^^r\(ot-ei ^^^^ / ^7. -r THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW CASES ON LEGAL LIABILITY BY JOSEPH HENRY BEALE ROYAIiL PROFESSOR OF LAW IN HARVARD UNIVERSITY SECOND EDITION CAMBRIDGE HARVARD UNIVERSITY PRESS 1920 Copyright, 19H, 1915, 1920, By Joseph Henry Beale 1 H X<^ THE UNIVERSITY PRESS, CAMBRIDGE, U. S. A. o »v4 TO JEREMIAH SMITH f.y .f > o.c> PREFACE. The subject of the present collection is that body of legal prin- ciples which determines whether one may be charged with the consequences of his act. Not all the requisites of ultimate liability are here considered; the element of blame is not treated. It is left for a more particular study of the law of Torts to de- termine what degree of intention, malice or negligence must exist before one may be forced to make compensation for a wrong; and for a study of Criminal Law to determine how far a guilty mind is requisite before punishment can be inflicted. The topics here considered are those fundamental ones which are a common element of torts and crimes; and the object of this collection is to prevent that duplication of effort which has heretofore existed through the attempt to include instruction in these topics in courses on Torts and on Criminal Law. The editor can claim little credit for the selection of the cases here collected. ]Most of the civil cases on Causation have been found in Judge Smith's Cases on Torts, and in the notes to his illuminating articles on Legal Cause (Harvard Law Review, vol. XXV, pp. 103, 223, 303). Most of the civil cases on Permitted Acts have been found in the text and notes of Ames's Cases on Torts. Most of the criminal cases have been taken from the second edi- tion of the present editor's Cases on Criminal Law. J. H. BEALE. Cambridge, December 1, 1914. TABLE OF CONTENTS. Page Table of Cases ix Chapter I. Law 1 Chapter II. Liability Based upon Act : Section 1. Nature of an Act 38 Section 2. Omission as an Act 44 Section 3. Causation of Injurj' 65 Section 4. Remote Consequences 70 Chapter III. Liability Based on Proximate Causation : Section 1. No Intervening Force 78 Section 2. Intervening Force Caused by First Force 103 Section 3. Intervening Force Risked as Result of First Force 158 Section 4. Cases for Analysis ■ 228 Chapter IV. • Liability Irrespective of Proximate Causation : Section 1. Respondeat Superior 332 Section 2. Liability for Animals 349 Sections. The "Civil Damage" Act 359 Section 4. Workmen's Compensation Acts 377 Chapter V. Permitted Acts : Section 1. Duty to Act 414 Section 2. Authority to Act 433 Section 3. Privilege to Act 501 Section 4. Protection from Consequences of Permitted Acts 622 Section 5. Action in Pursuance of Permission 643 Section 6. Action under Mistake as to Permission 649 Chapter VI. Measure of Compensation : Section 1. Entire Damages 664 Section 2. Assessment of Damage 675 Section 3. Certainty 711 Section 4. Elements of Loss 765 Section 5. Interest 841 Section 6. Liquidated Damages 850 Section 7. Exemplary Damages 864 TABLE OF CASES. Page Acres v. United States 553 Aldworth v. Lynn 670 Allen V. Crofoot 648 Allison V. Chandler 716 Anderson v. State 59 Andrews v. Kinsel 207 Anon. 38, 531, 571 Armory v. Delamirie 822 Armstrong v. Montgomery Ry. 79 Arp V. State 514 Atchison T. & S. F. Ry. f. Parry 159 Am-ora Citv v. West 849 Axtell's Case 425 Bailey v. People 584 Bakker v. Welsh 499 Balmain N. F. Co. v. Robertson 634 Baltimore & P. R. R. v. Fifth Bap- tist Church 678 Barfoot v. Reynolds 561 Barker v. Lewis S. & T. Co. 709 Beale v. Boston 696 Beard v. United States 549 Beattie v. State 61 Beatty v. Gillbanks 233 Bell V. Rocheford 180 Bellino v. Columbus C. Co. 304 Benedict P. Co. v. Atlantic C. L. R. R. 321 Bentley v. FLsher L. & M. Co. 283 Bernhard v. Rochester G. L Co. 841 Binford )'. Johnston 187 Blake v. Head 377 Blankard v. Galdy 11 Bloom V. Frankhn L. & I. Co. 150 Boomer v. Wilbur 339 Bowman v. Neely 848 Bradford v. Cunard S. S. Co. 725 Bradley?;. Chicago M.&S. P. Ry. 772 V. Hooker 707 Bridgeport v. Aetna L Co. 797 Brigham v. CarUsle 733 British W. E. & M. Co. v. Under- ground E. Rys. 814 Brosnan v. Sweetser 821 Brown v. Kendall 623 V. White 728 Burk V. Creamery P. M. Co. 177 Burns v. Erben 442 Page Burrows v. March Gas Co. 228 Burtraw v. Clark 813 Bush V. Commonwealth 142 Butler V. Burton-on-Trent Union 378 Campbell v. Race 501 Casselberry v. Forquer 666 Castell V. Bambridge 72 Central Ry. v. Price 76 Chaddock v. Plummer 189 Chaplin v. Hicks 761 Chappell V. Jardine 13 Chase v. Ingalls 656 Chicago V. Huenerbein 722 Clark V. Chambers 125 Cleary v. Booth 455 Clydebank E. & S. Co. v. Yzquierdo 853 Cocliran v. Boston 844 Cole V. German S. & L. Soc. 293 Commonwealth v. Campbell 154 V. Chapman 6 — V. ChurchiU 28 V. Crotty \ 655 V. Donahue 602 V. Dougherty 590 V. Drum ^ 546 V. Hackett 138 V. McAfee 460 V. Miller 522 Comstock V. Connecticut R. & L. Co. 742 Cooper's Case 572 Cope V. Sharpe 597 Corey v. Havener 70 Creighton v. Commonwealth 556 Currier v. McKee 371 Dady v. Condit 698 Dalv V. Bates 411 Darley M. C. Co. v. Mitchell 667 Day V. Woodworth 830 De'Camp v. Sioux City 269 Dennison v. Van Wormer 365 Denny v. New Yor> C. R. R. 218 Derry v. Flitner 172 Doll V. Ribetti 342 Donovan's Case 399 Dragovich v. Iroquois L Co. 405 Dugdale v. Regina 43 X TABLE OF CASES. Eaton V. Boissonnault Eberhardt v. Gla.sco M. T. Assoc. Eckert v. Long Island R. R. Ehrgott V. New York Elder v. Morrison Elmer v. Fessenden Everett v. Eastaff Fairfield v. Salem Fertich v. Michener Fetter V. Beal Fields V. Stokley Filburn v. People's P. & A. Co. First Nat. Bank v. Kinner Five Tracts of Land v. United States Flint V. Bruce Ford V. Trident Fisheries Co. Fottler V. Moseley Fowler v. Oilman Fox V. Boston & M. R. R. Fulton V. Kalbach Gage V. Harvey Gay V. State Gibbons v. Pepper Oilman v. Emery V. Noyes Glaspy V. Cabot Glassey v. Worcester C. S. Ry. Glever v. Hynde Globe R. Co. v. Landa C. Co. Goddard v. Grand Trunk Ry. Goodheart v. Pennsylvania R. R. Goodwin v. Avery Grand Tower Co. v. Phillips Graves v. Johnson Green-Wheeler Shoe Co. v. Chi- cago Ry. Gregory v. Oakland M. C. Co. Griffin v. Colver Guetzkow V. Andrews , Guille V. Swan Hadley v. Baxendale Haines v. Schultz Handcock ;,'. Baker Hanks v. State Hard im an /'. Wholley Harrison v. Berkeley Henderson v. Dade Coal Co. Hendrickson v. Commonwealth Henry v. St. Louis K. C. & N. Ry. Herberd's Case Herd V. Weardale S. C. & C. Co. Heritage v. Dodge Hern v. Nichols Hichhorn /;. Bradley Higgins V. Minaghan V. Watervliet T. Co. Hill r. Winsor Hodgedcn v. Hubbard Page Page 846 Hogan V. Bragg 328 319 Hoj)ple V. Higbee 807 147 Howland v. Blake Manuf. Co. 487 120 6.51 822 Hunt V. Caskey 583 lUinois Cent. R. R. v. Siler 116 379 Ingraham v. Pulhnan Co. 791 Isham V. Dow 258 792 4.57 Jackson v. Turrell 826 664 V. Wisconsin Tel. Co. 174 479 3.5,5 12 Jones V. Boyce 108 Keleher v. Putnam 478 Kelsey v. Rebuzzini 315 706 Kemble v. Farren 850 563 King V. Bangs 828 65 V. Interstate C. S. Ry. 62 302 King's Prerogative in Saltpetre, 825 The 464 220 Kountz V. Kirkpatrick 681 330 Krach v. Heilman 359 Kramer v. Wolf C. S. Co. 789 367 71 Lake County v. RoUins 27 39 Lake Shore & M. S. Ry. v. Pren- 616 tice 874 162 Lamond v. Seacoast C. Co. 756 705 Lane v. Atlantic Works 183 287 Langbridge's Case 1 468 Lawton v. Steele 21 777 Lee V. Bude & T. J. Ry. 22 864 Leeds v. Metropolitan G. L. Co. 723 675 Locke V. Stearns 332 619 Loker v. Damon 785 679 Lonergan v. Waldo 774 204 Lords Bailiff-Jurats v. Trinity House 229 222 Louisville v. Hart 278 729 LouisviUe & N. R. R. v. Stewart 708 711 Lowenberg v. Rosenthal 659 76S Lynn Gas Co. v. Meriden Ins. Co 80 103 Lyons v. Merrick 349 765 McDonald v. Snelling 241 872 McKennon v. Winn 19 433 M'Lauchlan v. Anderson 381 24 McLeod V. Jones 607 357 McNicol's Case 397 199 Markley v. Whitman 491 209 Martin v. Lovibond 395 252 Masterton v. Mt. Vernon 731 248 Mathews v. Kansas City Rys. 329 415 Mead v. Stratton 360 639 Mediana, The 700 458 Memorandvun 44, 527, 528 332 Milliken's Case 401 736 Milostan v. Chicago 213 592 Minor, Ex parte 618 335 Minot V. Doherty 375 87 Mirehouse v. Rennell 5 604 1 Mohr V. Williams 494 TABLE OF CASES. XI Page Mortimer v. New York E. R. R. 16 Moses V. Dubois 628 Nash V. Western U. T. Co. 172 Nat. Bank of Commerce v. New Bedford 691 Nesbett v. Wilbur 617 Neu V. McKechnie 364 Norske A. Act. v. Sun P. & P. Assoc. 802 Note 526, 527 O'Brien v. Cunard S. S. Co. 484 Ollet V. Pittsburg C. C. & S. L. Ry. 493 Olson V. Gill H. I. Co. 194 Orbach v. Paramount P. Corp. 745 Oxley V. Watts 647 Oysted v. Shed 419 Pacific S. W. Co. V. Alaska P. Assoc. 755 Parker v. Russell 673 Paul V. Summerhayes 476 Payzu V. Saunders 794 People V. Button 540 V. Cook 141, 569 V. Detroit W. L. Works 520 V. Fitzgerald 422 V. Lewis 289 — — V. Taylor .467 V. Warren 418 Perrott v. Shearer 820 Pittsburg R. Co. v. Horton 191 Plumb V. Cobden F. M. Co. 382 Plimimer, Penobscot L. Assoc. 788 Pond V. People 437 Pooler V. Reed 658 Prior of Lewis v. Bishop of Ely 1 Proctor V. Adams 472 Pullman P. C. Co. v. Bluhm 134 Putnam v. Payne 469 Queen v. Jackson 461 Redmond v. American Mfg. Co. 689 Reeder v. Purdy 578 Regina v. Conde 47 — — V. Dadson 644 ■ V. Downes 49 V. Dudley 506 • V. Fretwell 205 V. Griffin 454 -^ V. Halliday 231 V. Hewlett 531 V. Holland 102 V. Instan 54 V. Lesley 632 ■ V. Lowe 46 V. MitcheU 182 — — • V. Murphy 441 V. Randall 525 V. Rose 562 Page Regina v. Smith 47 V. Towers 73 V. White 48 Reiger v. Worth 748 Resp. V. McCarty 514 Rex V. Compton 414 V. Crutchley 513 V. DeMarny 104 V. Friend 45 V. Gill 76 V. Heath 42 V. Herthale 526 V. Pittwood 57 V. Smith 437 V. Squire 44 V. Sutton 40 Rice V. Rice 727 Roach V. Kelly 370 Romney Marsh v. Trinity House 229 Rowe V. L'nited States 532 Ryan ;-. New York C. R. R. 89 Ryerson v. Chapman 833 Saenger v. Locke 410 St. Louis, I. M. & S. Ry. v. Taylor 31 Salisbury v. Green 611 Samuel v. Payne i 650 Sapwell V. Bass 758 Sauter v. New York C. & H. R. R. R. 135 Scanlon v. Wedger 486 Scheffer v. Washington C. & G. R. R. 99 Schoepflin v. Cofi"ey 284 Schwartz v. California G. & E. Corp. - 307 Scott V. Shepherd 110 Seavey v. Preble 474 Shingiemeyer ;.'. Wright 488 Shorter v. People 660 Six Carpenters' Case 646 Sloan Baird | 843 Smith V. Bergengren 852 V. Fife Coal Co. 393 V. London & S. W. Ry. 93 South Side P. Ry. v. Trich 255 Sowles V. Moore 66 State ;'. Donnelly 547 V. Evans 555 V. Gut 483 V. Knight 23 V. Knoxville 420 V. Melton 570 V. O'Brien 78 — — V. Patterson 573 V. Scates 68 V. Sherman 558 V. Wray 466 Stewart v. Longhurst 406 Stodghill V. Chicago B. & A. R. R. 671 Stoffer V. State 536 Stone V. Boston & A. R. R. 262 xu TABLE OF CASES. Page Storey v. State ~ 445 Strang v. Russell 645 Sullivan v. Old Colonv R. R. 582 Sullivan v. Old C. S. Ry. 676 Sundine's Case 403 Surocco V. Geary 470 Thomas v. Kinkead 449 Thompson v. Louisville & N. R. R. 144 Tillman v. Beard 444 Tinkle v. Dunivant 463 Tompkins v. Knut 564 Torrv v. Black 811 Towaliger F. P. Co. v. Sims 261 Trim J. D. S. Board v. KeUy 387 Tuck r. Beliles 416 Turner r. Page 149 Uhlein v. Cromack 560 United States v. Bethlehem Steel Co. 858 V. Clark 426 V. Freeman 158 V. Jones 519 — r. Wiltberger 35 Page Vandine, petitioner 32 Vincent v. Lake E. T. Co. 612 Vcsburg V. Putney 490 Vredenburg v. Behan 351 Washington & G. R. R. v. Hickey 271 Watson V. Kentucky & I. B. & R. R. 312 V. State 654 Western U. T. Co. v. Hall 750 Westfield v. Mayo 837 White V. Miller 747 Whitwham v. Westminster B. C. & C. Co. 693 W^ild's Case 572 Williams v. Brennan 358 Winkfield, The 823 Wise V. Dunning 236 V. United States 861 Wolf V. Studebaker 786 Wood V. Pennsylvania R. R. 84 V. State 566 Yoder v. Yoder 583 CASES ON LEGAL LIABILITY. CHAPTER I. LAW. PRIOR OF LEWIS v. BISHOP OF ELY. Common Bench. 1304. [Reported Year Booh S2 Edw. I. Zl-I This was a suit brought against the defendant to test the right of appointraent by the bishop to a living which was within the gift of the prior. The prior alleged that he had presented a suitable person for the living but the bishop refused liim, and appointed another person. Toutheby for the defendant alleged that the person presented was an unsuitable person for three reasons stated by him.^ Herle for the plaintiff. He presented a suitable person ready &c. where and when &c. But consider whether he shall be received to aver these three causes ; for the judgment to be by 3-ou now given will be hereafter an authority in every Quare no7i admisit in England. LANGBRIDGE'S CASE. Common Bench. 1345. [Reported Year Book 19 Ediv. III. 375.] This was a suit to recover land. The party defendant (called the tenant) made default ; whereupon Langbridge prayed that he might be admitted to defend, because the tenant had only a life estate, and the remainder was in himself^ 1 The statement of the case has been simplified, and only such portions of the case are given as Ijear on the sources of law. — Ed. 1 2 langbridge's case. [chap. I. Huse (for the petitioner) produced a deed showing the gift. R. Thorpe (for the demandant^. You see plainly that his right is not proved by record or by fine, and we cannot have any answer to this deed nor is it an issue to sa}- that he has nothing in remainder; and since we cannot have an answer to his statement, we pra}' seisin. Sharshl'lle, J. One has heard speak of that which Bereford and Herle [former judges] did in such a case, that is to say, when a remain- der was limited in fee simple by fine the}' admitted the person in re- mainder to defend, and it was said bj' them that it would be otherwise if the limitation were by deed in pais; but nevertheless, no precedent is of such force as that which is right." . . . Hillary, J. Demandant, will you say anything else to oust him from being admitted ? B. Thorpe. If it so seems to you, we are ready to saj- what is suffi- cient ; and I think you will do as others have done in the same case, or else we do not know what the law is. Hillary, J. It is the will of the Justices. Stonore, C. J. No ; law is that which is right. ^ Blackstones' Commentaries, Book I, pp. 68-73. Some have divided the common law into two principal grounds or foundations: 1. Established customs; such as that, where there are three brothers, the eldest brother shall be heir to tiie second, in exclu- sion of the youngest : and 2. Established rules and maxims; as, " that the king can do no wrong, that no man shall be bound to accuse him- self," and the like. But I take these to be one and the same thing. For the authority of these maxims rests entirely ui)on genei'al reception and usage : and the onl\' method of proving that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it. But here a very natural, and very material, question arises : how are these customs and maxims to be known, and by wliom is their validity to be determined ? The answer is, b\' the judges in the several courts of justice. They are the depositaries of the laws ; the living oracles who must decide in all cases of doubt, and who are bound b}- an oath to decide according to the law of the land. The knowledge of that law is derived from experience and study ; from the '' viffinti annorum lucji- brationes" which Fortescue mentions ; and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evi- dence tliat can be given, of the existence of such a custom as shall form a [)art of the common law. The judgment itself, and all the pro- ceedings previous thereto, are carefully registered and preserved, under 1 Come resoun. 2 Nanyl; ley est resoun. CHAP. I.] LANGBEIDGE'S CASE. 3 the name of records, in public repositories set apart for that particular purpose ; and to them frequent recourse is had when any critical ques- tion arises in the determination of which former precedents may give light or assistance. And therefore, even so earl}' as the conquest, we find the '■'■ prceteritorum memoria eventorum " reckoned up as one of the chief qualifications of those, who were held to be " legihas patrim oj^time instituti." For it is an established rule to abide by former precedents, where the same points come again in litigation : as well to keep the scale of justice even and steady, and not liable to waver witli every new judge's opinion ; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indif- ferent, is now become a permanent rule, which it is not in the breast of anj- subsequent judge to alter or var}- from, according to his private sentiments : he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land ; not delegated to pronounce a new law, but to maintain and ex- pound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason ; much more if it be clearly contrar}' to the divine law. But even in such cases the subse- quent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that sucli a sentence was bad laic, but that it was not laio ; that is, tliat it is not the established custom of the realm, as has been erroneously deter- mined. And hence it is tliat our lawyers are with justice so copious in their encomiums on the reason of the common law ; that they tell us that the law is tlie perfection of reason, that it always intends to con- form thereto, and that what is not reason is not law. Not that the par- ticular reason of every rule in the law can at this distance of time be always precisely assigned ; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded. And it hath been an ancient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences tliat have followed the innovation. The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust : for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose that they acted wholly without consideration. To illustrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king, or other superior lord. Now this is a positive law, fixed and estab- lished by custom, which custom is evidenced by judicial decisions; and therefore can never be departed from b}' anj- modern judge without a 4 langbridge's case. [chap, l breach of his oath and the Uiw. For herein there is nothing repugnant to natural justice; though the artificial reason of it, drawn from the feodal law, may not be quite obvious to everybody. And therefore, though a modern judge, on account of a supposed hardship upon the half brother, might wish it had otherwise been settled, yet it is not in his power to alter it. But if any court were now to determine, that an elder brother of the half blood miglit enter upon and seize an}- lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was unjust, was unreasonable, and therefore was not laic. So tliat the law., and the opinion of the judge., are not always convertible terms, or one and the same thing ; since it sometimes ma}' happen that the judge may mistake the law. Upon the whole, however, we may take it as a gen- eral rule, "that the decisions of courts of justice are the evidence of what is common law : " in the same manner as, in the civil law, what the emperor had once determined was to serve for a guide for the future. The decisions therefore of courts are held in the highest regard, and are not onl}' preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer's librar}'. These reports are histories of the several cases, with a short summary of the proceedings, which ai'e preserved at large in the record ; the arguments on both sides and the reasons the courts gave for this judgment ; taken down in short notes b}' persons present at the determination. And these serve as indexes to, and also to explain, the records, which always, in matters of consequence and nicet}', the judges direct to be searched. The reports are extant in a regular series from the reign of King Edward the Second inclusive ; and, from his time to that of Henry the Eighth, were taken by the prothonotaries, or chief scribes of the court, at the expense of the crown, and published annually, whence they are known under the denomination of the year books. And it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day: for, though King James the First, at the instance of Lord Bacon, appointed two reporters with a handsome stipend for this purpose, 3et tliat wise institution was soon neglected, and from the reign of Henry the Eighth to the present time this task has been executed b}' many private and contemporary hands; who sometimes through haste and inaccurac}*, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination. Some of the most valu- able of the ancient reports are those published by Lord Chief-Justice Coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However, his writings are so hiuhly esteemed, that they are generally cited without the author's name. CHAP. I.] LANGBRIDGE'S CASE, 5 Besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. Such are Glanvil and Biacton, Britton and Fleta, Hengham and Little- ton, Statham, Brooke, Fitzherbert, and Staundforde, with some others of ancient date ; whose treatises are cited as authorit\', and are evi- dence that cases have formed}' happened in which such and such points were determined, which are now become settled and first princi- ples. One of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, is the same learned judge we have just mentioned, Sir Edward Coke ; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by Judge Littleton in the reign of Edward the Fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the ancient reports and year books, but greatly defective in method. The second volume is a comment upon man}' old acts of parliament, without any systematical order ; the third a more methodical treatise of the pleas of the crown ; and the fourth an account of the several species of courts. Parke, J., in Mirehouse v. Rennell, 1 CI. & F. 527, 546.^ The pre- cise facts stated b}' your Lordshi|)s have never, as far as we can learn, been adjudicated upon in any Court ; nor is there to be found any opinion upon them- of any of our Judges, or of those ancient text writers to whom we look up as authorities. The case, therefore, is in some sense new, as many others are which continually occur ; but we have no right to consider it, because it is new, as one for which the law has not provided at all ; and because it has not yet been decided, to decide it for ourselves, according to our own judgment of what is just and expedient. Our common-law system consists in the appljing to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents ; and for the sake of attaining uniformity, consistency, and certainty, we must appl}- those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which the}' have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science. 1 Cited iu Wambaugh, Study of Cases, § 77 : and see §§ 73-79. — Ed. 6 COMMONWEALTH V. CHAPMAN. [CHAP. I. COMMONWEALTH v. CHAPMAN. Supreme Judicial Court of Massachusetts. 1848. [Reported 13 Metcalf, 68.] Shaw, C. J. Tliis was an iiulictment against the defendants for a false and malicious libel, tried before the Court of Conimoa Pleas, and, upon a conviction there, the case is brought before this court, upon an exception which has been most elaborately argued b}- the learned counsel for the defendants, and which, if sustained, must go to the foundation of the prosecution ; namelj-, that there is no law of this Commonwealth b3' whicli the writing and publishing of a malicious libel can be prosecuted by indictment, and punished as an offence. The proposition struck us witli great surprise, as a most startling one ; but as it was seriously presented and earnestly urged in argument, we felt bound to listen, and give it the most careful consideration; but after the fullest deliberation, we are constrained to say, that we can enter- tain no more doubt upon the point than we did when it was first offered. It is true that there is no statute of the Commonwealth declaring the writing or publishing of a written libel, or a malicious libel, by signs and pictures, a punishable offence. But this goes little wa\' towards settling the question. A great part of the municipal law of Massa- chusetts, both civil and crimimd, is an unwritten and traditionary law. It has been common to denominate this "the common law of Fa^h- land," because it is no doubt true that a large portion of it has been derived from the laws of England, either the common law of England, or those English statutes passed before the emigration of our ancestors, and constituting a part of that law, by which, as English subjects, they were governed when they emigrated ; or statutes made afterwards, of a general nature, in amendment or modification of the common law, which were adopted in the colony or province b\' general consent. In addition to tliese sources of unwritten law, some usages, growing out of the peculiar situation and exigencies of the earlier settlers of Massachusetts, not traceable to any written statute or ordinance, but adopted b}' general consent, have long had the force of law ; as, for instance, the convenient practice, by which, if a married woman join with her husband in a deed conveying land of whicli she is seized in her own riglit, and simply acknowledge it before a magistrate, it sliall be valid to pass her land, witliout the more expensive process of a fine, required by the common law. Indeed, considering all these sources of unwritten and traditionary law, it is now more accurate, instead of the common law of England, which constitutes a part of it, to call it col- lectiveh' the common law of Massachusetts. To a very great extent, the unwritten law constitutes the basis of our jurisprudence, and furnishes the rules bj' which public and private rights CHAP. I.] COMMONWEALTH V. CHAPMAN. 7 are established and secured, the social relations of all persons regulated, their rights, duties, and obligations determined, and all violations of duty redressed and punished. Without its aid, the written law, em- bracing the constitution and statute laws, would constitute but a lame, partial, and impracticable system. Even in many cases, where statutes have been made in respect to particular subjects, the\' could not be carried into effect, and must remain a dead letter, without the aid of the common law. In cases of murder and manslaughter, the statute declares the punishment ; but what acts shall constitute murder, what manslaughter, or what justifiable or excusable homicide, are left to be decided by the rules and principles of the common law. 80, if an act is made criminal, but no mode of prosecution is directed, or no punishment provided, the common law furnishes its ready aid, pre- scribing the mode of prosecution by indictment, the common law punishment of fine and imprisonment. Indeed, it seems to be too obvious to require argument, tliat without the common law, our legis- lation and jurisprudence would be impotent, and wholly' deficient in completeness and symmetry, as a system of municipal law. ->] It will not be necessary here to consider at large the sources of the unwritten law, its authority as a binding rule, derived from long and general acquiescence, its provisions, limits, qualifications, and excep- tions, as established bv well authenticated usage and tradition. It is sufficient to refer to 1 Bl. Com. 63 et seq. If it be asked, " How are these customs or maxims, constituting the common law to be known, and by whom is their validity to be deter- mined?" Blackstone furnishes the answer; "by the judges in the several courts of justice. The}' are the depositaries of the laws, the living oracles, who must decide in all cases of doubt, and wlio are bound by oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study, " and from being long personall}' accustomed to the judicial decisions of their predecessors." 1 Bl. Com. 69. Of course, in coming to any such decision, judges are bound to resort to the best sources of instruction, such as the records of courts of justice, well authenticated histories of trials, and books of reports, digests, and brief statements of such decisions, prepared b_y suitable persons, and the treatises of sages of the profession, whose works have an established reputation for correctness. That there is such a thing as a common or unwritten law of Massa- chusetts, and that, when it can be autlienticall}' established and sus- tained, it is of equal authority and binding force with the statute law, seems not seriously contested in the argument before us. But it is urged that, in the range and scope of this unwritten law, there is no provision which renders the writing or publishing of a malicious libel punishal)le as a criminal offence. The stress of the argument of the learned counsel is derived from a supposed qualification of the general proposition in the constitution of 8 COMMONWEALTH V. CHAPMAN. [CHAP. L Massachusetts, usuall}- relied on in proof of tlie continuance in force of the rules and principles of the common law, as the3' existed before the adoption of the constitution. The clause is this : Chap. 6, Art. 1, Sect. 6 : " All the laws which have been adopted, used, and approved in the province, colony, or state of Massachusetts Bay and usually prac- tised on in the courts of law, shall still remain and be in full force until altered or repealed by the legislature ; such parts only excepted as are repugnaut to the rights and liberties contained in this constitution." It is then argued, that it is in virtue of this clause of the constitu- tion that the common law of England, and all other laws existing before the revolution, remain in force, and that this clause so far modifies the general proposition, that no laws are saved, but those which have been actually applied to cases in judgment in a court of legal proceeding ; and unless it can be shown affirmatively that some judgment has been rendered, at some time before the adoption of the constitution, aflBrmative of an\- particular rule or principle of the common law, such rule is not brouglit within the saving power of this clause, and cannot therefore be shown to exist. We doubt the sound- ness of this proposition, and the correctness of the conclusion drawn from it. We do not accede to the proposition, that the present existence and effect of the whole body of law, which existed before the constitution, depends soleh' upon this provision of it. We take it to be a well- settled principle, acknowledged by all civilized states governed by law, that by means of a political revolution, b}- which the political organization is changed, the municipal laws, regulating their social relations, duties, and rights, are not necessarilj' abrogated. They, remain in force, except so far as the}' are repealed or modified by the new sovereign authority. Indeed, the existence of this body of laws, and the social and personal rights dependent upon them, from 1776, when the Declaration of Independence was made, and our political revolution took place, to 1780, when this constitution was adopted, depend on this principle. The clause in the constitution, therefore, though highly proper and expedient to remove doubts, and give greater assurance to the cautious and timid, was not necessary to preserve all prior laws in force, and was rather declaratory of an existing rule, than the enactment of a new one. We think, therefore, it should have such* a construction as best to carry into eflfect the great principle it was intended to establish. But further ; we think the nrgument is unsound in assuming that no rule of the common law can be established under this clause of the constitution, without showing afl!irmatively, that in some judicial pro- ceeding, such rule of law has been drawn in question and affirmed, previously to the adoption of the constitution. During that time there were no published report of judicial proceedings. The records of courts were very imperfectly kept, and afford but little information in CHAP. I.] COMMONWEALTH V. CHAPMAN". 9 regard to the rules of law discussed and adopted in them. And who has examined all the records of all the criminal courts of Massachu- setts, and can declare that no records of such prosecutions can be found? But so far as it regards libel, as a criminal offence, we think it does appear, from the very full and careful examination of the late Judge Thacher (^Commonwealth v. Whitmarsh, Thacher's Crim. Cases, 441), that many prosecutions for libel were instituted in the criminal courts before the Revolution, and none were ev^er quashed or otherwise disposed of, on the ground that there was no law rendering libels punishable. In the case of the indictments returned against Governor Gage and others, verj' much against the will of the judges, those indictments were received and filed, and remained, until non prossed hy the king's attorney-general. This investigation of the histor}- of the common law of Massachusetts is so thorough, complete, and satisfactor}', that it is sufficient to refer to it,, as a clear elucidation of the subject. But we think there is another species of evidence to prove the existence of the common law, making libel an offence punishable by law, clear, satisfactory, and decisive ; and that is, these rules of law, with some modification, caused by the provisions of the constitution, have been affirmed, declared, and ratified by the judiciary and the legislative departments of the existing government of Massachusetts, b}- those whose appropriate province and constitutional duty it was to act and decide upon them ; so that the}' now stand upon a basis of authorit}' which cannot be shaken, and must so stand until altered or modified by the legislature. "When our ancestors first settled this countr}*, they came here as English subjects ; the}'' settled on the land as English territor}', con- stituting part of the realm of England, and of course governed by its laws ; they accepted charters from the English government, conferring both political powers and civil privileges ; and they never ceased to acknowledge themselves English subjects, and never ceased to claim the rights and privileges of English subjects, till the Revolution. It is not therefore, perhaps, so accurate to say that they established the laws of England here, as to say, that they were subject to the laws of England. When the}' left one portion of its territory, they were alike subject, on their transit and when they arrived at anotlier portion of the English territory ; and therefore always, till the Declaration of Independence, they were governed and protected by the laws of Eng- land, so far as those laws were applicable to their state and condition. Under this category must come all municipal laws regulating and securing the rights of real and personal property, of person and per- sonal liberty, of habitation, of reputation and character, and of peace. The laws designed for the protection of reputation and character, and to prevent private quarrels, affrays, and breaches of peace, by punish- ing malicious libel, were as important and as applicable to the state and condition of the colonists as the law punishing violations of the 10 COMMOXWEALTII V. CHAPMAN. [CHAP, I. rights of property, of person, or of habitation; that is, as laws for piinisliing larceny, assault and battery, or burglary. Being part of the common law of England, applicable to the state and condition of the colonists, they necessaril}' applied to all English subjects and terri- tories, as well in America as in Great Britain, and so continued applic- able till the Declaration of Independence. This, therefore, would be evidence, a priori, that they were in force, and were adopted by the clause cited from the constitution, except so far as modilied by the excepting clause. That the law of libel existed, at the first migration of our ancestors, and during the whole period of the colonial and provincial governments, is proved by a series of unquestionable authorities.^ Exceptions overruled.'^ 1 The learned Chief Justice proceeded to show that these authorities had been followed in Massachusetts since the adoption of the constitution. — Ed. 2 See to the same effect State v. Cawood, 2 Stew. (Ala.) 360 ; State v. Danforth, 3 Conn. 112 ; State v. Davis, 2 Penne. (Del.) 139; State v. Buchanan, 5 H. & J. (Md.) 317 ; Smith v. People, 25 III. 17 ; State v. Pulle, 12 Minn. 164 ; Terr. v. Ye Wan, 2 Mont. 478 ; State v. Rollins, 8 N. H. 550 ; Com. v. McHale, 97 Pa. 397 ; State v. Williams, 2 Overt. (Tenn.) 108 ; State v. La Forrest, 71 Vt. 311 ; Houston v. Com., 87 Va. 257 ; NichoUs v. State, 68 Wis. 416. In State v. Danforth, supra, Hosmer, C. .)., said : "It is indispensably necessary that there should exist a common law, on the broad principles of public convenience and necessity, defining crimes and prescribing ade<|uate punishments. To determine, by statute, every offence and direct the punishment which shall be inflicted, has not, so far as I know, ever been attempted, and would be nearly impracticable. The com- munity must, at least, be left exposed to injuries the most atrocious ; and the evils resulting would be much greater, than any mind will anticipate, from the exercise of a sound discretion, in the application of principles and analogies which the common law supplies." — Ed. CHAP, l] BLANKARD V. GALDY. 11 BLANKARD v. GALDY. King's Bench. 1693. [Reported 2 Salkeld, 411.] In debt on a bond, the defendant prayed oj-er of the condition, and pleaded the statute E. 6. against buying offices concerning the admin- istration of justice ; and averred, That this bond was given for the purchase of the office of provost-marshal in Jamaica, and that it con- cerned the administration of justice, and that Jamaica is part of the revenue and possessions of the Crown of England : Tlie plaintiff replied, that Jamaica is an island beyond the seas, which was conquered from the Indians and Spaniards in Queen Elizabeth's time, and the inhabit- ants are governed by their own laws, and not by tlie laws of England : The defendant rejoined, That before such conquest they were governed by their own laws ; but since that, by the laws of England : Shower argued for the plaintiff, that, on a judgment in Jamaica, no writ of error lies here, but only an appeal to the Council ; and as they are not represented in our Parliament, so they are not bound by our stat- utes, unless specially named. ^^ide And. 115. Pemberton contra argued, that by the conquest of a nation, its liberties, rights, and prop- erties are quite lost ; that by consequence their laws are lost too, for the law is but the rule and guard of the other ; those that conquer, can- not by their victory lose their laws, and become subject to others. Vide Vaugh. 405. That error lies here upon a judgment in Jamaica, which could not be if they were not under the same law. Et per Holt, C. J. & Cur., First, in case of an uninhabited country newl}' found out by English subjects, all laws in force in England are in force there ; so it seemed to be agreed. Secondl}', Jamaica being conquered, and not pleaded to be parcel of the kingdom of England, but part of the possessions and revenue of the Crown of England, the laws of England did not take place there, until declared so by the conqueror or his successors. The Isle of Man and Ireland are part of the possessions of the Crown of England : 3'et retain their ancient laws : That in Davis 36. it is not pretended, tliat the custom of tanistry was determined hy the conquest of Ireland, but by the new settlement made there after the conquest : That it was im- possible the laws of this nation, by mere conquest, without more, should take place in a conquered countr}- ; because, for a time, there must want officers, without which our laws can have no force : That if our law did take place, yet they in Jamaica having power to make new laws, our general laws ma\' be altered by theirs in particulars; also the}' held, that in the case of an infidel country, their laws hs conquest do not entirely cease, but only such as are against the law of God ; and 12 FIRST NATIONAL BANK V. KINNER. [CHAP. I. that in such cases where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity. Judgment pro quer} FIRST NATIONAL BANK v. KINNER. Supreme Court of Utah Territory, 1873. [Reported 1 Viah 100.] Emerson, J. I;i American Ins. Co. v. Canter, 1 Pet. 511, the court, by Judge Marshall, say, substantially, that the laws of Florida, as they were when the Territory was ceded, so far as not inconsistent with he Constitution and Laws of the United States, continued in foi-ce until altered by the newly created power of the State. (See, also. United States v. Powers, 11 How. 570; Strothers v. Lucas, 12 Pet. 410, 436.) This appears to be the settled doctrine in regard to con- quered and ceded Territory in the absence of special treaty stipulation. It applies to territory acquired from Mexico, since the treaty of Guada- loupe made no special proN-ision on the subject. Utah was embraced in that acquisition. As in Florida the pre-existing law was Spanish, so in Utah, it was Mexican, and in both cases the laws were derived mainly from the laws of Rome. In neither did the English common law, or the Statute of Frauds, prevail. Congress made no special change, and the Territorial Legislature, upon whom authority was conferred, have made no express enactment upon the subject. This Territory was first settled in 1847, and from that time up to the acquisition and treaty in 1848, the settlers were comparatively few in number. There were no settled laws, usages, and customs among them. They came here as American citizens, under the flag, and claiming the protection of the L'nited States Government. The particular class of persons forming the great, if not the entire bulk of emigrants, claim to have furnished troops from among their own numbers to assist this Government in its war against Mexico. At the time of the acquistion and treaty, they could not claim Mexi- can citizenship, and have never adopted its laws and customs. Soon after the change of sovereignty by the treaty, emigrants in ^ Another report of the same case may be found in 4 Mod. 222. In that case the Court 16 reported to have said: " And therefore it was held, that Jamaica was not gov- erned by the laws of England after the conquest thereof, till new laws were made: for they had neither sheriff or counties; they were only an assembly of people which are not bound by our laws, unless particularly mentioned. In Barbadoes all freeholds are subject to debts, and are esteemed as chattels till the creditors are satisfied, and then the lands descend to an heir; but the law is other v\ise here; which shows that though that island is parcel of the possessions of England, yet it is not governed by the laws made here, but by their own particular laws and customs." Arc. Earl Derby's Case, 2 And. 116; Mem- 2 P. Wms. 75. See Cross v. Harrison, 16 How. 164; Airhart v. Massieu, 98 U. S. 491.— Ed. CHAP. I.] CHA.FPELL V. JARDINE. 13 large numbers flocked in from the States and surrounding Territories, and for many years there has been an organized community. When we turn to the communities from whence these emigrants pro- ceeded, we find that the\- differed one from another, more or less, in regard to their laws and institutions. No two are alike. In the most, it is true, man}' common-law principles and doctrines were in force. Still the body of the common law in each was peculiar to the particular State, and it was rather the common law of the State than the English common law. In some, the English statutes had been received as common law ; in others, not. These diversities make it impossible to assume that any specific body of the common law was transplanted to the Territory b}^ the fact of" immigration. But one course was open, and that was for the whole body of the people to agree, expressly or tacitly, upon a common measure. It was to be expected that the emigrants would not be contented with the loose and alien institutions of an outlying Mexican department, and they have not been. They have tacitly agreed upon maxims and principles of the common law suited to their conditions and consistent with the Constitution and Laws of the United States, and they onl\- wait recognition by the courts to become the common law of the Territory-. When so recognized, they are laws as certainly as if expressly adopted by the law-making power. CHAPPELL V. JARDINE. Supreme Court of Errors of Connecticut. 1884. [Reported 51 Connecticut, 64.] Park, C. J.* This is a suit for the foreclosure of certain mortgaged premises, constituting an island, known as Ram Island, in Long Island Sound. The complaint alleges that the land mortgaged, at the time the deed was given, lay in the town of Southhold, Suffolk County, in the State of New York, and it is averred that the mortgage was re- corded in the oflflce of the clerk of Sufl^olk County in that State. It is further alleged that Ram Island, by the recent establishment of the boundary line between the State of New York and this State, has be- come a part of the town of Stonington in this State. The complaint is demurred to, so that the averment stands admitted that the island was, when the mortgage was made, a part of the State of New York. We have heretofore held (Elphick v. Hoffman, 49 Conn. 331) that the boundary agreed upon by the joint commission of the two States and established by the legislative acceptance of both States, was to be regarded as presumably a designation and establishment of the pre- 1 Part of the opinion is omitted. — Ed. 14 CHAPPELL V. JARDINE. [CHAP. L existing boundary line which had become lost, and not as the establish- ment of a new line, leaving the matter open to proof in special cases. If we should apply that rule here, and consider the island in question as having been legallv a part of this State when the mortgage was made, we should at once encounter another question of a serious nature. There can be no question that whatever has been tlie de Jure jurisdic- tioi; over the island, it has been for many years within the de facto jurisdiction of the State of New York; and we should be compelled to determine the legal effect upon this mortgage of that de facto jurisdic- tion. We have thought it as well, therefore, to take the case as the parties have themselves presented it, the plaintiff by the averments of his com- plaint and the defendants by tlie admissions of their demurrer, and regard the island in question as having been within the State of New York when the mortgage was made, and afterwards brought within Lhis State by the establishment of the boundary line. Indeed as the proceeding is in error we cannot properly govern ourselves by anything ".)Ut the record as it comes before us. And in treating the island as within the State of New York when the mortgage was made we are regarding the contract and the rights ot the parties under it, precisely as they themselves understood them at the time. The mortgaged premises having been in the State of New York when the mortgage was made, it is of course to be governed in its construc- tion and effect by the laws of that State then in force. In McCormick V. Sullivant, 10 Wheat. 192, the court saj' : "It is an acknowledged principle of law that the title and disposition of real property is exclu- sively subject to the laws of the country where it is situated, which can alone prescribe the mode by which a title to it can pass from one per- son to another." The same doctrine is held in United States v. Crosby, 7 Cranch, 115, Kerr v. Moon, 9 Wheat. 565, Darby v. Mayer, 10 id. 465, and in many other cases. Indeed the doctrine is unquestioned law everywhere. Now, according to the laws of the State of New York then and still in force, a mortgage of real estate creates a mere chose in action, a pledge, a security for the debt. It conveys no title to the property. The claim of the mortgagee is a mere chattel interest. He has no right to the possession of the property. The title and seisin remain in the mortgagor, and he can maintain trespass and ejectment against the mortgagee, if he takes possession of the property without the consent of the mortgagor. This appears clearly from the following cases. ^ It follows, therefore, that while tlie land in question remained in the State of New York, it was incumbered by a mortgage of this character ; ^ The learned judge here cited and discussed the following cases : Gardner v. Heartt,, 3 Den. 232 ; Power v. Lester, 23 N. Y. 527 ; Triniin v. Marsh, .54 N. Y. 599 ; Jackson V. VVilhird, 4 Johns. 42 : Astor i;. Hoyt, 5 Wend. tj03 ; Kortriglit v. Cady, 21 N. Y. 343 ; Merritt v. Bai-tholick, 36 N. Y. 44. — Ed. CHAP. I.] CHAPPELL V, JARDINE, 15 and when it came into this State it bore with it the same burden pre- cisel}'. There was nothing in the change of jurisdiction that could affect the contract of mortgage that had been made between the parties. The title to the property continued to remain in the mortgagor, and it remains in him still. Tliis is clear. The laws of tliis State could not make a new contract for the parties or add to one already made. They had to take tlie contract as ihe\' found it. Now it is clear tiiat there is no remedy by way of foreclosure known to our law which is adapted or appropriate to giving relief on a mort- gage of this character. Our remedy is adapted to a mortgage deed which convt^ys the title of the property to the mortgagee, and when the law day ha.^ passed, the forfeiture, stated in the deed, becomes absolute at law, and vests a full and comj)lete title in the mortgagee, with the exception of the equitable right of redemption, which still remains in the mortgagor. The oliject of the decree of foreclosure is, to extin- guish this right ot redemption if the mortgage debt is not paid bj' a speciQed time. Tlie decree acts upon this right onh'. It conveys nothing to and decrees nothing in the mortgage if the debt is not paid. After the law da^' has passed the right of redemption becomes a mere cloud on the title the mortgagee then has, and when it is removed his title becomes clear and perfect. Phelps v. Sage, 2 Day, 151 ; Roath (V. Smith, 5 Conn. 136 ; Chamberlin v. Thompson, 10 id. 244 ; Porter V. Seeley, 13 id. 564; Smith if. Vincent, 12 id. 1; Doton v. Russell, 17 id. 151; Cross v. Robinson, 21 id. 379; Dudley v. Caldwell, 19 id. 218 ; Colwell v. Warner, 3G id. 224. What effect would such a decree produce upon a mortgage like the one under consideration, where the legal title remains in the mortgagor, and nothing but a pledgee's interest is in the mortgagee, even after the debt becomes due? It could onlj' extinguish the right of redemption, if it could do that. It could not give the mortgagee the right of pos- session of tiie propert}', for the mortgagor has still the legal title, which carries with it the right of possession. It would require another pro- ceeding in equity, to say the least, to dispossess him of that title, and vest it in the mortgagee. Hence it is clear that full redress cannot be given the plaintiff in this proceeding. But the plaintiff has a lien on the property in the nature of a pledge to secure payment of the mortgage debt. And although our remedj' of strict foreclosure ma}* not be adapted to give redress to the plaintiff through the medium of such a lien, still a court of equit}' can devise a mode that will be appropriate ; for it would be strange if a lawful lien upon property to secure a debt could not be enforced according to its tenor by a court of chanceiy. It is said that every wrong has its remedy ; so it may be said that every case requiring equitable relief has its corresponding mode of redress. We have no doubt that a court of equity has the power to sui^ject the property in question to the pay- ment of tliis debt, upon a proper complaint adapted to the purpose. When personal property is pledged to secure the payment of a debt, it 16 MORTIMER V. NEW YORK ELEVATED RAILROAD CO. [CHAP. I. may be taken and sold, that payment maj- be made, after giving the pledgor a reasonable opportunity for redemption. So here, we think a similar course might be taken with this property. Such a course would fall in with the original intent of the parties, and with tlie civil code and mode of procedure of the State of New York. Modes of redress in that State have of course no force in this State, but such a mode of procedure seems to be adapted to a case of this character. And we fm-ther think that on an amended complaint, setting forth all the essential facts, and praying that if there shall be a default in re- deeming the property during such time as the court shall allow for redemption, then the right of redemption shall be forever foreclosed, and the legal title and possession of the property be decreed in the mortgagee, such course might be taken. We think either of the modes suggested might be pursued ; but inas- much as the course which has been taken leaves the legal title and pos- session of the property in the mortgagor, we think the court erred in holding the complaint sufficient, and in passing the decree thereon. There is error in the judgment appealed from, and it is reversed, and the case remanded. In this opinion the other judges concurred. MORTIMER V. NEW YORK ELEVATED RAILROAD CO. Superior Court of the City of New York. 1889. [Reported 6 New York Supplement, 898.] Freedman, J. The claim made in this case b}- and on behalf of the elevated railway companies is that the absolute fee of the street known as the "Bower}'" was, prior to the surrender of the Dutch forces to the English in 1064, in the Dutch government; that such fee thereafter went to the State or to the cit}' of New York so abso- lutely, that abutting owners never had, and do not now have, any ease- ment of any kind in said street, and that, the elevated railway running through the Bowery having been constructed with the consent of both the city and the State, neither its owners nor its lessees are liable for any injury inflicted upon abutting property by reason of the construc- tion and operation of the railway. The claim of the English that they were the owners, b\' right of discovery, under governmental authority, of the land of which the present city of New York forms a part, and that this gave them such exclusive ownership that the Dutch government acquired no title to the land which can be recognized, has been fully set forth in the opin- ion of Judge TuuAx. I concur in his remarks as far as they go, but wish to add the following, viz. ; — • , CHAP. I.] MOKTIMEK V. NEW YORK ELEVATED RAILROAD CO. 17 The claim of the English, it is true, has occasionally been criticised on the iiround that neither of the Cabots landed in or near New York, or saw the coast of New York. The right of discovery is not recog- nized in the Roman law unless followed by occupation, or unless the intention of the sovereign or State to take possession be declared or made known to the world. And it must be conceded that modern diplomatists and publicists incline to the opinion that mere transient discovery amounts to nothing unless followed in a reasonable time by occupation and settlement, more or less permanent, under the sanction of the State. But the question in the case at bar is not to be decided according to the rules of the international law of the present time. It is a question purelj- between the public authorities of the State of N6W York and citizens of the same State, and as such it is controlled by the decisions referred to by Judge Truax, to the effect that what the English did do was sufficient to give them title by discovery, " and that such title is superior to the Indian title. These decisions proceeded upon the theory that the claim of the Dutch was contested by the English from the very start, not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title ; and that the claim of the English was finally decided in their favor by the sword. That being so, it follows that, in contemplation of present law, neither the Dutch nor the Roman law ever prevailed in tlie State of New York de Jure, and that the common law of England must be deemed to be the origi- nal source of all our law. And it further follows that the foundations of the rights of owners of land abutting on a street laid out while the Dutch were in possession, as against the city or the State of New York, rest upon the English common law, and that they are not to be af- fected by the Dutch or Roman law. Reported cases in which the validit}- of Dutch grants was upheld between individuals have no application to the present controvers)-. Now, under the English common law, the presumption is that the owners of lands 13'ing on a highway are the owners of the fee of the highway ; that the owners on eacli side of the highwa}' own the soil of the highway' in fee to the centre of the highway ; and that the rights of the public in and to the highway are no higher or other than those of a mere easement. Wager v. Railroad Co., 25 N. Y. 529. This presumption applies as well to the streets of a city as to a country highway. Bissell v. Railroad Co., 23 N. Y. 61. This presumption of law is founded on the supposition that the wa}' was originally granted bj' the adjoining owners in equal proportions. Watrous y. Southworth, 5 Conn. 305. But the presumption may be rebutted by proof to the contrar}-, and it is rebutted by the production of a deed under which the owner derives title grantina: the land to the side of the street only. Under the operation of this rule, and there being no proof of alienation or escheat requiring a different conclusion, it must be assumed in this case that the original grantors from whom plaintiffs' 18 MORTIMER V. NEW YORK ELEVATED RAILROAD CO. [CHAP. L title has been derived owned the soil of the Bowery- in front of the premises in suit to the centre of the street. But even if the title ot the P^nglish rested not in discovery, but in conquest, and the English, upon the surrender b}- tlie Dutch in 1G64, acquired from the Dutch a title to the then existing streets as absolute as under the Roman law the title of the government to a militar}' highway was, the fact would not improve the position of the defendants. Upon receiving such title the English could do with it what they pleased. They were not bound to enforce it against abutting owners, as the Dutch government might have enforced it: The presumption is that they took the title and the streets to be iield by them according to their own laws, and as matter of fact they thereafter so dealt with said streets as to adnnt of no other conclusion. The province having been granted by Charles n. to his brother, the Duke of York, by the charter of 1664, several months before the surrender to Sir Richard Nicolls, the grant, in order to remove all doubt as to its validity, was afterwards confirmed by the charter of 1674, also granted to the Duke of York. The object of both charters was to enable the Duke of York to plant a colony on this continent. The charter of 1664, issued nnder the great seal of Eng- land, contained a provision that the statutes, ordinances, etc., to be established by the Duke in the new country, " should not be contrary to, but as nearly as might be agreeal)le to, the laws, statutes, and government of the realm of England." This charter was, therefore, in itself, an explicit declaration of the King's will that the laws of England should be established in the colony, and that the laws of the Dutch settlers should not be retained. The consequence was that, having obtained the lands, the English held them, not under the Dutch or the civil law, but under the common law of their own coun- try. English law governed English land, so that, even if an absolute title to a street was obtained, the street was ever thereafter treated as an English street, under the common law.-^ 1 The learned judge then expressed the opinion that by subsequent acts of the Pro- prietor and of the State the city lost its rights, if any, to the legal fee. In his concurring opinion Truax, J., said : " I am of the opinion that the fee of the Bowerj-, and of the other streets in the city of New York that are known as Dutch streets, never was in the Dutch government ; and that it was, prior to the Revolution, bound by the rules of the common law, and not by the rules of the Dutch civil law. While the Dutch were in actual possession this execution of the common law was suspended, just as, during the late Rebellion, this execution of the laws of the United States could not be enforced in some of the southern States. But, said the Supreme Court of the United States in Ketchum v. Buckley, 99 U. S. 188, " the same general form of government, the same general law for the administration of justice and the protection of private rights which had existed in the States prior to the Rebellion, re- mained during its continuance and afterwards." See Kelchuiii v. Biu:kleij, 99 U. S. 188, and cases cited. — Ed. CHAP. I.] MCKENNON V. WINN. 19 McKENNON v. WINN. Supreme Court of Oklahoma Territory. 1893. [Reported 1 Oklahoma Reports, 327.] BuRFORD, J.^ The appellant filed his, complaint in the court below to enforce the specific performance of a contract for the conveyance of real estate situated in Oklahoma City, Oklahoma County, Oklahoma Territory'. A demurrer was filed to tiie complaint, alleging as grounds : First. That the court has no jurisdiction of the person of defendant, or the subject of the action. Second. That the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained, to which the appellant excepted and brings the case to this court b}- appeal. . . . The second ground for demurrer presents two questions : First. Can a parol contract for the conveyance of real estate, or an interest therein, made after the settlement of this country, and prior to the adoption of our organic act, be enforced ? Second. Is a contract for the conveyance of real estate, entered into before title is acquired from the United States, and to be executed after title is acquired, void, as against public policy? The first proposition seems to be settled by the adjudicated cases and text writers in favor of the appellant. " Every contract, on what- ever subject, may be in oral words, which will have the same efl["ect as if written, except when some positive rule of the common or statutory law has provided otherwise." Bish. Cont. § 153; Mallory v. Gillett, 21 N- Y. 412; Wyman v. Goodrich, 26 Wis. 21 ; Green v. Brookins, 23 Mich. 48 ; White v. Maynard, 111 INIass. 250. By the common law, prior to the enactment of the statute of frauds (29 Car. II. c. 3, A. D. 1676), contracts for the sale of real estate, or an interest therein, were not required to be in writing. Bish. Cont. § 1231 ; 4 Kent Com. p. 450. The English-speaking people brought the common law to America with them, in the first settlement of the colonies ; and it has prevailed in all the States and Territories, modified b}' legislative acts, local conditions, and such of the English statutes adopted prior to the settlement of our colonies as were of genei'al application, and suited to our conditions, except in some portions where the French or civil law prevailed. At the time of the settlement and discovery of Ameiica the statute of frauds had not been adopted, and has only become the law of the United States, or of our several States and Territories, by legislative enactment. This leads us to the inquiry, Did the common law prevail in the Territory in April, 1889? It is contended that prior to tlie settlement of Oklahoma, and until the same was superseded by statutory laws, * Part of the opiuiou is omitted. — Ed. 20 McKENNON V. WINN. [CHAP. I. the Code Napoleon, or civil law, prevailed. Whatever may have been the laws of the countiy now known as Oklahoma, the}- ceased to operate in the region originally comprising the Indian Territory when the Territory ceased to be a part of the Territory of Louisi- ana, and the laws of the Territory of Indiana and the Territory of Missouri, which may have once prevailed in said region, became inoperative in and ceased to have an}- force or effect in the Indian Territory, when That Territor}' ceased to be a part of said Territories. Railroad Co. n. O'Loughlin, 49 Fed. Rep. 440. There was no law in the Indian Territory regulating the making of contracts at the time of the approval of the Act of Congress establishing a United States dis- trict court in said Territory by the act of March 1, 1889. 25 Stat. 783. Congress, with the assent of the Indians, created the court for the whole of the Indian Territory, which included Oklahoma, and con- ferred on it jurisdiction in all civil cases between citizens of the United States who are residents of the Territory, or between citizens of the United States or of oiiy State or Territory, and an}' citizen of, or person residing or found in, the Indian Territory. It gave the court author- ity, and imposed upon it the duty, to apply the established rules and principles of the common law to tiie adjudication of those- cases of which it was given jurisdiction. Pyeatt v. Powell, 51 Fed. Rep. 551. But if it be held that the establishment of a United States court in the Indian Territory did not put the common law in force in said Territory, except in so far as was necessary to execute the powers of said court, and for the adjudication of such cases as actually went into that forum, then there was no law in Oklahoma, at tlie date of its settlement, regulating the making of contracts. If this should be conceded, then it necessarily follows, on principle, that when people from all parts of the United States, on the 22d day of April, 1889, settled the country known as Oklahoma, built cities, towns, and villages, and began to carry on trade and commerce in all its various branches, they brought into Oklahoma, with them, the estabhshed principles and rules of the common law, as recognized and promulgated by the American courts, and as it existed when imported into this country by our early settlers, and unmodified by American or English statutes. So that, in any event, the common law prevailed in Oklahoma at the time the con- tract between the appellant and appellee was entered into ; and as, at common law, contracts for the sale and conveyance of real estate were not required to be in writing, the contract mentioned in the complaint may be enfoi'ced, unless void for other reasons.^ 1 The contract was lielJ not to be void on the Erround alleged: the court followed on this point Lamb v. Davenport, 18 Wall. 307. — Ed. CHAP. I.] LAWTON V. STEELE. 21 LAWTON V. STEELE. Court of Appeals, New York, 1890. [Reported 119 A'. Y. 226.] This action was brought to recover the value of sixteen hoop or fyke nets belonging to plaintiffs, which were destroyed by defendant. Andrews, J. The point of difference between the trial court and the General Term relates to the constitutionality of the second section of the Act of 1880, as amended in 1883.^ That section is as follows: " Sec. 2. Any net found, or other means or device for taking or capturing fish, or whereby they may be taken or captured, set, put, floated, had, found or maintained in or upon any of the waters of this state, or upon the shores or islands in any waters of this state, in violation of any exist- ing or hereafter enacted statutes or laws for the protection of fish, is hereby declared to be, and is a public nuisance, and may be abated and summarily destroyed by any person, and it shall be the duty of each and every (game and fish) protector aforesaid and of every game constable, to seize and remove and destroy the same, . . . and no action for damages shall be maintained against any person for or on account of any such seizure or destruction." The defendant justi- fied the seizure and destruction of the nets of plaintiff, as a game protector, under this statute, and established the justification, if the legislature had the constitutional power to authorize the summary remedy pro\'ided by the section in question. The trial judge held the act in this respect to be unconstitutional, and ordered judgment in favor of the plaintiff's for the value of the nets. The General Term sustained the constitutionality of the statute and reversed the judg- ment. We conciu* with the General Term for reasons which will now be stated. The legislative power of the state which by the Constitution is vested in the senate and assembly (§ 1, art. 3), covers every subject which in the distribution of the powers of government between the legislative, executive and judicial departments, belongs by practice or usage, in England or in this country, to the legislative department, except in so far as such power has been withheld or limited by the Constitution itself, and subject also to such restrictions upon its ex- ercise as may be found in the Constitution of the United States. From this grant of legislative power springs the right of the legislature to enact a criminal code, to define what acts shall constitute a criminal offense, what penalty shall be inflicted upon offenders, and generally to enact all laws which the legislature shall deem expedient for the protection of public and private rights, and the prevention and pun- ishment _of public wrongs. The legislature may not declare that to ^ Only so much of the case as relates to the power to enact a statute is printed. — Ed. 22 LEE V. BUDE AND TORRINGTON JUNCTION RAILWAY. [ciTAr. L be a crime which in its nature is and must be under all circumstances innocent, nor can it in defining crimes, or in declaring their punish- ment, take away or impair any inalienable right secured by the Con- stitution. But it may, acting within these limits, make acts criminal which before were innocent, and ordain pimishment in future cases where before none could have been inflicted. This, in its nature, is a legislative power, which, by the Constitution of the state, is com- mitted to the discretion of the legislative body. (Barker v. People, 3 Cow. 686; People v. West, 106 N. Y. 293.) The act in question de- clares that nets set in certain waters are public nuisances, and author- izes their summary destruction. The statute declares and defines a new species of public nuisance, not known to the common law , nor declared to be such by any prior statute. But we know of no limi- tation of legislative power which precludes the legislature from en- larging the category of public nuisances, or from declaring places or property used to the detriment of public interests or to the injury of the health, morals or welfare of the community, public nuisances, although not such at common law. There are, of course, limitations upon the exercise of this power. The legislature cannot use it as a cover for withdrawing property from the protection of the law, or arliitrarily, where no public right or interest is involved, declare property a jiuisance for the purpose of devoting it to destruction. If the court can judicially see that the statute is a mere evasion, or was framed for the purpose of indi\idual oppression, it will set it aside as unconstitutional, but not otherwise. {In re Jacobs, 98 N. Y. 98; Mugler v. Kansas, 123 U. S. 661.) LEE I'. BUDE AND TORRINGTON JUNCTION RAILWAY. Court of Common Pleas, 1871. [Reported L. R. 6 C. P. 576.] WiLLES, J.^ This is an application for a writ of sci. fa. to try the question whether two persons as shareholders in the Bude and Tor- rington Junction Railway Company are bound to pay to the plaintiffs so much as may remain unpaid upon their respective shares, in dis- charge of a debt in respect of which the plaintiffs have obtained a judgment against the company pursuant to 8 & 9 Vict. c. 16, s. 36. . . . It is further urged that the company was a mere nonentity, and there never were any shares or shareholders. That resolves itself into this, that parliament was induced by fraudulent recitals (intro- duced, it is said, by the plaintiffs,) to pass the Act which formed the company. I would observe, as to these Acts of Parliament, that thev are the law of this land; and we do not sit here as a court of ' Part of the opinion only is given. — Ed. CHAP. I.] STATE V. KNIGHT. 23 appeal from parliament. It was once said, — I think in Hobart — that, if an Act of Parliament were to create a man judge in his own case, the Court might disregard it. That dictum, however, stands as a warning, rather than an authority to be followed. We sit here as servants of the Queen and the legislature. Are we to act as regents over what is done by parliament with the consent of the Queen, lords, and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it; but, so long as it exists as law, the Courts are bound to obey it. The proceedings here are judicial, not autocratic, which they would be if we could make laws instead of administering them. The Act of Parliament makes these persons shareholders, or it does not. If it does, there is an end of the question. If it does not, that is a matter which may be raised by plea to the sci. fa. Having neglected to take the proper steps at the proper time to prevent the Act from passing into a law, it is too late now to raise any objections to it. STATE V. KNIGHT. Superior Colrt of North Carolina. 1799. [Reported 2 Ilaijwood, 109.] He was indicted of passing counterfeit bills of credit, of the likeness of the genuine bills of credit of this state, in Virginia. The indictment was drawn upon the Act of 1784, c. 2.5, § 4 : "• And whereas tliere is reason to apprehend that wicked and ill-disposed persons resident in tlie neighboring states make a practice of counterfeiting tlie current bills of credit of this state, and by themselves or emissaries utter or vend the same with an intention to defraud the citizens of this state : Be it tlierefore enacted tliat all such persons shall be subject to the same mode of trial, and on conviction liable to the same pains and penalties, as if the offence had been committed within the limits of this state, and be prosecuted in the Superior Court of any district within this state." And he was convicted. Per curiam. This state cannot declare that an act done in Virginia b}'^ a citizen of Virginia shall be criminal and punishable in this state. Our penal laws can only extend to the limits of this State, except as to our own citizens. But granting that our Legislature could enact laws for the punishment of offences committed in Virginia, still this clause only extends by implication to acts done in Virginia ; and no penal law can be construed by implication, nor otherwise than by the express letter. He was discharged.' 1 Ace. People v. Merrill, 2 Park, 590. — Ed. 24 HANKS V. STATE. [CHAP. L- HANKS V. STATE. Court of Appeals of Texas. 1882. [Reported 13 Tex. App. 289.] White, P. J. There is but a single question wliich we think is in- volved in and requires discussion on this appeal. Appellant and one P. Dillman were jointly indicted in the District Court of Travis County for the forgery of a transfer of a land certificate for a league and labor of land in the State of Texas. It is alleged in the indictment that the acts constituting the forgery were all committed in Caddo parish, in the State of Louisiana. No act or thing Connected with the execution of the forger}- is charged to have been done in Texas ; but the crime and injury, so far as this State is concerned, are averred to consist in the fact that the said forgery in Louisiana '"did then and there relate to and affect an interest in land in the State of Texas, . . . and would, if the same were true and genuine, have transferred and affected certain property, to wit, a certain land certifi- cate, number 222, for one league and labor of land in the State of Texas," etc. This indictment was brought under Article 451 of the Penal Code. B}- Article 454 of the Code it is declared that "persons out 'of the State may commit and be liable to indictment and conviction for com- mitting anv of the offences enumerated in this chapter which do not in their commission necessarily require a personal presence in this State, the object of this chapter being to reach and punish all persons oflJending against its provisions, whether within or without this State," etc. It was made a ground both in the motion to quash the indictment and in arrest of judgment, and is again ui'gentl}' insisted upon in the able brief of counsel for appellant, that the facts alleged, if true, would constitute an offence against the sovereign State of Louisiana alone, and one of which the courts of this State would have no jurisdiction. If the position thus assumed in behalf of appellant be correct, then the Legislature had no authority to pass the act quoted, and the same is an absolute nullity. Can this proposition be maintained? It cer- tainh' cannot be found in any constitutional inhibition, State or Federal, depriving the Legislature of the authority, and unless there is some authority of law superior to the right of a State Legislature, which could and should control the action of the latter within the scope of its constitutional powers, we cannot well conceive how its enactments, if reasonable and consistent with that power, could be held inoperative and nugatory. Two authorities, which are to the effect that " the Legislature of one State cannot define and punislf crimes committed in another State," are mainly relied upon. The leading one is the case of the State v. Knight, taken from 2 Ha3'wood, and reported in Taylor's North Carolina Re- CHAP. I.] HANKS V. STATE. 25 ports, page 44. The other is People i\ Merrill, 2 Park's Criminal ReiDorts, 590. The defendant in the first case was indicted under a statute the words of which were : " And wliereas there is reason to apprehend that wicked and ill disposed persons resident in the neigh- boring States make a practice of counterfeiting the current bills of credit of this State, and In' themselves or emissaries utter or vend the same, with an intention to defraud the citizens of this State : Be it enacted, etc., that all such persons shall be subject to the same mode of trial, and on conviction liable to the same pains and penalties a,s if the offence had been committed within the limits of this State and prosecuted in the superior court of an}- district of this State." It was held that the jurisdiction to ivy in North Carolina was doubtful, and the prisoner was discharged. Mr. Wharton, in his work on the Conflict of Laws, sa^s : " The sturdiest advocates of the hypothesis that the locus delicti alone confers jurisdiction have admitted that there are cases in wliich a person whose residence is outside the territor}' may make himself, by conspiring extra- territorially to defeat its laws, infra-territorially responsible. If, for instance, a forger should establish on the Mexican side of the boundary between the United States and Mexico a manufactory for the forgery of United States securities, for us to hold that when the mischief is done he can take up his residence in the United States without even liability to arrest, would not merely expose our government to spolia- tion, but bring its authority into contempt. To sa}' that in such a ease the Mexican government can be relied upon to punish is no answer ; because, first, in countries of such imperfect civilization, penal justice is uncertain ; secondh', in cases where, in such countr}, the local com- munity gains greath' by the fraud and suffers by it no loss, the chances of conviction and punishment would be peculiarly slight ; and, thirdly, because all that the offender would have to do to escape justice in such a case would be to walk over the boundary line into the United States, where on this hypothesis he would go free." (Whart. Conflict of Laws, sec. 876.) Again he says : "• Thus it has been held that the originator of a nuisance to a stream in one country which affects such stream in another country is liable to prosecution in the latter country ; that the author of a libel uttered by him in one countrj- and published In' others in another country' from which he is absent at the time, is liable in the latter country; that he who on one side of a boundary shoots a person on the other side is amenable in the country where the blow is received ; that he who in one State employs an innocent agent to obtain goods bv false pretenses in another State is amenable in the latter State ; and that he who sells through agents, guilty or innocent, lottery' tickets in another State is amenable in the State of the sale, though he was absent from such State personally. In England we have the same principle aflSrmed by the highest judicial authority." And he quotes Lord Camp- bell as saying, •"• that a person ma}', b\- the employment as well of a conscious as of an unconscious agent, render himself amenable to the 26 HANKS V. STATE. [CHAP. I. law of England when he comes within the jurisdiction of our courts ; " and Sir R. Phillimore as saying, " It is a monstrous thing that any technical rule of venue should prevent justice from being done in this country on a criminal for an offence which was perpetrated here but the execution of which was concocted in another country." (Whart. Con- flict of Laws, sec. 877. See also Adams r. People, 1 Comstock N. Y. 173; Commonwealth <>. McLoon, 101 Mass. 1; Ham v. State, 4 Texas Ct. App. 645; Rogers v. The State, 10 Texas Ct. App. 655.) Mr. Cooley, in iiis great work on Constitutional Limitations, treating of territorial limitation to legislative authority, says: "The legislative authority of every State must spend its force within the territorial limits of the State. . . . It cannot provide for the punishment as crimes of acts committed beyond the State boundar}', because such acts, if offences at all, must be offences against the sovereignty within whose Jimits they have been done." But, after laying down this doctrine, in the very next sentence he says: " But if the consequences of an un- lawful act committed outside the State have reached their ultimate and injurious result within it, it seems that the perpetrator may be pun- ished as an offender against such State." (Cooley's Const. Lim., 4 ed., pp. 154-55.) If this latter rule be the law, then it is a solecism to say that the legislature cannot so declare it by express enactment. Story, in his (Conflict of Laws, says: " Althougli the penal laws of every country are in their nature local, yet an offence may be com- mitted in one sovereignty in violation of the laws of another, and if the offender be afterwards found in the latter State, he may be punished according to the laws thereof, and the fact tliat he owes allegiance to another sovereignly is no bar to the indictment." (Stor}' on the Con- flict of Laws, 4 ed., section 6256.) The offence charged in the indictment against appellant comes clearlj- within the terms of Article 454 of the Penal Code. Had it been com- mitted by one of our own citizens within this State, there then could be no question as to his liability. Here, the defendant in effect says: " You ma}' try and convict your own citizens for the same act I have committed, but you cannot try and punish me, because what I liave done, though equally as violative of the spirit and letter of the law, is still not triable in your court because it was committed in another State, and your Legislature could not pass a law which could embrace nie within its pains and penalties." We can see no valid reason why the Legislature of the State of Texas could not assert, as it has done in Article 454 svpra, her jurisdiction over wrongs and crimes with regard to the land titles of the State, no matter whether the perpetrator of the crime was at the time of its consummation within or without her terri- torial limits. Such acts are offences against the State of Texas and her citizens only, and can properly be tried only in her courts. It may in fact be no crime against the State in which it is perj)etrated ; and if it is, under such circumstances as we are considering, that other State would have no interest in punishing it, and would rarely if ever do so. CHAP. I.] HANKS V. STATE. 27 When this forgery was committed in Louisiana, eo instanti a crime was committed against, and injur}- done to, the State of Texas, because it affected title t6 lands within her sovereignt}'. Our conclusion is that the Legislature had authority to adopt the act in question ; that the same is in violation of no law superior thereto ; and that the jurisdiction thereby conferred can be rightly exercised by the courts of this State. The defendant appears to us to come clearh' witiiin the scope of that jurisdiction. He has been, as far as we can see, fairly and impartially tried under the law, and legally convicted according to the evidence exhibited in the record. We have found no error for which a reversal of the judgment should be had, and it is therefore affirmed. Ajfirmed. Hurt, J., dissents upon the ground that the Legislature bad no authority to pass Article 454, Penal Code. Lamar, J., in Lake County v. Rollins, 130 U. S. 662 (1889). . . . We are unable to adopt the constructive interpolations ingeniously offered by counsel for defendant in error. Why not assume that the framers of the constitution, and the people who voted it into existence, meant exactly what it says? At the first glance, its read- ing produces no impression of doubt as to the meaning. It seems all sufficiently plain; and in such case there is a well-settled rule which we must observe. The object of construction, applied to a constitu- tion, is to give effect to the intent of its framers, and of the people in adopting it. This intent is to be found in the instrument itself; and when the text of a constitutional provision is not ambiguous, the courts, in giving construction thereto, are not at liberty to search for its meaning beyond the instrument. To get at the thought or meaning expressed in a statute, a con- tract or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. If the words convey a definite meaning which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning, ap- parent on the face of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or take from it. Newell V. People, 7 N. Y. 9, 97; Hills v. Chicago, 60 Illinois, 86; Denn V. Reid, 10 Pet. 524; Leonard i\ Wiseman, 31 Maryland, 201, 204; People ('. Potter, 47 N. Y. 375; Cooley Const. Lim. 57; Story on Const. §400; Beardstown r. Virginia, 76 Illinois, 34. So, also, where a law is expressed in plain and unambiguous terms, whether those terms are general or limited, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. Ignited States v. Fisher, 2 Crunch, 358, 399; Dotrgett V. Florida Railroad, 99 i:. S. 72. 28 COMMONWEALTH V. CHURCHILL. [CHAP, I. Miller, J., in People r. Laeombe, 99 N. Y. 43 (1885). ... In the interpretation of statutes, the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances. A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is within the statute, al- though by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation; and if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the lawmakers. These general rules are upheld by numerous au- thorities. (People, ex rel. 23d Street R. R. Co. v. Commissioners of Taxes, 95 N. Y. 558; Burch v. Newbury, 10 id. 389; Oswego Starch Factory v. Dolloway, 21 id. 461; People i\'n. Y. C. R. R. Co., 13 id. 78; Donaldson v. Wood, 22 Wend. 397; Watervliet T. Co. v. McKean, 6 Hill, 619; 3 Bingham, 193; Commonwealth v. Kimball, 24 Pick. 370.) W'hile the rules stated are specially applicable in considering the phraseology of statutes, they may also be properly invoked where several statutes are passed relating to the same general subject. In Commonwealth v. Kimball (supra), it is said by Shaw, C. J., that "where any particular construction would lead to an absurd conse- quence, it will be presumed that some exception or qualification w^as intended by the legislature to avoid such conclusion." Where it is apparent that a strict construction of a statute would defeat the main purpose and object, not only of the statute, but of other legisla- tive enactments which relate to the same subject, and which have been enacted in pursuance of and according to a general purpose of accomplishing a particular result, such interpretation should not be upheld, as it would be absurd ti say that the lawmakers designed to secure a result which would be antagonistic to their plain and clear intention. COMMONWEALTH v. CHURCHILL. SuPKEME Judicial Court of Massachusetts. 1840. [Reported 2 Met. 118.] At the last September term of the Court of Common Pleas, the de- fendant was convicted on four counts in an indictment, the first of which alleged that he, " at Stoughton in said County of Norfolk, on the CHAP. I.J COMMONWEALTH V. GHUKCHILL. 29 1 6th day of March last past, did sell to one one glass of brandy to be by him, the said , then and there used, consumed, and drank ill tlie dwelling-house there situate of him the said Samuel, he the said Samuel not being then and there duly licensed, according to law, to be an innholder or common victualler; against the peace, etc., and con- trary to the statute in such case made and provided." There were five other counts similar to the first, except that diflerent kinds of spirituous liquor were alleged to have been sold to five different persons on sev- eral different days, to wit, on the 17th, 18th, 19th, 20th, and 21st of March, 1840. On two of the counts the defendant was acquitted. The defendant filed exceptions to the ruling of Strong, J., before whom the trial was had: " 1. Because the court instructed the jurv that the 2d and 3d sections of c. 47 of the Revised Statutes, on which the indictment is founded, are binding and valid, when the defendant contends that they are unconstitutional and void. 2. Because the court instructed the jur}- that those sections were still in force as law, when the defendant contends that they are repealed by subsequent legislative enactments." ^ Shaw, C. J. It appears b^' the record that the defendant was in- dicted for selling spirituous liquors without license, on the 16th dav of March last, and at several times afterwards, and that upon a trial of the indictment, in the Court of Common Pleas, he was convicted. Two exceptions were taken to the directions and opinion of that court in matter of law, upon which the case has been brought before this court, pursuant to the statute. These exceptions were as follows: 1. That the 2d and 3d sections of the 47th chapter of the Revised Statutes, upon which this prosecution is founded, are unconstitutional and void. 2. Because the court instructed the jury that these sections were in force as law, at the' time when the acts charged as offences were alleged to be done ; whereas the defendant contended that they were repealed by a subsequent act of the legislature. Upon the first no argument has been offered, and it does not seem to be insisted on. The second de- pends upon the question wiiether the statute of 1840, c. 1, passed on the 11th of February-, 1840, and which went into operation in thirty days from its passage, to wit, 13th March, 1840, simply repealing the statute of 1838, c. 157, did, by its legal operation, revive the 2d and 3d sections of the 47th chapter of the Revised Statutes. If it did, the case of the defendant was within them, the acts all beins^ charged to have been done after the 13th of March last, and the acts themselves being made punishable b}' those provisions of the Revised Statutes. It is conceded to be a maxim of the common law, applicable to the construction of statutes, that the simple repeal of a repealing law, not substituting other provisions in place of those repealed, revives the pre-existing law. As a maxim of the common law, it was in force here when the Constitution of the Commonwealth was adopted. By that 1 The arguments of counsel and part of the opinion are omitted. oO COMMONWEALTH V. CHURCHILL. [CHAP. L Constitution it was declared that " all the laws, which have heretofore been ailopted, used, and approved in the colony, province, or btate of Massachusetts Bay, and usuall}' practised on in the courts of law, shall still remain and be in full force, until altered or repealed b}' the legis- lature ; such parts only excepyted as are re^jugnant to the rights and liberties contained in this Constitution." This Constitution has been construed as adopting the great bod}' of the connnon law, with those statutes made before the emigration of our ancestors, which were made in amendment of the common law, so far as these rules and principles were applicable to our condition and form of government. Common- wealth V. Leach, 1 Mass. 59. Commonwealth v. Knowiton, 2 Mass. 534. But it was contended, at the argument, that under this provision no principle or rule of the common law could be regarded as adopted, un- less it could be shown affirmatively that it had been adjudicated before the Revolution. But we apprehend this would be much too narrow a construction. Before the Revolution, we had no regular reports of judicial decisions ; and the most familiar rules and principles of law — those which lie at the foundation of our civil and social rights — could not be so proved. No; we rely on usage and tradition, and the well known repositories of legal learning, works of approved authority, to learn what are the rules of the common law ; and we have no doubt that these were the great sources to which the above pregnant provision of our Constitution refers. Taking it, then, as well established that tlie rules and maxims of the common law referred to in the Constitution were those which our an- cestors brought W'ith them, and wliich had been, to some extent, modi- fied and adapted to our condition by the legislative jurisprudence of the colonial and provincial governments, it follows that these rules and principles were regarded as binding both upon legislators and judges in their respective departments. A part of this system are tlie well known rules of construction for the expounding of statutes, which are as much a part of every statute as its text. These are presumed to be known and kept in view by the legislature in framing the statute ; and they must be alike resarded In- judges in expounding it. It was further insisted in the argument that the legislature could not have intended, when they repealed one license law, in effect to re- establish another. But their intentions must be ascertained by their acts alone, and not by evidence aliunde. We cannot possibl}' know the intentions ol members of the legislature. ,It is the will of the aggre- gate body as expressed in the statutes which they pass, which can be regarded as having the force of law ; anv different construction would lead to the greatest confusion and uncertainty. The legislature are presumed to understand and iutiMid all consequences of their own measures ; and the only safe course is for courts of justice to expound the intentions of the legislature by their acts, and those acts construed by known and established rules of construction. CHAP. I.] ST. LOUIS, IRON MOUNTAIN & SOUTHERN EY. V. TAYLOR. 31 On the whole, the Court are of opinion that the simple repeal of St. 1838, c. 1 J7, bj that of 1840, c. 1, did revive the 2d and 3d sections of the Rev. 8tats. c. 47, and that the provisions of those sections were in force at the time of the offences charged in the indictment, and that the conviction was right. Exceptions overruled. ST. LOUIS, IRON MOUNTAIiX & SOUTHERN RAILWAY V. TAYLOR. Supreme Court of the United States, 1908. [Reported 210 U. S. 281.] Moody, J. The defendant in error, as administratrix of George W. Taylor, brought, in the Circuit Court of the State of Arkansas, this action at law against the plaintiff in error, a corporation owning and operating a railroad. Damages were sought, for the benefit of Taylor's wddow and next of kin, on account of his injury and death in the course of his employment as brakeman in the service of the railroad. It was alleged in the complaint that Taylor, while attempting, in the discharge of his duty, to couple two cars was caught between them and killed. The right to recover for the death was based solely on the failure of the defendant to equip the two cars which were to be coupled with such draw bars as were required by the act of Congress known as the Safety Appliance Law. Act of March 2, 1893, c. 196, 27 Stat. 531. . . . In the case before us the liability of the defendant does not grow out of the common-law duty of master to servant. The Congress, not satis- fied with the common-law duty and its resulting liability, has pre- scribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that "no cars, either loaded or unloaded, shall be used in interstate traffic W'hich do not comply with the standard." There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be em- ployed to confuse them or lessen their significance. The ob\'ious purpose of the legislature was to supplant the qualified duty of the common law^ with an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply w4th the standard, it \'iolates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply, that, if it be the true construction, its harshness is no con- cern of the courts. They have no responsibility for the justice or 32 VANDINE. [chap. I. unsdom of legislation, and no duty except to enforce the law as it is written, unless it is cleariy beyond the constitutional power of the lawmaking body. It is said that the liability under the statute, as thus construed, imposes so great a hardship upon the railroads that it ought not to be supposed that Congress intended it. Certainly the statute ought not to be given an absurd or utterly unreasonable interpretation leading to hardship and injustice, if any other inter- pretation is reasonably possible. But this argument is a dangerous one, and never should be heeded where the hardship would be occa- sional and exceptional. It would be better, it was once said by Lord Eldon, to look hardship in the face rather than break down the rules of law. But when applied to the case at bar the argument of hardship is plausible only when the attention is directed to the material interest of the employer to the exclusion of the interests of the employe and of the public. Where an injury happens through the absence of a safe draw bar there must be hardship. Such an injury must be an irreparable misfortune to some one. If it must be borne entirely by him who suffers it, that is a hardship to him. If its burden is transferred, as far as it is capable of transfer, to the employer, it is a hardship to him. It is quite conceivable that Congress, contemplating the inevi- table hardship of such injuries, and hoping to diminish the economic loss to the community resulting from them, should deem it wise to impose their burdens upon those who could measurably control their causes, instead of upon those who are in the main helpless in that regard. Such a policy would be intelligible, and, to say the least, not so unreasonable as to require us to doubt that it was intended, and to seek some unnatural interpretation of common words. We see no error in this part of the case. But for the reasons before given the judgment must be Reversed. /VANDINE, Petitioner. Supreme Judicial Court of Massachusetts. 1828. [^Reported 6 Pickering, 187.] Petition for a writ of certiorari to the Municipal Court of the city of Boston. Vandine was prosecuted upon a by-law of Boston, passed in April 1826, b}' which it is ordained, that no person shall remove, cart or carry through an}' of the streets, squares, lanes, or alle3S of the city, an}' house-dirt, refuse, offal, filth or animal or vegetable substance from an}' of the dwelling-houses or other places occupied by the inhabitants, in any cart, wagon, truck, hand-cart or other vehicle, unless such per- son so removing, etc. together with the cart, etc. shall be duly licensed for that employment and purpose by the mayor and aldermen, upon such terms and conditions as thev shall deem the health, comfort, con- CHAP. I.] VANDINE. 33 venience or interest of the city require, on pain of forfeiting a sura not less than three dollars nor more than twent}'. It was proved at the trial, that Vandine transported house-dirt and offal from the yards of houses to his cart standing in the streets of the city. Vandine being called on for his defence, it was agreed that he was an inhabitant of the town of Cambridge, and that he owned and kept there a large number of hogs. The judge instructed the jury that the subject of the regulation was one on which it was proper for the city to legislate. . . . He further instructed the jury that, so far as by virtue of the general laws of the Commonwealth, the city council had power to make by-laws Kor governing the city, these regulations were binding on all persons actually resident within its limits, either for business or pleasure, and whether inhabitants or strangers.^ . . . Putnam, J., delivered the opinion of the Court. The first objection is that this by-law is not binding upon strangers, if it should be considered as binding upon the citizens of Boston. Some by-laws are binding upon strangers as well as upon the inhab- itants or members of the corporation, and some are not. The distinc- tion is between corporations united as a fraternity for the purposes of business, having no local jurisdiction, and corporations having a territorial jurisdiction ; the former have not, but the latter have power to make by-laws binding upon strangers. For example: a by-law of the corporation of Trinity House, " that ever}' mariner, within twenty four hours after anchorage in the Thames, put his gunpowder on shore, does not bind, because the corporation has no jurisdiction upon the Thames." Com. Dig. Bye-law. (7 2. In the case of Dodwell v. The University of Oxford, 2 Ventr. 33, the Chancellor's Couii; of the Universit}' made a by-law, that whoever, privileged or not privileged, should be taken walking in the streets at 9 o'clock at night, having no reasonable excuse, by the proctor, etc. should forfeit, etc. And it was held that the corporation could not make a by-law binding upon an}' who were not of their body. They went beyond their jurisdiction, which could not l)e considered as extending to the inhabitants of Oxford who were not scholars. Regard is to be had to the nature of the incorporation ; if it is a banking incor- poration, for example, their by-laws must be confined to the proper mode of conducting their afil'airs. Where the corporation has a local jurisdiction, their by-laws affect all who come within it ; for example, the by-law of the city of London, that no citizen, freeman or stranger should expose any broad-cloth to sale within the city before it should be brought to Blackwell Hall to be examined whether it were saleable or not, was held binding upon strangers as well as citizens. 5 Co. 63. So in Pierce v. Bartrum, Cowp. 269, a by-law of the mayor and ^ Part of the instructions and the arguments of counsel have been omitted. — Ed. 34 VANDiNi:. [chap. I. common council of the cit}' of Exeter, that no person should slaughter beasts or Iceep swine witiiin the walls of the city, was held good against tlie defendant, who was not free of the cit}', but onl}- residing there. He was considered as an inhabitant pro hac vice. So where the cor- poration have jurisdiction over all of the same trade or profession within certain limits, as the College of Physicians have for seven miles round London ; whose bv-laws regulating the practice of physic arc binding upon all within those limits. The by-laws which are made by corporations having a local jurisdic- tion, are to be observed and obeyed by all who come within it, in the same manner as aliens and strangers within the commonwealth are bound to know and obey the laws of the land, notwithstanding they ma}' not know the language in which the}' are written. The}' receive the benefits arising from the municii)al arrangements, and are presumed to assent to them, upon the same principle which requires from them a temporary allegiance to the state for the protection it affords to them during their residence. But it is contended that this by-law is void as it is in restraint of trade, and operates as a monopoly. Every regulation of trade is in some sense a restraint upon it; it is some clog or impediment, but it does not therefore follow that it is to be vacated. If the regulation is unreasonable, it is void ; if necessar\' for the good government of the societ}', it is good. The case cited b}' the counsel for the defendant from 1 Rol. Abr. 364, was of the former character. The mayor and commonalt}' of London made a by-law, tliat no carman within the city should go with liis cart, without license from the wardens of such an hospital, under a certain penalty for each offence ; and it was held to be a void b3-law, because it was in restraint of the libert}- of the trade of a carman, and it was held to be unreasonable, because it went to the private benefit of the wardens of the hospital, and was in the nature of a monopoly. Now we think that case was rightly decided ; it was an act of oppression. We perceive no reason wli}' the wardens of the hospital should have a superintendance and control of all the business of the carmen, thus laying them under a contribution at the will of the wardens. To arrive at a correct decision whether the by-law be reasonable or not, regard must be had to its object and necessit}'. Minute regula- tions are required in a great city, which would be absurd in the country. The cases upon this subject are well collected by Baron Comyns in his Digest, title *■' Bye-law." It has been found to be reasonable in the city of London, to provide that brewers' drays should not be in the streets tiiere after eleven o'clock in the morning in summer, and one in winter; that no person should unlade coals out of a barge, if he be not of the porter's company; thus in some manner restraining trade- There have been regulations also adopted in that city, that none shall be brokers unless licensed and sworn ; that none shall be hawkers without license ; thus In some measure restraining the natural rights CHAP. I.] UNITED STATES V. WILTBERGER. 35 of the subjects. Now it is contended that the bv-law under considera- tion is in restraint, and not a mere regulation of tlic trade in which the defendant is engaged ; that he provides as good and tight carts as the Tnen do who are authorized by the city, in the performance of this labor. We do not perceive that there is an}' more reason to complain of the law requiring a license to do this work, than of the law prohibit- ing the keeping of livery stables in any place not licensed. One might just as well complain of the reguiation which prevents him from being an auctioneer without license ; and so of various other trades and con- cerns which it is found necessary to subject to such restriction. The great object of the city is to preserve the health of the inhabi- tants. To attain that, they wisely iisregard any expense which is deemed to be requisite. They might probably have these offensive substances carried out of the city without any expense, if they would permit the people from the country to take them away at such times and in such manner as would best accommodate them. Every one will see that if this business were thus managed, there would be continual moving nuisances at all times, and in all the streets of the city, break- ing up the streets by their weight and poisoning the air with their effluvia. It is obvious, that the object and interest of the city, and those of the carmen, in this concern, are extremely different. But it is contended that the city authorities may regulate strangers and un- licensed persons, in regard to the number of horses and kind of carts to be employed, just as well as the}' can carts and tlie conduct of the licensed persons. It seems to us, however, that the city authority has judged well in this matter. They prefer to employ men over whom they have an entire control by night and by day, whose services may be always had, and who will be able from habit to do this work in the, best possible way and time. Practically we tiiink the main object of the city government will be better accomplished l)y the arrangement they have adopted, than by relying upon the labor of others, against whom the government would have no other remedy than by a suit for 8 breach of contract. The sources of contagion and disease will be speedily removed in small loads, which will not injure the pavementSj nor annoy the inhabitants. We are all satisfied that the law is reason- able, and not only within the power of the government to prescribe, but well adapted to preserve the health of the city. The direction and opinion of the judge of the Municipal Court was entirely correct. UNITED STATES v. WILTBERGER SuPKKME Court of the United States. 1820. [Reported 5 [Vheaton, 7V<.] This was an indictment for manslaughter, in the Circuit Court of Pennsylvania. The jury found the defendant guilty of the offence with 36 UNITED STATES V. WILTBEKGER. [CHAP. I. which he stood indicted, subject to the opinion of the court, whether this court has jurisdiction of the case, which was as follows : The manslaughter charged in the indictment was committed by the defendant on board of the American ship The Benjaviin Rush, on a sea- man belonging to the said ship, whereof the defendant was master, in the river Tigris, in the empire of China, off Wampoa, and about 100 yards from the shore, in four and a half fathoms water, and below the low water mark, thirty-five miles above the mouth of the river. The water at the said place where the offence was committed is fresh, except in ver}' dry seasons, and the tide ebbs and flows at and above the said place. At the mouth of the Tigris the government of China has forts on each side of the river, where custom-house officers are taken in b}" foreign vessels to prevent smuggling. Tlie river at the mouth and at Wampoa is about half a mile in breadth. And thereupon, the opinions of the Judges of the Circuit Court being opposed as to the jurisdiction of the court, the question was hy them stated, and directed to he certified to this court. ^ Marshall, C. J. The indictment in this case is founded on the 12th section of the act, entitled, " An act for the punishment of certain crimes against the United States." That section is in these words: " And be it enacted, that if an}' seaman, or other person, shall commit man- slaughter on the high seas, or confederate," etc., ''such person or persons so offending, and being thereof convicted, shall be imprisoned not exceeding three 3ears, and fined not exceeding one thousand dollars." The jurisdiction of the court depends on the place in which the fact was committed. Manslaughter is not punishable in the courts of the United States, according to the words which have been cited, unless it be committed on the high seas. Is the place described in the special verdict a part of the high seas? If the words be taken according to the common understanding of mankind, if they be taken in their popular and received sense, the '' high seas," if not in all instances confined to the ocean which washes a coast, can never extend to a river about half a mile wide, and in the interior of a country. This extended construction of the words, it has been insisted, is still farther opposed by a comparison of the 12th with the 8th section of the act. In the 8lh section. Congress has shown its attention to the distinction between the " high seas," and " a river, haven, basin, or ba}-." The well-known rule that this is a penal statute, and is to be construed stricth", is also urged upon us. On the part of the United States, the jurisdiction of the court is sus- tained, not so much on the extension of the words '' high seas," as on that construction of the whole act, which would engraft the words of the 8th section, descriptive of the place in which murder may be committed, on the 12th section, which describes the place in which manslaughter may be committed. This transfer of the words of one section to the * Arguments of counsel and part of the opinion are omitted. — Ed. CHAP. I.] UNITED STATES V. WILTBERGER. 37 other, is, it has been contended, in pursuance of the obvious intent of the legislature; and in support of the authority of the court so to do, certain maxims or rules for the construction of statutes have been quoted and relied on. It has been said, that although penal laws are to be construed strictly, the intention of the legislature must govern in their construction. That if a case be within the intention, it must be considered as if within the letter of the statute. So if it be within the reason of the statute. The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals ; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment. It is said, that notwithstanding this ^'ule, the intention of the law- maker must govern in the construction of penal, as well as other statutes. This is true. But this is not a new independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this, that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious inten- tion of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legis- lature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed which would justify a court in depart- ing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not susrsrest. To deter- 'oo^ mine that a case is within the intention of a statute, its language must authorize us to sa}' so. It would be dangerous indeed to carry the principle, that a case which is within the reason or mischief of a stat- ute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity or of kindred character with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of con- siderable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases. After giving the subject an attentive consideration, we are unani- mously of opinion that the offence charged in this indictment is not cognizable in the courts of the United States ; which opinion is to be certified to the Circuit Court for the district of Pennsylvania. 38 ANONYMOUS. [CHAP. II. CHAPTER II. LIABILITY BASED UPON ACT. SECTION I. Nature of an Act. ANONYMOUS. King's Bench, 1.370. [Reported Lib. Assis. 287, pi. 17.] William H. was arraigned in the King's Bench for that he had killed one J. De B. feloniously; and he pleaded not guilty. The jury came and said that the dead man struck W. from behind in the neck ■with his fist, so that W. fell to the ground; and while W. was on the ground the dead man drew his knife to have killed W., and W., lying on the ground, drew his own knife, and the dead man was so hasty to have killed W. that he fell on W.'s knife and so killed himself. Knivet, C. J. If W. had killed the dead man in self-defence W.'s chattels would have been forfeited, and W. would have sued the king to have a charter of pardon ; but now it is found that the dead man killed himself, in a way, wherefore we will advise whether W. shall be put to sue the king for his charter and forfeit his goods, or not. And then he was adjudged not guilty4 and his chattels not forfeited.^ ^ "An act is the result of an exercise of the will." Gray, J., in Duncan v. Landis, 106 Fed. 839, 848. "Acts are exertions of the will manifested in the external world." Professor Pound, Readings on the History and System of the Common Law, 4.33. "If a movement is caused by physical compulsion, ' vi,i absoluta,' as when the hand of a person is forcibly guided in making a signature, there is no act, since will is absent. But the will itself, being amenable to motives, may be coerced by threats, 'metus,' 'vis com.pul.iiva,' 'duress per minas.' Here there is indeed an act, but one which produces none or few of the legal consequences which it would have produced had it been the result of free volition." Holland, Jurisprudence, 103. SECT. I.J GIBBONS V. PEPPER. ^9 GIBBONS V. PEPPER. King's Bench, 1695. [Reported 1 Ld. Raym. 38.] Tkespass, assault and battery. The defendant pleads, that he rode upon a horse in the king's highway, and that his horse being affrighted ran away with him, so that he could not stop the horse; that there were several persons standing in the way, among whom the plaintiff stood; and that he called to them to take care, but that notwithstand- ing, the plaintiff did not go out of the way, but continued there; so that the defendant's horse ran over the plaintiff against the will of the defendant; quae est eadeiri transgressio, &c. The plaintiff de- murred. And Serjeant Darnail for the defendant argued, that if the defendant in his justification shews that the accident was ine\atable, and that the negligence of the defendant did not cause it, judgment shall be given for him. To prove which he cited Hob. 344. Weaver V. Ward. Mo. 864. pi. 1192. 2 Roll. Abr. 548. 1 Brownl. prec. 188. Northey for the plaintiff said, that in all these cases the defendant confessed a battery, which he afterwards justified; but in this case he justified a battery, which is no battery. Of which opinion was the whole court; for if I ride upon a horse, and J. S. whips the horse, so that he runs away with me, and runs over any other person, he who whipped the horse is guilty of the battery, and not me. But if I by spurring was the cause of such accident, then I am guilty. In the same manner, if A. takes the hand of B. and with it strikes C, A. is the trespasser, and not B. And, j^f^i" curiam, the defendant might have given this justification in e\adeAce, upon the general issue pleaded. And therefore judgment was given for the plaintiff. 40 REX ?;. SUTTON. [CHAP. 11. REX V. SUTTON. King's Bexch. 1736. ^Reported Cases temp. Hardwicke, 370.3 ^ The defendant was indicted, for that being a person of evil fame and reputation, on tlie 2.3tli day of, &c., witliout any lawful authority, [he] had in his custody and jjossession two iron stamps, each of which would make or impress the ligure, resemblance, and similitude of one of the sceptres made and imprest upon the current gold coin of this kingdom, called half-guineas, with an intent to make the impression of sceptres on divers pieces of silver coin of this realm, called sixpences, and to color such pieces of the color of gold, and fraudulently to utter them to his Majesty's subjects, for and as pieces of lawful and current gold coin of this realm, called holf-guineas, against the peace of our Lord the King, his crown and dignity. And the indictment further sets forth, that the defendant, the day and year aforesaid, in the said county of Northampton, unlawfully had in his custody and possession one piece of silver, colored over with certain metal pro- ducing the color of gold, and feloniously made to resemble a piece of the current coin of this realm, commonly called a half-guinea, with intent to utter the said piece so colored and feloniously made to re- semble a half-guinea to some of his Majesty's subjects for and as a piece of lawful and current gold coin of this realm, called a half- guinea (he, the said defendant, then and there well knowing the said piece to be silver coin colored and falsely made), to the evil example of all others, and against the peace of our Lord the King, his crown and dignity. The defendant was tried upon this indictment at the last summer assizes, and found guilty, before my Lord Hardwicke, C. J. ; and he having some doubt what the offence was, the defendant was brought up last jNIichaelmas term by habeas corpus, and committed to Newgate, and the indictment removed into the King's Bench by certiorari, for the opinion of the court. And Lord Hardwicke, C. J., then said : As to the first part of the indictment, I doubted whether it was not high treason within the Stat. 8 & 9 Will. IH. c. 26, s. 6 ; but it is not at all clear it would be so, because this is only to stamp part of one side of the coin, viz., putting sceptres. Then it is a misdemeanor at common law, and it did not occur to me that having in one's cus- tody with an intent, without any act done, was a misdemeanor. As to 1 s. c. 2 Stra. 1074. SECT. I.] REX V. SUTTON. 41 the second part, I doubted whether any precedent could be found to show that the bare having counterfeit money in one's possession, with intention to utter it, without uttering it, was an offence.^ For the defendant it was argued, that the common law takes no notice of a bare intention, as a crime, unless coupled with some overt act ; and therefore, though in the time of Edw. III. an intention to rob was a felony, ^'et even then, as appears by 3 Inst. fo. 5, there must have been some overt act to show that intention. So in Bacon's Case, 1 Sid. 230, and 1 Lev. 146, though an intention to kill the Master of the Rolls was adjudged a misdemeanor, yet there was an overt act, viz., a reward offered by the defendant for doing it: so in Holmes's Case, Cro. Car. 376, where burning his house with an intention to burn his neighbor's was held a misdemeanor ; yet there was an act joined to the evil intention, viz., the burning his own house. So in the case of The King v. Cooper, 5 Mod. 206, and Skinner, 637, where an inten- tion to assist the king's enemies was held a misdemeanor ; yet there was an overt act laid, viz., hiring a boat for that purpose. But this indictment is really nothing more than for an intention to make an impression with such stamps as he had in his custody ; and a man may be possessed of a thing without having done anything to acquire the possession ; and the bare having a thing is not unlawful, unless made use of, or unless such bare possession is made a crime by a positive law, as in the case of the Statute of AVill. III. [c. 26]. Pkr Cur. viz., Page, Probyn, and Lee, JJ. Judgment must be given against the defendant. Lee, J. It is certain that a bare intention is not punishable ; and yet when joined with acts whose circumstances may be tried, it is so ; so an action innocent in itself may be made punishable by an inten- tion joined to it ; as loading wool with intention to transport it, as Lord Hale says in his Hist. Plac. Coron. vol. i. p. 229. In this case the indictment is for unlawfully having in his custody stamps capable of jtiaking impression of sceptres, with intent to make such impression : now the Statute of 8 & 9 Will. HI. [c. 26 j has considered the having as an act ; for, by the statute, it is high treason to have [knowingly any] instrument, &c., in his possession ; and though the word " know- ingly " is added, yet that is an act of the mind only ; and the only act capable of trial in the offence against the statute is the having in pos- session. All that is necessary in this case is an act charged, and a criminal intention joined to the act. The court gave judgment that the defendant do stand in the pillory at Charing-cross ; and in consideration of his poverty and long impris- onment hitherto, that he do pay a fine of 6s. 8d. and be imprisoned for six months. 1 The argument for the prosecution is omitted. 42 REX V. HEATH. [CHAP. II, REX V. HEATH. Crown Case Reserved. 1810. [Reported Russ. ^' Ry. 184.] This case stood for trial before Mr. Justice Batley, at the Lent assizes for the county of Warwick, in the yea.v 1810 ; but as the learned Judge thought it questionable whether the facts constituted an}' offence, and as the defendant was out upon bail, he postponed the trial by con- sent, that the opinion of the judges might in the meantime be taken upon the case. The indictment contained three counts : one for uttering counterfeit money, a second for having it in his possession, knowing it to be coun- terfeit, with intent to circulate and put off the same among the liege subjects of our Lord tiie King, and to defraud them, and a third for having it in his possession knowingl}', designed!}^, and illegally, know- ing it to be counterfeit. The only act of uttering was delivering a box packed up, containing 2800 bad shillings, and 1000 bad sixpences at a coach office at an inn at Birmingham addressed to a man at Glasgow, and the uttering was stated to be to the book-keeper at the inn. The box was stopped at the inn. The following authorities were referred to in support of the second and third counts. Rex v. Sutton, Ca. temp. Hardw. 370 ; Rex v. Sco- field, Cald. 397, and Rex ik Higgins, 2 East. 5. In Easter term, 31st May, 1810, this case was taken into considera- tion, all the judges being present. They relied much upon the authority of Rex V. Sutton, and the cases there cited, in forming their opinion, and were then incUned to think this a misdemeanor as stated in the second count. But on considering this case again on the first da}" of Trinity term ensuing, the majority of the judges seemed to be of opinion that " having in his possession " with the terms knowingly, &c. annexed to it, could not be considered an act, and that an intent without an act was not a misdemeanor, and they considered the case of Rex v. Sutton as untenable.^ 1 The result seems to be that the second and third counts of the indictment as here framed are not good, and any judgment upon them might be arrested. But the facts seemed to afford grounds for a good indictment, by stating that the defendant acquired or procured the bad money with intent to circulate it, or packing it up or delivering to the book-keeper with intent to circulate it. ms. .icd. See the same point decided as in the above case in Rex v. Stewart, Mich. T. 1814, post. See also Rex v. C6llicott, Hilary T. 1812, post. — ligp. SECT, I.] DUGDALE V. EEGINA. 43 DUGDALE V. REGINA. Queen's Bench. 1853. [Reported 1 Ellis r. the con- stable went to the house, and asked William White if he knew where his child was ; he said, "No." On being asked if he knew it was in the road, he answered, "Yes." It appeared that, during the time which elapsed between William White leaving his house, about 7 p. m. , and his return, about 10 p. m., he had been to the police constable stationed at Beaulieu, and told him that there had been a disturbance between him and his wife, and wished him to come up and settle it, but he did not sa}' an^'thing about the child. The prisoner's counsel objected that upon these facts there was no evidence of abandonment or exposure, under the Act, by William White. He also objected that there was no evidence against John White and Maria White. The Court were of opinion that there was no evidence against the two last-named prisoners, but overruled the objection as to William White, as to whom the case was left to the jury, who found him guilty. The question for the Court was, whether the prisoner, William While, was properl}- convicted upon the facts as above stated. April 29. No counsel appeared. Cur adv. vult. May 6. Bovill, C. J. We have considered this case, and we are of opinion that the conviction was right, and ought to be affirmed. The prisoner was indicted, under 24 & 25 Vict. c. 100, s. 27, for unlawfully abandoning and exposing a child, under the age of two 3'ears, whereby its life was endangered. On the facts stated in the case the objection 50 KEGINA V. -WHITE. [CHAP. II. was taken that there was no evidence of abandonraent or exposure. Nqw, the prisoner was the father of the child, and as such was entitled to the custod}' and control of it, and was not only morally but legally bound to provide for it. Then it appears that when the child was lying at the door he saw it, stepped over it, and left it there. Afterwards, when the child was in the road, he knew it was there. I am clearly of opinion tiiat there was evidence here upon whicii the jury might and J ought to convict the prisoner. Instead of protecting and providing for [the child, as it was his duty to do, he allowed it to remain lying, first f at his door, and afterwards in the road, insufficiently clothed, and at a ^ time of year when tlie result was likely to be the child's death. I think, , therefore, he was guilty both of abandonment and exposure. Martin, B. I am of the same opinion, though I have entertained some doubt upon the question. The statute makes it an offence un- lawfully to abandon or expose a child, and, construing these words according to their natural meaning, I thought at first that they could only appl.y to persons who had had the actual custody and possession of the child. But as the prisoner here was the father of the child, entitled to its custody and legally bound to its protection, I do not differ from the rest of the Court. Bramwell, B. I am of the same opinion. If the person who had had the actual custod}- of the child, and who left it at its father's door, had been a stranger with whom it had been left at nurse, there could, I think, have been no doubt about the case ; and I do not think the fact that it was the mother makes any difference. Blackburn, J. I am of the same opinion. The question turns upon the meaning of the words "abandon or expose" in the statute. The Court, before whom the prisoner was tried, were right in directing the acquittal of the two other persons accused, because there was no legal duty upon them to protect the child, but onlv a duty of imperfect obli- gation. But the father's case is different ; for upon him there is a strict legal duty to protect the child. And when the child is left in a position of danger of which he knows, and from which he has full [)ower to remove it, and he neglects his duty of protection, and lets the child remain in danger, I think this is an exposure and abandonment b}' him. If the child had died, the facts were such that a jury might have con- victed him of murder, though they might have taken a more merciful view, and found him guilty onl}- of manslaughter; and as the child, though its life was endangered, did not die, the case is within the section. Channell, B. My Brother Byles, who was a member of the Court when the case was first before the Court, concurs in the judgment; and, having had an opi)ortunity of considering the case this morning, I am of the same opinion. Conviction affirmed. SECT. II. J REGINA V. DOWNES. 51 REGINA V. DOWNES. ' Crown Case Reserved. 1875. [Reported 13 Cox C. C. 111.] Case reserved for the opinion of this court bv Blackburn, J.^ 1. The prisoner was indicted at tlie Central Criminal Court for the manslaughter of Charles Dovvnes. 2. It appeared on the trial before me by the evidence that Charles Downes was an infant who, at the time of his death, was a little more than two 3-ears old. The child had h.een ill. and wasting away for eight or nine months before its death. The prisoner, who resided at "Woolwich, was the father of the deceased, and had during the whole of this time the custody of the child. 3. The prisoner w^as one of a sect who call themselves " The Peculiai* People." 4. During the whole period of the child's illness he did not procure any skilled advice as to the treatment of the child, but left it to the charge of women who belonged to his sect, and called in at inter- vals George Hurry, an engine driver, who prayed over the child and anointed it with oil. 5. The reason of this course of conduct was explained b}' George Hurry, who was called as a witness. 6. He stated that the Peculiar People never called in medical advice or gave medicines in case of sickness. The}- had religious objections to doing so. They called in the elders of the church, who prayed over the sick person, anointing him with oil in the name of the Lord. This he said the}' did in literal compliance with the directions in the 1-ith and loth verses of the fifth chapter of the ICpistle of St. James, and in hope that the cure would follow. 7. This course was pursued witli regard to the deceased infant during its illness. The prisoner consulted the witness Hurry as to what w-as the matter with the child, and as to what should be given to it. The}' thougiit it was suflfering from teething ; and he advised the parents to give it port wine, eggs, arrowroot, anl, B. I am of the same opinion. The 31 & 32 Vict. c. 122, s. 37, has imposed a positive and absolute duty on parents, whatever their conscientious or superstitious opinions ma}' be, to provide medical aid for their infant children in their custody. The facts show that the prisoner thought it was irreligious to call in medical aid, but that is no excuse for not obeying the law. Mellor and Grove, JJ., and Pollock, B., concurred. Conviction ajfirmed. REGINA V. INSTAN. Crown Case Reserved. 1893. [Reported [1893] 1 Q. B. 450.] Case stated by Day. J. Kate Instan was tried before me at the last assizes for the county of Worcester upon a charge of feloniously killing one Ann Hunt. The prisoner, who is between tliirt}- and foity years of age and unmarried, had no occupation and no means of her own of living. iShe -was a niece of the deceased. At the time of the committal of the alleged offence, and for some time previous thereto, she had been living with and had been main- tained by the deceased. Deceased was a woman of some seventy- three years of age, and until a few weeks before her death was healthy and able to take care of herself. She was possessed of a small life income, and had in the house in which she lived some little furniture, and a few other articles of trifling value. The two women lived to- gether in a house taken by the deceased ; no one lived with them or In anv wav attended to them. SECT. II.] REGINA V. INSTAN. 55 The deceased shortl}- before her death suffered from gangrene in tiie log, wliich rendered her during the hist ten days of her life quite unable to attend to herself or to move about or to do anything to pro- cure assistance. No one but the pi'isoner had previous to the death any knowledge of the condition in which her aunt thus was. The prisoner continued to live in the house at the cost of the deceased, and took in the food supplied by the tradespeople ; l)ut does not appear to have given any to the deceased, and she certainl}- did not give or procure any medical or nursing attendance to or for her. or give notice to any neighbor of her condition or wants, although she had abundant opportunity and occasion to do so. The body of the deceased was on August 2, while the prisoner was still living in the house, found much decomposed, partialh' dressed in her day clothes, and lying parth' on the ground and partly prone upon the bed. The death probablv occurred from four to seven days before August 3, the date of the post-mortem examination of the bod}'. The cause of death was exhaustion caused by the gangrene, but substan- tially accelerated by neglect, want of food, of nursing, and of medical attendance during several days previous to the death. All these wants could and would have been supplied if any notice of the condition of the deceased had been given by the prisoner to any of the neiglibors, of whom there were several living in adjoining houses, or to the rela- tions of the deceased, who lived within a few miles. It was proved that the prisoner, while the deceased must have been just about dying, had conversations with neighbors about the deceased, but did not avail herself of the opportunities thus afforded of disclosing the con- dition in which she then was. At the close of the case it was objected on behalf of the prisoner that there was no evidence of an}' legal duty such as would bind the prisoner to give or to procure any food, or nursing, or attendance to or for the deceased, or to give any notice to an}- one that such was required. I thought it better not to stop the case, but to leave it to the jur}' to say whether, having regard to the circumstances under which the prisoner lived with the deceased, and continued to occup}' the house, and to take the food provided at the expense of the de- ceased, while the deceased was, as she knew, unable to communicate with any other person and thus to procure necessaries for hei'self. the prisoner did or did not impliedly undertake with the deceased either to wait upon and attend to her herself or to communicate to persons out- side the house the knowledge of her helpless condition ; and I told them that if they came to the conclusion that she did so undertake, and that the death of the deceased was substantially accelerated b}' her failure to carry out such undertaking, they might find the prisoner guilty of manslaughter, but that otherwise they should acquit her. The jury found the pi'isoner guilt}'. If the facts above stated do not afford evidence of the existence ol an}' such undertaking or duty, then the conviction is to be quashed ; if otherwise, it is to stand. 56 KEGINA V. INSTAN. [CHAP. ir. Viichell, for the prisoner. There was no legal duty imposed upon the prisoner to provide food or attendance for the deceased during the last ten days of her life ; there was certainly no such duty before that time, for the deceased was the head of the household and able to help herself. Such a duty as is here sought to be enforced can onU' arise b}' virtue of a statute or a contract, or at common law. It must be conceded that there was no statutory duty, neither was there any dut}' at common law ; there is no authority for the existence of any such conunon law duty in the case of a person of full age ; in such a case the duty can onlj- arise in respect of an undertaking, express or im- plied. In Rex V. Friend it wa* held to be an indictable offence to refuse or neglect to provide sufficient food, bedding, &c., to an infant of tender years, unable to provide for and take care of itself, whom a man was obliged by duty or contract to provide for ; but the decision was in terms confined to such cases, and the indictment was held to be defective in not stating the child to be of tender years and unable to provide for itself. In Reg. v. Shepherd it was held that there was no duty upon a woman to procure a midwife for her daughter, a girl of eighteen, and that she could not be convicted of manslaughter for omitting to do so. In his judgment, Erie, C. J., sa3's : "Here the girl was beyond the age of childliood, and w^as entirely emancipated." In the case of a pei'son of full age such a duty ma^' indeed arise out of an express or implied undertaking : Reg. v. Marriott, where a man was convicted of the manslaughter of an elderly and infirm woman, whom he had taken home to live in his house, promising to make her happ}' and comfortable. In summing up in that case, Pat- teson, J., said : " The cases which have happened of this description have been generally cases of children and servants, where the duty was apparent. This is not such a case ; but it will be for you to say whether, from the wa}' in which the prisoner treated her, he had nut by wa}' of contract, in some way or other, taken upon him the per- formance of that duty which she, from age and infirmity, was inca- pable of doing." In the present case there was no evidence of any contract or undertaking by the prisoner to take care of her aunt, though no doubt she was under a moral obligation to do so. [Hawkins, J. Why should not a contract be implied from such cir- cumstances as those in this case? Suppose two people agreed to live together for their mutual benefit, would not the mere fact of their living together be evidence from which an undertaking might be implied?] [Cave, J. When the prisoner took in food paid for with the de- ceased's mone}', she had no right to appl}' it all for her own use. Did she not then undertake a duty towards the deceased?] Not b}' wa}' of contract so as to raise a legal duty ; it was nothing more than a duty of imperfect obligation. Lord Coleridge, C. J. We are all of opinion that this conviction must be affirmed. It would not be correct to say that ever3' moral obligation involves a legal duty ; but every legal duty is founded on a SECT. U.] REX V. PITTWOOD. 57 moral obligation. A legal common law duty is nothing else than the enforcing by law of that which is a moral obligation without legal enforcement. There can be no question in this case that it was the clear duty of the prisoner to impart to the deceased so much as was necessary to sustain life of the food which she from time to time took in, and which was paid for by tlie deceased's own money for the pur- IDose of the maintenance of herself and the prisoner ; it was only through tlie instrumentality of the prisoner that the deceased could get the food. There was, therefore, a common law duty imposed upon the prisoner wliich she did not discliarge. Nor can there be any question that the failure of the prisoner to dis- charge her legal dut}^ at least accelerated the death of the deceased, if it did not actually cause it. There is no case directly in point ; but it would be a slur upon and a discredit to the administration of justice in this country if tliere were any doubt as to the legal principle, or as to the present case being within it. The prisoner was under a moral obligation to the deceased from wliich arose a legal duty towards her ; that legal duty the prisoner has wilfully and deliberately left unper- formed, witli the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty. It is unnecessary to say more than that upon the evidence this conviction was most properly arrived at. Hawkins, Cave, Day, and Collins, JJ., concurred. Conviction affirmed. REX V. PITTWOOD. Taunton Assizes. 1902. [Reported 19 Times Law Rep. 37.] Philip Pittwood was charged with the manslaughter of Thomas White, and a coroner's inquisition for the same offence was also returned. It appeared that the prisoner occupied a hut as a gate-keeper on the Somerset and Dorset Railway, near Glastonbury. His duties were to keep the gate shut whenever a train was passing along the line, which was a single line, and not many trains used to pass during the day. His hours of duty were from 7 in the morning till 7 p. m. On July 18, at about 2.45 in the afternoon, White was in a hay cart crossing the line with several others, when a train came up and hit the cart, W^hite being struck and killed. Another man was also seriously injured, while the three remaining men, by jumping out of the cart, saved their lives. A number of witnesses were called to show that it was really only an 58 REX V. PITTWOOD. [CHAP. II. accommodation road, and not a public road. It was shown that the train was going at a very fair rate, and it was impossible to stop it, as the cart was on!}- seen by the driver a few yards from his train. The prisoner gave evidence before the coroner, and his deposition was put in, and in it he stated that he had put the gate open about ten minutes before to let a cart pass, and iiad propped it open, had forgotten to sliut it again, and had gone to have some luncheon. For the defence it was suggested that there was only mere inattention on the [oart of the prisoner, and no criminal negligence. The jury returned a verdict of f/uilty. ]\Ir. Justice Wright passed a sentence of three weeks'" imprisonment in the second division, but allowed the prisoner out on his own recognizance to hear the points of law to be argued in arrest of judgment. Mr. Simon, on behalf of the prisoner, submitted that there was no evidence of negligence to go to the jury ; that negligence in law is want of due care ; that in the present case the prisoner was not bound to take any care ; that it was necessary that the duty to take care should be towards the person who complained ; and that, in the pres- ent case, the prisoner only contracted with his employers, — the rail- way company. He quoted Reg. v. Smith, 11 Cox, 210, decided b}^ Mr. Justice Lush. Further, he submitted that the man who was killed was not the man for whom the gate was opened. [Mr. Justice AVright. — The jury have not had to consider whether this was an accommodation road or not. That question could not be left to them.] Mr. Justice Wright, without calling upon the prosecution, gave judgment. He said he was clearly of opinion that in this case there was gross and criminal negligence, as the man was paid to keep the gate shut and protect the public. In his opinion there were three grounds on which the verdict could be supported: (Ij There might be cases of misfeasance and cases of mere non-feasance. Here it was quite clear there was evidence of misfeasance, as the prisoner directly contributed to the accident. (2) A man might incur criminal liability from a duty arising out of contract. The learned Judge quoted in sup- port of this, Reg. v. Nicholls, 18 Cox, 75 ; Reg. r. Elliott, 16 Cox, 710 ; Reg. V. Benge, 4 F. & F. 504 ; Reg. r. Hughes, Dears. & B. C. C. 248. The strongest case of all was, perhaps, Reg. r. Instan (1893), 1 Q. B. 450, and that case clearly governed the present charge. (3) With regard to the point that this was only an occupation road, he clearly held that it was not. as the company had assumed the liability of pro- tecting the public whenever they crossed the road. There was no ground for stating a case on any of the grounds urged on behalf of the prisoner. The prisoner thereupon surrendered to undergo the sentence that had been passed ui)on him. SECT. ILI ANDEKSON V. STATE. 59 ANDERSON r. STATE. Texas Court of Appeals. 1889. [Reported 27 Tex. App. 177.] The conviction in this case was for negligent homicide, and the penalty' assessed against each of the appellants was a fine of two hundred and fift}' dollars. The indictment impleaded O. Torgerson, engineer, J. A. DeCogne, fireman, and the appellants as brakemen on engine number eleven of the Houston, East & West Texas Railway Company, charging them with negligent homicide of the first degree, and alleging in substance that on the seventh day of February, 1887, while engaged as workmen in running said engine and tender on said railroad, said Torgerson, DeCogne, Anderson, and Woods did back said engine and tender negli- gently and carelessly, without ringing the bell or blowing the whistle, and without giving any warning, and without first looking to see if any person was likely to be injured thereby, and by said negligence and carelessness one Sing Morgan was struck b}' said engine and tender so run, and the death of said Morgan was caused by said negligence and carelessness — the said Morgan being at tlie time in a position to be struck b}' said engine and tender which fact would have been known by said Torgersoiy, DeCogne, Anderson, and Woods if they had used that degree of care and caution whicii a man of ordinary prudence would use under like circumstances, there being then and there an apparent danger of causing the death of said Morgan and of other persons passing on said railroad and higiiway.^ WiLLSON. J. . . . As we view the evidence and the law applicable thereto, this conviction is not warranted. Tliese appellants were brake- men. They had no control whatever of said engine and tender. They were riding upon the same for the purpose merely of performing their specific duties as brakemen, wliicii duties had no connection with or relation to the homicide. It was the exclusive dutv of the engineer and fireman to operate said engine carefully ; to look out for obstruc- tions upon the track : to give signals of danger when necessary. With these duties appellants were in no way coucerned. They had no right to start the engine in motion, to blow the whistle, to ring the bell, to stop the engine, or otherwise to control its movements. They per- formed no act whicli connected them with tlie deatli of the child. It is only for a supposed omission of duty on their part that the}' have been convicted of negligent homicide. Thev omitted to look out for obstruc- tions on the track. They might have seen the child in time to save its life, but they omitted to see him. Or if they did see him they omitted to stop the train, or to signal tlie engineer to stop it. 1 The evi'leiice and part of the o]iiiiion dealiuc; with tlie form of the iiidic-tment and the adinis.sibility of certaiu evidence are omitted. — Ed. 60 ANDERSON V. STATE. [CHAP. II. Were these omissions criminal, within the meaning of the statute defining negligent homicide? We think not, because, to constitute criminal negligence or carelessness, there must be a violation of some duty imposed by law directl}' or impliedly, and with which duty the defendant is especiall}' charged. Mr. Wharton says : " Omissions are not tlie basis of penal action, unless the3' constitute a defect in the dis- charge of a responsibility with which the defendant is especially in- vested." (Wharton on Horn. sec. 72.) Again, this author sajs, in treating of omissions by those charged with machinerj-, etc.: "The responsibility of the defendant which he thus fails to discharge must be exckisive and peremptory-. A stranger who sees that unless a rail- way* switch is turned, or the car stopped, an accident may ensue, is not indictable for not turning the switch or stopping the par. The reason for this is obvious. To coerce, b}' criminal prosecutions, every person to supervise all other persons and things, would destroy that division of labor and responsibility b}' which alone business can be safely con- ducted, and would establish an industrial communism, by which private enterprise and private caution would be extinguished. Nothing can be effectually guarded when everything is to be guarded b3- everybody. No machinery could be properlv worked if every passerby were com- pelled by the terror of a criminal prosecution to rush in and adjust anything that might appear to him to be wrong, or which was wrong, no matter how it might happen to appear. By this wild and irre- sponsible interference even the simplest forms of machinery would be speedily destroyed." (Ibid. sec. 80.) And upon the subject of omission to give warning of danger, the same author says : " The test here is, is such notice part of an express duty with which the defend- ant is exclusiveh' charged? If so, he is responsible for injur}- which is the regular and natural result of his omission ; but if not so bound, he is not so responsiljle." (Ibid. sec. 81.) These rules of the common law are not inconsistent with our statute, but are in harmony therewith, as we construe it. As we understand both the common law and the statute, there can be no criminal negli- gence or carelessness by omission to act, unless it was the especial dut}- of the party to perform the act omitted. Negligence or careless- ness by omission presupposes dut}- to perform the act omitted, and can not, in law, be imputed except upon the predicate of duty. In this case the evidence is uncontradicted and clear that appellants did not do any act or omit to do any legal duty, with reference to the deceased child. In law thev are no more responsible for the death of the child than any other person who was present and witnessed the accident. They were strangers to the transaction, in contemplation of the law, because tiiey were not charged with any duty with respect to it. We are of the opinion that the judgment of conviction is contrary to the law and the evidence, and therefore said judgment is reversed and the cause is remanded. Reversed and remanded. SECT. II.J BEATTIE V. STATE. 61 BEATTIE V. STATE. Supreme Court of Arkansas. 1904. [Reported 73 Ark. 428.] George Beattie, a resident of Missouri, was arrested, tried and con- victed on a charge that, being a resident of the State of Missouri, he did, in the county of Sharp and State of Arliansas, in Ma^', 1904, herd, graze, and permit to run at large about nineteen head of cattle. He was convicted, and fined $100 before a justice of the peace. He took an appeal to the Circuit Court, and on the trial there the Circuit^Judge made the following findings of law and fact : " In this case I find that the defendant, George Beattie, was a non- resident of the State of Arkansas, and was a resident of the State of Missouri ; that he owned land in the latter State ; that his land, or at least a part of it, had as its south line, the State line, and that his residence was in the State of Missouri about one-half of one-quarter of a mile north of the State line. The evidence further shows that he owned eighty acres of land in Arkansas. The testimony shows that he would turn his cattle out of the inclosure in Missouri, knowing that the}' would go across the line in the State of Arkansas ; that he would go and drive them out of said State for the purpose of salting them, and then turn them out when they would go across into Arkansas, and that this was done repeatedly during the year prior to the filing of the information herein. " I find that if defendant turned his stock on the range in Missouri with no one to look after them, knowing that thev were in the habit of going into Arkansas, and that the}' did go into Arkansas, he would be guilty of a violation of this statute, although he ma}' have been in the State of Missouri during the time. " I further find that if he thus permitted his stock to enter the State of Arkansas, and went into said State for the purpose of driving them home to be salted, and then turned them out again, he would be guilty." The court also declared the law to be that the fact that a non- resident owned land in this State did not authorize him to herd, graze, or permit his stock to run at large in this State, though he had the right to pasture them on his own land. The court gave other instructions of law on motion of the State and defendant, but they need n6t be set out here, for the substance of them is contained in the above findings. The court found that defendant was guilty, and assessed his fine at $100. Defendant appealed. 62 KING V. INTERSTATE CONSOLIDATED STREET liY. CO. [CHAP. II. RiDDiCK, J. This is an appeal from a judgment convicting a non- resident defendant and assessing a fine of $100 against him for per- mittino; his cattle to run at large in this State. Now, it is clear that our statute on that subject does not forbid a nonresident, whose cattle have strayed or come of their own voli- tion into this State, from driving them out again. It is equally clear that it does not subject a resident of Missouri, who turns his cattle at large in that State, to a criminal prosecution and fine if the cattle afterwards come into this State; for the Legislature of tliis State has no power to punish a resident of Missouri for a lawful act done in that State. Nor do we thiuli that it would alter the case if the defendant knew, at the time he turned them at large in Missouri, that they would probably come into Arkansas, for the Legislature of this State cannot compel the residents of Missouri who live near the State line to keep tlieir cattle in inclosed lots or fields in order to prevent them from coming into this State, and we do not think that was the inten- tion of this statute to do so. The people of Missouri have the right to permit their cattle to run at large in that State, unless forbidden by the law of that State; and if the people of this State desire to keep such cuttle from entering this State, the}' can do so by putting up a fence along the line between this State and Missouri or by a statute authorizing the cattle of nonresidents which stra}' into this State to be impounded and kept at the costs of the owners. But to undertake to arrest and fine a resident of Missouri because he does not prevent his cattle from straying into this State would be to assume a jurisdiction over the residents of that State never intended by the statute and be- yond the power of the Legislature to confer. The evidence in the case was conflicting, and some of it, if true, might have warranted a finding that the defendant was guilty, but the finding of facts by the court has evidence to support it, and, taking that as true, no crime was committed. The judgment will therefore b© reversed, and the cause remanded for a new trial. KING V. INTERSTATE CONSOLIDATED STREET RAILWAY CO. Supreme Court of Rhode Island, 1902. [Reported 23 R. I. 583.] TiLLiNGHAST, J. These cases, which are substantially alike, are before us on demurrers to the declarations. We w^ill consider the first-named case. It is trespass on the case for negligence, and sets out, in substance, in the first count thereof, that the plaintiff was em- ployed by the defendant corporation to help remove snow from its SECT. II.] KING V. INTERSTATE CONSOLIDATED STREET RY. CO. 63 tracks between Pawtucket, R. I., and Attleboro, Mass., in very cold weather in the month of February, 1899; that the work had to be done over a wide tract of open country, remote from dwelUng liouses and other habitations; that the defendant knew that the work of remov- ing said snow and ice from its tracks and roadbed in said open country, in view of the cold and stormy weather, was very trying, exliausting, and dangerous to the laborers engaged therein, and that it was the duty of the defendant corporation to furnish sufficient food and slielter to the plaintiff during the continuance of said work, and to provide for the safety of the plaintiff while so employed, and to carry him to his home in Pawtucket when returning from said work; that he was ignorant of the danger attending said work in the open country in cold and stormy weather, and that while engaged for 24 hours therein, and while in the exercise of due care, and in ignorance of the peril to which he was exposed, both of his feet were frozen, of which fact he informed the defendant's agents and servants, and requested them to carry him to his home, in Pawtucket, but that the defendant, its agents and servants, well kno^\^ng the premises, carelessly and negligently failed to pro\ide food and shelter for the plaintiff; and that the freezing of his feet was due to the failure of the defendant corporation, its agents and servants, to supply him with food and shelter while so engaged. It is further alleged that, in consequence of the freezing of plaintiff's feet, they had to be amputated, whereby he was disabled, etc. The second count differs from the first in that it alleges that, without fault on his part, both of his feet were frozen, of which fact he informed the defendant, its agents and servants, and requested them to carry him to his home, in Pawtucket, which they carelessly and negligently refused to do, and, being unable to procure passage to his home, he was obliged to make his way there on his hands and knees, and was engaged in making said journey from 7 o'clock in the evening until 8 o'clock the next morning. And he avers that in con- sequence thereof, and without fault on his part, his feet were so badly frozen that they afterwards had to bq amputated, and that it was the duty of the defendant, under the circumstances set forth, to pro\'ide him with food and shelter and transportation as aforesaid. To this declaration the defendant demurs on the grounds (1) that the defendant owed no legal duty to the plaintiff in the premises; (2) that the alleged negligence was not the proximate cause of the accident; (3) that the danger complained of was obvious to the plain- tiff, and that he assumed it as one of the risks of his employment; (4) that the plaintiff was not in the exercise of due care; and (5) that it does not appear from the declaration that the defendant was guilty of negligence.^ . . . We think the second count is also demurrable. It is not alleged that the defendant corporation conveyed the plaintiff to his place of ^ So much of the opinion as discusses the first count is omitted. — Ed. 64 KING V. INTERSTATE CONSOLIDATED STREET RY. CO. [CHAP. II. work, or that it promised, either expressly or impHedly, to carry him back to his home; and it is not, and could not successfully be, con- tended that it is any part of the duty of an employer to carry his em- ployes to or from their place of work, in the absence, at any rate, of some custom, understanding, or agreement to that effect. In lonnone V. Railroad Co., 21 R. I. 452, 44 Atl. 592, 46 L. R. X. 730, 79 Am. St. Rep. 812, Matteson, C. J., in delivering the opinion of the court, said: "The carrying of the deceased after his day's work was done to a point near liis home is, we think, to be regarded not as creating the relation of a passenger, but, rather, as a prixilege incidental to his contract of service, granted him by the defendant, of which he availed himself to facilitate his return to his home, and that it was a privalege accorded to him merely by reason of his contract of service." Schu- maker v. Railroad Co., 46 Minn. 39, 48 N. W. 559, 12 L. R. A. 257, cited by plaintiff's counsel in support of this count, while at first blush it would seem to sustain the same, yet, upon more careful study, we think it is distinguishable from the case at bar. There the plaintiff was sent to repair a wrecked caboose on the line of the defendant's road. It was extremely cold, and a \'illage nine miles away was the near- est point at which he could get food and shelter. He was not provided with food or sufficient clothing for exposure to such weather. The company knew this, and knew that he relied upon its sending for him in the evening. It did not do so, and he was obliged to walk back to the village, and by reason of his exposure to the extreme cold he contracted rheumatism and was permanently injured. The court held that he was entitled to recover. The case was different from the one now before us, in this : That it was e\'idently alleged in the declara- tion (although the declaration is not set out in the case) that the defendant knew of the plaintiff's unprepared condition as to clothing, etc., and also knew that he relied on the defendant's furnishing him with transportation when the work was completed. Whether, in case the declaration now before us showed such a state of facts, we should follow that case and sustain it, we are not now called upon to decide. That the defendant's conduct toward the plaintiff in refusing to carry him home after his feet were frozen was highly reprehensible, morally speaking, no one will question. Indeed, it is well-nigh inconceivable that the agents and servants of the defendant corporation could have been guilty of so gross an act of inhumanity. But courts of law can only take notice of legal rights, duties, and obligations, and must decide cases in accordance therewith, regardless of humanitarian questions. The demurrer to the second count is sustained. As the declaration in the second-named case, namely, John Morri- son V. Interstate Consolidated St. Ry. Co., is the same as the one we have already considered, the demurrer thereto is also sustained, and the cases are remanded to the common pleas division for further proceedings. SECT. III.] FORD V. TRIDENT FISHERIES COMPANY. 65 SECTION III. Causation of Injury. FORD V. TRIDENT FISHERIES C0MPAN1\ Supreme Judicial Court of Massachusetts, 1919. [Reported 232 Mass. 400.] Carroll, J. The plaintiff's intestate was drowned while employed as mate of the defendant's steam trawler, the Long Island. This action is to recover damages for his death. On December 21, 1916, about five o'clock in the afternoon, the vessel left T Wharf, Boston, bound for the "Georges," which are fish- ing banks in Massachusetts waters. About six o'clock, shortly after passing Boston Light, the plaintiff's intestate, Jerome Ford, came on deck to take charge of his watch as mate of the vessel. He came from the galley in the forecastle and walked aft on the starboard side. As he was ascending a flight of four steps leading from the deck to the pilot house, the vessel rolled and he was thrown overboard. At the time of the accident there was a fresh northwest breeze and the vessel was going before the wind; no cry was heard, no clothing was seen floating in the water, and Ford was not seen by any one from the time he fell overboard. ... The plaintiff also contends that the boat which was lowered to pick up the intestate was lashed to the deck instead of being suspended from davits and in order to launch it the lashings had to be cut; that McCue, who manned it, had only one oar and was obliged to scull, instead of rowing as he might have done if he had had two oars. Even if it be assumed that upon these facts it could have been found the defendant was negligent, there is nothing to show they in any way contributed to Ford's death. He disappeared when he fell from the trawler and it does not appear that if the boat had been suspended from davits and a different method of propelling it had been used he could have been rescued. 06 SOWLES V. -MOORE, [cHAP. II. SOWLES V. MOORE. Supreme Court of Vermont, 1893. [Reported 65 Vt. 322.] Tyler, J. This was an action of trespass on the case brought to recover the value of a pair of horses, which were drowned in Lake Charnplain, through the alleged negligence of the defendants in not properly guarding an opening in the lake where they had been takini; ice near a line of public travel. The plaintiff's evidence tended to show that his son had occasion to drive onto the lake on the day of the accident; that the wind was blowing and the ice was glare; that in turning the team around the sled slewed and brought the pole against the horses' legs, frightening them; that they escaped from the driver and ran rapidly from forty to sixty rods and into the op(;ning, which was twenty to thirty feet long by forty to sixty feet wide, and but little guarded. The .statute, R. L. s. 4, 321, does not prescribe the manner in which such openings shall be guarded. It imposes a fine upon persons who, in localities where people are accustomed to travel, make openings and do not place suitable guards around them. The jury found by special verdicts that the opening was not properly guarded, and that the plaintiff's servant was in the exercise of due care in respect to the team and the management of it. The errors assigned were in the court's submitting to the jury to find whether the horses would not have run into the opening if it had been properly guarded, whether the guards would have stopped them, considering their fright and the speed with wliich they were running, and in the instructions that the plaintiff must make out that the horses were drowned by reason of the failure of the defendants to prop- erly guard the opening; that if the guards would not have prevented the casualty the plaintiff coukLnot recover, although he was in the exer- cise of due care and the defendants were negligent; that if the jury were satisfied by a fair balance of e\'idence that the horses would have been turned away by a suitable guard, then the defendants' negligence caused the damage. These instructions did not contain a new proposition of law. It is a general rule that negligence must not only be alleged and proved, but it must also be shown that it caused the injury complained of. When injury on the part of the plaintiff and negligence on the part of the defendant concur, the plaintiff cannot, nevertheless, recover, if the defendant could not, by the exercise of due care, have prevented the accident from occurring. Red. & Shear, on Neg. s. 8. In cases that arose under our former statute rendering towns liable for injuries caused by defective highways, it was not sufficient to prove the exis- tence of defects. It must also have been shown that the defects caused the injuries alleged. Lester v. Pittsford, 7 Vt. 158. ( SECT. III.] SOWLES V. MOORE. 67 Were the horses in such fright and running at such speed that they would have been turned from their course by such guards as reasonably prudent men would have erected? This was a material question of fact for the jury to decide before they could say whether or not the defendants' negligence in respect to a guard was the cause of the cas- ualty. Both questions were involved in the instruction that the plaintiff must make out "that the horses were drowned by reason of the failure of the defendants to properly guard the hole." Suppose damages were claimed of a town, caused by an alleged defective railing upon a bridge; could the ciuestion be excluded from the consideration of a jury, upon proper exddence, whether from the nature of the accident a suitable railing could have prevented it? We think not. In Titcomb v. Fitchburg R. R. Co., 12 Allen 254, the negligence alleged was the want of railings to the approaches to a highway bridge which the defendant was bound to maintain over its railroad at a cross- ing. Among other things the court instructed the jury that if they were satisfied that the injury to tJie plaintiff would not have occurred if the fence or railing had been sufficient, they must find a verdict for her. In considering this subject the Supreme Court said: "So far as such a fence would be effectual to guard against injury frqm the fright- ening of a horse about to enter upon the bridge, by the approach of a train of cars passing under the bridge, the plaintiff was entitled to that protection. Not that the defendant was bound to maintain a bar- rier that would in all cases stop the progress of a frightened horse about to enter upon the bridge, but it was bound to maintain and keep in repair a suitable and proper fence at the place ; and if the discharge of this duty would have prevented the occurrence of the present injury, and the plaintiff is shown to have been without fault on her part, the railroad company may properly be charged in the present action. The fact whether such a fence would have prevented the occurrence of the injury may be a difficult one for the jury to find, but the burden is on the plaintiff to show this, and if she can establish it the defendant may be held liable for the injuries sustained. The case of a horse being frightened is one of the cases of casualty which may and often does occur, and is entirely consistent with a reasonable degree of care and prudence on the part of the traveler. Such traveler has a right in case of such occurrence to the protection which such a fence as the law requires the railroad company to maintain would have given. If such a fence would have been unavailing, and the injury would still have occurred, the traveler cannot say his injury was occasioned by any neglect of the railroad company, and he must bear the loss; but if otherwise, the liability attaches to the party bound to maintain the fence as an appenflage to the bridge." In Wilson v. Atlanta, 60 Ga. 473, it was alleged that an injury was caused by the defendant's negligence in riot providing a railing upon a street. An instruction was held proper, that the questions, whether 68 STATE V. SCATES. [CHAP. II. or not there was negligence in not putting up the raiUng, and whether such neghgence caused the injury to the plaintiff, might be tested by the inquiry whether the plaintiff would not have been injured even if the railing had been constructed. In Ilfrey v. Sabine, etc., R. R. Co., 76 Tex. 63, the plaintiff sought to charge the defendant with liability by reason of its maintaining an embankment, which, as alleged, caused the destruction of the plain- tiff's house by water. It was held competent for the trial court to consider evidence tending to show that the house would have been swept away by the storm, regardless of the embankment, to find that fact from a preponderance of the e\'idence, and that the embankment was not the proximate cause of the destruction. In Bellefohtaine, etc., R. R. Co. v. Bailey, 11 Ohio St. 333, it was alleged that the defendant negligently ran its train so as to kill the plaintiff's horses. It was held error for the court to refuse an in- struction to the jury, that though the defendant was negligent, the plaintiff must fail in his action if the jury believed from the evidence that due care, had it been used, would not have prevented the injm-y. A corresponding proposition was contained in Judge Steele's charge in Walker and wife v. Westfield, 39 Vt. 246, which was construed by this court to mean that though the plaintiffs were not in the exercise of due care, if "such want of care did not contribute to the accident, then it is of no consequence in the case, and wall not prevent a recovery." We find the instructions fully sustained both by reason and author- ity. The request to charge in respect to " the known instincts of the horse" did not embody any legal proposition. All that the court could prop- erly say on this subject was said in reply to an inquiry" by the jury. Judgment affirmed.^ STATE r. SCATES. Supreme Counx of North Carolina. 1858. [Reported 5 Jones 420.] Dr. Hill saw the deceased [child] about twenty hours after it was burnt. He dissected the burnt parts, and found the injuries very exten- sive, the arms, back, and thighs were roasted, — crisped like a piece of leather. He stated that there was a wound in the forehead, as if from a blow ; he was fully satisfie(1 the l)urning in itself was fatal, and must have produced death, but he '• doubted as to the immediate cause of death — thought it was produced by the blow." He explained on cross- examination that he thought the burning the primary cause of the death, but that it was probably hastened by the wound on the head.^ 1 Ace. Brash v. St. Louis, 161 Mo. 43.3; Laidlaw v. Sage, 158 N. Y. 73; Helpling V. Cemetery Co., 201 Pa. 171. 2 Part of the case, turning on the admissibility of a confession, is omitted. — Ed. SECT. III.] STATE V. SCATES. 69 The Court charged the jury that ... as to the cause of the death, it was for thera to say whether it had been produced by the burning, or other means, and that if produced by the burning, they should be satis- fied that the burning was the act of the prisoner; "and even should they share in the doubt expressed by the doctor, that the blow had caused its immediate death, yet if satisfied that the burning was the primar}' cause of the death, and the blow only hastened it, it would be their duty to convict." — Defendant again excepted. Verdict " guilty." Judgment and appeal by the defendant. Battle, J. . . . Upon the other point in the case, we are decidedly of opinion that the prisoner is entitled to a new trial. As to the cause of the death of the deceased, his Honor charged the jury that if the}' " should share in the doubt expressed by the doctor, that the blow had caused the immediate death, yet, if satisfied that the burning was the primary cause of the death, and the blow only hastened it, it would be their duty to convict." This instruction was given upon the supi)osition that the blow was inflicted by another person, and the proposition could be true only when the testimon}- connected the acts of such per- son with the prisoner, so as to make them both guilt\', and we at first thought such was the proper construction to be put upon the language used bj- his Honor ; but, upon reflection, we are satisfied that a broader proposition was laid down, to wit: that if the prisoner inflicted a mortal wound, of which the deceased must surely die, and then another person, having no connection with him, struck the child a blow, which merely hastened its death, the prisoner would still be guilt}-. The testimony presented a view of the case to which this proposition was applicable, and it becomes our duty to decide whether it can be sustained upon any recognized principles of law. Murder is the killing, with malice prepense, a reasonable being within the peace of the State, The act of killing, and the guilty intent, must concur to constitute the oflfence. An attempt, only, to kill with the most diabolical intent, may be moral, but cannot be legal, murder. If one man inflicts a mortal wound, of which the victim is languishing, and then a second kills the deceased by an independent act, we cannot imagine how the first can be said to have killed him, without involving the absurdity of saying that the deceased was killed twice. In such a case, the two persons could not be indicted as joint murderers, because there was no understanding or connection between them. It is certain that the second person could be convicted of murder, if he killed with malice aforethought ; and to convict the first would be assuming that he had also killed the same person at another time. Such a proposition cannot be sustained. The prisoner must have a new trial. This renders it unnecessary for us to consider the effect of the alleged erroneous entry of the verdict. Per Curiam. Judgment reversed. 70 COREY V. HAVENER. [CHAP. II. COREY V. HAVENER. Supreme Judicial Court of Massachusetts, 1902. [Reported 182 Mass. 250.] Two actions of tort by the same plaintiff against different defendants for injuries to the plaintiff and to his wagon caused by the alleged negli- gence of both defendants, each operating a separate gasoline motor tricycle at an illegal and dangerous rate of speed and frightening the plaintiff's horse. Writs dated December 22, 1900. In the Superior Court the two cases were tried together before Pierce, J. It appeared that the plaintiff, who was very deaf and could only hear by the use of an ear trumpet, was driving slowly in a wagon along Shrewsbury Street, a public street and main thoroughfare in Worcester; that the defendants came up from behind and passed the plaintiff at a high rate of speed one on each side; that each defendant was mounted on a motor tricycle with a gasoline engine making a loud noise and emitting steam, some of the plaintiffs' witnesses saying that the machines emitted steam and smoke, making a cloud about the defendants as they rode. The plaintiff testified that his horse took fright when the defend- ants first passed but was under control and guidance until he over- took the defendants, and that running between them the horse shied and he then lost control. His wagon wheel struck another wagon going in the same direction, and the injuries to himself and his wagon occurred. The plaintiff and each of his witnesses was asked on cross-examination if he could tell which defendant or which vehicle caused the horse to take fright, and each witness was unable to tell. The defendants requested the judge to instruct the jury, that the evidence showing that they were on two separate vehicles entirely independent of each other, and there being two different suits for the same injury, the burden was on the plaintiff to show which one of the defendants, if either, was to blame; and that, if it was not clearly shown which one of the defendants caused the accident, the plaintiff could not recover. The defendants also requested the judge to instruct the jury that there being two defendants and two separate suits, and the cause of action against each being for the same injury, if the jury found for the plaintiff they must assess the full damages and determine against which defendant, and that they could not assess full damages against both, as that would be giving double damages. The judge refused to give either of these instructions. The jury found for the plaintiff in each case and in each case assessed the damages in the sum of $700. The defendants alleged exceptions. Lathrop, J. The only question which arises in these cases is whether SECT. III.] GAY V. STATE. 71 the judge erred in refusing to give the instructions requested. The bill of exceptions does not set forth what instructions were given, and we must assume that they were appropriate to the case as presented by the evidence, and were correct. The verdict of the jury has estabHshed the fact that both of the defendants were wrongdoers. It makes no difference that there was no concert between them, or that it is impossible to determine what portion of the injury was caused by each. If each contributed to the injury, that is enough to bind both. Whether each contributed was a question for the jury. Boston & Albany Railroad v. Shanly, 107 Mass. 568, 578, and cases cited. It makes no difference that the defendants were sued severally and not jointly. If two or more wrongdoers contribute to the injury, they may be sued either jointly or severally. McAvoy v. Wright, 137 Mass. 207. The first request for instructions was therefore rightly refused. Nor was there any error in refusing to give the second request. If both defendants contributed to the accident, the jury could not single out one as the person to blame. There being two actions, the plaintiff was entitled to judgment against each for the full amount. There is no injustice in this, for a satisfaction of one judgment is all that the plaintiff is entitled to. Elliott v. Hayden, 104 Mass. 180; Savage v. Stevens, 128 Mass. 254; Luce v. Dexter, 135 Mass. 23, 26; McAvoy V. Wright, 137 Mass. 207; Galvin t\ Parker, 154 Mass. 346; Worcester County V. Ashworth, 160 Mass. 186, 189. Exceptions overruled} GAY V. STATE. Supreme Court of Tennessee, 1891. [Reported 90 Tenn. 645.] Lea, J. The plaintiff in error was indicted and convicted of a nui- sance in keeping and maintaining a hog-pen in a filthy condition. There were several witnesses who proved it was a nuisance. There were several who proved that the pen was kept remarkably clean, and was no nuisance; and several proved that, if there was a nuisance, it was caused bj- a number of hog-pens in the neighborhood. His Honor, among other things, charged the jury : " If the jury find that the smell created b^^ the defendant's pen was not sufficient within itself to constitute a nuisance, yet it contributed witli other pens in the neighborhood to forming a nuisance, the defendant woukl be guilty." This was error. The defendant can only be held liable for the con- sequences which his act produced. The nuisance complained of must be the natural and direct cause of his own act. » See also Brown r. Thayer, 212 Mass. 237, 99 N. E. 237; Matliews v. Tramways Co., 60 L. T. Rep. 47, Smith Cas. Torts 82. — Ed. \ ' 72 CASTELL, WIDOW, V. BAMBRIDGE AND CORBET. [CHAP. II. CASTELL, WIDOW, v. BAMBRIDGE AND CORBET. Guildhall. 1730. [Reported 2 Stranr/e, 854.] The defendant Bambridge, having been prosecuted on the report of the committee of the House of Commons for the murder of tiie plain- tiflTs husband, who was a prisoner in the Fleet under the custod}' of Bambridge the warden, and having on the trial been honorably acquit- ted upon the prosecutor's own evidence, was followed with an appeal, to which Corbet, who on the cross-examination appeared to be a ma- terial witness for Bambridge, was now also made an appellee.^ Upon this the appeal was arraigned, setting forth that the appellant's husband was a prisoner in ihe Fleet under the custody of Bambridge the warden, who made an assault upon him, and contrary to liis will carried him to the house of Corbet, a victualling house within the Fleet, and there imprisoned him, where one White then lay ill of the small- pox, which Castell had never had ; that the appellees had notice of this, and were desired to sutfer him to remove to another place in the prison, which they refused, and afterwards Castell fell ill of that distemper, and died in Corbet's house, whereb}-, the count concludes, the appellees were guilty of his murder. Without staying for a copy of the declaration the appellees instanter pleaded not guilty, and their plea was rehearsed in French, and issue joined. Upon the 26th of Januar}' the trial came on at Guildhall before the Chief Justice [Raymond]. After a long examination the Chief Justice directed the juiy that if they believed Castell was carried to Corbet's against his consent, and was there so detained, that Bambridge and Corbet knew the small-pox was there, that Castell had not had it, but feared it, and desired to be removed, or not be carried there at all, that he caught the small-pox of White, and died thereof, — then the appellees would be guilty of murder ; but if any one of these facts were not proved to the satisfaction of the jur\', they ought to be acquitted. And there being no pretence to charge either of the appellees, the jury brought them in not guilty.* 1 Part of the case, involving questions of procedure only, is omitted. 2 See Rex u. Huggius, 2 Ld. Hajra. 1574, 2 Strange, 862. In this case Lord Chief Justice Kavmond said : " There is no particular way of killing another that is neces- sary to coTistitute a murder ; but the committing of murder is as various as the several ways of putting an end to life. In the case of a prisoner there is no occasion for an actual stroke : the restraining him by force, and killing him by ill-usage, is enough to constitute this offence. All the authors who speak of this species of murder describe it by a general expression j>er dure ifardc de ses yardens." — Ed. SECT. III.] REGINA V. TOWERS. 73 REGINA V. GREENWOOD. Liverpool Assizes. 1857. [Reported 7 Cox C. C. 404.] The prisoner was indicted for murder and rape on a child under ten. It appeared from the evidence that the prisoner had connection with the deceased, and that it was afterwards discovered she had the venereal disease. Fernley and C H. Hopicood, for the prosecution. Cohbett, for the prisoner. WiGHTMAN, J., told the jur^' that the malice which constitutes mur- der might be either express or implied. There was no pretence in this case that there was any malice other than what might be implied by law. There were five questions for them to consider, Plrst, had the prisoner connection with her? Second!}', did she die therefrom? Thirdly, had she the venereal disease? Fourthly, did she die from its effects? Fifthly, did she get it from the prisoner? If they were of opinion that the prisoner had connection with her, and she died from its effects, then that act being, under the circum- stances of this case, a felony in point of law, this would, of itself, be such malice as would justify them in finding him guilty of murder. The jury retired, and, after some time, returned into court saying that they were satisfied that he had connection, and that her death resulted therefrom, but were not agreed as to finding him guilt}' of murder. WiGHTMAN, J., told them that, under these circumstances, it was open to them to find the prisoner guilt}' of manslaughter, and that they might ignore the doctrine of constructive malice if they thought fit. The jury found a verdict of manslaughter, and the prisoner was ordered to be kept in penal servitude for life. REGINA V. TOWERS. Carlisle Assizes. 1874. [Reported 12 Cox C. C. 530.] Wilson Towers was charged with the manslaughter of John Heth- erington at Castlesowerby on the 6th of September, 1873. The prisoner, who had been drinking on the 4th of August, went into a public-house at New Yeat near Castlesowerby, kept by the ■piother of the deceased, and there saw a girl called Fanny Glaister nursing the deceased child, who was then only about four months 7-i REGINA V. TOWERS. [CHAP. II. and a half old, having been born on the 20th of March, 1873. The prisoner, who appeared to have had some grievance against Fanny (ilaister about her hitting one of his children, immediately on entering the public-house went straight up to where she was, took her by the hair of the head, and hit her. She screamed loudly, and this so frightened the infant that it became l)lack in the face ; and ever since tli;it day up to its death it had convulsions and was ailing generally fi'oin a shock to the nervous system. The child was previously a very healthy one.^ Henry submitted that there was no case to go to the jury, but Denman, J., said, that he should leave it to the jury to say whether the death of the child was caused b}- the unlawful act of the prisoner, or whether it was not so indirect as to be in the nature of accident. This case was different from other cases of manslaughter, for here the child was not a rational agent, and it was so connected with the girl that an injur}- to the girl became almost in itself an injur}- to the child. Uenman, J., in summing up, said it was a very unusual case, and it was very unusual indeed to find a case in which thej got practically no assistance from previouslv decided cases. There was no offence known to our law so various in its circumstances and so various in tlie considerations applicable to it as that of manslaughter. It might be that in this case, unusual as it was, on the principle of common law manslaughter had been committed by the prisoner. The prisoner com- mitted an assault on the girl, which is an unlawful act, and if that act, in their judgment, caused the death of the child, i. e., that the child would not have died but for that assault,, they might find the prisoner guilty of manslaughter. He called their attention to some considera- tions that bore some analog}' to this case. This was one of the new cases to which they had to apply old principles of law. It was a great advantage that it was to be settled by a jury and not by a judge. If he were to say, as a conclusion of law, that murder could not have been caused by such an act as this, he might have been laying down a dangerous precedent for the future ; for to commit a murder a man might do the very same thing this man had done. They could not commit murder upon a grown-up person by using language so strong or so violent as to cause that person to die. Therefore mere intimida- tion, causing a person to die from fright by working upon his fancy, was not murder. But there were cases in which intimidations had been held to be murder. If for instance four or five persons were to stand round a man and so threaten him and frighten him as to make him believe that his life was in danger, and he were to back away from them and tumble over a precipice to avoid them, then murder would have been committed. Then did or did not this principle of law apply to the case of a child of such tender years as the child in question? ^ The evideucc is umitted. SECT. III.] REGINA V. TOWERS. 75 For the purposes of the case he would assume that it did not; for the purposes of to-da}' he sliould assume that the hiw about working upon people b}- fright did not apply to the case of a child of such tender years as this. Then arose the question, which would be for them to decide, whether this death was directly the result of the prisoner's un- lawful act, whether the}' thought that the prisoner might be held to be the actual cause of the child's death, or whether they were left in doubt upon that upon all the circumstances of the case. After referring to the supposition that the convulsions were brought on owing to the child teething he said that even though the teething might have had some- thing to do with it, yet if the man's act brought on the convulsions, or brought them to a more dangerous extent, so that death would not have resulted otherwise, then it would be manslaughter. If, therefore, the jury thought that the act of the prisoner in assaulting the girl was entirel}' unconnected with it, that the death was not caused by it, but b}' a combination of circumstances, it would be accidental death and not manslaughter.^ JV^ot gtiilty. 1 Compare Reg. v. Murton, 3 F. & F. 492. In charging tlie jury in tliat case Byles, J., said : — Within a few hours of her death the woman said that her husband had caused her death, hut to some of tiie witnesses slie said that he had " broken her heart," and that being turned out of her home had caused her death. Taken all together these dying declarations are, perhaps, more in favor of than against the jirisoner ; for if the woman died of a broken heart, and from anguisli at l)eing turned out of lier home, it would not be a case of manslaughter. To constitute that crime there must Iiave been some physical or corporeal injury, negative or positive, as a blow, or tlie depri- vation of necessaries, or the like. Almost the last thing she had said was, " That villain has broken my heart." There was, however, violence, which, according to the evidence, mi(]ht have accelerated lier deatli. ... It is clearly the law that if the death was accelerated by violence, so that death happened sooner tiian it otherwise would have done, that is homicide. It is not murder, unless death was intended, but it is manslaugliter if the violence hastened the death. Mere unkind or unhusbandlike u.sage is not enough, and there must l)e violence, physical or corporeal. If the being treated so and turned out of her home had preyed upon her spirits and broken her heart, it is not a case of manslaughter, and human tribunals can take no cognizance of it as a criminal offence. The question, then, for you lies in a very narrow compass indeed. The question is, was the violence used towards the deceased on the kitciien floor Oil that night the cause of her death in this sen.se— that it hastened her death? That is, did it cause her to die sooner than she otherwise would have died? Did the blows, or the throwing on the floor, or both conjointly, hasten her death, and cause her to die sooner than she otherwise would have done? If so you should find the prisoner guilty; if not, acquit him. — Ed. 76 CENTRAL OF GEOROIA RAILWAY CO. V. PRICE. [CHAP. II. SECTION IV. Remote Consequences. REX I'. GILL. King's Bench. 1719. [Reported 1 Strange, 190.] An indictment for throwing skins down into a man's yard, which was a pubHc way, per quod another man's eye was beat out. On the evi- dence it appeared the wind took the skin and blew it out of the way, and so the damage happened. The Chief Justice [Pratt] remembered the case of the hoy^ and that in Hobart,^ where, in exercising, one soldier wounded another, and a case in the year-book, of a man lopping a tree, where the bough was blown at a distance and killed a man. And in the principal case the defendants were acquitted. CENTRAL OF GEORGIA RAILWAY COMPANY v. PRICE. Supreme Court of Georgia, 1898. [Reported 106 Ga. 176.] Simmons, C. J. The record discloses that Mrs. Price was a passen- ger on a train of the defendant company, and that her destination was Winchester, Georgia. Through the negligence of the conductor, she was not put off at Winchester, but was carried on to Montezuma. LTpon her arrival at the latter place, the conductor ad\nsed her to go to the hotel and spend the night, he agreeing to carry her back to Winchester in the morning when his train made the return trip. He accompanied her to a hotel where a room was assigned her, the con- ductor agreeing with the proprietor to pay her expenses. She was taken to her room by the proprietor or his servants, and furnished with a kerosene lamp which she left burning after she had retired to bed. Sometime during the night the lamp, she claims, exploded and set fire to a mosquito net which covered the bed, and in her efforts to ex- tinguish the flames her hands were badly burned. . . . The injury was occasioned by the negligence of the proprietor of the hotel or his servants in gi\nng her a defective lamp. The neg- ligence of the company in passing her station was, therefore, not the ' Amies v. Stevens, 1 Stra. 128. ^ Weaver v. Ward, Hob. 134. SECT. IV.] CENTR.\L OF GEORGIA RAILWAY CO. V. PRICE. 77 natural and proximate cause of her injury. There was the interposi- tion of a separate, independent agency, the negligence of the proprie- tor of the hotel, over whom, as we have shown, the railway company neither had nor exercised any control. Civil Code, §§3912, 3913? Perry v. Central Ry., 66 Ga. 746; Mayor etc. of Macon v. Dykes, 103 Ga. 847; South-Side etc. Co. v. Trich, 117 Pa. St. 390, 11 Atl. 627; Wood v. Railway Co. 117 Pa. St. 306, 35 Atl. 699; Lewis v. Ry. Co., 54 Mich. 55, 19 N. W. 744; Hoag v. Ry. Co., 85 Pa. St. 293; Sira v. Ry. Co., 115 Mo. 127, 21 S. W. 905; Gulf etc. Ry. Co. v. Shields, 9 Tex. Civ. App. 652, 29 S. W. 652; Smith v. Bolles, 132 U. S. 125. The in- juries to the plaintiff were not the natural and proximate consequences of carrying her beyond her station, but were unusual and could not have been foreseen or provided against by the highest practicable care. The plaintiff was not entitled to recover for such injuries, and the court erred in overruling the motion for new trial. Judgment reversed. 78 STATE V. o'bRIEN. " [cHAP. HI. CHAPTER III. LIABILITY BASED OX PROXIMATE CAUSATION. SECTION I. No Intervening Force. STATE V. OT.RIEN. Supreme Court of Iowa. 1890. [Reported 81 Iowa, 88.] The defendant was indicted for the crime of murder, and upon a trial was found guilty of manslaughter. He was adjudged to be im- prisoned for two years at liard labor in the penitentiary at Anamosa, and to pay the costs, and from that judgment he appeals. Robinson, J.^ It is suggested that the verdict is not supported by the evidence, and that it is not shown that the death of Stocum resulted from injuries inflicted by the defendfvnt. The evidence shows that decedent had not been in good healtli for several months. About three weeks before the assault in question, he consulted a physician, who found his heart in a diseased condition, and treated him for heart difficulty. He improved steadily under that treatment until the assault was made. If his testimony at the preliminary examination and his dying declaration were correct, he was choked and kicked and otherwise grossly maltreated by defendant. It is certain that he was greatly excited by the encounter. Immediately after it occurred he applied at a house in the vicinity for shelter, stating that he was afraid to go home on account of defendant and the Murphy boys. A witness says of his appearance at tl)at time: "• He acted just scared to death. His face was as pale as deatii ; his lips were swollen. His hat was torn and had mud on' both sides." His health failed rapidly from that time. A witness who saw him the day after the assault describes his appearance and condition as follows : "I discovered he was in pretty bad shape ; he was pale, haggard ; ahnost impossil)le for him to breathe. I thought he would reel right over on the stoop tiiere. His shoulder-blades worked like a bellows. His voice was weak. His lips, dark blue." The medical testimony sliows that his condition and failing health after the assault, and his death, were natural and probable results of his physical condition on the night of July 15, and of great excitement and physical exertion. It was the province of the jury to determine whetlier the wrong of defendant caused or contributed to decedent's death. The fact that he was afflicted with a disease which might have proved fatal would not 1 Tart ouly of the opinion is given. SECT. I.] ARilSTRONG V. MONTGOMERY STREET R.\ILWAY CO. 79 justify the wrongful acts of defendant, nor constitute a defence in Jaw. State V. Smith, 73 Iowa, 32. Nor would ignorance on the part of defendant of the diseased pliysical condition of Stocum excuse his acts. State V. Castello, G2 Iowa, 404. We think the evidence sufficient to sustain the verdict, and find no error prejudicial to defendant of which he can complain. The judgment of the district court is affirmed. ARMSTRONG v. MONTGOMERY STREET RAILWAY CO. Supreme Court of Alabama, 1899. [Reported 123 Ala. 233.] This action was brought by the appellant, L. J. Armstrong, as ad- ministratrix of the estate of Charles x\rmstrong, deceased, against the appellee, to recover damages for personal injuries alleged to have been inflicted on plaintiff's intestate, by reason of the negligence of the defendant or its employes, and which resulted in the death of plaintiff's intestate.^ McClellan, C. J. As to the intestate's injuries and death, the testimony, as given by the physician who attended him, was as follows. . . . "He had no wounds except those on the head and hand, and no other positive e\'idences of hurt on his body as far as I could see. Those wounds did not directly produce death. They produced septice- mia which caused his death- By septic infection is meant poisoning of the system from germs, or products of germs, introduced into the blood through wounds, or other sources; it is a paralysis of the system due to the presence of germs or particles of germs in the system." Upon this e^^dence it is sought to justify the affirmative charge for the defend- ant, which was given by the trial court; the contention being that, if believed by the jury, it showed that the injury sustained by the intestate was not the proximate cause of his death, but that his death was the re- sult of an independent, intervening cause, to wit : the septicemia, or blood poisoning which set in or began to infect his system several days after the injuries were received. It is difficult to conceive how this position can be even plausibly supported. It is clear on this evidence that in- testate's death resulted in direct line and sequence of causation from the injuries he received in the fall from the car. So far from there being an independent, superseding or responsible cause of death other than these injuries, there is absolutely no other cause shown or hinted at in this evidence. The fall produced the injuries; the injuries pro- duced blood poisoning, and the blood poisoning produced death. There was no break in the chain of causation from the alleged negligent act to the death of intestate. The blood poisoning was not an in- ' Several points were raised in this appeal, of which one only is considered here. — Ed. 80 L-iTSTN GAS & ELECTRIC CO. V. MERIDEN INS. CO. [cHAP. III. dependent cause. It was not a superseding cause. It was itself a result, or, perhaps more accurately, a mere development of the inju- ries. It is not an important consideration, even if it be a fact, that blood poisoning is not a usual and ordinary result or development of wounds of the character inflicted upon the intestate. It is not of con- sequence that the defendant or its motorman did not have the infection of septicemia in contemplation when the intestate was injured. They did not, we take it, have in contemplation even the mashing of his hand, and if they did they would be guilty much beyond the charges made by this complaint. The logical rule in this connection, the rule of common sense and human experience as well, (if indeed there can be a difference between a logical doctrine and one of common sense and experience, as some authorities appear to hold), is that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circum- stances which in fact existed, whether they could have been ascer- tained by reasonable diligence or not, would, at the time of the neg- ligent act, have thought reasonably possible to follow, if they had occurred to his mind. — 1 Sher. & Red. Negligence, § 29. That there was a reasonable possibility of blood poisoning being developed or pro- duced by the wounds which intestate received admits of no controversy. That blood poisoning did result from the wounds is to like degree clear on the evidence; and confessedly blood poisoning produced death. Death was, therefore, within the range of responsibility for the negli- gent act which inflicted the wounds; and instead of the affirmative charge for defendant being justified on the theory that the e\'idence showed that death did not result from the injuries, the court might well have instructed the jury to find that the injuries did produce the death if they believed the evidence.^ LYNN GAS & ELECTRIC CO. v. MERIDEN INSURANCE CO. Supreme Judicial Court of Massachusetts, 1893. [Reported 158 Mass. 570.] Knowlton, J. The only exception relied on by the defendants in these cases is that relating to the claim for damage to the machinery used in generating electricity and to the building from a disruption of 1 See also McGarrahan t. New York, N. H. & H. R. R., 171 Mass. 211, 50 N. E., 610; Ginna r. Second Ave. R. R., 67 N. Y., 596.— Ed. SECT. I.] LYXX GAS & ELECTRIC CO. V. MERIDEN INS. CO. 81 the machinery. This machinery was in a part of the building remote from the fire, and none of it was burned. In his charge to the jury the judge stated the theory of the plaintiff as follows: "The plaintiff says the position of the lightning arresters in the vicinity of the fire was such that by reason of the fire in the tower a connection was made between them called a short circuit; that the short circuit resulted in keeping back or in bringing into the dynamo below an increase of electric current that made it more difficult for this armature to revolve than before, and caused a higher power to be exerted upon it, or at least caused greater resistance to the machinery; that this resistance was transmitted to the pulley by which this armature was run, through the belt; that that shock destroyed that pulley; that by the destruc- tion of that pulley the main shaft was disturbed and the succeeding pulleys up to the jack-pulley were ruptured; that by reason of pieces flying from the jack-pulley, or from some other cause, the fly-wheel of the engine was destroyed, the governor broken, and everything crushed; — in a word, that the short circuit in the tower by reason of the fire caused an extra strain upon the belt through the action of electricity, and that caused the damage." The plaintiff contended that the short circuit was produced by the fire, either by means of heat on the horns of the lightning arresters, or by a flame acting as a conductor between the two horns, or in some other way. The jury found that the plain- tiff's theory of the cause of the damage was correct, and the question is whether the judge was right in ruling that an injury to the machinery caused in this way was a "loss or damage by fire," within the meaning of the policy. The subject matter of the insurance was the building, machinery, dynamos, and other electrical fixtures, besides tools, furniture, and supplies used in the business of furnishing electricity for electric lighting. The defendants, when they made their contracts, understood that the building contained a large quantity of electrical machinery, and that electricity would be transmitted from the dynamos, and would be a powerful force in and about the building. They must be presumed to have contemplated such effects as fire might naturally produce in connection with machinery used in generating and transmitting strong currents of electricity. The subject involves a consideration of the causes to which an effect should be ascribed when several conditions, agencies, or authors contribute to produce an effect. The defendants contend that the application of the principle which is expressed by the maxim, In jure non remota causa scd proxima spectatur, relieves them from liability in these cases. It has often been necessary to determine, in trials in court, what is to be deemed the responsible cause which furnishes a foundation for a claim when several agencies and conditions have a share in causing damage, and the best rule that can be formulated is often difficult of application. When it is said that the cause to be 82 LYlSiN GAS & ELECTRIC CO. V. MERIDEN INS. CO. [cHAP. IH. sought is the direct and proximate cause, it is not meant that the cause or agency which is nearest in time or place to the result is nec- essarily to he chosen. Freeman v. Mercantile Accident Association, 156 Mass. 351. The active efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source is the direct and proximate cause referred to in the cases. McDonald V. SneUing, 14 Allen, 290; Perley v. Eastern Railroad, 98 Mass. 414, 419; Gibney v. State, 137 N. Y. 529. In Milwaukee & St. Paul Railway v. Kellogg, 94- U. S. 469, 474, Mr. Justice Strong, who also wrote the opinions in Insurance Co. v. Transportation Co., 12 Wall. 194, and in Western Massachusetts Ins. Co. v. Transportation Co., 12 Wall. 201, which are much relied on by the defendants, used the fol- lowing language in the opinion of the court: "The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proxi- mate cause of the movement, or as in the oft-cited case of the squib thrown in the market-place. 2 Bl. Rep. 892. The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a contin- uous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?" If this were an action against one who negligently set the fire in the tower, and thus caused the injury to the machinery, it is clear, on the theory of the plaintiff, that the negligent act of setting the fire would be deemed the active efficient cause of the disruption of the ma- chinery and the consequent injury to the building. It remains to in- quire whether there is a different rule in an action on a policy of fire insurance. Under our statute creating a liability for damages received from defects in highways, it is held that the general rule is so far modified that there can be no recovery unless the defect is the sole cause of the accident; but this doctrine rests on the construction of the statute. Tisdale v. Norton, 8 Met. 388; Marble v. Worcester, 4 Gray, 395; Jenks V. Wilbraham, 11 Gray, 142; McDonald v. SneUing, 14 Allen, 290; Babson v. Rockport, 101 Mass. 93. In suits brought on policies of fire insurance, it is held that the intention of the defendants must have been to insure against losses where the cause insured against was a means or agency in causing the loss, even though it was entirely due to some other active, effic- ient cause which made use of it, or set it in motion, if the original efficient cause was not itself made a subject of separate insurance in the contract between the parties. For instance, where the negligent act of the insured, or of anybody else, causes a fire, and so causes damage. I SECT. I.] LYNN GAS & ELECTRIC CO. V. MERIDEN INS. CO. 83 although the negligent act is the direct, proximate cause of the damage, through the fire, which was the passive agency, the insurer is held liable for a loss caused by the fire. Johnson v. Berkshire Ins. Co., 4 Allen, 388; Walker r. Maitland, 5 B. & Aid. 171; Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213; Peters v. Warren Ins. Co., 14 Pet. 99; General Ins. Co. v. Sherwood, 14 How. 351; Insurance Co. v. Tweed, 7 Wall. 44. This is the only particular in which the rule in regard to remote and proximate causes is applied differently in actions on fire in- surance policies from the application of it in other actions. A fail- ure sometimes to recognize this rule as standing on independent grounds and established to carry out the intention of the parties to contracts of insurance, has led to confusion of statement in some of the cases. The difficulty in applying the general rule in complicated cases has made the interpretation of some of the decisions doubtful; but on principle, and by the weight of authority in many well-considered cases, we think it clear that, apart from the single exception above stated, the question. What is a cause which creates a liability? is to be determined in the same way in actions on policies of fire insurance as in other actions. Scripture v. Lowell Ins. Co., 10 Cush. 356; New York & Boston Despatch Express Co. v. Traders & Mechanics' Ins. Co., 132 Mass. 377; St. John v. American Ins. Co., 1 Kernan, 516; General Ins. Co. v. Sherwood, 14 How. 351; Insurance Co. v. Tweed, 7 Wall. 44; Waters v. Merchants' Louisxalle Ins. Co., 11 Pet. 213, 225; Livie v. Janson, 12 East, 648; lonides v. Universal Ins. Co., 14 C. B. (N. S.) 259; Transatlantic Ins. Co. v. Dorsey, 56 Md. 70; United Ins. Co. v. Foote, 22 Ohio St. 340. In the present case, the electricity was one of the forces of nature, — a passive agent working under natural laws, — whose existence was known when the insurance policies were issued. Upon the theory adopted by the jury, the fire worked through agencies in the building, the atmosphere, the metallic machinery, electricity, and other things; and working precisely as the defendants would have expected it to work if they had thoroughly understood the situation and the laws appli- cable to the existing conditions, it put a great strain on the machinery and did great damage. No new cause acting from an independent source intervened. The fire was the direct and proximate cause of the damage according to the meaning of the words " direct and proximate cause," as interpreted by the best authorities. The instructions to the jury were full, clear, and correct, and the defendants' requests for instructions were rightly refused. Exceptions overruled} » See also Phillips v. New York C. & H. R. R. R., 127 N. Y. 657, 27 N. E. 978. — Ed. 84 WOOD V. PENNSl LVANIA RAILROAD COMP.^J^Y. [CHAP. III. WOOD V. PENNSYLVANIA RAILROAD CO. Supreme Court of Pennsylvania, 1896. [Reported 177 Pa. 306.] Dean, J. We take the facts as stated by the court below, as follows: "On the 26th of October, 1893, the plaintiff, having bought a return ticket, went as a passenger upon the railroad of the defendant com- pany from Frankford to Holmesburg. After spending the day there attending to some matters of business, he concluded to come back upon a way train due at Holmesburg at five minutes after six in the evening. While waiting for tliis train, the plaintiff stood on the platform of the station, which was on the north side of the tracks, at the eastern end of the platform with his back against the wall at the corner. To the eastward of the station, a street crosses the railroad at grade. How far this crossing is from the station does not appear from the evidence. It was not so far away, however, but that persons on the platform could see objects at the crossing. For at least one hundred and fifty yards to the eastward of the crossing, the railroad is straight, and then curves to the right. About 6 o'clock, an express train coming from the eastward upon the north track passed the station, and the plaintiff, while standing in the position described, was struck upon the leg by what proved to be the dead body of a woman, and was in- jured. The headlight of the approaching locomotive disclosed to one of the witnesses who stood on the platform two women in front of the train at the street crossing, going from the south to the north side of the tracks. One succeeded in getting across in safety, and the other was struck just about as she reached the north rail. How the woman came to be upon the track, there is nothing in the evidence to show. There was evidence that no bell was rung or whistle blown upon the train which struck the woman before it came to the crossing, and some evidence that it was running at the rate of from fifty to sixty miles an hour. Upon this state of facts, the trial judge entered a non- suit." The court in banc having afterwards refused to take off the nonsuit, we have this appeal. Was the negligence of defendant the proximate cause of plaintiff's injury? Judge Pennypacker, delivering the opinion of a majority of the court below, concluded it was not, and refused to take off the non-suit. Applying the rule in Hoag r. Railroad Co., 85 Pa. 293, to these facts, the question on which the case turns is: "Was the injury the natural and probable consequence of the negligence, — such a con- sequence as under the surrounding circumstances might and ought to have been foreseen by the wrongdoer as likely to flow from his act." SECT. I.] WOOD V. PENNSYLVANIA RAILROAD COMPANY. 85 As concerns the situation of plaintiff at the time of his injury, and the relation of that fact to the cause, whether near or remote, we do not consider it important. He was where he had a right to be, on the platform of the station; that he had purchased a ticket for passage on defendant's road and was waiting on its platform for his train has no particular bearing on the question. The duty of defendant to him at that time was to provide a platform and station, safe structures, for him and others who desired to travel. In this particular, its duty was performed; the injury is not in the remotest degree attributable to the platform or the station. It is sufficient to say, when there he was not a trespasser on defendant's property, and therefore his action does not fail for that reason ; but he is in no more favorable situation as a suitor, than if he had been walking alongside the railroad, on the public highway, or at any other place where he had a right to be. The rule quoted in Hoag v. Railroad, supra, is in substance the con- clusion of Lord Bacon, and the one given in Broom's Legal Maxims. It is not only the well settled rule of this state, but is, generally, that of the United States. Professor Jaggard, in his valuable work on torts, after a reference to very many of the cases decided in a large number of the states, among them Hoag v. R. R. Co., comes to this conclusion: " It is admitted that the rule is difficult of application. But it is gen- erally held that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is a proximate cause of an injury, it must appear that the injury was the natural and probable conse- quence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances:" Jaggard on Torts, chap. v. Judge Cooley states the rule thus: "If the original act was wrongful, and would, naturally, according to the ordinary course of events, prove injurious to some others, and result, and does actually result, in injury, through the intervention of other causes not wTongful, the injury shall be referred to the wrongful cause, pass- ing through those which were innocent": Cooley on Torts, 69. This, also, is in substance the rule of Hoag v. Railroad Co. All the specula- tions and refinements of the philosophers on the exact relations of cause and effect help us very little in the determination of i-ules of social conduct. The juridical cause, in such a case, as we have held over and over, is best ascertained in the practical affairs of life by the application to the facts of the rule in Hoag v. Railroad Co. Adopting that rule as the test of defendant's liability, how do we determine the natural and probable consequences which must be foreseen, of this act? We answer, in this and all like cases, from com- mon experience and observation. The probable consequence of cross- ing a railroad in front of a near and approaching train is death or serious injury; therefore, acting from an impulse to self-preservation, or on the reflection that prompts to self-preservation, we are deterred from crossing. Our conduct is controlled by the natural and probable 86 WOOD V. PENNSYLVANIA RAILROAD COMPANY. [cHAP. III. consequence of what our experience enables us to foresee. True, a small number of those who have occasion to cross railroads are reck- less, and either blind to or disregardful of consequences, cross and are injured, killed or barely escape; but this recklessness of the very few in no degree disproves the foreseeableness of the consequences by mankind generally. Again, the competent railroad engineer knows, from his own experience and that of others in like employment, that to approach a grade highway crossing with a rapidly moving train without warning is dangerous to the lives and limbs of the public using the crossing; he knows death and injury are the probable consequences of his neglect of duty, therefore he gives warning. But does any one believe the natural and probable consequence of standing fifty feet from a cross- ing to the one side of a railroad, when a train is approaching, either with or without warning, is death or injury? Do not the most prudent, as well as the public generally, all over the land, do just this thing every da,v, without fear of danger? The crowded platforms and grounds of railroad stations, generally located at crossings, alongside of ap- proaching, departing and swiftly passing trains, prove that the public, from experience and observation, do not, in that situation, foresee any danger from trains. They are there, because, in their judgment, although it is possible a train may strike an object, animate or inani- mate, on the track and hurl it against them, such a consequence is so highly improbable that it suggests no sense of danger; they feel as se- cure as if in their homes; to them it is no more probable than that a train at that point will jump the track and run over them. If such a consequence as here resulted was not natural, probable or foreseeable to anybody else, should defendant, under the rule laid down in Hoag V. Railroad Co. be chargeable with the consequence? Clearly, it was not the natural and probable consequence of its neglect to give warn- ing, and therefore was not one which it was bound to foresee. The in- jury, at most, was remotely possible, as distinguished from the natural and probable consequence of the neglect to give warning. As is said in Railroad Co. r. Trich, 117 Pa. 399: "Responsibility does not extend to every consequence wliich may possibly result from negligence." What we have said thus far is on the assumption, the accident was caused solely by the negligence of defendant, or by the concurring negligence of defendant and the one killed going upon the track with a locomotive in full view. This being an action by an innocent third person, he cannot be deprived of his remedy because his injury resulted from the concurrent negligence of two others. He fails because his injury was a consequence so remote that defendant could not reason- ably foresee it.^ ' The remainder of the opinion discusses the alleged negligence of the defendant. — Ed. SECT. I.] HILL V. WINSOR. 87 HILL V. WINSOR. Supreme Judicial Court of Massachusetts, 1875. [Reported 118 Mass. 251.] Tort against the owners of the steam-tug Argus for personal in- juries sustained by the plaintiff, through the alleged negligence of those in charge of the tug in causing her to strike violently against the fender of Warren Bridge, a bridge between Boston and Charles- town. Trial in the Superior Court, before Bacon, J., who allowed the following bill of exceptions: The plaintiff's evidence tended to show that the plaintiff, with other shipwrights and bridge builders, were, on December 12, 1872, em- ployed by those in charge of Warren Bridge to repair its fender; that this fender was on the upper side of it about eighteen feet from the main structiu-e, and extended from the draw to the wharf on the Charlestown side; that this fender, when perfect and in good order, consisted of large oak piles about fifteen inches in diameter at the top and about twelve feet apart, driven perpendicularly into the bed of the river, and two driven at a shght incline therefrom, trending down the river, and fastened to the lower part of the upright piles, and one trending up the river, whose top was fitted to, or intended to fit, the top of the upright pile, and to be fastened to it and to the cap thereon by spikes, the two piles trending down the river being of less length and diameter than the others ; that this cap, consisting of yellow pine timl^er fifteen inches square, extended along the whole row of piles, resting upon the tops of the same; that on said day a foreman, with six work- men, including the plaintiff, were employed in repairing the fender; that they worked in three parties, each party standing on planks sus- tained by spikes driven into the upper spurshores or inclined piles of the fender, and about nine or ten feet above the water of the river; that it was then half tide, the river deep, and the ebb-tide setting down at the rate of three to four miles per hour; that the men were standing on the planks, and working in pairs fitting the heads of the upper inclined pile or spurshore to the cap and to the tops of the upright piles; that two of these men were towards the Charlestown side from the plaintiff, and were working at a pile about thirty feet east from the spurshore where several of the defendants' witnesses testified that the tug struck; that the plaintiff was at work, standing alone on a plank about sixty feet east from said spurshore, his companion hux- ing left him a short time previously; that, in order to fit his spurshore to the pile and cap, he had put in a brace about twelve inches long and three inches in diameter, to keep the spurshore and pile apart while he was at work; that two more workmen were fitting a spurshore about sixty feet east of the plaintiff, and the foreman of the work was on the bridge; that a portion of the spurshores were not completed and 88 HILL r. WINSOR. [chap. III. fastened to the caps; that a f^w minutes before the tug struck against the spurshore, she had come down to the entrance of the draw from some point above the bridge. The defendants' ev-idence showed that their vessel .was about sixty -five feet in length; that while at the fh'aw the master of the tug was requested to tow down a raft lying near the Fitchburg Railroad Bridge, and, finding it difficult or impos- sible to turn around, he backed his tug towards the CharlestowTi shore, but was not able to reach the raft, as the tide swept him down towards the fender of the Warren Bridge; that, as he backed over, he passed near the fender, and was seen by the workmen thereon who were Ansible from his deck. The plaintiff's e\'idence further tended to show that when the master of the tug was nearly across the river, but could not reach the raft, and had drifted within a short distance of the fender, he started the tug with a xdew to return to the draw, and after running towards Boston, about her length, at the rate of three to four miles an hour, struck one of the upper spurshores of the fender at the point above described; that the blow jan-ed the fender for the distance of ninety feet; that the workmen, on the planks hung over the river, as soon as they heard the tug and saw it coming, sprung from their planks to reach the top of the fender, and all reached the cap except the plaintiff, who testified that, as he was at work, the first he. knew he heard a puffing noise coming along, and he turned his head and looked, and saw the boat coming, and just as he tlirew his hands over his head to grab at the pile, so as to jump upon the cap, and just as he grabbed the top of the pile, she struck about three piles from where he was, and the moment she struck there was a jar that jarred the whole thing, and knocked his brace out, and the piles came right together as quick as a flash, and caught his fingers between the pile and the cap, and his knee ran in between the two piles below the cap, and there he was fast ; that he never heard or saw the boat until he heard the puffing noise, and looked round and saw her coming; that after she first struck she came passing along, striking one pile and the other; that she went right along and struck the pile he was fast in, and she ran her whole length right up hard against it, and passed right on until she got one or two piles by him; that he was thus seriously injured.^ Colt, J. In actions of this description, the questions whether the plaintiff was himself in the exercise of due care, and the defendants' act negligent, whether the injury suffered was due to that act, as well as the amount of damage to the plaintiff, are, as a general rule, practical questions of fact to l)e settled by the knowledge and experience of the jury. The defendants' liability depends upon circumstances which, as the cases arise, are of infinite variety and combination. If there is any e\adence upon which the jury may legally found a verdict for the plaintiff, that verdict cannot be disturbed on exceptions as matter of 1 The remainder of the testimony and part of the opinion are omitted. — Ed. SECT. I.] RYAX V. NEW YORK CENTR.\L R.\ILROAD CO. 89 law, unless there has been some error in the conduct of the trial, or the judge has failed to state the true test of liability ir his instructions as applied to the facts disclosed. Under the instructions given in the present case, the jury must have found that the injury of the plaintiff was caused by neglect or want of ordinary care on the part of those who, as agents and ser- vants of the defendants, had charge of the tug-boat ; and that this neg- ligence consisted in not using such care in its navigation and manage- ment as persons of ordinary prudence would use under circumstances of like exposure and danger. They must have also found that the plaintiflF was himself in the exercise of due care in attempting to escape the peril to which he was exposed by the defendants' conduct, and that his injury was therefore due solely to the defendants' negligence. The e\ddence reported justifies these findings. The structure upon which the plaintiff was at work was imperfect and out of repair. Its condition at the time, the plaintiff's exposed position upon it, and the knowledge of that exposure which those in charge of the boat had, or in the exercise of due care might have had, were elements affecting the question of the defendants' negligence to which the attention of- the jury was especially called. It cannot be said, as matter of law, that the jury might not properly find it ob\aously probable that injury in some form would be caused to those who were at work on the fender liy the act of the de- fendants in running against it. This constitutes negligence, and it is not necessary that injury in the precise form in which it in fact resulted should have been foreseen. It is enough that it now appears to have been a natural and probable consequence. Lane v. Atlantic Works, 111 Mass. 136, and cases cited. RYAN V. NEW YORK CENTRAL RAILROAD CO. Court of Appeals of New York, 1866. [Reported 35 .V. Y. 210.] Hunt, J. On the 15th day of July, 1854, in the city of Syracuse, the defendant, by the careless management, or through the insufficient condition, of one of its engines, set fire to its woodshed, and a large quantity of wood therein. The plaintiff's house, situated at a distance of one hundred and thirty feet from the shed, soon took fire from the 90 RYAN V. NEW YORK CENTRAL RAILROAD CO. [ciL\P. III. heat and sparks, and was entirely consumed, notwithstanding diH- gent efforts were made to save it. A number of other houses were also burned by the spreading of the fire. The plaintiff brings this action to recover from the railroad company the value of his building thus destroyed. The judge at the Circuit non-suited the plaintiff, and the General Term of the fifth district affirmed the judgment. The question may be thus stated: A house in a populous city takes fire, through the negligence of the owner or his servant; the flames extend to and destroy an adjacent building: Is the owner of the first building liable to the second owner for the damage sustained by such burning? It is a general principle that every person is liable for the conse- quences of his own acts. He is thus liable in damages for the proxi- mate results of his own acts, but not for remote damages. It is not easy at all times to determine what are proximate and what are re- mote damages. In Thomas v. Winchester (2 Seld. 408), Judge Ruggles defines the damages for which a party is liable, as those which are the natural or necessary consequences of his acts. Thus, the owner of a loiaded gun, who puts it in the hands of a child, by whose indiscretion it is discharged, is liable for the injury sustained by a third person from such discharge. (5 Maule & Sel. 198.) The injury is a natural and ordinary result of the folly of placing a loaded gun in the hands of one ignorant of the manner of using it, and incapable of appreciating its effects. The owner of a horse and cart, who leaves them unattended in the street, is liable for an injury done to a person or his property, by the running away of the horse (Lynch r. Nurdin, 1 Adol. & Ellis, ' N. S., 29; Illidge v. Goodin, 5 Car. & P. 190), for the same reason. The injury is the natural result of the negligence. If the party thus injured had, however, by the delay or confinement from his injury, been prevented from completing a valuable contract, from which he expected to make large profits, he could not recover such expected profits from the negligent party, in the cases supposed. Such dam- ages would not be the necessary or natural consequences, nor the re- sults ordinarily to be anticipated, from the negligence committed. (6 Hill, 522; 13 Wend. 601; 3 E. D. Smith, 144.) So if an engineer upon a steamboat or locomotive, in passing the house of A., so care- lessly manages its machinery that the coals and sparks from its fires fall upon and consume the house of A., the railroad company or the steamboat proprietors are liable to pay the value of the property thus destroyed. (Field v. N. Y. Central R. R., 32 N. Y. 339.) Thus far the law is settled and the principle is apparent. If, however, the fire ^conununicates from the house of A. to that of B., and that is destroyed, is the negligent party liable for his loss? And if it spreads thence to the house of C, and thence to the house of D., and thence consecutively through the other houses, until it reaches and consumes the house of Z., is the party liable to pay the damages sustained by these twenty- SECT. I.] RYAN V. NEW YORK CENTRAL RAILROAD CO. 91 four suflFerers? The counsel for the plaintiff does not distinctly claim this, and I think it would not be seriously insisted that the sufferers could recover in such case. Where, then, is the principle upon which A. recovers and Z. fails? It has been suggested that an important element exists in the differ- ence between an intentional firing and a negligent firing merely; that when a party designedly fires his own house or his own fallow land, not intending, however, to do any injury to his neighbor, but a damage actually results, that he may be liable for more extended damages than where the fire originated in accident or negligence. It is true that the most of the cases where the Iial)ility was held to exist, were cases of an intentional firing. The case, however, of Vaughn v. Menlove (32 Eng. C. L. 613) was that of a spontaneous combustion of a hay- rick. The rick was burned, the owner's liuihlings were destroyed, and thence the fire spread to the plaintiff's cottage, which was also con- sumed. The defendant was held liable. Without deciding upon the importance of this distinction, I prefer to place my opinion upon the ground that, in the one case, to wit, the destruction of the building upon which the sparks were thrown by the negligent act of the party sought to be charged, the result was to have been anticipated the moment the fire was communicated to the building; that its destruction was the ordinary and natural result of its being fired. In the second, third or twenty-fourth case, as supposed, the destruction of the l^uilding was not a natural and expected result of the first firing. That a building upon which sparks and cinders fall should be destroyed or seriously injured must be expected, but that the fire should spread and other buildings be consumed, is not a necessary or an usual result. That it is possible, and that it is not unfrequent, cannot be denied. The result, however, depends, not upon any necessity of a further communica- tion of the fire, but upon a concurrence of accidental circumstances, such as the degree of the heat, the state of the atmosphere, the condition and materials of the adjoining structures and the direction of the wind. These are accidental and varying circumstances. The party has no control over them, and is not responsible for their effects. My opinion, therefore, is, that this action cannot be sustained, for the reason that the damages incurred are not the immediate but the remote result of the negligence of the defendants. The immediate result was the destruction of their own wood and sheds; beyond that, it was remote. There are some cases whicli, from the frequency of their citation, and their apparent inconsistency with the view I have taken, should be considered in this connection.^ Without determining its effect, it will be observed, that the fact exists in each of these cases, that the first act or impulse was volun- ' The foiirt here considered the cases of Scott r. Shepherd 2 W. Bl. 893; \'andea- burgh V. Truax, 4 Den. 464; Guille c. Swan, li) Johns. :iS\. — Ed. 92 RY.IN V. NEW YORK CEXTR-\L RAILROAD CO. [CHAP. III. tary and intentional on the part of the defendant. Shepherd inten- tionally threw his squib; Truax intentionally drove the negro boy; and Swan intentionally descended into the plaintiff's garden and invoked the aid of the multitude. In each case, too, the result was deemed by the court to be the inevitable consequence of the original unlawful or improper act. There would seem to be no inconsistency in prin- ciple between either of these cases and the conclusion already announced in the present case. \Miether the principle has been always correctly applied, it is not necessary to determine. That the defendant is not liable in this action may also be strongly argued, from the circumstance that no such action as the present has ever been sustained in any of the courts of this covmtry, although the occasion for it has been frequent and pressing. Particular instances are familiar to all, where such claims might have been made with pro- priety. The instance of the Harpers, occurring a few years since, is a striking one. (22 N. Y. 441). Their large printing establishment, in the city of New York, was destroyed by the gross carelessness of a workman, in throwing a lighted match into a vat of camphene. The fire extended, and other buildings and much other property was de- stroyed. The Harpers were gentlemen of wealth, and able to re- spond in damages to the extent of their liability. Yet we have no report in the books, and no tradition, of any action brought against them to recover such damages. The novelty of the claim, as was said by Judge Beardsley, in Costigan v. M. & H. R. R. Co., where the occasion for its being made had been so common, is a strong argument against its validity. (2 Denio, 609.) In The People v. Clark (10 Barb. 143), Judge Cady says : " The fact that the plaintiffs have never before this commenced an action to vacate a grant made by the king, because it was made upon false suggestions, furnishes strong evidence that the plaintiff's never had the right to bring such an action." It was Littleton's rule, "what never was, never ought to be." (1 Ver. 385.) To sustain such a claim as the present, and to follow the same to its legitimate consequences, would subject to a liability against which no prudence could guard, and to meet which no private fortune would be adequate. Nearly all fires are caused by negligence, in its extended sense. In a country where wood, coal, gas and oils are universally used, where men are crowded into cities and villages, where servants are employed, and where children find their home in all houses, it is impossible that the most vigilant prudence should guard against the occurrence of accidental or negligent fires. A man may insure his own house or his own furniture, but he canncH: insure his neighbor's building or furniture, for the reason that he has no interest in them. To hold that the owner must not only meet his own loss by fire, but that he must guarantee the security of his neighbors on both sides, and to an unlimited extent, would be to create a liability which would be the destruction of all civilized society. No community could long SECT. I.] SMITH V. LONDON & SOUTHWESTERN RAILWAY CO. 93 exist, under the operation of such a principle. In a commercial country, each man, to some extent, runs the hazard of his neighbor's conduct, and each, by insurance against such hazards, is enabled to obtain a reasonable security against loss. To neglect such precaution, and to call upon his neighbor, on whose premises a fire originated, to indemnify him instead, would be to award a punishment quite beyond the offense committed. It is to be considered, also, that if the negligent party is liable to the owner of a remote building thus consumed, he would also be liable to the insurance companies who should pay losses to such remote owners. The principle of subrogation would entitle the com- panies to the benefit of every claim held by the party to whom a loss should be paid. In deciding this case, I have examined the authorities cited from the Year Books, and have not overlooked the English statutes on the subject, or the English decisions extending back for many years. It will not be useful further to refer to these authorities, and it will be impossible to reconcile some of them with the view I have taken. The remoteness of the damage, in my judgment, forms the true rule on which the question should be decided, and which prohibits a recovery by the plaintiff in this case.^ Judgment should be affirmed. SMITH V. LONDON & SOUTHWESTERN RAILWAY CO. Court of Common Pleas, 1870. [Reported L. R. 6 C. P. 14.] Appeal from a decision of the Court of Common Pleas, discharging a rule to enter a verdict for the defendants or a non-suit. This was an action for negligence, and the declaration contained three counts, of which the second and only material one was as fol- lows : — " That at the time of the committing by the defendants of the griev- ances in this count mentioned, the plaintiff was possessed of a cottage and premises, and the defendants were possessed of and had the care and management of a railway running near the said cottage and prem- ises, with banks belonging thereto, and part of the said railway, and were possessed of locomotive engines containing burning substances, which were used by the defendants for conveying carriages along this railway. Yet, by the negligence and improper conduct of the defend- ants, and the want of due care on the part of the defendants in the 1 See also O'Neill v. New York O. & W. Ry., 116 N. Y. 579, 22 N. E. 217; Read t. Nicholas, 118 N. Y. 224, 23 N. E. 468; Hoag v. Lake Shore & M. S. R. R., 85 Pa. 293.— Ed. 9i SMITHj;. I,ONDOX & SOUTHWESTERX RAILWAY CO. [CHAP. III. keeping and management of their said railway engines and banks, quantities of cut grass and hedge trimmings were heaped up on the said railway and banks, and became and were ignited, and a fire was occasioned which spread over and along a stubble-field, near the said railway unto the said cottage and premises, and set fire to the sam.e, and thereby the same and the plaintiff's furniture, &c., then being in and near the said cottage and premises, were l)urnt and destroyed, and tlie plaintiff lost the use and enjoyment of the same." The defendants pleaded not guilty, and issue was joined thereon. The case was tried before Keating, J., at the summer assizes, 1869, held at Dorchester, when evidence was given for the plaintiff, which was in substance as follows : — It was proved that the defendants' railway passed near the plaintiff's cottage, and that a small strip of grass extended for a few feet on each side of the line, and was bounded by a hedge which formed the boundary of the defendants' land; beyond the hedge was a stubble- field, bounded on one side by a road, beyond which was the plaintiff's cottage. About a fortnight before the fire the defendants' servants had trimmed the hedge and cut the grass, and left the trimmings and cut grass along the strip of grass. On the morning of the fire the com- pany's servants had raked the trimmings and cut grass into small heaps. The summer had been exceedingly dry, and there had been many fires about in consequence. On the day in question, shortly after two trains had passed the spot, a fire was discovered upon the strip of grass land forming part of the defendants' property; the fire spread to the hedge and burnt through it, and caught the stubble-field, and, a strong wind blowing at the time, the flames ran across the field for 200 yards, crossed the road, and set fire to and burnt the plaintiff's cottage. There was no evidence that the defendants' engines were improperly constructed or worked; there was no evidence except the fact that the engines had recently passed, to show that the fire origi- nated from them. There was no e^^dence whether the fire originated in one of the heaps of trimmings or on some other part of the grass by the side of the line; but it was proved that several of the heaps were burnt by the fire. Two of the company's servants were proved to have been close to the spot when the fire broke out, and to have given the alarm, but they were not called by either side. At the close of the plaintiff's case the counsel for the defendants sub- mitted that there was no case to go to the jury. At the suggestion of the judge, and by consent, a verdict was taken for the plaintiff for 30/., subject to leave reserved to the defendants to move to set it aside, and instead thereof to enter a verdict for them, on the ground that tliere was no evidence to go to the jury of any liability on the part of the defenflants. The court to be at liberty to draw inferences and to amend the pleadings. The defendants applied for and obtained a rule pursuant to the SECT. I.] SMITH V. LONDON & S0UTIIWESTP:RX IIAILWAY CO. 95 leave reserved, which, after argument, ■was discharged, and from the judgment so given discharging the rule the present appeal was brought. Kingdon, Q. C. (Murch with him), for the defendants. There is no e\'idence that the trimmings was the cause of the fire. It w^as proved that they were partially consumed by it, but not that it originated in them. Nor was there any evidence that the fire was caused by sparks coming from the engine. There were many other ways in which it may have begun which are equally consistent with the evidence. Thus, a fusee may have been thrown from a window of one of the carriages of the train, or one of their workmen on the line may have dropped a spark from his pipe. Where the evidence is equally consistent with the view that the defendants were liable, and that they were not, there is no evidence to go to the jury. Kelly, C. B. I certainly entertained some doubts during the argu- ment as to whether the judgment of the Court below could be sustained; but when I consider the facts, I cannot but feel that it is a case in which there was some evidence of negligence on the part of the defendants, and negligence which caused the injury complained of. It appears that about the time that the spot in question was passed by an engine which, as we know, would emit sparks which would fall on the adjoin- ing ground, a fire was discovered on the defendants' ground adjoin- ing the line. It appears that it had been a dry summer, and the hot weather had continued for many weeks before the occurrence; and probably with a view to prevent mischief, the defendants I'lad caused the grass that grew by the line and the fence to be cut, and the cuttings of the grass and hedge were placed in small heaps on the ground between the rails and the hedge. On the other side of the hedge was a stubble- field of considerable extent which would be extremely dry, and at a dis- tance of two hundred yards across a road was the cottage belonging to the plaintiff. This was the state of facts. The trimmings caught fire, there was a strong south-east wind blowing; and though we have no proof of the exact progress of the fire, because the company's servants who had seen it were not called, it appears to have extended to and through the hedge and across the field to the plaintiff's cottage which was burnt. The question for us is, how all this occurred. There is some doubt how the fire originated, but there was ample evidence for the jury, which would have been rightly left to them, that it ori- ginated from sparks from the engine falling on the dry heaps of trim- mings, and thence extending to the hedge and stubble-field. If that was so, the question arises whether there was any negligence in the defendants. Now it can scarcely be doubted that the defendants were bound in such a summer, knowing that trains were passing from which sparks might fall upon them, to remove these heaps of trimmings; and, at any rate, it was a question for the jury whether it was not negligent of them not to do so. I think, therefore, there was a case for the jury 96 SMITH V. LONDON & SOUTinV^STERN RAILWAY CO. [CIL\P. III. on which they might reasonabl\' have found that the defendants were neghgent in not removing the trimmings as soon as possible, and that this was the cause of the injury. Then comes the question raised by Brett, J., to which at first I was inchned to give some weight. He puts it thus: "I cjuite agree that the defendants ought to have anticipated that sparks might be emitted from their engines, notwithstanding that they were of the best construction, and were Avorked without negUgence, and that they might reasonably have anticipated that the rummage and hedge trimmings allowed to accummulate might be thereby set on fire. But I am of opinion that no reasonable man would have foreseen that the fire would consume the hedge and pass across a stubble-field, and so get to the plaintiff's cottage at the distance of 200 yards from the rail- way, crossing a road in its passage." It is because I thought, and still think, the proposition is true that any reasonable man might well ha\e failed to anticipate such a concurrence of circumstances as is here described that I felt pressed at first by this view of the question; but on consideration I do not feel that that is a true test of the liability of the defendants in this case. It may be that they did not anticipate, and were not bound to anticipate, that the plaintiff's cottage would be burnt as a result of their negligence; but I think the law is, that if they were aware that these heaps were lying by the side of the rails, and that it was a hot s.eason, and that therefore by being left there the heaps were likely to catch fire, the defendants were bound to provide against all circumstances which might result from this, and were responsible for all the natural consequences of it. I think, then, tliere was negligence in the defendants in not removing these trimmings, and that they thus became responsible for all the consequences of their con- duct, and that the mere fact of the distance of this cottage from the point where the fire broke out does not affect their liability, and that the judgment of the Court below must be affirmed. Martin, B. I am of the same opinion. The only question r/e have to decide is, whether there was any e\adence for the jury of negligence on the part of defendants which caused the injury complained of. The facts are, that the plaintiff had a cottage near the railway, and that he was perfectly innocent of any thing that could conduce to his loss, and that he had his house burned down. The question is, did the fire come there from any negligent act of the defendants? I think there is cAadence that it did. There was evidence of the trimmings being improperly left by the defendants by the side of their line, and that a spark from a passing engine fell on them and caused the fire, which was thus due to the defendant's negligence. Bramwell, B., concurred. Channell, B. I am of the same opinion. I quite agree that where there is no direct evidence of negligence, the question what a reason- able man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not, and this is SECT. I.] SMITH V. LONDON & SOUTHWESTERN RAILWAY CO. 97 what is meant by Bramwell, B., in>his jufl^ment in Blyth v. Birming- ham Waterworks Co., 11 Ex. 781; 25 L. J. (Ex.) 212, referred to by Mr. Kingdon; but when it has been once determined that there is evi- dence of neghgence, the person guilty of it is equally liable for its con- sequences, whether he could have foreseen them or not. Blackburx, J. I also agree that what the defendants might reason- ably anticipate is, as my Brother Channel has said, only material with reference to the question whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence. I have still some doubts whether there was any evidence that they were negligent, but as all the other judges are of opinion that there was evidence that they were, I am quite content that the judgment of the Court below should be affirmed. I do not dissent, but I have some doubt, and will state from what my doubt arises. I take it tl^it, since the case of Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679; 29 L. J. (Ex.) 247, which was expressly affirmed in Brand v. Hammersmith Ry. Co., Law Rep. 4 H. L. 171, it is clear that when a railway company is authorized by their Act of Parliament to run engines on their line, and that cannot be done without their emitting sparks, the com- pany are not responsible for injuries arising therefrom, unless there is some evidence of negligence on their part. That being so, I agree that if they have the land at the edge of the line in their own occupa- tion tiiey ought to take all reasonable care that nothing is suffered to remain there which would increase the danger. Then comes the ques- tion, is there evidence enough in this case of a want of that reasonable care? It can hardly be negligent not to provide against that which no one would anticipate. I have no doubt that if the company strewed any thing very inflammable, such as, to put an extreme case, petroleum along the side of their line, they would he guilty of negligence. The reasoning for the plaintiff is that the dry trimmings were of an inflam- mable character and likely to catch fire. My doubt is, whether, since the trimmings were on the verge of the railway on the company's land, if the quickset hedge had been in its ordinary state, they might not have burned only on the company's premises, and done no further harm, and whether the injury, therefore, was not really caused by the hedge being dry, so that it caught fire, and by the fire thus spreading to the stubble-field, and thence to the plaintiff's cottage. I think it is clear that when the company were planning the railway they could not ex- pect that the hedge would become so dr\", and therefore were not neg- ligent in putting a hedge instead ot a stone wall; and though the drought had lasted some weeks, I can hardly think it was negligent in them not to remove the hedge. I do not say that there is not much in what is said with respect to the trimmings being the cause of the injury, and not the state of the hedge, but I doubt on this point, and, therefore doubt if there was evidence of negligence; if the negligence were once established, it would be no answer that it did much more damage than 98 SMITH V. LONDON & .SOUTHWESTERN RAILWAY CO. [cHAP. III. was expected. If a man fires a gun across a road where he may reason- ably anticipate that persons will he passing, and hits some one, he is guilty of negligence, and liable for the injury he has caused; but if he fires in his own wood, where he cannot reasonably anticipate that any .:»ne will be, he is not liable to any one whom he shoots, which shows that what a person may reasonably anticipate is important in consid- ering whether he has been negligent; but if a person fires across a road when it is dangerous to do so and kills a man who is in receipt of a large income, he will be liable for the whole damage, however great, that may have resulted to his family, and cannot set up that he could not have reasonably expected to have injured any one but a labourer. PiGOTT, B. I am of the same opinion. I had some doubts at first, but in the result I am of the same opinion as is expressed by Keat- ing, J., in his judgment in the court below. He says that he was pressed with the consideration that leaving some very inflammable sub- stance along the side of the line where trains were frequently passing was some evidence of negligence. It comes to this, that in a dry summer, with a knowledge of the risk of fire which must be caused, the defendants left heaps of combustible matter along the side of their line; then whether the fire did arise from those heaps was a question for the jury, and it seems clear that it either came from, or was at any rate increased by, the heaps, and so got through the fence to the field, and when once in the field there was no way to stop it till it burned the plaintiff's cottage, and this, as it seems to me, was nothing but what a reasonable man might have anticipated. Lush, J. I am also of opinion that there was evidence from which a jury might properly conclude that the fire originated from the sparks falling from the engine, and that the heaps added to its intensity, and thus caused it to liurn the hedge and stubble; and I confess it seems to me that the more likely the hedge was to take fire, the more in- cumbent it was upon the company to take care that no inflammable material remained near to it.^ • Judgment affirmed. 1 See Louisville N. A. & C. Ry. v. Nitsche, 120 Ind. 229, 2G N. E. 5L— Ed. SECT. I.J SCHEFFER \\ A\ASHIXGTON CITY, ETC., K. K. CO. 99 SCHEFFER v. WASHINGTON CITY, VIRGINIA MIDLAND AND GREAT SOUTHERN RAILROAD CO. Supreme Court of the United States, 188L [Reported 105 U. S. 249.] Miller, J. The plaintiffs, executors of Charles Scheffer, deceased, brought this action to recover of the Washington City, Virginia Midland, and Great Southern Railroad Company damages for his death, which they allege resulted from the negligence of the company while carrying him on its road. The defendant's demurrer to their declaration was sustained, and to reverse the judgment rendered thereon they sued out this writ of error. The statute of Virginia, under which the action was brought, is, as to the question raised on the demurrer, identical with those of all the other States, giving the right of recovery when the death is caused by such default or neglect as would have entitled the J)arty injured to recover damages if death had not ensued. The declaration, after alleging the carelessnes of the officers of the company, by which a collision occurred between the train on which Scheffer was and another train, on the seventh day of December, 1874, proceeds as follows: "Whereby said sleeping-car was rent, broken, torn, and shattered, and by means whereof the said Charles Scheffer was cut, bruisetl, maimed, and disfigured, wounded, lamed, and injured about his head, face, neck, back, and spine, and by reason whereof the said Charles Scheffer became and was sick, sore, lame, and disordered in mind and body, and in his brain and spine, and by means whereof phantasms, illusions, and forebodings of unendurable evils to come upon him, the said Charles Scheffer, were produced and caused upon the brain and mind of him, the said Charles Scheffer, which disease, so produced as aforesaid, baffled all medical skill, and continued constantly to dis- turb, harass, annoy, and prostrate the nervous system of him, the said Charles Scheffer, to wit, from the seventh day of December, A.I). 1874, to the eighth day of August, 1875, when said phantasms, illu- sions, and forebodings, produced as aforesaid, overcame and prostrated all his reasoning powers, and induced him, the said Charles ScheftVr, to take his life in an effort to avoid said phantasms, illusions, and forebodings, which he then and there did, whereby and by means of the careless, unskillful, and negligent acts of the said defendant afore- said, the said Charles Scheffer, to wit, on the eighth day of August, 100 SCHEFFER I'. WASHINGTON CITY, ETC., R. R. CO. [CHAP. III. 1875, lost his life and died, leaving him surviving a wife and children." The Circuit Court sustained the demurrer on the ground that the death of, Scheffer was not due to the negligence of the company in the judicial sense which made it liable under the statute. That the rela- tion of such negligence was too remote as a cause of the death to justify recovery, the proximate cause being the suicide of the decedent — his death by his own immediate act. In this opinion we concur. Two cases are cited by counsel, decided in this court, on the sub- ject of the remote and proximate causes of acts where tlie liability of the party sued depends on whether the act is held to be the one or the other; and, though relied on by plaintiffs we think they both sustain the judgment of the Circuit Court. The first of these is Insurance Company v. Tweed, 7 Wall. 44. In that case a policy of fire insurance contained the usual clause of exception from liability for any loss which might occur " by means of any invasion, insurrection, riot, or civil commotion, or any military or usurped power, explosion, earthquake, or hurricane." An explosion took place in the Marshall warehouse, which threw down the walls of the Alabama warehouse — the one insured, sit- uated across the street from Marshall warehouse — and by this means, and by the sparks from the Eagle Mill, also fired by the explosion facilitated by the* direction of the \\'ind, the Alabama warehouse was burned. This court held that the explosion was the proximate cause of the loss of the Alabama warehouse, l)ecause the fire extended at once from the Marshall warehouse, where the explosion occurred. The court said that no new or intervening cause occurred between the explosion and the burning of the Alabama warehouse. That if a new force or power had intervened, sufl[icient of itself to stand as the cause of the misfortvme, the other must be considered as too remote. This case went to the verge of the sound doctrine in holding the explosion to be the proximate cause of the loss of the Alabama ware- house; but it rested on the ground that no other proximate cause was found. In Milwaukee & St. Paul Railway Co. v. Kellogg (94 U. S. 469), the sparks from a steam ferryboat had, through the negligence of its owner, the defendant, set fire to an elevator. The sparks from the elevator had set fire to the plaintiff's saw mill and lumber yard, which were from three to four hundred feet from the elevator. The court was requested to charge the jury that the injury sustained by the plain- tiff was too remote from the negligence to aft'ord a groimd for a recovery. Instead of this, the court submitted to the jury to find "whether the burning of the mill and lumber was the result naturally and rea- sonably to be expected from the burning of the elevator; whether it was a result which under the circumstances would not naturally follow SECT. I.] SCHEFFER V. AVASHIXGTf)X CITY, ETC., R. R. CO. 101 from the burning of the elevator, and whether it was the result of the continued effect of the sparks from the steamboat, without the aid of other causes not reasonal)ly to be expected." This court affirmed the ruling, and in commenting on the difficulty of ascertaining, in each case, the line between the proximate and the remote causes of a wrong for which a remedy is sought, said : " It is admitted that the rule is difficult. But it is generally held that, in order to warrant a finding that negligence or an act not amounting to wanton WTong is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negli- gence or wTongful act, and that it ought to have been foreseen in the light of the attending circumstances." To the same effect is the lan- guage of the court in McDonald v. Snelling, 14 Allen (Mass.), 290. Bringing the case before us to the test of these principles, it presents no difficulty. The proximate cause of the death of Scheffer was his own act of self-destruction. It was within the rule in both these cases a new cause, and a sufficient cause of death. The argument is not sound which seeks to trace this immediate cause of the death through the pre\'ious stages of mental aberration, physical suffering, and eight months' disease and medical treatment to the original accident on the railroad. Such a course of possible or even logical argument would lead back to that " great first cause least understood," in which the train of all causation ends. The suicide of Scheffer was not a result naturally and reasonably to be expected from the injury received on the train. It was not the natural and probable consequence, and could not have been foreseen in the light of the circumstances attending the negligence of the officers in charge of the train. His insanity, as a cause of his final destruction, was as little the. natural or probable result of the negligence of the railway officials as his suicide, and each of these are casual or unexpected causes, inter- vening between the act which injured him and his death. ^ Judgment affirmed. 1 See BrowTi v. American S. & W. Co., 4.3 Ind. App. .560, 88 N. E. 80; Daniels v. New York, N. H., & H. R. R., 183 Mass. 393, 67 X. E. 424; Malone v. Cayzer, 45 Scot. L. R. 351, Smith Cas. Torts, 46. — Ed. 102 REGINA V. HOLLAND. [CHAP. III. REGINA V. HOLLAND. Liverpool Assizes. 1841. [Reported 2 Mvodij jV Robinson, 351.] Indictment for murder. The prisoner was charged with inflicting divers mortal blows and wounds upon one Thomas Garland, and (among others) a cut upon one of his fingers. It appeared by the evidence that the deceased had been waylaid and assaulted by the prisoner, and that, among other wounds, he was severely cut across one of his fingers by an iron instrument. On being brought to the infirmary, the surgeon urged him to submit to the ampu- tation of the finger, telling him, unless it were amputated, he considered that his life would be in great hazard. The deceased refused to allow the finger to be amputated. It was thereupon dressed by the surgeon, and the deceased attended at the infirmary from daj- to day to have his wounds dressed ; at the end of a fortnight, however, lock-jaw^ came on, induced b}- the wound on the finger ; the finger was then amputated, but too late, and the lock-jaw ultimately caused death. The sui-geon deposed that if the finger had been amputated in the first instance, lie •thought it most probable that the life of the deceased would have been preserved. For the prisoner, it was contended that the cause of death was not the wound inflicted by the prisoner, but the obstinate refusal of the deceased to submit to proper surgical treatment, by which the fatal result would, according to the evidence, have been prevented. Maule. J., however, w-as clearly of opinion that tiiis was no defence, and told the jury that if the prisoner wilfully, and witliout any justifi- able cause, inflicted the wotmd on the party, whicli Avound was ulti- inatelv the cause of death, the prisoner was guiltv of niurder : tliat for this purpose it made no difference whether the wound was in its own nature instantly mortal, or whether it became the cause of death by reason of tiie deceased not having adopted tlie best mode of treatment ; the real question is whether in the end the wound inflicted by the pris- oner was the cause of death. Guilty, i ^ Ace. Com. V. Hackett, 2 All. 136. — Ed. SECT. II.] GUILLE V. SW.^N. 103 SECTION II. Intervening Force caused by First Force. GUILLE V. SWAN. Supreme Court, New York, 1822. [Reported 19 Johns. 381.] In error, on certiorari to the Justices' Court in the City of New York. Swan sued Guille in the Justice's Court, in an action of tres- pass, for entering his close, and treading down his roots and vege- tables, &c., in a garden in the City of New York. The facts were, that Guille ascended in a balloon in the vicinity of Swan's garden, and descended into his garden. \Vlien he descended, his body was hanging out of the car of the balloon in a very perilous situation, and he called to a person at work in Swan's field to help him, in a voice audible to the pursuing crowd. After the balloon descended, it dragged along over potatoes and radishes, about thirty feet, when Guille was taken out. The balloon was carried to a barn at the farther end of the premises. When the balloon descended, more than two hundred per- sons broke into Swan's garden through the fences, and came on his premises, beating down his vegetables and flowers. The damage done by Guille, with his balloon, was about fifteen dollars, but the crowd did much more. The plaintiff's damages, in all, amounted to $90. It was contended before the justice, that Guille was answer- able only for the damage done by himself, and not for the damage done by the crowd. The justice was of the opinion, and so instructed the jury, that the defendant was answerable for all the damages done to the plaintiff. The jury, accordingly, found a verdict for him, for S90, on which the judgment was given, anfl for costs. The cause was submitted to the court on the return, with the briefs of the counsel, stating the points and authorities. Spencer, C. J.^ . . . I will not say that ascending in a balloon is '- Tart of the opinion is omitted. — Ed. 104 ' REX I', DE MARNY. [CHAP. III. an unlawful act, for it is not so; but it is certain that the aeronaut has no control over its motion horizontally; he is at the ,sport of the winds, and is to descend when and how he can; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff below, at a short distance from the place where he ascended. Now, if his descent, imder such circumstances, would, ordinarily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for. Whether the crowd heard him call for help or not, is immaterial; he had put himself in a situa- tion to invite help, and they rushed forward, impelled, perhaps, by the double motive of rendering aid and gratif^dng a curiosity which he had excited. Can it be doubted, that if the plaintiff in error had beckoned to the crowd to come to his assistance, that he would l^e liable for their trespass in entering the inclosure? I think not. In that case, they would have been co-tresspassers, and we must consider the situation in which he placed himself, voluntarily and designedly, as equivalent to a direct request to the crowd to follow him. In the present case, he did call for help, and may have been heard by the crowd; he is, therefore, undoubtedly, liable for all the injury sustained. Judgment affirmed. REX V. DE MARNY. Court for Crowx Cases Reserved. 1906. [Reported 1907, 1 K. B. .388.] Case stated for the opinion of the Court for the Consideration of Crown Cases Reserved by the Common Serjeant. The defendant was tried at the Central Crimhial Court on an indict- ment charging him in several counts with selUng and publishing, and causing and procuring to be sold and published by certain named persons, divers obscene books, papers, and photographs. The indict-, ment also contained a series of counts charging him with sending, and causing and procuring to be sent by certain named persons, certain postal packets containing obscene books, papers, and photographs con- trary to the Post Office (Protection) Act, 1884 (47 & 48 Vict. c. 76), s. 4. It was proved that the defendant was the editor of a newspaper called Judy., and that he inserted and published in that newspaper ad- vertisements of several persons in Enghuid anl abi-oad, oftVring for sale books, catalogues, and photographs. The chief inspector of SECT. II.] ' REX l\ DE MARNY. 105 police wrote to the addresses given in the advertisements and received in return from the persons or firms mentioned in the indictment, wlio were all resident abroad, postal packets containing books, catalogues, and photographs of the most obscene character. The defendant had been warned several times by the police authorities that the books, photographs, and other things advertised in his paper in the same terms and b}' the same persons were of an obscene character, and that one of the persons so advertising in his newspaper had been convicted for selling and publishing obscene libels. Counsel for the defendant submitted that there was no evidence to go to the jury that the defend- ant took part in or aided and abetted the- selling and publishing of obsceue libels as charged in the indictment. The Common Serjeant held that there was evidence, and directed the jur\' that if they were satisfied that the books and photographs sent to the police inspector in pursuance of the advertisements were obscene, and that the defendant knew at the time he published the advertise- ments that they were advertisements for the sale of obscene literature and photographs, and that by the publication of these advertisements he brought about the sale and transmission to the inspector of the books and photographs, they ought to convict the defendant, although he did not know the actual contents of the books or the details of the photographs sent, and that in judging of the defendant's knowledge the3' might consider not only the evidence of the express warnings given to the defendant and the wording of each advertisement, but also the other advertisements appearing in the same issue of the paper. The jury found the defendant guilty on all counts. The question for the opinion of the Court was whether the conviction was right on all or an}' of the counts of the indictment. Avory, K. C'., and J. P. Grain, for the defendant. The conviction cannot stand. If the defendant is guilt}-^ he is guilt\- of aiding and abetting the sale and publication of tiie indecent literature, and, the offence being a misdemeanour, he is liable to be indicted as a principal in the second degree; but the real vendors, who are the principals in the first degree, are all foreigners resident abroad, and they committed no offence against the English law in sending indecent literature to this countr}'. If the act done b}' the principal in the first degree is one for which he could not be convicted, it follows that the principal in the second degree has been guilt}' of no offence. Further, by publish- ing the advertisements the defendant cannot be said to have procured in the legal sense the publication of the books sold, an}' more than a sandwicli-man who advertises the performance of a stage play in a music-hall commits the offence of procuring the illegal representation of a stage play. Reliance is placed by the prosecution on the fact that the defendant knew that the advertisements related to obscene matter, but that knowledge is not evidence that he aided and abetted or pro- cured the sale of the particular things specified -in the indictment. In 106 REX V. DE MARNY. [CHAP. III. Other words, the insertion of the advertisements, though it may have assisted tlie sale in a commercial sense, is legally too remote from the commission of the oft'ence to constitute the editor of the newspaper an aider or abettor in the offence. li. D. M)iir and X. W. Kershmi', for the prosecution. It is a fallacy to say that the principals in the first degree in this case have committed no offence. The person abroad, whether a foreigner or not, who through his innocent agent, the postman, causes the publication of indecent literature in this country commits an offence against the law of England, and, if he came within the jurisdiction, could be con- victed : Rex V. Oliphant, [1905] 2 K. B. 67. The act of sending the books and photographs through the post is one continuous act, one portion of which is performed by the foreigner 'abroad and another b}' the postman in England, but the act of sending continues right up to the moment of delivery. In Rex v. Burdett, (1820) 1 St. Tr. (N. S.) 1, at pp. 114, 115; 4 B. «&; Aid. 95, where a libel was written by the defendant in one county and delivered b}' the postal authorities in another, it was held that there was a publication by the defendant in the latter county ; and at the date of that decision the same question arose as between different counties as now arises between England and a foreign country. Then, is there any evidence that the defendant aided and abetted or procured the sale or publication within s. 8 of the Aiders and Abettors Act. 1861 (24 & 25 Vict. c. 94) ? The foreigner abroad desires to get customers in England. He can do so either by employing an agent or by advertising. In either case the effect is the same. The advertisement in the present case atforded that aid without which the vendor could not have committed the illegal act. The defendant knew that the advertisements related to indecent literature, and that sales would or might result from their insertion in his paper. It is immaterial that he may not have known the exact books or photo- graphs that would be sold : Reg. ik Cooper, (1846) 8 Q. B. 533 ; Parkes v. Prescott, (1869) L. R. 4 Ex. 169. [He was stopped.] Aoory, K. C, replied. LoKD Alverstone, C. J. The very able arguments which have been delivered on both sides enable me to come without any doubt to the conclusion that this conviction must be affirmed. The defendant for profit to himself inserted in his paper advertisements which give infor- mation to readers as to where certain publications can be obtained, and it is found as a fact that the defendant knew that the books and other tiiinofs advertised were of an indecent character, and if one were at liberty to draw a conclusion from the advertisements themselves, there could be no doubt at all as to that. The Common Serjeant directed the jury in the following terras: [His Lordship read the direction of the Common Serjeant set out above, and continued : — ] In my opinion SECT. II.] REX V. DE MARNY. 107 that direction is stated as favourabh* as it could be for the defendant. The jury are told that in order to convict the defendant they must be satisfied that the defendant knew the character of the publications re- ferred to in the advertisements, and that by publishing the advertise- ments he brougiit about the sale of the publications and other articles referred to. That amounts in ordinary- language to aiding or abetting the publication in England of ol)scene literature, and the sending through the post in England a packet the sending of which is pro- hibited by the Post Office (Protection) Act, 1884. It would, in my opinion, be a lamentable state of things if the law of this country were not strong enough to deal with a man who has done so much towards bringing about the publication of indecent literature. The evidence in this case shews that the result of the insertion of the advertisements in the defendant's paper was to give information as to where these things could be obtained to persons who, but for the advertisements, would or might never have known of their existence, and, therefore, it is not going too far to say that the publication was directly brought about bv the act of the defendant, and it is further proved that the defendant had knowledge that that would be the consequence of insert- ing the advertisements in the paper. The argument which has been urged on behalf of the defendant seems to me to go too far, because it would equally apply if the defendant had himself caused the books to be printed abroad. In my opinion the direction of the Common Serjeant was in accordance with the law, and the cases of Rex ?\ Oliphant, supra, Rex v. Burdett, sicpra, and Reg. v. Cooper, supra, are all authorities which afford illustration of the same principle, that in misdemeanours persons who, in the words of the statute, "• aid, abet, counsel or procure " the commission of an offence are themselves prin- cipal offenders. Grantham J. I am of the same opinion. I doubted at first whether the law was strong enough to make the person who received money for publishing these advertisements liable in the same way as a person who himself sells indecent literature, but the authorities which have been cited to us by Mr. Muir satisfj' me tiiat the learned Common Serjeant rightly directed the jur}-. The conviction must therefore be affirmed. Lawrance, Bigham and Bucknill, JJ., concurred. Conviction affirmed. 108 JONES I". BOYCE. [CEL\P. III. JONES V. BOYCE. Assizes, 1816. [Reported 1 Stark. 493.] This was an action on the case against the defendant, a coach pro- prietor, for so negHgently conducting the coach, that the plaintiff, an outside passenger, was obliged to jump off the coach, in consequence of which his leg was broken. It appeared that soon after the coach had set off from an inn, the coupling rein broke, and, one of the leaders being ungovernable, whilst the coach was on a descent, the coachman drew the coach to one side of the road, where it came in contact with some piles, one of which it broke, and afterwards the wheel was stopped by a post. E^•idence was adduced to shew that the coupling rein was defective, and that the breaking of the rein had rendered it necessary for the coachman to drive to the side of the road in order to stop the career of the horses. Some of the witnesses stated that the wheel was forced against the post with great violence; and one of the watnesses stated, that at that time the plaintiff, who had before been seated on the back part of the coach, was jerked forwards in consequence of the concussion, and that one of the wheels was elevated to the height of eighteen or twenty inches; but whether the plaintiff jumped off, or was jerked off, he could not say. A witness also said, I should have jumped down had I been in his (the plaintiff's) place, as the best means of avoiding the danger. The coach was not overturned, but the plaintiff was immediately afterwards seen hnng on the road with his leg broken, the bone haxang been protruded through the boot. Upon this e\adence. Lord Ellenborough was of opinion, that there was a case to go to the jury, and a considerable mass of evidence was then adduced, tending to shew that there was no necessity for the plaintiff to jump off. Lord Ellenborough, in his address to the jury, said: This case presents two questions for your consideration; first, whether the proprietor of the coach was guilty of any default in omitting to pro- vide the safe and proper means of conveyance, and if you should be of that opinion, the second question for your consideration will be, whether that default was conducive to the injury which the plaintiff has sustained; for if it was not so far conducive as to create such a reasonable degree of alarm and apprehension in the mind of the plain- tiff, as rendered it necessary for him to jump down from the coach in order to avoid immediate danger, the action is not maintainable. To enable the plaintiff to sustain the action, it is not necessary that he should have been thrown off the coach ; it is sufficient if he was placed SECT. II.] JONES V. BOYCE. 109 by the misconduct of the defendant in such a situation as obHged him to adopt the alternative of a dangerous leap, or to remain at cer tain peril; if that position was occasioned by the default of the de- fendant, the action may be supported. On the other hand, if the plaintiff's act resulted from a rash apprehension of danger, which did not exist, and the injury which he sustained is to be attributed to rash- ness and imprudence, he is not entitled to re«over. The question is whether he was placed in such a situation as to render what he did a prudent precaution, for the purpose of self-preservation. — His Lord- ship, after recapitulating the facts, and commenting upon them, and particularly on the circumstance of the rein being defective, added : — If the defect in the rein was not the constituent cause of the injury, the plaintiff will not be entitled to your verdict. Therefore it is for your consideration, whether the plaintiff's act was the measure of an unreasonably alarmed mind, or such as a reasonable and prudent mind would have adopted. If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences; if, therefore, you should be of opinion, that the reins were defecti^'e, did this circumstance create a necessity for what he did, and did he use proper caution and prudence in extricating himself from the apparently impending peril. If you are of that opinion, then, since the original fault was in the proprietor, he is liable to the plaintiff for the injury which his misconduct has occasioned. This is the first case of the kind which I recollect to have occurred. A coach proprietor certainly is not to be responsible for the rashness and imprudence of a passenger; it must appear that there existed a reasonable cause for alarm. The jury found a verdict for the plaintiif . — Damages 300/.^ 1 See also Yongue v. St. Louis & S. F. R. R., 133 Mo. App. 141, 112 S. W. 985; St. Joseph & G. I. R. R. V. Hedge, 44 Neb. 448, 62 N. W. 887; Quigley v. Delaware & H. C. Co., 142 Pa. 3aS, 21 Atl. 827.— Ed. 110 ' SCOTT V. SHEPHERD. [cHAP. III. SCOTT V. SHEPHERD. Common Pleas, 1773. [Reported 2 Wm. Bl. 892.] Trespass and assault for throwing, casting, and tossing a lighted squib at and against the plaintiff, and striking him therewith on the face, and so burning one of his eyes, that he lost the sight of it, whereby, &c. On not guilty pleaded, the cause came on to be tried before Nares, J., last summer assizes, at Bridgewater, when the jury found a verdict for the plaintiff with 100/. damages, subject to the opinion of the court on this case : — On the evening of the fair-day at Milborne Port 28th October, 1770, the defendant threw a lighted squib, made of gun powder, &c., from the street into the market-house, which is a covered building, supported by arches, and inclosed at one end, but open at the other and both the sides, where a large concourse of people were assembled ; which lighted squib, so thrown by the defendant, fell upon the standing of one Yates, who sold gingerbread, &c. That one Willis instantly, and to prevent injury to himself and the said wares of the said Yates, took up the said lighted squib from off the said standing, and then threw it across the said market-house, when it fell upon another standing there of one Ryal, who sold the same sort of wares, who instantly, and to save his own goods from being injured, took up the said lighted squib from off the said standing, and then threw it to another part of the said market-house, and, in so throwing it, struck the plaintiff then in the said market-house in the face there- with, and the combustible matter then bursting, put out one of the plaintiff's eyes. Qu. If this action be maintainable? This case was argued last term by Glyn, for the plaintiff, and Burland for the defendant: and this term, the court, being di\'ided in their judgment, delivered their opinions seriatim. Nares, J., was of the opinion, that trespass would well lie in the present case. That the natural and probable consequence of the act done by the defendant was injury to somebody, and therefore the act was illegal at common law. And the throwing of squibs has by statute W. 3, been since made a nuisance. Being therefore un- lawful, the defendant was liable to answer for the consequences, be the injury mrdiafe or ijinnrdiafi'. 21 Hen. 7, 28, is express that malus SECT. II.] SCOTT V. SHEPHERD. Ill animus is not necessary to constitute a trespass. So, too, 1 Stra. 596; Hob. 134; T. Jones, 205; 6 Edw. 4, 7, 8; Fitzh. Trespass, 110. The principle I go upon is what is laid down in Reynolds and Clark, Stra. 634, that if the act in the first instance be unlawful, trespass will lie. Wherever therefore an act is unlawful at first, tres- pass wall lie for the consequences of it. So, in 12 Hen. 4, trespass lay for stopping a sewer with earth, so as to overflow the plaintiff's land. In 26 Hen. 8, 8 for going upon the plaintiff's land to take the boughs off which had fallen thereon in lopping. See also Hardr. 60; Reg. 108, 95; 6 Edw. 4, 7, 8; 1 Ld. Raym. 272; Hob. 180; Cro. Jac. 122, 43; F. X. D. 202, [91, g]. I do not think it necessary, to main- tain trespass, that the defendant should personally touch the plaintiff; if he does it by a mean it is sufficient. — Qui facit per aliud facit jwr se. He is the person, who, in the present case, gave the mischievous faculty to the squib. That mischievous faculty remained in it till the explosion. No new power of doing mischief was communicated to it by Willis or Ryal. It is like the case of a mad ox turned loose in a crowd. The person who turns him loose is answerable in trespass for whatever mischief he may do. The intermediate acts of Willis and Ryal will not purge the original tort in the defendant. But he who does the first WTong is answerable for all the consequential dam- ages. So held in the King and Huggins, 2 Lord Raym. 1574; Parkhurst and Foster, 1 Lord Raym. 480; Rosewell and Prior, 12 Mod. 639. And it was declared by this court, in Slater and Baker, M. 8 Geo. 3, 2 Wils. 359, that they would not look with eagle's eyes to see whether the evidence applies exactly or not to the case: but if the plaintiff has obtained a verdict for such damages as he deserves, they will establish it if possible. Blackstone, J., was of opinion, that an action of trespass did not lie for Scott against Shepherd upon this case. He took the settled dis- tinction to be, that where the injury is immediate, an action of trespass will lie; where it is only consequential, it must be an action on the case: Reynolds and Clarke, Lord Raym. 1401, Stra. 634; Haward and Bankes, Burr. 1114; Harker and Birkl)eck, Burr. 1559. The lawfulness or unlawfulness of the original act is not the criterion; though something of that sort is put into Lord Raymond's mouth in Stra. 635, where it can only mean, that if the act then in question, of erecting a spout, had been in itself unlawful, trespass might have lain; but as it was a lawful act, (upon the defendant's own ground), and the injury to the plaintiff only consequential, it must be an action on the case. But this cannot be the general rule; for it is held l)y the court in the same case, that if I throw a log of timber into the highway, (which is an unlawful act), and another man tumbles over it, and is hurt, an action on the case only lies, it being a consequential damage; but if in throwing it I hit another man, he may bring trespass, because it is an immediate wrong. Trespass may sometimes lie for the consequences 112 SCOTT l\ SHEPHERD. [cHAP. III. of a lawful act. If in lopping my own trees a bough 'accidentally falls on my neighbor's ground, and I go thereon to fetch it, trespass lies. This is the case cited from 6 Edw. 4, 7. But then the entry is of itself an immediate wrong. And case will sometimes lie for the consequence of an unlawful act. If by false imprisonment I have a special damage, as if I forfeit my recognizance thereby, I shall have an action on the case; per Powel, J., 11 Mod. 180. Yet here the original act was un- lawful, and in the nature of trespass. So that laA\'ful or unlawful is quite out of the case; and the solid distinction is between direct or immediate injuries on the one hand, and mediate or consequential on the other. And trespass never lay for the latter. If this be so, the only question will be, whether the injury which the plaintiff suffered was immediate, or consequential only; and I hold it to be the latter. The original act was, as against Yates, a trespass; not as against Ryal, or Scott. The tortious act was complete when the squib lay at rest upon Yates's stall. He, or any bystander, had, I allow, a right to protect themselves by removing the squib, but should have taken care to do it in such a manner as not to endamage others. But Shepherd, I think, is not answerable in an action of trespass and assault for the mischief done by the squib in the new motion im- pressed upon it, and the new direction given it, by either Willis or Ryal; who both were free agents, and acted upon their own judgment. This differs it from the cases put of turning loose a wild beast or a mad- man. They are only instruments in the hand of the first agent. Nor is it like diverting the course of an enraged ox, or of a stone thrown, or an arrow glancing against a tree; because there the original motion, the ri'.s impressa, is continued, though diverted. Here the instrument of mischief was at rest, till a new impetus and a new direction are given it, not once only, but by two successive rational agents. But it is said that the act is not complete, nor the squib at rest, till after it is spent or exploded. It certainly has a power of doing fresh mischief, and so has a stQne that has been thrown against my windows, and now lies still. Yet if any person gives that stone a new motion, and does farther mischief with it, trespass will not lie for that against the original thrower. No doubt but Yates may maintain trespass against Shepherd. And, according to the doctrine contended for, so may Ryal and Scott. Three actions for one single act! nay, it may be extended in infinitum. If a man tosses a football into the street, and, after being kicked about by one hundred people, it at last breaks a tradesman's windows; shall he have trespass against the man who first produced it? Surely only against the man who gave it that michievous direction. But it is said, if Scott has no action against Shepherd, against whom must he seek his remedy? I give no opinion whether case would lie against Shepherd for the consequential damage; though, as at present advised, I think, upon the circumstances, it would. But I think, in strictness of law, trespass would lie against Ryal, the immediate actor in this un- SECT. II.] SCOTT T. SHEPHERD. 113 happy business. Both he and WilHs have exceeded the bounds of self-defense, and not used sufficient circumspection in renio\ang the danger from themselves. The throwing it across the market-house, instead of brushing it down, or throwing [it] out of the open sides into the street, (if it was not meant to continue the sport, as it is called), was at least an unnecessary and incautious act. Not even menaces from others are sufficient to justify a trespass against a third person ; much less a fear of danger to either his goods or his person ; — nothing but ine^'itable necessity; Weaver and Ward, Hob. 134; Dick- enson and Watson, T. Jones, 205; Gilbert and Stone, Al. 35, Styl. 72. So in the case put by Brian, J., and assented to by Littleton and Choke, G. J., and rehed on in Raym. 467,' — "If a man assaults me, so that I cannot a^oid him, and I lift up my staff to defend myself, and, in lifting it up, undesignedly hit another who is behind me, an action lies ]jy that person against me; and yet I did a lawful act in endeavour- ing to defend myself." But none of these great lawyers ever thought that trespass would lie, by the person struck, against him who first assaulted the striker. The cases cited from the Register and Hardres are all of immediate acts, or the direct and inevitable effects of the de- fendants' immediate acts. And I admit that the defendant is answer- able in trespass for all the direct and inevitable effects caused by his own immediate act. — But what is his own immediate act? The throw- ing the squib to Yates's stall. Had Yates's goods been burnt, or his person injured. Shepherd must have been responsible in trespass. But he is not responsible for the acts of other men. The subsequent throw- ing across the market-house by Willis, is neither the act of Shepherd, nor the inevitaVjle effect of it; much less the subsequent throwing by Ryal. Slater and Barker was first a motion for a new trial after verdict. In our case the verdict is .suspended till the determination of the court. And though after verdict the court will not look with eagle's eyes to spy out a variance, yet, when a question is put by the jury upon such a variance, and it is made the very point of the cause, the court will not wink against the light, and say that evidence, which at most is only applicable to an action on the case, will maintain an action of tres- pass. 2. It was an action on the case that was brought, and the court held the special case laid to be fully proved. So that the present ques- tion could not arise upon that action. 3. The same evidence that will maintain trespass, may also frequently maintain case, but not e converso. Every action of trespass with a per quod includes an action on the case. I may bring trespass for the immediate injury, and subjoin a per quod for the consequential damages; — or may bring case for the consequential damages, and pass over the immediate injury, as in the case from 11 Mod. 180, before cited. But if I bring trespass for an imfnediate injury, and prove at most only a consequential damage, judgment must be for the defendant; Gates and Bailey, Tr. 6 Geo. 3, (2 Wils. 313). It is said l)y Lord Raymond, and very justly, in Rey- 114 SCOTT r. SHEPHERD. [chap. III. nolds and Clarke, "We must keep up the boundaries of actions, otherwise we shall introduce the utmost confusion. " As I therefore think no immediate injury passed from the defendant to the plaintiff, (and without such immediate injury no action of trespass can be maintained), I am of opinion, that in this action judgment ought to be for the defendant. Gould, J., was of the same opinion with Nares, J., that this action was well maintainable. — The whole difficulty lies in the form of the action, and not in the substance of the remedy. The line is very nice between case and trespass upon these occasions: I am persuaded there are many instances wherein both or either will lie. I agree \\'ith Brother Nares, that wherever a man does an unlawful act, he is answerable for all the consequences; and trespass will lie against him, if the consequence be in nature of trespass. But, exclusive of this, I think the defendant may be considered in the same ^^ew as if he him- self had personally thrown the squib in the plaintiff's face. The terror impressed upon Willis and Ryal excited self-defense, and deprived them of the power of recollection. What they did was therefore the inevi- table consequence of the defendant's unlawful act. Had the squib been thrown into a coach full of company, the person throwing it out again would not have been answerable for the consequences. What Willis and Ryal cUd, was by necessity, and the defendant imposed that necessity upon them. As to the case of the football, I think that if all the people assembled act in concert, they are all trespassers; 1. from the general mischievous intent; 2. from the ob\dous and natural consequences of such an act: which reasoning will equally apply to the case before us. And that actions of trespass will lie for the mischievous consequences of another's act, whether lawful or vmlawful, appears from their being maintained for acts done in the plaintiff's own land: Hardr. 