, 10 S. E. 803.
180 Chit. PL 399. Cf. Bloomington v. Chamberlain, 104 111. 2:8.
187 As to measure of damages in personal injury cases, see Baker t.
Pennsylvania Co., 12 Lawy. Rep. Ann. 696 (Pa. Sup.) 21 Atl. 979.
188 Comaskey v. Railway Co.. 3 N. D. 276, 55 N. W. 732.
189 Lazard v. Merchants' & Miners' Transp. Co., 78 Md. 1, 26 Atl. 897; Gul',
392 RLMEDIES. [Ch. 5
idence of special damage arising from loss of reputation, credit, or
business cannot be given unless specially alleged.* •• In false im-
prisonment, that plaintiff suffered in health,*** or from want of
food,**' while in prison, is special damage, and must be specially
pleaded.
136. Damagres may be desired to —
(a) Afford more than mere actual compensation or ex-
emplary damages; or
(b) Afford less than the wrongdoer wotild ordinarily be
entitled to recover, or mitigated damages.
Exemplary Damages.
Exemplary damages are punitive or vindictive damages inflicted
in view of the grossness of the wlong done, rather than as a meas-
ure of compensation. They are "smart money" added to proper
compensation.*** They are allowed whenever a case of tort shows
wanton invasion of another's right, or any circumstance of oppres-
sion, outrage, or insult.*** In many cases the motive is the mate-
C. & S. P. Ry. Co. V. Jones, 1 T4x, Civ. App. 372, 21 S. W. 145. Cf. Parker v.
Lake Shore & M. S. Ry. Co., 93 Mich. 607, 53 N. W. 831. And see Abbott v.
Heath, 84 Wis. 314, 54 N. W. 574 (conversion).
180 DonneU v. Jones, 13 Ala. 490; Row^nd v. Bellinger, 3 Strobh. (S. C.) 373.
191 Pettit V. Addington, Peake, 87.
1B2 Lowden v. Goodrick, Peake, 46. And see Hoi turn v. Lotum, 6 Car.
& P. 726; Westwood v. Cowne, 1 Starkle, 172.
188 Day V. Woodworth, 13 How. 363.
10* Amer v. Longstreth, 10 Pa. St. 145; Abbott, J., In Sears v. Lyons, 2
Starkle, 317; Huxley v. Berg, 1 Starkle, 98; Seeman v. Feeney, 19 Minn. 79
(GU. .^4); Cameron v. Bryan (Iowa) 56 N. W. 434 (vicious dog); Texarkana
Gas & Electric Light Co. v. On*, 59 Ark. 215, 27 S. W. 66 Qive electric wire);
Paddock v. Somes, 51 Mo. App. 320 (continued discharge of sewage); Hane-
wacker v. Ferman, 47 lU. App. 17 (sale of liquor to habitual drunkard); Steel
V. Metcalf, 4 Tex. Civ. App. 313, 23 S. W. 474 (wrongful levy). And see State
V. Jungling, 116 Mo. 162, 22 S. W. 688 (Id.); Trammell v. Ramage, 97 Ala.
666, 11 South. 916 (Id.); Eisenhart v. Ordean, 3 Colo. App. 162, 32 Pac. 495
(Id.); Cronfelt v. Arrol, 50 Minn. 327, 52 N. W. 857 (Id.); Com. v. Magnolia,
V. L. & I. Co., 163 Pa. St. 99, 29 Atl. 793 (wrongful attachment); Frank v.
Tatum (Tex. Civ. App.) 26 S. W. 900 (conversion of goods); San Antonio &
A. P. Ry. Co. V. Kniffln, 4 Tex. Civ. App. 484, 23 S. W. 457 (Id.); Callahan v.
Ingram, 122 Mo. 355,. 26 S. W. 1020 (libel and slander); Fulkerson v. Murdock.
Ch. 5] DAMAGES. 393
rial element. If a pauper's hair is cut off, to '^ke down pride/'
not for the sake of cleanliness, malice is a consideration in deter-
mining the amount of damage. ^^'^ So, in an action for killing
shade trees by trimming, where it appeared that the trees were
trimmed severely, and at an improper season, and, of all those trim-
med, only those died which obstructed the defendant's view; and
there was evidence that he had asked the person doing the work
to trim them so that they would die, — ^the court properly submitted
the question of punitive damages to the jury.^** In some cases, in-
ference of evil motive follows from the nature of an act. Thus, in
Tullidge V. Wade,^"^ the defendant secured the confidence of the
plaintiff's family, and seduced his daughter under her father's roof.
It was held that damages ^^for example's sake" could be recovered.
Buch damages are allowed in cases of extreme negligence, but only
for negligence of a gpross and flagrant character, evincing reckless
disregard of human life and safety;^*' and it is error to instruct
the jury that such damages are recoverable for '^gross negligence,'^
as that term does not necessarily imply an extreme degree of neg-
ligence.^** The court determines when such damages are to be
53 Mo. App. 151 (Id.); Cooper v. Sun Printing & PubUshing As8*n, 57 Fed.
566 (Id.). And see Bracegirdle v. Oford, 2 Maule & S. 77; Barry t. Bdmunds,
116 U. S. 550, 6 Sup. Ct. 501 (maUcious trespass); Lueck v. Heisler, 87
Wis. 644, 58 N. W. 1101 (malicious prosecution). Trespass quaere clausum
f regit: Illinois & St. L. R. & Coal Co. v. Ogle, 92 111. 353; Craig v. Cook, 28
Minn. 232, 9 N. W. 712. Of. Michaelis v. Michaelis, 43 Minn. 123, 44 N. W.
1149. Error in permitting the Jury to allow punitive damages is cured when
the yerdict awards the compensatory and punitive damages separately, and
the latter are disallowed on motion for new trial. Stone v. Chicago, St. P.,
M. & O. Ry. Co., 88 Wis. 98, 59 N. W. 457.
i«a Ford V. Skinner, 4 Car. & P. 239. In estimating the amount of punitory
damages, defendant's wealth may be considered by the jury. Spear v. Swee-
ney. 88 Wis. 545, 60 N. W. 1060.
i»« Huling V. Henderson, 161 Pa. St 553, 29 Atl. 276.
i»T 3 Wlls. 18.
!•• In Kentucky, for example, courts are generous in this matter to com-
plainants. Central Pass. Ry. Co. v. Chatterson (Ky.) 29 8. W. 18; Louisville
& N. R. Co. V. Greer (Ky.) 29 S. W. 337.
!•» Leahy v. Davis, 121 Mo. 227, 25 S. W. 941; Atchison, T. & S. F. R. Co.
V. McGinnis, 46 Kan. 109, 26 Pac. 453; Waters v. Greenleaf Johnson Lum-
ber Co., 115 N. C. 648, 20 S. E. 718. Clark, J., in PurceU v. Richmond & D.
394 REMEDIES. [Ch. 5
awarded,*®* the jury their extent, smbject to revision by the court.*^*
They are awarded alike upon conduct punishable as a crime and
conduct not so punishable.'**
The award of exemplary damages is not designed merely to com-
pensate. The jury "may'* render a verdict for such sum as seems
reasonable and proper to them in order to accomplish the following
purposes: (a) To make compensation to the plaintiff for the injury
he had sustained; (b) to deter the defendant from committing the
like crime in time to come; (c) to deter other persons from commit-
ting the same crime; (d) to punish the defendant for this crime; *••
and (e) to restrain the plaintiff from taking the law into his own hands,
and getting justice according to natural, not legal, standards. The
award of more than compensation, it is urged in justification, rests
sufficiently on either, and, in fact, on both, expediency and natural
justice. If, for example, the actual loss of service of wife or
daughter were the limit of the father's or husband's recovery for an
injury to either, the remedy of the law would be dangerously inade-
quate, and exceedingly unjust. This would also be true of libel
and slander, assault and battery, aggravated trespass, and general-
ly of wrongs of fraud and malice and violence.
On the other hand, it is argued that the doctrine is not sustained
on careful examination of authorities; that, while the jury may be
allowed to assess liberally in cases of aggravation, they must not
punish, else there will be either a double recovery, or, where tort
is also punished criminally, there will be a double punishment,
whereas the law allows no man to be twice vexed for the same
cause; and that the true rule is to keep criminal and civil practice
separate.***
R. Co., 108 N. C. 414, V2 S. E. 954-956 (disapproved in Hansley v. JamesyUle
& W. R. Co., 115 N. C. 602, 20 S. E. 528).
200 HeU V. Glanding, 42 Pa. St. 493; Murphy v. New York, etc., Ry. Co.,
29 Conn. 496; Chiles v. Drake, 2 Mete. (Ky.) 146; Chicago v. Martin, 49 lU.
241; Texas & Pacific R. Co. v. Yolk, 151 U. S. 73. 14 Sup. Ct. 239.
201 Post, p. 400, ''Damages Disproportionate in Award."
202 Boetcher v. Staples, 27 Minn. 308, 7 N. W. 263; Carli v. Union Depot,
etc., Co., 32 Minn. 101. 20 N. W. 89.
203 Williams, J., in Cornelius v. Hambay, 150 Pa. St. 359-368, 24 Atl. 515
<in an action for criminal conversation by defendant with plaintiff's wife).
204 Smith V. Pittsburg, Ft. W. & C. R. Co., 23 Ohio St. 10; Stovall v. Smith.
Ch. 5] DANfAGES. 895
And, finally, it is contended that the true solution of the dit&cultj
is to be found in allowing, not a civil punishment, but an enlarged
and generous statement of ordinary damages, — aggravated as dis-
tinguished from mitigated damages,'®* or consolatory as distin-
guished from penal.*®*
Same — Who Liable,
A master may be held liable for the torts of his servant commit-
ted within the course of his employment, although such conduct
be not previously authorized or subsequently ratified, provided the
servant violate a duty which the master owed to the plaintiff, in
such a way as to justify the award of such damages against the
servant**^ Some difficulty has been experienced in extending this
liability to the principal, as distinguished from a master, for the
unauthorized and unratified tort of the agent,*®* as distinguished
from a servant; but unnecessarily, except as the particular cir-
4 B. Mon, (Ky.) 378; Albrecht v. Walker, 73 111. 69; Murphy v. Hobbs, 7
Colo. 541, 5 Pac. 119; Fay v. Parker, 53 N. H. 342; Stowe v. Heywoocl, 7
Allen, 118; note 2, Greenl. Ev. S 253. And see 1 Sutb. Dam. (2d Ed.) p. 835 et
eeq. But see Corwin v. Walton, 18 Mo. 71; Roberts v. Mason, 10 Ohio St.
277; KlmbaU v. Holmes, 60 N. H. 163.
205 Hendrickson v. Kingsburry, 21 Iowa, 379; Lucas v. Flinn, 35 Iowa, 9;
Wetherbee v. Green, 22 Mich. 310; Tenhopen v. Walker, 96 Mich. 236, 55
N. W. 657-658.
2o« Clerk & L. Torts, 94.
207 Kopg V. Boston & L. R. Corp., 148 Mass. 513-518, 20 N. B. 109; Hawes
V. Knowles, 114 Mass. 518; Gulf, C. & S. F. Ry. Co. v. Reed, 80 Tex. 362, 15
S. W. 1105 (ratification); 1 Sedg. Dam. § 380, and note; Parsons v. Winchell,
5 Cush. 592; Atlantic & G. W. Ry. Co. v. Dunn, 19 Ohio St. 162; Hopkins v.
Atlantic & St. L. R. Co., 36 N. H. 9; New Orleans, St. L. & C. R. Co. v. Burke,
53 Miss. 200; Perkins v. M., K. & T. R., 55 Mo. 201; Singer Manufg Co. v.
Holdfodt, 86 111. 455; Bass v. Chicago & N. W. Ry. Co., 30 Wis. 450; SuUivan
V. Philadelphia & Reading R. Co., 30 Pa. St. 324. Conceding that a passenger
agent selling tickets both for i*ailroad fare and for sleeping car berths acted
as the agent of the sleeping car company, the latter would not be liable for
punitive damages because of his refusal to sell a sleeping car berth to a
passenger, on the ground that the latter had not a first-class ticket, unless
the passenger was treated Insultingly or with malice. Lemon v. Pullman
Palace Car Co. (C. C.) 52 Fed. 262.
308 Hagan v. Providence & W. R. Co., 3 R. I. 88; Lake Shore & M. S. Ry.
Co. V. Prentice, 147 U. S. 101, 13 Sup. Ct. 261; Staples v. Schmid (R. I.) 2G Atl
193; Evlston v. Cramer, 57 Wis. 570, 15 N. W. 760.
396 REMEDIES. [Ch. 5^.
cnmstances under consideration may have justified.*** Punitive
damages are now frequently awarded against private corpora-
tions.*^* Thus, they may be awarded against such a corporation for^
violent seizure of a railroad.*" It is commonly,*^* but not univer-
sally,*^' held that a railroad company is liable for exemplary dam-
200 Rucker t. Smoke, 37 S. 0. 377, 16 S. B. 40; ante, p. 230, "Master an<t
Servant."
aio Goddard v. Grand Trunk Ry. Co., 57 Me. 202-223; Haines v. Schultz,.
50 N. J. Law, 481, 14 Ati, 488; Detroit Dally Post Co. v. McArthur, 16 Mich.
447. And see cases collected In considerable number In 5 Am. & Eng. Enc^
Law, at page 23. However, In Its late remarkable decision (Lake Shore & M.
S. R, Co. V. Prentice, 147 U. S. 101, 13 Sup. Ct. 261), the supreme court or
the United States Is said, in 29 Am. Law Rev. 268, to have held, "In sub-
stance, that exemplary damages cannot be given against a corporation, ex-
cept where the corporation has authorized the doing of the Injurious act;
meaning, we suppose (for the court does not explain Itself on this point),
where the board of directors have authorized the doing of It" This was the-
case of wrongful arrest of passenger by conductor. The true view of that
case would seem, however, to be that It Is "not authority for the position
that exemplary damages cannot be recovered against a corporation for the-
reckless, willful, and malicious act of its agent; the opinion of the supreme
court expressly pointing out that there was no proof that the conductor was
known to the defendant to be an unsuitable person. In any respect'* But
such damages are awarded by the federal courts, for example, in libel cases.
Press Pub. Co. v. McDonald, 11 C. C. A. 155, 63 Fed. 238; Hallam v. Post
Pub. Co., 55 Fed. 456; Post Pub. Co. v. Hallam, 8 C. O. A. 20i, 59 Fed. 530.
And see Railroad Co. v. Quigley, 21 How. 202; Cooper v. Sun Printing & Pub-
lishing Ass'n, 57 Fed. 566; Morning Journal Ass'n v. Rutherford, 2 C. C. A.
354, 51 Fed. 513.
211 Denver & R. G. Ry. v. Harris, 122 U. S. 597, 7 Sup. Ct 1286.
212 Lucas V. Michigan Cent R. Co., 98 Mich. 1, 56 N. W. 1039; Richmond"
& D. R. Co. V. Greenwood, 99 Ala. 501, 14 South. 495. See, also, Kansas-
City, M. & B. R. Co. V. Phillips, 98 Ala. 159, 13 South. 65; Kansas Cltj-, M.
& B. R. Co. V. Sanders, 98 Ala. 293, 13 South. 57; Chicago, B. & Q. Ry. Co.
V. Bryan, 90 111. 126. So for putting off passenger at wrong place. New^
Orleans Ry. v. Hurst, 36 Miss. 660 (Lake Shore, etc., Ry. Co. v. Prentice,.
147 U. S. 101, 13 Sup. Ct 261, followed); Pittsburgh, C, C. & St L. Ry. Co.
V. Russ, 6 C. C. A. 597, 57 Fed. 822; Muckle v. Rochester R. Co., 79 Hun, 32,.
29 N. Y. Supp. 732.
218 Pittsburgh, C, C. & St L. Ry. Co. v. Russ, 6 C. C. A. 597, 57 Fed. 822.
It has been loosely said that exemplary damoges are not awarded against
corporations for injuries resulting from gross negligence of a servant Illi-
nois Cent. R. Co. v. Hammer, 72 111. 347, per Walker, C. J.
Ch. 5] DAMAGES. 397
:ages on account of the malice, wantonness, or oppression of its
-conductor in ejecting a passenger from a train, or for an assault by
liim on a passenger.'^* Indeed, ratification of a sen'ant-s wrong
may attach liability on part of a private corporation for exemplary
<lamage8.*" "The city is not a spoliator, and should not be visited
l)y vindictive damages. Where aggression and malice are absent
the damages cannot exceed compensation for the injury done. In
other words, they cannot be punitive." *^' And willful injury can
-scarcely, by any possibility, be proved as to this class of corpora-
tions.^" Such damages have, however, been allowed, in cases
which must be regarded as exceptional.*" And, in general, an
award of punitive damages against a city will not be sustained.'**
MoUler8 of Practice.
As to the function of the court and the jury, the rule is that in
an action on a tort, sounding in exemplary damages, the question
whether the plaintiff is entitled to exemplary damages may be
properly submitted to the jury, wherever the trial court thinks
there is some testimony, on the issues raised by the pleadings.'*®
But, for example, where only nominal damages are shown, exem-
plary damages cannot be recovered.'** As to pleading, it has
been held, in an action for exemplary damages, no recovery can
be had for actual damages,'" but matters of aggravation need U)
ai4 Baltimore & O. R. Co. v. Barger (Md.) 30 AtL 6C0. Ante, p. 257,
"•'Master and Servant— Course of Employment."
215 International & G. N. Ry. Co. v. Miller (Tex. Civ. App.) 28 S. W. 233,
B Am. & Enjr. Enc. Law, 24, citing, inter alia, Nashville & C. R. Co. v.
^tarnes. 0 Heisk. (Tenn.) 52; lUiDoia Cent R. Co. v. Hammer, 72 111. :U7;
Milwaukee & M. R. Co. v. Finney, 10 Wis. 388. Ante, c. 1, "Ratification by
Retention of Servant."
«!• Chicago V. Martin, 49 111. 241, per Breese, C. J.
21T Chicago V. Kelly, 69 111. 475. And see Chicago v. Langlass, 52 IlL 256;
<3hlcago V. Jones, 66 111. 349; Decatnr v. Fisher, 53 111. 407.
ai8 Whipple V. Walpole, 10 N. H. 130; Wallace v. New York, 18 How. Prac.
169; Myers v. San Francisco, 42 Cal. 215.
21 » Chicago V. Langlass. 52 111. 256, 66 HI. 361; Chicago v. Martin, 40 111.
241; Chicago v. KeUy, 69 111. 475.
220 Samuels v. Richmond & D. R. Co., 35 S. C. 493, 14 S. E. 943.
«2i Girard v. Moore, 86 Tex. 675, 26 S. W. 945.
222 Mclver, C. J., dissenting. Cobb v. Columbia & G. R. Co., 37 S. C. 194,
15 S. B. 878.
398 UEMEDIES. [Ch. 6
be pleaded.*^' The scope of evidence admissible under allegations
which would entitle the plaintiff to such damages is very wide, —
much broader than, for example, an action for mere negligence.
Thus, in the former case, the plaintiff is sometimes allowed to show
the pecuniary condition of the defendant.*** In the latter, he can-
not."'
187. Mitigated damages are the counterpart of exemplary
damages*
Circumstances which fall short of a complete justification, and
do not amount to a defense to an action, may be given in evidence
as establishing a less aggravated case against the defendant.**^
Thus, where one destroyed a picture called '^Beauty and the Beast,"
which was being exhibited by the owner, and showed in mitiga-
tion that it was a nuisance, and a scandalous libel on a gentleman
of fashion and defendant's sister, the owner of the picture was
allowed to recover only for the value of the paint and canvas, and
not for the picture as a work of art.**^
Provocation is a mitigating circumstance in libel, slander, as-
»a» 1 Suth. Dam. (2cl Ed.) S 422; Wooden-Ware Co. v. U. S., 106 U. S. 432,
1 Sup. Ct. 398; U. S. v. Baxter, 46 Fed. 347-353. Cf. Allen v. Hitch, 2
Curt. 147, Fed. Cas. No. 224; Stanfleld v. Phillips, 78 Pa. St. 73; Plumb
V. Ives, 39 Conn. 120; Thayer v. Sherlock, 4 Mich. 173; Ogden v. Glbons,
5 X. J. Law, 598; McConnell v. Kibbe, 33 111. 175; Clark v. Bardman, 42
Vt. 607.
22* Beck V. Dowell, 131 Mo. 500, 20 S. W. 209. But not in assault and
battery. Roach v. Caldbeck, 64 Vt. 593, 24 Atl. 989.
22 Q The pecuniary condition of defendant has an important bearing in de-
termining what will be an adequate punishment, as an amount which would
not be felt by a rich man might be a very gi*eat punishment to a poor man.
But whei'e compensation only, i. e. indenmity, is to be recovered, It is mani-
festly immaterial whether defendant is rich or poor.
226 Tindal, C. J., in Perkins v. Vaughan, 4 Man. & G. 989. It may not be
strictly accurate to classify mitigated damages as being deslgmed to do
less than compensate. But the award of such damages in many instances
proceeds upon the recognition of the propriety of punishing plaintifT (In a
manner) by diminishing the extent of his recovery. In effect, such damages
are not designed to compensate plaintift in the same sense that ordinary
damages are.
227 Du Bost V. Berresford, 2 Camp. 511. The ordinary view of this case is
Ch 5] DAMAGES. 399
•
Bault and battery, and similar wrongs.**" So, a criminal prosecu-
tion and conviction for an assault and battery is not a bar to the
recovery of punitive damages in a civil action for the same offenao,
but may be shown in mitigation of damages.***
A person is entitled to recover whatever damages the law al-
lows, under the circumstances of the case, without reference, ordi-
narily, to contracts or relationships with third persons, which may,
in fact, diminish or remove his actual loss. An employ^ may re-
cover from one who injures him for the resulting loss of time, even
though the employer may have continued his salary du.ing the
time so lost.
^'Damages are assessed on uniform principles, and are not to be
affected by incidental business relations," *•* The fact that a per-
son injured has received the proceeds of an accident insurance
policy is no defense to an action against the person whose negli-
gence caused the injury.***
The defendant is not allowed to avail himself of any reduction
tbat the picture, being illegal, is regarded in law as not being property at all.
The law wiU not protect one in the poBsession of that which it is illegal to
possess.
228 Quinbj V. Tribnne Co., 38 Minn. 528, 38 N. W. 623. Drinking habits
do not mitigate damage when there is no issue as to plaintiff *b capacity to
earn a livelihood. Union Pac. Ry. Co. v. Reese, 5 C. C. A. 510, 56 Fed. 288.
22» Rhodes v. Rodgers, 151 Pa. St. 634, 24 Atl. 1044. But cf. Boetcher v.
Staples, 27 Minn, 308, 7 N. W. 263. But see post, p. 413, "Statutory Dam-
ages.
230 Ohio & M. R. Co. V. Dickerson, 59 Ind. 317. But see, contra. Drink-
water V. Dinsmore, 80 N. T. 390. And see Hannibal Bridge Co. v. Schau-
bacher, 57 Mo. 582; Duke v. Missouri Pac. Ry. Co., 99 Mo. 351, 12 S. W.
630. On a reference to ascertain the damages caused by an injunction
Against the sale of an option on real estate, evidence that defendant, by a
further speculation with regard to the realty, might have reduced his loss.
Is properly excluded. O'Connor v. New York & Y. Land Imp. Co., 8 Misc.
Rep. 243, 28 N. Y. Supp. 544. On much the same principle damages for
malicious prosecution of suits for unlawful detainer cannot be set off or,
recouped in an action for rent, since such dama,?e8 do not arise out of
contract, and are not connected with the subject-matter of the suit. Dietrich
V. Ely, 11 C. C. A. 266, 63 Fed. 413. And see Winder v. Caldwell, 14 How.
434, 443; Dushane v. Benedict, 120 U. S. 630, 7 Sup. Ct 696.
2«iAlthorf V. Wolfe, 22 N. Y. 355; Harding v. Townshend, 43 Vt 638;
Danleavy v. Stockwell, 45 lU. App. 230; Shear. & R. Neg. (3d Ed.) § 609;
400 REMEDIES. [Ch. 5
to the plaintiff by outside arrangements (as a popular subscription)
of the expenses to which the wrong has put the plaintiff in the way
of medical services,*'* nursing, and the like.***
Partial payment is frequently regarded as a mitigation of dam-
ages.*'* Thus, on the same principle under which a satisfaction
by one joint tort feasor is available as a bar to an action against
the other, evidence that partial satisfaction has been made by one
of the wrongdoers is admissible in mitigation of damages.*"
138. Damages may be disproportionate in award, because —
(a) Excessive; or
(b) Inadequate.
Excessive Damages,
In cases in which from the nature of things there is no fixed stand-
ard of compensation, a court will set aside a verdict which is so
excessive that it cannot be accounted for on any other ground than
that the jury was misled by passion, prejudice, or ignorance, or
when the verdict bears other internal evidence of intemperance in
the minds of the jury.*** Where the amount of a judgment against
Yates V. Whyte, 4 Bing. (N. C.) 272; Bradburn v. Great Eastern R. Co., Ij.
R. 10 Exch. 1. But see Congdon v. Howe Scale 'Co., 66 Vt. 255, 29 Ati. ^3.
232 Klein y. Thompson, 19 Ohio St. 6G9; Indianapolis v. Gaston, 58 Ind.
221.
2 38 Pennsylvania Co. v. Marlon, 104 Ind. 239, 3 N. E. 874; Norristown
V. Moyer, 67 Pa. St. 355 (wliere money was raised by subscnption). But It
has recently been held. In an action against a minor, that damages cannot
be recovered for medical expenses which were voluntarily paid by another.
Peppercorn v. City of Black River Falls, 89 Wis. 38, 61 N. W. 79.
2S4 Livingston v. Bishop, 1 Johns. 290; Thomas v. Rumsey, 6 Johns. 26;
Barrett v. Thh-d Ave. R. Co., 45 N. Y. 628.
288 Daniels v. Hallenbeck, 19 Wend. 408; Bush v. Prosser, 11 N. Y. 347;
Wilmarth v. Babcock, 2 HiU (N. Y.) 194; Knapp v. Roche, 94 N. Y. 329.
236 1 Wood, Ry. Law, 1266; Pratt v. Press Co., 30 Minn. 41, 14 N. W. 62;
Id., 32 Minn. 217, 18 N. W. 836, and 20 N. W. 87 (libel); Mangel v. O'Neill,
51 Mo. App. 35 (Id.); Woodward v. Glidden, 33 Minn. 108, 22 N. W. 127 (false
imprisonment); Brosde v. Sanderson, 86 Wis, 368, 57 N. W. 49 (Id.); New
Orleans & C. R. Co. v. Schneider, 8 C. C. A. 571, 60 Fed. 210 (personal in-
jury); Cameron v. Bryan (Iowa) 66 N. W. 434 (Id.); McCoy v. Mllwai:riLee
St. Ry. Co., 88 Wis. 56, 59 N. W. 453 (Id.); Kelley v. Kelley, 8 Ind. App.
606, 34 N. E. 1009 (assault). And see Dwyer v. Raih-oad Co., 52 Fed.
Ch. 5] DAMAGES, 401
a railroad company for killing a cow exceeded the market value of
the animal, as testified to by any of the witnesses including the
plaintiff, the judgment was set aside as excessive.^'^
It is said that no verdict for criminal conversation has ever been
set aside as excessive.*'*
The common practice in cases of excessive verdicts is for the court
to enter an order granting a new trial, unless the plaintiff consents
to a reduction to such sum as the court shall not deem excessive.'^®
But courts interfere reluctantly with a verdict on the mere ground
of excessive damages, and never except in a clear case.**® Each
case must depend on its own circumstances. Thus, in one case
over f 4,000 was not considered excessive for an unmannerly ejec-
tion from a car.**^ In another simple case, however, an order was
entered setting aside a verdict of f 800, unless f 400 was remitted by
87; Wiggin v. Coffin, 8 Story, 1, Fed. Cas. No. 17,624; 1 Suth. Dam. 810;
2 Scdg. Dam. 652; Wood, Mayne, Dam. 7»8. In Huckle v. Money, 2 Wils.
207, Lord Camden said: "It \» very dangerous for the Judge to iutermoddle
in damages for torts. It must be a glaring case, indeed, of outrageous
damages in a tort, and which aU mankind, at first blush, must think so. to in-
duce a court to grant a new trial tor excessive damages.*' And see Gilbeit
V. Bunensbaw, Cowp. 230.
««T JacksonvUle, T. & K. W. Ry. Co. v. Garrison, 30 Fla. 431, 11 South. ©32.
So, where the evidence falls to show that the personal injuries sought to be
recovered for are of a permanent character, the verdict of $26,000 is ex-
cessive, although they resulted from gross negiligence on part of defendant.
LouisviUe & N. R. Co. v. Long, 94 Ky. 410, 22 S. W. 747.
SS8 5 Am. & Eng. Enc. Ijaw, 61, citing, as to this wrong and seduction,
Riddle V. McGinnis, 22 W. Ya. 253; Cross v. Rutledge, 81 111. 266; Wilford
V. Berkley, 1 Burrows, 609; Smith v. Masten, 15 Wend. 270; Nortin v.
Warner, 6 Conn. 172; Shattuck v. Hammon, 46 Yt 466; Rea v. Tucker, 51
BL 110; Conway v. Nickle. 34 Iowa, 533; Harrison v. Price, 22 Ind. 16.
38 » Stickney v. Bronson, 5 Minn. 215 (Gil. 172); Craig v. Cook, 28 Minn. 232,
9 N. W. 712; Hardenberg v. Railroad Co., 41 Minn. 200, 42 N. W. 933.
240 Whipple V. Cumberland Manuf'g Co., 2 3tory, 661, Fed. Cas. No.
17,516; Wiggin v. Coffin, 3 Story, 1. Fed. Cas. No. 17,624; Thurston v.
Martin, 5 Mason, 497, Fed. Cas. No. 14,018; Berry v. Yreeland, 21 N. J.
Law, 183; Gilbert v. Burtenshaw, Cowp. 230.
a*i Missouri Pac. B. Co. v. Peay (Tex. Civ. App.) 26 S. W. 768; Nlcholds
V. Crystal Plate-Glass Co. (Mo.) 27 S. W. 516; Campbell v. Cornelius (Tex.
Civ. App.) 23 S. W. 117; Lynch v. Lerche, 73 Hun, 553, 26 N. Y. Supp. 96;
Smith V. Philadelphia & R. R. Co., 57 Fed. 903. Conductor, without provoca-
LAW OF TORTS — 26
402 KEMKDIES. [Ch. 5
plaintiff.^** Twenty-five thounand dollars has been held not exces-
sive for injnries to a child,**- nor to a man rendered a hopeless
cripple for life.'** Indeed, a verdict of $31,700 in an action for ma-
licious prosecution, and a verdict in a personal injury case for f45,-
000,**" have been sustained. On the other hand, a verdict of
tlon, called a passenger a "God damn son of a bitch/* threatened to kill him,
pulled him rouj^hlj' to the end of the car, appeared to draw a pistol on him,
and spit tobacco Juice in his face. East Tennessee, V. & G. Ry. Co. v.
Fleetwood, 90 Ga. 23, 15 S. E. 778. And see Richmond & D. R. Co. v.
Jefferson, 80 Ga. 554, 16 S. E. 69.
««» Hardenbergh v. St Paul, M. & M. R. Co., 41 Minn. 200, 42 N. W. 933.
And see Toomey v. Railway Co., 2 Misc. Rep. 82, 21 N. Y. Supp. 448 (nominal
damages for arrest).
243 Dunn v. Burlington, C. R. & N. R. Co., 36 Minn. 73, 27 N. W. 448.
2*4 Hall V. Chicago, B. & N. R. Co., 46 Minn. 439, 49 N. W. 239; Wlllard
T. Holmes, 2 Misc. Rep. 303, 21 N. Y. Supp. 998.
24ft Robinson v. Railroad Co., 48 Cal. 410, and in Worthen ▼. Railroad Co.,
125 Mass. 49. In Smith v. Whittier, 95 Cal. 279-283. 30 Fac. 529, will be
found a collection of small verdicts, and at page 284, 95 Cal., and page 529,
30 Pac, of large verdicts. In the foUowing cases verdicts have been held
not excessive: Knee hurt, but external recovery, ^,000: Coggswell v. Rail-
way Co., 5 Wash. 46, 31 Pac. 411. Broken rib and roughened pleura, $500:
Evans v. City of Huntington, 37 W. Va, 601, 16 S. E. 801. Broken thigh,
$2,000: McDowell v. The France, 53 Fed. 843. Collar bone broken and other
injuries, $7,500: Galveston, H. & S. A. R. Co. v. Wesch (Tex. Civ. App.) 21
S. W. 313. Right arm and shoulder, $15,000: Morgan v. Southern Pac. R. Co.,
95 Cal. 501, 30 Pac. 601. Displacement of womb, $15,000: City of Chicago
V. Leseth, 43 111. App. 480. Helpless invalid for life. $15,000: Sears v. Seattle
Consolidated St R. Co., 6 Wash. 227, 33 Pac. 389. Spinal injury, $3,000:
Wabash Western Ry. Co. v. Friedman, 41 111. 270 (reverseil on another point
[111.] 30 N. E. 353). Finger of left hand, $2,750: Haynes v. Erk, 6 Ind. App.
332, 33 N. E. G37. Permanent injury to lung, $5,000: Fordyce v. Culver. 2
Tex. Civ. App. 560, 22 S. W. 237. Broken leg, thereafter stiflT and short: $5,-
000, Town of Fowler v. Linquist (Ind. Sup.) 37 N. B. 133; $6,500, Selleck v.
J. Langdon Co., 59 Hun, 627, 13 N. Y. Supp. 858. Broken skull, crushed hip,
and damaged urinary organs, $15,000: Texas & P. R. Co. v. Hohn, 1 Tex.
Civ. App. 36, 21 S. W. 942. Fracture of hip, woman of 60, $5,000: City of
Kansas City v. Manning, 50 Kan. 373, 31 Pac. 1104. Injury to eyes, ears,
shoulder, and arm, $3,000: Sabine & E. T. R. Co. v. Ewing, 1 Tex. Civ. App.
531, 21 S. W. 700. Amputation of left arm, etc., $10,000: Baltzer v. Chicago,
M. & N. R. Co., 89 Wis. 257, 60 N. W. 716. In cases of wlUful violence: $9,-
000, Townsend v. Briggs (Cal.) 32 Pac. 307' $2,000, Wohlenberg v. Melchert, 35
Neb. 803, 63 N. W. 982. Damages not excessive: $10,000, hand, Flanders v.
Ch. 5] DAMAGES. 403
f 60,000, recovered against the sergeant at arms of the house of rep-
resentatives of the United States for a false imprisonment under the
orders of the house, and lasting 35 dajs^ has been held excessive.^^*
Inadequate Damages.
The same principle which renders courts unwilHng to set aside
verdicts as being excessive causes them to hesitate to annul verdicts
as being too small.**^ Therefore, in an action for an injury to a
person's ankle, alleged to have resulted from another's negligence,
where the evidence as to the extent of the injury was conflicting, a
judgment for f 1,000 was not reversed as being so inadequate as to
indicate that it was the result of passion or prejudice.'** So a ver-
dict of six cents for improper detention long enough to have walked
across the street was not set aside as inadequate.**" But if the
Chicago. St P., M. & O. R. CJo.. 51 Minn. 193, 53 N. W. 544; $25,000. loas of
leg, Ehrman v. Railroad CJo., 131 N. Y. 576, 30 N. B. 67.
S4« Kilbum v. Thompson, 4 MacArthur, 401; Wheeler & W. Manurg Go.
V. Boyce, 36 Kan. 350, 13 Pac. 609. Foot: $12,000, Kroener v. Chicago, M. &
St. P. R, Co., 88 Iowa, 16, 65 N. W. 28; $3,000, Kennedy v. St. Paul City R.
Co. (Minn.) 60 N. W. 810. Two Angers, $5,000: Louisville & N. U. Co. v.
Foley, 94 Ky. 220, 21 S. W. 866. Fracture of smaller bone of ankle, $1,100:
Bronson v. Forty-Second St. Ry. Co., 67 Hun, 649, 21 N. Y. Supp. 695. Tem-
porary injury, $6,000: Louis vUle & N. Ry. Co. v. Survant (Ky.) 27 S. W. 999.
Amputation of first joint of left thumb, $2,000: LouisvUle & N. R. Co. v.
Law (Ky.) 21 S. W. 648. In case of willful violence, $5,000: Roades v. Lar-
son, 66 Hun, 635, 21 N. Y. Supp. 855. For dishonor of a checlc, $450: Schaff-
ner v. Ehi-man (111.) 28 N. B. 917.
247 Townsend v. Hughes, 2 Mod. 150. And see HamUton y. The William
Branfort, 48 Fed. 914; Id., 3 C. C. A. 155, 52 Fed. 390. Indeed, it was
said in Pritchard v. Hewitt, 91 Mo. 547, that "a new trial will not be granted
solely on the ground of the smallness of the damages recovered." A judg-
ment will not be set aside for failure to assess merely nominal damages
where no question of permanent right is involved. Knowles v. Steele (Minn.)
61 N. W. 557.
2«8 Barclay, J., dissenting. Boggess y. Metropolitan St Ry. Co., 118 Mo.
328, 23 S. W. 159, and 24 S. W. 210.
24 » Henderson v. McReynolds (Sup.) 14 N. Y. Supp. 351; Boggess v. Metro-
politan St. Ry. Co., 118 Mo. 328, 23 S. W. 159, and 24 S. W. 210; Michalke v.
Galveston, H. & S. A. Ry. Co. (Tex. Civ. App.) 27 S. W. 164; Kalembach v.
Michigan Cent. R. Co., 87 Mich. 509, 49 N. W. 1082. A verdict of a dollar
hajB been allowed to stand. Allison v. Railway Co. (Tex. Civ. App.) 29 S.
W. 425.
404 HKMEDIES. [Ch. 5
verdict be so manifestly insofficient as to indicate bias^ prejadice,
or ignorance on tbe part of the jury, it will be set aside and a new
trial granted.'^^ Thus, an omnibus ran oyer a man and iMroke his
thigh. He paid £50 to a doctor to set his leg. The jury gave a
farthing damages, and he got a new trial.^** So, where a candidate
for office circulated a false report that a girl of unquestioned virtue
had been delivered of a bastard child, of which such candidate's rival
for office was the father. In ap action for this slander, the jury
returned a verdict for |5. It was held that the sum allowed was
80 obvious^' inadequate as to warrant a reversal.^"*
139. A cause of action is an entirety, and all the damages
resulting therefrom must be recovered in one suit.
It cannot be split, and separate actions be main-
tained to recover each separate item of damage.
But the same state of facts may give rise to different
causes of action, either in the same or difEarent
persons; in which case a separate action may be
maintained to recover the damages caused by each
separate cause of action.
Entirety of Demand,
The ordinary rule is that damages resulting from one and the
same cause of action must be assessed and recovered once and for
all; ^'^^ that is to say, ordinary damages are indivisible*^* A suffi-
cient reason is, "Interest reipublicaB ut sit finis litium.'* '"• Accord-
aeo Henderson v. St. Paul & D. Ry. Co., 52 Minn. 479» 55 N. W. 53; Ches-
apeake, O. & S. W. R. Co. V. Higgins, 85 Tenn. 621, 4 S. W. 47; Nicholson r.
New York & N. H. R. Co., 22 Conn. 74; McDonnald v. Walter, 40 N. Y. 551.
261 Armytage v. Haley, 4 Q. B. 918. And see PhUlips v. London & & W.
R. Co., 5 Q. B. Div. 78; Cook v. Beale, 3 Salk. 115; Brown v. Seymour, 1
Wils. 5; Austin v. Hilliers, Hardres, 408; Traylor v. Evertson (Tex. Civ.
App.) 26 S. W. 637.
2tt2 Black well v. Landreth (Va.) 19 S. B. 791.
assFi-aser, Torts, 165.
264Colvin V. Corwin, 15 Wend. 557; MiUer v. Covert, 1 Wend. 487; Wag-
ner v. Jacoby, 26 Mo. 532; Smith v. Jones, 15 Johns. 229; Butler v. Wrlgibt,
2 Wend. 369; Cornell v. Cook, 7 Cow. 310; Brazier v. Bancing, 20 Pa. St
345; Ross v. Weber, 20 111. 222; Logan v. Caffery, 30 Pa. St 196.
«B6 Clerk & L. Torts, 95.
Ch. 5] DAMAGES. 405
inglj, one jadicial award of damages discharges a tort.*"* If the
injured party has made any mistake as to the extent of his injury,
this does not entitle him to eubsequently come into court and ask
for more. Thus, where a man recovered for assault and battery, re-
sulting in the fracture of his skull, and afterwards another piece of
his skull came out, this was a part of his original injury, and could
not be the basis of a new recovery.**^
In an ordinary trespass, the breaking and entry of another's close
is the substantial injury, and the subsequent damage a mere ag-
gravation thereof. The cause of action, therefore, is single and
entire, and the statute of limitation and a release or judgment re-
fer to the original entry, and the alleged subsequent wrong does
not give a new cause of action. *•• A plaintiff can generally recover
in one proceeding all the damage arising out of his cause of action,
alike prior and subsequent to the commencement of the cause of
action.***
sft« Ante, p. 321 et seq., "Discharge by Judgment."
s 57 Fetter v. Beale, 1 Balk. 11.
«88Lamb v. Walker, 3 Q. B. Div. 389; Underh. Torts, 306; 3 Suth. Dam.
372. A cause of action arising from the wrongful use of a street by a rail-
-way company is barred in six years. Each oay's continuance does not give
rise to a fresh cause of action. Porter t. Midland Ry. Co., 125 Ind. 47G, 25
N. B. 556. But see Knox v. Metropolitan Bl. Ry. Co., 58 Hun, 517, 12 N. Y.
Supp. 848. And see WeUs v. New Haven & N. Co., 151 Mass. 46, 23 N. B.
724. An allegation of acts done by plaintiff "for the period of one year prior to
the commencement of said cause" wiU not admit evidence of trespasses since'
suit begun. Corliss v. Dunning, 8 Waslu 332, 35 Pac. 1074. In Texas, to
avoid multipUcity of suits, aU damages, even from a continuing nuisance, sus*
tained upon the date of trial, may be recovered. Comminge v. Stevenson,
76 Tex. 642, 13 S. W. 556. "It is the rule that where a thing directly wrong-
ful in itself is done to a man, and is in itself a cause of action, he must, if he
sues in respect of it, do so once for aU. So, if he is beaten or wounded, if he
sues he must sue for all his damages, past, present, and future, certain and
contingent. He cannot maintain an action for a broken arm and subse-
quently for a broken rib, though he did not know of It when he commenced
his first action." Mitchell v. Darley Main Colliery Co. {1884) 14 Q. B. Div. 125.
53 Law J. Q. B. 471; Id. (1886) 11 App. Cas. 127, 55 Law J. Q. B. 529, per Lord
BramwelL
. 250 Pelie V. Chicago & N. W. B. Co., SI Wis. 400, 8 N. W. 265; Mitchell r.,
Darley Main Colliery Co., 14 Q. B. Div^ at page 134, per Brett. But see E|ort ;
man v. Ames, 12 Minn. 451 (Gil. 347). Thus, in personal injury cases plaintiff
406 KEMKDIES. [Ch. 5
Severable Damages.
But this principle applies only when the causes of action are the
same. The same state of facts may give rise to several causes of
action, for each of which there is an appropriate and separate action
at law. This right of action may reside in different persons.
Where a child is injured, it has one cause of action, and its parent
another, against the wrongdoer.*** Where a wife is injured, she
has one ground of complaint for the tort, her husband another.'*^
Again, the right of action may be severable with respect to one per-
son. Severable damages arise when the same facts give rise to more
than one distinct cause of action, though between same parties.***
The same act by the same person may constitute trespass to goods
and to the person, and the cause of action be severable. If your
carriage be run down by a truck, and both it and you are hurt, you
can sue (1) for injury to carriage, and (2) in another action for injury
to yourself. Hut, having once sued for injury to self, on discovering
injury to have been greater than supposed, you cannot sue again.***
recovers for past injury, present suffering, and future damages. Curtiss
V. Rochester & S. R. Co., 20 Barb. 282; City of Atchison v. King, 9 Kan. 550;
Welch V. Ware, 32 Mich. 77; Birchard v. Booth, 4 Wis. 85; Morely v. Dun-
bar, 24 WlB. 183; Wilson v. Young, 31 Wis. 574; Goodno v. Oshkosh, 28 Wis.
300; Spieer v. Chicago Ry. Co., 20 Wis. 580; Karasich v. Hasbrouck, 28 Wis.
568; Pennsylvania R. Co. v. Dale, 76 Pa. St 47; Tomlinson v. Derby, 43
Oonn. 562; Fulsome v. Concord, 46 Vt 135; Nones v. Northouse, 46 Vt 587;
Metcalf V. Baker, 57 N. Y. 662; New .Tersey Exp. Co. v. Nichols, 33 N. J.
Law, 434; Walker v. Erie R. Co., 63 Barb. 260; Bradshaw v. Lancashire
Ry. Co., L. R. 10 C. P. 189; Collins v. Council Bluffs, 32 Iowa, 324; Russ
V. Steamboat War Eagle, 14 Iowa, 363; Dixon v. Bell, 1 Starkie, 287. But
only the present worth of such future damages can be assessed. Fulsome
v. Concord, 46 Vt 135. As of a growing crop, see Taylor v. Bradley, 39 N. Y.
129; People's Ice Co. v. Steamer Excelsior, 44 Mich. 229, 6 N. W. 636;
Smith V. Chicago R. Co., 38 Iowa, 518; Richardson v. Northrup, 66 Barb. 85;
Folsom V. Apple River Log Driving Co., 41 Wis. 602.
2«o poBt, p. 456, "Injury to Family Relations"; ante, p. 311, "Release.**
a«i Post, p. 469.
s«2 1 Sedgw. Dam. fi 91, and cases cited.
S88 Brunsden v. Humphrey, 14 Q. B. Div. 141. Questions of this kind are
Involved not only with respect to discharge by agreement, judgment, statute
of limitation, and the like, but also with respect to many matt«-s of prac-
tice, especlaUy the allied cases, which are described more accurately, per-
Ch. 5] DAMAOKS. 407
In general, however, the common practice, for considerations of
convenience, is to join all possible causes of action in one suit. The
law allows a settlement of all damages done by one circumstance to
be litigated at the same time. Therefore, where the first count of
the complaint in an action against a railroad company was for kill-
ing an ox, and the second for killing a horse, and in the claim for
damages therefor there was included freight paid on the horse to
the company, it was held that the claim for freight arose ex delicto,
and that the causes of action were not improperly joined.***
Continuing Torts.
The more difficult and uncertain question is as to the disposition
of cases where the parties are the same, but the conduct and the
consequent damage are continuing.'*'^ Thus, if a trespasser put up a
permanent structure on another's land, or persist in maintaining a
nuisance, it is not easy to determine whether the damages are in-
divisible, and therefore must be recovered, both as to those accruing
prior to the commencement of the suit and those which may arise in
the future, in the pending action, or whether in the pending action
only the damages to its commencement can be recovered, and subse-
haps, as involying separable controversies. Thus, in Fergason v. lUiUway
Co., 63 Fed. 177, in an action by a switchman against a railroad company, S.,
and P., for personal injuries sustained by being run over by the company's
switch engine, the petition alleged that the engine was improperly con-
structed; that after plaintiff fell on the track, having been thrown down in
an effort to step on the defective footboard, he was pushed along the track;
and that such company, together w&th the engineer, S., and yai*dmaster, P.,
were negligtent in that they did not keep a proper lo<^out, and did not heed
plaintiff's signals to stop. It was held that the controversy as to injury
because of improper construction of switch was between the plaintiff and
the railway company, and that under the circumstances the case was there-
fore properly removed to the United States court
«o* Rideout v. Milwaukee, L. S. Sc W. R. Co., 81 Wis. 237, 61 N. W. 439;
La Duke v. Township of Exeter, 97 Mich. 450, 56 N. W. 851.
28S No very clear idea is to be obtained from many current statements on
the subject. "Every continuance of a trespass is a fresh one." "The con-
tinuance of a trespass from day to day is considered in law a several tres-
pass each day." Earl of Manchester v. Vale, 1 Wm. Saund. 24, citing
Monckton v. Pashley, 2 Ld. Raym. 976. See article in 98 Law T. 87. Any
continuance of a nuisance is a fresh one, and therefore a fresh action will
lie. 3 Bl. Comm. 220. ''Where one creates a nuisance upon his own land
408 REMEDIES. [Ch. 5
quent proceedings instituted upon subsequent harm suffered; that
is, one action for all damages, or successive actions for successive
dainages.*'*
As a solution of the difficulty, Lord Bramwell has suggested that
the question whether successive actions would lie depends upon
whether the act complained of was actionable without proof of dam-
age.'*^ And excellent American authority has developed this into
which affects another, the nuisance Is continuing, and the party injured,
not being bound to enter and abate it, may maintain an action against the
party so inflicting an injury up(m him as often as he has sustained an actual
Injury therefrom." Underbill on Torts, 395. "The continuance of a nuisance
gives rise to two causes of action." Pig. Torts, 148.
>«• In contracts the same questions here discussed in torts have arisen.
The same principle Is Inyolved with respect to breach of continuing con-
tract The law requires the parties in Utlgatlon to bring forward their
whole case, and will not ordinarily permit them to open the Bome subject of
litigation in respect to matters which might have been brought forward as
part of contest. Henderson v. Henderson, 3 Hare, 100-115. Accordingly,
where a contract upon an entire consideration stipulates for the perform-
ance of several acts in favor of the same person at the same time, it Is en-
tire, and separate suits cannot be maintained to recover for the failure to
perform each several act. This was applied to recovery of damages for
failure of the railroad company to construct crossings as a bar to an acti<m
for failure to construct fences. Indiana, B. & W. By. Co. v. Koona, 105 Ind.
607, 5 N. E. 549. But, on the other hand, it has been held that a continuance
of a breach of a continuing covenant, after the commencement of a suit of
•
damages therefor, is In law a renewal thereof, for which another action
may be maintained, and a recovery in the former is no bar to the latter. This
was applied to breach of covenant to repair contained in a written lease.
Block V. Ebner, 54 Ind. 544. Generally, on this subject, see Thistle v. Union
P, & Ry. Co., 29 U. C. C. P. 76; Cole v. Buckle, 18 U. O. a P, 286; Smith
V, Great Western Ry. Co., 6 U. C. C. P. 151; Knapp v. Great Western Ry,
Co., Id. 187; Wood v. Michigan Air Line R. Co., 90 Mich. 212, 51 N. W. 265;
Beach v. Grain, 2 N. Y. 86, 2 Barb. 120; Maunsell v. Hort, L. R. 1 Ir. 89;
Baker v. Frick, 45 Md. 337; Mcintosh v. Lowu, 49 Barb. (N. Y.) 550-^554, and
cnses cited; Shaffer v. Lee, 8 Barb. (N. Y.) 418; Benkard y. Babcock, 2
Rob. (N. Y.) 175-183; Pish v. FoUey, 6 Hill (N. Y.) 64; Jex v. Jacob, 7 Abb.
N. C. 452; Kissecker v. Monn, 36 Pa. St. 313. Et vide post, as to damage
for constructing railroad on land without right.
2«7in Parley Main Colliery Co. v. Mitchell, 11 App. Cas. 127-145, over-
ruling Lamb v. Walker, L. R. 3 Q. B. 889. And see Crumble r. WaDsend
Ix)cal Board [1891] 1 Q. B, 503, 60 Law J. Q. B. 392.
Ch. 5] DAMAGES. 409
four propoBitions: (a) As to trespasses, the cause of action being
complete without proof of injury or loss, damage must be recovered
in a single action; (b) as to nuisances (being acts wrongful only
when causing damage), successive actions must be brought for any
consequences accruing after the institution of the first 8uit;(c) as
to trespasses, resulting in continuing nuisances (the institution of
the wrong being treated as a trespass, and its cpntinuance bb a
nuisance), damages for the original act of trespass are to be re-
covered in the first action, but successive actions must be brought
to recover damages for continuing the wrongful act; (d)* as to
permanent injuries not the result of trespass, all damages may be
recovered in a single suit.***
This classification is more philosophical than consistent or suffi-
cient. It involves the contradiction of assuming in its second rule
that a nuisance is wrongful only when causing damage; and in its
third rule, that a continuing trespass becomes a nuisance. As a
matter of fact, a nuisance may be an invasion of an absolute (or
simple) right, and not be wrongful only when causing damage.'^^
It may fairly be called a radical treatment to regard all continuing
trespasses as nuisances. The distinction between cases under the
first and the fourth rules is often shadowy. In many cases both the
rule of damages and the wrongful conduct are essentially the same.
This view of the law, moreover, will not fit the cases.*^®
Whenever conduct is completed, and legal damages have been suf-
fered, or are presumed by law, a cause of action has accrued. Re-
covery can be had on this only once, — for all harm. It is immate-
rial whether the conduct will or will not be actionable without proof
of damages.'^ ^ Conduct is complete if the means of prevention
would involve the violation of another^s right. If a man digs a hole
in another's land, his conduct is complete, although a continuing
source of damage may be created; but damages must be recovered
once for all.*^' A person may be responsible, as a continuing wrong-
s«8 2G Am. Law Reg. (N. S.) 281, 345. And see Brewer, J., in Kansas Pac
Ry. Co. V. Mihlman, 17 Kan. 224-230.
«•» Poet, ]>. 778, "Nuisance."
270 Clerk & L. Torts, 45, note d.
«Ti Fitter V. Veal, 12 Mod. 542; Clerk & L. Torts, 45.
2T2 ciegg V. Dearden, 12 Q. B. 57a
410 KKMKUIKS. [Ch. 5
doer, for permitting a nuisance to remain upon his land; but no one
can be charged as such continuing wrongdoer who has not the right,
and is not under the duty, to terminate that which caused the injury;
and a party who enters another's lands, and commits a trespass by
digging a ditch, does not thereby acquire a right to re-enter and fill
up the ditch, and will be held liable as a trespasser if he does so re-
enter.*^'
Where conduct is necessarily injurious, as where a nuisance as-
sumes a permanent character, which will continue without change
from any cause but human labor, it is regarded as completed. There
the damage is an original damage, and may be at once so compen-
sated. And a person is not entitled to successive actions for a con-
tinuing nuisance.*'* Thus, where the injury to one's well by the
collection of injurious and offensive matter on adjacent premises is
permanent in character, he may recover in one action all damages,
both present and prospective.*'*
Where, however, there are both continuing damage and continu-
ing conduct, the rule must be otherwise. There are, inter alia, four
conspicuous objections to insisting upon recovery of all damages in
one proceeding, viz.: (1) That it is not only unjust to assume,*'*
27S Kansas Pac. Uy. Go. v. Mihlman, 17 Kan. 224-230. Further, on this
subject, see 4 Cent. Law J. 108. Van Hoozler v. Hanuibal & St. J. R. f /O.,
70 Mo. 145; Vedder v. Vedder, 1 Denio, 257; Mayor, etc., v. Lord, 17 Wersd.
285; Stone v. Mayor, 25 Wend. 157. But see Thompson v. Gibson, 7 Mees.
& W. 456. Cf. Morris v. Ryerson, 27 N. J. Law, 457; Cumberland & O.
Canal Corp. v. Hltcbings, 65 Me. 140.
274 Troy V. Cheshire R. Co., 23 N. H. 83; Smith v. Railroad Co., 23 W. Va.
451; Fifth Nat. Bank v. New York El. R. Co., 28 Fed. 231; Seely v. Aldeu.
61 Pa. St. 302; Fowle v. New Haven & N. Co., 107 Mass. 352, 112 Mass. 334;
Blzer v. Ottmnwa Hydraulic Power Co., 70 Iowa, 145, 30 N. W. 172; Tuck?r
V. Newman, 11 Adol. & E. 40; Schlltz Brewing Co. v. Compton. 142 111. 511,
32 N. E. 693, citing and commenting on many cases; Powers v. Council
Bluffs. 45 Iowa, 652; Chicago, F. & B. Co. v. Sanche, 35 Dl. App. 174. Of.
Ohio & M. Ry. Co. v. Wachter, 123 111. 440, 15 N. B. 279. Some confusion
arises on this point with respect to damages arising from Impairment of the
market value of property, and of the value of the use of such property during
its continuance. Grand Rapids & I. R. Co. v. Helsel, 38 Mich. 62; Harmon
V. Railroad Co., 87 Tenn. 614, 11 S. W. 703; Decatur G. L. & 0. Co. v. How-
ell, 92 III. 19.
2T6 Beatrice Gas Co. v. Thomas, 41 Neb. 662, 59 N. W. 925.
S76 Mansfield. J., in Robinson v. Bland, 2 Burrows, 1077-1087.
Ch. 5] DAMAGES. 411
but it is also impossible to tell, how long the wrongdoer will continue
his conduct, and consequently what damage the complainant suf-
fers; *" (2) that such a rule would deprive the court of the power,
by one verdict to be followed by another, to "quicken his [defend-
ant's] steps in removing the wrongful state of things''; ^^' (3) that
the wrongdoer cannot thus acquire a right in the land to continue
his wrong; '^^ and (4) that, when the wrong is complete only on
accrual of damage, the plaintiff has no cause of action until such
harm has happened, — ^he has no cause of action for future damage.
"Accordingly, in trespass and tort, a new action may be brought as
often as new injuries and wrongs are repeated, and therefore damages
shall be assessed only up to the time of the wrong complained of.***
It was therefore held in Thirley Main CJolliery Co. v. Mitchell,***
that, where the support to land was wrongfully withdrawn, a
fresh action could be brought as each subsidence occurred; for under
such circumstances there is not merely an original act, the results of
which remain, but a state of things continued." *•* So, where there
877 There is no presumption that the wrong will continue forever. Whlt-
moro V. Blschoff, 5 Hun, 176.
37 8 Ante, p. 409, note 268.
3711 Recovery with satisfaction for erecting a structure without authorltv
on anotber*8 land does not operate as a purchase of the right to continue
such erection. Runsell v. Brown, 63 Me. 203. And see Brakken v. Rail-
way Co., 31 Minn. 45, 16 N. W. 459; Adams v. Railroad Co., 18 Minn. 200
<Gn. 236); Hartz v. Railroad Co., 21 Minn. 358; Slierman v. Railroad Co., 40
Wis. 645; Anderson, L. & St. L. R. Co. v. Kemodle, 54 Ind. 314; Holmes
V. Wilson, 10 Adol. & E. 503. Compare Hudson v. Nicholson, 5 Mees. & W.
436, with same case used as illustration in 10 Adol. & E. 509. Et vide
Wlnterboume v. Morgan, 11 East, 395; Rosewell v. Prior, 2 Salk. 459; John-
son V. Long, 1 Salk. 10; Rex v. Pedly, 1 Adol. & E. 822; Bowyer v. Cook, 4
C. B. 230; Battlshill v. Keed, 18 C. B. 696; Thompson v. Gibson, 7 Mees. & W.
455; Shad well v. Hutchinson, 4 Car. & P. 333; Cumberland v. Hltchings, 65 Me.
140; Morris v. Ryerson, 27 N. J. Law, 457; DiU v. McCloskey, 9 Phlla. 76.
380 Note to Hambleton v. Veere, 2 Saund. 161. And see Galway v. Metropoli-
tan El. Ry. Co., 128 N. Y. 132, 28 N. E. 479 (a leading case on statute of lim-
itation), and cases collected in great number at page 134, 128 N. Y., and page
479, 28 N. E.; American Bank Note Co. v. New York El. R. Co., 129 N. Y.
264, 29 N. E. 302; Doyle v. Railway Co., 136 N. Y. 512. 32 N. E. 1008; Rumsey
V. Railroad Co., 133 N. Y. 82, 80 N. B. 654; RoseweU v. Prior, 2 Salk. 469
(ancient light).
381 11 App. Cas. 127.
382 Per Bowen, L. J., Mitchell v. Darley Main CoUiery Co., 14 Q. B. Div. 125-
138.
412 REMEDIES. [Cb. 5-
is a continuing illegal obstruction to use of water, 'tbe general rule-
is that successive actions may be brou^t as long as the obstruction,
is maintained. A recovery in the first action establishes the plain-
tiff's right. Subsequent actions are to recover damages for a eon-
tinuance of the obstruction." *'* And, generally, "new actions may-
be brought as often as new damages arise." ■•* To constitute a con-
288 Mercur, J., in Bare v. Hoffman, 70 Pa. St. 71. And see Eari, J., In Uline-
V. New York Cent. & H. R. R. Co., 101 N. Y. 98, 4 N. E. 536, a leading case.
So, obstruction of ditch draining farmer's land, Steinlce v. Bentley, 6 Ind. App.
663, 34 N. B. 97. Et vide St Louis, A. & T. H. R. Co. v. Claunch, 41 lU. ApiK
592; so, obstructing a ditch discharging on plaintiff's land, Wendlandt v.
Cavanaugh, 85 Wis. 256, 55 N. W. 408; diversion of a bed by constiuction of*
a roadbed, George v. Wabash Western R. Co., 40 Mo. App. 433; obstruction of^
water course, each continuance a fresh one, Ohio & M. Ry. Co. v. Thillman^
143 111. 127, 32 N. B. 529; as to erection of buttress. Holmes v. Wilson, 10 AdoL
& B. 503. So, if a railroad company, by excessive and improper use, substan-
tially destroy the easement of way of ingress and egress appurtenant to an
abutting lot, the owner of such lot can maintain successive action for suclt
nuisance, recovering the damages that have accrued up to the time the action,
was brought, and a recovery in one action wUl not bar a subsequent one-
brought for a continuance of such wrong. Harmon v. Railroad Co., 87 Tenu.
614, 11 S. W. 703; Uline v. New York Cent & H. R. R. Co., 101 N. Y. 98, 4 N.
B. 536. Damages for overflowing and washing land by the construction or
a boom in the river on which it abuts can be recovered only to the date of
commencing action therefor, as the continuance of the trespass gives a new^
cause of action. Rogers v. Coal River Boom & Driving Co., 39 W. Va. 272, lO"-
S. E. 401. Cf. Russell v. Brown, 63 Me. 203; Lackland v. North Missouri Ry.
Co., 31 Mo. 180; Hopkins v. Western Pae. Ry. Co., 50 Cal. 190; Carl v. The-
Sheboygan & F. du L. Ry. Co., 46 Wis. 625, 1 N. W. 295; Pinney v. Berry, 61
Mo. 359;. Cumberland v. Hitchings, 65 Me. 140; Park v. Railway Co., 43 lowa^
036; Frith v. City of Dubuque, 45 Iowa, 406; Savannah & O. Canal Co. v.
Bourquin, 51 Ga. 378; Hatfield V. Central Ry. Co., 33 N. J. Law, 251; Brakken
V. Minneapolis &. St L. Ry. Co., 29 Minn. 41, 11 N. W. 124; Gould v. McKenna^
S<J Pa. St. 297; Bare v. Hoffman, 79 Pa. St. 71; Westboume v. Mordant, Cro*
Eliz. 191; Penruddock's Case, 5 Coke. 205; Same v. Barwith, Cro. Jac. 231 ^
Shadwell v. Hutchinson, 4 Car. & P. 333.
284 Troy V. Cheshire Ry. Co., 23 N. H. 83; Hicks v. Herring, 17 CaL 565;
Phillips V. Tferry, ^42 N. Y. 313; Hopkins v. Western Pac. R. Co., 50 Cal.
190-194; Patterson v. Great Western Ry. Co., 8 U. C. C. P. 89; Cumberland
& O. Canal Corp. v. Hitchings, 65 Me. 140, and cases cited; Hodgos v. Hodges,.
5( Mete. (Mass.) 205; Freudenstein; v. Heine, 6 Mo. App. 287; Pinney v. Berry,
61 Mo. 359; Van Hoozler v. Hannibal & St. J. R. Co., 70 Mo. 145; Delaware-
& R. Canal Co. v. Wright, 21 N. J. Law, 469; Blunt v. McCormick, 3 Denio,,
■Ch. ^1 DAMAGES. 413
tinuing nttisance^ however^ there must have been an original nui-
sance.**"
The jury may not consider judgments recovered for the earlier
maintenance of the same nuisance, for the purpose of reducing dam-
ages.*** On the contrary, "very exemplary damages will probably
be given if, after one verdict against him, the defendant has the
hardiness to continue the nuisance." **^ Recovery of a judgment
not only does not bar plaintiff's right to recover in a subsequent ac-
tion for a continuance of the same nuisance,*** but, also^ such judg-
ment cannot be collaterally attacked in an action for continuance
of the same nuisance. If the defendant in such action admits the
<;ontinuance of the nuisance, the only question for the jury is the
^amoont of damages.*** The defendant is, however, entitled to a
reasonable time after notice within which to abate; and, if he
•abates within a reasonable time after such notice, the plaintiff has
no cause of action for a continuing nuisance.***
140. Legrislation has generally changed the common law
as to damages, both as to —
(a) The extent of recovery; and
(b) The wrong for which recovery can be had.
.Extent of Becovery,
Of the many instances in which the common-law rule as to the
•extent damages are recoverable has been changed by statute, what
4u*e ordinarily known as double or treble damages afford a good il-
lustration. Oommon-law damages were always single.**^ It is al-
283; Thayer v. Brooks, 17 Ohio, ^89; Bare v. Hoffmmi, 79 Pa. St. 71; Dim-
can V. Markley, Harp. (S. C.) 276; Hazeltine v. Case, 1 N. W. 66.
S86 Atkinson v. City of Atlanta, 81 Ga. 625, disUnsruishing Sioith v. City of
Atlanta, 75 Ga. 110.
«8« Baltimore & P. R. Co. v. Fifth Baptist Church, 137 U. S. 508, 11 Sup.
<jt 185, coUectlng cases page 575, 137 U. S., and page 185, U Sup. Ct
SBT3 Bl. Comm. S 220; McCoy v. Danley, 57 Am. Dec. 680.
288 Bynie v. Minneapolis & St K R. Co., 3S Minn. 212. 36 N. W. 339; Sloggy
w. DUworth, 38 Minn. 179, 36 N. W. 451.
«89 Paddock v. Somes, 102 Mo. 226, 14 S. W. 746.
290 As applied to draining of surface water on plaintiff's ground, Rychlicki
tr. City of St I^uis, 115 Mo. 662, 22 S. W. 908.
^•11 Burrill, Prac. 237.
414 KKMKDIBS. [Ch. 5
most universally provided by statute that, as to certain trespasses,
— conspicuously, where ornamental shrubs and trees are injured, —
double or treble damages may be awarded.**' Bimilar provisions
are common with respect to killing stock.*** The legislature has
the power to provide for the recovery of a certain sum, as punitive
damages, where an injury is caused by an illegal act, though the
same illegal act may subject the offender to a criminal prosecution.***
Where a general verdict is returned under such a statute, the
presumption is that it includes all the damages to which the plain*
tiff is entitled.**" However, it has been held that the better prac-
tice is for the jury to And for single damages in terms, and for the
court, on motion, to double or treble them, as the case may re-
quire.*** Such statutes are penal. Therefore they are strictly con-
strued.**'
Damages for Death by Wrongful Act.
Where damages are awarded for death by wrongful act, ordinarily
both the cause of action and the extent of recovery are created and
determined by statute.*** The ordinary statutory extent of recov-
ery is the reasonable expectation of pecuniary benefit of the statu-
tory beneficiaries.*** It is commonly (but not invariably) provided
2*2 Yocum V. Zahner, 1(52 Pa. St. 408, 29 Atl. 778; Brown v. State, 100 Ala.
92, 14 South. 701; Humes v. Proctor, 73 Hun, 265, 26 N. Y. Supp. 315. Berg
V. Baldwin, 31 Minn, 541, 18 X. W 821; Potulnl v. Saunders, 37 ^Unn. 517,
35 N. W. 310.
2»» Spoalman v. Missouri Pac. R. Co., 71 Mo. 434; Scott v. St. Louis, I. M.
& S. R. Co., 75 Mo. 136; Henderson v. Wabnsli R. Co., 81 Mo. 605.
294 State V. Schoonover, 135 Ind. 520, 35 N. E. 119. Cf. State v. Stevens,
103 Ind. 55, 2 N. E. 214. But see dissenting opinion of Judge EUiott.
2»B Tait V. Thomas, 22 Minn. 537; Livingston v. Platner, 1 Cow. (N. Y.) 175.
206 Cross V. U. S., Gall. 26, Fed. Cas. No. 3,4;W; 1 Sedg. Dam. (7th Ed.) 588;
1 Suth. Dam. 820; Royse v. May, 93 Pa. St. 454; Chipmau v. Emeric, 5 Cal.
2^9; Palmer v. York Banls, 18 Mo. 166; Shrowslnuy v. Bawtlitz, 57 Mo. 414;
Osburn v. Lovell, 36 Mich. 246. It would seem that, to entitle plaintiff to
double or treble damages, the complaint must distinctly refer to the statute.
Livingston v. Platner, supra. And see Strange v. Powell, 15 Ala. 452.
2 07 Sedg. St & Const. Law, 284.
20 8 Ante, p. 330, "Death by Wrongful Act."
2 09 Kelley v. Central R. Co., 48 Fed. 00.5; Bodon v. Demwolf, 56 Fed. 846.
Loss of companionship or society, e. g. of a hu-sbaud. is not an element of
damage. Schaub v. Railroad Co., 100 Mo. 74, 10 S. W. 924; Atchison, T. &
CI). 5] DAMAGES. 415
that the recovery shall, under no circumstance, exceed a stated
amount.*®* Of such a statute, Judge Parker said in Dwyer v. Rail-
way Co.: '®^ *TVhen we have a statute so barbaric, and almost bru-
tal, as to prohibit the consideration by the jury of that terrible
agony, grief, and suffering of the faithful wife and her children for
their loss by death of such a husband and father as Dwyer, we
should award fairly compensatory damages. The award should be
made with a reasonably liberal spirit Under this statute, man i»
considered only an animal, — ^a beast of burden, like a horse or a
mule, — with nothing to be considered, when he is killed by negli-
gence, but his earning capacity. Then, under such a condition^
when his earning power is fairly shown, and manifestly the jury
have not gone beyond it, in giving damages to his wife and children,
we cannot infer that they have done that which is shocking to its
sense of justice, or that they acted from passion or prejudice.*'
S. F. K. Co. V. Wilson, 4 U. S. App. 25, 1 O. C. A. 25, 48 Fed. 57. But see
Harklns v. Car Co., 52 Fed. 724. Nor can damages be given for the pain and
suffering of deceased, nor the wounded feelings or grief of his relatives.
Kelley v. Central R. Co., 48 Fed. 603; Cheatham v. Red River Line, 56 Fed.
248; The Corsair, 145 U. S. 335, 12 Sup. Ct. 949.
800 Cooley, Torts, 310; 5 Am. & Eng. Enc. Law, 128, note 2.
801 52 Fed. 87-90. As in California. Code Civ. Froc. Cal. § 377; In re Hum-
boldt Lumoer Manufrs* Ass'n, 60 Fed. 428. In Colorado a parent may recover
damages for the death of a child, although the latter never contributed to the
parent's support. MoUie Gibson Consolidated Mining & Milling Co. v. Sharp
(Colo. App.) 38 Pac. STiO. The limit in many of the state statutes, as well as
that of congress, in such cases should have weight in fixing the amount of
damages to be recovered. Cheatham v. Red River Line, 50 Fed. 24S-250. In
this case Billings, J., said: "There are no tables of productive lives. It is
human experience that some lives are almost worthless to those dependent
on them, and some which are and which promise to be support and comfort
come to produce nothing but shame and sorrow. In fixing the value of
human life, and in trying to be just alike to the injured and the injui-er, no
chimerical estimate should be made, but rather should there be a resort to
sober judgment." Limiting jury to certain mathematical calculations is erro-
neous. St Louis, I. M. & S. Ry. Co. v. Needham, 10 U. S. App. 330, 3 C. C.
A. 129, 52 Fed. 371. In Harklns v. Car Co., 52 Fed. 724, It was held that the
wife*s maximum of recovery ivas not necessarily limited to a sum which would
produce an annual income equal to one-half his annual earnings. Accordingly,
a verdict of $7,000 for the death of a day laborer was sustained.
416 BEMEDIIS* [Ch. 5
(XvU Damage Acts.
In many states it is expressly enacted that liqaor dealers may be
held liable in civil damages for harm caused by the sale of intoxi-
cants.»^»
Boa Black, iDtox. Liq. c 13; Cooley, Torts, pp. 283-^07. Among the more
recent illustrative cases on this subject are State v. Cox (Kan. App.) 40 Pac.
816; Cornelius v. Hultman (Neb.) 62 N. W. 891; Franklin v. Frey (Mich.) 63
N. W. 970; Ford v. Cheever. Id. 976; Plucknett v. Tippey (NBb.) 63 N. W. 845.
Part II.
SPECIFIC WRONO-S.
CHAPTER VI,
WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON.
141. False Imprisonment— Definition.
142. Who Liable.
143. Defenses.
144-146. Justification.
147. Mitigation.
148. Assault— Definition.
149. Battery— Definition.
150. Assault and Battery— Force and Intent
151. Defenses.
152. Justification.
153. Mitigation.
FALSE IMPRISONMENT.
141. False imprisonment is the unlawful and total restraint
of the liberty of the person.
Legality of Restraint.
The restraint must be illegal, but need not be malicious. Law-
ful authority to restrain the freedom of locomotion of another per-
son is a full defense to an action for false imprisonment.^ At com-
mon law, the arrest of a privileged person was not the basis for an
action of false imprisonment, because such arrest is voidable only,
and not void. It could not constitute a trespass, and so was unavaila-
ble and insufficient as a foundation for the action.^ The arrest of
1 Dielil ▼. Frlester, 37 Ohio St. 473. Post, p. 424, "Legal Authority as Jus-
tification." Where a firm holds property in trust, a misappropriation by one
partner, with the knowledge and assent of ttie other, is a misappropriation
Dy the latter, so far as the right to arrest him in a civil action for a breach
of the trust is concerned. Boy kin v. Maddrey, 114 N. C. 89, 19 S. E. 106.
Patteson, J., in Bird v. Jones, 7 Adol. & B. (N. S.) 742-752, 7 Q. B. 742. And
see Bauer v. Clay, 8 Kan. 580, and Come v. Knowles, 17 Kan. 440.
2 Deo V. Van Valkenburgh, 5 Hill, 242; Kreiser v. Scofield, 10 Misc. Rep.
350, 31 K. Y. Supp. 23; SiAith v. Jones, 76 Me. 138; 7 Am. & Eng. Bnc. Law,
694, and notes; 3 Lawson, Rights, Rem. & Prac. 1067, and note; Cooley,
Const. Lim. (5th Ed.) 162, note.
LAW OF T0KT8— 27
417
418 WRONGS AFFECTING SAFETY AND FHERDOH OF PERSON. [Ch. 6
the person may have been entirely proper, but subsequent deten-
tion, as for an unreasonable time, or refusal to accept any or rea-
sonable bail, may constitute false imprisonment.' At common
law, trespass, not case, lay for false imprisonment* Accordingly,
liability proceeded, not on the theory of evil motive or of negligence,
but of acting at peril.*^ Therefore, to entitle the plaintiff to recov-
er, it is not necessary for him to allege or prove either malice or
want of probable cause.* Malice is material only so far as the
question of damage is concerned.^ It is immaterial whether the
detention be accomplished with or without legal proces&'
> Manning v. Mitchell, 73 Ga. 660; Ocean Steamship Go. v. WilUams, 99
Ga. 251; Gibbs v. Randlett, 58 N. H. 407. But it Is not an actionable trespass
for a sheriff to arrest the accused on a warrant procured by defendant In one
county, take him into a second for identification, and finally into a third.—
his own coanty. Knight v. International & G. N. Ry. Co., 9 G. O. A. 376, 61
Fed. 87. Gf. Kent v. Miles, 65 Vt. 582, 27 Atl. 194.
4 1 Chit PI. (14th Am. Ed.) p. 185; Withers v. Henley, Gro. Jac. 379; Maher
T. Ashmead, 30 Pa. St. 344; Bebee v. Steel, 2 Vt 314; Kent v. MUes, 65 Vt.
582, 27 Atl. 194; Knight v. International & G. N. Ry. Co.. 9 G. G. A. 376, 61
Fed. 87; Castro v. De Uriaite. 12 Fed. 250; HoUy v. Carson, 39 Ala. 345;
Piatt V. Niles, 1 Edm. Sel. Gas. (N. T.) 230; Price v. Graham, 3 Jones (N. G.)
545. In Michigan, trespass on the case lies for false Imprisonment (by stat-
ute), and the two may be joined in one action. Moore v. Thompson, 92 Mich.
498, 52 N. W. 1000. And see Barhydt v. Valk, 12 Wend. 145; Nebenzahl v.
Townsend, 61 How. Prac. 353.
» State V. Hunter, 106 N. G. 790, 11 S. W. 366; Landrum v. Wells (Tex. Civ.
App.) 26 S. W. 1001.
« Cunningham v. East River Electric Light Go. (Super. N. Y.) 17 N. Y. Supp.
372; King v. Johnston. 81 Wis. 578. 51 N. W. 1011; Rich v. Mclneiy (Ala.)
15 South. 663; Boaz v. Tate, 43 Ind. 60; Akio y. Newell, 32 Ark. 605; Boeger
V. Langenberg, 07 Mo. 390, 11 S. W. 223; Rosen v. Stein (Sup.) 7 N. Y. Supp.
368. See Smith v. Botens, 59 Hun, 617, 13 N. Y. Supp. 222; Glow v. Wright,
Brayt. (Vt.) 118; Krebs v. Thomas, 12 lU. App. 266; Neall v. Hart, 115 Pa.
St. 347, 8 Atl. 628; Firestone v. Rice, 71 Mich. 377, 38 N. W. 885; Olmstead
V. Poland (Sup.) 6 N. Y. Supp. 130; Mitchell v. Malone, 77 Ga. 301; Going
V. Dinwiddle, 86 Gal. 633, 25 Pac. 129; Murray v. Friensb«-g (Sup.) 15 N.
Y. Supp. 450.
T Johnson v. Bouton, 35 Neb. 898, 53 N. W. 995; Hewitt v. Newburger, 66
Hun, 230, 20 N. Y. Supp. 913. But see Beebe v. De Baum, 8 Ark. 510; Akin
V. NeweU, 32 Ark. 605; Chrisman v. Carney, 33 Ark. 316; Ruffner v. Williams,
3 W. Va. 243; Frazier v. Turner, 76 Wis. 562, 45 N. W. 411.
« Lynch v. Metropolitan El. Ry. Co., 90 N. Y. 77; Hildebrand v. McCrum,
101 Ind. 61.
Ch. 6] , FAI-SK IMPRISONMENT. 419
Sufficiency of Restraint.
The restraint must be total, not partial. A man is not impris-
oned who has an escape opened to him. A mere partial obstruc-
tion of his will does not constitute an actionable restraint of his
liberty. "A prison may have its boundary, large or narrow, visible
or tangible, or, though real, still in the conception only. It may
be movable or fixed, but a boundary it must have, and that bound-
ary the party imprisoned must be prevented from passing. He
must be prevented leaving that place within the ambit of which
the party imprisoning would confine him, except by prison breach.'*
Thus, where one entered an enclosure by which another had ap-
propriated a part of the public highway for seats to view a boat
race, and was prevented from going onward, but was allowed to re-
main or go back as he chose, it was held that there was no total re-
straint, or forcible detention against his will, constituting false im-
prisonment.'
Every confinement of the person is an imprisonment, whether it
be in a common prison or a private house, or in the stocks, or even
by forcibly detaining one in the public street.^® Detention within
railway gates until fare is paid may constitute such restraint.**
So, where conspirators enticed a man into a room to see their sister,
and then charged him with having agreed to pay a large sum for
breach of promise to marry her, and intimidated him into admit-
ting it, his suit for false imprisonment was sustained. ^^ A for-
tiori, keeping a suspect in confinement an unreasonable time, with-
out taking him to a magistrate, is actionable restraint^' And the
» Bird V. Jones. 7 Q. B. 742, 7 Adol. & B. (N. S.) 742, 752; HUl v. Taylor,
50 Mich. 549, 15 N. W. 890; Wright v. Wilson, 1 Ld. Raym. 739; Mowry v.
Chase, 100 Mass. 79; Hart v. Flynn, 8 Dana (Ky.) 190; French v. Bancroft, 1
Mete. (Mass.) 502.
10 3 Bl. Comm. p. 127; Tear Book, Book of Assizes, fol. 104, p. 85.
11 Lynch v. Metropolitan Bl. Ry. Co., 90 N. Y. 77.
19 Hlldebrand v. McCrum, 101 Ind. 61. So, where a cashier locked plaintiff
in a bank. Woodward v. Washburn, 3 Denio, 369.
18 Cochran v. Toher, 14 Minn. 385 (Gil. 293); Lavlna v. State, 63 Ga. 513;
Anderson v. Beck, 64 Miss. 113, 8 South. 167; Hoyes v. Mitchell, 69 Ala. 452;
Hopner v. McGowan, 116 N. Y. 405, 22 N. B. 558.
420 WRONGS AFFECTING 8AFKTY AND FREEDOM OF PERSON. [Ch. 6
plaintiff may recover although only a portion of the time of the im-
priBonment was illegal.**
Actual manual touching of the body is not necessary to consti-
tute false imprisonment ''It is absurd to contend that every im-
prisonment involves a battery." *• Thus, if the officer tells defend-
ant that he arrests him, and locks him in a room, there is an ar-
rest** So, to make one, through fear, pay fare on a public ferry,
by threatening not* to allow him to leave otherwise, is false impris-
onment, although the detention was only for 10 or 15 minutes.*^
Even so slight an interference with freedom of locomotion as be-
ing shadowed by a detective is sufficient restraint to be the basis of
an action for false imprisonment**
While, in general, no actual force or compulsory seizure is nec-
essary to constitute an arrest or seizure, there must be words used
and acts done, towards the person to be arrested, clearly showing
an intention to arrest, and his submission must be to a threatened
and reasonably apprehended force.** There must be detention
against the will of the plaintiff. ''For," said Earl, J., in Moses y.
Dubois,** "if he voluntarily place himself in a situation where an-
other may lawfully do that which has the effect of restraining liber-
ty, especially if he refuses to depart when he may, he cannot com-
plain that he is unlawfully imprisoned against his will." It is,
therefore, absolutely essential that plaintiff should know of the im-
prisonment. Hence, a schoolboy, who was detained from his fami-
ly by his schoolmaster, to enforce payment of tuition fees, could not
recover in trespass for assault and false imprisonment when it was
1* Bauer v. Clay, & Kan. 580. A poUce officer who arrests a person on a
criminal charge without a warrant, and detains him an unreasonable time
without arraigning him before a magistrate, and without any direction of a
iimgisti'ate. is liable as a trespasser ab Initio. Pastor v. Regan, 9 Misc. Rep.
547, 30 N. Y. Supp. 657.
i» Emmett v. Lyne (1805) 1 Bos. & P. (N. R.) 255; Genner v. Sparks (1704)
1 Salk. 79; Searls v. Viets, 2 Thomp. & C. 224, commenting on earlier casea
i« Williams v. Jones, Hardw. Cas. Temp. 298.
17 Smith V. State, 7 Humph. (Tenn.) 43. Et vide McNay v. Stratton, 9 III.
App. 215.
18 Fortheringham v. Adams Exp. Co., 36 Fed. 252.
i» Greathouse v. Summerfleld, 25 111, App. 296.
ao 1 Dudley (S. C. Law) 209; Spoor v. Spooner, 12 Mete. (Mass.) 281.
Ch. 6] FAI^E IMPRISONMENT. 421
not shown that he knew of the restraint upon his person.** There
must be some sort of personal coercion. Merely to inform a man
that he is under arrest and not take him into custody does not con-
stitute false imprisonment.** If an oflScer informs a man that he
is under arrest, and thereupon the arrested person volunteers to go
with the oflScer and meet the charge, there is no false imprison-
ment; ** but it would be otherwise if he went upon compulsion.**
Detention against desire, prevention from going where one may
wish, is false imprisonment**
SAME— WHO LIABLE.
142. All persons who accomplish, procure, aid, or assist
in an nnlawfol detention are liable as principals,
liability may also attach by ratification, or by
virtue of relationship of parties.^
Where one has directly and unlawfully restrained another, as in
case of an officer who improperly arrests, he is the immediate
21 Herrinjr v. Boyle, 1 Cromp., M. & R. 377.
22 Hill v. Taylor, 50 Mich. 549, 15 N. W. 809; Greathouse v. Summoificld,
25 111. App. 296; Bnishaber v, Stegemann, 22 Mich. 267.
23 Of. Genner v. Sparkn, 1 Salic. 79; Homer v. Battyn, Bull. N. P. 62; War-
ner V. Rlddlford, 4 C. B. (N. S.) 180 (205); Chlnn v. Morris. 2 Car. & V. 361;
Russen v. Lucas. 1 Car. & P. 153,— with Williams v. Jones, Hardw. Cas. Temp.
298; Arrowsmith v. Le Mesmier, 2 Bos. & P. (N. R.) 211; I^wson v. BuziDes,
3 Har. (Del.) 417; Coppinger v. Bradley, 5 Ir. Law T. 282; Peters v. Stanway.
6 Car. & P. 737; Grainger v. Hill, 4 Bing. N. C. 212; Strout v Gooch, 8 Greenl.
(Me.) 126; Marshall v. Heller, 55 Wis. 392, 13 N. W. 236; Moore v. Thompson,
92 Mich. 498, 52 N. W. 1000 (see dissenting opinion by Grant, J.); Gold t.
BisseU, 1 Wend. 210; Emery v. Chesley, 18 N. H. 202; Mooney v. Chase, 109
Mass. 79.
24 Pike V. Hanson, 9 N. H. 491.
26 Wood V. Lane, 6 Car. & P. 774; Chinn v. Morris, 2 C. B. 361; Pocock v,
Moore, Ryan & M. 321. Wherefore, when plaintiff was hoaxed into a paid
ride for a horse thief, he could not complain, because he went voluntarily.
State V. Lunsford, 81 N. C. 528; Hawk v. Ridgway, 33 111. 473; Sorenson v.
Dundas, 50 WMs. 335, 7 N. W. 259; Comer v. Knowles, 17 Kan. 436.
26 In 7 Am. & Eng. Enc. Law, 665, the cases on false imprisonment are
collected by Mr. James Kerr, as to liability of parent, guardian, teacher, and
other persons, under direct titles. It is beyond the scope of this book to go
into particulars on this point.
422 WRONGS AFFECTIKG SAFETY AND FREEDOM OF PERSON. [Ch. 6
wrongdoer, and is, of course, liable.^^ He may be liable alone, or
jointly with others.** It has been said that false imprisonment is
an act of trespass, a direct wrong in which the defendant must hare
personally participated."® The defendant, however, is liable if
he directed the arrest.'* But merely giving testimony as a com-
ST In an action for false Imprisonment, against a sheriff, an instruotion is
misleading which states that if defendant had giood reason to and in good
faith did believe that plaintiff was guilty of adultery he was warranted in
making the arrest on such charge, and holding him therefor, since a prosecu-
tion for adultery can only be instituted by the husband or wife of one of the
guilty persons, and an officer, whatever his suspicions may be, has no right
to make such an arrest Filer v. Smith, 96 Mich. 347, 55 N. W. 999; TwiUey
V. Perkins. 77 Md. 252, 28 Atl. 288; Landrum v. Wells (Tex. Civ. App.) 26
8. W. 3001. And, see, in Busteed v. Parsons, 54 Ala. 393, 25 Am. Rep. 688,
seven rules are formulated by the editor as to the liability of Judges and
magistrates.
*8 Where a mittimus is void for not properly stating the cause of commit-
ment, the person who at the request of the justice draws up the commitment,
as well as those who arrest him thereunder, and take him to and imprison
him in jail, are liable for false imprisonment. Glyma v. Kennedy, 84 Conn.
310, 29 Atl. 539. As to an attorney advising, and the sheriff executing, a
void warrant, see Tenney v. Harvey, 63 Vt. 520, 22 Atl. 659; sheriff and dep-
uty. Wolf V. Perryman, 82 Tex. 112, 17 S. W. 772; sheriff and judge, ZeUer
V. Martin, 84 Wis. 4, 54 N. W. 330; father and son, Carson v. Dessau (Sup^.
N. Y.) 13 N. Y. Supp. 232; Id., 142 N. Y. 445, 37 N. B. 493. Where plaintiff was
arrested without a warrant by an officer at the request of defendant, the fact
that in an action against both for fulse imprisonment the officer was found not
guilty, and defendant guilty, is no giround for setting aside the verdict Bur-
roughs V. Eastman, 101 Mich. 419, 50 N. W. 817.
20 Brown v. Chadsefy, 39 Barb. 253-261.
80 Hopkins v. Crowe, 7 Car. & P. 373, 4 Adol. & B. 774. Compare Davis
V. Russell, 5 Bing. 354; Ball v. Horrigan, 65 Hun, 621, 19 N. Y. Supp. 913.
But merely calling attention to violation of ordinance does not attach liabil-
ity. Veneman v. Jones, 118 Ind. 41, 20 N. B. 644. Compare Barthe v, Iiar-
quie, 42 La. Ann. 1312, 7 South. 80; McGarrahan v. La vers, 15 R I. 302, 3
Atl. 592. Et vide Hawkins v. Manston (Minn.) 59 N. W. 309. Thus, where
defendant went to the magistrate's office, said he wanted a warrant for plain-
tiff, stated the facts, swore to the information, procured the warrant, and
handed It to the officer to serve "right away," offered to provide a "rig," and
later sent word to the officer where he could (and did) find plaintiff, the in-
formation and warrant being void, as failing to state a crime, defendant was
liable for plaintiff's false imprisonment thereunder. Hewitt v. iiewburger,
141 N. Y. 538, 36 N. E. 593; Id., 66 Hun, 230, 20 N. Y. Supp. 913.
r
Ch. 6] FALSE IMPRISONMENT. 423
plaining witness, or honestly making a complaint, does not attach
liability. Such a witness may be liable if he has directed the
officer to take the plaintiff into custody.'^ Liability may attach
because of ratification or adoption of the false imprisonment**
It may arise out of relationship of master and servant, from appli-
cation of respondeat superior, on principles already considered.''
It is subject to exemptions previously discussed.'*
»i Lock V. Aflhton, 12 Q. B. 870; Hopkins v. Crowe, 7 Car. & P. 373, 4 Adol.
& B. 774; Brown v. Chapman, 6 C. B. 366; West v. SmaUwood, 3 Mees. &
W. 418; Barber v. Rolllnson, 1 Cromp. & M. 330; Leigh v. Webb, 3 Bsp. 165;
Carratt v. Morley, 1 Q. B. 18; Brown v. Chadsey, 39 Barb. 253; Nowak v.
WaUer, 56 Hun, 647, 10 N. Y. Supp. 1»9; Booth v. Kumis, 55 N. J. Law, 370,
26 Atl. 1013; Murphy v. Walters, 34 Mich. 180: Coffin v. Varlla (Tex. Civ.
App.) 27 S. W. 956. Where one requests an officer to arrest another. It is
Immaterial whether or not he acts maliciously, or whether or not there is
want of probable cause, unless the officer makes the arrest because it is re-
quested, and not of his own volition. Rich v. Mclnery (Ala.) 15 South. 003.
Further, as to distinction between action, interference, and mere submission
to judgment of tribunal, see Green v. Elgle, 5 Q. B. 99; Austin v. Dowling,
L B. 5 C. P. 534.
ts Though plaintiff was not arrested by defendant's order, the arrest is rati-
fied and constitutes a technical false imprisonment, where defendant after-
wards ordered the officer to detain plaintiff, though it was only for a few min-
utes. Callahan v. Searles, 78 Hun, 238, 28 N. Y. Supp. 904. Adopted, Clark
v. Starin, 47 Hun, 345; Wachsmuth v. Merchants' Nat. Bank, 96 Mich. 426,
56 N. W. 9; Travis v. Standard, etc., Ins. Co.. 80 Mich. 288; Ante, p. 43,
"Ratification."
S8 Gillingham v. Ohio R. R. Co., 35 W. Va. 588, 14 S. E. 243; Cunningham
V. Seattle Electric Railway & Power Co., 3 Wash. St. 471, 28 Pac. 745; Pln-
kerton v. GUbert, 22 111. App. 568; Pearce v. Nee^Jham, 37 111. App. 90;
Travis V. Standard Life Ace. Ins. Co., 86 Mich. 288, 49 N. W. 141; Ndmltz v.
C?onrad. 22 Or. 1(54. 29 Pac. 548; Duggan v. Baltimore & O. Ry., 159 Pa. St.
248, 28 AtL 182, 186. A railroad company is not liable for the action of its
local ehedk clerk of freight in prosecuting one without pro'bable cause, for the
theft of articles from its cars. Flora v. Russell (Ind. Sup.) 37 N. E. 593. A
railroad company is liable for the false arrest and imprisonment by its depot
agent of a man who used a water closet at its depot set apart for ladies only.
Illinois Cent. R. Co. v. King, 69 Miss. 852, 13 South. 824. In an action for
false imprisonment, the testimony of one who arrested plaintiff that he did
so by order of defendant, without showing the relationship between defend-
ant and witness, does not justify a judgment against defendant Hawkins
V. Manston (Minn.) 59 N. W. 309.
«* Judge acting without jurisdiction, Rudd v. Darling, 64 Vt 456. 25 Atl.
424 WRONGS AFFECTING SAl^BTY AND FBEEDOfii OF PERSON. [Ch. 6
SAME^DEFENSES.
143. Defenses peculiar to actions for false imprisonment
may operate by way of —
(a) Justification, or
(b) Mitigation.
144. In an action for false imprisonment a complete justi-
fication is made out where it is shown that —
(b,) The arrest was under a sufficient warrant, or
(b) The arrest was lawful without a warrant.
146. An arrest under a warrant, of the person described
therein, for the oflSense charged, is justified when
the warrant is regular on its face and is issued by
a court of competent jurisdiction under regular
proceedings in accordance with valid legislation,
even though the warrant is, in ihct, irregular and
voidable, but not when it is void.
146. Both by common law and, commonly, by statute, an
arrest without a warrant may be justified, de-
pendent on the person making the arrest (whether
an officer of the law or a private person),^ the dig-
nity of the offense, and the time and place of its
commission.
JusUfication by Judicial Warrant.
A sufficient judipial warrant tates away from an imprisonment
the essential element of illegality, and completely justifies an ar-
479. Justice and irregular process, Austin v. Vrooman, 128 N. Y. 229, 28 N.
B. 477; Booth v. Kurrus. 55 N. J. Law. 370. 26 Atl. 1013; Butler v. Potter.
17 Johns. 145. City recorder, Bninner v. Downs. 63 Hun, 626, 17 N. T. Supp.
6.*^; Boutte v. Emmer. 43 La. Ann. 980« 9 South. 921. Compare Thompson
Y. Whipple. 54 Ark. 203, 15 S. W. 004. Whether acting in pnblic or private
capacity, i. e. as police oflicer or watchman, or as a servant, see Piatt v.
Brown. 80 Tex. 608. 16 S. W. 443; Norfolk & W. R. Co. v. Galliher, 89 Va.
