INDEX

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

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

[3]. Blake v. Barnard, 9 Car. & P. 626; State v. Crow, 1 Ired. 375; Commonwealth v. Eyre, 1 S. & R. 347; Biggins v. Gulf R. Co., 102 Tex. 417 Accord. Compare Handy v. Johnson, 5 Md. 450.

Similarly, a mere preparation for a possible assault, but without any act indicating a present intention to do personal violence to another, is not an assault. Lawson v. State, 30 Ala. 14; Godwin v. Collins, 67 Fla. 197; Penny v. State, 114 Ga. 77; Gober v. State, 7 Ga. App. 206; Haupt v. Swenson, 125 Ia. 694; State v. Painter, 67 Mo. 84; State v. Milsaps, 82 N. C. 549. But compare State v. Hampton, 63 N. C. 13.

[4]. Townsdin v. Nutt, 19 Kan. 282; Handy v. Johnson, 5 Md. 450; Fairme’s Case, 5 City Hall Rec. 95; Brister v. State, 40 Tex. Cr. 505; Western T. Co. v. Bowdoin, (Tex. Civ. App.) 168 S. W. 1 Accord. Jones v. State, 89 Ark. 213 (semble) Contra.

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

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

[5]. Only so much of the case is given as relates to the question of assault.

[6]. United States v. Kiernan, 3 Cranch, C. C. 435; Plonty v. Murphy, 82 Minn. 268; People v. Lee, 1 Wheeler, Crim. Cas. 364; State v. Davis, 1 Ired. 125; Alexander v. Blodgett, 44 Vt. 476; Newell v. Whitcher, 53 Vt. 589; Bishop v. Ranney, 59 Vt. 316; Barnes v. Martin, 15 Wis. 240; Keep v. Quallman, 68 Wis. 451 Accord.

[7]. United States v. Myers, 1 Cranch, C. C. 310; Keefe v. State, 19 Ark. 190; Hixson v. Slocum, 156 Ky. 487; State v. Dooley, 121 Mo. 591; State v. Herron, 12 Mont. 230; State v. Morgan, 3 Ired. 186; State v. Cherry, 11 Ired. 475; State v. Church, 63 N. C. 15; Bishop v. Ranney, 59 Vt. 316; French v. Ware, 65 Vt. 338 Accord.

[8]. State v. Church, 63 N. C. 15 Accord.

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

[9]. The argument for the plaintiff is omitted.

[10]. In Chapman v. State, 78 Ala. 463; State v. Yturaspe, 22 Idaho, 360; State v. Sears, 86 Mo. 169; State v. Godfrey, 17 Or. 300; McKay v. State, 44 Tex. 43, it was decided that a defendant who aimed an unloaded pistol at another, although perhaps liable for a civil assault, was not guilty of a criminal assault. See also 2 Green, Cr. Cas. 271 n.; Territory v. Gomez, 14 Ariz. 139; People v. Sylva, 143 Cal. 62. Such conduct was held to be a criminal assault in State v. Shepard, 10 Ia. 126; Commonwealth v. White, 110 Mass. 407; State v. Barry, 45 Mont. 598; Clark v. State, (Okl. Cr.) 106 Pac. 803; State v. Smith, 2 Humph. 457; Richels v. State, 1 Sneed, 606 (semble); Morison’s Case, 1 Brown, Just. R. (Scotch) 394. In Commonwealth v. White, supra, Wells, J., said: “It is not the secret intent of the assaulting party, nor the undisclosed fact of his ability or inability to commit a battery, that is material, but what his conduct and the attending circumstances denote at the time to the party assaulted.” Cf. Howell v. Winters, 58 Wash. 436.

[11]. Only so much of the case is printed as relates to this count.

[12]. State v. Daniel, 136 N. C. 571; Degenhardt v. Heller, 93 Wis. 662 Accord. Wood v. Young, 20 Ky. L. Rep. 1931 Contra. It is not an assault to make the kissing sign to another. Fuller v. State, 44 Tex. Cr. 463.

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

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

“Injury is committed not only when a man is struck with the fist or beaten with a stick or lashed, but also when abusive language is publicly addressed to any one, or when ... some one ... has followed about a married woman or a young boy or girl, or when some person’s modesty may be said to have been assailed.” Institutes of Justinian, iv, 4, 1.

“Likewise it is an injury of this kind when one person, without actually striking another, keeps raising his hand menacingly and creates in the other the fear that he will be struck.... Likewise if he mocks another with indecent or indecorous gestures; or if by means of gesticulations he indicates things of such a kind that if they were expressed in spoken words or in writing they would convey an injury.” Voet, Commentary on the Pandects, xlvii, 10, § 7.

“Ignominious treatment is an injury only when it is an infringement of one of the absolute rights of personality: a right that is recognized by the law of the State as included amongst the natural rights of every freeman. Such an infringement of another’s right may be regarded as offensive to good morals (contra bonos mores); hence the definition of injuria as ‘an insult offered to any person against good morals’ (contumelia contra bonos mores alicui illata).” De Villiers, Roman and Roman-Dutch Law of Injuries, 22.

[13]. Meader v. Stone, 7 Met. (Mass.) 147 Accord.

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

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

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

[15]. Kerifford’s Case, Clayt. 22 pl. 38 Accord. See, also, Steinman v. Baltimore Laundry Co., 109 Md. 62; Courtney v. Kneib, 131 Mo. App. 204.

[16]. The statement of the case has been abridged.

[17]. Courtney v. Kneib, 131 Mo. App. 204 Accord. Compare Reynolds v. Pierson, 29 Ind. App. 273.

[18]. A part of the case, relating to a point of practice, is omitted.

[19]. Dodwell v. Burford, 1 Mod. 24; Hopper v. Reeve, 7 Taunt. 698; Spear v. Chapman, 8 Ir. L. R. 461; Reynolds v. Pierson, 29 Ind. App. 273; Burdick v. Worrall, 4 Barb. 596 (semble); Bull v. Colton, 22 Barb. 94; Clark v. Downing, 55 Vt. 259 Accord. But see Kirland v. State, 43 Ind. 146.

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

[20]. The statement of the pleadings and the arguments of counsel are omitted.

[21]. Berry v. Da Costa, L. R. 1 C. P. 331; Collins v. Mack, 31 Ark. 684; Hattin v. Chapman, 46 Conn. 607; Graves v. Rivers, 123 Ga. 224; Tubbs v. Van Kleek, 12 Ill. 446; Tyler v. Salley, 82 Me. 128; Sauer v. Schulenberg, 33 Md. 288; Sherman v. Rawson, 102 Mass. 395; Kelley v. Riley, 106 Mass. 339; Bennett v. Beam, 42 Mich. 346; Schmidt v. Durnham, 46 Minn. 227; Green v. Spencer, 3 Mo. 318; Musselman v. Barker, 26 Neb. 737; Coil v. Wallace, 24 N. J. Law, 291; Kniffen v. McConnell, 30 N. Y. 285; Spellings v. Parks, 104 Tenn. 351; Daggett v. Wallace, 75 Tex. 352; Giese v. Schultz, 69 Wis. 521 Accord.

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

[22]. But see 4 Blackstone, Commentaries, 65; 1 Bishop, New Criminal Law, § 38.

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

An action is allowed by statute in some jurisdictions. Marshall v. Taylor, 98 Cal. 55; Swett v. Gray, 141 Cal. 83; McIlvain v. Emery, 88 Ind. 298; Verwers v. Carpenter, 166 Ia. 273; Watson v. Watson, 49 Mich. 540; Hood v. Sudderth, 111 N. C. 215; Breon v. Henkle, 14 Or. 494. The Scotch law is to the same effect. Smith, Law of Damages in Scotland, 128. Under these statutes it has been held that there must be a real seduction: “Consent must be procured by some trick or artifice other than mere solicitation.” Brown v. Kingsley, 38 Ia. 220. Compare Breon v. Henkle, 14 Or. 494.

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

[24]. Boulter v. Clarke, Bull. N. P. 16; Reg. v. Coney, 8 Q. B. D. 534, 538, 546, 549, 567; Logan v. Austin, 1 Stewart (Ala.) 476; Cadwell v. Farrell, 28 Ill. 438; Adams v. Waggoner, 33 Ind. 531; Lund v. Tyler, 115 Ia. 236; McNeil v. Mullin, 70 Kan. 634; Galbraith v. Fleming, 60 Mich. 403; Grotton v. Glidden, 84 Me. 589; Commonwealth v. Colburg, 119 Mass. 350 (semble); Lizana v. Lang. 90 Miss. 469; Jones v. Gale, 22 Mo. App. 637; Morris v. Miller, 83 Neb. 218; Stout v. Wren, 1 Hawks (N. C.), 420; Barholt v. Wright, 45 Ohio St. 177 (explaining Champer v. State, 14 Ohio St. 437); McCue v. Klein, 60 Tex. 168 (semble); Willey v. Carpenter, 64 Vt. 212; Shay v. Thompson, 59 Wis. 540; Miller v. Bayer, 94 Wis. 124 (procuring an abortion with plaintiff’s consent) Accord.

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

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

[25]. McNay v. Stratton, 9 Ill. App. 215; Price v. Bailey, 66 Ill. 48; Hildebrand v. McCrum, 101 Ind. 61; Smith v. State, 7 Humph. 43; Sorenson v. Dundas, 50 Wis. 335 Accord.

Compare Marshall v. Heller, 55 Wis. 392. For recent definitions see Westberry v. Clanton, 136 Ga. 795; Coolahan v. Marshall Field & Co., 159 Ill. App. 466; Efroymson v. Smith, 29 Ind. App. 451; Comer v. Knowles, 17 Kan. 436; New York R. Co. v. Waldron, 116 Md. 441; Smith v. Clark, 37 Utah, 116, 126.

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

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

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

To hold a man by the sleeve without professing to arrest him or leading him to believe he is not free to get away is not an imprisonment. Macintosh v. Cohen, 24 N. Zeal. L. R. 625.

[29]. Part of the case, not relating to imprisonment, has been omitted.

[30]. Johnson v. Tompkins, Baldw. C. C. 571, 601; Collins v. Fowler, 10 Ala. 858; Courtoy v. Dozier, 20 Ga. 369; Hawk v. Ridgway, 33 Ill. 473; Brushaber v. Stegemann, 22 Mich. 266; Josselyn v. McAllister, 25 Mich. 45; Moore v. Thompson, 92 Mich. 498; Ahern v. Collins, 39 Mo. 145; Strout v. Gooch, 8 Greenl. 126; Mowry v. Chase, 100 Mass. 79; Emery v. Chesley, 18 N. H. 198; Browning v. Rittenhouse, 40 N. J. Law, 230; Hebrew v. Pulis, 73 N. J. Law, 621; Gold v. Bissell, 1 Wend. 210; Van Voorhees v. Leonard, 1 Thomp. & C. 148; Searls v. Viets, 2 Thomp. & C. 224; Limbeck v. Gerry, 15 Misc. 663; Martin v. Houck, 141 N. C. 317; Huntington v. Shultz, Harp. 452; Mead v. Young, 2 Dev. & Batt. 521; Haskins v. Young, 2 Dev. & Batt. 527; Jones v. Jones, 13 Ired. 448; McCracken v. Ansley, 4 Strob. 1; Gunderson v. Struebing, 125 Wis. 173 Accord.

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

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

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

[31]. A portion of the case, relating to damages, is omitted.

[32]. As to “shadowing” by detectives, see Chappell v. Stewart, 82 Md. 323; People v. Weiler, 179 N. Y. 46; Schultz v. Ins. Co., 151 Wis. 537.

[33]. Stat. 13 Ed. I. c. 48.

[34]. The concurring opinions of Williams and Patteson, JJ., are omitted.

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

See Hawk v. Ridgway, 33 Ill. 473; Cullen v. Dickenson, 33 S. D. 27.

To order one to leave a boat which was moored to a wharf and, upon his refusal, to set the boat adrift is an imprisonment. Queen v. Macquarie, 13 N. S. W. Sup. Ct. R. (Law) 264.

Compare Herd v. Weardale Steel Co. [1913] 3 K. B. 771; Robinson v. Ferry Co. [1910] A. C. 295; Whittaker v. Sanford, 110 Me. 77; Talcott v. National Exhibition Co., 144 App. Div. 337.

[36]. Gates v. Miles, 3 Conn. 64, 70; McIntyre v. Sholty, 121 Ill. 660; Amick v. O’Hara, 6 Blackf. 258, 259; Cross v. Kent, 32 Md. 581; Feld v. Borodófski, 87 Miss. 727; Bullock v. Babcock, 3 Wend. 391; Krom v. Schoonmaker, 3 Barb. 647. (imprisonment); Ward v. Conatser, 4 Baxt. (Tenn.) 64; Brennan v. Donaghey, 19 N. Zeal. Gaz. L. R. 289, affirming s. c. 2 New Zeal. Gaz. L. R. 410 Accord.

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

A lunatic has been held liable under a statute giving an action to the widow and children of one killed by the “careless, wanton, or malicious” use of firearms. Young v. Young, 141 Ky. 76.

In McIntyre v. Sholty, supra, Magruder, J., said, p. 664: “It is well settled that, though a lunatic is not punishable criminally, he is liable in a civil action for any tort he may commit. However justly this doctrine may have been originally subject to criticism on the grounds of reason and principle, it is now too firmly supported by the weight of authority to be disturbed. It is the outcome of the principle, that, in trespass, the intent is not conclusive. Mr. Sedgwick, in his work on Damages (margin, p. 456), says that, on principle, a lunatic should not be held liable for his tortious acts. Opposed to this view, however, is a majority of the decisions and text writers.”

“So long as the primitive notion prevailed that the doer of harm was absolutely responsible therefor, the insanity of the doer could afford no defence, either to a criminal prosecution or a civil action. 7 Harv. L. Rev. 446. When this notion was so far modified that misadventure or accident on the part of the doer became a defence, it would have been entirely logical for the courts to treat the acts or the omissions of lunatics as involuntary, and consequently not tortious but accidental.” Burdick, Torts (2d ed.), 60. See also Ames, Law and Morals, 22 Harv. L. Rev. 97, 99–100; Hornblower, Insanity and the Law of Negligence, 5 Col. L. Rev. 278.

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

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

[37]. Underwood v. Hewson, 1 Stra. 596; Welch v. Durand, 36 Conn. 182; Atchison v. Dullam, 16 Ill. App. 42; Hodges v. Weltberger, 6 Monr. (Ky.) 337; Louisville R. Co. v. Sweeney, 157 Ky. 620; Chataigne v. Bergeron, 10 La. An. 699; Sullivan v. Murphy, 2 Miles (Pa.) 298; Castle v. Duryee, 2 Keyes, 169; Taylor v. Rainbow, 2 Hen. & Mun. 423 Accord.

See to the same effect Morgan v. Cox, 22 Mo. 373; Dygert v. Bradley, 8 Wend. 469; Jennings v. Fundeburg, 4 McC. 161; Tally v. Ayres, 3 Sneed, 677 (the injury to chattels); Wetzel v. Satterwhite, (Tex. Civ. App.) 125 S. W. 93 (injury to property); Wright v. Clark, 50 Vt. 130. Compare Osborne v. Van Dyke, 113 Ia. 557.

[38]. Nitro-Glycerine Case, 15 Wall. 524, 538 (semble); Morris v. Platt, 32 Conn. 75, 84–90 (defendant in defending himself lawfully against A. fired a pistol at A., but accidentally hit the plaintiff); Paxton v. Boyer, 67 Ill. 132 (facts similar to those in Morris v. Platt, supra); Crabtree v. Dawson, 119 Ky. 148 Accord.

[39]. Only the opinion of the court is given.

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

But one who by blasting throws rocks upon the plaintiff’s land is liable in trespass quare clausum fregit, irrespective of negligence. Central Co. v. Vandenheuk, 147 Ala. 546; Bessemer Co. v. Doak, 152 Ala. 166; Sloss Co. v. Salser, 158 Ala. 511; Birmingham Co. v. Grover, 159 Ala. 276; Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 163; St. Peter v. Denison, 58 N. Y. 416; Sullivan v. Dunham, 161 N. Y. 290; Holland House v. Baird, 169 N. Y. 136, 140. And the same rule has been applied to trespass to the person by blasting. Sullivan v. Dunham, 161 N. Y. 290; Turner v. Degnon Co., 99 App. Div. 135.

[41]. Only so much of the report is given as relates to the first count.

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

[43]. Brunsden v. Humphrey, 14 Q. B. D. 141, 150 (semble); Vogrin v. American Steel Co., 179 Ill. App. 245; Muncie Pulp Co. v. Davis, 162 Ind. 558; Foster v. County, 63 Kan. 43; Stepp v. Chicago R. Co., 85 Mo. 229; Commercial Bank v. Ten Eyck, 48 N. Y. 305; McCaffrey v. Twenty-Third St. R. Co., 47 Hun, 404; Washington v. Baltimore R. Co., 17 W. Va. 190 Accord.

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

[44]. Statement condensed. Only part of opinion is given.

[45]. Carlisle Banking Co. v. Bragg, [1911] 1 K. B. 489; Jackson v. Metropolitan R. Co., 2 C. P. D. 125; Steel Car Co. v. Chec, 184 Fed. 868; Louisville R. Co. v. Pearce, 142 Ala. 680; Florida R. Co. v. Williams, 37 Fla. 406; Perry v. Central R., 66 Ga. 746; Cleveland R. Co. v. Lindsay, 109 Ill. App. 533; City v. Martin, 74 Ind. 449; Hart v. Brick Co., 154 Ia. 741; Goins v. North Coal Co., 140 Ky. 323; County v. Collison, 122 Md. 91; Tutein v. Hurley, 98 Mass. 211; McNally v. Colwell, 91 Mich. 527; Harlan v. St. Louis R. Co., 65 Mo. 22; Wallace v. Chicago R. Co., 48 Mont. 427; Brotherton v. Manhattan Beach Co., 48 Neb. 563; Koch v. Fox, 71 App. Div. 288; Alexander v. City, 165 N. C. 527; St. Louis R. Co. v. Hess, 34 Okl. 615; Thubron v. Dravo Co., 238 Pa. St. 443; Anderson v. Southern R. Co., 70 S. C. 490; Newton v. Oregon R. Co., 43 Utah, 219; Sowles v. Moore, 65 Vt. 322; Schwartz v. Shull, 45 W. Va. 405; Klatt v. Foster, 92 Wis. 622 Accord.

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

[47]. Western Co. v. Wood, 57 Fed. 471; Kyle v. Chicago R. Co., 182 Fed. 613; McCray v. Sharpe, 188 Ala. 375; Bachelder v. Morgan, 179 Ala. 339; St. Louis Co. v. Taylor, 84 Ark. 42; Chicago Co. v. Moss, 89 Ark. 187; Green v. Southern R. Co., 9 Ga. App. 751; Haas v. Metz, 78 Ill. App. 46; Kalen v. Terre Haute Co., 18 Ind. App. 202; Zabron v. Cunard Co., 151 Ia. 345; Kentucky Traction Co. v. Bain, 161 Ky. 44; Wyman v. Leavitt, 71 Me. 227; Wilson v. St. Louis R. Co., 160 Mo. App. 649; Arthur v. Henry, 157 N. C. 438; Samarra v. Allegheny Co., 238 Pa. St. 469; Folk v. Seaboard Co., 99 S. C. 284; Chesapeake R. Co. v. Tinsley, 116 Va. 600; Gulf Co. v. Trott, 86 Tex. 412 Accord.

[48]. “Ordinary street cars must be run with reference to ordinary susceptibilities, and the liability of their proprietors cannot be increased simply by a passenger’s notifying the conductor that he has unstable nerves.” Holmes J., in Spade v. Lynn R. Co., 172 Mass. 488, 491. But compare Webber v. Old Colony R. Co., 210 Mass. 432.

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

The damages for an admitted tort to the person may be enhanced by proof of nervous shock caused by fright induced by the defendant’s misconduct. Eagan v. Middlesex R. Co., 212 Fed. 562, 214 Fed. 747; Birmingham Co. v. Martini, 2 Ala. App. 653; Melone v. Sierra Co., 151 Cal. 113; Seger v. Barkhamsted, 22 Conn. 290; Masters v. Warren, 27 Conn. 293; Garvey v. Metropolitan R. Co., 155 Ill. App. 601; Pittsburgh Co. v. Sponier, 85 Ind. 165; McClintic v. Eckman, 153 Ky. 704; Newport Co. v. Gholson, 10 Ky. L. Rep. 938; City Co. v. Robinson, 12 Ky. L. Rep. 555; Green v. Shoemaker, 111 Md. 69; Warren v. Boston Co., 163 Mass. 484; Homans v. Boston Co., 180 Mass. 456; Cameron v. N. E. Co., 182 Mass. 310; Driscoll v. Gaffey, 207 Mass. 102; Conley v. United Drug Co., 218 Mass. 238; Smith v. St. Paul Co., 30 Minn. 169; Hollingshed v. Yazoo R. Co., 99 Miss. 464; Butts v. Nat. Bank, 99 Mo. App. 168; Breen v. St. Louis Co., 102 Mo. App. 479; Heiberger v. Missouri Tel. Co., 133 Mo. App. 452; Lowe v. Metropolitan R. Co., 145 Mo. App. 248; Buchanan v. West Co., 52 N. J. Law, 265; Consol. Co. v. Lambertson, 59 N. J. Law, 297; Stokes v. Schlacter, 66 N. J. Law, 334; Porter v. Del. Co., 73 N. J. Law, 405; Kennell v. Gershonovitz, 84 N. J. Law, 577; O’Flaherty v. Nassau Co., 34 App. Div. 74 (affirmed 165 N. Y. 624); Cohn v. Ansonia Co., 162 App. Div. 791; Pa. Co. v. Graham, 63 Pa. St. 290; Scott v. Montgomery, 95 Pa. St. 444; Ewing v. Pittsburgh Co., 147 Pa. St. 40 (semble); Linn v. Duquesne Co., 204 Pa. St. 551 (semble); Samarra v. Allegheny R. Co., 238 Pa. St. 469; Folk v. Seaboard Co., 99 S. C. 284; Godeau v. Blood, 52 Vt. 251; Nordgren v. Lawrence, 74 Wash. 305; Shutz v. Chicago Co., 73 Wis. 147; and even though the admitted tort is only an assault as distinguished from a battery. Kline v. Kline, 158 Ind. 602; Williams v. Underhill, 63 App. Div. 223; Leach v. Leach, 11 Tex. Civ. App. 699. It must be shown that there was causal connection between the fright and the shock. Hack v. Dady, 142 App. Div. 510.

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

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

[50]. Portions of the statement of facts have been omitted.

[51]. See to the same effect Phillips v. Dickerson, 85 Ill. 11; Cleveland Co. v. Stewart, 24 Ind. App. 374; Gaskins v. Runkle, 25 Ind. App. 584; Mahoney v. Dankwart, 108 Ia. 321; McGee v. Vanover, 148 Ky. 737; Chesapeake R. Co. v. Robinett, 151 Ky. 778; Sperier v. Ott, 116 La. 1087; Renner v. Canfield, 36 Minn. 90; Bucknam v. Great Northern R. Co., 76 Minn. 373; Sanderson v. Great Northern R. Co., 88 Minn. 162; Hutchinson v. Stern, 115 App. Div. 791; Gosa v. Southern Ry., 67 S. C. 347; Gulf R. Co. v. Overton, 101 Tex. 583 (but compare Gulf R. Co. v. Coopwood, 16 Tex. Ct. Rep. 354); Taylor v. Spokane R. Co., 72 Wash. 378, rev’g 67 Wash. 96.

[52]. Pullman Co. v. Lutz, 154 Ala. 517; Spearman v. McCrary, 4 Ala. App. 473; Sloane v. So. Co., 111 Cal. 668; Watson v. Dilts, 116 Ia. 249; Cowan v. Tel. Co., 122 Ia. 379, 382 (semble); Purcell v. St. Paul Co., 48 Minn. 134, 138; Lesch v. Great Northern R. Co., 97 Minn. 503; Watkins v. Kaolin Co., 131 N. C. 536; Taber v. Seaboard Co., 81 S. C. 317; Simone v. R. I. Co., 28 R. I. 186; Mack v. South Co., 52 S. C. 323; Hill v. Kimball, 76 Tex. 210; Gulf Co. v. Hayter, 93 Tex. 239; Yoakum v. Kroeger, (Tex. Civ. App.) 27 S. W. 953; St. Louis Co. v. Murdock, 54 Tex. Civ. App. 249; Pankopf v. Hinkley, 141 Wis. 146; Fitzpatrick v. Gr. W. Co., 12 Up. Can. Q. B. 645; Bell v. Great Northern R. Co., 26 L. R. Ir. 428; Cooper v. Caledonia Co. (Court of Sess., June 14, 1902), 4. F. 880 Accord.

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

Mental Anguish caused by Negligence in Transmission of Telegrams. In a few states the addressee is allowed to recover damages for mental anguish resulting from the negligent failure of a telegraph company to make seasonable delivery of a message. Mentzer v. Western Co., 93 Ia. 752; Cowan v. Western Co., 122 Ia. 379; Hurlburt v. Western Co., 123 Ia. 295; Chapman v. Western Co., 90 Ky. 265; Western Co. v. Van Cleave, 107 Ky. 464; Western Co. v. Fisher, 107 Ky. 513; Graham v. Western Co., 109 La. 1069; Barnes v. Western Co., 27 Nev. 438 (semble); Thompson v. Western Co., 106 N. C. 549; Young v. Western Co., 107 N. C. 370; Bryan v. Western Co., 133 N. C. 603; Woods v. Western Co., 148 N. C. 1; Hellams v. Western Co., 70 S. C. 83 (statutory); Capers v. Western Co., 71 S. C. 29; Wadsworth v. Western Co., 86 Tenn. 695; Railroad v. Griffin, 92 Tenn. 694; So Relle v. Western Co., 55 Tex. 308; Stuart v. Western Co., 66 Tex. 580; Western Co. v. Beringer, 84 Tex. 38.

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

[53]. Only the judgment of the court is printed.

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

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

[55]. The opinion of Cozens-Hardy, M.R., sustaining the award is omitted.

[56]. “On principle, the distinction between cases of physical impact or lesion being necessary as a ground of liability for damage caused seems to have nothing in its favour—always on the footing that the causal connection between the injury and the occurrence is established. If compensation is to be recovered under the statute or at common law in respect of an occurrence which has caused dislocation of a limb, on what principle can it be denied if the same occurrence has caused unhinging of the mind? The personal injury in the latter case may be infinitely graver than in the former, and to what avail—in the incidence of justice, or the principle of law—is it to say that there is a distinction between things physical and mental? This is the broadest difference of all, and it carries with it no principle of legal distinction. Indeed it may be suggested that the proposition that injury so produced to the mind is unaccompanied by physical affection or change might itself be met by modern physiology or pathology with instant challenge.” Lord Shaw in Coyle v. Watson, [1915] A. C. 1, 14.

[57]. Statement abridged.

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

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

Also it is erroneous to charge the jury that failure to exercise the care of “an ordinary man under like circumstances” or of “a person under similar circumstances” or “just such as one of you, similarly employed, would have exercised under like circumstances” amounts to negligence. Austin R. Co. v. Beatty, 73 Tex. 592; St. Louis R. Co. v. Finley, 79 Tex. 85; Louisville R. Co. v. Gower, 85 Tenn. 465.

[59]. “See Lambert v. Bessey, T. Raym. 422; Scott v. Shepherd, 3 Wils. 403. Probably an action of trespass might have been brought.” [Reporter’s note.]

[60]. Nitro-Glycerine Case, 15 Wall. 524; Thompson v. Chicago R. Co., 189 Fed. 723; Fort Smith Co. v. Slover, 58 Ark. 168; Richardson v. Kier, 34 Cal. 63; Nolan v. New York R. Co., 53 Conn. 461; Wolf Mfg. Co. v. Wilson, 152 Ill. 9; Cincinnati R. Co. v. Peters, 80 Ind. 168; Galloway v. Chicago R. Co., 87 Ia. 458; Schneider v. Little, 184 Mich. 315; Lauritsen v. Bridge Co., 87 Minn. 518; McGraw v. Chicago R. Co., 59 Neb. 397; Roberts v. Boston R. Co., 69 N. H. 354; Drake v. Mount, 33 N. J. Law, 441; Chicago R. Co. v. Watson, 36 Okl. 1; Ahern v. Oregon Co., 24 Or. 276; Houston R. Co. v. Alexander, 103 Tex. 594; Washington v. Baltimore R. Co., 17 W. Va. 190 Accord.

[61]. Sharp v. Powell, L. R. 7. C. P. 253; Pearson v. Cox, 2 C. P. D. 369; Gregg v. Illinois R. Co., 147 Ill. 550, 560; Missouri R. Co. v. Columbia, 65 Kan. 390, 400; Sutphen v. Hedden, 67 N. J. Law, 324; Crutchfield v. Richmond R. Co., 76 N. C. 320; Martin v. Highland Park Co., 128 N. C. 264; Simpson v. Southern R. Co., 154 N. C. 51; McCauley v. Logan, 152 Pa. St. 202; Bradley v. Lake Shore R. Co., 238 Pa. St. 315 (“only an extreme visionary would have imagined the consequences which followed or that injury could result to person or property therefrom”); Consumers Brewing Co. v. Doyle, 102 Va. 399; Lippert v. Brewing Co., 141 Wis. 453 Accord.

[62]. Only that part of the opinion which relates to this instruction is given.

[63]. “There is no absolute or intrinsic negligence; it is always relative to some circumstances of time, place, or person.” Bramwell, B., in Degg v. Midland R. Co., 1 Hurlst. & N. 773, 781. See also Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694.

Bizzell v. Booker, 16 Ark. 308; Needham v. San Francisco R. Co., 37 Cal. 409; Diamond Iron Co. v. Giles, 7 Houst. 557; Atlantic R. Co. v. Moore, 8 Ga. App. 185; Chicago R. Co. v. Johnson, 103 Ill. 512; Parks v. Yost, 93 Kan. 334; Sheridan v. Baltimore R. Co., 101 Md. 50; Kelly v. Michigan R. Co., 65 Mich. 186; De Bolt v. Kansas City R. Co., 123 Mo. 496; Garland v. Boston R. Co., 76 N. H. 556; New Jersey Exp. Co. v. Nichols, 33 N. J. Law, 434; McGuire v. Spence, 91 N. Y. 303; Connell v. New York R. Co., 144 App. Div. 664; Anderson v. Atlantic R. Co., 161 N. C. 462; Elster v. Springfield, 49 Ohio St. 82; Frankford Co. v. Philadelphia R. Co., 54 Pa. St. 345; Virginia Power Co. v. Smith, 117 Va. 418; Morrison v. Power Co., 75 W. Va. 608; Davis v. Chicago R. Co., 58 Wis. 646 Accord.

Hence it is incorrect to define ordinary care as “such care as the ordinary person uses in the transaction of the ordinary affairs of life.” Hennesey v. Chicago R. Co., 99 Wis. 109.

[64]. Only part of the opinion is given.

[65]. Rosenthal v. Chicago R. Co., 255 Ill. 552; Indianapolis Traction Co. v. Crawley, 51 Ind. App. 357 (deaf man); O’Flaherty v. Union R. Co., 45 Mo. 70; Simms v. South Carolina R. Co., 27 S. C. 268. Accord.

[66]. Statement abridged. Part of opinion omitted.

[67]. The instruction which the court held should have been given in Winn v. Lowell was: “If the plaintiff was a person of poor sight, common prudence required of her greater care in walking upon the streets, and avoiding obstructions, than is required of persons of good sight.”

[68]. Compare Fenneman v. Holden, 75 Md. 1; Karl v. Juniata, 206 Pa. St. 633; Thompson v. Salt Lake Co., 16 Utah 281.

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

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

In Wilson v. Brett, supra, Rolfe, B., said: “I could see no difference between negligence and gross negligence—... it was the same thing with the addition of a vituperative epithet.”

[71]. Maryland R. Co. v. Tucker, 115 Md. 43; Cates v. Hall, 171 N. C. 360; Lundy v. Southern Tel. Co., 90 S. C. 25 Accord.

See various forms of stating this general doctrine in 2 Hutchinson on Carriers, (3d. ed.) §§ 895, 896; 4 Elliott on Railroads (1st ed.) § 1585; 1 Shearman & Redfield on Negligence (6th ed.) § 51.

In Wharton on Negligence (1st ed.) §§ 636, 637, the author says that the diligence should be “that which a good carrier of the particular grade is accustomed to exert;” i. e., “the diligence and skill which a good business man in his specialty is accustomed to use under similar circumstances.”

For a criticism of Wharton’s statement, see 1 S. & R. Negl. (6th ed.) §§ 43–50. And compare 2 Hutchinson on Carriers (3d ed.) § 897, note 13.

“It is reasonable care under the existing circumstances that one person has the right to require of another; and that degree of care becomes increased with any increase of the apparent danger involved in its absence or with the increased power of control of one of the parties whose conduct is in question.... A common carrier of passengers either by rail or by water has so complete a control and the consequences of negligence on his part may be so serious that he is justly held to a very high degree of care for their safety; and accordingly it has been often said, both in this and in other jurisdictions, that he is held to the exercise of the highest degree of care. But as was pointed out in Dodge v. Boston & Bangor Steamship Co., 148 Mass. 207, 217, 218, this phrase and similar words which have been used to convey the same idea mean simply that the carrier is bound to use the utmost care consistent with the nature of his undertaking and with a due regard for all other matters that ought to be considered in conducting the business. This conductor was not bound absolutely to exercise the highest degree of care in running his car, but only the highest degree of care which was consistent with the practical performance of all his duties in seeing that the car was run safely without unreasonable delays, and so as to provide for the safety and convenience and properly rapid transit of his passengers. What was required of him was the highest degree of care consistent with the practical management and operation of his car for the carriage of passengers, ‘or in other words, the requirement [was] reasonable care according to the nature of the contract’ with the passengers.” Sheldon, J., in Gardner v. Boston R. Co., 204 Mass. 213, 216. Compare Campbell, J., in Michigan R. Co. v. Coleman, 28 Mich. 440, 449.

[72]. Only so much of the case is given as relates to a single point.

[73]. “Due care,” “reasonable care,” and “ordinary care” are synonymous terms. Neal v. Gillett, 23 Conn. 437; Baltimore R. Co. v. Faith, 175 Ill. 58; Raymond v. Portland R. Co., 100 Me. 529; Durant v. Palmer, 29 N. J. Law, 544.

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

[75]. “The rule, that due diligence is such attention and effort applied to a given case as the ordinary prudent man would put forth under the same circumstances, seems to meet the demands of every conceivable case.... The ratio of diligence to circumstances being thus fixed, the two extremes may change to an infinite extent without destroying the ratio, and without giving rise to what we term negligence. The bailee who undertakes the carriage of stone for the paving of a street is held to the rule that he must use such attention and effort as the ordinary prudent man would use under like circumstances.”

“The bailee, who undertakes to repair a delicate watch, is held to the rule that he must use such attention and effort as the ordinary prudent man would use under the same circumstances. The contract of the watchmaker is the same, relatively, as that of the hod-carrier. Each contracts to provide the reasonable ordinary skill and attention which a man in his position would exercise under like circumstances. The ratio, proportion, or correspondence of diligence to circumstances, of care to surroundings, is fixed and identical. And in determining a question of diligence or negligence in either case, it would be only necessary to apply the same rule to varying circumstances and persons, to demand the same ratio between varying extremes. And it is not too much to assert that all the perplexity and misunderstanding on the subject of diligence and negligence are due to the habit of confounding the specific acts and circumstances, which must always vary, with the ratio or relation between them, which remains always the same. It is true that there may be different ratios of effort and attention to the circumstances and to the results desired. A man may contract to furnish the highest skill, the most perfect means and appliances, the most assiduous attention in the accomplishment of a specific end. But, when an individual so contracts, there is the element of special or positive intention introduced, which takes the case out of the category of diligence, and renders such a contract a special and extraordinary one. The law never requires such a special, positive intention....” 6 Albany Law Journ. 313, 314.

[76]. Arguments omitted.

[77]. A fuller statement of the views of the learned judge may be found in the extracts, which follow, from his work on Bailments:

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

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

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

“Section 17. Having, then, arrived at the three degrees of diligence, we are naturally led to those of negligence, which correspond thereto; for negligence may be ordinary, or less than ordinary, or more than ordinary. Ordinary negligence may be defined to be the want of ordinary diligence, and slight negligence to be the want of great diligence, and gross negligence to be the want of slight diligence. For he who is only less diligent than very careful men cannot be said to be more than slightly inattentive; he who omits ordinary care is a little more negligent than men ordinarily are; and he who omits even slight diligence fails in the lowest degree of prudence, and is deemed grossly negligent....” Story on Bailments (8th ed.), §§ 11, 16, 17.

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

“The theory that there are three degrees of negligence described by the terms slight, ordinary, and gross, has been introduced into the common law from some of the commentators on the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation. In Storer v. Gowen, 18 Maine, 177, the Supreme Court of Maine says: ‘How much care will, in a given case, relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending on a great variety of circumstances which the law cannot exactly define.’ Mr. Justice Story, Bailments, § 11, says: ‘Indeed, what is common or ordinary diligence is more a matter of fact than of law.’ If the law furnishes no definition of the terms gross negligence, or ordinary negligence, which can be applied in practice, but leaves it to the jury to determine, in each case, what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.

“Recently, the judges of several courts have expressed their disapprobation of these attempts to fix the degrees of diligence by legal definitions, and have complained of the impracticability of applying them. Wilson v. Brett, 11 Meeson and Wels. 113; Wyld v. Pickford, 8 ibid. 443, 461, 462; Hinton v. Dibbin, 2 Q. B. 646, 651. It must be confessed that the difficulty in defining gross negligence, which is apparent in perusing such cases as Tracy et al. v. Wood, 3 Mason 132, and Foster v. The Essex Bank, 17 Mass. 479, would alone be sufficient to justify these complaints. It may be added that some of the ablest commentators on the Roman law, and on the civil code of France have wholly repudiated this theory of three degrees of diligence, as unfounded in principles of natural justice, useless in practice, and presenting inextricable embarrassments and difficulties. See Toullier’s Droit Civil, 6th vol., p. 239, etc.; 11th vol., p. 203, etc.; Makeldey, Man. Du Droit Romain, 191.” Curtis, J., in Steamboat v. King, 16 How. 469, 474 (injury to gratuitous passenger).

“Confusion has arisen from regarding negligence as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use. A bailee is only bound to use the ordinary care of a man, and so the absence of it is called gross negligence. A person who undertakes to do some work for reward to an article must exercise the care of a skilled workman, and the absence of such care in him is negligence. Gross, therefore, is a word of description, and not a definition; and it would have been only introducing a source of confusion to use the expression gross negligence, instead of the equivalent, a want of due care and skill in navigating the vessel, which was again and again used by the Lord Chief Justice in his summing up.” Willes, J., in Grill v. General Collier Co., L. R. 1 C. P. 600.

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

[78]. Statement rewritten. Only part of case is given.

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

[80]. Compare Martin v. Boston R. Co., 205 Mass. 16; Devine v. New York R. Co., 205 Mass. 416.

[81]. For other cases of statutory degrees of negligence, see Seaboard R. Co. v. Cauthen, 115 Ga. 422; Louisville R. Co. v. Long, 94 Ky. 410; Western Tel. Co. v. Reeves, 34 Okl. 468; Davis v. Railroad Co., 63 S. C. 370. That the wanton and reckless disregard of consequences which makes a defendant liable at common law to a plaintiff not in the exercise of due care is something more than negligence gross in degree, see Birmingham R. Co. v. Pinckard, 124 Ala. 372; Denman v. Johnston, 85 Mich. 387; Banks v. Braman, 188 Mass. 367; Southern Mfg. Co. v. Bradley, 52 Tex. 587; Barlow v. Foster, 149 Wis. 613.

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

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

[84]. Smith v. Pittsburgh R. Co., 90 Fed. 783; Warble v. Sulzberger, 185 Ala. 603; Denver Tramway Co. v. Nicholas, 35 Col. 462; Rohloff v. Fair Haven R. Co., 76 Conn. 689; Goldstein v. People’s R. Co., 5 Pennewill, 306; Elwood R. Co. v. Ross, 26 Ind. App. 258; Wyman v. Berry, 106 Me. 43; Munn v. Reed, 4 All. 431; Rasmussen v. Whipple, 211 Mass. 546 (but see Angelary v. Springfield R. Co., 213 Mass. 110); Lucarelli v. Boston R. Co., 213 Mass. 454; Strudgeon v. Village, 107 Mich. 496; Consolidated Traction Co. v. Scott, 58 N. J. Law, 682; Swift v. Staten Island R. Co., 123 N. Y. 645; Laferty v. Third Ave. R. Co., 176 N. Y. 594; Lake Erie R. Co. v. Mackey, 53 Ohio St. 370; Box & Label Co. v. Caine, 11 Ohio Cir. Ct. R. N. S. 81 (Aff’d 78 Ohio St. 405); Dubiver v. City R. Co., 44 Or. 227; Rachmel v. Clark, 205 Pa. St. 314; Parker v. Washington R. Co., 207 Pa. St. 438 (but compare Mulligan v. Burrough, 243 Pa. St. 361); Texas R. Co. v. Phillips, 91 Tex. 278; Christensen v. Oregon R. Co., 29 Utah, 192; Blankenship v. Chesapeake R. Co., 94 Va. 449; Deputy v. Kimmell, 73 W. Va. 595 Accord.

Children are seldom made defendants in actions for negligence. Most of the discussions as to the standard of care required of children are to be found in cases where the children, or their parents or representatives, were plaintiffs seeking to recover for damage to the children alleged to be caused by defendant’s negligence, and where the defendant contended that the action was barred by the contributory negligence of the child. A good discussion where defendant was an infant may be found in Briese v. Maechtle, 146 Wis. 89.

[85]. Arguments and part of opinion omitted.

[86]. Northern R. Co. v. Heaton, 191 Fed. 24; Little Rock Traction Co. v. Nelson, 66 Ark. 494 (boy ten years old); Quincy Gas Co. v. Bauman, 203 Ill. 295, 104 Ill. App. 600 (seven); Fishburn v. Burlington R. Co., 127 Ia. 483 (six); Kentucky Hotel Co. v. Camp, 97 Ky. 424 (seven); McMahon v. Northern R. Co., 39 Md. 438 (six); Purcell v. Boston R. Co., 211 Mass. 79; Giaccobe v. Boston R. Co., 215 Mass. 224 (seven); Godfrey v. Boston R. Co., 215 Mass. 432 (six); Weitzel v. Detroit R. Co., 186 Mich. 7 (nine); Ritscher v. Orange R. Co., 79 N. J. Law, 462 (six); Verdon v. Automobile Co., 80 N. J. Law, 199 (seven); Citizen’s R. Co. v. Bell, 26 Ohio Cir. Ct. R. 691 (seven); Galveston R. Co. v. Moore, 59 Tex. 64 (six); Robinson v. Cone, 22 Vt. 213 (three); McVoy v. Oakes, 91 Wis. 214 (seven); Frasers v. Tramways Co., 20 Sc. L. R. 192 (six); Plantza v. Glasgow, 47 Sc. L. R. 688 (five) Accord.

A few jurisdictions have an absolute rule as to children under seven. Government R. Co. v. Hanlon, 53 Ala. 70; Chicago R. Co. v. Tuohy, 196 Ill. 410; Reichle v. Transit Co., 241 Pa. St. 1 (six); Schnurr v. Traction Co., 153 Pa. St. 29; Dodd v. Gas Co., 95 S. C. 9. Also several jurisdictions rely on presumptions as to children between seven and fourteen (or sometimes twelve). Birmingham R. Co. v. Jones, 146 Ala. 277; City v. McLain, 67 Miss. 4; Hebert v. Hudson Electric Co., 136 App. Div. 107; Rolin v. Tobacco Co., 141 N. C. 300; Dowlen v. Texas Power Co., (Tex. Civ. App.) 174 S. W. 674; City v. Shull, 97 Va. 419; Traction Co. v. Wilkinson, 101 Va. 394. See also (as to children over fourteen) Central R. Co. v. Phillips, 91 Ga. 526; Frauenthal v. Laclede Gas Co., 67 Mo. App. 1; Murphy v. Perlstein, 73 App. Div. 256; Travers v. Hartmann, 5 Boyce, 302.

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

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

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

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

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

[88]. Garrison v. St. Louis R. Co., 92 Ark. 437; De Soto Co. v. Hill, 179 Ala. 186 (personal standard applied to a boy brighter than his age); Jollimore v. Connecticut Co., 86 Conn. 314; Herrington v. City, 125 Ga. 58; Elk Mills v. Grant, 140 Ga. 727; Keller v. Gaskill, 9 Ind. App. 670; Cole v. Searfoss, 49 Ind. App. 334; Louisville R. Co. v. Allnutt, 150 Ky. 831; Van Natta v. Peoples R. Co., 133 Mo. 13; Spillane v. Missouri R. Co., 135 Mo. 414; Moeller v. United R. Co., 242 Mo. 721; David v. West Jersey R. Co., 84 N. J. Law, 685; Marius v. Motor Co., 146 App. Div. 608; Gigoux v. County, 73 Or. 212; Bridger v. Asheville R. Co., 27 S. C. 456; North Texas Construction Co. v. Bostick, 98 Tex. 239; Kyne v. Southern R. Co., 41 Utah, 368; Quinn v. Ross Car Co., 157 Wis. 543 Accord. As to experience, see Stern v. Bensieck, 161 Mo. 146.

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

“Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.”

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

[89]. The liability of an infant for his torts is universally recognized.

Trespass. Y. B. 35 Hen. VI. f. 11, pl. 18; Burnard v. Haggis, 14 C. B. N. S. 45; Neal v. Gillett, 23 Conn. 437; Wilson v. Garrard, 59 Ill. 51; Peterson v. Haffner, 59 Ind. 130; Scott v. Watson, 46 Me. 362; Marshall v. Wing, 50 Me. 62; Sikes v. Johnson, 16 Mass. 389; School District v. Bragdon, 23 N. H. 507; Campbell v. Stakes, 2 Wend. 137; Hartfield v. Roper, 21 Wend. 615, 620; Tifft v. Tifft, 4 Denio, 175; Conklin v. Thompson, 29 Barb. 218; Huchting v. Engel, 17 Wis. 230; Vosburg v. Putney, 80 Wis. 523; Vosburg v. Putney, 86 Wis. 278.

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

Deceit. Fitts v. Hall, 9 N. H. 441; Word v. Vance, 1 N. & McC. 197.

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

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

In Scott v. Watson, supra, Appleton, J., said: “Nor is his infancy any defence, for infants are liable for torts.... The parent is not answerable for the torts of his minor child, committed in his absence and without his authority or approval, but the minor is answerable therefor. Tifft v. Tifft, 4 Denio, 177. The minor is not exempt from liability, though the trespass was committed by the express command of the father. Humphrey v. Douglass, 10 Vt. 71.

“Nor can the defendant derive any support from the scriptural injunction to children of obedience to their parents, invoked in defence. No such construction can be given to the command, ‘Children, obey your parents in the Lord, for this is right,’ as to sanction or justify the trespass of the son upon the land of another, and the asportation of his crops, even though done by the express commands of his father. The defence is as unsound in its theology as it is baseless in its law.” [Smith v. Kron, 96 N. C. 392, 397; O’Leary v. Brooks, 7 N. D. 554; Humphrey v. Douglass, 10 Vt. 71; Huchting v. Engel, 17 Wis. 230 Accord.]

May, J., dissented, saying: “I am not quite satisfied with either the law or the theology of the opinion in this case. That sins of ignorance may be winked at, is both a dictate of reason and of Scripture. It is true, as a general rule, that infants who have arrived at the age of discretion are liable for their tortious acts. But, for the protection of infants, ought not the rule to be limited to cases where the infant acts under such circumstances that he must know or be presumed to know that the acts which he commits are unauthorized and wrong, when it appears that in the commission of the acts he was under the control and direction of his father? Will not an opposite doctrine tend to encourage disobedience in the child, and thus be subversive of the best interests of the community? Will it not also tend to subject him to embarrassment and insolvency when he shall arrive at full age? If all the members of a family under age are to be held liable in trespass or trover for the food which they eat, when that food is in fact the property of another, but, being set before them, they partake of it, in ignorance of such fact, by the command or direction of the parent, and under the belief that it is his, will not such a doctrine be in conflict with the principle that the common law is intended as a shield and protection against the improvidence of infancy? While the decided cases upon this subject seem to be limited to cases of contract, is there not the same reason for extending it, and applying it to cases like the one before us? In all the cases which I have examined in which infants have been held liable, the proof shows acts of positive wrong committed under circumstances where the infant must have known the nature and character of his acts. If the doctrines of the opinion are to prevail in a case like this, then the common law is but the revival of the old doctrine that the parents, by eating sour grapes, have set the children’s teeth on edge. The rule that a servant who acts in ignorance of the rights of his principal is to be held liable for his acts, does not fall within the principles for which I contend.”

[90]. Welch v. Durand, 36 Conn. 182; Flinn v. State, 24 Ind. 286; Peterson v. Haffner, 59 Ind. 130; Mercer v. Corbin, 117 Ind. 450; Commonwealth v. Lister, 15 Phila. 405; Vosburg v. Putney, 80 Wis. 523; Vosburg v. Putney, 86 Wis. 278 Accord.

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

[92]. Statement, arguments, and parts of opinions omitted.

[93]. This decision and Bridges v. North London R. Co., L. R. 7 H. L. 213, put an end in England to a conflict of authority as to the power of the judge to withdraw the case from the jury where there was an “invitation to alight” or “slamming the door” of a compartment car. See the cases cited in 21 Halsbury, Laws of England, 445.

A like question, much discussed in the United States, is: A man, without looking or listening, attempts to cross the track of a steam railway, and is hit by a negligently managed engine. Should the judge rule that crossing without looking and listening (or crossing without stopping, looking, and listening) is, as matter of law, negligent conduct? Or should the judge tell the jury that such conduct is evidence from which negligence may be inferred, and that it is for them to say whether they do infer it? As to this, there is a conflict of authority. See discussion and collected cases in 3 Elliott on Railroads (1st ed.) § 1167; 2 Thompson, Commentaries on the Law of Negligence, Chap. 52, Article 2, §§ 1637–1661, especially §§ 1640, 1649, 1650, 1653; 33 Cyc. 1116 ff.; Beach on Contributory Negligence (3d ed.) §§ 181, 182.

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

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

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

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

[94]. But see L. R. 6 Q. B. 760–761.

[95]. Arguments omitted; also the concurring opinion of Lush, J., and the dissenting opinion of Hannen, J.

[96]. Affirmed in the Exchequer Chamber, L. R. 6 Q. B. 759.

Byrne v. Boadle, 2 H. & C. 722; Scott v. London Docks Co., 3 H. & C. 596; Skinner v. London R. Co., 5 Ex. 787; The Joseph D. Thomas, 81 Fed. 578; Hastorf v. Hudson River Co., 110 Fed. 669; Cincinnati R. Co. v. South Fork Coal Co., 139 Fed. 528; Kahn v. Cap Co., 139 Cal. 340; Armour v. Golkowska, 202 Ill. 144; Talge v. Hockett, 55 Ind. App. 303; Nicoll v. Sweet, 163 Ia. 683; Melvin v. Pennsylvania Steel Co., 180 Mass. 196; Hull v. Berkshire R. Co., 217 Mass. 361; Cleary v. Cavanaugh, 219 Mass. 281; Scharff v. Southern Construction Co., 115 Mo. App. 157; Pratt v. Missouri R. Co., 139 Mo. App. 502; Mullen v. St. John, 57 N. Y. 567; Wolf v. American Society, 164 N. Y. 30; Griffen v. Manice, 166 N. Y. 188; Kennedy v. McAllaster, 31 App. Div. 453; Scheider v. American Bridge Co., 78 App. Div. 163; Travers v. Murray, 87 App. Div. 552; Connor v. Koch, 89 App. Div. 33; Larkin v. Reid Co., 161 App. Div. 77; Papazian v. Baumgartner, 49 Misc. 244; Barnes v. Automobile Co., 32 Ohio Cir. Ct. R. 233; Muskogee Traction Co. v. McIntire, 37 Okl. 684; Edwards v. Manufacturers’ Co., 27 R. I. 248; Patterson v. Brewing Co., 16 S. D. 33; Richmond R. Co. v. Hudgins, 100 Va. 409; Gibson v. Chicago R. Co., 61 Wash. 639; Carroll v. Chicago R. Co., 99 Wis. 399; Klitzke v. Webb, 120 Wis. 254; Schmidt v. Johnson Co., 145 Wis. 49; Snyder v. Wheeling Electrical Co., 43 W. Va. 661 Accord.

Where the declaration alleges negligence and sets forth the nature and particulars of the accident but not the particulars of the alleged negligence, plaintiff may rely upon this doctrine, if the accident is of such a kind as to indicate that it would not have happened without negligence on the part of the defendant. James v. Boston R. Co., 204 Mass. 158.

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

“There are many cases that hold that an unexplained accident with a machine, not liable to occur if such machine was properly constructed and in a proper state of repair, is evidence of negligence; as in Spaulding v. C. & N. W. R. Co., 30 Wis. 110, where it was held that the escape of fire from a passing locomotive engine, sufficient to cause damage, raised a presumption of improper construction or insufficient repair or negligent handling of such engine. To the same effect are Cummings v. Nat. Furnace Co., 60 Wis. 603; Kurz & Huttenlocher Ice Co. v. M. & N. R. Co., 84 Wis. 171; Stacy v. M., L. S. & W. R. Co., 85 Wis. 225; Mullen v. St. John, 57 N. Y. 567; Volkmar v. Manhattan R. Co., 134 N. Y. 418; McCarragher v. Rogers, 120 N. Y. 526, and many others that might be cited. Such cases lay down a very well-recognized principle in the law of negligence, but do not ... conflict in the slightest degree with numerous authorities that go on another principle, just as well-recognized and firmly established, to the effect that undisputed proof of freedom of the machine from all discoverable defects, either in construction or repair, effectually overcomes any mere inference or presumption arising from the happening of the accident, so as to leave no question in that regard for the jury; as in Spaulding v. C. & N. W. R. Co., 33 Wis. 582, where this court held the inference that a locomotive engine was defective, arising merely from the escape of fire therefrom sufficient to cause damage, rebutted by conclusive proof that the engine was free from discoverable defects, so as to leave nothing on that point for the consideration of a jury.” Marshall, J., Vorbrich v. Geuder Co., 96 Wis. 277, 284. See Green v. Urban Constructing Co., 106 App. Div. 460 Accord.

[97]. The arguments of counsel and a part of the opinion are omitted.

[98]. There is a conflict of authority upon the question whether the maxim res ipsa loquitur is applicable in an action by a servant against a master. See cases collected in an elaborate note, 6 Lawyers’ Reports, Annotated, New Series, 337–363. See also 2 Labatt on Master & Servant, §§ 833, 834, 835; especially authorities cited in § 834, note 8.

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

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

[100]. The arguments of counsel, concurring opinion of Vaughan-Williams, L. J., and dissenting opinion of Buckley, L. J., and part of the opinion of Moulton, L. J., dealing with another point, are omitted.

[101]. Bonham v. Winchester Arms Co., 179 Ill. App. 469; Prestolite Co. v. Skeel, 182 Ind. 593; Rice v. Chicago R. Co., 153 Mo. App. 35; Dalzell v. New York R. Co., 136 App. Div. 329 Accord.

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

[102]. Statement abridged.

[103]. “The maxim res ipsa loquitur is simply a rule of evidence.

The general rule is that negligence is never presumed from the mere fact of injury, yet the manner of the occurrence of the injury complained of, or the attendant circumstances, may sometimes well warrant an inference of negligence. It is sometimes said that it warrants a presumption of negligence, but the presumption referred to is not one of law, but of fact. It is, however, more correct and less confusing to refer to it as an inference, rather than a presumption, and not an inference which the law draws from the fact, but an inference which the jury are authorized to draw, and not an inference which the jury are compelled to draw.” Cobb, J., in Palmer Brick Co. v. Chenall, 119 Ga. 837, 842. See Sweeney v. Erving, 228 U. S. 233, 240; Harlow v. Standard Imp. Co., 145 Cal. 477; National Biscuit Co. v. Wilson, 169 Ind. 442; O’Neil v. Toomey, 218 Mass. 242; Lincoln v. Detroit R. Co., 179 Mich. 189; Boucher v. Boston R. Co., 76 N. H. 91; Ross v. Cotton Mills, 140 N. C. 115. But compare Thompson v. St. Louis R. Co., 243 Mo. 336, 353.

[104]. Statement abridged.

[105]. 59 N. J. Law, 474.

[106]. Actiesselskabet Ingrid v. Central R. Co., 216 Fed. 72; Huneke v. West Brighton Amusement Co., 80 App. Div. 268; De Glopper v. Nashville R. Co., 123 Tenn. 633 Accord.

[107]. Statement abridged. Part of opinion omitted.

[108]. Carpenter v. Walker, 170 Ala. 659; Miller v. Fletcher, 142 Ga. 668; Zabron v. Cunard Co., 151 Ia. 345; Randolph v. Snyder, 139 Ky. 159; Springfield Egg Co. v. Springfield Ice Co., 259 Mo. 664; Hales v. Raines, 146 Mo. App. 232, 239; Robinson v. Threadgill, 13 Ired. Law, 39; Hobbs v. Smith, 27 Okl. 830 Accord.

[109]. The opinion of Lord Esher, M. R., is omitted.

[110]. The settled practice allows an action against a carrier either upon contract or upon tort, as best suits the purposes of the pleader. 3 Hutchinson, Carriers (3d ed.), § 1325.

[111]. Sect. 2222. “There must be fixed on the line of said roads, and at the distance of four hundred yards from the centre of each of such road crossings, and on each side thereof, a post, and the engineer shall be required, whenever he shall arrive at either of said posts, to blow the whistle of the locomotive until it arrives at the public road, and to simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road.”

Sect. 2224. “If any engineer neglects to blow said whistle as required, and to check the speed as required, he is guilty of a misdemeanor....”—Georgia Code of 1895.

[112]. Only so much of the case is given as relates to a single point. Statement abridged. Part of opinion omitted.

[113]. But see Mayer v. Thompson, 104 Ala. 611; Carter v. Atlantic R. Co., 84 S. C. 456; Lough v. Davis, 30 Wash. 204.

[114]. Stiewel v. Borman, 63 Ark. 30; Owens v. Nichols, 139 Ga. 475; Baird v. Shipman, 132 Ill. 16; Tippecanoe Loan & Trust Co. v. Jester, 180 Ind. 357; Ward v. Pullman Co., 131 Ky. 142; Consolidated Gas Co. v. Connor, 114 Md. 140; Ellis v. McNaughton, 76 Mich. 237; Orcutt v. Century Bldg. Co., 201 Mo. 424; Hagerty v. Montana Ore Co., 38 Mont. 69; Horner v. Lawrence, 37 N. J. Law, 46; Schlosser v. Great Northern R. Co., 20 N. D. 406, 411; Greenberg v. Whitcomb, 90 Wis. 225 Accord.

[115]. Northern R. Co. v. State, 29 Md. 420; Dyche v. Vicksburg R. Co., 79 Miss. 361; Bresnahan v. Lonsdale Co., (R. I. 1900) 51 Atl. 624 Accord.

See also Willes, J., in Skelton v. London R. Co., L. R. 2 C. P. 631, 636; Bailey v. Walker, 29 Mo. 407; Thorne v. Deas, 4 Johns. 84, 96; Hyde v. Moffat, 16 Vt. 271.

[116]. Allen v. Hixson, 111 Ga. 460; Griswold v. Boston R. Co., 183 Mass. 434; Stager v. Laundry Co., 38 Or. 480, 489; Scholl v. Belcher, 63 Or. 310; Ollett v. Pennsylvania R. Co., 201 Pa. St. 361; King v. Interstate R. Co., 23 R. I. 583; Riley v. Gulf R. Co., (Tex. Civ. App.) 16 S. W. 595 Accord. See also Kenney v. Hannibal R. Co., 70 Mo. 252.

Whitesides v. Southern R. Co., 128 N. C. 229 (divided court) contra. See also Dyche v. Vicksburg R. Co., 79 Miss. 361.

[117]. Ohio R. Co. v. Early, 141 Ind. 73; Raasch v. Elite Laundry Co., 98 Minn. 357 (semble); Salter v. Nebraska Telephone Co., 79 Neb. 373 (semble) Accord. See also Shaw v. Milwaukee R. Co., 103 Minn. 8.

It has been held also that such a duty is incidental to the relation of carrier and passenger. Layne v. Chicago R. Co., 175 Mo. App. 35, 41. Compare Kambour v. Boston R. Co., 77 N. H. 33; Southern R. Co. v. Sewell, 18 Ga. App. 544.

It has always been regarded as incidental to the employment of seamen. The Iroquois, 194 U. S. 240; U.S. v. Knowles, 4 Sawy. 517; Scarff v. Metcalf, 107 N.Y. 211.

[118]. See also Weymire v. Wolfe, 52 Ia. 533; Trout v. Watkins, 148 Mo. App. 621. Compare Texas R. Co. v. Geraldon, 54 Tex. Civ. App. 71.

On the whole subject, see Ames, Law and Morals, 22 Harvard Law Rev. 99, 111–113; Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, 56 University of Pennsylvania Law Rev. 217, 316; Bruce, Humanity and the Law, 73 Central Law Journ. 335.

[119]. A woman’s head-dress catches fire: water is at hand: a man, instead of assisting to quench the fire, looks on and laughs at it. A drunken man, falling with his face downwards into a puddle, is in danger of suffocation: lifting his head a little on one side would save him: another man sees this and lets him lie. A quantity of gunpowder lies scattered about a room: a man is going into it with a lighted candle: another, knowing this, lets him go in without warning. Who is there that in any of these cases would think punishment misapplied?—Author’s Note.

[120]. This proposed code was not enacted.

[121]. A Penal Code prepared by the Indian Law Commissioners, and published by command of the Governor-General of India in Council; Calcutta, 1837.

[122]. As to the authorship of these notes, see the preface to the English edition (1875) of Macaulay’s Works. As to the code itself, see Stephen, History of the Criminal Law of England, 298–323.

[123]. Statement abridged. Arguments of counsel omitted.

[124]. Grand Trunk R. Co. v. Barnett, [1911] A. C. 361; Louisville R. Co. v. Womack, 173 Fed. 752; Chesapeake R. Co. v. Hawkins, 174 Fed. 597; Graysonia Lumber Co. v. Carroll, 102 Ark. 460; Chicago Terminal Co. v. Kotoski, 199 Ill. 383; Neice v. Chicago R. Co., 254 Ill. 595; Jordan v. Grand Rapids R. Co., 162 Ind. 464; Burgess v. Atchison R. Co., 83 Kan. 497; Lando v. Chicago R. Co., 81 Minn. 279; Ingram-Day Lumber Co. v. Harvey, 98 Miss. 11; Koegel v. Missouri R. Co., 181 Mo. 379; Hoberg v. Collins, 80 N. J. Law, 425; Gulf R. Co. v. Dees, 44 Okl. 118; Woodward v. Southern R. Co., 90 S. C. 262; Norfolk R. Co. v. Wood, 99 Va. 156; Huff v. Chesapeake R. Co., 48 W. Va. 45 Accord.

So in case of persons wrongfully upon engines, cars, or trains. Chicago R. Co. v. McDonough, 112 Ill. App. 315; Handley v. Missouri R. Co., 61 Kan. 237; Planz v. Boston R. Co., 157 Mass. 377; Bjornquist v. Boston R. Co., 185 Mass. 130; Feeback v. Missouri R. Co., 167 Mo. 206; Wickenburg v. Minneapolis R. Co., 94 Minn. 276 (boy of twelve); Johnson v. New York R. Co., 173 N. Y. 79; Morgan v. Oregon R. Co., 27 Utah, 92. But see Johnson v. Chicago R. Co., 123 Ia. 224; Pierce v. North Carolina R. Co., 124 N. C. 83. As to who is a trespasser in such a place, see Yancey v. Boston R. Co., 205 Mass. 162.

“A railway company may lawfully require a wilful trespasser upon one of its moving trains to immediately cease his unlawful conduct, by such means as not to indicate a willingness to deprive him of his self-control in leaving the train, the speed of the train not being so great that a personal injury to him should be expected to occur, giving due consideration to the duty of the trespasser to cease his lawlessness by all reasonable means in his power and reasonable expectation that he will use such means in attempting to do it. It is not sufficient to indicate an intentional injury that the party causing it had reasonable ground to expect that such a result was within reasonable probabilities, otherwise a violation of the duty to exercise ordinary care would, of itself, be sufficient to indicate such injury. The danger of inflicting a personal injury upon a person by the conduct of another must be such as to reasonably permit of a belief that such other either contemplated producing it, or, being conscious of the danger that it would occur, imposed such danger upon that person in utter disregard of the consequences, to warrant saying, reasonably, that the circumstances indicate willingness to perpetrate such injury.” Marshall, J., in Bolin v. Chicago R. Co., 108 Wis. 333, 351–352. See also Hoberg v. Collins, 80 N. J. Law, 425, 429. But compare Palmer v. Gordon, 173 Mass. 410; Romana v. Boston R. Co., 226 Mass. 533.