60; Courtney and Collet, 1 Lord Raym. 272. I shall not go over again the ground which Brother Nares has relied on and explained, but concur in his opinion, that this action is supported by the e\'idence. De Grey, C. J. This case is one of those wherein the line drawn by the law between actions on the case and actions of trespass is very nice and delicate. Trespass is an injury accompanied with' force, for which an action of trespass vi et armis lies against the person from whom it is received. The question here is, whether the injury received by the plaintiff arises from the force of the original act of the defendant, or from a new force by a third person. I agree with my Brother Blackstone as to the principles he has laid down, but not in his application of those principles to the present case. The real question certainly does not turn upon the lawfulness or unlawfulness of the original act; for actions of trespass ^^^ll lie for legal acts when they become trespasses by accident; as in the cases cited of cutting thorns, lopping of a tree, shooting at a mark, defending oneself by a stick which strikes another behind, &c. — Thev mav also not lie for the con- SECT. II. J SCOTT I". SHEPHERD. llo sequences even of illegal acts, as that of casting a log in the highway, &c. — But the true question is, whether the injury is the direct and im- mediate act of the defendant; and I am of opinion, that in this case it is. The throwdng the squib was an act unlawful and tending to affright the bystanders. So far, mischief was originally intended; not any particular mischief, but mischief indiscriminate and wanton. Whatever mischief therefore follows, he is the author of it ; — Egreditur personam, as the phrase is in criminal cases. And though criminal cases are no rule for ci\'il ones, yet in trespass I tlaink there is an analogy. Everyone who does an unlawful act is considered as the doer of all that follows; if done Math a deliberate intent, the consequence may amount to murder; if incautiously, to manslaughter; Fost. 261. So too, in 1 Ventr. 295, a person breaking a horse in Lincoln's Inn Fields hurt a man; held, that trespass lay; and 2 Lev. 172, that it need not be laid scienter. I look upon all that was done subsequent to the original throwing as a continuation of the first force and first act, which will continue till the squib was spent by bursting. And I think that any innocent person remoAang the danger from himself to another is justi- fiable; the blame lights upon the first thrower. The new direction and new force flow out of the first force, and are not a new trespass. The writ in the Register, 95a, for trespass in maliciously cutting dovnv a head of water, which thereupon flowed down to and overwhelmed another's pond, shoM^s that the immediate act need not be instanta- neous, but that a chain of effects together \\\\\ be sufficient. It has been urged, that the intervention of a free agent will make a difference: but I do not consider Willis and Ryal as free agents in the present case, but acting under a compulsive necessit^k^' for their own safety and self- preservation. On these reasons I concur vdih. Brothers Gould and Nares that the present action is maintainable. Postea to the plaintiff. 116 ILLINOIS CENTRAL RAILROAD CO. V. SILER. [CHAP. III. ILLINOIS CENTRAL RAILROAD CO. v. SILER. Supreme Court of Illinois, 1907. [Reported 229 ///. 390.] Dunn, J. delivered the opinion of the court: Appellant presents two propositions only: First, the declaration does not state a cause of action; second, there is no proof that ap- pellant set out the fire or that the deceased used due care. The declaration consisted of five counts, the second and fifth of which were substantially alike, and alleged that defendant negli- gently suffered large quantities of combustible material to accumu- late upon its right of way; that fire from one of defendant's engines ignited said combustible material and thence spread and was commu- nicated to the decedent's premises, and while decedent, with all due care and caution for her own personal safety, was endeavoring to suppress said fire and protect her dwelling house on said premises, whose de- struction was threatened, her clothing was ignited by said fire, in conse- quence whereof she was burned and died. The third and fourth counts allege that fire escaped from one of defendant's locomotives by defendant's mere neglect and set fire to certain combustible material on its right of way and decedent's adjoining close, and while decedent, with all due care for her personal safety, was endeavoring to extinguish the fire and protect her dwelling house, which was threatened with destruction, her clothing was ignited and she was burned, and in consequence thereof died. It is claimed that the second and fifth counts are statutory and therefore bad, because the statute in reference to the accumulation of dangerous combustible material upon the right of way of a railroad company (3 Starr & Cur. Stat. par. 69, p. 3263) refers back to the pre- ceding section for its penalty, and applies only to stock and not to per- sons. But these counts do not refer to the statute and do not depend upon it for their validity. Before the statute, while the presence of dry grass and weeds upon the right of way of a railroad company was not conclusive evidence of negligence, yet the question of negligence was one of fact, to be determined hy the jury from all the circum- stances in the case. Illinois Central Railroad Co. v. Mills, 42 111. 407. It is insisted that all the counts are bad, because they show, specifi- SECT. II.] ILLINOIS CENTRAL RAILROAD CO. V. SILER. 117 ^ cally, that the injury to decedent was not the proximate result of the negligence charged. What is the proximate cause of an injury is ordinarily a question of fact, to be determined by the jury from a consideration of all the at- tending circumstances. (Fent v. Toledo, Peoria and Warsaw Railway Co., 59 111. 349; Pullman Palace Car Co. v. Laack, 143 id. 242; West Chicago Street Railroad Co. v. Feldstein, 169 id. 139.) It can only arise as a question of law or pleading when the facts are not only undisputed, but are also such that there can be no difference, in the judgment of reasonable men, as to the inferences to be drawn from them. The counts all allege, substantially, that the fire was com- municated to the decedent's premises by the negligence of appellant. They all allege, substantially, that while the deceased, with all due care for her safety, was trying to extinguish the fire, her clothing was ig- nited and her burning and death resulted. The question presented, so far as the demurrer is concerned, is whether one who has negligently set fire to another's premises can be held liable for damages caused by burning the owner while engaged in tr^dng, with reasonable prudence and care, to extinguish such fire. Even though one's property has been negligently set on fire by an- other, the owner cannot permit it to be consumed without an effort to save it and then claim reimbursement from the setter out of the fire. He must use every reasonable effort, consistent with his personal safety, to preserve the property. (Toledo, Peoria and Warsaw Rail- way Co. V. Pindar, 53 III. 447; Chicago and Alton Railroad Co. v. Pennell, 94 id. 448.) Where a person sees his property exposed to imminent danger through the negligence of another, he is justified in using every effort to save it wliich a reasonably prudent person would use under similar circumstances, even though the effort exposes him to some danger which he would otherwise have avoided. Due care depends upon the circumstances suiTounding the action. It is to be determined with reference to the situation in which he finds himself at the time. What is due care in one situation might be gross recklessness under different circumstances. Everyone is bound to anticipate the results naturally folloA\ang from his acts. The appellant was there- fore bound to anticipate, when the fire started, that the decedent would try to put it out. . This she was doing, and the allegation is that she was using all due care and caution for her own personal safety. If in so doing the fire which appellant had negligently set out spread to and ignited her clothing wathout any want on her part of the care which an ordinarily prudent person would exercise under the circumstances, the appellant should be held to have anticipated such result as probable and to be liable therefor. In order to make a negligent act the proximate cause of an injury it is not necessary that the particular injury, and the particular manner of its occurrence, could reasonably have been foreseen. (City of Dixon 118 ILLINOIS CENTRAL KAILROAD CO. i'. SILER. [ciIAP. III. V. Scott, 181 TU. 116.) If the consequences follow in unbroken sequence from the wrong to the injury without an intervening efficient cause, it is sufficient if, at the time of the negHgence, the wrongdoer might, by the exercise of ordinary care, ha\-e foreseen that some injury might result from his neghgence. Chicago and Alton Railroad Co. i'. Pennell, supra; Pullman Palace Car Co. r. Laack, supra; Chicago Hair and Jh-istle Co. /•. Nueller, 203 111. 558. The rule as to what constitutes proximate cause was considered in the case of Atchison, Topeka and Santa Fe Railroad Co. v. Stan- ford, 12 Kan. 354, and it was said: "Any number of causes and effects may intervene between the first wrongfid cause and the final injurious consequence, and, if they are such as might with reasonable diligence have been foreseen, the last result, as well as the first and every in- termediate result, is to be considered, in law, as the proximate result of the first wrong cause. But whenever a new cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the WTongdoer and except for which the final injurious consequences could not have happened, then such injurious consequences must be deemed too remote to constitute the basis of the cause of action." In Milwaukee and St. Paul Railway Co. v. Kellogg, 94 U. S. 469, it is said: "The question always is, was there an unbroken connection between the wrongful act and the injury, — • a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and in- dependent cause intervening between the wrong and the injury? . . . The inquiry must, therefore, always be whether there was any inter- mediate cause, disconnected from the primary fault and self -operating, which produced the injury." It is true that in this case the voluntary act of the decedent inter- vened between the negligent act of tlie appellant in setting out the fire and the injury occasioned by the burning of decedent. But this act was one of the intervening causes which the appellant with rea- sonable diligence might ha\'e foreseen. It was a consequence of the wrongful act of appellant which it ought to have anticipated. It was not a new and indep>endent cause intervening between the wrong and the injury or disconnected from the primary cause and self-operating, but was itself the natural result of appellant's original negligence. The case of Scale r. Railway Co., 65 Texas, 274, has been cited by appellant and fully sustains its position. That case holds, that, whether the deceased was negligent or not in her attempt to put out the fire, it was this attempt, and not the original negligence of the defendant in starting the flame, that was the proximate cause of her death. This case was followed by the Missouri Court of Appeals in Logan v. Wabash Railroad Co., 70 S. W. Rep. 734. In the case of Chattanooga Light SECT. II.] ILLIXOIS CEXTRAL RAILRO.U) CO. V. SILER. 119 and Power Co. v. Hodges, 109 Tenn. 331, the injury resulted from "an act committed by the injured party so obviously fraught with peril as should })e sufficient to deter one of reasonable intelligence." The court, wliile reversing the judgment against the defendant, said: "The rule has been extended so as to give the injured party redress where his effort to save property has been such as a reasonably pru- dent man would have made under similar circumstances." The cases which sustain the position of the appellant we think are wrong in principle and opposed to the weight of authority. One whose property is exposed to danger by another's negligence is bound to make such effort as an ordinarily prudent person would to save it or prevent damages to it. If in so doing, and while exercising such care for his safety as is reasonable and prudent under the circumstances, he is injured as a result of the negligence against the effect of which he is seeking to protect his property, the wTongdoer whose negligence is the occasion of the injury must respond for the damages. It is not just that the loss should fall on the innocent \'ictim. We regard this as the result of the authorities which we have been able to examine, aside from the two above mentioned as sustaining the position of ap- pellant. Berg V. Great Northern Railway Co., 70 Minn. 272; Liming V. Illinois Central Railroad Co., 81 Iowa, 246; Glanz v. Chicago, Mil- waukee and St. Paul Railway Co., 119 id. 611; Wasmer v. Delaware, Lackawanna and Western Railroad Co., 80 N. Y. 212; Page v. Bucks- port, 64 Me. 51. The declaration was sufficient to support the judgment. There was evidence tending to show that appellant had allowed dry grass and weeds to accumulate upon its right of way; that the fire started in such grass and weeds and spread to the deceased's premises immediately after the passage of a gravel train of appellant; that the deceased commenced to rake the grass and leaves on her lot and near her house, and while doing so her clothes caught fire; that the fire was started by the negligence of appellant, and that the deceased exercised ordinary care, under circumstances, for her own safety. In this condition of the record the judgment of the Appellate Court is final as to the facts. Appellant insists that if the deceased was not guilty of contribu- tory negligence she was injured as the result of a pure accident. But the law is well settled in this State that a defendant is liable for an injury caused to one using due care for his personal safety by the defendant's negligence concurring with an accident without which the injury would not have occurred. City of Rock Falls v. Wells, 169 111. 224; City of Joliet v. Schufeldt, 144 id. 403; Village of Carterville ». Cook, 129 id. 152; Armour v. Golkowska, 202 id. 144. We find no en-or in the record, and the judgment will be affirmed. Judgment affirmed.^ » See also Glanz v. Chicago M. & S. P. Ry., 1 19 la. 61 1, 93 X. W. .575. — Ed. 120 EHRGOTT V. MAYOR OF NEW YORK. [CHAP. III. EHRGOTT V. MAYOR OF NEW YORK. Court of Appeals of New York, 1884. [Reported 96 A". Y. 264.] Earl, J. This action was commenced to recover damages sus- tained by the plaintiff from personal injuries received by him in con- sequence of a defect in a street in the City of New York.^ . . . The accident occurred in the night time, while it was raining. When the plaintiff drove into the ditch in the street his horses jumped, the axle of his carriage was broken, and he was dragged partly over the dash- board. With the assistance of men who came to his help, his horses were taken from the carriage, and he procured another carriage and harnessed his horses to that, and drove several miles to liis home with his \\ife, sister, and son. To report the accident to the police station nearby, to change carriages and drive to his home, took several hours, and during that time he was exposed to the cold and rain, and his clothes became perfectly saturated with water. He was not that night aware that he had sustained any injury, and the next morning first became sensible of the pain in his back. Upon the trial the plain- tiff gave exadence tending to show that the diseases from which he was suffering were results of the strain and shock, caused by his being dragged over the dashboard; and the defendant gave e\adence tending to show that the diseases were the result of the subsequent exposure to the cold and rain. The judge, in his charge to the jury, left it to them to determine whether the injuries of wliich plaintiff complained were the proximate, direct result of the accident, and up)on plaintiff's request he charged "that whether his personal injuries resulted from the strain experienced by him in being pulled over the dashboard, or from the exposure after the accident, the defendant is still responsible for the injuries from which the plaintiff is now suffering, pro\dded that the jury shall find that the plaintiff was wdthout negligence, and con- ducted himself with ordinary and reasonable care." To this charge defendant's counsel excepted. The judge also charged, at the request of the defenflant, that "the inquiry is whether the plaintiff's conduct has augmented the mischief; if so, as the law is inadequate to appor- tion the wTong, there can be no recovery;" that "no punitive damages can be recovered against the city in this action ; if the plaintiff is entitled to recover at all, the jury can only award compensation for such actual pecuniary loss, and pain, and suffering as were occasioned by the accident;" that "the plaintiff' was bound to use ordinary prudence to avoid ill effects from the accident as well before as after the accident, ^ Part of the opinion is omitted. — Ed. SECT. II.] EHRGOTT V. MAYOR OF NEW YORK. 121 and if the exposure to the rain and wet after the breakdown occasioned the present injuries to the spine, and such exposure was not the con- duct and action of a prudent man, especially in view of his ill-health, arising from his throat, then the defendant would not be responsible for it;" that "the defendant is only liable for such damages as are the natural and necessary result of the accident in question;" and he refused to charge as a part of this request, " and for such damages as might reasonably be supposed to have been in the contemplation of plaintiff and defendant, as the probable result of the accident," and to this refusal defendant's counsel excepted. He also charged the following request of the defendant : " If you find that the defendant is not respon- sible for the plaintiff's present sufferings, within the rules which I have just laid down, and yet find that the accident was the result of the defendant's negligence, the plaintiff" would be entitled to recover for such pain and suffering as the exddence shows to be the natural and necessary result of the accident;" and he refused to charge the follow- ing requests of the defendant: "Or if you believe that such spinal sufferings, from which the plaintiff suffers, arose from the plaintiff's standing out in the cold and rain for an hour, or an hour and a half, after the breakdown, during which time the plaintiff says he got wet to the skin, or arose from his catching cold by riding home in his wet clothes, and if you believe that it was not occasioned directly by the rut in the road, but that it was the result of the plaintiff's own volun- tary exposure, then I charge you that the city would not be liable therefor; " that " if the plaintiff's personal sufferings were occasioned by his getting wet to the skin, from standing outdoors, and then dri\ang home in his wet clothes, on the night in question, then I charge you that the defendant would not be liable for them." To these refusals defendant's counsel excepted. The defendant also requested the judge to charge "that the spinal injuries from which the plaintiff now suffers, if they were occasioned by the exposure to the wet, following the accident, as the defendant contends they were, are not the natural and necessary result of the accident, and are not such as might reasonably be supposed to have been in the contemplation of the parties as the probable outgrowth of the accident, and, therefore, in the contemplation of the law, the defend- ant is not liable therefor." The judge declined to charge this, except as he had already charged, and the defendant's counsel excepted. The judge submitted ^Titten questions to the jury, which they answered as follows: First. "Are the spinal difficulties, from which the plaintiff' is now suffering, the direct result of the accident — that is, the breaking of the axle, and his falling over the dashboard — or are they the result of his subsequent exposure to the wet or cold, or both?" Answer: "Of both." Second. "Was it a reasonably prudent action for the plaintiff to remain in the street, exposed to the rain and cold during the time that his journey was interrupted on the night 122 EHRGOTT V. MAYOR OF NEW YORK. [CHAP. III. of the accident?" Answer: "Yes." Third. "Was it a reasonably- prudent action for him to resume his journey, and drive home in his wet clothing, when, as he says he was, drenched to the skin?" Ans. "Yes." Fourth. "Did the plaintiff's exposure tend to increase or consummate whatever injury lie received by^ the breaking of the axle and in falling over the dashboard?" Ans. "Yes." It is sometimes said that a party charged with a tort, or with breach of contract, is liable for such damages as may reasonably be supposed to have been in the contemplation of both parties at the time, or with such damage as may reasonably be expected to result, under ordinary circumstances, from the misconduct, or with such damages as ought to have been foreseen or expected in the light of the attending circum- stances, or in the ordinary course of things. These various modes of stating the rule are all apt to be misleading, and in most cases are absolutely worthless as guides to the jury. (Leonard v. N. Y., etc., Tel. Co., 41 N. Y. 544.) Parties when they make contracts, usually contemplate their performance and not their breach, and the conse- quences of a breach are not usually in their minds, and it is useless to adopt a fiction in any case that they were. When a party commits a tort resulting in a personal injury, he cannot foresee or contemplate consequences of his tortious act. He may knock a man down, and his stroke may, months after, end in paralysis or in death — results which no one anticipated or could have foreseen. A city may leave a street out of repair, and no one can anticipate the possible accidents which may happen, or the injuries which may be caused. Here nothing short of Omniscience could have foreseen for a minute what the result and effect of driving into this ditch would be. Even for weeks and months after the accident the most expert physicians could not tell the ex- tent of the injuries. The true rule, broadly stated, is that a wrongdoer is liable for the damages which he causes by his misconduct. But this rule must be practicable and reasonable, and hence it has its limitations. A rule to be of practicable value in the administration of the law, must be reasonably certain. It is impossible to trace any wrong to all its con- sequences. They may be connected together and involved in an infinite concatenation of circumstances. As said by Lord Bacon, in one of his maxims (Bac. Max. Reg. 1): "It were infinite for the law to judge the cause of causes, and their impidsion one of another; therefore it contenteth itself with tht> immediate cause, and judgeth of acts by that, without looking to any further degree." The best statement of the rule is that a wrongdoer is responsible for the natural and proximate consequences of his misconduct ; and what are such con- sequences must generally be left for the determination of the jury. (Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469.) We are, there- fore, of opinion that the judge did not err in refusing to charge the jury that the defendant was liable "only for such damages as might SECT. II.] EHRGOTT V. MAYOR OF KEW YORK. 123 reasonably be supposed to have been in the contemplation of the plaintiff and defendant as the probable result of the accident." The judge charged the jury that the defendant was liable to the plaintiff, even if the disease from which he suffered were solely due to his exposure to the cold and rain after the accident, provided he was free from fault and negligence in the exposure. I am inclined to think that there was no error in this portion of the charge. The exposure was the direct and proximate result of the accident. The plaintiff and his family were unavoidably forced from his carriage into the rain and cold by the accident, and were thus exposed to those elements in con- sequence of defendant's wrong. It was in the night time, and they could not remain in the carriage, and he could not avoid the rain. He was bound to exercise reasonable prudence in taking care of him- self and avoiding the consequences of the wrong done. He had the option to stand in the street where the accident had placed him, or to go home, exercising reasonable prudence and the best judgment he had. There is thus such a direct connection between the accident and the exposure as to make the defendant liable for the latter. It must, however, be admitted that there is considerable authority in opposition to these views. (Hobbs v. L. & S. W. R. Co., L. R. 10 Q. B. Ill; McMahon v. Field, 44 L. T. [N. S.] Ch. Div. 175; Waller v. M. G. W. Railway Co., 12 Ir. L. T. 145; Pullman Palace Car Co. v., Barker, 4 Col. 344; Indianapolis, etc., R. Co. v. Birney, 71 111. 391; Francis v. St. L. Transfer Co., 5 Mo. App. 7.) But the views expressed are not con- demned by any authority in this State, and are fairly sustained by the cases of Williams v. Vanderbilt (28 N. Y. 217) and Ward v. Vander- bilt (4 Abb. Ct. of App. Dec. 521). But even if the portion of the charge just referred to was erroneous, it was entirely harmless, as the jury found that the diseases from which the plaintiff suffered were the direct result both of the accident (the breaking of the axle and his falling over the dashboard) and the subsequent exposure, and that the effect of the exposure was simply to increase and aggravate the injury received from the accident. The jury found that the plaintiff was blameless for the subsequent exposure, and, therefore, so far as that operated in causing injury to the plaintiff, it was a cause for which he was not responsible. There were, according to the finding of the jury, two causes operating to produce plaintiff's injuries, each of which was essential to produce the results. The accident without the exposure, and the exposure without the accident, would not have caused them. This case then comes within the principle decided in Ring v. City of Cohoes (77 N. Y. 83), where it was said: "When two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate — one being a culpal)le defect in the highway, and the other some occurrence for which neither party is responsible — the municipality is liable, provided the injury would not have been sus- 124 EHRGOTT V. MAYOR OF NEW YORK. [CIL\P. III. tained but for such defect ; " and " when several proximate causes con- tribute to an accident, and each is an efficient cause, mthout the oper- ation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause unless, without its operation, the accident would not have happened." Here, as I understand the findings of the jury, the plain- tiff's injuries would not have been suffered but for the strain and shock of the accident. Wliile both causes were proximate, that was the near- est and most direct. Still further. It was certainly impossible for the plaintiff to prove, or for the jury to find, how much of the injury was due to either cause alone. It was wholly impossible to apportion the dam- age between the two causes. Shall this difficulty deprive the plaintiff of all remedy? We answer no. The wrong of the defendant placed the plaintiff in tliis dilemma, and it cannot complain if it is held for the entire damage. We have thus examined with the care which the importance of this case seems to demand the principal questions involved upon this appeal. There are some other exceptions noticed in the brief of the learned counsel for the city, but they are not of sufficient importance to require discussion here. They do not seem to be much relied on and clearly point to no error. The order of the General Term, reversing the judgment and grant- ing a new trial, should be reversed, and the judgment entered upon the verdict should be affirmed, with costs of the appeal to the General Term and to this court. All concur. Order reversed and judgment affirmed.^ * See also Crowley v. West End, 149 Ala. 349, 43 So. 359.— Ed. SECT. II. 1 CLu\RK V. CHAMBERS. 125 CLARK V. CHAMBERS. High Court of Justice, Queen's Bench Division, 1878. [Reported 3 Q. B. D. 327.] CocKBURN, C. J. This is a case of considerable nicety, and which, so far as the precise facts are concerned, presents itself for the first time. The defendant is in the occupation of premises which abut on a private road leading to certain other premises as well as to his; it consists of a carriage road and a footway. The soil of both is the property of a different owner; the defendant has no interest in it beyond the right of way to and from his premises. The defendant uses his premises as a place where athletic sports are carried on by persons resorting thereto for that purpose for their own amusement. His customers finding themselves annoyed by persons coming along the road in question in carts and vehicles and stationing themselves opposite to his grounds and overlooking the sports, the height of the carts and vehicles enabling them to see over the fence, the defendant erected a barrier across the road for the purpose of preventing vehicles from getting as far as liis grounds. This barrier consisted of a hurdle set up lengthways next to the foot- path, then two wooden barriers armed with spikes, commonly called chevaux de frise, then there was left an open space through which a vehicle could pass; then came another large hurdle set up lengthways, which blocked up the rest of the road. At ordinary times the space between the two dixdsions of the barrier was left open for vehicles to pass which might be going to any of the other premises to which the road in question led. But at the times when the sports were going on, a pole attached by suitable apparatus was carried across from the one part of the barrier to the other, and so the road was effectually blocked. Amongst the houses and grounds to which this private road led was that ojf a Mr. Bruen. On the evening on which the accident which gave rise to the present action occurred the plaintiff, who occupied premises in the immediate neighbourhood, accompanied Mr. Bruen, by the in- vitation of the latter, to Bruen's house. It was extremely dark, but being aware of the barrier and the opening in it, they found the opening, the pole not being set across it, and passed through it in safety ; but on his return, later in the evening, the plaintiff was not equally fortunate. It appears that, in the course of that day or the day previous, some one had removed one of the chevaux de frise hurdles from the place where it had stood, and had placed it in an upright position across the footpath. Coming back along the middle of the road, the plaintiff. 126 CLARK I'. CH.^IBERS. [ciIAP. III. feeling his way, passed safely through the openino; in the centre of the barrier; having done which, being wholly unaware, it being much too dark to see, that there was any obstruction on the footpath, he turned on to the latter, intending to walk along it the rest of the way. He had advanced only two or three steps when his eye came into collision with one of the spikes, the effect of which was that the eye was forced out of its socket. It did not appear by whom the chevaux de frise hurdle had been thus removed, but it was e^qjressly found by the jury that this was not done by the defendant or by his authority. The question is, whether the defendant can be held liable for the injury thus occa- sioned. It is admitted that what the defendant did in erecting this bar- rier across the road was unauthorized and wrongful, and it is not dis- puted that the plaintiff was lawfully using the road. There is no ground for imputing to him any negligence contributing to the accident. The jury have expressly found, in answer to a question put to them by me, that the use of the chevaux de frise in the road was dangerous to the safety of persons using it. The ground of defense in point of law taken at the trial and on the argimient on the rule was, that, although if the injury had resulted from the use of the chevaux de frise hurdle as placed by the defendant on the road, the defendant, on the facts as admitted or as found by the jury, might have been liable; yet, as the immediate cause of the accident was not the act of the defend- ant, but that of the person, whoe^'er he may have been, who re- moved the spiked hurdle from where the defendant had fixed it and placed it across the footway, the defendant could not be held liable for an injury resulting from the act of another. On the part of the plaintiff it was contended that as the act of the defendant in placing a dangerous instrument»on the road had been the primary cause of the e\'il, by affording the occasion for its being removed and placed on the foot- path, and so causing the injury to the plaintiff, he was responsible in law for the consequences. Numerous authorities were cited in sup- port of this position. The first is the case of Scott v. Shepherd, 3 Wils. 403; 2 W. Bl. 892. In that case the defendant threw a lighted squib into a market house where several persons were assembled. It fell upon a standing, the owner of which, in self-defence, took it up and threw it across the market house. It fell upon another standing, the owner of which, in self-defence, took it up and threw it to another part of the market house, and in its course it struck the plaintiff, and exploded and put out his eye. The defendant was held liable, although without the intervention of a third person the squib would not have in jured the plaintiff. In Dixon v. Bell, 5 M. & S. 198, the defendant, ha\nng left a loaded gun with another man, sent a young girl to fetch it, with a message to the man in whose custody it was to remove the priming, which the latter, as he thought, did, but, as it turned out, did not do effectually. The girl brought it home, and, thinking that the priming ha\^ng been SECT. II.] CLARK V. CILAJUBERS. 127' removed the gun could not go off, pointed it at the plaintiff's son, a child, and pulled the trigger. The gun went off and injured the child. The defendant was held liable, "as by this want of care," says Lord Ellenborough — that is, by leaving the gun without drawing the charge or seeing that the priming had been properly removed — " the instru- ment was left in a state capable of doing mischief, the law will hold the defendant responsible. It is a hard case, undoubtedly; but I think the action is maintainable." In Ilott V. \Yilkes, 3 B. & A. 304 — the well-known case as to spring- guns — it became unnecessary to determine how far a person setting spring-guns would be liable to a person injured by such a gun going off, even though such person were a trespasser, inasmuch as the plaintiff, ha\ang had notice that spring-guns were set in a particular wood, had voluntarily exposed himself to the danger. But both Mr. Justice Bayley and Mr. Justice Holroyd appear to have thought that with- out such notice the action would have lain, the use of such instruments being unreasonably disproportioned to the end to be obtained, and dangerous to the lives of persons who might be innocently trespassing. Looking to their language, it can scarcely be doubted that if, instead of injuring the plaintiff, the gun which he caused to go off had struck a person passing lawfully along a path leading through the wood, they would have held the defendant liable. In Jordin v. Crump, 8 M. & W. 782, the use of dog-spears was held not illegal; but there the injury done to the plaintiff's dog was alone in question. If the use of such an instrument had been pro- ductive of injury to a human being, the result might have been dif- ferent. In Illidge v. Goodwin, 5 C. & P. 192, the defendant's cart and horse were left standing in the street without any one to attend to them. A person passing by whipped the horse, which caused it to back the cart against the plaintiff's window. It was urged that the man who whipped the horse, and not the defendant, was liable. It was also contended that the bad management of the plaintiff's shopman had contributed to the accident. But Tindal, C. J., ruled that, even if this were believed, it would not avail as a defence. " If," he says, "a man chooses to leave a cart standing on the street, he must take the risk of any mischief that may be done." Lynch v. Nurdin, 1 Q. B. 29, is a still more striking case. There, as in the former case, the defendant's cart and horse had been left standing imattended in the street. The plaintiff, a child of seven years of age, playing in the street with other boys, was getting into the cart when another boy made the horse move on. The plaintiff was thrown down, and the wheel of the cart went over his leg and fractured it. A considered judgment was delivered by Lord Denman. He says, " It is urged that the mischief was not produced by the mere negligence of the servant as asserted in the declaration, but at most by that negligence in combination with two other active causes, the 128 CLARK V. CHAMBERS. [CHAP. III. advance of the horse in consequence of his being excited by the other boy, and the plaintiff's improper conduct in mounting the cart and committing a trespass on the defendant's chattel. On the former of these two causes no great stress was laid, and I do not apprehend that it can be necessary to dwell on it at any length. For if I am guilty of negligence in leaving anything dangerous where I know it to be ex- tremely probable that some other person will imjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first." And then, by way of illustration, the Chief Justice puts the case of a game- keeper leaving a loaded gun against the wall of a play-ground where school boys were at play, and one of the boys in play letting it off and wounding another. " I think it will not be doubted," says Lord Denman, "that the gamekeeper must answer in damages to the wounded party." " This," he adds, " might possiVjly be assumed as clear in principle, but there is also the authority of the present Chief Justice of the Common Pleas in its support in lUidge «'. Goodwin." It is unnecessary to follow the judgment in the consideration of the second part of the case, namely, whether the plaintiff, ha\ing con- tributed to the accident by getting into the cart, was prevented from recovering in the action, as no such question arises here. In Daniels i\ Potter, 4 C. & P. 262, the defendants had a cellar opening to the street. The flap of the cellar had been set back while the defendants' men were lowering casks into it, as the plaintiff contended, without proper care ha\ang been taken to secure it; the flap fell and injured the plaintiff. The defendant maintained that the flap had been properly fastened, but also set up as a defence that its fall had been caused by some children pla^^ing with it. But the only question left to the jury by Tindal, C. J., was whether the defendant's men had used reasonable care to secure the flap. His direction implies that in that case only would the intervention of a third party causing the injury be a defence. The cases of Hughes r. Macfie, 2 H. & C. 744; 33 L. J. (Ex.) 177, and Abbott v. Macfie, 2 H. & C. 744; 33 L. J. (Ex.) 177, two actions arising out of the same circumstances, and tried in the Passage Court at Liverpool, though at variance with some of the foregoing, so far as relates to the effect on the plaintiff's right to recover where his own act as a trespasser has contributed to the injury of which he complains, is in accordance with them as respects the defendant's liability for his own act, where that act is the primary cause, though the act of another may have led to the immediate result. The defendants had a cellar opening to the street. Their men had taken up the flap of the cellar for the purpose of lowering casks into it, and, having reared it against the wall nearly upright with its lower face, on which there were cross-bars, towards the street, had gone away. The plaintiff in one of the actions, a child five years old, got upon the SECT. II.] CLARK V. CHAMBERS. 129 cross-bars of the flap, and in jumping off them brought down the flap on himself and another child, the plaintiff in the other action, and both were injured. It was held, that while the plaintiff whose act had caused the flap to fall could not recover, the other plaintiff who had been injured could, provided he had not been playing with the other so as to be a joint actor with him. Bird V. Holbrook, 4 Bing. 628, is another striking case, as there the plaintiff was undoubtedly a trespasser. The defendant being the owner of a garden, which was at some distance from his dwelling-house, and which was subject to depredations, had set in it without notice a spring- gun for the protection of his property. The plaintiff, who was not aware that a spring-gun was set in the garden in order to catch a pea- fowl, the property of a neighbour, which had escaped into the garden, got over the wall, and his foot coming, in his pursuit of the bird, into contact with the wire which communicated with the gun, the latter went off and injured him. It was held, though his own act had been the immediate cause of the gun going off, yet that the unlawful act of the defendant in setting it rendered the latter liable for the consequences. In the course of the discussion a similar case of Jay v. Whitfield, 3 B. & Ad. 308, at p. 644, was mentioned — tried before Richards, C. B., — in which a plaintiff who had trespassed upon premises in order to cut a stick and had been similarly injured, had recovered substantial damages, and no attempt had been made to disturb the verdict. In Hill V. New River Company, 9 B. & S. 308, the defendants created a nuisance in a public highway by allowing a stream of water to spout up open and unfenced in the road. The plaintiff's horses passing along the road with his carriage took fright at the water thus spouting up, and swerved to the other side of the road. It so happened that there was in the road an open ditch or cutting, which had been made by contractors who were constructing a sewer, and which had been left unfenced and unguarded, which it ought not to have been. Into this ditch or cutting, owing to its being unfenced, the horses fell and injured themselves and the carriage. It was contended that the remedy, if any, was against the contractors; but it was held that the plaintiff was entitled to recover against the company. In Burrows v. March Gas and Coke Company, Law Rep. 7 Ex. 96, it was held in the Exchequer Chamber, affirming a judgment of the Court of Exchequer, that where, through a breach of contract by the defendants in not serving the plaintiff with a proper pipe to convey gas from their main into his premises, an escape of gas had taken place, whereupon the servant of a gasfitter at work on the premises ha\-ing gone into the part of the premises where the escape had occurred, with a lighted candle, and examining the pipe with the candle in his hand, an explosion took place, by which the premises were injured, the defendants were liable, though the explosion had been immediately loO ' CLARK l\ CHAMBERS. [cHAP. III. caused by the imprudence of the gasfitter's man in examining the pipe with a Hghted candle in his hand. In Colhns v. Middle Level Commissioners, Law Rep. 4 C. P. 279, the defendants were boimd under an Act of Parliament to construct a cut with proper walls, gates, and sluices, to keep out the waters of a tidal river, and also a culvert under the cut, to carry off the drainage of the lands l^ang east of the cut, and to keep the same open at all times. In consequence of the defective construction of the gates and sluices, the waters of the ri\'er flowed into the cut, and, bursting its western bank, flooded the adjoining lands. The plaintiff and other proprietors on the eastern side closed the culvert, and so protected their lands; but the proprietors on the western side, to lessen the evil to themselves, reopened the culvert, and so increased the overflow on the plaintiff's land, and caused injury to it. The defendants sought to ascribe the injury to the act of the western proprietors in remo\'ing the obstruction which those on the other side had placed at the culvert. But it was held that the negligence of the defendants was the substantial cause of the mischief. "The defendants," says Mr. Justice Montague Smith, " cannot excuse themselves from the natural consequences of their neg- ligence by reason of the act, whether rightful or wrongful, of those who removed the obstruction placed in the culvert under the circum- stances found in this case." "The primary and substantial cause of the injury," says Mr. Justice Brett, "was the negligence of the defend- ants, and it is not competent to them to say that they are absolved from the consequences of their wrongful act by what the plaintiff or some one else did." — "I cannot see how the defendants can excuse themselves by urging that the plaintiff was prevented by other wrong- doers from preventing a part of the injury." The case of Harrison v. Great Northern Railway, 3 H. & C. 231; 33 L. J. (Ex.) 266, belongs to the same class. The defendants were bound under an Act of Parliament to maintain a delph or drain with banks for carr;^ang oft' water for the protection of the adjoining lands. At the same time certain commissioners, appointed under an Act of Parliament, were bound to maintain the naxngation of the river Witham, with which the delph communicated. There ha\-ing been an extraordinary fall of rain, the water in the delph rose nearly to the height of its banks, when one of them gave way and caused the damage of which the plaintiff com- plained. It was found that the bank of the delph was not in a proper condition, but it was also found, and it was on this that the defendants relied as a defence, that the breaking of the bank had been caused by the water in it ha\nng been penned back, owing to the neglect of the commissioners to maintain in a proper state certain works which it was their duty to keep up under their Act. Nevertheless, the defend- ants were held liable. These authorities would appear to be sufficient to maintain the plaintiff's right of action under the circumstances of this case. It SECT. II.] CLARK V. CHAMBERS. 131 must, however, be admitted that in one or two recent cases the Courts have shewn a disposition to confine the Habihty arising from unlawful acts, negligence, or omissions of duty within narrower limits, by hold- ing a defendant liable for those consequences only which in the ordinary course of things were likely to arise, and which might therefore reasonably be expected to arise, or which it was contemplated by the parties might arise, from such acts, negligence, or omissions. In Greenland i). Chaphn, 5 Ex. 243, at p. 248, Pollock, C. B., says: "I entertain considerable doubt whether a person who is guilty of negli- gence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no pos- sibility have been foreseen, and which no reasonable person would have anticipated." Acting on this principle, the Court of Common Pleas, in a recent case of Sharp v. Powell, Law Rep. 7 C. P. 253, held that the action would not lie where the injury, though arising from the unlawful act of the defendant, could not have been reasonably expected to follow from it. The defendant had, contrary to the provisions of the Police Act, washed a van in the street, and suffered the water used for the purpose to flow down a gutter towards a sewer at some little dis- tance. The weather being frosty, a grating, through which water flow- ing down the gutter passed into the sewer, had become frozen over, in consequence of which the water sent down by the defendant, instead of passing into the sewer, spread over the street and became frozen, rendering the street slippery. The plaintiff's horse coming along fell in consequence, and was injured. It was held that as there was notliing to show that the defendant was aware of the obstruction of the grating, and as the stoppage of the water was not the necessary or probable consequence of the defendant's act, he was not responsible for what had happened. Bovill, C. J., there says: "Xo doubt, one who commits a wrong- ful act is responsible for the ordinary consequences which are likely to result therefrom, but, generally speaking, he is not liable for damage which is not the natural or ordinary consequence of such act, unless it be shewn that he knows, or has reasonable means of knowing, that consequences not usually resulting from the act are, by reason of some existing cause, likejy to intervene so as to occasion damage to a third person. Where there is no reason to expect it, and no knowledge in the person doing the wrongful act that such a state of things exists as to render the damage probable, if injury does result to a third person it is generally considered that the wrongful act is not the proximate cause of the injury so as to render the wrongdoer liable to an action." And Grove, J., said: "I am entirely of the same opinion. I think the act of the defendant was not the ordinary or proximate cause of the damage to the plaintiff's horse, or within the ordinary con- sequences which the defendant may be presumed to have contem- plated, or for which he is responsible. The expression, the 'natural' 132 CLARK V. CHAMBERS. [CHAP. III. consequence, which has been used in so many cases, and which I myself have no doubt often used, by no means conveys to the mind an ade- quate notion of what is meant; 'probable' would perhaps be a better expression. If on the present occasion the water had been allowed to accumulate round the spot where the washing of the van took place, and had there frozen obviously within the sight of the defendant, and the plaintiff's horse had fallen there, I shoidd have been inclined to think that the defendant would have been responsible for the conse- quences which had resulted." And Mr. Justice Keating .said: "The damage did not immediately flow from the wrongful act of the defend- ant, nor was such a probable or likely result as to make him responsible for it. The natural consequence, if that be a correct expression, of the wrongful act of the defendant would have been that the water would un- der ordinary circumstances have flowed along the gutter or channel, and so down the grating to the sewer. The stoppage and accumulation of the water was caused by ice or other obstruction at the drain, not shewn to have been known to the defendant, and for which he was in no degree responsible. That being so, it would ob\dously be unreasonable to trace the damage indirectly back to the defendant." We acquiesce in the doctrine thus laid down as applicable to the cir- cumstances of the particular case, but we doubt its applicability to the present, which appears to us to come within the principle of Scott V. Shepherd and Dixon v. Bell, and the other cases to which we have referred. At the same time, it appears to us that the case before us will stand the test thus said to be the true one. For a man who unlawfully places an obstruction across either a public or private way may anticipate the removal of the obstruction, by some one entitled to use the way, as a thing likely to happen ; and if this should be done, the probability is that the obstruction so removed wall, instead of being carried away altogether, be placed somewhere near; thus, if the obstruc- tion be to the carriageway, it will very likely be placed, as was the case here, on the footpath. If the obstruction be a dangerous one, whereso- ever placed, it may, as was the case here, become a source of damage, from which, should injury to an innocent party occur, the original author of the mischief should be held responsible. IVIoreover, we are of opinion that, if a person places a dangerous obstruction in a high- way, or in a private road, over wliich persons have a right of way, he is bound to take all necessary precaution to protect per.sons exercising their right of way, and that if he neglects to do so he is liable for the consequences. It is unnecessary to consider how the matter would have stood had the plaintiff l)een a trespasser. The case of Mangan v. Atterton, 4 H. & C. 388; Law Rep. 1 Ex. 239, was cited before us as a strong authority in favor of the defendant. The defendant had there exposed in a public market-place a machine for crushing oilcake without its being thrown out of gear, or the handle being fastened, or any person having the care of it. The plaintift", a boy of four years of SECT. II.] CLARK V. CH.\]VIBERS. 133 age, returning from school with his brother, a boy of seven, and some other boys, stopped at the macliine. One of the boys began to turn the handle; the plaintiff, at the suggestion of his brother, placed his hand on the cogs of the wheels, and the machine being set in motion, three of his fingers were crushed. It was held by the Court of Exchequer that the defendant was not liable, first, because there was no negligence on the part of the defendant, or, if there was negligence, it was too remote; and secondly, because the injury was caused by the act of the boy who turned the handle, and of the plaintiff himself, who was a trespasser. With the latter ground of the decision we have in the present case nothing to do; otherwise we should have to consider whether it should prevail against the cases cited, with which it is obviously in conflict. If the decision as to negligence is in con- flict wath our judgment in this case, we can only say we do not acquiesce in it. It appears to us that a man who leaves in a public place, along which persons, and amongst them cliildren, have to pass, a dangerous machine which may be fatal to any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character, and not the less so because the imprudent and unauthorized act of another may be necessary to realize the mischief to which the unlawful act or negligence of the defendant has given occasion. But be this as it may, the case cannot govern the present. For the decision proceeded expressly on the ground that there had been no default in the defendant; here it cannot be disputed that the act of the defendant was unlawful. On the whole, we are of opinion, both on principle and authority, that the plaintiff is entitled to our judgment. Judgment for the plaintiff} 1 See also Howe v. Ohmart, 7 Ind. App. 32, 33 N. E. 466. — Ed. 134 PULLMAN PALACE CAR CO. l\ BLUHM. [ciL^P. IH. PULLMAN PALACE CAR CO. v. BLUHM. Supreme Court of Illinois, 1884. [Reported 109 III. 20.] The action rests upon allegations by appellee, in his declara- tion, that being a laborer for appellant, using a defecti^'e der- rick of appellant in elevating lumber to the upper part of a building of appellant, he was hurt by the falling of the lumber upon him, "maiming, bruising, and battering him, and breaking and bruising his arm, and so disabling him that he has been unable to do manual labor from thence hitherto and remains still in the same condition," and that the falling of the lumber was caused "by reason of the unskillful and defective workmanship of defendant" in constructing and erecting the derrick, and "without any fault" upon the part of plaintiff. Dickey, J. ... It is insisted that the court erred in permitting plain- tiff to prove, in enhancement of his damages, that his arm, which was broken between the shoulder and elbow, was not cured, and that the parts of the bone, instead of uniting in one, had failed to unite, and formed what is called a "false joint." Appellant insists that this last was the result of bad surgery, and, to be proven, should have been set out as special damages, not being, as he suggests, such damages as ordinarily arise from a broken arm. We think the declaration is sufficiently specific to admit the proof. Whether this particular ailment (the false joint) was, or was not, the result of the breaking of the arm as a proximate cause, or the result of a new, independent factor, for which appellant was not responsible, could not be determined by the court as a question of law. It could be properly tested only by hearing the e\'idence and submitting the questions of fact to a jury, under appropriate instructions. There is evidence tending to show that had this broken arm received ordinary care and professional skill, the parts would have united \\'ith little or no permanent injury, and on this hypothesis alone appellant insists that the matter of this false joint should have been, at least hypothetically, excluded from the jury. We understand the law on this subject to be, that plaintiff cannot hold defendant answerable for any injury caused, even in part, by the fault of plaintiff in failing to use ordinary care or ordinary judgment, or for any injury not re- sulting from the fault of defendant, but caused by some new inter- vening cause not incident to the injury caused by defendant's wTong. Thus, in this case, if it be conceded that the false joint, under proper SECT. II.] SAUTER V. N. Y. CENTRAL & HUDSON RIVER R. R. CO. 135 care and skill, would not have resulted from the breaking of the arm alone, but was brought about by the subsequent separation of the parts after they had been properly set, and before nature had formed a firm union, then, if this subsequent separation of the parts had been caused by an assault and battery by a stranger, or some foreign cause with which appellant had no connection, and which was not in its nature incident to a broken arm, plainly appellant ought not to he held to answer for the false joint; but if appellee exercised ordinary care to keep the parts together, and used ordinary care in the selection of surgeons and doctors, and nurses, if needed, and employed those of ordinary skill and care in their profession, and still by some unskillful or negligent act of such nurses, or doctors or surgeons, the parts be- came separated, and the false joint was the result, appellant, if re- sponsible for the breaking of the arm, ought to answer for the injury in the false joint. The appellee, when injured, was bound by law to use ordinary care to render the injury no greater than necessary. It was therefore his duty to employ such surgeons and nurses as ordinary prudence in his situation required, and to use ordinary judgment and care in doing so, and to select only such as were of at least ordinary skill and care in their profession. But the law does not make him an insurer in such case that such surgeons or doctors, or nurses, w\\\ be guilty of no negligence, error in judgment, or want of care. The liability to mistakes in curing is incident to a broken arm, and where such mistakes occur (the injured party using ordinary care) the injury resulting from such mistakes is properly regarded as part of the immediate and direct damages resulting from the breaking of the arm.^ SAUTER V. NEW YORK CENTRAL & HUDSON RIVER ; RAILROAD CO. Court of Appeals of New York, 1 876. [Reported 66 N. Y. .50.] Church, C. J. The circumstances proved were sufficient to author- ize the jury to find that the injury was caused by the act of the de- fendant's employees. The CAndence tends to show that as the plaintiff's intestate was passing out of the car to alight, a sudden jerk was given 1 See also Wallace v. Pennsylvania R. R., 222 Pa. 556, 71 Atl. 10S6. — Ed. 136 SAUTER v. N. Y. CENTRAL & HUDSON RIVER R. R. CO. [cHAP. III. to it backward, and the plaintiff was thrown suddenly forward, his carpet-bag striking the railing, and he striking the carpet-bag. This was proved to be sufficient to cause the hernia of which he died. The circumstances pointed to this as the cause, and repelled the idea of any other. True, the evidence was that it might have been produced by many other causes, but there was no evidence tending to prove that it was produced by any other. On the contrary, the inference was legitimate that it was not. It is claimed that the injury was not the proximate cause of death. The deceased had what the surgeons denominated strangulated hernia, an injury certain to produce death, unless relieved. Being unable to reduce it by pressure, an operation was decided upon and performed by surgeons of conceded competency and skill. The operation is a very delicate and dangerous one, but is often and perhaps generally per- formed with success. In this case the post-mortem examination disclosed that there were two strictures, only one of which had been cut, and that a mistake was made by pressing the intestine into an abnormal cavity, between the peritoneum and pubic bone, produced in some manner by a separation of the peritoneum from the bone, instead of pressing it into the abdomen. There was a difference of opinion whether the immediate cause of death was by the inistake in pressing the intestine into the wrong ca\^ity or by the natural effect of the second stricture which was not cut; but assuming that it was the mistake, which is the most favorable for the defendant, is the principle invoked by the learned counsel applicable? I think not. The cases cited do not sus- tain the position. The case of Patrick v. Commercial Insurance Com- pany, 11 J. R. 14, was an action upon a policy against sea risks. The vessel stranded, but before she could be got off she was forcibly seized and burned by a public enemy, and it was very properly held that the damage was from the capture, and not the stranding. Levie V. Janson, 12 East., 655, was analagous in principle. To bring a case within the principle claimed, the general rule is that the actual injury must be occasioned by the intervention of some responsible third party or power. (Wharton on Neg., § 134.) I do not think that the mistake of the surgeon can, in any sense, be regarded as such. The employ- ment of a surgeon was proper, and may be regarded as a natural consequence of the act, and the mistake which it is .evident might be made by the most skillful, may be regarded iof the same character. In Lyons v. The Erie Railway, 57 N. Y. 489, the Com- mission of Appeals held, if one who is injured by the negligence of another, acts in good faith under the ad\'ice of a competent physician, even if it is erroneous, he may recover, and that the error is no shield to the wrongdoer. The rule is laid down in Conmion- wealth V. Hackett, 2 Allen, 137, that one who has wilfully inflicted upon another a dangerous wound from which death ensued, is guilty of murder or manslaughter, as the case may be, although, through SECT. II. J SAUTER V. N, Y. CENTRAL & HUDSON RIVER R. R. CO. 137 want of due care or skill, the improper treatment of surgeons may have contributed to the result. Here it is sought to shield the wrongdoer because the deceased failed to procure relief, although he used the usual and best available means for that purpose. He would have died Avnthout an operation; assuming that by the mistake of the surgeon the operation was not suc- cessful, can it be justly said, in the first place, that the surgeon and not the injury killed him; and in the second place, that the surgeon is to be regarded as a responsible intervening third person, within the rule referred to? There is no authority that approaches such a propo- sition. Hence there was no error in refusing to charge that if death was proximately caused by pressing the intestine into the abnormal caxnty, the plaintiff cotild not recover. The court had charged that if the hernia was not the proximate cause of death the plaintiff could not recover, nor unless it was caused by the defendant. The court also charged that if death was produced by the error, ignorance, blunder, or maltreatment of the surgeon, the plaintiff could not recover. The charge was quite as favorable to the defendant as the case would warrant. Error is also alleged upon the refusal of the court to charge that the plaintiff could not recover, unless the jury found that the injury would be reasonably apprehended by a prudent man as the result of the alleged movement of the cars. The court declined to charge other than as he had charged. He had charged that if after the train was stopped it was given such a jolt as to endanger the lives of passengers, the act would be wrongful. The sudden jerking of a train backward while passengers are rightfully passing out of the cars, is evidently liable to produce accidents, and under such circumstances is a negligent act. There was no foundation, therefore, for the test of apprehended danger by a prudent man. At all events, the charge made was favor- able to the defendant in any aspect of the case. The Northamp- ton tables were properly received. (Schell v. Plumb, 55 N. Y. 592.) The probable duration of the deceased's life was an element in estimating damages, and being so, it was proper to give this evi- dence upon the question. The judgment must he affirmed. All concur. Judgment affirmed. 138 COMMOmVEALTH V. HACKETT. [cHAP. III. COMMONWEALTH v. HACKETT. Supreme Judicial Coukt of Massachusetts. 1861. [Reported 2 All. 136.] IxDiCTMENT for iDurder.^ The defendant contended that there was evidence to sliow that the (v'ounds of the deceased were unskilfiiU}' and improperU' treated by the surgeons who attended him, and requested the court to instruct the jur\' as follows : " 1. The rule that the death must happen within a year and a day is one of limitation onh', and does not change the burden of proof, or release the government from the duty of proving a;ffirmativel3' that the deceased died of the wounds alleged in the indictment. 2. It is not enough to satisfy this burden for the government to prove that without the wounds the deceased would not have died. 3. If the death was caused by the improper api)Ucations or improper acts of the surgeons in dressing the wounds, the case of the government is not made out." The court instructed the jury in conformity with the first clause of the instructions asked for, but declined to give the others, and in place thereof instructed them, substantial!}', that the burden of proof was u[)on the government to prove be3-ond a reasonable doubt that the deceased died of the wounds inflicted by the defendant, but that this general rule required explanation in its appHcation to certain aspects of the present case ; that a person who has inflicted a dangerous wound with a deadl}' weapon upon the person of another cannot escape punishment by proving that the wound was aggravated by improper applications or unskilful treatment b}' surgeons ; that if, in the present case, the}' were satisfied that the wounds inflicted b\' the defendant were improperly and unskilfully treated by the surgeons in attendance, and that such treatment hastened or contributed to the death of the de- ceased, the defendant was not for this reason entitled to an acquittal ; but that the rule of law was that, if they were satisfied beyond a reasonable doubt that the defendant inflicted on the deceased dangerous wounds with a deadly weapon, and that these wounds were unskilfully treated, so that gangrene and fever ensued, and the deceased died from the wounds combined with the maltreatment, the defendant was guilt}' of murder or manslaughter according as the evidence proved tlie one or the other ; that, if they were satisfied not only that death would not have ensued but for the wounds, but also that tlie wounds were, when inflicted, dangerous, the defendant would be responsible, although improper and unskilful treatment might have contributed to the death ; that the law does not permit a person who has used a deadly wea|)on, and with it inflicted a dangerous wound upon another, to attempt to apportion his own wrongful and wicked act, and divide 1 Part of the case, which discussed the admissibility of certaiu evideace, is omitted — Ed. SECT. II.] COMMONWEALTH V. HACKETT. 139 the responsibility of it, by speculating upon the question of the extent to which unskilful treatment by a surgeon has contributed to the death of the person injured ; but, if they were in doubt whether tlie wounds were dangerous, or caused or contributed to the death, or whether the deceased miglit not have died from the unskilful treatment alone, then the defendant would be entitled to an acquittal. The defendant was found guiltj' of manslaugjiter, and alleged exceptions. BiGELOw, C. J. . . . We have looked with care into the authorities which bear on the correctness of the instructions given to the jury, relat- ing to the unskilful or improper treatment of the wounds alleged to have been inflicted by the prisoner upon the body of the deceased. We find them to be clear and uniform, from the earliest to the latest decisions. In one of the first reported cases it is said that " though a wound may be cured, yet if the party dieth thereof, it is murder." The King v. Reading, 1 Keb. 17. The same principle is stated in 1 Kale P. C. 428, thus : " If a man give another a stroke which it may be is not in itfeelf so mortal but that with good care he might be cured, yet if he die of this wound within a year and a day, it is homicide or murder, as the case is, and so it has been always ruled." " If a man receives a wound, which is not in itself mortal, but either for want of helpful applications, or neglect thereof, it turns to a gangrene, or a fever, and that gangrene or fever be the immediate cause of his death, yet, this is murder or manslaughter in him that gave the stroke or wound, for that wound, though it were not the immediate cause of death, 3et, if it were the mediate cause thereof, and the fever or gangrene was the immediate cause of his death, yet the wound was the cause of the gangrene or fever, and so consequently is causa causati.^' In Rew's case, as stated in 1 East P. C. c. 5, § 113, it was determined tiiat "though the stroke were not so mortal in itself but that with good care and under favorable circumstances the party might have recovered, yet if it were such from whence danger might ensue, and the party neglected it, or applied inefficacious medicines, whereby the wound which at first was not mortal in itself turned to a gangrene, or produced a fever, whereof he died, the part3- striking shall answer for it, being the mediate cause of the death." J. Kel. 26. So, in a more recent case, the jury were instructed that if the defendant wilfully and without justifiable cause inflicted a wound, which was ultimatelj- the cause of death, it made no difference whether the wound was in its nature instantly mortal, or whether it became the cause of death by reason of the deceased not having adopted the best mode of treatment. The real question is, was the wound the cause of death. Regina v. Holland, 2 M. & Rob. 351. From these and other authorities, the well estab- lished rule of the commoi\law would seem to be, that if the wound was a dangerous wound, that is, calculated to endanger or destroy life, and death ensued therefrom, it is sufficient proof of the offence of murder or manslaughter ; and that the person who inflicted it is responsible, 140 COMMOXAVEALTH V. HACKETT. [CHAP. III. though it ma}' appear that the deceased might have recovered if he had taken proper care of himself, or submitted to a surgical operation, or that unskilful or improper treatment aggravated the wound and con- tributed to the death, or that death was immediately caused bj' a surgical operation rendered necessarj- by the condition of the wound. 1 Russell on Crimes (7th Amer. ed.), oOo ; Roscoe's Crim. Ev. (3d ed.) 708, 706 ; 3 Greenl. Ev.§ 139 ; Commonwealth v. Green, 1 Ashm. 289. Regina v. Haines, 2 Car. & Kirw. 368 ; State v. Baker, 1 Jones Law R. (N. C.) 267; Commonwealth v. M'Pike, 3 Cush. 184. The princi- ple on which this rule is founded is one of universal application, and lies at the foundation of all our criminal jurisprudence. It is, that every person is to be held to contemplate and to be responsible for the natural consequences of his own acts. If a person inflicts a wound with a deadl}^ weapon in such manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result. Indeed it may be said that neglect of the wound or its unskilful and improper treatment, which were of themselves consequences of the criminal act, which might naturally follow in any case, must in law be deemed to have been among those which were in contemplation of the guilty party, and for which he is to be held responsible. But however this may be, it is certain that the rule of law, as stated in the authorities above cited, has its foundation in a wise and sound polic}'. A different doctrine would tend to give immunitj' to crime, and to take awav from human life a salutar}' and essential safeguard. Amid the conflicting theories of medical men, and the uncertainties attendant on the treatment of bodily ailments and injuries, it would be easy in man}' cases of homi- cide to raise a doubt as to the immediate cause of death, and thereby to open a wide door by which persons guilt}- of the highest crime might escape conviction and punishment. The instructions to the jury at the trial of this case were in strict conformity with the rule of law as it has always been understood and administered. Indeed the learned counsel does not attempt to show that it has ever been held otherwise. His argument on this point is confined to the signification which he attributes to the word maltreat- ment. This he assumes to be either wilful ill treatment, involving bad faith, of the wound of the deceased, or such gross carelessness in its management by the surgeons as would amount to criminality. But such is not its true meaning. Maltreatment may result either from ignorance, neglect, or wilfulness. It is synonymous with bad treatment, and does not imply, necessarily, that the conduct of the surgeons, in their treatment of the wounds of the deceased, was either wilfully or grossly careless. Nor was it used in any such narrow or restricted sense in the instructions given to tlie jury. On the contrary, in the connection in which it stands, it signifies only improper or unskilful treatment, and was intended to apply to the evidence as it was developed at the trial. Exceptions overruled. SECT. II.] PEOPLE v. COOK. 141 PEOPLE V. COOK. Supreme Court of Michigan. 1878. [Reported 39 Mich. 236.] Marston, J.^ . . . The ninth request was not given. This request was based upon a theory that where a mortal wound has been given, but the death is actually produced by morphine administered by the hand of another, there must be an acquittal. The State v. Scates, 5 Jones (N. C), 420, was relied upon as an authority in support of this prop- osition. In that case the jury was charged that if one person inflicts a mortal wound, and before the assailed person dies, another person kills him by an independent act, the former is guilty of murder, and this was held error. This case does not, however, come within the principle of that case. Here a mortal wound was given. Physicians were called in who pre- scribed for and treated the wounded man. Morphine was administered, and, it is claimed, in such unreasonably large quantities that it caused death. It was not claimed that these physicians were deficient in medical skill, or that morphine in proper quantities, and at proper times, sbould not have been administered, or that the deceased could, under any treatment, or in the absence of all treatment, have survived. Admitting the correctness of the authority relied upon, what applica- tion can such a rule have to cases like the present? If death was actually produced by morphine, can it be said in view of the facts "that another person killed the deceased by an independent act?" Here morphine was administered as a medicine by competent and skilful physicians ; it was a proper and appropriate medicine to be given. Was it the independent act of the physicians who prescribed, or of the nurses who administered the morphine? Was it the mortal wound likely to cause death at any moment, or an undue quantity of medicine unskilfully but honestly given to alleviate suffering, which actually caused death? Were the last powders, which constituted the overdose, given during the dying man's last moments, or so recenth* before death that they could not have caused it or materially con- tributed thereto? How, under the conflicting theories and uncertainties which would inevitably arise in such a case, could it be said which w:is the real cause? Could it be made to appear with clearness and cer- tainty that not the wound, but the medicines administered were the sole cause of the death? There are authorities which hold that the burthen of so proving would rest upon the accused, in cases where the wound was not a mortal one. The position which counsel seeks to establish amounts to this : that if a competent physician and surgeon in the treatment of a mortal wound directly causes death, although hastened 1 Only so much of the opinion as discusses the question of causation is given. — Ed 142 BUSH V. COMMON^VEALTH. [cHAP. III. bj never so short a period, the assailant is excused, even although deatli would inevitably have resulted from the wound under any or in the absence of all treatment. Such is not the law. Neglect or mis- treatment, and beyond such this (;ase does not go, will not excuse, -except in cases where doubt exists as to the character of the wound. Where death results in a case like the present, it can in no proper or legal sense be said to be the independent act of a third person. In a case where the wound is not mortal, the injured person may recover, and thus no homicide have been committed. If, however, death do result, the accused will be held responsible, unless it was occasioned, not b}' the wound, but by grossh' erroneous medical treatment. But where the wound is a mortal one, there is no chance for the injured person to recover, and therefore the reason which permits the showing of death from medical treatment does not exist. State v. Corbett, 1 Jones (Law), 267; State r. Morphy, 33 la. 270: 11 Amer. 122, uote and cases cited ; Roscoe's Crim. Ev. 717. BUSH V. COMMONWEALTH. Court of Appeals of Kentucky. 1880. [Reported 78 Ky. 268.] HiNES, J.^ . . . The following instruction is also objected to, to wit : " If the jury believe from the evidence, be3'ond a reasonable doubt, that the defendant, John Bush, in Fa3ette county, and before the finding of the indictment, wilfully shut Annie Vanmeter with a pistol, and that she died from the effects of the wound then inflicted upon her, whether said wound was the sole cause or was a contributory agency in pro- ducing death, when such shooting was not necessar}', and not reason- ably believed by the defendant to be necessarv for his own protection from immediate death or great bodilv harm then threatening him. the jury should find the defendant guilty : guilty of murder if the killing were also done with malice aforethought, or guilt3-of manslaughter if the killing were done in sudden heat and passion, and without malice." It is proper in this connection to state that the evidence was such as to justify the jur}- in finding that the wound inflicted b\' the shot was neither necessarily nor probably mortal, and that the death ensued, not from the wound, but from scarlet fever, negligentl}' communicated by the attending phvsician. As said in Commonwealth v. Hackett (2 Allen, 141), the rule of the common law would seem to be, that if the w^ound was a dangerous wound, that is, calculated to endanger or destroy life, and death ensued therefrom, it is sutticient proof of murder or manslaughter; and that * Only so much of the opinion as discusses the question of causation is given. — Ed. SECT. II.] BUSH V. COMMONW^EALTH. 143 the person who inflicted it is responsible, though it may appear that the deceased niiglit have recovered if he had talven proper care of him- self, or submitted to a surgical operation, or that unsliilful or improper treatment asjjravated the wound and contributed to tlie death, or that death was immediately caused by a surgical operation rendered neces- sary by the condition of the wound. Tlie principle on which this rule is founded is that every one is held to contemplate and to be responsi- ble for the natural consequences of his own acts. But if the wound is not dangerous in itself and death results from improper treatment, or from disease subsequently contracted, not superinduced by or resulting from the wound, the accused is not guiltyt (1 Hale's P. C. 428 ; Par- sons V. State, 21 Ala. 301.) When the disease is a consequence of the wound, although the proximate cause of the death, the person inflicting the wound is guilty, because the death can be traced as a result natu- rally flowing from the wound and coming in the natural order of things ; but when there is a supervening cause, not naturally intervening b}' reason of the wound and not produced by any necessity created by the wound, the death is by the visitation of Providence and not from the act of the party inflicting the wound. In the case under consideration, the fever was not the natural consequence of the wound, nor was it produced by any necessity created by the infliction of the wound. It did not render it necessary to have the wound treated by a physician just recovering from the scarlet fever, even if it be conceded that medical treatment was necessary at all. If the death was not connected with tiie wound in the regular chain of causes and consequences, there ought not to be any responsibility. If a new and wholly independent instrumentalit}' interposed and produced death, it cannot be said that the wound was the natural or proximate cause of the deatii. (14 Grattan, 601, Livingston v. Commonwealth.) This view of the law was not so presented to the jury as to give the appellant its full benefit. It should have been clearly and definitely presented to the jurv that if the}- believed from the evidence that death would not have resulted from the wound but for the intervention of the disease, the\' should not find the accused guilt}- of murder or manslaughter, but that the}- might find him guilty of wilfully and maliciously shooting and wounding under section 2, article 6, chapter 29, General Statutes ; or of shooting and wounding in sudden affray, or in sudden heat and passion, without malice, under section 1, article 17, chapter 29, General Statutes. 144 THOMPSON V. LOUISVILLE & NASHVILLE R. R. CO. [cHAP. III. THOMPSON V. LOUISVILLE & NASHVILLE RAILROAD CO. Supreme Court of Alabama, 1890. [Reported 91 Ala. 496.] Coleman, J. The suit is brought to recover damages for injuries alleged to have been wrongfully inflicted by the defendant on J. R. Thomas, an employee, on the 22d day of September, 1889, and from which, it is charged, the death of said employee resulted on the 29th September, 1889. The section of the code (section 2591) under which this suit is brought proA'ides that the personal representative may sue if such injury "results" in the death of the servant or employee. The section so often construed by this court pro\ades that the suit may be brought by the representative to recover damages for the in- jury, whereby the death was "caused." Code, §2589. "Cause" is that which produces an effect. "Result" is the effect of one or more concurrent causes. The same principles of law are alike applicable in either case. The testimony of skillful physicians tended to show that the injury inflicted was mortal, and the injured party would have died from the effects of the injury "in a short time." There was evi- dence also tending to show the wounds were not "necessarily mortal." The e\adence showed that by mistake the wife of the deceased, who was his nurse, gave to him internally four or five grains of corrosive sub- limate, which had been left by the physician to be used as a wash, and not to be given internally. It was proven that the poison would have caused the death of a well person, and it was in evidence that the poison was the immediate cause of death. The testimony of the phy- sicians further tended to show the wound was of such a character "that it may have hastened the death"; "may have caused him to die sooner from the effects of the corrosive sublimate than if he had not received the wound"; "that the corrosive sublimate adminis- tered to Thomas would have produced death 'quicker' in a man in Thomas' condition from the wounds received by him, than in a well man." Among others, the court charged the jury that, under the e\a- dence in this case, the death of plaintiff's intestate must have resulted either from the injury he received or from the poison he took. The injury and poison cannot both be the cause of his death. Further, that his death could not he the result of the injur^►% and, at the same time, the result of the poison. Further, that if he died from the effects of the poison, then they must find for the defendant, although his death was accelerated by reason of the injury received; or if he died "sooner" from the effects of the poison than he would have died, if he had not been injured. SECT. II.] THOMPSON V. LOUISVILLE S NASHVILLE K. R. CO. 145 In the case of Railroad Co. v. Jones, 83 Ala. 376, 3 South. Rep. 902, the court declared that although Mrs. Jones had pneumonia, from which she would ultimately have died, yet, if the injury caused by the negligence of the railroad, under the rules above declared, contributed and hastened her death, the corporation would not be guiltless. " That the railroad would not be exempt from liability for such an injury unless her death was solely the result of bad health." It does not fol- low that, because a man cannot die but once, there cannot be two or more concurrent, cooperative, and efficient causes to effect the one killing. A person may be killed by "beating and star\ing." There may be contributing causes. 3 Greenl. Ev., § 141. If, as the testi- mony tended to show, the injury received was mortal, and caused de- cedent to die "sooner" or "quicker" from the effects of the poison than he would have died had he not been injured, it is difficult to perceive how the poison can be regarded as the "sole" cause of his death at the time it occurred. If he would have lived longer without the injury than with the injury, the injury necessarily contributed to and ac- celerated his death, and was a part of the cause, causing death at the time it occurred. It is not intended by the court to assert the doctrine that, if a party inflict an injury not mortal, and, by the intervention of other causes, death results, the party inflicting the injury in all cases shall be held responsible for the death. The first cause may or may not be regarded as the proximate cause of a result according to the facts of the case. Bowles v. State, 58 Ala. 338, and authorities cited; 2 Bish. Crim. Law, § 668; 1 Shear. & R. Neg., § 125; Insurance Co. r. Tweed, 7 Wall. 44; Railroad Co. v. Kellogg, 94 U. S. 469; and many others. Railroad Co. v. Buck, 49 Amer. Rep. 170; Railway Co. v. Kemp, 48 Amer. Rep. 136; Scheffer v. Railroad Co., 105 U. k 249. The court ought not to have charged the jury, as a conclusion of law, that death did not and could not have resulted from both causes, the injury and the poison, in the face of the testimony of the physicians examined as witnesses to the effect that the death of the decedent was " acceler- ated" by the injury, or that the injury may have caused him to die "quicker" than he would have died without the injury. The charges of the court assert the further proposition that, though the injury inflicted was fatal, yet if, before death, the poison was given, and was sufficient to cause death, and was the immediate cause of death, the poison must be regarded as the proximate cause, and the jury must find for the defendant. To support this charge, the following proposition of law is cited, and many authorities and illustrations of the principle are'given : " That if a new force or power intervenes, sufficient of itself to stand as the cause of the misfortune, the other must be considered as too remote." We concede the correctness of the proposition, and its general acceptance, but do not concede its applicability to a case like the present. When the evidence shows that the result was not the probable or legitimate result of the first cause, and might not 146 THOMiPSON V. LOUISVILLE A: NASHVILLE R. H. CO. [CHAP. III. have resulted, but for some new, intervening cause, or this is a matter of contest, in such cases, the intervening cause may be regarded as the proximate cause, and the first as too remote; but we have been cited to no authority in a suit for the recovery of damages, where it was shown that, if the "result" was the necessary and inevitable effect of a first cause, and a new independent force intervened sufficient of itself to produce the effect, and only hastened the result, the first cause was held to be too remote. In such cases both causes necessarily con- tribute to the result. The difference may be illustrated in the well- kno-vvm case of the squib, cited by counsel. Scott v. Shepherd, 2 W. Bl. 892. If the person who first threw the squib had thrown it in a place where its explosion would hare been harmless, and someone, with- out reason or excuse, had picked it up, and started it again, with the injurious results that followed its explosion, this would have presented a case where the new and intervening cause would have been held tlie proximate cause, and sufficient to stand for the nusfortune. A better illustration, and more applicable, is that of the chain. "An article at the end of a chain may be moved by a force applied at the other end, that force being the proximate cause." Railway Co. v. Kellogg, 94 U. S. 474. Suppose the force at the other end is not sufficient to move the article, and a new, independent, intervening force is applied, which effects a removal, the new force will be held the proximate cause. But if the original force itself is sufficient to move the article, and wall surely move it, and a new, independent force intervenes, sufficient of itself to move the article, and which in consequence of the first force, accelerates or hastens the movement of the article, the new force does not "solely" or "alone" produce the movement, but the first force is concurrent and cooperates with the new force, and is a suffi- cient cause. If two persons WTongfully block up a street so that one is injured in attempting to pass, neither of the culpable parties can excuse himself by showing the wrong of the other, for the injury is the natural and proximate result of his own act. Cooley, Torts, p. 79. If a wound is inflicted, not dangerous of itself, and death was e\'idently occasioned by grossly erroneous treatment, the original author will not be account- able; but, if the wound was mortal, the person who inflicted it cannot shelter liimself under the plea of erroneous treatment. 1 Hale, P. C, 428; 1 East., P. C, 344, § 113; Parson v. State, 21 Ala. 301. So, in this case, if the injury had not been mortal, the poison would have been regarded as the proximate cause, according to the facts of the case, governed by other principles of law. See Bowles v. State, 58 Ala. 335, and authorities cited, supra. But, if the wound was mor- tal, the person who inflicted it cannot shelter himself under the plea of a new, intervening cause, if it be shown that the injury caused death to luippen "sooner" than it would ha^'e happened without the injury. If the original wrong becomes injurious only in consequence of some distinct wrongful act or omission by another, the injury shall be SECT. II.] ECKERT l\ LONG ISLAND RAILROAD CO. 147 imputed to the last'^vTong. " But if the original act was wrongful, and would naturally, according to the ordinary course of events, prove in- jurious to some other person, and does actually result in injury, through the intervention of causes which are not wrongful, the injury shall be referred to the wrongful cause." If damage has resulted directly from concurrent wrongful acts of two persons, each of these acts may be counted on as the proximate cause, and the parties held responsible jointly or severally for the injury. Cooley, Torts, pp. 68, 70, 78. These several principles of law fully illustrate the distinction to be observed, and the rules to govern in the present case. The principles of law de- clared in the following cases, carried out to their legitimate conclusions, tend to sustain the views here stated. Sauter r. Railroad Co., 66 N. Y. 50; Railroad Co. v. Buck, 49 Amer. Rep. 168; Beauchamp v. Mining Co., 50 Mich. 163, 15 N. W. Rep. 65. The measure of proof required by the use of the words "any doubt" in charge No. 17 is too high, and, al- though followed by explanatory or qualif^-ing words, the use of the word "proper" in the explanatory clause is misleading. A "reasonable conviction" is what the law requires. Railroad Co. v. Jones, 83 Ala. 376, 3 South. Rep. 902; Wilkinson v. Searcy, 76 Ala. 182. Exemplary ,damages are not recoverable in this action. See Railroad Co. v. Orr, ante, 360 (at this term). The complaint, as amended, was sufficient. Reversed and remanded. ECKERT V. LONG ISLAND RAILROAD CO. Court of Appeals of New York, 1871. [Reported 43 N. Y. .502.] Grover, C. J. The important question in this case arises upon the exception taken by the defendant's counsel to the denial of his motion for a non-suit, made upon the ground that the negligence of the plain- tiff's intestate contributed to the injury that caused his death. The evidence showed that the train was approaching in plain view of the deceased, and had he for his own purposes attempted to cross the track, or with a view to save property placed himself voluntarily in a position where he might have received an injury from a collision wath the train, his conduct would have been grossly negligent, and no recovery could have been had for such injury. But the evidence fur- 148 ECKERT V. LONG ISLAND RAILROAD CO. [cHAP. III. ther showed that there was a small child upon the track, who, if not rescued, must have been inevitably crushed by the rapidly approaching train. This the deceased saw, and he owed a duty of imperfect obli- gation to this child to rescue it from its extreme peril, if he could do so without incurring great danger to himself. Negligence implies some act of commission or omission wrongful in itself. Under the cir- cumstances in which the deceased was placed, it was not wrongful in him to make every effort in his power to rescue the child, compatible with a reasonable regard for his own safety. It was his duty to ex- ercise his judgment as to whether he could probably save the child without serious injury to himself. If, from the appearances, he be- lieved that he could, it was not negligence to make an attempt so to do, although believing that possibly he might fail and receive an injury himself. He had no time for deliberation. He must act instantly, if at all, as a moment's delay would have been fatal to the child. The law has so high a regard for human life that it will not impute negli- gence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons. For a person engaged in his ordinary affairs, or in the mere protection of property, knowingly and voluntarily to place himself in a position, where he is liable to receive a serious injury, is negligence, which will preclude a recovery for an injury so received; but when the exposure is for the purpose of saving life, it is not wrongful, and therefore not negligent unless such as to be regarded either rash or reckless. The jury were warranted in finding the deceased free from negligence under the rule as above stated. The motion for a non-suit was, therefore, properly denied. That the jury were warranted in finding the defend- ant guilty of negligence in ininning the train in the manner it was run- ning, requires no discussion. None of the exceptions taken to the charge as given, or to the refusals to charge as requested, affect the right of recovery. Upon the principle above stated, the judgment appealed from must be affirmed with costs. ^ Church, C. J., Peckham and Rapallo, JJ., concur. Allen and Folger, JJ., dissented. » See also Corbin v. Philadelphia, 195 Pa. AQl, 45 Atl. 1070. — Ed. SECT. II.] TURNER I'. PAGE. ' 149 TURNER V. PAGE. Supreme Judicial Court of Massachusetts, 1904. [Reported 186 Mass. 600.] Two ACTIONS OF TORT, one by a married woman for personal injuries, and the other by her husband for loss of consortium and expenses, and for injuries to the buggy in which the plaintiff in the first case was sitting when the accident occurred, alleged to have been caused by the negligence of the defendant's servant. Writs dated May 25, 1903. At the trial in the Superior Court before Gaskill, J., it appeared that the plaintiff in the second case had gone into a bank on Central Street in Gardner, leaving his wife sitting in the buggy, when a pair of horses, attached to a tip cart belonging to the defendant and without a driver, ran into the buggy, the pole of the tip cart breaking the back of the buggy and throwing out the plaintiff in the first case; that the driver of the tip cart had left his horses standing eight or ten feet from a railroad track while he went back about six or eight feet to pick up a part of his load of stove wood which had dropped from the cart; that there was a switching engine shifting back and forth over the crossing, puffing and blowing; that the horses suddenly started and ran, the driver running after them in vain; that one Buifum tried to stop the horses by standing in front of them and holding up a wooden rake which he had in his hand; that when the horses came upon him he jumped aside hitting or touching the head of one of them with the rake; and that the horses somewhat changed their course and ran into the buggy standing by the sidewalk as above described. At the close of the evidence the defendant asked the judge to make the following rulings : "1. Upon all the evidence, the plaintiff is not entitled to recover. "2. There is no sufficient e\ddence of negligence on the part of the defendant. "3. There is no sufficient evidence of negligence on the part of the driver of the horses which ran away to warrant a recovery. "4. If the horses which ran into the plaintiff would not have so collided and the injuries would not have occurred, except for the in- tervening attempt of Buffum to stop the horses, coupled with the blow with the rake over the head of the nigh horse, then the plaintiff cannot recover." 150 BLOOM I'. FKAXKLIX LIFE IXSURANCE CO. [CIL\P. III. LoRiNG, J.' The difficulty with the defendant's argument . . . in support of his exception to the refusal to give the fourth ruling asked for lies in the assumption that the persons who attempt to stop run- away horses will in fact act as the typical prudent man would act. We are of opinion on the contrary that among the natural and probable consequences of negligently letting a pair of horses run away it is competent to find that they will swerve to one side or the other on account of the acts of persons who try to stop them in a way which would not have been adopted by a prudent man, including waxing a rake and hitting one of the horses over the head with it. The case comes within Lane v. Atlantic Works, 111 Mass. 136; Koplan v. Boston Gas Light Co., 177 Mass. 15; Boston W^oven Hose & Rubber Co. v. Kendall, 178 Mass. 232; Murray i\ Boston Ice Co. 180 Mass. 165; see also Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 48 (where the earlier cases are collected); and does not come within Stone r. Boston & Albany Railroad, 171 Mass. 536; Glynn r. Central Railroad, 175 Mass. 510; Glassey r. Worcester Consolidated Street Railway, 185 Mass. 315. See also Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49. Exceptions overruled. BLOOM r. FRAxXKLIN LIFE IXSURANCE CO. Supreme Court of Indiana, 1884. [Reported 97 Ind. 478] Elliott, C. J. The policy of insurance upon which the appellant's complaint is founded contains a proxision that if the assured shall die by reason of intemperance from the use of intoxicating liquors, or in the known xnolation of the laws of the States or of the L'nited States, the policy shall be void. The answer of the appellee, after setting forth the proxasion of the policy, proceeds as follows: "And this defendant avers that the said August Bloom, the assured, came to his death in the following manner, to wit: On or about the 29th day of December, 1881, the said August Bloom, while in a state of intoxication from the use of intoxicating liquors, did commit an assault and battery upon one WiUielmina Bloom, the wife of his brother, Albert Bloom, at the town of Aurora, and State of Indiana, and while thus engaged in perpetrating said assault and battery, and while xiolently beating, bruising, choking, and maltreating her, the said wife of liis brother, he, the said August, ^ Part of the opinion is omitted. — Ed. \ SECT. II.] BLOOM V. FRANKLIN LIFE INSUIL\NCE CO. 151 being at the time in a state of intoxication, Iiis brother, the said Albert, did then and there, for the purpose of lawfully defending his wife against said assault and battery, strike the said August Bloom upon the head with a jack plane, or some other wooden instrument, thereby frac- turing the skull of him, the said August, and causing his death within a few hours thereafter." There can be no question as to the force and validity of the provision of the policy declaring it to be of no effect in the event that the assured shall come to his death from the effects of intemperance, or while engaged in wilful violation of the law. We do not, indeed, understand the appellant as insisting upon the invalidity of this provision, but as asserting that the facts stated do not show that the assured died from the effects of intemperance, or that he met his death while engaged in knowingly violating the law.^ Whether the violation of the law was the proximate cause of death, and whether it was an act increasing the risk, must in general be de- termined from the facts of the particular case. There must in all cases, whether the law violated be a criminal or a civil one, be some causative connection between the act which constituted the violation of law and the death of the assured. A man engaged in uttering coun- terfeit money might meet his death while so engaged, and yet there might be circumstances which would destroy the causal connection between the death and the liolation of law, and in such a case it is clear that the company would not be relieved from liability. On the other hand, an assured inight bring on his death while engaged in the \aolation of a civil law, as, for instance, in the case of an attempt to force an entrance into a man's house for the purpose of arresting him on ci\'il process. Another illustration may be found in the case of a railway engineer who, in violation of law, neglects to sound signals and brings on a collision in which he perishes, and a hundred examples are supplied in cases of collisions at sea or on na\-igable streams, brought about by a ^dolation of maritime laws. It would not be difficult to multiply examples pro\'ing that the rule must be that the known \'\o- lation of a ix)sitive law relieves the company where the act constituting the violation is the proximate cause of death, whether the positive law violated be a ci\'il or a criininal one. The act of the assured in this case was the proximate cause of his death -wnthin the meaning of the law. A man who makes a ^^olent assault uix)n a woman puts his own person in danger, for a father, a husband, or a child may interfere to protect the assailed woman, and may overcome the assailant by force. Strangers not onl}- may inter- fere to protect the person xiolently assaulted, but are, in strict law, under a duty to interfere. The natural result of such an \llegal act as that of the assured, therefore, was to bring his person into danger, and as death resulted his own act was the proximate cause. It may ' Part of the opinion is omitted. — Ed. \ 152 BLOOxM V. FRANKLIN LIFE INSURANCE CO. [CHAP. III. well be doubted whether an assured who \aolently assaults another does not cause a forfeiture, even though the rescuer uses excessive force; but that point we need not decide, for the interference in this instance was a lawful one. While the unlawful act of the assured must tend in the natural line of causation to his death, in order to work a forfeiture, it is not necessary that the act should be the direct cause, nor that the precise consequences which actually followed could have been fore- seen. It is enough if the act is unlawful in itself, and the consequences flowing from it are such as might have been reasonably expected to happen, for in such a case the ultimate result is traced back to the original proximate cause. Terre Haute, etc., R. R. Co. v. Buck, 96 Ind. 346; Cincinnati, etc., R. R. Co. v. Eaton, 94 Ind. 474; Dunlap V. Wagner, 85 Ind. 529 (44 Am. R. 42); Binford v. Johnston, 82 Ind. 426 (42 Am. R. 508); Billman v. Indianapohs, etc., R. R. Co., 76 Ind. 166; S. C. 40 Am. R. 230. In the case [of Cluflf v. Mutual, etc., Co., supra, the decision was, that where the assured made an assault upon another, and the person assaulted killed him, the policy was forfeited. The same general doctrine was maintained in Bradley v. Mutual, etc., Ins. Co., supra, but it was held that where there was any conflict of e\'idence, the question of whether the death was the natural result of the WTongful act must be left to the jury. In the case of Insurance Co. V. Seaver, 19 Wall. 531, the assured was dri\'ing in a race, a collision took place, he leaped from his sulky and was killed, and the court held that death was proximately caused by the unlawful act of racing. The subject received consideration in Miller v. Mutual Benefit Ins. Co., 34 Iowa, 222, where the assured, while suffering from a fit of de- lirium trerhens, escaped from his keepers, ran out into the street in inclement weather, and, by the exposure, brought on another form of disease which was the immediate cause of death. The court held that the proximate cause of death was the excessive use of intoxicating liquor. But there is really no reason for endeavoring to find insurance cases, for the fundamental principle must be the same wh«^ther the contract is one of insurance or an ordinary commercial agreement. The funda- mental principle is as old as the "Squib Case" on the ci\'il side of the common law, and on the criminal side as old at least as the time of Sir Matthew Hale. 1 Hale, P. C, 428; 1 Hawk., P. C, 93; Kelley v. State, 53 Ind. 311; Harvey v. State, 40 Ind. 516; Terre Haute, etc., R. R. Co. i\ Buck, 96 Ind. 346, auth. p. 350. Courts cannot be ignorant of the nature of men, and must attribute to them the ordinary passions and weaknesses inherent in human nature. It has been expressly adjudged that courts may presume that domestic animals Avill act in conformity to their usual propensities and habits, and surely there is stronger reason for extending this principle to beings of intelligence, reason, and affections. Wharton Neg., sections 100, 107; Billman v. Indianapolis, etc., R. R. Co., supra. It has, indeed, been laid down by respectable authority that notice will be taken of the SECT. II.] BLOOM V. FRANKLIN LIFE INSURANCE CO. 153 habits of men acting in masses, and if this be true, it must also be true that notice w-ill be taken of what an ordinary man would likely do under a known state of aiTairs. Wharton Neg., section 108. These considerations lead to the conclusion that a man who beats and mal- treats another's wafe may reasonably expect the husband to defend her ^\^thout being careful to select the means of defense, or to nicely weigh the degree of force. To expect a husband to act coolly and ^\dth careful circumspection in such a case is to expect an um-easonable thing. The probability is that the husband will in such a case use force, and this makes it probable that the one who assaults the wife will encounter force at the hands of the husband, and what is probable is, in legal contemplation, to be expected. Billman v. Indianapolis, etc., R. R. Co., supra, and authorities cited. If, therefore, an assured does assault another's wife, he does an unla^vful thing which he must expect will bring upon him \iolence from the husband, and if this force leads to death, then the proximate cause of death is the unlawful act which pro- voked the use of \iolence. The \iolation must be a known one, and w^e are inclined to think that the law^ \iolated must be a knowTi one, that is, must be one of which the violator has, or should have, actual knowledge. But there are many things of which no man can be ignorant, and among the things of wdiich no one can be ignorant is, that it is against the law to commit murder, to steal, or to \iolently beat another. We cannot doubt that the beating of Mrs. Bloom was an act knowTi by the assured to be a violation of law. The fact that the assured was intoxicated when he committed the assault and battery upon his brother's wife does not change the law. Drunkenness is no excuse for crime. Goodwin v. State, 96 Ind. 550, and authorities cited. A man who voluntarily makes himself drunk is in a measure responsible for his own irresponsibility. But, W'ai\ing this consideration, the degi'ee of intoxication does not appear to have affected the mental capacity of the assured, and the presumption here is, as in all cases, that the mental condition was a normal one. There is no force in the proposition that the assured did not lose his life in a known \iolation of law, but in consequence of the \iolation. The cause of the cause is in law sufficient, and the cause of the cause of death was the blow" given wiiile the assured was in the act of \iolating the law, and it is not material whether death did or did not imjnechately ensue. Terre Haute, etc., R. R. Co. v. Buck, supra. What we have said disposes of all the questions in the case, and it is not necessary to examine the special finding. Judgment affirmed. 154 COMMONW'EALTU V. a\i\IPBELL, [ciLA.P. III. COMMONWEALTH v. CAMPBELL. SuPBEME Judicial Court of Massachusetts. 1863. [Reported 7 All. 541.] Indictment for murder, b}' shooting William Currier on the 14th of Jul}', 1863. The trial took place in December, 1863, before Bigelow, C. J., and Metcalf, Mekkick, and Hoak, JJ. Foster, A. G., appeared for the Commonwealth, and J. G. Abbott and B. F. Russell^ for the prisoner. The homicide was committed near the armor}- in Cooper Street, in Boston, at about seven o'clock in the evening, during a riot which grew out of the enforcement of a draft of men for the army ; and the evidence offered by the government tended to show that the prisoner was there participating in the riot, with a large number of other persons.^ . . . It appeared that a military force was called out to suppress the riot in Cooper Street, and was stationed in the armory, and that the mob were fired upon bj- the soldiers, and the soldiers by the mob. After the evidence on both sides was closed, the attorne,v general requested, for the convenience of counsel, a decision upon the following prayer for instructions: *" Tliat whether Currier was killed by a shot from within or without the armory, all the parties unlawfully engaged in the trans- actions which resulted in the homicide were at common law guilt\', at least of manslaughter." Bigelow, C. J. The instruction asked for by the attorney general, as we understand it, is substantially this: If the defendant was a par- ticipator in the riotous assembly, and, during the attack made by it on the armory, a homicide took place, the defendant is in law guilty of manslaughter, altliough the evidence ma}' fail to show whether the shot which killed the deceased was fired by the rioters with whom the prisoner was acting in concert, or by the soldiers who were within the armory, and engaged in resisting the attack made upon the building by the rioters outside. This seems to us to present a novel question. No authority has been cited which directly supports the position as- sumed by the attorney general, and so far as we know there is none to be found. This consideration, though h\ no means decisive, is entitled to some weight, because the law of homicide, in its application to almost eveiy variety and combmation of circumstances, especial!}' to the taking of life by persons engaged in a tumult or riot or other un- lawful enter[)rise or design, is perhaps more fully and clearly settled than any other branch of the law. But we are bound to examine tlio question further, and ascertain, if we can, whether the doctrine in question has any just foundation in the recognized principles of law by which criminal responsibility for the acts of others is regulated and governed. 1 Part of the case discussing a question of evidence is oiiiittod. — Ed. SECT. II.] COMMONWEALTH V. CAMPBELL. 155 There can be no doubt of the general rule of law, that a person en- gaged in the commission of an unlawful act is legally responsible for all the consequences which may naturally or necessaril}- flow^ from it, and that, if he combines and confederates with others to accompUsh an illegal purpose, he is liable erlininuUter for the acts of each and all who participate with him in the execution of the unlawful design. As the}' all act in concert for a common object, each is the agent of all the others, and the acts done are therefore the acts of each and all. This doctrine, as applied to cases of homicide, is fully stated in 1 Hale P. C. 441, in a quotation from Dalton in these words: '* If divers persons come in one compan}^ to do any unlawful thing, as to kill, rob, or beat a man, or to commit a riot, or to do any other trespass, and one of them in doing thereof kill a man, this shall be adjudged murder in them all that are present of that part\' abetting him and consenting to the act or ready to aid him, although thev did but look on." So in 1 East P. C, 257, it is laid down that " where divers persons resolve generally to resist all opposers in the commission of an}- breach of the peace, and to execute it with violence, or in such a manner as natn- rall}' tends to raise tumults and affrays ; as b}- committing a violent disseisin with great numbers, or going to beat a man, or rob a paik, or standing in opposition to the sheriff's posse, they must at their peril abide the event of their actions;" and if in doing any of these or similar acts an}- person interfering with them is killed, all who took part in the fact or abetted thereto are guilty of murder. These citations to which many others of a similar tenor might be added, show that the rule of criminal responsil)ility for the acts of others is subject to the reasonable limitation tliat the particular act of one of a party for which bis associates and confederates are to be held liable must be shown to have been done for the furtherance or in prosecution of the common object and design for which they combined together. AYitliout such limitation, a person might be held responsible for acts which were not the natural or necessar}' consequences of the enterprise or undertaking in which he was engaged, and which he could not either in fact or in law be deemed to have contemplated or intended. No person can be held guilty of homicide unless the act is either actuall}- or construc- tiveh' his, and it cannot be his act in either sense unless committed by his own hand or by some one acting in concert with him or in further- ance of a common object or purpose. Certainly that cannot be said to be an act of a party in any just sense, or on any sound legal princi- ple, which is not only not done by him. or by any one with whom he is associated or connected in a common enterprise, or in attempting to accomplish the same end, but is committed by a person who is his direct and- immediate adversary, and who is. at the moment when the alleged criminal act is done, actually engaged in opposing and resist- ing him and his confederates and abettors in the accomplishment of the unlawful object for which they are united. Suppose, for exain[)le, a burglar attempts to break .into a dwelling-house, and the owner 156 COMMONWEALTH V. CAMPBELL. [CHAP. III. or occupant, while striving to resist and prevent tlie unlawful entrance, b}- misadventure kills his own servant. Can the burglar in such ease be deemed guilty of criminal homicide? Certainly- not. The act was not done l^y him, or with bis knowledge or consent ; nor was it a neces- sar3' or natural consequence of the commission of the offence in which lie was engaged. He could not therefore have contemplated or in- tended it. Another illustration will perhaps be more apposite to the case before us. Suppose, during the progress of the riot in which it is alleged the prisoner was engaged, and while the soldiers and others in possession of the armory were in the act of repelling the attack of the mob in the street b^^ firing upon it with a cannon whicli was used on the occasion, that it had burst b}' reason of some secret defect, and killed several of those who were in its immediate vicinit}' ; or tliat a soldier while handling his musket had bj- accident inflicted a mortal wound on himself; it would hardlj' be contended that in either of these cases the wliole bod3^ of rioters could be held legally responsible for criminal homicide, hy reason of the lives that were thus destroyed. And yet there is no real distinction between the cases supposed and that of the prisoner at the bar, if the rule insisted on b}' the attorney general is a sound one. The taking of human life, under the circum- stances supposed, in a certain sense was the result of the unlawful acts of the mob — that is, it would not have occurred but for the riot which furnished the cause and occasion of the use of the musket or cannon. Indeed, it seems to us that in every aspect the doctrine contended for, if followed to its legitimate and logical conclusion, would lead to extraordinary consequences. It would render everybody who partici- pated in a transaction, whether acting in concert or in opposition, whether united in a common design or arrayed on opposite sides in a contest or affra}' in wliich each contending party was striving to defeat the purposes of the other, if all acted without legal justifica- tion, responsible for ever}' criminal act which was done by any person during the progress of the affair in which they were all engaged. Nor, in applying the principle in question to a case like the one before us, can we see any good reason why the soldiers who defended the armory and resisted the mob, if it sliould turn out that thej- acted without sufficient legal authoritv to justify their acts, might not be held guilty of manslaughter for homicides committed b\' the rioters, if the latter are to be held responsible for deaths caused by the acts. of the soldiers? But the rules of law do not give any countenance to such a doctrine. The real distinction is between acts which a man does either actually or constructively, by himself or his agents oV confedei'ates, and those which were done by others acting not in concert with him or to effect a common object, but without his knowledge or assent, either express or implied. For the former tlie law holds him strictly responsible, and for all their necessary and natural consequences, which he is rightfully deemed to have contemplated and intended. For tlie latter he is not liable, because they are not done by himself or by those with whom he SECT. II.j COMMONWEALTH V. CAMPBELL. 157 is associated, and no design to commit them or intent to bring about the results which flow from them can be reasonably imputed to him. So the rule of law was manifestly understood b}- the framers of the clause contained in Rev. Sts. c. 129, § 6, reenacted in Gen. Sts. c. 164, § 6, which })rovides that if any officer, magistrate, or other person, act- ing in the suppression of an unlawful assembly, tumult, or riot is killed or wounded, all persons taking part in such violation of law shall be answerable therefor. This was clearly not intended as a limitation of the liabilit}- at common law, but only as declaratory of the rule as it then existed and was understood. The case of the Philadelphia rioters, cited by the attorney general from the Appendix to Wharton's Law of Homicide, 477, is obscureh* and iraperfectl}- reported. If it can be supported at all as a true expo- sition of the law, it can only be upon the ground that both parties or sides had a common object in view, namely, a breach of the peace, and that both went out by an agreement or mutual understanding to en- gage in an atfray or riot. If such was tlie fact, then, as in the case of a duel, although to accomplish the common purpose the}' took oppo- site sides, still they might all well have been deemed to have con- federated together in an unlawful enterprise, and thus to have become responsible, on the principle already stated, for a criminal act done in pursuance of the common design b}- an}- one of tlieir confederates, with whichever side he may have acted in the affra}'. It ma}' properly be added that we can see no foundation in any aspect of the case for the distinction suggested by the attoi'ney general as to the degree of homicide of which the defendant would be guilty, in the event that the jury should find that the deceased was killed by a shot fired by the soldiers in the armory, and not by the mob. If the doctrine contended for is cori-ect, there can be no valid reason for holding the defendant guilty of manslaughter only. If he, as one of the riotous conspirators, is liable at all for acts done by the soldiers and others cooperating with them, his guilt must be the same in degree as if a homicide was committed by one of the rioters with whom he was acting in concert. If it was his act at all, then it was committed by him or his confederates while engaged in an unlawful enterprise, and, according to well-settled principles, it would be murder, and not manslaughter. But, for the reason already given, it cannot be regarded as an act for which he is in law responsible. If the homicide was the result of a shot fired by the soldiers or other persons in the armory, acting together in defence against the riotous assembly, the defendant cannot be held guilty of either murder or manslaughter. The jury will accordingly be instructed that, unless they are satisfied be ond a reasonable doubt that the deceased was killed by means of j, gun or other deadly weapon in the hands of the prisoner, or of une of the rioters with whom he was associated and acting, he is entitled to an acquittal. The jury acquitted the prisoner.^ 1 Ace. Butler v. People, 125 111. 641, IP N. E. 338 ; Com. v. Moore (Ky.), 88 S. W. 1085. Ed. 158 UNITED STATES V. FREEMAN. [cHAP. III. SECTION III. Intervening Force Risked as Result of First Force. UNITED STATES v. FREEMAN. Circuit Court of the United States, 1827. [Reported 4 Mason, 505.] Indictment against the defendant for the murder of one Da\ad Whitehead, on the high seas, on board of the brig Floyd, of which the defendant was master, and Whitehead a seaman, and one of the crew, on the 28th of April, 1827. The indictment laid the charge in two counts. The first stated, that the prisoner made an assault upon Whitehead, and threw him overboard, and he was drowned. The second stated, that the prisoner, lieing master of the brigantine Floyd, and White- head an ordinary seaman on board the said vessel, but in a weak state of body, and unable to perform the duty of a seaman, and the prisoner, knowing that Whitehead was unable to perform his duty, wilfully ordered and compelled him, without his consent, and against his will, to go aloft upon the mainmast and rigging of the vessel, and that \A'hitehead, by said compulsion, attempting to go up aloft, by reason of his weakness of body fell overboard into the sea and was drowned, whereby said Freeman wilfully murdered said Whitehead. . . . Story, J. in the course of his summing up to the jury, stated his opinion as follows: . . . The first inquiry proper for the jury then is, whether Whitehead came to his death by mere accident or misadventure; or whether it was occasioned by his debility and exhaustion, arising from physical infirmity at the time of his fall from the yard. If occasioned by such debility and exhaustion, the next inquiry ought to be, whether that state of debility and exhaustion was fully knowni to Capt. Freeman, when he gave the orders for his. Whitehead's going aloft. If so, were the circumstances such as, that Capt. Freeman must, and ought to have foreseen, that the enforcement of his order to go aloft would proliably be attended, either by death or enormous bodily injury by falling, to Whitehead, so that the jury can justly infer, that it must have been persisted in from personal malice to the deceased, or from such a brutal malignity of conduct, as carries with it the plain indica- tions of a heart regardless of social duty, and fatally bent on mischief. If so, it was murder. And it would not var\' the case, that the moral SECT. III.] ATCHISON, TOPEKA AND SANTA FE RY. CO. V. PARRY. 159 force of the authority of the master to compel performance, instead of physical fol-ce, produced compHance with the order on the part of Whitehead, although the latter was sensible of his own extreme debility. If the jury are not satisfied, that there was either actual malice to the deceased, or constructive malice, arising from l^rutal malignity, as before mentioned; still, if the circumstances of the case show, that there was gross heedlessness, want of due caution, and unreasonable exercise of authority on the part of Capt. Freeman, and that he ought to have knowTi, and could not but have knoA\Ti, that Whitehead was unfit to go aloft, and that there was probable and immediate danger to his life in his so doing, then, notwithstanding the absence of such malice, the offence is at least manslaughter. For every act done wil- fully, and with gross negligence, by any person, the known effect of which, under the circumstances, must be to endanger life, is, if death ensues, at least manslaughter. Verdict, guilty of manslaughter, and sentence accordingly. ATCHISON, TOPEKA AND SANTA FE RAILWAY CO. V. PARRY. Supreme Court of Kansas, 1903. [Reported 67 Kan. 51.5.] Cunningham, J. Robert Parry was a passenger on the Santa Fe Railway going from Purcell, Ind. T., to Denver, Colo. In making this journey he was required to change cars at Newton, Kan. As the train approached Newton, and a mile or two south of it, the con- ductor observed that Parry was ailing with something that looked to him like a fit. He noticed that Mr. Parry " was straightened out, and his limbs were stiff and jerking. He was frothing at the mouth, and his eyes looked glaring and starry, just like a man that had a fit." When the train arrived at Newton, Mr. Parry seemed to be recovering, but had not entirely regained consciousness, and the conductor was unable to get any response when he tried to converse with him. The con- ductor called the depot master, who, with the assistance of the porter, removed Mr. Parry from the train, the depot master being informed by the conductor of the condition of the passenger, and requested to take care of him, and see that he was put upon the right train to take him to his destination, which train was to leave in about four .lours. After the passenger was removed from the train, he was left in ne care of the depot master, the porter going to his other duties. The depot master tried to talk with him, but elicited nothing but groans, mutter- 160 ATCHISON, TOPEKA AND SANTA FE RY. CO. r. PARRY. [CHAP. III. ings, and unintelligible replies. It seemed, however, to the depot master that he desired to go his own way without any assistance, so that, after helping him on with his coat, he was allowed, after about five or ten minutes, to take his own course, without further attention, the depot master supposing that he had been drinking, and desired to go where lie could procure liquor. The next seen of him was about four hours after his removal from the train, at a point about five miles south of Newton, where, having lain down upon the railway- tracks, he was run over by a south-bound train and killed. The negligence counted upon l)y the plaintiff, his widow, as a ground for recovery, was that the company failed to exercise a proper degree of caution and care in looking after Mr. Parry after he was removed from the train in an unconscious and irresponsible condition of mind and body. The jury returned a general verdict in favor of the defendant in error, and also answered special questions submitted to them, among which are the following: "(7) What was his appearance and condition, mentally and physically, on his arrival at Newton? Ans. Recovering from a convulsion, and partially unconscious. (8) Did J. W. Anderson, the depot master, at Newton, of the defendant, take charge of the de- ceased upon his arrival at Newton? Ans. He did." " (10) Does said Anderson possess the common and ordinary capabilities, judgment, and prudence of men and persons generally? Ans. We think so. (11) About how long did said Anderson keep charge of said deceased? Ans. Five to ten minutes." " (15) When said Anderson ceased to care for the deceased, did Anderson* believe that the deceased had sufficient strength and consciousness to take care of himself? Ans. He claimed so. (16) At the time Anderson ceased to care for the deceased, did he think or contemplate that deceased would wander away, and after- wards get into a place of danger and lose his life? Ans. No." The railroad company demurred to the plaintiff's evidence, which was over- ruled. It also moved for judgment in its favor upon the special find- ings. This was overruled, and judgment entered for plaintiff upon the general verdict. The railway company here insists that the judgment against it was erroneous, first, because there was no e\'idence shoA\ang any culpable negligence on the part of any of its agents or servants; second, if there was, that such negligence was not the proximate cause of the injury.^ It is further contended that, even though the depot master was neg- ligent in his manner of treatment of the deceased, such negligence was npt the proximate cause of the death; that no reasonably prudent man would have foreseen that Parry would have wandered away for a dis- tance of five miles, and have laid down or fallen upon the track in such a place and position that he would be run over by the train, and 1 The court held that there was sufficient evidence to support the verdict upon the first point. — Ed. , SECT. III.] ATCHISOX, TOPEKA AND SANTA FE RY. CO. V. PARRY. 161 thus killed; and that the company, therefore, was not required to guard against so improbaljle a result. Negligence, to be the proximate cause of an injury, must be such that a person of ordinary caution and prudence would have foreseen that an injury would likely result there- from; not that the specific injury would result, but an injury of some character. " ' It is not necessary,' say the Supreme Court of Minnesota, following the Supreme Judicial Court of Massachusetts, ' that the injury, in the precise form in which it in fact resulted, should have been fore- seen. It is enough that it now appears to have been a natural and probable consequence.' In other words, it is not necessary to a de- fendant's liability, after his negligence has been established, to show, in addition thereto, that the consequence of his negligence could have been foreseen by him; it is sufficient that the injuries are the natural, though not the necessary and inevitable, result of the negligent fault." Thompson's Com. Law of Neg., § 59. It here appears that the place where the depot master permitted Parry to go by himself was near a street crossing over which tracks were laid along which trains passed. It was a place of danger to one not in the possession of his faculties; a place where the depot master might reasonably have apprehended that harm of some sort would come to Parry in his then condition. So that, although he wandered for four hours, and was run over five miles from this place, the act of the depot master in permitting him to go was no less the proximate cause of his death than it would have been if it had occurred within a short distance and a few moments. At most, the question whether the negligence of the depot master was the proximate cause is one upon which the minds of different parties might reasonably disagree, and, such being the case, and the whole matter having been sul)mitted to a jury under proper instructions, and it having found that it was, we may not disregard these findings of fact. We are of the opinion that upon both questions there was suffi- cient evidence to go to the jury and to sustain the general finding in favor of the defendant in error. The judgment will be affirmed. All the Justices concurring. 162 ' GIOIAN r. XOYES. [CIL\P. III. OILMAN V. NOYES. Superior Court of Judicature of New Hampshire, 1876. [Reported 57 .V. //. 627.] Case, for carelessly leaving the plaintifT's bars down, whereby his cattle and sheep escaped, and he was compelled to expend, and did expend, time and money in hunting for the same, and his sheep were wholly lost. The e\'idence tended to show that the defendant, in looking after his own cattle, left the plaintiff's bars down, and that his cattle, and three sheep belonging to one Marshall, and which the plaintiff was pasturing, were wholly lost. The defendant denied that said cattle and sheep escaped through the bars, and introduced e^'idence tending to show that they escaped through other fence of the plaintiff, and with- out fault on the part of the defendant. As tending to show that the defendant was liable, the plaintiff, without objection, testified that he called on the defendant, soon after he ascertained that his cattle and sheep had escaped, and claimed that they had escaped through Lis fault and requested liim to go and look them up ; to which the defend- ant replied, that he could not then go, but that the plaintiff must look them up himself, and he would pay him what was right for the damage and for his trouble. The defendant did not admit that he made these statements, as testified to by the plaintiff, and claimed that whatever he did say was under a misapprehension. The e\'idence tended to show that the sheep were destroyed by bears after they had escaped from the plaintiff's pasture. The defendant claimed that the damages were too remote, and that they were not the natural consequences of the alleged careless acts of the defendant. The defendant requested the following instructions: 1. If the jury find to be true the statement of the plaintiff, that, when he went and first called on the defendant, the defendant told him that he was in for the damage, and he wanted him, the plaintiff, to hunt up the cattle, and he would pay the plaintiff what was right for the dam- age, and that the plaintiff assented to this, he cannot recover in this form of action. SECT. III.] CILMAX l\ XOYES. 163 2. That if the jury find that the plaintiff and the defendant agreed that the plaintiff should hunt up the cattle, and that the defendant should pay him what was right for the damages, this action cannot be maintained. 3. If the jury find that it was agreed by the parties that the plaintiff was to hunt up the cattle, and the defendant was to pay the plaintiff the expense and trouble of hunting, the plaintiff cannot recover for such trouble and expense so incurred at the request of the defendant in this form of action. His remedy would be assumpsit. 4. That, the sheep being the property of Marshall, the plaintiff can- not in this action recover the value of the same. 5. That if the jury find that the sheep were killed by bears after their escape from the pasture, the plaintiff cannot reco^■er, as the dam- ages would be too remote. These requests the court denied, but did instruct the jury, among other things, that if the defendant left the plaintiff's bars down, and his cattle thereby escaped, he was entitled to recover for the time and money expended in hunting for them; that if the sheep were in his possession and care, and they escaped in consequence of the bars being left down by the defendant, and would not have, been killed but for the act of the defendant, he was liable for their value, whether the plaintiff was the absolute owner or not; that the statements made by the de- fendant were proper to be considered by the jury upon the question whether or not the damages to the plaintiff were occasioned by tlie acts of the defendant. To all of which refusals and instructions the defend- ant excepted. The jury returned a verdict for the plaintiff, and assessed the damages for hunting for the cattle at $13.16, and for the sheep at S9. The defendant moved to set the verdict aside, and for a new trial. The questions of law arising on the foregoing case were transferred by Stanley, J., C. C. Gushing, C. J. The objection to the requests for instructions in regard to the compromise is, that they are not based upon the evidence. The evidence was to the effect that the defendant admitted his liability, and said that he would pay the damage. But there was nothing said or done by the parties from which the jury could infer an accord and satisfaction if it had been pleaded, and that defense could not be taken at all without a plea to that effect. As to the objection that the plaintiff could not recover because the sheep were the property of Marshall, it seems enough to say that it is very well settled in this state that a bailee has sufficient interest in the property bailed to sustain an action for damage done to it. It, should have been left to the jury to determine whether the injury 164 OILMAN V. NOTES. [cHAP. III. was one for which the defendant's fault was the proximate cause. The court rightly refused to instruct the jury that the damage was too remote, because that was a matter for the jury to determine. I am not prepared, however, to liohl, that the criterion, for determining whether the defendant's fault was the proximate cause of the damage, is, whether the damage would or would not have happened without the defendant's fault. This matter of remote and proximate cause has been recently a good deal discussed in the case of fires occasioned by the negligent manage- ment of locomotives. Where the fire has spread from point to point and from l)uilding to building, the question to what extent the negli- gence was the proximate cause has been held to be for the jury to de- termine. But in no one of those cases, whether the damage was held to be proximate or remote, could it have happened at all except for the negligence complained of. I think the doctrine of the cases now is, that the question whether the damage is remote or proximate is a question of fact for the jury, and that the jury have to determine whether the damage is the natural consequence of the negligence, and such as might have been anticipated by the exercise of reasonable prudence. If the damage would not have happened without the intervention of some new cause, the operation of which could not have been reasonably anticipated, it would then be too remote. 2 Parsons on Contracts, 179; State v. Manchester & La^Tence Railroad, 52 N. H. 552, and cases there cited; Fent v. Toledo, Peoria & Warsaw Railway Co., 59 III. 349; S. C. 14 Am. R. 13. In the present case it appears that the e\adence tended to show the intervention of such new cause — viz., bears — and it would have been for the jury to say whether it was natural and reasonable to expect that if the sheep were suffered to escape they would be destroyed in that way. If these views are correct, the verdict must be set aside, and a new trial granted. Smith, J. I concur in the foregoing conclusions of the chief justice, and for the reasons given l)y him. The principal question in this case has been much discussed in the English and American courts, though but little in this State. The rule, that the plaintiff can recover only when the defendant's act or negligence was the proximate cause of the injury, is one of universal application; but the difficulty lies in deter- mining when the cause is proximate and when remote. It is a mixed question of law and of fact, to be submitted to the jury under proper instructions. W'e have recently held that it is always for the jury to say whether the damage sustained is what the defendant ought to have expected, in the exercise of reasonable care and discretion. Stark V. Lancaster, 57 N. H. 88, and authorities cited; McInt>Te v. Plaisted, 57 N. H. 606. See, also. State v. M. & L. R. R., 52 N. H. SECT. III.] GILMAX V. NOYES. IGo 552; Gate v. Gate, 50 N. H. 144; Underhill v. Manchester, 45 X. H. 218. The rule, as thus laid down, is also given in substance in 2 Parsons on Gontracts, 456; 2 Gr. Ev., § 256, and Sedgw^ck on Damages, 88. The numerous cases in which this question has been discussed are cited by the above authors. It would be an unnecessary labor to re- view' them in detail. In this case the e\adence tended to show the intervention of a new cause of the destruction of the plaintiff's sheep after their escape from his pasture, which could not reasonably have been anticipated. The only practicable rule to be drawn from all the cases, for determining this case, it seems to me, is, to inquire whether the loss of the plain- tiff's sheep by bears was an event which might reasonably have been anticipated from the defendant's act in lea\ing his bars down, under all the circumstances of this case. If it was a natural consequence which any reasonable person could have anticipated, then the defendant's act was the proximate cause. If, on the other hand, the bears were a new agency, which could not reasonably have been anticipated, the loss of the sheep must be set down as a remote consequence, for which the de- fendant is not responsible. * The jury were instructed that if the sheep escaped in consequence of the bars being left down by the defendant, and would not have been killed but for this act of the defendant, he was liable. Under these instructions the jury could not inquire whether the destruction of the sheep by the bears was an event which might reasonably have been an- ticipated from the leaving of the bars down, and for this reason I agree that the verdict must be set aside. Ladd, J. I am unable to free my mind from considerable doubt as to the correctness of the ground upon which my brethren put the decision of this case. The defendant requested the court to charge that, if the jury found that the sheep were killed by bears after their escape, the damages would be too remote. This the court declined to do, but did instruct them that if the sheep escaped in consequence of the bars being left down by the defendant, and would not have been killed but for that act of the defendant, he was liable for their value. Both the request and the instruction went upon the ground that the question of remoteness — all the facts being found — was for the court, and not for the jury. Upon that distinct and simple question the defendant claimed one way and the court held the other. I understand it to be the opinion of my brethren that neither was right; that the question of remoteness was for the jury, and that the court erred in not so treating it. Whether it is for the jury or the court, everyone who has considered the matter will agree that it is almost always a troublesome question, and often one attended with profound intrinsic difficulty. 106 GILMAN -v. NOYES. [ciIAP. III. The verdict here settles (1) that the bars were left clown by the defendant; (2) that the sheep escaped in consequence thereof; (3) that the}^ would not otherwise have been killed. Was the defendant's act the proximate cause of the damage? Was it the cause in such sense that the law will take cognizance of it by holding the defendant liable to make reparation in damages? And is that question one for the court, or for the jury, to decide? The sheep would not have been killed, the jury say, but for that act: does it follow that the damage was not too remote? Certainly, I think, it does not. That one event would not have happened but for the happening of some other, anterior in point of time, doubtless goes somewhat in the direction of establishing the relation of cause and effect between the two. But no rule of law as to remoteness can, as it seems to me, be based upon that one cir- cumstance of relation alone, because the same thing may very likely be true with respect to many other antecedent events at the same time. The human powers are not sufficient to trace any event to all its causes, or to say that anything which happens would have happened just as it did but for the happening of myriads of other things more or less re- mote and apparently independent. The maxim of the schoolmen — Causa causantis, causa est causati — may be true, but it obviously leads into a labyrinth of refined and bewildering speculation whither the law cannot attempt to follow. This case furnishes an illustration. The jury say the sheep would not have been killed by bears but for their escape, and would not have escaped but for the bars being left down. But it is equally certain, without any finding of the jury, that they would not have been killed by bears if the bears had not been there to do the deed ; and how many antecedent facts the presence of the bears may involve, each one of which bore a causative relation to the princi- pal fact sufficiently intimate so that it may be said the latter would not have occurred but for the occurrence of the former, no man can say. Suppose the bears had been chased by a hunter, at any indefinite time before, whereby a direction was given to their wanderings which brought them into the neighborhood at this particular time; suppose they were repulsed the night before in an attack upon the beehives of some farmer in a distant settlement, and, to escape the stings of their \'in-' dictive pursuers, fled, with nothing but chance to direct their course, towards the spot where they met the sheep; suppose they were fright- ened that morning from their repast in a neighboring cornfield, and so brought to the place of the fatal encounter just at that particular point of time. Ob\aously the number of events in the history not only of those in- dividual bears, but of their progenitors clear back to the pair that, in instinctive obedience to the di\ine command, went in unto IJJoah in the ark, of which it may be said, but for this the sheep would not have been killed, is simply without limit. So the conduct of the sheep, both before and after their escape, opens a field for speculation equally pro- SECT. III.] GILMAN V. NOTES. ' 1G7 found and equally fruitless. It i^ easy to imagine a vast variety of circumstances, without which they would not have made their escape just at the time they did though the bars were down, or, having escaped, would not have taken the direction to bring them into the way of the bears just in season to be destroyed, as they were. Such a sea of speculation has neither shores nor bottom, and no such test can be adopted in drawing the uncertain line between consequences that are actionable and those which are not. Some aid in dealing with this question of remoteness in particular cases is furnished by Lord Bacon's rule — In jure causa proxima, non remota spectatur — and other formulas of a like description, because they suggest some boundaries, though indistinct, to a wilderness that other- wise, and perhaps in the nature of things, has no limit. Where damages are claimed for the breach of a contract, it has been said that the nearest application of anything like a fixed rule is, that the injury for which compensation is asked should be one that may be fairly taken to have been contemplated by the parties as the possible result of the breach of contract. Cockburn, C. J., in Hobbs v. Lx)ndon & S. W. Railway Co., L. R. 10 Q. B. 117. In tort, they must be the legal and natural consequence of the wrongful act. Sedgwick on Damages, 82, and cases cited; 2 Gr. Ev., §§ 252-256, and cases cited. But an examination of the numerous cases where this matter has been carefully and learnedly discussed, shows that the intrinsic difficulties of the subject are not removed, although they may be aided, ]by the application of such rules. Whether the extent, degree, and intimacy of causation are sufficient to bring the injurious consequences of an act within the circle of those wrongs for which the law supplies a remedy still remains the great question to be determined in each case upon its indi\adual facts. That the subject is one beset with difficulties is conspicuously shown by the great number of cases, from Scott v. Shepherd, 2 Wm. Bl. 892 (where Sir William Blackstone was unable to agree wath the court), down to the present time, in which judges of equal learning and ability have differed as to the application of rules by which all admit they are to be governed. The recent case of Brand v. Hammersmith & City Railway Co., L. R. 1 Q. B. 130, well illustrates this remark, although the construc- tion of a statute was there involved. It was held by the court of queen's bench (Mellor and Lush, JJ., delivering opinions), that the owner of a house, none of whose lands have l)een taken for the pur- poses of a railway, cannot, under certain statutes, recover compensa- tion in respect of injury to the house — depreciating its value — caused by xdbration, smoke, and noise in running locomotives with trains in the ordinary manner after the construction of the railway. Upon error to the exchequer chamber this decision of the queen's bench was reversed by Bramwell, B., Keating, and Montague Smith, J J., Channel, B., dissenting. Sir WiUiam Earle, while chief justice of the 168 OILMAN V. NOYES. [CHAP. III. common pleas, had also prepared an opinion sustaining the judgment of the queen's bench, which was not delivered because the formal judgment of the court was delayed till after his resignation. L. R. 2 Q. B. 223, note p. 246. The cause was then carried, upon error, to the House of Lords, and the judges were called in. Of the judges who returned answers, five were in favor of affirming the judgment of the exchequer chamber, \'iz., Willes, Keating, and Lush, JJ., and Bramwell and Piggott, BE.; while Mr. Justice Blackburn delivered a strong opinion" the other way. In the House of Lords, Lord Chelmsford and Lord Colonsay were for reversing the judgment of the exchequer chamber, while the Lord Chancellor was for affirming it. So that, of all the judges and law lords who examined the question (including Sir William Earle), six were of the opinion that the damages could not be recovered, and seven of a contrary opinion; while Lush, J., changed his mind between the hear- ing in the queen's bench and that before the House of Lords, and de- livered an opinion the other way. The case was finally decided against the opinions of a majority of the judges who considered it. The question is, whether courts can relieve themselves from trouble- some inquiries of this description by handing them over to the jury for determination. I am not now prepared to admit that they can. In this case, as we have seen, the verdict settles that the defendant left the bars down, that the sheep escaped in consequence, and that they would not have been killed but for their escape. Clearly, no dis- puted fact is left unsettled. The only question left open is, whether the chimage is within or without the line drawn by the law as the boundary between those injuries for which the law compels compensation to be made and those for which it does not. It is the law that furnishes remedies. Whether any act or default amounts to a legal \\Tong and injury for which compensation may be recovered depends upon the law, and is to be determined by an application of rules either furnished by the legislature in the form of statutes, or found existing in the com- mon law. If the law takes no cognizance of an act, furnishes no remedy for its injurious results, then there is no remedy; and though it may be wrong in a sentimental or moral point of view, the sufferer can have no recompense. And I cannot see what difference it makes in this respect whether the rule is established by a statute, or comes from the common law. That A can recover damages against B for an assault and battery committed upon him by the latter, depends just as much upon a rule of positive law, in this State, as that he may recover against C, who has unlawfully furnished liquor to B, who, in a state of intoxi- cation produced by the liquor, makes the assault. One is a pro- vision of the common law; the other, of a statute. When the court of South Carolina held that where a person, against the hiw, furnished a slave with intoxicating liquor, by which he became drunk and lay out all night, and died in consequence, the owner of the slave could recover SECT. III.] GILMAN V. NOTES. 169 his value against the person who furnished the hquor (Berkley v. Har- rison, cited in Sedgwick on Damages, 89), they were declaring and apply- ing a rule of law as much as though that remedy had been given by a statute similar to ours. So it is in the great mass of cases with which the books are filled: the question as to remoteness is determined by the court, and the rule administered as a rule of law. See cases cited in Seflgwick on Damages, ch. Ill, passim. A large number of English and American cases might be added, were any citation of authorities necessary. In Hobbs v. The London & S. W. Railway Co., already referred to, the plaintiff, with his wife and two children, took tickets on the defendants' railway from Wimbledon to Hampton Court, by the midnight train. They got into the train, but it did not go to Hampton Court, but went along the other branch to Esher, where the party were compelled to get out. It being so late at night, the plaintiff was unable to get a conveyance or accommodation at an inn; and the party walked to the plaintiff's house, a distance of about five miles, where they arrived about three in the morning. It was a drizzling night, and the wife caught cold and was laid up for some time, being unable to assist her husband in his business as before, and expenses were in- curred for medical attendance. The jury gave £28 damages — \'iz., £8 for the inconvenience suffered by ha\ing to walk home, and £20 for the wife's illness and its consequences. The court held the £20 too remote. Blackburn, J., after stating the rule substantially as given by the chief justice, says : " For my own part, I do not feel that I can go further than that. It is a vague rule, and, as Bramwell, B., said, it is something like haAang to draw a line between night and day: there is a great duration of twilight when it is neither night nor day." And further on : "I do not think it is anyone's fault that it cannot be put more definitely. I think it must be left as vague as ever as to where the line must be drawn — but I think, in each case, the court must say whether it is on the one side or the other; and I do not think that the question of remoteness ought ever to be left to a jury. That would be, in effect, to say that there shall be no such rule as to damages being too remote; and it would be highly dangerous if it was to be left gen- erally to the jury to say whether the damage was too remote or not." Of course, all matters of fact, with respect to the causative relation that exists betw^een the act complained of and the injurious conse- quences for which damages are sought, must be found by the jury; and so, in one sense, it may be said that the question of remoteness is for the jury, under proper instructions by the court; but my doubt is, whether proper instructions by the court should not contain specific direction as to whether any given fact of injury, if found proved, would or would not, with respect to the alleged cause, occupy the position of remoteness beyond the actionable degree. In the present case, if all the facts found by the jury had been well 170 GILMAN V. NO YES. [CHAP. III. pleaded in the declaration, and there were a demurrer, would it not be the duty of the court to say whether the action could be maintained? There are a few American cases which seem to give countenance to the \aew upon which this case has been decided by the court. Fair- banks V. Kerr, 70 Pa. St. 86; Saxton v. Bacon, 31 Vt. 540; Fent v. Toledo, Peoria & Warsaw Railway Co., 59 111. 349, are, perhaps, to be so regarded. Should it be said that the question, whether a given consequence is one which might fairly be anticipated by one knowing the facts, is in its nature a question of fact, it must at the same time be admitted that it is a fact which lies rather in the region of conjecture than of e\'idence and must be determined by an appeal to the experience and knowledge of human nature, and the natural sequence of cause and effect possessed by him who is to decide it, rather than by weighing testimony and bal- ancing proofs, while it is at the same time pure matter of law whether a given act is prohibited, and pure matter of law and construction whether a remedy is given by the law, written or unwritten, for an injury sustained in consequence of such act. But, however the Ameri- can cases referred to are to be understood, it seems to me the great weight of authority is against the conclusion of the court; for every case, where the simple question of remoteness has been determined by the court, and the rule applied as a rule of law, would seem to be a direct authority the other way. Those cases are too numerous and too familiar to need citation. The charge of the court was in accordance with this \aew. The jury were required to find whether the act of the defendant in leaving the bars down was an event without which the loss would not have occurred; and then the court undertook to apply a rule of law by saying that, if that particular relation of cause and effect did exist, the consequence was so near, so direct, and followed so naturally from the cause, that it must be regarded as a legal consequence for which the defend- ant should be held to make reparation in damages. I am not prepared to say that this was error. As the case is disposed of upon different grounds, it is unnecessary to consider whether the holding of the court upon this question of remote- ness was right or not. A few cases may, however, be referred to, which bear more or less directly upon that question, as well as the main question I have l)een considering. In Powell v. Salisbury, 2 Y. & J. 391, the plaintiff declared in case against the defendant, for not repair- ing his fences, per quod the plaintiff's horses escaped into the de- fendant's close, and were there killed by the falling of a haystock: held, that the damage was not too remote, and that the action was maintainable. In I^ee v. Riley, 18 C. B. (N. S.) 722, the defendant's mare strayed into a field belonging to the plaintiff', through the defect of a fence which the defendant was bound to repair, and kicked the plaintiff's horse: held, that the defendant was responsible for his ,«ECT. III.] , OILMAN I'. NOYES. 171 mare's trespass, and that the damage was not too remote. In Law- rence V. Jenkins, L. R. 8 Q. B. 274, the plaintiff's cows strayed upon the defendant's close through a gap in the di\'ision fence, made by the carelessness of the defendant's servants in felling a tree upon it, and there fed on the leaves of a yew tree, and died in consequence: held, that the damage was not too remote, and that the defendant was liable to the plaintiff for the loss of the cows. In Gate v. Gate, 50 N. H. 144, a question very similar to this was left undecided. But Bellows, G. J., says: "Upon a careful consideration of the cases, we think there is some preponderance of authority in favor of the position that, in a case like this, a party is in some form of action responsible for the con- sequences of his wTongful act, when they are distinctly traceable to that act, although such consequences may be both remote and acciden- tal." In Da\as v. Garrett, 6 Bing. 716, the defendant contracted to carry in his barge the plaintiff's lime, and the master of the barge devi- ated unnecessarily from the usual course, and during the deviation a tempest wetted the lime, ^nd, the barge taking fire, the whole was lost. The defendant was held liable for the lime, the cause of the loss being sufficiently proximate. The court say in their opinion, delivered by Tindal, G. J.: "We think the real answer to the objection [that of re- moteness] is, that no wrongdoer can be allowed to apportion or qualify his own wrong." But in Greenland v. Ghaplin, 5 Exch. (W. H. & G.) 243, Pollock, G. B., says: "I am desirous that it may be understood that I entertain considerable doubt whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief whicji could by no possibility have been foreseen, and which no reasonable person would have anticipated." Upon the other questions in the case I agree with my brethren, for the reasons given by them. According to the \'iews of a majority of the court, there was A new trial granted. 172 DERRY V. FLITNER. [CHAP. III. DERRY V. FLITNER. SuPREMft Judicial Court of Massachusetts, 1875. [Reported 118 Mass. 131.] Morton, J. The plaintiffs were engaged in building a sea wall for the Boston Gas Light Company, around and in front of their wharf at Commercial Point. There was evidence tending to show that the Gas Light Company had given to the plaintiffs the exclusive right to use the wall to lay their vessels at as a place of safety in case of storms. The judge, who tried the case without a jury, has found that the plaintiffs had such exclusive right, and it is not our province to re- vise his findings upon any questions of fact. The defendant Dutch, therefore, had no right to use the wall to the exclusion of the plaintiffs' vessels, and having done so, and having refused to remove his vessel when requested, he is guilty of a violation of the plaintiffs' rights, for which they may recover, in this action of tort, whatever damages they sustained by reason of the tortious acts of the defendant. The ruling of the Superior Court to this effect was correct. The defendant contended, and asked the court to rule, "that the damage alleged and proved is too remote from the act complained of, and is not the proximate consequence of the same sufficiently in law to render the defendants or any of them liable therefor." The facts bearing upon this question are as follows : At the time of the accident, the plaintiffs had several vessels engaged in bringing and laying stone for the construction of the sea wall. Most of the wall had been built only up to low water mark, but the plaintiffs, in the be- ginning of the work, had built about two hundred feet of the wall to a height of thirteen feet above low water mark, for the purpose of furnishing a safer place to lay their vessels at in case of easterly winds or heavy seas. They could lay two of their vessels behind this high part of the wall. On the night of the accident this part of the wall was wholly occupied by the defendant's schooner, so that there was no room for any other vessel. The plaintiffs had five vessels at the sea wall. About five o'clock it began to blow strongly from the eastward; the storm increased during the night, and about eleven o'clock two f SECT. III.] DERRY l\ FLITNER. 173 of the plaintiffs' vessels were sunk. The court found as a fact that the storm was such as is not uncommon in this climate. The defendant contends that the injury to the plaintiffs was the result of the storm solely, and that he is not liable for it, although his exclusion of the plaintiffs' vessels from a place of safety behind the wall was tortious. The cases upon this subject are numerous. The rule is well settled and is constantly applied in this Commonwealth, that one who commits a tortious act is liable for any injury which is the natural and probable consequence of his misconduct. He is liable not only for those injuries which are caused directly and immediately by his act, but also for such consequential injuries as, according to the common experience of men, are likely to result from his act. And he is not exonerated from liability by the fact that intervening events or agencies contribute to the injury. The true inquiry is whether the injury sustained was such as, according to common experience and the usual course of events, might reasonably be anticipated. A few of the more recent cases are cited. Hoadley v. Northern Transporta- tion Co., 115 Mass. 304; Metallic Compression Casting Co. v. Fitch- burg Railroad, 109 Mass. 277; Salisbury v. Herchenroder, 106 Mass. 458; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64; Carter V. Towne, 98 Mass. 567; McDonald v. Snelling, 14 Allen, 290. Applying these principles to the case at bar, we are of opinion that the injury to the plaintiffs' vessels by the storm was an injury which was reasonably to be apprehended as a consequence of their exclusion from the place of safety furnished by the sea wall. The wall was built for protection against storms. It is found as a fact that the storm which arose was not an uncommon one in this climate.' It was reasonably to be anticipated that such a storm might arise, and that vessels exposed to it would be in danger of injury. The wrongful act of the defendant, in taking and retaining exclusive possession of this place of safety, exposed the plaintiffs' vessels to the dangers of the storm, and the injury which they sustained was the natural and prob- able consequence of this wrongful act. Within the rule above stated, the defendant is liable for such injury. The defendant now contends that, as the plaintiffs had four vessels which they were accustomed to lay at the place occupied by his schooner, it was not and cannot be shown that the two vessels which were sunk would have occupied the place if his schooner had not been there. This presents a question of fact and not of law\ It was a fact capable of proof with such reasonable certainty as the law requires, that the two vessels sunk would have been placed there for safety. The presiding judge has found this fact in favor of the plaintiffs. There is some e\'idence reported in the bill of exceptions tending to prove tliis fact, and it does not appear that all the e\-idence is reported. We cannot say as matter of law that the finding was erroneous. The same considerations dispose of the only other point taken by 174 JACKSON V. WISCONSIN TELEPHONE CO. [CHAP. III. the defendant, \iz., that it was not proved that the two vessels sunk would have been entirely safe if they had occupied the place behind the sea wall. This is a question of fact upon which there was some e\idence, and we cannot revise the finding of the court upon it.^ Exceptions overruled. JACKSON V. WISCONSIN TELEPHONE CO. Supreme Court of Wisconsin, 1894. [Reported 88 Wis. 243.] Appeal from the Circuit Court for Chippewa County. This action is brought to recover damages for a barn and its con- tents, burned, as plaintiff claims, by reason of defendant's negligence. Near the city of P]au Claire there is a plateau about eighty feet above the level of the surrounding country. In August, 1889, two large frame buildings, about 325 feet distant from each other, stood upon this, plateau, one being a county fair building known as Floral Hall, and the other being the barn of the plaintiff. These buildings were about the same height, and upon the top or ridge of each there stood a flagpole or mast twenty to thirty feet in height. Prior to the year 1888 the de- fendant had constructed a telephone line from the highway running past the fair grounds. In September, 1888, the defendant placed a telephone in F'loral Hall, and connected it with No. 12 wire with its telephone line on the highway. This connecting wire ran from the highway first to the flagpole upon plaintift's barn, and was there tied to the pole; from thence it ran directly to Floral Hall. There was a dispute as to the place where this wire was fastened to Floral Hall, the plain- tiff's witnesses testifying that it was fastened directly to the flag- staff upon Floral Hall, a foot or so above the roof, while the defendant's witnesses claim that it was attached to nails on the side of the building. The plaintiff gave no permission to attach the wire to his barn, and testified that he had no knowledge that it was so attached. A ground wire from the telephone in the interior of Floral Hall ran up to the flagstaff, and thence a distance of about 376 feet to the ground, where ' it was attached to an iron water pipp. Some time in the fall of 1888 the defendant took out the telephone from Floral Hall, together with the insulated wire in the interior of the building. The ground wire was left intact, and so was the wire from Floral Hall to the barn. The wire from the highway to Jackson's barn was taken down, but it was claimed by the plaintift's witnesses that a considerable piece of said wire at the barn end thereof was left resting upon the roof of the barn. On the night of the 20th day of August, 1889, there was considerable rain. At about 4 o'clock in the morning there was a flash of lightning, 1 See (iran.i \'alley Irr. Co. v. Pitzer, 14 Colo. App. 123, 59 Pac. 420; Smith v. Faxon, 1.5(5 Mass. 589, 31 X. E. 687; Bonner ». Wingate, 78 Tex. -333, 14 S. W. 790. — Ed. SECT. III.] JACKSON T. WISCONSIN TELEPHONE CO. 175 which was described by the witnesses as a bhnding flash, and which was thought by them to have descended upon F'loral Hall. In a few minutes the roof of plaintiff's barn was in flames, and the barn and its contents were destroyed. Two men were sleeping in a shed or build- ing upon the fair ground, and they immediately went to the barn, and testify that the flagpole upon Floral Hall was completely shattered, while the flagpole upon the barn was untouched. The plaintiff's claim is that the lightning struck Floral Hall, and was conducted by the wire to plaintiff's bam, and set it on fire, and that the defendant was negligent in lea\'ing the wire thus attached to the barn. Much ex- pert evidence was adduced on both sides as to the probability of light- ning passing over such a wire and destroying the barn. A motion for non-suit was overruled, as was also a motion to direct a verdict for defendant. The jury returned a special verdict, finding: First, that the defendant connected the plaintiff's barn with Floral Hall by means of a telephone wire attached to the flagstaff of the barn and to the flagstaff on Floral Hall, without any intermediate attachment; second, that defendant left the wire so located on the plaintiff's barn that a portion of the same rested on the roof; third, that the barn was thereby subjected to danger of being destroyed by fire caused by lightning electricity passing over such w^re from Floral Hall to the barn; fourth, that the fire was caused by lightning electricity so passing over said wire; fifth, that in so leav- ing the barn connected with Floral Hall the defendant's servants were guilty of want of ordinary care; sixth, that such want of ordinary care was the proximate cause of fire; seventh, that this result was one which a person reasonably well skilled in the defendant's business might reasonably have expected would probably occur; eighth, that the plain- tiff did not give defendant permission to attach the wire to his barn; ninth, that plaintiff did not know, before the fire, that his barn was connected wath Floral Hall by the wire; tenth, that he did not know of the danger before the fire; eleventh, that the plaintiff's damages were S9,258. From judgment for the plaintiff upon this verdict the de- fendant appeals. WiNSLOW, J. It was strenuously and ably argued by the appel- lant's counsel that the evidence did not show that the negligent act of defendant was the proximate cause of the burning of plaintiff's barn. The rule is well settled in this state that, in order to render a negligent act the proximate cause of an injury, it must appear "that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." Atkinson v. Goodrich Transp. Co. 60 Wis. 141, 156; MarN-in v. C, M. & St. P. R. Co. 79 Wis. 140. The jury found all the elements necessary to constitute the negligent act of the defendant the proximate cause of the burning of the barn within this rule, and the c^uestion is whether the evidence justifies such 176 JACKSON r. WISCONSIN TELEPHONE CO. [CHAP. III. finding. It is said that the striking of a building by Hghtning is a very infrequent occurrence, and that it could not be reasonably anticipated by any one. It is true that the number of buildings which are struck by lightning, as compared with the whole number of buildings in any given locality, is very small; but this fact by no means seems to us to be the final or controling test of the question of probability. In this case there was a building situated upon a high plateau from eighty to ninety feet above the level of the surrounding country, with a flagpole upon the roof about twenty-five feet in height. Now, there are some facts of common knowledge known to every reasonable per- son who has passed the age of childhood. Among these facts are that in this latitude there are at certain seasons of the year frequent and violent thunderstorms; that at such times the clouds are heavily charged with electricity, which constantly finds its way to the earth iri what we call strokes of lightning; that these lightning strokes, in the great majority of cases, strike prominent objects, such as trees, poles, and high buildings, and follow them to the ground; that fire is fre- quently the result of such strokes. These facts are well known to all persons, and no proof of them by expert e\'idence is necessary. Can we say, as matter of law, in \aew of these well-knowm facts, that it was entirely improbable that a building situated, as Floral Hall was, upon the highest ground in the vicinity, with a flagpole upon it, should be struck by a discharge of lightning, simply because many buildings in such situations escape the stroke for years? We think not.^ By the court.— Judgment affirmed.'^ Newman, J. The cause of damages is proximate only when it might reasonably have been expected by a man of ordinary intelli- gence and prudence that such damages would result from that cause. Atkinson v. Goodrich Transp. Co., 60 Wis. 141. The damages, as a consequence of the negligent act or omission, must be both natural and probable. Barton v. Pepin Co. Agr. Society, 83 Wis. 19. It cannot be said of any particular building that it is probable that it will be struck by lightning. The chances are very largely against it. It could not have been foreseen as likely to happen that either Floral Hall or the plaintift's barn would be struck by lightning. That might be, in the course of nature, but could not be anticipated as probable. The neg- lect of the defendant to remove the wire did not increase the danger or probability that either building would be struck. At most, it only rendered it possible that, in case either was struck, fire might be communicated to the other. It could not be the cause of either build- ing being struck. It was a condition, rather than the cause, of the dam- ages. If a cause at all, it was a remote cause. PiNNEY, J. I concur in the foregoing opinion by Mr. Justice Newman. 1 Part of theopinion is omitted. — Ed. 2 See Beaming v. South Bend Elec. Co., 45 Ind. .^pp. 261, 90 N. E. 786; San Marco.s E. L. ik P. Co. v. Compton, 48 Tex. Civ. App. 586, 107 S. W. 1151. — Ed. SECT. III.] BURK V. CRE.OIERY PACKAGE MANUFACTURING CO. 177 BURK V. CREAMERY PACKAGE MANUFACTURING CO. Supreme Court of Iowa, 1905. [Reported 126 la. 730.] Deemer, J. Defendant is a corporation engaged in the manufacture and sale of creamery supplies, fixtures, etc., at the city of Waterloo. It keeps for sale, and sells, sulphuric acid, which is extensively used in all creameries. On or about January 26, 1903, it sold at retail to one Riedel a one-gallon jug of sulphuric acid, but failed to label the same as required by statute, or to indicate in any manner upon the pack- age that it contained a deadly poison. Riedel owned and operated what was known as the "Crane Creek Creamery," in a rural commu- nity in Black Hawk County, and he took the jug containing the acid to his said creamery, and placed it upon a shelf in one of the rooms thereof. It was the custom at this creamery to put buttermilk in jugs similar to the one in which the acid was placed, for the use of customers and employees of the creamery, who were invited and permitted to drink the milk placed therein. Harry O. Burk, plaintiff's minor son, who was then seventeen years of age, was lawfully at the creamery on the 9th day of February, 1903, and, seeing the jug containing the acid, asked an employee at the creamery if he could have a drink of buttermilk. The employee, not knowing that the boy had his eye on the sulphuric acid jug, but supposing that he was refen'ing to another close at hand, which did contain buttermilk, told him that he could, and invited him to drink of the milk. Burk went to the jug containing the acid, and, supposing that it contained buttermilk, drank therefrom, and, as a result thereof, died the next day. The acid was taken about two o'clock in the afternoon of a bright day, and the room in which the jug was kept was well lighted. Burk's eyesight was good and he could easily have seen a label had one been placed upon the jug. Cream- eries universally use sulphuric acid for the purpose of testing milk and cream for butter fat, and this the defendant company well knew. The jug containing the acid was a little larger than the buttermilk jug, but both were one-gallon white jugs, and there was nothing in general appearances to distinguish one from the other. Defendant knew that it was the custom of all creameries to provide buttermilk for people to drink, and that patrons thereof carried the same away for use at their homes. Code, § 4976, provides, in substance, that if any person deliver to another any poisonous liquor or substance without ha\ing the word "poison," and the true name thereof, written or printed upon a label attached to or affixed upon the vial, box, or parcel containing the same, he shall be guilty of a misdemeanor. And §§ 2588 and 2593 178 BURK V. CREAMERY PACKAGE MANUFACTURING CO. [cHAP. III. also prohibit the sale of poisons, except that the same be labeled as therein required. Violation of such statutes is universally held to be negligent. Ives v. Weldon, 114 Iowa, 476, and cases cited. But defendant contends that this negligence was not the proximate cause of the injury to the plaintiff's son. It was, of course, incum- bent upon the plaintiff to show, not only a violation of one or the other of these sections of the Code, but also that such \aolation was the proximate cause of the injury and death of his son. That matter was submitted to the jury under proper instructions, and it found for the plaintiff on this issue. But it is said that Riedel, the owner of the creamery, was also guilty of negligence in placing the jug in the creamery at the place he did, that this negligence was the approximate cause of the injury to plaintiff's son, and that the defendant had no reason to apprehend or anticipate any negligence on the part of the purchaser of the acid. As said in the Ives Case, supra, these statutes were made for the protection of all persons in the State, and to warn all that the sub- stance they are handling is dangerous, and that its use requires con- stant care. Defendant, as we have said, knew of the custom which prevailed among creameries, knew that buttermilk is kept there for the use of patrons, and that sulphuric acid is used in all creameries. It knew, or should have known, that anyone lawfully about the creamery was likely to pick up tliis jug, and to use the same for any legitimate pur- pose. It owed a duty to anyone who might rightfully handle or use the jug in the ordinary, usual, or customary manner. This jug had to be kept about the creamery, and there was no statutory or other ob- ligation on the part of the creamery owner to keep it under lock and key. Of course, if he knew that it was not labeled, or by the use of ordinary care should have known of that fact, he would be rec^uired, on account of the dangerous character of the acid, to use due care to protect all persons who might rightfully come in contact therewith. But failure on the part of the purchaser to do tliis would not neces- sarily excuse the vender for his violation of law. But defendant insists that it had no reason to anticipate the wTong- ful or negligent acts of the manager of the creamery, and that it is for that reason not liable for the consequences thereof. While there are some loose expressions in the books to the effect that one is not liable for negligence unless the results of his acts might reasonably have been foreseen by him, the true doctrine, as we understand it, is that it is not necessary to a defendant's liability that the consequences of his negli- gence should have been foreseen. It is sufficient if the injuries are the natural, though not the necessary or ine\'itable, result of the WTong; such injuries as are likely, under ordinary circumstances, to ensue from the act or omission in question. The test, after all, is, would ordinary prudence have suggested to the person sought to be charged with negligence that his act or omission would probably result in in- SECT. III.] BURK V. CREAJVIEIIY PACKAGE MANUFACTURING CO. 179 jury to someone? The particular result need not be such as that it should have been foreseen. Palmer v. R. R. Co., 124 Iowa, 424; Hazzard v. City, 79 Iowa, 106; Doyle v. R. R. Co., 77 Iowa, 607; Osborne v. Van Dyke, 113 Iowa, 557. In applying this doctrine to cases where there is an interv^ening agency, it is generally held that the in- terv^ening act of an independent voluntary agent does not arrest cau- sation, nor relieve the person doing the first wrong from the consequen- ces thereof, if such intervening act was one which would ordinarily be expected to flow from the act of the first wrongdoer. Lane v. Atlantic, 111 Mass. 136. \Yhere several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause unless without its oper- ation the accident woiild not have happened. These rules have full support in our cases. Walrod v. Webster Co., 110 Iowa, 349; Harvey X. Clarinda, 111 Iowa, 528; Buehner v. Creamery Co., 124 Iowa, 445 Palmer v. R. R. Co., 124 Iowa, 424; Gould v. Schermer, 101 Iowa, 582 Liming v. R. R. Co., 81 Iowa, 246; Schnee v. City, 122 Iowa, 459 Ives V. Weldon, supra. Referring now to the facts. The jury was fully justified in finding that but for defendant's act or omission the accident in question would not have happened. Under the testimony, the injury to plaintiff's son might well have been found to be the direct and proximate result of defendant's failure to label the jug containing the poison. Had it been labeled, the accident would not have happened, even though the managers of the creamery may have been negligent in placing it where they did. Moreover, had it been properly labeled, the jury might well have concluded that there would have been no negligence on the part of the creamery managers in placing it where they did. The direction to plaintiff's son to drink out of a jug w^as not of itself negligence. The person giving the permission did not know that the boy had in mind the jug containing the acid, and there is nothing to show that this person e\en knew there was a jug there containing acid. It was a question for the jury, under proper instructions, to determine whether or not defendant's negligence was the proximate cause of the accident. See cases hitherto cited. The instructions given by the trial couit on that subject were correct, and with the finding of the jury thereunder we are not disposed to interfere. The defendant might reasonably have foreseen that its act or omis- sion was likely to cause injury to someone who might rightfully handle the jug, and it is not enough for it to say that it could not reasonaljly have foreseen the exact mishap. None of the cases cited and relied upon by appellant announce a contrary doctrine, although in some of them expressions are used which, in a measure at least, give color to its propositions. With reference to these, and to all other cases ISO BELL V. ROCHEFORD. [CHAP. III. bearing upon the subject, it may be said that no one has as yet given a very satisfactory definition of proximate cause. Indeed, one must of necessity look to practical distinctions on this subject, rather than to merely academic or theoretical ones, and, after all is said, each case must be decided largely on the special facts belonging to it. At most, the act of Riedel was a concurring and cooperating fault, and not in itself the producing cause of the injury.' The principal point in the case is the doctrine of proximate cause as applied to the facts disclosed by the record. We think there was suffi- cient testimony to take the case to the jury on this proposition. There is no error in the record, and the judgment is affirmed. BELL V. ROCHEFORD. Supreme Court of Nebraska, 1907. [Reported 78 Neb. 310.] The defendants were independent contractors engaged in the erec- tion of a power house for the Omaha Street Railway Company, and were, at the time of the accident, putting in a concrete floor in the second story. That portion of the floor at the point where the acci- dent occurred was above a room 9 by 40 feet, with a 10 foot ceiling. To support the concrete steel I beams were placed crosswise of the room at a distance of 8 or 9 feet apart. They rested at either end upon a concrete wall, in which openings were left for that purpose. The steel beams were from 4 to 6 inches wide at the base and top, 10 inches deep, and weighed 150 pounds. The pockets into which the ends were placed were about 10 inches wide. For the purpose of holding the concrete in position until it hardened, wooden forms were built so that they might be removed after the concrete became self-supporting. These forms were constructed by placing a 2-by-l 2-inch plank length- wise under each I beam, and were held in place by means of 4-by-4 inch pieces extending from the lower floor to the under side of the plank, lea\nng a margin of from 3 to 4 inches on either side of the steel. The space between two I beams was called a section. Other planks were then placed crosswise of the section, the ends resting upon the edge of the 2-by-12-inch pieces. Wooley called to the plaintiff to come and assist him in putting this last plank in place. Wooley was at the west side of the form and the plaintiff at the east. The plank selected was a little wade for the opening, and in order to crowd it into place one edge of this plank and the edge of an adjoining plank were raised, placed together in a V shape, and the plaintiff, in a stooping position, was attempting to ' The discussion of other alleged errors is omitted. — Ed. SECT, III.] BELL V. ROCHEFORD. 181 crowd it into place. His weight and the pressure caused the 2-by-12 on the sid^ where he was at work to tip, the steel beam turned over, and the form of that entire section fell with the plaintiff into the base- ment below, resulting in the injury on account of which damages are claimed.^ Calkins, C. This cause was submitted upon an oral argument of a motion for a rehearing. . . . The amended petition described the construction of the forms, set forth the particular facts which it was claimed made the structure insecure, and alleged that the plaintiff, in obedience to the direction of the defendant's foreman, went upon the structure, and, while engaged in his work thereon, was by the falling of the structure precipitated to the floor below, thereby suffering the injuries complained of. If we understand the contention of the defend- ant's counsel, it is that, since the petition does not state that the weight of the plaintiff and his efforts to crowd the plank in place caused the collapse of the section, it fails to allege the proximate cause of the acci- dent. The argument of the defendant proceeds upon the theory that placing the weight of the plaintiff upon the structure, and his effort to put the plank in place, was the proximate cause of the accident. It is the same as if, in a case where A, owing a duty to B to construct a bridge in a safe and secure manner, negligently leaves it unsafe and in- secure, and B, reK-ing upon its apparently safe condition, or, as in this case, upon the express direction of A, goes upon it and it falls, we should say that the proximate cause of the catastrophe was the weight of B, and not the negligence of A. Such is not the law. The proximate cause is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in time to the injury. Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469; Aetna Fire Ins. Co. v. Boon, 95 U. S. 117. The inquiry must be, says Mr. Justice Strong, "whether there was any intermechate cause, disconnected wdth the primary fault and self-operating, which pro- duced the injury." It is clear that the weight of the plaintiff, and his efforts to place the plank, was not such intermediate cause, disconnected from the primary fault and self-operating, and was not, therefore, in the meaning of the term as applied in the law of negligence, the proxi- mate cause of the injury, and it was neither necessary nor proper to plead it as such in the petition. We are therefore of the opinion that the motion for a rehearing should be overruled, and we so recommend. Jackson, C, concurs. By the court: For the reasons stated in the foregoing opinion, the motion for a rehearing is r» ? j ■> * (Jverrulea/ ^ This statement of the facts is taken from the report of the original hearing, 78 Neb. 304.— Ed. 2 See also Commonwealth Electric Co. v. Rose, 214 111. 545, 73 N. E. 780; Knapp V. Sioux City & P. Ry., 65 Iowa, 91, 21 N. W. 198; Buckner v. Stock Yards H. & M. Co., 221 Mo. 700, 120 S. W. 766; Lawence v. Heidhreder Ice Co., 119 IMo. App. 316, 93 S. W. 897; Ray v. Pecos & N. T. Ry., 40 Tex. Civ. App. 99, 88 S. W. 466.— Ed. 182 REGINA V. MITCHELL. [cHAP. III. REGINA V. MITCHELL. Crown Case Kkskrved. 1840. [Rrjiurted •> Mouili/, 120.] The prisoner Catlieriue Michael was tried ])efore Mr. Barou Aider- son at the Central Criminal Court in April. 1.^40 (Mr. Justice Littledale being present), for the wilful murder of George Michael, an infai}t of the age of nine months, by administering poison. It appeared in evidence that the prisoner, on the 27th da}^ of March last, delivered to one Sarah Stephens, with wliom the child was at nurse, a quantity of laudanum, about an ounce, telling the said Sarah Stephens that it was proper medicine for the child to take, and direct- ing her to administer to the child every night a teaspoonful thereof ; that such a quantity as a teaspoonful was quite sufficient to kill a child ; and that the prisoner's intention, as shown by the finding of the jury, in so delivering the laudanum and giving such directions as aforesaid, was to kill the child. That Sarah Stephens took home with her the laudanum, and thinking the child did not require medicine had no intention of administering it. She, however, not intending to give it at all, left it on the mantelpiece of her room, which was in a different house from where the prisoner resided, she, the prisoner, then being a wet nurse to a lady ; and some days afterwards, that is, on the 31st of March, a little boy of the said Sarah Stephens, of the age of five years, during the accidental al)sence of Sarah Stephens, who had gone from home for some hours, removed the laudanum from its place and administered to the prisoner's child a much larger dose of it than a teaspoonful, and the child died in con- sequence. The jury were directed that if the prisoner delivered to Sarah Stephens the laudanum, with intent that she should administer it to the child and thereby produce its death, the quantity so directed to be administered being sufficient to cause death ; and that if (the prisoner's original in- tention still continuing) the laudanum was afterwards administered by an unconscious agent, the death of the child under such circumstances was murder on the part of the pi-isoner. They were directed that if the teaspoonful of laudanum was sufficient to produce death, the administration by the little boy of a much larger quantity would make no difference. The jury found the prisoner guilty. The judgment was respited, that the opinion of the judges might be taken whether the facts above stated constituted an administering of the poison by the prisoner to the deceased child. This case was considered by all the judges (except Gurney, B., and Maule, J.), in Piaster term, 1840, and they were unanimously of opinion that the conviction was right. SECT. III.] LANE V. ATLANTIC WORKS. 183 \ LANE V. ATLANTIC WORKS. Supreme Judicial Court of Massachusetts, 1872. [Reported 111 Mass. 136] Tort. The declaration was as follows: "And the plaintiff says that the defendants carelessly left a truck, loaded with iron, in Marion Street, a public highway in Boston, for the space of twenty minutes and more; and the iron on said truck was so carelessly and negligently placed that it would easily fall off; and that the plaintiff was walking in said highway, and was lawfully in said highway, and lawfully using said highway, and in the exercise of due care; and said iron upon said truck was thrown and fell therefrom upon the plaintiff in consequence of the defendant's carelessness, and the plaintiff was severely bruised and crippled," &c. The answer was a general denial of the plaintiff's allegations. At the second trial in the Superior Court, before Devens, J., after the decision reported in 107 Mass. 104, the plaintiff introduced evi- dence that the defendants left a truck with a bar of iron on it standing in front of their works on Marion Street, which was a public highway in Boston; that the iron was not fastened, but would easily roll off the truck; that the plaintiff, then seven years old, and a boy about the same age named James Conners, were walking, between six and seven in the evening, on the side of Marion Street opposite the truck and the defendants' works; that Horace Lane, a boy twelve years old, being near the truck, called to them to come over and see him move it; that the plaintiff and Conners said they would go over and watch him do it ; that they went over accordingly ; that the plaintiff stood near the truck to see the wheels move, as Horace Lane took hold of the tongue of the truck; that Horace Lane moved the tongue somewhat; that the iron rolled off and injured the plaintiff's leg; and that neither the plaintiff nor Conners touched the iron or truck at all. The plaintiff was also allowed to introduce in evidence, against the defendants' objection, an ordinance of the city of Boston prohibiting trucks or vehicles of any kind, whether loaded or unloaded, and whether with or wnthout horses, from stopping in any street more than five min- utes without some proper person to take care of the same, or more than twenty minutes in any case. The defendants introduced exadence t^^nding to show that the iron was fastened securely on the truck, which was drawn from the defend- ants' works into the street at four o'clock in the afternoon; that the boys removed the fastenings; that Horace Lane placed the boys one on each side of the truck; that he turned the tongue of the truck around; that he and Conners then took hold of the iron and rolled it off; that the plaintiff had his hands on the iron or on the truck when the iron 184 LANE V. ATLANTIC WORKS. [cHAP. III. rolled off on to him; and that the boys were engaged in the common enterprise of rolling off the iron and mo^^ng the truck.. There was no e\adence that Horace Lane had any lawful pm-pose or object in mo\4ng the truck, or any right to meddle with it. The defendants requested the judge to give, besides other rulings, the following: "1. Lea\ang the truck in the street, in \dolation of a city ordi- nance, might subject the defendants to a fine, but this violation of the pro\asions of the ordinance would not of itself alone render the defend- ants liable civilly in this suit; but negligence must be shown, and such, and only such, as is averred in the declai^ation. " 2. In order to make the plaintiff a participator or joint actor with Horace Lane, in his conduct in meddling with the truck for an unlawful purpose, it was not necessary for him to have actually taken hold of the tongue, or the iron, or the truck, to help or aid in moving it. It is enough if he joined with him in a common object and purpose volun- tarily, went across the street on his in^^tation for that avowed purpose, and stood by the truck to encourage and aid, by his presence, word or act, the accomplishment of that purpose. "3. While it is true that negligence alone on the part of Horace Lane, which contributed to the injury combining with the defendants' negligence, would not prevent a recovery, unless the plaintiff's negli- gence also concurred as one of the contributory causes also; yet, if the fault of Horace Lane was not negligence, but a voluntary meddling with the truck or iron, for an unlawful purpose, and wholly as a sheer trespass, and this culpable conduct was the direct cause of the injury which would not have happened otherwise, the plaintiff cannot recover." The jiidge did not give the ruling requested, but gave rulings, which, so far as they are now material, were as follows : "The city ordinance is proper to be put in e\ndence and to be con- sidered by the jury upon the question of negligence, although it is not conclusive proof that the defendants were in point of fact negligent in the act of leaxnng the truck there. It is a matter of evidence, to be weighed with all the other e\^dence in the case. " If the sole or the direct cause of the accident was the act of Horace Lane, the defendants are not responsible. If he was the culpable cause of the accident, that is to say, if the accident resulted from the fault of Horace Lane, they are not responsible. But if Horace Lane merely contributed to the accident, and if the accident resulted from the joint negligence of Horace Lane in his conduct in regard to moving the truck and the negligence of the defendants in leavang it there, where it was thus exposed, or lea\'ing it so insecurely fastened that this particular danger might be reasonably apprehended therefrom, then the interme- diate act of Horace Lane will not prevent the plaintiff from recovering, provided he himself was in the exercise of due and reasonable care. If the plaintiff liimself participated in the act of Horace Lane no further SECT. III.] LANE V. ATLANTIC WORKS. 185 than to go there and be a witness to this transaction which Horace Lane proposed to perform, crossing over the street by his in\atation, and witnessing him move this truck, that would not make him such a participator in the wrongful act of Horace Lane as to prevent his recovery, provided he himself was in the exercise of reasonable care. " If, however, he was actually engaged in the wrongful act of Horace Lane, if he was actually engaged in disturbing this truck, and moving the fastenings which had been put upon it in order to prevent it from being disturbed, and was actively participating in the act of Horace Lane, then he cannot recover. But if the act of the plaintiff was lim- ited to crossing the street for the purpose of witnessing the act done by Horace Lane, in answer to his invitation, and no active participa- tion was taken by the plaintiff other than that, it would not prevent his recovery, provided he himself was in the exercise of due and rea- sonable care." At the close of his charge to the jury the judge read the second rul- ing prayed for by the defendants, and said: "If the plaintiff took an active participation in it, as I before instructed you, or went there as a joint actor, for the purpose of encouraging Horace Lane in it, he can- not recover. If he went there attracted by curiosity only, at the invi- tation of the party who was about to move the truck, Horace Lane, then he may recover; provided, you are further satisfied that, in what he did, he was in the exercise of the due and reasonable care that should be expected of a person of his age." The jury returned a verdict for the plaintiff for $6,000, and the de- fendants alleged exceptions. Colt, J. In actions of this description, the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original neghgence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise. Whether in any given case the act charged was negligent, and whether the injury suffered was, within the relation of cause and effect, legally attributable to it, were questions for the jury. They present oftentimes difficult questions of fact, requiring practical knowledge and experience for their settlement, and where there is e\'idence to justify the verdict, it cannot be set aside as matter of law. The only question for the court is, whether the instructions given upon these points stated the true tests of liability. 186 LAXE V. ATLANTIC WORKS. [cHAP. III. Most of the instructions which were requested by the defendants as to their fault, the plaintiff's exercise of due care, and the burden of proof, were given in substance. The defendants now make only three objections : 1. The court was asked to rule that a ^^olation of a city ordinance would not of itself alone render the defendants liable in this suit; but that negligence must be shown, and such negligence as is averred in the declaration. The jury were plainly told on this point, that the negligence charged must be proved, and that a violation of the city ordinance was not conclusive proof of it; that it was a matter of evi- dence to be considered with all the other evidence in the case. This was sufficiently favorable to the defendants. The city ordinance was en- acted for the purpose of rendering the streets more safe and convenient for travelers. In determining whether a particular use of a street was negligent, the jury might properly consider the legitimate uses to which the streets are devoted. Wright v. Maiden & Melrose Rail- road Co., 4 Allen, 283. 2. The rule of law stated to the jury, as to what was necessary to make the pkiintiff a participator with Horace Lane in the unlawful act of meddling with the truck or its fastenings, is not materially differ- ent from the instructions asked. The jury were first told, in substance, that if the plaintiff did no more than go across the street by Horace Lane's inWtation, and Avitness the transaction, he would not be a participator in the wrongful act so as to prevent a recovery; but if he actually moved the truck or its fastenings, or actively participated in the act, he could not recover. At the close of the charge, in connec- tion with the defendants' request on this point, which was read to them, the jury were further told that if the plaintiff went there as a joint actor, for the purpose of encouraging Horace Lane, he could not recover, but might recover if he went attracted by curiosity only and by in- vitation of Horace Lane. The point now made is that these instruc- tions are limited to the purpose for which he crossed the street, and do not meet a case where the plaintiff joined in the mischief after he got there, and was standing by for the purpose of aid and encouragement, ready to help if needed. But the instructions with the defendants' request, taken together, are not ' fairly open to this objection ; the jury could not have been misled as to the true rule, and must ha\'e found that he was a mere spectator. Brown v. Perkins, 1 Allen, 89, 97. Miller V. Shaw, 4 Allen, 500. 3. The last instruction asked was rightly refused. Under the law as laid down by the court the jury must have found the defendants guilty of negligence in doing that from which injury might reasonably have been e.vpected, and from wliich injury resulted; that the plaintiff was in the exercise of due care; that Horace Lane's act was not the sole, direct, or culpable cause of the injury ; that he did not purposely roll the iron upon the plaintiff; and that the plaintiff was not a joint actor SECT. III.] BINFORD l\ JOHNSTON. 187 with liim in the transaction, but only a spectator. This supports the verdict. It is immaterial whether the act of Horace Lane was mere neg- ligence or a voluntary intermeddling. It was an act which the jury have found the defendants ought to have apprehended and pro\dded against. McDonald v. Snelling, 14 Allen, 290, 295. Powell v. Deveney, 3 Cush. 300. Barnes v. Chapin, 4 Allen, 444. Tutein v. Hurley, 98 Mass. 211. Dixon x. Bell, 5 M. & S. 198. Mangan r. Atherton, L. R. 1 Ex. 239. Illidge V. Goodwin, 5 €. & P. 190. Burrows «. March Gas Co., L. R. 5 Ex. 67, 71. Hughes t. Macfie, 2 H. & C. 744. Exceptions overruled. BINFORD V. JOHNSTON. Supreme Coltrt of Indiana, 1882. [Reported 82 Ind. 426.] Elliott, J. The case made by the appellee's complaint, briefly stated, is this: Two sons of appellee, Allen and Todd, aged tweh'e and ten years respectively, bought of the appellant, a dealer in such articles, pistol cartridges loaded with powder and ball. The boys purchased the cartridges for use in a toy pistol, and were instructed by appellant how to make use of them in this pistol ; the appellant knew the dangerous character of the cartridges, knew the hazard of using them as the boys proposed, and that the lads were unfit to be entrusted with articles of such a character; shortly after the sale, the toy pistol, loaded with one of the cartridges, was left by Allen and Todd lying on the floor of their home. It was picked up by their brother Bertie, who was six years of age, and discharged, the ball striking Todd and inflicting a wound from which he died. A man who places in the hands of a child an article of a dangerous character and one likely to cause injury to the child itself or to others, is guilty of an actionable wrong. If a dealer should sell to a child dynamite, or other explosives of a similar character, nobody would doubt that he had committed a wrong for which he should answer, in case injury resulted. So, if a druggist should sell to a child a deadly drug, likely to cause harm to the child or injury to others, he would certainly be liable to an action. The more difficult question is whether the result is so remote from the original wrong as to bring the case within the operation of the maxim causa proxima, et non remota, spectatur. It is not easy to assign limits to this rule, nor to lay down any general test which will enable courts to determine when a case is within or without the rule. It is 188 BINFORD V. JOHNSTON. [CIL^P. III. true that general formulas have been frequently stated, but these have carried us but little, if any, beyond the meaning conveyed by the words of the maxim itself. The fact that some agency intervenes between the original wrong and the injury does not necessarily bring the case within the rule; on the contrary, it is firmly settled that the intervention of a third per- son or of other and new direct causes does not preclude a recovery if the injury was the natural or probable result of the original wTong. Bill- man V. Indianapolis, etc., R. R. Co., 76 Ind. 166 (40 Am. R. 230). This doctrine remounts to the famous case of Scott v. Shepherd, 2 W. Black. 892, commonly known as the " Squib case." The rule goes so far as to hold that the original wrongdoer is responsiVjle, even though the agency of a second wrongdoer intervened. This doctrine is en- forced with great power by Cockburn, C. J., in Clark v. Chambers, 7 Cent. L. J. 11 ; and is approved by the text-WTiters. Cooley Torts, 70; Addison Torts, section 12. Although the act of the lad Bertie intervened between the original wrong and the injury, we cannot deny a recovery if we find that the injury was the natural or probable result of appellant's original wrong. In Henry v. Southern Pacific R. R. Co., 50 Cal. 176, it was said: "A long series of judicial decisions has defined proximate, or immediate and direct damages to be the ordinary and natural results of the negligence ; such as are usual and as, therefore, might have been expected." Lord Ellenborough said in Townsend v. Wathen, 9 East, 277, that "Every man must be taken to contemplate the probable consequences of the Nact he does." In Billman v. Indianapolis, etc., R. R. Co., supra, very many cases are cited declaring and enforcing this doctrine, and we deem it unnecessary to here repeat the citations. Under the rule de- clared in the cases referred to, it is clear that one who sells dangerous explosives to a child, knowing that they are to be used in such a manner as to put in jeopardy the Hves of others, must be taken to contemplate the probable consequences of his WTongful act. It is a probable con- sequence of such a sale as that charged against appellant, that the explosives may be so used by children, among whom it is natural to expect that they will be taken, as to injure the buyers or their associates. A strong illustration of the principle here affirmed is afforded by the case of Dixon v. Bell, 5 M. & S. 198. In that case the defendant sent a child for a loaded gun, desiring that the person who was to deliver it should take out the priming. This was done; but the gun was dis- charged by the imprudent act of the child, the plaintiff injured, and it was held that the defendant was liable. In Lynch v. Nurdin, 1 Q. B. 29, the doctrine of the case cited was approved, and the same judgment has been pronounced upon it by other courts as well as by the text- writers. Carter v. Towne, 98 Mass. 567; ^Yharton Neg. 851; Shearman & Redf. Neg., 3d ed., 596.' ^ The remainder of the opinion is omitted. — Ed. SECT. III.] CHADDOCK V. PLUMMER. 189 CHADDOCK V. PLUMMER. Supreme Court of Michigan, 1891. [Reported 88 Mich. 225.] Morse, J. Plaintiff brought this siiit in the Berrien Circuit Court to recover damages for the loss of liis right eye, which was destroyed by a shot from an air-gun in the hands of a boy named Roscoe Tabor. The Circuit Judge directed a verdict for the defendant. The facts proven are substantially as follows: During the last of July or first of August, 1890, the defendant bought an air-gun, and gave it to his son, Harry Plummer, a lad aged about nine years. Defendant also bought at the same time some shot, such as are used in air-guns. Defendant cautioned his son to be careful in using the gun. The shot were all used in about two days, and some time later defendant bought his son more shot, which were used in half a day. No other shot were bought or furnished by the defendant, or by his order, or wath his knowledge. Mrs. Plummer, the wife of the defendant, bought her son Harry some shot, which he also fired, except four shot, by one of which plaintiff was injured. On the morning of the accident, September 3, 1890, Harry fired the shot bought by his mother, except the four shot, and put the gun in the storm house, which was a part of the dwelling, and then put the four shot on a tablecloth, and went to school. Mr. Plummer was not at home. The Tabor boy came there with some rutabagas, and began looking and traveling about the premises, and found the gun in the storm house, and then asked Mrs. Plummer for some shot, and she handed him the four shot which Harry had left on the table. She directed him to shoot at the hen-coop in the rear of the house. The boy fired one shot at the hen-coop, one at an apple tree, and then he went around to the north side of a new house, which Mr. Plummer was building, to a point about a rod east of the front of the new house, and eight or ten feet north of it. The boy was facing the west, and the street was to the west of him, and the street runs north- west and southeast. He put a grape on a plank, and looked to see if anyone was in the street, and, seeing no one, he held the muzzle of the gun about two and one half feet from the grape, and the gim was pointed down, and fired. The distance west to the street from where the boy was when he shot is from seventy to one hundred feet. ]\Ir. Chaddock at the time the shot was fired was standing in the street, looking at this new house of the defendant. The shot glanced from the board, and struck him in the eye, destro\,ang it. The street was a frequently traveled highway in the village of Benton Harbor, then containing about 3700 inhabitants, and at a point where defendant had long re- 190 CHADDOCK v. PLL'iLMEK. [CIL\.P. III. sided. Defendant's boy Harry was nine years of age when the gun was purchased, and the Tabor boy was ten years old when the shot was fired. The gun was the common make of toy air-gun for children, breaking in the middle for the insertion of the shot, and, when closed again, oper- ating with a spring, compressing the air and expelling the shot. The shot used were "BB," or "double B." Harry was told by his father not to lend the gun to other boys, as they might break it. The Tabor boy lived out in the country, and occasionally visited at defendant's. It does not appear that the defendant knew of the purchase of shot by his wife, or that his boy had used all the shot purchased for him by defendant. The contention of the plaintiff is that the air-gun in question is a dangerous weapon, and that the defendant did not use sufficient care in the keeping of it upon his premises; that, at any rate, the ques- tion whether he did use such care or not should have been submitted to the jury. But, as the facts are, the defendant cannot be held respon- sible for the injury to plaintiff, unless it was negligence, sufficient to support this action, in buying the gun and allowing his son to use it. He cannot be considered negligent in any other respect. He cau- tioned his boy to be careful in its use, and no carelessness of his own son was shown at any time in his use of it. The defendant and his son were neither of them responsible in any way, except owning the gun, for the use of it by the Tabor boy. It was kept inside the house, for the storm door was an inclosure. If it came into the hands of Tabor through the negligence of anyone, it was the negligence of the wife, for which the defendant is not liable. Tliis air-gun may be a dangerous weapon in a certain sense. The shot fired from it will not penetrate clothing, but it will put out the eye of a person, and will kill small birds and some small animals. These guns are in common and everyday use by children; over four hundred of them were sold in one season by a dealer at Benton Harbor. But it is not more dangerous in the hands of children than a bow and arrow and many other toys. It would hardly be good sense to hold that this air- gijn is so ob\aously and intrinsically dangerous that it is negligence to put it in the hands of a child nine years of age, and that such negligence would make the person so putting it in the hands of the child respon- sible for the act of another child, getting possession of it without de- fendant's consent or knowledge. Even if the gun had been left lying on the ground in the yard of the defendant, and the Tabor boy had picked it up outside the house, and used it, the defendant would not have been responsible for the damage done by the boy. An axe is considered a dangerous weapon, but if one leaves an axe by his wood- pile, and a child comes into the yard, picks it up, and injures another Avith it, is the owner of the axe lial)le for damage because he has not put this deadly weapon under lock and key? And if it be granted that this air-gun loaded is a dangerous weapon, SECT. III.] PITTSBURG REDUCTION CO. l\ IIORTOX. 191 as is a gun loaded with powder and ball, would this fact make the de- fendant liable? I think not. Suppose a person, owning a shotgun, should put the same unloaded within the storm house of his door, and a neighbor's boy, 10 years of age, without the knowledge or consent of the owner, should pick up the gun, and oljtain from the wife or some other member of the household a loaded cartridge, and take the gun out and discharge it, accidentally wounding someone, would the owner of the gun be responsible for the damage resulting to the injured person? To so hold him responsible would necessitate the keeping of unloaded firearms under lock and key, with the key in the possession at all times of the owner. This is not a case of lea\ing a torpedo or dynamite where it may be expected that children will find and play with it. An unloaded gun is harmless; a torpedo or dynamite is not, but is dangerous anywhere, and under all circumstances, to those not ac- quainted with the proper method of handling it, and liable to explode even in the hands of those who are expert in using it. In my opinion, it was not negligence per se for the defendant to buy this toy gun, and place it in the hands of his boy nine years of age; and there were too many intervening causes without the act or knowl- ledge of the defendant, between the buying of the gun and the injury, to hold the defendant liable for its use in this case. If his own son had, in any manner, contril)uted to the accident, a different question would arise, upon which I express no opinion. The judgment must be affirmed, with costs. The other justices concurred.^ PITTSBURG REDUCTION CO. v. HORTON. Supreme Court of Arkansas, 1908. [Reported 87 Ark. .576.] This was an action brought by John A. Horton, by his next friend S. A. Horton, against the Pittsburg Reduction Company and C. (\ Brazil, to recover damages for an injury sustained by him caused by the explosion of a dynamite cap in his left hand. The cap which did the damage was picked up by Charlie Copple, a boy about 10 years of age, at the edge of the spur track near the end of the toolhouse of appellant company. The caps were in a tin snuff box and were made of brass or copper. They were very much like small metal cartridges and appeared to be empty except of dirt. The Copple boy picked them up on his way home from school and carried them home. He lived with his parents al)out one-fourth of a mile ^ See also Harris v. Cameron, 81 Wis. 239. — Ed. 192 PITTSBURG REDUCTION CO. V. IIORTON. [cHAP. III. distant. His father was an employee of another company, which had a plant for mining bauxite near that of appellant company. Charlie Copple kept the caps at home for about one week, playing on the floor with them in the presence of his parents. When he would leave them on the floor, his mother said she would pick them up. She said she did not know what they were. She said that Charlie Copple had them there in the house, and that she supposed her husband noticed him with them. The father denied knowing that his boy had the caps until he heard of it after the accident happened. Charlie Copple said that, when not pla;^ang with them, they were left on the clock shelf. About one week after he had found them, Charlie carried them to school and traded them to Jack Horton for some writing paper. Jack Horton was a boy 13 years old. He was in the schoolhouse at the time he was hurt. He said he thought it was a shell of a 22 cartridge that had been shot; that he was picking the dirt out of it with a match when it exploded and tore up his hand. His hand was torn so that it had to be amputated. There is a great deal of testimony relative to the manner by which the caps came on the spur track, where Charlie Copple picked them up, but the \aew we have taken of the case renders it unnecessary to abstract it, except to say that it may be assumed that appellant C. C. Brazil, the general foreman of appellant company, threw them there from the toolhouse thinking they were empty. There was a jury trial and a verdict against both appellants for S2,000. They have appealed to this court. Hart, J. (after stating the facts). It is a well-settled general rule that, when a defendant has \'iolated a duty imposed upon him by the common law, he should be held to be liable to every person injured whose injury is the natural and probable consequence of the misconduct. Hence in our consideration of this case we are first met with the prop- osition of whether or not the negligence of appellants in lea"\nng the dynamite caps near the spur track, which was frequented by children, was the proximate cause of the injury. As was said by this court in the case of Martin r. Railway Co., 55 Ark. 510, 19 S. W. 314, and later approved in the case of James v. James, 58 Ark. 157, 23 S. W. 1099, there must be a direct connection between the neglect of the defend- ant and the injury; that its connection must be something more than one of a series of antecedent events without which the injury would not have happened. It is a well-settled general rule that, if, subsequent to the original negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote. The difficulty arises in each case in applying the principle to a given state of facts. Counsel for appellee mainly rely upon the case of Harriman v. Pittsburg, C. & St. L. R. Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. SECT. III.] PITTSBURG REDUCTION CO. V. IIORTON. 193 Rep. 507, to establish their contention that the negligence of the appellants in leaving the caps on the spur track was the proximate cause of the injury. Other cases are cited by them to sustain their position, but they chiefly turn upon the question of the contributory negligence of the plaintiff. The facts and the gist of the holding of the court in the Harriman Case are fairly stated in the syllabus, which is as follows: "A train of cars, passing over some signal torpedoes, left one un- exploded which was picked up by a boy nine years old, at a point on the track which he and other children, in common with the general public, had long been accustomed to use as a crossing, with the knowl- edge and without the disapproval of the company. He carried it into a crowd of boys near by, and, not knowing what it was, attempted to open it. It exploded and injured the plaintiff, a boy 10 years of age. Held, that the act of the boy who picked up the torpedo was only a contributory condition, which the company's servants should have anticipated as a probable consequence of their negligence in leaving the torpedo where they did, and that that negligence was the direct cause of the injury suffered by the plaintiff." There the child did a perfectly natural thing for a boy to do. He found what appeared to be an attractive plaything. He at once car- ried it over to his playmates and exhibited it to them. He then began to try to open it so that they might learn what it contained. In doing this the explosion occurred which caused the injury. The result was the natural sequence of antecedent events, and ought to have been an- ticipated by any person of ordinary care and prudence. In the present case, the facts are practically undisputed. Charlie Copple's father was an employee of a company engaged in a similar business to that of ap- pellant company. Naturally, his avocation and the proximity of his residence to the mines made both himself and his wife familiar with the nature of explosives. True, Mrs. Copple says that she did not know what the shells contained, but she did know that they were shells for some kind of explosives, that her son brought them home, and that he played with them. She admits that, when he would leave them on the floor, she would pick them up and lay them away for him. This continued for a week, and then, with her knowl- edge, he carried them to school. Her course of conduct broke the causal connection between the original negligent act of appellant and the subsequent injury of the plaintiff'. It established a new agency, and the possession by Charlie Copple of the caps or shells was thereafter referable to the permission of his parents, and not to the original tak- ing. Charlie Copple's parents having permitted him to retain posses- sion of the caps, his further acts in regard to them must be attributable to their permission and were wholly independent of the original negli- gence of appellants. This is but an application of the well-established general rule that, to charge a person w^th liability for damages, the 194 OLSON r. GILL HOME IN\'ESTMEXT CO. [CHAP. III. negligence alleged must be found to have been the proximate cause of the injury to the plaintiff. This case has given us much concern, and we have reviewed many cases illustrating the application of the general rule. It is useless to ^e^^ew them, for most of them recognize and approve the general rule, and, as the facts in each case are different, a re\'iew of them would add nothing to the opinion. The leading cases on the subject are cited in the respective briefs of the attorneys in this case. As above stated, the evidence speaking on the question is undisputed, and, having determined that the intervening act of Charlie Copple's parents in permitting him to retain in his possession the caps broke the causal connection between the original wrongful act of appellants and the subsequent injury of the plaintiff, there is nothing to submit to the jury. The judgment is therefore reversed, and the cause dismissed. Wood, J., not participating.^ OLSON V. GILL HOME INVESTMENT CO. Supreme Court of Washington, 1910. [Reported 58 Wash. L51.] Crow, J. This action was commenced by Ernest Olson, a minor, by M. E. Olson, his guardian ad litem, against Gill Home Investment Company, a corporation, and Clark N. Gill, its president and manager, to recover damages for personal injuries. From a judgment in plain- tiff's favor, the defendants have appealed. The appellant Gill Home Investment Company was engaged in selling an addition to the city of Tacoma, and was itself owner of four unfenced lots therein, located at the intersection of two public streets. A small building constructed for toilet purposes was located on these lots, about one hundred and twentv-five feet from one street and thirt^■- nine feet from the other. A board screen or wall, about six feet high, was in front of the unlocked toilet door. Between the toilet and the nearest street was a small tool house. Some weeks prior to the accident Avhich caused respondent's injuries, the appellant corporation com- menced the construction of a cement building, and Clark N. Gill, its president and manager, caused a box and several loose sticks of Her- cules stumping powder (hereinafter called dynamite, a term used by the witnesses), to be removed from the tool house and stored on a shelf in the toilet, doing .so to protect workmen who went into the tool house. The shelf was located on plates upon which the rafters rested, about six feet eight inches above the floor and five feet eight 1 See also Pollard v. Oklahoma City Ry., 36 Okl. 96, 128 Pac. 300. —Ed. SECT. III.] OLSOX r. (iILL HOME I>rV'EST:VIEXT CO. 195 inches above the seat of the toilet. The toilet door was left unlocked. A pile of sand, attractive to children but designed for use in mixing concrete, was kept on appellants' lots near the toilet. A public school was about three blocks distant. Several residences, the homes of children, were located in the Aicinity. A number of young school boys, including the respondent, were in the habit of plavnng upon appellants' lots. They occasionally ^asited and used the toilet, as did other per- sons, most of whom were appellants' employees. One of the boys, Wesley Depew, nearly fourteen years of age, discovered the box and loose sticks of dynamite and told his twin brother Leslie Depew of such discovery. On a Sunday prior to the accident, Leslie Depew, with two younger boys, went to the toilet and took a loose stick of dynamite which they hid under a stump. Wesley Depew had pre\d- ously taken some dynamite caps and fuses which he says he found in the toilet. He exploded one of these caps and gave some of them to the respondent, who was then about thirteen years of age. On the day of the accident, Leslie Depew and two other boys, accompan- ied by respondent, took the dynamite, caps and fuse, to some vacant ground one-fourth of a mile distant, where respondent attached a cap and fuse to the stick of dynamite, and igniting it, unsuccessfully tried to explode it under a large stump. He then attempted to explode it with a lighted paper, but again failing, undertook to remove the cap by prying it from the dynamite with a stick. This produced an un- expected explosion which caused respondent to lose both of his hands. ^ Appellants, citing many authorities, further contend that their neg- ligence, if conceded, was not the proximate cause of the accident, but that the intervening criminal act of the boys in stealing the dynamite, caps and fuse, and their subsequent acts in attempting to explode the same, were the proximate cause. In an action for damages result- ing from negligence, the defendant will be held liable for the natural and probable consequences of his negligent acts. To create such a liability the injury complained of must result from the negligence charged, which will not be considered as too remote if the resulting accident might have been reasonably anticipated. The act of an intervening third party, contributing to the injurious result of the original negligence, does not, in all cases, excuse the original wrongdoer. If such inter- vening act could, or in the exercise of ordinary prudence should, have been foreseen, the original act still remains the proximate cause of the injury. In this case it was for the jury to determine whether the appellants who carelessly and illegally stored, and it might be said abandoned, a dangerous explosive, should have anticipated that it might come into the possession of young boys who frequented the place, even though they were trespassers. " In addition to the requirement that the result should be the natural * Part of the opinion is omitted. In it the Court decided that the jury were justi- fied in finding the defendant negligent. — Ed. 196 OLSON V. GILL HOME IN\'ESTMENT CO. [CHAP. III. and probable consequence of the negligence it is commonly stated that the consequence should be one which in the light of attending circumstances an ordinarily prudent man ought reasonably to have fore- seen might probably occur as the result of his negligence." 29 Cyc. 493. See, also, Nelson v. McLellan, 31 Wash. 208, 71 Pac. 747, 96 Am. St. 902, 60 L. R. A. 793; Akin v. Bradley Engineering & Mach. Co., 48 Wash. 97, 92 Pac. 903, 14 L. R. A. (N. S.) 586; Wellington v. Pelle- tier, 173 Fed. 908; Mattson v. Minnesota etc. R. Co., supra; Powell v. Deveney, 3 Cush. 300, 50 Am. Dec. 738; Scott v. Shepherd, 2 W. Bl. 892; Englehart v. Farrant & Co., 1 Q. B. (1897) 240; Myers v. Sault St. Marie Pulp & Paper Co., 3 Ont. L. R. 600; Labombarde r. Chatham Gas Co., 10 Ont. L. R. 446; Clark v. Chambers, 3 Q. B. (1878) 327, 7 Cent. Law Journal 11 ; Lynch v. Nurden, 1 Q. B. 29; Illidge v. Goodwin, 5 C. & P. 190; Lake v. Milliken, 62 Me. 240, 16 Am. Rep. 456; Harri- man v. Pittsburgh etc. R. Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. 507; Lane v. Atlantic Works, 111 Mass. 136; Powers v. Harlow, 53 Mich. .507, 19 N. W. 257, 51 Am. Rep. 154; Mize v. Rocky Mountain Bell Tel. Co., 38 Mont. 521, 100 Pac. 971, 129 Am. St. 659; Fishburn v. Burlington & N. W. R. Co., 127 Iowa 483, 103 N. W. 481. No two cases can be found which are identical, and there is an irreconcilable conflict of authority on this question, but we think the above mentioned cases, and many others that might be cited, announce correct principles of law applicable to the facts now before us. In Myers v. Sault St. Marie Pulp & Paper Co., supra, a workman em- ployed by the defendants ascended a movable stepladder to work near the unguarded rim of a cogwheel. When he was about to descend, a truckman moved the ladder, causing him to fall on the unguarded wheel. The contention was made that the defendants' negligence in failing to guard the cogwheel as required by statute, and in failing to pro\dde an immovable ladder, was not the proximate cause of the accident, but that the wrongful act of the truckman in moving the ladder was such proximate cause. The issue was submitted to the jury, and the appellate court, speaking through Armour, C. J. O., -said : " The jury having found that the injury to the workman was caused by the negligence of the defendants in no way guarding the wheel, and in not properly fastening the ladder to the floor, and this finding l)eing, as I think, supported by the ex-idence, the next question is, did the intervention of the workman in wrongfully taking away the ladder relieve the defendants from the consequences of their negligence, and I think not, for the defendants' negligence still remained an operating cause of the workman's injury. According to what is said by Lord Esher and Rigby, L. J., in Engelhart p. Farrant & Co., [1897] 1 Q. B. 240, the question whether the negligence of the defendants was an effective cause of the workman's injury was a question for the jury, and if so, they have in effect determined it, by finding as they did in their SECT. III.] OLSON V. GILL HOME INVESTMENT CO. 197 answers to the third and seventh questions submitted to them. And I think that the authorities show that the intervention of the work- man in wrongfully taking away the ladder did not relieve the de- fendants from the consequences of their negligence." In Labombarde v. Chatham Gas Co., supra, where plaintiff received an electric shock, the court said: "But if the actual throwing of the loose guy wire over the other wires were the act of some passer-by, who thought to put it out of the way, or even of some mischievous urcliin, it seems to me such a likely and probable thing to happen that it is not too remotely connected with the act of cutting the guy wire from its fastenings and lea^-ing it loose on the ground to render those guilty of the latter negligence liable for the consequences which ensued though an independent agency had intervened as their immediate cause. The original negligence of the workmen of the defendant company was an effective cause of the in- jury to the plaintiffs. McDowall v. Great Western R. W. Co., [1902] 1 K. B. 618, [1903] 2 K. B. 331, 337-8." The recent case of Wellington v. Pelletier, supra, is especially per- tinent. There the defendant's employees had negligently left a num- ber of cars standing on a spur track at the head of a grade, secured only by setting the brakes. They should have been further secured by fas- tening or blocking the wheels. Some children playing about the cars released the brakes, causing them to run down and kill defendant's employee, who was working in a trench between the rails of the spur. It was held that the intervening act of the children did not pi-event the defendant's negligence from being the proximate cause of the accident. The court said : ■"It is claimed that the interposition of the boys in this case was the interposition of a new efficient cause, which, if interposed, the law says eliminates the original cause. On the other hand, it has been thoroughly understood, since the leading case of Scott v. Shepherd, 2 W. Bl. 892, well known as the ' Squib Case,' that the interposition even of human beings, acting under circumstances which deprive them of periods for reflection, or known to be of classes which are ordi- narily governed by unreasoning impulses, does not come within the class of responsible interventions referred to. This is illustrated in one direction by the Squib Case, and in the other direction by the well- known cases where young children, either through carelessness or in- attention, have been intrusted with dangerous weapons. The general principle is sufficiently discussed in Pollock's Law of Torts (8th Eng. ed.) 45 et scq. The rule on which the plaintiff relies in this respect was authoritatively stated and applied by the Court of Appeal in 1896 in Engelhart v. Farrant, [1897] 1 Q. B. 240." In this case it was for the jury to determine whether respondent and the other boys, considering their age, their experience, and their knowl- edge of right and wrong, were in their acts governed by unreasoning and 198 OLSON v. GILL HOME INVESTMENT CO. [CHAP. III. natural impulses. That the question of proximate cause was properly submitted to the jury, see: Milwaukee & St. Paul R. Co. v. Kellogg, 94 U. S. 469; Union Pac. R. Co. i\ Callaghan, 56 Fed. 988; Denver etc. R. Co. V. Robbins, 2 Colo. App. 313, 30 Pac. 261. Appellants make other assignments of error based upon instructions given and refused, but the foregoing discussion disposes of them adversely to their contention. The instructions given fully, fairly, and correctly stated the law, and properly submitted all issues of fact to the jury for their consideration. It is contended that the criminal act of the boys in stealing the dynamite was such an independent, intervening act as to insulate the appellants' negligence and relieve them from liability. The question as to whether the boys fully understood the criminal import of their act was properly submitted to the jury and determined adversely to the appellants' contention, as was also the question of the contributory negligence of the respondent, he being of tender age. There was e\d- dence tending to show that the boys, including respondent, did, to a limited extent, realize that dynamite was a violent explosive. They were trying to expode it ; but the e\adence further shows that they did not fully understand or appreciate all of its dangerous qualities. They supposed it could only be exploded by some method of ignition, and when they lit the fuse, they dodged behind large stumps for protection. It is CAndent, however, that they did not anticipate that any explosion could be produced in the manner in which it was produced. In the light of respondent's tender years, his limited knowledge, his lack of experience, and all of the facts and circumstances disclosed by the evidence, we cannot hold that he was, as a matter of law, guilty of such contributory negligence as to relieve the appellants from liability, but must hold that the question of his contributory negligence was an issue for the jury.^ iSee also Victor v. Smilanich, 54 t'olo. 479, 131 Pac. 392; Vills v. Cloquet, 119 Minn. 277, 138 N. W. 33; Harriman v. Pittsburgh Ry., 45 Oh. St. 11, 12 N. E. 451.— Ed. SECT. III.] HARRISON V. BERKELEY. 199 HARRISON V. BERKELEY. Court of Appeals, South Carolina, 1847. [Reported 1 Strob. Law, 525.] The following is the report of the presiding judge: This was an action of trespass on the case, in which the plaintiff sought to recover damages, for that the defendant, being a shop-keeper, in \io- lation of the statute on the subject, and to the WTong of the plaintiff, sold and delivered ardent spirits to Bob, a slave of the plaintiff, by means whereof the said slave became intoxicated, and died. It appeared that on the 24th day of December, 1845, Bob, being pa- troon of one of the plaintiff's boats, on his way from Charleston, went into the shop of defendant in Camden, and there received a gallon jug and a quart bottle of whiskey, and started with them in the afternoon, to convey to his master in Fairfield, across the Wateree, intelligence of the boat's arrival. Bob drank none at the shop, but drank repeatedly from the bottle before he reached the river, at the ferr;^-, and afterwards ; fell down in the road repeatedly; fell into a creek, in which he would have been drowned, but for the aid of some white men then in his company ; and soon afterwards, at the fork of the roads, proceeded alone, staggering. He was clad in homespun, and had a-bundle, besides the jug, on his back. The night was misty and somewhat cold. He called at a house apd got fire, returned and went again. Next morning he was found dead near the house where he had called; the jug of whiskey full and corked near him, the bottle not to be seen; and upon movement of his body, a fluid smelhng like whiskey flowed from his mouth. A physician examined his body upon the inquest, but could discover no external injury; and from the want of rigidit;^- in the muscles and other appearances, had no doubt that he died of drunkenness and exposure. Wardlaw, J. delivered the opinion of the court. This action is novel in the instance, but that is no objection to it, if it be not new in principle. The law endures no injur\', from which damage has ensued, without some remedy; but directs the applica- tion of principles already established, to every new combination of cir- cumstances that may be presented for decision. It has, however, been urged here again, as it was on the circuit, that ad- mitting everything which the plaintiff' has alleged, he has presented either a case of damage without legal injury, or a case of injury without legal damage. First. Damage mthout injury. It is said, that the act of selling or giving whiskey to the slave. Bob, was not in itself a wrong to the plain- 200 HARRISON V. BERKELEY. [cilAP. III. tiff, but was only a \aolation of a penal statute, wliich has imposed upon such acts penalties, to be recovered by indictment; and that, therefore, no action by the plaintiff lies, nor any remedy but the indictment pre- scribed by the statute. The wrong, for which an action of trespass on the- case hes, may be either an unlawful act, or a lawful act done under circumstances which render it wrongful — any act done or omitted, contrary to the general obhgation of the law, or the particular rights and duties of the parties. It might not be difficult to distinguish between the selling, or giving of spirituous liquor to a slave, and the fair selling to a slave of an article which could not be expected to produce harm; and to show that, inde- pendent of any express statutory prohibition, the former act is so con- trary to the rights of the master, and to the duties imposed upon other persons in a slave-holding community, that the person who does it without special matter of excuse, subjects himself to liability for all the legal damage that may' thence ensue, in like manner as if he had care- lessly or wantonly- placed noxious food within the reach of domestic animals. But this case may be rested where the plaintiff left it. Our statutes, time after time, have subjected him, who sells to a slave any article without license, to fine and imprisonment upon his conviction after indictment; and the last statute on the subject provides especially for the punishment, upon conviction after indictment, of him, who sells or gives spirituous liquor to a slave. No express prohibition is contained in either of the statutes, but the penalties necessarily imply a prohibition, and make the thing prohibited, unlawful; (10 Co. 75). For the injury to the public, the only remedy is that provided by the statute — indict- ment; but as in case of a nuisance to the whole community, if any per- son has suffered a particular damage beyond that suffered by the public, he may maintain an action in respect thereof, (2 Ld. Ray. 985) ; so in case of a misdemeanor punishaljle by statute, a party grieved is entitled to his action for the particular damage done to liira by reason of the un- lawful act. Second. We come then to the main ground assumed in the defence — that no legal damage followed the injury, but that which was shown was too remote — not such a consequence of the injury as the law will notice. It would be vain to attempt to define with precision, the terms which have been used on this subject, or to lay down any general rules, by which consequences that shall be answered for, and those which are too remote for consideration, may be always distinguished. But we will endeav^or, without dwelling on particular cases, to deduce from the general course of decision on tliis point, so much as may show that the instructions given were sufficiently favorable for the defendant, and that verdict is conformable to law. We are troubled here with no distinctions between loss sustained and gain prevented; nor with any between cases wliich have been aggra- SECT. III.] HARRISON V. BERKELEY. 201 vated by e\al motive, and those which have not been: for the plaintiff here has claimed only compensation for his actual loss; and the defend- ant may be regarded as the jury were instructed to regard him — that is, *as one who, with no particular evil purpose or ill-will towards master or slave, has violated the law only for his own gain. A distinction, however, is to be observed between cases where the damage ensues, whilst the injurious act is continued in operation and force, and those where the damage follows, after the act has ceased. In the former class, were the cases of Wright & Gray, (2 Bay, 464) and all the cases which have been cited, or supposed, of slaves put without permis- sion of the owners on race-horses, in steam-boats, or on railroads — those of property injured during a deviation from the course which was prescribed concerning it, (6 Bing. 716) and in general all, where unex- pected damage was done, whilst an unauthorized interference with anoth- er's rights lasted. Here it is usually of small moment to inquire, whether the damage was the natural consequence of the injury, because the immediate connexion between the wrongful act, and the damage sus- tained, shows that the damage, however extraordinary, has actually resulted directly from the injury. But in the latter class, to which the case before us must be assigned, the connexion is not immediate between the injury and the consequences; and it becomes indispensable to dis- criminate in some way between the various consequences that in some sense may be said to proceed from the act, for all of them cannot con- stitute legal damage. Every incident will, when carefully examined, be found to be the result of combined causes, and to be itself one of various causes which pro- duce other events. Accident or design may disturb the ordinary action of causes, and produce unlooked for results. It is easy to imagine some act of trivial misconduct or slight negligence, which shall do no direct harm, but set in motion some second agent that shall move a third, and so on, until the most disastrous consequences shall ensue. The first wrongdoer, unfortunate rather than seriously blameable, cannot be made answerable for all of these consequences. He shall not answer ior those which the party grieved has contributed by his own blameable negligence or wrong to produce, or for any which such party, by proper diligence, might have prevented. (Com. Dig. action on the case, 134; 11 East. 60; 2 Taunt. 314; 7 Pick. 284.) But this is a very insufficient restriction; outside of it would often be found a long chain of consequence upon consequence. Only the proximate consequence shall be answered for. (2 Greenleaf P^v. 210, and cases there cited.) The difficulty is to determine what shall come within this designation. The next conse- quence only is not meant, whether we intend thereby the direct and im- mediate result of the injurious act, or the first consequence of that result. What either of these would be pronounced to be, would often depend upon the power of the microscope, with which we should regard the affair. Various cases shew that in search of the proximate consequences 202 HARRISON V. BERKELEY. [CIL\P. III. the chain has been followed for a considerable distance, but not without limit, or to a remote point. (8 Taunt. 535; Peak's cases, 205.) Such nearness in the order of events, and closeness in the relation of cause and effect, must subsist, that the influence of the injurious act may pre- dominate over that of other causes, and shall concur to produce the consequence, or may be traced in those causes. To a sound judgment must be left each particular case. The connexion is usually enfeebled, and the influence of the injurious act controlled, where the wTongful act of a third person intervenes, and where any new agent, introduced by accident or design, becomes more powerful in producing the consequence than the first injurious act. (8 East, 1; 1 Esp.48.) It is, therefore, re- quired that the consequences to be answered for, should be natural as well as proximate. (7 Bing. 211; 5 B. & Ad. 645.) By this, I under- stand, not that they should be such as upon a calculation of chances would be found likely to occur, nor such as extreme prudence might anticipate, but only that they should be such as have actually ensued one from another, without the occurrence of anv such extraordinarv con- junctm-e of circumstances, or the intervention of any such extraordinary result, as that the usual course of nature should seem to have been de- parted from. In requiring concurring consequences, that they should be proximate and natural to constitute legal damage, it seems that in propor- tion as one quality is strong, may the other be dispensed with : that which is immediate, cannot be considered unnatural; that which is reasonablv to be expected will be regarded, although it may be considerably re- moved. (20 \Yend. 223.) It has been supposed, in argument, that without any of these distinc- tions, it is always sufficient to inquire only whether the consequences have certainly proceeded from the injurious act: but it will be seen, that in settling what have certainly proceeded from the act, we will be obliged to determine what are natural and proximate, unless we mean to run to absurd extremes. In the case before us, the defendant has insisted that the damage re- sulted not so much from his act as from the acts of the slave, w ho was a moral being, and a free agent. (4 M'Cord, 223.) In cases where damage has been done, during the continuance of a wrongful interference with a slave, it was considered of no consequence that the slave was a free agent: (2 Rich. 613; Id. 455; 9 La. Rep. 213) for there the consent of the slave could not justify the interference, and even the wilful act of the sla\'e producing the damage was like any other improbable misfortune which might have occurred whilst the wTongful act was in operation. But in cases like this, the will of a slave may well interrupt the natural consequences of a wrongdoer's act, and produce consequences for which he should not answer. Selling whiskey to a slave is no more unlawful than seUing to a sla\'e any other article without license. And if a rope, sold to a slave, without license and without suspicion of mischief, should be employed by the slave to hang himself, the prominent ground of dis- SECT. III.] HARRISON V. BERKELEY. 203 tinction between that case and the present one would depend upon the will of the slave. If it should be said that the slave would have got a rope elsewhere, or would have taken some other means of self- destruction, it might be answered that if this defendant had not sold the wliiskey, Bob would have got it, or some other means of intoxication, elsewhere. But where the mischievous purpose of a sla\e is manifest, or should be foreseen by ordinary prudence, the injurious act embraces the will of the slave as one of its ingredients ; — the wrong consists, in part, in ministering to the purpose, and natural consequences of that purpose, (although the purpose may have been carried to an extent not anticipated, or the consequences may have been altogether undesigned and unusual,) are the legal consequences of the injurious act. Therefore, it was well left to the jury, to decide whether the drinking and intoxica- tion of Bob were the natural and probable consequences of selUng liquor to him. If fault be found with the instructions given on this head, it is that they were too fa^'orable to the defendant, in requiring that the con- sequences should be found to be probable as well as natural. For prox- imate and natural consequences, not controlled by the unforeseen agency of a moral being, capable of discretion, and left free to choose, or by some unconnected cause of greater influence, a wrong- doer must generally answer, however small was the probabihty of their occurrence. In many instances, the will of a slave, as a controlling cause, would be found as feeble as was the will of a child that received damage from a cart left carelessly in the street, which he unlawfully at- tempted to drive. (1 Adol. & El. N. S. 28.) Often the intervention of a third person's will, influenced by the injurious act, has no effect in rendering consequences too remote. (1 Ad. & El. 43; 2 C. Mer. & Rose. 707.) The defendant, however, has further insisted that if the drinking and intoxication were the proximate and natural consequences of his act, the exposure and death were not: but that the death resulted mainly from the ex-posure, and not from the intoxication only. It may well l)e said, (speaking in the language of everyday Hfe, which attempts no phil- osophical analysis,) that the exposure was the immediate effect of the intoxication, and that the two produced the death. Thus, without any unconnected influence to be perceived, the death has come from the in- toxication, which the defendant's act occasioned. The defendant cannot complain that an agent, which his own act naturally brought into opera- tion, has occurred to produce the result. The proximity in order of events, and intimacy of relation as cause and effect, between the injurious act and the damage are as great here as in various cases which have been cited. (17 Pick. 78; 3 Scott New R. 386; 17 Wend. 71; 9 Wend. 325; 11 East, 571; and the cases before cited.) The jury have decided the facts, and this court is of opinion that under the inferences which must be drawn from the finding, the verdict is free from the objection that the damages were too remote. 204 GRAVES V. JOHNSON. [CHAP. III. The instructions concerning a delivery to Bass, as an instrument of Bob, are approved. The motion is dismissed. Withers, J., ha\dng been of counsel in this cause, gave no opinion. GRAVES V. JOHNSON., Supreme Judicial Court of Massachusetts, 1901. [Reported 179 Mass. 58.] Holmes, C. J. This is the second time that this case comes before this court. 156 Mass. 211. It is a suit for the price of intoxicating liquors sold here. At the first trial it was found that they were sold with a view to their being resold by the defendant in Maine against the laws of that State; and on that state of facts it was held that the action would not lie. At the second trial it was found that the plain- tiffs' agent supposed, rightly, that the defendant intended to resell the liquors in Maine unlawfully, but that the plaintiffs and their agent were and were known by the defendant to be indifferent to what he did with the goods, and to have no other motive or purpose than to .sell them in Massachusetts in the usual course of business. Seemingly the plaintiffs did not act in aid of the defendant's intent beyond selling him the goods. The judge refused to rule that the plaintiffs' knowledge of the defendant's intent would prevent their recovery, and the case is here again on exceptions. The principles involved are stated and some of the cases are col- lected in the former decision. All that it is necessary for us to say now is that in our opinion a sale otherwise lawful is not connected with subsequent unlawful conduct by the mere fact that the seller correctly divines the buyer's unlawful intent, closely enough to make the sale unlawful. It will be obser^•ed that the finding puts the plaintiff's' SECT. III.] REGINA I'. FRETWELL. 205 knowledge of the defendant's intent no higher than an uncommuni- cated inference as to what the defendant was Hkely to do. Of course the defendant was free to change his mind, and there was no commun- icated desire of the plaintiffs to cooperate with the defendant's present intent, such as was supposed in the former decision, but on the con- trary an understood indifference to everything beyond an ordinary sale in Massachusetts. It may be that, as in the case of attempts, (Commonwealth v. Peaslee, 177 Mass. 267; Commonwealth v. Kennedy, 170 Mass. 18, 22,) the line of proximity will vary somewhat according to the gravity of the evil apprehended, Steele v. Curie, 4 Dana, 381, 385-388; Hanauer v. Doane, 12 Wall. 342, 346; Bickel v. Sheets, 24 Ind. 1, 4, and in different courts with regard to the same or similar matters. Compare Hubbard v. Moore, 24 La. An. 591; Michael v. Bacon, 49 Mo. 474, with Pearce v. Brooks, L. R. 1 Ex. 213. But the decisions tend more and more to agree that the connection with the unlawful act in cases like the present is too remote. M'IntjTe v. Parks, 3 Met. 207; Sortwell v. Hughes, 1 Curt. C. C. 244, 247; Green V. Collins, 3 Cliff. 494; Hill v. Spear, 50 N. H. 253; Tracy v. Talmage, 4 Kernan, 162; Distilling Co. i\ Nutt, 34 Kans. 724, 729; Webber V. Donnelly, 33 Mich. 469; Tuttle v. Holland, 43 Vt. 542; Braunn V. Keally, 146 Penn. St. 519, 524; Wallace v. Lark. 12 So. Car. 576, 578; Rose v. Mitchell, 6 Col. 102; Jameson v. Gregory, 4 Met. (Ky. 363, 370; Bickel v. Sheets, Hubbard v. Moore, and Michael v. Bacon), uhi supra. Although a different rule was assumed in Suit v. Woodhall, 113 Mass. 391, it will be seen that it equally was assumed by the instructions given at the trial, and that the exceptions and the point decided in that case concerned only the imputation to the plaintiffs of their agent's knowledge. M'Intyre v. Parks never has been overruled. Dater v. Earl, 3 Gray, 482; Webster v. Munger, 8 Gray, 584, 587; Adams v. Coulhard, 102 Mass. 167, 172; Milliken v. Pratt, 125 Mass. 374, 376. Exceptions to the admission of letters of the plaintiffs' agent to them for the purpose of showing what they knew are not argued. Exceptions overruled. REGINA V. FRETWELL. Crown Case Reserved. 1862. [Reported Leigh Sf Cave, 161.] Erle, C. J. The prisoner in this case was convicted of murder ; and the question for us is whether, upon the facts stated, he was properly convicted. The deceased, Elizabeth Bradlej', was pregnant, and, for 206 REGINA V. FRETWELL. [CHAP. III. the purpose of producing alwrtion, took a dose of corrosive sublimate, vvliicli had been procured for iier by the prisoner with a full knowledge of the purpose to which it was to be applied. In procuring the poison the prisoner had acted at the instigation of the deceased, and under the influence of threats bv her of self-destruction if the means of pro- curing abortion were not supplied to her. Then the case sets out the reasons which caused the woman to be so desirous of preventing her state l)ecoming known. The jur}' expressl\- negatived the fact of the prisoner having administered the poison to the deceased, or caused it to be taken b}- her ; but the}' found that he had delivered it to her with a knowledge of the purpose to which she intended to apply it, and that he was therefore accessory before the fact to her taking poison for the purpose of procuiring at)ortion. Chief Justice Cockburn thereupon, on the autliorit}' of Russell's Case, directed the jury to return a verdict of wilful murder against the prisoner, and reserved the case for the consideration of this Court. Now, upon the facts stated, the present case appears to me to differ materially from that of Rex v. Russell. There the prisoner, finding the woman to be pregnant, of his own motion procured arsenic, gave it to the woman, and instigated and per- suaded her to take it, for the purpose of procuring a miscarriage; and the woman took it knowingl}', with the like intent of procuring a mis- carriage, and thereby caused her own death. The Judges held that it was a misdemeanor in her to take arsenic for the purpose of procuring abortion ; that, having thereby caused her own death, she was felo de se ; and that the prisoner was an accessor}' before the fact to the murder. Now, there appears to me to be a ver}' marked distinction between the conduct of the prisoner, Fretwell, in this case, and the con- duct of the prisoner, Russell, in the case I have already referred to. In tiie latter case, Russell instigated and persuaded the woman to take the arsenic. In the present case, the prisoner was unwilling that the woman should take the poison. He procured it for her at her instiga- tion, and under a threat by her of self-destruction. He did not admin- ister it to her, or cause her to take it, and the facts of the case are quite consistent with the su|)position tliat he hoped and expected that she would change her mind and would not resort to it. Then, the cases being distinguishable, it is unnecessarv to decide whether in this case the woman was felo de se. I am the more fortified in my opinion by looking at the late statute for consolidating and amending the law relating' to offences against the person. By sect. 58 of that statute, any woman administering poison to herself with intent to procure mis- carriage, and any person administering it to her or causing it to be taken 1)\' her with the like intent, is guilty of felon}'. By sect. 59, any one supplying or procuring any poison, knowing that the same is intended to be used with intent to procure miscarriage, is guilty of a misdemeanor. The crime, therefore, of procuring or supplying the poison is one of a totally different character from that of administering it, or causing it to be taken. My opinion is, that the prisoner was not guilty of murder, and that the conviction must be quashed. SECT. III.] ANDREWS V. KINSEL. 207 Martin, B. I am of the same opinion. The acts of the prisoner were too remote from the death of the woman to make him guilty -of murder. Channell, B. I am of the same opinion with the Lord Chief Justice, and for the reasons which he has given. Blackburn, J. I am of tlie same opinion, According to the finding of the jur}', tlie prisoner neither administered the poison nor caused it to be taken by the woman, and therefore was not a party to what took place in such a way as to make what he did amount to murder. Keating, J. I am of the same opinion. Convictio?i quashed. ANDREWS V. KINSEL. Supreme Court of Georgia, 1901. [Reported 114 Ga. 390.] Lewis, J. Andrews & Co. sued Kinsel for $500 damages, making by their petition substantially the following case: The plaintiffs rented from the defendant a storehouse in the city of Columbus, in which they transacted a mercantile business ; and it was the duty of the defendant, as the landlord of the plaintiffs, to keep the premises in good repair. The defendant also owned the storehouse adjoining that rented by the plaintiffs, a partition wall divifling the two stores. On a named day the defendant, by his agents and servants, entered his storehouse adjoining the plaintiffs' place of business for the purpose of making certain repairs thereon, and in making the repairs the partition between the two storehouses was removed, or partly removed, leaving the store of the plaintiffs exposed and unprotected; and upon lea\'ing the place at night the defendant's agents and servants negligently and carelessly left open two rear windows in the store next to that of 208 ANDREWS v. KIXSEL. [CHAP. III. the plaintiffs, thereby rendering it easy to effect an entrance into the plaintiffs' store through the rear windows and the opening in the parti- tion. On the night in question a burglar or burglars did gain entrance to the plaintiffs' store in the manner described, and steal from the plaintiffs a large quantity of merchandise, to their damage as afore- said. No notice was given to the plaintiffs that the partition had been removed or that the windows had been left open, and this, also, is alleged to have been negligence. The defendant filed a demurrer to the petition, which was overruled, and he also filed an answer, in which he denied liability, and denied that he had been negligent as alleged. The case went to trial, and, at the conclusion of the evidence for the plaintiffs, the court, on motion of defendant's counsel, granted a non- suit. To this ruling the plaintiffs excepted, and the defendant filed a cross bill of exceptions in wliich he assigned error upon the overruling of his demurrer. 1. As, in our opinion, the court below should have sustained the de- murrer filed by the defendant, and the refusal to do so was reversible error, the writ of error issued upon the main bill of exceptions will, under the ruling of this court in Rives v. Rives, 113 Ga. 392, be dis- missed. 2. It is unnecessary to argue, or to cite aiithorities to sustain, the well-settled legal principle that, to enable one to recover for damages resulting from the negligent conduct of another, it must appear that the negligence of the defendant was the proximate cause of the injury sustained. It is also a well-recognized principle that where there has intervened between the defendant's negligent act and the injury an independent illegal act of a third person, producing the injury, and without which it would not have happened, the latter is properly held the proximate cause of the injury, and the defendant is excused. 8 Am. & Eng. Enc. Law (2d ed.) 580. As is stated in 1 Shear. & R. Neg. (5th ed.) § 25, "The defendant's negligence may put a temp- tation in the way of another person to commit a WTongful act by which the plaintiff is injured, and 3'et the defendant's negligence may be in no sense a cause of the injury." Thus, in Tennessee, a defendant was held not liable for the negligent failure to keep a night watchman on guard over the property of the plaintiff, as a result of which an incen- diary set fire to the property. State v. Ward, 9 Heisk. 133. In New York it is held that the relation of cause and effect between the negli- gence of the defendant and the injury to the plaintiff cannot be made out by including the independent illegal acts of third persons, and that the defendant cannot be made accountable for the unauthorized il- legal acts of other persons, although his own conduct may have in- (hrectly induced or incited the commission of the acts. Olmstead v. Brown, 12 Barb. 662. And in Oain v. Petrie, 6 Hill, 524, the following language is used: "To maintain a claim for special damages, they must appear to be the legal and natural consequences arising from the SECT. III.] HENDERSON V. DADE COAL CO. 209 • tort, and not from the wrongful act of a third party remotely induced thereby." See, also, Shugart v. Egan, S3 111. 56; Bosworth v. Brand, 1 Dana, 377; Carpenter v. Railroad Co., 13 App. Div. 328, 43 N. Y. Supp. 203. This principle is also well established in Georgia by the cases of Belding v. Johnson, 86 Ga. 177, and Henderson v. Coal Co., 100 Ga. 568. In the former case it was held that a widow could not recover damages of a barkeeper for the liomicide of her husljand, who was killed in an encounter with a third person ; the quarrel leading up to the encounter ha\ing been the result of intoxication produced l)y liquor illegally sold to the slayer of plaintiffs husband by the barkeeper. In the Henderson Case the lessee of a con^-ict was held not liable for the criminal act of tlie con^^ct, by which a third party suffered damage, although the lessee negligently placed it in the power of the con\'ict to commit the crime. These cases, it will be seen, are closely in point. The rule is aptly and rather quaintly stated in Whart. Neg. (2d ed.) § 134, in the following language: "I am negligent on a particular sub- ject-matter as to which I am not contractually bound. Another per- son, mo\'ing independently, comes in and either negligently or mali- ciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a non-conductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces." Applying these principles to the case now before us, it is manifest that the plaintiffs did not make out a cause of action by their petition. Granting as true all of their allegations as to the negligence of the defendant, it is also true, upon the face of their pleadings, that there intervened as a direct cause be- tween the negligence of the defendant and the damage sustained by themselves the independent criminal act of a responsiljle human agency. The demurrer to the petition should have been sustained. Writ of error on main bill of exceptions dismissed. Judgment on cross bill reversed. All the justices concurring. HENDERSON v. DADE COAL CO. Supreme Court of Georgia, 1897. [Reported 100 Ga. 568.] Lumpkin, P. J. The declaration now under review discloses one of the very saddest cases with which it has ever been our fortune to deal. The plaintiff. Miss Maggie Henderson, was, at the hands of a brutal convict, subjected to injury, wrong, and agony, both mental and phy- sical, a recital of which would make one of the darkest pages in our reports. Every member of this bench was deeply moved and affected 210 HENDERSON V. DADE COAL CO. [ciIAP. III. by the account which the declaration gives of her bhghted life. There is not, perhaps, in the annals of litigation, a story of wrong which ap- peals more pathetically for human sympathy. Were we to follow the instincts of our hearts, we would be under the strongest impulse to sus- tain the plaintiff's action; but as magistrates, under the solemn duty of enforcing what we conscientiously believe to be the law of the case, we are compelled to hold that the trial court flid not err in sustaining the various demurrers alleging that no cause of action was set forth. Omitting any mention of numerous questions the decision of which is not, in the view we take of the case, in the least degree essential to its determination, we shall confine ourselves to a very brief discussion of the propositions announced in the headnotes, from which the nature of the case, so far as now material, will be readily apprehended. The case, at last, depends upon the question, whether the custodians of such a con\'ict as is described in the third headnote are legally respon- sible in damages for the consequences of crimes committed by him while at large, and in the unrestrained control of his own movements, by their permission, or because of their negligence in failing to keep him safely confined.^ We have no doubt that, as a general rule, a criminal tort committed by such a couAact would be too remote a consequence of his keepers' misconduct in the premises to render them responsible to the person injured. While cases may arise in which this general rule should be varied — as where it appears that the custodians of the con- vict were in some way connected with the perpetration of the tort, or had reasonable grounds for apprehending that it would be commit- ted — nothing is alleged in the present declaration to bring this case within such an exception. The tlirect and proximate cause of the in- juries inflicted upon IVIiss Henderson was the independent action of the con\'ict himself. He, though A-icious, brutal, and infamous, was nevertheless an accountable human agent. While, according to the plaintiff's averments, he was not restrained by any conxictions of right and wrong, nor governed by any principles of morality, the declaration does not attempt to allege that he was not a rational person, fully amenable to the laws both of God and of man. That he 1 That a "felony" convict, about thirty-seven years olti, who had been continu- ously in the penitentiary for about twelve years and who had five times escaped therefrom, was "a man in robust and vigorous health, immoral, brutish, devilish, of vicious habits, of violent passions, prone to desire for sexual intercourse," and a person "not restrained by any convictions of right and wrong, or governed by any principles of morality," and that "all of these conditions and things" concerning him "were well known and were understood" by his custodians, "or ought to have been, because of what they knew of his said person, history, character and surround- ings," did not, without more, afford such cause for apprehending that he would, when an opportunity occurred, commit the crime of rape upon an unprotected woman, as to subject his custodians to liability in damages for the perpetration by him of this offense at a time when, because of their fault, he was at large and in the unrestrained control of his own movements. SECT. III.] HENDEKSON V. DADE COAL CO. 211 was prone to a desire for sexual intercourse did not, by any means, render him an exception to a law of nature which universally pre- vails in the animal kingdom, whether as applied to human beings or animals of lower orders. Vile as this man was, it cannot be held that the defendants could reasonably have anticipated that he would, upon the first opportunity, assault and ra\'ish any defenseless woman whom he might encounter. He was equally liable to commit some other heinous crime; and they were not bound to presume that he would commit any crime at all. The State requires the lessees of convicts, at the expiration of their terms, to furnish them transportation to the counties in which they were con^^cted. Thus the law clearly contem- plates that these criminals shall be set at liberty in the very com- munities whence they came. It can hardly be questioned that scores, perhaps hundreds, of convicts, just as bad as the one now under consid- eration, are, from time to time, set at large by the law's command. If there was reason to apprehend that couAncts of this depraved t}npe would, upon regaining their liberty, commit such crimes as that com- plained of in the present case, it would seem that the true policy of the law would be to keep them imprisoned during their lives. That such is not the policy of the law is due to the fact that reason for apprehend- ing such outrages does not really exist. The true rule applicable in a case like the present was recognized and stated by this court in the case of Perry v. Railroad, 66 Ga. 751, wherein it was said that, in order to entitle a party to recover damages on account of the negligence of another, it should appear that the damages were the natural and proximate result of such negligence; "for, should it appear that, but for the intervention of a responsible third party, the defendant's negligence would not have caused damage to the plaintiff, then the defendant is not liable to plaintiff, for the reason that the causal connection between negligence and damage is broken by the interposition of an independent, responsible human action." In support of this doctrine, Judge Stewart, who presided in the place of Chief Justice Jackson, disqualifiefl, cited Field, Dam., §§ 13, 32, 52, 53, 78; Wayne, Dam., §25; Whart. Neg., § 134; Wait, Act. & Def. tit. "Damages." It is true that in the case just cited the action w^as based upon a tort of an altogether different character, but the principle announced controls tlie case at bar. The case of Beld- ing V. Johnson, 86 Ga. 177, also has some bearing upon the question at issue, it being there held that the tleath of the plaintiff's husband, who was killed by a man under the influence of liquor, who, when in this condition, was \-iolent and dangerous, was not occasioned by the act of a barkeeper who had furnished liquor to the slayer when he was already drunk, and had failed to protect the deceased from the homi- cidal assault made upon him in the barkeeper's place of business. Although the latter Aiolated a penal statute of this State in so fur- nishing the liquor, it was, in effect, held that he was not bound to 212 HENDERSON V. DADE COAL CO. [CHAP. III. anticipate that this unlawful conduct on his part would result in a homicide. A somewhat similar question was dealt vinth in Shugart r. Egan, 83 111. 5(). There the person furnished with the intoxicating liquors was himself, in consequence of abusive language used to another, assaulted and killed. In a sense, the furnishing of the liquor was an indirect cause of his death, but the court held it was not the efficient and proximate cause. In a case decided by the Supreme Court of Minnesota (Swinfin v. Lowry, 34 N. W. 22) it appeared that a minor person of the age of 18, upon inWtation of the de- fendants, ch-ank intoxicating liquors with them and their friends at divers saloons several times during the same evening, some of the liquor being ordered and paid for by the defendants themselves. " He became intoxicated and quarrelsome, and committed an assault upon plaintiff, resulting in serious injury to him," but "was not incited thereto by the defendants, and it was his own voluntary act. In an action against them by the plaintiff for damages, on the ground that the assault was the result of their acts in furnishing the liquor supplied to the minor," the re\'iewing court held "that the damages were too remote, and were not to be deemed the natural and proximate result of the alleged wrongful acts of the defendants." A case which, upon its facts, is still more closely in point, is that of Hullinger v. Worrell, 83 111. 220. It was there held that a sheriff who negligently permitted the escape of a prisoner in his custody under an indictment for an as- sault with intent to murder was not liable in damages for the conse- quences of a subsequent assault by the escaped prisoner upon the same person upon whom the indictment in question charged that the original assault had been committed. This decision was based explicitly upon the proposition that the act of the prisoner, after regaining his lib- erty, was not the natural and probable consec[uence of the escape. Cases more or less resembling the foregoing are quite numerous, but it would not be helpful to multiply citations on this line. The rule of law that damages arising ex delicto are not recoverable unless they spring from the negligence or misconduct of the defendant is as well settled as any legal principle. The difficulty arises in its appli- cation to given cases. We have been unalile to find any case precisely like the present, but our minds have, without difficulty, reached the conclusion that none of the lessees of penitentiary con\icts named as defendants can be made liable for the crime committed in this instance. Nothing they did or omitted was its efficient or proximate cause. It was the independent act of another, not standing in any relation to the defendants which would render what he did imputable to them. The court below was right in sustaining the demurrers and dismissing the action. Judgment affirmed. SECT, III.] MILOSTAN V. CHICAGO. 213 MILOSTAN V. CHICAGO. Appellate Court, Illinois, 1909. [Reported 148 III. App. 540.] It appears from the e\'idence that there is a brick building, fronting on Noble Street, at the southwest corner of Noble and Blackhawk streets. The building stands up close to the sidewalk on .Blackhawk street. On the latter street, along the side of the building, there is an opening or area-way in the cement sidewalk. This area-way is variously stated to be three to six feet wide, about six feet in depth and of con- siderable length. About 5 o'clock in the afternoon in question, Jozef Milostan, with two friends, Bernard Piotrowski and John Magorski, came, walking east, along the sidewalk at the side of this building. Bernard walked to the left of plaintiff and John a little behind the two. When they were within a few feet of Noble street Bernard suddenly stepped behind Jozef, grabbed him by the two arms and pushed or shoved him off the sidewalk into the area-way. Bernard testified that he did it intentionally, to scare Jozef — "fool" him or have some fun with him, but that he did not intend to hurt him. Jozef suffered a compound fracture of the bone extending from the shoulder to the elbow-joint in the left arm, and there was both a transverse and a longitudinal fracture. It is probably a permanent injury. There is no question, upon the e\ddence, but that the act of Bernard was a wil- ful, intentional act. The act was neither an act of negligence nor an accident. Chytraus, J. PlaintiflF can recover only if he succeeds in estab- lishing one of two propositions, namely: The negligence of the city, in lea\ang unguarded the area-way, was the proximate cause of the plaintiif's injury; or, the combined and concurring negligence of Bernard Piotrowski and the city was the proximate cause of the plaintiff's injury. If the act of Piotrowski was the proximate cause, then the plaintiff cannot recover. No matter how negligent the city was, if its negligence was not the proximate cause, or one of the ele- ments in the proximate cause, the city is not liable. There is, in this case, no material fact in dispute. " It is a general principle of juris- prudence, under both the ci\dl and common law, that, to entitle a party to recover for damages alleged to have been sustained in consequence of the negligence of another, there must not only be negligence in fact, but it must have been the proximate cause of the injury." C. & A. R. R. Co. V. Becker, 76 111. 2.5, 30. At the start, it is well to have a clear understanding of the meaning 214 MILOSTAN v. CHICAGO. [CHAT. 111. of the term proximate cause. The Century Dictionary defines " prox- imate" to mean "next," "immediate," "without the intervention of the third," and " proximate cause" as " tliat cause which immediately precedes and directly produces an effect, as distinguished from a re- mote, mediate or predisposing cause." In Wabash R. R. Co. v. Coker, 81 111. App. 660, which was affirmed in the Supreme Court, after hold- ing that " The breach of duty upon which an action is brought must not only be the cause, but the proximate cause, of the damages to the plaintiff," the court defined proximate cause by saying: "The proxi- mate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new, independent cause, produced an event, and without which that event would not have occurred." In Strojny r. Griffin Wheel Co., 116 111. App. 550, 552, this court adopted that definition and added: "An intervening sufficient cause is a new and independent ^'orce which breaks the causal connection between the original wrong and the injury, and it becomes the direct and immediate — that is, the proximate — cause of the injury. The test is, was it a new and independent force, acting in and of itself in causing the injury, and superseding the original wrong so as to make it remote in the chain of causation?" In Good- lander Mill Co. V. Standard Oil Co., 11 C. C. A. 253, 63 Fed. 400, a case in which there was a bitter legal contest between able counsel, we find the definition stated as follows: "The proximate cause of an injury is that, cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. . . . The remote cause is that cause which some independent force merely took advantage of to accomplish something not the probable or natural effect thereof." Wlien we understand what is meant by "proximate cause," it is clear, without discussion, that the omission of the city, in leaving unguarded the area-way, was not alone the proximate cause of the plaintiff's injury, if it was a cause at all. Thus the plaintiff fails in the first of the two propositions stated. It is to be noted, in connection .with the second proposition, that the plaintiff's position is, in his brief, stated as follows: "We contend that the negligence of the defendant contributed to the injury and that without the negligence of the defendant in this regard the accident could not have occurred." It is true that where an " injury is the result of the negligence of the defendant and that of a third person; or of the defendant and an inevitable accident; or an inanimate thing has contributed with the negligence of the defendant to cause the injury, the plaintiff may recover, if the negligence of the defendant was an efficient cause of the injury." Pullman Palace Car Co. v. Laack, 143 111. 242, 261. If an act of negligence on the part of Piotrowski and an act of negligence on the part of the city combined or cooperated — the two concerning i:)roximately, that is, not necessarily in point of time but in causation, to the effect — so as to injure the plaintiff, then, SECT. III.] MILOSTAN t. CHICAGO. 215 unquestionably, both would be liable to him, jointly or severally. It would, however, in such case, be necessary in order to create liability upon both that negligence on the part of both should contribute proxi- mately, that is, as an element in the proximate cause, and without intervention of another independent force as the producing cause. In the case a.t bar it is to be observed that the concurring act of Pio- trowski was not merely an act of negligence but it was an intentional, wilful and deliberate act. That is to say, the act was wilful whether or not the intent to injure was present. On the other hand, on the part of the city there was merely the passive, omissive negligence of permitting, or leaving in an unguarded state, the area-way, without which negligence, it is contended, "the accident could not have oc- curred." Passing, for a moment, the question whether anything in the evidence justifies the assertion that but for the unguarded state of the area-way this accident could not have occurred we find, here, that the act of Piotrowski and the omission of the city are not of the same legal nature and not on the same legal level in the law of wrongs to persons. This raises a question entirely different from that which would have arisen, if Piotrowski's act had been one of negligence merely. Undoubtedly the city was guilty of negligence in permitting the area-way to exist in the sidewalk, and more so in permitting it to re- main unguarded. But an act of wilful \aolence by one person and mere negligence chargeable to another person cannot, together, contribute so as to become the proximate cause of injury to a third person. For instance, as here, a wilful act of violence 5f the one and a negligent physical condition chargeable to another are incompatible as joint and contributory elements in one and the same proximate cause of an injury. In the very nature of things, wilful \-iolence, as a producing or efficient cause of injury, will precede negligence, where they, in point of time, concur or co-exist in connection with the injury. What- ever the breach of duty constituting merely negligence, on the part of one, the interposition, by another, of wilful violence, is, necessarily, an intervention of a new and independent force, which breaks the causal connection between the negligence and the injury. The incon- sistency and incompatibility between wilful violence and mere neg- ligence is such that they cannot concur or co-exist, in the direct or proximate cause, except in point of time; the idea that they can juridi- cally be co-ordinates in the causation of an injury is inconceivable. Concurrence in point of time is not, necessarily, concurrence in point of cause. While the two — negligence and \iolence — may concur in point of time, the violence necessarily precedes the negligence in being the producing, direct and proximate cause of the injury. At common law there is a distinct remedy for each; in the one instance trespass and in the other an action on the case lies. ( 'onceding, there- fore, that the negligence of the city concurred, in point of time, with the act of Piotrowski, which was an act of wilful violence, and the injury 21G MILOSTAN V. CHICAGO. [CHAP. III. to plaintiflP was thus effected, then the wilful violence of Piotrowski was the proximate cause and the mere negligence on the part of the city was but a remote cause, of the injury to the plaintiff. In no wise can we consider the act of Piotrowski as negligence, merely. But, considering the case from another point of ^^ew, we cannot agree with plaintiff's counsel that the negligence of the defendant was the proximate cause of the injury. True, at the place in question, there was a state or condition of negligence created by defendant's failure to exercise reasonable care to keep the sidewalk — highway — rea- sonably safe for ordinary use. But, in this particular instance, the plaintiff, so far as that particular negligence is concerned, was passing along — by the area-way — in safety and he had, undoubtedly, the hour of the day being considered, observed the area-way and was avoiding it. He had passed alongside of the area-way for a considerable distance and was nearly past it when Piotrowski's act, availing itself of the existing conditions and the occasion afforded by the presence of the area-way, intervened, and, as the direct and efficient cause, brought iabout plaintiff's injury. Plainly plaintiff would have safely passed the area-way but for the intervention of this procuring and proximate cause of the injury. The remark made by Dr. Bishop in one of his excellent works, while discussing contributory negligence on the part of a plaintiff, is here, in principle, applicable. He says : " If, while one is negligent — perhaps the expression should be, in a state of negligence — another negligently employs an independent force, which, availing itself of the occasion afforded by the former's negligence, works a harm not its natural and probable consequence, but an independent harm, the first negligence is not contributory to the second." Bishop Non- Contract Law, § 463. According to the facts in tliis particular in- stance it is clear that the harm done plaintiff was not a natural con- sequence of the presence of the area-way and therefore the condition of the area-way was not, in point of causation, the direct or proximate cause of plaintiff's injury. Plaintiff's counsel appear to argue that the presence of the area-way operated as an incentive or inducement to Piotrowski, by his wilful \'iolence, to shove plaintiff into this area-way. For, it is , argued "that without the negligence of the defendant in this regard the accident would not have occurred." Were it true that the presence of the area-way did so operate upon Piotrowski's mind, the city would not, on that account, be responsible. No one is liable for more than the natural and probable consequences of his negligence and it was neither natural nor probable that the presence of the area-way should so oper- ate. It would be idle to speculate upon what would or would not have happened if the area-way had been guarded or had not been there, with reference to plaintiff being injured; for whatever conclusion one would come to would be but a conjecture. Upon the facts as they are the defendant's negligence was not the proximate cause of the injury. SECT. III.] MILOSTAN V. CHICAGO. 217 There was no immediate causal connection between the presence of the area-way and the happening of the injur}'. An element intervened. Seymour v. Union Stock Yards Co., 224 111. 579, 585; Cole v. German Savings & Loan Soc, 59 C. C. A. 593, 124 Fed. 113; Terminal R. R. Assn. V. Larkins, 112 111. App. 366. Counsel for plaintiff rely upon Siegel, Cooper & Co. v. Trcka, 218 111. 559. The doctrine of that case is (p. 562-3), that, if a defendant is guilty of negligence, which negligence is an element in the proximate cause of the injury, then it makes no difference, as to liability, that some act or agency of some other person or thing also contributes to bring about the result for which damages are claimed. There are two distinctions between that case and the case at bar. According to the expressions in the opinion in that case the court was considering a case, where, in point of fact, two contributing acts of negligence constituted the proximate cause. Here, in point of fact, we find in the act of Pio- trowski, alone, the efficient and direct proximate cause. Another dis- tinction is that in that case, as appears from the language of the opin- ion, the two parties who occasioned the injury were both guilty of mere negligence, while in the case at bar the party we, so far as this case is concerned, consider responsible for the happening and whose act was the proximate cause, was guilty of a wilful act of violence which, as shown, preceded the city's mere negligence as a proximate cause. For reason indicated the judgment of the Superior Court must be reversed without remanding. Reversed} Mr. Justice Baker dissenting. ^ See also Loftus v. Dehail, 133 Cal. 214, 65 Pac. 379; Alexander v. New Castle, 115 Ind. 51. —Ed. 218 DEXXV ;•. NEW YORK CENTRAL RAILROAD CO. [cHAP. III. DENNY V. NEW YORK CENTRAL RAILOAD CO. SupRKME Judicial Court of Massachusetts, 1859. [;j Graij, 48L] Merrick, J. This action is brought to recover compensation for damages alleged to have been sustained l)}- the plaintiff in consequence of an injury to a quantit}' of his wool delivered to the defendanls to be transported for him IVom Suspension Bridge to Albany. It appears from the report that the wool, directed to Boston, was received by them at the former, and carried to the latter place, and was there safely de- posited in their freight depot. But it was not transported seasonably nor with leasonable dispatch. By their failure to exercise the degree of care and diligence required of them by law, it was detained six davs at Syracuse, and consequently arrived at Albany so many days later than it should regularly have been there. Whilst it was lying in the defendant's freight de[)ot in that city, it was submerged b}' a sudden and violent flood in tiie Hudson River. This rise of the water caused the alleged injury to the wool. Upon the evidence adduced by the parties at the ti'ial, three ques- tions of fact were submitted to the determination of the jury. It is necessary now to advert only to the first of those questions ; for tlie finding of the jury in relation to the second was in favor of the defend- ants, and the verdict in relation to the third has on their motion been already set aside as having been reirdered against the weight of evidence in the case. In looking at the terras and language in which the action of the jury in reference to the first of these questions is expressed, it would perhaps, at first sight, seem that they had passed upon and determined the pre- cise point in issue between the parties, namel}', whether the wool was injured b}' reason of an omission on the part of the defendants to exer- cise the care an Army in their lawful and peaceable pro- cessions, they will abstain from opposing or disturbing them. It is usual, happily, in this country for people to respect and obey the law when once declared and understood, and I hope and have no doubt that it will be so in the present case. But if it should not be so, there is no doubt that the magistrates and police, both at Weston-super- jMare and everywhere else, will understand their duty and not fail to do it etiiciently, or hesitate, should the necessity arise, to deal with the Skeleton Army and other disturbers of the public peace as they did in the present instance with the appellants ; for no one can doubt tiia^ the authorities are only anxious to do their duty and to prevent a disturbance of the public peace. The present decision of the justices, however, auiounts to this, that a man may be punished for acting law- fully it he knows that his so doing may induce another man to act unlawfully, — a proposition without any authority whatever to support it. Under these circumstances, the questions put to us by the justices nuist be negatively answered, and the oider appealed against be dis- charged. WISE V. DUNXING. High Court ok Justice, Kixg's Bknch Division. 1902. [Reported 1902, 1 K. B. 167.] LoKD Alverstonk, C. .T. This is a case stated by way of appeal from an order made by the stipendiary magistrate of Liverpool bind- ing over the appellant "to be of good behaviour." The recogniz- ance also bound liim over " to keep the peace"; but the actual form of it is not nuiterial because it contained tlie words "to be of sood behaviour." Tlie case has been extremely well argued. I am of opinion that the magistrate was perfectly justified in putting the ap- pellant under recognizances. It is not necessaiy to go at great length SECT. IV.] WISE V. DUNNING. 