639, 16 S. E. 935; Tolchester Beach Imp. Co. v. Steinmder, 72 Md. 313, 20
Atl. 188; Southern Pac. Co. v. Hamilton. 4 C. C. A. 441, 54 Fed. 468. Bt vide
Oppenheimer v. Manhattan Ry. Co., 63 Hun, 633, 18 N. Y. Supp. 411; Wells
V. Washington Market Co., 19 D. C. 385*
Gh. 6] FALSE IMPRISONMENT. 425
rest** If the warrant be wrongfully obtained, although upon
sufficient legal proceedings, the civil action should be malicious
prosecution, and not false imprisonment.**
It is by no means clear when a warrant is not sufficient to justify
the arrest. If it be void on its face, it is, of course, not sufficient.'^
To be regular on its face, the warrant must at least charge the
commission of a criminal wrong,** and conform in other respects
with statutory provisions and recognized practice.** If the arrest
is made under process which is voidable only, because of irregu-
larities in the proceedings under which the writ was issued, it
would seem that the warrant may not be collaterally attacked,**
SB Blarks v. Townsend, 97 N. Y. 500; Jeffries v. McNamflra, 49 Ind. 142-145,
collecting? cases: Joiner v. Ocean S. S. Co.. 86 Oa. 238, 12 S. E. 361; Knight
V. Railway Co., 9 C. C. A. 376, 61 Fed. 87; Flnley v. Gutter Co., 99 Mo. 559,
13 S. W. 87: Lieb v. Shelby Iron Co., 97 Ala. 626, 12 South. 67; Pratt v.
Brown, 80 Tex. 608, 16 S. W. 443; Kent y. Miles, 65 Vt. 582, 27 Atl. 194.
s« Hobbs Y. Ray (R. I.) 25 Atl. 694; Murphy y. Martin, 58 Wis. 278, 16 N.
W. 603. Post, p. 830, "Malicious Prosecution."
>7 Gelzenleuchter y. Niemeyer, 64 TVis. 316, 25 N. W. 442; Id., Chase, Lead.
Cas. 88, collecting cases on page 322, 64 Wis., and page 442, 25 N. W.: Mc-
Lendon y. State. 92 Tenn. 520, 22 S. W. 200; Emery y. Hapgood, 7 Gray,
55; Gold y. Bissel, 1 Wend. 210; Blythe y. Thompson, 2 Abb. Prac. 468. And
see Wachsmuth y. Bank, 96 Mich. 426, 56 N. W. 9; Buzzell y. Emerton, 161
Afass. 176. 36 N. E. 796.
S8 Hall Y. Rogers. 2 Blackf. (Ind.) 429; Frazier y. Turner. 76 Wis. 562. 45
N. W. 411; Collins y. Brackett, 34 Minn. 339, 25 N. W. 708. The officer must
take notice if the warrant is Yoid on its face. Grumond y. Raymond, 1 Conn.
39; Lewis y. Avery, 8 Vt. 287; Clayton y. Scott, 45 Vt 386; Fisher y. McGirr,
1 Gray, 1; Ely y. Thompson, 3 A. K. Marsh. 76; Grace y. Mitchell, 31 Wis.
533.
s» In Minnesota, the warrant need not show all facts essential to consti-
tute an indictment. It must charge that at least an offense was committed,
and that there was reason to belicYe that the accused committed it Col-
lins Y. Brackett. 34 Minn, 339, 25 N. W. 708. As to essentials for arrest at
night, in New York, see Murphy v. Kron, 20 Abb. N. C. 259. The warrant
for arrest for larceny, in Wisconsin, must show value of property stolen, or
it is no defense. Frazier y. Turner, 76 Wis. 562, 45 N. W. 411.
*o Jennings y. Thompson, 54 N. J. Law, 55, 22 Atl. 1008; Swart y. Rickard,
74 Hun. 339, 26 N. Y. Supp. 408; Aldrieh v. Weeks, 62 Vt 89, 19 Atl.
115: Fischer y. Langbein, 103 N. Y. 84, 8 N. B. 251; Id., 62 How. Prac.
238; Everett v. Henderson, 146 Mass. 89, 14 N. E. 932; Johnson Y. Morton,
94 Mich. 1, 53 N. W. 816. Such a writ has been held to be a justification.
426 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. 6
and that it justifies an officer in making an arrest under it. Ir-
regularities in the process may be waived, as by giving bail.*^
Where, however, the warrant is void, either from material defect
in its language, for want of jurisdiction of the court, or because of
the court having no ix)wer to issue it, the sheriff who executes it,
the attorney who prepares it,** the client who authorizes it, and the
witness who causes the arrest, all are liable at common law for the
false imprisonment/' It would seem that if the legislation un-
der which the warrant is issued is invalid, the warrant may still be
a good defense.** If, however, the officer arrests a man not de-
scribed in the warrant, such authority may mitigate punitive dam-
ages, but will not justify the arrest.** And, au contraire, arrest of
the right x)erson by the wrong name, through misnomer in the pro-
<^ss, without allegation that the true name is unknown, has been
held to be false imprisonment.*^
An illegal arrest for larceny under an insufficient warrant can-
not be justified, in an action for damages on that account, as an ar-
«ven where the officer knew of facts inyalidating It. Marks v. SuUivan, 0
Utah, 12, 33 Pac. 224. And such process, when set aside, leaves acts done
under it without justification, and Illegal. Everett y. Henderson, 146 Mass.
S9, 14 N. E. 932, cases collected at page 02, 146 Mass., and page 932, 14 N. E.
41 Neimitz y. Conrad, 22 Or. 164, 29 Pac. 548. But submitting to examina-
tion on oath does not. Carleton y. Akron Sewer Pipe Co., 129 Mass. 40.
And see BuzzeU v. Emerton, 161 Mass. 176, 36 N. E. 796. And see Reynolds
T. Church, 3 Calnes (N. Y.) 274; Dale y. Radcliffe, 25 Barb. (N. Y.) 333.
*2 Barker y. Braham, 2 W. Bl. 866, Bigelow, Lead. Cas. 235; Pig. Toits,
300. The courts must not only have jurisdiction of the subject, but also of
the process. Grumon y. Raymond, 1 Conn. 39; Vauglm y. Congdon, 56 Vt.
111. But see, ante, p. in, ''Exemption of Judicial Officers as to Process."
4« Hewitt y. Newburger, 141 N. Y. 538, 36 N. E. 593, oyerrullng Id.. 66
Hun, 230, 20 N. Y. Supp. 913.
** Brooks y. Mangan, 86 Mich. 576, 49 N. W. 633; Trammel y. Russellyille.
34 Ark. 105; Wheeler v. Gavin. 5 Ohio Cir. Ct. R. 240. Compare Judson v.
Reardon, 16 Minn. 431 (Gil. 387) ; Gifford v. Wiggins, 50 Minn. 401, 52 N. W
1)04. But see State v. Hunter, 106 N. C. 796, 11 S. E. 306.
«5 Holmes y. Blyler, 80 Iowa, 305, 45 N. W. 756; Formwalt y. Hylton, 66
Tex. 288, 1 S. W. 376; Mitchell y. Malone, 77 Ga. 301; Rybum y. Mooi-e. 72
Tex. 85, 10 S. W. 393; Dunston y. Paterson, 2 C. B. (N. S.) 495. Compare.
Knight y. International & G. N. Ry. Co., 9 C. C. A. 376, 61 Fed. 87.
4« Hoye y. Brush, 1 Man. & G. 775; Scheer y. Keown, 29 Wis. 586.
Oh. 6] FAl^E IMPRISONMENT. 427
rest for a different offense, such as reckless discharge of firearms,
or resisting an officer. ^^
Justification withoxU Warrant,
An arrest without a warrant may be justified by public authority.
At common law, a public police officer is justified in arresting a
person whom he has reasonable cause to suspect has committed,
or is about to commit, a felony,*' provided the person arrested be
above the age of seven years,*" and in detaining him until he can
be brought before a magistrate for examination.^^ Where, how-
ever, the offense is only a misdemeanor, such an officer is not jus-
tified in making an arrest without a warrant unless a breach of
the peace is threatened.^^ He is justified in arresting, without a
warrant, a person committing a breach of the peace in his pres-
ence,'^^ and in imprisoning him so long as,*^' but not longer than,
there is danger of a renewal of the offense.
A private individual is justified in arresting a person for felony
only where the felony has been actually committed, and there are
reasonable grounds for suspicion that the person arrested has com-
mitted it.*^* A private individual may also arrest a person actual-
ly committing a breach of the peace, but not after the affray has
ended.*^'
*7 Murphy v. Kron, 20 Abb. N. C. 259.
*8 4 Bl. Comm. 292; Codd v. Cabe, 1 Exch. Div. 352, 45 Law J. Bxch. 101;
Galliard v. Laxton, 2 Best & S. 363; Beckwlth v. Philby, 6 Barn. & C. 635, 9
Dowl. & R. 487; Buckley v. Gross, 3 Best & S. 566, 32 Law J. Q.^. 129.
*» Marsh v. Loader, 14 C. B. (N. S.) 535.
80 Allen V. Wright, 8 C. B. 522; HaU v. Booth, 3 Nev. & M. 316.
fti Quinn v. Heisel, 40 Mich. 576; Griffin v. Coleman, 4 Hurl. & N. 265, 28
Law J. Exch. 134; Fox v. Gaunt, 3 Bam. & Adol. 798; Bowdltc* v. Balchin,
5 Exch. 377.
62 Timothy v. Simpson, 1 Oromp., M. &, R. 757; Moore v. Thompson, 92 Mich.
498, 52 N^ W. 1000; Derecourt v. Corbishley, 24 Law J. Q. B. 313, 5 Bl. & Bl.
188; Josselyn v. McAllister, 25 Mich. 45.
B3 Queen v. Ijesley, 29 Law J. M. Cas. 97.
54 AUen V. Wright, 8 Car. & P. 522; Hall v. Booth, 3 Nev. & M. 316. Whe eas
the public officer may arrest on reasonable grounds of suspicion, even although
no felony has been actually committed. Beckwith v. Philby, 6 Bam. & C.
635. Et vide Stev. Dig. Cr. Proc. c. 12, 1; Hogg v. Ward, 3 Hurl. & N. 417;
27 Law J. Exch. 443.
65 Price V. Seeley, 10 Clark & F. 28; Hawley v. Butler, 54 Barb. 410; Ti.uothy
•
428 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. 6
In America the common law must be construed in connection
with the statutes of each state. Generally, however, the substance
of the rule stated has been preserved."* ^*What is reasonable cause
for suspicion to justify an arrest may be said, paradoxical as the
statement looks, to be neither a question of law nor fact, at any rate
in the strict sense of the terms, — not of fact, because it is for the
judge and not for the jury; and not of the law, because no definite
rule can be laid down for the exercise of the judge's discretion." *^
V. Simpson, 1 Cromp., M. & R. 757. A breach of the i>eace may not, however,
be an actual affray. It Is sufficient to justify an arrest if the conduct on the
pai't of the person arrested directly tends to produce a breach of the peace,—
as continually ringing a door bell without an excuse, Grant v. Moser, 5 Man.
& G. 123; or trj'lng to force one's self into a house In the presence of a mob.
Compare Green v. Bartrom, 4 Car. & P. 308, with Rose y. WUson, 1 Bing. 353,
and Ingle v. BeU, 1 Mees. & W. 516. And see Cohen t. Huskisson, 2 Mees. &
W. 477; Howell v. Jackson, 6 Car. & P. 723; Webster v. Watts, 11 Q. B. 311,
17 Law J. Q. B. 73; Wheeler v. Whiting, 9 Car. & P. 202; Wooding y. Oxley,
Id. 1; Lucas y. Mason, L. R. 10 Exch. 251. Where plaintiff and others were
gathered together in the street, and the officer ordered them to moYe on, and
the others obeyed but plaintiff did not, and he was arrested by the officer, he
can recoYer damages, because one person could not obstruct the street, and
this was no Ylolation of the ordinance without request to disperse. State y.
Hunter, 106 N. C. 796, 11 S. E. 366. As to arrest not authorized by statute, see
Winn Y. Hobson, 54 N. Y. Super. Ct. 330. If, however, the officer arrested
without a warrant, he is liable for committing, without examination, the plain-
tiff, who is entitled to an immediate hearing. Newby y. Gunn, 74 Tex. 455,
12 S. W. 67. ^ . .
66 As to arrest by police officer without warrant on suspicion for felony,
not in fact committed: Rohan y. Sawin, 5 Cush. 281; Eanes y. State, 6
Humph. (Tenn.) 53; Bryan y. Bates, 15 111. 87; Taylor y. Strong, 3 Wend.
3HI; Quinn y. Heisel, 40 Mich. 576; In re Powers, 25 Vt. 261; McCarthy y. De
Armit, 99 Pit. St. 63; Scircle y. Neeves, 47 Ind. 289; Doerlng y. State, 49 Ind.
56; Neal y. Joyner, 89 N. C. 287; Malcolmson y. Scott, 56 Mich. 459, 23 N. W.
166. But see Shanley y. Wells, 71 111. 78; Newton y. Locklin, 77 111. 103;
Pow V. Beckner, 3 Ind. 475; Schmeider y. MoLane, 36 Barb. 495; Phillips Y.
Fadden, 125 Mass. 198; Moore y. Durgln, 68 Me. 148; Kennedy y. Favor, 14
Gray, 200; McLennon y. Richardson, 15 Gray, 74. Arrest by private person,
without warrant, of persons suspected of felony: Wakely y. Hart, 6 Bin.
31(); Com. v. Deacon, 6 Serg. & R. 49; Renck v. McGregor, 32 N. J. Law, 70;
Allen V. Leonard, 28 Iowa, 529; Morley v. Chase, 143 Mass. 396, 9 N. E. 767;
Holley Y. Mix, 3 Wend. 350; Gurnsey v. Lovell, 9 Wend. 320.
07 Pol. Torts, citing Hailes v. Marks, 7 Hurl. & N. 56; 30 Law J. Exch.
'^Si): Lister v. Perry man, L. R. 4 H. L. 521. 535, 540.
Ch. 6] FALSE IMPRISONMENT. 429
Reasonable cause, however, is for the judge, and not for the jury.''
The burden of proof is on the defendant to show facts which would
create reasonable suspicion in the mind of a reasonable man.^*°
The judge may ask the jury whether the defendant acted on an
honest belief, and whether he used reasonable care to inform him-
self of the facts.^*
Private authority may justify interference with (reedom of per-
sonal locomotion. Thus, a schoolteacher, in the exercise of the
right to make and enforce reasonable rules for the regulation of
a school, may without liability detain pupils after school hours.®*
So, by common law, any one might arrest a dangerous lunatic.'"
The justification, however, is not the benefit of the supposed insane
person, but self -pro tection.** Similarly, imprisonment to prevent
bodily harm may be justifiable in self-defense."*
B8 Cochran t. Toher, 14 Minn. 385 (GU. 293); Lock v. Ashton, 12 Q. B. 871.
Compare Perry v. Sutley, 63 Hun, 636, 18 N. Y. Supp. 633; Murray v. Friens-
berg (Sup.) 15 N. Y. Supp. 450; Newman v. New York, L. E. & W. R. Co.,
54 llun. 335, 7 N. Y. Supp. 5(K); Filer v. Smith, 96 Mich. 347, 55 N. W. 099;
White V. McQueen, 96 Mich. 249, 55 N. W. 843.
6» Broughtan v. Jackson, 18 Q. B. 378, 21 Law J. Q. B. 266, per Lord Camp-
bell, C. J.; Rosenkranz v. Haas (City Ct. N. Y.) 20 N. Y. Supp. 880. What is
reasonable cause depends on the circumstances of each case (Hogg v. Ward,
3 Hurl. & N. 417, 27 Law J. Exch. 443; Joyce y. Parkurst, 150 Mass. 243,
22 N. E. 899), and Is generally a question of law for the courts (Filer ▼.
Smith, 96 Mich. 347, 55 N. W. 999). Cf. White v. McQueen, 96 Mich. 249,
55 N. W. 843; Wolf t. Ferryman, 82 Tex. 112, 17 S. W. 772. But mere Im-
pression that innocent defendant resembled the accused does not Justify.
MaUniemi y. Gronlund, 92 Mich. 22, 52 N. W. 627. Street walking: Pinker-
ton V. Verberg, 78 Mich. 573, 44 N. W. 579.
60 stev. Mai. Pros. c. 7.
ci Fertich r. Mlchener, 111 Ind. 472, 11 N. E. 605.
•2 Fletcher v. Fletcher. 28 Law J. Q. B. 134; and see cases cited in a note
to Elliott V. Allen, 14 Law J. C. P. 136. But physicians fraudulently and
falsely certifying to insanity may be held liable for false imprisonment by
their victim. Hurlehy v. Martlne, 56 Hun, 648, 10 N. Y. Supp. 92.
«8 Look y. Dean, 108 Mass. 110.
«« But when an unarmed plaintiff. Intrenched in a comcrib, is imprisoned
for an hour and a half there, and shot at by defendant, armed with a re-
volver, there is not reasonable apprehension of fear, nor imprisonment rea-
sonable and necessary under the circumstances. McNay v. Stratton, 9 111.
App. 215-220.
430 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch, ft
147. Evidence showing: the absence of mcdice is admissi-
ble, not by way of justification, but by way of mit-
igration of punitive damages.
One who has been wrongfully restrained of liberty of locomotion
raay recover, not only compensatory damages, but wanton disre-
guard of legal right will entitle him to punitive damage; as in an ac-
tion by a young girl for humiliation, insult, and wounded sensibility
consequent upon her arrest.^^ While malice or want of proper
cause is no part of the plaintiff's case in an action for false im-
prisonment, proof that the defendant believed himself to be
legally right in making an improper arrest will mitigate exem-
plary damages, but will not diminish actual damages.'* But com-
pensatory damages are not necessarily limited to actual money
losses. For an unlawful incarceration in an insane asylum one
may recover, not only money expended in procuring his release,,
but also for consequent humiliation, shame, disgrace, and injury to
reputation.*^
«6 Ban V. Horrigan, 65 Hun, 621, 19 N. T. Supp. 913; Ross v. Leggett, 61
Mich. 445, 28 N. W. 695; Pearce v. Needham, 37 111. App. 90; Taylor v. Cool-
idge, 64 Yt. 506, 24 Atl. 656; Hewlett v. George, 68 Miss. 703, 9 South. 885.
A verdict for $2,917 damages has been set aside as excessive for three hours^
detention in a lockup. Woodward v. Glidden, 33 Minn. 108, 22 N. W. 127.
And a verdict of 6 cents for detention long enough to walk across the street
has been sustained as adequate. Henderson v. McReynolds, 60 Hun, 579,
14 N. Y. Supp. 351. Et vide Cabell v. Arnold (Tex. Civ. App.) 22 S. W. 62;
Wiley V. Keokuk, 6 Kan. 94.
«« Holmes v. Blyler, 80 Iowa, 365, 45 N. W. 756; Livingston v. Burroughs,.
33 Mich. 511; Tenney v. Harvey, 63 Vt. 520, 22 Atl. 659; Comer v. Knowles,
17 Kan. 436; Sleight v. Ogle, 4 E. D. Smith, 445; MiUer v. Grice, 2 Rich. Law,.
27; McDanlel v. Needham, 61 Tex. 269; Rogers v. Wilson, Min. (Ala.) 407;
Hill V. Taylor, 50 Mich. 549, 15 N. W. 899; Roth v. Smith, 41 111. 314. Good
faith as a Justification, Aldrich v. Weeks, 62 Vt. 89, 19 Atl. 115; ProvocatloB
no justification, Grac^ v. Dempsey, 75 Wis. 313, 43 N. W. 1127; nor bad char-
acter of defendant, Hurlehy v. Martine, 56 Hun, 648, 10 N. Y. Supp. 92.
6T Such damages, not being punitive, may be recovered after death of de-
fendant Hewlett V. George, 08 Miss. 703, 9 South. 885.
Ch. 63 ASSAULT. 431
ASSAULT— DBPINITIOK.
148. An assault is an attempt with force or violence to in-
flict corporal injury on another, accompanied by
apparent physical means to effect such injury if not
prevented.^
Generally speaking, to constitute an assault there must be an
attempt, which may be either real or apparent. A real attempt
occurs when the party assaulting proceeds with intent to accom-
plish the injury threatened. Thus, in a leading case on this sub-
ject, one who, at a parish meeting, advanced with his fist clenched
towards the chairman with intent to strike him, but was stopped by
the church warden, who sat next but one to the chairman, was held
liable for assault^* And where one pursued another with an up-
lifted whip, intending to strike him, and the latter made his escape^
it was held an assault. "^^ Accordingly, whenever a real attempt is
present, and the assaulted person is aware of such attempt, there
can be no question that an assault is committed. Apparent at-
tempt occurs when there is no actual purpose or intent to do the
/
•« Cooley, Torts, IGO; De 8. v. De S. Lib. Ass. p. 99, pi. 60; Read v. Coker^
13. C. B. 850; Barbee v. Reese, 60 Miss. 906; Pol. Torts, 182; Richmond v.
Fisk, 100 Mass. 34, 35 N. B. 103; Pig. Torts, 290; Hays v. People, 1 Hill, 351;
Bishop V. Ranney, 50 Yt 316, 7 Atl. 820. The inaccuracy of generally ac-
cepted legal definitions is well illustrated in the case of assault. While the
one given In the text is generally recognized as correct, still, popularly, the
word assault is used to include battery, and no less an authority than Mr.
Pollock says that "no reason appears for maintaining the distinction in our
modem practice." Assault, in the penal codes of many states, also Indudes
battery.
«« Stephens v. Myers, 4 Car. & P. 349. Tindal, 0. J., saying that, "though
he was not near enough at the time to have struck him, yet if he was advan^
cing with that intent, I think it amounts to an assault in law." Et vide
Cobbett V. Grey. 4 Kxch. 729; Handy v. Jolmson, 5 Md. 450; Alexander v-
Blodgett, 44 Vt. 476; Tombs v. I^inter, 13 East, 1; State v. Neeley, 74 N. a
425.
'0 Mortin v. Shoppee, 3 Car. & P. 373. So, to shake one's fist in another's-
face, and to threaten to strike, is an assault. Mitchell v. Mitchell, 45 Minn.
50, 47 N. W. 308. And see 1 Bac. Abr. "Assault and Battery," 370.
432 WKONGS AFFECTING SAFETY AKD FREEDOM OF PERSON. [Ch. 6
injury threatened, but a display of force under such circumstances
as to cause one reasonably to expect and fear the injuryJ^
But in every case there must be an attempt. Threats alone are
not sufficient. Mere words, unaccompanied by some act indicating
an intention to carry the threat into execution, do not constitute
an assault, for the obvious reason that words alone are insufficient
to induce, in the mind of a reasonable man, fear of present corporal
injury.^* Words, however, may qualify an action or gesture which
would ordinarily be considered an assault, and by showing that
the assaulted party has no intention to do the violence, removes
from the act the element of assault. Laying one's hand on one's
sword and saying, ^Ti it were not assize time, I would not take such
language from you," is not an assault^' So the irate farmer, who
would have knocked a man down **if it were not for his gray hairs,"
was not guilty of an assault.^ ^ In these cases, the accompanying
words negative the idea of immediate injury to the party to whom
the words are directed, and hence any alarm or fear which he may
entertain on account of such acts and words is groundless and un-
reasonable. But mere intent to execute the threat is not essen-
tial."
71 Smith V. Newsam, 1 Vent. 256; Osbom v. Veltch, 1 Fost & P. 317. In
Read v. Coker, 13 C. B. SoO, defendant gathered his workmen around plain-
tiff. They tucked up their aprons and sleeves, and threatened to break plain-
tiff's neck if he did not get out of the premises. Plaintiff feared violence.
Defendant was guilty of an assault. There was threat of violence exhibiting
an intention to assault, and a present ability to carry the threat into execu-
tion.
72 State V. Merritt, Phil. (N. C.) 134; Fatnall v. Courtney, 6 Houst. (Del,) 437;
Smith y. State, 39 Miss. 5'Jl; Johnson v. State, 35 Ala. 363; Reed v. State.
71 Ga. 865; 1 Hawk. P. C. 263; People v. Yslas. 27 Cal. 631,
7« TuberviUe v. Savage. 1 Mod. 3. And see Warren v. State, aS Tex, 517;
Mitchell V. State, 41 Ga. 527; Lawson v. State, 30 Ala. 14.
74 State V. Crow, 1 Ired. 375; Com. v. Eyre, 1 Serg. & R. 347; State v. Hamp-
ton. 63 N. C. 13. So to waken a debtor in order to dun him entitles to
damages, not necessarily nominal. Richmond v. Fisk, 160 Mass. 34, 35 N, E.
103; Green Bag, Feb. 1804, p. 97.
76 Beach v. Hancock. 27 N. H. 223; Mercer v. Corbin, 117 Ind. 450, 20 N.
E. 132.
Ch. 6] ASSAULT. 433
Apparent Means of Effecting Attempt.
The civil wrong of assault rests upon the infringement of right
of every person "to live in society without being in fear of personal
harm." ^* Hence, in determining the tort of assault, the question
always is, was the attempted violence or force suffirient nnd ^tting
to put a man of ordinary courage and reason into fear and alarm."
If soothe wrong is effected, independent of the fact that the assault-
ing party did not harbor the intention to perpetrate the injury
menaced. And it would therefore seem that, if one makes a real
attempt to inflict corporal injury on another, but such other was
not aware of the attempt, there is no civil wrong, because of no ap-
prehension of harm. But, in the crime of assault, the rule is es-
sentially different. Here the intent, as in all criminal acts, be-
comes a necessary element, and the Question is, did the party as-
saulting make the outward display of force with the intention of
effecting the threatened injury? If so, the crime has been commit-
ted.^' Hence, one might be criminally assaulted though entirely
ignorant of the attempt, and hence absolutely free from fear.^" If the
force threatened and the accompanying circumstances are of such a
character as to raise, in the mind of a reasonable person, an appre-
hension of immediate bodily harm, the assault is complete. Thus,
if one point an unloaded gun at another, within shooting range,
knowing it to be unloaded, it is an assault if such other person has
no reason to believe it unloaded. In such cases, he is put in fear
and alarm, and it is that which the law purposes to prevent. ®®
However, in an assault, the intent must be wrongful, — ^that is, hos-
tile or unlawful.
T 9 Beach v. Hancock, 27 N. H, 223; 1 Add. Torts (Gth Ed.) 138; Cooley,
Torts, IGl; Chapman v. State, 78 Ala. 463; Pig. Torts, 292.
77 Pig. Torts. 203; Pol. Torts, 182.
7 8 State V. Crow. 1 Ired. 375; State v. Davis, 35 Am. Dec. 735; Robinson
V. State, 31 Tex. 170; McKay v. State, 44 Tex, 43: Rose. Cr. Ev. (8th Ed.)
423; State v. Godfrey, 17 Or. 300, 20 Pac. 625; Peofile v. Lllley, 43 Mich. 521,
5 N. W. 982. Many authorities hold the contrary.
7 0 People V. Lllley, 43 Mich. 525, 5 N. W. 982; Qhapman v. State, 78 Ala. 463.
80 Parke. B., in Reg. v. St. George, 9 Car. & P. 483; De S. v. De S. lib.
Ass. p. 99, pi. 00; Beach v. Hancock, 27 N. H. 223; Smith v. Newsam, 1 Vent.
256; State v. Smith, 2 Humph. 457; Lewis v. Hoover, 3 Blackf. 407; Tombs
V. Painter, 13 East, 1; State v. CheiTy, 11 Ired. 475; Handy v. Johnson, 5 Md.
LAW OP TORTS— 28
434 WRONGS AFFECTING SAFETY AND FRBEDOM OF PERSON. [Ch. 6
BATTERY— DBFINITIOBT.
149. Battery is the unpermitted application of force to
the person of another.
Every assault, where carried to the extent of physical contact,
becomes a battery, and every battery includes an assault. Battery
is an accomplished assault. It consists in a violent, angry, rude,
insolent, or unauthorized touching or striking of a person, either
by the party guilty of the battery, or by any substance put in mo-
tion by him.'^ The distinction between assault and battery is well
illustrated by Smith v. Newsam,^^ where defendant drew a sword
and waved it in a menacing manner, but did not touch the plain-
tiff, and the jury was ordered to find the defendant guilty of assault
but not of battery.
450; Osbom v. Veitch, 1 Fost & F. 317; State v. Church, 53 N. C. 15; Riohard-
fion V. Van Voorhis (Sup.) 3 N. Y. Supp. 599. Further, as to self-defense,
see Shorter v. People, 2 N. Y. 193; Panton v. People, 114 111. 505, 2 N. E.
411; Marts v. State, 2G Ohio, 1G2; Scribner v. Beach, 4 Denio, 448; Penn v.
Ward, 2 Cromp., M. & R. 338; Oakes v. Wood, 3 Mees. & W. 150.
81 Com. V. McKie, 1 Gray, 61; 1 Hawk. P. 0. c. 62, § 2; Pig. Torts, 293;
Cooley, Torts, 102; Add. Torts, 139; Rawllngs v. TiU, 3 Mees. & W. 28; Pur-
sell v. Iloruo, 3 Nev. & P. 504; Clark & L. Torts, 130; Cole v. Turner, 6 Mod.
140, where Holt, C. J., says— First, the least touching of another in anger is
a battery; second, if two or more meet in a narrow passage, and, without
any violence or design of harm, the one touches the other gently, it wiU be
no battery; third, if any of them use violence against the other, to force
his way, in a rude, inordinate manner, it will be a battery; or any struggle
about the passage to that degree as may do hurt will be a battery. McCabe
V. State, 44 Tex. 48; Cooper v. McKenna, 124 Mass. 284; Boyle v. Case. 18
Fed. 880; Ricker v. Freeman, 50 N. H. 420; Fredericksen v. Singer Manufg
Co., 38 Minn. 356, 37 N. W. 453; Fitzgerald v. Fitzgerald, 51 Vt 420.
82 (1074) 1 Vent. 256.
Ch. 6] ASSAULT AND BATTERY. 435
ASSAULT AND BATTEBY— FORCE AND INTENT.
160. In both assault and battery, liability in tort depends
upon —
(a) Force (attempted in assatilt, and exerted in battery)^
in its ordinary sense, or as amounting: to not more
than contact, or even deception; and
(b) Fault or intention on the part of the wrongdoer.
Force.
Whenever violence, in its ordinary sense, is threatened •* or used,'*
an assault or battery is clearly committed. Thus, forcible defilement
of a woman is actionable assault and battery.** It is not necessary,
in assault, that any actual violence be done to the person,'* and
where violence is used it is not indispensably necessary that it
should be to the person. Upsetting a chair or carriage •' in which
a person is sitting, or striking a horse ** on which one is riding,
compelling a person to run into his garden •• to avoid being beaten,
are all assaults.'®
Every person has the right to live in society with the sense of
perfect security; hence, it is not necessary, to constitute an assault
or a battery, that the force, threatened in the one or exerted in the
other, be of a violent nature, or of such a character that one would
fear or suffer serious bodily injury.'^ It is the policy of the law
88 Bloomer v. State, 3 Sneed (Tenn.) G6; State v. Rawles, 65 N. C. 334; State
V. Martin, 85 N. C. 508; State v. Shipman, 81 N. C. 513; State v. Neeley, 74
N. C. 425; Hairston v. State, 54 Miss. 392; U. S. v. Myers, 1 Cranch, C. C.
310, Fed. Cas. No. 15,845; State v. Church, 63 N. C. 15; State v. Home, 5)2
N. C. 805; State v. Morgan, 3 Ired. (N. C.) 186.
84 Clark, Cr. Law, p. 202; 1 Russ. Crimes. 1020; 3 Bl. Comm. 120.
88 Dean v. Raplee, 75 Hun, 389, 27 N. Y. Siipp. 438.
88 Liebstadter v. Federgreen (Sup.) 29 N. Y. Supp. 1039.
8T Hopper V. Reeve, 7 Taunt. 698.
88 1 Steph. N. P. 210. And see Marentllle v. Oliver, 2 N. J. Law, 358;
Klrland v. State, 43 Ind. 146.
88 Mortin v. Shoppee, 3 Car. & P. 373.
80 Clark v. Downing, 55 Vt 259.
81 Com. V. McKie, 1 Gray (Mass.) 61. Where a milkman, agahist the ex-
press commands of one of his customers, entered the latter's sleeping room in
the early morning, took hold of his arms and shoulders, and used sufficient
436 WRONGd AFFKCTING SAFETY AND FREEDOM OF PERSON. [Ch. 6
to protect one's person, not only from threat of violent attack, but
also from threat of the slightest physical contact against his will.
Hence, the attempt to interfere in any measure with another's per-
sonal security is an assault.'* Force, often, is no more than contact.
To put one's arms; though tenderly, around a woman's neck against
her will, without some innocent reason or excuse, is an assault and
battery.'^ And a man who sat upon a bed occupied by a woman
and leaned over her, making repeated and persistent improper pro-
posals, was liable in assault."*
Personal offense is what the law aims to relieve against by the
action of assault and battery. Ordinarily, indignities do not con-
stitute an assault; '° but it has been held that one who enticed a
woman out of her house while in bare feet and thin clothing, and
barred the door against her re-entrance, was liable for assault and
battery.*®
force to awaken him, for the purpose of presenting his biH, he was held
guilty. Richmond v. Fiske (Mass.) 35 N. E. 103.
92 Mortia V. Shoppeei 3 Car. & P. 373.
»3 Goodrum y. State, 60 6a. 509.
»* Newell V. Whitcher, 53 Vt 589. In the latter case, the court held that
where the acts of the party complained of are of themselves Innocent and
harmless, and may become wrongful by the manner in which they are done,
then a man is to be Judged by the common and ordinary effect of such acts.
But where the act itself is wronjjful, and, if perpetrated, criminal, then the
party must answer for all actual injuries sustained. Compare Alexander y.
Blodgett, 44 Vt. 476.
»5 In Stearns v. Sampson, 59 Me. 5G8, the defendant removed plaintiff's
furniture from her house and sleeping room, caused the windows to be re-
moved, prevented food from being carried tc the house, brought a blood-
hound into the building, and left him with the tenant. The plaintiff finally
left, by compulsion, with an officer, and was sick several weeks. It was held
not to be an assault, the court using this lan;ruage: ''Acts which embarrass
.antk^istress do not necessarily amount to au assault. Indignities may not
<»on8titute an assault. Acts aggravating an assault differ materially from the.
c'onduct aggravated." And see Meader v. Stone, 7 Mete. (Mass.) 147. As-
saulting a peraon in a court liouse. and denouncing him. In the presence of
bystanders and officers of the court, as a thief, and threatening to cowhide
him, are indignities and insults actionable in themselves, without reference
to character or reputation. Caspar v. Prosdame, 46 La. Ann. 36, 14 South.
;n7.
i>« Jacobs v. Hoover, 9 Minn. 204 (Gil. 1S9).
Ch. 6] ASSAULT AND BATTERY. 487
Deception has been sometimes held to be equivalent to force as
an ingredient in assanlt; •^ for one is guilty of assault and battery
who knowing that a thing to be eaten contai&s a foreign substance,
and concealing the fact, delivers it to another who innocently eats
it and is injiu*ed in health.'"
FnuU or Intention.
The early conijeption of trespass was, as has been seen, that it
lay for a breach of absolute rights corresponding to absolute duties.
According to this conception the defendant acted at his peril, and
it was immaterial whether he was at fault or not, so long as he
actually invaded the sanctity of the plaintiff's person. The
later cases^ however, incline strongly to recognize that there can
be no recovery in assault and battery unless there was fault or in-
tention on the part of the defendant. In other words, the law rec-
ognizes unhappy accidents, which would not have occurred except
for the intervention of human agency, but are results "rather to be
deplored than punished.'' •• But however slight or however harm-
less the touch, if rudely, or angrily, or unlawfully done, or in a hos-
tile manner, the wrong is complete. Thus, spitting upon a man
may be an assault,*®® and one who endeavored to strike another
with a stick, and when it was wrenched from his hand by the other
drew a pistol, which in the ensuing struggle was discharged, is,
guilty of assault and battery.^®*
Every one has a right to complete immunity of his person from
physical interference of others, except in so far as contact may be
necessary under the general doctrine of privilege. But the essence
»T Cooley, Torts, 163; McCue v. Klein, 60 Tex. 168.
•« Com. v. Stratton, 114 Mass. 303. The fact that deceased kiUed himself
by the making of a wager as to the quantity of liquor he could swallow
cannot relieve those who induced him to act from liability. The unlawful
infliction of an injury by administering poison constitutes an assault. Carr
V. State, 135 Ind. 1, 34 N. B. 533.
»» Harvey v. Dunlop, Lalor Supp. (N. Y.) 193, approved in Nitroglycerine
Case, 15 WaU. 524; Stanley v. PoweU, 1 Q. B. 86, 60 Law J. Q. B. 52;
Holmes v. Mather, L. R. 10 Bxch. 261. 44 Law J. Exch. 176.
100 Keg. V. Cotesworth, 6 Mod. 172. So, Jostling a man out of the way,
throwing water on him, Pursell v. Horn, 8 Adol. & E. 602; or forcibly cutting
his hair, Forde v. Skinner, 4 Car. & P. 239.
101 Engelhardt v. State, 88 Ala. 100, 7 South. 154.
438 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. 6
of battery lies more in the animus and manner in which it is done
than in the contact itself. Thus, to touch another lightly in a spirit
of pleasantry, or to strike him on the hand or shoulder in conversa-
tion in a gentle manner does not involve a battery.^®* For a touch
or stroke in jest an action will not lie.**' But recovery may be had
for actual damage resulting from such unpermitted contact, although
there was no intention to injure. Thus, where one injured another
by kicking him on the leg during school hours, damages were al-
lowed though no injury was intended.*®*
An action will lie for assault and battery though the conduct com-
I)lained of was reckless only, and not willful. If B., in endeavoring
to hit C, hits A., an action will lie by A. against B."» It is not
essential that there should be a direct or specific intention to com-
mit an assault and battery at the time the violence is done. There
is little distinction, except in degree, between a positive will to do
wrong and an indifference whether wrong is done or not*®* There-
fore the rider of a bicycle, who ran over a man in plain sight, and
only a few feet away, was held liable for an assault and battery,
and not for mere negligence.**^
8AME— DEFENSES.
161. Defenses to an action for assault and battery may-
operate by -way of —
(a) Justification, or
(b) Mitigation.
102 Williams V. Jones, Hardr. 298. Compare Coward V. Baddeley. 4 Hurl.
& N. 478, 28 Law J. Exch. 260, and Wiffln v. Klncard, 2 Bos. & P. (N. R.) 472,
with Rawlings v. Till, 3 Mees. & W. 28.
103 Williams V. Jones, Hardr. 301.
104 Vosburg V. Putney, 80 Wis. 523, 50 N. W. 403.
loB Weaver v. Ward, Hob. 289; Hopper v. Reeve, 7 Taunt. 698; Talmage
V. Smith, 101 Mich. 370, 59 N. W. 656; Carmlchael v. Dolen, 25 Neb. 335, 41
N. W. 178; Peterson v. Haffner, 59 Ind. 130; State v. Myers, 19 Iowa, 517;
Bulloclc V. Babcock, 3 Wend. 391; Com. v. Hawkins, 157 Mass. 551-553. 32
N. E. 862, collecting cases. Compare Com. v. Pierce, 138 Mass. 165-180.
106 1 Bish. Cr. Law, c. 20.
107 Mercer v. Corbln, 117 Ind. 450, 20 N. B. 132; KendaU v. Drake (N. H.)
30 Atl. 524.
Ch. 6] ASSAULT AND BATTERY. 439
162. The oharge of assault and battery may be justified
by the person allegred to have committed it by
bring^ing: it within the limits of—
(a) Private defense, or
(b) Legal authority, whether public or private.
Private Defense of Peracm,
Assault is justifiable if it is committed in self-defense.^** In
the language of the early law, this was the defense of son assault
demesne. In order that self-defense may be justified, assault must
have been threatened. Thus, a person is justified in defending him-
self by shooting his assailant, if he has reason to believe th^t the
assailant intends to do him great bodily harm, and that he is in
danger of such harm, and no other means can effectually prevent
it.^®* But, on the other hand, where a creditor followed a debtor,
disputing about a bill, saying: "This thing must be settled now,''
and the latter struck him while he was walking with his hands in
his pockets, it was held that no assault had been threatened by the
debtor and self-defense was not made out.^^* To avoid becoming
an assailant, however, the person originally attacked need not
necessarily retreat^^*
«
108 The rule Is essentiaUy the same In civil and criminal cases as to the ex-
tent of the right. As to facts, however, in criminal cases only is there given
the defendant the benefit of a reasonable doubt. March v. Walker, 48 Tex. 372.
io» Com. V. O'Malley, 131 Mass. 423; Clyma v. Kennedy, 64 Conn. 310, 29
Atl. 539; Landrum v. Wells (Tex. Civ. App.) 26 S. W. 1001; French v. Ware,
65 Vt 338, 26 Atl. 1096.
110 Rhodes V. Rodgers, 151 Pa. St 634, 24 Atl. 1044. So, in an action for
assault and battery, where the evidence shows that defendant, while quarrel-
ing with plaintiff, stopped his wagon and got out, and walked seyeral feet to
where plaintiff was standing with his hands in his pockets, and struck plain-
tiff in such position, the question of Justification under an answer of son
assault demesne should not be submitted to the Jury. Morganstein y. Nejedlo,
79 Wis. 338, 48 N. W. 652. Et vide Sargent v. Games, 84 Tex. 156, 19 S. W.
378; Hulse v. Tollman, 49 lU. App. 490.
iiiHaynes v. State, 17 Ga. 465; State v. Tweedy, 5 Iowa, 433; Norris v.
Casel, 90 Ind. 143; Steinmetz v. Kelly, 72 Ind. 442; State v. Dixson, 75 N.
C. 275; Townsend v. Briggs, 99 Cal. 481, 34 Tac. 116. But see Rowland v.
Day, 56 Vt 318.
440 WRONGS AFFECTING 8AFKTY AND FREEDOM OF PERSON. [Ch. 6
Abusive words, written or spoken, maligant leers, and taunting
grimaces, though made for the purpose of inducing an assault, do
not justify it. There is said, however, to be an exception to this
with respect to words "grossly insulting to females. * * * At
least, one would be excused where grossly insulting language was
(Miiployed in the presence of his family, if he were promptly to put
a stop to it by force.*' This was applied in a case inrolving an
assault made on a charivari party which, having been warned
to desist on the first night, when they came to the defendant's
house, returned on two subsequent nights and terrified his wife
and children. The matter of self-defense was sent to the jury,
with instructions that there was a difference in law between an
assault by a^1)ody of rioters and one by a single i)erson, and that,
in the former case, the assaulted person may act with more prompt-
ness and resort to more forcible means to protect himself and fam-
ily than in the latter case.*^*
Same — Defense of Family, Servanta, and Pnends.
A man has a right to use necessary force to protect his family,
neighbors,^*" or servants from violence.^^* What a father and the
head of a house can legally do in defense of his house the son can
do.^" Where the defendant was rightfully on the premises of the
plaintiff's husband, and was interfered with in his work by plain-
tiff's mother, he had the right to rid himself of such annoyance, and .
plaintiff had no right to assault him in defense of her mother, if
defendant was in the use of reasonable care.^^' The right of the
master to come to the defense of his servant does not extend to
iia Hlgglns V. Minaghan, 76 Wis. 298, 45 N. W. 127; Minagban v. State,
77 Wis. (Vi3, 46 N. W. 894; HIggins v. Minaghan, 78 Wis. 602, 47 N. W. 941.
118 Compare 1 BI. Gomm. 429, and 1 Hawk. P. G. bk. 1, c. 60, with Leward
V. Basely, 1 Ld. Raym. 62. As to right of overseer of i)oor to "intercept" a
husband who had threatened to kill his wife to ascertain cause of disturbance
he was creating, see French v. Ware, 65 Vt. 338, 26 Atl. 1096.
11* Leward v. Basely, 1 Ld. Raym. 62; Fields v. Grenils, 89 Va. 606, 16 S.
E. 880.
lis Hammond v. High tower, 82 Ga. 290, 292, 9 S. E. 1101. A son may resent
a malicious trespass on his father's land. People v. Foss, 80 Mich. 559, 45
N. W. 480.
lie Drinkhom v. Bubel, 85 Mich. 532, 48 N. W, 7ia
Ch. 6 J ASSAULT AND BATTERY. 441
cases where the servant is the aggressor, nor to cases of mutual as-
sault."'
Same — Defense of Property.
A man may justify an assault and battery In defense of his
lands,^^* his house,^** or his chattels,"® and, generally, of pos-
session or property.^** One whose property is taken wrongfully
by another may retake it from him using reasonable force. What
is such reasonable force is a question for the jury.**' The owner
of chattels which are on the premises of another has even the right
to go on such premises, if he can do so without breach of peace; and
if assaulted while so doing, he can recover damages.*** 'Tosses-
sion is nine points of the law." When a man is in possession, he
may, after request to a trespasser to depart or desist, use force to
remove him.**^ But if a trespasser has gained possession, or if one
comes lawfully into possession but Unlawfully retains possession,
1 IT Jones V. Fortune, 128 lU. 518, 21 N. E. 523.
118 Com. V. Clark, 2 Mete. (Mass.) 23; Kiff v. Toumans, 86 N. Y. 324;
Souter V. Codman, 14 R. I. 119. As to right of tenants in common to retain
possession of common property, see Ricliardson v. Van Voorhles, 51 Hun, 636,
.3 N. Y. Supp. 509.
ii» Stat© V. Middleham, 62 Iowa, 150, 17 N. W. 446; State v. Bnrwell, 63
N. C. 661; Pitford v. Armstrong, Wright, N. P. (Ohio) 94; State v. Peacock,
40 Ohio St. 333; Wall v. State, 51 Ind. 453; McPherson v. State, 22 Ga. 478.
120 People V. Dann, 53 Mich. 490, 19 N. W. 159.
m Harrington v. People, 6 Barb. 607-612; Fllkins v. People, 69 N. Y. 101,
100; Liebstadter v. Pedergreen, 80 Hun, 245, 29 N. Y. Supp. 1039; Dyk-
man, J., dissenting, Conway v. Carpenter, 73 Hun, 540, 26 N. Y. Supp. 2.15.
122 Com. T. Donahue, 148 Mass. 539, 20 N. E. 171. An officer of the old
company regained its files from one of its ex-members, who was taking them
for the benefit of the new company, of which he was a member. The officer
was Justified. Hemlnway v. Heminway, 58 Conn. 443, 19 AU. 766. But,
when a master lost a sum of money, and deducted the amount from the wages
of his servant, upon the groimd that the servant was responsible for the loss,
the servant subsequently took the amount withheld from his wages from
money placed in his hands by the master for the payment of his fellow serv-
ants. Held, that the master was not justified in assaulting the servant in
an attempt to recover the money taken by him.
128 Stuyvesant v. Wilcox, 92 Mich. 233, 52 N. W. 465.
124 Thus the master of a house may execute his right to exclude another
from his house as capriciously as he pleases. Timothy y. Simpspn, 6 Car. &
P. 499; Wheeler v. Whiting, 9 Car. & P. 262.
442 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. 6
*he rightful owner cannot justify an assault to dispossess him."*
Wherever a lessee, after the surrender and termination of a lease,
denies the lessor's right to peaceable entry and possession, and
attempts to expel him by force, this is an unlawful assault, and
the lessor is justified in resisting it with sufficient force to repel
the same.*'"
Same — Commensurate Defense.
Force used in private defense must not exceed the necessity of the
case. Defense is not attack. Excessive defense may become an as-
sault and battery.**^ "In an action for assault and battery, to which
the defendant pleads that the plaintiff first assaulted the defendant,
who thereupon . committed the alleged assault in his own defense,
the plaintiff may show that, although he struck the first blow, the
defendant was guilty of excess. ♦ * ♦ The old form of defend-
ant's plea, 'moUiter manus imposuit/ * * * shows also the
full extent to which the law allows a man to defend himself from
an unprovoked assault." "* Therefore, in an action for assault,
where it appears that the plaintiff first attacked the defendant, she
cannot recover unless the defendant used more force than was
necessary in repelling the attack.**" When resistance exceeds
the bounds of mere defense, so as to become vindictive, the de-
fender becomes the aggressor, and may himself commit an as-
sault.**® "The law," however, "has enough regard for the weak-
ness of human nature to regard a violent attack as sufficient excuse
12B Read v. Coker, 13 C. B. 850; Dean v. Hogg, 10 Blng. 349; Osbom v.
Veltch, 1 Fost. & P. 317. Et vide Roberts v. Tayler, 1 C. B. 147; Beddall v.
Maitland, 17 Ch. Dlv. 174; Jackson v. Courtenay, 8 El. & Bl. 8; TuUay v.
Reed, 1 Car. & P. 6. Mere possession of premises will not Justify violence to
prevent the lawful occupant from entering. Liebstadter v. Federgreen, 80
Hun, 245, 20 N. Y. Supp. 1039.
128 Gillespie v. Beecher, 85 Mich. 347, 48 N. W. 561.
127 Dean v. Taylor (1855) 11 Exch. 08; Beddall* v. Maitland, 17 Ch. Dly. 1T4;
-Cook V. Beal, 1 Ld. Raym. 177; Cockroft v. Smith 2 Salk. C>42; Philadelphia,
W. & B. R. Co. V. Larkin, 47 Md. 155; Dole v. Erskine, 35 N. H. 503.
128 Dean v. Taylor, 11 JExch. 68.
120 Drinkboi-n v. Bubel, 85 Mich. 532, 48 N. W. 710. Et vide Kent v. Cole.
»1 INIlch. 570. 48 N. W. 1G8.
130 Elliot V. Brown, 3 Wend. 497; Gates v. Lounsbury, 20 Johns. 427; Cu.tis
T. Carson, ? N. H. 539; Gregory v. Hill, 8 Term R. 299, 1 Hawk. P. C. 130.
J
4
Oh. 6] ASSAULT AND BATTERY. 443
for going beyond the mere necessities of self-defense, and chas-
tising the aggressor within such bounds as did not exceed the
natural limits of the provocation." ^'^ Force used in defense of
land or goods is justified only when proportioned to the occasion.^''
AtUkority.
Where an officer of justice is charged with an assault and bat-
tery, it is a good defense to show that he was at the time engaged
in the execution of his official duties, and that the wrong was done
in their discharge. If, however, he uses greater force than is
necessary to effect the immediate object, he may become civilly
liable.^*' XJ^erefore, an officer who, in arresting an unresisting
prisoner, threw him down, and poun'ded him so as to cause him to
spit blood, was held personally liable.^'* But the person asserting
the defense of official duty must prove his legal title to the office.
It is not sufficient that he was an officer de facto.^'* The exemp-
tion from liability, in an assault and battery, on the ground of legal
authority, exists only when there is an occasion for the exercise
of force, and the officers exercising it are authorized ^'^ to employ
it. Therefore, school trustees, who forcibly eject a schoolteacher
because of her refusal to consent to a vacation ordered by them,
are liable in an assault and battery.^ '^
Parents may chastise their children under age reasonably, but
excessive cruelty, arising from malicious motive and resulting in
181 People V. Pearl, 76 Mich. 207, 42 N. W. 1109.
132 Harvey v. Mayne, 6 Ir. C. L. 417.
138 Baker v. Barton, 1 Colo. App. 183, 28 Pac. 88; 2 Greenl. Ev. 98; Boles ▼.
PInkertoo, 7 Dana (Ky.) 453; Kreger v. Osbom, 7 Blackf. 74; Baldwin v.
Hay den, 6 Conn. 453. Civil liability will extend at least as far as ciimiual.
Hilliard v. Goold, 34 N. H. 230; Spensley v. Lancashire Ins. Co., 54 Wis. 433,
11 N. W. 891.
134 Schwenke v. Union Depot & R. Co., 12 Colo. 341, 21 Pac. 43. Compare
Hnger v. Danforth, 20 Barb. IG, with HuU v. Bartlett, 49 Conn. G4. As to lia-
bility of constable, Brownell v. Durkee, 79 Wis. G58, 48 N. W. 241. Highway
commissioners, Howe v. Oldham, 69 Hun, G15, 23 N. Y. Supp. 700.
ISO Pooler v. Reed, 73 Me. 488; Andrews v. Portland, 79 Me. 484, 10 Atl.
458; Grace v. Teague, 81 Me. 559, 18 Atl. 289.
ISO As to what is sufticient evidence that defendant acted as police officer,
Short V. Symmes, 150 Mass. 298. 23 X. E. 42.
137 White V. Kellogg, 119 Ind. 320, 21 N. E. 901.
444 WRONGS AFFECTIKQ SAFETY AND FREEDOM OF PERSON. [Ch. 5
permanent injury, is not justifiable because of parental authori-
^y i«8 rpjjg ^^^y jjjgy ^j^ delegated. A teacher may punish a
child.^** He may take a pistol from a pupil, and in so doing use
necessary force.^*® He may chastise for violation of only reason-
able rules of order.^*^ Consequently, chastisement for violation
of rule requiring pupils to pay for the destruction of schoolroom
property is an assault.*** On the same principle, beating a cook
about the head with a belaying pin for willful disobedience on
board a vessel in port is an assault, and the assertion by the mas-
ter of the lawfulness of such punishment will be regarded as an ag-
gravation rather than as a defense. Violence is justifiable only
in case of an emergency at sea.***
163. Leave and license, and provocation so recent that
the mind of the wrongdoer has not had time to
cool, while they may not justify battery, it would
seem may serve to mitigate punitive damages^
though not actual or compensatory damages.
Since the commission of an assault and battery constitutes a mis-
demeanor, a license from the person assaulted is no justification.^**
Thus a condition in a lease for a sewing machine authorizing an
188 Fletcher v. People, 52 111. 395; State v. Jones, 95 N. 0. 588; Johnson v.
State, 2 Humph. 283; Winterbum v. Brooks, 2 Car. & K. 16; Fitzgerald v.
Northcote, 4 Fost. & F. 656. The same rule applies to one standing in loco
parentis. Dean v. State, 89 Ala. 46, 8 South. 38. As to right of master to
chastise apprentice under 21, but not a servant, see Penn v. Ward, 2 Oromp.,
M. & R. 338. As to right of master of yessel to flog, Lamb v. Burnett, 1
Oromp. 295. But see post, p. 462, § 160.
18B Sheehan v. Sturges, 53 Conn. 481, 2 AtL 841; Patterson y. Nutter, 78 Me.
509. 7 Ati. 273.
140 Metcalf v. State, 21 Tex. App. 174, 17 S. W. 142.
141 Marlsbary v. State (Ind. App.) 37 N. E. 558.
148 State V. Vanderbilt, 116 Ind. 11, 18 N. E. 266.
148 Padmore v. Piltz, 44 Fed. 104.
144 Ante, p. 199, "Leave and License." The law abhors the use of force»
either for attack or defense, and never permits its use unnecessarily. How-
land V. Day, 56 Vt. 318; Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630. The
absence of anger and the presence of good will in a fight will not alter the
character of the assault (Com. v. CoUberg, 119 Mass. 350), but will mitigate
Ch. 6] ASSAULT AND BATTERY. 445
entry on the premises and the taking away of the machine by the
use of necessary force did not justify an assault, but operated in miti-
gation of damage&^^°
Provocation does not justify an assault and battery.^** It would
be an unwise law which did not make allowance for human in-
firmities; and if a person commits violence at a time when he is
smarting under immediate provocation, that is a matter of mitiga-
tion.**^ In order, however, that provocation may mitigate damages,
it must have been so recent as to form a part of the same transaction.
It must occur at or shortly before the time of the assault. If there
has been time for the mind to cool, the defense is lost.**" An insult
to one's wife is not legal provocation;*** nor was the act of a
sy|)hilitic Italian in biting off the nose of another person justified,
or the damages mitigated, by the fact that such person had assaulted
him two or three days previously.***® Publication of a gross insult
the night before the assault may, however, serve to mitigate dam-
damages (Barholt v. Wright, 45 Ohio St 177, 12 N. E. 183). The same rule
applies to" granger battle over a fence. "Although they were old men, it is
but just to say that they fought with great spirit and brutality." Shay v.
Thompson, 50 Wis. 540, 18 N. W. 473. Between husband and wife, see Pil-
low V. Bushnell, 5 Barb. 150.
i4»Frederickflen v. Singer Manufg Co., 38 Minn. 350, 37 N. W. 453. Com-
pare ColviU V. Langdon, 22 Minn. 505. The right to sue for an aspault and
battery committed by throwing plaintiff down and ravishing her la not af-
fected by the fact that she did not resist sexual intercourse to the utmost,
though she might not in that event be entitled to damages by reason of the
defilement. Dean v. Raplee, 73 Hun, 389, 27 N. Y. Supp. 438.
i*«Ante, p. 308.
1*7 Lord Abinger in Frazer v. Berkeley, 7 Car. & P. 021; Perkins v.
Vaughan. 5 Scotts, N. R. 881; Linford v. Lake, 3 Hurl. & N. 275; Averv v.
Ray. 1 Mass. 12; Lee v. Woolsei', 19 Johns. 319; Maynard v. Beardsley, 7
Wend. 500; Ireland v. Elliott. 5 Iowa. 478; KifC v. Youmans. 80 X. Y. 324;
Burke v. Melviu, 45 Conn. 243.
148 Thrall V. Knapp. 17 Iowa, 4CW; (Joldaiuith's Adni'r v. Joy, 01 Vt. 488,
17 Atl. 1010.
i*» Dupee V. Lentine, 147 Mass. 580, 18 N. E. 405.
isoBonino v. Caledonio, 144 Mass. 299, 11 N. B. 98. A fortiori, acts of
provocation committed more than a year before are liTelevant Prindle v.
Haight, 83 Wis. 50, 52 N. W. 1134. Et vide Tatnall v. Courtney, 0 Houst. (Del.)
434. That plaintiff entered complaint against defendant for intoxication is
446 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. 6
ages.^"* On the other hand, where an assault indaeed by insulting
language was followed by kicking the plaintiff after he was lying
on the floor, an award of punitive damages was justified.***
The current language of the cases is that leave and license and
provocation are in mitigation of damages. It would seem, however,
more accurate to say that no facts and circumstances can be given
in mitigation of actual damages, unless they furnish a legal justifica-
tion, and are therefore a defense to the cause of action.*** It is
insisted that provocative words cannot be given in mitigation of
actual or compensatory damages, but only upon the question of
punitive damages.***
uot sufficient Ip^al provocntitm. Roach v. Caldbeck, 64 Vt 593, 24 Atl. 98i>.
Nor is commitment for contempt. Miliard v. Truax, 84 Mich. 517, 47 N. W.
1100.
151 Ward V. White, 86 Va. 212. 9 S. E. 1021.
152 Crosby v. Humplireys (Minn.) 60 N. W. 843. Abusive epithets addressed
to a person 14 hours after an assault was made upon him are admissible
iu evidence to show that the assault was made with express malice. Spear
V. Sweeney, 88 Wis. 545, 60 N. W. 1060.
168 Blrcliard v. Booth, 4 Wis. 67-76, commenting on Cushman v. Ryau, 1
Story, 100, Fed. Cas. No. 3,515, which held that provocation might reduce
damages to merely nominal damages. Et vide Orcoran v. Harran, 55 Wis.
120, 12 N. W. 468; Robison v. Rupert, 23 Pa. St. 523; Jacobs v. Hoover, »
Minn. 204 (Gil. 189); Watson v. Christie, 2 Bos. & P. 224; Dresser v. Blair,
28 Mich. 501; Brown v. Swinford, 44 Wis. 282; Prentiss v. Shaw, 56 Me. 427;
Voltz V. Blackmar, 64 N. Y. 440.
10* Goldsmith's Adm'r v. Joy, 61 Vt. 488, 17 Atl. 1010, commenting on many
cases. And see Caspar v. Prosdame, 46 La. Ann. 36, 14 South. 317. One as-
saulted and beaten is entitled to at least nominal damages, though the assault
was induced by insulting language. Crosby v. Humphreys (Minn.) 60 N. W.
843.
Gh. 7] THE FAMILY AT COMMON LAW. 447
CHAPTER Vn.
INJURIES IN FAMILY RELATIONS.
154. The Family at (Dommon Law.
155. Master and Servant
15G. Parent and Child.
157. Actions for Injuries to Child.
158. Seduction, Abduction, etc.
159. Separate Actions by Parent and Child.
IGO. Actions by Child against Parent
IGl. Husband and Wife.
1G2-163. Action for Interference with Domestic Rights.
KA, Injuries to Wife— Double Cause of Action.
THE FAMILY AT COMMON LAW.
164. The cominon law did not recognize the family as a
legal entity and as having rights as an association
of persons.^
''Next to the Banctity of the person comes that of the personal re-
lations constituting the family." * However, it seems that prior
to the statute of laborers (23 Edw. IIL 1349) no action at law lay
for any injury involved in such relations.' The preamble of this
statute recites the mortality consequent on the pestilence of that
time, and referred to ''the grievous incommodities which of lack,
especially of plowmen and laborers, may hereafter come." Among
other provisions, it imposed heavy penalties on every person who
procured, harbored, or retained the servant of another during the
1 Gooley, Torts, p. 222. The courts have no Jurisdiction to Interfere as to
when and how a maternal grandmother may visit her grandchildren, merely
because there Is HI feeling between the grandmother and the father. Sue-
cession of Reiss, 46 La. Ann. 347, 15 South. 151. A brother may sue a
brother-in-law. Bums v. Klrkpatrick, 91 Mich. 364. 51 N. W. 893. However,,
the right of a child to sue a parent, and suits between husband and wife,
for torts^ Is denied. Post, pp. 462, 463.
2 Pol. Torts, p. 194. Coleridge, J., In Lumley v. Gye, 2 El. & Bl. 216-25^
And see Bowen v. Hall, 6 Q. B. Dlv. 333.
» Pol. Torts, p. 197.
448 INJURIES IN FAMILY RELATIONS. ICh. 7
time he had contracted to serve. From this statute arose the ac-
tions commonly called "per quod actions," because of the peculiar
wording of the pleadings. The action lay under the statute by
the employer against a third person who interfered with the rela-
tionship of his servant, "per quod servitium amisit" This was
easily adapted so as to be used by a father for the seduction of his
child, and by a husband for abuse by a stranger of his wife (in the
form of pleading, "per quod consortium amisit'').
The principle is an important one, and "extends impartially to
every grade of service, from the most brilliant and best paid to the
most homely, and it shelters our nearest and tenderest domestic
relations from the interference of malicious intermeddlers." *
Many injuries to the family relations might fairly be classed as acts
done at peril, because such wrongs (conspicuously, seduction) are
constantly and properly viewed as trespass. In many instances,
however, the basis of recovery is negligence, especially when the de-
fendant's inadvertence diminishes capacity of servant, wife, or child
to labor. And finally the action of the master for interference
with his contract with his servant has become the basis for a class
of cases commonly known as "malicious interference with contract,"
in which the defendant's evil motive is of the essence of the wrong.
MASTEB AND SERVANT.
166. Certainly, since the statute of laborers,' the common
law has recognized the right of a master to recover
for the actual damage he may have suffered by the
wrongful interference by a third person with his
relationship to his servant, by personal injury to
the servant, or otherwise depriving the master, in
w^hole or in part, of his service.
Nature of Injury.
The action of the master for loss of service is thus of great an-
tiquity, and had its origin in a state of society where service as a
* Haskins v. Royster, 70 N. C. 601-005. Et vide Daniel v. Swearengen, 0
S. C. 303; Morgan v. Smith, 77 N. 0. 37.
B 23 Edw. III. (A. D. 1340).
Ch. 7] MASTER AND SERVANT. 449
rule was a matter not of contract, but of status.' And the interest
of the master was so far regarded as property that the rights which
he acquired by agreement, and being rights in personam, became
rights in rem^ and laid on persons not parties to the contract the
duty to forbear from interfering.'' The courts have paid more at-
tention to the interruption of the relation, perhaps, than to the sub-
ject of the contract*
Fw What W roji// the Action Lien.
The action lies for seduction of servant,* for assault and battery
committed against a servant,^* for negligence of a person impairing
the servant's ability to render service.*^
Actions for enticing servants from their employer, and for know-
ingly harboring servants who had previously left their employer,
arose after the first statute of laborers.^* Tliey survived its re-
peal, and occur in modem practice." Knowingly ^* enticing from
the service of another one who is employed under a contract not
fully executed is an actionable wrong.^* Indeed, from this basis
• Clerk & L. Torts, 155.
T Grinell v. WeUs, 7 Man. & G. 1033; Pig. Torts, 355 et seq.
« Bntterfield v. Ashley, 6 Ciish. (Mass.) 249; Fawcet v. Beavres. 2 Lev. 63;
Sherwood v. Hall. 3 Sumn. (IJ. S.) 127, Fed. Gas. No. 12,777.
» Edmondson v. Machell, 2 Term R. 4.
10 Fluker v. Railroad Co., 81 Ga. 461, 8 S. E. 629.
11 McCarthy v. Guild, 12 Mete. (Mass.). 291; Sullivan v. Union Pac. R. Co.,
3 Din. 334, Fed. Cas. No. 13,599; Pol. Torts, 54. And see Osborne v. Gillett,
8 Exch. 88.
12 Coleridge, J., in Lumley v. Gye, 2 El. & Bl. 216-253; Bowen v. Hall, 6
Q. B. Div. 333.
i« State V. Hoover, 107 N. C. 795, 12 S. E. 451; BouUer v. Macauley, 91
ICy. 135, 15 «. W. 60; Ward v. State, 70 Miss. ^5, 12 South. 249. On a trial
for willfully interfering with and enticing away a servant while under con-
tract for a specific time, under Code 1892, | 1068, the mere employment of
the servant after he had left his former master is not sufficient to sustain
a conviction. Jackson v. State (Miss.) 16 South. 209.
1* Huntoon v. Hazelton, 20 N. H. 388; Gale v. I*arrott, 1 N. H. 28; Coughey
V. Smith, 47 N. Y. 244.
IB Phllp V. Squire, Peake. 83; Haight v. Badgeley, 15 Barb. 499; Duckett
V. Pool. 33 S. C. 238, 11 S. E. 689; Milbume v. Byrne, 1 Cranch. C. C. 239,
Fed. Cas. No. 9,512; Butterfleld v. Ashley, 2 Gray (Mass.) 254; Scidmore v.
Smith, 13 Johns. (N. Y.) 322; Bixby v. Dunlap, 56 N. H 456; Huff v. Wat-
kins, 15 S. C. 82; Sherwood v. Hall, 3 Sumn. (U. S.) 127, Fed. Cas. No. 12,777;
LAW OF T0RT8— 29
4'V> i5j'.t:i> 1% FAKiLT ef: %r:p:\f- [Ch
t^>^r& ha« gn>vii op a bran'-h of Uv in mL> b. E^Ve is mm fiwp«rial
tns^f^ieuu Irji coiuqdeTatloii k therefore poecpoocd imtfl Bali-
nov]« vrrjD^ii are under cooiiideratioaL'* Wbere* the vroii^fal act
caqA^ the d^^rh rif a eerranc iMwerer. h vas h-id at comtmaa law
that DO actioo mill Ile*^ No SDch a«.'r>A Iks vhere the servant
hn^kn no emtfract.^*
llKf wrtmg or>rj.*i«Ted in actual damage bj reaaoo of loss of service
or ca|»citj to serve" It was not actionable per se. It was there-
fore nf^:fnmarj to allege a per quod. L e per qnod snritinm amisit
The afrtum wan not for the direct injnrv. bot for cmseaoent dam-
age. For some time it was doubtful ^* whether the trespaas or case
laj,'* but it was ftnallv decided that both could be used. — trespass
whfre there was violence, and case where there was deceit or neg-
ligffnce, the latter fieing the commoneict instance.^'
Plnmnwr r. Webb, 4 >Uiion ru. 8.) 380. Fed. Casw No. 11.233: Jones t. Block-
er, 43 Oa, 331; Carew v. Rntberford, 106 Mass. 1; Xo4oe t. Brown, 39 N. J.
Ijiw, .>X»; Ilnd^/n r. State, 46 Ga. 624; Lee v. West 47 Ga. 311: Walker
r. CrtmUu 107 Maw. 555; Amea r. Unioa R. Co., 117 Mass. 511; Rosebenry t.
State, GO Aia. lOf); Halter t. Howard, 43 Ga. 601; Caa^rhey t. Smith, 47 X. Y.
244; Sargent v. MatbewfKvD, 38 N. H. &i: Jackson t. State (Miss.) 13 Sooth.
035 (under statute); Armistead r. Chatters (Miss.) 5 South. 9 (under statute).
f Post, p. 634.
It Ost>om T. Glllet, L. R. 8 Exch. 88.
s* Oiinpare Xlchol t. ^fartyn, 2 EIsp. 734, and Hart ▼. Aidridge, 1 Cowp.
54, with Kedne y. Boycott, 2 H. BL 511, and Sykes v. Dixson, 9 AdoL & E.
603; Cox V. Munnf^y, 6 C. B. (X. S.) 375. When service is determined no ac-
tion Wen for hariiorlD^ ser^-ant. Blake ▼. Lanyon, 6 Term R. 221. £t ride
Campb<*U r. Cooper, 34 X. H. 49.
10 l^'iuker ▼. Railroad Ck>., 81 Ga. 461, 8 S. E. 529; Knight t. Wilcox, 14
N. Y, 413. The measure of dauiages is said to be the same as in a suit by
the fier\'ant a^^iiugt the master for a wrongful discharge. Lally y. Cant well.
40 Mo. A pp. 44; Robert Marys* Case, 9 Coke, 113a. And see cases cited su-
pra, note 19.
20 McFadzen ▼. Olivant. 6 Blast, 387, per Bovell, C. J., in Eyans v. Walton,
L. K. 2 C. P. 615; 3 Bl. Comm. 139. Debauching a female servant w^as a
trcHpasH. Edmondson y. Machell, 2 Term R. 4.
ai Mornn y. Dawes, 4 Cow. (X. Y.) 412; Ditcham y. Bond, 2 Maule & S.
430.
32 Chamberlain t. Haglewood, 6 Mees. & W. 515; Marlines y. Gerber. 3
Man. & G. 8a
Ch. 7] PARENT AND CHILD. 451
PARENT AKD CHILD.
166. The common law recognized tbe right of a parent to
recover for wrongs committed against a child,
i^henever such parent suffered damage thereby
through the loss of the service of his child. In
order that a parent should be able to recover at
common law for harm done to his child, he must
show —
(a) Injury to the child.
(b) Consequent loss by the parent of the service of the
child.
The common law regarded the right of the parent to recover for
the seduction, enticement, or other injuries to the child as interrup-
tion of the relationship of master and servant, and not of parent and
child, and did not undertake to compensate the father for wounded
sensibilities.^' Accordingly, the recovery of the parent was based
upon, and varied with, the damage done because of the loss of serv-
ice, and on the relationship of master and servant, not parent and
child. The form of action was "per quod servitium amisit." ** To
entitle the parent to recover, he must show the existence of the re-
lationship of master and servant. Therefore, the parent's right of
action terminates whenever the child leaves the parent's house with
intention not to return.*' It has been held, however, that if the
child in fact returns to the father, the defendant is liable.** So,
when the child has been emancipated by the parent, the right to re-
cover is gone.*'
It is not necessary to show that the child rendered valuable serv-
ices. Pouring tea, or milking cows, has been held to be an act of
23 Evans v. Walton, L. R. 2 0. P. 615.
2* Martin v. Payne, 9 Johns. (N. Y.) 387; Cooley, Torts, 268, et seq.
26 Dean v. Peel, 5 East, 45. Et vide Griffiths v. Teetgen, 15 C. B. 344. A
grown-up daughter, keeping a separate establishment, is not a parent's serv-
ant Manley v. Field, 7 C. B. (N. S.) 96. Bt vide Hedges v. Tagg, L. R.
7 Bxch. 283.
2« Martin v. Payne, 9 Johns. 387; Bigelow, Lead. Cas. 286.
27 McCarthy v. Boston & L. R. Corp., 148 Mass. 550, 20 N. E. 182.
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♦ > V ;^r* ;^,if«*n«^. t;^ ',t vi" •♦T i*^ ct*-- ax<*. tbcc^ =."2K exisc ncoe kiad of
•*'f i^'i- v/wA-r*^ >; i';j*, Mir. a r. P«jT*e- > J- Lia S?7: K«-Iier r. IViciBfilT.
'/ M'J :^n: V'-»»^i r, O/K jO Mo. C!;4: lliilT*-bi:2 T. MiHwiTdL U X. T. ZtS;
!'<• Vr* r Krar.». T, Ir*^ iS, Cj 1<5; WL:ci*y t. E:=:*-r. «• Barii. ST*: Wert ▼.
M'fv>«» ;>, > i, J^w, IM; Ijanib t. Tmrk^-. C7 Md. S5. 8 AiL 7«L>; I>e t-
lf'/C/*'# j;^ ';fa», 7:;/;: ratt^^v^D ▼. Tl*'HiJi»*-.»ii. l'4 Alt 05. Bet see Juseph
r, '.;-.>;ai *Wr, '.u^i ;j M**-j/h- N, P. 2:^:>4. ai-d K..^-.je, X. P. Ex. ML
t* IV/. '1 f, t'of'K H HUu'kt (Ib^f 113. Eren though the sediiccr vw her
*'//.//i'/M'f" >*u/.j/^/rj r, OrayiM»tu 54 Ark. 40I. 16 S. W. 4. Compsre Spei«|it
V OhM^'tst, *l H*i»tk>, 4ir/,, VA rid* Klst t. Faux, 32 L. J. Q. B. 386; Bart-
U-y Y, iU' UUhtyt^r, 4 S, V. .>; White t. MartlaiKt W HL 2j«i: EIliiic:txm T. Bl-
iii<ir»//#i, 47 M,»«, «2'/#; Kf/i'rr>' v. Goweii, 4 Me 33: CliDion r. Toik, 28 Me.
MJ7; H<iJi>-")y r, Hh^-a, 110 MaKn. 147; Nickl««<jii t. SlTyker, 10 Jotms. (X.
Yl \\%', Vtntuiiu Y, Sum Si*#'. Z^% X. Y. 435; Clark ▼. Fitch, 2 Wend. (X. Y.)
4r/^ *J^) Sux Xn-i W.K M«j)v*'|j;jn r. ^lillward, U X. Y. 342; Mercer t. Walms-
U^y, 7, Httr, k 4, ^M<1./ Z!', Mohry v, liffttvasLn, 86 Pa. St. 35S; Hornketh t.
hiitr, H Hi'H£, ik H, J'A FA vUUf WWtum v. Sproul, 3 Pen. & W. iPa.) 49; Feni-
uU'f V, Movi'f, ;} WttUN Sc H. 416; Kiddle t. McGinnis, 22 W. Va. 253: Ben-
Mffh V, iU'inUticUttt, 2 SUinn, 113; li/iberta t. Connelly, 14 Ala. 235; Greenwood
y. Or<^ffiwo<Ml, 28 Md. *MK Holton r. Miller, 6 Ind. 262; Franklin t. McCorkle,
16 lAHi VVi^in,) i%!M, 1 K, W. 250; Hi'wltt v. Prime, 21 Wend. (X. Y.) 79; Doyle
\, Ji'MMijp, 2(1 III M)I^K Uti\\i\mt\\ V. Abtxjtt, 52 Vt 570; Abraliania ▼. Kidney,
Uyi Mann. 222; Knltfhi v. Wilcox, 14 X. Y. 413; Blagge v. Ilsley, 127 Mass.
H>1; HwnmW y. (Imttiben, 31 Mlun. 54, 16 N. W. 458. These cases go beyond
Ch. 7] PARENT AND CHILD. 453
obligation to provide for her support and education, and his conse-
quent right to the profits of her labor.'*
This fiction of service as the basis of the right of parent to sue
for wrongs done the child is generally recognized in America, al-
though much criticised.**
SAME— ACTIONS FOB INJURIES TO CHILD.
167. At common law the right to command the service of
the child, even though temporarily employed else*
where, determined the proper party plaintiff in an
action to recover for wrongs to the ciiild.
At common law the proper party plaintiff was determined by the
person who was entitled to the service of the child. Any one en-
titled to such service could bring suit for wrong to the child.®* The
father was the normal plaintiff.®^ The mother's right to recover is
based upon her right to the service of the child, and therefore could
not exist until she became entitled to the child's service by the
death — or, by statute, the desertion — of the father.'® The mother
the English rule. Dean v. Peel, 5 East, 45; Blaymire v. Haley, 6 Mees. & W.
55; Harris v. Butler, 2 Mees. & W. 539; Grinnell v. Wells, 7 Man. & G. 1033.
Compare Hedges v. Tagg, L. R. 7 Exch. 283-285. This is true even where
the child is an imbecile. Hahn v. Cooper, 84 Wis. 629, 54 N. W. 1022. Et
vide Lipe v. Eisenlerd, 32 N. Y. 229.
84 Kennedy v. Shea, 110 Mass: 147 (citing cases). Et vide Furman v. Van
Sise, 56 N. Y. 435, 444; Emery v. Gowen, 4 Greenl. (Me.) 33; Clinton v. York,
26 Me. 167; Griffiths v. Teetgen, 15 C. B. 344. Father's inability to support
child does not, by itself, deprive him of right. Benson v. Remington, 2 Mass.
113; Martin v. Payne, 9 Johns. 387, Bigelow, Lead. Cas. 286.
85 Ellington V. Ellington, 47 Miss. 329 (reviewing authorities at length);
Mulvehall v. Millward, 11 N. Y. 342, Chase, Lead. Cas. 218; Hornketh v. Barr,
8 Serg. & R. (Pa.) 36; Osborn v. Francis, 44 N. J. Law, 441; Clark v. Fitch,.
2 Wend. (N. Y.) 459; Ingersoll v. Jones, 5 Barb. (N. Y.) 661; Kennedy v.
Shea, 110 Mass. 147. So in England: Sergeant Manning's note to Grinnell
V. Wells, 7 Man. & G. 1033-1044; Starke's note to Speiglit v. Oliviera. 2
Starkle, 493^96.
8a Hamilton v. Lomax, 26 Barb. (N. Y.) 615; Pence v. Dozier, 7 Bush (Ky.)
133; EUington v. Ellington, 47 Miss. 329; White v. NeUis, pi N. Y. 405.
87 Yossel V. Cole, 10 Mo. 634.
8s Furnam v. Van Sise, 56 N. Y. 435; Sargent v. Dennison, 5 Cow. (N. Y.) 106.
Et vide Ryan v. Fralick, 50 Mich. 483, 15 N. W. 561; Heinrichs v. Krechner,
454 INJURIES IX FAMILY BELATIOKS. [Ch. 7
could not recover when the daughter became pregnant after she
came into the mother's service.*® Generally, any person who stands
in loco parentis, and who was entitled to the service of the child,
may recover. Thus, a guardian,^^ or a stranger in blood who has
adopted the person seduced, may be a proper party plaintiff.**
At Common Law the Seduced Child covld not Recover against Her Seducer,
The seduced child could not recover at common law, not only be-
cause in many cases she was a party to the wrong, but because the
only recognized action was based upon the loss of service.** The
injustice of the common-law rule is well illustrated by Ellington v.
Ellington.*' There a daughter made her permanent home with her
seducer, her uncle. Her parent could not sue, for the child was
out of his service and beyond control; the child could not sue, for
she was particeps criminis; the uncle could not sue, for he was the
author of the outrage. ''Thus, the ruin of the girl must go unre-
venged, and the author of it go unwhipt of justice."
35 Mo. 578; Felkner v. Scarlet, 29 Ind. 154; Gray v. Durland, 50 Barb. (N. Y.)
100; Texas & P. Ry. Co. v. Brick, 83 Tex. 52G, 18 S. W. 947; Davidson v. Ab-
bott. 52 Vt. 570; Parker v. Meek, 3 Sneed (Tenn.) 29.
»B Logan V. Murray, 0 Serg. & R. (Pa.) 175; Dnnlap v. Linton, 144 Pa. St.
335, 22 Ail. 819. £t vide Soutb v. Deniston, 2 Watts (Pa.) 474.
40 Femsler v. Moyer, 3 Watts & S. (Pa.) 410; Blanchard v. Ilsley, 120 Mass.
4S7.
41 Ingersoll v. Jones, 5 Barb. (N. Y.) 661; Irwin v. Dearman, 11 East, 23.
So a stepparent: Bartley v. Rltchmyer, 4 N. Y. 38. Putative grandfather:
Moritz V. Gamhart, 7 Watts (Pa.) 302. An aunt: Edmondson v. Machell, 2
Term B. 4. An uncle: Manvell v. Thomson, 2 Car. & P. 303; Davidson v.
Goodall, 18 N. H. 423; IngersoU v. Jones, 5 Barb. (N. Y.) GUI; Bracy v. Klbbe.
31 Barb. (N. Y.) 273; Clark v. Fitch, 2 Wend. (N. Y.) 459; Maguinay v. Saii-
dek, 5 Sneed (Tenn.) 146; Certwell v. Hoyt, 6 Hun (N. Y.) 575; Martin v.
Payne, 9 Johns. (N. Y.) 3S7; Kinney v. Laughenour, 89 N. C. 305; Millar v.
Thompson, 1 Wend. (N. Y.) 447; Morgan v. Dawes, 4 Cow. (N. Y.) 412; Bait-
ley V. Ritchmeyer, 4 N. Y. 38; MulvehaU v. Millward, 11 N. Y. 322; Ball v.
Bruce, 21 111. 1(51; Daln v. Wyckoff, 18 N. Y. 45; Keller v. Donnelly, 5 Md. 211;
Moritz V. Garhart, 7 Watts (Pa.) 302; Blanchard v. Ilsley, 120 Mass. 487; Com-
missioners* Court of Butler Co. v. McCann, 23 Ala. 599. But see Femsler v.
Moyer, 3 Watts & S. (Pa.) 416.
4 3 Hutchinson v. Horn, 1 Ind. 363; Smith v. Richard, 29 Conn. 432; Hamilton
V. Lomax, 26 Barb. (N. Y.) 615; Pence v. Dozler, 7 Bush (Ky.) 133.
4s 47 Miss. 32i^-340.
Ch. 7] PARENT AND CHILD. 455
168. Ezemplaxy damages were allowed to the parent for
seductioii^ abduction, and the like, so that recovery
for the injury to the relation of parent and ciiild,
rather than of master and servant, was secured.
No action apart from statute can be maintained by the father for
injury in his parental capacity; but in the struggle between sub-
stantial justice to the parent and the precedents, the courts, in ac-
tions for seduction, have clung to the latter and striven to attain
the former, until the anomaly has been produced of requiring the
action to be prosecuted by the father for an injury inflicted upon him
in his relation as master, and permitting a recovery in his relation
as a parent** The allowance by the court of punitive damages
enabled them to make the fiction of service innocent, and to do sub-
stantial justice, notwithstanding it. Accordingly, while the loss of
service is the ostensible basis of recovery, it is largely a matter of
form, and the real grievance — ^the parent's humiliation and disgrace
— is given a substantial remedy.*" He may recover "all he can feel
from the nature of the injury.'' *•
4-A 21 Am. & Eng. Enc. Law, 1009. The action is in substance for a wrong
to the person of the child. The loss of service is in most cases purely
imagiuarj', and is characterized by a sensible writer as "one of the quaintest
fictions in the world." Taylor, C. J., in McClure v. MUler, 11 N. 0. 133.
«6 "However difiicalt to reconcile to principle of giving greater damages,*'
said Lord EUenborough, in Irwin v. Dearman, 11 East, 24, "the practice is be-
come inveterate and cannot now be shaken." Et vide Tullldge v. Wade, 3
Wils. 18; Hudkins v. Haskins, 22 W. Va. 645; Tillotson v. Gheetham, 3 Johns.
(N. Y.) 56; Barbour v. Stephenson, 32 Fed. 66; Simpson v. Grayson, 54 Ark.
404, 16 S. W. 4; Damon v. Moore, 5 Lans. (N. Y.) 454; Dain v. WyckofC, 7 N. Y.
191, 18 N. Y. 45; Lipe v. Elsenlerd, 32 N. Y. 229; Lawyer v. Frltcher, 54 Hun
(N. Y.) 580, 7 N. Y. Supp. 909; Id., 130 N. Y. 239, 29 N. E. 267; Chellis v. Chap-
man, 125 N. Y. 214-218, 26 N. B. 308.
4e Garretson v. Becker, 52 111. App. 255; Phelin v. Kenderdine, 20 Pa. St. 354.
4>> ITJZkltM 15 FAMILY EELAniS*. £Ch- 7
169. fliatatory changes and judicial itrpialiniif tend to
aboUflh the Hetiai of aerriee, and to ifwwigiiiiw the
Tifpat of the parent to aoe for the injury to the
fiundy telation, and of the ddld to zeoorer for its own
pecnliar wrong. The oonaent of the child to inter-
eonme will bar ito right to recorer, hot not the
right of the parent. Conaent of the parent will
bar him right to reooTor, and Us indifTerence may
mitigate damagea.
Bj statutes of rarioas kinds, and in rarring degrees, the fictiaa
of proof of loss of service as a condition precedent to the li^t of
the parent to recover for injuries done to the child has beoi, to a
large extent, abolished.^' The tendency of legislation and decision
is to recognize, the reasonable view that when a child is injored the
parent suffers one injury, which, according to circumstances, may or
may not be based upon lawful service; and the diild, another and
distinct injury; and the master, under some circumstances^ a further
damage in loss or diminution of service.
WfuU is Sedtidum*
H^mI notion is the act of a man in enticing a woman to commit un-
lawful sexual intercourse with him by means of persuasion, solicita-
tion, promises, bribes, or other means without the employment of
force.** *
It has been inMi^ted that mere persuasion of a previously chaste
woman, if followed by illicit intercourse, as the result thereof, may
constitute seduction.*'' An unchaste woman, who has reformed,
may be seduc^fd.^^ A criminal assault, or rape, however, is not
4T Howl T. Sudderth. Ill N. C. 215, 16 S. E. 397; Stoudt v. Shepherd, 73
MU'h, 588, 41 N. W. 690 (see How. Ann. St §§ 7779-7781); Riddle v. Mc-
(iinnis, 22 W. Va. 253; Gardner v. Kellogg, 23 Minn. 463; EUington v. Elling-
ton, 47 MlBH. 329-340; Fry v. Leslie, 87 Va. 269, 12 S. E. 671; Scarlett v.
Norwood, 115 N. C. 284, 20 S. E. 459; Schmit v. Mitchell (Minn.) 61 N. W. 140.
4« Black, Law Diet 1074.
*• (Jraham v. McReynolds, 90 Tenn. 673, 18 S. W. 272. Et vide Robin-
son V. I'owers, 129 Ind. 480. 28 N. E. 1112; Badder v. Keefer, 91 Mich. 611,
52 N. W. 00; Ilallock v. Kinney, 91 Mich. 57, 51 N. W. 706.
fio Ptttlerson v. llnyden, 17 Or. 238, 21 Pac. 129; People v. Clark, 33 Mich.
112.
Ch. .7] PARENT AND CHILD. 457
properly the basis of an action in the form of seduction, although it
may entitle to as great damages/^ There is no substantial differ-
ence between seduction and debauchery, as a cause of action.*'
Recovery by the Person Seduced,
The right of an> unmarried female to sue for her own seduction,
and of the father (or, in case of his death or desertion, the mother)
lo sue for damages for seduction, although the daughter be not liv-
ing with, or in the service of, the parents, or although there be no
loss of service, is now enforced by many courts.'* Where, how-
ever, the intercourse is merely the result of mutual desire,'* or of
a mere appeal to passion,'' seduction is not made out so as to enti-
tle the woman seduced to recover. There must be some pretense
or artifice used." A promise to marry is not essential to consti-
tute the wrong, but will aggravate damages.'^
Bi Hodges V. Bales, 102 Ind. 404, 1 N. E. 092; Breon v. Henkle, 14 Or. 494,
13 Poo. 289. But see Watson v. Watson. 53 Mlcb. 1G8. 18 N. W. 605; Ken-
nedy V. Shea, 110 Mass. 147.'
02 Stoudt V. Shepherd, 73 Mich. 588, 41 N. W. 006; 1 Chit. PL 138; 2 Chit.
PL 265-268, 375, 370.'
B8 In North Carolina, feigned issues have been abolished by the constlta-
tlon. Accordingly, a woman, when of age, and not her father, as the real
I»arty in interest, may recover for her seduction. Hood v. Sudderth, 111 N.
C. 215, 16 N. E. 307; Ellington v. KUington, supra. So, for example, in Indi-
ana and Iowa, even by a wom'an not of age. McCoy v. Trucks, 121 Ind. 292,
23 N. E. 93; Stevenson v. Belknap, 6 Iowa, 97. Et vide Franklin v. Mc-
Corkle, 16 Lea (Tenn.) 609-612; White v. Gregory, 126 Ind. 95. 25 N. E. 806;
Hodges V. Bales, 102 Ind. 494, 1 N. E. 692; De Haven v. Helvle, 126 Ind. 82.
25 N. E. 874; Becker v. Mason. 93 Mich. 336, 53 N. W. 361; Hawn v. Bang-
hart. 76 Iowa. 683, 39 N. W. 251; Badder v. Keefer, 91 Mich. 611, 52 N. W.
60. As to statutory changes, see 3 Lawson, Rights, Rem. &, Pr. f 1112.
04 Becker v. Mason, 93 Mich. 336, 53 N. W. 361. As to consent after re-
sistance, 'see Egan v. Murray, 80 Iowa, 180, 45 N. W. 563.
56 Hawn V. Banghart. 76 Iowa, 683, 39 N. W. 251.
»• Bailey v. O'Bannon, 28 Mo. App. 39.;
»T Franklin v. McCorkle, 16 Lea (Tenn.) 609. In an action for seduction,
plaintiff testified that she resisted defendant's solicitations for three mouths,
and then yielded on his promise to maiTy her, and that but two acts occurred.
Defendant admitted the intercourse, but denied that It was induced by a
previous promise of marriage. Hdd^ that it cannot be said, as a matt^ of
4 z*^ tS JURIES a FAMILY SEIATIOJBL
Ji/jyjr^ry by ParenL
The OMMent of an hdant dan^ter is not m bar to the f atlier^s recor-
ery/* The parent maj, howerer, be disentitled bj his consent to
the seduction, and, faj negligence or indilference, rednce the dam-
ages to wiiich he maj be entitled.** Pregnancy is not esspntial to
eoniftitate seduction. C<Hnninnication of Tmereal disease is soffi-
i:\ent;** or incapacity to labor, withont pregnancr or disease.**
It Is not material to the father's recoreiy whether the wrong done
was accomplished by force, artifice, or petsnasion.*'
Damages.
iHunages in sedaction exhibit the logical application of the gen-
eral principles as to damages.** General damages may be recor-
ered,** bat not remote damages; as for the illness of the daughter
three months after seduction, produced by threats of a suit for se-
duction.** Becorery may be had for the natural consequences
which resulted from the wrong.** Thus, pregnancy, childbirth,
law, that tbe interconne was of a mutual desire, but that the truth of the
4'hBrge was a question for the jury. Becker t. Mason, 98 Mich. 336, ii3 N. W.
PSV Complaint need not show reliance on such promise. Shewalto' t. Bersr-
inan, 123 Ind. 155, 23 N. E. G86; McCoy t. Trucks, 121 Ind. 292, 23 N. E. 91
Et Tide EUiott Y. Nicklin, 5 Price, 641; Tullidge t. Wade. 3 WUs. 18; 2 Starkie,
Kr. 732, note 7.
•• White y. Murtland, Ul 111. 250; Leucker ▼. Steileu, 89 lU. 544.
6» Traris t. Banker. 24 Barb. (N. Y.) 614; Parker ▼. Elliott, 6 Munf. (Va.)
587; Smith ▼, ^la^ten, 15 Wend. (N. Y.) 270. As where father allowed young
I>eople while courting to sleep together. Seager v. Sligerland, 2 Caines (N.
Y.) 219; Zerftng v. Mourer, 2 O. Greene (Iowa) 520; Graham y. Smith, 1 Edm.
Hel. Cas. (N. Y.) 267.*
•0 White y. Nellis. 31 N. Y. 405.
»i Abnihams y. Kidney, 104 Mass. 222.
•2 Lawrence y. Spence, 99 N. Y. 0«U, 2 N. E. 145; Layery y. Crooke, 52 Wis.
(il2, 9 N. W. 599. •
•s Ante, c. 5, as to damages.
•4 Slmonds y. Busby, 119 Ind. 13, 21 N. E. 451.
so Knight y. Wilcox, 14 N. Y. 413, oyemiling 18 Barb. 212. Compare this
case with Blagge y. Ilsley, 127 Mass. 191. Compare Boyle y. Brandon, 13
Mees. & W. 738. with Manvell y. Thomson, 2 Car. & P. 303.
•• White y. Murtland, 71 111. 250; Klopfer y. Bromme, 26 Wis. 372; Brown
y. Klngsley, 38 Iowa, 220; Hewitt y. Prime, 21 Wend. (N. Y.) 79.
€h. 7] PARENT AND CHILD. 459
sickness, and the loss of social standing,*^ may be considered in the
assessments of damages, where the female is the plaintiff.*® Loss
of service during the child's minority,*^ expense incurred, mental
suffering, family dishonor, and the demoralizing intluence on other
children, are proper elements of damages to be considered by the
jury, where the action is by the parent.^*^ The gist of the action
is, of course, punitive damages J ^ Peculiar circumstances, show-
ing deception, promise to marry, youth and innocence of the woman,
publicity ^* given to the wrong, a proposition to procure abortion,^*
all will serve to aggravate damages. On the other hand, the pre-
vious unchastity, the willingness of the child, the indifference of the
parent in exposing his child before the seduction, and the insensi-
•7 Hawn V. Banghart, 76 Iowa, 683, 30 N. W. 251.
«8 Wilson V. Shepler, 86 Ind. 275.
•» Cuming V. Broc^yn City R. Co., 109 N. Y. 95, 16 N. E. 05. Some proof of
loss of service necessary, GrinneU v. Wells, 7 Man. & G. 1033; Eager v. Grim-
wood, 1 Exch. 61.
70 Philips V. Hoyle, 4 Gray (Mass.) 568; Rollins v. Chalmers, 51 Vt. 51^;
Taylor v. Shelkett, 66 Ind. 297; Wandell v. Edwards, 25 Hun, 498; Barbour
V. Stephenson, 32 Fed. 66; Akerley v. Haines, 2 CaJnes, 292; Hogan v. Cre-
gan, 6 Rob. (N. Y.) 138; Stiles v. Tilford, 10 Wend. 338; Wilds v. Bogan, 57
Ind. 453; Hatch v. Fuller, 131 Blass. 574; Homkcth v. Ban% 8 Serg. & R. 36;
Kendrick v. McCrary, U Ga. 603; Clem v. -Holmes, 33 Grat (Va.) 722;
I^ucker v. Stelleu, 89 lU. 545; Grable v. Margrave, 4 111. 372; Fhelin v. Ken-
derdlne, 20 Pa. St. 354.
71 Terry v. Hutchinson, L. R. 3 Q. B. 599; Verry v. Watkins, 7 Car. & P.
308. $6,750 have been allowed. Lavei-y v. Crooke, 52 Wis. 612, 9 N. W. 599;
Badgley v. Decker, 44 Barb. (N. Y.) 577; Torre v. Summers, 2 Nott. &. McC.
(S. C.) 267; Fox v. Stevens, 13 Minn. 272 (Gil. 252); Morgan v. Ross, 74 Mo.
318; Davidson v. Abbott, 52 Vt. 570; Johnston v. DisbroVv, 47 Mich. 59, 10 N.
W. 79; Giese v. Schultz, 69 Wis. 521, Si N. W. 913; Franklin v. Mci^rkle,
16 Lea (Tenn.) 609; Fry v. Leslie, 87 Va. 269, 12 S. B. 671; Ingersoll v. Jones,
5 Barb. (N. Y.) 661; Balrd v. Boehner, 77 Iowa, 622, 42 N. W. 454; Kerns v.
Hagenbuchle (Super. N. Y.) 17 N. Y. Supp. 369; Cowden v. Wright, 24 Wend.