[125]. Statement abridged. Part of opinion omitted.

[126]. Rome Furnace Co. v. Patterson, 120 Ga. 521; Fields v. Louisville R. Co., 163 Ky. 673 Accord. See also Hector Min. Co. v. Robertson, 22 Col. 491; Hobbs v. Blanchard, 74 N. H. 116; Stuck v. Kanawha R. Co., 76 W. Va. 453; Peaslee, Duty to Seen Trespassers, 27 Harvard Law Rev. 403.

As to duty to observed child trespasser, see Little Rock R. Co. v. Barker, 39 Ark. 491, 500; Louisville R. Co. v. Lohges, 6 Ind. App. 288; Baltimore R. Co. v. Welch, 114 Md. 536. To observed helpless trespasser, see Tanner v. Louisville R. Co., 60 Ala. 621; Pannell v. Nashville R. Co., 97 Ala. 298; Martin v. Chicago R. Co., 194 Ill. 138; Krenzer v. Pittsburgh R. Co., 151 Ind. 587; Glenn v. Louisville R. Co., 28 Ky. Law Rep. 949. To trespasser observed in a dangerous position, see Haley v. Kansas City R. Co., 113 Ala. 640; Atkinson v. Kelley, 8 Ala. App. 571; St. Louis R. Co. v. Townsend, 69 Ark. 380, 383; Chicago R. Co. v. Kotoski, 199 Ill. 383; Richardson v. Missouri R. Co., 90 Kan. 292; Whitehead v. St. Louis R. Co., 99 Mo. 263; Mathews v. Chicago R. Co., 63 Mo. App. 569; Omaha R. Co. v. Cook, 42 Neb. 577.

[127]. Statement rewritten; part of case omitted; argument omitted.

[128]. The above portions of the instructions are set out in the argument of counsel, pp. 235–237.

[129]. Schmidt v. Michigan Coal Co., 159 Mich. 308; Myers v. Boston R. Co., 72 N. H. 175; Carney v. Concord St. R. Co., 72 N. H. 364; Brown v. Boston R. Co., 73 N. H. 568; Magar v. Hammond, 171 N. Y. 377; O’Leary v. Brooks Elevator Co., 7 N. D. 568 Accord. See also Houston R. Co. v. Garrett, (Tex. Civ. App.) 160 S. W. 111.

As to the effect of a statute prohibiting the particular trespass, see Marra v. New York R. Co., 139 App. Div. 707.

As to when a horse is trespassing, see Taft v. New York R. Co., 157 Mass. 297.

[130]. The statement and part of the opinion are omitted.

[131]. That in general there is no duty to look out for trespassers on the track or right of way, see also Cleveland R. Co. v. Tartt, 99 Fed. 369; Louisville R. Co. v. Jones, 191 Ala. 484; Goudreau v. Connecticut Co., 84 Conn. 406; Atlantic R. Co. v. McDonald, 135 Ga. 635; Curd v. Cincinnati R. Co., 163 Ky. 104; Baltimore R. Co. v. State, 114 Md. 536; Petur v. Erie R. Co., 151 App. Div. 578; Carter v. Erie R. Co., 33 Ohio Cir. Ct. Rep. 377; Laeve v. Missouri R. Co., (Tex. Civ. App.) 136 S. W. 1129.

Jeffries v. Seaboard R. Co., 129 N. C. 236 contra. See also Ark. Kirby’s Dig. § 6607; Tenn. Shannon’s Code, § 1574(4).

As to duty of trainmen in a place where there is a known likelihood of trespassers, see Southern R. Co. v. Donovan, 84 Ala. 141; Bullard v. Southern R. Co., 116 Ga. 644; Cincinnati R. Co. v. Blankenship, 157 Ky. 699; Risbridger v. Michigan R. Co., 188 Mich. 672; Fearons v. Kansas City R. Co., 180 Mo. 208; Eppstein v. Missouri R. Co., 197 Mo. 720; Krummack v. Missouri R. Co., 98 Neb. 773; St. Louis R. Co. v. Hodge, (Okl.) 157 Pac. 60; Whelan v. Baltimore R. Co., 70 W. Va. 442; Whalen v. Chicago R. Co., 75 Wis. 654. Contra: Baltimore R. Co. v. Welch, 114 Md. 536; Boden v. Boston R. Co., 205 Mass. 504; Haltiwanger v. Columbia R. Co., 64 S. C. 7. Compare Lowery v. Walker, [1911] A. C. 10.

The trainmen may assume that an adult trespasser, not in obvious peril, will look out for himself. Indianapolis R. Co. v. McClaren, 62 Ind. 566; Campbell v. Kansas City R. Co., 55 Kan. 536; St. Louis R. Co. v. Herrin, 6 Tex. Civ. App. 718. As to a child, see Pennsylvania R. Co. v. Morgan, 82 Pa. St. 134.

[132]. “The duty must be one owed by the defendants to the plaintiffs in respect to the very matter or act charged as negligence.”—Parsons, C. J., in Pittsfield C. M. Co. v. Pittsfield Shoe Co., 71 N. H. 522, 531.

[133]. Statement abridged.

[134]. Hardcastle v. South Yorkshire R. Co., 4 H. & N. 67; Ponting v. Noakes, [1894] 2 Q. B. 281; Scoggin v. Atlantic Cement Co., 179 Ala. 213; Gordon v. Roberts, 162 Cal. 506; Whitney v. New York R. Co., 87 Conn. 623; Garner v. Town, 7 Ga. App. 630; McDermott v. Burke, 256 Ill. 401; Northwestern El. Co. v. O’Malley, 107 Ill. App. 599; Knapp v. Doll, 180 Ind. 526; St. Joseph I. Co. v. Bertch, 33 Ind. App. 491; Upp v. Darner, 150 Ia. 403; Bransom v. Labrot, 81 Ky. 638; Mallock v. Derby, 190 Mass. 208; Flanagan v. Sanders, 138 Mich. 253; Dahl v. Valley Dredging Co., 125 Minn. 90; Schmidt v. Distilling Co., 90 Mo. 284; Henry v. Disbrow M. Co., 144 Mo. App. 350; Butler v. Chicago R. Co., 155 Mo. App. 287; Burrill v. Alexander, 75 N. H. 554; Kleinberg v. Schween, 134 App. Div. 493; Riggle v. Lens, 71 Or. 125; Clapp v. La Grill, 103 Tenn. 164; Stamford Oil Co. v. Barnes, 103 Tex. 409; Denison Light Co. v. Patton, 105 Tex. 621; Lunsford v. Colonial Coal Co., 115 Va. 346; Anderson v. Northern R. Co., 19 Wash. 340; West v. Shaw, 61 Wash. 227.

As to setting traps for trespassers, see Bird v. Holbrook, 4 Bing. 628; Hooker v. Miller, 37 Ia. 613. Compare Marble v. Ross, 124 Mass. 44; Loomis v. Terry, 17 Wend. 497; Sherfey v. Bartley, 4 Sneed, 58.

[135]. Latham v. Johnson, [1913] 1 K. B. 398; Cleveland R. Co. v. Ballentine, 84 Fed. 935; Riedel v. West Jersey Co., 177 Fed. 374; Pastorello v. Stone, 89 Conn. 286; Norman v. Bartholomew, 104 Ill. App. 667; Nelson v. Burnham Co., 114 Me. 213; Peninsular Trust Co. v. City, 131 Mich. 571; Houck v. Chicago R. Co., 116 Mo. App. 559; Hughes v. Boston R. Co., 71 N. H. 279; Leithold v. Philadelphia R. Co., 47 Pa. Super. Ct. 137; Dobbins v. Missouri R. Co., 91 Tex. 60; Bottum v. Hawks, 84 Vt. 370; Curtis v. Stone Quarries, 37 Wash. 355; Uthermohler v. Mining Co., 50 W. Va. 457; Ritz v. City, 45 W. Va. 262 Accord. Compare Walsh v. Pittsburg R. Co., 221 Pa. St. 463; Lyttle v. Harlem Coal Co., 167 Ky. 345.

[136]. This opinion, too long to be inserted here, will be found in 2 Cent. Law Journal, 170.

[137]. Railroad Co. v. Stout, 17 Wall. 657; Union R. Co. v. McDonald, 152 U. S. 262 (slackpit); St. Louis R. Co. v. Underwood, (C. C. A.) 194 Fed. 363 (pile of lumber); Southern R. Co. v. Bunt, 131 Ala. 591; Thompson v. Alexander Cotton Mills Co., 190 Ala. 184 (drain containing hot water); Barrett v. Southern P. R. Co., 91 Cal. 296 (but see Peters v. Bowman, 115 Cal. 345—pond; George v. Los Angeles R. Co., 126 Cal. 357—cars standing unattended); Ferguson v. Columbus R. Co., 75 Ga. 637, 77 Ga. 102 (but see Savannah R. Co. v. Beavers, 113 Ga. 398—excavation); City v. McMahon, 154 Ill. 141; Donk Bros. v. Leavitt, 109 Ill. App. 385; Belt R. Co. v. Charters, 123 Ill. App. 322 (but see American Advertising Co. v. Flannigan, 100 Ill. App. 452); Chicago R. Co. v. Fox, 38 Ind. App. 268; Lewis v. Cleveland R. Co., 42 Ind. App. 337; Edgington v. Burlington R. Co., 116 Ia. 410 (but see Anderson v. Ft. Dodge R. Co., 150 Ia. 465); Price v. Atchison Water Co., 58 Kan. 551 (reservoir); Kansas City R. Co. v. Matson, 68 Kan. 815 (wood pile); Osborn v. Atchison R. Co., 86 Kan. 440 (abandoned round house—but see Somerfield v. Land and Power Co., 93 Kan. 762—unguarded canal); Bransom v. Labrot, 81 Ky. 638 (pile of timber); Palermo v. Orleans Ice Co., 130 La. 833 (gutter containing hot water); Koons v. St. Louis R. Co., 65 Mo. 592; Schmidt v. Kansas City Distilling Co., 90 Mo. 284 (hole made by escaping steam); Berry v. St. Louis R. Co., 214 Mo. 593 (but see Overholt v. Vieths, 93 Mo. 422—abandoned quarry; Barney v. Hannibal R. Co., 126 Mo. 372—unfenced freight yard; Kelly v. Benas, 217 Mo. 1—pile of lumber); Chicago R. Co. v. Krayenbuhl, 65 Neb. 889; Evansich v. Gulf R. Co., 57 Tex. 126 (but see Missouri R. Co. v. Edwards, 90 Tex. 65; Johnson v. Atlas Supply Co., (Tex. Civ. App.) 183 S. W. 31, 33); Smalley v. Rio Grande R. Co., 34 Utah, 423 (but see Palmer v. Oregon S. L. Co., 34 Utah, 466); Haynes v. City, 69 Wash. 419 (but see Barnhart v. Chicago R. Co., 89 Wash. 304); Kelley v. Southern R. Co., 152 Wis. 328 (but see Emond v. Kimberly-Clark Co., 159 Wis. 83—pond) Accord.

Compare McCabe v. American Woolen Co., (C. C. A.) 132 Fed. 1006 (unguarded canal); Valley Planing Mill v. McDaniel, 119 Ark. 139; Brinkley v. Cooper, 70 Ark. 331; Prickett v. Pardridge, 189 Ill. App. 307; Stendal v. Boyd, 73 Minn. 53; Dahl v. Valley Dredging Co., 125 Minn. 90; Cooper v. Overton, 102 Tenn. 211.

See also Smith, Landowner’s Liability to Children, 11 Harv. Law Rev. 349, 434; 7 Thompson, Negligence, § 1031; Burdick, Torts (3d. ed.), §§ 558–569.

As to the age to which the doctrine is applicable, see Belt R. Co. v. Charters, 123 Ill. App. 322; State Bank v. Mandel, 176 Ill. App. 278; Wilmes v. Chicago R. Co. 175 Ia. 101; Shaw v. Chicago R. Co., (Mo.) 184 S. W. 1151.

[138]. Wilmot v. McPadden, 79 Conn. 367 (building in course of construction); Daniels v. New York R. Co., 154 Mass. 349; Ryan v. Towar, 128 Mich. 463 (water wheel); Peninsular Trust Co. v. City, 131 Mich. 571 (reservoir); Hughes v. Boston R. Co., 71 N. H. 279 (torpedo on right of way); Delaware R. Co. v. Reich, 61 N. J. Law, 635; Walsh v. Fitchburg R. Co., 145 N. Y. 301; Railroad Co. v. Harvey, 77 Ohio St. 235; Paolino v. McKendall, 24 R. I. 432 (unguarded fire); Uthermohlen v. Bogg’s Run Co., 50 W. Va. 457 Accord.

[139]. The arguments of counsel and the concurring opinions of Lords Atkinson, Collins, and Loreburn are omitted.

[140]. See Latham v. Johnson, [1913] 1 K. B. 398. In that case Hamilton, L. J., said (pp. 415–416): “Two other terms must be alluded to—a ‘trap’ and ‘attraction’ or ‘allurement.’ A trap is a figure of speech, not a formula. It involves the idea of concealment and surprise, of an appearance of safety under circumstances cloaking a reality of danger. Owners and occupiers alike expose licensees and visitors to traps on their premises at their peril, but a trap is a relative term. In the case of an infant, there are moral as well as physical traps. There may accordingly be a duty towards infants not merely not to dig pitfalls for them, but not to lead them into temptation. ‘Allurements,’ too, is a vague word. It may refer only to the circumstances under which the injured child has entered the close. Here it is hard to see how infantile temptations can give rights, however much they may excuse peccadilloes. A child will be a trespasser still, if he goes on private ground without leave or right, however natural it may have been for him to do so. On the other hand, the allurement may arise after he has entered with leave or as of right. Then the presence in a frequented place of some object of attraction, tempting him to meddle where he ought to abstain, may well constitute a trap, and in the case of a child too young to be capable of contributory negligence it may impose full liability on the owner or occupier, if he ought, as a reasonable man, to have anticipated the presence of the child and the attractiveness and peril of the object.”

“Finally, what objects which attract infants to their hurt are traps even to them? Not all objects with which children hurt themselves simpliciter. A child can get into mischief and hurt itself with anything if it is young enough. In some cases the answer may rest with the jury, but it must be matter of law to say whether a given object can be a trap in the double sense of being fascinating and fatal. No strict answer has been, or perhaps ever will be, given to the question, but I am convinced that a heap of paving stone in broad daylight in a private close cannot so combine the properties of temptation and retribution as to be properly called a trap.”

[141]. Statement abridged. Arguments omitted, and parts of opinions.

[142]. See also Cole v. Willcutt, 214 Mass. 453; Habina v. Twin City Electric Co., 150 Mich. 41; Chesley v. Rocheford, 4 Neb. Unoff. 768, 777.

For examples of “traps,” see Lowery v. Walker, [1911] A. C. 10; Rollestone v. Cassirer, 3 Ga. App. 161; Foren v. Rodick, 90 Me. 276; Hill v. President and Trustees, 61 Or. 190; Grant v. Hass, 31 Tex. Civ. App. 688; Brinilson v. Chicago R. Co., 144 Wis. 614.

[143]. Affirmed in the Exchequer Chamber, L. R. 2 C. P. 311. Hounsell v. Smyth, 7 C. B. N. S. 731; Batchelor v. Fortescue, 11 Q. B. D. 474; Watson v. Manitou R. Co., 41 Col. 138; Bentley v. Loverock, 102 Ill. App. 166; Joseph v. Henrici Co., 137 Ill. 171; Indiana R. Co. v. Barnhart, 115 Ind. 399; South Bend Iron Works v. Larger, 11 Ind. App. 367; Dixon v. Swift, 98 Me. 207; Reardon v. Thompson, 149 Mass. 267; Blackstone v. Chelmsford Foundry Co., 170 Mass. 321; Vanderbeck v. Hendry, 34 N. J. Law, 467; Fitzpatrick v. Cumberland Glass Co., 61 N. J. Law, 378; Taylor v. Turnpike Co., 65 N. J. Law, 102; Victory v. Baker, 67 N. Y. 366; Larmore v. Crown Point Iron Co., 101 N. Y. 391; Sterger v. Van Sicklen, 132 N. Y. 499; Englehardt v. Central R. Co., 139 App. Div. 786; McCann v. Thilemann, 36 Misc. 145; Monroe v. Atlantic R. Co., 151 N. C. 374; Costello v. Farmers’ Bank, 34 N. D. 131; Kelley v. City, 41 Ohio St. 263; Schiffer v. Sauer, 238 Pa. St. 550; Lunsford’s Administrator v. Colonial Coal Co., 115 Va. 346 Accord.

But see Brinilson v. Chicago R. Co., 144 Wis. 614.

As to liability to children licensees, see Jansen v. Siddal, 41 Ill. App. 279; Cleveland R. Co. v. Means, (Ind. App.) 104 N. E. 785; Benson v. Baltimore Traction Co., 77 Md. 535; McCoy v. Walsh, 186 Mass. 369; Romana v. Boston R. Co., 218 Mass. 76; Bottum v. Hawks, 84 Vt. 370.

But see Knapp v. Doll, 180 Ind. 526 (citing cases); Wilmes v. Chicago R. Co., 175 Ia. 101; Lyttle v. Town Coal Co., 167 Ky. 345.

As to liability where there is a known, permissive, general use by the public, see Pomponio v. New York R. Co., 66 Conn. 528; Western R. Co. v. Meigs, 74 Ga. 857; Green v. Chicago R. Co., 110 Mich. 648; Barry v. New York R. Co., 92 N. Y. 289; Taylor v. Delaware Canal Co., 113 Pa. St. 162; Delaney v. Milwaukee R. Co., 33 Wis. 67. Compare Tucker v. Draper, 62 Neb. 66.

Liability in case of gratuitous carriage: [The judge at the trial in charging the jury] “suggested that the measure of duty towards a bare licensee is different, where the licensor accepts the duty of carrying him, from what it is where he merely permits him to pass through his premises; and I think the cases support this view.... I think it was competent for the jury to find, as they must be taken to have found, a failure of that ordinary care which is due from a person who undertakes the carriage of another gratuitously. The principle in all cases of this class is that the care exercised must be reasonable; and the standard of reasonableness naturally must vary according to the circumstances of the case, the trust reposed, and the skill and appliances at the disposal of the person to whom another confides a duty. There is an obvious difference between the measure of confidence reposed and responsibility accepted in the case of a person who merely receives permission to traverse the premises of another, and in the case where a person or his property is received into the custody of another for transportation: see in the case of goods, Southcote’s Case, (1601) 4 Rep. 83 b. cited in Coggs v. Bernard, 1 Smith, L. C., 11th ed., p. 173, and the notes thereto. In the case of persons received for carriage, Parke, B., says in Lygo v. Newbold, (1854) 9 Ex. 302, at p. 305: ‘A person who undertakes to provide for the conveyance of another, although he does so gratuitously, is bound to exercise due and reasonable care.’ In Austin v. Great Western Ry. Co., [1867] 2 Q. B. 442, at p. 445, Blackburn, J., says: ‘I think that what was said in the case of Marshall v. York, Newcastle and Berwick Ry. Co., (1851) 11 C. B. 655, was quite correct. It was there laid down that the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the company to carry him safely.’”

Collins, M. R., in Harris v. Perry, [1903] 2 K. B. 219, 225, 226. And see, also, Sington on Negligence, 61, 62. But compare Beard v. Klusmeier, 158 Ky. 153.

In the case of a gratuitous loan of a chattel, the lender owes no duty to the borrower except to give warning of any defects actually known to the lender. Gagnon v. Dana, 69 N. H. 264; Coughlin v. Gillison, [1899] 1 Q. B. 145. “A contract of gratuitous service, however, such as one of carriage, involves a duty of reasonable care, and must therefore be distinguished from a contract of gratuitous bailment or a gift, which does not.” Salmond on Torts, 361.

[144]. Foster v. Portland Min. Co., (C. C. A.) 114 Fed. 613; Central R. Co. v. Robertson, 95 Ga. 430; Chicago R. Co. v. Reinhardt, 235 Ill. 576, 139 Ill. App. 53; Indianapolis Water Co. v. Harold, 170 Ind. 170; Lawson v. Shreveport Waterworks Co., 111 La. 73; Schaaf v. St. Louis Basket Co., 151 Mo. App. 35; Furey v. New York R. Co., 67 N. J. Law, 270; Fogarty v. Bogart, 59 App. Div. 114; Toledo Real Estate Co. v. Putney, 20 Ohio Cir. Ct. Rep. 486; Bush v. Johnston, 23 Pa. St. 209 Accord. Compare Moffatt v. Kenny, 174 Mass. 311.

[145]. The case is reprinted from the Law Times Reports, except the opinions of Crompton, J., and Blackburn, J., which are taken from the Weekly Reporter.

[146]. The reference should be 25 L. J. (N. S.) or 34 L. J.

[147]. Felton v. Aubrey, 74 Fed. 350; De Haven v. Hennessey, (C. C. A.) 137 Fed. 472; Standard Car Co. v. McGuire, 161 Fed. 527; Pomponio v. New York R. Co., 66 Conn. 528; Rink v. Lowry, 38 Ind. App. 132; Schmidt v. Michigan Coal Co., 159 Mich. 308; Clarkin v. Biwabik-Bessemer Co., 65 Minn. 483; Hyatt v. Murray, 101 Minn. 507; Schaaf v. St. Louis Basket Co., 151 Mo. App. 35; Knowles v. Exeter Mfg. Co., 77 N. H. 268; Houston R. Co. v. Bulger, 35 Tex. Civ. App. 478; Houston R. Co. v. O’Leary, (Tex. Civ. App.) 136 S. W. 601 (explosion of car containing fire-works); St. Louis R. Co. v. Balthrop, (Tex. Civ. App.) 167 S. W. 246; Hoadley v. International Paper Co., 72 Vt. 79 Accord.

Illinois R. Co. v. Godfrey, 71 Ill. 500; Cunningham v. Toledo R. Co., 260 Ill. 589; Dixon v. Swift, 98 Me. 207; O’Brien v. Union R. Co., 209 Mass. 449 Contra. See also Fox v. Warner Asphalt Co., 204 N. Y. 240; Roche v. American Ice Co., 140 App. Div. 341; Rosenthal v. United Beef Co., 52 Misc. 166. Compare Knight v. Lanier, 69 App. Div. 454.

[148]. Statement abridged.

[149]. Corby v. Hill, 4 C. B. N. S. 556; Rooney v. Woolworth, 78 Conn. 167; Graves v. Thomas, 95 Ind. 361; Penso v. McCormick, 125 Ind. 116; Morrison v. Carpenter, 179 Mich. 207; Wheeler v. St. Joseph Stock Yards Co., 66 Mo. App. 260 Accord. Compare Ellsworth v. Metheney, (C. C. A.) 104 Fed. 119; Cahill v. Stone, 153 Cal. 571; Martin v. Louisville Bridge Co., 41 Ind. App. 493; Quigley v. Clough, 173 Mass. 429; Phillips v. Library Co., 55 N. J. Law, 307; Beck v. Carter, 68 N. Y. 283; Hanson v. Spokane Valley Land Co., 58 Wash. 6.

[150]. Statement and arguments omitted.

[151]. Farrant v. Barnes, 11 C. B. N. S. 553; 31 L. J. (C. P.) 137.

[152]. And see Bolch v. Smith, 7 H. & N. 736; 31 L. J. (Ex.) 201.

[153]. Bennett v. Louisville R. Co., 102 U. S. 577; Alabama Steel Co. v. Clements, 146 Ala. 259; Hobart Tie Co. v. Keck, 89 Ark. 122; Whitney v. New York R. Co., 87 Conn. 623; Christopher v. Russell, 63 Fla. 191; Southern Express Co. v. Williamson, 66 Fla. 286; Horton v. Harvey, 119 Ga. 219; Latham v. Roach, 72 Ill. 179; Spry Lumber Co. v. Duggan, 182 Ill. 218; Calvert v. Springfield Electric Co., 231 Ill. 290; Laurie v. McCullough, 174 Ind. 477; Young v. People’s Gas Co., 128 Ia. 290; Anderson v. Hair, 103 Ky. 196; Carleton v. Franconia Iron Co., 99 Mass. 216; McDermott v. Sallaway, 198 Mass. 517; Marston v. Reynolds, 211 Mass. 590; Jacobsen v. Simons, 217 Mass. 194; Samuelson v. Cleveland Iron Co., 49 Mich. 164; Donaldson v. Wilson, 60 Mich. 86; Pelton v. Schmidt, 104 Mich. 345; Nash v. Minneapolis Mill Co., 24 Minn. 501; Emery v. Minneapolis Exposition, 56 Minn. 460; Kean v. Schoening, 103 Mo. App. 77; Shaw v. Goldman, 116 Mo. App. 332; Montague v. Hanson, 38 Mont. 376; Land v. Fitzgerald, 68 N. J. Law, 28; Smith v. Jackson, 70 N. J. Law, 183; Ackert v. Lansing, 59 N. Y. 646; Weller v. Consolidated Gas Co., 198 N. Y. 98; Wilson v. Olano, 28 App. Div. 448; Withers v. Brooklyn Exchange, 106 App. Div. 255; Higgins v. Ruppert, 124 App. Div. 530; Massey v. Seller, 45 Or. 267; Newingham v. Blair, 232 Pa. St. 511; Freer v. Cameron, 4 Rich. Law, 228; League v. Stradley, 68 S. C. 515; Richmond R. Co. v. Moore, 94 Va. 493; Smith v. Parkersburg Ass’n, 48 W. Va. 232; Landry v. Great Northern R. Co., 152 Wis. 379 Accord.

As to child accompanying invitee: see Butler v. Chicago R. Co., 155 Mo. App. 287.

Liability to children invitees: see Miller v. Peck Dry Goods Co., 104 Mo. App. 609; Houck v. Chicago R. Co., 116 Mo. App. 559.

Liability where plaintiff departs from or goes beyond the permission or invitation: New York Oil Co. v. Pusey, 211 Fed. 622; Louisville R. Co. v. Sides, 129 Ala. 399; First Nat. Bank v. Chandler, 144 Ala. 286; Coberth v. Great Atlantic Co., 36 App. D. C. 569; Etheredge v. Central R. Co., 122 Ga. 853; Bennett v. Butterfield, 112 Mich. 96; Hutchinson v. Cleveland Iron Co., 141 Mich. 346; Trask v. Shotwell, 41 Minn. 66; Ryerson v. Bathgate, 67 N. J. Law, 337; Gilfillan v. German Hospital, 115 App. Div. 48; Castoriano v. Miller, 15 Misc. 254; Weaver v. Carnegie Steel Co., 223 Pa. St. 238; Hagan v. Delaware Steel Co., 240 Pa. St. 222; Pierce v. Whitcomb, 48 Vt. 127; Peake v. Buell, 90 Wis. 508; Lehmann v. Amsterdam Coffee Co., 146 Wis. 213.

But compare Pauckner v. Wakem, 231 Ill. 276.

Use for purpose not intended by owner or occupier: Thiele v. McManus, 3 Ind. App. 132; Smith v. Trimble, 111 Ky. 861; Ferguson v. Ferguson, (Ky.) 114 S. W. 297; Speicher v. New York Tel. Co., 60 N. J. Law, 242, 59 N. J. Law, 23; Clark v. Fehlhaber, 106 Va. 803. See also Urban v. Focht, 231 Pa. St. 623.

Invitee of licensee: see Brehmer v. Lyman, 71 Vt. 98.

In Cox v. Coulson, [1916] 2 K. B. 177, a spectator in a theatre was injured by the discharge of a pistol during a performance. Bankes, L. J., said: “It seems to me obvious that the duty of the invitor in a case like the present is not only confined to the state of the premises, using that expression as extending to the structure merely. The duty must to some extent extend to the performance given in the structure, because the performance may be of such a kind as to render the structure an unsafe place to be in whilst the performance is going on, or it may be of such a kind as to render the structure unsafe unless some obvious precaution is taken. As an illustration under the latter head I would instance a case where a tight-rope dancer performs on a rope stretched over the heads of the audience. In such a case the provision of a net under the rope to protect the audience in case the performer fell seems so obvious a precaution to take that in the absence of it the premises could not be said to be reasonably safe. In the present case the performance was one which included a discharge of pistols loaded with blank ammunition as one of the incidents. If the pistols had been properly loaded, it is difficult to see that the incident exposed any member of the audience in any ordinarily constructed theatre to any danger. On the other hand, if any one of the pistols was not properly loaded, what would otherwise be a safe performance became an exceedingly dangerous one, and any part of the auditorium might be rendered an extremely unsafe place to be in. Whether the circumstances were such that any negligence or want of proper care can be attributed to the appellant in relation to the loading of the pistol or in relation to the ammunition supplied for that purpose has not been investigated, and I do not think that justice can be done between the parties until this is done.”

[154]. These notices read as follows: “All persons riding on this elevator do so at their own risk.”

[155]. Craney v. Union Stockyards Co., 240 Ill. 602; Kentucky Distilleries Co. v. Leonard, (Ky.) 79 S. W. 281 Accord. But see Burns v. Boston R. Co., 183 Mass. 96; Pike v. Boston R. Co., 192 Mass. 426.

[156]. Statement rewritten. Only so much of the case is given as relates to a single point. The passage in quotation marks is taken from the report of this case in 67 Northeastern Reporter, 863.

[157]. Bell v. Central Nat. Bank, 28 App. D. C. 580; Connolly v. Des Moines Inv. Co., 130 Ia. 633; Branham v. Buckley, 158 Ky. 848; Schnatterer v. Bamberger, 81 N. J. Law. 558 Accord.

[158]. Washington Market Co. v. Clagett, 19 App. D. C. 12; Woods v. Trinity Parish, 21 D. C. 540; Nave v. Flack, 90 Ind. 205; Ford v. Crigler, (Ky.) 74 S. W. 661; Perrine v. Union Stockyards Co., 81 Neb. 790; Kenny v. Hall Realty Co., 85 Misc. 439; Glase v. City, 169 Pa. St. 488 Accord. Compare Larson v. Red River Transportation Co., 111 Minn. 427; Eisenberg v. Missouri R. Co., 33 Mo. App. 85; Henkel v. Murr, 31 Hun, 28; Alperin v. Earle, 55 Hun, 211.

[159]. Moone v. Smith, 6 Ga. App. 649; Mastad v. Swedish Brethren, 83 Minn. 40; Rommel v. Schambacher, 120 Pa. St. 579 Accord.

But compare Woolworth v. Conboy, 170 Fed. 934; Lord v. Sherer Co., 205 Mass. 1.

[160]. Jones v. New York R. Co., 211 Mass. 521; De Boer v. Brooklyn Wharf Co., 51 App. Div. 289 Accord. Compare Hillman v. Boston R. Co., 207 Mass. 478.

This case is often cited as though it decided that the defendant was liable to the plaintiff for harm suffered by the plaintiff on account of a defect in the premises; e. g., defective planks on the crossing. For a more correct view of the real question involved see the able argument of Mr. Thorndike in Stevens v. Nichols, post.

Liability of owner or occupier of a place manifestly intended for public or general use: see Crogan v. Schiele, 53 Conn. 186; Howe v. Ohmart, 7 Ind. App. 32; Davis v. Central Congregational Society, 129 Mass. 367; Holmes v. Drew, 151 Mass. 578; Gordon v. Cummings, 152 Mass. 513; Kelly v. Southern R. Co., 28 Minn. 98; Marsh v. Minneapolis Brewing Co., 92 Minn. 182; Rachmel v. Clark, 205 Pa. St. 314.

Liability of owner or occupier who passively acquiesces in use by others: see White v. France, 2 C. P. D. 308; Alabama R. Co. v. Godfrey, 156 Ala. 202; Herzog v. Hemphill, 7 Cal. App. 116; Pastorello v. Stone, 89 Conn. 286; Etheredge v. Central R. Co., 122 Ga. 853; Nave v. Flack, 90 Ind. 205; Evansville R. Co. v. Griffin, 100 Ind. 221; Martin v. Louisville Bridge Co., 41 Ind. App. 493; Zoebisch v. Tarbell, 10 Allen, 385; Bowler v. Pacific Mills, 200 Mass. 364; Habina v. Twin City Electric Co., 150 Mich. 41; Moore v. Wabash R. Co., 84 Mo. 481, 488; Kelly v. Benas, 217 Mo. 1; Barry v. Calvary Cemetery Assn., 106 Mo. App. 358; Walsh v. Fitchburg R. Co., 145 N. Y. 301; Fox v. Warner Asphalt Co., 204 N. Y. 340; Monroe v. Atlantic R. Co., 151 N. C. 374; Phillips v. Orr, 152 N. C. 583; Railroad Co. v. Harvey, 77 Ohio St. 235; Breckenridge v. Bennett, 7 Kulp (Pa.) 95.

[161]. The report in 155 Mass. 472 does not give any portion of the arguments. The following passages are extracts from the printed brief for the defendants.

[162]. Smith v. London Docks Co., L. R. 3 C. P. 326; Holmes v. Northeastern R. Co., L. R. 4 Ex. 254, L. R. 6 Ex. 123; Wright v. London R. Co., L. R. 10 Q. B. 298, 1 Q. B. D. 252; Berlin Mills v. Croteau, (C. C. A.) 88 Fed. 860; Smith v. Day, (C. C. A.) 100 Fed. 244; Currier v. Trustees, (C. C. A.) 117 Fed. 44; Rhode v. Duff, (C. C. A.) 208 Fed. 115; Middleton v. Ross, (C. C. A.) 213 Fed. 6; Alabama R. Co. v. Godfrey, 156 Ala. 202; Schmidt v. Bauer, 80 Cal. 565; Herzog v. Hemphill, 7 Cal. App. 116; Pauckner v. Wakem, 231 Ill. 276; Franey v. Union Stockyards Co., 235 Ill. 522, 138 Ill. App. 215; Purtell v. Coal Co., 256 Ill. 110; Northwestern R. Co. v. O’Malley, 107 Ill. App. 599; Deach v. Woolner, 187 Ill. App. 524; Faris v. Hoberg, 134 Ind. 269; Baltimore R. Co. v. Slaughter, 167 Ind. 330; Thiele v. McManus, 3 Ind. App. 132; Wilmes v. Chicago R. Co., 175 Ia. 101; Lackat v. Lutz, 94 Ky. 287; Smith v. Trimble, 111 Ky. 861; Kentucky Distilleries Co. v. Leonard, (Ky.) 79 S. W. 281; Bell v. Houston R. Co., 132 La. 88; Dixon v. Swift, 98 Me. 207; Patten v. Bartlett, 111 Me. 409; Elie v. Lewiston R. Co., 112 Me. 178; Plummer v. Dill, 156 Mass. 426; Gauley v. Hall, 168 Mass. 513; Cowen v. Kirby, 180 Mass. 504; Norris v. Nawn Contracting Co., 206 Mass. 58; Lepnick v. Gaddis, 72 Miss. 200; Glaser v. Rothschild, 221 Mo. 180; Davis v. Ringolsky, 143 Mo. App. 364; Bryant v. Missouri R. Co., 181 Mo. App. 189; True v. Meredith Creamery, 72 N. H. 154; Flanagan v. Atlantic Asphalt Co., 37 App. Div. 476; Buchtel College v. Martin, 25 Ohio Cir. Ct. R. 494; Smith v. Sunday Creek Co., 74 W. Va. 606; Ross v. Kanawha R. Co., 76 W. Va. 197; Hupfer v. National Distilling Co., 114 Wis. 279; Muench v. Heinemann, 119 Wis. 441 Accord. See also Blossom v. Poteet, 104 Tex. 230 (wife bringing husband’s dinner to mill where he was employed); Southwestern Cement Co. v. Bustillos, (Tex. Civ. App.) 169 S. W. 638 (child bringing lunch to employee).

But compare Mandeville Mills v. Dale, 2 Ga. App. 607; Furey v. New York Central R. Co., 67 N. J. Law, 270; Gorr v. Mittlestaedt, 96 Wis. 296.

[163]. That is, 155 Mass.

[164]. McClain v. Bank, 100 Me. 437; Moffatt v. Kenny, 174 Mass. 311 Accord.

Hanson v. Spokane Water Co., 58 Wash. 6 Contra. Compare Buckingham v. Fisher, 70 Ill. 121.

Liability to one who has business with an abutting owner who has a right to use the way: see Cavanagh v. Block, 192 Mass. 63.

As to what constitutes an implied invitation, see Bryan v. Stewart, 194 Ala. 353; Baltimore R. Co. v. Slaughter, 167 Ind. 330; Pittsburgh R. Co. v. Simons, 168 Ind. 333; Stanwood v. Clancey, 106 Me. 72; Kalus v. Bass, 122 Md. 467; Walker v. Winstanley, 155 Mass. 301; Plummer v. Dill, 156 Mass. 426; Chenery v. Fitchburg R. Co., 160 Mass. 211; Tracey v. Page, 201 Mass. 62; Shaw v. Ogden, 214 Mass. 475; Romana v. Boston R. Co., 218 Mass. 76; Allen v. Yazoo R. Co., 111 Miss. 267; Black v. Central R. Co., 85 N. J. Law, 197; Heskell v. Auburn Light Co., 209 N. Y. 86.

[165]. The statement has been much abridged.

[166]. Anderson v. Robinson, 182 Ala. 615; Hedskin v. Gillespie, 33 Ind. App. 650; Shackford v. Coffin, 95 Me. 69; Rolfe v. Tufts, 216 Mass. 563; Brady v. Klein, 133 Mich. 422; Korach v. Loeffel, 168 Mo. App. 414 (but see Graff v. Lemp Brewing Co., 130 Mo. App. 618; Marcheck v. Klute, 133 Mo. App. 280); Dustin v. Curtis, 74 N. H. 266; Schick v. Fleischhauer, 26 App. Div. 210; Stelz v. Van Dusen, 93 App. Div. 358; Kushes v. Ginsberg, 99 App. Div. 417; Boden v. Scholtz, 101 App. Div. 1; Mitchell v. Stewart, 187 Pa. St. 217; Davis v. Smith, 26 R. I. 129 Accord. See also Clyne v. Helmes, 61 N. J. Law, 358. Compare Miles v. Janvrin, 196 Mass. 431, 200 Mass. 514; Flanagan v. Welch, 220 Mass. 186.

Sontag v. O’Hare, 73 Ill. App. 432; Schwandt v. Metzger Oil Co., 93 Ill. App. 365 (but see Cromwell v. Allen, 151 Ill. App. 404); Good v. Von Hemert, 114 Minn. 393; Glidden v. Goodfellow, 124 Minn. 101; Keegan v. Heileman Brewing Co., 129 Minn. 496; Merchants Cotton Press Co. v. Miller, 135 Tenn. 187; Lowe v. O’Brien, 77 Wash. 677 Contra. See Moore v. Steljes, 69 Fed. 518.

Liability where landlord makes repairs negligently: see Mann v. Fuller, 63 Kan. 664; Gill v. Middleton, 105 Mass. 477; Thomas v. Lane, 221 Mass. 447; Finer v. Nichols, 175 Mo. App. 525; Carlon v. City Sav. Bank, 85 Neb. 659; Wynne v. Haight, 27 App. Div. 7; Marston v. Frisbie, 168 App. Div. 666; Flam v. Greenberg, (App. Div.) 158 N. Y. Supp. 670; Wilcox v. Hines, 100 Tenn. 538.

[167]. See Hutchinson v. The Newcastle, York, & Berwick Railway Company, 5 Exch. 343; Wiggett v. Fox, 11 Exch. 832.—Reporter’s Note.

[168]. Whether the result in the above case is correct is a question not yet decided in most of the United States, and upon which conflicting opinions have been expressed. See Hart v. Cole, 156 Mass. 475; Knowlton, J., in Coupe v. Platt, 172 Mass. 458, 459; Bigelow on Torts, 7th ed., pp. 362, 363, sections 740–743, 8th ed., p. 158; Burdick on Torts, 3d ed., sect. 555; 2 Shearman & Redfield on Negligence, 4th ed., sect. 706; Barman v. Spencer, (Ind.) 49 N. E. 9, 11, 12; Beard v. Klusmeier, 158 Ky. 153; Land v. Fitzgerald, 68 N. J. Law, 28.

[169]. Pennebaker v. San Joaquin Light Co., 158 Cal. 579; Lunt v. Post Printing Co., 48 Col. 316; Gibson v. Leonard, 143 Ill. 182, 37 Ill. App. 344; Thrift v. Vandalia R. Co., 145 Ill. App. 414; Woodruff v. Bowen, 136 Ind. 431; Hamilton v. Minneapolis Desk Co., 78 Minn. 3; New Omaha Electric Light Co. v. Anderson, 73 Neb. 84; Woods v. Miller, 30 App. Div. 232; Eckes v. Stetler, 98 App. Div. 76; Houston R. Co. v. O’Leary, (Tex. Civ. App.) 136 S. W. 601 Accord. But see Wilson v. Great Southern Tel. Co., 41 La. Ann. 1041.

Liability to police officer or other person in by permission of law: see Casey v. Adams, 234 Ill. 350; Eckels v. Maher, 137 Ill. App. 45; Blatt v. McBarron, 161 Mass. 21; Racine v. Morris, 136 App. Div. 467; Woods v. Lloyd, (Pa.) 16 Atl. 43; Burroughs Adding Machine Co. v. Fryar, 132 Tenn. 612; Greenville v. Pitts, 102 Tex. 1.

But compare Kennedy v. Heisen, 182 Ill. App. 200; Parker v. Barnard, 135 Mass. 116; Learoyd v. Godfrey, 138 Mass. 315; Pickwick v. McCauliff, 193 Mass. 70.

Liability to volunteer salvor in case of fire: see Kohn v. Lovett, 44 Ga. 251; Gibson v. Leonard, 143 Ill. 182.

Liability to person who has contractual right to inspect the premises: see Dashields v. Moses, 35 App. D. C. 583.

[170]. The authorities on all sides of the question raised in this cause are collected and discussed in the cases that follow. See also Pollock, Torts, 6 ed., 496–497; Piggott, Torts, 231–232; 1 Jaggard, Torts, 904–909; Clerk & Lindsell, Torts, 6 ed., 511–522; Salmond, Torts, 4 ed., 415–424; Bohlen, Affirmative Obligations in the Law of Torts, 44 Am. Law Reg. 341.

[171]. The statement of facts by the reporter is omitted.

[172]. The statement of facts is omitted.

[173]. Arguments omitted.

[174]. See an elaborate criticism of George v. Skivington, L. R. 5 Ex. 1, in Blacker v. Lake, 106 Law Times Rep. (N. S.) 533, 537.

[175]. Liability of abstracter to third party injured by mistake or omission in abstract of title: see Thomas v. Guarantee Title & Trust Co., 81 Ohio St. 432; Bremerton Development Co. v. Title Trust Co., 67 Wash. 268.

Liability of water company to injured citizen where it has failed to provide water for extinguishment of fires according to its contract with the municipality: see Sunderland, Liability of Water Companies for Fire Losses, 3 Mich. Law Rev. 442; Kales, Liability of Water Companies for Fire Losses—Another View, 3 Mich. Law Rev. 501; note in 19 Green Bag, 129–133.

[176]. Part of case omitted; also arguments.

On the subject of this section the student may read profitably, Bohlen, Contributory Negligence, 21 Harvard Law Rev. 233; Clark, Tort Liability for Negligence in Missouri, Bull. of Univ. of Mo. Law Series, No. 12, pp. 25–43.

[177]. 1 Q. B. 29, 36.

[178]. Chicago R. Co. v. Levy, 160 Ill. 385; Toledo R. Co. v. Brannagan, 75 Ind. 490; Cincinnati R. Co. v. Butler, 103 Ind. 31 (but changed in case of injuries to the person, Acts of 1899, p. 58, Burns’ Ann. St. § 362); Greenleaf v. Illinois R. Co., 29 Ia. 14 (but changed in case of actions against a common carrier, Suppl. to the Code, 1913, § 3593 a); Brown v. Illinois R. Co., 123 Ia. 239; Dickey v. Maine Tel. Co., 43 Me. 492; Planz v. Boston R. Co., 157 Mass. 377 (but changed by Acts of 1914, ch. 553); Mynning v. Detroit R. Co., 67 Mich. 677; Curran v. Warren Chemical Mfg. Co., 36 N. Y. 153; City v. Nix, 3 Okl. 136; Bovee v. Danville, 53 Vt. 183 Accord.

Contra, contributory negligence an affirmative defence: Inland Coasting Co. v. Tolson, 139 U. S. 551; Montgomery Gaslight Co. v. Montgomery R. Co., 86 Ala. 372; Texas R. Co. v. Orr, 46 Ark. 182; Atchison v. Wills, 21 App. D. C. 548; MacDougall v. Central R. Co., 63 Cal. 431; Moore v. Lanier, 52 Fla. 353; City v. Hudson, 88 Ga. 599; Hopkins v. Utah R. Co., 2 Idaho, 300; St. Louis R. Co. v. Weaver, 35 Kan. 412; Hocum v. Weitherick, 22 Minn. 152; Buesching v. St. Louis Gaslight Co., 73 Mo. 219; Nelson v. City, 16 Mont. 21; O’Brien v. Omaha Water Co., 83 Neb. 71; Valley v. Concord R. Co., 68 N. H. 546; New Jersey Exp. Co. v. Nichols, 33 N. J. Law 434; Jordan v. City, 112 N. C. 743; Carr v. Minneapolis R. Co., 16 N. D. 217; Grant v. Baker, 12 Or. 329; Beatty v. Gilmore, 16 Pa. St. 463; Carter v. Columbia R. Co., 19 S. C. 20; Houston R. Co. v. Cowser, 57 Tex. 293; Richmond Granite Co. v. Bailey, 92 Va. 554; Johnson v. Bellingham Imp. Co., 13 Wash. 455; Fowler v. Baltimore R. Co., 18 W. Va. 579; Hoth v. Peters, 55 Wis. 405.

[179]. As to contributory negligence as a bar to an action for damage caused in part by defendant’s failure to perform a duty imposed on him by statute, see Bishop, Commentaries on the Written Laws, §§ 117, 117 a, § 131, pars. 2, 3, § 134, pars. 3,4, § 139, par. 1; Kelley v. Killourey, 81 Conn. 320; Catlett v. Young, 143 Ill. 74; Shultz v. Griffith, 103 Ia. 150; Hussey v. King, 83 Me. 568; Wadsworth v. Marshall, 88 Me. 263; Schutt v. Adair, 99 Minn. 7; Quimby v. Woodbury, 63 N. H. 370; Kilpatrick v. Grand Trunk R. Co., 72 Vt. 263.

[180]. Only so much of the case is given as relates to a single point.

[181]. Remainder of opinion omitted.

Start, J., in LaFlam v. Missisquoi Pulp Company, 74 Vt. 125. 143: “The defendants, by their second request, asked for an instruction that if, by the exercise of ordinary care and prudence upon the part of the plaintiff, he would not have been injured, he cannot recover. The court instructed the jury, that, if the plaintiff’s want of ordinary care or his negligence contributed in any material degree to the happening of the accident, he is not entitled to recover, even though the defendants were negligent. This was in accordance with the rule as it has sometimes been stated by this court. In Magoon v. Boston & Maine R. R. Co., 67 Vt. 184, 31 Atl. 156, and in Hill v. New Haven, 37 Vt. 507, 88 Am. Dec. 613, it is said that, if the negligence or carelessness of the person injured contributes in any material degree to the production of the injury complained of, he cannot recover; but in Reynolds v. Boston & Maine R. R. Co., 64 Vt. 66, 24 Atl. 134, 33 Am. St. Rep. 908, the holding is that, if the negligence of the plaintiff contributes in the least degree to the accident, there can be no recovery. We think this is the correct rule, and that the instruction should have conformed to it. The use of the word ‘material’ left the jury at liberty to consider the degree of the plaintiff’s negligence, which is not considered permissible in jurisdictions where the doctrine of contributory negligence prevails. To allow jurors to consider so-called degrees of negligence would, in effect, nullify this doctrine. 7 Am. & Eng. Enc. Law, (2d ed.) 379.”

“Negligence contributing as an efficient cause of injury will defeat an action therefor, irrespective of the quantum of negligence of the respective parties.” Jaggard, J., in O’Brien v. St. Paul City R. Co., 98 Minn. 205, 207–208.

“An effect often has many proximate, and many remote, causes. If the negligence of the plaintiff was one of the proximate causes of the injury,—if it directly contributed to the unfortunate result,—he cannot recover, even though the negligence of the defendant also contributed to it.” Sanborn, J., in Missouri Pac. R. Co. v. Moseley, 57 Fed. 921, 925.

“While purporting to give a legal definition of contributory negligence, this instruction demands that such negligence shall be found the sole and direct cause of the accident—an interpretation at war with the term ‘contributory’ itself.” Reyburn, J., in Hanheide v. St. Louis Transit Co., 104 Mo. App. 323, 330.

“... if it appears that his [plaintiff’s] negligence has contributed as an efficient cause to the injury of which he complains, the court will not undertake to balance the negligence of the respective parties for the purpose of determining which was most at fault. The law recognizes no gradations of fault in such case, and where both parties have been guilty of negligence, as a general rule, there can be no recovery. There is really no distinction between negligence in the plaintiff and negligence in the defendant, except that the negligence of the former is called ‘contributory negligence.’” Whittle, J., in Richmond Traction Co. v. Martin’s Adm’r, 102 Va. 209, 213.

“... there was a lack of ordinary care on his [the deceased’s] part, and where this occurs, contributing proximately to the injury, this lack will prevent a recovery, though the negligence of the other party may have much more contributed thereto.” Beard, C. J., in Memphis Gas & Electric Co. v. Simpson, (Tenn.) 109 S. W. 1155, 1158.

American Woolen Co. v. Stewart, (C. C. A.) 217 Fed. 1; Birmingham R. Co. v. Bynum, 139 Ala. 389; St. Louis R. Co. v. Musgrove, 113 Ark. 599; Denver R. Co. v. Maydole, 33 Col. 150; Robinson v. Huber, (Del.) 63 Atl. 873; O’Keefe v. Chicago R. Co., 32 Ia. 467; Pennsylvania R. Co. v. Roney, 89 Ind. 453; Atchison R. Co. v. Henry, 57 Kan. 154; Mann v. City, 154 Ky. 154; Marble v. Ross, 124 Mass. 44; Mynning v. Detroit R. Co., 59 Mich. 257; Hurt v. St. Louis R. Co., 94 Mo. 255; Village v. Holliday, 50 Neb. 229; Pennsylvania R. Co. v. Righter, 42 N. J. Law, 180; St. Louis R. Co. v. Elsing, 37 Okl. 333; Weaver v. Pennsylvania R. Co., 212 Pa. St. 632; Weir v. Haverford Electric Co., 221 Pa. St. 611; McLean v. Atlantic R. Co., 81 S. C. 100; McDonald v. International R. Co., 86 Tex. 1; Hazen v. Rutland R. Co., 89 Vt. 94; Chesapeake R. Co. v. Lee, 84 Va. 642; Franklin v. Engel, 34 Wash. 480; Tesch v. Milwaukee R. Co., 108 Wis. 593 Accord.

[182]. “The doctrine of comparative negligence no longer exists in this state.” Wilkin, J., in City v. Holcomb, 205 Ill. 643, 646.

“The intrinsic difficulty of the subject of contributory negligence has led to three distinct lines of decisions. In England and a majority of the States of the Union, the negligence of the plaintiff which contributes to the injury is held to be an absolute bar to the action. In the States of Illinois and Georgia the doctrine of comparative negligence has been adopted, that is, if on comparing the negligence of the plaintiff with that of the defendant, the former is found to be slight and the latter gross, the plaintiff may recover. In this State we hold that although the injured party may contribute to the injury by his own carelessness or wrongful conduct, yet if the act or negligence of the party inflicting the injury was the proximate cause of the injury, the latter will be liable in damages, the negligence or wrongful conduct of the party injured being taken into consideration, by way of mitigation, in estimating the damages. In other words, if defendant was guilty of a wrong by which plaintiff is injured, and plaintiff was also in some degree negligent or contributed to the injury, it should go in mitigation of damages, but cannot justify or excuse the wrong. East Tennessee, Virginia & Georgia Railroad Company v. Fain, 12 Lea, 35. At the same time we hold that if a party by his own gross negligence bring an injury upon himself, or proximately contribute to such injury, he cannot recover; neither can he recover in cases of mutual negligence where both parties are equally blamable. Id. The principal difference between our rule and the English rule, as modified by the more recent decisions, is in allowing the damages to be mitigated by the conduct of the injured party. In this respect our rule meets the objection which Mr. Thompson, in his notes on contributory negligence, makes to the construction put by some of the courts on the English rule, or to the application of the rule in particular cases. ‘It is,’ he says, ‘nothing more than a declaration that although both parties have been guilty of negligence contributing to the injury, the party who suffered the damage is to be completely exonerated, and the other party is not to be exonerated to any extent; the former is to recover of the latter without any abatement on account of his own share of the fault, all the damages which he has suffered.’ ‘This is,’ he adds, ‘manifest injustice; and yet it is practiced every day in the courts of England and in those of nearly every State in the Union.’ 2 Thompson on Neg. 1155. Our rule, moreover, is merely an adaptation of the law which prevails in civil actions for assault and battery, where the conduct of the plaintiff in the way of provocation is always admissible in evidence to mitigate the damages. Jackaway v. Dula, 7 Yer. 82; Chambers v. Porter, 5 Cold. 273, 280; Suth. on Dam. 745.” Cooper, J., in Louisville R. Co. v. Fleming, 14 Lea, (Tenn.) 128, 135. But see Southern R. Co. v. Pugh, 97 Tenn. 624.

[183]. This refers to § 8657: “Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations....”

[184]. See also Florida, Comp. L., 1914, § 3149; Georgia, Park’s Annotated Code, 1914, §§ 2781 (2332), 2783; Iowa, Supplement to Code, 1913, § 2071; Kansas, Laws of 1911, ch. 239, § 2; Maine, Pub. L. 1910, c. 258, § 4; Mississippi, Laws of 1910, c. 135; Nebraska, Rev. St. 1915, §§ 6054, 7892; Nevada, Rev. L. § 5651 (employees in mines); Ohio, Page & Adams, Ann. Gen. Code, §§ 6245–1, 9018; South Dakota, Laws of 1907, c. 219, § 2; Texas, McEachin’s Civ. St. art. 6649; Virginia, Acts of 1916, ch. 444, § 2; Wisconsin, Stat. 1915, ch. 87, § 1816 (3).

Compare Arkansas, Kirby’s Dig. § 6654; Illinois, R. S. c. 114, § 231; Indiana, Burns’ Ann. St. § 5277 c; Missouri, R. S. (1909) §§ 3164, 3172.

[185]. American Workmen’s Compensation Acts often provide that if the employer does not elect to act under the statute, he shall be liable to an action at law by the injured employee in which contributory negligence shall be no defence. See, for example, Ohio, Page & Adams, Annotated Gen. Code, § 1465–60.

[186]. Portions of opinion omitted. Argument for appellant omitted.

[187]. Planiol, Traité élémentaire de droit civil (6 ed.) II, § 899: “It frequently happens that one who suffers damage through the fault of another is not himself exempt from all fault; he has concurred in the accident and shares responsibility therefor with the other. In this case there is what we call in practice faute commune. This community of fault diminishes the responsibility of the principal author of damage who now only owes a partial reparation.”

German Civil Code, § 254: “If any fault of the injured party has contributed in causing the injury, the obligation to compensate the injured party and the extent of the compensation to be made depends upon the circumstances, especially upon how far the injury has been caused chiefly by the one or the other party.

“This applies also even if the fault of the injured party consisted only in an omission to call the attention of the debtor to the danger of an unusually serious injury which the debtor neither knew nor ought to have known, or in an omission to avert or mitigate the injury....”

[The word “debtor” is used here in the Roman sense, meaning the person bound in any sort of obligation—here the delictual obligation to make reparation for an injury due to fault.]

[188]. See The Drumlanrig, [1911] A. C. 16; Steamship Devonshire v. Barge Leslie, [1912] A. C. 634; St. Louis Packet Co. v. Murray, 144 Ky. 815. But compare Murphy v. Diamond, 3 La. Ann. 441; New York Towboat Co. v. New York R. Co., 148 N. Y. 574; Union Steamship Co. v. Nottingham, 17 Grat. 115.

[189]. The book cites Carth. 194 and 451 in the margin, which references do not bear on the point here in question.—Reporter’s note.

[190]. The usual mode of citation is 1 Q. B.

[191]. “The other instruction was in these words: ‘There is another qualification of this rule of negligence, which it is proper I should mention. Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident; yet the contributory negligence on his part would not exonerate the defendant, and disentitle the plaintiff from recovering, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff’s negligence.’

“The qualification of the general rule, as thus stated, is supported by decisions of high authority, and was applicable to the case on trial.” Gray, J., in Inland Coasting Co. v. Tolson, 139 U. S. 551, 558.

“Although the defendant’s negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years (having been first enunciated in Davies v. Mann, 10 M. & W. 546) that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence.” Lamar, J., in Grand Trunk R. Co. v. Ives, 144 U. S. 408, 429.

[192]. The statement of facts and portions of the opinion are omitted.

[193]. 174 U. S. 379.

[194]. The statement of facts is condensed, and the arguments of counsel and part of the opinion are omitted.

[195]. Only a portion of the opinion is printed.

[196]. The statement of facts is abridged from the statement in the opinion and from the statement made by the reporter. The citations of counsel are omitted.

[197]. “... The wagon so loaded coming to the bridge and being unable to pass underneath it, the train stopped, and those who had charge of it, without looking to ascertain the cause of the stoppage, gave momentum to the engine to such an extent that the wagon with its load knocked the bridge down.” Statement of facts in opinion of Bramwell, B., L. R. 9 Exch. 72. Compare statement in L. R. 10 Exch. 102.

[198]. Printed papers in the case.

[199]. L. R. 9 Ex. 71.

[200]. L. R. 10 Ex. 700.

[201]. Arguments of counsel are omitted.

[202]. L. R. 9 Ex. at 72.

[203]. See also Cayzer v. Carron, 9 App. Cas. 873; McDermaid v. Edinburgh Tramways Co., 22 Sc. L. R. 13.

[204]. Only a portion of the opinion is printed.

[205]. This opinion of Carpenter, J., was given in the Circuit Court; and was quoted by Moore, J., in his dissenting opinion in the Supreme Court.

[206]. “We shall immediately see, moreover, that independent negligent acts of A and B may both be proximate in respect of harm suffered by Z, though either of them, if committed by Z himself, would have prevented him from having any remedy for the other. Thus it appears that the term ‘proximate’ is not used in precisely the same sense in fixing a negligent defendant’s liability and a negligent plaintiff’s disability.” Pollock, Torts, 6th ed. 447.

“... In determining whether the cause of the accident is proximate or remote, the same test must be applied to the conduct of the injured party as is to be applied to the defendant. The conduct of the latter cannot be judged by one rule and that of the former by some other rule.”—O’Brien, J., in Rider v. Syracuse R. Co., 171 N. Y. 139, 154.

[An instruction as to the meaning of the word “proximately” intimates] “that there is a difference between the meaning of the word when applied to the defendant and when applied to the plaintiff. There is no such difference. Contributory negligence on the part of the plaintiff must bear the same proximate relation to the result as the actionable negligence of the defendant. It need not be the sole cause, and it may contribute but slightly, but it must be a proximate cause in the same sense that the defendant’s negligence must be proximate.” Winslow, J., in Boyce v. Wilbur Lumber Co., 119 Wis. 642, 649–650.

[207]. The statement has been abridged and the arguments and part of the opinion are omitted.

[208]. Compare Rider v. Syracuse R. Co., 171 N. Y. 139.

[209]. The statement of facts and argument of counsel are omitted.

[210]. The statement of facts, arguments and parts of the opinions are omitted.

[211]. See also Bruggeman v. Illinois R. Co., 147 Ia. 187, 204–214; Anderson v. Minneapolis R. Co., 103 Minn. 224; Cavanaugh v. Boston R. Co., 76 N. H. 68; Scholl v. Belcher, 63 Or. 310, 323; Underwood v. Old Colony R. Co., 33 R. I. 319. As to the requirement of a “new act of negligence” see Rider v. Syracuse R. Co., 171 N. Y. 139.

[212]. Statement abridged. Only part of opinion is given.

[213]. Statement omitted, also a large part of opinion.

[214]. 85 N. C. 310.

[215]. Statement abridged. Part of opinion omitted.

[216]. The statement has been abridged and the arguments and part of the opinion are omitted.

[217]. See also Weitzman v. Nassau R. Co., 33 App. Div. 585; Green v. Metropolitan R. Co., 42 App. Div. 160.

[218]. Statement abridged.

[219]. In Kierzenkowski v. Philadelphia Traction Co., 184 Pa. St. 459, the plaintiff was a girl three years old, who had been knocked down by one of defendant’s horse cars. The court (inter alia) instructed the jury, in substance, as follows:—

The law does not allow that children of this age can be guilty of contributory negligence; but you are obliged to consider the case as to the negligence alone of the defendant. If you were driving along the street with your horse and wagon, and a child runs under the feet of the horses and is killed, you are not responsible; not because the child is guilty of contributory negligence, but because you are not guilty of negligence. If it is an unavoidable accident, you are not responsible. If the jury believe from the evidence in this case that the child suddenly and unexpectedly appeared in the vicinity of the track under such circumstances that the driver of the car could not have discovered its presence in time to avoid the accident, the verdict must be for the defendant.

An exception to the charge was overruled.

[220]. Birmingham R. Co. v. Brantley, 141 Ala. 614; Baltimore Traction Co. v. Wallace, 77 Md. 435; Lassiter v. Raleigh R. Co., 133 N. C. 244; Memphis R. Co. v. Haynes, 112 Tenn. 712 Accord.

“Let us view this subject in a more concrete form. The last railroad statistics I have been able to find were issued by the Interstate Commerce Commission for the year 1906.

[The learned judge then copies a table from the report referred to and proceeds.]

It will be observed that while the road mileage and train mileage in Canada are each ten per cent of the entire road system and the entire train mileage, the number of trespassers injured or killed in that country was only three per cent of the total number; while in this State the road mileage is twenty-six per cent of the total road mileage and the train mileage twenty-five per cent of the total train mileage, forty-eight per cent of the total number of trespassers injured or killed were injured or killed in Missouri.

Illinois has thirty per cent of the road mileage and thirty-two per cent of the train mileage, and only twenty per cent of the total number of trespassers injured or killed were injured or killed in that State.

It is important to know both the train mileage and the road mileage, for the reason the greater number of trains that are run over a given road mileage the greater number of fatalities to trespassers will result. The train mileage, therefore, in the various States offers the most accurate basis for comparison.

A computation will show that one trespasser was killed for every eighty-one miles of road in Canada; for every seventeen miles in Michigan; for every forty-two miles in Ohio; for every thirty-one miles in Indiana; for every forty-six miles in Illinois; for every seventeen miles in Missouri; and for every forty-one miles in Iowa.

It will be observed that the number of miles for each trespasser killed in Missouri and Michigan is the same. This results, however, from the fact that the line from Chicago, St. Louis, and other points converging at Montpelier, Ohio, and thence all the traffic eastward goes over the one hundred and five miles of line located in the State of Michigan. The effect of this is also shown in the train mileage. Thus, while Michigan has only four per cent of road mileage, it has one-third or six per cent of the train mileage. The population along the Michigan mileage is very dense; about five miles of the line from Delray to Detroit run through a very densely populated district—practically a city.

It should also be noted that while Illinois has greater road and train mileage than Missouri, only sixteen trespassers were injured or killed while walking on tracks in that State, where thirty-nine persons were killed or injured while walking on the track in Missouri. If we also consider the more dense population of Illinois, the figures become more startling. And if we should extend these figures in the same proportion to all of the railroads of the State and country, we would then see the appalling number of trespassers killed and injured annually on account of this inhuman doctrine, which is approximately 7750.

In so far as I have been able to ascertain, the courts of all the other States than this hold that persons who walk upon railroad tracks do so at their peril, and I am thoroughly satisfied and convinced that this fact accounts for the small number of fatalities to track-walkers in those States as compared with Missouri; and by parity of reasoning I am also convinced that if said section 1105 was strictly enforced, as it should be, the contrast between those States and this would not be near so great as it is now; and that if we had a statute like that of Canada, making it a crime for persons to walk upon railroad tracks, then the percentage of fatalities to track-walkers in this State would fall still lower than what it is in any of the States mentioned. Such a policy and such a statute would exclude from the railroads all pedestrians, and thereby save this great sacrifice of life and limb, as well as the pecuniary loss incident thereto.” Woodson, J. (dissenting), in Murphy v. Wabash Railroad Company, 228 Mo. 56, 88, 108.