237 into the various authorities which were cited to us ; I am not able to find in those authorities any statement of a rule of law which is to be applied in all such cases as this. The difficult}' arises from attempts to apply the law to particular states of circumstances, for it is obvious that different people may express different opinions as to what ought to have been the application of the law under particular circumstances. For instance, our attention was called to the opinion of a very learned lawyer and writer, Mr. Dicey, with respect to Beatty r. Gillbanks, 9 Q. B. D. 308, and his opinion, as I understood the passage when read, was that the view taken by the Irish courts is in conflict with that taken by Field, J., and Cave, J., in tiiat case. But I think that, when Beatty v. Gillbanks, supra, is closely examined, it lays down no law inconsistent with anything stated by the judges in the Irisli cases. For this purpose it is sufficient to cite the following passages. In Beatty v. Gillbanks, su])ra, Field, J., said, stating, I think, the law with absolute accuracy : " Now I entirely' concede that every one must be taken to intend the natural consequences of his own acts, and it is clear to me that if this disturbance of the peace was the natural consequence of acts of the appellants they would be liable, and the justices would have been right in binding them over. But the evidence set forth in the case does not support this contention."' O'Brien, C. J., in Reg. /-. Justices of London- derry, 28 L. R. Ir. at p. 447, said : " Xo act on the part of any person was proved to shew that it was reasonabl}' probable that the conduct of the defendants would, on the day in question, have provoked a breach of the peace." It is, in my opinion, important to emphasize that enun- ciation of the necessary test, because it has been pressed upon us by the appellant's counsel that if the appellant did not intend to act unlawfully himself, or to induce other persons to act unlawfully, the fact that his words might have led other people so to act would not be sufficient. In Reg. V. Justices of Cork, 15 Cox, C. C. 78, at p. 84, May, C. J., after quoting the passage from Blackstone which was read to us during -the argument, proceeded : " This requisition of sureties must be under- stood rather as a caution against the repetition of the offence than any immediate pain or punishment. This caution is such as is intended mereh' for prevention without any crime actually committed by the part}', but arising onl}' from a probable suspicion that some crime is intended or likel}' to happen, and consequently it is not meant as an}' degree of punishment, unless perhaps for a man's imprudence in giving just ground for apprehension." Again, in the second case of Reg. V. Justices of Cork, 15 Cox, C. C. 149, reported in the same vol- ume, Fitzgerald, J., after referring to the authorities, said, 15 Cox, C. C. at p. 155: ''Without citing further authority we may assume that where it shall be made reasonably to appear to a justice of the peace that a person has incited others by acts or language to a viola- tion of law and of right, and that there is reasonable ground to believe that the delinquent is likely to persevere in that course, such justice has authority by law, in the execution of preventive justice, to provide for the public security by requiring the individual to give securities for 238 WISE v. DUNNING. [CHAP. III. good behaviour, and in default commit him to prison." I have referred to those cases, not foi- the purpose of endeavouring to deduce from them any new rule of hiw, but for the [purpose of pointing out that, in a number of cases and before different judges, wliat 1 may call the essen- tial condition has been stated, substantially in the same way though in different language, that there niust be an act of the defendant, the natural consequence ot which, if his act be not unlawful in itself, would l)e to produce an unlawful act by other persons. This case might really l)c put higher, liut I have so far dealt with the matter assuming the facts in favour of the argument of the counsel for the appellant. I think that the local Act, to which we were referred, has a \evy impor- tant bearing on this case. It provides that an\* person who uses any threatening, or abusive, or insulting words or behaviour with intent to provoke a breach of the peace (which is not this case), or wherein' a breach of the peace ma}- be occasioned, ma\' be summoned before the local magistrates and fined. It was contended for the api)ellant that the Act was onU* intended to prevent persons from using bad lan- guage in the streets of Liverpool with impunity. Though that may have been one of the evils which the Act aimed at, I do not think that its scope was so limited. Here we have distinct findings of facts that the appellant held a number of meetings in the public streets ; that the highways were blocked by crowds numbering thousands of persons ; that very serious contests and breaches ot" the peace had arisen, and that the appellant himself used, with respect to a large body of persons of a different religion, language which the magistrate has found to be of a most insulting' character, and that the appellant challenged any one of them to get up and deny his statements. Magistrates are only doing their duty when the}* have regard to and make themselves acquainted with the character of the population amongst whom they have to administer justice ; and, in considering the natural consequence of a man's acts who has used insidting language in the public streets towards persons of a particular religion, the magistrates are bound to take into consideration the fact that there is a large body of those per- sons in the town. The appellant also was proved to have stated, with resi)ect to a meeting he intended to hold, that he had received a letter informing him that the Catholics were going to bring sticks, and he told his supporters that the -police had refused to give iiim protection, and lie said that he looked to them for protection. On these facts I think no one could reasonably doubt that the police and the magistrate were risht in thinkinar that his language and conduct went verv far indeed towards inciting people to commit, or was, at any rate, lan- guage and behaviour likely to occasion, a breach of the peace. It may be true that, if this case were to be considered with reference only to any particular one of the threats or illegalities which it is suggested the appellant has committed, further evidence would have been necessary; but in my opinion, there was abundant evidence to shew that in the pulilic streets he had used language which had caused an obstruction, which was abusive, which did tend to bring about a breach of the -,«i SECT. IV.] WISE V. DUNNING. 239 peace, and that he threatened and intended to do similar acts in another place. The fact that he had promised not to hold a meeting at one place, but had held it within a quarter of a mile of that place on the same day, shews, at any rate, that the magistrate was justified in taking precautions to prevent a repetition of his previous conduct. Further, I think that the information was sufficient to justify the magistrate in hearing the evidence, and that any omission in the lan- guage of the information, although it does allege meetings on the higli- way and fear of a breach of the peace, was ami)ly cured by the evidence which was given. The magistrate heard the information; the appel- lant was represented b}- a solicitor, and elected to give no evidence. Instead of being punished, he was properly bound over to keep the peace. I am of opinion that the magistrate acted witliin his jurisdic- tion, and quite rightly ; that tiie [)oints of law raised on behalf of the appellant fail, and that our judgment should be for the respondent. Darling, J. I am of the same opinion. I think it necessar\- to summarize shortly the facts which were proved before the magistrate. To begin with, we have the appellant's own description of himself. He calls himself a " crusader," who is going to preach a Protestant crusade. In order to do this he supplied himself with a crucifix, which he waved about, and round his neck were hung beads — obviously de- signed to represent the rosaries used by Roman Catholics. Got up in tins way he admittedly' made use of expressions most insulting to the faiih of the Roman Catholic population amongst whom he went. There had been disturbances and riots caused by this conduct of his before, and the magistrate has found that the language of the appellant was provocative, and that it was likely to occur again. Large crowds had assembled in the streets, and a serious riot was onl}' prevented by the interference of the police. Now, what was the natural consequence of the appellant's acts? It was what has happened over and over again, what has given rise to all the cases which were cited to us, and what must be the inevitable consequence if persons, whether Protestants or Catholics, are to be allowed to outrage one another's religion as the appellant outraged the religion of the Roman Catholics of Liverpool. The kind of person which the evidence here shews the appellant to be I can best describe in the language of Butler. He is one of "... that stubborn crew Of errant saints, whom all men grant To be the true Church Militant ; A sect, whose chief devotion lies In odd perverse antipathies." — Ifudibras, Pt. T. In my view, the natural consequence of those people's conduct has been to create the disturbances and riots which have so often given rise to this sort of case. Counsel for the appellant contended that the natural consequence must be taken to lie the legal acts which are a consequence. I do not think so. The natural consequence of such conduct is illegal- 240 WISE V. DUNNING. [cHAP. III. itv. I think that the natural consequence of this " crusader's " elo- quence lias been to produce illegal acts, and that from iiis acts and conduct circumstances have arisen which justified the magistrate in binding him over to keep the peace and be of good behaviour. In the judgment of O'Brien, C. J., in Keg. v. Justices of Londonderr}-, sv/pra, tliere is this passage : " Now I wish to make the ground of my judgment clear, and carefully to guard against being misunderstood. I am per- fectly satisfied that the magistrates dfd not make the order which is impugned by reason of there having been, or there being likely to be, any obstruction of the highway, and that the true view of what took place is that the defendants were bound over in respect of an appre- hended breach of the peace; and, in m\' opinion, there was no evidence to warrant that apprehension." It is clear that if there had been evi- dence to warrant that apprehension, the Chief Justice would have held the magistrates' decision in that case to be right. It is said that Beatty V. Gillbanks, siq^ra, is in conflict witli that decision. I am not sure that it is. I am inclined to think that, having regard to the passage which my Lord read from Field, J.'s, judgment in Beatty v. Gillbanks, supra, the whole question is one of fact and evidence. But I do not hesitate to sa}' that, if there be a conflict between these two cases, I prefer the law as it is laid down in Reg. v. Justices of Londonderrv, 28 L. R. Ir. 440. If that be a right statement of the law, as I think it is, the magis- trate was perfectlv justified in coming to the conclusion he did come to in tliis case, even witliout taking into consideration the question of the local Act of Parliament to which we were referred. For these reasons I am of opinion that the magistrate's order was right. Chanxell, J. I am of the same opinion. I agree with the proposi- tion for W'hich counsel for the appellant contended — namely, tliat the law does not as a rule regard an illegal act as being the natural conse- quence of a tem[)tation which may be held out to commit it. For in- stance, a person who exposes his goods outside his shop is often said to tem[)t people to steal them, but it cannot be said that that is the natural consequence of what he does. Again, the Hou.se of Lords has recenth' held that, wherfe a blank space is left in a cheque which enables a person to increase the amount by adding figuiies, it is not the natural consequence that soraebod}' should be led to commit forgery by writing figures into the cheque. The proposition is correct and really familiar ; but I think the cases with respect to apprehended breaches of the peace shew that the law does regard the infirrait}- of human temper to the extent of considering that a breach of the peace, although an illegal act, may be the natural consequence of insulting or abusive language or conduct. Possibh' tliis is an exception to the rule which the appellant's counsel pointed out to us ; but I think it is quite clearly made out upon the cases which have been cited to us. I therefore think that the decision of the magistrate was right. Judgment for the Respondent. SECT. rV.] MCDOXALD V. SNELLING. 241 McDonald v. snelling. Supreme Judicial Court of Massachusetts, 1867. [Reported 14 All. 290.] , Tort. The declaration was as follows: "And the plaintiflF says that he was possessed and the owner of a certain sleigh, and a certain horse which was harnessed to said sleigh, and the plaintiff was sitting and riding in said sleigh so harnessed, in a certain highway called Eliot Street, in said Boston, into and across Tremont Street ; and one Thomas Baker on the same day was possessed of a certain sleigh and also of a certain horse drawing the same through and along said Tremont Street towards and near said Eliot Street in said Boston. And whereas then on the same day the defendant was possessed of a certain sled or sleigh, and also of certain horses drawing -the same through and along said Tremont Street, and the said defend- ant then and there, by a certain servant of him the said defendant, had the care, government, and direction of the said sled or sleigh of the said defendant and defendant's said horses, yet the said defendant, not minding or regarding his duty in this behalf, then and there by his said servant so negligently and unskillfuUy managed and behaved him- self in this behalf, and so ignorantly, carelessly, and negligently drove and managed, guided and governed his said sled or sleigh and horses, that the said sleigh or sled of the said defendant, for want of good and sufficient care and management thereof, and of the horses then and there drawing the same as aforesaid, then and there struck against the said sleigh of the said Baker with such force and \'iolence that the sleigh of the said Baker, wherein he was then sitting and riding as aforesaid, was broken to pieces, by means whereof the said horse of the said Baker was put to fright and ran with great violence, threw out said Baker, and escaping from him ran through and along said Tremont Street to said Eliot Street and into said Eliot Street, and upon, against, and over the plaintiff, his said sleigh and horse, with such force and violence that the plaintiff's said sleigh wherein he was then and there sitting and riding as aforesaid was thereby broken to pieces and destroyed, and the plaintiff thrown with great \aolence from and out of his said sleigh, and his collarbone broken, and otherwise greatly injured and bruised, and his life endangered, and the plaintiff's said horse was greatly damaged and spoiled. And the plaintiff used due care, and said Baker, his agents and servants, used due care, but said defendant, his agents and servants, did not use due care." The defendant demurred to this declaration, assigning as causes of demurrer that there is no averment in the declaration that the injury to the plaintiff occurred by reason of or by means of the negligence of the defendant; and that it does not appear from the averments of 242 Mcdonald v. snelling. [chap. hi. the declaration that the alleged negligence of the defendant was the proximate cause of the injury to the plaintiff, sufficient in law to render the defendant liable in damages. This demurrer was overruled in the Superior Court, and judgment ordered for the plaintiff; and the defendant appealed to tliis court. • Foster, J. The cjuestion raised by this demurrer is, whether the injury received by the plaintiff was so remote from the negligent act of the defendant that the action cannot be sustained, although the plaintiff was injured without his own fault, and would not have been injured but for the fault of the defendant. How far at common law is one guilty of negligence responsible in damages for the consequences resulting from his neglect? If the present action had been brought against a town, under cir- cumstances similar to those disclosed in this declaration. Marble v. Worcester, 4 Gray, 395, would be a decisive authority in favor of the defendant. The liability for damages caused by defects in highways is limited to cases where the defect is the direct and immediate cause of the injury. Jenks v. Wilbraham, 11 Gray, 142. But this statute liability is more narrowly restricted than the rule in actions at common law for damages caused by negligence, in which it is perfectly well settled that the contributory negligence of a third party is no defense, where the defendant has also been guilty of negligence without which the damage would not have been sustained. Eaton v. Boston & Lowell Railroad, 11 Allen, 500. The extent of the defendant's responsibility cannot therefore be conclusively determined by the rule of Marble V. Worcester, because the limits of liability under the statute as to de- fects in public ways and at common law for negligence are not identical. These cases against towns can be reconciled \vith the general principles of the law only by the consideration that they depend exclusively on a statute provision, within the terms of which they are strictly con- fined. Opinions upon questions of marine insurance are frequently quoted to illustrate the meaning of the maxim, causa proxima non remota sprcfatur. The exigencies of the present decision do not require an elaborate examination of the doctrine in its application to the law of insurance; but a few observations may be useful. Where the im- mediate cause of loss is a peril insured against, the underwTiters are not exonerated by the fact that its original cause was something not covered by the policy. They are liable if the loss ends in a peril insured against, although it began in some other cause. Thus, a loss arising immediately from a peril of the sea, but remotely from the negligence of the master, is protected by the policy ; but it by no means follows that, in an action brougiit against the owner or master for such negligence, the con- sequent loss of the cargo could not be included in the measure of dam- ages. Redman v. Wilson, 14 M. & W. 476. On the contrary, where a master unnecessarily deviated from his voyage, and during the devia- SECT. TV.] Mcdonald v. snelling. 243 tion a cargo of lime was wet b.y a tempest, and the bark was thereby set on fire and consumed, the owner was held liable for the fault of his agent the master, and the deviation was deemed to be sufficiently the proximate cause of the loss of the cargo. Da\'is v. Garrett, 6 Bing. 716. In a recent insurance cause, one learned judge, Willes, J., said: " The ordinary rule of assurance law is, that you are to look to the proxi- mate and immediately operating cause, and to that only ; " and another, Erie, C. J., said: "The words are to be construed wdth reference to the known principle pervading insurance law, causa proxima noti remota spedatur; the loss must be connected with the supposed cause of it, and in the relation of cause and effect, speaking according to common parlance." lonides v. Universal Ins. Co., 8 Law Times (N. S.) 705. Marsden v. City and County Ass. Co., Law Rep. 1 C. P. 232. But in an action for damages for refusing to receive a ship into a dock, the rule was said to be "that the damage must be proximate (not im- mediate) and fairly and reasonably connected with the breach of con- tract or wrong. As to what is so, difterent minds will difl^er." Wilson V. Newport Dock Co., Law Rep. 1 Exch. 186. Perhaps the truth may be that a maxim couched in terms so general as to be necessarily somewhat indefinite has been indiscriminately applied to different classes of cases in different senses, or at least without exactness and precision; and that this is the real explanation of the circumstance that causa proxima, in suits for damages at com- mon law, extends to the natural and probable consequences of a breach of contract or tort; while in insurance cases and actions on our highway statute it is limited to the immediately operating cause of the loss or damage. If this be so, the frequent reference to the maxim in cases like the present is not particularly useful, and certainly not conducive either to an accurate statement of principles or to uniform and intelli- gible results. In insurance causes the maxim is resorted to as furnishing a rule by which to determine whether a loss is attributable to a peril against which the contract has promised indemnity, and its application charges as frequently as it exonerates the underwriter. Peters v. Warren Insurance Co., 3 Sumner, 389; S. C. 14 Pet. 99. Hillier v. Allegheny County Ins. Co., 3 Penn. State R. 470. The limits of lia- bility and the definition of proximate cause in the law of insurance are too narrow and restricted to be applied to the present case. Definitions and illustrations drawn from other branches of the law may afford instructive analogies, but for controlling authorities we are to look to adjudications in actions of a similar nature to the present, and arising upon a state of facts more closely resembling those now under consideration. Here the defendant is alleged to have been guilty of culpable negligence. And his liability depends, not upon any contract or statute obligation, but upon the duty of due care which every man owes to the community, expressed by the maxim sic utere tuo ut alienuvi non Iced as. 244 MCDONALD V. SXELLING. [cHAP. III. Where a right or duty is created wholly by contract, it can only be enforced between the contracting parties. But where the defendant has A iolated a duty imposed upon him by the common law, it seems just and reasonable that he should be held liable to every person injured, whose injury is the natural and probalile consequence of the miscon- duct. In our opinion this is the well-established and ancient doctrine of the common law, and such a liabihty extends to consequential in- juries, by whomsoever sustained, so long as they are of a character likely to follow, and which might reasonably have been anticipated as the natural and probable result under ordinary circumstances of the WTongful act. The damage is not too remote if according to the usual experience of mankind the result was to be expected. This is not an impracticable or unlimited sphere of accountability, extending in- definitely to all possible contingent consequences. An action can be maintained only where there is shown to be, first, a misfeasance or negligence in some particular as to which there was a duty towards the party injured or the community generally; and, secondly, where it is apparent that the harm to the person or property of another which has actually ensued was reasonably likely to ensue from the act or omission complained of. Two recent cases, both much considered, sound and consistent with each other, well illustrate the true rule of law. A druggist who care- lessly lal)eled belladonna, a deadly poison, as extract of dandelion, a harmless medicine, and sent it so labeled into the market, was held, by the Court of Appeals in New York, liable in damages, after it had passed through several intervening hands, had been purchased of an apothecary, and administered by the plaintiff to his wife, who was injured by using it as a medicine in consequence of the false label. Thomas v. Winchester, 2 Selden, 397. Here the dealer owed to the public a duty not to expose human life to danger by falsely labeling a noxious drug and selling it in the market as a harmless article. To do so was culpable and actional)le negligence towards all likely to be, and who in fact were, injured by the mistake. Anc^l the injury that did follow was the natural and easily foreseen result of the carelessness. On the other hand, where one article, black oxide of manganese, in j itself harmless, which became dangerous only by being combined X, with another, was sold by mistake, the plaintiff who purchased it of a third party and mixed it with another substance, the combination with which caused a dangerous explosion, was held by this court to have no right of action against the original vendor who made the mis- take, for the damages caused by the explosion. Davidson v. Nichols, 11 Allen, 514. The mistake in regard to an article in its own nature ordinarily harmless, in the absence of contract or false representation, was not a violation of any public duty, or negligence of such a WTong- ful and illegal character as to render the party who made it liable for its consequences to third persons. Nor was it a natural and prob- SECT. IV.] MCDONALD V. SNELLING. 245 able consequence of such a mistake that this ordinarily innocuous substance would be mixed with another chemical agent, become ex- plosive by the combination, and a third party be thereby injured. It is clear from numerous authorities that the mere circumstance that there have intervened, between the wrongful cause and the injurious consequence, acts produced by the volition of animals or of human beings, does not necessarily make the result so remote that no action can be maintained. The test is to be found, not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and the injurious consequence. So long as it affirmatively appears that the mischief is attributable to the negligence as a result which might reasonably have been foreseen as probable, the legal liability con- tinues. There can be no doubt that the negligent management of horses in the public street of a city is so far a culpable act that any party in- jured thereby is entitled to redress. Whoever drives a horse in a thoroughfare owes the duty of due care to the community, or to all persons whom his negligence may expose to injury. Nor is it open to question that the master in such a case is responsible for the mis- conduct of his servant. Applying these principles more closely to the facts set forth in this declaration and admitted by the demurrer, we find that by careless driving the defendant's sled was caused to strike against the sleigh of one Baker with such xaolence as to break it in pieces, throwing Baker out, frightening his horse, and causing the animal to escape from the control of its driver and to run violently along Tremont Street round a corner, near by, into Eliot Street, where he ran. over the plaintiff and his sleigh, breaking that in pieces and dashing him on the ground Upon this statement, indisputably the defendant would be liable for the injuries received by Baker and his horse and sleigh. Why is he not also responsible for the mischief done by Baker's horse in its flight? If he had struck that animal with a whip and so made it run away, would he not be liable for an injury like the present? By the fault and direct agency of his servant the defendant started the horse in uncontrollable flight through the streets. As a natural conse- quence, it was obviously probable that the animal might run over and injure persons traveling in the vicinity. Every one can plainly see that the accident to the plaintiff was one very likely to ensue from the careless act. We are not therefore dealing with remote or unex- pected consequences, not easily foreseen nor ordinarily likely to occur, and the plaintiff's case falls clearly within the rule already stated as to the liability of one guilty of negligence for the consequential damages resulting therefrom. These views are fortified by numerous decisions, to a few of which it may be expedient to refer. It was recently held by tliis court that 240 .McDonald v. snellixg. [chap. hi. when a horse was turned loose on the highway, and there kicked a colt running by the side of its dam, the owner of the horse was liable for that damage. Barnes v. Chapin, 4 Allen, 444. We cannot distin- guish between the different ways of letting a horse loose upon the street; whether by leaving him there untied, or leaving a gate open, or, as in the present case, by dri\nng against him, and thus causing him to run away. In Powell r. Deveney, 3 Cush. 300, the defendant's servant left a truck standing beside a sidewalk in a public street, with the shafts shored up by a plank in the usual way. Another truckman temporarily left his loaded truck directly opposite on the other side of the same street, after wliich a third truckman tried to drive his truck between the two others. In attempting to do so with due care, he hit the de- fendant's truck in such a manner as to whirl its shafts round on the sidewalk so that they struck the plaintiff who was walking by, and broke her leg. For tliis injury she was allowed to maintain her action, the only fault imputable to the defendant being the careless position in which the truck was left bv his servant on the street, which was treated as the sole cause of the breaking of the plaintiff's leg, and in legal contemplation sufficiently proximate to render the defendant respon- sible. See also Powell v. Salisbury, 2 Yo. & Jer. 391; Vandenburg t. Truax, 4 Denio, 464; Rigby v. Hewitt, 5 Exch. 240; Greenland v. Chaplin, lb. 245; Morrison v. Da\'is, 20 Penn. State R. 175; Lynch v. Kurdin, 1 Q. B. 29; Thomas v. Winchester, ubi supra, and cases there cited. When a horse strayed on the highway and there viciously and violently kicked a child, the owner was held not liable in the absence of e\a(lence that he knew the animal was in the habit of kicking; because the act was not one which it was in the ordinary course of nature for a horse of common temper and disposition to do. Cox v. Burbidge, 32 Law Journ. (N. S.) C. P. 89. See also Cooke v. Waring, lb. Exch. 262. But two years later the same court held a defendant liable who had negligently left insecure a gate which he was bound to repair, in con- sequence of which his horse strayed into the field of an adjoining proprietor and there kicked another horse; because this was the natural consequence of two horses meeting under such circumstances, and such an injury produced by such an aninial was deemed to be the proxunate consequence of the defendant's negligence. Lee v. R~'ley, 34 Law Journ. (N. S.) C. P. 212. See also Reed v. Edwards, lb. C. P. 31. .In a case where the defendant left on the street exposed for sale a machine for crushing oil cake between rollers, into the cogs of which a little child put his fingers while another boy turned the handle, and the fingers were crushed, the court held that the act was too remote; and Bram- well, B., said: "The defendant was no more liable than if he had ex- posed goods colored ^dth a poisonous plant, and the child had sucked them;" but the same Baron added, "Further I can see no evidence of negligence in him. If his act in exposing this machine was negligence, wall his act in exposing it again be called wilfully miscliievous? If SECT. IV.] MCDONALD V. SNELLING. 247 that could not be said, then it is not negligence, for between negligence and wilful mischief there is no difference but of degree." Mangan V. Atherton, Law Rep. 1 Exch. 239. This case has no tendency and indicates no intention to overrule Dixon v. Bell, 5 M. & S. 198, in which, an injury having been received from a loaded gun. Lord Ellenborough held the owner liable for leaving a dangerous instrument in a state capable of doing mischief, although the mischief was caused by a girl taking it up, pointing it at a child, and snapping the trigger after the priming had been withdrawn. It may not always be easy to determine whether any particular act of negligence is of such a character as to render the party guilty of it liable to third persons; or whether the ensuing consequences are so far natural and probable as to impose a liability for them in damages. Cases may be put, falling very near the dividing line, and no rule can be laid down in advance, which wall determine all wdth precision. But the difficulty of applying a principle is a poor argument against its validity, unless one more satisfactory can be proposed in its stead. There may be discrepancies and want of uniformity in the application of the principle to the facts of particular cases, but all the authorities cited concur in the support of the doctrine we have stated, and agree as to the rule by which the extent of liability for consequential damages resulting from negligence ought to be determined. In the opinion of a majority of the court, the demurrer in the pres- ent case must be overruled, because on the statements of the declara- tion the plaintiff's injury does not appear to be so remote from the neg- ligence of the defendant as to exonerate the latter from liability. When such a question is raised by the pleadings, or arises upon agreed or undis- puted facts, it is matter of law ; but where the evidence is contradictory, or the inferences to be drawn from it are uncertain, the jury must de- termine by a verdict whether the facts fall within the rule of law to be laid down on the subject. Wilson v. Newport Dock Co., nbi supra} Demurrer overruled. ' See also Williams v. San Francisco & N. Ry., 6 Cal. App. 715, 93 Pac. 122; Boone County v. Mutchler, 137 Ind. 140, 36 N. E. 534 ; Lake w. Milliken, 62 Me. 240; Pennsylvania Steel Co. x. Wilkinson, 107 Md. 574, 69 Atl. 412 ; Rompillon v. Abbott, 49 Hun, 607, 1 N. Y. Supp. 662; Burrell v. Uncapher, 117 Pa. 3.53, 11 Atl. 619; Quinlan v. Philadelphia, 205 Pa. 309, 54 Atl. 1026; Shippers' C. & W. Co. v. David- son, 35 Tex. Civ. App. .558, SO S. W. 1032; Snyder v. Philadelphia Co., 54 W. Va. 149, 46 S. E. 366. — Ed. 248 HENRY V. ST. LOUIS, KANSAS CITY & NORTH'n RY. CO. [cHAP. III. HENRY V. ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY CO. Supreme Court of Missouri, 1882. [Reported 76 Mo. 288.] Hough, J. This is an action to recover damages on account of certain personal injuries received by the plaintiff and resulting from his being knocked down and run over by a flat car of the defendant while standing behind said car and between the rails of one of defend- ant's tracks in its switchyard, in the town of Moberly, on the night of September 7th, 1876. On the day of said 7th of September, the firm of Platter, Crow & Co^, of which plaintiff was a member, shipped a car load of horses from Chillicothe to St. Louis, over the railway of the defendant, under a contract which entitled the plaintiff to transportation on the train hauling his stock. He got on the caljoose car of the freight train on which liis stock was, at Brunswick, and reached Moberly in safety about 11 o'clock p. m. of the same day. When the train reached the roundhouse west of the passenger depot at Moberly, the caboose was detached and the train was run down into the lower end of the company's yard, east of the passenger depot, where a train was to be made up to go on to St. Louis, having in it the car containing plaintiff's stock. W^hen the caboose was detached, the brakeman said to the plaintiff, " You get out and go down to the other caboose ; this caboose goes no further." Plaintiff was also informed that his train would start from the lower or eastern end of the yard, in the course of an hour or two. Thereupon plaintiff and one Wagner, who was also going to St. Louis on the same train with plaintiff", got out, and walked to the depot, and after remaining there about an hour, went eastward to the lower end of the yard to find their train. The night was quite dark, neither moon nor stars were shining, but it wag light enough to enal)le plaintiff to distinguish his gray horses in the car, when close to them. When he found the train containing his stock, which ap- peared to be made up and ready to go, he and Wagner- walked im- mediately back to the east or forward end of the caboose, which was at the rear or west end of the train, and got upon the platform of that car. Wagner tried the door of the caboose, but failed to open it, and after remaining on the platform a few moments, the plaintiff becoming uneasy, tried the door and opened it and walked in. The car was dimly lighted by a lantern, and, as plaintiff was about to seat himself, SECT. IV.] HENRY V. ST. LOUIS, KANSAS CITY & NORTH'n RY. CO. 249 some person who was reclining on the opposite side of the caboose asked him what he was doing in there. The plaintiff stated that he had stock upon the train, whereupon the other gruffly said: "Get out of here; the train is not ready." Plaintiff thereupon went out on the platform of the car, where Wagner was, and the two remained there several minutes conversing and studying what to do. The yard contained five parallel tracks. The car on which they stood was on the center track, and there were two tracks on either side, with spaces between about six feet wide. Plaintiff had never been in the yard before, but he knew it was the switchyard of defendant. Wagner stepped down from the platform of the caboose and turned to go west toward the depot; the plaintiff also left the platform, but, wishing to remain near the caboose so he could conveniently jump on when they commenced pull- ing up the train, he walked south across the first track, which was unobstructed as far as he could see, both east and west, and went to the second track, and stepped between the rails of the second track immediately behind the east end of a flat car which was standing on said track, intending to get upon the flat car and remain there until his train was ready to start. There were other cars west of the flat car, but none east of it. As plaintiff' stepped upon the track he put his hand upon the flat car, and finding that they had been hauling dirt upon it concluded that he would not soil liis clothes by getting upon it, and he then turned around and was standing with his back toward the car, and was about to move away, when the flat car was struck by cars pushed against it from the west, and it ran over him, crushing his leg. Plaintiff heard no engine or train in motion to the rear of him, before he heard the noise made by the concussion of the cars, when he was struck, and he saw no light in the direction from which the cars came, and no light in the yard, save one to the east, and near the forward end of the train on which his stock was. Plaintiff' testified that he saw no yardman or brakeman in the yard, at or before the time of his in- jury; that, if there were any near enough to see him, he did not see them, and that if there had been a brakeman on the rear of the train pushed in on the track on which he was injured, such brakeman could not have seen him at the distance of two or three car lengths. The fore- going are all the material facts that appear in the testimony for the plaintiff, and no additional facts material to the plaintiff's case appear in the testimony offered by the defendant. That portion of the petition, which sets forth the facts constituting the negligence of the defendant, relied upon as giving a right of re- covery, is as follows: "Plaintiff avers that he was rightly in said caboose car, and that he had the right to be and remain there, and to be conveyed therein to the city of St. Louis. But plaintiff avers the further fact to be, that defendant, by its agents and employees in charge of said train and caboose, so made up anew, wrongfully, and by force and \aolencej 250 HENRY V. ST. LOUIS, IL\NSAS CITY & NORTH'n RY. CO. [C1LA.P. III. and without any cause or provocation whatsoever, drove out and expelled him (plaintiff) from out of said caboose into the midst of said exceeding great number of side car tracks and cars then and there being standing, into a place of great danger; and plaintiff avers that at once and immediately, and before he had time or could extricate himself from the networks of said car tracks and cars surrounding him, the defendant, by its agents and employees, so negligently run, man- aged and backed up another car, or another train of cars, standing on another car track, or s\\itch of same main car track, to which plaintiff had fled when expelled, as aforesaid, from the caboose aforesaid, and that the defendant had no light on the portion of car track, or switch of car track aforesaid, and gave no notice, by ringing of bells or other- wise, to him of mo\ang, running, managing or backing up of any train, or car of any train, on said car tracks, or any switch of said car track, and that he (plaintiff) was, without fault or negligence on his part, and without warning, struck in the back and knocked down and run over by said train so moved, run, managed, and backed up as afore- said, whereby plaintiff was then and there greatly injured, damaged, etc." When there is no conflict in the testimony, and all the causes con- tributing to produce an injurj'^ are known and unquestioned, whether a given act in the chain of causation is the remote or proximate cause of such injury, is a question of law for the court. We think it quite plain that the command of the occupant of the caboose to the plaintiff to "get out of there" was not the proximate cause of his injury. Conceding that the plaintiff's expulsion from the interior of the caboose was an unlawful act on the part of the defendant, although the person who ordered him out was not shown to be an employee of defendant and the rules of the company were not offered in evidence, still, the plaintiff' was not driven from the platform of the caboose, where, from aught that appears, he might have remained in undisturbed security, until the train was ready to start ; nor was he driven, directed, or invited, by any servant of the defendant, into a place of danger from which he was unable to rescue himself before he was run over and injured. It is perfectly manifest from the testi- mony, that the plaintiff voluntarily and deliberately, in the free exer- cise of his own judgment and discretion, and for his own convenience, took his station behind the car by which he was injured; and there is not even a scintilla of testimony to the contrary. This voluntary action of the plaintiff', and his consequent injury, cannot in any legal sense be said to have been occasioned by his expulsion from the ca- boose. They succeeded such expulsion, but they were not the natural, ordinary, or probable consequences thereof, and, therefore, not the proxi- mate result of such expulsion. Wharton on Negligence, 200, §§ 134, 138; Haley v. R. R. Co., 21 Iowa, 15. "The spontaneous action of an independent will," intervened between the expulsion from the car SECT. lY.] IIEXRY V. ST. LOUIS, KANSAS CITY & XORTH'x RY. CO. 251 and the injury. The plaintiff acted neither in precipitation, nor under excitement caused by the defendant, but freely and deliberately, and under no compulsive necessity to go where he did. If any injury had happened to him while in the act of prudently obeying the order to get out of the caboose, such injury would have been the proximate result of his expulsion; but after he was out of the caboose, he was entirely free to select his own position, and did so after some minutes of meditation and consultation as to what course he should pursue. It is perhaps pi'obable that if the plaintiff had not been ordered out of the caboose, he would not have been injured, but this hypothesi.s does not establish the legal relation of cause and effect between the expulsion and the injury. If the plaintiff had not left home he certainly would not have been injured as he was, but his lea\'ing home could not, therefore, be declared to be the cause of his injury. As the plaintiff's in- jury was neither the ordinary, natural, nor probable consequence of his expulsion from the caboose, such expulsion, however it might excite our indignation, in the absence of any regulation of the defendant to justify it, cannot be considered in this action, and the legal aspect of the case is precisely the same that it would have been if no such expulsion had taken place. It is to be regarded as if the plaintiff had gone to the caboose atid could not get in because it was locked, or, being able to get in, chose to remain outside. If the plaintiff at the time he was injured had been on his way to the caboose or otherwise lawfully crossing the track, and before crossing the same had looked and listened and could neither see nor hear an approaching train, he would undoubtedly have a right of action. But he had reached the caboose in safety, and being forbidden to remain inside, and not choos- ing to occupy the platform, or to stand in the- open spaces between the tracks, voluntarily and without any necessity therefor, put himself in a place of danger between the rails on one of the switch-tracks, with knowledge of the fact that he was in defendant's yard, where its cars were shifted and its freight trains were made up. If the plaintiff had taken a seat on the flat car and by the concussion which took place had been thrown down and run over, it certainly could not be claimed that he would be entitled to recover. He had no right as a passenger or otherwise to get on that car because he had been ordered out of the caboose in which he had a right to be. If there could be no recovery in the case put, we do not see how the plaintiff can have any greater right to recover, because he was injured in the attempt to get on said car. As the plaintiff was on the defendant's track under such circumstances as did not create any duty on its part toward him, beyond that of not wilfully injuring him, it is unnecessary to consider whether the ser- vants of the defendant were guilty of any negligence in not ha\'ing lights and a brakeman on the train backed in from the west or in not sounding a whistle or ringing a bell. Hallihan v. R. R. Co., 71 Mo. 113; Van Shaick v. R.R. Co., 43 N. Y. 527. 252 HENDRICKSON V. COMMOmVEALTH. [cHAP. III. The negligence of the plaintiff disclosed by his own testimony must debar him from recovery. We are of opinion that the circuit court erred in not sustaining the demurrer to the evidence, and its judgment will, therefore, be reversed. The other judges concur, except Norton, J., who dissents.^ HENDRICKSON v. COMMONWEALTH.' Court of Appeals of Kentucky. 1887. [^Reported 85 Kentuvly, 281.] Judge Lewis delivered the opinion of the court : — Under an indictment for the murder of his wife, appellant was con- victed of manslaughter. From the testimony of a daughter of the deceased and step-daughter of appellant, the only person present at the time, it appears that a difficulty took place at their residence at night after they had retired to bed, in the winter of 1885-86, and, in the language of the witness, occurred as follows : " The sow rooted open the door of the cabin, and they (her mother and father) fell out over driving her out, and he choked, beat, scratched, and struck her, and she knocked him down with the iron shovel, and got on him, choked him, and asked him how he felt ; and he started towards his breeches and said : ' If I had my knife — I will get my knife and I '11 cut your dog gon'd throat ; ' and that she ran out at the door and did not return that night ; that he shut the door after her and propped it with a stick of wood and went to bed." She further stated that next morning she went to look for her mother and found her lying in the snow dead, and when she started appellant told her to take her ujother's shoes and stockings. The statement to the jury, made by appellant himself, is, that the deceased commenced the fight, getting him down on the floor, wlien he choked and bit her, and she then knocked him down with an iron shovel, and got on and choked him, and then jumped np and ran out of the door, saying she would have him arrested and put in jail. lie, however, admits he said to her that if lie had his knife he would cut her, and started for his breeches. From the testimon_y of a witness it appears that the place where the deceased lay was within about one liundrefl vards of his house, and about half mile of her residence, and that in going to the place whei-e she was found she had passed by the gate of another person, and 1 See Lewis v. Flint & P. M. R. R., 54 Mich. 55. — Ed. SECT. IV.] HENDRICKSON V. COMMONIVEALTH, 253 • within twenty feet of his lionse, which was two hundred and fifty yards nearer her own residence than was the ijlace where she xlied. When found she was lying on her face dead and badly frozen, the weather being extreniel}' cold, and where she lay were signs of stirring in the snow, which was about eighteen inches deep. When she left her residence she was barefooted and had on ver^' little clothing, and along the route she took, which led through briers, there were small quanti- ties of blood and fragments of clothing that had been torn off by the briers ; and at another place she had struck her ankle against the end of a log and it bled freely. The witnesses testifj- that there were scratches on each side of her neck, and finger-prints on her throat, and prints of teeth on her left arm and back of her hands, and her legs from knees down were lacerated b}- the briers. According to the t-es- timony of a physician, she was eight months and one week gone in pregnancy ; but she had no Avound, bruise, or other mark of A'iolence that could have produced death. He also testified that apijellant was badly crippled and paralyzed in one arm, and that on the da^- of his examining trial he had a considerable bruise about his face and a bad- looking one about the eye. There is evidence that the deceased was a high-tempered woman, hard to get along with. She told a witness of fighting and whipping her husband, who was a cripple, and had but one arm he could use, though the daughter testifies that in their fights he whipped her. It further appears that she had on other occasions ran off and left her husband, and at one time she came to the house of a witness and stayed all night, leaving a young bab}- with her husband, saying to the witness that she had got mad and run off. The lower court refused to instruct the jurj", at the instance of appellant's counsel, that before finding him guiltv they must believe the death of his wife was produced by him alone and in no other way ; and also refused to instruct that in order to convict they must believe he intentionally exposed her, or forced her to expose herself, to the cold under such circumstances that her death would be the probable and natural consequence of such exposure, and that she died from such exposure ; but in lieu of those asked by his counsel, gave the follow- ing : " If the jury believe . . . that the defendant ... in sudden heat and passion, and not in his necessary or reasonably- necessar}- self- defence, used such force and violence towards his wife as to cause her to leave his house from fear of death or great bodily harm at his hands, and from exposure to cold her death was produced by the said act of the defendant, they should find him guilt}' of manslaughter," etc. " Forcing a person to do an act which causes his death renders the death the guilt}^ deed of him who compelled the deceased to do the act ; and it is not material whether the force be applied to the body or to the mind ; but if it were the latter, it must be shown there was the apprehension of immediate violence, and well-grounded from the cir- cumstances b}' which the deceased was surrounded. And it need not 254 HENDRICKSON V. COMMONW^EALTH. [cHAP. III. appear that there was n6 other wa}' of escape ; but it must appear that the step was' taken to avoid the threatened danger, and was such as a reasonal)le man might take." Russell on Crimes, 489; 3 Greenleaf on Evidence, section 142. In a case wliere the evidence was that the defendant, a husband, heat his wife and tlireatened to thr<;vv her out of tiie window and to murder her, and tliat b\- such tlireats she was so terrified that, through fear of his putting his threats into execution, she threw herself out of the window, and of the beating and bruises received b^' the fall she died, it was lield that if her death was occasioned partly by the blows, and partly by the fall, 3'et if she was constrained bv her husband's threats of further violence, and from a well-grounded apprehension of his doing such further violence as would endanger her life, he was answerable for the consequences of the fall as much as if he had thrown her out of the window himself. And in anotlier case, where the deceased, from a well-grounded a[)prehension of a further attacjv which would have endangered his life, endeavored to escape, and in so doing was fatalh' injured from anotlier cause, it was held murder. (See Wharton on Homicide, section 374, where these and other cases are cited.) The case of State v. Preslar, 3 N. C. 421, was where, after the husband had desisted from beating his wife, she went off a little distance in the yaxA and sat down, and the husband, after about five minutes, went into the house and laid upon the bed with his clothes on, and about half an hour afterwards she started, in compan}- with her son, to the house of her father, about two miles off; but when she sot within two hundred vards of her father's house she said she did not W'ish to go there until morning, it being in the night-time, and laid down on a bed-quilt in the woods. Earl}' next morning she gave notice to the inmates of the house of her presence, but was not able to walk there, and the next day died. In that case the gourt decided that as she had exposed herself thus without necessity, and there were, besides, circumstances showing deliberation in leaving her home, the husband could not be held responsible to the extent of forfeiting his life. But the court at the same time said that " if, to avoid the rage of a brutal husband, a wife is compelled to expose herself by wading through a swamp or jumping into a river, the husband is responsible for the consequences." The question before us is, whether, tested by the principles stated and illustrated, the instruction quoted correctly and full}' embodies the law ai)plieable to this case. It will be perceived that the jury were authorized, by the instruction, to convict, if they believed the accused used such force and violence as to cause the deceased to leave the house from fear of death or great bodily harm at his hands. But they were not instructed, as they should have been before convicting, to believe, nor permitted to inquire, whether or not such fear was well grounded or reasonable. Tlie jury SECT. IV.] SOUTH SIDE PASSENGER RAILWAY CO. V. TRICH. ?55 might, and from their verdict doubtless did, believe she left the house from fear of deatli or great bodily harm, yet, if they had taken into consideration the previous conduct of the deceased, her disposition and ability to fight with her husband, their cou^.i)arative physical powers, and all the circumstances proved in the case, they might not have believed her fear was well grounded or reasonable, and unless it was, the accused should not be held responsible for her death, for in such case he could not be regarded as forcing her to leave the house. The jury should have been further instructed that, to convict, they must believe the death of the wife by freezing was the natural and probable consequence of leaving the house at the time and under the circumstances. There is no evidence the accused prevented her re-entrance into the house, as assumed in the instruction in regard to murder, and it was error to make reference thereto. For the errors indicated, the judg- ment is reversed for a new trial, and other proceedings consisteut with this opinion. SOUTH SIDE PASSENGER RAILWAY CO. v. TRICH. Supreme Court of Pennsylvania, 1887. [Reported 117 Pa. 390.] On April 5, 1882, Mrs. Trich and her father, Mr. John W. McCuUy, when at the corner of Third and Smithfield Streets, Pittsburg, hailed a street car coming up Third just as it reached Smithfield Street. The cars in use were what are commonly called "bob-tails," having a driver but no conductor, with an ordinary platform and rail at the rear end, approached by steps on either side. The car started off rapidly when Mrs. Trich had one foot on the platform and the other on the step, with her hand holding the rail; and as it reached the middle 9f Smithfield, Mrs. Trich not yet having entered, the driver whipped up suddenly to avoid a collision with a runaway horse and carriage seen to be coming down Smithfield. The abrupt motion communicated to the car threw Mrs. Trich from the platform, and just as she alighted she was struck by the runaway and severely injured.^ Green, J. There is no manner of question as to what was the actual and immediate cause of the injury inflicted upon Mrs. Trich. It was an entirely undisputed fact that she was striick and injured ' The statement of evidence is omitted. — Ed. 256 SOUTH SIDE PASSENGER RAILWAY CO. l\ TRICH. [cHAP. III. by a runaway horse and buggy. All the witnesses who saw the occur- rence so testify. Thus, Mr. McCully, the father of Mrs. Trich, who was present with her at the time and was examined on her behalf, after describing her attempt to get on the car and sajnng that she was bounced off, adds: "A moment or two afterwards here comes a runa- way horse and buggy down the street, and the shaft, I suppose it was, caught her under the arm and dragged her to the street crossing and she fell away." The only other witness examined for the plaintiffs as to the facts of the occurrence, M. M. Herrington, testified: "There is a banking building there on the corner, and I saw the lady fall — fall off — and when she fell, to the best of my knowledge she kind of threw herself back this way and there was a phaeton or buggy of some kind running — a horse running down the street with a buggy — and it struck her, and they picked her up and carried her into Mr. Johnson's drug store." There was no contradiction of this testimony. But one other witness, Mrs. Vrailing, examined by the defendant, testified to the fact of the injury and she also said it was done by the buggy striking the woman. The learned court below, in the charge, said : " The e\ndence seems to me to preponderate very largely in favor of the fact that the immediate force which caused the injury to this woman was the runaway horse." This was an understatement of the testimony which might have led the jury to suppose that there was an open question, with a prepon- derance of evidence only, as to whether it was the runaway horse and buggy which inflicted the injury. The defendant had presented a point stating that it was the undisputed CAddence that Mrs. Trich was in- jured by being struck by a runaway horse, so that the question was directly, before the court. In \new of that circumstance we think the court should have specifically so charged and not left it as an open question for the jury to determine, with a mere expression of opinion that the e\idence preponderated in that direction. Assuming then, as we do, that it was the undisputed exidence that the injury was inflicted by the runaway horse and buggy, the only remaining question is whether it was the duty of the court to declare whether this was the proximate cause of the injury. The point pre- sented by the defendant asked for such an instruction, but the court refused it, sa\'ing it was a question for the jury under the evidence- In this we think there was error. In the case of West Mahanoy v. Watson, 112 Pa. 574, we reversed the court below for making just such an answer to just such a point; and upon a re\dew of the facts of the case we held that they did not constitute an instance of proximate cause as against the defendant, and therefore decided that the defend- ant's point should have been affirmed, wliich took the case from the jury. Mr. Justice Paxsoij, in delivering the opinion, said : " While it is undoubtedly true as a general proposition that the question of proximate cause is for the jury, yet it has been repeatedly held that where there SECT. IV.] SOUTH SIDE PASSENGER RAILWAY CO. V. TRICH. 257 are no disputed facts the court may determine it. It is sufficient to refer to Hoag v. The Railroad Co., 85 Pa. 293. In that case this court, following Railroad v. Kerr, 62 Pa. 353, and Railroad Co. v. Hope, 30 Pa. 373, laid down the rule as to proximate cause as follows: "In determining what is proximate cause the true rule is that the injury must be the natural and probable consequence of the negligence; such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act." Applying this rule to the facts of the present case, can it be said that the injury of Mrs. Trich was the natural- and probable consequence of the car driver's negligence in urging his horses to a faster gait? We think not. There was not a particle of evidence to show that runaway horses and vehicles were frequently, or indeed ever, seen upon Smithfield Street where this accident occurred. There was no evidence upon that subject. It was certainly not a natural consequence of a per- son being upon that street that he would be struck by a runaway horse. Nor is there the slightest reason for sa;y'ing that it would be a probable consequence. The utmost that can be said would be, that such a consequence might possibly happen. But things or results which are only possible cannot be spoken of as either probable or natural. For the latter are those tilings or events which are likely to happen and which for that reason should be foreseen. Things which are possible may never happen, but those which are natural or probable are those which do happen, and happen with such frequency or regularity as to become a matter of definite inference. To impose such a standard of care as requires, in tlie ordinary affairs of life, precaution on the part of indi\dduals against all the possibilities which may occur, is establishing a degree of responsibility quite beyond any legal limitations which have yet been declared. We are of opinion that in the facts of the present case the direct and immediately producing cause of Mrs. Trich's injury was her being struck by a runaway horse and buggy over which the defendant company had no sort of control and for which it is not responsible; and therefore we conclude that the proximate cause of the injury in the legal sense, was the collision of the horse and buggy with the person of Mrs. Trich and not the negligence of the defendant. The case of West Mahanoy v. Watson came again into this court and is reported in 116 Pa. 344. The present Chief Justice, in delivering the opinion of the court, said: "These facts narrow the case down to the single question, was the upset at the ash-heap on the township road the immediate or direct cause of the loss of the horses? As we have seen, the facts themselves answer this interrogatory in the negative and necessarily determine the case in favor of the plaintiff in error. In the case of Hoag v. Michigan Southern & Lake Shore Railroad Co., 85 Pa. 293, Mr. Justice Trunkey, then president of the Common Pleas of Ven- ango County, in his charge to the jury on the trial of the above-named 258 ISIIAJM l\ DOW. [chap. III. cause, said: 'The immediate and not the remote cause is to be consid- ered. This maxim is not to be controlled by time or distance, but by the succession of events. The question is, did the cause alleged pro- duce its effect without another cause intervening, or was it to operate through or by means of this intervening cause?' As the principle here stated was adopted by the affirmance of this court following Penn- sylvania Railroad v. Kerr, 62 Pa. 353, we may regard it as the settled law of this State." In the facts of the present case we find a perfect illustration of this principle. Mrs. Trich herself testified that when she was "bounced" from the car she fell on her feet. Immediately after, she was struck by the runaway horse and buggy and from them received her injury. The jolting from the car simply landed her on her feet and inflicted no injury. But another agency intervened, which was entirely independ- ent of any act of the defendant, and that agency alone inflicted the injury in question. Following the doctrine of the last case cited we feel clearly obliged to hold that the plaintift''s injury was inflicted by the special intervening agency stated, and therefore the defendant -is not liable. In all the cases cited, as in several others not referred to, this court finally determined them upon its own view of the facts with- out regard to the verdicts of the juries. The defendant's point should have been affirmed. Judgment reversed. ISHAM V. DOW. Supreme Court of Vermont, 1898. [Reported 70 T'/. r)SS.] RowELL, J. Dow, the intestate, a poor gunner, as he knew, with eyesight much impaired, knowing that the plaintiff and her children were alone in her husband's house, unlawfully, wantonly, and malici- ously shot at and wounded her husband's dog, lying peaceably in close proximity to the house on the land of a third person, whereupon the dog sprang up, rushed ^\^ldly and rapidly towards the house, entered it through an open door into the room where the plaintiff was, ran vio- lently and forcibly against her, knocking her down and injuring her; and the question is, whether the estate is liable for it. The defendant says that in order to recover the plaintiff must es- tablish two things, namely, negligence on the part of Dow, and that SECT. IV.] ISHAM V. DOW. 259 her injury resulted proximately therefrom, and that the case shows neither, as it does not show that Dow owed her any legal duty, nor that his act was the proximate cause of the injury. But we cannot adopt this \'iew. The intestate unlawfully, wantonly, and maliciously shot at the dog, intending, we will assume, to kill it, but not knowing whether he would or not, and not knowing what would happen if he did not, and by his wanton act the dog was set wildly in motion, and that motion, thus caused, continued, without the inter- vention of any other agency, and without power on his part to control it, until the plaintiff's injury resulted therefrom. In these circum- stances the law treats the act of the intestate as the proximate cause of the injury, whether the injury was, or could have been, foreseen or not, or was or not the probable consequence of the act, for the necessary relation of cause and effect between the act and the injury is established by the continuous and connected succession of the intervening events. This is the universal rule when the injurious act is wanton. In 16 Am. and Eng. Ency. of Law, 434, the true principle is said to be, that he who does such an act is liable for all the consequences, however remote, because the act is quasi criminal in its character, and the law conclusively presumes that all the consequences were foreseen and intended. But it is not necessary in this State, certainly, that the act should be wanton in order to impose liability for all the injurious consequences. If it is voluntary and not obligatory it is enough. In Vincent v. Stinehour, 7 Vt., at p. 66, it is said that for such an act the doer is answerable for any injury that may happen by reason thereof, whether by accident or carelessness. In Wright v. Clark, 50 Vt. 130, the defendant shot at a fox— that the plaintiff's dog had driven to cover, and accidentally hit the dog, and he was held liable, because the shooting at the fox was voluntary, and furnished no excuse for hitting the dog, though he did not intend to hit him. The same rule was applied at riisi prius without exception in Taylor v. Hayes, 63 Vt. 475, where the defendant shot at a partridge and accidentally hit a cow. So in Bradley v. Andrews, 51 Vt. 530, the defendant voluntarily discharged an explosive missile into a crowd and hurt the plaintiff, and it was held that, 'as the act was voluntary and wTongful, the defendant was liable, and that his youth and inexperience did not excuse him. The rule is the same here in negligence cases, and may be formulated thus: When negligence is established, it imposes liability for all the injurious consequences that flow therefrom, whatever they are, until the intervention of some diverting force that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law's notice. But in administering this rule, care must be taken to distinguish between w'hat is negligence and what the liability for its injurious consequences. On the question of what is negligence, it is material to consider what a prudent man might reasonably havt^ anticipnted; but when negligence is once estab- 260 iSHAJVi V. DOW. [chap. III. lished, that consideration is entirely immaterial on the question of how far that negligence imposes liability. This is all well shown by Stevens V. Dudley, 56 Vt. 15S, and Gilson v. The Delaware & Hudson Canal Co., 65 Vt. 213. The rule is the same in England, as will be seen by referring to the leading case of Smith v. The London & South-Western Railway Co., L. R. 6 C. P. 14, in the Exchequer Chamber. In Sneesby v. The Lancashire & Yorkshire Railway Co., L. R. 1 Q. B. D. 42, a herd of plaintiff's cattle were being driven along an occupation road to some fields. The road crossed a siding of the defendant's railway on a level, and when the cattle were crossing the siding the defendant's servants negligently sent some trucks down the siding amongst them, which separated them from the drovers and so frightened them that a few rushed away from the control of the drovers, fled along the occupation road to a garden some distance off, got into the garden through a defec- tive fence, and thence on to another track of the defendant's railway and were killed ; and the question was whether their death was not too remote from the negligence to impose liability. The court said that the result of the negligence was twofold : first, that the trucks separated the cattle, and second, that the cattle were frightened and became infuriated and were driven to act as they would not have done in their natural state; that everything that occurred or was done after that must be taken to have occurred or been done continuously; and that it was no answer to say that the fence was imperfect, for the question would have been the same had there been no fence there. Then lia- bility was made to depend not on the nearness of the wrongful act, but on the want of power to divert or avert its consequences; and it con- tinued until the first impulse spent itself in the death of the cattle. See Ricker v. P>eeman, 50 N. H. 420; 9 Am. Rep. 267; Alabama, etc., R. R. Co. V. Chapman, 80 Ala. 615. Ellis V. Cleveland, 55 Vt. 358, is not in conflict with the Vermont cases above cited, as is supposed, for there there was no casual connec- tion between the wrongfid act and the injury complained of, and so there could be no recovery. As illustrative of non-liability for damage flowing from an intermediate and independent cause operating between the wTongfuI act and the injury, see Holmes v. Fuller, 68 Vt. 207. Ryan v. The New York Central R. R. Co., 35 N. Y. 210, is relied on by the defendant. The Pennsylvania R. R. Co. v. Kerr, 62 Pa. St. 353, is a similar case. It is said in Milwaukee, etc., R. R. Co. i". Kellogg, 94 \J. S., at p. 474, that these cases have been much criticised; that if they were intended to hold that when a building has been negligently set on fire, and a second building is fired from the first, it is, a conclu- sion of law that the owner of the second has no remedy against the negligent wrongdoer, they have not been accepted as authority for such a doctrine even in the State where they were made, and are in conflict with numerous cases in other jurisdictions. Judge Redfield says in 13 Am. Law Reg. N. S. 16, that these cases have not been coun- SECT. IV.] TOWALIGER FALLS POWER CO. V. SBIS. 261 tenanced by the decisions in other States. And Judge Cooley says that a different view prevails in England and most of the American States; that the negligent fire is regarded as a unity; that it reaches the last building as a direct and proximate result of the original neg- ligence, just as a rolling stone put in motion down a hill, injuring several persons in succession, inflicts the last injury as a proximate result of the original force as directly as it does the first, though if it had been stopped on the way and started again by another person, a new cause would thus have intervened, back of which any subsequent injury could not be traced; that proximity of cause has no necessary connection with contiguity of space nor nearness of time. Cooley on Torts (1st ed.), 76. Judgment reversed and cause remanded. TOWALIGER FALLS POWER CO. v. SIMS. Court of Appeals, Georgia, 1909. [Reported 6 Ga. A pp. 749.] Powell, J. Sims sued the Towaliger Falls Paper Company, al- leging that during the year 1906 he was a tenant residing on certain lands in Monroe County, that the defendant built a high dam across the Towaliger River, some distance below his residence, and backed a large body of water on and over a great area of land near his home; that the land so submerged was covered with trees and other vegeta- tion; that the ponding of this water and the submerging of the vege- tation caused malaria. . . . By amendment he set up . . . that mos- quitoes which were bred in the pond, and which had not pre^'iously infested it, became a medium for the transmission of malaria, and did transmit it to himself and his family, causing them to have malarial fever, which they otherwise would not have had. He prayed for dam- ages on account of the injury to the use of his premises, on account of his own sickness, pain, and suffering, on account of the loss of the services of his wife and minor children, and on account of expenses in- curred in connection therewith.^ One of the contentions of the plaintiff in error is that if, as the testimony of the expert \\itnesses strongly indicated, the malarial fever wdth which the plaintiff and his family, according to his testi- mony, suffered was produced in them by the bite of a particular kind of mosquito, which was harmless and incapable of carrying the disease unless it had first bitten some other human being already infected with malaria, the relation between the maintenance of the pond, even though ^ Only so much of the opinion as discusses this amendment is given. — Ed. 262 STONE V. BOSTON & ALBANY R.\ILROAD CO. [ciL\P. III. it afPorded a place for the breeding of the mosquitoes, and the final communication of the disease to the plaintiff, was too remote. Counsel ingeniously and, we suspect, somewhat facetiously, argue that the mos- quito is an animal feroe naturae, and that in an action for damages done by a dangerous animal, scienter on the part of the person harboring it is a necessary allegation; citing Cox v. Murphey, 82 Ga. 623 (9 S. E. 604), and Clarendon v. McClelland, 89 Tex. 483 (31 L. R. A. 669, 59 Am. St. 70, 34 S. W. 98, 35 S. W. 474). Without making any specific classification of mosquitoes, we hold that they are a common pest, and that the maintenance of a place where they breed in unusual numbers is such a menace to persons residing nearby as to make that place ordinarily a nuisance; and that if, as a result of the maintenance of such a place, the mosquitoes do in fact breed there, as they other- wise would not have bred, and become inoculated with malaria, and, in accordance with what is naturally to be expected, fly abroad and communicate malarial fevers, the proprietor of the breeding place is, in legal contemplation, proximately the author of the damage. STONE V. BOSTON & ALBANY RAILROAD CO. Supreme Judicial Court of Massachusetts, 1898. [Reported 171 Mass. 536.] Allen, J. This is an action of tort to recover for the loss of the plaintiff's buildings and other property by fire, under the following cir- cumstances. The defendant owned and operated a branch railroad extending from its main line at South Spencer to the \allage of Spencer, and had at the Spencer terminus a passenger station, a freight house, and a freight yard, all adjoining a public street. On the side of the freight house, and extending beyond it about seventy-five feet, was a wooden platform about eight feet wide and four feet high, placed upon posts set in the gi-ound, the under side being left open and exposed. The main tracks ran along on the front side of this platform and freight house, and on the rear of the platform there was a freight track, so near as to be convenient to load and unload cars from and upon it. The plaintiff was engaged in the lumber business, buiying at wholesale, and selling at wholesale and retail, manufacturing boxes, etc. His place of business comprised several buildings, some of which were across the street from the defendant's buildings; and his principal buildings were about seventy-five feet from the place on the defendant's premises, beneath the platform, where the fire originated. The e\adence tended to show that the platform was mostly used for the storing of oil which had been brought upon the railroad, until it was taken away by the con- signees ; and that the platform had become thoroughly saturated unth oil which had leaked from the barrels, and which not only saturated the SECT. IV.j STONE V. BOSTON & ALBANY KA.ILRO.U) CO. 263 platform but dripped to the ground beneath. More or less rubbish accumulated from time to time under the platform, and was occasion- ally carried away. The evidence tended to show that this space below had been cleaned out two or three weeks before the fire. On the day of the fire, September 13, 1893, from twenty-five to thirty barrels of oil and oil barrels were upon the platform. Some were nearly or quite empty, some were partly full, but most of them were probably full or nearly full. The only exndence to show how the fire originated tended to prove that one Casserly, a teamster, brought a load of boots to be shipped upon a car which was standing upon the track on the rear side of the platform; that he was smoking a pipe; that he stepped into the car to wait for the defendant's foreman of the yard, who was to help him unload the boots; that in stepping in he stubbed his toe and knocked some of the ashes and tobacco out of his pipe; that he re- lighted the pipe with a match, and threw the match down; and that at this time he was standing in the door of the car, facing the platform. It must be assumed, upon the evidence, that the fire caught upon the ground underneath the platform from the match thrown down by Cas- serly. All efforts to extinguish the fire failed; it spread fast and was almost immediately upon the top of the platform, running up a post according to one of the witnesses, and very soon it reached the barrels of oil, which began to explode, and the fire communicated to the plaintiff's buildings, and they were burned. There was e\adence tending to show that all of the oil had been upon the platform for a longer time than forty-eight hours. According to the testimony of the plaintiff, the platform was never to his knowledge empty of oil and oil barrels, it was completely saturated with oil, and that general condition of things, so far as the platform was concerned, had existed for eight years, ever since he himself had been there. Upon the e\n- dence introduced by the plaintiff, the court directed a verdict for the defendant. The plaintiff in substance contends before us that the defendant was negligent in storing oil upon the platform, taking into consideration the condition of the platform and of the ground and material under it, and the length of time during which the oil had been allowed to remain there; that, irrespectively of the question of negligence, the platform with the oil upon it constituted a public nuisance, especially in \aew of Pub. Sts. c. 102, § 74, proxdding that oil composed wholly or in part of any of the products of petroleum shall not be allowed to remain on the grounds of a railroad corporation in a town for a longer time than forty-eight hours, without a special permit from the selectmen; that the defendant is responsible for the damage resulting from the public nuisance, whether the act of starting the fire was due to a third person or not; and that the question should have been submitted to the jury whether the damage to the plaintiff's property was the natural and prox- imate consequence of the defendant's tort. 264 STONE i\ BOSTON & ALBANY liAILROAD CO. [CTIAP. III. Upon the e\adence, the supposed tort of the defendant, whether it be called negligence or nuisance, appears to have been limited to the keeping of oil too long upon the platform. Assuming this oil to have been a product of petroleum, and so within the statute cited, neverthe- less the defendant as a common carrier was bound to transport it, and deliver it to the consignees. The oil, as is well known, was an article of commerce and in extensive use, and the defendant was bound to transport it and to keep it for a reasonable time after its arrival in Spencer, in readiness for delivery. There was no evidence that the oil was liable to spontaneous ignition, or that the platform was an un- suitable place for its temporary storage till it could be removed, or that the defendant could have prevented the escape of oil upon the platform from leaky barrels. But we may assume without discussion that the defendant was in fault in keeping the oil there so long, and that if the oil had been removed witliin forty-eight hours after its arrival the fire would probably not have been attended with such disastrous con- sequences. Nevertheless the question remains, and in our view this becomes the important and decisive question of the case, whether, assuming that the defendant was thus in fault, the plaintiflF introduced any e\'idence which would warrant a finding by the jury that the damage to his prop- erty was a consequence for which the defendant is responsible; or, in other words, whether the act of Casserly in starting the fire was such a consequence of the defendant's original wrong in allowing the oil to remain upon the platform that the defendant is responsible to the plain- tiff for it. In approaching this question, it must be borne in mind that Casserly was in no sense a servant, agent, or guest of the defendant. He brought a load of goods to the defendant's station to be carried upon the de- fendant's railroad. The defendant was bound by law to accept and carry them. It could not lawfully exclude Casserly from its grounds. By Pub. Sts. c. 112, § 1S8, it was bound to give all persons reasonable and equal terms, facilities, and accommodations for the transportation of merchandise upon its railroad, and for the use of its depot and other buildings and grounds. Casserly came there in his own right, and the defendant is not responsible for him in the same way that perhaps it might be responsible for a servant, agent, or, according to some statements of the law, guest. Lothrop v. Thayer, 138 Mass. 466. It is also to be borne in mind that this was not a case of spontaneous ignition of a substance liable to ignite spontaneously, as was the case in Vaughan v. Menlove, 3 Bing. N. C. 468. Nor did the defendant owe to the plaintiff the duties of a carrier of passengers or freight towards its customers, or any other duties growing out of a contract with the plain- tiff. There was no contract of any kind between the plaintiff and the defendant. The rule is very often stated that in law the proximate and not the SECT. IV.]" STONE L\ BOSTON & ALBANY RAILROAD CO. 285 remote cause is to be regarded ; and in applying this rule it is sometimes said that the law will not look back from the injurious consequence beyond the last sufficient cause, and especially that where an intelligent and responsible human being has intervened between the original cause and the resulting damage, the law will not look back beyond him. This ground of exonerating an original wrongdoer may be found discussed or suggested in the following decisions and text-books, amongst others: Clifford V. Atlantic Cotton Mills, 146 Mass. 47; Elmer v. Fessenden, 151 Mass. 359; Hayes v. Hyde Park, 153 Mass. 514; Freeman v. Mercantile Accident Association, 156 Mass. 351; Lynn Gas & Electric Co. V. Meriden Ins. Co., 158 Mass. 570; Mutual Ins. Co. v. Tweed, 7 Wall. 44; Milwaukee & St. Paul Railway v. Kellogg, 94 U. S. 469; Washington & Georgetown Railroad v. Hickey, 166 U. S. 521; Reiper V. Nichols, 31 Hun, 491; Mars v. Delaware & Hudson Canal, 54 Hun, 625; Read v. Nichols, 118 N. Y. 224; Lea\att v. Bangor & Aroostook Railroad, 89 Maine, 509; Cuff v. Newark & New York Railroad, 6 Vroom, 17; Delaware, Lackawanna & Western Railroad v. Salmon, 10 Vroom, 299; Curtin v. Somerset, 140 Penn. St. 70; Pennsylvania Co. V. Whitlock, 99 Ind. 16; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. Rep. 400, 405; Shearman, Negl. §§ 38, 666; Whart. Negl. §§ 134 et seq. It cannot, however, be considered that in all cases the intervention even of a responsible and intelligent human being will absolutely exon- erate a preceding wrongdoer. Many instances to the contrary have occurred, and these are usually cases where it has been found that it was the duty of the original wrongdoer to anticipate and pro\ide against such intervention, because such intervention was a thing likely to happen in the ordinary course of events. Such was the case of Lane V. Atlantic Works, 111 Mass. 136, where it was found by the jury that the meddling of young boys with a loaded truck left in a public street was an act which the defendants ought to have apprehended and pro- vided against, and the verdict for the plaintiffs was allowed to stand. In the carefully expressed opinion by Mr. Justice Colt the court say: "In actions of this description, the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original neg- ligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise." According to this statement of the law, the ques- tions in the present case are, W^as the starting of the fire by Casserly 266 STONE V. BOSTON & ALBANY RAILROAD CO. [cHAP. III. the natural and probable consequence of the defendant's negligent act in leaving the oil upon the platform? According to the usual ex- perience of mankind, ought this result to have been apprehended? The question is not whether it was a possible consequence, but whether it was probable, that is, likely to occur, according to the usual expe- rience of mankind. That this is the true test of responsil)ility appli- cable to a case like this has been held in very many cases, according to which a wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is some- times said, is only remotely and slightly probable. A high degree of caution might, and perhaps would, guard against injurious consequences which are merely possible; but it is not negligence, in a legal sense, to omit to do so. There may not always have been entire consistency in the applica- tion of this doctrine; but, in addition to cases of boys meddling with things left in a public street, courts have also held it competent for a jury to find that the injury was probable, although brought about by a new agency, when heavy articles left near an opening in the floor of an unfinished building, or in the deck of a vessel, were accidentally jostled so that they fell upon persons below; McCauley v. Norcross, 155 Mass. 584; The Joseph B. Thomas, 81 Fed. Rep. 578; when sheep, allowed to escape from a pasture and stray away in a region frequented by bears, were killed by the bears; Gilman v. Noyes, 57 N. H. 627; and when a candle or match was lighted by a person in search of a gas leak, with a \aew to stop the escape of gas; Koelsch v. Philadelphia Co., 152 Penn. St. 355; and in other cases not necessary to be specially referred to. In all of these cases, the real ground of decision has been that the result was or might be found to be probable, according to common experience. , Without dwelling upon other authorities in detail, we will mention some of those in which substantially this xdew of the law has been stated. Davidson v. Nichols, 11 Allen, 514; McDonald i'. Snelling, 14 Allen, 290; Tutein v. Hurley, 98 Mass. 211; Hoadley v. Northern Transportation Co., 115 Mass. 304; Hill v. Winsor, 118 Mass. 251; Derry i'. Flitner, 118 Mass. 131; Freeman v. Mercantile Accident Asso- ciation, 156 Mass. 351; Spade v. Lynn & Boston Railroad, 168 Mass. 285, and cases there cited; Cosulich v. Standard Oil Co., 122 N. Y. 118; Rhodes v. Dunbar, 57 Penn. St. 274; Hoag v. Lake Shore & Michigan Southern Railroad, 85 Penn. St. 293; Behling v. Southwest Penn. Pipe Lines, 160 Penn. St. 359; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. Rep. 400, 405, 406; Haile v. Texas & Pacific Railway, SECT. IV.] STONE V. BOSTON & ALBANT RAILRO.YD CO. 267 60 Fed. Rep. 557; Clark v. Chambers, 3 Q. B. D. 327; Whart. Negl. (2d ed.) §§ 74, 76, 78, 138-145, 155, 955; Cooley, Torts, 69, 70; Add. Torts, 40; Pollock, Torts, 388; Mayne, Damages, 39, 47, 48. For a recent English case involving a question of remoteness, see En gel- hart V. Farrant, [1897] 1 Q. B. 240. The rule exempting a slanderer from damages caused by a repetition of his words rests on the same ground. Hastings v. Stetson, 126 Mass. 329; Shurtleff v. Parker, 130 Mass. 293; Elmer v. Fessenden, 151 Mass. 359. Tried by this test, the defendant is not responsible for the conse- quences of Casserly's act. There was no close connection between it and the defendant's negligence. There wp.s nothing to show that such a consequence had ever happened before, during the eight years covered by the plaintiff's testimony, or that there were any existing circum- stances which made it probable that it would happen. It was of course possible that some careless person might come along and throw down a lighted match where a fire would be started by it. This might, in- deed, have happened upon the plaintiff's own premises, or in any other place where inflammable materials were gathered. But it was not according to the usual and ordinary course of events. In failing to anticipate and guard against such an occurrence or accident, the defendant "saolated no legal duty which it owed to the plaintiff. What qualification, if any, of this doctrine should be made in case of the storage of high explosives, like gunpowder and dynamite, we do not now consider. See Rudder v. Koopmann, 116 Ala. 332; Kinney v. Koopmann, 116 Ala. 310; Rhodes v. Dunbar, 57 Penn. St. 274, 290. The plaintiff, however, contends that this question should have been submitted to the jury. This course would have been necessary, if material facts had been in dispute. But where upon all the evidence the court is able to see that the resulting injury was not probable, but remote, the plaintiff fails to make out his case, and the court should so rule the same as in cases where there is no sufficient proof of negli- gence. McDonald v. Snelling, 14 Allen, 290, 299. In Hobbs v. London & Southwestern Railway, L. R. 10 Q. B. Ill, 122, Blackburn, J. said : " I do not think that the question of remoteness ought ever to be left to a jury; that would be in effect to say that there shall be no such rule as to damages being too remote." It is common practice to with- draw cases from the jury on the ground that the damages are too re- mote. Hammond v. Bussey, 20 Q. B. D. 79, 89; Read v. Nichols, 118 N. Y. 224; Cuff v. Newark & New York Railroad, 6 Vroom, 17; Behling v. Southwest Penn. Pipe'Lines, 160 Penn. St. 359; Goodlander Mill Co. V. Standard Oil Co., 63 Fed. Rep. 400, 405, 406; Pennsylvania Co. V. Whitlock, 99 Ind. 16; Carter v. Towne, 103 Mass. 507; Hoad- ley V. Northern Transportation Co., 115 Mass. 304; Hutchinson V. Boston Gas Light Co., 122 Mass. 219; Elmer v. Fessenden, 151 Mass. 359. The plaintiff further contends that the negligence of the defendant 2G.S STOXE l\ BOSTON c^ ALBANY RAILROAD CO. [cHAP. III. in keeping the oil upon the platform was concurrent with the careless act of Casserly, and that therefore it was a case where two wrongdoers acting at the same time contributed to the injurious result. But this is not a just view of the matter. The negligence of the defendant pre- ceded that of Casserly, and was an existing fact when he intervened, just as in Lane v. Atlantic Works, 111 Mass. 136, the negligence of the defendants in leaxdng their loaded truck in the street preceded that of the boys who meddled with it. The fact, if established, that the defendant's platform with the oil upon it constituted a public nuisance is immaterial, under the circumstances of the present case. If the plaintiff proved a nuisance, he need not go further and show that it was negligently maintained. But we have assumed the existence of negligence on the part of the defendant. Illegality on the part of a defendant does not of itself create a liability for remote consequences, and illegaUty on the part of a plaintiff does not of itself defeat his right to recover damages. The causal connection between the two still remains- to be established. Hanlon v. South Boston Horse Railroad, 129 Mass. 310; Hyde Park r. Gay, 120 Mass. 589; Hall r. Ripley, 119 Mass. 135; Damon v. Scituate, 119 :Mass. 66; Kidder v. Dunstable, 11 Gray, 342; Hayes V. Michigan Central Railroad, 111 U. S. 228, 241. In order to maintain a personal action to recover damages for a public nuisance, the plain- tiff must show that his particular loss or damage was caused by the nuisance, just as in case of any other tort. Wesson r. Washburn Iron Co., 13 Allen, 95; 101, 103; Stetson v. Faxon, 19 Pick. 147, 154. And in considering the question of remoteness, it makes no difference what form of wrongdoing the action rests upon. Sherman v. Fall River Iron Works, 2 Allen, 524; The Notting Hill, 9 P. D. 105, 113; Mayne, Damages, 48, note. Without considering other grounds urged by the defendant, a major- ity of the court is of opinion that, upon the evidence, the defendant was not bound, as a matter of legal duty, to anticipate and guard against an act like that of Casserly, he being a stranger coming upon the defen- dant's premises for his own purposes and in his own right. Exceptions overruled.^ 1 See also Jennings r. Davis, 187 Fed. 703. — Ed. SECT. IV.] DE CAMP I'. SIOUX CITY. 269 DE CAMP V. SIOUX CITY. , Supreme Court of Iowa, 1888. [Reported 74 la. 392.] RoTHROCK, J. There is but little controversy as to the material facts in the case. The plaintiff is an expressman. He used an ex- press wagon and one horse in carrying on his business. On the nine- teenth of September, 1885, he was driving along F'ourth street, in said city, his horse going in a walk. He was met in the street by a butcher's wagon, in which there were two men. The wagons collided, by reason of which the plaintiff was violently thrown out upon the ground, his wagon upset, his wagon-bed fell on top of him, his horse ran away, and there was a general smash-up of his wagon. The injury to the plaintiff was not, however, occasioned by the running of his horse, but by the collision with the butcher's wagon. One of the men in the butcher's wagon, who was a witness for the plaintiff, testified that said wagon was driven, at the time of the accident, at the rate of ten to fifteen miles an hour. All of the other udtnesses who testified on this point concur in the statement that said wagon was driven very fast. A witness for plaintiff", who saw the whole occurrence, stated that the team was going at the rate of fifteen miles an hour, and did not check speed until they were stopped by the collision. Another witness stated that the team was traveling "at a great rate," and "terrible fast." There was a city ordinance in force at the time of the accident prohibiting the driving of any vehicle in any street of the city faster than at the rate of six miles an hour, or driving " in such manner as to come in collision with or strike any other person or object." The plaintiff claims that the city is liable for his injures, l)ecause it permitted the street-car tracks which were in the street to become out of repair to such an extent that the iron rails were so much above the surface of the street that, as the vehicles approached each other, the plaintiff and the dri\'er of the butcher's wagon could not turn out so as to avoid the collision, because they could not pull the wheels of the wagons over the rails, although they endeavored to do so; that the wheels of the wagons slid along the rails, and thus caused the collision. The defendant requested the court to give to the jury the following, among other instructions: "If the jury find from the evidence that the accident l)y which the plaintiff was injured was caused by the negligence of the city in not keeping its street in repair, combined with the acts of a third party for which the city was not responsible, and would not have hap- pened but for the acts of such third party, then the city is not liable." " If the jury find from the e\ddence that, although the defendant was negligent in keeping its streets in repair at the time and place where 270 DE CAMP V. SIOUX CITY, [cHAP. III. the accident occurred, the accident would not have happened to the plaintiff by reason thereof without the driving of the team of lbs upon the street-railway track in the manner in which it was driven, and that the driver of said team and wagon of said lbs, in dri\ang upon said railway track at the time and in the manner and at the rate of speed he did, was not using ordinary care, then the defendant is not liable." These instructions were refused, and the court, on its own motion, charged the jury, as to this feature of the case, as follows : "The jury are instructed that, in general, the negligence of third parties, concurring with that of the defendant to produce an injury, is no defense; but if the jury find from the e\ndence that the accident in question was caused or occasioned by the negligence or carelessness of the driver of the team that collided with plaintiff's team, without any fault or negligence on the part of defendant concurring therein, then the plaintiff cannot recover; but if you find that the defendant was negligent, under this charge, in permitting the defect in the street at the time of the accident, and at the place as alleged, and that such negligence and defect contributed to produce and occasion the injury in question then the fact that the driver of the wagon colliding with plaintiff's team was negligent would not defeat plaintiff's right to recover." The defendant insists that these rulings of the court are erroneous and we think his position must be sustained. As we have said, there is no question but that the butcher's wagon was driven in a careless and negligent manner. Not only this, its rate of speed was reckless, dan- gerous, unlawful and criininal. Under the ordinances of the city its driver was liable to a fine of one hundred dollars, or imprisonment for thirty days. The effect of the collision was perhaps stronger eWdence of the reckless conduct of the driver than the testimony of the \vitnesses. No such a general smash-up would have occurred if the butcher's wagon had been driven as it ought to have been. Under the undisputed facts of the case, conceding that the street was out of repair, the plaintiff, to say the least, received his injuries by reason of the combined negligent acts of the city and the driver of the butcher's wagon. More than this, the reckless driving was the immediate and proximate cause of the injury. There is no warrant in the CAadence for a finding that, if the team had been driven at a lawful and proper rate of speed, the collision would have nevertheless injured the plain- tiff. This being so, the condition of the street was not the direct and proximate cause of the injury. \Yhatever the rule may be in other states, we think that the law in tliis state is settled that, under such circumstances, there can be no recovery against the city. See Dubuque Wood & Coal Ass'n v. City of Dubuque, 30 Iowa, 184, and Knapp V. Sioux City & Pac. Ry. Co., 65 Iowa, 91. Reversed.^ ^ See also Sweet v. Perkins, 196 N. Y. 482, 90 N. E. .50. SECT. IV.] WASHINGTON & GEORGETOWT^ R. R. CO. V. IlICKEY. 271 WASHINGTON & GEORGETOWN RAILROAD CO. v. HICKEY. Supreme Court of the United States, 1897. [Reported 166 U. S. 521.] Peckham, J., delivered the opinion of the court. This action was brought by the defendants in error, who are hus- band and wife, to recover from the defendants (the one being a horse car company and the other a steam railroad company) damages for personal injuries sustained by the wife on account of the alleged neg- hgence of the servants of the defendants. The facts of the negligence were alleged in the declaration, and each defendant filed a plea of not guilty, upon which issue was joined. A trial was had in tlie Supreme Court of the District of Columbia, resulting in a verdict for the plain- tiffs, the judgment upon which ha\dng been affirmed by the Court of Appeals, the defendants have brought the case here for review. On the trial evidence was given tending to show these facts: Mrs. Hicke}', one of the plaintiffs, who was liA-ing with her husband in the city of Washington, left her home therein on the morning of the 12th day of August, 1889, and took a street car of the defendant horse rail- road company at the corner of Pennsylvania Avenue and Seventh Street for the purpose of going south along the last-named street; the car was a summer car and crowded wdth people going to the river on an excursion ; she sat on the outside of the third seat in the front of the car and in a very small space; the people seemed in a hurry and some of them called out frequently to the driver to "hurry up"; upon coming to the crossing of Seventh Street and Maryland Avenue, where the car tracks of the two corporations intersect each other, the steam cars were seen approaching the intersection at quite a rapid rate; the street car stopped upon coming to the crossing, as the railroad gates were lowered ; then and before the steam train came on they were raised, and the street car was started, and after it got on the track of the steam cars the gates were again lowered, shutting in the street car, the gates coming down, one on the car and one just behind the horses. When the street car entered upon the steam car crossing, the train on the tracks of the latter company was still mo\'ing quite rapidly towards the crossing and but a short distance away and in plain sight from the horse car; after getting partially upon the steam railroad track, the gates, as stated, came down, and then they were again raised, and the driver of the horse car whipped up his horses and the car got across. Before the horse car had crossed the tracks, the steam cars were coming pretty fast; the men who were sitting down in the horse car all got up and the women commenced screaming; the people on the horse car rushed to get off, and Mrs. Hickey was, in the course of the excitement and commotion, pushed off the car and was badly and permanently in- jured; when she fell, the steam cars were coming down and the horse 272 WASHINGTON & GEORGETOWN K. R. CO. ('. HICKEY. [ciL\P. III. car (the gates having been raised) was then driven across to the other side; the train was so close to the horse car that it just got off the track in time to escape being run over, while Mrs. Hickey says she was so near the steam car tracks when the train passed that she felt the air from the engine upon her head. One of the witnesses said that the driver of the street car first noticed the train when he was about 50 feet from the steam car track. His car was moving at the rate of four and a half to five miles an hour, and the train was then between Eighth and Ninth streets, about 300 feet from Seventh Street. The driver wanted to cross the steam car tracks before the gate went down, and thought he could do so without danger; he did not see that the gates were being lowered as he approached, and did not put on the brakes or make other effort to stop the car until "he got the bell." The gates were once lowered and then raised to let the car pass, and then they were again lowered, and it was when they were lowered the second time that they came down between the car and the horses, penning the car in on the steam track. The gates were raised again, and the driver succeeded in getting the horse car across the track before the train approached. The counsel for the horse car company claimed that the cause of the accident was the commotion immediately preceding it, and by reason of which the plaintiff was pushed from the car and injured, and the question was, what caused the commotion? He urged that the com- motion was caused by the improper and negligent lowering of the gates at the time when they penned the horse car between them and prevented its progress across the tracks of the steam car company, and that if the gates had not been thus lowered the horse car would have had plenty of time to cross, and there would have been no commotion and no acci- dent. He, therefore, made several requests to the court to charge the jury upon that subject. The point of such requests was that if the jury should find that the commotion and confusion which led to the accident were caused by the sudden and negligent lowering of the gates upon the street car, which the driver of that car had no reason to believe would be thus lowered, and if the driver could have crossed in safety but for such lowering, then the horse car company was not responsible, and no recovery could be had against it. A further request was made to charge that there was no evidence that the management of the horse car entered into or contributed to the negligence of the gatekeeper, and if the jury should find that the injury was caused by the negligence of the gatekeeper, the verdict must be in favor of the horse car company; also, that if the jury should find that the horse car would have passed the steam car track without in- jury to the plaintiff except for the lowering of the gates upon the horse car, and that the lowering was the cause of the injury and was an act of negligence on the part of the gatekeeper, then the horse car company was not responsible for the injury; also, that if the jury SECT. IV. J WASHINGTON & GEORGETOWN R. R. CO. V. HICKEY. 273 found the injury to have been the result of negligence of the gatekeeper in the management of the gates, and that but for such negligence the injury would not have been sustained by the plaintiff, and that the driver of the horse car did not know and had no reason to believe that the gatekeeper would be negligent, then the plaintiffs were not entitled to recover against the horse car company. The refusal of the court to charge as requested was excepted to and is now made a ground for the reversal of the judgment by this court. In his argimient here the counsel for the horse car company said: "The gist of all of which instructions is that no matter whether it was negligence or not for the street car company to drive its car upon the steam car track, yet, if the jury found that it was the lowering of the gates (and not the negligence, if it were such, in going upon the steam track) that caused the injury, then they should find for the street car company. The gist of the instructions is that it was the low- ering of the gates that caused the injury." The ^dce in all this argument, as we think, consists in the attempted separation into two distinct causes (remote and proximate) of what in reality was one continuous cause. It leaves out of view the action of the driver of the street car as to whether he was or was not negligent, provided the jury should say the accident would not have happened if the gates had not been improperly lowered. That is, although the jury should find that the act of the driver was negligent, and by reason of that negligence his car was placed in such a position that the negligent lowering of the gates concurred with his action in producing the in- jury, the street car company must be absoh^ed, if the jury should be able to say that but for such negligent lowering of the gates (which the driver of the horse car had no reason to foresee) the accident would not have happened. This is an attempt to separate that which upon the facts in this case ought not to be separated. The so-called two negli- gent acts were, in fact, united in producing the result, and they made one cause of concurring negligence on the part of both companies. They were in point of time substantially simultaneous acts and parts of one whole transaction, and it would l)e improper to attempt a separa- tion in the manner asked for by the counsel for the horse car company. In this connection the court did charge the jury as follows : "It is claimed by the counsel for the Washington and Georgetown Railroad Company that there was ample time for its cars to pass over the track of the Baltimore and Potomac Railroad Company before the train* of the latter would reach the point of intersection of the two tracks, and that as the car of the former company approached the track of the latter the gates were up, and that the horses drawing the car had reached the steam car track when the gatekeeper suddenly lowered the gates, and thereby produced whatever alarm or confusion the evidence shows ensued among the passengers, including the plain- tiff, on the street car. 271 WASHINGTON & GEORGETOWN R. R. CO. V. HICKEY. [cHAP. III. " If you find the e\ndence establishes these facts, as thus claimed by the Washington and Georgetown Railroad Company, it would be en- titled to your verdict in its favor." The alleged negligence of the horse car driver consisted in endeavor- ing to cross at all, under the circumstances, until after the passage of the train on the steam railroad. Upon the evidence the jury would have been justified in finding that he had no right to indulge in any close calculation as to time in attempting to cross the steam car tracks before the train thereon reached the point of intersection; that it was a negligent act in making the attempt under a state of facts where the least interruption or delay in the crossing over by the horse car would probably lead to an accident. In this view of the evidence and finding, it was not material that the driver had no ground to expect the partic- idar negligent act of lowering the gates and the consequent obstruc- tion to his passage across the steam car tracks, or that he would have had time to cross if the delay thus occasioned had not occurred. The jury had the right to find it was negligent to cause his car to be so placed that any delay might bring on a collision. The apparent lia- bility to accident, if any delay should occur from any cause whatever, was plain, and such fact would support a finding of negligence in at- tempting to cross before the steam car train had passed. In such case it would be no excuse that the particular cause of a possible or prob- able delay, viz., the lowering of the gates, was not anticipated. The important fact was that there existed a possibility of delay, and, there- fore, of very great danger, and that danger ought to have been antici- pated and avoided. A delay might be occasioned at that time by an almost infinite number of causes ; the horses might stumble, the harness might gi\'e way, the car might jump the track; a hundred difi"erent things might happen which would lead to a delay, and hence to the probability of an accident. It was not necessary that the driver should foresee the very thing itself which did cause the delay. The material thing for him to foresee was the possibility of a delay from any cause, and this he ought naturally to think of, and a failure to do so, and an attempt to cross the tracks, might be found by the jury to be negligence, even though he would have succeeded in getting across safely on the particular occasion if it had not been for the action of the gatekeeper in wrongfully lowering the gates. The act of the driver being a negligent act, and that act being in full force and in the very process of execution at the time the accident occurred, which accident would not have hap- pened but for such negligent act, the fact that another negligent act of a third party contributed to the happening of the accident would not ab- solve the horse car company. The negligent act of the horse car driver joined with and became a part of the other act in wrongfully lowering the gates, as described, and both acts constituted but one cause for the com- motion which naturally resulted therefrom, and on account of both of these acts, as parts of a whole transaction, the injury occurred. SECT. IV.] WASHINGTON & GEORGETOWN R. R. CO. T. HICKEY. 275 In Insurance Company v. Tweed, 7 Wall. 44, which wa^ an action upon a policy of insurance that contained an exception against fire that might happen "by means of an invasion, insurrection, riot or civil commotion, or any military or usurped power, explosion, earth- quake or hurricane," the insurance company- was held not liable, al- though the fire by which the premises insured were burned was not directly caused by the explosion. The explosion occurred in another warehouse, by reason of which a fire was started that caught in still another building, and the fire from that building was com- municated to the premises which were insured, and which were in that manner destroyed by tlie fire. The court held that, as the whole fire was continuous from the time of the explosion, and was under full headway in about a half an hour, the loss by fire was within the exception contained in the policy, and the insurers were not liable. In that case the question of proximate and remote causes was alluded to, and it was said, by Mr. Justice Miller, that "one of the most val- uable of all the criteria furnished us by the authorities by which to distinguish the remote from the proximate cause of damage was to ascertain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has in- tervened, of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote." In one sense there was in that case a new cause existing in the fact that the explosion caused a fire in another building first, and that the fire was carried by the wind from that building to the building in question and not from the build- ing in which the explosion occurred, and so it was claimed that the fire in the building covered by the policy was not directly caused by the explosion; but the court held that the distinction was not well founded, and that within the policy the insurers were not liable. The fire, in other words, occurred by means of the explosion, and no new cause could be said to have intervened simply because the premises insured were burned by the fire communicated from a third building. The case of Scheffer v. Railroad Company, 105 U. S. 249, is an example of the other side. It was there held that where the passenger was injured by reason of a railway collision, and as a result of such injury he became disordered in mind and body, and some eight months after the collision committed suicide, his personal representatives could not maintam an action against the railway company for his death, as his own act was the proximate cause thereof. It was held that the rela- tion of the negligence of the railroad company to the death of the passenger was too remote to be regarded as a cause of such death, or to justify a recovery against the company. Mr. Justice Miller, m de- livering the opinion of the court, said : "The argument is not sound which seeks to trace this immediate cause of the death through the previous stages of mental aberration, physical suffering and eight months' disease and medical treatment to 276 WASHINGTON & GEORGETOWN R. R. CO. V. HICKEY. [CIIAP. III. the original accident on the railroad. Such a course of possible or even logical argument would lead l)ack to that ' first great cause least understood,' in which the train of all causation ends. "The suicide 1 of Scheffer was not a result naturally and reason- ably to be expected from the injury received on the train. It was not the natural and probable consequence, and could not have been fore- seen in the light of the circumstances attending the negligence of the officers in charge of the train. "His insanity, as a cause of his final destruction, was as little the natural or probal)le result of the negligence of the railway officials, as his suicide, and each of these are casual or unexpected causes, in- tervening between the act which injured him and his death." So in Carter v. Towne, 103 Mass. 507, and DaWdson v. Nichols, 11 Allen, 514, cited by counsel, the intervention of another and sufficient cause to produce the result is apparent. In the first case whatever of fault there was in the sale of the gun- powder by the defendant to the l)oy became absolutely blotted out when, with the knowledge of his aunt, who had the charge of him and the house where he was living, it was placed in the cupboard, and a week afterwards his mother gave him some of the powder and he fired it off with her knowledge. The fact that some days later he took, -with her knowledge, more of the powder and fired it off and was injured by the explosion, could not in any rational degree be said to be caused by the original wrongful sale of the powder. In the other case the druggist sold an article harmless in itself, mis- taking it for another article, also harmless in itself, but another person afterwards intermixed the article sold with another article, making thereljy a dangerous explosive from which injury was suffered. It was held that there could be no recovery against the druggist, because the sale was not the proximate cause of the accident. These are plain cases of the intervention of other and suffi- cient causes for the injuries sustained and where the original actions were too remote to be regarded as causes of such injuries. The other cases cited by counsel are clearly distinguishable in principle from this one. It is unnecessary after what has been said to further com- ment on them. We think there was no error in the refusal of the court to charge as requested, and the exceptions to such refusal are therefore untenable. Another objection now urged by the counsel for the defendant railroads is to the charge of the learned judge on the subject of damages. In response to the request of counsel for plaintiffs the judge charged that — " If the jury find from all the evidence that the plaintiffs are entitled to recover in this action, then they shall award such damages within the limits of the sum claimed in the declaration as will fairh' and reasonablv compensate the plaintiff Margaret for the pain and suffering caused to SECT. IV.] WASHINGTON & GEORGETOWN R. R. CO. V. HICKEY. 277 her by the injury which she sustained and for the injury to her bodily health and power of locomotion, if any such they find, which she has sustained in the past and will continue to sustain in the future as a natural consequence of said injury, and for such internal injurie^s and impairment to her physical health as they may find to be established by the evidence." And the judge also charged: "Your verdict, if you find for the plaintiff, must be a matter to be fixed by you in the exercise of a sound discretion, subject, of course, to the limits placed in the declaration of thirty thousand dollars." The objection which the counsel makes to this charge is that it amounted to a direct intimation to the jury that the finding of a ver- dict for the sum named in the declaration would not be excessive, and that the jury were misled by it, for they brought in a verdict for the plaintiff for $12,000, which the court actually found to be excessive, and directed that the verdict should be set aside unless plaintiffs consented to remit $6000, which they did. But we fail to find from the record that any exception was taken to the charge of the judge upon this subject of damages. We do not intimate that an exception would have been good, if it had been taken; it is sufficient that no exception raises the question, and we do not therefore either discuss or decide it. It is also objected that there is a variance between the declaration and the proof, and that the trial court did not try the issues formed by the pleadings, but went beyond them and made a new case for the plaintiffs. The declaration alleges that the female plaintiff' was pushed and shoved from her seat in the car and thrown \'iolently to the ground and was injured in that way. The court charged the jury that if they should find from the evidence that the female plaintiff^ either jumped off the car in a reasonable effort to avoid injury from collision, or was pushed or thrown from the car by some other passenger or passengers en- deavoring in a reasonable manner to avoid injury from such collision, and was thereby injured, then the plaintiffs were entitled to recover. Upon this subject of variance it was said by Mr. Chief Justice Alvey, in delivering the opinion of the Court of Appeals in this case, that — " Whether she [Mrs. Hickey] fell in consequence of a push received from some other terrified passenger, or in an attempt to save herself by jumping from the car, it would make no material difference in her right to recover. It is not so much the manner of lea\ang the car as it was the exciting cause that operated upon her, either directly and caused her to jump to save herself, or upon others whose actions were justi- fiably incited by the impending danger, and, by natural, impulsive movement, forced her from the car. In either case, her fall to the ground and injury were the direct consequences of the apparent and impending danger produced by the negligent conduct of the defendants' 27S CITY OK LonSYlLLE V. HART. [CHAP. III. servants and employees. There is, therefore, no such variance as should defeat the plaintiffs' right to recover, if the facts were found to exist, as we must assume they were, according to the hypothesis of the in- struction given by the court. It is said by the Supreme Court of the I'nited States that no variance ought ever to be regarded as material where the allegation and proof sustantially correspond, or where the variance was not of a character which could have misled the defendant at the trial. Nash v. Towne, 5 Wall. 689, ()97. Here the variance that is supposed to exist was mainly produced by the proof introduced on the part of the defendants, and therefore there was no surprise to them, and it is not pretended that they were, in any manner, injured by the supposed variance. There is in reality no substantial variance between the allegations and proof." We think this is a correct statement, and nothing more need be said upon the subject. These are all the questions raised by the counsel for the horse rail- road company which we think it necessary to mention. We have carefully examined the various points raised by the learned counsel for the steam railroad company, and are of opinion that they show the existence of no material errors in the conduct of the trial which could or in any way did prejudice the company. There was proper and sufficient evidence submitted to the jury on the question of the employment of the gateman by the steam railroad company. Although there was no direct evidence of an actual contract of employ- ment entered into between the company and the gateman, yet there was ample evidence from which an inference of such employment might properly have been drawn by the jury. We also think the duties of a person so employed were correctly stated to the jury. The ques- tion whether the gateman neglected to properly discharge those duties was submitted to the jury in a manner to which no exception could be taken. Upon an examination of the whole case, we find no error prejudicial to either company, and the judgment against both must be Affirmed} CITY OF LOUISVILLE v. HART. Court of Appeals of Kentucky, 191L [Reported 142 Ky. 171.] Carroll, J. Edward Hart, while dri\'ing a one-horse wagon on Payne Street, in the city of Louis\ille, was thrown from it in front of a street car and killed by the car. To recover damages for his death, the administrator brought an action against the city of Louisville and the Louisville Railway Company, charging that the accident that 1 To\\Tisend v. Boston, 187 Mass. 283, 72 N. E. 991; Galveston H. & S. A. Ry. r. \ollrath, (Tex. Civ. App.) 89 S. W. 279. — Ed. II SECT. IV.] CITY OF LOUISVILLE V. HART. 279 resulted in his death was due to the neghgence of the city in failing to keep the street at the point of the accident in a reasonably safe condition for public travel, and to the high and dangerous rate of speed at which the street car was running and the negligence in its operation.^ . . . Another reason for reversal is that the condition of the street was not the proximate cause of the death of Hart, and therefore the city was not liable. The question of proximate cause in negligence cases has come before the courts of the country in innumerable cases, and as a result there is a large body of law devoted to its consideration. But there is really no difference of opinion as to the general principles upon which this doctrine rests. It is agreed on all sides that the damage suffered must, as stated by Cooley on Torts, p. 68, "be the legitimate sequence of the thing amiss. ... In other words, the law always re- fers the injury to the proximate, not to the remote, cause. The explana- tion of this maxim may be thus given: If the injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the in- jury followed as a direct and immediate consequence, the law will re- fer the damage to the last or proximate cause, and refuse to trace it to that which was more remote." Or, as stated by Shearman & Redfield on Negligence, § 26 : " The proximate cause of an event must be understood to be that which in a natural and continuous sequence, unbroken by any new inde- pendent cause produces that event, and without which that event would not have occurred. Proximity in point of time or space, however, is no part of the definition. That is of no importance, except as it may afford evidence for or against proximity of causation; that is, the proxi- mate cause which is nearest in the order of responsible causation." The difficulty has always come up when it has been attempted to apply these principles to a state of facts presenting more than one contrib- uting cause or act that resulted in the wTong or injury complained of. Of course, when there is only one cause to which the injury or wrong is directly traceable, as when a person intentionally shoots another, or where a passenger on a railway train is injured by a defect in the car in which he is riding, there is no difficulty in determining what was the proximate cause of the injury. But in cases in which there is more than one cause or act connected with or concerned in producing the injury the books are full of decisions determining which one of the causes or acts was the proximate cause. As a result of the infinite variety of cases presenting this question, it is easy to find authority that will apparently support each side in almost any controversy in which a doubtful question arises. To attempt to reconcile these cases would be the height of folly. In truth, when carefully studied, there is really little conflict between them. The apparent conflict grows out of the ' Part of the opinion is omitted. — Ed. 280 CITY OF LOUISVILLE V. HART. [CHAP. III. difference in facts to which must be appHed the principle that con- trols. Or, as stated by Justice Miller in Louisiana Mutual Ins. Co. v. Tweed, 7 Wall. 44, 19 L. ed. 65, in speaking of this subject: " It would be an unprofitable labor to enter into an examination of these cases. If we could deduce from them the best possible expression of the rule, it would remain after all to decide each case largely upon the special facts belonging to it, and often upon the very nicest discriminations." No case can be confidently cited as authority unless its facts are similar to the facts of the case under consideration, and so it would not be useful to re\aew the many cases cited by counsel for appellant, as few of them are directly in point. To again restate briefly, we have this state of facts: Hart on account of defects in the street that ren- dered it unsafe for travel was thrown from his wagon, and fell on the street car track immediately in front of an approaching car that was running at a dangerous and neghgent rate of speed, and was run over and killed by the car. Now we may assume that, if the street had been reasonal)ly safe, he would not have been thrown from his wagon, and, of course, would not have* been killed. We may further assume that if the street car had been operated with ordinary care that it could have been stopped before striking him, and so, although the defective condition of the street caused him to fall on the track, he would yet have escaped injury except Tor the negligence in the operation of the car. We have, then, two appro.vimately concurring acts of negligence by two independent agencies that brought about his death. Neither act of negligence in itself without the cooperation of the other would have harmed him. On the other hand, however fast the car was going, unless he had been thrown in front of it, he would not have been killed. On the other hand, although thrown on the car track by the bad street, he would have escaped death if it had been prudently operated. The question now is which of these acts of negligence was the proximate cause of his death. W'e think that both of them may be so treated. Two agencies acting entirely independent of each other as in this case may jointly and- concurrently be the proximate cause of an injury, when it would not have happened except for the concurrence at ap- proximately the same time and place of the two negligent acts. Thus, in Cooley on Torts, p. 78, it is said: "If the damage has resulted di- rectly from concurrent wrongful acts or neglects of two persons, each of these acts may be counted on as the wrongful cause and the parties held responsible either jointly or severally for the injury." In Shear- man & Redfield on Negligence, § 39, the rule is thus stated : " It is also agreed that if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise :>o directly contributes to the plaintiff''s damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force SECT. IV.] CITY OF LOUISVILLE V. HART. 281 which concurring with his own neghgence produced the damage." In § 346 the same authors say: "The general rule in all states is that where two causes combine to produce an injury to a traveller upon a highway, both of which are in their nature proximate, the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect." As illustrative cases on the subject treated of by these standard authors, we mention out of a number the following: In Louisville Home Telephone Co. v. Gasper, 123 Ky. 128, 93 S. W. 1057, 9 L. R. A. (N. S.) 548, the facts were these: Gasper while walking in a public alley adjoining his home in the city of Louisville was knocked down and crushed by and under a heavy wagon owned and operated by Dressle. The Louisville Home Telephone Company maintained in the alley a telephone pole, to which it negligently strung and main- tained a guy wire, running obliquely from the top thereof to a block in the ground, so as to form and cause a dangerous ol)struction to pe- destrains and vehicles using or passing through the alley. The wagon of Dressle, while being driven through the alley by his servants in a negligent manner, ran upon and against appellant's guy wire, which caused the wagon to be overturned and thrown upon Gasper, resulting in his injuries. Under these facts, the contention of the telephone com- pany was that Gasper was injured solely by the wagon falling upon him, and that its negligence, if any, was too remote to have produced the injury without an intervening cause, and therefore its negligence was not the proximate cause of the injury. But the court, rejecting this view, said : " If the telephone company was negligent as to the manner in which its guy wire was anchored, and it constituted a dangerous obstruction — that is, one that was likely to result in injury to others from an intervening cause — which, though not in fact anticipated by appellant, would not have happened but for its earlier negligence, it cannot escape liability, because its negligence would in such case be the proximate cause of the injury. ... It is also Aery well settled that when an injury is caused by two causes concurring to produce the result, for one of which the defendant is responsible and not for the other, the defendant cannot escape responsibility. One is liable for an injury caused by the concurring negligence of himself and another, to the same extent as if for one caused entirely by his own negligence." In Walrod v. Webster County, lio'lowa, 349, 81 N. W. 598, 47 L. R. A. 480, the court had before it a case in which two independent causes contributed to the injury, and said: "When two causes combine to produce an injury to a traveller upon a highway, both of which are in their nature proximate, the one being a culpable defect in the high- way and the other some occurrence for which neither is responsible, the municipality is liable provided the injury would not have been sustained but for such defect. . . . The mere fact that some other 282 CITY OF LOUISVILLE V. HART. [CHAP. III. cause operates with the neghgence of the defendant to produce the in- jury does not reheve it from Habihty. His original wrong concurring with some other cause, and both operating approximately at the same time and producing the injur}', makes him liable, whether the other cause was one for which the defendant was responsible or not." In Lake v. Milliken, 62 Me. 240, 16 Am. Rep. 456, it appears that the defendants negligently piled boards in the traveled part of a highway, and that a stranger passing along with a wagon loaded with barrels ran over these boards, producing a rattling noise, which frightened the plaintiff's horse, causing him to throw the plaintiff from his wagon and injure him. In holding the defendants liable, the court quoted with approval from Ricker v. Freeman, 50 N. H. 420, 9 Am. Rep. 267, the following statement : " We think the principle is clearly established that negligence may be regarded as the proximate cause of an injury of which it may not be the sole and immediate cause. If the defendant's negligent, inconsiderate, and wanton, though not malicious, act con- curred with any other thing, person, or event, other than the plaintiff's own fault to produce the injury, so that it clearly appears that but for such wrongful negligent act the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even though his neghgent wrongful act may not have been the nearest cause in the chain of events or the order of time." Applying to the facts of this case the principles announced, we have no difficulty in reaching the conclusion that the defective street was one of the proximate causes that resulted in the death of Hart, and therefore an action would lie against the city as well as the street rail- way company. Another error assigned is that the court should have defined " proxi- mate cause." In our opinion a definition of "proximate cause" would have confused rather than enlightened the jury. They were told by an instruction that: "If they believe from the ev-idence that the dan- gerous and defective condition of Payne Street at or about where the collision occurred, if it was dangerous or defective, caused the plaintiff's decedent to be thrown from his wagon and upon the track of the Louis- ville Railway Company and under one of its cars, whereby he was so mangled and injured that he died therefrom, then the law is for the plaintiff as against the defendant city of Louisville, and the jury should so find." This instruction left it to the jury to say whether or not the defect in the street was the cause of the injury complained of, and we do not think an instruction defining or attempting to define "proximate cause" would have aided the jury in reaching a correct verdict. The trial court correctly determined as a matter of law that the city was liable if the defect in the street brought about the death of Hart, and left to the jury the question whether it did or not. SECT. IV.] BENTLEY V. FISHER LUMBER & MANUF. CO. 283 BENTLEY v. FISHER LUMBER & MANUFACTURING CO. Supreme Court of Louisiana, 1899. [Reported 51 La. Ann. 451.] Miller, J. The plaintiff appeals from a judgment awarding her only part of the damages she claims to have sustained by the building of a levee on her land by the defendants.^ . . . Obstructing a natural outlet for the lands of others liesides plaintiff's the levee proved a source of discontent to the landowaiers in the ^^cinity; and the result was that a number of men assembled, and cut the levee, causing the confined water to escape on plaintiff's cultiA-ated lands, below or south of it, destrojdng her crop, unfitting the land for the production of the full crop it would have ^delded but for the precipitation of the water on the land at a time too far advanced in the season to admit of successful replanting. . . . The claim for damages in respect to the land below or south of the levee encounters the difficulty that the inundation causing the alleged loss of crops was the result of the act of the mob cutting the levee. In this view, it was not the levee that caused the damage; for, while the levee stood, there could be no flooding of the land. Can the defend- ants be held for the A-iolence of the mob that precipitated the water on the land? The law is clear that in suits of this character, in com- puting actual damages, the proximate cause is that which the law re- gards. When the law awards other damages than those attributable to the proximate cause, they are given as punitory. Sedg. Dam., § 58, et seq.; 2 Greenl. Ev., § 256. We have given attention to the line of authority cited by plaintiff to connect the act of the defendant in building the levee with the subsequent ^'iolence of the mob cutting it. The "Squib" Case is found in the text-books to illustrate the rule that distinguishes the remote from the proximate cause. The squib is thrown in the market house, lights on one stall, then on another, from both of which it is thrown, and finally the squib thus thrown from the last stall enters the plaintiff's eye and destroys his sight. The court attributed the plaintiff's injury to the party M'ho first threw the squib; in other words, his act was deemed the proximate cause of the loss. The text-books call attention to the concurrence to the full extent of the decision of but one of the four judges, and to the dissent of Justice Blackstone. Sedg. Meas. Dam., p. 58, note. This type of cases, cited in support of plaintiff's demand, does not, in our A-iew, support it. The hurling of the squib in the case cited, the wrongful act, is the effective and direct cause of the loss of the plaintiff's eye. In the case before us the levee built by defendant was harmless, in respect to plain- tiff's loss. The act of the mob was the direct cause of that loss. Our law, and the general law in this class of cases, restricts damages, 1 Part of the opinion is omitted. — Ed. 284 SCHOEPFLIN V. COFFEY. [CHAP. III. unless given by way of punishment, to the loss arising from the proxi- mate cause. Gaulden v. McPhaul, 4 La. Ann. 79; Grant v. McDonogh, 7 La. Ann. 448. With the most patient consideration on this part of the case, we reach the conclusion of our learned brother of the district court, that the plaintiff's demand in this respect cannot be sustained. SCHOEPFLIN V. COFFEY. Court of Appeals of New York, 1900. [Reported 162 N.Y. 12.] Martin, J. This action was for both slander and libel. The com- plaint contains five counts. The first and fifth are for libel and the remainder for slander. Upon the trial the court held that the com- plaint did not state a cause of action for slander, as the words alleged were not actionable per se and no special damages were averred. From this determination no appeal was taken. The case was, however, sub- mitted to the jury as an action for the libel charged in the first and fifth counts of the complaint. These counts in substance charge that on the fifteenth day t)f May, 1895, at Albany, the defendant maliciously spoke and published concerning the plaintiff the false and defamatory words following: "An indictment has been issued against Schoepflin (meaning this plaintiff) by the grand jury of Albany county in connection with Camp- bell's ice bill, and a warrant is out for his arrest;" "I know that an indictment has been found against Schoepflin (meaning this plaintiff) by the grand jury in connection with Campbell's ice bill, from the best authority in the world; I would gamble on it," meaning and declaring thereby that he knew the grand jury of Albany county had found an indictment against the plaintiff, who was then a member of the legis- lature, for corrupt and criminal conduct in connection with a bill which had been introduced and was pending in the assembly; that such statements were made in the presence of G. Edward Graham, and in the presence of G. Edward Graham and Le^vns J. Seabold; and that Graham was the manager of the Associated Press at Albany, and Sea- bold was a reporter and news-gatherer for the New York World. It then averred, "and thereby defendant caused said false and defama- tory statement to be printed and published in most of the daily news- papers of the state of New York and in the said New York World." The first question argued was whether the complaint alleged a cause of action against the defendant for libel. It is to be observed that after stating the slanderous words which were alleged to have been spoken in the presence of Graham and Seabold, and the fact that they were re- porters, the plaintiff alleges that thereby the defendant caused those SECT. IV.] SCHOEPFLIN V. COFFEY. 285 statements to be printed and published. The complaint contains no direct allegation that the defendant caused them to be printed and pub- lished, but after stating certain premises which included the speaking of the words in the presence of the reporter and manager of the Asso- ciated Press, it is averred as a conclusion from the preceding allega- tions, but not as a fact, that the defendant thereby caused the state- ments to be printed and published. Ob\dously, the word "thereby" was used in the sense of by that means, or in consequence of the pre- ceding allegations, and, hence, the averment was of a conclusion as to the effect or result of the facts pre\"iously alleged. If they were un- true, the plaintiff could not be convicted of perjury for falsely alleging and verifying an averment that the defendant caused the statements made by him to be printed and published, as he made no such allega- tions, but merely stated his deduction from the preceding facts. Ob- viously the complaint contains no sufficient allegation that thedefendant caused the printing or publication of the words spoken, to constitute a cause of action against him for libel. We have, however, searched the record in vain to find any proper objection or exception which enables the defendant upon this appeal to avail himself of the insufficiency of the complaint. To raise that question it was necessary that an objection to its sufficiency should have been taken, and the ground upon which it was claimed to be insufficient should have been brought to the attention of the court. It is not a fatal objection on appeal that the cause was tried outside the pleadings in the absence of some specific objection to that course. Parties may, if they so elect, depart from the issues made by the pleadings and try other questions relating to the merits of the controversy by consent or acquiescence. (Farmers' L. & T. Co. v. Housatonic R. R. Co., 152 N. Y. 251.) As the question of the sufficiency of the com- plaint was not properly raised in the court below, it cannot be raised here for the first time. The next question presented is whether the proof was sufficient to justify the court in submitting to the jury the question whether the defendant caused or procured the publication of the alleged libel. In discussing this question, we shall assume that a person who requests, procures or directs another to publish a libel, or connives at or assists in its publication, is liable therefor. But to justify a jury in finding a defendant liable for such publication, there must be some e\adence that it was procured by him, or that he was guilty of some affirmative act which secured or induced it. The mere speaking of words in the presence of third persons that are not actionable per se would at most amount to a mere slander, even if special damages were alleged, and their repetition or the printing and publication of them by the inde- pendent act of a third party, would not render the person speaking them responsible therefor. It is too well settled to be now questioned that one who utters a slander, or prints and publishes a libel, is not responsiljle for its voluo- 286 SCHOEPFLIN V. COFFEY. [ciIAP. III. tary and unjustifiable repetition, without his authority or request, by others over wliom he has no control and who thereby make them- sehes Iial)le to the person injured, and that such repetition cannot be considered in law a necessary, natural and probable consequence of the original slander or libel. (Newall on Defamation, 245; Moak's Under- hill on Torts, 145; M'Gregor v. Thwaites, 3 B. & C. 35.) The remedy in such a case would be against the party who printed and published the words thus spoken, and not against the one speaking them, as a person is not liable for the independent illegal acts of third persons in publishing matters which may have been uttered by him, unless they are procured by him to be published, or he performed some act which induced their publication. (Ward r. Weeks, 7 Bing. 211; Olmsted ;•. Brown, 12 Barb. 657.) The repetition of defamatory language by another than the first publisher is not a natural consequence of the first publication, and, therefore, the loss resulting from such repetition is not generally attributable- to the first publisher. This rule is based upon the principle that every person who repeats a slander is respon- sible for the damage caused by such repetition, and that such damage is not the proximate and natural consequence of the first publication of the slander. (Bassell r. Elmore, 48 N. ¥.504; Fowles v. Bowen, 30 N. Y. 20; Terwilliger v. Wands, 17 N. Y. 57, 58; Laidlaw v. Sage, 158 N. Y. 73.) In the latter case the question of proximate cause was considered, and it was held that it was applicable to actions of tort, and that the proximate cause of an event was that which in a natural and con- tinuous sequence, unbroken by any new cause, produces the event complained of, and without which it would not have occurred. Apply- ing the principle of those cases to the question under consideration, it becomes obvious that the speaking of the words by the defendant was not the proximate cause of the injury the plaintiff sustained by reason of their publication in the various newspapers of the state. We have examined the case of Youmans v. Smith (153 N. Y. 214), which is so firmly relied upon by the plaintiff, but do not find any prin- ciple decided there which is in conflict with the doctrine already stated. There the person who ordered the matter printed informed the printer that he desired it for the purpose of circulation. Under those circum- stances it was held that the printer was liable. The record in this case seems to be entirely barren of proof that the defendant in any way procured, requested, commanded or induced the printing of the matters set forth in the complaint. The most that was established was that a person whom the defendant knew to be a reporter asked him as to a report which was in circulation concerning the matters alleged in the complaint, stating that he understood the defendant had asserted the facts, which were subsequently pub- lished, and the latter admitted having done so. There is, however, no proof that his statement was made for publication, but, on the con- trary, the proof was that nothing was said upon the subject. There is also other evidence of the defendant which tends to show that he SECT. IV.] GL.\SSEY V. WORCESTER CONSOLIDATED ST. RY. CO. 287 did not intend that it should be published and had no design to pro- cure its publication. We are of the opinion that the court erred in denying the defendant's motion for a non-suit, and in not directing a verdict for him upon the ground that the proot was insufficient to constitute a cause of action against him for libel. ^ GLASSEY V. WORCESTER CONSOLIDATED STREET RAIL- WAY CO. Supreme Judicial Court of Massachusetts, 1904. [Reported 185 Mass. 315.] Morton, J. These two cases were tried and have been argued together. At the close of the plaintiffs' e\'idence in the Superior Court the presiding judge ruled at the defendant's request that the plaintifPs could not recover and directed verdicts for the defendant. The cases are here on exceptions by the plaintiffs to these rulings. The case of the pl;iintiff Rachel, who is a married woman, is for in- juries alleged to have been received by her in consequence of the neg- ligence of the defendant in leaving a large reel by the side of or in Cameron Street in Clinton, which some boys rolled down the street and which struck the carriage in which the plaintiff was dri^Tng and threw her out and caused the injuries complained of. The other action is by the husband for the loss of consortium and the expenses incurred by him because of the injuries to his wife. The e\adence would have warranted a finding, and for the purposes of these cases we assume that such was the fact, that the reel belonged to the defendant and had had feed wire upon it which had been strung upon its poles by persons in its employ. But it is not clear whether the reel was left on a vacant piece of land just outside the limits of the highway, or whether it was left within the location of the highway. We assume as most favorable to the plaintiffs that it was left within the limits of the highway. The uncontradicted testimony shows, how- ever, that it was left outside the traveled portion of the highway lying on its side in the grasc in a secure position. The plaintiffs introduced in evidence a by-law of the town forbidding persons to leave obstruc- tions of any kind in the highway without a written license from the road commissioners or other board ha\ang charge of the streets, and they contend that, if the reel was left within the location of the highway when forbidden by the by-law, that of itself constituted such negligence as renders the defendant liable. But the most, we think, that can be said of this contention is that the lea^'ing of the reel within the limits of the highway was evidence of negligence, not that in and of itself rendered the defendant liable or should be held as matter of law to have contributed directly to the accident. Hanlon v. South Boston Horse 1 In the remainder of the opinion other points are discussed. — Ed. 288 GLASSEY V. WORCESTER CONSOLIDATED ST. RY. CO. [CHAP. III. Railroad, 129 Mass. 310. The question is whether in leaxang the reel lying on its side in the grass near the road the defendant ought reason- ably to have anticipated that children passing along the street on their way to school, or for other purposes, would take it from the place where it had been left, and engage in rolling it up and down the street, and that travelers on the highway would thereby be injured. The question is not whether a high degree of caution ought to have led the defendant to anticipate that such a thing might possibly occur, but whether it ought reasonably to have been expected to happen in the ordinary course of events. In the former case the defendant would not be liable, and in the latter it might be held liable, notwithstanding an active human agency had intervened between the original wrongful act and the injury. The case of Stone v. Boston & Albany Railroad, 171 Mass. 536, furnishes an illustration of the former class of cases, and the case of Lane v. Atlantic Works, HI Mass. 136, of the latter. It is clear that the plaintiff Rachel was in the exercise of due care. But assuming that the reel was left in the highway and that that was some evidence of negligence, we think that such negligence was the remote and not the direct and proximate cause of the plaintiff Rachel's injury. The material facts with the inferences to be drawn from them are not in dispute, and in such a case the question of remote or proximate cause is one of law for the court. Stone v. Boston & Albany Railroad, 171 Mass. 536, 543. McDonald v. Snelling, 14 Allen, 290, 299. Hobbs v. London & Southwestern Railway, L. R. 10 Q. B. Ill, 122. The defendant's servants left the reel in a secure position Ijang on its side in the grass outside the traveled part of the street, and not in immediate proximity to it. As the reel was left it was entirely safe. It was not possible for a slight or accidental movement to set it in motion so as to injure others, as in the case of Lane v. Atlantic Works, ubi supra. The reel was large and cumbersome and required active effort on the part of a number of children to move it, from the place where it had been left, on to the traveled part of the highway, and set it in motion. And in order to injure the plaintiff or any other traveler on the highway it was necessary that it should be set in motion at a time when the plaintiff or other travelers were passing along the high- way. In other words, in order to render the defendant liable, it must appear, not only tlaat it should have anticipated that in the ordinary course of events school children would take the reel from the position where it had been securely left outside the traveled part of the road, but that they would set it in motion on the highway under such cir- cumstances that it was liable to injure a traveler thereon. It seems to us that, conceding that there was evidence of negligence on the part of the defendant in leaving the reel where its servants did, they could not be required to anticipate that this would happen in the ordinary course of events, and, therefore, that the negligence was too remote. See Speake v. Hughes (1904), 1 K. B. 138. Exceptions overruled. SECT. IV.] PEOPLE V. LEWIS. 289 PEOPLE V. LEWIS. Supreme Couht of California. 1899. [Reported l:i4 CaL o51.] Temple, J.^ . . . Defendant and deceased were brothers-in-law, and not altogether friendly, although they were on speaking and visiting terms. On the morning of the homicide the deceased visited the resi- dence of the defendant, was received in a friendly manner, but after a while an altercation arose, as a result of which defendant shot deceased in the abdomen, inflicting a wound that was necessarily mortal. Farrell fell to the ground, stunned for an instant, but soon got up and went into the house, saying: ''Shoot me again; I shall die anyway." His strength soon failed him, and he was put to bed. Soon afterward, about how long does not appear, but within a very few minutes, when no other person was present except a lad about nine years of age, nephew of the deceased and son of the defendant, the deceased pro- cured a knife and cut his throat, inflicting a ghastly wound from the eflfect of which, according to the medical evidence, he must necessarily have died in five minutes. The wound inflicted bj' the defendant sev- ered the mesenteric artery, and medical witnesses testified that under the circumstances, it was necessarily mortal, and death would ensue within one hour from the effects of the wound alone. Indeed, the evi- dence was that usually the effect of such a wound would be to cause death in less time than that, but possibly the omentum may have filled the wound, and thus, by preventing the flow of the blood from the body, have stayed its certain effect for a short period. Internal hemor- rhage was still occurring, and, with other effects of the gunshot wound, produced intense pain. The medical witnesses thought that death was accelerated by the knife wound. Perhaps some of them considered it the immediate cause of death. Now, it is contended that this is a case where one languishing from a mortal wound is killed by an intervening cause, and, therefore, de- ceased was not killed b3' Lewis. To constitute manslaughter, the defendant must have killed some one, and if, though mortallj' wounded by the defendant, Farrell actualh- died from an independent intervening cause, Lewis, at the most, could only be guiltv of a felonious attempt. He was as eflectually prevented from killing as he would have been if some obstacle had turned aside the bullet from its course and left Farrell unwounded. And they contend that the intervening act was the cause of death, if it shortened the life of Farrell for any period whatever. The attorney general does not controvert the general proposition here contended for, but argues that the wound inflicted by the defend- ■^ Part of the opiuiou is omitted. — Ed. 290 PEOPLE V. LEWIS. [CHAP. III. ant was the direct cause of the throat cutting, and, therefore, defendant is criniinally responsible for the death. He ilhis-tiates his position In- supposing a case of one dangerously vvounded, and whose wounds had been bandaged by a surgeon. He says, suppose through the fever aud pain consequent upon tiie wound the patient becomes frenzied and tears away the bandage, and thus accelerates his own death; would not the defendant be responsible for a homicide? Undoubtedly he would be, for in the ease supposed the deceased died from the wound, aggra- vated, it is true, by the restlessness of the deceased, but still the wound inllicted b}' the defendant produced death. Whether such is the case here is the question. The attorney general seems to admit a fact which I do not concede, that the gunshot wound was not, when Farrell died, then itself directh' contributory to the death. I think the jury were warranted in finding that it was. But if the deceased did die from the effect of the knife wound alone, no doubt the defendant would be responsible, if it was made to appear, and the jur^' could have found from the evidence, that the knife wound was caused b\- the wound inflicted b}' the defendant in the natural course of events. If the relation was causal, and the wounded condition of the deceased was not mereh^ the occasion upon which another cause intervened, not produced bj- the first wound or related to it in other than a causal way, then defendant is guilty of a homicide. But, if the wounded condition only afforded an opportunit}' for another unconnected person to kill, defendant would not be guilt}' of a homicide, even though he had inflicted a mortal wound. In such case, I think, it would be true that the defendant was thus prevented from killing. The case, considered under this view, is further complicated from the fact that it is impossible to determine whether deceased was induced to cut his throat through pain produced by the wound. May it not have been from remorse, or from a desire to shield his brother-in-law? In either case, the causal relation between the knife wound and the gun- shot wound would seem to be the same. In either case, if defendant had not shot the deceased, the knife wound would not have been inflicted. Suppose one assaults and wounds another, intending to take life, but the wound, thougli painful, is not even dangerous, and the wounded man knows that it is not mortal, and yet takes his own life to escape pain, would it not be suicide only? Yet the wound inflicted by the assailant would have the same relation to death which the original wound in this case has to the knife wound. The wound induced the suicide, but the wound was not, in the usual course of things, the cause of the suicide. Though no case altogether like this has been found, 3'et, as was to have been expected, the general subject has often been considered. In 1 Hale's Pleas of the Crown, 428, the law is stated. So far as mate- rial here, his views may be thus summarized : 1. If one gives another a dangerous wound which might by verv skilful treatment be cured. SECT. IV.] PEOPLE V. LEWIS. 291 and is not, it is a case of homicide. 2. If one inflicts a dangerous wound, and the man dies from the treatment, " if it can clearly appear that the medicine and not the wound was the cause of the death, it seems it is not homicide, but then it must appear clearl}- and certainly to be so." 3. If one receives a wound, not in itself mortal, and fever or gangrene sets in because of improper treatment or unruly conduct of the patient, and death ensues, it is homicide, "for that wound, though it was not the immediate cause of his deoth, yet it was the mediate cause thereof, and the fever or gangrene was the immediate cause of his death, yet the wound was the cause of the gangrene or fever, and so, consequently, is causa rausatiy 4. One who hastens the death of a person languishing with a mortal disease is guilt}' of a homicide, for the death is not merely by a visitation of Providence, but the hurt has- tens it, and the wrongdoer cannot thus apportion the responsibility, etc. It would make no difference, I presume, if the person killed was languishing from a mortal wound, rather than from an ordinary disease. In State v. Scates, 5 Jones, 420, a child was found dead, badly burned, and with a wound from a blow on the head. The burning was admitted b}" defendant, but the blow was not, and it was not proven who inflicted it. The medical witness thought the burning was the primary cause of death, but the blow may have hastened it. The jury was told that if it was doubtful which was the immediate cause of death, the}' must acquit, but if they found that the burning was the primary cause of death, and the blow only hastened it, they could convict. The case was reversed, the appellate court holding that the blow might have been the independent act of another, and, if it hastened the death, it, and not the burning, vvas the cause of death. In Bush V. Commonwealth, 78 Ky. 268. the deceased received a wound not necessarily mortal, and, in consequence, was taken to a hospital, where she took scarlet fever from a nurse and died of llie fever. The court said: ''When the disease is a consequence of the wound, although the proximate cause of the death, the person inflicting the wound is guilty, because the death can l)e traced as a result natu- rally flowing from the wound and coming in the natural order of things ; but when there is a supervening cause, not naturally intervening by reason of the wound, the death is by visitation of Providence, and not from the act of the party inflicting the wound. ... If the death was not connected with the wound in the regular ch.ain of causes and con- sequences, there ought not to be any responsibility." The last case, in my opinion, so far as it goes, correctly states the ]aw. The facts of this case do not bring it strictly within any of the propositions found in Hale's Pleas of the Crown. The second and third propositions both predicate a wound not necessarily mortal. What the law would have been in the second case had the wound been mortal, and the applications had hastened the death, is not stated. It seems to me, however, the case of a person already languishing from a mortal 292 PEOPLE V. LEWIS. [cHAP. III. wound is precisely that of one suffering from a mortal disease. Cer- tuinly the wilful and unlawful killing of such a person would be a fel- ony, and it cannot be true that the first offender and the last can each be guilty of murdering the same man, — if they had no connection with each other, and both wounds were not actively operating to produce death when it occurred. But why is it that one who inflicts a wound not mortal is guilty of a homicide, if through misconduct of the patient or unskilful treatment gangrene or fever sets in, producing a fatal termination, — when, if it can be clearly made to appear that the n)edicine and not the wound was the cause of the death, he is not guilty of a homicide? In each case if the wound had not been, the treatment would not have been, and the man would not then have died. In each case the wound occa- sioned the treatment which caused or contributed to the death. The reason, I think, is found in the words advisedly used in the last sen- tence. In the one case the treatment caused the death, and in the other it merely contributed to it. In one case the treatment aggravated the wound, but the wound thus aggravated produced death. In the other the wound, through the ocicasion of the treatment, did not con- tribute to the death, which occurred without any present contribution to the natural effect of the medicine from the wound. Take, for in- stance, the giving of a dose of morphine, by mistake, sufficient to end life at once. In such case it is as obvious that the treatment produced death as it would have been had the physician cut off his patient's head. But see People v. Cook, 39- Mich. 236 ; 33 Am. Rep. 380. In this case it appears that defendant has inflicted a dangerous wound, but it was contended by the defence that death was caused by an overdose of morphine. Defendant asked an instruction as follows: ''If the jury believe that the injury inflicted by the prisoner would have been fatal, but if death was actually produced by morphine poisoning, they must acquit." The instruction was refused, but the jury were told that if the wound was not in itself mortal, and death was caused solely by the morphine, they must acquit. The action of the trial court was sus- tained, on the ground that a mortal wound had been given which neces- sitated medical treatment ; that the pliysicians were competent and acted in good faith ; and that it was. not made clearly to appear that the morphine solely produced death, and that the wound did not at all contribute to the death at that time. Under the authorities this was equivalent to a finding that the wound did not contribute to the death. This case differs from that in this, that here the intervening cause, which it is alleged hastened death, was not medical treatment, designed to be helpful, and which the deceased was compelled to procure because of the wound, but was an act intended to produce death, and did not result from the first wound in the natural course of events. But we have reached the conclusion by a course of argument unnecessarily proli.x;, except from a desire to consider fully the earnest and able ar- SECT. IV.] COLE V. GERMAX SAVINGS & LOAN SOCIETY. 293 gument of the defendant, that the test is — or at least one test — whether, when the death occurred, the wound inflicted by the defend- ant did contribute to the event. If it did, although other independent causes also contributed, the causal relation between the unlawful act:* of the defendant and the death has been made out. Here, when the throat was cut, Farrell was not merel}- languishing from a mortal wound. He was actually dying, — and after the throat was cut he continued to languish from l)Oth wounds. Drop by drop the life cur- rent went out from both wounds, and at the very instant of death the gunshot wound was contributing to the event. If the throat cutting had been by a third person, uiicoiiuected with the defendant, he might be guilt}' ; for, althouiiii a man cannot be killed twice, two persons, acting independently, may contribute to his death, and each be guilty of a homicide. A person dying is still in life, and may be killed ; but if he is dying from a wound given by another, both may properly be said to have contributed to his death. COLE V. GERMAN SAVINGS & LOAN SOCIETY. Circuit Court of Appeals, 1903. [Report-d 124 Fed. 116.] The plaintiff, Viola Cole, sued the German Savings & Loan Society for damages which she alleged were the result of its negligence in the care and operation of its elevator, and at the close of the trial these facts were established : About 4 o'clock in the afternoon of a bright sunshiny day in May, the plaintiff, a lady 32 years of age, entered the hall of a building of the German Savings & Loan Society for the purpose of riding on an elevator to an upper story. The well of this elevator was about forty feet distant from the entrance to the hall, into which it opened. It was separated from the hall by a door, which at the time was standing open not more than ten inches. As the plaintiff passed through this hall, a boy who was a stranger to her, and who was not employed by or authorized to act for the defendant, but who had been seen by one of the witnesses prior to that time endeavoring to operate the elevator once, and riding upon it and visiting the boy in charge of it a dozen times, hurriedly passed the plaintiff, seized the sliding door to the elevator shaft, pushed it back as far as it would go, and stepped back. The elevator was at an upper story in charge of its regular operator. The plaintiff supposed that the strange boy was the 294 COLE V. GET?MAN SAVINGS & LOAN SOCIETY. [CIIAP. III. operator of the elevator, stepped into the shaft, and fell lOl? feet to its bottom, and was seriously injured. The hall was dark and gloomy. It was difficult to see the elevator at the lower floor, but it was not impossible to see it. When it was not at that floor, nothing but dark- ness was \asible in the well below it. There was no artificial light in the hall at the time of the accident, although there were the means to make an electric light, which was often lighted, just in front of the door of the shaft. This door was furnished with a hook, which, when the door was closed, entered a slot and grasped a bar. But the door could be opened from the outside, even when it was latched by lifting it and pushing it back. When the employee in charge of the elevator jammed the door, it would bound back and slide open from 1 to 10 inches. The court instructed the jury, upon this state of facts, to return a ver- dict for the defendant, and this charge, together with certain rulings rejecting proffered testimony, is assigned as error. Sanborn, C. J. The crucial question in this case is whether or not the negligence of the defendant was the proximate cause of the injury of the plaintiff, so that, in the legal acceptation of that term, it con- tributed to her hurt. "Causa proxima, non remota, spectatur," and those damages which are the result of remote causes form a part of that large mass of resulting losses styled "damnum absque injuria," for which the law permits no recovery. A clear conception of the test which distingTiishes the proximate from the remote cause is, therefore, the first and the indispensable prerequisite to a true answer to the question which this case presents ; for by that test alone must the issue here, in all the varying garbs in which the ingenuity of counsel has clothed it, be tried and be ultimately determined. This test is most clearly seen from the standpoint of the injury inflicted, and is well dis- closed by these indisputable principles of the law: An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause, or no cause whatever, of the injury. An injury that results from an act of negligence, but that could not have been foreseen or reasonably antici- pated as its probable consequence, and that would not have resulted from it, had not the interposition of some new and independent cause interrupted the natural sequence of events, turned aside their course, and produced it, is not actionable. Such an act of negligence is the remote, and the independent intervening cause is the proximate, cause of the injury. A natural consequence of an act is the consequence which ordinarily follows it — the result which may be reasonably anticipated from it. A probable consequence is one that is more likely to follow its supposed cause than it is to fail to follow it. Chicago, St. P., M. & O. Ry. Co. V. Elliott, 55 Fed. 949, 952, 5 C. C. A. 347, 350, 20 L. R. A. SECT. I\.] COLE V. GERMAN SAVINGS & LOAN SOCIETY. 295 582; Railway Co. v. Kellogg, 94 U. S. 469, 475, 24 L. Ed. 256; Hoag v. Railroad Co., 85 Pa. 293, 298, 299, 27 Am. Rep. 653. Let us try the issue in hand by these familiar rules. It goes with- out saying that the injury of the plaintiff was the natural and probable consequence of the act of the trespasser who preceded the plaintiff to the elevator, opened the door of the well, and stepped back, thus in- viting her to pass into the shaft. No one can contemplate this act for a moment without a clear conviction that the fall and the injury were its natural and probable result. This act was, therefore, a proxi- mate cause of the injury — an act of negligence which formed the basis for an action for damages against the strange boy who committed it. It was not only the nearest cause of the disaster in point of time, but it was the moving and efficient cause — the cause without which, so far as finite vision can see, the accident would never have occurred. Counsel for the plaintiff do pot deny this obvious conclusion, but they insist that the negligence of the strange boy merely concurred with the acts of omission and commission of the defendant ; and they invoke the conceded rule that it is no defen.se to the damages resulting from an act of negligence that the carelessness of another concurred with the negligence of the defendant to produce the injury. Among other authorities they cite the case of Union Pac. R. Co. v. Callaghan, 56 Fed. 988, 993, 994, 6 C. C. A. 205, 210, in support of this position. In that case the negligence of a conductor of a train of cars who recklessly directed his engineer to disregard a signal to stop, wliich was given at a station they were passing, concurred with the succeeding failure of the engineer to observe and heed other signals of danger, and led him to drive the train upon a defective bridge, and this court held that the concurring negligence of the engineer was dependent upon the prior reckless order of the conductor; that the engineer's negligence was a dependent, and not an independent, cause of the disaster, that it did not break and turn aside the natural sequence of events between the recklessness of the conductor and the accident, but simply permitted that act to work out its natural and probable result; and that for this reason it constituted no defense to the action for damages for the negligence of the conductor. In the opinion this court said : "The independent intervening cause that will prevent a recovery on account of the act or omission of a wrongdoer must be a cause which interrupts the natural sequence of events, turns aside their course, prevents the natural and probable result of the original act or omission, and produces a different result, that could not have been reasonably anticipated." 56 Fed. 993, 994, 6 C. C. A. 210. But it also said: "No act contributes to an injury, in the legal acceptation of that term, unless it is a proximate cause of that injury — unless it is near 296 COLE V. GERMAN SAVINGS & LOAN SOCIETY. [CHAP. III. to it in the order of causation. Jacobus v. Railway Co., 20 ]\Iinn. 125, 134 [(Gil. 110), 18 Am. Rep. 360]." 56 Fed. 990,^6 C. C. A. 207. The test of the liability, therefore, in cases of concurring negligence is the same that it is in all other actions for negligence. It is the true answer to the questions: Was the injury the natural and probable consequence of the act on which the action is based? Was it reasonably to be anticipated from that act? If it was, the action may be main- tained, although the negligence of another concurred to produce the untoward result. If it was not, the act of negligence will not sus- tain an action, whether the act of another concurred or failed to concur to produce it. A negligent act from which an injury could not have been foreseen or reasonably anticipated is too remote in the line of causation to sustain an action for an injury in every case, and the concurring negligence of another cannot make it less remote, nor charge him who committed it with responsibility for it to which he would not have been liable to answer in the absence of the negligence of the third party. It is not here asserted that there may not be many cases in which one who has committed a negligent act may be liable for an injury which is the result of his wrongful act and of the concurring negligence of another, but which would not have followed in the absence of the recklessness of the third party. The succeeding or concurring negli- gence of another and its evil consequences may be the natural and probable result of a defendant's act of negligence, so that the latter may be actionable. But, unless the ultimate injury is the natural and prob- able consequence of the defendant's act of negligence, that act is not the proximate cause of the injury, and no action can be maintained upon it, whether the succeeding injury results from that act alone or from that act and the concurring or succeeding negligence of a stranger. In other words, the concurring negligence of another cannot trans- form an act of "negligence which is so remote a cause of an injury that it is not actionable into a cause so proximate that an action can be main- tained upon it. It cannot create a liability against one who does not legally cause it, or make an injury the natural and probable result of a prior act of negligence which was not, or would not have been, such a result in its absence. No act contributes to an injury, in the legal acceptation of that term, unless it is a proximate cause of that injury — unless that injury could and ought to have been foreseen or reasonably anticipated as its probable consequence. The conclusion inevitably follows that the concurring negligence of the trespasser in this case does not answer the primary question which the action presents. It leaves it entirely undetermined, and that question still recurs. W^as the injury of the plaintiff the natural and probable result of the acts or omissions of the defendant? Let us see. That negligence consisted of permitting such a degree of darkness in the hall opposite the door which opened into the well of the elevator SECT. IV.] COLE V. GERM.'USr SAVINGS & LOAN SOCIETY. 297 that it was difficult to see whether or not the elevator was there; of allowing boys to visit in, ride upon, and sometimes to operate the eleva- tor; of allowing the boy who opened the door to the well to ride and visit in the elevator about a dozen times, anrl to endeavor to oper- ate it at least once; of neglecting to provide a lock for the door which would prevent any one from opening it from the outside; and of per- mitting the door to stand open from one to ten inches. The burden of proof was upon the plaintiff to establish a state of facts which would naturally lead to the conclusion that her entrance and fall in the well were the natural and probable consequences of these acts of negligence committed by the defendant. If she failed to successfully bear this burden, she was entitled to no damages from the Savings & Loan Society. Chicago, St. P., M. & O. Ry. Co. v. Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582; Union Pac. Ry. C^o. v. Callaghan, 56 Fed. 988, 993, 6 C. C. A. 205, 210. Where is the evidence to sustain such a conclusion? The best e\'idence upon such an issue is the testi- mony of experience, because what has been is our best guide to what will be. The challenged acts and omissions of the defendant had been in operation for many months. If they had produced such a conse- quence as the fall and injury of the plaintiff in the past, that fact would have raised a strong presumption that this was their natural tendency. If they had produced no such result, the counter presump- tion was not less strong. It is for this reason that courts frequently speak of the fact that no such injuries as those upon which the actions under their consideration are based have occurred before as persuasi^■e evidence that the disasters could not have been foreseen or reasonably anticipated as the probable result of the acts upon which the suits are based. Cleveland v. New Jersey Steamboat Co., 68 N. Y. 306, 312. There is no evidence in this case that any such accident or injury as that from which the plaintiff suffers ever followed the defendant's acts of negligence before the plaintiff fell into the well. Not only this, but there is no evidence that the accident and injury to the plaintiff resulted from these acts or omissions, but positive and convincing testimony that they were produced by the wrongful act of another. Another class of evidence sometimes presented in cases of this nature consists of the testimony of witnesses that the negligence of the defend- ant which forms the basis of the action has at times placed them in imminent danger of like accidents, from which they have hardly escaped without injury. But this record is barren of e\ddence of this character. Experts sometimes come to say that a piece of machinery was so defective, or the method of its operation of so dangerous a char- acter, that in their opinion the condition or the method of operation naturally tended to an accident or injury of the nature of that upon which the action on trial is based. But no expert gave such testimony in the case at bar. The record is barren of all testimony upon the subject, except proof of the acts and omissions of the defendant which 298 COLE V. GERMAN SAVINGS & LOAN SOCIETY. [CHAP. III. have been recited, and of the fact that a proximate cause of the acci- dent was the act of the trespasser who opened the door and extended to the phiintiff the invitation to step into the darkness and to fall, which she accepted. There is nothing in the evidence to the effect that the de- fendant's acts or omissions ever had produced, or ever would in the natural sequence of events have produced, any such injury as that from which the plaintiff is suffering, while the proof is plenary that it was the act of the stranger which actually caused it. But counsel seek to escape from the natural effect of this e\'idence by the contention that the voluntary act of the strange boy in opening the door of the well when the elevator was at an upper floor could and should have been foreseen and anticipated as the probable result of the unlocked door, of the \Tlsits of the boy upon the elevator, and of his previous attempt to operate it. This argument loses sight of the fact that the wrongful act of this trespasser was not committed in operating, or in attempting to operate, the elevator, in riding or ^'isiting upon it, or in the doing of any' act which he had ever done before. He had never opened the door into the empty well and invited a patron of the elevator to step into it before this accident occurred. How could any one reason- ably anticipate that he would be guilty of such an act? The facts that he had \dsited upon the elevator and had attempted to operate it with the permission of the employee in charge of it gave no warning of any such purpose on his part or of the probability of any such act. Mr. Justice Holmes in delivering the opinion of the Supreme Court of Massachusetts in Burt v. Advertiser Newspaper Co., 154 Mass. 238, 247, 28 N. E. 1, 6, 13 L. R. A. 47, said: "Wrongful acts of indepen- dent third persons, not actually intended by the defendant, are not regarded by the law as natural consequences of his wrong, and he is not bound to anticipate the general probability of such acts, any more than a particular act by this or that indiWdual." The act of the strange boy was a \'iolation of the law. It was a tres- pass upon the property and upon the rights of the defendant. The de- fendant could not foresee or reasonably anticipate, and it was not re- quired to anticipate or topro\ade for, \'iolations of the law and trespasses upon its property by its fellow citizens. The legal presumption was that this boy and all boys and men would obey the law, would refrain from committing trespasses upon the defendant's rights or property, and would discharge their moral and social duties. The defendant had the right to indulge in this presumption, and to calculate the nat- ural and probable result of its acts and omissions upon this supposition. Indeed, it could reckon upon no other; for it is alike impracticable and impossible to predicate and administer the rights and remedies of men upon the theory that their associates and fellows will either vio- late the laws or disregard their duties. Little Rock & M. R. Co. v. Barry, 84 Fed. 944, 950, 28 C. C. A. 644, 650, 43 L. R. A. 349. The mischievous act of the strange boy which caused the plaintiff's hurt SECT. IV.] COLE V. GERMAN SAVINGS & LOAN SOCIETY. 299 could not have been foreseen nor reasonably anticipated as the probable result of the defendant's acts of negligence, because it was a \'iolation of law and of duty, and because there was nothing in pre xaous experience, observation, or information to lead to such an anticipation. This con- cludes the discussion of the facts relative to the relations and situation of the parties as disclosed by the record, in view of the arguments of the counsel for the plaintiff. It is now no longer difficult to determine whether or not the acts of the defendant were the proximate cause of the injury to the plaintiff. Wharton says: " Supposing that, had it not been for the intervention of a responsible third party, the defendant's negligence would have produced no dam- age to the plaintiff, is the defendant liable to the plaintiff? This ques- tion must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of responsible human action. I am negligent on a particu- lar subject-matter as to which I am not contractually bound. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor, and insulates my negligence, so that I cannot be sued for the mischief which the per- son so intervening directly produces. He is the one who is liable to the person injured." Whart. Neg. § 134. Bishop on Noncontract Law, § 42, says : " If, after the cause in question has been in operation, some independ- ent force comes in and produces an injury, not its natural or probable effect, the author of the cause is not responsible." Judge Cooley and the Supreme Court of North Carolina say in his words : " If the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote." Clark v. Wilmington, etc., R. Co., 109 N. C. 430, 449, 14 S. E. 43, 47, 14 L. R. A. 749. The Supreme Court declares: " The question always is, was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?" Railway Company v. Kellogg, 94 U. S. 469, 475, 24 L. Ed. 256. And again: 300 COLE V. GER.MAX .SAVINGS & LOAX SOCIETY, [ciIAP. III. " The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely inci- dental, or instruments of a superior or controlling agency, are not the proximate causes and the responsible ones." Insurance Company v. Boon, 95 U. S. 117, 130, 24 L. Ed. 395. The Circuit Court of Appeals for the Seventh Circuit holds that: " The remote cause is that cause which some independent force merely took advantage of to accomplish something not the probable or natural effect thereof. . . . The causal connection between the negligence and the hurt is interrupted by the interposition of an independent human agency; and, as Mr. Wharton expresses the thought, 'the intervener acts as a nonconductor, and insulates the negligence.' The test is: Was the intervening efficient cause a new and independent force, acting in and of itself in causing the injury and superseding the original wrong complained of, so as to make it remote in the chain of causation, although it may have remotely contributed to the injury as an occasion or condition?" Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 405, 11 C. C. A. 253, 258, 459, 27 L. R. A. 583. And this court has said : "An injury that could not have been foreseen or reasonably antici- pated as the probable result of the negligence is not actionable, nor is an injury that is not the natural consequence of the negligence com- plained of, and that would not have resulted from it, but for the inter- position of some new independent cause that could not have been an- ticipated." Chicago, St. P., M. & O. Ry. Co. v. Elliott, 55 Fed. 949, 951, 952, 5 C. C. A. 347, 349. Try this case by any of these tests, and the result is the same. The independent voluntary act of the strange boy who opened the door of the elevator and invited the plaintiff to enter the well was incapable of anticipation. No one could have foreseen it as the probable consequence of the acts or omissions of the defendant. It broke the chain of causa- tion between the prior negligence of the defendant and the injury of the plaintiff, insulated the defendant's acts and omissions from the plaintiff's hurt, and imposed upon the boy who willed and committed the act which produced the injury the sole liability for the damages which re- sulted from it. The acts and omissions of the defendant were too re- mote to legally contribute to the injury or to impose liability for it. They were not a proximate cause of the accident, and the mischievous and wrongful act of the strange boy was the sole mo\ang efficient prox- imate cause that produced it. Railroad Co. v. Barry, 84 Fed. 944, 950, 28 C. C. A. 644, 650, 43 L. R. A. 349; Railroad Co. v. Elliott, 55 Fed. 949, 952, 5 C. C. A. 347, 350; Finalyson v. Milling Co., 67 Fed. 507, 512, 14 C. C. A. 492, 496; Railway Co. r. Bennett, 69 Fed. 525, 16 C. C. A. 300; Railway Co. v. Callaghan, 56 Fed. 988, 993, 6 C. C. A. 205, SECT. IV.] COLE V. GERMAX SA\nXGS & LOAN SOCIETY. 301 210; Railway Co. v. Moseley, 57 Fed. 921, 926, 6 C. C. A. 641, 646; Insurance Co. v. IVIelick, 65 Fed. 178, 184, 12 C. C. A. 544, .550, 27 L. R. A. 629; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 11 C. C. A. 253; Laidlaw v. Sage, 158 N. Y. 73, 98-102, 52 N. E. 679, 44 L. R. A. 216; Trewatha v. Milling Co., 96 Cal. 494, 500, 28 Pac. 571, 31 Pac. 561; Ayers v. Rochester Ry. Co., 156 N. Y. 104, 108, .50 N. E. 960; Doherty v. Waltham, 4 Gray, 596; Parker v. Cohoes, 10 Hun, 531. Our conclusion has not been reached without a careful perusal of the opinions of the courts in the cases cited by counsel for the plaintiff in error, especially those in Colorado Mortgage & Investment Co. r. Rees (Colo. Sup.) 42 Pac. 42; Tousey v. Roberts, 114 N. Y. 312, 21 N. E. 399, 11 Am. St. Rep. 655; and Lane v. Atlantic Works, HI Mass. 136. These opinions have been read with the deference and consider- ation to which the judgments of learned and conscientious jurists are always entitled, but they are not controlling authority in a federal court; and the xaews which have already been expressed in this opinion, the reasons which have been given for them, and the authorities which have been cited in support of them commend themselves more forcil)ly and persuasively to our minds than the opinions and reasoning in the cases upon which the counsel for the plaintiff rely. Jurisdiction over controversies between citizens of different states was conferred upon the national courts for the avowed purpose of securing to the litigants in such cases the benefit of the independent opinions of the judges of those courts. It is the right of these litigants to the independent and conscientious judgment of the judges of the national courts to whom they present their controversies upon the merits of the issues they raise, and a complete and careful discharge of the duties imposed upon them requires of the members of the federal judiciary that they shall carefully form and express their independent judgments upon the questions pre- sented by such controversies. In the case at bar this duty has been dis- charged, not without some study, deliberation, and care, and the con- clusion of this court is that the record before it conclusively shows that the act of the strange boy who opened the door of the well of the elevator was the sole proximate cause of the plaintiff's injury. Counsel earnestly invoke the rule announced in Railway Co. v. Kellogg, 94 U. S. 469, 474, 476, 24 L. Ed. 256, which was followed by this court in Railway Co. v. Callaghan, 6 C. C. A. 205, 208, 56 Fed. 988, 991, and Insurance Co. v. Melick, 65 Fed. 178, 180, 12 C. C. A. 544, 546, 27 L. R. A. 629, that the question. What is the proximate cause of an injury, is ordinarily a question for the jury, and they stren- uously maintain that the Circuit Court erred because it refused to sub- mit the question which has been considered to the jury upon the trial below. There is, however, always a preliminary question for the judge at the close of the evidence before a case can be submitted to the jury, and that question is, not whether or not there is any evidence, 302 FOTTLER V. MOSELEY. [cHAP. III. ])ut whether or not there is any substantial evidence upon which a jury can properly render a verdict in favor of the party who produced it. "' Brady v. Chicago Ry., 114 Fed. 100; Ry. v. Be'lliwith, 83 Fed. 437; Association v. Wilson, 100 Fed. 368; Commissioners v. Clark, 94 U. S. 278; North Pennsylvania R. R. v. Bank, 123 U. S. 727; Ry. V. Converse, 139 U. S. 469; Laclede Mfg. Co. v. Ins. Co., 60 Fed. 351; Gowen v. Harley, 56 Fed. 973; Motey v. Granite Co., 74 Fed. 155. FOTTLER V. MOSELEY. SuPKEME Judicial Court of IMassachusetts, 1904. [Reported 179 Mass. 295.] Tort for deceit, alleging that, rehing upon the false and fraudulent representations of the defendant, a broker, that certain sales of the stock of the Franklin Park Land Improvement Company, in the Boston Stock Exchange from January 1 to March 27, 1893, were genuine transactions, the plaintiff revoked an order for the sale of certain shares of that stock held for him by the defendant, whereby the plaintiff suffered loss. Writ dated February 17, 1896. At the first trial of the case in the Superior Court a verdict was ordered for the defendant, and the exceptions of the plaintiff were sustained by this court in a decision reported in 179 Mass. 295. At the new trial in the Superior Court before Sherman, J., it appeared that one Moody Merrill, a director and officer of the Franklin Park Land Improvement Com- pany absconded late in May or early in June of 1893, and that imme- diately upon his departure it was discovered that he had embezzled nearly $100,000 of the funds of that company, the result of which was that the market price of the stock immediately fell and the stock could not be sold; that the plaintiff from the time of the discovery of the defendant's alleged fraud did his l)est to sell his stock, Init was unable to do so at more than S3 a share, at which price he sold it after bringing this action. The plaintiff among other requests asked the judge to rule, " That it is of no consequence so far as the defendant's liability is concerned that an outside intervening cause has been the sole or contributing cause of the dechne in price to which the plaintift''s loss is due." The judge refused this and other rulings requested by the plaintiff, and instructed the jury, among other things, as follows: " If you find the fair market value of that stock was always above what it was fictitiously quoted, or equal to it, and that it was so on the 25th of March, 1893, and remained so and would have remained so, except for the embezzlement and absconding of IVIoody Merrill, then the plaintiff is not entitled to recover. " If you find that Moody Merrill's going away did destroy the value SECT. IV.] FOTTLER V. MOSELEY. 303 of the stock, practically destroy its value, then the plaintiff is not en- titled to recover anything. "You may take all the e\'idence on this subject, the fact of what Moody Merrill did, and what effect it had upon the market value of this stock, and if that destroyed the market A^alue, then, as I have told you, the plaintiff is not entitled to recover anything. If his going away and embezzlement did not affect the market value of this stock, then the plaintiff may recover the full value of it." The judge submitted to the jury the following questions, which the jury answered as stated below: "1. Did the defendant make a representation to the plaintiff on or about March 2.5, 1893, that the quotations in the Boston Stock Ex- change of Franklin Park Land and Improvement Company stock were quotations of actual and true sales?" The jury answered "Yes." ^'2. Were such quotations at or about the same sum as the quota- tions of actual sales and the sales at public auction?" The jury answered "Yes." "3. What was the fair market value of said stock on or about March 25, 1893?" The jury answered "$28.50 per share." "4. What was the fair market value of said stock on the last day of May, or immediately prior to June, 1893, the day before Moody Mer- rill's absconding?" The jury answered "S27.75 per share." The jury returned a verdict for the defendant; and the plaintiff al- leged exceptions. Knowlton, C. J. The parties and the court seem to have assumed that the evidence was such as to warrant a verdict for the plaintiff under the law stated at the pre\dous decision in this case, reported in 179 Mass. 295, if the diminution in the selling price of the stock came from common causes. The defendant's contention is that the embez- zlement of an officer of a corporation, being an unlawful act of a third person, should be treated as a new and independent cause of the loss, not contemplated by the defendant, for which he is not liable. To create a liability, it never is necessary that a wrongdoer should contemplate the particulars of the injury from his wrongful act, nor the precise way in which the damages will be inflicted. He need not even expect that damage will result at all, if he does that which is un- lawful and which involves a risk of injury. An embezzler is criminally liable, notwithstanding that he expects to return the money appropria- ted after having used it. If the defendant fraudulently induced the plaintiff to refrain from selling his stock when he was about to sell it, he did him a wrong, and a natural consequence of the wrong for which he was liable was the possibility of loss from diminution in the value of the stock, from any one of numerous causes. Most, if not all, of the causes which would be likely to affect the value of the stock, would be acts of third persons, or at least conditions for which neither the plain- tiff nor the defendant would be primarily responsible. Acts of the 304 BELLING V. COLLTHBUS CONSTRUCTION CO. [ciIAP. III. officers, honest or dishonest, in the management of the corporation, would be among the most common causes of a change in value. The defendant, if he fraudulently induced the plaintiff to keep his stock, took the risk of all such changes. The loss to the plaintiff from the fraud is as direct and proximate, if he was induced to hold his stock until an embezzlement was discovered, as if the value had been dimin- ished by a fire which destroyed a large part of the property of the corporation, or by the unexpected bankruptcy of a debtor who owed the corporation a large sum. Neither the plaintiff nor the defendant would be presumed to have contemplated all the particulars of the risk of diminution in value for which the defendant made himself liable by his fraudulent representations. It would be unjust to the plaintiff in such a case, and impracticable, to enter upon an inquiry as to the cause of the fall in value, if the plaintiff suffered from the fall wholly by reason of the defendant's fraud. The risk of- a fall, from whatever cause, is presumed to have been contemplated by the defendant when he falsely and fraudulently induced the plaintiff to retain his stock. V\e do not intimate that these circumstances, as w^ell as others, may not properly be considered in determining whether the plaintiff was acting under the inducement of the fraudulent representations in con- tinuing to hold the stock up to the time of the discovery of the em- bezzlement. The false representations may or may not have ceased to operate as an inducement as to the disposition of his stock before that time. Of course there can be no recovery, except for the direct results of the fraud. But if the case is so far established that the plaintiff, immediately upon the discovery of the embezzlement, was entitled to recover on the ground that he was then holding the stock in reliance upon the fraudulent statements, and if the great diminu- tion in value came while he was so holding it, the fact that this diminu- tion was brought about by the embezzlement of an officer leaves the plaintiff's right no less than if it had come from an ordinary loss. Exceptions sustained. BELLING V. COLUMBUS CONSTRUCTION CO. Supreme Judicial Court of Massachusetts, 1905. [Reported 188 Mass. 430.] Barker, J. The plaintiff procured Italian laborers for the service of the defendant, a corporation engaged in the construction of a public work at Weston. He had erected a temporary building on land of another person near the locahty of the work. In a part of tliis building he kept goods which by an agent he sold to the laborers. The rest of the building was fitted with bunks for sleeping places and was occupied by the laborers for the use of wliich th§y paid him. When cold weather came they de- SECT. IV.] BELLING V. COLUMBUS CONSTRUCTION CO. 30.5 manded a fire to heat their quarters, and threatened to quit work unless a stove and fuel were furnished. One Keefe was the defendant's foreman. He requested the plain- tiff's agent to pronde a stove to keep the lal)orers comfortable, and the agent promised that he would write to the plaintiff and when he heard from him would get a stove. Some days later Keefe told the agent that unless the stove was put in he Keefe himself would order it, give it to the men and let them set it up. To this the agent ol:)jected and told Keefe that he had no right to put in a stove without the permission of the plain- tiff. Finally Keefe procured a stove and had it set up by a carpenter and thereafter furnished the laborers with coal and wood and the\- con- stantly kept up a fire, themselves making the fires and helping themselves to the defendant's wood and coal. There was no zinc under the stove and the floor of the building was of wood with wide cracks between the boards. About one hundred feet away the defendant had a storehouse in which barrels of oil and gasoline were kept but not under lock and key, and to which the laborers had access for the purpose of filling torches which they used to gi\e Hght by wliich to work in a tunnel. The laborers who built the fires frequently helped themselves to the gasohne and used it in kindling fires in the stove. Keefe became aware of this and called the attention of the agent to it and told him he must stop it, but did noth- ing to secure the gasoline, although he notified the employee in charge of the gasoline to prevent the laborers from getting it to use in the stove. The plaintiff's agent knew that the men were lighting the fires with the gasoline but it did not appear that he tried to prevent its use. Some three weeks after the stove had been set up, as a laborer was kindling the fire, there was an explosion of gasoline; a few drops fell on the floor and a fire ensued which consumed the building and the plaintiff's goods therein. The case was sent to an auditor who found that the loss caused to the plaintiff by the fire was $1,622.64, but after stating in his report that and other facts, found for the defendant. Thereafter the case was tried by a judge of the Superior Court without a jury. The auditor's report was read. The defendant admitted that the plaintiff himself was in New York, continuously from November 5 to November 18, the fire ha\ing occurred on November 22. The plaintiff testified to his whereabouts from Novem- ber 18 to November 23, and his e\idence tended to show that he was not at Weston after the stove was set up and before the fire. The auditor having stated in his report that after the stove was set up Keefe had an interview with the plaintiff at which he informed the plaintiff that repeated efforts had been made to get a sto\e for the men and had stated to him what action he had taken in the matter the plaintiff' said " it was all right" and having also reported that the plaintiff' must have known that the. stove had been set Up and must have seen it, the plaintiff fur- ther testified that he never had any conversation with Keefe about the 306 BELLING V. COLUMBUS CONSTRUCTION CO. [cHAP. III. stove. This wath the auditor's report was all the material e\adence at the trial. The presiding judge found for the defendant and reported the case for the determination of this court. It is plain that from the auditor's report as eAadence, notwithstanding the defendant's admission at the trial that the plaintiff was in New York from the fifth to the eighteenth of November and the plaintiff's testimony that he nexer had any con\^ersation with Keefe about the sto\'e, the judge may have found that the plaintiff knew that the stove had been put in and had assented that Keefe's actions in the matter were satisfactory to him. This of itself would seem to be enough to re- quire us to order judgment to be entered for the defendant on the finding in its favor. But assuming that Keefe's act in putting in the stove was an uncon- doned trespass a majority of the court are of opinion that the plaintiff cannot recover. The putting in of the stove for the use of the laborers did not of itself cause the destruction by fire of the plaintiff's building and goods. The possibility that the laborers in using the stove might neghgently set the building on fire was too remote a contingency to render the defendant liable for it as a natural consequence of the t'*espass. See Hawks v. Locke, 139 IVIass. 205, 208, and cases cited. Nor would the facts that the defendant kept gasoline in barrels in a storehouse one hundred feet away and not under lock and key, and that the laborers without right helped themselves to the gasoline and by negli- gently using it burned the building and goods, make the defendant re- sponsible. A wrongful act of the laborers against which Keefe had pro- vided by his warning to the plaintiff's agent, as well as by his orders to the defendant's employee in charge of the storehouse, and the subsequent negligence of the laborers themseh'es in using the misappropriated gaso- line both intervened between the keeping of the gasohne in an unlocked storehouse and the loss to the plaintiff. It was not under all the circum- stances imperative upon the judge to find that it was negligence on the part of the defendant to keep gasoline in an unlocked storehouse. Nor, if he found that so to keep it was wanting in due care, was it imperative upon him to find that according to the usual experience of mankind the taking of the gasoline and its negligent use by the laborers ought to have been anticipated as probable. Stone v. Boston & Albany Railroad, 171 Mass. 536; Glassey v. Worcester Consolidated Street Railway, 185 Mass. 315. It is not contended that the laborers when kindling the fire were acting "wathin the scope of their employment as servants of the defendant. Judgment for the defendant on the finding} 1 See also CufF r. Newark R. R., 35 N. J. L. 17. — Ed. SECT. IV.] SCHTt'ARTZ V. CALIFORNIA GAS & ELECTRIC CORP. 307 SCirVVARTZ T. CALIFORNIA GAS & ELECTRIC CORPORATION. [Supreme Court of California, 1912.] [Reported 163 Cal. .398.] Per Curiam. This action was brought to recover damages for injuries to a horse known as "Joe Terry" belonging to plaintiff, caused, it is alleged, by the horse stepping upon or against an insulator dropped by an employee of defendants upon a tract of land in Yolo County known as the "Van Zee Place," occupied by plaintiff at the time of such injuries. The jury gave a verdict in favor of plaintiff for the sum ol $6,475, for which amount judgment was entered. An ap- peal was taken by defendants from the judgment and from ah order den^tdng their motion for a new trial. Two decisions have been ren- dered on these appeals by the district court of appeal for the third district, the judgrrient and order being reversed by the first decision on account of error of the trial court in refusing an instruction as re- quested by defendants and giving the same in a modified form, and a rehearing having been granted by said court, the judgment and order were affirmed by the second decision. , An application for a hearing in this court was then granted. We are of the opinion that the first decision of the district court of appeal was correct. It is essential to a proper understanding of the question presented in the matter of said instruction that a statement be made as to some of the facts. The defendants maintained and operated an electric transmission line, consisting of poles, cross-arms, wares and insulators, along certain highways in Yolo County, and the line passed the "Van Zee Place" just outside the city of \Yoodland. In the summer and early autumn of the year 1906 the line was reconstructed by defendants, new insula- tors put in on many poles, and every alternate pole removed, making the distance between poles 264 feet, instead of 132 feet, which was the distance prior to the reconstruction. At the time of this work the " Van Zee Place" was occupied by one L. E. Hutchings. A portion of this place consisted of an inclosed parcel of land fronting on the road, on which was a house, and another adjoining inclosed parcel on which was a barn. The land inclosed with the barn was knowoi as the barnyard or corral. The land inclosed with the house was known as the house- yard and old vineyard. The \nneyard portion fronted on the road and contained some ten or twelve rows of vines, varying, according to the testimony of Mr. Schwartz, the husband of plaintiff, from two inches to three feet in height. The inclosed portion containing the \'ineyard was not used by Mr. Hutchings for stock. Some time in November, 308 scirv\'AiiTZ v. California gas & electric corp. [cbl\p. hi. 1906, plaintiff leased from ]Mr. Hutchings the two parcels of land we have referred to, and went into occupancy thereof. On April 10, 1907, plaintiff's husband turned the horse into this old \'ineyard por- tion while his stall was being cleaned. A few minutes later, the stall having been cleaned, he went after the horse to take him back. He testified: "As I started to halter him he l)it at me and I stepped back. I stepped back and corrected him for attempting to bite me. I held the halter for him to put his nose in, and the horse, in stepping back to put his nose in the halter, moved back and came in contact with some- thing, which I found afterwards was a broken insulator." The insu- lator was similar to those in use on defendants' line at the time the reconstruction work was done, some of which were then removed. They had an eleven-inch porcelain top, shaped something like a saucer, and a glass center about nine inches long, and weighed about twelve pounds. Mr. Schwartz said that the saucer part of this insulator was whole and laid next to the ground. The result of the contact of the horse with this insulator, the glass part of which was broken, was, ac- cording to Mr. Schwartz, that the horse was severely cut on the right hind foot between the hoof and the fetlock. The horse was a stallion and A'aluable only for breeding purposes, and there was testimony sufficient to sustain a conclusion that he was thereby rendered useless for such purposes. There was testimony given by one William Weight, who was over eighty years of age, and who was employed by Hutchings on the "Van Zee Place" at the time of such reconstruction work in the summer and autumn of 1906, to the effect that he saw one of the men engaged in such work drop an insulator from the cross-arm of one of the poles into this vineyard, and that the insulator fell into the \^ne- yard at the northwest corner, some seven or eight feet from the fence. This testimony was given some two years after the accident to the horse. He said that he saw the insulator in the vineyard many times there- after, "passed it nearly every day," but did not pick it up becau.se it did no harm there, and that they were not using the vineyard for stock. It was clearly established that the horse was injured in the northwest corner of the \aneyard, and Mr. Schwartz said that the insulator was at a point two or three feet from the north fence and between six and ten feet from the west fence, which was the road fence. Evidence introduced by the defendants was very clear to the effect that at the time this work was done by the defendants, the nearest pole to the northwest corner of the \Tineyard on one side was sixty feet and on the other side seventy-two feet. Mr. Hutchings, then and for many years prior occupant of the place, testified in effect that there had been no change in the poles except that every other pole was taken out, and his testimony and that of Mr. Ashley, taken together, is clearly to the efTect already stated. This evidence was in no way contradicted except in so far as it was inferentially contradicted by the evidence of Mr. W^eight, to which we have already referred. SECT. IV.] SCHWARTZ V. CALIFORNIA GAS & ELECTRIC CORP. 309 In the light of these facts, which we have stated as strongl^>' in favor of plaintiff as the record warrants, the district court of appeal in its first opinion declared in part as follows : — "Many points are made for a reversal of the judgment. Most of them are without merit, some of them probably involve error without prejudice, but one necessitates, as we view it, a new trial of the action. "Defendants requested the court to instruct the jury as follows: 'You cannot find for the plaintiff in this case unless you believe from the evidence: " 1 . That plaintiff's horse was injured by an insulator, the property of defendants. 2. That the employees of defendants negligently placed said insulator on the premises where it is claimed said horse was injured and at the point where the emdence shows said horse was in fact injured.' As given by the court the second subdivision was modi- fied to read as follows: 'That the employees of defendants negligently placed or permitted said insulator to remain on the premises where it is claimed said horse was injured, and at a point where the evidence shows some injury might result.' "In the language of appellants: 'As proposed, this instruqtion lim- ited responsibility to the placing of the insulator at the point where the horse was injured. The modification made the defendants liable if they placed it anyw'here on the premises.' "The proposed instruction was based upon the theory that an in- tervening, independent agency may have been the proximate cause of the injury. It seems plain, that if appellants carelessly dropped the in- sulator upon the premises and did not remove it they would be guilty of negligence, but after it was dropped if somebody else picked it up and moved it to this spot where the damage was done, it was the negli- gence of the latter that proximately caused the injury. " It would not be a case of correlative and concurring causes, but of proximate and remote agencies independent of each other. The rule is well settled that an injury is not actionable which would not have re- sulted from the act of negligence, except for the interposition of an independent cause. (Chicago etc. Ry. Co. v. Elliott, 55 Fed. 949, [20 L. R. A. 582, 5 C. C. A. 347]; Cole v. German Savings and Loan Society, 124 Fed. 115, [63 L. R. A. 416, 59 C. C. A. 593]; Western Union Tel. Co. v. Schriver, 141 Fed. 550, [4 L. R. A. (N. S.) 678, 72 C. C. A. 596].) " In the Cole case, it appears that the plaintiff entered and passed along a hall in the building of the defendant to take the elevator, the well or shaft of which opened into the hall. A boy, who was a stranger to her and to the defendant, hurried past her in the hall, pushed the sliding door of the well of the elevator, which was open from one to ten inches, back as far as it would go, and stepped back. The plaintiff sup- posed the boy was the operator of the elevator, and stepped in. The elevator was at an upper floor in charge of its regular operator, and 310 SCHWARTZ V. CALIFORNIA GAS & ELECTRIC CORP. [cHAP. III. plaintiff fell to the bottom of the well and was injured. The hall was so dark that it was difficult, but not impossible, to see the elevator when it was at the lower floor, and when it was not there nothing but darkness was visible in the well. It was held that the negligent acts and omissions of the defendant were not, and those of the strange boy were, the proximate cause of tlie injury. ' The latter constituted an independent intervening cause which interrupted the natural se- quence of events between the negligence of tlie defendant and the injury of the plaintiff, insulated the defendant's negligence from the plaintiff's hurt, broke the causal connection between them and produced the injury.' The negligence of the defendant in that case, as stated by the court, consisted of permitting such a degree of darkness in the hall, of allowing boys to ride upon and sometimes operate the elevator, of neglecting to provide a lock for the door which would prevent any one from unlocking it from the outside and of permitting the door to stand open from one to ten inches. Defendant there was indeed guilty of gross negligence, but it was held not to be the proximate cause of the injury. " In Berry v. San Francisco & N. P. R. R. Co., 50 Cal. 435, it was held that the injury done to plaintiff's wheat by the hogs of third persons was not the direct damage resulting from the trespass of defendant in destroying a portion of plaintift"'s fences by reason of which the hogs obtained access to said premises. "In Loftus V. De Hail, 133 Cal. 214, [65 Pac. 379], the action was brought to recover damages for injuries sustained by the plaintiff, an infant seven years of age, from falling into a cellar of defendants, situated on a vacant lot in the city of Los Angeles. The defendants were the owners of the lot, w^hich was located in a populous and thickly settled quarter of the city. Upon the lot had stood a house, which had Vjeen removed, leaving upon the premises a cellar partially filled with debris. The premises were left in an open and unguarded condition. The plaintiff lived in the neighborhood of the lot, and, upon the day of the accident, w^as engaged with other children in playing around the cellar, and while so engaged was by her younger brother pushed into the cellar, sustaining the injuries complained of. It was held by the court that his act was the proximate cause of the injury, and that ' it was not in her play and as part of her play and in ignorance of the danger of her play, but she was injured by the violence of her little brother in a matter apart.' The foregoing are a few of many cases illustrating the operation of an independent proximate cause producing injury, and they seem to be in harmony with the principle embodied in said pro- posed instruction here. " Of course, if there were no e\'idence in the record tending to sup- port said theory the court's action would be adjudged entirely without prejudice. While there was no direct evidence that any third party moved said insulator, circumstances do appear from which a rational II SECT. IV.] SCHWARTZ V. CALIFORNIA GAS & ELECTRIC CORP. 311 inference might be drawn to that effect, and therefore it was a proper question to submit to the jury. The only witness who testi- fied that he saw the insulator fall from the pole was one William Weight, an old man past eighty, who admitted his eyesight was bad. He testified that he was employed on the ' Van Zee ' Place during the summer and forepart of the fall of 1906, when it was occupied l)y Lee Hutchings. ' During that time men worked on the electric pole line. They were changing insulators and putting up wires and one of the men dropped an insulator into the northwest corner of the vineyard. The man was on a cross-bar when he dropped the insulator, which was as large as a cuspidor.' Other evidence shows clearly that the near- est pole to the northwest corner of the vineyard was si.xty feet, and in another direction there had been one seventy-two feet from the corner. The insulator weighed twelve pounds and the poles were thirty feet high. It was, therefore, quite a probable inference that within the eight or nine months intervening before the accident some other party moved the insulator, as it could not have ' dropped ' to a point on tlie ground sixty or seventy feet from the foot of the pole. "To this complaint by appellants of the action of the court in re- fusing said instruction the only answer made by respondent is as fol- lows: 'The modification of instruction 18 was proper because the in- struction as proposed was erroneous in that it was an instruction as to the facts. The language of subdivision 2 of the instruction was a straight statement that the evadence shows that the horse was not injured.' In this respondent is clearly in error. The instruction is altogether hypothetical, it does not assume any fact as proven, but states what must be shown to justify a verdict for plaintiff. The point seems to be a i-ital one in the case and it is believed that the defendants were en- titled to the instruction and for this reason the judgment and order are reversed." Learned counsel for plaintiff ably and earnestly assailed this opinion and the consequent judgment of reversal in their petition for a rehearing in the district court of appeal, and in their brief filed subsequently in this court, but we believe that it correctly disposes of this appeal. Some of the points so made by counsel are sufficiently disposed of by such opinion. We are of the opinion that the requested instruction was not an instruction as to the facts, and that it correctly stated the law applical)le in view of the testimony. We are satisfied that none of the instructions given the jury substantially covered the subject matter of the requested instruction, in so far as the same referred to the ques- tion of an intervening, independent agency. We do not consider Merrill V. Los Angeles etc. Co., 158 Cal. 499, [139 Am. St. Rep. 134, 111 Pac. 534], in any way opposed to our conclusion herein. The judgment and order den^^drig a new trial are reversed. Mr. Justice Sloss, deeming himself disqualified, does not participate herein. \ Rehearing denied. 312 WATSON V. KENTUCKY & INDIANA BRIDGE & R. R. CO. [CHAP. III. WATSON I'. KENTUCKY & INDIANA BRIDGE & RAILROAD CO. Court of Appeals of Kentucky, 1910. [Reported 1.37 Ky. 619.] . Seattle, J. This action was instituted by the appellant, John Wat- son, in the court below, against the appellees, Kentucky & Indiana Bridge & Railroad Company, hereinafter called the Bridge & Railroad Company, the Southern Railway Company, the Southern Railway Company in Kentucky, and the Union Tank Line Com- pany, to recover $20,000 damages for injuries sustained to his person on the night of June 14, 1907, from an explosion of gas caused, as alleged, by the negligence of the appellees. It was, in substance, al- leged in the petition as amended that while a tank car, owned by the appellee Union Tank Line Company, and filled with a highly explosive .substance known as gasoline, was being transported through a pop- ulous section of the city of Louisville over the roadbed of the appellee Bridge & Railroad Company, it was derailed and its valve broken, thereby causing all the gasoline to escape and flow in 'large quantities on the street and into the gutters; that from the gasoline thus flowing and standing in pools upon the street and gutters there arose and spread over the neighborhood of the place of derailment and into the houses of the residents thereof, great quantities of highly explosive and com- bustible gas which, three hours after the derailment of the tank car, exploded with force from contact with a lighted match thrown on the street by one Chas. Duerr, who claimed to have used it in igniting a cigar; that the explosion threw appellant from his bed and almost de- molished his house, from the ruins of which he was taken unconscious and bleeding with a fractured jaw and one cheek nearly torn from his face. It was further charged in the petition that the explosion and appel- lant's consequent injuries resulted from the negligence of all the appel- lees; the negligence of the Union Tank Line Company lying, as alleged, in its failure to provide the tank car with proper trucks and main valve; that of the Bridge & Railroad Company in failing to maintain in a safe condition the roadbed and track at the point of derailment; in permitting the tank car to remain at the place of derailment in its wrecked condition an unreasonable time, and in allowing ignorant and careless meddling on the part of their servants with the main valve of the tank after it was broken, whereby the flow of the gasoline from the tank was increased instead of diminished.^ . . . The lighting of the match by Duerr havdng resulted in the explo- sion, the question is, was that act merely a contributing cause, or ^ Part of the opinion is omitted. — Ed. SECT. IV.] WATSON V. KENTUCKY & INDIANA BRIDGE & R. R. CO. 31 o the efficient and, therefore, proximate cause of appellant's injuries? The question of proximate cause is a question for the jury. In holding that Duerr in lighting or throwing the match acted maliciously or with intent to cause the explosion, the trial court invaded the pro\dnce of the jury. There was, it is true, evidence tending to prove that the act was wanton or malicious, but also evadence conducing to prove that it was inadvertently or negligently done by Duerr. It was there- fore for the jury and not the court to determine from all the e^^dence whether the lighting of the match was done by Duerr inadvertently or negligently, or whether it was a wanton and malicious act. As said in Milwaukee Railroad Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 2.56: "The true rule is that what is the proximate cause of the injury is ordinarily a question for the jury. It is not a question of science or legal knowledge. It is to be determined as a fact in view of the circumstances of fact attending it." Snydor v. Arnold, 122 Ky. 557, 92 S. W. 289, 28 Ky. Law Rep. 1252. In Thompson on Negligence, § 161, it is said: "On principle, the rule must be here, as in other cases, that, before the judge can take the question away from the jury and determine it himself, the facts must not only be undisputed, but the inference to be drawn from those facts must be such that fair-minded men ought not to differ about them. It must be concluded that tliis is so, when it is considered that proximate cause is a cause which would probably, according to the experience of man- kind, lead to the event which happened, and that remote cause is a cause which would not, according to such experience, lead to such an event. Now, whether a given cause will probably lead to a given re- sult is plainly to be determined by the average experience of man- kind; that is, by a jury rather than by a legal scholar on the bench." No better statement of the law of proximate cause can be given than is found in 21 Am. & Eng. Ency. of Law (2d ed.) 490, quoted with approval in Louis\'ille Home Telephone Company r. Gasper, 123 Ky. 128, 93 S. W. 1057, 29 Ky. Law Rep. 578, 9 L. R. A. (N. S.) 548: " It is well settled that the mere fact that there have been intervening causes between the defendant's negligence and the plaintiff's injuries is not sufficient in law to relieve the former from liability; that is to say, the plaintiff's injuries may yet be natural and proximate in law, although between the defendant's negligence and the injuries other causes or conditions, or agencies, may have operated, and, when this is the case, the defendant is liable. So the defendant is clearly respon- sible where the intervening causes, acts, or conditions were set in motion by his earlier negligence, or naturally induced by such wrongful act or omission, or even, it is generally held, if the intervening acts or conditions were of a nature the happening of which was reasonabl\' to have been anticipated, though they may have been acts of the plaintiff himself. An act or omission may yet be negligent and of a nature to charge a defendant with liability, although no injuries would have 314 WATSON v. KENTUCKY & INDIANA BRIDGE & R. R. CO. [cHAP. III. been sustained but for some intervening cause, if the occurrence of the latter might have been anticipated. ... A proximate cause is that cause which naturally led to and which might ha\'e been expected to produce the result. . . . The connection of cause and effect must be established. It is also a principle well settled that when an injury is caused by two causes conciuTing to produce the result, for one of which the defendant is responsible, and not for the other, the defendant cannot escape responsibility. One is liable for an injury caused by the concurring negligence of himself and another to the same extent as for one caused entirely by his own negligence." Black's Law & Prac- tice, §21; Thompson on Negligence, §§47-52; Whitaker's Smith on Negligence, 27; 29 Cyc. 488-502. If the presence on Madison Street in the city of Louis\alle of the great volume of loose gas that arose from the escaping gasoHne was caused by the negligence of the appellee Bridge & Railroad Company, it seems to us that the probable consequences of its coming in contact with fire and causing an explosion was too plain a proposition to admit of doubt. Indeed, it was most probable that some one would strike a match to light a cigar or for other purposes in the midst of the gas. In our opinion, therefore, the act of one lighting and throwing a match under such circumstances cannot be said to be the efficient cause of the explosion. It did not of itself produce the explosion, nor could it have done so without the assistance and contribution resulting from the primary negligence, if there was such negligence, on the part of the appellee Bridge & Railroad Company in furnishing the presence of the gas in- the street. This conclusion, however, rests upon the theory that Duerr inadvertently or negligently lighted and threw the match in the gas. This \aew of the case is sustained by the following leading cases, all decided by this court: Snydor v. Arnold, 122 Ky. 557, 92 S. W. 289, 28 Ky. Law Rep. 1252; Louisville Gas Co. v. Gutenkuntz, 82 Ky. 432; ^Yhitman-McNamara Tobacco Co. r. Warren, 66 S. W. 609, 23 Ky. Law Rep. 2120; Louisville Home Telephone Co. r. Gasper, 123 Ky. 128, 93 S. W. 1057, 29 Ky. Law Rep. 578, 9 L. R. A. (N. S.) 548. The cases supra are, indeed, in point of fact and principle so analogous to the case under consideration as to completely control its determination, and to render further discussion of it unnecessary. If, however, the act of Duerr in lighting the match and throwing it into the vapor or gas arising from the gasoline was malicious, and done for the purpose of causing the explosion, we do not think appellees would be responsible, for while the appellee Bridge & Railroad Com- pany's negligence may have been the efficient cause of the presence of the gas in the street, and it should have understood enough of the consequences thereof to have foreseen that an explosion was likely to result from the inadvertent or negligent lighting of a match by some person who was ignorant of the presence of the gas or of the elfect of lighting or throwing a match in it,it could not have foreseen or deemed it SECT. IV.] KELSEY V. REBUZZINI. 315 probable that one would maliciously or wantonly do such an act for the evil purpose of producing the explosion. Therefore, if the act of Duerr was malicious, we quite agree with the trial court that it was one which the appellees could not reasonably have anticipated or guarded against, and in such case the act of Duerr, and not the primary negligence of the appellee Bridge & Railroad Company, in any of the particulars charged, was the efficient or proximate cause of appellant's injuries. The mere fact that the concurrent cause or intervening act was un- foreseen will not relie^'e the defendant guilty of the primary negligence from liability, but if the intervening agency is something so unexpected or extraordinary as that he could not or ought not to have anticipated it, he will not be liable, and certainly he is not bound to anticipate the criminal acts of others by which damage is inflicted and hence is not liable therefor. 29 Cyc. 501-512; Sofield v. Sommers, 9 Ben. 526, 22 Fed. Cas. 769, Cas. No. 13, 157; Andrews v. Kinsel, 114 Ga. 390, 40 S. E. 300, 88 Am. St. Rep. 25. KELSEY V. REBUZZINI. Supreme Court of Errors of Connecticut, 1913. [Reported 89 Atl. Rrp. 170.] The defendant and one Woodruff were owners of adjoining tracts of land in Guilford. The l)oundary line between these tracts was the center line of a stream known as West River, which flows in a southerly direction. The defendant owned the east tract and Woodruff the west. The southern boundary line of the two tracts was a continuous line, and one Cobb owned a tract adjacent to l)oth pieces on the south. Through this Cobb land the stream flowed. The boundary fence be- tween the defendant and Woodruff was built of posts and three strands of A^re. From the Cobb lot northerly for a little more than one-half the length of the other two lots it was situated on the westerly or Woodioiff side of the stream. This portion was by agreement of the parties main- tained by Woodruff". Beginning at the termination of this portion of the fence it crossed the stream and continuefl northerly on the easterly or Rebuzzini side of the stream. This section, pursuant to the agree- ment referred to, was maintained by the defendant. On July 16, 1912, the Woodruff lot, as the defendant well knew, was used for the pasturage of cattle, and 11 heifers belonging to the plaintiff were pastured there for hire. On the previous day a cow belonging to the 316 KELSEY V. REBUZZINI. [cHAP. III. defendant had escaped from his land onto Woodruff's. In the effort to drive back the cow two of the defendant's children took down the two upper strands of wire in one of the lengths of fence belonging to the defendant to maintain. They were unable to replace the wire, and so reported to the defendant upon his arrival home that evening. He took no steps to repair the fence until after the occurrences hereinafter related. On the following day nine of the plaintiff's heifers passed through the fence at the point where the wires had been torn down into the defendant's lot. They then turned south along the stream, and finally into it and dowm it until the.y reached ("obb's lot, onto which they passed by reason of there being no sufficient fence across the stream at that point. A portion of Cobb's land lying back some four or five rods from the stream was cultivated by him, and had corn and pota- toes growing upon it, the potatoes being nearest the stream. Some time prior to this day Cobb had caused a poisonous mixture to be sprayed upon the potato \anes for their protection. This mixture had been prepared on the west bank of the stream by Cobb's agents, and in mixing it they had spilled some portion of it upon the grass upon the bank of the stream, and also to some extent upon the grass between the place where it was mixed and the potatoes, and in spraying the potatoes some of the mixture also was sprayed upon the grass along the edge of the potatoes. When the plaintiff's heifers reached Cobb's land they left the stream and passed along the west bank, cropping the grass where the poison had been spilled and sprayed, and thus ate some of the poison from the effects of which five of them died. They ate no potato tops. The defendant was familiar with the use of poisonous substances for spraying potato vines, but did not know that Cobb's potatoes had been sprayed ; nor did he know that any poison had been spilled or sprayed upon the grass. The division fence between the defendant and Woodruff was not a legal fence as Woodruff knew, but he did not know the condition of it as left by the defendant's children. Prentice, C. J. The plaintitf is not entitled to a judgment against the defendant unless two legal propositions are well founded, to wit: (1) That the defendant owed to him for the protection of his heifers grazing in Woodruff's pasture, from the consequences to them of es- cape therefrom, the duty of maintaining a sufficient division fence at the point where they made their escape onto the defendant's premises; and (2) that the breach of this duty, arising from the insufficiency of the fence at the point of escape, was the proximate or legal cause of the loss which befell him through the death of his heifers. The first of these propositions may be assumed without decision, and yet the plain- tiff must fail in his action by reason of his failure to support the second. (1) We have accepted as the most satisfactory definition of a proxi- mate cause as related to a subsequent event, as one " which, in a natural sequence, unbroken by any new and intervening cause, produces that event, and without which that event would not have occurred. It SECT. IV.] KELSEY V. REBUZZINI. 317 must be an efficient act of causation, separated from its effect by no other act of causation." Smith v. Conn. Ry. & Lighting Co., 80 Conn. 268, 270, 67 Atl. 888, 889 (17 L. R. A. (N. S.) 707) ; Swayne v. Conn. Co., 86 Conn. 439, 445, 85 Atl. 634, 737. The acceptance of this not unusual definition, however, does not by any means close the door of debate as to what it signifies in its practical application to varying conditions. There remains, for instance, the question of what it meant by "natural se- quence," and what by "a new and intervening cause" breaking the sequence. Fortunately the exigencies of this case do not call upon us to enter into the discussion which has been invoked by attempts to arrive at a comprehensive answer to these questions. The facts, as found, present a situation which does not lie in fairly debatable ground. The immediate cause of the death of the plaintiff's heifers was their cropping poisoned grass upon the' Cobb lot. The insufficient length of fence through which they passed to the defendant's premises difl not harm them. It did not set in motion any agency of destruction which before it ceased to operate either directly, or through the interposi- tion of some other agency set in motion by it, caused the death of the heifers. It brought about a new condition or situation rather. Smith- wick V. Hall & Upson Co., 59 Conn. 261, 269, 21 Atl. 924, 12 L. R. A. 279, 21 Am. St. Rep. 104. This new situation was not one which exposed the cattle to new danger except as the intervention of some person's wrongful conduct might have created or might create such dan- ger. Without such intervention they would, as far as appears, have been as safe upon the defendant's land as upon Woodruff's. Such in- tervention there was. Either Woodruff or Cobb or the defendant, we know not which, had failed to maintain a sufficient fence across the course of the stream where it entered upon Cobb's land. As a con- sequence the heifers passed upon that land. Here they would still have been exposed to no hazard, had not someone carelessly spilled poison upon the grass there. But it was there, and they were there, and they ate of it and died. We thus have a condition of things where the de- fendant's original WTong in neglecting to maintain the di\nsion fence between him and Woodruff led to harmful results, solely in conse- quence of the intervention of the acts or omissions of other parties, unrelated to defendant's WTong save in the sequence of events pro- ducing new situations, in the final one of which the careless conduct of a new wrongdoer came into deadly operation. (2) The rule laid down by Cooley is that in such cases the injury will be imputed to the last wTongful act as the proximate cause, and not to that which was more remote. " If the original act was wrongful and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wTongful, the injury shall be referred to the wrongful cause passing by those which were innocent. But if the original wrong only becomes injurious in 31S KELSEY V. REBUZZ^INI. [CIIAP. III. consequence of the intervention of some distinctly wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote." Cooley on Torts (3d Ed.) 101. This rule is doubtless too broadly stated, and needs qualification in this: That the negligent action of the first party in fault will be regarded as the proximate cause whene\'er the negligent act or acts of the subsequent wrongdoer or wrongdoers are such as the original wrongdoer, as a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably have antici- pated. " If such a person could have anticipated that the intervening act of negligence might, in a natural and ordinary sequence, follow the original act of negligence, the person first in fault is not released from liability by reason of the intervening negligence of another. If it could have not been thus anticipated, then the intervening negligent person alone is responsible." Shearman & Redfield on Negligence, § 34; Lane V. Atlantic Wks., Ill Mass. 136. (3) In the present case the defendant doubtless was aware of the condition of the fence along the Cobb line, and might have anticipated the passage of cattle from his land through it. But he had no knowledge of poisoned grazing in the Cobb lot, and, however experienced or saga- cious he might have been, could not have anticipated that some person might aimlessly have scattered poison about upon the grass there. That incident was one so entirely out of the range of human experience that he had no occasion to take it into his calculations, and the fault in- volved in it as an efficient cause of the death of the heifers was so dis- tinct, independent, and complete, that the plaintiff's fault in not maintaining the division fence between him and Woodruff in a sufficient condition cannot be regarded as a cause of it. The defendant's fail- ure in the maintenance of the fence did not stand to it in the relation of causa causans. " 'Cause' and 'consequence' are correlative terms. One implies the other. When an event is followed in natural sequence by a result it is adapted to produce, or aid in producing, that result is a consequence of the event, and the event is the cause of the result." Monroe v. Hartford St. Ry. Co., 76 Conn. 201, 207, 56 Atl. 498, 501. The natural sequence of consequences flowing from the escape of the cattle from their pasture was effectually liroken, and a new, distinct, and independent cause productive of their death introduced into the situation when the poisoned grazing was encountered. There is error, the judgment is reversed, and the cause remanded, for the rendition of judgment for the defendant. SECT. IV.] EBERILA.RDT V. GLASCO MUTUAL TELEPHONE ASSOC. 319 EBERHARDT v. GLASCO MUTUAL TELEPHONE ASSOCIATION. Supreme Court of Kansas, 1914. [Reported 139 Pan. Rep. 416.] West, J. (1) The plaintiff sued for damages received }?y being thrown from a wagon in a runaway. Her husband was driving a span of mules on a public highway when an automobile passed them on che south, frightening the mules, and they, leaving the traveled roadway, veered to the right and ran the wagon across a pole or guy wire belong- ing to the defendant, throwing the plaintiff out, and injuring her. The pole was about on the north line of the highway, and formed a part of the fence, and the guy wire extended from the pole about 4 feet south- east, where it was attached to a rod anchored in the ground. The road from fence to fence is 44 feet wide, the traveled portion being about 30 feet wide, and on each side between the driveway and the fence is an embankment not used for travel. This embankment where the injury occurred is only al)out 6 inches higlier than the roadway. It was not graded or smoothed, but was covered with grass and weeds. The husband testified that the team ran about 100 feet, and swung to the right and hit the guy wire \vith the front wheel of the wagon; that it was 4 feet and 4 inches to the pole from where the guy wire entered the ground, that he could have held the team had it not been for this obstruction, and would have had them under control in a little while. There was testimony that the team had tried to run awaySbe- fore; also that they ran about 20 rods before the accident occurred. It is claimed that the defendant was negligent in placing and main- taining the pole and wire at the place and in the manner indicated, and that they constituted a nuisance, and were the proximate cause of the injury. The court sustained a demurrer to the plaintiff's evidence and, having refused a new trial, the plaintiff appeals. The defendant denies that the pole and wire were negligently placed, and that they were the proximate cause of the injury. We find no authority for holding that the location of the pole practically on the boundary line of the highway could be deemed negligence on the part of the defendant. Whether the guy wire was so placed and anchored as to constitute negligence is a question on both sides of which much could be said, but one we do not deem necessary to decide. Unless the guy wire was the proximate cause of the injury, there can be no liability, whether its location were negligent or otherwise. (2) The question of proximate cause is one frequently so near the border line as to cause much perplexity; but, generally speaking, it may be said in this State that the proximate is the producing cause, not the one supplying the condition, but the one producing the injury. The one supplying the condition may be so intrinsically careless as to amount practically to a continuing invitation, so to speak, for a direct 320 EBEEHARDT V. GLASCO MUTUAL TELEPHONE ASSOC. [cHAP. III. cause to join in producing a disastrous result. But to be such it must present a condition of danger so manifest that the one responsible must be held to have been negligent in furnishing the means for a prob- able injury. But a condition which could not reasonably be expected to endanger, and which, but for some independent cause without which the injury would not have occurred, would not have endangered, does not ordinarily amount to a proximate cause. It is entirely plain that, had the mules not become frightened, and had they not also got beyond the driver's control, the wire would have had no possible con- nection with the most regrettable injury. The party placing the wire 4 feet and 4 inches from the pole in the grassy embankment north of the traveled portion of the road cannot be held to ha^•e foreseen that a team might become frightened 20 rods east thereof and run upon the embankment. Had the automobile not passed, had it not scared the team, had they not pulled out of the road in spite of the driver's efforts to keep them in it, no harm would have come from the wire, and to hold the compan,y placing it there liable would be to charge it with the duty to foresee all these most uncommon and unlooked for conditions. While the plaintiff cites decisions from other States which support or tend to support her position, attention is also called to Street Ry. Co. V. Stone, 54 Kan. 83, 37 Pac. 1012, and Hosier v. Butler Co., 82 Kan. 708, 109 Pac. 162. In the Stone Case the horse took fright at an object for which the city was not responsible, and got beyond the control of the driver, and came in contact with an obstruction in the street which the city had been negligent in not removing or repairing, and the city was held liable. There the obstruction was in the opened and traveled portion of the street, and a duty rested upon the city to keep it in a reasonably safe condition for travel. It is clear that the defect or obstruction was such as likely to cause damage. Hence the facts are by no means like those involved here. In the Mosier Case it was said (82 Kan. 709, 109 Pac. 162) that the frightening of the horse and the defect in the guard rail were related in their opera- tion, and the injury would not have resulted if the guard rail had not been defective. From the facts there shown, the absence of a sufficient guard rail provided a constant condition if not a source of danger liable and likely to happen at any time. The appellee cites many decisions; but we will notice only those which seem most directly in point. In Railway Co. i\ Bailey, 66 Kan. 115, 71 Pac. 246, a horse, becoming frightened at a mass of escap- ing steam, ran upon a pile of sewer pipe, overturning the buggy, and injuring the plaintiff. In the opinion it was said: "The proximate cause of the injury — that without which it would not have occurred — was the frightening of the horse. This stood first in the line of causa- tion." 66 Kan. 122, 71 Pac. 248. In Stephenson v. Corder, 71 Kan. 475, 80 Pac. 938, 69 L. R. A. 246, 114 Am. St. Rep. 500, the defendant's team standing — one of them hitched — at a hitching rail became frightened by a boy who, in exercising on the hitch rail, struck one of SECT. lY.] B. PINEAPPLE CO. V. ATLANTIC COAST LINE R. R. CO. 321 the horses on the nose with his foot, causing them to rear back and l)reak loose. They colhded with a buggy, injuring the plaintiff, who sued the owner of the team, alleging that he left them standing in- securely hitched. A judgment in her favor was reversed, on the ground that the act of the boy frightening the team was the proximate cause, and that the defect in the halter, if any, was only a distinct cause unrelated in operation with the producing cause. The definition of proximate cause there approved (71 Kan. 479, 80 Pac. 938, 69 L. R. A. 246, 114 Am. St. Rep. 500) was such negligence as under the circum- stances ordinary prudence would have admonished the person sought to be charged that his act or omission would probably result in injury to someone; the general test l)eing whether the negligence is such that a person of ordinary intelligence should have foreseen that an accident was likely to be produced thereby. In Gas Co. v. Dabney, 79 Kan. 820, 101 Pac. 488, it was held that the acts of the defendants did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, and hence they were not liable. It was expressly held that, when the facts are undisputed, and the court can see that the resulting injury was not probable, but remote, it is its duty to determine the question, and not send it to a jury. In Col- well V. Parker, 81 Kan. 295, 105 Pac. 524, the operator of a moving picture show and the manufacturer and lessor of the steps leading to the entrance were sued for damages caused by falling from the steps for the alleged reason that they were not provided with railings or guards. It was held that the manufacturer and lessor, even if negligent in the manner of construction, was not liable; such negligence being remote and unrelated in its operation to the direct proximate cause, and doing nothing more than to furnish the condition or give rise to the occasion by which the injury was made possible. The law concern- ing proximate cause was exhaustively considered in Rodgers r. Rail- way Co., 75 Kan. 222, 88 Pac. 885, 10 L. R. A. (N. S.) 658, 121 Am. St. Rep. 416, 12 Am. Cas. 441, and the rule already indicated finds abundant support in that decision. We are compelled to hold, therefore, that the demurrer to the plain- tiff's evidence was properly sustained, and such ruling is Affirmed. BENEDICT PINEAPPLE CO v. ATLANTIC COAST LINE RAILROAD CO. Supreme Court of Florida, 1908. [Reported 55 Fla. 514.] Whitfield, J.' The main questions presented are whether the negligent burning of a canvas cover used to protect growing pineapple plants and fruit from injury by cold and frost is a proximate cause 1 Part of the opinion is omitted. — Ed. .322 B. PINEAPPLE CO. V. ATLANTIC COAST LINE R. R. CO. [cHAP. III. of injury by cold and frost to the growang plants and fruit before the burned cover could by reasonable diligence be restored, so as to give the owner a right to recover damages for the injury to the plants and fruit by cold and frost; and whether the declaration sufficiently states that the alleged negligent act or omission of the defendant, whereby fires escaped from a passing locomotive, setting fire to the cover, and burned it, is a proximate cause of the injury to the growing plants and fruit from frost and cold. The defendant railroad company had a right to run its engine and train over its tracks, but such right is coupled with the duty to so operate the engine as not to negligently injure the property of others near the track. The duty arises by implication of law out of the rela- tion of the parties to each other and the circumstances of the case. To entitle a party to recover damages for his property injured or destroyed through or by the negligent act or omission of another, the negligence complained of must be shown to have been a proximate cause of the injury. Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Mfg. Co., 27 Fla. 1, 9 South. 661,^17 L. R. A. 33. Negligence is a proximate cause of an injury when in ordinary, natural sequence it causes, or contributes to causing, the injury, without an intervening independent cause. The negligent act or omission for v.^hich a party is liable in damages is one that proximately, i. e., in ordinary, natural sequence, causes, or contributes to causing, an injury to another, where no independent efficient cause of the injury intervenes, and the injured party is not at fault. A negligent act or omission may be the proximate cause of injury, Avhether such injury necessarily or immediately follows the negligence* or not, if the negligence is in ordinary natural, unbroken sequence the cause of the injury. Shearman & Redfield on Neg. §26; Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256. Liability for negligence extends to all its natural, probable, and or- dinary results. Any injury that under the circumstances is the nat- ural, probable, and ordinary result of a negligent act or omission is in law held to have been contemplated by the negligent party as a probable and proximate result of the negligence, when he is informed, or by ordinary observation would have been informed, of the facts and circumstances attending the negligence. Results that follow in ordinary, natural, continuous sequence from a negligent act or omission, and are not produced by an independent efficient cause, are proximate results of the negligence, and for such results the negligent party is lial)le in damages, even though the particu- lar results that did follow were not foreseen. Where the injury is caused by the intervention of an independent efficient cause to which the defendant did not contribute and for which he is not respon.sible, or is caused by the act or omission of the plaintiff, SECT. IV.] B. PINEAPPLE CO. V. ATLANTIC COAST LINE R. R. CO. 323 the negligence of the defendant is not the proximate cause of the injury. If the plaintiff contributes proximately to causing the injury, he cannot recover, unless otherwise provided by statute. The ordinary conditions or forces of nature, such as ordinary \\nnd, cold, heat, and the like, that are usual at the time and place and under the circumstances, and that reasonably should have been ex- pected or foreseen as probal^le to occur, are not, in general, independent, efficient causes, when they affect or operate upon a negligent act or omission in causing a result. Those who are negligent are held in law to know the usual effect of ordinary natural conditions and forces upon a negligent act or omission, and to ha^•e contemplated the appearance and the effect of such conditions and forces upon their negligence or upon its proximate results, and to be liable in damages for the natural and probable proximate results of the negligence. 13 Am. & Eng. Ency. Law (2d ed.) 457 et scq.; 1 Thompson on Neg. 136; Wharton on Neg. § 97. If the natural condition or force that affects the negligent act or omission is unusual or extraordinary, the negligent party will not, in general, be held to have known of or contemplated it, unless the cir- cumstances of the particular negligent act or omission are such that the negligent party should have known of or contemplated the prob- able appearance and effect of such unusual or extraordinary natural condition or force. If the injury was caused by some extraordinary or unusual natural force or condition that could not have been foreseen, or that would have caused the injury if there had been no negligence, the negligence is not the proximate cause of the injury. Where the injury complained of is the result of the negligence of the defendant and of some other contributing cause not an independent efficient cause, and the result could not have been produced in the ab- sence of either contributing cause, the defendant's negligence is a pro^nmate cause of the injury, if, under the circumstances attending the defendant's negligence, the injury was a probal)le, natural, and usual result of the two contributing causes that the defendant is held to have contemplated, and the plaintiff or those for whom he is respon- sible did not contribute proximately to the injury. Jackson\'ille, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Mfg. Co., 27 Fla. 1, 9 South. 661, 17 L. R. A. 33; Moore v. Lanier, 52 Pla. 353, 42 South. 462. Where a negligent act or omission is a proximate cause of an injury, the negligent party is liable in damages for the usual and natural consequences of the injury, whether the particular consequences that followed the negligence were actually contemplated or not. For such losses as necessarily follow the injury as the result of the negli- gence, recovery may be had under a claim for general damages. Losses that are the natural and pro.ximate, but not the necessary, result of the injury, may be recovered as special damages when sufficiently 324 B. PINEAPPLE CO. V. ATLANTIC COAST LINE R. R. CO. [cHAP. III. stated and claimed. Jackson\aIle Electric Co. v. Batchis, 54 Fla. , 44 South. 933. If, by a wand that is ordinarily likely to occur, a fire, started by the negligence of a railroad company, is communicated to and destroys property of another, the company is liable in damages for the property so destroyed, since it is held to Have contemplated all the natural and ordinary consequences of the negligence. Jacksonville, T. & K. W. Ry. Co. V. Peninsular Land, Transp. & Mfg. Co., 27 Fla. 1, 9 South. 661, 17 L. R. A. 33; Florida East Coast Ry. Co. f. Welch (Fla.) 44 South. 250. Where a railroad company allows water from its tank to run upon the premises of another in the winter season, and the water subse- quently freezes and injures property on such premises, the company is liable in damages for the injury, since the negligent escape of the water from the tank in ordinary, natural sequence caused a result that under the circumstances should have been expected. The negligence of the company in permitting the water to run on the premises was the proximate cause of the injury to the property from the freezing of the water. Chicago & Northwestern Ry. Co. v. Hoag, 90 111. 339. Where a means such as a fence or a cover, or the like, has been pro- vided by the owner of property to protect it from an injury that will probably occur, and such means are, without the fault of the owner, injured or destroyed by the negligent act or omission of another, who under the circumstances of the case knew, or should have known, of the use to which the means was applied and of the injury that would probably result from the destruction of such means, damages may be recovered for injuries to the property that was so protected, which proximately follow or result from the destruction of the means pro- xided for the protection of the property injured. Garrett v. Sewell, 108 Ala. 521, 18 South. 737; Krebs Mfg. Co. i\ Brown, 108 Ala. 508, 18 South. 659, 54 Am. St. Rep. 188; Miller i\ St. Louis, I. M. & S. Ry. Co., 90 Mo. 389, 2 S. W. 439. The declaration alleges that the defendant so carelessly and negli- gently managed and operated one of its locomotives that fire es- caped therefrom and set fire to and burned the canvas or cloth covering to a pinery of growdng plants "situated near to the track of the de- fendant." Owners of property have a right to use it in any manner desired that is not inconsistent with the rights of others. This includes the right of those haNang land near a railroad track to place a canvas cover over plants growing on the land, and the mere fact that the cover is within the reach of sparks of fire emitted from a locomotive engine passing on the track near by does not relieve the railroad company from liability for its negligence in permitting the sparks to escape and burn the cover. While those havnng property are charged with the duty of caring for it, there is no obligation to constantly guard and pro- SECT. IV.] B. PINEAPPLE CO. V. ATLANTIC COAST LINE R. R. CO. 325 tect it from injury by the negligence of others. See Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Mfg. Co., 27 Fla. 1, 9 South. 661, 17 L. R. A. 33. It is alleged that the canvas cover placed over growang pineapple plants and fruits to protect them from injury by cold and frost was destroyed by the negligence of the defendant, who should have known the use of the cover and the protection it afforded, and that, because of the destruction of the dover, a cold and frost that ordinarily should have been expected as likely to occur at the time and place did occur and injured the plants and fruit without the fault of the plaintiff! If the negligent burning of the canvas cover to the growing pine- apple plants and fruit defeated the sole object for which the cover was used, and such negligent burning of the cover in ordinary, natural sequence caused the injury to the growing plants and fruit by cold and frost that under the circumstances shcmld have been expected, as likely to occur and injure the plants at the time and place of the negligent burning of the cover, such negligent burning was the proxi- mate cause of the injury to the growing plants and fruit from cold and frost. Injury to growing pineapple plants and fruit by ordinary cold and frost that should have been expected as likely to occur is not such an act of God as wall relieve from liability for such injury a railroad company that negligently burned the cover over the plants and fruit, which cover was used solely to protect the plants and fruit and would have prevented the injury. See Norris v. Savannah, F. & W. Ry. Co., 23 Fla. 182, 1 South. 475, 11 Am. St. Rep. 355; Texas & P. Ry. v. Coggin & Dunaway (Tex. Civ. App.) 99 S. W. 1052. If the injury would not have resulted from the cold and frost, but for the negligent burning of the cover, the defendant is liable, as such negligence made eft'ective and injurious an ordinary natural condition that should have been contemplated and that would other- wise have been harmless. Under the allegations of the declaration, the negligent burning of the cover was a primary and efficient act that in ordinary, natural sequence caused the injury to the growing plants and fruit by cold and frost; such injury not being the result of an intervening independ- ent efficient cause, or of an extraordinary or unusual frost and cold that could not have been foreseen, or that would have injured the plants if the cover had not been burned by the negligence of the defend- ant. If this is proved, the plaintiff may recover damages for the in- jury. The count of the original declaration upon which recovery was had was held to be "fatally defective in not alleging negligence, either of commission or omission, on the- part of the defend-ant in commun- icating the fire" to the canvas cover, and also in not alleging facts "sufficient to bring home to the defendant that the burning miglit 326 B. PINEAPPLE'CO. V. ATLANTIC COAST LINE R. R. CO. [cHAP. III. reasonably have been expected to result directly and naturally in damage to the plants and fruit by cold and frost." Atlantic Coast Line Ry. Co. v. Benedict Pineapple Co., 52 Fla. 165, 42 South. 529. Where negligence is the basis of recovery, the declaration should contain allegations of the negligent act or omission of the defendant, and also allegations of facts to show injury to the plaintiff, and that such injury was a proximate result of the negligence alleged. The declaration now in the first count alleges that the defendant "so carelessly and negligently managed and operated one of its loco- motives while drawing a train of cars . ... that fire escaped from said locomotive and set fire to the canvas or cloth with which a pinery belonging to the plaintiff and situated near to the track of the defend- ant . . . was covered, and burned a large part, to wit, about one acre, of the said cover." This is a sufficient allegation of a negligent act of the defendant in communicating fire to the canvas cover, and of injury resulting proximately therefrom to the plaintiff when taken with the claim for damages, to authorize a recovery of general damages or such as naturally and necessarily result from the burning of the can- vas cover to the extent of its value. As special damages resulting from the negligent act alleged, the first count further states: "That, in the said pinery, a large number of pineapple plants and fruit were growing and were likely to be damaged by frost and cold in the" stated vicinity and "the latitude thereof in the winter season, and that it was usual and customary in and about the said" vicinity "and latitude to cover pineries with can- vas or cloth in order to protect the plants and fruit growing there- in from damages by frost and cold," and to keep in the heat supplied by fires maintained in the pineries during spells of frost and cold which ordinarily come in the winter season on short notice and would otherwise damage the plants and fruit; that, in accordance with said custom, plaintiff provided said pinery with a good canvas or cloth cover, and also provided stoves and fuel therein, ready and sufficient within the covered pinery to heat the same immediately upon the coming of frost and cold dangerous to the plants and fruit, and thus preserve them from damage therefrom; "that shortly after the burn- ing of the portion of the cover as aforesaid, and before the plaintiff by exercise of any reasonable diligence by it could replace the part of the cover which had been burned through the negligence of the de- fendant as aforesaid, the plants and fruit were damaged by frost and ^Id for w*,nt of the complete cover and the subsequent inability of the plaintitt' to control the temperature within said pinery; that the defendant well knew, or ought to have known," of the custom, condi- tions, and circumstances alleged; and that the "damage was caused by the negligence of the defendant in burning part of the cover as aforesaid." Damages are claimed in $10,000. As the defendant is liable for such injurious results as were likely SECT. lY.] B. PINEAPPLE CO. V. ATLANTIC COAST LINE R. R. CO. 327 to and did naturally and proximately follow its negligence, it was not necessary to allege, as contended, " that at the time of the occur- rence of the fire the weather was such that cold or frost could be anti- cipated by the defendant," or "that in the month of January cold or frost of such character as to damage pineapple plants ordinarily oc- curred." That the month of January, when the fire occurred, was "in the winter season," the court knows judicially, and there are allegations that pineapple plants and fruit are likely to be damaged by frost and cold in the v-icinity stated in the winter season, that it was usual and customary there to cover the growing plants with canvas to pro- tect them from damage by frost and cold, and that the defendant knew, or should have known, of all the circumstances alleged. If the frost or cold of any degree injured the plants or fruit under the circum- stances alleged, as the proximate result of the defendant's negligence, it is not necessary to state the extent of the frost or cold necessary to the damage, or that such frost or cold was likely to come at the time the fire occurred, because of the then condition of the weather, as is insisted by the defendant in error. ' If the defendant was negligent in burning the cover, it cannot be relieved from liability for the proximate results of such negligence on the ground that an ordinary natural condition, i. e., frost and cold, intervened, when such ordinary cold and frost should have been ex- pected as probably to occur at the time and place of the negligence. The declaration in effect alleges that the cold which injured the plants should, under the circumstances, have been contemplated by the de- fendant as likely to occur, that the injury was the natural result of the cold, and that such injury would not have resulted but for the negli- gence of the defendant that caused the fire to destroy the covering to the plants. The demurrer admits this. It is in eifect alleged that by ordinary, natural sequence the negligence of the defendant in starting the fire burned the covering, thereby exposing the growing plants and fruit to an injurious cold and frost that under the circum- stances stated should have been expected as likely to occur, and the plants and fruit were injured by such cold and frost without the fault of the plaintiff, because the covering was destroyed by the fire started by defendant's negligence. It is sufficiently alleged that the negligence of the defendant was the proximate cause of the injury to the plants and fruit by cold and frost. The cold that injured the plants was not an independent efficient cause occurring between the negligence of the defendant and the in- jury by cold and frost, as such injury was the natural and ordinary result of cold and frost that it is alleged should have been expected as likely to occur as an ordinary or usual natural condition that would not have been harmful to the plants if the covering had not been de- stroyed by the fire negligently started by the defendant.^ 1 See also Williams v. Atlantic Coast Line R. R., 56 Fla. 735, 48 So. 209.— Ed. 328 HOGAN V. BRAGG. ' [CHAP. III. HOGAN V. BRAGG. Supreme Court of North Dakota, 1918. [Reported 170 N. W. Rep. 324.] Robinson, J. The defendant appeals from a verdict and judgment for $1500, on the charge of permitting to escape from his land a prairie fire, whicfl caused the death of plaintiff's husband. On March 21, 1915, the ground being covered with snow and defendant absent from his home on the southeast quarter, 24 — 141 — 74, the hired man of defendant did of his own motion set fire to a straw bottom about half a mile from the house. On April 5, as the snow had melted and the straw bottom was still smoldering, the defendant plowed around it six furrows with a gang plow. Then another snow fell and lay for about six days, till the fire had apparently burned out. However, at noon of April 9, a high wind from the northwest started up the smolder- ing fire. This the defendant observed, and with his hired man has- tened toward the fire, which was instantly blown from the straw bottom to the stubble and the prairie, and the result was an immediate and uncontrollable prairie fire. Soon a number of persons arrived on the scene, and all of them took part in fighting the fire. But as the wind continued to blow -wath great and increasing violence, the fire flew over the prairie. With several others, Hogan, the deceased, took the risk of attempting to back-fire, and he was caught in the onrushing flame and fatally burned, so he died on the same day. When the fire was started, it was not subject to the control of any person, and it behooved all persons to keep out of its way. " No man is responsible for that which no man can control." Maxims (C'omp. Laws 1913, § 72G0). Even if defendant was negligent in per- mitting the fire to escape from his land, he was liable only for the prox- imate loss, and not for a death resulting from a person rushing into or in front of an onrushing flame. Such a loss is too remote. " For the breach of an obligation not arising from contract, the measure of damages ... is the amount which will compensate for all the detri- ment proximately caused thereby." C L. § 7165. Proximate cause is that which in' a natural and continuous se- quence produces the event. 32 Cyc. 745. "In order to find that an act not a willful wrong is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wTongful act and that it ought to have been fore- seen and guarded against." Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, 475, 24 L. Ed. 256. True, the statute makes it a misdemeanor to set fire to any SECT. IV.] MATHEWS V. KANSAS CITY RAILWAYS CO. 329 woods, marsh, prairie, or stubble lands except in the months of July and August, without first plowing around the same a strip of land 50 feet wide. Sections 2791, 2792. But here there was no setting fire to woods, marsh, prairie, or stubble. Hence the prairie fire statute has no application. The fire was set to the bottom of an old strawstack, when the ground was covered with snow, and when there was not the least apparent danger. Such a fire is a matter of common and yearly occurrence on nearly every farm; and defendant was in no manner guilty of even ordinary negligence in permitting the escape of the fire after the lapse of 12 days and after the second snow; he had no rea- son to suspect the possibility of such a fire and its escape across the six furrows which he had plowed. By § 5948, every one is responsilile, not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has ^Wlfully or by want of ordinary care brought the injury upon himself. It is on this statute that plaintiff must base her claim to recover for the accident, and there is no evi- dence to charge the plaintiff wath any lack of ordinary care, and, as the evidence does show beyond question, the deceased brought the injury upon himself by want of ordinary care. Without reason or necessity he purposely ran into the path of an onrushing prairie fire, and thereby risked and lost his life. There was no evidence to sus- tain the verdict for the plaintiff, and on the evidence it is clear that the plaintiff has no cause of action. Judgment reversed, and action dismissed. MATHEWS V. KANSAS CITY RAILWAYS CO. Supreme Court of Kansas, 1919. [Reported 104 Kansas 92.] ■ Johnston, C. J. John B. ]VIathews sued for and recovered damages from The Kansas City Railways Company for personal injuries sus- tained by him through defendant's negligence, while a passenger on one of its cars. In his petition he alleged, in substance, that the car on which he be- came a passenger was greatly crowded, and that when he boarded it he took a position in the aisle near the front end" of the car, steadying himself by holding to a strap provided for that purpose. When they reached a certain point on the line another car of the defendant col- lided with the one on which he was riding with such force and \nolence as to throw him backward over the top of a seat in the car, causing concu.ssion of the brain, injury to the spinal column, severe sufferings 330 FULTON V. KL\LBACH. [CHAP. III. and as a result of his injuries he has partially lost control of his lower limbs, and that since his injury he has been unable to sleep, and has lost the use of his sexual powers. The answer was a general denial, and upon the evidence of plaintiff, the defendant not having offered any, the jury awarded damages to the plaintiff in the sum of $15,000. In its appeal, defendant first con- tends that its demurrer to plaintiff's evidence should have been sus- tained. It is insisted that the evidence does not show that the force of the collision was sufficient to throw the plaintiff down; that it does show that his fall was caused by another passenger tlorowing himself against the plaintiff; and that, therefore, the collision was not the proximate cause of plaintiff's injury. There is abundant evidence that the car was struck with such force as to break the straps which the standing passengers were holding, and to throw them doum. One, a man named Woulf, was standing next to plaintiff, and it is shown that the shock of the collision threw several of the passengers violently one against the other, and some of them against Woulf, who was thrown against the plaintiff, who in turn fell across the iron bracket of a seat. It does not require argument or authorities to demonstrate from the testimony that the efficient producing cause of the fall and injury of the plaintiff was the collision. It stood first in the line of causation, and but for it the injury of the plaintiff would not have occurred. . . . The judgment is affirmed. FULTON V. KALBACH. Supreme Court, New York, 1920. [Reported 179 N. Y. Supp. 604.] MuLLAN, J. Plaintiff was a passenger on one of the defendant's closed cars, north-bound. She testified that she had arisen from her seat, and was walking down the aisle to the rear of the car, when she was thrown violently to the floor of the car by its sudden stoppage, shown, by other witnesses, to have been caused by the front of the car coming into collision with the rear of a truck. It was very plainly a case for the jury's determination, and the only assignment of error we deem it necessary to notice relates to the charge of the learned trial judge. The plaintiff's story was that, desiring- to alight at 102d street, she had stood up and signaled to the conductor to stop, just after the car had left 101st street. ConcededI\' the collision occurred a little north of 102d street. The conductor testified that the plaintiflf had not signaled to her to signal to the motorman, and that she, the conductor, had not signaled to him. The motorman swore that he heard no signal from the conductor. SECT. IV.] FULTON V. KALBACH. 331 The learned judge, in his charge to the jury, gave them the following instruction : " But if you find that the plaintiff's version be correct, if you believe the testimony of the plaintiff's witnesses that the conductorette was notified to stop the car at 102d street, that the signal was given as testified here, and that the motorman failed to stop, then, of course, you must find — assuming now that you find that the plaintiff" did what she was required to do under the circumstances — then you must find that the accident is chargeable to the defendant company." Exception was duly taken to this plainly erroneous instruction. The failure to stop at 102d street was not the proximate cause of the accident; it merely was causa sine qua non. The causa causans was the collision, and the proper question for the jury's determination was whether th^ defendant was or was not responsible for the collision, no matter where it occurred. Judgment reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur. 332 LOCKE V. STEAKNS. [CHAP. IV. SECTION I. Hesjjondeat Superior. HERN V. xNICHOLS. Nisi Prius. 17 — , [Reported 1 Salk: 289.] In an action on the case for a deceit, the plaintiff set forth, that he bought several parcels of silk for silk, whereas it was another kind of silk; and that the defendant, well knowing this deceit, sold it him for silk. On trial, upon not guilty, it appeared that there was no actual deceit in the defendant who was the merchant, but that it was his factor beyond sea: And the doubt was. If this deceit could charge the merchant? And Holt, C. J., was of opinion that the mer- chant was answerable for the deceit of his factor, though not criminal- iter, yet civiliter; for seeing somebody must be a loser b^' this deceit, it is more reason that he that employs and puts a trust and confidence in the deceiver should be a loser, than a stranger: And upon this opinion the plaintiff had a verdict. LOCKE V. STEARNS. Supreme Judicial Court of Massachusetts, 1840. [Reported 1 Met. 560.] Trespass upon the case in the nature of deceit. The declaration alleged that the defendants fraudulently sold to the plaintiff divers quantities of meal, as and for linseed meal, which was in fact a mixture of linseed meal and teelseed meal; the latter being of a quality inferior to the former, and of less value. The action was commenced against G. L. Stearns, H. L. Stearns, and G. C. Hall, but the writ was not served on Hall. CHAPTER IV. l| LIABILITY IRRESPECTIVE OF PROXIMATE CAUSATION. SECT. I.] LOCKE V. STEAKXS. 333 At the trial in the court of common pleas, before Strong, J., it was proved or admitted, that the three persons above mentioned were in partnership in the business of manufacturing oil from linseed, at their factory in Medford; that the selling of linseed meal was within the regular business of said partnership; that the meal mentioned in the plaintiff's declaration was sold to him as hereinafter stated; and that, at the time of the sale thereof, L. Richardson was the foreman of the defendants in their said factory. It was in evidence that teelseed was recentl}' introduced into this country, and that the defendants began to use it in the making of oil, as a substitute for linseed, in the latter part of the year 1837; and that they, or some of them, began to mix the teelseed meal with the linseed meal, about the middle of January, 1838: That said Richardson, about that time, was directed by G. L. Stearns, to mix the two kinds of meal, and that H. L. Stearns had said that "the}' put in one half teelseed meal, in the meal which they sold; and that their cattle would not eat the teelseed meal, unless linseed meal was mixed with it": That the meal mentioned in the plaintiff's declaration was sold to him at differ- ent times, during a period of several months, as linseed meal, by Richardson, or by one of the defendants; that said meal, or portions of it, was a mixture of teelseed and linseed; but that the plaintiff had no notice that it was not all linseed meal; and that said meal, so mixed, was of less value than clear linseed meal. Among other instructions, given by the judge to the jury, were these: " 1. That if one of the defendants sold the meal to the plaintiff", such defendant knowing that teelseed meal was of an inferior quality and less value than linseed meal, this knowledge would bind all the defendants, and be the same as if they all knew it. 2. That if L. Richardson, as foreman of the defendants, acting within the scope of his authority, sold the meal to the plaintiff, he (Richardson) knowing that teelseed meal was of an inferior quality and of less value than linseed meal, this knowledge would bind the defendants, and be the same as if the defendants knew it." A verdict was found for the plaintiff, and the defendants alleged exceptions to the above instructions. Shaw, C. J. Most of the questions, in the present case, turned upon matters of fact and were decided by the jury. The evidence, taken in connection with the verdict, shows that the purpose of the plaintiff was to purchase of the defendants linseed meal, and that the defendants, who carried on the business of manufacturing oil from seed, so understood it, but that they, that is, one of them personally, when present, and their foreman ajid general agent, acting within the scope of his authority, when they were absent, delivered to the plaintiff' an inferior article, called teelseed meal, mixed with the linseed, in such a manner as to deceive the plaintiff, who purchased and paid for the whole as linseed, without knowledge of such mixture. 334 LOCKE V. STEARNS. [CHAP. IV. The defendants object to two of the instructions of the court of common pleas, as being incorrect in point of law. [Here the chief justice stated the instructions excepted to.] But we are of opinion that both those instructions were right. For although the action in form charges the defendants jointly for a deceit done by one only, or by an agent, yet it is still a civil action, and the claim is for damages. The deceit was done for the defendants' benefit, by their agent acting under their orders, in the conduct of their general business, and responsible to them ; and when one party must suffer by the wrong and misconduct of another, it is more reasonable that he should sustain the loss, who reposes the confidence in the agent, than he who has given no such confidence. Hern r. Nichols, 1 Salk. 289. The point is well illustrated by the law of insurance, where the party is always held responsible civiliter, for the fraudulent misrepresentation or other deceit, or for the negligence, of his agent. Fitzherbert v. Mather, 1 T. R. 12. But the rule is not confined to cases of insurance, in relation to which a somewhat stricter morality, perhaps, is held to prevail; but it is laid down as a general rule of the common law, that the principal is civilly responsible for the acts of his agent. Doe v. Martin, 4 T. R. 66. In a late case, in which it was held that a master was liable for the acts of his servant in a case quasi criminal — as for penalties incurred by a violation of the revenue laws — it was taken for granted, on all sides, that for deceit in articles sold by a servant in the shop of his master, or for acts done in the manufacture of articles in a manufactory usually carried on by the master, the latter is answerable. Attorney General V. Siddon, 1 Tyrw. 41. S. C. 1 Crompt. & Jerv. 220. The rule pro- ceeds upon the ground that the servant is acting within the scope of his authority, actual or constructive. The case of a sherifl^ who is lial)le ciinliter, even in an action of trespass, for the misconduct of his deputy, is another familiar application of the same rule. Grinnell v. Phillips, 1 Mass. 530. The rule is laid down generally, in a recent com- pilation of good authority, that though a principal, in general, is not liable criminally for the act of his agent, ^'et he is ciA'illy liable for the neglect, fraud, deceit, or other wrongful act of his agent in the course of his employment, though in fact the principal did not authorize the practice of such acts; but the wrongful or unlawful acts must be com- mitted in the course of the agent's employment. 3. Chit. Law of Com. & Man. 209, 210. .\s to the other point, which is indeed little more than a further application of the same principle, it is laid down, as the general rule, that one partner is liable civiliter for damages sustained by the deceit or other fraudulent act of his copartner done within the scope of his general partnership authority. Collyer on Partnership, 241. Rapp v. Latham, 2 Barn. & Aid. 795. Willet i\ Chambers, Cowp. 814. Two cases were cited, by the counsel for the defendant, to support the contrary doctrine; but we think they are both distinguishable from SECT. I.] HIGGINS V. WATERVLIET TURNPIKE CO. 335 the present. In Pierce v. Jackson, 6 Mass. 245, it is said by Parsons, C. J., in the course of his opinion, that "a fraud committed by one of the partners shall not charge the partnership." This must be taken in connection with the subject matter to which it was applied. That action was not brought by an innocent party who had sustained damage by the fraudulent act of a partner in the course of the partnership business. On the contrary, it was a case of competition between different classes pf creditors, one of whom was a creditor of one of the partners, and the other claimed a\ preference as creditor of the firm. But it appeared that one of the partners had, b}' fraud and by means of a forged indorsement of a note, given or attempted to give the latter creditor a preference to which he was not entitled. It was in reference to this transaction that the remark above cited was made. The plain- tiff, in that case, must have been in collusion with one of the partners to obtain an undue preference; and to have sustained the claim of preference, under those circumstances, would have been to give effect to a fraudulent and collusive act, in favor of a party to the collusion, against an honest creditor. The other case cited was Sherwood r. Marwick, 5 Greenl. 295. In that case, two persons were the beneficial owners of a foreign vessel held in the name of a third person. One of them, under a power from that third person, sold the vessel, and at the time of the sale made a false representation of her national character. The other was sued by the purchaser, in an action to recover damages alleged to have been sustained by reason of such false representation. It was held that he was not liable. The defendant and the seller, in that case, were not general partners, if indeed they were partners at all. The seller was not the general agent of the defendant, nor had he an^- authority, actual or constructive, to act for him. It seems to us therefore quite clear that the decision in that case is not in conflict with ours in the present. Exceptions overruled. HIGGINS V. WATERVLIET TURNPIKE CO. Court of Appeals, New York, 1871. [Reported 46 A'. }'. 23.] On the 13th day of July, 1866, plaintiff was a passenger on defend- ant's horse car in the city of Albany. He had paid his fare, and was forcibly thrown from the car by defendant's conductor and driver who claimed that he was drunk and disorderly. He ga^o eAidenr(> tending to show this was not so, and the jury so found. Andrews, J. I'pon the theory that the act of the conductor, in removing the plaintiff from the car, was unlawful, and was not justi- 336 HIGGIXS V. WATEEVLIET TURNPIKE CO. [CHAP. IV. fied by the circumstances, the court was requested by the counsel for the defendant to charge the jury, that the phiintiff could not recover for any personal injuries occasioned by the assault of the conductor, there being no evidence of authority from the company to commit it. Upon the other theory of the case, that the expulsion was justified by the conduct of the plaintiff, but that unnecessary force, occasioning injury, was used in ejecting him, the court charged, that the defend- ant was liable for such injury. Exception was taken by the defendant to the refusal of the court to charge as requested, and to the charge made. These exceptions present the questions made upon the argument. The main contention on the trial related to the conduct of the plain- tiff immediately before his remo\al from the car. The evidence on the part of the defendant tended to show that he was noisy and disorderly ; that he refused to obey the reasonable direc- tiotis of the conductor, and that his expulsion was justified by his mis- conduct. This version of the facts was controverted by the plaintiff, and we cannot decide, as a question of law, that the jury were not justified in finding with the plaintiff upon this issue. But there is no evidence that the act of the Conductor was prompted by malice, or any wrongful intention, or by any motive, except to discharge what he supposed to be his duty under the circumstances. The request to charge must be regarded as having been made with reference to this view of the facts, otherwise it was irrelevant and in- applicable to the case. The expulsion of the plaintiff, if not justified by his misconduct, was an unlawful assault, and the fjuestion arises, whether the defendant is responsible for the injury occasioned by the unlawful act of its ser- vant, done under a mistake of facts, or a mistake of judgment upon the facts, though in the course of the business of his master. This question must be answered in the affirmative, in view of the nature of the service in which the conductor was engaged, and the principle upon which the liability of the master for the acts of the servant rests. The conductor was put b}- the defendant in charge of the car. Passengers were bound to conform to the reasonable rules and regula- tions of the company, and to behave themselves in an orderly manner, promoting thereby the mutual interest of the company and the public. The company had the right to enforce order and decency, by expell- ing from the car a passenger guilty of disorderly and indecent conduct. The defendant could only act through agents. The appointment of a conductor carried with it as an incident authority to maintain order, and to eject a passenger who had forfeited his right to be carried by his misconduct. This authority, it is true, was confined to the expulsion of persons SECT, I.] HIGGINS V. WATERVLIET TUKNI'IKK CO. 337 who, in fact, misbehaved themselves so as to justify their expulsion; but whether, in a given case, the misconduct was such as to justify an expulsion, must necessarily be determined at the time of the transac- tion. The duty of deciding is cast upon the conductor; he represents the defendant; he may misunderstand or misjudge the facts; he may act unwisely or imprudently, or even recklessly; but the business of pre- serving order and enforcing the regulations of the company is com- mitted to him, and for his acts in that business the company is responsible. The master's liability for the negligence or tort of his servant does not depend upon the existence of an authority to do the particular act from which the injury resulted. In most cases where the master has been held liable for the negligence of his servant, not only was there an absence of authority to commit the wrong, but it was committed in \'iolation of the duty which the servant owed to the master. Th^ prin- cipal is bound, by a contract made in his name by an agent, only when the agent has an actual or apparent authority to make it; but the liability of a master for the tort of his servant does not depend primarily upon the possession of an authority to commit it. The question is not solved by comparing the act with the authority. It is sufficient to make the master responsible civilitcr, if the wrongful act of the servant was committed in the business of the master, and within the scope of his employment, and this, although the servant, in doing it, departed from the instructions of, his master. This rule is founded upon pul)lic policy and convenience. Every person is bound to use due care in the conduct of his business. If the business is com- mitted to an agent or ser^•ant, the obligation is not changed. The omission of such care by the latter is the omission of the princi- pal, and for injury resulting therefrom to others, the principal is justly held liable. If he emplo\'s incompetent or untrustworthy agents it is his fault ; and whether the injury to third person^ is caused by the negligence or positive misfeasance of the agent, the maxim respondeat superior applies, provided only, that the agent Was acting at the time for the principal, and within the scope of the business intrusted to him. It is often stated, and with sufficient accuracy for general purposes, that a master is not liable for an assault committed by his servant. It is said by Lord Kenyon, in the leading case of McManus v. Crickett (1 East, 106), "that when a servant quits sight of the object for which he was employed, and, without having in view his master's orders, pursues that which his own malice suggests, his master will not be liable for such acts." If for his own purposes, and not in his master's business, the servant commits an assault, the master is not responsible; and the statement that the master is not liable for the assault of his servant requires this qualification. 338 HIGGINS V. WATERVLIET TUENPIKE CO. [CHAP. IV. In the case of Sandford v. Eighth Avenue Railroad Company (23 N. Y. 343) the action was brought to recover damages, resulting from the death of the plaintiff's intestate, caused by his being thrown from the car of the defendant, by the conductor, when it was in motion. The deceased refused to pay his fare, and for that reason the conductor ejected him. The court held that the conduct of the intestate justi- fied the conductor in expelling him from the car in a proper manner, but not when the car was in motion, and the defendant was held liable for the injury. Comstock, Ch. J., sa^'s: "The case is, therefore, to be stated thus: The defendants by their servant were guilty of a personal and intentional assault upon the intestate. The assault, as we think, was not in law justified by the fact, and they are consequently without a legal defense." This case is in point against the defendant upon the question we have considered, and accords with the general principle, governing the liability of masters for the tortious acts of their servants. (Addison on Torts, 23; Smith on Master and Servant, 151; Story on Agency § 452.) The charge of the court that the defendant was responsible for the excessive force used in ejecting the plaintiff from the car" assumed that there was lawful cause for his expulsion. The charge, in our opinion, was, under the proof in the case, correct, and is supported by the considerations, to which we have adverted, in considering the other exception. We are not called upon in this case to determine what the law is as to the master's responsibility, in a case where a conductor, though justified in using Wolence in expelling a passenger, wantonly and in- tentionally used unnecessary force to accomplish it, and where the justifiable and excessive force were parts of a single act. In this case that hypothesis is inadmissible. The evidence does not warrant the supposition that the conductor acted in bad faith or wantonly used unnecessary \nolence. In Seymour r. Greenwood (7 H. & N. 356) it was held by the Court of Exchequer Chamber, that a master was liable for an injury caused by the unlawful and ^^olent conduct of his servant in the per- formance of an act within the course of his employment. The case in its circumstances was quite like the case in question. The guard of the defendant's omnibus, in remo\'ing a passenger whom he deemed to be drunk, forcibly dragged liim out and threw him on the ground, whereby he was severely injured. The passenger brought an action for the injury, and the defendant claimed that he had not authorized, and was not liable for the acts of the servant. Williams, J., in pro- nouncing the unanimous opinion of the court, said: "We think there was evidence for the jury that the guard, acting in the course of his serv-ice as guard of the defendant's omnibus, and in pursuance of that employment, was guilty of excess and Aiolence not justified by the SECT. I.] BOOMER V. WILBUR. 