(N. Y.) 429. But see Cuming v. Brooklyn City R. Co., 109 N. Y. 95, 16
N. E. 65.
7 2 Simons v. Busby, 119 Ind. 13, 21 N. E. 451; Flemington v. Smithers,
2 Car. & P. 292; Whitney v. Hitchcock, 4 Denio, 461.
78 Franklin v. McConkle, 16 Lea, 609; Lawyer v. Fritcber, 130 N. Y. 239,
29 N. E. 267; Fox v. Stevens, 13 Minn. 272 (Gil. 252).
460 INJUUIES IX FAMILY RELATIONS. [Ch- 7
bility, will all serve to mitigate damages.'* The pecuniary condi-
tion of the seducer may be considered.'*
Other Injuries to ChUdren,
An action lies by the parent for the abduction, the enticement,
or wrongfully harboring a child, as well as for its seduction.'*
Thus, a father may sue a mother who enticed his daughter for the
T4 Bolton V. Miner, 6 Ind. 263. Ante. p. SOfiL But previoiis preseits and
payments to woman seduced wUl not RnsseU t. Chambers, 31 Minn. 54, 16
N. W. 458; Stoudt v. Shepherd, 73 Mich. 588, 41 X. W. 696; Cochran t.
Ammon, 16 m. 316; Peters y. Lake, 66 lU. 209; Simpson v. Grayson, 54 Ark,
404, 16 S. W. 4; Shattuck v. Hammond, 46 Vt. 466; Hoffman t. Kemera-, 44
Pa. St 4.j2; I^ve v. Masoner, 6 Baxt (Tenn.) 24; Carder ▼. Forehand, 1 Mo.
704; White v. MurUand, 71 III. 250; Patterson v. Hayden, 17 Or. 238, 21 Pac
129; Wallace v. Clark, 2 Overt (Tenn.) 93; Drieh v. Davenport, 2 Stew. (Ala.)
2(W; Hawn v. Banphart, 76 Iowa, 68:1, 39 N. W. 251; Fry v. Leslie, 87 Va.
269, 12 S. E. 671; Leckey v. Bk)ser, 24 Pa. St 401; McAulay v. Bhrkhead, 13
Ired. (N. C.) 28; TiUotson v. C^eetham, 3 Johns. 56; Shewalter v. Bergman,
123 Ind. 155, 23 N. E. 686; Grable v. Margrave. 3 111. 372; Rea v. Tucker, 51
lU. 110; Thompson y. Clendening, 1 Head. (Tenn.) 287; Haynes v. Sinclair,
23 Vt. 108.
" Peters v. Lake, 66 HI. 206; MuUin v. Spangenberg, 112 ni. 140; White v.
Gregory, 126 Ind. 95, 25 N. B. 806; De Haven v. Helvle, 126 Ind. 82, 25 N. B.
874; Grable v. Margrave, 4 Scam. (Ul.) 372; Hosley v. Brooks, 20 HI. 116;
I^veiT V. Crooke, 52 Wis. 612, 9 N. W. 599. Evidence: The plaintiff is not
confined as to evidence to a particular day or wet'k, or to a particular act but
may give evidence covering many acts and extending over considerable time^
McCoy V. Trucks, 121 Ind. 292, 23 N. E. 93; Badder v. Keefer, 100 Mich. 272,
58 N. W. 1(X)7; may introduce evidence of the time when she became preg-
nant Baird v. Boehner, 77 Iowa, 622, 42 N. W. 454; evidence of certain acts
and statements of plaintiff, not limited to a time before the alleged seduction,
was Inadmissible, Cliffton v. Granger, 86 Iowa, 573, 53 N. W. 316; bad repu-
tation of the woman after seduction is inadmissible, Shewalter v. Bergman,
123 Ind. 155, 23 N. E. 0S6; correspondence referring to the alleged seduction
is proper evidence, Lee v. Cooley, 13 Or. 433, 11 Pac. 70; where pregnancy
was alleged to have resulted from tlie intercourse with defendant, evidence
that the girl had intercourse with anotlier man after the seduction, but before
pregnancy, is incompetent, Ayer v. Colgrove, 81 Hun, 322, 30 N. Y. Supp. 788.
T6 A father may maintain an action for harboring and secreting his minor
daughter, and persuading her to remain absent from her family and service,
without his consent. Stowe v. Heywood, 7 Allen, 118. As to an action for
harboring plaintiff *s son, and refusing to allow plaintiff to get possession and
control of him, see Loomis v. Doets, 30 Atl. 612.
•^
€Ij. 7] PARENT AND CHILD. -1^1
benefit of her son/^ The consent of the father, when obtained by
fraud, is no defense to such an action.'' • Nor is the general loose-
ness of morals of the enticed child and of her family a defense.^*
But the parent may not recover damages for the improper expul-
sion of his child from school,*® or procure an injunction to prevent
publication of its portrait,®^ because there is no loss of service, and
the law does not compensate for such sentimental suffering.
The law, regarding the right of service as property,®* recognizes
two classes of injuries, when an infant suffers personal injury, as
distinguished from seduction, viz. the injury of the parent because
of his loss of service consequent upon the damages done, and the
injury of the child because of the damage inflicted upon him. The
right of the father to recover indemnity for expense of care, medical
attendance, and the like, to which he was put by injury to his chUd,
although it were incapable of rendering service, was duly recog-
nized.®* This doctrine has been declared until it is now asserted
without reservation that an action of this sort rests, not upon the
relation of master and servant, but upon that of parent and child, and
that the damages may include a reasonable allowance for prospective
loss of service, based upon the evidence in the case.®* The in-
fant may sue, by the proper statutory parties, for the damage he
suffers; and the father, on his peculiar separate cause of action.
7T Bradley v. Shaffer (Sup.) 19 N. Y. Supp. 640. Bt vide PoUock v. PoHock
<Com. PI. N. Y.) 29 N. Y. Supp. 37.
7 8 As where fraud obtained consent to marriage to a bigamist, Lawyer v.
Fritcher» 130 N. Y. 239» 29 N. E. 207. Et vide Kreag v. Anthus, 2 Ind. App.
482, 28 N. B. 773.
7 8 Dobsori V. Cothran, 34 S. C. 518, 13 S. E. 679.
80 Donahoe v. Richards, 38 Me. 376; Spear v. Gummings, 23 Pick. 224; Ste-
phenson V. Hall, 14 Barb. 222; Sherman v. Ghaxlestown, 8 Gush. 161.
81 Murray v. Gast Lithographic & Engraving Go. (Gom. PL N. Y.) 28 N.
Y. Supp. 271.
82 HaU V. HoUander, 4 Barn. & G. 660. While it is said the child must be
old enough to be capable of rendering service, this does not show that, if a
Jury chose to find that a very strong child was capable of servico, their ver-
dict would be disturbed. Webb's Pol. Torts, 282.
88 Dennis v. Glarke, 2 Gush. (Mass.) 347.
8* The Witness, 18; Netherland-American Steam Nav. Go. v. Hollander, 8
G. G. A. 169, 59 Fed. 417; Guming v. Brooklyn Gity R. Go., 109 N. Y. 95, 16
N. E. 65.
>
462 INJURIES IN FAMILY RELATIONS, [Ch. 7
Each cause of action has its peculiar rule of damages. Thus, where
the child has not been emancipated by the parent, not he, but the
father, is entitled to compensation for his diminished capacity to
earn money during the time intervening between the injury and
his arrival at majority.** The father may also recover actual loss
of service as distinguished from prospective and expenses neces-
sarily consequent on the care and cure of the child.** The negli-
gence of the parent in allowing the child to undertake employment
exposing him to dangers disapportioned to his years and discretion
may prevent recovery.*' The father may prosecute for an assault
on his child.**
160. So long as the parent is under obligation to care for^
guide, and control, and the child is under recipro-
cal obligation to aid, comfort, and obey, it would
seem that no action for tort will lie on behalf of
such child against a parent.
The reason assigned for this rule is that "the peace of society
and of the families composing society, and a sound public policy,
designed to subserve the repose of families and the best interests
of society, forbid to the minor child the right to appear in court in
the assertion of a claim to civil redress for personal injuries suffered
at the hands of the parent. The state, through its criminal laws^
8B Texas & P. Ry. Co. v. Morin, 66 Tex. 225, 18 S. W. 345 (commenting on
Houston & G. N. Ry. Co. v. Miller, 51 Tex. 270; Sa>vyer v. Sauer, 10 Kan.
519, and Abeles v. Bransfleld, 19 Kan. 16); Texas & P. Ry. Co. v. O'Donnell,
58 Tex. 27.
8« Dollard v. Roberts, 130 N. Y. 269, 29 N. E. 104. And, generally, see
Barnes v. Keene, 132 N. Y. 13, 29 N. B. 1090; Texa« & P. Ry. C'O. v. Brick,
83 Tex. 526, 18 S. W. 947; Id., 83 Tex. 598, 20 S. W. 511; Martin v. Wood,
52 Hun, 613, 5 N. Y. Supp. 274; Walker v. Second Ave. Ry. Co. (Super. N. Y.)
6 N. Y. Supp. 536; Buck v. People's St. Ry. E. L. & P. Co., 46 Mo. App. 555;
Pennsylvania R. Co. v. Zebe, 33 Pa. St. 318; Schmitz v. St Louis, I. M. & S.
Ry. Co., 46 Mo. App. 380; Mauerman v. St Louis, I. M. & S. Ry. Co., 41 Mo,
App. 348; Louisville & N. R. Co. v. Willis, 83 Ky. 57.
87 Weaver v. Iselin, 161 Pa. St. 386, 29 Atl. 49; Gulf, C. & S. F. R. Co. v.
Redeker, 75 Tex. 310, 12 S. W. 855; Gulf, C. & S. F. R. Co. v. Vieno (Tex-
Civ. App.) 26 S. W. 230.
88 Hinckle v. State, 127 Ind. 490, 26 X. E. 777.
Ch. 7] . HUSBAND AND WIFE. 46S
will give the minor child protection from parental violence and
wrongdoing, and this is all the child can be heard to demand."
Therefore a minor daughter, who had been married, but who, at the
time of the alleged injury, was separated and living apart from her
husband, cannot sue her parents for unlawful incarceration in an
insane asylum.'*
HUSBAND AND WIFE.
161. No action in tort ordinarily lies between the husband
and wife for injury to person or reputation, although
it may, under statute, lie for injuries to separate
property.
While it may be true that the law do6s not recognize the family,
as an abstract entity, it recognizes and protects the various rela-
tionships involved. The right of the husband to moderately cor-
rect his wife, if at one time recognized,*^ has probably passed en-
tirely away.'* Nor has the husband any right, when his wife re-
fuses to live with him, to take her person by force, and restrain her
of her liberty until she is willing to render to him conjugal rights.**
The wife can sustain no action for a tort by the husband to her per-
son or reputation, even after divorce, where the tort was committed
upon her while the relationship existed.*' With the development
8» Hewlett V. George, 68 Miss. 703, 9 South. 885. And see 7 Am. & Eng.
Enc. Law, 665. Cf. Cooley, Torts, 170.
»o state V. Rhodes, 1 PhU. (N. C.) 453.
»i Cooley, Torts (2d Ed.) 262, citing Pearman v. Pearman, 1 Swab. & T. 600;
People V. Winter, 2 Parker, Cr. R. 10; Com. v. McAfee, 108 Mass. 458; Poor
V. Poor, 8 N. H. 307-313.
»2 Cochrane's Case, 8 Dowl. 630, overruled by Reg. v. Jackson [1891] 1 Q.
B. 671.
»8 Slander: Preethy v. Freethy, 42 Barb. 641. Assault and battery:
Ijongendyke v. Longendyke, 44 Barb. 306; when committed during coverture,
and action is brought after divorce, Phillips v. Bamett, 1 Q. B. Div. 436;
Peters v. Peters, 42 Iowa, 182; Main v. Main, 46 111. App. 106; Abbott v. Ab-
bott, 67 Me. 304; Libby v. Berry, 74 Me. 286; Nickerson v. Nickerson, 65 Tex.
281; Phillips v. Barnett, 1 Q. B. Div. 436, 17 Moak. 100; Schultz v. Schultz,
89 N. Y. 644. The dissenting opinion and interesting discussion in this case
referred to in Bertles v. Nunan. 02 N. Y. 152, will be found in the report of
same case, 27 Him, 26-^34. A husband cannot sue his wife to recover dam-
^
464 INJURIES IN FAMILY RELATIONS. . [Ch. 7
of the modem law as to separate property of a wife, however, the
right of the husband to sue his wife, and of the wife to sue her hus-
band, for torts arising out of injury to property, has been recog-
nized.®*
SAME— ACTION FOR INTEBFEEENCE WITH DOMESTIC
BIGHTS.
162. At common law, on the fiction of services lost, and,
generally, under existing law, largely on the theory
of pure tort, a husband not disentitled by his own
conduct, may maintain an action against a third
person for wrongful violation of, or interference
with, the personal domestic duties owed him by
his wife, notwithstanding her acquiescence in the
wrong,
168. 'The corresponding right of the wife to sue has been
frequently, but not universally, recognized.
Action by the Husband for Defilement of the Wife.
As against an adulterer, a husband had at common law an ac-
tion of criminal conversation. This has been abolished.^'* The
real remedy for many years was the action, adopted from that for
enticing away a servant per quod servitium amisit, in the form
per quod consortium amisit The same latitude being allowed in
ages for deceit by which be was induced to marry her. Kujek t. Goldman
(Com. PI.) 29 N. Y. Supp. 294.
»* The husband may sue the wife for her conversion of his property, Mason
V. Mason, 66 Hun, 386, 21 N. Y. Supp. 306; Ryerson v. Ryerson (Sup.) 8 N.
Y. Supp. 738; or her brother for removing household furniture at her direc-
tion. Bums V. Kirlspatrick, 91 Mich. 364, 51 N. W. 893; Bruce v. Bruce, 95
Ala. 563, 11 South. 197; Good v. Good, 39 W. Va. 357, 19 S. B. 382. In gen-
eral, the husband may not sue for damages to his wife's estate. Central
Railroad & Banking Co. v. Bryant, 89 Ga. 457, 15 S. E. 537. But compare
Whalen v. Baker, 44 Mo. App. 290, with Kavanagh v. Barber, 131 N. Y. 211,
30 N. B. 235. However, Champlin, J., In Smith v. Smith, 73 Mich. 445, 41
N. W. 499, 500, said, **We are not prepared to decide that a married woman
Ln the state [Michigan] may not maintain an action of libel against her hus-
band."
•5 20 & 21 Vict c. 85, §§ 33-39.
Ch. 7] HUSBAND AND WIPE. 465
the estimate of the husband's damages as were granted the parent
in suing for seduction made the proceeding almost a penal one.**
The tendency of current legislation and decision, however, is to
base the action on the pure theory of tort, and to ignore the lim-
itation introduced by the fiction of service. The willingness or
unwillingness of the wife, the loss or the absence of service, does
not affect the right of the husband to sue. The essential right
injured is the right of a man to exclusively beget his own children.
Loss of society, affection, and service will be presumed.'^ The
mere separation of the wife from the husband will not prevent his
recovery.** But negligence of the husband, though not amounting
to consent, may mitigate damages.** Neither the death ^*® of the
wife before suit brought, nor cohabitation by the husband with tho
wife after knowledge of adultery, is a bar.^^^ Punitive damages
will be allowed.*** Consent of the husband, whether to the spe-
cific act, or general immorality of the wife, is a bar to his right
»• 3 Bl. Comm. 13&, 140; Pol. Torts, 108; Ck>nieUu8 v. Uambay, 150 Pa. St
359, 24 AU. 515.
»7 Bigaonlette v. Paulet, 134 Mass. 123; Weedon v. TimbreU, 5 Term R.
360; Adams v. Main, 3 Ind. App. 232, 29 N. E. 792; Yundt v. Hartrunft, 41
lU. 9; Peters v. Lake, 66 111. 206; Coleman v. White, 59 Ind. 548: Wales v.
Miner, 89 Ind. 118; Hadley y. Heywood, 121 Mass. 236; Johnston v. Dlsbrow,
47 Mich. 59. 10 N. W. 79: Jacobson v. Slddal, 12 Or. 280. 7 Pac. 108; Van
Vacter v. McKillip, 7 Blackf. (Ind.) 578; Barnes v. Allen, 30 Barb. (N. Y.) 663.
68 But see Michel v. Dunkle, 84 Ind. 544; Wood v. Mathews, 47 Iowa, 409;
Sherwood v. Tltman, 55 Pa. St 77.
99 Bunnell y. Greathead, 49 Barb. 106. Compare Sturam y. Hummell, 39
Iowa, 478.
100 Bromley y. Wallace, 4 Esp. 237; Gariscm v. Burden. 40 Ala. 515; Sand-
born y. Neilson, 4 N. H. 501. And see Clouser y. Clapper, 59 Ind. 548.
101 Verholf y. Yanhouwenlengen, 21 Iowa, 429. The forgiveness is to the
wife, not to her seducer. Clouser v. Clapper, 59 Ind. 548.
102 Cornelius y. Hamlmy, 150 Pa. St. 359, 24 Atl. 515 (dissenting opinion
of Williams, J.); French y. Deane, 19 Colo. 504, 36 Pac. 609; Johnston y.
Disbrow, 47 Mich. 59, 10 N. W. 79. As to special damages in an acticMi for
alienating the affections of plaintiff's wife, it is error to direct the jury that,
if they find that plaintiff contracted a yenereal disease from his wife on ac-
count of her association with defendant, they should consider such fact in
estimating the damages. In the absence of allegations in the petition of spe-
cial damages sustained by reason of such fact Dowdell y. King, 97 Ala.
635, 12 South. 405.
LAW OF T0KT8— 30
r'
4W 1XJURI£3 IX FJ^HILY EELATlOXi. [Ch- 7
to recoverv.^*' And his own previous infidelitr dnring marria^re
may mitigate dama^f-A.'*^ Bot to entitle him to recover for the
defilement of his wife, the interconrae need not hare been the re-
SDlt of seduction.***
Aclifm hy Ote H»uiband for Altenatton cf the Wij'es Affedians,
To entitle the husband to recover for injuries to the wife, it is
not necesKary that she should have been seduced or debauched.
An action lies for the alienation,*** or even for the partial aliena-
tion,'*^ of her affections.
Under the action per quod consortiimi amisit, the husband could
recover for the "comfort and assistance" of his wife. In Winsmore
V. Greenbank,^** the loss to the husband for which an action lay
was that he had had a fortune left to her separate use. The action lies
where the wife is retained against the inclination of her husband.
If, however, he has ill-treated her, and another person acts in mere
103 s<honi T. Berry, 63 Hun, 110, 17 N. Y. Supp. 572; Frye v. Derstler, 2
TeateM, 278; Cook y. Wood, 30 Ga. 801; Booas v. Steffens, 62 Han, 019, 16 N.
Y. Siipp. S19; Winter v. Henn, 4 Car. & P. 494; Bunnell t. Greathead, 49
Barb. <N. Y.) 106; Norris v. Norris, 30 Law J. Prob.. Div. & Adm. Ill; Duber-
ley v. Gunning, 4 Term R. 651; 8anbom v. Neilson, 4 N. H. 501; Bonas v.
Stetfens, 16 N. Y. Supp. 819, 62 Hun, 619.
104 Smith V. Hasten, 15 Wend. (N. Y.) 270; Shattuck v. Hammond, 46 Vt.
466; Rea v. Tucker, 51 HI. 110.
105 Weedon v. Tlmbrell, 5 Term R. 300. And see Wales v. Miner, 89 Ind.
118; Wood V. Mathews, 47 Iowa, 409; Hadley y. Heywood, 121 Mass. 236.
loe Rudd y. Rounds, 64 Vt 432, 25 Atl. 438; Tasker y. Stanley, 153 Mass.
148, 26 N. E. 417; Highman v. Vanosdol, 101 Ind. 160; Hutcheson y. Peck, 5
Johns. (N. Y.) 196; Heermance y. James, 47 Barb. (N. Y.) 120. The complaint
in an action by a man for the enticing away of his wife need not particularly
state the arts used to accomplish the purpose. French y. Deane, 19 Colo.
504, 36 I'ac. 609. The action may be against several persons. Huot v. Wise,
27 Minn. (58, 6 N. W. 425.
107 Fratini y. Caslani, 66 Vt 273, 29 Atl, 252.
108 WilloH. 577; Bigelow, Lead. Cas. 328; Wood y. Mathews, 47 Iowa, 410;
Turner v. Estes, 3 Mass. 316; Barbee y. Armistead, 10 Ired. (N. C.) 530;
Tasker y. Stanley, 153 Mass. 148, 26 N. B. 417; White y. Ross, 47 Mich. 172,
10 N. W. 188; Weedon y. Timbrall, 5 Term R, 357; Modisett v. McPike, 74
Mo. (K\6; Hutchinson y. Peck, 5 Johns. (N. Y.) 196; Campbell v. Carter, 3
Daly (N. Y.) 165; Barbee v. Armistead, 10 Ired. (N. C.) 530; Perry y. Love-
Joy, 40 Mich. 529, 14 N. W. 485; Bennett v. Smith, 21 Barb. (N. Y.) 439; Rabe
v. Hanna, 5 Ohio, 5.'J0; Smith v. Lyke, 13 Hun, 204.
Ch. 7] HUSBAND AND WIFE. 407
hospitality, there is no responsibility.^*** A parent, while he may
not restrain his daughter, who has left an indifferent husband^
from returning to him, may counsel her for her own good to re-
main away, and offer her a home and a living.^ ^® The parent's
motive will be presumed to be good, unless it be shown to be evil.
The parent will not be liable for sheltering the wife or advising her
to leave her husband.^^^ But a stranger does such things at his
peril. He may justify himself by showing good faith and good
cause, but the burden is on him to prove it^^^ The soundness of
this distinction has been seriously questioned.^ ^* And there is ex-
ceedingly good authority against it***
Action by the Husband for Miscellaneous Wrongs.
The common law went to great length to protect the husband
against the wrongful interference with his domestic rights by third
persons. Anyone who knowingly assists the wife in the violation
of her duty as such is guilty of a wrong for which an action will
lie, when injury is thereby inflicted on the husband.*** Therefore,
an action may be maintained against a druggist for selling a wife
a dangerous quantity of laudanum.**'
Action by Wife for Corresponding Wrong.
The common-law right of a married woman to sue a third person
for the seduction or enticing away of her husband has been denied,
100 Berthon v. Cartwright, 2 Esp. 480; Phllp v. Squire, 1 Peake, 114; Tftsker
V. Stanley, 153 Mass. 148, 26 N. E. 417.
110 White V. Ross, 47 Mich. 172, 10 N. W. 188; Glass v. Bennett, 89 Tenn.
478. 14 S. W. 1085.
111 HuUng y. Huling, 32 111. App. 519-^522 (collecting cases)
112 Higham v. Vanosdol, 101 Ind. 160-166; Modisett v. McPike, 74 Mo. 686.
11* It is'dlfficult, however, said Mr. Blgelow (Lead. Cas. Torts, 336), to see
any distinction in favor of a parent over any other person, in this particu-
lar. Bennett v. Smith, 21 Barb. (N. Y.) 439.
ii4Tasker v. Stanley (1891) 153 Mass. 148, 26 N. E. 417; Winsmore v.
Greenbank, Willes, 577; Philp v. Squire, 1 Peake, 82; Turner v. Esles,
3 Mass. 316; Stowe v. Heywood, 7 Allen (Mass.) 118; Holtz v. Dick, 42 Ohio
St. 23; Hutchinson v. Peck, 5 Johns. (N. Y.) 196; Scliuncman v. Palmer,
4 Barb. (N. Y.) 225.
115 Barnes v. AUen, 30 Barb. (N. Y.) 663, per Latt, J.
11 « Hoard v. Peck, 56 Barb. (N. Y.) 202.
4u.S IXJUKIES IX FAMILY RELATIONS. [Cil. 7
because at common law the property of the husband was the prop-
erty of the wife, and such damages, if recovered, would become
his property. Therefore, it has been urged, to allow her to recover
would involve the absurdity that the husband might also sue for
such a cause." ^ On the other hand, it has t)een insisted that, in
natural Justice, no reason exists why the right of the wife to main-
tain an action against the seducer of her husband should not be
coextensive with his right of action against her seducer. The
weight of authorities and the tendency of the legislation strongly
inclines to the latter opinion.*** An action by the wife against
her mother-in-law for the enticement of a husband has been enter-
tained on principles similar to those giving the corresponding right
of action to the son.*** The measure of her damages in such
cases is the actual injury caused by the loss of her husband's affec-
tion and support, and exemplary damages when the injury is will-
ful and wanton, according to the defendant's pecuniary circum-
stances.**** The wife, however, cannot maintain such an action
when she is separated from her husband by agreement, although
• 117 Duffles V. Duffles (1890) 76 Wis, 374. 45 N. W. 522; Rice v. Rice (Mich.)
62 N. W. 833; Glow v. Chapman (Mo. Sup.) 28 S. W. 328; Doe v. Roe, 82 Me.
503, 20 AtL 83. Et vide Lynch v. Knl;?ht, 9 H. L. Gas. 577, Mulford v.
Glewell, 21 Ohio St 191; Logan v. Logan, 77 Ind. 558; Van Arnam v. Ayers,
67 Barb. (N. Y.) 544; Reeder v. Purdy, 41 111. 279-282; Michigan Cent. R. Co.
y. Coleman, 28 Mich. 440; Kroessln v. Keller (Minn.; 1895) 62 N. W. 438.
iiswestlake v. Westlake, 34 Ohio St. 621; Warren v. V^arren, 89 Mich.
123, 50 N. W. 842; Foot v. Card, 58 Conn. 1, 18 AU. 1027; Seaver v. Adams
(N. H.) 19 AtL 776; Bassett y. Bassett, 20 111. App. 543; Reed v. Reed, 6 Ind.
App. 317. 33 N. E. 638; Holmes v. Holmes, 133 Ind. 386. 32 N. E. 932;
Uaynes v. Nowlln, 129 Ind. 581, 29 N. E. 389; Wolf v. Wolf, 130 Ind. 599, 30 N.
K. 308; Meliroff v. Mehroff, 20 Fed. 13; Bennett y. Bennett, 116 N. Y. 584.
23 N. E. 17 (oyen*uling Van Aniam v. Ayers, 67 Barb. 544); Simmons v. Sim-
mons (Sup.) 4 N. Y. Supp. 221; Warner y. Miller, 17 Abb. N. G. 221; Churchill
y. Lewis, Id. 226; Jaynes v. Jaynes, 39 Hun (N. Y.) 40; Haynes v. Nowlin,
129 Ind. 581, 29 N. E. 389; Van Oliuda v. Hall (Sup.) 34 N. Y. Supp. 777;
Kailsback v. Railsback (Ind. App.) 40 N. E. 276; Rice v. Rice (Mich.) 62 N. W.
833 (by yvife against father-in-law). And see Lynch v. Knight, 9 H. L. Gas.
577.
ii» Hullng V. Hullng, 32 111. App. 519.
120 Waldi'on v. Waldron, 45 Fed. 315.
Ch. 7] HUSBAND AND WIFE. 469
the enticement of her husband occurred while she was living with
him."^
SAMB--INJUBIES TO WIFE— DOUBLE CAUSE OP ACTION.
164. Where the isjuries to the wife complained of do not
arise from a state of facts in -which the wife's own
wrong is an essential part, there are two distinct
causes of action:
(a) The injury to the wife;
(b) The injury to the husband.
164a. At common law the husband was a necessary party
to proceedings on both causes of action. This has
been generally, but not universally, changed by
statute, so as to allow the husband and the wife to
sue separately and in their own names for their re-
spective damages.
The husband may complain of the seduction of his wife. The
corresponding right is not naturally extended to a married woman.
In most of the cases already considered, the wrong involved is ex-
clusively the husband's. The wife's own conduct in itself is a wrong
to him. But, whenever she is innocent, the legal aspect of the facts
change entirely. The woman who consents to adultery is in a very
different position in law from that occupied by the unfortunate vic-
tim of a rape. And the right of a husband to sue for the injuries
of his wife, caused by either violence or negligence, is not inconsist-
ent with her right to recover on the same state of facts. His dam-
age is consequential, and consists of loss of service, society, medical
expenses, and other incidental losses.^^* Her damage is direct, and
i«i Buckel V. Suss (Super. N. Y.) 18 N. Y. Supp. 71»j; Id., 2 Misc. Rep. 571,
21 N. Y. Supp. 907. But see Postlewaitq v. Postlewaite, 1 Ind. App. 473, 28
N. E. 99. Article on "The Husband Seducer," 26 Am. Law Rev. 36. As to
action by wife against her father and mother-in-law, see Young v. Young, 8
Wash. 81, 35 Pac. 592.
122 Skoglund V. Railway Co., 45 Minn. 330, 47 N. W. 1071; Mann v. City of
Rich Hill, 28 Mo. App. 497; Blair v. Railroad Co., 89 Mo. 334, 1 S. W. 367;
Reading v. Pennsylvania R. Co., 52 N. J. Law, 264, 19 Atl. 321; Brooks v.
Schevem, 54 N. Y. 343; Mewhlrter v. Hatten, 42 Iowa, 288; Tuttle v. Rail-
470 INJURIES IN FAMILY RELATIONS. [Ch. 7
arises from the injury to her person, her individual suffering, and
similar harm.
Parties Plaintiff.
This was distinctly recognized by the common law.*** But, un-
der its peculiar doctrine as to tl^is relationship, the husband and wife
were required to be joined as parties plaintiff in an action for per-
sonal injuries to her.^** This requirement has generally been
changed by statute so that ordinarily, but not always,*** the wife
may recover for her peculiar injury, and the husband for his.*** In
way Co., 42 Iowa, 518; St. Louis S. W. Ry. Co. v. Henson, 7 C. C. A. 349, 58
Fed. 531.
123 Hyatt V. Adams, 16 Mich. 180; Michigan Central R. Co. v. Coleman, 28
Mich. 439 (reyiewlng cases, page 444); Burt v. McBaln, 29 Mich. 262; Leonard
V. Pope, 27 Mich. 145.
124 Mathews v. Central Pac. R. Co., 63 Cal. 450; Mosler t. Beale, 43 Fed.
3.'>8. Husband and wife as plaiDtifTs in malpractice, see Lynch v. Davis, 12
How. Prac. (N. Y.) 323; Long y. Morrison, 14 Ind. 595; Twombly v. Leach.
11 Cush. (Mass.) 397. 3 How. Ann. St. 8 144(5c, provides tliat on "any per-
son or persons sustaining bodily injury" by a defective street, the corx)oration
shall be liable "to the person or persons so injured." Held not to authorize
a husband to sue a city for loss of services of his wife from injuries caused
by a defective sidewalk. Neither (1< t»« li How. Ann. St. § 144Gd, which pro-
vides that if any horse or other animal, or any cart, carriage, or vehicle, "or
other property" is injured by reason of such neglect, the corporation shali be
liable to and pay the owner thereof Just damages, w^hich may be recovered in
an action, etc., authorize such suit Roberts v. City of Detroit (Mich.) 60 N.
W. 450.
las A suit for personal InJuriefi and wrongs done to a wife must be brought
by her husband in his own name. Fournet v. Steamship Co., 43 La. Ann.
1202, 11 South. 541. Bt vide San Antonio & A. P. Ry. Co. v. Corley (Tex.
Civ. App.) 2G S. \V. 903; Snaahall v. Metropolitan Ry, Co.. 19 D. C. 99;
Metropolitan St R. 0>. v. Johnson, 90 Ga. 500, 16 S. E. 49; Barker v. RaU-
way Co., 92 Ala. 314, 8 South. 460; Gallagher v. Bowie, 66 Tex. 205, 17 S. W.
407; Mewhlrter v. Hatten, 42 Iowa, 288; Tuttle v. Chicago, R. I. & P. R. Co.,
Id. 518; Stone v. Evans, 32 Minn. 243, 20 N. W. 149. The husband and Avlfe
have separate injuries on which to base action for criminal assault on the
wife. Johnston v. Dlsbrow, 47 Mich. 59, 10 N. W. 79. As to violation of
right of husband and wife to sleep together, vide Pullman Palace-Car Co. y.
Bales (Tex. Sup.) 14 S. W. 855; Id., 80 Tex. 211, 15 S. W. 785.
126 Kelley v. May berry Tp., 154 Pa. St. 440, 26 AU. 595; Henry v. Klopfer.
147 Pa. St 178, 23 Atl. 337, 338 (this case also discusses at length the measure
of the husband's damage).
Oh. 7] HUSBAND AND WIFE. 471
such cabes, the joinder of the husband with the wife as a coplaintiflf
would seem to be a mere irregularity, which may be corrected by
striking out his name."^ She may certainly recover for injuries
to a business carried on by her as a feme sole/^' when such injuries
are specially pleaded.^** Thus, he may sue alone for libel,*'® slan-
der,*^* or other damage done her person, including pain and suffer-
ing,*'* caused by the negligence of another.*" Inasmuch as the
services of a married woman belong to her husband, any injury to
her, injuriously affecting them, would naturally be a part of the
damages which he can recover.*** But a physical injury impairing
her capacity to. labor has been classified with pain and suffering,
127 Colvm V. Langdon, 22 Minn. 565.
138 Wolf V. Bauerels, 72 Md. 481, 19 Atl. 1045.
i2»Uran8ky v. Dry-Dock, B. B. & B. R. Co., 118 N. Y. 804, 28 N. B.
451; Woolsey v. Trustees, 61 Hun, 186, 15 N. Y. Supp. 647. In an action
for trespass on the land of a wife, the husband may be joined as plaintiff,
though under Rev. St lud. 1881, § 254, he is not a necessary party. Atkinson
V. Mott, 102 Ind. 431, 26 N. E. 217. The cause of action for personal inju-
ries to the wife accrues to the community estate represented by the husband,
and in the absence of a showing of exceptional facts entitling the wife to
relief he alone can sue. The refusal of a husband to bring an action for in-
juries to the wife does not entitle the wife to sue alone. Rice v. Mexican
Nat. R. Co. (Tex. Civ. App.) 27 S. W. 921. A review of the married women's
property act of 1893, 97 Law T. 407.
i»o raucost V. Bumell, 32 Iowa, 394; Pavlovski v. Thornton, 89 Ga. 829, 15
S. E. 822.
181 Logan V. I^ogan, 77 Ind. 588.
182 Haden v. Clarke, 56 Hun, 645, 10 N. Y. Supp. 291; Atlanta St. R. Co.
V. Jacobs, 88 Ga. 617, 15 S. E. 825.
1S8 Chicago, B. & Q. R. Co. v. Dunn, 52 111. 260; Hennies v. Yogel, 66 lU.
401; Chicago, B. & Q. R. Co. v. Dickson, 67 111. 122; City of Rock Island v.
Deis, 38 111. App. 409; Berger v. Jacobs, 21 Mich. 215; Du Bois Borough v.
Baker, 120 Pa. St. 266, 13 Atl. 783. Compare Heim v. McCaughan, 32 Miss.
17; Cross v. Guthery, 2 Root (Conn.) 90; Hyatt \. Adams, 16 Mich. 180.
And see Atlanta St Ry. Co. v. Jacobs, 88 Ga. 647. In New York, the wife
could maintain such suit between 1880 and 1890. Weld v. New York, L. E.
& W. R. Co., 68 Hun, 249, 22 N. Y. Supp. 974; Bennett v. Bennett, 116 N. Y.
684. 23 N. E. 17; Campbell v. Perry (Sup.) 9 N. Y. Supp. 330; Haden v.
Claike (Sup.) 10 N. Y. Supp. 291; City of Portland v. Taylor, 125 Ind. 522, 25
N. E. 459; Mosier y. Beale, 43 Fed. 358.
18* Becker v. Janinski (Com. PL) 15 N. Y. Supp. 675; 27 Abb. N. O. 45, note
on page 46; Carr v. Easton, 7 Pa. Co. Ct R. 403; Bloom v. Manhattan El.
472 INJURIES IN FAMILY RELATIONS. [( h. 7
and she has been held to have such an interest in her working ca-
pacity that she can recover for its impairment the amount depend-
ing on the nature of the injury and the length of time during which
the pain and deprivation will continue.^'* While, ordinarily, the
husband, being liable for them, should recover for medical and
similar expenses involved in the injury to the wife,"* she has still
been allowed to include them in the measure of her damages.**^
Where the wife cannot recover for personal injuries, because guilty
of contributory negligence^ her husband cannot recover for the loss
of her services consequent on such injuries.^^* A husband and wife
cannot recover for a personal injury to the wife, if the husband was
guilty of contributory negligence."'
Ry. Co. (Sup.) 17 N, Y. Supp. 812; National Bank v. Sprague, 20 N. J. Eq. 13;
Hall V. Incorporated Town of Manson (Iowa) 58 N. W. 881; Yopst v. Yopst,
51 Ind. 61; Reynolds v. Robinson, 64 N. Y. 589; Shaeffer v. Sheppard, 54
Ala. 244; Bolman v. Overall, 80 Ala. 451, 2 South. 624; Uransky v. Dry-Dock,
B. B. & B. R. Co., 118 N. Y. 304. 23 N. E. 461; Porter v. Dunn, 131 N. Y.
314, 30 N. E. 122; Kavanaugh v. JanesvlUe, 24 Wis. 618; Barnes v. AUen,
1 Abb. Dec. Ill; PhUlippl v. Wolff, 14 Abb. Prac. (N. S.) 196; Sloan v. New
York Cent. Ry. Co., 1 Hun, 540; Mewhlrter v. Hatten, 42 Iowa, 288; Meeae
V. City of Fond du Lac, 48 Wis. 323, 4 N. W. 406; City of Wyandotte v.
Agran, 37 Kan. 528, 15 Pac. 520; Mann v. City of Rich Hill, 28 Mo. App. 497;
Blair v. Chicago & A. R. Co., 89 Mo. 334, 1 S. W. 367; Skoglund v. Minne-
apolis St Ry. Co., 45 Minn. 330, 47 N. W. 1071. In Peunsylvauia, a husband
may file a stipulation releasing to his wife his right for damages. Kelley
V. Mayberry Tp., 154 Pa. St. 440, 26 Atl. 595. As to the right of wife to re
cover when she is engaged in the service of anoth^ and not in household
duties, see Brooks v. Schwerln, 54 N. Y. 343; Tuttle v. Chicago, R. I. & P
Ry. Co., 42 Iowa, 518; Neumeister v. Dubuque, 47 Iowa, 405; Carr v. Easton,
7 Pa, Co. Ct. R. 403.
185 Atlanta St. R. Co. v. Jacobs, 88 Ga. 647, 15 S. E. 825; Metropolitan St
Ry. Co. V. Johnson, 90 Ga. 500, 16 S. E. 49. A husband cannot, under 3
How. St. §§ 1446c, 1446h, recover for loss of services of his wife injured by
a defective sidewalk. Roberts v. City of Detroit (Mich.) 60 N. W. 450.
i«e Belyea v. Minneapolis, St. P. & S. S. M. Ry. Co. (Minn.) 63 N. W. 627.
187 City of Columbus v. Strassner (Ind. Sup.) 34 N. B. 5. See Henry v.
Klopfcr, 147 Pa. St. 178, 23 Atl. 337. 338; Bumham v. Webster, 54 N. Y.
Super. Ct. 30; Lewis v. Atlanta, 77 Ga. 756; Wolf v. Bauereis, 72 Md. 481,
19 Atl. 1045.
138 winner v. Oakland Tp., 158 Pa. St. 405, 27 Atl. 1110, 1111. But see
Honey v. Chicago, B. & Q. R. Co., 59 Fed. 423.
189 Pennsylvania R. Co. v. Goodenough (N. J. Err. & App.) 28 Atl. 3 (Dixon,
J., dissenting).
CL. 8] DEFAMATION DEFINED. 473
OHAPTEB Vm.
WRONGS AFFECTING REPUTATION.
165. Defanmtion Defined.
166. Publication— Libel, Slander, and Malicious Prosecution Distin-
guished.
167. What Constitutes.
168. Republication.
169. Application to Plaintiff.
170. Damages as the Gist of Libel and Slander.
171. Presumption in Actions for Slander.
172. Presumption in Action for Libel.
173. Construction of Language Used.
174. Signification of Words.
175. Malice.
176. Defenses.
177. Common-Law Defenses.
178-180. Justification.
181. Mitigation.
182. Slander of Title or Property.
DEFAMATION DEFINED.
166. Defamation is a false publication calculated to brin(?
into disrepute. As to its objects, it may refer to —
(a) Persons, when it is commonly called libel and slan-
der; or
(b) Things, wfien it is commonly called slander of prop-
erty or title.
Defamation is the generic name for injuries to reputation.
While it is commonly called slander of title when it concerns prop-
erty, still, where the words of a publication apply to property, in
Buch a way as to injure the reputation of the owner by exposing him
to hatred, contempt, or ridicule, it is a libel on such person.^
1 State y. Mason (Or.) 38 Pac. 130; or to write that a bookmaker sells im-
moral books. Tabart v. Tipper, 1 Gamp. 350; or that a merchant's wine Is poi-
soned or tea coppered. Colteman, J., in Ingram v. Tjawson. 6 Bing. N. C. 212-
216. But see WUlard y. MeUor, 19 Colo. 534, 30 Pac. 148 (''rubbish*' not 11-
belons).
474 WRONGS AFFECTING RKPUTATION. [Ch. 8
The right of reputation is a confused one.* It is sometimes re-
garded as an absolute or simple right, from the violation of which
damage will be presumed. In many, perhaps in most, cases, the
right is a right not to be harmed, from the violation of which, there
is no presumption of damage, and no cause of action arises unless
damages conforming to the legal standard can be proved.
It does not seem to be definitely settled whether the right of
reputation must be respected at peril, — as is true, for example, af
the right of personal security, or of freedom of locomotion.' More-
2 **Now I think no one can examine the authorities upon the law of slander
without seeing that there are a number of distinctions to be found which can-
not be supported on any satisfactory principle." Lord HerscheU in Alexander
,Y. Jenkins [1892] 1 Q. B. 797-800.
8 The uncertainty of the law on this point is well iUustrated in Massa-
chusetts cases. It was accepted without dissent that "a person publishes
libelous matter at his peril." Holmes J., in Burt v. Advertiser Newspaper
Co., 154 Mass. 238-245. 28 N. B. l,--citlng Watson ▼. Moore, 2 Gush. 133-140;
Parkhurst y. Ketchum. 6 Allen, 406; Olark v. Brown, 116 Mass. 504. But in
Hanson y. Globe Newspaper Go., 150 Mass. 293, 34 N. E. 462, it was held that
if defendant use plaintiff's name by mistake for that of another person In a
defamat(»7 way, there was no liability. **The reason of this is obvious. De-
famatory language is harmful only as it purports to be the expression of the
thought of him who is using it. In determining the effect of a slander, the
questions involved are, what is the thought intended to be expressed? and
how much credit should be given to him who expresses it?" Per Knowlton, J.,
pages 295, 296, 159 Mass., and page 462, 34 N. E. And see LaWrence v. New-
berry, 64 Law T. (N. S.) 797. On the other hand, Holmes, J., in dissenting opin-
ion, sets forth what would seem to be the better reasoning: "On genera,! prin-
ciples of tort, the private intent of the defendant would not exonerate It It
knew it was publishing statements purporting to be serious, which would be
hurtful to a man If applied to him. It knew it was using as the subject of
those statements words which puiported to designate a particular man, and
would be understood by its readers to designate one. If the defendant had
supposed that there was no such person, and had intended simply to write an
amusing fiction, that would not be a defense, at least unless its belief was
justifiable. Without special reason, it would have no right to assume that
there was no one within the sphere of its influence to whom the description
answered. The case would be very like firing a grun into a street, and, when
a man falls, setting up that no one was known to be there" (Holmes, J., in Han-
son v. Globe Newspaper Go., 159 Mass. 293-301, 34 N. E. 462). Hull's Gase. J.
Kel. 60; Rex v. Burton, 1 Strange, 481; Rigmaidon's Gase, 1 Lewin, Grown
Gas. 180; Reg. v. Desmond, 11 Gox, 140, Steph. Dig. Gr. Law, 163. So, where
€h. 8] DEFAMATION DEFINED. 475
over, malice is an essential ingredient of the wrong. Accordingly,
while the right to reputation is a natural, as distinguished from an
the description which points out the plaintiff is supposed by the defendant to
point out another man, whom in fact it does not describe, the defendant is
equally liable as when the desci-iption is supposed to point out nobody. On
the general principle of tort the publication is so manifestly detrimental that
the defendant publishes it at the perU of being able to Justify it in the sense
in which the pubUc will understand it. This would seem to be in accordance
with the general trend of authorities. Mistake is ordinarily no excuse. Shep-
heard v. Whitaker, L. R. 10 C. P. 502; Fox v. Broderick, 14 It. O. L. 453; Mayne
▼. Fletcher, 4 Man. & B. Mag. 56, note; Rex v. Paine, 5 Mod. 163; Alllger
V. Brooklyn Daily Eagle, 6 N. Y. Supp. 110; Griebel y. Rochester Print
Co.. 60 Hun. 319, 14 N. Y. Supp. 848; McLean v. New York Press Co.
(Sup.) 19 N. Y. Supp. 262. And see Davis y. Marxhausen (Mich.) 01 N. W.
504; Loibl y. Breidenbach, 78 Wis. 49, 47 N. W. 15; Brett v. Watson, 20
Wkly. Rep. 723. It is not necessary that plaintiff should intend to injui-e
defendant if that was the manifest tendency of his words. Curtis y. Mua-
sey, 6 Gray, 261-273; Haire y. Wilson, 9 Bam. & C. 643; King y. Clerk.
1 Barnard, 304; Odger, Sland. & L. (2d Ed.) 638. Indeed, one publishing a
libel without knowing it may be ciyiUy and criminally responsible. Dun y.
Hall, 1 Ind. 344 (where, contrary to orders, setrant published a libel, and the
master was held responsible). And see Rex y. Gutch, Moody & M. 433; Rex
y. Walter, 2 Esp. 21; Com. y. Morgan, 107 Mass. 199. An inadyertent publi-
cation is a legal wrong. Rex y. Abingdon, 1 Esp. 228. So, also, punitiye
damages may be giyen for reprehensible negligence in publishing an article
without yerification of its truth. Morning Journal Ass'n y. Rutherford, 2 C. C.
A. 354, 51 Fed. 513; Smith y. Sun Printing & Pub. Ass'n, 5 C. C. A. 91, 55 Fed.
240. So for malice or gross negligence. Cooper y. Sun Printing & Pub. Ass*n,
57 Fed. 560; Day is y. Marxhausen (Mich.) 61 N. W. 504 (in which a libel was
published of plaintiff because of a mistake in names. Montgomery, J., said:
"While the case is manifestly one in which large damages should not be
awarded, yet it is clear that the record fails to show conclusiyely that the
publication occurred through mistake, and while in the exercise of reasonable
care"). A note on the liabUity of a newspaper proprietor for libel published
without his knowledge or consent. State y. Mason (Or.) 26 Lawy. Rep. Ann.
779, 38 Pac. 130. Query: Does the opinion of a majority of the court in Han-
son y. Globe Newspaper Co., supra, coiTCspond to the modification of the or-
dinary conception of trespass in the law of trespass to the person, apparent
in Stanley y. Powell [1891] I Q. B. 86, and Holmes y. Mather, L. R. 10 Exch.
261, or the modification of the formula as to the duty of insuring safety which
arose out of Rylands y. Fletcher, L. R. 1 Exch. 277, L. R. 3 H. L. 330, apparent
in Cork v. Blossom, 162 Mass. 330, 38 N. E. 495; 8 Han^ Law Rev. 225
(cf. Gorham y. Gross, 125 Mass. 232); and Berger y. Gaslight Co. (Minn.) 62
N. W. 336 (cf. Cahill y. Eastman, 18 Minn. 324 [Gil. 292]). It would cer-
476 WRONGS AFFECTING REPUTATION. [Ch. 8
acquired, one, it can scarcely be accurately called an absolute right.^
The right to recover for personal defamation depends upon suffi-
cient and consistent allegation and proof that, first, words or other
signs (a) capable of a disparaging meaning (b) were used in that
sense (c) with reference to plaintiff; second, that such words or signs
were (a) published by defendant so that (b) one third person, at
least, understood the ill meaning; and, third, that damage resulted
to plaintiff either (a) from presumption of law (which is more liberal
to the plaintiff m libel than in slander) or (b) from proof of special
injury, which has been specially averred. Historical differences,
however, make it inconvenient to consider these subjects in this or-
der.
PUBLICATION— LIBEL, SLANDEB, AND MALICIOUS
FBOSECUTION DISTINQUISHED.
166. Publication of defamatory matter consists in com-
municating it to a third person or persons.'^ Ac-
cording to the manner of publication, it is either —
(a) Slander, which is defamation of a person by mere
talk;
talnly seem that in aU these cases the effect of the law IncUnes, not towards
the theory of tort, that a man may act at his peril, but that responBlbiUty is
based upon some mental element involving the doctrine of calpabillty. The
absence of a conception of the tendencies in the general law of torts Is as
apparent in the opinion of Knowlton, J., as perhaps the wedded fondness for
his theory is apparent in the opinion of Justice Holmes.
* "The right of every man to have his good name maintained unimpaired
is a jus in rem, a right absolute and good against the world." Odger, Sland.
& L. p. 1. Sterrett, J., in Collins v. Dispatch Pub. Co., 152 Pa. St 187, 25 Atl.
546, 547. And see Holt, Libel, 15; 1 Bl. Comm. bk. 1, c. 1; 2 Kent, Comm. (13th
Ed.) lG-26; 1 Chit PI. 399-407; Delamater v. Russell, 4 How. Prac. 233. But
see Townsh. Sland. &!<.§§ 47, 48, 57, to the effect that, *'if the supposed right
to reputation be an absolute right, then any invasion of it must be a wrong;
but reputation is often invaded without such invasion amounting to a wrong.
Hence, the inutility for any practical purpose of the definition of a wrong as
an invasion of a right * * • There was no reason for describing that as
an absolute right which is something else."
6 Pol. Torts, 215; or giving the defamatory charge to the world, Oooley,
Torts, p. 193.
Ch. 8] PUBLICATION. 477
(b) Libel, which is personal defkmation by any other
means, except through courts of justice; or,
(c) Malicious prosecution, which is defamation through
courts of justice.
Pithlication — Libd and Slander,
There are many attempted deflnitionB of libel and slander. A
favorite distinction is that in slander intelligence is communicated
to the sense of hearing; in libel, to the sense of sight.^ This is
essentially true. Slander is, generally speaking, published by word
of mouth; libel, by writing, printing, pictures, emblems, or effigies.^
However, gestures and signs — ^for example, movements of lips of
dumb people — are equivalent to spoken words, and publish slan-
der, not libel. They are, however, addressed to the sense of sight,
and not to the sense of hearing." Perhaps a more vital distinction
is that in slander the defamatory matter has a fugitive form; in
libel it is embodied in a permanent form. In slander, production
and publication are identical; in libel, its production is one thing
and its publication another.'^
A telegrapher talks over a wire, or by use of a knife between the
prongs of a fork, so that third persons understand him to publish
• Gooley, Torts, p. 103; Townsh. Sland. & L. c. 1.
7 A gallows at the door of an obnoxious person is a Ubel on bim. 5 Coke,
125b. And see Eyre v. Garlick, 42 J. P. 68. Query: Is not Jeflferies v. Dun-
combe, 11 East, 226 (pimp and bawdy house), a case of libel, not of nuisance.
See Clerk & L. Torts, 424, note b. A display of a placard, concerning the mother
of a boy sent to an industrial school, "We know the tree by its fruit," is Ubel.
Kay V. Jansen, 87 Wis. 118, 58 N. W. 245. A statue, 1 Hawk. P. O. (8th Ed.)
542. A caricature, Austin t. Culpepper, 2 Show. 313. Chalk marks on wall,
Tarpley v. Blaby, 7 Car. & P. 395. Scandalizing plaintiff by carrying fellow
about with horns blowing at plaintiff's door, etc., Sir William Bolton v. Deane,
Skin. 123 (cited In Austin v. Culpepper, 2 Show. 313). And see Spall y. Massey,
2 Starkie, 559; Cropp v. Tilney, 3 Salk. 223. Malicious protest of a draft, May
V. Jones, 88 Ga. 308, 14 S. B. 552.
8 Pol. Torts, 204, 205. Lord Abinger, in Gutsole v. Mathers, 1 Mees. & W.
494-501.
• Clerk & L. Torts, § 423; Fraser, Torts, 75. "In every slander there are two
acts: (1) The composing; (2) the publishing. In every libel there are three
acts: (1) The composing; (2) the writing; (3) the pubUshing.'* Townsh.
Sland. & L. p. 58, S 70.
478 WKONGS AFFKrTlNG REPUTATION. [Ch. 8
defamatory words. This is "talk/' as much as spoken words. The
mere media by which ideas are communicated, unless because of
X)eculiar attribute (as permanency), should not alter the legal aspect
of the conduct involved. And if a person talk to a phonograph so
that a third person would overhear him in the act, this would be
slander; but if the publication consisted in the subsequent repro-
duction of the language to a third person from tbe permanent coil,
it would be hard to understand why this would not be libel. But
intelligence would be communicated to the sense of hearing, not that
of sight.
Again, slander is a wrong which cannot be committed by joint
tort feasors. Libel can. "An action for slander will not lie jointly
against two. Such an action cannot be maintained, because the
woi'ds of one are not the words of another. A separate action for
words spoken must be prosecuted against each. Even if a husband
and wife utter similar words simultaneously, they were regarded as
two separate publications, and an action had to be brought against
the husband alone for what he said, and against both husband and
wife for her words." ^^ There is another distinction between libel
and slander, which follows rather as a consequence, after it has been
determined whether the wrong in a given case is to be regarded as
libel or slander, than as means for determining the nature of the
wrong in issue. Thus, libel is a criminal wrong, while slander at
common law was not, and in most places is not now, punishable as
a public wrong."
Mr. Townshend insists that there is a third means of publishing
defamation, viz. by courts of justice.^' To this proposition it would
be hard to take exception. But it can scarcely be said to be true
that injury to the reputation is the only one produced by malicious
prosecution. Damages, in this form of wrong, may be "to plaintiflTs
10 Van Syckd, J., In Van Horn v. Van Horn, 50 N. J. Law, 318, 28 Ati. 6G1>-
671, citing Townsh. Sland. & L. §§ 113-118; Thomas v. Runisey, 6 Johns. 26;
Odger, Sland. & L. 371, and cases cited.
11 As to "scandalum magnatum," see Townsh. Sland. & L. § 138. As to dis-
tinction between civil and criminal, see Warnock v. Mitchell, 43 Fed. 428.
12 Townsh. Sland. & L. VI. "An action for libel is upon all fours with an
action for malicious prosecution. The latter is but an aggravated form of an
action for libel, as in it the libel is sworn to before a magistrate." Briggs v.
Garrett, 111 Pa. St 404, 2 Atl. 513.
^h- ^] PUBLICATION. 479
property or his reputation, op may arise from his being put in danger
of life, limb, or liberty." Moreover, while in both libel and slander
damages are, perhaps, in a great majority of cases, presumed,^* this
cannot be said in case of malicious prosecution.** And many au-
thorities insist that before an action of malicious prosecution can
be brought there must be interference with the plaintiffs person or
a seizure of his property.**
SAMB-WHAT CONSTITUTES.
167. Publication consists in —
(a) The griving out of defamatory matter by the defend-
ant;
(b) The taking in by a third person or third persons.
The Giving Out,
No amount of malice in thought can make silence or inactivity
actionable as libel and slander. Unless the defamatory matter has
been given out to some third person, there can be neither actual
damages nor a basis on which the law can, with any show of reason,
presume damage. There is no injury to the reputation.^* There
is, however, no magic in the number of persons to whom the intelli-
gence is communicated. A single pei*son,*^ though invisible,** is
sufficient. But the communication must be to a third person.**
Where persons mutually engage in exchange of opprobrious epithets,
neither can maintain an action for slander.** A husband and wife
18 Shearw. Torts, 34.
1* Post, p. 627, "Malicious Prosecution."
IB Post. pp. 627, 628, "Malicious Prosecution"; 1 Starkie, Sland. & L. SCO;
Cooke, Defam. 87.
i« Generally, see Pittard v. Oliver [1891] 1 Q. B. Div. 474; Bacon v. Mich-
igan Cent. R. Co., 55 Mich. 224, 21 N. W. 324; Young v. Clegg, 93 Ind. 371:
Spaits V. Poundstone, 87 Ind. 522; Marble v. Chapin, 132 Mass. 225; Mielenz
V. Qiiasdorf, 68 Iowa, 726, 28 N. W. 41.
17 Adams v. I^wson, 17 Grat. 250.
18 Desmond v. Brown, 33 Iowa, 13; SheffiU v. Van Deusen, 13 Gray, 304:
Giles V. State, 6 Ga. 276.
10 Sheffill V. Van Deusen, 13 Gray, 304; Pavlovski v. Thornton, 89 Ga. 820,
15 S. E. 822; Shepheard v. Whltaker, L. R. 10 C. P. 502.
20 Goldberg v. Dobberton, 46 La. Ann. 1303, 16 South. 192. «*The uttering
of a libel to the party libeled is clearly no publication, for the purposes of a
4S0 WRONGS AFFECTING REPUTATION. [Cll. 8
may be so far one person that the statement by the one to the other
is not publication, unless, for example, they are living apart, '^ or a
third person overhears the remarks.** But communication to a
wifa by a third person of words defamatory to her husband is a
legal publication.** The testimony of ministers, who in their minis-
terial office have drawn from one statements of an ancient transac-
tion which is the ground of suit, is admissible to show publication
of the slander.**
While an allegation that defamatory matter was "published*' is
a sufficient allegation that it was given out,*" a charge that it was
"printed" has been held insufficient,** although printing implies
passing through a compositor's room and should, therefore, perhaps
be held to be prima facie publication.*^ If the libel charged be con%»
tained in a sealed letter, read only by the plaintiff, there is no giv-
ing out to a third person.*® But it is otherwise if the letter refer
in libelous words to the plaintiff, and a third person to whom it is
sent reads it,*" even if such person be the plaintiff's wife •• or clerk,*^
cItU action.** Phillips v. Jansen, 2 Esp. 624; Mielenz v. QuasdOTf, 68 Iowa,
726, 28 N. W. 41; 28 Am. Law Reg. 276, 413; Wennhak v. Morgan, 20 Q. B.
Div. 635.
21 Wennliak v. Morgan, 38 Alb. Law J. 24; Sesler v. Montgomery (GaJ.) 19
Pac. 686 (but see revlsal in 78 Cal. 486, 21 Pac. 185); Trumbull v. Gibbons,
3 City H. Rec. 97. Such cases may also be regarded as involving privilege.
22 state V. Shoemaker, 101 N. C. 690, 8 S. E. 332.
28 Wenman v. Ash, 13 O. B. 836.
24 Vickers v. Stoneman, 73 Mich. 419, 41 N. W. 495.
2 6 Wilcox V. Moon, CA Vt. 450, 24 Atl. 244; Id., 61 Vt. 484, 17 Atl. 742.
2 6 Sproul V. Pillsbury, 72 Me. 20; Prescott v. Tousey, 50 N. Y. Super. Ct
428.
2T Baldwin v. Elphinston, 2 W. Bl. 1037.
28 Wamock v. Mitchell, 43 Fed. 428, and cases collected at page 430; Spaits
v. Poundstone. 87 Ind. 522; Lyle v. Clason, 1 Calnes, 581; Willard v. Mellor,
19 Colo. 534, 36 Pac. 148. And see Delaware Ins. Co. v. Croasdale, 6 Houst.
181; RoUand v. Batchelder, 84 Va. 664, 5 S. E. 695; Barrow v. Lewellln [1615]
Hob. 62.
28 Yoimg V. Clegg, 93 Ind. 371; Gough v. Goldsmith, 44 Wis. 262; Fowles
v. Bowen, 30 N. Y. 20.
80 Wenman v. Ash, 13 C. B. 830, 22 Law J. C. P. 190-192, per Maule, J.;
Schenck v. Sehenck, 20 N. J. Law, 208.
•1 Delacroix v. Thevenot 11817] 2 Starkie, 63.
Ch. 8] PUBIJCATTON. ^81
or it is read aloud to a stranger by the writer.'^ ludeed, a dictated
typewritten letter,'* or a telegram sent,'* or a postal card mailed,'**
or the signing and delivery of a petition^'* may necessarily involve
the publication of libelous contents to third i)ersons« The tech-
nical sense of publication is essentially different from the colloquial.
Distribution of pamphlets,'^ posting in a conspicuous place a notice
calling attention to specimens of defective work and materials of
an architect or contractor, is publication." And, generally, sale
and delivery of a libelous publication '• constitute legal publication.
Every sale of a newspaper is a fresh publication,*® but a news
vendor is not necessarily liable as a publisher of defamatory matter
contained in what he sells.* ^ It is no publication to show a copy
of a caricature to a person who asks to see it.**
If the plaintiff do the act which constitutes publication, he cannot re-
cover for the defamatory matter he has communicated. Therefore, if
one sends another a sealed letter containing defamatory matter, and
which the latter reads aloud, he cannot recover, because the publica-
tion is his own act.** Again, the act of publishing is not the defend-
«a Snyder v. Andrews, 6 Barb. 43. Cf. McCoombs v. Tuttle, 5 Blackf. 428-
482. And see MiUer v. Butler, 6 Gush. 71.
»3 Pullman v. HUl [1801] 1 Q. B. Div. 524. Giving a letter containing mat-
ter defamatory of another to a clerk to copy, which he docs, is a publication.
State V. Mclntlre, 115 N. C. 700, 20 S. E. 721.
84 Williamson v. Freer, L. R. 9 C. P. 393.
SB Robinson v. Jones [1879] L. R. 4 Ir. 391. So It is libel to send through
the mail an envelope having indorsed thereon, in large letters, "Bad-Debt Col-
lecting Agency." State v. Armstrong, 106 Mo. 395, 16 S. W. 604.
8« Cotulla V. Kerr, 74 Tex. 89, 11 S. W. 1058.
87 Woods V. Wiman, 122 N. Y. 445, 25 N. E. 919. And see Wamock v.
MltcheU, 43 Fed. 428:
88 Dennis v. Johnson, 42 Minn. 301, 44 N. W. 68. And see Kay v. Jansen,
87 Wis. 118, 58 N. W. 245.
89 Duke of Brunswick v. Harmer, 14 Q. B. 185, 10 Law J. Q. B. 20; Thome
V. Moser, 1 Denlo, 488; Staub v. Benthuysen, 36 La. Ann. 467; Belo & Co. v.
Wren, 63 Tex. 686-723; Com. v. Blanding, 3 Pick. 304.
*o See post, notes 44, 45.
^1 See post, notes 44, 45.
*2 Smith V. Wood, 3 Camp. 323. And see Delacroix v. Thevenot, 2 Starkic,
63 (putting a libel in desk).
4 8 Wilcox v. Moon, 64 Vt. 450, 24 Atl. 244,
LAW OF TORTS— 31
482 WRONGS AFFECTING REPUTATION. [Ch. 8
ant'B, if he doeis not know of it. "A newspaper is not like a fire.
A man may carry it about withiout being bound to suppose that it
is likely to do any injury." ** But it would seem that a man so far
acts at his peril, with respect to defamatory matter which he has
originatcHl, that if, without intention, as by inadvertence on his
part, it reaches and is known to third persons, he should be. held
to have published it.**
The Taking in by Third Persona.
Tlie essence of publication is not the employment of means to give
out the defamatory matter, but the actual communication of intel-
ligence to third persons. This is not accomplished until such mat-
ter is understood.** Therefore, when the language is foreign, it
must be shown to have been comprehended.*^ If not understood^
44 Emmens v. Pottle, IG Q. B. Div. 354, per Bowen, L. J., at puge 358; Id.,
55 iJiw J. Q. B. 51.
46 8 Harv. Law Rev. 206; Fraser, Torts, 85. But see Tompson v. Dash-
wood, 11 Q. B. Div. 43, 52 Law J. Q. B. 425. Cf. Pullman v. Hill, supra (with
which it is inconsistent).
4 6 SuUivan v. Sullivan, 48 111. App. 435. See, also, French v. Detroit Free
Press Co., 95 Mich. 108, 54 N. W. 711; McAllister v. Detroit Free Press, 95
Mich. 164, 54 N. W. 710. Where the alleged slanderous words are, "She is
ornrier than two hells," it is competent to show by persons who heard the
words what they understood them to mean. Wimer v. Allbaugh, 78 Iowa, 79,
42 N. W. 587. As to evidence of witnesses as to understanding of words, see
Johnston v. Morrison (Ariz.) 21 Pac. 465; Ilepubllcan Pub. Co. v. Miner, 12
Colo. 77, 20 Pac. 345.
4 7 Klene v. Ruff, 1 Iowa, 482, Burdick, I..ead. Cas. Torts, 215; Warmouth v.
Cramer, 3 Wend. 305; Townsh. Sland. & L. (4th Ed.) 94; 1 Starkie, Sland. &
L. 361. But, in an action for slander, a witness who heard the words spoken
oannot testify as to what his understanding of them was. Callahan v. In-
gram, 122 Mo. 3;j5, 26 S. W. 1020. Cf. Dickson v. State (Tex. Cr. App.) 28
S. W. 815; Di-essel v. Shippman (Minn.) 58 N. W. 684; Walker v. Hoeffner,
54 Mo. App. 554; Carpenter v. Willey, 65 Vt. 1(«, 26 Atl. 488; Howland v.
George F. Blake Manuf'g Co., 156 Mass. 543, 31 N. E. 656; Halley v. Gregg,
82 Iowa. 622, 48 N. W. 974; Edwards v. Wooton, 12 Coke, 35; Hicks* Case.
Hob. 375 (see these cases considered in Wcrnock v. Mitchell, 43 Fed. 428-
433). Defamatory words spoken by a lunatic, whose insanity was obvious,
or known to all the hearers, are not actionable. Dickinson v. Barber, 9 Mass.
224-227; Bryant v. Jackson, 6 Humph. 199; ante, c. 2; Yeates v. Reed, 4
Blackf. 463. So, also, of words siwken or understood as a jest Donoghue
V. Hayes, 265. Drunkenness is no defense. Kendrick v. Hopkins, Cary, 133;
Gates V. Meredith, 7 Ind. 440.
Ch. 8] PUBLICATION. 483
the publication is not actionable.** When the language published
may be understood in two senses, one very damaging to a certain
person and the other harmless, the publisher cannot object that his
readers gave it the sinister meaning.** Accordingly, witnesses are
generally allowed to state their own understanding of the words
spoken.'*^ In other words, the rule is that the plaintiff must prove
a publication by the defendant in fact That the third person had
an opportunity of reading the libel or hearing the slander is not
sufficient, if the jury are satisfied that he did not read the libel or
hear the slander, even though it is clear that the defendant desired
and intended publication.'^
SAME— REPUBLICATION.
168. Not every repetition, but every republication, gives
rise to a new cause of action.
"Every repetition," it was said in Earl of Northampton's Case,
"is a new publication, and gives rise to a new cause of action." ^^
So far as mere repetition is concerned, this rule has been aban-
doned/' But there is an important, valid, and subsisting distinc-
tion between repetition and republication. "Republication is a sec-
ond or subsequent publication in the same language. Repetition
is a publication of language of the same import or meaning, as the
language of a previous publication. Repetition is a subsequent pub-
lication, independent and distinct from the first publication. Tliere
may be a republication of a writing, i. e. a publication of the ma-
terial written upon, with the writing thereon, and there may be a
48Broderick v. James. 3 Daly, 481-484.
49 Jacksonville Journal Co. v. Beymer, 42 HI. App. 443. See, also, Morey
V. Morning Journal Ass'n, 49 Hun, 606, 1 N. Y. Supp.*475.
00 Freeman v. Sandei-son, 123 Ind. 204, 24 N. E. 239. Cf. Wlrner v. AUbaugli,
78 Iowa, 79. 42 N. W. 587.-
51 As to libel, see Odger, Sland. & L. (2d Ed.) 154, citing Clutterbuck v.
Chaffers, 1 Starkie, 471; Day v. Bream, 2 Moody & R. 55; Fonville v. Mc-
Nease, Dud. (S. C.) 303. As to slander, see Sheftill v. Van Deusen, 13 Gray,
304.
»2 12 Coke, 132-134.
B» 1 Hil. Torts, 410-415; Oilman v. Lowell, 1 Am. hQSxd. Cas. 242, note, and
cases cited. Post, p. 540, "Mitigation."
4S4 WRONGS AKFtCTIXG REPCTATION. [Ch. 8
repetition of the sabject-mattcr of a writing; also, there may be a
repetition of oral langnage(speech), but there cannot be a repoblica-
tion of oral lanj^uage." ** Tlierefore, if after a recovery and satis-
faction for one slanderous utterance or libelous publication, the same
defamatory matter is uttered or published again by the wrongdoer,
this is a new injury, and another cause of action, and there may be
another recovery and satisfaction from him.*' But a repetition of
the same article, as an issue of the newspaper subsequent to the
commencement of the action^ operates to show malice and to aggra-
vate damages.**
SAME— APPLICATION TO THB PLAINTIFF.
168. To recover for publication of defamatory wordis, the
plaintiff muBt show—
(a) Their personal application to him;^ and
(b) In a disparaging sense.
Personal Apiflication.
A general charge is not sufficient. *1f a man wrote that all law-
yers were thieves, no particular lawyer could sue him, unless there
is something to point to the particular individual.'* •• However, a
general charge may, by evidence that a certain person was specif-
ically referred to, be made sufficient,"* unless by its own nature it
54 Townsh. Sland. & L. p. 02, S 112. And see Woods v. Pangbnm, 75 N.
y. 495; Id., 14 Hun. r>40; Tillotson v. Cheetham, 3 Johns. 56; Thomas v.
Rumsey, 6 Johng. 2t5; Uockwell v. Brown. 30 N. Y. 207. With aU due al-
lowance for mitigating circumstances, damages will be awarded for injury
to charocter by slander, aggravated by repetition. Rev. Civ. Code, par. 3,
arts. 1934-2315.
55 Wood V. Pangbum, 75 N. Y. 495.
»« Welch V. Tribune Pub. Co., 83 Mich. 661, 47 N. W. 562; Ellington v.
Taylor, 46 La. Ann. 371, 15 South. 499; post, p. 520, "Actual Malice"; note
220.
1(7 McCallum v. Lambie, 145 Mass. 234. 13 N. E. 899, and cases coUected;
Le Fanu v. Malcomson, 1 H. L. Cur. 636.
08 Willis, J., in Eastwood v. Holmes, 1 t'ost. & F. 347-349. But cf. Lord
Campbell, In Le Fanu v. Malcomson, 1 H. L. Cas. 636-668; Dexter v. Harrison,
146 111. 169, 34 N. E. 46.
6» Thus "dagos'* may be applied to plaint iff. Craig v. Pueblo Press Pub.
Ch. 8] PUBLICATION. 485
is too uncertain.*® But, on the otlier hand, such person need not
be described by his own name.*^ He makes out his case by show-
ing that he is, and was understood to be, the person referred to.**
He must so satisfy the jury.** A court may determine this matter,
however, together with the defamatory nature of the words. Thus,
it has been held libelous as a matter of law to nickname Senator
Buckstaff "Senator Becksniff" (by reason of similarity to a Pecksniff),
the *aegislative God,"— and the like.**
The application must be to the plaintiff's person, not to his prop-
erty.** To be libelous against a particular person, it must concern
him, not a third person, even his wife.** 80 far as pleading is con-
Ck>. {Colo. App.) 37 Pac. 945. And see Boebmer v. Detroit Free Preen Co.,
94 Mich. 7, 53 N. W. 822.
•0 As to saj', "One of you three is perjured." Sir John Bourn's Case, cited
Cro. EUz. 497.
•1 James v. Rutlech (1599) 4 Colce, 17b; Dressel v. Shippman (Minn.) 58
N. W. 684.
«2 Roach V. Qarvan (1742) 2 Atk. 409; O'Brien v. Qement (18*6) 15 Mees.
St W. 434, 435; Dexter v. Harrison, 146 111. 369, 34 N. E. 46. Indeed, it may
be defKTibed by the name of some one else, Levi y. Milne (1827) 4 Bing. 195;
or by a fictitious name, King v. Clerk (1729) 1 Baraard. 304; or by asterisks,
Bourke v. Warren (1826) 2 Car. & P. 307. But see Hanson v. Globe News-
paper Co., 159 Mass. 293, 34 N. E. 4<>2.
03 Lawrence v. Newberry (1891) 64 I^w T. (N. S.) 797; Smart v. Blanchard,
42 N. H. 137; De Armond v. Armstronsr, 37 Ind. 35; (Joodrlch v. Davis. 11
Mete. (Mass.) 473; Boehmer v. Press Co., 94 Mich. 7, 53 N. W. 822; Ayres v.
Toulmin. 74 Mich. 44, 41 N. W. 855.
64 Buckstaff V. Viail, 84 Wis. 129, 54 N. W. 111. The actionable quality
of the words is one thing, the application to plaintiff another. Smith v. Coe,
22 Minn. 276; Petsch v. Dispatch Printing Co., 40 Minn. 291, 41 N. W. 1034;
Carlson v. Minnesota Tribune Co., 47 Minn. 337, 50 N. W. 229, construing
Gen. St. MlrfH. 1878, c. 66, § 115 (Rev. St. Minn. 1894, § 5257). In Stewart v.
Wilson, 23 Minn. 449, the publication complained of was as follows: "As
Mr. 'WUson has sworn to this answer, here is a good chance for the 'deacon'
to bring a complaint against hink for perjury. We ha^e not the slightest
doubt but there is a great deal of perjury in these numerous cases, and it
ought to be shown up. We have no Idea, however, that Mr. Wilson is tainted
with it in the slightest." Held that, in the absence of averment connecting
plaintiff with the deacon, there was no cause of action.
•6 Ante, p. 473.
•« The mere fact that a publication charges plaintiff's wife, since deceased,
with having procured a miscarriage upon her person. Is not libelous against
486 WKoN(;.s affecting refutation. [Ch. 8
cemed, it is now commonly sofBcient to allege generally that the
defamatory matter was published concerning the plaintiff.*^
Disparaging Sense,
A word naturally defamatory may be so used that it is neither in-
tended nor understood to have its literal and dama^g meaning,
but to be hannless.*' Thus, if one should say, "Thou art a mur-
derer," the words would not be actionable, if he could make it ap-
I)ear that the person with whom he was conversing concerning un-
lawful hunting had admitted killing several hares, and that by the
expression used he meant a '^murderer" of the hares so killed.** So
one may, without responsibility in damages, denounce another as a
"thief," and mean and be understood to mean no more than ttiat
the latter had been guilty of mismanagement of corporation affairs.^*
DAMAQE AS THE GIST OF LIBEL AND SLAKDEB.
170. Damage sometiineB is of the fcist of libel and slandery
and BometimeB is not.
Mr. Townshend has demonstrated that history is silent as to the
introduction of the action for defamation. Accordingly, he applies
hypothesis as a means of investigation as to the manner in which
the law protects reputation, and concludes that pecuniary loss is
the gist of the action. He regards the rule of law that certain lan-
guage is, per «e, and without other evidence, conclusive proof of pe-
cuniary loss, as only a rule of evidence, while the rule of right re-
plalntlff. WeUman v. Sun Print, and Pub. Co., CO Hun, 331. 21 N. Y. Supp.
577. A married woman, though living with her husband, may maintain action
for slander in her own name, and without joining him with her. Pavlovski
V. Thornton, 89 Ga. 829, 15 S. E. 822; Harper v. Pinkston, 112 N. C. 203. 17
S. E. 161.
«T Ratcliffe v. Evans [1892] 2 Q. B. 524; EUis v. Whitehead, 95 Mich.* 105.
54 N. W. 752; Nelson v. Wallace, 48 Mo. App. 193.
«8 Starkle, Sland. & L. 98, 99, et seq.; Van Rensselaer v. Dole, 1 Jotins.
Cas. (N. Y.) 279. And see valuable note to second edition.
«» Lord Crora well's Case, 4 Coke, 13.
7 0 Kidd V. Ward (Iowa) 59 N. W. 279; Delaney v. Kaetel, 81 Wis. 353. 51
N. W. 559; Wagner v. Saline Co. Progress Printing Co., 45 Mo. App. 6. And
see Ellis v. Whitehead. 95 Mich. 105. 54 N. W. 752. But see Jackscm^ille
Journal Co. v. Beymer, 42 111. App. 443.
Ch. 8] DAMAGE AS THE GIST OF UBEL AND SLANDER. 487
mains intact, that a pecuniary loss must be shown to entitle to a
remedy J*
To apply this distinction between a rule of evidence and a rule of
right to the entire law of tortfl would, however, be revolutionary.
There is no reason why the general law should be further filled with
exceptions. The distinction also ignores the important proposition
that where damages are presumed by the law from the invasion of
a right (whether called natural, simple, absolute, or by other name),
no inquiry is allowed into the character of the actual harm suffered.
Then, there is no requirement that such actual harm be sufficient in
quantity, temporal in character, or proximate in sequence, so far as
mere right to recover (but not extent of recovery) is concerned. This
distinction, accordingly, would seem to be untrue or misleading.
The fact is that here the law is eminently artificial. It has held
that certain classes of words in slander and a different class of
words in libel are actionable per se; that is, invade a simple (or
absolute) right of reputation. Upon proof of publication of such
words, or absence of any defense, the plaintiff must recover at least
nominal damages. The law has further held that where words are
not within these classes (i. e. slanderous or libelous per se), then they
are actionable only on proof of special injury to the complainant. Up-
on proof of publication of words not per se defamatory, even in the
absence of any defense, the plaintiff cannot recover, unless he shows
that he suffered harm which conforms to the standard fixed by the
general rules.
Louisiana Rule.
Louisiana, freed from many of the fetters of the common law, and
deriving its inspiration largely from the civil law, well illustrates
the natural rule as to defamation of persons. It is provided by
its Code ^* that "every act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it." "Tlie
courts of that state are not bound," said Fenner, J., in Spotorno v.
Fouriehon,^* **by the technical distinctions of the common law as to
words actionable per se and not actionable per se, and allowing for
Ti Townsh. Sland. & L. p. 44, § 56*
7 2 Article 2315, Civ. Code, 1889.
7 8 40 lA. Ann. 423, 4 South. 7h
488 WRONGS AFFECTING REPUTATION. [Ch. 8
the latter only actual pecuniary damages specially proved/' ^* If the
charges are false, injurious, and made maliciously or mala animo,
they combine all the elements essential to support the action.^*
Both damage and injury and the malice may be inferred from the
nature and falsity of the words, and from the circumstances under
which they were uttered, without the necessity of special proof. ^*
It was therefore held that, under the social habits and customs and
prejudices preyailing in that state, charging a white man with be-
ing a negro was actionable slander.'''
The consideration of this confused subject will follow this order:
(1) The extent to which damage is of the gist of a cause of action
in slander, and the character of such damage; (2) the extent to
which damage is of the gist of a cause of action in libel; (3) cases
in which damages will be presumed in libel and not in slander.
SAME^PBESUMPTION IK ACTION FOB SLANDER.
171. The rule in actions for slander is that damages —
(a) Will be presumed by law whenever the alleged
slanderous matter —
(1) Imports a charge of punishable crime;
(2) Imputes a contagious or offensive disease;
(3) Is calculated to injure the plaintiff in his call-
ing; or
(4) Tends to the disherison of the plaintiff.^
T4 Miller v. Holstelne, 16 La. 627; Feray v. Foote, 12 La. Ann. 894.
T5 Note confused use of "injurious."
7 0 Miller V. Holstelne, supra; Dally v. Van Benthuysen, 3 La. Ann.
69; Tresca v. Maddox, 11 La. Ann. 206; Cass y. New Orleans Times, 27 La.
Ann. 214.
77 Toye V. Mc^Iahon, 21 La. Ann. 308; Warner v. Clark, 45 La. Ann. 863,
13 South. 203 (commenting, Inter alia, on Dunsee v. Norden, 36 La. Ann. 79).
T« Onslow V. Home, 3 Wlls. 177-185 (De Grey, 0. J.) followed in Alex-
ander V. Jenkins [1892] 1 Q. B. 797; Starkie, Sland. & L. 105; Pig. Torts, 305;
Bigelow, Lead. Cas. 99; Fras. Torts, 86. There is another exception in Eng-
land, by local custom, as imputing unchastity to a woman in London or
BristoL Shearw. Torts, 30.
Cfa. 8] DAMAGE AS THE GIST OF LIBEL AND BLANDER. 480
(b) Mu8t be proved in all other cases to have produced
to the plaintiff some special injury, which
must be, inter alia,
(1) SufGLdent in quantity;
(2) Pecuniary or temporal; and
(3) Proximate.
Damages Presumed,
Matters which are slanderous per se are also libelous per se.
Hence, when the cases of matter libelous per se, but not slanderous
per se, have been duly regarded, consideration of matter defamatory
per se is completed. Detailed discussion of the four classes of
words in which the law presumes damage in slander is therefore
postponed until the subject of the defamatory words comes up in
logical order.
Special Injury — Nominal Damages.
The law will apply the maxim, *T)e minimis non curat lex," to the
special injury or damage which a person must allege and prove to
entitle him to recover for words not slanderous per se.''*
Same — Pecuniary Loss,
Such damage must be pecuniary or temporal, not merely sentimental.
They are allowed "whenever a person is prevented by slander from
recovering that which would otherwise be conferred upon him gratu-
itously,'' as the loss of customers by a tradesman.*® But generally
loss of consortium vicinorum gives no ground of action.®^ So, if
words prevent one from being invited to a friend's house to dinner,
they are actionable; ** but not if they prevent one's election to a
club, and thus prevent dining friends. Chance of election, unlike
actual membership, is not of temporal value.**
f»
T» Ante, c. 5, "Remedies.'
80 Pol. Torts, 300-303; Steele v. Soiitliwick, 9 Johns. 214, 1 Am. I^ad. Cns.
106; 6 Am. Law Rev. 593; 1 Starkie, Sland. & L. 194-202; Bassil v. Elmoi-e,
65 Bai-b. 627, 48 N. Y. 561; Tettlbone v. Simpson, 66 Barb. 402. And see
Beach v. Ranney, 2 Hill, 309; Roberts v. Roberts, 5 Best & S. 384, 33 Law
J. Q. B. 249; Anonymous, (30 N. Y. 262 (charge of self pollution); Woodbiiiy
V. Thompson, 3 N. H. 194.
«i Roberts v. Roberts, 5 Best & S. 384, 33 Law J. Q. B. 249.
82 Davies v. Salomon, L. R. 7 Q. B. 112; Lynch v. Knight, 9 H. L. Cas. 599,
88 Chamberlain v. Boyd, 11 Q. B. Div. 407-416.
490 WRONGS AFFECTING REPUTATION. [Ch. 8
Mere words of common abuse are not actionable without proof of
special pecuniary damages, and the law has been very generous to
a slanderer in its definition of common abuse, l^us, to charge pros-
titution, or to say of a married woman that she was "a liar and in-
famous wretch, and that she had all but been seduced by a notorious
libertine," is not actionable without averring and proving loss of
temporal advantage."* So, to say of a woman that the defendant
"looked over the transom light and saw Mrs. P. (the plaintiff) in bed
with Capt. D." was not actionable, t^ithout proving special damages;
and to allege that by reason of such false statement the plaintiff
was damaged in her name and fame is not sufficient to show special
damages.*' If, however, reflection on chastity result in preventing
a person's marriage, damages may be recovered, but even then only
when there has been special pleading."* The English "Slander of
Woman Act" has made words imputing unchastity or adultery slan-
derous per se.
It has been held that a charge of adultery by a clergyman is not
scandalous per se. And a man may with impunity, unless such per-
son thereby suffers special injury, call another a "black-leg," "^ a
"gambler," •• a "rogue,^' ®" a "welcher," ••* a "low fellow." "^
Same — Proximate or Remote Damages.
As in all cases of tort, damages to be recoverable must be proxi-
mate not remote. But while the right to reputation was generally
regarded as absolute, the courts did not extend the liberality of the
rule as to consequences applied in trespass to slander. On the
contrary, in the celebrated case of Vicars v. Wilcox,** where a per-
son spoke disparaging words of another, by reason of which the
«* Lynch v. Knight, 9 H. L. Cas. 431-448; Weaver v. Rltter, 14 Pa, Ck>. Ct.
R. 486.
85 PoHard v. Lyon, 91 U. S. 225.
«• Davis V. Gardiner, 4 Coke, 16b, pi. 11; Reston v. Touifreict, Cro. Ellas.
639; 3 Bl. Oomm. 124.
«7 Parrat v. Carpenter, Cro. Eliz. 502 (charge of adultery by a clergyman
not slanderous); Bamett v. Allen, 27 Law T. 491.
«8 Forbes v. King, 1 Dowl. P. C. 672.
«» Hopwood V. Thorn, 8 C. B. 293-313.
90 Blackman v. Bryant, 27 Law T. (N. S.) 491.
»i Lumby v. Allday, 1 Cro. Jac. 301.
• 2 Vicars v. Wllcocks, 8 East, 1.
Ch. 8] DAMAGE AS THE GIST OF LIBEL AND SLANDER. 401
latter was dismissed from seryice, the damages were held to be re-
mote. This holding is manifestly unsound.®* True to their love
for the "reasonably prudent man," the English courts incline to sep-
arate a natural and probable, from a remote, consequence, by what
such a person would have foreseen as the result of a given conduct.
Thus, in Lynch v. Knight,** in consequence of a charge of levity (but
not incontinence), a husband turned his wife out of doors. It was
held that no action lay, on the ground that the damage was not the
natural result of the slander, but arose from the rashness or idiosyn-
crasy of her husband. "The act constituting the special damage
must be such as might be expected from a reasonable man who be-
lieved the truth of the words according to the intention of the slan-
derer." •' •
A wrongdoer is not bound to anticipate the general probability
of wrongdoing by a third person. Therefore he is not bound to fore-
see the repetition of a libel, any more than a particular act by thifl
or that individual.*' But one who gives defamatory matter to a
reporter is responsible for its publication in a newspaper.*^
"An action may sometimes be maintained for words written for
which an action could not be maintained if they were merely spo-
ken." •* Libel is regarded in the law as an injury of a "greater
and more aggravating nature than slander.'' Tlie reason for this
distinction may, perhaps, most truthfully be found in the histori-
es Lynch V. Kniffht, 9 H. L. Gas. 577. But see Wallace v. Rodgers, 156 Pa.
St 305, 27 Atl. 163.
»* 9 H. L. Gas. 577.
• 5 Pig. Torts, 309.
•« Holmes, J., In Burt v. Advertiser Newspaper Co., 154 Mass. 238-247, 28
N. E. 1, and cases cited; McDuff v. Detroit Evening Journal Co., 84 Mich. 1,
47 N. W. r»71; Hardy v. Williamson, 86 GiL 551, 12 S. E. 874; Halley v. Gre;;g,
82 Iowa, 622, 48 N. W. 974.
•7 state V. Osbom [1895] 54 Kan. 473, 38 Pac. 572; Glay v. People, 86 III.
147; GliCford v. Cochrane, 10 111. App. 570-577; Wilson v. Noonan, 27 Wis.
598; Miller v. Butler, 6 Gush. 71; Queen v. Cooper, 8 Q. B. 533; Adams v.
Kelly, 1 Ryan & M. 157; Parkes v. Prescott, L. R. 4 Exch. 169; Field v. Col-
son (Ky.) 20 S. W. 264; ante, p. 383. c. 5, ^'Special Damages."
» 8 White V. Nicholls, 3 How. 266; Thorley v. Lord Kerry, 4 Taunt 355.
citing Com. Dig. **Libel," A, 3, referring to cases in Fltzg. 121-253; Crop v.
Tiluey, 3 Salk. 220, per Holt, C. J.
492 WRONGS AFFECTINQ KBPl'TATION. £Ch. 8
cal deyelopment of the law rather than in the nature of the offense.**
It is commonly urged that the difference is justified by the method
of publication involved. In libel, the fact that production is
one thing and publication another shows premeditation and de-
sign, and always, to some extent, affords opportunity for examina-
tion into the truth of the charge, so that the inference of malice is
more certain. Again, the means of publishing libel tends to keep
the charge 'Afresh in imagination, while with slander the words
might not dwell in the memory." Written defamation is likely to
have a more extended circulation than spoken words. And, finally,
the tendency of libel, because of these considerations, to cause a
breach of peace is more direct than that of slander.^®^ The sound-
ness of the reasoning has been often and ■ vigorously questioned.
Lord Mansfield, although he refused to repudiate the distinction
because of authority, said: *lt is curious that they [the judge
and counsel who sustained the distinction] have ♦ • ♦ ad-
verted, to the question whether it tends to produce a breach of
peace; but that is wholly irrelevant, and no ground for recovering
damages. So it has been argued that writing shows deliberate
malignity; but the same answer suffices, that the action is not
upon the ground of malignity but for the damage sustained. So it
is argued that a written scandal is more generally diffused than
words spoken, but an assertion made in a public place ♦ ♦ •
may be much more extensively diffused than a few printed pai>ers
dispensed, or a private letter. It is true that a newspaper may be
generally read, but that is all casual.'' ^®^
»o BJffclow, Lead. Cas. 99. And see article in 10 Law Quart Rev. 158, by
Mr. .Joseph R. Fisher.
100 Pig. Torts. 313; Clement v. Chi vis, 9 Barn. & C. 172; McClurg v. Ross,
5 Bin. (Pa.) 218, 219.
101 Thorley v. Lord Kerry, 4 Taunt. 'r)5. at page 364. And see Deford v.
Miller, 3 Pa. St. 103; Colby v. Reynolds, G Vt. 489; Archbishop v. Robeson,
5 Bing. 17-21.
Ch. 8] DAMAGE AS THK GIST OP LIBEL AND SLANDER. 4i>3
SAMK— FBESUMFTION IN ACTION FOB LIBEL.
172. The rule as to damages in libel is that damages —
(a) Will be presumed only when the matter complained
of as libelous is in its nature ordinarily cal-
culated to —
(1) Injure the complainant in his calling;
(2) Injure complainant in his social relations; or,
(3) To subject him to public scandal* scorn, ridicule,
or contempt.
(b) Must be proved in all other cases to have produced
special loss or injury to the plaintiff con-
forming to legal standards.
This is the general rule of damages applied to violence of right
of reputation. Certain words are defamatory per se. What such
words are is determined, not by the use of artificial or historical
tests, — ^the "four-class test," as in slander, — but by a reasonable
and natural standard, viz. the inevitable tendency of certain classes
of words to do what a man of sound common sense would call
damage. Other words, which are not necessarily harmful, may be-
come so under the circumstances of a particular case. Then the
burden is on the complainant to show what loss to him was con-
sequent on their publication.
Damages Presumed,
Whenever words are libelous per se, no proof of actual injury
is necessary to entitle the plaintiff to recover something. The law
presumes that he had suffered some injury by reason of the pub-
lication, and the amount of that injury or damage is a question
for the jury.^°' Whenever words are slanderous per se, they are
also libelous per se.^®'
102 Henkle v. Schanb, 94 Mich. 5i2, 54 N. W. 293; Smith v. Sun Printing &
Pub. Ass'n, 5 C. C. A. 91, 55 Fed. 240; Wynne v. Parsons, 57 Conn. 73, 17 Atl.
3G2; Newell, Dcfam. 181.
108 Bergmann v. Jones, 94 N. Y. 51; 1 Suth. Dam. p. 12; Miles v. Harring-
ton. 8 Kan. 425, 430; Yeates v. Reed, 4 Blaokf. 4(53; Swift t. Dickerman, 31
Conn. 285; Mitchell v. Milholland, 106 111. 175; Stewart v, Minnesota Tribune
494 WRONGS AFFECTING REPUTATION. [Ch. 8
Words Defamatory per Se in lAhd, btU not in SUmdtr,
''An action for libel may be sustained for words published which
tend to bring one into public hatred, contempt, or ridicule,*** even
though the same words spoken would not have been actionable.
And it would seem so apparent that an individual may be brought
into hatred, contempt, and ridicule, within the meaning of the
law, by professing vicious, degrading, absurd principles, that it can
need no discussion." This was ajiplied to a publication that a per-
Co., 40 Minn. 101, 41 N. W. 457; Haney Manufg Co. v. Porklns, 78 Mich. 1,
43 N. W. 1073.
104 Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 5 South. 332 (under Code Ala.
I 2720). "Generally, any false and maUcious publication, when expressed in
printing or writing, or by signs or pictures, is a libel, which charges an offense
punishable by indictment, or which tends to bring an individual into pubUc
hatred, contempt, or ridicule, or charges an act odious and disgraceful in
scx'iety. This general definition may be said to include whatever tends to
injure the character of an individual, blackens his reputation, or imputes
fraud, dishonesty, or other moral turpitude, or reflects shame, or tends to put
him wltliout the pale of social intercourse." Clopton, J., in citing Trimble v.
And(»rRon, 79 Ala. 514; Henderson v. Hale, 19 Ala. 154; Dexter v. Spear,
4 Mason, 115, Fed. Cas. No. 3,8G7; Adams v. Lawson, 94 Am. Dec. 455-460;
Solverson v. Peterson (Wis.) 25 N. W. 14; 1 Am. Lead. Cas. 127; 4 Wait,
Act. & Def. 2S2. In an action brought under Code 1S80, § 1004, making ac-
tionable words which from their usual construction and common acceptance
are considered insults, no special damages need be alleged or proved. Mc-
I-ican V. Warring (Miss.) 13 South. 2.^0. And, generally, in exposing to hatred
and ridicule, see Augusta Evening News v. Radford, 91 Ga. 494, 17 S. E. 612;
Buckstaff V. Viall, 84 Wis. 120. 54 N. W. Ill; Winchell v. Argus Co., 09 Hun,
354, 23 N. Y. Supp. 650; Stafford v. Jklorning Journal Ass'n, GS Huu, 467, 22
N. Y. Supp. 1008; PatcheU v. Jaqua, 6 Ind. App. 70, 3;i N. E. 132; Hatt v.
Evening News Ass'n, 94 Mich. 114, 53 N. W. 952; Allen v. News Pub. Co.,
81 Wis. 120, 50 N. W. 1093; Cerveny v. Chicago Dally News Co., 139 111. 315,
28 N. E. 692; Stokes v. Stokes, 76 Hun, 314, 28 N. Y. Supp. 165; O'Shaugh-
nossy V. Morning Journal Ass'n, 71 Hun, 47, 24 N. Y. Supp. 609; O'Shaugh-
nessy v. New York Recorder Co., 58 Fed. 653; Manget v. O'Niell, 51 Mo. App.
35. See, also, Augusta Evening News v. Radford, 91 Ga. 494. 17 S. E. 612;
Buckstaff V. Viall, 84 Wis. 129, 54 N. W. Ill; Patchell v. Jaqua, 6 Ind. App.
70, 33 N. E. 132. An article was published in defendant's paper, setting forth
in sensational style that plaintiff was engaged to be married to a young lady;
that he had ordered his wedding supper, and hired a minister to perform the
ceremony; and that, a few hours before the marriage was to be solemjilzed,
the young lady had eloped with his cousin. It also charged plaintiff ^th a
Ch. 8] DAMAGE AS THE GIST OF LIBEL AND SLANDER. 495
son had failed of election because he was an anarchist^®* While
it is not slanderous per se to call a woman a **bitch," *®* or a pros-
stitute,*®^ a publication charging a female of previous good repute
and chastity with having traveled with a married man, and with
having been turned out of an hotel, and that the revelation has
caused a sensation in the community where it transpired, is action-
able libel. ^®* It is libelous per se to write of a man that "he has
turned into an enormous swine who lives on lame horses, and that
he will probably remain a swine the rest of his days."' **• To
write of one that he is a "swindler*' is libelous,*^® bufc the words are
denial of the engagement, and of any relationship with the person aUeged
to be his cousin. Held that, if such publication was untrue, it was libelous,
as tending to bring ridicule and contempt on plaintiff. Hatt v. Evening News,
1>4 Mich. 114, 53 N. W. 952. See, also, Cerveny v. Chicago Daily News Co.,
139 in. 345. 28 N. E. 692.