See also the observations of Professor Clark in University of Missouri Bulletin, Law Series, No. 12, 34–39.

[221]. Birmingham Light & Power Co. v. Jones, 146 Ala. 277; Indianapolis R. Co. v. Boettcher, 131 Ind. 82 Accord.

[222]. Southern R. Co. v. Svendsen, 13 Ariz. 111; Kramm. v. Stockton R. Co., 10 Cal. App. 271; Nehring v. Connecticut Co., 86 Conn. 109; Central R. Co. v. Moore, 5 Ga. App. 562; Heidenreich v. Bremner, 260 Ill. 439; Kansas R. Co. v. Whipple, 39 Kan. 531; Schoolcraft v. Louisville R. Co., 92 Ky. 233; La Barge v. Pere Marquette R. Co., 134 Mich. 139; St. Louis R. Co. v. Ault, 101 Miss. 341; Brendle v. Spencer, 125 N. C. 474; Goodwin v. Atlantic R. Co., 82 S. C. 321; Bolin v. Chicago R. Co., 108 Wis. 333 Accord.

[223]. Carrington v. Louisville R. Co., 88 Ala. 472; Wood v. Los Angeles R. Co., 172 Cal. 15; Rowen v. New York R. Co., 59 Conn. 364; Florida R. Co. v. Hirst, 30 Fla. 1; Louisville R. Co. v. McCoy, 81 Ky. 403; Davis v. Saginaw Bay R. Co., 191 Mich. 131 Accord. Compare Magar v. Hammond, 171 N. Y. 377.

“Mere negligence which gives a cause of action is the doing of an act, or the omission to act, which results in damage, but without intent to do wrong or cause damage. To constitute a wilful injury, there must be design, purpose, intent to do wrong and inflict the injury. Then there is that reckless indifference or disregard of the natural or probable consequence of doing an act, or omission of an act, designated whether accurately or not, in our decisions, as ‘wanton negligence,’ to which is imputed the same degree of culpability and held to be equivalent to wilful injury. A purpose or intent to injure is not an ingredient of wanton negligence. Where either of those exist, if damage ensues, the injury is wilful. In wanton negligence, the party doing the act, or failing to act, is conscious of his conduct, and without having the intent to injure, is conscious, from his knowledge of existing circumstances and conditions, that his conduct will likely or probably result in injury. These are the distinctions between simple negligence, wilful injury, and that wanton negligence which is the equivalent of wilful injury, drawn and applied in our decisions. A mere error of judgment as to the result of doing an act or the omission of an act, having no evil purpose or intent, or consciousness of probable injury, may constitute simple negligence, but cannot rise to the degree of wanton negligence or wilful wrong....” Coleman, J., in Birmingham R. Co. v. Bowers, 110 Ala. 328, 331.

“The mere intentional omission to perform a duty or the intentional doing of an act contrary to duty, although such conduct be culpable and result in injury, without further averment, falls very far short of showing that the injury was intentionally or wantonly inflicted. Unless there was a purpose to inflict the injury, it cannot be said to have been intentionally done; and unless an act is done, or omitted to be done, under circumstances and conditions known to the person, that his conduct is likely to, or probably will result in injury, and through reckless indifference to consequences, he consciously and intentionally does a wrongful act, or omits an act, the injury cannot be said to be wantonly inflicted. These principles have been frequently declared by this court....” Coleman, J., in Memphis R. Co. v. Martin, 117 Ala. 367, 382.

Central R. Co. v. Newman, 94 Ga. 560; Lafayette R. Co. v. Adams, 26 Ind. 76; Chicago R. Co. v. Bills, 118 Ind. 221; Alger v. Duluth-Superior Traction Co., 93 Minn. 314; Jensen v. Denver R. Co., 44 Utah, 100; Boggess v. Chesapeake R. Co., 37 W. Va. 297; Astin v. Chicago R. Co., 143 Wis. 477 Contra. But see Jaggard, J., dissenting, in Anderson v. Minneapolis R. Co., 103 Minn. 224, 230.

“For a motorman to be inattentive to the way ahead of him is so palpably negligent that it partakes of the nature of a reckless and wanton act. Therefore a defendant in an action of this character will not be heard to say that its motorman did not see the situation of the injured person where it was open to his view nor did not realize the peril where the indications would have disclosed it to any reasonable mind. Charged with the knowledge of the peril of another that could have been obtained by the use of ordinary care, a failure on the part of a motorman to make every reasonable effort to avoid injuring the endangered person would be in the highest degree wrongful, since it would be negligence committed with the knowledge that another certainly and immediately would be injured thereby. The principles of right and justice do not tolerate the idea that the negligence of the person imperilled involved in his act of placing himself in position to be injured without giving proper heed to his own safety can coöperate with the negligence of one who comprehending his danger or being in a position to comprehend it by the use of ordinary care and having at hand the means and opportunity of avoiding it, fails to reasonably employ them and by such failure inflicts an injury. Such negligence engrosses the entire field of culpability and eliminates contributory negligence as a factor in the production of the injury. It logically follows from the principles stated that the issue of negligence in the performance of the humanitarian duty must be governed by the rules applicable to ordinary negligence. The determinative question in all such cases is, did the operators of the car use ordinary care to ascertain the peril of the plaintiff and to avoid the injury after they discovered it or should have discovered it? In some of the decisions of the Supreme Court the idea appears to be expressed that in order to find a defendant guilty of a breach of the humanitarian rule the elements of wantonness and wilfulness must appear in its conduct, but as we have attempted to show the mere failure to observe ordinary care in situations of this character is of itself a wanton act since it is abhorrent not only to fundamental principles of law but to the dictates of common humanity. The views expressed are supported by the weight of authority in this state, including the most recent decisions of the Supreme and Appellate courts....” Johnson, J., in Cole v. Metropolitan R. Co., 121 Mo. App. 605, 611.

[224]. Only a portion of the opinion is printed.

[225]. Statement of facts abridged. Arguments omitted. Only such portion of the two opinions of Dixon, C. J., are given as relate to one question. The dissenting opinion of Paine, J., is omitted.

[226]. Vaughan v. Taff Vale R. Co., 3 H. & N. 743; Leroy Fibre Co. v. Chicago R. Co., 232 U. S. 340; Flynn v. San Francisco R. Co., 40 Cal. 14; Fitch v. Pacific R. Co., 45 Mo. 322; Salmon v. Delaware R. Co., 38 N. J. Law, 5; Philadelphia R. Co. v. Schultz, 93 Pa. St. 341 Accord. But see Collins v. New York R. Co., 5 Hun, 499.

In Leroy Fibre Co. v. Chicago R. Co., supra, Holmes, J., (concurring in the result) said:

“If a man stacked his flax so near to a railroad that it obviously was likely to be set fire to by a well-managed train, I should say that he could not throw the loss upon the road by the oscillating result of an inquiry by the jury whether the road had used due care. I should say that although of course he had a right to put his flax where he liked upon his own land the liability of the railroad for a fire was absolutely conditioned upon the stacks being at a reasonably safe distance from the train. I take it that probably many, certainly some, rules of law based on less than universal considerations are made absolute and universal in order to limit those over-refined speculations that we all deprecate, especially where such rules are based upon or affect the continuous physical relations of material things. The right that is given to inflict various inconveniences upon neighboring lands by building or digging, is given, I presume, because of the public interest in making improvement free, yet it generally is made absolute by the common law. It is not thought worth while to let the right to build or maintain a barn depend upon the speculations of a jury as to motives. A defect in the highway, declared a defect in the interest of the least competent travellers that can travel unattended without taking legal risks, or in the interest of the average man, I suppose to be a defect as to all. And as in this case the distinction between the inevitable and the negligent escape of sparks is one of the most refined in the world, I think that I must be right so far, as to the law in the case supposed.

If I am right so far, a very important element in determining the right to recover is whether the plaintiff’s flax was so near to the track as to be in danger from even a prudently managed engine. Here certainly, except in a clear case, we should call in the jury. I do not suppose that any one would call it prudent to stack flax within five feet of the engines or imprudent to do it at a distance of half a mile, and it would not be absurd if the law ultimately should formulate an exact measure, as it has tended to in other instances; (Martin v. District of Columbia, 205 U. S. 135, 139) but at present I take it that if the question I suggest be material we should let the jury decide whether seventy feet was too near by the criterion that I have proposed. Therefore, while the majority answer the first question, No, on the ground that the railroad is liable upon the facts stated as matter of law, I should answer it Yes, with the proviso that it was to be answered No, in case the jury found that the flax, although near, was not near enough to the trains to endanger it if the engines were prudently managed, or else I should decline to answer the question because it fails to state the distance of the stacks.

I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized. See Nash v. United States, 229 U. S. 373, 376, 377. Negligence is all degree—that of the defendant here degree of the nicest sort; and between the variations according to distance that I suppose to exist and the simple universality of the rules in the Twelve Tables or the Leges Barbarorum, there lies the culture of two thousand years.”

Where inflammable matter is brought upon land and kept near the track, see Erickson v. Pennsylvania R. Co., (C. C. A.) 170 Fed. 572; Southern R. Co. v. Wilson, 138 Ala. 510; Railway Co. v. Fire Ass’n, 55 Ark. 163; Cleveland R. Co. v. Scantland, 151 Ind. 488; Boston Excelsior Co. v. Bangor, 93 Me. 52; Peter v. Chicago R. Co., 121 Mich. 324; Kalbfleisch v. Long Island R. Co., 102 N. Y. 520; Southern R. Co. v. Patterson, 105 Va. 6, in accord with the principal case. See also Ross v. Boston R. Co., 6 All. 87.

Macon R. Co. v. McConnell, 27 Ga. 481; Coates v. Missouri R. Co., 61 Mo. 38 (but see Mo. Rev. St. 1909, § 3151); Murphy v. Chicago R. Co., 45 Wis. 222 Contra.

Compare Alabama R. Co. v. Fried, 81 Miss. 314; Louisville R. Co. v. Short, 110 Tenn. 713; San Antonio R. Co. v. Home I. Co., (Tex. Civ. App.) 70 S. W. 999.

[227]. Statement of case abridged. Arguments omitted.

[228]. 116 U. S. 366.

[229]. Little v. Hackett, 116 U. S. 366; Baltimore R. Co. v. Friel, (C. C. A.) 77 Fed. 126; Georgia R. Co. v. Hughes, 87 Ala. 610; Little Rock R. Co. v. Harrell, 58 Ark. 454; Thompson v. Los Angeles R. Co., 165 Cal. 748; Fujise v. Los Angeles R. Co., 12 Cal. App. 207; Woodley v. Baltimore R. Co., 19 D. C. 542; Baltimore R. Co. v. Adams, 10 App. D. C. 97; Chicago R. Co. v. Hines, 183 Ill. 482; Chicago R. Co. v. Leach, 215 Ill. 184; Pittsburgh R. Co. v. Spencer, 98 Ind. 186; Miller v. Louisville R. Co., 128 Ind. 97; Chicago R. Co. v. Groves, 56 Kan. 601; Louisville R. Co. v. Case, 9 Bush, 728; Louisville R. Co. v. Molloy, 122 Ky. 219; Holzab v. New Orleans R. Co., 38 La. Ann. 185; Roby v. Kansas City R. Co., 130 La. 880; Consolidated Gas Co. v. Getty, 96 Md. 683; Cuddy v. Horn, 46 Mich. 596; Galloway v. Detroit Ry., 168 Mich. 343; Flaherty v. Minneapolis R. Co., 39 Minn. 328; Colton v. Willmar R. Co., 99 Minn. 366; Gulf R. Co. v. Barnes, 94 Miss. 484; Becke v. Missouri R. Co., 102 Mo. 544; Sluder v. St. Louis Transit Co., 189 Mo. 107; Bennett v. New Jersey R. Co., 36 N. J. Law, 225; New York R. Co. v. Steinbrenner, 47 N. J. Law, 161; Colegrove v. New York R. Co., 20 N. Y. 492; Webster v. Hudson R. Co., 38 N. Y. 260; Arctic Fire Ins. Co. v. Austin, 69 N. Y. 470; Lewis v. Long Island R. Co., 162 N. Y. 52; Ward v. International R. Co., 206 N. Y. 83; Crampton v. Ivie, 124 N. C. 591; Covington Transfer Co. v. Kelly, 36 Ohio St. 86; Chickasha R. Co. v. Marshall, 43 Okl. 192; Dean v. Pennsylvania R. Co., 129 Pa. St. 514; Bunting v. Hogsett, 139 Pa. St. 363; Markham v. Houston Navigation Co., 73 Tex. 247; Gulf R. Co. v. Pendry, 87 Tex. 553; New York R. Co. v. Cooper, 85 Va. 939; Croft v. Northwestern Steamship Co., 20 Wash. 175 Accord.

[230]. Statement abridged. Greater part of opinion omitted.

[231]. Elyton Land Co. v. Mingea, 89 Ala. 521; Birmingham R. Co. v. Baker, 132 Ala. 507; Hot Springs R. Co. v. Hildreth, 72 Ark. 572; Farley v. Wilmington R. Co., 3 Pennewill 581; Porter v. Jacksonville Electric Co., 64 Fla. 409; Roach v. Western R. Co., 93 Ga. 785; West Chicago R. Co. v. Dougherty, 209 Ill. 241; Nonn v. Chicago R. Co., 232 Ill. 378; Yeates v. Illinois R. Co., 241 Ill. 205; Cincinnati R. Co. v. Cook, 44 Ind. App. 303; Larkin v. Burlington R. Co., 85 Ia. 492; Withey v. Fowler, 164 Ia. 377; City v. Hatch, 57 Kan. 57; Williams v. Withington, 88 Kan. 809; City v. Bott, 151 Ky. 578; State v. Boston R. Co., 80 Me. 430; Denis v. Lewiston R. Co., 104 Me. 39; Philadelphia R. Co. v. Hogeland, 66 Md. 149; United Railways v. Biedler, 98 Md. 564; Randolph v. O’Riordan, 155 Mass. 331; McKernan v. Detroit R. Co., 138 Mich. 519; Follman v. City, 35 Minn. 522; Dickson v. Missouri R. Co., 104 Mo. 491; Petersen v. St. Louis Transit Co., 199 Mo. 331; Farrar v. Metropolitan R. Co., 249 Mo. 210; Loso v. County, 77 Neb. 466; Noyes v. Town, 64 N. H. 361; Noonan v. Consolidated Traction Co., 64 N. J. Law, 579; Dyer v. Erie R. Co., 71 N. Y. 228; Geary v. Metropolitan R. Co., 84 App. Div. 514; Robinson v. Metropolitan R. Co., 91 App. Div. 158; Ward v. Brooklyn R. Co., 119 App. Div. 487; Morris v. Metropolitan R. Co., 63 App. Div. 78; Terwilliger v. Long Island R. Co., 152 App. Div. 168; Kammerdiener v. Rayburn, 233 Pa. St. 328; Sieb v. Central Traction Co., 47 Pa. Super. Ct. 228; Wilson v. Puget Sound R. Co., 52 Wash. 522 Accord.

See McLaughlin v. Pittsburgh R. Co., 252 Pa. St. 32.

[232]. Davis v. Chicago R. Co., (C. C. A.) 159 Fed. 10; Rebillard v. Minneapolis R. Co., 216 Fed. 503; Ewans v. Wilmington R. Co., 7 Pennewill 458; Brannen v. Kokomo Road Co., 115 Ind. 115; Holden v. Missouri R. Co., 177 Mo. 456; Brickell v. New York R. Co., 120 N. Y. 290; Caminez v. Brooklyn R. Co., 127 App. Div. 138; Doctoroff v. Metropolitan R. Co., 55 Misc. 215; Southern R. Co. v. Jones, 118 Va. 685; Wilson v. Puget Sound R. Co., 52 Wash. 522; Warth v. Jackson County Court, 71 W. Va. 184 Accord.

See Atlantic R. Co. v. Ironmonger, 95 Va. 625.

[233]. City v. Thuis, 28 Ind. App. 523; Bush v. Union R. Co., 62 Kan. 709; Yarnold v. Bowers, 186 Mass. 396; Peabody v. Haverhill R. Co., 200 Mass. 277; Lundergan v. New York R. Co., 203 Mass. 460; Fogg v. New York R. Co., 223 Mass. 444; Marsh v. Kansas City R. Co., 104 Mo. App. 577; Meenagh v. Buckmaster, 26 App. Div. 451; Cunningham v. Erie R. Co., 137 App. Div. 506 Accord.

Driver known to be incompetent, see: Cahill v. Cincinnati R. Co., 92 Ky. 345.

Passenger unknown to driver, see: Cincinnati R. Co. v. Wright, 54 Ohio St. 181.

[234]. Pyle v. Clark, (C. C. A.) 79 Fed. 744; Dale v. Denver Tramway Co., (C. C. A.) 173 Fed. 787; North Alabama Traction Co. v. Thomas, 164 Ala. 191; Lininger v. San Francisco R. Co., 18 Cal. App. 411; Tonsley v. Pacific Electric Co., 166 Cal. 457; Parmenter v. McDougall, 172 Cal. 306; Denver Tramway Co. v. Armstrong, 21 Col. App. 640; Sampson v. Wilson, 89 Conn. 707; Metropolitan R. Co. v. Powell, 89 Ga. 601; Southern R. Co. v. King, 128 Ga. 383: Chicago R. Co. v. Condon, 121 Ill. App. 440; Dudley v. Peoria R. Co., 153 Ill. App. 619; Town v. Musgrove, 116 Ind. 121; Lake Shore R. Co. v. Boyts, 16 Ind. App. 640; Nisbet v. Town, 75 Ia. 314; Hubbard v. Bartholomew, 163 Ia. 58; Corley v. Atchison R. Co., 90 Kan. 70; Bevis v. Vanceburg Tel. Co., 121 Ky. 177; Illinois R. Co. v. Wilkins, 149 Ky. 35; Sykes v. Maine R. Co., 111 Me. 182; United R. Co. v. Cram, 123 Md. 332; Chadbourne v. Springfield R. Co., 199 Mass. 574; Ingalls v. Lexington R. Co., 205 Mass. 73; Alabama R. Co. v. Davis, 69 Miss. 444; Mittelsdorfer v. West Jersey R. Co., 77 N. J. Law, 698; Weber v. Philadelphia R. Co., 88 N. J. Law, 398; Robinson v. New York R. Co., 66 N. Y. 11; Noakes v. New York R. Co., 121 App. Div. 716; Zimmerman v. Union R. Co., 28 App. Div. 445; Mack v. Town, 98 App. Div. 577; Jerome v. Hawley, 147 App. Div. 475; Duval v. Atlantic R. Co., 134 N. C. 331; Ouverson v. City, 5 N. D. 281; Toledo R. Co. v. Mayers, 93 Ohio St. 304; Tonseth v. Portland R. Co., 70 Or. 341; Little v. Central Tel. Co., 213 Pa. St. 229; Walsh v. Altoona R. Co., 232 Pa. St. 479; Wachsmith v. Baltimore R. Co., 233 Pa. St. 465; Trumbower v. Lehigh Transit Co., 235 Pa. St. 397; Hermann v. Rhode Island Co., 36 R. I. 447; Latimer v. County, 95 S. C. 187; Turnpike Co. v. Yates, 108 Tenn. 428; Missouri R. Co. v. Rogers, 91 Tex. 52; Lochhead v. Jensen, 42 Utah 99; Atwood v. Utah R. Co., 44 Utah 366 Accord.

Kneeshaw v. Detroit R. Co., 169 Mich. 697; Colborne v. United R. Co., 177 Mich. 139; Granger v. Farrant, 179 Mich. 19 (but compare Hampel v. Detroit R. Co., 138 Mich. 1); Whittaker v. City, 14 Mont. 124; Omaha R. Co. v. Talbot, 48 Neb. 627; Prideaux v.. City, 43 Wis. 513; Otis v. Town, 47 Wis. 422; Ritger v. City, 99 Wis. 190; Lightfoot v. Winnebago Traction Co., 123 Wis. 479; Lauson v. Town, 141 Wis. 57 Contra.

As to whether the negligence of an agent or servant will be imputed to a principal or employer not personally culpable, see also: Siegel v. Norton, 209 Ill. 201; Moore v. Stetson, 96 Me. 197; Bjbjian v. Woonsocket Rubber Co., 164 Mass. 214; Philip v. Heraty, 135 Mich. 446; Fero v. Buffalo R. Co., 22 N. Y. 209.

Contributory negligence of agent or servant in sole charge of the property injured, see: Kennedy v. Alton Traction Co., 180 Ill. App. 146; Toledo R. Co. v. Goddard, 25 Ind. 185; Louisville R. Co. v. Stommel, 126 Ind. 35; Young v. County, 137 Ia. 515; Dunn v. Old Colony R. Co., 186 Mass. 316; La Riviere v. Pemberton, 46 Minn. 5; Johnson v. Atchison R. Co., 117 Mo. App. 308; Page v. Hodge, 63 N. H. 610; Smith v. New York R. Co., 4 App. Div. 493; Puterbaugh v. Reasor, 9 Ohio St. 484; Hawley v. Sumpter R. Co., 49 Or. 509. Compare Gress v. Philadelphia R. Co., 228 Pa. St. 482 (care of injured child delegated to another child, whose negligence contributed).

As to when negligence of the servant is imputed to the master, see also: Sims v. Macon R. Co., 28 Ga. 93 (slave); Read v. City, 115 Ga. 366; Potter v. Ft. Wayne Traction Co., 43 Ind. App. 427; City v. Bott, 151 Ky. 578; Markowitz v. Metropolitan R. Co., 186 Mo. 350; Moon v. St. Louis Transit Co., 237 Mo. 425; Reed v. Metropolitan R. Co., 58 App. Div. 87; Wood v. Coney Island R. Co., 133 App. Div. 270; Crampton v. Ivie, 126 N. C. 894. Compare Snyder Ice Co. v. Bowron, (Tex. Civ. App.) 156 S. W. 550.

Whether husband’s negligence will be imputed to the wife, see: McFadden v. Santa Ana R. Co., 87 Cal. 464; Basler v. Sacramento Gas Co., 158 Cal. 514; Joliet v. Seward, 86 Ill. 402; Yahn v. Ottumwa, 60 Ia. 429 (see also Nesbit v. Garner, 75 Ia. 314; Willfong v. Omaha R. Co., 116 Ia. 548); Denton v. Missouri R. Co., 90 Kan. 51; Livingston v. Philley, 155 Ky. 224; Ploetz v. Holt, 124 Minn. 169; Moon v. St. Louis Transit Co., 237 Mo. 425; Johnson v. Springfield Traction Co., 176 Mo. App. 174; Hajsek v. Chicago R. Co., 68 Neb. 539, 5 Neb. Unoff. 67; Pennsylvania R. Co. v. Goodenough, 55 N. J. Law, 577; Horandt v. Central R. Co., 78 N. J. Law, 190; Carlisle v. Sheldon, 38 Vt. 440.

Imputed negligence as between fellow servants, see: Nonn v. Chicago R. Co., 232 Ill. 378; Ford v. Hine, 237 Ill. 463; Paducah Traction Co. v. Sine, (Ky.) 111 S. W. 356; City v. Heitkemper, 169 Ky. 167; Earp v. Phelps, 120 Md. 282; Siever v. Pittsburgh R. Co., 252 Pa. St. 1; Landry v. Great Northern R. Co., 152 Wis. 379; Sommerfeld v. Chicago R. Co., 155 Wis. 102.

Whether bailor barred by contributory negligence of bailee, see: Svea Ins. Co. v. Vicksburgh R. Co., 153 Fed. 774; Henderson v. Chicago R. Co., 170 Ill. App. 616; Welty v. Indianapolis R. Co., 105 Ind. 55; Illinois R. Co. v. Sims, 77 Miss. 325; Spelman v. Delano, 177 Mo. App. 28; Forks Township v. King, 84 Pa. St. 230; Gibson v. Bessemer R. Co., 226 Pa. St. 198; Texas R. Co. v. Tankersley, 63 Tex. 57.

Consignor and consignee, see McCarthy v. Louisville R. Co., 102 Ala. 193.

Lessor and lessee, see Higgins v. Los Angeles Gas Co., 159 Cal. 651; Contos v. Jamison, 81 S. C. 488.

[235]. See Alabama R. Co. v. Hanbury, 161 Ala. 358; Louisville R. Co. v. Armstrong, 127 Ky. 367; Beaucage v. Mercer, 206 Mass. 492; Ward v. Meads, 114 Minn. 18; Schron v. Staten Island R. Co., 16 App. Div. 11; Christopherson v. Minneapolis R. Co., 28 N. D. 128; Wentworth v. Town, 90 Vt. 60; Washington R. Co. v. Zell, 118 Va. 755.

According to the decision in Shindelus v. St. Paul City R. Co., 80 Minn. 364, if any of the young men of the party in the Koplitz case had sued the city, the negligence of Gibbons would have been imputed to them.

Compare Laurence v. Sioux City, 172 Ia. 320; Scheib v. New York R. Co., 115 App. Div. 578; Kansas City R. Co. v. Durrett, (Tex. Civ. App.) 187 S. W. 427.

[236]. Statement abridged. Arguments omitted; also portions of opinion.

[237]. Chicago R. Co. v. Kowalski, (C. C. A.) 92 Fed. 310; Pratt Coal Co. v. Brawley, 83 Ala. 371; St. Louis R. Co. v. Rexroad, 59 Ark. 180; Daley v. Norwich R. Co., 26 Conn. 591; Jacksonville Electric Co. v. Adams, 50 Fla. 429; Ferguson v. Columbus R. Co., 77 Ga. 102; Chicago R. Co. v. Wilcox, 138 Ill. 370; Evansville v. Senhenn, 151 Ind. 42 (overruling earlier cases contra); Ives v. Welden, 114 Ia. 476; Union R. Co. v. Young, 57 Kan. 168 (older cases contra); South Covington R. Co. v. Herrklotz, 104 Ky. 400; Westerfield v. Levis, 43 La. Ann. 63; Shippy v. Au Sable, 85 Mich. 280; Mattson v. Minnesota R. Co., 95 Minn. 477 (overruling older cases contra); Westbrook v. Mobile R. Co., 66 Miss. 560; Winters v. Kansas City R. Co., 99 Mo. 509; Neff v. City, 213 Mo. 350; Huff v. Ames, 16 Neb. 139; Warren v. Manchester R. Co., 70 N. H. 352; Bottoms v. Seaboard R. Co., 114 N. C. 699; Bellefontaine R. Co. v. Snyder, 18 Ohio St. 399; Erie R. Co. v. Schuster, 113 Pa. St. 412; Whirley v. Whiteman, 1 Head, 610; Galveston R. Co. v. Moore, 59 Tex. 64; Robinson v. Cone, 22 Vt. 213; Norfolk R. Co. v. Ormsby, 27 Grat. 455; Dicken v. Liverpool Coal Co., 41 W. Va. 511 Accord.

Meeks v. So. Pac. R. Co., 52 Cal. 602; O’Brien v. McGlinchy, 68 Me. 552; Baltimore R. Co. v. McDonnell, 43 Md. 534; Wright v. Malden R. Co., 4 All. 283; Cotter v. Lynn R. Co., 180 Mass. 145 (but see Mass. Acts 1914, c. 553); Hartfield v. Roper, 21 Wend. 615; Parishi v. Eden, 62 Wis. 272; Kuchler v. Milwaukee Electric Co., 157 Wis. 107 Contra.

As to the limits of the rule in the jurisdictions that follow Hartfield v. Roper, see McNeil v. Boston Ice Co., 173 Mass. 570; O’Brien v. McGlinchy, 68 Me. 552; Ihl v. Forty-Second Street Ferry, 47 N. Y. 317; McGarry v. Loomis, 63 N. Y. 104.

[238]. Savannah Electric Co. v. Dixon, (Ga.) 89 S. E. 373; Smith v. Marion Bottle Co., 84 Kan. 551 Accord.

[239]. At common law, no civil action could be maintained for wrongfully causing the death of a human being. Following the English act of 1846, known as Lord Campbell’s Act (9 & 10 Vict. c. 93) statutes in all jurisdictions now provide an action for the benefit of specified relatives of a deceased person against one who tortiously caused his death. In Tiffany, Death by Wrongful Act, 2 Edition, 1913, these statutes are printed in full in the appendix. The book also contains an analytical table of the statutes.

Sometimes the relatives are authorized to sue in person; while in other statutes it is provided that the action shall be brought by an administrator of the estate of the deceased. But, even under the latter class of statutes, the sum recovered does not usually become a part of the general assets of the estate available for the payment of creditors (unless, perhaps, in the absence of any relatives). In some instances the statute provides that an action can be brought only in case the person killed could have maintained an action if death had not ensued. But, even where the statute does not contain an explicit provision of the above nature, the courts generally hold that contributory negligence on the part of the deceased bars the statutory action. The question remains: Will the contributory negligence of the sole beneficiary bar the action, either where he is personally plaintiff, or where he is plaintiff in his capacity as administrator of the deceased, or where the plaintiff is a third person suing in the capacity of administrator?

The statutes of a few states may, perhaps, be construed as proceeding upon the theory that a right of action is vested in the deceased, and that provision is now made for the survival of such right of action.

[240]. Wymore v. Mahaska County, 78 Ia. 396. The material provisions of the statute involved in that case were:—

Section 3730, McClain’s Annotated Code of Iowa. All causes of action shall survive, and may be brought, notwithstanding the death of the person entitled or liable to the same.

Section 3731.... When a wrongful act produces death, the damages shall be disposed of as personal property belonging to the estate of the deceased, except that if the deceased leaves a husband, wife, child, or parent, it shall not be liable for the payment of debts.

Section 3732. The actions contemplated in the two preceding sections may be brought, or the court, on motion, may allow the action to be continued, by or against the legal representatives or successors in interest of the deceased. Such action shall be deemed a continuing one, and to have accrued to such representative or successor at the same time it did to the deceased if he had survived....

Section 3761. A father, or, in case of his death or imprisonment or desertion of his family, the mother, may prosecute as plaintiff an action for the expenses and actual loss of service resulting from the injury or death of a minor child.

[241]. Southern R. Co. v. Shipp, 169 Ala. 327; Nashville Lumber Co. v. Busbee, 100 Ark. 76 Accord. See Macdonald v. O’Reilley, 45 Or. 589. In Warren v. Street R., 70 N. H. 352, 362, Pike, J., said: “The child’s cause of action survived by reason of the statute, and the money recovered in it will be assets in the hands of its administrator, to be distributed in accordance with the special provisions of the statute. If the father’s negligence barred his right to recover in this action, there would seem to be no reason why it would not bar him from recovering any property of the child which he might inherit under the general provisions relating to descent and distribution, but this is not claimed to be and is not the law.”

[242]. Lee v. New River Coal Co., (C. C. A.) 203 Fed. 644; Chicago R. Co. v. Logue, 158 Ill. 621; True v. Woda, 201 Ill. 315; Gibbons v. Williams, 135 Mass. 333; Tucker v. Draper, 62 Neb. 66; Davis v. Seaboard R. Co., 136 N. C. 115; Scherer v. Schlaberg, 18 N. D. 421; Bamberger v. Citizens’ R. Co., 95 Tenn. 18; Palmer v. Oregon R. Co., 34 Utah, 466; Ploof v. Burlington Traction Co., 70 Vt. 509; Vinnette v. Northern R. Co., 47 Wash. 320; Gunn v. Ohio R. Co., 42 W. Va. 676 Accord.

“The right of recovery and measure of damages are different from what existed in the intestate. This right of recovery did not exist at common law. It is wholly given by the act. It is not an act to cause to survive a right of recovery which otherwise would be taken away by the death of the injured.... Hence the contention that the recovery is in the right of the intestate, and can be defeated only by his contributory negligence, cannot be sustained.... From a very early day the common law has denied a recovery, as unjust, to a party whose negligence has contributed to the accident causing the injury for which he demands damages. All statutes conferring a right of recovery of damages, especially when in terms they give such damages only as are just, must be read and considered with reference to this universal principle of the common law.” Ross, C. J., in Ploof v. Burlington Traction Co., 70 Vt. 509, 516, 517.

“Shall the state say to the father, ‘If you know that your child is in danger of injury from the negligence of others, you are under no legal obligation to protect it from such injury, and if you allow the child to be killed, you may recover, from one who is equally at fault with yourself, for any pecuniary injury you may suffer by reason of the death?’ No such meaning can be derived from the statute.” Sedgwick, C., in Tucker v. Draper, 62 Neb. 66, 67.

See Wigmore, Contributory Negligence of the Beneficiary as a Bar to an Administrator’s Action for Death, 2 Illinois Law Rev. 487.

As to recovery where third person is administrator and there is negligence on the part of the sole beneficiary or all the beneficiaries, see: Toledo R. Co. v. Grable, 88 Ill. 441; Feldman v. Detroit R. Co., 162 Mich. 486; Davis v. Seaboard R. Co., 136 N. C. 115; Wolf v. Lake Erie R. Co., 55 Ohio St. 517; Gunn v. Ohio R. Co., 42 W. Va. 676. Contra: Wymore v. Mahaska County, 78 Ia. 396; McKay v. Syracuse R. Co., 208 N. Y. 359.

As to recovery where some of the beneficiaries are negligent and others not, see: Phillips v. Denver Tramway Co., 53 Col. 458; Love v. Detroit R. Co., 170 Mich. 1; Wolf v. Lake Erie R. Co., 55 Ohio St. 517; Darbrinsky v. Pennsylvania Co., 248 Pa. St. 503.

[243]. See Broschart v. Tuttle, 59 Conn. 1; Dudley v. Northampton, 202 Mass. 443, 449.

[244]. The arguments are omitted.

[245]. Hinckley v. Penobscot, 42 Me. 89; Smith v. Boston R. Co., 120 Mass. 490 (injury to passenger travelling on train in violation of Sunday law) Accord.

“The provisions of chapter ninety-eight of the Public Statutes relating to the observance of the Lord’s day shall not constitute a defence to an action for a tort or injury suffered by a person on that day.” Mass. Acts 1884, c. 57, § 1.

[246]. The arguments are omitted; also that part of the opinion which relates to the question of contributory negligence.

[247]. Atlanta Steel Co. v. Hughes, 136 Ga. 511 (plaintiff working on Sunday); Black v. Lewiston, 2 Idaho, 276; Louisville R. Co. v. Buck, 116 Ind. 566 (plaintiff working on Sunday); Chicago R. Co. v. Graham, 3 Ind. App. 28; Schmid v. Humphrey, 48 Ia. 652; Taylor v. Star Coal Co., 110 Ia. 40 (plaintiff working on Sunday); City v. Orr, 62 Kan. 61; Illinois R. Co. v. Dick, 91 Ky. 434 (plaintiff working on Sunday); Opsahl v. Judd, 30 Minn. 126; Corey v. Bath, 35 N. H. 530; Delaware R. Co. v. Trautwein, 52 N. J. Law, 169; Platz v. City, 89 N. Y. 219; Mohney v. Cook, 26 Pa. St. 342; Baldwin v. Barney, 12 R. I. 392; Hoadley v. International Paper Co., 72 Vt. 79 (plaintiff working on Sunday) Accord.

In Johnson v. Town of Irasburgh, 47 Vt. 28, the Supreme Court of Vermont, while agreeing with the reasoning in Sutton v. Wauwatosa, on the question of causation, nevertheless reached the same result as in Bosworth v. Swansey, holding that the plaintiff was not entitled to recover. This conclusion was arrived at upon grounds which were not discussed in the above Wisconsin and Massachusetts cases. The very able opinion of Ross, J., upon this point (47 Vt. 35–38), may be summarized as follows:—

The liability of the town for the insufficiency of the highway is purely statutory. The duty to travellers imposed by the statute is only a duty to that class of travellers who have the right to pass, to those who are legally travelling. The legislature did not intend to impose a duty upon towns “in behalf of a person who was forbidden to use all highways for the purposes of travel, and at a time when he was so forbidden to use them. Can he be a traveller within the purview of the statute who is forbidden to travel?” The duty and liability “are co-extensive with the purposes for which persons can legitimately use the highways, and no greater.” “The plaintiff when injured was forbidden by law to use the highway, and by reason thereof the defendant town owed him no duty to provide any kind of a highway, and therefore was under no liability for any insufficiency in any highway.”

[248]. Section 3 of this statute is as follows:—

“The officers and men of the Boston Protective Department, with their teams and apparatus, shall have the right of way, while going to a fire, through any street, lane, or alley in the city of Boston, subject to such rules and regulations as the city council and the fire commissioners may prescribe, and subject also to the rights of the Boston Fire Department; and any violation of the street rights of the Boston Protective Department shall be punished in the same manner as is provided for the punishment of violations of the rights of the Boston Fire Department in chapter three hundred and seventy-four of the acts of eighteen hundred and seventy-three.”

[249]. Monroe v. Hartford R. Co., 76 Conn. 201; Tackett v. Taylor, 123 Ia. 149; Baker v. Portland, 58 Me. 199; Bourne v. Whitman, 209 Mass. 155; Chesapeake R. Co. v. Jennings, 98 Va. 70 Accord.

[250]. Atlantic R. Co. v. Weir, 63 Fla. 69; Lockridge v. Minneapolis R. Co., 161 Ia. 74 Accord. See Lindsay v. Cecchi, 3 Boyce, 133; Hyde v. McCreery, 145 App. Div. 729.

In Bourne v. Whitman, 209 Mass. 155, a duly licensed automobile was being driven by an unlicensed person. Knowlton, C. J., said:

“It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator, as to all consequences that the statute was intended to prevent. It has been said in a general way that such a violation is evidence of negligence of the violator, and it has sometimes been stated that this would show negligence that can be availed of as a ground of recovery by one who suffers any kind of an injury from him while this illegality continues; but it is now settled that it is not even evidence of negligence, except in reference to matters to which the statute relates. Davis v. John L. Whiting & Son Co., 201 Mass. 91, 96 and cases cited. A criminal statute in the usual form is enacted for the benefit of the public. It creates a duty to the public. Every member of the public is covered by the protecting influence of the obligation. If one suffers injury as an individual, in his person or his property, by a neglect of this duty, he has a remedy, not because our general criminal laws are divided in their operation, creating one duty to the public and a separate duty to individuals; but because as one of the public in a peculiar situation, he suffers a special injury, different in kind from that of the public generally, from the neglect of the public duty....

If we consider the effect of such a violation of law by a plaintiff, upon his right to recover, the principles that have been recognized are instructive. They were considered long ago in connection with our Sunday law. It has been established from early times that one who is violating a criminal law cannot recover for an injury to which his criminality was a directly contributing cause....

The only matter which seems to be left doubtful under our decisions in this class of cases, is what constitutes ‘illegality,’ which is sometimes a directly contributing cause of the injury. Some cases have been decided, which seem to imply that if there is an illegal element entering into a plaintiff’s act or conduct, and this act or conduct directly contributes to his injury, he cannot recover, although the illegal element or the objectionable quality of the act had no tendency to produce the injury, and the consequences would have been the same under the other existing conditions, if the criminal element had been absent. In other cases the decision seems to turn upon whether the criminal element in the act or conduct, considered by itself alone, operated as a direct cause to produce a result that would not have been produced under the same conditions in other respects, if the criminal element had been absent. This latter seems to be the pivotal question in most cases decided in other States.

The fact that the number of punishable misdemeanors has multiplied many times in recent years, as the relations of men in business and society have grown complex with the increase of population, is a reason why the violation of a criminal statute of slight importance should not affect one’s civil rights, except when this violation, viewed in reference to the element of criminality intended to be punished, has had a direct effect upon his cause of action. Our decisions seem to have been tending toward the adoption of such a rule. Welch v. Wesson, 6 Gray, 505. Spofford v. Harlow, 3 Allen, 176. Steele v. Burkhardt, 104 Mass. 59. Damon v. Scituate, 119 Mass. 66. Hall v. Ripley, 119 Mass. 135. Dudley v. Northampton Street Railway, 202 Mass. 443, 446. Moran v. Dickinson, 204 Mass. 559, 562. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 157.

Under particular statutes, we are brought back to the question, what is the legal element which is the essence of the command or prohibition? In most cases, the effect of doing or failing to do that which the law forbids or requires under a penalty, when considered in reference to its relation to one’s civil rights in collateral matters, ought to be limited pretty strictly. Take the case of driving without sleigh bells in violation of the law of the road. R. L., c. 54, § 3. Kidder v. Dunstable, 11 Gray, 342. Counter v. Couch, 8 Allen, 436, 437. The requirement of the law is that ‘No person shall travel on a bridge or way with a sleigh or sled drawn by a horse, unless there are at least three bells attached to some part of the harness.’ The wrong to be prevented is the failure to have bells while travelling in this way. The travelling in other respects is unobjectionable. The question arises whether the act should be deemed illegal as a whole, in reference to the rule that the courts will not aid one to obtain the fruits of his disobedience of law, or whether in this aspect its different qualities may be considered separately. It is possible to decide this question either way, but we think it is more consistent with justice and with the course of decision elsewhere, to hold that, in reference to the law of negligence and the rule as to rejection of causes of action that are founded on illegality, an act may be considered in its different aspects in its relation to the cause of action, and if only that part of it which is innocent affects the cause of action, the existence of an illegal element is immaterial. We do not think, under this statute, that one who drives in a sleigh without bells should be treated as a trespasser on the highway, although he is punishable criminally for the failure to have the bells attached to the harness, and is liable in damages to any member of the public who suffers a special injury by reason of this failure.

Consider the St. 1909, c. 514, § 74, which forbids, under a penalty, the regular operation of any elevator by a person under the age of sixteen years, and the regular operation of any rapidly running elevator by a person under the age of eighteen years. If a person under the prescribed age, while employed to operate an elevator, is injured through the negligence of the owner, in leaving it in an unsafe condition, shall his violation of the statute by entering this service before reaching the prescribed age, be treated as criminality, entering into every one of his acts in moving the elevator, so as to prevent his recovery for an injury from the joint effect of his employer’s negligence and his own application of the power to raise or lower the elevator? We think it better to hold, if his age and the degree of his competency, which might depend in part upon his age, had no causal connection with the injury, that his criminality was not a direct cause of the injury. In other words, that the punishable element in the act is only disobedience as to age, and although his act in applying the power to the elevator which brought him in contact with the defect, is punishable, and in a sense illegal because of the existence of that element, in determining the relation of his conduct to the cause of action, to see whether the court will aid him in the prosecution of it, we ought to limit the illegality to that part of his conduct towards which the statute is particularly directed. We are to consider the specific thing at which the statute is aimed, and the immediate effect that it was intended directly and proximately to accomplish by its command or prohibition....

Take the provision in St. 1903, c. 473, § 5, that ‘No person shall operate an automobile or motor cycle for hire, unless specially licensed by the commission so to do,’ and the earlier provision in the same section that no person shall ‘operate an automobile or motor cycle upon any public highway or private way laid out under authority of statute unless licensed so to do under the provisions of this act.’ The operating of the automobile in itself is unobjectionable. The illegal element in the act is the failure to have a license. The purpose of the requirement of a license is to secure competency in the operator. If in any case the failure to have a license, looking to those conditions that ordinarily accompany the failure to have it, is a cause contributing directly to an injury, a violator of the law would be legally responsible to another person injured by the failure; or, if he is injured himself, would be precluded from recovery against another person who negligently contributed to the injury. But we are of opinion that his failure in that respect is only evidence of negligence in reference to his fitness to operate a car, and to his skill in the actual management of it, unless in the case of the plaintiff, it is shown to be a contributing cause to the injury sued for, in which case it is a bar to recovery. We think that the operation of a car without a license, while it is a punishable act, does not render the operator a trespasser on the highway, but that the illegal element in the act is only the failure to have a license while operating it, so that if the operation and movement contributed to the accident with which the want of a license had no connection, except as a mere condition, they would not preclude the operator as a plaintiff from recovery. If the illegal quality of the act had no tendency to cause the accident, the fact that the act is punishable because of the illegality, ought not to preclude one from recovery for harmful results to which, without negligence, the innocent features of the act alone contributed.

The other part of this statute, relative to the licensing of automobiles, has been construed differently. In Dudley v. Northampton Street Railway, 202 Mass. 443, because of the peculiar provisions of the statute and the dangers and evils that it was intended to prevent, it was decided, after much consideration, that the having of such a machine in operation on a street, without a license, was the very essence of the illegality, and that the illegality was inseparable from the movement of the automobile upon the street at any time, for a single foot; that in such movement the machine was an outlaw, and any person on the street as an occupant of the automobile, participating in the movement of it, was for the time being a trespasser. Some of us were disinclined to lay down the law so broadly, and the opinion of the court was not unanimous; but the doctrine has been repeatedly reaffirmed and is now the established law of the Commonwealth. Feeley v. Melrose, 205 Mass. 329. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 158. The difference between this provision of the statute and that involved in the present case is in part one of form, but in connection with the form, it is still more the seeming purpose and intent of the Legislature as to permitting such machines upon the public ways without adequate means of identifying them and ascertaining their owner, together with the requirement that the machine itself, as a thing of power, shall have its own registration and legalization, the evidence of which it shall always carry with it....

We are of opinion that the law of these last cases should not be extended to the provision of the statute requiring every operator to have a personal license to operate the car. The jury should have been instructed that the defendant’s failure to have a license was only evidence of his negligence as to the management of the car.”

See also Holland v. Boston, 213 Mass. 560; Holden v. McGillicuddy, 215 Mass. 563; Conroy v. Mather, 217 Mass. 91.

In Taylor v. Stewart, 172 N. C. 203, Brown, J., (for the court) said:

“The plaintiff sues to recover for the death of his child, who was run over and killed by an automobile, belonging to the defendant J. W. Stewart. At the time the car was being operated by James Stewart, the son of the said J. W. Stewart, a lad of 13 years of age. A colored chauffeur, who had been sent out with the car by the owner, was sitting beside the lad.

His honor charged the jury that under the laws of North Carolina it was a misdemeanor for a person under the age of 16 to drive an automobile upon any highway or public street, and that it is a circumstance from which the jury may infer negligence, and that it does not necessarily follow that the jury shall conclude it was negligence, but that it is a circumstance to go to the jury. In this his honor erred. He should have instructed the jury that it is negligence per se for the defendant James Stewart to have driven the machine in violation of the statute law of the state. Zageir v. Southern Express Co., 89 S. E. 44; Paul v. Railroad, 170 N. C. 231, 87 S. E. 66, L. R. A. 1916B, 1079; Ledbetter v. English, 166 N. C. 125, 81 S. E. 1066.”

See Davis, The Plaintiff’s Illegal Act as a Defense in Actions of Tort, 18 Harvard Law Rev. 505; Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 317.

[251]. Part of case omitted; also arguments of counsel.

[252]. Williams v. New Albany R. Co., 5 Ind. 111; Vandalia R. v. Duling, 60 Ind. App. 332; Union R. Co. v. Rollins, 5 Kan. 167 (as to legislation, see Darling v. Rodgers, 7 Kan. 592; Missouri R. Co. v. Olden, 72 Kan. 110); Crawford v. Hughes, 3 J. J. Marsh. 433; Little v. Lathrop, 5 Me. 356; Richardson v. Milburn, 11 Md. 340; Eames v. Salem R. Co., 98 Mass. 560; Collins v. Lundquist, 154 Mich. 658; Vandegrift v. Rediker, 22 N. J. Law, 185; Munger v. Tonawanda R. Co., 4 N. Y. 349; Gregg v. Gregg, 55 Pa. St. 227; Hurd v. Rutland R. Co., 25 Vt. 116; Metropolitan Ins. Co. v. Clark, 145 Wis. 181 Accord.

As between adjoining owners, in absence of statutory duty as to division fence, see Bissell v. Southworth, 1 Root, 269; McNeer v. Boone, 52 Ill. App. 181; Myers v. Dodd, 9 Ind. 290; Stephenson v. Elliott, 2 Ind. App. 233; De Mers v. Rohan, 126 Ia. 488; Markin v. Priddy, 40 Kan. 684; Sturtevant v. Merrill, 33 Me. 62; Gillespie v. Hendren, 98 Mo. App. 622; Tewksbury v. Bucklin, 7 N. H. 518; Deyo v. Stewart, 4 Denio, 101; Angell v. Hill, 18 N. Y. Supp. 824; Kobayashi v. Strangeway, 64 Wash. 36.

As to liability of the owner for unauthorized entry of a dog on another’s lands, see Brown v. Giles, 1 Carr. & P. 118; Read v. Edwards, 17 C. B. N. S. 245; Doyle v. Vance, 6 Vict. L. R. (Law) 87.

Trespass on unenclosed land by chickens, see Evans v. McLalin, 189 Mo. App. 310.

[253]. Morgan v. Hudnell, 52 Ohio St. 552 Accord.

[254]. Arguments omitted.

[255]. Hartford v. Brady, 114 Mass. 466; Wood v. Snider, 187 N. Y. 28; Erdman v. Gottshall, 9 Pa. Super. Ct. 295; Metropolitan Ins. Co. v. Clark, 145 Wis. 181 Accord.

Cattle, while being driven on the highway, enter on the unfenced land of A adjoining the highway, and pass thence on to the unfenced land of B, adjoining the land of A, but not adjoining the highway. B has an action against the owner of the cattle. Wood v. Snider, 187 N. Y. 28. See also note in 12 L. R. A. N. S. 912.

[256]. As to the effect of statutes requiring lands to be fenced, see Northern R. Co. v. Cunningham, 89 Fed. 594; Comerford v. Dupuy, 17 Cal. 308 (as to later legislation see Hahn v. Garratt, 69 Cal. 146; Fisch v. Nice, 12 Cal. App. 60); Nuckolls v. Gaut, 12 Col. 361; Wright v. Wright, 21 Conn. 329; Frazier v. Nortinus, 34 Ia. 82 (but no application to cultivated land—Hallock v. Hughes, 42 Ia. 516); Louisville R. Co. v. Simmons, 85 Ky. 151; Gorman v. Pacific R. Co., 26 Mo. 441 (as to later legislation, see O’Riley v. Diss, 41 Mo. App. 184); Smith v. Williams, 2 Mont. 195; Randall v. Gross, 67 Neb. 255 (no application to cultivated lands); Jones v. Witherspoon, 52 N. C. 555; Kerwhaker v. Cleveland R. Co., 3 Ohio St. 172; Walker v. Bloomingcamp, 34 Or. 391; Gregg v. Gregg, 55 Pa. St. 227 (as to later legislation see Thompson v. Kyler, 9 Pa. Co. Ct. R. 205); Davis v. Davis, 70 Tex. 123; Poindexter v. May, 98 Va. 143; Walls v. Cunningham, 123 Wis. 346.

As to effect of statutes providing for division fences, see D’Arcy v. Miller, 86 Ill. 102; Duffees v. Judd, 48 Ia. 256; Wills v. Walters, 5 Bush, 351; Gooch v. Stephenson, 13 Me. 371; Shepherd v. Hees, 12 Johns. 433; Barber v. Mensch, 157 Pa. St. 390; Tower v. Providence R. Co., 2 R. I. 404.

Such statutes apply only as between adjoining owners: Aylesworth v. Herrington, 17 Mich. 417; Wilder v. Wilder, 38 Vt. 678; and as to cattle lawfully on the adjoining land: Lord v. Wormwood, 29 Me. 282; Vandegrift v. Rediker, 22 N. J. Law, 185; Melody v. Reab, 4 Mass. 471; Lawrence v. Combs, 37 N. H. 331.

[257]. Arguments and portions of the opinion omitted.

[258]. Buford v. Houtz, 133 U. S. 320; Nashville R. Co. v. Peacock, 25 Ala. 229 (as to later legislation, see Phillips v. Bynum, 145 Ala. 549); Little Rock R. Co. v. Finley, 37 Ark. 562; Morris v. Fraker, 5 Col. 425; Studwell v. Ritch, 14 Conn. 292; Sprague v. Fremont R. Co., 6 Dak. 86; Savannah R. Co. v. Geiger, 21 Fla. 669; Macon R. Co. v. Lester, 30 Ga. 911 (but see later legislation, Puckett v. Young, 112 Ga. 578); Seeley v. Peters, 5 Gilm. 130 (but see Ill. Rev. St. c. 8, § 1); Bulpit v. Mathews, 145 Ill. 345; Vicksburgh R. Co. v. Patton, 31 Miss. 156; Gorman v. Pacific R. Co., 26 Mo. 441 (but see later legislation, Gumm v. Jones, 115 Mo. App. 597); Delaney v. Errickson, 10 Neb. 492; Laws v. North Carolina R. Co., 52 N. C. 468 (but see later legislation, State v. Mathis, 149 N. C. 546); Cleveland R. Co. v. Elliott, 4 Ohio St. 474 (but see later legislation, Marsh v. Koons, 78 Ohio St. 68); Murray v. South Carolina R. Co., 10 Rich. Law, 227; Hardman v. King, 14 Wyo. 503 Accord.

Turning or driving cattle on another’s uninclosed, unimproved lands, where the common law is inapplicable or is abrogated by legislation: Lazarus v. Phelps, 152 U. S. 81; Bell v. Gonzales, 35 Col. 138; Bedden v. Clark, 76 Ill. 338; Dexter v. Heaghney, 47 Ill. App. 205; Harrison v. Adamson, 76 Ia. 337; Union R. Co. v. Rollins, 5 Kan. 167; Powers v. Kindt, 13 Kan. 74; Monroe v. Cannon, 24 Mont. 316; Musselshell Cattle Co. v. Woolfolk, 34 Mont. 126; Herrin v. Sieben, 46 Mont. 226; Delaney v. Errickson, 11 Neb. 533; Addington v. Canfield, 11 Okl. 204; Thomas v. Blythe, 44 Utah, 1; Cosgriff v. Miller, 10 Wyo. 190; Martin v. Platte Valley Sheep Co., 12 Wyo. 432; Healey v. Smith, 14 Wyo. 263. Compare Avery v. Maxwell, 4 N. H. 36.

Compare reasons given for the inapplicability of the common-law rule to Colorado. Beck, J., in Morris v. Fraker, 5 Col. 425, 428, 429.

[259]. Arguments omitted.

[260]. See Herold v. Meyers, 20 Ia. 378; Williams v. Michigan R. Co., 2 Mich. 259; Christy v. Hughes, 24 Mo. App. 275; Peek v. Western Tel. Co., 159 Mo. App. 148; Crandall v. Eldridge, 46 Hun, 411.

Whether there is a right of pasturage on uninclosed lands, where the common law rule is not in force, see Union R. Co. v. Rollins, 5 Kan. 167; Caulkins v. Mathews, 5 Kan. 191; Knight v. Abert, 6 Pa. St. 472.

[261]. The arguments are omitted.

[262]. After stating that “if a man have a beast, as a bull, cow, horse, or dog, used to hurt people, if the owner know not his quality, he is not punishable, &c.,” Hale adds (citing authorities) that “these things seem to be agreeable to law.

“1. If the owner have notice of the quality of his beast, and it doth anybody hurt, he is chargeable with an action for it.

“2. Though he have no particular notice that he did any such thing before, yet if it be a beast that is ferae naturae, as a lion, a bear, a wolf, yea an ape or monkey, if he get loose and do harm to any person, the owner is liable to an action for the damage, and so I knew it adjudged in Andrew Baker’s Case, whose child was bit by a monkey that broke its chain and got loose.

“3. And therefore in case of such a wild beast, or in case of a bull or cow, that doth damage, where the owner knows of it, he must at his peril keep him up safe from doing hurt, for though he use his diligence to keep him up, if he escape and do harm, the owner is liable to answer damages.” 1 Hale’s P. C. 430, Part I, c. 33.—Reporter’s Note.

[263]. Jackson v. Smithson, 15 M. & W. 563; Card v. Case, 5 C. B. 622; Strouse v. Leipf, 101 Ala. 433; Holt v. Leslie, 116 Ark. 433; Laverone v. Mangianti, 41 Cal. 138; Gooding v. Chutes Co., 155 Cal. 620; Woolf v. Chalker, 31 Conn. 121; Kightlinger v. Egan, 75 Ill. 141; Gordon v. Kaufman, 44 Ind. App. 603; Holt v. Myers, 47 Ind. App. 118; Kennett v. Engle, 105 Mich. 693; Hall v. Huber, 61 Mo. App. 384; O’Neill v. Blase, 94 Mo. App. 648; Muller v. McKesson, 73 N. Y. 195; People v. Shields, 142 App. Div. 194; Tubbs v. Shears, 55 Okl. 610; Mann v. Weiand, 81* Pa. St. 243; McCaskill v. Elliot, 5 Strob. 196; Missio v. Williams, 129 Tenn. 504; Harris v. Carstens Packing Co., 43 Wash. 647; Gunderson v. Bieren, 80 Wash. 459 Accord.

[264]. See Mason v. Keeling, 12 Mod. 332.

[265]. Besozzi v. Harris, 1 F. & F. 92; Texas R. Co. v. Juneman, 71 Fed. 939 (wild steer); Jackson v. Baker, 24 App. D. C. 100; Graham v. Payne, 122 Ind. 403 (ram); Marble v. Ross, 124 Mass. 44 (bull); Marquet v. La Duke, 96 Mich. 596; Phillips v. Garner, 106 Miss. 828; Manger v. Shipman, 30 Neb. 352; Van Leuven v. Lyke, 1 N. Y. 515; Mahoney v. Dwyer, 84 Hun, 348; Malloy v. Starin, 113 App. Div. 852 (reversed on other grounds, 191 N. Y. 21); Stamp v. Eighty-sixth St. Amusement Co., 95 Misc. 599 Accord.

Compare Hayes v. Miller, 150 Ala. 621, as to a wolf domesticated to such an extent that the owner believed it harmless.

As to the liability of the owner of bees, see O’Gorman v. O’Gorman, [1903] 2 I. R. 573; Parsons v. Manser, 119 Ia. 88; Petey Mfg. Co. v. Dryden, 5 Pennewill, 166; Lucas v. Pettit, 12 Ont. Law, 448; Notes in 97 Am. State Rep. 287, and 62 L. R. A. 132. Compare Earl v. Van Alstine, 8 Barb. 630; Olmsted v. Rich, 25 N. Y. St. Rep. 271; Arkadelphia v. Clark, 52 Ark. 23.

[266]. “Certain animals ferae naturae may doubtless be domesticated to such an extent as to be classed, in respect to the liability of the owner for injuries they commit, with the class known as tame or domestic animals; but inasmuch as they are liable to relapse into their wild habits and to become mischievous, the rule is that if they do so, and the owner becomes notified of their vicious habit, they are included in the same rule as if they had never been domesticated, the gist of the action in such a case, as in the case of untamed wild animals, being not merely the negligent keeping of the animal, but the keeping of the same with knowledge of the vicious and mischievous propensity of the animal.” Clifford, J., in Spring Company v. Edgar, 99 U. S. 645, 653.

[267]. See Bennet v. Bostock, 13 Scottish Sheriff Court Reports, 50; in the same direction with Scribner v. Kelley, 38 Barb. 14, cited in the foregoing opinion.

[268]. Kelley v. Killourey, 81 Conn. 320; Keightlinger v. Egan, 65 Ill. 235; Feldman v. Sellig, 110 Ill. App. 130; Donahue v. Scott Transfer Co., 141 Ill. App. 174; Bush v. Wathen, 104 Ky. 548; Quimby v. Woodbury, 63 N. H. 370; Badali v. Smith, (Tex. Civ. App.) 37 S. W. 642 Accord.

“There are expressions in some of the cases indicating that the liability of the owner is not affected by the negligence of the person injured.... If a person with full knowledge of the evil propensities of an animal wantonly excites him or voluntarily and unnecessarily puts himself in the way of such an animal, he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover. In such a case it cannot be said, in a legal sense, that the keeping of the animal, which is the gravamen of the offence, produced the injury.... But as the owner is held to a rigorous rule of liability on account of the danger to human life and limb, by harboring and keeping such animals, it follows that he ought not to be relieved from it by slight negligence or want of ordinary care [on the part of the plaintiff].... As negligence, in the ordinary sense, is not the ground of liability, so contributory negligence, in its ordinary meaning, is not a defence. These terms are not used in a strictly legal sense in this class of actions, but for convenience ... I think ... that the rule of liability before indicated is a reasonable one, and that the owner cannot be relieved from it by any act of the person injured, unless it be one from which it can be affirmed that he caused the injury himself, with a full knowledge of its probable consequences.” Church, C. J., in Muller v. McKesson, 73 N. Y. 195, 201, 202, 204.

So Woolf v. Chalker, 31 Conn. 121; Vredenberg v. Behan, 33 La. Ann. 627; Fake v. Addicks, 45 Minn. 37; Malloy v. Starin, 113 App. Div. 852.

Negligence of the person injured, see Graham v. Walsh, 14 Ga. App. 287; Buckley v. Gee, 55 Ill. App. 388; Milne v. Walker, 59 Ia. 186; Carpenter v. Latta, 29 Kan. 591; Tolin v. Terrell, 133 Ky. 210; Garland v. Hewes, 101 Me. 549; Twigg v. Ryland, 62 Md. 380; Spellman v. Dyer, 186 Mass. 176; Ryan v. Marren, 216 Mass. 556; Warrick v. Farley, 95 Neb. 565; Earhart v. Youngblood, 27 Pa. St. 331.

[269]. Arguments omitted. Compare report of same case in 1 Ld. Raym. 606.

[270]. Sed quaere: for in S. C. 1 Ld. Ray. 608, it is said that the case was adjourned, and that afterwards the parties agreed, and therefore no judgment was given.—Reporter’s Note.

As to the requirement of scienter in case of injury by domestic animals, Shaw v. Craft, 37 Fed. 317; Kitchens v. Elliott, 114 Ala. 290; Finney v. Curtis, 78 Cal. 498; Warner v. Chamberlain, 7 Houst. 18; Reed v. Southern Express Co., 95 Ga. 108; Domm v. Hollenbeck, 259 Ill. 382; Indianapolis Abattoir Co. v. Bailey, 54 Ind. App. 370; Trumble v. Happy, 114 Ia. 624; Ballou v. Humphrey, 8 Kan. 219; Murray v. Young, 12 Bush. 337; Goode v. Martin, 57 Md. 606; Dix v. Somerset Coal Co., 217 Mass. 146; Durrell v. Johnson, 31 Neb. 796; Smith v. Donohue, 49 N. J. Law, 548; Vrooman v. Lawyer, 13 Johns. 339; Dufer v. Cully, 3 Or. 377; Robinson v. Marino, 3 Wash. 434; Johnston v. Mack Mfg. Co., 65 W. Va. 544; Kertschacke v. Ludwig, 28 Wis. 430 Accord.

Liability for injury to trespassers in case of scienter: Woolf v. Chalker, 31 Conn. 121; Conway v. Grant, 88 Ga. 40; Engebretson v. Bremer, 128 Minn. 232; Loomis v. Terry, 17 Wend. 496; Pierret v. Moller, 3 E. D. Smith, 574; Sherfey v. Bartley, 4 Sneed, 58.

Liability where dog runs at large unmuzzled in violation of ordinance: Buchanan v. Stout, 139 App. Div. 204.

Where vicious dog kills trespassing dog: Wiley v. Slater. 22 Barb. 506.

What constitutes knowledge, see: Shaw v. Craft, 37 Fed. 317; Barclay v. Hartman, 2 Marv. 351; Keightlinger v. Egan, 65 Ill. 235; Domm v. Hollenbeck, 259 Ill. 382; Kolb v. Klages, 27 Ill. App. 531; Cameron v. Bryan, 89 Ia. 214; Holt v. Myers, 47 Ind. App. 118; Murray v. Young, 12 Bush, 337; Twigg v. Ryland, 62 Md. 380; Knowles v. Mulder, 74 Mich. 202; Slater v. Sorge, 166 Mich. 173; Rowe v. Ehrmanntraut, 92 Minn. 17; Reynolds v. Hussey, 64 N. H. 64; Emmons v. Stevane, 73 N. J. Law, 349, 77 N. J. Law, 570; Rider v. White, 65 N. Y. 54; Brice v. Bauer, 108 N. Y. 428; Martin v. Borden, 123 App. Div. 66; McGarry v. New York R. Co., 60 N. Y. Sup. Ct. 367; Hayes v. Smith, 62 Ohio St. 161; Holden v. Shattuck, 34 Vt. 336.

Knowledge of single vicious act: Eastman v. Scott, 182 Mass. 192; Kittredge v. Elliott, 16 N. H. 77; Keenan v. Gutta Percha Mfg. Co., 46 Hun, 544; Cockerham v. Nixon, 11 Ired. 269. Compare: Linck v. Scheffel, 32 Ill. App. 17; Cooper v. Cashman, 190 Mass. 75; Buckley v. Leonard, 4 Denio, 500.