339 occasion, or in other words, misconducted himself in the course of his master's employment, and, therefore, the master is responsible. It is said, that though it cannot be denied that the defendant authorized his guard to superintend the conduct of the omnibuses generally, and that such authority must be taken to include an authority to remove any passenger who misconducts himself, yet the defendant gave no authority, to turn out an inoffensive passenger, and the plaintiff was one. But the master, by giving the guard authority to remove an offensive passenger, necessarily gave him authority to determine whether any passenger had misconducted himself. It is not convenient for the master personally to conduct the omnibuses, and he puts his guard in his place; therefore, if the guard forms a wrong judgment the master is responsible." (See, also, Limpass v. London General Omnibus Company, 1 ». & Colt. 526; Goff r. Great Nor. R'way Co., 30 L. J. Q. B. 148; Poulton v. London and South Western R'way Co., 2 L. R. 2 Q. B. 534.) The remark of one of the judges in the case of Hibbard v. New York and Erie R. W. Co. (15 N. Y. 467) may not, when read in connection with the charge to which it referred, be consistent with the views here expressed. But the case was decided upon another point, and it is not an authority for the doctrine stated by the learned judge. The judgment should be affirmed. All concur, but Peckham, J., not voting. Judgment affirmed. BOOMER V. WILBUR. Supreme Judicial Court of Massachusetts, 1900. [Reported 176 Mass. 482.] Tort, for personal injuries occasioned to the plaintiff by the fall of brick and mortar from a chimney on the house of the defendants in Taunton upon the plaintiff while she was passing below on the side- walk. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff; and the defendants alleged excep- tions, which appear in the opinion. Hammond, J. The court instructed the jury in substance that where, under a contract between the owner of a house and the person doing the w^ork, work is done upon the house, and the owner retains the right of access to and the control of the premises, and such work is ordinarily attended with danger to the public unless proper precau- tions are taken to avoid it, the owner is bound to the exercise of due care to see that such precautions are taken for the safety of the public; and if by reason of the failure to take such precautions a person law- fully on the street and in the exercise of due care is injured, the owner 340 BOOMER V. WILBUR. [CHAP. IV. is answerable notwithstanding tlie work is being done under a contract between him and the contractor. Having stated this as a general rule, the court applied it to this case as follows : " If the defendants employed a persoa to repair the chimneys on their buildings adjoining the high- way under the contract, to repair them for a fixed sum, and the de- fendants retained the right, retained control, and the right of access to the building, and such work on the chimneys would ordinarily be attended with danger to the public unless proper precautions to avoid it were taken, the defendants were bound to take proper precautions, or to see that proper precautions were taken, for the safety of the public; and if the plaintiff was injured while she was lawfully on the street, adjoining the defendants' premises, and in the exercise of due care, by reason of the failure of the defendants to take proper precautions, or by reason of their failure to see that proper precautions were taken, to avoid such injury, then the defendants are liable for the injury." We understand these instructions to mean that, even if the defend- ants employed a competent, independent contractor to repair these chimneys, who was to do the work without any dictation or supervision on the part of the defendants over the details of the work or the manner in which it should be done, the defendants would be answerable for the failure of the contractor to take proper precautions to protect travelers upon the highway from falling bricks. While the master is liable for the negligence of the servant, yet when the person employed is engaged under an entire contract for a gross sum in an independent operation, and is not subject -to the direc- tion and control of his employer, the relation is not regarded as that of master and servant, but as that of contractor and contractee; and in such case the general rule is that the negligence of the contracting party cannot be charged upon him for whom the work is to be done; and this rule is applicable even where the owner of the land is the person who hires the contractor, and for whose benefit the work is done. Hilliard v. Richardson, 3 Gray, 349. Forsyth v. Hooper, 11 Allen, 419. Conners v. Hennessey, 112 Mass. 96. Harding v. Boston, 163 Mass. 14, 18. There are, however, some well-known exceptions to the rule. If the performance of the work will necessarily bring wrongful conse- quences to pass unless guarded against, and if the contract cannot be performed except under the right of the employer who retains the right of access, the law may hold the emplo\'er answerable for negligence in the performance of the work. W^oodman v. Metropolitan Railroad, 149 Mass. 335, was such a case, and the defendant was held liable for the act of an independent con- tractor hired by it to dig up and obstruct the streets for the purpose of laying down the track, upon the ground that the contract called for an obstruction to the highway which necessarily would be a nuisance unless properly guarded against. The same principle is further illustrated in Curtis v. Kiley, 153 SECT. I.] BOOMER V. WILBUR. 341 Mass. 123, and Thompson v. Lowell, Lawrence, & Haverhill Street Railway, 170 Mass. 577. Again, if the contract calls for the construction of a nuisance upon the land of the employer, he may be held answerable for the conse- quences. In Gorham v. Gross, 125 Mass. 232, the defendant had caused to be constructed by an independent contractor a party wall, half on the defendant's land and half upon adjoining land, and after it was completed and accepted it fell, causing damage to the property of the adjoining landowner. There was e^'idence that the fall of the wall was occasioned by negligence in its construction. The court said that the wall as constructed was a nuisance "likely to do mis- chief," and held the defendant answerable for the damage caused by its fall. To the same effect is Cork v. Blossom, 162 Mass. 330. The instructions to the jury allowed them to find a verdict for the pkintiff, not upon the ground that the chimney was a nuisance "likely to do mischief," but upon the ground that the work of repair called for by the contract was necessarily a nuisance within the rule stated in Woodman v. Metropolitan Railroad, ubi supra, and other similar cases. The work called for was the repair of chimneys. At most the brick were to be taken off for a few feet and relaid. The work which was to be done was not such as would necessarily endanger persons in the street. It did not involve throwing the brick into the street, or causing or allowing them to fall so as to endanger persons traveling therein. It is plain that unless there was negligence in the actual handling of the brick, there could be no injury to the passing traveler. The case very much resembles Pye v. Faxon, 156 Mass. 471. The plaintiff in that case, being the tenant of a house, sued the owner of an adjoining lot for trespasses alleged to have been committed upon the plaintiff's estate by the defendant while engaged in constructing a large building on his lot. It appeared from the testimony that the wall next to the plaintiff's house was not built on the boundary line, but was several inches from it, and that the staging used in building it was placed upon the inside; that the brick when laid pressed out the mortar, which was then scraped off by the trowels of the masons, and some of it dropped upon the plaintiff's land, upon her rear windows, and upon the clothes hanging in her back yard. At the trial the pre- siding judge instructed the jury that if the dropping of the mortar was from the carelessness of the workman the defendant was not liable, but if it was something necessarily involved in the building of the wall, then he might be liable; and these instructions were held to be correct. This is not a case where the work, even if properly done, creates a peril, unless guarded against, as in the cases relied upon by the plain- tiff. The accident was caused by the act of the contractor in doing 3-42 DOLL V. RIBETTL [CHAP. IV. what it was not necessary for him to do, what he was not expected to do, and Avhat he did not intend to do. If it had been necessary for him to topple the chimney over into the street, or to remove the bricks by letting them fall into it, or the contract had contemplated such ac- tion, the instructions would not have been objectionable; but as this was not necessary or intended, the work could not be classed as work which, if properly done, was ordinarily attended with danger to the public. The negligence, if any, was in a mere detail of the work. The con- tract did not contemplate such negligence, and the negligent party is the only one to be held. The case is clearly distinguishable from Woodman v. Metropolitan Railroad, uhi supra, and others of a like character, and must be classed with Conners v. Hennessey, ubi supra, and others like it.^ DOLL V. RIBETTL Circuit Court of Appeals, 1913. [Reported 203 Fed. ,593.] Gray, Circuit Judge. The defendant in error (hereinafter called the plaintiff) brought an action of trespass in the court below against the plaintiff in error (hereinafter called the defendant), to recover damages for personal injuries received by him while passing along the sidewalk in front of the building occupied by defendant, in the city of Pittsburgh. The statement of claim sets forth the following: That on the 14th day of February, 1910, and prior thereto, defend- ant was the lessee and occupant of a certain building on Penn Avenue, one of the principal streets in the said city of Pittsburgh and devoted chiefly to business purposes. The building was six stories in height and stood flush with the sidewalk of Penn Avenue, with windows of the ordinary type, intended to be opened and closed by sliding their sashes up and down. Along the side of the said street next to this building was the usual sidewalk, which, being in a frequented part of the city, was in constant use by pedestrians at all hours of the day. That in the said city of Pittsburgh, it had been a custom to have the windows of such buildings cleaned by persons standing outside of the sash and on the sills of the windows, secured from falling by a stout belt worn about the waist, with a strap on each side thereof, fastened to a hook or other fixture set for the purpose in the side frames or 1 The remainder of the opinion, in which a (juestion of evidence is discussed, is omitted. See also State v. General Stevedoring Co., 213 Fed. 51, 70, 72; Davis v. Whit- ing, 201 Mass. 92; Berg v. Tarsons, 176 N. Y. 109; Sanford v. Pawtucket St. Ry., 19 R. I. 537. — P:d. SECT. I.] DOLL V. RIBETTI. 343 casing of each window. That it was also a custom for persons en- gaged in the cleaning of windows, whether for themselves or under contract for others, to provide their workmen so engaged with belts and straps and the appropriate hooks or fixtures, for use in connection therewith, for the obvious purpose of protecting, as well the persons passing along the sidewalk as the cleaners themselves, and that win- dows on high buikHngs were generally equipped by the owners or occupiers thereof with such hooks or other fixtures. It is then averred that the building occupied by the defendant was not and never had been provided with such hooks, or with any other fit or appropriate fixtures, for the purpose stated. That at sometime before said 14th day of February, 1910, defend- ant entered into a contract with one Hearn, for cleaning the windows of the said building at stated intervals. That on that day, the win- dows opening upon said avenue were being cleaned under said contract by the agents and servants of Hearn. H. C. Burrell, one of said agents or servants, while so engaged, was standing on the outer sills of the windows while doing his work, without using a safety belt or other adequate safety appliance, as theretofore referred to, to prevent him from falling. The defendant, long prior to said 14th day of February, 1910, "knew, or by the exercise of reasonable care should have known, that the windows of the building were not equipped with the customary hooks or other appropriate fixtures hereinbefore referred Jo; and knew, or by the exercise of reasonable care should have known, that some of the windows giving upon Penn Avenue were so defective . . . that they could not be cleaned on the outside, except by persons standing on the outer sills thereof." That on the day last aforesaid, while plaintiff was lawfully walking upon the sidewalk on Penn Avenue, and passing the said building, the said Burrell, then engaged in so cleaning a window on the fourth story front thereof, above said sidewalk, and without the knowledge of the plaintiff, accidentally lost his balance and fell upon plaintiff, thereby injuring him, as thereinafter set forth. The plaintiff was a physician and surgeon, practicing in the city of Pittsburgh, and was severel}' and permanently injured by this acci- dent. The facts alleged in the statement of claim are for the most part undisputed, and there was ex-idence tending to support all of the allegations of fact upon which were based the charge of negligence of the defendant. The case was submitted to the jury, with a charge by the court, and to the judgment upon the verdict in favor of the plain- tiff this writ of error is taken. The only question raised by the assignments of error (apart from the one founded on the refusal of the court to direct a verdict for the defendant), is as to the legal responsibility of the defendant, as occu- 344 DOLL V. KIBETTI. [CHAP. IV. pant of the building, for such neglect or default of an independent con- tractor undertaking to clean defendant's windows, as made the work unreasonably dangerous to those of the public lawfully using the side- walk beneath. It was insisted by the defendant in the court below, as here, that the window cleaning contractor, l)eing a man skilled and experienced in that line of work, had taken the responsibility for the conduct thereof out of the hands of the'defendant into his own, and that he alone, and not the defendant, was liable for any. negligence in the conduct of that work. In this case, however, we agree with the court below, that the fact that the work was in the hands of an independent contractor cannot be interposed as a defense to the liability with which the defendant is sought to be charged. The defendant was a lessee and occupier of the building in ques-. tion. As such, he was in control thereof, and the law imposes upon such occupier a very positive duty to those using the highway upon which the building abuts, to use the care requisite, according to the circumstances, to guard them against injury resulting from the condi- tion of the premises, or from what is being done in or about the same, by the direction or permission, or for the convenience and benefit, of the occupier. In cases like the present, the exigence of such duty is not affected by the fact that the faulty conditions, from which re- sulted the damage complained of, were due to the negligence of an independent contractor in operating under the contract. This duty is peculiar to the situation, and is as just as it is severe. It places the responsibility for what happens on such premises on the occupier who is in control of the same, and protects those of the public who, in the use of the highway along such premises, lawfully come within dangers originating thereon. Of such dangers, the casual user of a sidewalk is generally unwarned, and the matters from which they arise are specially within the knowledge, or should be within the knowledge, of the occupier. What is said by Sir Frederick Pollock in his philosophical work on Torts, in relation to the duties imposed by law on the occupiers of buildings, applies as well to the duty of such occupiers to those who are in lawful use of the adjacent highway, as to the duty to those who resort to the premises in the course of business in which the occupier is concerned or interested: "The duty is founded not on ownersliip but on possession, in other words, on the structure being maintained under the control and for the purposes of the person held answerable. It goes beyond the common doctrine of responsibility for servants, for the occupier cannot dis- charge himself by employing an independent contractor for the main- tenance and repair of the structure, however careful he may be in the choice of that contractor. Thus the duty is described as being imper- sonal rather than personal. Personal diligence on the part of the occu- SECT. I.J DOLL V. laBETTI. 345 pier and his servants is immaterial. The structure has to be in a rea- sonably safe condition, so far as the exercise of reasonable care and skill can make it so. To that extent there is a limited duty of insurance, as one may call it, though not a strict duty of insurance such as exists in the classes of cases governed by Rylands v. Fletcher [L. R. 3 H. L. 330, 37 L. J. Ex. 161]." Where the thing committed to an independent contractor to do for the occupier, on or about his premises, is of itself inherently danger- ous, such contractor is the mere instrument or agent of the occupier, so far as concerns the responsibility to those lawfully coming within such danger. In the present case, the responsibility of the defendant, as occupier, is the same as if the window cleaner, who fell from the window sill, had been the ordinary servant of the defendant. He was bound in either case to use the care requisite to see that the work of cleaning his windows was not made unreasonably dangerous to one passing on the sidewalk. This, in effect, is the principle announced by the Supreme Court in the case of Water Co. r. Ware, 16 Wall. 566, 21 L. Ed. 485: " When a person is engaged in a work, in the ordinary doing of which a nuisance occurs, the person is liable for any injury that may result to third parties from carelessness or negligence, though the work may be done by a contractor." The duty imposed by law on the occupier is an absolute duty, which he cannot shift. It is by reason of his control thereof, that the occupier of premises on a public street or highway owes, as has been said, a duty of quasi insurance to those using the highway against injury resulting from the condition of the premises, or from what is being done on or about the same for the convenience and benefit of the occupier. So a general contractor having possession and control, for the purpose of erecting buildings for the owner of the premises, cannot relieve himself from liability for a dangerous situ- ation, though created by an independent subcontractor, as recently decided by this court in the case of Wilson v. Hibbert, 194 Fed. 838, 114 C. C. A. 542. There is little or no difference in English or American authorities on this point, and it is unnecessary to cite the long list of such au- thorities which have been brought to our attention by the ability and industry of the learned counsel of the defendant in error. This prin- ciple was given a wider application by the Supreme Court in the case of Chicago v. Robbins, 2 Black, 418, 17 L. Ed. 298. In that case, the defendant, owning a lot in Chicago, contracted in writing with another to erect a building thereon, which included the excavation of an area in the sidewalk next to and adjoining it, so as to furnish light and air to the basement. After the excavation had been made, it was left unguarded by the contractor, and the plaintiff was injured by falling therein. On the ground that the contractor was doing the thing 34G DOLL V. RIBETTI. [CHAP. IV. which he was employed to do, which was inherently dangerous to the users of the sidewalk, the court held the owner who had employed the contractor liable for the injury occasioned by the neglect to surround the excavation with sufficient lights and guards. Speaking of the owner and employer, the court said: " He cannot escape liability by letting work out like this to a con- tractor and shift responsibility on him if an accident occurs. He can- not even refrain from directing his contractor in the execution of the work, so as to avoid making the nuisance. A hole cannot be dug in the sidewalk of a large city and left without guards and light at night, without great danger to life and limb, and he who orders it dug, and makes no provision for its safety, is chargeable, if injury is suffered." This wider and more inclusive rule is variously stated in a multi- tude of cases, both English and American, and is very clearly stated by the Supreme Court of Ohio in Co^^ngton & Cincinnati Bridge Co. v. Steinbrock, 61 Ohio St. 223, 55 N. E. 619, 76 Am. St. Rep. 375: "The weight of reason and authority is to the effect that where a party is under a duty to the public or third person to see that work he is about to do or have done is carefully performed, so as to avoid injury to others, he cannot, by letting it to a contractor, avoid his lial)ility in case it is negligently done to the injury of another. . . . It is the danger to others, incident to the performance of the work let to contract, that raises the duty and which the employer cannot shift from himself to another so as to avoid liability, should injury result to another from negligence in doing the work." In such cases, the principal makes the contractor an agent or serv- ant, for whose negligence he is responsible. So in the English case of Bower v. Peate, 1 Q. B. Div. 321. Here the plaintiff and defendant occupied adjoining houses. Defendant, having decided to rebuild his house and in doing so to carry his foundations lower than the founda- tions of the plaintiff's adjoining house, entered into a contract with a builder to do all the necessary work. The written contract contained a clause by which the contractor agreed to take upon himself the risk and responsibility of shoring and supporting, as far as necessary, the adjoining building affected by this alteration, during the progress of the work. Cockburn, C. J., dehvering the opinion of the Queen's Bench Division of the High Court of Justice, says : "The answer to defendant's contention may, however, as it appears to us, be placed on a broader ground, namely, that a man who orders work to be executed, from which, in the natural course of things, in- jurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mis- chief, and cannot relieve himself of his responsibility by employing I SECT. I.] DOLL V. EIBETTL 347 some one else — whether it be the contractor employed to do the work, from which the danger arises, or some independent person — to do what is necessary to prevent the act he has ordered to be done from becoming wrongful." See, also. Tarry v. xA.shton, 1 Q. B. Div. 314. If the work to be done by the contractor for the occupier is neces- sarily attended with some danger, even when performed without negligence by the contractor, such occupier would be responsible for having neglected to guard against such inevitable danger should an in- nocent third person suffer injury therefrom. Thus, in the case of Jager V. Adams, 123 Mass. 26, 25 Am. Rep. 7, where one was building a brick wall abutting on the highway, and plaintiff was injured by a falling brick, though the servant who dropped it was not negligent, the court said: " It is a matter of common knowledge and experience that when men are breaking and handling bricks in the construction of such a wall, some of the material may fall, although the' workmen are in the exercise of ordinary care. The immediate cause of the evil in such case may indeed be accidental, but it is an accident which the builder of the wall, in \new of the danger to life and limb, may be bound to con- template and provide against by safeguards or barriers, so that the traveler may not be exposed to injury." See, also, Shipley v. Fifty Associates, 101 Mass. 251, 3 Am. Rep. 346. We have not overlooked the fact that the falling body by which the plaintiff was injured was a living man, capable of exercising his own will and capable, therefore, of causing or contributing to his fall by his own negligence. But we have not been able to discover in these facts a sufficient reason for relieving the occupier of the premises from liabilit}^ As we have tried to show, the man whose fall did the harm in question must be regarded as the servant of the occupier, although an independent contractor did intervene, and the occupier cannot es- cape liability for the negligence of his servant and agent, even under such unusual circumstances as these. On principle, the servant's con- trol over his own will and his own movements does not seem to make any difference. The occupier was the master, and if in that charac- ter he had ordered the servant to assume the cUingerous position, and the fall had taken place while the servant was obeying the order, the master would have been as completely liable as if the falling body had been an inanimate object carelessly placed on the window ledge. And we think tlie same result must follow, although the master know- ingly permits (but does not directly order) his serAant to assume a position so dangerous that the servant's lack of care for his own safety may be followed by injur\- to an innocent passer-by. This is little more than a restatement of the proposition, that he who, either him- self or by an agent, does an act inherently dangerous to the innocent 348 . DOLL V. RIBETTI. [CHAP. IV. users of a highway — whether the order be given directly or through the mouth of an independent contractor — is charged with a high de- gree of responsibihty, nearly akin to the responsibility of an insurer. The court, having correctly instructed the jury that the employ- ment by defendant of an independent contractor to clean the windows of his building was not available as a defense, it only remained to submit to the jury, not whether this work was dangerous, but whether defendant had used reasonable care in guarding against the dangers that were naturally incident thereto. It is a matter of common knowledge that work done on the outside of a building, such as in this case, or in the case of work done on scaffolding, is attended with dangers to those using the sidewalk beneath. Such accidents, whether negligent or non-negligent, must be guarded against, either by means calculated to prevent the falling of bodies, or by such barriers or warn- ing notices as would prevent the use of the sidewalk within the area of danger, the only question to be determined being whether defendant has used reasonable care to safeguard the situation. The charge of the court below was in another respect more favor- able to the defendant than it had a right to demand. The jury were repeatedly instructed that the burden rested upon the plaintiff to show, first, that this work was dangerous work, and second, that the defend- ant was guilty of negligence in not acting as a person of ordinary prudence should act, in order to guard against its dangers. The rule of evidence applicable in such cases is thus stated by Sir Frederick Pollock: "Where damage is done by the falling of objects into a highway from a building, the modern rule is that the accident, in the absence of ex- planation, is of itself evidence of negligence. In other words, the bur- den of proof is on the occupier of the building. If he cannot show that the accident was due to some cause consistent with the due repair and careful management of the structure, he is liable." In other words, the maxim res ipsa loquitur is apphcable to cases like the present. This rule rests upon both reason and authority. It is the dictate of a wise public policy, that of protecting the right of those lawfully using the public highways, to be unmenaced by dangers resulting from the condition of adjoining premises, or from what is being done for, or by permission of, the occupiers, on or about the same. These things, though known to such occupiers, cannot be known or appreciated by the users of the highways. Bodies are not expected to fall from the windows of buildings, upon the adjoining highways. Such happenings are not consistent with the usual and orderly con- duct and menage of such buildings. The leading cases of Byrne v. Boadle, 2 H. & C. 722, and of Kearney r. London, Brighton & South Coast Railway Co., 6 Q. B. Cas. 759, have been followed by many other cases, both in England and in this country, and the applicability of the rule of evidence em- SECT. II.] LYONS V. MERRICK. 349 bodied in the maxim res ipsa loquitur, to objects falling from buildings into a highway, is well established. The jury, however, having found both the questions thus submitted in favor of the plaintiff, the assignments of error, as to the charge of the court in regard to the defense of an independent contractor, are overruled, and the judgment below is hereby affirmed.^ SECTION II. Liabilitij for Animals. LYONS V. MERRICK. Supreme Judicial Court of Massachusetts, 1870. [Reported 105 Mass. 71.] At the trial in the Superior Court, before Devens, J., the plaintiff offered evidence tending to show that the defendant's mule, and the horse of Fuller, which the defendant was pasturing for hire, came into the plaintiff's pasture and there so chased, kicked, and injured the plaintiff's mare that she died; that the mule was accustomed, before the time of this injury, to jump and escape from the lots of the defend- ant; that the defendant knew of this habit of the mule; and that the lot where the defendant placed the mule and horse was insufficiently and negligently fenced. It appeared that the lot of the defendant, from which the mule and horse escaped, was situated about half a mile from the plaintiff's pas- ture ; that next to the defendant's lot was the lot of Peter Glover, next to Glover's lot was a lot of Simon Bloomer, and next to Bloomer's lot was the pasture of the plaintiff. The defendant offered evidence tending to show that " the partition fence between his lot and Glover's had not been legally divided, but that for the purpose of repairs one portion had always been repaired by himself and those under whom he claimed, and the other by Glover and those under whom he claimed; that the animals escaped through that portion of the fence which Glover was accustomed to keep in repair, and that it was not a lawful fence ; that between Glover's lot and Bloomel"'s lot there was no fence at all, and between Bloomer's lot and the plaintiff's pasture was not a lawful fence; and that after the animals escaped into Glover's lot, they then passed through ' See, also, Chicago v. Robbins, 2 Black, 418; Water Co. v. Ware, Hi Wall, 567, 576; Wetherbee v. Partridge, 175 Mass. 185; Storrs v. Utica, 17 N. Y. 104; Bower v. Peate, 1 Q. B. D. 321. — Ed. 350 LYONS V. MERRICK. [CHAP. IV. Bloomer's lot and over the insufficient fence next the plaintiff's pasture into the pasture." ^ Colt, J. The declaration charges the defendant with negligence in turning his mule, and a horse which he was keeping for hire, into a pasture insufficiently fenced. The instructions given at the trial, as to what would be negligence in this regard, were full and accurate. The defendant cannot avoid the liability by showing that the obligation to maintain that part of the fence through which the animals escaped was upon a third party, who owned the adjoining land over which the animals passed on their way to the plaintiff's pasture. The rights and obligations existing between adjoining owners in respect to fencing, whether regulated by statute, or by agreement, do not affect the right to recover in this case. At common law, the tenant must keep his cattle upon his own land at his peril. The defendant, as against the plaintiff, is subject to this common law duty, the parties are not ad- joining owners, and their obligations are not affected by statute in this respect. It was negligence to turn the animals into a lot insecurely fenced, for which the defendant is responsible if any injury ensued, without regard to the obligations existing between the defendant and the tenant of the next lot. It may be that the defendant would not be liable in trespass for their escape into that lot, if the tenant of it was in fault, for no one can recover for an injury to which his own negligence contributed. And yet as to the plaintiff, the animals while in that lot were unlawfully there, and no obligation rested upon him to fence his lot against them. It was therefore immaterial what the condition of the fence aroimd the plaintiff's pasture was. Rust v. Low, 6 Mass. 90. Eames v. Salem & Lowell Railroad Co., 98 Mass. 560. The instructions asked for on this part of the case could not be properly given. The other instructions asked were also properly refused. The owner of an animal, or the person who in his place and by contract with him has the exclusive custody and control of it, is liable for injuries which he negligently suffers it to commit. The liability stands wholly upon the ground of actual or presumed negligence. If the injury' is commit- ted while trespassing upon the lands of others, the owner is charge- able, and is responsible for the damage which directly results there- from as the natural and probable consequence. In other cases he may be liable, although there is no trespass, and the animal is rightfully in the place where the mischief is done; as where the injury comes from the vicious disposition or mischievous habits of the animal, of which the owner had previous actual notice; or where, without actual notice, the disposition and habits are so universal among the species that notice is presumed, as in the case of wild and savage beasts. The owner or keeper of such animals, with actual or implied notice of their character, is bound at his peril to keep them, at all times and in all ^ Pleadings, requests to charge, and arguments are omitted. — Ed. sp:ct. il] vredenburg v. behan, 351 places, properly secured; and is responsil)le to any one who without fault on his own part is injured by them. The rulings which were asked on this point proceed upon the ground that the defendant could not be held liable, and the action could not be maintained at all, without proof of knowledge on his part that these animals were vicious and accustomed to do mischief. But, on the part of the defendant, there was negligence enough to support the action, in placing the animals where they would be likely to escape and become trespassers upon the plaintiff; and upon the question of the right to maintain the action the defendant's knowledge or want of knowledge of their character was immaterial. We are not required to consider what effect, if any, it would have upon the amount of the damages for which he would be liable. The form of the plaintiff's declaration does not require him to prove the alleged viciousness and the defendant's knowledge, because with- out these allegations there is enough stated to charge the defendant with negligence, and the plaintiff was bound to prove no more than was necessary to make out his case. This is the rule in actions of tort, where the plaintiff is not obliged to prove allegations not essentially descriptive or so connected with material averments that they cannot be separated. McDonald v. Snelling, 14 Allen, 290. Barnes v. Chapin, 4 Allen, 444. Decker v. Gammon, 44 ]\laine, 322. Shearman & Red- field on Negligence, § 185. As to the defendant's liability for the damage done by the horse which he was keeping for hire, the rule laid down at the trial was certainly sufficiently favorable to him. Barnum v. Vandusen, 16 Coim. 200. Exceptions overruled. VREDENBURG v. BEHAN. Supreme Court of Louisiana, 1881. [Reported 33 La. Ann. 627.] Todd, J.^ . . . 1. The facts out of which this controversy grew are, substantially, as follows: The defendants were members of an association or society known as the Crescent City Rifle Club. In July, 1877, the club, wishing to send some of its members north to participate in an inter-State rifle shooting match, about to take place in New York, for the purpose of providing means therefor, con- cluded to give an entertainment at Milneburg, on Lake Pontchartrain. The Continental Guards,a military company of the city of New Orleans, 1 Part of the opinion is omitted. — Ed. 352 VREDENBURG V. BEHAN. [CHAP. IV. to further the object in view, and as a contribution to the proposed en- tertainment, offered to the Club a bear, owned by the officers of the company, "as a prize to be shot for" on the occasion. The offer was accepted, and a member of the club was instructed to make the neces- sary arrangements for shooting for the bear. The entertainment came off on the 3d of August, 1877, the bear was brought on the ground and was offered as a prize, as pre\aously arranged. He was won by William Arms, a member of the club, and one of the defendants. Arms put him up again to be shot for, and this time he was won by another person, who, however, declined to claim the prize. Arms had the bear taken to the grounds of the club, and caused him to be chained to the corner of the club-house; and there the bear remained until the 30th of October, 1877. These grounds had been leased by the club, and the house erected by it belonged, by the terms of their charter, to the members of the club. The pasture of Mr. Vredenburg, who was engaged in a dairy busi- ness, adjoined the grounds of the rifle club, and he and his employees in going to and from the pasture passed through these club grounds. On the evening of the 30th of October, Mr. Vredenburg went to the pasture after his cows. A short time thereafter, as he was returning from the pasture, he was attacked by the bear, which in the meantime had gotten loose, and received the injuries of which he subsequently died. Tetanus or locked-jaw supervened, attended with great suffering, and his death occurred on the 27th November, twenty-one days after the wounds were inflicted. It is shown that just after Mr. Vredenburg passed through the club grounds on his way to the pasture, a boy, who was employed by him to assist in driving his cattle, and in his dairy business generally, came into the club grounds accompanied by a small dog, and teased the bear by setting the dog on him; and it was whilst the animal was thus worried, that he twisted his collar off, and ran after the dog and finally encountered Mr. Vredenburg; and just as he attacked him he was whipped by his keeper in an effort to prevent the attack, which only served to enrage him the more. This last-mentioned fact, touching the acts of the hired boy in caus- ing the bear to break loose, is charged to have remotely caused or con- tributed to the death of the deceased, and is relied on by the defendants as a ground to relieve them of responsibility for the result; and though not strictly in the order of pleading adopted by their counsel, it is well to consider it at once, and eliminate it from the case. 2. The doctrine of contributory negligence has never been carried to the extent contended for in this instance. Had the acts referred to been committed by Vredenburg himself, there would be great force in the plea urged; and the principle invoked would be strictly applicable. It is for his own acts, however, in this respect, that a man is bound and for which he must suffer; but he cannot be held equally answerable for the acts, faults, and negligence of his employee. SECT. II.] VREDENBURG V. BEHAN. 353 The master or employer is only answerable for the faults of his em- ployee when committed " in the exercise of the functions of his em- ployment, and when he might have prevented the act and not done it." C. C. 2320. In this instance, the boy's act was not in the remotest degree con- nected with his employment; his employer was not present, was not knowing or consenting to it; and it was not in his power to prevent it. Besides, the responsibility attaching to those who own, control, or keep animals feroB naturoe, to which class a bear belongs, is of that strict and grave character as not to be relieved or modified by con- siderations of the kind presented, nor to be measured by rules that apply to owners or keepers of domestic animals. Animals of this kind, such as lions, tigers, bears, are universally recognized as dangerous. It is the duty of those who own or keep them, to keep them in such a manner as to prevent them from doing harm, under any circumstances, whether provoked, as they are liable to be, or not provoked. There must be security against them under all contingencies. Domat, p. 475; Merlin, Repertoire, tome 26, p. 242, verbo Quasi-Delit; Marcade, tome 5, pp. 272, 273; 1 Law Repts., p. 263; 3 Law Repts., p. 330. Nor does it matter that an animal of this kind may be to some extent tame and domesticated; the natural wildness and ferocity of his nature but sleeps, and is liable to be awakened at any moment, sud- denly and unexpectedly, under some provocation, as was the case in this instance. If the defendants are otherwise liable for the acts of the bear, the acts of the boy in provoking him cannot, for these reasons, affect in the least that liability. . . . 4. A great deal of testimony was taken that had little or no bear- ing upon the real issues involved in the case, and many bills of exception appear in the record embodying the objections to its admission. These objections went mainly to the effect of the evidence, as held by the judge a quo, though much of it was wholly irrelevant. The conclusion we ha^'e come to touching the merits of the case, and the disposition we shall make of it, render it unnecessary that we should pass upon these various bills. The salient facts of the case, and upon which our conclusions mainly rest, summarized from the state- ment heretofore given, are these: That the bear was accepted l)y the rifle club as a prize to be shot for under the auspices of the club, and to raise a fund for the purposes of the club; that it was shot for, and subsequently carried to the club grounds by the direction of a member of the club and one of the de- fendants ; that it was kept there and fed there for nearly three months by an employee of the club, and the expenses for its keeping and feeding paid for by the treasurer of the club, and an account of such expenses submitted to the governing committee of the club, of which some of 354 VREDENBUKG V. BEHAN. [CHAP. IV. the defendants were members; that it was seen from time to time at the club house by members of the club and by all of the defendants save one; that no one objected to his being there; that whilst thus kept on the club grounds in charge of a keeper, he broke loose, attacked and wounded Mr. Vredenburg, who died of the wounds inflicted. The Code declares, " that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." That a person is responsible for the damage resulting from "his negligence or imprudence." That he is answerable, not only for his own acts, but for the acts of persons for whom he is responsible, and of things in his custody. C. C. 2315, 2316, 2317, 2321. The law upon this subject is to the same effect under every enlight- ened system of jurisprudence. Thus a distinguished writer on this subject has said: "The mere keeping of an animal of a fierce nature, such as a tiger or bear, or dog known to be wont to bite, is unlawful, and therefore, if any person is bitten or injured by such an animal, an action is main- tainable against the person who keeps it." Addison on Torts, pp. 22, 230. And again: " The owner of wild and savage beasts, such as lions, tigers, wolves, bears, etc., if he neglects to keep them properly secured, is liable for injuries committed by them according to their nature, without any evidence that he knew them to be ferocious, or that he was negligent in the mode of keeping them, since he is bound in ordinary prudence to know that fact and to secure them from doing harm." Shearman and Redfield on Negligence, § 188. "One who harbors a dangerous animal on his premises, though not his owner in any sense, is nevertheless responsible for in- juries committed by it while on or near his premises, to the same extent as if he owned it." Shearman and Redfield on Negligence, pp. 227, 228. Mr. Justice Blackburn, of the English Court of Exchequer, thus lays down the rule on this subject: " We think the true rule of law is, that the person, who for his own use or pleasure brings on his land, and collects and keeps there any- thing likely to do mischief, if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all the damage, which is the natural consequence of its escape. . . . This is, we think, established to be the law, whether the things so brought be beasts, or water, or filth, or stenches." Fletcher v. Rylands, Court of Exchequer, 1 Law Repts., 263; see, also, Hale's Pleas of the Crown, vol. 1, 430; May v. Bourdetts, 9th Adolphus & Ellis (3 Q. B.) n. s. 101; Earl v. Van Alstein, 8 Barbour, X. Y. 630; 41 Cal. 138. SECT. II.] FILBURN V. ri:0'PLE'S PALACE & AQUARIUM CO., LTD. 355 These principles thus enunciated are sound and have our full ap- proval. There is a recognition of their spirit in an ordinance of the city of New Orleans on the subject, which declares: " No wild or ferocious animals shall be kept within the limits of the city, on the premises of individuals, or in menageries, unless such animals be under the charge of an armed guard day and night." Leovy's City Laws and Ordinances, Art. 703. " ' And it is to be noted that this bear was kept on the club grounds, within the city limits, in open disregard of this ordinance. The fundamental principle on which the liability of the defendants rests, is concisely expressed in the following legal maxim, that is as old as the law itself and recognized in every known system of juris- prudence: Sic utere tuo ut alienum non laedas. Proprietors or co-proprietors of lands or houses must not permit their property to l>e put to such uses as to cause injury to others, whether by being made a refuge for noxious animals or a magazine for gun powder, dynamite, or other explosive substances, or as a gen- erator of foul and pestilential vapors destructive of health. And there was a tacit, though clear recognition of this principle by the defendants themselves, or some of them, in calling a meeting after Mr. Vreden- burg's death to raise contributions for the relief of his family. No liability was openly avowed or intended to be acknowledged on ac- count of this sad affair by such action, but there was a latent sense of responsibility evidently felt, which found expression in the language of one of the defendants, when testifying as a witness on the trial of the case, and who said by way of explaining the motive that prompted the proposed assistance, " that it was on account of the accident occurring on the grounds of the club." FILBURN V. PEOPLE'S PALACE & AQUARIUM CO., LTD. Court of Appeal, 1890. [Rcportrd 25 Q. B. D. 258.] Appeal from a judgment of Day, J. The action was brought to recover damages for injuries sustained by the plaintiff by his being attacked by an elephant, which was the property of the defendants, and was being exliibited by them. The learned judge left three questions to the jury : whether the elephant was an animal dangerous to man; whether the defendant knew the elephant to be dangerous; and whether the plaintiff" brought the attack on himself. The jury answered all three questions in the negative. The learned judge entered judgment for the plaintiff" for a sum agreed upon in case the plaintiff' should be entitled to recover. 356 FILBURN V. people's PALACE & AQUARIUM CO., LTD, [CHAP. IV, The defendants appealed. Lord Esher, M. R. The only difficulty I feel in the decision of this case is whether it is possible to enunciate any formula under which this and similar cases may be classified. The law of England recog- nizes two distinct classes of animals ; and as to one of those classes, it cannot be doubted that a person who keeps an animal belonging to that class must prevent it from doing injury, and it is immaterial whether he knows it to be dangerous or not. As to another class, the law assumes that animals belonging to it are not of a dangerous nature, and anyone who keeps an animal of this kind is not liable for the damage it may do, unless he knew that it was dangerous. What, then, is the best way of dealing generally with these different cases? I suppose there can be no dispute that there are some animals that every one must recognize as not being dangerous on account of their nature. Whether they are fercB natures so far as rights of property are concerned is not the question; they certainly are not so in the sense that they are dangerous. There is another set of animals that the law has recognized in England as not being of a dangerous nature, such as sheep, horses, oxen, dogs, and others that I will not attempt to enumerate. I take it this recognition has come about from the fact that years ago, and continuously to the present time, the progeny of these classes has been found by experience to be harmless, and so the law assumes the result of this experience to be correct without further proof. Unless an animal is brought within one of these two descriptions — that is, unless it is shown to be either harmless by its very nature, or to belong to a class that has become so by what may be called cultivation — it falls ^-ithin the class of animals as to which the rule is, that a man who keeps one must take the responsibility of keeping it safe. It cannot possibly be said that an elephant comes within the class of animals known to be harmless by nature, or within that showTi by experience to be harmless in this country, and conse- quently it falls within the class of animals that a man keeps at his peril, and which he must prevent from doing injury under any circum- stances, unless the person to whom the injury is done brings it on him- self. It was, therefore, immaterial in this case whether the particular animal was a dangerous one, or whether the defendants had any knowledge that it was so. The judgment entered was in these cir- cumstances right, and the appeal must he dismissed. LiNDLEY, L. J. I am of the same opinion. The last case of this kind discussed was May v. Burdett,^ but there the monkey which did the mischief was said to be accustomed to attack mankind, to the knowledge of the person who kept it. That does not decide this case. We have had no case cited to us, nor any e\ndence, to show that ele- phants in this country are not as a class dangerous; nor are they com- iQQ. B. 101. SECT. II.] HARDIMAN V. WHOLLEY. 357 raonly known here to belong to the class of domesticated animals. Therefore a person who keeps one is liable, though he does not know that the particular one that he keeps is mischievous. Appl3'ing that principle to this case, it appears that the judgment for the plaintiff was right, and this appeal must be dismissed. BowEN, L. J. I am of the same opinion. The broad principle that governs this case is that laid down in Fletcher v. Rylands,^ that a person who brings upon his land anything that would not naturally come upon it, and which is in itself dangerous, must take care that it > is kept under proper control. The question of liability for damage done by mischievous animals is a branch of that law which has been applied in the same way from the times of Lord Holt ^ and of Hale until now. People must not be wiser than the experience of mankind. If from the experience of mankind a particular class of animals is dangerous, though individuals may be tamed, a person who keeps one of the class takes the risk of any damage it may do. If, on the other hand, the animal kept belongs to a class which, according to the experience of mankind is not dangerous and not likely to do mis- chief, and if the class is dealt with by mankind on that footing, a person may safely keep suck an animal, unless he knows that the particular animal that he keeps is likely to do mischief. It cannot be doubted that elephants as a class have not been reduced to a state of subjection; they still remain wild and untamed, though individuals are brought to a degree of tameness which amounts to domestication. A person, therefore, who keeps an elephant, does so at his own risk, and an action can be maintained for any injury done by it, although the owner had no knowledge of its mischievous propensities. I agree, therefore, that the appeal must be dismissed. Appeal dismissed. HARDIMAN v. WHOLLEY. Supreme Judicial Court of Massachusetts, 1899. [Rrporfcd 172 Mass. 411.] Holmes, J. This is an action to recover for personal injuries caused by the kick of a horse. The wagon to which the horse was attached had stuck in the mud half an hour before the accident, and this horse and another had been unhitched and were feeding out of feed-bags attached to their heads. There was evidence that this horse had been made nervous by the effort to pull the wagon out, and by being brutally beaten, and that he was standing partially on the sidewalk. He was standing at right angles to it, and, as the plaintiff approached, 1 Law Rep. 1 Ex. 265; Law Rep. 3. H. L. .330. ^ See Mason c. Keeling, 12 Mod. 332. 358 WILLIAMS V. BRENNAN. [CHAP. IV. suddenly whirled round and kicked him. The case is here upon an exception to the refusal to direct a verdict for the defendant. The re- fusal was right. It used to be said in England, under the rule requir- ing notice of the habits of an animal, that every dog was entitled to one worry, but it is not universally true that every horse is entitled to one kick. In' England, if the horse is a trespasser and kicks another, the kick will enhance the damages without proof that the animal was vicious and that the owner knew it. Lee v. Riley, 18 C. B. (N. S.) 722. See Lyons v. Merrick, 105 Mass. 71, 76. So, in this Commonwealth, going further, it would seem, than the English law, a kick by a horse wrongfully at large upon the highway can be recovered for without proof that it was \acious. Barnes v. Chapin, 4 Allen, 444. Marsland V. Murray, 148 Mass. 91. Dickson v. McCoy, 39 N. Y. 400, 401. See Cox V. Burbidge, 13 C. B. (N. S.) 430. The same law naturally would be applied to a horse upon a sidewalk where it ought not to be (see Mercer v. Corbin, 117 Ind. 450, 454), and in this case there was evi- dence of the further fact that the horse was in an exceptionally nervous condition in consequence of the driver's treatment. Exceptions overruled. WILLIAMS V. BRENNAN. Supreme Judicial Court of Massachusetts, 1912, [Reported 213 Ma^s. 28.] LoRiNG, J. This is an action under R. L. c. 102, § 146, to recover double damages for injury done by the defendant's dog to the plaintiff's automobile. The presiding judge, [Quinn, J.] refused to direct a ver- dict for the defendant and the case is here on an exception to that ruling. It appeared that as the plaintiff was driving his automobile on the right-hand side of a public way at the rate of some fifteen miles an hour, and as an ice wagon with a single heavy horse was being driven slowly in the opposite direction on the other side of the road, the de- fendant's dog was seen to "go" into the way some thirty or forty feet ahead of the plaintiff. The dog, which was a large one weighing one hundred and thirty-five pounds, ran toward the plaintiff's automobile, barking as he ran; when he reached the automobile he snapped at the right fore tire, but missed it, and his body struck the left fore wheel; this caused the automobile to skid to the other side of the road so that "the automobile, still in contact with the dog, came directly in front of the" horse of the ice wagon. "The dog did not touch the horse, but when the automobile came in front of the horse as aforesaid, the horse reared and descended upon the top of the automobile, causing injuries SECT. III.] KRACH V. HEILMAN. 359 to it for which this action is brought." The only contention made by the defendant is that on this evidence the jury were not warranted in finding that the dog was the sole, direct, and proximate cause of the injury. Denison v. Lincoln, 131 Mass. 236, is decisive against' that contention. Exceptions overruled. SECTION III. The " Civil Damage" Act. KRACH V. HEILMAN. Supreme Court of Indiana, 1876. [Reported 53 Ind. 517.] WoRDEN, C. J. Complaint by the appellee against the appellants in two paragraphs. Demurrer to each paragraph for want of sufficient facts overruled, and exception. Issue, trial by jury, verdict, and judg- ment for plaintiff.^ The substance of the case made by both paragraphs is, that the defendants furnished the deceased with intoxicating liquor, until he became drunk and insensible and unable to take care of himself; that in going home, lying down in his wagon in consequence of his intoxica- tion, he received the injury from the barrel of salt, which injury he would not have received but for having been intoxicated, and from which injury he died. One of the objections made to the complaint, passing over others, is, in our judgment, fatal to both paragraphs. The rule of law is, that the immediate, and not the remote, cause of any event is regarded. We have seen that if the plaintiff is entitled to recover, it is because she was injured "in consequence of the intoxication" of the deceased. The immediate cause of the injury to the plaintiff" was the death of the deceased. The remote cause may have been his intoxication, which led to his injuries, which injuries, in their turn, led to his death. The plaintiff, therefore, was not immediately injured by the intoxica- tion of the deceased. The rule of law above stated is well enough settled. The difficulty that usually arises is in its application. It is sometimes difficult to determine what is the remote, and what the proximate cause of an event. But no difficulty of that sort arises in the present case. Here, according to the allegations, it is clear that the intoxication of the deceased was only the remote cause of the injury to the plaintiff", while his death was the immediate cause of such injury. For such ' The complaint is omitted. — Ed. 360 MEAD V. STRATTOIir. [CHAP. IV. injury, we think, on principle and well-considered authority, the statute does not render the defendants liable to the plaintiff.' The defendants, in causing the intoxication of the deceased, could not have anticipated that on his way home he would be fatally injured by the salt-barrel. That was an extraordinary and fortuitous event, not naturally resulting from the intoxication. Suppose, by way of illustration, that a person, by reason of intoxication, lies down under a tree, and a storm blows a limb down upon him and kills him, or that lightning strikes the tree and kills him. Could it be said, in a legal sense, that his death was caused by intoxication? In the chain of causation, the intoxication may have been the remote cause of his death, because, if he had not been intoxicated, he would not have placed himself in that position, and therefore would not have been struck by the limb or lightning. In the case supposed, it may be assumed as clear, that the parties causing the intoxication would not be liable, under the statute, to the widow, as for an injury to her caused by the intoxication of the deceased. Yet there is no substantial difference between the case supposed and the real case here. See, on the subject of remote and proximate causation, the case of Kelley v. The State, 53 Ind. 311; also, Durham v. Musselman, 2 Blackf. 96. The judgment below is reversed, with costs, and the cause remanded, with instructions to the court below to sustain the demurrer to each paragraph of the complaint. MEAD V. STRATTON. Court of Appeals, New York, 1882. [Reported 87 N. Y. 493.] Miller, J. This action was brought by the plaintiff, who was the wife of Charles Mead, deceased, to recover damages sustained in her means of support by the death of her husband in consequence of intoxication produced by liquor sold to him by said defendant Isaac J. Stratton, at the hotel kept by him, of which the said Margaret M. Stratton, the wife of said Isaac J. Stratton, was the owner; and which, it is claimed, she rented to her husband, or permitted to be occupied as a hotel, knowing that into.xicating liquors were to be and had been sold upon said premises. The complaint alleges that in consequence of the acts of the de- fendants stated and set forth, and in consequence of the intoxication of the late husband of plaintiff, caused as aforesaid, plaintiff had been injured in her means of support and property. ^ The court here considered the following cases: Tisdale v. Norton, 8 Met. 388; Marble i'. Worcester, 4 Gray, 395; Grain v. Petrie, 6 Hill, 522; Ryan v. New York Central R.R., 35 N. Y. 210; Fairbanks v. Kerr, 70 Pa. 86. — Ed. SECT. III.] MEAD V. STRATTON. 30 1 The essential facts established by the verdict were that the de- icndant Isaac J. Stratton was the keeper of the hotel, and the deed was given to his wife who had general charge of the house, except the bar, but was cognizant of the fact that intoxicating liquors were sold there; that the deceased came to the house with a horse and buggy, drank intoxicating liquors several times there, and became so much intoxicated that he was helped into his buggy upon starting for home; that he must have fallen in his buggy, as he was found dead, with his knee caught tightly under the iron cross or foot bar, and his head over between the wheel and the wagon, so that his head was beaten by the spokes and otherwise injured; and that he left a wife and several children who were dependent upon him for support. The statute (chap. 646, Laws of 1873) under which this action is brought provides, that every husband, wife, etc., "or other person who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication . . . shall have a right of action in his or her name against the person who shall, by selling or giving away the intoxicating liquors, cause the intoxica- tion . . . and any person or persons owning or renting, or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable, severally or jointly with the person or persons selling . . . for all damages sus- tained and for exemplary damages." The statute cited provides for a recovery by action for injuries to person or property, or means of support, without any restriction whatever. Both direct and conse- quential injuries are included, and it was evidently intended to create a cause of action unknown to the common law, and a new ground and right of action. (Volans v. Owen, 74 N. Y. 526.) The injury to the means of support was one of the main grounds of the action, and when the party is deprived of the usual means of maintenance, which he or she was accustomed to enjoy previously, by or in consequence of the intoxication or the acts of the person intoxicated, the action can be maintained. (Id.) It is evident that the legislature intended to go in such a case far beyond anything known to the common law, and to provide a remedy for injuries occasioned by one who was instrumental in producing, or who caused such intoxication. While a statute of this character should not be enlarged, it should be interpreted, where the language is clear and explicit, according to its true intent and meaning, having in view the evil to be remedied and the object to be attained. The evident object was to suppress the sale and use of intoxicating liquors, and to punish those who, in any form, furnished means of intoxication, bN- making them liable for damages which might arise, which were caused by the parties who furnished such means. If the injury which had resulted to the deceased in consequence of his intoxi- cation had disabled him for life, or to such an extent as to incapacitate him for labor and for earning a support for his family, it would no 362 MEAD V. STRATTON. [CHAP. IV. doubt be embraced within the meaning and intent of the statute. That death ensued in consequence thereof, furnishes much stronger ground for a claim for a loss of means of support; and a different rule in the latter case would make provision for the lesser and temporary- injury, while that which was greatest and most serious would be with- out any remedy or means of redress. Such could not have been the intention of the lawmakers, and the statute was designed to embrace and must manifestly cover and include all injuries produced by the intoxication, and which legitimately result from the same. If it is an injury which can be repaired by damages, as that arising from a tem- porary disability, or one where death comes as a natural and legitimate consequence of the intoxication, a case is made out within the statute which entitles the injured party to recover such damages. The argu- ment that in this case it was the remote cause, and not the natural and proximate cause of the act of the defendant, would apply with equal force if death had not followed, and, we think, has no point under the peculiar circumstances of this case. There are some decisions in the Supreme Court of this State which bear upon the subject. In Hayes v. Phelan (4 Hun, 733) the opinion holds that the statute gave a right of action only in cases where it lies against the intoxicated person. This conclusion does not, however, appear to have been sustained by a majority of the judges constituting the General Term, and in a note to Dubois v. Miller (5 Hun, 335) an opinion of James, J., is published, dissenting from the views expressed in Hayes v. Phelan, and it is stated that Boardman, J., concurred only in the result arrived at in the decision, and only two justices were present. In Brookmire v. Monaghan (15 Hun, 16),. where the complaint asked damages only by reason of the death of plaintiff's husband, which, it was alleged, was caused by intoxication by liquor sold to the deceased by the defendant, it was held that the complaint did not state a cause of action under the Civil Damage Act, and it was said that the court had heretofore decided, in Hayes v. Phelan, that such damages are not recoverable under the act of 1873. The same question arose in the fourth judicial department in Jackson v. Brookins (5 Hun, 530); and it was there held, that where several persons became intoxicated, and engaged in an affray in which one is killed, his widow may maintain an action against the person who sold the liquor which caused the in- toxication, to recover damages sustained by her for the death of the husband. The same doctrine is upheld in Smith v. Reynolds (8 Hun, 128). In Quain v. Russell (8 id. 319), in the third department, it was held by a majority of the court, that it was not essential to the exist- ence of the cause of action, under the Civil Damage Act, against the \'endor of liquors, that an action should also be maintainable against the intoxicated person, and it is sufficient if the wife has been injured in her means of support through the intoxication of the husband. The case of Hayes v. Phelan is referred to, and it is said that no such prin- 1 SECT. III.] MEAD V. STRATTON. 363 ciple as is claimed in the last case was decided by the court. It will thus be seen that the decisions of the Supreme Court in this State are not entirely harmonious. In the State of Illinois it is held that the action will lie when death ensues. (See Schroder v. Crawford, 94 111. 357; Hackett v. Smelsley, 77 id. 109.) The same rule is upheld in Nebraska (Roose v. Perkins, 9 Neb. 304), and in the State of Iowa (Rafferty v. Buckman, 46 Iowa, 195). Some exceptions are made by the courts of Illinois when the person intoxicated is killed in an affray or when death results from exposure. (Shugart v. Egan, 83 111. 56; Schmidt v. Mitchell, 84 id. 195.) It is not necessary to decide whether these decisions are based on a sound principle, as no such question arises in the case at bar. Cases are also cited from Indiana, which are claimed to be adverse to the views expressed. (See Krach t. Heilman, 53 Ind. 517; Collier v. Early, 54 id. 559; Backes v. Dant, 55 id. 181.) In Krach v. Heilman (supra), the person intoxicated was killed in an affray. The last two cases cited are somewhat analogous to the case at bar, but the decision of the court is not, we think, well supported in either of them. It is also held in Ohio, that under the act in that State in relation to the sale of intoxicating liquors for injury to the means of support in consequence of intoxication which caused death, no recovery of damages can be had. (Davis v. Justice, 31 Ohio, 359; Kirchner v. Myers, 35 id. 85.) We cannot concur in such an interpretation of the act in question, and for the reasons already stated are of the opinion, that, if the death of the deceased was a result necessarily following the intoxication, and was attributable to such intoxication, an action will lie to recover the damages arising to the means of support of the plain- tiff by reason thereof. While thus holding, it is not necessary to decide whether a person producing the intoxication would be liable when death ensued by reason of an affray caused thereby, or under different cir- cumstances from those which are presented in the case at bar. Nor are we called upon to consider in this case the effect of the statute so far as it affects the right of action of the children of the deceased for damages sustained by each of them, as that question is not now pre- sented. The conclusion follows, that there was no error committed by the judge upon the trial in any of his rulings in regard to the question considered. A claim is also made, that the judge erred in refusing to dismiss the complaint, or to nonsuit the plaintiff as to the defendant Margaret M. Stratton. The title to the hotel was in her, and she lived there with her husband, having charge of the domestic arrangements in conducting the business of the hotel. There is evidence tending to show that she had knowledge that her husband was engaged in the business of selling intoxicating liquors, and that he intended to, and did actually, carry on and prosecute such business. Under the evidence it was a question of fact for the jury to determine, whether she had knowledge that the buikling was occupied and used by her husband for any such purpose. And this result was to be arrived at after a due 364 XEU V. M< KECHNIE. [CHAP. IV. consideration of the relations existing between the husband and his wife, and the circumstances surrounding the case."^ . . . It is not important, we think, to consider whether the strict relation of landlord and tenant existed, if ^Irs. Stratton was the owner, and permitted her husband to occupy with the knowledge of the business in which he was engaged of selling intoxicating liquors. -There was no error in any portion of the charge to which exceptions were taken, or in the refusal to charge as requested, or in any other of the rulings on the trial. The judgment was right, and should be affirmed. All concur, except Rapallo, J., taking no part. Judgment affirmed. NEU V. McKECHNIE. CouET OF Appeals, New York, 1884. [Reported 95 .V. }'. 632.] Danforth, J. The act entitled " An act to suppress intemperance, pauperism and crime" (Chap. 646, Laws of 1873), provides in sub- stance that certain persons, and among others, a "child," who shall be injured in means of support by any intoxicated person, or in conse- quence of the intoxication of any person, shall have a right of action against any person who, " by selling . . . intoxicating liquors, caused the intoxication in whole or in part," and may recover from such vendor all damages so sustained, and also exemplary damages. This action is brought under that act. The verdict of the jury es- tablishes that the plaintiff at the time the alleged cause of action ac- crued was a child of the age of fifteen years, the son of Jacob and Barbara Neu; that he was living with his parents and dependent upon his father for support, when the latter, in a state of intoxication, pro- duced in part by the use of lager beer, sold to him by the defendants, murdered plaintiff's mother and then committed suicide. Upon all these questions there was evidence proper for submission to the jury, and their finding in regard to them has not been disturbed by the General Term. Their conclusion is not open to review here. The learned counsel for the appellants, however, argues with much earnestness that the act which deprived the plaintiflF of his father and cut off the support which he had before enjoyed was not a natural consequence of the use of the beer sold by the defendants; that they were not bound to know that Jacob Neu " would strike his wife on the head with an axe, and then cut his own throat with a razor." Perhaps not. But a cause of action may exist without such foresight. The statute does not even require that the vendor shall know that drunken- ' The discussion of this point is omitted. — Ed. SECT. III.] DENNISON V. VAN WORMEK. 365 ness leads to crime of any degree, nor even that it is the cause of pov- erty and beggary, and consequent distress to the drunkard's family. It is enough that these results come from intoxication, and so in Hill v. Berry, 75 N. Y. 229, a wife recovered of the landlord and his tenant because by reason of liquors sold by the latter her husband became intoxicated, wasted his money, neglected his employment, and became incompetent to labor, and, therefore, unable to provide for her, and she was obliged to care for him while in that condition. She suffered not only because his substance was reduced to nothing, but from the loss of productive labor. In Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323, the landlord was required to pay for the plaintiff's horse, because it died from overdriving induced by the driver's intoxication through liquors sold by the defendant's lessee. In Mead v. Stratton, 87 N. Y. 493, 41 Am. Rep. 386, the wife recovered under this act, because the husband, while intoxicated by liquors sold on the defendant's premises, was beaten to death by the wheel of his own wagon while the reins were in his hand, although he was in a state of stupor. In those cases, as well as in others arising under the act, liability was established from the sale of liquors producing intoxication, and the act of the intoxicated person causing injury to the plaintiff in his person, property, or means of support. Those elements exist here. The cause of action is neither taken away nor mitigated because the cause of injury also constitutes a crime. The jury were not to inquire whether either "the homicide or suicide were the natural, reasonable, or prob- able consequences of the defendants' act." It is enough if while intoxi- cated in whole or in part by liquors sold by the defendants, those acts were committed, if by reason of them, or either of them, the plaintiff's means of support were affected to his injury.^ DExNNISON V. VAN WORAIER. Supreme Court of Michigan, 1895. [Reported 107 Mic^. 461.] McGrath, C. J. This is case against a saloon keeper and his bonds- men. The declaration alleges that the sale occurred on Sunday; that plaintiff's husband was intoxicated at the time of the sale, and was in the habit of getting intoxicated, to defendant Van Wormer's knowledge; that he drank the liquor sold to him, and became more intoxicated; that while so intoxicated, and being thereby deprived of his reason, he committed the crime of burglary, by breaking and entering a certain store in the night-time, for which crime he was arrested, tried, and ' The remainder of the opinion discusses another question. — Ed. 366 DENNISON V. VAN WORMER. [CHAP. IV. convicted, and sentenced to the house of correction for the terra of three 3^ears. It appeared upon the trial that the husband had pre- viously committed like offenses, and had served time in Detroit and Cleveland for two of them. The jury returned a verdict of no cause of action.^ The lanji^age of the statute (3 How. Stat. § 2283 e 3) is: "Every wife, child, parent, guardian, husband, or other person who shall be injured in person or property or means of support or otherwise by any intoxicated person, or by reason of the intoxication of any per- son, or by reason of the selling, giving, or furnishing any spirituous, intoxicating, fermented, or malt liquors to any person, shall have a right of action in his or her own name against any person or persons who shall, by selling or gi\ang any intoxicating or malt liquor, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury." This statute clearly refers to such injuries to persons, property, or means of support as are the direct results of the acts done while in- toxicated, and to such other injuries as indirectly result by reason of the intoxication. In Brockway v. Patterson, 72 Mich. 122, Lane and Brockway were both intoxicated, and quarreled, Lane striking Brock- way and causing his death. In Thomas v. Dansby, 74 Mich. 398, Thomas and Free were both intoxicated, and the former's leg was broken by the latter. In Wright v. Treat, 83 Mich. 1 10, the buggy in which plaintiff was riding was overturned, and plaintiff was injured, by a collision with a vehicle driven by Wells and Shafer, who were in- toxicated and were recklessly driving. In Doty v. Postal, 87 Mich. 143, plaintiff's husband was killed by an intoxicated person. In Eddy V. Courtright, 91 Mich. 264, plaintiff's adult son was drowned while intoxicated. In Neu v. McKechnie, 95 N. Y. 632, plaintiff's father killed the former's mother and then himself while intoxicated. In these cases the act done injured plaintiff's person, or took from plain- tiff the means of support. In the present case, plaintiff's husband was not injured or killed by an intoxicated person, nor did the act done by him cut off her support. The act done was not a direct blow at her person, property, or means of support. It was his arrest, con\'iction, and sentence which depri^'ed her of his aid. And, too, a felonioiis in- tent was an essential ingredient of the crime for which he was convicted. Whether that conviction was or was not conclusive, it is unnecessary here to determine. The trial court submitted the question to the jury under instructions most favorable to plaintiff. ^ Part of the opinion is omitted. — Ed. SECT. III.] GAGE V. HAKVEY. 367 GAGE V. HARVEY. Supreme Court of Arkansas, 1898. [Reported 66 Ark. 68.] Battle, J. The question in this case is, can one who becomes in- toxicated upon Hquor sold to him in a saloon or dram-shop by the keeper thereof or his agents, and thereby incapacitated to hold and take care of his money, and who, while in that condition, loses it by having it forcibly or without his knowledge or consent taken from his pockets by some person, maintain an action against the keeper and the sureties on his bond to recover the money so taken? This question arises under section 4870 of Sandels & Hill's Digest, which provides: "Each applicant for a dram-shop or drinking saloon license . . . shall enter into bond to the State of Arkansas, in the penal sum of two thousand dollars, conditioned that such applicant will pay all damages that may be occasioned by reason of liquor sold at his house of business, . . . which bond shall have two good securities thereto, to be approved of by the court;" and under section 4873 which reads as follows : " Any person aggrieved by the keeping of said dram-shop or drinking saloon . . \ may have an action on said bond against the principal and securities for the recovery thereof." The answer to the question obviously depends upon the meaning of the words, " conditioned that such applicant will pay all damages that may be occasioned by reason of liquor sold at his house of business," which are used in section 4870. They should be construed according to the general rule fixing the limit of the liability of parties for the consequences of their acts in other cases, as they in no way indicate an intent to make the liability of the saloon keeper an exception to such rule. According to their legal eflFect, they bind him to pay all damages that may be the natural and proximate result of the use or consump- tion of liquor sold by him or his agents at his place of business. Fur- ther than this the law does not extend the liability on his bond on ac- count of the sale of liquor. As said by Lord Bacon: "It were infinite for the law to consider the cause of causes, and their impulsion one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." Bacon's Maxims, Reg. 1; Broom's Legal Maxims, 165. The material inquiry in this case is, therefore, whether the use or consumption of the liquor sold by the keeper or his agents at his place of business was the proximate cause of the loss of the money mentioned in the question propounded. In determining whether an act of a defendant is the proximate cause of an injury, the rule is that the injury must be the natural and prob- 368 GAGE V. HARVEY. [lHAl'. IV. able consequence of the act — .such a consequence, under the surround- ing circumstances of the case, as might and ought to have been fore- seen by the defendant as hkely to flow from his act; the act must, in a natural and continuous sequence, unbroken by any new cause, oper- ate as an efficient cause of the injury. If a third person intervenes between the act of the defendant and the injury, and does a culpable act, for which he is legally responsible, which produces the injury, and without it the injury would not have occurred, and the act of the de- fendant furnished merely an occasion for the injury, but not an effi- cient cause, the defendant would not be liable. For no one is responsible for the independent wrong of a responsible person to whom he sustains no relation which makes him liable for his wrong independent of an actual participation therein or connection therewith, as, for instance, the master for the acts of the servant in the scope, course, or range of his emplojTnent. Mr. Wharton states the doctrine in question and answer as follows: " Supposing that, if it had not been for the intervention of a responsible third party, the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative; for the general reason that causal connection between negligence and damage is broken by the interpo- sition of independent responsible human action. I am negligent on a particular subject-matter as to which I am not contractually bound. Another person, moving independently, comes in, and either negli- gently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a non-conductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is liable to the person injured." Wharton, Negligence, § 134, et seq. Vse will give a few illustrations of the rule stated, beginning with Alexander v. Town of New Castle, 17 N. E. Rep. 200, in which a town was sued for injuries alleged to have been caused by a pit or excavation in a street, which the town wrongfully and negligently suffered and permitted to remain open and uninclosed. The plaintiff was a special constable, and was thrown into the pit by a prisoner he had under arrest, as they were passing and opposite the pit, and was injured, the . prisoner escaping. It was insisted that, as the pit or excavation, so wrongfully and negligently permitted to remain open and uninclosed, afforded the prisoner the opportunity of throwing the plaintiff into it, as a means of escape, it was, in legal contemplation, the proximate cause of the injifries which the plaintiff receiA-ed. But the court held that the prisoner was clearly an inter^'ening as well as an independent human agency in the infliction of the injuries oi which the plaiatiff complained, and that the town Avas not liable. In that case the pit afforded the opportunity to inflict the injury, but was not an efficient cause of it. SECT. III.] GAGE V. HARVEY. 3G9 In Mcars v. Wilcocks, S East, 1, the plaintiff sued the defendant for slander, which was uttered in a conversation with persons who were not his employers, but was communicated to his master, and attempted to hold him liable for the damage he suffered by reason of his master discharging him, in consequence of the slander, before the expiration of his term of service. And Lord Ellenborough said that the special damage must be the legal and natural consequence of the words spoken, otherwise it did not sustain the declaration; and here it was an illegal consequence, a mere wrongful act of the master for which the defendant was no more answerable than if, in consequence of the words, other persons had afterwards asseml:)led and seized the plaintiff, and thrown him into a horse pond by way of punishment for his supposed trans- gression. And his lordship asked whether any case could be mentioned of an action of this sort sustained by proof only of an injury sustained by the tortious act of a tliird person. Cuff v. Newark & N. Y. R. Co., 35 N. J. L. 31. In Shugart v. Egan, 83 111. 56, the plaintiff's husband, while in a state of intoxication caused by liquors obtained by him from the defendant, insulted or menaced one McGraw, who thereupon stabbed him, inflicting a wound whereof he died shortly afterwards. The court held that the plaintiff was not entitled to recover under a statute which gave a wife "who shall be injured in person, property or means of support" in consequence of the intoxication of any person "a right of action against the person who caused the intoxication, and made such person liable for all damages sustained and for exemplary damages." Mr. Justice Scholfield, for the court, said: "It has also been held that the intervention of the independent act of a third person between the wrong complained of and the injury sustained, which was the direct or immediate cause of the injury, breaks the causal connection; and, consequently, there can, in such case, be no recovery except as against the person whose immediate agency produced the injury. . . . Here, the death not resulting from intoxication or from any disease induced or aggravated by the use of liquor, but solely from the direct and wilful act of McGraw, we have a case clearly within this principle." In the case before us the intervening act produced the injury com- plained of, and was the wrongful act of a third person for which he was legally responsible. The sale and consumption of the liquor may have furnished the opportunity or occasion for the wrongful act of the third person, but was not the proximate cause of the injury. Hence the saloon keeper, who sold the liquor which produced the intoxication, and the sureties on his bond, are not liable for damages. Cuff v. Newark & N. Y. R. Co., 35 N. J. L. 17. The judgment of the circuit court is reversed as to George Sargiano- vich, the keeper of the saloon, and J. Kempner and D. Beffa, the sure- ties on his bond, and is affirmed as to Vincent Gage. 370 ROACH V. KELLY. [CHAP. IV. ROACH V. KELLY. Supreme Court of Pennsylvania, 1899. [Reported 194 Pa. 24.] Dean, J.^ . . . There are many cases where the question of remote or proximate cause is for the jury, but this is not one of them. The facts are undisputed; deceased had an old grudge against Atkinson; when heated by hquor he revived the old quarrel; in gratification of his ill will he also picked a quarrel with Pratt, the father-in-law of the man he hated ; they proceeded some distance to private property and fought; Roach defeated Pratt, then attacked Atkinson; while engaged in this second flagrant breach of the peace the cry of police is raised, and all, both the drunk and sober, fled; Roach, by the concurring cir- cumstances of the slip on the bank and the fall into the open sewer, was killed. Admit that his resentment on account of the old grudge and his quarrelsomeness were prompted by the liquor and resulted in the fight; he received no injury in that consequence of defendant's act; the direct ei^ect of the liquor ended with the fight; in a subsequent attempt, however, to escape arrest foi' a violation of law he met his death; this was an intermediate cause, disconnected from the primary one, for which, under no view of the facts, was defendant responsible. If Roach in his flight had been arrested by the officers, and in a scuffle to escape from them had met his death, it might as well have been argued the proximate cause of his death was the unlawful sale of liquor, yet it is too plain for argument that the resistance to the offi- cers was the proximate and effective intervening cause, while at most the sale of liquor was the very remote cause.^ The statute on which this suit is founded imposes no higher degree of responsibility on the liquor dealer than the common law imposes upon wrongdoers. It declares he "shall be held civilly responsible for any injury to person or property in consequence of such furnishing." The criminal law imposes punishment without regard to the conse- quences; the civil law damages only for the natural and probable con- sequences of the act. It might be plausibly argued that defendant ought to have so far foreseen as the natural and probable consequences of his act, that Roach might have a deadly fall on the highway when going to his home, or that his death might result from being run down by cars while crossing a railroad track, or by falling into water and drowning, or possibly by exciting his quarrelsome disposition his death might have come from a blow inflicted by some insulted antagonist, 1 Part of the opinion is omitted. — Ed. ^ The court here quoted from the following cases: Hoag i\ R. R., 85 Pa. 293; Morrison v. Davis, 20 Pa. 171. — Ed. SECT. III.] CURRIER V. McKEE. 371 but that he should quarrel with Pratt, proceed deliberately through a tunnel to a private lot on the opposite side of a railway, leisurely cast off his clothing, fight with Pratt and beat him, then engage with At- kinson, then, in terror of the law which he had violated, flee from the officers, slip down the steep bank he was striving to climb, fall into an open sewer hole negligently unguarded on a private lot, and thus break his neck, surely this was neither the natural nor probable consequence of giving him drink. The alleged cause is so remote from the injury that the learned judge ought to have said peremptorily that there could be no recovery. The judgment is reversed and judgment is entered for defendant. CURRIER V. McKEE. Supreme Judicial Court of Maine, 1904. {Rejiorted 99 Me. 364.] Powers, J. This is an action under the civil damage act, and comes to the law court on exceptions to the ruling of the presiding justice directing a nonsuit. There was evidence tending to prove that the plaintiff lived with her son. Will A. Currier, aged thirty-four, upon his farm and was de- pendent upon him for her support; that the defendant sold intoxi- cating liquor to the son which caused his intoxication; that while so intoxicated he entered the store of one Boulier who ordered him out of the store; that he went out but turned and tried to come back with the intention of striking at Boulier and having a fight with him; that he did strike at Boulier, who thereupon struck him and broke his jaw, by reason whereof his ability to labor was decreased and the support which he afforded his mother sensibly diminished. The defendant contends that no recovery can be had except for those injuries of which the intoxication is the proximate cause; that the independent act of an intelligent and responsible human being inter- vened and caused the broken jaw from which all damage to the plain- tiff resulted, and that the intoxication was therefore the remote, and not the proximate cause of the injury. R. S. 1883, c. 27, § 49, — now R. S. 1903, c. 29, § 58, — creates a new cause of action unknown to the common law, and so far as is material reads as follows: "Every wife, child, parent, guardian, hus- band, or other person who is injured in person, property, means of support or otherwise, by any intoxicated person, or by reason of the intoxication of any person, has a right of action in his own name against anyone who by selling or giving any intoxicating licjuors, or otherwise, has caused or contributed to the intoxication of such per- 372 CUKKIKR V. i\I( KEE. [CHAP. IV. sons." The statute is aimed at the suppression of a great evil, and while no effort should be made by a forced interpretation to extend its meaning beyond what was fairly intended, it should be liberally con- strued so as to effect the beneficent purpose for which it was enacted. In its terms it is very broad. It is not confined to unlawful sales as was the original act of 1858, c. 33, § 11, R. S. 1871, c. 27, § 32, which was repealed by the public laws of 1872, c. 63, § 4, and the present statute substituted. The giver equally with the seller is made liable for the injurious consequences of his act. It is not necessary that the intoxicating liquor furnished by the person sued should have been the sole cause of the intoxication; it is sufficient if it "contributed" to it in an appreciable degree. A right of recovery is given for injuries produced in two ways, first, "by any intoxicated person," and second, "by reason of the intoxication of any person." When the injury is caused 'by an intoxicated person, it need not be shown that the intoxica- tion caused the injurious act. In such case it is sufficient if while in a state of intoxication, to which liquors furnished by the defendant contributed, such intoxicated person commits the act which results in injury to the "person, property, means of support or otherwise" of the plaintiff. The furnishing by the defendant of the intoxicating liquor must have contributed as a proximate cause to the intoxication, and the act of the intoxicated person must have been the cause of the injury, but it is not necessary that the intoxication should have been the proximate cause of injury or of the act which caused it. Neu v. McKechnie et al, 95 N. Y. 632; Brockway v. Patterson, 72 Mich. 122. The legislature seems to have regarded intoxicating liquor as dangerous to society, and to have intended that whoever by furnishing liquor contributed to the intoxication of any person should be held respon- sible for injuries inflicted by him while in that condition, without plac- ing upon the sufferer the burden of showing that the injury was due to the intoxication. This, however, is but to show the scope of the statute and that it should be construed in no narrow or ilHberal spirit. The plaintiff claims that she was injured in her means of support not by an intoxi- cated person, but "by reason of the intoxication" of her son. If this provision is to be regarded as calling for the same sequence and connection of causation required by the maxim of the common law which the defendant invokes, that the law looks to the proximate and not to the remote cause, the oft embarrassing question remains of what is a proximate and effective although not the immediate cause of the injury. Giving to the defendant the full benefit of the application of the principle which he claims, still the statute does not require that the furnishing of the liquor b\' the defendant should be the proximate cause of the plaintiff's injury, but only that it should have contributed to her son's intoxication and that the intoxication should have been the proximate cause of the injury. It is urged SECT. III.] CURRIER V. McKEE. 37."j that the act of an intelHgent and responsible human being, the blow struck by Boulier, intervened between the intoxication of the son and the resulting injury to the plaintiff. Upon the evidence, however, the jury might have found that the illegal sales of intoxicating liquor by the defendant to the plaintiff's son caused his intoxication, and that his intoxication caused him to make an assault upon Boulier, and that the blow of the latter was solely in self defense when struck at by the intoxicated son. If so, the intervention of Boulier was rightful. It is the wrongful or negligent act of a third party intervening which breaks the chain of causation and relieves the original wrongdoer of the consequences of his wrongful act; but if in the right he is not re- sponsible and the party injured must seek reparation from him whose wrongful act was the first in the order of events causing the injury. A reference to some of the authorities will show that this principle has been frequently recognized ever since the squib case, Scott r. Shepard, 3 Wilson, 403, and also the liberal manner in which statutes, giving a right of reco^•er^\' for injuries to person, property, or means of support "in consequence of" or "by reason of the intoxication of any person," have been construed. It is a principle of law, applicable to the doctrine of proximate cause, that "if the original act was wrongful and would naturally accord- ing to the ordinary course of events prove injurious to some other person or persons, and does actually result in injury through the in- tervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which are innocent. But if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission b\- another, the injury shall be imputed to the last wrong as a proximate cause, and not to that which is more remote." Cooley on Torts, page 76. The plaintiff's son was struck by a railroad train while walking upon the track in an intoxicated condition. It was held that, the railroad company not being in fault, the intoxication might be found to be the proximate cause of the injury. "Men are held lial)le every day in tort for the natural and proximate results of their wrongs, although the particular result could not be foreseen as necessary at the time of \\\e act." McNary v. Blackburn, 180 Mass. 141. In Gage v. Harvey, 66 Ark. 68, 74 Am. St. R. 70, an intoxicated person was robbed of his mone\', and the person selling the liquor was held not liable. " The intervening act produced the injury complained of, and was the wrongful act of a third person for which he was legally responsible." In Schmidt v. Mitchell, 84 111. 195, it was held that if a person in consequence of intoxication should get into a difficulty resulting in his being shot in the thigh, the party selling the li(}uor might be responsible for the direct consequences of the injury received, but that if, after becoming sober, his disregard of his physician's instruc- 374 CURRIER V. McKEE. [CHAP. IV. tions should necessitate the amputation of his leg, the liquor seller would not he responsible for the loss of life. There the wound was law- fully inflicted by one P>eidenback in defense of his house. Shugart V. Egan, 83 111. 56, is sometimes cited in support of a contrary doc- trine. There, however, the plaintiff's husband, in consequence of mere words used by him while intoxicated, was assaulted and slain by one McGraw. It is evident that mere words would not justify the assault and that McGraw was a wrongdoer. The same court, com- menting upon Shugart v. Egan, in a later case, said : " It was there said to be the common experience of mankind that the condition of one intoxicated in\'ited protection against violence rather than attack, and that it was not a natural and probable result of intoxication that the person intoxicated should come to his death by the wilful criminal act of a third party. ... It was not the intention that the intoxicat- ing liquor alone, of itself exclusive of other agency, should do the whole injury. That would fall quite short of the measure of remedy intended to be given. The statute was designed for a practical end, to give a substantial remedy, and should be allowed to have effect according to its natural and obvious meaning." Schroden v. Crawford, 94 111. 357., Intoxication was held to be the proximate cause of death when a per- son was drowned in l)athing. Meyer v. Butterbrodt, 146 111. 131. The party causing intoxication cannot escape liability because he may not reasonably have foreseen the consequences. Roth r. Eppy, SO 111. 283, a case of insanity caused by habitual intoxication. Plain- tiff's husband while intoxicated made an assault upon one Morceau by whom he was killed. Held that defendant would be liable on ac- count of the sale and intoxication resulting from such sale if such in- toxication was the effective cause of the injury. Baker & Reddick v. Summers, 201 111. 52. The leg of plaintiff's husband was broken by one Free, in a drunken scuffle. Both the husband and Free were intoxicated at the time by liquor sold by the defendant. In affirming a verdict for the plaintiff, the court said: "If the injury was occasioned by reason of the in- toxication of Thomas or Free, and such intoxication was produced, in whole or in part, by the liquors sold by the defendant Dansby, then the case would fall within the terms of the statute, and a recovery could be had if the plaintiff by reason thereof was injured in her means of support." Thomas v. Dansby, 74 Mich. 398. A conviction of drunken- ness has been held a proximate result of intoxication such as will render the one furnishing the liquor liable to the wife for injuries resulting therefrom. Lucher v. Liske, 111 Mich. 683. The c|uestion of proximate cause is for the jury under appropriate instructions of law. One is not bound to anticipate what is merely possible, nor on the other hand is he liable for such consequences only as usually follow. It is sufficient if the result ought to have been apprehended accoiding to the usual experience of mankind. SECT. III.] MINOT V. DOHERTY. 375 The defendant need not have intended that the plaintiff's son should make an assault upon BouHer or even have expected it or the injury which followed. Enough if according to human experience it was to be apprehended that such results were likely to happen from the in- toxication. The legislature deals with intoxicating liquor upon the assumption that it is the enemy of society, that intoxication weakens the will, disturbs the judgment, saps the moral forces, and is the fruit- ful source of vice and crime attended by personal injury and loss. It is natural as well as lawful that one assaulted should use reasonable force to repel the assailant even to his personal injury. It is for the jury to say who is the assailant, and whether, under the circum- stances, the force used was reasonable and appropriate. It is also for them to determine whether one, who lets loose such a dangerous agent as intoxicating liquor, is not bound to apprehend that the in- toxication thereby produced is likely to cause unjustifiable assaults and consequent injury to the assailant. In the case at bar there was evidence tending to show that the in- toxicating liquor sold by the defendant caused the intoxication of the plaintiff's son, that by reason of such intoxication he made an assault upon Boulier, and that the latter acting in self defense struck the blow which diminished the son's capacity to labor, resulting in injury to the plaintiff's means of support. If these issues are found in the affirmative, then, under the broad and sweeping provisions of the statute we are considering, we think it may be said that the plaintiff was injured in her means of support "by reason of the intoxication" of her son. The court cannot say that the intoxication would not then be the "one efficient procuring cause without which the injury would not have happened." Oilman v. E. & N. A. Ry. Co., 60 Maine, 235. The case should have been submitted to the jury. Exceptions sustained. MINOT V. DOHERTY. Supreme Judicial Court of Massachusetts, 1909. [Reported 203 Mass. 37.] Tort under R. L. c. 100, § 58, by a married woman against the proprietor of a bar room for personal injuries, resulting in an alleged miscarriage, from an assault upon the plaintiff by her husband in consequence of intoxication caused by liquor sold to him by the de- fendant. Writ dated November 8, 1905. In the Superior Court the case was tried before Stevens, J. At the close of the evidence the defendant asked the judge to give certain instructions to the jury, among which were the following: 376 MINOT V. DOHERTY. [CHAP. IV. "8. There is no evidence that the alleged miscarriage was suf- fered in consequence of the intoxication of the plaintiff's husband caused in whole or in part by liquor sold or -given him by the defend- ant." "11. The jury cannot consider the plaintiff's pain in labor at the time of the alleged miscarriage as an element of damage, as there is no evidence that such pain was more aggravated than would ultimately and naturally result from her pregnancy." The judge refused to give these instructions, and submitted the case to the jury with instructions which are described in the opinion. The jury returned a verdict for the plaintiff in the sum of $1,500; and the defendant alleged exceptions to the judge's refusal to give the eighth and the eleventh instructions requested by the defendant, and to " that portion of the charge relating to the defendant's liability, if the plaintiff's husband was a confirmed and habitual drunkard and his confirmed habits were continued in whole or in part by liquor supplied by the defendant." LoRiNG, J. 1. The defendant urges in support of his exception to the refusal of the judge to give the eighth ruling asked for that "the defendant would not be liable if an habitual drunkard, to the forma- tion of whose habits of intoxication the defendant had in whole or in part contributed, committed an assault while perfectly sober." That is true. That was decided to be law in Bryant v. Tidgewell, 133 Mass. 86. But it was laid down in that case that if a man who is habitually drunk for a specified period assaults his wife at that time, a defendant who by selling him liquor had caused that drunkenness in whole or in part would be liable if his intoxication at that time was the cause of the assault. That case established the distinction between causing a husband to form habits of drunkenness by selling liquor to him and causing him to be habitually drunk during a specified period by selling liquor to him. The defendant has also argued that there was no e^'idence that the husband was in fact intoxicated at the time of the assault. But we are of opinion that from the evidence set forth in the bill of exceptions the jury were warranted in finding that he was intoxicated at that time. Moreover the bill of exceptions does not purport to set forth all the e\ndence. Further, although the whole charge is not given, it affirmatively appears that the presiding judge instructed the jury that they must find that fact. He told them that he had been asked to give them this instruction: "The burden is upon the plaintiff to show that the intoxication of the husband at the time it is alleged that he struck and injured her was caused in whole or in part by liquors sold or given him by the defendant." As to this he told the jury: " I have already given you that and I repeat it." 2. In explaining to the jury that the defendant would not be liable for habits of intoxication formed by the husband before any liquor SECT. IV.] BLAKE V. HEAD. 377 was sold to him by the defendant, the judge said that he would be liable if " those habits were continued afterwards and were continued afterwards on account of the acts of the defendant in selling him liquor in whole or in part." If this had stood alone the charge would have been erroneous for the same reason that the charge in Bryant v. Tidge- well, 133 Mass. 86, was held to be wrong. But this was an inaccurate statement used by the judge in pointing out that the defendant was not liable if the husband had become addicted to drunkenness before any liquor was sold to him by the defendant. When the judge later on in his charge instructed the jury as to what they must find to bring in a verdict for the plaintiff, this inaccuracy was cured. They were then told in substance that they must find that the assault was caused by his being in a state of habitual drunkenness at the time, and that this state of habitual drunkenness had been caused in whole or in part by liquor sold by the defendant. 3. The eleventh request could not be given. The pain in labor of a woman, who by reason of an assault and battery upon her brings forth a dead child when she is seven months gone in pregnancy, may be found to be greater than the pain in labor of a woman "who remem- bereth no more her anguish for joy that a man is born into the world." Exceptions overruled. SECTION IV. Workmen's Compensation Acts. BLAKE V. HEAD. CouET OF Appeal, 1912. [Reported 5B.W. C. C. 303.] Cozens-Hardy, M. R. The facts were that the boy went into the service of Head as an errand boy and was told by his father that Head had been in an asylum, and that he was to be a good boy and not make his employer annoyed. When the boy was doing some work under the direction of Mrs. Head, he was attacked by Head with a chopper and was severely injured, sustaining a fractured skull. It was a lament- able affair. Head must be taken to be a sane person, as he had been discharged shortly before from an asylum. It was said the boy could claim compensation because this accident arose out of and in the course of his employment. Personally, I do not think this was an "accident" at all. I think it was an intentional felonious act, and the injury cer- tainly did not arise out of the employment. If the applicant had been an attendant in a lunatic asylum, and had been attacked by one of the 378 BUTLER V. BURTON-ON-TRENT UNION. [cHAP. IV, patients, there would have been very good ground for saying that there was an accident arising out of his employment as being a risk inci- dental to the employment. But that is not the case here. I cannot think why the unfortunate boy did not bring an action for assault. I do not think it was an accident, or that the injury arose out of and in the course of employment. Fletcher Moulton, L. J. I am extremely sorry for the boy; but I agree that the appeal must be dismissed. Buckley, L. J. A felonious act done by the employer cannot by any possible straining of language be called an accident arising out of and in the course of the emplojTnent. I agree in thinking this appeal fails. Appeal- dismissed. BUTLER V. BURTON-ON-TRENT UNION. Court of Appeal, 1912. [Reported 5 B. W. C. C. 355.] Cozens-Hardy, M. R. This is an appeal from Judge Lindley, who has given us an elaborate judgment. The facts are plain and not in dispute. The deceased man was master of a workliouse. He was on duty continuously until ten o'clock at night, but he hg-d no active duties at thp time in question. It was a summer evening. He was sitting smoking at the top of some stairs leading up to that part of the workhouse where liis own private rooms were. It is not sug- gested that there was anything peculiar in these stairs. The labor- master happened to pass that way, and he was having a talk with him about workhouse matters. Unfortunately, the master of the work- house had tubercular trouble. A fit of coughing came on, and made him giddy. He turned round, and fell down the steps, and it was found that one of his ribs was broken, and he died of pneumonia some days after. The judge has found this was an accident in the course of the employment. The then question is. Did it arise out of the employment? Mr. Parfitt says it "arose out of" because it took place on premises where he was in fact engaged. If that view is right, it makes " in the course of" the sole test. It has been decided that an accident "arising out of" means some risk reasonably incidental to the employment; that the man is more exposed to the particular risk than other persons of the community. Mr. Parfitt admits that if the master had been engaged in his office and this fit of coughing liad come on, the accident Avould he in no sense one arising out of the employment. There is nothing peculiar in the employment which renders the risk greater than that to wliich ordinary persons are exposed. It is not as though the task was likely to render the cough more frequent and more dan- SECT. IV.] EVEKITT V. EASTAFF & CO. 379 gerous. I cannot imagine a quieter occupation than this man had. In these circumstances, I think we should be extending the pro\asions of this Act beyond all reason, beyond all principle, beyond all authority, if we held that this accident arose out of the employment. Fletcher Moulton, L. J., agreed. Buckley, L. J. The place was not a dangerous place; the man was neither more nor less liable to fall because he was a workliouse master. These considerations are sufficient. The accident did not arise out of the employment in the sense that it was due to the nature of the em- ployment, or to anything to which the employment required him to expose himself. Appeal allowed. EVERITT V. EASTAFF & CO. Court of Appeal, 1913. [Reported 6 B. W. C. C. 184.] Cozens-Hardt, M. R. This case has been most strenuously argued by Mr. Lort-Williams on behalf of the dependents of the dead man. He certainly has said all that possibly could be said for his clients, but, nevertheless, I cannot bring myself to agree with his contention, for I do not think there is any substance in the appeal. The deceased man was a carter, and the facts as found by the learned judge were in sub- stance these: The man was employed on the day of the accident to take a load of sand in his cart from the Midland Railway depot — which we are told is near the Midland station at Luton — to a place in the Selbourne Road, some little distance away. It was part of his duty after he had got rid of his load to take his horse and cart back to the stables at twelve o'clock, which was the men's dinner hour. He had been with his load to Selbourne Road, but instead of going back to the stables by the way he had come, which was the nearest and reasonable and natural route for him to take, he went where he had no business to go, by a route which was a little way farther round, but which took him back to the stables, passing by the Great Northern Railway station. By this route he passed a public-house called the "Fox Inn," where he stopped. We do not know exactly wiien he got there. One witness said he saw the cart standing there at 11.30, and another that he noticed the cart there when he passed at 11.40; the publican said that about twelve o'clock the man came into the bar and had one glass of ale, and that he noticed that the horse and cart were standing out- side on the draw-up. It was argued by Mr. Lort-Williams that we must not infer from this evidence that the man was there drinking at the public-house all the time. And so far, I agree with Inm. But 380 EVEKITT V. EASTAFF & CO. [CIIAP. IV. • the man seems, however, to have been loitering over his work all that day, for he did only two instead of four journeys that morning, accord- ing to his day-sheet. However that may be, we know this, that when he came out of the public-house, after getting his drink, he got up on to the cart and something startled the horse; he began to trot, and then ran away towards his stable. The man, who had the reins in his hands, was thrown out of the cart and killed.. The judge found that the route which tlie man took back from Selbourne Road was not the nearest way the man could take to get back to the stables, and was not the ordinary or usual route there. And he held " that the accident did not arise out of and in the course of the man's employment. That that employment was to cart as alleged; that the deceased went to the Fox Inn for his own purposes; that the accident happened on a road a few yards from the Fox Inn, where his employment did not reasonably or naturally take him with his cart, and upon the e\ndence I so decide; nor do I think that the getting into the cart again after the Fox Inn visit continued his employment (as Mr. Lort-Williams contended), so as to make the respondents hable." Now, the very ingenious argument addressed to us on behalf of the appellant was, in effect, this: The deceased man was a carter, and therefore his duty was to take care of his master's horse and cart. However long, therefore, he may have been getting back, if he deviated from the ordinary route on an excursion for his own purpose — if , for example, to use the illustration put by Buckley, L. J., to Mr. Lort- Williams during the argument, the man had gone off to see a football niatch — so long as he took the horse and cart with him, any accident which happened to him while dri\4ng the horse back to the yard would be an accident arising out of and in the course of his employment. It was argued that taking the horse back to the yard was part of his duty, and the accident happened in the performance of that duty, and' therefore the employers were liable. I cannot in the least accept that argument as sound. I cannot think that a man is within the pro- tection of the Act when making an excursion solely for his own pleas- ure. I think it is immaterial to consider whether he remained at the Fox Inn for twenty minutes or half an hour. It did not matter in the least. The man for his own purpose had chosen to take a route home which was unauthorized, and that prevented the accident from arising out of and in the course of the man's employment witliin the meaning of the Act. Buckley and Hamilton, L. JJ., concurred. Appeal dismissed. SECT. IV.] M'LAUCHLAN V. ANDEKSON. 381 M'LAUCHLAN v. ANDERSON. Court of Session, Scotland, 1911. [Reported 4 B. W. C. C. 376.] The facts in this case are as follows: The deceased was engaged as a laborer in connection with loading at various quarries wagons which were afterwards hauled by a traction engine over the roads of Banffshire to Portsoy. The deceased's main duties were to help at the loading and unloading and to accompany the wagons on their journeys. On the occasion of his death he was sitting on one of the wagons which was being hauled by the engine in the prosecution of one of the intermediate journeys from one quarry to another. While sitting on the wagon he dropped his pipe and got down to recover it; in so doing he stumbled and fell, and was run over by the wagon. The arbitrator found as a fact that "the deceased Peter M'Lauchlan attempted to get down from the wagon, not for any object connected with his employment with the respondent, but for his own purpose," and proceeding upon that found in law that the dependent was not entitled to compensation in respect that the accident was not an accident arising out of his emplo^Tiient in the sense of the Workman's Compensation Act, 1906, s. 1 (1). The Lord President (after stating the facts as above). The ques- tion before your Lordships is whether the finding in law of the arbitrator can be supported, in \new of the various facts the arbitrator found to be proved, wliich I have detailed. I am of opinion that the finding can- not be supported. I think the fallacy that has led the learned arbitra- tor astray is cormected witli the true meaning of the words "his own purpose." In one sense anything a man does in connection with his own body is done for his own purpose — eating and drinking are illus- trations, but these are none the less things a workman is perfectly entitled to do in the course of his employment. The Lord Chancellor (Lord Loreburn) in the course of his opinion in the case of Moore v. Manchester Liners, Limited, [1910] A. C. 498, at p. 500, said this: " I think an accident befalls a ' man in the course ' of his employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing." Now this man's operation of getting down from the wagon to recover his pipe seems to me to satisfy all those conditions. Taking tliem in tlieir in- verse order, he had a right to be at the place, riding on or walking be- side the wagons; he was within the time during which he was employed, because the accident happened during the actual period of transit; and he was doing a thing which a man while working may reasonably 382 PLUMB V. (JOBDEN FLOUK MILLS CO., LTD. [CHAP. IV. do — a workman of his sort may reasonably smoke, he may reasonably drop his pipe, and he may reasonably pick it up again. I think this case is in thorough contrast to the cases which were cited to your Lordships of the engine-driver and the ticket-collector. Each of those men was doing something which was not incidental to his ordinary work, but took him away from his work for a purpose purely his own — the engine-driver went to fetch a book, and the ticket- collector to talk to a lady passenger. A good deal has been said about the difference between an accident arising "out of" and one arising "in the course of" the employment No doubt in the earlier cases under the Act there was a certain amount of difficulty in the distinction, but my view on the matter is quite determined. I think it is impossible to have an accident arising out of, which is not also in the course of the employment, but the converse of this is quite possible, as, for instance, if a workman were shot by a lunatic, or struck by lightning, while at the moment engaged in his work. In a great many cases, however, the two phrases do not admit of separate consideration, and the present is one of those cases. If this accident took place in the course of the workman's employment, it also indubitably arose out of that employment; if not, not. On the whole matter I propose that we should recall the finding of the arbitra- tor and find the widow entitled to compensation. . The other Lords concurred. Appeal allowed. PLUMB v.. COBDEN FLOUR MILLS CO., LTD. House of Lords, 1913. [Reported [1914] A. C. 62.] Viscount Haldane, L. C. My Lords, in this case I have had the advantage of reading the judgment prepared by my noble and learned friend Lord Dunedin, and I entirely concur in it. Lord Kinnear desires me to express his concurrence also in the judgment of my noble and learned friend. Lord Dunedin. My Lords, I have not the slightest doubt as to the soundness of the judgment appealed from. As, hoVever, we had the benefit of a very able argument and a copious citation of authorities, it may be of use to formulate the conclusions at which I have arrived. The facts of the case are simple. The appellant was a foreman worker in the employment of the respondents, and his duties on the day on which he was injured consisted in stacking bundles of sacks in a room in the responrlents' premises. The work was done by hand. In the room in which this was being done there ran along. the ceiling a shaft II SECT. IV.] PLUMB V. COBDEN FLOUE MILLS CO., LTD. 383 which transmitted power to machines in other rooms, but there were no pulleys on the shaft in this room, and it was not used in connection with any machine in this room. The stack had arrived at the height of about seven feet and the bundles could no longer be thrown up from the bottom. The appellant, who was on the top of the stack, then impro\ased a method of getting up the sacks. He put a rope round the revolving shafting, attached one end to the bundle, and sufficient tension being put on the other end of the rope to ensure friction, the sack was drawn up as by a crane. A bundle of sacks was drawn too far and stuck between the shafting and the ceiling. The appellant, to free the bundle, cut the rope. The bundle fell, and falling on the bundle on which the appellant was standing caused him to lose his balance. In his effort to recover equilibrium one arm got entangled with the rope which was round the shafting, he was pulled over the shafting, and severely injured. The question for decision is. Did the accident arise out of his em- ployment? The Court of Appeal held that it did not, and I agree with them. It is well, I think, in considering the cases, which are numerous, to keep steadily in mind that the question to be an.swered is always the question arising upon the very words of the statute. It is often useful in stri\ing to test the fact of a particular case to express the test in various phrases. But such phrases are merely aids to solving the original question, and must not be allowed to dislodge the original words. Most of the erroneous arguments which are put before the courts in -this branch of the law will be found to depend on disregard- ing this salutary rule. A test embodied in a certain phrase is put for- ward, and only put forward, by a judge in considering the facts of the case before him. That phrase is seized on and treated as if it afforded a conclusive test for all circumstances, with the result that a certain conclusion is plausibly represented as resting upon authority, which would have little chance of being accepted if tried by the words of the statute itself. Under this reservation, I propose shortly to examine some of the tests which have been found useful in the various cases which have occurred where the point was whether or not the accident arose out of the employment. The first and most useful is contained in the expression "scope" or "sphere of employment." The expression was used in an early case, the case of Whitehead v. Reader, [1901] 2 K. B. 48, by Collins, L. J., who pointed out that the question of whether a servant had violated an order was not conclusive of whether an accident so caused did or did not arise out of the employment and put as the test. Did the order which was disobeyed limit the sphere of the employment, or was it merely a direction not to do certain things, or to do them in a certain way within the sphere of the employment? 384 PLUMB V. COBDEN FLOUR MILLS CO., LTD. [CHAP. IV. In the case of Conway v. Pumpherston Oil Co., 1911 S. C. 660, in the Court of Session, I adopted the phrase of ColHns, L. J., and pointed out that there were two sorts of ways of frequent occurrence in which a workman might go outside the sphere of his employment — the first, when he did work which he was not engaged to perform, and the second, when he went into a territory with which he had nothing to do. This case was approved and followed by the Court of Appeal in Harding v. Brynddu Colliery Co., [1911] 2 K. B. 747. The expression has been used in many other cases which it would be tedious and un- necessary to cite. I am of opinion that this test is both sound and convenient, but it is not exhaustive, and it is not the most convenient for every state- ment of facts. Taken as it is, there may, and often will, be circum- stances in which the application may be difficult and opinions may differ. I pause here to notice an ingenious argument proposed by Mr. Davenport, founded on the cases I have cited. Founding on the cases of Conway, [1901] 2 K. B. 48, and Harding, [1911] 2 K. B. 747, he said : If this man had been told not to touch this shaft he would have received compensation, for he was doing his master's work, and it would have been merely disobedience. Why should he be worse off because he was told nothing about the shaft? The fallacy of this consists in not adverting to the fact that there are prohibitions which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment. A transgression of a pro- hibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent recovery of compensation. A transgression of the former class carries with it the result that the man has gone outside the sphere. In the case of Barnes r. Nunnery Colliery Co., (1910) 4 B. W. C. C. 43; [1912]; A. C. 44, Lord Moulton put it thus: "The boy was only guilty of disobedience. Was this out of the scope of his emplojonent, or only a piece of misconduct in his employment?" Though Lord Moulton arrived at a different result on the facts from that of the majority of the Court of Appeal, and that of this House, yet no fault is to be found with the question as put, and in this House Lord Lore- burn, L. C, said the same thing in other words: "Nor can you deny him compensation on the ground only that he was injured through breaking rules. But if the thing he does imprudently or disobediently is different in kind from anything he was required or expected to do and also is put outside the range of his service by a genuine pro- hibition, then I should say that the accidental injury did not arise out of his employment." The Lord Chancellor there put the test cumulatively, because that fitted the facts of the case in which boys in a mine rode in tubs, a thing they were not employed to do, and I. which they had been ex-pressly told not to do. But I imagine the propo- SECT. IV.] PLUMB V. COBDEN FLOUR MILLS CO., LTD. 385 sition is equally true if he had expressed it disjunctively and used the word "or" instead of "also." In the eases in which there is no prohibition to deal with, the sphere must be determined upon a general view of the nature of the employ- ment and its duties. If the workman was doing those duties he was within, if not he was without, or, to use my own words in the case of Kerr v. Wilham Baird & Co., 1911 S. C. 701, an accident does not arise "out of the employment" if at the time the workman is arrogat- ing to himself duties which he was neither engaged nor entitled to perform. As I have already said, however, the question of within or without the sphere is not the only convenient test. There are others which are more directly useful to certain classes of circumstances. One of these has been frequently phrased interrogatively. Was the risk one reasonably incidental to the employment? And the question may be further amplified according as we consider what the workman must prove to show that a risk was an employment risk, or what the employer must prove to show it was not an employment risk. As regards the first branch, I think the point is very accurately expressed by the Master of the Rolls in the case of Craske v. Wigan, [1909] 2 K. B. 635, where he says: " It is not enough for the applicant to sa^' 'The accident would not have happened if I had not been engaged in that employment or if I had not been in that particular place.' He must go further and must say, 'The accident arose because of something I was doing in the course of my employment or because I was exposed by the nature of my employment to some peculiar danger.'" As regards the second branch, a risk is not incidental to the em- ployment when either it is not due to the nature of the employment or when it is an added peril due to the conduct of the servant himself. Illustrations of the first proposition will be found in all the cases where the risk has been found to be a risk common to all mankind, and not accentuated by the incidents of the employment. In application to facts the di^■i(ling line is sometimes very nearly approached, but I think that in all the cases the principle to be applied has been rightly stated. The cases themselves are too numerous to cite, but I may mention as illustrations the two lightning cases of Kelly v. Kerry County Council, (1908) 42 I. L. T. R. 23, and Andrew tJ. Failsworth Industrial Society, [1904] 2 K. B. 32, where on the facts the stroke ) of lightning was held, in the Irish case, to be a common risk of all mankind; in the English case, a risk to which, by the conditions of employment, the workman was specially exposed. Both these cases, in my humble judgment, were rightly decided. An illustration of the second proposition will be found in the case already cited of Barnes v. Nunnery Colliery Co., [1912] A. C. 44, at p. 50, where Lord Atkinson said: "The unfortunate deceased in this 38G PLUMB V. COBDEN FLOUR MILLS CO., LTD. [CHAP. IV. case lost his life through the new and added peril to which by his own conduct he exposed himself, not through any peril which his contract of ser\'ice, directly or indirectly, involved or at all obliged him to en- counter." Lord Atkinson added the words, " It was not, therefore, reasonably incidental to his employment. That is the crucial test." In the case of Watkins r. Guest, Keen & Nettlefolds, 5 B. W. C. C. 307, Lord Moulton criticized this sentence as cutting out the sub- section as to serious and wilful misconduct. With great deference to my noble and learned friend, I think he was forgetting that Lord Atkinson was only applying a test, and not substituting it for the words of the Act. I cannot see that the serious and wilful misconduct section really introduces any difficulty. Reverting to the words of the Act, you have first to show that the accident arises out of the employment. Then in the older Act came the rider that even when that was so the workman still could not recover if the accident was due to the serious and wilful misconduct of the workman himself — a rider limited in the later Act to cases where the injury did not result in death or serious and permanent disablement. But the very fact that it is a rider postulates that the accident is of the class which arises out of the employment. A man may commit such a piece of serious and wilful misconduct as will make what he has done not within the sphere of his employment. But if death ensues and his dependents fail to get compensation it will not be because he was guilty of serious and wilful misconduct, but because the thing done, irrespective of misconduct, was a thing outside the scope of his employment. I have forborne to comment on the particular application to the facts of each case of the principles laid down in them. But, in view of what has been said, I think I must add that in my view the judgment of Buckley, L. J., who dissented in Watkins' case, 5 B. W. C. C. 307, was more in accord- ance with what had been laid down in this House in the case of Barnes v. Nunnery Colliery Co., [1912] A. C. 44, than the judgment of the majority. Tried by either of the two tests I have examined, the appellant in this case seems to me equally to fail. But he does fail, not because he was acting outside the sphere of his employment, nor because by his conduct he brought on himself a new and added peril, but because he has failed to show any circumstances which could justify a finding that the accident to him arose "out of his employment." Lord Atkinson. My Lords, I concur. Order of the Court of Appeal affirmed and appeal dismissed. SECT. IV.] TRIM JOINT DISTRICT SCHOOL BOARD V. KELLY. 387 TRIM JOINT DISTRICT SCHOOL BOARD MANAGEMENT V. KELLY. House of Lords, 1914. [Reported 30 Times L. R. 453.] Appeal, from the decision of the Court of Appeal in Ireland. The respondent claimed compensation as sole dependent for the death of her son. The son was employed by the appellants as an assistant master in the Trim District School, which was established as a school for training children of the Meath and other union workhouses in industrial pursuits. It was his duty to superintend the boys in school and in the playground. On February 12, 1912, the boys, who were angry with the master because he had prevented them from playing hockey in the school yard and because he had caught one of them stealing, planned an attack on him. They collected in a shed attached to the school, armed with hockey sticks, sweeping brushes, and scrubs — the last weapon consisting of a heavy block of wood attached to a brush-handle. The master came down from the school and walked along the shed. As he turned to come back one of the boys struck him on the head with a scrub and another struck him with a sweeping brush, inflicting such severe injuries that he died on the same day. The County Court Judge held that the assault was an accident arising out of and in the course of the employment of the master, and that the accident caused his death. He therefore made an award in favor of the respondent. The Court of Appeal (the Lord Chancellor of Ireland, Lord Justice Holmes, and Lord Justice Cherry) affirmed the decision of the County Court Judge. Lord Haldane, L. C, said that the appeal raised a question of considerable importance as to the interpretation of the expression "Accident arising out of and in the course of the employment" in the Workmen's Compensation act, 1906. The circumstances in which the question had arisen were shortly as follows. The respondent was the mother of one John Kelly, who was an assistant teacher in the indus- trial school at Trim, and whose death was caused by injury rccciAcd by him while superintending the scholars under his charge. It was not in dispute that the respondent was partly dependent on her son, or that if she was entitled to compensation for his death the amount awarded, £100, was a proper amount. The proceedings out of which the appeal arose were taken under the Act referred to, and assiuned the form of an application for arbitration, which was heard by the County Court Judge of the county of Meath. The deceased John Kelly, who was employed by the appellants, was 388 TRIM JOINT DISTRICT SCHOOL BOARD V. KELLY, [CHAP. IV. on February 12, 1912, superintending the boys in the school at exercise in the school yard when he was assaulted by several of them, and was struck with heavy wooden mallets. He died as the result of his in- juries. The assault was premeditated and the outcome of a con- spiracy among some of the boys to injure Kelly, who had punished or threatened to punish them, and who on the occasion in question was remonstrating with them. After referring to the findings of the County Court Judge, the Lord Chancellor said that he wished before alluding to the authorities on the point to look at the question as if it were a new one. It seemed to him important to bear in mind that " accident " was a word the mean- ing of which might vary according as the context varied. In criminal jurisprudence crime and accident were sharply di\'ided by the presence or absence of mens rea. But in contract such as those of marine insur- ance and of carriage by sea, that was not so. In such cases the maxim In jure non remota causa sed proxima spccfatur was applied. He need only refer to what was laid down by Lord Herschell and Lord Bramwell, when overruling the notion that a peril or an accident in such cases was what must happen without the fault of anybody, in Wilson v. The Owners of the Xantho (3 The Times L. R. 766; 12 App. Cas. 503). It was therefore necessary, in endeavoring to arrive at what was meant by "accident," to consider the context in which the word was introduced. The scope and purpose of that context might make the whole difference. After alluding to the Workmen's Compensation Act, 1906, and ob- serving that its principle was to impose on the employer a general liability to pay compensation in case of personal injury by accident arising out of and in the course of the emplo^Tnent when caused to a workman, he said that, if he had to consider the principle of the statute as res intrgra, he would be of opinion that the principle was one more akin to insurance at the expense of the employer of the workman against accidents arising out of and in the course of his emplo\Tnent, than to the imposition on the employer of liability for anj'thing for which he might reasonably be made answerable on the ground that he ought to have foreseen and prevented it. He thought that the funda- mental conception was that of insurance in the true sense. And if so it appeared to him to follow that in giving a meaning to "accident" in its context in such a scheme one would look naturally to the proxima causa, of which Lord Herschell and Lord Bramwell spoke in connec- tion with marine insurance, the kind of event which was unlocked for and sudden, and caused personal injury, and was limited only by this, that it must arise out of and in the course of the employment. Behind this event it appeared to him that the purpose of the statute rendered it irrelevant to search for explanations or remoter causes, pro\nded the circumstances brought it within the definition. SECT. IV.] TRIM JOINT DISTRICT SCHOOL BOARD V. KELLY. 389 No doubt the analogy of the insurance cases must not, as Lord Lindley pointed out in his judgment in Fenton v. Thorley, [1903] A. C 443, be apphed so as to exclude from the cause of injury the acci- dent that really caused it merely because an intermediate condition of the injury — in that case a rupture arising from an effort voluntarily made to move a defective machine — - had intervened. If, so far as the workinan was concerned, unexpected misfortune happened and injury was caused, he was to be indemnified. The important limitation which the statute seemed to him to impose in the interest of the em- ployer, who could not escape from being a statutory insurer, was that the risk should have arisen out of and in the course of the employ- ment. It was, however, argued for the appellants that the definition of what accident meant in the x-Vct was determined differently by the judgments in this House in the case of Fenton v. Thorley (supra), above referred to. But the House was not there considering an in- jury unexpected by the workman, but caused by the intentional act of another person. Nor did he think that the expressions used in the judgments excluded such a case from the definition actuallv' given of accident. After saying that the element of haphazard was not neces- sarily involved in the word "accidental," Lord Macnaghten defined "accident" as used in the Act "in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed." He thought that the context showed that in using the word "designed" he was referring to designed by the sufferer. Nor did the judgment of Lord Lindley, when closely considered, appear to him to support the argument for the appel- lants. His Lordship then considered in detail the judgment of Lord Lipdley and referred to subsection 2(h) of section 1 of the Act, which he said confirmed the view that "accident" was used in that section as in- cluding a mishap unexpected l)y the workman, irrespective of whether or not it was brought about by the wilful act of someone else. In his opinion, the language of the judgments in Fenton v. Thorley, so far from being authority which supported the argument addressed to their Lordships from the Bar for the appellants, really assisted the conten- tion of the respondent. For that language laid stress on the wide- reaching scope of the statute in question. It showed how that scope extended the liability it embraced beyond liability for negligence, and covered a field akin to statutory insurance against injury to the work- man arising out of and in the course of his employment, proAided that that injury was something not expected or designed l)y the workman himself. He thought that this conclusion as to what the Legislature intended by its language was strengthened by section 8, which placed disablement from certain industrial diseases on the same footing as the happening of an accident. This provision seemed to show that what 390 TRIM JOINT DISTRICT SCHOOL BOARD V. KELLY. [CHAP. IV. the legislature had in view as a general object to be attained was the compensation of the workman who suffered misfortune. If the object of this statute were as wide as he gathered from the study of its language, its construction must, as it appeared to him, be that "accident" included any injury which was not expected or de- signed by the workman himself. If so the Court of Appeal in England was right in its decision in Nisbet v. Rayne {supra) that the definition extended to a case of death by murder, and the Court of Appeal in Ireland was right in Anderson v. Balfour, (1910) 2 Ir. 497, and in the present case in taking a similar view of the meaning of "accident." To take a different \dew appeared to him to amount, in the language of Mathew, L. J., in Challis v. L. and S. W. R. Company (21 The Times L. R., 486; [1905] 2 K. B. 154) to the reading into the Act of a pro\'iso that an accident was not to be deemed within it if it arose from the mischievous act of a person not in the service of the em- ployer. The Second Di\asion of the Court of Session refused to follow these decisions in Murray v. Denholm, [1911] S. C. 1807. But he thought, for reasons that he had already given, that the Lord Justice Clerk misinterpreted Lord Macnaghten's judgment in Fenton v. Thorley (supra) when he read it as meaning that the expression " acci- dent" could not be applied to accident arising out of wilful crime. And he was confirmed in his view of the unrestricted rendering of the meaning of the word which he attributed to Lord Macnaghten by reading his subsequent judgment in Clover, Clayton & Co. v. Hughes, [1910] A. C. 242, where he spoke of the "far-reaching application of the word," and intimated that what was held in Fenton v. Thorley (supra) was that "injury" and "accident" were not to be separated, and that "injury by accident" meant nothing more than accidental injury or accident as the word was popularly used. In the present case the facts left little doubt on his mind that from one point of view at all events Kelly met with what might properly be described as an accident, and it was not the less an accident in an or- dinary and popular sense in which the word was often used merely for the reason that it was caused by deliberate violence. For the rest, he had no doubt that there was evidence on which the arbitrator could find, as he did, that the accident so defined arose out of, and in the course of, the employment. He was therefore of opinion that the appeal should be dismissed with costs. Lord Loreburn concurred. He said that et^Tnologically the word accident meant something which happened — a rendering which was not very helpful. They were to construe it in the popular sense, as plain people would understand it, but they were also to construe it in its setting, in the context, and in the light of the purpose which appeared from the Act itself. Now, there was no single rigid meaning in the common use of the word. Mankind had taken the libertv of SECT. IV.J TKIM JOINT DISTRICT SCHOOL BOARD V. KELLY. 391 using it, as they used so many other words, not in any exact sense, but in a somewhat confused way, or rather in a variety of waj's. People said that someone met a friend in the street quite by accident, as opposed to appointment, or omitted to mention something by acci- dent, as opposed to intention, or that he was disabled by an accident, as opposed to disease, or made a discovery by accident, as opposed to search or reasoned experiment. When people used this word they were usually thinking of some definite event which was unexpected, but it was not so always, for one might say of a person that he was foolish as a rule and wise only by accident. Again, the same thing, when occurring to a man in one kind of employment, would not be called accident, but would be so described if it occurred to another not similarly employed. A soldier shot in battle was not killed by acci- dent in common parlance. An inhabitant trying to escape from the field might be shot by accident. It made all the difference that the occupation of the two was different. In short, the common mean- ing of this word was ruled neither by logic nor by et;yTnology, but by custom, and no formula would precisely express its usage for all cases. Mr. Sankey ably urged upon their Lordships that this man could not have been killed by accident because he was struck by design. Suppose some ruffian laid a log on the rails and wrecked a train, was the guard who had been injured excluded from the Act? Was a game- keeper who was shot by poachers excluded from the Act? There was design enough in either case, and of the worst kind. In either case he would have thought, if the nature of the man's employment was looked at, it might be said he was injured by what was accident in that employment. When Lord Macnaghten, in Fenton v. Thorley (supra) spoke of the occurrence being "undesigned," he thought he meant undesigned by the injured person. One could not imagine its being said of a suicide that he was killed by accident. He found that to treat the word accident as though the Act meant to contrast it with design would exclude from what he was sure was an intended benefit numbers of cases which were to his mind obviously within the mischief. That made him realize the value of the old rule about construing a remedial statute. Just as in the case of the guard or the gamekeeper, so here this man was injured by what was accident in the employment in which he was engaged. It was not the less so that the person who inflicted the injury acted deliberately. He also came to the conclusion that there was e\adence to support the finding of the County Court Judge that the accident arose out of the emplo\Tnent. Lord Dunedin differed. After discussing Lord Macnaghten's defi- nition of "accident," in Fenton v. Thorley (supra), he said that there was one matter of completely general application which he conceived was authoritatively decided by PVnton's case (supra) and that was that the expression "injury by accident" in the statute must be in- 392 TRIM JOINT DISTRICT SCHOOL BOARD V. KELLY. [CHAP. IV, terpreted according to the meaning of the words in ordinary popular language. Now, there was no authoritative test of what was the meaning of popular language. On such a matter they were bound to take their own personal experience as persons well acquainted with popular language. For himself, he confessed that it seemed so clear that in popular language the injury in this case was not an injury caused by accident, that it was difficult for him to use terms which might not appear wanting in respect to those who had expressed themselves otherwise. It must be conceded that the injury here was caused by design — i. e., that there was an intention to inflict an injury. To his thinking, the word accident in popular language was the very antithesis of design. He brushed aside at once all arginnent as to acts of conscious ^-olition. The design must be design to inflict the injury, not design to do the act which might, as it turned out, be the cause of the injury. Popular language bore him out in this distinction. If a workman kicked a brick off a scaffold and it happened to hit and injure a man below, popular language would say he had met with an accident. Popular language in this case, he maintained, would never say that Kelly met his death by accident. It would say that he was murdered. In so doing it might not be positively accurate. The crime as a crime might possibly not be murder, but only manslaughter, as indeed, a jury found. But whether murder or manslaughter mattered not. Both terms were negative of accident in the popular sense. And here he would like to say that in his view criminal law had nothing to do with the matter. Criminal law had to do with the mens rea. When one said that popular language would describe this as murder, that was because the nar- rator of what had happened would naturally use a positive expression which according to his view fitted the facts. The point was that he would not use the expression "accident," because he would consider it inappropriate. Suppose A attacked B and was shot by B in self- defense, there would be no mens rea in B, and no crime. None the less, no one popularly would describe A's death as a death by accident. He wished to add a word as to the scope of the statute. It was said to aid the argument in favor of the enlargetl meaning of accident to consider that the statute introduced a system of compulsory insurance of the workman by his employer. Again, with great deference, he could not see that by this statute the argument was forwarded one whit — insurance let it be — but insurance against what? In a con- tract one found an answer to this question in the terms of the policy. Here the policy was the Act of Parliament and by an interpretation of its terms one must stand or fall. So that it only came back to the same question. What was the meaning of the word as used? As for further speculations, these, he humbly thought, were entirely outside their province. He would only say that if judges were to indulge in SECT. I V.J SMITH V. FIFE COAL CO., LTD. 393 speculations and reminiscences, they would probably find that such speculations and reminiscences did not altogether tally. But clearly they had nothing to do with such matters. Parliament might have left out the word accident. It did not do so. On the contrary, it put it in, as Lord Macnaghten said, with the approbation of all the other lords, in Fenton's case (supra), "parenthetically, as it were, to quaHfy the word injury, confining it to a certain class of injuries and exclud- ing other classes," and they had to interpret it. And in interpreting it he would like to say that he agreed with his noble and learned friend, Lord Atkinson whose judgment he had the advantage of reading, that the interpretation of accident given by the appellants really cut the word accident out of the Act. On the whole matter he put to himself the entire question in the words of the statute, Was what Kelly suffered an injury by accident arising out of and in the course of his employment? And remembering the repeated decisions of this House that he was to take the language in the ordinary popular meaning he answered unhesitatingly, No. Lord Atkinson and Lord Parker of Waddington agreed with Lord Dunedin. Lord Shaw of Dunfermline and Lord Reading agreed with the Lord Chancellor and Lord Loreburn. In the result the appeal was dismissed. SMITH V. FIFE COAL CO., LTD. House of Lords, 1914. [Reported 30 Times L. R. 502.] On June 28, 1912, the appellant, in discharge of his duty as a miner in the Benarty pit of the respondents, prepared a hole at his working place there for blasting, by placing the charge and detonator therein, and then packing the charge. Following the practice in the mine, al- though the practice was unknown to the management, the appellant, acting upon the instructions of Howard, the shot-firer appointed in terms of the Explosives in Coal Mines Order of February 21, 1910, section 2 (a), connected the detonator wire to the cable. Under that Order the duty was placed upon the shot-firer of connecting the cable to the firing apparatus or battery, and thereafter of turning the handle on the battery so as to discharge the shot; but Ijefore performing either of these operations it was his duty under the Order to see that all persons in the vicinity had taken proper shelter. On the date in ques- tion the appellant, after connecting the cable to the charge, was pro- ceeding to a place of safety in reliance upon the shot-firer's ascertain- ing that the appellant had taken shelter before he fired the shot. 39-i SMITH V. FIFE COAL CO., LTD. [CHAP. IV. The Sheriff-Substitute found that the appellant received personal injury by accident arising out of and in the course of his employment, and awarded him compensation. The Second Di\-ision held that there was no evidence to support the finding of the arbitrator and recalled his award. Lord Dunedin. My Lords, I do not think it necessary to make any remarks of a general character upon the phrase in the statute "arising out of the employment," because I did so with the approval of other members of your Lordships' House in the very recent case of Plumb V. Cobden FJour Mills Company (30 The Times L. R., 174, [1914] A. C. 62), and I do not wish to repeat what I then said. Nor do' I think that there was any divergence of opinion in the judgments of the learned judges in this case from the law as then laid down. Taking the phrase as a test, and not as a definition, it may, I think, be conceded that if the accident was due to the man's arrogating to himself duties which he was not called on to perform, and which he had no right to perform, then he was acting out of the sphere of his employment, and the injury by accident did not arise out of his employment. The sole question is. Was this so in this case? Or, in other words, What is the true view of the facts? I regret that I cannot come to the same conclusion as that come to by the learned judges. I think that I can best make my view clear by taking the case of Kerr v. Baird (1911 S. C. 701) and contrasting it with this. In that case the miner arranged a shot and fired it entirely by himself — I mean wathout the presence or help of the shot-firer at any stage of the proceeding. It was held rightly that the accident was due to the action of the man, and that such action consisted in taking upon himself duties which he had no right to perform. Here, on the contrary, the miner did not arrange and fire the shot. One part of the composite action was liis duty to insert and stem the detonator, and that he did. The next step — the connecting of the detonator wire to the cable — he had no business to do, and in doing it he did something which was not in the sphere of his emplojTnent. But two more stages are necessary before we arrive at the explosion which causes the injury and forms the accident — namely, the connecting of the cable to the battery and the putting of the battery into efficient action by the turning of the handle, and both these stages are done by the shot-firer. In the circumstances I cannot bring myself to see that the efficient cause of the accident was connected with the arro- gation of unauthorized duty by the miner. It is true that no explosion could have taken place unless the cable had been connected with the detonator. But that is only a remote cause sine qua non, and one in which the relation of the appellant to the act as distinguished from any other person is immaterial. It seems to me that the question of fact which has to be answered is this: Did the injury to the appellant arise out of the illicit and unauthorized action of the appellant? The SKCT. IV.] MARTIN V. LOVIBOND & SONS, LTD. 395 answer to that, it seems to me, so far as the action of the appellant consisted in coupling the wire, is "No." The injury arose from the premature explosion, and that premature explosion was caused by the action of the shot-firer. His Lordship was therefore of opinion that the view of the facts taken by the arbitrator was correct, and that his finding should be restored. Lord Kinnear, Lord Atkinson, and Lord Shaw of Dunferm- line concurred. Lord Parmoor gave judgment to the same effect. MARTIN V. J. LOVIBOND & SONS, LTD. Court of Appeal, 1914. [Reported [1914] 2 A'. B. 227.] Cozens-Hardy, M.R. In this case the learned county court judge, a judge of very great experience, has held that the dependents of a deceased drayman are entitled to compensation. In these cases it is necessary to consider the nature of the employment, the obligations of the man with reference to his emplojTiient, and all the circum- stances, before one can arrive at a conclusion. The man was a dray- man. His duties were from eight in the morning till eight in the evening. All that time he was going round for his employers, who were brewers, not merely to deliver beer at the public-houses tied to the brewers' firm, but also to deliver bottled beer and other things to private cus- tomers, to obtain orders for beer and everything of that kind. He was going his round ; the learned judge finds as a fact that he was in the particular street where this accident happened; he was there with his dray in the course of going his round. He was not deviating in any way from his duty. It was about two o'clock in the afternoon. What is the position of a man who cannot go home for his meals, who is bound to be away from his home from eight in the morning till eight in the even- ing, and whose business keeps him during all that time more or less con- stantly in the streets? This man pulled up his dray on the proper side of the road, crossed to a public-house, not to linger there at all, but for the purpose of getting a glass of beer. He had a glass of beer there, he was only away two minutes, and in crossing back from the public- house to the dray he was knocked down by a motor car. In the first place, it is said that this accident did not arise in the course of his employment. I entirely fail to understand that. I do not think there was any breach or break in the course of his employ- ment. I shrink from saj-ing that a man who was away from home, and necessarily away from home for twelve hours, is guilty of breaking the course of his employment because he gets off the dray for necessary 396 MARTIN V. LOVIBOND & SONS, LTD. [CHAP. IV. purposes. As I put it during the course of the argument, supposing he had stopped to give the horses some water, could it be said that that was not in the course of his employment? I feel great difficulty in seeing that under circumstances like these the driver of the dray is not equally entitled to procure reasonable liquid refreshment for himself, not deviating from the course of his route, not lingering in the public- house, but simply going in and getting a glass of beer as in this case, and returning at once to his dray. I therefore think that there was no breach of the course of his employment, and that the accident did hap- pen in the course of his employment. Then it is said, and in truth, that the accident must arise not merely "in the course of" but " out of the employment," and that this man was no more exposed to the risk of being knocked down by a motor car than any other member of the public. I cannot assent to that. His duties as a drayman involved his being from eight in the morning till eight at night more or less actually in the streets of London, spending his life in the streets of London. It seems to me to bear the strictest possible analogy to the bicycle case — Pierce v. Pro\'ident Clothing and Supply Co., [1911] 1 K. B. 997, — where we held that a man who is exception- ally exposed to street accidents is entitled to claim in respect of such an accident as arising out of his employment, although an ordinary member of the public not so exceptionally exposed would not be so entitled. The learned judge held that what the man did was not only in the course of his employment, but was done perfectly reasonably — not unreasonably in any way. He has held that what he did was really done in order to enal)le him to better discharge his duties as a dray- man for his employers. I hold that there is no ground for differing from his decision. Sir Samuel Evans, President. I agree. As Lord Loreburn said in one of the cases in the House of Lords, the more one sees of these cases under the Workmen's Compensation Act, the more one feels that all of them are in reality' pure questions of fact, with regard to which the only function of the court is to interpose when there is no evidence in support of a particular finding. The facts here are few and simple, and I will not repeat them. I will only emphasize that the evidence before the learned county court judge and the finding of the learned judge were that this man was at his work for twelve hours or more, and further that during those twelve hours he was away from his home and his place of business. He had no eating or resting place except on his dra\'. On the day in question he goes to the public-house, not as a loafer, or as a lounger, or a man addicted to drink, but for the purpose of refreshing himself with one glass of beer, and the whole period of his absence, including the time taken up in ordering the refreshment and its consumption, the learned judge says was only two minutes. It is said that the accident that oc- SECT. IV.] McNICOL's CASE. 397 curred to this man while going back to his draj^ did not arise out of or in the course of his employment. Personally, I am verj' glad that the learned judge has found that what he did was a reasonable incident of his employment. In my opinion he was justified in so finding. If he had found that there was an implied term in his contract of service that the man should be allowed to take refreshment in this way during the twelve hours, I think no court would have disturbed his finding. The learned judge was amply justified in coming to the conclusion that the accident to the deceased, in the circumstances, arose out of and in the course of his employment. The appeal therefore fails. Eve, J. I concur. The employment in this case was of a character which I think may be properly defined as continuous and peripatetic. It was an employment in which the workman was exceptionally exposed to street accidents. The peripatetic character of the employment made the accident one "arising out of the employment," and its con- tinuity made it one " arising in the course of the employment." I think the learned judge was quite right. ~~ Appeal dismissed. McNICOL'S CASE. Supreme Judicial Court of Massachusetts, 1913. [Reported 215 Mass. 497.] RuGG, C. J. This is a proceeding under St. 1911, c. 751, as amended by St. 1912, c. 571, known as the workmen's compensation act, by de- pendent relatives for compensation for the death of Stuart McNicol. 1. The first question is whether the deceased received an "injury arising out of and in the course of his employment, " within the meaning of those words in Part II, § 1, of the act. In order that compensation may be due the injury must both arise out of and also be received in the course of the employment. Neither alone is enough. It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act and with precision exclude those outside its terms. It is sufficient to say that an injury is recei\-ed "in the course of " the employment when it comes while the workman is doing the duty which he is employed to perform. It "arises out of" the employment, when there is apparent to the rational mind, upon consid- eration of all the circumstances, a causal connection between the con- ditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contem- plated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, 398 mcnicol's case. [chap. iv. then it arises " out of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causa- tive danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. The exact words to be interpreted are found in the English workmen's compensation act, and doubtless came thence into our act. Therefore decisions of English courts before the adoption of our act are entitled to weight. Ryalls v. Mechanics' Mills, 150 Mass. 190. It there had been held that injuries received from lightning on a high and unusu- ally exposed scaffold, Andrew v. Failsworth Industrial Society, [1904] 2 K. B. 32; from the bite of a cat habitually kept in the place of employ- ment, Rowland v. Wright, [1909] 1 K. B. 963; from a stone thrown by a boy from the top of a bridge at a locomotive passing underneath, Challis V. London & Southwestern Railway, [1905] 2 K. B. 154; and from an attack upon a cashier tra^'eling with a large sum of money, Nisbet v. Rayne & Burn, [1910] 2 K. B. 689, all arose in the course and out of the employment, while the contrary had been held as to injuries resulting from a piece of iron thrown in anger by a boy in the same service, Armi- tage V. Lancashire & Yorkshire Railway, [1902] 2 K. B. 178; from fright at the incursion of an insect into the room, Craske v. Wigan, [1909] 2 K. B. 635; and from a felonious assault of the employer, Blake v. Head, 106 L. T. Rep. 822. The definition formulated above, when referred to the facts of these cases, reaches results in accord with their conclusions. Applying it to the facts of the present case, it seems plain that the injury of the de- ceased arose "out of and in the course of his employment." The find- ings of the Industrial Accident Board in substance are that Stuart Mc- Nicol, while in the performance of his duty at the Hoosac Tunnel Docks as a checker in the employ of a firm of importers, was injured and died as a result of " blows or kicks administered to him by . . . [Timothy] Mc- Carthy," who was in "an intoxicated frenzy and passion." McCarthy was a fellow workman who "was in the habit of drinking to intoxi- cation, and when intoxicated was quarrelsome and dangerous, and un- safe to be permitted to work with his fellow employees, all of which was known to the superintendent Matthews," who knowingly permitted him in such condition to continue at work during the day of the fatality, — which occurred in the afternoon. The injury came while the de- ceased was doing the work for which he was hired. It was due to the act of an obviously intoxicated fellow workman, whose quarrelsome disposition and inebriate condition were well known to the foreman of SECT. IV.] DONOVAN'S CASE. 399 the employer. A natural result of the employment of a peaceable work- man in compan\' with a choleric drunkard might ha\e been found to be an attack by the latter upon his companion. The case at bar is quite distinguishable from a stabbing by a drunken stranger, a felonious at- tack by a sober fellow workman, or even rough sport or horseplay by companions who might have been expected to be at work. Although it may be that, upon the facts here disclosed, a liability on the part of the employer for negligence at common law or under the employers' liability act might have arisen, this decision does not rest upon that ground, but upon the causal connection between the injury of the de- ceased and the conditions under which the defendant required him to work. A fall from a quay by a sailor while returning from shore leave, Kitchenham v. Owners of S. S. Johannesburg, [1911] 1 K. B. 523; S. C. [1911] A. C. 417; a sting from a wasp, Amys v. Barton, [1912] 1 K. B. 40; and a frost bite, Warner v. Couchman, [1912] A. C. 35, all have been held to be injuries not "arising out of" the empIo\TTient. But we find nothing in any of them in conflict with our present conclusion. Nor is there anything at variance with it in Mitchinson v. Day Brothers, [1913] 1 K. B. 603, where it was held that injuries resulting from an assault by a drunken stranger upon an employee engaged at his work on the highway did not arise out of the employment. That was a quite different situation from the one now before us.^ DONOVAN'S CASE. Supreme Judicial Court of Massachusetts, 1914. [Reported 217 Mass. 76.) Sheldon, J. The contest here is between Donovan, an employee of one McGreevey, and an insurance company which had insured McGreevey under the provisions of St. 1911,' c. 751, Part V, § 3, as amended by St. 1912, c. 571, § 17. The point in dispute is whether Donovan's injury arose out of and in the course of his employment, within the meaning of Part II, § 1, of the act of 1911 above cited. See McNicol's case, 215 Mass. 497. This must be decided upon the facts found by the Industrial Accident Board in its review of the report of the committee of arbitration. St. 1911, c. 751, Part III, §§ 5, 10, 16, as amended by St. 1912, c. 571, §§ 10, 13, 15. Donovan was employed by McGreevey in cleaning out catch basins at a place about two miles from his home. It had been and was his cus- tom, in common with other employees and with the knowledge and con- sent of his employer, to ride to and from the vicinit\- of the catch basins 1 The remainder of the opinion is omitted. — Ed. / 400 DONOVAN'S CASE. [CHAP. IV. in a wagon furnished by his employer, the wagon meeting the employees on the street and the employer being notified if any of the employees failed to report for work at the beginning of the day. The wagon was at the service of the employees at the end of the day, and they might ride in it back to the employer's barn if they wished. Donovan was in- jured while so riding in this wagon at the end of his day's work, and the board has found that his transportation on the wagon was " incidental to his employment," and " therefore" arose "out of and in the course of said employment." The language of this last finding is a little obscure; but we treat it, as both counsel and also the Superior Court have treated it, as being an inference that Donovan's injury arose out of and in the course of his employment, drawn from the other facts stated, including the fact that the transportation was "incidental to his employment." The question to be decided is therefore whether this inference could be drawn from those facts; for the facts themselves now cannot be inquired into. St. 1912, c. 571, § 14. There have been several decisions in England as to when and how far an employee can be said to have been in the employ of his nraster, while traveling to and from his work in a vehicle or means of conveyance provided by the latter, and how far injuries received in such a con- veyance can be said to have arisen out of and in the course of the employment. Many of these decisions have been cited and discussed by Professor Bohlen in 25 Harvard Law Re\aew, 401, d seq. From his discussion and the cases referred to by him, and from the later de- cisions of the English courts, the rule has been establislied, as we con- sider in accordance with sound reason, that the employer's liability in such cases depends upon whether the conveyance has been provided by him, after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employees, and is one which the employees are re- quired, or as a matter of right are permitted, to use by virtue of that contract. See Davies v. Rhymney Iron Co., 16 T. L. R. 329; Holmes v. Great Northern Railway, [1900] 2 Q. B. 409; Whitbread v. Arnold, 9^^ L. T. 103; Cremins r. Guest, Keen & Nettlefolds, [1908] 1 K. B. 469; Gane v. Norton Hill Colliery Co., [1909] 2 K. B. 539; Hoskins v. J. Lan- caster, 3. B. W. C. C. 476; Parker r. Pout, 105 L. T. 493; Walters v. Staveley Coal & Iron Co., 105 L. T. 119, and 4 B. W. C. C. 89 and 303; Greene v. Shaw, [1912] 2 Ir. 430, and 5 B. W. C. C. 530; Mole v. Wadworth, 6 B. W. C. C. 128; Edwards v. Wingham Agricultural Im- plements Co., [1913] 3 K. B. 596, and 6 B. W. C. C. 511; Walton v. Tredegar Iron & Coal Co. 6 B. W. C. C. 592. The finding of the Industrial Accident Board that Donovan's trans- portation was "incidental to his employment" fairly means, in the connection in which it was used, tiuit it was one of the incidents of his employment, that it was an accessory, collateral or subsidiary part of contract of employment, something added to the principal part of that SECT. IV.] MILLIKEN's CASE. 401 contract as a minor, but none the less a real feature or detail of the con- tract. Whatever has been uniform]\' done in the execution of such a contract by both of the parties to it well may be regarded as having been adopted by them as one of its terms. Especially is this so where none of the provisions of the contract has been shown by either party, but everything is left to be inferred from their conduct. That was the reasoning of this court in such cases as Gillshannon v. Stony Brook Rail- road, 10 Cush. 228, 231. McGuirk r. Shattuck, 160 Mass. 45, 47; Boyle V. Columbian Fire Proofing Co., 182 Mass. 93, 98; Kilduff v. Boston Elevated Railway, 195 Mass. 307; and Feneff v. Boston &^Maine Rail- road, 196 Mass. 575, 577. Accordingly we are of the opinion that the Industrial Accident Board had the right to draw the inference that Donovan's injury arose out of and in consequence of his employment. Under our own decisions, Donovan at the time of his injury was in the emplo\- of McGreevey and was a fellow servant with the driver of the wagon. O'Brien v. Boston & Albany Railroad, 138 Mass. 387. See also the cases last above cited. It is not easy to suppose that the Legislature intended that one who was under the disabilities of a servant should be excluded arbitrarily from the benefits which it undertook to give to all emplo\ees. The provisions of the act are to be construed broadly rather than narrowly. Coakley's Case, 216 Mass. 71, 73. The decree of the Superior Court ^ must be affirmed; and it is So ordered. MILLIKEN'S CASE. Supreme Judicial Court of Massachusetts, 1914. [Reported 216 Mass. 293.] LoRiNG, J. This is an appeal from a decree of the Superior Court [Morton, J.] based on a decision of the Industrial Accident Board ordering the insurer to pay $1,950 for the death of Frank T. Milli- ken. The facts found by the board were these: Milliken, at the time of his death in October, 1912, and for some twenty-seven years before that time, had been a driver in the employ of A. Towle and Company, the insured, who were teamsters. Some four or five years before his deatJi Milliken, in the course of his employ- ment, fell from his wagon, striking on his head. This caused inter alia an impairment of memory. One afternoon in July, 1912 (three months before his death), Milliken lost his memory while driving his employers' wagon in Boston, and for half an hour was unable to renember where he was or to identify the streets in which he was dri^'ing, although they ^ The decree was made by Pierce, J. The insurer appealed. 402 milliken's case. [chap. i\^ were streets with which he was "thoroughly famihar." During the day of October 8, 1912, from a similar failure of memory Milliken did not call for packages, as his duties required, and reported (contrary to the fact) that he had not received them because they were not ready. Thereupon he was directed to drive his wagon to his employers' stable in Charlestown to be put up for the night. Driving his wagon to the stable for the night was part of Milliken's regular work. This order was given to Milliken, at about five o'clock in the afternoon at his employers' Boston office in Matthews Street near Post Office Square. "At some place between Post Office Square and the stable in Charles- town he was seized with such a loss of memory and mental faculties that he was unable to recognize streets and places, and on account of such disordered mental condition he became lost and unable to direct the horse to the stable." About eleven o'clock that night Milliken was seen driving the wagon in a private way in Burlington and was helped back to the public highway, whereupon he drove away in the direction of Lowell. At this time Milliken would not speak. At about six o'clock the following morning Milliken was found lying in a swamp in Woburn and — with the exception of his head — covered with mud and water. His hat was found on the "adjacent road" some two hundred feet away, and the horse and wagon were found " by the side of said road about half a mile distant in the direction of Boston." Milliken was taken to a hospital at Woburn, where he died on October 14, without recovering his memory. He " spoke in a delirium only of looking for his horse." The cause of his death was pneumonia, brought on by cold and exposure while lying in the swamp. The Industrial Accident Board found: "That the loss of memory with which the employee, Milliken, was seized was not in itself a fatal disorder, and that he would not have met his death as he did but for the horse and wagon and his effort to get them to the stable." The dependent's contention is that Milliken's death was caused by pneumonia brought on by his falling into the swamp and lying there all night; that under these circumstances falling into the swamp and lying there all night was a personal injury which caused his death; and for this she relies on Alloa Coal Co. v. Drylie, 50 S. L. R. 350, and Kelly v. Auchenlea Coal Co., 48 S. L. R. 768.' The fact that Milliken "would not have met his death as he did but for the horse and wagon and his effort to get them to the stable," goes no farther than to show that the personal injury suffered by Milliken was a personal injury "in the course of his employment." The difficulty in the case arises from the provision that the personal injury must be one "arising out of" as well as one "in the course of his employment." It was held in McNicol's case, 215 Mass. 497, that the provision limiting the personal injuries for wliicli compensation is to be made to those "arising out of" the employee's employment means that the na- SECT. IV.] SUNDINE'S CASE. 403 ture and conditions of the employment must be such that the per- sonal injury which in fact happened was one likely to happen to an employee in that employment. In that case it was said that there must be a "causal connection" between the employment and the injury. There is nothing in the employment of driving a wagon which makes it likely that the employee will alight from his wagon, wander to and fall into a swamp, and lie there all night. The distinction between the case at bar and a case within this clause of the act is well brought out by what is suggested by a remark of the majority of the Industrial Acci- dent Board. If the horse driven by Milliken had run away and INIilli- ken had been thereby thrown out and killed, the personal injury in fact suffered in that case would have been one which from the nature of his employment would be likely to arise, and so would be one " arising out of his [the employee's] employment." But as we have said, there is nothing in the employment of driving a wagon which makes it likely that the employee will alight from his wagon, wander to and fall into a swamp, and lie there all night. Sneddon v. Greenfield Coal & Brick Co., 47 S. L. R. 337, much relied on here by the dependent, is another case which brings out the distinction. There a miner got lost in the under- ground ways of a mine and was killed by the exhaust steam from an engine which was not fenced off. See also Wicks r. Dowell & Co., [1905] 2 K. B. 25. We find nothing in the other cases relied on by the dependent which calls for notice. It seems plain that, if Milliken's death was caused by a personal in- jury, it was the one which happened some four or five years before the occurrence here complained of and before the workmen's compensation act was passed. At that time he fell from his wagon and striking on his head suffered as a result "an impairment of his memory." The decree of the Superior Court appealed from is reversed, and a decree should be entered declaring that the dependent has no claim against the insurer. So ordered. SUNDINE'S CASE. Supreme Judicial Court of Massachusetts, 1914. [Reported 218 Mass. 1.] Sheldon, J. It is provided by statute (St. 1911, c. 751, Part III, § 17) that "if a subscriber enters into a contract, written or oral, with an independent contractor to do such subscriber's work . . . and the as- sociation would, if such work were executed by employees immediately employed by the subscriber, be liable to pay compensation under this act to those employees, the association shall pay to such employees 404 sundine's case. [chap. iv. any compensation which would be payable to them under this act" if the independent contractor were a subscriber. By the word "as- sociation" is meant the Massachusetts Employees' Insurance Associ- ation, Part V, § 2, of the same act; and this insurance company is under the same liability that the association would have been. St. 1912, c. 571, § 17. It follows that the petitioner has the same rights against this insurance company as if it had directly insured her employer Olsen. The insurer does not deny this, but it contends that the petitioner's injury did not arise "out of and in the course of" her employment within the meaning of Part II, § 1, of the act first referred to. This is because she was injured at about noon, after she had left the room in which she worked for the purpose of getting a lunch, and upon a flight of stairs which, though affording the only means of going to and from her work- room, was yet not under the control either of Olsen, her employer, or of F. L. Dunne and Company, for whose work Olsen was an independ- ent contractor. The first contention, that she was not in the employ of Olsen while she was going to lunch, cannot be sustained. Her employment was by the week. It would be too narrow a construction of the contract to say that it was suspended when she went out for this merely tempo- rary purpose and was rex-ived only upon her return to the workroom. It was an incident of her employment to go out for this purpose. Boyle V. Columbian Fire Proofing Co., 182 Mass. 93, 102. The decisions upon similar questions under the English act are to the same effect. Blovelt V. Sawyer, [1904] 1 K. B. 271, which went on the ground that the dinner hour, though not paid for, was yet included in the time of employment. Moore v. Manchester Liners, 3 B. W. C. C. 527, where the House of Lords reversed the decision of the Court of Appeal, reported in [1909] 1 K. B. 417, and held, following the dissenting opinion of Moulton, L. J., that a temporary absence by permission, though apparently of longer duration than would have been likely in the case before us, did not suspend the employment, and that an injury occurring during such a temporary absence, arose "out of and in the course of" the employ- ment. Gane v. Norton Hill Colliery Co., 2 B. W. C. C. 42, and [1909] 2 K. B. 539. Keenan v. Flemington Coal Co., 40 Sc. L. R. 144. Mac- Kenzie v. Coltness Iron Co., 41 Sc. L. R. 6. Nor do we regard it as decisive against the petitioner that she was in- jured while upon stairs of which neither Olsen nor F. L. Dunne and Company had control, though they and their employees had the right to use them. These stairs were the only means available for going to and from the premises where she was employed, the means which she practically was invited l)y Olsen and by F. L. Dimne and Company to use. In this respect, the case resembles Moore r. Manchester Liners, ubi supra; and that case, decided under the English act before the pas- sage of our statute, must be regarded as of great weight. McNicol's case, 215 Mass. 497, 499. It is true that before the passage of St. 1911, SECT. IV.] DRAGOVICH V. IROQUOIS IRON CO. 405 c. 751, the petitioner could not have held her employer for this injury. Hawkes v. Broadwalk Shoe Co., 207 Mass. 117. But that now is not a circumstance of much importance; for one of the purposes of our re- cent legislatures was to increase^the right of employees to be compen- sated for injuries growing out of their employment. It was a necessary incident of the employee's employment to use these stairs. We are of opinion that according to the plain and natural meaning of the words an injury that occurred to her while she was so using them arose "out of and in the course of" her employment. The decree of the Superior Court must be affirmed. So ordered. DRAGOVICH V. IROQUOIS IRON CO. StJPREME Court of Illinois, 1915. [Reported 269 III. 478.] Carter, J. This was a proceeding to recover compensation, under the Workmen's Compensation Act of 1911, for the death of Frank M. Markusic. . . } The evidence shows that the deceased, Frank M. Markusic, had been in the employ of appellant, the Iroquois Iron Company, for a number of years, doing different kinds of work about appellant's plant, sometimes in the buildings and sometimes on the dock. On December 24, 1912, he was working in the shop of appellant, assisting in making some safety appliances. Max Gornick, with two or three other men, was working in the same shop repairing steam pipes under the floor, and for this purpose some of the steel plates forming the floor had been taken up, thereby lea\ang an opening or hole, in which was accumulated a quantity of hot water from which were escaping vapor and steam, making it impossible for a person approaching the opening from where Markusic was working, to see the hole. Gornick, while engaged in this work, slipped and fell into the opening and into the hot water and screamed for help, crying out in Croatian, which was the native lan- guage of Markusic: "For good God! pull me out, people! pull me out! " At this cry, the testimony is, Markusic dropped his work and ran toward the place from which the cry came. The steam and vapor coming from the water so obscured the opening that he fell into the hole and was so badly scalded that he died from the effects two days 'later. Gornick was being assisted out by others just as Markusic fell in. The distance from where deceased was working to the place where 1 Part of the opinion, dealing with other points, is omitted. — Ed. 406 STEWART V. LOXGHURST. [chap. IV, the accident occurred is estimated by witnesses to be from 100 to 150 feet. In traveling between the two points he would have to go about 50 or 75 feet south and then about 50 feet west around a boiler. The place of the accident could not be seen, apparently, from the place where deceased worked. Section 1 of the act requires that compensation may be had for accidental injm-ies sustained by any employee "arising out of and in the course of the employment," etc. From the facts already stated, counsel for appellant argues that it was not shown that the accident arose out of and in the course of deceased's employment. This pro\'ision of the statute has never been construed by this court but some- what similar acts have been construed by the courts in other jurisdic- tions. Under these authorities it is clear that it is the duty of an employer to save the lives of his employees, if possible, when they are in danger while in his employment, and therefore it is the duty of a work- man in his employ, when occasion presents itself, to do what he can to save the lives of his fellow-employees when all are at the time work- ing in the line of their employment. Any other rule of law would be not only inhuman but unreasonable and uneconomical, and would, in the end, result in financial loss to employers on account of injuries to their employees. From every point of view it was the duty of the de- ceased, as a fellow-employee, in the line of his duty to his emplo.yer, to attempt to save the life of his fellow-employee under the circum- stances here sho\vn. That he failed in his attempt does not in the slightest degree change the legal situation. The reasoning of the fol- lowing cases tends to support this conclusion: Rees v. Thomas, 1 B. W. C. C. 9; Matthews v. Bedworth, 1 id. 124; London and Edinburgh Shipping Co. V. Brown, 42 Scottish L, R. 357. STEWART V. LONGHURST. House of Lords, 1917. [Reported [1917] A. C. 249.] Lord F'inlay, L. C. My Lords, this is an appeal against the decision of the Court of Appeal allowing the claim for compensation under the AVorkmen's Compensation Act, 1906, in respect of the death of the respondent's husband, Herbert Longhurst. The appellants are engineers and ship repairers, and were engaged in effecting repairs to the barge Forward, which was lying in the South- West India Docks, and the deceased, who was a carpenter, was in their employment on this work. The docks are under the control of SECT. IV.] STEWART i'. LONGHURST. 407 the Port of London Authority: they are not open to the pubUe for traffic, but the appellants and their workmen had the permission of the Authority to pass through the docks on their way to and from the barge on which they were at work. The deceased left the barge on November 9, 1915, a few minutes before 8 p.m. In the darkness he missed his way while passing along the quay, fell into the lock and was drowned. The county court judge disallowed the claim, holding that when the deceased got off the barge on to the quay the relationship of master and servant ceased as completely as if he had got off the barge on to the high road. On appeal by the respondent to the Court of Appeal the judgment of the county court judge was reversed, and it was directed that there should be an award of £300 to be apportioned among the dependents of the deceased. (The amount of compensation was agreed by the parties.) The employers appeal to this House and ask that the decision of the county court judge in their favour should be restored. * It was contended in support of the appeal that the finding of ^:he county court judge in a case of this nature should not be interfered with. It is, however, quite plain that the finding of the county court judge was not on fact but on law. He considered that, as a matter of law, the accident did not occur in the course of the employment, on the ground that, in his view, the employment ceased when the deceased reached the quay. In my opinion this view is erroneous. It has been established by a series of decisions that employment for the purposes of the Workmen's Compensation Act may in many cases be regarded as existing before the actual operations of the workman have begun, and that it may continue to exist after the actual work has ceased ; for instance, if a workman is employed in a factory the employ- ment normally would begin as soon as the workman has entered the premises for the purpose of his work and continue until he leaves them after the actual work is done. There was a decision in your Lordship's House on March 16, 1905, in the case of Cross, Tetley & Co. v. Catterall (unreported), which has been repeatedly cited, but has not yet been reported. The case and appendix and the transcript of the judgments are in the library of your Lordships' House. In that case the colliery in which the man was engaged was approached by a bridge built by the employers over a canal for the convenience of their workmen, and the workman fell into the canal from the bridge while going to his work. Lord Halsbury said in giving his opinion: "I do not agree that his employment only l:)egins at the moment he strikes the coal with his pick. I think the man was really in the employment the moment he reached the bridge. He was doing something on his master's behalf; that is to say, he was on his way to the colliery for the purpose of working." The decision in that case established that the employment may begin as soon as the workman has reached his employer's premises or 408 STEWART V. LONGHURST. [CHAP. IV. the means of access thereto. And in the same way the employment may be. considered as continuing until the workman has left his em- ployer's premises. The case would be different if the workman was at the time of the accident on the public highway on his way to or from his work. His employment cannot be considered as having begun if he is merely in transit in the public street or road to or from his employer's premises. Of course, if his employment were of a kind which is pui-sued on the highway he might be in the course of his employment while there, but I am speaking of cases in which he is in the public way merely in exercise of the public right of passage there on his way to or from his employer's. The present case belongs to a class of cases where the thing on which the workman is employed is lying in a dock or other open space to which he obtains access only for the purposes of his work. Actual ownership or control by the employer of the spot where the accident occurred is not essential. The workman comes there on his way to and from his work, and he may be regarded as in the course of his employ- ment while passing through the dock or other open space to and from the spot where his work actually lies. Such passage is within the contemplation of both parties to the contract as necessarily incidental to it. The case of Cook v. Owners of S.S. Montreal (6 B. W. C. C. 220) was much relied on by the appellants, but seems to me to have no application. That was the case of a sailor who had been paid off on board his ship at the end of the voyage, and from the ship got on to a "dolphin," or floating stage, connected with the quay by fixed steps and fell into the water between the "dolphin" and the quay. Accord- ing to the view taken of the facts in that case, he had reached the shore before the accident took place, and on that view of the facts it was held that his employment had terminated. It may be that a different view might have been taken of the facts as regards the ter- mination of the workman's transit from the ship to the shore, but that is immaterial. On the view taken of the facts the case has no bearing on the present one. In the subsequent case of Webber v. Wansborough Paper Co. ((1913) 6 B. W. C. C. 583; on appeal [1915] A. C. 51), the Court of Appeal, apparently in deference to Cook v. Owners of S.S. Montreal, decided against the claim, but their decision was reversed in the House of Lords on the ground that the ladder from which the accident took place formed the ordinary means of access to the ship, so that the accident was held to take place in the course of the employment. There is, however, a decision in the Court of Appeal in Holness v. McKay & Davis ([1899] 2 Q. B. 319), which appears to me to be in conflict with the view which I have abo\e indicated. In that case contractors were ballasting a siding which could be reached only by going for some distance through the prenuses of the railway company. SECT. IV.] STEWART V. LONGHURST. 409 On a foggy morning a workman, while proceeding to his work, got on to the main hne and was run over and killed. A. L. Smith, L. J., and Vaughan Williams, L. J., held that the accident did not arise in the course of the employment, the former pointing out that there was an entire absence of control by the employer over the premises where the accident occurred. Romer, L. J., differed from his colleagues, and in the course of his judgment made the following observations (ibid. 328) : "The deceased man was in the employment of the appellants, who had contracted with the railway company to do certain work at a spot substantially surrounded by lines of railway, and the access to which was not unattended with danger. By their contract with the railway company the appellants had to provide access for their workmen at their own cost, and accordingly they directed the men that they must cross the lines to get to their work. The men w^ere bound by the necessities of their employment and as part of its duties and dangers to cross the lines and to have, through the appellants, a special right or licence from the railway company to cross them; that special right or licence being given by implication. When the workmen began to cross the lines, they were acting under this right or licence obtained for them by the appellants; they were doing some- thing which they were specially bound to do under their contract of employment, and which they could not lawfully do but for that con- tract. Under these circumstances I think that the employment in this case substantially began when the deceased began to act upon the implied right or licence to cross the lines. I am of opinion, therefore, that the county court judge was justified in holding that the accident occurred in the course of the deceased's employment. I think also that his finding was correct as to the circumstances under which the accident occurred. The deceased had been told to go to the Waterloo gate; it was his nearer and more convenient way to get to his work, and it was in evidence that he was never known to use the other gate. On the facts, I should come to the conclusion that he did go by the Waterloo gate, and that he lost his way owing to the fog, and that the accident arose directly by reason of his being obliged to cross the dangerous zone of lines in order to get to his work. I think, therefore, that the deceased man was at the time of the accident acting in the course of his employment and that the accident arose out of his employment. The cases show that the Court is not bound by a hard and fast line to con- sider that a workman is not acting in the course of his employment until he actually begins the work which he has to do. To my mind the present case is like that of a workman whose work lies in a particular part of a large factory, and who in order to get to it has to go through the rest of the factory and meets with an accident while so going. It is said that there is a distinction because all the parts of the factory are under the control of the same employer; but 1 consider that case 410 MATTER OF SAENGER V. LOCKE. [CIL\P. IV. analogous to the present; for the railway company had given the con- tractor the right to bring his men to their work across the lines, and the contractor had in a sense a right of control over the lines by virtue of which alone the men used the lines. In principle, therefore, I think that this case cannot be distinguished from that of the factory. This case is not like that of an injury received on the public highway by a man while going to work, when of course the employer, having nothing directly to do with the highway or its user by the men, would not be liable. Looking at the facts, I think that the very able judgment of the county court judge was correct, and that this appeal ought to be dismissed." If the judgment of the majority of the Court of Appeal in that case were right, it would seem to me to follow that the appeal in the present case should succeed. In my opinion, however, the judgment of the majority was erroneous, and Romer, L. J., in the passage which I have quoted correctly states the principles of law upon the subject. The principles, as stated by him, are, in my judgment, as applicable to the present case as they were to that with which he was dealing, and in my opinion this appeal should be dismissed with costs. Lords Loreburn, Dunedin, Atkinson and Buckmaster concurred. Order of the Court of Appeal affirmed and appeal dismissed with costs. MATTER OF SAENGER v. LOCKE. Court of Appeals of New York, 1917. [Reported 220 N. Y. 556.] Andrews, J. Felix A. Locke was engaged in the millinery business and in the making of hats and feathers in New York city. This was a hazardous employment. Edna Saenger was one of his employees. On February 11th, 1916, while working in the millinery department she had some difference with her boss with regard to her work. As a result she became nervous and hysterical and fainted. Two of her co-employees rushed to get water and ammonia. They returned, one with a glass of ammonia and one with a glass of water. In some way these glasses became mixed and the ammonia was thrown into the face of P^dna Saenger, causing the injuries for which an award was made her. Clearly the injuries so received by her were accidental and arose in the course of her employment but they ditl not arise out of such em- ployment. SECT. IV.] MATTER OF DALY V. BATES. 411 If she had fainted because of fumes present in the work room and so falhng had injured herself, a different question would have been presented; but the claimant fainted because of her physical condition and even if her faintness might have been said to have resulted from her quarrel with her boss with regard to her work, the fainting was in no proper sense connected with the accident. The accident was caused by a co-employee mistaking the two glasses containing ammonia and water, not because the ammonia was exposed and an error arose as to its nature or use. The employee who obtained it knew precisely what it was. The employer had not furnished the ammonia as medicine for his employees nor had he authorized in any way its use by them as a medicine. A fainting such as is shown in this case and help such as was gi^en is not a natural incident to the business. It has no more connection with it than if a physician had been called in and having been handed glasses of ammonia and water had made the same mistake. In Matter of De Fihppis v. Falkenberg (170 App. Div. 15.3; affd., 219 N. Y. 581) an employee was injured by being struck in the eye by scissors thrust through a partition by a fellow-servant as a practical joke. Such an injury did not arise out of the employment. Where injuries result from quarrels between fellow-servants the rule is that where the quarrel arose out of matters pertaining to the busi- ness, then the accident arises out of the employment. Where the quarrel is an independent affair having no connection with the master's work, then it does not. (Matter of Heitz v. Ruppert, 2 IS N. Y. 148.) As is said in the case last cited, the injury must be received as a natural incident of the work. It must l)e one of the risks connected with the employment, flowing thereform as a natural consequence and directly connected with the work. Such is not this case. The order of the Appellate Di^'ision should be reversed and the claim dismissed, with costs in Appellate Di\dsion and in this court against the industrial commission. HiscocK, Ch. J., Chase, Hogan, Cardozo and Pound, JJ., con- cur; McLaughlin, J., not voting. Order reversed, etc. MATTER OF DALY v. BATES. Court of Appeals of New York, 1918. [Reported 224 .V. Y. 126.] HoGAN, .1. The employer is engaged in conducting a hotel in the city of New York. The claimant was employed as a laundress in the hotel. Her hours of employment were usually from 7:15 a. m. to 5:00 412 MATTER OF DALY V. BATES. [CHAP. IV. or 5:30 p. m. As compensation for her labor claimant received as wages a money consideration, hoarding and lodging and the privilege after the regular working hours of the day to use the plant of the employer to do her laundry work. On March 12, 1917, the claimant finished her work at half past four o'clock in the afternoon. During the evening, while she was engaged in the laundry doing her personal laundry she sustained injury to her wrist. The industrial commission determined the injury was acci- dental and arose out of and in the course of her emplo\Tnent and made an award therefor. Upon appeal the determination of the commis- sion was affirmed by the Appellate Division. In Matter of Heitz v. Ruppert (218 N. Y. 148, 151) we sought to establish general principles applicable to a construction of subdivision 7 of section 3 of the Workmen's Compensation Law, a recitation of which will bear repetition here: "the statute does not pro\'ide an in- surance against every accident happening to the workman while he is engaged in the employment. The words 'arising out of and in the course of employment' are conjunctive, and relief can be had under the act only when the accident arose both ' out of ' and ' in the course of employment. The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work." Applying the principles stated to the case at bar, we are led to the conclusion that the injury to claimant did not arise from or in the course of her employment. She was employed to perform the laundry work of her employer. Such employment was to be performed within estal)lished hours. On the day in question claimant had completed her labors for her employer some few hours before the happening of the accident. Her duty to her employer did not require her presence in the laundry again until the following morning. The accident oc- curred in the evening while she was engaged in doing work personal to herself. At that time she was not engaged in the performance of any duty she was employed to perform, or directly connected with or in- cidental to the work of the employer, but her labor there was entirely disassociated with the work of her employer. The fact that she was permitted to use the laundry for her personal benefit did not change the relation of the parties. (Brienen v. Wisconsin Public Service Comm., 163 N. W. Rep. 182.) Had the claimant remained in her room in the hotel and engaged her time in mending her clothing, and while so engaged met with an accident by reason of using a scissors, it could scarcely be held that such injury would arise out of and in the course of her employment or was incidental thereto. (Matter of De Filippis, 170 App. Div. 153; affd., 219 N. y. 581; Hallett's Case [Mass., May 28, 1918], 119 N. E. Rep. SECT. IV.] • MATTER OF DALY V. BATES. 413 673; Griffith v. Robbins, Court of x\ppeal, England, December 14, \ 1916, 10 IJutterworth's Workmen's Compensation Cases, 92.) In the latter case a girl employed as a parlor maid was sitting in the kitchen, occupying her spare time in mending a rent in her dress. Hear- ing a bell rung by her mistress, she left the darning needle in her dress and went to answer the bell. In walking to the door she managed in some way to drive the needle into her knee, breaking it off short, caus- ing her serious injury. An award was made in her favor, which was reversed by the Court of Appeal of England, and it was there held there was no e\adence to show that the injury was due to any risk in- cidental to her employment and that the accident did not arise out of her employment. The order of the Appellate Division and the determination of the State industrial commission must be reversed and the claim dismissed, with costs in this court and in the Appellate Division against the State industrial commission. HiscocK, Ch. J., Chase, Pound, McLaughlin, Crane and An- drews, JJ., concur. Order reversed, etc. 414 REX V. COMPTON. [cHaP. V. CHAPTER V. PERMITTED ACTS. SECTION I. Duti/ to Act. REX V. COMPTON. Assizes. 1347. [Reported Liber Assisarnm, 97, pi. 55.] H. DE CoMPTON was indicted, &c., that he feloniously killed H. Vescy at C. on a certain day in the fourteenth year of the present King, and also for that he received one R., who was outlawed for felony, know- ing, &c., for which he was now arraigned. H. said that said H. V. died in the ninth year of the present King; and that said H. V. and another were indicted in the ninth year of the present King, before Sir T. de Rokeby, Sheriff of York, of divers felo- nies, when the sheriff assigned the said J. [H.?] de C. by his commission (which he exhibited to the court) to arrest and take the said H. and the other tliieves ; and the said H. de C. witli others came to the said place, and there found the said H. and the other thieves, and showed thera their warrant, which they had to arrest tliem, and ordered them to surrender; and they would not surrender, but defended themselves, and killed and wounded divers persons, and in this fight H. was killed. And we do not think that our Lord the King ought to impeach us of his death. Thorp, C. J. All shall be found out b}' the juiy. (And he told them all that he had said.) Wherefore we ask you whether H. V. died in the ninth year of the present king and not in the fourteenth, as the indictment is, and if there was no otlier II. V. whom he killed in the fourteenth year, and also if he might have taken him without killing him, so that he killed him of his own malice, &c., and if you find that, speak of his lands and goods. The jur}' said that H. had gone (as he said), and that there was no other H. V. than that one, &c., and that he could not have taken him in another wa}'. Thorp. They have acquitted you of this charge, and we acquit 3-ou. And I sa}' well to you tliat when a man kills another b}- his warrant he ma\- well avow the fact, and we will freel}' acquit hiui without wait- SECT. I.] HEKBEKD'S CASE. 415 ing for the King's pardon b\' Iiis charter in this case. And in man}' otlier cases a man may kill another without impeachment, as if thieves come to rob a man, or to commit buro;larv in his house, lie raav safelv kill them, if he cannot take them. And note, iiow it was with a gaoler who came to the gaol with a hatchet in his hand, and just then the prisoners had broken their irons, and were all ready to have killed him, and they wounded him sorely, but with the hatchet in his hand he killed two, and then escaped, &c. And it was adjudged in this case b}- all the council that he would not have done well otherwise, &c. Likewise he said that every person might take thieves in the act of larceny, and felons in the act of felony, and if the\- would not sur- render peaceably, but stood on their defence, or fled, in such case he might kill them without blame, &c. i- HERBERD'S CASE. King's Bench, 1457. [Reported Y. B. .35 H. 6, .57, pi. 3.] A WOMAN brings an Appeal for the death of her husband, in the King's Bench, against William Herberd, Knt., Walter Devers, Knt., and several others. And one of the defendants comes and says that the wife should not have tliis appeal, for he says that at the Sessions of the peace held at Hertford on a certain day &c., before, &c., it was presented by twelve lawful men sworn to inquire for the King, &c., that one J. W. of Hertford had feloniously killed one J. Vowant &c., and that the husband of the plaintiif, for whose death she has brought this appeal, abetted and comforted him in committing the said felony, &c., by force of which a warrant issued to the sheriff to take the body of the said J. W. and of this woman's husband, by force of which the sheriff returned the warrant served, and set them at the bar; by force of which the said J. W^. was arraigned for the said felony and pleaded not guilty, and was found guilty, and by force of this he was hanged. And then the woman's husband was arraigned and pleaded not guilty, and was found guilty, and was sentenced to be hanged : all which he is ready to aver, and prays that it be allowed. And as to the felony he pleads not guilty, &c. Littleton. This is no plea; he ought to have pleaded not guilty generally for you cannot justify a felony.' . . . Wangford. In cases where it appears by the law that one has power to kill another he may justify the killing. As, if a sheriff or marshal of this bench be commanded by authority of law to execute a man and he executes him: if an appeal be brought against him, he may justify, * Part of the argument is omitted. — Ed. 416 TUCK V. BKLILES. [CHAP. V. since it appears of record that he had power to kill him ; but if a stranger kill him, he could not justify, since it appears of record that he had no power to kill him. So here he has not alleged that he had any power to kill him, but like the greatest stranger in the world, and therefore he cannot have advantage of the matter of record. Markam, J. The record makes no mention who has power to kill him, for the entry is only sus. per coll. and makes no mention to whom it is delivered, as to the sheriff or to another to make execution; so it does not appear who has power to kill him. Bingham, J. If a sheriff be charged to hang a man and he cuts off his head, I tell you it is no felony, because he had the power to kill him. Pole, J. Yes sir, it is felony, for he had no power to kill him, ex- cept according to the judgment, and if he does it otherwise he does it as a stranger; and therefore it is felony. TUCK V. BELILES. Court of Appeals of Kentucky. [Reported 153 Ky. 848.] HoBSON, C. J. On December 22, 1911, three warrants were issued by the judge of the Butler quarterly court against R. E. Tuck, in which he was charged with a breach of the peace, wilfully shooting his pistol in the streets of Morgantown and assault and battery on his wife. The warrants were placed in the hands of C. V. Beliles, who is the sheriff of Butler County. Beliles placed them in the hands of two of his deputies who undertook to execute them. They telephoned Beliles that they needed help, and he and another deputy then went to assist them in making the arrest. When they reached the house where Tuck was, in making the arrest one of them shot Tuck through the left arm, inflict- ing a serious injury. He brought his suit against the sheriff on his bond to recover for his injury. According to his testimony on the trial, he was at his home, and went upstairs and was sitting on a box examining some tickets which he had when he heard somebody walk in. He looked around and a man shot his pistol and hollered at him, "Throw up your hands." The two deputies came up the stairs and stood near him while the sheriff said to him, "They want you up at the judge's office." He said, "I guess not, I have fixed all of this with Mr. Bradley." One of the dep- uties said, "Bring him on," and he replied, "You just keep your mouth out of this." x\t this the other deputy threw up his pistol and shot him. Mr. Bradley was the county attorney. He testified that Tuck came to his house that morning and that he told Tuck to get on his mule and go up to see his brother and straighten up and he would SECT. I.J TUCK V. BELILES. 417 do the best he could for him after he straightened up; that Tuck said that he was not going an^^where, and that he was going to see Bill Tuck, and was going to kill Ed Waddle before sunset; that he would kill them as fast as they came along. He also told the county attorney that he would kill the officers, and that he was not going to be arrested. The county attorney told the sheriff what he had said when he gave him the warrants and told him to be careful. The two deputies who first went to the house testified that they saw him as they approached the house, and that he ran into the house, and that they then learned that he had arms, and telephoned the sheriflF. They did nothing more until the sheriff came. The sheriif's statement as to what occurred when he got there is in substance that he found the door of the house fas- tened, and after calling to Tuck repeatedly and telling him that he had always been his friend and wished no trouble, he forced the door open; that he could not find Tuck on the first floor of the house and after looking through this, went upstairs ; that he was not to be seen anywhere upstairs; that when he got up there he called out as he had below re- peatedly and finally he struck a match, and looking over into a closet found Tuck hidden there; that when he found him Tuck said," I want you to go away from here, I am not going to be arrested." He said "Elmwood, I have been a friend to you," and that Tuck replied with an oath, and started to make a rush on them sa;\'ing he would kill every one of them; that after calling on him to stop, he drew his pistol, and fired, when he could not stop him in any other way. The testimony of the sheriff is corroborated not only by the three deputies who were present but by a number of persons in the neighborhood who testified to hearing Tuck cursing and threatening the officers that he would kill them. On this evidence the jury found for the defendants. The plaintiff appeals. It is insisted for the plaintiff that the sheriff is Hable because he did not read the warrants to Tuck; but Tuck's own testimony shows that he understood very well what he was arrested for, and he knew that he \ was resisting the sheriff and his deputies. He knew the sheriff very well ' and knew the deputies. He knew the offenses he was charged with, and knew the purpose for which they had come to arrest him. It is true the warrants were not read to him, but he did not give the officers any opportunity to read the warrants. He resisted arrest as soon as they found him and according to the testimony of the officers immedi- ately began an attack upon them. The court by his instruction in suiostance told the jury that they should find for the plaintiff', unless they believed from the evidence that the plaintiff' resisted arrest with force, and in that event the officers had the right to use such force as appeared to them in the exer- cise of a reasonable discretion to be necessary to overcome the force offered by Tuck and protect themselves at his hands, and if they used no more force than was necessary or apparently necessary for this \ 418 PEOPLE V. WARREN. [CHAP. V. purpose, they should find for the defendants. The instructions appear to us to state fairly the law of the case. While an officer has no right to kill a man in order to arrest him for a misdemeanor, it is his duty to meet force with force, and to use such force as is necessary to make the arrest. If in using such force, he is himself placed in peril, he may use such force as is necessary for his self-protection. (Read v. Com., 125 Ky. 126; Stevens v. Com., 124 Ky. 32.) The officer is armed with the authority of the law. It is the dut}' of all good citizens to respect and obey him. If an officer could not meet force with force, desperadoes could never be arrested. It is the duty of the officer to execute his process, and whfen he is resisted he must stand his ground and meet force with force. If the proof for the defendant is true, Tuck's con- duct was entirely without excuse. The evidence of Tuck's threats, made on that morning, and his re- peated declarations that he would not be arrested, were competent to show his state of mind, and these threats having been communicated to the officers, proof of them was admissible in their behalf to show the grounds upon which they acted. On the whole case we find no sub- stantial error in the proceedings. The verdict of the jury is sustained by the evidence. Judgment affirmed. PEOPLE V. WARREN. Supreme Court of New York, 1843. [Reported 5 Hill, 440.] Certiorari to the Oneida general sessions, where the defendant was con\'icted of an assault and battery upon one Johnson, a constable. Johnson arrested the defendant on a warrant issued by the inspectors of election of the city of Utica for interrupting the proceedings at the election by disorderly conduct in the presence of the inspectors. (1 R. S. 137, § 37.) The warrant was regular and sufficient upon its face. The defendant resisted the officer, and for that assault he was indicted. The defendant offered to prove that he had not been in the presence or hearing of the inspectors at any time during the election, and that Johnson knew it. The court excluded the e\'idence, and the defendant was convicted. He now moved for a new trial on a bill of exceptions. Per Curiam. Although the inspectors had no jurisdiction of the subject matter, yet as the warrant was regular upon its face, it was a sufficient authority for Johnson to make the arrest, and the defendant had no right to resist the officer. The knowledge of the officer that the inspectors had no jurisdiction is not important. He must be governed SECT. I.] OYSTEAD V. SHED, 419 and is protected by the process, and cannot be affected by anything which he has heard or learned out of it. There are some dicta the other way; but we have held on several occasions that the officer is protected by process regular and legal upon its face, whatever he may have heard going to impeach it. OYSTEAD V. SHED. Supreme Judicial Court of Massachusetts, 1816. [Reported 13 Ma^s. 520.] Trespass for breaking and entering the plaintiff's dwelling house, taking and carrying away his goods, etc. The defendant Shed justified as a deputy sheriff; and the others, as his assistants, pleaded severally. The questions in the case arose on the replication to the third plea by them respectively pleaded, in which plea each of the said other defendants sets out at large a capim awarded against one Chase, delivered to Shed, an officer ha\'ing authority to serve the same, and alleges that the said officer being about to arrest Chase, he fled into the house of the plaintiff, who, upon a demand by Shed for leave to enter and arrest him, refused admission into the house and shut the outer door thereof; whereupon Shed opened a window, entered the house, and arrested Chase; and that the defendant, being required by Shed, entered the house by the door, which was then opened, etc. The replication, after protesting that the said cajnas was never awarded, etc., alleges that Chase was at the time, and had been for a long time before, a lodger and boarder in the house of the plaintiff, and was quietly taking his repose there as one of his family, when the officer forcibly entered, etc., and then traverses the flight of Chase, as set forth in the bar. To this replication there is a special demurrer. Parker, C. J.^ . . . The fact alleged in the replication is, that Chase was quietly reposing in the plaintiff's house, being a lodger and boarder there when the officer entered. Is this of itself an answer to the bar, which avers that the officer being about to arrest Chase, he fled into the house? This depends upon the relation which Chase had to the family of the plaintiff, for it is very clear that if the plaintiff, or one of his family, had fled into the house to avoid an intended arrest, the officer would have been liable in trespass for entering the house forcibly in pursuit of him. It would not be so, if an arrest had been actually made, and the flight had taken place upon an escape. ^ Part of the opinion, discussing a question of pleading, is omitted. — Ed. 420 STATE V. MAYOR AND ALDKRMEN OF KNOXVILLE. [CHAP. V. The authorities do not clearly show, what persons are considered as belonging to the family of a householder, and so having a right to pro- tection under his castle. The very learned judges Foster, Hale, and Coke, in treating of the inviolability of dwelling houses, say that the outer doors or windows shall not be forced by an officer, in the execution of ci\'il process against the occupier or any of his family, who ha\e their domicil or ordinary residence there: but that the house shall not be made a sanctury for other persons: so that, if a stranger, whose ordinary residence is else- where, upon a pursuit, take refuge in the house of another, the house is not his castle; and the officer may break open the doors or windows in order to execute his process : and if one, upon escape after an arrest, flee into his own house, it shall not protect him, etc. According to these principles, not only the children and the domestic servants of the occupier are of his family, and so entitled to protection; but also permanent boarders, or those who have made the house their home, may properly be considered as a part of the family. The purpose of the law is, to preserve the repose and tranquillity of families within the dwelling house: and these would be as much disturbed by a forcilile entry to arrest a boarder or a servant, who have acquired, by contract express or implied, a right to enter the house at all times, and to remain in it as long as they please, as if the object were to arrest the master of the house or his children. A stranger, or perhaps a visitor, would not enjoy the same protection : for as they have acquired no right to remain in the house, if the occupant should refuse admission to the officer, after his purpose and his authority were made known, the law would consider him as conspiring with the party pur- sued, to screen him from arrest, and would not allow him to make his house a place of refuge. STATE V. MAYOR AND ALDERMEN OF KNOXVILLE. Supreme Court of Tennessee. 1883. [Reported 12 Lea, 146.] Freeman, J., delivered the opinion of the court.^ It appears from this record tliat in the latter part of the year 1882, and first of 1883, the small-pox, as an epidemic, prevailed to a con- siderable extent. The city of Knoxville, as well as the county, thought it their duty, through their authorized agencies, to take active measures to reUeve as well as prevent the spread of the disease botli in the city and the surrounding country. To this end a small-pox hospital was established at the fair-grounds, about two miles from the city, with suita- ^ Part of the opinion is omitted. SECT. I.] STATE V. MAYOR AND ALDERMEN OF KNOXVILLE. 421 ble buildings for receiving infected patients, and two phj'sicians, Drs. Hudo-ins and Shaw, employed, the one by tlie city, the other b\- the count}', to attend patients surtering with the disease. Among tlie pre- cautionary measures taken to prevent the spread of the plague, the clothing, beds, and bedsteads used by persons who had the disease, and either recovered or died, were directed to be burnt, no doubt under the direction of the attending physicians. This, we take it, was done regu- lai'lv and frequently for some months, as often as occasion required. The fair-ground's property consisted of between sixty and sixty-five acres of land, the building being witliin this property, and the infected articles burnt on these grounds, probably in pits dug for the purpose. The burning seems to have been some four hundred yards from the nearest houses, but there appear to have been numerous dwellings occupied about that distan<.'e, and farther off, but still liable, more or less to'be affected by the smoke and the scent from the burning cloth- ing, etc. That this at times was more or less offensive, is probable, if not certain. For a nuisance, the result of this burning and the unpleas- ant effects of the smoke thus generated and disseminated, the defendants are indicted. The jur}- have found the defendants guilty, and on the facts, that is of the existence of the smoke, and of its rendering the occupation of the houses of persons living hard by uncomfortable, and the air less pure temporarily tlian otlierw^ise would have been the case from the nature of their location, there is no ground on which this court could reverse the finding of facts for want of testimony to sustain it. The question is, whether this finding was under a correct statement of the law by the court below, and whether there was a sufficient justi- fication and authority for what was done ; whether his Honor gave defendants the benefit of the rules of law tending to show such justifi- cation and authorit}' for their acts, which are not of themselves denied or serious!}' controverted. The proof very definitely tended to show that burning the articles mentioned was the best means known of preventing the spread of infec- tion, if not the only certain means of doing so, that it was the uniform practice in hospitals where such diseases were being treated, and recog- nized as the accredited mode recommended and endorsed b}' the best lights of the medical profession. If this be so, then the simple question is, whether parties using such means so accredited, ui good faith, shall be held criminally hable if they should produce temporary inconvenience to other parties near by ; for this is the substance of the request refused by his Honor. The loss to the individuals was only a temporary one, by having the air for a time impregnated with smoke, ofljensive though it was ; yet if this was done in order to, and did reasonabl}' tend to, prevent the spread of a loathsome and dangerous disease, b}' which the lives of from twenty-five to fifty per cent of persons attacked are liable to die, as one physician swears in this case, then it is too clear to doubt that the 422 PEOPLE V. FITZGERALD. [chap. V. interest of the life of many cannot be permitted to be perilled that others ina_y enjoy the air untainted by smoke from clothing infected by the disease being burned at a reasonabl}- safe distance from their dwellings. If 3-ou may rightfully destro}- the house in which a man dwells in order to prevent the spread of a fire or the ravages of a pestilence, it follows you may mnch more destroy for a time the salubrit}' of the air, provided it shall tend reasonably to the result demanded by the public interest. We do not deem it necessary to enlarge on such a proposition. The rule applicable to such a case is that, if the act was done by public authority or sanction, and in good faith, and was done for the public safety and to prevent the spread of the disease, and such means used as are usualh" resorted to and approved by medical science in such cases," and was done with reasonable care and regard for the safet\' of others, then the parties were justified in what they did, and the parties inconvenienced could not complain, nor could the state enforce a crimi- nal liabilitj' for results of temporary inconvenience or unpleasantness that accrue from the use of such proper and accredited means for the safety of the community against the spread of disease. The theory of his Honor is the opposite of this, and is erroneous. Let the judgment be reversed and the case remanded for a new trial. PEOPLE V. FITZGERALD. Court of Appeals, New York, 1887. I [Reported 105 A^ 1'. 146.] Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made Jan- uary 11, 1887, which affirmed a judgment of the Court of Oyer and Terminer of the county of Chemung, entered upon a verdict con\dcting the defendant of the crime of body stealing. The facts, as stated in the dissenting opinion of Hardin, J., in the court below, are as follow^s: General Ir^^ne died in the city of San Francisco on the night of November 12, 1882, suddenly, having during the day been out gunning, returning to his home in the evening, after partaking of a light repast, consisting of tea, eggs, cold meat, and bread and butter, prepared by his wife Phnebe, who with their daugh- ter, Mrs. INIerkle, were occupying apartments together. Soon after partaking of the refreshments he became distressed and made com- plaints of internal pains. The daughter left for a physician, and, upon returning, they found that death had taken place. The remains were taken that night to the rooms of an undertaker and they were sub- sequently embalmed, and on the fourth of December were conveyed SECT. 1.] PEOPLE V. FITZGERALD. 423 by the widow and daughter to the city of Elmira, where they were interred in Woodlawn Cemetery. About a year after the death inquiry was instituted as to the cause thereof, and the defendant employed a detective named Nealson, who visited the city of Elmira, and returned to San Francisco and made a report to the defendant.^ The defendant and Nealson \isited the office of Dr. Reilly, the coro- ner of the county of Chemung, and held a conversation in regard to the circumstances attending the death of the deceased. After that interview Coroner Reilly determined to proceed in the premises. He visited Nathan Baker, superintendent of Woodlawn Cemetery, at his house and said to him, "That he had evidence to satisfy him that a wrong had been perpetrated, or sufficient to warrant him in making an examination of the body of General Ir\ane. . . . That he had suffi- cient grounds of acting and he asked Baker, the superintendent, to act," showing him one of the affidavits and stating that he had others. Thereupon the superintendent determined to act in the premises and facilitate the proceedings in behalf of the coroner. Thereupon direc- tions were given Abbott, the sexton, to open the grave and remove the remains to the vault in the cemetery for the purpose of an examina- tion. Reilly, the coroner, also applied to Dr. Wey to become one of two physicians to make the examination, and on the evening of the eighth of April Reilly \asited the office of Wey, with Nealson, avowing that he had full authority in the premises "to conduct an examination and have an examination made by the physicians." The hour was fixed for an examination at ten the next morning and Reilly informed Wey that he would " notify Dr. Squires . . . and we might expect to meet at the receiving vault in Woodlawn Cemetery" at ten the next morn- ing. Accordingly they met the next morning at the recei\ang vault in Woodlawn Cemetery, where the physicians found Coroner Reilly and Nealson and Baker and Abbott. The body was found lying in a coffin or casket on the floor of the receiving vault. The coroner made a minute of the nature of the covering of the coffin and its handles and the plate and the descriptions of every other matter connected there- with. Drs. Wey and Squires raised the head and shoulders of the body and after carefully scrutinizing the face and the coroner making a minute thereof, a careful examination was made of the head, and the stomach and duodenum, and certain other parts of the body were re- moved and delivered to Dr. Reilly, who placed them in a vessel he had prepared for that purpose. After the examination the coroner went over to the house of Abbott, the sexton, in the cemetery grounds, where Baker suggested the pro- priety of having a coroner's jury and Wey replied: "It is too late for such a proceeding." ^ The statement of facts has been abridged. — Ed. 424 PEOPLE V. FITZGERALD. [CHAP. V. No Jury was, in fact, sworn to hokl an inquest. The remains were recoffined and returned to the grave, except the parts removed there- from as already stated. Rapallo, J. The facts of this extraordinary case are fully stated in the dissenting opinion of Hardin, J., at General Term. We should content ourselves with concurring in that opinion, were it not that it simply orders a new trial for errors in the charge, for refusals to charge, while we think that it should have gone farther and have held that the facts of the case did not establish a crime punishable under the statute against body stealing (Penal C^ode, §311), under which the prisoner was indicted and convicted, and which is in the following words: "Sec. 311. A person who removes the dead body of a human being, or any part thereof, from a grave, vault, or other place where the same has been buried, or from a place where the same has been deposited while awaiting burial, without authority of law, with intent to steal the same, or for the purpose of dissection, or for the purpose of procur- ing a reward for the return of the same, or from malice or wantonness, is punishable by imprisonment for not more than five years, or by a fine not exceeding one thousand dollars, or both." This statute describes every kind of "body stealing" known to the law. The addition inserted in the Penal Code, " or for the purpose of obtaining a reward for the same," was the only substantial change made since the Re^^sed Statutes, in the definition of this heinous crime. The intent of the statute is manifest. It certainly was not intended to apply to exhumations made by legally constituted public authorities for the purpose of ascertaining whether crime has been committed in producing the death of the person whose body is exhumed. When the exhumation is made, not secretly, but publicly, on open applica- tion to the officer of justice charged with the duty of inquiring into the cause of death of any person whose body is brought within his juris- diction, it is a total misapplication of the statute against body stealing to use it for the purpose of imposing its punisliment on all persons con- cerned in the exhumation, in case any proceedings of the officer, under whose direction it was made, should be found to be irregular. The irregularity alleged in this case in the conduct of the coroner is that he did not impanel a jury l^efore he ordered the post mortem examination to be made by the physicians whom he summoned for the purpose. A sufficient nimiber of persons to form a jury was assembled by direction of the coroner, but the jury was not drawn and impaneled. I refer to the opinion of Judge Hardin as correctly stating the facts, which we have verified by an examination of the testimony. The point of law is debatable whether a post mortem should take place before the coroner has impaneled a jury. But it is settled that the post mortem should not be in the presence of the jurj*, and that they are to be instructed by the testimony of the physicians who are designated by the coroner to make it. The dissection by order of the SECT. I.] AXTELL'S CASE. 425 coroner is expressly aiitliorized. (Penal Code, § 308 ; Crisfield v. Ferine, 15 Hun, 202; affirmed, 81 N. Y. 622.) If, as in England at one time, the findings of the coroner's jury were to stand as an indictment by a grand jury, some point might be made on behalf of the accused, as to the validity of the inquest in such a case as this. But to resort to those questions for the purpose of sup- porting an indictment for body stealing, under the circumstances of this case, is quite unreasonable. In the present case the defendant communicated to the coroner, in the form of affida\ats (whether legally authenticated or not is immaterial) information which should have in- duced any magistrate, not neglectful of his duty, to believe that he ought to investigate the matter presented to him. Those affidax-its made a strong case to lead the coroner to believe that a murder had been committed, and that an examination of the body, which was within his jurisdiction, would disclose the fact. The defendant sought an examination of the body. She asked the coroner to do his duty, and to examine the body. Whatever motives may have influenced her, no one can suppose that, however unfounded her belief might have been, there was not sufficient in the papers she presented to the coroner, to justify his action, and there is no pretense that the affida\at of Dr. Wooster, which she produced, had been in any manner influenced by her. Her silence during several years after the death of General Irxnne, is the main argument against the bo7}a fides of her charge, and it is said that her desire was not so much the punishment of crime, as to obtain some pecuniary advantage for herself by making defamatory charges. However this may be, if she committed a wrong, it was not the crime of body stealing, and on this ground the con\action, and the judgment of the General Term affirming it, should be reversed and the prisoner discharged. All concur. Judgment reversed. AXTELL'S CASE. All the Judges of England, 1660. [Report ed J. Krl. 1.3.1 Memorandum, That upon the tryal of one Axtell, a soldier, who commanded the guards at the king's tryal, and at his murder; he justi- fied that all he did was as a soldier, by the command of his superiour Officer, whom he must obey or die. It was resolved that was no excuse, for his Superiour was a Traitor, and all that joyned with him in that Act were Traytors, and did by that approve the Treason; and where the command is Traiterous, there the Obedience to that Command is also Traiterous. 426 UNITED STATES V. CLARK. [CHAP. V. UNITED STATES v. CLARK. U. S. Circuit Court, E. Dist. Michigan. 1887. [Reported 31 Federal Reporter, 710.] Brown, J. In view of the fact that this was a homicide committed by one soldier, in the performance of his alleged dut}', upon another soldier, within a militar}' reservation of the United States, I had at first some doubt whether a civil conrt could take cognizance of the case at all ; bat, as crimes of this nature have repeatedly been made the subject of inqniry by civil tribunals, I have come to the conclusion that I onght not to decline to hear this complaint. Indeed, it is difficult to see how I could refuse to do s^ wif.hout abdicating that supremacy of the civil power which is a fundamental principle of the Anglo-Saxon polity. While there is no statute expressly conferring such jurisdiction, there is a clear recognition of it in the fifty-nintli article of war, which pro- vides that '■' when any officer or soldier is accused of a capital crime, or of an\' offence against the person or property of any citizen of any of the United States, which is punishable by the laws of the land, the commanding officer, and the officers of the regiment, troop, battery, company, or detachment to which the person so accused belongs, are required (except in time of war), upon application duly made bj' or in behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magistrate, and to aid the officers of justice in apprehending him and securing him, in order to bring him to trial." This article makes no exception of crimes committed by one soldier upon another, nor of cases where there is concurrent jurisdiction in the militar}- courts. Tytler, in his work upon Military Law, saj-s : "The martial or military law, as contained in the mutiny act and articles of war, does in no respect supersede or interfere with the civil or munici- pal laws of the realm. . . . Soldiers are, equally with all other classes of citizens, bound to the same strict observance of the laws of the country, and the fulfilment of all their social duties, and are alike amenable to the ordinary civil and criminal courts of the country for all offences against those laws, and breaches of those duties." In the case of U. S. v. Cornell, 2 Mason, 61, 91, Mr. Justice Story took cognizance of a murder committed l^y one soldier upon another in Fort Adams, Newport harbor. The case was vigorouslj' contested, and the point was made that the State courts had jurisdiction of the offence, but there was no claim that there was not jurisdiction in some civil tril)unal. A like case was that of a murder committed in Fort Pulaski, at the moutii of the Savannah River, and tried in 1872 before Mr. .Justice Woods and Judge Erskine. U. S. v. Carr, 1 Woods, 480. No question was raised as to the jurisdiction. The subject of the civil SECT. I.] UNITED STATES V. CLA.RK. 427 responsibility- of the array was ver}- carefully considered by Attorney- General Cnshing, in Steiner's Case, 6 Ops. Atty.-Gen. 413, and the conclusion reached that an act criminal both by military and general law is subject to be tried either by a military or civil court, and that a conviction or acquittal by the civil authorities of the offence against the general law does not discharge from responsibility for the military offence involved in the same facts. The converse of this proposition is equally true. The character of the act involved in this case presents a more seri- ous question. The material facts are undisputed. There is no doubt that the deceased was killed by the prisoner under the performance of a supposed obligation to prevent his escape by any means in his power. There is no evidence that tlie prisoner fired before the necessity for his doing so had become apparent. Stone was called upon several times to halt, with a hail by the quartermaster sergeant that there was " a load after him." Duff, his nearest pursuer, was not gaining upon him, and in another half-minute he would have scaled the two fences between him and the highwa}', and would probabl} have been lost in the houses that lie on the other side of the street. A court of inquiry, called for the purpose of fully investigating the circum- stances, was of the opinion that if Clark had not performed his duty as efficiently as he did, bj- firing on deceased, he certainly would have effected his escape ; and found that no further action was necessary in the case. The prisoner and the deceased had always been good friends, and it is at least doubtful whether Clark recognized him at the time of firing the fatal shot. The prisoner has heretofore borne a most excellent reputation, was never court-martialled nor punished, and was pronounced by all the witnesses who testified upon the subject to be an exceptionallj' good soldier. There is not the slightest reason to suppose that he was not acting in obedience to what he believed to be his duty in the premises. There was some conflicting testimony as to whether he was standing or kneeling at the time he fired, but I am not able to see its materialit}'. If he was authorized to shoot at all, he was at liberty to take such position as would insure the most accurate aim, whether his object was to hit the deceased in the leg or in the bod}'. Clark says that he aimed low, for the purpose of merel\' disabling him, but, owing to a sudden descent in the ground, the shot took effect in the back instead of the leg. For the purpose of this examination, however, I am bound to presume that he intended to kill, as a man is always presumed to intend the natural and probable consequences of his acts. The case, then, reduces itself to the naked legal proposition whether the prisoner is excused in law in killing the deceased. The general rule is well settled, by elementary writers upon criminal law, that an officer having custody of a person charged with felony may take his life, if it becomes absolutely necessary to do so to prevent his escape ; but he may not do this if he be charged simply with a misde- meanor ; the theorv of the law being that it is better that a misdemeau- 428 UNITED STATES V. CLARK. [CHAP. V. ant escape than that human life be taken. I doubt, however, whether this law would be strictly applicable at the present da}'. Suppose, for example, a person were arrested for petit larcen}-, which is a felony at the common law, might an ofheer under any circumstances be justified in killing him? I think not. The punishment is altogether too dispro- |)ortioned to the magniUide of the otfence. Perhaps, under the statute of this state. 2 How. St. § 9430, wherein a felony is "construed to mean an offence for which the offender, on conviction, shall be liable by law to he punished by death, or by imprisonment in the state prison," the principle might still be applied. If this statute were applicable to this case, it would operate as a justification, since Stone had been convicted and sentenced to hard labor in a military prison. Under the recent case of ^c parte Wilson, 114 U. S. 417, 5 Sup. Ct. Rep. 935, it was adjudged by the Supreme Court, upon full consideration, that a crime punishable by imi)risonment for a term of years at hard labor was aq '• infamous crime," within the meaning of the Constitution. Manifestly, however, the case must be determined by different con- siderations. Stone had been court-martialled foi a military otfence, in which there is no distinction between felonies and misdemeanors. His crime was one wholly unknown to the common law, and the technical definitions of that law are manifestly inappropriate to cases which are not contemplated in the discussion of common-law writers upon the sub- ject. We are bound to take a broader view, and to measure the rights and liabilities of the prisoner by the exigencies of the military service, and the circumstances of the particular case. It would be extremely unwise for the civil courts to la}- down general principles of law which would tend to impair the efficiency of the military arm, or which would seem to justify' or condone conduct prejudicial to good order and mili- tar}' discipline. An arm}' is a necessity — perhaps I ought to say an unfortunate necessit}' — under every system of government, and no civilized state in modern times has been able to dispense with one. To insure efficiency, an army must be, to a certain extent, a despotism. Each officer, from the general to the corporal, is invested with an arbi- trary power over those beneath him, and the soldier who enlists in the army waives, in some particulars, his rights as a civilian, surrenders his personal liberty during the term of his enlistment, and consents to come and go at the will of his superior officers. He agrees to become amenable to the railitar}' courts, to be disciplined for offences unknown to the civil law, to relinquish his right of trial by jur}', and to receive punishments which, to the civilian, seem out of all proportion to the magnitude of the offence. The articles of war, which he takes an oath, upon his enlistment, to observe, are in fact a military code of Draconic severit}', and authorize harsh punishments for offences which seem to be of a trivial nature. Thus, by the articles of war, all the following crimes are punishable by death, or such other punishment as a court-martial may direct: strik- ing a superior officer; drawing or lifting up a weapon, or offering any SECT. I.] UNITED STATES V. CLARK. 429 violence against him ; or disobevino; any lawful command. Article 21. Exciting or joining in any mntin}- or sedition. Article 22. Failing to use his utmost endeavors to suppress such mutiny or sedition, or failing to give information thereof to his commanding oftlcer. Article 23. A sentinel sleeping upon his post or leaving it before he is relieved. Article 39. Occasioning false alarms in camp or quarters. Article 41. Misbehaving himself before the enemy, i-unning away, or shamefully abandoning any post which he is commanded to defend ; speaking words inducing others to do the like ; casting away his arms or annnu- uition, or quitting his post or colors to plunder or pillage. Article 42. Compelling the commander of any post to surrender it to the enemy, or to abandon it. Article 43. Making known the watchword to an}' person not entitled to receive it. or giving the watchword different from that which he has received. Article 44. Relieving the enemy with money, victuals, or ammunition, or harboring or protecting an enemy. Article 45. Holding correspondence or giving intelligence to an enem}-. Article 46. Deserting in time of war. Article 47. Advising or per- suading another to desert in time of war. Article 51. Doing violence to any person bringing provisions or other necessaries to camp or quarters of troops in foreign parts. Article 56. Forcing a safeguard in a foreign territory or during a rebellion. Article 57. ISume of these articles are applicable onh' to a state of war, but some of them treat of offences which may equally well be committed in lime of i)eace. Besides these, there are a number of minor ofiences punishable as a court-martial may direct, and a general and very sweeping article (No. G2) providing that all crimes not cajntal, and all disorders and neglects to the prejudice of good order and military discipline, shall be justiciable by a court-martial, and punishable at the discretion of the court. Now, while the punishment in Stone's case seems to the civilian quite disproportionate to the character of his offence, as charged in the specifications, which was no more nor less than the utterance of a malicious falsehood, when gauged by the penalties attached by Congress to the several offences contained in the articles of war, it does not seem so excessive ; at an}' rate, it was the lawful judgment of a court having jurisdiction of his case, and it was his cUitv to abide by it, or pursue his remed}- in the method provided l)y law. In seeking to escai)e, the deceased was undoubtedly guilty of other conduct prejudicial to good order and military discipline, and was liable to such further punishment as a court-martial might inflict. In suffering him to escape, the prisoner became amenable to article 69, and, failing to use his utmost endeavor to prevent it, was himself subject to such punishment as a court-martial might direct. Did he exceed his authoritv in using his musket ? I have made the above citations from the military code to show that the common-law distinction between felonies and misdemeanors is of no possible service in gauging the duty of a milifary guard with respect to a soldier in the act of escaping. His position is moi'e nearly analogous to that of an armed sentinel stationed u[)on the walls of a [jenitentiarj' 430 UNITED STATES V. CLARK. [CHAP. V. to prevent the escape of convicts. The penitentiary — and for this purpose we may use the house of correction in Detroit as an example — - may contain convicted murderers, felons of every grade, as well as others charged with vagrancy or simple breaches of the peace, and criminals of all descriptions between the two. If the guard sees one of those prisoners scaling the wall, and there be no other means of arresting him, may he not fire upon him without stopping to inquire whether he is a felon or a misdemeanant? If he prove to be a felon, he will be fully justified ; if he prove to be a misdemeanant, is he therefore guilty of niurdcr? There are undoubtedly cases where a person who has no mal- ice in fact may be charged with malice in law, and held guilty of murder through a misapprehension of the law. Thus, if a sheriff charged with the execution of a malefactor by hanging should carry out the sentence by shooting or beheading ; or, commanded to hang upon a certain day, should hang upon another day ; or if an unauthorized person should execute the sentence, — it would probably be murder at common law. But these cases are an exception to the general rule, that actual malice must exist to justify a conviction for murder. While human life is sacred, and the man who takes it is held strictly accountable for his act, a reputable citizen, who certainly does not lose his character as such by enlisting in the army, ought not to be branded as a murderer upon a mere technicality, unless such technicality be so clear as to admit of no reasonable doubt. Thus, if a sentinel stationed at the gate of a fort should wantonly" shoot down a civilian endeavoring to enter in the da3time, or an officer should recklessly slay a soldier for some mis- conduct or breach of discipline, no supposed obligation upon his part to do this would excuse so gross an outrage. In this connection it is urged by the defence that the finding of the court of inquiry acquitting the prisoner of all blame is a complete bar to this prosecution. I do not so regard it. If the civil courts have jurisdiction of murder, notwithstanding the concurrent jurisdiction by court-martial of military otfences, it follows logically that the proceed- ings in one cannot be pleaded as a bar to proceedings in the other ; and if the finding of such court should conflict with the well-recognized principles of the civil law, I should be compelled to disregard it. State V. Rankin, 4 Cold. 145. At the same time I think that weight should be given, and in a case of this kind great weight, to the finding, as an expression of the opinion of the militar}' court of the magnitude of Stone's offence, and of the necessity of using a musket to prevent his escape. I am the more impressed witli this view from the difficulty of applying common law principles to a case of this description. There is a singular nnd almost total absence of authority upon the subject of the power of a military guard in time of peace. But considering the nature of military government, and the necessity of maintaining good order and discipline in a camp, I should be loth to say that life might not be taken in suppressing conduct prejudicial to such discipline. In charging the jury in U. S. v. Carr, 1 Woods, 484, Mr. Justice SECT. I.] UNITED STATES V. CLAKK. 431 Woods instructed them to ''inquire whether, at the moment he fired his piece at the deceased, with his surroundings at that time, he had rea- sonable ground to believe, and did believe, that the killing or serious wounding of the deceased was nec.essary to the suppression of a mutiny then and there existing, or of a disorder which threatened speedily to ripen into a mutiny. If he had reasonable ground so to believe, and did so believe, then the killing was not unlawful. . , . But it must be understood that the law will not require an officer charged with the order and discipline of a camp or fort to weigh with scrupulous nicety the amount of force necessary to suppress disorder. The exercise of a reasonable discretion is all that is required." So, in the case of McCall v. McDowell, 1 Abb. (U. S.) 212, 218, it is said that " except in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think that the law should excuse the military subordinate when acting in obedience to the order of his com- mander. Otherwise he is placed. in the dangerous dilemma of being liable in damages to third persons for obedience to an order, or to the loss of his commission and disgrace for disobedience thereto. . . . The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in the army. If every subordinate officer and soldier were at libert}' to question the legalit\- of the orders of the com- mander, and obey them or not as he may consider them valid or invalid, the camp would be turned into a debating school, where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions." It is true this was a civil case for false imprisonment, and these observations were made with reference to a question of malice, which was material as bearing upon the plaintiffs right to punitory damages, as it is also a necessary ingredient in the definition of murder. The question of the civil responsibilit}' of a naval officer (and his criminal responsibility seems to be the same) was considered b^' the Supreme Court in Wilkes v. Dinsman, 7 How. 89, which was an action of trespass against Commodore Wilkes for causing the plaintifl!" to be whipped and imprisoned for disobedience of orders, near the Sandwich Islands. In discussing the responsibility of the commanding officer of a vessel of war, Mr. Justice Woodbury observed : "■• In respect to those compulsory duties, whether in re-enlisting or detaining on board, or in punishing or imprisoning on shore, while arduously endeavoring to per- form them in such a manner as might advance the science and com- merce and glory of his country, rather than his own personal designs, a public officer, invested with certain discretionar}' powers, never has been, and never should be, made answerable for any injury, when acting within the scope of liis authorit}', and not influenced hy malice, corruption, or cruelty. . . . The officer, being intrusted with a dis- cretion for public purposes, is not to be punished for the exercise of it, unless it is first proved against him, either that he exercised the power 432 UNITED STATES V. CLARK. [chap. V. V condtled to bim in cases without his jurisdiction, or in a manner not confided to him, as, with malice, cruelty, or wilful oppression, or, in the words of Lord Mansfield, that he exercised it as if ' the heart is wrong.' In short, it is not ei^ough to show that ho committed an error in judgment, but it must have been a malicious and wilful error." The same principle was applied in the criminal case of Riggs r. State, 3 Cold. 85. Riggs was a private soldier who had been convicted of Muirder in killing a man while acting under the orders of his superior officer. The court held that an order illegal in itself, and not justifiable by the rules and usages of war, so that a man of ordinary sense and un- derstanding would know, when he heard it read or given, that the ordei' was illegal, would afford the private no protection for a crime under such order ; but that an order given by an officer to his private which does not expressly and clearly show on its face, or the body thereof, its own illegality, the soldier would be bound to obey, and such order would be a protection to him. I have no doubt the same principle would apply to the acts of a subordinate officer, performed in compliance with his supposed duty as a soldier; and unless the act were mauifestl}' beyond the scope of his authority, or, in the words used in the above case, were such that a man of ordinary sense and understanding would know that it was illegal, that it would be a protection to him, if he acted in good faith and without mahce. As there is no reason in this case to suppose that Clark was not doing what he conceived to be his duty, and the act was not so clearly illegal that a reasonable man might not suppose it to be legal, — indeed, I incline to the opinion that it was legal, — and as there was an entire absence of malice, I think he ought to be discharged. But, even if this case were decided upon common-law principles, the result would not be difl^erent. By the statutes of the State in which the homicide was committed, a felony is defined to be any crime punishable by imprisonment \n the State's prison. Stone had been convicted of a military offence, and sentenced to hard labor in the military prison for two years, and, so far as the analogies of the common law are applicable at all, he must be considered, in a case of this kind, as having been convicted of a felony. It may be said that it is a question for a jurv, in each case, whether the prisoner was justified by the circumstances in making use of his musket, and if this were a jury trial I should submit that question to them ; but as I am bound to find as a matter of fact that there is reasona- ble cause to believe the defendant guilty, not merely of a homicide, but ot a felonious homicide, and as I would, acting in another capacity, set aside a conviction, if a verdict of guilty were rendered, I shall assume the responsibility of directing his discharge.* ' See also Com. v. Shortall, 206 Pa. 165. — Ed. SECT. II.] HANDCOCK V. BAKER. 433- SECTION II. « Authorltij to Act. HANDCOCK V. BAKER. Common Pleas, 1800. [Reported 2 B & P. 260.] Trespass for breaking the plaintiff's dwelling house and assaulting him therein, and dragging him out of bed, and forcing him without clothes out of his house along the public street, and beating and im- prisoning him without cause. Two of the defendants suffered judgment hy default, and the other two pleaded, 1st, not guilty: 2dly, that the plaintiff' in the said dwelling house broke the peace and assaulted his wife, and purposed to have feloniously killed and slain her, and was on the point of so doing; and that her life being in great danger she cried murder and called for assistance; whereupon the defendants, for the preservation of the peace, and to prevent the plaintiff' from so killing and slaying his wife, and committing the said felony, endeavored to enter by the"' door, and knocked thereat; and because the same was fastened, and there was reasonable cause to presume that the wife's life could not have been otherwise preserved than by immediately breaking open the door and entering the said dwelling house, and they could not otherwise obtain possession, they did for that purpose break and enter the said dwelling house, and somewhat break, etc., doing as little damage as possible, and gently laid hands on the plaintiff, and prevented him from further assaulting and feloniously killing and slaving his said wife; and for the same purpose and also for that of taking and delivering the plaintiff to a constable, to be by him taken before a justice, and dealt with according to law, kept and detained him a short and reasonable time in that behalf, and because he had not then proper and reasonable clothes on him, took their hands off from him, and permitted him to enter a bed-chamber, and to remain there a reasonable time, that he might put on such clothes, which he might have done; and because he did not nor would so do, but wholly refused and went into bed there, and remained there at the end of such reasonable time, and would not 434 HANDCOCK V. BAKER. [CHAP. V. quit the same, although thereto requested, the defendants for the same purposes as they so kept and detained the plaintiff as above- mentioned, there being then no reasonable ground for presuming that he had changed his purpose of further assaulting and feloniously slajyang his said wife, entered the bed-chamber in order for those purposes to take him therefrom, whereupon the plaintiff assaulted and would have beat the said defendants if they had not defended themselves, which they did, and if any damage happened to the plaintiff it was occasioned by his own assault, and the defendants for the purposes in that behalf aforesaid, gently laid hands upon the plaintiff and took him from the bed and out of the dwelling house along the public streets for a rea- sonable time, and kept and detained him for a short and reasonable time for those purposes, till they could find a constable, and as soon as they could find a constable delivered him to the constable for the purpose in that behalf aforesaid. The plaintiff replied de injuria sua propria, and by way of new assignment pleaded, that he sued out his writ and declared as well for the trespasses justified, as also for that the defendants at the times when, etc., beat and ill-treated the plaintiff with much greater violence and imprisoned him for a longer time than was necessary and proper for any of the purposes in the plea mentioned. Issue having been joined on the replication and new assignment, the cause was tried before Grose, J., at the last spring assizes for Norfolk, when the jury found for the plaintiff on the general issue, and for the defendants on the special justification. In Easter term last a rule Nisi was obtained calling on the defendants to show cause why the judgment for the defendants on the special justification should not be arrested, and a verdict entered for the plaintiff on the general issue, with Is. damages. Lord Eldon, C. J. If the reasoning be good that a wife ought to apply for assistance to those courts where the law has pro\'ided assist- ance for her, it will equally apply to the first entry of the house by the defendants, as to the subsequent assault and imprisonment which is stated to have taken place in the bedroom. I think, however, that 1 a wife is only bound to apply to those remedies, where it is probable that the injury to be apprehended will be prevented by such applica- tion. In this case the plaintiff being about to commit a felony by killing and slaN-ing his wife, the defendants interfered by breaking and enter- ing the house in order to prevent the execution of that intent: and ' " for the same purposes," that is, with a \new to prevent the plaintiff from killing and slaying his wife, they afterwards committed the injury complained of in the bedroom, into which they had permitted him to enter in order to put on necessary clothes. It is stated that there was no rcasonal>le ground for presuming that the plaintiff had changed his purpose ; and it is argued that it ought to have been averred that his purpose actually continued: but if the preceding allegation be true. SECT. II.] HANDCOCK V. BAKER. 435 that the defendants entered the bedroom for the same purposes for which they had previously entered the house, the latter allegation was unnecessary; since the averment that it was for the same purposes sufficiently brought the question before the jury, Whether or not the defendants went into the bed-chamber and detained the plaintiff for the purpose of preventing him from killing and slaying his wife? It is not difficult to conceive that under some circumstances it might be more especially the defendant's duty to interfere in that manner. Suppose A endeavor to lay hold of B who is in pursuit of C with an intent to kill him, and B thereupon ceases to pursue ^with the \dew of effecting his purpose with more cunning, the act of ceasing to run, so far from being evidence of an intention to desist from his purpose, might afford strong e^^dence of an intention to prosecute it with more effect; in which case the detention of B would be justified. In this case the jury were competent to consider whether under all the cir- cumstances of the case, including the presence or absence of the wife, the plaintiff got into bed with a view of more effectually executing his intent to kill liis wife. In fact the jury have found that the defendants kept and detained the plaintiff after he had gone into the bedroom for the same purposes for which they kept and detained him before. With respect to the averment which has been supposed to be necessary, it is sufficient to answer, that after verdict it must be presumed that everything is proved which is necessary to support the verdict; and the jury have found that it was necessary for the preservation of the woman's life that the defendants should do what they did. Heath, J. I am of the same opinion. It is a matter of the last con- sequence that it should be known upon what occasions bystanders may interfere to prevent felony.^ In the riots which took place in ^ Indeed there seems to be very high authority for the interference of private indi- viduals in case of riot, though no felony be committed. The question underwent a very solemn discussion in 1597 (39 Eliz. at which time the country was in a very unquiet state,) before all the judges in a case which is called "Case of armes," Popk: 121, and is as follows: "Upon an assembly of all the justices and barons at Sergeant's Inn this term, on Monday the 15th day of April, upon this question moved by Anderson, C. J., of the Common Bench; Whether men may arm them- selves to suppress riots, reljellions, or to resist enemies and to endeavour themselves to suppress or resist such disturbers of the peace or quiet of the realm? And upon good deliberation it was resolved by them all, that every justice of peace, sheriff and other minister or other subject of the king where such accident happen may do it; and to fortify this their resolution, they perused the statute of 2 Ed. 3. 3. which enacts, that none be so hardy as to come with force or bring force to any place in affray of the peace, nor to go or ride armed night nor day, unless he be a servant to the king in his presence, and the ministers of the king in the execution of his pre- cepts, or of their office and those who are in their company assisting them, or upon cry made for weapons to keep the peace, and this in such places where accidents happen, upon the penalty in the same statute contained; whereby it appeareth that upon cry made for weapons to keep the peace, every man where such accidents hap- pen for breaking the peace, i^ay by the law arm himself against such evil-doers to keep the peace. But they take it to be the more discreet way for every one in such 436 HANDCOCK V. BAKER. [CHAP. V. the year 1780, this matter was much misunderstood, and a general persuasion prevailed that no indifferent person could interpose without the authority of a magistrate; in consequence of which much mischief was done, which might otherwise have been prevented. In this case the defendants broke and entered the plaintiff's house in order to prevent the commission of murder, and that seems to have been ad- mitted to be a good justification. The only dispute therefore turns on the propriety of their conduct towards the plaintiff after they had suffered him to go into the bedroom. Now 1 tliink that enough is stated in the justification to support the verdict, since the jury have thought that the conduct of the defendants was right. After verdict we may suppose anything. We may suppose that the plaintiff's passion continued, and that he again declared that he would kill his wife. RooKE, J. I am of the same opinion. It is highly important that bystanders should know when they are authorized to interfere. In this case the life of the wife was in danger from the act of the husband. The defendants therefore were justified in breaking open the house, and doing what was necessary for the preservation of her life. The jury find that they have done this. Chambre, J. There is a great difference between the right of a pri- vate person in cases of intended felony and of breach of the peace. It is lawful for a private person to do anything to prevent the perpetra- tion of a felony. In this case it is stated that the plaintiff purposed feloniously to kill and slay his wife, to prevent which the defendants interfered in the manner stated in the plea. The justification has been found by the verdict; and the defendants therefore are entitled to the judgment of the court. Rule discharged. a case to attend and be assistant to the justices, sheriffs, or other ministers of the king in the doing of it." This case is spoken of with approbation by the judges in the great case of Messenger and others, Kel. 76, and its principle is atlopted by Hawkins in his pleas of the crown, lib. 1, c. 6.5, s. 11, where he says, "it hath been holden that private persons may arm themselves in order to suppress a riot, from whence it seems clearly to follow that they may also make use of arms in the suppress- ing of it if there be a necessity for so doing." He adds indeed, that it seems hazard- ous for private persons to go so far in common cases, and that such violent methods seem only proper against such riots as savour of rebellion. SECT. II.J POND V. PKOPLE. 4? X REX V. SMITH. Old Bailey. 1804. [Reported 1 Rtiss. Cr. <|- 3L 458.] The neighborhood of Hammersmith liad been alarmed b}' what was supposed to be a ghost ; the prisoner went out with a loaded gun to take the ghost ; and, upon meeting with a person dressed in white, immediately shot him. M'DoNALD, C. B., RooKE and Lawrence, JJ., were clear that this was murder, as tlie person who appeared as a ghost was only gniltv of a misdemeanor ; and no one might kill him, though he could not otherwise be taken. POND V. PEOPLE. Supreme Court of Michigan, 1860. [Reported 8 Mich. L'SO.] The plaintiff in eriT)r was tried on an information for the murder of one Isaac Blanchard, and con\'icted of manslaughter.^ Campbell, J. The essential difference between excusable and justi- fiable homicide rests not merely in the fact that at common law the one was felonious, although pardoned of course, while the other was innocent. Those only were justifiable homicides where the slayer was regarded as promoting justice, and performing a public duty; and the question of personal danger did not necessarily arise, although it does generally. It is held to be the duty of every one who sees a felony attempted by \'iolence, to prevent it if possible; and in the performance of this duty, wliich is an active one, there is a legal right to use all necessary means to make the resistance effectual. Where a felonious act is not of a ^^olent or forcible character, as in picking pockets, and crimes partaking of fraud rather than force, there is no necessity, and therefore no justification, for homicide, unless possibly in some exceptional cases. The rule extends only to cases of felony; and in those it is lawful ' The evidence, except so far as it is stated in the opinion, and part of the opinion in which the question of self-defense is discussed, are omitted. — Ed. 438 POND V. PEOPLE. [chap. V. to resist force by force. If any forcible attempt is made, with a felonious intent against person or property, the person resisting is not obliged to retreat, but may pursue his adversary, if necessary, till he finds himself out of danger. Life may not properly be taken under this rule where the evil may be prevented by other means within the power of the person who interferes against the felon. Reasonable apprehension, however, is sufficient here, precisely as in all other cases. It has also been laid down by the authorities, that private persons may forcibly interfere to suppress a riot or resist rioters, although a riot is not necessarily a felony in itself. This is owing to the nature of the offense, which requires the combination of three or more persons, assembling together and actually accomplishing some object calculated to terrify others. Private persons who cannot otherwise suppress them, or defend themselves from them, may justify homicide in killing them, as it is their right and duty to aid in preserving the peace. And perhaps no case can arise where a felonious attempt by a single indi- \adual will be as likely to inspire terror as the turbulent acts of rioters. And a very limited knowledge of human nature is sufficient to inform us, that when men combine to do an injury to the person or property of others, of such a nature as to involve excitement and provoke re- sistance, they are not likely to stop at half way measures, or to scan closely the dividing line between felonies and misdemeanors. But when the act they meditate is in itself felonious, and of a violent character, it is manifest that strong measures will generally be required for their effectual suppression; and a man who defends himself, his family, or his property, under such circumstances, is justified in making as complete a defense as is necessary. When we look at the facts of this case, we find very strong circum- stances to bring the act of Pond within each of the defenses we have referred to. Without stopping to recapitulate the testimony in full or in detail, we have these leading features presented : Without any cause or provocation given by Pond, we find Plant, Robilliard, and Blanchard, combining with an expressed intention to do him personal violence. On Thursday evening this gang, with from fifteen to twenty associates, hav-ing been hunting for Pond, found him at a neighbor's, and ha\'ing got him out of doors, surrounded him, while Plant struck him with his fist, and kicked him in the breast, with insulting language, evidently designed to draw him into a fight. He escaped from them, and ran away into the woods, and succeeded in avoiding them that night. The same night they tore down the door of the net-house, where his servants were asleep, in search of him ; and not finding him there, went to the house, the whole rabble being with them, and wanted Pond, and expressed themselves determined to have him; but refused to tell his wife what they wanted of him. Not finding him there, they started off elsewhere in search of him. This was between nine and ten o'clock at night. About noon of Friday, Plant and Blanchard met Pond, when SECT. II.] POND V. PEOPLE. 439 Plant threatened again to whip him ; and then went up to him, told him not to say anything, and that if he did he would give him slaps or kicks. Plant then took a stone in his hand, and threatened if Pond spoke, to throw it at him. Pond said nothing, but went home quietly, and Plant went off and was heard making further threats soon after. Friday night neither Pond nor his family went to bed, being in fear of violence. Between one and two o'clock that night. Plant, Robilliard, and Blan- chard went to the net-house, and partially tore it down, while Whitney and Cull were in it. They then went to the house where Pond, his wife, and children were, shook the door, and said they wanted Pond. Pond concealed himself under the bed, and his wife demanded what they wanted of him, saying he was not there; when Plant shook the door again, and ordered Mrs. Pond to open it, saying they wanted to search the house. She refusing, they resorted to artifice, asking for various articles of food, and objecting to receixang them except through the door. Plant then repeatedly commanded her to open the door, saying if she did not, she would regret it. On opening the door from six to twelve inches, by sliding the cord, to hand them some sugar, which they demanded, they did not take the sugar, but Plant seized Mrs. Pond's arm, and squeezed it until she fainted. Not succeeding in getting into the house, they then left for Ward's, and Pond went to the house of his brother-in-law, and borrowed a double-barreled shot gun loaded with pigeon shot, and returned home. While at Ward's Blanchard told the latter that they had torn down part of Pond's net-house, and had left the rest so that when they went back they would have the rest of the fun. Blanchard also said, "I want to see Gust. Pond: he abused an Irish- man, and I want to abuse him just as bad as he abused the Irishman. Pond has to be abused any way." He also said to Ward, "This is good bread, I don't know but it may be the last piece of bread I'll eat." Plant also made threats. A short time after returning, they were heard to say they were going back again; were going to find him and to whip him, or have the soul out of him. It is to be remarked that we have their language as rendered by an interpreter, who was evi- dently illiterate, or at least incompetent to translate into very good English; and it is impossible for us to determine the exact force of what was said. The party then went back to Pond's, and asked admittance to search for him. His wife refused to let them in. They immediately went to the net-house, where Cull was asleep. Plant seized Cull, and pulled him out of bed on the floor, and began choking him. Cull demanded who it was, but received no answer. Blanchard and Robilliard had commenced tearing down the boards. Pond went to the door and hallooed, "Who is tearing down my net-house?" to which there was no answer. The voices of a woman and child were heard crying, and the woman's voice was heard twice to cry out " for God's sake! " Cull's voice was also heard from the net-house, not speaking, but hallooing /■ 440 - POND V. TEOPLE. [CHAP. 7. as if he was in pain. Pond cried out loudly, "leave or I'll shoot." The noise continuing, he gave the same warning again, and in a few seconds shot off one barrel of the gun. Blanchard was found dead the next morning. Pond took immediate steps to surrender himself to justice. A question was raised whether the net-house was a dwelling or a part of the dwelling of Pond. We think it was. It was near the other building, and was used not only for preserving the nets which were used in the ordinary occupation of Pond, as a fisherman, but also as a peruianent dormitory for his servants. It was held in The People v. Taylor, 2 Mich. 250, that a fence was not necessary to include build- ings within the curtilage, if within a space no larger than that usually occupied for the purposes of the dwelling and customary outbuildings. It is a very common thing in the newer parts of the country, where, from the nature of the materials used, a large building is not readily made, to have two or more small buildings, with one or two rooms in each, instead of a large building divided into apartments. We cannot, upon a consideration of the facts manifest from the bill of exceptions, regard the charges asked by the defense as alxstract or inapplicable to the case. It was for the jury to consider the whole chain of proof; but if they believed the evidence as spread out upon the case, we feel constrained to say that there are very few of the precedents which have shown stronger grounds of justification than those which are found here. Instead of reckless ferocity, the facts display a very commendable moderation. Apart from its character as a dwelling, which was denied by the court below, the attack upon the net-house for the purpose of destroy- ing it was a violent and forcible felony. And the fact that it is a statutory and not common law felony, does not, in our view, change its character. Rape and many other of the most atrocious felonious assaults, are statutory felonies only, and yet no one ever doubted the right to resist them unto death. And a breaking into a house with the design of stealing the most trifling article, being common law burglary, was likewise allowed to be resisted in like manner, if necessary. W^e think there is no reason for making any distinctions between common law and statute felonies in this respect, if they are forcible and violent. So far as the manifest danger to Pond himself, and to Cull, is concerned, the justification would fall within the common law. SECT. II.j KEGINA V. MURPHY. 441 REGINA V. IVIURPHY. Meath Assizes. 1839. [Eeportfid I Crairford - osition that if the liorse was feloniously taken and carried awa}* by the deceased, and there was an apparent necessity for killing deceased in order to recover the property and prevent the consummation of the felony, the homicide would be justifiable. The question is thus pre- sented, as to the circumstances under which one can kill in order to prevent the perpetration of a larceny which is made a felony by statute — a subject full of difficulties and conflicting expressions of opinion from the ver}" earliest history of our common-law jurisprudence. The broad doctrine intimated by Lord Coke was, that a felon may be killed to prevent the commission of a felony without an}' inevitable cause, or as a matter of mere choice with the slayer. — 3 Inst. 56. If such a rule ever prevailed, it was at a very early day, before the dawn of a milder civilization, with its waser system of more benignant laws; for Blackstone states the principle to be, that " where a crime, in itself capital, is endeavored to be committed by force, it is lawful to repel that force by the death of the party attempting." 4 Cora. 181. The rea- son he assigns is, that the law is too tender of the public peace and too careful of the lives of the subjects to " suffer, with impunity, any crime to be prevented by death, unless the same, if committed, would also be punished by death." It must be admitted tliat there was far more reason in this rule than the one intimated by Lord Coke, although all felonies at common law were punishable by death, and the person kill- ing, in such cases, would seem to be but the executioner of the law. Both of these views, however, have been repudiated by the later authorities, each being to some extent materially modified. All admit that the killing can not be done from mere choice ; and it is none the less certain that the felon}- need not be a capital one to come within the scope of the rule. Gray v. Combs, 7 J. J. Marsh. 458; Cases on Self- Defence (Horr. & Thomp.), 725, 8G7 ; Oliver v. The State, 17 Ala. 587 ; Carroll v. The State, 23 Ala. 28. We find it often stated, in general terms, both by text writers and in many well considered cases, that one may, as Mr. Bishop expresses it, " oppose another who is attempting to perpetrate any felony, to the extinguishment, if need be, of the felon's existence." — 1 Bish. Cr. Law, §§ 849-50 ; The Slate v. Rutherford, 1 Hawks, 457. It is observed by Mr. Bishop, who is an advocate of this theory, that " the practical carrying out of the right thus conceded, is, in some circumstances, dangerous, and wherever admitted, it should be carefully guarded." 1 Bish. C'-. Law, ;i 855. SECT. II.] STOBEY V. STATE. 447 After a careful consideration of the subject we are fully persuaded that the rule, as thus stated, is neither sound in principle, nor is it sup- ported by the weight of modern authority'. The safer view is that taken by Mr. Wharton, that the rule does not authorize the killing of persons attempting secret felonies, not accompanied by force. — Whart. on Horn. § 539. Mr. Greenleaf confines it to " the prevention of any atrocious crime attempted to be committed by force ; such as murder, robbery, house-breaking in the night-time, rape, mayhem, or an^' other act of felony against the person" (3 Greenl. Ev. 115) ; and such seems to be the general expression of the common law text writers. — 1 Russ. Cr. 665-70; 4 Black. Com. 178-80; Whart. Amer. Cr. Law, 298-403; 1 East P. C. 271 ; 1 Hale, P. C. 488 ; Foster, 274. It is said by the authors of Cases on Self-Defence that a killing which " appears to be reasonably necessarj' to prevent a forcible and atrocious felony against property, is justifiable homicide." "• This rule," it is added, " the common-law writers do not extend to secret felonies, or felonies not accompanied with force," although no modern case can be found ex- pressl}' so adjudging. The}' further add : " It is pretty clear that the rigiit to kill in defence of property does not extend to cases of larcen}', which is a crime of a secret character, although the cases which illus- trate this exception are general!}' cases of theft of articles of small value." — Cases on Self-Defence (Horr. & Thomp.), 901-2. This was settled in Reg. v. Murph}-, 2 Crawf & Dix C. C. 20, where the defendant was convicted of shooting one detected in feloniously carry- ing awa}' fallen timber which he had stolen from the premises of the prosecutor, the shooting being done very clearly to prevent the act, which was admitted to be a felony. Doherty, C. J., said : "I can not allow it to go abroad that it is lawful to fire upon a person committing a trespass and larceny ; for that would be punishing, perhaps with death, oflfences for which the law has provided milder penalties." This view is supported by the following cases: State v. Vance, 17 Iowa, 144 ; McClelland v. Ka}', 14 B. Monroe, 106, and others not necessary to be cited. See Cases on Self-Defence, p. 901, note. There is no decision of this court, within our knowledge, which con- flicts with these views. It is true the rule has been extended to statu- tory' felonies, as well as felonies at common law, which is doubtless the correct doctrine, but the cases adjudged have been open crimes com- mitted b}' force, and not those of a secret nature. — Oliver's case, 17 Ala. 587; Carroll's case, 23 Ala. 28 ; Dill's case, 25 Ala. 15. In Pond V. The People, 8 Mich. 150, after endorsing the rule which we have above stated, it was suggested by Campbell, J., that there might possibly be some " exceptional cases" not within its influence, a proposition from which we are not prepared to dissent. And again in Gray v. Combs, 7 J. J. Marsh. 478, 483, it was said by Nicholas. J., that the right to kill in order to prevent the perpetration of crime should depend " more upon the character of the crime, and the time and manner of its attempted jDerpetration, than upon the degree of 448 STORK Y V. Sl'ATE. [CHAP. V. punishment attached b}- law." There is much reason in this view, and a strong case might be presented of one's sliooting a felon to prevent the asportation of a stolen horse in the nigiit-time, where no opportu- nity is afforded to recognize the tiiief, or obtain speedy redress at law. Both the Roman and Athenian laws made this distinction in favor of preventing the perpetration of theft by night, allowing, in each instance, the thief to be killed when necessary, if taken in the act. — 4 Black. Com. 180, 181. The alleged larcen}' in the present case, if it occurred at all, was in the open daylight, and the defendant is not shown to liave been unable to obtain his redress at law. Where' opportunity is afforded to secure the punisliment of the offender b}- due course of law, the case must be an urgent one which excuses a killing to prevent any felon}*, much less one not of a forcible or atrocious nature. — Whart. Horn. §§ 536-8. " No man, under the protection of the law," says Sir Michael Foster, "is to be the avenger of his own wrongs. If they are of such a nature for which the law of society will give him an adequate remed}', thither he ouglit to resort." — Foster, 296. It is everywhere settled that the law will not justify a homicide which is perpetrated in resisting a mere civil trespass upon one's premises or property, unaccompanied by force, or felonious intent. — Carroll's case, 23 Ala. 28 ; Clark's Man. Cr. Law, §§ 355-7 ; Whart. on Horn. § 540. The reason is that the preservation of human life is of more importance than the protection of property. The law mav afford ample indemnity for the loss of the one, while it utterly fails to do so for the otlier. Tlie rule we have above declared is the safer one, because it better comports with the public tranquillity and the peace of society. The establishment of any other would lead to disorderly breaches of the peace of an aggravated nature, and therefore tend greatl}' to cheapen human life. This is especiall}' true in view of our legislative policy which has recently brought many crimes, formerly classed and punished as petit larcenies within the class of statutor}' felonies. It seems settled that no distinction can be made between statutory and common law felonies, whatever may be the acknowledged extent of the rule. Oliver's case, 17 Ala. 587; Cases on Self-Def. 901, 867 ; Bish. «tat. Cr. § 139. The stealing of a hog, a sheep, or a goat is, under our statute, a felony, without regard to the pecuniary value of the animal. So would be the larceny of a single ear of corn, which is " a part of any outstanding crop." — Code, § 4358 ; Acts 1880-81, p. 47. It would be shocking to the good order of government to have it proclaimed, with the sanction of the courts, that one may, in the broad daylight, commit a wilful homicide in order to prevent the larceny of an ear of corn. In our judgment the fifth charge, requested by the defendant, was properly refused. It cannot be questioned, however, that if there was in truth a larceny of the prisoner's horse, he, or any other private i)(m- SECT. II.] THOMAS V. KINKEAD. 449. turing the stolen property. — Code, §§ 4668-70; 1 Bish. Cr. Proc §§ 164-5. He is not required, in such case, to inform the party flee- ing of his purpose to arrest him, as in ordinary cases. — Code, § 4669. And he could, if resisted, repel force with force, and need not give back, or retreat. If, under such circumstances, the party making resistance is unavoidably killed, the homicide would be justitial^le. 2 Bish. Cr. Law, § 647 ; 1 Russ. Cr. 665 ; State v. Roane, 2 Dev. 58. If the prisoner's purpose was honestly to make a pursuit, he would not for this reason be chargeable with the imputation of having wrongfully brought on the difficulty; but the law would not permit him to resort to the pretence of pursuit, as a mere colorable device, beneath which to perpetrate crime. THOMAS V. KINKEAD. SupRKME Court of Arkansas. 1892. [Reported 55 Ark. 502.] Mansfield, J. This action was brought by the w idow and minor chil- dren of John Thomas, deceased, against Ewing Kinkead, a constable of Pulaski county, and the sureties on his official bond, to recover damages for the alleged wrongful killing of Thomas by Jesse F. Heard, a deput}' of the defendant Kinkead as such constable. Heard was also made a defendant. The complaint avers that the act of killing was committed under color of a warrant for the arrest of Thomas, to answer for a misdemeanor charged against him before a justice of the peace, and that it was done wantonly and without cause. The defendants by their pleading justify the killing as having been done by Heard in self-defence, while lawfully exercising his power to execute the warrant mentioned in the complaint, and while Thomas was unlawfully resisting arrest and attempting to escape. The appeal is from a judgment rendered on the verdict of a jury against the plaintiffs. The death of Thomas resulted from a wound inflicted by a pistol- shot, and the evidence as to the immediate circumstances of the homi- cide was such as to make it questionable whether he had been actualU' placed under arrest before he was shot. It was contended at tiie trial that his arrest had been accomplished, and that he was killed while attempting to break away from the custod}' of the officer. As appli- cable to this view of the facts, the court, against the objection of the plaintiffs, gave the jury the following instruction : '* If the jury find from the evidence that Heard had actuall}' arrested Thomas, whether for felon}' or misdemeanor, if Thomas attempted to get away, Heard had a right to shoot him, if this shooting was necessary to prevent 450 THOMAS V. KINKEAD. [CHAP. V. his escape; provided Heard acted in the exercise of due caution and prudence." • In repeating substantially the same charge in a different connection, the jury were told that life can be taken to prevent an escape ouh* in case of extreme necessit}' and when the officer has exhausted all other means of enforcing the prisoner's submission. The duty which the law enjoins upon an officer to exercise his authorit}' with discretion and prudence was also fully and properly stated, and the jury were in effect instructed that the needless killhig of a prisoner would in all cases be wrongful. In another part of the charge it was stated, as an admis- sion of the pleadings, that the offence of which Thomas was accused was a misdemeanor. And in other respects the charge of the court was such that the plaintiffs were not prejudiced by the instruction we have quoted, if the life of a prisoner may be taken under an}' circumstances merel}' to prevent his escape after arrest for a misdemeanor. The doctrine of the court's charge is approved b}- Mr. Bishop, who states it in his work on Criminal Procedure substantialh' in the lan- guage emplo3'ed by the trial judge. 