105 Cerveny v. Chicago Daily News Co., 130 111. 345, 28 N. K. «02. Cf. Stew-
art V. Pierce (Iowa) 61 N. W. .'{88.
106 Nealon v. Frisbie, 11 Misc. Rep. 12, 31 N. Y. Siipp. 856. Or herm p'u-o-
dite, Weatherhead v. Armitage, 2 Lev. 233. But see Malone v. Stewart, 15
Ohio, 310. It is not slanderouH per se to say of a man, "He is a bloodsucker,
and not worthy to live in the commonwealth, and his child unborn is bound
to curse him." Thimmel thorp's Case, Noy, 64. The publication of a letter in
which it is said: "You cannot get [plaintiffj down any lower than he is; he
is low enough; you can't got him down any lower; you can't spoil a rotten
egg,"— is libelous per se, without innuendoes, and no allegation of special dam-
age is necessary. Pfltzinger v. Dubs, 12 C. C. A. 399, 64 Fed. C96. Ant(\
p. 490. Words of common abuse not slanderous.
107 In Idaho, the charge that a woman is a "public prostitute" is not action-
able per se; neither adultery, fornication, nor prostitution being punishable
as such by statute. Douglas r. Douglas (Idaho) 38 Pac. 934.
108 Indiana polls Journal Newspaper Co. v. Puch, 6 Ind. App. 510, 33 N. E.
991; McMahon v. Hallock, 48 Hun, 617, 1 N. Y. Supp. 312; Mason v. Stratton,
49 Hun, 606. 1 N. Y. Supp. 511.
100 Solverson v. Peterson, 64 Wis. 198, 25 N. W. 14. So to call a man a
"skunk," Massuere v. Dickens, 70 Wis. 8:^, 35 N. W. 349. To publish. "I found
an imp of the devil, in the shape of Jim Price, sitting in tlie mayor's seat;
and now, sir, that imp of the devil and cowardly snail, that shrinks back into
his shell at the sight of the slightest shadow, had the bravery to issue an
execution against me," is libelous per se. Price v. Whiteley, 50 Mo. 439.
110 Anson v. Stuart, 1 Term R. 748; Townsh. Sland. & L. p. 207, notes 3, 4;
Smith V. Stewart, 41 Minn. 7, 42 N. W. 595 (inter alia, "Irresponsible, unadul-
496 WRONGS AFFECTING REPUTATION. [Ch. 8
not slanderous per se.*** It is libelous i^ev se to refer to one's
"intimacy with a well-known young local elocutionist"; but such
language would not be slanderous, in the absence of special in-
jury.*^* It has been suggested^** that a charge of having the
itch, if written or printed and published, would be actionable, but
not if spoken. While slander, injuring a man merely in his social
relations, without inflicting pecuniary harm, is not actionable,***
it is otherwise as to libel. To say that a man has been blackball-
ed, and that he is ungrateful,*" impecunious,*** insane,**^ or even
to charge him with unfeeling conduct,*** is libelous. So to de-
scribe him as a hypocrite,*** or to accuse him in print of lying, is
libelous per se.^^**
Special Injury in lAbeL
In libel, as in many other causes of action, one may be able to
recover by showing special injury to himself when he would be en-
titled to nothing in the absence of such special injury. Thus, in an
action for a malicious falsehood, intentionally published in a news-
paper about a person's business, — ^a falsehood not actionable as a
personal libel and not defamatory in itself,— evidence that a general
terated, first-class humbug and fraud"). But see Williams v. Giiica^ Herald
Ck>., 46 HI. App. G55 ("swindling scheme" not libelous).
Ill Savile v. Jardlne, 2 H. Bl. 532; Black v. Hunt, 2 L. R. Ir. 10; Broom-
field r. Snoke, 12 Mod. 307 (cozening); Chase v. Whitlock, 3 Hill, 13a; Odiorne
V. Bacon, 6 Cush. 185; Weil v. Altenhofen, 26 Wis. 70S; Lucas v. Plinn, 35
Iowa, 0. But see Stern v. Katz, 38 Wis. 130; Forrest v. Hanson, 1 Cranch, 63.
113 Collins y. Dispatch Pub. Co., 152 Pa. St 187, 25 Atl. 546; Indianapolis
Journal Newspaper Co. v. Pugh, 6 Ind. App. 510, 33 N. E. 091. Words spoken
of a woman, "that she was in the habit of entertaining gentlemen callers at
all hours of the night," do not necessarily impute unchastity. Hemmens w.
Nelson, 138 N. Y. 517. 34 N. E. 342,
lis Villers v. Monsley, 2 Wils. 403, 404, by Bathurst and Gould, J J.
114 Ante, p. 489.
118 Cox V. Leo, L. R. 4 Exch. 284.
110 Eaton V. Johns, 1 Dowl. Pr. (N. S.) 602.
117 Morgan v. Lingen, 8 Law T. (N. S.) 800.
118 Churchill v. Hunt, 2 Barn. & Aid. 685.
1 1 0 Jones V. Greeley, 25 Fla. (529, 6 South. 448.
120 Riley V. Lee, 88 Ky. 603. 11 S. W. 713; Prosser v. Callis, 117 Ind. 105,
19 N. E. 735.
Ch. 8] DAMAGE AS THE GIST OF LIBEL AND SLANDEK 497
loss of business has been the direct and natural consequence of such
falsehood is admissible, and, if uncontradicted, is sufficient to main-
tain the action.^ ^*
Same — ^fental Suffering.
On the one hand it was held, in Terwilliger v. Wands,"^ that ill-
ness and inability to labor, caused by the effect on the mind of de-
famatory words, are not such special damage as will sustain an
action for slander, because only injuries affecting the reputation are
the subject of the action. The words must, therefore, disparage the
character, and this disparagement must be evidenced by some posi-
tive loss arising therefrom, directly and legitimately, as a fair and nat-
ural result. However, mental anxiety, grief, and loss of society result-
ing from libelous publication may be considered in estimating the
damage.^ ^' Indeed, the mental suffering caused by a false publica-
tion is regarded as general damage in cases of libel.^^* And mental
suffering is an element of actual damage, although malice be dis-
proved. If this were not the rule, "one of the principal elements
of damages would be excluded. If a virtuous young woman is en-
titled to no consideration for her injured feelings when she has
been publicly charged with the grossest immorality, courts might as
well deny her a cause of action." ^^^
i«i Ratcliffe v. Evans [1892] 2 Q. B. 524; Daniel v. New York News Pub.
Co., 6T Hun, C49, 21 N. Y. Supp. 862; Bradstreet Co. v. GIU, 72 Tex. 117, 9 S-
W. 753; Brown v. Durham, 3 Tex. Civ. App. 244, 22 S. W. 868; Haney
Manurg Co. v. Tcrklns, 78 Mich. 1, 43 N. W. 1073; Ante, c. 5, "Special Dam-
agofi."
i22TerwiUiger v. Wands, 17 N. Y. 54; AUsop v. AUsop, 5 Hurl. & N. 534;
Prime v. Eastwood, 45 Iowa, 640. But see Laing v. Nelson, 40 Neb. 252, 58
N. W. 846; Burt v. McBain, 29 Mich. 260; Swift v. Dickerman, 31 Conn. 285;
Chesley v. Thompson, 137 Mass. 136; Rea v. Harrington, 58 Vt. 181, 2 AtL
475; Welker v. ButJer, 15 111. App. 209.
123 Hamilton v. Eno, 81 N. Y. 116; Ward v. Dean, 57 Hun, 585, 10 N. Y-
Supp. 421. N
124 Republican Pub. Co. v. Mosman, 15 Colo. 399, 24 Pac. 1051.
125 Farrand v. Aldrich, 8? Mich. 593, 48 N. W. 628 (per Grant, J., at page
593, 85 Mich., and page 629, 48 N. W.).
LAW OF TOUTS — 33
498 WRONGS AFFECTING REPUTATION. [Oil. 8
CONSTRUCTION OP LANGUAGE USED.
173. In order to determine whether a statement is defam-
atory—
(a) It must be construed as to the ordinary and natural
meaning without technical interpretation; if not
defamatory in such meaning, —
(b) It must be construed with reference to the special
meaning, if any, in which it was understood by the
persons by and to whom it was published.^
Defamatory language is to be construed in its ordinary and popu-
lar sense.^*^ The test is what the persons to whom it was published
would reasonably suppose to have been intended, or did in fact un-
derstand, and not what the person publishing the defamation in-
tended to charge.^*® The ordinary principles of construction ap-
ply. The language, for example, must be construed as a whole.
Therefore, a statement that a person is a "forger" is not slander,
actionable per se, where such words are coupled with a charge of
some specific act, which of itself does not constitute forgery.^*" A
publication charging the commission of a crime need not contain
the technical statutory language in order to be libelous per se.^'®
126 Capital & CounUes Bank v. Henty, 7 App. Cas. 741, 52 Law J. Q. B. 232;
Fraser, Torts, 80.
127 When a publication is defamatory on its face, if plaintiff desires to en-
large its scope, and aggravate its meaning, by proof of facts tending in that
direction, the facts should be aUeged in his pleading, on the same principle
which compels such averment when the article, in and of itself, is no€ libel-
ous. Cassidy v. Brooklyn Daily F^agle, 138 N. Y. 230, 33 N. E. 1088; Id. (Sup.)
18 N. Y. Supp. 930. In an action for libel, charging plaintiff with being as
*'big a rascal" as one M., evidence is not admissible to show what kind of a
rascal defendant charged M. to be, in the absence of any allegation to the
effect in the same complaint Cassidy v. Brooklyn Dally Eagle» supra.
128 Post Pub. Co. V. Hallam, S C. C. A. 201, 59 Fed. 530, affirming 55 Fed.
456. But see Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N. E. 462.
Aute, p. 474.
128 Barnes v. Crawford, 115 N. C. 76, 20 S. E. 386; TurrlU v. DoUoway, 17
Wend. 42C; Thomas v. Blasdale, 147 Mass. 438, 18 N. E. 214; Hayes v. Ball,
72 N. Y. 418.
130 World Pub. Co. v. Mullen, 43 Neb. 126, 61 N. W. 108. As to general rule
Oh. 8] CONSTRUCTION OF LANGUAGE USED. 499
Words are to be constnied in the light of their Burroundings. Thus,
the natural extravagance of terms used in the heat of passion may
be intended and understood to mean much less than their normal
import.^"^ Although harmless upon their face, if found in bad com-
pany, words may, from that circumstance, be determined to have in-
jurious meaning. It then becomes a question for the jury, if there
is any such evidence of such extrinsic facts to be submitted to
them.^"* Therefore, where an alleged libel consisted in the publica-
tion by a mercantile reporting agency, for the information of its
subscribers, of a sheet containing, among the names of other busi-
ness men, that of the plaintiff, followed by asterisks, with no proof
of any meaning attached thereto, except the testimony of the de-
fendant's superintendent to the effect that they referred only to a
marginal note directing persons desirous of further information con-
cerning the persons in connection with whose name they occurred
to call at the defendant's office, a verdict was properly directed for
the defendant, as the characters were not libelous per se, and were
not shown to have any libelous significance as used.*''
Function of Court and Jury,
Where the purport of the publication complained of is plain and
unambiguous, the question whether it is a libel, in a civil action,
is for the court"* Thus, in Morgan v. Halberstadt,"' the alleged
of construction of words imputing a crime, see Smith v. Ck>e, 22 Minn. 276;
West V. Hanrahan, 28 Minn. 385, 10 N. W. 416; Stewart v. Wilson, 23 Minn.
449; Schmidt v. Wltherick, 29 M!un. 156, 12 N. W. 448; Mallory v. Pioneer
Press Co., 34 Minn. 521, 2G N. W. 904.
lai Ritchie v. Stenius, 73 Mich. 563, 41 N. W. 687. Cf. Courtney v. Mann-
hein (City Ct Brook.) 14 N. Y. Supp. 929; Zier v. Hofflln, 33 Minn. 66, 21 N.
W. 862.
182 wmiiams V. Smith. 22 Q. B. Dlv. 134; Shepheard v. Whitaker, L. R. 10
C. P. 502; Zier v. HoflBin, 33 Minn. 66, 21 N. W. 862; Brber v. Dan, 12 Fed.
526-532; Wqpdling v. Knickerbocker, 31 Minn. 268, 17 N. W. 387.
138 Woodniflf v. Bradstreet Co., 116 N. Y. 217, 22 N. B. 354; Benz v. Wieden-
hoeft, 83 Wis. 397, 53 N. W. 686.
i»* Morgan v. Halberstadt, 9 C. O. A. 147, 60 Fed. 592.
i«5 9 C. C. A. 147, 60 Fed. 592; Norton v. Livingston. 64 Vt 473, 24 Aa
247; Croasdale v. Bright, 6 Houst (Del.) 52; Savoie v. Scanlan, 43 La. Ann.
967, 9 South. 916.
•^00 WBONG8 AFFEGTIKO BBPUTATION. [Ch. S
libel charged that an Insorance agent waa short in his accoonts, and
that he had ^^oasted of the manner in which he had helped himself
to the company's money." It further charged that the agent **had
lMH?n given unlimited opportunities to swindle the policyholders,'' and
Htated that its readers were familiar "with the methods and extent
to which the agents named have availed themselves of their oppor-
tunities." It was held that there was no such ambiguity therein as
to make a question for the jury. On the other hand, where there
is an uncertainty or ambiguity in the defamatory character of liie
words, the question is ordinarily for the jury, under instructions
from the court. Thus, in an action of libel for publishing an article
charging a supervisor with receiving unlawful compensation for serv-
ices, he admitted receipt of the money, but claimed that he received
it for committee work, while the article charged him with receiving
it for his services while the board was in session. The defendants
claimed that the article charged him with unlawfully receiving it
for committee work. The article was ambiguous as to the services
for which the extra compensation was charged to have been receiv-
ed. It was held that the meaning of the article was for the jury.***
But in certain jurisdictions, for example, in Missouri, the jury are
the sole judges of the law as well as of facts.^"
SIGNIFICATION OF WORDS.
174. Words may be divided, in this coimectioii, into three
classes:
(a) Those which cannot possibly bear a defamatory mean-
ingy or innocent words;
(b) Those that are clearly defamatory on their face, or
words per se defamatory;*^
ii« Press Pub. Co. v. McDonald, 55 Fed. 264, affirmed 11 O. 5. A. 155, 63
Fed. 238; Ewing v. Alnger, 96 Alicli. 587, 55 N. W. 9D6; McAllister v. Detroit
Free Press Co., 95 Mich. 164, 54 N. W. 710; Schild v. Legler. 82 Wis. 73, 51 N.
W. 1090.
i»7 Arnold v. Jewett (Mo. Sup.) 28 S. W. 614. But see Mitchell v. Brad-
street Co., 116 Mo. 226, 22 S. W. 358.
n» Pratt T. Press Co., 30 Minn. 41-43, 14 N. W. 62.
Ch. 8] SIGNIFICATION OF WORDS. 501
(o) Those that are reasonably susceptible of a defama-
tory meaning as well as an innocent one, or am-
biguous "virords.
Innocent Words.
There are some words which are not of a disparaging nature in
the legal sense.^** Thus, to charge a man with having sued his
mother-in-law in a county court imputes lawful and proper con-
duct, and is not libelous.^*® So to describe one as a "man Friday*'
is not defamator\', "for the man Friday, as we all know, was a re-
spectable man, although a black man." ^** It is not libelous to pub-
lish of a professional man "that he has moved his office to his house
to save expense." *** Very often, however, words apparently in-
nocent have a double meaning, — one innocent, another defamatory.
In such cases, the innuendo^^^ may be made the basis of an ac-
tion by proper pleading. However, some words are not only ordi-
narily, but necessarily, innocent Thus, a publication to the ef-
fect that one was discharged from the superintendency of an of-
fice of the Farmers' Alliance 'ni)ecau8e of a heavy loss in the busi-
ness," and that the books of such office, "when balanced, showed
a net loss of $2,000," while another office showed a net profit of f 5,-
000 on a much smaller business, and that "the showing simply
proved" such person "to be a man of small business capacity," can-
not be construed, by means of an innuendo, to charge dishonesty
in conducting the office.***
189 Fraser, Torts, 79.
140 Cox V. Cooper, 12 Wkly. Rep. 75, and see Clay v. Roberts (18(53) 9 Jur.
(N. S.) 580. So to say that a man owes money does not imply that he can-
not pay his debtors. Per Bramwell, B., in Reg. v. Goghlan (18G5) 4 Fost. &
F. 316.
1*1 Forbes v. King (1833) 1 Dowl. 072, 2 Law J. (N. S.) Bxch. 109. And
see Lord Denman, C. J., in Hoare v. Silverloclc (1848) 12 Q. B. 024-<>31;
Hart V. Wall, 2 C. P. Div. 146.
142 Stewart v. Minnesota Tribune Co., 40 Minn. 101, 41 N. W. 457; O'Con-
nor V. Sill. GO Mich. 175, 27 N. W. 13 (criticism of school teacher); Walker
V. Hawley, 56 Conn. 559, 16 Atl. 674 (comment how a candidate procured his
nomination).
1*3 Post, p. 510.
1** Gaither v. Advertiser Co. (Ala.) 14 South. 788. A complaint for libel in
writing, to an insurance company for which plaintiff was adjuster, and
602 WRONGS AFFKCTING KEPLTATION. £Ch. 8
Words Defamatory per Se — Jmpming a Crime.
According to the early English law, it was not slanderous to im-
pute to another an offense, unless it was indictable, and scanda-
lous or infamous.**'^ Therefore, to say that one had "forsworn
himself" is not slanderous, because "forsworn" could not, of neces-
sity, be held to mean that he had committed perjury.**' So, to
charge that a person was one of those "who stole deer" imputed
a trespass, so that the charge was not, as it must be to be action-
able, "in itself scandalous." **^ In many of these cases, however,
the point of decision was that the words were not used in such a
sense as to impute a crime.*** The modern English rule is that a
charge of having committed a criminal, and not necessarily an in-
dictable, offense is actionable per se.*** Indeed, to say that a
person is a "returned convict" is actionable per se: for although
the words import that the punishment has been suffered, the obloquy
remains.* '^^
otherwise pubUshlng a letter reciting: "The insulting remarks offered to
our representative, • • • by your adjuster, ♦ ♦ ♦ at his office, in the
matter of ♦ • ♦, warrants us to withhold any new business from your
local agent here,'' states no cause of action, though It allege that defendant
meant by the letter to Impute to plaintiff a lack of business ability and
skill, and a want of honesty and integrity in his business, etc., as such
meaning cannot be given by innuendo to the words used. Cole r. Neustadter,
22 Or. 191, 29 Pac. 550. A letter by a man to a married woman stating: "I
like you, and want to tell you so. If you like me, I want to know it Let us
be friends, and good friends. Answer this,"— conveys no imputation of want
of chastity on the part of the lady, and is not libelous. Fields v. Curd (Ky.)
16 S. W. 45:3.
145 Starkle, Sland. & L. 133.
1*0 Holt V. Soholefield, 6 Term R. 691; Pig. Torts, 305.
1*7 Ogden V. Turner, 6 Mod. 104. So, to say, "You are a thief; you stole
my tree," contemplates a trespass, and is not slanderous per se. Minors v.
Leeford, Oro. Jac. 114; Bull. N. P. 5.
14 8 See Chape, Lead. Cas. 115.
140 Webb V. Beavan (1883) 11 Q. B. Div. 609, Chase, Lead. Cas. 112; Fraser.
Torts, 86. But see Pig. Torts, 305; Simmons v. Mitchell, 6 App. Cas. 156.
iBoDenman, C. J., in Fowler v. Dowdney (1838) 2 Moody & R. 119, 120.
And see Post Pub. Co. v. Moloney, 50 Ohio St. 71, 83 N. B. 921.
Ch. h] SIGNIFICATION OF WORDS. 503
Same — New York RuU
In New York the spirit of the earlier English cases was adopted
as the test In Brooker v. Caffin "^ Justice Spencer laid down the
following rule: '^n case the charge, if true, will subject the party
charged to an indictment for a crime involving moral turpitude,
or subject him to an infamous punishment, then they will be ac-
tionable in themselves." Hence, while, under the English rule,
from a charge of perjury damages will be presumed,^*^' in New
York it has been held otherwise.*'* But the courts of this state
have been able to find the charge of removing an ancient landmark
both indictable and involving moral turpitude.*'^* This rule has,
however, been frequently followed.***
Same — General American Rule,
The New York rule has been generally criticised and not fol-
lowed in many American states."* The test adopted is often a
confused one.**^ Statutes in many jurisdictions have affected this
portion of the law, both by definition of crime and of what words
are per se defamatory. But, whatever phrase is adopted, the de-
famatory words must charge a crime.*** It has been held not
i»i 5 Johns. 129. And see Brooks v. Harlson. 91 N. Y. 83; Young v. Mil-
ler, 3 HIU, 21, Chase, Lead. Cas. Ill, But see Widrig v. Dyer, 13 Johtis. 108.
152 Jones V. Heme, 2 Wlls. 87.
IBS Alexander v. Alexander, 9 Wend. 141.
i«* Young V. Miller, 3 Hill, 21. It was naturally held that "a newspaper
stigmatizing a certain house as a 'disorderly house' imputes that the occu-
pants are guilty of a misdemeanor, and is actionable, at the suit of one or all
of them." McLean v. New York Press Co., 64 Hun, 639, 19 N. Y. Supp. 2G2.
loBBeck V. Stitzel, 21 Fa. St. 22; State v. Burroughs, 12 N. J. Law, 426.
1 Am. Lead. Cas. 113; Burton v. Burton, 3 G. Greene, 316. And see cases
collected in Townsh. Sland. & L. 163. It is libelous per se to say of a per-
son that he is a member of a "gang" which had entered into a scheme to ob-
tain property by improper methods. Hatch v. Matthews, 83 Hun, 349, 31 N.
Y. Supp. 926.
i5« MlUer V. Parish, 8 Pick. 383.
1B7 Cf. Henderickson v. Sullivan, 28 Neb. 329. 44 N. W. 448, with Pokrok
Zapadu Pub. Co. v. Zizkovsky, 42 Neb. 64, 60 N. W. 358, approving it.
108 Cases coUected in Townsh. Sland. & L. 155, 156. Disturbing religious
meeting, Thomas v. Smith, 22 N. Y. 55-^9. Bribery, Booker v. State, 100 Ala.
30, 14 South. 561; Edwards v. San Jose Printing & Pub. Soc, 99 Cal. 431,
34 Pac. 128; Field v. Colson, 93 Ky. 347, 20 S. W. 264. Perjury, Upton v.
'1/(M WRONGS AVrECTOSG BEPCTATIOH. [Ch. 8
actionable per se to impute intention to commit a crime: ^** bnt to
<'harge an attempt to commit mnrder is actionable per se. Ttios,
while it is actionable to charge another with being a ^l>ladanail-
er/' ^** for this is equivalent to saving that he is guilty of the
(Hme of (•xtortion, it is not actionable to say of another that he "is
guilty of concocting a blackmail or extortion scheme,** as the words
i'harge merely a plan or purpose to extort money, which ia not
(MiniHhable unlcHs an attempt is made to carry it out.^*^ It is not
material that the words impute a crime in another state.*** At-
Hume, 24 Or. 420, 33 Pac. 810. Poisoning, Republican Pub. Ck>. t. Miner,
3 Colo. App. 568, 34 Pac. 485. Forgery, Beneway y. Thorp, 77 Mich. 181,
43 N. W. 803. Indecent and criminal Uberties, Tbibanlt v. Sessions, 101 Mich.
270, 59 N. W. 624. Arson, Clugston y. Garretson, 103 CaL 441, 37 Pac 4tS9:
Taylor y. Ellington, 46 La. Ann. 371, 15 South. 499; Dayis y. Carey, 141 Pa.
Hi. 314, 21 Atl. 633; World I'ub. Co. y. MuUen, 43 Neb. 126, 61 N. W. 108;
Oeisler y. Brown, 6 Neb. 254. Publication in a newspaper that N. and F.
were arrested and lodged in Jail to-day on charge of theft is Ubel per se.
Belo y. Fuller, 84 Tex. 450, 19 a W. 616. "The words 'God damned thief.*
applied to a person without explanation or qualification, amount to a charge
that the person has been guilty of larceny, and are actionable per se." Gaines
V, Belding, 56 Ark. 100,19 S.W.236. Stealing fixtures, St Martin y. Desnoyer
1 Minu. 41 ((;il. 25); Ualsey y. StiUman, 48 111. App. 413; McCauley y. El-
rod (Ky.) 27 S. W. 807. Theft, Collyer y. Collyer, 50 Hun, 422, 3 N. Y. Supp.
310. Embezzlement, Iron A^e Pub. Co. v. Crudup, 85 Ala. 519, 5 South. 332;
In re MacDonald (Wyo.) 33 Pac. 18 (receiving stolon goods); Hackett y. Proy-
Idence Tel. Pub. Co. (R. I.) 20 Atl. 143. Blackuviil, Hess y. Sparks, 44 Kan.
4()5, 24 I*ac. 979. The fact that defendant published an article charging plain-
ttfT with tlie commission of a felony conclusively establishes a cause of action
for actual or compensatory damages. Childers v. San Jose Mercury Printing
& Pub. Co., 105 Cal. 284, 38 Pac. 003. Adultery, Lowe y. Herald Co., 6 Utah,
175. 21 Pac. 001; Guth v. Lubach, 73 AVis. 131, 40 X. W. 681. Murder, Re-
publican Pub. Co. V. Miner, 12 Colo. 77, 20 Pac. 345. See, also, Thomas y.
Blasdale, 147 Mass. 438, 18 N. E. 214. And, generally, see Stumer y. Pitch-
man, 124 111. 250, 15 N. E. 757; Rose water v. Hoffman, 24 Neb. 222, 38 N.
W. 857; Gomez y. Joyce (Super. Ct. N. Y.) 1 N. Y. Supp. 337; Seery v. Viall,
10 R. I. 517, 17 Atl. 552; Beneway y. Thorp, 77 Mloh. 181, 43 N. W. 863.
iBo McKee y. Ingalls, 5 111. 30; Fanning y. Chace, 17 R. I. 388, 22 Atl. 275.
J«o Republican Pub. Co. v. Miner, 12 Colo. 77, 20 Pac. 345.
161 Mitchell y. Sharon, 8 C. C. A. 420, 59 Fed. 980. A complaint charging
lU'feudants with a conspiracy to slander plaintiff, but failing to sufficiently
plead the slander as against either, is demurrable, such conspiracy not being
In Itself a crime. Severlnghaus y. Beckman, 9 Ind. App. 388, 36 N. B. 930.
102 Van Rensselaer y. Dole, 1 Johns. Cas. 279.
Ch. 8] SIGNIFICATION OF WOBDS. 605
tributing want of chastitj to a woman is more and more regarded
as actionable per se.***
Same — Words Injuriovs to Calling.
"Whatever words have a tendency to hurt, or are calculated to
prejudice, a man who seeks his lirelihood by any trade or business
are actionable.'^ *•* "We think that the rule as to words spoken
les Imputation of fornication actionable, Ransom y. McOurley, 140 111. 634.
31 N. B. 119. Cf. Jacksonville Co. v. Beyraer, 42 111. App. 443. "Whore"
actionable, Micbelson v. Lavin (Ga.) 20 S. E. 292; Reitan v. Goebel, 33 Minn.
151, 22 N. W. 291; Stroebel v. Whitney, 31 Minn. 3»4, 18 N. W. 98; Bidwell
▼. Rademach^ (Ind. App.) 38 N. E. 879. An article in a newspaper headed,
"Two ♦ ♦ ♦ Teachers Guilty of Horrible Crimes," and importing that
plaintiff aided another teacher in taking indecent and criminal liberties with
the scholars, is actionable per se. Thibault v. Sessions (Mich.) 59 N. W. 624.
Calling a woman a "whore" in the presence of others, who heard it, is action-
able per se. Micbelson v. Lavin (Ga.) 20 S. B. 292. Words charging a person
with hayins been arrested for bastardy, and of having paid a sum of money
to settle it, are both actionable per se; bastardy not being a crime under the
law of New York. Erwin v. Dezell (Sup.) 19 N. X. Supp. 784. In an action
for slander, it appeared that the words charged were not spoken of plaintiff in
regard to his calling, and the complaint did not show what was his calling, and
alleged no special damage other than that plaintifTs neighbors and possible
customers would have no dealing with him because of the slander, and that
actions at law to enforce the payment of debts bad been brought against him
which would not have been brought but for the slander. Held insufficient to
sliow special damages. Id. Defendants published in their newspaper a
charge that plaintiff, when she was the wife of H., was detected by her hus-
band in a room at a hotel with one G. ; that they had registered under an as-
sumed name as husband and wife; and that H. confronted them when they
came out in the morning. Held, if false, sufficient to constitute a libel, and
that the demurrer to the complaint was properly overruled. Gray v. Baker
(Sup.) 19 N. Y. Supp. 940. And see Davis v. Sladden, 17 Or. 259, 21 Pac. 140.
The English statute on the point is [1891] 54-55 Vict c. 51.
18* Bagley, J., in Whlttaker v. Bradley, 7 Dowl. & R. 649. And, generally,
see Grulkshank v. Gordon, 118 N. Y. 178; Morasse v. Brochu, 151 Mass. 567,
25 N. E. 74; Ganvreau v. Superior Pub. Co., 62 Wis. 403, 22 N. W. 726; De
Pew V. Robinson, 95 Ind. 101); Fitzgerald v. Redfleld, 51 Barb. 484; Lumby
V. AUday, 1 Cromp. & J. 301; Arrow Steamship Co. v. Bennett, 73 Hun, 81,
25 N. Y. Supp. 1029; Nettles v. Somervell, 6 Tex. Civ. App. 627, 25 S. W. 658;
Burton t. O'Niell, 6 Tex. Civ. App. 613, 25 S. W^ 1013; McKenzie v. Denver
Times Pub. CJo., 3 Colo. App. 554, 34 Pac. 577. A postal card sent to a bank
to a corespondent from whom it had received a draft on '*B. Bors. & Co ,"
a mercantile firm, for collection, reading "B. in hands of notary," while in
506 WRONGS AFFECTIKG REPUTATION. £Ch, 8
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 doc*s not apply to illegal callings." ^"'^ The defendant may, if
he can, escape by showing lawful excuse. If he shows no excuse,
the law presumes damage.^ °° Therefore, the rule is that, as to
those callings in which credit is ordinarily essential to their suc-
cessful prosecution, language which imputes to one in such call-
ing a want of credit or responsibility is actionable per se.^*^
Thus, a false statement that a merchant in the habit of purchas-
fact the draft had been paid to the bank, is Ubelous per se. Ck)ntinental Nat.
Bank v. Bowdre, 92 Tenn. 723, 23 S. W. 131. Defendant, a taxpayer of the
viUage where the parties resided, published concerning plaintiff, an attorney,
the following: '*Make M. an attorney for the village so that every person that
gets spanked on the ice will be able to obtain a Judgment of from $1,000 to
$10,000 against the village." Held, that the publication was libelous. Mat-
tice V. Wilcox, 71 Hun, 485, 24 N. Y. 8upp. 1060; Brown v. Vannaman, 85 Wis.
451, 55 N. W. 183; MitcheU v. Bradstreet Co., 116 Mo. 226, 22 S. W. 358, 724;
Lapham v. Noble, 54 Fed. 108.
106 Per Channell, B., in Foulger v. Newcomb, L. R. 2 Exch. 327-330. But
to call a stone mason a ringleader of the nine-hour system is not actionable,
since this hardly relates to his calling. Miller v. David [1874] L, R. 9 O. P.
118.
lee Steele v. Southwick, 9 Johns. 214, 1 Am. Lead. Cas. 135; Craft v. Boite,
1 Saund. 241-243, note.
i«7 Read V. Hudson, 1 Ld. Raym. 610; Davis v. Lewis, 7 Terra. R. 17; Dob-
son V. Thornistone, 3 Mod. 112; Chapman v. Lamphire, Id. 155; Sewall v.
Catlln, 3 Wend. 291; Ostrom v. Calkins, 5 Wend. 263; Mott v. Comstock, 7
Cow. 654; Lewis v. Hawley, 2 Day, 495; Whittlngton v. Gladwin, 5 Barn. &
C. 180; Southam v. Allen, T. Raym. 231; Phillips v. Hoefer, 1 Pa. St. 62;
Blumhardt v. Rohr, 70 Md. 328, 17 Atl. 266 (diseased meat); Young v. Kuhn,
71 Tex. 645, 9 S. W. 800; Rider v. Rulison, 74 Hun, 239, 26 N. Y. Supp. 234;
Simons v. Bumham (Mich.) 60 N. W. 476; Newell v. How, 31 Minn. 235, 17
N. W. 383. Malicious commercial report, Lowry v. Vedder, 40 Minn. 475, 42
N. W. 542. It has been held that it is not actionable to say of traders that
they had executed a chattel mortj^^age. Newbold v. Bradstreet, 57 Md. 38.
Publishina one's name in a list of "dead beats and delinquents," for circula-
tion among business men, is libelous per se. Nettles v. Somervell, 6 Tex. Civ.
App. 613, 25 S. W. 658. A publication that plaintllTs management of an office
of the Farmers* Alliance proved him "to be a man of small business capacity"
Is libelous per se, as reflecting on plaintifiTs business capacity. Gaither v.
Advertiser Co. (Ala.) 14 South. 788. But in an action by a chair company for
Ch. 8] 8IGNIFICATI0A' OF WORDS. 507
ing goods on credit was heavily indebted, and had conveyed prop-
erty to his wife at half its value, is actionable per se.^*® Words
imputing insanity well illustrate the difference between responsi-
bility in libel and slander. In slander, such words are actionable
per se when spoken of one or his trade or occupation, but not
otherwise, without proof of special damage;^"® but an imputation
of insanity by any form of publication which constitutes libel is
per se libelous."® One may, with impunity, say of a public of-
ficer, after the expiration of his tenn, what would be slanderoua
per se while he was in office."^ Words derogatory of professional
Injury to name and reputation, the complaint charged that the defendant
had said of the plaintiffs with appropriate innuendoes, that they "used" to
make the "Young surgical chair," until Young shut them up on account of an
indebtedness; that Young never got anything for such indebtedness but a
worthless Judgment; and that he found them irresponsible, and any bank
would say so. It charged the defendant with saying that they had copied an-
other chair, and had been beaten on several points, and compelled to pay a
royalty. It was held, that the language complained of was not actionable
per se. Canton Surgical & Dental Chair Co. v. McLain, 82 Wis. 93, 51 N.
W. 1098. And see Irish- American Bank v. Bader (Minn.) 61 N. W. 328.
les Simons v. Buraham (Mich.) 60 N. W. 476.
i«» Anderson, J., in Moore v. Francis, 121 N. Y. 199, 23 N. B. 1127, citing
Morgan v. Lingien, 8 Law T. (N. S.) 800; Joannes v. Burt, 6 Allen, 236.
170 Moore v. Francis, supra; Morgan v. Lingen, supra; King v. Harvey, 2*
Barn. & 0. 257; Southwick v. Stevens, 10 Johns. (N. Y.) 443; Perkins v. Mitch-
ell, 31 Barb. 461^(>5. Insanity "not slanderous per se." Joannes v. Burt
(1863) 6 Allen, 236. And see Townsh. Sland. & L. § 177; Odger, Sland. & L.
23, 30 Am. Law Reg. 389. But see Mayrant v. Richardson, 1 Nott & McC.
(S. C.) 347; Walker v. Tribune Co., 29 Fed. 827 ("crank" not libelous per se).
171 That he "bribed Indians" is innocent, after expiration of term. Foward
V. Adams, 7 Wend. 204. While police officer holds office, imputation of bru-
tality is libelous per se. O'Shaughnessy v. New York Recorder Co., 58 Fed.
653. And see Cotulla v. Kerr, 74 Tex. 89, 11 S. W. 1058 (court's commis-
sioner); Gove V. Blethen, 21 Minn. 80 (justice); Larrabee v. Minnesota Trib-
une Co., 30 Minn. 141, 30 N. W. 462 (county attornej^. Fraud in election^
Edwards v. San Jose, P. & P. Co., 99 Cal. 431, 34 Pac. 128; Murphy v. Nel-
son, 94 Mich. 5.';4, 54 N. W. 282 (conduct of Justice of peace). The holder of
an office not being an office of profit cannot, in the absence of special damage,
maintain an action of slander for w^ords imputing to him misconduct and con-
sequent unfitness for the office, unless the imputation relates to his conduct
In the office, or unless, if true, it would lead to his removal therefrom. Alex-
ander V. Jenkins [1892] 1 Q B. 797. But to charge him with a lie in per-
eharairt#Y of clfrrjiTinen.*'* lawrera.*'* dortom*^* •rdiitectSw*'*
aetors,^^* and edncaton^-^ are aetknaMe. without allegitliwi or
lirrjof of iipecial daioage. Bat, to come within the cstesonr, the
words coiDplaJDed o^ moiFt refer to the plaintiff m his hnsness or
prr>f#rsinon,''* and not charge conduct on his part which is lawfol
«Dd proper.'**
fofmsDce of public duty is actionable. Prosser t. Callis. 117 lad. 106. 19 N. E.
735, To obaixe that plaintiff » an babiroal dmnkard, and nnfit for the office
of town froonctllcr, ia not actionable, in the absence of special damage. Alex-
ander T. Jenkins [1802] 1 Q. B. 797. And 9ee Ratcliffe t. Erans [1882] 2 Q. B.
524. As to charge of drunkennesB ^eneraDy, see Bron^ton t. McGrew. 3d
Fed. 672.
it* river T. Woolman, 43 Xeh. 280, 61 N. W. 388. As to <iUTge him with
dmnkenneMi, Ilayner t. Cowden, 27 Ohio 8t 292:
if* Greenwood t. Coffey, 26 Neb. 449, 42 X. W. 413; Hattlce t. WOcox,
Sd Hod, 62D, 13 N. T. 8opp. 330; Clark y. AnderMii» 50 Hun, 620, U
N. T. 8app. 729. The mere publication of a notice of foredoaoie sale
under a mortgmge made by plaintiff, an attorney engaged in the real-estato
business, farming, and keeping a hotel, which mortgage has been paid, is
not lil>eloiis per se, as tending to charge him with insolrency or dishonesty,
or as affecfing his credit. Campbell t. Missoori, K. & T. Ry. Co., 1 Mo.
Afyp, 3.
174 H<K;or y. Harris, 18 Barb. 425; Pratt y. Press Co., snpra. Where, in
an action for libel and slander for words 8i;K>ken and printed concerning
plaintiff as a physician, the facts stated in the petition show tliat plaintiff
had no autliority to practice medicine in this state, he is not entitled to re-
covcT, and a general demurrer thereto is properly sustained. Hargan v.
Punly, 93 Ky. 424, 20 S. W. 432. And, generally, see note to 26 Lawy. Rep.
Ann. 32ri.
17G Donnls V. Johnson, 42 Minn. 301, 44 N. W. G8.
iT6 Williams y. Davenport, 42 Mhin. 393. 44 N. W. 311.
ITT Ht. James Military Academy y. Gaiser (Mo. Sup.) 28 S. W. 851.
ITS A publication that "an enticing ar-tlcle" had recently been sent out by
plaintiff, asking subscriptions to a business corporation organized by him.
Is Tint projudlcial to plaintiff In his profession of lawyer, as it has no relation
to ills character or conduct as a lawyer. Keene v. Tribune Ass'n, 76 Hun,
4.HH, 27 N. Y. Supp. 1045. But see Gribble y. Pioneer Press Co., 34 Minn. 342,
25 N. W. 710; Id., 37 Minn. 277, 34 N. W. 30. That given proceeding was
"a <lirty Jew trick,*' Ilanaw v. Jackson Patriot Co., 98 Mich. 506, 57 N. W.
734.
119 Tliat a saloon keeper set up a prohibitory law as a defense to a just
claim, Homer v. Engielhardt, 117 Mass. 539. And see Ireland v. McGarvish,
1 Ban6f. 154«
Ch. 8] SIGNIFICATION OF WORDS. 609
Same — Contagious Disease,
Words which impute that oue has a contagious disease, which
would cause the person to be excluded from society,^®® may be ac-
tionable per se. But the imputation must be, not as having had,
but as having, such disease (i. e. the continuance of the disorder);
because it is only while the person is disordered that he is unfit
for society."^ Leprosy and the plague were such diseases; "* but
smallpox is not.^®* An imputation of having a venereal disease,^**
as gonorrhea,"*^ is actionable per se.
Same — Words Tending to Disherison,
If the words used tend to produce disherison of a person, they
are actionable per se, and it is not necessary to allege and prove
that in consequence he was in fact disinherited. Thus, in Humph-
rys V. Stanfeild ^^' defendant had said to plaintiff, "Thou art a
bastard." Such words were held actionable, without more; for
by reason of these words the plaintiff may be in disgrace with his
father and uncle, and they, conceiving a jealousy of him touching
the same, may disinherit him; and though they do not, yet the
action lies for the damage which may ensue.
Ambiguous Words,
The court having determined that words are not clearly innocent
or per se defamatory/®^ it is ordinarily a question of fact whether
180 Golderman v. Steams, 7 Gray, 181, Ghafie, Lead. Gas. 116; Williams v.
Holdredge, 22 Barb. 396; Hewit v. Mason, 24 How. Prac. 366; Kaucher v.
Blinn, 29 Ohio St. 62; Irons v. Field, 9 R. I. 216. And see, Colby v. Rey-
nolds, 6 Vt 489--494; Kinney v. Hosea, 3 Har. (Del.) 77-79.
181 Carlslake v. Mapledoram (1788) 2 Term R. 473; Smith's Case, Noy, 151;
Bloodworth v. Gray, 7 Mylne & G. 334; Pike v. Van Wormer, 5 How. Prao.
171. But see Miller's Case, Cro. Jac. 430. Of. Monks v. Monks, 118 Ind.
238, 20 N. E. 744.
182 Taylor v. Perkins (1607) Cro. Jac. 144; Crittal v. Homer, Hob. 385.
188 Odger, Sland. & L. 64, 65.
184 Golderman v. Steams, 7 Gray, 181; Upton v. Upton, 51 Hun, 184, 4 N.
Y. Supp. 936 (a married woman).
186 Watson V. McCarthy, 2 Kelly, 57.
186 Oo. Car. 469; Pig. Torts, 308.
187 Capital & Counties Bank v. Henty, 7 App. Cas. 741; Mulligan v. Cole,
L. R. 10 Q. B. 549; Gray v. Baker, 65 Hun, 620, 19 N. Y. Supp. 940; Jaekson-
Tille Journal Co. t. Beymer, 42 111. App. 443; Mitchell y. Shar(», 51 Fed. 424.
V L ."'1— M.S~j'l^. •! I.IP
X _- *
<<
* "..':f. .J .. .•* - 1 .-_-L i::»i "^ ' '•L Ti^iT > ^: «.'- i^
r."*' -. :.f '.r ^ ..-. - .. •: I : . i- a *-*'ii:.:i^ '1l •*^*a:r ini_' iia-r» _ <:i r:^ :ri L*>-
''A-.'-: • • • ?'ii..i'-.r^ '^••i'-iitra. . ^.i -nn-M »•■»• :if -_i^ >ci:iiiiri :rl Co^a-
• • r.^ ^ . ;<; :.-7 ' ..i •' i^i la. H-ni '-lar. -kiij.*** fi.cL« :f -ket •^ <iacr?"=iai wti--
r*-* > .i d.in.ii a/» f i^r.----*^ fr cz. i-'i-L* « :f iB^tL.ii .rr»ir3 aiaj taie rail-:::*!
f./-*^ i-r>. '».iA'.->r V.I* t..*rsL' n wii L.»-:« r::* TTia a 'iiHSO-a f:r i!ie jirr. lie-
fr .;i.«2 T, f*r**« Pi:i. O^ 55 F-r*L J:4. ±:^-3t!»i 11 C. C. A. IT-T^ SS FedL
2:;^, Bit Ji«*t Till r-i;.*;a T. Fj:c.***r Pr«s» O:^ 37 v -n is^ 33 y. W.
w;** j .,**.f^r,'.fr, /ia 'iu*^ ^pryi::^! 'irLt -iLZirl:!^ ia izi::^ cxL is a q-aestioo for
; ,r7, i«t. J*.v.^H% M.^rjkTf A-al-cij t. GaJ^er -Mx Scp.i S & W. S51-
yfi:^'^:»fir Up ta/ of a wocan thai "^izjt had a tod ^scase** is cqTxfTalcBl to
/r^.-ar:.".^ b^r w:*.h tarli;^ a r^ct^real di9ea;9e; or impeding to her vaat of
<r^ *♦.♦/, fai for th* Jory, Upr.n t. Upf-on. 51 Hon. 1SK 4 N. T. Siippi 99&
Wh"t/.^ a pnhiyrarlon in a iK^«paper, wtidi states that the "cmnoj dads
/'V/r/*^ f^X wt'b the ff(ati»r.^nt.'' refrired to the c*:untj aoditon, or to another.
Is a fi'i^tktt of fact. PrMM^r t. Callis, 119 lod. VXk 19 N. E. 735; Amott
r. Kfi»r»/lard Ass% 57 0>dil 8^ 17 Aa Xl\ Hosier r. StoU, 119 Ind. 244. 20
N, K, 752.
>** As to or/IkKinlnuL Van Tecbten t. Hopkins, 5 JobnsL 211; Brettnm t.
Aritb/inf, Vfy, Mass, 37; Patterson t. Wilkinson, 55 Me 42; Stnrterant t.
f(/^4, ZJ N, II. m\ Htitzell T. Reynolda, 59 Pa. St. 4S8. A complaint charging
th»t fVff^j/lsnt said, concerning plaintiff, *'He took and drove off my docks,
ft rid s^/ld tiicrri/' withont a collognlnm or innuendo, states no canse of action.
Uun\n4m r. Mflnnhfp, V2li) Ind. 43, 22 N. E. S7; Petsch t. Disi>atch Printing
4Uf., 40 Minn. 2JJl, 41 N. W. 1^XJ4; Prendergast v. Same, 40 Minn. 295, 41 N.
VV, Uf^'^p; VU'kcrs ▼. Htoneinan, 73 Midi. 419, 41 N. W. 495; Ayres v. Tonl-
irilri, 7i MIrii. 44, 41 N. W. 855; Wilcox t. Moon, 61 Vt 4S4, 17 AtL 742;
Moukn V. Monks, 118 Ind. 238, 20 N. E. 744.
i<»" I'ol. Torts, p. 217; Barliam v. Nethersal, 4 Coke, 314; Van Veohten v.
Hopkins, 5 Johns. 211; Hare & W. Lead. Cas. 138, and note. In an action
for nUiutUiV for saying to an unmarried woman in the presence of others,
"Yon wfini U> conn; homo, and lose another young one, like you did," the com-
plaint must all(*g(d by way of innuendo that it was intended thereby to charge
Oh. 81 SIGNIFICATION OF WORDS. 613
given term as defined by lexicographers is innocent, but as col-
loquially used meant adultery, to be basis of recovery in a legal
action it must be alleged and proved that it was used in the ac-
tionable sense.*®^ An innuendo cannot introduce new matter or
enlarge the natural meaning of words, or put upon them a con-
struction they will not bear. Its office is to define the defamatory
meaning which the plaintiff sets upon the words, — to show how
they came to have that meaning, and how they relate to the plain-
plaintlfF with having had illicit sexual intercourse, and that the persons hear-
ing the words so understood them. Cosand v. Lee (Ind. App.) 38 N. E. 1099.
So a simple marriage notice is not libelous, but may be made so by proving
that the alleged bride was a prostitute. Caldwell v. Raymond, 2 Abb. Prac.
193. A "tax-title shark" is not a phrase actionable per se, but may be made
actionable by proper pleading and proof. Stewart v. Minnesota Tribune Ck>.,
41 Minn. 71, 42 N. W. 787. So, a "blind tiger," applied to a building. Schulze
V. JaloDick (Tex. Civ. App.) 29 S. W. 193. An issue can never be raised
upon the truth of an innuendo. Fry v. Bennett, 5 Sandf. 54; Com. v. Snell-
ing, 15 Pick. 821-^5; Taylor v. Kneeland, 1 Doug. (Mich.) 67. And see
Cooper V. Greely, 1 Denlo, 347. In this case Horace Greely wrote of Fenni-
more Cooper: "He chooses to send none, but a suit for libel instead. So be
it then. Walk in, Mr. Sheriff! There is one comfort to sustain us under
this terrible dispensation. Mr. Cooper will have to bring his action to trial
somewhere. He will not like to bring it to trial in NMnr York, for we are
known here; nor in Otsego, for he is known there." Plaintiff was allowed
to show the true Ubelous meaning of the words by alleging and proving the
innuendo. A remark that, if "A. [plaintiff] had not gone away, we should
issue warrants for him," is susceptible of the meaning, given it by the in-
nuendo, that plaintiff had absconded, and had been guilty of some offense
for which he was liable for arrest, and with that meaning is actionable.
Ayres v. Toulmin, 74 Mich. 44, 41 N. W. 855.
191 Blakeman v. Blakeman, 31 Minn. 396, 18 N. W. 103. And see Edgar v.
McCutchen, 9 Mo. 448; Matts v. Borba (Cal.) 37 Pac. 159 ("valhaca"); Dyer
V. Morris, 4 Mo. 134 ("goose hom," 1. e. whore house); lipprant v. Lipprant,
52 Ind. 273 ("accommodation house"); Emmerson v. Marvel, 55 Ind. 265
("slipped up on the blind side of her"); Miles v. Van Horn, 17 Ind. 245
(screwed). So the German phrase, "It comes not out of the air," may be
shown to mean embezzlement Glatz v. Theln, 47 Minn. 278, 50 N. W. 127.
"Wanted B. B. Z., M. D., to pay a drug bill." Zler v. HoflOin, 33 Minn. G6,
21 N. W. 862. Placard on furniture on sidewalk: "Taken back from W.,
who could not pay for it. Sold at a bargain. Beware of dead beats." Wood-
ling V. Knickerbocker, 31 Minn. 268, 17 N. W. 387.
512 WRONGS AFFECnNO REPUTATION. [Ch. 8
tiff.*** When the words are In themselyes actionable, it is not
necessary to allege the innuendo.* ••
MALICE.
176. In an ordinary action for defamation, spoken wrongs
fully and intentionally, without just cause or ex-
cuse, malice in law^ is inferred; but when, on ac-
count of the cause' of publishing, it is prima fSetcie
excusable, malice in fact must be proved.'^
It is traditional that defamation must be false* •' and mali-
cious.*** But malice here is used not in the common, colloquial
i»2 Price V. Conway, 134 Pa. St. 340, 19 Atl. 087. Words charging plaintiff
with having a venereal disease do not sustain an innuendo that plaintiff kept
a house of iU fame. The defamatory words set forth in a declaration for
slander were: ''She keeps a common open house. She is nothing but a whoro
anyway." It was held that, without any prefatory averments, these words,
taken together, supi)orted an innuendo, that a house of ill fame was meant.
Posnett V. Marble, 02 Vt. 481, 20 Atl. 813; WUcox v. Moon, 63 Vt. 481, 22
Atl. 80; Haines v. Campbell, 74 Md. 158, 21 AU. 702; Jacobs v. Schmaltz, iSSi
IjAW T. 121; Higgins v. Walkem, 17 Can. Sup. Ct. 225. See, also, Randall v.
Evening News Ass'n^79 Mich. 266, 44 N. W. 783.
i»a Sanford v. Rowley, 93 Mich: 119, 52 N. W. 1119. An innuendo charging
that defendant meant, by calling plaintiff a "downright thief," to charge thai
he was guilty of official corruption and oppression, may be disregarded as
surplusage, the words themselves heing actionable, and need not be proved
by plaintiff. Callahan v. Ingram (Mo. Sup.) 26 S. W. 1020. And see Tnrton
V. New York Recorder, 3 Misc. Rep. 314, 22 N. Y. Supp. 766; Cole v. Neu-
stadter, 22 Or. 191, 29 Pac. 550.
i»* Bromago v. Prosser, 4 Barn. & C. 247.
i»6 Falsity, however, is not an essential of the wrong of libel and slander, ac-
curately speaking. **To say that showing the truth of the language published is
a defense, and to say that the language must be false, are not identical proposi-
tions. • ♦ ♦ The plaintiff is not allowed, in the first instance, nor except
to disprove a defense of truth, to give any evidence of the falsity of language
published.*' Townsh. Sland. & L. pp. 59, 60, §« 73. 388. And see Stewart v.
I^vell, 2 Starkie, Cas. 93; Starkie. Sland. & L, p. 3.
loe There is no magic in the word "malice," so far as pleading is concerned;
any word of similar import is sufficient White v. Nichols, 3 How. 206. Thus,
"falsely and injuriously*' is sufficient. Khig v. Hoot, 4 Wend. 113-136. And
see Weaver v. Hendrick, 30 Mo. 502; Dillard v. Collins, 25 Grat. 343; Opdyko
Ch. 8] MALICE. 613
sense, and means no more than in other branches of the law.**^
**Malice, in its common acceptation, means a wrongful act done in-
tentionally, without just or reasonable cause." *•• Want of actual
intention to yilify is no excuse for a libel.**'
Malice Presumed.
Where the words are in themselves defamatory, and are uttered
without justification, malice is an inference of law.'®® Thus, the
law presumes that a publication charging a person with having
committed a crime is malicious.*®* "It is urged that the motive
V. Weed, 8 Abb. Prac. 223. "Wilfully" and "maliciously" are essentially the
same. Rounds v. Delaware, L. & W. R. Co., 3 Hun, 329, affirmed (February
8, 187C) 64 N. Y. 129; Dexter v. Spear, 4 Mason, 115, Fed. Gas. No. 3,807.
But it would seem tliat "wrongfully" and "injuriously" are not equivalent to
"maliciously." De Medina v. Gi-ove, 10 Jur. 420. But see McPherson v.
Daniels, 10 Bar. & C. 2G3-2GG; Taylor v. Kneeland, 1 Doug. (Mich.) 07.
187 Com. V. York, 9 Mete. (Mass.) 93, 1(M, 105; Gassett v. Gilbert, 6 Gray,
94-97; Abrath v. Northeastern Ry. CJo., L. R. 11 App. Cns. 247, 253, 254;
White V. Duggan, 140 Mass. 18^20, 2 N. E. 110.
10 8 Bayley, J., in Bromage v. Prosser, 4 Barn. & C. 247, at page 253; Bige-
low. Lead. Cas. 117; Chase, Lead. Gas. 128. And see Llndley, J., in Stuart
T. BeU [1891] 2 Q. B. 341-351; Capital & Counties Bank v. Henty, 7 App. Cas.
741-787; Marks v. Baker, 28 Minn. 162-166, 9 N. W. 678. It is proper to in-
struct that the word "malicious" is not to be considered ^ the same sense as
spite or hatred, but as meaning that the person is actuated by improper and
indirect motives, other than the mere purpose of protecting the public health
or vindicating public justice. Blumhardt v. Rohr, 70 Md. 328, 17 Atl. 266.
i»9 Curtis V. Mussey, 6 Gray, 265; Uallam v. Post Pub. Co., 55 Fed. 456;
Smith V. Sun Printing & Pub. Ass'n, 5 C. C. A. 91, 55 Fed. 240; Simmons v.
Holster, 13 Minn. 249 (Gil. 232); Zuckerman v. Sonnenschein, 02 111. 115;
Byrket v. Monohon, 7 Blackf. 83; Pennington v. Meeks, 46 Mo. 217; Mitchell
v. MilhoUand, 106 111. 175; Davis v. Marxhausen (Mich.) 61 N. W. 504; State
V. Clyne, 53 Kan. 8, 35 Pac. 789.
200 White V. NichoUs, 3 How. 266, followed Hetheiington v. Sterry, 28 Kan.
429. And see Com. v. McClure, 11 Phila. 469; Smith v. Smith, 26 Hun, 573-
577; Broughton v. McGrew, 39 Fed. 672; Byam v. Collins, 111 N. Y. 143, 19
N. E. 75.
aoi Pokrok Zakadu Pub. Co. v. Ziskovsky, 42 Neb. 64, 60 N. W. 358; Heyler
v. New York News Co. (Sup.) 24 N. Y. Supp. 499; Colby v. McGee, 48 111.
App. 294. In an action for slander, where the words complained of charge
plaintiff with stealing defendant's goods, the question of whether the charge
was made in good faith and without malice, while defendant was trying to
find the thief, is for the jury. Hupfer v. Rosenfeld (Mass.) 38 N. E. 197.
LAW OP TORTS— 33
514 WRONGS AFFKCTING REPUTATION. [Ch. 8
of many publications which the law decrees libels may be iniioi*ent,
and even laudable, and that without the proof of malice, or w^hat
is equivalent to malice, the mere act of composing or publishing a
libel ought not to be the subject of punishment. This objection
only becomes specious from misapprehension of the term ^malice.'
Malice, to a legal understanding, implies no other than willfulness.
The first inquiry of a civil judicature, if the fact do not speak for
itself as a malum in se, is to find out whether it be willfully com-
mitted. It searches not into the intention or motive, any further
or otherwise than as it is the mark of a voluntary act; and having
found it so, it concerns itself no more with a man's design or prin-
ciple of action, but punishes without scruple what manifestly to
the offender himself was a breach of the command of the legis-
lature. The law collects the intention from the act itself. The act
being in itself unlawful (wrongful), an evil intent is inferi'ed, and
needs no proof by extrinsic evidence. That mischief which a man
does he is supposed to mean, and he is not permitted to put in is-
sue a meaning abstracted from the fact. The crime consists in
publishing a libel. A criminal intention in the writing is no part
of the definition of the crime of libel at common law. 'He who
scatters fire brands, arrows, and death [which, if not an accurate,
is a very intelligent description of a libel] is ea ratione criminal.'
It is not incumbent on the prosecution to prove his intent, and on
his part he shall not be heard to say, ^Vm I not in sport?' To de-
termine, therefore, the guilt of a civil act, and to inflict punish-
ment on the offender, there is no need of knowing his motives.
Human laws require no justification in imposing penalties for an
act prohibited by the magistrate, in its consequences injurious, and
which has indubitable marks of being voluntarily committed." ^^^
In Conroy v. Pittsburg Times,^®' ^Mitchell, J., speaking of a charge
libelous per se, and belonging to the class of qualified privilege,
said: "It may be conceded that it belongs to the class of qualified
privilege. In such cases it is common to say that the plaintiff
must prove express malice. I apprehend, however, that the more
accurate statement of the law is that in such cases there is no
202 Holt, Lib. bk. 1, c. 3, p. 55, quoted In Townsh. Sland. & L. § 92; Dexter
v. Spear, 4 Mason, 115, Fed. C'as. No. 3,867.
203 139 Pa. St. 334, 21 Atl. 15^150.
Cll. 8] MALICE. r)lo
prima facie presumption of malice from publication. There must
be some evidence be^'ond the mere fact of publication, but there is
no requirement as to what the form of the evidence shall be. It
may be intrinsic, from the style and tone of the article. If the com-
munication contains expi-essions which exceed the limit of privi-
lege, such expressions are evidence of malice, and the cast* shall
be given to the jury.'*®* Or it may be extrinsic, as by proof of
actual malice, or that the statement is knowingly false, or that it
was made without probable cause, or in any way that clearly and
I'easonably tends to overcome the prima facie presumption of pro-
tection under the privilege. One of such ways is by the counter
presumption of innocence. Trobable cause that would justify such
publication [charging larceny] would justify a prosecution of the
alleged crime.' ^®* And the reason for it is that the presumption
of innocence cannot be overcome by mere rumor, or idle import, or
careless or insufficient examination set up as probable cause. So,
where the alleged libel charges an indictable offense, the pr(»8ump-
tion of innocence ought and must stand as prima facie evidence of
falsity and want of probable cause, and therefore of malice, even
in cases of a claim of privilege. A brief consideration of two
fundamental principles will be sufficient to sustain this result:
First, the immunity of a privileged communication is an excep-
tion. The general rule, is that nothing but proof of its truth is a
defense for a libel. That it was privileged because public, on a
proper occasion, from a proper motive, and upon probable cause, is
the excepted case, and he who relies on an exception must prove
all the facts necessary to bring himself within it. Second, unless^
his action is founded on a negative averment, a plaintiff is not,
in general, obliged to prove a negative; and the inconveniences of
a departure from this rule are many. For example, in cases like
the present, how is a plaintiff to proceed? Actual or special
malice can rarely be proven. In fact it rarely exists. Libelous
articles in newspapers seldom spring from any hostility to the indi-
vidual, but usually from a ruthless disregard of personal feelings
and private rights, in the mad hunt for news and sensiition. The
only chance of redress for the plaintiff, therefore, is, ordinarily, the
204 Neeb v. Hope, 111 Pa. St. 145-154, 2 Atl. 568-572.
20 8 Neeb v. Hope, 111 Pa. St. 145-153, 2 Atl. 5C8-571.
516 WRONGS AFFECTIKO REPl'TATIOX. [Ch. 8
want of probable cause, — ^and how is he to prove this? It was held
in Flitcraft v. Jenks *®* that he could not do it by evidence of good
character and the consequent iuipit>babilitj of his doing the act
charged, and how is he to prove spt*cific facts in the dark, before
the facts relitnl on as probable cause are shown by the defendant?
The natural and logical order of proof is for the defendant to show
the information on which he relied on probable cause, and for the
plaintiff then to meet it in rebuttal. And this is the order that
s(H;ms to be indicated by Brackenridge, J., in Gray v. Pentland.**'
*The plaintiff may, if he chooses, either in the first instance, with a
view to aggravate damages, go on to show express malice, or, after
an attempt by, the defendant to show probable cause, he may rebut
this by pvoot of express malice/ It is true that actions like the
present are closely assimilated to actions for malicious prosecution,
in which the plaintiff must give evidence of want of probable
cause. But the later actions are founded on the want of probable
cause. It is an essential element of the plaintiff's case, while in an
action for libel it is an element not of the plaintiff's case, but of the
defendant's claim of privilege."
Malice Which must he Proved,
Where the occasion of publication is privileged, the onus is on the
plaintiff to prove malice in fact.'®* Thus, where alleged slanderous
words impute to one the crime of adultery, and the defendant avers
that they were privileged because spoken by him in good faith to
members of the family, and as a witness before a church committee,
and that the words are true, and it appears from the evidence that
the truth or falsity of the words was within his personal knowl-
edge, and that they related to matters about -which he could not be
mistaken, he is not liable if the words were true; but, if they were
false, they were not spoken in good faith, and he is liable, not-
withstanding the circumstances under which the words were
spoken.^®® But, "to enable the plaintiff to have the question of
200 3 Whart. 158.
207 2 Serg. & K. 23.
208 strode v. Clement, 19 S. E. 177.
200 Etchison v. Pergeraon, 88 Ga. 020, lo S. E. 680; Pergerson v. Etchison,
Id.; Brett, L. J., in Clark v. Molyueiix, 3 Q. B. Dlv. 237; Jackson v. Hopper-
ton, 12 Wkly. Rep. 913, 10 Law T. (N. S.) 529, 530, per Erie, J.; Taylor v.
Ch. 8] MA LICK. 617
f
malice submitted to the jury,*** it is certainly not necessary that
the evidence should be such as necessarily leads to the conclusion
that malice existed, or that it should be inconsistent with the non-
existence of malice; but it is necessary that the evidence should
raise the probability of malice and be more consistent with its ex-
istence than its norexistence."*^^ Therefore, in an action for slan-
der, where the case is one of qualified privilege, evidence of the
falsity of the charge is admissible on the part of the plaintiff, to
prove malice, though such evidence is not in itself sufficient for
that purpose.^^' Actual or implied malice, or malice in fact and
malice in law, as Mr. Townshend has demonstrated, means, not dif-
ferent kinds of malice, but different kinds of proof.*" The preserva-
tion of the distinction is of doubtful utility. For, "after all, this
implied malice is a mere fiction. It is an antiquated absurdity. The
law is put into a position of self-stultification whenever the judge
tells the jury that they are obliged to imply malice, although the
evidence shows that there is none in fact" ***
Acttjud Malice,
Actual malice, while essential to the plaintifPs cause of action
where question of privilege is involved, is ordinarily to be consid-
ered in connection with, not the right, but the extent of the re-
covery.*** "So a libel may be published without any intention to
harm a man, and yet it would be a libel, because a libel is judged
by its natural consequences. That is what makes the thing libel.
Hawkins, 16 Q. B. 308, 321, per Lord CampbeU; WMght v. Woodgatc, 2
Cromp., M. & R. 573-577. per Parke, B.
210 In an action for Ubel the existence of malice in fact is for the Jury.
Childers v. San Jose Mercury Printing & Publlsliing Co., 105 Cal. 284, 38
Pac. 003. Maule, .T., in SomerviUe v. Hawkins, 10 C. B. 583'h588, 15 Jur. 450.
2iiAtwill V. Mackintosh, 120 Mass. 177. Of. Jenoure v. Delmege [181)11
App. Cas. 73 (where the court did not aUow the verdict to stand).
212 Laing v. Nelson, 40 Neb. 252, 58 N. W. H4G.
213 Townsh. Sland. & L. 102, note. And see Selden, J., In Brush v. Prosseiv
11 N. Y. 347-558.
214 27 Am. Law Rev. 777.
216 Malice in fact is the same as actual malice, under Connecticut statute.
Moore v. Stevenson, 27 Conn. 14; Hotchkiss v. Porter, 30 Conn. 414; Wynne
V. Parsons. 57 Conn. 73, 17 Atl. i{(>2. The statement is often made very
broadly that plaintiff need never prove malice as a part of his case. Mans-
518 WRONGS AFKECTIXG REPLTATION. [Ch. 8
If it was done without any actual ill-will, any actual malevolence,
the damages would not be a» much as if it were done through a
mean motive, an actual hatred, personal ill-will, deliberate intent
to maliciously injui-e another man. So the question of malice may
always be taken into consideration in determining the amount of
damages which should be awarded. On the other hand, some
things may be taken into consideration in mitigating damages. If
a party who published a libel actually in good faith, doing what he
thought was right under the circumstances, acting honestly, — and
a libel might be published in that way, — the jury should take that
good faith into consideration in mitigating, lessening, or diminish-
ing the damages that would be awarded, and in some cases they
might consider that such good faith should go far enough to reduce
the damages to a mere nominal sum."*** Hence, evidence as to the
existence **^ or absence ^^^ of evil motive is admissible, under the
nt4d, C. J., In Harffrave v. Le Breton, 4 Burrows, 2423-2425, repeated by
Bay ley, J., in Broiuage v. Prosser, supra. Mr. Townshend, however (Sland.
4b L. G9, 404), calls attention to Wilson v. Stephenson, 2 Price 282, as incon-
sistent. And see Smith v. Ashley, 11 Mete. (Mass.) 367; Liddle v. Hodges, 2
Bosw. 537-{>44; Dolloway v. TurriU, 20 Wend. 383-396; Cooke, Def. c 4;
Lester v. Corley, 45 La. Ann. 1(»06, 3 South, 407.
310 Simons y. Bm-nham (Mich.) 60 N. W. 476-^81. Reckless indifference to
the rights of others is equivalent to the intentional violation of them, and
that for the one, as well as the other; a Jury in a case of libel or other
tort may give punitive or exemplary damages. Morning Journal AB8*n v
Rutherford, 1 U. S. App. 296, 2 C. C. A. 354, 51 Fed. 513; Gott v. Tulslfer,
122 Mass. 235, 2:J0; Warner v. Press Publishing Co., 1,12 N. Y. 181, 30 N.
E. 393; Holmes v. Jones, 121 N. Y. 461, 24 N. E. 701. Thus, where defendant
published an out of town dispatch, which was rendered libelous by an error
in transmission, without having the same repeated to Insure accuracy, puni-
tory damages are jus tilled on the ground of a wanton disregard of the rights
of others, though repeating the dispatch would have involved extra expense
and loss of time. Press Pub. Co. v. McDonald, 11 C. C. A. 155, 65 Fed.
238-245. See, also, Wabash Prhiting <& Pub. Co. v. Crumrine (Ind. Sup.) 21
N. E. 904.
217 Byrd v. Hudson, 113 N. C. 203, 18 S. E. 209; Hlntz v. Graupner, 138 HI.
158, 27 N. E. 935; Post Pub. Co. v. Hallam, 8 C. C. A. 201, 59 Fed. 530; Bom
118 Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020; Lally v. Emery, 70
Hun, 560, 29 N. Y. Supp. 888; Arnott v. Standard Ass'n, 57 Conn. 86, 17 Atl.
36L
Ch. 8] MALICE. 519
general rules of evidence as to relevancy, competency, and the like.*^*
A repetition by a person in a slander suit of a charge laid in the
complaint, though not made in the same, or substantially the same,
words, is yet admissible in evidence for the purpose of showing
V. Rosenow. 84 Wis. 620, 54 N. W. 1089. By the weight of authority, prior
and contemporaneous pubUcations of the same libel, other than that de-
clared on, are competent evidence to show malice, whether such other pub-
lications may themselves be made the basis of recovery in separate suits or
not; and the danger of a double recovery for the same publications is to be
avoided by a caution from the court that damages are to be allowed only for
the article sued on. Van Derveer v. Sutphin, 5 Ohio St. 293; Pearce v. Le-
maitre, 5 Man. & 6. 700; Chamberlin v. Vance, 51 Gal. 75; Shock v. McChes-
ney, 2 Yeates, 473; Gibson v. Cincinnati Enquirer, 2 ITlip. 121, Fed. Gas. No.
5,392; To wash. Sland. & L. i 392; (Idger, Sland. & L. 272; Newell, Def.
331; Larrabee v. Minnesota Tribune Co., 30 N. W. 462, 36 Minn. 141; Casey
V. Hulgan, 118 Ind. 590, 21 N. E. 322; Beneway v. Thorp, 77 Mich. 181, 43
N. W. 863; Wabash Printing & Pub. Co. v. Crumrine (Ind. Sup.) 21 N. E. 90i;
Halsey v. StiUman, 48 111. App. 413; Thlbault v. Sessions, 101 Mich. 279, 59
"N. W. 624 (including refusal to retract) ; Randall v. Evening News Ass'n, 97
Mich. 136, 56 N. W. 361; Ellis v. W^hitehead, 95 Mich. 105. 54 N. W. 752;
McCleneghan v. Reid, 34 Neb. 472, 51 N. W. 1037; Ranson v. McCurley, 140
111. 626, 31 N. E. 119. In New York, other publications of the same or dif-
ferent libels by the defendant are not admitted to prove malice, unless suit
upon them is barred by limitation, or for some other reason. Frazier v. Mc-
Closkey, 60 N. Y. 337. But see Enos v. Enos. 135 N. Y. 609, 32 N. E. 123.
Evidence as to publication subsequent to commencement of suit seems not
to be admissible. Upton v. Hume, 24 Or. 420, 33 Pac. 810; Eccles v. Radam,
75 Hun, 535, 27 N. Y. Supp. 486. As to evidence of intention under statute,
see Wynne v. Parsons, 57 Conn. 73, 17 Atl. 362; Arnott v. Standard Ass*u,
57 Conn. 86, 17 Atl. 361. Evidence that defendant, a priest, after actiou
brought against him, mentioned it to his congregation, and said the suit
was not against him but fell upon the congregation, **and we will see If the
church shall destroy the vermin or if the vermin the church,'' is admissible
to show malice. Morasse v. Brochu, 151 Mass. 567, 25 N. E. 74.
219 lu an action for slander, where the case is one of qualified privilege,
evidence of the falsity of the charge is admissible on the pari of plaintiff
to prove malice, though such evidence is not in itself sufficient for that pur-
pose. Laing v. Nelson, 40 Neb. 252, 58 N. W. 846. In an action against a
rival merchant for libel in attacking plaintiff's credit, a letter written by de-
fendant to plaintiff's creditor, threatening to withdraw his patronage if the
claim was compromised, is admissible to show malice. Simons v. Bumham
(Mich.) 60 N. W. 476. Thus, as to evidence admissible, it was held: In an
actiou for slander, aU the facts and conversation leading up to the slander-
520 WRONGS AFFECTING REPUTATION. [Ch. 8
malice in speaking the words charged.'*** In Gribble v. Pioneer-
Press Company,"^ the defendant, inter alia, called the plaintiff (a
member of the bar) a "half imbecile shyster," and subsequently apol-
ogized for its mistake in not calling him a "wholly imbecile shyster/'
It was held that publications before and after the one complained
of, and even after suit was brought, were admissible to show actual
malice, and thereby to aggravate damage. "The circumstance that
other libels are more or less frequent, or more or less remote, • • •
merely affects the weight and not the admissibility of the evidence.''
Attempted justification may be considered as evidence of actual
malice.^'*
DEFENSES.
176. Defenses to an action for defamation may be —
(a) Statutory, or
(b) Common law.
Statutory Defenses.
Many statutes have been x)assed to alter the rule of the common
law as to the ability of a person uttering a defamation to escape
from liability in tort. The English statute provides that, on apology
and payment into the court of a sum of money by way of amends
for the injury sustained by the defamation in any public news-
ous words are admissible, to show tlie intention of tlie person uttering them,
and how they were understood by the hearers. Kidd v. Ward (Iowa) 59 N.
W. 270. On the other hand: In an action for slander in charging plaintiff
with the larceny of property belonging to defendant, the fact that defend-
ant was tried and acquitted of the offense is not evidence of malice or want
of probable cause. Sibley y. Lay, 44 La. Ann. d3G, 11 South. 581. Knowl-
edge of circumstances on defendant's part may be a condition of malice.
Norton v. Livingston, 04 Vt. 473, 24 Atl. 247; Moore v. Thompson, 92 Mich,
498, 52 N. W. 1000. Smith v. Matthews, 9 Misc. Rep. 427, 29 N. Y. Supp.
1058 (no inference of actual malice from neglect to investigate Into the
truth).
220 Enos V. Euos, 135 N. Y. 007, 32 N. E. 123; Ellis v. Whitehead, 95 Mich.
105, 54 N. W. 752. See, also, McCleneghan v. Reid, 34 Neb. 472, 51 N. W.
1037; Ranson v. McCurley, 140 111. 626, 31 N. E. 119.
221 Gribble v. Pioneer Press Co., 34 Minn. 342, 25 N. W. 710, citing cases
at page 344, 34 Minn., and page 710, 25 N. W. Id., 37 Minn. 277, 34 N. W.
30 (on another point). Tindal, J., in Pearson v. Lemaitre, 5 Man. & G. 700-718.
222 Marx V. Press Pub. Co., 134 N. Y. 561, 31 N. E. 918, and cases cited.
Ch. 8] DEFENSES. 521
paper or other periodical publication, the defamer has a full de-
fense,^^* which may be alternative.*^* The apology must be full
and sufficient, printed in suitable type, and conform to the statutory
requirements as to time and place of publication."*^ Express malice
may, however, be shown by the defendant.*'* There is a correspond-
ing act in Canada,**^ and in many of the states of the Union.***
SAME— COMMON-LAW DEFENSES.
177. The common-law defenses peculiar to defamation*^
may operate by way of —
(a) Justification, or
(b) Mitigation.***
178. Defamation may be justified by showing either that
the charge claimed to be defamatory was —
(a) True, or that it was
(b) Privileged.
178. The truth of the charge is a full justification in a civil
action for defamation.
«28 6 & 7 Vict. c. 96, § 2; Chadwlck v. Hereapath, 3 0. B. 88r>; O'Brien v.
Clement, 16 Mees. & W. 150.
224 Hawkesley v. Bradsbaw, 5 Q. B. Div. S02, 49 Taw J. Q. B. 3.S3.
225 Lafone v. Smith, 3 Hurl. & N. 735, 28 Law J. P^xch. 33.
226 Barrett v. Long, 3 H. L. Cas. 395.
227 St. 50 Vict. cc. 22, 23; Ashdown v. Manitoba Free I»i-ess Co., 20 Can.
Sup. Ct. 43; article on "Libel, Act of 1890," 15 Can. Law T. 89.
228 Laws Mich. 1885, p. 354, § 3; Park v. Detroit Free Press Co.. 72 Mich.
560, 40 N. W. 731; Gen. Laws Minn. 1887, c. 191; Gen. T^ws 1880, c. 131;
Allen V. Pioneer Press Co.. 40 Minn. 117, 41 N. W. 936; Clemeutson v. Min-
nesota Tribune Co., 45 Minn. 303. 47 N. W. 781; Holston v. Boyle, 46 Minn.
432, 49 N. W. 203.
229 The conventional defenses have been discussed In chapter IV. Accord
and satisfaction Is a good defense to an action for defamation, as in other
torts. I^ane v. Applegate, 1 Starkie, 97. Thus, If by agreement mutual
apologies are made, this may be a valid satisfaction of right of action.
Boosey v. Wood, 34 Law J. Exch. 65. Statute of limitations: A slander once
barred cannot be revived by an admission that It had foimally been made,
and malice cannot be attached to such admission. Vickers y. Stoneman, 73
2»o Etcliison V. Pergerson, 88 Ga. 620, 15 S. E. 680.
522 WRONGS AFFECTING REPUTATION. [Ch. 8
Our law allows a man to speak the truth, though maliciously,*^*
without showing good motive or justifiable end. This is the com-
mon-law rule generally, but not universally, recognized by constitu-
tions and enforced by statutes. Hence, the truth uf a charge claim-
ed to be defamatory is a full justification to a civil action.'*^ The
justification must be as broad as the charge. Thus proof of em-
bezzlement is not broad enough to sustain the charge of em^zzle-
inent and attempt to blow open a safe and destroy the books.**'
Mich. 419, 41 N. W. 405. I^eave and llc«i8e: In Howland v. George F. Blake
Manurg Co., 150 Mass. 543, 31 N. E. 656. Knowlton, J., said: "If the de-
fendant is guilty of no wrong against the plaintiff except a wrong invited
and procured by the plaintiff for the purpose of making it the foundation of
an action, it would be most unjust that the procurer of a wrongful act should
be permitted to profit by it" And see 1 Ames, Lead. Cas. 422, citing King
V. Waring, 5 Esp. 13; Rogers v. Clifton, 3 Bos. & P. 587-592; Weatherston v.
Hawkins, 1 Term R. 110-112; Smith v. Wood, 3 Camp. 323; Duke v. Harmer,
14 Q. B. 185; Palmer v. Hummerston, 1 Cab. & E. 36; Gordon v. Spencer, 2
Blackf. 286; Smith v, Sutton, 13 Mo. 129. And see Coles v. Thompson (Tex.
Oiv. App.) 27 S. W. 46.
231 Bigelow, Lead. Cas. 112, note h; Thorley v. Lord Kerrey, 4 Taunt 355.
233 Castle V. Houston, 19 Kan. 417, Chase, Lead. Cas. 132; Donaghue t.
Oaffy, 53 Conn. 43, 2 Atl. 397; Press Co. v. Stewart, 119 Pa. St 584, 14 Atl. 51;
Uoyce V. Maloney,57 Vt325; Wilson v. Marks, 18 Fla.322; Perry v. Porter, 124
Mass. 338; Drake v. State, 53 N. J. Law. 23, 20 Atl. 747; Heilman v. Shauklin.
<k) Ind. 424; Hathorn v. Congress Spring Co., 44 Hun, 608; Root v. King. 7 Cow.
(J13, 4 Wend. 113; Ellis v. Buzzell. 00 Me. 209; MeClaugherty v. Cooper, 39 W. Va.
313, 19 S. E. 415 (under Code, c. 158. § 4). And see Chattin v. Lynch, 83 Va. 106. 1
S. E. 803; Atlanta Journal y. Mayson, 92 Ga. 640, 18 S. E. 1010; Bank y. Bowdre.
92 Tenn. 723, 23 S. W. 131. In Mississippi, under Code 1880. § 1004, truth
operates only in mitigation of damages. Mclean y. Waring (Miss.) 13 South.
236. In Michigan, notice that Justitication will be a defence must be glyen.
Wheaton v. Beecher, 79 Mich. 443, 44 N. W. 927. As to Massachusetts statute,
see Brown y. Massachusetts Title Ins. Co., 151 Mass. 127, 23 N. E. 733. Mr.
Townshend (Sland. & L. 310) has shown that, at common law, truth was re-
garded as a plea in mitigation only, until 1735; that the phrase, *'The greater
the truth, the greater the libel." has been attributed to both Lord Mansfield
and Lord EUenborough; and that the Justice and expediency of the present
general rule that truth may be an absolute defense is neither uniyersally nor
generally conceded. See note 2, p. 308, and Delaware Ins. Co. y. Croasdale,
<) Houst 181. Miller y. Brooks. 65 Hun, 624, 20 N. Y. Supp. 359.
23 s Thompson y. Pioneer Press Co., 37 Minn. 285, 33 N. W. 856. A charge of
Incest and pi'egnancy is not Justified by proof of incest only. Edwards y.
Oh. 8] DEFENSES. 523
The fact that a teacher was of a grossly immoral character, and in
the habit of ha\ing liquor in the school, is no defense to an action
for publishing an article in the newspaper charging such teacher
with taking indecent liberties with his scholars.^^* A general
charge cannot be justified by the truth of the charge in a single in-
stance.''** But it is not necessary to prove the truth of all details of
the charge. It is enough if defendant show the matter complained
of to be substantially true, — that is, to prove the gist of the state-
ment,— provided the details which are not justified produce no dif-
ferent effect on the mind of the person to whom publication is made
than the actual truth would do.^'* Thus, to charge that certain
Kansas City Times, 32 Fed. 813. Cf. McNaugbton v. Quay (Mich.) GO N. W.
474 (where the charge was of perjury and larceny, and the perjury was justi-
fied, and a denial made as to the charge of larceny). And, generally, see
Weaver v. Lloyd, 2 Barn. & C. 678; Bissell v. Cornell. 24 Wend. 354; Torrey
V. Field, 10 Vt. 353; Burford v. Wible, 32 Pa. St. 95; Wilson v. Beighler, 4
Iowa. 427.
2S4iiiibault V. Sessions (Mich.) 59 N. W. 624; McClaugherty v. Cooper. 39
W. Va. 313, 19 S. E. 415 (to justify charge of perjury); Becherer v. Stock, 49
111. App. 270. To justify a newspaper article charging a person witli both
''frequent*' acts of adultery and a specific act of the same nature, not only
sufficient acts must be proven to justify the general charge, but proof of the
si>ecific act must be given also. Miller v. McDonald (Ind. Sup.) 39 N. E.
159. Lamphere v. Clark (Sup.) 29 N. Y. Supp. 107 (charge of lewdness);
Feely v. Jones, Id. 446 (abuse of funds by an attorney); Bishop v. Latimer
(1861) 4 Law T. 775 (badly treated client). Cf. Fitch v. Lemmon, 27 U. C.
Q. B. 273; Clement v. I^wis (1822) 3 Brod. & B. 297, 7 Moore, 200 (shameful
conduct of an attorney).
2««Clarkson v. Lawson (1829) 6 Bing. 266-587 (charge that a proctor had been
suspended three times not supported by proof of a single suspension) ; Wakloy
V. Cooke (1819) 19 Law J. Exch. 91, 4 Exch. 510 (that plaintiff had been once re-
covered against for a libel does not justify defendant in calling him a 'libelous
journalist"). And see Swann v. Rary, 3 Blackf. 298; Sheehey v. Cokley, 43
Iowa, 183; Burford v. Wible, 32 Pa. St. 95; Ricket v. Stanley, 6 Blackf. 169;
StUwell V. Barter, 19 Wend. 485. But see Alcorn v. Hooker, 7 Blackf. 58.
236 Willmett V. Harmer (1839) 8 Car. & P. «)5; Alexander v. Northeastern
Ry. Co., 34 Law J. Q. B. 152. Cf. England v. Bourke, 3 Esp. 80; Eraser. Torts,
90. And see Palmer v. Adams, 137 Ind. 72, 36 N. E. 695 (kidnapping a girl);
Nettles V Somervell, 6 Tex. Civ. App. 627, 25 S. W. 658 (publishing plaintifC as
a dead beat); Pidler v. Delavan, 20 Wend. 57 (charging plaintiff as a cheat
and a swindle).
524 WRONGS AFFECTING REPUTATION. [Ch. 8
persons are "a gang who live by card-sharking" is justified by show-
ing that on two different occasions they had cheated at cards.^*^
On the other hand, a clergyman was charged with saying that **the
blood of Christ has nothing more to do with our salvation than the
blood of a hog/' The proof was that he had denied the divinity of
Christ and the doctrine of the atonement, and had asserted the
perfection of Christ as a man, and the absence of greater virtue in his
blood than in that of any other creature. It was held that the charge
was not justified."'** In the application of this reasonable princi-
ple there has not been entire consistency in the cases. Thus, it was
properly held that to charge a woman with being a whore was not
sustained by proof of her reputation as a thief."'" But it was also
held that the charge was not sustained by proof of bad reputation
for chastity."*® And courts have gone to great length in holding, for
example, that the charge of a crime can be justified only by showing
identity of the truth with the charge, both as to the object of the
crime as well as to the wrong its^lf."*^ As a matter of fact it would
seem that courts have pushed to an extreme the proposition that
^'there can be no such thing as a half-way justification." *** Hence,
257 Rex y. Labouchere (1880) 14 Cox, Gr. Gas. 419. A publication cbar^in«r
that a minister, of strong persuasion, and other means not so reputable, had
induced a parishioner, who was believed to be of unsound mind, to turn over
to him a large sum for the benefit of a certain coUege, and that there was
general 'indignation over this attempt to rob this woman of her property," it
was held that the pleading of justification on the ground of truth need not
state facts which would constitute an attempt to commit robbery. Walford v.
Herald Printing & Pub. Co., 133 Ind. 372, 32 N. E. 929.
258 Skinner v. Grant,' 12 Vt 456.
230 Smith V. Buchecker, 4 Rawle, 205. And see Nelson v. Musgrave, 10
Mo. (MS.
240 Suuman v. Brewln, 52 Ind. 140. ^
241 Charge of criminal intercourse with one person is not justified by proof
of intercourse with another person. Buckner v. Spaulding, 127 Ind. 229, 26 N,
E. 792; Walters v. Smoot, 11 I red. 315. As to the place of intercourse, see
Smithers v. Harrison, 1 Ld. Raym. 727; Sharpe v. Stephenson, 12 Ired. 348, The
i-ule is the same as to. stealing. Gardner v. Self, 15 Mo. 480. Charge of horse
stealing is not justified by proof of hog stealing. Dillard v. Collins, 25 Grat.
343. So proof of a crime against nature witli a cow is not justification of
charge of such crime with a mare. Andrews v. Vanduzer, 11 Johns. 38;
Downs V. Hawley, 112 Mass. 237; Shigley v. Snyder, 45 Ind. 541.
242 Fero V. Uuscoe. 4 N. Y. 102.
Ch. 8] DEKKX.SES. 525
it is a rule of pleading justification that "you should use the very
words alleged to have been uttered." -*^ "Truth should be specially
pleaded.-' -** General belief in truth of charge is no justification.^*;''
In an action for libel, where the defendant has pleaded the truth of
the publication in justification, and does not request an instruction
that the jury may consider whether the justification was pleaded in
good faith, and not wantonly, it is not error for the court to charge
that they may consider the plea of justification as evidence of mal-
ice to enhance the damages.^**
180, Privilege of a communication may be either —
(a) Absolute, when attaching to the position a person
holds, or to the document in which it is contained,
and such privilege cannot be avoided, even by proof
of actual malice; or
(b) Qualified (or conditional), when made with reference
to public interest, or in discharge of a duty^ and
disattaches when malice is shown. ^
24 3 ResteU v. Steward, 1 CUarl. Gases at Chambers, 89; Dennis v. Johnson,
47 Minn. 5(J, 49 X. W. 383; Sawyer v. Bennett, 00 Hun, 020, 20 N. Y. Siipp. 835;
As to proof, see Roberts v. Lamb, 93 Tenn. 343, 27 S. W. 008.
2*4 J' Anson v. Stuart, 1 Term R. 748.
2*G Mason v. Mason, 4 N. H. 110. Underwood v. Parks, 2 Strange, 1200;
Manning v. Clement, 7 Bing. 302-307; Van Ankin v. Westfall, 14 Johns. 233;
Blsbey v. Shaw, 12 N. Y. 07; Sheahan v. Collins, 20 111. 320; Kay v. Fredrlgal,
3 N. Y. 221; Updegrove v. Ziimmerman, 13 Pa. St. 019; Bodwell v. Swan,
3 Pick. 370. Where the publication charges plaintiff with a crime, the
presumption of his innocence is conclusive if defendant does not plead the
truth of the charge. Pokrok Zakadu Pub. Co. v. Ziskovsky, 42 Neb. 04, 00
N. W. 3o8. It is no defense in a suit for libel that the party sued had
reasonable grounds to beliere that the charge made was true. Such facts,
if shown, would not relieve the publisher from liability. Shattuc v. Mc-
Arthur, 25 Fed. 133.
246 Marx V. Press Pub. Co. (Sup.) 12 N. Y. Supp. 102, affirmed 134 N. Y. 501,
31 N. E. 918; Lowe v. Herald Co., 0 Utah, 175, 21 Pac. 991.
24 7 Sheanv. Torts, 31. "There are two differences between qualified and
absolute privilege.'' In the case of the latter, it is the occasion which is
privileged. When once the nature of the occasion is shown, it follows as a
necessary inference that every communication on that occasion is protectetl.
But in the case of the former the defendant does not prove privilege until
52(5 WKONGS AFFECTING KEPUTATION. £Ch. S
AhsoluUe Privilege — Judicial.
Upon principles of public policy **■ already considered,*** "neither
party,*^® witness,*"^ counsel,^"*^ judge,*** or jury*** can be put to
Ife has shown how the occasion was used. Secondly, even after a case of
«iuallfled privilege lias been established, it may be met by the plaintiff prov-
ing in reply actual malice on part of defendant. Clerk & L. Torts, 450. And
see Lynam v. Gowing, 0 Ir. C. L, 25i).
2*8 Royal Aquarium, etc., Soc. v. Parkinson [1802] 1 Q. B. 431,442, per Lord
Ksher, M. R. And see Fry, L. S., in Munster v. Lamb, 11 Q. B. Div., at pages
r)88 and 007.
240 Ante, p. 121, "Exemption of Judicial Officers from Liability in Tort"
2 60 Party,— see Hibbard, Spencer, Bartlett & Ck). v. Ryan, 46 111. App. 313;
Randall v. Hamilton. 45 La. Ann. 1184, 14 South. 73; Youree v. Hamilton,
45 La. Ann. 1191, 14 South. 77; Lilley v. Roney, 61 L. J. Q. B. 727. But see
Jones V. Forehand, 80 Ga. 520. 16 S. E. 262; Allen v. Crofoot. 2 Wend. 513;
Bartlett v. Christhilf, 69 Md. 219; I^e v. White, 4 Sneed (Tenn.) Ill; Badgley
V. Hedges, 2 N. J. Law, 217. But an agent of a corporation, which is a party
to the suit, Is not within the privilege. NIssen v. Cramer, 104 X. C. 574, lO
S. E. 676.
231 Seaman v. Nethercllft, 2 C. P. Div. 53 (here an expert witness, when
asked about a previous case in which he had given professional evidence,
added, gratuitously, '^though the Jury decided the will was genuine, I be-
lieve it w^as a forgery"). Padmore v. Lawrence, 11 Adol. & E. 380; Kennedy v»
Hilliard, 10 Ir. G. L. 195; Wright v. Lothrop, 149 Mass. 385, 21 N. B. »©,
collecting cases at page 390, 149 Mass., and page 963, 21 N. E.; Zuckerman y.
Sonncnscheln, 62 111. 115 (translating defamatory words for an attorney).
And see Terry v. Fellows, 21 La. Ann. 375; McLaughlin v. Charles, 60 Hun,
239, 14 N. Y. Supp. 608; Hunckel v. VonelflP, 69 Md. 179, 14 Atl. 500; Runge v.
Franklin, 72 Tex. 585, 10 S. W. 721; Hutchinson v. Lewis, 75 lud. 55; Liles
V. Gaster, 42 Ohio St. 631; Cooper v. Phlpps, 24 Or. 357, 33 Pac. 985; Bald-
win V. Hutchinson, 8 Ind. App. 454, 35 N. K. 711.
2 B2 Counsel, Munster v. Lamb, 11 Q. B. Dlv. 588; Hodgson v. Scarlett, 1
Bam. & Aid. 244 (Inter alia, "this Is one of the most profligate things I ever
knew done by a professional man. Mr. Hodgson is a fraudulent and wicked
attorney"); Hollis v. Meux, 60 Cal. 625, 11 Pac. 248; McLaughlin v. Cowley,
127 Mass. 316; Id., 131 Mass. 70. And see Maulsby v. Relfsnider. 69 Md.
143, 14 Atl. 505; Oliver v. Pate,' 43 Ind. 132 (mal. pros.); Vogel v. Gruaz,
110 U. S. 311, 4 Sup. Ct. 12. As to limitation as to relevancy, see Marsh
V. Ellsworth, 50 N. Y. 309; Hoar v. Wood, 3 Mete. 193.
2 63 Judge, Scott V. Stansfield, L. R. 3 Exch. 220. "Otherwise no man but
2 54 Juror, Rex v. Skinner [1772] LofPt, 55; Dunham v. Powers, 42 Vt 1;
grand juror, Little v. Pomeroy, 7 Ir. C. L. 50; Rector v. Smith, 11 Iowa, 302.
Ch. 8] DEFENSES. 527
answer civilly or criminally for words spoken in office." *"' The
privilege extends to courts of all kinds,'** except where the matter i»
coram non judice.**^^ It includes all pleadings,'*^' affidavits,'" and
other legal papers '•^ involved in judicial proceedings, as well as all
communications between members of the bar and their clients. The
a befirgrar or a fool would be a Judge." Lord Robertson, In Miller v. Hope,
2 Shaw, App. Cas. 134. And, generally, see Yates v. Lansing, 5 Johns. 282;
Cooke V. Bangs, 31 Fed. 640; Lange v. Benedict, 73 N. Y. 12; Johnston v.
Moorman, 80 Va. 131; Vaughn v. Congdon, 5G Vt 111; Randall v. Brlgham,
7 Wall. 535. As to distinction between classes of judges, ante, c. 122. Ayles-
worth V. St. John, 25 Hun, 15G (Justice of peace); Evarts v. Kiehl, 102 N.
Y. 290, 6 X. E. 502: Floyd v. Barker [1617] 12 Kep. 24 (Judge of superior
court); Houlden v. Smith, 19 L. J. Q. B. 70 (Judge of Inferior court); Royal
Aquarium & S. & AV. Garden Soc. v, Parkinson I1SJ>2] 1 Q. B. 431.
2 6S Per I^rd Mansfield, in Rex v. Skinner, LofTt, 56. And see Kidder v.
Parkhurst. 3 Allen. SaS; Munster v. Lamb, 23 Am. Law Reg. 12; Kelly, C.
B., in Dawklus y. Lord Rokeby, L. R. 8 Q. B. 255, 263; Beardsley, J., in
(Gilbert v. People, 1 Denio, 41-43; Gray, C. J., in Hoar v. Wood, 3 Mete. 193;
nenderson v. Broomhead, 4 Hurl. & N. 569; Kendlllon v. Maltby, 2 Mood^r
& R. 438; Moore v. Ames, 2 Caines, 170; 1 Hawk. P. C. c. 73, § 8; Lake v.