Statutes making owners or keepers of dogs liable irrespective of scienter or of negligence in keeping are not uncommon, but vary greatly in detail.

[271]. Worthen v. Love, 60 Vt. 285 Accord. Baker v. Snell, [1908] 2 K. B. 352, 825; Laverone v. Mangianti, 41 Cal. 138; Muller v. McKesson, 73 N. Y. 195; Dockerty v. Hudson, 125 Ind. 102 Contra.

Compare: The Lord Derby, 17 Fed. 265; Melsheimer v. Sullivan, 1 Col. App. 22; Woodbridge v. Marks, 17 App. Div. 139; Lloyd v. Bowen, 170 N. C. 216; Hayes v. Smith, 62 Ohio St. 161; Fallon v. O’Brien, 12 R. I. 518.

See also Vredenberg v. Behan, 33 La. Ann. 627 (bear teased by third person broke loose and injured plaintiff); Kinmouth v. McDougall, 19 N. Y. Supp. 771 (ram teased by children injured plaintiff).

See Bevan, The Responsibility at Common Law for the Keeping of Animals, 22 Harvard Law Rev. 465.

[272]. Compare Merritt v. Matchett, 135 Mo. App. 176.

[273]. Hadwell v. Righton, [1907] 2 K. B. 345; Higgins v. Searle, 25 Times L. R. 301; Klenberg v. Russell, 125 Ind. 531; Dix v. Somerset Coal Co., 217 Mass. 146; Shipley v. Colclough, 81 Mich. 624; Smith v. Donahue, 49 N. J. Law, 548; Meegan v. McKay, 1 Okl. 59 Accord. But see Barnes v. Chapin, 4 All. 444.

[274]. Jewett v. Gage, 55 Me. 538 (hog) Accord.

Compare Coulter, J., in Goodman v. Gay, 15 Pa. St. 188, 193, 194; Corcoran v. Kelly, 61 Misc. 323.

A fortiori if one turns loose a vicious animal: McGuire v. Ringrose, 41 La. Ann. 1029.

Injuries by animals running at large contrary to statute, see: Williams v. Brennan, 213 Mass. 28; Low v. Barnes, 30 Okl. 15; Palmer v. Saccocia, 33 R. I. 476.

[275]. In the argument for defendant the declaration is set out as follows:—

“In a plea of the case for that the said plaintiff, on the 14th day of September, 1855, was possessed of a valuable horse, of the value of $125.00, which was peaceably and of right depasturing in his own close, and the defendant was possessed of another horse, vicious and unruly, which was running at large where of right it ought not to be, and being so unlawfully at large, broke into the plaintiff’s close, at the time aforesaid, and viciously and wantonly kicked, reared upon, and injured the plaintiff’s horse, so that his death was caused thereby, which vicious habits and propensities were well known to the defendant at the time aforesaid. To the damage, &c.”

[276]. The arguments are omitted.

[277]. Angus v. Radin, 2 South. (N. J.) 815 Accord. The same result has often been reached in an action of trespass quare clausum in which the injury by the trespassing animal is set up in aggravation. Lee v. Riley, 17 C. B. N. S. 722; Theyer v. Purnell, [1918] 2 K. B. 333; Van Leuven v. Lyke, 1 N. Y. 515; Dolph v. Ferris, 7 Watts & Sergt. 367; Chunot v. Larson, 43 Wis. 536.

But see McDonald v. Jodrey, 8 Pa. Co. Ct. R. 142 (cat went on plaintiff’s premises and killed canary).

[278]. Statement and arguments omitted.

[279]. 17 C. B. N. S. 260.

[280]. 13 C. B. N. S. 430.

[281]. 18 C. B. N. S. 732.

[282]. L. R. 10 C. P. 10.

[283]. McClain v. Lewiston Driving Ass’n, 17 Idaho, 63; Green v. Doyle, 21 Ill. App. 205; Chunot v. Larson, 43 Wis. 536 Accord.

Buck v. Moore, 35 Hun, 338 (defendant’s trespassing dog killed plaintiff’s dog); Van Etten v. Noyes, 128 App. Div. 406 Contra.

[284]. Statement condensed. Arguments and portions of opinions omitted.

[285]. But compare Bischoff v. Cheney, 89 Conn. 1 (trespassing cat).

In Pollock on Torts, 6th ed., 479, it is said that the owner of cattle and other live stock straying on the land of others is “liable only for natural and probable consequences, not for an unexpected event, such as a horse not previously known to be vicious kicking a human being.” In 1 Beven on Negligence, 2d ed., 637, it is said, that if animals are trespassing and do injury not in accordance with the ordinary instinct of the animals, “the owner is not liable for the injury apart from the trespass (though he may be for the trespass), unless he knows of the particular vice which caused the injury.”

See Fisk, J., in Peterson v. Conlan, 18 N. D. 205, 212.

[286]. Statement abridged. Arguments in all the courts omitted; also opinions in Court of Exchequer.

[287]. “It is not every use to which the land is put that brings into play that principle [Rylands v. Fletcher]. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community.” Lord Moulton in Rickards v. Lothian, [1913] A. C. 263, 280.

“This was a case of the escape of water from lavatory pipes. It would appear, therefore, that the construction of distributing water-pipes in a building is an ordinary and natural use of land, but that the construction of the water-mains or reservoirs from which the water is obtained is not so. Such unreal and impracticable distinctions are not creditable to the development of English law.” Salmond, Torts (4 ed.) § 61, n. 13.

See the remarks of Doe, C. J., in Brown v. Collins, infra, p. 482.

“This rule is rightly applicable only to such unusual and extraordinary uses of property in reference to the benefits to be derived from the use and the dangers or losses to which others are exposed, as should not be permitted except at the sole risk of the user. The standard of duty established by the courts in these cases is that every owner shall refrain from these unwarrantable and extremely dangerous uses of property unless he provides safeguards whose perfection he guarantees.... The principle applicable to the erection of common buildings whose fall might do damage to persons or property on the adjacent premises holds owners to a less strict duty. This principle is that where a certain lawful use of property will bring to pass wrongful consequences from the condition in which the property is put, if these are not guarded against, an owner who makes such a use is bound at his peril to see that proper care is taken in every particular to prevent the wrong.... The duty which the law imposes upon an owner of real estate in such a case, is to make the conditions safe so far as it can be done by the exercise of ordinary care on the part of all those engaged in the work. He is responsible for the negligence of independent contractors as well as for that of his servants. This rule is applicable to every one who builds an ordinary wall which is liable to do serious injury by falling outside of his own premises.... The uses of property governed by this rule are those that bring new conditions which involve risks to the persons or property of others, but which are ordinary and usual and in a sense natural, as incident to the ownership of the land. The rule first referred to applies to unusual and extraordinary uses which are so fraught with peril to others that the owner should not be permitted to adopt them for his own purposes without absolutely protecting his neighbors from injury or loss by reason of the use.” Knowlton, J., in Ainsworth v. Lakin, 180 Mass. 397, 399–401.

[288]. Eastern Tel. Co. v. Capetown Tramways Cos., [1902] A. C. 381; Midwood v. Manchester Corporation, [1905] 2 K. B. 597; Charing Cross Co. v. London Hydraulic Power Co., [1913] 3 K. B. 442, [1914] 3 K. B. 772; Brennan Construction Co. v. Cumberland, 29 App. D. C. 554 (crude petroleum in tank); Shipley v. Associates, 106 Mass. 194; Cahill v. Eastman, 18 Minn. 324; Wiltse v. Red Wing, 99 Minn. 255 (reservoir); French v. Carter Creek Mfg. Co., 173 Mo. App. 220 (stored nitroglycerine); Defiance Water Co. v. Olinger, 54 Ohio St. 532; Bradford Co. v. St. Mary’s Co., 60 Ohio St. 560 (stored nitroglycerine); Langabaugh v. Anderson, 68 Ohio St. 131 (crude petroleum in tank); Texas R. Co. v. Frazer (Tex. Civ. App.) 182 S. W. 1161 (dam); Weaver Mercantile Co. v. Thurmond, 68 W. Va. 530 Accord. See Wing v. London General Omnibus Co., [1909] 2 K. B. 652.

“In every case of the kind which has been reported since Rylands v. Fletcher, that is, during the last 25 years, there has been a manifest inclination to discover something in the facts which took the case out of the rule. According to the English judicial system which has gone round the world with the English language and English or Anglicized institutions, the decisions of superior courts are not merely instructive and worthy of regard, but of binding authority in subsequent cases of the like sort. But there are some authorities which are followed and developed in the spirit, which become the starting-point of new chapters of the law; there are others that are followed only in the letter, and become slowly but surely choked and crippled by exceptions. This again, is independent of the considerations of local fitness which must always have weight when precedents are cited from a country remote both in place and in manners.” Pollock, Law of Fraud in British India, 53–54 (1894).

“In August, 1908, Count Z. sent one of his dirigibles from Mainz to Friederickshafen. Some motor trouble happened, and the ship was landed in a field. Thousands of people rushed to the place, so ropes were run around it, and soldiers were ordered on guard. The ship was anchored, and in addition held by forty men with ropes at the stem, and by thirty at the stern. In the afternoon a sudden thunderstorm came up, struck the dirigible, tore it loose and sent it adrift for about a mile, when it caught fire and was destroyed.

Spectators had been around all the time, and were standing outside the ropes in rows several deep. Some unfortunate person standing in the outer row near the rear gondola, was caught by the ship’s anchor, dragged into the air and carried for some distance; in the fall, one of his legs sustained such injuries that it had to be amputated.

He brought suit for damages, and was nonsuited; appealed; same result. Finally, he appealed to the Reichsgericht. It refused to interfere, for the following reasons: There being no special law governing damage by air-navigation, it becomes necessary to prove negligence on the part of the aviator or promoter. The idea that the mere undertaking of a business, acknowledged to be dangerous, carries with it responsibility for all damage caused thereby, is not law. The only duty which the hazardousness of the undertaking imposes upon the person engaged therein, is that of extra care. Otherwise, almost all kinds of transportation would be impossible.

In this case, the trip had commenced during exceptionally fine weather, which continued until after the time when the ship had been landed and anchored. Defendant had proved that on former occasions he had succeeded in landing, anchoring and holding his ship, even when the weather was unfavorable, and that the means he on such occasions had employed in keeping the ship at its moorings, were not any stronger than those employed on this occasion; in fact, they were weaker. It could not be demanded of the defendant that he should anticipate and provide against such an extraordinary violent gust of wind as tore his airship away.” 75 Central Law Journ. 311 (1912).

In Charing Cross Co. v. London Hydraulic Power Co., [1914] 3 K. B. 772, hydraulic mains under the streets burst and injured plaintiff’s cables, also laid in the streets. Lord Sumner said (pp. 779–780): “I think that this present case is also indistinguishable from Rylands v. Fletcher. Two grounds of distinction have been suggested. It is said that the doctrine of Rylands v. Fletcher is applicable between the owners of adjacent closes, which are adjacent whether there be any intermediate property or not; and that it is a doctrine depending upon the ownership of land and the rights attaching to the ownership of land, under which violations of that species of right can be prevented or punished. In the present case instead of having two adjacent owners of real property, you have only two neighboring owners, not strictly adjacent, of chattels, whose chattels are there under a permission which might have been obtained by the private license of the owners of the soil, though in fact obtained under parliamentary powers; hence the two companies are in the position of co-users of a highway, or at any rate of co-users of different rooms in one house, and Rylands v. Fletcher does not apply. The case depends on doctrines applicable to the highways, or to houses let out in tenements. I am unable to agree with any of these distinctions, though they have been pressed upon us by both learned counsel with great resource and command of the authorities. Midwood v. Manchester Corporation, [1905] 2 K. B. 597, is not decided as a case of a dispute arising between the owners of two adjacent closes. The case is treated as one between a corporation, whose business under the roadway is exactly similar to that of the defendant corporation here, and injured occupiers of the premises. If the distinction drawn between the present case and that of adjacent landowners in Rylands v. Fletcher be a good one, it either was not taken in Midwood v. Manchester Corporation or was taken and treated as of no importance. Further I am satisfied that Rylands v. Fletcher is not limited to the case of adjacent freeholders. I shall not attempt to show how far it extends. It extends as far as this case, and that is enough for the present purpose.”

See Thayer, Liability Without Fault, 29 Harv. Law Rev. 801; Bohlen, The Rule in Rylands v. Fletcher, 59 University of Pennsylvania Law Rev. 298, 373, 423; Wigmore, Responsibility for Tortious Acts: Its History, 7 Harv. Law Rev. 315, 383, 442.

Liability in case of customary or statutory duty or authority to use land as defendant did, see Madras R. Co. v. Zemindar, L. R. 1 Ind. App. 364; Green v. Chelsea Waterworks Co., 70 L. T. 547; Price v. South Metropolitan Gas Co., 65 L. J. Q. B. N. S. 126; City v. Bridgeport Hydraulic Co., 81 Conn. 84.

[289]. Argument abridged.

[290]. The judgment of the Court below, read by Bramwell, B., states the finding thus: “In this case I understand the jury to have found that all reasonable care had been taken by the defendant, that the banks were fit for all events to be anticipated, and the weirs broad enough; that the storm was of such violence as to be properly called the act of God, or vis major.”

[291]. See Salmond, Torts (4 ed.) § 65.

[292]. Arguments omitted.

[293]. See Carstairs v. Taylor, L. R. 6 Ex. 217; Wilson v. Newberry, L. R. 7 Q. B. 31; Rickards v. Lothian, [1913] A. C. 263.

[294]. Actiesselskabet Ingrid v. Central R. Co., (C. C. A.) 216 Fed. 72 (explosives); Judson v. Giant Powder Co., 107 Cal. 549 (explosives); Lake Shore R. Co. v. Chicago R. Co., 48 Ind. App. 584 (semble); Owensboro v. Knox, 116 Ky. 451 (electricity); Murphy v. Gillum, 73 Mo. App. 478 (semble); Losee v. Buchanan, 51 N. Y. 476 (boiler); Cosulich v. Standard Oil Co., 122 N. Y. 118 (petroleum); Huff v. Austin, 46 Ohio St. 386 (boiler); Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126 (semble); Sowers v. McManus, 214 Pa. St. 244 (explosives); Davis v. Charleston R. Co., 72 S. C. 112 (boiler) Accord.

Bursting of dam, see: Alabama Coal & Iron Co. v. Turner, 145 Ala. 639; Todd v. Cochell, 17 Cal. 97; Shrewsbury v. Smith, 12 Cush. 177; City Water Power Co. v. City, 113 Minn. 33; King v. Miles City Co., 16 Mont. 463; Livingston v. Adams, 8 Cow. 175; Lapham v. Curtis, 5 Vt. 371. Compare Pennock v. Central R. Co., 159 App. Div. 517.

As to constitutionality of legislation imposing liability without fault, see City v. Sturges, 222 U. S. 313, 322; Pittsburgh R. Co. v. Home Ins. Co., 183 Ind. 355; Daugherty v. Thomas, 174 Mich. 371; Ives v. South Buffalo R. Co., 201 N. Y. 271, 295–298.

[295]. See Cahill v. Eastman, 18 Minn. 324; Madras R. Co. v. Zemindar of Carvatenagarum, L. R. 1 Ind. App. 364.—Reporter’s Note.

[296]. Only so much of the case is given as relates to a single point.

[297]. Damage through escape of gas from pipes, see: Gould v. Winona Gas Co., 100 Minn. 258; Taylor v. St. Joseph Gas Co., 185 Mo. App. 537; Morgan v. United Gas Co., 214 Pa. St. 109; Windish v. Peoples Gas Co., 248 Pa. St. 236.

[298]. Herndon v. Stultz, 124 Ia. 734 Accord. But see Indiana, Burns’ Ann. Stat., 1914, §§ 5524–5525; Texas, McEachin’s Civil Stat., arts. 6601–6602.

As to constitutionality of such legislation, see Ex parte Hodges, 87 Cal. 162.

[299]. Argument omitted.

[300]. Edwards v. Massingill, 3 Ala. App. 406; Kansas City R. Co. v. Wilson, (Ark.) 171 S. W. 484; Bullock v. Porter, 2 Boyce, 180; Talmadge v. Central R. Co., 125 Ga. 400; Beckham v. Seaboard Ry., 127 Ga. 550; Pittsburgh R. Co. v. Culver, 60 Ind. 469; Brummit v. Furness, 1 Ind. App. 401; Hanlon v. Ingram, 3 Ia. 81; Johnson v. Veneman, 75 Kan. 278; Needham v. King, 95 Mich. 303; Bolton v. Calkins, 102 Mich. 69; Steffens v. Fisher, 161 Mo. App. 386; Bock v. Grooms, 2 Neb. Unoff. 803; Read v. Pennsylvania R. Co., 44 N. J. Law, 280; Clark v. Foot, 8 Johns. 421; Stuart v. Hawley, 22 Barb. 619; Hitchcock v. Riley, 44 Misc. 260; McDermott v. Consolidated Ice Co., 44 Pa. Super. Ct. 445; Pfeiffer v. Aue, 53 Tex. Civ. App. 98; Waldy v. Preston Mill Co., 80 Wash. 25; Fahn v. Reichart, 8 Wis. 255 Accord.

Fires set by locomotives. As to liability for fires set by locomotives, there is a conflict. One view is that the plaintiff must establish negligence, as in other cases. Garrett v. Southern R. Co., (C. C. A.) 101 Fed. 102; Pittsburgh R. Co. v. Hixon, 110 Ind. 225 (changed by statute); Louisville R. Co. v. Haggard, 161 Ky. 317; Wallace v. New York R. Co., 208 Mass. 16 (res ipsa loquitur inapplicable); New England Box Co. v. New York R. Co., 210 Mass. 465; Fero v. Buffalo R. Co., 22 N. Y. 209; Peck v. New York R. Co., 165 N. Y. 347; Campbell v. Baltimore R. Co., 58 Pa. Super. Ct. 241.

Another view is that proof that the fire was due to sparks or coals from an engine makes a prima facie case of negligence or even casts upon the company the burden of disproving negligence. McCullen v. Chicago R. Co., (C. C. A.) 101 Fed. 66; Woodward v. Chicago R. Co., (C. C. A.) 145 Fed. 577 (statute); Erickson v. Pennsylvania R. Co., (C. C. A.) 170 Fed. 572 (statute); Alabama R. Co. v. Johnston, 128 Ala. 283; St. Louis R. Co. v. Trotter, 89 Ark. 273 (changed by statute); Florida R. Co. v. Welch, 53 Fla. 145 (statute); Southern R. Co. v. Thompson, 129 Ga. 367 (statute); Osburn v. Oregon R. Co., 15 Idaho, 478; American Strawboard Co. v. Chicago R. Co., 177 Ill. 513; Kennedy v. Iowa Ins. Co., 119 Ia. 29 (statute); Atchison R. Co. v. Geiser, 68 Kan. 281; Fuller v. Chicago R. Co., 137 La. 997; Dyer v. Maine R. Co., 99 Me. 195; Baltimore R. Co. v. Dorsey, 37 Md. 19; Continental Ins. Co. v. Chicago R. Co., 97 Minn. 467; Alabama R. Co. v. Barrett, 78 Miss. 432; Miller v. St. Louis R. Co., 90 Mo. 389; Rogers v. Kansas City R. Co., 52 Neb. 86; Laird v. Connecticut R. Co., 62 N. H. 254 (statute); Goodman v. Lehigh R. Co., 78 N. J. Law, 317 (statute); North Fork Lumber Co. v. Southern R. Co., 143 N. C. 324; Missouri R. Co. v. Gentry, 31 Okl. 579 (but changed by statute); Anderson v. Oregon R. Co., 45 Or. 211; Hutto v. Seaboard Ry., 81 S. C. 567; Gulf R. Co. v. Johnson, 92 Tex. 591; Ide v. Boston R. Co., 83 Vt. 66 (statute); Norfolk R. Co. v. Thomas, 110 Va. 622; Thorgrimson v. Northern R. Co., 64 Wash. 500; Jacobs v. Baltimore R. Co., 68 W. Va. 618; Moore v. Chicago R. Co., 78 Wis. 120.

In other jurisdictions there is a statutory absolute liability for such fires. St. Louis R. Co. v. Cooper, 120 Ark. 595; British Assur. Co. v. Colorado R. Co., 52 Col. 589; Martin v. New York R. Co., 62 Conn. 331; Pittsburgh R. Co. v. Chappell, 183 Ind. 141; Stewart v. Iowa R. Co., 136 Ia. 182; Murphy v. St. Louis R. Co., 248 Mo. 28; Baltimore R. Co. v. Kreager, 61 Ohio St. 312; Midland R. Co. v. Lynn, 38 Okl. 695; MacDonald v. New York R. Co., 23 R. I. 558; Peoples Oil Co. v. Charleston R. Co., 83 S. C. 530; Jensen v. South Dakota R. Co., 25 S. D. 506.

[301]. State v. General Stevedoring Co., 213 Fed. 51; Kinney v. Koopman, 116 Ala. 310; Kleebauer v. Western Fuse Co., 138 Cal. 497; Simpson v. Du Pont Powder Co., 143 Ga. 465; Barnes v. Zettlemoyer, 25 Tex. Civ. App. 468 Accord.

French v. Center Creek Powder Co., 173 Mo. App. 220 Contra.

Compare Sloss-Sheffield Steel Co. v. Prosch, 190 Ala. 290; Flynn v. Butler, 189 Mass. 377; Reilly v. Erie R. Co., 72 App. Div. 476.

[302]. Only part of case is given. Argument omitted.

[303]. Statement and arguments omitted.

[304]. Wright v. Malden R. Co., 4 All. 283; Nelson v. Burnham & Morrill Co., 114 Me. 213; Fluker v. Ziegele Brewing Co., 201 N. Y. 40; Beck v. Vancouver R. Co., 25 Or. 32 Accord. See also Newcomb v. Boston Protective Department, ante, p. 391; Bourne v. Whitman, ante, p. 400, note 1.

Platte & Denver Canal Co. v. Dowell, 17 Col. 376: Richardson v. El Paso Min. Co., 51 Col. 440; Lindsay v. Cecchi, 3 Boyce, 133; Toledo R. Co. v. O’Connor, 77 Ill. 391; United States Brewing Co. v. Stoltenberg, 211 Ill. 531; Presto-Lite Co. v. Skeel, 182 Ind. 593; Correll v. Burlington R. Co., 38 Ia. 120; Schlereth v. Missouri R. Co., 96 Mo. 509; Brannock v. Elmore, 114 Mo. 55; Olson v. Nebraska Tel. Co., 83 Neb. 735; Texas R. Co. v. Brown, 11 Tex. Civ. App. 503; Smith v. Milwaukee Builders’ Exchange, 91 Wis. 360 Contra.

In Evers v. Davis, 86 N. J. Law, 196, 202, Garrison, J., says:

“The question then is, What is, upon common law principles, the effect of statutes such as the one we are considering upon the action of negligence? The familiar expressions that the breach of such a statute is ‘negligence per se’ or is ‘prima facie evidence of negligence’ seem to me to postpone elucidation rather than to contribute to it, while the implication that proof of a breach of a public statute will support a private recovery is positively misleading.

A fact constantly to be borne in mind in tracing the legal effect of such statutes is that the negligence that is essential to the action of negligence is not solely in the overt act that produced the injury complained of, but may lie in the failure to foresee the danger likely to result from the doing of such act. ‘Danger, reasonably to be foreseen at the time of acting, is the established test of negligence’ says the writer already cited. Of negligence of this sort it may be said that it is common to all phases of the action, which cannot be said of the mere overt act, which may not be an act of neglect or omission at all, but, on the contrary, one of affirmative commission, e. g., the blowing of a locomotive whistle (Bittle v. Camden and Atlantic Railroad Co., 55 N. J. L. 615), the discharge of steam (Mumma v. Easton and Amboy Railroad Co., 73 Id. 653) or the extraordinary lurching of a train (Burr v. Pennsylvania Railroad Co., 64 Id. 30). But whether the overt act be one of omission or of commission, and whether the conduct of the defendant be stated in terms of ‘duty’ or of ‘fault,’ the one common denominator, so to speak, of the action of negligence is this element of what we may call discoverable danger; that is to say, a danger that is susceptible of being discovered in advance of action or inaction by the exercise of that degree of care which if a man fails to exercise he becomes civilly liable for the consequences of his conduct. Now, it is precisely upon this element of discoverable danger that public statutes or ordinances act, and they do this not by giving to the plaintiff a right of action he did not have before, but by their operation upon what we may call the common law conscience of the defendant, better known to us in its personified form of ‘the ordinary prudent man,’ the familiar fiction designed by the common law to aid juries, when deciding what was the proper thing for a man to do, to lose sight of the personal point of view of that particular man and to base their judgment upon a general standard which in the final assize is what the jury itself thinks was the proper thing to do.

Now this ordinary prudent man of common law creation must in the nature of things be regarded as a law-abiding citizen to whom, as is pointed out by Dean Thayer in the article referred to, it would be an unjust reproach to suppose that, knowing the statute—for upon familiar principles he can claim no benefit from his ignorance of it—he would break it, reasonably believing that it was a prudent thing for him to do; and that in all probability no harm would come of it.

In other words, it is inconsistent with ordinary prudence for an individual to set up his private judgment against that of the lawfully constituted public authority. We must assume, therefore, that the ordinary prudent man would not do such a thing since to do so would be to change his entire nature and to forego the very traits that brought him into existence. He would, in fine, cease to be the pattern man he must continue to be in order to be at all.

Upon common law principles, therefore, when the legislature has by public statute established a certain standard of conduct in order to prevent a danger that it foresaw, it has in this regard forewarned the ‘ordinary prudent man’ and through him the defendant in a civil action, whose conduct must always coincide with this common law criterion. Such danger, therefore, does not have to be proved by the plaintiff, since there is no longer room for a reasonable difference of opinion, for by his breach of the statute the defendant, through his common law conscience, is charged with knowledge that if injury ensues he will have acted at his peril.

The court therefore should so instruct the jury, whether such instruction be couched in the terms of the defendant’s duty to perform or of his culpability for neglect, or of his liability for the result of his action or inaction, as the case may be; and thus upon common law principles the plaintiff in an action of negligence obtains the benefit of the statute if he be one of the class for whose protection it was enacted and the breach of such statute was the efficient cause of the injury of which he complains.”

In Smith v. Mine & Smelter Co., 32 Utah, 21, 30, Frick, J., says:

“The court instructed the jury in substance that, if they found from the evidence that the appellant had violated the city ordinance in respect to keeping or storing explosives, such violation constituted negligence per se. Counsel insist that such is not the law; that it would be prima facie negligence at most. As to whether a violation of a law or ordinance constitutes negligence per se depends in a large measure upon the nature of the law or ordinance. When a standard of duty or care is fixed by law or ordinance, and such law or ordinance has reference to the safety of life, limb, or property, then, as a matter of necessity, a violation of such law or ordinance constitutes negligence. In any case the standard is usually defined as that degree of care that men of ordinary care and prudence usually exercise. But, when the standard is fixed by law or ordinance, how can one be heard to say that he exercised care in exceeding, or in refraining to comply with, the standard fixed? There is, in such cases, no comparison to be made. Care and prudence alone cannot excuse. Exceeding or disregarding the standard of care imposed must be held to be negligence, if it is anything. If it is held not to be such per se, it simply amounts to this: That it is for the jury to say whether, in violating a law or ordinance fixing a standard of care to be observed the law was carefully or negligently violated. The violation, thus in and of itself, would mean nothing, and one would be permitted to violate the law with impunity, provided the jury find it to have been carefully done. Neither is it an answer to say that the violation may have been caused by the act of God or unavoidable accident. If such be the case, then the act constituted no violation in law, and when there is no violation there would be no negligence arising out of such act or acts alone, and the jury would be required to find whether the act or acts complained of constituted a violation, as above indicated, or not. If they found that the law was disregarded, but that it was occasioned by a higher power or through unavoidable accident, then there would be no violation by the person charged, and hence no negligence imputable to him from that act alone. But if they found that he had violated the law by his own act, or by the acts of others chargeable to him, then there would be negligence per se. This negligence, however, standing alone, is not civilly actionable. The negligence must in all cases be found to be the proximate cause of the injury. The court instructed the jury that unless they found that the negligence, if they found negligence as above stated, was the proximate cause of the injury complained of, the respondent could not recover. This, we think, is a correct statement of the law pertaining to ordinances such as the one in question here. We do not hold that a violation of all laws or ordinances constitutes negligence per se, but we do hold that the violation of ordinances designed for the safety of life, limb, or property, does constitute negligence per se, and this, we think, is supported by the clear weight of authority.”

It is sometimes said that violation of a duty so imposed is “prima facie evidence of negligence;” Giles v. Diamond State Iron Co., 7 Houst. 453; True v. Woda, 104 Ill. App. 15; Wabash R. Co. v. Kamradt, 109 Ill. App. 203; Mize v. Rocky Mountain Tel. Co., 38 Mont. 521; Briggs v. New York R. Co., 72 N. Y. 26; Acton v. Reed, 104 App. Div. 507.

A distinction between a statute and a municipal ordinance has been urged. Philadelphia R. Co. v. Ervin, 89 Pa. St. 71; Lederman v. Pennsylvania R. Co., 165 Pa. St. 118; Riegert v. Thackery, 212 Pa. St. 86.

In Ubelmann v. American Ice Co., 209 Pa. St. 398, 400, Brown, J., says:

“When negligence is charged it must be proved. Proof of the violation of an ordinance regulating or relating to conduct alleged to have been negligent is not in itself conclusive proof of the negligence charged. The ordinance and its violation are matters of evidence, to be considered with all other evidence in the case: Lane v. Atlantic Works, 111 Mass. 136. But this rule is limited to cases in which the ordinance relates to the alleged negligent act under investigation. Here, as stated, it was the use of an alleged defective shifting rod in the elevator. Ordinances and their violation are admissible, not as substantive and sufficient proof of the negligence of the defendant, but as evidence of municipal expression of opinion, on a matter as to which the municipal authorities had acted, that the defendant was negligent, and are to be taken into consideration with all the other facts in the case. Illustrations of this are found in several of our later cases. In Lederman v. Pennsylvania Railroad Co., 165 Pa. 118, one of the questions was the undue rate of speed at which the defendant company was running its cars through the city of Lancaster, and we held that the ordinance in relation to the speed of railway trains within the city limits had been properly admitted. An ordinance of the city of Philadelphia requires all vehicles, including bicycles, to keep to the right, and, in Foote v. American Product Co., 195 Pa. 190, where the rider of the bicycle had conformed to this ordinance, and the driver of the wagon that ran into him had not, we said, through our Brother Mestrezat: ‘While the ordinance in itself was not evidence of negligence, it may be considered with other evidence in ascertaining whether the defendant was guilty of negligence.’ When the suit is against the municipality itself, and it is charged with negligence, due to the dereliction of its employees, their violation or disregard of its own regulations and ordinances relating to the matter under investigation are proof of such dereliction, though not necessarily of the specific negligence charged, which, as in all other cases, must be proved by proper and satisfactory evidence. The dereliction of the municipal employees is to be taken into consideration with the other facts in the case, upon proof of which the plaintiff relies to sustain his allegation of negligence. An illustration of this is Herron v. The City of Pittsburg, 204 Pa. 509, which was an action against the city to recover damages for personal injuries sustained by a boy from contact with a live, naked telephone wire used in the police service of the city, and it appeared that the break in the wire was known to the police officials within an hour after it had occurred, and that it was also known to them to be in close proximity to other wires, some of which carried strong and dangerous currents of electricity. We regarded as proper the admission of the ordinance of the city and the rules of the police department relating to the inspection and use of the city wires.

The ordinance of April 10, 1894, provides for the inspection of elevators by inspectors duly appointed by the city of Philadelphia, and makes it the duty of the owner or operator of an elevator, after its inspection, to procure from the inspector a certificate that it is in condition to be operated, and to expose the certificate to public view as near as possible to the elevator car. This ordinance does not make it the duty of one owning or operating an elevator to demand an inspection, and it is only after the inspector has inspected that he must procure and expose the certificate. But, even if there had been an inspection here, and the defendant company had not procured and exposed the proper certificate, its failure to do so is not the negligence charged against it that resulted in the plaintiff’s injury, and the ordinance clearly had no proper place in his evidence.”

Breach of rules of a private corporation, see Hoffman v. Cedar Rapids R. Co., 157 Ia. 655; Stevens v. Boston R. Co., 184 Mass. 476; Virginia R. Co. v. Godsey, 117 Va. 167.

See Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 317.

[305]. Arguments omitted.

[306]. Steel Car Forge Co. v. Chec, (C. C. A.) 184 Fed. 868; Great Southern R. Co. v. Chapman, 80 Ala. 615; Lindsay v. Cecchi, 3 Boyce, 133; Gibson v. Leonard, 143 Ill. 182; Browne v. Siegel, 90 Ill. App. 49 (aff’d on another ground, 191 Ill. 226); Presto-Lite Co. v. Skeel, 182 Ind. 593; Kidder v. Dunstable, 11 Gray, 342; Curwen v. Bofferding, 133 Minn. 28; Koch v. Fox, 71 App. Div. 288; Kuhnen v. White, 102 App. Div. 36; Ledbetter v. English, 166 N. C. 125; Dobbins v. Missouri R. Co., 91 Tex. 60; Stacy v. Knickerbocker Ice Co., 84 Wis. 614; Derouso v. International Harvester Co., 157 Wis. 32 Accord.

Compare Hartnett v. Boston Store, 265 Ill. 331, with Pizzo v. Wiemann, 149 Wis. 285; Beauchamp v. Burn Mfg. Co., 250 Ill. 303, with Berdos v. Tremont Mills, 209 Mass. 489.

[307]. In Cowley v. Newmarket Local Board, [1892] A. C. 345, 351, Lord Herschell said:

“My Lords, the question which arises in this action is whether the defendants are liable in respect of an accident which happened to the plaintiff, owing to the existence of a drop of eighteen inches in the level of a footway vested in the defendants, in consequence of which the plaintiff fell and sustained considerable injury. The difference of level in the footway arose from a carriage-way having been made for the purpose of access to Captain Machell’s stable, the yard of which adjoined the footway. This work was executed by Captain Machell in the year 1873. The plaintiff in his statement of claim asserted that the defendants had wrongfully suffered and permitted the footway to be out of repair and in a condition dangerous to passengers. It appeared clearly at the trial that there had been no misfeasance on the part of the defendants. The utmost that could be charged against them was nonfeasance. It was strongly urged at the bar that the highway including the footway being vested in the defendants, they were responsible if it was not kept in proper condition and repair to any one who was injured by reason of its not being so kept. In support of their contention they relied mainly on the 144th and 149th sections of the Public Health Act, 1875. By the former of those sections every urban authority is to execute the office of surveyor of highways, and to exercise and be subject to all the powers, duties, and liabilities of surveyors. By the latter it is provided that the urban sanitary authority shall from time to time cause all streets vested in them to be levelled, paved, metalled, flagged, channelled, altered, and repaired as occasion may require. Amongst the duties thus imposed upon the urban authority was undoubtedly the duty of keeping this highway in repair, and it is said that any person injured by the non-performance of a statutory duty is entitled to recover against the person on whom that duty rests. I entertain very grave doubts whether the proposition thus broadly stated can be maintained. The principal authority in support of it is the decision of the Court of Queen’s Bench in the case of Couch v. Steel, 3 E. & B. 402. But in the case of Atkinson v. Newcastle Waterworks Company, 2 Ex. D. 441, the late Lord Cairns and Cockburn, C. J., and the present Master of the Rolls all expressed serious doubts whether the case of Couch v. Steel was rightly decided, and whether the broad general proposition could be supported, that whenever a statutory duty is created any person who can show he has sustained injury from the non-performance of that duty can maintain an action for damages against the person on whom the duty is imposed. I share the doubt expressed by these learned judges and the opinion expressed by Lord Cairns that much must ‘depend on the purview of the Legislature in the particular statute and the language which they have there employed.’ In the case of Glossop v. Heston and Isleworth Local Board, 12 Ch. D. 102, 109, James, L. J., made some observations bearing on this point, which seem to me to be of great weight. In that case the plaintiff claimed an injunction to restrain a nuisance on the ground that the defendants had neglected to perform the statutory duty cast on them as the sanitary authority of a particular district. The learned Lord Justice said: ‘It appears to me that if this action could be sustained it would be a very serious matter indeed for every ratepayer in England in any district in which there is any local authority upon whom duties are cast for the benefit of the locality. If this action could be maintained, I do not see why it could not, in a similar manner, be maintained by every owner of land in that district who could allege that if there had been a proper system of sewage his property would have been very much improved.’ And he expressed the opinion that such a contention was not supported either by principle or authority. It is to be observed that the Highway Act, which defines the duties of surveyors of highways, prescribes the mode of proceeding when the duty of repairing the highway is unfulfilled and the liability which is then to attach to the surveyor. By sect. 94 he may be summoned before the justices, and if it appears either upon the report of a person appointed by them to view, or on their own view, that the highway is not in a state of thorough and perfect repair, they are to convict the surveyor in a penalty, and to make an order on the surveyor to repair it within a limited time; and if the repairs are not made within the time so limited the surveyor is to forfeit and pay to a person to be named and appointed in a second order a sum of money equal to the cost of repairing the highway. I think it, to say the least, doubtful whether, apart from the reason to which I am about to refer, the contention that an action lies against the local board for a breach of their statutory duty to repair the highways can be maintained.”

Sydney Municipal Council v. Bourke, [1895] A. C. 433; Maguire v. Liverpool Corporation, [1905] 1 K. B. 767 Accord. But compare Dawson v. Bingley Urban District Council, [1911] 2 K. B. 149.

Statutory duty to repair street or sidewalk, see Manchester v. Hartford, 30 Conn. 118; Kirby v. Boylston Market, 14 Gray, 249; Rochester v. Campbell, 123 N. Y. 405.

[308]. “A person who sells, gives away, or disposes of, any poison, or poisonous substance, without attaching to the vial, box, or parcel containing such poisonous substance, a label, with the name and residence of such person, the word ‘poison,’ and the name of such poison, all written or printed thereon, in plain and legible characters, is guilty of a misdemeanor.”—Minnesota Penal Code, section 329.

“No person shall sell at retail any poisonous commodity recognized as such, and especially” [here enumerating various poisons], “without affixing to the box, bottle, vessel or package containing the same, and to the wrapper or cover thereof, a label bearing the name ‘poison’ distinctly shown, together with the name and place of business of the seller.... Any person failing to comply with the requirements of this section shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not less than five (5) dollars for each and every such omission.”—Minnesota Laws, 1885, chap. 147, section 14.

[309]. Couch v. Steel, 3 E. & B. 402; Salisbury v. Herchenroder, 106 Mass. 458; Parker v. Barnard, 135 Mass. 116; Marino v. Lehmaier, 173 N. Y. 530; Westervelt v. Dives, 220 Pa. St. 617 Accord. Compare Nugent v. Vanderveer, 38 Hun, 487.

See also Great Northern Fishing Co. v. Edgehill, 11 Q. B. D. 225.

[310]. Arguments omitted. Only so much of the opinion is given as relates to a single point.

[311]. Groves v. Wimborne, [1898] 2 Q. B. 402; Cowen v. Story & Clark Co., 170 Ill. App. 92; Andersen v. Settergren, 100 Minn. 294; Schaar v. Conforth, 128 Minn. 460 Accord. Compare Stehle v. Jaeger Machine Co., 220 Pa. St. 617; Drake v. Fenton, 237 Pa. St. 8.

[312]. Arguments of counsel omitted.

[313]. Bischof v. Illinois R. Co., 232 Ill. 446; Frontier Steam Laundry Co. v. Connolly, 72 Neb. 767; Hocking R. Co. v. Phillips, 81 Ohio St. 453 Accord.

Breach of statutory duty toward third person, see Gibson v. Leonard, 143 Ill. 182; Woodruff v. Bowen, 136 Ind. 431; Bott v. Pratt, 33 Minn. 323; Kelly v. Muhs, 71 N. J. Law, 348; Beehler v. Daniels, 19 R. I. 49. Compare Racine v. Morris, 201 N. Y. 240.

In Stanley v. Atchison R. Co., 88 Kan. 84, Mason, J., says:

“The evidence tended to show these facts: Stanley kept a number of cattle in a feed lot one side of which was formed by the right-of-way fence. Employees of the company who were engaged in its repair removed a part of it, as well as a part of Stanley’s fence which connected with it, and as a temporary protection strung two wires across the gap. The protection was insufficient and the cattle escaped. None of them was injured upon the right of way, but a number strayed and were not recovered, and others suffered injury, in some cases fatal.

The defendant maintains that in any view of the findings the judgment ought not to be reversed, for the reason that the petition does not state a cause of action, because the company was under no obligation to maintain the fence, except for the purpose of avoiding liability for animals killed or injured by its trains, and therefore cannot be held accountable for any other kind of loss occasioned by the want of a sufficient fence. The original statute upon the subject does not in terms require a railroad right of way to be fenced. It makes the company responsible for animals killed or injured by the operation of its railway irrespective of negligence, except where the road is enclosed with a lawful fence.... The later statute imposed a duty on the railroad company to maintain the fence, and it is liable for any injury of which its neglect of such duty is the proximate cause....

The defendant urges that the purpose of the statute referred to is to promote safety in the running of trains; that in this purpose is found the only warrant for imposing upon the railroad company the obligation to fence its right of way; and that therefore the company’s liability must be limited to injuries resulting from the operation of the road, and the state has no power to make it liable for losses occasioned by the escape of animals which do not meet with any injury upon the right of way. Assuming that the right of the legislature to require a railroad company to fence its tracks is based solely upon the consideration that such fencing may be deemed necessary to diminish the danger of injury to animals from the operation of trains, and to persons and property resulting from trains colliding with animals, it is competent as a means of enforcing such requirement to make the company liable for losses occasioned to the landowner by the escape of his cattle through a defective fence, although they pass from the right of way without injury.”

Liability to licensee in case of breach of statutory duty as to condition of premises, see Sheyer v. Lowell, 134 Cal. 357.

Liability to trespassers, see Nelson v. Burnham & Morrill Co., 114 Me. 213; Flanagan v. Sanders, 138 Mich. 253; Hamilton v. Minneapolis Desk Co., 78 Minn. 3; Bennett v. Odell Mfg. Co., 76 N. H. 180. Compare Butz v. Cavanaugh, 137 Mo. 503.

See Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 313, 336.

[314]. By “Lord Tenterden’s Act,” 9 Geo. IV. ch. 14, s. 6, it is provided, that no action shall be brought to charge any person upon any representation made concerning the character, conduct, credit, ability, trade, or dealings of any other person, to the intent that such other person may obtain credit, money, or goods, unless such representation “be made in writing, signed by the party to be charged therewith.” Statutes of a similar nature have been enacted in some of the United States.

[315]. Only part of the opinion is printed.

[316]. Cf. Lillegren v. Burns, 135 Minn. 60.

[317]. Statement abridged. Only part of opinion is given.

[318]. In Aaron’s Reefs Ltd. v. Twiss, [1896] A. C. 273, 280–281, Lord Halsbury, L. C., says: “I must protest against it being supposed that in order to prove a case of this character of fraud, and that a certain course of conduct was induced by it, a person is bound to be able to explain with exact precision what was the mental process by which he was induced to act. It is a question for the jury. If a man said he was induced by such and such an inducement held out in the prospectus, I should not think that conclusive. It must be for the jury to say what they believed upon the evidence. Looking at the evidence in this case, I should say if I were a juryman that this was a very fascinating prospectus, and was calculated to induce any one who believed the statements in it to invest his money in the concern.”

In Mathews v. Bliss, 22 Pick. 48, Shaw, C. J., says: “The judge further instructed the jury, that in order to maintain this action, they must be satisfied that the defendants had made the false representation, and that the sale was produced by means of it; that it was not necessary that it should be the sole and only motive inducing the sale, but it must have been a predominant one. In this particular, the Court are of opinion, that the direction, as it may have been and probably was understood by the jury, was not strictly correct; though it may have been so qualified and illustrated as to prevent the jury from being misled by it.

The term ‘predominant,’ in its natural and ordinary signification, is understood to be something greater or superior in power and influence to others, with which it is connected or compared. So understood, a predominant motive, when several motives may have operated, is one of greater force and effect, in producing the given result, than any other motive. But the Court are of opinion, that if the false and fraudulent representation was a motive at all, inducing to the act, if it was one of several motives, acting together, and by their combined force producing the result, it should have been left to the jury so to find it. If the false suggestion had no influence, if the plaintiff’s agent would have done the same thing and made the sale if such representation had not been made, then it was not a motive to the act, and the plaintiff’s agent was not induced to sell by means of it. On the whole, considering that the ordinary and natural meaning of the term ‘predominant,’ when applied to one among several motives, is such as has been stated, that the jury may have so understood it, and if they did so understand it, they may have come to a verdict not warranted by law, upon the evidence before them, the Court are of opinion, that the verdict ought to be set aside, and a new trial granted.”

[319]. The case has been much abridged, and the greater part of the report omitted.

[320]. Cockrill v. Hall, 65 Cal. 326; United States Home Co. v. O’Connor, 48 Col. 354; Lynch v. Hall, 41 Conn. 238; Jones v. Crawford, 107 Ga. 318; Hinchey v. Starrett, 91 Kan. 181; Oldham v. Bentley, 6 B. Mon. 428; Price v. Read, 2 Har. & G. 291; Adams v. Anderson, 4 Har. & J. 558; Sweet v. Kimball, 166 Mass. 332; Garry v. Garry, 187 Mass. 62; McElrath v. Electric Investment Co., 114 Minn. 358; Holmes v. Wilkes, 130 Minn. 170; Cerny v. Paxton Co., 78 Neb. 134; Gabriel v. Graham, 168 App. Div. 847; American Hosiery Co. v. Baker, 18 Ohio Cir. Ct. R. 604; Standard Elevator Co. v. Wilson, 218 Pa. St. 280; Bowe v. Gage, 127 Wis. 245 Accord. See also Wilson v. Yocum, 77 Ia. 569.

[321]. Arguments and part of opinion omitted.

[322]. Harriage v. Daley, 121 Ark. 23; Dickinson v. Atkins, 100 Ill. App. 401; McAllister v. Indianapolis R. Co., 15 Ind. 11; Welshbillig v. Dienhart, 65 Ind. 94; Long v. Woodman, 58 Me. 49; Davis v. Reynolds, 107 Me. 61; Bullock v. Wooldridge, 42 Mo. App. 356; Wolters v. Fidelity Trust Co., 73 N. J. Law, 57 Accord. See also Bennett v. McIntire, 121 Ind. 231.

In Adams v. Gillig, 199 N. Y. 314, plaintiff sued in equity for cancellation of a conveyance procured by falsely representing that defendant intended to build a dwelling on the land, when his real intention was to build a garage. Chase, J., said (pp. 320–322): “A promise as such to be enforceable must be based upon a consideration, and it must be put in such form as to be available under the rules relating to contracts and the admission of evidence relating thereto. It may include a present intention, but as it also relates to the future it can only be enforced as a promise under the general rules relating to contracts.

A mere statement of intention is a different thing. It is not the basis of an action on contract. It may in good faith be changed without affecting the obligations of the parties. A statement of intention does not relate to a fact that has a corporal and physical existence, but to a material and existing fact nevertheless not amounting to a promise but which as in the case under discussion affects and determines important transactions. The question here under discussion is not affected by the rules relating to the admission of testimony. As it was not promissory and contractual in its nature there is nothing in the rules of evidence to prevent oral proof of the representations made by the defendant to the plaintiff. In an action brought expressly upon a fraud, oral evidence of facts to show the fraud is admissible. (Pomeroy’s Equity Jurisprudence, Sec. 889.)

This case stands exactly as it would have stood if the plaintiff and defendant before the execution and delivery of the deed had entered into a writing by which the defendant had stated therein his intention as found by the court on the trial and the plaintiff had stated her acceptance of his offer based upon her belief and faith in his statement of intention, and it further appeared that the statement was so made by the defendant for the purpose of inducing the plaintiff to sell to him the lot, and that such statement was so made by him falsely, fraudulently and purposely for the purpose of bringing about such sale.

Intent is of vital importance in very many transactions. In the criminal courts it is necessary in many cases for jurors to determine as a question of fact the intent of the person charged with the crime. Frequently the life or liberty of the prisoner at the bar depends upon the determination of such question of fact. In civil actions relating to wrongs, the intent of the party charged with the wrong is frequently of controlling effect upon the conclusion to be reached in the action. The intent of a person is sometimes difficult to prove, but it is nevertheless a fact and a material and existing fact that must be ascertained in many cases, and when ascertained determines the rights of the parties to controversies. The intent of Gillig was a material existing fact in this case, and the plaintiff’s reliance upon such fact induced her to enter into a contract that she would not otherwise have entered into. The effect of such false statement by the defendant of his intention cannot be cast aside as immaterial simply because it was possible for him in good faith to have changed his mind or to have sold the property to another who might have a different purpose relating thereto. As the defendant’s intention was subject to change in good faith at any time it was of uncertain value. It was, however, of some value. It was of sufficient value so that the plaintiff was willing to stand upon it and make the conveyance in reliance upon it.

The use of property in a particular manner changes from time to time and restrictive covenants of great value at one time may become a source of serious embarrassment at a later date. The fact that restrictive covenants cannot ordinarily be drawn to bend to changed conditions has made many purchasers disinclined to accept conveyances with such covenants. A restrictive covenant in a deed may be of sufficient importance to justify a refusal by a contractee to accept a conveyance subject to such conditions. A person in selling property may be quite willing to execute and deliver a deed thereof without putting restrictive covenants therein and in reliance upon the good faith of express, unqualified assurances of the present intention of the prospective purchaser. In such case the intention is material and the statement of such intention is the statement of an existing fact.

Unless the court affirms this judgment, it must acknowledge that although a defendant deliberately and intentionally, by false statements, obtained from a plaintiff his property to his great damage it is wholly incapable of righting the wrong, notwithstanding the fact that by so doing it does in no way interfere with the rules that have grown up after years of experience to protect written contracts from collateral promises and conditions not inserted in the contract.

We are of the opinion that the false statements made by the defendant of his intention should, under the circumstances of this case, be deemed to be a statement of a material, existing fact of which the court will lay hold for the purpose of defeating the wrong that would otherwise be consummated thereby.”

[323]. Butler v. Watkins, 13 Wall. 456; Rogers v. Virginia-Carolina Chemical Co., (C. C. A.) 149 Fed. 1; Sallies v. Johnson, 85 Conn. 77; McLaughlin v. Thomas, 86 Conn. 252; Olson v. Smith, 116 Minn. 430; Herndon v. Durham R. Co., 161 N. C. 650; Blackburn v. Morrison, 29 Okl. 510 Accord.

Grubb v. Milan, 249 Ill. 456; Murray v. Smith, 42 Ill. App. 548; Chambers v. Mitchell, 123 Ill. App. 595; Younger v. Hoge, 211 Mo. 444 Contra.

In Commonwealth v. Althause, 207 Mass. 32, 47–49, Loring, J., says: “As a general proposition of law apart from statutes making it a crime to obtain property by a false pretence, it would seem that a man’s present intention as to a future act is a fact. Edgington v. Fitzmaurice, 29 Ch. D. 459. Swift v. Rounds, 19 R. I. 527. In the first of these two cases (Edgington v. Fitzmaurice) Bowen, L. J., said, at p. 483: ‘The state of a man’s mind is as much a fact as the state of his digestion.’ And Chapman, C. J., in Commonwealth v. Walker, 108 Mass. 309, 312, said: ‘A man’s intention is a matter of fact, and may be proved as such....’

But in the case at bar the presiding judge went beyond any decided case in the explanation which he gave of the difference between the representation of a person’s present intention as to a future act and an assurance or promise that the future act shall be done. For the purpose of illustrating the essential difference between the two he put as an example of obtaining property by a false pretence a case which is not obtaining property by a false pretence. In effect he told the jury that if A buys property intending not to pay for it he obtains that property by a false pretence. In that case A makes no representation at all. All that he does is to make a promise, and a promise is not a representation of a fact. It has been sought to make out that in legal contemplation a promise with an intention not to perform is a false pretence because a promise to do a thing of necessity implies a present intention to do it, and therefore whenever you have a promise coupled with an intent not to perform you have an implied false representation of an intention to do the act which the defendant promised to do and so a false pretence. And this finds some apparent support in Swift v. Rounds, 19 R. I. 527. In that case it was held that where a defendant buys property intending not to pay for it he is liable in an action of deceit because he impliedly represents that he intends to pay for it by the act of buying. It may be doubted whether the making of a promise implies of necessity in all cases a present intention to perform that promise. Upon that question we do not find it necessary to express an opinion. For however that may be, the fraud of obtaining property by buying it intending not to pay for it is not, as matter of construction of the statute creating it, the crime of obtaining property by a false pretence.... It is evident that the fraud (which by enacting that statute the Legislature intended to make a crime) was obtaining the property of another by a false statement of a fact; and it is equally evident that in enacting it the Legislature did not have in mind the fraud of buying goods not intending to pay for them. Both are frauds but they are not the same fraud. In our opinion it was the former alone which the Legislature had in mind in making it a crime to obtain property by a false pretence.”

As to whether intention at the time of the contract or at the time of delivery of the goods is to be regarded, see In re Levi, 148 Fed. 654; Whitten v. Fitzwater, 129 N. Y. 626.

[324]. See Gardner v. State, 4 Ala. App. 131; Syracuse Knitting Co. v. Blanchard, 69 N. H. 447.

[325]. Statement abridged. Part of opinion omitted.

[326]. As to “promissory representations,” see also Sawyer v. Prickett, 19 Wall. 146; Sallies v. Johnson, 85 Conn. 77; Carter v. Orne, 112 Me. 365; Pedrick v. Porter, 5 All. 324; Pile v. Bright, 156 Mo. App. 301.

Known impossible prophecy by one having superior knowledge, see Murray v. Tolman, 162 Ill. 417; French v. Ryan, 104 Mich. 625; Hedin v. Minneapolis Institute, 62 Minn. 146.

[327]. Only part of the case is given.

[328]. But see Davis v. Reynolds, 107 Me. 61.

In Van Epps v. Harrison, 5 Hill, 63, 70–71, Bronson, J., says: “If an affirmation concerning the cost of the property was of any consequence, I think the defendant should have taken the trouble to inquire and satisfy himself. But I cannot think it a matter of any legal importance. It was only another mode of asserting that the property was of the value of $32,000; and all the books agree that no action will lie if such an affirmation prove false. It is the folly of the purchaser to trust to it. Indeed, the representation here amounts to less than a direct affirmation of value, for it only asserts that the plaintiff and another man agreed that such was the value. It would lead to great mischief to allow men to annul contracts upon such a ground. If the defendant could make out that the plaintiff was his agent in purchasing from Van Rensselaer, then what the plaintiffs said about the price he paid might be material; but not in any other point of view.

Such are my views upon this branch of the case; but my brethren are of opinion that the false affirmation concerning the price paid for the land furnishes a good ground of action. There must, therefore, be a new trial upon this point, as well as the one relating to the condition of the land.”

As to “puffing,” see: Mumford v. Tolman, 157 Ill. 258; Miller v. Craig, 36 Ill. 109; Wightman v. Tucker, 50 Ill. App. 75; Woods v. Nicholas, 92 Kan. 258; Buckingham v. Thompson, 135 S. W. 652.

But see Pratt v. Judge, 177 Mich. 558; Adams v. Soule, 33 Vt. 538.

Statements as to value, see: Harvey v. Young, Yelverton, 21; Lake v. Loan Assn., 72 Ala. 207; Stevens v. Alabama Land Co., 121 Ala. 450; Kincaid v. Price, 82 Ark. 20; Williams v. McFadden, 23 Fla. 143; Noetling v. Wright, 72 Ill. 390; Cagney v. Cuson, 77 Ind. 494; Bossingham v. Syck, 118 Ia. 192; Else v. Freeman, 72 Kan. 666; Reynolds v. Evans, 123 Md. 365; Picard v. McCormick, 11 Mich. 68; Doran v. Eaton, 40 Minn. 35; Boasberg v. Walker, 111 Minn. 445; Union Bank v. Hunt, 76 Mo. 439; Dalrymple v. Craig, 149 Mo. 345; Dresher v. Becker, 88 Neb. 619; Sandford v. Handy, 23 Wend. 260; Ellis v. Andrews, 56 N. Y. 83; Van Slochem v. Villard, 207 N. Y. 587; Mecum v. Becker, 166 App. Div. 793; Campbell v. Zion’s Real Estate Co., 46 Utah, 1; Shanks v. Whitney, 66 Vt. 405.

Compare Moon v. Benton, 13 Ala. App. 473; Pate v. Blades, 163 N. C. 267; Crompton v. Beedle, 83 Vt. 287.

[329]. Portions of the opinion are omitted.

[330]. Gordon v. Butler, 105 U. S. 553; Kimber v. Young, (C. C. A.) 137 Fed. 744; Pittsburgh Life & Trust Co. v. Northern Ins. Co., 140 Fed. 888, 148 Fed. 674; Dotson v. Kirk, (C. C. A.) 180 Fed. 14; Rendell v. Scott, 70 Cal. 514; Wrenn v. Truitt, 116 Ga. 708; Dowden v. Wilson, 108 Ill. 257; Curry v. Keyser, 30 Ind. 214; Conant v. Nat’l State Bank, 121 Ind. 323; Scroggin v. Wood, 87 Ia. 497; Vokes v. Eaton, 119 Ky. 913; Holbrook v. Connor, 60 Me. 578; Bishop v. Small, 63 Me. 12; Donnelly v. Baltimore Trust Co., 102 Md. 1; Mooney v. Miller, 102 Mass. 217; Nash v. Minnesota Title & Trust Co., 159 Mass. 437; Lynch v. Murphy, 171 Mass. 307; Nowlin v. Snow, 40 Mich. 699; Myers v. Alpena Loan Ass’n, 117 Mich. 389; Getchell v. Dusenbury, 145 Mich. 197; Perkins v. Trinka, 30 Minn. 241; Brown v. South Joplin Min. Co., 194 Mo. 681; Ray County Bank v. Hutton, 224 Mo. 42; Fisher v. Seitz, 172 Mo. App. 162; Duffany v. Ferguson, 66 N. Y. 482; Hatton v. Cook, 166 App. Div. 257; Pritchard v. Dailey, 168 N. C. 330; Martin v. Eagle Creek Development Co., 41 Or. 448; Watts v. Cummins, 59 Pa. St. 84; Horrigan v. First Nat. Bank, 9 Baxt. 137; Jude v. Woodburn, 27 Vt. 415; Randall v. Farnum, 52 Vt. 539; Romaine v. Excelsior Machine Co., 54 Wash. 41; Crislip v. Cain, 19 W. Va. 438 Accord.

Compare Wall v. Graham, 192 Ala. 396; Barron Estate Co. v. Woodruff Co., 163 Cal. 561; Phelps v. Grady, 168 Cal. 73; Sleeper v. Smith, 77 N. H. 337; Olston v. Oregon R. Co., 52 Or. 343.

Opinion of third person, see Adams v. Collins, 196 Mass. 422.

[331]. Jarratt v. Langston, 99 Ark. 438; Baum v. Holton, 4 Col. App. 406; Shelton v. Healy, 74 Conn. 265; Kenner v. Harding, 85 Ill. 264; Dwight v. Chase, 3 Ill. App. 67; Wightman v. Tucker, 50 Ill. App. 75; Coulter v. Clark, 160 Ind. 311; Stauffer v. Hulwick, 176 Ind. 410; Beck v. Goar, 180 Ind. 81; Automobile Co. v. Crowell, 149 N. W. 861; Hetland v. Bilstad, 140 Ia. 411; Picard v. McCormick, 11 Mich. 68; Nowlin v. Snow, 40 Mich. 699; McDonald v. Smith, 139 Mich. 211; Conlan v. Roemer, 52 N. J. Law, 53; Bacon v. Frisbie, 15 Hun, 26; Marshall v. Seelig, 49 App. Div. 433; Ganow v. Ashton, 32 S. D. 458; Rodee v. Seaman, 33 S. D. 184; Rorer Iron Co. v. Trout, 83 Va. 397; Fitzgerald v. Frankel, 109 Va. 603; Grant v. Huschke, 74 Wash. 257 Accord.

[332]. Winkler v. Jerrue, 20 Cal. App. 555; Hodgkins v. Dunham, 10 Cal. App. 690; Olvey v. Jackson, 106 Ind. 286; Crane v. Elder, 48 Kan. 259; Gurney v. Tenney, 197 Mass. 457; Van de Wiele v. Garbade, 60 Or. 585; Corey v. Boynton, 82 Vt. 257; Simons v. Cissna, 52 Wash. 115 Accord. Compare Foster v. Kennedy, 38 Ala. 359; Sheer v. Hoyt, 13 Cal. App. 662; Judy v. Jester, 53 Ind. App. 74; Burr v. Willson, 22 Minn. 206; Adan v. Steinbrecher, 116 Minn. 174.

[333]. Arguments omitted.

[334]. See also Nevada Bank v. Portland Nat. Bank, 59 Fed. 338.

In Aaron’s Reefs v. Twiss, [1896] A. C. 273, Lord Halsbury, L. C., said (pp. 283–284): “I do not think any particular form of words is necessary to convey a false impression. Supposing a person goes to a bank where the people are foolish enough to believe his words, and says, ‘I want a mortgage upon my house, and my house is not completed, but in the course of next week I expect to have it fully completed.’ Suppose there was not a house upon his land at all, and no possibility, therefore, that it could be fully completed next week, can anybody say that that was not an affirmative representation that there was a house which was so near to completion that it only required another week’s work upon it to complete it? Could anybody defend himself if he was charged upon an indictment for obtaining money under false pretences, the allegation in the indictment being that he pretended that there was a house so near completion that it only required a week’s work upon it, by saying that he never represented that there was a house there at all? So here, when I look at the language in which this prospectus is couched, and see that it speaks of a property which requires only the erection of machinery to be either at once or shortly in a condition to do work so as to obtain all this valuable metal from the mine, it seems to me that, although it is put in ambidextrous language, it means as plainly as can be that this is now the condition of the mine, that such and such additions to it will enable it shortly to produce all those great results, and that that is a representation of an actually existing fact. I should quite agree with the proposition that the Lord Chancellor of Ireland and the Master of the Rolls put forward—if you are looking to the language as only the language of hope, expectation, and confident belief, that is one thing; but it does not seem to have been in the minds of the learned judges that you may use language in such a way as, although in the form of hope and expectation, it may become a representation as to existing facts; and if so, and if it is brought to your knowledge that these facts are false, it is a fraud.”

[335]. The statement has been abridged.

[336]. Loewer v. Harris, (C. C. A.) 57 Fed. 368; King v. White, 119 Ala. 429; Christy v. Campbell, 36 Col. 261; Kronfeld v. Missal, 87 Conn. 491; James v. Crosthwait, 97 Ga. 673; Gordon v. Irvine, 105 Ga. 144; Aortson v. Ridgway, 18 Ill. 23; Dayton v. Kidder. 105 Ill. App. 107; Craig v. Hamilton, 118 Ind. 565; Firestone v. Werner, 1 Ind. App. 293; Coles v. Kennedy, 81 Ia. 360; Howerton v. Augustine, 130 Ia. 389; Nairn v. Ewalt, 51 Kan. 355; Faris v. Lewis, 2 B. Mon. 375; Weikel v. Sterns, 142 Ky. 513; Prentiss v. Russ, 16 Me. 30; Barrett v. Lewiston R. Co., 110 Me. 24; Johnston v. Cope, 3 Har. & J. 89; Burns v. Dockray, 156 Mass. 135; Batty v. Greene, 206 Mass. 561; Kenyon v. Woodruff, 33 Mich. 310; Tompkins v. Hollister, 60 Mich. 470; Busch v. Wilcox, 82 Mich. 315; Marsh v. Webber, 13 Minn. 109; Thomas v. Murphy, 87 Minn. 358; McAdams v. Cates, 24 Mo. 223; Morley v. Harrah, 167 Mo. 74; Manter v. Truesdale, 57 Mo. App. 435; Stevens v. Fuller, 8 N. H. 463; Fleming v. Slocum, 18 Johns. 403; Allen v. Addington, 7 Wend. 9; March v. First National Bank, 4 Hun, 466; Brown v. Gray, 6 Jones Law, 103; Lunn v. Shermer, 93 N. C. 164; Gidney v. Chappell, 26 Okl. 737; Fitzhugh v. Nirschl, 77 Or. 514; Rheen v. Naugatuck Wheel Co., 33 Pa. St. 356; Cardwell v. McClelland, 3 Sneed, 150; Allison v. Tyson, 5 Humph. 449; Graham v. Stiles, 38 Vt. 578; Maynard v. Maynard, 49 Vt. 297; Crompton v. Beedle, 83 Vt. 287; Jarrett v. Goodnow, 39 W. Va. 602; Morgan v. Hodge, 145 Wis. 143 Accord. Compare: Randolph v. Allen, (C. C. A.) 73 Fed. 23; Ball v. Farley, 81 Ala. 288; Cherry v. Brizzolara, 89 Ark. 309; Roper v. Sangamon Lodge, 91 Ill. 518; Potts v. Chapin, 133 Mass. 276; Cochrane v. Halsey, 25 Minn. 52; Crowell v. Jackson, 53 N. J. Law, 656; Babcock v. Libbey, 82 N. Y. 144; Jones v. Stewart, 62 Neb. 207; Wicker v. Worthy, 51 N. C. 500; Harris v. Tyson, 24 Pa. St. 347; Iron Bank v. Anderson, 194 Pa. St. 205; Bishop v. Buckley, 33 Pa. Super. Ct. 123; Campbell v. Kinlock, 9 Rich. Law, 300.