1 Bishop, Cr. Pro., sec. 161. In his note on the section cited, the author refers to his work on Criminal Law (vol. 2, sees. 647, 650) and to two cases decided bj- the Supreme Court of Texas — Caldwell v. State, 41 Texas, 86, and Wright v. State, 44 Texas, 645. In the first of these cases, a prisoner who had been arrested for horse stealing broke away from the custody of the officer, and the latter shot and killed him as he ran in the effort to make his escape. It was held that the officer was rightl}- convicted of murder in the second degree — the evidence showing that the prisoner was unarmed, and neither attacking nor resisting the officer. The judge who delivered the opinion said: " The law places too high an estimate on a man's life, though he be ... a prisoner, to permit an officer to kill him while unresisting, simply to prevent an escape." But as the arrest was for a felon}', it ma}' be that the decision was controlled by a statute of that State which provides that an " officer executing an order of arrest shall not in any case kill one who attempts to escape, unless in making or attempting such escape, the life of the officer is endangered or he is threatened with great bodil}' injurv." However that ma}' have been, the case gives no support to the text in connection with which it is cited. Nor is such support to be found in the case of Wright v. State, where the decision was that the power conferred by a Texas statute upon an officer having the custody of a convicted felon to take the life of the prisoner to prevent his escape does not extend to an officer attempting to re-arrest an escaped convict. The rule laid down without qualification in " Criminal Procedure " is stated only as " a general proposition " in one of the sections referred to in the work on Criminal Law. From the text of the latter reference is made to the treatise of Russell on Crimes and to the earlier works of Hale and Hawkins. But these writers all appear to limit the applica- tion of the rule to cases of felony or to cases where the jailer or other SECT, II.] THOMAS V. KINKEAD. 451 officer having the custody of a prisoner is assaulted b}' the latter in his effort to escape and the officer kills him in self-defence. 1 Hale, P. C 481, 496 ; 1 Russell on Crimes, 666, 667 ; 1 Hawkins, P. C. 81, 82. The decisions cited by Mr. Bishop in the section last referred to, as far as we have had the opportunity to examine them, go no further than the authors we have mentioned. U. S. v. Jailer, etc., 2 Abb. 265 ; State V. Anderson, 1 Hill, S. B. 327; Regina v. Dadson, 14 Jur. 1051. See also 4 Blackstone, 180. The case of State v. Sigman, 106 N. C. 728; S. C. 11 S. E. Rep. 520, is i-elied upon as sustaining the instruction in question. In that case an officer was indicted for an assault with a deadly weapon, com- mitted by discharging a pistol at a person accused of a misdemeanor, and who had escaped from the officer's custody and was fleeing to avoid rearrest. The officer being unable to overtake the prisoner fired upon him. He was convicted and the judgment of the trial court was af- firmed, the Supreme Court holding that the defendant was guilty of an assault, whether his intention in firing was to hit the escaped prisoner or simply to intimidate him and thereby induce him to surrender. This ruling followed as a conclusion from two propositions stated in the opinion. These are: (1) That an officer who kills a person charged with a misdemeanor and fleeing from him to avoid arrest will at least be guilty of manslaughter. (2) That where a prisoner " has already escaped," no means can be used tore-capture him which would not have been justifiable in making the first arrest ; and tliat if in pursuing him the officer intentionalh^ kills him, it is murder. But the second proposi- tion is preceded b}' the following paragraph of the opinion u[K)n which the appellees specially rely: "After an accused person has been arrested, an officer is justified to detain him in custody, and he maj^ kill his prisoner to prevent his escape, provided it becomes necessary, whether he be charged with a felony or a misdemeanor." Citing the first volume of Bishop's Criminal Procedure. The view thus expressed does not appear to be consistent with the court's decision. ISor does it seem to be an unqualified approval of the rule as it is stated in Bishop's Criminal Procedure. As stated in the quotation made, it seems to be laid down with reference onl^' to cases where a prisoner resists by force the effort of the officer to prevent him from " breaking away " and is killed in the struggle or affra}' which follows. In the case then before the court the prisoner had entirely escaped ; and having been subse- quently found, had run some distance before he was shot at. There was no occasion therefore for deciding whether the shooting, although not in self-defence, would have been justifiable if it had been done in an effort to detain the prisoner in the officer's custody. But we are wholly unable to perceive any ground for a distinction between the latter case and that on which the court's ruling was made. Iii a paragraph of the opinion preceding that from which we have quoted, in speaking of the case of one who, being charged with a misdemeanor, flees from the officer to avoid arrest, the court said: "The accused is shielded. 452 THOMAS V. KIXKEAD. [CHAP. V. . . . even from an attempt to kill, . . . by the merciful rule which forbids the risk of human life or the shedding; of blood in order to bring to justice one who is cliarged with so trivial an offence, when it is prob- able that he can be arrested another day and held to answer." This humane principle was permitted to prevail against the officer in the ease decided, although the person assaulted had been arrested and was shot at in the endeavor made to re-arrest him. Why should it not also protect the life of the prisoner arrested on a similar charge who endeavors forcibly to break away from the officer but offers no violence to the latter endangering his life or exposing his person to great harm ? The case of Head v. Martin, 3 S. W. Rep. (Ky.) 622, is also cited by the appellees. But the only ruling there made, as indicated by the syllabus, was that a peace officer, having arrested one accused of a misdemeanor, cannot, when he is fleeing, kill him to prevent his escape ; and all that the court says is strongly against the contention of the ap- pellee on the point we are considering. On the point embraced in the quotation of counsel from the opinion, in that case, the jury in the present case were properl}' charged by instructions other than that now under consideration. The only question presented by the latter is whether an officer having in his custody a prisoner accused of a misde- meanor may take his life if he attempts to break away, where, in the language of the court's charge, " no other means are available " to prevent his escape. A resort to a measure so extreme in cases of mis- demeanor was never permitted by the common law. 1 East, P. C. 302. That law has not, it is believed, lost any of its humanity since the time of the writer we have just cited; and no statute of this State operates to restrain its mercy. We have adopted its rule in making arrests in cases of felony. (Carr ij. The State, 43 Ark. 99.) But without legis- lative authority the severity of a remote age ought not to be exceeded in dealins: with those who are accused of smaller offences. East, in his Pleas of the Crown, after stating the rule that a felon fleeing from justice may be lawfull}' killed ''' where he cannot be other- wise overtaken," says: "The same rule holds if a felon after arrest break avvay as he is carrying to gaol, and his pursuers cannot retake without killing him. But if he may be taken in any case without such severity, it is at least manslaughter in him who kills him." (1 East, P. C, 298.) No distinction, it will be noticed, is made between the case of a felon fleeing from arrest and that of one " breaking away " after arrest; and such is still the law. No reason whatever is given for making such a distinction in cases of misdemeanor, and we have found no adjudged case which in our opinion supports it. See Clem- ments v. State, 50 Ala. 117; Head v. Martin, 3 S. W. supra; Reneaii V. State, 2 Lea, 720. In United States v. Clark, 31 Fed. Rep. 710, Mr. Justice Brown says: "The general rule is well settled, by elementary writers upon criminal law, that an officer having custody of a person charged with 4 SECT. II.] THOMAS V. KINKEAD. 453 felony may take his life, if it becomes absolutely necessary to do so to prevent his escape; but he maj' not do this if he be charged simply with a misdemeanor, the theory of the law being that it is better that a mis- demeanant escape than that human life be taken." And he expresses a doubt whether the law permitting life to be taken to prevent an escape is applicable at the present day even to all cases of felony. (See also State V. Bryant, 65 N. C. 355) ; Reneau v. State, 2 Lea, si/pra. It has been said that the officers of the law are " clothed with its sanctitj' " and " represent its majest}'." Head v. Martin, 3 S. W. Rep. 623. And the criminal code has provided for the punishment of those who resist or assault them when engaged in the discharge of their duties. Mansf. Dig., sees. 1765-67. But the law-making power itself iould not, under the constitution, inflict the death penalt}' as a punishment for a simple misdemeanor. (Art. 2, sec. 9, const.) And it would ill become the " majesty " of the law to sacrifice a human life to avoid a failure of justice in the case of a petty offender who is often brougfht into court without arrest and dismissed with a nominal fine. It is admitted that an officer cannot lawfully kill one who merely flees to avoid arrest for a misdemeanor, although it may appear that he can never be taken otherwise. If he runs, then, before the officer has laid his hands upon him with words of ariest, he may do so without danger to his life. But if, bj' surprise or otherwise, he be for a moment sufflcientl}^ restrained to constitute an arrest and then " break awa}'," the officer may kill him if he cannot overtake him. Such is the effect of the argument and of the rule in support of which it is made. We can see no principle of reason or justice on which such a distinction can rest, and we therefore hold that the force or violence which an officer may lawfully use to prevent the escape of a person arrested for a mis- demeanor is no greater than such as might have been rightfull}- emplo3'ed to eff'ect his arrest. In making the arrest or preventing the escape, the officer may exert such physical force as is necessary' on the one hand to effect the arrest by overcoming the resistance he encounters, or on the other to subdue the efforts of the prisoner to escape ; but he can- not in either case take the life of the accused, or even inflict upon him a great bodily harm, except to save his own life or to prevent a like harm to himself The circuit court erred in so much of its charge as was not in har- monj- with this statement of the law. In other respects the instructions contain no error prejudicial to the appellant. For the error indicated the judgment will be reversed, and the cause remanded for a new trial. 4r)4 REGINA V. GRIFFIN. [CHAP. V. Foster, C. L. 262. ParentS: masters, and other persons, having autliorit}- in foro domestico^ may give reasonable correction to those under their care ; and if death ensneth without tlieir fault, it will he no more than accidental death. But if tlie correction exceedeth the bounds of due moderation, either in the measure of it or in the instrument made use of for that purpose, it will be either murder or manslaughter according to the circumstances of the case. REGINA V. GRIFFIN. Liverpool Assizes. 1869. [Reported 1 1 Cox C. C. 402.] The prisoner, David Griffin, was indicted for the manslaughter of Ann Griffin, at Liverpool, on the 7th of November, 1869. The deceased, who was tlie daughter of the prisoner, was two j'ears and six months old, and her death took place under the following circumstances. On the 7th of November the prisoner's wife had occasion to leave the house, the deceased, with her brother and sister, being at that time in bed, in a room adjoining that in which the prisoner was sitting. During the absence of his wife, the prisoner heard the deceased crying, and went into the room where the deceased was, and took her out of bed into another room. As he was doing this she committed some childish fault ; this made the prisoner angry ; and, after having placed her in the other room, he got a strap one inch wide and eighteen inches long and, having turned up her clothes, gave her from six to twelve severe strokes over the lower part of the back and right tliigh. Deceased did not cry much at the time, but appeared very frightened ; she never recovered from the effects, and died on the following Wednesday, November 10. Medical evidence was ijiven to the effect that tlie deceased had been a healthy child and well nourished, and that the cause of death was congestion, accelerated bv a shock to the nervous system, produced by the severe beating which the prisuner iiad given it. the marks of which were clearly seen at the -post rnorteiu examination on the day following her death. Ildirtkorne, for the prisoner, contended that there was no case to go to the jury, for the prisoner had, as a father, a perfect right to cor- rect his child. TkUwell, for the prosecution, contended that, although a ftither might correct his child, the law did not permit him to use a weapon 'W SECT. II.J CLEARY V. BOOTH. ^ 455 improper for the purpose of correction. He cited Reg. r. Hopley (2 F. & F. 201.) Martin, B. (after having consulted with Willes, J., who concurred in his opinion). The law as to correction has reference only to a child capable of appreciating correction, and not to an infant two years and a half old. Although a slight slap may be lawfully given to an infant by her mother, more violent treatment of an infant so Aoung b}- her father would not be justifiable ; and the only question for the jurv to decide is, whether the child's death was accelerated or caused by the blows inflicted by the prisoner. Guilty. CLEARY y. BOOTH. High Court of Justice, Queen's Bench Division. 1893. [Reported 1893, 1 Q. B. 465.] Lawrance, J. The question in this case is not an easj' one ; there is no authority, and it is a case of first impression. The question for us is whether the head master of a board school is justified in inflicting corporal punishment upon one of his scholars for an act done outside the limits of the school, and the appellant's counsel has in his argument relied on what might happen if a boy were not punished by the master for such acts. The facts seem to be that a boy while coming to the appellant's school was assaulted by another boy belonging to the same school ; that complaint was made to the appellant, who then and there punished the bo}' who had committed the assault and also the respond- ent, who was in his company. The first observation that occurs to one to make is that one of the greatest advantages of any punishment is that it should follow quickly on the offence. The cases cited to us show that the schoolmaster is in the position of the parent. What is to become of a boy between his school and his home? Is he not under the authority of his parent or of the schoolmaster? It cannot be doubted that he is ; and in my opinion among the powers delegated by the parent to the schoolmaster, such a power as was exercised bj' the appellant in this case would be freel}- delegated. If we turn to the Code we find that there are several things for wln"ch a grant may be given, including discipline and organization, and that the children are to be brought up in habits of good manners and language, and of con- sideration for others. Can it be reasonablv argued that the onlv ri^ht of a schoolmaster to inflict punishment is in respect of acts done in the school, and that it is onlj' while the boys are there that he is to see that the}^ are well-mannered, but that he has exceeded all the authority delegated to him by the parent if he punishes a bo}' who within a yard of the school is guilty of gross misbehavior? It is difficult to express 456 CLEARY V. BOOTH [CIIAP. V. in words the extent of the schoohnaster's autliority in respect to the punislniient of liis pupils; but in my opinion his authorit}- extendi, not oiiIn" to acts done in school, but also to cases where a complaint of acts done out of school, at any rate while going to and from school, is made to the schoolmaster. In the present case I think that weight may prop- erly be placed on the fact that the act for which the boy was punished was done to another pupil of the same school. I think, therefore, that the justices were wrong in convicting the appellant as they did, and that the case must be sent back to them to find as a fact whether the punishment was excessive. Collins, J. I am of the same opinion. It is clear law that a father has the right to inflict reasonable personal chastisement on his son. It is equall}' the law, and it is in accordance with very ancient practice, that he ma}- delegate this right to the schoolmaster. Such a right has alwa3'S commended itself to the common sense of mankind. It is clear that the relation of master and pupil carries with it the right of reason- able corporal chastisement. As a matter of common sense, how far is this power delegated bj" the parent to the schoolmaster? Is it lim- ited to the time during which the bo}^ is within the four walls of the school, or does it extend in an}' sense beyond that limit? In my opin- ion the purpose with which the parental authority is delegated to the schoolmaster, who is entrusted with the bringing up and discipline of the child, must to some extent include an authority over the child while be is outside of the four walls. It ma}' be a question of fact in each case whether the conduct of the master in inflicting corporal pun- ishment is right. Very grave consequences would result if it were held that the parent's authority was exclusive up to the door of the school, and that then, and only then, the master's authorit}^ commenced; it would be a most anomalous result to hold that in such a case as the present the boy who had been assaulted had no remedy b}' complaint to his master, who could punish the assailant by a thrashing, but must go before the magistrate to enforce a remed}' between them as citizens. Not only would such a position be unworkable in itself, but the Code, which has the force of an Act of Parliament, clearly contemplates that the duties of the master to his pupils are not limited to teaching. A grant may be made for discipline and organization, and it is clear that he is entrusted with the moral training and conduct of his pu[)ils. It cannot be that such a dutj' or power ceases the moment that tlie pupil leaves school for home; there is not much opportunity for a boy to exhibit his moral conduct while in school under the eye of the master : the opportunity is while he is at play or outside the school ; and if the schoolmaster has no control over the ])oys in their relation to each other except when they are within the school walls, this object of the Code would be defeated. In such a case as the present, it is obvious that the desired impression is best brought about b}' a summary and imme- diate punishment. In ray opinion parents do contemplate such an SECT. 11.] FEETICH V. MICHENEE. 457 exercise of authorit}' by the schoolmaster. I should be sorr}' if I felt myself driven to come to the opposite concliisicjii, and am glad to be able to sa}' that the principle shows tliat the aiitliority delegated to the schoolmaster is not limited to tlie four walls of the school. It is always a question of fact whether the act done was outside the delegated authority; but in the present case I am satisfied, on the facts, that it was obviously within it. The question of excess is one for the magistrates. FERTICH V. MICHENER. Supreme Court of Indiana, 1887. [Reported 111 Ind. 472.] NiBLACK, J. This was an action by Nora S. Michener, a minor child, acting through Louis T. Michener, her father and next friend, against William H. Fertich for alleged injuries received while attending a public school of which Fertich Vvas the superintendent. I The complaint was in three paragraphs. . . . The second paragraph /charged the defendant with having, on the 15th day of January, 1885, wrongfully and unlawfully restrained the plaintiff of her liberty for a period of thirty minutes.^ The court also instructed the jury to the effect that if the appellee was at any time detained in the school-room for a period of ten or fifteen minutes after her class was dismissed, as a penalty for having asked leave to retire and having retired from the room during school hours, such detention was a false imprisonment, and that a teacher who might refuse to permit a pupil to retire from the school-room, in accordance with the rule set out in the third paragraph of the com- plaint, would be liable for whatever damages thereby resulted to the pupil. In our view of the principles underlying this case, that instruction- was also erroneous. Such a detention after the rest of tiie class was dismissed may have been unjust, in the particular instance, as well as in a general sense, to the appellee, and it, as well as the refusal of per- mission to retire, may have been a violation of the spirit of the rule referred to; but, upon the hypothesis stated in the instruction, the detention did not amount to a false imprisonment, and the refusal of permission to retire did not constitute a cause of action against the teacher. The recognized doctrine now is, that a school officer is not personally liable for a mere mistake of judgment in the government of his school. ^ Only so much of the case as deals with this paragraph of the complaint is here printed. — Ed. 458 HERITAGE V. DODGE. [CHAP. V. To make him so liable it must be shown that he acted in the matter complained of wantonly, wilfully, or maliciously. Cooper v. McJunkin, 4 Ind. 290; Gardner i'. State, 4 Ind. 632; Danenhoffer v. State, 79 Ind. 75; Elmore v. Overton, 104 Ind. 458 (54 Am. R. 343); Churchill v. Fewkes, 13 Bradw. 520; McCormick v. Burt, 95 111. 263 (35 Am. R. 163); Harman v. Tappenden, 1 East, 555; Dritt r. Snodgrass, 66 Mo. 286 (27 Am. R. 343). The instruction, consequently fell short of telling the jury all that was necessary to establish a liability for either the detention or the refusal referred to by it. The detention or keeping in of pupils for a short time after the rest of the class has been dismissed, or the school has closed, as a penalty for some misconduct, shortcoming, or mere omission, has been very generally adopted by the schools, especially those of the lower grade, and it is now one of the recognized methods of enforcing discipline and promoting the progress of the pupils in the common schools of the State. It is a mild and non-aggressive method of imposing a penalty, and inflicts no disgrace upon the pupil. The additional time thus spent in studying his lessons presumably inures to the benefit of the pupil. However mistaken a teacher may be as to the justice or propriety of imposing such a penalty at any particular time, it has none of the ele- ments of false imprisonment about it, unless imposed from wanton, wilful, or malicious motives. In the absence of such motives, such a mistake amounts only to an error of judgment in an attempt to enforce discipline in the school, for which, as has been stated, an action will not lie. And in this connection it is perhaps proper to say that there is nothing in the evidence, as we construe it, tending to show that the appellee's teacher was actuated by wantonness, wilfulness, or malice in any of the alleged wrongs of which the appellee has complained. As there was a failure of proof as against the teacher, the necessary in- ference is that the evidence was insufficient to establish a cause of action against the appellant. As to what constitutes a reasonable rule for the government of a school, see the case of Burdick v. Babcock, 31 Iowa, 562, above cited. The judgment is reversed, with costs. (y HERITAGE v. DODGE. Supreme Court of New Hampshire, 1886. [Reported 64 N. II. 297.] Trespass, for assault and battery. Plea, the general issue, with a brief statement that the defendant was teacher of a public school in which the plaintiff was a scholar, and that the assault and battery com- SECT. II.] HERITAGE V. DODGE. 459 plained of was the infliction of reasonable punishment of the plaintiff for disrespectful conduct and violation of the regulations of the school. The evidence tended to show that some of the scholars had a prac- tice of coughing and making noises resembling coughing for the pur- pose of attracting attention, which disturbed the order and quiet of the school. The defendant requested that the noises be stopped, but the disturbance continued to some extent. At the time of the assault the defendant was repeating the request to the school, when the plaintiff made a noise resembling a cough, which the defendant under- stood was intended by the plaintiff as an act of contempt and defiance of the teacher's authority, and thereupon the defendant inflicted the punishment complained of. The plaintiff offered e\'idence tending to show that a portion of the scholars, including the plaintiff, were affected with a cough known as chin-cough or whooping-cough, and the plaintiff testified that the coughing for which he was punished was involuntary, and not intended as an act of disobedience or of defiance. The plaintiff requested the following instruction: "If the jury find that the plaintiff could not help coughing by reason of a chin-cough, then the defendant was not justified in punishing the plaintiff, although the defendant believed that the plaintiff coughed for the purpose of defying his authority and disobeying the rules of the school." The court declined to give this instruction, and the plaintiff excepted. Upon this point the court charged the jury that if the defendant, acting honestly and with reasonable caution and prudence, believed that the act of the plaintiff was intended as an act of disrespect for and contempt of the teacher's authority, and if he had reasonable cause for belie\ang that the noise made by the plaintiff was inten- tional and for the purpose of showing his defiance of the reasonable requirements of the defendant in the government of the school, then the defendant was justified in inflicting moderate and reasonable punishment upon the plaintiff. The plaintiff excepted to the foregoing instructions. Verdict for the defendant. Smith, J. The instructions requested made the defendant liable, without regard to the fact whether he exercised reasonable judgment and discretion in determining whether the plaintiff was guilty of in- tentional misconduct as a scholar. The law clothes the teacher, as it does the parent in whose place he stands, with power to enforce dis- cipline by the imposition of reasonable corporal punishment. 1 Blk. Com. 453; 2 Kent Com. 205; Reeve Dom. Rel. 288, 289, 375. He is not required to be infallil)le in his judgment. He is the judge to de- termine when and to what extent correction is necessary; and like all others clothed with a discretion, he cannot be made personally respon- sible for error in judgment when he has acted in good faith and without malice. Cooley Const. Lim. 341; Cooley Torts, 171, 172, 288; Lander 460 COMMONWEALTH V. MCAFEE. [CHAP. V. V. Seaver, 32 Vt. 114; State v. Pendergrass, 2 Dev. & Bat, 365; Fitz- gerald V. Northcote, 4 F. & F. 565; Reeve Doni. Rel. 288. The instructions were correct, and there was no error in the refusal to give those requested.^ Exceptions overruled. Clark, J., did not sit: the others concurred. COMMONWEALTH v. McAFEE. SuPREMK Judicial Court of Massachusetts. 1871. [Reported 108 Mass. 458.] Indictment of Hugh McAfee, charging him with the manslaughter of Margaret McAfee, his wife, in that he, " the said Margaret did feloniously and wilfully strike, kick, beat, bruise, and wound, in and upon the head and body of her, the said Margaret, and her, the said Margaret, did throw upon the floor, therebj^ by the said striking, kick- ing, beating, wounding, and throwing upon the floor, then and there giving to the said Margaret divers and many mortal strokes," etc., of which said mortal strokes, etc., the said Margaret then and there died. It appeared at the trial that the defendant's wife was drunk ; that he struck her with his open hand, one blow on the cheek and one upon the temple ; and that she fell upon the floor and did not speak afterward. Medical witnesses testified, " that she had, bj' falling on a chair most probably, or by some other external force, been affected by concussion- of the brain and efl"usion of blood on the brain, and that thus her death was occasioned." The defendant requested the judge to instruct the jur}' that the hus- band had a legal right to administer due and proper correction and corporal chastisement on his wife.^ The jiidge refused so to instruct the jury, and gave them the follow- ing instructions: "Upon any view of the facts in this case, which the testimony, taken most strongly for the defendant, will allow, there was, as matter of law, no justification for the blows given ))}• tlie defendant to the deceased. If the unlawful blows of the defendant caused death, either directly, or by causing the deceased to fall upon the floor by the force and effect thereof, and so death thereby ensued, then the defend- ant is guilty of manslaughter." The jury returned a verdict of guilty, and the defendant alleged exceptions. Chapman, C. J. . . . The beating of llie defendant's wife was un- lawful. In Pearman r. Pearraan, 1 Swab. «fe Tristr. 60 1, it is said that 1 See also Boyd v. State, 88 Ala. 169; Donnelley t. Terr (Ari.), 52 Pac. 368; Sheehan v. Sturges, 53 Conn. 481; Hinkle v. State, 127 Ind. 490, 26 N. E. 777; State V. Mizner, 45 la. 248; State t. Long, 117 N. C. 791, 23 S. E. 431. — Ed. 2 Only so much of the case as discusses this request is given. — Ed. SECT. II.] THE QUEEN V. JACKSOX. 461 there is no law authorizing a man to beat his drunken wife. Beating a wife is held to be unlawful in New York. People v. Winters, 2 Parker's Crim. Cas. 10; Perry /•. Perry, 2 Paige, 501, 503. There is no authority in its favor in this commonwealth. Beating or striking a wife violentl3' with the open hand is not one of the rights conferred on a husliand by the marriage, even if the wife be drunk or insolent. The lilows being illegal, the defendant was at least guilt\' of man- slaughter. Commonwealth v. Fox, 7 Gray, 585. Exceptions overruled. t THE QUEEN v. JACKSON. Court of Appeal, 1891. [Reported (1891) 1 Q. B. 671.] Argument on the return to a writ of habeas corpus, commanding Edmund Haughton Jackson to bring up the body of Emily Emma Maude Jackson, his wife, taken and detained in his custody. Lord Esher, M. R.^ In this case it is really admitted that this lady is confined b}' the husband physically so as to take away her liberty. The only question for us to determine is whether in this case we can allow that to continue. The husband declares his intention to continue it. He justifies such detention; and the proposition laid down on his behalf is that a husband has a right to take the person of his wife by force and keep her in confinement, in order to prevent her from ab- senting herself from him so as to deprive him of her society. A series of propositions have been quoted which, if true, make an English wife the slave, the abject slave, of her husband. One proposition that has been referred to is that a husband has a right to beat his wife. I do not believe this ever was the law. ThenMt was said that, if the wife was extravagant, the husband might confine her, though he could not im- prison her. The confinement there spoken of was clearly the depriva- tion of her liberty to go where she pleases. The counsel for the husband was obliged to admit that, if she was kept to one room, that would be imprisonment; but he argued that, if she was only kept in the house, that was confinement only. That is a refinement too great for my intellect. I should say that confining a person to one house was im- prisonment, just as much as confining such person to one room. I do not believe that this contention is the law or ever was. It was said that by the law of England the husband has the custody of his wife. What must be meant by "custody" in that proposition so used to us? It must mean the same sort of custody as a gaoler has of a prisoner. I ' The return to the ^vTits and the concurring opinions of Lord Halsburt, L. C, and Fry, L. J., are omitted. — Ed. 462 THE QUEEN V. JACKSON. [CHAP. V. protest that there is no such law in England. Cochrane's Case, 8 Dowl. 630, was cited as deciding that the husV)and has a right to the custody, such custody, of his wife. I have read it carefull}^ and I think that it does so decide. The judgment, if I may respectfully say so, is not very exactly worded, and uses different expressions in many places where it means the same thing; but that seems to me to be the result of it. It appears to me, if I am right in attributing to it the meaning I have men- tioned, that the decision in that case was wrong as to the law enunciated in it, and that it ought to be overruled. Sitting here, in the Court of Appeal, we are entitled to overrule it. I do not believe that an English husband has by law any such rights over his wife's person, as have been suggested. I do not say that there may not be occasions on which he would have a right of restraint, though not of imprisonment. For instance, if a wife were about immediately to do something which would be to the dishonour of her husband, as if the husband saw his wife in the act of going to meet a paramour, I think that he might seize her and pull her back. That is not the right that is contended for in this case. The right really now contended for is that he may imprison his wife by way of punishment, or if he thinks that she is going to absent herself from him, for any purpose, however innocent of moral offense, he may imprison her, and it must go the full length that he may per- petually imprison her. I do not think that this is the law of England. But, assuming that there is such a right, the question arises whether the way in which and the circumstances under which it has been exer- cised in this case are such that the law ought to give back to the hus- band the custody of this lady against her will. The seizure was made on a Sunday afternoon when she was coming out of church, in the face of the whole congregation. He takes with him to assist him in making the seizure a young lawyer's clerk and another man. The wife is taken by the shoulders and dragged into a carriage, and falls on the floor of the carriage with her legs hanging out of the door. These have to be lifted in by, I believe, the clerk. Her arm is bruised in the struggle. She is then driven off to the husband's house, the lawyer's clerk riding in the carriage with them. Could anything be more insulting? The lawyer's clerk remains at the house, and a nurse is engaged to attend to the wife, who is not ill. Ob\'iously the lawyer's clerk and the nurse are to help to keep watch over her and control her. That in itself is insulting. She goes to a window in the house, and, one of her relations being outside, the blind is immediately pulled down. I think that the circumstances of this seizure and detention were those of extreme in- sult, and I cannot think t/hat it can be that under such circumstances as these the husband has a right to keep his wife insultingly imprisoned till she undertakes to consort with him. In m\' opinion, the circum- stances are such that the court ought not to give her back into his custody. He has obtained, it is true, a decree for restitution of con- jugal rights; but that gives liim no power to take the law into his own SECT. II.] TINKLE V. LUNIVANT. 463 hands and himself enforce the decree of the court by imprisonment. Formerly that decree might have been enforced by attachment for contempt; but that would have been an imprisonment by the court, not by the husband. The power of attachment in such cases is now taken away. The suggestion, therefore, must be that, though the court has no power to force the wife to restore conjugal rights by imprison- ment, the husband himself has a right to take her by force and imprison her without the assistance of the court. I think that the passing of the Act of Parliament which took away the power of attachment in such cases is the strongest possible e\ndence to show that the legislature had no idea that a power would remain in the husband to imprison the wife for himself; and this tends to show that it is not and never was the law of England that the husband has such a right of seizing and imprisoning the wife as contended for in this case. If there is now a greater difficulty than there was in enforcing, or if it is now impossible effectively to enforce a decree for the restitution of conjugal rights, the legislature has caused this by Act of Parliament, and the legislature must deal with the matter. For these reasons I agree that the return to the writ is bad, and that the husband has so acted that we ought not to give back the custody of this lady to him. Return held had, and wife to go free. TINKLE V. DUNIVANT. Supreme Court of Tennessee, 1886. [Reported 16 Lea, 503.] Freeman, J. This is a suit for recovery of damages for an alleged assault and battery by Tinkle on the plaintiff. The jury found a verdict in favor of plaintiff and assessed her damages at $500, from the judgment on which there is an appeal in error to this court. Several errors are assigned, which we proceed to dispose of. First, it is said, the damages are excessive. While they are probably large for the actual amount of injury, we cannot say they are so large as to evidence passion or prejudice on the part of the jury. The proof on the part of the plaintiff, which is evidently credited by the jury, is substantially, that plaintiff, a girl of about eighteen years of age, lived in defendant's house as a "house servant of all work," kept probably to assist Mrs. Tinkle in her general household duties. It seems there was an infant child of a few months okl in the family which required to be fed by means of milk drawn from a bottle, the mother not being able to give it nourishment from the breast. The child seems to have been fretful and required the bottle of milk during the night of the trouble, when Tinkle went into the room adjoining the family room and called plaintiff to get up and come into the other room. It is probable she failed to do so, as he says, after being called more than once ; she claims 464 THE king's prerogative in saltpetre. [chap. v. fliat she had not heard the calls. The child continuing to cry, defend- ant took an oil lamp in his left hand, went into the room where plain- tiff was in bed with a niece of his, and seized her by the arm, pulled her from the bed on the floor, and as he admits, "tapped" her on her side with his foot. She insists he kicked her with considerable severity, and the weight of the evidence tends to support her A'iew of the facts. It is shown that the act was of such a character that the niece of de- fendant raised up in the bed and said to him to stop. The plaintiff says she was hurt in her side and had felt pain as the result at times up to the trial. She was also somewhat bruised on her arm by the pres- sure of the hand in pulling her out of bed; she was in her night dress, and her gown is shown to have been torn. Wliile there has been no serious permanent damage, we cannot say the jury erred in believing the plaintiff's theory of the case, and so believing, the damage cannot be held, as we have said, to be so excessive as to require us to reverse for this cause. . . . His Honor was requested to charge the jury, "that if plaintiff was a minor under the age of twenty-one years, and was in the employ of defendant as a servant, he would have the right to require her to obey his reasonable commands, and in case of disobe- dience, to use moderate force to compel her to do so." To this he re- plied, " this request is the law, but defendant would not have the right to pull lier out of bed and kick her." In this he erred against the plain- tiff, so far as the first part of the proposition goes. A master has no right to enforce his commands upon his servant or employee by the use of force or personal chastisement. We so held in the case of Cooper V. The State, 8 Bax. 325. "A master has the right to use moderate corporeal correction in case of an offending apprentice." Commond v. Baird, 1 Ask. Pa. Rep. 2G7. But this right is denied as respects or- dinary hired servants. 2 Kent's Com. 261. The only civil remedies a master has for idleness, disobedience, or other dereliction of duty, or breach of contract on the part of a servant, are either to bring an action against him or discharge him from service. Wait's Act. and Def., voL 4, page 600, and authorities cited. ^ THE KING'S PREROGATIVE IN SALTPETRE. All the Judges of England. Reported 12 Co. 12. All the Justices, viz., Popham, Chief Justice of England, Coke,^ Chief Justice of the Common Pleas, Fleming, Chief Baron, Fenner, Searl, Yelverton, Williams, and Tanfield, JJ., were assembled at Ser- jeants-Inn, to consult what prerogative the King had in digging and taking of saltpetre to make gunpowder by the law of the realm; and, upon conference between them, these points were resolved by them all, una voce. ^ Part of the opinion is omitted. — Ed. SECT. II.] THE king's PREROGATIVE IN SALTPETRE. 465 That altliough the invention of gunpowder was devised within time of memory, viz., in the time of R. 2., yet inasmuch as this concerns the necessary defense of the reahn, he shall not be driven to buy it in foreign parts; and foreign princes may restrain it at their pleasure, in their own dominions: and so the realm shall not have sufficient for the defense of it, to the peril and hazard of it: and therefore insomuch as saltpetre is within the realm, the King may take it according to the limitations following for tne necessary defense of the kingdom. Although the King cannot take the trees of the subject growing upon his freehold and inheritance, as it was now lately resolved by us the Justices of England: and although he cannot take gravel in the in- heritance of the subject, for reparation of his houses, as the book is in 11 H. 4. 28; yet it was resolved, that he may dig for saltpetre, for this that the ministers of the King who dig for saltpetre are bound to leave the inheritance of the subject in so good plight as they found it, which they cannot do if they might cut the timber growing, which would tend to the disinheritance of the subject, which the King by prerogative cannot do; for the King (as it is said in our books) cannot do any wrong. And as to the case of gravel, for reparation of the houses of the King, it is not to be compared to this case; for the case of saltpetre extends to the defense of the whole realm, in which every subject hath benefit ; but so it is not in the case of the reparation of the King's houses: and therefore it is agreed in 13 H. 4. and other books, that the King may charge the subject for murage of a town, to which the subjects were charged in the time of insurrection or war, for safety: and so for pontage, for this that he wliich is charged hath benefit by it. But the King cannot charge the subject for the making of a wall about his own house, or for to make a bridge to come to his house; for that doth not extend to public benefit : . but when enemies come against the realm to the sea-coast, it is lawful to come upon my land adjoining to the same coast, to make trenches or bulwarks for the defense of the realm, for every subject hath benefit by it. And there- fore by the common law, every man may come upon my land for the defense of the realm, as appears 9 Ed. 4. 23. And in such case on such extremity they may dig for gravel, for the making of bulwarks; for this is for the public, and every one hath benefit by it; but after the danger is over, the trenches and bulwarks ought to be removed, so that the owner shall not have prejudice in his inlieritance : and for the commonwealth, a man shall suffer damage; as, for saving of a city or town, a house shall be plucked down if the next be on fire: and the suburbs of a city in time of war for the common safety shall be plucked down; and a thing for the commonwealth every man may do without being liable to an action, as it is said in 3 H. 8 fol. 15. And in this case the rule is true, Princeps ct respublica ex justa causa possunt rem meam auferre} 1 See also Y. B. i) Ed. 4, 2.3, pi. 41, Ames Cas. Torts (.3d ed.) 177. — Ed. 466 STATE V. WRAY. [CHAP. V. STATE V. WRAY. Supreme Coukt of North Carolina. 1875. [Reported 72 Xort/i Carolina, 253.] Settle, J. The defendants being indicted for retailing spirituous' liquors without a license so to do, the jury rendered the following special verdict: '■'The defendants were druggists and partners in the town of Shelby, and kept medicines for sale, but had no license to retail spirituous liquors. In the month of July, 1872, Dr. O. P. Gardner, a practising physician in the town of Shelby, prescribed the use of a half-pint of French brandy for Mrs. Durham, the wife of the witness, Hill Durham, and directed the witness to go to the defendants for it. That Dr. Gardner also went to tlie defendants and directed them to let the witness have the said brand}' for his wife as medicine. The witness then went to the defendants and purchased the half-pint of French brandy, and his wife used it as medicine. That French brandy is a spirituous liquor ; that it is also an essential ..ledicine, frequently prescribed by physicians, and often used, and that in this case it was bought in good faith as a medicine, and was used as such." The letter of the law has been broken, but has the spirit of the law been violated? The question here presented has been much discussed, but it has not received the same judicial determination in all the States in which it has arisen. In this conflict of authority we shall remember that the reason of the law is the life of the law, and when one stops the other should also stop. What was the evil sought to be remedied by our statute? Evidently the abusive use of spirituous liquors, keeping in view at the same time the revenues of the State. The special verdict is very minute in its details, and makes as strong a case for the defendants as perhaps will ever find its way into court again. A physician prescribes the brandy as a medicine for a sick lady, and directs her husband to get it from the defendants, who are druggists. It may be that a pure article of brandy, such as the physician was willing to administer as a medicine, was not to be obtained elsewhere than at the defendants' drugstore. The doctor himself goes to the defendants and directs them to let the witness have the brandy as a medicine for his wife. And the further fact is found, which perhaps might have been assumed without the find- ing, that French brandy is an essential medicine, frequently prescribed by physicians and often used ; and the farther and very important fact is established, that in this case it was bought in good faith as a medi- cine, and was used as such. After tliis verdict we cannot doubt that the defendants acted in good faith and with due caution, in the sale which is alleged to be a violation of law. In favor of defendants, criminal statutes are both contracted and SECT. II.] PEOPLE V. TAYLOR. 467 expanded. 1 Bishop, par. 261. Now unless this sale comes within the mischief which the statute was intended to suppress, the defend- ants are qot guilty ; for it is a principle of the common law that no one shall suffer criminally ^or an act in which his mind does not con- cur. The familiar instance given by Blackstone illustrates our case better than 1 can do by argument. The Bolognian law enacted "that whosoever drew blood in the street, should be punished with the utmost severity."" A person fell down in the street with a fit, and a surgeon opened a vein and drew blood in tlie street. Here was a clear viola- tion of the letter of the law, and yet from that day to this, it has never been considered a violation of the spirit of the law. Perhaps it will give us a clearer view of the case if we put the druggist out of the question, and suppose that the physician himself, in the exercise of his professional skill and judgment, had furnished the liquor in good faith as a medicine. Can it be pretended that he would be any more guilty of a violation of our statute, than the surgeon was guilty of a violation of the Bolognian law? We think not. But we would not have it understood that physicians and druggists are to be protected in an abuse of the privilege. They are not only prohibited from selling liquor in the ordinary course of business, but also from administering it as a medicine unless it be done in good faith, and after the exercise of due caution as to its necessity as a medicine. The sale of liquor without a license, in quantities less than a quart, is prima facie unlawful, and it is incumbent upon one who does so sell to show that it was done under circumstances which ren- der it lawful. In this case we think such circumstances have been shown, and we concur in the judgment of his honor, that the defend- ants are not guilty. Per Curiam. Judgment affirmed. PEOPLE V. TAYLOR. Supreme Court of Michigan, 1896. [Reported 110 Mich. 491.] Montgomery, J. The respondent was convicted of keeping a saloon open on Sunday.^ . . . The defendant offered testimony that on the Sunday in question he and his father-in-law were walking along the street, and came to nearly in front of his saloon, when they met four men; that defendant's father-in-law was taken suddenly ill, and it was suggested that he be taken home in a carriage, but he replied that he must have a doctor right away; that defendant then opened his saloon, admitted his father-in-law and the four other men, and tele- * Part of the opinion only is given. — Ed. 468 GLEVER V. HYNDE. [CHAP. A". phoned for a doctor. The defendant's own testimony shows that he was unable to state whether there w'ere other persons admitted into the saloon. ... We think this testimony fails to show any overruling necessity for opening up the saloon and admitting people indiscriminately. If it was necessary to take his father to a place for treatment, there was a drug store within a few feet of the place, lawfully open. Or, even if it might be said that it was proper to open the saloon for this purpose, it was not necessary to let in a battalion of customers at the same time. The facts were not disputed except as to the number of people admitted. No error was committed to the prejudice of respondent, and the con- viction will be affirmed. GLEVER V. HYNDE. Common Bench, 1674. [Reported 1 Mod. 168.] Glever brought an action of trespass, of assault and battery, against Elizabeth Hynde and six others. For that they at York-Castle, in the county of York, him, the said plaintiff, with force and arms did assault, beat, and evil-entreat, to his damage of one hundred pounds. The defendants plead to the vi ct armis, not guilty; to the assault, beating, and evil-entreating, they say, that at such a place, in the county of Lancaster, one Jackson, a curate, was performing the rites and funeral obsequies, according to the usage of the church of England, over the body of , there lying dead, and ready to be buried; and that then and there the plaintiff did maliciously disturb him; that they, the defendants, required liim to desist; and because he would not, that they to remdve him, and for the preventing of further disturbance, molliter ei manus imposucrunt, &c. quce est eadem transgressio; absque hoc that they were guilty of any assault, etc. within the county of York, or any where else extra comitatum Lancastriw. — The plaintiff demurs. The Court. The statute of 1. Phihp & Mary concerns preachers only: but there is another act, made 1. Eliz. c. 2. s. 9. that extends to all men in orders that perform any part of the public service. But tieither of these statutes take away the conunon law. And at the com- mon law, any person there present might have ^ removed the plaintiff'; for they were all concerned in the service of God that was then perform- ing; so that the plaintiff in disturbing it, was a nuisance to them all; and might be removed by the same rule of law that allows a man to abate a nuisance. — Whereupon judgment was given for the defendant, nisi causa, &c.~ 1 See 6. Edw. 6, c. 4. the 1. Mary, c. 3. and the 1. Will. & Mary, c. 18. s. 19. ^ See also Cooper v. McKenna, 124 Mass. 284. — Ed. "A SECT. II.] PUTNAM V. PAYNE. 469 PUTNAM V. PAYNE. Supreme Court, New York, 1816. [Reported 13 Johns. 312.] In error, on certiorari to a justice's court. The defendant in error brought an action, in the court below, against the plaintiff in error, for killing his dog. It was proved, at the trial, that the dog was very \acious, and frequently attacked persons pass- ing in the street, in Lansingburgh, where the parties resided. The plaintiff below had frequently been notified of the ferocious acts of his dog, and had been requested by the neighbors to kill or confine him. The dog in question had been bitten, a few days before he was killed, by a mad dog. There being a very great alarm in the village of Lan- singburgh, on account of mad dogs, the inhal)itants petitioned the trustees to pass by-laws for restraining dogs, and killing those that should be found at lar^e; and the trustees accordingly passed a law, declaring it lawful for any person to kill any dog which should be found at large in the village. It was also proved that the plaintiff below called upon the defendant, and informed him, that a certain other dog in the \'illage was mad, and requested him to go and shoot it; that the defendant accordingly took his gun for that purpose, and in passing through the A'illage met the plaintiff's dog running loose, and shot him dead. Judgment was given for the plaintiff below. Per Curiam. It is unnecessary, in this case, to decide whether the act complained of could be justified under the by-law of the corpora- tion. The defendant was fully justified in killing the dog, under the cir- cumstances of the case, upon common law principles. The dog was, generally, a dangerous and unruly animal, and his owner knew it; yet he permitted him to run at larg* , or kept him so negligently, that he escaped from his confinement. Such negligence was wanton and cruel, and fully justified the defendant in killing the dog as a nuisance. The public safety demands this rule. It is little better than mockery to say that a person injured by such an animal might sue for damages, or for penalties. But, in addition to this, the dog had lately been bitten by a mad dog; this, in itself, was sufficient to justify any person in killing him, if found running at large. We do not mean to say that this would be allowed as a justification in killing more useful, and less dangerous, animals, as hogs, etc. Judgment reversed. 470 SUROCCO V. GEARY. [CHAP. V. SUROCCO V. GEARY. Supreme Court of California, 1853. [Reported 3 Cal. 69.] Murray, C. J., delivered the opinion of the court. Heydenfeldt, J., concurred. This was an action, commenced in the court below, to recover dam- ages for blowing up and destroying the plaintiffs' house and property, during the fire of the 24th of December, 1849. Geary, at that time Alcade of San Francisco, justified, on the ground that he had authority, by virtue of his office, to destroy said building, and also that it had been blown up by him to stop the progress of the conflagration then raging. It was in proof, that the fire passed over and birned beyond the building of the plaintiffs', and that, at the time said building was destroyed, they were engaged in removing their property, and could, had they not been prevented, have succeeded in removing more, if not all of their goods. The cause was tried by the court sitting as a jury, and a verdict rendered for the plaintiff's, from which the defendant prosecutes this appeal under the Practice Act of 1850. The only question for our consideration is, whether the person who tears down or destroys the house of another, in good faith, and under apparent necessity, during the time of a conflagration, for the purpose of saving the buildings adjacent, and stopping its progress, can be held personally liable in an action by the owner of the property destroyed. This point has been so well settled in the courts of New York and New Jersey, that a reference to those authorities is all that is necessary to determine the present case. The right to destroy property, to prevent the spread of a conflagra- tion, has been traced to the highest law of necessity, and the natural rights of man, independent of society or civil government. " It is referred by moralists and jurists to the same great principle which justifies the exclusive appropriation of a plank in a shipwreck, though the life of another be sacrificed ; with the throwing overboard goods in a tempest, for the safety of a vessel ; with the trespassing upon the lands of another, to escape death by an enemy. It rests upon the maxim, Neccssitas inducit privilegium, quod jura privata." The coimnon law adopts the principles of the natural law, and places the justification of an act otherwise tortious precisely on the same ground of necessity. (See 1st Zabriskie, American Print Works v. Lawrence, and the cases there cited.) This principle has been familiarly recognized by the books from the SECT. II.] SUROCCO V. GEARY. 471 time of the saltpetre case, and the instances of tearing down houses to prevent a conflagration, or to raise bulwarks for the defense of a city, are made use of as illustrations, rather than as abstract cases, in which its exercise is permitted. At such times, the individual rights of prop- erty give way to the higher laws of impending necessity. A house on fire, or those in its immediate vicinity, which serve to communicate the flames, becomes a nuisance, which it is lawful to abate, and the private rights of the individual yield to the considera- tions of general convenience, and the interests of society. Were it otherwise, one stubborn person might involve a whole city in ruin, by refusing to allow the destruction of a building which would cut off the flames and check the progress of the fire, and that, too, when it was perfectly evident that his building must be consumed. The respondent has invoked the aid of the constitutional provision which prohibits the taking of private property for public use, without just compensation being made therefor. This is not "a taking of private property for public use," within the meaning of the Constitu- tion. The right of taking individual property for public purposes belongs to the State, by virtue of her right of eminent domain, and is said to be justified on the ground of state necessity ; but this is not a taking or a destruction for a public purpose, but a destruction for the benefit of the indi\'idual or the city, but not properly of the State. The counsel for the respondent has asked, who is to judge of the necessity of the destruction of property? This must, in some instances, be a difficult matter to determine. The necessity of blowing up a house may not exist, or be as apparent to the owner, whose judgment is clouded by interest, and the hope of sa\ang his property, as to others. In all such cases the conduct of the individual must be regulated by his own judgment as to the exigencies of the case. If a building should be torn down without apparent or actual necessity, the parties concerned would undoubtedly be liable in an action of trespass. But in every case the necessity must be clearly shown. It is true, many cases of hardship may grow out of this rule, and property may often in such cases be destroyed, without necessity, by irresponsible persons, but this difficulty would not be obviated by making the parties responsible in every case, whether the necessity existed or not. The legislature of the State possess the power to regulate this sub- ject by providing the manner in which buildings may be destroyed, and the mode in which compensation shall be made; and it is to be hoped that something will be done to obviate the difficulty, and pre- vent the happening of such events as those supposed by the re- spondent's counsel. In the absence of any legislation on the subject, we are compelled to fall back upon the rules of the common law. 472 PROCTOE V. ADAMS. [CHAP. V. The evidence in this case clearly establishes the fact, that the blow- ing up of the house was necessary, as it would have been consumed had it been left standing. The plaintiffs cannot recover for the value of the goods which they might have saved; they were as much sub- ject to the necessities of the occasion as the house in which they were situate; and if in such cases a party was held liable, it would too fre- quently happen, that the delay caused by the removal of the goods would render the destruction of the house useless. The court below clearly erred as to the law applicable to the facts of this case. The testimony will not warrant a verdict against the defendant.^ Judgment reversed. PROCTOR V. ADAMS. Supreme Judicial Court of Massachusetts, 1873. [Reported 113 Mass. 376.] Tort, in the nature of trespass quare clausum, for entering the plain- tiff's close and carrying away a boat. \ At the trial in the Superior Court, before Brighani, C. J., it appeared that the premises described in the declaration were a sandy beach on the sea side of Plum Island, and that the defendants went there, between high and low water mark, January 19, 1873, and against the objection and remonstrances of the plaintiff's tenant, carried away a boat worth $50, which they found lying there. The defendants offered e\idence that upon the night of January 18, 1873, there was a severe storm; that the next morning they went upon the beach to see if any vessels or property had been cast ashore; that they found a boat lying upon the beach about twenty-five feet below high water mark, which had apparently been driven ashore in the storm ; that in order to save it, they endeavored to haul it upon the beach, and succeeded in putting it near the line of high water mark; that, not thinking it secure, they, the next day, pushed it into the water, and carried it around into Plum Island River, on the inside of the island ; that they at once advertised it in the Ipswich and Newburyport papers ; that they shortly afterwards delivered it to one Jackman, who claimed it as agent for the underwriters of the wrecked steamer Sir Francis, and who paid them twelve dollars for their ser\'ices and expenses. The court ruled that these facts, if proved, would not constitute a defense, and proposed to instruct the jury as follows: " I^ the land upon which the boat was found and taken possession of 1 See also Dewey v. White. M. & M. -56; Drake v. Shorter. 4 Esp. 165. — Ed. SECT. II.] PROCTOR V. ADAMS. 473 by the defendants was in the possession or occupation of the plaintiff, the defendants' entry upon it without permission of the plaintiff was an unlawful entry. " If the defendants, having made an unlawful entry upon the plain- tiff's land, there took and therefrom carried a boat, for any purpose affecting the boat as derelict or wrecked property, they are liable to the plaintiff for their unlawful entry upon the land in nominal damage, and also, the boat not being their property, but a wreck, in damages for the unlawful taking and carrying away of the boat, to the value of the boat." The defendants requested the court to rule that, upon the case pre- sented, the 'law would imply a license, but the court declined so to rule. The defendants then declined to go to the jury, and the court instructed the jury to return a verdict for the plaintiff for $51, and re- ported the case to this court. Gray, C. J. The boat, having been cast ashore by the sea, was a wreck, in the strictest legal sense. 3. Bl. Com., 106. Chase v. Corcoran, 106 Mass. 286, 288. Neither the finders of the boat, nor the owner of the beach, nor the Commonwealth, had any title to the boat as against its former owner. Body of Liberties, art. 90. Anc. Chart., 211. 2 Mass. Col. Rec, 143. St. 1814, c. 170. Rev. Sts. c. 57. Gen. Sts. c. 81. 3 Dane Ab., 134, 136, 138, 144. 2 Kent Com., 322, 359. But the owner of the land on which the boat was cast was under no duty to save it for him. Sutton i'. Buck, 2 Taunt., 302, 312. If the boat, being upon land between high and low water mark, owned or occupied by the plaintiff, was taken by the defendants, claiming it as their own, when it was not, the plaintiff had a sufficient right of possession to maintain an action against them. Barker v. Bates, 13 Pick. 255. Dunwich v. Sterry, 1 B. & Ad. 831. But if, as the e\'idence offered by them tended to show, the boat was in danger of being carried off by the sea, and they, before the plaintiff had taken possession of it, removed it for the purpose of saving it and restoring it to its lawful owner, they were not trespassers. In such a case, though they had no permission from the plaintiff or any other person, they had an implied license by law to enter on the beach to save the prop- erty. It is a very ancient rule of the common law, that an entry upon land to savje goods which are in jeopardy of being lost or destroyed by water, fire, or any like danger, is not a trespass. 21 H. VII, 27, 28, pi. 5. Bro. Ab. Trespass, 213. Vin. Ab. Trespass, (H. a. 4) pi. 24 ad fin.; (K. a.) pi. 3. In Dunwich v. Sterry, 1 B. & Ad. 831, a case very like this, Mr. Justice Parke (afterwards Baron Parke and Lord Wens- leydale) left it to the jury to say whether the defendant took the prop- erty for the benefit of the owners, or under a claim of his own and to put the plaintiffs to proof of their title. In Barker v. Bates, 13 Pick. 255, upon which the plaintiff mainly relies, the only right claimed by the defendants was as finders of the property and for their own benefit. 474 SEAVEY V. PREBLE. [CHAP. V. The defendants are therefore entitled to a new trial. As the answer was not objected to, and the declaration may be amended in the court below, we have not considered the form of the pleadings. New trial ordered. SEAVEY V. PREBLE. Supreme Judicial Court of Maine, 1874. [Reported 64 Me. 120.] Walton, J. We perceive no objection to the form of the action in this case. It is well settled that trespass quare clausum frcgit may be maintained by the owner of real estate for an injury to the freehold, notwithstanding it was in the possession of a tenant at will at the time of the alleged injury. Davis v. Nash, 32 Maine, 411. But we think the verdict is clearly against e\ddence. When the small-pox or any other contagious disease exists in any town or city the law demands the utmost vigilance to prevent its spread. "All possible care" are the words of the statute. R. S. c. 14, § 30. To accomplish this object persons may be seized and restrained of their libert}' or ordered to leave the State; private houses may be con- verted into hospitals and made subject to hospital regulations; build- ings may be broken open and infected articles seized and destroyed, and many other things done which under ordinary circumstances would be considered a gross outrage upon the rights of persons and property. This is allowed upon the same principle that houses are allowed to be torn down to stop a conflagration. Sal us populi snprema lex — the safety of the peof)le is the supreme law — is the governing principle in such cases. Where the public health and human life are concerned the law re- quires the highest degree of care. It will not allow of experiments to .-^ see if a less degree of care will not answer. The keeper of a furious dog or a mad bull is not allowed to let them go at large to see whether they J will bite or gore the neighbor's children. Nor is the dealer in nitro- glycerine allowed in the presence of his customers to see how hard a "9, kick a can of it will bear without exploding. Nor is the dealer in gun- powder allowed to see how near his magazine may be located to a black- •' smith's forge without being blown up. Nor is one using a steam engine to see how much steam he can possibly put on without bursting the '; boiler. No more are those in charge of small-pox patients allowed to | experiment to see how little cleansing will answer; how much paper spit .; upon and bedaubed with small-pox xarus it will do to leave upon the walls of the rooms where the patients have been confined. The law SECT^ II.] SEAVEY V. PREBLE. 475 will not tolerate such experiments. It demands the exercise of all possible care. In all cases of doubt the safest course should be pursued, remembering that it is infinitely better to do too much than run the risk of doing too little. Unfortunately medical science has not yet arrived at that degree of perfection which will enable its practitioners to agree. There is scarcely a case tried where medical testimony is used, in which the doctors do not disagree. The swearing is sometimes so bitterly antagonistic as to make it painful to listen to it. There is the usual conflict of medical testimony in this case. The defendant and other physicians called by him as witnesses express the opinion that it is necessary in order to cleanse a room in which small-pox patients have been confined to remove the paper from the walls. The plaintiff (himself a physician) and the other physicians called by him as witnesses express the opinion that it is not necessary. Several of them however admit that if the paper is loose, or the small- pox \irus has actually come in contact with it, it should be removed. Mrs. Liscomb, the nurse employed by the city to take care of this family, testifies that the paper needed to be taken off; that it was dirty around where the diseased folks were; that it was all dirty; that the spittle from the mouths of the patients flew upon it. Doctor Blaids- dell, who attended the family some two or three weeks before it came under the care of the defendant, testifies that he noticed the paper particularly about the bed and that it was a good deal soiled ; that he supposed the patient must have spit a good deal and was not par- ticular where he spit; that in such cases it is difficult to expectorate; that the more \'iolent the disease the more adhesive the saliva; that there is usually a great deal of saliva in all cases; that in this case the patient lay against the wall some of the time and that when the patient is against the wall and soils the paper by saliva and by putting his hands upon it the best medical advice is to remove it and whitewash the wall with quicklime; that in this case he should have stripped off all the paper. Other physicians called by the defendant express substantially the same opinion. Under these circumstances what w^as it the duty of the defendant to do? The small-pox seems to have been unusually prevalent. The defendant testifies that he had a hundred and seven cases during the winter. He was city physician. Upon his efforts in a large degree depended the safety of the city. He could not go to his medical brethren for direction, for they as usual were divided in opinion. The mandate of the law to him was "Use all possible care." Under these circumstances we think he was justified in advising the removal of the paper from the walls of the rooms in which the small-pox patients had been confined, and that the law protected him in so doing. Motion sustamed. 476 PAUL V. SUMMER HAYES. [CHAP. V. PAUL V. SUMMERHAYES. Queen's Bench Division, 1878. [Reported L. R. 4 Q. B. D. 9.] Case stated by justices under 20 & 21 Vict. c. 43, upon a conviction of the appellants upon an information for an assault. The appellants were persons who, on the occasion in question, were engaged in hunting with a pack of foxhounds. In the pursuit of a fox, which the hounds were running, the appellants sought to enter upon a field forming part of a farm belonging to the respondent's father, which the respondent managed on his father's behalf. The respondent warned them off, and endeavoured to resist their entry on the field. For the purpose of overcoming his resistance to their entry, they com- mitted the assault complained of, and the main question in the case was whether, under the abo^'e-mentioned circumstances, there was any justification for the assault. The justices convicted the appellants in the sums of 20*. and 10*. respectively. Lord Coleridge, C. J. I am of opinion that the conviction should be affirmed. The statute 1 & 2 Wm. 4, c. 32, s. 35, really has no ap- plication to the case. That section of the statute merely provides that certain foregoing provisions shall not apply to persons in fresh pursuit of a fox. But, in truth, when the statute is examined, it will be seen that those provisions would not apply to the pursuit of the fox, the animal not being game. So the provisions of s. 35 seem only to have been put in ex majori cautela, to prevent certain penalties for a particular class of trespass, ^^z., trespass in pursuit of game, from applying to foxhunters. There is nothing, therefore, in the act to alter the common law with regard to trespass so far as concerns foxliunting. The real question is whether under the circumstances the respondent was justified in resisting the entry of the appellants on his father's land. I am of opinion that he was. It was suggested that there is authority that foxhunting in the popular, well understood, sense of the term, that is, as a sport, can be carried on over the land of a person without his consent and against his will, and the case of Gundry v. Feltham, 1 T. R. 334, was cited as authority for that proposition. I am of opinion that no such right as that claimed exists: The sport of fox- hunting must be carried on in subordination to the ordinary rights of property. Questions such as the present fortunately do not often arise, because those who pursue the sport of foxhunting do so in a reasonable spirit, and only go upon the lands of those whose consent is expressly, or may be assumed to be tacitly, given. There is no principle of law that justifies trespassing over the lands of others for the purpose of foxhunting. Tl.e case of Gundry r. Feltham, 1 T. R. .334, SECT. II.] PAUL V. SUMMERHAYES. 477 is distinguishable from the present case, and can be supported, if it is to be supported at all, only on the grounds suggested by Lord Ellen- borough in the ease of Lord Essex v. Capel, Locke on Game Laws, 45, to which we have been referred. The demurrer admitted that what was done was the only means for destroying the fox, and BuUcr, J., expressly puts his decision on that ground. The case was brought under the con- sideration of Lord Ellenborough in Lord Essex v. Capel, Locke on Game Laws, 45, and he was distinctly of opinion that, where any other object was involved than that of the destruction of a noxious animal, an entry on the land of another, against his will, could not be justi- fied. In the case of Lord Essex v. Capel, Locke on Game Laws, 45, it had been pleaded that the means adopted were the only means, and also that they were the ordinary and proper means of destroving the fox. But the evidence clearly showed that in the case of foxhunting, as ordinarily pursued, the object of destroying the animal is only col- lateral. The interest and excitement of the chase is the main object. Lord Ellenborough, than whom there could be no higher authority on such a point, was of opinion that where this was the case, and where the real object was not the mere destruction of a noxious animal, a trespass could not be justified. If persons pursue the fox for the purpose of sport or diversion, they must do so subject to the ordi- nary rights of propert3\ It would seem that there may be some doubt as to the validity of the justification even where the only object is the destruction of a noxious animal. The idea that there was such a right as that of pursuing a fox on another's land appears to have been based on a mere dictum of Brook, J., in the Year Book, 12 Hen. 8, p. 10. This dictum was not necessary for the decision of the case, for there the chasing of a fox was not in question, and the case went off on an entirely different point. It may well be doubted in my opinion whether, even if the case were one in which the destruction of a fox as a noxious animal was the sole object, there would be any justification. That question, however, does not, I think, arise here. It is enough to say that the case of Gundry v. Feltham, 1 T. R. 334, and the dictum of Brook, J., in the Year Book, 12 Hen. 8, p. 10, do not at all conflict with the opinion expressed by Lord Ellenborough in Lord Essex v. Capel, Locke on Game Laws, 45, which appears to me to be the true \Tiew of the law, \az., that a person has no right, in the pursuit of the fox as a sport, to come upon the land of another against his will. For these reasons our judgment must be for the respondent. Mellor, J. I am of the same opinion. The 1 & 2 Wm. 4, c. 32, has really no application to the case. The 31st section of the act contains certain provisions for preventing trespasses in pursuit of game. Foxes, however, are not game, and so not within the provisions of the section. In any case the exception in favour of foxhunting in the 35th section could only apply to the special provisions of the act for the protection of game, and could not affect the question whether a 478 KELEHER V. PUTNAM. [CHAP. V. trespass could be justified at common law in the course of hunting a fox, which is the real question in the case. That question has been fully discussed by my Lorfl. The counsel for the appellants did not venture to insist, in contravention of all common sense and experience, that the object of foxhunting, as ordinarily pursued, was the destruc- tion of a noxious animal which does mischief to farmers and others. The case of Gundry v. Feltham, 1 T. R. 334, is therefore distinguishable. The view taken by Lord Ellenborough in the case of Lord Essex v. Capel, Locke on Game Laws, 45, in which the question was really the same as that in the present case, was quite consistent with the decision in Gundry v. Feltham, 1 T. R. 334, and it appears to me to be the only view that is possible consistently with common sense and the ordinary rights of property.^ Judgment for the respondent. KELEHER v. PUTNAM. Supreme Court of New Hampshire, 1880. [Reported 60 A' . //. 30.] Trespass, for assault and false imprisonment. Plea, the general issue, with a brief statement. The plaintiff kept a small store in Manchester. Putnam, one of the defendants, was a county com- missioner. The evidence tended to show that the plaintiff was afflicted with insane delusions, and disturbed her neighbors and the inmates of the house where she boarded. Physicians examined her, and said she ought to be cared for. Complaint being made to Putnam, he N^isited her, and, in answer to his inquiries, she informed him she had friends in Lawrence, Mass., and requested to be sent there. He told her he would send a man with her. For that purpose he employed Reed, the other defendant, who called at the plaintiff's store with a carriage, and told her he had come to take her to Law- rence. She manifested a disposition not to go, and Reed partly pushed and partly carried her into the carriage, which was driven to the depot, where they entered a car and were taken to Lawrence. There he de- livered her to the city marshal, whom he informed of the circumstances. The court instructed the jury that if the plaintiff requested Putnam to take her to Lawrence, or if she was insane or dangerous, or dis- turbing the neighborhood, and if he acted solely from the motive of placing lier in the custody of her friends so that she might be properly cared for, and not to rid the county of a public charge, the defendants were not liable; and the plaintiff excepted. Verdict for the defendants. Bingham, J. A county commissioner has no authority over in- 1 See also Essex v. Capel, 4 Campb. Lives Ch. Just. 225, Ames Cas. Torts (3d ed.) 2l().— Ed. SKCT. II.] FIELDS V. STOKLEY. 479 sane persons by virtue of his office. The right of personal liberty is subject to some exceptions necessary to the common welfare of society. At common law a private citizen, without warrant, may lawfully seize and detain another in certain cases. It is justifiable to hold a man to restrain him from mischief. It is lawful to interfere in an affray which endangers the lives of the combatants. Other instances are enumerated in Colby v. Jackson, 12 N. H. 526. Under the right of self-defense it is lawful to seize and restrain any person incapable of controlling his own actions, whose being at large endangers the safety of others. But this is justifiable only when the urgency of the case demands immediate intervention. The right to exercise this summary remedy has its foundation in a reasonable necessity, and ceases with the necessity. A dangerous maniac may be restrained temporarily^ until he can be safely released, or can be arrested upon legal process, or committed to the asylum under legal authority. But not every in- sane person is dangerous. Nothing can be more harmless than some of the milder forms of insanity. Nor is it any justification that the de- fendants were actuated by a desire to promote the plaintiff's welfare. The right of personal liberty is deemed too sacred to be left to the determination of an irresponsible individual, however conscientious. The law gives these unfortunate persons the safeguards of legal pro- ceedings and the care of responsible guardians. Da\is v. Merrill, 47 N. H. 208; 22 Monthly Law Rep., 385; 6 South. Law Rev. (N. S.), 568; 3 Am. Law Rev., 193; Ray Insan., ss. 614-619. The legislature has established appropriate forms of proceeding for ascertaining their mental condition, imposing upon them, under the supervision of public functionaries, the restraint necessary to protect them from the imposi- tion of others, and subjecting them to such treatment as may restore their reason. If the pl&intilf requested to be taken to Lawrence, she revoked the license by resisting the removal. The instructions given to the jury were erroneous. The question was, whether the plaintiff's removal was reasonably necessary under the circumstances of the case. Cooley Torts, 176-179; Addison Torts, c. 12, s. 2. Verdict set aside. Stanley, J., did not sit: the others concurred. FIELDS V. STOKLEY. Supreme Court of Pennsylvania, 1882. [Reported 99 Pa. 206.] Trespass, by George F. Fields against William S. Stokley, to recover damages for the destruction of a wooden building belonging to the plaintiff which had been torn down and demolished by defend- 480 FIELDS V. STOKLEY. [CHAP. V. ant's orders. Pleas, not guilty, and a special plea, to which a demurrer was sustained. Defendant then filed an additional plea, all the facts set forth in which were admitted on the trial, to wit: That the defendant was, in September, 1876, at the date of the alleged trespass, mayor of Phila- delphia, and also a citizen, tax-payer, and property owner; that the United States Centennial Exhibition was then in progress at Fairmount Park; that the plaintiff and others, in violation of an ordinance of councils, had erected on Elm Avenue, bordering on the Exhibition grounds, numbers of wooden booths, sheds, shanties, and buildings, composed wholly of highly combustible materials, insufhciently pro- vided with chimneys or protected against fire, that of the plaintiff being occupied as a bar-room, and the resort of disorderly persons; that the said premises were in close proximity to the buildings of the city. State, and other buildings of the International Exposition, which were thereby imperiled. That the grand jury made a special present- ment to the quarter sessions of the said wooden buildings as common nuisances, dangerous to life and property, whereupon the judge then holding said court, ordered the defendant, as mayor, to abate said nui- sance by tearing down and removing said buildings, if the owners thereof, after forty-eight hours' notice, failed so to do ; and the plaintiff ha\'ing failed to remove the building in question after notice, the de- fendant caused the same to be torn down, doing as little damage as he reasonal)ly could, etc. It further appeared on the trial, before Prircr, J., that the plaintiff had leased the lots whereon the building in question was erected; that it was so erected without a permit from the building inspectors, and without authority from councils, the mayor ha\ang vetoed an ordinance which had been passed permitting its erection; the plaintiff and his builder admitted that they knew they were erecting the building in violation of law. The plaintiff requested the court to instruct the jury: "That the defendant acted wholly without authority of law in tearing down the building of the plaintiff, and he is liable for the damage resulting from his commands, and the jury should find a verdict for the plaintiff for the amount of damages which they believed, according to the evidence, he sustained." Answer. I do not affirm that point; on the contrary, I negative it, leaving to you the question of nuisance, or no nuisance; then if no nuisance, the plaintiff is entitled to any damage sustained; and if nuisance, if the plaintiff maintained a nuisance there, then he is not entitled to any damages." In the general charge the judge said: "The first question which arises in this case is, was or was not this building, thus taken down by the mayor, a nuisance? Was it such a common peril to the welfare of the citizens of Philadelphia, and to all who were to assemble here and visit the great exhibition, to the property exposed to danger, as to SECT. II.] FIELDS V. STOKLEY. 481 amount to a nuisance? . .• . If you find it to be a nuisance, then I say that the defendant must justify himself linder the fact that it was a nuisance, and especially acting as the head of a great municipality; acting under the order of a judge of a court; acting upon the present- ment of a grand jury, all tend to show that it was not mere private thought or feeling, that he was not prompted to it by any desire to do any particular wrong to this individual. . . . You will look at the whole case carefully, and at the facts and the law as I have given it to you, and if you find the plaintiif was maintaining a nuisance there, then he is not entitled to recover at all, and your verdict should be for the defendant. If, on the contrary, there was no nuisance there, then you will give such damages as the plaintiff would be entitled to recover under the e\'idence and facts as they have been testified to here." Verdict and judgment for defendant. The plaintiff took this writ of error, signing for error (1) the refusal of the court to affirm his point, as above, and (2) "that the entire charge was calculated to mislead the jury in this, that a wooden building erected on private freehold could be a public nuisance; and that, without conviction on indictment, or a decree of a court, an individual who was a mayor could abate it at his will." Sharswood, C. J. It appears by the record before us that it was expressly agreed, after the trial had progressed some time, that all the facts set forth in the special plea, not alread}' proved, should be considered as having been proved. The plea, inicr alia, avers that the houses mentioned in the declaration and for the removal of which this action was brought were composed wholly of liighly inflammal)le and combustible materials, and were insufficiently provided with chimneys and the usual and ordinary appliances for protection against fire, and were so used constantly, night and day, by drunken and disorderly persons, that the li^-es, health, and property of citizens were greatly endangered and the public safety imperiled. The question whether they were a public nuisance was fairly submitted to the jury by the learned judge below, and the verdict of the jury in favor of the defend- ant established that fact. Had the presentment by the grand jury been followed up by an indictment, trial, and conviction of the plaintiff below, the judgment thereon would have been that the nuisance sliould be abated, and would have been a conclusive justification of the action of the defendant. The defendant was the mayor of the city, and charged with the conservation of the peace and the protection of the property of the city. He was the representative of the city. It is true that a wooden building, though erected contrary to law, is not per sc a public nuisance. But it may become such by the manner in which it is used or allowed to be used. It is true that a private person not speciall\- aggrieved cannot abate a public nuisance, and especially where a statute provides a remedy for an offense created by it, that must be followed. It is well settled, however, that a private person, if specially ag- 482 FIELDS V. STOKLEY. [CHAP. V. grieved by a public nuisance, may abate it: In Rung v. Shoneberger, 2 Watts, 23, it was held by this court that the erection of a building upon the public square of a town was a public and not a private offense, and may be abated by any one aggrieved. In that Case the buildings were removed by officers of the town by virtue of the authority of the town council, and the persons in possession, and who had erected the buildings, had recovered in an action of trespass. The judgment, however, was reversed, Mr. Justice Rogers sa^-ing, "A nuisance, whether public or private, may be abated by the party aggrieved, so that it is done peaceably and without a riot. The reason (says Blackstone, 3 Com. 5) wh}' the law allows this private and summary method of doing justice, is because injuries which obstruct or arrest such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice." The jury, luider the charge of the learned judge, has found these build- ings to be of that character. The city of Philadelphia was the owner of large and valuable property in their neighborhood. Any hour of the day or night they were in danger of being set on fire by those who frequented them with the owner's permission. It is stated as a fact in the special plea, and of course a fact admitted by the agreement, that the public safety was imperiled. Nothing more was necessary to justify the action of the defendant. If the owner or tenant of a powder magazine should madly or wickedly insist upon smoking a cigar on the premises, can any one doubt that a policeman or even a neighbor could justify in trespass for forcibly ejecting him and his cigar from his own premises? It is true, that a private person assuming to abate a public nuisance takes upon himself the responsibility of proving to the satis- faction of a jury, the fact of nuisance. The official position of the de- fendant, as mayor of Philadelphia, did not relieve him from his per- sonal responsibility in this respect. But he has been sustained by the verdict of the jury, which is a justification of his alleged trespass. We are of opinion that this case was properly submitted to the determina- tion of the jury, that there was nothing in the charge calculated to mislead them, and that it would have been manifest error if the learned judge had affirmed the plaintiff's point, and thereby in efl^ect instructed the jury to find a verdict in his favor.^ Judgment affirmed. ^ See also Jones v. Williams, 11 M. & W. 176; Brown v. Perkins, 12 Gray, 89; Meeker v. Van Rensselaer, 15 Wend. 397. — Ed. SECT. II.] STATE V. GUT. 483 STATE V. GUT. Supreme Court of Minnesota, 1868. [Reported 13 Mirm. 341.] Wilson, C. J. The defendant was indicted for the murder of Charles Campbell, and ha\'ing been tried, was found guilty, on the 31st day of January, and sentenced on the 1st day of February following.^ . . . It is admitted in the bill of exceptions that the evidence on the part of the State established the fact that, at New Ulm, in the county of Brown, and State of Minnesota, on the 25th day of December, 1866, Alexander Campbell, the person named in the said indictment, and one George Liscome, were arrested at the saloon known as the National Hall saloon, in the said town of New Ulm, by the sheriff and ot^ier officers of the said county of Brown, and taken to and confined in the jail of said county, which said jail was but a short distance from said saloon. That at the time the said arrest was made a report was very generally circulated through said town to the effect that two half- breeds had murdered John Spinner. That in about twenty-five or thirty minutes after the same was first circulated, a large crowd of over one hundred men, very much excited, assembled at said jail. That great noise and confusion prevailed in said crowd, and the pre- vailing cry was, bring out the halfbreeds, hang the halfbreeds, out with the Indians. That one of the said witnesses for the State, to wit, George Schneider, testified that the crowd called out that Campbell was the brother of the halfbreed Campbell whom the people had recently hanged at Mankato for the murder of white people. That the defendant, John Gut, arrived at said jail after the said crowd had principally assembled there, and about the time the said crowd broke open the said jail and brought out the said Campbell; that the said Gut had no knowledge of the purpose of said crowd in assembling at said jail, until after his arrival there, and all he learned concerning the intention and purpose of said crowd was from the outcry of said crowd, and what he saw after his arrival, at said jail; that when said Gut was reproved by the witness for the stabljing of the prisoners, he replied: These two halfbreeds killed my best friend, John Spinner, and I will kill them ; let me alone or I will stab you ! That said crowd did break open said jail, and did take out said Campbell, and did hang him by the neck until he was dead, and that said John Gut did partici- pate in the doings of said crowd by stabbing said Campbell with a knife, both before and after he was hanged by said crowd. That said Campbell and Liscome before they were arrested in said saloon were * Only so much of the opinion as considers the defense discussed is given. — Ed. 484 O'BRIEN v. CUNARD STEAMSHIP CO. [CHAP. V. dressed as follows: Said Campbell had on his head a hood made of dark blue cloth, or blanket, such as is worn by the Sioux Indians. That one of said parties, either Campbell or Liscome, had on Indian moccasins. That both said Campbell and Liscome wore belts on the outside of all their clothing, in which belts were knife sheaths, and when seen in said saloon by the State witnesses, they had their knives in their hands. . . . The e^^dence offered to prove that a state of war existed between the United States and Sioux Indians, and that the State, through its legal authorities, had offered a reward for the killing of any male of that tribe, was properly rejected. That it is legal to kill an alien enemy in the heat and exercise of war, is undeniable : but to kill such an enemy after he has laid down his arms, and especially when he is confined in prison, is murder. 1 Bish. Cr. Law, 102; 2 lb., 668. The evidence that war existed between the Sioux Indians and the L^nited States, and that the deceased was supposed to be a Sioux Indian, was therefore immaterial. It is not pretended that there was a law of our State authorizing the killing of a male of that tribe, and the proclamation or order of any officer of the State could not make that right which is wrong, or legal which is illegal. If such a proclamation or order was made, and if on account thereof any ignorant person was misled into the commission of crime, it is for the governor to determine whether that would be a proper case for the exercise of executive clemency. O'BRIEN V. CUNARD STEAMSHIP CO. Supreme Judicial Court of Massachusetts, 1891. [Reported 154 Mass. 272.] Tort, for an assault, and for negligently vaccinating the plaintiff, a steerage passenger on the steamship Catalonia. Trial in the Superior Court, l)efore Staples, J., who ruled that, upon the e\'idence, the plaintiff could not maintain the action, and ordered a verdict for the defendant; and the plaintiff alleged exceptions. The nature of the evidence appears in the opinion. Knowlton, J. This case presents two questions: first, whether there was any evidence to warrant the jury in finding that the de- fendant, by any of its servants or agents, committed an assault on the plaintiff; secondly, whether there was evidence on which the jury could ha^•e found that the defendant was guilty of negligence towards the plaintiff. To sustain the first count, which was for an alleged assault, the plaintift" relied on the fact that the surgeon who was em- SECT. II.] O'BRIEN V. CUNARD STEAMSHIP CO. 485 ployed by the defendant vaccinated her on shipboard, while she was on her passage from Queenstown to Boston. On this branch of the case the question is whether there was any evidence that the surgeon used force upon the plaintiff against her will. In determining whether the act was lawful or unlawful, the surgeon's conduct must be con- sidered in connection with the circumstances. If the plaintiff's be- ha\ior was such as to indicate consent on her part, he was justified in his act, whatever her unexpressed feelings may have been. In deter- mining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings. Ford v. Ford, 143 Mass. 577, 578. McCarthy v. Boston & Lowell Railroad, 148 Mass. 550, 552. It is undisputed that at Boston there are strict quarantine regulations in regard to the examination of immigrants, to see that they are protected from small-pox by vaccination, and that only those persons who bold a certificate from the medical officer of the steam- ship, stating that they are so protected, are permitted to land without detention in quarantine or vaccination by the port physician. It appears that the defendant is accustomed to have its surgeons vacci- nate all immigrants who desire it, and who are not protected by pre- vious vaccination, and give them a certificate which is accepted at quarantine as evidence of their protection. Notices of the regulations at quarantine, and of the willingness of the ship's medical officer to vaccinate such as needed vaccination, were posted about the ship, in various languages, and on the day when the operation was performed the surgeon had a right to presume that she and the other women who were vaccinated understood the importance and purpose of vac- cination for those who bore no marks to show that they were pro- tected. By the plaintiff's testimony, wliich in this particular is un- disputed, it appears that about two hundred women passengers were assembled below, and she understood from conversation with them that thev were to be vaccinated ; that she stood about fifteen feet from the surgeon, and saw them form in a line and pass in turn before him; that he "examined their arms, and, passing some of them by, pro- ceeded to vaccinate those that had no mark"; that she did not hear him say anything to any of them; that upon being passed by they each received a card and went on deck; that when her turn came she showed him her arm, and he looked at if and said there was no mark, and that she should be vaccinated ; that she told him she had been vac- cinated before and it left no mark ; " that he then said nothing, that he should vaccinate her again"; that she held up her arm to be vac- cinated; that no one touched her; that she did not tell him that she did not want to be vaccinated; and that she took the ticket whicii he gave her certifying that he had vaccinated her, and used it at quaran- tine. She was one of a large number of women who were vaccinated on that occasion, without, so far as appears, a word of objection from any of them. They all indicated by their conduct that they desired 486 SCANLON V. WEDGER. [CHAP. V- to avail themselves of the provisions made for their benefit. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a card which would save her from detention at quarantine, and to be vaccinated, if necessary, for that purpose. Viewing his conduct in the light of the circumstances, it was lawful ; and there was no evidence tending to show that it was not. The ruling of the court on this part of the case was correct.^ Exceptions overruled. ^ SCANLON V. WEDGER. Supreme Judicial Court of Massachusetts, 1892. [Reported 156 Mass. 462.] Allen, J. The several plaintiffs were injured by the explosion of a bomb or shell during a display of fireworks in Broadway Square, which was a public highway in Chelsea. This display was made by the defendant Wedger, who acted under a license from the mayor and aldermen of Chelsea for a display of fireworks in Broadway Square on that evening, under Pub. Sts. c. 102, § 55. A verdict was returned for the defendant, and the jury made a special finding that the defend- ant in firing the bomb exercised reasonable care. The case comes to us on a report which states that if, on the facts contained therein, and on said finding, the plaintiffs are entitled to recover, the case is to be remitted to the Superior Court for the assessment of damages; other- wise, judgments are to be entered for the defendant. It is therefore to be considered whether it appears affirmatively that the plaintiffs were entitled to "recover. The plaintiffs apparently were present at the display of fireworks as voluntary spectators, and were of ordinary intelligence. No fact is stated in the report to show the contrary, nor has any suggestion ; to that effect been made in the argument. The plaintiffs have not rested their claims at all upon the ground that they were merely travel- ers upon the highway, or that they were unaware of the nature and risk of the display. The report says : " A considerable number of per- sons were attracted to said square by said meeting, and said bombs ')|| and other fireworks which were being exploded there. ... A portion of the center of said square, about forty by sixty feet, was roped off by the police of said Chelsea, and said bombs or shells were fired off within the space so inclosed, and no spectators were allowed to be within said inclosure. . . . The plaintiffs were lawfully in said high- way at the time of the explosion of said mortar, and near said ropes, and were in the exercise of due care." ' The remainder of the opinion, dealing with the question of negHgence, is omitted. — Ed. SECT. II.] HOWLAND V. BLAKE MANUFACTURING CO. 487 The bombs or shells are described in the report, and they were to be thrown from mortars into the air, it being intended that they should explode in the air atid display colored lights. They were apparently a common form of fireworks, such as has long been in use. The ground on which the plaintiiTs place their several cases is, that the Pub. Sts. c. 102, § 55, did not authorize the mayor and aldermen of Chelsea to license the firing of anything but rockets, crackers, squibs, or serpents, and that therefore the act of the defendant in firing bombs or shells was unauthorized and unlawful. It is not contended that it was at the time supposed, either by the defendant or by anybody else, that the license was insufficient to warrant the display which was actually made. The licensee was the chairman of a committee which had a political meeting in charge, and the defendant acted at the re- quest of the committee, and was directed by them as to when and where to fire off the fireworks. Under this state of things it must be considered that the plaintiffs were content to abide the chance of personal injury not caused by negligence, and that it is immaterial whether there was or was not a valid license for the display. If an ordinary traveler upon the high- way had been injured, different reasons would be applicable. Vos- burgh V. Moak, 1 Cush. 453. Jenne v. Sutton, 14 Vroom, 257. Con- radt V. Clauve, 93 Ind. 476. But a voluntary spectator, who is present merely for the purpose of witnessing the display, must be held to con- sent to it, and he suffers no legal wrong if accidentally injured without negligence on the part of any one, although the show was unauthorized. He takes the risk. See Pollock on Torts, 138-144. ^ In the opinion of a majority of the court, the entry must be. Judgments for the defendant. Morton, J., dissented. HOWLAND V. BLAKE MANUFACTURING CO. Supreme Judicial Court of Massachusetts, 1892. [Reported 156 Mass. 543.] Tort, by Alfred H. Howland and George A. Ellis, copartners doing business as Howland and Ellis, for libel. The declaration alleged that the plaintiffs were civil engineers and contractors, and that the defendant published, circulated, and caused to be published and circulated, a false and malicious libel concerning the plaintiffs, a copy whereof was annexed, wherel)y the plaintiffs were greatly damaged in their business as well as in their reputation, and especially had suffered great damage and loss of profits on contracts 1 See also Johnson v. New York, 186 N. Y. 139. — Ed. 488 SHINGLEMEYER V. WRIGHT. [CHAP. V. and employment in their business as civil engineers and contractors for the building and construction and superintendence of the con- struction of water works. Trial in the Superior Court before Blodqett, J. John G. Berry, called as a witness for the plaintiffs, testified that he was a civil engineer in the employ of the plaintiffs; that on March 15, 1889, he went to the office of the defendant, and there saw Foran, who gave him a copy of the Maynard Enterprise extra, saying, " Read it at your leisure, and show it to your water committee"; that the wit- ness had told Foran that he had friends in Marion, Ohio, who were interested in the water works which were to be put in there by the plaintiffs; that thereupon Foran gave a start-, and said, "Hold on a minute, I have got something to show you"; and that Foran then went to his desk, got out the paper, and handed it to him. On cross-examination, the witness testified that he went there with the purpose and intention of getting one of those papers if he could; and that he did not tell Foran that he was in the plaintiffs' employ. "^ The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions. Knowlton, J. . . . The jury were instructed that, "if the defend- ant gave a copy of the libel to Berry, there having been no previous publication by the defendant, and Berry in procuring such copy acted as the agent of the plaintift's, and at their request, and such publica- tion was procured with the view to bringing action, the publication was pri\aleged." This was in accordance with \'iews expressed by English judges, and was sound in principle. Rogers ». Clifton, 3 Bos. & P. 587, 592. Duke of Brunswick c. Harmer, 14 Q. B. 185. King V. Waring, 5 Esp. 13. Smith v. Wood,. 3 Camp. 323. Odgers, Libel and Slander, 229. If the defendant is guilty of no wrong against the plamtift' except a wrong invited and procured by the plaintift' for the purpose of making it the foundation of an action, it would be most unjust that the procurer of the wrongful act should be permitted to profit by it. Exceptions overruled. ■ SHINGLEMEYER v. WRIGHT. Supreme Court of Michigan, 1900. , [Reported 124 Mich. 230.] This is a suit by one Katherina Shinglemeyer against Oliver A. Wright by capias for an alleged slander claimed to have been uttered 1 Only so much of the evidence, record, and opinion as discusses the question of plaintiffs' consent is given. — Ed. SECT, II.] SHINGLEMEYEE V. WRIGHT. 489 by defendant to one Henry, a policeman, upon the 16th of July, 1898, and for a false imprisonment.^ Plaintiff testified that . . . she went to [defendant's] office in the Chamber of Commerce Building; that Oliver Wright said, "Did you bring my wheel back?" and that she said, " I ain't got your old wheel"; and he said, "Yes, you have stolen my wheel," and said that he could prove it. At the time of this conversation there was no one present besides plaintiff and the defendant. She also claims that he stated that he would have a warrant out for her if she did not leave his office. Thereupon she went to the telephone, and called up the cen- tral police station, and asked them to send over an officer. After she had called up the police station she left the office, went down the ele- vator, and near the door met the policeman Henry. She brought the policeman back to Mr. Wright's office, and herself stated to the policeman that Mr. Wright accused her of stealing his wheel, and that she wanted to see whether he could do so. The policeman went into Mr. Wright's private office. Thomas Henry, the officer, testified that when he entered the office he asked what the trouble was; that the plaintiff said first, "He accuses me of stealing his bicycle, and says I am a thief, and I am going to make him prove it"; that the defendant said Detectives High and Larkins were looking for her, and that he [defendant] had learned that a woman had checked a man's wheel from Detroit to Toledo by the Lake Shore baggageman.^ Long, J. In regard to the statement by defendant in the presence of the officer Henry, it was not a publication for which the law gives a remedy. She herself solicited the statement, and sent for the officer for the express purpose of having the defendant repeat the statement in his presence. It would not have been stated to him except by her invi- tation. She might have left the respondent's office. She waited some time for the officer to come, and then left, and, meeting the officer as she emerged from the building, came back with him for no other pur- pose than to ask him to repeat the statement in his presence. In Cristman v. Cristman, 36 111. App. 567, plaintiff was suspected of an assault with intent to murder. The defendant suspected the plaintiff, and so stated to an officer. Plaintiff took one King with him, and went to defendant's house. King asked her, in the presence of plaintifT, if she had any idea who did it, to which defendant replied : " There is only two mean enough to do it, and Johnnie is one of them. Johnnie is the only one that would do it, and he is the one that did do it." Held that plaintiff could not recover. Where one received a letter containing libelous statements, and himself read the letter to others, held that he could not recover. S^dvis v. Miller, 96 Tenn. 94, 33 S. W. 1 Only so much of the case as deals with tlie alleged slander is given. — Ed. 2 In this statement of the evidence only so much is given as bears on the alleged slander. — Ed. 490 - VOSBURG V. PUTNEY. [CHAP. V- 921. There is no difference in principle between reading a letter to another and soliciting a person to make a similar verbal statement. Where one sought from the superintendent of a railroad company a letter of recommendation for his friend, which letter was given, con- taining a statement that the person had left the service of the company during a strike, held that this was not publishing a libel. Railroad Co. V. Delaney, 52 S. W. 151, 45 L. R. A. 600. The following cases sustain the same doctrine: Bank v. Bader, 59 Minn. 329, 61 N. \V. 328; Heller r. Howard, 11 111. App. 554; Fon\nlle v. McNease, 1 Dud. (S. C.) 303; King v. Waring, 5 Esp. 13; Smith v. Wood, 3 Camp. 323; Haynes v. Leland, 29 Me. 233. Plaintiff repeatedly testified that she sent for the policeman to see if she did steal his wheel, and that she was going to make him prove it. The maxim. Volenti non fit injuria, applies. VOSBURG V. PUTNEY. Supreme Court of Wisconsin, 1891. [Reported 80 Wis. 523.] The action was brought to recover damages for an assault and bat- tery, alleged to have been committed by the defendant upon the plain- tiff on February 20, 1889. The answer is a general denial. At the date of the alleged assault the plaintiff was a little more than fourteen years of age, and the defendant a little less than twelve years of age. The injury complained of was caused by a kick inflicted by de- fendant upon the leg of the plaintiff, a little below the knee. The trans- action occurred in a schoolroom in Waukesha, during school hours, both parties being pupils in the school. Lyon, J.^ Had the parties been upon the playgrounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this action. Some considera- tion is due to the implied license of the playgrounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful. Hence we are of the opinion that, under the cAddence and verdict, the action may be sustained. * Part only of the opinion is given. — Ed. SECT. II.] MARKLEY V. WHITMAN.r 491 // MARKLEY v. WHITMAN. Supreme Court of Michigan, 1893. , [Reported 95 Mich. 236.] Long, J. Plaintiff and defendant were both students at the Buchan- nan High School. On February 7, 1890, while the plaintiff was on his way home from school, the defendant and others of the scholars were engaged in what is called a "rush" or "horse game." The practice of the game is to find some one in advance, when the others form in a line, each one in the rear pushing the one in advance of him, and so on through the line until the one to be "rushed," who knows notliing of what is coming, is rushed upon by the one in his rear, and pushed or rushed. On the day in question the plaintiff, while going towards home on the sidewalk, was to be rushed. The defendant was in his immediate rear, and engaged in the game. When pushed, he rushed upon the plaintiff, striking him with his hands between the shoulders with such violence that the plaintiff was thrown nearly to the ground. Imme- diately thereafter he lost his voice above a whisper, and has never recovered its use. His neck was nearly fractured, and for several months he was compelled to take medical treatment in Chicago. It is claimed that he suffered great pain, and has not fully recovered. This action was brought to recover for the injuries thus occasioned. On the trial in the court below, the plaintiff had verdict and judgment for $2,500. Defendant brings error. The errors relied upon relate principally to the charge of the court. It was claimed on the trial in the court below : 1. That the push against the plaintiff was not an assault, and therefore not actionable. 2. That it was a pure accident. 3. That it was not a dangerous game, and the results which fol- lowed from the push could not have been anticipated. 4. That the defendant only put himself in a position ready to be pushed if the spirit of frolic should be entered into by those behind him, and his rush upon the plaintiff was neither in\'ited nor approved. 5. That there was no unlawful intent to injure the plaintiff. It is insisted that the court below, in its charge, entirely ignored the claim of the defendant made on the trial; and also that the plaintiff was one of the school-fellows, and stood in a different position to the defendant than would a stranger. The court instructed the jury substantially that, if the plaintiff was participating in the play, or in any way contributed to the injury, he could not recover; that, to entitle the plaintiff' to recover, he must show by a preponderance of evi- dence that the injury was occasioned by the push given by the defend- 492 MARKLEY V. WHITMAN. [CHAP, V. ant, and that the defendant either wilfully pushed the plaintiff, or was voluntarily engaged in the game, which must be found to be dan- gerous, and one reasonably calculated to be dangerous to innocent persons lawfully traveling along the sidewalk upon which the play was conducted. The court below further instructed the jury as fol- lows: "If the game in question was a dangerous one to indulge in on the street and at the time in question, and if the defendant was voluntarily engaged in such play at the time of the accident, and if the plaintiff was not participating in such sport, and was not guilty of conduct which in any way contributed to the injury, but, on the contrary, was lawfully traveling on the sidewalk, and in the exercise of reasonable care, and if the defendant, while so playing, pushed the plaintiff and injured him, he is liable; and in such case it is no excuse for him to say that he himself was pushed against the plaintiff by some other boy." This charge fully protected the rights of the defendant, and was as favorable to him as the facts of the case warranted. In fact, on the trial it was little in dispute that the injury occurred exactly as the plaintiff claimed. He was peacea])ly walking along the street, and had no intimation that he was to be "rushed." He was not participating in the game, and, if his testimony is true, never had taken part in it, and on that occasion was not anticipating that he was the victim selected to be rushed. It was an assault upon him, and the court cor- rectly stated the rules of law applicable to the case; at least, the de- fendant had no reason to complain. It is evident that the defendant was one of those engaged in the game, which, upon a bare statement of the manner in which it is to be played, must be regarded as dangerous. He voluntarily engaged in it, and his conduct occasioned the injury. It was unlawful to "rush" the plaintiff under the circumstances shown, and the defendant must be held responsible for the consequences which followed. It may be, and probably is, true that those taking part in it did not anticipate the injurious effects upon the plaintiff; but that does not lessen the plaintiff's pain and suffering, or make the act less unlawful. The plaintiff, while passing along the street, and not en- gaged in the sport, had the same right to be protected from such an assault as a stranger would have had, and the assault upon him was as unlawful as it would have been upon a stranger. We find no error in the case, and the judgment must be affirmed, with costs. Hooker, C. J., McGrath and Grant, JJ., concurred. Mont- gomery, J., did not sit.^ 1 See also Fitzgerald v. Cavin, 110 Mass. 153; Wartman v. Swindell, 54 N. J. L. 589, 25 Atl. 35(3. — Ed. SECT. II.] OLLET V. PITTSBURG, CINCINNATI, CHICAGO, ETC., RY. CO. 493 ^ OLLET V. PITTSBURG, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY CO. i/ Supreme Court of Pennsylvania, 1902. [Reported 201 Pa. 361.] Trespass for an alleged unlawful imprisonment. At the trial the court entered a compulsory nonsuit which it sub- sequently refused to take off, Shafer, J., filing the following opinion: The action is for false imprisonment. The plaintiff was a boy seventeen years of age, and while endeavoring to climb upon a freight train of the defendant company fell from it. The wheel ran over his foot, crushing the front part of it. He was immediately taken to a private house, the only one in the neighborhood, and the crew of the freight train on which he was injured having run to Carnegie, a dis- tance of one or two miles, came back again to the house with the engine, and finding the boy in the house, and no one present except a young woman who lived there, took him on the engine to Carnegie, where the company's physician was in attendance. An uncle of the boy who lived in Carnegie was also at the station when the boy was brought there, and upon the ad\ace of the company's doctor, and ac- companied by the uncle, he was taken to the West Penn Hpspital, where his foot was afterwards amputated. At the time of the accident one or more other boys were present, and one of them had gone to Carnegie to call the family physician of the boy's father, and another had gone to the house of the boy's father to call him, the distance to each being a mile or two, and the roads being very muddy. When the crew of the train got to the house they were told by the boy that his family physician had been sent for, and that he did not want to go the hospital, but they insisted that he should; carried him out; put him on the tender of the engine. This removal of the boy from the house by the railroad to Carnegie, and thence to the hospital, is the false imprisonment complained of. That the crew of the train, in doing what they did, were endeavoring to act the part of the good Samaritan is perfectly plain, and we do not see how a .jury could be allowed to find otherwise from the evidence. The circumstances certainly seemed to call for great haste, and one who endeavors to assist his neighbor who is in great danger and distress is certainly not liable for a mistake in judgment; nor does there appear to have been any such mistake made in this case. In addition, we do not see how the railroad company could be held 494 ' MOHR V. WILLIAMS. [CHAP. V. liable for a false imprisonment on these acts of its employees, which were certainly not done within the scope of their employment, which was that of a crew of a freight train. The motion to take ofl' the nonsuit is refused. Per Curiam. This judgment is affirmed on the opinion of the court below refusing to take off the nonsuit. 1 l/ MOHR V. WILLIAMS. Supreme Court of Minnesota, 1905. [Reported 95 Minn. 261.] Action in the district court for Ramsey County to recover $20,000 damages for assault and battery consisting of an alleged unauthorized surgical operation performed by defendant upon plaintiff's ear. The case was tried before Oliii B. Lewis, J., and a jury, which rendered a verdict in favor of plaintiff for $14,322.50. From separate orders granting a motion for ja new trial and denying a motion for judgment, notwithstanding the verdict, plaintiff and defendant respectively ap- pealed. Orders affirmed. Brown, J. Defendant is a physician and surgeon of standing and character, making disorders of the ear a specialty, and having an extensive practice in the city of St. Paul. He was consulted by plain- tiff, who complained to him of trouble with her right ear, and, at her request, made an examination of that organ for the purpose of ascer- taining its condition. He also at the same time examined her left ear, but, owing to foreign substances therein, was unable to make a full and complete diagnosis at that time. The examination of her right ear disclosed a large perforation in the lower portion of the drum membrane, and a large polyp in the middle ear, which indicated that some of the small bones of the middle ear (ossicles) were probably dis- eased. He informed plaintiff' of the result of his examination, and advised an operation for the purpose of removing the polyp and dis- eased ossicles. After consultation with her family physician, and one or two further consultations with defendant, plaintiff decided to sub- mit to the proposed operation. She was not informed that her left ear was in any way diseased, and understood that the necessity for an operation applied to her right ear only. She repaired to the hospital, and was placed under the influence of anaesthetics; and, after being made unconscious, defendant made a thorough examination of her left ear, and found it in a more serious c'ondition than her right one. A small perforation was discovered high up in the drum membrane, SECT. II.] MOHR V. WILLIAMS. 495 hooded, and with granulated edges, and the bone of the inner wall of the middle ear was diseased and dead. He called this discovery to the attention of Dr. Davis — plaintiff's family physician, who attended the operation at her request — who also examined the ear and confirmed defendant in his diagnosis. Defendant also further examined the right ear, and found its condition less serious than expected, and finally con- cluded that the left, instead of the right, should be operated upon, devoting to the right ear other treatment. He then performed the operation of ossiculectomy on plaintiff's left ear, removing a portion of the drum membrane, and scraping away the diseased portion of the inner wall of the ear. The operation was in every way successful and skillfully performed. It is claimed by plaintiff that the operation greatly impaired her hearing, seriously injured her person, and, not hav- ing been consented to by her, was wrongful and unlawful, constituting an assault and battery; and she brought this action to recover damages therefor. The trial in the court below resulted in a verdict for plaintiff for $14,322.50. Defendant thereafter moved the court for judgment not- withstanding the verdict, on the ground that, on the evidence pre- sented, plaintiff was not entitled to recover, or, if that relief was denied, for a new trial on the ground, among others, that the verdict was ex- cessive, appearing to have been given under the influence of passi9n and prejudice.^ "We come then to a consideration of the questions presented by defendant's appeal from the order denying his motion for judgment notwithstanding the verdict. It is contended that final judgment should be ordered in his favor for the following reasons: (a) That it appears from the evidence received on the trial that plaintiff consented to the operation on her left ear. (6) If the court shall find that no such consent was given, that, under the circumstances disclosed by the record, no consent was necessary, (c) That, under the facts disclosed, an action for assault and battery will not lie, it appearing conclusively, as counsel urge, that there is a total lack of evidence showing or tend- ing to show malice or an evil intent on the part of defendant, or that the operation was negligently performed. We shall consider first the question whether, under the circumstances shown in the record, the consent of plaintiff to the operation was necessary. If, under the particular facts of this case, such consent was unnecessary, no recovery can be had, for the evidence fairly shows that the operation complained of was skillfully performed and of a generally beneficial nature. But if the consent of plaintiff was neces- sary, then the further questions presented become important. This particular question is new in this State. At least, no case has been called to our attention wherein it has been discussed or dpcided, and very few cases are cited from other courts. We have given it very * So much of the opinion as discusses the question of a new trial is omitted. — Ed. 490 MOIIR V. WILLIAMS. [CHAP. V. deliberate consideration, and are unable to concur with counsel for defendant in their contention that the consent of plaintiff was un- necessary. The evidence tends to show that, upon the first examination of plaintiff, defendant pronounced the left ear in good condition, and that, at the time plaintiff' repaired to the hospital to submit to the operation on her right ear, she was under the impression that no difficulty ex- isted as to the left. In fact, she testified that she had not pre\nously experienced any trouble with that organ. It cannot be doubted that ordinarily the patient must be consulted, and his consent given, before a physician may operate upon him. It was said in the case of Pratt v. Davis, 37 Chicago Leg. News, 213, referred to and commented on in 60 Cent. Law J., 452: "Under a free government, at least, the free citizen's first and greatest right, which underlies all others — the right to the inviolability of his per- son; in other words, the right to himself — is the subject of universal acquiescence, and this'right necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise, and prescribe (which are at least necessary first steps in treat- ment and care), to violate, without permission, the bodily integrity of his patient by a major or capital operation, placing him under an anjesthetic for that purpose, and operating upon him without his consent or knowledge." 1 Kinkead Torts, § 375, states the general rule on this subject as follows: "The patient must be the final arbiter as to whether he shall take his chances with the operation, or take his chances of li^•ing with- out it. Such is the natural right of the indi\'idual, which the law recognizes as a legal right. Consent, therefore, of an indi\'idual, must be either expressly or impliedly given before a surgeon may have the right to operate." There is logic in the principle thus stated, for in all other trades, professions, or occupations contracts are entered into by the mutual agreement of the interested parties, and are required to be performed in accordance with their letter and spirit. No reason occurs to us why the same rule should not apply between physician and patient. If the physician adAases his patient to submit to a particular operation, and the patient weighs the dangers and risks incident to its performance, and finally consents, he thereby, in effect, enters into a contract authorizing his physician to operate to the extent of the con- sent given, but no further. It is not, however, contended by defendant that under ordinary cir- cumstances consent is unnecessary, but that, under the particular cir- cumstances of this case, consent was implied ; that it was an emergency case, such as to authorize the operation without express consent or permission. The medical profession has made signal progress in solv- ing the problems of health and disease, and they may justly point with pride to the advancements made in supplementing nature and correct- SECT. II.] MOHR V. WILLIAMS. 497 ing deformities, and relieving pain and suffering. The physician im- pHedly contracts that he possesses, and will exercise in the treatment of patients, skill and learning, and that he will exercise reasonable care and exert his best judgment to bring about favorable results. The methods of treatment are committed almost exclusively to his judg- ment, but we are aware of no rule or principle of law which would extend to him free license respecting surgical operations. Reasonable latitude must, however, be allowed the physician in a particular case; and we would not lay down any rule which would unreasonably inter- fere with the exercise of his discretion, or prevent him from taking such measures as his judgment dictated for the welfare of the patient in a case of emergency. If a person should be injured to the extent of rendering him unconscious, and his injuries were of such a nature as to require prompt surgical attention, a physician called to attend him would be justified in applying such medical or surgical treatment as might reasonably be necessary for the preservation of his life or limb, and consent on the part of the injured person would be implied. And again, if, in the course of an operation to which the patient consented, the physician should discover conditions not anticipated before the operation was commenced, and wliich, if not removed, would endanger the life or health of the patient, he would, though no express consent was obtained or given, be justified in extending the operation to remove and overcome them. But such is not the case at bar. The diseased condition of plaintiff's left ear was not discovered in the course of an operation on the right which was authorized, but upon an independent examination of that organ, made after the authorized operation was found unnecessary. Nor is the e\ndence such as to justify the court in holding, as a matter of law, that it was such an affection as would result immediately in the serious injury of plaintiff, or such an emergency as to justify pro- ceeding without her consent. She had experienced no particular dif- ficulty with that ear, and the questions as to when its diseased condition would become alarming or fatal, and whether there was an immediate necessity for an operation, were, under the evidence, questions of fact for the jury. The contention of defendant that the operation was consented to by plaintiff is not sustained by the evidence. At least, the e\adence was such as to take the question to the jury. This contention is based upon the fact that she was represented on the occasion in question by her family physician; that the condition of her left ear was made known to him, and the propriety of an operation thereon suggested, to which he made no objection. It is urged that by his conduct he assented to it, and that plaintiff was bound thereby. It is not claimed that he gave his express consent. It is not disputed but that the family physician of plaintiff was present on the occasion of the opera- tion, and at her request. But the purpose of his presence was not that 498 MOHR V. WILLIAMS. [CHAP. V. he might participate in the operation, nor does it appear that -he was authorized to consent to any change in the one originally proposed to be made. Plaintiff was naturally nervous and fearful of the conse- quences of being placed imder the influence of anaesthetics, and the presence of her family physician was requested under the impression that it would allay and calm her fears. The e\'idence made the question one of fact for the jury to determine. The last contention of defendant is that the act complained of did not amount to an assault and battery. This is based upon the theory that, as plaintift''s left ear was in fact diseased, in a condition dangerous and threatening to her health, the operation was necessary, and, ha\nng been skillfully performed at a time when plaintiff had requested a like operation on the other ear, the charge of assault and battery cannot be sustained; that, in \new of these conditions, and the claim that there was no negligence on the part of defendant, and an entire absence of any e\'idence tending to show an e\i\ intent, the court should say, as a matter of law, that no assault and battery was committed, even though she did not consent to the operation. In other words, that the absence of a showing that defendant was actuated by a wrongful intent, or guilty of negligence, relieves the act of defendant from the charge of an unlawful assault and battery. We are unable to reach that conclusion, though the contention is not without merit. It would seem to follow from what has been said on the other features of the case that the act of defendant amounted at least to a technical assault and battery. If the operation was performed without plaintiff's consent, and the circumstances were not such as to justify its performance without, it was wrongful; and, if it was wrongful, it was unlawful. As remarked in 1 Jaggard, Torts, 437, every person has a right to complete immunity of his person from physical interference of others, except in so far as contact may be necessary under the general doctrine of pri\'ilege; and any unlawful or unauthorized touching of the person of another, except it be in the spirit of pleasantry, constitutes an assault and battery. In the case at bar, as we have already seen, the question whether defendant's act in performing the operation upon plaintiff was authorized was a ques- tion for the jury to determine. If it was unauthorized, then it was, within what we have said, unlawful. It was a violent assault, not a mere pleasantry; and, even though no negligence is shown, it was wrongful and unlawful. The case is unlike a criminal prosecution for assault and battery, for there an unlawful intent must be shown. But that rule does not apply to a civil action, to maintain which it is sufficient to show that the assault complained of was wrongful and un- lawful or the result of negligence. 1 Addison, Torts, 689; Lander v. Seaver, 32 Vt. 114; Vosburg v. Putney, 80 Wis. 523, 50 N. W. 403. The amount of plaintiff's recovery, if she is entitled to recover at all, must depend upon the character and extent of the injury inflicted SECT. II.] BAKKEK V. WELSH. 499 upon her, in determining which the nature of the malady intended to be healed and the beneficial nature of the operation should be taken into consideration, as well as the good faith of the defendant.^ Orders affirmed. BAKKER V. WELSH. Supreme Court of Michigan, 1906. [Reported 144 Mich. 632.] Moore, J. Stephen Bakker died upon the operating table at a hospital in Grand Rapids, while defendant Apted was administering to him chloroform preparatory to the removal of a tumor by the de- fendant Welsh. The plaintiff is the father of the deceased, and, after being appointed administrator of the estate of deceased, brought this suit, his counsel stating upon the trial that his claim was under what is known by the lawyers and the courts as the "Death Act." The trial judge directed a verdict in favor of the defendants. The case is brought here by wTit of error. Stephen Bakker was seventeen years old. He lived with his father on a farm. He was a large, healthy-appearing person. He had a tumor upon his left ear about the size of a dove's egg. Some time before his death he had received treatment, and the tumor nearly disappeared; but prior to the middle of February, 1904, it reappeared, and he came to Grand Rapids to consult some physician about it. He had an aunt about sixty years old and two adult sisters li^^ng in Grand Rapids, uith whom he went to the office of the defendant Welsh, who was a special- ist and had practiced medicine and surgery for a long time. After an ex- amination he was told it would be necessary to have a microscopic examination made to determine the character of the growth, and he was sent to Dr. Williams, another specialist, who made an incision and obtained a specimen from the tumor, and young Bakker returned to his father's. On the following Saturday or Sunday he again went to the office of Dr. Welsh, accompanied by at least one of his sisters, and was informed of the report made by Dr. Williams, and was told it would be best to have the tumor removed by a surgical operation at the hospital. The testimony is somewhat conflicting as to what was said. The sister claims Stephen objected to taking an anesthetic, and was told there was no danger. The doctor says that he told him there was al- ways some danger in taking an anaesthetic, but that he ad\'ised him to halve the operation performed. On Tuesday afternoon Stephen, with his aunt and at least one sister, went again to the office of Dr. Welsh, 1 See also Pratt v. Davis, 224 111. 300, 79 N. E. 562; Schloendorff v. Society of New York Hospital, 211 N. Y. 12.5, 105 N. E. 92. — Ed. 500 BAKKER V. WELSH. [ciIAP. V. and was sent from there to the hospital, where they all understood an operation should be performed the following day. In the meantime Dr. Welsh had arranged with Dr. Apted, an expert in the administra- tion of anaesthetics, to administer the chloroform. ' A careful exami- nation of the heart and lungs of the young man was made. They appeared to be normal, and in the presence of the hospital nurse and the doctors, with the usual appliances for successful operations at hand, young Bakker was put upon the table. Dr. Apted began to ad- minister chloroform by means of the mask and drop method, and had administered about one-third of an ounce, taking from scAen to ten minutes in which to do it, and Dr. Welsh was just about to commence the operation, when suddenly the heart of the patient stopped beat- ing. Every means known to the profession was used to revive the patient, but he was already dead. Tlie record shows the father did not know an operation was to be performed. There were two counts in the declaration. Stripped of legal verbiage, the first count stated that Stephen Bakker was a minor and it was known to the defendant Welsh he was a minor, and that it was Dr. Welsh's duty to inform the father and get his consent before entering upon this operation. The second count charges what is known as malpractice or want of skill in the operation, and that young Bakker died by reason of an improper ad- ministration of an anresthetic. The record, instead of disclosing want of skill in the operation, shows quite the contrary. We have no hesi- tancy in saving the trial judge was quite right on so saying when he directed a verdict. We then come to the question: Are defendants Hable in this action because they engaged in this operation without obtaining the consent of the father? Counsel for the plaintiff are very frank with the court, and say in their brief: "We are unable to aid the court by reference to any decisions in point. We have devoted much time and research to this interesting question, but have been unable to find any decisions of a higher court either supporting or opposing the plaintiff's contention, and we will therefore have to be content by calling the court's attention to such general reasoning as leads us to take the \'iew herein contended for." They then argue at length, and with a good deal of force, that, as the father is the natural guardian of the child, and is entitled to his custody and his ser\aces, he cannot be deprived of them without his consent. We quote: "We contend that it is wrong in every sense, except in cases of emergences for a physician and surgeon to enter upon a dangerous operation, or, as in this case, the administration of an ansesthetic, con- ceded to be always accompanied with danger that death may result, without the knowledge and consent of the parent or guardian. It is against public policy and the sacred rights we have in our children that surgeons should take them in charge without our knowledge and send SECT. III.] CAMPBELL V. RACE. 501 to US a corpse as the first notice or intimation of their relation to the case." On the part of defendants it is contended: 1. Consent of the father was unnecessary. 2. The lack of consent was not the cause of the boy's death, hence not actionable. 3. That if it were, the action does not sur\ave under the death act. 4. That the action, if any, is in thfe father, not in the administrator. We do not think it necessary to a disposition of the case to decide all of the defenses interposed by the defendant. The record shows a young fellow almost grown into manhood, who has been for a consid- erable period of time, while living with his father, afflicted with a tumor. He has attempted, while at home, to have it removed by ab- sorption. It does disappear, but after a time it reappears. He goes up to a large city, and with an aunt and two sisters, all adults, submits to examination, receives some ad\nce, and goes back to his father with an agreement to return later to receive the report of the expert who is to make the microscopic examination. He returns accordingly, and, with at least some of his adult relatives, arranges to have a surgical operation of a not very dangerous character performed. Preparations are made for its performance. There is nothing in the record to indi- cate that, if the consent of the father had been asked, it would not have been freely given. There is nothing in the record to indicate to the doctors, before entering upon the operation, that the father did not approve of his son's going with his aunt and adult sisters, and con- sulting a physician as to his ailment, and following his advice. We think it would be altogether too harsh a rule to say that, under the circumstances disclosed by this record, in a suit under the statute declared upon, the defendants should be held liable because they did not obtain the consent of the father to the administration of the anaesthetic. Judgment is affirmed McAlvay, Grant, Ostrander, and Hooker, JJ., concurred. SECTION III. Privilege to Act. CAMPBELL V. RACE. Supreme Judicial Court of Massachusetts, 1852. [Reported 7 Cush. 408.] This was an action of trespass for breaking and entering the plain- tiff's close in the town of Mount Washington, and was tried in the court of common pleas, before Byington, J. The defendant pleaded 502 CAMPBELL V. RACE. [CHAP. V. the general issue, and specified in defense a right of way of necessity, resulting from the impassable state of the adjoining highway, by ob- structions with snow. The defendant introduced CAndence that at the time when the tres- pass was alleged to have been committed he was traveling with his team on a highway running east and west, which led to and intersected a highway running north and south, which latter highway led to and intersected another highway, on which the defendant had occasion to go with his team; and the usual, proper, and only mode of getting on which, by a highway, was by passing over the two highways first named, when they were in a condition fit for travel; but at the time of the alleged trespass, they were both obstructed, and rendered impassable by snow-drifts; because of which obstructions, the defendant turned out of the first highway with his team, at a place where it was rendered impassable as aforesaid, and passed over the adjoining fields of the plaintiff, doing no unnecessary damage, and returned into the second highway, as soon as he had passed the obstructions which rendered both impassable. And he contended, that the highways being thus rendered impassable, he had a way of necessity over the plaintiff's ad- joining fields, or that his so passing was excusable, and not a trespass. But the judge ruled, that these facts constituted no defense to the action; and a verdict having been returned accordingly for the plain- tiff, the defendant alleged exceptions. BiGELOW, J. It is not controverted by the counsel for the plaintiff, that the rule of law is well settled in England, that where a highway be- comes obstructed and impassable from temporary causes, a traveler has a right to go extra viam upon adjoining lands, without being guilty of trespass. The rule is so laid down in the elementary books. 2 Bl. Com., 36; Woolrych on Ways, 50, 51 ; 3 Cruise Dig., 89; Wellbeloved on Ways, 38; and it is fully supported by the adjudged cases. Henn's Case, W. Jones, 296; 3 Salk., 182; 1 Saund., 323, note 3; Absor v. French, 2 Show. 28; Young v. , 1 Ld. Raym. 725; Taylor v. Whitehead, 2 Doug. 745; Bullard v. Harrison, 4"^^!. & S. 387, 393. Such being the admitted rule of law, as settled by the English authori- ties, it was urged in behalf of the plaintiff in the present case, that it had ne^■er been recognized or sustained by American authors or cases. But we do not find such to be the fact. On the contrary, Mr. Dane, whose great learning and familiar acquaintance with the principles of the common law, and their practical application at an early period in this commonwealth, entitle his opinion to very great weight, adopts the rule, as declared in the leading case of Taylor v. Whitehead, ubi supra, which he says "is the latest on the point, and settles the law." 3 Dane Ab.,258. And so Chancellor Kent states the rule. 3 Kent Com., 424. We are not aware of any case in which the question has been dis- tinctly raised and adjudicated in this country; but there are several decisions in New York, in which the rule has been incidentally recog- SECT. III.] CAMPBELL V. RACE. 503 nized and treated as well-settled law. Holmes v. Seely, 19 Wend. 507; Williams v. Safford, 7 Barb. 309; Newkirk v. Sabler, 9 Barb. 652, These authorities would seem to be quite sufficient to justify us in the recognition of the rule. But the rule itself is founded on the established principles of the common law, and is in accordance with the fixed and uniform usage of the community. Indeed, one of the strongest argu- ments in support of it is, that it has always been practiced upon and acquiesced in, without objection, throughout the New England States. This accounts satisfactorily for the absence of any adjudication upon the question, in our courts, and is a sufficient answer to the objection upon this ground, which was urged upon us by the learned counsel for the plaintiff. When a right has been long claimed and exercised, with- out denial or objection, a strong presumption is, raised, that the right is well founded. The plaintiff's counsel is under a misapprehension in supposing that the authorities in support of the rule rest upon any peculiar or excep- tional principle of law. They are based upon the familiar and well- settled doctrine, that to justify or excuse an alleged trespass, inevitable necessity or accident must be shown. If a traveler in a highway, by unexpected and unforeseen occurrences, such as a sudden flood, heavy drifts of snow, or the falling of a tree, is shut out from the traveled paths, so that he cannot reach his destination, without passing upon adjacent lands, he is certainly under a necessity so to do. It is essential to the act to be done, without which it cannot be accomplished. Serious inconveniences, to say the least, would follow, especially in a climate like our own, if this right were denied to those who have occasion to pass over the public ways. Not only would intercourse and business be sometimes suspended, but life itself would be endangered. In hilly and mountainous regions, as well as in exposed places near the sea coast, severe and unforeseen storms not unfrequently overtake the traveler, and render highways suddenly impassable, co that to advance or retreat by the ordinary path, is alike impossible. In such cases, the only escape is, by turning out of the usually traveled way, and seeking an outlet over the fields adjoining the highway. If a necessity is not created, under such circumstances, sufficient to justify or excuse a traveler, it is difficult to imagine a case which would come within the admitted rule of law. To hold a party guilty of a wrongful invasion of another's rights, for passing over land adjacent to the highway, under the pressure of such a necessity, would be pushing indixndual rights of property to an unreasonable extent, and giving them a protection beyond that which finds a sanction in the rules of law. Such a tem- porary and unavoidable use of private property, must be regarded as one of those incidental burdens to which all property in a civilized community is subject. In fact, the rule is sometimes justified upon the ground of public convenience and necessity. Highways being estab- lished for public service, and for the use and benefit of the whole com- 504 CAMPBELL V. RACE. [CHAP. V. munity, a due regard for the welfare of all requires, that when tempo- rarily obstructed, the right of travel should not be interrupted. In the words of Lord Mansfield, "it is for the general good that people should be entitled to pass in another line." It is a maxim of the com- mon law, that where public convenience and necessity come in conflict with private right, the latter must yield to the former. A person trav- eling on a highway, is in the exercise of a public, and not a private right. If he is compelled, by impassable obstructions, to leave the way, and go upon adjoining lands, he is still in the exercise of the same right. The rule does not, therefore, violate the principle that indi^^dual con- venience must always be held subordinate to private rights, but clearly falls within that maxim, jvhich makes public convenience and necessity paramount. It was urged in argument that the effect of establishing this rule of law would be to appropriate private property to public use without pro\ading any means of compensation to the owner. If such an acci- dental, occasional, and temporary use of land can be regarded as an appropriation of private property to a public use, entitling the owner to compensation, which may well be doubted, still the decisive answer to this objection is quite obvious. The right to go cvtra viam, in case of temporary and impassable obstructions, being one of the legal inci- dents or consequences which attaches to a highway through private property, it must be assumed, that the right to the use of land adjoin- ing the road was taken into consideration and proper allowance made therefor, when the land was originally appropriated for the highway, and that the damages were then estimated and fixed, for the private injury which might thereby be occasioned. , It was also suggested, that the statutes of the commonwealth, im- posing the duty on towns to keep public ways in repair, and rendering them liable for damages occasioned by defects therein, furnish ample remedies in cases of obstructions, and do away with the necessity of establishing the rule of the common law in this commonwealth, which gives the right in such cases to pass over adjacent lands. But this is not so. Towns are not liable for damages in those cases to which this rule of the common law would most frequently be applicable — of obstructions,* occasioned by sudden and recent causes, which have not existed for the space of twenty -four hours, and of which the towns have had no notice. Besides, the statute liability of towns does not extend to damages such as would ordinarily arise from the total obstruction of a highway, being expressly confined to cases of bodily injuries and damages to property. St. 1850, c. 5; Canning r. WilHamstown, 1 Cush. 451; Harwood v. Lowell, 4 Cush. 310; Brailey v. Southborough, 6 Cush. 141. From what has already been said, the limitations and restrictions of the right to go upon adjacent lands in case of obstructions in the highway can be readily inferred. Having its origin in necessity, it must SECT. III.] CAMPBELL V. RACE. 505 be limited by that necessity; cessante ratione, cessat ipsa lex. Such a right is not to be exercised from convenience merely, nor when, by the exercise of due care, after notice of obstructions, other ways may be selected and the obstructions avoided. But it is to be confined to those cases of inevitable necessity or unavoidable accident, arising from sudden and recent causes which have occasioned temporary and impas- sable obstructions in the highway. What shall constitute such inevita- ble necessity or unavoidable accident, must depend upon the various circumstances attending each particular case. The nature of the ob- struction in the road, the length of time during which it has existed, the vicinity or distance of other public ways, the exigencies of the traveler, are some of the many considerations which would enter into the inquiry, and upon which it is the exclusive province of the jury to pass, in order to determine whether any necessity really existed, which would justify or excuse the traveler. In the case at bar, this question was wholly withdrawn from the consideration of the jury, by the rul- ing of the court. It will therefore be necessary to send the case to a new trial in the court of common pleas. Exceptions sustained. Bacon, Maxims, reg. 5. If a man steal viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or bark, and one of them get to some plank, or on the boat side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor b}- misadventure, but justifiable. So if diver's felons be in a gaol, and the gaol by casualty is set on fire, whereby the prisoners get forth, this is no escape, nor breaking of prison. So upon the statute that ever}' merchant that setteth his merchandise on land without satisfying the customer or agreeing for it (which agreement is construed to be in certainty), shall forfeit his merchandise ; and it is so that by tempest a great quantity of the merchandise is cast overboard, whereby the merchant agrees with the customer by estimation, which falleth out short of the truth ; yet the over quantity is not forfeited, b}' reason of the necessit}* ; where note that necessity dispenseth with the direct letter of a statute law. 508 REGINA V. DUDLEY. ' [CHAP. V, REGINA V. DUDLEY. ' , Queen's Bench Division. 1884. {Reported 15 Cox C. C. 624, U Q. B. D. 273.] Lord Coleridge, C. J.^ The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker on the high seas on tlie 25th day of July in tlie present year. They were tried before my brotlier Huddleston at Exeter on the Gth day of November, and under the direction of m}' learned brother, the jury returned a special verdict, the legal etfect of which has been argued before us, and on which we are now to pronounce judgment. The special verdict is as follows. [TAe learned judge read the special verdict. 1 From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to ter- rible temptation and to sufferings which might break down the bodil}- power of the strongest man and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to tlie jury, and are to be found recorded in my learned brother's notes ; but nevertheless this is clear, — that the prisoners put to death a weak and unoffending boy upon the chance of preserv- ing their own lives by feeding upon his flesh and blood after he was killed, and with a certainty of depriving him of any possible chance of survival. The verdict finds in terms that " if the men had not fed upon the bod}' of the boy, they would probabl}- not have survived," and that " the boy, being in a much weaker condition, was likely to have died before them." They might possil)!}' have been picked up next day by a passing ship : they might possibly not have been picked u[) at all ; in either case it is obvious that the killing of the bov would have been an unnecessary and profitless act. It is found b}' the ver- dict that the boy was incapable of resistance, and, in fact, made none ; and it is not even suggested that his death was due to an}' violence on his part attem[)ted against, or even so mucli as feared by, them who killed him. Under these circumstances the jury say thev are ignorant whethcn- those who killed him were guilty of murder, and have referred it to this court to say what is the legal consequence which follows from the facts which tlioy liave found. There remains to be consid- ered the real question in the case, whether killing, under the circum- stances set forth in the verdict, be or be not murder. The contention that it could be auvthing else was to the minds of us all both new and strange ; and we stopped the Attorney-General in his negative argu- ment that we might hear what could be said in support of a proposi- tion which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. All, no doubt, that can ^ Part of the opinion only is given. SECT. III.] REGINA V. DUDLEY. 507 be said has been urged before us, and we ai'e now to consider and determine wiiat it amounts to. First, it is said that it follows, from various definitions of murder in books of authority — which definitions imph', if they do not state, the doctrhie — thaty in order to save voiir own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilt}' of any illegal act whatever towards you or any one else. But if these defini- tions be looked at, they will not be found to sustain the contention. The earliest in point of date is the passage cited to us from Bracton, who wrote in the reign of Henry III. It was at one time the fashion to discredit Bracton, as Mr. Reeves tells us, because he was supposed to mingle too much of the canonist and civilian with the common lawyer. There is now no such feeling ; but the passage upon homi- cide, on which reliance is placed, is a remarkable example of the kind of writing which may explain it. Sin and crime are spoken of as apparently equally illegal ; and the crime of murder, it is expressly declared, ma}' be committed Ihigiia vel facto ; so that a man like Hero, " done to death b}' slanderous tongues," would, it seems, in the opinion of Bracton, be a person in respect of whom might be grounded a legal indictment for murder. But in the very jjassage as to necessity on which reliance has been placed, it is clear that Bracton is speaking of necessit}' in the ordinary' sense, ■ — the repelling by violence, vio- lence justified so far as it was necessary for the object, anv illegal violence used towards one's self If, says Bracton (Lib. iii. Art. De Corona, cap. 4, fol. 120), the necessity be emtahlUs et ecddere posset absque occisione, tunc erit reus homicidU, — words which show clearl}' that he is thinking of physical danger, from which escape ma\- be pos- sible, and that inevitabilis necessitas, of which he speaks as justifying homicide, is a necessity of the same nature. It is, if possible, yet clearer that the doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his view the necessity which justifies homicide is that only which has always been, and is now, considered a justification. "In all these cases of homicide bj' necessit}'," savs he, '• as in pursuit of a felon, in killing him that assaults to rob, or comes to burn or break a house, or the like, which are in themselves no felony" (1 Hale P. C. 491). Again, he says tliat the necessity which justifies homicide is of two kinds : " (1) That necessitv which is of a private nature ; (2) That necessity which re- lates to the public justice and safety. The former is that necessitv which obligeth a man^ to his own defence and safeguard; and this takes in these inquiries : (1) What may be done for the safeguard of a man's own life," — and then follow three other heads not necessary to pursue. Then Lord Hale proceeds : " (1 ) As touching the first of these, namely, homicide in defence of a man's own life, which is usuallv styled se defendendo"' (1 Hale P. C. 47.S). It is not possible to use words more clear to show that Lord Hale regarded tlie private noces- sitj which justified, and alone justified, the taking the life of another 508 REGINA V. DUDLEY. [CHAP. V. for the safeguard of one's own to be what is common!}' called self- defence. But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear ; for in the chapter in which he deals with the exemption created by compulsion or necessity, he thus expresses himself: " If a man be desperately assaulted and in peril of death and cannot otherwise escape, unless to satisfy his assailant's tur\' he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder if he commit the fact, for lie ought rather to die himself than to kill an innocent ; but if he cannot otlierwise save his own life, the law permits him in his own defence to kill the assailant, for, by the violence of the assault and the offence committed upon him b}- the assailant himself, the law of nature and necessity hath made him his own protectot' cum deblto moderamhie inculpdtre tutelm (1 Hale P. C. 51). But, further still : Lord Hale in the following chapter deals with the position as- serted by the casuists and sanctioned, as he says, by Grotius and Puf- fendorf, that in a case of extreme necessit}', either of hunger or cloth- ing, '• theft is no theft, or at least not punishable as theft; and some even of our own lawyers have asserted the same ; " " but," says Lord Hale, "I take it that here in England that rule, at least bj- the laws of England, is false ; and therefore if a person, being under necessity for want of victuals or clothes, shall upon that account clandestine!}' and cDiimo furandi steal another man's goods, it is a felon}' and a crime by the laws of England punishable with death " (1 Hale P. C. 54). If therefore Lord Hale is clear, as he is, that extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it justified murder? It is satisfactory to find that an- other great authority, second probably only to Lord Hale, speaks with' the same unhesitating clearness on this matter. Sir Michael Foster, in the third chapter of his "Discourse on Homicide," deals with the sub- ject of Homicide Founded in Necessity ; and the whole chapter im- plies, and is insensible unless it does imply, that in the view of Sir Michael Foster, necessity and self-defence (which in section 1 he defines as "opposing force to force even to the death'') are con- vertible terms. There is no hint, no trace of the doctrine now con- tended for ; the whole reasoning of the chapter is entirely inconsistent with it. In East (1 East P. C. 271), the whole chapter on Homicide by Ne- cessity is taken up with an elaborate discussion of the limits witliin which necessity — in Sir Michael Foster's sense (given above) — of self-defence is a justification of or excuse for homicide. There is a short section at the end (p. 294) very generally and very doubtfully expressed, in which the only instance discussed is the well-known one of two shipwrecked men on a plank able to sustain only one of them ; and the conclusion is left by .Sir Edward P^ast entirely undetermined. What is true of Sir Fldwrnd East is true also of Mr. Serjeant Haw- kins. The whole of his chapter on Justifiable Homicide assumes that SECT. III.] REGINA V. DUDLEY. 509 the only justifiable homicide of a private nature is in defence against force of a man's person, house, or goods. In the 26th section we find again the case of the two shipwrecked men and the single plauk, with this significant expression from a careful writer : '' It is said to be jus- titiable." So, too, Dalton, c. 150, clearly considers necessity and, self-defence, in Sir Michael Foster's sense of that expression, to be convertible terms, — though he prints without comment Lord Bacon's instance of the two men on one plank as a quotation from Lord Bacon, adding nothing whatever to it of his own ; and there is a remarkable passage at page 339, in which he says that even in the case of a mur- derous assault upon a man, yet before he may take the life of the man who assaults him, even in self-defence, cuncta jvius tentanda. The passage in Staundforde, on which almost the whole of the dicta we have been considering are built, when it comes to be examined, does not warrant the conclusion which has been derived from it. The necessit}' to justif}' homicide must be, he sa^'s, inevitable ; and the example which he gives to illustrate his meaning is the very same which has just been cited from Dalton. showing that the necessitv he was speaking of was a physical necessity and the self-defence a defence against physical violence. Russell merel}' repeats the language of the old text-books and adds no new authority nor any fresh considerations. Is there, then, an}^ authority for the proposition which has been pre- sented to us ? Decided cases there are none. The case of the seven English sailors referred to bv the commentator on Grolius and by Puffendorf has been discovered by a gentleman of the Bar — wlio communicated with my brother Huddleston — to convey- the authorit}', if it conveys so much, of a single judge of the island of St. Kitts, when that island was possessed parti}- b}- France and partly bv this country, somewhere about the 3'ear 1G41. It is mentioned in a medical treatise published at Amsterdam, and is altogether, as authority in an English court, as unsatisfactor\- as possible. The American case cited b}' my brother Stephen in his digest from Wharton on Homicide, page 237, in which it was decided, correctly, indeed, that sailors had no right to throw passengers overboard to save themselves, but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot, can hardly, as my brother Stephen says, be an authority satisfactory to a court in this countr}-.^ The observations of Lord Mansfield in tlie ^ "The case does not become 'a case of necessity' unless all oidiuary means of self- preservation have been exhausted. The peril must be instant, overwlielming ; leaving no alternative but to lose our own life, or to take the life of another person. . . . For example : suppose that two persons who owe no duty to one another that is not mutual should, by accident not attributable to either, be placed in a situation where both cannot survive. Neither is bound to save the other's life b}' sacrificing his own ; nor would either commit a crime in saving his own life in a struggle for the only means of safety. But in applj-ing this law, we must look not only to the jeopardy in which the parties are, but also to the relations in which they stand. The slayer must be under no obligation to make his own safety secondary to the safety of others. . . . 510 EEGINA V. DUDLEY. [CIIAP. V, case of Rex v. Stratton and others (21 St. Tr. 1045), striking and excellent as they are, were delivered in a political trial, where the question was whether a political necessity had arisen for deposing a o-overnor of Madras. But they have little application to tlie case before us, which must be decided on very different considerations.^ The one real authority of former times is Lord Bacon, who in his com- mentary on the maxim, Necessitas inducit priv Helium quoad jura prirata, \siys down the law as follows: "Necessity carrieth a privi- lege in itself. Necessity is of three sorts, — necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First, of conservation of life. If a man steals viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side, to keep him- self above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misad- venture, but justifiable." On this it is to be observed that Lord Bacon's proposition that stealing to satisfy- hunger is no larceny is hardl}' supported by Staundforde, whom he cites for it, and is ex- pressly contradicted bj- Lord Hale in the passage already cited. And for the proposition as to the plank or boat, it is said to be derived from the canonists ; at an}' rate he cites no authorit}' for it, and it must stand upon his own. Lord Bacon was great even as a lawyer ; but it is permissible to much smaller men, relying upon principle and on the authorit}' of others the equals and even the superiors of Lord Bacon as lawyers, to question the soundness of his dictum. There The passenger stands in a position different from that of the officers and seamen ; it is the sailor who must encounter the liardships and perils of the voyage. . . . The captain, indeed, and a sufficient number of seamen to navigate the boat, must be preserved. . . . This rule may be deemed a harsh one towards the sailor, who may thus far have done his duty; but when the danger is so extreme that the only hope is in sacrificing either a sailor or a passenger, any alternative is hard ; and would it not be the hardest of any, to sacrifice a passenger in order to save a supernumerary sailor ? . . . When the ship is in no danger of sinking, but all sustenance is exhausted, and a sacrifice of one person is necessary to appease the hunger of others, the selection is by lot. This mode is resorted to as the fairest mode ; and, in some sort, as an appeal to God for the selection of the victim." — Baldwin, .1. (to the jury) in United States V. Holmes, 1 Wall. Jun. ], 22. ^ " Wherever necessity forces a man to do an illegal act, fm-ces him to do it, it justi- fies liim, because no man can be guilty of a crime without the will and intention of his mind. It must be voluntary ; therefore a madman cannot commit a crime. A man who is absolutely by natural necessity forced, his will does not go along with the act ; and therefore in the case of natural necessity (and, by the by, whenever a question turns upon natural necessity it is a question to be determined by a jury^ and by a, jury only ; it is a question upon fact and the degree of fact) if a man is forced to com- mit acts of high treason, if it ajipears really force, and such as human nature could not be expected to resist, and the jury are of that opinion, the man is not then guilty of high treason. In a case of homicide, if a man was attacked, and in danger, and so on in a variety of instances, natural necessity certainl\- justifies." — Louu M.\NS FIELD (to the jury) in Kex v. Stratton. 21 How. St. Tr. 1045, 1223. SECT. III.] REGINA V. DUDLEY. 511 are mauy conceivable states of tbings in which it might possibh' be true ; but if Lord Bacon meant to lay down the broad proposition tliat a man may save liis life by killing, if necessary, an innocent and lui offending neighbor, it certainly is not law at the present day. Tliere remains the authority of my brother Stephen, who both in his Digest (Art. 32) and in his " History of the Criminal Law " (vol. ii. p. 108), uses language perhaps wide enough to cover this case. The language is somewhat vague in both i)laces, but it does not in either place cover this case of necessity, and we have the best autliorit}- for saying tfjat it was not meant to cover it. If it had been necessary, we must with true deference have differed from him ; but it is satisfactory to know that we have, probably at least, arrived at no conclusion in which, if he had been a member of the court, he would have been unable to agree. Neither are we in conflict with any opinion expressed upon this subject by the learned persons wlio formed tlie Commission for prepar- ing the Criminal Code. The}- say on this subject: '• We are not pre- pared to suggest that necessity should in every case be a justification ; we are equally unprepared to suggest that necessit}' should in no case be a defence. We judge it better to leave such questions to be dealt with when, if ever, the}' arise in practice, by applying the principles of law to the circumstances of the particular case." It would have been satisfac- torj' to us if these eminent persons could have told us whether the received definitions of legal necessity were in their judgment correct and exhaustive, and, if not, in what wa}' the}' should be amended ; but as it is we have, as they say, " to apply the principles of law to the circumstances of this particular case." Now, except for the pur- pose of testing how far tlie conservation of a man's own life is in ail cases and under all circumstances an absolute, unqualified, and para- mount duty, we exclude from our consideration all the incidents of war. We are dealing with a case of private homicide, not one im- posed upon men in tlie service of their sovereign or in the defence of their country. Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognized excuse admitted by the law. It is further admitted that there was in this case no such excuse, un- less the killing was justified by what has been called necessity. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and though many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence, and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one's life is, gener- ally speaking, a duty ; but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and 512 KEGINA V. DUDLEY. [CHAI'. V. children, as in the noble ease of the "Birkenhead," — these duties impose on men the moral necessity, not of the preservation, but of the sacrifice, of their lives for others, from which in no country — least of all, it is to be hoped, in England — will men ever shrink, as indeed they have not shrunk. It is not correct, therefore, to say that there is any absolute and unqualified necessity to preserve one's life. "iVeces- se est ut earn, non ut vivam^" is a saying of a Roman officer quoted by Lord Bacon himself with high eulogy in the very chapter on Ne- ceftsit}" to which so much reference has been made. It would be a ver}' eas}^ and cheap display of commonplace learning to quote from Greek and Latin authors, — from Horace, from Juvenal, from Cicero, from Eurii)ides, — passage after passage in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from tlie principles of heathen ethics. It is enough in a Christian country to remind ourselves of the Great Example which we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? B3' what measure is the com- parative value of lives to be measured? Is it to be strength, or intel- lect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justifj' him in delib- erately taking another's life to save his own. In this case the weakest, the j-oungest, the most unresisting was chosen. Was it more neces- sar}' to kill him than one of the grown men? The answer must be, No. " So sjiake the Fiend ; and with necessity, The tyrant's plea, excused his devilish deeds." It is not suggested that in this particular case the "deeds" were " devilish ; " but it is quite plain that such a principle, once admitted, might be made the legal cloak for unbridled passion and atrocious crime. There is no path safe for judges to tread but to ascertain the law to the best of their abilitv and to declare it according to their judgment, and if in any case the law appears to be too severe on indi- viduals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has entrusted to the hands fittest to dispense it. It must not be supposed that, in refusing to admit temp- tation to be an excuse for crime, it is forgotten how terrible the temp- tation was, how awful the sufl!"ering, how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves and to la}' down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in an}' manner the legal definition of the crime. It is there- fore our duty to declare that the prisoners' act in tliis case was wilful murder; that the facts as stated in the verdict are no legal justification of the homicide. Judgment fi>r the Crown. SECT. III.] REX V. CRUTCIILEY. 513 REX V. CRUTCHLEY. Berkshire Assizes. 1831. [Reported 5 Currington & Payne, 1833.] Indictment on the stat. 7 & 8 Geo. 4, c. 30, s. 4, for destro^-ing a threshing machine, tlie propert}- of a person named Austin. There were other counts for damaging it with intent to destroy it, and for damagino; it witii intent to render it useless. It appeared that, about ten o'clock in the night of the 22d of November, 1830, a mob came to the farm of Mr. Austin, and broke his threshing machine to pieces. It was proved that the prisoner was with this mob, and that he gave the threshing machine a blow with a sledge- hammer. Mr. Justice Patteson allowed the witnesses for the prosecution to be asked, in cross-examination, whether many persons had not been com- pelled to join this mob against their will, and whether the mob did not compel each person to give one blow to each threshing machine that they broke. For the defence William Davis was called. He was the gamekeeper of Mrs. Bainbridge, in whose service the prisoner was an under-keeper. He stated that, being on the watch at Mrs. Bainbridge's preserves, the mob laid hold of himself and the prisoner, and compelled both to go with them for the purpose of breaking threshing machines. Mr. Justice Patteson allowed the witness to state that, before the prisoner and himself had gone many yards with the mob, the}- agreed to run away from the mob the first opportunity. The witness stated that he ran away from the mob in about ten minutes, and that the prisoner joined him in about a quarter of an hour after that time, and that they then returned to their watching at the preserves. Verdict, JVot guilty.^ 1 "With regard to the argument you have heard, that these piisoiiers were iiidueed to join Thorn, and to continue with him from a fear of personal violence to themselves, I am bound to tell you, that where parties for .such a reason are induced to join a mischievous man, it is not their fear of violence to themselves which can excuse their conduct to others. You probably, gentlemen, never saw two men tried at a criminal bar for an offence which they had jointly committed, where one of them had not lieen to a certain extent in fear of the other, and had not been influenced by that fear in the conduct he pursued ; yet that circumstance has never been received by the law as an excuse for his crime, and the law is, that no man, from a fear of consequences to himself, has a right to make himself a ]>arty to committing mischief on mankind." Lord Denman, C. J., in Reg. v. Tyler, 8 C. & P. 616. —Ed. 0l4 ARP V. STATE. [chap. V. EESPUBLICA V. McCARTY. Supreme Court of Pennsylvania. 1781. [Reported 2 Dallas, 86.] McKean, C. J.^ The crime imputed to the defendant by the indict- ment is that of levying war, by joining the armies of the King of Great Britain. Enlisting, or procuring any person to be enlisted, m the service of the eneiiiy, is clearly an act of treason. By the defend- ant's own confession it api)ears that he actually enlisted in a corps belonging to the enemy ; but it also appears tliat he had previously been taken prisoner by them, and confined at Wilmington. He remained, however, with the British troops for ten or eleven months, during which he might easily have accomplished his escape, and it must be remem- bered that in the eye of the law nothing will excuse the act of joining an enemy but the fear of immediate death ; not the fear of any infe- rior personal injury, nor the apprehension of any outrage upon property. But had the defendant enlisted merely from the fear of famishing, and with a sincere intention to make his escape, the fear could not surely always continue, nor could his intention remain unexecuted for so long a period. ARP V. STATE. Supreme Court of Alabama. 1893. [Reported 97 Ala. 5.] Coleman, J.^ . . . The court was asked to give the following charge : " If the jury believe from the evidence that the defendant killed Pogue under duress, under corai)ulsion from a necessity, under threats of im- mediate impending peril to his own life, such as to take away the free agency of the defendant, then he is not guilty." The court refused this charge, and the refusal is assigned as error. This brings up for con- sideration the question, what is the law when one person, under com- pulsion or fear of great bodih" harm to himself, takes the life of an innocent person ; and what is his duty when placed under such circumstances? Tlie fact that defendant had been in the employment of Burkhalter is no excuse. The command of a superior to an inferior, of a parent 1 To the jury only so much of the charge i? giveu as deals with the question of com- pulsion. — Ed. 2 Only so much of the opinion as discusses the question of compulsion is given, — Ed. SECT. III.] AKP V. STATE. 515 to a child, of a master to a servant, or of a principal to his agent, will not justify a criminal act done in pursuance of such command, 1 Bishop, § 355 ; Reese v. State, 73 Ala. 18 ; 4 Blackstone, § 27. In a learned discussion of the question, to be found in Leading Crim- inal Cases, vol. i, p. 81, and note on p. 85, by Bennett and Heard, it is declared that " for certain crimes the wife is responsible, although com- mitted under the compulsion of her husband. Such are murder," etc. To the same effect is the text in 14 Am. & Eng. Encyc. of Law, p. 649 ; and this court gave sanction to this rule in Bibb v. State, 94 Ala. 31 ; 10 So. Rep. 506. In Ohio a contrary rule prevails in regard to tlie wife. Davis v. State, 15 Ohio, 72 ; 45 Amer. Dec. 559. In Arkansas there is a statute specially exempting married women from liability; when " acting under the threats, commands, or coercion of their hus- bands ; " but it was held under this act there was no presumption in favor of the wife accused of murder, and that it was incumbent on her to show that the crime was done under the influence of such coercion, threats, or commands. Edwards v. State, 27 Ark. 493, reported in 1 Criminal Law, by Green, p. 741. In the case of Beal r. The State of Georgia, 72 Ga. Rep. 200, and also in the case of The People v. Miller, 66 Cal. 468, the question arose upon the sufficiency of the testimony of a witness to authorize a con- viction for a felony, it being contended that the witness was an accom- plice. In both cases the witness was under fourteen years of age. It was held that if the witness acted under threats and compulsion, lie was not an accomplice. The defendants were convicted in both cases. In the case of Rex v. Crutchley, 5 C. & P. 133, the defendant was indicted for breaking a threshing machine. The defendant was allowed to prove that he was compelled by a mob to go with them and com- pelled to hammer the threshing machine, and was also permitted to pr6ve that he ran away at the first opportunity. In Hawkins' Pleas of the Crown, vol. i, c. 28, § 26, it is said : "The killing of an innocent person in defence of a man's self is said to be justifiable in some special cases, as if two be shipwrecked together, and one of them get upon a plank to save himself, and the otlier also, having no other means to save his life, get upon the same plank, and finding it not able to support them both, thrusts the other from it, whereby he is drowned, it seems that he who thus preserved his own life at the expense of that other ma}" justify the fact Iw the inevitable necessit}' of the case." In 1 Hale's Pleas of the Crown, c. vii, § 50, it is said: "There is to be observed a difference between the times of war, or public in- surrection or rebellion, when a person is under so great a power that he cannot resist or avoid, the law in some cases allows an impunity for parties compelled, or drawn by fear of death, to do some acts in them- selves capital, which admit no excuse in time of peace. . . . Now as to times of peace, if a man be menaced with death unless he will com- mit an act of treason, murder, or robbery, the fear of death doth not )16 ARP V. STATE. [CHAl*. V. i excuse him if lie commit the act; for the law hath provided a sufficient remedy against such fears by applying himself to the court and officers of justice for a writ or precept dc seciritate jxicis. Again, if a man be ['{ desperately assaulted, and in peril of death, and cannot otherwise es- ca|)e unless to satisf}' his assailant's fury he will kill an innocent per- son, the present fear of actual force will not acquit him of the crime and punishment of murder, if he commit the act, for he ought rather ti) die himself than kill an innocent ; but if he cannot otherwise save his own life, the law permits him in his own defence to kill his assailant." Blackstone, vol. 4, § 30, declares the law to be, " Though a man be violent!}' assaulted, and has not other possible means of escaping death but by killing an innocent person, this fear and force shall not acquit him of murder ; for he ought rather to die himself than escape by the murder of an innocent." In Stephen's Commentaries, vol. 4, book 6, c. 2, pp. 83-84, the same rule is declared to be the law. In least's Crown Law, the same general principles are declared as to cases of treason and rebellion, etc. But on page 294, after referring to the case of two persons being shipwrecked and getting on the same plank, proceeds as follows : " Yet, according to Lord Hale, a man can- not even excuse the killing of another who is innocent, under a threat, however urgent, of losing his own life unless he comply. But if the commission of treason may be extenuated by the fear of present death, and while the part}^ is under actual compulsion, there seems no reason wh\' this offence may not be mitigated upon the like consideration of human infirmity. But if the party might, as Lord Hale in one place supposes, have recourse to the law for his protection against such threats, it will certainly be no excuse for committing murder." In Russell on Crimes, vol. 1, § 699, it is stated as follows: "The person committing the crime must be a free agent, and not subject to actual force at the time the act is done ; thus, if A by force take the arm of B, in which is a weapon, and therewith kill C, A is guilty of murder, but not B. But if it be onl}' a moral force put upon B, as by threatening him with duress or imprisonment, or even by an assault to the peril of his life, in order to compel him to kill C, it is no legal excuse." In the case of Regina v. Tyler, reported in 8 Car. & Pa^-ne, 618, Lord Denman, C. J., declares the law as follows: "With regard to the argument you have heard, that these prisoners were induced to join Thom, and to continue with him from a fear of personal violence to themselves, I am bound to tell 3'ou that where parties for such reason are induced to join a mischievous man, it is not their fear of violence to themselves which can excuse their conduct to others. . . . The law is that no man, from a fear of consequences to himself, has a right to make himself a party to committing mischief on mankind." In the case of Respublica v. McCarty, 2 Dallas, 86, when the de- SECT. III.] ARP V. STATE. . 517 fendant was on trial for high treason, the court uses this language : " It must be remembered that, in the eye of tlie law, nothing will ex- cuse the act of joining the enemy but the fear of immediate death ; not the fear of ^y inferior personal injury, nor the apprehension of any outrage on property." The same rule in regard to persons charged with treason as that stated in Hale's Pleas of tlie Crown is declared in Hawkins, vol. 1, c. 17, § 28 and note, and both authors hold that " the question of the practicability of escape is to be considered, and that if the person thus acting under compulsion continued in the treasonable acts longer than was necessary, the defence ^ j)ro timore mortis' will not be available." This principle finds further support in the case of U. S. v. Greiner, tried for treason, reported in 4 Phil. 396, in the following language: "The only force which excuses on the grounds of compulsion is force upon the person and present fear of death, wliich force and fear must continue during all the time of military service, and that it is incum- bent in such a case upon him who makes force his defence to show an actual force, and that he quitted the service as soon as lie could." Wharton's Criminal Law, vol. 1, § 94, under the head of Persons under Compulsion, says : " Compulsion may be viewed in two aspects : 1. When tiie immediate agent is physically forced to do the injury, as when his hand is seized by a person of superior strength, and is used against his will to strike a blow, in which case no guilt attaclies to the person so coerced. 2. When the force applied is that of authority or fear. Thus, when a person not intending wrong is swept along by a party of persons whom he cannot resist, he is not responsible, if he is compelled to do wrong by threats on the part of the offenders instantly to kill liira, or to do him grievous bodily harm if he refuses ; but threats of future injury, or the command of any one not the luisband of the offender, do not excuse any offence. Thus, it is a defence to an indict- ment for treason that the defendant was acting in obedience to a de facto government, or to such concurring and overbearing sense of the communit}' in which he resided as to imperil his life in case of dissent." In section 1803 a, of the same author (Wharton), it is said : " No mat- ter what may be the shape compulsion takes, if it affects the person and he yielded to it honafide^ it is a legitimate defence." We have examined the cases cited by Mr. Wharton to sustain the text, and find them to be cases of treason, or fear from the party slain, and in none of them is tliere a rule different from that declared in the common law authorities cited by us. Bisliop on Criminal Law, §§ 346, 347, 348, treats of the rules of law applicable to acts done under necessity and compulsion. It is here declared: "That always an act done from compulsion and necessity is not a crime. To this proposition the law knows no exception. Wliat- ever it is necessary- for a man to do to save liis life, is, in general, to be considered as compelled." 518 . ARP V. STATE. [chap. V. The cases cited to these propositions show the facts to be different from those under consideration. The case referred in 1 Plow. 19, was where the defendant had thrown overboard a part of his cargo of green wood during a severe tempest to save his vessel and the remainder of his cargo. The otlier, 5 Q. B. 279, was for the failure to keep up a highway-, which the encroachments of the sea had made impossible ; and that of Tate v. The State, 5 Black. 73, was also that of a super- visor of a public highwa}', and the others were cases of treason, to which reference has been made. In section 348, the author cites the rule laid down by Russell, and also of Lord Denman, and in 1 East P. C, to which reference has already been made. In section 845, the same author uses the following language: "The cases in which a man is clearly justified in taking another's life to save his own are when the other has voluntarily placed himself in the wrong. And probably^ as we have seen, it is never the right of one to deprive an innocent third person of life for the preservation of his own. Tliere are, it looulcl seem, circum- stances in which one is bound even to die for another." Italics are ours, — emi)hasized to call attention to the fact that the author is care- ful to content himself more with a reference to the authorities which declare these principles of law than an adoption of them as his own. The authorities seem to be conclusive that, at common law, no man can excuse liiinself, under the plea of necessity or compulsion, for tak- ing the life of an innocent person. Our statute has divided murder into two degrees, and affixed the punishment for each degree, but in no respect has added to or taken away an}- of the ingredients of murder as known at common law. Mitchell ('. State, 60 Ala. 26 ; Fields v. State, 52 Ala. 352. That persons have exposed themselves to imminent peril and death for their fellow man, and that there are instances wliere innocent per- sons have submitted to murderous assaults and death rather than take life is well established, but such self-sacrifices emanated from other mo- tives than the fear of legal punisliraent. That the fear of punisliment b}- imprisonment or death at some future da}* b}' due process of law can operate with greater force to restrain or deter from its violation, than the fear of immediate death unlawfull}- inflicted, is hardlj' recon- cilable witli our knowledge and experience with tliat class of mankind who are controlled by no other higher principle tlian fear of the law. Be this as it may, there are other principles of law undoubtedl}' ap[)li- cable to the facts of this case, and vvhicli we think cannot be ignored. The evidence of the defendant himself shows that lie went to Burk- halter's house about nine o'clock of the niglit of the killing, and there met Burklialter and Leith, and tliat it was there, and at that time, they told him he must kill Pogue. The evidence is not clear as to how far it was from Burkhalter's to Pogue's dwelling, where the crime was per- petrated ; but it was sufficient to show that there was some considerable distance between the places, and he testifies as they went to Pogue's, they went by the mill and got the axe with which he killed him. Under SKCT. lll-j UNITED STATES V. JONES. 519 every principle of law, it was the duty of the defendant to have escaped from Burkhalter and Leith, after being informed of their intention to compel him to take the life of Pogue, as much so as it is the duty of one who had been compelled to take up arms against his own govern- ment, if he can do so with reasonable safety to himself ; or of one as- sailed, to retreat before taking the life of his assailant. Although it may have been true that at the time he struck the fatal blow he had reason to believe he would be killed by Burkhalter and Leith un- less he killed Pogue, yet, if he had the opportunity, if it was practi- cable, after being informed at Burkhalter's house of their intention, he could have made his escape from them witli reasonable safetv, and he failed to do so, but remained with them until the time of the killing, the immediate necessity or compulsion under wliich he acted at that time would be no excuse to liim. As to whetlier escape was practi- cable to defendant, as we have stated, was a question of fact for the jury. The charge, numbered 1 and refused by the court, ignored this principle of law and phase of evidence, and demanded an acquittal of defendant if at the time of the killing the compulsion and coercion operated upon the defendant, and forced him to the commission of the act, notwithstanding he might have avoided the necessity b}- escape before that time. We do not hesitate to sa}' he would have been justi- fiable in taking the life of Burkhalter and Leith, if there had been no other way open to enable him to avoid the necessity of taking the life of an innocent man. The charge requested was erroneous and mis- leading, in the respect that it ignored the law and evidence in these respects. Affirmed. UNITED STATES v. JONES. U. S. Circuit Court, Dist. Pennsylvania. 1813. [Reported 3 Washingtoji, C. C. 209] The prisoner was indicted for feloniously and piratically entering a certain Portuguese brig (b}' name), and assaulting the captain, &c. It appeared in evidence, on the part of the prosecution, that the defendant was the first lieutenant of a privateer schooner, called the " Revenge," William Butler master, duly commissioned by the President of the United States, on the 12th of October, 1812. The points of law raised by the counsel for the prisoner were five. The prisoner was an inferior officer, and was bound to obey the orders of Captain Butler ; of course, he cannot be punished for having done so.^ 1 Ouly so much of the case as involves this point is given. 520 PEOPLE V. DETKOIT WHITE LEAD WORKS. [CHAl'. V. Washington, Justice, charged the jury. The only remaining ques- tion of law whicli has been raised in this cause is, tliat the prisoner ought to be presumed to have acted under the orders of liis superior officer, which it was iiis duty to obey. This doctrine, equally alarming and unfounded, underwent an examination and was decided by this court in the case of General Bright. It is i-epugnaut to reason, and to the positive law of the land. No military or civil otflcer can com- mand an inferior to violate the laws of his country ; nor will such, a command excuse, much less justify, the act. Can it be for a moment pretended that the general of an army, or the commander of a shi|) of war, can order one of his men to commit murder or felony? Certainly not. In relation to the navy, let it be remarked, that the fourteenth section of the law for the better government of that part of the public force, which enjoins on inferior officers or privates the duty of obe- dience to their superior, cautiously speaks of the Imoful orders of that superior. Disobedience of an unlawful order must not, of course, be punish- able ; and a court-martial would, in such a case, be bound to acquit the person tried upon a charge of disobedience. We do not mean to go further than to say, that the participation .of the inferior officer in an act which he knows, or ought to know, to be illegal, will not be excused by the order of his suDerior.^ PEOPLE i\ DETROIT WHITE LEAD WORKS. SUPKKME COUUT OF ISIlCHIGAN. 1890. [ReportPil 82 Mich. 47 L] Grant, J.^ This case is brought to this court b}' writ of certiorari from the Recorder's Court of the city of Deti'oit. The defendants were convicted of unlawfully and wilfully creating and maintaining a nuisance, consisting of the creation and emission of unwholesome, oflfensive, and nauseating odors, smells, vapors, and smoke, to the great damage and common nuisance of all people living in the neighborhood thereof, and of all pebple passing and repassing on the streets and alleys adjacent thereto, contrary to an ordinance of tlie city in such case made and provided, lieing section 5, chap, f)'). Rev. Ord. 1884. The ordinance m question is set forth in the return of the judge to the writ. "^ The defendant the Detroit White T^oad Works is a corporation organ- ized under the laws of the state. Defendant Ilinchman is president, defendant Dean is vice-president, and defendant Rogers is treasurer and manager. The defendants Ilinchman, Dean> and Rogers were 1 Ace. Rex V. Thomas, 1 Russ. Crimes, 731; U. S. v. Carr, 1 Woods, 560; Com. v. Blodgett, 1 2 Met. 56. — Ed. - Part of the opinion is omitted. SECT. III.] PEOPLE V. DETROIT WHITE LEAD WORKS. 521 fined $1 each, and the defendant the Detroit White Lead Works $10 and costs. No other penalty was imposed. The facts found and returned by the Recorder's Court clearly estab- lish a nuisance, according to all the autliorities. These facts so found are conclusive in tliis court, and we can onl}' apply the law to the facts. Counsel for defendants cannot, therefore, seriously contend that we can enter into a discussion and determination of that question, especially as the evidence is not before us. Defendants are not aided by the fact found by the court that, during the time covered by the complaint, the business, in all respects, had been carried on in a careful and prudent manner, and nothing had been done by those managing it that was not a reasonable and necessary incident of the business ; nor by the further fact that, when the defend- ant company commenced its business, the lands in tlie vicinit}' of its works were open common. It is undoubtedly true that the defendants, or their predecessors, established their works at a point remote from habitation, possibly in recognition of the fact that such a business was at least not pleasant, if not injurious, to the health and enjoyment of those living near it. The city of Detroit has extended to the defend- ants' works, and the owners of adjoining lands have erected dwellings thereon. This they^ of course, had the legal right to do. The defend- ants cannot be protected in the enjoyment of their property, and the carrying on of their business, if it becomes a nuisance to people living upon the adjoining properties, and to those doing legitimate business with them. Whenever such a business becomes a nuisance, it must give way to the rights of the puljlic, and the owners thereof must either devise some means to avoid the nuisance, or must renxjve or cease the business. It ma^- not be continued to the injury of the health of those living in its vicinity. This rule is fi^unded 1)oth upon reason and authority. Nor is it of any consequence that the business is useful or necessaiy, or that it contributes to the wealth and prospei'it}' of tlie community. Wood, Nuis., § 19; Queen v. Train, 2 Best & 8. 640; Works V. Railroad Co., 5 McLean, 425; Respublica i\ Caldwell, 1 Dall. 150; Ross ('. Butler, 19 N. J. p:q. 296; Robinson v. Baugh, 31 Mich. 290. It is true that, in places of population and business, not everything that causes discomfort, inconvenience, and annoyance, or which, per- haps, may lessen the value of surrounding pro[)erty, will be eoudemned and abated as a nuisance. It is often ditiicult to determine the bound- ary line in man}' such cases. The carrying on of many legitimate businesses is often productive of more or less annoyance, discomfort, and inconvenience, and may injure surrounding propert}' for certain purposes, and still constitute no invasion of the rights of the people living in the vicinity. Such a case was Gilbert v. Showerman. 23 Mich. 448. A case similar in its facts was before this court in Robinson i\ Baugh, 31 Mich. 290, which was distinguished by the court from (Tilbert v. Showerman. In the former case the business was legitimate and neces- 522 COMMONWEALTH V. MILLER, [CIIAP. V. sary. The suit was brought in equity to enjoin the business at the phice where carried on. The tacts were tliat smoke and soot {"rom de- fendant s works were often borne by the wind in large amounts to the premises of the complainants, and sometimes entered their dwellings by the chimneys, and tlirough cracks by the doors and windows, in such measure as to be extremel\- otfensive and harmful, and the noise so great as to be disagreeable, and positively hurtful, the jar annoying and disturbing the sick, and in some cases causing substantial damage to dwellings. The court laid down the rule (page 296) as follows : — " However lawful the business may be in itself, and however suitable in the abstract the location may be, they cannot avail to authorize the conductor of the business to coiituuie it in a way which directly, palpably, and substantially damages the pro[)erty of others, unless, indeed, the operator is able to plant himself on some peculiar ground of grant, covenant, license, or privilege which ought to prevail against complain- ants, or on some prescriptive right, and whieh in this country can rarely happen." No case has been cited, and we think none can be found, sustain- ing the continuance of a business in the midst of a populous com- munity, which constantly produces odors, smoke, and soot of such a noxious character, and to such an extent, that they produce headache, nausea, vomiting, and other pains and aches injurious to health, and taint the food of the inhabitants. All tlie defendants were proper!}' convicted. The officers of the com- pany are jointly responsible for the business. It is not necessary to conviction that they should have been actually' engaged in work upon the premises. The work is carried on by employees. The directors and officers are persons primarily responsilile, and therefore the proper ones to be prosecuted. A fine can be collected against the defendant company, and therefore it is subject to prosecution. COMMONWEALTH lk MILLER. Supremp: Coijkt of Pennsylvania, 1890. [Reported 139 Fa. 77.] Williams, J.^ The defendants own and operate a refinery where crude petroleum and its products are prepared for market. There are four acres within the enclosure fronting on the Ohio river. The Pitts- burgh & Western Railroad passes in front of it, along the river's edge. The Cleveland & IMttsburgh Railroad runs upon the street directly in the rear. The city of Allegheny, like its sister city Pittsburgh, owes its growth and prosperity to the extent of its manufacturing interests, 1 Part of the opinion only is given. SECT. III.] COMMONWEALTH V. MILLER. 523 and the river front is almost wholh- given over to these great industries. The indictment charges that the defendants' refinerv is a public and common nuisance, liecanse of the emission therefrom of certain noxious and offensive smells and vapors, and because the oils and gases stored and used therein are inflammable, explosive, and dangerous. The jury, under the instructions of the court, found the defendants guilty, and the sentence which has been pronounced requires the abatement or destruction of a plant in which some three hundred thousand dollars are said to be invested, and which gives employment to seventy-five men. The assignments of error are quite numerous, but the important questions raised are few. The first four assignments, the sixth, ninth, tenth, and sixteenth, may be considered together, as they relate more or less directly to the same subject. The le&rned judge had his attention directed by the written points to the definition of a public nuisance, and to the circum- stances under which tlie defendants' refinery had been established and maintained for many years ; and he instructed the jury that the charac- ter of the location where the refinery was established, tlie nature and importance of the business, the length of time it had been in operation, the capital invested, and the influence of the business upon the growth and prosperity of the communitj', were no defence to an indictment for nuisance. Among other expressions used by him are the following: '•It is no defence to an indictment for a common nuisance that the business complained of has been in operation many years." " I do not think the size of an establishment makes any difference." And attain : " Neither is it a defence in anv measure that the business is a useful one," etc. If it had been an admitted or an established fact that the business of the defendants was a common nuisance, and they had attempted to justify its maintenance, these instructions would have been appropriate ; but, the question before the juiy was whether the business was a nuisance. The decision of that question depended upon a knowledge of all the circumstances peculiar to the business, the place, its surroundings, and the employments of the persons in the vicinity. While no one of these, nor all together, would justify' the maintenance of a nuisance, the}' might be sufficient, and the}^ certainly were compe- tent evidence from which the jury might determine whether the defend-. ants' refinery was a common nuisance at the place where it was located, and this was tbe question to be determined by the trial. They might make, therefore, or contribute to make, a defence to the indictment try- ing. This distinction between an effort to justify an admitted or estab- lished nuisance, and a denial that the business complained of amounts to a nuisance, was evidently in the mind of the learned judge, but, in the haste that attends jury trials, he failed to place it clearl}' before the jury. He did say that the facts referred to had " weight, and are to be considered in determining the degree of the injury produced, and whether the effects arc so annoying, so productive of inconvenience 524 COMMONWEALTH W. MILLER. [CHAP. V. and discomfort, tliat it can be said to be really so prejudicial to the public as to be a nuisance," but, following an explicit statemeni that these same facts were " no defence to an indictment for erecting and maintaining a nuisance," such as tliey were then trying, the jury was left without an adequate presentation of the defence. Tliat such facts are proper for consideration and may make a defence, lias been long and well settled : Wood on Nuis., § 430 The same rule was ai)plied in this state in Huckenstine's App., 70. Pa. 102; and in Commonwealth v. Reed, 34 Pa. 275, The character of the business complained of must be determined in view of its own peculiar location and surroundings, and not by the application of any abstract prin- ciple. Wood r. Sutcliffe, IG Jur. 75. In the case last cited. Lord Cranworth referred to a case at nisi prius. in which he had instructed the jury to consider, not only whether the quantity of smoke complained of would amount to a nuisance, considered abstractly, but " whether it is a nuisance to a person living in Shields," which was the name of the town in which the business was conducted. It was in this respect that the instructions complained of in the first, second, and third specifica- tions were inadequate. Tliey gave the genei-al rule without the qualifi- cations which the situation of the defendants' refinery entitled him to. The right to pure air is, in one sense, an absolute one, for all persons have the right to life and health, and such a contamination of the air as is injurious to health cannot be justified ; but, in another, sense, it is relative, and depends upon one's surroundings. Peo[)le who live in great cities that are sustained by manufacturing enterprises must neces- sarilj- be subject to many annoyances and positive discomforts, by reason of noise, dust, smoke, and odors, more or less disagreeable, produced by and resulting from the business that supports the city. The}- can only be relieved from them by going into the open country. The defendants had a right to have the character of their business determined m the light of all the surrounding circumstances, including the character of Alleghen}- as a manufacturing city, and the manner of the use of the river front for manufacturing purposes. If, looked at in this way, it is a common nuisance, it should be removed ; if not, it may be conducted without subjecting the proprietors to the pecuniar}^ loss which its removal would involve. SECT. III.] EEGINA V. EANDALL. 525 REGIlNA V. RANDALL. Winchester Assizes. 1842. [Reported Car. Sp M. 496.] Indictment for i nuisance in building and continuing a wharf in the navigable river Itchen. Plea, not guiltj-. For the prosecution, it was proved that the wharf was built between higii and low water-mark, and projected over a portion of the river on which boats formerlj" passed. For the defence, it was shown that, before the erection of the wharf, there was no means of unloading trading vessels in the river, except by lightening them in the middle of the stream, and then getting them at high water on to the mud between high and low water-mark. Since the erection of the wharf in question such vessels had been unloaded at it, and thus the centre of the river was kept clear, and the general navi- gation improved. It was contended for the prosecution that, in point of law, the ver- dict must be for the crown, if the jury should find that the wharf covered an}- part of the soil of the river over which boats formerly navigated. For the defendant, it was urged that, although the wharf covered a portion of the river over which boats formerly went, yet, that it was for the jury to sa}- whether in fact any sensible nuisance or im- pediment to the navigation of the river by the public had been occa- sioned by the act of the defendant ; and that, in coming to their conclusion, the jury were justified in taking into consideration the effect produced by the building and use of the wharf in keeping clear the channel of the river. The cases of Rex v. Russell, 6 B. & C. 566 ; Rex V. Ward, 4 A. & E. 384; and Rex v. Tindall, 6 A. & E. 143, were cited. WiGHTMAN, J. (in summing up), left it to the jury to say whether the wharf itself occasioned any hinderance or impediment whatever to the navigation of the river by any description of vessels or boats ; and told them that the}' were not to take into their consideration the cir- cumstance that a benefit had resulted to the general navigation of the river by the mid-channel being kept clear, as proved by the defendant's witnesses. The jury, however, could not agree upon their verdict ; and, after being locked up throughout the night, were discharged. 526 NOTE. [chap. v. REX V. ROBERT OF HERTHALE. Shropsuire Eyre. 1203. [1 Selden Soc. 31.] Robert of Herthale, arrested for having in self-defence slain Roger, Swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he ma}- be in custody as before, for the King must be consulted about this matter. NOTE. Northampton Iter. 1328. [Reported Fitz. Abr. Coron. 361.] Note that when a man is acquitted before the justices errant for death of a man so// defendendo, the process is such that he shall have the writ of the Chief Justice, within which writ shall be contained all the record of his acquittal, to the Chancellor, who shall make him his writ of pardon without speaking to the King by course of law. Such a man is bailable after the acquittal, etc. NOTE. 1346. [Reported Y. B. 21 Edw. 3, 17.] Note that a man was found guilty that he had killed another se defendendo ; and yaX. his chattels shall be forfeited though his life shall be saved. And the cause was because at Common Law a man was SECT. III.j • NOTE. 527 hanged in such a case as above, just as if he had done it felonioush*; and though the king now b}' the statute ^ has released his life, his chattels remain as at common law. MEMORANDUM. 1347. [Reported Fitz. Ahr. Coron. 261.] v Where a man justifies the death of another, as by warrant to arrest him, and he will not obey him, or that he comes to his house to commit burglary and the like, if the matter be so found, the justices let him go quit without the King's pardon ; it is otherwise where a man kills another by misfortune, etc. NOTE. Newgate. 1368. [Reported 43 Lib. Assis. 31.] Note that at the delivery made at Newgate before Knivet and LoDEL, JJ., it was found by the verdict that a chaplain killed a man se defendendo. And the Judges asked how ; and they said that the de- ceased pursued him with a stick and hit him ; but the other struck back and killed him. And they said that the defendant might have fled from the assailant if he would. And therefore the Judges held him a felon, and said that he was bound to flee as far as he could to save his life. And the chaplain was adjudged to the Ordinary, etc. ^ Statute of Gloucester, 6 Edw. 1, ch. 9. The King commandeth that no writ sliall be granted out of the Chancery for the death of a man to enquire whether a man did kill another by misfortune, or in his own defence, or in otlier manner without felony ; but he shall be put in prison until the coming of the justices in eyre or justices assigned to the gaol-delivery, and shall put himself upon the country before them for good and evil. In case it be found by the country that he did it in his defence, or by misfortune, then by the report of the jus- tices to the King, the King shall take him to his grace, if it please him. 528 MEMORANDUM. [CHAP. V. MEMORANDUM. Chancery. 1488. [Reported Y. B. 4 Hen. 7, 2.] In the chanceiy it was moved that one was indicted because he killed a man se ipsum defendendo, etc. And the Chancellor said that the indictment should be removed into the King's Bench, and that he would grant a pardon of common grace unto the party according to their form. And it was suggested b}- the Sergeants at the bar that there was no need of having any pardon in this case ; for here the Justices would not ari'aign him, but dismiss him, &c. ; but if the indictment were for felony and the part>- put himself upon the inquest for good and ill according to the statute of Gloc. c. 9, then if the inquest found that he did it se defendendo, the Justices would adjudge him to prison until he had a pardon; but here he should be dismissed, and not lose his goods. Fairfax, J., who was in the Chancer}-, went to his companions and returned and said that their custom was to take inquest and inquire whe4;her he did it se defendendo or not, and if so found, lie lost his goods, etc. ; and so in either wa}' he should have a pardon b}' his opinion. And so it seemed to the Chancellor that a pardon should be granted. Note the opinion of the Justices of the Bench against the Sergeant's. Foster, C. L. 273. Self-defence naturally falleth under the head of homicide founded in necessit}', and may be considered in two different views. It is either that sort of homicide se et sua defendendo^ which is perfect!}' innocent and justifiable, or that which is in some measure blameable and barely excusable. The want of attending to this dis- tinction hath, I believe, thrown some darkness and confusion upon this part of the law. The writers on the Crown Law, who. I think, have not treated the subject of self-defence with due precision, do not in terms make the distinction I am aiming at, vet all agree that there are cases in which a man may, without retreating, oppose force to force, even to the death. This I call justifiable self-defence, they justifiable homicide. They likewise agree that there are cases in which the defendant can- SECT. III.] ' MEMORANDUM. 529 not avail himself of the plea of self-defence without showing that he retreated as far as he could with safet}", and then, merely for the pres- ervation of liis own life, killed the assailant. This I call self-defence culpable, but through the benignit}- of the law excusable. In the case of justifiable self-defence the injured party may repel force by force in defence of his pei'son, habitation, or iM'opert}', against one who manifestly intendeth and endea^■oreth by violence or surprise to commit a known felon}' upon either. In these cases he is not obliged to retreat, but ma}' pursue his adversary till he findeth himself out of danger, and if in a conflict between them he happeneth to kill, such killing is justifiable. The right of self-defence in these cases is founded in the law of nature, and is not, nor can be, superseded by an}' law of society. For before civil societies were formed (one may conceive of such a state of things, though it is difficult to fix the period when civil societies were formed), I sa}' before societies were formed for mutual defence and preservation, the right of self-defence resided in individuals ; it could not reside else- where ; and since in cases of necessity, individuals incorporated into societ}', cannot resort for protection to the law of the society, that law with great propriety and strict justice considereth them, as still, in that instance, under the protection of the law of nature. I will, by way of illustration, state a few cases, which, I conceive, are reducible to this head of justifiable self-defence. Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force by force ; and even his servant then attendant on him, or any other person present may interpose for preventing mischief; and if death ensueth, the party so interposing will be justified. In this case nature and social duty co-operate. A woman in defence of her chastity may lawfully kill a person attempt- ing to commit a rape upon her. The injury intended can never be repaired or foi'gotten ; and nature, to render the sex amiable, hath implanted in the female heart a quick sense of honor, the pride of virtue, which kin- dleth and entlameth at every such instance of brutal lust. Here the law of self-defence plainl}' coincideth with the dictates of nature. An attempt is made to commit arson or burglar}' in the habitation ; the owner, or any part of his family, or even a lodger with him may lawfully kill the assailants for preventing the mischief intended. Here likewise nature and social duty co-operate. I will now proceed to that sort of self-defence which is culpable and through the benignity of the law excusable. And this species of self- defence, I choose, upon the authority of the statute of Hen. VIII., to distinguish from the other by the name of homicide se defendendo ni)on chance-medley. The term " chance-medley " hath been very improperly applied to the case of accidental death, and in vulgar speech we gener- ally affix that single idea to it. But the ancient legal notion of homicide by chance-medley was when death ensued from a combat between the 530 MEMORANDUM. [CHAP. V. parties upon a sudden quarrel. How, upon the special cireuinstances of tlie case, the species of homicide se defe7idendo which I am now upon is distinguishable from that species of felonious homicide which we call manslaughter will be presentl}' considered. The difference between justifiable and excusable self-defence appear- eth to me to be plainly, supposed and pointed out bj^ the statute I have just mentioned ; for, after reciting that it had been doubted whether a person killing another attempting to rob or murder him under the cir- cumstances there mentioned should forfeit goods and chattels, ''As," proceedeth the statute, "any other person should do that b}' chance- medley- should happen to kill or slay any other person in his or their defence," it enacteth that in the cases first mentioned the party killing shall forfeit nothing, but shall be discharged in like nianner as if he were acquitted of the death. He who, in the case of a mutual conflict, would excuse himself upon the foot of self-defence, must show that before a mortal stroke given he had declined any farther combat and retreated as far as he could with safet}' ; and also that he killed his adversary through mere neces- sity, and to avoid immediate death. If he faileth in either of these circumstances he will incur the penalties of manslaughter. The authorities I shall cite will serve to explain these principles, and in some measure fix the boundaries between the cases of manslaughter and excusable self-defence. A. being assaulted b}- B. returneth the blow, and a fight ensueth. A. before a mortal wound given, declineth any farther conflict, and retreat- eth as far as he can with safety, and then, in his own defence, killeth B. ; this is excusable' self-defence ; though, saith Stanford, A. had given several blows not mortal before his retreat. But if the mortal stroke had been first given, it would have been manslaughter. The cases here put suppose that the first assault was made upon the pai'ty who killed in his own defence. But as in the case of manslaughter upon sudden provocations, where the parties fight on equal terms, all malice apart, it mattereth not who gave the first blow ; so, in this case of excusable self-defence, I think the first assault in a sudden affray, all malice apart, will make no difference, if either party quitteth the combat and retreateth before a mortal wound be given. But if the first assault be upon malice, which must be collected from circumstances, and the assailant, to give himself some color for putting in execution the wicked purposes of his heart, retreateth, and then turneth and kill- eth, this will be murder. If he had killed without retreating it would undoubtedlj' have been so ; and the craft of flying rather aggravateth than excuseth, as it is a fresh indication of the malitia alread}' mentioned, the heart deliberately' bent upon mischief. The other circumstance necessary to be proved in a plea of self- defence is that the fact was done from mere necessity, and to avoid immediate death. To this purpose I will cite a case adjudged upon SECT. III.] KEGINA V. HEWLETT. 531 great deliberation. It was the case of one Nailor, which came on at O. B. in Apr. 1704, before Holt, Tracy, and Bury. The prisoner was indicted for the murder of his brother, and the case upon evidence appeared to be, that tlie prisoner on the night the fact was committed came home drunk. His father ordered liim to go to bed, which he refused to do ; whereupon a scuffle happened betwixt the father and son. The deceased, who was then in bed, hearing the dis- turbance got up, and fell upon the prisoner, threw him down, and beat him upon the ground ; and there kept him down, so that he could not escape nor avoid the blows ; and as they were so striving together the prisoner gave the deceased a wound with a penknife ; of which wound he died. The judges present doubted, whether this was manslaughter or se defendendo^ and a special verdict was found to the effect before set forth. After Michaelmas term, at a conference of all the judges of England, it was unanimously holden to be manslaughter ; for tliere did not appear to be any inevitable necessity so as to excuse the killing in this manner. ANONYMOUS. [Reported Kelyng, 58.] If a. hath malice against B. and meeteth him and striketh him, and then B. draweth at A., and A. flyeth back until he come to a wall, and then kills B., this is murder, notwithstanding his flying to the wall ; for the craft of flying shall not excuse the malice which he had, nor shall any such device to wreak his malice on another, and think to be excused by law, avail him anything, but in such case the malice is enquirable, and if that be found by the jury, then his flight is so far from excusing the crime, that it aggravates it. REGINA V. HEWLETT. Bristol Assizes. 1858. [Reported 1 Foster and Finlason, 9L] Wounding with intent. The prisoner was indicted for wounding with intent to do grievous bodily harm to the prosecutor. It appeared that the prisoner, with a knife, struck at one Withy. The prosecutor interfered and cauglit the blow intended for Withy on his arm. Crowder, J. This will not sustain the charge of wounding with 532 ROWE V. UNITED STATES. [CHAP, V. intent to do grievous bodily liarm to the prosecutor, but he may be convicted of unlawfully wounding. It appeared that the prosecutor, Withy and two women, who had been drinking together, met the prisoner at midnight on the highway. Some words passed between them, when Withy struck the prisoner. The prisoner then made the blow, which was the subject of the charge. It was contended for him that, under the circumstances, he was justi- fied m doing so. Crowder, J. (to the jury). Unless the prisoner apprehended rob- bery or some similar offence, or danger to life or serious bodily danger (not simply being knocked down), he would not be justified in using the knife in self-defence. 2iof, guilty. ROWE V. UNITED STATES. Supreme Court of the United States, 1896. [Reported 164 U. S. 546.] Harlan, J. W' e think that these portions of the charge (to which the accused duly excepted) were well calculated to mislead the jury. They expressed an erroneous \aew of the law of self-defense. The duty of the jury was to consider the case in the light of all the facts. The evidence on behalf of the government tended to show that the accused sought a difficulty with someone; that on behalf of the accused, would not justify any such conclusion, but rather that he had the reputation of being a peaceable and law-abiding man. But the evidence on both sides was to the effect that the deceased used language of an offensive character for the purpose of provoking a difficulty with the accused, or of subjecting him to the indignity of a personal insult. The offen- sive words did not, it is true, legally justify the accused in what he did — the evadence of the government tending to show that "he kicked at deceased, hitting him lightly on the lower part of the leg"; that on the part of the accused tending to show that he "kicked at" the de- ceased and "probably struck him lightly." According to the evidence of the defense, the accused then " stepped back, and leaned up against the counter," indicating thereby, it may be, that he neither desired nor intended to pursue the matter further. If the jury believed the evidence on behalf of the defense, they might reasonably have inferred from the actions of the accused that he did not intend to make a \aolent or dan- gerous personal assault upon the deceased, but only, by kicking at him or kicking him lightly, to express his indignation at the offensive Ian- SECT. III.] KOWE V. UMTED STATES. 533 guage of the deceased. It should have been submitted to the jury whether the act of the accused in stepping back and leaning against the counter, not in an attitude for personal conflict, was intended to be, and should have been reasonably interpreted as being, a withdrawal by the accused in good faith from further controversy with the deceased. On the contrary, the court, in effect, said that if, because of words used by the deceased, the accused kicked at or kicked the deceased, how- ever lightly, and no matter how offensive those words were, he put himself in a position to make the killing manslaughter, even if the taking of life became, by reason of the suddenness, rapidity, and fierce- ness of the assault of the deceased, absolutely necessary to save his own. By numerous quotations from adjudged cases, the court, by every form of expression, pressed upon the jury the proposition that " a per- son who has slain another cannot urge in justification of the killing a necessity produced by his own unlawful and wrongful acts." But that abstract principle has no application to this case, if it be true — as the evidence on behalf of the defense tended to show — that the first real provocation came from the deceased when he used towards the accused language of an offensive character, and that the accused immediately after kicking at or lightly kicking the deceased, signified by his conduct that he no longer desired controversy with his adversary; whereupon the deceased, despite the efforts of the accused to retire from further contest, sprang at the latter, with knife in hand, for the purpose of tak- ing life, and would most probably have accomplished that object, if the accused had not fired at the moment he did. Under such circum- stances, did the law require that the accused should stand still, and permit himself to be cut to pieces, under the penalty that if he met the unlawful attack upon him and saved his own life, by taking that of his assailant, he would be guilty of manslaughter? We think not. If a person, under the provocation of ofl^ensive language, assaults the speaker personally, but in such a way as to show that there is no in- tention to do him serious bodilv harm, and then retires under such cir- cumstances as show that he does not intend to do anything more, but in good faith withdraws from further contest, his right of self-defense is restored when the person assaulted, in \nolation of law, pursues him with a deadly weapon and seeks to take his life or do him great bodily harm. In Parker v. The State, 88 Alabama, 4, 7, the court, after advert- ing to the general rule that the aggressor cannot be heard to urge in his justification a necessity for the killing which was produced by his own wrongful act, said: "This rule, however, is not of absolute and univer- sal application. x\n exception to it exists in cases where, although the defendant originally provoked the conflict, he withdraws from it in good faith, and clearly announces his desire for peace. If he be pursued after this, his right of self-defense, though once lost, re\'ives. 'Of course,' says Mr. Wharton, in referring to this modification of the rule, 'there must be a real and horin fide surrender and withdrawal on his 534 ROWE V. UNITED STATES. [CIIAP V. part; for, if there be not, then he will continue to be regarded as the aggressor.' 1 Wliarton's Cr. Law (9th ed.), § 486. The meaning of the principle is that the law will always leave the original aggressor an o])portunity to repent before he takes the life of his adversary. Bishop's ( T. Law (7th ed.), § 87L" Recognizing this exception to be a just one, the court properly said, in addition : " Due caution must be observed by courts and juries in its application, as it involves a principle which is very liable to abuse. The question of the good or bad faith of the retreating party is of the utmost importance, and should generally be submitted to the jury in connection with the fact of retreat itself, especially where there is any room for conflicting inferences on this point from the evidence." Both parties to a mutual combat are wrong- doers, and the law of self-defense cannot be invoked by either, so long as he continues in the combat. But, as said by the Supreme Court of Iowa in State r. Dillon, 74 Iowa, 653, 659, if one " actually and in good faith withdraws from the combat, he ceases to be a wrongdoer; and if his adversary have reasonable ground for holding that he has so with- drawn, it is sufficient, even though the fact is not clearly e^'inced." See also 1 Bishop's New Crim. Law, § 702; People v. Robertson, 67 California, 646, 650; Stoffer's Case, 15 Ohio St., 47. In Wharton on Homicide, § 483, the author says that "though the defendant may have thus provoked the conflict, yet, if he withdrew from it in good faith and clearly announced his desire for peace, then, if he be pur- sued, his rights of self-defense revive." We do not mean to say that the jury oirght to have found that the accused, after kicking the deceased lightly, withdrew in good faith from further contest and that his conduct should have been so inter- preted. It was for the jury to say whether the withdrawal was in good faith, or was a mere device by the accused to obtain some advantage of his adversary: But we are of opinion that, under the circumstances, they might have found that the accused, although in the wrong when he kicked or kicked at the deceased, did not provoke the fierce attack made upon him by the latter, with knife in hand, in any sense that would deprive him altogether of the right of self-defense against such attack. If the accused did, in fact, withdraw from the combat, and - intended so to do, and if his conduct should have been reasonablv so interpreted by the deceased, then the assault of the latter with a deadly weapon, with the intent to take the life of the accused or to do him great bodily harm, entitled the latter to the benefit of the principle announced in Beard v. United States, 158 JJ. S. 550, 564, in which case it was said: "The defendant was where he had a right to be when the deceased advanced upon him in a threatening manner and with a deadly weapon; and if the accused did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith be- lieved, that the deceased intended to take his life or to do him great bodily harm, he was not obliged to retreat, nor to consider whether he SECT. III.] ROWE V. UNITED STATES. 535 could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, hon- estly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury." The charge, as above quoted, is liable to other objections. The court said that both the accused and the deceased had a right to be in the hotel, and that the law of retreat in a case like that is different from what it would be if they had been on the outside. Still, the court said that, under the circumstances, both parties were under a duty to use all reasonable means to avoid a collision that would lead to a deadly conflict, such as keeping out of the affray, or by not going into it, or "by stepping to one side"; and if the accused could have saved his life, or protected himself against great bodily harm, by inflicting a less dangerous wound than he did upon his assailant, or "if he could have paralyzed that arm," without doing more serious injury, the law commanded him to do so. In other words, according to the theory of the charge, although the deceased sprang at the accused, with knife in hand, for the purpose of cutting him to pieces, yet if the accused could have stepped aside or paralyzed the arm of his assailant, his killing the latter was not in the exercise of the right of self-defense. The ac- cused was where he had a right to be, and the law did not require him to step aside when his assailant was rapidly advancing upon him with a deadly weapon. The danger in which the accused was, or believed himself to be, at the moment he fired is to some extent indicated by the fact, proved by the government, that immediately after he disabled his assailant (who had two knives upon his person) he said that he, the accused, was himself mortally wounded and wished a physician to be called. The accused was entitled, so far as his right to resist the attack was concerned, to remain where he was, and to do whatever was neces- sary or what he had reasonable grounds to believe at the time was necessary, to save his life or to protect himself from great bodily harm. And under the circumstances, it was error to make the case depend in whole or in part upon the inquiry whether the accused could, by stepping aside, have avoided the attack, or could have so carefully aimed his pistol as to paralyze the arm of his assailant without more seriously wounding him. Without referring to other errors alleged to have been committed, the judgment below is reversed and the case is remanded for a new trial. Reversed. Brown and Peckham, JJ., dissented. 536 STOFFEB V. STATE. [CHAP. V. STOPFER V. STATE. Supreme Court ok Ohio. 18C4. [Reported 15 Ohio ^tute, 47.] Rannet, J.^ From the bill of exceptions it appears that, after the state had given evidence tending to prove that the plaintiff made an assault upon Webb in the street, with the intent to murder him with a knife, and that in the conflict which ensued, Webb was killed b}- him, the plaintiff in error gave evidence tending to prove that he desisted from the conflict, declined further combat, and retreated rapidly a dis- tance of one hundred and fifty feet, and took refuge in the house of a stranger, where he shut and held the door ; that Webb, his brother, and one Dingman immediately pursued, throwing stones at liim, and crying " Kill him ! " as he retreated, and, forcibly opening the door, they entered the house and assaulted him, and in the conflict which immediately ensued, Webb was killed. Upon this state of the evidence, counsel for the plaintiff' in error requested the court to instruct the jury that the killing of Webb would be excusable, although the accused should have made the assault upon him with the malicious intent of killing him, if the jury should find that, before Webb had received any injury, the accused desisted from the conflict, and in good faith declined further combat, and retreated to a place which he might reasonably regard as a place of security, and that Webb and those in concert with him, immediately pursued and forcibly entered such place, and there made an assault upon the accused, in such manner as to warrant him in believing that his life was in danger at the hands of Webb, and without deliberation or malice, and to save his own life, he took that of Webb. This instruction the court refused to give, but, in substance, charged the jury that, under such circumstances, the accused would be guilty of manslaughter, provided they " should regard the conduct of Webb, from the commencement of the conflict in the street to the time of the conflict in the house, as continuous." ' The difference between the instruction asked and that given is easily appreciated. The one makes the conduct of the accused in declining, in good faith, further conflict, and retreating to a place of supposed security from the attacks of Webb, decisive of his right to defend him- self there, when afterward assaulted by Webb and those in concert with him, and, if necessary to save his own life, without malice or .pre- meditation to take that of Webb : while the other makes the conduct of Webb the test whether the conflict had so far terminated as to restore the accused to his right of self-defence, and denies him this right, if the conduct of Webb, from the conflict in the street to that in the house, ^ Part of the case, not involving a que.stion of justification, is omitted. SECT. III.] STOFFEK V. STATE. 537 was to be regarded as continuous. We are not permitted to regard this jetreat of the accused, as either colorable, or made to gain an advantage, with a view of renewing the assault upon AVebb. The in- struction requested assumed that it must have been made with the bona fide purpose of abandoning the conflict ; and in the instruction given, the jurv were charged that if the attack upon Webb in the street was murderous, the fact that the accused " repented and fled, . . . intend- ing to quit the combat, and abandoning all murderous purpose," would have no further eflTect than to mitigate the crime to manslaughter. Upon the precise question made in this case, very little light is thrown by actual adjudications ; and it is not to be denied that some difference of opinion has ol)tained among elementary writers upon criminal law. The learned and humane Sir Matthew Hale has expressed an opinion upon the very point, in accordance with the instruction requested in the court below. He says : " Suppose that A. by malice makes a sudden assault upon B., who strikes again, and pursuing hard upon A., A. retreats to the w-all, and, in saving his own life kills B. ; some have held this to be murder, and not se defendeudo, because A. gave the fii-st assault. But Mr. Dalton thinketh it to be se defendeudo, though A. made the first assault, either 'with or without malice^ and then retreated. It seems to me, that if A. did retreat to the wall upon a real intent to save his life, and then merel}- in his own defence killed B., that it is sc defendendo, and with this agrees Stamford's P. C. lib. 1. c. 7, fol. 15a. But if on the other side, A., knowing his advantage of strength, or skill, or weapon, retreated to the wall merely' as a design to protect himself, under the shelter of the law, as in his own defence, but really intending to kill B., then it is murder or manslaughter, as the circumstance of the case requires." 1 Hale's P. C. 479, 480. Sergeant Hawkins, however, thinks this opinion too favoi'able, and' insists that the one who gives the first blow cannot be permitted to kill the other, even after retreating to the wall ; because the necessity to which he is at last reduced was brought upon himself. 1 Hawk. P. C. 87. Later English writers have generally contented themselves with stat- ing the opposing opinions of these eminent authors, without adding anything material upon- the subject. 4 Bl. Com. 186; 1 Russ. on Crimes, 662. In our own country, Mr. Bishop, in his work on criminal law, has examined the whole subject witii learning and ability, and coinciding, as we understand liim, in the opinion expressed by Lord Hale, he thus expresses his own conclusion: "The space for repentance is always left open. And when the combatant does in good faith withdraw as far as he can, reall}^ intending to abandon the conflict, and not mereh' to gain fresh strength or some new advantage for an attack, but the other will pursue him, then, if taking life becomes inevitable to save life, he is justified." 2 Bishop on Crim. Law, s. 556. But if the question cannot bo said to be settled upon autliority, we 538 STOPFER V. STATE. [CHAP. V. think its solution upon principle very obvious, in the light of doctrines upon which all are agreed. It is very certain that while the party who first commences a malicious assault continues in the combat, and does not put into exercise the duty of withdrawing in good faith from the place, although he may be so fiercely pressed that he cannot retreat, or is thrown upon tlie ground or driven to the wall, he cannot justif}- taking the life of his adversary, however necessary it may be to save his own ; and must be deemed to have brought upon himself the neces- sit}' of killing his fellow-man. '• For otherwise," as said by Ch. J. Hale, '• we should have all cases of murder or manslaughter, b}' way of interpretation, turned into se defeiidendo." 1 Hale, P. C. 482. There is ever}' reason for saying that the conduct of the accused, relied upon to sustain such a defence, must have been so marked, in the matter of time, place, and circumstance, as not onlv clearly to evince the withdrawal of the accused, in good faith, from the combat, but also such as fairl}- to advise his adversary' that bis danger had passed, and to make his conduct thereafter, the pursuit of vengeance, rather than measures taken to repel the original assault. But when this is made to appear, we know of no principle, however criminal the pre- vious' conduct of the accused may have been, which allows him to be hunted down and his life put in jeopard}', and denies him the right to act upon that instinct of self-preservation which spontaneously arises alike in the bosoms of the just and the unjust. There is no ground for saying that this right is forfeited by previous misconduct ; nor did the court below proceed upon any such idea, since the jurj' were charged, that if the conflict which ensued upon the first assault had ended, and a new one was made by Webb and his associates in the house, the accused, under reasonable apprehension of loss of life or great bodilj' 'harm, would be justified in taking the life of his assailant. The error of the court consisted in supposing that whatever might be done b}' the accused to withdraw himself from the contest, the conflict would never end so long as Webb made continuous efforts to prolong it. If this is a sound view of the matter, the condition of the accused would not have been bettered if he had fled for miles and had finalh' fallen down with exhaustion, provided Webb was continuous in his efforts to over- take him. But this view is consistent with neither the letter nor spirit of the legal principle. A conflict is the work of at least two persons, and when one has wholly withdrawn from it, that conflict is ended ; and it cannot be prolonged b}- the efforts of liim who remains to bring on another. It is ver^- true, that the original assault may have aroused the passions which impel the pursuer to take vengeance upon his adversary- ; and if death should ensue from his act, it might be entirelv sufficient to mitigate the crime. But it would still be a crime, and the law cannot for a moment tolerate the execution of vengeance b}' private parties. If this were allowed, such passions might be as effectually aroused by words as blows; and, instead of the principle, so vital to the peace of society', that the law alone must be relied upon for the redress of all SECT, III.] STOPFER V. STATE. 539 injuries, we should have avengers of injuries, real or supposed, execut- ,ing their punishments upon victims stripped of all legal power, what- ever might be the necessity, of defending their own lives. It is needless to say that such a course would be alike destructive to public order and private security-, and would be substituting for the empire of the laws, a system of force and violence. A line of distinction must be somewhere drawn, which, leaving the originator of a combat to the necessary consequences of his illegal and malicious conduct, shall neither impose upon him punishments or dis- abilities unknown to the law, nor encourage his adversary to wreak vengeance upon him, rather than resort to the legal tribunals for redress ; and we think, upon pi'inciple and the decided weight of authority-, it lies precisely where we have already indicated. While he remains in the conflict, to whatever extremity he ma}' be reduced, he cannot be ex- cused for taking the life of his antagonist to save his own. In such case, it may be rightfullv and truthfully said that he brought the neces- sity upon himself by his own criminal conduct. But when he has suc- ceeded in wholly withdrawing himself from the contest, and that so palpably as, at the same time, to manifest his own good faith and to remove an}' just apprehension from his adversary, he is again remitted to his right of self-defence, and ma\' make it effectual by opposing force to force, and, when all other means have failed, ma}' legally act upon the instinct of self-preservation, and save his own life by sacrificing the life of one who. persists in endangering it. If these views are correct, their application to the case under consi- deration, is very obvious. Both the instruction requested, and that given, are based upon the hypothesis that the accused had, in good faith and abandoning all criminal purpose, withdrawn from the combat ; that he had not only retreated to the wall, but behind the wall ; and had not only gone from the view of his adversary, but to a place of sup- posed security from his attacks. In all this, his conduct was strictly lawful. In the language of the books, he "had actually put into exer- cise the duty of withdrawing from the place." It is very true that the evidence tended to implicate him in a very serious crime in the first attack upon Webb, for which his subsequent conduct could not atone, and for which he was then, and still is, liable to prosecution and punish- ment ; but when Webb and his associates afterwards pursued and at- tacked him, they were wholly in the wrong, and necessarily took upon themselves all the hazards of such an unlawful enterprise. 540 PEOPLE V. BUTTON. [CHAP. V. PEOPLE V. BUTTON. Supreme Court of California. 1895. [Reported 106 Cal. 628.] Garoutte, J. The appellant was cliarged with the crime of murder and convicted of manslaughter. He now appeals from the judgment and order denying his motion for a new trial. For a perfect understanding of the principle of law involved in this appeal it becomes necessary to state in a general waj* the facts leading up to the homicide. As to the facts thus summarized there is no material contradiction. The deceased, the defendant, and several other parties were camped in the mountains. They had been drinking, and, except a bo}-, were all under the influence of liquor more or less, the defendant to some extent, the deceased to a great extent. The de- ceased was lying on the ground with his head resting upon a rock, when a dispute arose between him and the defendant, and the defend- ant thereupon kicked or stamped him in the face. The assault was a vicious one, and the injuries of deceased occasioned thereb}' most serious. One eye was probably destroyed, and some bones of the face broken. An expert testified that these injuries were so serious as likel}" to produce in the injured man a dazed condition of mind, impair- ing the reasoning faculties, judgment, and powers of perception. Im- mediatel}' subsequent to this assault the defendant went some distance from the camp, secured his horse, returned, and saddled it, with the avowed intention of leaving the camp to avoid further trouble. Tbe time thus occupied in securing his horse and preparing for departure may he estimated at from five to fifteen minutes. The deceased's con- duct and situation during the absence of defendant is not made plain b}'^ the evidence, but he was probabl}' still lying where assaulted. At this period of time, the deceased advanced upon defendant with a knife, which was taken from him by a bystander, whereupon he seized his gun and attempted to shoot the defendant, and then was himself shot by the defendant and immediately died. There is also some further evidence that deceased ordered his dog to attack the defendant, and that defendant shot at the dog, but this evidence does not appear to be material to the question now under consideration. Upon this state of facts the court charged the jury as to the law of the case, and declared to them in various forms the principle of law which is fairly embodied in the following instruction: ''One who has sought a combat for the purpose of taking advantage of another, may afterward endeavor to decline an}' further struggle, and, if he really and in good faith does so before killing the person with whom he sought the combat for such purpose, he may justify the killing on the same sround as he misflit if he liad nr)t orisjinallv sought such combat for such purpose, provided that yon also believe that his endeavor was SECT. III.] PEOPLE V. BUTTON. 541 of such a character, so indicated as to have reasonabl}' assured a rea- sonable man that he was endeavoring in good faith to decline further combat, unless you further believe that in the same combat in which the fatal shot was fired, and prior to the defendant endeavoring to cease further attack or quarrel, the deceased received at the hands of the defendant such inj.uries as deprived him of his reason or his capacity to receive impressions regarding defendant's design and endeavor to cease further combat." It is to that portion of the foregoing instruction relating to the capacity of the deceased to receive impressions caused b}' the defend- ant's attack upon him that appellant's counsel has directed his assault ; and our attention will be addressed to its consideration. The recital of facts indicates, to some extent at least, that the assault upon de- ceased was no part of the combat subsequently arising in which he lost his life ; yet the events were so closely connected in point of time that the court was justified in submitting to the jury the question of fact as to whether or not the entire trouble was but one affray or combat. Section 197 of the Penal Code, wherein it says, in effect, that tlie assailant must really and in good faith endeavor to decline an}- fur- ther struggle befoi-e he is justified in taking life, is simply declarative of the common law. It is but the reiteration of a well-settled principle, and in no wise broadens and enlarges the right of self-defence as de- clared by courts and text-writers ever since the days of Lord Hale. It follows that the declaration of the code above cited gives us no light upon the matter at hand, and, from an examination of man}' books and cases, we are unable to find a single authority directly in point upon the principle of law here involved. It is thus apparent that the question is both interesting and novel. The point at issue may be made fairly plain by the following illustra- tions : If a party should so violently assault another by a blow or stroke upon the head as to render that party incapable of understanding or appreciating the conditions surrounding him, and the party assailed should thereupon pursue the retreating assailant for many hours and miles with a deadly weapon and with deadly intent, and upon overtak- ing him should proceed to kill him, would the first assailant, the party retreating, be justified in taking the then aggressor's life in order to save his own? In other words, did the first assault, producing the effect that it did debar defendant (after retreating under the circum- stances above depicted) from taking his opponent's life, even though that opponent at the time held a knife at his throat with deadly intent; or, putting it more concisel}', did the aggressor b}' his first assault for- feit his life to the party assaulted ? Or, viewing the case from the other side, should a man be held guiltless who without right assaults another so viciously as to take away his capacity to reason, to deprive him of his mind, and then kill him, because, when so assaulted, his assailant is unable to understand that the attacking i)arty is retreating and has withdrawn from the combat in good faith? In other words, 542 PEOPLE V. BUTTON. [CHAI. V. maj' a defendant so assault another as to deprive him of his mind, and then kill him in self-defence when he is in such a condition that he is unable to understand that his assailant has withdrawn in good faith from the combat? In order for an assailant to justify the killing of his adversary he must not only endeavor to really and in good faith withdraw from the combat, but he must make known his intentions to his adversary'. His secret intentions to withdraw amount to nothing. They furnish no guide for his antagonist's future conduct. The}' indicate in no way that the assault may not be repeated, and afford no assurance to the party assailed that the need of defence is gone. This principle is fairly illustrated in Hale's Pleas of the Crown, page 482, where the author saj's : " But if A assaults B first, and upon that assault B re-assaults A, and that so tiercel}' that A cannot retreat to the wall or other non ultra without danger of his life, nay, though A falls upon the ground upon the assault of B and then kills B, this shall not be interpreted to Ite se defendendoP The foregoing principle is declared sound for the reason that, though A was upon the ground and in great danger of his life at the4;ime he killed B, still he was the assailant, and at the time of the killing had done nothing to indicate to the mind of B that he had in good faith withdrawn from the combat, and that B was no longer in danger. In Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, in speaking to this question, the court said: "There is ever}' reason for saying that the conduct of the accused relied upon to sustain such a defence must have been so marked in the matter of time, place, and circumstance as not only clearly to evince the withdrawal of the accused in good faith from the combat, but also such as fairly to advise his adversary that his danger had passed, and to make his conduct thereafter the pursuit of vengeance , rather than measures taken to repel the original assault." It is also said in State v. Smith, 10 Nev. 106, citing the Ohio case: " A man who assails another with a deadly weapon cannot kill his adversary in self-defence until he has fairly notified him by his conduct that he has abandoned the contest ; and, if the circumstances are such that he cannot so notify him, it is his fault, and he must take the consequences." It is, therefore, made plain that knowledge of the withdrawal of the assailant in good taith from the combat must be brought home to the assailed. He must be notified in some way that danger no longer threatens him, and that all fear of further harm is groundless. Yet, in considering this question, the assailed .must be deemed a man of ordinary understanding ; he must be gauged and tested by the common rule — a reasonable man; his acts and conduct must be weisfhed and measured in the light of that test, for such is the test applied wherever the right of self-defence is made an issue. His naturally demented condition will not excuse him from seeing that his assailant has with- drawn from the attack in good faith. aSTeither his passion nor his cowardice will be allowed to blind him to the fact that his assailant is SECT, III.] PEOPLE V. BUTTON. 543 running awa}-, and all danger is over. If the subsequent acts of the attacking party be such as to indicate to a reasonable man that he in good faith has withdrawn from the combat, they must be held to so indicate to the party attacked. Again, the part}' attacked must also act in good faith. He must act in good faith toward the law, and allow the law to punish the offender. He must not continue the com- bat for the purpose of wreaking vengeance, for then he is no better than his adversarj. The law will not allow him to sa}', " I was not aware that my assailant had withdrawn from the combat in good faith," if a reasonable man so placed would have been aware of such with- drawal. If the part}' assailed has eyes to see, he must see ; and, if he has ears to hear, he must hear. He has no right to close his e^'es or deaden his ears. This brings us directly to the consideration of the point in the case raised by the charge of the court to the jury. While the deceased had eyes to see and ears to hear he had no mind to comprehend, for his mind was taken from him bv the defendant at the first assault. Throuo'h- out this whole affra}' it must be conceded that the deceased was guilt}' of no wrong, no violation of the law. When he attempted to kill the defendant he thought he was acting in self-defence, and according to his lights, he was acting in self-defence. To be sure, those lights, supplied by a vacant mind, were dim and unsatisfactory, yet they were all the deceased had at the time, and not only were fur- nished by the defendant himself, but the defendant in furnishing them forcibly and unlawfully deprived the deceased of others which were perfect and complete. But where does the defendant stand? It can- not be said that he was guilty of no wrong, no violation of the law. It was he who made the vicious attack. It was he who was guiltv of an unprovoked and murderous assault. It was he who unlawfully brought upon himself the necessity for killing the deceased. It cannot be pos- sible that in a combat of this character no crime has been committed against the law. Yet the deceased has committed no offence. Neither can the defendant be prosecuted for an assault to commit murder, for the assault resulted in the commission of a homicide as a part of the affray. For these reasons we consider that the defendant cannot be held guiltless. Some of the earlier writers hold that one who gives the first blow cannot be perrjitted to kill the other, even after retreating to the wall, for the reason that the necessity to kill was brought upon himself. (1 Hawkins' Pleas of the Crown, 87.) While the humane doctrine, and especially the modern doctrine, is more liberal to the assailant, and allows him an opportunity to withdraw from the combat, if it is done in good faith, yet it would seem that under the circumstances here pre- sented the more rigid doctrine should be applied. The defendant not only brought upon himself tiie necessity for the killing, but, in addition thereto, brought upon himself the necessity of killing a man wholly innocent in the eyes of the law ; not only wholly innocent as beino- a 544 PEOPLE V. BUTTON. [CHAP. V. person naturally non compos, but wholl}' innocent by being placed in this unfortunate condition of mind bj' the act of the defendant himself. We conclude, therefore, that the instruction contains a sound principle of law. The defendant was the first wrongdoer ; he was the only wrongdoer; he brought on the necessit}' for. the killing, and cannot be allowed to plead that necessity against the deceased, who at the time was non compos by reason of defendant's assault. The citations we have taken from Hale, the Ohio case, and the Nevada case, all declare that the assailant must notif\' the assailed of his witlidrawal from the combat in good faith, before he will be justified in taking life. Here the defendant did not so notif3'the deceased. He could notnotifj' him, for by liis own unlawful act he had placed it out of his power to give the deceased such notice. Under tliese circumstances he left no room in his case for the plea of self-defence. The court gave the following instruction to the jury as to the law bearing upon the facts of the case: " And no man, by his own lawless acts, can create a necessit}- for acting in self-defence, and then, upon killing the person with whom he seeks the difficulty, interpose the plea of self-defence, subject to the qualification next hereinafter set out. The plea of necessity is a shield for those only who are without fault in occasioning it and acting under it. The court instructs the jury that if you are satisfied that there was a quarrel between the defendant and deceased, in which the defendant was the aggressor and first as- saulted the deceased by means or force likely to produce and actually producing great l)0{lil3' injury to the deceased, and that the defendant thereafter in the same quarrel fatally shot the deceased, then you must find the defendant guilty, subject to this qualification." This instruction appears to have been given subject to some qualifi- cation, and as tn the e^itent and character of the qualification the record is not plain. But, whatever it may liave been, the vice of the instruc- tion could not be taken away. The instruction is bad law, and no explanation or qualification could validate it. It is not true that tiie plea of necessity is a shield for those only who are without fault in occasioning it and acting under it. As we have already seen, tliis is the rigid doctrine declared b}- Sergeant Hawkins, but not (he humane doctrine of Lord Hale and modern authority. The latter portion of the instruction is in direct conflict with the StotTer case, already cited, where the declaration of the same principle in a somewhat different form caused a reversal of the judgment. It was there said : "If this is a sound view of the matter, the condition of the accused would not liave been bettered if he liad fled for miles, and had finally fallen down with exhaustion, provided Webb was continuous in his efforts to over- take him. But this view is consistent with neither the letter nor the spirit of the legal principle." The instruction assumes that, if the defendant was the aggressor, the quarrel could subsequently assume no form or condition whereb}- the defendant would hv justified in taking the life of the i)arty assailed. The law of self-defence is to the contrary, SECT. III.] PEOPLE V. BUTTON. 545 and is clearlj'^ recognized to the contrary by the provision of the Penal Code to which we have already referred. The court also gave the jury the following instruction to gnide tliem in their deliberations: " If you find from the evidence that, prior to the time of the shooting of the deceased by the defendant, they had a quarrel and altercation, and that the defendant stamped or kicked the deceased in the face, and that defendant thereafter really and in good faith, although he was the assailant, endeavored to decline any further struggle before the homicide was committed, and that [after the first assault had ceased, and there had an interval elapsed between said first assault and the final assault, making said assaults respective!}', although in some degree related to eacli other, yet substantially distinct trans- actions, each attended with its own separate circumstances] the deceased procured his gun antl made such an attempt to shoot defendant as gave the defendant reasonable ground to apprehend and fear that the de- ceased was about to take his life, or do him great bodily injury, and that, acting under such reasonable apprehension alone, defendant shot the deceased, then you will acquit the defendant ; and this will be _your duty, notwithstanding the defendant may have been in the wrong in first assailing or attacking the deceased." That portion of the charge inclosed in brackets embodied a modification of the original charge, as asked bv counsel, and we think should not have been in- serted. It had a tendency to mislead the jury, and the instruction was perfectly sound without it. The question as to the capacit}- of the deceased's mind to understand and appreciate was not an element in- volved in this charge, and with that the court was not then dealing ; but by the modification it deprived the defendant of the right to go before the jury upon the plea of self-defence, if there was but one assault which led up to the homicide. The right of the defendant to act in self-defence was in no way dependent upon the commission of two assaults. If there was but one assault which caused the combat, even though that assault was a part of the combat, and was made by the defendant, still he had the riglit of self-defence if his subsequent conduct was such as to indicate to the assaulted party that he had withdrawn bi good faith from the struggle. The etfect of the modifica- tion was to plainly intimate to tlie jury that, if the wiiole afl['ray was but one connected quarrel or altercation, then the defendant, under no pos- sible setof circumstances, could be justified in law in kiUing his adversary. This is wrong. As to the true solution of tlie question by the jury which the court was then discussing, it was entirely immaterial whether or not there was one or two assaults. We think the questions we have discussed dispose of all material matters raised upon the appeal. For the foregoing reasons the judgment and order are reversed and the cause remanded for a new trial. 546 COMMONWEALTH V. DRUM. [CHAP. V. COMMONWEALTH v. DRUM. Court of Oyer axd Termineu, Pennsylvania. 1868. [Reported 58 Pa. 9.] William Drum was charged in the Court of Quarter Sessions of Westmoreland count}' for the murder of David Mohigan. A true bill having been found h\ the grand jury of that court, it was certifled into the Court of O^er and Terminer of the same count}'. Agnew, J., charged the jury as follows.^ . . . The previous occurrences on Monday niglit and Thursda}' night fur- nished no justification or even excuse to Mohigan in making the attack upon the prisoner on Thursday night at the saloon. This attack con- stituted a sufficient ground on part of the prisoner to defend himself in a proper manner. But this defencie, as I have before said, must not exceed the reasonable bounds of the necessit}'. Here the jur}' must attend to this important distinction. The argument of the defence is, that when the slayer is not in fault — is not fighting at the time, or has given up the fight — and then slays his adversarj', he is vdxcusuble as in self-defenqe. But though this may be the case, it is not always so. The true criterion of self-defence, in such a case, is, whether there ex- isted such a necessity' for killing the adversary as required the slayer to do it in defence of his life or in the preservation of his person from great bodily harm. If a man approaciies another with an evident inten- tion of fighting him with his fists onl}-, and where, under the circum- stances, nothing would be likely to eventuate from the attack but an ordinary beating, the law cannot recognize the necessity of taking life with a deadly weapon. In such a case it would be manslaughter ; and if the deadly weapon was evidently used witii a murderous and bad- hearted intent, it would even be murder. But a blow or lilows are just cause of provocation, and if the circumstances indicated to the slayer a plain necessit}' of protecting himself from great bodily injury, he is excusable if he slays his assailant in an honest purpose of saving himself from this great harm. The right to stand in self-defence without fleeing has been strongly asserted by the defence. It is certainl}' true that ever}' citizen may rightfully traverse the street, or may stand in all proper places, and need not flee from every one who chooses to assail him. Without this freedom our liberties would be worthless. But the law does not apply this right to homicide. The question here does not involve the right of merely ordinary defence, or the right to stand wherever he may right- fully be, but it concerns the right of one man to take the life of another. Ordinary defence and the killing of another evidently stand upon differ- ent footing. When it comes to a question whether one man shall flee or another shall live, the law decides that the former shall rather flee than that the latter shall die. 1 Only so much of the charge as is concerned with the question of self-defenc« is given. — Ed. SECT. III.] STATE V. DONNELLY. 547 STATE V. DONNELLY. Supreme Court of Iowa. 1886. [Reported 69 Iowa, 705.] Adams, C. J.^ — The defendant shot his father, Patrick Donnelly, with a shot-gun, causing a wound of which lie died about two days afterwards. The deceased had become very angry with the defendant, and at time of the firing of the fatal shot was pursuing the defendant with a pitchfork, and the circumstances were such that we think that the jury might have believed that he intended to take the life of the defendant. On the other hand, the circumstances were such that we think that the jury might have believed that the defendant could have escaped, and fully protected himself by retreating, and that he had reasonable ground for so thinking. The court gave an instruction in these words : " You are instructed that it is a general rule of the law that, where one is assaulted by another, it is the duty of the person thus assaulted to retire to what is termed in the law a wall or ditch before he is justified in repelling sucli assault in taking the life of his assailant. But cases frequently arise where the assault is made with a dangerous or deadly weapon, and in so fierce a manner as not to allow the party thus assaulted to retire without manifest danger to his life or of great bodily- injury ; in such cases he is not required to retreat." The defendant assigns the giving of this instruction as error. He contends that the court misstated the law in holding, by implication, that he is excused from doing so only where it would manifestly- be dangerous to attempt it. His position is, that the assailed is under obligation to retreat onl}' where the assault is not felonious, and that where it is felonious, as the evidence tends to show in this case, he may stand his ground and kill his assailant, what- ever his means of retreat and escape might be, provided only he had reasonable cause for believing that if he stood his ground, and did not kill his assailant, his assailant would kill him, or inflict a great bodily injur}-. Under this theory and the evidence, the jurj- might have found that the defendant was justified in killing his father, and that, too, even though there had been other evidence showing that his father was so old and decrepit that the defendant could have escaped him by simple- walking away from him. It is, perhaps, not to be denied that the defendant's theory finds some support in text-books and decisions; but in our opinion it cannot be approved. This court has, to be sure, held that a person assailed in his own house is not bound to retreat, though bv doing so he might manifestly secure his safety. State v. Middleham, 62 Iowa, 150. While there is some ground for contending that the rule does not fully accord with the sacredness which in later years is attached to human life, the course of decisions appeared to be * Part of the opinion only is given. 548 STATE V. DONNELLY. [CIIAP. V, such as not to justif}' a departure from it. The rule for which the defendant contends seems, so far as it finds support in the autliorities,* to be based upon the idea that, where a person attempts to commit a I felony, it is justifiable to take the offender's life if that is the only way \ in which he can be prevented from consummating the felon}' attempted. But where a person is assailed b}- another who attempts to takes his life, or inflict great bodily injury, and the assailed can manifestly secure safety by retreating, then it is not necessary to take the life of the assailant to prevent the consummation of the felony attempted. In Roscoe, Crim. Ev. 768, note, the annotator sajs : "When a man expects to be attacked, the right to defend himself does not arise until he has done everything to avoid that necessit}-," — citing People v. Sullivan, 7 N. Y. 396; Mitchell v. State, 22 Ga. 211 ; Lyon v. State, id. 399 ; Cotton v. State, 31 Miss. 504 ; People v. Hurley, 8 Cal. 390 ; State V. Thompson, 9 Iowa, 188; U. S. v. Mingo, 2 Curt. 1. In our opinion the court did not err in giving the instruction in question.^ 1 In State v. Bartlett, 170 Mo. 658, 668, Sherwood, P. J., said: "Defendant, when first assaulted and beaten hj Edwards on the street, was not bound to retreat to his office. He had a right to be where he was, and the wrong of Edwards in assaulting and beating him there, could not deprive him of that right and so this court has, in effect, decided. [State i'. Evans, 124 Mo. 397; see, also, State v. Hudspeth, 150 Mo lor. cit. .3.3, and cases cited.] Because the right to go where one will without let or hindrance, despite of threats made, necessarily implies the right to stay where one will without let or hindrance. These remarks are controlled by the thought of a lawful right to be in the particular locality to which he goes, or in which he stays. " It is true, human life is sacred, but so is human liberty ; one is as dear in the eye of the law as the other, and neither is to give way and surrender its legal status in order that the other may exclusively exist, supposing for a moment such an anomaly to be possible. In other words, the wrongful and violent act of one man shall not abolish or even temporarily suspend the lawful and constitutional right of his neighbor. And this idea of the non-necessity of retreating from any locality where one has the right to be, is growing in favor, as all doctrines based upon sound reason inevitably will, and has found voice and expression elsewhere." \ SECT. III.] BEARD V. UNITED STATES. 549 BEARD V. UNITED STATES. Supreme Court of the United States. 1894. [Reported 158 U. S. 550.] Harlan, J.^ . . . The court below committed an error of a more serious character when it told the jury, as in effect it did by different forms of expression, that if the accused could have saved his own life and avoided taking the life of Will Jones by retreating from and getting out of the way of the latter as he advanced upon him, the law made it his duty to do so ; and if he did not, when it was in his power to do so without putting his own life or body in imminent peril, he was guilty of manslaughter. The court seemed to think if the deceased had advanced upon the accused while the latter was in his dwelling- house and under such circumstances as indicated the intention of the former to take life or inflict great bodil}' injury, and if, without retreat- ing, the accused had taken the life of his assailant, having at the time reasonable grounds to believe, and in good faith believing, that his own life would be taken or great bodily harm done him unless he killed the accused, the case would have been one of justifiable homicide. To that proposition we give our entire assent. But we cannot agree that the accused was under an}- greater obligation, when on his own premises, near his dwelling-house, to retreat or run away from his assailant, than he would have been if attacked within his dwelling- house. The accused being where he had a right to be, on his own premises, constituting a part of his residence and home, at the time the deceased approached him in a threatening manner, and not having by language or by conduct provoked the deceased to assault him, the question for the jury was whether, without fleeing from his adversar}' he had, at the moment he struck the deceased, reasonable grounds to believe, and in good faith believed, that he could not save his life or protect himself from great bodily harm except bv doing what he did, namely, strike the deceased with his gun, and thus prevent his further advance upon him. Even if the jury had been prepared to answer this question in the aflfirmative — and if it had been so answered, the defendant should have been acquitted — they were instructed that the accused could not properly be acquitted on the ground of self-defence if they believed that, by retreating from his adversary, by "getting out of the way,'' he could have avoided taking life. We cannot give our assent to this doctrine. The application of the doctrine of " retreating to the wall " was care- fully examined by the Supreme Court of Ohio in Erwin v. State, 29 Ohio St. 186, 193, 199. That was an indictment for murder, the de- 1 Only so much of the opinion as discusses the question of self-defence is given. — En. 550 BEARD V. UNITED STATES. [CHAP. V. fendant being found guilty. The trial court charged the jurj^ that if the defendant was in the lawful pursuit of his business at the time the fatal shot was fired, and was attacked by the deceased under circum- stances denoting an intention to take life or to do great bodily harm, he could lawtulh' kill his assailant provided he used all means " in his power" otherwise to save his own life or prevent the intended harm, " such as retreating as far as he can, or disabling his adversary, with- out killing him, if it be in his power ; " that if the attack was so sudden, fierce, and violent that a retreat would not diminish but in- crease the defendant's danger, he might kill his adversary without re- treating ; and further, that if from the character of the attack there was reasonable ground for defendant to believe, and he did honestl}' believe, that his life was about to be taken, or he was to suffer great bodily harm, and that he believed honestly- that he would be in equal danger by retreating, then, if he took the life of the assailant, he was excused. Of this charge the accused complained. Upon a full review of the authorities and looking to the principles of the common law, as expounded by writers and courts of high authorit}', the Supreme Court of Ohio held that the charge was errone- ous, saying : " It is true that all authorities agree that the taking of life in defence of one's person cannot be either justified or excused, except on the ground of necessity ; and that such necessit}' must be imminent at the time ; and the}' also agree that no man can avail himself of such necessity if he brings it upon himself. The question then is simply this : Does the law hold a man who is violently and feloniously as- saulted responsible for having brought such necessity upon himself on the sole ground that he failed to fl}- from his assailant when he might safely have done so? The law, out of tenderness for human life and the frailties of human nature, will not permit the taking of it to repel a mere trespass, or even to save life where the assault is provoked ; but a true man who is without fault is not obliged to flv from an assailant, who by violence or surprise maliciousl}' seeks to take his life or to do him enormous bodily harm. Now, under the charge below, notwithstanding the defendant ma}' iiave been without fault, and so assaulted, with the necessity of taking life to save his own upon him ; still the jury could not have acquitted if they found he had failed to do all in his power otherwise to save his own life, or pre- vent the intended harm, as retreating as far as he could, etc. In this case we think the law was not correctly stated." In Runyan v. State, 57 Indiana, 80, 84, which was an indictment for murder, and where the instructions of the trial court involved the present question, the court said : " A very brief examination of the American authorities makes it evident that the ancient doctrine, as to the duty of a person assailed to retreat as far as he can, before he is justified in repelling force by force, has been greatly modified in this country, and has with us a much narrower application tiian former!}'. Indeed, the tendency of the American mind seems to be very strongly SECT. III.] BEARD V. UNITED STATES. 551 against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save human life, and that tendenc}- is well illustrated b\' the recent decisions of our courts, bearing on the general subject of the right of self-defence. The weight of modern authority, in our judgment, establishes the doctrine that, when a person, being without fault and in a place where he has a right to be, is violently assaulted, he ma}', without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defence, his assailant is killed, he is justifiable, ... It seems to us that the real question in the case, when it was given to the jury, was, was the defendant, under all the circumstances, justified in the use of a deadly weapon in repelling the assault of the deceased? We mean by this, did the defendant have reason to believe, and did he in fact believe, that what he did was necessar}' for the safet}' of his own life or to protect him from great bodily harm ? On that question the law is simple and easy of solution, as has been already seen from the authori- ties cited above." In East's Pleas of the Crown, the author, considering what sort of an attack it was lawful and justifiable to resist, even by the death of the assailant, says : " A man may repel force by force in defence of his person, habitation, or propertj', against one who manifestly intends or endeavors, by violence or surprise, to commit a known felon}', such as murder, rape, robbery, arson, burglary, and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger; and if he kill him in so doing, it is called justifiable self-defence ; as, on the other hand, the killing by such felon of any person so lawfully defend- ing himself will be murder. But a bare fear of any of these oflfences, however well grounded, as that another lies in wait to take away the party's life, unaccompanied with any overt act indicative of such an intention, will not warrant in killing that other by way of pi'evention. There must be an actual danger at the time." p. 271. So in Foster's Crown Cases: "In the case of justifiable self-defence, the injured part}' may repel force with force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoreth, with violence or surprise, to commit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary till he findeth himself out of danger, and if, in a conflict between them, he happeneth to kill, such killing is justifiable." c. 3, p. 273. In Bishop's New Criminal Law, the author, after observing that cases of mere assault and of mutual quarrel, where the attacking party has not the purpose of murder in his heart, are those to which is applied the doctrine of the books, that one cannot justify the killing of another, though apparently in self-defence, unless he retreat to the wall or other interposing obstacle before resorting to this extreme right, says that " where an attack is made with murderous intent, the person attacked is under no duty to fly ; he may stand his ground, and if need 552 BEARD V. UNITED STATES. [CHAP. V. be, kill his adversary. And it is the same where the attack is with ] a deadly weapon, for in this case the person attacked may well assume that the other intends murder, whether he does in fact or not." Vol. 1, , '''I § 850. The rule is thus expressed bj' Wharton: "A man may repel ' force b}' force in the defence of his person, habitation, or property, against an}' one or many who manifestly intend and endeavor by vio- lence or surprise to commit a known felon\' on either. In such case he is not compelled to retreat, but may pursue his adversary until he finds himself out of danger, and if in tlie contlict between them he happen to kill him, such killing is justifiable." 2 Wharton on Crim. Law, § 1019, 7th rev. ed. Phila. 1874. See also Gallagher v. State, 3 Minnesota, 270, 273 ; Pond v. People, 8 Michigan, 150, 177; State v. Dixon, 75 N. C 275, 295; State v. Sherman, 16 R. I. 631 ; Fields v. State, 32 N. E. Rep. 780 ; Eversole v. Commonwealth, 26 S. W. Rep. 816 ; Haynes v. State, 17 Georgia, 465", 483 ; Long v. State, 52 Missis- sippi, 23, 35; Tweedy v. State, 5 Iowa, 433 ; Baker v. Commonwealth, 19 S. W. Rep. 975 ; Tingle a. Commonwealth, 11 S. W. 812 ; 3 Rice's Ev. § 360. In our opinion the court below erred in holding that the accused, while on his premises, outside of his dwelling-house, was under a legal duty to get out of the wa}-, if he could, of his assailant, who, according to one view of the evidence, had threatened to kill the defendant, in execution of that purpose had armed himself with a deadly weapon, with that weapon concealed upon his person went to the defendant's premises, despite the warning of tlie latter to keep away, and by word and act indicated his purpose to attack the accused. The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon ; and if the accused did not provoke the assault and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadlj' weapon, in such wa}' and with .such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodil}' injury. As the proceedings below were not conducted in accordance with these principles, the judgment must be reversed and the cause re- manded with directions to grant a new trial. Other objections to the charge of the court are raised by the assign- ments of error, but as the questions which they present may not arise upon another trial, they will not be now examined. Judgment reversed} < 1 See Allen V. U. S., 164 U.S. 492. In that case Brown, J., said : "Nor is there any- thing in the instruction of the court that the prisoner was bound to retreat as far as he yECT. Ill,] ACERS V. UNITED STATES. 553 ACERS V. UNITED STATES. Supreme Court of the United States- 1896. [Reported 164 U. S. 388.] Brewer, J. Plaintiff in error was convicted in the District Court for the Western District of Arkansas of an assault with intent to kill, and sentenced to the penitentiary for the term of two years and six months. The undisputed facts were tliese: Defendant and one Joseph M.Owens had some dispute about business affairs, and while returning together to the house where they were both stopping, defendant picked up a stone about three inches wide, nine inches long and an inch and a half or two inches thick, and with it struck Owens on the side of the head, fracturing the skull. The defence was that there was no intent to kill; that defendant acted in self-defence ; that, believing Owens was about to draw a pistol, he picked up the stone and pushed him down ; and the disputed matters were whether Owens had a pistol, and if so, whether he attempted to draw it, or made any motions suggestive of such a purpose. The verdict of the }\xYy was averse to the contentions of the defendant. The only questions presented for our consideration arise on the charge of the court, and may be grouped under four heads : First, as to the evidences of intent ; second, as to what constitutes a deadly weapon ; third, as to real danger ; and fourth, as to apparent danger. It may be premised that the exceptions to this charge are taken in the careless way which prevails in the Western District of Arkansas ; but passing this and considering the charge as properly excepted to, we find in it no substantial error.^ Third. With reference to the matter of self-defence b}' reason of the presence of a real danger, the court charged that it could not be a past danger, or a danger of a future injury, but a present danger and a danger of " great injury to the person injui'ed that would maim him, or that would be permanent in its character, or that might produce death." In this we think nothing was stated incorrectly, and that there was a fair definition of what is necessary to constitute self-defence by reason of the existence of a real dang-er. o^ could before slaying his assailant that conflicts with the ruling of this court in Beard v. United States, 158 U. S. .5.50. That was the case of an assault upon the defendant upon his own premises, and it was held that the obligation to retreat was no greater than it would have been if he had been assailed in his own house. So, too, in the case of Alberty v. United States, 162 U. S. 499, the defendant found the deceased trying to obtain access to his wife's chamber through a window, in the night-time, and it was held that he might repel the attempt by force, and was under no obligation to retreat if the deceased attacked him with a knife. The general duty to retreat instead of kill- ing when attacked was not touched upon in these cases. Whart. on Homicide, § 485." — Ed. 1 The discussion of the first two questions is omitted. — Ed. 554 ACERS V. UNITED STATES. [CHAP. V. Neither, fourthly, do we find anything to condemn in the instructions in reference to self-defence based on an apparent danger. Several approved authorities are quoted from in which the doctrine is correctly stated that it is not sufficient that the defendant claims that he believed he was in dansrer, but that it is essential that there were reasonable grounds for such belief, and then the rule was summed up in this way : " Now these cases are along the same line, and they are without limit, going to show that, as far as this proposition of apparent danger is concerned, to rest upon a foundation upon which a conclusion that Is reasonable can be erected there must be some overt act being done by the party which from its character, from its nature, would give a reasonable man, situated as was the defendant, the ground to believe — reasonable ground to believe — that there was danger to his life or of deadly violence to his person, and unless that condition existed then there is no ground upon which this proposition can stand ; there is nothing to which the doctrine of apparent danger could apply." Counsel criticise the use of the words " deadly violence," as though the court meant thereby to limit the defence to such cases as showed an intention on the part of the person assaulted to take the life of the defendant, but obviously that is not a fair construction of the language, not only because danger to life is expressly named, but also because in other parts of the charge it had indicated that what was meant by those words was simply great violence. This is obvious from this language, found a little preceding the quotation : " ' When from the nature of the attack.' You look at the act being done, and you from that draw an inference as to whether there was reasonable ground to believe that there was a design upon the part of Owens in this case to destroy the life of the defendant Acers or to commit an}' great violence upon his person at the time he was struck hy the rock. ' When from the nature of the attack.' That implies not that he can act upon a state of case where there is a bare conception of fear, but that there must exist that which is either i-eally or apparently an act of violence, and from that the inference ma\- reasonably be drawn that there was deadly danger hang- ing over Acers, in this case, at that time." These are all the matters complained of. We see no error in the rulings of the court, and, therefore, the judgment is Affirmed. SECT. III.] STATE V. EVANS. 555 U STATE V. EVANS. Supreme Court of Missouri. [Reported 124 3fo. 397.] Sherwood, J.^ It was developed by the evidence that Peter Fine, the deceased, rented a farm owned by defendant's wife ; both defendant and deceased and their families living on the farm and occupying portions of the same dwelling house. The term of F'ine had about expired, and he had been informed by defendant that he wanted pos- session of the farm on the expiration of the ^-ear for which it was rented to him. This announcement displeased Fine and gave rise to alterca- tions between the parties, and threats on the part of Fine towards defendant, so much so, that several days before the homicide occurred, defendant felt it to be necessary- to take steps and secure the arrest of Fine in order to have him bound over to keep the peace. His arrest greatly enraged Fine, and he made threats of taking defendant's life unless he got off the place, etc. ; these threats, some of them, extend- ing even down to the morning of the day on which Fine was shot, the twenty-fifth of October. On the morning of that da}', having been freshly threatened, defendant for his own protection deemed it neces- sary to procure a pistol, which he did b}' riding to Boonville for that purpose, and having loaded the weapon, returned home with it in his pocket, reaching there about noon. After putting his horse up in tL»^ stable, he went to his house, and after some talk with his wife about domestic affairs, went down for some corn into the cornfield where the tragedy which forms the subject of the present prosecution, occurred. Speaking of the instructions generally, and taking them as a whole, they are such as have frequentl}" received the approval of this court. Express objection has, however, been taken to the eighth instruction couched in this language : " If you find from the evidence that the defendant armed himself with a deadly weapon and went to where the deceased was, expect- ing the deceased to assault him, and witli the intent of inflicting death or great personal injury upon the deceased, tlien he can not be justified upon the ground of self-defence, even though you should find that the deceased was about to kill him or inflict upon him some great personal injury. But the fact that he went to the field where the de- ceased was would not deprive him of the right of self-defence if he went with some other purpose and not with the expectation that a difficulty would arise, and with the intent of inflicting death or a great personal injury upon the deceased." The fact that defendant expected an attack did not abate by one jot ' Only so much of the opinion as discusses the question of self-defence is given. — ■ Ed. 556 CKEIGHTON V. COMMONWEALTH. [CHAP. V. or tittle his right to arm himself in his own proper defence, nor to go where he would, after thus arming himself, so long as he did no overt act or made no hostile demonstrations toward Fine. Defendant was where he had a right to be, the land belonged to his wife; he had a right to see that proper division was made of the crop, and to oversee such division. State r. P'ors3the, 89 Mo. 667. If the mere expectation of an assault from an adversarj'is to deprive the expectant of the right of self-defence, merely because he goes armed in the vicinity of his enemy, or goes out prepared upon the highwav where he is likel}' at an}- moment to meet him, then l^e has ai'med him- self in vain, and self-defence ceases wherever expectation begins. We do not so understand the law. The very object of arming one- self is not to destroy expectation of a threatened attack, but to be prepared for it should it unfOrtunatel}' come. Our legislature has sanctioned this view b}' making the carrying of concealed weapons non-punishable, when the accused has been threatend with great bodily harm, etc. R. S. 1889, sec. 3503. The instruction must, therefore, be ruled erroneous. '■^ CREIGHTON v. COMMONWEALTH. Court of Appeals of Kentucky. 