King, 1 Saund. 131; 6 Bac. Abr. 348.
2Be Dawklns v. Prince, 1 Q. B. Div. 499 (military courts); Dawkina v.
Uokeby. 23 W. R. 93 (military courts); Scott v. Stansfleld, L. R. 3 Exch.
220 (county courts); Thomas v. Churton, 2 Best & S. 475 (coroners); Ryalls
V. Leader, L. R. 1 Exch. 296 (bankruptcy registrar); Rdyal, etc., Soc. v. Park-
inson [1892] 1 Q. B. 431 (London courts); Goffln v. Donnelly. 6 Q. B. Div.
307 (to effect that English houses of parliament are for certain purposes
courts of Judicature); Kane v. Mulvany, 2 Ir. C. L. [1868 J 402. And see
Rector v. Smith, 11 Iowa, 302 (grand Juror).
2BT Ante, p. 123; Paris v. Levy, 9 C. B. (N. S.) 342; Lewis v. Levy, El., BL
& El. 537, 555.
2 08 Ruolis V. Backer, 6 Helsk. 395 (petition); Runge v. Franklin, 72 Tex.
585, 10 S. W. 721; Gardmal v. Mc Williams, 43 La. Ann. 454, 9 South. 106 (peti-
tion); Well v. Israel, 42 La. Ann. 955, 8 South. 826 (answer); and, generally,
see Wilson v. Sullivan, 81 Ga. 238, 7 S. E. 274; Bartlett v. Chrlsthilf, 69 Md.
219, 14 Atl. 518.
2B9 Lllley V. Roney [1892] 61 L. J. Q. B. 727; Murphy v. Nelson, 94 Mich.
554, 54 N. W. 282.
2«o Revls V. Smith, 18 C. B. 126; Wyatt v. Buell, 47 Cal. 624; Hawk v.
Evans, 76 Iowa, 593, 598, 41 N. W. 368; Henderson v. Broomhead, 4 Hurl.
& N. 569. But cf. Hart v. Baxter, 47 Mich. 198, 10 N. W. 198; Bank v.
Strong, 1 App. Cas. 307. Generally, accusations In the course of Judicial
proceedings are privileged, if made to the proper tribunal, though other-
528 WRONGS AFFECTING REPUTATION. [Ch. 8
privilege avails, although the words written or spoken were written
or spoken without any justification or excuse, and from persouiil
ill-will and anger against the person defamed.*'* *^o one is per-
mitted to allege that what was rightly done in a judicial proceed-
ing was done with malice." *•* "This privilege, however, is not a
license which protects every slanderous publication or statenit^nt
made in course of judicial proceedings. It extends only to such
matters as are relevant or material to the litigation; or, at least, it
does not protect slanderous publication, clearly irrelevant and im-
pertinent, voluntarily made, and which the party making it could
not reasonably have supposed to be relevant." "'* So, while a wit-
ness may even volunteer a statement with impunity,*** this is not
true of what he may have said after leaving, or before entering, the
box, nor, it would appear, of malicious and irrelevant interjections
of defamatory matter while testifying.*'" On this principle, a judge
wise Ubelous. Pedley v. Morris, 61 L. J. Q. B. 21; LiUey v. Roney, 61 Lu
J. Q. B. 727.
261 Per Lopes, J., in Royal Aquarium & S. & W. Garden Soc. v. Parkinson
[1892] 1 Q. B. 431-451.
28 2 HoUis V. Meiix, 60 Cal. 625, 11 Pae. 248; Warner t. Paine, 2 Sandf. 195,
201; Suydam v. Moffat, 1 Snndf. 4.38-4(52; Garr v. Selden, 4 N. Y. 91-^94.
See, liowever, Parker. J., in Hill v. Miles, 9 N. H. 14.
»«» Andrews, J., in Moore v. Manufacturers' Nat Bank» 123 N. Y. 420-423,
2:» N. E. 1048, citing Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22
Wend. 410; Gilbert v. People, 1 Denio, 41; Randall v. HamUton, 45 La- Ann.
1184, 14 South. 73; Rice v. Coolidge, 121 Mass. 393; Mcljaughlin v. Cowley,
127 Mass. 316; Thorn v. Blanchard, 5 Johns. 508; Gi*OYer, J., in Marsh v.
Ellsworth, 50 N. Y. 309-313. And see White v. Carroll, 42 N. Y. 161; HoUls
V. Meux, 09 Cal. 625, 11 Pac. 248; Larkln v. Noonan, 19 Wis. 93; Calkins
Y. Summer, 13 Wis. 215; Shaddeu v. McElwee. 86 Tenn. 146, 5 S. W. 602
Jones V. Forehand, 89 Ga. 52, 16 S. E. 262; Baraes v. MoCrate, 32 Me. 442
Hyde v. McCabe, 100 Mo. 412, 13 S. W. 875; Spaids v. Barrett. 57 111. 289
Smith V. Howard, 28 Iowa, 51; Stewart v. Hall. 83 Ky. 375; Hodgson v.
Scarlett, 1 Bam. & Aid. 232; Moore v. Manufacturers* Nat. Bank, 51 Hun,
472, 4 N. Y. Supp. 378.
20* Seaman v. Netherclift, 1 C. P. Div. 540.
268 Trotman v. Dunn [1815] 4 Camp. 211. But see Coleridge, J., in Seaman
V. Netherclift, 1 C. P. Dlv. 540, 541. Marsh v. Ellsworth, 50 N. Y. 309, and
cases on page 310. This view Mr. Townshend combats with great force of
reasoning and with a strong array of authorities. His contrary conclusion
has been approved (Hunckel v. Vonelff, 69 Md. 179, 14 Atl. .')U0), and pro-
Ch. 8] DEFENSES. 529
may be liable far words spoken out of ofBce.*®* This rule accords
with the analogy of the general exemptions recognized by law.*"^
Same — Legislative.
The exemption of the state for liability for torts *•* logically leads
to the absolute privilege of legislators to speak freely in the per-
formance and within the limits of their legislative functions.***
Where, however, the privilege is exceeded, as where defamatory
matter is published to the outside world, liability attaches.^^* And
statements made by a person not under oath before a legislative
committee may have only a conditional privilege.*^ ^
Same — Official Ormmunicaiifms,
In order that laws may be best executed, there are many com-
munications which must pass between the officials of the govern-
ment and other persons. The same reasoning as to public policy
which exempts from general liability for torts, and from special
liability for defamation, gralits absolute privilege to such matter.*^ ^
Thus, it is a duty of every citizen to give to his government any in-
nounccd plausible, but unsound (Bliadden v. McElwee, 86 Tenn. 146, 5 S.
W. 602).
26 • Paris V. Levy [18G1] 9 O. B. (N. S.) S42,
««7 Ante, c. 2.
ses Ante, p. 114.
269 Ex parte Wason, K R. 4 Q. B. 573; Bradlaugh v. Gorsett, 12 Q. B. Div.
271-283; Coffin v. Coffin, 4 Mass. 1. And see Townsh. Sland. & L. §{ 217-219.
«To Stockdale v. Hansard, 7 Car. & P. 731; Wason v. Walter, L. R. 4 Q. B.
73. A statement made by a meml)er of the city councU, during a session
thereof, in reference to the official conduct of the superintendent of 8ti*eet8,
that he is a "downright thief," is not privileged, if at the time there was no
proceeding before the council as to the latter's official conduct. Callahan v.
Ingram, 122 Mo. 355, 26 S. W. 1020.
271 Wright V. Lothrop, 149 Mass. 385, 21 N. B. 963.
«7a In Harrison v. Bush (1855) 5 El. & Bl. 344, defendant, an elector, wrote
to Lord Palmerston that a local magistrate had been encouraging sedition. It
was held that the communication, having been made with the best intention,
was privileged, and that the privUege availed as a good defense. Dawkins
V. Lord Paulet, L. R. 5 Q. B. 94; Cooke v. Wildes, 5 Bl. & Bl. 328-340; Sutton
V. Johnstone, 1 Term R. 493. But see Beatson v. Skene, 5 Hurl. & N. 838; Hart
V. Gumpach, L. R. 4 P. C. 439; Grant v. Secretary, 2 C. P. Div. 445. However,
statements in an affidavit presented to a superintendent of schools to prevent
granting teacher's license to plaintiflC have only a qualified privilege. Wiemaj
V. Mabee, 45 Mich. 484, 8 N. W. 71.
LAW OF TORTS— 84
530 WRONGS AFFECTING BEPUTATION. [Ch. 8
formation he may have as to the commission of an offense against
its laws. Hence, if a citizen consults a state attorney as to whether
facts stated eonstittite a crime, he may claim a double privilege, that
subsisting between the bar and the advised and that between the
general government and the community.'^* On the same principle,
words concerning a city attorney that 'Tie is unfit to hold the office
of city attorney; his opinion is too easily warped for money con-
siderations," spoken by the mayor to the city council, which has
power to remove the attorney, are privileged.'^*
Qiudijied Privilege.
Any communication is privileged when made bona fide about some-
thing in which (1) the speaker has an interest or duty; (2) the hearer
has a corresponding interest or duty; and (3) the statement is
made in protection of that interest or in the performance of that
duty.^" They must be uttered in the honest belief that they are
ti'ue.^^* Every one owes it as a duty»to his fellow man to state
273 Vogel V. Gniaz, 110 U. S. 311, 4 Sup. Ct. 12; Worthlngton v. Scribner, 109
Mass. 487; Dawkins v. Rokeby, 8 Q. B. 255; Harrison v. Bush (1855) 5 El. &
Bl. 344 (where It was contended that the memorial complained of was ad-
dressed to wrong official). And see Blagg v. Sturt, 10 Q. B. 899; Pearce v.
Brower, 72 Ga. 243; Gray v. Pentland, 2 Serg. & R. 23, 4 Serg. & R. 420;
Rainbow v. Benson, 71 Iowa, 301, 32 N. W. 352; Wieman v. Mabee, 45 Mich.
481, 8 N. W. 71; Greenwood v. Cobbey, 26 Neb. 449, 42 N. W. 413; Van Wyck
V. A8j)inwall, 17 N. Y. 190; Kent v. Bongartz, 15 R. I. 72, 22 Atl. 1023.
2 74 Greenwood v. Cobbey, 26 Neb. 449, 42 N. W. 413.
2 • ^ Prof. Ames (1 Cases on Torts) has an-anged the cases with ri»fi»renco
to (a) communications in the common interest of maker and receiver, or in
interest of maker aione, and (b) communications in interest of recipient. The
arrangement by topics followed, while less logical and scientific, would seem
to hQ i»j-actically more convenient Shearw. Torts, 31, and, see, Toogood v.
SpjTing, 1 Cromp., M. & R. 181.
2T6 White V. Nicliolls, 3 How. 266-286; Alabama & V. Ry. Co. v. Brooks.
CO Miss. 168, 13 South. 847; Marks v. Baker, 28 Minn. 162-164, 9 N. W. 678;
Quinn v. Scott, 22 Minn. 456; Klinck v. Colby, 46 N. Y. 427; Hamilton v.
Eno, 81 N. Y. 116; Fowles v. Bowen, 30 N. Y. 20. Ixypes, J., in Pullman
V. Hill [1891] 1 Q. B. 524-^530, and Stuart v. Bell [1801] 2 Q. B. Ml, 353;
Blackburn, J., in Davies v. Snead (1870) L. R. 5 Q. B. 608-611; Shearw. Torts,
31; Briggs v. Gairett, 111 Pa. St. 401, 2 Atl. 513; King v. Patterson, 49 N.
J. Law, 417, 9 Atl. 705; Proctor v. Webster, 16 Q. B. Div. 112; Jenoiu*e v.
Delmoge [1891] App. Cas. 73; Macdougall v. Knight, 17 Q. B. Div. 636; Har-
rison V. Bush, 5 El. & Bl. 344.
Ch 8] DEFENSES. ^'ll
what he knows about a person, when inquiry is made, and every-
thing pertinent to the subject of the inquiry which subsequently
passes between the parties is also privileged.^^^ The privilege may
extend even to volunteered information.*^* But the standard of
privilege is the standard of law, not of the individual. It depends
not on what the individual may have supposed to be his interest or
duty, but upon what a judge decides his interest or duty in fact to
have been.*^'
The effect of the privileged conmiunication of this qualified de-
scription is to cast on the plaintiff the burden of showing malice on
the defendant's part.*'* This is ordinarily for the jury. If one ex-
ceeds the qualified privilege, its protection to him ceases, and the
ordinary rules of liability apply. This, also, is usually a question
of fact for the jury.'** But the court determines whnt is and
what is not privileged.*** And judges who have had, from time to
time, to deal with questions as to whether the occasion justified the
speaking or writing defamatory matter, have all felt great difficulty
in defining what kind of social or moral duty, or what amount of
interest, will afford a justification.***
Same — Fair Report.
Fair reports, as distinguished from comment, are privileged, but
the law is not always without doubt either as to whether the privi-
277 Fraser, Torts, 103, citing Grove, J., In Robshaw v. Smdth (1878) 38 Law
T. (N. S.) 423, 424, and Beatson v. Skene (1860) 29 Law J. Exch. 430.
278 SundeiUn v. Bradstreet, 46 N. Y. 188-191; Waller v. Loch (1880) 7 Q.
B. Dlv. 619, at page 621 (per Jessel, M. R.). But see Coltman, .T., In Goxhead
V. Richards, 2 Man., G. & S. 568-596; Littledale, J., In I'atUson v. Jones, 8
Barn.'& C. 580.
5*7 0 Clerk & L. Torts, 455, citing Byles, J., in Whlteley v. Adams, 15 C. B.
(N. S.) :iO!^412. But see Jessel, M. R., in Waller v. Loch, 7 Q. B. Dlv.
619-621; Laughton v. Bishop of Sodor, L. R. 4 P. C. 495-504.
280 strode v. Clement, 90 Va. 653, 19 S. E. 177.
«8i Hill V. Durham House Drainage Co., 79 Hun, 335, 29 N. Y. Supp. 427;
Neil V. Fords, 72 Hun, 12, 25 N. Y. Supp. 406; Strode v. Clement, 90 Va. 553,
19 S. E. 177. See, also, Mitchell v. Bradstreet Co., 110 Mo. 226, 22 S. W. 358,
724.
282 Ritchie V. Sexton, 64 LawT. (N. S.) 210. See, also. Strode v. Clement, 90
Va. 553, 19 S. E. 177.
283 Erie, J., in Whlteley v. Adams, 15 C. B. (N. S.) 392-414.
">o2 WKONGS AFFECTING REPUTATION. [Ch. 8
lege be absolute or qualified, and as to what kind of report is with-
in the privilege. The general opinion would seem to be that the
privilege of fair report is qualified, not absolute.*** However, by
statute, parliamentary papers are absolutely protective.**' And the
absolute privilege allowed to parliamentary speeches **• is also ex-
tended to faithful reports of them.**^
Same — Reports of Judicial Proceedings,
"A fair account of what takes place in a court of justice is privi-
leged. The reason is that the balance of public benefit from pub-
licity is great. It is of great consequence that the public should
know what takes place in court, and the proceedings are under the
control of the judges. The inconvenience, therefore, arising from
the chance of injury to private character, is infinitesimally small as
compared with the convenience of publicity." **• While this general
principle is thus fully recognized, the courts are not in harmony
as to what proceedings are within the rule. It is finally decided,
it seems, that the privilege extends to ex parte statements made in
open court,*** — certainly where the matter is finally dealt with.**®
The tendency, indeed, has been not to extend the privilege to pre-
liminary proceedings, because of the "tendency to pervert the public
mind and to disturb the courts of justice." ***
But a fair report of a judicial proceeding, at which no witnesses
284 Townsh. Sland. & L. ^6; Pol. Torts, 231; Saunders v. Baxter, 6 Heisk.
2 85 St. 3 Vict. c. 9, p. 99. Cf. Code Civ. Proc. N. Y. § 1907. And see Salis-
bury V. Union & Advertiser Co., 45 Hun, 120.
286 Stockdale v. Hansard, 7 Car. & P. 731.
287 Wason V. Walter, L. R. 4 Q. B. 73.
2 88 Parmiter v. Coupland, G Mees. & W. 105-lOS; Johns v. Press Pub. Co.
(Super. N. Y.) 19 N. Y. Supp. 3; Bissell v. Press Pub. Co., 62 Hun, 551, 17
N. Y. Supp. 393. And see Randall v. Hamilton, 45 La. Ann. 1184, 14 South. 73.
2 89 McBee v. Fulton, 47 Md. 403; SaKsbury v. Union & Advertiser Co.,
45 Hun, 120; UseU v. Hales, 3 C. P. Div. 319; Cui-iy v. Walter, 1 Bos. &
P. 525; Lewis v. Levy, El., Bl. & El. 537, 27 Law J. Q. B. 282 (cf. Duncan
V. Thwaites, 3 Bam. & C. 55r)); Stanley v. Webb, 4 Sandf. 21.
200 Lopes, J., in UseU v. Hales, 3 C. P. Div. 31^-329.
201 Lord EUenborough, in Ivlng v. Fisher, 2 Camp. 563-570. And see Charl-
ton V. Watton, 6 Car. & P. 385. Lord Hardwicke, in Baker v. Hart, 2 Atk.
488, 4S9; Daw v. Eley, L. R. 7 Eq. 49. Therefore, the publication by news-
papers of pleadings or other proceedings in civil cases before trial has been
Ch. 8] DEFENSES. o33
are sworn, and which does not result in a final decision, but leads
ft
to a further inquiry, has been held to be privileged.*** At the other
extreme, the publication of a completed public record (as the pub-
lication of the entry of a judgment) is within the privilege.* •* The
privilege does not attach where the publication is made the vehicle
for the diffusion of immoral, blasphemous, or disgusting state-
ments.*** Again, if the account published is fajse or highly colored,
or the reporter has added comments, allegations, and opinions of his
own, reflecting upon the character or condition of others, then the
privilege does not apply.***
Same-^Reports of PMic Meetings.
The report of public meetings has been held not to be within this
privilege.*** Other authorities, however, have taken the opposite
view. Thus, in Davison v. Duncan,**^ it was held that the conduct of
held not privileged. Park v. Detroit Free Press Co., 72 Mich. 500, 40 N. W.
731.
2»a Kimber v. Press Ass'n [1893] 1 Q. B. 65.
s»3 Searles v. Scarlett [1892] 2 Q. B. 56, discussiu^r Williams v. Smith, 22
Q. B. Div. 134; McNaUy v. Oldham, 16 Ir. G. L. 298; MacdougnU v. Knight,
17 Q. B. Div. 636; Ckwgrave v. The Trade Auxiliary CJo., 8 Ir. C. L. 349; Jones
V. MoGovern, 1 Ir. C. L. 681.
a»* Steele v. Brannan, L. R. 7 C. P. 261 (obscene matter). And see Rex v.
Carllle, 3 Barn. &, Aid. 167 (publication of Paine's Age of Reason as a pai't
of a report of a title in which that book had been read to the Jury); Maule,
J., in Hoare v. Silverlock, 9 C. B. 20-22; 1 Starl&ie, Sland. &, L. 263.
«•» Gk)dshalk v. Metzgar (Pa. Sup.) 17 Atl. 215. Thus, the publication of
an account of the rendition of a Judgment against an hotel keeper, under
the heading "Hotel Proprietor Embarrassed," is not privileged. Hayes v.
Press C!o., 127 Pa. St. 642, 18 Atl. 331; Boogher v. Knapp, 97 Mo. 122, 11 S.
W. 45; Salisbury v. Union &, Advertiser Co., 45 Hun, 120; McAllister v. De-
troit Free Press O)., 76 Michi 338, 43 N. W. 431. Ball, Torts & Cont. 119;
Thomas v. Croswell, 7 Johns. 264; McGregor' v. Tbwaites, 3 Barn. & C. 24;
Stanley v. Webb, 4 Sandf. 21; EdsaU v. Brooks. 17 Abb. Prac. 221; Hunt v.
Algar, 6 Car. & P. 245.
2»e Davison v. Duncan, 7 El. & BL 229; Lewis v. Few, 5 Johns. 1; Hearne
V. Stowell, 12 Adol. & B. 719; Popham v. I»ickburn, 7 Hurl. & N. 891, 31 Law
J. Exch. 133 (vestry meeting); Purcell v. Sowler, 2 C. P. Div. 215 (meeting of
poor-law guardians). Cf. Boehmer v. Deti'oit Free Press Co., 94 Mich. 7, 53 N.
W. 822.
«B7 Davis V. Duncan, L. R. 9 C. P. 306. And cf. Charlton v. Watton, 6 Car.
& P. 385. And see Viele v. Gray, 10 Abb. Prac. 1; Smith v. Higgins, 82 Mass.
0-34 WUONGS AFFECTING REPUTATION. [Ch. 8
persons at an election meeting might be made the subject of a fair
and bona fide discussion by a writer in a public newspaper, and that
unfavorable comments made upon such conduct in course of such
discussion were privileged. However, a true and correct narrative
of a quasi judicial meeting (as of a medical society, which expelled
the plaintiff) is privileged."'
Same — Fair Comment and Oriticisin — Books.
No action lies if the defendant can prove that the words com-
plained of are a fair and bona fide comment on a matter of public
interest^'® The courts recognize the right of men to criticise
matters In public papers or books In which others may be gener-
ally interested. "One writer, in exposing the follies and errors
of another, may make use of ridicule, however poignant • • •
If the reputation or pecuniary interests of the person ridiculed
suffer, it is damnum absque injuria. Where is the liberty of the
press, if an action can be maintained on such principles? • ♦ •
Who would have bought the works of Sir Robert Pilmer, 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
]))iilosopher, who was laboring to enlighten and ameliorate man-
kind?""^
Same — Public Men.
That the character and capacity of public men is of general in-
terest to the community of which the parties to a communication
are members is sufficient to confer the privilege. "The modern
251; Bennett v. Barry. 8 Law T. (N. S.) 857; George v. Goddard, 2 Fost A
P. G89; Parsons v. Surgey, 4 Foet. & P. 247.
208 Barrows v. Bell. 7 Gmy, 301; Allbutt v. General CouncU of Medical
Education & Registmtion, 23 Q. B. Dlv. 400. Cf. Halght v. CJomell, 15 Ck)nn.
74; Pierce v. Ellis, 6 Ir. C. L. 55.
20 9 Fraser, Torts, 90. Crompton, J., in CampbeU v. Spottiswoode, 3 Best
& S. 769.
«oo Lord EUenborough, In Sir John Carr v. Hood (1808) 1 Camp. 355, note,
with reference to a book by plaintiff entitled "A Stranger in Ireland,** al-
leged to have been libeled by defendant by a book entitled "My Pocket Book,
or Hints for a Ryghte Merrie and Conceited Tour." And see WlUes, J., In
Henwood v. Harrison, L. R. 7 C. P. 606-610; Crane v. Waters, 10 Fed.
619; Snyder v. Fulton, 34 Md. 128; O'Conror v. SiU, GO Mich. 175, 27 N. W.
13; Press Co. v. Stewart, 119 Pa. St. 584, 14 Atl. 51.
Ch. 8] DEFENSES. 535
doctrine, as shown by the cases, » • ♦ appears to be that the
public has a right to discuss, in good faith, the public conduct and
qualifications of a public man (such as a judge, an ambassador, etc.)
with more freedom than they can take with a private matter, or
with the private conduct of any one. In such discussions they are
not held to prove the exact truth of their statements and the sound-
ness of their inferences, provided they are not actuated by express
malice, and there is reasonable grounds for their statements or
inferences, all of which is for the jury." '"^ Therefore, it was held
that the character of the manager of a railroad is open to public
discussion and within the rule of privileged communications, when
his plans affect many interests besides those of the stockholders
of the road."®" A fortiori, comment on the public conduct of a
public man may be privileged. Thus, to charge a treasurer with
embezzlement of public funds is privileged.'®* There is, however,
a strong inclination on the part of the courts to modify and limit
the application of this doctrine, and they have been liberal ini
recognizing and construing exceptions to it The mere publication
of news is not privileged.*®* And the cases have gone to great
length in holding that in the publication of news, or in criticising
men and things, a newspaper has no privilege or immunity not pos-
sessed by private individuals.*®" Therefore, to imitate a candi-
801 Generally, as to criticism and fair comment, see Am. Law Reg. June,
July, and Ausrust, 1801. 30 Am. Law Reg. 517. Lowell, C. J., in Crane v.
Waters, 10 Fed. 611>-G21; Kelly v. Sherlock, L. R. 1 Q. B. 686; Kelly v. Tin-
ling, Id. 690; Morrison v. Belcher, 3 Fost. & F. 614; Henwood v. Harrison,
L. R. 7 C. P. 606; Davis v. Duncan, L. R. 9 C. P. 396; Gott v. Pulsifer, 122
Mass. 235. And see Jackson v. Pittsburgh Times, 152 Pa. St. 406, 25 Atl. 613.
802 Crane v. Waters, 10 Fed. 639.
808 Marks v. Baker, 28 Minn. 162, 9 N. W. 678; Id., Ames, Lead. Cas. 512.
But see Aldrich v. Press Printing Co., 9 Minn. 133 (Gil. .123); Briggs v. Gar-
rett, 111 Pa. St. 404, 2 Atl. 513. And see Express Co. v. Copeland, 64 Tex.
354.
304 Mallory v. Pioneer Press Co., 34 Minn. 521, 26 N. W. 904; Barnes y.
Campbell, 59 N. H. 128.
806 **it is not denied that the right goes to the extent of free and full com-
ment and criticism on the official conduct of a public officer, and there are
some cases which maintain the doctrine as broadly as claimed. These cases
declare that one who offers his services to the public as an officer thereby
surrenders his private character to the public, and is deemed to consent to
'>iO WRi.Nos AFFECrUCG BfPrTATIOX. [Ch- S
date's amiwiiiprlr grom handwriting, ~I don't prapoee to go into de-
bate on tariff difference on wool and qninine and other things:
raiiiie I hain't bailt that war," is not pririleged.'** Fair com-
nif'nt or criticism, however, is to be carefnllj distinguiahed from at-
tacks on personal character,**^ or nntme statements of fact.***
any fmpatation, bowerer false and defajnatory. If made in good faith. \re
do not think the doctrine either soond or wholesome. In our opinion, a per-
Hon who enters npon a public office, or becomes a csndidate for (me, no
more sorreuderB to the public his priTate character than be^^aes his private
vrojterty. Remedy by due course of law for injory to each is secured by the
same coruttitutional guaranty, and the one is no less inviolate than the other.
To hold otljen^'ise would, in our judgment, drive reputable men ftom public
posit ion« and fill their i^laces with others having no regard for their reputa-
tion, and til UK defeat the purpose of the rule contended for, and overturn the
reaflon uimiu which it is sought to sustain it." Williams, J., in Post Pub. Co.
v. Moloney, 50 Ohio St. 71, 33 N. E. 921-021$, collecting cases. Smart t.
Ulanchard, 42 N. H. 137; Sheckell v. Jackson, 10 Cush. 25. It is defamatory
to write of a ph3'8iciaD*8 '^culpable negligence." Pratt v. Pioneer Press Co.,
3f> Minn. 41, 14 N. W. <52. yor would it be otherwise if physician were city
health officer. I'oster v. Scripps, 39 Mich. 376. The secretary of a cemetery
association organized under incorporation law is not a public officer, in soch
Ki'use as to enable the publisher of a newspaper to claim that an article pub-
lished concerning him, and charging him with embezzling the funds of soch
cemetery association, is a privileged communication, and thus comp^ such
secretary, in an action for libel, to prove express malice. Wilson v. Fitch, 41
Cal. 303, followed in Pokrok Zakadu Pub. Co. v. Ziskovsky, 42 Neb. G4, 00 N.
W. 358. See Taft, J., hi Post Pub. Co. v. Hallam, 8 C. C. A. 201, 59 Fed. 530-
540.
9^9 Belknap v. Ball, 83 Mich. 583, 47 N. W. 074.
307 Lord Tenterden, C. J., in McLeod v. Wakley, 3 Car. & P. 311-313;
Sir John Carr v. Ilood, 1 Camp. 355, note; Parmiter v. Coupland, 6 Meea. &
W. 108; Campbell. V. Spottiswoode, 3 Best &, S. 709 (charging disseminator of
religious truth among the heathen with imposture et sim.). And see Crane
V. Waters. 10 Fed. 019; Hamilton v. Eno, 81 N. Y. 116; Post Pub. Co. v.
Moloney. 50 Ohio St. 71, 33 N. E. 921; Barr v. Moore, 87 Pa. St. 385; Kinyon
V. Palmer, 18 Iowa, 377; Eviston v. Cramer, 57 Wis. 570, 15 N. W. 7G0;
Smith V. Burrus, 100 Mo. 94, 16 S. W. 881; Hay v. Reid, 85 Mich. 29G, 48
N. AV. 507; Cooper v. Stone, 24 Wend, 434; Reade v. Sweetzer, 0 Abb. Prac.
(N. S.) 9, note.
80 8 Davis V. Sbepstone, 11 App. Cas. 187 (where a report containing false
charges of injurious specific acts was published). And see Gott v. Pietsefer,
122 Mass. 235 (Cardiff giant); Walker v. Hawley, 56 Conn. 559, 10 Atl. 674.
Ch. 8] DEFENSES. 537
Neither of these is privileged, and the jury determines what is and
what is not "fair" criticism."*
In Davis v. Shepstone '^^ the plaintiff, a resident commissioner
in Zululandy was charged with having committed an unprovoked
and reprehensible assault upon certain Zulu chiefs. It was con-
tended by the defendant that this was a fair criticism on public
men, that therefore there could be recovery only upon proof of
express malice. The lord chancellor's statement of the law, gener^
ally approved,*** was as follows:
"There is no doubt that the public acts of a public man may law-
fully be made the subj€<it of fair comment or criticism, not only by
»•» Bowen, L. J., in Merivale v. Carson (1887) 20 Q. B. Div. 275 ("the whip
hand"). In this case the reasoning of Grompton, J., in Campbell v. Spotti»-
woode is preferred to that of Wmis, J., in Henwood v. Harrison, L. R. T
C. P. 606, as being practical rather than academical. Right of comment oii
public matter denied, Latimer v. Western Morning News Ck)., 25 Law T.
(N. S.) 44; Hogan v. Sntton, 16 Wkly. Rep. 127; Wilson v. Fitch, 41 Cal. Sm.
sio 11 App. Cas. 187. And see Campbell v. Spottiswoode, 3 Fost. & F. 421,
432 (affirmed 3 Best & S. 769), and Popham v. Plckburn, 7 Hurl. & N. 891.
808.
sii Burt V. Advertiser Newspaper Co., 154 Mass. 238-242, 28 N. E. 1;
Hallam v. Post Pub. Co., 55 Fed. 456, affirmed 8 C. C. A. 201, 59 Fed. 530, 541,
to the effect that false aUegations of fact, charging a candidate for <^ce
with disgraceful conduct, are not privileged; and good faith and probable
cause constitute no defense. Other American cases approving the same rule
are Smith v. Burrus, 106 Mo. 94, 101, 16 S. W. 881; Wheaton v. Beecher. 6&
Mich. 307, 33 N. W. 503; Bronson v. Bruce, 59 Mich. 467, 26 N. W. 671; Brewer
V. Weakley, 2 Overt 99; Sweeney v. Baker, 13 W. Va. 183; Hamilton v. Elno,
81 N. y. 120; Rearick v. W^ilcox, 81 lU. 77; Negley v. FaiTOW, 60 Md. 15S»
176; Jones v. Townseud, 21 Fla. 431, 451; Banner Pub. Co. v. State, 1€»
Lea. 176; Post Pub. Co. v. Moloney, 50 Ohio St. 71, 33 N. E. 921; Soely v.
Blair, Wright (Ohio) 358; Wilson v. Fitch, 41 Cal. 363-383; Edwards v. So-
ciety, 99 Cal. 431, 34 Pac. 128; State v. Schmitt, 49 N. J. Law, 571), 586^ »
Atl. 774; Evlston v. Cramer, 57 Wis. 570, 15 N. W. 760. It has, however,
been held not libelous to say, "I am sorry that the representative from this
district had a change of heart. Sometimes a change of heai*t comes from the
pocket." Sillars v. Collier, 151 Mass. 50, 23 N. B. 723. But cf. Burt T.
Advertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1. Gen^nlly, as to
criticism of public men, 13 Law Annual Rev. And see Negley v. Farrow,
CO Md. 158; Eviston v. Cramer, 57 Wis. 570, 15 N. W. 760; Scrlpps v. Foster,
41 Mich. 742-746, 3 N. W. 216; Upton v. Hume, 24 Or. 420, 33 Pac. 810;.
Mattice v. Wilcox, 71 Hun, 485, 24 N. Y. Supp. 1060; Post Pub. Co. v.
538 WRONGS AFFECTING REPUTATION. £Ch. 8
the press, but by all members of the public. But the distinctioB
cannot be too clearly borne in Inind between comment or criticism
and allegations of fact, such as that disgraceful acts have been
committed or discreditable language used« It is one thing to com-
inont upon or criticise, even with severity,, the acknowledged or ap-
proved acts of a public man, and quite another to assert that he has
been guilty of particular acts of misconduct. In the present case,
the appellants, in the passages which were complained of as libel-
ous, charged the respondent (as now appears, without foundatioD)
with having been guilty of specific acts of misconduct, and then
proceeded, on the assumption that the charges were true, to com-
ment upon his proceedings, in language in the highest degree of-
fensive and injurious. Not only so, but they themselves vouched
for the statements by asserting that, though some doubt had been
thrown upon the truth of the sto^, the closest investigation would
prove it to be correct. In their lordships' opinion there is no war-
rant for the doctrine that defamatory matter thus published is re-
garded by the law as the subject of any privilege."
Same — Public Duty,
The ripfht of school officers to give the character of a schoolteacher
would seem to be a qualified, not an absolute, privilege; therefore,
they are not liable for falsely charging a teacher with cruelty, in-
competency, and neglect in the exercise of duty, if they act in good
faith,'^^ but criminal liability may attach on proof of actual mal-
ice.'^* Testimony given before an investigating committee of a
board of aldermen has a qualified privilege, even although not in
response to questions asked, provided it be pertinent to the investi-
gation and apparently within the committee's power.*^* But a
Moloney, 50 Ohio St 71, 33 N. E. 921; Jackson v. Pittsburg Times, 152 Pa.
St 40G, 25 Ati. 613; Buckstaff v. Viall, 84 Wis. 129, 54 N. W. Ill,
SI 2 The act of the trustees of a school in collecting evidence in respect to
the conduct of the principal, and sending it to the board of education, which
alone had power to remove her, is privileged, as being within the line of
their public duty; and sending a copy of such charges to the principal, in
order that she might answer the charges against her, is not a publication.
•Galligan v. Kelly (Sup.) 31 N. Y. Supp. 561; Branaman v. Hinkle, 137 Ind.
496, 37 N. E. 546. But see Galligan v. Kelly (Sup.) 31 N. Y. Supp. 561.
«i8 Vallery v. State. 42 Neb. 123, 60 N. W. 347.
>i4 Blakeslee v. Carroll, 64 Conn. 223, 29 Atl. 473. And see Rowland y.
Ch. 8] DEFENSES. O'^l^
statement made by a member of the city council, during a session
thereof, in reference to the official conduct of the superintendent of
streets, that he is a "downright thief," is not privileged, if at the
time there was no proceeding before the council as to the latter's
official conduct."^*^ So, while communication to a governor con-
cerning proper legislation, to influence his action, is prima facie priv-
ileged, it is not in fact privileged if it contains defamatory matter
which is necessarily published to others,*^* — as where a pamphlet
is generally circulated.'^^ Again, "for the sake of public justice,
charges and communications which would otherwise be slanderous
are protected if made bona fide in the prosecution of an inquiry into
a suspected crime." •"
Same — Religious and Fraiemal Ch'ganiztUimxn.
The law encourages the various members of a religious organiza-
tion, who are unable to dwell together in unity, peace, and concord,
to try to settle their differences without public scandal. Hence
communications in trials before church tribunals are privileged.
Therefore, the congregation may prefer charges against the clergy-
man in accordance with the usage and discipline of the church, with-
out civil responsibility.* *• And one church member may, before
such tribunal, publicly charge that another had committed adultery
with the plaintiff, who did not belong to that church.'** The same
privilege is extended to secret societies.**^ A vicar's counsel with
his curate is privileged.*** But a clergyman has no peculiar privi-
Flood« 160 Mass. 509, 3G N. E. 482, distingruisbing, inter alia, Spill v. Maule,
L. R. 4 Exch. 232-237; Chatneld v. Connerford, 4 Post. & F. 1008.
816 Callaham v. Ingram, 122 Mo. 355, 26 S. W. 1020.
8i« Coffin V. Coffin, 4 Mass. 1; Rex v. Creevey, 1 Maule & S. 273.
»i7 Woods V. Wlman, 122 N. Y. 445, 25 N. E. 919.
818 Coleridge, J., In Padmore v. Lawrence, 11 Adol. & E. 380. And see
Jobnson v. Evans, 3 Esp. 32; Fowler v. Homer, 3 Camp. 294; .Tones t.
Thomas, 34 Wkly. Rep. 104; Dale v. Hanis, 109 Mass. 193. Cf. Eames v.
Whittaker, 123 Mass. 342; Cristman v. Cristman, 36 IlL App. 5l>7; Harper
V. Harper, 10 Bush, 447.
81 » Piper V. Woolman, 43 Neb. 280, 61 N. W. 688.
820 Etchlson V. Pergerson, 88 Ga. 620, 15 S. E. 680.
821 Shurtleff v. Stevens, 51 Vt 501; Kirkpatiick v. Eagle Lodge, 20 Kan.
884.
822 Clark V. Molyneux, 3 Q. B. Dlv. 237; James v. Boston. 2 Car. & K. 4-8.
And see Joannes v. Bennett, 5 Allen, 169; Kerbs v. Oliver, 12 Gray, 239.
o40 WRONGS AFFECTING BKPUTATION. [Ch. 8
lege for publishing a slander in a pastoral letter, however grave bis
sense of duty, or sincere his desire to improve the morals of the
.community.''* In an action for slander in imputing unchastity to
a woman, the fact that the slander was spoken to one who bad
formerly been pastor of a church to which both plaintiff and defend-
ant belonged, and in response to inquiries by such former pastor,
did fiot make the speaking a privileged communication.*'*
Same — Commercinl Oommunica timis.
Pair reports of business standing, made up on special request,***
even if a copy of a libelous article be sent, are not actionable.***
But if defamatory matter be inserted in the reports of a commercial
agency, not in good faith, nor with the honest purpose of truly in-
forming the agency of the person's financial standing, but maliciously
and to subserve the defendant's own private purposes, then the com-
82S Gilpin V. Fowler, 9 Exch. 615. But see Laughton v. Bishop, L. R. 4
P. C. 495, holding that a bishop's charge, containing strictures on the conduct
of a layman who had attacked his character, was privileged.
»24 Carpenter v. WiUey. 65 Vt 168. 26 Atl. 48a
828 King V. Patterson (1887) 49 N. J. Law. 417, 9 Atl. 705 (see dissenting
opinions); Locke v. Bradstreet Co., 22 Fed. 771; Pollasky v. Minchener, 81
Mich. 280, 46 N. W. 5; Trnssell v. Scarlett, 18 Fed. 214. A creditor may law-
fully inquifre into the circumstances of his debtor, and thp person inquired
of may answer freely; and, if his communication be for the honest purpose
of giving the desired information, no action wlU lie. Van Horn v. Van Horn,
56 N. J. Law, 318, 28 Atl. 669. And, generally, see Lowry v. Vedder, 40 Minn.
475, 42 N. W. 542; Montgomei-y v. Knox, 23 Fla. 595, 3 South. 211; Lynch v.
I'^ebiger, 39 La. Ann. 336, 1 South. 690. Lemay v. Chamberlain. 10 Ont 638;
Todd V. Dun, 12 Ont. 791; King v. Patterson, 49 N. J. Law, 417, 9 Atl. 705. As
to answer to inquiries, see Story v. Challard, 8 Car. & P. 234; Kine v. Sewell.
3 Mees. & W. 297; Rude v. Nass, 79 Wis. 321, 48 N. W. 555; Posnett v. Mar-
ble, 02 Vt. 481, 20 Atl. 813; Rowland v. George F. Blake Manuf'g Co., 156
Mass. 543, 31 N. E. 656; Zuckerman v. Sonnenschein, 62 111. 115; Van Horn
V. Van Horn, 56 N. J. Law, 318, 28 AtL 669; Brown v. Vannaman, 85 Wis.
451, 55 N. W. 183.
326 Rowland v. George F. Blake Manuf'g Co., 156 Mass. 543, 31 N. B. 656.
And see cases collected in 30 Cent. Law J., at pages 13 and 14. Taylor v.
Hawkins, 16 Q. B. 308; Amann v. Damm, 8 C. B. (N. S.) 597; Force v. War-
ren, 15 C. B. (N. S.) 806; Missouri Ry. Co. v. Behee, 2 Tex. Civ. App. 107,
21 S. W. 384; John W. Lovell Co. v. Houghton, 116 N. Y. 520, 22 N. B. 1066;
Bacon v. Michigan Cent. R. Co., 66 Mich. 166, 33 N. W. 181; Beeler v. Jack-
son, 64 Md. 589, 2 Atl. 916.
Ch. 8] DEFENSES. 641
munication is not privileged."^ Indeed, if the report be false and
injurioas, it is not privileged even if the sheet be sent to subscribers
in a cipher, and understood by them only,'** but without reference
to such special interest as the plaintiff as a creditor would have.**'
The privilege of business communications is, however, broader than
as to mere commercial reports. It extends to cases where there is
a personal interest in the subject-matter to which the communica-
tion relates.*'® It applies where there is imminent danger to the
subject-mjitter to which it relates, for example, to a ship, its cargo,
or company."^ And, generally, business communications between
strangers, although volunteered, are privileged if made in perform-
ance of a '*duty which may be supposed to exist to give advice faith-
fully to those who are in want of it, * * * for the sake of the
general convenience of business, though with some disregai'd of the
equally important rule of morality that a man should not spoak ill,
falsely, of his neighbor." "*
Same — Privilege of Advertisers,
So, with a defamatory advertisement, inserted in a newspaper, if
necessary to protect the advertiser's interest, or if advertising was
the only way to accomplish his lawful object, the circumstances ex-
»2T Lowry v. Vedder, 40 Minn. 475, 42 N. W. 542; Marks v. Baker, 28 Minn.
162-165, 9 N. W. 678; Zier v. HofBin, 33 Minn. 66, 21 N. W. 862.
8«« SunderUn v. Bradetreet, 46 N. Y. 188.
«2» MltcheU V. Bradstreet Co., 116 Mo. 226, 22 S. W. 358; Goldstein v. Fobs,
2 Car. & P. 252; Com. v. Stacey, 1 Lieg. Gaz. Rep. (Pa.) 114; Pollasky v. Mlch-
ener, 81 Mich. 280, 46 N. \V. 5; Taylor v. Church, 8 N. Y. 452; Ormsby v. Doug-
lass, 37 N. Y. 477; Sunderlin v. Bradstreet, 46 N. Y. 188; King v. Patter-
son, 49 N. J. Law, 417, 9 Atl. 705; Bradstreet v. GUI, 72 Tex. 115, 9 8. W. 753;
Johnson v. Bradsti-eet, 77 Ga, 172; Erber v. Dun, 12 Fed. 526; TrusseU v. Scar-
lett, 18 Fed. 214; Locke v. Bradstreet Co., 22 Fed. 771; Kingsbury v. Bradstreet
Co., 116 N. Y. 217, 22 N. B. 365; State v. Lonsdale, 48 Wis. 348, 4 N. W. 390.
But such an agency may publish, generally, the entiy of a Judgment against
defendant without liability, unless it be a false statement and special dam^
age result. Woodruff v. Bradstreet Co., 116 N. Y. 217, 22 N. E. 365.
ssoBIackham v. Pugh, 2 C. B. 611 (Auction; charge of bankruptcy); Pig.
Torts, 323.
•81 Pig. Torts, 324.
"2 Coltman, J., in Coxhead v. Richards, 2 C. B. 569-601; Beatson v.
Skene, 5 Hurl. & N. 838; Bigelow, I^ead. Gas. 174. A letter, written by one
of two rival milk sellers, advising a shipper to sell no more milk to the other
542 WRONGS AFFECTING REPUTATION. [Ch. 8
cuse the extensive publication. But, if it was not necessary to
advertise at all, or if the advertiser's object could have been accom-
plished equally well by an advertisement which did not contain the
defamatory words, then the extent given to the announcement i»
evidence of malice, to go to the jury.*'* Therefore, in an advertise-
ment notifying the public not to harbor or trust the advertiser's wife
on his account, defamatory words in regard to the wife are not
privileged.'"*
Same — Communicationa in Ooiifidential Relations* •
A qualified privilege is recognized where the relation between
two persons is intimate, socially or professionally,""* or arises
from family connections. Thus, a letter from a son-in-law to his
mother-in-law, volunteering advice respecting her proposed mar
riage, and containing imputations on her future husband, is priN-i-
leged.""* Such communications are "fairly warranted by any
reasonable occasion or exigency, and when honestly made the3'
are protected for the common convenience and welfare of society,
and the law has not restricted the right to make them within any
narrow compass." ""^ Thus, a surety may speak unreservedly of
UDless he had surety for his goods, was not a privileged communlcatioT!.
Brown v. Vannainan, 85 Wis. 451, 55 N. W. 183. And see Lawless v. Anglo-
Egyptian Cotton Co., L. R. 4 Q. B. 2«2; Shurtleff v. Stevens, 51 Vt 501; Tll-
llnghast V. McLeod, 17 R. I. 208, 21 Atl. 345; Klinck v. Colby, 46 N. Y.
427; Shurtieflf v. Parker, 130 Mass. 203. Cf. Cook v. Wildes, 5 El. & Bl. 328,
24 JjHW J. Q. B. 367.
388 Odgers, Sland. & L. §§ 225, 226.
384 Cliamplin, J., in Smith v. Smith, 73 Mich. 445, 41 N. W. 499, 500.
386 As between attorney and client, see Wright v. Woodgate, 2 Cromp., M.
& R. 573; Davis v. Reeves, 5 Ir. C. L. 79.
386 Todd V. Hawkins, 8 Car. & P. 88, 2 Man. & R. 20. So, between brother
and sister, Anon., cited in 2 J. P. Smith (Eng.) 4, and Adams v. Coleridge,
1 Times I-Aw R. 84; charge by mother against son, Cristman v. Cristman,
36 111. App. 567; by one friend to another, as a doctor, Dixon v. Smith, 29
Law J. Exch. 125; or tradesman. Storey v. Challands, 8 Car. & P. 234.
337 Cockayne v. Hodgkisson, 5 Car. & P. 543, 545, (gamekeeper selling
game), by Parke, J. And see M'Dougall v. Claridge, 1 Camp. 266 (concerning
solicitor's personal character). Statements made before a meeting of stock-
holders of a railroad company by a member, attributing drunkenness and
incapacity to one of the officials, are privileged if made in good faith; and
the fact that attorneys of the company, not stockholders, were present at
Ch. 8] DEFENSES. 648
the man for whom he is responsible.*'** And, generally, communi-
cations in course of business between employer and employd are
privileged."* However, defamatory words are not privileged be-
cause uttered in strictest confidence bv one friend to another, nor
because they are uttered after the most urgent solicitation, nor be-
cause the interview in which they are uttered is obtained at the
instance of the person slandered. Therefore, a libelous letter to an
unmarried woman concerning her suitor, written by mutual friends
to prevent the marriage, is" not privileged by previous friendship,
nor by a general request made years before.'**
Sdvie — Masi*er ob to Serrnnt,
The right of the master with reference to a servant who has
been in his employ is generally recognized as privileged.**^ He
may refuse to give a letter of recommendation to his servant when
the latter leaves without committing slander,*** and may give his
servant a character to his neighbor, who afterwards employed him,
which would be otherwise actionable.*** He may warn other
the meeting, at the request of the president and some of the stockholders,
does not take away the privilege. Broughton v. McGrew, 39 Fed. 672. And
see Rude v. Nass, 79 Wis. 321, 48 N. W. 555.
88 8 Dunman v. Bigg, 1 Camp. 209, note. So, to father of person alleged to
have been slandered. Hlx v. State (Tex. Cr. App.) 20 S. W. 550; Davis v.
State (Tex. Cr. App.) 22 S. W. 979. To father of child, by Earle, C. J., in
Whiteley v. Adams, 33 Law J. C. P. 89-95. Cf. Masters v. Burgess, :i
"Hmes Law R. 96; Fowler v. Homer, 3 Camp. 294.
38» Hill V. Durham House Drainage Co. (Sup.) 29 N. Y. Supp. 427. A cir-
cular letter, sent out by a firm, stating that a certain person is no longer in
their employ, and advising their "friends and customers*' to give him no
recognition on their account, is not a privileged communication. Warner v.
Clark, 45 La. Ann. 803, 13 South. 203; Daniel v. New York News Pub. Co.,
07 Hun, 649, 21 N. Y. Supp. 802; Wright v. Woodgate, 2 Cromp., M. & R.
573; Scaill v. Dixon, 4 Fost & F. 250; Stace v. Griffith, L. R. 2 P. C. 420;
Hume V. Marshall, 42 J. P. 136; Washburn v. Cooke, 3 Denio, 110; Lewis
V. Chapman, 16 N. Y. 369.
840 Byam v. Collins, 111 N. Y. 143, 19 N. E. 75; Coles v. Thompson (Tex.
Civ. App.) 27 S. W. 46. Cf. Whiteley v. Adams, 15 C. B. (N. S.) 310, 311, 392.
841 White V. Nicholls, 3 How. 206; Pattison v. Jones, 8 Barn. & C. 578;
Child V. Atfleck, 9 Barn. & C. 403.
342 CarroU v. Bird, 3 Esp. 201.
848 Fresh v. Cutter, 73 Md. 87, 20 AtL 774. Cf. Over v. Schiffling, 102 Ind.
191, 28 N. E. 91.
544 WRONGS AFFKCTIKG REPUTATION. [Ch. 8
seryants against one whom he has discharged, and may explain
his reasons.^** And he may publish with impunity a blacklist of
discharged employes, in absence of contrary statute*'*' The privi-
lege allows the master to tell the truth, and even to volunteer what
he honestly believes to be the truth, without malice and in the
honest belief that he is discharging a duty to his neighbor, provid-
ed his neighbor has employed or is about to employ such serrant,***
The right of the master, it is insisted, arises, not out of the rela-
tionship of master and servant, but out of the general right to com-
municate one's belief, in a bona fide desire to protect one's own or
another's right.'*'
181. On the same principle that whatever tends to prove
malice in defamation aggravates the wrong, and en-
titles the plaintiff to exemplary damages,^ w^hat-
»4* SomerviUe v. Hawkins, 10 0. B. 690, 20 Law J. 0. P. 131, 15 Jur. 450.
And see Manby v. Witt, 18 C. B. 544, 25 Iaw J. C. P. 204. 2 Jur. (N. S.) 1004;
Fowles V. Bowen, 30 N. Y. 20; Dale v. Harris, 100 Mass. 193.
»*5 Missouri Pac. R. Co. v. Behee (Tex. Civ. App.) 21 S. W. 884. And see
Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 668, 11 S. W. 555; Hunt v. Great
Northern Ry. Co., 2 Q. B. 189; International & G. N. R. Co. v. Gre^iwood.
2 Tex. Civ. App. 76, 21 S. W. 559. Instructions given by an employer to his
counsel to investigate entries made on his books by an employ^, which the
employer claims to be false, and to make protest to the employ^ against them,
cannot serve as the foundation of a charge of slander and libel, or ground for
jm action in damages by the employ^ against the employer. Levy v. McCan,
44 La. Ann. 528, 10 South. 794. And see Bacon v. Michigan Cent R. Co.,
66 Mich. 166, 33 N. W. 181.
«*« Fresh v. Cutter, 73 Md. 87, 20 Atl. 744. And see Gardner v. Slade, 13
Adol. & B. (N. S.) 796; Id., 18 Law J. Q. B. 334, 13 Jur. 826; Child v.
Affleck, 9 Barn. & C. 403; Dixon v. Parsons, 1 Fost. & F. 24; Fryer v.
Klnnersley, 15 C. B. (N. S.) 422-429; King v. Warhig, 5 Esp. 14.
a 47 Townsh. Sland. & L. preface, vi.
S'is An instruction that the jury may add, as punitive damages, such amount
as will adequately punish defendant, and will prevent others from doing the
same, was insufficient, when plaintiff pleaded and put in evidence facts tend-
ing to rebut express malice, as this should hav« been called to the jury's
attention. Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020. Perhaps as ex-
treme an Instruction as to exemplary damages as has not been made the
basis of a reversal occurs in Hayes v. Todd, 34 Fla. 233, 15 South. 752. There
('h. 8] DEFENSES. 545
ever negatives malice operates to mitigate damages.
The jury determines whether given matter is in mit-
igation or aggravation of damages.
Provocation.
Provocation may mitigate damage.'** The law makes allowance
for acta committed in the heat of sndden passion by way of mitiga-
tion of damages. But if there had been an opportunity for blood
to cool, a mere provocation connected with wrong complained of
cannot be shown.*'" The defense follows the analogy of provoca-
the court instructed tlie jury that "exemplary damages are such as not only
compensate the wrong done but also tend to protect all good citizens of the
state from like wrongs from the reckless and malicious tongue of such law-
less persons as have no regard for the good name of their fellows or for the
fair name and virtue of the women of the land, but turn themselves loose,
like ravenous wolves, to destroy that which money cannot buy, and that
which, when lost, the powers of earth cannot restore." And, further, see
Cruikshank v. Gordon, 118 N. Y. 178, 23 N. B. 457; Southcombe v. Armstrong
(City Ct. Brook.) 8 N. Y. Supp. 361; Grace v. McArthur, 76 Wis. 641, 45 N.
W. 518; Kenyon v. Cameron, 17 R. I. 122, 20 Atl. 233. Punitive damages
may be recovered in an action for slander, without proving express malice.
Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020. Proof of express malice is
necessary to entitle plaintiff to exemplary damages. Republican Pub. Co.
V. Conroy (Colo. App.) 38 Pac. 423. In an action for slander, where the con^
dition of the accounts between the parties is in dispute, and the record
in a suit settling such accounts Is admitted in evidence, it is for the jury
to say whether the facts disclosed by such record are in mitigation or in
aggravation of damages. McCauley v. Elrod (Ky.) 27 S. W. 867. As to
excessive damages, see Maesk v. Smith (Sup.) 12 N. Y. Supp. 423; Crate v.
Dacora (Sup.) 15 N. Y. Supp. 607; Tillinghast v. McLeod, 17 R. I. 208, 21
Atl. 343; Grace v. McArthur, 76 Wis. 641, 45 N. W. 518; Jones v. Greeley,
25 Fla. 029, 6 South. 448; W^ebber v. Vincent (Sup.) 9 N. Y. Supp. 101;
Dennis v. Johnson, 42 Minn. 301, 44 N. W. 68; Henderson v. Fox, 83 Ga. 23:j,
0 S. E. 839.
i*9 Libels by plaintiff, connected with same subject as libels by defend-
ant, may be shown in mitigation. Tarpley v. Blabey, 2 Bing. N. C. 437.
But plaintiff must be connected with such previous defamation. Dressel v.
Shippman (Minn.) 58 N. W. 684. But see Townsh. Sland. & L. p. 678, § 410.
>Bo Applied to a case where the Minneapolis Tribune contained statements
concerning the setting of a broken arm by plaintiff so that it had to be reset.
The Globe called this a brutal jest. The Tribune retorted by abusing the
plaintiff. Non constat when knowledge of article of Globe came to de-
fendant's knowledge. Doubtful knowledge was doubtful provocation, Quiu-
LAW OF TORTS— 85
.546 WRONGS AKFElTING REPUTATION. [Ch. JS
lion as mitigating damages in assault and battery,*'^ but there
does not seem to be any doctrine akin to contributory negligence,
whereby the wrong is barred if the person defamed in some manner
induc€»d the publication."**
Common-Law Retraction,
A mere offer to retract cannot be shown in mitigation of dam-
ages, but a retraction published in good faith, even after com-
mencement of an action for defamation, may, under some circun?-
stances, be proved in mitigation of damages,'*^* but in mitigation
only,'** because it negatives malice.^** Conversely, evidence thai
the defamer, subsequent to the publication of the article sued on,
has published another containing a letter from the defamed re-
questing a retraction, is admissible to show malice.'"'
Honest BdxeJ — Rumors,
The law recognizes that anything tending to show an honest be-
lief in the substance of the publication when made is admissible for
the puri)ose of disproving malice and mitigating damages, though
by V. Tribune CJo., 38 Minn. 628, 529, 38 N. W. 623. The Tribune states;
(Jlobe criticises Tribune; Tribune attacks the doctor. A. hits B.; hence B.
hits C. "Cooling time" is short in Quinby v. Tribune Co., 88 Minn. 529, 38
N. W. 623. The Globe article was day before the latter publication. But.
if its i-etaliatory libelous article had been written on same evening of same
day, provocation could have been shown. Stewart v. Tribune Co., 41 Minn. 71,
42 N. W. 787.
801 Ante, p. 444, "Assault and Battery."
3B2 Irvine, C, in Vallery v. State, 42 Neb. 123, 60 N. W. 347, 348, com-
Doentin^ on King v. Waring, 5 Esp. 15; Weutherston v. Hawkins, 1 Term
R. 110; Smith v. Wood, 3 Camp. 323.
368 Turton v. New York Recorder Co., 144 N. Y. 144, 38 N. E. 1009; Davfs
V. Marxhausen (Mich.) 61 N. W. r)04; Storey v. Wallace, 60 111. 51; Newell.
Def. p. 907, § 84. But cf. Bolt v. Hauser (Co. Ct.) 10 N. Y. Supp. 397.
3 64 Davis V. Marxhausen (Mich.) 61 N. W. 504.
3B5 Allen V. Pioneer Tress Co., 40 Minn. 117, 41 N. W. 936; Park v. Detroit
Free Press Co., 72 Mich. SCO, 40 N. W. 731; Turton v. New York Recorder
Co., 144 N. Y. 144, 38 N. E. 1009; Id., 3 Misc. Rep. 314, 22 N. Y. Supp. 766.
3B6 In an action against a newspaper for libel, an article, published after
the article counted upon, which contained plaintiff's letter requesting a re-
traction, and a refusal to retract, is admissible to show malice. Thibault
V. Sessions, 101 Mich. 279, 59 N. W. 624.
'■' V-.. aA_-j^'--'-i
Ch. 8] DEFKNSKS. 547
it tends to prove the truth of the charge.*'^ Accordingly, in an
action for slander, evidence that the slander was only a repetition
of a current report of long standing, by which plaintiff's general
reputation has become impaired, is admissible in mitigation of com-
pensatory damages.*** And where the article contained several
distinct libelous charges, a justification as to part of the charge,
and not the whole, goes only in mitigation of damages, and does
not warrant a verdict for the defendant.*'* Therefore, partial
truth may mitigate damages.**® l^ut good faith and reasonable be-
lief will not prevent recovery of substantial damages.'*^ Cases
involving these general principles are constantly arising in con-
nection with the defense urged by the defendant that his conduct
was justified by rumors concerning the plaintiff.
So far as it may affect the culpability of the defendant, as miti-
gating malice, evidence that he knew, believed, and relied on ***
general rumors *** to the effect of the defamatory matter would be
entirely proper. Hence, such evidence is often held to be admissi-
ble.*** However, from the plaintiff's point of view, the extent of
«57 Huson V. Dale, 19 Mich. 17-26 (per Christlancy, J.).
868 Nelson v. Wallace, 48 Mo. App. 103.
»5» Hay V. Reld, 85 Mich. 29«, 48 N. AV. 507.
»«o Sawyer v. Bennett (Sup.) 20 N. Y. Supp. 45.
8«i Blocker v. Schoff, S3 Iowa, 2Go, 48 N. W. 1079; Burt v. Advei-tlser News-
paper Ck>., 154 Mass. 238. 28 N. El. 1.
862 Larrabee v. Minnesota Tribune (3o., 36 Minn. 141-143, 30 N. W. 462;
I^throp V. Adams, 133 Mass. 471. Prior publication in other newspapers,
properly repeated and shown, may mitigate, as showing how defendant
might reasonably believe them to be true. Hewitt v. Pioneer Press Co., 23
Minn. 178; Upton v. Hume, 24 Or. 420, 33 Pac. 810. And see Frazler v. Mc-
Coskey, 60 N. Y. 337, disapproved in Hallam v. Post Pub. Co., 55 Fed. 456; Id.,
8 C. C. A. 201, 59 Fed. 530-537. The truth of the charge, though not pleaded,
is admissible to disprove malice, and in mitigation of damages, if it was
known at the time of publication, but not otherwise. Simons v. Burnham
(Mich.) 60 N. W. 476.
863 But facts sulilcient to Justify belief, if unknown, and not relied on by
defendant, are not in mitigation. Quinn v. Scott, 22 Minn. 4.56. Thus, that
after charge of crime plaintiff bad reputation of being guilty is not admis-
sible. Simmons v. Holster, 13 Minn. 249 (Gil. 232) ; Marks y. Baker, 28 Minn.
162, 9 N. W. 678; Regnler v. Cabot, 2 Oilman, 34. And see 33 Cent. Law J.
379.
864 Van Dcrveer v. Sutphin, 5 Ohio, 293; Republican Pub. Co. v. Mosman,
54S WRONGS AFFECTING REPUTATION. [Ch. 8
his suffering: is not measured by defendant's moral shortcoming or
personal righteousnesa Hence, such evidence is perhaps as often
disallowed.'*" If, however, a defendant offers to prove such ru-
mors, ho cannot object to similar evidence in rebuttal.*** But pub-
lishing]^ d(»faraatory matter as a rumor,'"^ or giving a specific source
as authority, is no longer ••• a defense '*• by way of justification, al-
though it may operate to mitigate damages,*^*
Plaintiff^ 8 Character and Positiorim
When one claims damages on the ground of the disparagement
of his character, evidence, in mitigation of damages, may be given,
under proper allegation,*^^ that his character was blemished before
the publication of the libel or slander.*^* Thus, in an action for
libel the defendant may prove, in mitigition of damages, that before
and at the time of the publication of the libel the plaintiff was gen-
erally suspected to be guilty of the crime thereby imputed to him,
and that, on account of this suspicion, his relatives and friends had
ceased to associate with him."^* Evidence of general bad reputation
15 Colo. 399. 24 Pac. 1051; Hay v. Reid. 85 Mich. 296. 48 N. W. 507; Mor-
rison V. Press Pub. Ck). (Super. N. T.) 14 N. T* Supp. 131-133; Arnold v. Jew-
ett (Mo. Sup.) 28 S. W. 614. And see cases collected, pro and con, in Townsh.
Slaud. & L. p. 678, S 411.
3«B Scott V. Sampson, 8 Q. B. Div. 491; Edwards v. San Jos6 Print & Pub.
Soc., 99 Cal. 431, 34 Pac. 128; Gray v. Elzroth, 10 Ind. App. 587, 37 N. E. 551.
A defendant who has started and circulated a slanderous report about a wo-
man cannot prove by others that they had heard the same sland^. BlackweU
V. Landreth, 90 Va. 748, 19 S. E. 791.
8«« Bogk V. Gassert, 149 U. S. 17, 25, 13 Sup. Ct. 738; Ward v. Blake
Manuf' g Co., 5 C. C. A. 538, 56 Fed. 4.37, 441; Elliott, App. Proc. § 628.
8ft7 Republican Pub. Co. v. Miner, 3 Colo. App. 508, 34 Pac. 485; Haskins
V. Lumsden, 10 Wis. 309.
see Northampton's Case, 12 Coke, 384; Davis v. Lewis, 7 Term R, 17;
Maltland v. Goldney, 2 East, 426.
8«» Lewis V. Walter, 4 Bam. & Aid. 605; De Cresplgny v. Wellesley, 5
Blng. 392 (libel); Tidman v. Ainslie, 10 Exch. 63 (libel); McPherson v. Dan-
iels, 10 Barn. & C. 263 (slander); Watkin v. Hall, L. R. 3 Q. B. 396 (slander).
870 Dole V. Lyon, 10 Johns. 447.
871 Halley v. Gregg, 82 Iowa, 622, 48 N. W. 974; Ward v. Deane (Sup.) 10
N. Y. Supp. 421,
872 Ball, Gas. Torts, p. 122.
873 Earl of Leicester v. Walter, 2 Camp. 251. Cf. Sandford y. Rowley, 93
Mich. 119, 52 N. W. 1119,
Ch. 8] DEFENSES. 540
is admiBsible, in mitigation of damages; and evidence of bad reputa-
tion as to that phase of character involved in a case is competent,
not to establish any facts in issue, but to explain conduct and to en-
able the jury better to weigh the evidence upon doubtful questions
of fact bearing on the character of defendant.^^* Therefore, bad
reputation for integrity is admissible in charges of political dis-
honesty. "We should be loth to differentiate a want of integrity in
political matters from the same failing in business or society." ""
The plaintiff's general social and personal standing may be shown in
evidence as bearing on the question of damages.*'* And if plaintiff
»T4 Sage, District Judge, In Hallam v. Post Pub. C5o., 55 Fed. 456, dis-
cussing Gilchrist v. McKee, 4 Watts, 380; Oonroe v. Conroe, 47 Pa.
St. 198; Drown v. Allen, 91 Pa. St. 393; Moyer v. Moyer, 49 Pa. St. 210;
Duval V. Davy, 32 Ohio St. G04; Sanford v. Rowley, 93 Mich. 119, 52
N. W. 1119. And see Greenl. Ev. § 55. In an action for slander in im-
puting to plaintiff official misconduct, to show want of actual malice, de-
fendant should have been allowed to prove what others had said to him in
regard to plaintiff's official conduct. Callahan v. Ingram (Mo. Sup.) 26 S. W.
1020. Evidence of a general belief and suspicion that plaintiff was guilty
of the acts charged in the slanderous words is admissible in mitigation of
damages. Gray v. EUzroth, 10 Ind. App. 587, 37 N. B. 551. It has, however,
been held that In an action of libel only 'the ^'general" reputation of plaintiff
can be shown in mitigation ot damages. Thibault v. Sessions, 101 Mich. 279,
59 N. W. 624; Indianapolis Journal Newspaper CJo. v. Pugh, 0 Ind. App. 510,
33 N. B. 991.
376 Taft, J., In Poet Pub. Co. v. Hallam. 8 C. C. A. 201, 59 Fed. 530-537.
87C Larned v. Buffinton. 3 Mass. 546; Harding v. Brooks, 5 Pick. 244-247;
Klumph V. Dunn, 66 Pa. St. 141-147; Press Pub. Co. v. McDonald, 11 C. G. A.
155, 63 Fed. 238. As to plaintiff's character, and, gen^nlly, increasing dam-
age, see Morey v. Morning Journal Ass'n, 123 N. Y. 207, 25 N. E. 161; Enos
V. Enos (Sup.) 11 N. Y. Supp. 415; Farrand v. Aldrich, 85 Mich. 593, 48 N. W.
628; Hintz v. Graupner, 138 111. 158, 27 N. E. 935; Dixon v. Allen, 69 Cal.
527, 11 Pac. 179. As to circulation of defendant's newspaper in aggravation
of damage, see Farrand v. Aldrich, 48 N. W. 628;* Patten v. Belo, 79 Tex.
41, 14 S. W. 1037. It is competent in a slander suit to admit proof, as bear-
ing on the question of damages, that plaintiff has a family of young children,
who would be disgraced by the charge. Enos v. Enos, 135 N. Y. 609, 32 N.
E. 123. In a civil action for libel, plaintiff's general social standing may be
shown In the evidence in chief, as bearing on the question of damages.
Press Pub. Co. v. McDonald, 11 C. C. A. 155, 63 Fed. 238. "It is not com-
petent to enter Into the details of the finances of a defendant in a libel or
slander suit. The inquiry should be directed to his flnancLil standing in
]
5.')() WRONGS AFFECTING REPUTATION. [Ch. 8
alleges her good character and repute, and this is denied by the de-
fendant, the plaintiff is not required to rest upon the legal presump-
tion as to chastity and virtue,*" but she can properly oflEer proof un-
der such allegation as part of her case.''*
SLANDER OF TITLE OB FBOPEBTY.
182. Plaintiff can recover for disparas^ing words published
concerning title or property whenever he shows —
(a) That the statement is false;
(b) That the statement is malidons in &ct;
(c) That the statement has caused him proximate and
special pecuniary injury 5*
The wrong called slander of title is, properly speaking, the basis
of an action on the case for special damage sustained by reason of
the speaking or publication of the slander of the plaintiff's title.*'*
No specific name has been applied to cases which rest on the same
foundation, but are not the same as slander of title.'*^ Disparage-
ment of property is clearly analogous."*" The old form of action
concerns realty only; the new relates to property generally, — realty
the commimitj'. Though he may be possessed of considerable wealth, yet,
if this be not generally known in the community, no greater Injury can on
that account be said to flow fix>m the publication of the libel, or the utter-
ance of the slander. It is his reputed, not his actual, standing, that bears
upon the injuiT." Grant, J., in Farrand v. Aldrich, So Mich. 593, 48 N. W.
ir28-630.
377 Conroy v. Pittsburgh Times, 139 Pa. St. 334, 21 Atl. 154.
^V8 staff oi-d V. Morning Journal Ass'n, 142 N. Y. 598, 37 N. E. 625, distin-
guishing Houghtaling v. Kllderhouse, 1 N. Y. 530; Pratt v. Andrews, 4 N. Y.
403; Young v. Johnson, 123 N. Y. 226, 25 N. E. 303. And see Peters v.
Boumeau, 22 111. App. 177.
37 0 Fraser, Torts, 116. And see Boynton y. Shaw Stocking Co., 146 Mass.
219, 15 N. E. 507; Wier v. Allen, 51 N. H. 177; Snow v. Judson, 38 Barb.
210; Kennedy v. Press Ck>., 41 Hun, 422.
380 Tindal, J., in Malachy v. Soper (1835) 3 Bing. N. 0. 371-382.
381 Pig. Torts, 381, 382.
882 Western Counties Manure Co. v. Lawes Manure Co., L. R. 9 Exch. 218.
But in Young v. Macrae, 3 Best & S. 264-270, Blackburn, J., says: "My
own impression is that where there is a written depreciation of an article,
unless it is a slander actionable in Itself, no allegation of special damage will
til. H] SLANDER OF TITLE OR PROPERTY. 551
and personalty, corporeal and incorporeal, — ^and is brought for a
false statement injurious to the owner in his right to profits. It has
been insisted that it is of little consequence whether the wrong is
slander, or whether it is a statement of any other nature "calculated"
to produce special damage.* ■• However, on consideration of the
elements of the wrong, it appears that, as to matters of practice at
least, there is material difference, and that the wrongs under con-
sideration lie halfway between libel and slander and malicious
prosecution; *•* and, in many respects, approach wrongs of fraud.**'
Fahniy of SUiteinent.
In wrongs of this description, as in libel and slander, the words
which constitute the offense must be set out exactly in the complaint
or declaration,*** and special damages must be circumstantially al-
leged.**^ In cases where character is at stake, the presumption is
in favor of the party defamed; but there is no similar presumption
in favor of a man's title, or the quality of his merchandise.'** Un-
less he shows falsehood, he shows no case to go to the jury.***
make it actionable except in the case of slander of title." Clerk &. L.
Torts, 493, note a, classes Sheperd v. Wakeman, 1 Sid. 70, as such a case.
Disparagement may be actionable as to copyright, patents, and the like.
Dicks V. Brooks (1880) 15 Ch. Div. 22, 49 Law J. Ch. 812; Thorley's Cattle-
Food Co. V. Massam (1880) 14 Ch. Div. 763; Hendriks v. Montagu, 17 Ch.
Div. 638, 50 Law J. Ch. 450; Singer Manuf*g Co. v. Loog, 8 App. Cas. 15;
Meyrose v. Adams, 12 Mo. App. 329; Andrew y. Deshler. 45 N. J. Law, 107.
To inchoate rights under agreement: Benton v. Pratt, 2 Wend. 385; Rice y.
Manley, 66 N. Y. 82. To diversion of custom by misrepresentation of Hghts:
Marsh v. Billings, 7 Cush. 322; Bigelow, Lead. Cas. Torts, 59. And see
Riding y. Smith, 1 Bxch. Diy. 91; Clerk & L. Torts, 493.
»»8 Abinger, C. B., in Qutsole y. Mathers, 1 Mees. & W. 495-500 (where de-
fendant said that tulips of the plaintiff about to be sold at auction were
stolen property).
s8« Bm'tch y. Nickerson, 1 Am. Lead. Cas. 121.
88G Pig. Torts, 260, 375. "It is a special yariety of deceit, which differs
from the ordinary type, in that third persons, not plaintifT himself, are in-
duced by defendant's falsehood to act in a manner which caused plaintifTs
damage." Pol. Torts, 260.
«8« Gutsole V. Mathers, 1 Mees. & W. 495; Hill y. Ward, 13 Ala. 310.
««T Bailey y. Dean, 5 Barb. 297-300.
888 Burnett y. Tak, 45 Law T. 743.
380 Clerk & L. Torts, 494, citing Maule, J., In Pater y. Baker, 3 C. B.. at
page 869; Steward y. Young, L. R. 5 C. P. 122-127. Cf. Rowe y. Roach. 1
.")52 WRONGS AFFECTING REPUTATION. [Ch. ^
In this action truth may be given in evidence under the general
issue.'"^
Malice.
AMiile the authorities are agreed that malice is essential to the
plaintiff's case, they iii'e at variance as to whether malice in law is
sufficient, or whether there must be malice in fact*** The later
opinions require the plaintiff to allege, and, as a necessary part of
his case, to prove, that malice in fact existed, — that is, a desire on the
defendant's part to injure the plaintiff, or to benefit himself or some
third person at the plaintiff's expense.'** Certainly, where there is
an occasion of privilege, the plaintiff will be nonsuited unless he
shows malice in fact.*** As in malicious prosecution, so in the
cases under consideration, malice and want of probable cause are
intimately connected. Want of reasonable cause is only evidence
from which the jury may, but is not bound to, infer malice.*'* If
what a person did or said was in pursuance of a bona fide claim or
color of title which he was honestly asserting, and especially if he
Maiile & S. 304. In an action for slander of title, where defendant sets up
title in himself, the action becomes one to try title, in which the burden of
proof is on defendant as in a petitory action. McCk>nneIl v. Ocy, 46 La. Ann.
ri04, 15 South. 424. As to requirement that in slander of patents plaintiff must
commence proceedings to establish validity of patents, see Ilollins y. Hicks,
L. R. 13 Eq. 355; Axmaim v. Lund, L. R. 15 Eq. 330.
aoo Kendall v. Stone, 2 Sandf. 2G9.
801 In Young v. Macme, 3 Bee^t & S. 264, it was held not actionable. And
see Johnson v. Hitchcock, 15 Johns. 185. In Western Counties Manure Go.
V. Lawcs ISIanure Co., L. R. 9 Exch. 218, false statements as to inferiority of
plaintiff's fertilizer, resulting in loss of customers, were held actionable, with-
out proof of malice. And see PauU v. Halferty, G3 Pa. St 40; Dicks v.
Brooks, 15 Ch. Div. 39. In Wren v. Weild, L. R. 4 Q. B. 213, letters to in-
fringement of defendant's patents by plaintiff were held actionable only when
made mala fide. Steward v. Young, L. R. 5 C. P. 122. And see Gerard v.
Dickenson, 4 Coke, 18; Dodge v. Colby, 37 Hun, 515; Walkley v. Bostwick,
49 Mich. 374, 13 N. W. 780; Andrew v. Deshler, 45 N. J. Law, 1G7.
8»2 Halsey v. Brotherhood, 19 Ch. Div. 391; Hatchard v. Mege, 18 Q. B.
Dir. 771.
893 Pater v. Baker, 3 C. B. 831; Pitt v. Donovan, 1 Maule & S, 639. And
see Steward v. Young, L. R. 5 C. P. 122.
80* Pitt V. Donovan, 1 Maule & S. 639; Maule, J., in Pater v. Baker, 3 0.
B. 8C8; Wren v. Weild, L. R, 4 Q. B. 213.
Ch. 8] SLANDER OF TITLE OR PROPERTY. 553
was actinf^ under advice of counsel, though his title proves not to
have been perfect, he will not be liable for slander of title.**"
**Whether a party acted maliciously depends upon his own motives,
and on the view which the jury entertained of the mind of the party
himself; and we cannot try what are the motives and feelings of par-
ticular men's minds by referring to the mind of some other person.
Therefore, if we refer to a mind that is sensible and reasonable, and
which does not judge under the same pressure as the mind of the
person in question might do, and make that sensible and reasonable
mind the standard by which to judge of the state of the mind of the
person who is under that pressure, we shall be referring to an im-
proper rule to judge by. The question is, not what judgment a
sensible and reasonable man would have formed in this case, but
whether the defendant did or did not entertain the opinion he com-
municated." ^•^
Special Damages.
In order that the plaintiff may recover, he must both allege and
show, not merel3' damage, but special pecuniary damage, as the
natural, proximate result of the disparagement.^*^ Therefore, the
•»5 mu V. Ward, 13 Ala. 310; Bailey v. Dean, 5 Barb. 297.
8»e Pitt V. Donoyan, 1 Maule & S. 639; Ames, Lead. Cas. G30. And see
note 1, at page G31, citing Harriss v. Sneeden, 101 N. C. 273, 7 S. E. 801; Ger-
ard V. Dickenson, 4 Coke, 18; Lovett v. Weller, 1 RoUe, 409; Smith v. Spooner,
3 Taunt. 240; Green v. Button. 2 Cromp., M. & R. 707; Pater v. Baker, 3 C.
B. 831; Watson v. Reynolds, 1 Moody & M. 3; Carr v. Duckett, 5 Hurl. &
N. 783; Atkins v. PeiTin, 3 Fost. & F. 179; Brook v. Rawl. 4 Excb. 521;
Burnett v. Tak, 45 Law T. 743; Steward v. Young, L. R. 5 C. P. 122; Wren
V. Wcild, L. R. 4 Q. B. 213; Hart v. Wall, L. R. 2 C. P. 140; Dicks v.
Brooks, 15 Ch. Div. 39; Halsey v. Brotherhood, 19 Ch. Div. 389; Boulton
V. Shields. 3 U. C. Q. B. 21; HiU v. Ward. 13 Ala. 310; McDaniel v. Baca,
2 Cal. 326; Thompson v. White, 70 Cal. 135, 11 Pac. 564; Reld v. McLen-
don, 44 Ga. 156; Van Tuyl v. Rlner, 3 111. App. 550; Stark v. Chetwood, 5
Kan. 141; Gent v. Lynch, 23 Md. 58; Swan v. Tappan, 5 Cush. lOi; Mey-
rose V. Adams, 12 Mo. App. 329; Andrew v. Deshler, 45 N. J. Law, 167;
Dodge V. Colby, 37 Hun, 515; Hovey v. Rubber Co., 57 N. Y. 119; Kendall
V. Stone, 5 N. Y. 14; Cornwell v. Parke, 52 Hun, 596, 5 N. Y. Supp. 905; Id.,
123 N. Y. 657, 25 N. E. 955; McElwee v. Blackwell. 94 N. C. 2G1.
397 Burkett v. Griffith, 90 Gal. 532, 27 Pac. 527; Cheesebro v. Powers, 78
Mich. 472, 44 N. W. 290; Duncan v. Griswold, 92 Ky. 546, 18 S. W. 354;
Swan V. Tappan, 5 Cush. 104-111; Tobias v. Harland, 4 Wend. 537; Collins
554 WKO^(t3 AFFKtTING RKPUTATION. [Ch. 8
mere averment that, because of the alleged wrong, the plaintiff was
compelled to go out of business is insufficient.'*^' So, in Malachy v.
Soper, a verbose allegation that mining shares had depreciated in
value, and that the plaintiff had been prevented from selling them at
a profit, was held insufficient "The doctrine of the older cases is that
the plaintiff ought to aver that by the speaking he could not sell or
lease, and that it will not be sufficient to say only that he had an in-
tent to sell without alleging a communication for sale." "• But, if
one falsely and maliciously claims a lien on wood which another
had contracted to sell, whereby the latter is unable to deliver, this
is good cause of action for slander of title.***® However, the damage
complained of must be the proximate result of the wrong. There-
fore, it has been held, in New York,*®^ that the breach of a contract
with a third person for sale of a lot of land was insufficient to make
out special damage.
V. Whitehead, 34 Fed. 121; Stark v. Chetwood, 5 Kan. 141; Dooling r. Bud-
get Pub. Co., 144 Mass. 258, 10 N. E. 809; Walton v. Perkins, 28 Minn. 413.
10 N. W. 424.
808 Dudley v. Briggs. 141 Mass. 582, 6 N. E. 717; Wilson v. Dubois, 35
Minn. 471. 29 N. W. CS.
800 3 Bing. N. C. 371 (per Tindal, C. J.), affirmed in Riding v. Smith. 1
Kxch. Div. 91-94 (per Kelly. C. B.).
*oo Green v. Button, 2 Cromp., M. & K. 707.
*oi Kendall v. Stone, 5 N. Y. 14, Chase, Lead. Cas. 149. (However, this case
was decided on reasoning of Vicars v. Wilcocks, 8 East, 1, generally regarded
as unsound.) And see Brentman v. Note (City Ct. N. Y.) 3 N. Y. Supp. 420,
Oh. y] MALICIOUS WRONGS IN GENKUAL. 555
MALICIOUS WRONGS.
183. Malicious WroDgs in General.
184. Deceit.
185-191. The Wrongful Conduct of Defendant
192-103. . Conduct of Plaintiff.
194. Resulting Damage.
195-196. Malicious Prosecution.
197. The Judicial Proceeding.
198. Termination of Proceeding.
199. Parties to Proceeding.
200. Malice and Want of Probable Cause.
201. Damages.
202. Distinction from False Imprisonment*
203. Malicious Abuse of Process.
204. Malicious Interferen<jB with Contract.
205 -206. Conspiracy.
207. Strikes and Boycotts.
MALICIOUS WRONGS IK GENEBAL.
183. To do intentionally what is calculated in the ordinary
course of events to damag^e, and which in fact does
damage, another, in that other person's property
or trade, is actionable, if done without just cause
or excuse.^
The truth of the saying of Dr. Holmes to the effect that the growth
of the law is to be found in history and not in science, is nowhere
more apparent than in the subject of malicious wrongs. Certain
traditional forms of malicious wrongs are clearly recognized. Dis-
cussion of •such wrongs are found in texts, scattered articles, deci-
1 Bowen, L. J., in Mogul Steamship Co. v. McGregor, L. R. 23 Q. B. 598,
11892] App. Cas. 25, citing Bromage v. Prosser, 4 Barn. & G. 247; Gapltal,
etc.. Bank v. Henty, L. R. 7 App. Cas. 74. This statement avoids the common
principles, for example, as in 1 Add. c. 1. § 9, p. 36 (40). But every malicious
act wrongful in Itself in the eyes of the law, if it causes hurt or damage to
another, Is a tort, and may be the foundation of an action. An act wrongful
55(i HAT.ICIOUS WRONGS. [Ch. 9
sions, and digests. Among these may be mentioned libel and slan-
der, slander of title, business, or property, fraud and deceit, mali-
cious prosecution, and other malicious abuse in connection with
courts of justice. Bej'ond these conventional forms of wrongs there
has been a general tendency to deny the existence of a cause of
action for which the law provides sanction. The loose sayings al-
ready considered, to the effect that a bad intention cannot make a
lawful conduct actionable, and that an unlawful intention cannot
s
make a lawful conduct actionable, have led to a vague impression
that these familiar forms of malicious wrongs are the only ones
recognized by law, and that unless a given case be brought within
them there is no cause of action. 'Hiis is a radical error. It is
true that for libel and slander, deceit, and malicious prosecution -
the conmion law provided a specific form of action and a definite
remedy; but under the actions on the case, even at common law
wherever there was a wrong conforming to the legal standard^ the
remedy was provided, in large measure at least
Classification of Malicious Wrongs,
The ordinary classification of malicious wrongs is based on the
historical development of the law adjective. The classification of
Mr. Pollock ' does not seem to be entirely logical, in that it fails to
give to libel and slander a proper place among malicious wrongs, in
its dissociation of malicious procedure and of slander of title. His
classification, perhaps the current one, has regard to the object of
the wrong; that is to say, he bases the classification upon the right
which is violated. But the very fact that there is the most inter-
minable confusion as to the nature of rights would necessarily make
such a classification unsatisfactory.
Mr. Tnnes,* as has been seen, rearranged the entire law of torts,.
In Itself producing damage is naturally actionable. Generally, see ante, p.
8G; Clerk & L. Torts, 16; Green v. Button, 2 Cromp., M. & R, 7#7; Cattle v.
Stockton Watei-works Co., L. 11. 10 Q. B. 43. An interesting article on the
right to so maliciously exercise one's legal rights as to cause damage to
otliers, and the remedy therefor, 58 J. P. 814.
2 Bigelow, Lead. Cas. 207-210; historical portion of note to Hutchins v.
Hutchins, 7 HiU, 104.
3 Pol. Torts (Webb's Ed.) p. 7; and ante, p. 108.
4lDnes, Torts, introduction.
Ch. 9] MAr.Tcious wrongs in general. 557
with reference to the instrumentalities by which the harm complained
of was caused. A specific application of this idea to malicious
wrongs might materially clarify the subject. In libel and slan-
der, the instrument of harm is the means of publication. In mali-
cious prosecution, malicious abuse of process, et sim., a court of jus-
tice is the means by which the harm is inflicted. In deceit, the in-
strument of harm is the false and damaging suggestion or suppres-
sion of the truth. Beyond these conventional lines, the instrument
of wrong may be concerted action between a number of persons,
when the wrong is called a ^'boycott" or "conspiracy." * It may be
one^s influence on the conduct of third persons.® It may be the use
of one's own property ^ or one's own official position. It may be a
tort to a third person.* This category may be indefinitely extended,
and, however arranged, will be added to by the courts from time to
time as new wrongs arise from the increasing complexity of society
and the ingenuity of human error and selfishness.
For present purposes, however, it is convenient, and will avoid
stretching the cases into an order not contemplated, and introdu-
cing a nomenclature not used by the courts in deciding cases, to fol-
low Mr. Pollock, and use the current names of the wrongs considered.
« Post, p. G41.
« Prof. Ames (1 Lead. Cas. Torts, 8) divides tlie malicious Injury to the
plaintiff by ' influencing the conduct of a third person thus: Section 1, by
inducing or aiding a third person to commit a breach of le^nil duty to the
plaintiff: (a) The duty of a servant to his master; (b) the duty of a wife to
her husband; (c) the duty of a contractor; (d) the duty of an individual not
to commit a tort. Section 2, by influencing a third person who owes no
legal duty to the plaintiff: (a) By slander of title and disparagement of
goods; (b) by fraud; (c) by force or threats; (d) by maintenance. This ad-
mirable order has met with warm approval
T Chesley v. King, 74 Me. 164. And see Ames, Lead. Cas. Torts, 744-750,
note 1, citing Stevens v. Kelley, 78 Me. 44r)-452, 6 Atl. 868; Roath v. Dris-
coU, 20 Conn. 533; Greenleaf v. Francis, 18 Pick. (Mass.) 117; Trustees v.
Youmans, 45 N. Y. 302; Wheatley v. Baugh, 25 Pa. St. 528. And see Frazler
V. Brown, 12 Ohio St. 294; Chasemore v. Richards, 7 H. L. Cas. 349-388;
Smith V. Kenrick, 7 C. B. 515. As to bursting an oU well, see 30 Am. Law Reg.
(N. S.) 237-251. And see Phelps v. Nowlen, 72 N. Y. 39.
8 Midland Ins. Co. y. Smith, L. R. 6 Q. B. Diy. 561; Ames, Lead. Can.
Torts, 719.
558 MALICIOUS W HONGS, [Ch. 1>
The radical changes thus avoided will also leave other portions of
the law of torts Ib its conventional arrangement*
DECEIT.
184. Whether or not deceit is actionable depends ngon the
legal aspect of—
(a) The wrongful conduct of defendant.
(b) The conduct of plaintiff caused thereby.
(c) The damage resulting therefrom.
Writs of deceit were very ancient. A variety of forms are given
in the register." Deceit, being older than case, was for a time dis-
tinct from it.*® Indeed, it was the model for the new writs evolved
under the statute of Westminster 11. But case encroached upon it.
In consequence, it "lost its individuality. The name is still retained ;
but for a century or more that has been used to indicate the nature
of the subject-matter rather than any peculiar form of action. De-
ceit has been fused with the younger and more vigorous action of
trespass on the case, or, rather, has become one of its species." **
Since the general repeal of the various peculiar forms of action, the
name continues to describe a particular form of wrong, or, more
accurately, the means by which a particular wrong is done.^*
Deceit affords a good illustration of the overlapping of various
branches of the system of jurisprudence as administered in English
speaking countries. The law as to deceit is immediately related
to contracts, and is especially involved in sales,*' The tort may be
» Ante, p. 10, c. 1.
10 3 Reeve, Hist. England (Finl. Ed.) p. COG.
11 Bigelow, Ijead. Cas. 20 et seq., note to Pasley v. Freeman. And see 2
Esp. N. P. 623. By Isaac Esplnasse, "deceit" is also spelled "discelt,"-— e. g. at
page 821.
12 Innes, Torts, preface.
18 Therefore, Comfoot v. Fowke, 6 Mees. & W. 358, which Involved an
action on the contract, is generally referred to in discussions on deceit Blge-
low, Lead. Cas. 21. As to election to rescind contract, see New Brunswick,
etc., Co. V. Conybeare, OH. L. Cas. 711. As to rescission and restitution in
integrum, see Western Bank v. Addie, L. R. 1 Scotch App. 145. Legal
Companion (India), review of the Tagore Law Lectures for 1804, by Sir
Frederick Pollock, on the "Law of Fraud, Mesrepresentatlon, and Mistake in
British India" (issue of December, 1894).
Ch. 9] DECEIT. 559
merged in the contract.** The person induced to enter into a con-
tract by deceit may rescind and sue for damages." It is by no
means an easy matter to determine whether a given cause of action
is on the contract or in tort.*' The action of assumpsit was, as has
been seen, originally an action on the case, and still retains traces
of its ex delicto origin. Hence, wherever there is a contract of
warranty, the buyer has always had the right to waive the contract
and sue in tort." And, generally, money obtained by deceit is re-
coverable in assumpsit** The term "misrepresentation," as used
in the law of contract, is sometimes given a totally different signifi-
cation from that assigned to it in the law of torts. Thus, it is de-
1* Burns v. Dockiay, 156 Mass. 135, 30 N. B. 551; Union, etc., Co. v.
Scheldler, 130 Ind. 214, 29 N. E. 1071.
15 Thus, persons induced by fraud of agent may rescind and sue agent for
damages in tlie amount paid for insurance, although the policy had run for
six months. Hedden v. Griffin. 136 Mass. 220. So, when action was brought
in November on insurance note, and in August prior knowledge of fraud came
to insured, the latter cannot rescind in November, after suit was brought.
Plympton v. Dunn, 148 Mass. 523, 2i) N. E. ISO.
i« A complaint alleged that plaintiff, relying on the fraudulent representa-
tions of defendants that one of them had a good tax title to land, and that
the former owner died leaving no minor heirs, was induced to purchase the
land, and take a quitclaim deed, and pay therefor $500; that he had also
paid a judgment for costs and damages in a suit by which the minor heirs of
the former owner recovered land,— and for the amount of such a judgment, to-
gether with the expenses of the suit, and the purchase money, he demanded
judgment. Held an action for damages for fraud alleged, and not to rescind
the conti-act of sale. McConuell v. Hughes, 83 Wis. 25, 53 N. W. 149. And
see Clark, J., in Hexter v. Bast, 125 Fa. St 52, 17 Ati. 252, 253; Mahurin v.
Harding, 28 N. H. 128.
iTBlanton v. Wall, 4 Jones, Law (N. C.) 532; McLeod v. Tutt, 1 How.
(Miss.) 288; Osgood v. Lewis, 2 liar. & G. (Md.) 495; Hillman v. Wilcox, 30
Me. 170; House v. Fort, 4 Blackf. (Ind.) 293; Trice v. Cockran, 8 Grat (Va.)
442; Lassiter v. Ward, 11 I red. Law (N. C.) 443; Vanleer v. Earle, 20 Pa
St. 277; Carter v. Glass, 44 Mich. 154, 6 N. AV. 200; Hopkins v. O'Neil, Ha
Mich. 403, 9 N. W. 448; Booth v. Northrop, 27 Conn. 325; Huston v. Plato,
3 Colo. 402; Lindsay v. Mulqueen. 26 Hun, 485. The best practice is to join
account for deceit with account in tort, alleging a simple breach of warranty.
Schuchardt v. Aliens, 1 Wall. (U. S.) 359; Hummiston v. Smith, 22 Conn. 19.
Cf. Bartholomew v. Bushnell, 20 Conn. 271; Beeman v. Buck, 3 Vt 53; West
v. Emery, 17 Vt 583; Vail V; Strong, 10 Vt. 457.
18 1 Esp. 21. But assumpsit will not lie on a fraudulent transaction. Id. 93.
•*><>0 MALICIOUS WRONGS. [Ch. 9
fined to be an innocent misrepresentation or nondisclosure of facts,
as distinguished from fraud and warranties. Such misrepresenta-
tions have no effect on a contract, except in the case of contract
said to be uberrimse fidei, in which, from their nature or from par-
ticular circumstances, one party must rely on the other for his knowl-
edge of facts and the other is bound to the utmost good faith, as in
insurance contracts and the like.** The term will, however, be used
in its more general and popular sense, in which it is essentially iden-
tified with fraud.
An action of deceit results in the award of damages, this is the
distinctive remedy in tort* On the other hand, in equity, a false
statement may be sufficient ground for refusing specific perform-
ance,** or for setting a contract aside; *^ or equity may reform a
fraudulent contract and then specifically enforce the contract as re-
formed."
SAME— THE WRONGFUL CONDUCT OF DEFENDANT.
186. The wrong^alness of defendant'B conduct dependB
upon —
(a) His mental attitude, and
(b) His consequent act or omission.
186. Defendant's mental attitude is the gist of the wrong.
The wrong, for which at common law trespass lay, did not depend,
so far as the fact of liability is concerned, upon the mental attitude
of the wrongdoer; although willfulness at the one extreme or mis-
i» Clark, Cont. 308-310. **The practical test of fraud, as opposed to mis-
representations, is that fi'aud gives rise to an action ex delicto, while inno-
cent misrepresentation does not. Fraud, besides being a vitiating element in
contract, is a tort or wrong apart from the contract, and may be treated as
such by beginning an action of deceit Misrepresentation in exceptional cases
may invalidate a contract, but wiU not support an action of deceit."
♦ But see ante, c. 1. note 50.
20 Lamare v. Dixon, L. R. C H. L. 414.
21 Groff V. Rohrer, 35 Md. 327; TraiU v. Baring, 4 De Gex, J. & S. 318;
Cowley V. Smyth, 46 N. J. Law, 380; Florida v. Morrison, 44 Mo. App. 529;
Keating v. Price, 58 Md. 532. But see Tone v. Wilson, 81 111. 529.
22 Bisp. Eq. S 4G8.
Ch. 9J DECEIT. 561
take at the other might affect the extent of the recovery. Deceit,
on the other hand, rests primarily upon the mental altitude. It de-
pends distinctly upon moral shortcoming. Ordinarily, there is not
only voluntary conduct; there is also voluntary injury. There is
not, however, harmony in the decisions as to how far mere negligence
can be the basis of deceit. The law of deceit has to deal with the
legal aspects of the moral question. The standard of legal fraud is
practically the same as of moral fraud.^' The presumption of in-
nocence applies, and the burden is on defendant to show moral or
legal wrong.^*
187. False representationB do not amount to a fraud at
law unless they be made with a fraudulent intent.