In Wiser v. Lawler, 189 U. S. 260, Brown, J., said (pp. 264–65): “Attached to these prospectuses was a map entitled ‘Map of the group of mines belonging to the Seven Stars Gold Mining Company.’ It is true that there is neither in the prospectuses nor in the map a distinct assertion that the legal title to the properties mentioned was vested in the Seven Stars Company; but we think that no one can read them without inferring and believing that the Seven Stars was the owner of these properties, and that the net proceeds of their operation would be distributed in dividends to stockholders. As they were circulated as an inducement to take stock in the enterprises, we are bound to interpret them by the effect they would produce upon an ordinary mind. Andrews v. Mockford, (1896) 1 Q. B. D. 372. They were, however, even more damaging in their omissions than in their statements. No mention was made of the fact that the title to these properties stood in the names of Lawler and Wells; no allusion to the Cowland agreement, with its provisions for forfeiture, nor to the fact that the only interest of the company was an equitable right to the properties after the sum of $450,000 had been realized from the profits and paid to defendants. In estimating the probability of subscribers being misled by these prospectuses we may take into consideration not only the facts stated, but the facts suppressed. New Brunswick Co. v. Muggeridge, 1 Drewey & Smale, 363. They are entitled to know the cons as well as the pros. Gluckstein v. Barnes, (1900) App. Cas. 240; Hubbard v. Weare, 79 Iowa, 678; Hayward v. Leeson, 175 Mass. 310; In re Leeds and Hanley Theatres, (1902) 2 Ch. Div. 809.”

In Peek v. Gurney, L. R. 6 H. L. 377, Lord Cairns said (p. 403): “Mere non-disclosure of material facts, however morally censurable, however that non-disclosure might be a ground in a proper proceeding at a proper time for setting aside an allotment or a purchase of shares, would in my opinion form no ground for an action in the nature of an action for misrepresentation. There must, in my opinion, be some active misstatement of fact, or, at all events, such a partial and fragmentary statement of fact, as that the withholding of that which is not stated makes that which is stated absolutely false.”

Compare Mitchell, J., in Newell v. Randall, 32 Minn. 171, 172–73: “It is doubtless the general rule that a purchaser, when buying on credit, is not bound to disclose the facts of his financial condition. If he makes no actual misrepresentations, if he is not asked any questions, and does not give any untrue, evasive, or partial answers, his mere silence as to his general bad pecuniary condition, or his indebtedness, will not constitute a fraudulent concealment. 2 Pom. Eq. Jur. §906; Bigelow on Fraud, 36, 37. But this was not a case of mere passive non-disclosure. The object of De Laittre’s inquiry clearly was to ascertain Bauman’s financial condition and ability to pay. Bauman’s statement was in response to that inquiry, and, when he undertook to answer, he was bound to tell the whole truth, and was not at liberty to give an evasive or misleading answer, which, although literally true, was partial, containing only half the truth, and calculated to convey a false impression. The natural construction which would, under the circumstances, be put on this statement is that he had $3,300 capital in his business. It was couched in language calculated to negative the idea that this was merely the gross amount of his assets, and that he owed debts to the extent of two-thirds or the whole of that amount. Such a statement, made under the circumstances it was, might fairly and reasonably be understood as amounting to a representation that he had that amount of capital which was and would remain available, out of which to collect any debt which he might contract with plaintiff. We think this is the way in which men would ordinarily have understood it. It is immaterial that more explicit inquiries by plaintiff would have disclosed the fact of his indebtedness. It does not lie in Bauman’s mouth to say that plaintiff relied too implicitly on this general statement. To tell half a truth only is to conceal the other half. Concealment of this kind, under the circumstances, amounts to a false representation.”

[337]. The statement is taken from 37 Ch. D. 541, omitting the last part. Arguments are omitted. None of the opinions are given except portions of Lord Herschell’s.

[338]. The opinion of Stirling, J., is reported in 37 Ch. D. 550. See especially 556–558.

[339]. “Want of honest belief in the truth of what one asserts, not positive knowledge that it is false, is the essence of the wrong. A man who knows that he is making a reckless assertion about things of which he really knows nothing may not be speaking against his own belief, but he is not speaking according to it, and therefore his conduct is dishonest, and is esteemed fraud by the law.” Pollock, Law of Fraud in British India, 43.

[340]. For a criticism of the view that the directors all believed the statement, see 6 Law Quarterly Rev. 73; 5 Law Quarterly Rev. 420–422.

[341]. Schuchardt v. Allens, 1 Wall. 359; Union R. Co. v. Barnes, (C. C. A.) 64 Fed. 80; Pittsburgh Life & Trust Co. v. Northern Life Ins. Co., (C. C. A.) 148 Fed. 674; Foster v. Kennedy, 38 Ala. 359; Morton v. Scull, 23 Ark. 289; Hutchinson v. Gorman, 71 Ark. 305; Davidson v. Jordan, 47 Cal. 351; Bartholomew v. Bushnell, 20 Conn. 271; Fooks v. Waples, 1 Har. (Del.) 131; Manes v. Kenyon, 18 Ga. 291; Cooley v. King, 113 Ga. 1163; Wheeler v. Randall, 48 Ill. 182; Holdom v. Ayer, 110 Ill. 448; Herman v. Foster, 185 Ill. App. 97; Holmes v. Clark, 10 Ia. 423; Scroggin v. Wood, 87 Ia. 497; Boddy v. Henry, 113 Ia. 462; Farmers’ Stock Breeding Ass’n v. Scott, 53 Kan. 534; Campbell v. Hillman, 15 B. Mon. 508; Haynes v. Gould, 83 Me. 344; Cahill v. Applegarth, 98 Md. 493; Emerson v. Brigham, 10 Mass. 197; Pike v. Fay, 101 Mass. 134; Cole v. Cassidy, 138 Mass. 437; Holst v. Stewart, 154 Mass. 445; Lillegren v. Burns, 135 Minn. 60; Taylor v. Frost, 39 Miss. 328; Utley v. Hill, 155 Mo. 232; Allen v. Wanamaker, 31 N. J. Law, 370; Williams v. Wood, 14 Wend. 126; Marsh v. Folker, 40 N. Y. 562; Wakeman v. Dalley, 51 N. Y. 27; Kountze v. Kennedy, 147 N. Y. 124; Hamrick v. Hogg, 1 Dev. 350; Taylor v. Leith, 26 Ohio St. 428; Staines v. Shore, 16 Pa. St. 200; Erie Iron Works v. Barber, 106 Pa. St. 125; Lamberton v. Dunham, 165 Pa. St. 129; Deppen v. Light, 228 Pa. St. 79; Gibbs v. Odell, 2 Cold. 132; Weeks v. Burton, 7 Vt. 67 Accord.

In Heilbut v. Buckleton, [1913] A. C. 30, Lord Moulton said (p. 48): “In the history of English law we find many attempts to make persons responsible in damages by reason of innocent misrepresentations, and at times it has seemed as though the attempts would succeed. On the Chancery side of the Court the decisions favoring this view usually took the form of extending the scope of the action for deceit. There was a tendency to recognize the existence of what was sometimes called ‘legal fraud,’ i. e., that the making of an incorrect statement of fact without reasonable grounds, or of one which was inconsistent with information which the person had received or had the means of obtaining, entailed the same legal consequences as making it fraudulently. Such a doctrine would make a man liable for forgetfulness or mistake or even for honestly interpreting the facts known to him or drawing conclusions from them in a way which the Court did not think to be legally warranted. The high-water mark of these decisions is to be found in the judgment pronounced by the Court of Appeal in the case of Peek v. Derry, (1887) 37 Ch. D. 541; (1889) 14 App. Cas. 337, when they laid down that where a defendant has made a misstatement of fact and the Court is of opinion that he had no reasonable grounds for believing that it was true he may be made liable in an action of deceit if it has materially tended to induce the plaintiff to do an act by which he has incurred damage. But on appeal to your Lordships’ House this decision was unanimously reversed, and it was definitely laid down that, in order to establish a cause of action sounding in damages for misrepresentation, the statement must be fraudulent or, what is equivalent thereto, must be made recklessly, not caring whether it be true or not. The opinions pronounced in your Lordships’ House in that case show that both in substance and in form the decision was, and was intended to be, a reaffirmation of the old common law doctrine that actual fraud was essential to an action for deceit, and it finally settled the law that an innocent misrepresentation gives no right of action sounding in damages.

“On the Common Law side of the Court the attempts to make a person liable for an innocent misrepresentation have usually taken the form of attempts to extend the doctrine of warranty beyond its just limits and to find that a warranty existed in cases where there was nothing more than an innocent misrepresentation. The present case is, in my opinion, an instance of this. But in respect of the question of the existence of a warranty the Courts have had the advantage of an admirable enunciation of the true principle of law which was made in very early days by Holt, C. J., with respect to the contract of sale. He says: ‘An affirmation at the time of the sale is a warranty, provided it appear on evidence to be so intended.’ So far as decisions are concerned, this has, on the whole, been consistently followed in the Courts of Common Law. But from time to time there have been dicta inconsistent with it which have, unfortunately, found their way into text-books and have given rise to confusion and uncertainty in this branch of the law. For example, one often sees quoted the dictum of Bayley, J., in Cave v. Coleman, 3 Man. & Ry. 2, where, in respect of a representation made verbally during the sale of a horse, he says that ‘being made in the course of a dealing, and before the bargain was complete, it amounted to a warranty’—a proposition that is far too sweeping and cannot be supported. A still more serious deviation from the correct principle is to be found in a passage in the judgment of the Court of Appeal in DeLassalle v. Guildford, [1901] 2 K. B. 215, at p. 221, which was cited to us in the argument in the present case. In discussing the question whether a representation amounts to a warranty or not the judgment says: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment.’

“With all deference to the authority of the Court that decided that case, the proposition which it thus formulates cannot be supported. It is clear that the Court did not intend to depart from the law laid down by Holt, C. J., and cited above, for in the same judgment that dictum is referred to and accepted as a correct statement of the law. It is, therefore, evident that the use of the phrase ‘decisive test’ cannot be defended. Otherwise it would be the duty of a judge to direct a jury that if a vendor states a fact of which the buyer is ignorant, they must, as a matter of law, find the existence of a warranty, whether or not the totality of the evidence shows that the parties intended the affirmation to form part of the contract; and this would be inconsistent with the law as laid down by Holt, C. J. It may well be that the features thus referred to in the judgment of the Court of Appeal in that case may be criteria of value in guiding a jury in coming to a decision whether or not a warranty was intended; but they cannot be said to furnish decisive tests, because it cannot be said as a matter of law that the presence or absence of those features is conclusive of the intention of the parties. The intention of the parties can only be deduced from the totality of the evidence, and no secondary principles of such a kind can be universally true.

“It is, my Lords, of the greatest importance, in my opinion, that this House should maintain in its full integrity the principle that a person is not liable in damages for an innocent misrepresentation, no matter in what way or under what form the attack is made. In the present case the statement was made in answer to an inquiry for information. There is nothing which can by any possibility be taken as evidence of an intention on the part of either or both of the parties that there should be a contractual liability in respect of the accuracy of the statement. It is a representation as to a specific thing and nothing more. The judge, therefore, ought not to have left the question of warranty to the jury, and if, as a matter of prudence, he did so in order to obtain their opinion in case of appeal he ought then to have entered judgment for the defendants notwithstanding the verdict.”

But compare Kirkpatrick v. Reeves, 121 Ind. 280; Mendenhall v. Stewart, 18 Ind. App. 262; McLeod v. Tutt, 2 Miss. 288; Searing v. Lum, 2 South, 683; Indianapolis R. Co. v. Tyng, 63 N. Y. 653; Cobb v. Fogalman, 1 Ired. 440; Mason v. Moore, 73 Ohio St. 275; Loper v. Robinson, 54 Tex. 510; Magill v. Coffmann, (Tex. Civ. App.) 129 S. W. 1146; Smith v. Columbus Buggy Co., 40 Utah, 580; Ogden Resort Co. v. Lewis, 41 Utah, 183; Cameron v. Mount, 86 Wis. 477; Palmer v. Goldberg, 128 Wis. 103; Knudson v. George, 157 Wis. 520.

As to whether an action ought not to be allowed for negligence in the use of language, see Smith, Liability for Negligent Language, 14 Harvard Law Rev. 184; Cunningham v. Pease, 74 N. H. 435; Conway National Bank v. Pease, 76 N. H. 319. The English Directors’ Liability Act (1890), 53 & 54 Vict. c. 64, makes directors and others who issue prospectuses liable in certain cases to compensate persons sustaining loss by reason of any untrue statement in the prospectus, unless it is proved that the persons issuing the prospectus had reasonable ground to believe and did believe that the prospectus was true. See also the statute of Oklahoma, Howe v. Martin, 23 Okl. 561, 567.

Liability for statement made recklessly not knowing whether true or not, see: Cooper v. Schlesinger, 111 U. S. 148; Hindman v. First National Bank, (C. C. A.) 112 Fed. 931; Mueller Furnace Co. v. Cascade Foundry Co., 145 Fed. 596; Einstein v. Marshall, 58 Ala. 153; McCoy v. Prince, 11 Ala. App. 388; Stimson v. Helps, 9 Col. 33; Scholfield Gear Co. v. Scholfield, 71 Conn. 1; Upchurch v. Mizell, 50 Fla. 456; Corbett v. Gilbert, 24 Ga. 454; Miller v. John, 208 Ill. 173; Snively v. Meixsell, 97 Ill. App. 365; West v. Wright, 98 Ind. 335; Graves v. Lebanon Bank, 10 Bush, 23; Stone v. Denny, 4 Met. 151; Fisher v. Mellen, 103 Mass. 503; Beebe v. Knapp, 28 Mich. 53; Stone v. Covell, 29 Mich. 359; Bullitt v. Farrar, 42 Minn. 8; Hamlin v. Abell, 120 Mo. 188; Chase v. Rusk, 90 Mo. App. 25; Ruddy v. Gunby, (Mo.) 180 S. W. 1043; Rowell v. Chase, 61 N. H. 135; Shackett v. Bickford, 74 N. H. 57; Zabriskie v. Smith, 13 N. Y. 322; Bennett v. Judson, 21 N. Y. 238; Taylor v. Commercial Bank, 174 N. Y. 181; Bell v. James, 128 App. Div. 241; Whitehurst v. Life Ins. Co., 149 N. C. 273; Cawston v. Sturgis, 29 Or. 331; Robertson v. Frey, 72 Or. 599; Thompson v. Chambers, 13 Pa. Super. Ct. 213; Mitchell v. Zimmerman, 4 Tex. 75; Katzenstein v. Reid, Murdock & Co., 41 Tex. Civ. App. 106; Benton v. Kuykendall, (Tex. Civ. App.) 160 S. W. 438; Wheeler v. Wheelock, 34 Vt. 553; Agnew v. Hackett, 80 Wash. 236; Cotzhausen v. Simon, 47 Wis. 103.

Compare Ray County Bank v. Hutton, 224 Mo. 42; Ramsey v. Wallace, 100 N. C. 75.

[342]. “The doctrine seems to be well established by authority that the conduct and admissions of a party operate against him in the nature of an estoppel, wherever, in good conscience and honest dealing, he ought not to be permitted to gainsay them. Thus, negligence becomes constructive fraud,—although, strictly speaking, the actual intention to mislead or deceive may be wanting, and the party may be innocent, if innocence and gross negligence may be deemed compatible; and in such cases the maxim is justly applied to him, that where one of two innocent persons must suffer, he shall suffer who by his own acts occasioned the confidence and loss. The application of the maxim to the case before us is obvious. The principle involved in it is kindred to that of an equitable estoppel, the difference being that the application of the estoppel, instead of the maxim, avoids the loss to the innocent party who has been misled by the conduct of another. See 1 Story’s Eq. Jur., secs. 387, 389; Lucas v. Hart, 5 Iowa, 415; Commonwealth v. Moltz, 10 Pa. St. 527, 531; Smith v. McNeal, 68 Pa. St. 164.” Foster, J., in Stevens v. Dennett, 51 N. H. 324, 335.

“The usual form of expressing the situation which founds an estoppel in pais has been that followed in the rulings given, in which, as in many of the older decisions, it is said that an intent to deceive is a necessary element. But under this formula the jury were not prohibited from finding the intention and the estoppel, if, without more, the plaintiff spoke or acted falsely, knowing or having cause to believe that his words or conduct reasonably might influence the defendant’s action. The more modern statement, that one is responsible for the word or act which he knows, or ought to know, will be acted upon by another, includes the older statement that the estoppel comes from an intention to mislead. White v. Duggan, 140 Mass. 18, 20. Tracy v. Lincoln, 145 Mass. 357, 359. O’Donnell v. Clinton, 145 Mass. 461, 463. Washburn v. Hammond, 151 Mass. 132, 141.” Barker. J., in Stiff v. Ashton, 155 Mass. 130, 133.

[343]. Milson v. Gerstenberg, 43 App. D. C. 165; Ballard v. Thibodeau, 109 Me. 559; Kiefer v. Rogers, 19 Minn. 32; Hedin v. Minneapolis Medical Institute, 62 Minn. 146; Flaherty v. Till, 119 Minn. 191; Devero v. Sparks, 189 Mo. App. 500; Craig v. Ward, 1 Abb. Dec. 454; Garvin v. Harrell, 27 Okl. 373; Wells v. Driskell, (Tex. Civ. App.) 149 S. W. 205 Accord.

See Water Com’rs v. Robbins, 82 Conn. 623; Auman v. McKibben, 179 Ill. App. 425; Huntress v. Blodgett, 206 Mass. 318; Bank v. Wood, 189 Mo. App. 62.

As to the fiction of “presumption of knowledge,” see: Hicks v. Stevens, 121 Ill. 186; Ward v. Trimble, 103 Ky. 153; Reynolds v. Evans, 123 Md. 365; Unitype Co. v. Ashcraft, 155 N. C. 63; Collins v. Chipman, 41 Tex. Civ. App. 563. Compare Brooks v. Hamilton, 15 Minn. 26.

[344]. O’Neill v. Conway, 88 Conn. 651; Bethell v. Bethell, 92 Ind. 318; Riley v. Bell, 120 Ia. 618; Gund Brewing Co. v. Peterson, 130 Ia. 301; Davis v. Central Land Co., 162 Ia. 269; Altoona State Bank v. Hart, 82 Kan. 398; Braley v. Powers, 92 Me. 203; Litchfield v. Hutchinson, 117 Mass. 195; Savage v. Stevens, 126 Mass. 207; Teague v. Irwin, 127 Mass. 217; Adams v. Collins, 196 Mass. 422; Huntress v. Blodgett, 206 Mass. 318; Chatham Furnace Co. v. Moffatt, 147 Mass. 403; Riggs v. Thorpe, 67 Minn. 217; Vincent v. Corbitt, 94 Miss. 46; Western Cattle Co. v. Gates, 190 Mo. 391; Paretti v. Rebenack, 81 Mo. App. 494; Leicher v. Keeney, 98 Mo. App. 394, 110 Mo. App. 292; Leach v. Bond, 129 Mo. App. 315; Crosby v. Wells, 73 N. J. Law, 790; Thompson v. Koewing, 79 N. J. Law, 246; Hadcock v. Osmer, 153 N. Y. 604; Modlin v. Roanoke Navigation Co., 145 N. C. 218; Pate v. Blades, 163 N. C. 267; Joines v. Combs, 38 Okl. 380; Gibbens v. Bourland, (Tex. Civ. App.) 145 S. W. 274; Grant v. Huschke, 74 Wash. 257; Tolly v. Poteet, 62 W. Va. 231; Rogers v. Rosenfeld, 158 Wis. 285 Accord. See Roberts v. Anheuser Busch Ass’n, 211 Mass. 449.

In Brownlie v. Campbell, 5 App. Cas. 925, Lord Blackburn said (pp. 952—53): “The Courts of Law had to refer fraud, in which knowledge was an essential ingredient, to a jury. A Court of Equity had to find it for itself, and consequently the judges in Courts of Equity were not driven to be so precisely accurate in stating exactly whether they were going upon the ground that there was a contract or warranty that the thing was so, or whether they were going upon the ground that the party, knowing it was not, and representing that it was, had committed a fraud in doing that. Most of the cases (the leading one is Burrowes v. Loch, 10 Ves. 470, and it is sufficient to mention that, though there were others) when looked at, if they do not absolutely amount to contract, come uncommonly near it. In Burrowes v. Loch a man proposing to lend money on the security of an equitable assignment of a share of what remained due on account of the residue of a testator’s estate, went to the trustee who held the fund and asked him, telling him the facts, ‘I am going to lend money upon the security of this share, has any prior loan upon this been communicated to you so as to make you have prior notice, so as to make that other loan come in before me and cut me out, tell me that, in order that I may know whether I will lend the money or not.’ The party on the other side answered, ‘There has been none such.’ To say that that is not warranty or contract that he has received no such notice is, I think, going very near the wind; if it was not that it was so uncommonly like it, that I cannot make the distinction myself. That would have been sufficient for the Master of the Rolls to say, ‘You have warranted this.’ He also had considerable ground for doubting whether the man had really bona fide forgotten. The man, he seems to have thought, had thought this, ‘I will not take the trouble of a search,’ the fact being that he really knew nothing about this and would not take the trouble of looking, but he boldly made the assertion, ‘I know there is none,’ saying as a fact, ‘I know there is none,’ when the real truth could not be more than ‘I am pretty sure there is none.’ If, when a man thinks it is highly probable that a thing exists, he chooses to say he knows the thing exists, that is really asserting what is false—it is positive fraud. That has been repeatedly laid down, and I think the more it is considered the more clear it becomes. If you choose to say, and say without inquiry, ‘I warrant that,’ that is a contract. If you say, ‘I know it,’ and if you say that in order to save the trouble of inquiring, that is a false representation—you are saying what is false to induce them to act upon it. I think all the cases which have been cited come round to pointing to that, but none of them, as far as I am aware, are in contradiction with that which I have cited from Chief Justice Tindal, and I think there are a good many other authorities to the same effect.”

As to liability where defendant had no reasonable ground to believe what he stated, see Mayer v. Salazar, 84 Cal. 646; McCabe v. Desnoyers, 20 S. D. 581.

Statement as to matter of which obviously defendant could not have personal knowledge, see: Krause v. Cook, 144 Mich. 365; Spead v. Tomlinson, 73 N. H. 46.

[345]. Part of the statement is an abridgment of the report in 6 Bingham, 396.

[346]. Hindman v. First Nat. Bank, (C. C. A.) 112 Fed. 931; Hart v. Tallmadge, 2 Day, 381; Young v. Hall, 4 Ga. 95; Endsley v. Johns, 120 Ill. 469; Leonard v. Springer, 197 Ill. 532; Skeels v. Porter, 165 Ia. 255; Carpenter v. Wright, 52 Kan. 221; Bean v. Herrick, 12 Me. 262; Page v. Bent, 2 Met. 371; Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321; Busterud v. Farrington, 36 Minn. 320; Brownlee v. Hewitt, 1 Mo. App. 360; Bingham v. Fish, 86 N. J. Law, 316; White v. Merritt, 7 N. Y. 352; Hubbard v. Briggs, 31 N. Y. 518; Carpenter v. Lee, 5 Yerg. 265; Paddock v. Fletcher, 42 Vt. 389 Accord.

[347]. Statement of facts and arguments of counsel omitted.

[348]. See West London Bank v. Kitson, 13 Q. B. D. 360; National Bank v. Kershaw Oil Mill, (C. C. A.) 202 Fed. 90. Compare Tackey v. McBain, [1912] A. C. 186.

[349]. Iasigi v. Brown, 17 How. 183; Bank of Montreal v. Thayer, 7 Fed. 622; Merchants Nat. Bank v. Armstrong, 65 Fed. 932; Hindman v. First Nat. Bank, (C. C. A.) 98 Fed. 562, 112 Fed. 931; Western Tel. Co. v. Schriver, 141 Fed. 538; Harrison v. Savage, 19 Ga. 310; Slade v. Little, 20 Ga. 371; Hunnewell v. Duxbury, 154 Mass. 286; Nash v. Minnesota Title & Trust Co., 159 Mass. 437; Rawlings v. Bean, 80 Mo. 614; Lembeck v. Gerken, 88 N. J. Law, 329; McCracken v. West, 17 Ohio, 16; Wells v. Cook, 16 Ohio St. 67 Accord. But see Merchants Nat. Bank v. Robison, 8 Utah, 256.

Person or member of a class to whom defendant expected the representation to be passed on, see Shrewsbury v. Blount, 2 Man. & Gr. 475; Gerhard v. Bates, 2 E. & B. 476; Bedford v. Bagshaw, 4 H. & N. 538; Scott v. Brown, [1892] 2 Q. B. 724; Andrews v. Mockford, [1896] 1 Q. B. 372; Warfield v. Clark, 118 Ia. 69; Wells v. Western Tel. Co., 144 Ia. 605; Henry v. Dennis, 95 Me. 24; Chubbuck v. Cleveland, 37 Minn. 466; Baker v. Crandall, 78 Mo. 584; Stuart v. Bank of Staplehurst, 57 Neb. 569; Addington v. Allen, 11 Wend. 374; Hadcock v. Osmer, 153 N. Y. 604; Cazeaux v. Mali, 25 Barb. 578; Converse v. Sickles, 16 App. Div. 49.

[350]. Statement abridged. Part of opinion omitted.

[351]. In Allaire v. Whitney, 1 Hill, 484, 487, Cowen, J., says that actual damage is not necessary to an action for fraud; and see also Ingraham, J., in Isman v. Loring, 130 App. Div. 845. The same doctrine is stated in Northrop v. Hill, 57 N. Y. 351; and in Van Velsor v. Seaberger, 35 Ill. App. 598; but neither case was one of merely nominal damages. Leadbetter v. Morris, 3 Jones, Law, 543, sustains the view of Cowen, J. The doctrine of Cowen, J., in Allaire v. Whitney is also cited approvingly in 1 Sedgwick on Damages, 8th ed., § 101, and in 1 Sutherland on Damages, 3d ed., § 10.

But the great weight of authority is against this doctrine, and accords with the view taken by the Minnesota court in the above case of Alden v. Wright: viz., that an action of deceit cannot be maintained in the absence of actual damage. See Pollock, Torts, 9 ed., 190, 291; Pollock, Law of Fraud in British India, 22, 23; 1 Jaggard, Torts, 600, 601; Pigott, Torts, 270, 271; McCarrel v. Hayes, 186 Ala. 323; Winkler v. Jerrue, 20 Cal. App. 555; Morrison v. Martin, 84 Conn. 628; Wesselhoeft v. Schanze, 153 Ill. App. 443; Bailey v. Oatis, 85 Kan. 339; Barnard v. Napier, 167 Ky. 824; Reynolds v. Evans, 123 Md. 365; Brackett v. Perry, 201 Mass. 502; Tregner v. Hazen, 116 App. Div. 829; Badger v. Pond, 120 App. Div. 619.

Compare Skowhegan Bank v. Maxfield, 83 Me. 576 (fraudulently inducing plaintiff to pay debts); Garry v. Garry, 187 Mass. 62 (inducing release of inchoate right of dower); Urtz v. New York R. Co., 202 N. Y. 170 (release of disputed claim).

[352]. Statement abridged. Part of opinion omitted.

[353]. In re Pennewell, 119 Fed. 139; Kimmans v. Chandler, 13 Ia. 327; Dunn v. Bishop, (R. I.) 90 Atl. 1073 Accord. Compare Van Vliet Automobile Co. v. Crowell, (Ia.) 149 N. W. 861.

[354]. A new statement has been made covering but one point and only the portion of the opinion relating to that point is given.

[355]. Ely v. Stannard, 46 Conn. 124; Goring v. Fitzgerald, 105 Ia. 507; Briggs v. Brushaber, 43 Mich. 330; Currier v. Poor, 155 N. Y. 344; Hoffman v. Toft, 70 Or. 488 Accord.

See Conway Bank v. Pease, 76 N. H. 319.

[356]. Statement abridged.

[357]. See Graham v. Peale, (C. C. A.) 173 Fed. 9 (delay in asserting claim); Spreckels v. Gorrill, 152 Cal. 383; Barron Estate Co. v. Woodruff Co., 163 Cal. 561 (preparations for building); Williams Crusher & Pulverizer Co. v. Lyth Tile Co., 150 N. Y. Suppl. 6 (expensive investigation preliminary to contract not made).

[358]. “But there is one thing which intervenes between the injuria and the damnum and that is the plaintiff’s action which results in damage. It is clear that a misrepresentation cannot of itself directly produce damage. It requires a means of conveyance, and that is the action which it produces, and which results in damage.”

“... It is the action of the plaintiff, and not the damage, which must be materially induced by the misrepresentation.”

“The fallacy is in regarding the damage, and the action resulting in damage, as the same thing.” Moncrieff, Law of Fraud and Misrepresentation, 187.

[359]. Statement abridged and arguments omitted.

[360]. Reaffirmed in Sigafus v. Porter, 179 U. S. 116. The authorities on each side of this controverted question are collected in a note to George v. Hesse, (100 Tex. 44) 8 L. R. A. N. S. 804. For later cases, see: Harris v. Neil, 144 Ga. 519 (accord); Trayne v. Boardman, 207 Mass. 581; Crawford v. Armacost, 85 Wash. 622 (contra).

[361]. Statement abridged; arguments omitted; also part of opinion.

[362]. Henderson v. Henshall, (C. C. A.) 54 Fed. 320; Tooker v. Alston, 159 Fed. 599; Jordan v. Pickett, 78 Ala. 331; Dingle v. Trask, 7 Col. App. 16; Carondelet Iron Works v. Moore, 78 Ill. 65; Jones v. Foster, 175 Ill. 459; Press v. Hair, 133 Ill. App. 528; Anderson Foundry v. Myers, 15 Ind. App. 385; Moore v. Turbeville, 2 Bibb, 602; Weaver v. Shriver, 79 Md. 530; Silver v. Frazier, 3 All. 382; Parker v. Moulton, 114 Mass. 99; Poland v. Brownell, 131 Mass. 138; Thompson v. Pentecost, 206 Mass. 505; Anderson v. McPike, 86 Mo. 293; Brown v. Kansas City R. Co., 187 Mo. App. 104; Morrill v. Madden, 35 Minn. 493; Grindrod v. Anglo-American Bond Co., 34 Mont. 169; Power v. Turner, 37 Mont. 521; Osborne v. Missouri R. Co., 71 Neb. 180; Saunders v. Hatterman, 2 Ired. 32; Mulholland v. Washington Match Co., 35 Wash. 315; Mosher v. Post, 89 Wis. 602; Farr v. Peterson, 91 Wis. 182; Kaiser v. Nummerdor, 120 Wis. 234; Jacobsen v. Whitely, 138 Wis. 434 Accord.

But see Wilson v. Higbee, 62 Fed. 723; King v. Livingston Mfg. Co., 180 Ala. 118; Mason v. Thornton, 74 Ark. 46; Linington v. Strong, 107 Ill. 295; Robinson v. Reinhart, 137 Ind. 674; Hanks v. McKee, 2 Litt. 227; Bowen v. Carter, 124 Mass. 426; Arnold v. Teele, 182 Mass. 1; Light v. Jacobs, 183 Mass. 206; Bachman v. Travelers Ins. Co., (N. H.) 97 Atl. 223; Fox v. Duffy, 95 App. Div. 202.

“The doctrine ... is not to be extended. It relates merely to seller’s talk.” Sheldon, J., in Townsend v. Niles, 210 Mass. 524, 531.

Equal means of knowledge, see Hill v. Bush, 19 Ark. 522; Strong v. Peters, 2 Root, 93; McDaniell v. Strohecker, 19 Ga. 432; Knight v. Gaultney, 23 Ill. App. 376; Foley v. Cowgill, 5 Blackf. 18; Boddy v. Henry, 113 Ia. 462; Hinchman v. Weeks, 85 Mich. 535; Bradford v. Wright, 145 Mo. App. 623; Conway Nat. Bank v. Pease, 76 N. H. 319; Long v. Warren, 68 N. Y. 426; Crislip v. Cain, 19 W. Va. 438.

Execution of instrument without reading it, see Dunham Lumber Co. v. Holt, 123 Ala. 336; Robinson v. Glass, 94 Ind. 211; Porter v. United Railways, 165 Mo. App. 619; Muller v. Rosenblath, 157 App. Div. 513; Griffin v. Roanoke Lumber Co., 140 N. C. 514.

Reliance on friendship, see Gray v. Reeves, 69 Wash. 374.

[363]. Arguments omitted; also part of opinion.

[364]. Martin v. Burford, (C. C. A.) 181 Fed. 922; Hutchinson v. Gorman, 71 Ark. 305; Scott v. Moore, 89 Ark. 321; Montgomery v. McLaury, 143 Cal. 83; Teague v. Hall, 171 Cal. 668; Eames v. Morgan, 37 Ill. 260; Ladd v. Pigott, 114 Ill. 647; Kehl v. Abram, 210 Ill. 218 (public records); Backer v. Pyne, 130 Ind. 288 (records); McGibbons v. Wilder, 78 Ia. 531; Faust v. Hosford, 119 Ia. 97 (records); Scott v. Burnight, 131 Ia. 507; McKee v. Eaton, 26 Kan. 226 (records of patent office); Davis v. Jenkins, 46 Kan. 19 (records of land office); Carpenter v. Wright, 52 Kan. 221 (deed records); Trimble v. Ward, 97 Ky. 748; Martin v. Jordan, 60 Me. 531; Braley v. Powers, 92 Me. 203; Harlow v. Perry, 113 Me. 239; David v. Park, 103 Mass. 501 (records of patent office); Holst v. Stewart, 161 Mass. 516; Rollins v. Quimby, 200 Mass. 162 (mortgage records); Jackson v. Armstrong, 50 Mich. 65; Smith v. Werkheiser, 152 Mich. 177; Faribault v. Sater, 13 Minn. 223; Redding v. Wright, 49 Minn. 322; Union Bank v. Hunt, 76 Mo. 439; Cottrill v. Krum, 100 Mo. 397; Stonemets v. Head, 248 Mo. 243; Shearer v. Hill, 125 Mo. App. 375; Gerner v. Mosher, 58 Neb. 135 (books of corporation); Perry v. Rogers, 62 Neb. 898; Martin v. Hutton, 90 Neb. 34; Bradbury v. Haines, 60 N. H. 123; Blossom v. Barrett, 37 N. Y. 434 (records of court); Gage v. Peetsch, 16 Misc. 291 (mortgage records); Blumenfield v. Stine, 42 Misc. 411 (records); Blacknall v. Rowland, 108 N. C. 554; Bank of North America v. Sturdy, 7 R. I. 109; Handy v. Waldron, 19 R. I. 618 (failure to inquire of references); Hunt v. Barker, 22 R. I. 18 (deed records); Wright v. United States Mfg. Co., (Tex. Civ. App.) 42 S. W. 789 (tax records); Chamberlain v. Rankin, 49 Vt. 133; Morrill v. Palmer, 68 Vt. 1; Jordan v. Walker, 115 Va. 109; City v. Tacoma Light Co., 17 Wash. 458; Simons v. Cissna, 52 Wash. 115; Borde v. Kingsley, 76 Wash. 613; Hall v. Bank, 143 Wis. 303 (records); Woteshek v. Neuman, 151 Wis. 365; Rogers v. Rosenfeld, 158 Wis. 285 Accord.

See Henry v. Allen, 93 Ala. 197; Hanger v. Evins, 38 Ark. 334; Wheeler v. Baars, 33 Fla. 696 (records); Forbes v. Thorpe, 209 Mass. 570. Compare Campbell v. Frankem, 65 Ind. 591.

Assertion of title, see: Crandall v. Parks, 152 Cal. 772; Hale v. Philbrick, 42 Ia. 81; Young v. Hopkins, 6 T. B. Mon. 18; Cobb v. Wright, 43 Minn. 83; Manley v. Johnson, 85 Vt. 262.

Statements as to boundaries, see: Roberts v. Plaisted, 63 Me. 335; Olson v. Orton, 28 Minn. 36; Clark v. Baird, Seld. Notes, 187; Schwenk v. Naylor, 102 N. Y. 683; Roberts v. Holliday, 10 S. D. 576.

Plaintiff informed of truth by third person, see: Moncrief v. Wilkinson, 93 Ala. 373; Haight v. Hayt, 19 N. Y. 464; Grosjean v. Galloway, 82 App. Div. 380.

Refusal of defendant to put representation in writing, Ettlinger v. Weil, 184 N. Y. 179.

[365]. O’Neill v. Conway, 88 Conn. 651; Antle v. Sexton, 137 Ill. 410; Ledbetter v. Davis, 121 Ind. 119; Speed v. Hollingsworth, 54 Kan. 436; Judd v. Walker, 215 Mo. 312; Miller v. Wissert, 38 Okl. 808; Farris v. Gilder, (Tex. Civ. App.) 115 S. W. 645 Accord.

Compare Cawston v. Sturgis, 29 Or. 331. And see Disney v. Lang, 90 Kan. 309.

[366]. Credle v. Swindell, 63 N. C. 305; Wamsley v. Currence, 25 W. Va. 543 Accord.

See Cagney v. Cuson, 77 Ind. 494. Compare Lewis v. Jewell, 151 Mass. 345.

Representations as to matter of law, see Eaglesfield v. Londonderry, 4 Ch. D. 693, 702–703; Mutual Life Ins. Co. v. Phinney, 178 U. S. 327; Martin v. Wharton, 38 Ala. 637; Lehman v. Shackleford, 50 Ala. 437; McDonald v. Smith, 95 Ark. 523; Kehl v. Abram, 210 Ill. 218; Hill v. Coates, 127 Ill. App. 196; Clodfelter v. Hulett, 72 Ind. 137; Kinney v. Dodge, 101 Ind. 573; Whitman v. Atchison R. Co., 85 Kan. 150; Thompson v. Phoenix Ins. Co., 75 Me. 55; Stevens v. Odlin, 109 Me. 417; Bilafsky v. Conveyancers Ins. Co., 192 Mass. 504; Kerr v. Shurtleff, 218 Mass. 167; Rose v. Saunders, 38 Hun, 575; Unckles v. Hentz, 18 Misc. 644; Moreland v. Atchison, 19 Tex. 303; Texas Cotton Co. v. Denny, (Tex. Civ. App.) 78 S. W. 557; Gormely v. Gymnastic Ass’n, 55 Wis. 350.

Law of another state, see Travelers Protective Ass’n v. Smith, 183 Ind. 59; Schneider v. Schneider, 125 Ia. 1; Anderson v. Heasley, 95 Kan. 572; Wood v. Roeder, 50 Neb. 476.

[367]. “This contention assumes that the defrauded party owes to the party who defrauded him a duty to use diligence to discover the fraud. There is no such obligation. One who perpetrates a fraud cannot complain because his victim continues to have a confidence which a more vigilant person could not have.” Carpenter, J., in Smith v. McDonald, 139 Mich. 225, 229. See Barley v. Walford, 9 Q. B. 197, 209. Compare Thaler v. Neidermeyer, 185 Mo. App. 257.

[368]. The statement has been redrawn and only parts of the opinion are printed.

[369]. See Hicks v. Stevens, 121 Ill. 186.

[370]. The statement of the case has been abridged and only a part of the opinion is given.

[371]. The court decided that the answer was good.

[372]. In accordance with the opinion of the majority of the court see Clarke v. Postan, 6 Car. & P. 423; Stapp v. Partlow, Dudley, (Ga.) 176; Feazle v. Simpson, 2 Ill. 30 (semble); Holmes v. Johnson, Busbee, 44; Britton v. Granger, 13 Ohio Cir. Ct. Rep. 281, 291.

In accordance with the opinion of the minority see Gregory v. Derby, 8 Car. & P. 749, 750 (semble); Cooper v. Armour, 42 Fed. 215, 217; Sheppard v. Furniss, 19 Ala. 760 (semble); Davis v. Sanders, 133 Ala. 275, 278 (semble); Newfield v. Copperman, 15 Abb. Pr. N. S. 360 (semble); Lawyer v. Loomis, 3 Th. & C. 393, 395; Mitchell v. Donanski, 28 R. I. 94; O’Driscoll v. McBurney, 2 N. & McC. 54 (semble); Heyward v. Cuthbert, 4 McC. 354 (semble).

Compare Swift v. Witchard, 103 Ga. 193.

Arrest without warrant, not followed by prosecution, see Auerbach v. Freeman, 43 App. D. C. 176; McDonald v. National Art Co., 69 Misc. 325.

Search warrant issued but no arrest or seizure of property, see Gulsby v. Louisville R. Co., 167 Ala. 122; Hardin v. Hight, 106 Ark. 190; Chicago R. Co. v. Holliday, 30 Okl. 680; Olson v. Haggerty, 69 Wash. 48.

Application for a warrant, none issued, see Schneider v. Schlang, 159 App. Div. 385. But see Kashare v. Robbins, 135 N. Y. Supp. 1041.

Some jurisdictions, however, require legal process of at least prima facie validity. See Strain v. Irwin, 195 Ala. 414; Smith v. Brown, 119 Md. 236; Tiede v. Fuhr, 264 Mo. 622; Segusky v. Williams, 89 S. C. 414.

Cf. Grissom v. Lawler, 10 Ala. App. 540 (plaintiff gave bond after complaint, so no process issued).

[373]. Pippet v. Hearn, 5 B. & Al. 634; Rutherford v. Dyer, 146 Ala. 665; Peterson v. Hoyt, 4 Alaska, 713; Harrington v. Tibbet, 143 Cal. 78; Streight v. Bell, 37 Ind. 550; Shaul v. Brown, 28 Ia. 37; Bell v. Keepers, 37 Kan. 64; Potter v. Gjertsen, 37 Minn. 386; Stocking v. Howard, 73 Mo. 25; Hackler v. Miller, 79 Neb. 209; Dennis v. Ryan, 65 N. Y. 385; Kline v. Shuler, 8 Ired. 484; Chicago R. Co. v. Holliday, 30 Okl. 680; Ward v. Sutor, 70 Tex. 343; Strehlow v. Pettit, 96 Wis. 22; McIntosh v. Wales, 21 Wyo. 397 Accord.

Alexander v. West, 6 Ga. App. 72 Contra.

Prosecution under unconstitutional statute: Murten v. Garbe, 91 Neb. 439.

Court without jurisdiction: Calhoun v. Bell, 136 La. 149. Compare Grorud v. Lossl, 48 Mont. 274.

[374]. 1 Marsh. 12, S. C.

[375]. The statement of the case has been taken from 1 Marsh. 12; the arguments of counsel are omitted.

[376]. See Saville v. Roberts, 1 Ld. Ray. 374; 12 Mod. 208, S. C.

“It is difficult to see on what grounds it can be maintained that a charge of breaking the peace conveys no imputation on the character of the person charged, and it may be doubted whether the authority of the cases above mentioned (Byne v. Moore and Saville v. Roberts) would now be recognized on this point.” Clerk & Lindsell, Torts, (5 ed.) 663.

[377]. Only the opinion of Erle, C. J., is given.

[378]. Hyde v. Greuch, 62 Md. 577; Pixley v. Reed, 26 Minn. 80 (semble); Apgar v. Woolston, 43 N. J. Law, 57. 65 (semble); Bump v. Betts, 19 Wend. 421; Fortman v. Rottier, 8 Ohio St. 548 Accord.

See Brinkley v. Knight, 163 N. C. 194 (release by constable without a hearing).

[379]. Parker v. Langley, 10 Mod. 209; Whitworth v. Hall, 2 B. & Ad. 695; Mellor v. Baddeley, 2 Cr. & M. 675; Watkins v. Lee, 5 M. & W. 270; McCann v. Preneveau, 10 Ont. 573; Poitras v. LeBeau, 14 Can. S. C. 742; Stewart v. Sonneborn, 98 U. S. 187; Steel v. Williams, 18 Ind. 161; West v. Hayes, 104 Ind. 251; Olson v. Neal, 63 Ia. 214; Wood v. Laycock, 3 Met. (Ky.) 192; Smith v. Brown, 119 Md. 236; Hamilburgh v. Shepard, 119 Mass. 30; Wilson v. Hale, 178 Mass. 111; Pixley v. Reed, 26 Minn. 80; Lowe v. Wartman, 47 N. J. Law, 413; Clark v. Cleveland, 6 Hill, 344; Searll v. McCracken, 16 How. Pr. 262; Swartwout v. Dickelman, 12 Hun, 358; Johnson v. Finch, 93 N. C. 205; Forster v. Orr. 17 Or. 447; Scheibler v. Steinburg, 129 Tenn. 614; Luby v. Bennett, 111 Wis. 613 Accord.

Consequently, the Statute of Limitations does not run until the prosecution is terminated. Mayor v. Hall, 12 Can. S. C. 74; Printup v. Smith, 74 Ga. 157; Rider v. Kite, 61 N. J. Law, 8.

Also although discharged by a magistrate, plaintiff can not sue if the grand jury afterwards indict. Hartshorn v. Smith, 104 Ga. 235; Weglein v. Trow Directory Co., 152 App. Div. 705. See Schippel v. Norton, 38 Kan. 567; Knott v. Sargent, 125 Mass. 95. Compare Simmons v. Sullivan, 42 App. D. C. 523 (amended or substitute information, altering the charge); Mistich v. Collette, 136 La. 294 (second prosecution instituted after termination of first and still pending).

[380]. Everything is omitted, except the opinion of the court on the question of the termination of the prosecution.

[381]. Cotton v. Wilson, Minor, 203; Hurgren v. Union Co., 141 Cal. 585; Chapman v. Woods, 6 Blackf. 504; Richter v. Koster, 45 Ind. 440; Coffey v. Myers, 84 Ind. 105; Kelley v. Sage, 12 Kan. 109; Bell v. Matthews, 37 Kan. 686; Yocum v. Polly, 1 B. Mon. 358; Stanton v. Hart, 27 Mich. 539; Swensgaard v. Davis, 33 Minn. 368 (semble); Kennedy v. Holladay, 25 Mo. App. 503; Casebeer v. Drahoble, 13 Neb. 465; Casebeer v. Rice, 18 Neb. 203; Apgar v. Woolston, 43 N. J. Law, 57; Lowe v. Wartman, 47 N. J. Law, 413; Clark v. Cleveland, 6 Hill, 344 (semble); Moulton v. Beecher, 8 Hun, 100; Fay v. O’Neill, 36 N. Y. 11 (semble); Murray v. Lackey, 2 Murph. 368; Rice v. Ponder, 7 Ired. 390; Hatch v. Cohen, 84 N. C. 602; Marcus v. Bernstein, 117 N. C. 31; Douglas v. Allen, 56 Ohio St. 156; Murphy v. Moore, (Pa.) 11 Atl. 665; Driggs v. Burton, 44 Vt. 124; Woodworth v. Mills, 61 Wis. 44; Manz v. Klippel, 158 Wis. 557; McCrosson v. Cummings, 5 Hawn, 391 Accord.

Massachusetts formerly held to the contrary. Parker v. Farley, 10 Cush. 279. But see Graves v. Dawson, 130 Mass. 78, 133 Mass. 419; Langford v. Boston R. Co., 144 Mass. 431; Briggs v. Shepard Mfg. Co., 217 Mass. 446.

Indictment quashed, see Simmons v. Sullivan, 42 App. D. C. 523; Wilkerson v. McGee, 265 Mo. 574; Reit v. Meyer, 160 App. Div. 752.

Case stricken from docket because sent to wrong court, Sandlin v. Anders, 187 Ala. 473.

Termination of a previous civil action.—If a party sues for a malicious arrest or seizure of property in a civil action, a voluntary abandonment of the latter action by the plaintiff therein is equivalent to its termination in favor of his adversary. Arundell v. White, 14 East, 216; Nicholson v. Coghill, 4 B. & C. 21; Pierce v. Street, 3 B. & Ad. 397; Watkins v. Lee, 5 M. & W. 270; Ross v. Norman, 5 Ex. 359; Emery v. Ginnan, 24 Ill. App. 65; Cardival v. Smith, 109 Mass. 158; Ludwick v. Penny, 158 N. C. 104; Mayer v. Walter, 64 Pa. St. 283. Compare Hales v. Raines, 162 Mo. App. 46 (action recommenced after voluntary nonsuit).

The rule is the same as to malicious prosecutions of civil actions without arrest or attachment in jurisdictions where one is allowed to sue for malicious prosecution of a civil action, without more. Wall v. Toomey, 52 Conn. 35; Marbourg v. Smith, 11 Kan. 554; Mitchell v. Sullivan, 30 Kan. 231. See also Wilson v. Hale, 178 Mass. 111; Luby v. Bennett, 111 Wis. 613.

But an abandonment of the previous proceeding, brought about as a compromise, is not a termination in favor of the original defendant. Wilkinson v. Howel, M. & M. 495; Kinsey v. Wallace, 36 Cal. 462 (semble); Waters v. Winn, 142 Ga. 138; Emery v. Ginnan, 24 Ill. App. 65; Fadner v. Filer, 27 Ill. App. 506; Ruehl Brewing Co. v. Atlas Brewing Co., 187 Ill. App. 392; Singer Machine Co. v. Dyer, 156 Ky. 156; Marks v. Gray, 42 Me. 86; Sartwell v. Parker, 141 Mass. 405; Langford v. Boston R. Co., 144 Mass. 431; Rachelman v. Skinner, 46 Minn. 196; McCormick v. Sisson, 7 Cow. 715; Gallagher v. Stoddard, 47 Hun, 101; Atwood v. Beirne, 73 Hun, 547 (but see Reit v. Meyer, 160 App. Div. 752); Welch v. Cheek, 115 N. C. 310; Clark v. Everett, 2 Grant, (Pa.) 416; Mayer v. Walter, 64 Pa. St. 283, 287; Rounds v. Humes, 7 R. I. 535; Russell v. Morgan, 24 R. I. 134. Unless the settlement was obtained by duress of the person or the goods of the original defendant. Morton v. Young, 55 Me. 24; White v. International Textbook Co., 156 Ia. 210.

[382]. Only the opinion of the court is given.

[383]. Anon., 6 Mod. 73; Turner v. Ambler, 10 Q. B. 252; Hailes v. Marks, 7 H. & N. 56; Wheeler v. Nesbitt, 24 How. 544, 550; Stewart v. Sonneborn, 98 U. S. 187; Sanders v. Palmer, 55 Fed. 217; Jordan v. Alabama Co., 81 Ala. 220; Price v. Morris, 122 Ark. 382; Mark v. Rich, 43 App. D. C. 182; Marable v. Mayer, 78 Ga. 710; Joiner v. Ocean Co., 86 Ga. 238; Ames v. Snider, 69 Ill. 376; Barrett v. Spaids, 70 Ill. 408; Leyenberger v. Paul, 12 Ill. App. 635; Morrell v. Martin, 17 Ill. App. 336; Adams v. Lisher, 3 Blackf. 241; Green v. Cochran, 43 Ia. 544; Yocum v. Polly, 1 B. Mon. 358; Medcalfe v. Brooklyn Co., 45 Md. 198; Flickinger v. Wagner, 46 Md. 580; Stone v. Crocker, 24 Pick. 81; Coupal v. Ward, 106 Mass. 289; Hamilton v. Smith, 39 Mich. 222; Smith v. Austin, 49 Mich. 286; Webster v. Fowler, 89 Mich. 303; Cox v. Lauritsen, 126 Minn. 128; Burris v. North, 64 Mo. 426; Renfro v. Prior, 22 Mo. App. 403; Kennedy v. Holladay, 25 Mo. App. 503, 519; Harris v. Quincy R. Co., 172 Mo. App. 261; McDonald v. Goddard Grocery Co., 184 Mo. App. 432; Woodman v. Prescott, 65 N. H. 224; Heyne v. Blair, 62 N. Y. 19; Miller v. Milligan, 48 Barb. 30; Linitzky v. Gorman, 146 N. Y. Supp. 313; Dietz v. Langfitt, 63 Pa. St. 234; Emerson v. Cochran, 111 Pa. St. 619; Bartlett v. Brown, 6 R. I. 37; Welch v. Boston R. Corp., 14 R. I. 609; Stoddard v. Roland, 31 S. C. 342; Kelton v. Bevins, Cooke, (Tenn.) 90; Evans v. Thompson, 12 Heisk. 534; Johnson v. State, 32 Tex. Cr. 58; South Bank v. Suffolk Bank, 27 Vt. 505; Waring v. Hudspeth, 75 Wash. 534; Bailey v. Gollehon, 76 W. Va. 322; Reicher v. Neacy, 158 Wis. 657 Accord.

Definitions of probable cause, see Gulsby v. Louisville R. Co., 167 Ala. 122; Hanchey v. Brunson, 175 Ala. 236; Runo v. Williams, 162 Cal, 444; Redgate v. Southern R. Co., 24 Cal. App. 573; Mark v. Rich, 43 App. D. C. 182; Pianco v. Joseph, 188 Ill. App. 555; Schwartz v. Boswell, 156 Ky. 103; Indianapolis Traction Co. v. Henby, 178 Ind. 239; Banken v. Locke, 136 La. 155; Chapman v. Nash, 121 Md. 608; Gilecki v. Dolemba, 189 Mich. 107; Cox v. Lauritsen, 126 Minn. 128; Lammers v. Mason, 123 Minn. 204; Wilkerson v. McGhee, 163 Mo. App. 356, 153 Mo. App. 343; Humphries v. Edwards, 164 N. C. 154; Cole v. Reece, 47 Pa. Super. Ct. 212; Waring v. Hudspeth, 75 Wash. 534; Bailey v. Gollehon, 76 W. Va. 322.

[384]. Only the opinion of the court is given.

[385]. Conviction reversed.—It is generally agreed that a conviction of the defendant in the criminal proceeding, although subsequently reversed, negatives the absence of probable cause, unless it is also made to appear that the conviction was procured by the fraud of the instigator of the criminal proceeding. Accordingly, a declaration alleging the conviction and its reversal, but not alleging any such fraud, is bad on demurrer. Reynolds v. Kennedy, 1 Wils. 232; Crescent Co. v. Butcher’s Co., 120 U. S. 141; Knight v. Internat. R. Co., 61 Fed. 87; Blackman v. West Co., 126 Fed. 252; Casey v. Dorr, 94 Ark. 433; Carpenter v. Sibley, 153 Cal. 215; Goodrich v. Warner, 21 Conn. 432 (semble); McElroy v. Catholic Press Co., 254 Ill. 290; Dahlberg v. Grace, 178 Ill. App. 97; Adams v. Bicknell, 126 Ind. 210; Moffatt v. Fisher, 47 Ia. 473; Bowman v. Brown, 52 Ia. 437; Olson v. Neal, 63 Ia. 214; Barber v. Scott, 92 Ia. 52; White v. International Text Book Co., 156 Ia. 210; Ross v. Hixon, 46 Kan. 550, 555; Spring v. Besore, 12 B. Mon. 551; Kaye v. Kean, 18 B. Mon. 839; Duerr v. Ky. Co., 132 Ky. 228; Witham v. Gowen, 14 Me. 362; Payson v. Caswell, 22 Me. 212; Sidelinger v. Trowbridge, 113 Me. 537; Whitney v. Peckham, 15 Mass. 243; Dennehey v. Woodsum, 100 Mass. 195, 197; Phillips v. Kalamazoo, 53 Mich. 33 (see Spalding v. Lowe, 56 Mich. 366); Boogher v. Hough, 99 Mo. 183; Nehr v. Dobbs, 47 Neb. 863; Burt v. Place, 4 Wend. 591; Palmer v. Avery, 41 Barb. 290; Francisco v. Schmeelk, 156 App. Div. 335; Root v. Rose, 6 N. D. 575; Thienes v. Francis, 69 Or. 165; Herman v. Brookerhoff, 8 Watts, 240 (semble); Welch v. Boston R. Co., 14 R. I. 609; Hull v. Sprague, 23 R. I. 188; Memphis Co. v. Williamson, 9 Heisk. 314; Saunders v. Baldwin, 112 Va. 431; Topolewski v. Plankinton Packing Co., 143 Wis. 52. Compare Carpenter v. Hood, 172 Mich. 533; Platt v. Bonsall, 136 App. Div. 397.

As to fraudulently procured plea of guilty, see Johnson v. Girdwood, 7 Misc. 651; Holtman v. Bullock, 142 Ky. 335.

In a few jurisdictions the conviction, although set aside, is treated as conclusive evidence of probable cause, proof of fraud in its procurement being inadmissible. Hartshorn v. Smith, 104 Ga. 235; Clements v. Odorless Co., 67 Md. 461, 605 (Bryan, J., diss.); Parker v. Huntington, 7 Gray, 36; Griffis v. Sellars, 4 Dev. & B. 176.

In Virginia, on the contrary, a count alleging a conviction and its reversal is sufficient without any allegation in regard to fraud. Jones v. Finch, 84 Va. 204 (semble); Blanks v. Robinson, 1 Va. Dec. 600; Va. L. J. (1886) 398 (overruling Womack v. Circle, 32 Grat. 324). See Hale v. Boylen, 22 W. Va. 234.

Commitment for grand jury.—The holding of the defendant for the grand jury is prima facie evidence of probable cause. Miller v. Chicago Co., 41 Fed. 898; Ewing v. Sanford, 19 Ala. 605; Price Mercantile Co. v. Cuilla, 100 Ark. 316; Ganea v. Southern Co., 51 Cal. 140; Diemer v. Herber, 75 Cal. 287; Ritchey v. Davis, 11 Ia. 124; Ross v. Hixon, 46 Kan. 550; Danzer v. Nathan, 145 App. Div. 448; Giesener v. Healy, 86 Misc. 16; Ricord v. Central Co., 15 Nev. 167; Ash v. Marlow, 20 Ohio, 119; Raleigh v. Cook, 60 Tex. 438; Hale v. Boylen, 22 W. Va. 234.

Finding of indictment.—The finding of an indictment is prima facie evidence of probable cause. Garrard v. Willet, 4 J. J. Marsh. 628; Sharpe v. Johnston, 76 Mo. 660; Peck v. Chouteau, 91 Mo. 138; Wilkerson v. McGhee, 153 Mo. App. 343, 163 Mo. App. 356.

Failure of the prosecution.—The failure of the original prosecution is in some jurisdictions regarded as prima facie evidence of want of probable cause. Miller v. Chicago R. Co., 41 Fed. 898; Hanchey v. Brunson, 175 Ala. 236; Tucker v. Bartlett, 97 Kan. 163; Straus v. Young, 36 Md. 246; Whitfield v. Westbrook, 40 Miss. 311; Bostick v. Rutherford, 4 Hawks, 83; Downing v. Stone, 152 N. C. 525; Barhigh v. Tammany, 158 Pa. St. 545; McKenzie v. Canning, 42 Utah, 529 (but compare Smith v. Clark, 37 Utah, 116); Jones v. Finch, 84 Va. 204; Waring v. Hudspeth, 75 Wash. 534; Saunders v. First Nat. Bank, 85 Wash. 125; Brady v. Stiltner, 40 W. Va. 289; Fetty v. Huntington Loan Co., 70 W. Va. 688; Winn v. Peckham, 42 Wis. 493; Lawrence v. Cleary, 88 Wis. 473; Manz v. Klippel, 158 Wis. 557. In others there is no such presumption. Incledon v. Berry, 1 Camp. 203 n; Stewart v. Sonneborn, 98 U. S. 187, 195; Thompson v. Beacon Co., 56 Conn. 493; Plummer v. Collins, 1 Boyce, 281; Skidmore v. Bricker, 77 Ill. 164; Bitting v. Ten Eyck, 82 Ind. 421; Prine v. Singer Machine Co., 176 Mich. 300; Williams v. Vanmeter, 8 Mo. 339; Boeger v. Langenberg, 97 Mo. 390; Eckerle v. Higgins, 159 Mo. App. 177 (distinguishing nol. pros. and discharge on preliminary examination—see also Smith v. Glynn, (Mo.) 144 S. W. 149); Harris v. Quincy R. Co., 172 Mo. App. 261; Scott v. Simpson, 1 Sandf. 601; Central Light Co. v. Tyron, 42 Okl. 86; Eastman v. Monastes, 32 Or. 291; Bekkeland v. Lyons, 96 Tex. 255; McIntosh v. Wales, 21 Wyo. 397. See also Grorud v. Lossl, 48 Mont. 274.

Order vacating attachment as prima facie evidence of want of probable cause in action for malicious attachment, see Petruschke v. Kamerer, 131 Minn. 320.

[386]. The statement of the evidence, the argument for the defendant, and the concurring opinion of Holroyd, J., are omitted.

[387]. Snow v. Allen, 1 Stark. 502; Abrath v. North Eastern Co., 11 Q. B. Div. 440, 11 App. Cas. 247; Scougall v. Stapleton, 12 Ont. 206; Stewart v. Sonneborn, 98 U. S. 187; Blunt v. Little, 3 Mason, 102; Cuthbert v. Galloway, 35 Fed. 466 (semble); Miller v. Chicago Co., 41 Fed. 898; Coggswell v. Bohn, 43 Fed. 411; Staunton v. Goshorn, 94 Fed. 52; McLeod v. McLeod, 73 Ala. 42; Jordan v. Alabama Co., 81 Ala. 220; Lemay v. Williams, 32 Ark. 166; Bliss v. Wyman, 7 Cal. 257; Jones v. Jones, 71 Cal. 89; Brooks v. Bradford, 4 Col. App. 410; Mark v. Rich, 43 App. D. C. 182; Joiner v. Ocean Co., 86 Ga. 238; Baker v. Langley, 3 Ga. App. 751; Ross v. Innis, 26 Ill. 259; Ames v. Snider, 69 Ill. 376; Barrett v. Spaids, 70 Ill. 408; Brown v. Smith, 83 Ill. 291; Roy v. Goings, 112 Ill. 656; Aldridge v. Churchill, 28 Ind. 62; Paddock v. Watts, 116 Ind. 146; Adams v. Bicknell, 126 Ind. 210; Mesher v. Iddings, 72 Ia. 553; Schippel v. Norton, 38 Kan. 567; Dyer v. Singer Machine Co., 164 Ky. 538; Carrigan v. Graham, 166 Ky. 333; Stevens v. Fassett, 27 Me. 266; Soule v. Winslow, 66 Me. 447; Cooper v. Utterbach, 37 Md. 282; Hyde v. Greuch, 62 Md. 577; Torsch v. Dell, 88 Md. 459; Stone v. Swift, 4 Pick. 389; Monaghan v. Cox, 155 Mass. 487; Stanton v. Hart, 27 Mich. 539; Perry v. Sulier, 92 Mich. 72; Moore v. Northern Co., 37 Minn. 147; Boyd v. Mendenhall, 53 Minn. 274; Alexander v. Harrison, 38 Mo. 258; Burris v. North, 64 Mo. 426; Whitfield v. Westbrook, 40 Miss. 311; Grorud v. Lossl, 48 Mont. 274; Jonasen v. Kennedy, 39 Neb. 313; Magowan v. Rickey, 64 N. J. Law, 402; Hall v. Suydam, 6 Barb. 83; Richardson v. Virtue, 2 Hun, 208; Turner v. Dinnegar, 20 Hun, 465; Beal v. Robeson, 8 Ired. 276; Ash v. Marlow, 20 Ohio, 119; El Reno Gas Co. v. Spurgeon, 30 Okl. 88; Sims v. Jay, 53 Okl. 183; Walter v. Sample, 25 Pa. St. 275; Smith v. Walter, 125 Pa. St. 453; Bartlett v. Brown, 6 R. I. 37; Jackson v. Bell, 5 S. D. 257; Kendrick v. Cypert, 10 Humph. 291; St. Johnsbury Co. v. Hunt, 59 Vt. 294; Forbes v. Hagman, 75 Va. 168; Saunders v. Baldwin, 112 Va. 431; Hightower v. Union Trust Co., 88 Wash. 179; Sutton v. McConnell, 46 Wis. 269; Manz v. Klippel, 158 Wis. 557 Accord.