1886. [Reported 84 Kentucky, 103.] Pryor, J.^ The case under consideration has been heretofore in this court, and the judgment of conviction reversed. The appellant was indicted, tried, and convicted of manslaughter for the killing of Ambrose Wilson. It is claimed by the accused that Wilson attempted to arrest him for a misdemeanor when he was not a peace officer, and had no authority to take charge of his person or make the arrest, and that in the un- lawful conduct of Wilson originated the altercation resulting in his death. This court held in the former opinion (83 Ky. 142) that the deceased was not a peace officer, and in attempting to make the arrest was guilty of a trespass, and that this fact should not have been ex- cluded from the consideration of tlie jury. In resisting the arrest — and this the accused had the right to do — he could not take the life of Wilson unless his own life was in danger, or to save his person from great bodih* injury. If either fact existed, or if he had reasonable grounds to believe, and did believe, that he was in imminent peril of losing his life, then, for his own protection, he had the right to take the life of the deceased. The right of protection against all forcible attacks upon the person ■' 1 Part of the opinion ouly is given. SECT. III.] CREIGHTON V. COMMONWf^ALTH. 557 belongs to every man ; but the extent to which this may go, or the manner of defence, is an important inquiry. Human life cannot be taken unless to protect the life of another, or i)revent the infliction of some great bodily injur}', and tlie degree of force to be used must be determined by the character of the attack made. ''Although a man will not be justified, tlien, if lie kill in defence against an illegal arrest of an ordinary character, yet the law sets such a high value upon the libert}' of the citizen that an attempt to ai'rest him unlawfully is esteemed a great provocation, such as will reduce a killing in the resistance of such an arrest to manslaughter." Commonwealth v. Carey, 12 Cush. 24G ; Roberts r. State, 14 Mo. 138 ; 1 Hale's Pleas of the Crown, 457 ; note to Horrigan & Thompson's Cases on Self- Defence, p. 816. • Bishop says : " The attempt to take away one's liberty is not such an aggression as may be resisted to the death. Nothing short of an endeavor to destroy life will justify the taking of life, is a doctrine that prevails in such a case." 1 Bishop's Crim. Law, § 868. At first impression it would seem that in the attempt to deprive one wrongfully of his personal liberty, the parly assaulted should be per- mitted to use all the force necessary to release himself from the unlawful arrest, or to prevent the imprisonment ; /"or life being valueless xoitliout liberty^ the modes of defence for the preservation of human life should be allowed for the maintenance of human liberty. Mr. Bishop says: "The reason why a man ma}- not oppose an attempt on his liberty b}' the same extreme measures permissible in an attempt on iiis life, ma}' be because liberty can be secured by a resort to the laws." 1 Bishop's Crim. Law, § 868. There are cases in which the party subjected to the unlawful arrest ma}' resist, even to taking the life of the wrong-doer. Where the attempt, says Mr. Bishop, is to convey one by force beyond the reach of law, or to carry him out of the country, in such extreme cases the party would be justified in resisting to the death of his adversary. In the present case the court below told the jury " that the arrest of the accused was unlawful, and tliat the latter had the right to resist the arrest by the use of such force, but only such force, as was neces- sary, or seemed to him (the defendant), in the exercise of a reasonable judgment, to be necessary to repel the force used by AVilson in attempt- ing to arrest him ; and if the jury believe from the evidence that the defendant, at the time he shot and killed Wilson, believed, and had reasonable grounds to believe, that he was then and there in immediate danger of losing his own life, or of great bodily harm at the hands of said Wilson, and that to shoot said Wilson was necessary, or seemed to the defendant, in the exercise of a reasonable judgment, to be neces- sary, to avert the danger, real or to him apparent, as before stated, the jury should find him not guilty," Learned counsel for the defence, in response to the argument by the attorney for the State, insisted that his client had the right to use such 558 STATE V. SHEEMAN. [CHAP. V. force, and no more, as was necessary to resist the arrest and prevent an unlawful imprisonment, and that the danger to life or the fear o;f great bodil}' harm should iiave been eliminated from the instruction. However persuasive his argument, and conceding that any other arrest and imprisonment than that which is in accordance with law and neces- sary' for tlie ends of public justice is inconsistent with civil liberty, still the enjoyment of the absolute right of personal liljert}- cannot be asserted by taking the lives of those restraining its exercise, unless the attempt to prevent its enjoyment endangers the life of the citizen, or subjects him to great bodily harm. The law has merely said to the citizen that, although 3-our liberty has been restrained, you cannot deprive the aggressor of his life in order to regain it, unless you are in danger of losing 3'our own life. Such was the instruction given by the court below, and the accused having been found guilty of manslaughter only, we perceive no reason for disturbing the judgment, and the same is now affirmed. STATE V. SHERMAN. Supreme Court of Rhode Island. 1889. [Reported 16 Rhode Island, 631.] DuRFEE, C. J.^ On trial in the Court of Common Pleas the com- plainant testified that, seeing the defendants tearing down the cause- wa}', he ran to where said .John P. Sherman was at work, and put his foot on a stone which said John P. was prying up with a crowbar; that said .John P. raised the crowbar us if to strike him, whereupon he seized it in self-defence, and some one, he knew not who, knocked him down, and that said .John P, twice tlirew him from the causeway into the water. His testimon\' was corroborated by other witnesses. On the other hand, said -John P. testified that the complainant rushed down and seized him, that he never either struck or struck at him, but only pushed him away, using no more force than was necessary for self-protection, as the complainant repeatedly attacked him. Other witnesses corroborated him. He also testified that the open water at the end of the causeway was too shallow for him to pass without get- ting out of his boat and dragging it. After the case had been argued to the jm-y, he asked the court to instruct the jur}' as follows, to wit : " That a man in a public place, if attacked, ma}- resist with his natural weapons, using no more force than is necessar}', without retreating." The court refused, but did instruct them that in such a case a man must retreat, if he can safely, and that the defendant did not testify that there was anything to prevent his retreating. The defendant excepted 1 Part of the opinion only is given. SECT. III.] STATE V. SHERMAN. 559 to both the refusal and the instruction. The bill of exceptions sets forth that the complainant's counsel stated, in his argument to the jury, that he did not claim for the complainant the right to use any force to protect the causewa}', or an}- force against the defendant, ex- cept such as he might lawfulh- use in an}' pubUc place. We think the court below erred. Generally a person wrongfully assailed cannot justify the killing of liis assailant in mere self-defence, if he can safely avoid it by retreating. Retreat is not always obliga- tory, even to avoid killing ; for if attack be made with deadlv weapons, or with murderous or felonious intent, the assailed may stand his ground, and if need be kill his assailant. But there is no question of kiUing here, and we know of no case which holds that retreat is obli- gator}- simpl}' to avoid a conflict. Where there is no homicide the rule generally laid down is, that the assaulted person may defend him- self, opposing force to force, using so much force as is necessary for his protection, and can be held to answer onlv for exceeding such degree. Mr. Bishop, in his work on Criminal Law, § 849, says : '■'• The assailed person is not permitted to stand and kill his adversary, if there is a way of escape open to him, while yet he may repel force by force, and, within limits diflfering with the facts of the case, give back blow for blow." See, also, 1 Wharton's Criminal Law, § *J9 ; Stephen's Digest Criminal Law, art, 200 ; May's Criminal Law, Stu- dents' Series, § 62. Mr. May's language is: "There seems to be no Qecessity for retreating or endeavoring to escape from the assailant before resorting to any means of self-defence short of those which threaten the assailant's life." In Commonwealth v. Drum, 58 Pa. 1, 21, 22, where the defendant, who was indicted for murder, set up that he acted in self-defence, the court in charging the jury used the following language : "The right to stand in self-defence without flee- ing has been strongly asserted by the defence. It is certainly true tliat ever}' citizen may rightfull}' traverse the street, or may stand in all proper places, and need not flee from every one who chooses to assail him. Without this our liberties would be worthless. But the law does not apply this right to homicide." There are cases, however, which manifest a disposition to apply the same rule generally. Run- yan v. The State, 57 Ind. 80 ; Erwin v. State, 29 Ohio St. 186. In Gallagher r. The State^ 3 Minn. 270, the defendant was com- plained of for assault and battery, and set up in justification that he acted in self-defence, the complainant having stepped forward with his cane raised, as if about to strike. The lower court, on trial, ruled as follows : "Where a person is approached by another with a cane raised in a hostile manner, the former is not justified in striking un- necessarily, but is bound to retreat reasonably before striking." On error the Supreme Court held the ruling to be erroneous. " Such is not the law," say the court; " but the party thus assaulted may strike, or use a sufficient degree of force to prevent the intended blow, with- out retreating at all." The case is exactly in point. The excei)tion is therefore sustained, and the cause will be remitted for a new trial. 500 UHLEIN V. CROMACK. [CHAP. V. UHLEIN V. CROMACK. Supreme Judicial Court of Massachusetts, 1872. [Reported 109 Mass. 273.] Tort for killing the plaintiff's dog.' The defendant contended that he had a right to kill the dog, on the ground that it was a public nuisance, because it was a dangerous animal and accustomed to bite those who came near it; and that the plaintiff did not properly confine it; and e\ndence was offered on this point, and that the dog had pre^^ously bitten two persons, one of whom, while going upon the plaintift''s premises, over a fence in the rear of the kennel, to do some work for the plaintiff's family, came past the dog, and the other of whom was attacked some months before, on the public highway. The defendant also introduced evidence tending to show that the locality in which the plaintiff' lived was quiet, and compara- tively free from persons likely to trespass on the plaintiff's premises. The judge rules that these facts alone, if true, would not justify the defendant in killing the dog as he did, the statute specifying the method by which a dangerous dog might be killed, and the defendant not claiming to have acted under any authority conferred on him by the statute; and so instructed the jury, to wliich the defendant excepted. The jury, however, when they returned their verdict, at the request of the judge returned special findings, that the dog was a dangerous ani- mal and accustomed to bite those who came near it, but that it was chained and confined so that all persons properly on the plaintiff's premises were in no danger from it. Chapman, C. J. By the common law, a dog is property, for an injury to which an action will lie. Wright v. Ramscot, 1 Saund. 84;, 2 Bl. Com., 393. In this commonwealth the keeping of dogs is regu- lated by the Gen. Sts. c. 88, §§ 52 d srq., and the St. of 1867, c. 130. The plaintiff kept his dog restrained in conformity wnth the statutes. Although the dog was a dangerous animal, and accustomed to bite those who came near it, yet, as it was confined, so that all persons properly on the plaintiff's premises were in no danger from it, and was otherwise kept according to law, and the defendant had not been attacked by it, the jury were properly instructed that the act of the defendant was not justifiable. They were also properly instructed that the plaintiff had a right thus to keep it for the protection of his family .^ Exceptions overruled. ^ Part of the statement of facts is omitted. — Ed. 2 See McChesney v. Wilson, 132 Mich. 252. — Ed. SECT. III.] BARFOOT V. KEYNOLDS. 561 BARFOOT V. REYNOLDS. King's Bench. [Reported 2 Str. 953.] Trespass, assault, and battery against Reynolds and Westwood. Reynolds pleaded son assault: and Westwood pleaded that he was servant to Reynolds, the other defendant, and that the plaintiff ha\ang assaulted his master in his presence, he in defense of his master struck the plaintiff. And on demurrer the plea was held ill, for the assault on the master might be over, and the servant cannot strike by way of revenge, but in order to prevent an injury; and the right way of pleading is, that the plaintiff would have beat the master, if the ser- vant had* not interposed, prout ei bene licuit. The plaintiff had judg- ment. 1 East P. C. 289, 290. In all cases where a felonious attack is made, a servant or any other person present may lawfully interpose to prevent the mischief intended ; and if death ensue, the party so inter- posing will he justified. TIuis, in the instances of arson or burglary, a lodger may lawfully kill the assailant in the same manner as the owner himself might do. . . . But the case of third persons interfer- ing in mutual combats or sudden affrays, except as mediators to pre- serve the peace, requires greater caution. ... If A., a stranger, take part on a sudden with either B. or C. who are engaged together in an affray, wherein both are in the eye of the law blamable, although perhaps in different degrees ; and afterwards kill either, although in the necessary defence of the other, it cannot be less than manslaughter ; for he who thus officiously interferes without any previous knowledge of the merits of the dispute, not to preserve the peace but to partake in the broil, is himself highly culpable, — having less provocation to heat his blood than probably the parties themselves had who originally engaged in the disi)ute.^ 1 For the analogous case of a stranger interfering to rescue one who having been illegally arrested had nevertheless submitted, see Rex v. Tooley, 2 Ld. Ray. 1296; Hugget's Case, Kel. 59; Adey's Case, 1 Leach, 245; Steph. Dig. Cr. L. 372. — Ed. 562 REGINA V. ROSE. [CHAP. V. REGINA y. ROSE. Oxford Assizes. 1884. [Reported 15 Cox C. C. 540] The prisoner was indicted for the wilful murder of his father, John William Rose, at Witno}', on the 27th da}' of September. The material facts proved were as follows : The prisoner, a weakly yonng man of about twenty-two 3'ears of age, was at the time of the alleged murder living with his father, mother, and sisters at Witney. The father, who was a very powerful man, had recently taken to exces- sive drinking, and while in a state of intoxication was possessed with the idea that his wife was unfaithful to him. He had on more than one occasion threatened to take away her life, and so firmly impressed was she with the idea that these were no idle threats that the- prisoner's mother had frequenth' concealed everything in the house which could be used as a weapon. On the night in question the family retired to their bedrooms, which were situated adjoining to one another, about nine o'clock. The deceased man appears to have immediately commenced abusing and illtreating his wife, accusing her of unfaithfulness to him and threaten- ing to murder her. -On several occasions she retired for safet}' to her daughter's room ; on the last occasion her husband pursued her, and seizing her dragged her towards tlie top of the stairs, threatening to push her down. He then said he would cut her throat, left her saying he was going to fetch the knife which all the family seem to have known was in his room, and then rushing back seized his wife, and forced her up against the balusters, holding her in such a position that the daughters seem to have thought he was actually cutting her throat. The daughters and mother shouted ^ Murder ! " and the prisoner, run- ning out of his room, found his father and mother in the position described. No evidence was given that the deceased man had any knife in his hand, and all the witnesses said that they did not see then or afterwards find his knife. The prisoner fired one shot (according to his own account) to frighten his father, but no trace of any bullet could be found, and immediately after he fired another shot which, striking his father in the eye, lodged in the brain and caused his death in about twelve hours. On his arrest the prisoner said, " Father was murdering Mother. I shot on one side to frighten him ; he would not leave her, so I shot him." In cross-examination the deceased man's employer said that the pris- oner's father was the strongest man he had ever seen, and the prisoner would not have had the slightest chance in a hand-to-hand encounter with him. SECT. III.] FLINT V. BRUCE. 563 The defence set up was that the case was one of excusable homicide. His Lordship [Lopp:s, J.] in the course of his summing up said : Homicide is excusable if a person takes away the life of another in defending himself, if the fatal blow which takes away life is necessar}' for his preservation. The law sa3s not only in self-defence such as I have described may homicide be excusable, but also it may be excusable if the fatal blow inflicted was necessary for the preservation of life. In the case of parent and child, if the parent has reason to believe that the life of a child is in imminent danger b}' reason of an assault by anothei- person and that the only possible, fair, and reasonable means of saving the child's life is b}^ doing something which M'ill cause the death of that person, the law excuses that act. It is the same of a child with regard to a parent ; it is the same in the case of husband and wife. Therefore I propose to la}- the law before you in this form : If you think, having regard to the evidence and drawing fair and proper inferences from it, that the prisoner at the bar acted without vindictive feeling towards his father when he fired the shot, if you think tliat at the time he fired that shot he honestly believed and had reasonable grounds for the belief that his mother's life was in imminent peril, and that the fatal shot which he fired was absolutely necessary for the preservation of her life, then he ought to be excused, and the law will excuse him from the conse- quences of the homicide. If, however, on the other hand, you cannot come to that conclusion, if you think, and think without any reasonable doubt, that it is not a fair inference to be drawn from the evidence, but are clearly of opinion that he acted vindictivel}' and had not such a belief as I have described to 3'ou, or had not reasonable grounds for such a belief, then you must find him guilty of murder. Verdict. Not guilty} FLINT V. BRUCE. Supreme Judicial Court of Maine, 1878. [Reported 68 Me. 183.] Appleton, C. J.^ This is an action of trespass for an assault and battery upon the plaintiff by the defendant. The evidence shows an affray between the defendant and A. L. Soule, the father of the plaintiff. The plaintiff interfered for the pro- tection of her father, and to prevent the further continuance of the affray. A child has an unquestioned right to intervene for the protec- 1 See Campbell v. Com., 88 Ky. 402. As to right of a U. S. marshal to defend a judge, see In re Neagle, L35 U. S. 1. — Ed. " Part of the opinion only is printed. — Ed. 564 TOMPKINS V. KNUT. [OHAP. V. tion of a father upon whom an assault is being committed. The defendant committed the assault upon the plaintiff while acting in de- fense of her father. For this assault and the damages resulting there- from the defendant is responsible to this plaintiff. . . . TOMPKINS V. KNUT. Circuit Court of the United States, 1899. [Reported 94 Fed. 956.] Evans, J. In the case of Oscanyan v. Arms Co., 103 U. S. 261, the trial court, after hearing the opening statement by plaintiff's counsel to the jury as to what facts were expected to be proved to support the plaintiff's case, and after verifying the accuracy of the statement, sus- tained a motion on behalf of defendant on that presentation of the case alone to instruct the jury to find a verdict against the plaintiff upon the ground that, if those statements were true, the contract sued upon was against public policy, and void. Upon a writ of error to the Supreme Court the proceeding was approved, and the judgment was affirmed. The plaintiff in this action for assault and battery and tres- pass has testified under oath, and stated the facts upon which he relies in support of his action, and the court is called upon to determine whether, assuming all the plaintiff" says to be true, he is entitled to a verdict against the only defendant now remaining in the case, since the death of his wife, the former co-defendant, has abated the action as to her. As the plaintiff' was a participant in the entire transaction out of which his action arose, and completely states his case, it is admissible and proper, I think, to bring this question up now, because it would not be competent for him by other witnesses to contradict what he says; and while, on this motion, his statements must be accepted as true in his behalf, they may also, for the reason indicated, be taken as true against him. It appears from his testimony that, ha\ing been employed by the defendant and his wife and her brother, the owners of the farms described in the pleadings, up to January 1, 1898, as a manager and overseer, his contract was soon afterwards renewed for the year 1898; that part of the agreement was that the plaintiff', besides his monthly wages, was to have the use of the house on the premises for occupation by himself and family, and also pro\asions for the support of them all; that on the 24th of January, 1898 (the defendant and wife haxing come to the farm on invitation of the plaintiff' in the preceding December, and having remained there, and all parties having been SECT. III.] TOMPKINS V. KNUT. 565 entirely friendly, up to January 24th), there was some dispute as to whether plaintiff was any longer wanted, or would be permitted to remain, as the employee of defendant and his wife ; that on the succeed- ing day (January 25th), while the defendant was outside the house to the plaintiff's knowledge, who was also outside, the plaintiff was hastily informed that Mrs. Knut, or someone in the inside of the house, was remoA'ing the furniture, and putting his family out, whereupon the plaintiff hurriedly ran into the house, seized a Winchester repeating rifle, and, upon going into the room where the others were, among other things, said, " If they touch any more of my furniture I will kill every son of bitch who does it"; that the rifle was then cocked, and leveled, in the hands of the plaintiff, who also had upon him a revolver, and probably a dirk; that Mrs. Knut, while appealing to him to desist, took hold of the rifle, and while she had hold of it it was discharged; that the defendant also went into the room soon after plaintiff did, and there found his wife struggling with plaintiff, who was armed as indi- cated, and endeavoring in some way to control the direction of the pointing of the gun; that under these circumstances the defendant, with some persons present (none of whom except the plaintiff appear in any way to have been armed), overpowered plaintiff, bound his hands behind him, took from him his gun and pistol, removed him to the stable lot, and soon afterwards delivered him to a peace officer (a deputy sheriff) who happened to be at the house on other business, and that the plaintiff was then unbound and removed by the officer, accom- panied by the defendant and one other person, to Owensboro, the county seat. It is claimed that a kodak picture was taken of some part of the scene, but it does not appear that defendant was concerned with that phase of the case, but that, if it was done by anybody, it was by his wife, now dead. It seems to the court that all parties were law- fully on the premises at the time, and that the whole case must turn, not upon the provisions of the contract, nor anybody's rights there- under, but upon the facts immediately connected with the affray on January 25th. If this be correct, then the court, upon the plaintiff's own showing, is clearly of opinion that the defendant had reasonable grounds for believing, when he appeared upon the scene, that his wife was apparently in great jeopardy and danger of her life in her struggle with a man so thoroughly armed as was the plaintiff; that if the de- fendant had then been armed, and had taken the plaintiff's life, the law would have excused him; that if he might, in the then apparently necessary defense of his wife, have taken plaintiff's life, he was cer- tainly excusable in doing for her protection, and probal)ly his own, the lesser things of binding and disarming the plaintiff, so as to prevent further mischief until he could deliver plaintiff to a peace officer, pre- cisely as he might be justified in binding a madman or a dangerous beast, who had as ample power to do mischief as this heavily-armed man had upon this occasion ; and that it does not appear that defendant 566 WOOD V. STATE. [CHAI'. V. used more force than was apparently necessary to prevent great bodily harm to his wife, and probably others. Whether plaintiff had any right to enforce his claims to the possession of defendant's premises by force of arms may well admit of doubt, as he was only defendant's employee, and not his tenant in the ordinary sense; and, if plaintiff liad not such right, then he was a gross \'iolator of the law in seeking to remedy his supposed wrongs in so \'iolent a manner, and should take the consequences without complaint. Indeed, all things considered, the court is inclined to think that the plaintiff got off quite as well as he could have reasonably expected. Upon the facts stated under oath by the plaintiff, if the jury were to find a verdict in his favor the court would not permit it to stand. F'or the reasons thus briefly stated, the court will sustain the motion, and instruct the jury to find for the defendant. WOOD V. STATE. Supreme Court of Alabama, 1900. [Reported 128 Ala. 27.] Appeal from the Criminal Court of Jefferson. Tried before the Hon. Samuel E. Greene. Felix Wood, the appellant, and Marion Wood, together A\ath four others, were jointly indicted for an assault with intent to murder one John A. Brooks. The appellant was convicted of the offense charged, and sentenced to the penitentiary for a term of ten years. On the trial of the cause, it was shown that John A. Brooks, the person alleged to have been assaulted, was the conductor of a street car, which ran from Birmingham to East Lake, and that on the day before the offense charged was committed, John A. Brooks and Marion W'ood, brother of the defendant Felix Wood, had a difficulty; and, on the day of the assault complained of, Marion Wood boarded the car upon which Brooks was conductor on Twenty-second Street in Birmingham, and that Felix Wood and the other person jointly indicted wath him, boarded the car on Twenty-fourth Street, and they all went to East Lake on said car; that Felix Wood, when he boarded the car, carried a Winchester rifle with him, in a canvas case; that upon reaching East Lake, the defendant and the persons with him alighted from the car; that Marion Wood went up to Brooks, and, after a few words between them. Brooks and Marion Wood drew their pistols and began firing at each other. At this time defendant, Felix Wood, who SECT. III.] WOOD V. STATE. 567 was standing some twenty-five or thirty feet away, and who had taken his rifle from its cover during the conversation between Marion Wood and Brooks, fired upon said Brooks with the rifle. During the examination of John A. Brooks, as a witness for the State, he was asked the following question : " What did Marion Wood say to you, when he came to the rear of the car at East Lake?" The defendant objected to this question upon the ground that it called for irrelevant and immaterial evidence. The court overruled the objec- tion, and defendant duly excepted. In answer to the question the witness stated that as Marion Wood came up to him he said to the wit- ness: " I came to see 3^ou about what you did to me yesterday." Wit- ness then further testified that at that time Marion Wood had his hand in his coat pocket, and that the witness stated to him : " If you want to talk to me, take your hand out of your pocket"; and that he saw what appeared to be and was a pistol in the hands of Marion Wood; that said Wood spoke in an ordinary tone of voice, and that as Felix Wood, the defendant, was twenty-five or thirty feet away, the witness could not say whether defendant heard what passed between them or not. The defendant then moved the court to exclude statement made by Marion Wood, as witness, upon the grounds that it was hearsay evi- dence, and irrelevant and immaterial eiadence. The court overruled the motion, and defendant duly excepted. Upon cross-examination of witness (Brooks) the defendant asked him several questions seeking to disclose the particulars of the previous difficulty between said Brooks and Marion Wood. To each of these questions the State objected; the court sustained the objection, and the defendants separately excepted to each of such rulings. The testimony for the defendant tended to show that John A. Brooks fired upon Marion Wood without provocation; that the de- fendant, who was the brother of Marion Wood, but who knew nothing of the particulars of the controversy between him and said Brooks, fired his rifle when Brooks shot at his brother, but that he did not aim the rifle at Brooks and did not shoot until Brooks had quit shooting at his brother and shot at the defendant twice. The defendant testified that the first thing he saw after his brother, Marion Wood, went up to Brooks, Brooks had pulled his pistol and was firing at his brother, who, at that time, had not made any demjon- stration towards Brooka; and that he, the defendant, did not hear any of the conversation between Brooks and his brother. Upon the introduction of all the evidence the defendant requested the court to give the jury the following charges and the defendant severally excepted to the refusal to give each of them as asked : "(1) If the jury believe from the evidence that the defendant, seeing his brother Marion Wood in a desperate encounter with Brooks, shot at Brooks for the purpose of defending his brother, without knowing the origin of the difficulty, the jury may consider these facts 568 WOOD V. STATE. [CHAP. V. in determining whether the defendant acted maliciously, premedita- tedly, and deliberately or justifiably." " (2) If the jury believe all the evidence they cannot convict the defendant of an assault with intent to murder." " (3) The court charges the jury that defendant was not bound to inquire into the origin of the difficulty between his brother and Brooks, but had the right to act from appearances." " (4) The court charges the jury that defendant would not be guilty as charged in the indictment if when he fired his brother was apparently in danger of death or great bodily harm, at the hands of Brooks." " (5) If the jury have a reasonable doubt from the evidence of any one of the fol- lowing propositions being true, they must acquit him of an assault with intent to murder: 1st. That the defendant acted maliciously. 2d. That he acted deliberately. 3d. That he acted with premeditation." McClell.\n, C. J. One who intervenes in a pending difficulty in behalf of a brother and takes the life of the other original combatant stands in the shoes of the brother in respect of fault in bringing on the difficulty, and he cannot defend upon the ground that his brother was in imminent and deadly peril and could not retreat, unless the latter could have defended upon that ground had he killed his assailant. Hence in such cases it is a material inquiry whether defendant's brother was at fault in bringing on the difficulty with the deceased, and the same doctrine obtains, of course, where the charge is assault with intent to murder; and as bearing upon this inquiry presented in the case at bar the court properly admitted the testimony of Brooks to the effect that Marion Wood approached him with his hand in his pocket and apparently on a pistol and said: "I came to see you about what you did to me yesterday." It is of no consequence that Felix Wood, the defendant, did not hear this remark and was not, when he intervened, aware of any fault on the part of Marion in bringing on the difficulty: He entered into the combat at his own peril. Gibson r. State, 91 Ala. 64 ; Whatley v. State, 91 Ala. 108; Karr v. State, 106 Ala. 1. Upon this principle, as well as for other considerations, charges 1, 3, and 4 were properly refused to the defendant. Moreover, the e\ndence referred to was clearly admissible upon the further grounds, first, that it was of the res gestae of the main fact; and, second, there was other e\idence from which the jury might have found that the difficulty was the result of a conspiracy between Marion Wood, the defendant, and others to assault and kill Brooks. The trial court did not err in excluding testimony going to the par- ticulars of the pre\'ious difficulty between Brooks and Marion Wood. Stewart v. State, 78 Ala. 436. Charge 5 was properly refused. It is not essential to a conviction of an assault with intent to murder that the defendant acted deliber- ately and with premeditation. Meredith u. State, 60 Ala. 441; Law- rence V. State, 84 Ala. 425; Welch v. State, 124 Ala. 41; Gilmore v. State, 126 Ala. 21. SECT. III.] PEOPLE r. COOK. 569 The affirmative charge was of course properly refused to defendant, there being evidence tending to prove every averment of the indict- ment and the plea being "not guilty." Affirmed. PEOPLE V. COOK. Supreme Court of Michigan. 1878. [Reported 39 Michigan, 236.] Marston, J.^ The respondent was tried upon an information charg- ing him with having committed tlie crime of ranrder, and was convicted of manslaughter. The case conies liere upon exceptions before sen- tence. Tlie shooting of the deceased by respondent was not denied on the trial. Tlie defence relied on was justifiable liomicide, committed in order to prevent the abduction and seduction of respondent's sister by the deceased. There is not a scintilla of evidence in the case to establish this de- fence, unless the fact that he had reason to believe tliat deceased was about to seduce and debauch his sister would be a justification. It was said that the testimony given on the trial showed the I'cputa- tion of the deceased for chastit_y was bad, of which fact the respondent had knowledge ; that deceased had been arrested for the seduction of a Miss Briggs ; that he had publicly stated in respondent's presence and hearing the manner in which he had seduced her ; that while under such arrest he had stated that he wanted to seduce just one more girl, Sarah Cook, but this fact had not been brought to respondent's knowl- edge ; that the night before the shooting deceased and Sarah Cook had been out together quite late ; that on the morning of the shooting, respondent's sister, Sarah Cook, left the breakfast table and went over to the house of deceased ; that she shortly afterwards returned, took her wearing aoparel, and announced that she was going off with Bate}', bade the famil}' good-by, and said they might never see her again. The defence claimed the farther fact to be that Sarah Cook at that time was under the influence of drugs, administered to her by deceased, in order to enable him to accom|)Hsh his purpose, and that the shooting was believed b}- the respondent to be necessary in order to prevent such a result. Blackstone says the English law justifies a woman killing one who attempts to ravish her, and so too the husband or father may justify * Part of the opinion only is given. 570 STATE V. MELTON. [CHAP. V. o killing a man who attempts a rape upon his wife or daughter ; but not if he takes them in adulteiy by consent, for the one is forcible and felo- nious but not the other. The principle, he says, which runs through all laws seems to be this ; that where a crime in itself cai)ital is endeav- ored to be committed by Ibrce, it is lawful to repel that force by the death of the party atten)pting. It is not clain)ed that any direct force was attempted in this case, but that the felony intended was to be accomplished by tlie assistance of drugs administered or to be admin- istered, and that w'lierc the power of resistance is thus overcome, and advantage thereof talvcn to violate her person, the act would be rape, and for such purpose the law would conclusively presume that sufficient force was used, at the time intercourse took place, to so characterize the act. The present case, however, falls short of coming within the principles which would justify the taking of life. The utmost that can here be said is that the deceased had used and was likely to use fraudulent means, by administering drugs, to excite the passions, or overcome the resistance he otherwise would have been sure to encounter, in order to accomplish his purpose. 80 far as he had then gone, even conceding all that is claimed, fraudulent and not forcible means had been resorted to, which would not create that necessity for immediate action on the part of the accused, by the taking of life, to prevent an attempted forcible felony. Ample time and opportunity existed to en- able the accused to resort to other available and adequate means to prevent the anticipated injury. The evil threatened could have been prevented by other means within the reach and power of the accused. There was no such immediate danger, nor would the facts warrant the apprehension of such immediate danger as would justify a resort to the Cleans adopted. STATE V. MELTON. Supreme Court of Missouri, 1891. [Reported 102 Mo. 683.] MACFARtANE, J. Defendant was indicted under section 1263, Rev. St. 1879, for an assault with intent to kill. Evidence was offered tend- ing to prove such assault, and by means thereof the assaulted party was seriously wounded on the head. Defendant w^as convicted, and ap- pealed to this court. ^ . . . Defendant asked the following instruction: " (1) The court instructs the jury that, although they may believe from the evidence that the defendant struck and wounded Swicegood, yet if it is further shown by the e\idence that such striking and wounding were done for the pur- 1 Part of the opinion is omitted. — Ed. SECT. III.] ' ANONYMOUS. 571 pose of preventing the commission of a felony upon Trvin Melton, his brother, or preventing said Swicegood from doing said Irvin Melton some great bodily harm, they will return a verdict of not guilty" — which the court amended by adding thereto the following: "Unless you further find from the exadence that the said Ir^'in Melton sought or brought on the difficulty with said Swicegood." This amendment is complained of. There was e\'idence tending to prove that Ir\nn Melton, who was a brother of defendant, both sought and brought on the difficulty; in fact, the evidence tended strongly tc prove that the two brothers went to the entertainment with the intention of creating a difficulty \\'ith Swicegood. The right to defend his brother was no greater than the brother's right to defend himself. Counsel, in sup- port of his position that the court improperly amended the instruction, cites the recent authorities of this State, commencing \^^th Partlow's Case, 90 Mo. 608, 4 S. W. Rep. 14, in which the question of self-defense in murder cases have been discussed, and insists that under these au- thorities he had a right to the instructions as asked. According to this contention, a party could provoke and bring on a difficulty, and, if afterwards hard pressed, could wound and injure his antagonist, and go free of punishment, on the ground of self-defense. The entire scope and meaning of these authorities are misapprehended. The cases cited were all trials for murder, and it was not held in these cases that self-defense, under the circumstances, acquitted the defendant of all crime, but simply cut down his offense from a higher to a lower de- gree of homicide. In the Gilmore Case, 95 Mo. 560, 8 S. W. Rep. 359, 912, the question is made so clear that any further consideration of it is useless. These cases have no application to assaults merely. The amendment of the instruction was proper. For the error in giving the first instruction the judgment is reversed and cause remanded. All concur. ANONYMOUS. King's Bench. 1506. [Reported Year Book, 21 //. VI L .lO, pi. 50.] FiNEUX, C. J. If one is in his house, and liears that such a one will come to his house to beat liini. he may well assemble folk of his friends and neighbors to help him, and aid in the safeguard of his person ; but if one were threatened that if he should come to such a market, or into such a place, he should there be beaten, in that case he could not assem- ble persons to help him go there in personal safety, for he need not go there, and he may have a remed}' b}- surety of the peace. ^ But a man's 1 See Succession of Irwin, 12 La. Ann. 676. — Ed. r.72 avild's case. " [chap. v. house is his castle and his defence, and where he has a peculiar right to stay, &c. And all the justices agreed that a servant may beat one in defence of his master. Tkemaine J., said that a servant may kill one in defence of liis master's life, if he cannot otlierwise save it. T. 14. H. 7. Tr. 246. COOPER'S CASE. King's Bench. 1639. [Reported Cruhe Car. 544.] Cooper being indicted in tlie county of Surrey of the murder of W. L. in Southwark witli a spit, he pleaded not guilty ; and upon his arraign- ment it appeared that tlie said Cooper, being a prisoner in the King's Bench, and lying in the house of one Anne Carricke, who kept a tavern in the Rules, tiie said W. L. at one of the clock in the night, assaulted the said house, and offered to break open the door, and brake a staple thereof, and swore he would enter the house and slit the nose of the said Anne Carricke, because she was a baw^d, and kept a bawdy-house." And the said Cooper dissuading him from those courses, and reprehend- ing him, he swore, that if he could enter lie would cut the said Cooper's throat ; and he brake a window in tlic lower room of the house, and thrust his rapier in at the window against the said Cooper, who in defence of the house and himself thrust the said W. L. into the eye, of which stroke he died. The question was, whether this were within the statute of 24 Hen'. 8, c. 5. The Court w^as of opinion, that if it were true he brake the house with an intent to commit burglary, or to kill any therein, and a party within the house (although he be not the master, but a lodger or sojourner therein) kill him who made the assault and intended mischief to an}' in it, tliat it is not felony, but excusable by the said statute of 24 Hen. 8, c. 5, which was made in atHrmance of the common law ; wherefore the jur}' were appointed to consider of the circumstances of the fact ; and they, being a substantial jurj^ of Surrey, found the said Cooper not guilty upon this indictment ; whereupon he was discharged. WILD'S CASE. Liverpool Assizes. 1837. [lieporteil 2 Leirin, 214.] The prisoner was indicted for manslaugiiter. It ai)[)earcd tliat the deceased lind entered the pi'isoner's house in his absence. Tlie j)risoner on retuniiug home foiuul liim there, and desired SECT. III.] STAIE V. PATTERSOix. o73 him to withdraw, but he refused to go. Upon this words arose between them, and the prisoner, becoming excited, proceeded to use force, and by a kick which he gave to the deceased, caused an injury which pro- duced his death. Alderson, B. a kick is not a justifiable mode of turning a man out of 30ur house, though he be a trespasser. If a person becomes excited, and being so excited gives to another a kick, it is an unjustifiable act. If the deceased woukl not have died but for the injury lie received, the prisoner having unlawfully caused that injury, he is guilty of man- slaughter. STATE V. PATTERSON. Supreme Court of Vermont. 1878. [Re]>orted 45 Vermont, 308.] Barrett, J.^ It is not deemed needful for the purposes of this case, with reference to its future prosecution, to discuss specifically any other subject, except that of the dwelling-house being one's castle, as bearing upon his right to kill or to use deadly weapons in defence of it. This is presented in tlie third request in behalf of the respondent, which is, in the language used b}- Holroyd, J., in charging the jury in Meade's Case, iyifra, viz. : "The making of an attack upon a dwelling, and espe- cialh- in the night, the law regards as equivalent to an assault on a man's person, for a man's house is his castle." The purpose of this request seems to have been to justifv the killing with the gun, as a lawful mode and means of defending the castle, as well as the person within it. Looking to the state of the evidence, it is not altogether obvious what there was in the case to warrant its being claimed that the respondent killed Flanders as a means of defending himself or his castle. It was claimed in behalf of the prosecution, and the evidence given in that behalf showed that the gun was not fired at Flanders as a measure of force, to repel and prevent him from breaking into the house. Moreover, in the exceptions it is said : "The respondent testi- fied that he fired to the ground, and the object in firing was, not to hit them, but to scare them away." The respondent seems not to have regarded it a case, or a conjuncture, in which it was needful or expedi- ent to use a deadh' weapon as a means of forceful resistance to meet and repel an assault on his house — whatever such assault in fact was — or to protect himself from anj- threatened or feared assault on his person. The gun, loaded with powder alone, would have served all the needs of the occasion, and of the exigenc}' which the respondent supposed then to exist and to press upon him. Nevertheless, the point was made by said third request. It was indi- * Part of the opinion, not relating to tlic question of justification, -las licen omitted. .)/ STATE V. PATTERSON. ^ [CHAP. V. cated in the charge that the case State v. Hooker, 17 Vt. 670, was invoked in support of it, and it is cited in this court for the same pur- pose. That case professes to decide oiil}- the question involved in and presented by it, viz., whether it was criminal under the statute for the respondent to resist an otHcer in the service of civil process within his dwelling-house, such officer having unlawfully l)roken into the house for the purpose of making such service. The language of the opinion is to be interpreted with reference to the case and the question. That case in no respect involved the subject of the use of a deadh' weapon with fatal effect in defence of the castle ; and it is not to be supposed that the judge who drew up the opinion was undertaking to discuss or propound the law of that subject. To come, then, to the subject as it is involved in this case under said third request. In Foster's Crown Law, 319, it is said, *'The books sa}' that a man's house is his castle for safet}' and repose to himself and family." In Cook's Case, Cro. Car. 537, an officer, with a capias ad satisfaciendnm, went with other officers, for the purpose of executing the same, to the dwelling-house of the respondent, and, finding him within, demanded of him to open the door and sufi'er them to enter. He commanded them to depart, telling them they should not enter. Thereupon, they broke a window, and afterwards went to the door of the house and offered to force it open, and broke one of the hinges; whereupon Cook discharged his musket at the deceased and hit- him, and he died of the wound. "After argument at the bar, all the justices, seriatim^ delivered their opinions, that it was not murder, but man- slaughter ; the bailiff was slain in doing an unlawful act in seeking to break open the house to execute process for a subject, and every one is to defend his own house. Yet they all held it was manslaughter, for he might have resisted him without killing him ; and when he saw and shot voluntarily at him, it was manslaughter." That was one of the earliest cases, and was full}' considered ; and it has been cited in all the books on criminal law since its decision in 1640 (loth Car. I.), — with some incoriectness of statement, in 1 Hale P. C. 458, and in other books adopting Hale's text. This is in some measure rectified by a remark, 1 East P. C. 321. 322. See also Roscoe Cr. Ev. 758; also 1 Bishop Cr. L., § 858, n. 2 (5th ed.). It is to be specially- noticed that what made it manslaughter was that in order to defend his castle, it was not necessary to kill tlie bailiff. The same idea of necessity, in order to relieve the killing from being manslaughter, exists in the case of defending one's person, as stated in ] Hawkins P. C. 113 : *•' Homicide se defendendo seems to be when one who has no other possible means of preserving his life from one who combats him on a sudden quarrel, or of defending his person from one who attempts to l)eat him (especially if such attempt be made upon him in his own house) kills the person bj- whom he is reduced to such an inevitable necessit}'." In a learned note in 2 Arclib. Cr L. 225. it is said : "But when it is SECT. III.] STATE V. I'ATTERSON. 57o said that a man ma}^ rightfully use as much force as is necessary for tlie protection of his person and propert}', it should be recollected that this rule is subject to this most important modification, — that he shall not, except in extreme cases, endanger human life, or great bodily harm. . . . You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public dut}'." It is, therefore, clear that if one man deliberately kills another to prevent a mere trespass on his prop- ert_y — whether tliat trespass could or could not otherwise be prevented ■ — he is guilt}' of murder. If, indeed, he had at first used moderate force, and this had been returned with such violence that his own life was endangered, and then he killed from necessity, it would have been excusable homicide. Not because he could take life to save his prop- erty, but he might take the life of the assailant to save his own. Harcourt's Case, 5 Eliz., stated 1 Hale P. C. 485, 486, shows that this doctrine is not new. " Ilarcourt, being in possession of the house by title, as it seems, A. endeavored to enter, and shot an arrow at them within the house, and Harcourt, from wiUiin, shot an arrow at tliose that would have entered, and killed one of the company. This was ruled manslaughter, and it was not se defendendo^ because there was no danger of his life from them without." What was thus ruled is the key to the author's meaning in the next following paragraph of his book, which see. The idea that is embodied in the expression that a man's house is his castle, is not that it is his property, and, as such, he has the right to defend and protect it by other and more extreme means than he might lawfully use to defend and protect his shop, his office, or his barn. The sense in which the house has a peculiar immunit}' is that it is sacred for the protection of his person and of his famih'. An assault on the house can be regarded as an assault on the person only in case the purpose of such assault be injury to the person of the occupant or members of his famil}', and, in order to accomplish this, the assailant attacks the castle in order to reach the inmates. In this view, it is said and settled that, in such case, the inmate need not flee from his house in order to escape from being injured by the assailant, but he may meet him at the threshold, and prevent him from breaking in by anj- means rendered necessary by the exigency ; and upon the same ground and reason as one may defend himself from peril of life, or great bodil}' harm, by means fatal to ]he assailant, if rendered necessary by the exigency of the assault. This is the meaning of what was said bj- Ilolroyd, J., in charging the jury in Meade's Case, 1 Lewin C. C. 184. Some exasperated sailors had ducked Meade, and were in the act of tlirowing him into the sea, when he was rescued by the police. As the gang were leaving, the}' threatened that they would come by night and pull his house down. In the middle of the night a groat number came, making menacing demonstrations. Meade, under an apprehension, as he alleged, that his life and property were in danger, fired a pistol, by which one of the 57G^ STATE V. PATTERSON. [CIIAP. V. party was killed. Meade was indicted for murder. Upon that state of facts and evidence, the judge said to the jur}- : "A civil trespass will not ex(!use tlie firing of a pistol at a ti'espasser in sudden resentment or anger, &c. . . . But a man is not autliorized to fire a pistol on every intrusion or invasion of his house. Jle ought, if he has reasonable opportunity, to endeavor to remove him without having recourse to the last extremit}-. But the making au attack upon a dwelling, and especially at night, the law regards as equivalent to an assault on a man's person ; for a man's house is his castle ; and, therefore, in the eye of the law, it is equivalent to an assault; but no words or singing are equivalent to an assault ; nor will they authorize au assault in return, &c. . . . Tiiere are cases where a person in heat of blood kills another, that the law does not deem it murder, but lowers the offence to manslaughter ; as, where a party coming up by way of making an attack, and without there being any previous apprehension of danger, tlie party attacked, instead of having recourse to a more reasonable and less violent mode of averting it, having an opportunity so to do, fires on the impulse of the moment. In the present case, if 30U are of opinion that the prisoner was really attacked, and that the party were on the point of breaking in, or likely to do so, and execute the threats of the da}' before, he. perhaps, was justified in firing as he did. If you are of opinion that he intended to fire over and frighten, then the case is one of manslaughter and not of self-defence." The sense in wliich one's house is his castle, and he may defend him- self within it, is shown b}' what is said m 1 Hale P. C. 486, that "in case he is assaulted in his own house, he need not flee as far as he can, as in other cases of se defende/ido, for he hath the pi'otection of his house to excuse him from flying, as that would be to give up the pro- tection of his house to his adversary by flight." Now, set over against that what is said in 1 Russell, GG2, and the true, distinction between the house as property, on the one hand, and as castle for protection on the other, is very palpable, viz. : "If A., in defence of his house, kill B., a trespasser, who endeavors to make an entry upon it, it i.s, at least, com- mon manslaughter, unless, indeed, there were danger of life ; " p. G63. "But where the trespass is barely against the property of another, the law does not admit the force of the provocation as sufficient to warrant the owner in making use of a deadly or dangerous weapon ; more par- ticularl}' if such violence is used after the part}' has desisted from the trespass." In Carroll /•. State, 23 Ala. 36, it is said : " The owner may resist the entry into his house, but he has no right to kill, unless it lie rendered necessary in order to prevent a felonious destruction of his property, or to defend himself against loss of life, or great bodily harm." Cited 2 Bishop Crira. Law, § 707, 5th ed. That case impresses us dif- ferently from what it does the learned"author, as indicated by his remark prefacing the citation. As developing and illustrating the prevailing" idea of the law as to what will justify homicide se et sua defendendo, it is not without inter- SECT. III.] STATE V. PATTERSON. O/ est upon the point now under consideration, to advert to wliat is said upon the general subject. In McNally, 5G2, it is said: "Tlie injured party may repel force by force in defence of liis person, habitation, or propert\', against one who manifestly intendeth and endeavoreth by violence or surprise to couiniit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he tindeth himself out of danger ; and if in such conliict he happeneth to kill, such killing is justifiable." Wharton incor[)orates this into liis work as text. The same is found in the older books. 1 Hale P. C. 48;'.. 486 ; also in Foster's Crown Law, 273 ; 1 Russell, GG7 ; and in otliei books, ad lib. But to apprehend this in its true scope and application, it is important to have in mind what is said in 1 Russell, GG8 : ''The rule clearly extends only to cases of felony ; for, if one come to beat another, or take his goods merely as a trespasser, though the owner may justifj- the beating of him so far as to make him desist, yet if he kill him, it is manslaughter. . . . No assault, however violent, will jus- tify killing the assailant under a plea of necessity, unless there be a manifestation of felonious intent." See Archb. Crim. Law, 221, cited 9 C. & P. 24. This covers the cases of statutory justification of homicide, both under our own, and under the English statutes, and, in principle, and in rea- son, it is in keeping with the common law as to se defendendo, in defining the scope of which in this respect, it is well laid down that, " before a person can avail himself of the defence that he used a weapon in defence of his life, it must appear that that defence was necessary to protect his own life, or to protect himself from such serious bodily harm as would give him reasonable apprehension that his life was in immediate danger." 1 Russell, 661. The law of the subject, as given in the books thus cited and referred to, seems to have been adequately apprehended by the court, and, so far as we can judge from what is shown b}' the record before us, it was not administered erroneously or improperl}' in the trial, as against the respondent. If it were to be assumed that the defence miglit legitimately claim that there was an assault on tlie house, with the intent either of taking the life of the respondent or doing to him great bodily harm, the respondent would be justified in using a deadly weapon, if it should be necessary in order to prevent the perpetration of such crime, or if, under the existing circumstances attending the emergenc}', the respond- ent had reason to believe, and was warranted in believing, and, in fact, did believe, that it was necessary in order to prevent the commission of such crime. In case the purpose of the assailant was to take hfe, or inflict great bodily harm, and the object of his attack (if there was such attack) upon the house was to get access to the inmate occupying the same, for sucli purpose, the same means might lawfully be used to prevent him from breaking in as might be used to prevent him from making the harmful assault upon the person, in case the parties were 578 KEEDER V. rURDY. [CHAP. V. met face to face in any other place. In either case the point of justi- fication, is that such use of I'atal means was necessary in order to the rightful, effectual protection of the respondent, or his family, from the threatened or impending peril. We have been led to this discussion and exposition of the law as to the defence of the dwelling liotisc on account of the somewhat frag- mentary and disjointed condition in whicli it is done up in the books and cases of (;riminal law. niid for the purpose of rendering as explicit as we are al)le the views of this court on that subject, as it has been brouglit into question and debate in the case in liand. In this exposi- tion, and in the views embodied in this opinion, all the members of the court concur. The other subjects involved in grounds and points of defence, a"s shown by the bill of exceptions, and upon which the court gave instruc- tions to the jurj'. do not seem to require discussion. The verdict is set aside, and new trial granted. REEDER V. PURDY. Supreme Court of Illinois, 1866. [Reported 41 III. 279.] Lawrence, J. These two cases, although separately tried, depend upon the same facts and present similar questions, and it will be more convenient to dispose of both in one opinion. In October, 1862, Reeder, claiming to be the owner of a house occu- pied by Purdy and his wife, entered it, accompanied by the other appellants, for the purpose of taking possession. Purdy was not at home. Mrs. Purdy refused to leave, whereupon Reeder commenced putting the furniture out of doors. She resisted this, and he seized her and held her by the wrists, while Baker, one of the co-defendants, con- tinued to remove the furniture. This was somewhat damaged, and some slight injury was done to the wrists of Mrs. Purdy by the force applied in holding her. The appellants finally abandoned their attempt to take possession and withdrew. Two actions of trespass have been brought, one by Purdy alone, and one by Purdy and wife jointly. The declaration in the suit brought by Purdy contains three covmts, the first being for the assault upon his wife, the second for the injury to the personal property, and the third for breaking his close and carrying off his furniture. The declaration in the suit of Purdy and wife contains two counts, both of which are for the assault upon the wife. There were pleas of not guilty, and an agreement that all defenses might be made under them. A verdict SECT. III.] REEDER V. PURDY. 579 for the plaintiflf of S450 in one case, and $500 in the other, was returned by the jury, and a judgment was rendered upon it, from which the de- fendants g^ppealed. It is insisted by the appellants that Reeder, being the owner of the premises, had a right to enter, and to use such force as might be neces- sary to overcome any resistance, and that he cannot be made liable as a trespasser, although it is admitted he might have been compelled to restore to Purdy, through an action of forcible entry and detainer, the possession thus forcibly taken. The court below instructed otherwise, and this ruling of the court is assigned for error. We should not consider the question one of much difficulty, were it not for the contradictory decisions in regard to it, and we must admit that the current of authorities, up to a comparatively recent period, is adverse to what we are convinced must be declared to be the law of the State. But the rule cannot be said to have been firmly or authori- tatively settled even in England, for Erskine, J., observes in Newton v. Harland, 1 Man. & Gr. 644 (39 E. C. L. .581), that "it was remarkable a question so hkely to arise, should never have been directly brought before any court in banc until that case." This was in the year 1840, and all the cases prior to that time, in which it was held that the owner in fee could enter with a strong hand, without rendering himself liable to an action of trespass, seem to have been merely at 7usi privs, like the oft-quoted case of Taunton v. Costar, 7 T. R. 431. Still this was the general language of the books. But the point had never received such an adjudication as to pass into established and incontrovertible law, and a contrary rule was held by Lord Lyndhurst in Hilary r. Gay, 6 C. & P. & 284 (25 E. C. L. 398). "^But in Newton r. Harland, already referred to, the Court of Common Pleas gave the question mature con- sideration, and finally held, after two arguments, that a landlord who should enter and expel by force a tenant holding over after expiration of his term, would render himself liable to an action for damages. But the later case of Meriton v. Combs, 67 E. C. L. 788, seems to recognize the opposite rule, and we must, therefore, regard a question which one would expect to find among the most firmly settled in the law as still among the controverted points of Westminster Hall. In our own country there is the same conflict of authorities. In New York it has been uniformly held, that, under a plea of libcrnm tcne- mentum, the landlord, who has only used such force as might be neces- sary to expel a tenant holding over, would be protected against an action for damages. Hyatt v. W^ood, 4 Johns. 150, and Ives v. Ives, 13 Id. 235. In Jackson v. Farmer, 9 Wend. 201, the court, while recogniz- ing the rule as law, characterize it as " harsh, and tending to the public disturbance and individual conflict." Kent, in his Commentaries, states the principle in the same manner, but in the later editions of the work, reference is made by the learned editor, in a note, to the case of Newton v. Harland, above quoted, as laying down " the most sound and 580 KEEDER V. PURDY. [cHAP. V. salutary doctrine." In Tribble v. Trance, 7 J. J. Marsh. 598, the court held, that, notwithstanding the Kentucky statute of forcible entry and detainer, the owner of the fee, having a right of entry, may use such force as may be necessary to overcome resistance, and protect himself against an action of trespass, imder a plea of lihcruvi tencrncntum. On the other hand, the Supreme Court of Massachusetts has held, that, although trespass quare clausum may not lie, yet, in an action of tres- pass for assault and battery, the landlord must respond in damages, if he has used force to dispossess a tenant holding over. The court say "he may make use of force to defend his lawful possession, but being dispossessed, he has no right to recover possession b}- force, and by a breach of the peace." Sampson v. Henry, 11 Pick. 379. See also Ellis 1). Page, 1 id. 43; Sampson v. Henry, 13 id. 36; Header v. Stone, 7 Mete. 147, and Moore v. Boyd, 24 Maine, 242. But by far the most able and exhaustive discussion that this question has received, was in the case of Dustin v. Cowdry, 23 Vt. G35, in which Mr. Justice Red- field, delivering the opinion of the court, shows, by a train of reasoning which compels conviction, that, in cases of this character, the action of trespass will lie. And he also says: "whether the action should be trespass quare clausum, or assault and battery, is immaterial, as under this declaration, if the defendant had pleaded soil and freehold, as some of the cases hold, the plaintiff might have new assigned the trespass to the person of the plaintiff', and a jury, under proper instruc- tions, would have given much the same damages, and upon the same evidence, in whatever form the declaration is drawn." The case of Massey v. Scott, 32 Vt., cited as inconsistent with this case, does not in fact conflict with it. It only holds, that trespass quare clausum will not lie in behalf of a tenant for an entry not within the statute of forcible entry and detainer. In tliis conflict of authorities we must adopt that rule which, in our judgment, rests upon the sounder reason. We cannot hesitate, and were it not for the adverse decision of courts, which all lawyers regard with profound respect, we should not deem the question obscured by a reasonable doubt. The reasoning upon which we rest our conclu- sion lies in the briefest compass, and is hardly more than a simple syllogism. The statute of forcil^le entry and detainer, not in terms, but by necessary construction, forbids a forcible entry, even by the owner, upon the actual possession of another. Such entry is, therefore, unlawful. If unlawful it is a trespass, and an action for the trespass must neces- sarily lie. It is urged that the only remedy is that given by the statute — an action for the recovery of the possession. But the law could not expel liim who has entered if his entry was a lawful entry, and if not lawful all the consequences of an unlawful act must attach to it. The law is not so far beneath the dignity of a scientific and harmonious system that its tribunals must hold in one form of action a particular act to be so illegal that immediate restitution must be made at the SECT. III.] REEDER V. PUEDY. ' 581 costs of the transgressor, and in another form of action that the same act was perfectly legal, and only the exercise of an acknowledged right. It is urged that the owner of real estate has a right to enter upon and enjoy his own property. Undoubtedly, if he can do so without a forci- ble disturbance of the possession of another; but the peace and good order of society require that he shall not be permitted to enter against the will of the occupant, and hence the common law, right to use all necessary force has been taken away. He may be wrongfully kept out of possession, but he cannot be permitted to take the law into his own hands and redress his own wrongs. The remedy must be sought through those peaceful agencies which a ci\'ilized community pro\'ides for all its members. A contrary rule befits only that condition of society in which the principle is recognized that He may take who has the power, And he may keep who can. If the right to use force be once admitted, it must necessarily follow as a logical sequence, that so much may be used as shall be necessary to overcome resistance, even to the taking of human life. The wisdom of confining men to peaceful remedies for the recovery of a lost posses- sion is well expressed by Blackstone, book 4, p. 148: " An eighth offense," he says, "against the public peace, is that of a forcible entry and de- tainer, which is committed by violently taking or keeping possession of lands- and tenements with menaces, force and arms, and without the authority of law. This was formerly allowable to every person dis- seized or turned out of possession, unless his entry was taken away or barred by his own neglect or other circumstances, which were explained more at length in a former book. But this being found very prejudicial to the public peace, it was thought necessary, by several statutes, to restrain all persons from the use of such \nolent methods, even of doing themselves justice, and much more if they have no justice in their claim. So that the entry now allowed by law is a peaceable one; that forbidden, is such as is carried on with force, Aaolence and unusual weapons." In this State, it has been constantly held that any entry is forcible, within the meaning of this law, that is made against the will of the occupant. We state, then, after a full examination of this subject, that in our opinion the statutes of forcible entry and detainer should be construed as taking away the pre\^ous common law right of forcible entry by the owner, and that such entry must be therefore held illegal in all forms of action. There are, however, some minor points upon which both of these judgments must be reversed.^ ^ The remainder of the opinion is omitted. — Ed. 582 - SULLIVAN V. OLD COLONY RAILROAD. [CHAP. V. SULLIVAN V. OLD COLONY RAILROAD. Supreme Judicial Court of Massachusetts, 1888. [Reported U8 Mass. 119.] Morton, C. J. The plaintiff was a passenger upon the defendant's railroad, ha\-ing a ticket which entitled him to be carried from Boston to his home in Randolph. It appeared at the trial that he was drunk and disorderly, using indecent language, to the annoyance of the other passengers; that he was requested to be quiet and refused; and there- upon the officers of the defendant, who were also railroad police offi- cers, not intending to arrest him, but to remove him, so as to protect the other passengers from annoyance, removed him from the cars to the platform of the depot at an intermediate station, and carried him along the platform to the baggage car, which was the third car forward of the car in which he had been riding, using only reasonable force; and that he rode in the l)aggage car to Holbrook, a station near his home in Randolph, without attempting or expressing any desire to leave the train. It is clear that, under these circumstances, it was the right and duty / of the defendant's officers to protect the other passengers by remov- ing the plaintiff from the car in which he was riding. Vinton v. Mid- dlesex Railroad, 11 Allen, 304. They might have left him at the place where he was removed, and if, after being removed, he had demanded to be released, or had refused to enter the baggage car, it would pre- sent a different question; but he did neither, and the act of putting him in the baggage car was done in kindness to him, for the purpose of carrying him to his home, which the jury may well have found to have been reasonable and proper, and not to have been an assault or imprisonment. The principal contention of the plaintiff is, that they had no right to remove him except by arresting him under § 18, c. 103, of the Pubhc Statutes. This statute, which provides that railroad police officers may arrest a noisy or disorderly passenger without a warrant, and remove him to the baggage or other suitable car, and confine him there until the train arrives at some station where such passenger can be placed in charge of an officer, who shall take him to a place of lawful detention, was intended to confer additional powers upon officers of the railroad who arc appointed railroad police officers, and not to take away the common law right of the railroad corporation, by its servanTs~dF" agents, to remove a passenger who is noisy and disorderly to the an- noyance of the other passengers. Beckwith v. Cheshire Railroad, 143 Mass. 68. SECT, 111.] YODER V. YODER. 583 -m In the case at bar, the court properly refused to instruct the jury, as requested by the plaintiff, that the defendant had no legal right to remove the plaintiff in the manner set out in the evidence. And the in- structions given were sufficiently favorable to the plaintiff. Exceptions overruled. HUNT V. CASKEY. Supreme Court of New Jersey, 1905. [Reported 60 Atl. Rep. 42.] Per Curiam. This is an action for damages for assault and battery. At the time of the occurrence the defendant was secretary and treas- urer, and also executive officer, of the Hunt Penworks, in Camden. The plaintiff had formerly been the president of that concern, but had been removed from that position for improper conduct which was preju- dicial to the company's interests. He was on the company's prem- ises at the time of the assault, apparently for the purpose of surrep- titiously acquiring information with relation to its operations. He was ordered to leave the premises by the defendant, and, upon his refusal to leave, the assault was committed. The e\adence makes it quite plain that the plaintiff was quite severely beaten, and that the as- sault was without legal justification, the force used being greatly in excess of that which was necessary to be exerted in order to eject him from the premises. For this reason a verdict in his favor was properly rendered. The amount of the recovery ($3,000), however, was, in our judgment, excessive. If the plaintiff will consent to have the verdict reduced to $1,000, he may enter judgment for this amount; otherwise the rule to show cause will be made absolute. YODER V. YODER. Supreme Court of Pennsylvania, 1913. [Reported 239 Pa. 12.] Potter, J. Under the charge of the court in this case, the verdict of the jury must be accepted as establishing the fact that the defend- ant did not direct the arrest of the plaintiff, but merely directed the 584 BAILEY V. PEOPLE. [CHAP. V. officers to remove him from the hotel owned by the defendant, and in and about which the plaintiff had been engaged as an employee of the defendant. The record shows testimony clearly sufficient to sustain a finding by the jury that, after defendant had repeatedly demanded of |. plaintiff that he should obey his orders, and had received no satisfac- tory reply, he ordered plaintiff from the building, and the latter refused to go, before the officers were sent for and instructed to take him out. In this action the defendant was -within his right. He was the owner of the hotel, and under the agreement with plaintiff the latter acquired no interest in the property but had only an interest in the profits aris- ing from the business. As owner, the defendant had the riglit to order plaintiff from the premises, and in case of refusal had the right to re- move him by force, if necessary. Ht pursued the course which was com- mended by this court in Sloan v. Schomaker, 136 Pa. 382, where it was said (p. 390), that when the plaintiffs were ordered from defendant's store, " it was their legal duty to go. In strict law defendant might then have used sufficient force to put them out with his own hands. In- stead of doing so, he adopted the prudent and commendable course of sending for an officer." The case is no better for the plaintiff if he be regarded as being at the time in the ser^^ce of the defendant, for even then it Avas his legal duty to go, when ordered to leave. If the order amounted to a wrongful discharge, he had his remedy by suit for damages for breach of the contract of employment, as in iVllen v. Col- liery Engineers Co., 196 Pa. 512, and Coates v. Steel Co., 234 Pa. 199. The issue of fact involved as to the terms of the order given by the de- fendant to the officers was fully and fairly submitted to the jury by the trial judge. They have found as a fact that the defendant did not go beyond ordering the officers to remove the plaintiff from the premises. The assignments of error are overruled, and the judgment is affirmed. BAILEY V. PEOPLE. Supreme Court of Colorado, 1913. [Reported 54 Colo. 337.] Scott, J. Joseph E. Bailey, defendant in error, was con\-icted in the district court of the city and county of Denver, on the charge of the murder of Eugene H. Smith. The verdict was that of murder in the first degree. The wife of Smith was a sister of the defendant Bailey. The homicide occurred on the 18th day of July, 1910. It appears that because of a quarrel between Smith and his wife, and of the \iolerit beating and abuse of her by Smith on the 15th day of July, the wife SECT. III.] BAILEY V. PEOPLE. 585 with her two children left home and took refuge with her mother at the house where the defendant and his wife resided. Tliis seems to have been but one of many similar occurrences. At about ten o'clock on the evening of the 18th, Smith called over the telephone demanding that he be permitted to talk with his wife, which was refused by the mother who answered the telephone, where- upon Smith replied with \'ile and abusive language, which caused the mother to hang up the receiver. About fifteen minutes after this, Mrs. Smith's little boy, by a former marriage, who was in the yard for the pur]X)se of sleeping there, and who had heard his grandmother talk over the telephone, came running into the house and shouted to his mother that he, meaning Smith, was coming. It seems that all of the occupants of the house had at this time retired, or were in the act of retiring. Upon hearing the boy's cry, Mrs. Smith ran into the bedroom occupied by the defendant and his wife, and called to him. Mrs. Smith's testimony upon this point is in substance as follows: "I looked out of the window, looked northward; I was undressed to go to bed; he was under the arc lights. He was almost running. He was just plunging, just coming in a jump like that (indicating). It frightened me so; I could see from his appearance that he was in a very angry, bad mood, and I ran to my brother's bedroom door and called to him that there he came. I said to my brother: 'Get up out of bed, yes, there he comes,' and I said, 'For God's sake, don't let him come in here; if you do he will kill the whole family — he will kill mother and me.'" ' The defendant thereupon arose from his bed, secured a revolver and called out to Smith through the window, demanding that he should not come into the yard. He then went from his bedroom into a room from which a door opened upon a porch, and upon which Smith was entering. The defendant called to Smith, it appears four times, and demanded that he should not come in. In reply to either the first or second re- quest Smith said, " I will come in and get the whole God damned push of you." Smith finally opened the screen door as if coming in, when the de- fendant said, " I tell you for God's sake don't try to enter this side porch or the house; if you do I will shoot you." About this time the defend- ant fired the shot that resulted in the death of Smith. The defendant was crippled in his right hand from an injury recentjy sustained, and was compelled to use the revolver with his left hand. Smith was a very large and powerful man, much larger than the defendant. It appears that earlier in the day R. L. McDonald, a brother-in-law, at the request of Mrs. Smith, went to Smith to see if an adjustment of their troul)le could not be had, and at which time Smith said, " Well, if she will come back and live with me and do just as I say, I will live with her, and if she won't, God damn her, I will kill her." A witness named Tyler, who was at the time living at the house of 586 BAILEY V. PEOPLE. [CHAP. V. the Smiths', also testified that, "On the morning of the shooting, Smith showed me a gun and said, ' It was a God damn good thing you got me drunk last night, or I would have gone down and cleaned out the whole God damn push.' Smith came home on the morning of the 18th of July (the day of the shooting) about two o'clock. He had been drinking. He came into my room and raised a fuss with me; struck me and used — (the witness repeats \'ile language of deceased towards him). I had a thirty-eight revolver under my pillow; I drawed the gun on him and stood back on the opposite side of the bed until I could get down the stairway, and when I got down the stairway, I got out and stayed out the rest of the night. Mrs. Smith wasn't there; just I and Smith." There are many assignments of error, but in as much as the case must be reversed by reason of certain prejudicial instructions given, it will not be necessary to consider other assignments. The court, over the objection of the defendant, gave instructions Nos. 10 and 21, which are so clearly erroneous and prejudicial to the rights of the defendant, and are so closely connected in their subject matter as to make it convenient to consider them together. These in full are as follows: " No. 10. That if you believe from the evidence, that the deceased, Eugene H. Smith, attempted to enter the house of Joseph E. Bailey or his mother, wherein he resided, and that at the time he attempted to enter the same he feloniously intended to assault or kill any of the inmates thereof, then you are instructed that the doctrine that every man's house is his own castle, would apply, and the defendant Joseph E. Bailey is not required under the law to retreat from the position or stand which he had taken; but upon the other hand, if you believe that the said Smith attempted to enter the said house for the purpose of con- versing with and inducing his wife to leave the said house, or for the purpose of using physical force, in endeavoring to do so, and had no intention of injuring or attempting to injure any of the inmates of the said house further than to exercise a reasonable supervision and con- trol over his wife and her conduct, then you are instructed that there is no self-defense in this case, and no justifiable kiUing, and the said Joseph Bailey's killing of the deceased was unlawful, unless you believe from the evidence, that the circumstances attending the entry into the house was of such a character as would lead a reasonable man under like circumstances to believe that he or the inmates of the said house were about to receive great bodily injury." "No. 21. The court instructs the jury: That the deceased, Eugene H. Smith, as the husband of the sister of the defendant, Joseph E. Bailey, had a right to exercise such reasonable control over her as was necessary to conduce to the proper establishment and maintenance of his household as the head of a family; and as such husband had a riglit to enter, in a lawful manner, the house or houses of any person SECT. III.] BAILEY V. PEOPLE. \ 587 whomsoever, for the purpose of talking with and procuring his said wife to leave the said house, if he so desired, and had a right to use such reasonable force and persuasion as was necessary to induce her to leave the house of her mother and come back to her home with him; and no person, not even her brother, Joseph E. Bailey, had a right to interfere with him in the exercise of such reasonable force or persua- sion; and if you believe from the e\adence, beyond a reasonable doubt, that the deceased, Eugene "H. Smith, left his home on the evening of July 18th, and after telephoning to the house of Mrs. Bailey, went there for the purpose of seeing his wife and talking with her and en- deavoring to persuade and induce her to leave the house of the said Mrs. Bailey, her mother, or to talk over their family affairs and difficulties, and that he had no intention to inflict bodily harm or injury upon the persons in said house, then you are instructed that there is no self- defense in this case and no justification for the killing of the said Eugene H. Smith by the said Joseph E. Bailey." These instructions not only announce such palpable misstatements of the law as to prejudice the rights of the defendant, but go to the extent of proclaiming a doctrine concerning the relation of husband and wife as to appear nothing less than monstrous at this period of our civilization. The jury are here told that in order that the doctrine of self-defense may apply, they must believe from the e\ndence that Smith attempted to enter the house of defendant, and also that at that time he feloni- ously intended to assault or kill any of the inmates. This is not the law. It is not the state of the mind of the defendant alone which the jury are to consider, but of the deceased as well. That is to say, what the de- fendant believed, or what under all the circumstances he might have reasonable cause to believe to be the intention of the defendant. These instructions are the equivalent of a denial of the very right of self-defense as defined and pro\dded by our statutes. Sec. 1632, Re- vised Statutes, 1908, provides: "Justifiable homicide is the killing of a human being in necessary self-defense or in the defense of habitation, property or person against one who manifestly intends or endeavors by \'iolence or surprise to commit a known felony, such as murder, rape, robbery, burglary and the like, upon either person or property, or against any person or per- sons who manifestly intend and endeavor in a ^^olent, riotous or tumul- tuous manner to enter the habitation of another for the purpose of assaulting or offering personal \aolence to any person, dwelling or being therein." The e\ddence clearly justified the submission to the jury of the ques- tion as to whether or not the deceased was a person who manifestly intended and endeavored in a xnolent, riotous, or tumultuous manner to enter the habitation of the defendant for the purpose of assaulting or offering personal violence to any person dwelling or being therein. 588 BAILEY V. PEOPLE. [CHAP. V. Instruction No. 21, without qualification, declares in substance that a husband without warrant of authority, and over the protest of the occupant, has a right to enter the house or houses of any person whom- soever, for the purpose of talking with, and procuring his wife, and against her will, to leave such house if he so desires. This is not now and never was the law in this country. It is a repudiation of every reasonable conception of the law of domicile and the right of habitation. Neither a husband nor any other person has such right. It strikes at the very foundation and sanctity of home life. It gives license to every drunken vagabond, or other e^'il person, to invade the privacy of every man's home. It would destroy the moral, constitutional, statutory, and common law right of defense of habitation. It is true the instruction declares the entrance must be in a lawful manner. But there can be no such thing as lawful entrance under such circumstances. But the part of the paragraph of the instruction following is even more shocking. Here the jury are told that a husband may over the protest of the occupant of the house, and over the protest of the wife of the husband so entering, not only enter any man's house, but has a right also to use such reasonable force and persuasion as may be neces- sary to cause the wife to leave the house of his mother and come back to his home with him, and that no person, not even her brother, has a right to interfere with him in the exercise of such reasonable force or persuasion. The use of the word "force" in connection with the word persuasion can refer to physical force only, and the extent of this force is thus limited only by the necessity of the case, in order to so secure the pos- session, control, and abduction of the person of the wife, and all this as against her will, her fear, and even the apparent danger of her life. In other words, if this be the law, whatever may be the circum- stances, the defendant was absolutely v/ithout right to defend his home and his near relatives from the threatened assaults and brutality of an infuriated and drunken husband, at whose will the home is to be made the place of riot and the occupants to suffer mental distress, probable assault, and as indicated by the testimony in this case, possible murder. Such is not and can never be the law in a ciWlized country. This assertion of the right of a husband to control the acts and will of his wife by physical force cannot be tolerated. The prejudicial effect on the defendant's rights by these instruc- tions is too palpable to require comment. Counsel for defendant in their very excellent brief have cited many cases bearing upon this question. Among these is that of the English case of Queen v. Jackson, Div. 1 , 1S91 . This was a case where a husband undertook to restrain the liberty of his wife by forcibly keeping her in his own home after she had declined to further live with him. The decision SECT. III.] BAILEY V. PEOPLE. 589 of the court in that case may be epitomized in the statement of Mr. Helmer CoUins, Q. C, as follows: " The contention of the husband would result in the re-introduction into society of private war; for the male relations of a wife would naturally, if at hand, he likely to resist her capture by the husband. The contention for the husband involves wholly untenable propositions. First, it involves that the husband may take possession of the wife's person by force, though no process of law could give him such posses- sion of her. There never was any process of law for seizing and hand- ing over the wife to the husband." . . . " x\ husband has no such right at common law to the custody of his wife. It is inconceivable that the husband should be entitled to do by force for himself that which the law cannot enforce in his favor." In Fulgham v. State, 46 Ala. 143, the rule is stated as follows: " But in person, the wife is entitled to the same protection of the law that the husband can invoke for himself. She is a citizen of the State, and is entitled, in person and in property, to the fullest protection of the laws. Her sex does not degrade her below the rank of the highest in the Commonwealth." In State v. Oliver, 70 N. C. 44, it is said: " We may assume that the old doctrine that a husband had a right to whip his wife, provided he used a switch no larger than his thumb, is not law in North Carolina. Indeed, the courts have ad^•anced from that barbarism until they have reached the position that the husband has no right to chastise his wife under any circumstances." Again, in Buckingham v. Buckingham, 81 Mich. 89, the same doc- trine is declared: "There would seem to be no legal principle which would prevent her from voluntarily deserting her husband, and abandoning her homestead. She is in no sense the slave of her husband, and is so far the master of her own will that she has liberty to remain with her hus- band, or go from him, as she pleases; and he has no legal remedy to compel her to return." In State v. Connolly, 3 Ore. 69, the principle is stated as follows : "If Mrs. Hill, the wife of the deceased, having reasonable ground to apprehend personal violence at the hands of her husband, sought a temporary refuge in the defendant's house, and the deceased, being forbidden, sought to enter, then either the defendant or his wife had a right to use all necessary force to prevent him from entering." And in Commonwealth v. McAfee, 108 Mass. 459, we find a very clear and comprehensive statement of the rule: "It may be stated, however, that under modern legislation, as well as judicial opinions, that fiction of legal unity by which the separate existence of the wife in a legal sense is denied is exploded. Her person is as sacred as that of the husband, and the protection afforded by law to the one should not be denied to the other. In fact, courts of equity 590 COMMOXWEALTH V. DOUGHERTY. [CHAP. V. have always recognized the separate existence of the wife in reference to her sole and separate estate, and to say that a court of law will recognize in the husband the power to compel his wife to obey his wishes, by force if necessary, is a relic of barbarism that has no place in an enlightened civilization." ^ . . • The judgment is reversed, and the case remanded}' COMMONWEALTH v. DOUGHERTY. Supreme Judicial Court of Massachusetts, 1871. [Reported 107 Mass. 243.] Two complaints to the district court of central Berkshire, for as- sault and battery of John McCarthy; the first offense averred to have been committed in a church building, and the second in a burial ground. The defendant was found guilty on both, and appealed. At the trial of the first complaint, in the Superior Court, on the appeal, before Reed, J., there was evidence of these facts: The defendant was sexton of the Roman Cathohc church building in Pittsfield, and in that capacity had charge of the building and of the conduct of funerals in it. He was also an undertaker. It was the rule concerning funerals in the building, that the priest or the sexton should be informed of the death, and of the desire of the friends of the deceased that funeral services should be performed there; upon receiving such notice, either the priest or the sexton would fix a time for such services, to avoid interference with the other exercises of the church; and it was the sexton's duty to take charge of the funeral procession, when it reached the door of the building, and to precede the bearers of the corpse up the aisle, superintend the deposit of the bier in the place provaded for it, seat the mourners, and then, if the priest was not present, call him. On Sunday, May 17, 1870, at the close of a religious ser\'ice in the building, and after the congregation had been dismissed, but while some of them were lingering at prayer within the building, John Mc- Carthy, an undertaker who had recently set up in business in Pittsfield, came to the building in charge of a funeral of which no previous notice had been given, and attempted to enter and perform the duties of the sexton in regard to it. ITpon McCarthy's arrival at the vestibule, the defendant, who was seated at a desk within the door, forbade him to proceed with the funeral in the building. But Mc- ' Part of the opinion is omitted. — Ed. 2 See State v. Sinclair, 250 Mo. 278, 157 S. W. 339. — Ed. SECT. III.] COMMONWEALTH V. DOUGHERTY. 591 Carthy persisted in his attempt, marched up the aisle with his proces- sion, and was directing one Tim Powers where to put the bier, when the defendant "came down the aisle, and told him to go out of the church, and forcibly removed him, but without more force than was necessary to eject him from the building." Upon these facts the defendant requested a ruling that he was en- titled to an acquittal, which the judge refused, whereupon by consent of the defendant a verdict of guilty was returned and the case reported for the revision of this court. Morton, J. It appeared at the trial, that the defendant was the sexton and person in charge of the church, and that it was his duty to take charge of and conduct funerals at the church. The complainant McCarthy had no right to insist upon conducting a funeral there in violation of the rules prescribed by the authorities of the church to maintain order and prevent interference with other religious exercises. The facts show that he did so, and that, upon being requested to desist and leave the church, he refused, and persisted in his unauthor- ized intrusion. We think the defendant, being in charge of the church, upon such refusal, had a right to remove him ; and as the facts find that in so doing he used no more force than was necessary, he was not guilty of an assault and battery. The jury should have been instructed, as requested by the defendant, that upon the facts shown at the trial he was entitled to an acquittal. Verdict set aside. At the trial of the second complaint, in the Superior Court, also before Reed, J., the following facts appeared: The fee of the Roman Catholic burial ground in Pittsfield was in Edward H. Purcell, the pastor of the church of St. Joseph in Pitts- field; and he had established certain rules for its use, the tenth and eleventh of which were as follows : " Tenth. The conduct and charge of all funeral processions and gatherings of persons in and upon the grounds of said cemetery shall be in the person appointed for that purpose by the pastor of the church of St. Joseph in Pittsfield, and strict obedience to his requirements is demanded and will be enforced. " Eleventh. Undertakers, and all other persons having charge of a funeral or burial, before entering upon the cemetery grounds, will notify the person in charge of the cemetery of the time such burial will occur. In the cemetery all arrangements therefor will be made, and the charge of such funeral received at the entrance of said cemetery, and no undertaker or other person than the pastor or his appointees will be permitted to officiate in any way or matter upon the grounds." The defendant was the person appointed by leather Purcell under the tenth rule, and had charge of the burial ground. Licenses for lots were granted b\' Father Purcell in a form certifying 592 HIGGINS V. MINAGHAN. [CHAP. V. that the licensee was entitled to the use of one burial lot of specified dimensions, subject to the rules for the use of the burial ground, and on condition that persons dying drunk or unbaptized, or otherwise op- posed to the Catholic Church in the opinion of the Roman Catholic bishop of Boston, should not be entitled to observance of the license. At the funeral (described in the first case) which the undertaker McCarthy was conducting, he "entered the burial ground with the corpse, under this usual license, and there conducted the funeral cere- monies, and, as is usual on such occasions with Roman Catholics, gave thanks and made prayers at the close." As McCarthy was rising from his knees and putting on his hat, the defendant, " coming up to object to his presence and actions in conducting the funeral on the cemetery grounds, struck him upon the shoulder, and objecting that he was not permitted to go there as undertaker with a funeral, and that Father Purcell had prcN^iously thereto forbidden him to take charge of a funeral at the cemetery, refused to permit him to officiate thereat in the cemetery." Upon these facts (as in the first case) the defendant requested, and the judge refused, a ruling that the defendant was entitled to an ac- quittal; whereupon by consent of the defendant a verdict of guilty was returned and the case reported to this court. Morton, J. We cannot say, as matter of law, that the verdict of the jury was erroneous. It appeared at the trial, that, after McCarthy had concluded the funeral services, the defendant struck him on the shoulder. It does not appear that this was for the purpose of removing him from the cemetery. If it be admitted that the defendant had the right to remove McCarthy, it does not follow that this assault was justifiable. It was for the jury to decide whether the force used by the defendant was used for the purpose of removing him, and whether it was reasonable in kind and degree. Both of these questions were within the province of the jury to determine, and we cannot revise their finding thereon. Judgment on the verdict. HIGGINS V. MINAGHAN. • Supreme Court of Wiscoxsin, 1891. [Reported 78 Wis. 602.] Cole, C. J.^ A number of instructions were asked on the part of the defendant, some of which were covered by the general charge; and 1 Part of the opinion is omittefl. — Ed. II SECT. III.] HIGGINS V. MINAGHAN. 593 some were refused which should have been given. The instructions and charge are too lengthy to be quoted verbatim, nor is it necessary, to make our remarks upon them intelligil)le. The really controverted question in the case was whether, under the circumstances, the de- fendant was justified in shooting the plaintiff as he did. The trial court, in considering the question whether the shooting was excusable or justifiable, said: "The defendant, as he had a lawful right to do, on the 14th day of June married a second wife and took her to his home to live. On the night of June 18, 1887, the plaintiff and others — men and boys — proceeded to the defendant's house, and engaged in what is designated as a charivari, the nature and character of which is shown by the evi- dence. The same thing was repeated on the nights of the 22d and 2oth of the same month. It was continued on the last night until the plaintiff was shot, when the crowd dispersed. What was done on each night is for you to ascertain and consider. The plaintiff was present ,on the 18th and 25th of June, as an actual participant, or aiding and encouraging the others, so that he is responsible for the acts, lan- guage, and conduct of each and every one constituting the charivari party, the same as if done by himself. He knew what had been done on the night of the 22d, before the commencement of the proceedings and disturbance on the 25th. The defendant, at these times, was in the peaceable pursuit of his own business, at home with his family, and entitled to enjoy domestic peace and tranquillity, without disturbance or molestation from the plaintiff or any one else. These three gather- ings by the plaintiff and others were composed of men and boys from the defendant's neighborhood, but whether he knew who they were at these times is, of course, a question for you to determine. The chari- vari parties consisting of the crowd in front of or upon the defendant's premises constituted an unlawful assembly; and by their transactions, conduct, and behavior became what is known in the law as a 'riot,' tending to the disturbance of the peace and the annoyance, if not the terror, of the defendant and others in the vicinity; they were trespassers in the highway. Where an unlawful assembly and riot, like the one in question, offers and threatens violence to persons or property, it may and ought to be repelled with suitable and necessary force; but, where no violence is offered or threatened to person or property, no one is justified in unnecessarily or wantonly killing or wounding a person engaged in a charivari. The law pro^^des a punishment for such un- lawful acts. Persons thus engaged are not necessarily outlaws beyond the protection of the law, who may be slain or wounded without cause by any person not in any actual or apparent danger from their acts. To enable you to determine whether violence was offered, danger to person or property was threatened or contemplated, the numbers in these unlawful assemblies, and their acts and transactions, proceed- ings, and conduct on the three nights in question may be considered 594 HIGGINS V. MINAGHAN. [CHAP. V. on the question of whether the defendant was justified in doing what he did, if he shot the plaintiff in the leg. . . . " In case you are satisfied from the e\'idence that the defendant shot the plaintiff in the leg, your next duty will be to determine whether such shooting was excusable or justifiable. Every one has the right to protect himself and his family from danger to life or limb, and his home from invasion by the felonious acts of others. He may employ suitable and appropriate means and methods to prevent or avoid the threatened danger. Before force can be resorted to there must be real or apparent danger, and an apparent necessity of using force to avoid or prevent an injury. One instance is where one person attempts a battery of another, in which case the latter is not obliged to submit until an officer can be found or a suit commenced, but he may oppose violence to violence, and the limit to this pri\'ilege is only this: that he must not employ a degree of force not called for in self-defense; he must not inflict serious injuries in repelling slight injuries, nor take life, unless his life or limb is in danger. Where he exceeds the limit of necessary protection and employs excessive force, he becomes a tres- passer himself, and his assailant may recover damages from him for re- pelling th^ assault with a violence not called for. As mere words never constitute an assault, neither will they justify the employment of force in protection against them, however gross, obscene, or abusive they may be. There are, probably, exceptions to this general statement, in words grossly insulting to females — at least, where one would be ex- cused, where grossly vulgar and insulting langug^ge was employed in the presence of his family, if he were promptly to put a stop to it by force. Such force as one may employ in his own defense he may also employ in the defense of his wife, his child, or any member of his family; but to revenge the wrongs of himself or his family is no part of his legal right, and where the danger is repelled, or there is no real or apparent danger, justification for the further use of violence is at an end. The force or means to be employed in self-defense of person or family must be such only as are reasonably necessary to repel or prevent the threat- ened injury. . . . " If the noise, disturbance, and disorderly acts of the charivari party so affected the wife and children of the defendant that he had reason- able grountls to apprehend that either of them was likely to die or to be seriously injured in body, mind, or health, if such acts were contin- ued, and reasonable cause to belie\'e that such injury might result, then the defendant had the right to use the necessary force to avert the apprehended danger, the same as though an actual attack had been made on their persons; but if the sole and only danger to be appre- hended was the injury to his wife and children from fright or terror, then if the defendant with reasonable safety to himself could have approached near enough to have informed the charivari party of this fact, he should have done so, and given them an opportunity t^ desist, - SECT, in.] HIGGINS V. MINAGHAN. 595 before firing into the crowd; he should have used all reasonable and practicable efforts which he could use without exposing himself to danger to let th^m know the situation and danger to his family from their acts ; but if the acts and conduct of the charivari party were of such a character that it would have been impracticable or dangerous to him- self or his limb to have gone near enough to have given them this infor- mation, then he would be excused from so doing. If alone, and, in addi- tion to danger to his wife and child from fright or terror, there was imminent danger of a felonious attack on his house or on its inmates or himself, no notice to the charivari party of such danger to his wife cr child would be necessary; but it would be for you to find whether he is excusable or justifiable in firing, at the time and manner he did, under all the circumstances of the case. The shooting or killing of another is justifiable when committed by any person in either of the following cases." Now, in respect to this charge, we remark (1) that what is said in it about justifiable homicide was calculated to mislead the jury from the real issue. The defendant did not kill any one, and there was no occa- sion to define justifiable homicide, for no such question was in the case. (2) We do not tliink the defendant is bound to notify the chari- vari party that their shooting, noise, and tumult were causing terror and fright to his wife and cliildren, and were seriously injuring them in mind, body, and health. ' This was the third night these persons had been engaged in these unlawful and criminal proceedings. On the first night they came the defendant had warned them away, and directed them to desist. The rioters themselves knew, or should have known, that their acts and conduct about the house, in the night, were well calculated to produce terror and fright, and injuriously affect the de- fendant's family. This was the direct, necessary, and almost inevitable consequence of their acts. If the defendant had again requested them to desist and go away, "had told them they were causing serious bodily harm to his wife and children, his notice and warning would probably have been received with derision, insulting remarks, and vile abuse, as they had been on previous occasions. So we think it was error to charge that the defendant was bound to inform the charivari party of the fact that their riotous conduct was endangering the life of his wife and children, before taking effectual means, by shooting or otherwise, to drive them away. The circuit judge evidently held that the de- fendant had no right to fire into the body of rioters without notice and without having commanded them to disperse; but upon the undis- puted facts of the case the law imposed upon him no such duty. (3) We think the charge is faulty because it did not point out to the jury the essential difference between an assault by one person and by a body of rioters. iVn assault in the latter case always inspires more terror and is attended with greater danger than in the former; for, as defendant's counsel says, when a number of men combine to do an un- 596 HIGGINS V. MINAGHAN. [CHAP. V. lawful act a kind of emulation is excited which leads one after another to go to greater and greater excesses and to resort to more flagrant acts, so that a person assaulted by a mob in that way is necessarily, from the nature of the case, subject to greater terror and apprehension than when the assault is made by an individual, and the assaulted party may act with more promptness and resort to more forcible means to protect himself and suppress the riot than in the latter case. Here the rioters were firing guns, blowing horns, drumming on pans, and making all kinds of hideous noises (76 Wis. 301), and kept up this tumultuous uproar for hours, until his wife and youngest daughter were nearly frig-htened to death. The defendant could not tell when thev would attack his dwelling-house, or shoot him, or personally assault him; and in the excitement and confusion the law would justify or excuse him in the use of firearms for the safety of himself and family, when such means might not be resorted to in the case of an assault by an individual. This idea, or difference between an assault by one and by a large number, is embraced in the eleventh and twelfth and some of the other instructions asked by the defendant, and the point should have been clearly and emphatically impressed upon the minds of the jury, for the difference is great, and common experience teaches that the danger to life and property is immeasurably greater in one case than in the other. The trial court should have charged in the language of the eleventh request, or in some equivalent language, that " a riot is regarde'd in law, always, as a dangerous occurrence, because when rioters have convened in a tumultuous and disorderly manner, and have actually begun to accomplish an unlawful act, to the terror or disturbance of others, the prompting of one rioter is contagion to another, and it is impossible to conjecture or ascertain beforehand to what extremities of lawlessness or crime the excitement and confusion may lead. ... A private person, who cannot otherwise suppress them or defend himself from them, may justify or excuse the use of firearms or other deadly weapons, be- cause it is both a right and a duty to protect one's self and family, and to aid in preser\ang the peace." We see no objection to the charge where the jury were directed : " If a person is assaulted in such a way as to induce in him a reasonable belief of danger of losing his life or of suffering great bodily harm, he will be justified in defending himself, although the danger be not real, only apparent. Such a person will not be held responsible civilly or criminally if he acts in self-defense, from real and honest con\nctions induced by reasonable evidence, although he may be mistaken as to the extent of the actual danger. A person need not be in actual imminent peril of his life or of great l)odily harm before he may shoot his assail- ant; it is sufficient if in good faith he has reasonable ground from the facts, as they appear to him at the time, to apprehend a design to commit a felony, or to do some great personal injury, and reasonable SECT. III.J COPE V. SHARPE. 597 cause for believing that there is imminent danger of such design being accompHshed." We do not deem it necessary to comment further on the charge. We think the case was not submitted to the jury upon proper instruc tions, and that there must be a new trial for that reason. By the Court. — The judgment of the circuit court is reversed, and a new trial ordered. COPE V. SHARPE. Court of Appeal, 1911. [Reported (1912) 1 A'. B. 496.] Appeal of the defendant from the decision of a Divisional Court (Phillimore, Hamilton, and Scrutton, JJ.) upon an appeal from the county court of Surrey holden at Aldershot, reported [1911] 2 K. B. 837. The action was for trespass. The plaintiff, who was the owner of land, by an agreement dated February 1, 1909, let the shooting rights over the land to one Chase for a term of two years. The defendant was bailiff and head gamekeeper to Chase. During April and May, 1909, a number of heath fires broke out on the land of the plaintiff. On April 21, 1909, a serious fire broke out on the south side of a part of the shooting known as the Welsh Drive, where there was a covert affording shelter to nesting pheasants. There was a conflict of evidence as to the direction of the wind. Some fifty men were engaged in beating out the fire. While they were thus occupied the defendant came along the Welsh Drive and set fire to strips or patches of heather at some considerable distance from the main fire and between it and the Welsh Drive. On being asked why he interfered he said the men did not know how to deal with a fire. Shortly afterwards the men succeeded in extinguishing the fire. The plaintiff brought an action in the" county court of Hampshire holden at Basingstoke. Judgment was given in that action for the plaintiff for nominal damages and an injunction. The defendant ap- pealed ; and the Divisional Court, being in some doubt as to whether the county court judge had directed his mind to the question whether the act of the defendant was necessary for the protection of his master's game, ordered a new trial to be had in the county court of Surrey holden at Aldershot: see the report of Cope v. Sharpe, [1910] 1 K. B. 168. It was subsequently ordered that the trial should take place be- fore a jury: see Rex v. Surrey County Court Judge, [1910] 2 K. B. 410. 598 COPE V. SHARPE. [i HAP. V. The second trial proved abortive, as the jury could not agree upon a verdict. The case was thereupon heard for the third time. The county court judge left the following questions to the jury: (1) Was the method adopted by the defendant in fact necessary for the protection of his master's property? (2) If not, was it reasonably necessary in the circumstances? The jury answered the first question in the negative, and the second in the affirmative. An argument ensued as to which question was as a matter of law the proper question to be left. The county court judge held that the second was the proper question. He therefore entered judgment for the defendant. The plaintiff appealed to a Divisional Court, who entered judgment for the plaintiff, [1911] 2 K. B. 837. The defendant appealed. Kennedy, L. J. I have come to the conclusion that this appeal ought to be allowed and the judgment of the learned judge of the county court restored. ^ With parts of the judgments pronounced in the Di\'isional Court I agree. I agree in holding that an interference with the property or the person of another, which otherwise would certainly constitute an actionable trespass, cannot be justified by mere proof on the part of the alleged trespasser of his good intention and of his belief in the ex- istence of a danger which he sought by his act of interference to avert, but which in fact did not exist at all. The case cited by Phillimore, J., from the Year Book, Hil. 22 Edw. 4, f. 45, pi. 9, 10, as to the imprison- ment of a supposed lunatic, supports and illustrates this ^^ew. The person imprisoned was not in fact a lunatic; therefore there was not any basis of danger to justify his imprisonment. There are, however, two points upon which I respectfully differ from the Di\^sional Court in the present ca.se. The first of these is that the learned judges in that Court have decided against the defendant upon the ground that, ac- cording to the first of the two findings of the jury, he has failed to prove that his interference with the plaintiff's property — the patches of heather which the defendant burned — was actually necessary in order to save the covert in which were the nesting pheasants from being in- volved in the conflagration. They have held that the second finding of the jury that the course which the defendant pursued in order to save the nesting pheasants was "reasonably necessary" afforded no defense. The principle of such a decision, as it appears to me, can only be that, although at the moment of the interference of an alleged trespasser with the property of another the danger to life or property which it was sought to avert by that interference was a real and ex- istent danger, and a danger so imminent that any reasonable man would in the circumstances treat it as one in which it was necessary, in order to save life or property endangered, to interfere as the alleged trespasser has done, he must be held, nevertheless, guilty of a trespass, SECT. III.] COPE V. SHARPE. 599 unless he can also prove that, but for that interference, the person or the property which he sought to protect must — for nothing less than this is the meaning of the expression "actually necessary" — have suffered harm or loss. I do not think that this is the law. The justification of such inter- ference depends, in my judgment, upon the state of things at the moment at which the interference takes place, and not upon the inference as to necessity to be drawn from the event. A house is on fire; the fire, as the wind is blowing, creates an imminent danger for the occupant of the adjoining premises, and he, to avert that danger, pours water into the burning house. Let us suppose that the wind suddenly changes, or that unforeseen assistance arrives, so that in the event it is plain that the discharge of water into the burning house was not actually necessary for the preservation of the adjoining premises; can it rightly be contended that if, upon the trial of an action brought by the owner of the burning house to recover compensation for prop- erty which was damaged by the water, it was proved to the satisfac- tion of the jury that the commission of the act complained of was, at the time when such damage was done, "reasonably necessary" (in the words of the second finding of the jury in the present case) in order to save life or property in the premises then endangered by their prox- imity to the conflagration, the plaintiff would nevertheless succeed, because it was proved by him at the trial that, by reason of the subse- quent change of wind or by reason of the arrival of upforeseen assist- ance, his neighbor's precaution was, in the event, actually unnecessary? Or, take the case of the jettison of cargo at sea. Could it properly be contended that the legal justification of the jettison depends upon proof that in fact, as things have happened, it was actually necessary for the safety of the adventure, and that a jettison made reasonably in order to preserve the adventure from imminent peril of destruc- tion in a gale must be held to be unjustifiable, if the owner of the goods jettisoned can prove that, after the jettison took place, a sudden fall of the wind or a sudden change in its direction removed the peril and that, therefore, the adventure would in fact have been preserved with- out the jettison? In my humble judgment, this question ought to be answered in the negative; and, if authority is sought upon the point, I think it sufficiently appears in the judgment of Brett, L. J., in Wliite- cross Wire Co. v. Sa\'ill, 8 Q. B. D. 653, and in the statement in 2 Phillips on Insurance, 3d ed., ch. 15, s. 1, par. 1270 (cited in the argu- ment of the last mentioned case), that, "in order to constitute a basis for a contribution for an expense or sacrifice" — or, in other words, in order to justify the destruction or damage of property at sea for the safety of the adventure — "it must be occasioned by an apparently im- minent peril." I do not think that either Mouse's Case, 12 Rep. 63, or Maleverer v. Spinke, Dyer, 35 b., or Dewey r. White, Moo. & M. 56, cited by Pliillimore, J., furnish any authority for an opposite view. 600 COPE V. SHARPE. [chap. V. On the contrary, it appears to me that the judgment of Best, C. J., in Dewey v. White, Moo. & M. 56, in comparing the justification of the damage caused by puUing down a dangerous structure with the justification in the case of maritime jettison, tends to support the contention of the appellant. These cases do show that the law re- quires, in order to make good a defense in an action of trespass for interference with the property of another for the purpose of averting an imminent danger, that the defendant shall prove that such a danger existed actually, and not merely in the belief of the defendant. They do not show that, even if the existence of such an imminent danger as to vindicate the reasonableness of the interference in order to preserve property exposed to the danger is proved, the defense must still fail unless it is also proved that the interference was, in the circumstances as they eventually happened, actually necessary, that is to say, that the property sought to be preserved must, but for the interference com- plained of, have suffered injury or destruction. Nor is there anything in my own judgment in Carter v. Thomas, [1893] 1 Q. B. 673, to which I refer only because it is mentioned by Phillimore, J., that conflicts with the views which I have just expressed. What I was there at pains to point out was that in the case of a mere volunteer it would require very special circumstances to justify, on the ground of reasonable neces- sity, his forcible entry into the premises of another against the M^ll of the owner, in order to help in extinguishing a fire. In the present case, the defendant was not a mere volunteer, and therefore no such question arises for consideration. He was the gamekeeper in the service of Mr. Chase, to whom the plaintiff, the landowner, had let the sporting rights over liis estate, including the land on which the fb-e occurred and on which were the heather patches fired by the defendant and the covert sheltering the nesting birds which the defendant sought to protect from the fire by destroying some patches of the heather in advance of the flames. The defendant's fulfillment of a duty to his master, as Hamilton, J., points out, could not affect any right of the plaintiff, but, at the same time, in acting for his master, the defendant was, as against the plaintiff, entitled to stand in the same position as his master as lessee of the sporting rights who had, as tenant, the right to maintain the game by all means which did not involve unreasonable interference with, or damage to, the property of the lessor. Reasonableness — the term which our law in so many cases treats as the test of legality in questions of human conduct — of course includes, when you are con- sidering the legality of the destruction of another's property, the com- parison (inter alia) of the value of that which is destroyed or damaged in order to preserve it. Here, as the judgment pronounced by Philli- more, J., shows, the damage resulting from the defendant's act was not more than nominal. It appears to me that, in considering the reason- ableness of the defendant's conduct in the present case, the jury were warranted in including in the circumstances to which they expressly SECT. III.] COPE V. SHARPE. 601 refer in their second finding the fact that the defendant was not a mere volunteer but, as representing his emploj'er, the plaintiff's tenant, in- vested, as against the plaintiff as well as others, with the right to preserve the sitting pheasants from being burned by reasonable methods. I have so far been dealing with the view of the Divisional Court that a defense of "actual necessity" must be proved in order to establish an answer to the plaintiff's case in this action. But I am further obliged to differ from them in the construction which they appear to have placed upon the second finding of the jury. By that finding the jury in express terms decided that " the method adopted by the defendant for the protection of his master's property was reasonably necessary in the circumstances." The learned judges in' the Divisional Court, if I correctly understand their judgments, have construed this finding to mean only that the defendant reasonably believed that a danger to his master's property existed requiring his interference, but that in fact no such danger existed. I must confess mj'self unable so to interpret it. I do not think this is the fair or natural meaning of the words. The jury, in my view, have not found that the method adopted by the defendant was unnecessary. They have found that it was in fact not necessary; they have found that it was necessary in reason. They have not in either of their findings negatived the existence of an immi- nent danger. Read, as it ought to be, in contrast with the first find- ing that no "actual necessity" existed, the second finding, that a "reasonable necessity" for the defendant's action did exist, must, I think, mean that there was, at the time when, the defendant acted, a danger to the property of the defendant's master, so far imminent that any reasonable person in the circumstances of the defendant would act reasonably in treating it as necessary to adopt the method for the preservation of the property in jeopardy which the defendant adopted. So interpreted, this finding in my opinion gives the defendant, as it was held by the learned county court judge who tried the case, a good defense, and this opinion appears to me to be in accord with the state- ment of the law by Bramwell, B., in Kirk v. Gregory, 1 Ex. D. 55, from which the other members of the court (Amphlett, B., and Cleasby, B.) in no way dissented. I think that this appeal should be allowed.^ Appeal allowed. ^ The concurring opinion of Buckley, L. J., and the dissenting opinion of Vaughan Williams, L. J., are omitted. — Ed. 602 COMMONWEALTH V. DON'AHUE. [CHAP. V. COMMONWEALTH v. DONAHUE. Sdpremk Judicial Court of Massachusetts. 1889. [Reported 148 Massachusetts, 529.] Holmes, J. Tliis is an indictment for robbery, on which the defend- ant has been found guilty of an assault. The evidence for the Com- monwealth was, that the defendant liad bought clothes, amounting to twenty-one dollars and fifty-five cents, of one Mitchelman, who called at the defendant's house, by appointment, for his pay ; that some dis- cussion arose about the bill, and that the defendant went upstairs, brought down the clothes, placed them on a chair, and put twenty' dollars on a table, and told Mitchebnan that he could have the money or the clothes ; that Mitchelman took the money and put it in his pocket, and told the defendant he owed him one dollar and fiftv-five cents, whereupon the defendant demanded his money back, and on Mitchelman refusing, attacked him, threw him on the floor, and choked him until Mitchelman gave him a pocketbook containing twent^'-nine dollars. The defendant's counsel denied the receiving of the pocket- iiook, and said that he could show that the assault was justifiable, under the circumstances of the case, as the defendant believed that lie had a riglit to recover his own mone\' by force if necessary. The presiding justice stated that he should be obliged to rule that the defendant would nf)t be justified in assaulting Mitchelman to get his own mone}', and that he should rule as follows : " If the jury are satis- fied that the defeildant clioked and otherwise assaulted Mitchelman, they would be warranted in finding the defendant guilty, although the sole motive of the defendant was by this violence to get from Mitchel- man b}- force mone}' which the defendant honestl}' believed to be his own." Upon this the defendant saved his exceptions, and declined to introduce evidence ; the jury were instructed as stated, and found the defendant guilty. On the evidence for the Commonwealth, it appeared, or at the lowest the jury might have found, that the defendant off"ered the twenty dollars to Mitchelman only on condition that Mitchslman should accept li)at sum as full payment of his disputed bill, and that Mitchelman took the mone}', and at the same moment, or just afterwards, as part of the same transaction, repudiated the condition. If this was the case, — since Mitchelman, of course, whatever the sum due him, had no right to that particular money except on the conditions on which it was offered (Commonwealth v. Stebbins, 8 Gray, 492), — he took the money wrongfully from the [wssession of the defendant, or the jury might have found thai \\v did, whether the true view be that the defendaht did not give up possession, or that it was obtained from him by Mitchel- man's fraud. Commonwealth v. Devlin, 141 Mass. 423, 431 ; Chisser's SECT. III.] COMMONWEALTH V. DONAHUE. 603 Case, T. Raj'm, 275, 276 ; Regiiia v. Thompson, Leigh & Cave, 225 ; Regina v. Stanley, 12 Cox C. C. 2G9 ; Regina v. Rod way, 9 C. & P. 784 ; Rex v. Williams, 6 C. & P. 390 ; 2 East P. C. u. 16, ss. 110, 113. See Regina v. Cohen, 2 Den. C. C. 249, and cases infra. The defend- ant made a demand, if that was necessary, which we do not imply, before using force. Green v. Goddard, 2 Salk. 641 ; Polkinhorn r. Wright, 8 Q. B. (N. S.) 197; Commonwealth v. Clark, 2 Met. 23, 25, and cases infra. It is settled hy ancient and modern authority- that, under such cir- cumstances, a man may defend or regain his momentarily interrupted possession by the use of reasonable force, short of wounding or the employment of a dangerous weapon. Commonwealth v. Lynn, 123 Mass. 218; Commonwealth v. Kennard. 8 Pick. 133; Anderson v. State, 6 Baxter, 608; State v. Elliot, 11 N. H. 540, 545; Rex v. Milton, Mood. & Malk. 107 ; Y. B. 9 Edw. IV. 28, pi. 42 ; 19 Hen. VL 31, pi. 59 ; 21 Hen. VI. 27, pi. 9. See Seaman v. Cuppledick, Owen, 150 ; Taylor v. Markham, Cro. Jac. 224 ; s. c. Yelv. 157, and 1 Brownl. 215 ; Shingleton v. Smith, Lutw. 1481, 1483 ; 2 Inst. 316 ; Finch, Law, 203 ; 2 Hawk. P. C. c. 60, s. 23 ; 3 Bl. Com. 121. To this extent the right to protect one's possession has been regarded as an extension of the right to protect one's person, with which it is generally mentioned. Baldwin v. Hayden, 6 Conn. 453 ; Y. B. 19 Hen. VI. 31. pL 59 ; Rogers V. Spence, 13 M. & W. 571, 581 ; 2 Hawk. P. C. c. 60, s. 23 ; 3 BL Com. 120, 131. We need not consider whether this explanation is quite adequate. There are weighty decisions which go further than those above cited, and which hardly can stand on the right of self-defence, but involve other considerations of policy. It has been held that, even where a considerable time had elapsed between the wrongful taking of the defendant's property and the assault, the defendant had a right to regain possession by reasonable force, after demand upon the third person in possession, in like manner as he might have protected it without civil liability. Whatever the true rule may be, probably there is no difference in this respect between the civil and the criminal law. Blades v. Higgs, 10 C. B. (N. S.) 713 ; 12 C. B. (N. S.) 501 : 13 C. B. (N. S.) 844; and 11 H. L. Cas. 621 ; Commonwealth v. McCue, 16 Gray, 226, 227. The principle has been extended to a case where the defendant had yielded possession to the person assaulted, through the fraud of the latter. Hodgeden v. Hubbard, 18 Vt. 504. See Johnson V. Perry, 56 Vt. 703. On the other hand, a distinction has been taken between the riglit to maintain possession and the right to regain it from another who is peaceaijly established in it, although the possession of the latter is wrongful, l^obb r. P>os\vcith, Litt. Sel. Cas. 81. Sec Barnes v. Martin, 15 Wis. 240 ; Andre v. Johnson, 6.Blackf. 375; Davis V. Whitridge, 2 Strobh. 232 ; 3 Bl. Com. 4. It is unnecessary to decide whether, in this case, if Mitchelman had taken the money with a fraudulent intent, but had not repudiated the condition until 60-i HODCEDEX V. HUBBARD. [CHAP. V, afterwards, the defendant would have had any other remedy than to hold him to his bargain if he could, even if lie knew that Mitchelman still had the identical uione}' upon his i)erson. If the force used by the defendant was excessive, the jury would have been warranted in finding him guilty. Whether it was excessive or not was a question for them ; the judge could not rule that it was not, as matter of law Commonwealth v. Clark, 2 Met. 23. Therefore the instruction given to them, taken only literally, was correct. But the preliminar}' statement went further, and was erroneous ; and coup- ling that statement with the defendant's offer of proof, and his course after the rulings, we think it fair to assume that the instruction was not understood to be limited, or, indeed, to be directed to the case of excessive force, whicn, so far as appears, had not been mentioned, but that it w-as intended and understood to mean that an}- assault to regain his own money would warrant finding the defendant guilt}'. Therefore the exceptions must be sustained. It will be seen that our decision is irrespective of the defendant's belief as to what he had a right to do. If the charge of robbery had been persisted in, and the difficulties which we have stated could have been got over, we might have had to consider cases like Regina v. Boden, 1 C. & K. 395, 397 ; Regina v. Hemmings, 4 F. & F. 50 ; State V. Hollywa}', 41 Iowa, 200. Compare Commonwealth v. Steb- bins, 8 Gray, 492 ; Commonw^ealth v. McDuffy, 12G Mass. 467. There is no question here of the effect of a reasonable but mistaken belief with regard to the facts. State i\ Nash, 88 N. C. 618. The facts were as the defendant believed them to be. JEkcceptions sustained. : HODGEDEN v. HUBBARD. # Supreme Court of Vermont, 1843. [Reported 18 Vt. 504.] Trespass for assault and battery, and for taking and carrying away a stove, the property of the plaintiff. Plea the general issue, with notice of special matter of defense, and trial by jury, — Rcdfield, J., pre- siding. On trial the plaintiff gave e\4dence, tending to prove, that, on the nineteenth day of September, 1S42, he purchased at the Tyson w^arehouse, in Montpelier, a stove, and gave his promissory note there- for, payable in six months; that the agent, who had charge of the warehouse, was absent at the time, and the sale was made by the de- fendant Hubbard, who was clerk for the agent, as was also the defendant AjTes; tliat on the same day, and soon after the sale, the defendants learned, that the plaintiff' was irresponsible as to property, and started SECT. III.] . HODGEDEN V. HUBBAUD. 605 in pursuit of him, and overtook him about two miles from Montpelier and took the stove from him by force; but it did not appear, how much force w^as used, or its character; but it did appear, that, in the attempt to dispossess the plaintiff of the stove, he drew his knife, and that he was then forcibly held by one of the defendants, while the other took possession of the stove; and the testimony tended to prove, that the resistance of the plaintiff was such, that the defendants used \ao- lence and applied force to his person with gi-eat rudeness and outrage. The defendants then gave evidence, tending to prove that the pur- chase of the stove by the plaintifT was effected by means of his false and fraudulent representations as to his al)ility to pay, and as to the amount of his property; that, among other things, the plaintiff repre- sented, that he owned a farm in Cabot and considerable stock upon it, that he owned the team that he then had with him, and that he carried on a large business manufacturing butter firkins, etc.; that it was only by means of these representations, and others of like character, that Hubbard was induced to sell the stove to the plaintiff on credit; that soon after the delivery of the stove, on the same day, Hubbard learned, upon inquiry, from a person whom he saw from Cabot, that the plaintiff was entirely irresponsible, and that his representations as to his property WTre wholly false; and that the defendants immediately followed the plaintiff, and took the stove from him, and told him that he could have the note by calling for it. The defendants requested the court to instruct the jury, that, if they should find that the purchase of the stove on credit was effected only by means of the false and fraudulent representations of the plaintiff, as above specified, the title to the stove did not vest in the plaintiff, and the defendants, as servants of the agent of the Tyson warehouse, were justified in pursuing the plaintiff and taking the stove from him by force, and that, if they used no more force than was absolutely neces- sary to effect this object, the plaintiff could not reco\er upon his count for an assault and battery. But the court charged the jury that, although the plaintiff was guilty of misrepresentation and fraud, in ob- taining the stove, in the manner attempted to be proved by the de- fendants, yet this would not justify the defendants in forcibly taking the property from him; that the property in the stove would not be changed by the purchase, and the defendants might take it peaceably, wherever they could find it; but that the defendants, having delivered the stove to the plaintiff, could not justify taking it from him by blows inflicted upon his person, or by holding him, but should resort to redress by legal process; and that, if they should find, that the prop- erty in the stove was not changed, for the reason stated, and that the defendants took it by violence, in the manner attempted to be shown by the plaintiff, although they used no more force than was necessary to accomplish that object under the resistance of the plaintiff, they would still be liable in this action; but the court, in that case, recom- 606 HODGEDEN V. HUBBARD. [CHAP. V. mended to the jury to give small damages. Verdict for plaintiff for one dollar damages. Williams, C. J. It is admitted, in this ease, that the property in the stove did not* pass to the plaintiff, that, though the plaintiff' obtained possession of the stove, yet it was by such means of falsehood and fraud, criminal in the eye of the law, as made the possession unlawful, and that, although the consent of the owner was apparently obtained to the delivery of the possession to the plaintiff, yet, as it respects the plaintiff, and so far as the right of property was concerned, no such consent was given. In the cases of Buffington v. Gerrish, 15 Mass. 156, and Badger v. Phinney, lb. 359, it was decided that, under similar cir- cumstances, as between the owner and the person thus obtaining prop- erty, or between the owner and the existing creditors of such person, no property passed out of the real owner, and he might reclaim it, as against such person, or hi;s creditors. In the present case the defendants had clearly a right to retake the property, thus fraudulently obtained from them, if it could be done without unnecessary violence to the person, or without breach of the peace. It is admitted by the counsel for the plaintiff, that a right to re-capture existed in the defendants, if it could be done without vio- lence, or breach of the peace. And how far this qualification of the right to retake property, thus taken, was intended for the security, or benefit, of the fraudulent possessor may admit of some doubt. Who- ever is guilty of a breach of the peace, or of doing unnecessary ^^olence to the person of another, although it may be in the assertion of an un- questioned and undoubted right, is liable to be prosecuted therefor. But the fraudulent possessor is not the protector of the public interest. In the case before us it is stated, that it did not appear "how much force was used, or its character," before the defendants were assaulted by the plaintiff. To obtain possession of the property in question no violence to the person of the plaintiff was necessary, or required, unless from his resistance. It was not like property carried about the person, as a watch, or money; nor did it require a number of people to effect the object. The plaintiff had no lawful possession, nor any right to re- sist the attempts of the defendants to regain the property, of which he had unlawfully and fraudulently obtained the possession. By drawing his knife he became the aggressor, inasmuch as he had no right thus to protect his fraudulent attempt to acquire the stove, and the possession of the same, and it was the right of the defendants to hold him by force, and, if they made use of no unnecessary A-iolence, they were justified; if they were guilty of more, they were liable. Under the \dew of the evidence, as considered and claimed by the defendants, they were entitled to the charge requested. The refusal of the court so to charge was erroneous; and although the court stated to the jury correctly, that the defendants could not justify retaking the property by blows inflicted on the person of the plaintiff", yet tliis 1 SECT. III.] McLEOD V. JONES. 607 was not meeting the request; and the charge was evidently erroneous, when the jury were told, that the defendants would be liable, although they used no more force than was necessary to accomplish the object of retaking the property, under the resistance of the plaintiff. The re- sistance of the plaintiff was unlawful, in regard to the particular species of property, which was then the subject of controversy, under the facts claimed by the defendants, and which must have been found to the satisfaction of the jury, as would seem from their verdict. On the second count in the declaration the plaintiff could have no claim whatever. The defendants were the agents of the true owner; the plaintiff was the wrongdoer, and acquired no right, against the de- fendants, to either property, or possession, if the facts were as stated in the case. The judgment of the county court is reversed. McLEOD V. JONES. Supreme Judicial Court of Massachusetts 1870. [Reported 105 Mass. 403.] Tort for forcibly entering the plaintiff's close in Taunton, and removing and converting to the defendant's use household furniture found therein. At the trial in the Superior Court, before Pitman, J., property in and possession of the close (which was the upper story of a house) by the plaintiff were admitted; and the plaintiff introduced evidence to show that he had hired and occupied the premises as a residence and dwelling for himself and his wife and two children, about two years, when in September, 1868, he took them -on a visit to Fall River, and he himself went to New York on a visit to his father; that he intended to return to Taunton in about four weeks, but for various reasons changed his original design and ceased to reside in Taunton; that three or four days after he went away, "leaving his furniture and household goods in the same state as he used them for housekeeping purposes, and the doors of liis tenement locked," the defendant went to the house with a key that would fit the door, unlocked and entered the tenement, and took and carried away the furnitiire. It appeared " that the plaintiff, while li\ing in Providence, had given to the defendant a bill of sale of a part or the whole of the articles of furniture, and had subsequently brought them with him to Taunton; and that the plaintiff had formerly given to the defendant a mortgage of certain goods owned and used by the plaintiff in his shop, some of which goods the plaintiff testified that he subsequently carried to his house, and were among the goods taken by the defendant." 608 McLEOD V. JONES. [GHAP. V. The defendant claimed all the articles taken by him, under the bill of sale and mortgage, and contended that, from the circumstances proved, he had a right to believe that at the time of the entry the plaintiff did not intend to return to Taunton; and he asked the judge to rule that "if the plaintiff had left the city with his family, leaving household furniture, the defendant's property, in his last place of resi- dence in the city, a hired tenement, and the defendant, having reason- able cause to believe, and believing, that the plaintiff and family did not intend to return, entered said residence in a quiet and peaceable man- ner and took away his goods, causing no other disturbance than was necessary in order to get the same, he would not be liable in this action." The judge refused so to rule ; and ruled that " if the defendant entered the plaintifP's dwelling-house in the manner shown by the plaintiff's evidence above reported, and carried away the goods as shown by the plaintiff's evidence, he would be liable in this action for a forcible en- try, although he went there to get his own property; and that the defendant would have no right to enter the same in such a manner, and for such a purpose, without some license or permission from the plaintiff, express or implied, other than the mere fact that his goods Avere in said premises under the circumstances before stated." The jury returned a verdict for the plaintiff, and the defendant alleged exceptions. Wells, J. The defendant was liable as a trespasser for entering the plaintiff's close, unless he can justify his entry by some legal right, or by some license or permission so to do. The plaintiff's absence will not excuse him. Reasonable cause to believe, and actual belief that the plaintiff and liis family did not intend to return, are no defense. The only question is, whether the ruling of the court below was correct, that " the mere fact that his goods were in said premises under the cir- cumstances stated" did not furnish a sufficient ground from wliich a license, permission or legal right could be inferred. In the decision of this question, we must assume that the defendant's claim would have been sustained, that his title, as mortgagee of all the property taken away by him, was valid, and his mortgage debt un- paid. He had a right then to the possession of the property which he took. But the possession of the plaintiff, as mortgagor, was not wrongful. The goods were rightfully upon his premises. There is nothing to show that the terms of the mortgage, or bill of sale, under which the defendant claimed them, gave him any special authority to enter for the purpose of recovering the property, in any event; nor that the removal of the goods from the shop to the house, or from Providence to Taunton, was inconsistent with the rights of the mortgagee, or against his wishes. The removal from Providence was about two years be- fore the time of this entry. The goods then were rightfully in the custody of the plaintiff, and SECT. III.] McLEOD V. JONES. G09 within his close. The defendant was the owner of the legal title, with a present right of possession. Does that alone justify him in a breach of the plaintiff's close? A majority of the court are of opinion that it does not. One whose goods are stolen, or otherwise illegally taken from him, may pursue and retake them whenever they may be found. No one can deprive him of this right, by wrongfully placing them upon his own close. Patrick v. Colerick, 3 M. & W. 483. Webb v. Beavan, 6 M. & G. 1055, and note. Com. Dig. Trespass D, citing 2 Rol. Ab. 565, 1. 54. Bac. Ab. Trespass F, 1. But if they are deposited upon the land of another, who is not a participant in the wrongful taking, the owner can- not enter upon his land to retake them; unless in case of theft, and fresh pursuit. 20 Vin. Ab. 506, Trespass H, a. 2, pi. 4, 5. So, from the necessity of the case, one whose cattle escape upon the land of an- other may follow and drive them back, without being a trespasser, un- less the escape itself was a trespass. Com. Dig. Trespass D, citing 2 Rol. Ab. 565, 1. 35. In these cases, the law gives the party a right to enter for that par- ticular purpose. In other cases a right or license to enter upon land results, or may be inferred, from the contracts of the parties in relation to personalty. Permission to keep, or the right to have one's personal property upon the land of another, involves the right to enter for its removal. Doty V. Gorham, 5 Pick. 487. Bac. Ab. Trespass F, 1. White v. Elwell, 48 Maine, 360. A sale of chattels, which are at the time upon the land of the seller, will authorize an entry upon the land to remove them, if, by the express or implied terms of the sale, that is the place where the purchaser is to take them. Wood v. Manley, 11 Ad. & El. 34. Nettleton v. Sikes, 8 Met. 34. Giles v. Simonds, 15 Gray, 441. Drake v. Wells, 11 Allen, 141. McNeal v. Emerson, 15 Gray, 384. A license is implied, because it is necessary in order to carry the sale into complete effect; and is therefore presumed to have been in contemplation of the parties. It forms a part of the contract of sale. The seller cannot deprive the purchaser of his property, or drive him to an action for its recovery, by withdrawing his implied permission to come and take it. This proposition does not apply, of course, to a case where a severance from the realty is necessary to convert the subject of the sale into personalty, and the revocation is made before such severance. But there is no such inference to be drawn, when the property, at the time of sale, is not upon the seller's premises ; or when, by the terms of the contract, it is to be delivered elsewhere. And when there is nothing executory or incomplete between the parties in respect to the property, and there is no relation of contract between them affecting it, except what results from the facts of ownership or legal title in one, and pos- 610 McLEOD V. JONES. [CHAP. V. session in the other, no inference of a Hcense to enter upon lands for the recovery of the property can be drawn from that relation alone. 20 Vin. Ab. 508, Trespass H, a. 2, pi. 18. Anthony v. Haneys, 8 Bing. 186. Williams v. Morris, 8 M. & W. 488. We think the authorities cited illustrate and establish these dis- tinctions. It is said in Com. Dig. Trespass D, citing 2 Rol. Ab. 566, 1. 30, that I may not enter lands " for retaking goods, which he, who holds them in common with me, put there; for though a tenant in common may retake goods in common, when the other takes them, yet he cannot justify a trespass to do it." In Wood V. Manley, 11 Ad. & El. 34, where the doctrine that a sale of goods, to be taken on the premises of the seller, gives a license to the purchaser to enter and take them, is laid down, it is guarded by the remark of Patteson, J., "I do not say that a mere purchase will give a license." In Bac. Ab. Trespass F, 1, it is said: "But if J. S. have commanded A. to deliver a beast to J. N. and J. N. go into the close of J. S. to re- ceive the beast, the action does lie; for, as the beast might have been delivered at the gate of the close, the going of J. N. thereinto is not necessary." In the note to Webb v. Beavan, 6 M. & G. 1055, is a citation from the year books, 9 Edw. IV. 35, in which Littleton, J., after laying down the doctrine that a man may enter the close of another to retake his own goods Avrongfully put there, is reported to have said: "But it is otherwise if I bail goods to a man. I cannot enter his house and take the goods, for they did not come there by wrong, but bv the act of us both." It is by the act of both, that goods, upon which the defendant had only a chattel mortgage, leaving the possession rightfully with the plaintiff, were in the plaintiff's house. In 20 Vin. x\b. 507, Trespass H, a. 2, pi. 12, it is said: "If a man takes my goods and puts them upon his land, I may enter and retake them. Contrary upon bailment of goods," citing the above authority of Littleton. A note contains the following: " When a man bails goods to another to keep, it is not lawful for him, though the doors are open, to enter into the house of the bailee and to take the goods, but ought to demand them; and if they are denied, to bring writ of detinue, and to obtain them by law," citing Bro. Ab. Trespass, pi. 208, and 21 Hen. VII. 13. A right to enter the premises of the mortgagor, without legal process, is not essential to the security of the mortgagee of personal property. Permission to do so is not implied, therefore, from the existence of that relation alone. If there was anything in the form of the mortgage or bill of sale, or in the nature and circumstances of the plaintiffs possession of the property, which gave the defendant a right to seek it within the close of the plaintiff, where it had been deposited since the sale of the mortgage or SECT. III.] SALISBURY V. GREEN. 611 bill of sale, it should have been made to appear. The burden was upon the defendant to establish the special right which he set up in justifica- tion of his entry. At the trial, he based his right to enter, solely upon his title to the personal property, and the supposed abandonment of the premises by the plaintiff; and asked the court to rule that that was sufficient. The court held it to be insufficient "without some license or permission from the plaintiff, express or implied." The de- fendant does not show that there was anything in the terms of his bill of sale or mortgage, or in the situation of the property at the time it was made, or in the circumstances of the plaintiff's possession at the time of the entry, from which such license or permission could be im- plied; and he asked no instructions upon the evidence, upon that point, if any existed at the trial. In McNeal v. Emerson, 15 Gray, 384, the property mortgaged was furniture, which remained in the same situation as when the mortgage was made, and the circumstances left the case in the same position substantially as a sale of personal property to be removed by the purchaser. In the case of Heath v. Randall, 4 Cush. 195, the jury must have found, under the instructions given them, that the contract was that the defendant had a right to take the property away any day until paid for; which was plainly understood to mean a right to take it from the premises of the bailee. It is to be observed also, that in that case the question pressed in the argument, and to which the discussion by the court was mainly directed, was that of the right to terminate the bailment wnthout demand of the balance due upon the conditional purchase; the right of entry upon the plaintiff's close being considered only incidentally. A majority of the court are of opinion that the facts reported in this case are not sufficient to sustain the justification relied on by the de- fendant, and that the instructions upon that point were correct. If the defendant established his title to the property taken away, he would of course be liable only for such injury as he did to the plaintiff's house. But no question appears to be raised as to the measure of damages, ajid we are to presume that proper instructions upon that point were given. Exceptions overruled. SALISBURY V. GREEN. Supreme Court of Rhode Island, 1892. [Reported 17 R. I. 758.] Per Curl\m. At the trial of this case in the Court of Common Pleas, the plaintiff requested the court to charge the jury "that, if the de- fendant entered upon the premises of the plaintiff without the permis- G12 VINCENT V. LAKE ERIE TRANSPORTATION CO. [CHAP. V. sion of the plaintiff, then the plaintiff is entitled to a verdict." The court refused this request and charged the jury "that the defendant had a right to enter upon the plaintiff's premises to get possession of and recover his property, using no more force than was necessary, and committing no breach of the peace." We think this was error. The horse in question was, and for some time previous had been, in the peace- able possession of the plaintiff, under a claim of right, and hence the defendant, although claiming that the horse was his, was not war- ranted in entering upon the plaintiff's premises without his permission, and taking forcible possession thereof, against the will of the plaintiff. For, even if the defendant was in fact the legal owner of the horse, coupled with a present right of possession, that alone did not justify him in a breach of the plaintiff's close. If the horse had been stolen or otherwise illegally taken from the defendant, it is stating it within the established rule to hold that he woidd have a right to pursue and re- take it wherever it might be found, pro\dded he could do so without a breach of the peace. See Cooley on Torts, 50, Tit. Recaption or Reprisal. In this case, however, it appears that the defendant, some time previous to the occurrence in question, had delivered possession of said horse to one Whitfield Dyer, under an agreement to sell it to him, and that said Dyer's father had exchanged said horse for another with a third person, from whom the plaintiff bought it. The A\Tongful taking of the property from the possession of the owner, therefore, together with the fresh pursuit which must appear in order to warrant the recaption thereof by force, was not shown in this case. See Kirby V. Foster, 17 R. I. 437; McLeod v. Jones, 105 Mass. 403. As there must be a new trial of the case, for the reason above given, it becomes unnecessary for us to decide whether or not the verdict was against the evidence. Petition for new trial granted. VINCENT V. LAKE ERIE TRANSPORTATION CO. Supreme Court of Minnesota, 1910. [Reported 109 Minn. 456.] O'Brien, J. The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiffs' dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about ten o'clock P. .\i., when the unloading was completed, had so grown in violence that the wind was then moving at fifty miles per hour and continued to increase during the night. There is some e\ddence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the t SECT. III.] VINCENT V- LAKE EKIE TRANSPORTATION CO. 613 hour mentioned until the morning of the twenty-ninth, when the storm abated, and during that time no master would have been jus- tified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Reynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, in- stead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was constantly being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500. We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted his vessel to drift away from it. One witness testified upon the tri^l that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that couM have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship. It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in tliat position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which sur- passed in violence any which might have reasonably been anticipated. The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held lial)le for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion 614 VINCENT V. LAKE ERIE TRANSPORTATION CO. [CHAP. V. the only question for the jury was the amount of damages which the plaintiffs iVere entitled to recover, and no complaint is made upon that score. The situation was one in which the ordinary rules regulating prop- erty rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to l)e held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs' dock, the plaintiffs could not have recov- ered. Again, if while attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted. In Dupee v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A (N. S.) 485, this court held that where the plaintiff, while lawfully in the defendants' house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth? In Ploof V. Putnam (Vt.) 71 Atl. 188, 20 L. R. A. (N. S.) 152, the Supreme Court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in dam- ages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had'been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done. Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; l)ut it could hardly be said that the ol)ligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made. Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon SECT. III.] VINCENT V. LAKE ERIE TRANSPORTATION CO. 615 the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming neces- sity of the situation, the owner of the cable could not recover its value. This is not a case where life or property was menaced by any object or thing belonging to the plaintiffs, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs' property for the purpose of preserving its own more valuable prop- erty, and the plaintiffs are entitled to compensation for the injury done. Order affirmed. Lewis, J. (dissenting). I dissent. It was assumed on the trial before the lower court that appellant's liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is con- clusive that appellant moored its boat at respondents' dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own. In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables? I am of the opinion that one who constructs a dock to the navi- gable line of waters, and enters into contractual relations with the owner of a vessel to moor the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest. Jaggard, J. I concur with Lewis, J. 616 OILMAN V. EMERY. [CIIAP. V. OILMAN V. EMERY. Supreme Court of Maine, 1867. [Reported 54 Me. 460.] On Exceptions. Trespass to recover damages to plaintiff's horse and wagon. It appeared that the phxintift' started with his brother to drive two heifers, from his stable, in Waterville, to another town. As they were passing defendant's premises, leading plaintiff's horse attached to his wagon, and driving the heifers, one of the latter turned and ran back. Whereupon, the plaintiff' hitched his horse to a shade tree, twenty-two inches in diameter, standing upon the defendant's prem- ises, but within the limits of the highway, and went back for his heifer. The defendant seeing plaintiff's horse so hitched, removed him and hitched him to a post a few feet from the tree. When the plain- tiff was returning for his horse, some twenty minutes afterwards, he saw his horse running through the streets, with halter dragging, and the wagon broken. There was no evidence as to the precise manner in which the defendant hitched the horse, or as to how he was freed from the post. Plaintiff moved to amend by adding a count alleging a wrongful taking by the defendant, a negligent use and control of said horse and wagon, whereby they became injured and unfit for use. The presiding judge overruled the motion, and ordered a nonsuit, and the plaintiff alleged exceptions. Walton, J. Travelers have no right to hitch horses to shade trees. It is well known that most horses have a propensity to gnaw whatever they are hitched to. Hitching posts of the hardest wood have to be capped with iron or they are soon so badly gnawed as to be ruined. Too many beautiful shade trees, planted at great expense and watched for many years with anxious care, have been destroyed by having horses hitched to them, not to know that the practice is exceedingly dangerous. W'hen, therefore, the owner of a shade tree finds a horse hitched to it, he may immediately remove him to a place of safety, and such removal will not be a trespass. In this case the defendant found a horse hitched to one of his shade trees. He unhitched him and led him a few feet and hitched him to a post set in the ground on purpose to hitch horses to. This was not an act of trespass, and probably the plaintiff' would not have complained of it, but for the fact that his horse afterwards broke loose from the post and ran away and broke his wagon. But there is no evidence that the defendant did not use ordinary care in hitching the horse, and the plaintiff's writ does not charge him with negligence; it simply charges SIXT. III.] NESBETT V. WILBUK. 617 him with trespass vi et armis, in taking and carrying away the horse, buggy, etc. The presiding judge, being of opinion that the action could not be maintained, ordered a nonsuit, to wliich the plaintiff excepted. We can- not doubt that the nonsuit was rightly ordered. The plaintiff moved for leave to amend his declaration by insert- ing a new count charging the defendant with negligence in not hitch- ing the horse securely. Leave was not granted. To this refusal the plaintiff also excepted. Exceptions do not lie to the refusal of a judge to allow an amendment, unless the l)ill of exceptions show that he ruled, as matter of law, that the proposed amendment was one which could not be allowed. The bill of exceptions does not show that he so ruled in this case. It is to be presumed therefore that he ruled, as matter of discretion, not to allow the amendment, because under the circumstances justice would not in his opinion be thereby promoted. To such a ruling, as before stated, exceptions do not lie; and it is not important to determine whether the proposed amendment was one which could legally be made or not. Exceptions overruled. Appleton, C. J., Cutting, Dickerson, Barrows, and Tapley, JJ., concurred. NESBETT V. WILBUR. Supreme Judicial Court of Massachusetts, 1900. [Reported 111 Mass. 200.] Holmes, C. J. This is an action for killing a dog. The judge before whom the case was tried found that the dog was engaged in killing the defendant's hens, that the defendant rightly believed that there was no other way to save them than to kill the dog, and that he was justified in doing so. The plaintiff excepted to a refusal to rule that our stat- utes took away the common law, and that, not having complied with the statutes, the defendant was liable. The provision in Pub. Sts. c. 102, § 94, does not take away the rights of the defendant at common law. That section gives a right to "any person" to kill a dog foimd out of the inclosure or immediate care of its owner, worrying neat cattle, sheep, or lambs. Its object is "to rid society of a nuisance by killing the dog." Cummings v. Perham, 1 Met. 555, 557. Blair v. Forehand, 100 Mass. 136, 143. It does not touch the rights of an owner in defense of his property. Our legis- lation as a whole discloses no scheme of a nature to exclude those rights. 618 EX PARTE MINOR. [cHAP. V. Taken strictly, the exceptions do not open a question concerning the common law, nor is one argued. We need say no more than that the finding for the defendant was justified. No doubt such a justification as that relied on depends upon a number of variable facts: the immi- nence and nature of the danger, the kind of property in peril, from whom or what the danger proceeds, the relative importance of the harm threatened and that which is done in defense. Compare, for instance, Clark v. Keliher, 107 Mass. 406, with the cases cited below. But these considerations and comparisons are all eliminated by the judge's finding that the defendant was justified. There is nothing which enables us to say or leads us to think that he was wrong. Wad- hurst V. Damme, Cro. Jac. 45. Wright v. Ramscot, 1 Wms. Saund. 84. Barrington v. Turner, 3 Lev. 28. Janson v. Brown, 1 Camp. 41. Liver- more V. Batchelder, 141 Mass. 179. Leonard v. Wilkins, 9 Johns. 233. Brill V. Flagler, 23 Wend. 354. Aldrich v. Wright, 53 N. H. 398. Hub- bard V. Preston, 90 Mich. 221. Exceptions overruled. EX PARTE MINOR. Supreme Court of Alabama, 1919. [Rsported 8.3 So. Rep. 475.] Action by Phillip B. Minor against Thomas W. Coleman for damages for killing a dog. The Court of Appeals reversed a judgment for the plaintiff, and the plaintiff petitions for certiorari. Plea 4 was as follows: Comes the defendant, and for a further plea to plaintiff's com- plaint as amended and separately to each count thereof says that when plaintiff's dog was shot by Jim Ward the dog was on defendant's premises and was in full pursuit of defendant's guineas, and that it was necessary, or appeared to be so to a reasonable man, to kill the dog to save the life of the guinea or from serious bodily harm. The plaintiff demurred to this plea.' SoMERViLLE, J. We agree with the holding of the Court of Appeals that the defendant's fourth plea was not subject to the grounds of demurrer interposed, and that its elimination by the trial court on de- murrer was erroneous. The relative values of the dog that was killed and the guinea fowls to be protected by his killing has been held to be " a proper circumstance for the jury to consider in arri^^ng at a conclusion whether the defense was a reasonable one under the circumstances." Kershaw r. McKown, 196 Ala. 123, 72 South. 47. But there is no rule of law that the defense against liability for killing the dog must have been based upon a show- ing that the fowls thus protected were in value equal to or not greatly less than the value of the dog. Kershaw v. McKowii, supra. That 1 This statement of facts is abridged. SECT. III.] GOODWIN V. AVERY. 619 question is comprehended in the issue of reasonable necessity for the killing, and need not be alleged in the plea. But we think an important limitation upon the rule must be ob- served, viz., that the jury must have regard for relative values as they reasonably appeared at the time to the defendant. Certainly he could not be convicted of an unreasonable defense of his poultry because of valuable qualities in the trespassing dog, Avhether of pedigree or train- ing, not apparent to the ol)servation of a man of ordinary intelligence, and not ordinarily inherent in dogs of a similar appearance. . . . If the consideration by the jury of relative values, as affecting the reasonableness of the killing, in such cases as this, had not already been approved by this court, the writer would be inclined to the view that the owner of domestic animals or poultry kept by him upon his omti premises may lawfully slay any trespassing animal if that be necessary to preserve his own, and that his right to do so cannot be qualified by any consideration of comparative values. See the very able and in- teresting discussion of the subject by Doe, J., in Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339. ... ^ Petition denied- GOODWIN V. AVERY. Supreme Court of Errors, Connecticut, 1858. [Reported 26 Co7m. 585.] Trespass, for an assault and battery, tried to the jury on the general issue. The plaintiff and defendant were hack-drivers. A Mr. Prince, in making preparations for the funeral of a child, had employed one Potter to superintend the arrangements for the funeral and to procure the necessary carriages, and Potter, in pursuance of his directions, had engaged the defendant, among others, to attend with his hack. Pre- vious to the funeral, a brother of Mr. Prince, without the knowledge of Potter, had engaged the plaintiff to attend the funeral with his car- riage. The plaintiff and defendant both attended with their carriages, and the injuries which the plaintiff claimed to have received, were the consequences of a strife between them to obtain a certain position in the funeral procession. The defendant offered evidence to prove, that he arrived at the funeral in his carriage previous to the arrival of the plaintiff, and took a position in the public street in front of the house where the funeral was to be held; that a person by the name of Licet, the driver of an- other carriage, took a position behind the defendant; that while the defendant and Licet were thus arranged in line in the procession that was to be formed, Potter gave directions to the defendant to drive into and let Licet take his place, and gave directions to the defendant 620 GOODWIN V. AVERY. [CHAP. V. to take the place next behind Licet; that thereupon the defendant turned his carriage round for the purpose, and while he was thus turn- ing, the plaintiff arrived and occupied the place with his carriage, — Potter at this time having gone into the house; that thereupon the defendant informed the plaintiff that Potter, who had charge of the funeral arrangements, had assigned to him the place the plaintiff then occupied, and requested him to back his team and let him take the place; that the plaintiff refused to leave the place or let the defendant occupy the same; that the defendant's carriage was at this time in an angling position with a line running with the street, with the heads of his horses in advance of the heads of the plaintiff's horses, and near the back of Licet's carriage; that while in this position the defendant was standing by the heads of his horses, holding them by the bits, and the plaintiff was sitting in his carriage, when the defendant requested Licet, without the knowledge of the plaintiff, to drive his carriage for- ward; that Licet drove forward, and the defendant caused his horses to move forward at the same instant to occupy the place left vacant; that after his horses began to move forward to occupy the place, the plaintiff discovered his design and began whipping his, the plaintiff's, horses; that the plaintiff's horses started forward, and the defendant being at the time in advance of them with his own horses, the horses of the plaintiff struck the defendant, and the pole of the plaintiff's carriage hit him in the back, hurting him considerably ; that thereupon the defendant took the horses of the plaintiff by the bridle to keep them from being driven by the plaintiff upon him; that thereupon the plaintiff commenced beating him with his whip over the head and shoulders, and that in order to protect himself from the attack of the plaintiff, he committed the acts of which the plaintiff complained, doing no more than was reasonably necessary, under the circumstances, for his self-defense. The plaintiff offered evidence to prove, that after he had occupied the place behind Licet with his carriage, and when the defendant requested him to leave the place and let him occupy the same, he informed the defendant that he would leave the place if Potter should so direct; and that when Licet began to move his car- riage forward, he caused his own horses to move forward at the same time, and that the defendant' thereupon seized his, the plaintiff's, horses by the bridle and forced them back, to prevent the plaintiff from occupying the place left vacant by Licet; and that if he struck the de- fendant with his whip, it was unintentional. Potter did not know that the plaintiff had been engaged, or had arrived to attend the funeral, until after the affray. L^pon the various claims of the parties the court charged the jury substantially as follows: — "It seems admitted in this case that an assault and battery was committed by the defendant upon the plain- tiff, for which the defendant would be responsible in damages, unless justified upon the principle of self-detense. In such cases it becomes SECT. III.] GOODWIN V. AVERY. 621 important to ascertain, if we can, which party was in the right, and which in the wrong, in the commencement of the affray. The parents of the deceased child had the right to a reasonable occupancy of the public street in front of their house, for the purpose of forming the funeral procession of their child. The use and occupancy of the car- riages they had employed being theirs for the occasion, they conse- quently had the right to direct in what order those carriages should be placed in the procession; and the drivers of the carriages, being them- selves in their employ, were under obligations to conform to their directions. The parents, having thus the control of the carriages they had employed, might engage the ser^'ices of another (as is usual on such occasions), to make those directions for them; and the directions of the person thus employed would be considered as the directions of the parents. It is admitted in this case that Potter was thus employed, and the fact was know^n by the plaintiff and the defendant previously to the affray. You will then inquire, in the first place, whether Potter had directed the defendant to take the place in the procession next after Licet. If he had so directed, and the defendant informed the plaintiff to that effect, it was the duty of the plaintiff to have allowed the defendant to occupy the place; and when Licet moved his carriage forward, and the defendant proceeded to occupy the place thus left vacant, if the plaintiff drove his carriage forward to prevent the defend- ant from thus occupying the place, he was in the wrong, and I think the defendant would be justified in gently taking the horses of the plaintiif by the bridle and stopping them, if he did no more; and if the plaintiff then proceeded to inflict an assault and battery upon the de- fendant, the defendant might repel the assault, doing no more than was reasonably necessary, under the circumstances, to defend himself. If the defendant carried his defense further than was reasonably neces- sary under the circumstances, he would be liable for the excess. If you find that Potter had not directed the defendant to occupy the place next l)ehind Licet, then, in order to ascertain which party was in the wrong in the commencement of the affray, you will consider which party first proceeded to \'iolence. Under ordinary circumstances the right of one person to the public highway, for public highway purposes, is as good as that of another. The highway is for the public — for one and all. But when one person occupies a particular part of the highway for highway purposes, he has an exclusive right to that part of the highway a reasonable length of time, under all the circumstances. Again, under ordinary circumstances, if two persons in carriages seek to occupy a part of the highway which, as yet, is unoccupied by either, the party who can peaceably occupy the place first, will be entitled to it for the time being; but he would not be justified in resorting to vio- lence, either upon the person or property of the other, in order to occupy the place first. The one would not be justified in dri\-ing his horses upon the other, in order to occupy the place first; neither would the 622 GOODWIN V. AVERY. [cHAP. V. Other be justified in seizing the horses of the first and forcing them back for the same purpose. The party, under such circumstances, who first resorted to force and violence, would be in the wrong, and that ■ violence might be lawfully resisted by the other, doing no more than ^ was reasonably necessary, under the circumstances, to defend himself; while the other, being in the wrong, would be responsible in damages for whatever injury he might occasion, while his adversary kept within the proper limits of self-defense." The jury returned a verdict for the defendant, and the plaintiff moved for a new trial for error in the charge of the court. Stores, C. J. No complaint is made of the latter part of the charge below, which was founded on the supposition that, at the time of the affray between the parties, the part of the highway where it occurred was not in the occupation of any person, and that the parties were struggling for the possession of it. The argument before us has pro- ceeded on the assumption that Mr. Prince was then, by his servants, the drivers of the carriages who were engaged by him to attend the funeral of his child, in the occupancy of the place, for the purpose of forming the procession on that occasion; and that the order in which the carriages should be formed in the procession was by him confided to Mr. Potter, who, it is admitted, became thereby his agent for that purpose, and whose directions in respect to it were therefore in law those of Mr. Prince himself. The latter being thus in the possession of that part of the highway, for what was clearly a lawful purpose, had a right, either personally or through Mr. Potter, to direct as to the places in the procession which the carriages engaged by him should occupy, and the drivers therefore had a right to follow those directions; and if, in conforming or endeavoring to conform to them, they were prevented from doing so or obstructed by the plaintiff (who was not in the employ of Mr. Prince or acting by his direction, and therefore had no right to interfere with him or his servants in these funeral arrange- ments), they had a right to oppose such acts of the plaintiff, or to de- fend themselves against any injury from him, by as much force as was necessary in order to enable themselves to occupy the place in the pro- cession assigned to them. The proper inquiries on this part of the case, were — first, whether the defendant was directed by Potter to occupy the place, and was, while occupying or endeavoring to occupy it, obstructed by the plaintiff, — and secondly, if he was so disturbed, whether he used unnecessary force in obtaining or keeping the place. And these questions were submitted by the court below, and with great clearness, to the jury. In one respect, perhaps, the charge was over-favorable to the plaintiff. It required the defendant to prove, not only that Potter had directed the defendant to occupy the place for which the parties were struggling, but also that the defendant had informed the plaintiff to that effect. It is questionable whether the plaintiff had strictly any right to such information from the defendant; SECT. IV.] BROWN V. KENDALL. 623 for if the latter had, by Potter's directions, a right to take that place, it would seem that he could not lawfully be deprived of it by the plain- tiff, whether it was made known to him by the defendant or not. This point, however, has not been made, and it is unnecessary to notice it further. We discover no error in the charge of which the plaintiff can complain, and therefore do not advise a new trial. In this opinion the other judges concurred. New trial not advised. SECTION IV. Protection from Consequences of Permitted Acts. BROWN v. KENDALL. Supreme Judicial Court, 1850. [Reported 6 Ciish. 292.] This was an action of trespass for assault and battery, originally commenced against George K. Kendall, the defendant, who died pend- ing the suit, and his executrix was summoned in. It appeared in evidence, on the trial, which was before Wells, C. J., in the court of common pleas, that two dogs, belonging to the plaintiff and the defendant, respectively, were fighting in the presence of their masters; that the defendant took a stick about four feet long, and com- menced beating the dogs in order to separate them; that the plaintiff was looking on, at the distance of about a rod, and that he advanced a step or two towards the dogs. In their struggle, the dogs approached the place where the plaintiff was standing. The defendant retreated back- wards from before the dogs, striking them as he retreated; and as he approached the plaintiff, with his back towards him, in raising his stick over his shoulder, in order to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury. Whether it was necessary or proper for the defendant to interfere in the fight between the dogs ; whether the interference, if called for, was in a proper manner, and what degree of care was exercised by each party on the occasion; were the subject of controversy between the parties, upon all the evidence in the case, of which the foregoing is an outline. The defendant requested the judge to instruct the jury, that "if both the plaintiff and defendant at the time of the blow were using ordinary care, or if at that time the defendant was using ordinary care and the plaintiff was not, or if at that time both plaintiff and 624 BROWN v. KEXDALL. [cHAP. V. defendant were not using ordinary care, then the plaintiff could not recover." The defendant further requested the judge to instruct the jury, that, " under the circumstances, if the plaintiff was using ordinary care and the defendant was not, the plaintiff could not recoA'er, and that the burden of proof on all these propositions was on the plaintiff." The judge declined to give the instructions, as above requested, but left the case to the jury under the following instructions: "If the de- fendant, in beating the dogs, was doing a necessary act, or one which it was his duty under the circumstances of the case to do, and was doing it in a proper way; then he was not responsible in this action, provided he was using ordinary care at the time of the blow. If it was not a necessary act; if he was ndt in duty bound to attempt to part the dogs, but might with propriety interfere or not as he chose; the defendant was responsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word inevitable not in a strict but a popular sense." " If, however, the plaintiff, when he met with the injury, was not in the exercise of ordinary care, he cannot recover, and this rule applies, whether the interference of the defendant in the fight of the dogs v.^as necessary or not. If the jury belicA'c, that it was the duty of the de- fendant to interfere, then the burden of proving negligence on the part of the defendant, and ordinary care on the part of the plaintiff, is on the plaintiff. If the jury believe, that the act of interference in the fight was unnecessary, then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of the plaintiff, is on defendant." The jury imder these instructions returned a verdict for the plain- tiff; whereupon the defendant alleged exceptions. Shaw, C. J. This is an action of trespass, ri et armis, brought by George Brown against George K. Kendall, for an assault and battery; and the original defendant having died pending the action, his execu- trix has been summoned in. The rule of the common law, by which this action would al)ate by the death of either party, is reversed in this commonwealth by statute, which provides that actions of trespass for assault and battery shall sur\'ive. Rev. Sts. c. 93, § 7. The facts set forth in the bill of exceptions preclude the supposi- tion, that the blow, inflicted by the hand of the defendant upon the person of the plaintiff, was intentional. The whole case proceeds on the assumption, that the damage sustained by the plaintiff, from the stick held by the defendant, was inad\ertent and unintentional; and the case involves the question how far, and under what qualifications, the party by whose unconscious act the damage was done is responsible for it. We use the term "unintentional" rather than involuntary, be- cause in some of the cases, it is stated, that the act of holding and using SECT. IV.] ' BROWX V. KEXDALL. 625 a weapon or instrument, the movement of which is the immediate cause of hurt to another, is a voluntary act, although its particular effect in hitting and hurting another is not within the purpose or intention of the party doing the act. It appears to us, that some of the confusion in the cases on this sub- ject has grown out of the long-vexed question, under the rule of the common law, whether a party's remedy, where he has one, should be sought in an action of the case, or of trespass. This is very distinguish- able from the question, whether in a given case, any action will lie. The result of these cases is, that if the damage complained of is the immediate effect of the act of the defendant, trespass vi rt armis lies; if consequential only, and not immediate, case is the proper remedy. Leame v. Bray, 3 East, 593; Hugget v. Montgomery, 2 X. R. 446, Day's Ed. and notes. In these discussions, it is frequently stated by judges, that when one receives injury from the direct act of another, trespass will lie. But we think this is said in reference to the question, whether trespass and not case will lie, assuming that the facts are such, that some action will lie. These dicta are no authority, we think, for holding, that damage received by a direct act of force from another will be sufficient to main- tain an action of trespass, whether the act was lawful or unlawful, and neither wilful, intentional, or careless. In the principal case cited, Leame v. Bray, the damage arose from the act of the defendant, in dri\ang on the wrong side of the road, in a dark night, which was clearly negligent if not unlawful. In the course of the argument of that case (p. 595), Lawrence, J., said: "There certainly are cases in the books, where, the injury being direct and immediate, trespass has been holden to lie, though the injury was not intentional." The term "injury" implies something more than damage; but, independently of that consideration, the proposition may be true, because though the injury was unintentional, the act may have been unlawful or negli- gent, and the cases cited by him are perfectly consistent with that sup- position. So the same learned judge in the same case says (p. 597), "No doubt tre'spass lies against one who drives a carriage against an- other, whether done wilfully or not." But he immediately adds, " Sup- pose one who is driWng a carriage is negligently and heedlessly looking about him, without attending to the road when persons are passing, and thereby runs over a child and kills him, is it not manslaughter? and if so, it must be trespass; for every manslaughter includes tres- pass;" showing what he understood by a case not wilful. We think, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf, that the plaintiff must come prepared with evidence to show either that the iutrntion was unlawful, or that the defendant was in fault: for if the injury was unavoidable, and the con- duct of the defendant was free from blame, he will not be liable. 2 Greenl. Ev., §§ 85 to 92; Wakeman v. Robinson, 1 Bing. 213. If. in 626 BROWN V. KENDALL. [cHAP. V. the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom. Davis v. Saunders, 2 Chit. R. 639; Com. Dig. Battery, A (Day's Ed.) and notes; ^'incent v. Stinehour, 7 Verm. 69. In applying these rules to the present case, we can perceive no reason why the instructions asked for by the defendant ought not to have been given; to this effect, that if both plaintiff and defendant at the time of the blow were using ordi- nary care, or if at that time the defendant was using ordinary care, and the plaintiff was not, or if at that time, both the plaintiff and defendant were not using ordinary care, then the plaintiff could not recover. In using this term, ordinary care, it may be proper to state, that what constitutes ordinary care will vary with the circumstances of Cases. In general, it means that kind and degree of care, which pru- dent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger. A man, who should have occasion to discharge a gun, on an open and extensive marsh, or in a forest, would be required to use less circum- spection and care, than if he were to do the same thing in an in- habited town, village, or city. To make an accident, or casualty, or as the law sometimes states it, inevitable accident, it must be such an accident as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency, and in the circum- stances in which he was placed. We are not aware of any circumstances in this case, requiring a dis- tinction between acts which it was lawful and proper to do, and acts of legal duty. There are cases, undoubtedly, in which officers are bound to act under process, for the legality of which they are not re- sponsible, and perhaps some others in which this distinction would be important. We can have no doubt that the act of the defendant in attempting to part the fighting dogs, one of which was his own, and for the injurious acts of which he might be responsible,, was a lawful and proper act, which he might do by proper and safe means. If, then, in doing this act, using due care and all proper precautions necessary to tlie exigency of the case, to avoid hurt to others, in raising his stick for that purpose, he accidentally hit tlie plaintiff in his eye, and wounded him, this was the result of pure accident, or was involuntary and un- a\'oidable, and therefore the action would not lie. Or if the defendant was chargeable with some negligence, and if the plaintiff was also chargeable with negligence, we think the plaintiff cannot recover with- out showing that the damage was caused wholly by the act of the de- fendant, and that the plaintiff's own negligence did not contribute as an efficient cause to produce it. The court instructed the jury, that if it was not a necessary act, and the defendant was not in duty bound to part the dogs, but might with propriety interfere or not as he chose, the defendant was responsible SECT. IV.] BROWN V. KENDALL. 627 for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word not in a strict but a popular sense. This is to be taken in connection with the charge afterwards given, that if the jury be- lieved, that the act of interference in the fight was unnecessary (that is, as before explained, not a duty incumbent on the defendant), then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of plaintiff, was on the defendant. The court are of opinion that these directions were not conformable to law. If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care, adapted to the exigency of the case, and therefore such want of due care became part of the plaintiff's case, and the burden of proof was on the plaintiff to establish it. 2 Greenl. Ev., § 85; Powers v. Rus- sell, 13 Pick. 69, 76; Tourtellot v. Rosebrook, 11 Met. 460. Perhaps the learned judge, by the use of the term extraordinary care, in the above charge, explained as it is by the context, may have intended nothing more than that increased degree of care and diligence, which the exigency of particular circumstances might require, and which men of ordinary care and prudence would use under like circumstances, to guard against danger. If such was the meaning of this part of the charge, then it does not differ from our views, as above explained. But we are of opinion, that the other part of the charge, that the burden of proof was on the defendant, was incorrect. Those facts which are essential to enable the plaintiff to recover, he takes the bur- den of proving. The evidence may be offered by the plaintiff or by the defendant; the question of due care, or want of care, may be essen- tially connected with the main facts, and arise from the same proof; but the eff'ect of the rule, as to the burden of proof, is this, that when the proof is all in, and l)efore the jury, from whatever side it comes, and whether directly proved, or inferred from circumstances, if it appears that the defendant was doing a lawful act, and unintentionally hit and hurt the plaintiff, then unless it also appears to the satisfaction of the jury, that the defendant is chargeable with some fault, negligence, carelessness, or want of prudence, the plaintiff fails to sustain the burden of proof, and is not entitled to recover.^ • New trial ordered. 1 See Morris v. Piatt, 21 Conn. 75. — Ed. 628 MOSES V. DUBOIS. [chap. v. MOSES V. DUBOIS. Court of Appeals, South Carolina, 1838. [Reported 6 Cush. 292.] This was an action for false imprisonment, against the captain of a steamboat, for carrvang Sol. Moses (deputy sheriff), to Norfolk, against his will. The plaintiff had a bail writ of Squire & Rogers v. one Dicker- son, who was a passenger in defendant's steamboat; he went on board to arrest Dickerson, just as the steamboat was about to leave the wharf; informed the captain that he had a prisoner on board, and re- quested him to wait until he obtained assistance. But the usual time of departure ha\'ing passed, the boat went into the stream (some dis- tance from the wharf), and stopped. The plaintiff served the writ, but Dickerson resisted, and the plaintiff demanded assistance of the defendant and the passengers, but they refused their aid. He then demanded to go ashore for assistance. This also the captain refused, but offered to send him and his prisoner ashore; but as the plaintiff could not take Dickerson with him, he declined going. The captain then departed for Norfolk. When opposite Fort Moultrie, the plain- tiff requested to be sent ashore; but the captain answered it was then too late; and took him to Norfolk and back, for which the plaintiff was required to pay $40 passage money. In the meantime he lost the ser\ang of writs, &c., which was estimated at $50. He was gone about two weeks, and demanded vindictive damages, for such violation of his personal liberty. No actual violence to his person was offered. His Honor charged the jury. 1st. That neither the captain nor passengers, were under any legal oi)ligation to assist the deputy sheriff in taking Dickerson, under the ci\il process of a bail writ, although they might have been justified, if they had chosen so to do. 2d. That there being no positive violence offered to the person of the plaintiff, the jury could not find damages against the captain, unless he had wilfully taken the plaintiff from his proximity to the wharf, where he might, perhaps, have obtained assistance of the sheriff's offi- cers, or of other persons, and had done this with a view to prevent or lessen the chances of such assistance; that in this way, he might have connived at the escape and promoted the detention of the plaintiff, so as to constitute his imprisonment — of this, the jiiry were to judge. 3d. That although the captain had offered to send the plaintiff and his prisoner ashore, after the steamer had got into the stream, and al- though the plaintiff had refused to go without Dickerson, whom he could not command; yet, as the captain afterwards refused to land the plaintiff ashore, when he desired it (opposite Fort Moultrie), his conduct afforded some evidence of management to detain him, and to } SECT. IV.] MOSES V. DUBOIS. 629 cairy him to Norfolk, against his will. Which management, if the jury believed it from the whole conduct of the captain, might amount to a false imprisonment, and support the action, although no xaolence was done to the person. Finally, that although the defendant was in no way bound to assist the deputy sheriff, and had conducted ci\'illy enough, that his swinging off the boat from the wharf so quickly, after the plaintiff announced his business — and his afterwards refusing to send him ashore, savored of a disposition to frustrate his efforts, or might arise from a collusion with Dickerson to favor his escape. But the jury were to judge whether it amounted in fact to wilful and un- lawful detention, or false imprisonment, and if so, to find for the plain- tiff; otherwise for the defendant. The jury returned a ^'erdict of SI 00. The defendant appealed, and moved for a new trial, on the following grounds : 1st. The defendant was under no obligation to postpone his ^■oyage, until the plaintiff should think fit to leave his vessel. 2d. His Honor charged the jury that they might find for the plain- tiff, on the ground of collusion betv/een the defendant and Dickerson, and left it to the jury to say whether there was or was not collusion; whereas, it is respectfully submitted, that as no evidence of collusion was offered, nor even any from which collusion might be inferred, the only question proper to be left to the jury was, whether the defendant, before he proceeded on his voyage, allowed the plaintiff a fair oppor- tunity of deciding whether he would go ashore or not. 3d. The verdict is palpably against evidence, and opposed to the plainest rules of justice. Earle, J., delivered the opinion of the court. The lines of a separation between the injuries which are redressed by actions of trespass vi rt armis, and those which are redressed by actions on the case, are often so slightly defined as to be almost imperceptible. But it is oftener difficult to distinguish between injuries that are imme- diate and such as are consequential, than such as are committed with force, and such as are without force. The essential and invariable ground of separation between trespass and case, is the force which is always necessary to sustain an action of trespass ri et arvns, whether to the person or to the property. That the evidence in this case would authorize a jury to give damages, may be conceded without deciding the question, for it is not every injury ex delicto that will sustain tres- pass : and the defendant may have been actuated by the worst motives without making himself liable in this form of action. Every unlawful restraint of personal liberty is an imprisonment, whether accompanied by corporal touch or not — whether in a house, in a ship, or in the street. But force of some sort must be used, and it must be a deten- tion against the will, and it is indispensable that these two circum- stances should unite. The force may be exhibited in a variety of ways 630 MOSES V. DUBOIS. [CIL^P. V. without actual assault or corporal touch — by locking a door after enticing one within, and refusing to open it for his departure; by setting sail or pusliing off from shore, having one on board, and refus- ing to allow him to go ashore; or by detaining one on the highway by threats of personal violence if he departed. And it is equally essential that the person should be detained against his Avill ; for if he voluntarily place himself in a situation where another may lawfully do that which has the effect of restraining liberty, especially if he refuse to depart when he may, he cannot complain that he is unlawfully imprisoned against his will. A sheriff's officer goes to the house of A on the even- ing of an entertainment, with a bail process against one of his guests, and enters, as he lawfully may, and makes the arrest, A refusing to assist him, but offering no hindrance; being unal)le to remove his pris- oner, he chooses to remain until the close of the entertainment, expecting then to accomplish his purpose on the departure of the guests; but the prisoner being on a visit there, remains. The officer being informed that the doors are about to be closed, is requested to depart unth his prisoner if he can take him, else without him; but he is unable to take, and refuses to go without him. If A should lock his doors and retire to rest, could the officer complain of false imprisonment if A should refuse to rise at a late hour of the night at his request, to open the door? I should think not. If a man enters a tavern and continues there all night against the will of the landlord, it is a trespass — could he com- plain if the landlord shuts his door upon him? The general rule is, that a trespass will not lie for a mere nonfeasance; and it seems to follow from that proposition, that when an act has been done, in the first in- stance lawful in itself, it cannot be rendered unlawful ab initio, except by some positive act incompatible with the exercise of the legal right to do the first act. 20 John. Rep. 429, 15 id. 401. In the case made by the e\idence, it does not appear that the plaintiff was carried from the shore against his will, but the reverse. The destination of the boat was known — the accustomed hour of departure was passed ; the boat was in the act of getting under way; at that moment the plaintiff chose to go on board, to arrest a person on a bail process, evidently under a mistaken impression as to the extent of his authority ; and seeing the boat lea\ang the wharf, he chose to remain. Here, then, there was no unlawful detention, according to the principles I have laid down: the defendant was in the discharge of his known and accustomed duty, and therefore in the performance of a lawful act, and the plaintiff was not detained against his will. At what time did the false imprisonment commence? After the boat had proceeded into the stream some dis- tance from the wharf, the defendant came and proposed to the plaintiff to send him ashore with his prisoner, if he could take him, else to send him alone. The plaintiff refused to go unless the defendant would aid him in carrying his prisoner. It need not be repeated that this the defendant was not bound to do. It was his duty to interpose no obstacle SECT. IV.] MOSES V. DUBOIS. 631 to the arrest or removal of the prisoner, but rather to afford such facih- ties as he could to the service of legal process. This he seems to have done, and more could hardly have been expected. On the refusal of the plaintiff to go ashore the defendant proceeded on his voyage, one on which the plaintiff knew the boat was in the act of departing when he went aboard. This was also the accustomed duty, the office of the defendant, and was therefore a lawful act. If the defendant was not boupd to aid in the arrest and removal of the prisoner, I do not perceive that he was bound either to delay his voyage, or put back his boat, to enable the plaintiff to procure assist- ance. WTien the boat had arrived at the mouth of the harbor near Sullivan's Island, the plaintiff demanded to be put ashore, which the defendant then refused; here commenced the detention of the plaintiff against his will. Was it unlawful? I think it cannot be so held; the defendant only proceeded on his voyage. His refusal to send the plaintiff' ashore at that time, which would have delayed his progress and put him to trouble, was a mere nonfeasance, which, if he had been guilty of no trespass upi to that time, did not render him a trespasser ab initio: it was not a positive act, incompatible with the legal exercise of the right to proceed from the wharf, the plaintiff being on board. If the plaintiff, as the case was put to the jury, had wilfully put off from the shore, to prevent assistance, and to aid the escape of Dick- erson, he might, perhaps, be liable to the creditor of Dickerson. Hut I do not perceive how a connivance in the case of Dickerson can be united with a deliberate purpose of detaining the plaintiff and carrying him to Norfolk against his will. The most effectual mode of aiding the escape of Dickerson, would seem to be to hasten the departure of Moses; besides, a deliberate purpose of carrying him to Norfolk cannot be reconciled with the offer to send him ashore: and therefore could not have existed at the time of his leaving the wharf, if he did it ever so hastily. If the defendant exliibited an anxiety to aid the escape of Dickerson, and hastened to leave the wharf and get into the stream, to prevent the plaintiff' from obtaining help, it was improper. The court has striven to sustain the verdict, but can find no precedent of such an action. The principal authority cited by counsel from Blackstone, and referred to by Chitty, is this : " Injuries to the person may be committed, 1st, by threats and menaces of bodily hurt, through fear of which, a man's business is interrupted," and cites F'inch, L., 202, Reg. 104. I have not been able to consult these last: I suppose it to be of actual personal detention from customary employment, by threats and putting in fear; and this comes up to what I have before said of the kind of force which may be used. But mere dicta in the old books sometimes mislead and sometimes have ceased to be of authority. It is said in Viner, citing Brooke, "if a man says he will cut oft" my arm, it is an assault;" " if a man says to me that if I will not cease my suit which I have against him, he will beat me — this is an assault." But it is well settled now. ^ 'vX ■ REGINA r. LESLEY. Crown Case Reserved. 1860. [Reported Bell, 220 ; 8 Cor C. C. 269.] I Erle, C. J.^ In this case the question is whether a conviction for false imprisonment can be sustained upon the following facts. \ The prosecutor and others, being in Chili, and subjects of that state, were banished by the government from Chili to England. The defendant, being master of an English merchant vessel lying in the territorial waters of Chili, near Valparaiso, contracted with that government to take the prosecutor and his companions from Valparaiso to Liverpool, and they were accordingly brought on board tlie defen- dant's vessel by the officers of the government and carried to Liverpool by the defendant under his contract. Then, can the conviction be sustained for that which was done within the Chilian waters? We answer no. We assume that in Chili the act of the government towards its sub- jects was lawful ; and altliough an English ship in some respects carries with her the laws of her country in the territorial waters of a foreign state, yet in other respects she is subject to the laws of that state as to acts done to the subjects thereof. 1 The opinion only is given. In addition to the fiicts therein stated, the following may be useful : — It appealed by the evidence for the prosecution that the prisoners requested the defendant to take them to Peru, which was near, offering to pay him what the Govern- ment of Chili paid him, but that the defendant refused, on the ground that his contract required him to carry the prisoners to Liverpool. They made no other request to be put ashore. The vessel touched at the Azores, and the defendant made holes in the boats to prevent the escape of the prisoners. Watson", B. , who tried the case, directed a verdict of guilty, and reported the case to the Court for Crown Cases Reserved. — Ed. I 632 REGINA V. LESLEY. [CHAP. V. that no mere %vords whatsoever will constitute an assault. We cannot | believe that the extensive mischiefs will ensue, in the administration of justice, which have been anticipated, should we set aside this verdict; such a conjuncture of circumstances is not likely to occur again. The consequences have grown out of the mistake of the plaintiff, in suppos- ing he had a right to call on bystanders to aid him in making the arrest. In like cases again, the sheriff's officer wall only have to take wdth him such a force of followers as wnll enable him to overcome opposition. Whatever may be the effect, we cannot overthrow the settled rules of pleading, and obliterate the settled forms of action, to suit the exi- gency in a particular case, or to avoid the possible consequence of a particular decision. The motion for a new trial is granted. 1 SECT. IV.] REGINA V. LESLEY. 633 We assume that the government could justify all that it did within its own territovy, and we think it follows that the defendant can justify all that he did° there as agent for the government and under its author- ity. In Dobree r. Napier, 2 Bing. N. C 781, tlie defendant, on behalf of the Queen of Portugal, seized the plaintifl"s vessel for violating a blockade of a Portuguese port in time of war. The plaintiff" brought trespass ; and judgment was for the defendant, because the Queen of Portugal, in her own territory, liad a right to seize the vessel and to employ whom she would to make the seizure ; and therefore the defend- ant, though an Englisliman seizing an P^nglish vessel, could justify the act under the employment of the Queen. We think that the acts of .the defendant in Chili become lawful on the same principle, and therefore no ground for the conviction. The further question remains. Can the couA'iction be sustained for that which was done out of the Chilian territory? And we think it can- It is clear that an English ship on the high sea, out of any foreign territory, is subject to the laws of England ; and persons, whether for- eign or English, on board such ship, are as much amenable to P^nglish law as they would be on English soil. In Regina v. Sattler, 1 D. & B. C. C. 525, this principle was acted on, so as to make the prisoner, a for- eigner, responsible for murder on board an English ship at sea. The same principle has been laid down by foreign writers on international law, among which it is enough to cite Ortolan, " Sur la Diplomatic de la Mer," liv. 2. cap. 13. The Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 267, makes the master and seamen of a British ship responsible for all offences against propert}' or person committed on the sea out of her Majestj's dominions as if the}' had been committed within the jurisdiction of the Admiralty of P^ngland. Such being the law, if the act of the defendant amounted to a false imprisonment he was liable to be convicted. Now, as the contract of the defendant was to receive the prosecutor and the others as prisoners on board his ship, and to take them, without their consent, over the sea to England, although he was justified in first receiving them in Chili, yet that justification ceased when he passed the line of Chilian juris- diction, and after that it was a wrong which was intentionally planned and executed in pursuance of the contract, amounting in law to a false imprisonment. It may be that transportation to England is lawful by the law of Chili, and that a Chilian ship might so lawfuU}' transport Chilian sub- jects ; but for an English ship the laws of Cliili, out of the state, are powerless, and the lawfulness of the acts must be tried by English law. For these reasons, to the extent above mentioned, the conviction is aflflrmed. Co7iviction confirmed accordingly.^ 1 For the extent to which the command of a military or naval superior officer will justify a criminal act, see Reg. i\ Thomas, 1 Riiss. Crimes, 731 ; Keg. v. Hutchinson, 9 Cox C. C. 555; U. S. v. Clark, 31 F. K. 710, infra. — V.d. 634 THE BALMAIN NEW FERRY CO., LTD., V. ROBERTSON. [cHAP. V. THE BALMAIN NEW FERRY CO., LTD., v. ROBERTSON. High Court of Australia, 1906. [Reported 4 Com. L. R. 379.] O'Connor, J. The material facts of this case may be shortly stated. The appellants carried on the business of a harbor steam ferry from the City of Sydney to Balmain, in connection with which they used a wharf and premises leased by them from the Harbor Trust Commis- sioners. Fares were not taken on the steamers or on the Balmain side, but were all collected on the Sydney wharf on the following system: On the street side of the wharf were two registering turnstiles, one for entry, the other for exit. The turnstiles did not quite fill up the open- ing in which they moved, there being a space of some eight and a half inches between the outer edge of the turnstiles and the bulkhead. For the purposes of this case it may be taken that there was no other'way of entering or leaA'ing the wharf on the land side except by the turnstiles. An officer of the company was stationed at each turnstile. Passengers entering the wharf paid one penny to the officer at the entry turnstile, were admitted, and had then the right to travel by the company's steamers to Balmain. Similarly passengers leaving the wharf, whether they had traveled from Balmain in the company's steamers or not, paid a penny to the officer at the exit turnstile and were allowed to pass through to the street. The turnstile in each case automatically regis- tered the number of passengers passing through, and was thus a check upon the officers' cash takings. Two photographs were put in by the plaintiff, respondent, one showing the exterior, the other the interior of the wharf, from which it appeared that there was a notice board a few feet over the turnstiles, on which were painted the words, " Notice. A fare of one penny must be paid on entering or lea\'ing the wharf. No exception will be made to this rule, whether the passenger has traveled by the ferry or not." The notice was so placed that in the daytime, at least, it would be difficult for a passenger giving reasonable attention to his surroundings to avoid seeing it. The photographs also showed a large gas lamp so situated that at night time, if alight, it would throw a full light on the notice, but there was no direct evidence either that it was generally fit at night or that it was alight on the evening of the occurrence. On the night of 5th June, 1906, the respondent and a lady came to the wharf, and, with the intention of crossing to Balmain in one of the appellant's steamers, passed tlirough the entrance turnstile, each pay- ing a penny. When they had got to the water side of the wharf they SECT. IV.] THE BALMAIN NEW FERRY CO., LTD., I'. ROBERTSON. 635 found that the steamer had gone, and, instead of waiting for the next, they determined to go to another ferry company's wharf and cross the harbor by another steamer to Balmain. The respondent, seeing no way of getting from the wharf into the street except by the turnstiles, asked one of the officers at the turnstiles to show him the way out. The officer replied that there was only one way out, and that was through the turnstile. The respondent then asked if he was expected to pay on going out, seeing that he had not traveled by the steamer. The officer replied in the aflSrmative, and told him that unless he did pay he would not be allowed to. go out through the turnstile. The respondent denied the company's right to make the charge, or to make its payment a condition of his being permitted to pass through the turnstile. The officer then called his attention to the notice. After some further conversation the respondent endeavored to force his way through the eight and a half inch space between the entrance turnstile and the bulkhead, but was prevented from doing so by the appellant company's officers, who used force for that purpose. After some twenty minutes, during which the respondent continued to assert and the officers to deny his right to pass out through the turnstiles without payment, the respondent eventually, in spite of opposing force on the part of the officers, squeezed his way out between the exit turnstile and the bulkhead and gained the street. These facts con- stituted the assault and false imprisonment for which the respondent sued. At the trial of the action the respondent obtained a verdict for £100 damages, and, on appeal, the Supreme Court granted a rule nisi for a new trial or a nonsuit or Aerdict for the defendants on the grounds (1) that His Honor was in error in directing the jury that the trespass complained of was not within the scope of the servants' authority; (2) that he was in error in directing that the defendants had no right to demand the second penny; and (3) that he should have directed the jury that, if they came to the conclusion that the company had done what was reasonable to give persons going on the wharf notice of the terms on which they were admitted, the jury were entitled to find that the plaintiff was bound by that notice. The rule was subsequently discharged with costs: Robertson v. Balmain New Ferry Co., Ltd. From this decision, as to the second and third grounds of the rule 7iisi, the present appeal was l>rought by special leave, the court ha\'ing refused to grant leave as to the first ground. It is admitted on this appeal that the company are responsible for what was done by their officers, so that there is left for our decision substantially one question only, namely, whether, on the facts, the company are liable to the plaintiff for false imprisonment and assault. The legal position on which the plaintiff relies may be thus stated: He entered the wharf under a contract to be carried in the company's steamer from Sydney to Balmain. Before tiie contract was performed 636 THE BALAIAESJ" NEW FERRY CO., LTD., i". ROBERTSON. [CHAP. V. he decided to abandon it, and, having no further business on the wharf, became entitled to pass out to the street through the turnstiles, or, if not through them, at least through the eight and a half inch space between the turnstile and tlie bulkliead. The company's officers by force prevented him from doing so, refused to allow him to pass out through the turnstile exceprt on payment of a penny at the exit turn- stile, and thus kept him imprisoned as a means of enforcing payment of that demand. He maintains that, even if he were bound to pay the extra penny as a matter of contract and it became a debt recoverable in the courts, the company could not thus take the law into their own hands and deprive him of his liberty in order to enforce payment. If that were an accurate statement of the position, the plaintiff's conten- tion would be unanswerable. But it is not an accurate statement of the position. Undoubtedly it is not permissible for a creditor, except under due process of the law, to abridge the liberty of his debtor for the purpose of enforcing payment. But the abridgment of a man's liberty is not under all circumstances actionable. He may enter into a contract which necessarily involves the surrender of a portion of his liberty for a certain period, and if the act complained of is nothing more than a restraint in accordance with that surrender he cannot complain. Nor can he, ^-ithout the assent of the other party, by elect- ing to put an end to the contract, become entitled at once, uncon- ditionally and irrespective of the other party's rights, to regain his liberty as if he had never surrendered it. A familiar instance of such a contract is that between a passenger and the railway company which undertakes to carry him on a journey. If the passenger suddenly during the journey decided to abandon it and to leave the train at the next station, being one at which the train was not timed to stop, he clearly could not be entitled to have the train stopped at that station. How- ever much he might object, the railway company could lawfully carry him on to the next stopping place of that particular train. In such a case the passenger's liberty would be for a certain period restrained, but the restraint would not be actionable, because it is an implied term of such a contract that the passenger will permit the restraint of his liberty so far as may be necessary for the performance by the company of the contract of carriage according to the time table of that train. Or a person may conditionally, by his own act, place himself in such a position that he cannot complain of a certain restraint of his liberty. Take an illustration which was used in the course of the argument. As- sume that the turnstiles on the company's wharf completely closed the opening lietween the bulkheads, that they were worked on the penny in the slot system, and would not open except when a penny, dropped in the slot, operated the mechanism. If under these circumstances the plaintiff, having opened the entry turnstile by his penny and entered the wharf, changed' his mind about crossing in the company's steam- ers, and wished to return at once to the street, could he claim that he SECT. IV. I THE BALMAIN NEW P^ERRY CO., LTD., V. ROBERTSON. 637 was not bound to use the ordinary means of opening the exit turn- stile by dropping in his penny, but was entitled to break his way through it, or to demand from the company's officers that they should specially unlock the apparatus to enable him to pass out? If, under the circumstances, the officers refused to comply with his request, could it possibly be contended that the company would be liable to an action for false imprisonment? Prima facie, no doubt, any restraint of a person's liberty without his consent is actionable. But, when the restraint is referable to the terms on which the person entered the premises in which he complains he was imprisoned, we must examine those terms Ijefore we can determine whether there has been an im- prisonment which is actionable. The fallacy in the plaintiff's legal position lies in the assumption that, immediately he abandoned the contract to be carried to Balmain by the company's steamer, he was in the same position as if the wharf was one to which the public had free right of access, that, finding his exit barred by the turnstiles, he was entitled either to squeeze past them, or to demand from the company's officers that they should be specially released to let him through. Whether that assumption is or is not justifiable depends upon the terms on which the plaintiff was permitted to enter the wharf. In ascertaining those terms it must be remembered that the wharf was not a place to which the pul^lic had free right of access. If it had been so no one could legally place upon the wharf any bar or obstruction to the free entry or exit of any member of the public. But it was not a public place in that sense. It was private property. No one had a right to enter there without the company's permission, and they could impose on the members of the public any terms they thought fit as a condition of entering or leaving the premises. What were the terms on which the plaintiff entered the company's wharf? There was no express contract, and the terms must therefore be implied from the circumstances. In dealing with the circumstances I leave the question of the notice board out of consideration. In my view, it is immaterial whether the company did what was reasonable to direct public atten- tion to the notice, or whether the plaintiff ever read it until his atten- tion was called to it by the officer at the turnstile. But as to the mate- rial facts from which the contract must be implied there is no dispute. The plaintiff was aware that the only entrance to and exit from 'tlie wharf on the land side was through the turnstiles, and that, to quote his evidence, " When the turnstile was not released there was a complete barrier stretching across the whole entrance," in other words, entrance to and exit from the wharf were completely barred except when by the action of the officer in charge the turnstile was released. He also knew that the turnstiles were so constructed as to admit only persons enter- ing the wharf through the entry turnstile, and only persons leaving the wharf through the exit turnstile, that the passing through of every pas- senger was automatically registered by the turnstile, and that the 638 THE BALMAIN NEW FERRY CO., LTD., V. ROBERTSON. [CUAP. V. automatic register was a check on the cash taken by the officer. He himself, in speaking to one of the officers, said, " If it is the question of putting out the tally of your turnstiles I can squeeze through there," referring to the eight and a half inch space before mentioned. Having traveled on many occasions backward and for- ward by the company's boats, and, as he says, paid his fare to the officers at the turnstiles, he must have been aware that the companj^'s method of conducting their business was to release the turnstiles only on payment of a penny, and that in every case where there was a de- -f parture from that method "the tally of the turnstile," as he terms it, would be thrown out. Such being the condition of the company's premises, and such being their method of carrying on their business, the plaintiff paid his penny to the officer and went through the entry turnstile on to the wharf. The first question is, what is the contract to be implied from the plaintifi''s payment at and passing through the turnstiles under these circumstances? It is that in consideration of that payment the com- pany undertook to carry him as a passenger to Balmain by any of their ferryboats from that wharf. That is the only contract which could be implied from those circumstances, and the plaintiff was per- mitted to enter the wharf for the purpose of that contract being per- formed. It is not denied that the company were ready to perform their part, but the plaintiff, as far as one party can do so, rescinded the con- tract and determined to go back from the wharf to the street. What then were his rights? They were, m my opinion, no more and no less than they would have been if he had landed from his own boat at the company's wharf. He was on private property. He had not been forced or entrapped there. He had entered it of his own free will and with the knowledge that the only exit on the land side was through the turn- stile, operated as a part of the company's SN-stem of collecting fares in the manner I have mentioned. If he wished to use the turnstile as a means of exit he could only do so on complying with the usual condi- tions on which the company opened them. The company were lawfully entitled to impose the condition of a penny payment on all who used the turnstiles, whether they had traveled by the company's steamers or not, and they were under no obligation to make an exception in the plaintiff's favor. The company, therefore, being lawfully entitled to impose that condition, and the plaintiff being free to pass out through the turnstile at any time on complying with it, he had only himself to blame for his detention, and there was no imprisonment of which he could legally complain. Next, had he the right to force his way through the narrow space between the turnstile and the bulkhead? Clearly he had not. If the turnstile had filled the whole space between the bulkheads, it could not be contended that the plaintiff would have been entitled to break it open in order to pass through. The company's officers were, in my opinion, entitled to regard the turnstile as block- SECT. IV.] HERD V. WEARDALE STEEL, COAL & COKE CO., LTD. 639 ing the whole space, not only for the necessary protection of the mechan- ism of the turnstiles from injury, but also because it was a necessary part of their system of collecting fares on entry and exit that the turnstile should be an eflPective barrier against entry and exit of any person except on the company's conditions. They were, therefore, entitled to prevent the plaintiff from squeezing through the space in question, and were justified in meeting the plaintiff's forcible attempt with as much force as was reasonably necessary to defeat it. It is not alleged that they did more, and any assault they may have committed on the plaintiff under these circumstances was justified. In this con- nection I may observe that it is not necessary to determine whether or not this justification is, strictly speaking, open to the company on the pleadings. The case has been conducted all through on the footing that it is open, and, if it were necessary, the court would make any amendment required to formally shape the issues in accordance with the way in which both parties regarded them at the trial. . . . Taking then, the whole facts in this case together, the plaintiff, in my opinion, was not entitled to succeed, and the verdicts which the jury returned in his favor must be set aside. The only remaining question is, whether this court should grant a new trial, or order the verdict to be entered for the defendants. The court may make any order which the Supreme Court ought to have made in the first instance. That court ought, in my opinion, to have directed a verdict to be entered for the defendants. All the material facts were before them as they have been before us. It is impossil)le that any jury could on those facts find a verdict for the plaintiff which could stand for one moment if questioned. The ver- dict ought therefor, to have been entered for the defendants, and this court must now order accordingly that the verdict for the plaintiff be set aside and judgment be entered for the defendants. \ HERD V. WEARDALE STEEL, COAL & COKE CO., LTD.; Court of Appeal, 1913. [Reported (1913) 3 K. B. 771.] Buckley, L. J. The plaintiff is a coal miner. The defendants are the colliery company in whose employment he was, and the manager of the colliery and an overman at the colliery. The action is brought for damages for false imprisonment. The plaintiff by his particulars says that the defendants "by their orders wrongfully prevented the plaintiff from using, and wrongfully refused the use of, the said cage to the plaintiff, whereby the plaintiff was falsely imprisoned." The . action was tried at Newcastle before Pickford, J., without a jury, and the judgment was delivered at Leeds. No evidence was called. I regret G40 HERD T. WEARDALE STEEL, COAL & COKE CO., LTD. [cHAP. V. that that is so, because we have to get the facts as best we can from the opening speech of counsel for the plaintiff, coupled Tvath some statements by way of admission and qualification made by counsel for the defendants. I will state as accurately as I can the material facts which I have gathered from those speeches. The plaintiff went down the mine on a shift at about half past nine in the morning. The shift would be o^er and he would be entitled to come up again at about 4 p. M. The plaintiff and two other men were ordered to do certain work. The men said that it was work which they could not be called upon to do, and they refused to do it. At a later date it was determined by a court of summary jurisdiction that the men were wrong, but in my opinion that does not really affect this case. The result of the refusal of these three men to work was that twenty-nine other men, out of sympathy with them, also refused to work. The men, the twenty-nine and the three, thereupon made their way to the bottom of the shaft, and arrived there at about eleven o'clock. The cage was then and until one o'clock engaged in winding coal, and while that is being done it is illegal to carry men in the cage. At one o'clock it ceased to wind coal. At that moment, as of course would be the case, there was one cage at the surface and another at the bottom. There were some lads at the surface whom the manager desired to luring down. He could not bring them down except by hauling up at the same time the cage which was at the bottom, and if that had been done the plaintiff could have gone up in that cage. Eight men out of the twenty-nine took their seats in the cage, although I believe they were told not to do so. The cage was not started. That state of things continued for about twenty minutes. At the end of that time the desire to send the boys down prevailed over the desire not to bring the men up. The plaintiff was told that if he liked he might get into the cage as it was going up. The cage went up, and he got to the surface and went away. These, so far as I can gather them, are the material facts. The plaintiff says, " The cage was, or ought to have been, at my disposal twenty minutes before the time at which in point of fact it was placed at my disposal. I was falsely imprisoned for twenty min- utes." It makes no difference, of course, that it was only for a short period of time. If he was falsely imprisoned for a time, although it may have been short, he is entitled to damages. The question for decision is, were the defendants guilty of false imprisonment? Upon that question there are two things to be deter- mined. First, was there an imprisonment? If that be answered in the affirmative, the further question arises, was it a false inprisonment? If the first question is answered in the negative, the second question does not arise. False imprisonment is wholly a matter in tort, but, for reasons which will liecome apparent presently, I am going to consider the plaintiff's rights in contract as well as his rights and remedies in tort. SECT. IV.] HERD V. WEARDALE STEEL, COAL & COKE CO., LTD. 641 I conceive that the plaintiff's rights in contract were these. He had been taken by his employers down the sliaft to his work to a place from which it was impossible to return except by the cage. It results, I think, that the law will imply in the contract a term that he shall be restored from the place to which he had been taken to the surface at a proper time. It is said that that ought to be any reasonable time. That is only another way of saying that in the contract, although, not expressed, it is implied by law that the plaintiff shall be brought back to the surface at such time as it must have been in the contemplation of the contracting parties that he should be brought back. What would that include? Obviously it would include that when the plain- tiff's shift was over he should l)e brought back; also, if he were ill. These are but instances. It would include as an implied term that he should be brought to the surface at any such time as it must have been fairly within the contemplation of the contracting parties that he should be brought back. But it would not include an implied term that he should be brought back at whatever time he liked. His right was to be brought back at such a time as the parties must have con- templated as a proper time. After the plaintiff had been in the mine for a short time he committed a breach of his contract in refusing to do his work, and he then demanded to be taken to the surface, a thing which was outside his contract. Being a person who had broken his contract, he had, shall I say, the assurance to ask his employers to assist him in carrying that breach of contract into effect, that is to say, to assist him in cutting short the period of seven hours during which he ought to have stayed down, by taking him up to the surface at that moment. 01)\"iously there was no implied term in the contract requir- ing the employers to do that. Therefore, at the time when the plaintiff desired to be taken to the surface he had no contractual right to call upon his employers to afford him the necessary facilities, and as far as the contract between the parties was concerned the defendants were entitled to refuse to do so. What were the plaintiff's rights in tort? In the words of Patteson, J., in Bird r. Jones, 7 Q. B., at p. 751, he had the right to say, " If one man compels another to stay in any given place against his will, he imprisons that other just as much as if he locked him up in a room." But is it true to say that the defendants compelled the plaintiff against his will to remain in the mine and imprisonefl him? To my mind it is not. It is true that he could not leave the place; but he was detaincfl there, not by any act of the defendants, but by a certain physical difficulty arising from the situation of the place, a difficulty which the plaintiff was, as between himself and his employers, contractually entitled to call upon them to remove for him at a time, but not at that time. What kept him from getting to the surface was not any act which the defendants did, l)ut the fact that he was at the bottom of a deep shaft, and that there were no means of getting out other than the par- 642 HERD V. WEARDALE STEEL, COAL & COKE CO., LTD. [cKAP. V. ticular means which belonged to liis employers and over which the plaintiff had contractual rights which at that moment were not in operation. He had no right to say to tiie defendants at that moment, "You are preventing me from getting out of the mine." The defend- ants' reply would be, "We are not preventing you from getting out; get out by all means if you can. But you are not entitled to call upon us to take you out when contractually, as between you and us, we are not bound to do so. You are calling upon us to assist you in your breach of contract l)y taking you out. We are bound l^y contract to do so at a time, but not at this time." From that it follows, in my opinion, that there was no imprisonment of the plaintiff by the defendants. The passage from the judgment of Patteson, J., in Bird v. Jones, 7 Q. B., at p. 751, cannot be read as if it said that if one man declines to give another man facilities for leaving a place which he desires to leave he imprisons him. He does not do so. He imprisons him if he prevents him from lea\ang; but he does not imprison him because he does not assist him to come out. The two propositions are perfectly different, the one from the other. It will be seen from what I have said that there is in my view no occasion to say anything as to the other part of the argument, namely, as to whether the plaintiff had committed an offense, and, if he had, whether it was a statutory offense, and whether he was punishable by a penalty for what he had done. The defendants do not contend that they were entitled to imprison the plaintiff because he had committed an offense. The argument for the defendants at the trial was really addressed to the plaintiff's rights by way of contract. The defendants were, no doubt, sa^t^ing, "We were not bound to wind the engine for vou in these circumstances, because as between vou and us you had no right to go to the surface. You ought to have been doing your work." The defendants did in that sense say that they were not going to assist the plaintiff to get out; but they never said that they were going to punish the plaintiff for an offense which according to their ^^ew he had committed. I will read two passages from the shorthand note of Mr. Mitchell Innes' argument at the trial which clearly show the position taken up by the defendants. He said: "The company have always insisted that under that contract they were entitled to offer that man the cage at the end of that shift and at no other time. He went down there under an agreement to work for that length of time; that implies the further proposition that he was not entitled as of right to leave his work until the shift was at an end. " Speaking for myself, it appears to me that that passage accurately states the posi- tion. It is perfectly correct to say that under the contract between the plaintiff and his employers he was not entitled to call upon them to use the cage for him till he had performed his work, or until some of the cir- cumstances which I have mentioned had arisen. The other passage is as follows : " He went down to work for a shift, and until that shift is SECT. IV.] HERD V. WEARDALE STEEL, COAL & COKE CO., LTD. B43 over he may not come up." Of course that means, as between the man and his employers, he may not come up. " There is nothing in the cir- cumstances of this case, and the facts of this case, I respectfully submit, that can afford foundation for the proposition that he has shown any title to ascend by the cage at any time 'during the shift, or that we have done anything which disentitles us to enforce that term of our contract which entitles us to refuse him the cage until he has performed liis part of the contract and done his work for seven hours." Again, that is entirely upon his contractual rights. "He has shown no title to ascend. He has shown no right to call, by way of specific performance, if that were possiljle, upon the master to wind the cage for him because he is entitled to come up. He has done nothing which disentitles us to enforce that term of our contract which entitles us to refuse him the cage." The question may be tested in another way. Suppose that 'at the end of the shift, when there would be a contractual right on the part of the man to come up, the master were to say that it was not conven- ient to bring the man up at that time and that he must remain in the pit for another hour, the man would be entitled to damages for breach of contract, but would there be any false imprisonment? In my opinion there would not. The master has not imprisoned the man. He has not enabled him to get out as under the contract he ought to have done, but he has done no act compelling him to remain there. I only wish to add that if it were supposed that in the judgment which I have delivered I have affirmed in any degree any right on the part of the master to inflict by way of punishment upon the man for not doing his work the penalty that the man shall stay in an assigned place for an assigned time, I have wholly failed to convey my meaning. I mean nothing of the sort. The master has no right to compel the man, by way of penalty or punishment, to suffer an inconvenience by staying down a mine. That is not the question in this case. The question is whether the defendants falsely imprisoned the plaintiff. To my mind, they did not imprison him, because they did not keep him there; the\' only abstained from giving him facilities for getting away. I conclude by calling attention to the fact, which is really of the essence of the matter, that this is not an action in contract, but in tort, and in tort the question is whether the defendants did anything to compel the plaintiff to remain in the mine, and whether they impris- oned him. In my opinion the defendants did not imprison the plaintiff; all that they did was to refrain from giving him a facility which in the circumstances they were not bound to give him. For these reasons I am of opinion that this appeal succeeds.^ ^ The concurring opinion of Hamilton, L. J., and the dissenting opinion of Vaughan Williams, L. J., are omitted. — Ed. 644 REGINA V. DADSON. [CHAP. V. SECTION V. Action in Pursuance of Permissio7i, REGIXA V. DADSON. CKOw^' Case Reserved. 1850. [Repoilfd 4 Cox C. C. 358.] The prisoner was tried and convicted before Erle, J., at the last Maidstone Assizes, but the learned judge, entertaining some doubt as to tlie propriety- of the conviction, reserved the following case : — George Dadson was indicted for shooting at WilUam Waters, with intent to do him grievous bodil}- harm. It appeared that he, being a constable, was emplo^-ed to guard a copse, from which wood had been stolen, ant] for this jnirpose carried a loaded gun. From this copse he saw the prosecutor come out, carrying wood, which he was stealing, and called to him to stop. The prosecutor ran awa}', and the prisoner, having no other means of bringing him to justice, fired, and wounded him in the leg. These were the facts on which the prisoner acted. It was alleged in addition that Waters was actually committing a felony, he having been before convicted repeatedly of stealing wood, but these convictions were unknown to the prisoner, nor was there anj' reason for supposing that he knew the ditference between the rules of law relating to felony and those relating to less offences. I told the jury that shooting with intent to wound amounted to the felon}- charged, unless from other facts there was a justification ; and that neither the belief of the prisoner that it was his duty to fire if he could not otlier- wise apprehend the prosecutor, nor the alleged felon}', it being unknown to him, constituted such justification. Upon this the prisoner was con- victed of felon}-, and let out on his recognizances to come up for judgment, if ]-equired. I have to request the opinion of the judges whether this conviction was right. [Tills case stood for argument on AVednesday, November 20, but no counsel were instructed. For the legal distinction adverted to in the case with regard to the apprehension of felons and misdemeanants only, see 1 Hale, 481 • 4 Bl. Com. 179 ; Fost. 271 ; R. v. Smith, 1 Russ. on Cr. o46.] Cur. adv. vult. Pollock, C. B., delivered the judgment of the court. (After stating the facts as above.) We are all of opinion that the conviction is right. The i:)rosecutor not having conmiitted a felony known to the prisoner at the time when he fired, tlie latter was not justified in firing at the prosecutor ; and having no justifiable cause, he was guilty of shooting at the prosecutor with intent to do him grievous bodily harm, and the conviction is right. Convictio7i affirmed. SECT, v.] STRANG V. RUSSELL. 645 STRANG V. RUSSELL. Supreme Court of New Zealand, 1904. [Reported 24 N. Z. L. R. 916.] Cooper, J. This is an action in which the plaintiff claims to recover from the defendant damages for trespass alleged by the plaintiff to have been committed by the defendant upon a small lake or lagoon known as the Hokowhitee Lagoon, at Palmerston North, and claimed by the plaintiff as his property.^ The defendant ... in cross-examination by Dr. Findlay said that he had been accustomed to boat on the lagoon for over three years, and had not been warned by Strang, although he had often met him on the lagoon; and that he had not up to the 4th of September received any notice from Strang that he claimed the right to exclude him from the use of the lagoon. He also said that on the Sunday succeeding the 4th of September he saw Strang, and that Strang said to him, " You are at liberty to go on the lagoon whenever you like, Russell, or any other respectable person." One of the defenses submitted on behalf of the defendant was that, even if the plaintiff owned the bed of the lagoon and had the right to exclude others from boating upon it, the defendant had the plaintiff's implied leave and license to go on the lagoon on the 4th of September, that that leave and license had not been withdrawn, and that there- fore no trespass had l)een committed. But, in my opinion, this defense cannot prevail. The defendant, in going on the lagoon on the 4th of September with Bell, went there, according to his own admission, not because of any leave or license which may have been given to him by the plaintiff, but under a claim of right to do so as a riparian proprietor, having found out that the plaintiff claimed to have bought the lagoon, and for the express purpose of contesting the plaintiff's legal right to ownership of the bed of the lagoon. He, in fact, proceeded on the 4th of September along the lagoon not in pursuance of any implied per- mission given to him by the plaintiff, but in the exercise of a presumed legal right adverse to the plaintiff's claim as an owner, and with the intention of contesting the plaintiff's right as alleged owner of the lagoon. ^ Part of the opinion only is given. — Ed. 646 THE SIX carpenters' case. [chap. v. THE SIX CARPENTERS' CASE. King's Bench, 1610. [Reported 8 Co. 146 a.] In trespass brought by John Vaux against Thomas Newman, car- penter, and five other carpenters, for breaking his house, and for an assault and battery, 1 Sept. 7 Jac. in London, in the parish of St. Giles extra Cripplegate, in the ward of Cripplegate, &c. and upon the new assignment, the plaintiff assigned the trespass in a house called the Queen's Head. The defendants to all the trespass proeter fradionem domus pleaded not guilty; and as to the breaking of the house, said, that the said house prwd' tempore quo, &c. et diu antea et postea, was a common Wine Tavern, of the said John Vaux, with a common sign at the door of the said house fixed, &c. by force whereof the de- fendants, prwd' tempore quo, &c. viz. hora quarta post meridiem into the said house, the door thereof being open, did enter, and did there buy and drink a quart of wine, and there paid for the same, &c. The plaintiff, by way of replication, did confess, that the said house was a common tavern, and that they entered into it, and bought and drank a quart of wine, and paid for it: but further said, that one John Ridding, servant of the said John Vaux, at the request of the said defendants, did there then deliver them another quart of wine, and a pennyworth of bread, amounting to M. and then they there did drink the said wine, and eat the bread, and upon request did refuse to pay for the same: upon which the defendants did demur in law: and the only point in this case was, if the denying to pay for the wine, or non-pay- ment, which is all one (for every non-payment upon request, is a denying in law) makes the entry into the tavern tortious. And, first, it was resolved when an entry, authority, or license, is given to any one by the law, and he doth abuse it, he shall be a trespasser ah initio: l)ut where an entry, authority, or license, is given by the party, and he abuses it, there he must be punished for his abuse, but shall not be a trespasser ah initio. And the reason "of this difference is, that in the case of a general authority or license of law, the law adjudges by the subsequent act, quo animo, or to what intent, he entered; for acta ezteriora iiidicant interiora secreta. Vide 11 H. 4. 75 b. But when the party gives an authority or license him- self to do any thing, he cannot, for any subsequent cause, punish that which is done l)y his own authority or license. And therefore the law gives authority to enter into a common inn, or tavern, so to the lord to distrain; to the owner of the ground to distrain damage-f easant ; to him in reversion to see if waste be done; to the commoner to enter i SECT, v.] OXLEY V. WATTS. 647 upon the land to see his cattle, and such like. Vide 12 E. 4. 8 b. 21 E. 4. 19 b. 5H. 7. 11 a. 9 H. 6. 29 b. 11 H. 4. 75 b. 3 H. 7. 15 b. 28 H. 6. 5 b. But if he who enters into the inn or tavern doth a tres- pass, as if he carries away any thing; or if the lord who distrains for rent, or the owner for damage-feasant, works or kills the dis- tress; or if he who enters to see waste breaks the house, or stays there all night; or if the commoner cuts down a tree, in these and the like cases, the law adjudges that he entered for that purpose; and because the act which demonstrates it is a trespass, he shall be a tres- passer ab initio, as it appears in all the said books. So if a purveyor takes my cattle by force of a commission, for the King's house, it is lawful: but if he sells them in the market, now the first taking is wrongful; and therewith agrees 18 H. 6. 19 b. Et sic de similibus. 2. It was resolved per totam curiam, that not doing, cannot make the party who has authority or license by the law a trespasser ab initio, because not doing is no trespass; and, therefore, if the lessor distrains for his rent, and thereupon the lessee tenders him the rent and arrears, &c. and requires his beasts again, and he will not deli\'er them, this not doing cannot make him a trespasser ab initio; and therewith agrees 33 H. 6. 47 a. So if a man takes cattle damage-feasant, and the other offers sufficient amends, and he refuses to re-deliver them, now if he sues a Reple\'in, he shall recover damages only for the detaining of them, and not for the taking, for that was lawful; and therewith agrees F. N. B. 69 g. temp. E. 1. Replevin 27. 27 E. 3. 88. 45 E. 3. 9. So in the case at bar, for not paying for the wine, the defendants shall not be trespassers, for the denying to pay for it is no trespass, and therefore they cannot be trespassers ab initio; and therewith agrees directly in the point 12 Edw. 4. 9b. For there Pigot, Serjeant, puts this very case, if one comes into a tavern to drink, and when he has drunk he goes away, and will not pay the taverner, the taverner shall have an action of trespass against him for his entry. To which Brian, C. J., said, the said case which Pigot has put, is not law, for it is no trespass, but the taverner shall have an action of debt. OXLEY V. WATTS. King's Bench, 1785. [Reported 1 T. R. 12.] This was an action of trespass for taking a horse, tried before Lord Mansfield, at the last Summer Assizes, at Maidstone. The defendant, as bailiff of Lord Dartmouth, lord of the manor of A., justified taking the said horse as an estray. 648 ALLEN V. CROFOOT. [CHAP. V. Replication, that after the taking mentioned in the declaration, the defendant worked the said horse, and so became a trespasser ab initio. Erskine now moved to set aside the verdict which had been obtained by the plaintiff, on the ground that this should have been an action on the case for the consequential damage, and not an action of tres- pass, because the original taking was admitted to be lawful. But per curiam, The subsequent usage is an aggravation of the trespass in taking the horse; for the using made him a trespasser ah initio. Vid. Taylor v. Cole, 3 T. R. 292. Rule refused. ALLEN V. CROFOOT. Supreme Court, New York, 1830. [Reported 5 Wend. 506.] Error from the Cortland common pleas. Crofoot sued Allen in a justice's court, and declared against him in trespass for entering his house in his absence and obtaining copies of papers for the purpose of commencing a suit against him. The defendant pleaded the general issue and license to enter the house. The cause was tried] by] a jury, who found a verdict for the plaintiff for $50, for which sum and the costs of suit (as stated in the return) the justice gave judgment. The defendant appealed to the Cortland common pleas, and on the trial in that court the following facts appeared : There had been an arbitration between one Parsons and Crofoot, and an award had been made in favor of Parsons. Allen was the attorney of Parsons, and on receiving from Crofoot the sum of money awarded, delivered up to him his bond and the award. At the time of payment, something was said about fur- ther claims that Parsons had against Crofoot, which the latter said he would not pay. After this, it seems that Allen thought he had done wrong in delivering up the bond and award, and went to the house of Crofoot in his absence to take copies of the bond and award, under the pretense that he was subpoenaed as a witness and wanted to refresh his memory as to the transactions, when in fact his object was to obtain copies for the purpose of commencing a suit against Crofoot, which subsequently was commenced. This excuse he made to a brother-in- law of the plaintiff, to prevent him from taking the papers from him; the brother-in-law having gone into the room where he was copying the papers, at the request of the j^laintitt's wife, who was greatly agi- tated. It was shown that the defendant had admitted that he would not SECT. \.] ALLEN V. CROFOOT. 649 have got the copies had he not practised a deception upon the plain- tiff's wife and brother-in-law, and that he went to the plaintiff's house in his absence, knowing that had he been at home he could not have obtained copies of the papers. It further appeared, that when he went to the house of the plaintiff, the defendant knocked at the door and was bidden to come in ; and that he was on terms of intimacy with the plaintiff, and in the habit of resorting to his house. The court charged the jury, that if they should be of opinion that the defendant had acted unfairly or improperly in obtaining copies of the papers, and had gone to the plaintiff's house with the intention of fraudulently obtaining such copies, though he had leave to enter the house, they should find for the plaintiff; but if he acted correctly and openly, and had leave to enter the house, they should find for the defendant. The defendant excepted to this charge, and the jury found a verdict for the plaintiff with $75 damages. The defendant sued out a WT-it of error. ^ Savage, C. J. It is also urged by the plaintiff in error, that the court below erred in charging the jury that the action was sustainable, if they should find that the defendant entered the plaintiff's house fraudulently, to obtain improperly copies of papers in the absence of the plaintiff. It was decided in The Six Carpenters' Case, 4 Co. 290, that where an authority to enter upon the premises of another is given by law, and it is subsequently abused, the party becomes a tres- passer ab initio; but where such authority or license is given by the party, and it is subsequently abused, the party guilty of the abuse may be punished; but he is not a trespasser; and the reason of the difference is said to be, that in case of a license by law, the subsequent tortious act shows quo animo he entered; and having entered with an intent to abuse the authority given by law, the entry is unlawful; but where the authority or license is given by the party, he cannot punish for that which was done by his own authority. AYhether this is not a dis- tinction without a difference of principle, it is not necessary to inquire. A better reason is given for it in Bacon's Abr. tit. Trespass, B. Where the law has given an authority, it is reasonable that it should make void everything done by the abuse of that authority, and leave the abuser as if he had done everything wnthout authority. But where a man, who was under no necessity to give an authority, does so, and the person receiving the authority abuses it, there is no reason why the law should interpose to make void everything done by such abuse, be- cause it was the man's folly to trust another with an authority who was not fit to be trusted therewith. It is contended that the license being obtained by fraud was void. The defendant knocked at the door and was told to walk in; he was found copying certain papers; but how he obtained them, on what representation, or from whom, the e^^dence does not disclose. One witness does indeed testify that he said he would not have got the copies, if he had not practised a deception on the wife * Part of the case, involving the legality of the app)eal bond, is omitted. — Ed. 650 SAMUEL V. PAYNE. [CHAP. V. and brother-in-law of the plaintiff. If this declaration should be con- sidered evidence of his having made improper representations to obtain the papers, then the question arises, does he thereby become a tres- passer ab initiof It has l)een decided that to enter a dwelling house without license, is in law a trespass, 12 Johns. R. 408, and that possession of property obtained fraudulently confers no title. Under such circumstances no change of property takes place, 15 Johns. R. 186; and it is argued that as fraud vitiates everything into which it enters, a license to enter the house fraudulently obtained is void, and is no license. The principle of relation has never been applied to such a case, nor is it necessary for the purposes of justice to extend it farther than to cases where the person enters under a license given him by law. In such cases, as the party injured had not the power to prevent the injury, it seems reason- able that he should be restored to all his remedies. The judgment must be reversed without costs, and a venire de novo awarded by Cortland common pleas. SECTION VI. Action under Mistake as to Permission. SAMUEL V. PAYNE. Court of King's Bench, 1780. [Reported 1 Doug. 359.] Action of trespass and false imprisonment, against Payne, a con- stable, and two others. The facts of the case were these: Hall, one of the defendants, charged the plaintiff with having stolen some laces from him, which he said were in the plaintiff's house. A search war- rant was granted by a justice of peace upon this charge, but there was no warrant to apprehend him. On the search, the goods were not found; however, Payne, Hall, and the other defendant, an assistant of Payne's, arrested the plaintiff, and carried him to the Poultry Compter on a Saturday, when no alderman was sitting, by which means he was detained till Monday, when, after examination, he was discharged. The cause was tried before Lord Mansfield, and a verdict found against all the three defendants. At the trial, his Lordship, and the counsel on both sides, looked upon the rule of law to be, tliat, if a felony has actually })een committed, any man, upon reasonable probable grounds of sus- picion, may justify apprehending the suspected person to carry him SECT. VI.] ELDER V. MORRISON. 651 before a magistrate; but that, if no felony has been committed, the apprehension of a person suspected cannot be justified by anybody. His Lordship therefore left it to the jury to consider, whether any felony had been committed. The rule, however, was considered as inconvenient and narrow; because, if a man charges another with felony, and requires an officer to take him into custody, and carry him before a magistrate, it would be most mischievous that the officer should be bound first to try, and at his peril exercise his judgment on the truth, of the charge. He that makes the charge should alone be answerable. The officer does his duty in carrying the accused before a magistrate, who is authorized to examine, and commit or discharge. On this ground, a motion was made for a new trial, and, after cause shown, the court held, that the charge was a sufficient justification to the constable and his assistants, and cited Ward's Case in Clayton, (Clayt. 44. pi. 76) 2 Hale's Pleas of the Crown, 84, 89, 91, and 2 Hawkins, B. 2, c. 12, and c. 13.^ The rule made absolute.^ ELDER V. MORRISON. Supreme Court, New York, 1833. [Reported 10 Wend. 128.] Error from the Orange common pleas. Morrison sued Elder in an action of assault and battery. The defendant pleaded the general issue, and gave notice of special matter. On the trial, the following facts appeared: The plaintiff, on the premises of one Milburn, offered for sale two horses at public auction, in pursuance of a previous notice. Woodward, a constable of Walkill, having in his hands a justice's execution against Milburn, was present and forbade the sale, claiming the horses under the execution and demanding possession of them, which the plaintiff refused to yield. Woodward demanded assistance from the bystanders; no one obeying him, he called upon the defend- ant by name to assist him in obtaining possession of the horses, and 1 None of these authorities come exactly up to the present case, which is there- fore the first determination of the point. In AYard's Case (which is very loosely reported), it would seem, that the goods had been actually stolen. The very point of this case had been agitated on a demurrer to a special justification, so Ions; ago as the reign of Hen. I\'. (Year Book, 7 Hen. IV. {). 3.5. pi. 3) and the court seems to have thought, that, if the cause of suspicion should appear reasonable, the justifi- cation would be good, though no felony were committed. But the case was adjourned {vide Ledwnck v. Catchpole, B. R. E. 23 Geo. III. Cald. 291). ^ The new trial came on before Lord Mansfield, at the sittings after this term, when a verdict was found against Hall, and for the other two defendants. 652 ELDER V. MORRISON. [CHAP. V. threatened him with legal proceedings if he did not obey. Woodward succeeded in obtaining possession of one of the horses, and then he, the plaintiff, and the defendant went into the stable where the other horse was, upon which a struggle ensued as to who should have the possession of that horse, in the course of which the defendant jerked the plaintiff about, who had hold of a halter which was upon the horse, elbowed him and threw him down, which was the assault and battery complained of. The defendant, under the notice attached to his plea, proved the rendition of a judgment against Milburn, the issuing of an execution thereon, and a deliver}^ of the writ to Woodward, and that by virtue thereof and of another execution subsequently received. Woodward, who was indemnified by the plaintiff in the execution, sold the horses. At the time of the levy. Woodward inquired of Milburn where his horses were, who pointed out the horses in question. The plaintiff offered to prove that he was the owner of the horses at the time of the taking by Woodward, which evidence was objected to by the defendant, but the objection was overruled and the evidence received; to which decision the defendant excepted. The jury found a verdict for the plaintiff with S25 damages, on which judgment was rendered. The defendant sued out a writ of error. Savage, C. J. For the plaintiff in error, it is argued that the officer, when indemnified by the plaintiff in the execution, is bound to sell the property; and that by the Re\ised Statutes, 2. R. S. 441, §80, it is enacted that when a sheriff or other public officer shall find resistance, or have reason to apprehend it in the execution of any process deliv- ered to him, he may command every male inhabitant of his county, or as many as he shall think proper, to assist him in overcoming such resistance, and in seizing and confining the resisters. The statute fur- ther requires that the officer shall certify to the court, from which the process issued, the names of the resisters, to the end that they may be punished for their contempt of such court. Id. § 81. And it is enacted that every person commanded by an officer to assist him, who shall refuse without lawful cause, shall be deemed guilty of a misdemeanor, and subject to fine and imprisonment. Id. § 82. The inference drawn by the counsel for the plaintiff in error from these premises is, that the person who comes in aid of an officer to overcome resistance, is justified, whether the officer is or not justified; and that the question of title to the property was not a proper subject of inquiry. On the part of the defendant in error, it is contended that if the principal be a trespasser, all persons acting in his aid or by his command are also trespassers; that the fair meaning of the statute is, that the officer shall be aided in the lawful execution of his process, and that such process must be against the individual whose person or property is attempted to be seized; that the process to authorize a justification must be against the person in possession of the property taken. It is certainly true that if the officer be guilty of a trespass, those who SECT. VI.] ELDER V. MORRISON. 653 act by his command or in his aid must be trespassers also, unless they are to be excused in oonsequence of the provision of the revised statutes. If a stranger comes in aid of an officer in doing a lawful act, as executing legal process, but the officer, by reason of some subsequent improper act, becomes a trespasser ah initio, the stranger does not thereby become a trespasser, Cro. Eliz. 181; Cro. Car. 446; but when the original act of the officer is unlawful, any stranger who aids him will be a trespasser, though he acts by the officer's command. Oystead v. Shed, 12 Mass. R. 511. The case in Massachusetts, just cited, was an action of tres- pass de bonis asportatis against Shed and three others; Shed and Fletcher justified as officers under WTits of attachment, the two other defendants justified as servants of Fletcher; the plaintiff replied, and the de- fendants demurred to the replications. The court adjudged Fletcher's plea bad, and the justification of the other two defendants failed of course; and their ignorance of the law, it was said, would not excuse their conduct or diminish in any degree the injury which the plaintiff sustained. The case of Leonard v. Stacey, 6 Mod. 140, is to the same effect. That was an action of trespass for entering the plaintiff's house and taking away his goods. The defendant justified that he came in aid of an officer in execution of a WTit of reple\'in. The plaintiff replied that he claimed property in the goods, and gave notice to the defendant before their removal. The court held the defendant was a trespasser ah initio, for though the claim should be made to the sheriff, yet if it be notified to him who comes in aid that claim is made, he ought to desist at his peril; thereby establishing the proposition, that if the officer is a trespasser, all those who act by his command or in his aid are also trespassers. Whenever a sheriff or constable has power to execute process in a particular manner, his authority is a justification to himself and all who come in his aid; but if his authority is not suf- ficient to justify him, neither can it justify those who aid him. He has no power to command others to do an unlawful act; the}' are not bound to obey, neither by the common law nor the statute, and if they do obey, it is at their peril. They are bound to obey when his com- mands are lawful, other^\^se not. The only hardship in the case is, that they are bound to know the law. But that obligation is universal ; ignorance is no excuse for any one. The counsel for the plaintiff in error insists that there is a difference between aiding in the original taking and in overcoming resistance. It seems to me there is no such distinction. If the taking was lawful, the resistance was unlawful; but if the taking was unlawful, the resistance was lawful. If the re- sistance was lawful, neither the officer nor those he commands to assist him can lawfully overcome that resistance. Nor does the fact of the officer's being indemnified, confer on him any authority which he had not without such indemnity; he may thereby be compelled to do an illegal act in selling the property of strangers to the execution, but he is a trespasser in doing so, as are all others who aid him. 654 WATSON V. STATE. [ciiAP. V. In any view of the subject which I can take, I am of opinion that the decision of the court of common pleas was correct, and the judgment should be affirmed.^ Judgment affirmed. WATSON V. STATE. Supreme CouPtX of Alabama, 1887, [Reported 83 Ala. 60.] Cloptox, J. The defendant was con\'icted on a charge of ha\ang committed an assault and battery on Harrison Ward. The only material question presented by the record, is whether the defendant is guilty of the offense charged, if he, without doing more, and using no excess of force, merely arrested, secured, and delivered him to the deputy-sheriff, who a few moments previously had called on the de- fendant to assist in making the arrest, informing him that he had a warrant for Ward's arrest, but in fact had no such warrant, having mistaken him for another person of the same surname, but diflPerent christian name. By section 4666 of Code of 1876, it is made the duty of every person, when required to do so by an officer, to assist him in making an arrest; and by section 4139, it is made a criminal offense, to refuse or neglect to obey the command of any sheriff, constable, or other officer having authority, when summoned or commanded to assist such officer in making an arrest. Any officer, authorized by law to make arrests, is empowered to summon or command necessary and proper assistance in apprehending criminals. A deputy-sheriff is authorized to make arrests. In 1 Bish. on Crim. Pro., § 185, the author says: "The officer, then, in making an arrest, or in securing his prisoner afterward, may, if he deems it neces- sary, call upon a bystander for help, or even command the aid of all persons in his precinct, and equally whether he is acting under a war- rant or without. A refusal to assist him is indictable, prov-ided he is proceeding by lawful authority ; or, if he is not, his command will be a justification to one who, knowing his official character, comes in good faith to his assi.stance." The power of the officer to command assistance, when necessary, is essential to the due execution of the criminal law, and to the protec- tion of society. This power, which extends to calling to his aid the j)ossc comitatus, oftentimes would be unavailing, especially in emer- gencies requiring prompt action and assistance, if the person summoned 1 See, however, Firestone v. Rice, 71 Mich. 377. — Ed. SECT. VI.] COMMONWEALTH V. CROTTY. 655 was required to examine the papers of the officer, and determine his authority to make the particular arrest — whether it would be safe to assist him. The officer is empowered by the statute to determine the necessity and time of assistance, and prompt obedience is the duty of the person summoned or commanded. The necessity does not admit of delay. The officer, if acting without warrant, may be a trespasser; but the private person may rely upon his known official character and his call for aid, and will be protected in doing what he is not at liberty to refuse or neglect. It is sufficient if the general official authority of the person, calling for aid, to make arrests, is known. WTien his general power is known, his call will justify the citizen in yielding obedience, unless he has notice of the want of authority in the particular ease in which assistance is required. It would be a strange legal anomaly, to punish a citizen for obeying the command of an officer invested with lawful authority to command in the matter, and at the same time subject him to punishment if he refuses or neglects to obey. The duty is not devolved, to inquire whether the officer has a process authorizing the arrest, or into the legality of the process. Mc:\Iahon v. Green, 34 Vt. 69; Reed v. Rice, 2 J. J. Mar. 44. Several of the rulings of the court conflict with the rule herein declared. It is unnecessary to specify them. Reversed and remanded. COMMONWEALTH v. CROTTY. Supreme Judicial Court of Massachusetts, 1865. [Reported 10 All. 403.] Bigelow, C. J. We cannot entertain a doubt that the warrant on which the officer attempted to arrest one of the defendants at the time of the alleged riot was insufficient, illegal, and void. It did not contain the name of the defendant, nor any description or designation by which he could be known and identified as the person against whom it was issued. It was in effect a general warrant, upon which any other individual might as well luixe been arrested, as being included in the description, as the defendant himself. Such a warrant was contrary to elementary principles, and in direct violation of the constitutional right of the citizen, as set forth in the Declaration of Rights, article 14, which declares that every subject has a right to be secure from all unreasonable searches and seizures of his person, and that all war- rants, therefore, are contrary to this right, if the order in the warrant to a cival officer to arrest one or more suspected persons or to seize their property be not accompanied with a special designation of the persons or objects of search, arrest, or seizure. This is in fact only a declaration U 656 CHASE V. INGALLS. [CHAP. V. of an ancient common law right. It was always necessary to express the name or give some description of a party to be arrested on a war- rant; and if one was granted with the name in blank, and without other designation of the person to be arrested, it was void. 1 Hale, P. C, 577. 2 lb., 119. Foster, 312. 7 Dane Ab., 248. 1 Chit. Crim. Law, 39. Mead v. Haws, 7 Cow. 332, and cases cited. This rule or principle does not prevent the issue and service of a warrant against a party whose name is unknown. In such case the best description possible of the person to be arrested is to be given in the warrant; but it must be sufficient to indicate clearly on whom it is to be served, by stating his occupation, his personal appearance and peculiarities, the place of his residence, or other circumstances by which he can be identified. 1 Chit. Crim. Law, 39, 40. The warrant being defective and void on its face, the officer had no right to arrest the person on whom he attempted to serve it. He acted without warrant and was a trespasser. The defendant whom he sought to arrest had a right to resist by force, using no more than was necessary to resist the unlawful acts of the officer. An officer who acts under a void precept, and a person doing the same act who is not an officer, stand on the same footing. Shadgett v. Clipson, 8 East, 328 Rex V. Hood, 1 Mood. C. C. 281; Hoye v. Bush, 2 Scott N. R. 86 Pearce v. Atwood, 13 Mass. 324, 344; Sanford v. Nichols, lb. 286 Commonwealth v. Kennard, 8 Pick. 133; and any third person may lawfully interfere to prevent an arrest under a void warrant, doing no more than is necessary for that purpose. 1 Chit. Crim. Law, 44. The King v. Osmer, 5 East, 304-308. The defendants, therefore, in resisting the officer in making an ar- rest under the warrant in question, if they were guilty of no improper or excessive force or violence, did not do an unlawful act by lawful means, or a lawful act by unlawful means, and so could not be con- victed of the misdemeanor of a riot, with which they are charged in the indictment. The instructions under which the case was submitted to the jury did not meet this aspect of the case. It must therefore go to a new trial. Exceptions sustained. t CHASE V. INGALLS. Supreme Judicial Court of Massachusetts, 1867. [Reported 97 Mass. 524.] Wells, J. The execution, upon which the plaintiff was arrested and committed, was regular in form, and bore the affida\at and cer- tificate of a magistrate as provided by the Gen. Sts. c. 124, § 5. Prima SECT. VI.] CHASE V. IXGALLS. 657 facie, it is a complete defense to the officers acting in accordance with its directions. The defect relied on by the plaintiff to deprive them of its protection is the fact, now admitted, that the magistrate who made the certificate was the attorney of record of the party in whose favor the execution issued. It is settled law that an officer is protected by his precept, if the court or magistrate had authority such as the precept assumes. It is not his duty to inquire into the particular facts of the case, if the general power appear and the process be regular. He cannot be affected l)y any irregularity occurring prior to the issue of his precept, nor by the existence of any fact which deprives the court or magistrate of juris- diction in that particular case, provided the defect be not disclosed by the precept itself, nor known to the officer. Even if the defect be one which renders the precept void in its operation between the parties, or for the transfer of property, yet it will not sul)ject the officer to liability as a trespasser. See Sandford v. Nichols, 13 Mass. 28G, and cases cited to this point by the defendants. The cases relied upon by the plaintiff do not support any doctrine inconsistent with this. The decision in Pierce v. Atwood, 1-3 Mass. 324, 344, is put expressly upon the ground that the want of au- thority in the magistrate appeared from the warrant itself. In Fishei" V. McGirr, 1 Gray, 45, the want of jurisdiction arose from the very character of the proceeding, which the warrant disclosed. In Piper v. Pearson, 2 Gray, 120, the officer was held liable be- cause his warrant did not show affirmatively an apparent juris- diction, there being none in fact, and the burden being upon him to establish his justification. Where the proceeding is, in its nature, one in which the magistrate has no right to exercise the authority under which the officer assumes to act, he is held responsible although acting in good faith; because in such case the want of authority is disclosed upon the face of the pre- cept. But where the want of authority arises from some fact that is personal to the magistrate, or peculiar to the proceedings in the partic- ular case, the precept cannot disclose it, and tlie officer is not to be held liable without actual knowledge of the fact. The plaintiff offered no e\'idence to show that the defendants had actual knowledge that the certifying magistrate was disqualified; not deeming it to be material whether they knew it or not; and the testimony of the defendant Ingalls, as reported, would not warrant the jury in finding such knowledge. He is not entitled now to have a jury to determine that question. Upon another ground we think the verdict must stand. The arrest was in accordance with the authority and directions of the precept. It is a proper mode of serving an execution, unless the statute (Gen. Sts. c. 124, § 5) restricts the right. The restriction applies to execu- tions " issued for debt or damages in a civil action, except in actions of 658 POOLER V. REED. [cHAP. V. tort." Perhaps the term "civil action" might be held to embrace suits for divorce. But the restriction clearly does not extend to all cases that might be termed "Civil actions." It is limited to such only as are for the recovery of " debt or damages." This limitation, and the exception of "actions or tort," which follows, indicate that the re- M' striction is not general, and was not intended to apply to such war- rants of the court as may issue to enforce its decrees in special proceed- ings like this of libel for divorce. The allowance of alimony, or the award to the wife of her own or a part of the husband's estate upon granting a divorce, is not a debt nor damages, in the sense of the statute. No affidaAat and certificate of a magistrate were necessary; and therefore the exceptions must be overruled. / V POOLER V. REED. Supreme Judicial Court of Maine, 1882. [Reported 73 Me. 129.] LiBBEY, J. The defendant justifies the arrest and imprisonment of the plaintiff, as constable of Bangor, having a legal mittimus therefor. He thus puts directly in issue his legal capacity as such officer. .-— jjjg appointment to and acceptance of the office of justice of the peace, after his election and qualification as constable, must be held I to be a surrender of the office of constable. Stubbs v. Lee, 64 Maine, ' 195. He was an officer de facto when he made the arrest, and while acting as such officer, his acts would be valid as to third parties; and as be- tween them his title to the office could not be tried; but when he is a party and justifies his acts as such officer, he must show that he has a legal title to the office. Stubbs v. Lee, 64 Maine, 195; Fowler v. Bebee, 9 Mass. 231; Sheehan's Case, 122 Mass. 445; Green v. Burke, 23 Wend. 490; People v. Hopson, 1 Denio, 574; Reddle v. Bedford, 7 Serg. & R. 386; Parker v. Luffborough, 10 Serg. & R. 249; Keyser v. McKissan, 2 Rawle, 139. In accordance with the agreement of the parties, The action must stand for trial. Appleton, C. J., Barrows, Virgin, Peters, and Syivionds, JJ., concurred. SECT. VI. J LOWENBERG l'. ROSENTHAL. 659 JEFFRIES V. HARGIS. Supreme Court of Arkansas, 1887. [Reported 50 Ark. 65.] CocKRiLL, C. J. This is an action of trespass brought by appellant against the appellee. It is a petty controversy about the damage done to a piece of wild land by entering upon it and cutting and carrying away a few trees. The defendant had bought the right to cut the tim- ber from a tract adjoining the plaintiff's, and through an apparent mis- understanding as to where the dividing line lay, entered upon the land in controversy. Counsel upon Ijoth sides have confined their inquiries to questions arising on the charge to the jury as to what constitutes a trespass, and what evidence was competent to prove the boundary line between the two estates.^ The abstract goes no farther, and we do not, therefore, go beyond it. . . . The court also instructed the jury that if the defendant crossed the boundary line between the two tracts, through mistake, he was not guilty of trespass, notwithstanding he cut and carried away the trees. It was the defendant's duty to know the boundaries of his own land and keep within them, and ignorance thereof would not justify a tres- pass upon his neighbor's land. The judgment must be reversed and the cause remanded. LOWENBERG v. ROSENTHAL. Supreme Court of Oregon, 1889. [Reported IS Ore. 178.] Thayer, C. J.^ The special findings established the fact that the appellants took and carried away timber, or trees, standing or being upon the respondents' land, to the amount of 3,800 cords of wood, of the value of $380, without any lawful authority for taking it, although they had probable cause to believe, and did believe, at the time they carried it away, that the owners of the land had authorized them to 1 The opinion upon this point of evidence is omitted. — Ed. * Only so much of the opinion as discusses the question of authority is here given. — Ed. 660 SHORTER V. PEOPLE. [cHAP. Y. do SO. These facts, as a matter of law, clearly created a liability on the part of the appellants for the \alue of the wood. The appellants believing, and having probable cause to believe, that the owners of the land had authorized them to take the wood, did not lessen their liability. If one person takes and carries away the property of another without lawful authority to do so, he becomes liable for its value, what- ever his belief may have been as to his right to take it. To authorize one man to take the property- of another, he must have had the latter's consent to take it. His belief in his right to take it, though he have reasonable grounds therefor, will not be a sufficient justification for the act. H SHORTER V. PEOPLE. ^ Court of Appeals of New York. 1849. [Reported 2 Comstock, 193.] Henr}' Shorter, a negro, was indicted for the murder of Stephen C. Brush, and tried at the Erie County Oj'er and Terminer in November, 1848.^ The evidence having closed, Justice Hoyt, presiding at the trial, proceeded to charge the jury at large upon the case, and having done so, the counsel for the prisoner requested the court to charge that if the deceased struck the first blow, and if there was reasonable ground to apprehend a design on the part of the deceased to do the prisoner some great personal injury, and the i)risoner believed that there was inuninent danger of such design being accomplished, it was a case of justifiable homicide, although he might he mistaken in such belief; and that the question was not whether such danger existed, but whether the prisoner believed it to exist. The court refused so to charge, but on the contrary charged that to render the killing justifiable the jurv should be satisfied that there was in fact imminent danger that the deceased would commit some great personal injury upon the prisoner. The prisoner's counsel excepted to this pa it of the charge and to the refusal to charge as requested. The jury found the prisoner guilty of murder. A bill of exceptions was made and the case removed by cer- tiorari into the Supreme Court, where a new trial was refused. The prisoner brought error to this court. Bronson, J, When one who is without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable ground for ap|)rehending a design to take away his life, or do him some great bodil}' harm, and there is reasonable ground for ^ The evidence, arguments, and part of the opinion are omitted. I SECT. Yl.\ SHORTER V. PEOPLE. 661 believing the clanger imminent that such design will be accomplished, I think he ma}' safe!}' act upon appearances, and kill the assailant, if that l)e necessaiy to avoid tlie apprehended danger ; and the killing will be justifiable, although it ma}' afterwards turn out that the appear- ances were false, and tliere was i/i fact neitiier design to do him serious injury, nor danger that it wouUl be done. He must decide at his peril upoa the force of the circumstances in which he is placed, for that is a niatter which will be subject to judicial review. But he will not act at the peril of nuiking that guilt, if appearances prove false, wliich would be innocence had they proved true. I cannot better illustrate my meaning than by taking tlie case put by Judge, afterwards Chief Justice Parker, of Massachusetts, on the trial of Thomas O. Selfridge. " A. in the peaceable pursuit of his affairs sees B. walking rapidly towards liim with an outstretclied arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A. who has a club in his hand, strikes B. over the head, before, or at tlie instant the pistol is discharged ; and of the wound B. dies. It turns out that the pistol was loaded with powder only, and that the real design of B. was only to terrif}^ A." Upon this case the judge inquires, " Will any reasonable man sa}' that A. is more criminal than he would have been if there had been a bullet in the pistol ? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol was loaded, — a doctrine which would entirel}' take away the right of self defence. And when it is considered that the jury who tr}' the cause, and not the party killing, are to judge of the reasonable grounds of his appri^hension^ no danger can be sup- posed to flow from this principle." The judge had before instructed the jury that, "when from the nature of the attack there is reasonable ground to believe that there is a design to destroy his life, or commit any felony upon his person, the killing of the assailant will be excus- able homicide,- although it should afterwards appear that no felony was intended" Selfridge's Trial, p. 160; 1 Russ. on Crime, 699, ed. of '24; p. 485, note, ed. of '36. To this doctrine I full\' subscribe. A different rule would la}' too heavy a burden upon poor humanity. I have stated the case of Selfridge the more fully, because it is not only an authority in point, but it is one which the revisers professed to follow in framing our statute touching this question. I shall not stop to consider the common law distinctions between justifiable and excusable homicide, because our statute has placed kill- ing in self defence under the head of justifiable homicide. 2 R. S. 660, s. 3. The Massachusetts case lays down no new doctrine. The same principle was acted on in Levett's Case.^ Foster (Crown Law, p. 299) says of this case, " Possibly it might have been better ruled man- ' The learnerl jurlsje heiP stated Leyott's Case, ante. — Ed. C}C)2 SHORTER V. PEOPLE. [CHAP. V. slaughter at common law, due circumspection not having been used." I do not understand him as questioning the principle of the decision, but as only expressing a doubt whether the principle was properly ap[)lied. He calls it nothing more than a case of manslaughter, when, if a man may not act upon appearauci's, it was a plain case of murder. So far as I have observed, no other writer upon criminal law has ques- tioned, in any degree, the decision in Levett's Case; and most of them have fully approved it. East, in his I'leas of the Crown (vol. i. p. 274, 375), has done so. Hale- (1 P. C. 42, 474) mentions it among cases where ignorance of the fact will excuse froni all blame. Haw- kins (1 P. C. 84, Curwood's ed.) saj's the killing had not the appear- ance of a fault. Russell (on Crimes, vol. i. p. 550, ed. of 1836) approves the decision, which he introduces with the remark that " important considerations will arise in cases of this kind [he was speaking of homicide in defence of one's person, habitation, or prop- erty] as to the grounds whir-h the party killing had for supposing that the person slain had a felonious design against him ; more especially where it afterwards appears that no such design existed." Roscoe, (Crim. Ev. p. G3i)) sajs, " It is not essential that an actual felony should be about to be committed in oider to justify the killing. If the circumstances are such as that, after all reasonable caution, the party suspects that the felony is about to be immediately committed, he will be justified." And he then gives Levett's Case as an example. The case of Sir William Hawksworth, who, through his own fault, was shot bj- the keeper of his park, who took him for a stranger who had come to destroy the deer, went upon the same principle. 