The intent to deceive may be shoTm in either of
three ways:
(a) That the party knew his statements to be false;
(b) That, having no knowledge of their truth. or falsity ,
he did not believe them to be true; or
(c) That, having no knowledge of their truth or falsity,
he yet represented them to be true of his own
knowledge.^
«8 Pig. Torts, 260; Clark, Cont. 340. The saying of Bramwell, L. J., In
Weir V. BeH, 3 Exch. Dlv. 238-243, is famous: '*! am of opinion that, to malce a
man liable for fraud, moral fraud must be proved against him. I do not
understand legal fraud. To my mind it has no more meaning than legal
heat or legal cold, legal light or legal shade. There never can be a well-
founded complaint of legal fraud, or of anj'thlng else, except where some
duty is shown and correlative right, and some violation of tliat duty ' and
right And when these exist, it is much better that they should be stated
and acted on, than that recourse should be had to a phrase illogical and
unmeaning, with the consequent uncertainty."
24 Childs V. Merrill, 66 Vt. 302, 29 Atl. 532.
25 Mitchell, J., in Humphrey v. Merriam, 32 Minn. 197. 198, 20 N. W. 138:
"In the first there would be a knowingly false assertion as to the fact; in
the second, as to his belief; and in the third, as to his knowledge of the
fact. And in each case the intent to deceive would be a necessary inference.
But in each case the intent to deceive must exist and must be proved." And
see Id.. 4G Minn. 413, 49 N. W. 199.
LAW OF TORTS— 36
562 MALiaoUS WRONGS. [Cli. 9
The courts are generally agreed that no action can be maintained
for a naked lie without intent to deceive.^* ^1t is settled law that
independently of duty, no action will lie for a misrepresentation,
unless the party making it knows it to be untrue, and makes it with
a fraudulent intention to induce another to act on the faith of it,
and to alter his position to his damage." *^ The intent required is to
harm the plaintiff, — that is, to induce him to pursue the conduct
complained of.*® It is not essential that it should be for the defend-
ant's benefit. Thus, a person making misrepresentations as to the
title of lands may be liable to the purchaser, though he has no di-
rect interest in the transaction, and receives none of the considera-
tion.'* The difficulty, however, arises in determining when the law
will find intent. The intent may be actual, when the case is clear,
or it may be implied, usually by the jury.** The courts are not in
harmony on the subject.
20 ''The unti-uth of a representation made to a party on some future occasion
and for a different purpose cannot be relied on as a Ki'ound for rescinding
a conti-act or for maintaining an action for deceit." Bamett v. Bamett, 83
Va. 50*, 2 S. E. 733. And see Buschman v. Codd, 52 Md. 202; Humphrey
V. Merriam, 32 Minn. 197, 20 N. W. 138; Beach v. Tuck, 57 Hun, 588, 10
N. Y. Supp. 884; Carter v. Harden, 78 Me. 528, 7 Atl. 392. A pleading count-
ing on fraudulent representations, which avers no more than that they were
untrue, without charging that they were knowingly or fraudulently made, is
bad. Fenwick v. Bowling, 50 Mo. App. 516.
27 Park, B., in Thom v. Bigland, 8 Exch. 731. And see Murray v. Man, 2
Exch. 538; Bohn v. Kemble, 7 O. B. (N. S.) 2(50. And see Bell. J., in
:Mahmin v. Harding, 28 N. H. 128. Cf. Angell v. Loomis, 97 Mich. 5, 55
N. W. 1008. Unless complaint alleges that representations are fraudulent,
it does not state a cause of action in deceit. Hoist v. Stewart, 154 Mass. 44r>,
28 N. E. 574, distinguishing Litchfield v. Hutchinson, 117 Mass. 195.
28 Tapp V. Lee, 3 Bos. & P. 3(57; Thom v. Bigland, 8 Exch. 725-731; Watson
V. Poulson, 15 Jur. 1111; Polhill v. Walter, 3 Bam. & Adol. 123.
20 Carpenter v. Wright, 52 Kan, 221, 34 Pac. 708.
80 In an action for deceit in the exchange of real estate, a declaration al-
leging that defendant knowingly made false representations of material
facts, by which plaintiff was induced to make the exchange, is sufficient,
since the jury may infer fraudulent intent. Brady y. Finn, 162 Mass. 2(30,
38 N. E. 506.
Cb. 9] DECEIT. 563
False Staiemeni vnth Knowledge.
The clearest case of liability for deceit arises where a person,
knowing a statement to be false, and intending to deceive, is guilty
of a misrepresentation. Under such circumstances, his liability is
without doubt.^^ For "'sciens' without *fraudulenter' would be
sufficient to support the action.**** But an honest statement of
what one believes to be the facts, without misrepresentation of the
source or extent of his information, cannot be made the basis of
recovery.'*
Fcdse Statement without Knowledge or Bdiefin Truth,
Where a false statement is made without knowledge, and with an
actual intent to wrong another, the liability is clear. ''If a man hav-
ing no knowledge whatever of the subject takes upon himself to
represent a certain state of facts to exist, he does so at his peril ; and
if it be done either with a view to secure some benefit to himself or
to deceive a third person, he is in law guilty of fraud, for he takes
upon himself to warrant his own belief of the truth of that which he
so asserts.** •* The belief of a party, to be an excuse for a false
81 Marsh v. Falker, 40 N. Y. 562; Stltt v. Little, 63 N. Y. 427; Avery
V. Chapman, 62 Iowa, 144, 17 N. W. 454; Simms v. Eiland, 57 Miss. 83;
Holdom v. Ayer, 110 IH. 448; Graham v. HollinjiQer, 46 Pa. St. 55; Hiiber
V. Wilson, 23 Pa. St. 178; Tucker v. White, 125 Mass. 344; Hartford Ins.
Co. V. Matthews, 102 Mass. 221; TerreU v. Bennett, 18 Ga. 404; Crown v.
Brown, 30 Vt. 707; Zabriskie v. Smith, 13 N. Y. 322; Sollund v. Johnson,
27 Minn. 455, 8 N. W. 271; Schwabacker v. Riddle, 99 IlL 343; Farmers'
Stock-Breeding Ass'n v. Scott, 53 Kan. 534, 36 Pac. 978; Waehsmuth v. Mar-
tini, 45 111. App. 244; Dickson v. Renter's Tel. Co., 3 C. P. Div. 1; Johnston v.
Bent, 93 Ala. 160, 9 South. 581; Williams v. McFadden, 23 Fla. 143, 1 South.
618; Buschman y. Codd, 52 Md. 202.
aa Per Butler, J., in Pasley v. Freeman, 3 Term R. 51, at page 60. And
see Foster v. Charles, 6 Bing. 396; PolhlU v. Walter, 3 Bam. & Adol. 114.
See, too, per Lord Games, Peek v. Gurney, L. R. 6 H. L. 377-409.
33 Kerr, Fraud & M. 54, 55, et seq.; Chaudelor v. Lopus, 1 Smith, Lead.
Cas. 299; Haycraft v. Creasy, 2 East, 92; Stone v. Denny, 4 Mete. (Mass.)
151; Marsh v. Falker. 40 N. Y. 562; Chester v. Comstock, Id. 575; Myer v.
Amldon, 45 N. Y. 169; Oberlander v. Spiess, Id. 175.
34 Maule, J.. lOvans v. Edmonds. 13 C. B. 777-786; Pawson v. Watson,
Cowp. 785-788. Per Lord Mansfield, Haycroft v. Creasy, 2 East, 92-103.
Per Lord Kenyon, Behn v. Bumess, 3 Best & S. 751, 32 Law J. Q. B. 204;
664 MALICIOUS WRONGS. [Ch. 9
representation, must be "a belief in the representation as made The
scienter will therefore be sufficiently established by showing that the
assertion was made as of tbe defendant's own knowledge, and not as
mere matter of opinion, with regard to facts of which he was awiire
Ilamlln v. Abell, 12o Mo. ISS. 25 S. W. 516. Wliore a wife, in the presence
of ber husband, makes repieseutatlous concerning the condition and value of
land which her husband owns, and Is about to exchange or sell to another
[►erson, and at the same time informs such peraon that she has never seen
ihe laud, and- that she ninlces the statement from what her husband had told
her of it, aud she had no intei*est in tbe land, and is not benefited by the
change or sale, she is not liable for damages for such representations, thouKb
they are false, in the absence of proof that she knew of their falsity. Stev-
ens V. Allen, 51 Kan. 144, 32 Pac. 922. But see Scroggin v. Wood, 87 Iowa.
497, 54 N. W. 4,'$7. **If persons take upon themselves to make assertions as
to wliich tliey are ignorant whether they are true or untrue, they must, in a
civil point of view, be held as responsible as if they asserted that which they
knew to be untrue." Per Lord Cairns, in Reese Uiver Silver Min. Co. v.
Smith, L. K. 4 II. L. G4-79; Fisher v. Mellen, 103 Mass. 503; Cole v. Cas
sidy. 13S Mass. 437; Bristol v. Braidwootl, 28 Mich. 191; Walsh v. Morse, 80
Mo. r»(W: Cal>ot V. Christie, 42 Vt. 121; Bower v. Fenn, 90 Pa. St. 359; I.eavttt
v. Si^^er, 35 Neb. SO, 52 N. W. 8:^2. A representation by one who knew noth-
ing about the stock, aud relied on defendant's statements wholly, **who as-
sumed to know its value, whether he did or not," may be actionable fraud.
Lawton v. KittHdge, 30 N. H. 500. And see Ormsby v. Budd, 72 Iowa, 8D.
33 N. W. 457. "Positive assertion of knowledge is not required. If a man
makes an untrue representation as of his own knowledge, not knowing
whether it be true or false, it is a fraud. The falsehood is intentional. And
an unqualified atflrmation amounts to an affirmation as of one's own knowl-
edge. Stone V. Denny, 4 Mete. (Mass.) 151; Wilder v. De Cou, 18 Minn. 470
(Gil. 421). The fraud is as great as if the party knew his statement to be
untrue. It is, in law, a willful falsehood for a man to assert, as of bis own
knowledge, a matter of which he has no knowledge. Kerr, Fraud & M. 54.
It is immaterial whether such statements were made innocently or know-
ingly. It is as fraudulent to affirm the existence of a fact about which one
Is in entire ignorance as it is to affirm what is false, knowing it to be so."
Bullitt V. Farrar, 42 Minn, 8, 43 N. W. 5(30; Martin v. Hill. 41 Mhm. 337, 43
N. W. 337; Montreal River Lumber Co. v. Mihills, 80 Wis. 540, 50 N. W. 507;
Leavitt v. Slzer, 35 Neb. 80, 52 N. W. 832; Totten v. Burhans, 91 Mich. 495,
51 N. W. 1119; I»help8 v. Smith. 110 Ind. :«7. 17 N. E. 602; Bartholomew v.
Pierson, 112 Ind. 430, 14 N. K. 249; Stix v. Sadler, 109 Ind. 254, 9 N. E. 905;
Indianapolis, P. & C. Ry. Co. v. Bush. 101 Ind. 582; Pittsburgh, C. & St. L.
Ry. Co. V. Spencer, 98 Ind. 180; Dixon v. Duke, 85 Ind. 434; Slauter v. Pa-
Ch. 9] DECEIT* 565
that he had no such knowledge." ■* Although the party making the
representation may have had no knowledge of its falsity, yet he will
be equally responsible if he had no belief in its truth, and made it
"not caring whether it was true or false." *•
FaUe Statement without KnowMge, but with Negligence.
Where, however, there is neither knowledge of falsity nor actual
intention to deceive, but a misrepresentation in fact, on which an-
other acts to his damage, the courts of England and of this country
are not in entire harmony with each other, nor with themselves, as
to the rule of liability. There may be both negligence in making
the statement and negligence bb to the information on which the
statement is based.*^
vorite. 107 Ind. 291, 4 N. E. 880; Furnas v. Friday, 102 Ind. 129, 1 N. E. 29<J;
West V. Wright. 98 Ind. 3a'»; Roller v. Blair, 90 Ind. 203; Betbell v. BetUell.
92 Ind. 318: Brooks v. Riding, 46 Ind. 15; Krewson v. Cloud, 45 Ind. 273;
Booher v. Goldsborough, 44 Ind. 490; Frenzel v. Miller, 37 Ind. 1; Fisher v.
Mellen, 103 Mass. 503; Brownlie v. Campbell, 5 App. Cas. 925; Slim v.
Croucher, 1 De Gex, F. &, J. 518; BuUis v. Noble, 36 Iowa, 618; Raley v.
Williams, 73 Mo. 310; Oregon Ry. Co. v. Oregon Uy. & Nav. Co., 10 Sawy.
464, 22 Fed. 245; Cragie v. Hadley, 99 N. Y. 131, 1 N. E. 537r Cox v. HIghley.
100 Pa. St 249. In an action for falsely representing to plaintiff that tlic
forged indorsement of a check paid by the latter was genuine, defendant is
not liable if he acte<l in good faith, and it need not appear that he had ade-
quate reason for his belief. Lamberton v. Dunliam, 165 Fa. St. 129, 30 Atl.
716.
3 6 Per Steele, J., In Cabot v. Christie, 42 Vt. 121, 126-127, citing Taylor v.
Ashton, 11 Mees. & W. 418; Hammatt v. Emerson, 27 Me. 308-326; Bennett
V. Judson, 21 N. Y. 238; Stone v. Denny, 4 Mete. (Mass.) 151; Hazard v. Ir-
win, 18 Pick. (Mass.) 95.
86 Per Smith, .1., in Joliffe v. Bilker. 11 Q. B. Div. 255-275; Haycraft v.
Creasy, 2 East, 92. Per Lawrence, .1., In Rex v. Mawbey, 6 Term R. 619-(W7.
«T The question for liability for negligence may arise in connection with
the subject of misrepresentation in two ways: The negligence may come in
at two different stages: (1) In the formation of the belief which the rei)re-
sentation expresses; as where the defendant knows that he is representing
the existence of certain facts, and believes his representations to be true, but
has been guilty of carelessness in not sufficiently examining the ground of
his belief, a reasonable examination of which would have disclosed the real
state of things. (2) In the expression of the belief, or, in other words, in the
act of making the representation, as where the defendant, knowing that cer>
56G MALICIOUS WKONUS. [Ch. 9
Same — English Rule.
The main current of English authorities is to the effect that an
action for damages for deceit cannot be maintained, except upon
proof that the statement made was false in fact and fraudulent in
intent; in other words, actual knowledge of the falsity, or actual
fraud, is essential, and mere negligence in not acquiring such knowl-
edge or in expressing belief will not sulBce,'* and an action of deceit
will not lie in respect of a negligent, as distinguished from a fraud-
ulent, misrepresentation.*^ The leading case on the subject is Derry
V. Peek,*® where it was held that the directors of a company were
not liable to persons who had bought shares on the faith of a pros-
tiiin facts do not exist, forgets that bis language or conduct wiU he reason-
ably construed as a representation of tbe existence of such facts, tbe negli-
gence consisting in tbe making of a deceptive statement wbicb he baa no
intention of making at all.
88 Smitb, J., in .Tollffe v. Baker, 11 Q. B. Div. 274; Dickson v. Reuter*8 Tel.
Co., 3 C. P. Div. 5, per Brnmwell, L. J.; Taylor v. Asbton, 11 Mees. & W.
418; Wilde y. Gibson, 1 H. L. Cas. 605^-633, per Lord Campbell.
3tt Angus v. ClifTord [1801] 2 Ch. 44G. Defendants, directors of a mining
company, in a prospectus slated that certain reports of experts as to the
yalue of tbe company's pi-oporty bad been prepared "for the directors.**
PlalntllT took sbiires on tbe faith of this statement. Tbe report in question
had been made by the insti-uction and in tbe interest of tbe vendors of the
mine, and not of tbe directors. It was held that, as it appeared that tbe di-
i*ectors had used the statement carelessly, and not with intent to deceive,
an action of deceit would not lie (fki I^w T. [N. 8.] 084, and 39 Wkly. Rep.
252, reversed). Angus v. Clifford, supra. "The gist of the action is fraud
in the defendants, and damage to the plaintiff. Fraud means an intention
to deceive. If there was no such intention, if tbe party honestly stated bis
opinion, believing at the time that be stated the truth, be is not liable in
this form of action, although the representation turned out to be entirely
untrue." Loixl v. Goddard. 13 How. 198. Guilty knowledge and intent to
deceive were essential to plaintiff's recovery. Graham v. Hollinger, 46 Pa.
St. 55. And see Collins v. Evans, 5 Q. B. 820-826; Behn v. Kemble, 7 C. B.
<N. S.) 260; ,Thom v. BIglaud, 8 Exch. 725; Chllders v. Wooler, 2 El. & KI.
287. But see Fuller v. Wilson, 3 Q. B. 58, 1009. With respect to dispute
between courts of queen's bench and exchequer, see Fuller v. Wilson, 3 Q.
B. 58; Evans v. Collhis, 5 Q. B. 820; Ormrod v. Huth, 14 Mees. & W. 651.
And cf. Taylor v. Ash ton, 11 Mees. & W. 401; Shrewsbury v. Blount, 2 Man.
& G. 475; WesteiTi Bank v. Addie, L. R. 1 H. L. Sc. 145-162.
*o L. R. 14 App. Cas. 337-374, 61 Law T. (N. 8.) 265, 58 Law J. Ch. (N. S.)
Ch. 9] DECEIT. 567
pectus. This prospectus represented that the company had power
to operate tramways by steam. The representation proved to be
false in fact. It was held that the mere negligence in making the
statement was not the basis for an action for deceit, notwithstand-
ing its falsity, although it may afford evidence of fraud. Lord Her-
schell said : **I think the authorities establish the following proposi-
tions: First, in order to sustain an action of deceit, there must be
proof of fraud, and nothing short of that will suffice. Secondly,
fraud is proved when it is shown that a false representation has
been made (1) knowingly, or (2) without belief in its truth, or (3)
recklessly, careless whether it be true or false. Although I have
treated the second and third as distinct cases, I think the third is
but an instance of the second, for one who makes a statement under
such circumstances can have no real belief in the truth of that he
states. To prevent a false statement from being fraudulent, there
must, I think, always be an honest belief in its truth. And this
probably covers the whole ground; for one who knowingly alleges
that which is false has obviously no such honest belief. Thirdly,
if fraud be proved, the motive of the person guilty of it is immate-
rial. It matters not that there was no intention to cheat or injure
the person to whom the statement was made." The conclusion
reached was that, while there was a moral duty imposed on those
who put before the public a prospectus to induce others to embark
their money in a commercial enterprise, to be vigilant to see that it
contained such representations only as are in strict accordance with
facts, a special intervention of legislature would be required to con-
vert this moral duty into a legal duty.*^ The rule adopted by the
864. Cf. Cotton, L. J., In same case, 37 Ch. Div. 541-568, 59 Law T. (N. S.)
78. "Where a man makes a false statement to induce another to act upon
It, without reasonable ground to suppose it to be true, and without tal£:ln^
care to ascertain whether It is true, he is civilly liable as much as a person
who commits what is usually called fraud, and tells an. untruth knowing it
to be an untruth. Sir J. Hannen, at page 578, 37 Ch. Div. Cf. Weir v. Bell,
3 Exch. Div. 243; Dickson v. Reuter's TeL Co., 3 C. P. Div. 6.
*i Lord Herschell, J., in Derry v. Peek, L. R. 14 App. Cas. 337; Clerk & L.
Torts, 412-631. An article on liability for false reprcsentations where no In-
tention to deceive was shown, but where negligence only on the part of the
person making them was proven. Justice of the Peace. Republished in 28
Ir. Law T. 33.
568 MALICIOUS WRONGS. [Ch. 9
house of lords, in Derry v. Peek, however, has been generally criti-
cised both in England ** and America.**
The American Ride,
In Illinois, Chief Justice Craig, in Schwabacker v. Riddle,** said :
"We are aware of no authority which will sanction a recovery in
an action for deceit, unless a false representation has been made
knowingly with intent to deceive." In Massachusetts, the rule is
that there can be no recovery unless the representations were known
*2 Cierk & L. Torts, Append., to the effect that It is doubtful whether this
rule is consistent with Burrowes v. Lock, 10 Ves. 470, and Slim v. Croucher, 1
De Gex, F. & J. 518; and that the rule of this case wUl not be extended be-
yond the point to which authority compels its application, and that such
cases of implied representations wiU be referred to as anomalous exceptions
to the general rule. London Law J. July 6, 1890. "The extension attempted,
from giving the effect of fraud to statements made in reckless ignorance of
the truth or falsehood, to mistaken statements honestly made, ignores the
element of intention in fi'aud. A mistaken statement honestly made may
give a ground for the rescission of a contract, but not for affixing to the
whole contract the iU savor of fraud. Upon the rescission of a contract,
the rights of the parties can be adjusted, but fraud cuts down everything,
and exposes those guilty of it to the stringent and, if successful, degrading
remedy by an action of deceit. Commercial morality is better forwarded by
following a level standard, than by setting up the unattainable in everyday
life, and calling things by names which would be scouted by the social opin-
ion of honorable business men."
48 **Tbe faith of Investors in corporate securities has received many shocks
from many directions, but it is not easy to imagine any quiet blow more
likely to be more general and severe in its results than wlU be given by the
distinct understanding on the part of the business world that specific state-
ments signed by the directors, in a prospectus issued to induce investment,
do not mean that the directors have even reasonable ground to believe what
they sign to be true. Investors are to understand that, if they come to grief
by relying on such prospectuses, they have no redress by showing that the
statements were false, that the directors might have known their falsity by
proper attention, nor even by showing that the directors had no reasonable
ground to believe their statements to be true." Mr. Austin Abbott, in the
DaUy Register. And see 23 Am. Law Rev. 1007.
4*09 111. 343-348; Wachsmuth v. Martini, 45 111. App. 244; Knight v
Gaultney, 23 111. App. 376; Ward v. Luneen, 25 111. App. 164; Antle v. Sex-
ton, 137 III. 410, 27 N. E. 691. But see Case v. Ayers, 65 IU. 142; Angus v.
Clifford [1891] 2 Ch. 449; Da Lee v. Blackburn, 11 Kan. 190.
Ch. 9] DECEIT. 669
by the defendant to be false, and were made with intent to deceive,**
or were made as of the defendant's own knowledge, when he did
not know them to be true.** The federal courts of the United
States have recognized that a positive statement as of the defend-
ant's own knowledge, recklessly made without knowledge of its
truth, is actionable if false, and it need not be alleged that the rep-
resentation was fraudulently made with intention to induce the
plaintiff to act.*' The general spirit of American decisions accords
with this rule.*®
4» Nowlan v. Cain, 3 AUen (Mass.) 2G3; Brown v. Rice, 26 Grat. 467; Hull
V. Fields, 76 Va. 607; Peek v. Derry (1887) 37 Ch. Dlv. 541, overruled In
Derry v. Peek (1889) 14 App. Cas. 337.
*e Knowlton, J., In Nash v. Trust Co., 159 Mass. 437-440, 34 N. E. 625. In
this case Derry v. Peek, 14 App. Cas. 337, was cited with approval. And see
Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 18 N. E. 168; Burns v. Dock-
ray, 156 Mass. 135, 30 N. E. 551. However, In Goodwin v. Trust Co., 152
Mass. 189-202, 25 N. E. 100. it was said that the Massachusetts rule is not
"precisely that declared by the house of lords in Derry v. Peek." Cf. rule in
Litchfield v. Hutchinson, 117 Mass. 195. As to the latter part of the rule,
see, also, Fanners* Stock-Breeding Ass'n v. Scott, 53 Kan. 534, 36 Pac. 978.
4T Cooper V. Schleslngpr, 111 U. S. 148-155, 4 Sup. Ct. 360. And see Barnes
V. Union Pac. Ry. Co., 4 C. C. A. 199, 54 Fed. 87; Lynch v. Mercantile Trust Co.,
18 Fed. 486. "To hold a person liable as for a fraud in making a representa-
tion, the jury must be satisfied that he did not actually believe the facts to be
as represented, or that he had no reasonable ground for supposing them as rep-
resented." Thayer, J., in Glaspie v. Keator, 5 C. C. A. 474, 56 Fed. 203-210,
citing Humphrey v. Merriam, 32 Minn. 197, 20 N. W. 138; Savage v. Stevens,
126 Mass. 207; Bennett v. Judson, 21 N. Y. 238; Buford v. Caldwell, 3 Mo.
477-i80; Barnes v. Railway Co., 4 C. C. A. 199, 54 Fed. 87. "The party sell-
ing property must be presumed to know whether the representation whicl)
he makes of It Is true or false. If he knows it to be false, that is fraud of
the most positive kind; but if he does not know it, then it can only be from
gross negligence. And in contemplation of a court of equity, representations
fQunded on mistake, resulting from such negligence, is fraud. 6 Yes. 180,
189; Jeremy, 385, 386. The purchaser confides in it, upon the assumption
that the owner knows his own property, and truly represents It; and, as well
argued in the case in Cranch (McFarren v. Taylor. 3 Cranch, 281), it is Im-
material to the purchaser whether the misrepresentation proceeded from mis-
take or fraud. The injury to him is the same, whatever may have been the
motives of the seller.*' Smith v. Richards, 13 Pet 38. And see Jewett v.
«8 See note 48 on following page.
570 MALICIOUS WRONGS. £Ch. y
188. The ftlse representation may be —
(a) Expressed, or
(b) ImpUed.
Express Misrepresentation,
The simplest case of deceit is that of express statements by one
person to another, false in themselves, made knowingly, with in-
Carter, 132 Mass. 335; Cole v. Gassidy, 138 Mass. 437; Masson y. BoTet, 1
Denio (N. Y.) «9-73; Lockbridge v. Poster, 4 Scam. (lU.) 569; Jolce v. Tay-
lor, 6 GiU & J. (Md.) 54-58; McFerran v. Taylor, 3 Cranch (U. S.) 270;
Doggett V. Emerson, 3 Story, 700-732, 733, Fed. Gas. No. 3.960; Barrowee t.
liock, 10 Ves. 470-475; Ay re's Case, 25 Beav. 513; Sears y. Hicklin, 13 Colo.
143, 21 Pac. 1022; Halght v. Hayt, 19 N. Y. 404; Stevens v. Allen, 51 Kan. 144.
32 Pac. 922; Antle v. Sexton. 137 111. 410. 27 N. E. 691.
48 It has been held in Wisconsin that it is immaterial whether the misre|>-
resentatioDs were made willfully or not. Cotzhauscn y. Simmons, 47 Wis.
103, 1 N. W. 473. And see Davis v. Nuzum, 72 Wis. 439, 40 N. W. 497; Mc-
Kennou v. YoUmar, 75 Wis. 82. 43 N. W. 800. This general doctrine is ap-
proved in Montreal River Lumber Co. v. Mihills, 80 Wis. 540, 50 N. W. 507,
la which the court say: ''Undoubtedly, it is a question upon which courts are
not all in harmony, not even with themselves." In Burke v. Railroad Co.,
Ki Wis. 410, 53 N. W. 602, the auditor of a railroad <;ompany represented to
plaintiff that the shortage of a certain station agent was a certain amount,
and that, on the payment of that sum, the agent would be retained by the
company. On the strength of such representation plaintiff advanced the
money to replace the shortage. The agent's shortage was afterwards found
to be double the amount represented, and he was discharged by the com-
i)any; and it was held that plaintiff was entitled to recover the money paid
on the false representation, though the auditor believed it to be true at the
time he made it. In Ross v. Hobson (Ind. Sup.) 26 N. E. 775, it was held that
a person who has made representations charged to be false cannot show in de-
fense that he was not informed In regard to the matters represented. And
«ee Kirkpatrick v. Reeves, 121 Ind. 280, 22 N. E. 139. In Hexter v. Bast,
125 Pa. St. 52, 17 Atl. 252, Judge Clark held that, as a general rule, the state-
ment must be both false and fraudulent, but that the fraud may consist In
representing that one knows that of which he is in fact consciously ignorant
And In Grlswold v. Gebbie, 126 Pa. St. 353, 17 Ati. 673, Judge Mltch^l h^d
that a reckless assertion of a material matter shown to be false, made in en-
tire ignorance, throws on the defendant the burden of showing his belief in
the truth of the representation. In Michigan, the rule seems to be settled
that it is immaterial whether a false representation is made innocently or
fraudulently, if by its means the plaintiff is injured. Holcomb v. Noble, 69
Mich. 396, 37 N, W. 497. Accordingly, in an action to recover the amount
Ch. 9] DECEIT. '^71
tent to deceive, in reliance on whicli the latter acts to his dam-
age.** Thus, in Barley v. Walford,'^ "the plaintiff sent to the de-
fendant some samples of printed handkerchiefs with a view to ob-
taining orders from him. The defendant told him that the design
he had printed was a registered one, and that the owner of it was
going to proceed against him for an injunction. The plaintiff, in
consequence, was put to considerable expense in proceeding to Lon-
don to make inquiries. The statement was false. Another ele-
ment of damage was that the defendant, having delayed the plain-
tiff's manufacture, made use of the design himself, and obtained
the command of the market which the plaintiff would otherwise
have had for his wares. There was an averment that the defend-
ant knew the statement was false, and that he knowingly and
willfully uttered it; .and the court held that the plaintiff had
stated a good cause of action. Here the statement was made ex-
paid far a cod tract appointing plaintifT general agent in certain counties, be-
cause of misrepresentations, evidence as to whetlier defendant intended any
fraud is admissible, and the result to plaintiff is the same whether defendant
acted In good or bad faith. Angell v. Loomis, 07 Mich. 5, 55 N. W. 1008.
False representations by one selling out his business, whether innocently or
fraudulently made, that certain accounts included in the sale of his interest
were collectible, entitle the purchaser to damages. Totten y. Burhans, 91
Mich. 405, 51 N. W. 1110. The Minnesota rule as to deceit is stated in Bus-
terud V. Farrington, 3G Minn. 320, 31 N. W. 360: "An action for deceit lies
against one who makes a false representation of a material fact susceptible
of knowledge, knowing it to be false, or as of his own knowledge, when he
does not know whether it is true or false, w^lth intention to induce the per-
son to whom it is made, in reliance upon it, to do or refrain from doing some^
thing to his pecuniary hurt, when such person, acting with reasonable pru-
dence, is thereby deceived and induced to so do, or refrain, to his damage.'*
Bullitt V. Farrar, 42 Minn. 8, 43 N. W. 5(5G; Klefer v. Rogers, 19 Minn. 32-36
<Gil. 14). And, generally, see Litchfield v. Hutchinson, 117 Mass. 195-lOS;
Hazard t. Irwin, 18 I»iok. (Mass.) 96; Savage v. Stevens, 126 Mass. 207;
Frost V. Angler, 127 Mass. 212.
*» McGibbons v. Wilder, 78 Iowa, 531, 43 N. W. 520.
50 9 Q. B. Div. 197. A seller's false statement that the stock he is offering
has always paid a certain rate of dividends Is a positive statement of a mate-
rial fact, which may be actionable in deceit. Handy v. Waldron (R. I.) 29
AtL 143. See, also, McOlellan v. Scott, 24 Wis. 81; Griffin v. Farrier. 32
Minn. 474, 21 N. W. 553; Ciuess v. Fessler, 39 Cal. 336; Chrysler v. Cana-
day, 90 N. Y. 272; Eaton v. Winnie, 20 Mich. 165, 166. Post, note 16.
572 MALICIOUS WRONGS. [Ch. ^
pressly to the plaintiff." *^ Among the principal questions which
arise in this connection is the construction of the words of the mis-
representation. The proper construction is not necessarily the
literal one. "If a person makes a representation of that which is
true, if he intend that the party to whom the representation i»
made should not believe it to be true, that is a false representa-
tion." ^^ Moreover, an express statement may involve an actiona-
ble concealment. "Suppose you state a thing partially, you make
as false a statement as if you misstated it altogether. Every word
may be true, but if you leave out something which qualifies it, you
may make a false statement. For instance, if, pretending to set oat
the report of a surveyor, you set out two passages in his report,
and leave out a third passage which qualifies them, that is an
actual misstatement." "" But the alleged misrepresentation re-
ceives a fair construction under the usual rules, and will not be
strained beyond the fair purport of the worda Therefore, the mere
recommendation by a person interested in the construction of a
railroad, that a proposition for construction be accepted, is not a
representation on which an action for deceit can be maintained
by a bank which cashes a draft for the contractors, drawn by them
on the construction company, which made a contract with them.'*
^Vnd courts, if there is sufficient evidence of misrepresentation, in-
cline to submit the import of the statement for determination by
the jury.**" The test of express misrepresentation is not what the
defendant in his own mind intended, but what any one might rea-
sonably suppose to be the meaning of the words used.*' In order
Bi Vig. Toi-tB, 255. And see Stewart v. Steams. 63 X. H. 90.
62 Per Alderson, B., In Moens v. Ueyworth, 10 Mees. & W. 147-158b
53 Per James, L. J., In Arkwright v. Newbold, 17 Ch. DIv. 301, 3ia On the
other hand, where a retail merchant makes an untrae statement of his af-
fah-s to a mercantile agency, and the latter transmits to a wholesale firm a
statement still more favorable to the retail dealer, and the wholesaler sells
to the retailer, and Is unable to collect from him, the latter is not liablft for
deceit, since the credit was given on a statement which was different tnmx
the one published by him. Wachsmuth v. Martini, 154 111. 515, 39 N. E. 120.
6 4 Kelly V. Gould, 141 N. Y. 59t>, 3t> N. E. 320 (tWt Ilun, G39, 19 N. Y. Supp.
349. affirmed).
6B Powers V. Fowler, 157 Mass. 318, 32 N. E. IGO.
ee Cotton, L. J., in Arkwright v. Newbuld, 17 Ch. Dlv. 301-322. And se*
Ch. 9] DECEIT. . 573
to establish a case of false representation, it is not necessary that
things which are false shall have been stated as if they were true,
but where the representation of that which is true creates an
obvious impression which is false, as to one who seeks to profit by
the misrepresentation he has thus produced, it is a case of false
representation. ^ ^
Implied Misrepresentation,
Representations may be implied from conduct. *T!f one conducts
himself in a particular way, with the object of fraudulently in-
ducing another to believe in the existence of a certain state of
things, and to act upon the basis of its existence, and damage re-
sulted therefrom to the party misled, he who misled him will be*
just as liable as if he had misrepresented the facts in express terms.
* * * Thus, the representation of safety may be implied from
the issue of chattels for use, from the loan or gift of a dangerous
chattel, or it may be implied from the defendant's forgetting what
construction will be put on his conduct." Thus, leaving gates open
at a level crossing "amounts to a statement and a notice to the
public that the line at that time is safe for crossing." '* So, where
an owner of premises invites others to come thereon, it being rea-
sonable for the persons invited to infer from such invitation an in-
tention on the part of the owner to represent that, so far as he
knows, there is no hidden source of danger on the premises, the
invitation will amount to a representation to that effect; and if
the premises are in fact unsafe, by reason of a secret defect, ex-
isting to the owner's knowledge, and damage results from their un-
safe condition, the owner will be liable, none the less because, not
having the point present to his mind, he did not intend his invita-
tion to be so construed.** No doubt, in practice, the claim in such
Llndley, J., In Smith v. Chadwick, 20 Ch. DIv. 27-79, as to line of clistlnctlon
between negligence and ftaud on other points; Lord Blackburn in Smith v.
Chadwick, 20 Ch. Div. 79. And, generally, see Thorn y. Bigland, 8 Exch. 725.
5T Lomerson v. Johnston, 47 N. J. Eq. 312, 20 Atl. (»75.
8«Lord Calms, in North-Eastem R. Co. v. Wanless. L. R. 7 H. L. 12-15;
Farrant v. Barnes, 11 C. B. (N. S.) 553. And see post, p. 881, "Negiigeuce";
"Case with Reference to Custom.*'
c» Fry, L* J., in Cunnlngton v. Great Nortliem Ry. Co., 49 Law T. (N. S.)
302-3^.
574 . MALICIOUS WRONGS. [Ch. 5>
cases is never framed in deceit, but is simply charged as negli-
gence, but the omission in which the negligence consists, and which
lies at the bottom of the liability, is nothing else than a misrepre-
sentation of safety, whereby the plaintiff has been induced to act
to his own damage. But, though the practice is otherwise, there
seems to be no valid reason why actions of this nature should not
be framed in deceit It was probably a recognition of the close con-
nection between the action of deceit and the action for negligently
inducing another to act to his damage, which induced Willes, J^
to say, with reference to the liability of the owner of dangerous
premises towards a bare licensee, that "to create a cause of action,
something like fraud must be shown''; '^ and gave rise to the ex-
pression, which is fi-equently to be met, that the licensor is liable
only where the- condition of the premises was in the nature of a
"trap.'' 'i
In effect, it often occurs that the suit by the servant against the
master for failing to perform the duty of the master to the servant,
— as with respect to exercising reasonable care to furnish safe in-
strumentality, place, and fellow servants, — ^is essentially upon de-
ceit, rather than for negligence in its conventional sense; or, per-
haps, it is more accurate to say that here negligence and deceit
coincide. The master represents to the servant that he has per-
formed his duty in these respects. The servant has a right to rely
upon such representation, whether made in fact or implied by law.
Especially is it true that, where the servant, his suspicions being
aroused by appearances, complains to the master of the danger of
place, instrumentality, or fellow servant, and the master allays the
servant's fears by assurances of safety, as a matter of superior
knowledge, or promises to remedy the defect, and fails to do so, if
these representations are false in fact, and the servant's own con-
duct in failing to discover such defects or imperfections as he could
be reasonably held to find out, then he is entitled to recover for
consequent damages. And if the master has exercised good faith,
even then, although he exposed his servant to danger, there can be
«o Gail tret v. Egerton, L. It. 2 C. P. 371-375.
61 Clerk & L. Torts, 402, citing Boleh v. Siuith, 7 Hurl. & N. 736, per
Wilde, B.; Gautrot v. Egcrton, L. R. 2 C. P. 371-37-1, per Willes, J.; Corby
V. Hill, 4 O. B. (N. S.) 55G.
Ch. 9] DECEIT, 575
no recovery. Ordinarily, however, the law on this point is worked
out through the phraseology of negligence. Hence, this portion of
the law will be considered under that subject.
189. A false representation may consist in either or both —
(a) The assertion of a falsehood, or
(b) The suppression of the truth.
When a falsehood has been asserted, deceit is manifestly made
out But conduct may fall far short of the assertion of a false-
hood, and still be actionable as fraudulent. Thus, fraud may
be perpetrated by encouraging and taking advantage of a delusion
known to exist in the minds of others.®^
A misrepresentation does not consist in words alone, but may
grow out of the act of concealment of a material f act'* Thus, it was
held that deceit lay where the vendor of a house, knowing of a de-
fect in a wall, plastered it up and papered it over.**
«» Buschv. WUcox, 82 Mich. 315, 4« N. W. 940.
•* Chisholm v. Gadsden, 1 Strob. (S. C.) 220; Lobdell v. Baker, 1 Mete.
(Mass.) 103. And see Tryon v. Whitmarsh, 1 Mete. (Mass.) 1; Boyd's Ex'rs
V. Browne, 6 Pa. St 310; Decker v. Hardin, 5 N. J. Law, 579; Bokee v.
Walker, 14 Pa. St. 139; Rheem v. Nan^atuck Wheel Co., 33 Pa. St, ^jS; Miller
V. Gurtiss (Super. N. Y.) 15 N. Y. Supp. 140. Where a subscription for cor-
porate stock is obtained by the representation that a prominent business man
has subscribed for a large amount, and the fact that he paid nothing for his
stock is concealed, such concealment makes the representation fraudulent
Coles V. Kennedy, 81 Iowa, 300, 46 N. W. 10S8. Where, during negotiations for
the sale of land, defendant, the owner, assures plaintiff that the title is good,,
and conceals from her the report that his grantor was insane at the time
he parted with the land, and plaintiff on his representations pm'chased the
land, which is afterwards recovered from her by the guardian of the de-
fendant's grantor, who has been adjudged insane, such representations and
concealments are fraudulent Burns v. Dockray, 356 Mass. 135, 30 N. E. 551;
Firestone v. Werner, 1 Ind. App. 291^, 27 N. E. G23.
«» Cited in Pickering v. Dawson (1813) 4 Taunt. 779; Schneider v. Heath
(1813) 3 Camp. 506: "If I sell a horse which has lost an eye, no action lies;
but otherwise if I sell him with a counterfeit eye." Southerne v. Howe, 2
Kolle, 5. And see Hill v. Gray. 1 Starkie, 434.
576 MALICIOUS WRONGS. [Ch. 9
Suppi-ession of truth, where there is a duty to speak, is as much
a legal wrong as a positive falsehood.'* Therefore children who
permit a third person to purchase -land of their father in the be-
lief that he is mentally competent, and without any knowledge or
information to the contrary, are estopped from asserting his in-
competency in a suit brought by them, as his heirs, to set aside
«fl Allen V. Addington, 7 Wend. 9; Anon. (1876) 67 N. Y. 598; Hotchkias v.
Third Nat. Bank, 127 N. Y. 32U, 27 N. E. IOjO; Stewart v. Wyoming Cattle
Ranch Co., 128 U. S. aS3, 9 Sup. Ct lOL "As to whether there is a duty to
speak, on pain of being guilty of fraud by reason of silence," Peckliam, J.,
said, in Rothmiller v. Stein (N. Y. App.) 38 N. E. 718, ''certain rules have
been laid down by the coui't, which differ somewhat in their breadth and
scope with the different and varying circunistances under which they are
to be applied. The contract of marine or life insurance has been held to re-
quire the exhibition of the very highest good faith on the part of the person
desiring insurance, and he has been held liable for the concealment of any
material facts known to him to exist, although such concealment was not
fraudulent. On the other hand, in the case of a contract of guaranty, it has
been held that the concealment of a fact, in order to vitiate the contract,
must be fraudulent,— that is, concealed with a fraudulent purpoeie, with the
intent to deceive. North British Ins. Co. v. Lloyd, 10 Exch. 523; Kidney v.
Stoddard, 7 Mete. (Mass.) 252. In regard to sales of goods, the common law
has adopted a rule which is not so strict as in the above classes of contracts.
The great maxim, *caveat emptor,' is by this law applied in a variety of
cases, and, unless there be some misrepresentation or artifice to disguise the
thing sold, or some warranty as to its character or quality, the vendee is
bound by the sale, notwithstanding the existence of intrinsic defects and
vices, known to the vendor and unknown to the vendee, materially affecting
its value. 1 Story, Eq. Jur. (10th Ed.) §§ 212, 212a. This is the rule in re-
gard to those who deal at arm's length with each other, and between whom
there is no condition of sptjolal contidonc»e or fiducial relationship existing
In regard to the necessity of giving information which has not been asked,
the rule differs somewhat at law and in equity, and while the lower courts
would permit no recovery of damages against a vendor because of mere con-
cealments of facts under certain circumstances, yet, if the vendee refuses
to complete the contract because of the concealment of a material fact on
the part of the other, equity would refuse to compel him so to do, because
equity only compels the specific performance of a contract which is fair and
open, and in regard to which all material matters known to each have been
communicated to the other. Id. § 206. And the rule of caveat emptor, even
in regard to the sale of chattels, is applied with certain restrictions, and la
not permitted to obtain in a case where it is plain it was the duty of the
vendor to acquaint the vendee with a material fact known to the former and
Ch. 9] DECEIT. 577
the deed on that ground/' Suppression of truth may, moreover,
become actionable. Therefore concealment, by the owner of a busi-
ness enterprise, of a decline in its profits between the date of his
agreement to sell and the signing of the contract of sale, is action-
able when the purchaser has no opportunity to discover the de-
cline, and has agreed to buy on the faith of representations as to
the prior rate of profit, having told the seller that he would not buy
if there had been a decline.'® If, however, there be no duty to
disclose, failure to tell the truth is not actionable fraud.*** Thus
deceit does not lie for leasing a house required for immediate occu-
pation without disclosiug that it is in a ruinous condition.^^
180. An action for fraud or deceit does not lie where the
representation complained of consiBts merely in —
(a) An expression of opinion;
(b) A representation of law;
(c) A promise or representation as to future events.
Expression of Opinion,
Statements which purport to be mere opinion, as distinguished
from statements of facts, cannot be made the foundation of recov-
nnknown to the latter. It has heen held that it is the duty of one who is
about to seH a flock of Bheep to inform the intending pnrcliaser of the fact,
if it be known to the vendor, of the existence of a highly contagious disease
among the sheep to be sold, and that it is fraudulent suppression of a mate-
rial fact if it is knowingly concealed."
•T Angiell V. Loomls, »7 Mich. 5, 55 N. W. 1008. And see Kidney v. Stod-
dard, 7 Mete. (Mass.) 252. But see Cooley, Torts, 123.
«« Loewer v. Harris, 6 C. C. A. 394, 57 Fed. 368. And see French vi Vining,
102 Mass. 132. Cf. Wellington v. Downer Kerosene Oil Co., 194 Mass. 04.
And see Crowell v. Jackson, 53 N. J. Law, 656, 23 Atl. 426; Burns v. Dockray,
156 Mass. 135, 30 N. B. 551; Coles v. Kennedy, 81 Iowa, 360, 46 N. W. 1088.
A' purchase of stock from a stockholder at a low price, by an officer of the
corporation, is not fraudulent because such offlcei has knowledge in his offi-
cial capacity of favorable sales of other stock, which enhanced the value of
the stock generally, and of which fact the seller was Ignorant Crowell v.
Jackson, 53 N. J. I^w, 656, 23 Atl. 426.
«9 See Lord Cairns, in Peek v. Gurney, L. R. 6 H. L. 377.
TO Keates v. Lord Cadogan (1851) 10 C. B. 591. Cf. Smith v. Marrable a843)
11 Mees. & W. 5; Wilson v. Finch-Hatton (1877) 2 Exch. Div. 336; Sheldon
LAW OF TORTS— 87
578 MALICIOUS WRONGS. [Ch. 9
ery.'* "The misrepresentation must relate to alleged facts, or to
the condition of things as then existent. * • * It must be as
to matters of fact substantially affecting his (the aggrieved party's)
interest, not as to matters of opinion, judgment, probability, or ex-
pectation. An assertion respecting them is not an assertion as to
any existent fact. The opinion may be erroneous; the judgment
may be unsound ; the expected contingency may never happen ; the
expectation may fail."'* Thus, the phrase "worth so much" is a
mere expression of an opinion; '^ but to say that defendant "gave
so much for" specified property has been held to represent a fact.'*
So, to represent what dividends certain stock would pay in the
V. Davidson, 85 Wis. 138, 55 N. W. 161. Cf. Franklin v. Brown, 118 N. Y. 110,
23 N. E. 126. So, if defendant sell diseased pigs, under agreement tliat they
should be taken "with all faults," no action lies for failure to disclose condi-
tion. Ward V. Hobbs (1878) L. R. 4 App. Cas. 14.
71 Doiry V. Peek, L. R. 14 App. Cas. 337; La Llevre v. Gould [1893] 1 Q. B.
4D1; Buschman v. Codd, 52 Md. 202; Holbrook v. Connor, 60 Me. 578; Aetna
Ins. Co. V. Reed, 33 Ohio St. 283; Jenne v. Gilbert, 26 Neb. 457, 42 N. W. 415:
Fulton V. Hood, 34 Pa. St. 365; Haven v. Meal, 43 Minn. 315, 45 N. W. 612;
l>or}Ui V. Eaton, 40 Minn. 35, 41 N. W. 244; Rawson t. Harger, 48 Iowa, 269;
Tuck V. Dovnilng, 76 111. 71; Sheldon v. Davidson, 83 Wis. 138, 55 N. W. 161;
Crown V. Carriger, 66 Ala. 590; Belcher v. Ccstello, 122 Mass. 189; Nash v.
Minnesota TiUe Ins. & Trust Co., 159 Mass. 437, 34 N. E. 625, and cases dted
at page 440, 159 Mass., and page 625, 34 N. E.; Gordon v. Butler, 105 U. S.
553; Southern Development Co. v. Silva, 125 U. S. 249, 8 Sup. Ct^ 881; Saw-
yer V. Prickett, 19 Wall. 146; Benton v. Ward, 47 Fed. 253; Id., 59 Fed. 411;
Scrogin v. Wood, 87 Iowa, 497, 54 N. W. 437 (that a stallion would not pro-
duce soiTol colts). Cf. Peak v. Frost, 162 Mass. 298, SS N. B. 5ia
72 Appleton, C. J., in Long v. Woodman, 58 Me. 49, citing Pedridt v. Porter.
5 Allen, 324, to the effect that an action of tort for deceit in the sale of prop-
erty does not lie for iiialicious and fraudulent representation coucerning profits
that may be made in the future. Hazard v. Irwin, 18 Pick. (Mass.) 95.
7 8 Harvey v. Young (1002) 1 Yel. 21.
74 Lindsay Petroleum Co. v. Hurd (1S74) L. R, 5 P. O. 243. And see Coulan
V. Roomer, 52 N. J. I^aw, .")3, 18 Atl. 858; Smith v. Carlson, 36 Minn. 220, 30
N. W. 761; Sandford v. Handy, 23 Wend. 260; Van Epps v. Harrison, 5 Hill,
63; I*ugo V. Parker, 43 N. H. 363. But see Hemmer v. Cooper, 8 Allen, 334;
Ekins V. Tresham, 1 Lev. 102; Dobell v. Stevens, 3 Bam. & C. 623; Cooper
v. Ijovoring, 10() Mass. 79; Holbrook v. Connor, 60 Me. 578. But see dissent-
ing opinion of Dickerson, J., Bishop v. Small, 03 Me. 12. And see cases col-
lected in Cooley, Torts (2d Ed.) 50. Where a stock of merchandise in a retail
store was murkcHl in both letters and figures, and the price indicated by the
Ch. 9] DECEIT. 679
future is to express an opinion,''* but to represent that stock had
paid a specified rate of dividend at prior times is to state a fact.''*
The reason, apparently, is that "if any one relies on mere opinion,
instead of ascertaining facts, it is his own folly." '^ However, in
some cases an opinion is regarded as substantially a fact, for the
misrepresentation of which an action for deceit will lie. Thus, a
misrepresentation that "the parties were good** creates liability in
deceit on the part of persons making such statement, if they, are
not parties to the contract^* Indeed, perhaps the true view of the
law is that an expression of an opinion not honestly entertained,
and intended to be acted upon, cannot, in many cases, be regard-
ed otherwise than as a fraud.''* The fact that an opinion is a
state of the mind is no insuperable objection. "The state of a
man's mind is as much a fact as the state of his digestion. It is
true that it is very difficult to prove what is the state of a man's
mind at a particular time; but, if it can be ascertained, it is as much
letters was known only to the seller, representations as to what the private
marks indicated are not representations as to value, nor expressions of opinion.
Elerick v. Reid, 54 Kan. 579, 38 Pac. 814.
7 9 Robertson v. Parks, 76 Md. 118, 24 Atl. 411; Tbtten v. Burhans, 91 Mich.
495, 51 N. W. 1110.
7« Handy v. Waldron (R. I.) 29 AtL 143. And, generally, see Crane v. Elder,
48 Kan. 259, 29 Pac. 151; Chllds v. MerriU, 63 Vt. 403, 22 AtL 626; Winston
V. Tonng, 47 Minn. 88, 49 N. W. -VJl; ante, note 50.
77 Sieveklng v. Litzler, 31 Ind. 13.
7» Pasley v. Freeman, 3 Term R. 51; Robbins v. Barton, 50 Kan. 120, 31 Pac.
686; Blecher v. Costello. 122 Mass. 189; Kinkier v. Jurlca, 84 Tex. 116, 19 8.
W. 359; Medbury v. Watson, 6 Mete. (Mass.) 246; Pllcher v. Levlno (Sup.)
3f» N. Y. Supp. 314; Bustemd v. Farrington, 36 Minn. 320, 31 N. W. 360. And
see Marsh v. Falker, 40 N. Y. 562; Percival v. Harres, 142 Pa. St. 369, 21 Atl.
870; Dotly v. Campbell, 1 How. Prac. (N. S.) 101; Lyons v. Briggs, 14 R. I.
222; Redding v. Wright, 49 Minn. 322, 51 N. W. ia">6; Jude v. Woodburn, 27
Vt. 415; HubbeU v. Meigs, 50 N. Y. 480-489; HIckey v. Morrell, 102 N. Y.
454-463, 7 N. E. 321. But see Nevada Bank v. Portland Nat. Bank, 59 Fed.
338, disapproving Hopkins v. Cooper, 28 G a. 392, and Glover v. Townshend,
30 Ga. 92.
70 Willes, J., in Anderson v. Pacific Ins. Co., L. R. 7 C. P. 65, 69. But see
Lord Cairns, in Pe<jk v. Guemoy, L. R. 6 H. L. 377; Hickey v. Morrell, 102
N. Y. 454, 7 N. B. 321 (fireproof warehouse). Estimate of timber is a matter
of fact, not of opinion. Chase v. Bough ton, 93 Mich. 285, 54 N. W. 44, Grant,
J., dissenting. And see Glaspie v. Kcator, 5 C. C. A. 474, 56 Fed. 203. Rep-
'>S0 M ALIi lOC;^ frEM?(G9. [Cfa- 9
a fact a« anything else.^ ** Therefore, it is an actianable misrep-
ren^rntation for dir^^tors isnnin^ a prMKpet'tQs inritiiig sabscriptions
to reprrrft^-iit tliat faudK reallj to be ufted to par pressing debts are
Intended to \te ntwd in extending the business operations.*^ The
proper view of th^^fte cases is that there is an exception as between
\e'iidor and vendee/- Exaggerated praise is not actionable.**
Hence, statements as to value,** and '^ose vagne oonunendations
of ward's whic'li manifestly are open to difference of opinion, which
do not imply untrue assertions concerning matters of direct ob-
s^'rvation, and as to which it has always been understood the world
over that such statements are to be distrusted," are not action-
able.** Itut where land is given by the owner in trade with a
I>erHon loi-ated far away from such land, who accepts it as describ-
ed by the owner, without examining it, such person may recover
(or intentional misrepresentations made by the owner as to the con-
dition and value of the land.** An action for damages for falsi^
reiientatlons that a corporation Is "prosperous,** **weU organized," "doing a
large buslneHS,'* and the like have been held to be actionable, if (raadulently
maiUi as Htatements of fact and not of mere opinion. Nevada Bank v. Port-
:an<l Nat. Bank. r»9 Fed. :\'W. 8<>e. nlP". He*Hn t. InPtltnte YMlnn.) 64 N. W. 158.
•» Bowen, U J., in Edgington v. Fltzmaurice, 29 Ch. Div. 459.
•1 Kdglngton v. Fltzmaurice, supra. And see Jorden v. Money, 5 H. I«. Cas.
185.
•a Clerk & L. Tort«, 303.
"'» Columbia Electric Co. v. Dixon, 46 Minn. 463, 49 N. W. 244 (value of as-
HetK and patents of electric company are largely matters of opinion).
In other wordH, a certain amount of *'pufllng" is allowed. Directors v. Kisch,
L. K. 2 H. L. 01).
«* Hiianks V. Whitney, 6C Vt 405, 29 Atl. 367. Of. Baum v. Holton, 4 Colo.
A pp. 4(KI, :{« Pac. 154.
HB Holmes, J., in Demming v. Darling, 148 Mass. 504, 505, 20 N. E. 107;
Tenguo V. Irwin, 127 Mafls. 217; Harvey v. Young, Yel. 21a; 1 BenJ. Sales,
o. 2. See HIcknall v. Waterman, 5 R. I. 43; Gordon v. Parmelee, 2 Allen
<MaHM.) 214; Moouey v. Miller, 102 Mass. 217; Cooper v. Loverlng, 106 Mass.
77; HiHhop V. Small, (}.'{ Me. 12; Brown v. Leach, 107 Mass. 367; 8 Am. & Eng.
Kue. Law, p. 800, imd oases cited in notes 7 and 8. See, also, Story, Sales (2d
ICd.) n 3150, 3(M; Nasli v. Trust Co., 150 Mass. 437, 34 N. B. 625; Chandelor v.
liOpus, 1 Sniltli, I^ead. Cas. 204, and note on pages 320, 321. The law as to a
wwranty of value is well stated by Campbell, J., In Picard v. McCormack, 11
Mich. 73.
•e Stevens v. Allen, 51 Kan. 144, 32 Pac. 022; Henderson v. Henshall. 4 C.
Ch. 9] DECEIT. 581
representations as to title, made in the sale of lands, may be main-
tained, though the deed contained.no covenants.'^ The doctrine
of caveat emptor ia not applicable in an action for damages' for
inducing the plaintiff, by false representations, to take an assign-
ment of a lease executed by one who had no title to the land/*'
RepresentatioTu of Law*
A misrepresentation of law is not considered as amounting to
fraud, because, as it is generally said, all persons are presumed to
know the law; and it might perhaps be added that such a state-
ment would rather be the expression of an opinion than the asser-
tion of a fact.** Therefore the representations by the agent of a
corporation that its stock is not assessable beyond a certain per
C. A. 357, 64 Fed. 320; Grifflng v. DUler. 66 Hun, 633, 21 N. Y. Supp. 407.
'*WheneTer a sale is made of a property not present, but at a remote dis-
tance, which the seller knew that the purchaser has never seen, but which
he buys upon the representation of the seller, relying on its truth, then the
representation in effect amounts to a warranty, at least that the seller will
make good the representation." Smith v. Richards, 13 Pet. (U. S.) 26; Harris
▼. McMurray, 23 Ind. 9; McCuUen v. Scott, 24 Wis. 84; Bolds v. Woods, 9
Ind. 657. 36 N. B. 933.
«T Barnes v. Union Pac. Ry. Co., 4 C. C. A. 199, 54 Fed. 87; Saguin v. Sied-
entopf, 88 Iowa, 723, 54 N. W. 430.
«8 Cheney v. PoweU, 88 Ga. 629, 15 S. E. 750; WlUlamson v. Woten, 132
Ind. 202, 31 N. E. 791; Speed v. HoUingsworth, 54 Kan. 436. 38 Pac. 496;
Fargo Gas & Coke Co. v. Fargo Gas & Electric Co. (N. D.) 59 N. W. 1066;
Brady v. Finn, 162 Mass. 260, 38 N. E. 506; Bloomer v. Gray, 10 Ind. App.
326, 37 N. E. 819; Davis v. Jenkins, 46 Kan. 19, 26 Pac. 459.
88 2 Pom. Eq. Jur. 877. And see Bank of U. S. v. Daniel, 12 Pet. 32. "A
representation of what the law will and will not permit t^ be done is one ou
which the party to whom it is made has no right to rely, and, if he does so,
it is his own folly, and he cannot ask the law to relieve him from the con-
sequences. The truth or falsehood of such a representation can be tested
by ordinary vigilance and attention. It is an opinion in regard to the
law, and is always understood as such." Fish v. Cleland, 33 111. 238. And
see Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Townsend v. Cowles, 31 Ala.
428; Leham v. Shackleford, 50 Ala. 437; The Belfast v. Boon, 41 Ala. 50;.
Mayhew v. Phamix Ins. Co., 23 Mich. 105; Clem v. NewcaHtle & D. R. Co.,.
9 Ind. 488; Burt v. Bowles, 69 Ind. 1; Thompson v. Phoenix Ins Co.. 75 Me.
55; Gormely v. Gymnastic Ass'n ot South Side, 55 Wis. 350, 13 N. W. 242;
Jaggar v. Winslow, 30 Minn. 263, 15 N. W. 242; People v. San Francisco, 27
Cal. 655; Lexow v. Julian^ 21 Hun, 577; Starr v. Bennett, 5 Hill, 303; Lewis
y. Jones, 4 Barn. & C. 506; 2 Aust. Jur. 172; Kerr, Fraud & M. 397. As to
582 MAUCIOI'S WRONGS. ffch. 9
cent, of its value eonstitates no defense to an action, against holders
pf the stock, to enforce payment of the entire amount subscribed,
where he has failed to upe due diligence to ascertain the truth w
falsity of such representations.** The line of distinction, however,
between a statement of a fact and a statement of law, is often in-
distinct. ^'There is not a single fact connected with personal status
that does not more or less involve a questlcm of law. * * * It
is not less a fact because that fact involves s<Mne knowledge or rela-
tion of law." *^ Ignorance of the law signifies ignorance of the laws
of one*s own country.*' Ignorance of the laws of a foreign govern-
ment is ignorance of fact.*' Therefore an immigrant just arrived,
meeting an old citizen, who professes familiarity with the law of
land titles of the country, may successfully complain of a misrepre-
sentation as to the title of land.*^
Promise,
A malicious representation or concealment must be of an existent
fact.** A representation or assurance in relation to a future event
rescission of contract for misrepreflentatlon of law, see Upton v. Tribilcock,
91 U. S. 45.
•0 Upton V. Tribilcock, 91 U. S. 45 (this leading case has oeen cited with
approval more than 30 times in various federal r^orts).
•1 Jessel, M. R., in Eaglesfleld v. Londondeiry (1876) L. R. 4 Ch. Div. 69^
703. And see West London (3om. Banlc v. Kitson, 13 Q. B. Div. 300. So,
misrepresentation to a depositor that the directors and stockholders of a
bank are personally liable may be actionable. Westervelt v. Demarest, 46
N. J. lAW, 37; Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161.
•« Storrs V. Barker, 6 Johns. Ch. 166-160.
»« Haven v. Foster, 9 Pick. (Mass.) 112-130.
»* Morland v. Atchinson, 19 Tex. 303. Cf. Abbott v. Treat, 78 Me. 121-126,
3 Atl. 44. And see Cheney v. Powell, 88 Ga. 629, 15 S. E. 750.
0s Representations as to the harvest which a given land would raise cannot
be regarded as fraudulent. Holton v. Noble, 83 CoL 7, 23 Pac. 58. And see
Morey v. Miller, 102 Mass. 217. Nor a vendor's assurance that a dam would
always continue to furnish a full amount of power in the future, where the
vendee had equal opportunity for estimate. Morrison v. Koch, 32 Wis. 254;
Potterson v. Wright, 64 Wis. 289-291, 25 N. W. 10. Promises as to what a
quaitz mill will pay are not actionable. Pedrick v. Porter, 5 Allen (Mass.)
324. While representations as to past business are material and actionable,
it is in general otherwise as to future profits. Markel v. Moudy, 11 Neb. 213,
7 N. W. 853. And see Com. v. Mechanics' Ins. Co., 120 Mass. 496. Cf. Pni-
Ch. 9] DECEIT. 583
i8 not, in the criminal law, a false pretense.** On the same prind-
ple, an actionable misrepresentation must relate to a present or past
state of facts, and an action of deceit does not lie for failure on the
part of a promisor to perform a promise made by him to do some-
thing in the future, which he does not intend to do, and subsequently
refuses to do, although the promisee has so altered his position, in
reliance on such promise, that he is thereby damaged.*^ Therefore,
where a vendee of goods promises to give a good and sufficient bond
to reeonvey,** or to indorse the note of another if the vendor would
dential Assur. Co. t. Aetna Life Ins. Co., 23 Fed. 438; Hale v. Continental
IJfe InH. (jo:, 12 Fed. 350. But see Rohrschneider v. Knickerbocker Life Ins.
Ck>., 70 N. Y. 216; MUler t. Barber, 66 N. Y. 558; United States Ins. Co. v.
Wright; 33 Ohio St. 533. Proposed plans were relied on in the purchase of land
on which houses were to be built, and it was held that the representations
were as to the future, and therefore not binding. Squire v. Campbell, 1
Mykie & C. 459; Dawe v. Morris, 149 Mass. 188, 21 N. E. 313; Knowlton v.
Keenan, 146 Mass. 86, 15 N. E. 127; Saunders v. MeCllntoek, 46 Mo. App. 216;
Gage V. Lewis, 68 lU. 604; Lawrence v. Gayetty, 78 Cal. 120, 20 Pac. 382;
Haenni v. Bleisch, 146 111. 262, 34 N. E. 153; Gray v. Manufacturing Co., 127
111. 187, 19 N. E. 874; WiUiams v. Kerr, 152 Pa. St. 500, 25 Atl. 618; Moore v.
Cross (Tex. Civ. App.) 26 S. W. 122.
BO State V. Magee, 11 Ind. 154. And see Ranney v. People, 22 N. Y. 413.
B7 Fenwick v. Grimes, 5 Cranch, C. C. 439, Fed. Cas. No. 4,733; Robertson v.
Parks, 76 Md. 118, 24 Atl. 411; Patterson v. Wright, 64 Wis. 289, 25 N. W. 10;
Bigelow, Frauds, 11, 12. This is a part of the general proposition that repre-
sentations having reference merely to the future constitute no ground of ac-
tion or defense. Saunders v. McClintock, 46 Mo. App. 216; Robertson y.
Parks, 76 Md. 118, 24 Atl. 411.
08 Long V. Woodman, 58 Me. 49. So if vendor promises to pay off incum-
brances, and that his wife should join in a deed. Burt v. Bowles, 69 Ind. 1-0.
"I have always understood it to have been decided In Jorden y. Money, 5
H. L. Cas. 185, that the doctrine of estoppel by representation is applicable on'y
to representations as to some state of facts alleged to be at the time actually
in existence, and not to promises de futuro, which, if binding at all, must be
binding as contracts." Madson v. Alderson, 8 App. Cas. 467-473. In Jorden
y. Money, 5 H. L. Cns. 185 (and see 6 H. L. Cas. 380, 10 H. L. Cas. 677), a
father who could have set aside a deed to L. for want of consideration did not
do so because li. agreed that she would never sue the father's son, about to
be married, on certain bonds. Accordingly, the father allowed the conveyance
to stand, and died. The misrepresentation was held not to be of existing facts,
but of intention, and therefore of no legal effect. And see Insurance Co. y.
Mowry, 96 U. S. 544; Insurance Co. v. Eggleston, Id. 572-578; Allen y. Bundle,
584 MALICIOUS WRONGS. [Ch. 9
sell him the goods,** or to deliyer possessiim of premisefi at a future
day,*** the vendor cannot recover upon the vendee's failare to per-
form his promiHe, notwithstanding his damage, and the vendee's
fraudulent intention."*
50 Conn. 0; Jackson v. Allen, 120 Mass. 64» 79; Langdon v. Doud, 10 Allen
(Mass.) 433.
9» Gallager v. Brunei, 6 Cow. 346. A representation by defendant that plain-
tiff could have possession of a certain building on property leased to plaintiff
on a certain date, several months after the making of such representation, is
not actionable, though such event did not occur. In that it relates to a future^
or not to a past or present event Sheldon v. Davidson (Wis.) 55 N. W. 161.
And see Robertson v. Parks, 76 Md. 118, 24 Atl. 411. So where a retiring
officer promises to pay an, overdraft which he induced his successor to cluirge
to himself. State v. Prather, 44 Ind. 287.
100 Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161. And see Morrison v.
Koch, 32 Wis. 254, where it was held not to be an actionable misrepresentation
that a certain dam would always in the future continue to furnish the fuU
amount of power conveyed.
101 And see Gage v. Lewis, G8 111. 604; Hazlett v. Burge, 22 Iowa, 535; Lexow
V. Julian, 21 Hun (N. Y.) 577; Starry v. Korab, 65 lowft; 267, 21 N. W. 600;
Farrar v. Bridges, 8 Humph. (Tenn.) 566; Welz v. Rhodius, 87 Ind. 1; Sievek-
ing V. Litzler, 31 Ind. 13; Shropshire v. Kennedy, 84 Ind. Ill; Fenwlck v.
Grimes, 5 Cranch, 0. C. 430, Fed. Gas. No. 4,733; Dawe v. Morris, 149 Mass.
188, 21 N. E. 313. **The law gives a different effect to a representation of ex-
isting facts from that given to a representation of facts to come into existence.
To make a false representation the subject of indictment or action, two things
must coincide: A statement likely to impose on one of ordinary prudence and
caution, and that it should be a statement of existing facts. The law also
gives a different effect to those promissory statements based on general knowl-
edge, information, and Judgment, and those representations which, from
knowledge peculiarily his own, a party may certaitily know will prove true or
false." Sawyer v. Prickett, 19 WaU. (U. S.) 146-160. "Promissory statements
may be made in terms which imply that a certain condition of things exists at
the time, and formed the basis of a promised future condition of things. When
they are of this description, if they are intentionaUy false, they are fraudu-
lent, and form the basis of the right of rescission; but otherwise fraud cannot
be predicated of promises not performed for the purpose of avoiding a con-
tract Like untruthful expressions of expectation or opinion, even though
meant to deceive, they are not fraudulent in legal definition, because they are
not misrepresentations of existing facts." Applied to a prospectus, Banque
V. Brown, 34 Fed. 192. And see New Brunswick Ry. v. Conybeare, 9 H. li.
Cas. 711. But see Goodwin v. Home, 60 N. H. 485; Turnipseed v. Hudson, 50
Miss. 429.
Ch. 9] DECEIT. 585
18L In an action for deceit, it is immaterial whether the
fjalse representation was made to the plaintiff, or to
some other person,^^ provided there was an inten-
tion, express or implied, of inducing the plaintiff
to act with respect —
(a) To himself, without reference to other specific per-
sons;
(b) To other specific persons;
(c) To the person making the statement.^^
In the commonest case of false representation, the expression or
suppression of the truth is made directly to the plainti£F, in person.
But "every man must be held liable for the consequences of a false
representation made by him to another, upon which a third person
acts and by so acting is injured or damnified, provided it appears
that such false representation was made with the intent that it
should be acted upon by such third person in the manner that occa-
sions the injury or loss. But, to bring it within the principle, the
injury, I apprehend, must be the immediate, and not the remote,
consequence of the repi'esentation thus made." ^®* This will ap-
pear fully in consideration of the cases (immediately following) as
to the person whom the defendant's misrepresentation has induced
to act.
Inducing Acts on the Plamtiff^a Behalf,
The law has recognized a distinction between a representation
made by a vendor of property, and one made by an apparently dis-
interested third party. In the former case, there may be liability;
in the latter, not.^**'* But the law recognizes that the natural effect
of fraudulent representation is not necessarily confined within so
narrow a scope. The statement need not be made to the injured
party. Thus, if one sell a gun, representing that it was safe, and
the vendee's son is injured by its explosion, he can recover damages
102 When made to plaintiff's agent, they are made to plaintiff. Culliford
V. Gadd (Super. N. Y.) 17 N. Y. Supp. 451, 18 N. Y. Supp. 208.
108 Pig. ToESts, 254.
104 Barry v. Croskey, 2 Johns. & H. 1.
108 Medbury v. Watson, 6 Mete. (Mass.) 24G.
586 MALICIOUS WRONGS. LCh. 9
therefor.*®* And, even where there is nothing of danger involved,
there may be liability to third persons because of fraudulent repre-
ftentations. Thus, if a letter containing false representations as to
facts in connection with property (as mortgage bonds to be sold),
and not merely with reference to matters of opinion, induce not
merely the person to whom it is addressed, but also other i)er8on8 to
whom it was shown, to invest, such representations are actionable-**'
But such liability would not extend to those who afterwards bought
of such purchasers, since the letter was not intended to aid the first
purchasers in selling to others.***
The principle seems to be that a representation, whatever be its
nature, cannot be supposed to continue forever, but that there is a
reasonable time within which the plaintiff must act upon it, and a
reasonable limitation to be placed upon the successive classes of
persons who act upon it, so as to be able to rely upon the fraud.***
Advertisements made to the public generally, as a false statement
in a time-table as to the running of trains,*** or to certain classes
looLangridge v. Levy, 2 Mees. & W. 519, 4 Mees. & W. 337. And see
Bodger V. NIcbolls, 28 Law T. (N. S.) 441; Ward v. Hobbs. 4 App. Gas. 13.
In George v. Skivlngton, L. R. 5 Exch. 1, the wife of a vendee was injured by
using a bottle of hair wash. Baron Cleasby said: "Substitute tbe word *ueg-
llgenoe' for *fraud,' and tbe analogy of Langrldge v. Ijery and this ease is
complete." This seems to praetically overrule Longmeid v. HoUiday, 6 Exch.
761. And see Mullett v. Mason, L. R. 1 0. P. 559, where damages were re-
covered which were caused by spreading of a contagious disease through an
animal sold. Gf. HiU v. Balls, 2 Hurl. & N. 298; 27 I^w J. Exch. 45, with
State V. Fox (Md.) 29 Atl. 60, as to damages consequent on sale of a glan>
dered horse. Mergulre v. O'-Donnell, 103 Gal. 50, 36 Pac. 1033. And see Ran-
dall V. Roper, 27 I^w J. Q. B. 266, El., Bl. & El. 84; Dingle v. Hare, 7 C. B.
(N. S.) 145, 29 Law J. G. P. 143; Collen v. Wright, 7 El. & Bl. 301, 26 Law J.
Q. B. 147. A vendor of hay who knowingly sold hay on which lead had been
spilled, whereby his vendee lost his cow, was held liable, because silence was
equivalent to deceit. French v. Vining, 102 Mass. 132.
107 Windram v. French, 151 Mass. 547, 24 N. E. 914; HonneweU v. Dux-
bury, 154 Mass. 286, 28 N. E. 207; Peek v. Gumey, L. R. 6 H. L. 377. But
see Brambell, B., in Bedford v. Bagishaur, 4 Hurl. & N. 538.
108 Xash V. Trust Go., 150 Mass. 437, 34 N. E. 625.
109 Peek V. Gumey, L. R. 6 H. L. 377; Blgelow, Lead. Gas. 41; Pig. Torts,
265; Reeve v. Dennett, 145 Mass. 23, 11 N. E. 9;W.
110 Dunton v. Great Northern Ry., 5 El. & Bl. 860. But see Glerk & L.
Torts, 403.
Ch. 9] DECEIT. 587
of the public, as a false advertisement of a farm to let by one who
had not power to let,^*^ are actionable.
Inducing Acts vnth Respect to OUier Specified Persona.
The usual form in which the wrong arises from inducing another
person to act to his damage with respect to other specified persons
is in obtaining credit for a third party. Thus, in Pasley v. Free-
man,*" the defendant affirmed to the plaintiff that a certain third
person might be safely trusted and given credit. This statement
was made falsely, deceitfully, and fraudulently, as the defendant
knew nothing about such person. In reliance thereon, the goods
were sold, and the plaintiff brought his action for damages. The
defendant could not have been held liable on a guaranty, because
hie representations were not in writing, as required by the statute
of fraud. It was held, however, that the action for deceit lay. Lord
Tenterden's act*** was passed to cover devices thus "dexterously
intended to avoid the statute of frauds." *** Actions, however, for
misrepresentation as to the financial responsibility of another, are
generally recognized.***
Inducing Acts wiih Respect to the Party Making the Statement.
When the false statement results in inducing one to do acts rela-
tive to the person making the statem>ent, the result is nearly always
a contract between the parties.**® Thus, in the leading case of
Ghandelor v. Lopus,**^ the defendant sold to the plaintiff a stone
111 Richardson v. Silvester, L. U. 9 Q. B. 34. Cf. Harris v. Nlckerson, L.
R. 8 Q. B. 286.
ii« 2 Smith, Lead. Cas. (0th Ed.) 74: "If it was not there (Pasley v. Free-
man, 3 Term R. 54) for the first time that an action of deceit would lie in re-
spect of fraudulent representations against a person not a party to a con-
tract induced by them, the law was, at all events, not so well settled but that
a distinguished judge (Gross, J), differing from his brother on the bench, held
that such an action was not maintainable. Lord Bramwell, in Peek v. Derry,
14 App. Cas. 337.
113 0 Geo. IV. c 14, S 6.
11* Gibbs, C. J., in AshHn v. White, Holt, N. P. 387.
11 R Nevada Bank of San Francisco v. Portland Nat. Bank, 59 Fed. 338;
Haycraft v. Creasy, 2 East, 92. Post, note 122.
lie Pig. Torts, 254.
fiT 1 Smith, Lead. Cas. (Hare & W. Ed.) 299. And see Ormrod v. Huth,
c Mees. & W. G51. Cf. Cornfoot v. Fowke, 6 Mees. & W. 358.
588 MALICIOUS WRONGS. [Ch. 9
which he afilniied to be Bezoar stone, but which proved not to be so.
It was held that no action lay against him, unless he either knew
that it was not a Bezoar stone, or had warranted it to be a Bezoar
stone. While this case has often been misunderstood,^^* "it can
easily be shown that the decision was correct. • ♦ ♦ Two things
were decided, and only two: One, a rule of pleading, stated by Ste-
phen, as ^things are to be pleaded according to their legal effect or
operation.' The other, that a mere affirmation made on the occa-
sion of a sale, unless made as a contract, or made fraudulently, is
immaterial, and if either of these is relied upon it must be pleaded
accordingly. Neither of these points was novel, or particularly im-
portant; so the case as it stands, though entirely correct, is more
useful as a text for a dissertation than as a statement of substantive
law." ^^* The true principle would seem to be that whenever a rep-
resentation amounts to a warranty of fact stated, and is untrue, it
is fraudulent in law, whether there was knowledge, or want of
knowledge, of its untruth on the part of the person making it.^**
Representations concerning matters which are obvious to ordinary
intelligence, and which lie as much within the knowledge of one
party as the other, and where they are not made for the purpose
of preventing inquiry or examination, do not amount to a warranty
of the knowledge of their truth on the part of the person making
them."^
Another illustration of cases in which the false statements have in-
duced acts with respect to the person making the statement occurs in
the cases in which merchants make false representations as to their
financial responsibility to mercantile agencies. If, in reliance upon
such representations, other merchants, subscribers to the agency,
have been induced to make contracts, the fraud is actionable.^**
118 Cf. Parker, C. J., in Bradford v. Manley (1810) 13 Mass. 139.
ii» Smith, Lead. Cas. (9th Am. Ed.) 329, 330, note 1; 1 Harv. Law Rev.
191.
120 Ball, Torts & Cont. 133; Margetson v. Wright, 5 Moore & P. 606; Holll-
day V. Morgan, 1 El. & El. 1; Lysney v. Selby, 2 Ld. Raym. 1118.
i«i Ball, Torts & Cont 134; Bailie v. Merrill, 1 Rolle, 275.
122 Eaton V. Avery. 83 N. Y. 31; Genesee Co. Sav. Bank v. Michigan Barge
Co., 52 Mich. 1(54, 17 N. W. 790; Mooney v. Davis. 75 Mich. 188. 42 N. W.
802; FuiTy v. O'Connor, 1 Ind. App. 5<3, 28 N. B. 103; Hinchman v. Weeks,
85 Mich. 535. 48 N. W. 790; Gainsville Nat Bank v. Bamberger, 77 Tex.
Ch. 9] DECEIT. 589
SAME— CONDUCT OF PLAINTIFF.
192. A false representation has no connection as cause of
the damage claimed, imless —
(a) It actually operated to deceive; and
(b) It was relied on, although not exclusively.
183. PlaintifTs contributory negligence, or credulity, in
relying on a fedse representation, is ordinarily no
defense to the fraud.
Connection as Cause,
Fraud or deceit is an instrument by which one person injures
another. If, therefore, the misrepresentation be not as to a mate
rial matter, and be not relied on, and not it, but something else,
is the cause of the damage, it cannot be made the basis of recovery.
In connecting such instrumentalities as the cause of the damage,
it is not necessary that it should be shown to be the sole or only
cause.^*' It is suflicient if it be a proximate cause.^^* A person
48, 13 S. W. 959; Claflin v. Flack (Com. PI.) 13 N. Y. Supp. 269. As to the
duty of a merchant to notify a mercantile agency to whom he haH made a
statement that his circumstances have since changed, see Cortland Manufg
Co. V. Crosky, 2 Johns. & H. 1. Where a merchant makes a report to a com-
mercial agency of material facts as to his financial condition, knowing them
to be false, for the purpose of obtaining a standing thereby, one to whom
the agent communicates the report, and who by reason thereof, believing
it to be true, sells goods to the merchant on credit, may recover in an action
against him for the fraudulent representation. Hinchman v. Weeks, 85
Mich. 535, 48 N. W. 790; ante, note 115.
123 Safford v. Grout, 120 Mass. 20; James v. Hodsden, 47 Vt. 127; Warder v.
Bowen, 31 Minn. 335, 17 N. W. 943; Sioux Nat. Bank v. Norfolk State Bank,
5 C. C. A. 448, 5(i Fed. 139. If the plaintiff's mind was partly Influenced by
defendant's misstatements, the defendant will not bo any less liable because
the plaintiff was also pai-tly Intiuenced by a mistake of his own. Per Bowen»
L. .1., in Kdgington v. Fitzmaurice, 29 Ch, Div. 459-483; Peek v. Derry, 37
Ch. Div. 541. And see Saundera v. McCliutock, 46 Mo. App. 21G.
i24Addlngton v. Allen, 11 Wend. (N. Y.) 374; Fishback v. MiUer. 15 Nev.
428; I^bby v. Ahrens, 26 S. C. 275, 2 S. E. 387; Winter v. Bandel. 30 Ark.
362; Black v. Black, 110 N. C. 399, 14 S. E. 971; Lewis v. JeweU, 151 Mass.
345, 24 N. E. 52; Ming v. Woolfolk, 116 U. S. 599. 0 Sup. Ct. 489; Ledbetter
V. Davis. 121 Ind. 119, 22 N. E. 744; Roseman v. Canovan, 43 Cal. 110; Web-
690 MALICIOUB WRONGS. [Ch. 9
may have relied both upon the misrepresentation of another, and
npon other considerations. It has been held, however, that rdi-
ance on such false representations must be a predominating motive.
"The term 'predominate,' in its natural and ordinary signification,
is understood to be something greater or superior in power and in-
fluence with which it is connected or compared. So understood, a
predominating motive, when several motives may have operated,
is one of greater force Jind effect than any other motive. But the
court are of opinion that if the false and fraudulent representa-
tion M'as a motive at all, conducive to the act, — if it was one of
several motives acting together, and by their combined force pro-
ducing the result, — it should be left to the jury so to find it" **'
37t€ Plaintiff must hire been Deceiced.
Deceit which does not deceive is not fraud."* Therefore, if
the vendor conceals a defect in a cannon sold to the vendee, and
the latter does not inspei't the cannon, he cannot recover in fraud
for damages caused by its subsequent explosion.*'^ "A mere
naked lie, though told with intent to deceive, upon which nobody
acts, and by which nobody is deceived, is not actionable." A dec-
laration alleging, in substanro, that the defendant falsely and
fraudulently represented that he had a valid claim against plain-
tiflfs for damages, that the latter relied upon the representation,
and that they had investigated, at a large expense, and found the
representation to be false, does not, therefore, state a cause of
action. "One or the other of the last two allegations is as un-
tnithful as the representations are claimed to be. Both cannot
be true. If the plaintiffs rely upon the representations, they did
ster V. Bailey, 31 Mich. 30; Parmlee v. Adolpb, 28 Ohio St. 10; Wakeman
V. Dalley, 51 N. Y. 27; Risoh v. Von Llllienthal, 34 Wis. 250; Endsley v.
Jolins. 120 111. 409, 12 N. E. 247; Fowler v. McCann, 80 Wis. 427, 50 N. W.
1085; Fulton v. Hootl, 34 Pa. St. 305; Pratt v. Pliilbrook, 41 Me. 132.
125 Mathews v. Bliss, 22 Pick. 48. Cf. Tatton v. Wade, 18 C. B. 371, where
part of the representation is in writing, and actionable under the statute
of frauds, and part is spoken only.
126 Fraser, Torts, 130.
127 Horsfall v. Thomas, 1 Hurl. & O. 90. But see Cockbum, C. J., in Smith
V. Hughes, L. R. 6 Q. B. 005. And see Smith v. Chadwlck, L. R. 20 Ch. Div.
27; Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 101.
Cb. 9} DECEIT. 591
not investigate them; if they investigated them, they did not rely
upon them.'* **•
A distinction between reliance and deception should be noted.
There may be deception without reliance. One may be deceived
by another's misrepresentation, and still not be entitled to recover,
because he did not rely upon such representation; as where such
representations were made a long time prior to his conduct,*** and
his conduct was influenced altogether by other considerations.
But, on the other hand, there can be no sufficient reliance with
deception. Thus, if a person knew statements to be false,*'® or
did not believe them,*'* or if he did not know of them specifical-
ly,*" he cannot say that he relied on them.
Reliance,
False representations do not constitute a cause of action, unless
it appears that the person complaining believed them to be true,
and acted thereon to his injury.*" The plaintiff must allege and
affirmatively prove that he believed the statement of the defend-
ant, and relied on it.*'* He cannot recover if it appears that he
tis Enfield v. Colburn, 63 N. H. 218.
is» Representations made a year before plaintiff's conduct causing damage
are not, as a matter of law, actionable. Reeve v. Dennett, 145 Mass. 23, 11
N. E. 938.
180 "However fraudulent and wicked a statement may be, if the innocent
party, before being tied, and while in a situation to retreat without prejudice
in any manner, becomes acquainted with the truth, the misrepresentation
will not be a ground of defense against the contract." Graves, J., in Whiting
V. fUll, 23 Mich. 300-405, and cases cited. And see Bowman v. Carithers,
40 Ind. 90; Stitt v. Little, 63 N. Y. 427; McCormick v. Kelly, 28 Minn. 135,
9 N. W. 675; Michaud v. Eisenmenger. 46 Minn. 405. 49 N. W. 202; Lincoln
V. Ragsdale, 37 N. E. 25. "But if a person employs an agent to take orders,
and a representation is made to him of the solvency of a person whom he
advises his employers to trust for goods, if at the time the agent knew that
such person was insolvent, though he did not communicate it to his employ-
ers, they cannot maintain an action against the person who made such false
representation." Co wen v. Simpson, 2 Esp. 290.
131 Gritting v. Dillir. 66 Hun, 633, 21 N. Y. Supp. 407.
182 Brackett v. Griawold. 112 N. Y. 454. 20 N. E. 376.
133 Upton V. Levy, 39 Neb. 331, 58 N. W. 95; Pearl v. Walter, 80 Mich. 317,
45 N..W. 181; Windram v. French, 151 Mass. 547, 24 N. E. 914.
i34Becraft v. Grist, 52 Mo. A pp. 586. See. also. Tlmmis v. Wade, 5 Ind.
App. 139, 31 N. E. 827; Ilenderaon v. Henshall, 4 C. C. A. 357, 54 Fed. 320;
692 MALICIOUS WRONGS. [Ch. 9
would have acted as he did in the absence of any representation on
the part of the defendant^** Hence, if he learns of the falsity of the
representation before the transaction is completed, and carries it
out notwithstanding, he cannot recover.*"* Representation after
consummation of a sale are not actionable.**^ And generally
knowledge of the falsity of the representation, or failure of the
plaintiff to beliere it, or reliance on his own investigation, shows
that he did not rely thereon,*** especially where means of correct
information were equally accessible to both parties.***
Stevens v. Allen, 51 Kan. 144. 32 Pac. 922; Barnes v. Union Pac. Ry. Co.,
12 U. S. 1, 4 C. C. A. 199, 54 Fed. 87. Nye v. Merriam, 35 Vt. 438; Hagee v.
Grossman, 31 Ind. 223; Grlfflng v. DlUer, 66 Hun, 633, 21 N. Y. Supp. 407;
Humphrey v. Merriam, 32 Minn. 197; Cheney v. Powell, 88 Ga. 629, 15 S. E.
750; Fowler v. McCann, 86 Wis. 427, 56 N. W. 10a">; Robbins v. Bartom, 50
Kan. 120, 31 Pac. 686; Runge v. Brown, 23 Neb. 817, 37 N. W. 660; Sheldon
V. Davidson, 85 Wis. 138, 55 N. W. 161; Upton v. Levy, 39 Neb. 331, 58 N.
W. 95; Stetson v. Rlggs, 37 Neb. 797, 56 N. W. 628.
i«BMing V. WoUfolk, 116 U. S. 599. 6 Sup. Ct 489; Black v. Black, 110
N. 0. 398, 14 S. E. 971; Holdom v. Ayer, 110 111. 448; TVimer v. Smith, 22 Or.
4(;9, 30 Pac. 416; Humphrey v. Mefrlam, 32 Minn. 197, 20 N. W. 138; Powers
V. Fowler, 157 Ma»s. 318, 32 N. E. 166. In an action on a note given tor the
exclusive right to use a patented article within a certain territory, where
defendant claimed damages on the ground that others were entitled to use
the article therein, and testified that plaintlfTs' agent told him that as soon
as he was ready to use it the others would have to *'get out" of the territory,
and the purchase was made with that understanding, and otherwise would
not have been made, an instniction that, if these representations were made,
it is a material question whether defendant considered them as material,
and they operated as a material inducement to enter into the contract. Is
proper (97 Mich. 419, 56 N. W. 774, reversed). Davis v. Davis, 100 Mich. 162,
58 N. W. 651.
136 McEacheran v. Western Transp. Co., 97 Mich. 479, 56 N. W. 860; Whit-
ing V. Hill, 23 Mich. 399; Vernol v. Vemol, 63 N. Y. 45. And see Pratt t.
Philbrook, 41 Me. 132; Tuck v. Downing, 76 111. 71. But see MaUock t.
Reppy, 47 Ark. 148, 14 S. W. 546.
137 Farmers* Stock-Breedlng Ass'n v. Scott (Kan.) 36 Pac, 978.
138 Glopton V. Cozart, 13 Smedes & M. (Miss.) 363; Ellison v. Barker, 14
Mont. 96, 35 Pac. 722; Hagee v. Grossman, 31 Ind. 223; Proctor v. McCord,
60 Iowa, 153, 14 N. W. 208; Humphrey v. Merriam, 32 Minn. 197, 20 N. W.
138; Lincoln y. Ragsdale, 9 Ind. App. ^55, 37 N. E. 25; Nelson y. Luling, 62
i«9 Nouiman y. Sutter County Land Co., 81 Cal. 1, 22 Pac. 515.
Oh. 9] DECEIT. 593
If the statement complained of is capable of being understood in
more than one sense, the plaintiff must, of course, show that he
acted upon it in the sense in which it is false.^**
As between vendor and yendee, there are three phases in which a
case of false representation may appear: First, the vendee may be
induced to purchase, relying solely on the false representations of
m
the vendor; second, he may be induced to make the investment by
the combined false representation of the vendor, and certain infor-
mation received from some other source;**^ or, third, although the
vendor may have made such false statements, yet the vendee may not
trust them, and may act alone from information received from
other sources.^** It is only in the first and second cases that the
vendee is entitled to an action for damages.
But a mere perfunctory inquiry on the part of the plaintiff is not
sufScient to enable a falsifying defendant to escape.^*' In general,
to escape liability, the defendant may prove that the other party
(1) knew the truth,*** or (2) relied on his own investigation,*** or
(3) was not really influenced by the defendant's misrepresenta-
N. T. ©45; Nye v. Merrlam, 35 Vt 438; Bowman v. Carithers. 40 Ind. 90;
Anderson v. Bemett, 6 Miss. 1G5; Doran v. Eaton, 40 Minn. 35, 41 N. W. 244;
Freeman v. McDaniel, 23 Ga. 354; Byard v. Holmes, 34 N. J. Law, 296; Han-
son V. Edgerly, 29 N. H. 343; Taylor v. Guest, 58 N. Y. 262; Fuller v. Hodg-
don, 25 Me. 243.
1*0 Llndley, L. J., in Smith v. Chadwick, 20 Oh. Div. 27. This is for the
Jury. Powers v. Fowler, 157 Mass. 318, 32 N. E. 166.
1*1 A dealer and expert in violins, who gives a false and fraudulent opin-
ion as to the make and value of such an instrument, to a purchaser ignomnt
of such matters, is liable to such purchaser, who buys in reliance on such
representations, In an action for deceit, even though the latter attached no
importance to the statements as to the maker, and did not rely solely there-
on. Powell V. Flechter (Com. PI. N. Y.) 18 N. Y. Supp. 451.
1*2 Moris V. Moris (Ga.) 20 S. E. 500; Black v. Black. 110 N. O. 398, 14
S. E. 971 (exchange of a mule for a horse); Nye v. Merrlam, 35 Vt. 438.
1*8 Redgrave v. Hurd, 20 Ch. Div. 1; Schumaker v. Mather. 133 N. Y. 590,
30 N. B. 755.
1*4 Mlchaud v. Eisenmenger, 46 Minn. 405, 49 N. W. 202.
1*5 Black V. Black, 110 N. 0. 398, 14 S. E. 971; Wimer v. Smith (Or.) 30
Pac. 416; Hall v. Thompson, 1 Smedes & M. (Miss.) 443. If defendant en-
deavored to mislead plaintiflf in making these investigations, this may be
new and actionable fraud. Roseman v. Canovan, 43 Gal. 110; Webster v.
Bailey, 31 Mich. 36.
LAW OF TOKT8— 88
594 MALiaOUB WRONGS. [Ch. 9
tion.^** The determination of these questions is ordinarily for
the jury.**'
Mateiiality of RepresenUitions.
It follows logically from the conception of fraud as the cause of
the plaintiff's harm that it must be as to a material circumstance.***
The courts recognize that what is a material representation depends
upon the circumstances of each case, and this is ordinarily for the
jury.*** Thus, a representation that land is in a city, when in fact
it was nine miles away,"® or that it is free from overflow from a
bcu'dering river,* °* or generally as to its quality and character,"-
niay be material. On the other hand, if the representation relates
to matters extrinsic and collateral to the transaction involved, and
concerns it in only a trivial and unimportant way, it affords no
grouud of action. Thus, where one deeded a farm to another, the
ixrantee cannot recover, in an action on the case, damages for alleged
146 Fraser, Torts, 130. Thus, If the buyer acts on his own examination
and the advice of a third person, there can be no recovery. Poland v.
Brownell, 131 Mass. 138. Or if plaintiff acts on defendant's guaranty, and
not on bis misrepresentation, he cannot recover. Holdom v. Ayer, 110 IlL
448. It is an error to refuse to instruct that, if plaintiff did not rely on the
alleged representation, but sought and obtained information elsewhere as to
such facts, and entered into the contract relying on his own judgment, he
could not i-ecover. Craig v. Hamilton, 118 Ind. 565, 21 N. E. 315.
i*T Schumaker v. Mather, 133 N. Y. 590, 30 N, E. 755, affirming (Sup.) 14
N. Y. Supp. 411.
1*8 Jordan v. Pickett, 78 Ala. 331; Young v. Young, 113 lU. 430; Dawe v.
Morris, 149 Mass. 188, 21 N. E. 313; Geddes v. Pennington, 5 Dow, 159; Da-
vis V. Davis, 97 Mich. 419, 56 N. W. 774; Hall v. Johnson, 41 Mich. 286, 2 N.
W. 55; Nounnan v. Land Co., 81 Cal. 1, 22 Pac. 515; Schwabacker v. Riddle.
99 111. 343; Winston v. Young, 52 Minn. 1, 53 N. W. 1015; Palmer v. Bell, 85
Me. 352, 27 AU. 250; Curtiss v. Howell 39 N. Y. 211.
149 Davis V. Davis, 97 Mich. 419. 56 N. W. 774.
150 Powers v. Fowler, 157 Mass. 318, 32 N. B. 166.
iBi Estell V. Myers, 54 Miss. 174.
1B2 Martin v. Jordan, 60 Me. 31; Rhoda v. Annis, 75 Me. 17; Messer v.
Smyth, 59 N. H. 41. And, generally, see Coolidge v. Goddard, 77 Me. 578, 1
Atl. 831; Allen v. Truesdell, 135 Mass. 75; Drake v. Grant, 36 Hun, 464;
Powers V. Fowler, 157 Mass. 318, 32 N. E. 166; Davis v. Davis, 97 Mich. 419.