But see Brewer v. Jacobs, 22 Fed. 217; Stewart v. Mulligan, 11 Ga. App. 660; Smith v. Glynn, (Mo.) 144 S. W. 149; Downing v. Stone, 152 N. C. 525; Ramsey v. Arrott, 64 Tex. 320; Glasgow v. Owen, 69 Tex. 167; Shannon v. Jones, 76 Tex. 141; Tiedeman’s Note, 21 Am. L. Reg. N. S. 582.

The advice must be that of a lawyer, and not a layman. Murphy v. Larson, 77 Ill. 172; McCullough v. Rice, 59 Ind. 580; Olmstead v. Partridge, 16 Gray, 381; Beal v. Robeson, 8 Ired. 276. Even though the layman be a justice of the peace. Stephens v. Gravit, 136 Ky. 479; Coleman v. Heurich, 2 Mack. 189; Straus v. Young, 36 Md. 246; Monaghan v. Cox, 155 Mass. 487 (semble); Gee v. Culver, 12 Or. 228; Brobst v. Ruff, 100 Pa. St. 91; Sutton v. McConnell, 46 Wis. 269. But see Ball v. Rawles, 93 Cal. 222; Sisk v. Hurst, 1 W. Va. 53. Compare Marks v. Hastings, 101 Ala. 165.

The lawyer must have no personal interest in the controversy. Smith v. King, 62 Conn. 515; White v. Carr, 71 Me. 555.

In Hazzard v. Flury, 120 N. Y. 223, the Court of Appeals held that mistaken advice of counsel upon a point of law would not justify the client, since every one is presumed to know the law. Surely that much-abused fiction has seldom been so glaringly perverted in behalf of injustice. See Singer Machine Co. v. Dyer, 156 Ky. 156.

[388]. Vann v. McCreary, 77 Cal. 434; Boyd v. Mendenhall, 53 Minn. 274; Acton v. Coffman, 74 Ia. 17; Johnson v. Miller, 82 Ia. 693; Sharpe v. Johnston, 76 Mo. 660; Ames v. Rathbun, 37 How. Pr. 289; Laird v. Taylor, 66 Barb. 139; Davenport v. Lynch, 6 Jones, (N. C.) 545; Powell v. Woodbury, 85 Vt. 504 Accord.

Withholding facts from or unfairstatement to counsel. Fowlkes v. Lewis, 10 Ala. App. 543; Rothschach v. Diven, 97 Kan. 38; Indianapolis Traction Co. v. Henby, 178 Ind. 239; Lammers v. Mason, 123 Minn. 204; Bowers v. Walker, 192 Mo. App. 230; Lathrop v. Mathers, 143 App. Div. 376; Baer v. Chambers, 67 Wash. 357; Rogers v. Van Eps, 143 Wis. 396; Boyer v. Bugher, 19 Wyo. 463.

Must state facts which might have been ascertained with reasonable diligence. Weddington v. White, 148 Ky. 671; Virtue v. Creamery Mfg. Co., 123 Minn. 17; Duffy v. Scheerger, 91 Neb. 511. Contra—enough to make full and fair disclosure of known facts, Roby v. Smith, 40 Okl. 280.

[389]. The statement of facts is taken from 3 L. J. K. B. N. S. 35. The arguments of counsel and the concurring opinions of Patteson and Taunton, JJ., are omitted.

[390]. Willans v. Taylor, 6 Bing. 183; Busst v. Gibbons, 30 L. J. Ex. N. S. 75; Brown v. Hawkes, [1891] 2 Q. B. 718; Stewart v. Sonneborn, 98 U. S. 187; Brown v. Selfridge, 224 U. S. 189; Sanders v. Palmer, 55 Fed. 217; Staunton v. Goshorn, 94 Fed. 52; Gulsby v. Louisville R. Co., 167 Ala. 122; Louisville R. Co. v. Stephenson, 6 Ala. App. 578; Ball v. Rawles, 93 Cal. 222; Johnson v. Southern R. Co., 157 Cal. 333; Smith v. King, 62 Conn. 515; Carroll v. Perry, 43 App. D. C. 363; Boyd v. Mendenhall, 53 Minn. 274; Helwig v. Beckner, 149 Ind. 131; Indianapolis Traction Co. v. Henby, 178 Ind. 239; Lawrence v. Leathers, 31 Ind. App. 414; Henderson v. McGruder, 49 Ind. App. 682; Atchison Co. v. Allen, 70 Kan. 743; Michael v. Matson, 81 Kan. 360; Metrop. Co. v. Miller, 114 Ky. 754; Moser v. Fable, 164 Ky. 517; Medcalfe v. Brooklyn Co., 45 Md. 198; Thelin v. Dorsey, 59 Md. 539; Campbell v. Baltimore R. Co., 97 Md. 341; Bishop v. Frantz, 125 Md. 183; Good v. French, 115 Mass. 201; Bartlett v. Hawley, 38 Minn. 308; Shafer v. Hertzig, 92 Minn. 171; Williams v. Pullman Co., 129 Minn. 97; Harris v. Quincy R. Co., 172 Mo. App. 261; McNulty v. Walker, 64 Miss. 198; Cohn v. Saidel, 71 N. H. 558; Magowan v. Rickey, 64 N. J. Law, 402; Hartdorn v. Webb Mfg. Co., (N. J.) 75 Atl. 893; Heyne v. Blair, 62 N. Y. 19; Fagnan v. Knox, 66 N. Y. 525; Anderson v. How, 116 N. Y. 336; L. I. Union v. Seitz, 180 N. Y. 243; Viele v. Gray, 10 Abb. Pr. 1; McCarthy v. Barrett, 144 App. Div. 727; Galley v. Brennan, 156 App. Div. 443; Stanford v. Grocery Co., 143 N. C. 419; Humphries v. Edwards, 164 N. C. 154; Dunnington v. Loeser, (Okl.) 149 Pac. 1161; Leahey v. March, 155 Pa. St. 458; Roessing v. Pittsburgh R. Co., 226 Pa. St. 523; McCoy v. Kalbach, 242 Pa. St. 123; Cooper v. Flemming, 114 Tenn. 40; Landa v. Obert, 45 Tex. 539; Finigan v. Sullivan, 65 Wash. 625; Bailey v. Gollehon, 76 W. Va. 322 Accord. But see Wilson v. Thurlow, 156 Ia. 656; Griffin v. Dearborn, 210 Mass. 308.

[391]. Abrath v. North Eastern Co., 11 Q. B. Div. 440, 448, 455; Wiggin v. Coffin, 3 Story, 1; Johnson v. Ebberts, 11 Fed. 129, 6 Sawy. 538, S. C.; Brewer v. Jacobs, 22 Fed. 217; Gulsby v. Louisville R. Co., 167 Ala. 122; Hammond v. Rowley, 86 Conn. 6; Coleman v. Allen, 79 Ga. 637; South Western Co. v. Mitchell, 80 Ga. 438; Stewart v. Mulligan, 11 Ga. App. 660; McElroy v. Catholic Press Co., 254 Ill. 290; White v. International Text Book Co., 156 Ia. 210; Foltz v. Buck, 89 Kan. 381; Metrop. Co. v. Miller, 114 Ky. 754; Pullen v. Glidden, 66 Me. 202; Wills v. Noyes, 12 Pick. 324; Mitchell v. Wall, 111 Mass. 492; Ross v. Langworthy, 13 Neb. 492; Callahan v. Kelso, 170 Mo. App. 338; Gee v. Culver, 13 Or. 598; Squires v. Job, 50 Pa. Super. Ct. 289; Culberston v. Cabeen, 29 Tex. 247, 256; Sebastian v. Cheney, (Texas) 24 S. W. 970; Barron v. Mason, 31 Vt. 189, 198; Forbes v. Hagman, 75 Va. 168; Spear v. Hiles, 67 Wis. 350; Boyer v. Bugher, 19 Wyo. 463 Accord.

In Abrath v. North Eastern Co., supra, malice was defined by Brett, M. R., p. 448, as “a malicious intention in the mind of the defendant, that is, not with the mere intention of carrying the law into effect,” and by Bowen, L. J., as “a malicious spirit, that is, an indirect and improper motive, and not in furtherance of justice.” See also especially Pullen v. Glidden, and Johnson v. Ebberts, cited supra in this note; Magowan v. Rickey, 64 N. J. Law, 402; Peterson v. Reisdorph, 49 Neb. 529; Nobb v. White, 103 Ia. 352; Brooks v. Bradford, 4 Col. App. 410; Jackson v. Bell, 5 S. D. 257.

Definitions of “malice” in this connection, see Fowlkes v. Lewis, 10 Ala. App. 543; Redgate v. Southern R. Co., 24 Cal. App. 573; Cincinnati R. Co. v. Cecil, 164 Ky. 377; Lammers v. Mason, 123 Minn. 204; Downing v. Stone, 152 N. C. 525; Wright v. Harris, 160 N. C. 542.

[392]. Farmer v. Darling, 4 Burr. 1971; Busst v. Gibbons, 30 L. J. Ex. N. S. 75; Coulter v. Dublin Co., 60 L. T. 180; Hicks v. Faulkner, 46 L. T. Rep. 127 (affirming S. C. 8 Q. B. D. 167); Wheeler v. Nesbitt, 24 How. 544; Stewart v. Sonneborn, 98 U. S. 191; Wiggin v. Coffin, 3 Story, 1; Burnap v. Albert, Taney, 244; Benson v. McCoy, 36 Ala. 710; Lunsford v. Dietrich, 93 Ala. 565; Bozeman v. Shaw, 37 Ark. 160; Levy v. Brannan, 39 Cal. 485; Harkrader v. Moore, 44 Cal. 144; Porter v. White, 5 Mackey, 180; Harpham v. Whitney, 77 Ill. 32; Krug v. Ward, 77 Ill. 603; Boyd v. Mendenhall, 53 Minn. 274; Frankfurter v. Bryan, 12 Ill. App. 549; Gardiner v. Mays, 24 Ill. App. 286; Newell v. Downs, 8 Blackf. 523; Oliver v. Pate, 43 Ind. 132; Ritchey v. Davis, 11 Ia. 124; Atchison Co. v. Watson, 37 Kan. 773; Gourgues v. Howard, 27 La. Ann. 339; Humphries v. Parker, 52 Me. 502; Medcalfe v. Brooklyn Co., 45 Md. 198; Mitchell v. Wall, 111 Mass. 492; Bartlett v. Hawley, 38 Minn. 308; Greenwade v. Mills, 31 Miss. 464; Sharpe v. Johnston, 59 Mo. 557; Finley v. St. Louis Co., 99 Mo. 559; March v. Vandiver, 181 Mo. App. 281; McKown v. Hunter, 30 N. Y. 625; Farnam v. Feeley, 56 N. Y. 451; Heyne v. Blair, 62 N. Y. 19; Thompson v. Lumley, 50 How. Pr. 105; Voorhes v. Leonard, 1 Th. & C. 148; Johnson v. Chambers, 10 Ired. 287; Gee v. Culver, 12 Or. 228, 13 Or. 598; Schofield v. Ferrers, 47 Pa. St. 194; Dietz v. Langfitt, 63 Pa. St. 234; Gilliford v. Windel, 108 Pa. St. 142; Bell v. Graham, 1 N. & M’C. 278; Campbell v. O’Bryan, 9 Rich. 204; Willis v. Knox, 5 S. C. 474; Caldwell v. Bennett, 22 S. C. 1; Evans v. Thompson, 12 Heisk. 534; Stansell v. Cleveland, 64 Tex. 660; Shannon v. Jones, 76 Tex. 141; Barron v. Mason, 31 Vt. 189; Carleton v. Taylor, 50 Vt. 220; Scott v. Shelor, 28 Grat. 891; Forbes v. Hagman, 75 Va. 168 Accord.

But see, contra, Wilson v. Bowen, 64 Mich. 133.

[393]. The statement of facts and the argument for the defendant are abridged; the concurring opinions of Coleridge, Wightman, and Erie, JJ., are omitted.

[394]. In Exch. Ch. 1 T. R. 510, reversing the judgment of the Court of Exchequer in Sutton v. Johnstone, 1 T. R. 493. Judgment of Exch. Ch. affirmed on error, in Dom. Proc. 1 T. R. 784. S. C. 1 Bro. P. C. 76 (2d ed.).

[395]. 1 T. R. 545.

[396]. The case alluded to is perhaps Broad v. Ham, 5 B. N. C. 722. By the report of S. C. in 8 Scott, 40, the cause appears to have been tried before Maule, B. (Reporter’s note.)

[397]. Broad v. Ham, 5 B. N. C. 722; Turner v. Ambler, 10 Q. B. 252; Roret v. Lewis, 5 D. & L. 371; Hinton v. Heather, 14 M. & W. 131; Williams v. Banks, 1 F. & F. 557; Chatfield v. Comerford, 4 F. & F. 1008; Shrosbery v. Osmaston, 37 L. T. Rep. 792; Steed v. Knowles, 79 Ala. 446; Harkrader v. Moore, 44 Cal. 144; Ball v. Rawles, 93 Cal. 222; Galloway v. Stewart, 49 Ind. 156; Donnelly v. Burkett, 75 Ia. 613; Humphries v. Parker, 52 Me. 502, 505; Mitchell v. Wall, 111 Mass. 492; Bartlett v. Hawley, 38 Minn. 308; Peck v. Chouteau, 91 Mo. 138; Chicago Co. v. Kriski, 30 Neb. 215; Howard v. Thompson, 21 Wend. 319; Burlingame v. Burlingame, 8 Cow. 141; Fagnan v. Knox, 66 N. Y. 525; Anderson v. How, 116 N. Y. 336; Wass v. Stephens, 128 N. Y. 123; Wilson v. King, 39 N. Y. Super. Ct. 384; Linitzky v. Gorman, 146 N. Y. Supp. 313; Thienes v. Francis, 69 Or. 165; King v. Colvin, 11 R. I. 582; Scott v. Shelor, 28 Grat. 891; Forbes v. Hagman, 75 Va. 168; Spear v. Hiles, 67 Wis. 350; Baker v. Kilpatrick, 7 Br. Col. L. R. 150; Harcourt v. Aiken, 22 N. Zeal. L. R. 389; Clift v. Birmingham, 4 W. Aust. L. R. 20 Accord.

[398]. Only the opinion of the court is given.

[399]. Brown v. Hawkes, [1891] 2 Q. B. 718; Grant v. Book, 25 Nova Scotia, 266 Accord.

Malice may be inferred from want of probable cause. Hanchey v. Brunson, 175 Ala. 236; Hawkins v. Collins, 5 Ala. App. 522; Fowlkes v. Lewis, 10 Ala. App. 543; Price v. Morris, 122 Ark. 382; Redgate v. Southern R. Co., 24 Cal. App. 573; Stewart v. Mulligan, 11 Ga. App. 660; Holliday v. Coleman, 12 Ga. App. 779; McElroy v. Catholic Press Co., 254 Ill. 290; Pontius v. Kimball, 56 Ind. App. 144; Singer Machine Co. v. Dyer, 156 Ky. 156; Mertens v. Mueller, 119 Md. 525; Griffin v. Dearborn, 210 Mass. 308; Moscob v. Frank Ridlon Co., 216 Mass. 193; Krzyszke v. Kamin, 163 Mich. 290; Bowers v. Walker, 192 Mo. App. 230; Grorud v. Lossl, 48 Mont. 274; Galley v. Brennan, 156 App. Div. 443; Kellogg v. Ford, 70 Or. 213; Cole v. Reece, 47 Pa. Super. Ct. 212; Keener v. Jeffries, 54 Pa. Super. Ct. 553; Tufshinsky v. Pittsburgh R. Co., 61 Pa. Super. Ct. 121; Fetty v. Huntington Loan Co., 70 W. Va. 688.

It is not a necessary inference. Hanowitz v. Great Northern R. Co., 122 Minn. 241; Smith v. Glynn, (Mo.) 144 S. W. 149; Chicago R. Co. v. Holliday, 30 Okl. 680; Boyer v. Bugher, 19 Wyo. 463.

It is not inferred from failure to prosecute, Malloy v. Chicago R. Co., 34 S. D. 330, nor from discharge or acquittal. Waring v. Hudspeth, 75 Wash. 534.

Want of probable cause is not to be inferred from malice. Runo v. Williams, 162 Cal. 444; Redgate v. Southern R. Co., 24 Cal. App. 573; Plummer v. Collins, 1 Boyce, 281; McElroy v. Catholic Press Co., 254 Ill. 290; Shadden v. Butler, 164 Ia. 1; Hudson v. Nolen, 142 Ky. 824; Chapman v. Nash, 121 Md. 608; Griffin v. Dearborn, 210 Mass. 308; Callahan v. Kelso, 170 Mo. App. 338; Motsinger v. Sink, 168 N. C. 548; Kellogg v. Ford, 70 Or. 213; McCoy v. Kalbach, 242 Pa. St. 123; Boyer v. Bugher, 19 Wyo. 463; McIntosh v. Wales, 21 Wyo. 397. But see Squires v. Job, 50 Pa. Super. Ct. 289.

[400]. Only a portion of the opinion is given.

[401]. Whitehurst v. Ward, 12 Ala. 264; Shannon v. Simms, 146 Ala. 673; Whipple v. Gorsuch, 82 Ark. 252; Adams v. Lisher, 3 Blackf. 241; Bruley v. Rose, 57 Ia. 651; Parkhurst v. Masteller, 57 Ia. 474; White v. International Text Book Co., 156 Ia. 210; Lancaster v. McKay, 103 Ky. 616, 624; Bacon v. Towne, 4 Cush. 217, 241; Threefoot v. Nuckols, 68 Miss. 116; Morris v. Corson, 7 Cow. 281; Turner v. Dinnegar, 20 Hun, 465; Bell v. Pearcy, 5 Ired. 83; Johnson v. Chambers, 10 Ired. 287; Thurber v. Eastern Ass’n, 118 N. C. 129 Accord. See Indianapolis Traction Co. v. Henby, 178 Ind. 239.

[402]. Watson v. Norbury, Sty. 3, 201; Brown v. Chapman, 1 W. Bl. 427; Cotton v. James, 1 B. & Ad. 128; Whitworth v. Hall, 2 B. & Ad. 695; Hay v. Weakley, 5 Car. & P. 361; Farley v. Danks, 4 E. & B. 493; Johnson v. Emerson, L. R. 6 Ex. 329; Metropolitan Bank v. Pooley, 10 App. Cas. 210; Stewart v. Sonneborn, 98 U. S. 187; Wilkinson v. Goodfellow Co., 141 Fed. 218; McDonald v. Goddard Grocery Co., 184 Mo. App. 432; Lawton v. Green, 5 Hun, 157; Cohen v. Nathaniel Fisher & Co., 135 App. Div. 238; King v. Sullivan, (Tex. Civ. App.) 92 S. W. 51; Carleton v. Taylor, 50 Vt. 220 (semble) Accord.

Similarly an action will lie without proof of special damage for a malicious and unfounded presentation of a petition to wind up a trading company. Quartz Co. v. Eyre, 11 Q. B. Div. 674; Wyatt v. Palmer, [1899] 2 Q. B. 106 (semble).

Malicious inquisition of lunacy, see Lockenour v. Sides, 57 Ind. 360; Dordoni v. Smith, 82 N. J. Law, 525.

Malicious proceeding for suspension or removal of an officer. Fulton v. Ingalls, 165 App. Div. 323.

Malicious prosecution of unfounded claim for a patent. Strelitzer v. Schnaier, 135 App. Div. 384.

[403]. The arguments of counsel are omitted.

[404]. Malicious arrest on civil process. Stribler v. Jones, 1 Lev. 276; Daw v. Swain, 1 Sid. 424; Parker v. Langley, Gilb. 163, 10 Mod. 209, S. C.; Goslin v. Wilcock, 2 Wils. 302; Sinclair v. Eldred, 4 Taunt. 7; Pierce v. Street, 3 B. & Ad. 397; Cozer v. Pilling, 4 B. & C. 26; Saxon v. Castle, 6 A. & E. 652; Roret v. Lewis, 5 D. & L. 371; Medina v. Grove, 10 Q. B. 152; Daniels v. Fielding, 16 M. & W. 200 (semble, see Clerk & Lindsell, Torts, 5 ed. 683); Moore v. Guardner, 16 M. & W. 595 (semble); Ross v. Norman, 5 Ex. 359; Ventress v. Rosser, 73 Ga. 534; Joiner v. Ocean Co., 86 Ga. 238; Cardival v. Smith, 109 Mass. 158; Hamilburgh v. Shepard, 119 Mass. 30; Cotter v. Nathan & Hurst Co., 218 Mass. 315; Stanfield v. Phillips, 78 Pa. St. 73; Emerson v. Cochran, 111 Pa. St. 619; Ward v. Sutor, 70 Tex. 343.

Malicious holding to bail. Steer v. Scoble, Cro. Jac. 667; Berry v. Adamson, 6 B. & C. 528; Small v. Gray, 2 Car. & P. 605.

Malicious seizure of property on civil process. Sanders v. Powell, 1 Lev. 129, 1 Sid. 183, 1 Keb. 603, S. C.; Craig v. Hasell, 4 Q. B. 481; Medina v. Grove, 10 Q. B. 152; Redway v. McAndrew, L. R. 9 Q. B. 74; Kirksey v. Jones, 7 Ala. 622; Vesper v. Crane Co., 165 Cal. 36; Juchter v. Boehm, 67 Ga. 534; Wilcox v. McKenzie, 75 Ga. 73; Lawrence v. Hagerman, 56 Ill. 68; Spaids v. Barrett, 57 Ill. 289; Western Co. v. Wilmarth, 33 Kan. 510; Wills v. Noyes, 12 Pick. 324; Savage v. Brewer, 16 Pick. 453; O’Brien v. Barry, 106 Mass. 300; Bobsin v. Kingsbury, 138 Mass. 538; Grant v. Reinhart, 33 Mo. App. 74; Smith v. Smith, 56 How. Pr. 316; Jaksich v. Guisti, 36 Nev. 104; Tyler v. Mahoney, 166 N. C. 509; Fortman v. Rottier, 8 Ohio St. 548; Sommer v. Wilt, 4 S. & R. 19; Mayer v. Walter, 64 Pa. St. 283.

Malicious replevin. O’Brien v. Barry, 106 Mass. 300; McPherson v. Runyon, 41 Minn. 524; Martin v. Rexford, 170 N. C. 540.

Malicious issue of an injunction. Munce v. Black, 7 Ir. C. L. R. 475; McFarlane v. Garrett, 3 Pennewill, 36; Landis v. Wolf, 206 Ill. 392; Krzyszke v. Kamin, 163 Mich. 290; Manlove v. Vick, 55 Miss. 567; Burt v. Smith, 84 App. Div. 47; Coal Co. v. Upson, 40 Ohio St. 17; Hess v. German Co., 37 Or. 297; Batson v. Paris Co., 73 S. C. 368; Powell v. Woodbury, 85 Vt. 504; Williams v. Ainsworth, 121 Wis. 600 (semble).

Malicious procurement of the execution of a search warrant. Cooper v. Booth, 3 Esp. 135, S. C. 1 T. R. 535 (cited); Elsee v. Smith, 2 Chit. R. 304, 1 D. & R. 97, S. C.; Wyatt v. White, 29 L. J. Ex. 193; Carey v. Sheets, 60 Ind. 17, 67 Ind. 375; Whitson v. May, 71 Ind. 269; Olson v. Tvete, 46 Minn. 225; Miller v. Brown, 3 Mo. 94; Boeger v. Langenberg, 97 Mo. 390.

Malicious garnishment. King v. Yarbray, 136 Ga. 212; Lopes v. Connolly, 210 Mass. 487.

Levy of execution under fraudulent judgment. Atlanta Ice Co. v. Reeves, 136 Ga. 294.

See also Hope v. Evered, 17 Q. B. Div. 338; Lea v. Charrington, 23 Q. B. Div. 45; Utting v. Berney, 5 T. L. Rep. 39.

[405]. Only the opinion of the court on this point is given.

[406]. Savile v. Roberts, 1 Ld. Ray. 374; Purton v. Honnor, 1 B. & P. 205; Cotterell v. Jones, 11 C. B. 713; Quartz Co. v. Eyre, 11 Q. B. Div. 674; Ray v. Law, Pet. C. C. 207; Tamblyn v. Johnston, 126 Fed. 267, 270; Mitchell v. South Western Co., 75 Ga. 398 (but see Slater v. Kimbro, 91 Ga. 217); Smith v. Mich. Co., 175 Ill. 619; Bonney v. King, 201 Ill. 47; McCormick v. Weber, 187 Ill. App. 290; Smith v. Hintrager, 67 Ia. 109; Cattle Co. v. Nat. Bank, 127 Ia. 153, 158; White v. International Text Book Co., 156 Ia. 310; Cade v. Yocum, 8 La. Ann. 477; McNamee v. Mink, 49 Md. 122; Sup. Lodge v. Unverzagt, 76 Md. 104 (see Clements v. Odorless Co., 67 Md. 461); Woodmansie v. Logan, 1 Penningt. 93; Potts v. Imlay, 1 South. 330; State v. Meyer, 40 N. J. Law, 252; Ely v. Davis, 111 N. C. 24 (semble); Terry v. Davis, 114 N. C. 31; Carpenter v. Hanes, 167 N. C. 551; Cincinnati Co. v. Bruck, 61 Ohio St. 489 (explaining Pope v. Pollock, 46 Ohio St. 367); Kramer v. Stock, 10 Watts, 115; Mayer v. Walter, 64 Pa. St. 283; Muldoon v. Rickey, 103 Pa. St. 110; Emerson v. Cochran, 111 Pa. St. 619, 622; Michell v. Donanski, 28 R. I. 94, 97 (semble); Smith v. Adams, 27 Tex. 28; Johnson v. King, 64 Tex. 226; Nowotny v. Grona, 44 Tex. Civ. App. 325; J. Calisher Co. v. Bloch, (Tex. Civ. App.) 147 S. W. 683; Abbott v. Thorne, 34 Wash. 692; Luby v. Bennett, 111 Wis. 613 (semble); Cross v. Comm. Agency, 18 N. Zeal. L. R. 153 Accord.

Burnap v. Albert, Taney, 244; Cooper v. Armour, 42 Fed 215, 217; Wade v. Nat. Bank, 114 Fed. 377; Eastin v. Stockton Bank, 66 Cal. 123; Berson v. Ewing, 84 Cal. 89; Hoyt v. Macon, 2 Col. 113 (semble); Whipple v. Fuller, 11 Conn. 582; Wall v. Toomey, 52 Conn. 35; Payne v. Donegan, 9 Ill. App. 566 (semble); Lockenour v. Sides, 57 Ind. 360; McCardle v. McGinley, 86 Ind. 538; Whitesell v. Study, 37 Ind. App. 429; Marbourg v. Smith, 11 Kan. 554; Cox v. Taylor, 10 B. Mon. 17; Woods v. Finnell, 13 Bush. 628; Johnson v. Meyer, 36 La. Ann. 333 (semble); Allen v. Codman, 139 Mass. 136 (semble); Wilson v. Hale, 178 Mass. 111; Brand v. Hinchman, 68 Mich. 590; Antcliff v. June, 81 Mich. 477; McPherson v. Runyon, 41 Minn. 524; O’Neill v. Johnson, 53 Minn. 439; Eickhoff v. Fidelity Co., 74 Minn. 139; Virtue v. Creamery Mfg. Co., 123 Minn. 17; Brown v. City, 90 Mo. 377 (semble); Smith v. Burrus, 106 Mo. 94; McCormick Co. v. Willan, 63 Neb. 391; Pangburn v. Bull, 1 Wend. 345; Dempsey v. Lepp, 52 How. Pr. 11; Smith v. Smith, 20 Hun, 555 (semble); Willard v. Holmes, 21 N. Y. Supp. 998 (semble); (but see Willard v. Holmes, 142 N. Y. 492; Paul v. Fargo, 84 App. Div. 9); Kolka v. Jones, 6 N. D. 461; Sawyer v. Shick, 30 Okl. 353; Lipscomb v. Shofner, 96 Tenn. 112; Swepson v. Davis, 109 Tenn. 99; Closson v. Staples, 42 Vt. 209 Contra.

In Eastin v. Stockton Bank, supra, the court said: “The English cases which deny the right to maintain the action, stand upon the ground that the successful defendant is adequately compensated for the damages he sustains by the costs allowed him by the statute. Those costs, it seems, include the attorney’s charges for preparing the case for trial in all its parts, the fees of the witnesses and the court officials, and even the honorarium of the barrister who conducted the case in court. The reason upon which the English rule rests would not, therefore, seem to apply here, where the costs recoverable under the statute are confined to much narrower limits....

“Two other objections made to the maintenance of the action,—first, the claim that if such suits are allowed, litigation will become interminable, because every successful action will be followed by another, alleging malice in the prosecution of the former; and second, that if the defendant may sue for damages sustained by an unfounded prosecution, the plaintiff may equally bring an action when the defendant makes a groundless defence,—are well answered in the article already alluded to [Mr. Lawson’s note, 21 A. L. Reg. N. S. 281, 353]: ‘To the first objection, it is enough to say that the action will never lie for an unsuccessful prosecution, unless begun and carried on with malice and without probable cause. With the burden of this difficult proof upon him, the litigant will need a very clear case before he will be willing to begin a suit of this character. The second argument fails to distinguish between the position of the parties, plaintiff and defendant, in an action at law. The plaintiff sets the law in motion; if he does so groundlessly and maliciously he is the cause of the defendant’s damage. But the defendant stands only on his legal rights—the plaintiff having taken his case to court, the defendant has the privilege of calling upon him to prove it to the satisfaction of the judge or jury, and he is guilty of no wrong in exercising this privilege.’”

In Doane v. Hescock, 155 N. Y. Supp. 210, the court (Appellate Term, First Department) says: “It clearly appears that the complaint does not state facts sufficient to constitute a cause of action for abuse of process, nor are the allegations sufficient to support an action for malicious prosecution of a civil action in this state. There is no allegation that the action resulted in damages to the business or reputation of the defendant or that in any way his personal or property rights were interfered with. The sole allegation as to damage is the trouble, inconvenience, and expense of defending the action. This is not sufficient. Paul v. Fargo, 84 App. Div. 9, 11, 13 (dissenting opinion, 21), 82 N. Y. Supp. 369; Fulton v. Ingalls, 165 App. Div. 323, 326, 151 N. Y. Supp. 130.”

Malicious excessive attachment. Tamblyn v. Johnston, (C. C. A.) 126 Fed. 267; Mills v. Larrance, 217 Ill. 446; Savage v. Brewer, 16 Pick. 453; Paul v. Fargo, 84 App. Div. 9; Sommer v. Wilt, 4 S. & R. 19.

[407]. The averments of the count are abridged and the arguments of counsel are omitted.

[408]. Fivaz v. Nicholls, 2 C. B. 501, 514 (semble); Grove v. Brandenburg, 7 Blackf. 234 Accord.

“Pechell v. Watson came to be considered in Flight v. Leman. Its authority was recognized, but the latter case was decided against the plaintiff, who sued for maintenance, on the ground, I own I should have thought the narrow ground, that to instigate a suit was not maintenance, though to support one already instituted was.” Per Coleridge, C. J., in Bradlaugh v. Newdegate, 11 Q. B. Div. 1, 8.

See also Alabaster v. Harness, [1894] 2 Q. B. 897, [1895] 1 Q. B. 339; Grieg v. National Union, 22 T. L. Rep. 274; Goodyear Co. v. White, 2 N. J. Law Journ. 150, 10 Fed. Cas. 752, no. 5602; Breeden v. Frankford Ins. Co., 220 Mo. 327, 373, 378–420, 424–443. Compare Metropolitan Bank v. Pooley, 10 App. Cas. 210, 217–218.

[409]. Only the opinion of the Chief Justice upon the point of abuse of legal process is given.

[410]. Heywood v. Collinge, 9 A. & E. 268; King v. Yarbray, 136 Ga. 212; Wicker v. Hotchkiss, 62 Ill. 107 (semble); Emery v. Ginnan, 24 Ill. App. 65 (semble); Whitesell v. Study, 37 Ind. App. 429 (semble); Page v. Cushing, 38 Me. 523; Wood v. Graves, 144 Mass. 365; White v. Apsley Co., 181 Mass. 339; White v. Apsley Co., 194 Mass. 97; Malone v. Belcher, 216 Mass. 209; Pixley v. Reed, 26 Minn. 80 (semble); Rossiter v. Minn. Co., 37 Minn. 296; Bebinger v. Sweet, 6 Hun, 478; Buffalo Co. v. Everest, 30 Hun, 586 (semble); Hazard v. Harding, 63 How. Pr. 326; Prough v. Entriken, 11 Pa. St. 81; Mayer v. Walter, 64 Pa. St. 283; Lauzon v. Charroux, 18 R. I. 467 Accord.

As to the distinction between malicious prosecution and abuse of process, see Waters v. Winn, 142 Ga. 138; Wright v. Harris, 160 N. C. 542; Cooper v. Southern R. Co., 165 N. C. 578.

In Wood v. Graves, 144 Mass. 365, Allen, J., said, p. 366: “There is no doubt that an action lies for the malicious abuse of lawful process, civil or criminal. It is to be assumed, in such a case, that the process was lawfully issued for a just cause, and is valid in form, and that the arrest or other proceeding upon the process was justifiable and proper in its inception. Perhaps the most frequent form of such abuse is by working upon the fears of the person under arrest for the purpose of extorting money or other property, or of compelling him to sign some paper, to give up some claim, or to do some other act, in accordance with the wishes of those who have control of the prosecution. The leading case upon this subject is Grainger v. Hill, 4 Bing. N. C. 212, where the owner of a vessel was arrested on civil process, and the officer, acting under the directions of the plaintiffs in the suit, used the process to compel the defendant therein to give up his ship’s register, to which they had no right. He was held entitled to recover damages, not for maliciously putting the process in force, but for maliciously abusing it, to effect an object not within its proper scope.”

In Mayer v. Walter, 64 Pa. St. 283, Sharswood, J., said: “There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it. Thus, if a man is arrested, or his goods seized in order to extort money from him, even though it be to pay a just claim other than that in suit, or to compel him to give up possession of a deed or other thing of value, not the legal object of the process, it is settled that in an action for such malicious abuse it is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without reasonable or probable cause: Grainger v. Hill, 4 Bing. N. C. 212. It is evident that when such a wrong has been perpetrated, it is entirely immaterial whether the proceeding itself was baseless or otherwise. We know that the law is good, but only if a man use it lawfully.

“On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated to be gained by it other than its proper effect and execution. As every man has a legal power to prosecute his claims in a court of law and justice, no matter by what motives of malice he may be actuated in doing so, it is necessary in this class of cases to aver and prove that he has acted not only maliciously, but without reasonable or probable cause. It is clearly settled also, that the proceeding must be determined finally before any action lies for the injury; because, as it is said in Arundell v. Tregono, Yelv. 117, the plaintiff will clear himself too soon, viz., before the fact tried, which will be inconvenient; besides, the two determinations might be contrary and inconsistent.”

To proceed unfairly and oppressively but without seeking to compel another to do what he is not obliged to do, e. g., to enter up judgment on a note after 10 P. M. and to bring immediate execution, is not a ground of action according to Docter v. Riedel, 96 Wis. 158. But see dissenting opinion of Marshall, J.

[411]. Only the opinion of the court is given.

[412]. Y. B. 7 Hen. VI. 43; 1 Roll. Ab. 101, pl. 1, S. C.; Holliday v. Sterling, 62 Mo. 321 Accord.

[413]. Edwards v. Wooton, 12 Rep. 35; Peacock v. Raynell, 2 Brownl. 151; Barrow v. Lewellin, Hob. 152; Hick’s Case, Hob. 375; Rex v. Burdett, 4 B. & Ald. 95 Accord.

[414]. Phillips v. Jansen, 2 Esp. 624; Ward v. Smith, 4 Car. & P. 302; Sharp v. Skues, (C. A.) 25 T. L. Rep. 336; Warnock v. Mitchell, 43 Fed. 428; Western Co. v. Cashman, 149 Fed. 367; Spaits v. Poundstone, 87 Ind. 522; Yousling v. Dare, 122 Ia. 539; Lyon v. Lash, 74 Kan. 745; Buckwalter v. Gossow, 75 Kan. 147; McIntosh v. Matherly, 9 B. Mon. 119; Roberts v. English Co., 155 Ala. 414; Dickinson v. Hathaway, 122 La. 644; Gambrill v. Schooley, 93 Md. 48; Rumney v. Worthley, 186 Mass. 144, 145; Youmans v. Smith, 153 N. Y. 214, 218; Lyle v. Clason, 1 Caines, 581; Waistel v. Holman, 2 Hall, 172; Prescott v. Tousey, 50 N. Y. Super. Ct. 12; Shepard v. Lamphier, 84 Misc. 498; Fonville v. McNease, Dudley, 303; State v. Syphrett, 27 S. C. 29; Fry v. McCord, 95 Tenn. 678; Sylvis v. Miller, 96 Tenn. 94; Wilcox v. Moon, 63 Vt. 481; Wilcox v. Moon, 64 Vt. 450 Accord.

See Ahern v. Maguire, A. M. & O. 39.

If two persons combine in sending a libel to the plaintiff, each is guilty of a publication to the other. Spaits v. Poundstone, 87 Ind. 522, 524, 525.

In Virginia, by statute, an action lies for insulting words written or spoken, although not read or heard by a third person. Rolland v. Batchelder, 84 Va. 664; Strode v. Clement, 90 Va. 553.

[415]. Part of the case, not relating to publication, is omitted.

[416]. Wenman v. Ash, 13 C. B. 836; Jones v. Williams, 1 T. L. Rep. 572; Sesler v. Montgomery, 78 Cal. 486, 489 (semble); Luick v. Driscoll, 13 Ind. App. 279; Wilcox v. Moon, 63 Vt. 481; Wilcox v. Moon, 64 Vt. 450 Accord.

But a communication by the libeller to his own wife is said not to be a publication. Wennhak v. Morgan, 20 Q. B. D. 635; Sesler v. Montgomery, 78 Cal. 486; Trumbull v. Gibbons, 3 City H. Rec. 97. But see State v. Shoemaker, 101 N. C. 690. See also Central R. Co. v. Jones, 18 Ga. App. 414 (dictation by officer of corporation to co-employee); Kirschenbaum v. Kaufman (N. Y. City Ct.), 50 N. Y. Law Journ. 406 (defamatory matter uttered to business partner in course of business). It would be more accurate to say that the communication in such cases is privileged. In Powell v. Gelston, [1916] 2 K. B. 615, a libellous letter, privileged as a communication to A, was sent to B, who asked for the information in his own name at A’s request. The letter was opened and read by A only.

[417]. M’Coombs v. Tuttle, 5 Blackf. 431; Van Cleef v. Lawrence, 2 City H. Rec. 41 Accord.

[418]. Wyatt v. Gore, Holt, 299; Wenman v. Ash, 13 C. B. 836; Kiene v. Ruff, 1 Ia. 482; Allen v. Wortham, 89 Ky. 485; Rumney v. Worthley, 186 Mass. 144; Schenck v. Schenck, Spencer, 208; State v. McIntire, 115 N. C. 769; Wilcox v. Moon, 64 Vt. 540; Adams v. Lawson, 17 Gratt. 250 Accord.

See Fox v. Broderick, 14 Ir. C. L. R. 453; Callan v. Gaylord, 3 Watts, 321.

Slanderous statements to plaintiff in presence of his counsel, Massee v. Williams, 207 Fed. 222.

Sending libellous letter to plaintiff’s attorney, Brown v. Elm City Lumber Co., 167 N. C. 9.

[419]. Only the opinion of the court is given.

[420]. Jones v. Davers, Cro. Eliz. 496; Price v. Jenkings, Cro. Eliz. 865; Amann v. Damm, 8 C. B. N. S. 597; Kiene v. Ruff, 1 Ia. 42; Hurtert v. Weines, 27 Ia. 134; Mielenz v. Quasdorf, 68 Ia. 726; Economopoulos v. A. G. Pollard Co., 218 Mass. 294; Wormouth v. Cramer, 3 Wend. 394 Accord.

See Bechtell v. Shatter, Wright, (Ohio) 107. Conf. Anon., Moore, 182; Gibs v. Jenkins, Hob. 335; Zenobio v. Axtell, 6 T. R. 162; Jenkins v. Phillips, 9 Car. & P. 766; Hickley v. Grosjean, 6 Blackf. 351; Keenholts v. Becker, 3 Den. 346; Rahauser v. Barth, 3 Watts, 28; Zeig v. Ort, 3 Chandl. 26; K. v. H., 20 Wis. 239; Filber v. Dautermann, 26 Wis. 518; Simonsen v. Herald Co., 61 Wis. 626; Pelzer v. Benishy, 67 Wis. 291.

[421]. Anon., Sty. 70; Force v. Warren, 15 C. B. N. S. 806; Desmond v. Brown, 33 Ia. 13; Marble v. Chapin, 132 Mass. 225, 226; Cameron v. Cameron, 162 Mo. App. 110; Traylor v. White, 185 Mo. App. 325; Broderick v. James, 3 Daly, 481 Accord.

Mailing of post card. Three views have been expressed as to whether the mailing of a post card is a publication.

(1) The mailing is a publication. Sadgrove v. Hole, [1901] 2 K. B. 1, 4, 5 (semble); Logan v. Hodges, 146 N. C. 38; Spence v. Burt, 18 Lanc. L. Rev. 251; Robinson v. Jones, L. R. 4 Ir. 391 (semble); McCann v. Edinburgh Co., L. R. 28 Ir. 24, 28 per Palles, C. B.

(2) The mailing is prima facie a publication. Odgers, Libel and Slander (4 ed.), 153, 281.

(3) The mailing is prima facie not a publication, i. e., is not a publication unless evidence is given that the post card was read in transitu. Steele v. Edwards, 15 Ohio Cir. Ct. 52, 58.

Publication in ignorance of the libel. The dissemination of a libel by a carrier or newsvender or a public library, who neither knew nor ought to have known of the libel and who had no reason to suppose that the newspaper was likely to contain libellous matters, gives no cause of action. Emmens v. Pottle, 16 Q. B. D. 354; Martin v. Trustees of British Museum, 10 T. L. Rep. 338. But the proprietor of a circulating library was held liable for giving out a book containing defamatory statements, because his freedom from negligence did not appear. Vizetelly v. Mudie’s Library, [1900] 2 Q. B. 170. See also Morris v. Ritchie, Court of Sess., March 12, 1902, 4 F. 645.

[422]. The case has been much abridged.

[423]. Phillips v. Bradshaw, 167 Ala. 199; Allen v. Fincher, 187 Ala. 599; Pouchan v. Godeau, 167 Cal. 692; United Mine Workers v. Cromer, 159 Ky. 605; Tawney v. Simonson, 109 Minn. 341; Sweaas v. Evenson, 110 Minn. 304; Vanloon v. Vanloon, 159 Mo. App. 255; Jones v. Banner, 172 Mo. App. 132; Bigley v. National Fidelity Co., 94 Neb. 813; Phillips v. Barber, 7 Wend. 439; Church v. New York Tribune Ass’n, 135 App. Div. 30; Rossiter v. New York Press Co., 141 App. Div. 339; Spencer v. Minnick, 41 Okl. 613; McGeary v. Leader Pub. Co., 52 Pa. Super. Ct. 35; Lehmann v. Medack, (Tex. Civ. App.) 152 S. W. 438 Accord. Compare Marshall v. Chicago Herald Co., 185 Ill. App. 224; Willfred Coal Co. v. Sapp, 193 Ill. App. 400; Sweet v. Post Pub. Co., 215 Mass. 450; Corr v. Sun Printing & Pub. Ass’n, 177 N. Y. 131. But see M. v. J., 164 Wis. 39.

A lunatic is liable for torts generally and also for a libel. Mordaunt v. Mordaunt, 39 L. J. Pr. & M. 57, 59. But it is another illustration of the rule of the principal case that defamatory words spoken by a lunatic whose insanity was obvious or known to all the hearers, are not actionable. Yeates v. Reed, 4 Blackf. 463; Irvine v. Gibson, 117 Ky. 306; Dickinson v. Barber, 9 Mass. 225, 227; Bryant v. Jackson, 6 Humph. 199. So also of words spoken and understood as a jest. Donoghue v. Hayes, Hayes, 265. Drunkenness is no defence. Kendrick v. Hopkins, Cary, 133; Gates v. Meredith, 7 Ind. 440.

The old rule of construing defamatory statements in mitiori sensu was long ago exploded. See Odgers, Libel & Slander (5 ed.), 111–113.

Explanation of words by context, see Deitchman v. Bowles, 166 Ky. 285; McCurda v. Lewiston Journal Co., 109 Me. 53; Wing v. Wing, 66 Me. 62; Larsen v. Brooklyn Eagle, 165 App. Div. 4; Guenther v. Ridgway Co., 170 App. Div. 725; Eddy v. Cunningham, 69 Wash. 544; Leuch v. Berger, 161 Wis. 564.

[424]. Only the opinion of the court is given.

[425]. Massee v. Williams, (C. C. A.) 207 Fed. 222; Ivie v. King, 167 N. C. 174; Olympia Waterworks v. Mottman, 88 Wash. 694 Accord. See Ex parte Nelson, 251 Mo. 63.

[426]. A portion of the opinion is omitted.

[427]. The article was as follows: “He Waxed Eloquent. H. P. Hanson fined ten dollars for refusing payment of car fare.... H. P. Hanson, a real estate and insurance broker of South Boston, emerged from the seething mass of humanity that filled the dock and indulged in a wordy bout with policeman Hogan, who claimed to have arrested Hanson on the charge of evading car fare and being drunk at the same time. The judge agreed that the prisoner was sober, but on the charge of evasion of car fare the evidence warranted the fining of the eloquent occupant of the dock ten dollars without costs, which he paid.”

[428]. The opinion of the dissenting judges is supported by the decisions and dicta in other jurisdictions. Butler v. Barret, 130 Fed. 944 (semble); Every Evening Co. v. Butler, 144 Fed. 916; Taylor v. Hearst, 107 Cal. 262; Hulbert v. New Co., 111 Ia. 490; Davis v. Marxhausen, 86 Mich. 281, 103 Mich. 315 (semble); Clark v. North American Co., 203 Pa. St. 346 (semble); Hutchinson v. Robinson, 21 N. S. W. L. R. (Law) 130 (semble). Compare Newton v. Grubbs, 155 Ky. 479; Ellis v. Brockton Pub. Co., 198 Mass. 538; Dunlop v. Sundberg, 55 Wash. 609.

[429]. Compare Gandia v. Pettingill, 222 U. S. 452; Van Wiginton v. Pulitzer Pub. Co., (C. C. A.) 218 Fed. 795; Jones v. R. L. Polk & Co., 190 Ala. 243 (publishing of white woman that she is colored); Ball v. Evening American Co., 237 Ill. 592; MacIntyre v. Fruchter, 148 N. Y. Suppl. 786 (“fit only for negroes to associate with”); Spencer v. Looney, 116 Va. 767 (assertion of white person that he was colored); Galveston Tribune v. Guisti, (Tex. Civ. App.) 134 S. W. 239.

[430]. This abridged statement has been substituted. The arguments and all but one of the opinions have been omitted.

[431]. Compare Northrop v. Tibbles, (C. C. A.) 215 Fed. 99. See Smith, Jones v. Hulton, Three Conflicting Views as to a Question of Defamation, 60 University of Pennsylvania Law Rev. 365, 461.

[432]. The statement of the pleadings is abridged, and only the opinion of Littledale, J., is given. Bayley and Parke, JJ., concurred.

[433]. That the defendant repeated a defamation, giving the name of the author, seems originally to have been a justification. Northampton’s Case, 12 Rep. 134 (Fourth Resolution). But the name of the author was to be given at the time of repetition, and not for the first time in the plea. Davis v. Lewis, 7 T. R. 17. The words, furthermore, had to be given with sufficient exactness to ground an action against the author. Maitland v. Goldney, 2 East, 426. Doubts were thrown upon the validity of this justification in Lewis v. Walter, 4 B. & Al. 605. The whole doctrine was repudiated, as to libel, in De Crespigny v. Wellesley, 5 Bing. 392, and Tidman v. Ainslie, 10 Ex. 63; and as to slander, in McPherson v. Daniels; Watkin v. Hall, L. R. 3 Q. B. 396.

See to same effect Age-Herald Pub. Co. v. Waterman, 188 Ala. 272; Washington Herald Co. v. Berry, 41 App. D. C. 322; Brewer v. Chase, 121 Mich. 526; Hagener v. Pulitzer Pub. Co., 172 Mo. App. 436; Vallery v. State, 42 Neb. 123; Walling v. Commercial Advertiser, 165 App. Div. 26; Galveston Tribune v. Johnson, (Tex. Civ. App.) 141 S. W. 302. See also Whitney v. Moignard, 24 Q. B. D. 630.

In Speight v. Gosnay, 60 L. J. Q. B. 231, the words were not actionable without special damage and the special damage resulted only from unauthorized repetition by a third person.

[434]. This short statement of the case, taken from 3 Camp. 214, has been substituted for the declaration which is set out at considerable length in the original report.

[435]. “When our ancestors years ago drew the distinction between libel and slander, they exercised that kind of wise discretion which they always exercised over the whole field of the common law. It would to my mind be very dangerous for us nowadays to relax in any way the rule of law which confines actions for spoken words, in the absence of proof of special damage, to a very limited number of cases.” Vaughan Williams, L. J., in Dauncey v. Holloway, [1901] 2 K. B. 441, 448. See also A. L. Smith, L. J., Id. 447. But compare Colby v. Reynolds, 6 Vt. 489, 493; Tillson v. Robbins, 68 Me. 295.

The distinction sanctioned in the principal case between oral and written scandal still obtains in England and the United States. The definition of a libel as a written publication calculated to bring another into hatred, ridicule, or contempt, is also universally recognized in English-speaking countries. As it is a pure question of fact for the jury whether the publication in a given case comes within this definition, it has not seemed advisable to bring together in this book the multitudinous instances which have been passed upon. A full collection of the cases may be found in Odgers, Libel and Slander, (5 ed.) 18–38; Townshend, Slander and Libel; (4 ed.) 203–221; 25 Cyc. 255–264.

An action for a libel made in the course of judicial proceedings cannot be maintained until the proceedings have terminated in favor of the person defamed, Masterson v. Brown, 72 Fed. 136.

[436]. There is great diversity of opinion as to what words, imputing the commission of a crime, are actionable per se. The authorities may be classified as follows:—

I. Words imputing a criminal offence punishable corporally.

In Hawes’s Case, March, 113 (speaking against common prayer); Heake v. Moulton, Yelv. 90; Walden v. Mitchell, 2 Ventr. 265; Scoble v. Lee, 2 Show. 32 (regrating); McCabe v. Foot, 15 L. T. Rep. 115; Elliott v. Ailsberry, 2 Bibb, 473 (fornication); M’Gee v. Wilson, Litt. S. C. 187 (unchastity); Mills v. Wimp, 10 B. Mon. 417 (semble); Buck v. Hersey, 31 Me. 558 (drunkenness); Wagaman v. Byers, 17 Md. 183 (adultery); Birch v. Benton, 26 Mo. 153 (whipping one’s wife); Speaker v. McKenzie, 26 Mo. 255 (whipping one’s mother); Billings v. Wing, 7 Vt. 439 (“he snaked his mother out of doors by the hair of her head; it was the day before she died”), the words uttered were held not to give a right of action, since they imputed crimes punishable only by fine, or by imprisonment merely as a consequence of the non-payment of the fine.

II. Words imputing a criminal offence and involving moral turpitude. Sipp v. Coleman, 179 Fed. 997; Taylor v. Gumpert, 96 Ark. 354; Frisbie v. Fowler, 2 Conn. 707; Hoag v. Hatch, 23 Conn. 585; Page v. Merwin, 54 Conn. 426; Kennenberg v. Neff, 74 Conn. 62; Yakavicze v. Valentukevicious, 84 Conn. 350; Reitan v. Goebel, 33 Minn. 151.

III. Words imputing a criminal offence, involving moral turpitude and punishable corporally. Redway v. Gray, 31 Vt. 292 (qualifying Billings v. Wing, 7 Vt. 439); Murray v. McAllister, 38 Vt. 167.

IV. Words imputing a criminal offence involving disgrace. Miller v. Parish, 8 Pick. 384; Brown v. Nickerson, 5 Gray, 1; Kenney v. McLaughlin, 5 Gray, 3; Ranger v. Goodrich, 17 Wis. 78; Mayer v. Schleichter, 29 Wis. 646; Gibson v. Gibson, 43 Wis. 23; Geary v. Bennett, 53 Wis. 444.

V. Words imputing a criminal offence subjecting the offender to infamous punishment. Shipp v. McCraw, 3 Murph. 463; Brady v. Wilson, 4 Hawks. 93; Skinner v. White, 1 Dev. & Bat. 471; Wall v. Hoskins, 5 Ired. 177; Wilson v. Tatum, 8 Jones, (N. C.) 300; McKee v. Wilson, 87 N. C. 300; Harris v. Terry, 98 N. C. 131.

VI. Words imputing an indictable offence involving moral turpitude, or subjecting the offender to an infamous punishment. See Brooker v. Coffin, infra, and cases cited.

VII. Words imputing an indictable offence punishable corporally. Griffin v. Moore, 43 Md. 246; Shafer v. Ahalt, 48 Md. 171; Birch v. Benton, 26 Mo. 153; Curry v. Collins, 37 Mo. 324; Bundy v. Hart, 46 Mo. 460; Lewis v. McDaniel, 82 Mo. 577; Houston v. Woolley, 37 Mo. App. 15, 24; Parsons v. Henry, 177 Mo. App. 329.

As to defamation of a corporation, see Oram v. Hutt, [1913] 1 Ch. 259; Axton Tobacco Co. v. Evening Post Co., 169 Ky. 64; Stone v. Textile Employers Ass’n, 137 App. Div. 655.

[437]. Only the opinion of the court is given.

[438]. By 54 & 55 Vict. c. 51, words which impute unchastity or adultery to any woman or girl are actionable, without special damage.

[439]. This rule has been approved in the following cases: Pollard v. Lyon, 91 U. S. 225; Perdue v. Burnett, Minor, 138; Dudley v. Horn, 21 Ala. 379; Hillhouse v. Peck, 2 St. & P. 395; Heath v. Devaughn, 37 Ala. 677; Kinney v. Hosea, 3 Harring, 77; Pleasanton v. Kronemeier, 29 Del. 81; Pledger v. Hathcock, 1 Ga. 550; Giddens v. Mirk, 4 Ga. 364; Richardson v. Roberts, 23 Ga. 215; Burton v. Burton, 3 Greene, 316; Halley v. Gregg, 74 Ia. 563; Wooten v. Martin, 140 Ky. 781; St. Martin v. Desnoyer, 1 Minn. 156; West v. Hanrahan, 28 Minn. 385; Chaplin v. Lee, 18 Neb. 440; Hendrickson v. Sullivan, 28 Neb. 329; McCuen v. Ludlum, 2 Harr. 12; Johnson v. Shields, 25 N. J. Law, 116; Widrig v. Oyer, 13 Johns. 124; Martin v. Stilwell, 13 Johns. 275; Alexander v. Alexander, 9 Wend. 141; Case v. Buckley, 15 Wend. 327; Bissell v. Cornell, 24 Wend. 354; Demarest v. Haring, 6 Cow. 76; Young v. Miller, 3 Hill, 21; Wright v. Paige, 3 Keyes, 581, 3 Trans. App. 134, S. C.; Crawford v. Wilson, 4 Barb. 504; Johnson v. Brown, 57 Barb. 118; Quinn v. O’Gara, 2 E. D. Sm. 388; Torres v. Huner, 150 App. Div. 798; Dial v. Holter, 6 Ohio St. 228; Alfele v. Wright, 17 Ohio St. 238; Hollingsworth v. Shaw, 19 Ohio St. 430; Davis v. Brown, 27 Ohio St. 326; Davis v. Sladden, 17 Or. 259; Andres v. Koppenheafer, 3 S. & R. 255; Davis v. Carey, 141 Pa. St. 314; Lodge v. O’Toole, 20 R. I. 405; Gage v. Shelton, 3 Rich. 242; Smith v. Brown, 97 S. C. 239; Smith v. Smith, 2 Sneed, 473; McAnally v. Williams, 3 Sneed, 26; Poe v. Grever, 3 Sneed, 664; Payne v. Tancil, 98 Va. 262. See Moore v. Francis, 121 N. Y. 199.

[440]. Hence it is not actionable (without special damage) to call a man a “bastard,” Paysse v. Paysse, 86 Wash. 349, or a “blackleg and swindler,” McIntyre v. Fruchter, 148 N. Y. Supp. 786; or a “rascal,” Massee v. Williams, 207 Mass. 222, or to call a woman a “bitch.” Craver v. Norton, 114 Ia. 46; Sturdivant v. Duke, 155 Ky. 100; Kerone v. Block, 144 Mo. App. 575; Blake v. Smith, 19 R. I. 476.

But in Fowler v. Dowdney, 2 Moody & R. 119, the words “he is a returned convict” were held actionable, Lord Denman, C. J., saving that though the punishment had been suffered, “still the obloquy remains.” Gainford v. Tuke, Cro. Jac. 536; Boston v. Tatam, Cro. Jac. 623; Beavor v. Hides, 2 Wils. 300; Stewart v. Howe, 17 Ill. 71; Wiley v. Campbell, 5 T. B. Monr. 396; Krebs v. Oliver, 12 Gray, 239; Johnson v. Dicken, 25 Mo. 580; Van Ankin v. Westfall, 14 Johns. 233; Ship v. McCraw, 3 Murphy, 463; Smith v. Stewart, 5 Pa. St. 372; Beck v. Stitzel, 21 Pa. St. 522; Poe v. Grever, 3 Sneed, (Tenn.) 664 Accord.

Compare Carpenter v. Tarrant, C. t. Hardw. 339; French v. Creath, Breese, 12; Barclay v. Thompson, 2 Pen. & W. 148.

[441]. Only portions of the opinion are given.

[442]. See also Keck v. Shepard, (Ark.) 180 S. W. 501 (statutory); Craver v. Norton, 114 Ia. 46; Hahn v. Lumpa, 158 Ia. 560; Traylor v. White, 185 Mo. App. 325 (statutory); Culver v. Marx, 157 Wis. 320. On the whole subject, see Veeder, History and Theory of the Law of Defamation, 4 Columbia Law Rev. 33, 52.

[443]. Only the opinion of the court is given.

[444]. “We think that the rule as to words spoken of a man in his office or trade is not necessarily confined to offices and trades of the nature and duties of which the court can take judicial notice. The only limitation of which we are aware is, that it does not apply to illegal callings.” Channel, B., in Foulger v. Newcomb, L. R. 2 Ex. 327, 330.

[445]. Alexander v. Angle, 1 Cr. & J. 143; Sibley v. Tomlins, 4 Tyrwh. 90; Doyley v. Roberts, 3 B. N. C. 835; Brayne v. Cooper, 5 M. & W. 249; James v. Brook, 9 Q. B. 7; Dauncey v. Holloway, [1901] 2 K. B. 441; Hogg v. Dorrah, 2 Porter, (Ala.) 212; Oram v. Franklin, 5 Blackf. 42; Buck v. Hersey, 31 Me. 558; Oakley v. Farrington, 1 Johns. Cas. 129; Van Tassel v. Capron, 1 Den. 250; Ireland v. McGarvish, 1 Sandf. 155; Chomley v. Watson, [1907] Vict. L. R. 502 Accord.

Compare Ware v. Clowney, 24 Ala. 707; Butler v. Howes, 7 Cal. 87; Fowles v. Bowen, 30 N. Y. 20.

“Some of the cases have proceeded to a length which can hardly fail to excite surprise: a clergyman having failed to obtain redress for the imputation of adultery; and a school-mistress having been declared incompetent to maintain an action for a charge of prostitution. Such words were undeniably calculated to injure the success of the plaintiffs in their several professions, but, not being applicable to their conduct therein, no action lay.” Lord Denman, C. J., in Ayre v. Craven, 2 A. & E. 2. See Morasse v. Brooks, 151 Mass. 567, 568.

Imputation of misconduct to a clergyman, see Bishop of Norwich v. Pricket, Cro. Eliz. 1 (heterodoxy in religion); Payne v. Bewmorris, 1 Lev. 248 (incontinence); Pope v. Ramsey, 1 Keb. 542 (knave, &c.); Chaddock v. Briggs, 13 Mass. 248 (drunkenness); Ritchie v. Widdemer, 59 N. J. Law, 290; Demarest v. Haring, 6 Cow. 76 (incontinence); Potter v. N. Y. Journal, 68 App. Div. 95; Hayner v. Cowden, 27 Ohio St. 292 (drunkenness); McMillan v. Birch, 1 Binney, 178 (drunkenness); Starr v. Gardner, 6 Up. Can. Q. B. O. S. 512 (incontinence; but see, contra, Breeze v. Sails, 23 Up. Can. Q. B. 94, incontinence), holding the words actionable.

Parrat v. Carpenter, Cro. El. 502; Nicholson v. Lyne, Cro. El. 94; Anon., Sty. 49 Contra. Compare Gallwey v. Marshall, 9 Ex. 294, 568.

Imputation to teacher of discreditable conduct with pupils. Spears v. McCoy, 155 Ky. 1. Compare Nicholson v. Dillard, 137 Ga. 225.

Imputation to an officer of drunkenness while on duty. Reilly v. Curtis, 83 N. J. Law, 77.

[446]. Kempe’s Case, Dy. 72, pl. 6; Stanton v. Smith, 2 Ld. Ray. 1480; Brown v. Smith, 13 C. B. 596; Pacific Packing Co. v. Bradstreet, 25 Idaho, 696; Simons v. Burnham, 102 Mich. 189; Traynor v. Sielaff, 62 Minn. 420; Hynds v. Fourteenth Street Store, 159 App. Div. 766; Davis v. Ruff, Cheeves, 17 Accord.

Barnes v. Trundy, 31 Me. 321; Redway v. Gray, 31 Vt. 292 Contra.

See Bell v. Thatcher, Freem. 276; Bryant v. Loxton, 11 Moore, 344; Marino v. Di Marco, 41 App. D. C. 76 (“sells rotten goods”); Taylor v. Church, 1 E. D. Smith, 287; Fowles v. Bowen, 30 N. Y. 20; Bilgrien v. Ulrich, 150 Wis. 532 (habitual cheating).

[447]. Sumner v. Utley, 7 Conn. 257; Garr v. Selden, 6 Barb. 416; Rodgers v. Kline, 56 Miss. 808; Lynde v. Johnson, 39 Hun. 5 Accord.

[448]. Johnson v. Robertson, 8 Port. (Ala.) 486; Sumner v. Utley, 7 Conn. 257; Lovejoy v. Whitcomb, 174 Mass. 586; Freisinger v. Moore, 65 N. J. Law, 286; Mattice v. Wilcox, 147 N. Y. 624; Krug v. Pitass, 162 N. Y. 154, 163 N. Y. 600; Lynde v. Johnson, 39 Hun, 12; Hollingsworth v. Spectator Co., 49 App. Div. 16; McIntyre v. Weinert, 195 Pa. St. 52; Holland v. Flick, 212 Pa. St. 201; Gauvreau v. Superior Co., 62 Wis. 403 Accord. See Watson v. Vanderlash, Hetl. 69; Edsall v. Russell, 4 M. & Gr. 1090. Compare Twiggar v. Ossining Printing Co., 161 App. Div. 718; Larsen v. Brooklyn Eagle, 165 App. Div. 4.

Foot v. Brown, 8 Johns. 64 Contra. See Camp v. Martin, 23 Conn. 86; Pratt v. Pioneer Co., 35 Minn. 251.

The imputation of misconduct in an office of honor but not of profit is actionable per se, Booth v. Arnold, [1895] 1 Q. B. 571; Livingston v. McCartin, [1907] Vict. L. R. 48. But the rule is otherwise, according to Alexander v. Jenkins, [1892] 1 Q. B. 797, as to the imputation of unfitness for such an office.

[449]. Brook v. Wife, Cro. El. 878; Davis v. Taylor, Cro. El. 648; Garford v. Clerk, Cro. El. 857; Miller’s Case, Cro. Jac. 430; Crittal v. Horner, Hob. 219 b; Elyott v. Blague, Sty. 283; Marshall v. Chickall, 1 Sid. 50; Comming’s Case, 2 Sid. 5; Lymbe v. Hockly, 1 Lev. 205; Grimes v. Lovel, 12 Mod. 242; Clifton v. Wells, 12 Mod. 634; Whitfield v. Powel, 12 Mod. 248; Bloodworth v. Gray, 7 M. & G. 334; Watson v. McCarthy, 2 Ga. 57; Nichols v. Guy, 2 Ind. 82; McDonald v. Nugent, 122 Ia. 651; Meteye v. Times Co., 47 La. Ann. 824; Golderman v. Stearns, 7 Gray, 181; Williams v. Holdredge, 22 Barb. 396; Hewitt v. Mason, 24 How. Pr. 366; Upton v. Upton, 51 Hun, 184; Simpson v. Press Co., 33 Misc. 228; Kaucher v. Blinn, 29 Ohio St. 62; Irons v. Field, 9 R. I. 216 Accord.