1 Hale's P. C. 40 ; 1 East, P. C. 275 ; 1 Russ. on Cr. 549. Other cases are put in the books where the killing will be justified b^' appearances, though they afterwards prove false. A general, to try the vigilance or courage of his sentinel, comes upon the sentinel in the night in the posture of an enemy, and is killed. There the ignorance of the sen- tinel that it was his general, and not an enemy, will justif}' the killing. 1 Hale's P. C. 42 ; 1 East, P. C. 275 ; 1 Russ. 540. The case men- tioned by Lord Hale, which was before him at Peterborough, where a servant killed his master, supposing he was shooting at deer in the corn in obedience to his master's orders, belongs to the same class. 1 Hale's P. C. 40, 47(> ; 1 Russ. 540. In Rampton's Case (Kelyng Rep. 41) the defendant killed his wife with a pistol which he had found in the street, after ascertaining, as he supposed, b}- a trial with the ramrod, that it was not loaded, tliough in fact it was charged with two bullets. This was adjudged to be manslaughter, and not merel}' misadventure. Foster (Crown Law, 263, 4) calls this a hard case, and thinks the man should have been wliolly acquitted, on the ground that he exercised due caution, — the utmost caution not being neces- sary in such cases. Rut if the decision was right, as I am inclined to think it was, for the want of proper caution, still the case goes on the ground that the degree of guilt may be affected b}- appearances which SECT. VI.] SHORTER V. PEOPLE. 663 afterwards prove false ; for if he had not tried the pistol, it would have been murder. Foster (p. 265) mentions a case which was tried before him, where the prisonei had sliot his wife with a gun, which he supposed was not loaded. The judge, behig of opinion that the pris- oner had reasonable ground to believe that the gun was "not loaded, directed the jury, that if tliey were of the same opinion, they should acquit the prisoner; and he was acquitted. In Meade's Case (1 Le win's Cr. Cas. 184) the prisoner had killed with a pistol one of a great number of persons who came about liis house in the night time, singing songs of menace, and using violent language. Llolroyd, J., told the jury that if there was nothing but the song, and no apjjear- unce of violence, if they believed there was no reasonable (jround for apprehending danger, the killing was murder. And in The People i'. Rector (19 Wend. 569} Coweu, J., said alarm on the part of the prisoner, on apparent though unreal grounds, was pertinent to the issue. In The U. S. v. Wiltberger (3 Wash. C. C. 515, 521) the judge told the jury that, for the purpose of justifying the kiUing, the intent of the deceased to commit a felony must be apparent^ which would be sufficient, although it should afterwards turn out that the real intention was less criminal, or even innocent. He afterwards added that the danger must be imminent, — meaning, undoubtedly, that it must wear that appearance. The State v. Wells (1 Coxe N. J. Rep. 424) is entirely consistent with this doctrine. The Supreme Court of Tennessee has gone still further, and held that one who kills another, believing himself in danger of great bodily harm, will be jus- tified, although he acted from cowardice, and without any sufficient ground, in the appearances, for the killing. Grainger v. The State, 5 Yerger, 459. This was, I think, going too far. It is not enough that the party believed himself in danger, unless the facts and circum- stances were such that the jury can sa}' he had reasonable grounds for his belief. We have been referred to two cases where it was said, in substance, that the killing must be necessary : Regina v. Smith, 8 Car. & Pay. 160, and Regina v. Bull, 9 id. 22; and other authorities to the same effect might have been cited. The life of a human being must not be taken upon slight grounds ; there must be a necessity, either actual or apparent, for the killing, or it cannot be justified. That, I think, is all that was meant by such remarks as have been mentioned. The unqualified language that the killing must be necessary has, I think, never been used when attention was directed to the question whether the accused might not safely act upon the facts and circumstances as they werb presented at the time. 1 have met with no authority for saying, that a homicide which would be justifiable had appearances proved trae, will be criminal when they prove false. 664 FETTER V. BEAL. [CHAP. VI. CHAPTER VI. MEASURE OF COMPENSATION. SECTION I. Entire Damages. FETTER V. BEAL. King's Bench, 1698: 1701. [Reported 1 Ld. Ray. 339, 692.] .^ Special action of trespass and battery for a battery committed by the defendant upon the plaintiff, and breaking his skull. The plaintiff declares of the battery, etc., and that he l)rought an action for it against the defendant, and recovered to £11 and no more; and that after that recovery part of his skull by reason of the said battery came out of his head, per quod, etc. The defendant pleaded the said recovery in bar. Upon which the plaintiff demurred. And Shower for the plaintiff argued, that this action differed from the nature of the former, and therefore would well lie, notwithstanding the recovery in the other; because the recovery in the former action was only for the bruise and battery, but here there is a maihem by the loss of the skull. As if a man brings an action against another for taking and detaining of goods for two months, and afterwards he brings another action for taking and detaining for two years, th,)? recovery in the former action is not pleadable in bar of the second. If death ensues upon the battery of a servant, this will take away the action per quod servitium amisit. And then if a consequence will take away an action, for the same reason it will give an action. If a man brings an action for uncovering his house, bj^ which his goods were spoiled, and afterwards by reason of the said uncovering new goods are spoiled, he shall have a new action. Quod Holt negavit. And per totam curiam, the jury in the former action con- sidered the nature of the wound, and gave damages for all the damages that it had done to the plaintiff"; and therefore a recovery in the said action is good here. And it is the plaintiff's fault, for if he had not been so hasty, he might have been satisfied for this loss of the skull salo. , Judgment for the defendant, nisi, etc. SECT. I.l FETTER V. BEAL. 665 Sir Bartholomew Shower moved in this case for judgment for the plaintiff, because this special subsequent damage is a sufficient founda- tion for an action, and that for great reason, because the jury could not have consideration of it in giving damages. And he compared it to the case of a nuisance, that a man might have an action for every new dropping of the water from the eaves of the house. 2. There is a maim laid here, and therefore the prior recovery in the action of assault cannot be a bar. Mr. Montague, of the same side said, that if A breaks a sea wall, and the owner of the land recovers damages for it ra, an action, and erects a new wall,, and before it is dry and settled the sea throws it down again, and overflows the land, etc., for this special subsequent damage the owner may have a new action. Holt, Chief Justice. This is a new case to which there is no parallel in the books. Every one shall recover damages in proportion to his prejudice which he hath sustained; and if this matter had been given in evidence, as that which in probability might have been the consequence of the bat- tery, the plaintiff would have recovered damages for it. The injury, which is the foundation of the action, is the battery, and the greatness or consequence of that is only in aggravation of damages. In some cases the damage is the foundation of the action, as in the action by the master for battery of his servant, per quod sermtium aviisit, but here the battery only is the foundation of the action, and this damage, which might probably ensue, might and ought to have been gi\'en in evidence, and must be intended to have been given in ex-idence in the former action, and that the jury gave damages for all the hurt that he suffered; for if the nature of the battery was such, as probably to pro- duce this effect, the jury might give damages for it before it happened. As to the case of the sea wall, the plaintiff would recover damages enough in the first action, to rebuild it; and if he rel)uilds it ill, the fault is his own. And as to the nuisance every new dropping is a new nuisance. As to the maihem, that is nothing; for a recovery in battery, etc. is a bar in appeal of maihem, 4 Co. 43. a. because in battery the plaintiff may give a maihem in evidence, and recover damages for it. And Holt, C. J., said, that the original cause was tried before him eight years ago, and the plaintiff and defendant appeared to be both in drink, and the jury did not well know which of them was in fault, and therefore they gave the less damages. The plaintiff could not ob- tain judgment, the court inclining strongly against him. 06G CASSELBERRY V. FORQUER. [CHAP. VI. ^' CASSELBERRY v. FORQUER. Supreme Court of Illinois, 1862. [Reported 27 III. 170.] On the 24th of May, 1854, Casselberry leased from William Forquer certain land in St. Clair county for three years, for $150 a year, one- half payable semi-annually on the 25th of December and March en- suing. On the 3rd day of June, 1857, Susannah Forquer brought two suits on said lease, for $75 each, before the same justice of the peace, and filed her accounts, one for rent from 1st of March to 25th December, 185G, the other for rent from 25th December, 1856, to 1st March, 1857. On the 13th of June, 1857, judgments were rendered in each case for $75, and costs, against Casselberry, from which he appealed to the St. Clair Circuit Court. After two more installments were due, to wit, on the 4th of March, 1858, Mrs. Forquer brought a third suit on said lease, before a justice of the peace, and filed her account for rent from March 1st, 1857, to December 25th, 1857, and on the 12th of March, 1858, recovered another judgment for $75, and costs, which was also appealed to said Circuit Court. On the 28th of April, 1858, Mrs. Forquer brought a fourth suit on said lease, before a justice of the peace, and filed her account for rent from December 25th, 1857, to March 1st, 1858. She recovered another judgment for $75, and costs, which was also appealed to said Circuit Court. The cases were continued in said court till the September term, 1859, when they were submitted together to the court for trial. On the trial, Mrs. Forquer introduced in evidence said lease, made by William Forquer to Casselberry. Also, the last wnll of William Forquer, duly proved and recorded in the County Court of said county, on the 7th of October, 1855, by which he de\'ised to plaintiff said lease. The defendant then produced in evidence a decree in partition in the St. Clair Circuit Court, at its March term, 1856, wherein the parties to this suit, and the heirs and devisees of William Forquer, were com- plainants or defendants ; ordering the sale of the leased premises, among other lands, and a deed made by the commissioners under said decree, of more than one-half of said leased premises to Joseph Vellinger, dated May 31st, 1856. It was admitted that, for a small advance on his purchase, Vellinger conveyed said land to Casselberry, by deed, dated April 27, 1857. Plaintiff below then proved that, after said decree and sales, said decree was reversed in the Supreme Court of this State, in Januar\-, 1859. Plaintiff then introduced in evidence the bill in chancery on which said decree was founded. The court took the cases under advisement, and at the March term, 1860, rendered judgment for $75, and costs, in each case. Casselberry SECT, I.] DARLEY MAIN COLLIERY CO. V. MITCHELL. 667 moved for a new trial in each case, because the several findings were contrary to law and to evidence; which motions were severally over- ruled by the court, and excepted to, and the cases severally appealed to the Supreme Court, and by consent to be heard at Springfield. All the cases are settled by the following opinion of the Court. Breese, J. There is really but one question presented by this record, and that is, the right to sue separately for each of the claims after two of them had become due and payable. The question about the lease, and the rights of these parties under it, cannot be considered, for the court, in the partition case in chancery, the proceedings in which are made part of this case, never had any jurisdiction over the lease- hold interest of Susannah Forquer to sell it, and the sale of it was therefore void. When the several payments reserved by the lease were due, suit could be brought on each payment successively, as they fell due. But if more than one payment be due at the time of suit brought, they must be consolidated into one suit, otherwise a recovery in one could be pleaded in bar of a recovery in the other. Here the facts show, that at the institution of each of these suits, two payments, of seventy-five dollars each, were due, and a separate recovery allowed. This cannot be done. In the case of Camp v. Morgan, 21 111. 258, this court said, , the doctrine was well settled that a plaintiff cannot so divide an entire demand, or cause of action, as to maintain several actions for its re- covery. When these suits were brought, there was an entire demand existing against the defendant in each case, of one hundred and fifty dollars, then due and payable. Suit should have been brought for the entire demand, all of them arising out of the same transaction. The judgment is reversed, and the cause remanded, with direction to dismiss the several suits. Judgment reversed. DARLEY MAIN COLLIERY CO. v. MITCHELL. House of Lords, 1886. [Reported 11 App. Cas. 127.] Lord Halsbury, L. C. My Lords, in this case the plaintiff, the owner of land upon the surface, has sued the lessee of certain seams of coal below and adjacent to the plaintiff's land for having disturbed the plaintiff in the enjoyment of his property by causing it to subside. The defendants before and up to the year 1868 have worked, that is to say, excavated, the seams of coal, of which they were lessees. Their excavation caused a subsidence of the ground, for which they acknowl- edged their liability and made satisfaction. There were other sub- sidences after this, and as the case originally came before your Lord- 668 DARLEY MAIN COLLIERY CO. V. MITCHELL. [cELiP. VI. ships, it was matter of inference only whether these subsidences were or were not in some way connected with, if not forming part of, the original subsidence. The parties have now by an admission at your Lordships' bar, placed the matter beyond doubt. It has been agreed that the owner of the adjoining land worked out his coal subsequently to 1868. Thaf if he had not done so there would have been no further subsidence, and if the defendants' coal had not been taken out, or if sufficient support had been left, the work- ing of the adjoining owner would have done no harm. Under these circumstances, the question is whether the satisfaction for the past subsidence must be taken to have been equivalent to a satisfaction for all succeeding subsidences. No one will think of disputing the proposi- tion that for one cause of action you must recover all damages incident to it by law once and for ever. A house that has received a shock may not at once shew all the damage done to it, but it is damaged none the less then to the extent that it is damaged, and the fact that the damage only manifests itself later on by stages does not alter the fact that the damage is there; and so of the more complex mechanism of the human frame, the damage is done in a railway accident, the whole machinery is injured, though it may escape the eye or even the consciousness of the sufferer at the time; the later stages of suffering are but the manifesta- tions of the original damage done, and consequent upon the injury orig- inally sustained. But the words " cause of action " are somewhat ambiguously used in reasoning upon this subject; what the plaintiff has a right to complain of in a Court of Law in this case is the damage to his land, and by the dam- age I mean the damage which had in fact occurred, and if this is all that a plaintiff can complain of, I do not see why he may not recover toties quoiies fresh damage is inflicted. Since the decision of this House in Bonomi v. Backhouse it is clear that no action would lie for the excavation. It is not, therefore, a cause of action ; that case established that it is the damage and not the exca- vation which is the cause of action. I cannot understand why every new subsidence, although proceeding from the same original act or omission of the defendants, is not a new cause of action for which damages may be recovered. I cannot concur in the view that there is a breach of duty in the original excavation. In Rowbotham v. Wilson, Cresswell, J., said that the owner of the mines might have removed every atom of the minerals without being liable to an action, if the soil above had not fallen; and what is true of the first subsidence seems to me to be necessarily true of every subse- quent subsidence. The defendant has originally created a state of things which renders him responsible if damage accrues; if by the hypothesis the cause of action is the damage resulting from the defend- ant's act, or an omission to alter the state of things he has created, why may not a fresh action be brought? A man keeps a ferocious dog which SECT. I.] DARLET MAIN COLLIERY CO. V. MITCHELL. 669 bites his neighbour; can it be contended that when the bitten man brings his action he must assess damages for all possibility of future bites? A man stores water artificially, as in P^letcher v. Rylanfls; the water escapes and sweeps away the plaintiff's house; he rebuilds it, and the artificial reservoir continues to leak and sweeps it away again. Cannot the plaintiff recover for the second house, or must he have assessed in his first damages the possibility of any future invasion of water flowing from the same reservoir? With respect to the authorities the case of Nicklin v. Williams was urged by the Attorney-General as an authority upon the question now before your Lordships, by reason of some words attributed to Lord Westbury in Bonomi v. Backhouse. If Lord Westbury really did use the words attributed to him, it is, I think, open to doubt in what sense they are to be understood. Baron Parke in that case delivered the judgment against the plaintiffs recovering any subsequently accruing damage, because, he said, the cause of action was the original injury to the right by withdrawing support. That principle is admittedly wrong, and was expressly held to be WTong in Bonomi v. Backhouse since if that had been law there could have been no answer to the plea of the Statute of Limitations in that case. It is difficult to follow the Master of the Rolls when he says it was not necessary to overrule Nicklin v. Williams by that decision. It seems to me to have been the whole point decided in Nicklin v. Williams, and how that case so de- cided can be an authority for anything I am at a loss to understand. I think the decision of this case must depend as matter of logic upon the decision of your Lordship's House in Bonomi. t). Backhouse, and I do not know that it is a very legitimate inquiry, when a principle has been laid by a tribunal from which there is no appeal, and which is boimd by its own decisions, whether that principle is upon the whole advantageous or convenient; but if such considerations were permissible, I think Cockburn, C. J., in his judgment in Lamb v. Walker establishes the balance of convenience to be on the side of the law, as established by Bonomi v. Backliouse. I cannot logically distinguish between a first and a second, or a third, or more subsidences, and after Bonomi v. Backliouse it is impossible to say that it was WTong in any sense for the defendant to remove the coal. Cresswell, J., has said, and I think rightly, that he might remove every atom of the mineral. The wrong consists, and, as it appears to me, whollj^ consists, in causing another man damage, and I think he may recover for that dam- age as and when it occurs. For these reasons, I think that the judgment appealed from should be affirmed with costs. Lord Bramwell and Lord Fitzgerald delivered concurring opinions; Lord Blackburn dissented. 670 ALDWORTH V. LYNN. [chap. VI. ALDWORTH v. LYNN.' Supreme Judicial Court of Massachusetts, 1891. [Reported 153 Mass. 53.] Knowlton, J. This action is to recover damages for a use of the defendant's premises which was injurious to the plaintiff's adjoining land; or, in other words, for the maintenance of a nuisance. The plain- tiff excepted to the ruling that she was entitled to recover damages only to the date of her wTit, and contended that the dam and pond were permanent, and that she was entitled to damages for a permanent injury to her property. An erection unlawfully maintained on one's own land, to the detriment of the land of a neighbor, is a continuing nuisance, for the maintenance of which an action may be brought at any time, and damages recovered up to the time of bringing the suit. Prentiss v. Wood, 132 Mass. 486. Wells v. New Haven & Northampton Co. 151 Mass. 46, and cases there cited. That it is of a permanent character, or that it has been continued for any length of time less than what is necessary to acquire a prescriptive right, does not make it lawful, nor deprive the adjacent landowner of his right to recover damages. Nor can the adjacent landowner in such a case, who sues for damage to his property, compel the defendant to pay damages for the future. The defendant may prefer to change his use of his property so far as to make his conduct lawful. In the present case, we cannot say that the defendant may not repair or reconstruct its dam and reservoir in such a way as to prevent percolation, with much less ex- penditure than would be required to pay damages for a permanent injury to the plaintiff's land. As was pointed out in Wells v. New Haven & Northampton Co., ubi supra, it appeared in Fowle v. New Haven & Northampton Co. 107 Mass. 352, and 112 Mass. 334, that the parties in a former suit had elected to treat the injury as permanent, and the plaintiff has accepted entire damages for the future as well as the past, and on that ground, which is adverted to in the last opinion, the case was well decided. In Goslin v. Corry, 7 Man. & G. 342, 345, where a defendant, on the trial of an action for a libel, permitted evi- dence to be given of damage caused after action brought, Tindal, C. J. said: "By permitting this evidence to be given, the defendant may possibly have escaped having a second action brought against him. It was, therefore, far from an impolitic thing to allow damages to be assessed for the whole cause of complaint in one action." So far as there are intimations in the successive opinions in Fowle v. New Haven & Northampton Co. which seem to make the case an authority for the plaintiff's contention in the case at bar, we are not inclined to follow them. The ruling was correct, and the plaintiff's exceptions must be overruled. SECT. I.] STODGHILL V. CHICAGO, BURLINGTON & QUINCY R. R. CO. 671 STODGHILL v. CHICAGO, BURLINGTON & QUINCY RAILROAD CO. Supreme Court of Iowa, 1880. [Reported 53 la. 341.] RoTHROCK, J. WTien the earth was deposited in the channel of the creek and raised to a sufficient height to cover over the bridge and make a soHd embankment upon which to lay the railroad track, the water in the creek was at once turned into the new channel. The principak question in the case is whether the judgment for damages in favor of Christopher Stodghill was a full adjudication for all in- juries to the land, not only up to the commencement of that suit, but for all that might thereafter arise. In Powers v. Council Bluffs, 45 Iowa, 652, the question being as to what is a permanent nuisance, it was held that where it is of such character that its continuance is necessarily an injury, and that when it is of a permanent character that will continue without change from any cause but human labor, the damage is original, and may be at once fully estimated and compensated; that successive actions wall not lie, and that the statute of limitations commences to run from the time of the commencement of the injury to the property. That was a case where the plaintiff sought to recover damages against the city for diverting the natural channel of a stream, called Indian Creek, by excavating a ditch in a street in such a manner that it widened and deepened by the action of the water, so as to injure plaintiff's lot abutting upon said street. The same rule was recognized in Towm of Troy V. Cheshire Railroad Co., 3 Foster (N. H.), 83. In that case the defendant constructed the embankment of its railroad upon a part of a highway. The action was by, the town to recover damages. The plaintiff claimed that it was entitled to recover for the damages for the permanent injury. The court said : " The railroad is in its nature, design and use, a permanent structure, which cannot be assumed to be liable to change; the appropriation of the roadway and materials to the use of the railroad is, therefore, a permanent diversion of that property to that new use, and a permanent dispossession of the town of it as the place on which to maintain a highway. The injury done to the town is, then, a permanent injury, at once done by the construc- tion of the railroad, which is dependent upon no contingency of which the law can take notice, and for the injury thus done to them they are entitled to recover at once their reasonable damages." The case at bar is a much stronger illustration of what is a perma- nent nuisance or trespass for which damages, past, present, and pros- pective, may be recovered, than Powers v. Council Bluffs. In this 672 STODGHILL V. CHICAGO, BURLINGTON & QUINCY R. R. CO. [cHAP. VI. case the damages to the whole extent were at once apparent. The water was diverted from the natural channel as soon as the embank- ment was raised to a sufficient height to turn the current into the new channel. The injury to the land was then as susceptible of estimation as it ever afterwards could be, and without calculating any future contingencies. In the other case, when the water commenced to flow in the new channel the plaintiff's lots were not injured. It required time to wash away the banks and work backward before the injury commenced. It is not necessary to dwell upon this question. The rule established in Powers v. Council Bluffs, supra, is decisive of this case. See, also, Chicago & Alton R. R. Co. v. Maher, Supreme Court of Illinois, Chicago Legal News, July 5, 1879. Counsel for appellee contend that the railroad embankment is not permanent because it is liable to be washed out by freshets in the stream, and cannot stand without being repaired. There is no evidence in this record tending to show that the embankment is insufficient to accomplish the pur- pose for which it was erected; that is, to make a solid railroad track and divert the water into the new channel. One witness testified that it is from sixteen to eighteen feet high. We will not presume that the defendant was guilty of such a want of engineering skill as not to raise its embankments so that they ^dll not be affected by high water. It seems to us that a railroad embankment, of proper width and raised to tlie proper height, is about as permanent as anything that human hands can make. Before leaving this branch of the case, it is proper to say that the acts complained of were done within the limit of the defendant's right of way, and the injury, if any, to the plaintiff's land, was consequential. The defendant did not enter upon plaintiff's land to take a right of way for its railroad, and Christopher Stodghill did not bring his action to recover upon that ground. As we have a statute providing for proceedings to condemn the land necessary to be taken for right of way for railroad purposes, it may be that the mode of as- certaining the damages prescribed by the statute must be pursued. See Daniels v. C. & N. W. R. R. Co., 35 Iowa, 129. That question, however, is not in this case, and we only refer to it lest we may be misunderstood. Christopher Stodghill, in his petition in the former action, averred that the diversion of the stream from its natural course across said land perpetually deprived him of the use thereof, to his great damage in the prosecution of his business, and in the depreciation in the value of his said farm and pasture lands, and he claimed damages in the sum of $499. The court instructed the jury in that case that they were not to consider the question in regard to any permanent damage to the land, for the reason that the plaintiff had the right to institute other suits to recover damages sustained after the commencement of the action. But the plaintiff claimed damages generally, and by his pleadings SECT. I.] PARKER V. RUSSELL. 673 he and those holding under him must be bound. Indeed, we do not understand counsel for appellee to contend otherwise. The damages being entire and susceptible of immediate recovery, the plaintiff could not divide his claim and maintain successive actions. The erroneous instructions of the court to the jury did not affect the question. It was the duty of the plaintiff to have excepted and appealed. "An adjudication is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have had decided, as incident to or essentially connected with the subject-matter of litigation." Freeman on Judgments, § 249. And, see Dewey v. Peck, 33 Iowa, 242. Schmidt v. Zahensdorf, 30 Iowa, 498. The foregoing considerations dispose of the case, and it becomes unnecessary to examine or determine other questions discussed by counsel. Reversed. PARKER V. RUSSEL&. Supreme Judicial Court of IVIassachusetts, 1882. [Reported 133 Mass. 74.] Field, J. In an action for the breach of a contract to support the plaintiff during his life, if the contract is regarded as still subsisting, the damages are assessed up to the date of the writ, and not up to the time when the verdict is rendered. Fay v. Guynon, 131 Mass. 31. But if the breach has been such that the plaintiff has the right to treat the contract as absolutely and finally broken by the defendant, and he elects so to treat it, the damages are assessed as of a total breach of an entire contract. Amos v. Oakley, 131 Mass. 413. Schell v. Plumb, 55 N. Y. 592. Remelee v. Hall, 31 Vt. 582. Fales v. Hemenway, 64 Maine, 373. Sutherland v. Wyer, 67 Maine, 64. Lamoreaux v. Rolfe, 36 N. H. 33. Mullaly v. Austin, 97 Mass. 30. Howard v. Daly, 61 N. Y. 362. Such damages are not special or prospective damages, but are the damages naturally resulting from a total breach of the contract, and are suffered when the contract is broken, and are assessed as of that time. From the nature of the contract they include damages for not performing the contract in the future as well as in the past. The value of the\ contract to the plaintiff at the time it is broken may be some- what indefinite because the duration of the life of the plaintiff is un- certain, but uncertainty in the duration of a life has not, since the adoption of life tables, been regarded as a reason why full relief in damages should not be afforded for a failure to perform a contract which by its terms was to continue during life. When the defendant, for example, absolutely refuses to perform 674 PARKER V. RUSSELL. [cHAP. VI. such a contract after the time for entering upon the performance has begun, it would be a great hardship to compel the plaintiff to be ready at all times during his life to be supported by the defendant, if the de- fendant should at any time change his mind ; and to hold that he must resort to successive actions from time to time to obtain his damages piecemeal, or else leave them to be recovered as an entirety by his personal representatives after his death. Daniels v. Newton, 114 Mass. 530, decides that an absolute refusal to perform a contract before the performance is due by the terms of the contract is not a present breach of the contract for which any action can be maintained; but it does not decide that an absolute re- fusal to perform a contract after the time and under the conditions in which the plaintiff is entitled to require performance, is not a breach of the contract, even although the contract is by its terms to continue in the future. The cases cited by the defendant are not inconsistent with these views. In Pierce v. Woodward, 6 Pick. 206, the declaration was for a breach of a negative promise, namely, "not to set up the business of a grocer" within certain limits; and it was held that the damages could be assessed only to the date of the writ. The defendant might at any time, without the consent of the plaintiff, stop carr^nng on the busi- ness, when the plaintiff's damages would necessarily cease. Powers V. Ware, 4 Pick. 106, was an action of covenant broken, brought by the overseers of the poor, under the St. of 1793, c. 59, § 5, for the breach of a covenant to maintain an apprentice under an in- denture of apprenticeship. The court in the opinion speak of the com- mon-law rule in assessing damages only to the date of the writ. But the statute under which the action was brought prevented the over- seers from treating the contract as wholly at an end, because it gave the apprentice a right of action when the term is expired, " for damages for the causes aforesaid, other than such, if any, for which damages may have been recovered as aforesaid," that is, by the overseers. Hambleton v. Veere, 2 Saund. 169, was an action on the case for enticing away an apprentice; and Ward v. Rich, 1 Vent. 103, was an action for abducting a wife; and neither throws much hght on the rule of damages for breach of a contract. Horn V. Chandler, 1 Mod. 271, was covenant broken upon an m- denture of an infant apprentice, who under the custom of London had bound himself to serve the plaintiff for seven years; the declaration alleged a loss of service for the whole term, a part of which was unex- pired; on demurrer to the plea, the declaration was held good, but it was said " that the plaintiff may take damages for the departure onlj' , not the loss of service during the term; and then it will be well enough." But if this be law to-day in actions on indentures of apprenticeship, it must be remembered that they are peculiar contracts, in which the rights and obligations of the parties are often affected by statutory ^ SECT, II.] GOODHART V. PENNSYLVANIA RAILROAD CO. 675 regulations, and in some cases they cannot be avoided or treated as at an end at the will of the parties. In this case, the declaration alleges in effect a promise to support the plaintiff during his life, from and after receiving the conveyance of certain real estate, an acceptance of such conveyance, and a neglect and refusal to perform the agreement. These are sufficient allega- tions to enable the plaintiff to recover damages as for a total breach. The court instructed the jury that, "if the defendant for a period of about two years neglected to furnish aid or support to the plaintiff, without any fault of the plaintiff, the plaintiff might treat the contract as at an end, and recover damages for the breach of the contract as a whole." We cannot say that this instruction was erroneous as applied to the facts in evidence in the cause, which are not set out. The jury must have found that the plaintiff did treat the contract as finally broken by the defendant, and the propriety of this finding on the evidence is not before us. Judgment on the verdict for the larger sum. SECTION II. Assessment of Damage. GOODHART v. PENNSYLVANIA RAILROAD CO. Supreme Court of Pennsylvania, 1896. [RepoHed 177 Pa. I.] Tort for personal injuries. Error was assigned on the following instruction. "3. If the jury find for the plaintiff he is entitled to re- cover such an amount as will compensate him for his pain and suf- fering. . . ." ^ Williams, J. . . . Pain and suffering are not capable of being exactly measured by an equivalent in money, and we have repeatedly said that they have no market price. The question in any given case is not what it would cost to hire some one to undergo the measure of pain alleged to have been suffered by the plaintiff, but what under all the circumstances should be allowed the plaintiff in addition to the other items of damage to which he is entitled, in consideration of suffer- ing necessarily endured: Baker v. Pennsylvania Company, 142 Pa. 503. This should not be estimated by a sentimental or fanciful stand- ard, but in a reasonable manner, as it is wholly additional to the pecu- niary compensation afforded by the first and third items that enter into the amount of the verdict in such cases. By way of illustration, 1 This short statement is substituted for that of the Reporter. — Ed. 676 SULLIVAN V. OLD COLONY STREET RAILWAY CO. [CHAP. VI. let us assume that a plaintiff has been wholly disabled from labor for a period of twenty days in consequence of an injury resulting from the negligence of another. This lost time is capable of exact compensation. It will require so much money as the injured man might have reason- ably earned in the same time by the pursuit of his ordinary calling. But let us further assume that these days of enforced idleness have been days of severe bodily suffering. The question then presented for the consideration of the jury would be, what is it reasonable to add to the value of the lost time in view of the fact that the days were filled with pain instead of being devoted to labor? Some allowance has been held to be proper; but in answer to the question "how much?" the only reply yet made is that it should be reasonable in amount. Pain cannot be measured in money. It is a circumstance however that may be taken into the account in fixing the allowance that should be made to an injured party by way of damages. An instruction that leaves the jury to regard it as an independent item of damages to be compensated by a sum of money that may be regarded as a pecuniary equivalent is not only inexact, but it is erroneous. The word "com- pensation," in the phrase, "compensation for pain and suffering," is not to be understood as meaning price, or value, but as describing an allowance looking towards recompense for, or made because of,- the suffering consequent upon the injury. In computing the damages sustained by an injured person therefore, the calculation may include not only the loss of time, and loss of earning power, but, in a proper case, an allowance because of suffering. SULLIVAN V. OLD COLONY STREET RAILWAY CO. Supreme Judicial Court of Massachusetts, 1908. [Reported 197 Mass. 512.] Tort by a married woman for personal injuries sustained on the evening of April 17, 1905, when the plaintiff was a passenger on a car of the defendant, from the car leaving the track and coming in collision with a post upon the edge of a sidewalk of High Street in Dedham. Writ dated May 3, 1905. At the trial in the Superior Court before Crosby, J., the defendant admitted its liability, and the evidence related solely to the question of damages. The plaintift''s attending physician testified that the physical ex- amination on the day following the accident showed, so far as he could recall, but a single bruise, which was over her right lower ribs and was about the size of a silver dollar; and that she was at the time of the trial and had been since the accident suffering from no organic trouble, but / . SECT, n.] SULLIVAN V. OLD COLONY STREET EAILWAY CO. 677 from a functional disturbance of the nervous system, commonly known as hysteria, and that it came on principally as a result of the excite- ment and fright of the accident, which would be an adequate cause of her condition, though the blows and "all those things" came in as contributing causes. It further appeared that about November 1, 1905, she became pregnant, and that on July 5, 1906, she gave birth to a child which lived just short of forty-eight hours, and then had three or four couAulsions and died. . . . RuGG, J. . . . 'Although careful instructions were given to exclude the death of the child as an element of damage, the jury were per- mitted to take into accoimt the mental suffering of the mother on this acd'ount. She was thus permitted to reco^Tr money compensation for the sorrow and anguish endured as a result of the contemplation of the death of her child conceived nearly seven months and born four- teen months after the injury. This is extending the rule of damages beyond any limits heretofore recognized. It is an expansion which finds no support in any principle of law. Mental suffering connected ■with and growing out of physical injury is a legitimate element to be considered in determining damages against a person wTongfully caus- ing an injury. Such suffering is to a greater or less extent inseparably connected with physical harm, and flows from it as a natural result. Canning r. Williamsto\^Ti, 1 Cush. 451. The rule of damages is a prac- tical instrumentality for the administration of justice. The principle on which it is founded is compensation. Its object is to afford tlie equivalent in money for the actual loss caused by the wrong of an- other. Recurrence to this fundamental conception tests the soundness of claims for the inclusion of new elements of damage. The landowner, whose home, rendered dear by ties of ancestry and personal attach- ment, is seized under the power of eminent domain, has a right to re- ceive no larger sum, on account of tlje mental distress he endures in leaving it, than a mere stranger, holding it purely for speculative pur- poses. The parent, who sues for the loss of services of his minor child, cannot recover for his own sympathetic sorrow in witnessing the suffer- ings, which cause his loss of service. In an action for deprivation of consortium, the anguish of mind of the husband, in observing the bodily pain of a sensitive wife, forms no element in the damages he may recover. These considerations apply peculiarly to a case like the present. Wealth lirings no consolation to those who mourn. The grief occasioned by the death of loved ones touches chords in the human soul which lie outside the compass of pecuniary relief. The solace, which stills the voice of lamentation, comes from sources which cannot be found tlirough the medium of money. The mental suffer- ing, for which damages can be recovered, therefore, is limited to that which results to the person injured as the necessary or natural conse- quence of the physical injury. But sentiments of grief, sorrow and mourning, which are aroused by extraneous causes, thoughts or re- 678 BALTIMORE & POTOMAC R. R, T. BAPTIST CHURCH. [CHAP. YI. flections, are excluded. The contemplation of the suffering and death of a child, begotten long after the' event complained of, is too remote from the original physical injury to the parent and too intangible and ethereal to be connected with the original wrong of the defendant as a result to be reasonably apprehended from such a cause. The law can- not enter the realm of pure sentiment in this class of case, and award pecuniary compensation for those injured feelings which spring from sympathy and the severance of ties of love and affection. It follows that there can be no recovery for the mental suffering which ensues from the contemplation of the pain, deformity, imperfections or char- acteristics of any other person or thing. See McDermott v. Severe, 202 U. S. 600. The extent to which recovery may be had for mental suffering has been the subject of somewhat conflicting decisions in various jurisdic- tions. But so far as we have been able to discover, there is unanimity of decision that, for mental suffering of a class like that under discus- sion, (except by express provision of statute, see Kelley v. Ohio River Hailroad, 58 W. Va. 216,) there can be no recovery. Maynard v. Oregon Railroad, 46 Ore. 15. Bovee v. Danville, 53 Vt. 183. Western Union Telegraph Co. v. Cooper, 71 Texas, 507. Texas Mexican Rail- way V. Douglass, 69 Texas, 694. Atchison, Topeka & Santa Fe Rail- road V. Chance, 57 Kans. 40. Butler v. Manhattan Railway, 143 N. Y. 417. Lennox- v. Interurban Street Railway, 104 App. Div. (N. Y.) 110. Exceptions sustained. BALTIMORE & POTOMAC RAILROAD COIVIPANY v. FIFTH BAPTIST CHURCH. Supreme Court of the United States, 1883. [Reported 108 U. S. 317.] Action in the nature of an action on the case to recover damages for the discomfort occasioned by the establishment' of a building for housing the locomotive engines of a railroad company contiguous to a building used for Sunday Schools and public worship by a religious society. ^ Field, J. . . . The instruction of the court as to the estimate of damages was correct. Mere depreciation of the property was not the only element for consideration. That might, indeed, l)e entirely dis- regarded. The plaintiff was entitled to recover because of the incon- venience and discomfort caused to the congregation assembled, thus necessarily tending to destroy the use of the building for the purposes for which it was erected and dedicated. The property might not be depreciated in its salable or market value, if the building had been SECT. II.] GKAND TOWER COMPANY V. PHILLIPS. 679 entirely closed for those purposes by the noise, smoke, and odors of the defendant's shops. It might then, perhaps, have brought in the market as great a price to be used for some other purpose. But, as the court below very properly said to the jury, the congregation had the same right to the comfortable enjoyment of its house for church purposes that a private gentleman has to the comfortable enjoyment of his own house, and it is the discomfort and annoyance in its use for those purposes which is the primary consideration in allowing damages. As "wath a blow on the face, there may be no arithmetical rule for the estimate of damages. There is, however, an injury, the extent of which the jury may measure. Judgment affirmed. GRAND TOWER COMPANY' v. PHILLIPS. Supreme Court of the United States. 1875. [Reported 23 Wall. All.] Phillips & St. John, partners, sued the Grand Tower Company — a mining, manufacturing and transportation corporation of Illinois — to recover damages for breach of contract. . . . The declaration alleged that the company, without any of the grounds of excuse stated in the agreement, failed to deliver the monthly quota of coal due in October, 1870, although the plaintiffs had barges ready to receive it; and that the plaintiffs thereupon elected to take said quota for said month, amounting to 15,000 tons, in the next suc- ceeding month, and gave notice to the defendant accordingly; but that the defendant also, without any excuse, failed to deliver the said quota in November, 1870, or the quota due for the said month of November, or any part thereof, amounting in all to 30,000 tons which they thus failed to deliver, and that the defendant had never delivered the same. Damages were assigned for loss of profits (the price of coal below Cairo that autumn being, as alleged, .S9 per ton), and for the expense of keeping their barges and towboats ready to receive coal at Grand Tower. . . . The next inquiry, therefore, was as to the rule by which those dam- ages were to be ascertained. On this point the plaintiffs offered evi- dence to show the prices of coal during November and December, 1870, at all points on the Mississippi River, helow Cairo even to New Orleans. The defendants objected to this, insisting that the price at Grand Tower was the measure of damages if the twenty-five cents per ton were departed from. The plaintiffs argued that this was a measure impossible to be ap- plied, the Grand Tower Con^pany having a monopoly of the market at Grand Tower, and there being no mines there but the company's 680 GRAM) TOWER COMPANY V. PHILLIPS. [CHAP. VI. own, the company thus making the only market there then was, and refusing to sell. The court received the evidence offered. . . . The jury found damages to the amount of $200,000 (nearly S7 per ton for the alleged deficit of 30,000 tons), and judgment having been given accordingly the defendant brought the case here. Bradley, J. . . . In regard to the measure of damages, the plain- tiffs were allowed to show the prices of coal during November and De- cember, 1870, at all points on the Mississippi below Cairo even to New Orleans. And the court charged the jury against the exceptions of the defendant, that the true measure of damages was the cash value during those months of the kind of coal mentioned in the contract, at Cairo, or points below it on the Mississippi River, after deducting the contract price of the coal and the cost and expense of transporting it thither, and making due allowance for the risk and hazard of such transporta- tion. Now although it is probable that the plaintiffs could have got the prices which the evidence showed were obtained for coal at and below Cairo, had their coal been furnished according to the agreement, yet the rule of law does not allow so wide a range of inquiry, but re- gards the price at the place of delivery as the normal standard by which to estimate the damage for non-delivery. It is alleged by the plaintiffs that this rule would have been a futile one in their case, because no market for the purchase of coal existed at Grand Tower, except that of the defendant itself, which, by the very hypothesis of the action, re- fused to deliver coal to the plaintiffs, and which had the whole subject "^in its own control. This is certainly a very forcible answer to the prop- osition to make the price of coal at Grand Tower the only criterion. It is apparent that the plaintiff's would be obliged to resort to some other source of supply in order to obtain the coal which the defendant ought to have furnished them. And it would not be fau", under the circumstances of the case, to confine them to the prices at which the defendant chose to sell the coal to other persons. The true rule would seem to be, to allow the plaintiffs to show the price they would have had to pay for coal in the quantities which they were entitled to receive it under the contract, at the nearest available market where it could have been obtained. The difference between such price and the price stipulated for by their contract, with the addition of the increased expense of transportation and hauling (if any), would be the true meas- ure of damages. To this is properly to be added the claim (if any) for keeping boats and barges ready at Grand Tower for the receipt of coal. But the prices of coal at New Orleans, at Natchez, and other places of distril)ution and sale, although they might aft'ord a basis for esti- mating the profits which the plaintiff's might have made had the coal stipulated for been delivered to them, cannot be adopted as a guide to the actual damage sustained so long as any more direct method is within reach. . . . Judgment reversed and a venire de novo awarded. SECT. II.] KOUNTZ V. KIRKPATRICK. 681 KOUNTZ V. KIRKPATRICK. Supreme Court of Pennsylvania, 1872. [Reported 72 Pa. 376.] Agnew, J. On the 7th of June 1S69, Koiintz sold to Kirkpatrick & Lyons, two thousand barrels of crude petroleum, to be delivered at his option, at any time from the date, until the 31st of December 1869, for cash on delivery, at thirteen and a half cents a gallon. On the 24th of June 1869, Kirkpatrick and Lyons assigned this contract to Fisher & Brothers. Kountz failed to deliver the oil. He defends on the ground that Kirkpatrick & Lyons, and others holding like contracts for de- livery of oil, entered into a combination to raise the price, by buying up large quantities of oil, and holding it till the expiration of the year 1869, and thus to compel the sellers of oil on option contracts, to pay a heavy difference for non-delivery. Fisher & Brothers, the assignees of Kountz 's contract, were not in the combination, and the principal questions are whether they are affected by the acts of Kirkpatrick & Lyons, subsequent to the assignment; whether notice of the assign- ment to Kountz was necessary to protect fhem, and what is the true measure of damages. The court below held that Fisher & Brothers, as assignees of the contract, were not affected by the acts of Kirk- patrick & Lyons, as members of the combination in the following October and subsequently, and that notice in this case w^as not essen- tial to the protection of Kountz. The common-law rule as to the assignability of choses in action no longer prevails, but in equity the assignee is looked upon as the true owner of the chose. He may set off the demand as his own : ^Morgan v. Bank of North America, 8 S. & R. 73; Ramsey's Appeal, 2 Watts 228. The assignee takes the chose subject to the existing equities between the original parties before assignment, and also to payment and other defences to the instrument itself, after the assignment and before notice of it; but he cannot be affected by collateral transactions, secret trusts or acts unconnected with the subject of the contract: Davis v. Barr 9 S. & R. 137; Beckley v. Eckert, 3 Barr 292; Mott v. Clark, 9 Id. 399 Taylor r. Gitt, 10 Id. 428; Northampton Bank v. Balliet, 8 W. & S. 318 Corsen v. Craig, 1 Wash. C. C. R. 424; 1 Parsons on Cont. 193, 196 2StoryonCont., § 396, n. The act of Kirkpatrick & Lyons, complained of as members of an unlawful combination to raise the price of oil, was long subsequent to their assignment of Kountz's contract, and was a mere tort. The con- tract was affected only by its results as an independent act. It does not seem just, therefore, to visit this effect upon Fisher & Brothers, the antecedent assignees. The act is wholly collateral to the ownership 682 ' KOUNTZ V. KIRKPATRICK. [CH,\P. VI. of the chose itself, and there is nothing to Hnk it to the chose, so as to bind the assignors and assignees together. After the assignment, there being no guaranty, the assignors had no interest in the "performance of this particular contract, and no motive, therefore, arising out of it to raise the price on Kountz. The acts of Kirkpatrick & Lyons seem, therefore, to have no greater or other bearing on this contract than the acts of any other members of the combination, who were strangers to the contract. In regard to notice of the assignment to Kountz, it is argued, that having had no notice of it, if he knew of the conspiracy to raise the price of oil, and thus to affect his contract, and that Kirkpatrick & Lyons were parties to it, he might have relied on that fact as a defence, and refused to deliver the oil, and claimed on the trial a verdict for merely nominal damages for his breach of his contract. Possibly in such a special case, want of notice might have constituted an equity, but the answer to this case is, that no such point was made in the court below, and there does not seem to be any evidence that Kountz knew of the conspiracy, and Kirkpatrick & Lyons's privity, and relying on these facts, desisted from purchasing oil to fulfil his contract with them. As the case stood before the court below, we discover no error in the answers of the learned judge on this part of it. The next question is upon the proper measure of damages. In the sale of chattels, the general rule is, that the measure is the difference between the contract price and the market value of the article at the time and place of delivery under the contract. It is unnecessary to cite authority for this well established rule, but as this case raises a novel and extraordinary question between the true market value of the article, and a stimulated market price, created by artificial and fraudulent practices, it is necessary to fix the true meaning of the rule itself, before we can approach the real question. Ordinarily, when an article of sale is in the market, and has a market value, there is no dif- ference between its value and the market price, and the law adopts the latter as the proper evidence of the value. This is not, however, be- cause value and price are really convertible terms, but only because they are ordinarily so in a fair market. The primary meaning of value is worth, and this worth is made up of the useful or estimable qualities of the thing: See Webster's and Worcester's Dictionaries. Price, on the other hand, is the sum in money or other equivalent set upon an article by a seller, which he demands for it: Id. Ibid. Value and price are, therefore, not synonymes, or the necessary equivalents of each other, though commonly, market value and market price are legal equivalents. When we examine the authorities, we find also that the most accurate writers use the phrase market value, not market price. Mr. Sedgwick, in his standard work on the measure of damages, 4th ed. p. 2()0, says: " Where contracts for the value of chattels are broken by the vendor's failing to deliver property according to the terms of SECT. II.] KOUNTZ V. KIRKPATRICK. 683 the bargain, it seems to be well settled, as a general rule, both in Eng- land and the United States, that the measure of damages is the differ- ence between the contract price and the market value of the article at the time it should be delivered upon the ground ; that this is the plain- tiff's real loss, and that with this sum, he can go into the market and supply himself with the same article from another vendor." Judge Rogers uses the same term in Smethurst v. Woolston, 5 W. & S. 109: "The value of the article at or about the time it is to be delivered, is the measure of damages in a suit by the vendee against the vendor for a breach of the contract." So said C. J. Tilghman, in Girard v. Tag- gart, 5 S. & R. 32. Judge Sergeant, also, in O'Conner v. Forster, 10 Watts 422, and in Mott v. Danforth, 6 Id. 308. But as even accurate writers do not always use words in a precise sense, it would be unsatis- factory to rely on the common use of a word only, in making a nice dis- tinction between terms. It is therefore proper to inquire into the true legal idea of damages in order to determine the proper definition of the term value. Except in those cases where oppression, fraud, malice or negligence enter into the question, "the declared object (says Mr. Sedgwick, in his work on Damages) is to give compensation to the party injured for the actual loss sustained," 4th ed., pp. 28, 29; also, pp. 36, 37. Among the many authorities he gives, he quotes the language of C. J. Shippen, in Bussy t'. Donaldson, 4 Dallas 206. "As to the assessment of damages (said he), it is a rational and legal principle, that the compensation should be equivalent to the injury." "The rule," said C. J. Gibson, "is to give actual compensation, by gradu- ating the amount of the damages exactly to the extent of the loss." "The measure is the actual, not the speculative loss:" Forsyth v. Palmer, 2 Harris 97. Thus, compensation being the true purpose of the law, it is obvious that the means employed, in other words, the evidence to ascertain compensation, must be such as truly reaches this end. It is equally obvious, when we consider its true nature, that as evi- dence, the market price of an article is only a means of arriving at compensation ; it is not itself the value of the article, but is the evidence of value. The law adopts it as a natural inference of fact, })ut not as a conclusive legal presumption. It stands as a criterion of value, be- cause it is a common test of the ability to purchase the thing. But to assert that the price asked in the market for an article is the true and only test of value, is to abandon the proper object of damages, viz., compensation, in all those cases where the market evidently does not afford the true measure of value. This thought is well expressed by Lewis, C. J., in Bank of Montgomery v. Reese, 2 Casey 146. " The para- mount rule in assessing damages (he says), is that every person un- justly deprived of his rights, should at least be fully compensated for the injury he sustained. Where articles have a determinate value and an unlimited production, the general rule is to give their value at the 684 KOUNTTZ V. KIRKPATRICK. [CIL\.P, VI. time the owTier was deprived of them, with interest to the time of \erdict. This rule has been adopted because of its convenience, and because it in general answers the object of the law, which is to com- pensate for the injury. In relation to such articles, the supply usually keeps pace with the demand, and the fluctuations in the value are so inconsiderable as to justify the courts in disregarding them for the sake of convenience and uniformity. In these cases, the reason why the value at the time of conversion, A\ath interest, generally reaches the justice of the case, is that when the owner is deprived of the articles, he may purchase others at that price. But it is manifest that this would not remunerate him where the article could not be obtained elsewhere, or where from restrictions on its production, or other causes, its price is necessarily subject to considerable fluctuation." This shows that the market price is not an invariable standard, and that the converse of the case then before Judge IvCaais is equally true — that is to say — when the market price is unnaturally inflated by un- lawful and fraudulent practices, it cannot be the true means of ascer- taining what is just compensation. It is as unjust to the seller to give the purchaser more than just compensation, as it is to the purchaser to give him less. Right upon this point, we have the language of this court in the case of a refusal by a purchaser to accept: Andrews v." Hoover, 8 Watts 240. It is said : " The jury is bound by a measure of damages where there is one, but not always by a particular means for its ascertainment. Now the measure in a case like the present, is the difference between the price contracted to be paid and the value of the thing when it ought to have been accepted; and though a resale is a convenient and often satisfactory means, it does not follow that it is, nor was it said in Girard v. Taggert, to be the only one. On the contrary, the propriety of the direction there, that the jury were not bound by it, if they could find another more in accordance with the justice of the case, seems to have l)een admitted; the very thing com- plained of here." Judge Strong took the same view in Trout v. Ken- nedy, 11 Wright 393. That was the case of a trespasser, and the jury had been told that the plaintiff was entitled to the just and full value of the property, and if at the time of the trespass the market was de- pressed, too much importance was not to be given to that fact. "If (says Judge Strong) at any particular time, there be no market de- mand for an article, it is not of course on that account of no value. What a thing a'stIII bring in the market at a given time, is perhaps the measure of its value then; but it is not the only one.'" These cases plainly teach that value and market price are not always con\ertible terms; and certainly there can be no difference in justice or law, in an unnatural depression and an unnatural exaltation in the market price — neither is the true and only measure of value. These general principles in the doctrine of damages and authorities, prove that an inflated speculative market price, not the result of natu- SECT. II.] KOUNTZ V. KIRKPATRICK. 685 ral causes, but of artificial means to stimulate prices by unlawful com- binations for the purposes of gain, cannot be a legitimate means of estimating just compensation. It gives to the purchaser more than he ought to have, and compels the seller to pay more than he ought to give, and it is therefore not a just criterion. There is a case in our ov.nx state, bearing strongly on this point: Blydenburgh ct al. v. Welsh et al., Baldwin's Rep. 331. Judge Baldwin had charged the jury in these words : " If you are satisfied from the evidence, that there was on that day a fixed price in the market, you must be governed by it; if the evidence is doubtful as to the price, and \\'itnesses vary in their state- ments, you must adopt that which you think best accords with the proof in the case." In granting a new trial, Judge Hopkinson said: " It is the price — the market price — of the article that is to furnish the measure of damages. Now what is the price of a thing, particularly the market price? We consider it to be the value, the rate at which the thing is sold. To make a market, there must be buying and selling, purchase and sale. If the owner of an article holds it at a price which nobody wall give for it, can that be said to be its market value? Men sometimes put fantastical prices upon their property. For reasons personal and peculiar, they may rate it much above what any one would give for it. Is that the value? Further, the holders of an article, flour, for instance, under a false rumor, which, if true, would augment its value, may suspend their sales, or put a price upon it, not according to its value in the actual state of the market, but according to what in their opinion will be its market price or value, provided the rumor shall prove to be true. In such a case, it is clear, that the asking price is not the worth of the thing on the given day, but what it is supposed it will be worth at a fviture day, if the contingency shall happen which is to give it this additional value. To take such a price as the rule of damages, is to make the defendant pay what in truth never was the value of the article, and to give to the plaintiff a profit by a breach of the contract, which he never would have made by its performance." The case of suspended sales upon a rumor tending to enhance the price, put by Judge Hopkinson, bears no comparison to the case al- leged here, where a combination is intentionally formed to buy up oil, hold it till the year is out, and thus force the market price up purposely to affect existing contracts, and compel the sellers to pay heavy dam- ages for non-fulfilment of their l)argains. In the same case. Judge Hopkinson further said: "We did not intend that they (the jury) should go out of the limits of the market price, nor to take as that price whatever the holders of the coffee might choose to ask for it; substituting a fictitious, unreal value, which nobody would give, for that at w^hich the article might be bought or sold." " In determining," says an eminent UTiter on contracts, "what is the market value of property at any particular time, the jury may sometimes take a wide 686 KOUNTZ V. KIRKPATRICK. [CHAP. VI. ran^^e; for this is not always ascertainable by precise facts, but must sometimes rest on opinion ; and it would seem that neither party ought to gain or lose by a mere fancy price, or an inflated and accidental value, suddenly put in force by some speculative movement, and as suddenly passing away. The question of damages by a market value is peculiarly one for a jury:" Parsons on Contracts, vol. 2, p. 482, ed. 1857. In Smith v. Griffith, 3 Hill 337-8, C. J. Nelson said: "I admit that a mere speculating price of the article, got up by the con- tri^'ance of a few interested dealers, is not the true test. The law, in regulating the measure of damages, contemplates a range of the entire market, and the average of prices, as thus found, running through a reasonable period of time. Neither a sudden and transient inflation, nor a depression of prices, should control the question. These are often accidental, promoted by interested and illegitimate combina- tions, for temporary, special and selfish objects, independent of the objects of lawful commerce; a forced and violent perversion of the laws of trade, not within the contemplation of the regular dealer, and not deserving to be regarded as a proper basis upon which to deter- mine the value, when the fact becomes material in the administration of justice." I may close these sajangs of eminent jurists with the language of Chief Justice Gibson, upon stock-jobbing contracts; Wil- son T. Davis, 5 W. & S. 523: "To have stipulated," says he, "for a right to recruit on separate account, would have given to the agree- ment an appearance of trick, like those of stock-jobbing contracts, to deliver a given number of shares at a certain day, in which the seller's performance has been forestalled by what is called cornering; in other words, buying up all the floating shares in the market. These contracts, like other stock-jobbing transactions, in which parties deal upon honor, are seldom subjected to the test of judicial experiment, but they would necessarily be declared fraudulent." Without adding more, I think it is conclusively sho^Ti that what is called the market price, or the quotations of the articles for a given day, is not always the only evidence of actual value, but that the true value may be drawn from other sources, when it is showTi that the price for the particular day had been unnaturally inflated. It remains only to ascertain whether the defendant ga^'e such evidence as to re- quire the court to submit to the jury to ascertain and determine the fair market value of crude oil per gallon, on the 31st of December 1869, as demanded by the defendant in his fifteenth point. There was evi- dence from which the jury might have adduced the following facts, viz.: That in the month of October 1869, a number of persons of large capital and among them Kirkpatrick & Lyons, combined together to purchase crude oil, and hold it until the close of the year 1869; that these persons were the holders, as purchasers, of a large number of sellers' option contracts, similar to the one in suit; that they bought oil largely, and determined to hold it from the market until the year 1870 SECT. II.] KOUNTZ V. KIRKPATRICK. 687 before selling; that oil, in consequence of this combination, ran up in price, in the face of an increased supply, until the 31st day of De- cember 1869, reaching the price of seventeen to eighteen cents per gallon, and then suddenly dropped as soon as the year closed. Major Frew, one of the number, says: It was our purpose to take the oil, pay for it, and keep it until January 1st 1870, otherwise we would have been heading the market on ourselves. Mr. Long says that on the 3d of January 1870 he sold oil to Fisher & Brother (the plaintiffs) at thirteen cents a gallon, and could find no other purchaser at that price. Several witnesses, dealers in oil, testify that they knew of no natural cause to create such a rise in price, or to make the difference in price from December to January. It was testified, on the contrary, that the winter production of oil was greater in December 1869 than in former years by several thousand barrels per day, a fact tending to reduce the price, when not sustained by other means. Mr. Benn says he knew no cause for the sudden fall in price on the 1st January 1870, except that the so-called combination ceased to buy at the last of December 1869. It was, therefore, a fair question for the jury to determine whether the price which was demanded for oil on the last day of December 1869 was not a fictitious, unnatural, inflated and temporary price, the result of a combination to "bull the market," as it is termed, and to compel sellers to pay a false and swollen price in order to fulfil their contracts. If so, then .such price was not a fair test of the value of the oil, and the jury would be at liberty to determine, from the prices be- fore and after the day, and from other sources of information, the actual market value of the oil on the 31st of December 1869. Any other cause would be unjust and injurious to fair dealers, and would enable gamblers in the article to avail themselves of their own wrong, and to wrest from honest dealers the fruits of their business. It cannot be possible that a "corner," such as took place a few weeks since in the market for the stock of a western railroad company, where shares, worth in the ordinary market about sixty dollars each, were by the secret operations of two or three large capitalists, forced up in a few days to a price over two hundred dollars a share, can be a lawful measure of damages. Men are not to be stripped of their estates by such cruel and wrongful practices; and courts of justice cannot so wholly ignore justice as to assume such a false standard of compensa- tion. Our views upon the effect of the affidavit of defence, on which the learned judge in a great measure ruled the question of damages, will be expressed in the case of Kountz v. The (.'itizens' Oil Refining Co., in an opinion to be read immediately, Judximcnt reversed, and a venire facias de novo awarded. Sharswood and Williams, JJ., dissented on the question of the n^easure of damages. ^ 688 REDMOND T. MIERICAN MANUFACTURING CO. [ciIAP. VI. REDMOND V. AMERICAN MANUFACTURING COMPANY. Court of Appeals, New York, 1890. [Reported 121 N. Y. 415.] O'Brien, J. The plaintiff was the inventor of a machine, upon whicli he procured a patent, for the purpose of inserting^ and fasten- ing rivets in the joints of umbrella ribs and stretchers where they are fastened together. The defendant, a corporation organized for manufacturing purposes, was engaged in making and selling the ribs and other parts of umbrellas. The plaintiff and defendant entered into an agreement to the eft'ect that the plaintiff should manufacture and set lip in the defendant's factory fourteen of these machines, and should for a certain period, personally or by skilled agents, superin- tend the operation of the same and instruct defendant's employes in the operation thereof. The defendant during this period was to fur- nish sufficient work for the operation of the machines to their full capacity, and to pay the plaintiff's agents for their services in super- intending the operation of the machines and instructing its employes in their use out of the saving that might be effected by the machines in the cost of doing the work which previously had been done by hand at a certain specified price per dozen sets. At the expiration of this period the defendant was to have the option of returning the ma- chines to the plaintiff' or of purchasing the same and paying therefor a certain agreed price, which should be equal to the sum found to be the sa\dng on 300,000 dozen sets by said machines working to their full capacity, compared with the cost of doing the same work by hand at the prices paid therefor and specified in the agreement. The plaintiff manufactured and put the machines in the defendant's fac- tory and furnished persons to superintend the operation thereof, but he claims that the defendant failed to furnish sufficient work during the period of trial to enable said machines to be operated to their full capacity, and that, notwithstanding this failure, the machines did actually effect a saving of fully one-half in the previous cost of the work. At the conclusion of the trial period the defendant did not elect to purchase the machines. The title to the same never passed from the plaintiff, and on October 27, 1884, he demanded of the de- fendant the return to him of the property. This demand gave rise to negotiations between the parties, which, however, ended without any result, whereupon the plaintiff' brought this action to recover the possession of the fourteen machines, or their value in case a delivery to him could not be made, and the sum of $15,000 as damages for the detention thereof after demand. On the trial of the action in the Superior Court, the plaintiff re- SECT. II.] REDMOND V. AMERICAN MANUFACTURING CO. 689 covered, the jury assessing the value of the property at $2,100, and under the charge of the court the plaintiff was awarded $445, being the interest on the value of the machines from the time of the demand, as damages for the unlawful detention. The plaintiff, at the trial, offered to prove the value of the use of the machines from the time of the demand as his damages for their detention, but the evidence was excluded under the defendant's ob- jection, the plaintiff excepting. The plaintiff appealed from so much of the judgment in his favor as limited the damages for detention to the interest on the value of the property, and the General Term has affirmed the ruling at the trial on this question of damages. The property in question was evidently manufactured and de- livered to the defendant for the purpose of sale. The precise sum to be paid was not specified in dollars and cents, but depended upon what the machines could accomplish in the way of saving for the de- fendant within a designated period of time under certain conditions, and in this way the price of the article was capal)le of being ascer- tained by a process of calculation pro\'ided for in the agreement under which it was delivered by the plaintiff. The record does not show that the machines had any marketable value, and it is to be inferred from the proofs at the trial that they had been recently invented and had not been yet brought into such general use as to furnish any re- liable or certain standard of value for their use by the defendant. The agreement under which they came into the defendant's posses- sion shows that their general utility and capacity had not been fully established, and that they were considered by both parties as some- what of an experiment. The property being without a market value the parties at the trial were obliged to submit the case to the jury upon evidence given by both sides as to their intrinsic value or the cost of production. There is no complaint on the part of the plaintiff that the property was less valuable at the trial on account of the manner in wliich it was used, or for any other reason than when it was delivered to the defendant. The WTong that the plaintiff has suffered consisted entirely in the neglect of the defendant to return the property to the plaintiff when he demanded it. The property was rightfully in defendant's possession until the parties, at the end of the trial period, failed to agree upon a price for it upon the basis of the agreement. The plaintiff' was entitled to have the value of the property, at the time of the trial, found and awarded to him in case the property itself could not be returned (N. Y. G. & I. Co. r. Flynn, 55 N. Y. 563), and the jury assessed the value as of that time. If the interest on this value during the time that the defendant retained the property after demand is, under the circumstances of this case, the legal compensation for the defendant's wrong in not returning the property on demand, the plaintiff' has ho reason for complaint. It is urged upon this appeal on the authority of Allen v. Fox (51 N. \. 690 REDMOND V. AMERICAN MANUFACTURING CO. [CHAP. VI. 562) that he was entitled to recover as damages for the unlawful de- tention of the property such sum as he could prove to be the value of the use of the property during the period that it was wrongfully de- tained. That was an action to recover the possession of a horse, and what is there called the usable value of the horse, was held to be a proper measure of damages for its detention. The learned judge, who gave the opinion in the case, admits that the interest on the value of the property, at the time of the trial, is generally the proper measure of damages for its A\Tongful detention when it consists of merchandise kept for sale, and all other articles of property, valuable only for sale or consumption. In actions to recover the possession of specific personal property, many cases, no doubt, may and do arise where the interest would not furnish to the owner of the property a just or suffi- cient indemnity for his loss; but such cases are special and exceptional, and it is scarcely possible to group them under any general rule or principle. There is a manifest difference between the case of the WTongful detention of a horse or other property which is in constant and daily use, and the usable value of wliich is well known and readily ascertained, and property of the character of that which was the subject of controversy in this case. Here the property was manufac- tured and delivered to the defendant for the purpose of sale, like any other article of merchandise. It is not claimed, and it is not at all likely that the plaintiff could have put the machines to any other use while the defendant detained them after the demand. When machinery, in operation, is taken from the owner of a factory, who requires it for immediate, constant and daily use, and detained by the \\Tong-doer, such an act would probably inflict upon the owner damages which could not be compensated by the interest on its value for the period of the wrongful detention. But, when, as in this case, the maker of a patented machine or article, desiring to introduce it into general use, delivers it with a view to a sale and afterward becomes entitled to have the same returned to him by reason of the failure of the party to whom it is delivered on trial to accept it, or comply with the terms and conditions upon which it was delivered, the interest on its price or value from the time of the wrongful detention to the trial furnishes a just indemnity for the WTong and the proper rule of damages in such cases. We think that the record in this case does not disclose any of those special features calling for a larger measure of damages than that generally applicable to cases for the conversion of personal property, namely, the interest on its faij value from the time of the conver- sion. (Brizsee v. Maybee, 21 W^end. 144; Rowley v. Gibbs. 14 Johns. 385.) The judgment is right, and should be affirmed. SECT. II.] NATIONAL BANK OF COMMERCE V. NEW BEDFORD. 691 NATIONAL BANK OF COIVIMERCE v. NEW BEDFORD. Supreme Judicial Court of Massachusetts, 1892. [Reported 155 Mass. 313.] Holmes, J. The petitioner appealed to the Superior Court, under the St. of 1890, c. 127, § 1, from the decision of the assessors of New Bedford, refusing to abate any part of a tax upon its shares at a valua- tion of $120 per share of the par value of $100. The Superior Court sent the case to a commissioner to report the facts, and afterwards heard the case on the rejDort without other evidence. It found as a fact, from the report, that for the purposes of taxation in this case the fair cash value of the shares, at which they are required to be assessed by the Pub. Sts. c. 13, § 8, was their market value as found by the commissioner, and ruled that upon the facts the assessors had no right to assess the stock upon the basis of the value as showTi by the capital stock, the surplus fund, and the undi\"ided profits, irrespective of the other evidence in the case, and that such assessment should be abated as to the excess above the fair cash value found to be the market value as first stated. This ruling was excepted to. Substantially the same point is presented another way by an exception to a refusal to rule that the assessors had a right to assess the stock upon the real worth of the property of the bank, all tilings considered. The difference between the parties arises from findings by the com- missioner, that, assuming that the bank was to continue its business, the fair market value of the shares on May 1, 1890, was $102 per share, but that, assuming that it was to close its business, convert its assets into cash, and divide the cash among the shareholders, the fair value of each shareholder's interest was $126 per share, from which $6 is to be deducted for real estate. The discrepancy is accounted for by a loss of confidence in the management, and the fact that for some years the bank had paid low dividends. The main question argued before us was whether the foregoing rul- ing and refusal were right. There is a strong argument that the re- spondent was not entitled to any ruling as to what the assessors had or had not a right to do, but that the only business of the Superior Court was to determine afresh, on the facts and within the limits of its appellate action, what a fair assessment would be, and what, if any, abatement is reasonable. Pub. Sts. c. 11, §§ 69, 71. If, however, we are called on to go further, in order to see that the Superior Court did not adopt a false standard, we must notice that the court did not rule that under no circumstances would the assessors have had a right to assess on the basis mentioned, but only that it was wrong upon the facts found. One of the facts found is that in this case the fair cash 692 NATIONAL BANK OF COMMERCE V. NEW BEDFORD. [CHAP. VI. ,.t,| value of the shares was their market value. Of course the fair cash value of stock may be its market value, so that, putting the respondent's case at the highest, the petitioner must prevail upon the merits, unless the court was not justified in its finding of fact by the commissioner's report. The thing of which the fair cash value is to be found is the stock or shares of the corporation. Value refers to exchange^ The cash value of an article is the amount of cash for which it will exchange in fact. That amount depends on the opinion of the public of possible buyers, or of that part of it which will pay the most. If in their opinion the stock is worth only $102 per share, — if that is all that the stock will sell for, — it is vain to show that the net value of the property of the corporation, that is to say, the opinion of the public about a chief component element of the value of the stock, if uncontrolled, logically leads to a different value for the stock. It has been recognized judicially that the value of the property and the value of the stock might differ, for reasons which have been found to exist in this case. Common- wealth V. Hamilton Manuf. Co. 12 Allen, 298, 302, 303. Common- wealth V. Cary Improvement Co. 98 Mass. 19, 22. Moreover, if there seems to be a difference in the value of the stock when arrived at in the two ways under consideration, generally speak- ing, the effect of the value of the property of a corporation upon the ^'alue of its stock will be estimated more accurately by the interested and trained judgment of the market than it can be by a court. As a rule, the fair cash value of shares having a market is best ascertained by finding the price at which they sell in the market. But in truth the commissioner's report discloses no difference in the value of the stock, according as it is got at one way or the other. The difference in the value found by him depends upon whether it is as- sumed that the corporation was to continue its business or was to be wound up. If it was to continue its })usiness, $102 was the fair market value for a share; that is to say, $102 was the full amount of cash that could be got or ought to be got for a share in that bank, its property and prospects being what they were. The bank actually was to con- tinue its business, therefore that was the actual fair cash value of its shares. What they would have been worth in a different state of facts, if the bank had come to a stop, does not matter. Actual values are ' based upon existing states of fact, not upon hypotheses; and the actual value of shares in a going concern depends not only upon its property, but also upon its prospects, since shares both represent property and prospects. ... " Judgment for the 'petitioner. SECT. II.] WHITWH.\M V. WESTMINSTER BRYMBO C. & C. CO. 693 WHITWHAM V. WESTMINSTER BRYMBO COAL & COKE CO. High Court of Justice, Chancery Division, 1896. [Reported [1896] 1 Ch. 894.] Motion to vary the report of one of the official referees, which raised the question as to the measure and method of assessing the damage done to the plaintiffs' land by a trespass committed by the defendants in depositing spoil thereon from their colliery. The facts, so far as material, were as follows: • The plaintiffs were the owners of 1a. 3r. 9p. of land situate in a long, narrow valley to the north of the defendants' colliery; in 1888 this was the only land on the north side, wathin a reasonable distance, which the defendants could have procured for tipping purposes. The defendants had used this land since March, 1888, for the deposit of spoil from their colliery, and in the course of their operations had cov- ered some 3r. 20p. with spoil. The defendants claimed the right to use the land for this purpose by virtue of an agreement; but at the trial of this action before Romer, J. in March, 1894, it was held that there was no such- agreement. By the judgment it was declared that the land in question belonged to the plaintiffs, and that the defendants had been guilty of committing a trespass upon the land by tipping or depositing thereon spoil, and an injunction was granted restraining them from further tipping. It was further ordered that the defendants should deliver possession of the land to the plaintiffs, and an inquiry was directed what, if any, sum of money was proper to be awarded to be paid by the defendants to the plaintiffs by way of damages for in- jury sustained by the plaintiff's since March, 1888, by reason of the defendants' trespass by tipping or depositing spoil or other materials upon the land. On August 3, 1895, the official referee made his report, in which, after finding the amount of damages to be £200, he proceeded as follows : — (2.) The defendants have by their trespasses since March 24, 1888, rendered land belonging to the plaintiffs, 1a. 3r. 9p. in extent, value- less for any but tipping purposes. (3.) In assessing the said sum of £200, I have taken as the measure of damage the diminished value of the plaintiffs' land, in extent 1a. 3r. 9p., caused by the defendants' said trespass since March, 1888. (4.) The plaintiffs contended before me, through their counsel, that the proper measure of damage was the reasonable value to the defendants on March 24, 1888, of the plaintiff's' land for tipping pur- poses, and claimed interest at 4 per cent on such value from the re- spective dates at whicli the tipping was done. 694 WHITWHAJVI V. WESTMINSTER Bm^IBO C. & C. CO. [CHAP. VI. (5.) If the proper measure of damage be that mentioned in para- graph 4, I find that the sum to be paid to the plaintiffs as damages is £963, and £141 5s. interest, making together the sum of £1104 5s. (6.) In either case, on whichever basis the damages are assessed, I am of opinion that the costs of the inquiry should be paid by the defendants. The wa}' in which the referee arrived at these results is sufficiently discussed in the judgment. The plaintiffs now moved to vary the report, claiming damages and interest in accordance with the alternative finding in paragraph 5 of the report. Chitty, J. The question is what is the measure of damages in the circumstances of this case. [After stating the result of the trial of the action before Romer, J., and the terms of the inquiry, which, he ob- served, left open the question of the measure of damages, his Lordship continued : — ] In answer to the inquiry the official referee has made a special re- port. He finds, first, that the sum proper to be paid by way of damage is the sum of £200; secondly, that the defendants have by their tres- passes rendered land belonging to the plaintiffs, 1a. 3r. 9p. in extent, valueless for any but tipping purposes; and, thirdly, that in assessing the £200 he had taken as the measure of damage the diminished value of the plaintiffs' land, in extent 1a. 3r. 9p., caused by the defendants' trespass. In arri^■ing at the £200 the referee appears to have taken the land at its agricultural value, striking a mean between the estimates of the valuers, and making an allowance in respect of a cottage affected. Here the referee has followed the rule ordinarily applied in actions for injury to land: see Mayne on Damages, 5th ed. p. 430. In Jones v. Gooday, where the defendant in widening a ditcli had cut into the plaintiff's land and carried away soil, it was decided that the plaintiff was entitled to be compensated for the loss he had actually sustained, and not for the expense of restoring the land to its original condition. The plaintiffs do not contend that the measure of damages is the ex- pense of restoring the land to its former state; but they contend that the proper measure is the reasonable value of the land for tipping purposes, being the purposes for which the defendants actually used the land. After referring to this contention with a claim for interest, the referee finds, that if the proper measure of damage be that so contended for, the sum to be paid is £963 and £141 5s. for interest, making together £1104 5s. The question, then, is whether the value of the land for tipping purposes ought to be taken into consideration in assessing the damage. The plaintiffs' land is situate in a long, narrow valley to the north of the defendants' colliery, which is a short distance off. There is no other land on the north of the colliery within a reasonable distance which the defendants could have procured for tipping purposes. The sum of £963 is arrived at by treating the tip- SECT. II.] WHITWHAM V. WESTMINSTER BRYIVIBO C. & C. CO. 695 ping value at £500 an acre. Of the total area of the land 3r. 20p. have been covered by the defendants with spoil ; the remaining portion, 3r. 29p., is still available for tipping purposes, but for no other purpose. There is no authority directly in point. The plaintiffs rely on the de- cisions in reference to mining operations as shewing the true principle. In Martin v. Porter, Parke B. directed the jury that the plaintiff was entitled to compensation for the defendants passing through his coal mine with coals gotten from his own mines, and ought to pay as for a way-leave. Under the leave given to move to reduce the damages, the point whether this direction was right might have been raised; but it was not raised on the motion made. The actual damage sustained by the plaintiff by reason of the wrongful user of the underground way would have been trifling; but the principle acted upon was, that the plaintiff was entitled to be compensated upon the footing of a grant of a wav-leave at a reasonable rent, which was shewn to be 2d. a ton in the neighbourhood. In Jegon v. Vivian the Master of the Rolls (Lord Romilly) and Lord Hatherley held that the plaintiffs were en- titled to an inquiry what ought to be paid by way of way-leave for the passage of coal through their mines. In that case the defendants were trespassers who had held on after a lease granted by a tenant for life under a power, which lease was avoided by the plaintiffs, the re- versioners. In regard to the coal which they had WTongfully gotten, the defendants were ordered to pay damages, not on the more severe principle, but on the principle of their being (to use a phrase employed in these cases) "innocent trespassers"; yet in regard to the way, they had to pay compensation on the footing of a way-leave. In Phillips V. Homfray the damages were directed to be assessed on the same principle; but there the appellants were treated as wilful or guilt}^ trespassers. Now the question is whether the principle of the way-leave cases applies to a case of tipping. They are founded on the principle that a wrongdoer shall not make a profit out of his own wrong, and that the value of the land for the purposes for which it was actually used by the wrongdoer ought to be taken into consideration. There is this distinction between the way-leave cases and the case before me, that the user of the way for the passage of coal is underground, and, in some instances, surreptitious; whereas in the case of tipping the user is on the surface and open; in the present case the fact appears to be, that the plaintiffs were aware that the tipping was going on. But I cannot see that this distinction makes any substantial difference. I think that the principle does apply, and that the plaintiffs are entitled to damages on the basis of what would be a reasonable sum to be paid for the use of their land by the defendants for tipping purposes. But applying this principle consistently to the facts, I think that the plaintiffs are not entitled to the whole of the £1104 5s. First, in regard to interest claimed, I think that all interest ought to be ex- 696 BEALE V. BOSTON. [CHAP. VI. eluded from the computation of damage. To give interest would be to treat the plaintiffs as having invested their damages at interest in the hands of the defendants. Secondly, on the principle which I adopt I think the plaintiffs are entitled to damages on the higher footing for so much only of the land as was actually used by the defendants for tipping. The plaintiffs at the trial obtained an injunction restraining the defendants from further tipping; the defendants cannot there- fore use the rest of the land for tipping. To make the defendants pay the whole of the £963 would be to make them pay for the fee-simple value of the land for tipping when they have used part only of tlje land for that purpose, and are prevented by the injunction from so using the remainder. There is still an unexhausted tipping value in part of the land. It was admitted by counsel, as I understood, that of the total area of 1a. 3r. 9p. only 3r. 20p. were covered by spoil, and that the remainder, namely, 3r. 29p., or rather more than half, was still available for tipping, although valueless, as the referee finds, for any other purpose. It would be vuijust to make the defendants pay for the 3r. 29p. on the principle of a tipping leave which they have not directly or indirectly enjoyed. In respect of this part of the land the defendants ought to pay on the footing of the diminished value of the land to the plaintiffs. The plaintiffs' counsel said that on the evidence it would be impracticable for the plaintiffs to sell or let the 3r. 29p. for tipping purposes to any persons other than the defendants; and that the de- fendants, having found land to the south of their colliery, no longer required, and would not take, this portion of the land for tipping. Assuming this statement to be correct, it is immaterial. The plaintiffs cannot recover any greater sum for damages than is given by the just application of the principle which they invoke. I take it that the parties will be able readily to apportion the damages in accordance with this judgment. If they cannot agree, the matter must go back to the referee with a proper direction. [The sum of £550 was subsequently arranged by counsel in court as the amount of the damages to be awarded in accordance with the judg- ment, and for this sum interest at 4 per cent from the date of this judgment was given. The defendants were also ordered to pay the costs.] ■ BEALE V. BOSTON. Supreme Judicial Court of Massachusetts, 1896. [Reported 166 Mass. 53.] Allen, J. The petitioner had bought a tract of ten acres of land, and laid it out into house lots and streets, one of the streets being called Tuttle Street, which he had built and graded. He had sold various SECT. II.] _ BEALE V. BOSTON. 697 lots, with rights of way and drainage, but with no ouTiership of the fee in Tuttle Street, and he owned other lots abutting thereon, as well as some other land near by, abutting on another street running from Tuttle Street at right angles. At the trial, the petitioner, in seeking to prove his damages caused by the taking of Tuttle Street, offered evidence tending to show its value other than the market value ; but the court ruled that no e\adence concerning the value of the land taken, i. e., the way itself, could be admitted except e\adence as to the market value of Tuttle Street, subject to the easements which the petitioner had sold before the taking, and the market value of Tuttle Street after the taking, when it had become a pul^lic way. And the court instructed the jury that they should find the fair market value, before the taking, of the peti- tioner's land abutting on Tuttle Street, and add to it the fair market value, before the taking, of the land embraced wdthin the limits of the street, subject to the easements therein; and that they should then find the fair market value of the first tract, after the taking, and add it to the fair market value of the second tract, after the taking; the damages to be awarded to the petitioner being the difference between the sum of the two market values before the taking, and the sum of the two market values after the taking. The jury were thus limited exclusively to a consideration of market values; and this, having regard to the nature and situation of the land taken, we think was erroneous. Ordinarily, where the value of lands or goods is to be ascertained, and they are of such a kind and so situated as to be available for sale in the ordinary course of trade or dealing, the market value is perhaps the b^st test, and under such cir- cumstances it is usually adopted in this Commonwealth. Lawrence V. Boston, 119 Mass. 126. Moulton v. Newburyport Water Co. 137 Mass. 163, 167. But market value is not a univereal test, and cases often arise where some other mode of ascertaining value must be re- sorted to. May V. Boston, 158 Mass. 21, 29. Boston & Albany Rail- road V. Cambridge, 159 Mass. 283. Handforth v. Maynard, 154 Mass. 414. Mather v. American Express Co. 138 Mass. ^5. Green v. Boston & Lowell Railroad, 128 Mass. 221. Murray v. Stanton, 99 Mass. 345. Stickney v. Allen, 10 Gray, 352. Boom Co. v. Patterson, 98 V. S. 403, 408. Reed's Petition, 13 N. H. 381. Troy v. Cheshire Railroad, 23 N. H. 83. The petitioner retained the owTiership of Tuttle Street, subject to rights of way and drainage which he had granted therein. This title might not be salable in the ordinary course of dealing, and yet it might have a real value to him, for which he was entitled to l>e paid. The damage to abutting lots could be measured by the diminution, if any, of market value. Lots not abutting were properly excluded from con- sideration as too remote, and only affected in common with the rest of the neighborhood. The petitioner was entitled to compensation for 698 d.jldy v. condit. [chap. vi. his interest which was taken in Tuttle Street, and for the injury, if any, to his remaining lots which abutted thereon. Taking both together, how much loss did he suffer? How much less was the value of what he had left, after the taking, than the value of the whole before the taking? Lincoln r. Commonwealth, 164 ]Mass. 368, 376. So far as the abutting lands are concerned, regard should be had to the market value; but so far as his interest in Tuttle Street is concerned, other considerations come in. The court excluded e\nidence of the fair value of the improvement made by the petitioner in grading Tuttle Street, and in putting a sewer into it, and also the increased cost of building on the petitioner's remaining abutting lots, by reason of the existing city ordinances and regulations applicable to public streets, and the increased cost of re- moving the sand, sod, and loam therefrom. But in estimating the loss to the petitioner we think all these particulars might be con- sidered, not as showing independent and distinct items to be added to his loss, (Squire v. Somerville, 120 Mass. 579,) but as elements which might be considered in determining the real value of what he had before the 'taking, and of what he had afterwards. Central Bridge r. Lowell, 15 Gray, 106, 111. Cushing v. Boston, 144 Mass. 317, Butchers' Slaughtering & Melting Association v. Commonwealth, 163 Mass. 386. Manson v. Boston, 163 Mass. 479. . . . In the opinion of a majority of the court, the entry must be, Exceptions sustained. DADY V. CONDIT. Supreme Court of Illinois. 1904. [Reported 209 III. 488.] Action for breach of contract to convey a quarter section of land near the city of Waukegan. A verdict for the plaintiff was found, and on appeal judgment on the verdict was affirmed. Defendant seeks reversal on several grounds, one of them relating to the com- petency of certain evidence.^ Ricks, J. Appellant first insists that there was error in the trial of this case by "allowing incompetent evidence to be introduced by the appellee as to the value of the land for speculative purposes and future uses under altered conditions, which might or might not arise." We have examined the evidence referred to, and, under the circum- stances of this ease, are of the opinion that its admission was proper. The land in question was in the vicinity of Waukegan. At the time of 1 This short statement is substituted for that of the reporter. Only so much of the opinion as relates to the competency of evidence is given. — Ed. SECT. II.] DADY V. CONDIT. 699 the execution of the contract out of which this htigation arises, and for several years thereafter and until the depression of 1893, Wau- kegan and the surrounding district was experiencing a boom occa- sioned by rumors that the Washburn & Moen Manufacturing Com- pany, and other concerns, were about to establish factories there, and the above mentioned factory, and many others, were, in fact, so es- tablished, and as a result the population of Waukegan was greatly increased, and from the early part of 1891 until the panic of 1893 there was great activity in the sale of real estate in said district. As a result of these conditions the evidence clearly shows there was a great demand for land adjacent to and surrounding Waukegan for subdivision and lot purposes, and the cash market value of said lands was greatly enhanced in price. The lands in question here were farm lands, and for such use, it is contended, were worth but about SoO or $60 per acre, but numerous witnesses offered by appellee testified that by reason of the existence of the conditions above mentioned the lands in question, on August 1, 1891, had a fair cash market value of from $300 to SoOO per acre. The plaintiff had a right to show that at the time of the breach of the contract the lands had a cash market value for subdivision purposes, and numerous witnesses testified to this fact. The e\adence of these \\itnesses was supplemented by an actual view of the premises by the jury. The testimony of numerous wdtnesses for appellee was to the effect that by reason of the dcA^elop- ments at that time taking place and expected to take place in Wauke- gan, there was a greatly increased demand for all property in that vicinity. This testimony was proper for the purpose of showang the cash market value of the land in question on August 1, 1891. South Park Comrs. v. Dunlevy, 91 111. 49. Counsel for appellant seem, however, to insist that this testimony related solely to speculative and prospective valuation and of an imaginative character, which has never, in fact, materialized, and was therefore incompetent. Appellant relies upon that class of cases which hold that in estimating the value of lands, remote, uncertain, imaginary and speculative uses cannot be shown. We do not, how- ever, regard those cases as in point here. The rule established by such cases is well recognized and not to be disturbed, but there is a broad distinction, which appellant's argument does not seem to recognize, between the value which the expectation of changes or improvements may give to land and the value which changes or improvements, when actually made, may add to land. The cases relied upon by appel- lant do not hold that if the expectation of changes or improvements does actually affect the cash market value of land sold in the open market, such value is not a proper basis for the estimation of damages. The theory on which this case was tried was that appellant was under contract to convey to appellee land on August 1, 1891; that 700 THE MEDIANA. , [CHAP. VI. he broke his contract and wJis liable to appellee for the excess, if any, above the contract price which appellee could have obtained for such land in the open market, when sold for cash, on the day of such breach. It is conceded that the said land on said day, if used only for farm purposes, was not worth more than or scarcely half of the contract price. But appellee, if the lands were conveyed to him according to the contract, was under no obligation to continue their use for farm purposes. It was his pri^-ilege to buy and sell and derive a profit on his contract, if he could. The testimony offered was to the effect that appellee, had he been permitted to sell in the open market, for cash, could have, on said August 1, 1891, derived a certain profit, thus giving the jury a basis on which to estimate his damages. It is not uncommon for the price which real estate will bring in the open market to be affected, more or less, by the expectation of changed conditions in the neighborhood of the property, and in this case, so far as the cash market value of the land was affected by such expected change, the appellee was entitled to show by the evidence and have the benefit thereof. Cobb v. Boston, 112 IVIass. 181; Moulton v. Newburyport Water Co. 137 Mass. 163; Sanitary District v. Loughran, 160 111. 362. ^ . THE MEDIANA. House of Lords, 1900. [Reported [1900] A. C. 11.3.] The Mersey Docks and Harbour Board, who as owners of the light- ship Comet were respondents, are by statute charged with the duty of hghting the approaches to the river Mersey. There are four stations to be lighted, and, for the purpose of carrying out the work, the Mersey Docks and Harbour Board o^\Tn six lightships, four of which are always in use, and a fifth is kept to replace the lightships as they are brought in for overhaul. A sixth (the Orion) lies moored in the Mersey ready to take the place of any one of the four lightships in case of special emergency, such as damage by collision or other accident. On April 23, 1898, the steamship Mediana, belonging to the appellants, came into collision with, and sank, the Comet, one of the lightships. After the collision the Orion was towed out to take the place of the Comet, and was so engaged for seventy-four days, during which period she was not required for any other purpose. The appellants admitted liability, sul)ject to a reference to the Liverpool District Registrar to assess the damages. The respondents brought an action in the Admiralty Division SECT. II.] THE MEDIANA. 701 against the appellants, and filed a claim consisting of eight items, the first seven covering all the actual out of pocket expenses (for removing and repairing the Comet and moving the Orion, &c.) to which the respondents were put: these were not disputed. Item 8 was as follows: " Loss of the use of the lightship Comet, or hire of the services of the lightship Orion on the station from April 23 to July 6, 1898 — seventy- four days at 41. As. — 310/. 6^." The expense to the board of main- taining the sixth lightship, including interest oh capital invested in her, amounts to about £1000 per annum. During the last twenty-five years there had been twenty-three cases of damage by collision, in eleven of which it had been necessary to replace the lightship by the one kept in readiness in the river, and during the same period there had been four cases in which it had been necessary to withdraw one of the lightships in consequence of damage occasioned by heavy weather, and not by collision. The appellants disputed their liability in respect of item 8, but agreed to the sum of £310, 6s. if the board was entitled to anything under that head. The registrar allowed all the items. Pliillimore, J. , disallowed item 8. The Court of Appeal (A. L. Smith and Collins, L.JJ.) reversed this decision and confirmed the registrar's report. [1899] P. 127. Earl of Halsbury L. C. My Lords, I think that this case is really governed by the principles laid down in this House in the case of The Greta Holme, [1897] A. C. 596, and I therefore agree wath the Court of Appeal and move your Lordships that this judgment be affirmed. My Lords, it is true that in that case there were 'two circumstances which I mention for the purpose of pointing out that I do not omit to consider them, namely, that the dredger was actually prevented from doing work which the particular corporation entrusted with the duty of doing it had intended it to do; and further, as wqs pointed out by Lord Watson, the effect of not dredging during the period while the dredger was rendered incapable of doing its proper work was to set up an additional amount of silt which would itself of course be an injury which would properly sound in damages when the person responsible for taking away the dredger was called upon to pay. These two cir- cumstances were not unnaturally pointed out liy the learned counsel who challenged this judgment as shewing that there were grounds for the decision in that case which do not apply here. But, my Lords, I think it is impossible to read the judgments of those noble and learned Lords who took part in that case without seeing that it rests upon a much -wider and broader principle than would be applicable to the particular circumstances which I have referred to in that case. Lord Herschell in terms did lay down a much broader principle, and I may say that I myself intended to lay it down, though I may have expressed myself imperfectly, namely, that where by the wrongful act of one man something belonging to another is either itself so injured as not to be 702 THE MEDIANA. [CHAP. VI. capable of being used or is taken away so that it cannot be used at all, that of itself is a ground for damages. And, my Lords, here I wish, with reference to what has been sug- gested at the bar, to remark upon the difference between damages and nominal damages. "Nominal damages" is a technical phrase which means that you have negati\ed anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term "nominal damages" does not mean small damages. The extent to which a person has a right to recover what is called by the compendious phrase damages, but may be also represented as compensation for the use of something that belongs to him, depends upon a variety of circumstances, and it certainly does not in the smallest degree suggest that because they are small they are necessarily nominal damages. Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay dowTi any principle upon which you can give damages; nevertheless it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a A\Tongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such things. What manly mind cares about pain and suffering that is past? But nevertheless the law recognises that as a topic upon which damages may be given. Now, in the particular case before us, apart from a circumstance which I AA-ill refer to immediately, the broad proposition seems to me to be that by a wrongful act of the defendants the plaintiffs were de- prived of their vessel. When I say deprived of their vessel, I will not use the phrase " the use of the vessel." What right has a wrongdoer to consider what use you are going to make of your vessel? More than one case has been put to illustrate this: for example, the oA\Tier of a horse, or of a chair. Supposing a person took away a chair out of my room and kept it for twelve months, could anybody say you had a right to diminish the damages by shewing that I did not usually sit in that chair, or that there w^ere plenty of other chairs in the room? The proposition so nakedly stated appears to me to be absurd; but a jur\- ha\-e very often a very difficult task to perform in ascertaining what should be the amount of damages of that sort. I know very well that as a matter of common sense w^hat an arbitrator or a jury very often do is to take a perfectly artificial hypothesis and say, "Well, if SECT. II.] THE MEDIANA. 70.3 you wanted to hire a chair, what would you have to give for it for the period"; and in that way they come to a rough sort of conclusion as to what damages ought to be paid for the unjust and unlawful with- drawal of it from the owner. Here, as I say, the broad principle seems to me to be quite independent of the particular use the plaintiffs were going to make of the thing that was taken, except — and this I think has been the fallacy running through the arguments at the bar — when you are endeavouring to establish the specific loss of profit, or of sometliing that you otherwise would have got which the law recognises as special damage. In that case you must shew it, and by precise evi- dence, so much so that in the old system of pleading you could not recover damages unless you had made a specific allegation in your pleading so as to give the persons responsible for making good the loss an opportunity of inquiring into it before they came into court. But when we are speaking of general damages no such principle applies at all, and the jury might give whatever they thought would be the proper equivalent for the unlawful withdi'awal of the subject-matter then in question. It seems to me that that broad principle comprehends' within it many other things. There is no doubt in many cases a jury would say there really has been no damage at all: "We will give the plain- tiffs a trifling amount" — not nominal damages, be it observed, but a trifling amount; in other cases it would be n^ore serious. It appears to me, therefore, that what the noble and learned Lords who gave judgment in your Lordships' House intended to point out, and what Lord Herschell gives expression to in plain terms, was that the unlawful keeping back of what belongs to another person is of itself a ground for real damages, not nominal damages at all. Of course I observe that it has been suggested that this was not an action for trover or detinue; but although those are different forms of action, the principle upon which damages are to be assessed does not depend upon the form of action at all. I put aside cases of trespass where a high-handed procedure or insolent behaviour has been held in law to be a subject of aggravated damages, and the jury might give what are called pimitive damages. Leaving that aside, whatever be the form of action, the principle of assessing damages must be the same in all Courts and for all forms of what I may call the unlawful detention of another man's property. My Lords, that seems to me to be so plain that I confess I have been somewhat puzzled to learn that it has been decided in the Ad- miralty Courts that the loss of the use of a vessel under the circum- stances of this case has been treated (if it has really been so treated ; I have serious doubt about it) as something for which no moneys counted could possibly be allowed. I can only say that I am very glad such a principle has not been affirmed by your Lordships' House, because it seems to me to be inconsistent with principle and very unreasonable in itself. 704 THE MEDIANA. [CHAP. VI. My Lords, the only difficulty I have had in this case has been in regard to the case in the Privy Council (The City of Peking. 15 App. Cas. 438). I think, with some labour, I have discovered the clue which guided the learned judges in coming to the conclusion that they did. It is to be observed in the first place that there is a difficulty in understanding that case without the reports of those persons who had to assess the damages — it was the registrar, not a jury ; and the report certainly is not a model of clearness so far as it is quoted. It is very difficult, indeed, to understand the judgment without having the report before one, but I think I have discovered the clue to the judg- ment which was arrived at. At page 447 of the report I find this as part of the judgment: "It would be very unjust to charge the defend- ant £95 a day or anything for the loss of the use of the Saghahen during her detention at Hong Kong for the time during which the Melbourne and her crew Avere doing" (this is I think the clue to the whole story) "at the defendants' expense the work which the Saghalien and her crew ought to have done." I have not been able sufficiently to dis- entangle the facts to say whether that included anything for the use of the vessel or not; but the principle upon which they decided it was that the defendants were themselves chargeable and paid for the use of the Melboiu'ne in place of the other vessel ■ — that it belonged as a matter of fact to the plaintiffs is immaterial. The principle of the deci- sion, as I gather it from that passage, is that the defendants had already paid for tlie use of it and for the use of the crew and for the navigation of it, and therefore if during that period when the defendants were actually called upon by the registi^ar's report to pay for the use of the IVIelbourne they had had to pay £95 a day also for the detention of the Saghalien, it is very obAaous that they would have been paying twice over, and therefore not unnaturally, I think, the Court came to the conclusion in that case, not as a principle of law at all but as applicable to the particular facts of that case, that, to put in plain terms what I understand to be the effect of the judgment, you cannot have damages for that detention because you have already got paid for the use of the substituted vessel in the form of the damages that the registrar has assessed. If that is the principle of the case, of course it is not incon- sistent with, but, on the contrary, on the same lines wath the judg- ment which the Court of Appeal has given in the present case. Whether the question was raised or not of the absolute use of the vessel as dis- tinguished from the payment of the crew and all the other things that were included in the lump sum in the registrar's report, I am not able to say. Happily we have present to-day one of the noble and learned Lords who took part in that judgment, and he will probably be able to tell your Lordships whether that question was raised or not. Un- doubtedly it is not raised in the report at all, but, as I say, the clue to the judgment is what I have already pointed out, and therefore, to my mind,, that decision presents no difficulty at all in arriving at the SECT. II.] GLASPY I'. CABOT. 705 conclusion I have indicated, namely, that this judgment ought to be affirmed; and I therefore move vour Lordships that this appeal be dismissed with costs. Lords Macnaghten, Morris, Shand, James of Hereford and Brampton delivered concurring opinions. Judgment appealed from affirmed and appeal dismissed with costs. GLASPY V. CABOT. Supreme Judicial Court of Massachusetts, 1883. [Reported 135 Mass. 435.] Action for conversion of a schooner while she lay on "Coffin's Beach" inside Annisquam Harbor.'^ Field, J. . . . The remaining question is the measure of damages in the action against Power and Murphy. These defendants con- verted the schooner as she lay on Coffin's Beach in Annisquam Harbor. If there was no market for such a vessel at Annisquam, it was her a alue as she lay there that the defendants are liable to pay. But in deter- mining her value there by her value elsewhere, a reasonable allowance must be made "for the probable cost of getting her off, repairing her, and getting her" to market, "less also a reasonable alloM^ance for diminution in her market value on account of having been ashore." These allowances were made. The risks and chances of getting her afloat and getting her to market must also be taken into account. If there was no market at Annisquam, the learned justice had a right to consider, in assessing damages, the market value in St. John, if that was the principal market, or one of the principal markets, in which such vessels are bought and sold, and it was practicable to attempt to carry her there. He had a right also to consider other markets; the test is what buyers of vessels, from St. John, Boston, or other ports, would pay for her as she lay on Coffin's Beach, if all the facts of her condition were kno^ni. If there were no direct satisfactory evi- dence of this, and the court was satisfied that St. John was the best market, and that it was practicable to attempt to take her there, her market value when taken to St. John could be considered ; but, in addi- tion to the allowances made from her market \alue in St. John, there should have been an allowance for the fair value of the risks of getting her there. If she were properly repaired for the voyage, the usual rate of insurance for such a vessel on such a voyage would be evidence of the value of the risk of taking her from the port of repair to St. John. Perhaps a fair salvage for getting her off and bringing her to a port of repair, when the salvors would be ehtitled to nothing except out of 1 This short statement is substituted for that of the reporter. — Ed. 706 FIVE TRACTS OF LAND V. UNITED STATES. [CHAP. VI. the property saved, would be evidence of the amount of the allowance to be made for the risk and cost of removing her to such a port. We think the rule of damages adopted was too liberal under the circum- stances stated in the exceptions, and that there must be a new trial in the second action, upon the amount of damages only. Bourne v. Ashley, 1 Lowell, 27. Saunders v. Clark, 106 Mass. 331. Coolidge V. Choate, 11 Met. 79. Ordered accordingly. FIVE TRACTS OF LAND v. UNITED STATES. Circuit Court of Appeals, 1900. [Reported 101 Fed. Rep. 661.] Gray, Circ. J. The United States presented its petition to the judges of the circuit court of the United States for the Eastern dis- trict of ^Pennsylvania, setting out the act of congress of August 1, 1888, entitled "An act to authorize condemnation of land for sites of public buildings and other purposes," the act of general assembly of the state of Pennsylvania approved June 8, 1874, entitled "An act providing a mode by which the title to all estates and interests in land in the state of Pennsylvania may be vested in the United States when no agreement can be made with the owTiers of the same for the purchase thereof," and the act of congress approved February 11, 1895, entitled "An act to establish a national military park at Gettysburg, Pennsylvania," and describing five certain tracts of land in Cumber- land township, Adams county. Pa., the title to which it was neces- sary that the LTnited States acquire, in order to carry out the purpose of said last-mentioned act of congress; that the five tracts of land are contained in map prepared by Maj. Gen. Daniel E. Sickles, United States army, of the battlefield of Gettysburg, and were occupied by the infantry, cavalry, and artillery on the 1st, 2d, and 3d days of July, A. D. 1863, and praying for the appointment of a jury to view, esti- mate, and determine the value of the said lands. . . . The court, in its charge to the jury, said : "Upon these subjects, however, while they will not, perhaps, be free from difficulty, you will, I assume, have less difficulty than upon the remaining element of value which is insisted upon, namely, that which has been spoken of as 'historic value.' There is no doubt that historic association may enter into the market value of the land, but you are not to give, as separate items — First, market value; and, second, historic value. If you did that, you would depart from what I have said to you the law has established as the measure of just compensation, which is market value. But, as I said to counsel during the course of the cause, if a piece of land has in the market a SECT. II.] BRADLEY V. HOOKER. 707 value because there are trees upon it, a value because there are stones upon it, a value because it may be used to raise cereals, a value for any other physical peculiarity of the property, if it also has in the market a value based upon its historical associations, that as much enters into market value as would a mine opened upon the property, or a well dug upon it. It is a part of the different matters that go to contribute to the sum total of market value. Just in that way you are entitled to consider historic value, if you believe from the evidence that market value is at all enhanced by historical value. . . . Nor, keeping your minds always to market value, are you to consider the valuation with reference to the necessities of the government of the United States to take the property, or the particular purposes to which the United States government proposes to put it. . . . You are getting at the market value. Therefore observe, not what the United States might be willing to pay in order to carry out the purpose which it has in view, — that is not the question, — but what in the market would any purchaser desiring to buy this property be willing to give for it, considering all the elements that have been stated, in order to acquire it from a seller willing to sell." In the passages quoted, we think the learned judge in the court below has clearly and correctly stated the rules of law which should govern a jury in the ascertainment of the value of the land proposed to be taken by the United States, and the damages resulting there- from. . . . The judgment in this case is hereby affirmed. BRADLEY v. HOOKER. Supreme Judicial Court of Massachusetts, 1900. [Reported 175 Mass. 142.] Tort, for the conversion of one mahogany-frame lounge, covered with plush, old gold in color. At the trial in the Superior Court, before Bond, J., there was evi- dence tending to prove a conversion on or about July 2, 1897, and for the purpose of proving the damage which the plaintiff suffered therefrom, she called as a witness one Eunice M. Fleury, who, ha\ang been asked certain questions for the purpose of showing her qualifica- tions to testify as an expert on the value of the lounge, was asked by the plaintiff, "What would be the fair market value of that sofa in July, 1897?" to which question the witness answered: "To anybody that liked antique furniture it was worth fifty dollars, but if it Avas sold at auction, or to a person who did n't care for antique furniture, it would be probably from fifteen dollars to twenty dollars." The defendants objected to the answer, and asked that it be stricken out; 708 LOUISVILLE & NASHVILLE R. R. CO. I'. STEWART. [cHAP. VI. but the judge overruled the objection. The defendants then objected to that part of the answer which stated that " To anybody who liked antique furniture it was worth fifty dollars," and asked that that part might be stricken out; but the judge overruled the objection, and the defendants excepted. There was no evidence from which it could be inferred that the terms "second hand furniture" and "antique furniture" are synony- mous with or in any way descriptive of the same kind of furniture, or that such terms were used in that sense by Fleury; but there was evi- dence fully describing the construction and age of the lounge. The only other testimony as to the value of the lounge was that of the plaintift', who testified that it was worth between fifteen and twenty dollars. The jury returned a verdict for the plaintiff; and the defendants alleged exceptions. Holmes, C J. The question called for the market value of the converted object, and the answer was an attempt to give it. The market value is at least the highest price that a normal purchaser not under peculiar compulsion will pay at the time and place in question in order to get the thing. See National Bank of Commerce v. New Bedford, 155 Mass. 313, 315. In the stock exchange buyers and sellers are brought together in a focus, with the result that there is no danger of missing the highest price by the accident of missing the man who would give it. Even if at a given moment there is no buyer of the class that would most desire a certain stock or bond, there is an organized public ready to buy upon the anticipation that such a buyer will be found, and regulating the price which it will pay, more or less by that anticipation. There is no such focus for old furniture. The answer very properly recognized the uncertainty of encountering a purchaser who would give the reasonably possible highest price, and named an alternative sum. In a case like this market value is a cri- terion which oscillates Mdthin limits, because, in the absence of a balance wheel like the stock exchange, it cannot be assumed with re- gard to a single object and a single sale that the element of accident is eHminated, and that the most favorable purchaser will be encountered. Exceptions overruled. I LOUISVILLE AND NASITV^LLE RAILROAD CO. v. STEWART. Supreme Court of Mississippi, 1900. [Reported 78 Miss. 600.] Mrs. Stewart, the appellee, was the plaintiff, and the railroad com- pany was defendant in the court below. The plaintiff shipped a car load of furniture and household effects, including several oil portraits. SECT. II.] BARKER V. LEWIS STORAGE & TRANSFER CO. 709 from Bay St. Louis, Mississippi, to New Orleans, Louisiana. The furniture was badly damaged and the portraits destroyed when it reached New Orleans, and the plaintiff sued to recover damages because thereof. On the trial she made out her case except as to the portraits. The state of the evidence touching their value is stated in the opinion of the court. Plaintiff recovered a judgment for a sum so large that it necessarily embraced a considerable sum for the portraits, and the defendant appealed to the supreme court. Whitfield, C. J. The court excluded the hearsay testimony of Mrs. Stewart as to the value of the oil portraits, and there was no evidence before the jury as to cost. Nor was there any as to what it would cost to replace or restore them; nor any of any kind except that she was allowed to answer as to what they were worth to her from the associations connected with them, they being family portraits, their ' purely sentimental value in other words. This is not competent. The true rule in such cases is not to inquire as to market value, since such articles have no market value, but to show the "actual value to him who ovvms the portraits, taking into account the cost, the practicability and expense of replacing them, and such other considerations as in the particular case affect their value to the o\\Tier." Green v. R. R., 128 Mass. 22L International R. R. Co. v. Nicholson, 61 Tex. 550. Hutchinson on Carriers, § 7706. It was error not to have sustained the objection made to this testi- nion3\ But the evidence would abundantly sustain a verdict for $538 (damages to the other articles), and if appellant will remit down to that sum, the judgment will be affirmed, since on the facts of tliis record there is no merit in any other contention. So ordered. BARKER V. LEWIS STORAGE AND TRANSFER CO. Supreme Court of Errors, Connecticut, 1905. [Reported 78 Co?in. 199.] Prentice, .T. The plaintiffs delivered to the defendant as a ware- houseman for storage certain household furniture and personal effects. This action was brought to recover damages for their conversion. Judgment having been rendered for the plaintiffs upon the verdict of a jury, the defendant appealed, assigning various reasons of appeal which, after elimination and consolidation, are in its brief reduced to four claims of error. The most comprehensive and important of these involves a consideration of the rule for the assessment of damages. The property in question included, as was claimed, certain family records, pictures, photographs, heirlooms and other articles of peculiar value to the plaintiffs. With respect to these articles the court gave 710 BARKER V. LEWIS STORAGE & TRANSFER CO. [CHAP. VI. instructions in the language of Green v. Boston & L. R. Co., 128 Mass. 221, of which no complaint is made. The remaining property was household furniture and effects, in- cluding books, all claimed to have been purchased by or presented to the plaintiffs when new for use by them in housekeeping, and in fact so used by them in their home in New Haven until the time that they were stored with the defendant upon the occasion of their having temporarily broken up housekeeping to go into the country. The defendant claimed that the measure of the plaintiffs' recovery for these articles was their fair market value at the time and place of conversion, with lawful interest since that date. It asked the court to so charge, and sought by the introduction of evidence to show that there was a second-hand market for such things in New Haven, and presumably, although no definite offer was made, to follow up that line of inquiry by offering evidence of some sort claimed to show the value of articles of the kind in question in such market. The court was correct in refusing to instruct the jury as requested, and in excluding said testimony. The cardinal rule is that a person injured shall receive fair compensation for his loss or injury and no more. Baldwin v. Porter, 12 Conn. 473. Commonly in cases of con- version the loss is the value of the property. Baldwin v. Porter, supra. Commonly the value of the property as representing the owner's loss is its market value, if it have one, since thereby is indicated the cost of replacing. Hence the subordinate rule of general application ap- pealed to by the defendant. But the principal rule, which seeks to give fair compensation for the loss, is the paramount one, and ordi- narily when the subordinate one fails to accomplish the desired result it yields to an exception or modification. 1 Suth. on Dam. (3d ed.), § 12. It is now generally recognized that wearing apparel in use, and household goods and effects owned and kept for personal use, are articles which cannot in any fair sense be said to be marketable, and have a market ^•alue, or at least a market value which is fairly indica- tive of their real value to their owTier and of his loss by being deprived of them. So it has been frequently, and we think correctly, held that the amount of his recovery in the event of conversion ought not to be restricted to the price which could be realized by a sale in the market, but he should be allowed to recover the value to him based on his actual money loss, all the circumstances and conditions considered, resulting from his being deprived of the property, not including, however, any sentimental or fanciful value he may for any reason place upon it. Denver, S. P. & P. R. Co. v. Frame, 6 Colo. 382, 385; McMahon v. Dubuque, 107 la. 62; International & G. N. Ry. Co. v. Nicholson, 61 Tex. 550, 553; Fairfax v. New York C. & H. R. R. Co., 73 N. Y. 167; Sell V. Ward, 81 111. App. 675; 2 Joyce on Dam., § 1037; 4 Suth. on Dam.; § 1117; 1 Sedg. on Dam. (8th ed.), § 251. -' SECT. III.] GRIFFIN V. COLVER. 711 SECTION III. Certainty. GRIFFIN V. COLVER. Court of Appeals, New York, 1858. [Reported 16 iV. F. 489.] Appeal from the Supreme Court. The cause was tried before a referee. The plaintiff agreed to build a steam engine, A\atli boilers, &c., for the defendants, and to deliver it to them on a day certain. He failed to do so, and a delay of one week occurred, during which time the defendants lost the use of certain machinery for the sawing and planing of lumber, which the steam engine was intended to drive, and which the plaintiff knew it was intended to drive. The plaintiff having brought his action for the price of the engine, the defendants recouped their damages from the failure to deliver it at the time fLxed by the contract. They gave evidence that the net average value of the use of the engine at the place where it was located, for the pur- pose for which it was intended, and in connection with the defendants' machinery, was S50 per day above the wear and tear and the expense of running it. This estimate was arrived at by a calculation from the quantity of lumber the machines driven by the engine would cut and plane in a day, the prices received by the defendants for planing, and the expenses of running and the wear and tear. The referee held that this did not present the proper measure of damages, but he allowed the defendants $50 "as a proper compensation upon their investment or the value of the property which was partially unoccupied by reason of the plaintiff's default." The defendants excepted to his report on this ground. The judgment entered upon the report was, on appeal, affirmed by the Supreme Court, at general term in the fifth district, and the defendants appealed to this court. Selden, J. The only point made by the appellants is, that in estimating their damages on account of the plaintiff's failure to furnish the engine by the time specified in the contract, they should have been allowed what the proof showed they might have earned by the use of such engine, together with their other machinery, during the time lost by the delay. This claim was objected to, and rejected upon the trial as coming within the rule which precludes the allowance of profits, by way of damages, for the breach of an executory contract. To determine whether this rule was correctly applied by the referee, it is necessary to recur to the reason upon which it is founded. It is not a primary rule, but is a mere deduction from that more general and fundamental rule which requires that the damages claimed should in 712 GRIFFIN V. COLVER. [ciL\P. VI. all cases be shown, by clear and satisfactory evidence, to haye been actually sustained. It is a well-established rule«of the common law that the damages to be recovered for a breach of contract must be shown with certainty, and not left to speculation or conjecture; and it is under this rule that profits are excluded from the estimate of damages in such cases, and not because there is anything in their nature which should per sr prevent their allowance. Profits which would certainly have been realized but for the defendant's default are recoverable^ those which are speculative or contingent are not. Hence, in an action for the breach of a contract to transport goods, the difference between the price, at the point where the goods are and that to which they were to be transported, is taken as the measure of damages: and in an action against a vendor for not delivering the chattels sold, the vendee is allowed the market price upon the day fixed for the delivery. Although this, in both cases, amounts to an allow- ance of profits, yet, as those profits do not depend upon any contin- gency, their recovery is permitted. It is regarded as certain that the goods would have been worth the established market price, at the place and on the day when and where they should have been delivered. On the other hand, in cases of illegal capture, or of the insurance of goods lost at sea, there can be no recovery for the probable loss of profits at the port of destination. The principal reason for the differ- ence between these cases and that of the failure to transport goods upon land is, that in the latter case the time when the goods should have been delivered, and consequently that when the market price is to be taken, can be ascertained \\-ith reasonable certainty ; while in the former the fluctuation of the markets and the contingencies affecting the length of the voyage render every calculation of profits speculative and unsafe. There is also an additional reason, \az., the difficulty of obtaining reliable e^^dence as to the state of the markets in foreign ports; that these are the true reasons is shown by the language of Mr. Justice Story, in the case of the schooner Lively (1 Gallis. 315), which was a case of illegal capture. He says: "Independent, however, of all authority, I am satisfied upon principle that an allowance of damages, upon the basis of a calculation of profits, is inadmissible. The rule would be in the highest degree unfavorable to the interests of the com- munity. The subject would be involved in utter uncertainty. The calculation would proceed upon contingencies, and would require a knowledge of foreign markets to an exactness in point of tune and value which would sometimes present embarrassing obstacles. Much would depend upon the length of the voyage, and the season of the arrival; much upon the vigilance and acti\aty of the master, and much upon the momentary demand. After all, it would be a calculation upon conjectures and not upon facts." Similar language is used in the cases of the Amiable Nancy (3 Wheat. SECT. III.] GRIFFIN V. COLVER. 713 546) and L'Amistad de Rues (5 Wheat. 385). Indeed, it is clear that whenever profits are rejected as an item of damages, it is because they are subject to too many contingences, and are too dependent upon the fluctuations of markets and the chances of business, to constitute a safe criterion for an estimate of damages. This is to be inferred from the cases in our ovm courts. The decision in the case of Blanchard r. Ely (21 Wend. 342) must have proceeded upon this ground, and can, as I apprehend, be supported upon no other. It is true that Judge Cowen, in giving his opinion, quotes from Pothier the following rule of the ci-vil law, viz.: " In general, the parties are deemed to have con- templated only the damages and injury which the creditor might suffer from the non-performance of the obligations in respect to the particular thing which is the object of it, and not such as may have been acci- dentally occasioned thereby in respect to his ova\ (other) affairs." But this rule had no application to the case then before the court. It applies only to cases where, by reason of special circumstances having no necessary connection \\'ith the contract broken, damages are sus- tained which would not ordinarily or naturally flow from such breach : as where a party is pre\ented by the breach of one contract from avail- ing himself of some other collateral and independent contx-act entered into wdth other parties, or from performing some act in relation to his OMTi business not necessarily connected "w-ith the agreement. An in- stance of the latter kind is where a canon of the church, by reason of the non-delivery of a horse pursuant to agreen^ent, was prevented from arri\dng at his residence in time to collect his tithes. In such cases the damages sustained are disallowed, not because they are imcertain, nor because they are merely consequential or re- mote, but because they cannot be fairly considered as having been ■v\dthin the contemplation of the parties at the time of entering into the contract. Hence the objection is removed, if it is shown that the contract was entered into for the express purpose of enabling the party to fulfill his collateral agreement, or perform the act supposed. (Sedg. on Dam., c. 3.) In Blanchard r. Ely the damages claimed consisted in the loss of the use of the very article which the plaintift' had agreed to construct; and were, therefore, in the plainest sense, the direct and proximate result of the breach alleged. Moreover, that use was contemplated by the parties in entering into the contract, and constituted the object for which the steamboat was built. It is clear, therefore, that the rule of Pothier had nothing to do with the case. Those damages must then have been disallowed, because they consisted of profits depending, not, as in the case of a contract to transport goods, upon a mere question of market value, but upon the fluctuations of travel and of trade, and many other contingencies. The citation, by Judge Cowen, of the maritime cases to which I have referred, tends to confirm this view. This case, therefore, is a direct authority in support of the doctrine 714 GRIFFIN V. COLVER. [CHAP. VI. that whenever the profits claimed depend upon contingencies of the character referred to, they are not recoverable. The case of Masterton v. The Mayor, &c., of BrooklvTi (7 Hill, 61) decides nothing in opposition to this doctrine. It simply goes to sup- port the other branch of the rule, viz., that profits are allowed where they do not depend upon the chances of trade, but upon the market I value of goods, the price of labor, the cost of transportation, and other >.; questions of the like nature, which can be rendered reasonably certain V by evidence. From these authorities and principles it is clear that the defendants were not entitled to measure their damages by estimating what they might have earned by the use of the engine and their other macliinery had the contract been complied with. Nearly every element enter- ing into such a computation would have been of that uncertain character which has uniformly prevented a recovery for speculative profits. But it by no means follows that no allowance could be made to the defendants for the loss of the use of their machinery. It is an error to suppose that " the law does not aim at complete compensation for the injury sustained," but "seeks rather to divide than satisfy the loss." (Sedg. on Dam., c. 3.) The broad, general rule in such cases is, that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained; and this rule is subject to but two conditions: The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, must be such as might naturally be expected to follow its \aolation ; and they must be certain, both in their nature and in respect to the cause from which they proceed. The familiar rules on the subject are all subordinate to these. For instance : That the damages must flow directly and naturally from the breach of contract, is a mere mode of expressing the first; and that they must be not the remote but proximate consequence of such breach, and must not be speculative or contingent, are different modi- fications of the last. These two conditions are entirely separate and independent, and to blend them tends to confusion; thus the damages claimed maj' be the ordinary and natural, and even necessary result of the breach, and yet, if in their nature uncertain, they must be rejected; as in the case of Blanchard v. FAy, where the loss of the trips was the direct and neces- sary consequence of the plaintiff's failure to perform. So they may be definite and certain, and clearly consequent upon the breach of con- tract, and yet if such as would not naturally flow from such breach, but, for sonie special circumstances, collateral, to the contract itself or foreign to its apparent object, they cannot be recovered; as in the case of the loss by the clergyman of his tithes by reason of the failure to deliver the horse. SECT. III.] GRIFFIN V. COLVER. 715 Cases not unfrequently occur in which both these conditions are fulfilled : where it is certain that some loss has been sustained or damage incurred, and that such loss or damage is the direct, immediate and natural consequence of the breach of contract, but where the amount of the damages may be estimated in a variety of ways. In all such cases the law, in strict conformity to the principles already advanced, uniformly adopts that mode of estimating the damages which is most definite and certain. The case of Freeman v. Clute (3 Barb. S. C. R., 424) is a case of this class, and affords an apt illustration of the rule. That case was identical in many of its features with the present. The contract there was to construct a steam engine to be used in the process of manufacturing oil, and damages were claimed for delay in furnishing it. It was insisted in that case, as in this, that the damages were to be estimated by ascertaining the amount of business which could have been done by the use of the engine, and the profits that would have thence accrued. This claim was rejected by Mr. Justice Harris, be- fore whom the cause was tried, upon the precise ground taken here. But he nevertheless held that compensation was to be allowed for the "loss of the use of the plaintiff's mill and other machinery." He did not, it is true, specify in terms the mode in wliich the value of such use was to be estimated; but as he had previously rejected the probable profits of the business as the measure of such value, no other appropriate data would seem to have remained but the fair rent or hire of the mill and machinery; and such I have no doubt was the meaning of the judge. Thus understood, the decision in that case, and the reasoning upon which it was based, were I think entirely accurate. Had the defendants in the case of Blanchard v. Ely (supra) taken the ground that they were entitled to recoup, not the uncertain and contingent profits of the trips lost, but such sum as they could have realized by chartering the boat for those trips, I think their claim must have been sustained. The loss of the trips, which had certainly occurred, was not only the direct but the immediate and necessary result of the breach of the plaintiffs' contract. The rent of a mill or other similar property, the price which should be paid for the charter of a steamboat, or the use of machinery, &c., &c., are not only susceptible of more exact and definite proof, but in a majority of cases would, I think, be found to be a more accurate meas- ure of the damages actually sustained in the class of cases referred to, considering the contingencies and hazards attending the prosecution of most kinds of business, than any estimate of anticipated profits; just as the ordinary rate of interest is upon the whole a more accurate measure of the damages sustained in consequence of the non-payment of a debt than any speculative profit which the creditor might expect to realize from the use of the money. It is no answer to this to say that, in estimating what would be the fair rent of a mill, we must take 716 ALLISON V. CHANDLER. [CHAP. VI. into consideration all the risks of the business in which it is to be used. Rents are graduated according to the value of the property and to an average of profits arrived at by very extended obser^■ation; and so accurate are the results of experience in this respect that rents are rendered nearly if not cjuite as certain as the market value of commo- dities at a particular time and place. The proper rule for estimating this portion of the damages in the present case was, to ascertain what would have been a fair price to pay for the use of the engine and machinery, in view of all the hazards and chances of the business; and this is the rule which I understand the referee to have adopted. There is no error in the other allowances made by the referee. The judgment should therefore be affirmed. All the judges concurring, Judgment affirmed. ALLISON V. CHANDLER. Supreme Court of Michigan, 1863. ^ [Reported 11 Mich. 542.] Error to Wa\Tie Circuit, where Allison brought suit against Chan- dler for trespass in breaking into a store occupied l^y plaintiff in Detroit, and tearing off the roof, and committing other injuries by which it was rendered untenantable. . . . The Circuit Judge charged the jury, upon the question of damages, as follows: 1st. If the plaintiff is entitled to recover, he can only recover his actual damages if the jury find that the defendant, in doing the acts complained of, acted without malice and in good faith, under the belief that he had a legal right to the possession of the store, and to tear it down, and that, in determining the question of damages, they should not take into consideration the \alue of the good will of the place, or the plaintiff's probable profits. 2d. That if the jury find for the plaintiff, and find that the de- fendant, in tearing do^\^l the store, acted in good faith, and under an honest belief that he had a legal right to do so, that then the plaintiff can only recover his actual damages; and in determining them, the jury must confine themselves to the expenses of repairs after the first tearing off the roof, his loss of time and expense of moving, with the loss occasioned by the interruption of his business during the time of his removal, together vAth the difference, if any, between the rent paid and the fair rental value of the store for the year. And in deter- mining this, the jury will take into consideration all the facts and cir- cumstances of the case. To this charge the plaintiff excepted, and judgment having been SECT. III.] . ALLISON V. CIL\NDLER. 717 rendered in his favor for $100 only, the case came up for review upon the several exceptions thus taken. Christiancy, J. . . . Since, from the nature of the case, the damages cannot be estimated with certainty, and there is a risk of giving by one course of trial less, and by the other more than a fair compensa- tion — to say nothing of justice — does not sound policy require that the risk should be thrown upon the wrong doer instead of the injured party? However this question may be answered, we can not resist the conclusion that it is better to run a sliglit risk of giving somewhat more than actual compensation, than to adopt a rule which, under the circumstances of the case, will, in all reasonable probability, preclude the injured party from the recovery of a large proportion of the damages he has actually sustained from the injury, though the amount thus excluded can not be estimated with accuracy by a fixed and certain rule. Certainty is doubtless very desirable in estimating damages in all cases: and where, from the nature and circumstances of the case, a rule can be discovered by which adequate compensation can be accurately measured, the rule should be applied in actions of tort, as well as in those upon contract. Such is quite generally the case in trespass and trover for the taking or conversion of personal property; if the property (as it generally is) be such as can be readily obtained in the market and has a market value. But shall the injured party in an action of tort, which may happen to furnish no element of cer- tainty, be allowed to recover no damages (or merely nominal), because he can not show the exact amount with certainty, though he is ready to show, to the satisfaction of the jury, that he suffered large damages by the injury? Certainty, it is true, would thus be attained; but it would be the certainty of injustice. And, though a rule of certainty may be found which will measure a portion and 07}h/ a portion of the damages, and exclude a very material portion, which it can be ren- der(»d morally certain the injured party has sustained, though its exact amount can not be measured by a fixed rule; here to apply any such rule to the whole case, is to misapply it: and so far as it excludes all damages which can not be measured by it, it perpetrates positive injustice under the pretence of administering justice. The law does not require impossibilities; and can not therefore re- quire a higher degree of certainty than the nature of the case admits. And we can see no good reason for requiring any higher degree of cer- tainty in respect to the amount of damages, than in respect to any other branch of the cause. Juries are allowed to act upon probable and inferential, as well as direct and positive proof. And when, from the nature of the case, the amount of the damages can not be esti- mated with certainty, or only a part of them can be so estimated, we can see no objection to placing l)efore the jury all the facts and circumstances of the case, having any tendency to show damages, or their probable amount; so as to enable them to make the most in- •f 718 ALLISON V. CHANDLER. [CHAP. VI. telHgible and probable estimate which the nature of the case will per- mit. This should, of course, be done with such instructions and advice from the Court as the circumstances of the case may require, and as may tend to prevent the allowance of such as may be merely possible, or too remote or fanciful in their character to be safely con- sidered as the result of the injury. In the adoption of this course it will seldom happen that the Court, hearing the evidence, will not thereby possess the means of forming a satisfactory judgment whether the damages are unreasonable, or ex- orbitant ; and, if satisfied they are so, the Court have always the power to set aside the verdict and grant a new trial. The justice of the principles we have endeavored to explain will, we think, be sufficiently manifest in their application to the present case. The evidence strongly tended to show an ouster of the plaintiff for the balance of the term, by the defendant's act. This term was the property of the plaintiff; and, as proprietor, he was entitled to all the benefits he could derive from it. He could not by law be com- pelled to sell it for such sum as it might be worth to others; and, when tortiously taken from him against his will, he can not justly be limited to such sum - — or the difference between the rent he was pajvnng and the fair rental \alue of the premises — if the premises were of much greater and peculiar value to him, on account of the business he had established in the store, and the resort of customers to that particular place, or the good "will of the place, in his trade or business. His right to the full enjoyment of the use of the premises, in any manner not forbidden by the lease, was as clear as that to sell or dispose of it, and was as much his property as the term itself, and entitled to the same protection from the laws. He had used the premises as a jewelry store, and place of business for the repairing of watches, making gold pens, &c. This business must be broken up by the ouster, unless the plaintiff could obtain another fit place for it; and if the only place he could obtain was less fitted and less valuable to him for that purpose, then such business would be injured to the extent of this difference; and this would be the natural, direct and immediate consequence of the injury. To confine the plaintiff' to the difference between the rent paid and the fair rental value of the premises to others, for the balance of the term, would be but a mockery of justice. To test this, suppose the plaintiff is actually paying that full rented value, and has established a business upon the premises, the clear gains or profits of which have been an average of one thousand dollars per year; and he is ousted from the premises and this business entirely broken up for the balance of the term; can he be allowed to recover nothing but six cents damages for his loss? To ask such a question is to answer it. The rule which would confine the plaintiff' to the difference between such rental value and the stipulated rent can rest only upon the assumption that the plaintiff' might (as in case of personal property) go at once into the SECT. III.] ALLISON V. CHANDLER. 719 market and obtain another building equally well fitted for his business, and that for the same rent; and to justify such a rule of damages this assumption must be taken as a conclusive presumption of law. How- ever such a presumption might be likely to accord with the fact in the city of New York, in most western cities and towTis it would be so ob- viously contrary to the common experience of the facts, as to make the injustice of the rule gross and palpable. But we need not further discuss this point, as a denial of any such presumption was clearly involved in our former decision. The plaintiff in this case did hire another store, "the best he could obtain, but not nearly so good for his business" — "lais customers did not come to the new store, and there was not so much of a thorough- fare by it, not one one quarter of the travel, and he relied much upon chance custom, especially in the watch repairing and other mechanical business." This injury to the plaintiff's business was as clearly a part of his damages as the loss of the term itself. This point also was de- cided in the former case, and we there further held that the declara- tion was sufficient to admit the proof of this species of loss. Now if the plaintiff is to be allowed to recover for this injury to his business, it would seem to follow, as a necessary consequence, that the value of that business before the injury as well as after, not only might, but should be shown, as an indispensable means of showing the amount of loss from the injury. If the business were a losing one to the plaintiff before, his loss from its being broken up or diminished (if any thing) would certainly be less than if it were a profitable one. It is not the amonnt of business done, but the gain or -profit arising from it, which constitutes its value. But it is insisted that loss of profits constitutes no proper ground or element of damages. If there be any such rule of law it is certainly not a universal, and can hardly be called a general rule. Decisions, it is true, may be found which seem to take it for granted that the rule is universal. But there are numerous cases, even for breach of contract, in which profits have been properly held to constitute, not only an eU'vient, but a measure (and sometimes the only measure) of damages: as in Masterton v. The Mayor, 7 Hill, 61; Phil. W. & B. R. R. Co. v. Howard, 13 How. 344. And in actions for breach of contract in not delivering goods (as wheat or other articles) having a marketable value, as well as in most actions of trespass or trover for the taking or conversion of such property — wherever the difference between the contract price, or the market value at the time of taking or conversion, and the higher market value at any subsequent period, is held to con- stitute the damages — in all such cases this difference of price is but another name for profits, and is yet very properly held to be a measure of damages. There is nothing therefore in the nature of profits, as such, which prevents their allowance as damages. But in many, and perhaps the majority, of cases upon contract in which the question 720 ALLISON V. CHANDLER. [CHAP. VI. has arisen, they have been held to be too remote or dependent upon too many contingencies to be calculated with reasonable certainty, or to have been within the contemplation of the parties at the time of entering into the contract. But there are also cases for breach of contract where, though the profits were in their nature somewhat uncertain and contingent (and in most of them quite as much so as in the present case), they were yet held to constitute, not strictly a measure, but an element of damages proper for the consideration of a jury, to enable them to form a judg- ment or probable estimate of the damages; as in McNeill r. Reid, 9 Bing. 68; Bagley v. Smith, 10 N. Y. 489; Gale v. Leckie, 2 Stark 107; Ward V. Smith, 11 Price, 19; Driggs v. Dwight, 17 Wend. 71; and see Passenger v. Thorburn, 35 Barb. 17. iVnd in Waters v. Towers, 20 E. L. & E. 410 the jury were allowed to take into consideration the profits which might have been made upon a collateral contract (though void by the Statute of Frauds); and see McNeill v. Reid, supra; while by the American authorities, profits of this description have been almost uniformly rejected. But whatever may be the rule in actions upon contract, we think a more liberal rule in regard to damages for profits lost, should pre^'ail in actions purely of tort (excepting perhaps the action of trover). Not that they should be allowed in all cases without distinction: for there are some cases where they might, in their nature, be too entirely re- mote, speculative or contingent, to form any reliable basis for a proba- ble opinion. And perhaps the decisions which have excluded the anticipated profits of a voyage broken up by illegal capture, or collision, may be properly justified upon this ground: upon this, however, we express no opinion. But generally, in an action purely of tort, where the amount of profits lost by the injury can be shown with reasonable certaintv, we think thev are not onlv admissible in evidence, but that they constitute, thus far, a safe measure of damages ; as when they are but another name for the use of a mill (for example), as in W'hite v. Moseley, 8 Pick. 356; or for the use of any other property where the value or profit of the use can be made to appear with reasonable cer- tainty by the light of past experience, as might often be done where such profits had been for a considerable time uniform at the same season of the year, and there are no circumstances tending to show a probable diminution, had the injury not occurred. And possibly the same view, subject to the like qualifications, might have been taken of the profits of the plaintiff's business, had it been confined to the me- chanical trade of repairing watches and making gold pens, particularly if done purely as a cash business. But this business seems to have been carried on with that of the sale of jewelry ; he kept a jewelry store, and the profits of so much of his l)usiness as may be regarded as mer- cantile business, are dependent upon many more contingencies, and therefore more uncertain, especially if sales are made upon credit. *•;. * SECT. III.] ALLISON l\ CHANDLER. 721 Past profits, therefore, could not safely be taken as the exact measure of future profits; but all the various contingencies by which such profits would probably be afi'ected should be taken into consideration by the jury, and allowed such weig^ht as they, in the exercise of good sense and sound discretion, should think them entitled to. Past profits in such cases, where the business has been continued for some length of time, would constitute a very material aid to the jury in arri\ing at a fair probable estimate of the future profits, had the business still continued without interruption. Accordingly such past profits have been allowed for this purpose, both in actions ex contractu and ex delicto, though more frequently in the latter, where from the nature of the case no element of greater cer- tainty appeared, and the actual damages must be more or less a matter of opinion; and where, as in the present case, though somewhat incon- clusive, it was the best evidence the nature of the case admitted. See Wilkes r. Hungerford, 2 Bing. N. C. 281; Ingram v. Lawson, 6 Bing. N. C. 212; Lacour i'. The Mayor, 4 Duer, 406; and the following in actions upon contract, Driggs v. D\\aght, 17 Wend. 71; Bagley v. Smith, 10 N. Y. 489. But it is urged by the counsel for the defendant that damages for the loss of profits ought not to be allowed, because they could not have been within the contemplation of the defendant. Whether, as matter of fact, this is likely to have been true, we do not deem it important to inquire. It is wholly immaterial whether the defendant in com- mitting the trespass actually contemplated this, or any other species of damage to the plaintiff. This is a consideration which is confined entirely to cases of contracts, where the question is, what was the ex- tent of obligation, in this respect, which both parties understood to be created by the contract. But where a party commits a trespass he must be held to contemplate all the damages wliich may legitimately follow from his illegal act. And where a party, though acting in good faith, yet knowing his right to be disputed by a party in possession, instead of resorting to a judicial trial of his right, assumes to take the law into his own hands, and, by violence, to seize the property, or right in dispute, he must be held thereby to assume, on the one hand, the risk of being able to show, when the other party brings him into court, that the property or right was his or that his act was legal; or, on the other, of paying all the damages the injured party may have suffered from the injury; and if those damages are in their nature un- certain, then such as, from all the circumstances, or the best light the nature of the case affords, a jury in the exercise of good sense and sound discretion, may find to be a full compensation. We are therefore entirely satisfied that all the questions put to the witness, Allison, touching the nature, extent and profits of the busi- ness, before and after the trespass, were competent, and improperly overruled; and that the charge of the Court, so far as it excluded all 722 CHICAGO V. HrENERBEIN. [CHAP. VI. consideration of the good will of the place, its peculiar value to the plaintiff, and his probable profits, was erroneous. The judgment must be reversed, with costs to the plaintiff, and a new trial granted. The other Justices concurred. CHICAGO V. HUENERBEIN. Supreme Court of Illinois, 1877. [Reported 85 III. 594.] Walker, J. This was an action of case, against the city of Chicago, to recover damages produced by throwing stone, earth, etc., into the mouth of a small stream that usually discharged into the canal, whereby water was dammed and flowed back on the land, and six or seven acres could not be planted or cultivated during the years 1871, 1872 and 1873. The court below permitted appellee to prove that if the land had been planted with potatoes, the ground would have yielded two hun- dred bushels to the acre, and that they would have sold at about an average of seventy cents per bushel when matured, and that it would have cost about $35 per acre to plant, cultivate and market the pota- toes. And thus it was clauned that the land would have yielded in the aggregate near 3,550 bushels, and would have sold for a much larger sum than was found by the jury. On this evidence the jury found a verdict for plaintiff for the sum of SI, 250, and the court, after overruling a motion for a new trial, rendered judgment on the verdict, and the city appeals. The damages in this case are excessive, and the judgment must be reversed. The rule for the assessment of damages was wrong. In cases of this character the true measure is the fair rental value of the ground which was overflowed, and not the possible, or even the prob- able profits that might have been made, had the land not been over- flowed. Such damages are too remote and speculative, depending on too large a variety of contingencies which might never have happened. The result of the application of the rule in this case shows its wrong and injustice. Hence the rule adopted gave appellee nearly $74 per acre as an annual rent. This manifests the incorrectness of the rule. But the case of the Chicago and Rock Island R. R. Co. v. Ward, 16 111. 522, is referred to, as sustaining the rule adopted by the court below. That case, in some of its features, is like the case at bar. In that case it was held, the proof of the average value of the crop at maturity was proper, as a means of ascertaining its value when 'de- stroyed. But there, the crop was planted, and partly if not fully cultivated when destroyed, whilst here no crop was ever planted, nor SECT. III.] LEEDS V. METROPOLITAN GAS-LIGHT CO. 723 was any preparation made to plant the ground. It was overflowed before the planting season had arrived. But even if the principle there announced is broad enough to embrace the rule adopted in this case, we must hold that it should not be adopted as the measure of damages. We see that it has produced wrong and injustice. The rule announced in that case has not been followed in subsequent cases. See Olmstead V. Burke, 25 111. 86; Cilley r. Hawkins, 48 111. 308; Green v. Williams, 45 111. 206; and Chapman v. Kirby, 49 III. 211. Inasmuch as this land was not planted, and no one could know or calculate with any degree of certainty what such a crop would have produced had the ground been planted, the only certain measure of damages is the rental value of the land thus overflowed, and the use of which appellee was deprived. Any other is speculative and un- certain. Crops not planted are not in existence, and if planted are liable to so large a number of contingencies and accidents, that what they may yield can only be a matter of conjecture; and what land might produce, and what the crop would sell for when produced, is too uncertain to be adopted as a rule for the measure of damages when a person has been deprived of the use of land. Objections have been urged to th^ declaration, but leave is given to appellee, if he choose, to amend, so as to remove the objections urged. For the error indicated, the judgment of the court below is reversed, and the cause remanded. Judgment reversed. LEEDS V. METROPOLITAN GAS-LIGHT CO. Court of Appeals, New York, 1882, [Reported 90 N. Y. 26.] Finch, J. We think there was error in the mode of submitting to the jury the question of damages. Whether there was any evidence of negligence on the part of the defendant company upon which the verdict can rest, has been the principal controversy on the appeal, but need not be decided, since upon the new trial which must result the facts may be entirely different. If the evidence is insufficient now, it is possible that it may be made sufficient then. The plaintiif was injured by an explosion of gas in the cellar or vault of the house occupied by him, and which had escaped from a break in the defendant's main. The character of his injuries was described by the evidence, and among other things it was proved that he was engaged in business at the time of the injury, but had not been able to attend to business since. It was not showTi what his business was, or the value of his time, or any facts as to his occupation from which that value could be estimated. The jiu*y were left to guess or speculate upon this 724 LEEDS V. METROPOLITAN GAS-LIGHT CO. [cHAP. VI. value without any basis for their judgment, so far as loss of time was an element of the damages awarded. The court charged that the plaintiff, if entitled to a verdict, was " entitled to recover compensation for the time lost in consequence of confinement to the house, or in consequence of his disability to labor from the injury sustained." The defendant's counsel excepted to this portion of the charge, assign- ing as a reason or ground of the exception, that there was no proof in the case of the value of such time. The answer made on behalf of the plaintiff is a criticism on the form of the exception. It is said that " as the defendant's counsel did not ask the court to instruct the jury that there was no evidence of the value of plaintiff's time the only question here raised is whether the proposition charged is law." It was not necessary to make that request. The court had charged, in a case where no value of lost time had been shown, and no facts on which an estimate of such value could be founded, that compensation for such lost time could be awarded by the jury. The exception was aimed at that precise proposition, and the ground upon which it was claimed to be erroneous was definitely pointed out. The charge, therefore, can only be defended upon two grounds : either, that e^adence of the value of the lost time was given, or, if not, that the jury were at liberty to guess at and speculate upon that value, and estimate it as they pleased. The fii*st gi'ound we have showm to be untenable, and the exception consequently requires us to determine the second. In very numerous actions for negligence, both those where death had resulted and which were prosecuted under the statute, and those for injuries not resulting in death, e\ddence showing the occupation or business of the injured party and tending to establish his earning power has been held com- petent and material. (Grant r. City of Brookl^Ti, 41 Barb. 384; Master- ton V. Village of Mount Vernon, 58 N. Y. 391 ; Beisiegel v. N. Y. Central R. R. Co., 40 id. 10.) -And that is so because the element of damages which consists of lost time is purely a pecuniary loss or injury, and for such only fair and just compensation must be given, and the jury have no arbitrary discretion, but must bf governed by the weight of evi- dence. (Mclntyre v. N. Y. Central R. R. Co., 37 N. Y. 289.) The rule of recovery is compensation. Where the loss is pecuniary and is present and actual and can be measured, but no evidence is given show- ing its extent, or from which it can be inferred, the jury can allow nom- inal damages only. (Sedgwdck on Damages, c. 2, p. 47; Brantingham v. Fay, 1 Johns. Cas. 264; N. Y. Dry Dock Co. v. Mcintosh, 5 Hill, 290.) In the present case the jury knew simply that time was lost by reason of incapacity to labor. They were bound to consider it of some value, but could not go beyond nominal damages, and give compensation for it upon an arbitrary standard of their own. This they were per- mitted to do. Without proof of the extent or character of the plain- tiff's pecuniary loss, they were left to fix it as they pleased. Among the elements of damage in cases of injury for negligence, is the cost of SECT. III.] BRADFORD V. CUNARD STEAMSHIP CO. 725 the cure, the bills and expenses of medical attendance. Suppose that the bare fact was shown that the deceased had a doctor, but the length of his attendance was not given, the amount of his charges not shown, would it do to permit the jury to give compensation for the cost of the cure upon their own guess or speculation as to its amount? For pain and suffering, or injuries to the feelings, there can be no measure of compensation, saAC the arbitrary judgment of a jury. But that is a rule of necessity. Where actual pecu2iiary damages are sought, some evidence must be given showing their existence and extent. If that is not done the jury cannot indulge in an arbitrary estimate of their own. The judgment should be reversed, a new trial granted, costs to abide the event. Judgment reversed. BRADFORD v. CUNARD STEAMSHIP COMPANY. Supreme Judicial Court of Massachusetts, 1888. [Reported 147 Mass. 55.] Contract to recover for damage to six cases of woollen dress goods M'hile being carried in the defendant's steamship Samaria. Trial in the Superior Court, without a jury, before Pitman, J., who reported the case for the determination of this court, in substance as follows. The defendant did not deny its liability to the plaintiffs for such damages as they might prove by competent evidence. An auditor, to whom the case was referred, and whose findings of fact, it was agreed, should be final, reported the following facts. The invoice value of the goods, to which the plaintiffs' claim was limited by the bill of lading, was $3,510.11. The goods were more or ' less damaged by salt water and soda ash, all the goods in tliree of the cases being injured, and a varying proportion of them in the other tlu'ee cases. The goods were insured against sea perils by an insurance company, which settled the plaintiffs' claim for damages immediately after the arrival of the goods by the payment of $1,533.55, as for a partial loss. At the time of this settlement the plaintiffs made a verbal agreement with the company to aid it in recovering against the defendant, and the action was brought in the plaintiffs' name for its benefit. The damaged goods were subsequently sold by the plaintiffs, who did not preserve any evidence which might bear upon the question of damages. The auditor admitted in evidence, against the objection of the de- fendant, a written report to the insurance company by an appraiser, since deceased, who had been in its employ for the survey and appraise- ment of losses for about eleven years, and who was ordered by the 726 BR.VDFORD V. CUXARD STEAMSHIP CO. [CIIAP. YI. compan}' to survej'^ and estimate the damage to the plaintiffs' goods. The report was made in the regular course of his employment, and purported to estimate the percentage of damage to the invoice value of the injured goods. It was made \)y liim after a personal examination of the goods, and was accepted as correct by the insurance company, M'hich at once paid the plaintiffs in settlement $1,533.55. The auditor, relying upon the appraiser's report alone, found and reported that the plaintiffs were entitled to recover the sum of $1,345.45, -with, interest from the date of the WTit. The defendant requested the judge to rule that the appraiser's re- port was inadmissible in evidence, and that there was in the auditor's report no admissible evidence of the amount of damage, and that the plaintiffs could recover only nominal damages. The judge ruled that the appraiser's report was inadmissible; that there was, however, in the facts reported by the auditor, evidence sufficient to authorize a finding of substantial damages, and found for the plaintiffs in the sum of $500. If there was admissible evidence in the facts reported by the auditor sufficient to support the finding, and the ruling excluding the appraiser's report was right, then judgment was to be entered for the plaintiffs upon the finding for $500, with interest ; if the judge erred in excluding the appraiser's report, then judgment was to be entered on the auditor's report; if the judge was correct in the ruling excluding the appraiser's report, and erred in ruling that there was evidence sufficient to support a finding of damage to the amount of $500, then the verdict was to be set aside, and judgment was to be entered for the plaintiffs for the sum of one dollar. Holmes, J. 1. If the plaintiffs had no better e\adence of the amount of damage suffered by their goods than the" report of an ap- praiser who settled the sum to be paid by the insurers, the want of it was due, not to the nature and necessities of the case, but to their own neglect. The report would not have been admissible if the ap- praiser had been alive, and could have been called as a witness. Kafer V. Harlow, 5 Allen, 348. Adams v. Wheeler, 97 Mass. 67. Leighton i'. Brown, 98 Mass. 515. In our opinion, the fact that he was dead did not make it so. Assuming for the purposes of the case that the report was in other respects within the exception to the rule against hearsay, and that it would have been admissible to prove that the appraiser did estimate the damage, if that fact had been material, (Kennedy v. Doyle, 10 Allen, 161; Polini v. Gray, 12 Ch. D. 411,) or even to prove what his estimate was, his estimate, however proved, was not admissible to show the amount of damage. No doubt the actual amount of damage expressed in dollars is theo- retically certain, and is a fact. But it is a fact which neither can be observed directly by the senses, "when the only question is of the honesty of the observer who makes the entry, nor can be deduced SECT. III.] RICE V. RICE. 727 from the facts directly observed by simple mathematical computation, without assuming other facts not the subject of direct observation." Walker v. Curtis, 116 Mass. 98. What a particular man will think the amount of damage may differ widely from the actual amount, and, as experience shows, is likely to differ from the opinion of others, be- cause it will depend not only upon what he sees, but upon a number of other facts which he arrives at by inexact and undisclosed methods. An opinion upon such a question, however honestly formed and by however competent a man, is too remote from the indisputable data of the senses to be admitted without being subjected to cross-examina- tion. See Wright v. Tatham, 4 Bmg. N. C. 489, 508, 528; Abel v. Fitch, 20 Conn. 90, 96. 2. The goods were dress goods. It appears that all the contents of three cases, worth not less than sixteen hundred dollars, and varying proportions of them in three other cases, were damaged by salt water and soda ash. We cannot say that a jury would not be warranted in finding, as a matter of common experience, that damage of such a nature to such goods could not be less than five hundred dollars, or somewhat under a third of the value of those goods which were all soaked with the alkali. Judgment for the plaintiffs for five hundred dollars. RICE V. RICE. Supreme Court of Michigan, 1895. [Reported 104 Mich. 371.] Grant, J. Plaintiff recovered verdict and judgment against the defendant, her father-in-law, for the alienation of her husband's affections. . . . The defendant requested the court to instruct the jury that there was no testimony entitling the plaintiff to recover more than nominal damages, and that there were no facts upon which they could deter- mine what, if any, loss she had sustained, either of the society, assist- ance, or support of her husband. This request, as a whole, was prop- erly refused, because it left out entirely the damages resulting from mental anguish, mortification, and injured feelings. In those actions where damages may be awarded for these and for loss of society, the amount of damages lies in the sound discretion of the jury. They are not capable of accurate measurement, and it is not necessary to in- troduce anv evidence of value. When the iurv have before them the social standing and character of the parties, and the circumstances surrounding the wrong done, they have all that is proper and neces- sary upon which to find a verdict. Had the defendant requested the BROWN V. ^YHITE. Supreme Court of Pennsylvania, 19d2. [Reported 202 Pa. 297.] Trespass to recover damages for personal injuries. Mestrezat, J. . . . The ninth and fifteenth assignments allege error by the court in holding that the plaintiff was entitled to recover damages for expenses incurred for medical ser^^ces rendered by her physicians. There was no evidence 5ho^^^ng the amount of money ex- pended for these ser^'ices, nor what the ser\ices were reasonably' worth. The learned trial judge, however, held that in estimating the damages the jury should allow for the direct expenses incurred by the plaintiff by reason of the injury, and instructed the jury that "the mere fact that it does not appear from the evidence that she has not paid her medical aid will not prevent her from recovering in this case for what would reasonably compensate her physicians." It is quite true as the learned judge suggests, that the fact that the plaintiff had not paid her physician would not prevent her recovering the \alue of his services. But that is not the question. In the absence of any evidence of the value of such services or of what they are reasonably worth, was the plaintiff entitled to recover anything on account thereof? It seems to us rather singular that when the physicians who rendered these serv- ices were on the witness stand and detailed the character and extent of their ser\ices, they were not interrogated as to their value. It is contended by the learned counsel for the plaintiff that in the light of I 728 BRO"V\'N I'. WHITE. [CHAP. VI. court to instruct the jury that there was no evidence upon which they could find a verdict for loss of support and maintenance, it would have been error to refuse it, because there was no evidence of the \alue of such support. The sole e^•idence was the fact that they lived together ^ for six months in a house owned by defendant. The court instructed ' them that she was entitled to recover for mental anguish and suffer- ing, mortification and embarrassment, for the loss of her husband's ' society, and for the loss of his support and maintenance. It is true that the court said to them that " all these elements of damage, except the loss of support and maintenance, are such tliat it is not possible to figure them out on any mathematical basis;" but he did not in- struct them that there was no basis afforded by the e\ddence upon which they could determine the damages resulting from loss of sup- port and maintenance. The verdict ($3,000) was large, considering the condition of the parties, and we cannot say that the jury did not consider and allow for the loss of support. The judgment mtist he set aside, and a new trial ordered. SECT. III.] GREGORY V. OAKLAND MOTOR CAR CO. 729 their testimony "the average jury from their own experience could estimate with considerable accuracy what would be reasonable com- pensation." We cannot assent to this proposition. On the contrary the average juryman is not a professional man, and is not presumed to know the value of such services. What would have been reasonable compensation for the medical services rendered the plaintiff might have been shown by the physicians who attended her or })y others who were acquainted with the value of similar services in the community in which they were rendered. It was incumbent on the plaintiff before she could recover from the defendant compensation for medical aid to furnish the jury evidence from which they could determine what had been paid for such services or such amounts as the services were reasonably worth. Failing in this, there was no basis on which the jury could estimate or intelligently determine this element of the plaintiff's damages. A verdict should be supported by legal evidence, otherwise it is the result of the whim, caprice or guess of the jury. This is not permissible under our jury system. It follows that the ninth and fifteenth assignments of error must be sustained. The judgment is reversed and a venire facias de novo is awarded. GREGORY V. OAKLAND MOTOR CAR COMPANY. SuPKEME Court of Michigan, 1914. [Reported 181 Mich. 101.] Stone, J. This is an action of trespass on the case to recover damages against the defendant for injuries to plaintiff's horse and buggy, also for expenses incurred by him for medical attendance upon, and for loss of the services, comfort, fellowship, and society of his wife, by reason of the negligence of an employee of the defendant. . . . It is the further contention of appellant that, there being no e\n- dence as to the value of the services of plaintiff's wafe, it was error for the court to allow the jury to fix damages for loss of the wife's services according to their "good judgment and common sense." There was no motion for a new trial, and there does not seem to be any specific claim on the part of appellant that the damages were ex- cessive. But counsel claim there was no basis for the verdict of the jury, in so far as the value of the loss of the services is concerned. Counsel for appellant have called our attention to Nelson v. Rail- way Co., 104 Mich. 582 (62 N. W. 993). There the husband brought a suit under the "Death Act" to recover damages for the negligent killing of his wife. We do not think that this and kindred cases are controlling of the question here, for in those statutory actions the 730 GREGORY V. OAKLAND MOTOR CAR CO. [CHAP. VI. damages recoverable are the pecuniary loss only, and nothing for loss of companionship and society. It has been held in other States that, in cases like the instant case, there need not be evidence of the value or amount of the pecuniary loss. In Denver, etc., Tramway Co. v. Riley, 14 Colo. App. 132 (59 Pac. 476), the court of appeals of Colorado discussed this question, and there said : "There is some discussion of the question of the kind and amount of proof which is necessary, in a case like this, to enable a husband to recover for the loss of the services, companionship, and society of his wife. What these were worth in money was not shown, and, upon a little reflection, it is apparent that it could not be. The companion- ship and society of a wife are not articles of commerce. They cannot be weighed or measured; they are not bought and sold, and no expert is competent to testify' to their value. The consideration upon which they are bestowed is not pecuniary. Yet the husband is entitled to compensation in money for their loss, and the amount of that com- pensation is to be determined by the jury, not from evidence of value, but from their own observation, experience, and knowledge, con- scientiously applied to the facts and circumstances of the case. So also in relation to the ser\nces of the wife. The wdfe does not occupy the position of a servant, and her ser\'ices to her husband are not those of a servant. She makes his home cheerful and inviting, and ministers to his happiness in a multitude of ways outside of the drudgery of household labor. All the work of the house may be done by hired employees, and her services still give character to the home. They are not rendered in accordance with set rules; they are not repeated in regular order from day to day. They have their source in the thoughtfulness of the wife, and her regard for her husband, and no witness is qualified to define them, or reduce them to a list, or say what they are worth. So that their value must also be estimated by the jury. Furnish v. Railway Co., 102 Mo. 669 (15 S. W. 315, 22 Am. St. Rep. 800); Metropolitan, etc., R. Co. v. Johnson, 91 Ga. 466 (18 S. E. 816)." In Metropolitan, etc., R. Co. v. Johnson, supra, the supreme court of Georgia, upon this subject, said : " When the loss of a wife's services, resulting from a personal injury to her, is to be compensated for, she is not to be treated as an ordinary serAant or as a mere hireling. Cooley on Torts (2d ed.), p. 266; Pennsylvania R. Co. v. Goodman, 62 Pa. 329. She sustains to her husband and his household a relation special and peculiar. Her place cannot be supplied; no other is capable of filling it. Some wives per- form manual lal)or — others do not; yet the husbands of the latter no less than those of the former would certainly be entitled to compensa- tion from wrongdoers for causing inability to perform service. The actual facts and circumstances of each case should guide the jur\- in SECT. III.] MASTERTOK V. MOUNT VERNOX. 731 estimating for themselves, in the hght of their owti observation and experience and to the satisfaction of their o^ti consciences, the amount which would fairly and justly compensate the plaintiff for his loss. Certainly some elements of loss, such as manual labor, would be sub- ject to estimation by witnesses ; and, if evidence of this kind were pro- duced, of course the jury should consider it together with the other facts. But what we hold distinctly is that there need be no direct or express evidence of the value of the wife's ser\'ices, either by the day, week, month, or any other period of time, or of any aggregate sum." The rule is stated in 13 Cyc. p. 215, n. 22, as follows: "There is no need of direct or express e\ddence of the value of a wife's services, either by the day, week, or any other stated period, in order to entitle the husband to recover for the loss thereof, as the rela- tion which she sustains to him is a special and peculiar one, and the actual facts and circumstances of each case should guide the jury in estimating for themselves, in the light of their owti observation and experience, and to the satisfaction of their own consciences, the amoimt which would fairly and justly compensate the husband for his loss" — citing Kelley v. Mayberry TowTiship, 154 Pa. 440 (26 Atl. 595) ; Gaines- ville, etc., R. Co. r.'Lacy, 86 Tex. 244 (24 S. W. 269). See, also, Black V. Raih-oad Co., 146 Mich. 568 (109 N. W. 1052). This last-cited case deals w^th the rule in actions for damages in- vohang the death of a minor child. As was said in Furnish r. Railway Co., supra, referring to the fact that no evidence was offered of the value of the services : "To this it may be said that the nature of the subject does not admit of direct proof of value and that, when the fact of loss of society is established by testimony, the assessment of reasonable compensa- tion therefor must necessarily be committed to the sound discretion and judgment of the triers of fact." Similar language was used by the court in Kelley r. Mayberry Town- ship, supra. We are of opinion it cannot be said in the instant case that there was no basis upon which to find a verdict for damages ; nor can we say on this record that the damages were excessive. The judgment of the circuit court is affirmed. MASTERTON v. MOUNT VERNON. Court of Appeals, New York, 1874. [Reported 58 N. Y. 391.] Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff entered upon a verdict. i 1 732 MASTERTON V. MOUNT VERNON. [CHAP. VI. This action was brought to recover damages for injuries received by plaintiff by being thrown from his wagon in one of the streets of the ^'illage of INTount Vernon called Fourth avenue. The accident was occasioned by the wagon sinking into a ditch or excavation made by the owners of lots upon said street, with the consent of defendant's trustees, for the purpose of connecting their lots with a sewer in the street, and which excavation had been imperfectly filled. The further facts appear sufficiently in the opinion. Grover, J. ... I also think the Judge erred in overruling the defendant's objection to the following question: About what had been your profits, year by year, in that business? The plaintiff had testified that he wa6 engaged in the tea importing and jobbing business, buying and selling teas, and had been for a gi'eat number of yeare. That he had a partner who attended to the sales, while he made the purchases. That in purchasing teas a high degree of skill was necessary, which the plaintiff' possessed. That the business was extensive. That in con- sequence of the injury the plaintiff could not purchase teas, and there was a great falling off in the business of the firm. In Lincoln v. Sara- toga and S. Railroad Co. (23 Wend. 425) it was held, in an analogous case, that the plaintiff might prove that he was engaged in the dry goods business, and its extent, but there was no attempt to prove the past profits of the business, with a view to show what the future would be. Where, in such a case, the plaintiff has received a fixed compensa- tion for his services, or his earnings can be sho^\Tl with reasonable certainty, the proof is competent. (McIntATe r. N. Y. C. R. R. Co., 37 N. Y. 287; Grant v. The City of Brooklyn, 41 Barb. 381.) In Nebraska City v. Campbell, (2 Black, 590) it was held that proof that the plaintiff was a physician, and the extent of his practice, was com- petent. Wade V. Leroy (20 How. [U. S.] 34) held the same. In none of these cases is any intimation given that proof may be given as to the uncertain future profits of commercial business, or that the amount of past profits derived therefrom may be shown, to enable the jury to conjecture what the future might probably be. These profits depend upon too many contingencies, and are altogether too uncertain to furnish any safe guide in fixing the amount of damages. In Walker v. The Erie R. R. Co. (63 Barb. 260) it was held that proof of the amount of income derived by the plaintiff' for the year preceding the injury, from the practice of his profession as a lawyer, was competent. This goes beyond the rule adopted in any of the other cases, and it certainly ought not to be further extended. Whether proof of the income de- ri\ed b;\' a lawj^er from the past practice of his profession is competent n for the purpose of authorizing the jm-y to draw an inference as to the extent of the loss sustained by inability to personally attend to business, may, I think, well be doubted. Tliere is no such uniformity in the amount in different years, as a general rule, as to make such inference reliable. But the profits of importing and selling teas are still more SECT. III.] BRIGHAM V. CARLISLE. 733 uncertain. In some years they may be large, and in others attended with loss. The plaintiff had the right to prove the business in which he was engaged, its extent, and the particular part transacted by him, and, if he could, the compensation usually paid to persons doing such business for others. These are circumstances the jury have a right to consider in fixing the value of his time. But they ought not to be permitted to speculate as to the uncertain profits of commercial ventures, in which the plaintiff, if uninjured, would have been engaged. The judgment appealed from should be reversed, and a new trial ordered, costs to abide the event. All concur. Andrews, J., concurs on second ground; Folger, J., in result. Judgment reversed. BRIGHAJM V. CARLISLE. Supreme Court of Alabama, 1884. , [Reported 78 Ala. 243.] Clopton, J. . . . The material question is the rrieasure of damages. The primary purpose of awarding damages is, actual compensation to the party injured, whether by a tort, or by breach of a contract; though there are exceptional cases, in which exemplary or punitive damages are allowed. Owing to the ever-occurring differences in the circumstances, and in the special conditions of the contracting parties, it has been found difficult, if not impossible, to lay down general and definite rules as to the measure of damages, applicable to all cases of a class. From a misconstruction of expressions of eminent jurists, not sufficiently guarded for general use, but adapted to the case in hand, the applications of rules, commonly recognized, have been as various as the cases. The proposition, that all damages are recover- able which are in the contemplation of the parties, is not strictly cor- rect. The primary rules are, the damages must be the natural and proximate results of the wrong complained of, and must not be merely speculative, or conjectural. These must concur, though founded on different principles, and are distinct and independent of each other. The law presumes that a party foresees the natural and proximate results of a breach of his contract or tort, and hence these are pre- sumed to be in his legal contemplation. F'or such damages, as a general rule, the party at fault is liable. But there are damages, which are in the contemplation of the par- ties at the time of making the contract, and are the natural and proxi- mate results of its breach, which are not recoverable. The parties 734 BRIGHAM V. CARLISLE. [CHAP. VI. must necessarily contemplate the loss of profits as the direct and neces- sary consequence of the breach of a contract, and yet all profits are not within the scope of recoverable damages. There are numerous cases, however, in which profits constitute, not only an element, but the measure of damage. While the line of demarcation is often dim and shadowy, the distinctive features consist in the nature and char- acter of the profits. When they form an elemental constituent of the contract, their loss the natural result of its breach, and the amount can be estimated with reasonable certaint}', such certainty as satisfies the mind of a prudent and impartial person, they are allowed. The requisite to their allowance is some standard, as regular market values, or other established data, by reference to which the amount may be satisfactorily ascertained. Illustrations of profits recoverable are found in cases of sales of personal property at a fixed price, evictions of tenants by landlords, articles of partnership, and many commercial contracts. On the other hand, "mere speculative profits, such as might be conjectured would be the probable result of an adventure, defeated by the breach of a contract, the gains from which are entirely conjectural, and with respect to which no means exist of ascertaining even approxi- mately the probable results, can not, under any circumstances, be brought within the range of recoverable damages." — 1 Suth. on Dam. 141. Profits speculative, conjectural or remote, are not, generally, regarded as an element in estimating the damages. In Pollock v. Gantt, 69 Ala. 373, it is said : " What are termed speculative damages — that is possible, or even probable gains, that it is claimed would have been realized, but for the tortious act or breach of contract charged against a defendant — are too remote, and can not be recovered." The same rule has been repeatedly asserted by this court. — Culver v. Hill, 68 Ala. 66; Higgins v. Mansfield, 62 Ala. 267; Burton v. Holley, 29 Ala. 318; White v. Miller, 71 N. Y. 118; French v. Ramge, 2 Neb. 254; 2 Smith's Lead. Cases, 574; Olmstead v. Burke, 25 111. 86. The two following cases may serve to illustrate the difference between profits recoverable and not recoverable. In J^tna Life Ins. Co. v. Noxson, 84 Ind. 347, an insurance agent, who had been discharged without cause before the expiration of his contract, was allowed to include in his recovery the probable value of renewals on policies pre- viously obtained by him, upon which future premiums would, in the usual course of business, be received by the company, on the ground, that the amount of compensation, due on such renewals, can be ascer- tained with requisite certainty by the use of actuary's life-tables and comparisons, and that the basis of the right to damages existed, and was not to be built in the future. In Lewis v. Atlas Mu. Ins. Co., 61 Mq. 534, wiiich is cited with approval in the other case, the same rule as to the probable value of renewals w^as held, but it was also held, that an estimate of the probable earnings of the agent thereafter, de- SECT. III.] BRIGHAJVI V. CARLISLE. 735 rived from proof of the amount of his collections and commissions before the breach of the contract, in the absence of other proof, is too speculative to be admissible. Profits are not excluded from recovery, because they are profits; but, when excluded, it is on the ground that there are no criteria by which to estimate the amount with the certainty on which the ad- judications of courts, and the findings of juries should be based. The amount is not susceptible of proof. In 3 Suth. on Dam. 157, the author discriminatingly observes: "When it is advisedly said, that profits are uncertain and speculative, and can not be recovered, when there is an alleged loss of them, it is not meant that profits are not re- coverable merely because they are such, nor because profits are neces- sarily speculative, contingent, and too uncertain to be proved; but they are rejected when they are so; and it is probable that the inquiry for them has been generally proposed when it must end in fruitless imcertainty; and therefore, it is more a general truth than a general principle, that a loss of profits is no ground on which damages can be given." When not allowed because speculative, contingent and un- certain, their exclusion is founded, by some on the ground of remote- ness, and by others, on the presumption that they are not in the legal contemplation of the parties. The plaintiff, by the contract, undertook the business of travelling salesman for the defendants. The amount of his commissions de- pended, not merely on the number and amounts of sales he might make, but also on the proportional quantity of the two classes of goods sold, his commissions being different on each. The number and amounts of sales depended on many contingencies — the state of trade, the demand for such goods, their suitableness to the different markets, the fluctuations of business, the skill, energy and industry with which he prosecuted the business, the time employed in effect- ing different sales, and upon the acceptance of his sales by the defend- ants. There are no criteria, no established data, by reference to which the profits are capable of any estimate. They are purely speculative and conjectural. Besides, the evidence is the mere opinion and con- jecture of the plaintiff, without giving any facts on which it was based. The bare statement, uncorroborated by any facts, and without a basis, that "the reasonable sales would have been fifteen thousand dollars, and that the net profits on that amount of sales would have been four hundred and fifty dollars," is too conjectural to be admissible. — Washbxirn v. Hubbard, 10 Lans. 11. Reversed and remanded. 736 HICHHORN MACK & CO. V. BR.U)LEY. [CILA.P. VI. HICHHORN MACK & CO. v. BRADLEY. Supreme Court of Iowa, 1902. [Reported 117 la. 130.] McClain, -T. It is alleged in defendant's counterclaim, and there is evidence tending to show, that in January, 1897, defendant made an oral contract with one Glaspell, acting as plaintiffs' agent, by which defendant acquired from plaintiffs the exclusive right to sell in certain territory in Iowa a brand of cigars known as the "Tom Moore," manu- factured by plaintiffs. In this contract it was contemplated and un- derstood that defendant was to incur expense in introducing the cigar to the trade within the territory given to him, and it was agreed, that plaintiffs should furnish such cigars of this brand as defendant should order as long as defendant continued to render the best service in his power in pushing the sale of said cigars. About July 1, 1898, plaintiffs refused to longer furnish cigars to defendant; and defendant was un- able, therefore, to make further sales thereof to his customers, although he had, by introducing the cigar to the trade, at some expense, built up a demand for them. . . . The chief contention, however, of counsel for appellants, is that the damages which defendant attempted to show were too remote and speculative to be considered. Evidence was admitted, over plaintiffs' objection, showing the number of Tom Moore cigars sold by defendant in his territory up to the time when plaintiffs refused to furnish him any more cigars under the contract, and the number of the same kind of cigars sold in the same territory by the jobber to whom the territory was given by plaintiffs after the contract with defendant was revoked. It may be of assistance in considering this evidence to say here that defendant, by his pleadings, limited his right to recover to the damages accrued up to the time of trial, and also that the sales in this territory subsequent to the revocation of defendant's contract were proven by the testimony of a witness who had been a traveling salesman for de- fendant in the sale of the cigars under the contract, and who, after its revocation, became salesman for the jobber who acquired from plain- tiffs the right to sell the cigar in the same territory. The court in- structed that, if the jurors found defendant to be entitled to recover damages under his counterclaim, then, in arriving at the amount of damage, they should consider the evndence above referred to, in con- nection with all evidence relating to the price at which the cigars were to have been furnished to defendant under the contract, and the price at which they were to be resold, and of evidence as to what it would cost defendant to have handled and sold said cigars in said territory, and, from all the evidence relating to these matters, determined how SECT. III.] HICHHORX MACK & CO. r. BR.\DLEY. 737 much, if anything, said defendant had been damaged by the breach of the contract. The jurors were also told that, m ascertaining the amount of damage, they should determine as nearly as possible the quantity of cigars defendant would have sold in said territory up to that time, and the profits which would have accrued from such sale, and that, in determining the quantity of cigars which defendant would have sold, they might consider the numl)er sold prior to the breach of the con- tract, the state and condition of the trade, the number of towns in the territory, and the demands of the trade in said territory for the Tom Moore brand of cigars. And the court refused to direct the jurors, as requested by plaintiffs, that they should not take into account or include in their verdict any sums for profits upon cigars which de- fendant might have sold, if his right to sell the same had not been taken from him, or any other future speculative profits. There is, perhaps, no more perplexing question in the law than that relating to the measure of damages for breach of contract invohoBg contemplated profits to be derived from the performance of the contract. Here we are not concerned with the question which sometimes arises, whether profits are within the contemplation of the parties, according to the rule of Hadley v. Baxendale, 9 Exch. 341, which has been frequently cited, and has been approved by this, court in Mihills IVIanufacturing Co. V. Day, 50 Iowa, 250, and other cases. It is perfectly clear in this case that the profits to be derived from the sale of these cigars consti- tuted the only consideration to the defendant for entering into the contract, and that the loss of such profits was in the contemplation of the parties at the time the contract was made as a direct consequence which would result from its breach. And it is well settled that when the loss of future profits is thus in the contemplation of the parties, and does directly result from the breach of the contract, the amount of profits thus lost may be recovered. In Trigg v. Clay, 88 Va. 320, 335 (13 S. E. Rep. 434, 435^ 29. Am. St. Rep. 723), this pertinent language is used, which we think is a correct exposition of the law: "It has often been held that profits which are the direct and imme- diate fruits of the contract are recoverable. There are many cases in which the profit to be made l)y the bargain is the only thing purchased, and in such cases the amount of such profit is strictly the measure of damages. Wood's Mayne, Damages p. 82. It has been held that, when the defendant refused to allow the contracts to V)e executed, the jury should allow the plaintiffs as much as the contract would have benefited them. Profits or advantages which are the direct and im- mediate fruits of the contract entered into between the parties are part and parcel of the contract itself, entering into and constituting a por- tion of its very elements, — something stipulated for, and the right to the enjoyment of which is just as clear and plain as to the fulfill- ment of any other stipulation. They are presumed to have been taken into consideration and deliberated upon before the contract was made. 738 HICHHORN MACK & CO. V. BRADLEY. [CHAP. VT. and formed, perhaps, the only inducement to the arrangement." " Profits are not excluded from recovery because they are profits, but, when excluded, it is on the ground that there are no criteria by which to estimate the amount with the certainty on which the adjudications of courts and the findings of juries should be based." Brigham v. Carlisle, 78 Ala. 243 (56 Am. Rep. 28). And in this case the court quotes with approval the following language found in 3 Sutherland, Damages, 157: "When it is advisedly said that profits are uncertain and speculative, and cannot be recovered when there is an alleged loss of them, it is not meant that profits are not recoverable merely because they are such, nor because they are necessarily speculative, contingent, and too uncertain to be proved, but they are rejected when they are so, and it is probable that the inquiry for them has been generally proposed when it must end in fruitless uncertainty; and therefore it is more a general truth than a general principle that a loss of profits is no ground on which damages can be given." The distinction between an erroneous rule of law, sometimes assumed, that prospective profits are not to be considered in measuring damages for breach of contract, and the correct proposition, that remote and speculative profits can- not be shown, for the reason that no sufficient evidence thereof is attainable, is thus stated in U. S. v. Behan, 110 U. S. 338, 344 (4 Sup. Ct. Rep. 81, 83, 28 L. Ed. 168) : "The prima facie measure of damages for the breach of a contract is the amount of the loss which the injured party has sustained thereby. If the breach consists in preventing the performance of the contract, without the fault of the other party, who is willing to perform it, the loss of the latter will consist of two distinct items or grounds of damage, namely: First, what he has already ex- pended towards performance, less the value of materials on hand; secondly, the profits that he would realize by performing the whole contract. The second item — profits — cannot always be recovered. They may be too remote and speculative in their character, and there- fore incapable of that clear and direct prooi which the law requires. But when, in the language of Chief Justice Nelson in the case of Mas- terton v. Mayor, etc., 7 Hill, 69 (42 Am. Dec. 38), they are the 'direct and immediate fruits of the contract ' they are free from this objection. They are then ' part and parcel of the contract itself, entering into and constituting a portion of its very elements, — something stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfillment of any other stipulation.' Still, in order to furnish a ground of recovery in damages, they must be proved. If not proved, or if they are of such a remote and speculative character that they cannot be legally proved, the party is confined to his loss of actual outlay and expense." And see Howard v. Manufacturing Co., 139 U. S.^99 (11 Supt. Ct. Rep. 500, 35 L. Ed. 147); Anvil Mining Co. v. Humble, 153 U. S. 540 (14 Sup. Ct. Rep. 876, 38 L. Ed. 814). That the profit or advantage which a party expected to derive from the I SECT. III.] HICHHORX MACK & CO. V. BRADLEY. 739 performance of the contract may be so speculative and uncertain as not to be capable of proof as the basis for the recovery of damages, is well settled. Bank v. Thurman, 69 Iowa, 693; Bernstein v. Meech, 130 N. Y. 354 (29 N. E. Rep. 255). And on the principle that specula- tive profits are not deemed to have been wnthin the contemplation of the parties, where there is some other more substantial basis on which to reckon the damages for breach of contract, it has been generally held that where the contract was as to the completion of a building or boat, or for the use of land or machinery, or the like, the rental value of the use of which the party was deprived should be taken as the measure of his damage, and that he could not substitute therefor or include therein profits which he might have made in such use. Griffin V. Colver, 16 N. Y. 489 (69 Am. Dec. 718); Alexander v. Bishop, 59 Iowa, 572; Novelty Iron Works v. Capital City Oatmeal Co., 88 Iowa, 524; Aber v. Bratton, 60 Mich. 357 (27 N. W. Rep. 564); City of Chicago V. Huenerbein, 85 111. 594 (28 Am. Rep. 626) ; Wright v. Mul- vaney, 78 Wis. 89 (46 N. W. Rep. 1045, 9 L. R. A. 807, 23 Am. St. Rep. 393); Newark Coal Co. v. Upson, 40 Ohio St. 17; Howard v. Manufac- turing Co., 139 U. S. 199 (11 Sup. Ct. Rep. 500, 35 L. Ed. 147). So where an agent contracts to give his entire time to his employer for a compensation to be determined by commissions on sales of goods, his measure of damage for being thrown out of employment under the contract is the value of his time lost, and not the profits which he would have made; the value of his time being a more satisfactory measure than the uncertain and indefinite profits. Howe ^Machine Co. V. Bryson, 44 Iowa, 159; Wilson Sewing Mach. Co. v. Sloan, 50 Iowa, 367; Brigham r. Carlisle, 78 Ala. 243. These last three cases are especially relied on by appellant, but the present case is plainly distinguishable from them. In those cases there was a measure of damage which could be resorted to for the purpose of giving the in- jured party relief for breach of contract; and the court in each case thought that this measure was more satisfactory than that to be reached by considering the profits which might have been made by the complaining party, had he been allowed to perform his contract. If the question considered in Howe Machine Co. v. Bryson, supra, were now before us for the first time, we might, in view of the later authorities, incline to the view expressed in the dissenting opinion. As supporting that \'iew, see, in addition to cases already cited, ^^ells V. Association, 39 C. C. A. 476 (99 Fed. Rep. 222, 53 L. R. A. 33). But in the case before us there is no such measure of damage available as was found in the cases relied on by counsel for appellant. Defendant did not contract to give his entire services to plaintiff in the sale of cigars, nor were his entire earnings dependent on the profits to be made out of this contract. Here it is impossible to estimate his damage by the value of the time lost. Nor is it possible to measure his damage by the labor and expense involved in introducing plaintiffs' cigars to 740 IIICHHORX MACK & CO. V. BRADLEY. [chap. VI. the trade. To some extent, defendant has already been compensated for that labor and expense by the profits derived from the sale of plain- tiffs' cigars during the time of the continuance of defendants' agency; and it would be manifestly impossible to determine the proportion of the labor and expense for which he had received compensation, and the proportion for which he was dependent by way of compensation on the profits which should have been derived from future sales which, he was not allowed to make. It is well established by the decided pre- ponderance of authority that where future profits are in the contem- plation of the parties, and there is no other basis on which damages for breach of contract can be estimated, such profits may be made the basis for the recovery of damages. Dennis v. Maxfield, 10 Allen, 139; Dart V. Laimbeer, 107 N. Y. GG4 (14 N. E. Rep. 291); Treat v. Hiles, 81 Wis. 280 (.50 N. W. Rep. 896); Anvil Mining Co. v. Humble, 153 U. S. 540 (14 Sup. Ct. Rep. 876, 38 L. Ed. 814); Fairchild v. Rogers, 32 Minn. 269 (20 N. W. Rep. 191); Simpson v. Railway Co., 1 Q. B. Div. 274. And see Richmond v. Railroad Co. 33 Iowa, 422, and Rich- mond V. Railroad Co., 40 Iowa, 264, in which the right to recover prospective profits was, to some extent, recognized by this court. The right to recover prospecti\-e profits, and the admissibility of such evidence as was introduced in the case before us as bearing on the amount of such profits are fully sustained in Mueller v. Spring Co., -88 Mich. 390 (50 N. W. Rep. 319). In that case an agent who had been given the exclusive right in a certain territory for the sale of a certain kind of mineral water, of which defendant was the sole proprietor, brought action for breach of contract in wrongfully terminating his agency for the sale of such water and giving it to another party; and the court uses this language: "The measure of plaintiff's damages was the profits which Mueller might have realized if defendant had performed its contract. Loud v. Campbell, 26 Mich. 239; Leonard V. Beaudry, 68 Mich. 312 (36 N. W. Rep. 88). While it may be true that Mueller would not have disposed of as much of the article as this firm did, yet the amount of their sales, while not conclusive upon de- fendant, was competent evidence to go to the jury upon the question of plaintiff's damages. It would have been proper to draw out upon cross-examination what special effort had been made by this firm to introduce and push this commodity, but the sales for the season named may have been greater than for the previous season, because of a de- mand created by what Mueller did, rather than by any special effort by this firm. Here was a commodity of which defendant was the sole proprietor, and for which Mueller was made sole agent. All of this commodity reaching the territory named came from defendant directly to Mueller, and through his agency. The agency of the firm of Basset & L'Hommeflieu succeeded that of Mueller. They took it up where he left off, and continued it for the five months for which he was to enjoy its fruits. Proofs as to the amount actually sold by them for SECT. III.] HICIIHORN MACK & CO. V. BRADLEY. 741 that five months cannot be said to be speculative." In a somewhat similar case [Wakeman v. Manufacturing Co., 101 N. Y. 205 (4 N. E. Rep. 264, 54 Am. Rep. 676)], it is said that damages by way of pros- pective profits "are nearly always involved in some uncertainty and contingency. Usually they are to be worked out in the future, and they can be determined only approximately upon reasonable conjec- tures and probable estimates. They may be so uncertain, contingent, and imaginary as to be incapable of adequate proof, and then they cannot be recovered, because they cannot be proved. But when it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain. It is not true that loss of profits cannot be allowed as damages for a breach of contract. Losses sustained and gains prevented are proper elements of damage. Most contracts are entered into ^vith the ^•iew to future profits, and such profits are in the contemplation of the parties, and, so far as they can be properly pro\'ed, they may form the measure of damage. As they are prospective, they must, to some extent, be uncertain and problem- atical, and yet on that account a person complaining of breach of contract is not to be deprived of all remedy. It is usually his right to prove the nature of his contract,- the circumstances surrounding and following its breach, and the consequences naturally and plainly traceable to it; and then it is for the jury, under proper instructions as to the rules of damages, to determine the compensation to be awarded for the breach. When a contract is repudiated, the compensation of the party complaining of its repudiation should be the value of the contract." To the same effect, see Schumaker v. Heinemann, 99 Wis. 251 (74 N. W. Rep. 785). Although such a measure of damages may be unsatisfactory and uncertain, yet, if it is the most satisfactory and certain measure which is attainable, justice is not to be defeated be- cause a better measure is not at hand. "The administration of jus- tice frequently proceeds with reasonable certainty of accomplishing what is right, or as nearly right as human efforts may attain in the face of similar difficulties; and it does so by making the experience of mankind, or, rather, the judgment which is founded upon such ex- perience, the guide." Taylor v. Bradley, 39 N. Y. 129, 144 (100 Am. Dec. 415). It seems never to have been held in this state that, where there is no other measure of damage for breach of contract, a con- tracting party is to l)e denied any damages because no better measure than the reasonable prospective profits of a business is attainable. We think that it would be manifestly unjust to deny to the defendant in this case any recovery whatever for breach of his contract because the contract itself- contemplated and was based upon prospective 742 COMSTOCK V. CONNECTICUT RY. & LIGHTING CO. [CHAP. VI. profits. The evidence introduced did furnish as fair a basis for esti- mating such profits as could be furnished with reference to the breach of any such contract, and we think it was admissible, and that the court properly submitted it to the jury. Such a contract as we have before us was recognized as valid in Kaufman v. Manufacturing Co., 78 Iowa, 679, and Rosenberger v. Marsh, 108 Iowa, 47, although the question of measure of damages was not presented in those cases. Affirmed. COMSTOCK V. CONNECTICUT RAILWAY AND LIGHTING CO. Supreme Court of Connecticut, 1904. ' [Reported 77 Conn. 65.] Baldwin, J. In one of these actions, a husband sues for his owTi loss from injuries suffered by the wife: in the other both sue for her loss. In each action the complaint states that when injured she was keeping a fashionable city boarding-house; that her injuries prevented her from continuing to keep it; and that she has since not been able to do any work whatever, and has been at great expense for medical treatment. In the action by the husband, he alleges that when she was injured and for a long period before, she had supported him, but that he has since been deprived of such support and of her services, and will ))e for a long period to come. The finding shows these facts: The husband was out of health and unable to work, except in assisting in the conduct of the affairs of the family. The wife kept a boarding-house, as alleged. During the summer months she had from ten to sixteen boarders; during the rest of the year from two to five. It did not appear that this business was conducted upon her personal credit, or for the benefit of her separate estate. Her injuries compelled her to refuse to receive any boarders for six months, including the summer following the accident, and since then she has not taken as many boarders as before. The expense of necessary medical attendance was $150. It was agreed that damages for the loss of her earnings and services should be assessed in only one action. The judgment for $300 in favor of the liusband was for the $150 above mentioned, and for the loss of his wife's ser\'ices and society. The other judgment for $500 was for her injuries, pain and suffering. On the trial Mr. Comstock was asked how he had lived during the past year without the services of his wife and support from her. This question was properly excluded. An answer would not have tended to show that she had previously supported him; nor if she had, was it SECT. III.] COMSTOCK V. CONNECTICUT RY, & LIGHTING CO. 743 of any consequence in what manner he had since been able to subsist without her aid. The plaintiffs, when produced as witnesses in their own behalf, were severally asked whether the keeping of boarders had been profitable during the year previous to the injury; and it was proposed to follow this up by asking each to estimate the amount of such profits, and also the profits for the next succeeding year. No claim was made that ac- counts had been kept showing the items of cost and receipts, or that such items could be proved. The question was excluded, on the ground that such evidence was remote, speculative and immaterial. The complaint stated that she was the keeper of a fashionable boarding-house, and had long furnished her husband with support. This, after a default, fairly implied that his support came from her keeping the boarding-house, and that her services in that business were valuable to him. How valuable they were, and how great had been his loss, could best be ascertained by showing what the profits from it were, before the injury, and what they had been since. A loss of profits cannot be shown in proof of damage from a breach of contract, unless damage from that source should reasonably have been contemplated by the defendant, at the date of the contract, as a natural result of the breach. Lewis v. Hartford Dredging Co., 68 Conn. 221, 234. He who does a wrongful injury to the person of another is held to a stricter rule of liability. If the injury directly impairs the earning capacity of the latter, he can recover in an action of tort, under proper pleadings, the amount of his loss from such impairment, although by reason of his peculiar knowledge or ability it may be much greater than that which would have been suffered by an ordinary man, and although his possession of this peculiar knowledge or ability may have been unknown to the defendant when the wrong was dope. There are two modes of proving what is a man's earning capacity. His general qualities and his qualifications for any particular business in which he may be engaged may be described by those who know him, and under some circumstances they can give their opinion as to what sum represents the pecuniary value of his earning capacity for a certain period of time. Harmon v. Old Colony R. Co., 1G8 Mass. 377, 47 Northeastern Rep. 100; Matteson v. New York Central R. Co., 35 N. Y. 487, 493. The other mode is to show what his earnings in fact were during a certain period. If he was employed by another on a salary, or worked at a trade, to those engaged in which a fixed rate of wages was customarily paid, they are easily proved. Finken v. Elm City Brass Co., 73 Conn. 423, 425. If he was himself conducting a business, the net receipts from which were naturally due to his ability to conduct it successfully and can be ascertained uath reasonable certainty, the amount thus realized, while it may be more difficult to cipher it out with accuracy, is also a proper subject of evidence. The business of the keeper of an established and "fashionable" boarding- 744 COMSTOCK V. CONNECTICUT RY. & LIGHTING CO. [CHAP. VI. house is one of this kind. To prosecute it successfully requires special qualities. Whoever engages in it should have the gift of management; be a good buyer; know how to provide liberally and not lavishly; possess tact, prudence and discretion. Such assistance as it is necessary to have generally comes from those employed at fixed wages. There •is a fixed rate of charge against each of the boarders. Rent is a fixed item, unless the house is owned by the one who keeps it, in which case the annual value of its use can easily be shown. The net returns, or profits, of such a business are quite as readily ascertained as those arising from the practice of a profession ; and are equally a proper sub- ject of proof, in a case like this. They are to be considered simply as bearing on the earning capacity of the person conducting it, and only such can be shown as are susceptible of estimation with reasonable certainty. Wallace v. Pennsylvania R. Co., 195 Pa. St. 127, 45 Atl. Rep. 685, 52 L. R. A. 33; French v. Connecticut River Lumber Co., 145 Mass. 261, 14 Northeastern Rep. 113; Ehrgott v. Mayor, 96 N. Y. 264, 275. It was immaterial that no claim was made that itemized accounts of the costs and receipts of the business had been kept. This absence of books went simply to the weight of the evidence, and could not affect the right to ask for such an estimate of the profits realized as could be made without such aid. The force of the evidence as to the profits of Mrs. Comstock's busi- ness before her injury depended, so far as the claim for compensation for losses to be anticipated in the future was concerned, on comparing them with what they had been since her injury. The testimony which it was proposed to give as to the latter point would therefore have been admissible. Illinois Central R. Co. v. Davidson, 76 Fed. Rep. 517, 521, 22 C. C. A. 306. Under the agreement of the parties that all damages for loss of Mrs. Comstock's earnings and services should be assessed in only one action, the Superior Court assessed them in that brought by her husband. Of this no complaint is made by any of the parties, and it must therefore be treated as agreed that it was proper to do so. The error in exclud- ing the evidence to enhance them was therefore one by which he only was aggrieved. There is error in the judgment in the action brought by Stephen Comstock, and a new trial is ordered. There is no error in the judgment in the other action. In this opinion the other judges concurred. SECT. III.] ORBACH V. PARAMOUNT PICTURES CORPOR.\TION. 745 ORBACH V. PARAMOUNT PICTURES CORPORATION. SuPKEME Judicial Court of Massachusetts, 1919. [Reported 233 Mass. 281.] De Courcy, J. The plaintiff, who owned and operated the Owl Theatre in Lowell, seeks to recover damages from the defendant, a distributor of motion picture films, for breach of six wTitten contracts. Under these agreements the defendant, during the year beginning September 1, 1917, was to release a certain number of films or plays, in which designated well-known "stars" enacted the leading role; and to license the plaintiff to exhibit one copy of the films at his theatre for three successive days, at a specified price. The defendant now concedes that there was evidence which, if believed, warranted the jury in finding that the alleged ■contracts were executed and delivered. No films were actually furnished, the defendant contending at the trial that no contract was executed. This disposes of the first and second requests for rulings, dealing with the issue of liability. While admitting that the plaintiff is entitled to prevail, the de- fendant strongly urges that the evidence of loss sustained by the plain- tiff by reason of the breach of contract was too remote and speculative to sustain a verdict for more than nominal damages. The trial judge in instructing the jury as to the general rule applicable adopted the following language of this court in LowTie r. Castle, 225 IVIass. 37, 51 : "Prospective profits may be recovered in an appropriate action when the loss of them appears to have been the direct result of the wrong complained of and when they are capable of proof to a reason- able degree of certainty. They need not be susceptible of calculation -with mathematical exactness, pro\ ided there is a sufficient foundation for a rational conclusion. . . . But such damages cannot be recovered when they are remote, speculative, hypothetical, and not within the realm of reasonable certainty." There was evidence that at the time when the defendant repudiated its contracts and refused to furnish the films which it controlled, and which were of moving picture "stars" especially popular with theatrical patrons, it was too late for the plain- tiff to secure adequate substitutes for the coming theatrical year; and that as a natural result, and one prestunably within the contempla- tion of the parties, the audiences attracted to the Owl Theatre were diminished in number and the income correspondingly reduced. Speak- ing accurately, such loss would l)e the ordinary damage consequent on the defendant's failure to furnish the pictures as agreed, rather than a loss of "special profits." In proving the loss he sustained, the plaintiff offered evidence (1) of 746 ORBACH V. PARAMOUNT PICTURES CORPORATION. [cHAP. VI. the net profits of his theatre during the period involved, and (2) of wliat the net profits probably would have been during that period if the defendant had carried out its contracts. As to (1) he presented a detailed report of the gross receipts from September 1, 1917, until he sold out his theatre in March, 1918; and it could be found that he obtained all the income he reasonably could. The actual expenses during this period were $250 a week for film service, and $250 for other expenses. Plainly this was competent. As to (2), the expenses of running the theatre if the plaintiff had obtained the defendant's pic- tures would not differ from those actually incurred, except in the larger sum to be paid for films, — which item could readily be ascer- tained. The only uncertain element to be established was the probable additional income which would have accrued if the plaintiff had been allowed to exhibit the films specified in the contracts. On that issue he showed the gross receipts of his theatre, week by week, during the preceding year, as well as after September 1, 1917; thus indicating what his theatre, located and appointed as it was, could earn even with pictures of a grade inferior to Paramount films. Loughery xi. Huxford, 206 Mass. 324. Nelson Theatre Co. v. Nelson, 216 Mass. 30. Most significant was the evidence that the Merrimac Square Theatre, situated on a side street in the same city, while exhibiting these same Paramount pictures, and at the very time that the defendant had contracted to let the plaintiff have them, drew crowded houses and people were turned away. This theatre had a larger seating capacity than the Owl, and was subject to the same conditions as to competi- tion. There was also evidence that the patronage of a theatre depends on the particular "star" who is being exhibited, that the Paramount had the "finest stars," as compared with those of other companies, and that the contracts contemplated "first run" pictures, that is, pictures which never before had been exhibited in Lowell. Unlike cases such as Todd v. Keane, 167 Mass. 157, we cannot say as matter of law that the evidence afforded no satisfactory basis on which a jury Avould be warranted in finding more than nominal damages. We find no error in the refusal to give the defendant's requests numbered 17, 18 and 21. No exception was taken to the judge's charge. Weston v. B. & M. R. R., 190 Mass. 298. Gagnon v. Sperry & Hutchinson Co., 206 Mass. 547. Neal v. Jefferson, 212 Mass. 517. Nelson Theatre Co. V. Nelson, supra. Barry v. N. Y. Holding & Construction Co., 226 Mass. 14, . . . Exceptions overruled. I SECT. III.] WHITE V. MILLER, 747 WHITE V. MILLER. Court of Appeals, New York, 1877. [Reported 71 N. Y. 118.] This action was brought against defendants as "trustees of the mutual society called Shakers," located in the town of Watervliet, Albany County, to recover damages alleged to have been sustained by reason of a breach of warranty made upon sale of a quantity of cabbage seed. Andrews, J. . . . The referee, in fixing the damages, followed the rule laid down in Passinger v. Thorburn (34 N. Y. 634), which was also an action for a breach of warranty, in the sale of cabbage seed. The defendant in that case warranted the seed to be Bristol cabbage seed, and that it would produce Bristol cabbage. The court held, all the judges concurring, that the plaintiff was entitled to recover the difference in value between the crop raised from the defective seed, and a crop of Bristol cabbage, such as would ordinarily have been pro- duced in the year in which the seed was to be sown. The learned judge, who delivered the opinion, referred to a large number of au- thorities as sustaining the rule adopted by the court; and, among others, to the case of Randall v. Roper (E. B. & E. 84), in which it was held that in an action on a warranty, made by the defendants to the plaintiff, on a sale by the former to the latter of seed barley, that the seed sold was "chevalier" seed barley, but which was, in fact, barley of an inferior quality; the plaintiffs, who had resold the barley, with a similar warranty, could recover of their vendors the loss sus- tained by the sub-vendees, measured by the difference in value be- tween the inferior crop produced and that which might have been pro- duced from "chevalier" barley. The case of Passinger v. Thorburn was approved in Milburn v. Belloni (39 N. Y. 53), and was said by the court to be decisive of the case then under consideration. In Wolcott V. Mount (36 N. J. 262), and Fleck v. Weatherton (20 Wis. 392), the rule adopted in Passinger v. Thorburn was approved and applied by the court. We think the case of Passinger v. Thorburn should be adhered to. It was carefully considered and decided, and we are not prepared to say that the rule there adopted is a departure from correct principle. Gains prevented, as well as losses sustained, may be recovered as damages for a breach of contract, where they can be rendered reasonably certain by evidence, and have naturally resulted from the breach. (Masterton v. The Mayor, etc., 7 Hill, 61; Griffin v. Colver, 16 N. Y. 489; Messmore v. The N. Y. Shot and Lead Co., 40 N. Y. 422.) But mere contingent or speculative gains or losses, with respect to which no means exist of ascertaining with any cer- 748 REIGER v. WORTH. [cHAP. VI. rainty whether they woiilfl have resulted or not, are rejected, and the jury will not be allowed to consider them. Can it be said that the damages allowed in Passinger v. Thorburn are incapable of being ascertained Avith reasonable certainty by a jury? The character of the season, whether favorable or unfavorable for production; the manner in which the plants set were cultivated; the condition of the ground; the results observed in the same \'icinity where cabbages were planted, under similar circumstances; the market xidue of Bristol cabbages when the crop matured; the value of the crop raised from the defective seed; these, and other circumstances, m^y be shown to aid the jury, and from which they can ascertain ap- proximately the extent of the damages resulting from the loss of a crop of a particular kind. Judgment reversed. REIGER V. WORTH. Supreme Court of North Carolina, 1900. [Reported 127 A'. C. 230.] Montgomery, J. This action was brought by the plaintiff to re- cover damages of defendant on account of a breach of warranty, the form of the action being that formerly known as "case." The plain- tiff bought of the defendant a quantity of rice, which he alleged the defendant represented to be good seed rice, but which was in fact not good seed rice, and which failed to sprout after having been planted, although the land was well prepared. The plaintiff further alleged that it was too late, after he discov-^ered that the rice was worthless for seed, and had failed to germinate, to plant for another crop. The jury found these allegations of fact to be true. The plaintiff demanded judgment for the amount paid for the rice, for the amount he expended in preparing the land and in planting the rice, and for the amount of profit which would have been made by the plaintiff upon the antici- jiated crop had the rice sprouted. The following issues were submitted to the jury: (1) Was the rice sold by the defendant to the plaintiff warranted to be good seed rice? (2) If so, was it such as it was war- ranted to be? (3) If not, what damage has plaintiff sustained? The third issue was sub-divided into (1) actual damages, (2) the loss of crop. The third issue was sub-di\ided, as is stated in the case on ap- peal, to make a new trial unnecessary in case the Supreme Court should hold damages of crop were too remote and speculative. The jury responded to the first issue, "Yes;" to the second, "No," and to the third (sub-division 1), "$284," and to the second sub-division, "$400," and judgment was rendered against the defendant for both SECT. III.] REIGER I'. WORTH. 749 amounts. The appeal of the defendant is from so much of the judg- ment as is contained in the amount which the jury found in response to the second sub-division of the third issue — for the loss of the crop. The appeal, however, brings with it the question of the correctness of the submitting by his Honor of the second sub-division of the third issue; of his receiving the testimony of witnesses as to the price of rice in the fall of the year 1898, the time when the anticipated crop would have matured; and as to the average yield of rice on such land as the plaintiff's and as the plaintiff had prepared; and of his instruction to the jury on the second sub-division of the third issue. That instruc- tion was, after calling attention to the evidence and contentions of the parties, "that they would allow the plaintiff such a sum as they would find from the evidence his net profit on the crop would have been if there had been no breach of the warranty. This is the sum left after deducting expenses of preparing for and working said crop, housing and marketing the same." The matter involved in his Honor's instruction to the jury is the one to which all of the defendant's other exceptions point, and the discussion of the charge is, therefore, the discussion of them all. The question for consideration and decision, then, is: Can one who sells a farm product to a purchaser, the pur- chaser making known at the time of the purchase that he wants the article for seed with which to plant a crop, and who guarantees that the article which he sells is good for the purposes of seeding, be made liable in damages in case of the entire worthlessness of the article for seed purposes, discovered after the land has been prepared and the seed sowTi, and too late to plant another crop, for such an amount as a jury might find upon the testimony of witnesses to be the value of the crop which might have been gathered if the seed had been good, and a fair crop raised? Compensation is to be made to the one who sustains an injury in his person, in his property, or in his reputation. This is a general principle underlying the law of damages. And there is another general rule to the effect that the remote consequences of an act, or conjectural consequences, do not make a person liable in damages. Damages can be recovered against one only for the conse- quences of his act when those consequences are proximate, or natural. Great difficulty had been found in all the courts in the proper applica- tion of these general rules to the peculiar facts of particular cases, and many of the reported cases are in hopeless conflict. . . . In the case of iioberts v. Cole, 82 X. C. 292, it appears from the case that the parties to the action agreed to build and keep in repair sepa- rate parts of a common division fence, which divided and protected their respective crops. The defendant violated his agreement, per- mitting his part of the fence to become rotten, whereupon hogs broke into the plaintift"s field, and injured his crop. In the trial of the case his Honor told the jury that, if the fence was intended by the parties 750 WESTERN UNION TELEGRAPH CO. V. HALL. [CHAP. VI. to guard their crops from the depredations of stock, the plaintiff was entitled to whatever he had expended in the renewing of the fence, and to have damages for the injury to his crops, and that the measure of his damage was the difference between what the crop undisturbed ordinarily would be, and that which was made, diminished by the breaking in of the hogs. The Court said: "While the Court below very properly declined to restrict the plaintiff's claim to compensation for defendant's breach of contract, as requested, and correctly directed the jury to estimate and allow for the ravages of the hogs, the rule by which the measure of his injury was to be ascertained was too vague and uncertain to act upon. The value of the crop made is capable of definite calculation, but what it would have made if it had not been interfered with — the other element in the proposition — is and must be purely and wholly conjectural." No precedents are referred to in that opinion on the point we have been discussing; that is, upon the question of allowing the plaintiffs in actions to give in evidence the value of crops that might have been grown and reaped. . . . However that may be, we have concluded, after mature reflection and a careful study of all the cases to which we were referred in the argument, and which we have found in our investigation, that the principle laid down in Roberts v. Cole applies, and that the plaintiff ought not to have been allowed to recover the amount estimated as the crop of rice which might have been produced upon the land if the rice had been good seed rice. ... Error. WESTERN UNION TELEGRAPH COMPANY v. HALL. Supreme Court of United States, 1888. [Reported 124 U. S. 444.] Action at law for the recoA'ery of damages for alleged negligence on the part of defendant in delaying a message received by it from the plaintiff at Des Moines to be delivered to the party to whom it was addressed at Oil City. The message was in the following terms. "To Chas. T. Hall, Exchange, Oil City, Pa. Buy ten thousand if you think it safe. Wire me. Geo. F. Hall." By reason of an error of defendant in failing to send the correct name, it was delivered at 6 o'clock p. M. instead of ILSO A. M. Had the despatch upon its first receipt at Oil City, Pa., been promptly delivered to Charles T. Hall, he would, by 12 m. of November 9th have purchased ten thousand barrels of petroleum at the then market price of SI. 17 per barrel for the plaintiff. When the despatch was delivered to Charles T. Hall the exchange had been closed for that day, so that said Hall could SECT. III.] WESTERN UNION TELEGRAPH CO. V. HALL. 751 not then purchase the petroleum ordered by plaintiff. At the open- ing of the board the next day the price had advanced to .SI. 35 per barrel, at which rate said Charles T. Hall did not deem it advisable to make the purchase, and hence did not do so. It is not disclosed in the evidence whether the price of petroleum has advanced or receded since that date, November 10th, 1882.^ Matthews, J. The view we take of this case requires us, in answer to the fourth question certified, to say that, in the circumstances dis- closed by the record, the plaintiff was entitled only to recover nominal damages, and not the difference in value of the oil if it had been pur- chased on the day when the message ought to have been delivered and the market price to which it had risen on the next day. As the judgment was rendered in his favor for the latter sum, it must be reversed on that account, and, upon the facts found by the court, judgment rendered for nominal damages only, which finally disposes of the litigation. It, therefore, becomes unnecessary to consider or decide any of the other questions certified to us. It is found as a fact that if the despatch upon its first receipt at Oil City had been promptly delivered to Charles T. Hall, to whom it was addressed, he would by twelve o'clock on that day have purchased ten thousand barrels of oil at the market price of $1.17 per barrel on the plaintiff's account. He was unable to do so in consequence of the delay in the delivery of the message. On the next day the price had advanced to $1.35 per barrel, and no purchase was made because Charles T. Hall, to whom the message was addressed, did not deem it advisable to do so, the order being conditional on his opinion as to the expediency of executing it. If the order had been executed on the day when the message should have been delivered, there is nothing in the record to show whether the oil purchased would have been sold on the plaintiff's account on the next day or not; or that it was to be bought for resale. There was no order to sell it, and whether or not the plaintiff would or would not have sold it is altogether uncertain. If he had not done so, but had continued to hold the oil bought, there is also nothing in the record to show whether, up to the time of the bringing of this action, he would or would not have made a profit or suffered a loss, for it is not disclosed in the record whether during that period the price of oil advanced or receded from the price at the date of the intended purchase. The only theory, then, on which the plain- tiff could show actual damage or loss is on the supposition that, if he had bought on the 9th of November, he might and would have sold on the 10th. It is the difference between the prices on those two days which was in fact allowed as the measure of his loss. It is clear that in point of fact the plaintiff has not suffered any actual loss. No transaction was in fact made, and there being neither a purchase nor a sale, there was no actual difference between the sums 1 This short statement is substituted for the original. — Ed. 752 WESTERN UNION TELEGRAPH CO. V. HALL. [cHAP. VI. paid and the sums received in consequence of it, which could be set down in a profit and loss account. All that can be said to have been lost was the opportunity of buying on November 9th, and of making a profit by selling on the 10th, the sale on that day being purely con- >: tingent, without anything in the case to show that it was even probable ■ or intended, much less that it would certainly have taken place. p It has been .well settled since the decision in Masterton v. The Mayor of Brooklyn, 7 Hill, 61, that a plaintiff may rightfully recover a loss of profits as a part of the damages for breach of a special contract, but in such a case the profits to be recovered must be such as would have accrued and grown out of the contract itself as the direct and immediate result of its fulfilment. In the language of the Supreme Judicial Court of Massachusetts in Fox r. Harding, 7 Cush. 516: " These are part and parcel of the contract itself, and must have been in the contemplation of the parties when the agreement was entered into. But if they are such as would have been realized by the party from other independent and collateral undertakings, although entered into in consequence and on the faith of the principal contract, then they are too uncertain and remote to be taken into consideration as a. part of the damages occasioned by the breach of the contract in suit," p. 522. This rule was applied by this court in the case of The Phila- delphia, Wilmington and Baltimore Railroad v. Howard, 13 How. 307. In Griffin v. Colver, 16 N. Y. 489, the rule was stated to be that " the damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract^ that is, they must be such as might naturally be expected to follow its violation; and they must be certain both in their nature and in lespect to the cause from which they proceed. The familiar rules on this sub- ject are all subordinate to these. For instance, that the damages must flow directly and naturally from the breach of contract, is a mere mode of expressing the first; and that they must be not the remote but proximate consequence of such breach, and must not be speculative or contingent, are different modifications of the last," p. 495. In Booth r. Spuyten Duyvil Rolling Mills C^o., 60 N. Y. 487, the rule was stated to be that "the damages for which a party may re- cover for a breach of a contract are such as ordinarily and naturally flow from the non-performance. They must be proximate and cer- tain, or capable of certain ascertainment, and not remote, speculative or contingent," p. 492. In White v. Miller, 71 N. Y. 118, 133, it was said: "Gains pre\'ented, as well as losses sustained, may be recovered as damages for a breach of contract, when they can be rendered rea- sonably certain by evidence, and have naturally resulted from the breach." In cases of executory contracts for the purchase or sale of personal property ordinarily, the proper measure of damages is the dift'erence between the contract price and the market price of the goods at the SECT. III.] WESTERN UNION TELEGRAPH CO. V. HALL. 753 time when the contract is broken. This rule may be varied according to the principles established in Hadley v. Baxendale, 9 Exch. 341; S. C. 23 L. J. Ex. 179, where the contract is made in view of special circumstances in contemplation of both parties. That well-known case, it will be remembered, was an action against a carrier to recover damages occasioned by delay in the delivery of an article, by reason of which special injury was alleged. In the application of the rule to similar cases, where there has been delay in delivering by a carrier which amounts to a breach of contract, the plaintiff is not always entitled to recover the full amount of the damages actually sustained; prima facie the damages which he is entitled to recover would be the difference in the value of the goods at the place of destination at the time they ought to have been delivered and their value at the time when they are in fact delivered. Horn v. Midland Railway Co., L. R. 8 C. P. 131; Cutting v. Grand Trunk Railway Co., 13 Allen, 381. Any loss above this difference sustained by the plaintiff, not arising directly from the delay, but collaterally by reason of special circumstances, can be recovered only on the ground that these special circumstances, being in view of both parties to the contract, constituted its basis. Simpson r. London & Northwestern Railway Co., 1 Q. B. D. 274. So the loss of a market may be made an element of damages against a carrier for delay in deli\ery, where it was understood, either expressly or from the circumstances of the case, that the object of deli^•el•J' was to get the benefit of the market. Pickford v. Grand Junction Railway Co., 12 M. & \V. 766. In Wilson v. Lancashire & Yorkshire Railway Co., 9 C. B. N. S. 632, the plaintiff was held entitled to recover for the de- terioration in the marketable value of the cloth by reason of delay in the delivery, whereby the season for manufacturing it into caps, for which it was intended, was lost. The same rule, by analogy, has been applied in actions against tele- graph companies for delay in the delivery of messages, whereby there has been a loss of a bargain or a market. Such was the case of L'nited States Telegraph Co. v. Wenger, 55 Penn. St. 262. There the message ordered a purchase of stock, which advanced in price between the time the message should have arrived and the time when it was purchased under another order, and the advance was held to be the measure of damages. There was an actual loss, because there was an actual pur- chase at a higher price than the party would have been compelled to pay if the message had been promptly delivered, and the circumstances were such as to constitute notice to the company of the necessity for prompt delivery. The rule was similarly applied in Squire v. Western Union Telegraph Co., 98 Mass. 232. There the defendant negligently delayed the delivery of a message accepting an offer to sell certain goods at a certain place for a certain price, whereby the plaintiff lost the bargain, which would have been closed by a prompt delivery of the message. It was held that the plaintiff was entitled. to recover, as com- 754 WESTERN UNION TELEGRAPH CO. V. HALL. [CH.\P. VI. pensation for his loss, the amount of the difference between the price which he agreed to pay for the merchandise by the message, which if it had been duly dehvered would have closed the contract, and the sum which he would have been compelled to pay at the same place in order, by the use of due diligence, to have purchased a like quality and quantity of the same species of merchandise. There the direct consequence and result of the delay in the transmission of the mes- sage was the loss of a contract which, if the message had been duly delivered, would by that act have been completed. The loss of the contract was, therefore, the direct result of the defendant's negligence, and the value of that contract consisted in the difference between the contract price and the market price of its subject-matter at the time and place when and where it would have been made. The case. of True V. International Telegraph Co., 60 Maine, 9, cannot be dis- tinguished in its circumstances from the case in 98 Mass. 232, and was governed in its decision by the same rule. The cases of Manville V. Telegraph Co., 37 Iowa, 214, 220, and of Thompson v. Telegraph Co., 64 Wisconsin, 531, were instances of the application of the same rule to similar circumstances, the difference being merely that in these the damages consisted in the loss of a sale instead of a purchase of property, which was prevented by the negligence of the defendant in the delivery of the messages. In these cases the plaintiffs were held to be entitled to recover the losses in the market value of the property occasioned, which occurred during the delay. Of course where the negligence of the telegraph company consists, not in delaying the transmission of the message, but in transmitting a message erroneously, so as to mislead the party to whom it is addressed, and on the faith of which he acts in the purchase or sale of property, the actual loss based upon changes in market value are clearly within the rule for estimating damages. Of this class examples are to be found in the cases of Turner v. Hawkeye Telegraph Co., 41 Iowa, 458, and Rittenhouse v. Independent Line of Telegraph, 44 N. Y. 263; but these have no application to the circumstances of the present case. Here the plaintiff did not purchase the oil ordered after the date when the message should have been delivered, and therefore was not re- quired to pay, and did not pay, any advance upon the market price prevailing at the date of the order; neither does it appear that it was the purpose or intention of the sender of the message to purchase the oil in the expectation of profits to be derived from an immediate re- sale. If the order had been promptly delivered on the day it was sent, and had been executed on that day, it is not found that he would have resold the next day at the advance, nor that he could have resold at a profit at any subsequent day. The only damage, therefore, for which he is entitled to recover is the cost of transmitting the delayed message. The judgment is accordingly reversed, and the cause remanded, with directions to enter a judgment jor the plaintiff for that sum merely. SECJ. III.] PACIFIC STEAM WHALING CO. V. PACKERS' ASSOC. 755 PACIFIC STEAM WHALING CO. v. ALASKA PACKERS' ASSOCIATION. Supreme Court of California, 1903. [Reported 138 Cal. 632.] McFarland, J. Each of the parties to this action is a corporation, and at the time of the occurrences out of which the Htigation here in- volved arose both of the parties were engaged in catching salmon along the shore of Alaska, at and near the mouth of Karluk River, in and near and about Tanglefoot Bay, Karluk Beach, and Tanglefoot Beach, and each had plants in the vicinity at which the fish were canned. The action is for damages for alleged wrongful acts, by which defend- ant, during the fishing season of 1897, unlawfully and forcibly excluded plaintiff from fishing in the ocean in the localities above mentioned. The jury returned a verdict for plaintiff in the sum of $14,000, for which amount judgment was rendered. Defendant appeals from the judgment and from an order denying its motion for a new trial. . . . Upon the subject of actual damages there was no error in admitting evidence or instructing the jury. Plaintiff claimed that it had been forcibly excluded by defendant from salmon-fishing in the said waters during the fishing season of 1897. The court had instructed the jury on that point as follows: "I instruct you that sufficient reason would exist for plaintiff to desist from further attempt to fish if the acts and declarations of defendant's agent were such as would satisfy a reason- able man that further attempts to fish would be useless, because they would be met and frustrated bj' force"; and there was e^■idence to warrant the jury in finding the fact referred to in the instruction. The general nature of the evidence as to actual damages to which defendant objected and which plaintiff was allowed to introduce was this: Evi- dence tending to show how many fish plaintiff could, with reasonable probability, have taken from the fishing-grounds in question if it had not been excluded therefrom by the unlawful acts of defendant, — the value of such fish, and the profits which would reasonably have accrued to the plaintiff from the fish when canned. Plaintiff was also, in this connection, allowed to introduce evidence tending to show how many fish defendant actually did take in these fisheries during the said season. The court also instructed the jur}^ as follows : " I instruct you that if you find that defendant or its employees or servants were, under the law as given you, guilty of acts constituting an unla"wful interference with plaintiff's pursuit of a lawful business in a lawful way, then you must assess as damages the amount which will conipensate plaintiff for all the detriment proximately caused thereby. I instruct you that if you find that plaintiff suffered damage by reason of the alleged 756 LAJVIOND V. SEA COAST CANNING COMPANY. [CHAP. V^I. wrongful acts of the defendant, or of its servants and employees, then in assessing the amount of damages caused to plaintiff by the alleged wrongful acts, you may consider the loss, if any, to plaintiff of probable profits in its business." The position of defendant is, that the evidence pointed to damages too much in the nature of mere speculative profits to be admissible at all. We do not think that in these rulings of the court as to evidence, or in giving the said instructions, there was any error. The profits sought to be pro\ed were not so remote, uncertain, prospective, or conjectural as to be entirely beyond the range of legitimate damages. Of course, evidence of such damages should be closely scrutinized by a jury, and claims merely fanciful and beyond reasonably proximate certainty should be by them excluded; but the jury in this case were suitably instructed and warned on that subject, and it is to be presumed that they did their duty in the premises. With respect to this kind of damage, of course, there cannot be the absolute certainty possible in many plainer cases; but a wrongdoer cannot entirely escape the con- sequences of his unlawful acts merely on account of the difficulty of proving damages; he can do so only where there is no possibility of a reasonably proximate estimation of such damages, which is not the fact in the case at bar. The waters in question here constituted a special salmon fishery, — where those fishes were to be found in great abundance, — and the proposition that damages evidently suffered by plaintiff from the wTongful act of the defendant by which plaintiff was excluded from exercising the clearly valuable right of fishing in those waters are entirely beyond legal proof, cannot be maintained. We think that on this point the case at bar is within the rule announced in Shoemaker v. Acker, 116 Cal. 239, and cases there cited. LAMOND V. SEA COAST CANNING COMPANY Supreme Judicial Coitrt of Maine, 1911. [Reported 108 Me. 155.] Whitehouse, J. In this action the plaintiff seeks to recover dam- ages alleged to have been caused by the unlav/ful act of the defendant in dumping into Passamaq noddy bay and the surrounding waters large quantities of decayed and refuse sardines packed in oil in such prox- imity to a fish weir lawfully maintained by the plaintiff, that the punc- tured cans were swept by the action of the tide into and around the plaintiff's weir and the fish thereby prevented from going into it. . . . The burden was upon the plaintiff to establish by evidence the prospectiA'e profits of which he claimed to have been deprived by the unlawful act of the defendant. They cannot be estimated by the court SECT. III.] LAMOXD r. SEA COAST CANNING COMPANY. 757 without reasonably definite and reliable evidence to justify the finding. In view of the testimony in this case showing the irregularity with which the fish enter these weirs without any apparent reason therefor, the plaintiff himself has not attempted to make any estimate of his damages. The only analogous case to which the attention of the court has been called in which the right of the plaintiff to recover for the loss of profits from his business of fishing was brought directly in question, is that of Wright v. Mulvaney, 78 Wis. 89 (46 N. W. 1045). In that case the plaintiff had a "pot net" or "pound" set in the river, which was injured by the defendant's steam tug. The testimony tended to show that before the injury the plarintiff derived a profit of from $40 to $50 per day every alternate day, and that it would have required about ten days to restore the injured net, had it been restored. No other testimony was introduced bearing upon the question of profits, and the jury assessed the damages for profits at $200. But the court held that such prospective profits were not recoverable upon this evidence. In the opinion it is said: "There was no testiniony as to whether the conditions of successful fishing remained for ten days after the injury as favorable as they were immediately before the same, — none to show that the weather continued favorable during the ten days; that storms did not intervene to interrupt the business; that the fish continued to run over the same grounds in equal abundance; that other fishermen operating in the vicinity were eciually as successful in their business after as before the injury; nor that the market price of fish remained as high. Without any testimony concerning these essen- tial conditions, the jury must have made their assessment of damages of plaintiff's business largely upon mere conjecture. They must have assumed without proof that a business proverbially uncertain in results depending for its success upon numerous conditions which the persons engaged therein cannot control or influence, and the presence or ab- sence of which at a future time cannot be foretold with any degree of accuracy, would have continued after the net was injured to be just as profitable as it was before the injury. Such an assumption under such circumstances, is unwarranted in the law, and probably we should be compelled to reverse this judgment for want of sufficient evidence to support the assessment of damages for profits, even though it should be held that, under proper proofs, the plaintiff might recover pro- spective profits. But we are of the opinion that prospective profits cannot properly be awarded as damages in this case. The reason therefor has already been suggested, which is that under any state of testimony, in view of the character and conditions of the business, the jury could have no sufficient basis for ascertaining such prospective profits. At best, the assessment thereof must necessarily rest largely upon conjecture. This feature of the case brings it within the rule of Bierbach v. Good\ear Rubber Company, 54 Wis. 208, and Anderson v. Sloan, 72 Wis. 556, antl the cases cited in the opinion therein." 758 SAPWELL V. BASS. [CHAP. VI. See also 13 Cyc. 56, 57; Ferris v. Comstock, 33 Conn. 513, and Bar- ton V. Erie R. Co., 73 N. J., Law 12 (62 Atl. 489). It will be noticed that in the case at bar there was not only positive evidence from the plaintiff's owni witnesses of the uncertainty and irregularity of the weir fishing on that shore but substantially the same absence of testimony described in Wright v. Mulvaney, supra, showing that the conditions for successful fishing were as favorable immediately after the injuries as they were immediately before. The principle applied in that case must accordingly be accepted as decisive of the question of prospective profits in the case at bar. But in that case the plaintiffs were allowed by the court to retain the damages awarded them by the jury for the cost of repairing the injured net and the value of the services of the plaintiffs and their employees in resetting it. In the case at bar the plaintiff' is entitled to recover as damages the fair value of his own services and that of his " hired man " in their reasonable endeavor to remove the obnoxious refuse from the weir and make the operation of it successful and profit- able. It appears from the undisputed evidence introduced by the plaintiff that it required five weeks in 1906 and four weeks in 1907 for himself and his assistant to clean out the weir. But they labored only during those portions of the day when the tide was favorable, and it is the opinion of the court that a reasonable compensation for their services would be $3.00 per day in the aggregate, amounting to $90 for the year 1906, and $72 for the year 1907, and that the plaintiff is en- titled to recover these sums with interest from the date of the writ. The certificate will accordingly be, Judgment for the plaintiff for $162, with interest from August 8, 1907. SAPWELL v: BASS. High Court of Justice, King's Bench Division, 1910. [Reported [1910] 2 K. B. 486.] Jelf, J. This action, which raised an important question as to the measure of damages for l)reach of contract, was brought by Colonel Sapwell against Sir William Bass, and was tried before me without a jury at the last Norwich Winter Assizes, and afterwards heard on further consideration in London. The plaintiff is a well-known and experienced breeder of racehorses, and the defendant. Sir William Bass, was the owner of a famous stallion called Cyllene. On April 21, 1909, the plaintiff sued the defendant for damages for breach of an alleged contract made by correspondence in December, 1907, and January, 1908, whereby it was agreed between the plaintiff and Lord Marcus Beresford (as agent for the defendant) that CyUene SECT. III.] ~ SAPWELL V. BASS. 759 should in the season of 1909 serve one of the plaintiff's brood mares to be selected by the plaintiff for a fee of £315 to be paid at the time of the said service by the plaintiff to the defendant. In the summer of 1908 the defendant, without the consent of the plaintiff and without previous notice to him, sold Cyllene for £30,000 to go to South America. . . . The question of damages presented formidable and to my mind in- superable difficulties. It is clear that if the 300 guineas had been paid the plaintiff could have recovered it back. But he had paid nothing. For obtaining the service of Cicero the plaintiff had to pay a fee of £ 100 only instead of 300 guineas. No other expenses had been incurred or steps taken by the plaintiff in special preparation for the expected service by Cyllene, for such expenses and steps were all available for the service by Cicero. Neither party could suggest nor could I discover any tertium quid by way of compensation. The suggestion of Jervis, C. J., and Willes, J., in Fletcher v. Tay- leur, that the average profit made by the use of the chattels not de- livered should by analogy with the interest on money not paid be the amount of damages, has not been adopted as a separate rule, and moreover would not be applicable to the present case. It seems to follow that the damages, if any, applicable in this case would be on the one hand the estimated loss of prospective profit on the lines put for- ward by the plaintiff in the above correspondence and the evidence which was given in respect thereof, or on the other hand nominal damages. Now it will be observed that the expectation of profit arising from the contract at the time it was made was not and could not be based on any tangible market price of the expected progeny of Cyllene and the undetermined mare, nor on the enhanced prospective price of such mare, but upon a succession of contingencies which could not be fore- told more than a year beforehand, such as the following: — (1.) That Cyllene would be alive and well at the time of the intended service. (2.) That the mare sent would be a well-bred one, and that the plain- tiff would for his own sake and without any obligation towards the defendant make a good and suitable selection of such mare. (3.) That the mare sent would not prove l)arren, which had happened to another mare sent by the plaintiff to Cyllene. (4.) That the mare sent would not slip her foal, and that such foal would be born alive and would be strong and healthy. (5.) The chance whether it would be a colt or a filly, the former being more valuable. (6.) That the foal would be all right when offered for sale. (7.) That the relative reputations of Cyllene and other sires and their respective foals would be the same in 1909 as in 1908. (8.) That no substitute for Cyllene (e.g., Cyllene's son Cicero) available in 1909 would equal or excel Cyllene in public estimation or in results. (9.) That Cicero's offspring would not com- mand as good a price as Cyllene's. Now in a case like this, where there is obviously no actual market 7G0 SAPWELL l\ BASS. [CIL\P. YI. price to guide one, and where there is not in the contract any Hquidated sum agreed on for damages, one could only rely on the weighing of chances. It was not contended that the contract was one of insurance, or that the fee of 300 guineas payable for the service by Cyllene included any premium payable to the defendant for entering into such an oner- ous contract. But the law in general regards damages which depend entirely on chances as too remote and therefore irrecoverable. The cases seem to shew that the line may sometimes be diificult to draw between an estimate of damage based on probabilities, as in Simpson v. London and North Western Ry. Co., where Cockburn, C. J., says, "To some extent, no doubt, they (the damages) must be matter of speculation, but that is no reason for not awarding any damages at all," and a claim for damages of a totally problematical character, but I think that the present case is well over the line. The following pas- sage from Mayne on Damages, 8th ed., p. 11, forms, I think, a strong argument in favour of the damages in the present case being only nominal : — " The principle of all these cases seems to be that in matters of contract the damages to which a party is liable for its breach ought to be in proportion to the benefit he is to receive from its performance. Now this benefit, the consideration for his promise, is always measured by the primary and intrinsic worth of the thing to be given for it, not by the ultimate profit which the party receiving it hopes to make when he has got it. . . . The price is based on the market value of the thing sold. ... It is obviously unfair, then, that either party should be paid for carrying out his bargain on one estimate of its value, and forced to pay for failing in it on quite a different estimate. This would be making him an insurer of the other party's profits without any premium for undertaking the risk." In Watson v. Ambergate, Nottingham, and Boston Ry. Co., which is commented upon in Mayne on Damages, Sth ed., p. 70, Patteson, J., seemed to think that the chance of a prize might be taken into account in estimating the damages for breach of contract in sending a machine for loading barges by railway too late for a show, but Erle, J., appeared to think that this damage was too remote. The case went off on an- other point, but I incline to think that the view of Erle, J., was the correct one, as the chance of winning a prize was not, in my opinion, of sufficiently ascertainable value at the time the contract was made to be within the contemplation of the parties. Moreover, the contin- gencies in the present case are far more numerous and uncertain than in the case cited. The American decisions are collected in Sedgwick on Damages, Sth ed., vol. 1, pp. 245 et seq., 277, 292-294. The principle above discussed is clearly laid down, and it is shewn that in order to be recoverable damages for loss of profit must not only naturall\- flow from the breach or be at the time of contract in the contemplation of both parties, but that the amount also can be ascertained with reasonable certaintv. SECT. III.] CHAPLIN V. HICKS. 761 Now in the present case, although the defendant must be taken to have known the plaintiff's general business object in making the bar- gain and his expectation of commercial profit in making it, I do not consider that the plaintiff's suggested damage was the reasonable and natural result of the defendant's breach, or that it could have been within the contemplation of both parties at the time of contract made according to the rule in Hadley v. Baxendale and other cases of the same kind. I therefore decide this case on the ground that there is no evidence of any legal damage arising from the breach of contract, and if there had been a jury I should have so directed them. If I had been at liberty to speculate on the chances, I might or might not have come to the same conclusion upon the facts. The price paid for the service by Cicero was £lOO instead of the £315 which the plain- tiff' would have had to pay for the service of Cyllene, and the plaintiff therefore starts with £215 to the good by properly diminishing the damages as best he could, and looking to all the accumulated chances which have to be taken into account as above enumerated, it is doubt- ful whether any tribunal would find that the plaintiff lost by having a foal of Cicero and Dear Mary, instead of a foal of Cyllene and Dear Mary, enough to overtop the initial gain, even if it were clear that the difference between the value of a foal by Cyllene and of a foal by Cicero could under all the circumstances be put as high as £215. I prefer, however, not to prejudice either party on the legal question of remote- ness of damage by making a pure shot or guess on a matter as to which I have in my view no legal basis of assessment to guide me. I therefore reluctantly hold that the plaintiff is not legally entitled to judgment for at all events more than nominal damages. I give judgment, therefore, for the plaintiff for Is. damages. C'osts are in my discretion. In an ordinary case in which the plain- tiff" recovers nothing by way of damages and has substantially failed, I should make him pay the« defendant's costs, but having regard to the attitude taken up by the defendant and his agent throughout, and to the issues on which the defendant has failed, I think justice will be done by ordering each party to pay his own costs. Judgment accordingly. CHAPLIN V. HICKS. Court of Appeal, 1911. [Reverted [1911] 2 K. B. 78G.] Application of the defendant for judgment or a new trial in an action tried by Pickford, J., and a common jury. On November 5, 1908, a letter from the defendant, a w(>ll-known actor and theatrical manager, was published in a London daily news- 762 CHAPLIN V. HICKS. [CHAP. VI. paper, in which he said that, with a view of deahng at once with the numerous appHcations continually being made to him by young ladies desirous of obtaining engagements as actresses, he was willing that the readers of that newspaper should by their votes select twelve ladies, to whom he would give engagements. On the four following days the offer was published in detail in the newspaper. Ladies were invited to send their photographs to the newspaper by November 24, 1908, together with an application form, in which they were to insert name, address, and general personal description. The defendant, with the assistance of a committee, would then select twenty-four photographs to be published in the newspaper, and the readers of the newspaper would out of those select the twelve wanners, to the first four of whom the defendant would give an engagement for three years at £5 a week, to the second four an engagement for three years at £4 a week, and to the third four an engagement for three years at £3 a week. On Nov- ember 10 the plaintiff sent in a signed application together with her photograph. The response to the defendant's offer was so great that in the issue of December 9 an alteration of the conditions of the com- petition was announced. It was stated that about six thousand photographs had been sent in, and that from these the defendant or his committee had selected about three hundred, which would be pub- lished in the newspaper in the following way: the United Kingdom Would be divided into ten districts, and the photographs of the selected candidates in each district would be submitted to the readers of the newspaper in that district, who were to select by their votes those whom they considered the most beautiful. After the voting was com- pleted the defendant would make an appointment to see the five ladies in each district whose photographs so published obtained the greatest number of votes, and from these fifty the defendant would himself select the twelve who would receive the promised engage- ments. The plaintiff assented to the alteration in the terms of the competition. The fifty photographs were then published with num- bers appended to them in the newspaper, together wath a ballot paper on which the reader of the newspaper registered his vote for the par- ticular number which he preferred, and added his signature and ad- dress. On January 2, 1909, the poll closed; the plaintiff's name ap- peared at first in her particular section, and she became one of the fifty eligible for selection by the defendant. On January 4 the de- fendant's secretary WTote a letter to the plaintiff asking her to call at the Aldwych Theatre at 4 o'clock on Wednesday afternoon [Jan- uary 6] to see the defendant. This letter w^as addressed to the plain- tiff's London address, which was the only address given by the plaintiff in her application, and was delivered there by the first post on Jan- uary 5. The plaintiff was at that time fulfilling an engagement at Dundee; the letter was at once re-addressed to Dundee, where it reached the plaintiff on January 6, much too late for her to keep an SECT. III.] CHAPLIN V. HICKS. 763 appointment in London on that afternoon. The other forty-nine ladies kept their appointments, and on January 6 the defendant made his final selection of the twelve, of whom the plaintiff was not one. The plaintiff made attempts, but unsuccessfully, to obtain another appointment wath the defendant, and eventually brought the present action to recover damages on the ground that by reason of the de- fendant's breach of contract she had lost the chance of selection for an engagement. The jury found, in answer to a question put to them by the learned judge, that the defendant did not take reasonable means to give the plaintiff an opportunity of presenting herself for selection, and assessed the damages at £100, for which sum PiCK- f'ORD, J., after argument, directed judgment to be entered. The defendant appealed. Vaugh.\n Williams, L. J. I am of opinion that this appeal should be dismissed. . . . Then came the point that was more strenuously argued, that the damages were of such a nature as to be impossible of assessment. It was said that the plaintiff's chance of winning a prize turned on such a number of contingencies that it was impossil)le for any one, even after arriving at the conclusion that the plaintiff had lost her oppor- tunity by the breach, to say that there was any assessable value of that loss. It is said that in a case which involves so many contingen- cies it is impossible to say what Avas the plaintiff's pecuniary loss. I am unable to agree with that contention. I agree that the presence of all the contingencies upon which the gaining of the prize might depend makes the calculation not only difficult but incapable of being carried out with certainty or precision. The proposition is that, when- ever the contingencies on which the result depends are numerous and difficult to deal wath, it is impossible to recover any damages for the loss of the chance or opportunity of wimiing the prize. In the present case I understand that there were fifty selected competitors, of whom the plaintiff was one, and twelve prizes, so that the average chance of each competitor was about one in four. Then it is said that the questions which might arise in the minds of the judges are so numerous that it is impossible to say that the case is one in which it is possible to apply the doctrine of averages at all. I do not agree with the con- tention that, if certainty is impossible of attainment, the damages for a breach of contract are unassessable. I agree, however, that damages might be so unassessable that the doctrine of averages would be inapplicable because the necessary figures for working upon w^ould not be forthcoming; there are several decisions, which I need not deal with, to that effect. I only wish to deny with emphasis that, because precision cannot be arrived at, the jury has no function in the assess- ment of damages. In early daj^s when it was necessary to assess damages, no rules were laid down by the courts to guide juries m the assessment of 764 CHAPLIN V. HICKS. [CHAP. VI. damages for breach of contract; it was left to the jury absolutely. But in course of time judges began to give advice to juries; as the stress of commerce increased, let us say between the reigns of Queen Elizabeth and Queen Victoria, rule after rule was suggested by way of advice to juries by the judges when damages for breach of contract had to be assessed. But from first to last there were, as there are now, many cases in which it was difficult to apply definite rules. In the case of a breach of a contract for the delivery of goods the damages are usually supplied by the fact of there being a market in which similar goods can be immediately bought, and the difference between the contract price and the price given for the substituted goods in the open market is the measure of damages; that rule has been always recognized. Sometimes, however, there is no market for the particular class of goods; but no one has ever suggested that, because there is no market, there are no damages. In such a case the jury must do the best they can, and it may be that the amount of their verdict will really be a matter of guesswork. But the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages for his breach of contract. I do not wish to lay down any such rule as that a judge can in every case leave it to the jury to assess damages for a breach of contract. There are cases, no doubt, where the loss is so dependent on the mere unrestricted voli- tion of another that it is impossible to say that there is any assessable loss resulting from the breach. In the present case there is no such difficulty. It is true that no market can be said to exist. None of the fifty competitors could have gone into the market and sold her right; her right was a personal right and incapable of transfer. But a jury might well take the view that such a right, if it could have been trans- ferred, would have been of such a value that every one would recognize that a good price could be obtained for it. My \aew is that under such circumstances as those in this case the assessment of damages was unquestionably for the jury. The jury came to the conclusion that the taking away from the plaintiff of the opportunity of competi- tion, as one of a body of fifty, when twelve prizes were to be distributed, deprived the plaintift' of something which had a monetary value. I think that they were right and that this appeal fails. Farwell, L. J. ... It is contended that the amount of the plain- tiff'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 any- thing 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 prac- tically interchangeable, thougii it may be that the one is somewhat SECT. IV.] HADLEY V. B.^:x;EXDALE. 765 less definite than the other. The necessary ingredients of such an action are all present; the defendant has committed a breach of his contract, the damages claimed are a reasonable and probable conse- quence of that breach, and loss has accrued to the plaintiff at the time of action. 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 competi- tion we find chance upon chance, two of which the plaintiff had suc- ceeded 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 par- ticular di\asion 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 con- tingency, 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. . . . I need only refer shortly to Sapwell v. Bass, [1910] 2 K. B. 4S6. In that case there was no jury, and Jelf, J., exercising the functions of a jury, did not see his way towarrls assessing the damages at a larger sum than one shilling; if there had been a jury, and the learned judge had withdrawn the case from them on the question of the amount of damages, I think he would have been wrong. And in the present case, if the jury had given only a shilling, we could not have interfered. I agree that the appeal must be dismissed. Appeal dismissed. SECTION IV. Elements of Loss. HADLEY V. BAXENDALE. ' Exchequer, 1854. [Reported 23 L. J. (N. S.) Ex. 179: 9 Ex. ,341.