56 N. W. 774; Id., 100 Mich. 102, 58 N. W. 651; Walker v. Anglo-American
Mortg. & Trust Co., 72 Hun, 334, 25 N. Y. Supp. 432; Hoist v. Stewart, 161
Mass. 516, 37 N. E. 755 (frequency of arrival and departiure of trains).
Ch. 9] DECEIT. 593
decoit in misrepresenting the manner in which a right of way over
the premises had been used.**'* Perhaps as definite a test of the
materiality of a misrepresentation as can be generally stated is this:
A statement is always material when the pei'son to whom it is
made would not have acted as he did, had he not believed and re-
lied on it."*
Conduct of Plaintiff OB a Bar to Relief.
There are many circumstances under which no complaint can be
heard from a person charging deceit. Between joint tort feasors
in deceit, there is no cause of action for contribution after judgment
rendered against one or more of them. Nor can one of such persons
sue the other directly.* •• Moreover, the law is inclined to apply
broadly the equitable principle in pais to fraudulent misrepresenta-
tions."* The commonest form of conduct which will prevent re-
covery in deceit may, with some latitude of meaning, be conven-
iently called contributory negligence.
Contrilmiory Negligence.
No man can recover for harm he has inflicted on himself. If his
own negligence has been the cause of his damage, he cannot re-
cover for it. But, in order that negligence should exist, it is neces-
sary that he should have been guilty of failure to exercise care, un-
der such circumstances as placed on him the duty of exercising dili-
gence. The law recognizes, in many circumstances, the right of
one man to rely upon the statements of another. Hence, it is not
often such negligence to be credulous, or to fail to use such means
of ascertaining the truth as may easily be at hand, as will prevent
recovery. There is, indeed, a strong inclination on the part of courts
to hold, without any qualification, that a person guilty of a fraudu-
1B3 Palmer v. Bell, 85 Me. 352, 27 Atl. 250; Winston v. Young, 52 Minn. 1.
53 N. W. 1015.
IB* McAleer v. Horsey, 35 Md. 439; Powers v. Fowler, 157 Mass. 318, 32
N. E. 166; Hoist v. Stewart, 161 Mass. 516, 37 N. E. 755; Reid v. Cowdu-
roy, 79 Iowa, 169. 44 N. W. 351.
IBS Ante, p. 209, "Joint Tort Feasors." A fraudulent transaction in which
both parties have knowingly participated will not support a Judgment for
plaintiff, nor a Judgiment for afDrmative relief for defendant Buchtella v.
Stepanek, 53 Kan. 373, 36 Pac. 749.
io« Ellis V. Newbrough (N. M.) 27 Pac. 490.
59 G MAi.uiors WRONGS. [Ch. 9
lent misrepresentation cannot escape the effects of his fanlt an the
ground of the injured party's negligence.**^ The doctrine is well
settled, as a rule, that a party guilty of fraudulent conduct shall
not be allowed to cry Negligence/ as against his own deliberate
fraud.""*
A man may act upon the positive representation of a fact, al-
though means of obtaining correct knowledge were immediately at
hand, and open to him."» Thus, where the seller of a boat falsely
represented that there were no claims against it, knowing the rep-
resentations to be false, it was no defense to an action for the dec&t
that the buyer could have ascertained the fact by a search of the
records, but failed to do so."® On the same principle, representa-
"7 Alfred Shrimpton & Sons v. PhUbrick, 53 Minn. 36G, 55 N. W. 551; Stew-
art V. Steams, 63 N. H. 99; Dambmann v. Schulting, 75 N. Y. 55; CottrlU y.
Krum, 100 Mo. 397, 13 S. W. 753; David v. Park, 103 Mass. 501; Mead v.
Bunn, 32 N. Y. 275; Warder, Bushnrfl & Glesaner Co. v. Whitish, 77 Wis. 430.
46 X. W. 540; Eaton v. Winnie, 20 Mich. 156; Kendall v. Wilson, 41 Vt 567;
Pierce v. Wilson, 34 Ala. 596; Hale v. Philbrlck, 42 Iowa, 81; Sutton v. Mor-
gan, 27 Ati. 894; Hicks y. SteYens, 121 111. 186, 11 N. E. 241; Endsley y.
Johns, 120 lU. 469, 12 N. E. 247; Ltnington y. Strong, 107 IlL 295; Ladd y.
Pigott, 114 Bl. 647, 2 N. E. 503; Oswald y. McGehee, 28 Miss. 340; McClel-
hm Y. Scott, 24 Wis. 81; Walsh y. HaU, 66 N. G. 233; ChamberUn y. Fuller.
59 Vt. 247, 9 Atl. 832; Redding y. Wright, 49 Minn. 322, 51 N. W. 1056; Por-
ter Y. Fletcher, 25 Minn. 493; Gammill y. Johnson, 47 Ark. .335. 1 S. W. 610;
Erickson v. Fisher, 51 Minn. 300, 53 N. W. 638.
IBS Linington y. Strong, 107 111. 295; Lord Ghelmsford, In Directors y.
Kisch, L. R. 2 H. L. 99-120; Stewart y. Steams, 03 N. H. 99. And see Damb-
mann Y. Schultlng, 75 N. Y. 55; Burroughs y. Pacific Guano Go., 81 Ala. 255.
1 South. 212; Brooks v. Matthews, 78 Ga, 739, 8 S. B. 627; Taylo(p y. Fleck-
enstein, 30 Fed. 99; Keller v. Orr, 106 Ind. 406, 7 N. E. 195; Wallace Y. Chi-
eago, St. P., M. & O. Ry. Co., 67 Iowa, 547, 25 N. W. 772; Bowers Y. Thomas,
62 Wis. 480, 22 N. W. 710; First Nat. Bank y. Deal, 55 Mich. 592, 22 N. W.
53; McGinn y. Tobey, 62 Mich. 252, 28 N. W. 818; Smith y. Smith, 134 N. Y.
62, 31 N. E. 258; Rider Y. Kelso, 53 Iowa. 367, 5 N. W. 509; Baker y. LeYer,
67 N. Y. 304; Jackson y. Collins, 39 Mich. 557; Ledbetter y. DaYis, 121 Ind.
119, 22 N. B. 744; Hanscom y. Drullard, 79 Cal. 234, 21 Pac. 736; Lewis y.
Jewell, 151 Mass. 345, 24 N. E. 52; Clark v. Ralls (Iowa) 24 N. W. 567; Ken-
ner y. Harding, 85 111. 264.
ie9 Castenholz y. Heller, 82 Wis. 30, 51 N. W. 432.
leo Redding y. Wright, 49 Minn. 322, 51 N. W. 1056; Wheeler y. Baars, 83
Fla. 696, 15 South. 584. And see Davis y. Jenkins, 46 Kan. 19, 26 Pac. 459;
Carpenter y. Wright, 52 Kan. 221, 34 Pac. 798. See, on this, Kiefer i. Ro©-
Ch. 9] DECEIT. 697
tions as to the value of stock or profits of a business may be action-
able, although the plaintiff could have ascertained their falsity by
examination of books open to him.^*^ He need not have an expert
verify the statements, although he is entitled to do so.^*^ One who
has induced an agent to purchase a railroad bond by representing
that it was an ^'A No. 1'' bond, and that the railroad was good se-
curity therefor, is not liable in an action for fraudulent representa-
tions, where he was known by the agent to stand in the position of
a seller, and the market price of the bond was easily ascertaina-
ble.168
''Every contracting party has an absolute right to rely on the
express statement of an existing fact, the truth of which is known
to the opposite party and unknown to him, as the basis of a mutual
engagement; and he is under no obligation to investigate and verify
statements, to the truth of which the other party to the contract,
with full means of knowledge, has deliberately pledged his
faith." ^•^ The law is not blind to the fact that communities are
composed of individuals of varying degrees of intelligence and Ca-
ere, 19 Minn. 32 (Gil. 14); Porter v. Fletcher, 25 Minn. 493; Griffin v. Farrier,
32 Minn. 474. 21 N. W. 553; Reynolds v. Franklin, 30 Minn. 34, 38 N. W. 636;
Erick8on v. Bennet, 39 Minn. 326, 40 N. W. 157. Deceit may lie altbouRh
the deed to land contains no covenants. Barnes v. Union Pac. Ry. Co., 4 C.
C. A. 199, 54 Fed. 87. Cf. Saguinn v. Siedentopf (Iowa) 54 N. W. 430.
i«i Blacknall v. Rowland, 108 N. C. 554, 13 S. E. 101; Redding v. Wright
49 Minn. 322, 51 N. W. 1056. And see Taylor v. Saurmau, 110 Pa. St 3, 1
Atl. 40; DobeU v. Stevens (1825) 3 Bam. & C. 623; Baily v. Merrell, 3 Bulst
05. So misrepresentation as to frequency of nmning of trains may be ac-
tionable, despite access to time tables on plaintiff's part. Hoist v. Stewart,
161 Mass. 516, 37 N. E. 755. So, with reference to statements as to the char-
acter of land which plaintiff could, but in fact did not, inspect Brady v.
Finn, 162 Mass. 260, 38 N. E. 506; Henderson v. Henshall, 4 C. 0. A. 357,
54 Fed. 320; Stevens v. Allen, 51 Kan. 144, 32 Pac. 922. But see Armstrong
V. White (Ind. App.) 34 N. E. 847.
i«2 Blacknall v. Rowland, 108 N. C. 554, 13 S. E. 191.
i«a Denning v. Darling, 148 Mass. 5(H, 20 N. E. 107.
i«4 Porter, J., in Mead v. Bunn, 32 N. Y. 275-280. And see Cottrill v.
Krum, 100 Mo. 397. 13 S. W. 753; Eaton v. Winnie. 20 Mich. 156; Duff v.
Williams, 85 Pa. St 400; Bird v. Kleiner, 41 Wis. 134; Pomeroy v. Benton,
57 Mo. 531; Wharf v. Roberts. 88 111. 426; Stewart v. Stearns. 63 N. H. 99;
McGlbbons v. Wilder, 78 Iowa, 531, 43 N. W. 520; Faribault v. Sater, 13 Minn.
223 (GU. 210); Kiefer v. Rogers, 19 Minn. 32 (Gil. 14); Burr v. Willson, 22
598 MALiaous wbokgs. [Ch. 9
pacitj.^** ^t is as mach actionable fraad willfully to deceive a
credulons person with an improbable falsehood as it is to deceive a
<*aatious, sagacious person with a plausible one. The law draws no
line between the two falsehoods." *••
However, the law recognizes that if one's own failure to exercise
the precaution a reasonable man would take under the circum-
Htanc('H has caused the damage to himself, he cannot recover; but
the law does not proceed on the theory of the merits of the plain-
tiff, or the demerits of the defendant**^ Therefore, under eitra-
Minii. 206; Porter ▼. Fletcher, 25 Minn. 493; Olson v. Orton, 28 Minn. 36, 8
N. W. 878; Maxfield y. Schwartz, 45 Minn. 150, 47 N. W. 448. But see
Bijfelow, Frauds (Ed. 1888) 522. Cf. page 523, etc., Kerr, Fraud & M. 80.
"Men in business transactions of this kind are authorized to trust one an-
other, and not act as though those with whom they deal are untruthful
and dishonest. When, therefore, one having peculiar knowledge of a sub-
ject makes representations touching it to another haying) no knowledge
thereof, which operate as an inducement to him to enter into a contract with
the maker of the representations, involving such subject, he may rely ppon
such rt^presentations. and is not required to make inquiry or investigation
as to their truth." Clark y. Ralls (Iowa) 24 N. W. 567.
!•» Mitchell, C. J., in Ingalls v. Miller, 121 Ind. 188-191, 22 N. E. 995, quot-
ing McKee V. State, 111 Ind. 378, 12 N. E. 510: "The design of the law is
to protect the weak and credulous from the wiles and stratagems of the art-
ful and cunning, as well as those whose vigilance and sagacity enable them
to protect themselves."
!•• Bamdt v. Frederick, 78 Wis. 1, 47 N. W. 6; Pearl v. Walter, 80 Mich.
ai7, 45 N. W. 181: Leland v. Good fellow. 84 Mich. 357, 47 N. W. 591; Red-
ding V. Wright, 49 Minn. 322, 51 N. W. 1056. In an action for damages
against the administratrix of one who fraudulently induced plaintiff to ex-
change land for certain other property, evidence that at the time of the ex-
change plaintiff was of a weak mind is competent in order to show a suscep-
tibility to intestate's representations. Bloomer v. Gray, 10 Ind. App. 326, 37
N. E. 819.
leT See Bigelow, Frauds (Ed. 1888) 523; Walsh v. Hall, 66 N. C.233; Cottrill
V. Krum, 100 Mo. 307, 13 S. W. 753. Especially in all cases where actual
fraud is not made out, but the imputation rests upon conjecture, where the
seal of death has closed the lips of those whose character la involved, and
lapse of time has impaired the recollection of transactions, and obscured
their details, the welfare of society demands the rigid enforcement of the
rule of diligence. Fuller, O. J., in Hammond v. Hopkins, 143 U. S. 224, 12
Sup. Ct. 418. Even in cases where the misrepresentations are In reference
to material facts affecting the value of property, and not merely expressions
Ch. 9] DBCsar. 699
ordinary circumstances, false representations respecting title, in-
ducing the making of a conveyance, may entitle the grantor to a
remedy for deceit.*** A grantor who executes a deed to real estate,
trusting to the assurance of the grantee that it would convey noth-
ing, cannot recover for the alleged fraudulent representations, es-
pecially if the means of information are equally open to both par-
ties, and the grantor consults his attorney with reference to the
deed.*** Misrepresentations may be so extravagant that no reason-
ably prudent man would have believed in or relied on them. Such
of opinion or Judgment, the law holds tbat the person to whom such repre-
sentations are made has no right to rely upon them if the facts are within
his observation, or if h« has equal means of knowing the truth, or by the
u^ of reasonable diligence might have ascertained It, and is not induced to
forego further inquiry which he otherwise would have made. Foster, J.,
in Palmer v. Bell, 85 Me. 352, 27 Atl. 250, 251; Gordon v. Parmelee, 2 Allen
(Mass.) 212-214; Savage v. Stevens. 126 Mass. 207-208; Rhoda v. Annls, 75
Me. 17-27; Brown v. Leach. 107 Mass. 364; Parker v. Moulton, 114 Mass.
«9; Veasey v. Doton, 3 AUen (Mass.) 380; Bradbury v. Haines, 60 N. H. 123-
124. '*The common law affords to every one reasonable protection against
fraud in dealing, but it does not go the romantic length of giving indemnity
against the consequences of indolence and folly, or a careless indifference
to the ordinary and accessible means of information." 2 Kent. Comm. (13th
Ed.) 485. In a proceeding to enforce specific performance of a written con-
tract, a plea of fraud, even if it involved a want of prudence in relying on
fraudulent representations on the part of the party resisting such perform-
ance, may be relied on as a defense, as showing that the contract was not
valid. Aultman v. Olson, 34 Minn. 450. 26 N. W. 451; Frohrelch v. Gammon,
28 Minn. 47G, 11 N. W. 88; Miller v. Sawbridge, 29 Minn. 442. 13 N. W. 671;
Albany City Sav. Inst. v. Burdick. 87 N. Y. 40; LIuington v. Strong, 107 111.
295; Gardner t. Trenary. 65 Iowa. 646, 22 N. W. 912; Thoroughgood's Case.
2 Coke, 9; Stanley v. McGauran, L. R. 11 Ir. 314; Redgrave v. Hurd, 20
Ch. Dlv. 1, 13; Pol. Cont. 401 et seq., and cases cited; Blgelow, Frauds, 523-
525. Maxfield v. Schwartz, 45 Minn. 429. 47 N. W. 448. It has. however,
been held that laches which may prevent a purchaser from rescinding the
contract of sale for fraud will not prevent her from maintaining an action
for damages sustained by the fraudulent misrepresentation, where such ac-
tion is not barred by any statute of limitation. Griffin v. DlUer, 66 Hun,
633, 21 N. Y. Supp. 407.
i«8 But see Robins v. Hope. 57 Cal. 493.
ie»Cobb V. Wright, 43 Minn. 83, 44 N. W. 662; Slaughter v. Gerson, 13
AVall. 379; Brown v. I^each, 107 Mass. 3G4; Parker v. Moulton, 114 Mass. 99;
Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Morrill v. Madden, 35 Minn. 493,
29 N. W. 103.
GOO MALiaOUS WRONGS. [Ch. 9
will not sustain an action for deceit Bnt this, as in other cases of
due care,"® the jury ordinarily should determine.*^*
The conduct of the party charged with fraud, in preventing in-
vestigation, and generally in throwing the complainant off his
guard, may serve to justify what would otherwise be, on the com-
plainant s part, the want of ordinary care.^'* Whereas, the efforts
of one person to have another pursue his own investigation are cal-
culated to raise a strong presumption of good faith.^^'
SAME^BESULTING DAMAGE.
194. Fraud without damage, or damage without fraud,
will not form the basis of an action, but "where
both concur an action will lie.^^^
''Fraud does not consist in mere intention, but in intention carried
out by hurtful acts. It consists of conduct that operates prejudi-
cially to the rights of others, and is so intended." *'• In other words,
the plaintiff must show, not only that he was deceived by the def end-
ant's fraud, without such negligence or other fault on his part as will
bar his right to recover, and that he relied on the defendant's wrongful
act, but also that he acted, or refrained from acting, in consequence,
whereby damages resulted to him.^^* There is no cause of action
without actual damage. Damage is the gist of the action.^^^ Tbe
If
170 Post, p. 810, "Negligence.'
171 Barndt v. Fredenek. 78 Wis. 1. 47 N. W. 6.
172 Schwabacker v. Riddle, 99 la 343; Schumaker v. Mather (Sup.) 14 N.
Y. Supp. 411; White v. Mowbray (Sup.) 3 N. Y. Supp. 225 (misrepresentatlonB
as to apparent unsoundness of a horse).
178 Woolenslagle v. Runals, 76 Mich. 545, 43 N. W. 454. Cf. Hanscom v.
DniUard. 79 Cal. 234. 21 Pac. 730.
174 Cook, J., in Baily v. Merrell, 3 Bulst. 95.
17 5 Williams. J., in Williams v. Davis. 69 Pa. St 21-28.
i7« Upton V. I^evy. 39 Neb. 331, 58 N. W. 95; Dawe v. Morrla, 149 Mass.
191, 21 N. E. 313; Busterud v. Farrington, 36 Mlnn^ 320, 31 N. W. 360; Stet-
son V. RiKgs. 37 Neb. 797, 56 N. W. 628; First Nat. Bank v. North (S. D.)
51 N. W. 90.
177 Lord Blackburn, in Smith y. Chadwick, 9 App. Cas. 197: Doran ▼.
Eaton, 40 Minn. 35, 41 N. W. 244; Aldea v. Wright, 47 Minn. 226, 49 N. W.
767; Newell v. Chapman, 74 Hun, 111, 26 N. Y. Supp. 361; MelviUe v. Gary
(Md.) 24 Ati. 604.
Ch. 9] DECEIT. GOl
cause of action accrues, not on the completion of the defendant's
fraud, and the plaintiff's conduct in deceived reliance thereon, but
upon the happening of the damage subsequent to and consequent
thereon."* Therefore, in order to recover from the vendor of a note
for fraudulent representations as to the solvency of the maker, it
is necessary to show that the indorser thereon is insolvent, in oMer
to prove damages.^'*
The damages which are made the basis of recovery must conform
to the legal standard. Inasmuch as the law does not Dresume dam-
age, the damages which are proved must be substantial. More nom-
inal damages are not sufficient.^®® Damages which are too vague
and speculative in their nature do not satisfy the requirements of
the law. Thus, the profits which the purchaser of a business enter-
prise would have made out of the transfer thereof to a corporation
to be organized for the purpose of taking it are too uncertain to be
recoverable by the purchaser in an action for fraudulent represen-
tation, inducing the purchase, although a syndicate had promised
to underwrite the capital of the corporation, thereby, in effect, prom-
ising to subscribe all the capital not contributed by others, but had
not entered into any definite or obligatory contract with the pur-
chaser.^*^ So damage to business reputation because of loss of
money and large creditors, consequent upon a bad bargain induced
by the defendant's fraud, cannot be recovered.^*^ Thus, if the de-
iT«An action to recover damagee for alleged false representations as to
the value of certain bonds, whereby plaintiff was induced to purchase them,
cannot be maintained until the maturity of the bonds, as no damages can be
shown until then. Currier v. Poor (Sup.) 32 N. Y. Supp. 74.
17 0 Hamlin v. Abell, 120 Mo. 188, 25 S. W. 516; Bradford v. Neill, 46 Minn.
347, 49 N. W. 193. Cf. Childs v. MeiTill, 63 Vt. 463, 22 Atl. 626. It was held
in Tyson v. Kanney (Wis.) 61 N. W. 563. that where a husband contracts
to exchange his own property for land, and afterwards informs his wife of
the contract, and directs that the land be conveyed to her, she cannot main-
tain an action against the grantor for false representations as to the char-
acter of the land. It is doubtful if this decision can be harmonizeil with in-
surance cases where the policy is issued to one person, and the misrepre-
sentation made to another, who paid the premium.
180 Van Velsor v. Seeberger, 35 111. App. 508.
181 Loewer v. Harris, 6 C. C. A. 394, 57 Fed. 368. And, generally, see Davis
V. Davis. 84 Mich. 324. 47 N. W. 555..
182 Totten V. Burhans, 91 Mich. 495, 51 N. W. 1119.
602 M\LICIOUS WKOKQS. [Ch. 9
fendant, bj false representationfl, induces a third person to revoke a
will favorable to the plaintiff, and to execute another will depriv-
ing such plaintiff of substantial benefits, no action lies. ^The pos-
sibility of injury is too shadowy and evanescent to be dealt with by
courts of law." ^"^ Remote harm does not complete the cause of
action.^** Damages for fraud are governed by ordinary principlea.
The general rule is compensation.^ '^'^ Exemplary damages may be
awarded under appropriate circumstances.^** The rule as to gen-
eral and special damages is applied.^ *^
«
MALICIOUS PROSECUTION.
196. Malicious prosecution is a wrong to person, estate, or
reputation, based upon a previous judicial proceed-
ing.
185 Hutchins v. Hutchins, 7 Hill, 104; Randall y. Hazolton, 12 Allen (Mass.)
412.
184 Hemmwell v. Drlxbury.
186 The measure of damages for falsely representing the existence of a claim
for damages In favor of a lot sold is the value of the claim. Shanks y. Whit-
ney, m Vt. 405, 29 Atl. 367; Fixen v. Blake, 47 Minn. 540, 50 N. W. 612; Ellis
V. Barlow (Tex. Ciy. App.) 26 S. W. 008; Wallace v. Hallowell (Minn.) 58 N. W.
202; NeweU v. Chapman, 74 Hun, 111, 26 N. Y. Supp. 361; Tate v. Watts. 42
111. App. 103; Thomas v. Dickinson, 67 Hun, 350, 22 N. Y. Supp. 200; Lare y.
Westmoreland Specialty Co., 155 Pa. St. 33, 25 Atl. 812; McHose y. Earnshaw,
5 C. C. A. 210, 55 Fed. 584; Stickney v. Jourdan (Minn.) 49 X. W. 980; High y.
Berret (Pa. Sup.) 23 Atl. 1004; At water y. Whiteman, 41 Fed. 427, followed In
Glaspell V. Northern Pac. K. Co., 43 Fed. 900 (under Code Dak. § 1967); Red-
ding V. Godwin, 44 Minn. 355, 46 N. W. 563.
186 Whenever fraud, malice, gi'oss negligence, or oppression mingle in the
controversy, the law allows the jury to give exemplary damages. Cady v.
Case, 45 Kan. 733, 26 Pac. 448.
187 In an action for false representations made to a purchaser of a business
enterprise, the charges of the accountants employed by him to examine the
books, and the fees of solicitors employed to organize a corporation to take
over the business, must be specially alleged. Loewer v. Harris, 6 O. C. A. 394,
57 Fed. 368. In an action for deceit in selling plaintiff glandered horHes, spe-
cial damages are recoverable for medical treatment of the horses, and for the
value of the stable which plaintiff had to burn to prevent contagion. Mer-
guire V. O'Donnell, 103 Cal. 50, 36 Pac. 1033.
Ch. 9] MALICIOUS PROSECUTION. 603
•
196. To sustain an action for malicious prosecution, there
must be a concurrence of the foUo^vTing elements:
(a) The commencement of a civil or criminal judicial
proceeding.
(b) Its termination in favor of the plaintUBf in malicious
prosecution, except where his success n^as fraudu-
lent.
(c) The plaintiff in malicious prosecution must have bean
the defendant in the original proceeding, and the
defendant in malicious prosecution must have been
the prosecutor or plaintiff, or cause of the original
proceeding.
(d) The absence of any reasonable or probable cause for
such proceeding.
(e) The proceeding must have been actuated by malice.
(f ) It must have resulted in damage, conforming to the
legal standards, to plaintiff in malicious prosecu-
tion.
Actions on the case were early brought for malicious prosecu-
tions.^®* And, when this wrong was committed by several persons,
there was an action on the case, **in the nature of an action of con-
spiracy," against them.*'* The averment of conspiracy, however,
came to be rejected as surplusage.^ •" The wrong now called "con-
spiracy" has, of course, no special relation to false imprisonment or
i8« Daw V. Swiane, 1 Sid. 424; Skinner v. Gunton, 1 Saund. 228; Atwood
V. Monger, Style, 378.
189 Phillips V. Jansen, 2 Esp. 624; Lord Chief Justice Holt, in SavUe v. Rob-
erts. 1 Ld. Raym. 374; Price v. Crofts, T. Raym. 180; St. 33 Edw. I., "Con-
spiratoribus," Fitzh. Nat. Brev, p. 1, subd. 14, D. Thus it was held in MiUs
V. Mills, Cro. Car. 239, Saur. Abr. p. 62, pi. 3: **And this being in fact an action
for malicious prosecution, with this difference, that an action for a malicious
prosecution may be brought against one only, but an action on the case in
the nature of a conspiracy must be against more than one, or against one,
charging that he, together witli J. S. or otliei*s, had conspired to inflict the
plaintiff, or charge him with a crime, the grounds of the action therefor are
the same."
i»o Muriel v. Tracey, 6 Mod. 169. In BIgelow, Cas. Torts, p. 100, a learned
and extended discussion will be found.
601 MALICIOUS WRONGS. [Ch 9
malicious prosecution.'*^ Malicious prosecution was not a tres-
pass/'^ but gave rise to an action on the case, in which damage
was the gist of the action. It is convenient to postpone the dis-
tinction between it and false imprisonment and malicious abuse of
process. It is, as has been seen, regarded as defamatory publication
through courts of justice. The burden of proof is on the plaintiff
to show that each of the essential elements of the wrong exist^**
The defendant's case, therefore, is a negative one. Thus, justifica-
tion and matter mitigating damage are denials of the plaintiflTs
case,^** and do not operate by way of confession and avoidance.
This will be made clear by a separate consideration of the constitu-
ent elements as enumerated.
SAME— THE JUDICIAL PHOCEEDING.
187. To constitute maliciouB prosecution, there must have
been an original judicial proceeding. The tendency
of the American courts is to recognize as a basis
for malicious prosecution either a civil or criminal
original proceeding even though there may have
been no interference with the person or property.
The original proceeding must have been judicial. If it is extra-
judicial, the remedy is trespass.^"' Therefore, where a man is ar-
rested on perfect legal process, though maliciously, without proba-
ble cause, and is acquitted, he cannot sue in trespass, for false im-
181 Post, p. 037.
102 "In no case has he who instituted a groundless proceeding been held lia-
ble as a trespasser." Lovier v. Gilpin, 6 Dana (Ky.) 321-^28; Daniels v. Feild-
ing, 16 Mees. & W. 200; Barber v. RoUinson, 1 Gromp. & M. 330; Gassier v.
Fales, 139 Mass. 461, 1 N. E. 922. Et vide Legallee v. Blaisdell, 134 Mass. 473;
Sheldon v. Carpenter, 4 N. Y. 579; De Medina v. Grove, 10 Q. B. 152-170.
103 2 Greenl. Ev. § 449; Barton v. Kavanaugh, 12 La. Ann. 332; Mitchell v.
Jenkins, 5 Bam. & Adol. 588; Whalley v. Pepper, 7 Gar. & P. 506; WaUter v.
Cruikshank, 2 Hill, 297; Melvin v. Chancy (Tex. Giv. App.) 28 S. W. 241;
Barber v. Scott (Iowa) 60 N. W. 497; Welsh v. Cheek (N. G.) 20 S. E. 460.
Want of probable cause and malice, Womack v. Fudikar, 47 La. Ann. 33, 16
South. 645.
104 2 Greenl. Ev. S 457.
losFurpin v. Remy, 3 Blackf. 210; Johnstone v. Sutton, 1 Term R. 510.
Ch. 9] MALICIOUS PROSECUTION. 605
prisonment, but for malicious prosecution.^** There is not a una-
nimity ef opinion in ai)pl yinpf this requirement.^*' Malicious prosecu-
tion, it seems, will not lie where the court has no jurisdiction of the
subject-matter.^** But it is sufficient if the plaintiff was actually
brought before the court, although there may have been an insuffi-
cient complaint, defect of process, or want of jurisdiction in the
magistrate.*** It is both affirmed and denied that, where the com-
plaint in the original proceeding does not set out an offense in the
law, the plaintiff can recover in false imprisonment only, and not in
malicious prosecution.*** So dismissal by a magistrate on hearing,
or his decision that a warrant is void on its face, has been held to
entitle to trespass, not case.^**
IVTiat Judicial Proceedings are Sufficient, ^
The authorities are not agreed as to what judicial proceedings
are sufficient as a basis for an action of malicious prosecution. In
England, '^malicious prosecution" has been defined as ^'the mali-
cious institution against another of criminal, bankruptcy, or liquida-
tion proceedings, without reasonable and probable cause." '** On
the other hand, Mr. Stephens'*' distinguishes as wrongs more or
i»« Murphy v. Martin, 58 Wis. 276, 16 N. W. 603; King v. Johnston, 81 Wis.
579, 51 N. W. 1011; Gelzenleuchter v. Niemeyer, 64 Wis. 321, 25 N. W. 442;
Boaz V. Tate, 43 Ind. 60; Goiter v. Lower, 35 Ind. 286. Et vide ante, p. 418.
note 7. As to false imprisonment under such circumstances, see Garratt v.
Morley, 1 Q. B. 18; West v. Smallwood, 3 Mees. & W. 418; Atwood v. Monger,
Style, 378.
1*7 Post, p. 630, "Malicious Prosecution and False Imprisonment"
i9« Bixby V. Brundige, 2 Gray, 129; Whiting v. Johnson, 6 Gray, 246; Painter
V. Ives, 4 Neb. 122. Et vide Marshall v. Betner. 17 Ala. 832. But see, contra,
Wood V. Sutor, 70 Tex. 343, 8 S. W. 51; Id., 76 Tex. 403, 13 S. W. 321; Stone v.
Stevens, 12 Gonn. 219.
io» Gibbs V. Ames, 119 Mass. 60-66. Compare Bell v. Keepers, 37 Kan. 64,
14 Pac. 542; Stocking v. Howard, 73 Mo. 25.
200 Compare Finn v. Frink, 84 Me. 261, 24 Atl. 851, and Lueck v. Heisler, 87
Wis. 644, 58 N. W. 1101, with Krause v. Spiegel, 94 Gal. 370, 29 Pac. 707;
Kramer v. Lott, 50 Pa. St. 495; Schattgen v. Holnback, 149 III. 646, 36 N. E.
969.
201 Maher v. Ashmead, 30 Pa. St. 344; Baird v. Householder, 32 Pa. St. 168.
Compare Stewart v. Thompson, 51 Pa. St 158.
202 Fraser. Torts, 121.
ao8 steph. Mai. Pros. ♦p. 19, c. 3.
606 MALICIOUS WRONGS. [Ol. 9
less closely analogous to malicious prosecution, malicious ar-
rest,*'* bringing or conspiring to bring a civil action yexatioiis-
ly,*** malicionsly taking proceedings in bankruptcy,*** maliciously
presenting a petition for the winding up of a company,**^ malicious-
ly obtaining a search warrant for goods,*** maliciously obtaining a
search warrant under Criminal Law Amendment Act 18S5,*** and
maliciously exhibiting articles of the peace.*^*
However, it neither accords with modem ideas of pleading and
practice, nor of primary rijrhts, to direct much attention to the
minute distinction between malicious prosecution and allied
wrongs. Indeed, even the lines of demarkation between malicious
prosecution, malicious abuse of process, and false imprisonment are
none too distinct.***
Malicious prosecution npplies, cloarly, where the original pro-
ce(*ding was criminal in its nature. Very commonly, the action is
brought where the original proceeding was a malicious arrest***
2o« Stoph. Mai. Pros. ♦p. 19, c. 3, citing Schelbel v. Falrbaim [1799] 1 Bos.
& P. ;5SS; Gil)son v. Cliatera flSOO] 2 Bos. & P. 129; Pa^e v. Wiple [18031
3 East, 314; Jcnningrs v. Florence [1857] 2 C. B. (N. S.) 467; Gilding v. ^yre
[1862] 10 C. B. (N. S.) 592; Churchill v. Siggera [18^] 3 El. & Bl. 929. And
r'ee Bank of British North America v. Strong [1876] 1 App. Gas. 307.
206 Cotterell v. Jones [1851] 11 C. B. 713; Attwood v. Monger [1053] Style.
378, per Roll, C. J.; Castrique v. Behrens [1801] 3 El. & El. 720; Redway v.
McAndrew [1873] L. II. 9 Q. B. 74; Quartz HIH Consol. G. Min, Go. v. Eyre,
11 Q. B. DIv. 674. and [1883] 52 Law J. Q. B. 488.
206 Brown v. Chapman, 1 W. Bl. 427; Farly v. Danks [1855] 4 El. & Bl. 493;
Cotton V. James, 1 Bam. & Adol. 128; Whitworth v. HaU, 2 Barn. & Adol-
(M)5; Johnson v. Emerson [1871] L. R. 6 Exch. 329; Quartz HiU Consol. G.
Min. Co. V. Eyre, 11 Q. B. Div. 674, and [188;i] 52 Law J. Q. B. 488.
207 Quartz Hill Consol. G. Min. Co. v. Eyre, 11 Q. B. Div. 074, and [1883]
52 Law J. Q. B. 4S8.
20 s Leigh V. Webb [1800] 3 Esp. 104; Elsee v. Smith [1822] 1 Dowl. & R. 28;
Wyatt V. White, 5 Hurl. & X. 371, and [1800] 29 Law J. Exch. 193. And see jj!
Cooper V. Booth, 3 Esp. 144. ^4?
200 Hope V. Evered, 17 Q. B. Div. 338, and [1880] 55 Law J. M. Cas. 146. ]!^
210 Steward v. Gromett [1859] 7 C. B. (N. S.) 191; Rex v. Doherty [1810]
13 East, 171; Drummond v. Pigou [1835] 2 Blng. N. C. 114; Turner v. Turner
[1818] Gow, 20.
- 1 1 Post, p. 630.
212 Everett v. Henderson, 146 Mass. 89, 14 N. E. 932; Lauzon v. Charroux
(R. L) 28 AU. 975; Potter v. Gjertsen, 37 Minn. 386, 34 N. W. 746. In the
>
Ch. 9] MALICIOUS PROSECUTION. 607
Preferring a bill before a grand jury is a suflficient prosecution to
support an action, whether the grand jury find a true bill or not.^**
With respect to the malicious institutions of civil suits, the au-
thorities are not entirely agreed as to what cases are within the
rule.*^* The general tendency of the American courts would seem
to be that, wherever the other elements of malicious prosecution
are present, it is immaterial whether the original proceedings be
civil or criminal. The broad ground is taken that the prosecution
of a civil action, maliciously and without proper cause, terminating
favorably to the defendant, produces an injury, for which recovery of
damages lies, although there has been no interference with the per-
son or property. An action has been held to lie for forcible entry
and unlawful detainer,^^* for the malicious issuance of an injunc-
tion,*^' for malicious attachment,^^^ or garnishment,*" so, for
same action malicious prosecution may be united with assault and battery.
Peterson v. Toner, 80 Mich. 350, 45 N. W. 346.
218 Taylor's Case [1G20] Palm. 44; Jones v. Gwynn, 10 Mod. 148; Chambers
V. Robinson, 2 Strange, 691; Whiteford v. Henthorn, 10 Ind. App. 97, 37 N.
B, 419 (where a teacher arrested a school trustee to test his right to appoint
another person and test her rights under contract). It is sufficient if the in-
dictment contains one count which is malicious and without reasonable and
proper cause. Reed v. Taylor, 4 Taunt 616; Dellsser v. Towne, 1 Q. B. 333;
Boaler v. Holder, 51 J. P. 277.
21* Cooley, Torts, ♦p. 187; Pol. Torts, 265. And see Bo wen, L. J., in Qiiartss
Hill Consol. G. Min. Co. v. Eyre, 11 Q. B. Div. 674r-690; Fivaz v. Nichols,
2 C. B. 501; Magnay v. Burt, 5 Q. B. 381. But see CottereU v. Jones, 11 C.
B. 713; At wood v. Monger, Style, 378; Castrique v. Behrens, 3*E1. & El. 720;
Redway v. McAndrew, L. R. 9 Q. B. 74. See Potts v. Imlay, 4 N. J. Tjaw,
377, commenting on early English cases.
215 Pope V. Pollock, 46 Ohio St, 367, 21 N. E. 356; Thompson v. GaUin, 7 C.
C. A. 351, 58 Fed. 534. But see Mayer v. Walter, 64 Pa. St. 283, collecting
cases. Cf. Slater v. Kimbro, 91 Ga. 217, 18 S. E. 206.
2i« Kohlsaat v. Crate, 144 111. 14, 32 N. E. 481; Newark Coal Co. v. Upson,
40 Ohio St. 17; Mark v. Hyatt, 61 Hun, 325, 15 N. Y. Supp. 885; Manlove v.
Vlck, 55 Miss. 567.
217 Zinn V. Rice, 154 Mass. 1, 27 N. E. 772; Tomliuson v. Warner, 9 Ohio,
104; Beyersdorf v. Sump, 39 Minn. 495, 41 N. W. 101; Hayden v. Shed, U
Mass. 500; Nelson v. Danielson, 82 lU. 545; Maskell v. Barker, 99 Cal. 642,
34 Pac. 340.
218 Schumann v. Torbett, 86 Ga. 25, 12 S. E. 185. Bankruptcy: Chapman
V. PlckersgiU, 2 Wils. 145; Farley v. Danks, 4 El. & Bl. 493. Et vide Quartz
608 MALICIOUS WRONGS. [Ch. 9
malicious issuance of a search warrant for goods charged to have
been stolen,'^' but not, it would seem, for ejectment,**" or an unau-
thorized action in the name of another.**^ But as to this there
is much dispute as to principle, and almost equal division of au-
thorities. On the one hand, it is urged that the defendant is ade-
quately compensated for the damages he sustains by the costs al-
lowed him; that, if such suits are allowed, vexatious litigation
will be encouraged (especially since a corresponding right of action
should accrue against one who defends without probable cause and
with malice), whereby parties would be unfairly subjected to sub-
sequent suits for bringing or defending actions of law.'** To
this it seems a complete answer to say that the English costs
HUl Consol. G. Min. Co. v. Eyre, 11 Q. B. Div. 674, Newark Coal Co. v. Up-
flon, 40 Ohio St 17; Smith v. Bui-nis, 106 Mo. 94, 16 S. W. 881; Butchers*
Union Slaughter-House & Live Stock Landing Co. v. Crescent City Live Stock
lAnding & Slaughter-House Co., 37 La. Ann. 874. But compare McNamee v.
Minke, 49 Md. 122, and Kraiise v. Spiegel, 94 Cal. 370. 29 Pac. 707. The law-
ful use of process, neither arresting the person nor seizinig the goods, may not
Ije basis of action. Eberly y. Rupp, 90 Pa. St 259.
2i» Carey v. Sheets, 07 lud. 375; Id., 60 Ind. 17; Boeger t. Langenberg, 97
Mo. 300, 11 S. W. 223; Whitson v. May, 71 Ind. 264; MiUer v. Brown. 3 Mo.
127; Olson r. Tvete, 46 Minn. 225, 48 N. W. 914. Further, as to what Is suffi-
cient prosecution, see Dubois y. Keats, 11 Adol. & E. 329; Fitzjohn y. Mack*
inder, 9 C. B. (N. S.) 505; Eagar y. Dyott, 5 Car. & P. 5.
a«o Muldoon y. Rickey, 103 Pa. St. 110. Et vide Norcross v. Otis Bros. &
Co., 152 Pa. St. 481, 25 Atl. 575; Gonzales y. Cobliner, 68 Cal. 151, 8 Pac
€D7; Brown y. Cape Girardeau, 90 Mo. 377.
221 Bond y.'Chapin, 8 Mete. (Mass.) 31.
322 Say ill y. Roberts, 1 Ld. Raym. 374; Purton y. Honnor, 1 Bos. & P. 205;
Cotterell v. Jones, 11 C. B. 713; Quartz Hill Consol. G. Mln., Co. y. Eyre, 11
Q. B. Div. 674; Ray y. Law, Pet. C. C. 207, Fed. Cas. No. 11,592; Mitchell y.
South Western R. Co., 75 Ga. 398; Smith y. Hintrager, 67 Iowa, 109, 24 N. W.
744; Cade v. Yocum, 8 La. Ann. 477; McNamee y. Minke, 49 Md. 122 (see
Clements y. Odorless Excavating Apparatus Co., 67 Md. 461, 10 Atl. 442, and
13 Atl. G32); Woodmansie y. Logan, 1 N. J. Law, 93; Potts y. Imlay, 4 N. J.
Ltfiw, 330; State y. Meyer, 40 N. J. Law, 252; Kramer y. Stock, 10 Watts
<Pa.) 115; Mayer y. Walter, 64 Pa. St. 283; Muldoon y. Rickey, 103 Pa. St.
110; Emerson y. Cochran, 111 Pa. St. 619, 4 Atl. 498; Smith y. Adams, 27
Tex. 28; Johnson y. King, 64 Tex. 220; 1 Swift, Dig. 492; Wetmore y. MelUn-
ger, 64 Iowa, 741, 18 N. W. 870; Eberly y. Rupp, 90 Pa. St. 259; Lucy y. Met-
ropolitan Life Ins. Co., 31 Wkly. Law Bui. 22; Hibbard y. Ryan, 46 111, App.
5J13.
Ch. 9] MALICIOUS PROSECUTION. 609
afford a much broader compensation than is afforded by the nar-
row limits within which costs are taxed in this country;*** that
the burden of proof on the litigant is a sufficient deterrent
from unjustifiable suits for malicious prosecution, so far as the
plaintiff in the original proceeding is concerned; and that the
argument as to the corresponding right of action against a defend-
ant improperly imposing a defense fails to distinguish between the
position of the parties in the action of law, it being the plaintiff
that sets the law in motion, while the defendant merely stands on
his legal right.*** If, however, the defendant should, in a counter-
claim, demand an affirmative judgment against the plaintiff, the
soundness of this latter reasoning might be questioned. The high-
ly artificial character of the restriction as to requirement of inter-
ference of persons or seizure of property to make out a case of mali-
ss* Indeed, before the statute entitling defendant to costs in snch action ex-
isted, they had a remedy at common law. Co. Lltt 161a; 3 Lev. 210; 2 Wlls.
305, 379; 4 Mod. 13. See review of authorities by Church, J., In Whipple v.
Puller, 11 Conn. 582.
224 McPherson v. Runyon, 41 Minn. 525, 43 N. W. 392, and cases cited;
Smith y. Burrus, 106 Mo. 94, 16 S. W. 881; Brounstein v. Sahlein, 65 Hun,
365, 20 N. Y. Supp. 217; Green v. Cochran, 43 Iowa, 544; O'Neill v. Johnson,
53 Minn. 439, 55 N. W. 601; 21 Am. Law Reg. (N. S.) 281; Bastin v. Bank of
Stockton, 66 Cal. 123, 4 Pac. 1106; Berson v. Ewing, 84 Cal. 89, 23 Pac. 1112;
Hoyt V. Macon, 2 Colo. 113; Whipple v. Fuller, 11 Conn. 582; Wall v. Toomey.
52 Conn. 35; Payne y. Donegau, 9 lU. App. 566; McCardle v. McGinley, 80
Ind. 538; Burnap y. Albert, Taney, 244, Fed. Cas. No. 2,170; Marbourg y.
Smith, 11 Kan. 554; Cox y. Taylor, 10 B. Mon. (Ky.) 17; Woods v. FinneU.
13 Bush (Ky.) 628; Allen y. Codman, 139 Mass. 136, 29 N. E. 537; Bi-own v.
City of Cape Girardeau, 90 Mo. 377, 2 S. W. 302; Pangbum y. Bull, 1 Wend.
345; Dempsey y. Lepp, 52 How. Prac. 11; Smith ^y. Smith, 56 How. I>rac.
316; Willard v. Holmes, Booth & Haydens, 2 Misc. Rep. 303, 21 N. Y. Supp.
998; Pope y. Pollock, 46 Ohio St 367, 21 N. E. 356; Closson v. Staples, 42
Vt 209; Watson y. Freeman, Hob. 205; Chapman y. Pickersglll, 2 Wils. 145.
In 1779 an action was brought in an ecclesiastical court for malicious prosecu-
tion of plaintiff for incest No objection was raised to the nature of the pros-
ecution, although a demurrer to the declaration was sustained on other
grounds. Fisher y. Bristow, 1 Doug. 215. So Bailey, J., said (Elsee y. Smith,
2 Chit 304): "If a party falsely, maliciously, and without probable cause, put
the law in motion, that is properly a subject of an action on the case." See
articles of Mr. Lawson (21 Am. Law Reg. [N. S.] 281).
LAW OF TORTS— b9
610 MALICIOUS WRONGS. [Cb. 9
cions proseontion is shown by the absence of any corresponding re-
quirements in actions for malicious abuse of process.'**
SAME— TERMINATION OF PROCEEDING.
188. To maintain an action for malicious prosecution, the
plaintiff must show that the original proceeding
terminated in his favor, if, firom its nature, it was
capable of such termination; and such termination
must have been final, so that it cannot be reviewed.
Success of Plaintiff.
The original proceeding complained of as the basis for an action
of malicious prosecution must have terminated in favor of the plain-
tiff.*'* The action of malicious prosecution must not be brought be-
fore the first. proceeding is determined, because until then it cannot
appear that the first cause was unjust.**^ **For maliciously, prose*
cuting a good cause of action in the manner provided by law,
• * • there is no remedy, because there is no wrong." **• If the
original proceeding has not terminated in the plaintiffs favor, all
questions as to malice, want of proper cause, and the like, are im-
225 2 Saund. PL & Bv. 051; I.udington v. Peck, 2 Conn. 700; Swift v. Chain-
herlaic. 3 Conn. 537: Wat«on v. Watson, 9 Ccnn. 141; 2 Selw. N. P. 1054.
22« O'Brien v. Barry, lOO Mass. 300; Basebe v. Matthews, L. R. 2 C. P. BW;
Continental Const. & Imp. Co. v. Vinal, 48 Hun, 620, 1 N. Y. Snpp. 200. As
to sufticienoy of allegation as to termination of oriirinal proceeding, see Horn
▼. Sims, 02 Ga. 421, 17 S. E. G70. And compare Tisdale v. Kingman, 34 S.
C. 320, 13 S. E. 547. with Sneeden v. Harris, 109 N. C. 349. 13 S. E. 920;
Arundel v. Tregono, Yelv. 116; Fisher v. Bristow, 1 Doug. 215; Morgan v.
Hughes, 2 Term R. 225uWhitworth v. Hall, 2 Barn. & Adol. 695; Castrique
V. Bebrcns, 3 El. & El. 700. For a sufficient aUegation of termlnationB of
p/Dceedlngs. see Horn v. Sims, 92 Ga. 421, 17 S. B. 670. Compare Tisdale
V. Kinginau, 34 S. C. 32(5, 13 S. E. 547, with Sneeden v. Harris, 109 N. C.
349, 13 S. E. 920.
227 Bull. N. P. 12; Haniilburgh v. Shephard, 119 Mass. 30; O'Brien v. Barry,
106 Mass. 300; Woodwonh v. Mills, 61 Wis. 44, 20 N. W. 728; Lowe v. Wart-
man, 47 N. J. Law, 413, 1 Atl. 4S9; West v. Hayes, 104 Ind. 251. 3 N. E.
932; 14 Am. & Eng. Enc. Law, 28, 42, collecting cases.
22 8 Per Field, J., in Johnson v. Reed, 136 Mass. 421-423. And see Macey
T. Childress, 2 Tenn. Ch. 442; I^uzon v. Charroux (R. I.) 28 Atl. 975.
Ch. 9] MALICIOUS PROSECUTION. 611
material.*** Where, however, the proceedings are ex parte, and the
plaintiff had no opportunity of being heard, there is an exception to
the rule ''® requiring success of the plaintiff in the original proceed-
ing. Conviction is as unfavorable to the plaintiff's case as ac
quittal is favorable.*"* Discharge without judgment or verdict in
a civil suit is sulHcient.*** But acquittal or conviction or discharge
or favorable verdict are not the only alternatives. Abandonment
may be a termination sufficiently favorable to the plaintiff.*** It
would seem — although there is doubt on the point *** — ^that the en-
try of a nolle prosequi by the prosecuting officer is a sufficient dis-
charge.*** Discharge by a magistrate on preliminary examination,
if found by the jury to be absolute, will entitle the plaintiff to re-
«2» Her^enrather v. Splelman (Md.) 22 Atl. 1106. But see Foetiimn v. Rot-
tier, 8 Ohio St 548.
2»o Steward y. Gromett. 7 C. B. (N. S.) 191. Et vide Bunebe v. Matthews,
Tj. R. 2 C. P. 684; Rex v. Doherty, 13 East, 171. Compare Hyde v. Greuch,
G2 Md. 577; Zinn y. Rice, 154 Mass. 1, 27 N. E. 772, collecting cases; Parker
y. Huntington, 2 Gray, 125.
231 Post. p. 618.
S3S Zinn v. Rice, 154 Mass. 1, 27 N. E. 772; Rossiter y. Minnesota Biadner-
Smith Paper Co., 37 Minn. 296, 33 N. W. 855; NewariL Coal Co. y. Upson, 40
Ohio St 17.
sxCardiyal y. Smith, 109 Mass. 158^ Chase, Lead. Cas. 102; Leeyer y.
HamiU, 57 Ind. 423; Swensgaard y. Dayis, 33 Minn. 368, 23 N. W. 543;
Pixley y. Reed, 26 Minn. 80, 1 N. W. 800; Rossiter y. Minnesota Bradner-
Smith Paper Co., 37 Minn. 296, 33 N. W. 855. But see Williams y. Taylor, 6
Bing. 183.
234 Brown y. Randall, 36 Conn. 56; Hays y. Blizzard, 30 Ind. 457; Chap-
man y. Woods, 6 Blaclcf. 504;- Stanton y. Hart, 27 Mich. 539; Wood worth
y. Mills, 61 Wis. 44, 20 N. W. 728; Kennedy y. Holladay, 25 Mo. App. 503;
BeU y. Matthews, 37 Kan. 686, 16 Pac. 97; Hatch y. Cohen. 84 N. C. 602;
Clegg y. Waterbury, 88 Ind. 21.
236 Ben y. Matthews, 37 Kan. 686, 16 Pac. 97; Moulton y. Boooher, 1
Abb. N. C. 193, Chase, Lead. Cas. 103; Bacon v. Towne, 4 Cush. 217; I*ar-
ker y. Farley, 10 Cush. 279; Brown y. Lakeman, 12 Cush. 482; Cardlval y.
Smith, 109 Mass. 158. Nol pros, not enough without order of discharge by
court, Langford y. Boston & A. R. Co., 144 Mass. 431, 11 N. E. 697. But see
Grayes y. Dawson, 133 Mass. 419. But see same case, 130 Mass. 78, where
discharge after binding over and before indictment on motion of district
attorney, followed by nol pros., held sufficient. Et vide Thompson v. Price
(Mich.) 59 N. W. 253.
(U2 MALICIOUS WRONGS. [Ch. 9
coyer.*" But where a judge, on construing statement of facts, is-
sues a warrant for the violation of a particular statute, but subse-
quently diHcharges the prisoner on a change of opinion as to the law,
there is no ground for an action for malicious prosecution.**' A
compromise of the first cause of action is not, in general, suffi-
cient,*** nor is an indictment quashed for insufficiency in law.^**
But voluntary discontinuance of prosecution will not raise a pre-
sumption of malice against, nor put on, the defendant in a suit for
malicious prosecution, the burden of showing probable cause.***
SAME— PABTIES TO FBOGEEDINO.
198. The plaintiff in malicious prosecution must have been
the defendant or accused in the original proceeding.
The defendant in malicious prosecution must have
been actually instrumental in putting process of
law into force, directly or indirectly.
The plaintiff in malicious prosecution must have been a defend-
ant in the original proceeding. Therefore a third person, not a
party to a proceeding by a judgment creditor to attach lands as the
property of the judgment debtor, by which a cloud was cast on the
title of such third person, cannot maintain an action against the
creditor for malicious prosecution.***
«s« Robblns v. Robblns. 133 N. Y. 59T. 30 N. E. 977; Mentel T. Hippely
(Pa. Sup.) 30 A. 1021; Bigelow v. Sickles, SO Wis. 98. 40 X. W. lOG; Dreyfus
V. Aul, 29 Neb. 191, 45 N. W. 282. Cf. Ross v. Hixou, 4G Kan. 550, 20
Pae. 955; Tucker v. Cannon, 28 Neb. 19C, 44 N. W. 440. Dismissal of a war-
rant by a Justice with the consent of the party prosecuting is a sufficient
determination of the proceeding to authorize an action for malicious prose-
cution. Welch V. Cheek (N. C.) 20 S. E. 460.
287 Armstrong v. Vlcksburg. S. & P. R, Co. (La.) 16 South. 468.
288 Gallagher v. Stoddard, 47 Hun, 101; Mayer v. Walter, 64 Pa. St. 283;
Emery v. Glnnan, 24 111. App. 65; Rosenberg v. Hart, 33 111. App. 262; Mc-
Gormlck v. Slsson, 7 Cow. 715; Hammllburgh v. Shepliard, 119 Mass. 30.
a 89 McKensle v. Missouri Pac. Ry. Co., 24 Mo. App. 392.
240 But discharge by court on failure of grand jury to indict Is. Joiner ▼.
Ocean S. S. Co. iGa.) 12 S. E. 361; Darnell y. Sailee, 7 Ind. App. 5S1, 34 N.
E. 1020.
241 Duncan v. Griswold, 18 S. W. 354.
Ch. 9] MALICIOUS PROSECUTION. 613
As to parties defendant, the general principles already consid-
ered apply. There may be direct liability.'*' To attach such lia-
bility it is not necessary tliat the defendant should subscribe to the
complaint on which the arrest was made. But merely a complain-
ing witness is not responsible for process issued by a court on his
testimony.'*" The test is, was defendant a'ctively instrumental in
putting the law into force.'** An attorney is not liable in an action
for malicious prosecution, unless, in conducting the litigation com-
plained of, he knew there was no cause of action, and knew also
that his client was acting solely from illegal or malicious motives;
and in forming his opinion upon these matters he has a right to act
upon such information as his client imparts, and is not bound to in-
form himself elsewhere.'*'' The liability may attach indirectly.
Thus, the master, within limits already discussed, is held liable for
242 Chapman y. I>odd, 10 Minn. 350 (Gil. 277). As against a corporation,
Kent y. Courage, 55 J. P. 264. As to joint tort feasors, see Jones y. Jenkins, 3
Wash. St 17, 27 Pac. 1022; Rosenberg y. Hart, 33 lU. App. 262. Attorney and
client. Peck y. Chouteau, 91 Mo. 138, 8 S. W. 577; Sneeden y. Harris, 109 N.
C. 349, 13 S. B. 920; Stansbury y. Fogle, 37 Md. 360; Clements y. Ohrly, 2 Car.
& K. 686; Beyersdorf y. Sump, 39 Minn. 495, 41 N. W. 101. As to partners,
Cole y. Curtis, 16 Minn. 182 (Gil. 161).
243 Willmerton y. Sample, 42 111. App. 254; Hahn y. Schmidt, 64 Cal. 284,
30 Pac. 818; White y. Shradski, 36 Mo. App. 635; Wasserman y. Louisyille
& N. B. Co., 28 Fed. 802. As to an officer serying a warrant, see Lueck y.
Heisler, 87 Wis. 644, 58 N. W. 110.
244 Danby y. Beardsley, 43 Law T. 603, per Justice Lobey. This is the only
definition explicitly suggested. Stephens, Mai. Pros. 5. Et yide Vennnm y.
Huston, 38 Neb. 293, 56 N. W. 970; Harris y. Warre, L. B. 4 C. P. 125; Dayls
y. Noake, 6 Maule & S. 29; Cohen y. Morgan, 6 Dowl. & B. 8. Where defend-
ant furnished an inspector with facts on which he filed an information against
plaintiff charging a distinct offense, defendant cannot escape liability for ma-
licious prosecution on the ground that the prosecution was instituted through
mistaken judgment on the part of the inspector (Newman y. Dayis, 58 Iowa,
449, 10 N. W. 852, distinguished). Holden y. Merritt (Iowa) 61 N. W. 390.
Leigh y. Webb, 3 Esp. 164; Elsie y. Smith, 1 Dowl. & B. 97; Clarke y.
I^ostan, 6 Car. & P. 423; Jones y. Nichols, 3 Moore & P. 12; Dawson y. Vausan-
dau, 11 Wkly. Bep. 516; Fitzjohn y. Mackinder, 9 C. B. (N. S.) 505; Clements
y. Ohrly, 2 Car. & K. 686; Brown y. Chadsey, 39 Barb. 253; Pierce v. Thomp-
son, 6 Pick. (Mass.) 193; Blcknell v. Dorion, 16 Pick. (Mass.) 478.
246 Peck y. Chouteau. 01 Mo. 138, 3 S. W. 577.
614 MALICIOUS WRONGS. [Ch. 9
the acta of his servants.^** An officer, in executing a warrant of
arrest in a criminal proceeding, does not, however, act as the agent
of the person upon whose complaint the proceeding was instituted,
and such person is not liable for the acts of the officer unauthorized
by the warrant or In- such person, and the declarations of the officer
are not admissible to bind such persons.*^^ The ordinary rules as
to exemption from liability apply. Therefore a grand juror **• or
a justice of the peace ^^* is not liable in such an action.
The plaintiff's consent may bar his right of action. Thus, an ac-
tion for malicious prosecution of a judgment will not lie where the
debtor submitted to the attachment and paid the debf ®
SAME— MALICE AND WANT OF PBOBABLE CAUSE.
200. Want of probable cause and malice must concur to
sustain an action for malicious prosecution.
Malice.
'^Malice," as here used, is not necessarily synonymous with ^^anger,"
"wrath," or "vindictiveness." Any such ill feeling may constitute
34« Flora T. RuBseU (Ind. Sup.) 37 N. E. 593. Thus, an insurance company
may be held liable for the acts of its superintendent in arresting plaintiff for
larceny. Lyenlierger v. Paul, 40 111. App. 516; Humphrey y. Prudential Ins.
Ck>., 02 Hun, 618, 16 N. Y. Supp. 480. But the principal is not liable for the In-
dependent prosecution by his agent Springfield I^nglne & Threshing Ca v.
Green, 25 111. App. 106. And evidence that the defendant in an action for ma-
licious prosecution employed a person to search for property he had lost, and
to take aU legal steps necessary for its recovery, and that such i)er8on charged
plaintiff >vith larceny of tlie property, and caused his arrest, does not sustain
a verdict for plaintiff. Murrey v. Kelso (Wash.) 38 Pac. 879. Agent of cor-
poration making complaint on advise of company's attorney is not liable.
Jordan v. Alabama G. S. R. Co., 81 Ala. 220, 8 South. 191. Company is not lia-
ble for its watchman's independently causing arrest. Govaski v. Downey,
100 Mich. 429, 59 N. W. 107.
«47 Relsan v. Mott. 42 Minn. 49, 43 N. W. 691; Bartlett v. Hawley, 38 Minn.
308-312, 37 N. W. 580; Zebley v. Storey, 12 Ati. 569.
s«8 Sidener v. Russell, 34 III. App. 446; Thornton v. MarshaU, 92 Ga. 548.
17 S. E. 926.
24 » Vennum v. Huston, 38 Neb. 203, 56 N. W. 970.
200 Hibbard v. Ryan, 46 IlL App. 313.
Ch. 9] MALICIOUS PROSECrTION. 615
malice.*"* But it may be no more than the oppoBite of bona fides.
Any prosecution carried on knowingly, wantonly, or obstinately, or
merely for the vexation of the person prosecuted, is malicious.**^*
Every improper or sinister motive constitutes malice, in this sense.'**
Thus, where reputable citizens are wantonly and illegally arrested
and incarcerated in a jail on false charges of grave crimes, and
thereafter the prosecutor confesses that his only purpose was to
procure immunity from prosecution of his brother for the same of-
fense, the prosecution is malicious and without probable cause.*'^
The plaintiff is not required to prove ^'express malice," in the popular
sense.**" The test is, was the defendant actuated by any indirect
motive, in preferring the charge or commencing the action against
the plaintiff.*"" Malice may be express, or it may be implied from
2B1 Evidence of a statement hy defendant that if plaintiff did not act peacea-
bly, and behave himself, he would "put him behind the bars," is admissible to
show malice. Holden v. Merritt (Iowa) Gl N. W. 31K); Strattou y. Lockhart,
1 Ind. App. 380, 27 N. B. 715; Thurston v. Wright. 77 Mich. 96, 43 N. W. 860;
Farrar v. Brackett, 86 Ga. 463, 12 S. E. 686; By ford v. Girton (Iowa) 57 N. W.
58S. Zeal in prosecution may be evidence of malice. Mark v. Hastings (Ala.)
13 South. 2d7. Appearance before a grand jury upon subpoena is prima facie
not malicious. Smith v. McDaniel, 5 Ind. App. 581, 32 N. E. 798. Offer to
arbitrate or compromise before attaching is evidence of negative malice.
Lewis V. Taylor (Tex. Civ. App.) 24 S. W. 92. In an action for the malicious
prosecution of a writ of attachment, evidence that defendant was informed
by a derk of plaintiff of his business and financial affairs, and of his efforts
to borrow money and dispose of his property, is admissible, as tending to rebut
malice and show probable cause. Le Clear y. Perkins (Mich.) 61 N. W. 357.
A publication that an ''enticing article" had recently been sent out by plaintiff,
asking subscriptions to a business corporation organized by him, is not prejo*
dicial to plaintiff in his profession of lawyer, as it has no relation to his char-
acter or conduct as a lawyer. Keene v. Tribune Ass*n of New York, 76 Hun,
488. 27 N. Y. Supp. 1045; Burton v. 0*Niell. 6 Tex. Civ. App. 613, 25 S. W. 1013.
«52 Kerr v. Workman, Add. (Pa.) 270.
263 Tindal, C. J., in Stockley v. Hornidge, 8 Car. & P. 16.
25* Pace V. Aubrey, 43 La. Ann. 1052, 10 South. 381. Et vide Chicago, B. &
Q. R. Co. V. Kriski, 30 Neb. 215, 46 N. W. 520; Smith v. Burrus, 106 Mo. W,
16 S. W. 881.
256 PuUen V. Glidden, 06 Me. 202; Lunsford v. Dietrich, 93 Ala. 565, 9 South.
308; Musgrove v. Newell, 1 Mees. & W. 582; Sutton v. Johnstone, 1 Brown,
Pari. Cas. 76; Judson v. Reardon, 16 Minn. 431 (Gil. 387).
266 Hicks V. Faulkner. 8 Q. B. Div. 167; Brown v. Hawkes [1891] 2 Q. B. 718.
Et vide Mitchell v. Jenkins, 5 Barn. & Adol. 588; Garrett v. Manneihmer, 24
616 MALICIOUS WRONGS. [Ch. 9
want of probable cause,''^ but it does not f<rflow as a necessarr
inference.***
pTobahle Cntwe.
'Trobable cause, in criminal cases, is such conduct on the part
of the accused as may induce the court to infer that the prosecution
was undertaken for public motives." ••• In Hicks v. Faulkner,***
reasonable cause is divided into four parts, viz.: (1) An honest be-
lief of the accuser in the guilt of the accused. (2) Such belief
must be based on an honest conviction of the circumstances which
lead the accuser to that conclusion. (3) Buch secondly mentioned
belief must be based upon such reasonable grounds as would lead
any fairly cautious man in the defendant's situation so to believe.
(4) The circumstances so believed and relied on by the accuser must
be such as to amount to reasonable ground for belief in the guilt of
the accused.'**
Probable cause, in civil actions, is such reasons, supported by
facts and circumstances, as will warrant a cautious, reasonable, and
prudent man in the honest belief that his action, and the means taken
in prosecution of it, are legal, just, and proper.*** Thus, for ex-
ample, where the plaintiff and his compani<ms, having been diR-
charged by the defendant, tore paper from the walls in their room in
the defendant s house, and set fire to it, leaving matches and
smouldering papers on the floor, these are circumstances constitut-
ing reasonable and probable cause to justify prosecution for arson.**'
Hlnn. 193. "Any motive other than that of simply institntiiig a prosecution
for the purpose of bringing a person to jostloe is maUcioiis.*' Stevens t. Mid-
land Counties Rj. Co., 10 Exch. 352; Coleman t. ADen, 79 6a. 637.
s»T Smith T. Burnis. lOG Mo. ^ 16 S. W. 8S1.
«ft3 Oirtwright T, EUiott, 45 III. App. 458.
>•• If plaintiff was innooent of the crime; but defendant had reascMiabie
gnniiul for s^uspioion, suMHtrted by circamstances strong «ioagh in them-
solves to warraot a cautious man In the belief tha| he was guilty the jury
sluntUl find for the defendants. Hurlbut t. Boaz, 4 Tex. Cir. App. 371, 23
& AY, 446.
««» S Q. R DiT. 167, in. 172.
tt\ The imitortance of this decision was, howerer, greatly diminished by
Abrath t. North-Eastem Ry. Coc, K R. U Appi Gas. 247; Steph. MaL Pros.
, t?i\ Tin
t*i IVntoQ V. St, PauL M. & M. Ry. Co., 33 Minn. 1S9, 22 N. W. 300.
I i«« NaoUtinau v. II;iu.ii.or, iro I"^ St. 200, 26 AtL 311. Unexplained re-
Ch. 9] MALICIOUS PROSECUTION. 617
Where the defendant had the plaintiff arrested for maliciously injur-
ing water pipes, though he knew that what plaintiff did was done
under order of the park commissioner, this was held sufficient to
submit to the jury the question, and to justify the finding of want
of probable cause.*** But where the plaintiff was employed to col-
lect the accounts of a corporation which had agreed to pay certain
of his debts, and, the company failing to pay such debts, the plaintiff
notified it that he had collected certain money for it, which he would
turn over as soon as it paid said debts, which amounted to as much
as the sum collected, it was held that these facts showed no prob-
able cause for charging the plaintiff with embezzlement.***' The
absence of a probable cause may also be inferred from the institution
of a criminal suit for the sole purpose of collecting a debt.*'*
cent possessloD of stolen property may Justify arrest for larceny. Thomp-
son V. Richardson, 96 Ala, 488, 11 South. 728; Ferguson y. Arnow, 142 N.
Y. 580, 37 N. E. 620; Mahaffey v. Byers, 151 Pa. St. 92, 25 Atl. 93. Jones v.
Jones, 71 Cal. 89, 11 Pac. 817; Brown y. Master (Ala.) 16 South. 4-i3. In
embezzlement, see Rankin v. Crane (Mich.) 61 N. W. 1007; Tucker y. Gannon,
32 Neb. 444, 49 N. W. 435. In perjury, see Dawson y. Schloss, 93 Gal. 194,
29 Pac. 31. And, generally, see Molloy y. Long Island Ry. Co., 59 Hun,
424, 13 N. Y. Supp. 382; Mell y. Earner, 135 Pa. 151, 19 Atl. 940; AUen v.
Codman, 139 Mass. 136. 29 N. E. 537; Sheahan y. National S. S. Go. (Sup.)
20 N. Y. Supp. 740; Withan y. Thomas, 66 Hun, 632, 21 N. Y. Supp. 170;
Wrench v. Samenfeld (Sup.) 19 N. Y. Supp. 948; Willard y. Holmes, Booth &
Haydens (Com. PI. N. Y.) 21 N. Y. Supp. 998. reversed in 142 N. Y. 492. 37
N. E. 480; Sprague y. Gibson, 63 Hun, 626. 17 N. Y. Supp. 685; Central Ry.
Co. V. Brewer, 78 Md. 394, 28 Atl. 615; Richard v. Boland, 5 Misc. Rep. 552,
26 N. Y. Supp. 57; Thomas y. Smith, 51 Mo. App. 605.
264 Wass y. Stephens (Sup.) 6 N. Y. Supp. 131; Id., 128 N. Y. 123, 28 N. E.
21. Et yide Hooper y. Vernon, 74 Md. 136, 21 Atl. 556.
26 6 Brooks y. Bradford (Colo. App.) 36 Pac. 303. Et yide Mahaffey y. Byei-s,
151 Pa. St 92, 25 Atl. 93; Hazzard y. Flury, 120 N. Y. 223, 24 N. E. 194;
Willard y. Holn;e8, Booth & Haydens, 142 N. Y. 492, 37 N. E. 480, oyerruling
(Com. PL N. Y.) 21 N. Y. Supp. 998; BandeU y. May (Sup.) 15 N. Y. Supp. 273;
Horn y. Sims, 92 Ga. 421, 17 S. E. 670. The mere fact that plaintiff had In
his possession a ring, which defendant believed to be one stolen from him, is
not sufficient to constitute a probable cause for plaintiff*8 arrest. Jonasen v.
Kennedy, 39 Neb. 313, 58 N. W. 122. Further, see Brooks y. Bradford, 4 Colo.
App. 410, 36 Pac. 303; Darnell v. Sallee, 7 Ind. App. 581, 34 N. E. 1020; Flora
y. Russell (Ind. Sup.) 37 N. E. 593.
26» KimbaU y. Bates, 50 Me. 308; Paddock y. Watts, 116 Ind. 146, 18 N. B.
518; Lueck y. Helsler, 87 Wis, 644, 58 N. W. 1101. Et vide Toomey y. Dela-
ware, L. & W. R. Co. (Super. N. Y.) 21 N. Y. Supp. 418; Neufeld y. Rode-
018 MALICIOUS WUONGS. [Ch. 9
Inference from Q>nric<irjn, Acquittal^ or Dismissal.
Conviction of the crime charged is, in general, evidence of prob-
able cause. But the authorities are not agreed as to whether such
evidence is final. On the one hand, it is contended that, in the ab-
sence of fraud procuring conviction,*'^ a conviction by a trial court
is conclusive against the plaintiff,*** although followed by acquittal
on appeal.**' On the other hand, it is insisted that proof of convic-
tion is only such evidence as is sufficient to establish probable cause
if not overcome.*^* Conviction does not, however, negative mal-
ice."^
mlDSki, 144 111. 83, 32 N. E. 913. But the fact that the defendants in an
action for malicious prosecution offered to refrain from prosecuting the plain-
tiff if he would repay the money he had misappropriated is not sufQcient to
show a want of probable cause for the prosecution. Rankin v. Crane (Mich.)
61 N. W. 1007.
2«T payson v. Gasewell, 22 Me. 212. Comijare Lawrence v. Cleary, 88 Wis.
473, eo N. W. 793; Morton v. YouDg, 55 Me. 24.
2«»CrPscent City Live-Stock Landing & Slaughterhouse Co. v. Butchers*
Union Slaughterhouse & Live-Stock Landing Co., 121 U. S. 140, 7 Sup. Ct.
472; Oppenhelmer v. Manhattan Ry. Co., 03 Hun, 633, 18 N. Y. Supp. 411;
Parker v. Huntington, 7 Gray, 30; Cloon v. Gerry, 13 (3 ray, 201; Boogher r.
Hough, 99 Mo. 184, 12 S. W. 524; Parker v. Farley, 10 Cush. (Mass.) 279;
Adams v. BickneU, 120 Ind. 211, 25 N. E. 801, and cases therein cited; Whit-
ney V. Peckliam, 15 Mass. 243; Phillips v. Village of Kalamazoo, 53 Mich.
:{3, 18 N. W. 547; Smith v. Macdonald, 3 Esp. 7; 14 Am. & Eng. Bnc Law,
06; 2 Greenl. Ev. fi 457.
289 Adams v. BickneU, 126 Ind. 210, 25 N. E. 804; Reynolds v. Kennedy,
1 Wlls. 232. Compare Mellor v. Baddeley, 2 Cromp. & M. 675; Basebe v,
Matthews. L. R. 2 C. P. 684. But see Boaler v. Holder, 51 J. P. 277; Marks
V. Townsend, 07 N. Y. 500. As to the Inference of probable cause from con-
viction, or even indictment, when a new trial may be subseauently granted,
see Whitney v. Peckham, 15 Mass. 243. See Bacon v. Towne, 4 Cush. 217;
Cloon V. Gerry, 13 Gray (Mass.) 201; HU. Torts. 457; Cooley, Torts (2d Ed.)
214; ante, p. 611, note 239. As to inference from dismissal of complaint.
Wheeler v. Hanson, 161 Mass. 370, 37 N. E. 382. The voluntary discontinu-
ance of a civil suit is not prima facie evidence that it was maliciously insti-
tuted. Smith V. Burrus, 100 Mo. 94, 16 S. W. 881. Cf. Ross v. Hlxon, 46
Kan, 550, 20 Pac. 055; Blgelow v. Sickles, 80 Wis. 98, 49 N. W. 106; Funk v.
Amor, 7 Ohio Cir. Ct B. 419.
2T0 Moffatt V. Fisher, 47 Iowa, 473; Arnold v. Moses, 48 Iowa, 694. See,
also, Olson v. Neal, 63 Iowa, 214, 18 N. W. 863; Bowman v. Brown, 62 Iowa,
437, 3 N. W. 609; Barber v. Scott (Iowa) 60 N. W. 497; Knight v. International
«Ti Lewton v. Hower (Fla.) 16 South. 616.
Ch. 9] « MALICIOUS PROSECUTION. 619
Similarly, acquittal is prima facie evidence for the plaintiff; but this
may have been shown to have been obtained by fraud, as by breach
of yerbal stipulation for continuance.*'* Acquittal may be proved
without producing a copy of the records, but may be so proved, and
in cases of felony the record must be produced.*'* The voluntary
dismissal of an action is not an admission of want of probable
cause.*'*
Effect of Honed Belief,
Probable cause naturally depends upon the good faith and honest
and reasonable belief of the defendant.*'* "And although the facts
known make out a prima facie case of guilt, yet if the circumstances
are all consistent with the innocence of the party, and the prosecu-
tor knows the accused is not guilty, or does not believe him to be
guilty, he cannot have reasonable cause for the prosecution." *'•
This is to be determined by a consideration of all the circumstances
of the case which had happened at the time of commencing the orig-
inal proceeding. Tlius, proof that the plaintiff had waived the pre-
liminary examination on the criminal charge, and had been indicted,
and that the jury had disagreed, furnishes evidence of probable
cause. But, if the defendant had full knowledge of all the material
charge, he is liable, though he did not appear before the grand
& G. N. Ry. Co., 9 C. C. A. 37G, 61 Fed. 87. A judgment of conviction in a
criminal court is conclusive only between the parties,—!, e. the state and the
defendant,— but is no estoppel as between the defendant tind strangers to
the record. Johnson v. Gird wood (Com. PI. N. Y.) 28 N. Y. Supp. 151. A
Judgment of conviction on a plea of guilty may be avoided collaterally by
proof that the plea was induced by the fraud, duress, and conspiracy of the
person seeking to avail of it. Johnson v. Girdwood, supra.
2T2 Leyenberger v. Paul, 40 111. App. 510. Compare Stevens v. Metropoli-
tan Ins. Co., 21 N. Y. Supp. 1024; Sutton v. MeConnell, 46 Wis. 2G0, 50 N. W.
414. The fact that a plaintiff in an action for malicious prosecution was dis-
charged upon his examination is not conclusive evidence of a want of prob-
able cause for the prosecution. Rnnkin v. Crane (Mich.) 61 N. W. 1007.
2T3 Morrison v. Kelly, 1 W. Bl. 384; Reg. v. Brangan, 1 Leach, Club Cas. 27.
2T4 Asevado v. Orr, 100 Cal. 293, 34 Pac. 77.
27B Barton v. Kavanaugh, 12 La. Ann. 332.
27« Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728; Fagan v. Knox, 1 Abb.
N. C. 246; Griffin v. Chubb, 58 Am. Dec. 85; Prough v. Enti-iken. 11 Pa. St.
81; Sharpe v. Johnston, 76 Mo. 660; Roy v. Goings, 112 111. 656; B/ewer v.
Jacobs, 22 Fed. 217; Ravenga v. Mackintosh, 2 Barn. & C. 0:);5-61>S.
^>20 M ALICIOUB WB05G8. . [€b. 0
jnry.^'^ But the mere honest belief that there was a good chance
for convirtion of false pretense does not jostify an arrest, althoogh
the person arrested may have made erroneous statements as to his
solvency.^"* It would appear, however, that the defendant is lim-
ited to showing what facts he actually knew at the time of com-
mencement of original proceeding. He cannot prove, bv way of
defense, and not in mitigation of damages, such knowledge as he
could in fact have obtained by the exercise of ordinary intelligence
and diligence.*'*
Merely honest belief on the part of the plaintiff as to the defend-
ant's guilt or wrong, while it may disprove express malice, is not
suflicient to constitute probable cause.'** Circumstances sufficient
to warrant a cautious man in the belief of another's guilt are not
enough to justify a prosecution, but the belief must also be that of
a reasonable and prudent man.^*^ The defendant is bound to make
inquiries which are reasonable under the circumstance& If he fails
to do so, he is charged with notice of the information such inquiries
would have produced. Failure to make inquiries may be equivalent
to want of probable cause.''* Statements of third persons that they
believe the plaintiff to be guilty of the crime charged will not jus-
277 Barber v. Scott (Iowa) 60 N. W. 497.
27S Connery v. Manning (Mass.) 39 N. E. 55a
27© Stewart v. Sonnebom, 98 U. S. 187. Compare with Smith v. Kin^r, 62
Conn. 515, 26 AtL 1059; Tabert v. Cooley, 46 Minn. 367, 49 N. W. 124; Boj<i
V. Mendenhall, 53 Minn. 274, 55 N. W. 45. But see Naclitman v. Hammer.
155 Pa. St 200, 26 AtL 311, where, in an action for malicious prosecution, evi-
dence of facts showing probable cause, which were not known by defendant
until three years after the prosecution, is inadmissible. Threefoot v. Nucliols,
68 Miss. 116, S South. 335.
280 Brown v. Hawks [1891] 2 Q. B. 718; Winnebiddie v. Porterfleld, 9 Pa.
St. 137; Garrett v. Manneihmer, 24 Mlun. 193. Et vide Ball v. Rawles, 93
Cal. 222, 28 Pac. 937.
281 McClafiTerty v. Philp, 151 Pa. St. 86, ^ Atl. 1042. Et vide McGuke v.
Goodwin, 31 III. App. 420; Johnson v. Miller, 69 Iowa, 562, 47 N. W. 903;
Reasonable or 'impartiar' man, Thompson v. Beacon VaL Rubber Co., 56
Conn. 493, 16 AU. 554.
282 Boyd V. Mendenhall, 53 Minn. 274, 55 N. W. 45. See note in 26 Am.
St. Rep. 147. Et vide Thompson v. Price, 100 Mich. 558, 59 N. W. 253;
Abrath v. North Eiistern Ry., 11 Q. B. Div. 440.
Ch. 9] MALICIOUS PROSECUTION. 621
tify,*** even though made upon affidavit.*** Nop are mere declara-
tions of third persons, not communicated, evidence of probable
cause.' ®^ Tliat the defendant knew of the plaintiffs good reputa-
tion when the prosecution was commenced may be proved to show
want of probable cause; '** and it would seem that generally the
plaintiffs bad character, but not particular instances of bad con-
duct, may be shown to meet the allegation of want of probable
cause.**^
Advice of Counad,
If a party lays all the facts of his case fairly before a person
learned in the law, and acts in good faith on the opinion given him,
he can show probable cause, and is not liable to an action for mali-
cious prosecution,*** He must, however, show that he received and
a«« Stratton v. Lockhart, 1 Ind. App. 380, 27 N. B. 715; NorreU v. Vogel,
39 Minn, 107, 38 N. W. 705. Compare English v. Major, 59 Hun, 317, 12 N.
Y. Sapp. 935.
284 Stocking V. Howard, 73 Mo. 25; Beat v. Hoeffner, 39 Mo. App. 682. Com-
pare Rives V. Wood (Ky.) 15 S. W. 131. But one has a right to rely upon
statements made by third persons as to recent possession of stolen goods by
plaintiff in malicious prosecution. Bemar y. Dunlap, 94 Pa. St 320. Et vide
McCarthy v. Deormit, 99 Pa. St 63; Fisher v. Forrester, 33 Pa. St. 501.
286 Compare Bacon v. Towne, 4 Cush. 217-241, with Mclntire v. Levering,
14S Mass. 546, 20 N. B. 191.
28« Scott V. Fletcher, 1 Overt (Tenn.) 488; Israel v. Broolcs. 23 IlL 575;
Miller v. Brown, 3 Mo. 127; Blizzard v. Hays, 46 Ind. 66; Mclntire v. Lever-
ing, 148 Mass. 540, 20 N. E. 191; Woolworth v. Mills, 61 Wis. 44, 20 N. W.
72a
a 87 And to mitigate damages: Bacon v. Towne, 4 Cush. 217-241; Pullen
v. Glidden, 68 Me. 559; Barron v. Mason, 31 Vt. 189; Rodriguez v. Tadmire,
2 Esp. 721; Gregory v. Thomas, 2 Bibb (Ky.) 286; Bostick v. Rutherford,
4 Hawks (N. C.) 83; Rosenkrans v. Barker, 115 111. 331, 3 N. E. 93.
288 Ravenga v. Mackintosh, 2 Bam. & C. 693; Le Clear v. Perkins (Mich.)
61 N. W. 357; Leahey v. March, 155 Pa. St 458, 26 Atl. 701; Walter v. Sam-
ple, 25 Pa. St 275; Coggswell v. Bohn, 43 Fed. 411; Weil v. Israel, 42 La.
Ann. 955, 8 South. 826; Norrell v. Vogel, 39 Minn. 107, 38 N. W. 705; John-
son V. Miller, 82 Iowa, 693, 47 N. W. 903, and 48 N. W. 1081; Palmer v. Bro-
der, 78 Wis. 483, 47 N. W. 744; Hewlett v. Cruchley, 5 Taunt. 277; Cuthbert
V. Galloway, 35 Fed. 466; Hall v. Suydan, 6 Barb. &4, 88; MoClafferty v.
Philp, 151 Pa. St 86, 24 Atl. 1012; Wilder v. Holden, 24 Pick. 8, 11; Stevens
V. Fassett 27 Me. 267, 283; Paddock v. Watts, 116 Ind. 146. 18 N. E. 518;
Turner v. Walker, 3 GIU & J. (Md.) 378; Rives v. Wood (Ky.) 15 S. W. 131;
622 MALICIOUS WRONGS. [Ch. 9
acted on legal adyice in good faith, and what facts he stated to his
counsel when he obtained the advice.^** He is not entitled to have
a verdict directed on the ground that he acted on the advice of coun-
sel, where his claim that a fair statement of the facts was laid be-
fore his attorney, and that he honestly followed advice honestly
asked, is disputed.'*® He must act in good faith. Mere disclosure,
without belief in guilt, is not sufficient.*"* It must be affirmatively
shown that the disclosure was full, fair, and in good faith; *•- and
where a material circumstance, known, or which should have been
known, by the defendant, was not included in the statemwit to the
counsel,**'* or where facts are exaggerated,'** probable cause is not
made out. The counsel must be learned in the law, in order to
lieaird v. Davis, 17 Ala. 27; CoUard v. Gay, 1 Tex, 4»4. Compare Sebas-
tian V. Cheney, 80 Tex. 407, 2.5 S. W. GOl; Folt;er v. Washburn. 137 Mass.
eO; Roy v. Goings, 112 111. 650; Forbes v. Hagman, 75 Va. 168; White v.
Carr, 71 Me. 555. And see authorities collected Barhight v. Tammany, 38
Am. St. Rep. 850 (Pa. Sup.) 28 Atl. 135. But advice of coimsel may not be
conclusive evidence of piobable cause. Gulf, C. & S. F. Ry. Co. v. James,
73 Tex. 12, 10 S. W. 744; Shannon v. Jones, 70 Tex. 141, 13 S. W. 477; Rives
V. WoocyiCy.) 15 S. \V. 131; Glasgow v. Owen, 09 Tex. 167, 0 S. W. 527; Fu-
gate V. Millar, 109 Mo. 281, 19 S. W. 71. Accordingly the rule is sometimes
more cautiously stated,— that the fact that defendant acted on advice of
counsel affords strong evidence tha^t the prosecution was entered into in good
faith, and without malice. Womack v. Fudicker (La,) 16 South. 045. Con-
sultation with attoi-ney no defense, if attorney gave no advice, but referred
plaintiff to United States officers. Holden v. Merritt (Iowa) 01 N. W. 390.
Gamier v. Bernard, 45 La. Ann. 1205, 14 South. 189; Beihofer v. Loeffert.
159 Fa. St. 305, 28 Atl. 217. Advice of counsel should be considered in deter-
mining not only the existence of probable cause, but also the absence of mal-
ice. Hurlbut V. Boaz, 4 Tex. Civ. App. 371, 23 S. W. 440.
280 Brooks V. Bradford. 4 Colo. App. 410, 30 Pac. 303; Mentel v. Hippely.
KG Pa. St. 558, 30 Atl. 1021; Jackson v. Bell (S. D.) 58 N. W. 071.
200 Connery v. Manning (Mass.) 39 N. E. 5r>8.
201 Vann v. McCreary, 77 Cal. 434, 19 Pac. 820; Johnson v. Miller, 82 Iowa.
093, 47 N. W. 903, and 48 N. W. 1081; Godfrey v. Soniat, 33 La. Ann. 915;
Glasscock v. Bridges, 15 La, Ann. 072.
202 Barhight v. Tammany, 158 Pa. St 545, 28 Atl. 135; Brooks v. Bradford,
4 Colo. App. 410, 30 Pac. 303; Crane v. Buchmann (Ohio O. PI.) 30 Wkly. Law
Bui. 120; Jackson v. Bell (S. D.) 58 N. W. 071.
203 Jessup V. Whitehead (Colo. App.) 29 Pac. 910; Webster v. Fowler, 89
Mich. 303, 50 N. W. 1074; Norrell v. Vogel, 39 Minn. 107, 38 N. W. 705.
20* Flora V. Russell (Ind. Sup.) 37 N. E. 593.
Ch. 9] MALICIOUS PROSECUTION. 623
make his advice a justification.*** It is not sulBcient if be be an
unprofessional person.*** It seems tbat counsel must also be un-
biased."^
Ckmcurrence of Malice and Want of Prohnhle Caxise.
In Farmer v. Sir Robert Darling,"* all the judges agreed "that
malice, either express or implied, and the want of probable cause,
must both concur." In Sutton v. Johnstone,'** — which case has
met with universal approbation,*** — ^however, it was said that the
essential ground of malicious prosecution is that the legal proceed-
ing "was carried on without probable cause. We said this is, em-
phatically, the essential ground, because every other allegation may
be implied from this; but this must be substantially and expressly
proved, and cannot be implied. From the want of probable cause,
29 s A police or trial justice is not such a person. Sutton v. McConnell. 46
Wis. 260, 50 N. W. 414; Brobst v. Kuflf, 100 Pa. St. 94; Finn v. Frink, 84 Me.
261, 24 Atl. 851; Lueck v. Helsler, 87 Wis. 644. 58 N. W. 1101; Mark v. Has-
tings, 101 Ala. 165, 13 South. 297; Ball v. Rawles, 93 Cal. 222, 28 Pae. 937.
Nor a United S.tateB inspector. Holden v. Merrltt (Iowa) 61 N. W. 390; Hahn
T. Schmidt, 64 Cal. 284, 30 Pac. 818. Et vide Govaski v. Downey, 100 Mich.
420, 59 N. W. 167. But see Holmes v. Horger, 96 Mich. 408, 56 N. W. 3.
Advice of district Judge is, however, evidence showing good faith. Such ad-
vice has been held admissible on question of probable cause, but is not full
jnstiftcatlon. Monaghan v. Cox, 155 Mass. 487, 30 N B. 467; Cooper v. Hart.
147 Pa. St. 504, 23 Atl. 833. Compare Stimer v. Bryant, 84 Mich. 466, 47 N.
W. 1099. County or district attorney is, however, competent legal counsel.
Perry v. Suller, 92 Mich. 72, 52 N. W. 801; Sebastian v. Cheney (Tex. Civ.
App.) 24 S. W. 970; Id., 86 Tex. 497, 25 S. W. 691; Moore v. Northern Pac.
Ry. Co., 37 Minn. 147, 33 N. W. 334, Assistant county attorney. Genevey v.
Edwards, 55 Minn. 88, 56 N. W. 578. So Is an attorney general. Gilbertson
V. Fuller, 40 Minn. 413. 42 N. W. 203. When plaintiflf disputes the truth of
matters testified by defendant being those he had stated to counsel, the ques-
tion of probable cause, so far as good faith in consultation of counsel is con-
temed, is for the jury. Lalor v. Byrne, 51 Mo. App. 578.
2»« Beal V. Robeson, 8 Ired. (N. C.) 276.
"T Smith V. King. 62 Conn. 515, 26 Atl. 1059.
a»« 4 Burrows, 1971-1974. Et vide Anonymous Case, 6 Mod. 73.
290 1 Term R. 493-510; 1 Brown, P. C. 76. Compare Jones v. Gwynn, 10
Mod. 214.
•00 Musgrove v. Newell, 1 Mees. & W. 582-587; WUlans v. Taylor, 6 Blug.
183-188; 2 Bam. & Adol. 845, 858, 859; MitcheU v. Jenkins, 5 Barn. & Adol.
688.
624 MALICIOUS WBOKGS. [Ch. 9
malke may be, and most commonly is, implied. The knowledge of
the defendant is also implied. From the most express malice the
want of probable cause cannot be implied."
Malice is, however, an essential element of malicious prosecution,
and must be alleged in the declaration or complainL'^^ The want
of probable cause, without malice, is not sufficienL'** The in-
ference of malice from want of probable cause is one of fact, to be
determined in view of all the circumstances,'®' and may be drawn
although there is no direct testimony as to prior trouble^ ill will,
or grudge.'®* The jury may, but are not bound to, infer malice
from want of probable cause.'®* Indeed, such inference of malice
from want of probable cause may be so removed by facts that there
is nothing for a jury to pass on.'®* Malice may, of course, be
proved by showing ill feeling on the defendant's part.'®^ On the
>oi Saxon y. Castle. 6 AdoL & EI. 652; Page v. Wiple, 3 East, 314; Van-
duzor v. Ijinderraan, 10 Johns. 106.
«02 Enierson v. Cochran, 111 Pa, St. 619, 4 AtL 498. Malice is a distinct
issue. Smith v. Maben, 42 Minn. 516. 44 N. W. 792. The offer to compro-
mise a civil suit i8, however, evidence of neither want of probable canse
nor malice. Id. Et vide Cooper v. Hart, 147 Pa. St 594, 23 AtL 833.
803 Fugate V. Millar, 109 Mo. 281, 19 S. W. 71.
304 Blunlc V. Atchison, T. & S. F. Ry. Co., 38 Fed. 311.
305 Jordan v. Alabama (1. S. R. Co.. 81 Ala, 220, S South. 191. Even where
the plaintiff was twice arrested on the same state of facts, and the case
was twice dismissed, it is for the jury to determine whether or not he acted
maliciously. Hinson v. Powell, 109 N. C. 534, 14 S. E. 301.
809 Thus, in an action against a railway company for malicious prosecu-
tion, it appeared that a series of robberies of defendant's freight cars had
been committed for over a year; that an Investigation was begun by the
police, and prosecuted by defendant ufcder their direction; that a person
was arrested, confessed he participated in the crime, and implicated plain-
tiff, an employ^ of defendant at place of robberies; that the arrest was not
made until after consultation with defendant's attorney and the district at-
torney; and that, after the hearing, plaintiff was discharged. It was held
that, although an arrest and discharge raised a presumption of want of prob-
able cause, from which the jury might have inferred malice, yet the other
facts clearly showed absence of malice, and a yerdict for the defendant
should have been dii-ected. Madison v. Pennsylvania R. Co.. 147 Pa. 509,
2:i Atl. 764. AccoMingly, all relevant circumstances should be proved and
<(msidered. Palmer v. Broder, 78 Wis. 483, 47 N. W. 744; Bigelow v. Sickles,
so Wis. 98, 40 N. W. 106.
307 Ante, p. 615, note 2.jI.
Ch. 9] MAUCIOUS PROSECUTlOxN. 625
other hand, no matter how much malice be shown, want of proba-
ble cause will not be inferred from it The law does not inquire
into private motive. If the defendants can show reasonable and
probable cause, thej make out a complete defense.'^® The plain-
tiff cannot recover if the defendant had reasonable and probable
cause, even though he acted with malice, and though the charge on
which the arrest was made was untrue.'**® He must both allege
and prove want of probable cause, or he cannot recover,'^® subject
to the consideration of the effect of acquittal, discharge, or dismis-
sal."^
•08 Sanders v. Palmer, 5 C. C. A, 77, 55 Fed. 217; Johnson v. State, 32 Tex.
Cr. R. 58, 22 S. W. 43. Compare Jordan v. Alabama G. S. R. Co., 81 Ala.
220, 8 South. 101. Et vide Brounsteln v. Wile (Sup.) 20 N. Y. Supp. 204;
Pugate V. Millar, 109 Mo. 281, 10 S. W. 71; Smith v. Hall, 37 lU. App. 28;
Mitchell V. Wall, 111 Mass. 492; Horn v. Sims, 92 Ga. 421, 17 S. E. 670. Com-
pare Jackson v. Linnington, 47 Kan. 396, 28 Pac. 173. No inference as to
motive can be drawn from the matter of termination of previous suit by the
court (Hinson v. PoweU, 109 N. C. 534, 14 S. E. 301; Swindell v. Houck, 2
Ind. App. 519, 28 N. E. 736), or by the party (Smith v. Burrus, 106 Mo. 94,
16 S. W. 881); nor, as a matter of law, from unworthy character of witness
<Jordan v. Alabama G. S. R. Co., 81 Ala. 220, 8 South. 191). Et vide Farrar
V. Bracketjt, 86 Ga. 463, 12 S. E. 686.
809 Kedman v. Stowers (Ky.) 12 S. W. 270. And see Lunsford v. Dietrich,
86 Ala. 260, 5 South. 461.
»io Hicks V. Faulkner, 8 Q. B. Div. 167; Vennum v. Huston, 38 Neb. 293,
56 N. W. 970. Sufficient allegation of want of probable cause: Jones v. Jen-
kins, 3 Wash. St 17, 27 Pac. 1022. Failure to aUege: Ely v. Davis, 111 N.