Bury v. Chappel, Golds. 135; James v. Rutlech, 4 Rep. 17 a; Hunt v. Jones, Cro. Jac. 499; Califord v. Knight, Cro. Jac. 514 Contra.

In Taylor v. Hall, 2 Strange, 1189, it was held not actionable to say that plaintiff had had the pox. Smith’s Case, Noy, 151; Dutton v. Eaton, Al. 30; Carslake v. Mapledoram, 2 T. R. 473; Nichols v. Guy, 2 Ind. 82; Pike v. Van Wormer, 5 How. Pr. 171; Irons v. Field, 9 R. I. 216 Accord. Austin v. White, Cro. El. 214; Anon. Ow. 34; Hobson v. Hudson, Sty. 199, 219 Contra.

[450]. Only the opinion of the court is given.

[451]. But see Fitzgerald v. Young, 89 Neb. 693 (imputation of insanity to a teacher).

[452]. Only the opinion of the court upon this point is given.

[453]. Lucas v. Cotton, Moore, 79; Underwood v. Parks, 2 Stra. 1200; Ellis v. Buzzell, 60 Me. 209; Baum v. Clause, 5 Hill, 196 Accord.

The rule is the same as to actions for a libel. Leyman v. Latimer, 3 Ex. D. 15, 352; Grand Union Tea Co. v. Lorch, (C. C. A.) 231 Fed. 390; Schuler v. Fischer, 167 Ala. 184; Children v. Shinn, 168 Ia. 531; Castle v. Hunston, 19 Kan. 417; Hanson v. Bristow, 87 Kan. 72; Herald Pub. Co. v. Feltner, 158 Ky. 35; Cook v. Pulitzer Pub. Co., 241 Mo. 326; Merrey v. Guardian Pub. Co., 79 N. J. Law, 177; Willetts v. Scudder, 72 Or. 535. Unless modified by statute, as in Delaware, Florida, Illinois, Maine, Massachusetts, Nebraska, New York, Rhode Island and West Virginia. Delaware Co. v. Croasdale, 6 Houst. 181; Jones v. Townsend, 21 Fla. 431; Palmer v. Adams, 137 Ind. 72; Perry v. Porter, 124 Mass. 338; Fordyce v. Richmond, 78 Neb. 752; McClaugherty v. Cooper, 39 W. Va. 313. In New Hampshire and Pennsylvania, however, the mere truth of the libel is not always a defence, although there is no such statute. Hutchins v. Page, 75 N. H. 215; Burkhart v. N. Am. Co., 214 Pa. St. 39.

[454]. The statement of the pleadings is abridged; the arguments of counsel and the concurring opinions of Martin, Channell, and Bramwell, BB., are omitted.

[455]. Rex v. Skinner, Lofft, 55; Thomas v. Churton, 2 B. & S. 475; Dawkins v. Paulet, L. R. 5 Q. B. 94; Dawkins v. Prince Edward, 1 Q. B. D. 499; Law v. Llewellyn, [1906] 1 K. B. 487 (judge of inferior court—Scotch case Allardice v. Robertson, 1 Dow & Cl. 495 not followed); Bottomley v. Brougham, [1908] 1 K. B. 584 (official receiver); Miller v. Hope, 2 Shaw, App. Cas. 125; Yates v. Lansing, 5 Johns. 282, 9 Johns. 395 (but see Aylesworth v. St. John, 25 Hun, 156); Allen v. Earnest, (Tex. Civ. App.) 145 S. W. 1101 Accord.

Kendillon v. Maltby, Car. & M. 402, 2 M. & Rob. 438, S. C., lays down too restricted a rule.

“The publication of defamatory words may be under an absolute or under a qualified or conditional privilege. Under the former there is no liability, although the defamatory words are falsely and maliciously published. The class of absolutely privileged communications is narrow and practically limited to legislative and judicial proceedings and acts of state.” Hall, C. J., in Hassett v. Carroll, 85 Conn. 23, 35.

See Tanner v. Stevenson, 138 Ky. 578; Peterson v. Steenerson, 113 Minn. 87.

[456]. Only the opinion of Brett, M. R., is given.

[457]. Pedley v. Morris, 61 L. J. Q. B. 21 Accord.

See Buckley v. Wood, 4 Rep. 14 b; Hodgson v. Scarlett, 1 B. & Ald. 232; Mackay v. Ford, 5 H. & N. 792; Smallwood v. York, 163 Ky. 139; Rudin v. Fauver, 33 Ohio Cir. Ct. R. 315; Kruegel v. Cockrell (Tex. Ci v. App.) 151 S. W. 352.

“We cannot accept the absolute and unqualified privilege laid down in Munster v. Lamb.... We cannot agree with Brett, M. R., that in a suit against counsel for slander the only inquiry is whether the words were spoken in a judicial proceeding, and if so, the case must be stopped. We quite agree however, with Bramwell, J. A., in Seaman v. Netherclift, that ‘relevant’ and ‘pertinent’ are not the best words that could be used. These words have in a measure a technical meaning, and we all know the difficulty in determining in some cases what is relevant or pertinent. With Lord Chancellor Cairns we prefer the words ‘having reference’ or ‘made with reference,’ or in the language of Shaw, C. J., ‘having relation to the cause or subject-matter.’ And if counsel in the trial of a cause maliciously slanders a party, or witness or any other person in regard to a matter that has no reference or relation to, or connection with, the case before the Court, he is and ought to be answerable in an action by the party injured. This qualification of his privilege in no manner impairs the freedom of discussion so necessary to the proper administration of the law, nor does it subject counsel to actions for slander except in cases in which upon reason and sound public policy he ought to be held answerable. We cannot agree that for the abuse of his privilege he is amenable only to the authority of the Court. Mere punishment by the Court is no recompense to one who has thus been maliciously and wantonly slandered.” Robinson, J., in Maulsby v. Reifsnider, 69 Md. 143, 162. La Porta v. Leonard, 88 N. J. Law, 663; Andrews v. Gardiner, 165 App. Div. 595 Accord.

Defamatory statements in brief of counsel. Brooks v. Bank of Acadia, 138 La. 657.

Pleadings. Nalle v. Oyster, 230 U. S. 165; Carpenter v. Grimes Min. Co., 19 Idaho, 384; Hess v. McKee, 150 Ia. 409; Lebovitch v. Levy, 128 La. 518; Flynn v. Boglarsky, 164 Mich. 513; Rosenberg v. Dworetsky, 139 App. Div. 517; Harris v. Santa Fé Townsite Co., (Tex. Civ. App.) 125 S. W. 77.

In England, statements in a pleading are absolutely privileged, though not relevant. Hodson v. Pare, [1899] 1 Q. B. 455.

In the United States, statements in a pleading not pertinent to the action are not privileged. Union Ins. Co. v. Thomas, 83 Fed. 803; King v. McKissick, 126 Fed. 215; Potter v. Troy, 175 Fed. 128; Myers v. Hodges, 53 Fla. 197; Gaines v. Aetna Ins. Co., 104 Ky. 695; Jones v. Brownlee, 161 Mo. 258; Gilbert v. People, 1 Denio, 41; Kemper v. Fort, 219 Pa. St. 85; Crockett v. McLanahan, 109 Tenn. 517; Miller v. Gust, 71 Wash. 139.

Charges in disbarment proceedings, see Preusser v. Faulhaber, 33 Ohio Cir. Ct. R. 312.

Statements in a petition for pardon. Connollee v. Blanton, (Tex. Ci v. App.) 163 S. W. 404 (held absolutely privileged).

Statement by defendant on trial for crime. Nelson v. Davis, 9 Ga. App. 131.

In Louisiana the statements of parties in judicial proceedings are not absolutely privileged. Lescale v. Joseph Schwartz Co., 116 La. 293, 118 La. 718; Dunn v. Southern Co., 116 La. 431.

[458]. The arguments and the opinion of Amphlett, J. A., are omitted.

[459]. Revis v. Smith, 18 C. B. 126; Henderson v. Broomhead, 4 H. & N. 569; Dawkins v. Rokeby, L. R. 7 H. L. 744, L. R. 8 Q. B. 255 (military court of inquiry); Goffin v. Donnelly, 6 Q. B. D. 307 (select committee of House of Commons); Gompas v. White, 6 T. L. R. 20; Watson v. Jones, [1905] A. C. 480 (privilege extends to statement to client and solicitor in preparation of case for trial); Terry v. Fellows, 21 La. Ann. 375; Hunckle v. Voneiff, 69 Md. 173; Dodge v. Gilman, 122 Minn. 177; Runge v. Franklin, 72 Tex. 585; Kennedy v. Hilliard, 10 Ir. C. L. R. 195 Accord. But the English courts do not extend the doctrine to hearings before an administrative board. Atwood v. Chapman, 111 L. T. 726.

See also Hutchinson v. Lewis, 75 Ind. 55; Liles v. Gaster, 42 Ohio St. 631.

In Dawkins v. Lord Rokeby, supra, Lord Penzance said: “It is said that a statement of fact of a libellous nature which is palpably untrue—known to be untrue by him who made it, and dictated by malice—ought to be the subject of a civil remedy, though made in the course of a purely military inquiry. This mode of stating the question assumes the untruth and assumes the malice. If by any process of demonstration, free from the defects of human judgment, the untruth and malice could be set above and beyond all question or doubt, there might be ground for contending that the law of the land should give damages to the injured man.

“But this is not the state of things under which this question of law has to be determined. Whether the statements were, in fact, untrue, and whether they were dictated by malice, are, and always will be, open questions, upon which opinions may differ, and which can only be resolved by the exercise of human judgment. And the real question is, whether it is proper on grounds of public policy to remit such questions to the judgment of a jury. The reasons against doing so are simple and obvious. A witness may be utterly free from malice, and may yet in the eyes of a jury be open to that imputation; or, again, the witness may be cleared by the jury of the imputation, and may yet have to encounter the expenses and distress of a harassing litigation. With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands.

“These considerations have long since led to the legal doctrine that a witness in the courts of law is free from any action; and I fail to perceive any reason why the same considerations should not be applied to an inquiry such as the present, and with the same result.”

[460]. The statement, arguments of counsel and parts of the opinion are omitted.

[461]. “White v. Carroll, rightly understood, is in harmony with the other cases. The case shows that the court held that the answer given to the question put to the defendant as a witness before the surrogate was not material and pertinent to the inquiry; and further held it was privileged if the defendant, when he gave it, in good faith believed that it was; and whether he so believed, was a question of fact to be determined by the jury. Had the evidence proved that the answer was material and pertinent, the court must have held it privileged, irrespective of the defendant’s belief upon the subject.” Grover, J., in Marsh v. Ellsworth, 50 N. Y. 309, 313.

“It seems to be settled by the English authorities that judges, counsel, parties, and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings; and that the same doctrine is generally held in the American courts, with the qualification, as to parties, counsel, and witnesses, that their statements made in the course of an action must be pertinent and material to the case.” Lord, J., in McLaughlin v. Cowley, 127 Mass. 316, 319.

“The examination of witnesses is regulated by the tribunal before which they testify, and if witnesses answer pertinently questions asked them by counsel which are not excluded by the tribunal, or answer pertinently questions asked them by the tribunal, they ought to be absolutely protected. It is not the duty of a witness to decide for himself whether the questions asked him under the direction of the tribunal are relevant. As the witness is sworn to tell the whole truth relating to the matter concerning which his testimony is taken, he ought also to be absolutely protected in testifying to any matter which is relevant to the inquiry, or which he reasonably believes to be relevant to it. But a witness ought not to be permitted with impunity to volunteer defamatory statements which are irrelevant to the matter of inquiry, and which he does not believe to be relevant. This statement of the law we think, is supported by the decisions in this Commonwealth. The English decisions, perhaps, go somewhat further than this in favor of a witness; certainly they apply the rule liberally for his protection.” Field, J., in Wright v. Lothrop, 149 Mass. 385, 389.

The principal case and the preceding extracts in this note represent the views of the American courts in general.

King v. McKissick, 126 Fed. 215; Lawson v. Hicks, 38 Ala. 279; Wyatt v. Buell, 47 Cal. 624; Hollis v. Meux, 69 Cal. 625; People v. Green, 9 Col. 506; Lester v. Thurmond, 51 Ga. 118; Buschbaum v. Heriot, 5 Ga. App. 521; Spaids v. Barrett, 57 Ill. 289; Fagan v. Fries, 30 Ill. App. 236; Smith v. Howard, 28 Ia. 51; Hawk v. Evans, 76 Ia. 593; Forbes v. Johnson, 11 B. Mon. 48; Morgan v. Booth, 13 Bush, 480; Stewart v. Hall, 83 Ky. 375; Sebree v. Thompson, 126 Ky. 223; Kelly v. Lafitte, 28 La. Ann. 435; Gardemal v. McWilliams, 43 La. Ann. 454; Barnes v. McCrate, 32 Me. 442; Hoar v. Wood, 3 Met. 193; Kidder v. Parkhurst, 3 All. 393; McLaughlin v. Cowley, 127 Mass. 316; Wright v. Lothrop, 149 Mass. 385; Wheaton v. Beecher, 49 Mich. 348; Acre v. Starkweather, 118 Mich. 214; Hastings v. Lusk, 22 Wend. 410; Ring v. Wheeler, 7 Cow. 725; Garr v. Selden, 4 N. Y. 91; Marsh v. Ellsworth, 50 N. Y. 309; Moore v. Manufacturers’ Bank, 123 N. Y. 420, 136 N. Y. 666; Newfield v. Copperman, 15 Abb. Pr. N. S. 360; Perkins v. Mitchell, 31 Barb. 461; Dada v. Piper, 41 Hun, 254; McLaughlin v. Charles, 60 Hun, 239; Beggs v. McCrea, 62 App. Div. 39 (semble); Suydam v. Moffat, 1 Sandf. 459; Perzel v. Tousey, 52 N. Y. Super. Ct. 79; Cooper v. Phipps, 24 Or. 357; Shadden v. McElwee, 86 Tenn. 146; Mower v. Watson, 11 Vt. 536; Dunham v. Powers, 42 Vt. 1; Johnson v. Brown, 13 W. Va. 71; Jennings v. Paine, 4 Wis. 358; Calkins v. Sumner, 13 Wis. 193; Larkin v. Noonan, 19 Wis. 82.

Statements volunteered by witness. Viss v. Calligan, 91 Wash. 673.

Statements in affidavit. Perry v. Perry, 153 N. C. 266; Baggett v. Grady, 154 N. C. 342; Keeley v. Great Northern R. Co., 156 Wis. 181. But see Ritschy v. Garrels, 195 Mo. App. 670.

Affidavit in legislative investigation. Tuohy v. Hassell, 35 Okl. 61.

Defamatory statements at creditors’ meeting. Smith v. Agee, 178 Ala. 627.

Statements in notice of foreclosure sale. Tierney v. Ruppert, 150 App. Div. 863.

Report of grand jury without indictment. Rich v. Eason, (Tex. Civ. App.) 180 S. W. 303.

Statement of guardian as to person making claim against ward’s estate. Marney v. Joseph, 94 Kan. 18.

Letter from one attorney to another, not confined to the matters in litigation. Savage v. Stover, 86 N. J. Law, 478.

Message of a mayor. A communication from the mayor of a city to the common council is absolutely privileged. Trebilcock v. Anderson, 117 Mich. 39.

Official statements of officers of state are absolutely privileged. Chatterton v. Secretary of State, [1895] 2 Q. B. 189; Spalding v. Vilas, 161 U. S. 483.

Statements of administrative officers. Farr v. Valentine, 38 App. D. C. 413; Haskell v. Perkins, 165 Ill. App. 144; Tanner v. Stevenson, 138 Ky. 578; Peterson v. Steenerson, 113 Minn. 87; Johnson v. Marsh, 82 N. J. Law, 4 (notice not to sell liquor to alleged drunkard); Bingham v. Gaynor, 203 N. Y. 27.

[462]. It is well settled that no action is allowed against a witness for damage caused by his perjury. Damport v. Sympson, Cro. El. 520, Ow. 158, 2 And. 47, s. c.; Eyres v. Sedgewicke, Cro. Jac. 601; Yelv. 142, 2 Roll. R. 197, S. C.; Wimberly v. Thompson, Noy, 6; Harding v. Bodman, Hutt. 11; Coxe v. Smithe, 1 Lev. 119; Taylor v. Bidwell, 65 Cal. 489; Bostwick v. Lewis, 2 Day, 447; Grove v. Brandenburg, 7 Blackf. 239; Dunlap v. Glidden, 31 Me. 435; Severance v. Judkins, 73 Me. 376, 379; Garing v. Fraser, 76 Me. 37; Phelps v. Stearns, 4 Gray, 105; Curtis v. Fairbanks, 16 N. H. 542; Smith v. Lewis, 3 Johns. 157; Cunningham v. Brown, 18 Vt. 123.

See Bell v. Senneff, 83 Ill. 122. Compare Schaub v. O’Ferrell, 116 Md. 131.

[463]. See also Taylor v. Bidwell, 65 Cal. 489; Curtis v. Fairbanks, 16 N. H. 542; Stevens v. Rowe, 59 N. H. 578.

[464]. A part of the opinion relating to points of pleading is omitted.

[465]. The arguments and the concurring opinions of Martin and Channell, BB., are omitted.

[466]. Risk Allah Bey v. Whitehurst, 18 L. T. Rep. 615; Hope v. Leng, 23 T. L. R. 243; Furniss v. Cambridge News, 23 T. L. R. 705; Todd v. Every Evening Co., (Del.) 62 Atl. 1089 (semble); Blodgett v. Des Moines Co., (Ia.) 113 N. W. 821; Billet v. Publishing Co., 107 La. 751 (semble); McBee v. Fulton, 47 Md. 403; Cowley v. Pulsifer, 137 Mass. 392; Conner v. Standard Co., 183 Mass. 474; Nixon v. Dispatch Co., 101 Minn. 309; Hawkins v. Globe Co., 10 Mo. App. 174; Boogher v. Knapp, 97 Mo. 122; Brown v. Knapp, 213 Mo. 655 (semble); Brown v. Globe Co., 213 Mo. 611; Thompson v. Powning, 15 Nev. 195; Edsall v. Brooks, 17 Abb. Pr. 221; N. Y. Code Civ. Proc., § 1907; Ackerman v. Jones, 37 N. Y. Super. Ct. 42; Salisbury v. Union Co., 45 Hun, 120; Hart v. Sun Co., 79 Hun, 358; Cincinnati Co. v. Timberlake, 10 Ohio St. 548; Metcalf v. Times Co., 20 R. I. 674; Saunders v. Baxter, 6 Heisk. 369; American Co. v. Gamble, 115 Tenn. 663; People v. Glassman, 12 Utah, 238 Accord.

So publication of copies from the register of judgments is privileged. Searles v. Scarlett, [1892] 2 Q. B. 56.

Publication of papers filed in the clerk’s office, but not produced in open court, is not privileged. Meeker v. Post Pub. Co., 45 Col. 355; Cowley v. Pulsifer, 137 Mass. 392; Lundin v. Post Pub. Co., 217 Mass. 213; Park v. Detroit Co., 72 Mich. 560; Barber v. St. Louis Co., 3 Mo. App. 377; Stuart v. Press Co., 83 App. Div. 467; Byers v. Meridian Printing Co., 84 Ohio St. 408; American Co. v. Gamble, 115 Tenn. 663; Houston Pub. Co. v. McDavid, (Tex. Civ. App.) 173 S. W. 467; Ilsley v. Sentinel Co., 133 Wis. 20.

Report of criminal proceeding before magistrate with no jurisdiction. Lee v. Brooklyn Pub. Co., 209 N. Y. 245.

Report of investigation before grand jury. Poston v. Washington R. Co., 36 App. D. C. 359; Sweet v. Post Publishing Co., 215 Mass. 450.

Report in advance of judicial proceeding as to evidence to be adduced. Houston Pub. Co. v. Tiernan, (Tex. Civ. App.) 171 S. W. 542. See Kelly v. Independent Pub. Co., 45 Mont. 127.

Humorous report. Bresslin v. Star Co., 85 Misc. 609.

Matter added to the report. Smith v. New Yorker Staats Zeitung, 154 App. Div. 458.

[467]. Only the opinion of Lord Coleridge, and that, too, slightly abridged, is given. Lopes, J., concurred.

[468]. Curry v. Walter, 1 Esp. 456, 1 B. & P. 525; Lewis v. Levy, E. B. & E. 537; Kimber v. Press Association, [1893] 1 Q. B. 65; McBee v. Fulton, 47 Md. 403; Salisbury v. Union Co., 45 Hun, 120 (semble); Metcalf v. Times Co., 20 R. I. 674 (semble); Brown v. Providence Co., 25 R. I. 117 (semble) Accord.

See Duncan v. Thwaites, 3 B. & C. 556; Parsons v. Age Herald Pub. Co., 181 Ala. 439; Todd v. Every Evening Co., (Del.) 62 Atl. 1089; Flues v. New Nonpareil Co., 155 Ia. 290; Cowley v. Pulsifer, 137 Mass. 392; Jones v. Pulitzer Pub. Co., 240 Mo. 200; Stanley v. Webb, 4 Sandf. 21; Matthews v. Beach, 5 Sandf. 256; Cincinnati Co. v. Timberlake, 10 Ohio St. 548; Mengel v. Reading Eagle Co., 241 Pa. St. 367.

The report of ex parte proceedings may be published before their termination, if of such a character that there will be a final decision. Kimber v. Press Association, [1893] 1 Q. B. 65.

[469]. Only the opinion of the court is given.

[470]. In 1843, see Hansard’s Parliamentary Debates, 3d series, vol. lxx. pp. 1254–8; and in 1858, see vol. cxlix. pp. 947–82.—Reporter’s Note.

[471]. See Hansard’s Parliamentary Debates, 3d series, vol. lxx. p. 1254; and vol. cxlix. p. 947.—Reporter’s Note.

[472]. Garby v. Bennett, 57 N. Y. Sup. Ct. 853; Buckstaff v. Hicks, 94 Wis. 34 (semble—report of proceedings of common council of a city not privileged); Dillon v. Balfour, L. R. 20 Ir. 600 Accord.

The publication must purport to be a report. Lewis v. Hayes, 165 Cal. 527.

[473]. The concurring opinions of Cockburn, C. J., and Baggallay and Bramwell, JJ. A., and the arguments of counsel are omitted.

[474]. See Charlton v. Watton, 6 Car. & P. 385; Davison v. Duncan, 7. E. & B. 229, 233; Popham v. Pickburn, 7 H. & N. 891; Davis v. Duncan, L. R. 9 C. P. 396; Allbutt v. General Council, 23 Q. B. D. 400, 411.

By St. 51 & 52 Vict. c. 64, §§ 3 and 4, “§ 3. A fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority shall, if published contemporaneously with such proceedings, be privileged: Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter.

Ҥ 4. A fair and accurate report published in any newspaper of the proceedings of a public meeting, or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, board of guardians, board or local authority formed or constituted under the provisions of any Act of Parliament, or of any committee appointed by any of the above-mentioned bodies, or of any meeting of any commissioners authorized to act by letters patent, Act of Parliament, warrant under the Royal Sign Manual, or other lawful warrant or authority, select committees of either House of Parliament, justices of the peace in quarter sessions assembled for administrative or deliberative purposes, and the publication at the request of any Government office or department, officer of state, commissioner of police, or chief constable of any notice or report issued by them for the information of the public, shall be privileged, unless it shall be proved that such report or publication was published or made maliciously: Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter: Provided also, that the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it shall be proved that the defendant has been requested to insert in the newspaper in which the report or other publication complained of appeared a reasonable letter or statement by way of contradiction or explanation of such report or other publication, and has refused or neglected to insert the same: Provided further, that nothing in this section contained shall be deemed or construed to limit or abridge any privilege now by law existing, or to protect the publication of any matter not of public concern and the publication of which is not for the public benefit.

“For the purposes of this section ‘public meeting’ shall mean any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted.” Kelly v. O’Malley, 6 T. L. R. 62, was decided under this statute.

Newspaper publication of reports of administrative officers. Tilles v. Pulitzer Pub. Co., 241 Mo. 609; Schwarz v. Evening News Co., 84 N. J. Law 486; Bingham v. Gaynor, 203 N. Y. 27. Contra, Madill v. Currie, 168 Mich. 546. See Morasca v. Item Co., 126 La. 426.

Report of investigation by administrative officers. Williams v. Black, 24 S. D. 501.

[475]. The case has been much abridged.

[476]. Allbutt v. General Council, 23 Q. B. D. 400 Accord. But see Kimball v. Post Pub. Co., 199 Mass. 248; Peoples Bank v. Goodwin, 148 Mo. App. 364.

Report of proceedings of a church commission. Bass v. Mathews, 69 Wash. 214.

[477]. Only the opinion of Mellish, L. J., is given.

[478]. Macdougall v. Knight, 14 App. Cas. 194 (explaining S. C. 17 Q. B. Div. 636); Salisbury v. Union Co., 45 Hun, 120 Accord.

See Annaly v. Trade Co., L. R. 26 Ir. 394.

[479]. Parsons v. Age Herald Pub. Co., 181 Ala. 439; Washington Herald Co. v. Berry, 41 App. D. C. 322; Lundin v. Post Pub. Co., 217 Mass. 213; Schwarz v. Evening News Co., 84 N. J. Law, 486; Williams v. Black, 24 S. D. 501; Williams Printing Co. v. Saunders, 113 Va. 156 Accord.

But see U. S. v. Journal Co., 197 Fed. 415; Tilles v. Pulitzer Pub. Co., 241 Mo. 609.

“Their Lordships regret to find that there appeared on the one side of this case the time-worn fallacy that some kind of privilege attaches to the profession of the Press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go so also may the journalist, but, apart from statute law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments is as wide as, and no wider than, that of any other subject. No privilege attaches to his position.” Lord Shaw in Arnold v. King-Emperor, 111 L. T. 324, 325.

[480]. The statement has been condensed, the facts sufficiently appearing in the opinion of Mellor, J. The arguments of counsel and the concurring opinion of Hannen, J., are omitted.

[481]. Barbaud v. Hookham, 5 Esp. 109; McDougall v. Claridge, 1 Camp. 267; Dunman v. Bigg, 1 Camp, 269 n.; Todd v. Hawkins, 2 M. & R. 20, 8 Car. & P. 88; Shipley v. Todhunter, 7 Car. & P. 680; Harris v. Thompson, 13 C. B. 333; Maitland v. Bramwell, 2 F. & F. 623; Scarll v. Dixon, 4 F. & F. 250; Cooke v. Wildes, 5 E. & B. 328; Croft v. Stevens, 7 H. & N. 570; Whiteley v. Adams, 15 C. B. N. S. 392; Spill v. Maule, L. R. 4 Ex. 232; Laughton v. Bishop, L. R. 4 P. C. 495; Davies v. Snead, L. R. 5 Q. B. 608; Waller v. Loch, 7 Q. B. D. 619; Cowles v. Potts, 34 L. J. Q. B. 247; Quartz Co. v. Beall, 20 Ch. Div. 501; Royal Aquarium v. Parkinson, [1892] 1 Q. B. 431; Pittard v. Oliver, [1891] 1 Q. B. 474; Phila. Co. v. Quigley, 21 How. 202; Broughton v. McGrew, 39 Fed. 672; Haight v. Cornell, 15 Conn. 74; Etchison v. Pergerson, 88 Ga. 620; Wharton v. Wright, 30 Ill. App. 343; Coombs v. Rose, 8 Blackf. 155; Kirkpatrick v. Eagle Lodge, 26 Kan. 384; Lynch v. Febiger, 39 La. Ann. 336; Remington v. Congdon, 2 Pick. 310; Bradley v. Heath, 12 Pick. 163; Farnsworth v. Storrs, 5 Cush. 412; York v. Pease, 2 Gray, 282; Gassett v. Gilbert, 6 Gray, 94; Shurtleff v. Parker, 130 Mass. 293 (semble); Howland v. Flood, 160 Mass. 509; Landis v. Campbell, 79 Mo. 433; Rothholz v. Dunkle, 53 N. J. Law, 438; Jarvis v. Hatheway, 3 Johns, 180; O’Donaghue v. McGovern, 23 Wend. 26; Streety v. Wood, 15 Barb. 105; Fowles v. Bowen, 30 N. Y. 20; Kilinck v. Colby, 46 N. Y. 427; McKnight v. Hasbrouck, 17 R. I. 70; Tillinghast v. McLeod, 17 R. I. 208; Holt v. Parsons, 23 Tex. 9; Shurtleff v. Stevens, 51 Vt. 501 (semble) Accord.

See also Dickeson v. Hilliard, L. R. 9 Ex. 79; Lyman v. Gowing, L. R. 6 Ir. 259 (where the communication was made to unsuitable persons); Phillips v. Bradshaw, 181 Ala. 541; Bohlinger v. Germania Ins. Co., 100 Ark. 477.

Communication by promoter of an enterprise to one whose assistance is sought. Cook v. Gust, 155 Wis. 594.

Communication from superintendent of railroad to express company as to employee who serves both. International R. Co. v. Edmundson, (Tex. Civ. App.) 185 S. W. 402.

Communication by insurance adjuster to insurers. Richardson v. Cooke, 129 La. 365.

Indorsement of officer on recommendation for promotion. Gray v. Mossman, 88 Conn. 247.

Communication between stockholders as to manager of a corporation. Ashcroft v. Hammond, 197 N. Y. 488.

Communication by person immediately interested made honestly to protect his own interest. Delany v. Jones, 4 Esp. 190 (but see Lay v. Lawson, 4 A. & E. 798); Fairman v. Ives, 5 B. & A. 642; Coward v. Wellington, 7 Car. & P. 531; Tuson v. Evans, 12 A. & E. 733 (semble); Blackham v. Pugh, 2 C. B. 611; Wenman v. Ash, 13 C. B. 836 (semble, communication to unsuitable person); Manby v. Witt, 18 C. B. 544; Taylor v. Hawkins, 16 Q. B. 308; Amann v. Damm, 8 C. B. N. S. 597; Force v. Warren, 15 C. B. N. S. 806; Oddy v. Paulet, 4 F. & F. 1009 (semble); Cooke v. Wildes, 5 E. & B. 328; Regina v. Perry, 15 Cox C. C. 169; Bank v. Strong, 1 App. Cas. 307; Hunt v. Great Northern Co., [1891] 2 Q. B. 189; Baker v. Carrick, [1894] 1 Q. B. 838; Hobbs v. Bryers, L. R. 2 Ir. 496; Lang v. Gilbert, 4 All. (N. B.) 445; Gasley v. Moss, 9 Ala. 266; Butterworth v. Conrow, 1 Marv. 361; Henry v. Moberly, 23 Ind. App. 305; Nichols v. Eaton, 110 Ia. 509; Caldwell v. Story, 107 Ky. 10; Baysett v. Hire, 49 La. Ann. 904; Dickinson v. Hathaway, 122 La. Ann. 644; Beeler v. Jackson, 64 Md. 589; Brow v. Hathaway, 13 All. 239; Bacon v. Mich. Co., 66 Mich. 166; Howard v. Dickie, 120 Mich. 238; Alabama Co. v. Brooks, 69 Miss. 168; Lovell Co. v. Houghton, 116 N. Y. 520; Lent v. Underhill, 54 App. Div. 609; Reynolds v. Plumbers’ Ass’n, 30 Misc. 709; Behee v. Missouri R. Co., 71 Tex. 424; Missouri R. Co. v. Richmond, 73 Tex. 568; Missouri Co. v. Behee, 2 Tex. Civ. App. 107; Miller v. Armstrong, 24 N. Zeal. 968.

[482]. The arguments of counsel are omitted.

[483]. Johnson v. Evans, 3 Esp. 32; Fowler v. Homer, 3 Camp. 294; Jones v. Thomas, 34 W. R. 104; Lightbody v. Gordon, 9 Scotch Sess. Cas. (4th series) 934; Dale v. Harris, 109 Mass. 193 Accord.

See to the same effect Flanagan v. McLane, 87 Conn. 220; Wall v. Seaboard Ry., 18 Ga. App. 457; Cristman v. Cristman, 36 Ill. App. 567; Harper v. Harper, 10 Bush, 447; Hyatt v. Lindner, 133 La. 614; Bavington v. Robinson, 127 Md. 46, 124 Md. 85; Eames v. Whittaker, 123 Mass. 342; Wells v. Toogood, 165 Mich. 677; Lally v. Emery, 59 Hun, 237; Hayden v. Hasbrouck, 34 R. I. 556; Viss v. Calligan, 91 Wash. 673. Compare Hansen v. Hansen, 126 Minn. 426; Hooper v. Truscott, 2 B. N. C. 457; Harrison v. Fraser, 29 W. R. 652.

But see Peak v. Taubman, 251 Mo. 390; Vanloon v. Vanloon, 159 Mo. App. 255; Hagener v. Pulitzer Pub. Co., 172 Mo. App. 436.

Relevant statement in course of dispute as to property. Alderson v. Kahle, 73 W. Va. 690.

[484]. The argument for the plaintiff and the opinions of Lord Tenterden, C. J., Bayley, and Littledale, JJ., are omitted.

[485]. Servant cases. Edmondson v. Stevenson, Bull. N. P. 8; Weatherston v. Hawkins, 1 T. R. 110; Rogers v. Clifton, 3 B. & P. 587; Pattison v. Jones, 8 B. & C. 578; Gardner v. Slade, 13 Q. B. 796; Murdoch v. Funduklian, 2 T. L. R. 614 (reversing S. C. 2 T. L. R. 215); Doane v. Grew, 220 Mass. 171; Carroll v. Owen, 178 Mich. 551 Accord.

Commercial agency cases. Lemay v. Chamberlain, 10 Ont. 638; Todd v. Dun, 12 Ont. 791; Erber v. Dun, 12 Fed. 526; Johnson v. Bradstreet Co., 77 Ga. 172; Pollasky v. Minchener, 81 Mich. 280; Mitchell v. Bradstreet Co., 116 Mo. 226; King v. Patterson, 49 N. J. Law, 417; Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188; Bradstreet Co. v. Gill, 72 Texas, 115 Accord.

Macintosh v. Dun, [1908] A. C. 390 Contra. Aliter in case of credit association not for profit. London Ass’n for Protection of Trade v. Greenlands, [1916] 2 A. C. 15.

But information given to persons having no interest in the mercantile standing of the plaintiff—for example, reports sent by a commercial agency to its subscribers generally—is not privileged. Erber v. Dun, 12 Fed. 526; Trussell v. Scarlett, 18 Fed. 214 (criticising Beardsley v. Tappan, 5 Blatchford, 497); Locke v. Bradstreet Co., 22 Fed. 771; Pacific Packing Co. v. Bradstreet, 25 Idaho, 696; Pollasky v. Minchener, 81 Mich. 280; Ormsby v. Douglass, 37 N. Y. 477; State v. Lonsdale, 48 Wis. 348.

For other cases of communications privileged because made in answer to proper inquiries, see Cockayne v. Hodgkisson, 5 Car. & P. 543; Storey v. Challands, 8 Car. & P. 234; Kline v. Sewell, 3 M. & W. 297; Hopwood v. Thorn, 8 C. B. 293; Robshaw v. Smith, 38 L. T. Rep. 423; Weldon v. Winslow, Odgers, Lib. & Sl. (5th ed.) 255; Melcher v. Beeler, 48 Col. 233; Zuckerman v. Sonnenschein, 62 Ill. 115; Richardson v. Gunby, 88 Kan. 47; Atwill v. Mackintosh, 120 Mass. 177; Howland v. Blake Co., 156 Mass. 543; Froslee v. Lund’s State Bank, 131 Minn. 435; Fahr v. Hayes, 50 N. J. Law, 275; Posnett v. Marble, 62 Vt. 481; Rude v. Nass, 79 Wis. 321.

Advice by attorney to client as to person with whom client has business. Kruse v. Rabe, 80 N. J. Law, 378.

Fiduciary relations. Communications made in the line of a business duty, for example, by an agent or employee to his principal or employer are privileged. Wright v. Woodgate, 2 C. M. & R. 573; Scarll v. Dixon, 4 F. & F. 250; Stace v. Griffith, L. R. 2 P. C. 420; Hume v. Marshall, 42 J. P. 136; Washburn v. Cooke, 3 Den. 110; Lewis v. Chapman, 16 N. Y. 369.

Family relations. A bona fide communication by a brother to his sister reflecting on the character of her suitor is privileged. Anon., 2 Smith, 4, cited; Adams v. Coleridge, 1 T. L. R. 4. So is a similar communication by a son-in-law to his mother-in-law. Todd v. Hawkins, 2 M. & Rob. 20, 8 C. & P. 88.

Inquiry as to character of candidate for admission to a society. Cadle v. McIntosh, 51 Ind. App. 365.

[486]. Only this opinion and the dissenting opinion of Creswell, J., are given. Erle, J., concurred with the Lord Chief Justice; Coltman, J., agreed with Cresswell, J.

[487]. “If it had been necessary, I should have been fully prepared to go the whole length of the doctrine laid down by Tindal, C. J., in the case of Coxhead v. Richards,” per Willes, J., in Amann v. Damm, 8 C. B. N. S. 592, 602. Blackburn, J., in Davies v. Snead, L. R. 5 Q. B. 605, 611, and Lindley, J., in Stuart v. Bell, [1891] 2 Q. B. 341, 347, expressed similar approval of the opinion of Tindal, C. J.

Vanspike v. Cleyson, Cro. El. 541; Peacock v. Reynal, 2 Br. & Gold. 151, 15 C. B. N. S. 418, cited; Herver v. Dowson, Bull. N. P. 8; Cleaver v. Sarraude, 1 Camp. 268, cited; Picton v. Jackman, 4 Car. & P. 257; Dixon v. Smith, 29 L. J. Ex. 125, 126; Masters v. Burgess, 3 T. L. R. 96; Stuart v. Bell, [1891] 2 Q. B. 341; Hart v. Reed, 1 B. Mon. 166; Fresh v. Cutter, 73 Md. 87; Noonan v. Orton, 32 Wis. 106 Accord.

Cockayne v. Hodgkisson, 5 Car. & P. 543 (semble); King v. Watts, 8 Car. & P. 614; Brown v. Vannaman, 85 Wis. 451 Contra. But see Hocks v. Sprangers, 113 Wis. 123.

In Bennett v. Deacon, 2 C. B. 628, a creditor of a buyer volunteered a warning to the seller as to the buyer’s credit. The court was evenly divided as to whether the communication was privileged.

Compare Irion v. Knapp, 132 La. 60 (letter to a public board as to a candidate for an appointment).

Indian Penal Code, § 499, exception 9. It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.

[488]. As to this remarkable litigant, see the article by Irving Browne, “Count Joannes,” 8 Green Bag. 435.

[489]. Only what relates to this count is given.

[490]. Krebs v. Oliver, 12 Gray, 239; Byam v. Collins, 111 N. Y. 143 Accord.

Anon., 15 C. B. N. S. 410 (cited); Adcock v. Marsh, 8 Ired. 360 Contra. See Dobbin v. Chicago R. Co., 157 Mo. App. 689.

[491]. The statement of the case has been condensed.

[492]. In Simmonds v. Dunne, Ir. R. 5 C. L. 358; Over v. Schiffling, 102 Ind. 191; York v. Johnson, 116 Mass. 482, the communications were not privileged for want of a legitimate interest or duty on the part of the defendant.

See Whiteley v. Newman, 9 Ga. App. 89.

[493]. Only the opinion of the court is given.

[494]. Jones v. Thomas, 34 W. R. 104; Pittard v. Oliver, [1891] 1 Q. B. 474; Broughton v. McGrew, 39 Fed. 672; Brow v. Hathaway, 13 All. 239; Billings v. Fairbanks, 136 Mass. 177, 139 Mass. 66; Keane v. Sprague (N. Y. City Court), 30 Alb. L. J. 283 Accord.

Webber v. Vincent, 9 N. Y. Supp. 101 Contra.

Defamatory letter after termination of employment. National Cash Register Co. v. Salling, 173 Fed. 22.

[495]. In Christopher v. Akin, 214 Mass. 332, the plaintiff was a journeyman painter in the employ of the defendant, and was at work on the house of one Tillinghast. Tillinghast complained to the defendant that some of his men had stolen a putty knife and other property belonging to him. The defendant recompensed Tillinghast for the property and testified that he was told by one of his men that the plaintiff had admitted to him that he took the putty knife. The men were paid off by the defendant at his shop on Saturday night,—their time being made up to Wednesday. Their pay was handed to them in envelopes. When a man was discharged his envelope contained his pay up to Saturday night. The plaintiff’s envelope contained his pay in full, less what the defendant had paid Tillinghast for the property, with a bill for it. There were four or five men in the shop waiting to be paid off when it came the plaintiff’s turn to be paid. The plaintiff opened his envelope and counted the money and found the bill. The plaintiff asked the defendant what that meant, and the defendant said in response, “Do you want to know in front of all these men?” and he said “Yes,” whereupon the defendant said, “That is the stuff you stole from the Tillinghast job.” Morton, J., said: “Whether a communication is or is not privileged does not depend so much on the manner or form in which crime is imputed, where the alleged slander consists as here of a charge of crime, as on the occasion and circumstances under which the charge is made. If made in good faith in reference to a matter in which the person making it is immediately interested, and for the purpose of protecting his interest and in the belief that it is true and without any malicious motive, the communication is what is termed privileged; that is, the occasion and the circumstances under which it is made are held to be such as, if nothing more appears, to excuse or justify the statements that are made.”

See Madill v. Currie, 168 Mich. 546.

Compare Adam v. Ward, [1917] A. C. 309 (statement given to the press by the army board in reply to a speech in Parliament regarding an army officer).

[496]. The statement of the case is abridged; the arguments of counsel and the concurring opinions of Lord Coleridge, C. J., and Denman, J., are omitted.

[497]. Robinson v. Jones, L. R. 4 Ir. 391 Accord.

[498]. Robinson v. Jones, L. R. 4 Ir. 391 Accord. See also Smith v. Crocker, 5 T. L. R. 441; Muetze v. Tuteur, 77 Wis. 236.

Statement in presence of third persons not interested. Fowlie v. Cruse, 52 Mont. 222; Fields v. Bynum, 156 N. C. 413.

Notice of discharge of employee posted on the premises. Ramsdell v. Pennsylvania Co., 79 N. J. Law, 379.

Notice to customers in a local newspaper. Hatch v. Lane, 105 Mass. 394. See Delany v. Jones, 4 Esp. 190 (but see Ley v. Lawson, 4 A. & E. 798); Commonwealth v. Featherston, 9 Phila. 594; Holliday v. Ontario Co., 33 Up. Can. Q. B. 558.

General publicity with respect to candidate for local office. Duncombe v. Daniel, 1 Willmore, W. & H. 101, 8 Car. & P. 222; Jones v. Varnum, 21 Fla. 431; State v. Haskins, 109 Ia. 656; Coleman v. MacLennan, 78 Kan. 711; Bronson v. Bruce, 59 Mich. 467; Wheaton v. Beecher, 66 Mich. 307; Belknap v. Ball, 83 Mich. 583; Aldrich v. Press Co., 9 Minn. 133 (but see, contra, Marks v. Baker, 28 Minn. 162); Bigner v. Hodges, 82 Miss. 215; Lewis v. Few, 5 Johns. 1; Root v. King, 7 Cow. 613; Hunt v. Bennett, 19 N. Y. 173; Seely v. Blair, Wright, (Ohio) 358, 683; Knapp v. Campbell, 14 Tex. Civ. App. 199; Sweeney v. Baker, 13 W. Va. 158. Compare Flynn v. Boglarsky, 164 Mich. 513.

But a communication to the electors alone is privileged, if made in good faith. Wisdom v. Brown, 1 T. L. R. 412; Pankhurst v. Hamilton, 3 T. L. R. 500; Burke v. Mascarich, 81 Cal. 302 (semble); Mott v. Dawson, 46 Ia. 533; Bays v. Hunt, 60 Ia. 251; State v. Balch, 31 Kan. 465; Commonwealth v. Wardwell, 136 Mass. 164; Briggs v. Garrett, 111 Pa. St. 404.

But see, contra, Smith v. Burrus, 106 Mo. 94, where the distinction between fair comment and qualified privilege was overlooked. See also Estelle v. Daily News Pub. Co., 99 Neb. 397; Arnold v. Ingram, 151 Wis. 438; Putnam v. Browne, 162 Wis. 524.

[499]. The court found that the defendant acted in good faith.

[500]. Ashford v. Evening Star Co., 41 App. D. C. 395; Addington v. Times Pub. Co., 138 La. 731; Briggs v. Garrett, 111 Pa. St. 404 (semble); Express Co. v. Copeland, 64 Tex. 354 Accord. Compare Bingham v. Gaynor, 141 App. Div. 301; Ivie v. Minton, 75 Or. 483.

Statement at a meeting to oppose a candidate for public office. Baker v. Warner, 231 U. S. 588.

Criticism of minister in a church convention. Dickson v. Lights, (Tex. Civ. App.) 17 S. W. 834.

Criticism of member of association at a meeting to discuss the affairs of the association. Caldwell v. Hayden, 42 App. D. C. 166.

Reply to defamatory statements. Adam v. Ward [1917] A. C. 309; Preston v. Hobbs, 161 App. Div. 363; Smith v. Kemp, 132 La. 943.

[501]. Only part of the opinion is given.

[502]. Criticism of member of congregation in a sermon. Hassett v. Carroll, 85 Conn. 23.

Statement by clergyman to congregation as to conduct of a trustee. Everett v. DeLong, 144 Ill. App. 496.

[503]. The arguments of counsel and the concurring opinions of Lopes and Kay, L.JJ., are omitted.

[504]. Bohlinger v. Germania Ins. Co., 100 Ark. 477; Gambrill v. Schooley, 93 Md. 48 Accord. See Central R. Co. v. Jones, 18 Ga. App. 414. But the dictation of a defamatory letter by a lawyer to his clerk and the copying of it by another clerk in the regular course of serving his clients, although a publication, is, nevertheless, privileged. Boxsius v. Goblet, [1894] 1 Q. B. 842. And the authority of Pullman v. Hill is greatly weakened by Edmonson v. Birch, [1907] 1 K. B. 371, which treats as privileged the dictation of a defamatory letter by a company through one of its officers to a stenographer, and Roff v. British Chemical Co., [1918] 2 K. B. 277 (letter passed through the hands of two clerks of addressee). See to the same effect Owen v. Ogilvie Co., 32 App. Div. 465.

Exchange of letters by mistake whereby privileged letter goes to wrong person. See Tompson v. Dashwood, 11 Q. B. D. 43; Hebditch v. McIlwaine, [1894] 2 Q. B. 54, 61.

A defamatory statement true of A. but published concerning B., by mistake, will support an action by B. Shepheard v. Whitaker, L. R. 10 C. P. 502; Taylor v. Hearst, 107 Cal. 262; Griebel v. Rochester Co., 60 Hun, 319. But see, contra, Hanson v. Globe Co., supra, 665 (Holmes, Morton, and Barker, JJ., dissenting).

Compare Brett v. Watson, 20 W. R. 723; Fox v. Broderick, 14 Ir. C. L. R. 453, 459; Loibl v. Breidenbach, 78 Wis. 49.

[505]. The concurring opinions of Bramwell and Brett, L.JJ., and the argument for defendant are omitted.

[506]. Salmon v. Isaac, 20 L. T. Rep. 885; Lawyers Pub. Co. v. West Pub. Co., 32 App. Div. 585; Saunders v. Baxter, 6 Heisk. 369 Accord.

[507]. 3 Q. B. Div. 237, S. C.

[508]. The charge of the learned baron is abridged; the arguments of counsel and the concurring opinions of Bramwell and Cotton, L.JJ., are omitted.

[509]. Barry v. McCollom, 81 Conn. 293; Bays v. Hunt, 60 Ia. 251, 255–6; Hemmens v. Nelson, 138 N. Y. 517; Haft v. First Bank, 19 App. Div. 423 Accord.

[510]. The case is materially abridged.

[511]. Ranson v. West, 125 Ky. 457 (semble); Toothaker v. Conant, 91 Me. 438; Briggs v. Garrett, 111 Pa. St. 404; Conroy v. Pittsburgh Times, 139 Pa. St. 334; Mulderig v. Wilkes Barre Times, 215 Pa. St. 470; Egan v. Dotson, 36 S. D. 459 Accord.

See also, Douglass v. Daisley, 114 Fed. 628.

Compare Glisson v. Biggio, 139 La. 23; Estelle v. Daily News Pub. Co., 99 Neb. 397; Wiese v. Riley, 146 Wis. 640.

Petition or memorial for removal of public officer privileged. Blake v. Pilfold, 1 M. & Rob. 198; Woodward v. Lander, 6 Car. & P. 548; James v. Boston, 2 Car. & K. 4; Spackman v. Gibney, Odgers, Lib. & Sl. (5th ed.) 278; Beatson v. Skene, 5 H. & N. 838; Harrison v. Bush, 5 E. & B. 344; Hart v. Von Gumpach, L. R. 4 P. C. 439; Stanton v. Andrews, 5 Up. Can. Q. B. O. S. 211; Corbett v. Jackson, 1 Up. Can. Q. B. 128; Rogers v. Spalding, 1 Up. Can. Q. B. 258; McIntire v. McBean, 13 Up. Can. Q. B. 534; Bell v. Parke, 10 Ir. C. L. R. 279 (semble); White v. Nichols, 3 How. 266; Vogel v. Gruaz, 110 U. S. 311; Pearce v. Brower, 72 Ga. 243; Young v. Richardson, 4 Ill. App. 364; Rainbow v. Benson, 71 Ia. 301; Rabb v. Trevelyan, 122 La. 174; Bodwell v. Osgood, 3 Pick. 379; Wieman v. Mabee, 45 Mich. 484; Greenwood v. Cobbey, 26 Neb. 449; State v. Burnham, 9 N. H. 34; Thorn v. Blanchard, 5 Johns. 508; Vanderzee v. McGregor, 12 Wend. 545; Howard v. Thompson, 21 Wend. 319; Halstead v. Nelson, 24 Hun, 395; Decker v. Gaylord, 35 Hun, 584; Woods v. Wiman, 122 N. Y. 445, 47 Hun, 362; Cook v. Hill, 3 Sandf. 341; Van Wyck v. Aspinwall, 17 N. Y. 190; Harwood v. Keech, 6 Th. & C. 665; Logan v. Hodges, 146 N. C. 38; Gray v. Pentland, 2 S. & R. 23; Kent v. Bongartz, 15 R. I. 72; Reid v. Delorme, 2 Brev. 76; Harris v. Huntington, 2 Tyler, 129 Accord.

But not absolutely privileged, where the proceeding is not judicial. Dickson v. Wilton, 1 F. & F. 419; Proctor v. Webster, 16 Q. B. D. 112; Woods v. Wiman, 122 N. Y. 445; Morah v. Steele, 157 App. Div. 109; Fulton v. Ingalls, 165 App. Div. 323.

Compare McKee v. Hughes, 133 Tenn. 455 (petition to revoke merchant’s license).

[512]. The statement of the case, the arguments of counsel, the judgment of Mellor, J., and portions of the judgments of Crompton and Blackburn, JJ., are omitted.

[513]. Hibbs v. Wilkinson, 1 F. & F. 608; Turnbull v. Bird, 2 F. & F. 508; Hunter v. Sharpe, 4 F. & F. 983; Hunt v. Star Co., [1908] 2 K. B. 309; Walker v. Hodgson, [1909] 1 K. B. 239, 253; De Mestre v. Syme, 9 Vict. L. R. (L) 10; Davis v. Duncan, L. R. 9 C. P. 396; Queen v. Carden, 5 Q. B. D. 1, 8; Crane v. Waters, 10 Fed. 619; Kinyon v. Palmer, 18 Ia. 377; Bradford v. Clark, 90 Me. 298; People v. Glassman, 12 Utah, 238 Accord.

[514]. Stuart v. Lovell, 2 Stark. 93; Macleod v. Wakley, 3 Car. & P. 311; Green v. Chapman, 4 Bing. N. C. 92; Parmiter v. Coupland, 6 M. & W. 105; Whistler v. Ruskin, Odgers, Lib. & Sl., (5th ed.) 196; Wilson v. Reed, 2 F. & F. 149; Morrison v. Belcher, 3 F. & F. 614; Hedley v. Barlow, 4 F. & F. 224; Risk Allah Bey v. Whitehurst, 18 L. T. Rep. 615; Joynt v. Cycle Co., [1904] 2 K. B. 292; Massie v. Toronto Co., 11 Ont. 362; Burt v. Advertiser Co., 154 Mass. 238; Cooper v. Stone, 24 Wend. 434; Reade v. Sweetzer, 6 Abb. Pr. N. S. 9, n.; Ullrich v. N. Y. Co., 23 Misc. 168 Accord.

[515]. See contra, Williams v. Spowers, 8 Vict. L. R. (Law) 82.

[516]. Honest belief is no defense apart from privilege. Van Wiginton v. Pulitzer Pub. Co., (C. C. A.) 218 Fed. 483; Brandt v. Story, 161 Ia. 451; Tanner v. Stevenson, 138 Ky. 578; Reid v. Nichols, 166 Ky. 423; Sweet v. Post Pub. Co., 215 Mass. 450; Clair v. Battle Creek Journal Co., 168 Mich. 467; Ivie v. King, 167 N. C. 174; Spencer v. Minnick, 41 Okl. 613; Williams v. Hicks Printing Co., 159 Wis. 90.

Fair comment on public affairs and public officers. See Gandia v. Pettingill, 222 U. S. 452; Lowe v. News Pub. Co., 9 Ga. App. 103; Diener v. Star Chronicle Pub. Co., 230 Mo. 613; Cook v. Globe Printing Co., 227 Mo. 471; Merrey v. Guardian Pub. Co., 79 N. J. Law, 177; Bingham v. Gaynor, 203 N. Y. 27.

Fair comment on candidates. Walsh v. Pulitzer Pub. Co., 250 Mo. 142; Schull v. Hopkins, 26 S. D. 21; Ingalls v. Morrissey, 154 Wis. 632.

Fair comment on persons seeking public patronage. Ott v. Murphy, 160 Ia. 730.

[517]. Dibdin v. Swan, 1 Esp. 28; Heriot v. Stuart, 1 Esp. 437; Stuart v. Lovell, 2 Stark. 93 (semble); Tabart v. Tipper, 1 Camp. 350 (semble); Dunne v. Anderson, Ry. & M. 287, 3 Bing. 88; Soane v. Knight, M. & M. 74; Thompson v. Shackell, M. & M. 187; Macleod v. Wakley, 3 Car. & P. 311; Fraser v. Berkeley, 7 Car. & P. 621; Evans v. Harlow, Dav. & M. 507; Paris v. Levy, 9 C. B. N. S. 342; Eastwood v. Holmes, 1 F. & F. 347; Hibbs v. Wilkinson, 1 F. & F. 608; Turnbull v. Bird, 2 F. & F. 508; Strauss v. Francis, 4 F. & F. 939, 1107, 15 L. T. Rep. 674; Henwood v. Harrison, L. R. 7 C. P. 606; Jenner v. A’Beckett, L. R. 7 Q. B. 11; Mulkern v. Ward, 13 Eq. 619, 622; Whistler v. Ruskin, Odgers, Lib. & Sl., (5 ed.) 196; Duplany v. Davis, 3 T. L. R. 184; McQuire v. Western Co., [1903] 2 K. B. 100; Crane v. Waters, 10 Fed. 619; Snyder v. Fulton, 34 Md. 128, 137; Gott v. Pulsifer, 122 Mass. 235; O’Connor v. Sill, 60 Mich. 175; Dowling v. Livingstone, 108 Mich. 321; Cooper v. Stone, 24 Wend. 434 (semble); Reade v. Sweetzer, 6 Abb. Pr. N. S. 9, n. (semble); Adolf Philipp Co. v. New Yorker Staatszeitung, 165 App. Div. 377; Press Co. v. Stewart, 119 Pa. St. 584 Accord.

“The defendant was, in my opinion, entitled to have the jury’s decision, as to the plea of fair comment, whether or not, in all the circumstances proved, the libel went beyond a fair comment on the plaintiff and on the system of medical enterprise with which he associated himself, as a matter of public interest treated by the defendant honestly and without malice. The plea of fair comment does not arise if the plea of justification is made good, nor can it arise unless there is an imputation on a plaintiff. It is precisely where the criticism would otherwise be actionable as a libel that the defence of fair comment comes in. But the learned judge put aside that defence, and told the jury that unless a justification was proved they were bound to find a verdict for the plaintiff, and that, unless justified, the libel is not fair comment and cannot come within the region of fair comment.” Lord Loreburn, L. C., in Dakhyl v. Labouchere, [1908] 2 K. B. 325, 326–27.

[518]. The arguments are omitted.

[519]. The statement has been abridged, and the arguments of counsel together with a small portion of the judgment are omitted.

[520]. Merivale v. Carson, supra, 775; McQuire v. Western Co., [1903] 2 K. B. 100, 110; Joynt v. Cycle Co., [1904] 2 K. B. 292; Digby v. Financial News, [1907] 1 K. B. 502; Hunt v. Star Co., [1908] 2 K. B. 309, 317; Walker v. Hodgson, [1909] 1 K. B. 239; Starks v. Comer, 190 Ala. 245; Com. v. Pratt, 208 Mass. 553; Williams v. Hicks Printing Co., 159 Wis. 90; Putnam v. Browne, 162 Wis. 524 Accord.

In Walker v. Hodgson, Kennedy, L. J., said, p. 256: “Now it is true that there may be comment of an injurious nature in which there is no statement of facts, or which refers to facts which are admitted or are indisputable. In such a case the fairness of the comment depends upon the character of the criticisms, or the inferences of which it is composed, that is, whether it is a comment made honestly and bona fide, or a comment made mala fide and maliciously.... But where the words which are alleged to be defamatory allege, or assume as true, facts concerning the plaintiff which the plaintiff denies, and which either involve a slanderous imputation in themselves, or upon which the comment bases imputations or inferences injurious to the plaintiff, it is, I think, settled law that the defence of fair comment fails, unless the comment is truthful in regard to its allegation or assumption of such facts.” See also the remarks of Buckley, L. J., in the same case, p. 253.

In Hubbard v. Allyn, 200 Mass. 167, Rugg, J., said (p. 170): “The right of the defendant was not to make false statements of fact because the subject matter was of public interest, but only to criticise, discuss and comment upon the real acts of the plaintiff and the consequences likely to follow from them, or upon any other aspect of the case in a reasonable way. This may be done with severity. Ridicule, sarcasm and invective may be employed. But the basis must be a fact, and not a falsehood.”

Nor does it cover violent attacks and insulting statements. Press Pub. Co. v. Gillette, (C. C. A.) 229 Fed. 108; Jozsa v. Moroney, 125 La. 813; Hines v. Shumaker, 97 Miss. 669; Patten v. Harpers Weekly Corp., 158 N. Y. Supp. 70; Hayden v. Hasbrouck, 34 R. I. 556; Spencer v. Looney, 116 Va. 767; Williams v. Hicks Printing Co., 159 Wis. 90; Putnam v. Browne, 162 Wis. 524; Compare Dickson v. Lights, (Tex. Civ. App.) 170 S. W. 834. And see Phillips v. Bradshaw, 167 Ala. 199.

[521]. Robinson v. Coulter, 215 Mass. 566; Tawney v. Simonson, 109 Minn. 341 Accord.

The burden is on the plaintiff to show malice, not on the defendant to show good faith. Jenoure v. Delmege, [1891] A. C. 73; Davis v. Hearst, 160 Cal. 143; Locke v. Bradstreet Co., 22 Fed. 771; Hemmens v. Nelson, 138 N. Y. 517; Haft v. Newcastle Bank, 19 App. Div. 423; Strode v. Clement, 90 Va. 553.

Definitions of “malice.” Doane v. Grew, 220 Mass. 171; Peake v. Taubman, 251 Mo. 390. See Marney v. Joseph, 94 Kan. 18.

“If proof of a malevolent motive would rebut the privilege, which we do not decide, nothing less than that would do, so far as malice is concerned. It is true, as is said in the very careful brief for the plaintiff, that in most connections malice means only knowledge of facts sufficient to show that the contemplated act is very likely to have injurious consequences. Apart from statute it generally means no more when the question is what is sufficient prima facie to charge a defendant. Burt v. Advertiser Newspaper Co., 154 Mass. 238, 245. But sometimes the defence is not that the damage was not to be foreseen, but rests on what in substance is a privilege, whether of a kind usually pleaded as such or not, that is to say, on a right to inflict the damage even knowingly. In such cases, if malice in any sense makes a difference, as distinguished from excess over what was reasonable or needful to do or say under the circumstances, which often is included under the same word, Gott v. Pulsifer, 122 Mass. 235, 239, it means that the defendant is not within the privilege because he was not acting in bona fide answer to the needs of the occasion, but outside of it from a wish to do harm. See Wren v. Weild, L. R. 4 Q. B. 730, 735, 736; Clark v. Molyneux, 3 Q. B. D. 237, 246, 247.” Holmes, C. J., in Squires v. Wason Mfg. Co., 182 Mass. 137, 141.

See Advertiser Co. v. Jones, 169 Ala. 196, 670; Davis v. Hearst, 160 Cal. 143.

Reckless republication without inquiry. Houston Chronicle Pub. Co. v. Wegner, (Tex. Civ. App.) 182 S. W. 45.

“Malice” on the face of publication. Ashford v. Evening Star Co., 41 App. D. C. 395; Dickson v. Lights, (Tex. Civ. App.) 170 S. W. 834.

[522]. 16 C. B. N. S. 829, S. C.

[523]. Nevill v. Fine Arts Co., [1895] 2 Q. B. 156; Hollenbeck v. Ristine, 105 Ia. 488; Children v. Shinn, 168 Ia. 531; Atwill v. Mackintosh, 120 Mass. 177; Wagner v. Scott, 164 Mo. 289; McGaw v. Hamilton, 184 Pa. St. 108; Hellstern v. Katzer, 103 Wis. 391 Accord. Compare Davis v. New England Pub. Co., 203 Mass. 470; Doane v. Grew, 220 Mass. 171.

[524]. Only the opinion of the court is given.

[525]. Parmiter v. Coupland, 6 M. & W. 105; Odger v. Mortimer, 28 L. T. Rep. 472; Queen v. Carden, 5 Q. B. Div. 1, 8; Bryce v. Rusden, 2 T. L. R. 435; Duplany v. Davis, 3 T. L. R. 184; R. v. Flowers, 44 J. P. 377, per Field, J.; LeFroy v. Burnside, L. R. 4 Ir. 556, 565, 566; Stewart v. McKinley, 11 Vict. L. R. 802; Browne v. McKinley, 12 Vict. L. R. 240; Smith v. Tribune Co., 4 Biss. 477; McDonald v. Woodruff, 2 Dill. 244; Hallam v. Post Co., 55 Fed. 456, 59 Fed. 530; Parsons v. Age Herald Pub. Co., 181 Ala. 439; Jarman v. Rea, 137 Cal. 339; Dauphiny v. Buhne, 153 Cal. 757; Star Co. v. Donahoe, (Del.) 58 Atl. 513; Jones v. Townsend, 21 Fla. 431; Rearick v. Wilcox, 81 Ill. 77; Klos v. Zahorik, 113 Ia. 161; Ott v. Murphy, 160 Ia. 730; Bearce v. Bass, 88 Me. 521; Negley v. Farrow, 60 Md. 158; Commonwealth v. Clap, 4 Mass. 163, 169 (semble); Curtis v. Mussey, 6 Gray, 261; Burt v. Advertiser Co., 154 Mass. 238 (compare Sillars v. Collier, 151 Mass. 50); Hubbard v. Allyn, 200 Mass. 166; Foster v. Scripps, 39 Mich. 376; Bronson v. Bruce, 59 Mich. 467; Bourreseau v. Detroit Co., 63 Mich. 425; Wheaton v. Beecher, 66 Mich. 307; Belknap v. Ball, 83 Mich. 583; Hay v. Reid, 85 Mich. 296; Smurthwaite v. News Co., 124 Mich. 377; Aldrich v. Press Co., 9 Minn. 133 (but see, contra, Marks v. Baker, 28 Minn. 162); Smith v. Burrus, 106 Mo. 94; State v. Schmitt, 49 N. J. Law, 579; Lewis v. Few, 5 Johns. 1; Root v. King, 7 Cow. 613; Littlejohn v. Greeley, 13 Abb. Pr. 41; Hamilton v. Eno, 81 N. Y. 116; Mattice v. Wilcox, 147 N. Y. 624; Hoey v. New York Times Co., 138 App. Div. 149; Ullrich v. N. Y. Co., 23 Misc. 168; Seely v. Blair, Wright, (Ohio) 358, 683; Post Co. v. Moloney, 50 Ohio St. 71; Upton v. Hume, 24 Or. 420; Barr v. Moore, 87 Pa. St. 385; Brewer v. Weakley, 2 Overt. 99; Banner Co. v. State, 16 Lea, 176; Democrat Co. v. Jones, 83 Tex. 302; Sweeney v. Baker, 13 W. Va. 158; Spiering v. Andrae, 45 Wis. 330; Eviston v. Cramer, 57 Wis. 570; Gagen v. Dawley, 162 Wis. 152; D. Ward v. Derrington, 14 S. Aust. L. R. 35; Haselgrove v. King, 14 S. Aust. L. R. 192 Accord.

Mott v. Dawson, 46 Ia. 533; Bays v. Hunt, 60 Ia. 251 (but see State v. Haskins, 109 Ia. 656, 658, and Morse v. Printing Co., 124 Ia. 707, 723); State v. Balch, 31 Kan. 465; Coleman v. McLennan, 78 Kan. 711; Marks v. Baker, 28 Minn. 162; State v. Burnham, 9 N. H. 34; Neeb v. Hope, 111 Pa. St. 145; Briggs v. Garrett, 111 Pa. St. 404; Press Co. v. Stewart, 119 Pa. St. 584; Jackson v. Pittsburgh Times, 152 Pa. St. 406; Ross v. Ward, 14 S. D. 240; Boucher v. Clark Co., 14 S. D. 72 Contra.

See Palmer v. Concord, 48 N. H. 211.

In Burt v. Advertiser Co., 154 Mass. 238, Holmes, J., said: “But there is an important distinction to be noticed between the so-called privilege of fair criticism upon matters of public interest, and the privilege existing in the case, for instance, of answers to inquiries about the character of a servant. In the latter case, a bona fide statement not in excess of the occasion is privileged, although it turns out to be false. In the former, what is privileged, if that is the proper term, is criticism, not statement, and however it might be if a person merely quoted or referred to a statement as made by others, and gave it no new sanction, if he takes upon himself in his own person to allege facts otherwise libellous, he will not be privileged if those facts are not true. The reason for the distinction lies in the different nature and degree of the exigency and of the damage in the two cases. In these, as in many other instances, the law has to draw a line between conflicting interests, both intrinsically meritorious. When private inquiries are made about a private person, a servant, for example, it is often impossible to answer them properly without stating facts, and those who settled the law thought it more important to preserve a reasonable freedom in giving necessary information than to insure people against occasional unintended injustice, confined as it generally is to one or two persons. But what the interest of private citizens in public matters requires is freedom of discussion rather than of statement. Moreover, the statements about such matters which come before the courts are generally public statements, where the harm done by a falsehood is much greater than in the other case. If one private citizen wrote to another that a high official had taken a bribe, no one would think good faith a sufficient answer to an action. He stands no better, certainly, when he publishes his writing to the world through a newspaper, and the newspaper itself stands no better than the writer. Sheckell v. Jackson, 10 Cush. 25, 26.”

Participants in legal proceedings are legitimate subjects for comment if restricted to their conduct therein. Rex v. White, 1 Camp. 359; Seymour v. Butterworth, 3 F. & F. 372; Hedley v. Barlow, 4 F. & F. 224; Woodgate v. Ridout, 4 F. & F. 202; Hibbins v. Lee, 4 F. & F. 243; Risk Allah Bey v. Whitehurst, 18 L. T. Rep. 615; Reg. v. Sullivan, 11 Cox C. C. 44, 57; Kane v. Mulvany, Ir. R. 2 C. L. 402; Miner v. Detroit Co., 49 Mich. 358. See also Kelly v. Tinling, L. R. 1 Q. B. 699 (churchwarden); Harle v. Catherall, 14 L. T. Rep. 801 (waywarden).

Matters not of public interest. The right of comment was denied in Latimer v. Western Co., 25 L. T. Rep. 44; Hogan v. Sutton, 16 W. R. 127; Wilson v. Fitch, 41 Cal. 363.

See also Hearne v. Stowell, 12 A. & E. 719; Gathercole v. Miall, 15 M. & W. 319; Walker v. Brogden, 19 C. B. N. S. 65; Booth v. Briscoe, 2 Q. B. Div. 496.

[526]. Arguments omitted.

[527]. The decision of the Appellate Division, overruling demurrer to complaint, is reported in 64 App. Div. 30.

[528]. Corelli v. Wall, 22 Times L. R. 532 (post cards depicting imaginary incidents of an author’s life); Atkinson v. Doherty, 121 Mich. 372 (picture of plaintiff’s dead husband on cigar label); Henry v. Cherry, 30 R. I. 13 (picture as advertisement); Hillman v. Star Pub. Co., 64 Wash. 691 (picture of plaintiff in connection with report of arrest of her father for crime) Accord. Compare Chappell v. Stewart, 82 Md. 323 (shadowing).

Corliss v. Walker, 57 Fed. 434 (semble); Von Theodorovich v. Josef Beneficiary Ass’n, 154 Fed. 911 (semble); Pavesich v. New England Ins. Co., 122 Ga. 190 (picture as advertisement); Foster-Milburn Co. v. Chinn, 134 Ky. 424 (picture as advertisement); Douglas v. Stokes, 149 Ky. 506 (publishing photograph of deceased deformed child of plaintiff); Itzkovitch v. Whitaker, 115 La. 479, 117 La. 708 (photograph in rogues’ gallery); Schulman v. Whitaker, 117 La. 704; Munden v. Harris, 153 Mo. App. 652 (picture as advertisement); Edison v. Edison Polyform & Mfg. Co., 73 N. J. Eq. 136 (picture—but here there was chiefly an interest of substance) Contra.

See also Dill, J. in Vanderbilt v. Mitchell, 72 N. J. Eq. 910, 919.

As to photographing persons arrested on charges of crime, see Hodgman v. Olsen, 86 Wash. 615.

New York, Civil Rights Law, §§ 50, 51 (Laws of 1903, ch. 132, §§ 1, 2).

§ 50. A person, firm, or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait, or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

§ 51. Any person whose name, portrait, or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm, or corporation so using his name, portrait, or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries maintained by reason of such use, and if the defendant shall have knowingly used such person’s name, portrait, or picture in such manner as is forbidden or declared to be unlawful by this act, the jury, in its discretion, may award exemplary damages.

See Binns v. Vitagraph Co., 210 N. Y. 51.

On the whole subject, see Warren and Brandeis, The Right to Privacy, 4 Harvard Law Rev. 193; Pound, Interests of Personality, 28 Harvard Law Rev. 343, 362–364.

[529]. 4 Rep. 16 b, S. C.

[530]. Dame Morrison’s Case, Jenk. 316; Matthew v. Crasse, 2 Bulst. 89; Sell v. Facy, 2 Bulst. 276, 3 Bulst. 48; Nelson v. Staff, Cro. Jac. 422; Thomson’s Case, Bendl. 148; Countess of Salop’s Case, Bendl. 155; Taylor v. Tolwin, Latch, 218; Wicks v. Shepherd, Cro. Car. 155; Southold v. Daunston, Cro. Car. 269 Accord.

See Bridge v. Langton, Litt. 193; Norman v. Simons, 1 Vin. Abr. Act. Words, D, a, 12.

In Felty v. Felty, 164 Ky. 355, plaintiff’s husband left her as a result of the defamatory words.

[531]. The arguments of counsel are omitted, together with the concurring opinions of Martin, Bramwell, and Wilde, BB.

[532]. Guy v. Gregory, 9 Car. & P. 584; Adams v. Smith, 58 Ill. 417; Woodbury v. Thompson, 3 N. H. 194; Butler v. Hoboken Co., 73 N. J. Law, 45; Beach v. Ranney, 2 Hill, 309; Terwilliger v. Wands, 17 N. Y. 54 (overruling Bradt v. Towsley, 13 Wend. 253; Olmsted v. Brown, 12 Barb. 657; Fuller v. Fenner, 16 Barb. 333); Wilson v. Goit, 17 N. Y. 442; Bassell v. Elmore, 48 N. Y. 561; Shepherd v. Lamphier, 84 Misc. 498; Clark v. Morrison, 80 Or. 240 Accord. But see Garrison v. Sun Publishing Ass’n, 207 N. Y. 1 (defendant published a libel on plaintiff’s wife resulting in illness and loss of her services).

McQueen v. Fulgham, 27 Tex. 463; Underhill v. Welton, 32 Vt. 40 Contra.

Damage caused by another person’s repetition of the defendant’s words is too remote. Holwood v. Hopkins, Cro. El. 787; Ward v. Weeks, 7 Bing. 211 (but see Riding v. Smith, 1 Ex. D. 91); Rutherford v. Evans, 4 Car. & P. 74; Tunnicliff v. Moss, 3 Car. & K. 83; Kendillon v. Maltby, 1 Car. & M. 402; Parkins v. Scott, 1 H. & C. 153; Dixon v. Smith, 5 H. & N. 450; Clarke v. Morgan, 38 L. T. Rep. 354; Bree v. Marescaux, 7 Q. B. Div. 434; Cates v. Kellogg, 9 Ind. 506; Stevens v. Hartwell, 11 Met. 542; Hastings v. Stetson, 126 Mass. 329; Hastings v. Palmer, 20 Wend. 225; Hallock v. Miller, 2 Barb. 630; Olmsted v. Brown, 12 Barb. 657; Terwilliger v. Wands, 17 N. Y. 54; Fowles v. Bowen, 30 N. Y. 20; Bassell v. Elmore, 48 N. Y. 561 (but see Sewell v. Catlin, 3 Wend. 295; Keenholts v. Becker, 3 Den. 346).

See also Whitney v. Moignard, 24 Q. B. Div. 630; Speight v. Gosnay, 60 L. J. Q. B. 231; Adams v. Cameron, 27 Cal. App. 625; Mills v. Flynn, 157 Ia. 477; Fitzgerald v. Young, 89 Neb. 693.

The rule is otherwise where the repetition is made as a privileged communication. Gillett v. Bullivant, 7 L. T. 490; Derry v. Handley, 16 L. T. Rep. 263; Fowles v. Bowen, 30 N. Y. 20.

[533]. Only the opinion of the court is given.

[534]. The case is materially abridged.

[535]. The statement of the counts is abridged, and the arguments of counsel are omitted.

[536]. But see now Paterson v. Welch, (Court of Sess. May 31, 1893) 20 R. 744. See also Odgers, Lib. & Sl. (1st ed.) 87, 91; Odgers, Outlines of Law of Libel, 17, 18; Clerk & Lindsell, Torts, (1st ed.) 497–98; Salmond, Torts, 426–27; Bower’s Code of Actionable Defamation, 338–39, 443–45.

[537]. “It may be reasonable to allow St. Peter a primacy of order, such a one as the ringleader hath in a dance.”—Barrow’s Treatise of the Pope’s Supremacy, Oxford edition of Works, 1830, vol. vii. p. 70. In Fox’s Preface to Tyndall’s Works, “these three learned fathers of blessed memory, William Tyndall, John Frith, and Robert Barons,” are styled “chief ringleaders in these latter tymes of thys Church of England.”—Reporter’s Note.

[538]. Only the opinion of Day, J., is given. Wills, J., concurred.

[539]. Slander of title. Mildmay’s Case, 1 Rep. 175; Marvin v. Maynard, Cro. El. 419; Pennyman v. Rabanks, Cro. Eliz. 427; Newman v. Zachary, Al. 3; Rowe v. Roach, 1 M. & S. 304; Bignell v. Buzzard, 3 H. & N. 217; Webb v. Cecil, 9 B. Mon. 198; Ross v. Pynes, Wythe, 71, 3 Call, 490.

In Rowe v. Roach, supra, Lord Ellenborough said, p. 310: “The law makes no allowance for the slander of strangers, whatever it may do in behalf of those who have a real title, or a claim of title. Rei immiscet se alienæ is the good sense which must govern this case. Here the defendant is a stranger himself, and shows no authority from those who are parties in interest.”

Where defendant has some interest, it is enough if he actually believes what he says against plaintiff’s title.

Gerard v. Dickenson, 4 Rep. 18 a, Cro. El. 196; Lovett v. Weller, 1 Rolle R. 409; Anon., Sty. 414; Pitt v. Donovan, 1 M. & S. 639; Smith v. Spooner, 3 Taunt. 246; Green v. Button, 2 C. M. & R. 707; Pater v. Baker, 3 C. B. 831; Watson v. Reynolds, M. & M. 1; Carr v. Duckett, 5 H. & N. 783; Atkins v. Perrin, 3 F. & F. 179; Brook v. Rawl, 4 Ex. 521; Burnett v. Tak, 45 L. T. Rep. 743; Steward v. Young, L. R. 5 C. P. 122; Wren v. Weild, L. R. 4 Q. B. 730; Hart v. Wall, 2 C. P. D. 146 (semble); Baker v. Piper, 2 T. L. R. 733; Dicks v. Brooks, 15 Ch. D. 22; Halsey v. Brotherhood, 19 Ch. D. 386; Royal Co. v. Wright, 18 Pat. Cas. Rep. 95; Dunlop Co. v. Talbot, 20 T. L. R. 579; Boulton v. Shields, 3 Up. Can. Q. B. 21; Hill v. Ward, 13 Ala. 310; McDaniel v. Baca, 2 Cal. 326; Thompson v. White, 70 Cal. 135; Reid v. McLendon, 44 Ga. 156; Van Tuyl v. Riner, 3 Ill. App. 556; Stark v. Chitwood, 5 Kan. 141; Gent v. Lynch, 23 Md. 58; Swan v. Tappan, 5 Cush. 104; Walkley v. Bostwick, 49 Mich. 374; Chesebro v. Powers, 78 Mich. 472; Meyrose v. Adams, 12 Mo. App. 329; Butts v. Long, 106 Mo. App. 313; Andrew v. Deshler, 45 N. J. Law, 167; Kendall v. Stone, 5 N. Y. 14; Like v. McKinstry, 4 Keyes, 397, 3 Abb. App. 62, 41 Barb. 186; Hovey v. Rubber Co., 57 N. Y. 119; Dodge v. Colby, 37 Hun, 515, 108 N. Y. 445; Lovell Co. v. Houghton, 116 N. Y. 520; Hastings v. Giles Co., 51 Hun, 364, 121 N. Y. 674; Cornwell v. Parke, 52 Hun, 596, 123 N. Y. 657; McElwee v. Blackwell, 94 N. C. 261; Harriss v. Sneeden, 101 N. C. 273.

Compare Virtue v. Creamery Mfg. Co., 123 Minn. 17.

As to the requirement of “malice,” see Coffman v. Henderson, 9 Ala. App. 553; Fearon v. Fodera, 169 Cal. 370; Long v. Rucker, 166 Mo. App. 572; Potosi Zinc Co. v. Mahoney, 36 Nev. 390; Fant v. Sullivan, (Tex. Civ. App.) 152 S. W. 515.

See Smith, Disparagement of Property, 13 Columbia Law Rev. 13, 121.

[540]. Only the opinion of the court is given.

[541]. Tasburgh v. Day, Cro. Jac. 484; Gresham v. Grinsley, Yelv. 88; Sneade v. Badley, 3 Bulst. 74, 1 Roll. 244; Law v. Harwood, Cro. Car. 140, W. Jones, 196; Cane v. Golding, Sty. 169, 176; Manning v. Avery, 3 Keb. 153; Haddan v. Lott, 15 C. B. 411; Evans v. Harlow, 5 Q. B. 624; Ashford v. Choate, 20 Up. Can; C. P. 471; Collins v. Whitehead, 34 Fed. 121; Ebersole v. Fields, 181 Ala. 421; Stark v. Chitwood, 5 Kan. 141; Continental Co. v. Little, 135 Ky. 618; Swan v. Tappan, 5 Cush. 104; Gott v. Pulsifer, 122 Mass. 235; Dooling v. Budget Co., 144 Mass. 258; Boynton v. Shaw Co., 146 Mass. 219; Wilson v. Dubois, 35 Minn. 471; Tobias v. Harland, 4 Wend. 537; Madison Church v. Madison Church, 26 How. Pr. 72; Linden v. Graham, 1 Duer, 670; Bailey v. Dean, 5 Barb. 297; Kendall v. Stone, 5 N. Y. 14; Kennedy v. Press Co., 41 Hun, 422; Childs v. Tuttle, 48 Hun, 228; Maglio v. N. Y. Co., 93 App. Div. 546; Felt v. Germania Life Ins. Co., 149 App. Div. 14; Witteman Bros. v. Witteman Co., 88 Misc. 266; McGuinness v. Hargiss, 56 Wash. 162 Accord.

Compare Fleming v. McDonald, 230 Pa. St. 75.

The breach of a contract by a third person is special damage. Green v. Button, 2 C. M. & R. 707. But see contra, Kendall v. Stone, 5 N. Y. 14; Brentman v. Note, 3 N. Y. Sup. 420 (N. Y. City Court).

[542]. The arguments and the concurring opinions of Lords Watson, Macnaghten, Morris, and Shand are omitted.

[543]. Disparagement of goods. In the case cited it was held actionable to say falsely that plaintiffs’ manure was inferior to defendants’ if done without legal excuse. Young v. Macrae, 3 B. & S. 264; Alcott v. Millar, 21 T. L. R. 30; Dooling v. Budget Co., 144 Mass. 258 (semble); Boynton v. Shaw Co., 146 Mass. 219; Wilson v. Dubois, 35 Minn. 471; Wier v. Allen, 51 N. H. 177; Snow v. Judson, 38 Barb. 210; Kennedy v. Press Co., 41 Hun, 422 (semble); Paull v. Halferty, 63 Pa. St. 46; Young v. Geiske, 209 Pa. St. 515 Accord.

[544]. Lyne v. Nicholls, 23 T. L. R. 86; Barrett v. Associated Newspapers, 23 T. L. R. 666; Burkett v. Griffith, 90 Cal. 532 Accord.

Compare Marlin Fire Arms Co. v. Shields, 171 N. Y. 384.

[545]. Prestolite Co. v. Heiden, (C. C. A.) 219 Fed. 845; Zittlosen Mfg. Co. v. Boss, (C. C. A.) 219 Fed. 887; Coca-Cola Co. v. Butler, 229 Fed. 224; Hartzler v. Goshen Ladder Co., 55 Ind. App. 455; National Biscuit Co. v. Pacific Coast Biscuit Co., 83 N. J. Eq. 369; Sanford Iron Works v. Enterprise Machine Works, 130 Tenn. 669; Pacific Coast Milk Co. v. Frye, 85 Wash. 133 Accord. In March v. Billings, 7 Cush. 322, under similar circumstances, the plaintiff recovered in an action at law.

See also Coffin, Fraud as an Element of Unfair Competition, 16 Harvard Law Rev. 272; Wyman, Competition and the Law, 15 Harvard Law Rev. 427; Cox, The Prevention of Unfair Competition in Business, 5 Harvard Law Rev. 139; Cushing, On Certain Cases Analogous to Trade Marks, 4 Harvard Law Rev. 321.

Misleading similarity. Hanover Milling Co. v. Metcalf, 240 U. S. 403; McDonald Mfg. Co. v. Mueller Mfg. Co., 183 Fed. 972; British American Tobacco Co. v. British American Cigar Stores Co., (C. C. A.) 211 Fed. 933; Hiram Walker & Sons v. Grubman, 224 Fed. 725; Jenkins v. Kelly & Jones Co., (C. C. A.) 227 Fed. 211; Jacoway v. Young, (C. C. A.) 228 Fed. 630; Van Zile v. Norub Mfg. Co., 228 Fed. 829; Moline Plow Co. v. Omaha Stores Co., (C. C. A.) 235 Fed. 519; Boston Shoe Shop v. McBroom Shoe Shop, 196 Ala. 262; Italian Swiss Colony v. Italian Vineyard Co., 158 Cal. 252; Dunston v. Los Angeles Van & Storage Co., 165 Cal. 89; Modesto Creamery v. Stanislaus Creamery Co., 168 Cal. 289; Motor Accessories Co. v. Marshalltown Mfg. Co., 167 Ia. 202; Bonnie & Co. v. Bonnie Bros., 160 Ky. 487; Crutcher v. Starks, 161 Ky. 690; George G. Fox Co. v. Best Baking Co., 209 Mass. 251; C. A. Briggs & Co. v. National Wafer Co., 215 Mass. 100; Grocers’ Supply Co. v. Dupuis, 219 Mass. 576; Rodseth v. Northwestern Marble Works, 129 Minn. 472; Rubber & Celluloid Co. v. Rubber Bound Brush Co., 81 N. J. Eq. 419, 519; Westcott Chuck Co. v. Oneida Chuck Co., 199 N. Y. 247; World’s Dispensary Ass’n v. Pierce, 203 N. Y. 419; Material Men’s Ass’n v. New York Material Men’s Ass’n, 169 App. Div. 843; German American Button Co. v. Heymsfeld, 170 App. Div. 416; Collier v. Jones, 66 Misc. 97; Frohman v. William Morris, 68 Misc. 461; Elbs v. Rochester Egg Carrier Co., 134 N. Y. Supp. 979; Columbia Engineering Works v. Mallory, 75 Or. 542; Rosenburg v. Fremont Undertaking Co., 63 Wash. 52; J. I. Case Plow Works v. J. I. Case Machine Co., 162 Wis. 185.

Use of one’s own name, see L. E. Waterman Co. v. Modern Pen Co., 235 U. S. 88; Borden Ice Cream Co. v. Borden’s Consolidated Milk Co., (C. C. A.) 201 Fed. 510; Deister Concentrator Co. v. Deister Machine Co., 63 Ind. App. 412; C. H. Batchelder Co. v. Batchelder, 220 Mass. 42; Zagier v. Zagier, 167 N. C. 616.

Where defendant passes off his product as plaintiff’s, recovery is allowed without proof of actual damage. Blofeld v. Payne, 4 B. & A. 410; Singleton v. Bolton, 3 Doug. 293 (semble); Sykes v. Sykes, 3 B. & C. 541; Morison v. Salmon, 2 M. & G. 385; Crawshay v. Thompson, 4 M. & G. 357 (semble); Rodgers v. Nowill, 5 C. B. 109; Forster Co. v. Cutter Co., 211 Mass. 219. Compare Glendon Co. v. Uhler, 75 Pa. St. 467.

[546]. The learned judge here discussed McDonald v. Snelling, 14 All. 290, and Rigby v. Hewitt, 5 Ex. 240, and cited 2 Pars. Cont. 456; Dixon v. Fawcus, 30 L. J. Q. B. 137; Tarleton v. McGawley, Peake, 270; Bell v. Midland Co., 10 C. B. N. S. 307 Keeble v. Hickeringill, 11 East, 574, n.

[547]. Defendant put out an envelope, with the word “telegram” conspicuously printed thereon, similar to that used by plaintiff, a telegraph company, to be used for advertising circulars. Plaintiff claimed that it tended to make its patrons think plaintiff was imposing on them by allowing advertisers to use its facilities in order to gain their attention and so injured its business. An injunction was denied. Postal Telegraph Co. v. Livermore & Knight Co., 188 Fed. 696.

In Riding v. Smith, 1 Ex. D. 91, plaintiff sued for injury to his business due to defendant’s charging his wife with adultery, by reason whereof customers ceased to deal with him.

In Hamon v. Falle, 4 App. Cas. 247, an officer of an insurance company notified a shipowner that the company would not insure the ship if plaintiff was employed as master. Defendant set up that he honestly believed plaintiff unfit. See also Bowen v. Matheson, 14 All. 499.

In Morasse v. Brochu, 151 Mass. 567, defendant in a sermon warned his congregation against a physician who had been excommunicated for remarrying after divorce.

[548]. Only the opinion of the court is given.

[549]. The opinion of the court on this point is omitted. The defendant’s contention was not sustained.

[550]. Only the opinion is given.

[551]. “It is contended that the amount of the plaintiff’s loss is so entirely a matter of pure chance as to be incapable of assessment. I cannot for this purpose draw any distinction between a chance and a probability. In the Oxford English Dictionary one of the definitions of ‘chance’ is ‘a possibility or probability of anything happening, as distinct from a certainty,’ and a citation is given from Reid’s Intellectual Powers, ‘The doctrine of chances is a branch of mathematics little more than an hundred years old.’ The two words ‘chance’ and ‘probability’ may be treated as being practically interchangeable, though it may be that the one is somewhat less definite than the other.... It is obvious, of course, that the chance or probability may in a given case be so slender that a jury could not properly give more than nominal damages, say one shilling; if they had done so in the present case, it would have been entirely a question for them, and this Court could not have interfered. But in the present competition we find chance upon chance, two of which the plaintiff had succeeded in passing. From being one of six thousand she had become a member of a class of fifty, and, as I understand it, was first in her particular division by the votes of readers of the paper; out of those fifty there were to be selected twelve prize-winners; it is obvious that her chances were then far greater and more easily assessable than when she was only one of the original six thousand. If the plaintiff had never been selected at all, the case would have been very different; but that was not the case. In my opinion the existence of a contingency, which is dependent on the volition of a third person, is not enough to justify us in saying that the damages are incapable of assessment.” Farwell, L. J., in Chaplin v. Hicks, [1911] 2 K. B. 786, 798.

[552]. Adler v. Fenton, 24 How. 407; Findlay v. McAllister, 113 U. S. 104 (semble); Austin v. Barrows, 41 Conn. 287; Green v. Kimble, 6 Blackf. 552; Moody v. Burton, 27 Me. 427; Lamb v. Stone, 11 Pick. 527; Wellington v. Small, 3 Cush. 145; Security Bank v. Reger, (Okl.) 151 Pac. 1170; LeGierse v. Kellum, 66 Tex. 242 Accord.

Penrod v. Mitchell, 8 S. & R. 522; Penrod v. Morrison, 2 Pen. & W. 126; Mott v. Danforth, 6 Watts, 305; Hopkins v. Beebe, 26 Pa. St. 85, 87; Kelsey v. Murphy, 26 Pa. St. 78, 84; Collins v. Cronin, 117 Pa. St. 35, 45 Contra. See note in 47 L. R. A. 433–440.

In Smith v. Tonstall, Carthew, 3, defendant was held liable for conspiracy with plaintiff’s debtor on scire facias to procure a false judgment and anticipate plaintiff by execution thereon and carrying off of all the debtor’s property. Findlay v. McAllister, 113 U. S. 104 (semble); Adams v. Paige, 7 Pick. 541 Accord. See Pullen v. Headberg, 53 Col. 502.

[553]. Only the opinion is given, and it is somewhat abridged.

[554]. In Randall v. Hazelton, 12 All. 412, plaintiff, a mortgagor, had a gratuitous promise from the mortgagee not to foreclose without notice. In order to obtain the property, defendant falsely told the mortgagee that plaintiff wished the mortgage assigned to defendant and obtained an assignment and foreclosed without plaintiff’s knowledge.

[555]. Statement, and part of opinion, omitted.

[556]. In Rice v. Manley, 66 N. Y. 82, plaintiff had a contract with a third person for a cheese. By means of a forged telegram defendant procured the third person to sell to him instead. The contract was within the Statute of Frauds, but it was found that the third person would have performed but for defendant’s act.

[557]. The arguments of counsel are omitted.

[558]. See American Ins. Co. v. France, 111 Ill. App. 382; Davis v. New England Pub. Co., 203 Mass. 470; Haney Mfg. Co. v. Perkins, 78 Mich. 1; Benton v. Pratt, 2 Wend. 385.

“[If, from the nature of the case, the amount of damage caused to a plaintiff by the tort of a defendant cannot be estimated with certainty, shall the defendant therefore be exonerated from liability?] Certainty, it is true, would thus be attained, but it would be the certainty of injustice.” Christiancy, J., in Allison v. Chandler, 11 Michigan, 542, 555. See also pp. 553–556.

[559]. Standard Oil Co. v. Doyle, 118 Ky. 662; Dickson v. Dickson, 33 La. Ann. 1261 Accord.

Threats of vexatious suits against customers: Emack v. Kane, 34 Fed. 46; Lewin v. Welsbach Light Co., 81 Fed. 904; Farquhar Co. v. National Harrow Co., 99 Fed. 160; Adriance v. National Harrow Co., 121 Fed. 827, 98 Fed. 118; Dittgen v. Racine Paper Goods Co., 164 Fed. 85; Electric Renovator Co. v. Vacuum Cleaner Co., 189 Fed. 754; Atlas Underwear Co. v. Cooper Underwear Co., 210 Fed. 347; Shoemaker v. South Bend Spark Arrester Co., 135 Ind. 471; Pratt Food Co. v. Bird, 148 Mich. 631.

[560]. St. Johnsbury Co. v. Hunt, 55 Vt. 570 (arrest of plaintiff’s engineer on a malicious and baseless charge, whereby the running of plaintiff’s train was delayed) Accord.

[561]. Gunter v. Astor, 4 Moore, 12; Hartley v. Cummings, 5 C. B. 247; Jones v. Blocker, 43 Ga. 331; Wharton v. Jossey, 46 Ga. 578; Lee v. West, 47 Ga. 311 (semble); Smith v. Goodman, 75 Ga. 198; Bundy v. Dodson, 28 Ind. 295; Jones v. Tevis, 4 Litt. 25; Tyson v. Ewing, 3 J. J. Marsh, 185; Carew v. Rutherford, 106 Mass. 1; Bixby v. Dunlap, 56 N. H. 456; Stille v. Jenkins, 3 Green, (N. J.) 302; Scidmore v. Smith, 13 John. 322; Covert v. Gray, 34 How. Pr. 450; Johnston Co. v. Meinhardt, 9 Abb. N. C. 393; Stout v. Woody, 63 N. C. 37; Haskins v. Royster, 70 N. C. 601; Robinson v. Culp, 3 Brev. 302; Daniel v. Swearengen, 6 S. C. 297; Fowler v. Stonum, 6 Tex. 60; Thacker Co. v. Burke, 59 W. Va. 253; Cowper v. Macfarlane, 6 Sess. Cas., 4th Series, 683 Accord.

See, also, Martinez v. Gerber, 3 M. & G. 88.

An action will lie against one who induces a servant to violate his duty not to communicate the trade secrets of his employer. Jones v. Westervelt, 7 Cow. 445; Kerr v. Roxburgh, 3 Murr. (Scotland) 126; Roxburgh v. McArthur, 3 Sess. Cas., 2d Series, 556.

[562]. In Blake v. Lanyon, 6 T. R. 221, a journeyman, while his work was unfinished, left plaintiff and hired with defendant, who then did not know the facts. Defendant was held liable for retaining the journeyman after notice. Fawcet v. Beavres, 2 Lev. 63; Pilkington v. Scott, 15 M. & W. 657; Kennedy v. McArthur, 5 Ala. 151; Dacy v. Gay, 16 Ga. 203; Everett v. Sherfey, 1 Ia. 356; Stowe v. Heywood, 7 All. 118; Sargent v. Mathewson, 38 N. H. 54; Dickson v. Taylor, 1 Murr. (Scotland) 141 Accord. Adams v. Bafeald, 1 Leon. 240; Caldwell v. O’Neal, 117 Ga. 775 (if contract is oral only) Contra.

It was said also that there was no liability for the hiring of plaintiff’s journeyman without notice of the facts. Eades v. Vandeput, 5 East, 39 n. (a); Sherwood v. Hall, 3 Sumn. 127; Ferguson v. Tucker, 2 Har. & G. 182; Butterfield v. Ashley, 6 Cush. 249; Sargent v. Mathewson, 38 N. H. 54; Clark v. Clark, 63 N. J. Law, 1; Stuart v. Simpson, 1 Wend. 376; Caughey v. Smith, 47 N. Y. 244; Bell v. Lakin, 1 McMull. 364; Conant v. Raymond, 2 Aik. 243 Accord.

[563]. The arguments of counsel are omitted.

[564]. “The rule which governs the numerous cases upon this subject is, that where the proximate effect of the criminal connection is an incapacity to labor, by reason of which the master loses the services of his servant, such loss of service is deemed to be the immediate effect of the connection, and entitles the master to his action. The same principle which gives a master an action where the connection causes pregnancy or sexual disease applies to all cases where the proximate consequence of the criminal act is a loss of health resulting in a loss of service. There may be cases in which the seduction, without producing pregnancy or sexual disease, causes bodily injury, impairing the health of the servant, and resulting in a loss of services to her master. So the criminal connection may be accomplished under such circumstances, as, for instance, of violence or fraud, that its proximate effect is mental distress or disease, impairing her health and destroying her capacity to labor. In either of these cases the master may maintain an action, because the loss of services is immediately caused by the connection, as much as in cases of pregnancy or sexual disease. Vanhorn v. Freeman, 1 Halst. 322. But if the loss of health is caused by mental suffering, which is not the consequence of the seduction, but is produced by subsequent intervening causes, such as abandonment by the seducer, shame resulting from exposure, or other similar causes, the loss of services is too remote a consequence of the criminal act, and the action cannot be maintained. Boyle v. Brandon, 13 M. & W. 738; Knight v. Wilcox, 14 N. Y. 413.

“In the case at bar, as the ruling appears to have been general that the action could not be maintained unless pregnancy or sexual disease was proved, we think a new trial should be granted.” Morton, J., in Abrahams v. Kidney, 104 Mass. 222. See to the same effect Blagge v. Ilsley, 127 Mass. 191; Clark v. Clark, 63 N. J. Law, 1; White v. Nellis, 31 N. Y. 405; Ingerson v. Miller, 47 Barb. 47.

[565]. The father can maintain no action in such a case: Goodwin v. Thompson, 2 Greene, 329; Jones v. Tevis, 4 Litt. 25; Hervey v. Moseley, 7 Gray, 479; Beard v. Holland, 59 Miss. 161, 164; Wilkinson v. Dellinger, 126 N. C. 462. Unless the daughter was induced to marry the defendant by the latter’s fraud. Hills v. Hobert, 2 Root, 48; Goodwin v. Thompson, supra.

[566]. A part of the argument and the concurring opinion of Montague Smith, J., with which Keating, J., agreed, are omitted.

[567]. Whether it is an excess of fair competition to induce a servant at will to leave the plaintiff, and enter the service of the defendant, cannot be said to be definitely settled. In Salter v. Howard, 43 Ga. 601, the plaintiff prevailed; but in Campbell v. Cooper, 34 N. H. 49, the defendant was successful. The other cases commonly cited for the plaintiff are distinguishable. In Sykes v. Dixon, 9 A. & E. 693, and Peters v. Lord, 18 Conn. 337, the servant had left the plaintiff of his own head before entering the service of the defendant. In Keane v. Boycott, 2 H. Bl. 512, the defendant, a recruiting officer, officiously induced the servant to leave the plaintiff, in order to enlist as a soldier. In Speight v. Oliviera, 2 Stark. 493; Morgan v. Molony, 7 Ir. L. R. N. S. 101, 240; Ball v. Bruce, 21 Ill. 161; and Noice v. Brown, 39 N. J. Law, 569, as in the principal case, the enticement was for an immoral purpose. In Cox v. Muncey, 6 C. B. N. S. 375, a father induced an apprentice at will to leave the master, but the motive of the father does not appear.

“[Keane v. Boycott, 2 H. Bl. 512] seems contrary to the general principle and is certainly opposed to the decision of the Court of Appeals in DeFrancesco v. Barnum, 45 Ch. D. 430. The defendant there had enticed away an apprentice of the plaintiff. But the indenture contained unreasonable stipulations, and it was held that it might be avoided by the apprentice, and that it was not unlawful for the defendant to persuade the apprentice to do that which was lawful. It is different, however, if malice, force or fraud be used to take or decoy the servant away. In that case the master has a right of action, even though the servant be under no binding obligation. Per Willes, J., Evans v. Walton, L. R. 2 Com. PL., pp. 621–622.” Clerk and Lindsell, Torts, 5 ed. 227.

To induce a servant who is under contract with the plaintiff to leave the latter at the expiration of the term of service, and to enter the defendant’s service, is no more than lawful competition. Nichol v. Martyn, 2 Esp. 732; Boston Manufactory v. Binney, 4 Pick. 425.

[568]. The statement of the case and the arguments of counsel are omitted.

[569]. The learned judge here discussed and approved of Blake v. Lanyon, 6 T. R. 221.

[570]. The rest of the opinion on this point is omitted.

[571]. See note (4) to Skinner v. Gunton, 1 Wms. Saund. 230.—Reporter’s note.

[572]. Only the opinion of Coleridge, J., on this point is given. It is now generally admitted that this learned judge, although wrong on this point, was right in maintaining that the actress was not a servant.

[573]. William Hankford, Justice of the Common Pleas in 1398, afterwards, in 1414 (1 H. 5), Chief Justice of England.—Reporter’s note.

[574]. Cattle v. Stockton Co., L. R. 10 Q. B. 453, 458 (semble); Angle v. Chicago R. Co., 151 U. S. 1; Bitterman v. Louisville R. Co., 207 U. S. 205, 222–23; Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, 394 (semble); Heaton Co. v. Dick, 55 Fed. 23, 52 Fed. 667; Heath v. American Book Co., 97 Fed. 533; Tubular Co. v. Exeter Co., 159 Fed. 824; Motley v. Detroit Co., 161 Fed. 389; Chipley v. Atkinson, 23 Fla. 206; Doremus v. Hennessy, 176 Ill. 608; Heywood v. Tillson, 75 Me. 225, 236 (semble); Knickerbocker Ice Co. v. Gardiner Dairy Co., 107 Md. 556; Walker v. Cronin, 107 Mass. 555; Beekman v. Marsters, 195 Mass. 205; Joyce v. Great Northern R. Co., 100 Minn. 225; Mealey v. Bemidji Lumber Co., 118 Minn. 427; Lally v. Cantwell, 30 Mo. App. 524; Van Horn v. Van Horn, 52 N. J. Law, 284; Haskins v. Royster, 70 N. C. 601; Jones v. Stanly, 76 N. C. 355; Flaccus v. Smith, 199 Pa. St. 128; Delz v. Winfree, 80 Tex. 400, 405; Raymond v. Yarrington, 96 Tex. 443; Brown Co. v. Indiana Stove Works, 96 Tex. 453; Duffies v. Duffies, 76 Wis. 374, 377 (semble); Martens v. Reilly, 109 Wis. 464; Hewitt v. Ontario Co., 44 Up. Can. Q. B. 287 Accord.

Boyson v. Thorn, 98 Cal. 578; Barron v. Collins, 49 Ga. 580 (semble); Chambers v. Baldwin, 91 Ky. 121; Bourlier v. Macauley, 91 Ky. 135; Kline v. Eubanks, 109 La. 241 (semble); Ashley v. Dixon, 48 N. Y. 430; De Jong v. Behrman, 148 App. Div. 37; Laskey Feature Play Co. v. Fox, 93 Misc. 364; Swain v. Johnson, 151 N. C. 93; Sleeper v. Baker, 22 N. D. 386 Contra.

It was decided before the case of Lumley v. Gye that an action for slander of title was maintainable where the only special damage laid was the breach by a third person of his contract with the plaintiff. Green v. Button, 2 C. M. & R. 707. But see, contra, Kendall v. Stone, 5 N. Y. 14; Brentman v. Note, 3 N. Y. Sup. 420 (N. Y. City Court).

So an action would doubtless lie for defamatory words, not actionable per se, which induced a third person to break his contract to marry the plaintiff. But compare Davis v. Condit, 124 Minn. 365 (seduction of plaintiff’s fiancée).

As to justification, see Leonard v. Whetstone, 34 Ind. App. 383.

On the general subject, see also Sweeney v. Smith, 167 Fed. 385; Mahoney v. Roberts, 86 Ark. 130; Citizens’ Light, &c. Co. v. Montgomery Light, &c. Co., 171 Fed. 553, 560, 561; McGurk v. Cronenwett, 199 Mass. 457; Globe Ins. Co. v. Fireman’s Ins. Co., 97 Miss. 148; Biggers v. Matthews, 147 N. C. 299; Thacker Coal Co. v. Burke, 59 W. Va. 253; Huffcutt, Interference with Contracts and Business in New York, 18 Harvard Law Rev. 423.

[575]. The statement of facts and the dissenting opinion of Lord Coleridge, C. J., are omitted.

[576]. “That this was a wrongful interference on the part of the Omaha Company, and that it resulted directly in loss to the contractor and to the Portage Company, is apparent. It is not an answer to say that there was no certainty that the contractor would have completed his contract, and so earned these lands for the Portage Company. If such a defence were tolerated, it would always be an answer in case of any wrongful interference with the performance of a contract, for there is always that lack of certainty. It is enough that there should be, as there was here, a reasonable assurance, considering all the surroundings, that the contract would be performed in the manner and within the time stipulated, and so performed as to secure the land to the company.

“It certainly does not lie in the mouth of a wrong-doer, in the face of such probabilities as attend this case, to say that perhaps the contract would not have been completed even if no interference had been had, and that, therefore, there being no certainty of the loss, there is no liability.” Brewer, J., in Angle v. Chicago R. Co., 151 U. S. 1, 12.

[577]. Statement abridged. Arguments omitted; also part of opinions.

[578]. As to the distinction between intent and motive, see Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev. 253, 256–259.

[579]. Compare Tunstall v. Sterns Coal Co., (C. C. A.) 192 Fed. 808. Section 3 of the Trade Disputes Act, 6 Edward 7, Chap. 47, enacted Dec. 21, 1906, is as follows:—

“Sect. 3. An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills.”

See Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev. 253, 345, 429.

[580]. Only the opinion of Bowen, L. J., is given. Fry, L. J., concurred, but Lord Esher, M. R., dissented. The decision was afterwards affirmed in the House of Lords, [1892] A. C. 25.

[581]. Payne v. Railroad Co., 13 Lea, 507 (Freeman and Turney, JJ., dissenting); South Royalton Bank v. Suffolk Bank, 27 Vt. 505; Delz v. Winfree, 80 Tex. 400, 405 (semble) Accord. See Lough v. Outerbridge, 143 N. Y. 271.

[582]. Statement rewritten.

[583]. See Boggs v. Duncan Furniture Co., 163 Ia. 106; Rogers, Predatory Price Cutting as Unfair Trade, 27 Harvard Law Rev. 139.

[584]. The arguments are omitted.

[585]. In Holbrook v. Morrison, 214 Mass. 209, a land owner put a sign on her land reading, “For Sale. Best Offer From Colored Family.” Defendant wished to sell but was also moved by ill will toward plaintiffs, whose real estate business was seriously interfered with by the threatened sale. See Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411, 420; Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev. 429, 453, 455.

[586]. In this case, however, the means used by defendant involved trespasses and fraud. See American Waltham Watch Co. v. United States Watch Co., 173 Mass. 85.

[587]. See Faloon v. Schilling, 29 Kan. 292.

“Spite fence.” Malicious use of property to the injury of a neighbor was held not actionable in Capital Bank v. Henty, 7 A. C. 741, 766 (semble); Giller v. West, 162 Ind. 17; Brostrom v. Lauppe, 179 Mass. 315; Bordeaux v. Greene, 22 Mont. 254; Mahan v. Brown, 13 Wend. 261; Auburn Co. v. Douglass, 9 N. Y. 444 (semble); Pickard v. Collins, 23 Barb. 444; Levy v. Brothers, 4 Misc. 48; Letts v. Kessler, 54 Ohio St. 73; Koblegard v. Hale, 60 W. Va. 37; Metzger v. Hochrein, 107 Wis. 267.

Contra Norton v. Randolph, 176 Ala. 381; Burke v. Smith, 69 Mich. 380; Flaherty v. Moran, 81 Mich. 52; Kirkwood v. Finegan, 95 Mich. 543; Peek v. Roe, 110 Mich. 52; Barger v. Barringer, 151 N. C. 433. See Wilson v. Irwin, 144 Ky. 311; Metz v. Tierney, 13 N. M. 363; Smith v. Speed, 11 Okl. 95; Haverstick v. Sipe, 33 Pa. St. 368; Shell v. Kemmerer, 13 Phila. 502; McCorkle v. Driskell, (Tenn.) 60 S. W. 172.

Malicious diversion of percolating water was held to give no right of action in Corporation of Bradford v. Pickles, [1895] A. C. 587; Meeker v. East Orange, 76 N. J. Law, 435; Phelps v. Nowlen, 72 N. Y. 39; Chatfield v. Wilson, 28 Vt. 49; Huber v. Merkel, 117 Wis. 355.

Contra Chasemore v. Richards, 7 H. L. Cas. 349, 388 (semble); Roath v. Driscoll, 20 Conn. 533, 540–44 (semble); Chesley v. King, 74 Me. 164 (semble); Stevens v. Kelley, 78 Me. 445, 452; Greenleaf v. Francis, 18 Pick. 119 (semble); Swett v. Cutts, 50 N. H. 439, 447 (semble); Wyandot Club Co. v. Sells, 3 Ohio N. P. 210; Wheatley v. Baugh, 25 Pa. St. 528, 533 (semble); Haldeman v. Bruckhart, 45 Pa. St. 514 (semble); Lybe’s Appeal, 106 Pa. St. 626 (semble); Williams v. Laden, 161 Pa. St. 283 (semble); Miller v. Black Rock Co., 99 Va. 747 (semble).

But cases of this type are now coming to be treated on a different principle of waste or unreasonable use of water underlying neighboring tracts. Gagnon v. French Lick Hotel Co., 163 Ind. 687; Barclay v. Abraham, 121 Ia. 619; Stillwater Water Co. v. Farmer, 89 Minn. 58; Springfield Waterworks Co. v. Jenkins, 62 Mo. App. 74.

(1) Has the owner of land the same ownership and control of percolating water (water passing, or filtering, through the ground beneath the surface of the earth, without flowing in definite channels), that he has of the soil, e. g., the sand and the rocks?

Or (2) has he only a limited and qualified right in the percolating water; a right of reasonable user limited by the correlative rights of his neighbors?

On those questions there is, in recent cases, a conflict of authority. For illustrative cases endorsing the first theory, see Acton v. Blundell, 12 M. & W. 324; Mayor of Bradford v. Pickles, [1895] A. C. 587; Meeker v. East Orange, 76 N. J. Law, 435. For illustrative cases favoring the second theory, see Bassett v. Salisbury Mfg. Co., 43 N. H. 569 (where the question related to the right of the defendant to prevent water percolating under the surface of plaintiff’s land from passing off through defendant’s land); Katz v. Walkinshaw, 141 Cal. 116, 140, 141.

We are concerned here only to point out how the adoption of one or the other of the above conflicting views may affect the materiality of the landowner’s motive in the use of percolating water.

If the first theory is adopted, then, in some jurisdictions, the landowner would not be held liable, even though actuated by bad motive (Mayor of Bradford v. Pickles, [1895] A. C. 587); and, in all other jurisdictions, he would be liable only when, and because, he was actuated by bad motive.

But if the second theory is adopted, the landowner might frequently be held liable, irrespective of motive. On the second theory percolating water might be regarded as, in a certain sense, the common property of the adjoining owners (bearing some analogy to an underground lake); and it would be held that each owner is entitled to only a reasonable share, and is entitled to use that share only for certain purposes. See 3 Farnham, Waters, § 935. Upon this view an owner who uses more than his share, or who uses it for purposes outside those legally allowable, would be liable entirely irrespective of motive. “Later American cases,” says Professor Huffcut, “transfer the emphasis from the showing of ‘malice’ to a showing of ‘unreasonable user,’ which may or may not be accompanied by malice.” 13 Yale Law Journal, 222.

We may add that if bad motive should not be held, in itself, a substantive ground of liability, yet the existence of bad motive might be a piece of evidence bearing upon the question of reasonable user. User for the sole purpose of gratifying ill will might not be deemed reasonable.

On the general question of liability for malevolent acts in reference to percolating water, see, Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411, 414–415; Huffcut, Percolating Waters: the Rule of Reasonable User, 13 Yale Law Journ. 222.

[588]. Statements abridged. Portions of opinion omitted.

[589]. In Rideout v. Knox, 148 Mass. 368, where a similar statute was held constitutional, it was held error to charge that defendant could not justify building the fence unless his sole motive was a legitimate use; malice must be the dominant motive. See also Ingwerson v. Barry, 118 Cal. 342; Gallagher v. Dodge, 48 Conn. 387; Holmes v. Fuller, 68 Vt. 207; Karasek v. Peier, 22 Wash. 419; Jones v. Williams, 56 Wash. 588; Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411, 414–415.

[590]. The rest of the opinion is omitted. This case was followed in Carrington v. Taylor, 11 East, 571. See Lamprey v. Danz, 86 Minn. 317; Whittaker v. Stangvick, 100 Minn. 386; Meredith v. Triple Island Gun Club, 113 Va. 80.

[591]. Only the opinion of Bramwell, B., is given. Pollock, C. B., Martin and Pigott, BB., concurred.

[592]. Statement rewritten. Only so much of the case is given as relates to a single point.

[593]. Statement rewritten. Arguments omitted. Some of the opinions are entirely omitted, and none are given in full.

[594]. ... “The litigants are members of two rival associations of workingmen, registered under the Trade Unions Act of 1871.”... Lord Watson, [1898] A. C., p. 90. “It is not a dispute between employers and employed,—between capital and labor,—but rather one between the members of one trade union and of another trade union.”... Lord Ashbourne, ibid. p. 109. “Each party had the financial support of their union.” Lord Macnaghten, p. 147.

[595]. As to the terms of the ironworkers’ employment, see Lord Watson, pp. 90, 99, and Lord Herschell, p. 130.

[596]. See Lord Macnaghten, p. 146.

[597]. It was held, both by Kennedy, J., and by the Court of Appeal, that Jackson and Knight were not liable. Upon this branch of the case there was no appeal to the House of Lords.

[598]. See Lord Macnaghten, p. 148.

[599]. The statement here given is compiled from extracts recited in the opinions of Lord Shand, p. 162, Lord Halsbury, p. 82, and Lord Macnaghten, p. 149.

[600]. See Veeder, Advisory Opinions of the Judges in England, 13 Harv. Law Rev. 358.

[601]. ... “There is no ground for even a suggestion that the defendant’s acts were due to competition in trade or employment. There could be no competition between the two sets of men in the circumstances under which they were then working, the one at wood, the other at iron only; and even if they were competing, the plaintiffs were working well within their right.” Hawkins, J., p. 23. “Now, although according to the principles of the Mogul Case the action of Allen might have been justified on the principles of trade competition, if it had been confined to the time when the respondents were doing ironwork, and were therefore acting in competition with the boilermakers, it appears to me that as soon as he overstepped those limits, and induced their employers to dismiss them by way of punishment, his action was without just cause or excuse, and, consequently, malicious within the legal meaning of that word.” Cave, J., p. 37. “This action was not an effort, by competition, to enable the boilermakers to get the work instead, but to punish the plaintiffs by causing the employment of other shipwrights in their room.” Lord Ashbourne, p. 111.

[602]. German Civil Code, §§ 226, 826.

226. The exercise of a right is not permitted, when its sole object is to injure another.

826. Whoever intentionally inflicts damage upon another in a morally reprehensible manner is bound to compensate the other for the damage.

See also Digest, xxxix, 3, 1, § 12, xxxix, 3, 2, § 9; L. 17, 55; Domat, Civil Law (Cushing’s ed.) § 158; Erskine, Institutes of the Law of Scotland, Bk. II, tit. 1, § 2; Bell, Principles of the Law of Scotland, § 966; Planiol, Traité Elémentaire de droit civil, (4 ed.), II, §§ 870–72; Windscheid, Lehrbuch des Pandektenrechts, I, § 121; Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411; Walton, Motive as an Element in Torts in the Common and in the Civil Law, 22 Harvard Law Rev. 349.

[603]. Some opinions are omitted. None are given in full. Arguments omitted.

[604]. Read by Lord Davey in Lord Lindley’s absence.

[605]. [1895] 2 Q. B. 22, 23; [1898] A. C. 3.

[606]. [1898] A. C. p. 19, Lord Watson; p. 115, Lord Herschell; pp. 147–150, Lord Macnaghten; pp. 161, 165, Lord Shand; p. 175, Lord Davey; p. 178, Lord James.

[607]. England, Trade Disputes Act, 1906, 6 Ed. 7, c. 47.

1.—The following paragraph shall be added as a new paragraph after the first paragraph of section three of the Conspiracy and Protection of Property Act, 1875:—

“An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable.”

2.—(1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.

(2) Section seven of the Conspiracy and Protection of Property Act, 1875, is hereby repealed from “attending at or near” to the end of the section.

3.—An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills.

4.—(1) An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court.

(2) Nothing in this section shall affect the liability of the trustees of a trade union to be sued in the events provided for by the Trades Union Act, 1871, section nine, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute.

5.—(1) This Act may be cited as the Trade Disputes Act, 1906, and the Trade Union Acts, 1871 and 1876, and this Act may be cited together as the Trade Union Acts, 1871 to 1906.

(2) In this Act the expression “trade union” has the same meaning as in the Trade Union Acts, 1871 and 1876, and shall include any combination as therein defined, notwithstanding that such combination may be the branch of a trade union.

(3) In this Act and in the Conspiracy and Protection of Property Act, 1875, the expression “trade dispute” means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labor, of any person, and the expression “workmen” means all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises; and, in section three of the last-mentioned Act, the words “between employers and workmen” shall be repealed.

See Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev. 345, 351, note 3.

[608]. The statement has been abridged.

[609]. “The defendant associations had the absolute right to threaten to do that which they had the right to do.” Parker, C. J., in National Protective Association v. Cumming, 170 New York, 315, p. 329.

“It will be said that a man has the absolute right to threaten to do that which he has a right to do. Granted that what you may absolutely do you may absolutely threaten to do (give unqualified notice of your intention to do). But it does not follow that you may conditionally threaten to do it. The right to absolutely refuse to work and the right to conditionally refuse do not, as against third persons, i. e., persons other than the employer, stand to each other in the relation of the greater to the less. The former does not necessarily include the latter. They are distinct from each other; and the latter may sometimes be the more important and the more dangerous right of the two.” 20 Harvard Law Rev., p. 273.

“The right to quit an employment which is terminable at will may include a right to give absolute and unqualified notice of intention to leave.”

“It may also include, as against an employer, a right to annex any possible condition to an offer to work or to a threat to refrain from working. By ‘right as against an employer’ we mean that an employer could not maintain an action against a laborer for annexing such conditions. The employer is not legally damaged by such an offer. He is not bound to accept it. As between B and C, the person with whom B is directly dealing, it may be true that ‘the right to refuse to deal involves the right to name any terms which one pleases, and to refuse to deal except on these terms.’ C cannot maintain an action against B for insisting on unreasonable terms. But the terms or conditions annexed to an offer may relate to the offeree’s relations to a third person, and [if the offeree accepts and performs the conditions] that may raise a question whether such third person has any ground of complaint.”

“We think that the right to work or not to work does not include, as against third persons, the right to annex any possible condition to an offer to work or to a notice of intention to refrain from work. Suppose that B offers to work for C on condition that C commits a battery on A. Could B effectively deny that he instigated the commission of the battery? Could B escape liability to A on the ground that he was merely stating to C the conditions on which he was willing to exercise his right to labor or not to labor?” 20 Harvard Law Rev. 270–271.

The contrary view is open to several objections:—

“1. It assumes that, if certain conduct of B does not violate any legal right of C, it cannot infringe a legal right of A.

“2. It overlooks the distinction between unconditionally exercising a right, and offering to exercise it (or to refrain from exercising it) on condition that the offeree shall take action which is intended to produce (and does produce) damage to a third person.

“3. It assumes that one who intentionally instigates a second person to inflict damage on a third person can escape responsibility by putting the instigation in the form of a conditional offer to exercise, or to refrain from exercising, a right which he had against the second person.” 20 Harvard Law Rev. 269.

[610]. “In many of the cases the element of combination or conspiracy is found. If the act be lawful, the combination or conspiracy to commit it does not make the act unlawful; if it be unlawful, the combination to commit it may render its commission easier and may aggravate the injury; but it does not change the character of the act. The fact of combination is treated by the courts as of great evidentiary value in deciding the question of coercion or duress.” Burke, J., in Sumwalt Ice Co. v. Knickerbocker Ice Co., 114 Md. 403, 414.

“The gist of a civil action of this sort is not the conspiracy but the deceit or fraud causing damage to the plaintiff, the combination being charged merely for the purpose of fixing joint liability on the defendants.” Rugg, J., in New England Foundation Co. v. Reed, 209 Mass. 556.

See also Romer, L. J., in Giblan v. National Amalgamated Union, [1903] 2 K. B. 600, 619–620. But compare Henshaw, J., in Vallejo Ferry Co. v. Solano Club, 165 Cal. 255.

[611]. Intimidation. See Springhead Co. v. Riley, 6 Eq. 551 (intimidating placards); Southern R. Co. v. Machinists Union, 111 Fed. 49; Knudsen v. Benn, 123 Fed. 636; Atchison R. Co. v. Gee, 139 Fed. 582; Pope Motor Co. v. Keegan, 150 Fed. 148 (collection of large crowd); Allis Chalmers Co. v. Iron Molders’ Union, 150 Fed. 155 (crowds); Goldfield Consolidated Mines Co. v. Goldfield Miners’ Union, 159 Fed. 500; Kolley v. Robinson, (C. C. A.) 187 Fed. 415; Fortney v. Carter, (C. C. A.) 203 Fed. 454; Bittner v. West Virginia Coal Co., (C. C. A.) 214 Fed. 716; Goldberg v. Stablemen’s Union, 149 Cal. 429; Underhill v. Murphy, 117 Ky. 640; Sherry v. Perkins, 147 Mass. 212 (intimidating banner); Ideal Mfg. Co. v. Ludwig, 149 Mich. 133 (crowd); Baltic Mining Co. v. Judge, 177 Mich. 632; Minnesota Stove Co. v. Cavanaugh, 131 Minn. 458; Jones v. Maher, 62 Misc. 388; O’Neil v. Behanna, 182 Pa. St. 236; Jensen v. Cooks’ Union, 39 Wash. 531; Commercial Printing Co. v. Tacoma Typographical Union, 85 Wash. 234.

Picketing, see American Steel Co. v. Wire Drawers’ Union, 90 Fed. 608; Iron Molders’ Union v. Allis Chalmers Co., (C. C. A.) 166 Fed. 45; Sona v. Aluminum Castings Co., (C. C. A.) 214 Fed. 936; Karges Furniture Co. v. Woodworkers’ Union, 165 Ind. 421; Beck v. Teamsters’ Union, 118 Mich. 497.

Annoyance of workers resorting to plaintiff. Union P. R. Co. v. Ruef, 120 Fed. 102; Frank v. Herold, 63 N. J. Eq. 443; Jonas Glass Co. v. Glass Blowers’ Ass’n, 77 N. J. Eq. 219.

Inducing employer to break contracts. Read v. Friendly Society, [1902] 2 K. B. 732; Jonas v. Glass Blowers’ Ass’n, 77 N. J. Eq. 219; Flaccus v. Smith, 199 Pa. St. 128.

Inducing employees to break contract. Hardie Tynes Mfg. Co. v. Cruse, 189 Ala. 66; Folsom v. Lewis, 208 Mass. 336; Jonas Glass Co. v. Glass Blowers’ Ass’n, 77 N. J. Eq. 219; Grassi Contracting Co. v. Bennett, 160 N. Y. Suppl. 279.

[612]. This section is as follows: “No person shall, by intimidation or force, prevent or seek to prevent a person from entering into or continuing in the employment of any person or corporation.”

[613]. In accord with the prevailing opinion, see Tunstall v. Stearns Coal Co., 192 Fed. 808; Folsom v. Lewis, 208 Mass. 336; Burnham v. Dowd, 217 Mass. 351; Fairbanks v. McDonald, 219 Mass. 291; Cornellier v. Haverhill Mfr’s Assn, 221 Mass. 554; Blanchard v. Newark District Council, 77 N. J. Law, 389; Ruddy v. United Journeyman Plumbers, 79 N. J. Law, 467, 81 N. J. Law, 574. Compare Giblan v. National Amalgamated Union, [1903] 2 K. B. 600; National Fire Proofing Co. v. Mason Builders’ Ass’n, 169 Fed. 259; Gill Engraving Co. v. Doerr, 214 Fed. 111.

Contra, Kemp v. Division No. 241, 255 Ill. 213.

Purpose of gaining control of the labor market. New England Cement Co. v. McGivern, 218 Mass. 198; Jacobs v. Cohen, 183 N. Y. 207; McCord v. Thompson Starrett Co., 129 App. Div. 130; Schwarcz v. International Union, 68 Misc. 528; Newton v. Erickson, 70 Misc. 291.

Compare Reynolds v. Davis, 198 Mass. 294.

[614]. See majority and minority opinions in the later case of Willcut & Sons Co. v. Driscoll, 200 Mass. 110, also Booth v. Burgess, 72 N. J. Eq. 181. Compare Rhodes v. Musicians’ Union, 37 R. I. 281.

[615]. The following condensed statement is taken from 20 Harvard Law Review, 445–447.

[616]. Loring, J., p. 583.

[617]. Ibid.

[618]. Only a part of the opinion is given (pp. 587–88).

[619]. Bossert v. Dhuy, 166 App. Div. 261, 221 N. Y. 342 Accord. But see Grassi Contracting Co. v. Bennett, 160 N. Y. Suppl. 279.

In Bohn Mfg. Co. v. Hollis, 54 Minn. 223, “a large number of retail lumber dealers formed a voluntary association, by which they mutually agreed that they would not deal with any manufacturer or wholesale dealer who should sell lumber directly to consumers not dealers, at any point where a member of the association was carrying on a retail yard; and they provided in their by-laws that, whenever any wholesale dealer or manufacturer made any such sale, the secretary should notify all the members of the fact. The plaintiff, a wholesaler, having made such a sale directly to a consumer, the secretary threatened to send notice of the fact, as provided in the by-laws, to all the members of the association.” (This statement is copied from 17 Green Bag, 218. See also statement by Professor Lewis, 44 Am. L. Reg. N. S. 469.) The court refused to grant an injunction against sending out the notice. Here the retail dealers did not threaten to cease dealing with any one except their competitors, i. e., wholesale dealers who should attempt to sell directly to consumers. They used no lever but their own conduct. They did not threaten to induce outsiders to refrain from working for, or selling goods to, the wholesalers. And even as to their own conduct, they did not threaten to abstain from dealings with wholesalers in all matters, but only in the purchase of lumber. Much less did they threaten to abstain from dealing with persons who dealt with the wholesalers. In a subsequent case the same court said: “It is to be noted that the defendants in the Bohn case had similar legitimate interests to protect which were menaced by the practice of wholesale dealers in selling lumber to contractors and consumers; and that the defendants’ efforts to induce parties not to deal with offending wholesale dealers were limited to the members of the association having similar interests to conserve, and that there was no agreement or combination or attempt to induce other persons not members of the association to withhold their patronage from such wholesale dealers.” Ertz v. Produce Exchange Co., 79 Minn. 140, 144. See also Jackson v. Stanfield, 137 Ind. 592; Brown v. Jacobs Pharmacy Co., 115 Ga. 429; and other cases collected by Professor Wyman, 17 Green Bag, 210, 222.

Strike unless plaintiff is discharged, as a means toward better conditions in the shop, see Minasian v. Osborne, 210 Mass. 250.

Strike to get rid of personally objectionable foreman. De Minico v. Craig, 207 Mass. 593.

[620]. Statement abridged. Portions of opinion omitted.

[621]. Gompers v. Bucks Stove & Range Co., 221 U. S. 418; Baldwin v. Escanaba Dealers’ Ass’n, 165 Mich. 98; Fink v. Butchers’ Union, 84 N. J. Eq. 638; McCormick v. Local Unions, 32 Ohio Cir. Ct. R. 165 Accord.

Compare Ex parte Heffron, 179 Mo. App. 639.

[622]. Bossert v. Dhuy, 221 N. Y. 342; Cohn & Roth Electric Co. v. Bricklayers’ Union, 92 Conn. 161 Accord. See Iron Molders’ Union v. Allis Chalmers Co., (C. C. A.) 166 Fed. 45. Also Wigmore, The Boycott as Ground for Damages, 21 American Law Rev. 509, and Interference with Social Relations, 21 American Law Rev. 764.

TRANSCRIBER’S NOTES

  1. P. [403], changed “Holden v. McGillicuddy, 213 Mass. 563” to “Holden v. McGillicuddy, 215 Mass. 563”.
  2. P. [552], changed “they avoid the contract” to “they void the contract”.
  3. P. [840], changed “by continued user in connection” to “by continued use in connection”.
  4. Silently corrected obvious typographical errors and variations in spelling.
  5. Retained archaic, non-standard, and uncertain spellings as printed.
  6. Re-indexed footnotes using numbers and collected together at the end of the last chapter.