C. 24, 15 S. E. 878; Duncan v. Griswold, 92 Ky. 546, 18 S. W. 354. Burden
of proof is on plaintiflf. Le Clear v. Perkins (Mich.) 61 N. W. 357; Lucas
V. Hunt, 91 Ky. 279, 15 S. W. 781, overruling Brown v. Morris, 3 Bush (Ky.)
81; 1 Archb. N. P. 446; Mitchell v. Jenkins, 5 Bam. & Adol. 588; Whalley
V. Pepper, 7 Car. & P. 506; Walker v. Cruikshank, 2 Hill, 296. Even then it
has been held that a creditor cannot escape liability for wrongfully suing
out an attachment Yarborough v. Weaver, 6 Tex. Civ. App. 215, 25 S.
W. 468; Fry v. Estes. 52 Mo. App. 1. As to evidence admissible to prove
and rebut inference of want of probable cause, see Barber v. Scott (Iowa)
60 N. W. 497; Tykeson v. Bowman (Minn.) 61 N. W. 909. As to evidence not
admissible, see Grout v. Cottrell (Sup.) 22 N. Y. Supp. 336, reversed in 143
N. Y. 677, 38 N. E. 717.
sii Ante, p. 610. Where one accused of a crime Is discharged by the exam-
ining magistrate, and sues the prosecutor for malicious prosecution, the
burden of proving probable cause is on defendant Barhight v. Tammany,
158 Pa. St 545, 28 Atl. 136.
LAW OF TORTS — 40
62G MALICIOUS WRONGS. [Ch. i)
Province of Court and Jury.
The comment made by Mr. Pollock on the doctrine of probable
cause, as being neither a question of law nor of fact in false impris-
onment,**^ applies with equal propriety to the doctrine of probable
cause as involved in malicious prosecution.
In the earlier stages of the English law, there can be no doubt
that the question of reasonable cause was one of law, for the court
Mr. Stephen,** • after an exhaustive review of the English cases,
concludes that this "acknowledged rule has been gradually affected
by successive judicial decisions, until the practical burden of decid-
ing whether or not the plaintiff has shown a want of reasonable
cause has been, in effect, transferred to the jury." In England,
malice has always been recognized as properly for the jury.*** In
AmiTica, however, probable cause in malicious prosecution, was
(s'lrly recognized as a mixed question of law and fact.*** The
authorities are agreed, with essential unanimity, that what circum-
stances are sufficient to prove probable cause must be decided by
the court; that, where there is no conflict in the testimony as to
what these circumstances are, the court must pass upon the whole
case; but that, where the evidence is conflicting, it must be left to
the jury to apply to the facts, as found by them, the law as to what
constitutes reasonable and probable cause, as defined by the court
Malice is ordinarily exclusively for the jury; but if the court finds
the presence of probable cause, as a matter of law, there is noth-
ing for the jury to pass upon.^^*
»i2 Ante, p. 428, "False Imprisonment"; Pol. Torts, 192.
SIS The law relating to actions for malicious prosecution: Steph. Mai.
Pros. (London, 1888). Et vide review of recent English cases in 54 J. P.
145. The Canadian rule is that the existence of reasonable and probable
cause is a question for the court, though the Jury may be asked to find on
the facts from which such cause may be inferred. Archibald y. McLaren,
21 Can. Sup. Ct 588.
314 Mitchell v. Jenliins, 5 Bam. & Adol. 588.
815 Munns v. Dupont, 3 Wash. C. 0. 31-41, Fed. Cas. No. 9,926, 1 Am. I^ead.
Cas. 249.
sie Sanders v. Palmer, 5 0. 0. A. 77, 55 Fed. 217; Schattgen v. Holnback,
149 m. 646, 36 N. E. 969; Stewart v. Sonnebom, 98 U. S. 187; Knight v. In-
ternational & G. N. Ry. Co., 9 C. C. A. 376, 61 Fed. 87; Thompson v. Price
(Mich.) 59 N. W. 253; Jackson v. Bell (S. D.) 58 N. W. 671; Leahey r. March,
Ch. Uj MALICIOUS PR0SECUT10i«. 627
SAME^-DAMAGES.
201. Damages are the fciBt of an action for malicious pros-
ecution.
The necessity of alleging and proving damages as a part of the
ease has been recognizod, although damage is not usually included
in the enumeration of the essential elements of malicious prosecu-
tion. Malicious prosecution is a conspicuous illustration of a
class of malicious wrongs, of which the gist is damages, and tres-
pass and false imprisonment may be malicious, and therefore the
basis of the award of exemplary damages; but even in the ab-
sence of proof of malice or proof of damage, the sufferer ean re-
cover. In other words, they are based upon the absolute or simple
rights from the violation of which damage is presumed. In mali-
cious prosecution, however, there can be no recovery unless actual
damage, conforming to the standard of the law, is alleged and
proved; that is to say, the right violated is the right not to be
harmed.
In the leading case of Byne v. Moore,** • where, in an action for
maliciously indicting for an assault, the plaintiff gave no evidence
that the bill was returned **Not found," and was thereupon nonsuit-
ed, the court refused to set aside the nonsuit. The ground of deci-
155 Pa. St. 458. 26 Atl. 701; Robblns v. Robbins (Sup.) 15 N. Y. Supp. 215;
Moore v. Northern Pac. R. Co., 37 Minn. 147, 33 N. W. 334; Gilbeilson v.
T^Uer. 40 Minn. 413. 42 N. W. 203; Ball v. Rawles, 93 Cal. 222, 28 Pac. 937;
Mahaffey v. Byers, 151 Pa, St 92, 25 Atl. 93; Rankin v. Crane (Mich.) 61 N.
W. 1007; Lewton v. Hower (Fia.) 16 South. 616; Bish. Noncont. Law, § 240;
Anderson v. How, 116 N. Y. 336. 22 N. E. 695; Boyd v. Mendenhall. 53 Minn.
274, 55 N. W. 45. And see note, 26 Am. St. Rep. 141, 142, Cooley, Torts, 209,
for illustration of what is for court and what is for jury. Nigh v. Kelfer, 5
Ohio Cir. Ct. R. 1. In an action for malicious prosecution, it is error to Instruct
the jury that "if the facts are disputed. It is for you to determine whether or
not there. was probable cause!" Belhofer v. Loeffert, 157 Pa. St. 365, 28 Atl.
217. In an action for malicioua prosecution, submitting to the Jury the ques<
tion of probable cause is harmless error, so far as defendant is concerned,
where the undisputed facts show want of probable cause. Brooks v. Bradford
(Colo. App.) 36 Pac. 303.
818 5 Taunt. 187; Bigelow. Lead. Cas. 181,
628 UALUious WRONGS. [Ch. 9
Hion was that if the plaintiflf cannot prove injury sustained, either
to his person, by imprisonment, to his reputation, by the scandal,
or to Ills property, by the expense, he cannot maintain the action.'^'
The general principles of damages already considered apply.
The plaintiff is entitled to recover if he has established a cause of
action for nominal damages.'^^ He may recover compensatory
damages, reasonable hire withheld, loss of time of owner,*** for
injured credit, decrease of earnings, peace of mind, mental suffer-
ing, and all proximate consequences of the wrong."** Under gen-
eral damages he can recover for injury suffered since the suit
was commenced.*** Punitive damages may be allowed where ex-
press malice is shown.*** Excessive *** and remote **• damages
t\» Selw. N. P. 1026; 2 Greenl. Ev. I 449; 8avU v. Bobeits. 1 Salk. 13;
Jones T. Gw3'nn, 10 Mod. 214; Kramer ▼. Stock, 10 Watts (Pa.) 115; Godfrey
V. Soniat, 33 La. Ann. 916; Murphy v. Redler, IC La. Ann. 1. 2 Esp. N. P.
ti:A>, classifies the injury done by maliciously suing out a commission of
l)ankruptcy (Brown v. Chapman, 3 Burrows, 1418) as an injoiy in cases
where there is no tmst 1 Am. Lead. Gas. (5th Ed.) 258^ collecting cases.
*<• Farmer t. Oosby, 43 Minn. 459, 45 N. W. 806. Et Tide Tripp T. Tbomai,
3 Bam. & C. 427. As to when he is entitled to only nominal damages. Tide
Schwartz t. Davis (Iowa) 57 N. W. 849; Girard t. Moore (Tex. dv. App.) 21
S. W. 652.
3 31 Jones T. Lamon, 92 Ga. 529, 18 S. R 423. As to diflTerence in Talue of
property before and after property has been garnished. Tide Girard t. Moore,
86 Tex. 675. 26 8. W. 945.
52* Jones T. Jenidns, 3 Wash. St. 17. 27 Pac. 1022; Wheeler t. Hanson, 161
Mass. 370, 37 N. E. 382; Bull. N. P. 13, 14; Oosson t. Staples, 42 Vt 200;
Gould T. Barratt, 2 Moody & R. 171; Whipple t. Fuller, 11 Gonn. 581. Com-
pare Sandback t. Thomas, 1 Starkle, 306, with Sinclair t. Eldred, 4 Taunt.
7. Vide comment in Webber t. Nich(^ls, 1 Russ. & M. 417, 4 Binir. 416;
Tompson t. Musscy, 3 Gr(>enL (Me.) 305; Lawrence t. Hagerman, 56 HL 68.
S23 Schmidt T. Hughes, 33 111. App. a**: Whwler t. Hanson, 161 MassL 370,
<24 Cooper T. Utterbach, 37 Md. 2S2. In such cases plaintiff may show the
financial condition of defendant Winemiller t. Thrash, 125 Ind. 353, 25 N. B.
350. A verdict for $12,500 pnnltiTe damages has been sustained. Russell T.
Bradley, 50 Fed. 515. But see Adams v. Gillam, 53 Kan. 131, 36 Pac. 51.
32 5 Two thousand five hundred dollars for compelling a yoimg woman to
disrobe, and allow officers to run their fingers through her hair in search of
««• Tynberg t. Cohen (Tex. Civ. App.) 24 S, W. 314.
Ch. 9] MALICIOUS PB08ECUTI0N. 629
are governed by ordinary rules. Special damages, as costs and fees
expended by the plaintiff in original proceeding, should be special-
ly alleged and proved."*^ The plaintiff may recover, as special dam-
ages, the profit he was prevented from making, for example, by the
attachment of his goods,'*' or from boarders who left on ascertain-
ing that their landlady was about to be ousted."*
diamonds, is not excessive. Doane v. Anderson (Sup.) 15 N. Y. Supp. 459.
Eight thousand doUars actual damaf^es sustained: Gulf, C. & S. F. Ry. Co.
V. James, 73 Tex. 12. 10 S. W. 744; Ball v. Hoirlgan (Sup.) 10 N. Y. Supp.
913; EvansvlUe & T. H. R. Co. v. Talbot, 131 Ind. 221, 29 N. E. 1134. As to
evidence In malicious prosecution, see Lock wood v. Beard, 4 Ind. App. 5()5,
30 N. E. 15; Bruce v. Tyler. 127 Ind. 4(58, 20 N. E. 1081; Re3'nolds v. Hay-
wood (Sup.) 28 N. Y. Supp. 467. For an insulticient complaint, compare Hy-
field V. Bass Furnace Co., 8!) Ga. 827, 15 S. E. 752, with Obernatte v. Johnson,
36 Neb. 772. 55 N. W. 220. Kt vide Denuehey v. Wootlsum, 100 Mass. 105;
Tisdale v. Kingman, 34 S. C. 320. For a sufficient complaint, see I^auzon v.
Charroux (R. L) 28 AtL 975; Cottrell v. Cottrell, 126 Ind. 181, 25 N. V^- O^*
SwindeU v. Houck, 2 Ind. App. 519, 28 N. E. 736. Defense of advise of attor-
ney Is not new matter demanding a reply. OJ&on v. Tvete, 46 Minn. 225, 48
N. W. 914.
«27 And expense for procuring sureties on bail bond, Wlieeler v. Hanson,
161 Mass. 370, 37 N. E. 3S2. And such special damages as rent of mill of
which plaintiff lost possession through defendant's action of trover, FaiTar
V. Brackett, 86 Ga. 463, 12 S. E. 686. Recovery of damages suffered from
taking and detention of goods in replevin will not prevent plaintiff, who was
defendant in replevin suit, from recovery in malicious prosecution. McPher-
son V. Runyon, 41 Minn. 524, 43 N. W. 302. The condition of plaintiff's family
cannot be shown for the purpose of affecting general damages. Relsan v.
Mott, 42 Minn. 40, 43 N. W. 691. But see Peck v. Small, 35 Minn. 4(55, 20
N. W. 69. But deprivation of society of wife is competent Ki Hebrew v.
Carlisle, 97 Ala. 535, 12 South. 167; Strang v. Whitc^head, 12 Wend. 64;
Mitchell V. Da vies, 51 Minn. 168, 53 N. W. 363; Dorncll v. Jones. 15 Ala. 400;
Stanfleld v. Phillips, 78 Pa. St. 73; Miles v. Weston, GO 111. 361; Home v. Sul-
livan. 83 111. 30; Thompson v. LunUey, 7 Daly (N. Y.) 74; Zeigler v. Powell,
54 Ind. 173.
»2» State V. Andrews, 39 W. Va. :{5, 19 S. E. 385; Bradley v. Borin, 53 Kan.
628, 36 Pac. 977. But cf. Zinn v. Rice (Mass.) 3^ N. E. 747.
9io Slater v. Klmbo, 91 Ga. 217, IS S. E. 296.
630 MALICIOUS WRONGS. [Cll. 9
SAME--DI8TINCTION FBOM FALSE IMPRISONMENT.
202. Malicious prosecatton and fiEdse iznprisonnient are
two different causes of action, composed of differ-
ent elements. They are not incompatible, how-
ever, but may arise out of the same state of fieu^ts,-
and be the basis of the same action.
False imprisonment is a radically diffei-ent wrong from malicious
pi-osecution.*'" Recovery of damages in an action for false impris-
onment is no bar to an action for malicious prosecution.**^ False
imprisonment is a direct injury to the freedom of the person, and,
at common law, was an action of trespass. Malicious prosecution
may be entirely independent of personal interference, and always
gives rise to an action on the case."* The very statement of the
facts in the ease of false imprisonment shows the acts involved to be
illegal.*** The ground of malicious prosecution is the procuring to be
done what upon its face is, or may be, a legal act, from malicious
motives, and without probable cause.*** That there should have
been an original legal proceeding of some kind, and that the plain-
tiff should have succeeded in it, is an essential element peculiar to
malicious prosecution.*** The coincidence of malice and want of prob-
able cause is also peculiar to malicious prosecution. Malice is never
330 Brown v. Chadsey, 39 Barb. 253.
SSI Guest V. Warren, 23 Law J. Exch. 121; ante, p. 323, note 116. "Judgment
as a Bar."
•ssAnte, p. 604, ''Trespass under Malicious Prosecution"; Brown y. cauid-
scy, 39 Barb. 253.
3S8 Imprisonment caused by a malicions prosecution is not false unless
without legal process or extrajudicial. Nebenzahl v. Townsend, 61 How. Prac.
ar»«; Murphy v. Martin, 58 Wis. 276, 16 N. W. 608; CJolter v. Lower, 35 Ind.
2S*>: 7 Am. & Eng. Enc. Law, GG8, 664, and cases cited; Turpin v. Remy, 3
Bhickf. 210; Mitchell v. State, 12 Ark. 50, and cases cited; 1 Chit. PL $ 133.
3»« Johnstone v. Sutton, 1-Term. K. 010; Nebenzahl v. Townsend, 61 How.
Prac. 356. Where an arrest is made for the purpose of enforcing the pay-
ment of a debt, malicious prosecution, and not false imprisonment, is the
proper remedy. Mullen v. Brown, 138 Mass. 114; Herzog v. Graham, 9 Lea
(Tenn.) 152; Woodward v. Washburn, 3 Denio, 369.
«8B Everett v. Henderson, 146 Mass. 89, 14 N. B. 932.
Ch. 9J MALICIOUS PROSECUTION. 631
properly an essential element of false imprisonment; "* and proba-
ble cause, only when there has been an arrest without warrant, and
then as matter of the defendant's, and not of the plaintifTs, case.
Accordingly, advice of an attorney is no defense to false imprison-
ment; warrant of arrest, in perfect form, is not to malicious prose-
cution.
On the other hand there is no incompatibility between the two
causes of action.'*^ The same state of facts may constitute both
false imprisonment and malicious prosecution, as where, on an affi-
davit falsely charging perjury, the arrest and incarceration in jail
of the accused is a malicious prosecution. If the affidavit is made
without probable cause, his incarceration thereunder in jail is false
imprisonment.*** The two causes of action arising out of the same
state of facts may be united in the same pleading, and the plaintiff
may recover under either.*** And it has been held that a complaint
for either cause of action may be converted into the other by amend-
ment.'** Under a declaration for the one cause of action, however,
no recovery can be had for the other.*** In Johnson v. Girdwood,***
Judge Pryor said: *1f the plaintiff's characterization of his action
as for false arrest and imprisonment be correct, the complaint can-
not stand a moment. • ♦ ♦ Under our system of procedure, a
plaintiff's right of recovery depends, not upon the name he gives his
action, or the classification to which he subjects it, but upon wheth-
sae Carey v. Sheets, 60 Ind. 17; CoUer v. Lower, 35 Ind. 285; ante, p. 430;
.Johnson v. Bouton, 35 Neb. 808, 53 N. W. 095; Hobbs v. Ray (R. I.) 25 Atl.
694; Comer v. Knowles, 17 Kan. 430.
8^7 14 Am. & En^. Enc. Law. 17, note 1, citing cases.
S88 Weil V. Israel, 42 La. Ann. 955, 8 South. 826. Compare with Sloan v.
Schomaker, 136 Pa. St. 382, 20 Atl. 525; Lueck v. Heisler, 87 Wis. (U4. 58
N. W. 1101.
»so Bradner v. Faulkner, 93 N. Y. 515; Marks v. Townsend, 97 N. Y. 590;
Anderson v. How, 116 N. Y. 336, 22 N. E. 695; Barr v. Shaw, 10 Hun, 580;
King V. Ward, 77 111. 603. The plaintiff has, however, been required to elect
between them. Nebenzahl v. Townsend, 01 How. Prac. 35.'^.
840 Spice V. Steinruck, 14 Ohio, 213; Painter v. Ives, 4 Neb. 122; Truesdell
V. Combs, 33 Ohio St. 180; Steel v. Williams, 18 Ind. 161,
341 Hobbs V. Ray (R. I.) 25 Atl. 694; Herzog v. Graham, 9 Lea (Tenn.) 152;
Bro^n V. Chadsey, 39 Barb. 253; King v. Johnston, 81 Wis. 578, 51 N. W.
1011. Compare Bauer v. Clay, 8 Kan. 580; Wagstaff v. Schippel, 27 Kan. 450.
84 2 28 N. Y. Supp. 151, 152.
632 MALICIOUS WB0K68. [Ch. 9
er, on the facts exhibited, he is entitled to any legal redress. With
ns, all suits are special actions on the case, and if the facts show a
right to relief the plaintiff will not be tamed out of court because of
a technical error in scientific nomenclature."
MALICIOUS ABUSE OF PROCESS.
203. An action for damages^ lies for the malidoiis abuse
of lawful process, civil or criminal, even if such,
process has been issued for a just cause, and is
valid in form, and the proceeding thereon -was jus-
tified and proper in its inception, but injury arises
in consequence of abuse in subsequent proceedings.
The leading case on this subject is Grainger v. Hill,'** where the
defendant was held liable, not for putting process of arrest in force,
but for abusing it for an object not within its scope. The officer
arrested the owner of a vessel on civil process, and used such pro-
cess to compel the defendant to give up his ship's register.**' Dam-
ages were recovered, not for maliciously putting the process in
force, but for maliciously abusing it; leading the person arrested to
do some collateral thing, which he could not lawfully be compelled
CO do.'** A common form of abuse of process is excessive attach-
««s As to mandamus to prevent successful use of information obtained by
abuse of process, see ante, p. 351, ••Remedies." See, also, Rosenthal v. Cir-
cuit JudRo, U8 Mich. 208, 57 N. TV. 112.
8**4 Bing. N. C. 212; Twilley v. Perkins, 77 Md. 252, 26 Atl. 28a Further,
as to abuse of criminal process: Page v. Cushing, 38 Me. 523: Jenlngs v.
Florence, 2 C. B. (N. S.) 467; Smith v. Weeks, 60 Wis. 94. IS N. W. 778;
Baldwin v. Weed, 17 Wend. 224; Carleton v. Taylor, 50 Vt 220; May« v.
Walter, 04 Pa. 8t. 283. As to abuse of capias to collect fees: Small v. Ban-
field (N. H.) 20 AU. 284.
s«ft Bamett v. Reed. 51 Pa. St. 190. Excessive attachment: Moody ▼.
Deutsch, 85 Mo. 237; Savage v. Brewer, 16 Pick. (Mass.) 453. So, an officer
may become a trespasser ab initio by staying too long in a store where he
has attached goods. Rowley v. Rice, 11 Mete (Mass.) 337; Williams v. Pow-
ell, 101 Mass. 467; Davis v. Stone, 120 Mass. 228. Et vide Cutter v. Howe,
122 Mass. 541; Malcom v. Spoor, 12 Mete. (Mass.) 279; Esty v. WUnvit, 15
Gray (Mass.) 1C8.
t4o Page V. Cushlug, 38 Me. 523; Jobiisou v. Reed, 13G Mass. 421; HoHey
Ch. 9] MALICIOUS ABUSE OF PROCESS. 6o3
inent.'*^ ''Bat the mere giving of notice by a third person to a debt-
or not to pay the creditor the amount due him under a contract is
neither the use nor abuse of legal process; and no action can be
maintained by the creditor against the person giving the notice, for
the delay in the payment, and the expense of the lawsuit which he
was compelled to bring against the debtor, in consequence of such
notice, though it may have been given maliciously and vexatious-
ly/'"*
The authorities are not agreed as to what constitutes the essen-
tial elements of this action. Seizure of property is not an essential
of the action.'^* Such a definition would fail to distinguish be-
tween malicious abuse of process and malicious prosecution, and
seems to depend on the distinction that the action is case, and not
trespass.**® Another view, and perhaps one more in harmony with
the modem spirit of the law of torts, is to distinguish malicioufci
T. Mix, 3 Wend. 350. Abuse of process is its perversion. Sharswood, 0. J.,
in Maytf y. Walter, &1 Pa. St. 283. One who, after placing a valid writ of
restitution in the hands of an officer, voluntarily assists in removing the
property, is liable for such Injury to the property as amounts to an abuse
of process. Murray v. Mace (Neb.) 59 N. W. 387. So, a sheriff who, under
a writ, exposes to inclement weather the daughter and household goods of
an unsuccessful defendant in a suit to try title to land, to gratify malice of
a successful plaintiff, is liable, and the plaintiff also, if he ratify or authorize
such conduct Casey v. Hanrick, 69 Tex. 405, 6 S. W. 405; Rogers v.
Brewster, 5 Johns. 125.
3*T zinn V. Rice, 37 N. B. 747. And, further, as to wrongful attachment, see
Woessner v. WeUs (Tex. Civ. App.) 28 S. W. 247; Imperial RoUer Milling Co.
V. First Nat. Bank of Cleburne (Tex. Civ. App.) 27 S. W. 49; Strauss v. Dun-
don, Id. 503.
«4« Norcross v. Otis, 152 Ta. St. 481, 25 Atl. 575; Potts v. Imlay, 4 N. J.
Law, 377.
849 Therefore, a mere notice by a stranger to a debtor not to pay a creditor^
in consequence of which the creditor Is compelled to sue to recover his inouoy,
is not sufficient to support an action for damages. In such a case, the only
loss is the delay in payment, which is compensated by Interest Norcross v.
Otis, 152 Pa. St. 481, 25 Atl. 575. However, though claimant was not de-
prived of the goods levied on, nor hindered in selling them in the regular
course of business, he is entitled to damages for any injury to his credit.
Birch V. Conrow, 161 Pa. St. 118, 28 Ati. 1009.
3&0 Where the act is an immediate wrong against all forms of law, trespass
is th« remedy. Where the process is legal, but used in an oppressive man-
634 MALICIOUS WRONGS. [Ch- 9
abuse of process from malicious prosecution in at least two respects:
First, in that want of probable cause is not an essential element,"*
and, second, that it is not essential that the original proceeding
shall have terminated.' '^ It differs from false imprisonment in
that, inter alia, a warrant valid on its face is no defense, and it is
entirely inconsistent with extrajudicial proceedings,'" The process
abused, moreover, may be either civil or criminal.'** It has, how-
ever, been held that an action for false imprisonment may lie for
misuse or abuse of legal process after it has issued.' ••
MALICIOUS INTEBFEBENCE WITH CONTBACT.
204. Actions to recover damages for malicious interfer-
ence with contract have been generally recognized
in England, and sometimes in America. Four
things are necessary to sustedn the action:
(a) A contract.
(b) Knowledge of the contract on the part of defendant.
(c) Malice on the part of defendant.
(d) Damage suffered by plaintiff.
ner, the remedy is case. Kennedy y. Bamett, 64 Pa. St 141, commenting on
Sommer v. Wilt, 4 Serg. & R. (Pa.) 19; Bamett v. Reed, 51 Pa. St. 190; Kra-
mer V. Lett, 50 Pa. St 495,
361 Hazard v. Harding, G3 How. Prac. 326. Compare Juchter y. Boehm, 07
Ga. r)34; Crusselle v. Pugh, 71 Ga. 744.
»0 2 Beblnger y. Sweet, 1 Abb. N. C. 2G3; Driggs v. Burton, 44 Vt 124; Mayer
V. Walter, 64 Pa. St. 283; Zlnn v. Rice, 154 Mass. 1, 27 N. E. 772; Antcliff v.
June, 81 ISIich. 477, 45 N. W. 1019; Eraeiy v. Glnnan, 24 III. App. 65; 2 Greenl.
Ev. § 452.
868 King y. Johnston, 81 Wis. 578, 51 N. W. 1011. But see Holley v. Mix.
3 Wend. 350; Wood y. Grayes, 144 Mass. 365, 11 N. E. 507; State y. Jungling.
UG Mo. 1G2, 22 S. W. 088.
8 64 Thus, it may lie for a wrongful leyy: Birch y. CJonrow, 161 Pa. St 118,
28 Atl. 1009; Farmer y. Crosby, 43 Minn. 459, 45 N. W. 866; Sommer y. Wilt,
4 Serg. & R. 19; Churchill y. Slggers, 3 EL & Bl. 929. For excessiye attach-
ment: Savage y. Brewer, 16 Pick. 453; Moody y. Deutsch, 85 Mo. 237. Etyide
Holllngsworth y. Atkins, 46 I-ia. Ann. 515, 15 South. 77; State y. Andrews, 39
W. Va. 35, 19 S. E. 385; B. C. Evans Co. v. Reeves, 6 Tex. Civ. App. 254, 26 S.
W. 219.
3 66 Wood y. Graves, 144 Mass. 305; Crowell y. Gleason, 10 Me. 325; Fran-
<^h. 9] MALICIOUS INTERFERENCE WITH CONTRACT. 635
In England.
In the celebrated case, Lumley v. Gye,**' the plaintiff, the manager
of a theater, had contracted with an opera singer to perform for
him exclusively daring the term of her engagement. The defend-
ant, knowing this, and maliciously intending to injure the plaintiff
as a manager, while the agreement was in force, and before the ex-
piration of the term, enticed and procured the singer to wrongfully
refuse to execute the contract. The majority of the court regarded
the case as in strict analogy to the ordinary case of master and
servant, as one of pure tort, and as resting on natural principles of
tort, in that whoever maliciously procures the violation of another's
right, whether involving a contract or not, ought to be made to ^in-
demnify. Coleridge, J., dissenting, however, urged that actions un-
der the statute of laborers were confined to menial servants, that
only the parties to the contract should be allowed to recover under
it, and that the damages claimed in this case were objectionable as
remote. The rule established in this case has been subsequently
followed in England.***^ Jt is not material whether the contract
maliciously interfered with is between a master and servant or not.
If the interference is used for the purpose of injuring the plaintiff,
or of benefiting the defendant at the expense of the plaintiff, the
conduct is malicious."*'
In America,
In Walker v. Cronin,"** the English rule was followed. "Every
one," it was said, '^as the right to enjoy the fruits and advantages
Cisco v. state, 24 N. J. Law, 30; Sleight v. Leaven wwth, 5 Duer, 122; Lange v.
Benedict, 73 N. Y. 12.
3B« 2 El. & Bl. 216; Green v. Button, 2 Cromp., M. & R. 707; Cattie v. Stock-
ton Waterworks Co., L. R. 10 Q. B. 453; 1 Intercollegiate Law J. 102; article
by William L. Hodge, 28 Am. Law Rev. 47, 80; article by A. L. Tidd, 40
Cent. Law J. 86.
8B7 Bowen v. HaU, 6 Q. B. Dlv. 335; 20 Am. Law Rev. 578; Templeton v.
HuBsell, 1 Q. B. Div. 715. And see note 356; Com. Dig. "Action on Case,"
A; Cattle v. Stockton Water Works Co., L. R. 10 Q. B. 453, 458; Ames, Cas.
Torts, 612, note 2; Add. Torts, 37.
858 Tfemperton v. Russell [1893] 4 Reports, 376.
«»» 107 Mass. 555, approved In Thomas v. Cincinnati, N. O. & T. P. Ry. Co.,
62 Fed. 816. And see Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307. .
636 MALICIOUS WRONGS. [Ch. 9
of his own enterprise, industry, skill, and credit He has no ri^t
to be protected against competition; but he has a right to be free
from malicious and wanton interference, disturbance, and annoy-
ance. If the disturbance or loss comes as a result of competition,
or the exercise of like rights by others, it is damnum absque injuria;
• * * but if it comes merely from wanton or malicious acts of
others, without the justification of competition, or the service of any
interest or lawful purpose, it stands on a different footing," and the
wrongdoer is liable. Lumley y. Gye has been followed in a number
of other cases,'*® and by the supreme court of the United States in
Angle V. Chicago, St. P., M. & O. Ry. C5o.'" On the other hand, the
numerical weight of authority would seem to be against recognition
of such a moral wrong as the basis of a judicial action.'*' Thus, in
a case similar to Lumley y. Gye, the defendant induced Mary An-
derson to break her contract with her manager, the plaintiff, l^e
court held that the action could not be maintained, because it was
not the policy of the law to restrict competition, whether concern-
ing property or personal services; that the only occasion for more
stringent regulation of the latter is in purely domestic relations;
and that ordinarily the employer should look only to the person em-
plo3'ed, when there was a breach of the contract, just as the seller
must look to the buyer, and the creditor to the debtor, in default
of payment.'*'
««o Jones V. Stanly, 76 N. C. 355; Blxby v. Dunlap, 56 N. H. 456; Jones v.
Blocker, 43 Ga. 331; Salter v. Howard, 43 Ga. 601; Benton v. Pratt, 2 Wend.
3Sr>; Rice v. Manley, 6G N. Y. 82; Dickson v. Dickson, 33 La. Ann. 1261; Upton
V. Vail, 6 Johns. 181; Barr v. Essex Trades Council (N. J. Ch.; Deo. 24, ISW)
30 Atl. 881. reviewing cases; Lally v. CantweU, 30 Mo. App. 524.
861 14 S. Ct. 240; 7 Harv. Law Rev. 428 (Jan. 13, 1894). It was said in
Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57: "An action cannot in general
be maintained for inducing a third person to break his contract with plaintiff;
for (me party to the contract may have his remedy by suing on it,"— approving
Cooley, Torts, 497.
302 Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57; Boyson v. Thorn, 98 CaL
578, 33 Pac. 492. MaUcioos interference with contract, 32 Cent Law J. 273
And see 2 Harv. Law Rev. 19. And see dissenting opinion, Haskina v. Royster.
70 N. C. 601.
a«3 Bourller v. Macauley, 91 Ky. 135, 15 S. W. 60.
Ch. 9] CONSPIRACY. 637
CONSFIBACY.
206. A conspiracy is an agreement or engagement of per-
sons to co-operate in accomplishing some unlawful
purpose, or some purpose which may not be un-
lawful, by unlawful means.^ The conspirators
are liable for conduct pursuant to such agreement
to inflict injury. The injury done, and not the con-
spiracy, is the gist of the action.
206. The charge of conspiracy may be of use —
(a) To create a liability in cases of tort actionable only
when committed by two or more;
(b) To enable the defendant to apply principles of liabil-
ity of Joint tort feasors to conspirators;
(c) To enlarge the scope of evidence admissible;
(d) To aggravate damages; and
(e) To entitle to an injunction.
**Ck)n8piracy'' naturally refers to some agreement for joint action.
At common law, it was the name of a writ. That writ did not take
its appellation from the wrong it was designed to remedy. On the
contrary, the wrong to which it issued was malicious prosecution;
but it issued only when persons, by agreement, united in, concerted
malicious prosecution.^®** The practice is supposed to have its
origin in the phraseology of 21 Edw. L'®* Because of confusion as
to this old writ, and of civil with criminal conspiracy, there is much
uncertainty in the meaning given to, and the use made of, the term.
Indeed, the term is now commonly applied to unlawful combina-
tions of workmen to raise their wages, or otherwise improve their
condition.^"^
««* State T. Maybeny, 48^ Me. 2ia
s«BBlgieIow, Lead. Cas. 214.
soe Bigelow, J., in Parker y. Huntington, 2 Gray (Mass.) 124. And see Van
Syekel, J., in Van Horn v. Van Horn (N. J. Err. & App.) 28 Atl. 669.
8tT Toml. Law Diet. tit. "Conspiracy. " And see post, p. 04i.
638 MALICIOUS WRONGS. [Ch. 9
Injury the Gid of the Action.
A civil conspiracj is an unlawful combination or agreement be-
tween two or moi*e persons to do an act unlawful in itself, or a lawful
act bj unlawful means.'** But, as has been show^n, mere agreement
to do wrong is not actionable. There must be some overt act conse-
quent upon such agreement, to give the plaintiff a standing in a court
of law, although it may be otherwise in equity. The liability is dam-
ages for doing, not for conspiring.'*" The charge of conspiracy
does not change the nature of the act. The true test of liability,
in cases of conspiracy, is whether or not there is conduct in pur-
suance of a conspiracy, and injury — not merely damage — resulting
from such conduct. The general nature of the wrong is the ma-
licious interference with certain general rights recognized and pro-
tected by the law.*^® There may be an agency, and also a cen-
ses King ▼. Jones, 4 Barn. & AdoL 345; O'ConneU v. Reg., 11 Clark & P.
115; Breitenberger v. Schmidt, 38 111. App. 168; Reg. v. Pamell, 14 Cox, Or.
Cas. 50S; Angle v. Chicago, St P., M. & O. R. Co., 151 IT. S. 1. 14 Sup. Ct.
240. The de^nition of a conspiracy given In the text Is the current and con-
yen tional one. It has been observed with much force, however, that **what
a conspiracy is no one knows. Its definition is always question begging, and
the only intelligible meaning of it seems to be that there is an indefinite class
of offenses which become conspiracies because several combine in the execu-
tion, and so render opposition by an individual more difficult" 8 Harv. Law
Rev. 228; Mr. Justice Harlan, in Arthur v. Oakes, 63 Fed. 310. And see Lord
Esher, in Temperton v. Russell [1803] 1 Q. B. 715.
369 Boston V. Simmons, 150 Mass. 461, 23 N. E. 210; Sweeny v. Torrence, 11
Pa. Co. Ct. R. 407.
370 Hutchlns V. Hutchins, 7 Hill (N. Y.) lOi; Bigelow, Lead. Cas. 207. Et
ride Place v. Minster, 65 N. Y. 89; Burd. Lead. Cas. 259; Robertson v. Parks,
76 Md. 118, 24 Atl. 411; Austin v. Barrows, 41 Conn. 287; Verplanck v. Van
Buren, 76 N. Y. 247; Findlay v. McAllister, 113 U. S. 104, 5 Sup. Ct 401;
Parker v. Huntington, 2 Gray (Mass.) 124; Payne v. Western Ry. Co., 13 Lea
(Tenn.) 507; Kimball v. Harman, 34 Md. 407; AUen v. Fenton, 24 How. 407;
Bush V. Spragiue, 51 Mich. 41, 16 N. W. 222; Caring v. Eraser, 76 Me. 37;
Herron v. Hughes, 25 Cal. 556; Cook v. Churchman, 104 Ind. 141-149, 3 N.
E. 759; WUdee v. McKee, 111 Pa. St 335, 2 AtL 108; Engstrom v. Sherburne,
137 Mass. 153; Savile v. Roberts, 1 Ld. Raym. 374; Cotterell v. Jones. 11
C. B. 713; Castrique v. Behrens, 30 Law J. Q. B. 163; Walsham v. Stainton,
33 Law J. Eq. 68; Skinner v. Gunton, 1 W. Saimd. 229; Turner v. Turaer,
Gow, 20. A complaint charging defendant with a conspiracy to slander plain-
Ch. 9] CONSPIRACY. 639
spiracy to defraud, between the same persons, and relating to the
same transaction.'^*
Use oj Charge of Conspiraq/.
It is often loosely said that the allegation of conspiracy in an
action on tort is immaterial and surplusage, and that the fact of
conspiracy became actionable only when the act would be a ground
of suit if done by a single person.*^* This is far from being liter-
ally true. While in an action against two or more persons, in the
nature of a conspiracy, if the tort be actionable whether committed
by one or more, recovery may be had against but one, but, if the
tort be actionable onlv when committed under an unlawful con-
spiracy of two or more, recovery may not be had unless the un-
lawful conspiracy be established. Thus, judgment confessed by a
father in favor of a son cannot be held fraudulent, as to creditors
of the father, without collusion and combination between the two
to hinder, delay, and defraud such creditors.^^' The charge of
conspiracy is further of use as enabling the plaintiff to recover
against all conspirators as joint tort feasors, or, if he fail to prove
a concerted design, he may still recover damages against such as
are shown to be guilty of the tort without such an agreement.^^*
Mere silent approval of an unlawful act does not, however, render
tiif, but failing to sufficiently plead slander as against either, Is demurrable.
Severinghaus v. Beckman, 9 Ind. App. 388, 36 N. E. 930.
«7i Wolfe v. Pugh, 101 Ind. 293.
3T2 Boston y. Simmons, 150 Mass. 461, 23 N. E. 210; Kimball v. Harman, 34
Md. 407; Cooley, Torts, 125.
37 3 Collins V. Cronin, 117 Pa. St 35, 11 Atl. 869; Laverty v. Vanarsdale,
65 Pa. St. 507; Uundell v. Kalbfus, 125 Pa. St. 123, 17 Atl. 238; Id., 134 Pa. St.
102, 10 Atl. 492; Burton v. Pulton, 49 Pa. St 151; Newall v. Jenkins, 20 Pa.
St 159; Wellington v. Small, 3 Gush. (Mass.) 145; Leavitt v. Gushee, 5 Gal.
152; Johnson v. Davis, 7 Tex. 173; Gregory v. Duke of Brunswick, 6 Man. &
G. 205.
374 Van Horn v. Van Horn, supra; Skinner v. Gunton, 1 Saund. 228 et seq.;
Parker v. Huntington, 2 Gray (Mass.) 124; Boston v. Simmons, 150 Mass.
461, 23 N. E. 210; Eason v. Westbrook, 2 Murph. (N. G.) 329; Laverty v.
Vanarsdale, 65 Pa. St 507-509; Garing v. Fraser, 76 Me. 37-41; Breedlove v.
Bundy. 96 Ind. 319; Buffalo Lubricating Oil Co. v. Standard Oil Co., 42 Hun,
153; Brinkley v. Piatt, 40 Md. 529; Kelt v. Wyman, 67 Hun, 337, 22 N. Y.
Supp. 1331; Grifflng v. Differ, 66 Hun, 633, 21 N. Y. Supp. 407.
640 MALICIOUS WRONGS. [Ch. 9
one liable as a conspirator; ^'' nor does presence as a spectator; •'•
nor membership in an association to prosecute, unless the member
sought to be charged intentionally aided in the prosecution.*^*
But actual participation need not be proved.'^* While conspiracy
thus may increase the person's liability for a given wrong, it may
also serve to aggravate the wrong done, and thus tend to increase
the measure of the recovery.*^*
The charge of conspiracy correspondingly increases the range of
evidence admissible against the defendants. Thus, when a prima
facie case is established, showing the existence of an actionable
conspiracy, declarations, acts, or omissions of any of the conspira-
tors touching the original or concerted plan (but not before or aft-
erwards), and with reference to the common object, are evidence
against each and every one of them. This is true, although such
declarations, acts, or omissions be not made or performed in the
presence of more than one of such conspirators.**^
The charge of conspiracy may be further of use as entitling its
object to an injunction even before there has been any overt act
under the unlawful agreement The issuance of the injunction
will be governed by the common equitable principles. A com-
bination to boycott a newspaper may be enjoined.' •*
»T6 Brannock v. Bouldin, 4 Ired- (N. 0.) 61; Jofinson v. Davis, 7 Tex. 173.
»Te Blue V. Christ, 4 111. App. 351.
8T7 Johnson v. Miller, 63 Iowa, 529, 17 N. W. 34; Id., 82 Iowa, 693. 47 N.
W. 903, and 48 N. W. 1081.
«T8 Page V. Parker, 43 N. H. 363-367; Tappan v. Powers, 2 Hall (N. T.) 277;
Llrermore v. Herschell, 3 Pick. 33; Bredin v. Bredin, 3 Pa. St. 81.
»T» Cooley, TOTts, 125; Robinson v. Parks, 76 Md. 118, 24 Atl. 411; Lee v.
Kendall, 56 Hun, 610, 11 N. Y. Supp. 131; Kimball v. Harman, 34 Md. 407.
«8«) Brinkley v. Piatt, 40 Md. 529; Williams v. Dickenson, 28 Fla. 90, 9 South.
847; AUen v. Kirk, 81 Iowa, 659, 47 N. W. 906; Taylor Co. v. Standley. 79
Iowa, 6G9, 44 N. W. 911; Work v. McCoy, 87 Iowa. 217. 54 N. W. 140; Kil-
burn V. Rice. 151 Mass. 442, 24 N. E. 403; Percival v. Harres, 142 Pa. St
369. 21 Atl. 876; Gaunce v. Backhouse, 37 Pa. St. 350; Brackett v. Griswald,
59 Hun. 617, 13 N. Y. Supp. 192; St. Paul Distilling Co. v. Pratt, 45 Minn.
215, 47 N. W. 789; Rollins v. Board of Com'rs, 15 Colo. 103, 25 Pac. 319;
Strout V. Packard, 76 Me. 148. Letters written by one conspirator to another
during alleged conspiracy are admissible. Zellerbach v. Allenbergt 99 CaL
57, 33 Pac. 786. But see Blum v. Jones, 86 Tex. 492, 25 S. W. 694.
»8i Casey v. Olnchanati Typographical Union No. 3, 45 Fed. 135; Rogers-
Ch. 9] CONSPIRACY. 641
SAME- STRIKES AND BOYCOTTS.
207. The essential elements of strikes and boycotts action-
able as torts are —
(a) A combination of persons to do harm to another;
(b) Malicious intent; and
(c) Damage to complainant.
The Covibination.
It is constantly and loosely said that, what one person may law-
fully do singly, two or more may lawfully agree to do, and actually
do, jointly.*** This can by no means be accepted at the present
time as unqualifiedly true. Leaving technical reasoning and author-
ity out of Tiew for a moment, it is evident, from ordinary considera-
tions, that the sum of a number of similar actions may result in a gen-
eral effect, the elements of which are not apparent in isolated action.
The separation of a single animal is not a stampede. A single deser-
tion is not a panic. A single servant may leave his employment
without suggesting the paralysis of a general "tie up." One member
of a crew might, without wrong, leave a train, on the main traveled
road, although it would be a criminal outrage for the entire train
crew to abandon the train at the same point. There is, however,
abundance of legal authority and reasoning against so artificial a
conclusion.
In the criminal law, it is entirely clear that "an agreement to
effect an injury or wrong to another by two or more persons consti-
tutes an offense, because the wrong to be effected by a combination
V. Evarts (Sup.) 17 N. Y. Snpp. 264; Mogul S. S. Co. v. M'Gregor. 15 Q. B.
Div. 476; St. Paul Distilling Co. v. Pratt, 45 Minn. 215, 47 N. W. 789; Allen v.
Kirk, 81 Iowa, 658, 47 N. W. 906.
382 "What one man may lawfully do singly, two or more may lawfully agree
to do jointly. The number who unite to do the act cannot change its char-
acter from lawful to unlawful. The gist of a private action for tho wrongful
act of many is, not the combination or conspiracy, but the damage done or
threatened to the plaintiff by the acts of the defendants. If the act be un- I
lawful, the combination of many to commit it may aggravate the injury, but
cannot change the character of the act." Per Mitchell, J., In Bohn Manuf*g
Co. V. Hollis, 54 Minn. 223-234, 55 N. W. 1119.
LAW OF TOKTS— 41
642 MALICIOUS WRONGS. [Ch. 9
aHKuine« a foniiidablo character. When done bj one alone, it is
but a civil injury, but it aAsunies a formidable or aggravated char-
ixcti'V wli<*ii it is to be effected by the powers of combination."'"
In Com. V. Carlinle,*** (1><21) where employers combined to depress
the wa{;es of tlieir employes by artificial means, Chief Justice Gib-
son, '*that judge of 'great and enduring reputation,' " '** said : ''There
is, between the different parts of the body politic, a reciprocity of
action on each other, which, like the action of antagonizing muscles
in the natural body, not only prescribes to each its appropriate state
and condition, but regulates the motion of the whole. The effort
of an individual to disturb this equilibrium can never be percepti-
ble, nor carry the operation of his interest, or that of any other in-
dividual, beyond the limit of fair competition. But, the increase
of power by combination of means being in geometrical proportion
to the number concerned, an association may be able to give it im-
pulse, not only oppressive to individuals, but mischievous to the
public at large; and it is the employment of an engine so powerful
and dangerous that gives criminality to an act that would be per-
fectly innocent, at least in a legal view, when done by an individual.'*
This distinction is recognized in civil cases as the basis of liability
in tort, and as resting on sound reasoning, although caution should
be exercised not to carry the doctrine beyond the limits necessary
for protection of individuals.*'*
This view of the law has received indorsement in the recent strike
castas. As a matter of fact, the questions of law which they involve
«
8«3 Rex V. Reward, 1 Adol. & E. 706. Cf. Reg. v. Peck, 9 Adol. & B. 686;
UoK. V. ParneU, 14 Cox, Cr. Cas. r)()S^'>14; Quetni v. Kenrick, 5 Q. B. 49; Com.
V. Hunt, 4 Mote. (Mass.) 111-121; State v. Stewart, 59 Vt 273-28G. 9 Atl. 559:
State v. (nidden, 55 Conn. 46-78, 8 Atl. 890.
aH4 Brightly, N. P. (Pa.) 3(J-41, Append.; Callan v. Wilson, 127 U. S. 540-
55(t, 8 Suj). ('t. IMOl; Fanners' Ix)nu & Trust Co. v. Northern Pac. R, Co., 60
Fed. 8(>:i; Cote v. Murphy, 159 Pa. St 420, 28 Atl. 190.
3 80 See Jenkins, J., In FarnMTs* lioan & Trust Co. v. Northern Pac. R. Ca,
60 FtHl. S03 vH15.
««c Bowen, L. J., In Mojnil Steamship Co. v. McGregor, 23 Q. B. Div. 598,
at jKiKt* (UtS. In house of h)rds (118J)2] App. Cas. 25, at page 38) Lord Hals-
bury said: ''I do not deny tliat there are many things which might be per-
fei'lly lawfully done by an individual, which, when done by a number of per-
sons, become unlawful."
Ch. 9] CONSPIRACY. 643
had immediate reference to injanction, rather than to damages, but
the underlying principles enunciated control liability in tort.'*^
It is insisted that "any man (unless under contract obligation, or
employment charging him with a public duty) has a right to refuse
to work for or deal with any man, or class of men, as he sees fit;
and this right, which one man may exercise singly, any number may
agree to exercise jointly." *** Indeed, the common-law right of la-
borers to combine and use peaceful means to advance their interests,
and, more specifically, the price of labor, has been generally broad-
ened by statute."* Where such a statute extends the common-law
rights as to combinations of labor, the courts recognize correspond-
ing changes in the rights of employers to combine to resist employes.
Therefore, where employes enter into a lawful combination to con-
trol, by artificial means, the supply of labor, preparatory to a de-
mand for an advance in wages, a combination of employers to resist
such artificial advance is lawful, since it is not made to lower the
price of labor, as regulated by supply and demand.®*® However, the
right of employes to leave their employment whenever they choose
is far from being absolute.'*^ In Farmers' Loan & Ti'ust Co. v.
88T 'There would seem to be no good reason why, in some cases at least,
the third person Injured should not have a remedy also, theoretical but
practically useless, against the striker, not for breach of contract, but for a
tort committed in that breach by the misfeasance or nonfeasance of duty.**
Ardemus Stewart, Esq., on the legal side of the strike question, 1 Am. Law
Reg. & Rev. 600-614. And see Temperton v. Russell [1893] 4 Reports, 376, at
page 386, per Lord Justice A. L. Smith; Farmers' liOan & Trust Co. v. Noilh-
ern Pac. R. Co., 60 Fed. 815; Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania
Co., 54 Fed. 746.
888 Pardee, J., in Re Higgins, 27 Fed. 443; Beatty, J., in Coeur d*Alene
Consolidated & Mto. Co. v. Miners* Union, 51 Fed. 260; Carew v. Ruther-
ford, 106 Mass. 1; Bo wen v. Matheson, 14 Allen (Mass.) 499; Snow v.
Wheoler, 113 Mass. 179; Walker v. Cronln, 107 Mass. 555; Payne v. Western
& A. R. Co., 13 Lea (Tenn.) 507; Cooley, Torts, 278; Hilton v. Eekersley,
6 El. & Bl. 47. And see Sir William Earl's treatise on the Law Relating to
Traders' Unions, at page 13.
389 As in Maj'er v. Journeymen Stone-(^uttors' Ass'n, 47 N. J. Eq. 519, 20
Atl. 492. And see Perkins v. Rogg, 28 Wkly. Law Bui. 32.
800 Cote V. Murphy, 159 Pa. St 420, 28 Atl. 190. And see Buchanan v.
Barnes (Pa. Sup.) 28 AtL 195; Buchanan v. Kerr, 159 Pa. St. 433, 28 Atl. 19.5.
301 *'Rights are not absolute, but are relative. Rights grow out of duty,
and are limited by duty. One has not the right arbitrarily to quit service
644 MALICIOUS WRONGS. [Ch. 9
Northern Pac Ry. Co.,'®* Judge Jenkins held that a strike was nec-
essarily illegal. In Arthur v. Oakes,**' however, Mr. Justice Har-
lan said : "We are not prepared, in the absence of evidence, to hold,
as a matter of law, that a combination among employes, having for
its object their orderly withdrawal, in large numbers or in a body, from
the service of their employer, on account simply of a reduction in
without regard to the necessities of that serrlce. His right of abandonment
is limited by the assumption of that service, and the conditions and exigen-
cies attaching thereto. It would be monstrous if a surgeon, upon demand and
refusal of larger compensation, could lawfully abandon an operation partially
performed, leaving his Icnife in the bleeding body of his patient. It would
be monstrous if a body of surgeons, in aid of such demand, could lawfully
combine and conspire to withhold their services. • ♦ • It would be intol-
erable if counsel were permitted to demand larger compensation, and to en-
force his demand by immediate abandonment of his duty in the midst of a
trial. It would be monstrous if the bar of a court could combine and con-
spire in aid of such extortion by one of its members, and refuse their service.
I take it that in such case, if the judge of the court had proper appreciation
of the duties and functions of his office, that court, for a time, would be with-
out a bar, and the jail would be filled with lawyers. It cannot be conceded
that an individual has the legal right tx> abandon service whenever he may
please. His right to leave is dependent upon duty, and his duty is dictated
and measured by the exigency of the occasion." Jenkins, J., in Farmers'
Loan & Trust Co. v. Northern Pac. R. Co., GO Fed. 803, 812.
392 He defined a strike to be (at page 821) *'a combined effort among workmen
to compel the master to the concession of a certain demand, by preventing the
conduct of his business until compliance with the demand. The concerted ces-
satioq, of work is but one of, and the least effective of, the means to the end;
the intimidation of others from engaging in the service, the interference with,
and the disabling and destruction of, property, and resort to actual force and
violence, when requisite to the accomplishment of the end, being the other,
and more effective, means employed. It is idle to talk of a peaceable strike.
None such ever occurred. The su;?gestion is impeachment of intelligence.
From first to last, ♦ ♦ ♦ force and turbulence, violence and outrage, arson
and murder, have been associated with the strike as its natural and inevi-
table concomitants. No strike can be effective without compulsion and force.
That compulsion can come only through intimidation. A strike without vio-
lence would equal the representation of the tragwly of Hamlet with the part
of Hamlet omitted. The moment that violence becomes an essential ixart of
a scheme, or a necessary means of effecting the purpose of a combination,
that moment the combination, otherwise lawful, becomes lllegaL AU com-
»»3 G3 Fed. 310-4J27, citing Farrer v. Close, L. li. 4 Q. B. 602-612.
Ch. 9] CONSPIRACY. 645
their wages, is not a strike, within the meaning of the word as com-
monly used. Such a withdrawal, although amounting to a strike,
is not either illegal or criminal." It was held in this case, however,
that "an intent upon the part of a single person to injure the rights
of others, or of the public, Js not in itself a wrong of which the law
will take cognizance, unless some injurious act be done in execution
of the unlawful intent; but a combination of two or more persons,
with a power to do an injury they would not possess as individuals
acting singly, has always been recognized as in itself wrongful and
illegal."
Malicious Intent.
There are many loose sayings to the effect that the malicious mo-
tive makes a bad case worse, but they cannot make that wrong
which, in its own essence, is lawful.'** This unqualified statement
18 not true, as applied universally to the law of torts,"* nor is it
true as applied to the matter under consideration. Malicious injury
to the business of another has long been held to give a right of ac-
tion to the injured party.'®' Judge Taft, in his celebrated opinion
binations to interfere with perfect freedom in the proper management and
control of one's lawful business, to dictate the terms upon which such busi-
ness shaU be conducted, by means of threats or by interference with property
or traffic or with the lawful employment of others, are within the condenma-
tion of the law. It has well been said that the wit of man could not devise
a legal strike, because compulsion is the leading idea of it. A strike is es-
sentially a conspiracy to extort by violence, the means employed to effect
the end being not only the cessation of labor by the conspirators, but the nec-
essary preventioa of labor by those who are willing to assume their places,
and, as a last resort, and in many instances an essential element of success,
the disabling and destruction of the property of the master, and so, by in-
timidation, and by the compulsion of force, to accomplish the end designed."
3 94 Jenkins v. Fowler, 24 Pa. St 308; Hey wood v. Tillson, 75 Me. 225; Mor-
ris V. Tuthill, 72 N. Y. 575; Mahan v. Brown, 13 Wend. 261; Phelps v.
Nowlen, 72 N. Y. 39; Bohn Manuf g Co. v. HiUis (supra).
395 Ante, pp. 55, 5G.
3»o Garret v. Taylor, Cro. Jac. 567; Keeble v. HickeringiU, 11 East, 574;
Gunter v. Astor, 4 Moore, 12, 10 E. C. L. 357; Lumley v. Gye, 2 El. & Bl. 210;
Gregory v. Duke of Brunswick, 6 Madd. & G. 205; Young v. Hichens, 6 Q.
B. 606; Temperton v. Russell [1803] 1 Q. B. 715; Oarew v. Rutherford, 100
Mass. 1; Walker v. Cronin, 107 Mass. 555; Van Horn v. Van Horn, 52 N. J.
Law, 284, 20 Atl. 485, affirmed 28 Atl. 669; Lucke v. Assembly (^Id ) 26 Ati.
64G MALICIOUS WRONGS. [Ch. 9
in Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co-,»®^ said:
"Ordinaiily, when such a combination of persons does not use vio-
lence, actual or threatened, to accomplish their purpose, it is diffi-
cult to point out with clearness the illegal means or end which
makes the combination an unlawful conspiracy; for it is generally
lawful for the combiners to withdraw their intercburse and its bene-
fits fi-om any pereon, and to announce their intention of doing so,
and it is equally lawful for the others, of their own motion, to do
that which the combiners seek to compel them to do. Such com-
binations are said to be unlawfuj^ogspiracies, though the acts in
themselves, and considered singly, are innocent, when the acts are
done with malice, i. e. with the intention to injure another without
lawful excuse.'' Indeed, the gravamen of the wrong in cases of this
kind is malice.^®* This renders necessary, in cases of this kind,
an inquiry as to the intent of the defendants, to ascertain if the
ease falls within the class in which it is held that malicious motive
may make an act, which would not be wrongful without malice,
wrongful when done with malice.*'^" ^*Malice," as here employed, of
course, signifies, not colloquial, but technical, malice. "Malice"
means the purpose of injuring the plaintiff, or benefiting the de-
fendant at the expense of the plaintiff.*®^
Daviage to Qyniplainant
While a combination to injure others may be the basis for pre-
ventive relief in a court of equity, the wrong is not a complete tort
505; Curran v. Galen (Sup.) 22 N. Y. Supp. 826; Bradley v. Pierson, 148 Pa.
St. 502, 24 Atl. G5; Ryan v. Brewing Co. (Sup.) 13 N. Y. Sijpp. 660; Moores
V. Union, 23 Wkly. Cin. Law Bull. 48, 7 Ry. & Corp. Law J. 108; Delz v.
Wlnfree (Tex. Sup.) 16 S. W. Ill; Olive v. Van Patten (Tex. Civ, App.) 25
S. W. 428; Jackson v. Stanliold (Ind. Sup.) 36 N. E. 345; Railroad Co. v.
Greenwood (Tex. Civ. App.) 21 S. W. 559; Chipley v. Atkinson. 23 Fla. 206,
1 South. 943; Haskins v. Royster, 70 N. C. 601; Blxby v. Dunlap, 56 N. H.
456, 22 Am. Rep. 475, note; Mapstrlck v. Ramge, 9 Neb. 390, 2 N. W. 739.
307 54 Fed. 730-738, and authorities cited. And see Mogul S. S. Co. v. Mc-
Gregor, supra.
308 Van Horn v. Van Horn, 52 N. J. Law, 284, 20 Atl. 485, Chase, Lead. Cas.
109.
300 Ban- V. Essex Trades Council (N. J. Ch.) 30 Atl. 881.
400 Van Horn v. Van Horn, 52 X. J. Law, 281, 20 Atl. 485, per Scudder, J.;
Temperton v. Russell, 4 Reports, 376.
Ch. 9] CONSPIRACY. 647
untU damage has been suffered. But mere damage alone is not
necessarily suflScient In Mogul Steamship CJo. v. McGregor,**^^ on
appeal, Bowen, L. J./®^ considered the proposition "that an action
will lie if a man maliciously and wrongfully acts so as to injure an-
other in that other's trade." "Obscurity," he said, "resides in the
language used to state this proposition. The terms ^maliciously,'
^wrongfully,' and ^injure' are words all of which have accurate mean-
ings, well known to the law, but which also have a popular and less
precise signification, into which it is necessary to see that the argu-
ment does not imperceptibly slide. An intent to 'injure,' in strict-
ness, means more than an intent to harm. It connotes an intent to
do wrongful harm. 'Maliciously,' in like manner, means and im-
plies an intention to do an act which is wrongful, to the detriment
of another. The term 'wrongful' imports, in its turn, the infringe-
ment of some right. The ambiguous proposition ♦ ♦ ♦ there-
fore leaves unsolved the question of what, as between the plaintiffs
and defendants, are the rights of trade. ♦ ♦ ♦ The plaintiffs had
a right to Jt)e protected against certain kind of conduct, and we
have to consider what conduct would pass this legal line or bound-
ary. Now, intendonally to do that which is calculated, in the
ordinary course of events, to damage, and which does in fact dam-
age, another, in that other person's property or trade, is actionable, I
if done without just cause or excuse. Such intentional action, when I
done without just cause or excuse, is what the law calls a 'malicious •
wrong.' '*
*oi This case, as reported in L. R. 15 Q. B. 476-482, was regarded bj' Lord
Coleridge, C. J., as involving a boycott. A temporary injunction was, how-
ever, refused, because irreparable damage was not shown.
402 23 Q. B. Div. 598, at pages 612, 613. And see dissenting opinion of
liord Esher, at page 601. This great ease was finally appealed and decided.
[1892] App. Oas. 25, affirming the decision of the court of appeal. More spe-
cifically that since the acts of defendant were done with the lawful object
of protection and extending their trade, and increasing their profits, and
since they had not employed any unlawful means, the plaintiff had no
cause of action. For further reiK>rt see 61 Law J.. Q. B. 295; 66 Law T. 1;
40 Wkly. Rep. 337. See, also, Walkea- v. Cronin, 107 Mass. 555; Hey wood v.
Tillson, 75 Me. 225.
618 MALICIOUS WRONGS. [Ch. 9
Principles Applied.
At the one extreme, the exercise of equal rights affords a full justi-
fication to the charge of an actionable conspiracy of this kind. In
Mogul Steamship Co. v. McGregor,*®* the defendants, shipowners,
formed an association to maintain a monopoly of homeward tea
trade, whereby they allowed purchasers of tea shipped exclusively
in their vessels a rebate on freights. The plaintiffs, rival shipown-
ers, suffered damage because they were excluded from the benefits
of the association. The right to recover was denied because the de-
fendants were pushing their lawful trade by lawful means. Com-
petition afforded a full justification. The motive of the defendant
was business gain, without actual malice to the plaintiff.*®* No un-
lawful means were employed.*®*
At the other extreme, a boycott must, consistently with these
cai^s, be regarded as an actionable wrong. Lawful competi-
tion in business may damage another without creating a wrong, but
trades unions are not ordinarily competitors of the persons against
whom a boycott is directed. There is no rivalry in business. The
purpose of the boycott is, by a combination of many, to cause loss to
one person by coercing others, against their will, to suspend or dis-
continue dealing or patronage because of his refusal to comply with
demands of the boycotters.*®* This is a totally different thing from
that competition which is the life of trade. It was accordingly held
in Barr v. Essex Trades Counsel *®^ that the boycott of a newspaper,
which included threatening circulars, designed to procure discontinu-
403 23 Q. B. Div. 598.
404 Coleridge, C. J., in L. R. 21 Q. B. Dlv. 544, at page 552.
405 So, wholesale butchers, to protect each other from dishonest and In-
Mlvent customers, and otherwise naturally to assist each other, may agree
that each, on the request of the other, will refuse to sell merchandise to
any butcher indebted to them both, and such butcher cannot recover for
consequent Injury to his business. Delz v. Wlnfree, 6 Tex. Civ. App. 11. 25
S. W. 50. Cf. Duel)er Watch-Case Manuf'g Co. v. E. Howard Watch Co. (Sup.)
24 N. Y. Supp. (547.
406 Definitions of boycott, 2 Am. & Eng. Enc. Law, 512, quoting Com. v.
Shelton, 11 Va. Law J. 324. A histoiy and definition of the word, with na-
merous authorities, as to the lights of employers land employes, and the
civil liability of those establishing a boycott, by D. H. Pingrey, 38 Cent. Law
J. 427.
407 30 Atl. 884.
Ch. 9] CONSPIRACY. 649
ance of adyertlBements and decrease of circulation, is an actionable
wrong. Boycotts, indeed, liave been almost universally regarded as
illegal conspiracies, and therefore as actionable wrongs.^®*
Between these extremes, the authorities are not in accord. In
Bohn Manufg Co. v. Hillis **• it was held that a voluntary associa-
tion of retail dealers could agree not to deal with any manufac-
turer or wholesale dealer who would sell direct to consumers, and,
in accordance with such agreement, notify all members whenever
any wholesale dealer or manufacturer made any such sale, without
committing an actionable wrong, or creating a basis for the issu-
ance of an injunction. Here the conduct of the retailers' associa-
tion may have been justified by the exercise of equal rights. It was
an effectual check on dangerous competition. Moreover, in this case,
408 Old Dominion S. S. Go. v. McKenna, 30 Fed. 48, 24 Blatchf. 214. See
21 Am. Law Kev. 509, 7(ri; Barr v. Essex Trades Council (N. J. Ch.) 30 Atl.
881; Carew v. Rutherford, 106 Mass. 1; State v. Glidden, 65 Conn. 46, 8 Atl.
890; State v. Stewart, 59 Vt 273, 9 Atl. 559; Casey v. Typographical Union.
4r. Fed. 135; Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 730,
7o8; Thomas v. Cincinnati Ry. Co., 62 Fed. 803, commenting, inter alia, on
U. S. V. Wopkingmen's Ass'n, 54 Fed. 994; U. S. v. Patterson, 55 Fed. 605.
*oi> Bohn Manufg Co. v. Hollis,54 Minn. 223, 55 N. W. 1119, citing, inter alia,
Bowen v. Matheson, 14 Allen (Mass.) 409; Parker v. Huntington, 2 Gray
(Mass.) 124; Wellington v. Small, 3 Cush. (Mass.) 145; Payne v. Western & A.
R. Co., 13 Lea (Tenn.) 507; and Mogul S. S. Co. v. McGregor, supra. The con-
clusion reached may be in harmony with this last case, but certainly not the
process by which it is arrived at. **It will therefore be perceived that the mo-
tive for combining, or, what is the same thing, the nature of the object to be
attained as a consequence of the lawful act, is, in this class of cases, the dis-
criminating circumstance. Where the act is lawful for an individual, it
can be the subject of a conspiracy when done in concert only where there
is a direct intention that injury shall result from it, or where the object
Is to benefit the conspirators to the prejudice of the public, or the oppres-
sion of individuals, and where such prejudice or oppression is the natural
and necessary consequence." Gibson, J., in Com. v. Carlisle, Brightly, N.
P. (Pa.) 30. And see State v. Buchanan, 5 Har. & J. 317; State v. De Witt, 2
Hill (S. C.) 282; State v. Norton, 23 N. J. Law, 33; State v. Donaldson, 32 N. J.
Law, 151; State v. Burnham, 15 N. H. 396; State v. Glidden, 55 Conn. 46, 8
Atl. 800; Sherry v. Perkins. 147 Mass. 212. 17 N. E. 307; Smith v. People,
25 111. 17; State v. Stewart, 59 Vt 273, 9 Atl. 559; In re Higgins, 27 Fed. 443;
Coeur d'Alene Consolidated & Min. Co. v. Miners' Union, 51 Fed. 200; C.
S. V. Workingmen's Amalgamated Council, 54 Fed. 994.
650 MALICIOUS WRONGS. [Ch. 9
as in the cases in which the right of men to quit the emplo3nme!it
of their master is recognized, there was simply the exercise jointly
of the right any man has to deal with those he chooses, and to quit
working whenever he chooses, in the absence of such particular cir-
cumstances; as, for example, where there is an attempt to influence
the conduct of persons outside of the association. In Delz v. Win-
free *** the court recognized as correct the proposition that a person
has an absolute right to refuse to have business relations with any
person whomsoever, whether the refusal is based upon reason, or
is the result of whim, caprice, prejudice, or malice, and there is no
law which fwces a man to part with his title to his property, but
added: "The privilege here asserted must be limited to the in-
dividual action of the party who asserts the right It is not equally
true that one person may from such motive influence another per-
son to do the same thing." Accordingly, while it was held that no
action for conspiracy would lie for refusal on the part of several
dealers in cattle to sell to the complainant (a nonpaying customer),
yet such action would lie if they induced another dealer, who like-
wise refused to sell to him. And in Temperton v. Russell *" it was
distinctly held that a combination by two or more persons to induce
<)thei*s not to deal with, or to enter into contract with, a particular
individual, is actionable, if done for the purpose of injuring that
410 80 Tex. 400, 16 S. W. 111. In the same case It was subsequently dis-
tinctly held (6 Tex. Civ. App. 11, 25 S. W. 50) that wholesale butchers, to
protect each other from dishonest and insolvent customers, and otherwise
naturally to assist each other, may ajn'ee that each, on the request of the
other, will refuse to sell merchandise to any butcher Indebted to them both,
und such butcher cannot recover for conseiiuent injury to his business. ThU
doctrine was followed In Olive v. Van Patten (Tex. Civ. App.) 25 S. W. 42S.
There it was held that a petition alleging that defendants (wholesale lumber
dealers) formed an association agreeing not to sell to others than dealers;
that, because of refusal by plaintiff (another dealer) to Join such association,
they had maliciously distributed circulars asking that patronage be with-
drawn from plaintiff tiU he agreed not to sell to others than dealers, thereby
influencing others not to deal with plaintiff, to his Injury,— states a good cause
of action. And see Buffalo Lubricating OU Co. v. Standard Oil Co., 106 N. Y.
660, 12 N. B. 826: Bradley v. Pierson, 148 Pa, St. 502. 24 Atl. 65; KeUy v.
Chicago, M. & St. P. Ry. Co. (Iowa) 61 N. W. ©57. Cf. Murray v. McGarigle,
00 Wis. 483. 34 N. W. 522.
*ii [1803] 4 Reports, 376.
Ch. 9] COKSPIKACY. 651
individual, provided he is thereby injured. The courts, however, re-
gard as actionable wrong any attempt to secure a monopoly of busi-
ness by coercion or intimidation by combinations. From this point
of view, Bohn Manufg Co. v. Hollis has been criticised as in conflict
with approved authority, and as being bad as a precedent.^ ^'
In Van Horn v. Van Horn the line is a much finer one, and all the
reasoning of the court, though not necessarily their conclusion, can
hardly be reconciled with authority, or be found consistent. Here
the declaration charged that the defendants conspired to injure the
plaintiff in her business of selling fancy goods, which she carried on
in her own name, and that, by false and malicious statements con-
cerning her personal and business character, they induced and per-
suaded one who had supplied her with goods to remove the stock
so supplied, and to refuse to deliver what he had expected to let
her have, leaving her without any stock to sell, or customers to sell
to. It was held by the supreme court of New Jersey that an action
lay for a combination or conspiracy by fraudulent and malicious acts
to drive a trader out of business resulting in damages,*** and that
this was not an action of slander,*** and on appeal to the court of
last resort**' these views were sustained. It was held that "the
rule to be deduced from these cases, and the one which has the
most ample support, is that while a trader may lawfully engage in
the sharpest competition with those in a like business, by holding
412 Jackson v. Stanfleld, 137 Ind. 592, 36 N. E. 345, and 37 N. E. 14. Here
"The Retail Lumber Dealers* Association of Indiana*' by its bj-Inws gave
an active member a claim ag^ainst a wholesaler for selling to a person not
a "regular dealer" in such member's community, provided for a hearing of
the claim by a committee, and required members to refuse to patronize a
wliolesaler who ignored the committee's decision. Plaintiff* who was not a
"regular dealer," underbid defendant on a contract, but wholesalers refused
to sell to him, and he was obliged to abandon the contract, because defend-
ant, an active member of the association, had previously enforced a claim
against a wholesaler who had sold to plaintiff, and expressed an intention
of continuing to enforce such claims. Held, that defendant was liable for
the amount which plaintiff lost by abandoning his contract, and would be
perpetually enjoined from making a claim under the bylaws of the associa-
tion against any person who sold to plaintiff.
418 52 N. J. Law, 284, 20 Atl. 485.
*i4 55 N. J. Law, 514. 21 Atl. 1069.
41 B (N. J. Err. & App.) 28 AtL 6G9. •
652 MALICIOUS WRONGS. [Ch. 9
out extraordinary inducements, by representing his own wares to
be better and cheaper than those of others, yet when he oversteps
that line, and commits an act with the malicious intent of inflicting
injury upon his rival's business, his conduct is illegal, and if dam-
age results from it the injured party is entitled to redress."
€pe ^o^^w^o^'^ ^ene0*
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TABJSE OF CONTENTS.
OHAPTBR I.
DEFINITION OP CRIME : The nature of crime
and groand of panlthmeot.
OHAPTBR II.
CRIMINAL LAW: How the criminal law is pre-
scribed; the common law: Btatntes, and the
powers of state and federal legislatures.
CHAPTER in.
CLASSIFICATION OP CRIMES: As treason, fel-
onies, misdemeanors, eta ; merger of offenses.
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THE MENTAL ELEMENT IN CRIME: Con-
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CHAPTER V.
PERSONS CAPABLE OF COMMITTING CRIME:
Covering also exemption from responsibility,
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CHAPTER YI.
PARTIES CONCERNED: Covering effect of
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and second degrees, accessories before and
after the fact, terms ** aider and abettor" and
tt accomplice. "
CHAPTER Vn.
TEiEi OVERT ACT: Covering also attempts, so-
licitation and conspiracy.
CHAPTER Vm.
OFFENSES AGAINST THE PERSON: Cover-
ing homicide, murder, and manslaughter, with
consideration of the different degrees, acci-
dent» self-4efense, eta
CHAPTER IX.
OFFENSES AGAINST THE PERSON (ConUn-
ued) : Covering abortion, mayhem, rape, sod-
omy, seduction, assaults, false imprisonment,
kidnapping, abduction.
CHAPTER X.
OFFENSES AGAINST THE HABITATION:
Covering arson and burglary.
CHAPTER XI.
OFFENSES AGAINST PROPERTY: Covering
larceny, embezzlement, cheating at common
law and by false pretenses, robbery, receiving
stolen goods, malicious mischief, forgery, etc.
CHAPTER XII.
OFFENSES AGAINST THE PUBLIC HEALTH,
'MORALS, ETC. : Covering nuisances in gen-
eral, bigamy, polygamy, adultery, fornication,
lewdness, eta
CHAPTER XIIL
OFFENSES AGAINST PUBLIC JUSTICE AND
AUTHORITY: Covering barretry, obstructr
ing Justice, embracery, prison breach, mispri-
sion of felony, compounding crime, perjury,
bribery, misconduct in office, eta
CHAPTER XIV.
OFFENSES AGAINST THE PUBLIC PEACE:
Covering dueling, unlawful assembly, riot,
affray, forcible entry and detainer, libels on
private persons, eta
CHAPTER XV. .
OFFENSES AGAINST THE GOVERNMENT:
Covering treason and misprision of treason.
CHAPTER XVL
OFFENSES AGAINST THE LAW OF NA-
TIONS: As piracy.
CHAPTER XVn.
JURISDICTION: Covering territorial limits of
states and United States, jurisdiction as deter-
mined by locality, federal courts and the com-
mon law, jurisdiction conferred by oongress,
persons subject to our laws, eta
CHAPTER XVIII.
FORMER JEOPARDY : In generaL
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CHAPTER I.
CONTRACT IN GENERAL: Covering iU defl-
nitiOD, nature, and requisites, and discusBing
agreemcDt, obligation, promise, yoid, voidable,
and noenforoeable agreementfl» and the essen-
liala of contract, eta
CELAPTER n.
OFFER AND ACCEPTANCE: Covering iin-
plied contracted necessity lor communication
and acceptance, cbaracter, mode, piece, time,
and effect of acceptance, revocation, and lapse
of offer, etc.
CLASSIFICATION OF CONTRACTS: Cover-
ing contracts of record and contraota under
seal, and tbeir oharacteristioa.
CHAPTER lY.
REQUIREMENT OF WRITINa: Covering also
statute of frauds* and discussing promise bj
executor, promise to answer for another,
agreements in consideration of marriage and
in relation to land, and agreements not to be
performed within a year, sufficiency of memo-
randum, eta
OHAPTBR V*
CONSIDERATION: Covering the neceesityfor
consideration, its adequacy, reality, and legal-
ly, failure of oonaideration, eta
CHAPTER Tl.
CAPACITY OF PARTIES: Covering political
and professional status, infanta, insane and
drunken peraons, married women, and oorpc^
rationa
CHAPTER YII.
REALITY OF CONSENT: Covering mistake,
misrepresentation, fraud, dnreaa, and uDdue
influenoa
CHAPTER Vm.
LEGALITY OF OBJECT: Covering unlawful
agreements in general, agreements In vioh-
tion of positive law and those contrary to pab
lie polipy, effect of illegality, oonfliot of laws,
eta
CHAPTER IX.
OPERATION OF CONTRACT: Covering the
limita of the contractual relation, aasignmeot
of contracts, whether by act of parties or bj
operation of law, joint and several oontracta,
•ta
INTERPRETATION OF CONTRACT: Cover
ing the rules relating to evidence, proof of
document, rules of construction, penalties sod
liquidated damages, eta
CHAPTER XI.
DISCHARGE OF CONTRACT: Covoring dis*
charge by agreement, by performanoe, I7
breach, by impoesibility of performanoe, by
operation of law.eia, and remedtea on bresob
of ootttraot.
CHAPTER XII.
AGENCY: Covering the creation of the relatioii,
ita effect and determination, the oapsdtj,
rights, and liabilitiea of the psirtiea, ota
CHAPTER Xm.
QUASI CONTRACT: Covering obligatloiis cre-
ated by law upon whidi an notion ex oontrscta
will lie without proof of contraot in ftot, ior
dttding Jndgmenis, obligations Imposed ^
statnta oota of partlea, eta
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SECOND EDITION.
TABLE OF CONTENTS.
Gbapter I.
FORMS OF ACTION: Covering the nature and
claasiflcation of actionB, real, personal, and
mixed actions, assumpsit, special and general,
debt, covenant, account or account rendered.
ChApter XI.
FORMS OF ACTION (Continued): Coirering
trespass, trover, case, detinue, replevin, eject-
ment, writ of entry, forcible entry and detain-
er, etc.
Oliapter IXL
THE PARTIES TO ACTION 8 : Covering actions
in form ex contractu and ex delicto, and the
consequences of misjoinder or nonjoinder of
parties plaintiff or defendant.
Chapter IV.
THE PROCEEDINGS IN AN ACTION: Cover-
ing process, the summons, writ of attachment,
appearance, the declaration, demurrer, and va-
rious pleas, amendments, etc., the verdict, and
proceedings after the verdict, the judgment,
and proceedings thereafter to the writ of exe-
cution.
Ohapter V.
THE DECLARATION: Statement of cause of
action in general; form of declaration; es-
sential averments of declaration in special as-
sumpsit or on common counts, in debt, cove-
nant, account, case, detinue, trover, trespass,
replevin, ejectment, and trespass for mesne
profits after ejectment.
Cniapter VL
THE PRODUCTION OP THE ISSUE: Discuss-
ing the rules, and covering the demurrer, the
pleadings, the traverse, forms of the general
issue and of the special traverse, protesta-
tions, exceptions, issues in fact and law, etc.
Chapter VII.
MATERIALITY IN PLEADING: Covering the
general rule, variance, limitation of traverse,
etc.
Chapter VIII.
SINGLENESS OR UNITY IN PLEADING : Cov-
ering the rules in general, duplicity, immate-
rial matter. Inducement, protestation, conse-
quenoes of duplicity and of misjoinder, plea
and demurrer, etc.
Chapter IX.
CERTAINTY IN PLEADING: Covering the
venue, time, quantity, quality, and value,
names of persons, showing title and author-
ity, with subordinate rules, and special re-
quirements in different stages.
Chapter X.
CONSISTENCY AND SIMPLICITY IN PLEAD-
ING : Covering insensibility, repugnancy, am-
biguity, argumentative pleadings, pleadings
in alternative, positive statements, legal effect,
conformance to precedent, commencement and
conclusion.
Chapter
DIRECTNESS AND BREVITY IN PLEADING:
Covering the rules generally, departure, pleas
amounting to general issue, surplusage, etc.
Chapter XII.
MISCELLANEOUS RULES: Covering con-
formance to process, alleging damages and
production of suit, order of pleading, defense,
plea In abatement, dilatory pleas, etc.
APPENDIX: Forms.
This book embodies such of the rules and principles of Common-Law Pleading as are still
recognized and applied in this country. A knowledge of the common-law system is of advantage, if
indeed, it is not essential, to a thorough understanding of both code and equity pleading.
ONE VOLUME, 615 PAGES, $3.75, DELIVERED.
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TABLE OF CONTENTS.
Ohapter I.
DEFINITIONS AND GENERAL PRINCIPLES:
CoDsidering the meaning of '*CODBtitutioDal"
and ^* Unconstitutional;" written and unwrit-
ten constitutions, bills of rigbte, right of revo-
lution, political and personal responsibilitieei
etc.
Chapter H.
THE UNITED STATK8 AND THE STATES:
Considering the nature of the American
Union, sorv^ereignty and rights of the states
and of the people, form of government, the
Federal Constitution, etc
Chapter HL
ESTABLISHMENT AND AMENDMENT OF
CONSTITUTIONS : Containing an historical
introduction, and considering the establish-
ment and amendment of the Federal Constitu-
tion and of State Constitutions.
Chapter IV.
CONSTRUCTION AND INTERPRETATION OF
CONSTITUTIONS: Considerine the offloe
and duty of the judiciary in this direction.
Chapter V.
THE THREE DEPARTMENTS OF GOVERN-
MENT: Considering the division, limitations
on the departments, political and judicial
questions, etc.
Chapter VI.
THE FEDERAL EXECUTIVE: Considering
the election, qualifications, impeachment,
compensation and independence of the Presi-
dent, his oath of office, veto power, pardoning
and military power, and treaty-making power;
vacancy in offlcei the cabinet, appointments
to office, presidential messages, diplomatic re-
lations, authority to convene and adjourn con-
gress, execute the laws, etc.
Chapter VII.
FEDERAL JURISDICTION: Considering the
jurisdiction, powers and procedure of Federal
courts, removal of causes, the United States
and the states as parties, etc.
Chapter
THE POWERS OP CONGRESS: Considering
the constitution, organization and government
of congress, its powers, and the limitations
thereon.
Chapter JJL
INTERSTATE LAW. as determined by the Con-
stitution : Considering its general principles,
the privileges of citizens, interstate extradi-
tion, public acts and judicial proceedings, etc.
Chapter X.
REPUBLICAN GOVERNMENT GUARANTIED.
Chapter
BXECX7TIVB POl^ER IN THE 8TATE&
Chapter XH.
JUDICIAL POWERS IN THE STATES: Con-
sidering the system of courts, judges, juris-
diction, prooess and procedure.
Chapter XIll.
LEGISLATIVE POWER IN THE STATES : Con-
sidering the organization and government of
legislature, limitation and delegation of legis*
lative powers, enactment of Laws, etc.
Chapter XTV.
THE POLICE POWER: Considering the polios
power as vested in congress and in the states,
and its scope and limitations.
Chapter XV.
THE POWER OF TAXATION: Considerinf
the purposes of taxation, independence of
Federal and State governments, limitations on
power, taxation and representation, etc
Chapter XVI.
THE RIGHT OF EMINENT DOMAIN: Deflni'
tion and nature of the power, constitutioDsl
provisions, authority to exercise, public por-
poB?, appropriation to new uses, eta
Chapter XVH.
MUNICIPAL CORPORATIONS: The nature,
control, powers, officers and by-laws of ma-
nicipal corporations, eta
Chapter XVilL
CIVIL RIGHTS, AND THEIR PROTECTION
BY THE CONSTITUTION: Considering
rights in general, liberty, due prooess of law,
vested rights, trial by jury, etc.
Chapter XfX.
POLITICAL AND PUBLIC RIGHTS: Consider-
ing citizenship, right of suffrage, freedom of
speech, right of assembly and petition, eta
Chapter
CONSTITUTIONAL GUARANTIES IN CRIM-
INAL CASES: Considering trial by iui7t
rights of accused, jeopardy, ball, ex post facto
laws, habeas corpus, eta
Chapter
LAWS IMPAIRING THE OBLIGATION OF
CONTRACTS: Considering the obligation
and the impairment of the contract, power of
legislature to contract, remedies on contracts*
etc.
Chapter XXH.
RETROACTIVE LAWS: Considering the validitj
of retroactive statutes, curative statutes^ eta
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TABLE OF CONTENTS.
NATURE AND DEFINITION OP EQUITT,
Oliapter IX.
PRINCIPLES DEFINING AND LIMITING JU-
RISDICTION : Consideriog jurisdiction over
orimes, adequate iegal remedy, complete re-
lief, and multiplicity of suits.
Oluipter HI*
THE MAXIMS OF EQUITY: Definition and
classification of maxims; the enabling and re-
atrlctiye maxims.
Cliapter IV.
THE DOCTRINES OP EQUITY: Considering
estoppel, election, satisfaction, performance,
and conversion,
OlLapter V.
THE DOCTRINES OP EQUITY (Continued):
Considering conflicting rights of purchasers,
assignees, notice, bona fide purchasers, priori-
ties, eta
Ol&apter VI.
THE DOCTRINES OP EQUITY (Contihuxd):
Considering penalties and forfeitures, liqui-
dated damages.
Chapter VH.
GROUNDS FOR EQUITABLE RELIEF: Con-
sidering accident, mistake, fraud, eta
Chapter VilX.
PROPERTY IN EQUITY— TRUSTS: Coverinir
definition, history, and classification of trusts,
charitable trusts, duties and liabilities of trus-
tees, remedies of cestui que trusu eta
Chapter IX.
PROPERTY IN EQUITY — MORTGAGES^
LIENS, AND ASSIGNMENTS
Chapter X.
EQUITABLE REMEDIES : Covering accounting,
contribution, exoneration, subrogation, and
marshaling.
Chapter ZI.
EQUITABLE REMEDIES (Continubd) ; Cov-
ering partition and settlement of boundaries.
Chapter
EQUITABLE REMEDIES (Continued): Cov-
ering specific performance, and considering
enforceable contracts, grounds for refusing re-
lief, etc.
Chapter XTTT.
EQUITABLE REMEDIES (Continubd): Cov-
ering injunctions, and considering tbeir Juris-
dictional principles, classes of cases where
remedy may be used, etc.
Chapter XTV.
REFORMATION. CANCELLATION, AND
QUIETING TITLE.
Chapter XV.
ANCILLARY REMEDIES : Covering discovery^
bills to perpetuate testimony, interpleader,,
receivers, eta
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TABLE OP CONTENTS.
Cbapter I.
JURISDICTION : Covering courts of criminal ju-
risdiotton and venue.
Oliapter H.
APPREHENSION OF PERSONS AND PROP-
ERTY : Covering arrest in general, warrants,
extradition, searches and seizures of property,
and taking property from prisoner.
Chapter HZ.
PRELIMINARY EXAMINATION, BA.IL. AlTD
COMMITMENT: Coveringrlght to release on
bail, hab3as corpus, the recognisance, release
of sureties, etc.
Oliapter IV.
MODE OF ACCUSATION : Covering the indict-
ment and presentment, information, coroner's
inquisition, time of prosecution, and nolle
prosequi, eto.
Chapter V.
PLEADING— THE ACCUSATION: Covering
form of indictment in general, the commence-
ment, and the statement of offense and descrip-
tion of defendant.
Okapter VI.
PLEADING— THE ACCUSATION (Continued):
Covering alleflratlon of intent, knowledge, eto. ;
technical terms: seoond or third offense; set-
ting forth writings; description of property
and persons; ownership.
Chapter
PLEADING— THE ACCUSATION (Continued):
Covering statement of time and place.
Chapter
PLEADING— THE ACCUSATION (Contlnned):
Covering indictments on statutes.
Chapter
PLEADINCJ— THE ACCUSATION (ConUnued):
Covering duplicity, joinder of counts and par-
ties, election, conclusion of indictment^ amend-
ment, aider by verdiot. eta
Chapter X.
PLEADING AND PROOF: Covering Tariancs
and conviction of minor and higher offense.
Chapter
MOTION TO QUASH: (Covering also arraign-
ment, demurrer, and pleas of defendant.
Chapter ZH.
TRIAL AND VERDICT: Covering time and place
of trial, custody and presence of defendant,
bill of particulars, the counsel, judge and jnrj,
arguments and Instructions, eto.
Chapter
PROCEEDINGS AFTER VERDICT: Covering
motion in arrest of judgment, sentence, nev
toial, writ of error, etc.
Chapter
EVIDENCE: Covering facta in laane, motive,
res gestae, other crimes, declarations, oonfes-
aions, character, burden of proof, witnessei,
eta
Chapter
HABEAS CORPUS.
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Author of "Tifiany on Death by Wrongful Act'
TABLE OP CONTENTS.
CKapter X.
FORMATION OF THB CONTRACT: Covering
the capacity of parties, who may sell, the thing
sold, mntau assent, form, and prica
OliApter n.
FORMATION OP THB CONTRACT (Continued) :
CoTering the statute of frauds.
Olutpter HI*
EFFECT OF THB CONTRACT IN PASSING
THB PROPERTT: Covering sales of speoiflo
chattels, — unconditional sales, conditional sales,
sale on trial or approval, and sale or return.
OlLapter XV*
EFFECT OF THE CONTRACT IN PASSING
f[B PROPBRTT (Continued) : Covering sales
chattels not specific, appropriation of property
to the contract, reservation of right of disposal,
etc.
Ohapter V.
MISTAKE, FAILURE OF CONSIDERATION,
AND FRAUD : Showing the effect of mistake,
failure of consideration, and fraud generally,
frauds on creditors, the delivery necessary as
against creditors and purchasers, eta
OliApter VI.
ILLEGALITY: Covering sales prohibited by the
common law, by public policy, and by statute;
the effect of illegality, and the conflict of laws.
Chapter VIZ*
CONDITIONS AND WARRANTIES: Covering
conditions and war ranties generally.
OKapter VULI.
PERFORMANCE: (Covering fully deliyery, the
buyer*s right of examination, acceptance, and
payment.
Oliapter IZ.
RIGHTS OF UNPAID SELLER AGAINST THE
GOODS: Covering the seller^s lien, stoppage
in transitu, and the right of resala
Chapter X«
ACrriON FOR BREACH OF THB CONTRACT:
Covering the various remedies of the seller and
of the buyer.
J Volume* 356 Pages* $3*75^ Delivered*
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TABLE OF CONTENTS.
HfTBOBUOTIOIf.
Corerlne the deflnltion, sonroe, and oaiare of In-
temational Law.
Oliaptar I.
PERSONS IN INTERNATIONAL LAW: Cov-
ering states, their loss of identity, various unions
of states, de facto states, beUigrerency and recog-
nition thereof, and equality ox states.
Cliapter
THE COMMENCEMENT OF STATES— FUNDA-
MENTAL RIGHTS AND DUTIES: Covering
t«he commenoement and recogoition of new
states, effeot of change of sovereignty, the fun-
damental rights and duties of states, eto.
Chapter HI.
TERRITORIAL PROPERTY OF A STATE:
Covering modes of acquiring property, boun*
daries, territorial waters, eto.
Chapter IV.
TERRITORIAL JURISDICTION: Covering ex-
territoriality, sovereigns and diplomatic agents
and their immunities, vessels, right of asylum,
alienage, responsibility for mob violence, extra-
dition, jurisdiction beyond state limits, eta
Chapter V.
JURISDICTION ON THE fflGH SEAS AND
UNOCCUPIED PLACES: Covering nature of
jurisdiction, jurisdiction over merchant ships,
piracy, privateers, letters of marque, slave
trade, etc.
Chapter VI.
THE AGENTS OP A STATE IN INTERNA-
TIONAL RELATIONS: Covering pubUo diplo-
matic agents and consuls, and matters relating
to them.
Chapter VII.
INTERVENTION: Covering the subject gener-
ally.
Chapter VIH.
NATIONALITY: Covering citizenship, allegi-
ance, expatriation, naturalization, eto.
Chapter
TREATIES: Covering the subject generally.
Chapter X.
AMICABLE SETTLEMENT OP DISPUTES:
Covering mediation, arbitration, retorsion, re-
prisals, embargo, pacific blockade, eta
Chapter XI.
INTERNATIONAL RELATIONS IN WAR:
Covering the subject of war generally, includ-
ing the kinds, causes, and objects of war.
Chapter
EFFECTS OF WAR— AS TO PERSONS: Cov-
ering the relations of enemies, noncombatants,
privateers, prisoners of war, and the subjects of
ransom, parole, etc
Chapter Xlll.
EFPBCrrS OF WAR — AS TO PROPERTY:
Covering oontributlons, requiaitiona, forsginer.
booty, ransom, and other questions in regard
to property.
Chapter XIV.
POSTLIMINIUM: The right and lU UmitaUou
defined and explained.
Chapter XV*
MILITARY OCCUPATION: Covering the aefi-
nition, extent, and effeot of oooapation, and the
duties of an occupant.
Chapter XVI.
MEANS OF CARRYING ON HOSTILITIES;
Covering the instruments and means of war,
spies, eto.
Chapter XVH.
ENEMY CHARACTER: Covering enemies gen-
erally, domicile, houses of trade, property siid
transfer thereof, eto.
Chapter XVIII.
NON-HOSTILE RELATIONS: Covering oom-
mercia belli, flags of tmoe, passports, saie-ooa-
ducts, truces or armistices, cartels, eto.
Chapter XTX.
TERMINATION OF WAR: Covering the metb-
ods of termination, uti possidetis, treaties of
peace, conquest, etc.
Chapter XX.
OF NEUTRALITY IN GENERAL: Neutrsli^
defined and explained.
Chapter XXI.
THE LAW OF NEUTRALITY BETWEEN BEL-
LIGERENT AND NEUTRAL STATES: Cov-
ering the rights, duties, and liabilitiea of nettni
states.
Chapter XXH.
CONTRABAND : Covering the subject generally-
Chapter X^kii^.
BLOCKADE : Covering the subject generally.
Chapter XXTV.
VISIT AND SEARCH, AND RIGHT OP AN
GARY: Covering those subjects general!/'
Giving In full, as in no other single work, the Id-
structions for the Government of Armies of tbd
United States In the Field (Lieber) : Papers Car-
ried, or that Ought to be Carried, by Vessels in
Evidence of their Nationality; The Declaration
of Paris; The Declaration of St Petersburg;
The Geneva Convention for the Ameliorstion oi
the Condition of the Siok and Wounded of i^
mies in the Field ; The Laws of War on Land.
(Recommended for Adoption bv the InstUutfi oi
International Law at Oxford, Sept fl^ 188Q) i •°°
The Brussels Conference.
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Students in the law of negotiable paper are recommended to use this volume
in oonnection with their text-books as a means of review. The two hundred and
seven general propositions or summaries of the law, in heavy-faced type, scattered
through the volume, are far preferable for this purpose to any of the so-called
abridgements or quiz books. — Prof. Austin Abbott, on the bulletin board of the
M- Y. University Law School.
C^fdtft en Criimnof iAi».
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it very well adapted for the purpose. For an elementary book it is sufficiently ex-
tensive, its statements ar^ clear, and its mode of arrangement and printing render it
ea.sy to use both by the pupil and the instructor. My class have seemed much
pleased with the book, and their success in its study has been very gratifying to me,
and constitutes one of the best recommendations which the work of the author and
publisher could receive. — Prof. William C. Robinson, Law Dept., Yale University.
C^&tft Oft €cftttACt&
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It will be of great service in the lecture room. — Prof- W. P. Willey, West Virginia
University.
^^Vfmdn Oft Comtnoft tsAtf |J>ftabiftS.
Mr. Shipman's treatment and head-note arrangement m^tmy idea exactly. —
Prol E- F. Johnson, University of Michigan Law Dept
i§(^ Oft Coftstifiteioftaf iAW.
A very hasty examination indicates that the book covers the ground in such a
-way as to be of value to students, and I shall recommend it among others to my
class. — Prof. Emlin McClain, Iowa State University.
:Settet Oft (B^uif ^.
I have examined Fetter on Equity, and can state unreservedly that it more
than realizes my expectations. It is a work of real merit. It sets forth the funda-
mental principles of Equity Jurisprudence in a manner so logical in arrangement,
perspicuous in statement and accurate in treatment as to deserve special recogni-
tion and appreciative comment — Prof. Wm. Hoynes, University of Notre Dame.
Cfdtft Oft CttmiftAf iptcc^utt.
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Louis Law School.
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book forms the basis of instruction. The statements of law are .iiade with unusual
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