>] This was an action by the plaintiffs, owners of a steam grist-mill, against the defendant, a carrier, for delay in delivering two pieces of iron, being the broken shaft of the mill of the plaintiffs, by reason of which delay the engineer to whom they were to be delivered was im- ^ The report of the case is taken from the Law Journal. — Ed. 766 HADLEY V. BAXENDALE. [CHAP. VI. al)le to supply a new shaft, and the mill of the plaintiffs was stopped, and the plaintiffs lost certain profits by the delay of their business, which was laid in the declaration as special damage. The defendant paid £25 into court. At the trial, before Crompton, J., at the Summer Assizes for Glouces- ter, 1853, it appeared that the broken shaft was to be sent to the en- gineer as a model for a new one, and at the time of the contract for the carriage being made, the defendant's clerk was informed that the mill was stopped and that the shaft must be sent immediately. It further appeared that its delivery at its destination was delayed for several days, and, consequently, the plaintiffs did not receive the new shaft back as they expected, and their mill was kept idle. The learned judge left the question of damages to the jury, although it was objected that the special damage was too remote, and they gave a verdict for the plaintiffs for £25 beyond the sum paid into court. A rule 7iisi for a new trial for misdirection was obtained in Michael- mas term, on the ground that the learned judge ought to have told the jury to throw out of their consideration the alleged special damage.^ Alderson, B. We think that there ought to be a new trial in this case; but, in so doing, we deem it to be expedient and necessary to state explicitly the rule which the judge, at the next trial, ought, in our opinion, to direct the jury to be governed by when they estimate the damages. It is, indeed, of the last importance that we should do this; for, if the jury are left without any definite rule to guide them, it will, in such cases as these, manifestly lead to the greatest injustice. The courts have done this on several occasions; and, in Blake v. Midland Railway Company, 21 L. J., Q. B., 237, the court granted a new trial on this very ground, that the rule had not been definitely laid do^vn to the jury by the learned judge at Nisi Prius. "There are certain established rules," this court says, in Alder v. Keighley, 15 M. & W. 117, "according to which the jury ought to find." And the court, in that case, adds: "and here there is a clear rule, that the amount which would have been received if the contract had been kept, is the measure of damages if the contract is broken." Now we think the proper rule in such a case as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reason- ably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, 1 This statement of the case is taken from the report in 23 L. J. (n. s.) Ex. 179. SECT. IV.] HADLEY V. BAXENDALE. 767 and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communi- cated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them. Now the above principles are those by which we think the jury ought to be guided in estimating the damages arising out of any breach of contract. It is said that other cases, such as breaches of contract in the non-payment of money, or in the not making a good title to land, are to be treated as exceptions from this, and as governed by a conventional rule. But as, in such cases, both parties must be supposed to be cognizant of that well- known rule, these cases may, we think, be more properly classed under the rule above enunciated as to cases under known special circum- stances, because there both parties may reasonably be presumed to contemplate the estimation of the amount of damages according to tne conventional rule. Now, in the present case, if we are to apply the principles above laid down, we find that the only circumstances here communicated by the plaintiffs to the defendants at the time the contract was made, were, that the article to be carried was the broken shaft of a mill, and that the plaintiffs were the millers of that mill. But how do these circumstances show reasonably that the profits of the mill must be stopped by an unreasonable delay in the delivery of the broken shaft by the carrier to the third person? Suppose the plaintiffs had another shaft in their possession put up or putting up at the time, and that they only washed to send back the broken shaft to the engineer who made it; it is clear that this would be quite con- sistent with the above circumstances, and yet the unreasonable delay in the delivery would have no effect upon the intermediate profits of the mill. Or, again, suppose that, at the time of the delivery to the carrier, the machinery of the mill had been in other respects defective, then, also, the same results would follow. Here it is true that the shaft was actually sent back to serve as a model for a new one, and that the want of a new one was the only cause of the stoppage of the mill, and that the loss of profits really arose from not sending dowm the new shaft in proper time, and that this arose from the deky in deliver- ing the broken one to serve as a model. But it is obvious that, in the great multitude of cases of millers sending off broken shafts to third persons by a carrier under ordinary circumstances, such consequences 7G8 GUETZKOW BROS. CO. V. A. H. ANDREWS & CO. [CHAP. VI. would not, in all probability, have occurred; and these special circum- stances were here never communicated by the plaintiffs to the de- fendants. It follows, therefore, that the loss of profits here cannot reasonably be considered such a consequence of the breach of contract as could have been fairly and reasonably contemplated by both the parties when they made this contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, whicli, perhaps, would have made it a reasonable and natural consequence of such breach of contract, com- municated to or known by the defendants. The judge ought, therefore, to have told the jury that, upon the facts then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. There must therefore be a new trial in this case. Rule absolute. m GUETZKOW BROTHERS CO. v. A. H. ANDREWS & CO. Supreme Court of Wisconsin, 1896. [Reported 92 Wis. 214.] This action was brought by plaintiff to recover SI, 978, alleged to be due from the defendant for show cases and other articles manufactured for it, which articles it had contracted to furnish exhibitors at the World's Fair. The answer of the defendant contained a denial of liability, and set up as a defense that the articles were not constructed or furnished according to the contract, and were not reasonably worth the contract price, or as much as the payments that had been made. It counterclaimed for the amount of the overpayments, and also for damages, claiming as such damages the loss of profits it would have made if plaintiff had fully complied with the contract, and placing such damages at the difference between the price it agreed to pay plaintiff and the amount it was to receive from the exhibitors; the advance being from 100 to 150 per cent. The case was tried by a referee, who found that the goods were all manufactured and furnished substantially in accordance with the contract, except in some small particulars, for which a rebate of the purchase price was allowed. The evidence shows that the goods were manufactured for a special purpose, that there was no market price for such goods, and that plaintiff knew, when it contracted AAath defend- ant, that it was under contract to furnish the goods to exhibitors at the World's Fair, and that the contract was made by it with plaintiff to enable it to carry out the contract previously made by it with such exliibitors. The findings of the referee were confirmed by the court, SECT. IV.] GUETZKOW BROS. CO. V. A. H. ANDREWS & CO. 769 and judgment was entered in plaintiff's favor, from which this appeal was taken. Marshall, J. . . . All rules for the assessment of damages for the breach of contracts are supposed to be founded upon principles of natural justice, the intention being to keep strictly within such princi- ples. It is on that ground that the general rule established for the as- sessment of damages for the breach of an executory contract to sell and deliver property, i. e., the difference between the contract price and the market value at the time and place of the delivery, in order to work out natural justice in case of special circumstances, must necessarily be broadened out to fit such circumstances, but only when such special circumstances are shown to have been brought home to the knowledge of both parties at the making of the contract. The leading case of Hadley v. Baxendale, 9 Exch. 341, states the rule applicable to a case of this kind, and it has been repeatedly approved by this court. . . . To the same effect are Borries r. Hutchinson, 18 C. B. (N. S.) 445; Messmore v. N. Y. S. & L. Co., 40 N. Y. 422; Booth v. Spuyten Duy\al R. M. Co., 60 N. Y. 487; McHose v. Fuhner, 73 Pa. St. 365; Po- poskey v. Munkwitz, 68 Wis. 322; Cockburn v. Ashland L. Co., 54 Wis. 619, and substantially all the authorities on the subject; and if all were collated no more light could be tlu-own on the general principle involved. But the' question arises whether the price to the first vendee must be communicated to the second vendor in order that he may be charged with the special rule of damages at the suit of his vendee, in case of a breach on the part of such second vendor; and upon the precise point here presented the authorities are not numerous. In Cockburn v. Ashland L. Co., 54 Wis. 619, Mr. Justice Lyon said: "To bind the defendant by a price stipulated for on a resale, he must have had notice of such resale when the contract was made, though, perhaps, not of the contract price." But it must be observed that in the case then under consideration the circumstance of extraordinary profits was not present; that is, the evidence did not disclose but that the profits were such as were reasonable and might reasonably have been in contemplation by both parties to the transaction when the contract was made. The question has been many times considered in the courts of Eng- land, and may be said to have been long settled, that the second vendor is only bound by the terms of the contract with the second ^•endee so far as communicated to him or he had reasonable ground to know the same by inference from facts brought to his knowledge. All of the cases refer to and are founded upon the general principle laid down in Hadley V. Baxendale, 9 Exch. 341. In Borries v. Hutchinson, 18 C. B. (N. S.) 445, these circumstances were present: There was a Russian contract between the plaintiff' and a third person as his vendor. The fact of the contract was made known to defendant but not its terms. He knew the goods were to be delivered in Russia, to be transferred there by rail. 770 GUETZKOW BROS. CO. V. A. H. ANDREWS & CO. [cHAP. VI. He was familiar with the fact that freight rates and insurance rates were higher there in winter than in summer. He agreed to deUver the goods in summer, but did not deliver until later, so that the winter rates of freight and insurance applied. It was held that he was bound to know under the circumstances, at the time he made the contract, that the late delivery would necessitate a loss on the plaintiff by reason of increased freight and insurance charges. Hence, he was charged with such loss, because so much of the contract was made known to him as charged him with knowledge that the loss by increased freight and insurance rates would naturally follow such late delivery. Plaintiff was liable to his Russian vendee for certain penalties for failure to deliver the goods at the time agreed upon; but defendant was not held liable for such penalties, because knowledge of the terms of the Russian contract in that regard was not brought home to him, nor facts that would reasonably have suggested that element of probable damages in case of a breach. To the same effect are Elbinger Actien-Gesellschaft v. Armstrong, L. R. 9 Q. B. 473; Grebert-Borgnis v. Nugent, 15 Q. B. Div. 85. In this last case there was a contract between plaintiff and a third person, as his vendee, for goods of a particular kind, which contract was made kno\\'Ti to him. The contract was the same as between plaintiff and defendant, except as to price. The latter contract was broken. There was no market price for the goods. There was no question but that the difference in price was no more than a reasonable profit. He was held liable for such profits as one of the natural consequences of the breach of so much of the contract as was made knouTi to him. Brett, M. R., stated the rule thus: " It seems to me, according to what has been decided, that the original vendor in such a case is only liable, in case of a breach, for the natural consequences of so much of the sub- contract as was made known to him. If he were told, for instance, that the contract was that, if I do not supply my purchaser with the goods which I am ordering from him, my Aendor, I shall have to pay my pur- chaser £4 a ton for every ton which I do not deliver; then, if there be a breach of the contract, the original vendor would have to pay the £4 a ton. But, supposing there was in the subcontract between my- self and my purchaser, not only that I should pay £4 a ton, but, besides, that I should be liable to a penalty of £5 a day ; although that is in the subcontract, yet if that part of it was not made knowTi to the original vendor, then for that reason, and because it is not a natural consequence of his bargain, he would not be liable to pay the penalty of £5 a day. It seems to me that the cases establish that the original vendor is to be liable to so much of the subcontract as was made known to him, but only to that extent." To the same effect are the American authorities, all substantially adopting the rule of Hadley v. Baxendale. They are numerous, and it is sufficient to refer to Poposkey v. Munkwitz, 68 Wis. 322, and Cockburn v. Ashland L. Co., 54 Wis. 619, in our own court. Differences may be found in the interpretations which courts have SECT. IV.] GUETZKOW BROS. CO. V. A. H. ANDREWS & CO. 771 put on the rule of Hadley r. Baxendale; but they generally hold that the price in the first contract need not be communicated, as intimated in Cockburn v. Ashland L. Co., in this court. They proceed upon the principle all of them, that knowledge of the first contract is sufficient to bring home to the second vendor, as an inference of fact, knowledge that the price in the first contract is sufficiently in advance of the price in the second contract to allow a reasonable profit to the second vendee. We venture to say that no case can be found, where the price was out of all proportion to anything that might be considered reason- able in order to give a fair profit, that the court has held that such unreasonable profits may be recovered as damages, where knowledge of such unreasonable profits, as a special circumstance, was not knowTi to both parties at the time of the making of the contract. The most that is held in Booth v. Spuyten Duyvil R. M. Co., 60 N. Y. 487, cited with confidence by appellant, is that the second vendor is bound by the price his vendee is to recei\e, unless it is shown that such price is extravagant or of an unusual or exceptional character. That is as far as the New York courts have gone. Church, C. J., said: "There is considerable reason for the position that, where the vendor is distinctly informed that the purchase is made to enable the vendee to fulfill a previous contract, and he knows there is no market price for the article, he assumes the risk of being bound by the price named in such pre\aous contract, whatever it may be." But no such rule was adopted, and no case was there cited to support such a rule, and we are unable to see wherein such reason exists. It could only be consistent with the theory that the law aims at complete compensation for all losses, including gains prevented as well as losses sustained, without the im- portant condition, requisite to give the rule the basic foundation upon which all rules for the assessment of damages are supposed to rest, that of natural justice, which condition must always be considered in order that the true rule may be correctly stated, — that is, that the dam- ages must be such as can be fairly supposed to have entered into the contemplation of both parties. Further discussion of the subject might be interesting but is not necessary to a decision of this case; and the only excuse for extending it thus far is the fact that it does not appear that the precise question here presented has heretofore been decided by this court. We state the conclusion arrived at thus : When the vendor is informed that the purchase is made to enal)le the vendee to fulfill a contract which he has theretofore made with a third person, and such vendor furnishes the goods, but not according to contract, and there is no market price for such goods, and the pur- chaser furnishes such goods to such third person, but is not able to recover of him the price stipulated in the contract with such third person, by reason of the breach of the contract committed by such vendor, in determining the damages for such breach such vendor is 772 BRADLEY V. CHICAGO, MIL. & ST. PAUL RY. CO. [ciIAP. VI. bound by the price his vendee was to receive from such third person, whether such price was communicated to him at the time of the making of the contract with his vendee or not, unless the price was such as to yield an extraordinary and unusual profit, which could not reasonably have been presumed to have been in contemplation by him at the time he made his contract. In such a case he would not be bound beyond such sum as would yield a reasonable and fair profit to his vendee. Ordinarily, the price to the first vendee would, presumptively, be held to be a reasonable price; but if the facts in any given case are such as to show such price to yield an extravagant or extraordinary profit, the second vendor will not be bound by such price, in the absence of evidence of previous knowledge, as before stated; and, in order to assess the damages, the court must be put in possession of sufficient evidence to enable it to arrive at a conclusion in respect to what would amount to a reasonable profit on the transaction. It follows from the foregoing that there was no evidence before the referee by which he could have assessed in plaintiff's favor damages for loss of profits for the breach of the contract between it and the defend- ant, if there was a breach. After a careful examination of the evidence, we are unable to conclude that the trial court erred in refusing to set aside the referee's findings of fact on the question of whether the contract was substantially complied with or not. Under repeated decisions of this court, to warrant setting aside findings of fact as against evidence, it must appear that they are against the clear preponderance of the evidence. Briggs v. Hiles, 87 Wis. 438; Bacon v. Bacon, 33 Wis. 147; Lord v. Devendorf, 54 Wis. 491 ; Messersmith v. Devendorf, 54 Wis. 498. Moreover, it is doubtful whether the bill of exceptions is sufficiently certified to enable the court to review the question of whether the evidence supports the findings or not. It follows, from the foregoing, that the judgment of the superior court should be affirmed. BRADLEY v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO. Supreme Court of Wisconsin, 1896. [Reported 94 Wis. 44.] PlaintifP, on the 4th day of June, 1892, delivered some boxes of goods, said to contain glass, to the defendant at Columbus, Wisconsin, to be sliipped over its line of railway to Deerfield, Wisconsin. No infor- mation was given to defendant's agent or otherwise that such boxes SECT. IV.] BRADLEY V. CHICAGO, MIL. & ST. PAUL RY. CO. 773 contained property other than glass, or of any special use for which such goods were intended. Plaintiff was a travelling photographer, and the boxes contained implements and materials for use in his busi- ness. He intended to engage in such business at Deerfield immediately on the arrival of his goods at that point, and, anticipating such arrival, he went to Deerfield on the day the goods were delivered to defendant for shipment, and arranged for pursuing his calling upon their arrival. After waiting a sufficient length of time for the arrival of the goods at their destination if shipped direct and in the regular course of business, and failing to receive the same, plaintiff informed defendant's agent at Columbus of the character of such goods, and his purpose in shipping the same to Deerfield. Five days thereafter was a sufficient length of time for defendant, with the exercise of reasonable diligence, to have delivered the goods at Deerfield. Delivery was not made till ten days after the expiration of such period. The jury found specially the facts as above stated, except as they appeared uncontro verted upon the evidence, and that plaintiff sustained special damages to the amount of seventy-five cents freight charges for shipping and reshipping goods from Milwaukee, $6.50 for rent of a room and board while plaintiff was unreasonably delayed by failure to deliver the goods, and $80 for loss of profits in his business during such time. Defendant moved the court on the special verdict for judgment, which motion was denied, and defendant excepted. Plaintiff's attorneys moved thte court for judgment in his favor for the damages found by the jury and costs, which motion was granted, and the defendant appealed. Marshall, J. The amount involved in this action exclusive of costs, being less than $100, as shown by the judgment, only such questions of law can be considered as are certified to this court for that purpose by the trial court. Such questions are three in number, and in sub- stance as follows : (1) The fact being that the defendant did not, at the time of the shipment of plaintiff's goods, know of the purpose, character, and quality of such goods, is it liable in this action? (2) Some time after the goods were shipped, and while they were in transit, plaintiff" having notified the defendant's agent at Columbus, Wisconsin, of the character and quality of such goods, and the necessity of plaintiff to have such goods at Deerfield, Wisconsin, did such notice operate to modify the original contract between plaintiff and defend- ant, or impose any liability upon the railway company for damages in the event of tlie goods not being delivered within a reasonable time after such notice? (3) The jury having found that defendant was not informed, at the time the goods were shipped, of their character and intended use, but was so informed some time thereafter, and that there was an un- reasonable delay in the delivery thereof after su(,"h notice, during which time plaintiff sustained loss of profits in his business, as found by the 774 LONERGAN 1'. WALDO. [chap. YI. jury, on account of such delay, is the plaintiff entitled to recover of the defendant the amount of such loss? It is only necessary to apply a familiar principle of law in order to answer these questions. No principle of law is more firmly established than that actionable damages for breach of contract are limited to such as may be reasonably considered to have been in contemplation by the parties, at the time of the making of such contract, as the 'probable result of the breach of it. Guetzkow Bros. Co. v. A. H. Andrews & Co., 92 Wis. 214. Such principle rules this case, unless there is some exception thereto which will fit the special circumstances found by the jury and expressed in the questions submitted. That was obviously the view the learned circuit judge took of the matter; hence the necessity for the second question, i. e. — Did notice to the appellant of the circum- stances which rendered the damages found by the jury a probable result of the late delivery operate to modify the original contract be- tween the parties, so as to make the appellant liable for such damages? Counsel for respondent failed to bring to our attention any authority to sustain such exception to the general rule, and, indeed, we are satis- fied that none can be found, and that the exigency of this particular case is not sufficiently serious and pressing to warrant us in disturbing the settled law regarding the subject, as counsel suggests that we should do. In Missouri, K. & T. R. Co. v. Belcher (Tex. Sup.), 35 S. W. Rep. 6, cited by appellant's counsel, the same question was considered, and it was there held, in effect, that notice to the carrier, after the date of the contract, that special damages will arise from delay in the shipment, in time for him to prevent such delay, does not render such carrier liable for such damages. It follows from the foregoing that we answer each of the questions certified in the negative. LONERGAN v. WALDO. Supreme Judicial Court of Massachusetts, 1901. [Reported 179 Mass. 135.] Contract by a contractor to lay drain pipe to recover !S!1,240, the expense of re-digging a ditch, washed in by a rain storm by reason of the delay caused by the failure of the defendant to deliver one hundred and fifty feet of six-inch drain pipe ordered of him and paid for by the plaintiff, the defendant having agreed to deliver the pipe after notice from the plaintiff that it was needed at once and that, if a rain storm occurred, the ditch would cave in. Writ dated January 27, 1899. At the trial in the Superior Court, before Richardson, J., the judge SECT. IV.] LONERGAN V. WALDO. 775 took the case from the jury and, in doing so, ruled as follows : " I do not think that the plaintiff can recover in this action, which is an action of contract, for the damage done to the trench or ditch by the rain storm, or for the expenses incurred in repairing that damage. The plaintiff's counsel says that is the damage which he seeks to recover for, and the other damage will be so slight that he does not care to go to the jury upon it. In view of this statement I will order a verdict for the defend- ant, and the plaintiff excepts." The verdict was entered as directed; and the plaintiff alleged excep- tions. The evidence is fully described in the opinion of the court. Barker, J. The question whether the verdict was ordered rightly must be considered upon the state of facts most favorable to the plaintiff, which fairly could have been found if the case had been left to the jury. He contended that he was entitled to large damages because of the caving in of a ditch resulting from the non-delivery of six-inch drain pipe bought of the defendant on May 1, 1893, for the price of $13.50, then paid. From his testimony it could be found that he first ordered the pipe on Thursday, April 28, by telephone, and that in giving the order he said that he was out of such pipe, and had his ditch all ready waiting for it, and a great deal of material on the bank, and that he could not leave it there very long; also that the answer to his order was that the pipe would be sent in the afternoon; that the pipe did not come, and the plaintiff several times told the defendant's agent over the telephone that it was necessary that the pipe should come out; that if a rain storm should come there was no possible chance of saving the ditch, as they were down twenty-four feet and there was a large amount of material on the banks. The plaintiff further testified that on Monday, May 1, he was in- formed that the trouble was that he had reached the limit of his credit with the defendant; that he then went to the latter's office, was referred from one man to another and another, to the last of whom he told the dangerous condition he was in at the work and how much he was in need of the pipe; that he told them the condition of the ditch, that it was down twenty-four feet, and about nine or ten feet wide, and would certainly cave in if there should be a rain storm; that they desired cash for any more goods, and thereupon he gave a check for the price of the pipe, and asked if they would attend to it right away; that they said that they would, that the pipe would be out there perhaps before he was, and thereupon he went back to the work; that at noon on Monday the pipe had not reached the work, and he then telephoned again and asked where the pipe was, and was answered that it would be out there in the afternoon sure; that he then waited until Tuesday morning, and then asked by telephone why the defendant would not send the pii)e, saying that the defendant knew the plaintiff's condition at the work. 776 LONERGAN V. WALDO. [cHAP. VI. and what the consequence would be, and was answered that the de- fendant would immediately attend to it; that no pipe came on that day, Tuesday, May 2, and none came on Wednesday, May 3, until after the plaintiff's men had gone home; and that the pipe which so came was not six-inch pipe as ordered and purchased but eight-inch pipe which he could not place in the ditch, and which he would riot be allowed to use in it; also that a rain storm came on during Wednesday night, and on Thursday about noon the ditch was washed in, at a loss to him of about $1,240. .' . . If goods sold and paid for are not delivered the measure of damages usually is their market value at the time and place at which they should have been delivered, with interest thereon. Cutting v. Grand Trunk Railway, 13 Allen, 381, 385. But special circumstances may make the vendee's actual loss greater than the sum given by this common rule. When oA\ing to special circumstances such greater damages are in fact sustained it is clear that they cannot be recovered of the party in fault, unless the s]5ecial circumstances which made it reasonable to expect that the greater damages would naturally ensue were, at the time when the contract was made, within the knowledge of both parties. Batchel- der r. Sturgis, 3 Cush. 201, 204. Cutting v. Grand Trunk Railway, ubi supra. Scott v. Boston & New Orleans Steamship Co. 106 Mass. 468, 471. Harvey v. Connecticut & Passumpsic Rivers Railroad, 124 Mass. 421. Swift River Co. v. Fitchburg Railroad, 169 Mass. 326. When the special circumstances are known to both parties, it is obvi- ous that each may have contracted with reference to them ; and that, if such was in fact the case, the party in fault may be held justly to make good to the other whatever damages he has sustained which were the reasonable and natural consequences of a breach under the circumstance so known and with reference to which the parties acted. In such cases the larger damages may be recovered, as having been in the contempla- tion of both parties, and as naturally resulting, under the special cir- cumstances, from the breach itself. Cutting v. Grand Trunk Railway, ubi supra. Townsend v. Nickerson Wharf Co. 117 Mass. 501, 503. Manning r. Fitch, 138 Mass. 273, 276. But it is equally obvious that when special circumstances exist and are known to both parties a vendor may decline to assume any larger responsibility for a breach of his engagement than that to which he would be subjected by the common rule of damages. If, in the present instance, the defendant upon being told of the condition of the ditch had notified the plaintiff that if the pipe should not be delivered seasonably the defendant would not be answerable for the loss if the ditch should cave, it would be unjust to hold the defendant for the loss. The defendant cannot be so held, justly, unless at the time of the sale he in substance assented that he would be so held. It is not contended that there was an express assent. Therefore the vital question is whether such assent could have been found from the SECT. IV.] GLOBE REFINING CO. V. LANDA COTTON CO. 777 evidence. When one of two contracting parties stands in such a rela- tion as compels him to render the ser\ace for which he contracts, as for instance in that of a common carrier, it might be unfair to infer, from his undertaking to do the service with knowledge of the special circum- stances and without a protest that he assented to any unusual obliga- tion. Upon this question we express no opinion. But in the present case the defendant was under no obligation to sell the pipe. He could contract or not as he chose. If, knowing all the circumstances, the defendant sold the pipe without any protest or statement that he would in no event be liable for a caving of the ditch, he might be found by the jury to have assented to be bound to pay damage for its ca\ang if that should be caused by breach of his contract to deliver the pipe. See Grebert-Borgnis v. Nugent, 1.5 Q. B. D. 85, 89; Mavme, Damages, (5th ed.) 41; Home v. Midland Railway, L. R. 8 C. P. isi, 141; Benjamin, Sales, (6th Am. ed.) §§ 872, 874. Therefore, upon the evidence, it was wrong to direct a verdict for tlie defendant. Exceptions sustained. GLOBE REFINING CO. v. LANDA COTTON CO. Supreme Court of the Ignited States, 1903. [Reported 190 U. S. 540.] Holmes, J. This is an action of contract brought by the plaintiff in error, a Kentucky corporation, against the defendant in error, a Texas corporation, for breach of a contract to sell and deliver crude oil. The defendant excepted to certain allegations of damage, and pleaded that the damages had been claimed and magnified fraudulently for the purpose of giving the L^nited States Circuit Court jurisdiction, when in truth they were less than two thousand dollars. The judge sustained the exceptions. He also tried the question of jurisdiction before hearing the merits, refused the plaintiff a jury, found that the plea was sustained and dismissed the cause. The plaintiff excepted to all the rulings and action of the court, and l)rings the case here b}^ writ of error. If the rulings and findings were right there is no ques- tion that the judge was right in dismissing the suit, North American Transportation & Trading Co. x. Morrison, 178 U. S. 262, 267, but the grounds upon which he went are re-examinable here. Wetmore v. Rymer, 169 U. S. 115. The contract was made through a broker, it would seem by writing, and at all events was admitted to be correctly stated in the following letter : 778 GLOBE REFINING CO. V. LANDA COTTON CO. [CIL\P. VI. " Dallas, Texas, 7/30/97. " Landa Oil Company, New Braunfels, Texas. "Gentlemen: Referring to the exchange of our telegrams to-day, we have sold for your account to the Globe Refining Company, Louis- ville, Kentucky, ten (10) tanks prime crude C/S oil at the price of 15^ cents per gallon of 73^2 pounds f. o. b. buyers' tank at your mill. Weights and quality guaranteed. "Terms: Sight draft without exchange b/ldg. attached. Sellers paying commission. " Shipment : Part last half August and balance first half September. Shipping instructions to be furnished by the Globe Refining Company. "Yours truly, " Thomas & Green, as Broker." Having this contract before us, we proceed to consider the allegations of special damage over and above the difference between the contract price of the oil and the price at the time of the breach, which was the measure adopted by the judge. These allegations must be read with care, for it is obvious that the pleader has gone as far ag he dared to go and to the verge of anything that could be justified under the contract, if not beyond. It is alleged that it was agreed and understood that the plaintiff would send its tank cars to the defendant's mills, and that the defend- ant promptly would fill them with oil, (so far simply following the contract,) and that the plantiff sent tanks. "In order to do this the plaintiff was under the necessity of obligating itself unconditionally to the railroad company (and of which the defendant had notice) to pay to it for the transportation of the cars from said Louisville to said New Braunfels in the sum of nine hundred dollars," which sum plaintiff had to pay, "and was incurred as an advancement on said oil contract." This is the first item. The last words quoted mean only that the sum paid would have been allowed by the railroad as part payment of the return charges had the tanks been filled and sent back over the same road. Next it is alleged that the defendant, contemplating a breach of the contract, caused the plaintiff to send its cars a thousand miles, at a cost of a thousand dollars ; that defendant cancelled its contract on the second of September, but did not notify the plaintiff until the fourteenth, when, if the plaintiff had known of the cancellation, it would have been supplying itself from other sources; that plaintiff (no doubt defendant is meant) did so wilfully and maliciously, causing an unnecessary loss of two thousand dollars. Next it is alleged that by reason of the breach of contract and want of notice plaintiff lost the use of its tanks for thirty days — a loss estimated at seven hundred dollars more. Next it is alleged that the plaintiff had arranged with its o\\ti customers to furnish the oil in SECT. IV.] GLOBE REFINING CO. V. LANDA COTTON CO. 779 question within a certain time, which contemplated sharp compliance with the contract by the defendant, "all of which facts, as abo^•e stated, were well known to the defendant, and defendant had con- tracted to that end with the plaintiff." This item is put at seven hundred and forty dollars, with a thousand dollars more for loss of customers, credit and reputation. Finally, at the end of the petition it is alleged generally that it was knowTi to defendant and in contem- plation of the contract that plaintiff would have to send tanks at great expense from distant points, and that plaintiff " was required to pay additional freight in order to rearrange the destination of the various tanks and other points." Then it is alleged that, by reason of the defendant's breach, the plaintiff had to pay three hundred and fifty dollars additional freight. Whatever may be the scope of the allegations which we have quoted, it will be seen that none of the items was contemplated expressly by the words of the bargain. Those words are before us in writing, and go further than to contemplate that when the deliveries were to take place the buyer's tanks should be at the defendant's mill. Under such circumstances the question is suggested how far the express terms of a writing, admitted to be complete, can be enlarged by averment and oral evidence, and if they can be enlarged in that way, what aver- ments are sufficient. When a man commits a tort he incurs by force of the law a liability to damages, measured by certain rules. When a man makes a contract he incurs by force of the law a liability to dam- ages, unless a certain promised event comes to pass. But unlike the case of torts, as the contract is by mutual consent, the parties themselves, expressly or by implication, fix the rule by which the damages are to be measured. The old law seems to have regarded it as technically in the election of the promisor to perform or to pay damages. Bromage v. Genning, 1 Roll. R. 368; Hulbert v. Hart, 1 Vern. 133. It is true that as people when contracting contemplate performance, not breach, they commonly say little or nothing as to what shall happen in the latter event, and the common rules have been worked out by common sense, which has established what the parties probably would have said if they had spoken about the matter. But a man never can be absolutely certain of performing any contract when the time of performance arrives, and in many cases he obviously is taking the risk of an event which is wholly or to an appreciable extent beyond his control. The extent of liability in such cases is likely to be within his contemplation, and whether it is or not, should be worked out on terms which it fairly may be presumed he would have assented to if they had been presented to his mind. For instance, in the present case the defendant's mill and all its oil might have burned before the time came for delivery. Such a misfortune would not have been an excuse, although probably it would have prevented performance of the contract. If a contract is broken the measure of damages generally is the same, whatever the cause of 780 GLOBE REFINING CO. V. LANDA COTTON CO. [CHAP. VI. the breach. We have to consider therefore Mhat the plaintiff would have been entitled to recover in that case, and that depends on what liability the defendant fairly may be supposed to have assumed con- sciously, or to have warranted the plaintiff reasonably to suppose that it assumed, when the contract was made. This point of view is taken by implication in the rule that "a person can only be held to be responsible for such consequences as may be reasonably supposed to be in the contemplation of the parties at the time of making the contract." Grebert-Borgnis v. Nugent, 15 Q. B. D. 85, 92; Home v. Midland Ry. Co., L. R. 7 C. P. 583, 591; Hadley v. Baxendale, 9 Exch. 341, 354; Western Union Telegraph Co. v. Hall, 124 U. S. 444, 456; Howard v. Stillwell & Bierce Manufacturing Co., 139 U. S. 199, 206; Primrose r. Western Union Telegraph C^o., 154 U. S. 1, 32. The suggestion thrown out by Bramwell, B., in Gee r. Lancashire & Yorkshire Ry. Co., 6 H. & N. 211, 218, that perhaps notice after the contract was made and before breach would be enough, is not accepted by the later decisions. See further Hydraulic Engineering Co. v. McHaffie, 4 Q. B. D. 670, 674, 676. The consequences must be con- templated at the time of the making of the contract. The question arises then, what is sufficient to show that the conse- quences were in contemplation of the parties in the sense of the vendor taking the risk? It has been held that it may be proved by oral evi- dence when the contract is in writing. Messmore v. New York Shot & Lead Co., 40 N. Y. 422. See Sawdon r. Andrew, 30 Law Times, N. S. 23. But, in the language quoted, with seeming approbation, by Blackburn, J., from Mayne on Damages, 2d ed. 10, in Elbinger Actien-Gesellschaft v. Armstrong, L. R. 9 Q. B. 473, 478, "it may be asked, with great deference, whether the mere fact of such consequences being communicated to the other party will be sufficient, without going on to show that he was told that he would be answerable for them, and consented to undertake such a liabilit}'?" Mr. Justice Willes answered this question, so far as it was in his power, in British Columbia Saw-Mill Co. v. Nettleship, L. R. 3 C. P. 499, 508: "I am disposed to take the narrow view, that one of two contracting parties ought not to be allowed to obtain an advantage which he has not paid for. ... If [a lialjility for the full profits that might be made by ma- chinery which the defendant was transporting, if the plaintiff's trade should prove successful and without a rival] had been presented to the mind of the ship OA\Tier at the time of making the contract, as the basis upon which he was contracting, he would at once have rejected it. -Vnd, though he knew from the shippers the use they intended to make of the articles, it could not be contended that the mere fact of knowledge, without more, would be a reason for imposing upon him a greater degree of liability than would otherwise htive been cast upon him. To my mind, that leads to the inevitable conclusion that the mere fact of knowledge cannot increase the liability. The knowledge must be SECT. IV.] GLOBE REFINING CO. V. LANDA COTTON CO. 781 brought home to the party sought to be charged, under such circum- stances that he must know that the person he contracts with reasonably beheves that he accepts the contract with the special condition at- tached to it." The last words are quoted and reaffirmed by the same judge in Home v. Midland Ry. Co., L. R. 7 C. P. 583, 591; s. c, L. R. 8 C. P. 131. See also Benjamin, Sale, 6th Am. ed. § 872. It may be said with safety that mere notice to a seller of some interest or probable action of tJie buyer is not enough necessarily and as matter of law to charge the seller with special damage on that account if he fails to deliver the goods. With that established we recur to the allega- tions. With regard to the fii-st it is obvious that the plaintiff was free to bring its tanks from where it liked — a thousand miles away or an adjoining yard — so far as the contract was concerned. The allegation hardly amounts to saying that the defendant had notice that the plaintiff was likely to send its cars from a distance. It is not alleged that the defendant had notice that the plaintiff had to bind itself to pay nine hundred dollars, at the time when the contract was made, and it nowhere is alleged that the defendant assumed any liability in respect of this uncertain element of charge. The same observations may be made with regard to the claim for loss of use of the tanks and to the final allegations as to sending the tanks from distant points. It is true that this last was alleged to have been in contemplation of the contract, if we give the plaintiff the benefit of the doubt in construing a some- what confused sentence. But having the contract before us we can see that this ambiguous expression cannot be taken to mean more than notice, and notice of a fact which would depend upon the accidents of the future. It is to be said further wdth regard to the foregoing items that they were the expenses which the plaintiff was willing to incur for perform- ance. If it had received the oil these were deductions from any profit which the plaintiff would have made. But if it gets the dift'erence be- tween the contract price and the market price it gets what represents the value of the oil in its hands, and to allow these items in addition would be making the defendant pay twice for the same thing. It must not be forgotten that we are dealing with pleadings, not evidence, and with pleadings which, as we have said, evidentl\- put the plaintiff's case as high as it possibly can be put. There are no inferences to be dra"s\'n, and therefore cases like Hammond r. Bussey, 20 Q. B. D. 79, do not apply. It is a simple question of allegations which, by de- clining to amend, the plaintift' has admitted that it cannot reinforce. This consideration applies with special force to the attempt to hold the defendant liable for the breach of the plaintift"'s contract with third persons. The allegation is that the fact that the plaintiff had contracts over was well known to the defendant, and that "defendant had con- tracted to that end with the plaintiff." Whether, if we were sitting as a jury, this would warrant an inference that the defendant assun ed an 782 C. B. NASH CO. V. WESTERN UNION TELEGRAPH CO. [CHAP. VI. additional liability we need not consider. It is enough to say that it does not allege the conclusion of fact so definitely that it must be as- sumed to be true. With the contract before us it is in a high degree improbable that any such conclusion could have been made good. The only other allegation needing to be dealt with is that the defend- ant maliciously caused the plaintiff to send the tanks a thousand miles, contemplating a breach of its contract. So far as this item has not been answered by what has been said, it is necessary only to add a few words. The fact alleged has no relation to the time of the contract. Therefore it cannot affect the damages, the measure of which was fixed at that time. The motive for the breach commonly is immaterial in an action on the contract. Grand Tower Co. v. Phillips, 23 Wall. 471, 480; Wood's Mayne on Damages, § 45; 2 Sedgwick, Damages, 8th ed. § 603. It is in this case. Whether under any circumstances it might give rise to an action of tort is not material here. See Emmons v. Alvord, 177 Massachusetts, 466, 470. The allowance of the exceptions made the trial of the plea superfluous. If the question of fact was to be tried as to whether the amount of damages that fairly could be claimed was sufficient to give the court jurisdiction, the court had authority to try it. Wetmore v. Rymer, 169 U. S. 115, 121; Act of March 3, 1875, c. 135 § 5, 18 Stat. 472. In coming to his conclusion, apart from what was apparent on the face of the pleadings, the judge no doubt was influenced largely by a letter from the plaintiff to the defendant, enclosing an itemized bill for one thousand and twenty-one dollars and twenty-eight cents. This letter suggested no further claim except for " any additional mileage we may have to pay." Of course, if the judge accepted the plaintiff's own view of its case as expressed here, the pretence of jurisdiction was at an end. Some attempt was made to make out this was an offer of compromise, and inadmissible. But the letter did not purport to be anything of the sort, it was an out and out adverse demand. I Judgment affirmed. C. B. NASH CO. V. WESTERN UNION TELEGRAPH CO. Supreme Court of Nebraska, 1915. [Reported 152 N. W. Rep. 387.] Barnes, J. Appeal from a judgment of the district court of Douglas county, in an action for damages for a failure to transmit and deliver a telegram. The facts alleged in plaintiff's petition may be briefly stated as follows: At 10:10 o'clock a.m., on Thursday, January 30, 1908, the plaintiff, the C. B. Nash Company, delivered to the Western SECT. IV.] C. B. NASH CO. V. WESTERN UNION TELEGRAPH CO. 783 Union Telegraph Company, at its main office in the city of Omaha, the following telegram: " Shearson, Hammill & Company, 71 Broadway, New York, N. Y. Outbreak tapestry preternatural. Collect. [Signed] The C. B. Nash Company." Across the face of the telegram was written in red ink, "Rush." The message when translated reads: "Sell 300 American Smelting & Refining Company conmion stock at 683/^." At the time when the message was delivered to the telegraph com- pany, the plaintiff had on deposit with Shearson, Hammill & Co., 300 shares of the stock designated, and wished its brokers to sell the same as directed by the telegram. Had the defendant promptly transmitted and delivered the message, Shearson, Hammill & Co. would have sold the stock at a price equal to or greater than that named. On February 1, 1908, plaintiff telegraphed Shearson, Hammill & Co. to ascertain if the sale had been made, and was informed that the order to sell had not been received. On the 3d of February, 1908, plaintiff sent them a duplicate of the original message, which was received by them on the 5th day of February, 1908. Meanwhile the price of said stock had declined to $62.50 per share, at which price the stock was sold, and plaintiff was damaged, by the failure of the telegraph company to promptly transmit and deliver the message, in the sum of SI, 986, for which, with interest, the plaintiff prayed judgment. The defend- ant's answer was a general denial. On the trial the court limited the measure of damages to the difference between the price at which the stock would have sold on January 30, 1908, had the telegram been duly transmitted and delivered, and the price at which the plaintiff could have sold the stock on February 3, 1908. The jury returned a verdict for the plaintiff for $600, with interest amounting to $199, or a total of $799. Judgment was rendered on the verdict, and the defend- ant has appealed. ... Defendant's first contention is that damages for loss of an expected sale or purchase, caused by a failure to deliver a purely cipher telegram, cannot be recovered; and second, that, if any recovery could be had, the damages would be only nominal. Appellant supports these con- tentions by a long list of authorities, commencing with Hadley v. Baxendale, 9 Exch. (Eng.) *341, 26 Eng. Law & Eq. 398; and it may be conceded that, if the facts justified the application of the rules invoked by the defendant, these contentions should be sustained. From an examination of the record, we are constrained to hold that the rule contended for by the defendant should not be applied in this case. Section 7406, Rev. St. 1913, provides, among other things, that a telegraph company shall be liable for the nondelivery of and for all 784 C. B. NASH CO. V. WESTERN UNION TELEGRAPH CO. [cHAP. VI. mistakes in transmitting messages by any person in its employ. This statute was construed in Kemp r. Western Union Telegraph Co., 28 Neb. 661, 44 N. W. 1064, 26 Am. St. Rep, 363, Western Union Telegraph Co. v. Kemp, 44 Neb. 194, 62 N. W. 451, 48 Am. St. Rep. 723, and again in American Express Co. r. Postal Telegraph-Cable Co., 97 Neb. , 151 N. W. 240. In our opinion the e\adence in this case is sufficient to bring it within the rule announced in Smith v. Western Union Telegraph Co., 80 Neb. 395, 114 N. W. 228, Western Union Telegraph Co. v. Church, 3 Neb. (Vnoi.) 22, 90 N. W. 878, 57 L. R. A. 905, Baldwin v. United States Telegraph Co., 45 N. Y. 744, 6 Am. Rep. 165, and Brooks & Son v. Western Union Telegraph Co., 26 Utah, 147, 153, 72 Pac. 499, 500. In the case last cited it was said : "But the authorities hold, almost uniformly, that it is sufficient to create a liability on the part of a company for all damages directly and proximately resulting from the negligent acts of its agents in failing to transmit a message in the form in which it is delivered, or in omitting to send it at all, provided the message discloses enough of its nature and importance to put an ordinary and prudent person upon inquiry. . . . The first message herein showed on its face that it referred to a commercial transaction. This fact, together with the fact that re- spondent B. B. Brooks endeavored to send a second message relating to the same matter, with the word 'Rush' written conspicuously thereon, was notice to the appellant' that these messages were impor- tant; and, if appellant had desired any further information on this point, it no doubt could have obtained it by inquiring of Brooks when he delivered the message to appellant for transmission over its wires." The message in question in this case on its face, though in cipher, would furnish a person of ordinary prudence notice that it was impor- tant ; and this fact, taken together with the course of business that had obtained between the plaintiff and the defendant company for many years, was sufficient notice to the defendant that substantial loss might follow its failure to promptly transmit and deliver the message to Shearson, Hammill & Co. We are therefore of opinion that the district court did not err in re- fusing to sustain the defendant's motions and in submitting the case to the jury. A verdict having been rendered in favor of the plaintiff upon this evidence and the instructions of the court, we feel con- strained to sustain the verdict. We are aware that the question is a close one; but, on an examination of the whole record, we are of opinion that the defendant had a fair trial, that it was chargeable with notice of the importance of the plaintiff's message, and that substantial loss would follow a failure to promptly transmit and deliver it. The record being without reversible error, the judgment of the district court is affirmed. SECT. IV.] LOKER V. DAAION. 785 LOKER V. DAMON. Supreme Judicial Court of Massachusetts, 1835. [Reported 17 Pick. 284.] Trespass quare clausuvi. The declaration set forth, that the defend- ants destroyed and carried away ten rods of the plaintiff's fences, in consequence of which certain cattle escaped through the breach and destroyed the plaintiff's grass, and that he thereby lost the profits of his close from September, 18.32 to July, 1833. The defendants pleaded, severally, first, the general issue; and secondly a right of way, setting forth, that at the times when the tres- passes were alleged to have been committed, and at the places where, &c., there was a town way, over which all persons had a right to pass, which way was obstructed by the fences, and that in order to pass these it was necessary to remove them ; which they accordingly did. On these pleas issues were joined. At the trial before Morton, J., the plaintiff proved, that the defend- ants, in the latter part of November, removed portions of the stone wall inclosing the locus, and thus made a passage-way through it; that these breaches were not repaired till after the middle of the suc- ceeding May, when they were closed up by the plaintiff; and that in the meantime, the cattle of the plaintiff and others passed into the close, and fed upon the grass; that the close contained four or five acres; and that in 1832, it produced about a ton of hay to the acre. The close was a part of the farm on which the plaintiff li^•ed. The Court ruled, that the plaintiff' was entitled to recover in damages, only enough to remunerate him for replacing the fence. ^ Shaw, C. J. . . . The Court are of opinion, that the direction re- specting damages was right. In assessing damages, the direct and im- mediate consequences of the injurious act are to be regarded, and not remote, speculative and contingent consequences, which the party injured might easily have avoided by his own act. Suppose a man should enter his neighbour's field unlawfully, and leave the gate open; if, be- fore the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open and passes it fre- quently, and wilfully and ol)stinately or through gross negligence lea^•es it open all summer, and cattle get in, it is his own folly. So if one throw a stone and break a wnndow, the cost of repairing the window is the ordinary measure of damage. But if the owmer suffers the window to remain without repairing a great length of time after notice of the fact, and his furniture, or pictures, or other valuable articles, sustain damage, or the rain beats in and rots the window, this damage would be too re- 1 Part of the case, not involving a question of damages, is omitted. — Ed. 786 WOLF v. STUDEBAKEK. [chap. VI, mote. We think the jury were rightly instructed, that as the trespass consisted in removing a few rods of fence, the proper measure of damage was the costs of repairing it, and not the loss of a subsequent year's crop arising from the want of such fence. I do not mean to say, that other damages may not be given for injury in breaking the plaintiff's close, but I mean only to say, that in the actual circumstances of this case, the cost of replacing the fence, and not the loss of an ensuing year's crop, is to be taken as the rule of damages, for that part of the injury which consisted in removing the fence and leaving the close exposed. Judgment on the default, for the sum of SI. 50 damages. WOLF t. STUDEBAKER. SuPREAiE Court of Pexxstlvaxlv, 1870. [Reported 65 Pa. 460.] Thompson, C. J. We have no question before us invohdng the fact of an agreement between the plaintiff and defendant, by which the latter agreed to let to the former, on the shares, her farm for one year, from the 1st of April, 1SG7. The verdict has settled that fact in favor of the plaintiff. The only question before us, therefore, is that relating to damages for the breach of the contract to give possession by the defendant. The plaintiff claimed to recover the value of his contract, that is to say, what he might reasonably have made out of it, for his dam- ages. In Hoy V. Gronoble, 10 Casey 10, which, like the case in hand, was to recover damages for a failure, on part of the defendant, to deliver possession of the farm which he had agreed to let to the plaintiff to farm on the shares, the rule as to damages is thus stated in the opinion of the court by Strong, J. : " We cannot say, therefore, that the jury were misled in this case by being told that the damages of the plaintiff should be measured by what he could have made on the farm. This was but another mode of saying that he was entitled to the value of his bargain." This, as a rule, does not seem to have been controverted by the defendant. But she was permitted to prove, under objection, in mitigation of damages, by one Abraham May, as follows: "Wolf was engaged in hauling for the bridge in the simimer of 1867; he commenced hauling in June, and continued up to the cold weather; before this he was working lots around; after this he marketed some. Wolf and I looked over his books at one time, and his earnings amounted to about SIOOO; he hauled after this; he hauled hay to his o\\'n stable, and some to BoA\Tnan's in the latter part of March; his property consists of a house and stable, and about a quarter of an acre of land; I was at Wolf's sale," &c. SECT. IV.] WOLF V. STUDEBAKER. 787 The earnings of this man in this way, it was thought by the learned judge, should to the extent of them mitigate the damages arising from the defendant's broker contract; in other words, the logic seemed to be that because he was an industrious man, he was not within the same rule of compensation that one not so would be. There are undoubtedly cases in which such facts do mitigate damages. Such commonly occur in cases of the emplo^Tnent of clerks, agents, laborers or domestic servants, for a year or a shorter determinate period. But I have found no case where a disappointed party to a contract for a specific thing or work, who, taking the risk from necessity, of a different business from that which his contract if complied with would have furnished, and shifting for himself and family for employment for them and his teams, is to be regarded as doing it for the benefit of a faithless contractor. It seems to me, therefore, that the rule upon which the testimony quoted was admitted was wrested from its legitimate purpose, and applied to an illegitimate one. In 2 Greenl. Ev., § 261 a, the distinction is marked between " contracts for specific work and contracts for the hire of clerks, agents, laborers and domestic servants for a year or shorter determinate periods." In that case the learned author shows that the defendant may prove, on a breach of the contract, "either that the plaintiff was actually engaged in other profitable ser\'ice dur- ing the term, or that such employment was offered to him, and he rejected it." ■There is an evident distinction between such a hiring and a con- tract for the performance of some specific undertaking. In the one case, the party can earn and expect to earn no more than single wages, and if he gets that, his loss will generally be but nominal. King v. Steiren, 8 Wright 99, was of this nature. Whereas, in the other case the loss of the party is the loss of the benefits of the contract he is pre- pared to perform. In Costigan v. The Railroad Company, 2 Denio 609, in a case of hiring for personal service, where the party was dismissed before his term had expired, it was held he was not obliged to seek employment, nor perform services offered him of a different nature from that he had engaged to perform, in order to reco\'er full damages for disappointment. In analogy to this principle, I would say, that where a disappointed contractor for the performance of a specified thing finds something of a different nature from his contract to do, his doing it ought not to mitigate the damages for the breach of his contract by the other party. Indeed there is enough in the difficulty of applying such a rule to discard it. It would necessarily involve proof of everything, great and small, no matter how various the items, done by the plaintiff during the period of the contract, might be, and how much he made in the meantime. It happened in this case, that a \\'itness saw the plaintiff's book, and testifies from it that he had earned SI 000. The expense incurred in earning it, he did not see, or if he did, did not disclose. But this single case ought not to furnish a rule in other cases. 788 PLITVIMER V. PENOBSCOT LUMBERING ASSOCIATION. [CHAP. VI. It cannot be, that results utterly unconnected with the cause of action, and the party sued can be made to tell to his advantage. It is laid down in every case of damages for a breach of contract, that the loss or injury for which damages are allowable, must be the proximate consequence of the injury. A remote or possible injury is not a sufficient ground for compensation. For a principle so familiar, we need only cite Adams Express Company v. Egbert, 12 Casey 360. Is it not, therefore, equally just and logical, that whatever shall have the effect to mitigate damages shall have some proximate relation to the contract? The rule of damages for a breach of contract laid down by Baron Alderson in Hadley v. Baxendale, 26 Eng. L. & Eq. 398, cited in the opinion of my brother Agnew, in Fleming v. Beck, 12 Wright 309, namely, that "where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract, should be such as may fairly and reasonably be considered, either arising naturally, according to the usual course of things, from such breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time the;^ made the contract, as the probable result of the breach of it," we regard as entirely sound, and we think that that which should mitigate damages in a contract like that we are considering, should be something resulting from the acts of the party occasioning the injury, or from the contract itself. The damages may be said to be fixed by the law of the contract the moment it is broken, and I cannot see how that is to bd altered by collateral circumstances, independent of, and totally disconnected from it, and from the party occasioning it. That part of the offer to show the plaintiff's declarations was properly admitted. ^Miat a party declares against his interest in a litigated matter is always evidence. It may serve to show, if it be not regarded as a mere idle declaration, how he estimated his owti cause of action, and the jury may give them such weight as they may think they deserve, under all the circumstances of the case. For the reasons given, This judgment is reversed, and a venire de novo is awarded. PLUMMER V. PENOBSCOT LUMBERING ASSOCIATION Supreme Judicial Court of Maine, 1877. [Reported 67 Me. 363.] Case, in su})stance that the plaintiff was possessed of about 700 M. feet of logs in the Penobscot river, fastened to posts and trees; that the river is a public highway; that the defendants on or about SECT. IV.] KRAjVIER V. WOLF CIGAR STORES CO. 789 July 10, 1873, carelessly and unlawfully obstructed the channel in violation of their charter, at a point just below where the plaintiff's logs were fastened; that the boom remained one month, during which time the plaintiff was prevented from running his logs down; that during the time the market value depreciated; that this detention was to prevent the West Branch logs from coming dowTi the river and perhaps going to sea; but that without this detention, the West Branch logs would have passed safely by and the plaintiff' been uninjured; that when the boom was open, the plaintiff's rafts were torn from their fastening and scattered and carried down ri\er, whereby the plaintiff was put to great expense and damage, first in looking after his logs, second in the depreciation of the value while the boom was closed, and third for logs carried away. The defendants relied upon their charter and alleged want of care on the part of the plaintiff. . . .^ DiCKERSON, J. . . . The plaintiff was not bound to take notice of the declared purpose of the company to swing a boom across the river. Such declaration imposed no additional duty upon him. Non constat that the WTongful act threatened would be committed. It is sufficient for him if he exercised orflinary care in the preservation of his logs after he had knowledge that the wrong was done. The defendants were not in a situation to require of the plaintiff a greater degree of care, nor was he bound to render it. The instructions upon this branch of the case, and, also, in regard to the measure of damages, are unobjectionable; and we do not perceive sufficient ground for sustaining the motion. Exceptions and motion overruled. Judgment on the verdict. KRAMER V. WOLF CIGAR STORES COMPANY. Supreme Court of Texas, 1906. [Reported 99 Tex. 597.] Williams, J. The action was by Kramer to recover damages for breach of a contract by which the defendant had employed him as the general manager of its stores in Dallas. . . . The appellee (the present plaintiff in error) presented cross-assign- ments in the Court of Civil Appeals upon which it is proper that we should pass. They have reference to the rules of law to be given to the jury to govern in determining what, if any, deductions should be made from the contract price for plaintiff's services in case he should be found entitled to recover, as for a breach of the contract. The evidence in- dicates that plaintiff made no effort to secure any other employment after his discharge and before he went into business for himself, for 1 Part of the case, not involving a question of damages, is omitted. — Ed. 790 KRAMER V. WOLF CIGAR STORES CO. [CHAP. VI. the reason, as he states, that he knew that the attempt to secure em- ployment of the same character as that which he had of defendant would be useless, as there were none such open in Dallas. The evidence also tended to show that out of his business he had made no profit during the months for which his service with defendant should have lasted. The rules of law applicable to this state of facts may be sufficiently stated without following the cross-assignments. The plaintiff, if he was wrongfully discharged, was bound only to use reasonable diligence to get other employment and to reduce his loss as far as could thus be done. Of course, if no other employment could have been obtained by reasonable diligence, proof of that fact would meet every requirement of the law. With reference to the char- acter of employment to be considered, the opinion of Judge Henry in Simon v. Allen, 76 Texas, 399, furnishes the rule applicable. If by reasonable diligence and within a reasonable time he could have se- cured another position of substantially the same character and grade as that which he had held with defendant, such amount as he could have earned therein during the entire term of service should be deducted from the contract price. If it is true, as he claims, that he could not thus have secured such a position, and he knew that fact from the time of his discharge, then, under the second rule laid dowTi in the case referred to, it became his duty to use reasonable diligence to secure other employ- ment for which he was fitted, and in that case, the amount he should have earned in this way during the term of service should be the de- duction. Should it be found that no employment of the defined char- acter could have been had by the diligence required, then, and then only, the question will arise as to the deduction to be made on account of plaintiff's business. It is undoubtedly true that if, during the term fixed by the contract the plaintiff obtained for himself benefits of pecuniary character by employing in his own business the services which would have been due to the defendant under the contract, his recovery should be diminished to the extent of such acquisition. The trial court fixed the measure of this as " the reasonable value of his services to himself in the business." His counsel contends that the measure should be the profits realized in money from the business. We are of the opinion that the charge is correct, but that, under the peculiar facts of this case, it needs some explanation to avoid misunderstanding. The value of his services to himself is not to be understood as meaning what it would have cost to employ him or one like him, but the pecuniary value of that which his services yielded him in the business. This might consist of something more than profits actually received rn money. It might happen that, while no such profits had been received during the months through which the service with defendant should have extended, yet that appre- ciable value had been added to the business by his efforts ; and it is this consideration from which we conclude, that the measure suggested by SECT. IV.] INGRAHAJVI V. PULLMAN COMPANY. 791 plaintiff's counsel might be inadequate for some contingencies, and that of the court, when understood as explained, more correct. Van Winkle V. Satterfield, .58 Ark. 617; Gates v. School District, 57 Ark. 370; Jaffray r. King, 34 Md. 222; Huntington v. Ogdensburgh & L. C. Ry. Co., 33 How. Pr. 416; Toplitz v. Ullman, 2 N. Y. Supp. 863. What we have said is deemed sufficient to indicate the rules to guide at another trial. Reversed and remanded. INGRAHAM v. PULLMAN COMPANY. Supreme Judicial Court of Massachusetts, 1906, [Reported 190 Mass. 33.] Morton, J. The plaintiff had a first-class ticket over the Pennsyl- vania Railroad from Jersey City to Washington, and purchased of the defendant a ticket for a drawing room in a car forming part of a train which was to leave Jersey City on the night of January 22, 1902, at 9.40 p. M. arriving at Washington at 3.4.5 A. M. The car was described on the ticket as Car No. 1, and the ticket permitted the drawing room to be occupied till 7 a. m. the next morning. The plaintiff and a friend who was to accompany him presented themselves at the train, and were told by the conductor that there was no drawing room in Car No. 1 on that train. A section was offered to the plaintiff which he declined, and entered an ordinary passenger car not belonging to the defendant which had no sleeping accommodations, and travelled therein to Washington, sitting up all night. There was e\adence tending to show that the plaintiff had a valvular disease of the heart which was aggra- vated by his sitting up all night, and that, in consequence thereof, he was sick after his arrival at W^ashington, and unable to work regularly till March 1. It appeared that the next train for Washington left at 12.30 A. M., arriving there at 7.19 a. m., and the defendant was permitted subject to the plaintiff's objections and exceptions, to introduce evi- dence tending to show that the plaintiff was offered a drawing room in a car attached to that train which would be ready for occupancy at ten o'clock, and which was in all respects equal to the drawing room called for by his ticket, but he refused to accept it. Similar testimony was introduced, also subject to the plaintiff's objections and exceptions, of other accommodations offered to him and refused. The jury re- turned a verdict for the plaintiff for nominal damages, and the case is here on exceptions by the plaintiff" to the introduction of the evidence above referred to, and to the refusal of the judge to give certain rulings that were requested, and to the charge so far as inconsistent with the rulings thus asked for. It is clear that there was a breach of its contract by the defendant. 1 792 FAIRFIELD V. SALEM. [cHAP. VI. And if the injury to tlie plaintiff's health was the direct and proximate M result of the breach, there would be strong ground for holding that the defendant was liable in damages therefor, and for any inconvenience to which the plaintiff was subjected. There was testimony tending to show that drawing rooms were largely used by invalids, and possible injury to health by reason of a breach of the contract might, therefore, fairly be presumed to have been witliin the contemplation of the parties to it. But in the present case the injury to the plaintiff's health was not the direct and proximate result of the breach Ijy the defendant of its contract. There was an intervening cause, namely, the plaintiff's refusal to accept the accommodations, which the jury must have found were tendered to him, and his conduct in going into an ordinary passenger car, and sitting up during the night's ride to Washington. Dodd V. Jones, 137 IVIass. 322. When he found that he could not get the drawing room for which his ticket called, he was bound in the exer- cise of ordinary prudence to adapt himself as well as he reasonably could, considering his health, business and other matters, to the circum- stances in which he was placed, and to avail himself, within those limits, of such accommodations as were offered by the defendant. In other words it was incumbent on him to do what he reasonably could, taking all the circumstances into account, to lessen the injury and not to aggravate it. Loker v. Damon, 17 Pick. 284. Sutherland V. Wyer, 67 Maine 64. 1 Sedg. Damages, (8th ed.) §§ 201 d seq. The evidence that was objected to was rightly admitted for the purpose of showing that the alleged consequences of the breach of its contract by the defendant could have been avoided by the plaintiff by the exer- cise of reasonable care and prudence on his part. We see no error in the instructions that were given, or in the refusal to give those that were requested. Exceptions overruled. FAIRFIELD v. SALEM. Supreme Judicial Court of Massachusetts, 1913. [Reported 213 Mass. 296.] Two ACTIONS OF TORT for damages resulting from the discharge by the defendant of sewage into a dock adjoining a wharf of the plaintiff, the first action being for damages arising during six years preceding June 2, 1908, and the second for those arising between that date and January 10, 1910. Writs dated June 2, 1908, and January 10, 1910. In each action the declaration contained two counts, the first for expenses caused by the filling up of the dock and the second for diminu- tion in the value of the plaintifi's real estate because of the water being rendered unhealthy and offensive. SECT. IV.] FAIRFIELD V. SALEM. 793 The cases were referred to James W. Sullivan, Esquire, as auditor. In the Superior Court they were tried together before Fessenden, J. The material facts are stated in the opinion. At the close of the evi- dence the defendant requested the judge to instruct the jury as follows: " If the jury find that the city of Salem through its negligence has filled up the so called Fairfield dock, then the duty of the plaintiff is to keep the damage as small as possible and the measure of damage in this case is the dredging of the dock at such times as is necessary, plus the addi- tional cost of doing business while the dock is being dredged." The request was refused. The jury found for the plaintiff in the first action in the sum of $4,147.99, and in the second action in the sum of $18,877.09; and the defendant alleged exceptions. De Courcy, J. The instructions requested by the defendant invoked the rule of avoidable consequences, but they failed to recognize the limitations of that rule. Although the plaintiff could recover only for the direct consequences of the defendant's WTong, and not for damages that were avoidable by the use of reasonable precautions on her part, she Avas not called upon to take unreasonable steps to make the loss less aggravated, nor was she required to commit a WTongful act or to trespass upon the property of another in order to abate the nuisance. The court could not rule as matter of law that the plaintiff's only plan to follow was that of dredging the dock from time to time, and that consequently the measure of her reco\'ery was the cost of such dredging and the damage occasioned by the incidental interference with her coal business. The instructions requested assume that the plaintiff was free^to dredge the dock at any time; but this work must be done within tide water, and there was evidence that the harbor and land commissioners refused to give the necessary permit. R. L. c. 9, § 25. When she did get permission from the commissioners in 1909, it appears that a neighbor, Langmaid, objected to any trespass upon his dock by the dredging company, and that the work upon the plaintiff's would be ineffectual unless the Langmaid dock also was dredged. White V. Chapin, 102 Mass. 138. Even if she were free to do the work the jury might consider that she was warranted in relying upon the assurance of the public officials that the city would dredge the dock. And in determining what steps the plaintiff should have taken to re- duce the damages it was necessary to consider other elements, such as the cost of doing the work of dredging, the number of times that it should be done in order to remove the filling that was being deposited continuously, and the extent of interruption of the plaintift"s business. Clearly these issues of fact were for the jury; and they were sub- mitted with instructions that were clear and complete. BraVton v. Fall River, 113 Mass. 218. French v. Connecticut River Lumber Co. 145 Mass. 261. Exceptions overruled. 794 PAYZU, LIMITED V. SAUNDERS. [CHAP. VI. PAYZU, LIMITED v. SAUNDERS. King's Bench Division and Court of Appeal, 1919. [Reported [1919] 2 K. B. 581.] Action tried by McCardie, J., without a jury. By a contract in writing dated Noveml^er 9, 1917, the defendant, who was a dealer in silk, agreed to sell to the plaintiffs 200 pieces of crepe de chine at 4s. 6d. a yard and 200 pieces at 5s. lid. a yard, "de- livery as required January to September, 1918; conditions, 2}/^ per cent. 1 month," which meant that payment for goods delivered up to the twentieth day of any month should be made on the twentieth day of the following month, subject to 2}/^ per cent discount. At the request of the plaintiffs the defendant delivered, in November, 1917, a certain quantity of the goods under the contract, the price of which amounted to £76, less 2}^ per cent discount. On December 21 the plaintiffs drew a cheque in favour of the defendant in payment of these goods, but the cheque was never received by the defendant. Early in .January, 1918, the defendant telephoned to the plaintiffs asking why she had not re- ceived a cheque. The plaintiffs then drew another cheque, but owing to a delay in obtaining the signature of one of the plaintiffs' directors, this cheque was not sent to the defendant until January 16. On that day the plaintiffs gave an order by telephone for further deliveries under the contract. The defendant in the belief, which was in fact erroneous, that the plaintiffs' financial position was such that they could not have met the cheque which they alleged had been drawn in December, wrote to the plaintiffs on January 16 refusing to make any further deli\'eries under the contract unless the plaintiffs paid cash with each order. The plaintiffs refused to do this, and after some further correspondence brought this action claiming damages for breach of contract. The damages were the difference between the market prices in the middle of February, 1918, and the contract prices of the two classes of goods, the difference alleged being respectively Is. 3d. and Is. 4d. a yard. McCardie, J. ... A serious question of law arises on the question of damages. I find as a fact that the defendant was ready and willing to supply the goods to the plaintiffs at the times and prices specified in the contract, provided the plaintiffs paid cash on delivery. Mr. Matthews argued with characteristic vigour and ability that the plain- tiffs were entitled to ignore that offer on the ground that a person who has repudiated a contract cannot place the other party to the contract under an obligation to diminish his loss by accepting a new offer made by the party in default. The question is one of juristic importance. What is the rule of law I SECT. IV.] PAYZU, LIMITED V. SAUNDERS. 795 , as to the duty to mitigate damages? I will first refer to the judgment of Cockburn, C. J. in Frost v. Knight ((1872) L. R. 7 Ex. Ill, 115), where he said: "In assessing the damages for breach of performance, a jury will of course take into account whatever the plaintiff has done, or has had the means of doing, and, as a prudent man, ought in reason to have done, whereby his loss has been, or would have been, diminished." This rule is strikingly exemplified in Brace v. Calder ([1895] 2 Q. B. 253). There the plaintiff claimed damages for wrongful dismissal. He had been employed as manager of a busi- ness carried on by four persons in partnership. In the course of his employment two of the partners retired, and the business continued to be carried on by the two remaining partners. The plaintiff resented his technical dismissal which resulted from the dissolution of the part- nership, and declined to serve the two remaining partners; and he brought an action against the original firm claiming damages for wrong- ful dismissal. There was a difference of opinion in the Court of Appeal as to whether the plaintiff had been wrongly dismissed, but the mem- bers of the Court were unanimously of opinion that the plaintiff as a prudent, reasonable man should have accepted the offer of the two re- maining partners to retain him in their service, and that he was there- fore entitled to nominal damages only. I think that the substance of the rule which I have indicated was also laid down by the House of Lords in British Westinghouse Electric and Manufacturing Co. v. Underground Electric Railways Co. of London ([1912] A. C. 673, 689), where Lord Haldane said: "The fundamental basis is thus com- pensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plain- tiff the duty of taking all reasonable steps to mitigate the loss conse- quent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take, such steps." The question, therefore, is what a prudent person ought reasonably to do in order to mitigate his loss arising from a breach of contract. I feel no inclination to allow in a mercantile dispute an unhappy indul- gence in far-fetched resentment or an undue sensitiveness to slights or unfortunately worded letters. Business often gives rise to certain asperities. But I agree that the plaintiffs in deciding whether to accept the defendant's offer w^ere fully entitled to consider the terms in which the offer was made, its bona fides or otherwise, its relation to their own business methods and financial position, and all the circumstances of the case; and it must be remembered that an acceptance of the offer would not preclude an action for damages for the actual loss sustained. Many illustrations might be given of the extraordinary results which would follow if the plaintiffs were entitled to reject the defendant's offer and incur a substantial measure of loss which would have been avoided by their acceptance of the offer. The plaintiffs were in fact in a position to pay cash for the goods, but instead of accepting the de- » 796 PAYZU, LIMITED V. SAUNDERS. [cHAP. VI. fendant's ofFer, which was made perfectly bona fide, the plaintiffs permitted themselves to sustain a large measure of loss which as prudent and reasonable people they ought to have avoided. But the fact that the plaintiffs have claimed damages on an erroneous principle does not preclude me from awarding to them such damages as they have in fact suffered, calculated upon the correct basis. See Corj^ r. Thames Iron- works and Shipbuilding Co. ((1868) L. R. 3 Q. B. 181). They have suffered serious and sul)stantial business inconvenience, and I con- ceive that I am entitled to award them damages for that. The authorities are conA'eniently collected in i\rnold on Damages at p. 13. Moreover, even if the plaintiffs had accepted the defendant's offer, they would nevertheless have lost the very useful period of credit which the contract gave them. Taking into consideration all the cir- cumstances of the case I have come to the conclusion that the right sum to award as damages is £50. I give judgment for the plaintiffs for that amount, and in view of the important points involved I give costs on the High Court scale. Judgment for plavitiffs. The plaintiffs appealed on the question of damages. Bankes, L. J. At the trial of this case the defendant, the present respondent raised two points: first, that she had committed no breach of the contract of sale, and secondly that, if there was a breach, yet she had offered and was always ready and willing to supply the pieces of silk, the subject of the contract, at the contract price for cash; that it was unreasonable on the part of the appellants not to accept that offer, and that therefore they cannot claim damages beyond what they would have lost by paying cash with each order instead of having a month's credit and a discount of 23^ per cent. We must take it that this was the offer made by the respondent. The case was fought and the learned judge has given judgment upon that footing. It is true that the correspondence suggests that the respondent was at one time claiming an increased price. But in this Court it must be taken that the offer was to supply the contract goods at the contract price except that payment was to be by cash instead of being on credit. In these circumstances the only question is whether the appellants can establish that as matter of law they were not bound to consider any offer made l)y the respondent because of the attitude she had taken up. Upon this point McCardie, J., referred to British Westinghouse Electric and Manufacturing Co. r. Underground Electric Railways Co. of London, ([1912] A. C. 673, 689), where Lord Haldane, L. C, said: "The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps. In the words of James, L. J., in Dunkirk SECT. IV.] BRIDGEPORT V. .ETNA INDEMNITY CO. 797 Colliery Co. v. Lever ((1878) 9 Ch. D. 20, 25): 'What the plain- tiffs are entitled to is the full amount of the damage which they have really sustained by a breach of the contract. The person who has broken the contract not being exposed to additional cost by reason of the plaintiffs not doing what they ought to have done as reasonal)le men, and the plaintiff's not being under any obligation to do anything otherwise than in the ordinary course of business.'" It is plain that the question what is reasonable for a person to do in mitigation of his damages cannot be a question of law but must be one of fact in the circumstances of each particular case. There may be cases where as matter of fact it would be unreasonable to expect a plaintiff' to consider any offer made in view of the treatment he has received from the defend- ant. If he had been rendering personal ser^dces and had been dismissed after being accused in presence of others of being a thief, and if after that his employer had ott'ered to take him back into his ser\ice, most persons would think he was justified in refusing the offer, and that it would be unreasonable to ask him in this way to mitigate the damages in an action of wrongful dismissal. But that is not to state a principle of law, but a conclusion of fact to be arrived at on a consideration of all the circumstances of the case. Mr. Matthews complained that the re- spondent had treated his clients so badly that it would be unreasonable to expect them to listen to any proposition she might make. I do not agree. In my view each party was ready to accuse the other of conduct unworthy of a high commercial reputation, and there was nothing to justif}^ the appellants in refusing to consider the respondent's offer. I think the learned judge came to a proper conclusion on the facts, and that the appeal must be dismissed. ScRUTTON, L. J., and Eve, J., concurred. Appeal dismissed. BRIDGEPORT v. MTNA INDEMNITY CO. Supreme Court of Errors of Connecticut, 1919. [Reported 105 Atl. Rep. 680.] Action for breach of a contract by which oneW inton agreed to reduce the city's garbage, offal and dead animals, for a period of ten years, for fifty cents a ton. Winton's assignee abandoned the contract when it had four years to run. The city then adAcrtised for bids for the dis- posal of this refuse for each of four periods, three, five, ten and twenty years, and finally accepted the bid of one Fischer, the lowest responsible bidder, who offered to perform the work for ten years for the price of $1 per ton; the contract contained certain terms, favoral)le to the city, in addition to those of the \\'inton contract. The lowest price at which 798 BRIDGEPORT V. ^TNA INDEMNITY CO. [CFIAP. VI. tlie city could have made such a contract for the balance of the term was $2 a ton. It now sues the bondsman on the contract for the differ- ence in price between the Winton and the Fischer contracts during the remainder of the original term.^ Prentice, C. J. All of the reasons of appeal relate to the action of the court below in accepting against remonstrance the report of its committee to whom was referred the duty of hearing the evidence touching the extent to w'hich the city had been damaged by reason of the by-products company's breach of its contract and of reporting its conclusions thereon. The complaints, made in somewhat varying forms, are in substance that the committee acted improperly and harm- fully to the indemnity company in using in any way the Fischer con- tract as a factor or guide in the determination of the extent to which the city had been damaged, and that the manner of its use by the com- mittee amounted to a misuse of it. The indemnity company's obligation as surety on the bond guaran- teeing the by-products company's faithful performance of its contract is measured by the loss up to $10,000 which the city suffered from the by-products company's failure in performance. When the breach occurred by the by-products company's cessation of service, the ten- year contract had four years to run. The lowest price at which the city could have procured the reduction and disposition of its garbage and dead animals as undertaken by the by-products under its contract commonly known as the Winton contract for a four-year period, would have been $2 a ton. Under the circumstances, it was the city's moral and legal duty to take such action as it could, reasonably and with due regard for its own interests, to the end that the damage to it resulting from the breach might be kept down to the minimum. Hamilton v. McPherson, 28 N. Y. 72, 76; 84 Am. Dec. 330; 18 Cyc. 72. Acting in conformity with the duty thus resting upon it, the city, immediately following the breach, advertised for bids for the disposal of its garbage for varying periods. As the ultimate result a contract was entered into upon the best available bid with one Fischer for a ten- year period beginning January 7, 1911, and at a price of %1 per ton. Under this contract the city's garbage and dead animals were disposed of until the expiration of the time period of the Winton contract and afterwards. The Fischer contract called for the performance of the same service as did the Winton and by the same method, to wit, reduc- tion, and was similar to the latter contract in all material particulars save for. the incorporation of four additional provisions. When the contract was entered into i,with Fischer, the city was faced by certain conditions. Its duty was to minimize as far as it reasonably could its loss by reason of the by-products company's breach. It could not secure a contract limited to the remaining period of the Winton contract which would not entail a heavy and inordinate burden of loss. ' This short statement of facts is substituted for that of the Reporter. — Ed. SECT. IV.] BRIDGEPORT V. iETNA INDEMNITY CO. 799 It could not contract for a more extended period than the balance of the Winton period upon the Winton terms unchanged without placing upon itself for the whole period of the new contract, including that portion of it which extended beyond the date of the expiration of the Winton term, any burden imposed by unsatisfactory terms contained in the Winton contract or by the absence therefrom of desired provisions. It was placed in the position where it was impossible for it to reduce its loss below one of SI. 50 a ton and at the same time retain its freedom to contract for the time beyond the expiration of the Winton term as should meet its wishes. If the Winton contract was not altogether satisfactory, as apparently it was not, the city was driven to one of three alternative courses. It could either enter into a contract for the remaining years of the Winton term, in which case the resulting damage would remain at an inordinately high figure, or it could execute one for a longer period containing such modification as it desired for its protection in the years to come after the Winton contract had run its ten-year course, or it could, unmindful of its own interests, contract for a long period upon the Winton terms. The second of these courses was pursued, with the result that the cost of reduction and disposal was reduced one half and the desired protection of the city's interest at the same time secured. As the new contract was obtained after open and public competition and upon what were apparently the best available terms and the loss to the city resulting from the breach of the Winton contract was thereby reduced at least from $1.50 to 50 cents a ton, while at the same time the modifications made in the new contract were only minor ones afford- ing the city desired protection in its execution after May 27, 1914, there would seem to be slight ground indeed for a claim that the city had not acted fairly and reasonal)ly in the matter and had not performed its full duty of taking reasonable action to minimize its loss from the by-products company's breach. It was under no obligation to enter into a long term of contract for the defaulting company's protection entirely regardless of the former's interest covering the years which would follow the termination of the contract broken. Its duty to the defaulting company was to do what was reasonable under the circum- stances, that the damages suffered by it might be kept down and that only. It was under no obligation to do its utmost to that end without regard to its own interests, thereby exalting the company's interests above its own. The test of reasonableness was one which had a broader outlook and took into account all the circumstances of the situation. These considerations effectually dispose of the receiver's contention that the indemnity company was discharged and released from liability upon its bond in excess of nominal damages by the execution of the Fischer contract. The fact that the l)y-products company, by its letter of July 14, 1910, and before the Fischer contract was executed, made the conditional offer it did to resume work under its contract, does 800 BRroOEPORT V. MT-NA INDEMNITY CO. [CIIAP. VI. not change the situation. Bridgeport v. xEtna Indemnity Co., 91 Conn. 197, 209, 99 Atl. 566. As the Fischer contract was one which the city might reasonably have entered into and for aught that appears was entered into fairly and upon the best available terms, it follows that the committee Avas fully justified in taking cognizance of it and using it as a factor in its determination of the extent of the damages the city suffered by reason of the by-products company's breach of its contract and as a guide in such determination in so far as it might be helpful. Had it conformed in all respects to the Winton contract, excepting in the matter of dates and price, no exception could be taken to its use as fixing definitely and precisely the extent of the city's damage. Its four additional para- graphs, apparently embodying provisions favorable to the city, forbid such use to be made of it, at least without further inquiry. Their pres- ence does not, however, forbid its use-as a basis of computation if so be it furnishes a reasonable and helpful one. That it does furnish such basis is clear. The two contracts require of the contractor the doing of the same service and by the same method. The main provisions of the two are alike in all material respects. The variations from the \Yinton contract embodied in the four additional provisions of the Fischer contract are so far minor and incidental and so far susceptible of separable consideration and estimate that appraisal with reasonable accuracy of the additional burden imposed by them upon the contractor presents a V)y no means difficult problem. Due deductions from the price fixed in the Fischer contract being made for any increased cost by reason of these variations, a result will be arrived at which will ap- proximate more nearly to the precise than, would any other method which the circumstances suggest as available. Precision and certainty are not required. Satchwell v. Williams, 40 Conn. 371, 374. Counsel for the receiver is, of course, quite right in sa\ang that the city is not entitled to obtain, under the guise of the allowance of a claim, reimbursement for what it had expended for a better or variant service. But that is preciselywhat is not done by the use of the Fischer contract as the basis of determination with proper allowances made for modifi- cations of the terms of the Winton contract appearing in the former. This was the course the committee pursued. It took the price per ton which the city was required to pay under the Fischer contract, and made such deductions therefrom as it found was reasonable on account of the incorporation of the four provisions referred to, and found that 85 cents a ton represented the "cost to the city of obtaining the service which the Winton contract required the contractor to render and under the same incidental conditions which the Winton contract imposed. It remains to inquire whether the committee, in its employment of that method and its application of it to the circumstances of the case as found, erred. As bearing upon this inquiry, it is to be remembered that the questions here at issue are those of fact pure and simple. The con- SECT. IV.] BRIDGEPORT V. ^TNA INDEMNITY CO. 801 elusions of the committee must therefore stand, unless they are such as could not reasonably have been arrived at upon the subordinate facts found. The first of the additional provisions required the contractor to accept from the city garbage containing as high as 10 per cent of foreign and extraneous matter whereas the Winton contract made no specifications upon that subject. x\t the time of the former appearance of this case before us, we held that, notwithstanding the absence of such specification from the Winton contract, the contractor could not complain of the presence of 5 per cent of foreign matter in the garbage delivered to it, and was in duty bound under its contract to reduce gar- bage containing that quantity of foreign matter. Bridgeport v. iEtna Indemnity Co., 91 Conn. 197, 208, 99 Atl. 566. The committee has found that the cost of the removal of an additional 5 per cent of foreign matter, if it were present, would amount to from 15 to 20 cents a ton. The second in the order of enumeration of the additional clauses im- posed upon Fischer little, if any, restraint to his freedom of action or burden of any sort from which the by-products company under the Win- ton contract was free. Whether the agreement under which a contractor is operating in the reduction of garbage speaks upon the subject or is silent, he is subject to the reasonable regulations of health authorities and is under the duty to observe the sanitary regulation of such au- thorities and to conduct his business in such manner as not to create a nuisance. The remaining additional clauses relate to matters which, in view of the committee's finding that a plant erected for the reduction of 25 tons of garbage a day is adapted for reduction of from 35 to 50 tons a day by the use of more coal and its operation of longer hours, are manifestly of comparatively small importance as bearing upon the cost per ton of reduction. Whether this last statement be true or not, the finding of the com- mittee that Fischer's bid was made without reference to either of the four conditions emunerated and without knowledge that either of them would be incorporated into the contract when executed, that the con- tract with him was made in accordance with that bid, that F'ischer, in the execution of his contract, did not regard either of them as imposing upon him an extra burden justifying him in asking a figure in excess of that named in his bid, and that he executed a contract which recognized no such additional imposition, suffices to render the court's refusal to make a greater reduction from the .l^l rate, at which the service was undertaken and performed by Fischer than that of 15 cents on ac- count of anything contained in the four provisions first appearing in his contract, one which can be pronounced unreasonable. There is no error. The other Judges concurred. 802 NORSKE AMERIEKALINJE V. SUN PRINTING, ETC., ASSO. [cHAP. VI. DEN NORSKE AIMERIEKALINJE ACTIESSELSKABET v. SUN PRINTING AND PUBLISHING ASSOCIATION. Court of Appeals, New York, 1919. [Reported 226 N. Y. 1.] HiscocK, C. J. In this action for libel plaintiff has alleged and is seeking to recover as part of its damages certain expenses incurred publishing denials of the truth of the offending article for the purpose of averting and minimizing its damages. On motion these allegations were stricken out of the complaint as irrelevant on the theory that plaintiff could not recover such damages and the question now presented to us by certification is whether this should have been done. It is essential to an intelligent discussion of the question to state the facts presenting it as they are set out in the complaint. Plaintiff is a corporation created by and existing under the laws of the Kingdom of Norway. On July 7, 1917, and for some time prior thereto it had been engaged in operating a line of steamers between New York and Norw^ay which carried both passengers and freight and it " had an established credit and achieved a reputation and good name, and high esteem for honesty, integrity and ability in the conduct of its said business and in the carrying out of its obligations and agreements." On the date mentioned one of its steamers sailed from New York for Norway carrying a large list of passengers and a large amount of freight. It went ashore near Cape Race on July 15th and w^s compelled to call for the assistance of a WTecking ship. At this time the defendants Avere engaged in publishing a newspaper which was in general circulation throughout the city of New York and elsewhere and on August 6th, 1917, they, as alleged, "falsely and maliciously composed and published and caused to be published con- cerning the plaintiff, in said newspaper" the offending article which read as follows: "Wreck Works A Sea Change "'cargo of grain' transmuted "into copper and lead , "on A SCANDINAVIAN LINER " Craft Went Ashore near Cape Race on July 1.5. " The WTecking ship Rescue, which returned today from Newfound- land waters, reported that the wrecked steamship Kristianiafjord, when grounded seven miles west of Cape Race, on July 15, was found to be heavily laden with copper and lead. " The wreckers said that they assisted in taking from the hold of the SECT. IV.] NORSKE .AJVIERIEKALINJE V. SUN PRINTING, ETC., ASSO. 803 stranded vessel a 15,000 ton cargo of boxes, containing principally ingots of copper and bars of lead. The metal had been securely cased. "The Kristianiafjord, the greatest of Scandinavian merchantmen, belonging to the Norwegian-American Line (meaning the plaintiff) sailed from New York, July 7 with 1200 passengers, one of the biggest passenger lists of war times, and ' great cargo of general merchandise, including a vast quantity of grain,' as ship news repoHed at the time. " A few days later she arrived at Halifax and the British overhauled her. Among her passengers were several Germans who until recently had been attached to the Swiss Legation in Washington, including Heinrich Schaffhausen, Count von Bernstorff's right hand man. " By what process a cargo ' principally of grain ' was transmuted into one principally of copper and lead the crew of the Rescue did not at- tempt to say." All of this article is asserted to have been false except certain state- ments therein which are immaterial in this discussion and it is claimed in substance that the fair meaning intended to be and actually con- veyed by it was that the plaintiff fraudulently and illegally misrepre- sented the nature of the cargo contained in its ship by falsifying the manifest and other documents and that it was engaged in violating the laws of this country by conveying under circumstances of conceal- ment and misrepresentation a large supply of copper to Norway, whence it could be easily transported to the Central Powers with which we were then at war, and which in accordance with general knowledge were much in need of said material. Then follow the allegations drawn in question on this appeal that on failure of defendants to retract said article as immediately demanded " and in order to minimize the damage and injury to its reputation and credit, plaintiff was oV)liged to and did cause denials of such false and defamatory statements to be made in newspapers published and circulated in the city of New York and else- where throughout the United States, at an expense of S2,722, which it was obliged to and did pay. ..." The rule is of general and widespread application that one who has been injured either in his person or his property by the wrongful act or default of another is under an obligatory duty to make a reasonable effort to minimize the damages liable to result from such injury, and that if he does not make such reasonable effort he will be debarred from recovering for those additional damages which result from such failure. Familiar illustrations of this rule are found in the requirement that one who is threatened with damages as the result of a breach of a con- tract of employment must make a reasonable effort to find employment elsewhere (Howard v. Daly, 61 N. Y. 362; Johnson v. Meeker, 96 N. Y. 93, 97); that one whose property is threatened by the negligence of another, as by a defective sewer or sparks cast from a locomotive, must make proper efforts to stay the damages (Toledo, Peoria & W. Ry. Co. V. Pindar, 53 111. 447; Van Pelt v. City of Davenport, 42 804 NORSKE AMERIEKALINJE V. SUN PRINTING, ETC., ASSO. [CHAP. VI. Iowa, 313); that one whose person is injured by the carelessness of another must make a reasonable attempt to cure or mitigate the injury and stop the damages (Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y. 77; Pullman Palace Car Co. r. Bluhm, 109 111. 20). Then it is held as a natural corollary to this rule of duty not only that the injured party who makes a successful effort to avoid or reduce damages will be allowed to recover the expenses necessarily incurred in so doing, but also that he will be allowed to recover the expenses of a proper effort even though it proves unsuccessful. The scope of the effort and the limit upon the expenses for which he may recover, espe- cially in the latter case, are naturally defined by different words in differ- ent cases. But from them all we think the general rule may be fairly deduced that the effort must be made in good faith, that it must be conducted with reasona])le skill, prudence and efficiency, that it must be reasonably warranted by and proportioned to the injury and con- sequences to be averted, and that it must be made under a belief reasonably justified that it will avoid or reduce the damages otherwise to be apprehended from the wrong complained of. (Baldwin v. U. S. Tel. Co., 45 X. Y. 744, 753; Wright v. Bank of the Metropolis, 110 N. Y. 237; Kelley, Maus & Co. v. La Crosse Carriage Co., 120 Wis. 84; Van Pelt V. City of Davenport, 42 la. 313, 314; Sherman Center Town Co. V. Leonard, 56 Kan. 354; Davis v. Fish, 1 Greene [la.], 406; Pullman Palace Car Co. v. Bluhm, 109 111. 20; Beidler v. Sanitary Dist., 211 111. 639; Toledo, P. & W. Ry. Co. v. Pindar, 53 111. 447; Watson v. Lisbon Bridge, 14 Me. 201; Ellis v. Hilton, 78 Mich. 150.) But these cases wherein and whereby the rule of duty has been es- tablished do not involve instances of intentional injury to or invasion of the rights of person or property. Although the act complained of was unlawful as in breach of contract, or negligent, it was not performed with malicious or wilful intent to injure, and a distinction very well may be drawTi between the two classes of cases in respect of any duty which would rest upon the injured party. (Athens Mfg. Co. v. Rucker, 80 Ga. 291, 295; Satterfield v. Rowan, 83 Ga. 187, 190; Galveston, H. & S. A. Ry. Co. v. Zeantzinger, 92 Tex. 365, 370; Steinmetz v. Kelly, 72 Ind. 448.) The present libel is alleged to have been "falsely and maliciously composed and published," and as has been said we are com- pelled for present purposes to take these allegations as they are written. They may mean either actual malice or such malice as by legal fiction is presumed for the purpose of reconciling certain other rules in the law of libel. In either event, however, the element of malice is present in the alleged wrong and we are not inclined to hold that there was imposed upon the plaintiff an obligatory burden to endeavor to avert its injurious consequences. The defendants of coui-se do not assert any such obligation. We do not, however, regard duty and right as entirely correlative in such a case. We think that the injured party should be permitted to SECT. IV.] NORSKE AMERIEKALINJE V. SUN PRINTING, ETC., ASSO. 805 pursue the latter although he may not be driven by the former. Abun- dant reasons, in our opinion, support the conclusion that the injured party, at the risk of the WTongdoer, should be allowed, although not compelled, to attempt by a reasonable and proper effort to prevent damages liable to result from the wrongful act which has been com- mitted against him. The alternative proposition is that the MTongdoer has the right to insist that the suffering party must sit still and allow damages to accumulate on the possibility that some time he may recover them. If the attempt is successful it is for the benefit of the wTongdoer and it is obvious that in securing the benefit of the effort he should pay the reasonable cost of it. (Jones v. Morgan, 90 N. Y. 4, 11.) The only chance for doubt would arise where the purpose failed and even then we think that if it is a proper one it should be at the risk and expense of the wrongdoer. It is his improper act which has furnished the occa- sion and necessity for the effort, and he ought not to be allowed by too narrow or rigid rules to restrict the right of the one whom he has injured to seek to protect himself from harm and loss by an attempt which if it is successful will be for the l^enefit of the offender himself. Where a wrong has been committed under circumstances which include the element of intentional, wilful and malicious injury, the author will be held responsible for the injuries which he has directly eaused even though they be beyond the limit of natural and apprehended results, as established in cases where the injury was unintentional. (Garrison V. Sun Printing & Pub. Assn., 207 N. Y. 1, 8.) One who publishes an article concerning a corporation which so seriously impugns its methods of business that damages will be presumed should, we think, be held chargeable with the expense of a proper effort to avert them. The two things are closely connected; one is an incident to the other. In an action for assault and battery the injured party is allowed to recover as part of his damages the expenses of medical treatment by which he seeks to cure his injuries and whereby, if successful, the damages are reduced. (Smith v. Bagwell, 19 Fla. 117; Schmitt v. Kurrus, 234 111. 578; Pratt v. Hamilton, 161 Mich. 258; Rees v. Rasmussen [Sup. Ct. Neb.], 98 N. W. Rep. 830.) We are able to see no difference in principle between such an attempt in the case of a wanton physical injur;\', and one in such a case as this by proper methods to cure an injury to prop- erty and to minimize the damages threatened thereby. This leaves as the only remaining inquiry the one whether a jury might be allowed to say that the acts alleged to have been performed by plaintiff constituted a proper, reasonable and permissible effort to offset the harm and avert the damages threatened by defendants' alleged wrongful act, within the rules which we have already summarized in a case where a duty rests upon the injured party. We think they might. We lm\e the fact that the plaintiff was engaged in carrying passen- gers and freight to and from the city of New York and that prior to 806 NORSKE AMERIEK^A-LINJE T. SUN PRINTING, ETC., ASSO. [CHAP. VI. the article in question it enjoyed a good reputation for honest and effi- cient business conduct and management. The article complained of on the view we are now assuming directly impugned this reputation and course of business and was calculated to affect plaintiff's credit and business reputation and cause people to withdraw their patronage. So far as concerns damages the wrong and injury were not consummated and complete and " the harm done " at the moment the article was published, as is argued by respondents. The results and damages were apt to be just as continuing and continuous as those resulting from a tortious personal injury. The article was published and circulated in the city of New York and under these circumstances we think that a jury would be permitted to find that denials of the truthfulness of the allegations contained in the libelous article promptly published and circulated in the same city where the libel was circulated, and as we assume in proper language and wnth reasonable display, were calculated to reach the attention of those who otherwise might have been unfavorably affected by the original libel, prevent them from withdrawing their patronage and thus minimize plaintiff's loss. Of course we are dealing with general and rather indefinite allegations. The evidence offered under these may or may not tend to establish such an effort on the part of the plaintiff as will come within the rules adverted to. But reading the allegations as they now appear we think that they assert an effort which a jury might find to be a reasonable and promising one within the rules regulating such efforts as we have outlined them. It was held in Massachusetts (Ellis v. Brockton Pub. Co., 198 Mass. 538, 542), where the rule of punitive damages does not prevail, that evidence of a full and prompt retraction is admissible for the purpose of reducing damages. It was written: "The publication of a retrac- tion, complete in character and conspicuous in position, might be found to have a material effect in diminishing the mischief caused by the libel, and thus substantially reduce the damages sustained by the person libelled. The retraction was properly admitted in e\'idence quite apart from the statute." The case of Turner v. Hearst (115 Cal. 394, 402) seems to hold that evidence of a proper retraction may be given both for the purpose of rebutting the inference of malice and also as evidence tending to prove a decrease of the actual damages which without it plaintiff would have sustained. While we are not accepting these decisions as establishing the rule in this state that evidence of a retraction may be given for the purpose of reducing compensatory damages — that question not being now l)efore us — they do tend to support the proposition that publication of denials of the truthfulness of a libelous article under proper circmn- stances might be found by a jury to be a step or effort which was reasonably calculated to minimize the damages otherwise to be antici- pated from such article. Denials by the libeled person might not have the same force as an admission of falsehood or mistake by the libeler SECT. IV.] HOPPLE V. HIGBEE. 807 himself, but we do not think it ought to be said as a matter of law that ones hke those here alleged were not reasonably calculated to have •some effect in the same direction. ' For these reasons we think that the orders appealed from should be reversed, with costs in all courts, and that defendants' motion should be denied, with ten dollars costs, and the question certified answered • in the negative. Chase, Hogan, Cakdozo, Pound, McLaughlin and Andrews, JJ. concur. Orders reversed, etc. HOPPLE V. HIGBEE. Supreme Court of New Jersey, 1852. [Reported 3 Zab. 342.] Green, C. J. In the action of trespass de bonis asportatis damages are allowed upon two grounds, viz.: 1. By way of compensation for the loss of the goods. 2. As vindictive or exemplary damages for a wanton or malicious injury to the rights or feelings of the plaintiff, as a public example to prevent a repetition of the act. Where the tres- pass is accompanied by no circumstances of aggravation, the value of the property to the plaintiff at the time of the injury, with interest, furnishes ordinarily the measure of damages. Pacific Ins. Co. v. Conrad, Bald. 138; Sedgwick on Damages, 549. Where there are no circumstances of aggravation where vindictive or exemplary damages are not claimed, the measure of damages is compensation to the plaintiff for his loss. And hence, when the goods taken by the trespasser are restored to the plaintiff and accepted by him, that fact may be shown in mitigation of damages. It will not, indeed, justify the tort nor absolve the tort-feasor from the legal con- sequences of his wrongful act; but it will show that the plaintiff has sustained less injury, and is consequently entitled to less damages by way of compensation than he otherwise would have been. 2 Rolle's Ab. 569, pi. 3; Com. Dig. "Trespass" B 4; Bac. Ab. "Trespass" E 2. So if the property, while in the hands of the trespasser, be attached or taken in execution upon process issued at the suit of a third party against the owner of the goods, and they be thus applied by sanction of law in satisfaction of the owner's debt, or otherwise for his benefit, that fact, the cases agree, may be shown in mitigation of damages. Higgins V. Whitney, 24 Wend. 379; Squire v. Hollenbeck, 9 Pick. 551; Sherry v. Schuyler, 2 Hill, 204; Irish v. Cloyes, 8 Vt. 30. But it is said, that although if taken out of the hands of the wrong- doer by legal process at the instance of a third part}', that fact may be 808 HOPPLE V. HIGBEE. [CIL\P. VI. shoviTi in mitigation of damages; the rule does not apply wliere the process is sued out by the trespasser himseh', because the trespasser cannot mitigate damages by showing that he had himself applied the* property to the owner's use without his consent. Hanmer i\ Wilsey, 17 Wend. 91 ; Otis v. Jones, 21 Wend. 394; Higgins v. Whitney, 24 Wend. 379. So far as the question of compensation to the plaintiff is concerned, ■ it is ob^•iously immaterial whether the goods are taken from the wrong- doer by process, sued out by the A\Tongdoer himself or by a third party. In either event they are applied to the plaintiff's use, and his loss, by reason of the trespass, is diminished as much in the one case as in the other. Upon the mere question of compensation, the distinction sought to be established is without foundation. If the distinction exist, it must rest upon principles of policy or upon some ground distinct from the mere right of the plaintiff to compensation for his loss. And it was accordingly held by the Supreme Court of New York that the evidence was" inadmissible, because the trespasser cannot by any act of his own, without the plaintiff's consent, relieve himself from the consequence of his tort, or deprive the plaintiff of redress for the injury inflicted. It is true that the trespasser cannot by his own mere act either restore the property to the plaintiff, or apply it to his use, without his consent. Xor can the trespasser appropriate the property AATongfuUy seized either to pay a debt due to himself or to any other creditor, except by consent of the debtor or by sanction of law. But where the goods are seized in the hands of the trespasser by legal process, and applied to the paAanent of the debts of the OTATier, they are not so applied by the act of the tort-feasor, but by act and opera- tion of law. And, upon principle, it is perfectly immaterial whether the machinery of law be set in operation ])y a third party or by the tort-feasor himself. In either event the property of the plaintiff, un- lawfully taken from his possession, is by sanction of law taken from the trespasser, and applied to the use of the o^^Tier. As a matter of right and justice, therefore, he is entitled to so much less damages as a compensation for liis injury. It is clear, moreover, that the oA\Tiership of the goods is unchanged by the tort. They remain in the hands of the trespasser liable to be seized by legal process against the o^^'ner, and thus appropriated to his use. Any creditor may thus sue out process, seize and appropriate them. It cannot be contended that the trespasser has forfeited his rights as a creditor, or that he has not the same right to sue and attach the goods as any other creditor has. And if the goods may thus be legally taken from tlie defendant's possession, and applied to the plain- tiff's use, it is difficult to concei\e of any rule of law or principle of justice which would compel the trespasser to respond for the value of the goods, or permit the plaintiff' to recover their full value, by way of compensation. SECT. IV.] HOPPLE V. HIGBEE. 809 In the case now under consideration, the goods were originally seized by virtue of an attachment issued by a justice for an amount beyond his jurisdiction. The process was consequently void, and the plaintiff in the attachment and the officer who served the process be- came liable as trespassers. It cannot be denied that the plaintiff had a right to sue out a second and valid attachment, and that it was not only the right, but the duty of the officer to attach the same goods to answer the claim of the plaintiff. And if, by operation and judgment of law, the goods were applied to the plaintiff's use, his damages re- sulting from the unlawful act were pro tanto diminished, and it would seem to be perfectly immaterial, so far as the question of damages resulting from the trespass is concerned, whether the attachment was sued out by A. or by B., or whether the property was applied to pay a debt of the plaintiif or of any of the creditors who came in under the attachment. The force of the objection consists in the position, that the act of the wrongdoer, after the trespass has been committed, and the right of the plaintiff to redress is consummate, cannot divest the plaintiff of any part of his remedy. It is not contended that it can purge the tort, but merely that it may qualify the injury which the plaintiff has received. There are numerous authorities which, by analogy, sustain the position. Thus, in an action by an executor against an executor dc son tori, the defendant may show in mitigation of damages the due payment of the debts of the decedent. Whitehall v. Squire, Carth. 104; 2 Saund. P. and E. 888; Buller's N. P. 48. He cannot plead in justification payment of the debts to the value of the goods; but, upon the general issue, those payments shall be rec- ognized in damages. 2 Phil. Ev. 125. In Prescott «. Wright, 6 Mass. 20, which was an action of trover by a defendant in execution against a constable who levied the execution after it was returnable, the court held that the levy was without legal authority and a conversion. "But," say the court, "as the defendant paid a debt due from the plaintiff out of the proceeds, this fact may mitigate the damages." The same principle was adopted in Caldwell V. Eaton, 5 Mass. 404. In Pierce v. Benjamin, 14 Pick. 356, the plaintiff sued in trover for goods taken and sold by a tax collector under a tax warrant. The goods were sold in \iolation of law, and the proceeds applied in part payment of the plaintiff's tax. It was held that the defendant, by virtue of his unlawful proceedings, became liable as a trespasser ah initio, but that the amount of the proceeds of the sale applied toward the payment of the plaintiff's tax must be deducted from the value of the goods in ascertaining the amount of (himages. The court say, "The general rule of damages in actions of trover is 810 HOPPLE V. HIGBEE. [ciL\P. VI. unquestionably the value of the property taken at the time of its conversion. But there are exceptions and qualifications of this rule, as plain and well established as the rule itself. Whenever the prop- ert}- is returned, and received by the plaintiff, the rule does not apply; and when the property itself has been sold, and the proceeds applied to the payment of the plaintiff's debt, or otherwise to his use, the reason of the rule ceases, and justice forbids its application. In all such cases the facts may be shown in mitigation of damages." Accord Blake v. Johnson, 1 N. H. 91. Judge Greenleaf, one of the most accurate of elementary TVTiters, lays ' down the rule with equal clearness : " If the property, in whole or in part, has been applied to the pa^onent of the plaintiff's debt, or otherwise to his use, this may be considered by the jury as diminish- ing the injury, and consequently the damages." 2 Greenl. Ev. § 276. The rule, it may be admitted, is too broadly stated. The unau- thorized appropriation by a trespasser of the goods wrongfully taken to pay the owner's debts, it may be, would be inadmissible in evidence in mitigation of damages. But if the goods wrongfully taken be thus appropriated, either by the consent of the owTier or by sanction and operation of law, there would seem to be no just ground for question- ing the soundness of the principle. In Lamb v. Day and Peck, 8 Vt. 407, the plaintiff brought an action of trespass against the attaching officer and the plaintiff in attachment for unlawfully using a horse, the property attached. The plaintiff in attachment subsequently re- covered judgment, and the horse was sold, by virtue of an execution, in satisfaction of the judgment. The defendants were held trespassers ab initio by reason of the unlawful use of the horse. But the court said, "placing the liability of the defendants on the footing of the original taking as an act of trespass, still the ultimate disposition of the horse is material to the question of damages; and as the prop- erty was applied in satisfaction of the plaintiff's debt, that circiunstance serves to reduce the damages accordingly." In Stewart v. Martin, 16 Vt. 397, the constable, ha\'ing seized prop- erty by virtue of mesne process of attachment out of his jurisdiction, was sued in trespass for such taking. It was held that the defendant might show, in mitigation of damages, that, having taken the property to a place within his jurisdiction, he attached it there, on the same process as the property of the same debtor, after the action of trespass had been commenced against him. The same rule was adopted in Board v. Head, 3 Dana's Rep. 489, 494. So in Briggins v. Grove, Cromp. & J. 36, it was held that where a distress was taken and sold unlawfully without previous appraisement, the party distrained on can only recover the value of the goods dis- trained less the amount of rent due, though he may recover special damages for the illegal sale. It is true it was held in Sowell v. Champion, 6 Ad. & El. 407, that SECT. IV.] TORRY V. BL.\CK. 811 where goods are seized under process upon a regular judgment in a place to which the process did not run, the plaintiff might recover the whole value of the goods, and not the mere damages sustained by their being taken in a wrong place. In delivering the opinion, Denman, C. J., says, "parties are not to extort what is justly due by the improper execution of a warrant." That may well be. But it must be borne in mind that exemplary or vindictive damages may in all proper cases be given for a trespass committed under color of legal process. And whenever a plaintiff, or the officer serving process, shall wantonly or injuriously attach or take in execution the property of the defendant without lawful authority, a jury may repress the evil and redress the injury by awarding exemplary damages. But it is not perceived that a regard either for public justice or the rights of individuals can re- quire that a plaintiff who sues out process in good faith which proves to be void, or the officer who executes such process, shall be thereby estopped from suing out or executing valid process upon the property thus -WTongfully taken, or that the party injured shall be thereby en- titled to recover the full value of the property in damages, although they were lawfully appropriated in satisfaction of his own debt. If the e\ndence be competent by way of mitigating damages, it is clearly admissible under the general issue. It could not be specially pleaded. Pleas in bar are in discharge of the action, and every plea must be pleaded to the action. A plea to the damages merely is vicious. Matters in mitigation, therefore, cannot be pleaded, and can only be given in evidence under the general issue. 2 Greenl. § 625; 1 Chit. PI. (7th ed.) 539, 541; Demick v. Chapman, 11 Joluis. 132. The judgment must be reversed, and a venire de novo awarded. TORRY V. BLACK. Court of Appeals, New York, 1874. [Reported 58 A'. F. 185.] This was an action for trespass for cutting and carrying away wood and timber from plaintiff's lands. In 1851 the father of the plaintiff died intestate, leaving a large real estate. He left surviving him a widow and the plaintiff, who was his only heir, then about one year old. The defendant was the grand- father of the plaintiff, and he took out letters of administration on the estate of plaintiff's father. The grandfather, after taking out letters of administration, and between the years 1851 and 1866, cut and car- ried away a large quantity of timber growing on the land that de- scended to the plaintiff. The plaintiff, on attaining his majority, brought this action to recover damages for such unlawful cutting and carrying away. 812 TORRY l\ BLACK. |CHAP. VI. The defence set up in the answer is, that the timber was cut with the consent and approval of plaintiff's mother, who was his guardian and entitled to dower in said premises, and that he afterward settled with ner for the said timber and was released by her from all claims therefor. Grover, J. . . . We have seen that the defendant was liable as a trespasser for cutting the timber. A trespasser cannot mitigate the damages by an offer to return the property to its owTier; but if the owner accept the property, or othei-\\'ise regain possession of it, it may be proved for that purpose, as in that case he is not deprived of his property. The inquiry is, what is the amount of damage sustained by the plaintiiT from the wrongful act of the defendant. But to war- rant this evidence the property must be received by the plaintiff or applied to his use with his assent. The law will not permit a wrong- doer to take the property of another and apply the same to his use without his assent; and, if so applied, the damages recoverable for the injury will not be thereby affected. When the owTier voluntarily re- ceives the proceeds of the property wrongfully taken, or directs or assents to their application to his use, such facts may be shown in mitigation, the same as the receipt or application of the identical property taken by the trespasser. The fact that the defendant was administrator of the estate of the plaintiff's father is wholly immaterial in this action, as he had nothing in that character to do ^\^th his real' estate, unless it became necessary to sell or mortgage it for the pay- ment of the debts of the intestate. The further facts, that the defendant was the father of the plaintiff's mother and that she was at the time of the death of his father under twenty-one years of age, can have no effect upon the legal rights of the parties. We have seen that, had the plaintiff been capable of contract- ing for himself and had received from the defendant the proceeds of the timber, or the same had been, with his assent, applied to his use, these facts might have been sho^\^l in mitigation of damages. But the plaintiff was not so capable. His mother was, before her appointment as his guardian by the surrogate, guardian for him, by statute, with the powers of a guardian in socage (1 R. S., 718, § 5); as such she was authorized to recover damages for, or reclaim and dispose of timber wrongfully cut upon his land. She had the right to recei^•e for his benefit the proceeds of any timber so cut. It would follow that if she so received such proceeds, or directed or assented to the application thereof to his benefit or that of his estate, the facts may be proved in mitigation of damages. The assent of the guardian, under the cir- cumstances, has the same effect as that of the plaintiff would have had had he been sui juris. The judgment appealed from must be reversed and a new trial or- dered, costs to abide event. All concur. Judgment reversed. V SECT. IV.] BURTRAW V. CLARK. 813 BURTRAW V. CLARK. Supreme Court of Michigan, 1894. [Reported 103 Mich. 383.] Hooker, J. Defendants dug a drain across the premises of the plaintiff, under drain proceedings that were void. It was admitted to be a trespass. Upon the trial the defendants claimed the right to show- that such ditch was a benefit, and not an injury, to plaintiff's land, and that the damages should be nominal. The court refused to permit this, and confined the e^adence of damages to the amount that would be required to place the land in its former condition, by filling the ditch, etc., which he held that plaintiff had the right to recover. The law aims to compensate parties for injuries, and ordinarily the rule that makes the injured party whole is a safe rule to adopt; but it is not invariably so, for such person owes some duty to a trespasser. In the majority of cases little difficulty is experienced, because the trespass is clearly injurious, and the cost of repair, where feasible, and the shrinkage in value, where it is not, furnish fair measures of damage. In a case where rebuilding is a physical impossibility there is no alternative but to apply the latter rule; and, on the other hand, where it is possible, there is perhaps no good reason why a plaintiff' should not recover the reasonable cost thereof incurred in good faith, and under the rules laid dowTi in Allison r. Chandler, 11 Mich. 542, perhaps the court should not be too reluctant to apply this rule, though it should bear heavily upon the defendant. But there are limits to its application. While it would be plainly absurd to deny to a plaintiff, by way of damage for the destruction of a few rods of fence, the expense actually incurred, or perhaps the prospective cost of rebuilding the same, upon the ground that his measure of damages should be the shrinkage in value of a thousand acres of land owing to sudi destruction, it would be as unjust to say that he should be allowed to reco\er the amount necessary to replace his farm, which had sunk into defendant's mine, where the filling of the hole caused thereby, though a physical possi- bility, would necessarily be attended by an expenditure of an amount many times the value of the farm in its former condition. In such case the value of the premises woidd be the measure of the damages. Another illustration of a case where this rule must apply is where an injury to the foundation of a building is caused by a trespass, to put which back in its former condition might require the tearing down and rebuilding of a valuable edifice. It would be inijust to require this, where the injury was not such as to endanger the building, and where it was trifling in comparison to the cost of remedying the defect. Still more palpable would be the injustice of allowing a plaintiff to recover 814 BRITISH ELEC, ETC. CO. V. UNDERG'd ELEC. RY. CO. [CHAP. VI. from a defendant the amount necessary to remove a valuable building, erected by him upon plaintiff's land, thereby greatly enhancing its ^•alue, which had thereby become the property of the plaintiff, and which he might thereafter remove or not at his own will. Undoubtedly, within certain bounds, a plaintiff might remove such a structure, and collect the cost thereof, as damages, if he saw fit to do so before action brought, because the law recognizes his right to use his land as he may choose. Without undertaking to determine where limitations upon such right begin, we are impressed with the injustice of allowing a plaintiff" in a trespass case to recover the prospective cost of removing a structure or other improvement, and to afterwards avail himself of the benefit of his property by retaining it. Reasons are urged in this case for the claim that the plaintiff should not be required to keep this drain. It is said that it would soon ripen into a prescriptive right, whereby others might require her to take care of water flowing from the lands of adjoining proprietors. However that may be, at the time she launched her action she was taking no step to incur the expense that she insists should be her measure of damage. So far as the evidence goes, there is nothing to show that she will not keep the drain, or that she wull ever suffer the damage, i. e., expend the money in refilling the ditch, which she has sought to recover. The defendants claim this to have been an improvement, whereby the value of the premises was increased, which they should have been al- lowed to show, and, if the jury should have so found the facts, the rule contended for by the defendants would be the proper measure of damages. On the contrary, if they found otherwise, and that the plaintiff intended to refill the ditch, it would not be unreasonable to allow the cost of doing so as an element of damage; it being apparent that such cost would not exceed the value of the premises. The de- fendants should have been permitted to introduce the evidence offered, and the case should have been submitted to the jury as indicated. The judgment Avail be reversed, and a new trial ordered. BRITISH WESTINGHOUSE ELECTRIC & MANUFACTURING CO. V. UNDERGROUND ELECTRIC RAILWAYS CO. House of Lords, 1912. [Reported [1912] yl. C. 673.] Appeal from an order of the Court of Appeal affirming an order of the King's Bench Division. By a contract under seal dated ]March 12, 1902, and made between the Metropolitan District Electric Traction Company, Limited, of the one part and the appellants of the other part, the appellants agreed SECT. IV.] BRITISH ELEC, ETC. CO. V. UNDERGD ELEC. RY. CO. 815 to provide, deliver, and erect in accordance with the specification annexed to the contract eight steam turbines and eight turbo alterna- tors combined at the price of £250,000 payable in instalments as therein provided. By a subsequent agreement another specification was sub- stituted for the specification originally annexed to the contract. As from April 25, 1902, the respondents became entitled to the benefit and subject to the liabilities of the contract, and the appellants ac- cepted the respondents in substitution for. the Metropolitan District Electric Traction Company. Clause 20 of the contract provided that every difference or dispute as to the meaning or effect of the contract and specification or in any way arising out of the same should be referred to arbitration under the provisions of the Arbitration Act, 1889. At various dates during the years 1904, 1905, and 1906 the appellants provided, delivered, and erected the eight machines mentioned in the contract. These machines were defective in design and efficiency, and, in particular, they failed to satisfy the pro^^sions of the contract wath respect to economy, and their steam consumption was extravagant and materially exceeded that which the appellants guaranteed by the contract. The respondents nevertheless accepted the machines and used them for the purposes of their railway, reserving always their right to damages in respect of the said breaches on the part of the appellants of the terms of the contract. In the year 1907 the appellants, with the respondents' consent, removed one of the machines from the respond- ents' premises and endeavoured by making alterations and improve- ments therein to bring it into conformity with the terms of the contract and if their endeavours had proved successful they intended to effect similar alterations and improvements in the other seven machines. The respondents, always reserving their rights as aforesaid, acquiesced in the appellants making experiments on the said machine. After ex- periments extending over many months the appellants failed to bring the machine into conformity with the contract. The respondents thereupon determined to replace the machines provided by the appel- lants by otliers, and they purchased machines of a different design and manufacture, hereinafter called Parsons machines, and substituted them for the machines provided by the appellants. The Parsons machines had a greater capacity and a much smaller steam consump- tion than the appellants' machines, even supposing that the latter had been in conformity with the contract. Disputes having arisen under the contract of March 12, 1902, these disputes were by an agreement dated November 21, 1908, referred to the final determination of a sole arbitrator. . . . The arbitrator found as a fact that the purchase of the Parsons machines was to the pecuniary advantage of the respondents, and that the superiority of the Parsons machines in efficiency and economy over those supplied by the appellants was so great that even if the appellants 81 G BRITISH ELEC, ETC. CO. V. UNDERG'd ELEC. RY. CO. [cHAP. VI. had delivered to the respondents machines in all respects complying with the conditions of the contract it would yet have been to the pecu- niary advantage of the respondents at their own cost to have replaced the machines supplied by the appellants by Parsons machines so soon as the latter were to be obtained. . . . The questions of law submitted for the opinion of the Court were: 1. Whether the contention of the appellants above set forth in paragraph 17 of the case was well founded. 2. If not, whether the respondents were right in their contention that the cost to them of the purchase and installation of the Parsons ma- chines was recoverable by them from the appellants as part of the respondents' damages. The questions raised by the special case were argued before a Divi- sional Court consisting of the Lord Chief Justice and Hamilton and Avory, JJ. The Court adjudged that the contention of the appellants was not well founded and that the contention of the respondents on the facts as stated was correct. The arbitrator made his aw'ard whereby, after stating that he had adopted and acted upon the answers given by the Court to the questions submitted in the special case, he awarded that the appellants were not entitled to recover anything from the respondents in respect of their claim, and that the respondents were entitled to recover the sum of £15,394 in respect of their counter-claim. A copy of the special case and the answers of the Court was annexed to the award and made to form part thereof. The appellants then applied to a Divisional Court consisting of Pickford and Lush, JJ., to set aside the award or remit it back to the arbitrator for reconsideration upon the ground that the answers given by the Divisional Court to the questions submitted by the special case were wrong in law and consti- tuted a misdirection to tlie arbitrator, and there was therefore an error of law on the face of the award. The Court, considering itself bound by the opinions given by the Divisional Court, dismissed the appli- cation without argument. The appellants appealed to the Court of Appeal (Vaughan Williams, Buckley, and Kennedy, L.JJ.). The Court held, first (Vaughan Williams, L. J., dissenting) that it was competent for them to entertain the appeal, and, secondly, (Buckley, L. J., dissent- ing) that the appeal failed on the merits. Buckley, L. J., differed upon the construction of the special case. As he read the findings of the arbitrator they amounted to a statement that the reasonableness and prudence of the course taken by the respondents were attributable not only to the position in which they found themsehes by the breach of contract, but also to a regard for their own pecuniary advantage, and he thought that the appellants were entitled to a decision of the arbitra- tor upon the first point apart from the second; but except upon the question of construction he did not differ from the conclusions of the other members of the Court. Viscount Haldane, L. C. . . . The arbitrator appears to me to have SECT. IV.] BRITISH ELEC, ETC. CO. V. UNDERG'd ELEC. RY. CO. 817 found clearly that the effect of the superiority of the Parsons machines and of their efficiency in reducing working expenses was in point of fact such that all loss was extinguished, and that actually the respond- ents made a profit by the course they took. They were doubtless not bound to purchase machines of a greater kilowatt power than those originally contracted for, but they in fact took the wise course in the circumstances of doing so, with pecuniary advantage to themselves. They had, moreover, used the appellants' machines for several years, and had recovered compensation for the loss incurred })y reason of these machines not being during these years up to the standard required by the contract. After that period the arbitrator found that it was reasonable and prudent to take the course they actually did in pur- chasing the more powerful machines, and that all the remaining loss and damages was thereby wiped out. In order to come to a conclusion on the question as to damages thus raised, it is essential to bear in mind certain propositions which I think are well established. In some of the cases there are expressions as to the principles governing the measure of general damages which at first sight seem difficult to harmonize. The apparent discrepancies are, however, mainly due to the A-arying nature of the particular questions submitted for decision. The quantum of damage is a question of fact, and the only guidance the law can give is to lay down general principles which afford at times but scanty assistance in dealing with particular cases. The judges who give guidance to juries in these cases have necessarily to look at their special character, and to mould, for the purposes of different kinds of claim, the expression of the general prin- ciples which apply to them, and this is apt to give rise to an appearance of ambiguity. Subject to these observations I think that there are certain broad principles which are quite well settled. The first is that, as far as possi- ble, he who has proved a breach of a bargain to supply what he con- tracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed. The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this fii"st principle is (}ualified by a second, which imposes on a plaintiff the duty of taking all reason- able steps to mitigate the loss consequent on the breach, and debars him , frorii claiming any part of the damage which is due to his neglect to take such steps. In the words of James, L. J., in Dunkirk Colliery Co. v. Lever, "The person who has broken the contract is not to be exposed to additional cost by reason of the plaintiff's not doing what they ought to have done as reasonable men, and the plaintift's not being under any obligation to do anything otherwise than in the ordinary course of business." As James, L. J., indicates, this second principle does not impose on the plaintiff an obligation to take any step which a reasonable and 818 BRITISH ELEC, ETC. CO. V. UNDERG'd ELEC. RY. CO. [CIL\P. VI. prudent man would not ordinarily take in the course of his business. But when in, the course of his business he has taken action arising out of the transaction, which action has diminished his loss, the effect in actual diminution of the loss he has suffered may be taken into account even though there was no duty on him to act. Staniforth v. Lyall illustrates this rule. In that case the defendants had chartered a ship to New Zealand, where they were to load her, or by an agent there to give the plaintiff, the owner, notice that they aban- doned the adventure, in which case they were to pay £500. The ship went to New Zealand, but found neither agent nor cargo there, and the captain chose to make a circuitous voyage home by way of Batavia. This a oyage, after making every allowance for increased expense and loss of time, was more profitable than the original venture to New Zealand would have been. The Court of Common Pleas de- cided that the action was to be viewed as one for a breach of contract to put the cargo on board the plaintiff's vessel for which the plaintiff was entitled to recover all the damages he had incurred, but that he was bound to bring into account, in ascertaining the damages arising from the breach, the advantages which had accrued to him because of the course which he had chosen to adopt. I think that this decision illustrates a principle which has been recog- nized in other cases, that, provided the course taken to protect himself by the plaintiff in such an action Avas one which a reasonable and pru- dent person might in the ordinary conduct of business properly have taken, and in fact did take whether bound to or not, a jury or an arbi- trator may properly look at the whole of the facts and ascertain the result in estimating the quantum of damage. Recent illustrations of the way in which this principle has been ap- plied, and the facts have been allowed to speak for themselves, are to be found in the decisions of the Judicial Committee of the Privy Council in Erie County Natural Gas and Fuel Co. v. Carroll and Wertheim i\ Chicoutimi Pulp Co. The subsequent transaction, if to be taken into account, must be one arising out of the consequences of the breach and in the ordinary course of business. This distinguishes such cases from a quite different class illustrated by Bradburn v. Great Western Ry. Co., Avhere it was held that, in an action for injuries caused by the defend- ants' negligence, a sum received by the plaintiff* on a policy for insurance against accident could not be taken into account in reduction of dam- ages. The reason of the decision was that it was not the accident, but a contract wholly independent of the relation between the plaintiff and the defendant, which gave the plaintiff his advantage. Again, it has been held that, in an action for delay in discharging a ship of the plain- tiffs whereby they lost their passengers whom they had contracted to carry, the damages ought not to be reduced by reason of the same per- sons taking passage in another vessel belonging to the plaintiffs: Jebsen V. East and West India Dock Co., a case in which what was relied on as SECT. IV.] BRITISH ELEC, ETC. CO. V. UNDERG'd ELEC. RY. CO. 819 mitigation did not arise out of the transactions the subject-matter of the contract. The cases as to the measure of damages for breach of a covenant by a lessee to deUver up the demised premises in repair illustrate yet another class of authorities in which the qualifying rule has been excluded. In Joyner v. Weeks the lessor had made a lease to another lessee by way of anticipation, to commence from the expiration of the term of this lease, and the new lessee had made no claim to be reimbursed the cost which he had incurred in repairing after the expiration of the demised lease. Wright, J., held that the true test was the amount of diminution in value to the lessor, not exceeding the cost of doing the repairs. The Court of Appeal, including Lord Esher and Fry, L. J., took a different view. The}'' thought that there had been a constant practice of laying do\\Ti the measure of damages as being the cost of putting into repair, and that in the particular class of cases wnth which they were dealing it was a highly convenient rule which ought not to be disturbed. Any other measure appeared to involve complicated inquiries. Moreover, the arrangement between the lessor and the new lessee was res inter alios acta with which the original lessee had nothing to do and which he was not entitled to set up. I think the principle which applies here is that which makes it right for the jury or arbitrator to look at what actually happened, and to balance loss and gain. The transaction was not res inter alios acta, but one in which the person whose contract was broken took a reasonable and prudent course quite naturally arising out of the circumstances in which he was placed by the breach. Apart from the breach of contract, the lapse of time had rendered the appellants' machines obsolete, and men of business would be doing the only thing they could properly do in replacing them with new and up-to-date machines. The arbitrator does not in his finding of fact lay any stress on the increase in kilowatt power of the new machines, and I think that the proper inference is that such increase was regarded by him as a natural and prudent course followed by those whose object was to avoid further loss, and that it formed part of a continuous dealing with the situation in which they found themselves, and was not an independent or dis- connected transaction. For the reasons I have given I think that the. questions of law stated by the arbitrator in the special case have been wrongly answered by the Courts below. The result is that the award cannot stand and nmst be sent back to the arbitrator, with a declaration that the contention of the appellants on the first question so far, but only so far, as they con- tended that the several facts relied upon by them were relevant matter to be considered by the arbitrator in assessing the damages was right, and that of the respondents on the second question was wrong. The appellants are entitled to their costs here and in the Court of Appeal, and of the proceedings in the Divisional Court on the motion to set aside the award. 820 PERROTT V. SHEARER. [CHAP. VI. PERROTT V. SHEARER. Supreme Court of Michigan, 1868. [Reported 17 Mich. 48.] This was an action of trespass against the defendant, plaintiff in error, for seizing and taking certain goods of the plaintiff, defendant in error. The defendant below pleaded the general issue and gave notice that the property seized was in possession of one Henry H. Swinscoe; that defendant, at said time, was Sheriff of Bay county; that on the 24th day of July, 1865, a writ of attachment was issued out of the Bay County Circuit Court, against the goods and chattels of said Swinscoe, and that he seized and took the property mentioned, if at all, by virtue of said attachment, etc. CooLEY, C. J. . . . The principal question in the case springs from the fact that the goods, while under the control of the defendant, in pursuance, as the plaintiff claimed, of said attaclunent levy, were accidentally destroyed by fire. The plaintiff, it appears, held, at the time, insurance policies upon them to their full value, and, after the fire, presented to the insurance companies proofs of the loss, and re- ceived pay therefor. Upon this state of facts it was claimed by defend- ant, that plaintiff's position was the same as if he had repossessed him- self of the goods by replevin; and that he was entitled to recover damages only for their detention up to the time of the fire. The Cir- cuit Judge held differently, and instructed the jury that the plaintiff was entitled to recover the full value of the goods, and he had judgment for the value accordingly. It certainly strikes one, at fu'st, as somewhat anomalous, that a party should be in position to legally recover of two different parties the full value of goods which he has lost ; but we think the law warrants it in the present case, and that the defendant suffers no wrong by it. He is found to be a wrongdoer in seizing the goods, and he can not relieve himself from responsibility to account for their full value except by restoring them. He. has no concern with any contract the plaintiff may have with any other party in regard to the goods, and his rights or liabilities can neither be increased nor diminished by the fact that such a contract exists. He has no equities as against the plaintiff which can entitle him under any circumstances, to an assignment of the plaintiff's policies of insurance. The accidental destruction of the goods in his hands was one of the risks he run when the trespass was committed, and we do not see how the law can relieve him from the consequences. If the owner, under such circumstances, keeps his in- terest insured, he can not be held to pay the money expended for that SECT. I-V.] BROSNAN V. SWEETSER. 821 purpose for the interest of the trespasser. He already has a right of action for the full value of the goods, and he does not give that away by taking a contract of insurance. For the latter he pays an equivalent in the premium, and is, therefore, entitled to the benefit of it, if anj^ benefit shall result. The trespasser pays nothing for it, and is, there- fore, justly entitled to no return. The case, we think, is within the principle of Merrick v. Brainard, 38 Barb. 574, which appears to us to have been correctly decided. The plaintiff recovers of the defendant for the wrong that has been done hini in taking his goods ; and he re- covers of the insurance company a large sum for a small outlay, because such payment was the risk they assumed, and for which they were fairly compensated. It is not a question of importance in this inquiry, whether the act of the defendant caused the loss or not: his equitable claim to a reduction of damages, if he could have any, would spring from the fact that the plaintiff recovers pay for his property twice ; but the answer to this is, that he recovers but once for the wrong done him, and he receives the insurance money upon a contract to which the defendant is in no way privy, and in respect to which his own wrongful act can give him no equities. BROSNAN V. SWEETSER. Supreme Court of Indiana, 1891. [Reported 127 Ind. 1.] Olds, C. J. This is an action by the appellee against the appellants for damages resulting from injuries sustained by the appellee in falling through a trap-door in the store-room of appellants. . . . One element of damage is the reasonable value of properly nursing and caring for the injured person. If this be done by some good friend or member of the family, who donated his services, that is the good fortune of the appellee, and a matter with which the persons liable have no concern. If she had paid ten times the true value of such services she could only have recovered what such services were rea- sonably worth. Her contract or liability has nothing to do with the liability of the appellants. If they are liable for damages on account of the injuries, they are liable for the reasonable value of the necessary services of a nurse, the same as the services of a physician or surgeon. Pennsylvania Co. v. Marion, 104 Ind. 239; Summers v. Tarney, 123 Ind. 5G0. There is no error in the record. Judgment affirmed-, with costs. 822 ARMORY I'. DELAMIRIE. [CHAP. VI. ELMER V. FESSENDEN. Supreme Judicial Court of Massachusetts, 1891. [Reported 154 Mass. 427.] Holmes, J. This i.s an action for words spoken by the defendant, and falsely alleging that the silk furnished by the plaintiff to his work- men contained arsenic. . . . The plaintiff claimed, as part of his damages, trouble which he was put to necessarily, in order to determine whether there was arsenic in his silk ; and to protect his employees. He estimated the amount at S5.24 per day, and the jury allowed him for eight days at that rate. No exception was taken to the ruling allowing a recovery for this item, but instructions were excepted to which allowed the plaintiff to recover irrespective of the state of things between himself and a company in whose general employ he was, and to which he was accountable for the time spent as stated. That company had told the plaintiff that they should make no deduction from his salary because of the lost time. This ruling was correct. The plaintiff does not recover because he was compelled to break his contract with the company, but for his own time and trouble, irrespective of his contracts. His cause of action for that could not be affected if a stranger saw fit to pay him for the same time, either by way of gift or upon consideration. Exceptions overruled. ARMORY V. DELAMIRIE. Middlesex Assizes, 1722. [Reported 1 Stra. 505.] The plaintiff being a chimney-sweeper's boy found a jewel and carried it to the defendant's shop (who was a goldsmith) to know what it was, and delivered it into the hands of the apprentice, who, under pretence of weighing it, took out the stones, and calling to the master to let him know it came to three halfpence, the master offered the boy the money, who refused to take it, and insisted to have the thing again; whereupon the apprentice delivered him back the socket with- out the stones. And now in trover against the master these points were ruled : 1. That the finder of a jewel, though he does not by sufch finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and con- sequently may maintain trover. SECT. IV.] THE WINKFIELD. 823 2. That the action well lay against the master, who gives a credit to his apprentice, and is answerable for his neglect. Jones v. Hart, Salk. 441, Cor. Holt, C. J.; Mead v. Hamond; Grammer v. Nixon, 1 Stra. 653. 3. As to the value of 'the jewel, several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth; and the Chief Justice. directed the jury, that unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages: which they accordingly did. THE WINKFIELD. Court of Appeal, 1901. [Reported [1902] P. 42.] Appeal by the Postmaster-General against a decision of Sir F. H. Jeune, P., confirming a report of the registrar disallowing a portion of a claim in respect of the contents of certain mail-bags lost in a collision. The case raised the question as to the rights of the Postmaster- General as bailee of letters and parcels in transit by post. Collins, M. R. This is an appeal from the order of Sir Francis Jeune dismissing a motion made on behalf of the Postmaster-General in the case of The Winkfield. The question arises out of a collision which occurred on April 5, 1900, between the steamship Mexican and the steamship Winkfield, and which resulted in the loss of the former with a portion of the mails which she was carr;^dng at the time. The owners of The Winkfield under a decree limiting liability to £32,514 17s. lOd. paid that amount into court, and the claim in ques- tion was one by the Postmaster-General on behalf of himself and the Postmasters-General of Cape Colony and Natal to recover out of that sum the value of letters, parcels, &c., in his custody as bailee and lost on board the Mexican. The case was dealt with by all parties in the Court below as a claim by a bailee who was under no liability to his bailor for the loss in ques- tion, as to which it was admitted that the authority of Claridge v. South Staffordshire Tramway Co. was conclusive, and the President accordingly, without argument and in deference to that authority, dismissed the claim. The Postmaster-General now appeals. The question for decision, therefore, is whether Claridge's Case was well decided. I emphasize this because it disposes of a point which was faintly suggested by the respondents, and which, if good, would dis- 824 THE WINKFIELD. [CHAP. VI. tinguish Claridge's Case, namely, that the applicant was not himself in actual occupation of the things bailed at the time of the loss. This point was taken below, and having regard to the course followed by all parties on the hearing of the motion, I think it is not open to the re- spondents to make it now, and I therefore deal with the case upon the footing upon which it was dealt with on the motion, namely, that it is covered by Claridge's Case. I assume, therefore, that the subject- matter of the baihnent was in the custody of the Postmaster-General as bailee at the time of the accident. For the reasons which I am about to state I am of opinion that Claridge's Case was wrongly decided, and that the law is that in an action against a stranger for loss of goods caused by his negligence, the bailee in possession can recover the value of the goods, although he would have had a good answer to an action by the bailor for damages for the loss of the thing bailed. It seems to me that the position, that possession is good against a \\Tongdoer and that the latter cannot set up the jus tertii unless he claims under it, is well established in our law, and really concludes this case against the respondents. As I shall shew presently, a long series of authorities establishes this in actions of trover and trespass at the suit of a possessor. And the principle being the same, it follows that he can equally recover the whole value of the goods in an action on the case for their loss through the tortious conduct of the defendant. I think it involves this also, that the wrongdoer who is not defending under the title of the bailor is quite unconcerned with what the rights are between the bailor and bailee, and must treat the possessor as the owner of the goods for all purposes quite irrespective of the rights and obligations as between him and the bailor. I think this position is well established in our law, though it may be that reasons for its existence have been given in some of the cases which are not quite satisfactory. I think also that the obligation of the bailee to the bailor to account for what he has received in respect of the de- struction or conversion of the thing bailed has been admitted so often in decided cases that it cannot now be questioned; and, further, I think it can be shewTi that the right of the bailee to recover cannot be rested on the ground suggested in some of the cases, namely, that he was liable over to the bailor for the loss of the goods converted or destroyed. It cannot be denied that since the case of Armory v. Delamirie, not to mention earlier cases from the Year Books onward, a mere finder may recover against a MTongdoer the full value of the thing converted. That decision involves the principle that as between possessor and wrongdoer the presmnption of law is, in the words of Lord Campbell in Jeffries v. Great Western Ry. Co., "that the person who has possession has the property." In the same case he says: "I tun of opinion that the law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, i. a wrongdoer, and cannot defend himself SECT. IV.] FOWLER V. OILMAN. 825 by shewing that there was title in some third person, for against a wrongdoer possession is title. The law is so stated l)y the very learned annotator in his note to Wilbrahani v. Snow." Therefore it is not open to the defendant, being a wrongdoer, to inquire into the nature or limitation of the possessor's right, and unless it is competent for him to do so the question of his relation to, or liability towards, the true owner cannot come into the discussion at all: and, therefore, as between those two parties full damages have to be paid without any further in- quiry. The extent of the liability of the finder to the true owner not be- ing relevant to the discussion between him and the wrongdoer, the facts which would ascertain it would not have been admissible in evidence, and therefore the right of the finder to recover full damages cannot be made to depend upon the extent of his liability over to the true ownier. To hold otherwise would, it seems to me, be in effect to permit a wTong- doer to set up a jus tertii under which he cannot claim. But, if this be the fact in the case of a finder, why should it not be equally the fact in the case of a bailee? Why, as against a wrongdoer, should the nature of the plaintiff's interest in the thing converted be any more rele- vant to the inquiry, and therefore admissible in evidence, than in the case of a finder? It seems to me that neither in one case nor the other ought it to be competent for the defendant to go into evidence on that matter. ... Appeal allowed. FOWLER V. OILMAN. Supreme Judicial Court of Massachusetts, 1847. [Reported 13 Met. 267.] Trover for a wagon. At the trial in the court of common pleas, before Washburn, J., there was evidence tending to show that one Orfut, under whom the defendant claimed title to the wagon, bargained the same to Henry Fowler, under whom the plaintiff claimed it, the bargain being that the wagon should be said Henry's upon his paying a certain price; that Orfut sold his interest in the wagon to the defendant, who had knowledge of the aforesaid bargain, and that said Henry sold his interest in the wagon to the plaintiff; that said Henry made several payments towards the agreed price; and that when Orfut sold his in- terest to the defendant, a balance of $14 was due towards the contract price for the wagon. It was also in evidence that, while the wagon was in the defendant's possession, the plaintiff tendered to him the aforesaid sum of $14, and demanded the wagon of him, and that he refused to accept the sum tendered, denying the plaintiff's title. No money was paid into court. 826 JACKSON V. TURRELL. [CHAP. VI. and there was no evidence that the defendant demanded the S14 of the plaintiff, after the tender. The plaintiff's counsel asked the judge to instruct the jury that, in fixing the amount of damages, if they should find for the plaintiff, they should not deduct the $14 from the estimated value of the wagon. The judge so instructed the jury, who found a verdict for the plaintiff for the full value of the wagon. The defendant alleged exceptions to the judge's instructions. Shaw, C. J. It appears to us that the jury should have been in- structed to deduct the fourteen dollars from the value of the wagon, in case of a verdict for the plaintiff. No doubt the true general rule of damages, in trover, is the value of the goods at the time of conversion, with interest. Kennedy v. Whitwell, 4 Pick. 466. This rule applies where the plaintiff is the general owTier, or is answerable over to others. But where the plaintiff admits that the defendant has a lien on the propert}', to a certain amount, that amount may be deducted by the jury, in assessing damages. Green v. Farmer, 4 Bur. 2214, 2223. Chamberlin r. Shaw, 18 Pick. 283. Dresser Manuf. Co. r. Waterston, 3 Met. 9. It is to be taken, in this case, and the plaintiff, by his tender, has admitted, that the defendant had the same lien on the wagon which Orfut had when he sold his interest therein to the defendant, namely, a lien for the unpaid balance of, the price which Henry Fowler had agreed to pay for the wagon, before it should become his property. The amount of that lien is agreed to have been fourteen dollars. ^ By consent of parties, the verdict may be amended by deducting fourteen dollars therefrom, and judgment be rendered on the verdict so amended. Otherwise, the verdict will be set aside, and a new trial had in the court of common pleas. JACKSON r. TURRELL. Supreme Court of Xew Jersey, 1877. [Reported 39 N. J. L. 329.] Dixon, J. Byard, being the owner of a plot of land in Paterson, mortgaged it, Feb. 2, 1871, to the Washington Life Insurance Company, which forthwith duly recorded the mortgage. Afterwards, on Feb. 6, 1872, he executed a second mortgage thereon to Benson, which was duly registered and then assigned to the plaintiff. Subsequently Byard placed a boiler and engine upon the premises. On Oct. 1, 1872, he conveyed the property to the Paterson Silk IManufacturing Company, which, on Jan. 16, 1873, executed to Miller a mortgage upon the realty, and a separate mortgp^ge, securing the same debt, upon the boiler and engine as chattels. On June 26, 1874, Miller sold the boiler and engine. SECT. IV.] JACKSON V. TURRELL. 827 under his chattel mortgage, to the defendant, who immediately re- moved them from the premises.""^ . . . The next objection which the defendant urges is, that as there was a prior unsatisfied mortgage upon the premises, the holder of which had not waived his right to recover of the defendant for the removal of the fixtures, the plaintiff being second mortgagee only, could not maintain an action. The ground upon which a mortgagee, not in possession, may support a suit at law against the mortgagor, or his alienee, for damages resulting from acts injurious to the mortgaged premises, has not been settled in the courts of this State, and the adjudications on that subject, outside of New Jersey, are not in accord, as will be per- ceived by a reference to the cases already cited. Sometimes the mort- gagee has been deemed the legal owner of the fee as against the mort- gagor and his assigns, and so entitled to hold them responsible for any act, beyond ordinary use, injurious to the land, to the full extent of that injury; and in Gooding v. Shea, 103 Mass. 360, a third mortgagee was regarded as standing in that position, and haxdng the right to full damages, notwithstanding the fact that the prior mortgagees had su- perior rights to the same damages, unless the defendant could show that some of those prior mortgages had appropriated the damages to themselves. See also Byrom v. Chapin, 113 Mass. 308, and King v. Bangs, 120 Mass. 514. For so broad a claim on behalf of a first mortgagee, technical argu- ments, deserving of serious consideration, may perhaps be adduced; but, I think, no subsequent mortgagee can establish a like title. The reasons which support the claim of the first mortgagee defeat the claim of every other one, to be regarded as the legal owner of the fee. A second mortgagee is, in law, as in equity, a mere lien-holder, and in that character alone can he enforce any demand for redress. In the case of Van Pelt v. McGraw, 4 Comst. 110, the right of mort- gagees to maintain such suits is declared to rest upon the principle that the mortgage, as a security, has been impaired, and the damages, it is said, are to be limited to the amount of injury to the mortgage, however great the injury to the land may be. Upon this principle all mortgagees may stand, and it is recommended by the consideration that it gives to each party actually injured a remedy measured by the injury received. It obviates some technical objections, as well as some practical difficulties, which attend the rule first adverted to, and enables the courts of law to do justice by their equitable action on the case. Sometimes the facts disclosed at the trial may be of such a nature as to make it doubtful whether the damages should go to the plaintiff or to an earlier mortgagee; but, in those cases, the defendant is placed in no greater danger than is a defendant in an action upon a policy of insurance, brought by the owner, where the loss is made pay- able to the mortgagee, and the language of the court in such a case 1 Part of the opinion is omitted. 828 KING V. BANGS. [CHAP. VI. (Martin v. Franklin Fire Insurance Co., 9 Vroom, 140, 145) indicates a mode in which all interests may be guarded : " The rights of the (earlier) mortgagee can be protected by payment of the money into court, and the insurer (defendant) may obtain indemnity against any subsequent suit by the (earlier) mortgagee, by the action of the court into which the money is paid; if actions be pending at the same time by the owner and the mortgagee (two mortgagees), the court, under its equitable powers, can so control the litigation that no injustice will be done." KING V. BANGS. Supreme Judicial Court of Massachusetts, 1876. [Reported 120 Mass. 514.] Tort for breaking and entering the plaintiff's close, and removing certain fixtures therefrom. The declaration contained two counts. At the trial in the Superior Court, before Brigham, C. J., the jury re- turned a verdict for the plaintiff, and a bill of exceptions was allowed, the materials parts of which appear in the opinion. Colt, J. Both counts in the plaintiff's declaration are for trespass to real estate, and allege the taking and carrying away of the fixtures and other parts of a dwelling-house thereon standing. The plaintiff at the trial claimed to recover as mortgagee for the injury to his security. The defendants ofPered to show that after the injury complained of, and before this action was begun, the plaintiff, under the power of sale in his mortgage, sold the premises for more than enough to pay his debt and all prior incumbrances, and conveyed the same to th'e purchaser. The defendants' answer was a general denial, but no ques- tion was then made or is now made as to the admissibility of the evidence under the pleadings. The judge ruled that the measure of damages was the actual amount of the injury done to the building, and excluded the evidence. We are of opinion that this evidence upon the question of damages was improperly excluded. A mortgagee, if there is anything due on his mortgage, whether in possession or not, may maintain an action of tort, and recover the full value of fixtures wrongfully removed, on the ground that his security has been thereby diminished. Under our decisions, the right to recover does not depend on proof of the insufficiency of the security; because, until the whole debt is paid, the mortgagee has a right to the whole security pledged, and, if deprived of any part of it, he is entitled to full redress therefor. A mortgagor in possession may also recover for the same injury in an action of trespass, by way of aggravation. It does not follow, however, that the defendant is compelled to pay full damages to each successively, because he may escape the claim of the latter SECT. IV.] KING V. BANGS. 829 by showing that he has settled with one having superior right; and, satisfaction so made, discharges the claims of all. When the action is trespass for a breach of the close, damages for the removal of the fixtures are incidental to the action and separable from it. But, in whatever form recovered, they arise out of and pertain to the estate, and, when recovered by a mortgagee, must be applied by him in pay- ment of the mortgage debt. It was accordingly held in Gooding v. Shea, 103 Mass. 360, that a mortgagee could recover the full amount of the damages caused to the estate by the removal of the fixtures, without regard to the sufficiency of the security, and although the mortgagor in possession had sued the defendant for the same acts. See, also, Byrom v. Chapin, 113 Mass. 308. The rule Vv^hich prevails in New York is otherwise, and the plaintiff is required in such case to show the insuffi- ciency of the security. Lane v. Hitchcock, 14 Johns. 213. Gardner v. Heartt, 3 Denio, 232^ In the case at bar, evidence of the pajTnent of the plaintiff's mort- gage and the termination of his interest in the mortgaged estate was offered by the defendant. The general rule is that damages must be precisely commensurate with the injury which the plaintiff suffers by the act of WTong at the time it was committed; but under this rule the defendant is constantly permitted to give in evidence the plaintiff's subsequent change of relation to the property, for the purpose of show- ing that the damages, to which he would otherwise have been entitled, have been thereby diminished. Thus, if he has only a special property, or a qualified interest, subject to which the defendant has acquired title, and the plaintiff can be indemnified by a sum less than the full value, that sum is the measure of damages. Chamberlin v. Shaw, 18 Pick. 278. So when in trover the property has been restored to the plaintiff, or been applied to the pa^Tnent of his debts, or otherwise come to his use the fact may be showTi in mitigation of damages. Pierce v. Benjamin, 14 Pick. 356. Kaley v. Shed, 10 Met. 317. Squire V. Hollenbeck, 9 Pick. 551. And in no case can a party having a special or qualified interest recover damages beyond the extent of his interest, except as he is trustee, and responsible over to the general owner. Jarvis v. Rogers, 15 Mass. 389. If the plaintiff were permitted here to recover full damages, he would either hold the same with no re- sponsibility over, or he would be obliged to pay it over immediately to the owner of the equity at the time of the injury, and who then had a right of action for it. The ownier of the land subject to the mortgage is the only one, on the evidence offered, who appears to have suffered any actual damage by the removal of the fixtures ; and there is no rule of law which prevents the defendant from showing that fact in just mitigation of the plaintiff's claim for damages at least. Exceptions sustained. 830 DAY V. WOODWORTII. [CHAP. VI. DAY r. WOODWORTH. Supreme Court of the United States, 1851. [Reported 13 How. 363.] Grier, J. The plaintiff in error was plaintiff below in an action of trespass, charging the defendants with tearing down and destroying his niilldani. The defendants pleaded in justification that the Berkshire Woollen Company owned mills above the dam of plaintiff, who illegally erected and maintained the same, so as to injure the mills above; that by direction of said company, and as their agents and servants, they did enter plaintiff's close, and did break down and demolish so much of the plaintiff's dam as was necessary to remove the nuisance and injury to the mills above, and no more, and as they la^vfuUy might. To this plea the plaintiff replied de injuria, &c. On the trial of this issue, the defendants " claimed the right to begin and offer their evidence first, and open and close the argument. The plaintiff claimed the same right. The court ruled in favor of the de- fendants, to which the plaintiff excepted." This ruling of the court is now alleged as error. Our attention has been pointed to nimierous decisions of English and American courts on this subject, which we think it unnecessary to notice more particularly, than to state, that the question whether a defendant in trespass who pleads a plea in justification only, has a right to begin and conclude, has been differently decided in different courts. It is a question of practice only, and depends on the peculiar rules of practice which the court may adopt. The English courts have regretted that an objection to the ruling of the court at nisi prius on this question should ever have been permitted to be received as a ground for a new trial. But although a court may sometimes grant a new trial where the judge has not accorded to a party certain rights to which, by the rules of practice of the court, he may l)e justly entitled, we are of opinion that the ruling of the court below on such a point is not the proper subject of a bill of exceptions or a writ of error. A question as to the order in which counsel shall address the jury does not affect the merits of the controversy. As a matter of practice, the Circuit Court of Massachusetts had a right to make its own rules. The record does not show that the rule of the court is different from their judgment on- this occasion. So that the plaintiff' has failed to show any error in the de- cision, assuming it to be a proper subject of exception. The great question, on the trial of this case, appears to have been whether the plaintiff's dam was higher than he had a right to main- tain it, and if so, whether the defendants had torn down more of it, or made it lower than they had a right to do. SECT. IV.] DAY V. WOOD WORTH. 8.31 The plaintiff's counsel requested the court to instruct the jury that "they might allow counsel -fees, &c., if there was any excess in taking down more of the dam than was justifiable, and give as a reason that the defendants thereby became trespassers ab initio." The court instructed the jury " that if they should find for the plain- tiff on the first ground, viz., that the defendants had taken down more of the dam than was necessary to relieve the mills above, unless such excess was wanton and maliciousj then the jury would allow ua damages the cost of replacing such excess, and compensation for any delay or damage occasioned by such excess, but not any thing for counsel-fees or extra compensation to engineers." This instruction of the court is excepted to, on two grounds. First, because " this being an action of trespass, the plaintiff was not limited to actual damages proved," and secondly, that the jury, under the conditions stated in the charge, should have been instructed to include in their verdict for the plaintiff, not only the actual damages suffered, but his counsel-fees and other expenses incurred in prosecuting his suit. It is a well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant having in view the enormity of his offence rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By the common as well as by statute law, men are often punished for aggravated misconduct or lawless acts, by means of a civil action, and the damages, inflicted by way of penalty or punisliment, given to the party injured. In many civil actions, such as libel, slander, seduction, &c., the wrong done to the plaintiff is incapable of being measured by a money standard; and the damages assessed depend on the circum- stances, showing the degree of moral turpitude or atrocity of the defend- ant's conduct, and may properly be termed exemplary or vindictive rather than compensatory. In actions of trespass, where the injury has been wanton and mali- cious, or gross and outrageous, courts permit juries to add to the meas- ured compensation of the plaintiff which he would have been entitled to recover, had the injury been inflicted without design or intention, something farther by way of punislmient or example, which has some- times been called "smart money." This has been always left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case. It must be evident, also, that as it depends upon the degree of malice, wanton- ness, oppression, or outrage of the defendant's conduct, the punishment of his delinquency cannot be measured by the expenses of the plaintiff 832 , DAY v. WOODWORTH. [CHAP. VI. in prosecuting his suit. It is true that damages, assessed by way of example, may thus indirectly compensate the plaintiff for money ex- pended in counsel-fees; but the amount of these fees cannot be taken as the measure of punishment or a necessary element in its infliction. This doctrine about the right of the jury to include in their verdict, in certain cases, a sum sufficient to indemnify the plaintiff for counsel- fees and other real or supposed expenses over and above taxed costs, seems to have been borrowed from the civil law and the practice of the courts of admiralty. At first, by the common law, no costs were awarded to either party, eo nomine. If the plaintiff failed to recover he was amerced pro falso clamore. If he recovered judgment, the de- fendant was in misrricordia for his unjust detention of the plaintiff's debt, and was not therefore punished with the cxpcnsa litis under that title. But this being considered a great hardship, the statute of Glou- cester (6 Ed. 1, t?. 1,) was passed, which gave costs in all cases when the plaintiff" recovered damages. This was the origin of costs de in- cremenio; for when the damages were found by the jury, the judges held themselves obliged to tax the moderate fees of coimsel and attorneys that attended the cause. See Bac. Abr. tit. Costs. Under the provisions of this statute every court of common law has an established system of costs, which are allowed to the successful party by way of amends for his expense and trouble in prosecuting his suit. It is true, no doubt, and is especially so in this country, (where the legislatures of the different States have so much reduced attorneys' fee-bills, and refused to allow the ho7iorarium paid to counsel to be exacted from the losing party,) that the legal taxed costs are far below the real expenses incurred by the litigant; yet it is all the law allows as expensa litis. If the jury may, "if they see fit," allow counsel-fees and expenses as a part of the actual damages incurred by the plaintiff, and then the court add legal costs de incremento, the defendants may be truly said to be in misericordia, being at the mercy both of court and jury. Neither the common law, nor the statute law of any State, so far as we are informed, has invested the jury with this power or privilege. It has been sometimes exercised by the permission of courts, but its results have not been such as to recommend it for general adoption either by courts or legislatures. The only instance where this power of increasing the "actual dam- ages" is given by statute is in the patent laws of the United States. But there it is given to the court and not to the jury. The jury must find the "actual damages" incurred by the plaintiff at the time his suit was brought ; and if, in the opinion of the court, the defendant has not acted in good faith, or has been stubbornly litigious, or has caused unnecessary expense and trouble to the plaintiff, the court may increase the amount of the verdict, to the extent of trebling it. But this penalty cannot, and ought not, to be twice inflicted; first, at the discretion of the jury, and again at the discretion of the court. The expenses 3 SECT. IV.] RYERSON V. CHAPMAN. 833 of the defendant over and above taxed costs are usually as great as those of plaintiff; and yet neither court nor jury can compensate him, if the verdict and judojment be in his favor, or amerce the plaintiff pro falso clamorc beyond tax costs. Where such a rule of law exists allowing the jury to find costs de increviento in the shape of counsel-fees, or that equally indefinite and unknown quantity denominated (in the plain- tiff's prayer for instruction) "&c.," they should be permitted to do the same for the defendant where he succeeds in his defence, otherwise the parties are not sufl'ered to contend in an equal field. Besides, in actions of debt, covenant, and assimipsit, where the plaintiff always recovers his actual damages, he can recover but legal costs as compensation for his expenditure in the suit, and as punishment of defendant for his unjust detention of the debt; and it is a moral offence of no higher order, to refuse to pay the price of a patent or the damages for a trespass, which is not wilful or malicious, than to refuse the payment of a just debt. There is no reason, therefore, why the law should give the plaintift" such an advantage over the defendant in one case, and refuse it in the other. See Barnard v. Poor, 21 Pickering, 382; and Lincoln r.The Sara- toga Railroad, 29 Wendell, 435. We are of opinion, therefore, that the instruction given by the court in answer to the prayer of the plaintiff, was correct. The instruction to the jury, also, was clearly proper as respected the measure of the damages, and that the jury had nothing to do with the question whether their verdict would carry costs. The judgment is therefore affirmed. RYERSON V. CHAPMAN. Supreme Judicial Court of Maine, 1877. [Reported 6G Me. 557.] Peters, J. The cA-idence in this case is meagre. Aided by the briefs of counsel, we understand the facts, among other things, to show as follows: The defendant, getting a supposed title to a parcel of land by levy, conveyed the land to the plaintiff by a warrantee deed. The plaintiff had been in an undisturbed occupation of the land under his deed for about fifteen years, when his possession was invaded by one Carleton, who claimed title to the land upon the ground that the lew under which the defendant acquired the land, was defective and void. The pkintiff sued Carleton, and Carleton sued the plaintiff, in actions of trespass, and several other suits followed between them. While all the suits were pending, one of them was carried up to decide the ques- tion of title to the land, and Carleton prevailed, as will be seen in 834 RYERSON v. CIL\PMAN. [CHAP. VI. Carleton v. Ryerson, 59 Maine, 438. After this, the defendant paid to the phiintiff all the costs and counsel fees incurred in the defense of that action, and also paid him the value of the land from which he was evicted, but refused to pay the damages, costs, and expenses ih'^ curred in the other actions. Several actions were brought against the plaintiff, and there were two in his favor. Several questions of law and fact are referred to us and we have, by agreement, jury powers to aid us in deciding them. First: The defendant asserts that there is np evidence that the plaintiff received from the defendant any seizin of the land in law or fact, and that therefore the plaintiff cannot recover, having already received more than the amount of the consideration paid therefor, with interest on the same. But we think the legitimate inference from the evidence is, that a seizin in fact was obtained. The parties have proceeded in the case upon that assumption, and the defendant claims that he has already settled all the damages on that basis. Then, the defendant contends, that it is not shown that the judg- ments recovered against persons of the name of Ryerson, other than the plaintiff, arose out of suits instituted against them as the servants of the plaintiff, or that the suits were defended in vindication of tlif plain- tiff's title to the land, or that the plaintiff had paid the judgments. But we think that these facts, though not clearly stated, are fairly inferable upon an examination of all the evidence in the case. This brings us to the principal question of law in the case, which is, whether the plaintiff is entitled to recover, under the warranty of title, any more of the costs and expenses of litigation paid by him than what grew out of a single suit. The defendant maintains that he can- not recover more, upon the supposition that one litigation was suffi- cient to settle the question of title. It is our judgment that the plaintiff can recover more than the expenses of litigating one suit. This question is pretty well solved by a reference to the nature of the covenant of warranty. The American form (in most deeds) is a brief one, but much more than is expressed therein is technically implied. It is the "sweeping" covenant in this country, and practically includes what is embraced in the covenant for quiet enjoyment generally found in English conveyances. The words of the latter covenant when set forth at length, (some short form is generally used,) are these: " It shall be lawful for the said grantee, his heirs and assigns, from time to time, and all times hereafter, peaceably and quietly to enter upon, have, hold, occupy, possess and enjoy the said lands and premises hereby conveyed or intended so to be, with their, and every of their appurtenances, and to have, receive, and take the rents, issues, and profits thereof, to anfl for his and their use and benefit, without any let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever, of, from or by him, the said grantor, or his heirs, or any person or persons whom- soever." Rawle on Gov. 182. This covers extensive ground. In SECT. I^ .] RYERSON V. CHAPMAN. ■ 835 Howell V. Richards, 11 East. 633, 642, Lord Ellenborough, C. J., says: " The covenant for quiet enjoyment is an assurance against the conse- quences of a defective title, and of any disturbances thereupon. For the purpose of this covenant, and the indemnity it affords, it is im- material in what respects, and by what means, or by whose acts, the eviction of the grantee or his heir takes place; if he be lawfully evicted, the grantor, by such his covenant, stipulates to indemnify him at all events." The covenant of warranty amounts to an agreement of indemnity. The foundation of a claim for damages under it, must be that an evic- tion, or something equivalent thereto, has properly taken place. The covenantee, who has been evicted, is entitled to have repaid to him all reasonable outlay which he in good faith expends for the assertion or defense of the title warranted to him. Weston, C. J., says: (Swett r. Patrick, 12 Maine, 9, 10) "He (covenantee) was justified in making every fair effort to retain the land." If he is assaulted with ever so many suits, he must defend them, unless it is clear that a defense would avail nothing. If he defends but one, and lets the others go by default, he might get himself into inextricable trouble. It is as essential that he should defend all the suits as any one of them. A defender of a walled city might as well plant all his means of defense at a single gate, and leave all the others undefended, to be entered by the enemy. The covenantee becomes the agent of the covenantor, in making a defense against suits. He should do for his warrantor what the warran- tor should do for himself, if in possession. It is no more expensiA'e for the warrantor to defend suits brought against his agent, than suits against himself, and the presmnption is, that he would have been a party to the same litigations, had he remained in possession. But the agent must act cautiously and reasonably. He has no right to " inflame his own account" (11 A. & E. 2S) nor indulge in merely quarrelsome cases. It follows, therefore, that the plaintiff may recover for the damages and costs and expenses of suits brought against him, and also for the costs and expenses of suits brought by him, affecting the title to the estate. Each suit may have been a part of the means by which the title was sought to be defended. The case in 108 Mass. 270, (Merritt v. Morse,) cited by the plaintiff, seems quite identical with this case. We have carefully considered the able argument of the counsel for the defendant, but cannot concur in it.. The cases cited by him upon this point, do not go far enough to sustain his position. The language used in them is appropriate enough to the idea of one suit only being neces- sary to settle a question of title, but in such cases the damages and costs of one suit only were involved. None of them decide, or under- take to decide, the question presented here. The defendant contends that he is not liable for the costs and counsel fees in some of the actions, of the pendency of which he was not notified. But notice was not necessary to put upon him such a liability. Without 836 RYERSON V. CILA.PMAN. [CHAP. VI. a notice, the plaintiff can recover his damages caused by the failure of the title warranted to him. And, in this state, the costs of the former action and the expenses of counsel fees attending it, whether in asserting or defending the title, are a portion of the damages recoverable. The want of notice of a suit to the warrantor, undoubtedly increases the burden of proof that falls on the warrantee. In such case he would be held to prove that the actions brought against hifn were reasonably defended, and that the costs were fairly and necessarily incurred. And as to the costs in cases in which the warrantee was plaintiff instead of defendant, and also as respects counsel fees and expenses in cases where he was either plaintiff or defendant, and whether the covenantor was notified or not, from the nature of things, the burden is on the covenantee to show such items to be reasonable and proper claims, where the grantor does not appear in the suits. The case of Swett v. Patrick, 12 IVIaine, 9, does not decide that such items are not recoverable where no notice was given, but gives the fact of notice as an additional or conclusive reason why they should be included in the damages. We are aware that it is maintained in many cases that a judgment against a Avarrantee is jmina facie evidence of both eviction and the infirmity of the title, even though the warrantor had no notice of the former litigation, in a suit by the warrantee against the warrantor upon the covenants in the deed. But we think the law has never been so regarded in this state. Such judgment "is legally admissible to prove the act of eviction, but not the superior title of the recovering party." Hardy r. Nelson, 27 Maine, 525, 530. If the grantor has notice of the former suit and an opportunity to defend, then, in the absence of fraud or collusion, the judgment in the former suit is con- clusive against him. But we do not think it reasonable that a grantor should be required to prove that a judgment was wTongfully recovered against his grantee, when he had no notice to be heard. Veazie v. Penobscot Railroad, 49 Maine, 119. Thurston r. Spratt, 52 Maine, 202. C'oolidge V. Brigham, 5 Met. 68. Chamberlain v. Preble, 11 Allen, 370. Rawle on Cov. 122 d seq. Smith v. Compton, 3 B. & Ad. 407. The defendant's next point of defense is, that the claims now sued for have been settled by an accord and satisfaction, evidenced by a receipt which is a part of the case. We think this point in the defense fails also. This part of the controversy grows out of a misapprehension of the law by some of the parties concerned, all of whom were acting honorably. The then plaintiff's counsel supposed that what he got from the defendant was all that the plaintiff was legally entitled to re- ceive, writing the receipt accordingly. But we think the learned coun- sel was in error in that respect. The receipt was not apparently given in compromise of any disputed or doubtful claim, but was intended as an admission of the sum received, and of the purpose for which it was received, and to exclude the presumption that it was given for anything else. There was no consideration for a discharge by the SECT. IV.] WESTFIELD V. MAYO. 837 plaintiff of his present claim. The receipt is worded upon the mistaken idea that there was no legal claim. Upon the question of damages, our decision must necessarily be somewhat of an arbitrary character. The case, in some of its aspects, is a blind one. The evidence is uncertain and doubtful upon some points, and lacks completeness. It does not appear whether there was any necessity for, or wisdom in bringing the suit of replevin by the plaintiff, nor whether the suit in which the plaintiff recovered nominal damages concerned this title or not. All the costs look large. There was carelessness and folly somewhere, in carrying on so many suits. The burden is upon the plaintiff. He claims S600 and more, damages. He may have judgment for $400, and interest thereon from the date of writ. WESTFIELD v. MAYO. Supreme Judicial Court of Massachusetts, 1877. [Reported 122 Mass. 100.] Tort to recover the amount of a judgment paid by the plaintiff* to Mary J. Hanchett for injuries sustained by her upon a highway which the plaintiff was l)ound to keep in repair; and also $150, the expenses of the suit in which that judgment was recovered. Hanchett was in- jured by falhng upon loose bricks which the defendant had negligently left in the highway.^ Lord, J. . . . The remaining question in this case is, whether the plain- tiff shall recover- the amount paid as counsel fees in the suit against the towm, which, it is agreed, are reasonable, if in law they are to be allowed. The defendant was notified by the town of the pendency of the original suit, and was requested to defend it, which he declined to do. The difficulty is not in stating the rule of damages, but in deter- mining whether in the particular case the damages claimed are within the rule. Natural and necessary consequences are subjects of dam- ages; remote, uncertain and contingent consequences are not. Whether counsel fees are natural and necessary, or remote and contingent, in the particular case, we think may be determined upon satisfactory principles; and, as a general rule, when a party is called upon to de- fend a suit, founded upon a WTong, for which he is held responsible in law without misfeasance on his part, but because of the "WTongful act of another, against whom he has a remedy over, counsel fees are the natural and reasonably necessary consequence of the wTongful act of the other, if he has notified the other to appear and defend the suit. When, however, the claim against him is upon his o^vn contract, or for his own misfeasance, though he may have a remedy against another I This short statement is substituted for that of the Reporter. — Ed. 838 WESTFIELD V. MAYO. [CHAP. VI. and the damages recoverable may be the same as the amount of the judgment recovered against himself, counsel fees paid in defence of the suit against himself are not recoverable. The decision in Reggio v. Braggiotti, 7 Cush. 166, is adverse to the allowance of counsel fees, as falhng within the latter class. In that case the plaintiff sold to Henshaw, Ward & Co. an article witli a warranty that it Avas kno\\Ti in commerce as opium; and Henshaw, Ward & Co. recovered damages against the plaintiff upon his war- ranty. They, having made the warranty, were responsible for dam- ages resulting from the breach of their owti contract. The defendant in that case had made a similar warranty to the plaintiffs, and although they were liable to him upon that warranty, it was held that they were not liable for counsel fees paid in defending their oAvn warranty. Al- though the reasons for that decision, which are very briefly given, are not the same which we now assign in support of it, the decision itself is sustained by the authorities. In Baxendale v. London, Chatham & Dover Railway, L. R. 10 Ex. 35, it appeared that one Harding had contracted with the plaintiff to convey certain valuable pictures from London to Paris. The plaintiff, by another contract, agreed with the defendant for the carriage by the defenjlant of the same pictures to the same destination. The pic- tures were damaged in the transportation. Harding brought his action against the plaintiff for damage to the pictures upon the contract between them and recovered. The plaintiff then brought his action against the defendant for breach of its contract with him; and the defendant denied its liability, but being held liable, the question arose whether counsel fees which the plaintiff had expended in defence of Harding's claim upon him should be added as damages to the amount recovered by Harding; and it was held that they could not be. In Fisher v. Val de Travers Asphalte Co., 1 C. P. D. 511, the same result was reached. In that case the plaintiff made a contract with a tramway company to construct a tramway in a workmanlike manner with ^'al de Travers asphalte and concrete, and to keep the same in good order for twelve months. The plaintiff also contracted with the defendant to construct for him the same tramway and with like Avar- ranty. The plaintiff, however, did not make the contract with the defendant to construct the tramway for himself, but he had agreed tp construct it for the IVIetropolitan Tramway Company, which was the owner of the tramway. One Hicks sustained an injury by reason of the defective condition of the way, and commenced proceedings against the Metropolitan Tramway Company for damages, and the Metro- politan Tramway Company notified the plaintiff, and the plaintiff notified the defendant. The defendant declined to interfere. The plaintiff, however, took upon himself the defence of the suit against the tramway company, and adjusted it; and the settlement was found to be a reasonable and proper one. In his action against the de- SECT. IV.] WESTFIELD V. MAYO. 839 fendant, he contended that his counsel fees incurred in the previous proceedings should be added to the amount paid to Hicks. Brett and Lindley, JJ., in their several opinions, felt themselves bound by the decision in Baxendale v. London, Chatham & Dover Railway, above cited, but thought that, if they were not precluded by that decision, they should have great difficulty in refusing to allow counsel fees in addition to the amount paid as damages; but Lord Coleridge, C. J., while holding that that decision was conclusive, was not prepared to say that it was not right in principle. And he uses this very suggestive language: "The tramway company contract with Fisher; Fisher con- tracts with the defendants, and the claim of Hicks arises from negli- gence of the latter. Are the defendants to be liable to three sets of costs, because the actions may have been reasonably defended? If they are, the consequences may be serious. If not, at which link of the chain are the costs to drop out?" Followang this suggestion, if, in the case of Reggio v. Braggiotti, there had been ten successive sales instead of two, and each wath the same implied warranty, and successive suits had been brought by the ten successive purchasers, each against his warrantor, would the first seller be liable for such accumulation of counsel fees upon his contract of warranty? If not, in the pertinent language just quoted, " at which link of the chain are the costs to drop out?" In each of these cases, it will be observed that the counsel fees were paid in defending a suit upon the party's own contract. In the present case, the plaintiff was not compelled to incur the counsel fees by reason of any misfeasance, or of any contract of its own, but was made immediately liable by reason of the wrongdoing of the defendant. There seems therefore to be no ground, in principle, by which it should be precluded from recovering as a part of its dam- ages the expenses reasonably and properly incurred in consequence of the WTongdoing of the defendant. Within this rule a master, who is immediately responsible for the WTongful acts of a servant, though there is no misfeasance on his part, might recover against such servant not only the amount of the judgment recovered against him, but his reasonable expenses including counsel fees, if notified to defend the suit. It may be said in that case, as in this, that there may be a technical misfeasance, or rather nonfeasance, in not guarding more carefully the conduct of the servant, or in watching for obstructions in the street; but no negligence is necessary to be proved in either case as matter of fact; the party is directly liable because of the WTong of another, whatever diligence he may have himself exercised. It does not, however, apply to cases where one is defending his own WTong or his own contract, although another may be responsible to him. In Lowell v. Boston & Lowell Railroad, 23 Pick. 24, the question was raised whether the defendant was liable over to the plaintiff" for dam- ages which had been recovered against the plaintiff by reason of a 840 ^ WESTFIELD V. MAYO. [CHAP. VI. defective highway, which defect was caused by the defendant. That is the leading case in this Commonwealth, in which it is settled that the municipal corporation which is bound by law to keep its roads safe and convenient is not in pari delicto with the party by whose direct act the defect exists. That decision is based upon the principle that the keeping of roads safe and convenient is a corporate obligation imposed by law; and although it does not in words declare that it is immaterial whether there was negligence in fact, the existence of the defect during the statute time is recognized as, of itself, conclusively establishing the legal liability of the municipality. In that case, the question was directly raised whether the costs of suit, including the reasonable counsel fees, were recoverable. In the discussion by Mr. Justice Wilde, who delivered the opinion, no distinction was made between taxable costs and reasonable counsel fees. It was decided that neither taxable costs nor counsel fees could be recovered. We think, however, that the whole course of reasoning is in conformity with the views which we adopt. At the time the cause of action ac- crued (1832) and when the judgment was entered (1839) if damages were recovered for injury sustained because of a defect in a way, which had existed for the space of twenty-four hours, and after the town had had reasonable notice of the defect, it was the duty of the court to enter judgment against the defendant for double the amount of the sum returned as damages by the jury. St. 1786, c. 81, § 7; Rev. Sts. c. 25, § 22. The court says in the opinion, "The ground of defence taken by the town in the former action is well remembered, although it does not appear in the present report." That defence is thus stated : " The ground of defence in that action on the part of the town was, that they had no sufficient notice of the defect in the road, and that the remedy for the injured party was against the present defendants. The suit therefore was not defended at the request of the defendants or for their benefit; at least, no such request has been proved." And the court adds: "If the claim of the injured parties had been made on the defendants, or if they had had notice that the town defended the suit against them in behalf of the defendants, they might have compromised the claim." The exact point of the decision in this respect was that the town was defending, to a great extent, against its own obligation, for which the defendants were not respon- sible either to them or to the injured party. It was the special particu- lar legal obligation of the defendants themselves, which they defended against, and not simply the act of the defendants. The language of the court immediately preceding the question of liability for costs is: " They are not, however, entitled to a full indemnity, but only to the extent of single damages. To this extent only, were the defendants liable to the parties injured, and so far as the plaintiffs have been held beyond that extent, they have suiTered from their own neglect; and whether it was actual or constructive is immaterial. The damages SECT. Y.] BERXHARD T. ROCHESTER GEKMAN INSURANCE CO. 841 were doubled by reason of the neglect of the town ; and although there was, in fact, no actual negligence, yet constructive negligence was >suflficient to maintain the action against them; and they must be re- sponsible for the increased amount of damages, and cannot throw the burden on the defendants." Throughout the whole reasoning of that case, we think the principle which we adopt, though not stated in terms, is clearly recognized. It is simply this : If a party is obliged to defend against the act of another, against whom he has a remedy over, and defends solely and exclusively the act of such other party, and is compelled to defend no misfeasance of his owTi, he may notify such party of the pendency of the suit and may call upon him to defend it; if he fails to defend, then, if liable over, he is liable not only for the amount of damages recovered, but for all reasonable and necessary expenses incurred in such defence. And this rule, while consistent with legal principles, is sanctioned by the highest equitable considerations. If the party ultimately liable for his exclusive WTongdoing has notice that an intermediate party is sued for the wrong done by him, it is right, legallj' and equitably, that he take upon himself at once the defence of his own act, thereby set- tling the whole matter in a single suit; if he requires the intermediate party to defend, there is no rule of law or of morals which should re- lieve him from the consequences of his additional neglect of duty. Upon the whole, therefore, we are entirely satisfied that the exceptions must be overruled and judgment entered for the plaintiff for the larger sum, which includes what, it is agreed, are reasonable counsel fees. Exceptions overruled. SECTION V. Interest. BERNHARD v. ROCHESTER GERMAN INSURANCE CO. Supreme Court of Connecticut, 1906. [Reported 79 Conn. 388.] Prentice, J. The defendant issued its policies to the plaintiff upon his dwelling-house and its contents. A fire occurred. The insured is now seeking to recover upon the policies on account of the loss thereby occasioned.^ . . . In rendering judgment the court inckided interest from July 1st, 1901 , being the date of the defendant's repudiation of liability, upon the amount of the loss upon the personal property, but none upon the 1 The learned judge held that the court below was right in giving judgment for the plaintiff. — Ed. 842 BERNHARD 1}. ROCHESTER GERMAN INSURANCE CO. [CHAP. VI. amount of the building loss. The defendant complains of the inclusion of this interest. The court made its distinction between the two losses, upon the ground that the latter loss was not definitely ascertainable until it was determined by the judgment of the court, while there was no serious controversy between the parties as to the amount of the former. There was no error in the action of the court; neither would there have been had interest upon the other loss been included. By the f inclusion of interest upon the amounts which the policies obligated the defendant to pay, from the time when it refused recognition of any liability and put an end to the prescribed processes of adjustment, and by such inclusion only, could the court compensate the plaintiff for what he had suffered by reason of the delay resulting from the defend- ant's wrongful act. "Interest by our law is allowed on the groiind of some contract express or implied to pay it, or as damage for the breach of some contract, or the violation of some duty." Selleck v. French, 1 Conn. 32, 33. This court has never adopted for general application the arbitrary rule that interest upon unliquidated demands will not be allowed as damages. On the contrary, we have long and repeatedly held that in certain classes of cases such an element of damage was one to be properly taken into account. White v. Webb, 15 Conn. 302, 305; Clark V. Whitaker, 19 id. 319; Cook v. Loomis, 26 id. 483; Oviatt v. Pond, 29 id. 479, 485; Clark v. Clark, 46 id. 586, 590; Union Hardware Co. V. Plume & Atwood Mfg. Co., 58 id. 219, 222, 20 Atl. 455; Regan v. New York & N. E. R. Co., 60 Conn. 124, 142, 22 Atl. 503; Healy v. Fallon, 69 Conn. 228, 235, 37 Atl. 495; New York, N. H. & H. R. Co. V. Ansonia L. & W. P. Co., 72 Conn. 703, 705, 46 Atl. 157. The purpose sought in awarding damages other than vindictive is to make a fair compensation to one who has suffered an injury. Barker v. Lewis Storage & Transfer Co., 78 Conn. 198, 200, 61 Atl. 363. Courts are more and more coming to recognize that a rule forbidding an allow- ance for interest upon unliquidated damages is one well calculated to defeat that purpose in many cases, and that no right reason exists for drawing an arbitrary distinction between liquidated and unliquidated damages. 1 Sedg. on Damages (8th ed.), §§ 299, 300, 312, 315. There are actions to which the suggested rule is applicable. Regan v. New York & N. E. R. Co., 60 Conn. 124, 142, 22 Atl. 503. Others, however, present conditions where, without an allowance for interest, although the demand may be unliquidated, fair compensation for the injury done would not be accorded and justice would thus be denied. The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than tlirough the application of any arbitrary rule. New York, N. H. & H. R. Co. V. Ansonia L. & W. P. Co., 72 Conn. 703, 705, 46 Atl. 157. There is no error. SECT, v.] SLOAN V. BAIRD. 843 SLOAN V. BAIRD. Court of Appeals, New York, 1906. [Reported 162 A^". Y. 327.] Haight, J. The defendant was the owner of certain lands, buildings and machinery at Trenton, New Jersey, known as the plant of the Hamilton Rubber Company. She entered into a certain contract with the plaintiff by which she agreed to sell and convey the pro'^erty to him within a time specified for the sum of fifty thousand dollars ($50,000). At the time specified the plaintiff tendered performance, but the defendant refused to convey the property to him; but instead, conveyed it to one Skrim. This action was brought to recover the damages which the plaintiff sustained by reason of the defendant's refusal to perform her contract. The case was tried before a referee, who awarded the plaintiff fifteen thousand five hundred dollars ($15,500) damages, with interest thereon from the date of the breach of the agreement. The Appellate Division modified the judgment by deducting from the damages awarded by the referee the sum of two thousand eight hundred fift;\'-three dollars and fifty-four cents ($2,853.54) as interest, and also by deducting the sum of one hundred forty-two dollars and sixty-eight cents ($142.68) from the amount awarded as extra allowance in addition to costs, and as so modified the judgment was unanimously affirmed. We have examined the exceptions raised by the defendant's appeal and are of the opinion that the questions involved were properly dis- posed of by the Appellate Division. The only question which we shall here discuss arises upon the plaintiff's appeal, in which he claims that the Appellate Division improperly modified the judgment by deduct- ing from the sum awarded the interest from the time of the breach of the contract. It is true that much has been wT-itten upon the subject of awarding interest, and that the authorities are not in entire harmony. But we must regard the question here under consideration as settled by our recent decision in the case of Gray v. Central R. R. Co. of N. J. (157 N. Y. 483). In that case the rule adopted by Earl, J., in White v. Miller (78 N. Y. 393) and by Bradley, J., in Mansfield v. N. Y. C. & H. R. R. R. Co. (114 N. Y. 331) was approved and followed. The rule as stated in these cases is to the effect that in an action to recover unliquidated damages for a breach of a contract, interest is not allow- able unless there is an established market value of the property, or means accessible to the party sought to be charged of ascertaining by computation, or otherwise, the amount to which the plaintiff is en- titled. (See also, MacMaster v. State, 108 N. Y. 542.) The damages 844 COCHRAN V. BOSTON. [CHAP. VI. in this case were the difference between the amount which the plaintiff agreed to pay and the vahie of the property. The property consisted of a parcel of land upon which there were buildings inclosing a quantity of machinery used in the manufacture of rubber. The factory had been operated for a number of years, but at the time of the contract it stood idle and unused. The property was of a special kind fitted for a peculiar business, and its value depended largely upon its location, condition and the demand for the goods which it was designed to manufacture. It appears that the machinery constituted the chief value of the property, and its long use, of necessity, produced a de- terioration and impaired its value. The expert witnesses called upon the question of the value of the property widely differed in their judg- ments. With reference to the machinery their estimates ranged from five thousand dollars to forty-eight thousand dollars, and upon the whole property from thirty-five thousand dollars to one hundred thousand dollars. It is thus apparent that the damages sought to be recovered were not only unliquidated, but that no means were accessible to the defendant of ascertaining the amount M'hich might be awarded by a jury and she called upon to pay. But it is said there was a market value. If so, what was it? Was it thirty-five thousand dollars or one hundred thousand dollars? The market value of property is established when other property of the same kind has been the subject of purchase or sale to so great an extent and in so many instances that the value becomes fixed. Bouvier, in his Law Dictionary, defines market value as a price established by public sales, or sales in the way of ordinary business, as of merchandise. The Century Dictionar\, defines market price as being the current price. (See also, Murry v. Stanton, 99 Mass. 345, 348.) While evidence was given by experts showing the value of the property, there is no evidence showang that this property had a market value established and fixed by which the defendant could determine the damages which the plaintiff was en- titled to recover or compute the interest thereon, and there is no find- ing by the referee that the property had a market value. The judgment should be affirmed, without costs to either party. COCHRAN V. BOSTON. Supreme Judicial Court of Massachusetts, 1912. [Reported 211 Mass. 171.] RuGG, C. J. This is an action for personal injuries received by the plaintiff while a traveller from a defect in a higliAvay. The only question to be decided is whether in such an action the plaintiff is entitled to an instruction to the effect that in ascertaining damages the jury have a SECT, v.] COCHRAN V. BOSTON. 845 right to add to the fair compensation interest by reason of delay. The plaintiff relies on Frazer r. Bigelow Carpet Co., 141 Mass. 126, where it was held that in an action for injury to property the jury, in their discretion, and as incident to determining the amount of the original loss, may consider the delay caused by the defendant. This case has been followed in other cases of tortious injury to property. Ainsworth V. Lakin, 180 Mass. 397. Atwood v. Boston Forwarding & Transfer Co., 185 Mass. 557. Peabody v. New York, New Haven, & Hartford Railroad, 187 Mass. 489, 493. The rule in substance adopted in these cases is that, while interest is not allowed as matter of right, the time for which the plaintiff has been kept' out of the use of his property or the damage occasioned by the wrong of the defendant may be con- sidered and an amount not exceeding the legal rate of interest may be included therefor in the verdict if necessary in order to give adequate compensation. This principle is applicable to cases where there has been a definite injiu-y to specific property. The reason is that stated by Chief Justice Shaw, in Parks v. Boston, 15 Pick. 198, in laying doAVTi the rule for the computation of interest where property is taken by eminent domain. The injury occurs and is finished in its results on a particular daj', and can then best be ascertained, and exact justice would be done by a contemporaneous determination of the loss. An action for personal injuries is essentially different in its nature. The damages are not complete and ended on the day of the accident, but continue for a greater or less period thereafter. The extent and magnitude of the injury are not infrequently un- appreciated and incapable of reasonable ascertainment on the day it is received. Its degree of permanence is often deceptive at the first, and commonly the determination of conditions requisite for recovery is materially assisted by the perspective of time. The most helpful aids in learning the nature and degree of actual injury may be events occurring after the event complained of. There is no fixed standard by which the compensation to be awarded can be measured. Its general rules have been stated many times. The sum of money fixed upon must be such as fairly compensates the injured person for the loss of time, the physical pain and the mental suffering, both that undergone in the past and likely to occur in the future, and also money reasonably expended and to be expended in assuaging pain and in restoration to health. Elements that are past and also those which are to come must be considered. Most of them are not capable of mathematical computation. They can be settled only by the sound judgment and conscience of the tribunal by which they are assessed, and they are peculiarly within its province. The damages are to be determined, moreover, as of the day of the trial. It is apparent that interest or considerations akin to interest have no place in an inquiry of this sort. Interest is compensation for the use of money which is due. But the money which the wrongdoer is required by law to pay 846 EATON V. BOISSONNAULT. [CHAP. VI, for the future suffering, expense or loss of time of one whom he has in- jured is not due until judgment is made up. It is not a debt and does not become a definite obligation until a verdict or finding has been finally entered. It is composed of divers elements, together making up a gross sima, many of which may not have sprung into being on the day when the tort was committed, although directly traceable to it as a cause. If interest were properly chargeable on that which has al- ready accrued, discount should be allowed upon that which relates to the future. Such a method of computing damages would be wholly impracticable. The amount of damages recoverable in actions of this sort, as well as those under certain branches of the employers' liability act and under penal statutes for causing death, is limited to definite amounts. Plainly no interest can be allowed in instances of maximum injury. It has been the practice in this Commonwealth not to extend the rule of Frazer v. Bigelow Carpet Co., supra, to cases of this sort. Al- though the custom has been firmly established and continuous not to allow enhancement of damages by reason of delay, and pei"sonal injury actions have been very numerous for many years, the question has never been presented before for consideration. The groiuids against such an extension of allowance of interest appear conclusive. This view is supported by the great weight of authority in other jurisdic- tions. Railroad v. Wallace, 91 Tenn. 35. Burrows v. Lownsdale, 133 Fed. Rep. 250. Jacobson v. United States Gypsum Co., 150 Iowa, 330, 339. Arkansas & Louisiana Railroad v. Stroude, 82 Ark. 117, 127. Fell X. Union Pacific Railway, 32 Utah, 101, 111. Ratteree v. Chap- man, 79 Ga. 574, 581. Sargent x. Hampden, 38 Maine, 581. Western & Atlantic Railroad v. Young, 81 Ga. 397. Missouri & Kansas Tele- phone Co. V. Vandervort, 71 Kans. 101. Pittsburg Southern Railway V. Taylor, 104 Penn. St. 306. Texas & New Orleans Railroad v. Carr, 91 Texas, 332. Bommarius i\ New Orleans Railway & Light Co., 123 La. 615. See also Tilglmian v. Proctor, 125 U. S. 136, 161; Shafer Fruit & Cold Storage Co. v. Upton Cold Storage Co., 133 App. Div. (N. Y.) 796. Exceptions overruled. EATON V. BOISSONNAULT. Supreme Judicial Court of Maine, 1877. [Reported 67 Me. 540.] Walton, J. The question is what rate of interest shall be allowed on notes after they have matured. When it is expressly stated in a note that if it is not paid at maturity, it shall thereafter bear interest at a rate named, the rate named is SECT, v.] EATON V. BOISSONNAULT. 847 recoverable, although it is much larger than the usual or statutory rate. So held in Capen v. Crowell, 6G Maine, 282. When a note is made payable at a future day, with interest at the rate of three per cent per annum, and nothing is said therein about the rate of interest which it shall draw thereafter, if not paid at matu- rity, it will draw the interest named till maturity, and after that the usual or statutory rate. So held in Ludwick v. Huntzinger, 5 Watts & Serg. 51. A note payable at a future day, with interest at two per cent a month, in which nothing is said about the rate of interest after maturity', will draw that rate of interest till the note matures, and after that only the usual or statutory rate. So held in Brewster v. Wakefield, 22 Howard, 118, and in Burnhisel v. Firman, 22 Wall. 170. The same rule was acted upon in the House of Lords in England in a recent case. Cook v. Fowler, L. R. 7 H. L. 27. The reason given by Lord Selborne, in the case last cited, is that interest for the delay of pa^Tnent, 2)ost diem, is not given on the principle of implied contract, but as damages for a breach of contract; that while it might be reasonable, under some circumstances, and the debtor might be very willing to pay five per cent per month for a very short time, it would by no means follow that it would be reasonable, or that the debtor would be willing to pay, at the same i*ate, if, for some unfore- seen cause, pa^Tnent of the note should be delayed a considerable length of time. Similar views were expressed by Chief Justice Taney, in Brewster v. Wakefield, 22 Howard, 118. He says that when the note is entirely silent as to the rate of interest thereafter, if it is not paid at maturity, the creditor is entitled to interest after that time by operation of law and not by virtue of any promise which the debtor has made; that if the right to interest depended upon the contract, the holder would be entitled to no interest whatever after the day of pavTnent. In a recent case in Massachusetts, the court held that when a re- covery is had upon a note bearing ten per cent interest, the plaintiff is entitled to interest at the same rate till the time of verdict. Brannon 1). Hursell, 112 Mass. 63. The reason given is that "the plaintiff recovers interest, both before and after the note matures, by virtue of the contract, as an incident or part of the debt, and is entitled to the rate fixed by the contract." This reasoning is at variance with the reasoning in the House of Lords in the case cited ; and with the reasoning of the Supreme Court of the United States, in the cases cited ; and with the reasoning of the Massachusetts court itself, in Ayer v. Tilden, 15 Gray, 178. It is there said that the interest after maturity "is not a sum due by the contract ; that it is given as damages for the breach of the contract, and must follow the rule in force within the jurisdiction where judgment is recovered." We think the rule laid down by the Supreme Court of the United 848 BOWMAN V, NEELY. [CIL\P. VI. States, and by the House of Lords in England, is the correct one. It has been followed in Connecticut. Hubbard v. Callahan, 42 Conn. 524. And in Rhode Island. Pierce v. Swanpoint Cemetery, 10 R. I. 227. In the last case the court say that if the parties to the note or other contract for the payment of money, intend that it shall carry the stipulated rate of interest till paid, they can easily entitle themselves to it, by saying so, in so many words. The practice in this state has been in accordance with the rule laid down by the Supreme Court of the United States, in Brewster v. Wakefield, 22 Howard, 118; and we see no reason for departing from it. Exceptions overruled. BOWMAN V. NEELY. Supreme Court of Illinois, 1894. [Reported 151 III. 37.] Baker, J. It appears that appellee's judgment for S4,748.52 against appellant included the principal of the note for $3,481.31, less the proper deductions for the several payments, as of their respective dates, and interest calculated at the rate of ten percentum per annum, simple interest. The note provided, that interest should be paid on the principal at the rate of ten per cent per anntun from date, and that it should be payable annually, and if not so paid, should become principal, and bear the same rate of interest as the original principal. Appellant contends that this provision in the note rendered the con- tract usurious, and that it was error to allow appellee any interest whatever, that the judgment should have been only for the principal of the note, less the amounts of the several payments endorsed thereon. In our opinion, the case at bar does not come within the purview of Sec. 6, Ch. 74, of Rev. St. of 1874. The decisions of this court bearing on this question may be divided into two general classes: First, where a greater rate of interest is sought to be recovered than is allowed by law. This is usury, and, in such a case, the statute pro- vides that the creditor shall forfeit his interest, and shall recover only the principal of the debt. And second, where interest upon interest, or compound interest, is sought to be recovered; in that case, if no more than the legal rate of interest is charged, there is no usury, within the meaning of our statute. From motives of public policy, however, the law will not allow the recovery of compound interest. There are but two exceptions to this latter rule: First, in respect to interest-bearing coupons attached to bonds or other securities for the payment of money. Such coupons, when payable to bearer, have, by commercial usage, the legal effect of promissory notes, and possess the SECT, v.] AUROIL\ CITY V. WEST. 849 attributes of negotiable paper. They are contracts for the payment of a definite sum of money on a day named, and pass, by commercial usage, as negotiable paper. The interest on such bonds, however, is not compounded indefinitely, but is compounded once only. These are the reasons why they are excepted from the operation of the gen- eral rule. The second exception is in cases where, the interest having become due and remaining unpaid, the debtor then agrees to ha^■e the accrued interest added to the principal and become interest-bearing. Leonard r. Villars, 2.3 111. 377; Haworth v. Huling, 87 id. 23; Thayer v. Mining Company, 10.5 id. 553; Bank v. Davis et al., 108 id. 633; Gil- more V. Bissell, 124 id. 488; Bowman v. Neely, 137 id. 443. The case at bar, however, does not come within either of these ex- ceptions to the general rule. Here, the payment of the interest was not secured by a separate and independent instrument, as in the case of coupons attached to bonds, but the payment of the principal and interest were secured by one and the same paper ; and the payment of compound interest was here agreed upon in advance, and not after the interest had accrued. Appellee was entitled to recover the principal of the note here in contro\ersy, he making proper deductions for all payments made, together with simple interest from the date thereof, at the rate of ten per cent per annum, the rate contracted for in the note, that being lawful interest at the time the instrument was executed. We find no error in the record. The judgment is affirmed. Judgment affirmed. AURORA CITY v. WEST. Supreme Court of the United States, 1868. [Reported 7 Wall. 82.] Action upon certain unpaid coupons on bonds issued by the de- fendant city.^ Clifford, J. . . . Exceptions were taken to the ruling of the court in allowing interest upon the coupons, and the bill of exceptions states that the exception of the defendants was allowed, but it does not state what amount of interest was included in the judgment, nor give the basis on which it was computed. Judging from the amount of the sum foynd due, it is, perhaps, a necessary inference that interest was allowed on each coupon from the time it fell due to the date of the judgment, and if so, the finding was correct. Bonds and coupons like these, by universal usage and consent, have all the qualities of commercial paper. Coupons are written contracts for the payment of a definite sum of money, on a given day, ' This short statement is substituted for that of the Reporter. — Ed. SECTION VI. Liquidated Damages. KEMBLE V. FARREN. Court of Common Pleas, 1829. [Reported 6 Bing. 141.] TiXDAL, C. J.^ This is a rule which calls upon the defendant to show cause why the verdict, which has been entered for the plaintiff for £750, should not be increased to £1000. The action was brought upon an agreement made between the plaintiff and the defendant, whereby the defendant agreed to act as a principal comedian at the Theatre Royal, Covent Garden, during the four then next seasons, commencing October, 1828, and also to con- form in all things to the usual regulations of the said Theatre Royal, Covent Garden; and the plaintiff agreed to pay the defendant £3 6s. 8d. every night on which the theatre should be open for theatrical per- formances, during the next four seasons, and that the defendant should be allowed one benefit night during each season, on certain terms therein specified. And the agreement contained a clause, that if either of the parties should neglect or refuse to fulfil the said agree 1 The opinion only is given: it sufficiently states the case. w 850 KEMBLE V. FARREN. [CHAP. VI.( and being drawTi and executed in a form and mode for the very pur- * pose that they may be separated from the bonds, it is held that they ^^ are negotiable, and that a suit may be maintained on them without In the necessity of producing the bonds to which they were attached. Interest, as a general rule, is due on a debt from the time that pay- ment is unjustly refused, but a demand is not necessary on a bill or m note payable on a given day. Being wTitten contracts for the pay- ment of money, and negotiable because payable to bearer and passing from hand to hand, as other negotiable instruments, it is quite apparent on general principles that they should draw interest after payment of the principal is unjustly neglected or refused. Where there is a con- tract to pay money on a day fixed, and the contract is broken, interest, as a general rule, is allowed, and that rule is universal in respect to bills and notes payable on time. Governed by that rule this court in the case of Gelpcke v. Dubuque, held that the plaintiff, in a case en- tirely analogous, was entitled to recover interest. Necessity for remark upon the other exceptions is superseded by what has already been said in respect to the plaintiff's demurrer. Judgment affirmed, with costs. SECT. VI.] KEMBLE V. FARREN. 851 ment, or any part thereof, or any stipulation therein contained, such party should pay to the other the sum of £1000, to which sum it was thereby agreed that the damages sustained by any such omission, neglect, or refusal, should amount; and which sum was thereby de- clared by the said parties to be liquidated and ascertained damages, and not a penalty or penal sum, or in the nature thereof. The breach alleged in the declaration was, that the defendant re- fused to act during the second seasOn, for which breach, the jury, upon the trial, assessed the damages at £750, which damages the plaintiff contends ought by the terms of the agreement to have been assessed at £1000. It is, undoubtedly, difficult to suppose any words more precise or explicit than those used in the agreement; the same declaring not only affirmatively that the sum of £1000 should be taken as liquidated damages, but negatively also that it should not be considered as a penalty, or in the nature thereof. And if the clause had been limited to breaches which were of an uncertain nature and amount, we should have thought it would have had the effect of ascertaining the damages upon any such breach at £1000. For we see nothing illegal or unrea- sonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree. In many cases, such an agreement fixes that which is almost impossible to be accurately ascertained; and in all cases, it saves the expense and difficulty of bringing witnesses to that point. But in the present case, the clause is not so confined; it extends to the breach of any stipulation by either party. If, therefore, on the one hand, the plaintiff had neglected to make a single pa;>Tnent of £3 6s. 8d. per day, or on the other hand, the defendant had refused to conform to any usual regulation of the theatre, however minute or unimportant, it must have been contended that the clause in question, in either case, would have given the stipulated damages of £1000. But that a very large sum should become immediately payable, in consequence of the nonpa^Tuent of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction in terms; the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, en- deavored to relieve, by directing juries to assess the real damages sus- tained by the breach of the agreement. It has been argued at the bar, that the liquidated darpages apply to those breaches of the agreement only which are in their nature uncertain, leaving those which are cer- tain to a distinct remedy, by the verdict of a jury. But we can onl}^ say, if such is the intention of the parties, they have not expressed it; but have made the clause relate, by express and positive terms, to all breaches of every kind. We cannot, therefore, distinguish this case, in principle, from that of Astley v. Weldon, in which it was stipulated, that either of the parties neglecting to perform the agreement should 852 SMITH V. BERGENGREN. [CHAP, VI. pay to the other of them the full sum of £200, to he recovered in his Majesty's Courts at Westminster. Here there was a distinct agree- ment, that the sum stipulated should be liquidated and ascertained damages; there were clauses in the agreement, some sounding in un- certain damages, oth'^rs relating to certain pecuniary payments; the action was brought fO' . the breach of a clause of an uncertain nature; and yet it was held by the court, that for this very reason it would be^ al)surd to construe the sum inserted in the agreement as liquidated damages, and it was held to be a penal sum only. As this case appears to us to be decided on a clear and intelligil)le principle, and to apply to that under consideration, we think it right to adhere to it, and this makes it unnecessary to consider the subsequent cases, which do not in any way break in upon it. The consequence is, we think the pres- ent verdict should stand, and the rule for increasing the damages be discharged. to^ Rule discharged. SMITH V. BERGENGREN. Supreme Judicial Court of Massachusetts, 1891. [Reported 153 Mass. 236.] Holmes, J. The defendant covenanted never to practice his pro- fession in Gloucester so long as the plaintiff should l)e in practice there, provided, however, that he should have the right to do so at any time after five years, by paying the plaintiff two thousand dollars, "but not otherwise." This sum of two thousand dollars was not liquidated damages, still less was it a penalty. It was not a sum to be paid in case the defendant broke his contract, and did what he had agreed not to do. It was a price fixed for what the contract permitted him to do if he paid. The defendant expressly covenanted not to return to practice in Gloucester unless he paid this price. It would be against common sense to say that he could avoid the effect of thus having named the sum b}^ simph^ returning to practice without paying, and could escape for a less sum if the jury thought the damage done the plaintiff by his competition was less than two thousand dollars. The express covenant imported the further agreement, that if the defendant did return to practice he would pay the price. No technical words are necessary if the intent is fairly to be gathered from the instrument. See Pearson v. Williams, 24 Wend. 244, and 2G Wend. 630; Stevinson's Case, 1 Leon. 324; St. Albans v. Ellis, 16 East, 352; Deverill v. Burnell, L. R. 8 C. P. 475; National Provincial Bank of England v. Marshall, 40 Ch. D. 112. If the sum had been fixed as liquidated damages, the defendant would have been bound to pay it. Cushing v. Drew, 97 JVIass. 445. SECT. VI.] CLIDEBAXK ENGINEERING ETC. CO. I'. YZQIERDO. 853 Lynde r. Thompson, 2 Allen, 456. Holbrook v. Tobey, 66 Maine, 410. But this case falls within the language of Lord Mansfield in Lowe v. Peers, 4 Burr. 2225, 2229, that if there is a covenant not to plough with a penalty in a lease, a court of equity will relieve against the penalty, " but if it is worded ' to pay £5 an acre for every acre ploughed up,' there is no alternative, no room for any relief against it, no com- pensation; it is the substance of the agreement." See also Ropes v. Upton, 125 Mass. 258, 260. The ruling exceptec ro did the defendant no wrong. In the opinion of a majority of the court, the exceptions must be overruled. Exceptions overruled. CLYDEBANK ENGINEERING AND SHIPBUILDING COMPANY V. YZQIERDO. House of Lords, Scotch, 1904. [Reported [1905] A. C. 6.] The Spanish Government, represented by the respondents, sought to recover from the appellants the penalties alleged to have been in- curred by the appellants under a contract dated June 4, 1896, for the construction of two torpedo-boat destroyers, afterwards named Audaz and Osado, and the penalties alleged to have been incurred by the appellants under another contract dated November 24, 1896, for the construction of two torpedo-boat destroyers, afterwards named Pluton and Proserpina. Earl of Halsbury, L. C. My Lords, this is a case in which a party to an agreement has admittedly broken it, and an action was brought for the purpose of enforcing the payment of a sum of money which, by the agreement between the parties, was fixed as that which the de- fenders were t0| pay in the event that has happened. Two objections have been made to the enforcement of that payment. The first objection is one which appears upon the face of the instru- ment itself, namely, that it is a penalty, and not, therefore, recoverable as a pactional arrangement of the amount of damages resulting from the breach of contract. It cannot, I think, be denied — indeed, I think it has been frankly admitted by the learned counsel — that not much reliance can be placed upon the mere use of certain words. Both in England and in Scotland it has been pointed out that the Court must proceed according to what is the real nature of the transaction, and that the mere use of the word "penalty" on the one side, or "damages" on the other, would not be conclusive as to the rights of. the parties. It is, I think, not denied now that the law is the same both in England and in Scotland. The different form of its administra- 7V 854 CLYDEBANK ENGINEERING ETC. CO. V. YZQIERDO. [CHAP. VI. tion gave rise doubtless to the Act of William III. (8 & 9 Will. 3, c. 11), § 8, which, of course, is that upon which English lawyers rely when this question occurs; but that difference only arises from a difference in the mode of administering in this country the two branches of jurisprudence which we call law and equity, while the Scotch judges had full jurisdiction in each of the Courts to administer justice, and in administering justice to administer it according to both branches of jurisprudence. We come then to the question, What is the agreement here? and whether this sum of money is one which can be recovered as an agreed sum as damages, or whether, as has been contended, it is simply a penalty to be held over the other party in terrorem — whether it is, what I think gave the jurisdiction to the Courts in both countries to interfere at all in an agreement between the parties, unconscion- able and extravagant, and one which no Court ought to allow to be enforced. My Lords, it is impossible to lay dowTi any abstract rule as to what it may or it may not be extravagant or unconscionable to insist upon without reference to the particular facts and circiunstances which are established in the individual case. I suppose it would be possible in the most ordinary case, where people know what is the thing to be done and what is agreed to be paid, to say whether the amomit was unconscionable or not. For instance, if you agreed to build a house in a year, and agreed that if you did not build the house for £50, you were to pay a million of money as a penalty, the extravagance of that would be at once apparent. Betw^een such an extreme case as I have supposed and other cases, a great deal must depend upon the nature of the transaction — the thing to be done, the loss likely to accrue to the person who is endeavouring to enforce the performance of the con- tract, and so forth. It is not necessary to enter into a minute dis- quisition upon that subject, because the thing speaks for itself. But, on the other hand, it is quite certain, and an established principle in both countries, that the parties may agree beforehand to say, "Such and such a sum shall be damages if I break my agreement." The very reason why the parties do in fact agree to such a stipulation is that sometimes, although undoubtedly there is damage and undoubt- edly damages ought to be recovered, the nature of the damage is such that proof of it is extremely complex, difficult, and expensive. If I wanted an example of what might or might not be said and done in controversies upon damages, unless the parties had agreed before- hand, I could not have a better example than that which the learned counsel has been entertaining us with for the last half-hour in respect of the damage resulting to the Spanish Government by the withhold- ing of these vessels beyond the stipulated period. Supposing there was no such bargain, and supposing the Spanish Government had to prove damages in the ordinary way without insisting upon the stipu- SECT. VI.] CLYDEBANK ENGINEERING ETC. CO. V. YZQIERDO. 855 lated amount of them, just imagine what would have to be the cross- examination of every person connected with the Spanish Administra- tion such as is suggested by the commentaries of the learned counsel: "You have so many thousand miles of coast-line to defend by your torpedo-boat destroyers; what would four torpedo-boat destroyers do for that purpose? How could you say you are damaged by their non- delivery? How many filibustering expeditions could you have stopped by the use of four torpedo-boat destroyers?" My Lords, I need not pursue that topic. It is obvious on the face of it that the very thing intended to be provided against by this pac- tional amount of damages is to avoid that kind of minute and some- what difficult and complex system of examination which would be necessary if you were to attempt to prove the damage. As I pointed out to the learned counsel during the course of his argument, in order to do that properly and to have any real effect upon any tribunal determining that question, one ought to have before one's mind the whole administration of the Spanish Navy — how they were going to use their torpedo-boat destroyers in one place rather than another, and what would be the relative speed of all the boats they possessed in relation to those which they were getting by this agreement. It would be absolutely idle and impossible to enter into a question of that sort unless you had some kind of agreement between the parties as to what was the real measure of damages which ought to be applied. Then the other learned counsel suggests that you cannot have damages of this character, because really in the case of a warship it has no value at all. That is a strange and somewhat bold assertion. If it was an ordinary commercial vessel capable of being used for ob- taining profits, I suppose there would not be very much difficulty in finding out what the ordinary use of a vessel of this size and capacity and so forth would be, what would be the hire of such a vessel, and what would therefore be the equivalent in money of not obtaining the use of that vessel according to the agreement during the period which had elapsed between the time of proper delivery and the time at which it was delivered in fact. But, says the learned counsel, you cannot apply that principle to the case of a warship because a war- ship does not earn money. It is certainly a somewhat bold conten- tion. I should have thought that the fact that a warship is a warship, her very existence as a warship capable of use for such and such a time, would prove the fact of damage if the party was deprived of it, although the actual amount to be earned by it, and in that sense to be obtained by the pa^Tnent of' the price for it, might not be very easily ascertained — not so easily ascertained as if the vessel were used for commercial purposes and where its hire as a commercial vessel is ascertainable in money. But, my Lords, is that a reason for sa^-ing that you are not to have damages at all? It seems to me it is hopeless to make such a contention, and although that would not in itself be a very cogent 85G CLIDEBANK ENGINEERING ETC. CO. V. YZQIERDO. [CHAP. VI. argument because the law might be so absurd, yet it would be a very- startling proposition to say that you never could have agreed damages for the non-delivery of a ship of war although, under the very same words with exactly the same phraseology in the particular contract, you might have damages if it was a vessel used for commercial pur- poses; so that you would have to give a different construction to the very same words according to whether the thing agreed to be built was a warship or a ship intended for commercial purposes. My Lords, I think it is only necessary to state the contention to shew that it is utterly unsound. Then there comes another argument which, to my mind, is more startling still: the vessel was to be delivered at such and such a time; it was not delivered, but the fleet the Spanish Government had was sent out at such a time and the greater part of it was sunk, and, says the learned counsel, " If we had kept our contract and delivered these vessels they would have shared the fate of the other vessels belonging to the Spanish Government, and therefore in fact you have got your ships now, whereas if we had kept our contract they would have been at the bottom of the Atlantic." My Lords, I confess, after some ex- perience, I do not think I ever heard an argument of that sort before, and I do not think I shall often hear it again. Nothing could be more absurd than such a contention, which, if it were reduced to a com- pendious form such as one has in a marginal note, would certainly be a striking example of jurisprudence. I think I need say no more to shew how utterly absurd such a contention is. I pass on to the other question. It seems to me, when one looks to see what was the nature of the transaction in this case, it is hopeless to contend that the parties only intended this as something in terroreni. Both parties recognised the fact of the importance of time ; it is a case in which time is of the essence of the contract and so regarded by both parties, and the particular sum fixed upon as being the agreed amount of damages was suggested by the defendants themselves, and to say that that can be uncon- scionable or something which the parties ought not to insist upon, that it was a mere holding out something in tcrrorem, after looking at the correspondence between the parties is, to my mind, not a very plausible suggestion. I have, therefore, come to the conclusion that the judgments of the Courts in Scotland are perfectly right in this respect, and I think there is no ground for the contention that this is not pactional damage agreed to between the parties — and for very excellent reason agreed to between the parties — at the time the con- tract was entered into. My Lords, then there comes the further question as to waiver. That question, of course, assumes that these damages can be recovered, apart from the question of whether or not this vested right of action, which undoubtedly was a vested right of action, for the non-delivery SECT. VI.] CLYDEBANK ENGINEERING ETC. CO. V. YZQIERDO. 857 of these boats within the Hmit of time can be answered by saying that it has been released by waivqr. I am not certain that I understand the apphcation of the doctrine of waiver to such a question as we are now deahng with of the release of a right of action already vested; but, assuming we get over that difficulty, I do not feel as a matter of fact that there is any evidence upon which anybody could reasonably rely that there was an agreement assented to by both parties that these damages should be waived. The earlier part of this transaction and the correspondence between the parties I think is quite satisfac- torily dealt with by the Lord Ordinary in his very lucid judgment, and it comes to this : that because for some time — I tliink I may say in aid of the defendants' argument some considerable time — this was not put forward or insisted upon, that, of itself, is to be absolute evidence of a waiver. I do not see it. I must say I never heard of a waiver, the issue upon which is undoubtedly upon the party who averred it, established by such a proposition. The mere fact of pay- ment without deduction I think may be dealt with very shortly. As- suming a great desire to get these vessels, and assuming that the Spanish Government were in earnest — and I do not know why it can be suggested that they were not — to get these vessels with great urgency, it would to my mind have been a very extraordinary thing if they should have risked the delay which would have arisen from a controversy in respect of claims which the builders undoubtedly had, and if they had given, as it were, an excuse for the non-delivery of the ships by reason of those claims giving rise to the sort of argument which has lasted not a short time here, and which would have come up to this House long after the war between the American and the Spanish Governments had come to an end. My Lords, under those circum- stances it appears to me a very natural thing that the claim was not insisted upon in the first instance; and with reference to the delay afterwards I cannot help having regard to the mode of Spanish ad- ministration; apart from any intention to waive, I can well imagine that for some time the question was allowed to hang over until the de- partments in London and in Madrid had ascertained their respective rights and the Spanish Government had made a claim. It is enough, however, to say that there is no evidence upon which any tribunal should reasonably act, even if there could be a waiver in point of law, as to which I venture to express considerable doubt; but, be that as it may, there is no evidence upon that, and I need not therefore ex- press any opinion upon that subject. I am entirely of opinion that the judgments of the Court below are right, and I move your Lordships that this appeal be dismissed with costs. Lords Davey and Robertson delivered concurring opinions. 858 UNITED STATES V. BETHLEHEM STEEL CO, [CHAP. VI. UNITED STATES v. BETHLEHEM STEEL CO. ^ Supreme Court of the United States, 1906. [Reported 205 U. S. 105.] The Company filed its petition in the Court of Claims seeking to recover a balance which it alleged was due from the LTnited States on a contract for the construction of certain gun carriages. The United States had deducted from the contract price an amount agreed upon as to be deducted for delay in performance.^ Peckham, J. It is objected on the part of the company that as the contract in question is, as asserted, plain and unambiguous in its terms, no reference can be made to other evidence or to documents which do not form part of the contract. The general rule that prior negotiations are merged in the terms of a written contract between the parties is referred to, and it is insisted that under that rule the various letters passing between the parties prior to the execution of the contract are not admissible. The rule that prior negotiations are merged in the contract is general in its nature, and, we think, does not preclude reference to letters be- tween the parties prior to the execution of the contract in this case. The language employed in this contract for a deduction, in the dis- cretion of the Chief of Ordnance, of $35 per day from the price to be paid for each day of delay in the delivery of each gun carriage, respec- tively, taken in connection with the subject-matter of the contract, leaves room for the construction of that language in order to determine which was intended, a penalty or liquidated damages. While it is claimed that there is really no doubt as to the proper construction of the contract, even if the contract alone is to be considered, yet we think that much light is given as to the true meaning of language that is not wholly free from doubt by a consideration of the correspondence between the parties before the final execution of the contract itself. Lender such circumstances we think it never has been held that recourse could not be had to the facts surrounding the case and to the prior negotiations for the purpose of determining the correct construction of the language of the contract. Simpson v. United States, 199 U. S. 397- 399. In Brawley v. United States, 96 U. S. 168-173, the court says: " Previous and contemporaneous transactions may be all very properly taken into consideration to ascertain the subject-matter of a contract and the sense in which the parties may have used particular terms." It is not for the purpose of making a contract for the parties, but to understand what contract was actually made, that in cases of doubt as > This short statement is substituted for that of Mr. Ju.stice Peckham. — Ed. SECT. VI.] UNITED STATES V. BETHLEHEM STEEL CO. 859 to the meaning of language actually used prior negotiations may some- times be referred to. There has in almost innumerable instances been a question as to the meaning of language used in that part of a contract which related to the payment of damages for its non-fulfillment, whether the provision there made was one for liquidated damages or whether it meant a penalty simply, the damages to be proved up to the amount of the penalty. This contract might be considered as being one of that class where a doubt might be claimed, if nothing but the contract were examined. The courts at one time seemed to be quite strong in their \'iews and would scarcely admit that there ever was a valid contract providing for liquidated damages. Their tendency was to construe the language as a penalty, so that nothing but the actual damages sustained by the party aggrieved could be recovered. Subsequently the courts became more tolerant of such provisions, and have now become strongly inclined to allow parties to make their o^ti contracts, and to carry out their inten- tions, even when it would result in the recovery of an amount stated as liquidated damages, upon proof of the violation of the conti-^ct, and without proof of the damages actually sustained. This whole subject is reviewed in Sun Printing & Publishing Association v. Moore, 183 U. S. 642, 669, where a large number of authorities upon this subject are referred to. The principle decided in that case is much like the con- tention of the Government herein. The question always is, what did the parties intend by the language used? When such intention is ascertained it is ordinarily the duty of the court to carry it out. See also Clement v. Cash, 21 N. Y. 253, 257; Little v. Banks, 85 N. Y. 258, 266. The Government at the time of the execution of this contract (which was dated April 4, 1898) was making preparation for the expected war with Spain, which was imminent, and which was declared by Congress a few days thereafter. The Government was evidently desirous of obtaining the construction of these gun carriages as early as it was reasonably possible, and it was prepared to pay an increased price for speed. The acceptance of the proposal at the highest price for the delivery of the carriages in the shortest time is also evidence of the im- portance with which the Government officers regarded the element of speed. There can be no doubt as to its importance in their opinion, or that such opinion was communicated to the company. In the light of this fact an examination of the language of the contract itself upon the question of deductions for delay in delivery renders its meaning quite plain. It is true that the word " penalty " is used in some portions of the contract, although in the clause providing for the $35 per day de- duction that word is not used, nor are the words "liquidated damages" to be found therein. The word " penalty " is used in the correspondence, even by the officers of the Government, but we think it is evident that the word was not used in the contract nor in the correspondence as SCO UNITED STATES L\ BETHLEHEM STEEL CO. [CHAP. VI. indicative of the technical and legal difference between penalty and licfuidated damages. It was used simply to provide that the amount named might be deducted if there were a delay in delivery. Either expression is not always conclusive as to the meaning of the parties. Little V. Banks, 85 N. Y., supra; Ward v. Hudson River Building Co., 125 N. Y. 230. What was meant by the use of the language in question in this case is rendered, as we think, still more certain by the manner in which the $35 per day was arrived at, as stated in the letters of the officers representing the Government, whiclL were examined and criti- cized by the company before the signing of the contract. The corre- spondence shows that the sum was arrived at by figuring the average difference in time of delivery between the price bid for slow delivery of the carriages and the price under the accepted bid, the department saying " that this average difference should be the prescribed penalty." Having this question before them and the amount stated arrived at in the manner kno^\'n to both parties, we think it appears from the contract and the correspondence that it was the intention of the parties that this amount should be regarded as liquidated damages, and not technically as a penalty. This view is also strengthened when we recognize the great difficulty of proving damage in a case like this, regard being had to all the circumstances heretofore referred to. It would have been very unusual to allow the company to obtain the con- tract for the construction of these carriages, and yet to place it under no liability to fulfill it as to time of delivery, specially agreed upon, other than to pay only those actual damages (not exceeding $35 per day) that might be proved were naturally and proximately caused by the failure to deliver. The provision under such circumstances would be of no real value. The circumstances were such that it would be almost necessarily impossible to show what damages (if any) might or naturall}' would result from a failure to fulfill the contract. The fact that not very long after the contract had been signed and the war with Spain was near "its end, the importance of time as an element largely disap- peared, and that practically no damage accrued to the Government on account of the failure of the company to deliver, cannot affect the mean- ing of this clause as used in the contract nor render its language sub- stantially worthless for any purpose of security for the proper perform- ance of the contract as to time of delivery. The amount is not so extraordinarily disproportionate to the damage which might result from the failure to deliver the carriages, as to show that the parties nmst have intended a penalty and could not have meant liquidated damages. If the contract were construed as contended for by the company, it would receive (as events have turned out) the high- est price for the longest time in which to deliver, which could not have been contemplated by either party. This would result from the finding that no damages in fact flowed from the failure to deliver on time. The eighth finding of the Court of Claims is in effect that the failure SECT. VI.] WISE V. UNITED STATES. 861 to deliver was caused in part by both parties; that the total number of days' failure was 1,09G days, of which 496 were caused by the de- fendant's officers, and it does not mean that the court regarded itself as bound by the decision of the Chief of Ordnance as to the number of days that the claimant or the Government delayed the delivery. It •found the number of days as stated, and that the transactions were so involved that whether the defendant should be charged with a greater proportion of the delays than set forth in the finding, the court could not decide on the evidence produced. The judgment of the Court of Claims must be reversed and the cause remanded with directions to dismiss the petition. Reversed. WISE V. UNITED STATES. Supreme Court of the United States, 1919. [Reported 249 U. S. 361.] Clarke, J. In December, 1904, Stannard, represented in this case by his Trustee in Bankruptcy, contracted with the United States to erect two laboratory buildings for the Department of Agriculture, in the city of Washington, D. C, for .11,171,000. The buildings were both to be completed in thirty months and for a delay of 101 days beyond the contract period the Government deducted from the contract price $200 a day, the amount stipulated in the contract as liquidated damages, a total of $20,200, and the claim made in this court is for the recovery of that amount. The Court of Claims dismissed the petition and the case is here on appeal. The contract was in writing and the specifications, which the con- tractor had before him when bidding, were made a part of it. These specifications contain thefollowing: "11. Each bidder must submit his proposal with the distinct under- standing that, in case of its acceptance, time for the completion of the work shall be considered as of the essence of the contract, and that for the cost of all extra inspection and for all amounts paid for rents, sal- aries, and other expenses entailed upon the United States by delay in completing the contract, the United States shall be entitled to the fixed sum of $200, as liquidated damages, computed, estimated, and agreed upon, for each and every day's delay not caused by the United States." The provision of the contract upon the subject is : "3. To complete the said work in all its parts within thirty months from the date of the receipt of the notice referred to in subdi\ision 2 862 WISE V. UNITED STATES. [CHAP. VI. hereof. Time is to be considered as of the essence of the contract, and in case the completion of said work shall be delayed beyond said period, the party of the second part may, in view of the difficulty of estimating witli exactness the damages which will result, deduct as liquidated damages, and not as a penalty, the sum of two hundred dollars ($200.00) for each and every day during the continuance of such delay and until such work shall be completed, and such deductions may be made from time to time, from any payment due hereunder." There is no dispute as to the extent of the delay and the sole con- tention of the appellant is that, because a single sum in damages is stipulated for, without regard to whether the completion of one or both buildings should be delayed, and because the damage to the Govern- ment would probably be less in amount if one were completed on time and the other not, than if the completion of both were delayed, the provision of the contract with respect to liquidated damages cannot be considered the result of a genuine pre-estimate of the loss which would be caused by the delay but must be regarded as a penalty which requires proof of damage in any amount to be deducted. If it were not for the earnestness with which this claim is presented we should content ourselves with the observation that as there was delay in the completion of both buildings, the case falls literally within the terms of the contract of the parties and that a court will refuse to imagine a different state of facts than that before it for the purpose of obtaining a basis for modifying a written agreement, which evidently was entered into with great deliberation. The subject of the interpretation of provisions for liquidated damages in contracts, as contradistinguished from such as provide for penalties, was elaborately and comprehensively considered by this court in Sun Printing & Publishing Association v. Moore, 183 U. S. 642, applied in United States v. Bethlehem Steel Co., 205 U. S. 105, and the result of the modern decisions was determined to be that in such cases courts will endeavor, by a construction of the agreement which the parties have made, to ascertain what their intention was when they inserted such a stipulation for payment, of a designated sum or upon a designated basis, for a breach of a covenant of their contract, precisely as they seek for the intention of the parties in other respects. When that intention is clearly ascertainable from the writing, effect will be given to the provi- sion, as freely as to any other, where the damages are uncertain in nature or amount or are difficult of ascertainment or where the amount stipu- lated for is not so extravagant, or disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention or oppression. There is no sound reason why persons competent and free to contract may not agree upon this subject as fully as upon any other, or why theii; agreement, when fairly and understandingly entered into with a view to just compensation for the anticipated loss, should not be enforced. SECT. VI.] . WISE V. UNITED STATES. 863 There are, no doubt, decided cases which tend to support the con- tention advanced by appellant, but these decisions were, for the most part, rendered at a time when courts were disposed to look upon such provisions in contracts with disfavor and to construe them strictly, if not astutely, in order that damages, even though termed liquidated, might be treated as penalties, so that only such loss as could be defi- nitely proved could be recovered. The later rule, however, is to look with candor, if not with favor, upon such provisions in contracts when deliberately entered into between parties who have equality of oppor- tunity for understanding and insisting upon their rights, as promoting prompt performance of contracts and because adjusting in advance, and amicably, matters the settlement of which through courts would often involve difficulty, uncertainty, delay and expense. The result of the application of the doctrine thus stated to the case before us cannot be doubtful. ' The character of the contract and the amount involved assures experience and large capacity in the contractor and the parties specifically state that the amount agreed upon as liqui- dated damages had been "computed, estimated and agreed upon" be- tween them. It is obvious that the extent of the loss which would result to the Government from delay in performance must be uncertain and difficult to determine and it is clear that the amount stipulated for is not excessive, having regard to the amount of money which the Government would have invested in the buildings at the time when such delay would occur, to the expense of s,ecuring or continuing in other buildings during such delay, and to the confusion which must neces- sarily result in the important and extensive laboratory operations of the Department of Agriculture. The parties to the contract, with full understanding of the results of delay and before diflferences or interested views had arisen between them, were much more competent to justly determine what the amount of damage would be, an amount necessarily largely conjectural and resting in estimate, than a court or jury would be, directed to a conclu- sion, as either must be, after the event, by views and testimony deri\ed from witnesses who would be unusual to a degree if their conclusions were not, in a measure, colored and partisan. There is nothing in the contract or in the record to indicate that the parties did not take into consideration, when estimating the amount of damage which would be caused by delay, the prospect of one building being delayed and the other not, and the amount of the damages stipu- lated, having regard to the circumstances of the case, may well have been adopted with reference to the probability of such a result. The judgment of the Court of Claims must be Affirmed. 864 GODDARD V. (.RAND TRUNK RAILWAY. [CHAP. VI. SECTION VII. Exemplary Damages. GODDARD V. GRAND TRUNK RAILWAY. Supreme Judicial Court of Maine, 1869. [Reported 57 Me. 202.] Trespass for an alleged assault by a servant of the defendants, in one of their first-class passenger cars, upon the plaintiff. Walton, J. . . . We now come to the second branch of the case. What is the measure of relief which the law secures to the injured party; or, in other words, can he recover exemplary damages? We hold that he can. The right of the jury to give exemplary damages for injuries wantonly, recklessly, or maliciously inflicted, is as old as the right of trial by jury itself; and is not, as many seem to suppose, an innovation upon the rules of the common law. It was settled in Eng- land more than a century ago. In 1763, Lord Chief Justice Pratt (afterwards Earl of Camden), with whom the other judges concurred, declared that the jury had done right in giving exemplary damages. Huckle v. Money, 2 Wilson, 205. In another case the same learned judge declared with emphasis, that damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty. Campbell's Lives of the Chancellors, Am. edition, vol. 5, p. 214. In 1814, the doctrine of punitive damages was stringently applied in a case where the defendant, in a state of intoxication, forced himself into the plaintiff's company, and insolently persisted in hunting upon his grounds. The plaintiff recovered a verdict for five hundred pounds, the full amount of his ad damnum, and the court refused to set it aside. Mr. Justice Heath remarked in this case that he remembered a case where the jury gave five hundred pounds for merely knocking a man's hat off, and the court refused a new trial. It goes, said he, to prevent the practice of dueling, if juries are permitted to punish insult by ex- emplary damages. Merest v. Harvey, 5 Taunt. 442. See also, to the same effect, Sears v. Lyon, 2 Starkie, 317, decided in 1818. In 1844, Lord Chief Baron Pollock said, that in actions for malicious injuries, juries had always been allowed to give what are called vin- dictive damages. Doe v. Filliter, 13 M. & W. 50. In 1858, in an action of trespass for taking personal property on a fraudulent bill of sale, the defendant's counsel contended that it was not a case for the application of the doctrine of exemplary damages; SECT. VII.] GODDARD V. GRAND TRUXK RAILWAY. 865 but the court held otherwise. No doubt, said Pollock, C. R., it was a case in which vindictive damages might be given. Thomas v. Harris, 3 H. & X. 961. In 1860, in an action for willful negligence, the defendant contended that the plaintiff's declaration was too defective to entitle him to ex- emplary damages; but the court held otherwise; and the judge who tried the case remarked that he was glad the court had come to the conclusion that it was competent for the jury to give exemplary dam- ages, for he thought the defendant had acted with a high hand. Emblem v. Myers, 6 H. & N. 54. "Damages exemplary," is now a familiar title in the best English law reports. See 6 H. & N. 969. It was the firmness with which Lord Camden (then Chief Justice Pratt) maintained and enforced the right of the jury to punish \\'ith exemplary damages the agents of Lord Halifax (then Secretary of State) for the illegal arrest of the publishers of the North Briton, that made him so immensely popular in England. Nearly or quite twenty of those cases appear to have been tried before him, in all of which enormous damages were given, and in not one of them was the verdict set aside. In one of the cases a verdict for a thousand pounds was returned for a mere nominal imprisonment at the house of the officer making the arrest, and the court refused to set it aside. Beardmore v. Carrington, 2 Wilson, 244. "After this," says Lord Campbell, in his Li\-es of the Chancellors, "he became the idol of the nation. Grim representations of him laid down the law from sign-posts, many busts and prints of him were sold not only in the streets of the metropolis, but in the provincial towms; a fine portrait of him, by Sir Joshua Reynolds, with the flattering in- scription, 'in honor of the zealous asserter of English liberty by law,' was placed in the Guildhall of the city of London; addresses of thanks to him poured in from all quarters; and one of the sights of London, which foreigners went to see, was the great Lord Chief Justice Pratt." In this country, perhaps Lord Camden is l)etter known as one of the able English statesmen who so eloquently defended the American colonies against the unjust claim of the mother country to tax them. Lord Campbell says some portions of his speeches upon that subject are still in the mouths of schoolboys. But in P^ngland his immense popularity originated in his firm and vigorous enforcement of the doc- trine of exemplary damages. And we cannot discover that the legality of his rulings in this particular was ever seriously called in question. On the contrary, we find it admitted by his political opponents that he was a profound jurist and an able and upright judge. His stringent enforcement of the right of the jury to punish flagrant wTongs with exemplary damages, arrested not only great abuses then existing, but it has had a salutary influence ever since. It won for him the title of the "asserter of English liberty by law." 866 GODDARD V. GRAND TRUNK RAILWAY. [CHAP. VI. In this country the right of the jury to give exemplary damages has been much discussed. It seems to have been first opposed by Mr. Theron IVIetcalf (afterwards reporter and judge of the supreme court of Massachusetts), in an article published in 3 American Jurist, 387, in 1830. The substance of this article was afterwards inserted in a note to Mr. Greenleaf 's work on Evidence. Mr. Sedgwick, in his work on Damages, took the opposite view, and sustained his position by the citation of numerous authorities. Professor Greenleaf replied in an article in the Boston Law Reporter, vol. 9, p. 529. Mr. Sedgwick rejoined in the same periodical, vol. 10, p. 49. Essays on different sides of the question were also published in 3 American Law Magazine, N. S. 537, and 4 American Law IVIagazine, N. S. 61. But notwith- standing this formidable opposition, the doctrine triumphed, and must be regarded a^ now too firmly established to be shaken by anything short of legislative enactments. In fact the decisions of the courts are nearly unanimous in its favor. In a case in the supreme court of the United States, Mr. Justice Grier, in delivering the opinion of the court, says, it is a well-estab- lished principle of the common law, that in all actions for torts the jury may inflict what are called punitive or exemplary damages, hav- ing in view the enormity of the offense rather than the measure of compensation to the plaintiff. " We are aAvare," the judge continues, "that the propriety of this doctrine has been questioned by some WTiters; but if repeated judicial decisions -for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument." Day v. Woodworth, 13 Howard, 363. In a case in North Carolina, the court refer to the note in Professor Greenleaf's work on Evidence, and say that it is very clearly wrong with respect to the authorities; and in their judgment WTong on prin- ciple; that it is fortunate that while juries endeavor to give ample compensation for the injury actually received, they are also allowed such full discretion as to make verdicts to deter others from flagrant violations of social duty. And the same court hold that the wealth of the defendant is a proper circumstance to be weighed by the jury, because a thousand dollars may be a less punishment to one man than a hundred dollars to another. In one case the same court sustained a verdict which in terms assessed the actual damages at $100, and the exemplary damages at $1,000. The court held it was a good verdict for SI, 100. Pendleton v. Davis, 1 Jones (N. C), 98. McAulay v. Birkhead, 13 Iredell, 28. Gilreath r. Allen, 10 Iredell, 67. In fact, Professor Greenleaf is himself an authority for the doctrine of exemplary damages. Speaking of the action for assault and battery, he says the jury are not confined to the mere corporal injury, but may consider the malice of the defendant, the insulting character of his conduct, the rank in life of the several parties, and all the circum- stances of the outrage, and thereupon award such exemplar}^ damages SECT. VII.] GODDARD V. GRAND TRUNK RAILWAY. 867 as the circumstances may in their judgment require. 2 Greenl. on Ev., § 89. But if the great weight of Professor Greenleaf's authority were to be regarded as opposed to the doctrine, we have, on the other hand, the great weight of Chancellor Kent's opinion in favor of it. He says, surely this is the true and salutary doctrine. And after reviewing the English cases, he continues by saying it cannot be necessary to mul- tiply instances of its application; that it is too well settled in practice, and too valuable in principle to be called in question. Tillotson v. Cheetham, 3 Johnson, 56 and 64. This brief review of the doctrine of exemplary damages is not so much for the purpose of establishing its existence, as to correct the erroneous impression which some members of the legal profession still seem to entertain, that it is a modern invention, not sanctioned by the rules of the common law. We think every candid-minded person must admit that it is no new doctrine; that its existence as a fundamental rule of the common law has been recognized in England for more than a century; that it has been there stringently enforced under circum- stances which would not have allowed it to pass unchallenged, if any pretext could have been found for doubting its validity; and that in this country, notwithstanding an early and vigorous opposition, it has steadily progressed, and that the decisions of the courts are now nearly unanimous in its favor. It was sanctioned in this State, after a careful and full review of the authorities, in Pike v. Billing, 48 Me. 539, and cannot now be regarded as an open question. But it is said that if the doctrine of exemplary damages must be regarded as established in suits against natural persons for their own willful and malicious torts, it ought not to be applied to corporations for the torts of their servants, especially where the tort is committed by a servant of so low a grade as a brakeman on a railway train, and the tortious act was not directly nor impliedly authorized nor ratified by the corporation; and several cases are cited by the defendants' counsel, in which the courts seem to have taken this view of the law; but we have carefully examined these cases, and in none of them was there any evidence that the servant acted wantonly or maHciously; they were simply cases of mistaken duty; and what these same courts would have done if a case of such gross and outrageous insult had been before them, as is now before us, it is impossil)le to say; and long experience has sho^\^l that nothing is more dangerous than to rely upon the abstract reasoning of courts, when the cases before them did not call for the application of the doctrines which their reasoning is intended to establish. We have given to this objection much consideration, as it was our duty to do, for the presiding judge declined to instruct the jury that if the acts and words of the defendants' servant were not directly nor impliedly authorized nor ratified by the defendants, the plaintiff could 868 GODDARD V. GRAND TRUNK RAILWAY. [CHAP. VI. not recover exemplary damages. We confess that it seems to us that there is no class of cases where the doctrine of exemplary damages can be more beneficially applied than to railroad corporations in their capacity of common carriers of passengers; and it might as well not be applied to them at all as to limit its application to cases where the servant is directly or impliedly commanded by the corporation to maltreat and insult a passenger, or to cases where such an act is di- rectly or impliedly ratified; for no such cases will ever occur. A cor- poration is an imaginary being. It has no mind but the mind of its servants; it has no voice but the voice of its servants; and it has no hands with which to act but the hands of its servants. All its schemes of mischief, as well as its schemes of public enterprise, are conceived by human minds and executed by human hands; and these minds and hands are its servants' minds and hands. All attempts, therefore, to distinguish between the guilt of the servant and the guilt of the cor- poration ; or the malice of the servant and the malice of the corporation ; or the punishment of the servant and the punishment of the corpora- tion, is sheer nonsense; and only tends to confuse the mind and con- found the judgment. Neither guilt, malice, nor suffering is predicable of this ideal existence, called a corporation. And yet under cover of its name and authority, there is in fact as much wickedness, and as much that is deserving of punishment, as can be found anywhere else. And since these ideal existences can neither be hung, imprisoned, whipped, or put in the stocks, — since in fact no corrective influence can be brought to bear upon them except that of pecuniary loss, — it does seem to us that the doctrine of exemplary damages is more bene- ficial in its application to them, than in its application to natural per- sons. If those who are in the habit of thinking that it is a terrible hardship to punish an innocent corporation for the wickedness of its agents and servants will for a moment reflect upon the absurdity of their own thoughts, their anxiety will be cured. Careful engineers can be selected who will not run their trains into open draws; and careful baggage men can be secured who will not handle and smash trimks and band-boxes as is now the universal custom; and conductors and brakemen can be had who will not assault and insult passengers; and if the courts will only let the verdicts of upright and intelligent juries alone, and let the doctrine of exemplary damages have its legit- imate influence, we predict these great and growing evils will be very much lessened, if not entirelv cured. There is but one vulnerable point about these ideal existences, called corporations; and that is, the pocket of the monied power that is concealed behind them; and if that is reached they will wince. When it is thoroughly understood that it is not profitable to employ careless and indifterent agents, or reckless and insolent servants, better men will take their places, and not before. It is our judgment, therefore, that actions against corporations, for SECT. VII.] GODDARD V. GRAND TRUNK RAILWAY. 869 the willful and malicious acts of their agents and servants in executing the business of the corporation, should not form exceptions to the rule allowing exemplary damages. On the contrary, we think this is the very class of cases, of all others, where it will do the most good, and where it is most needed. And in this conclusion we are sustained by several of the ablest courts in the country. In a case in Mississippi, the plaintiflF was carried four hundred yards beyond the station where he had told the conductor he wished to stop ; and he requested the conductor to run the train back, but the con- ductor refused, and told the plaintiff to get off the train or he would carry him to the next station. The plaintiff got off and walked back, carrying his valise in his hand. The plaintiff testified that the con- ductor's manner toward him was insolent, and the defendants having refused to discharge him, the jury returned a verdict for four thousand five hundred dollars, and the court refused to set it aside. Thev said the right of the jury to protect the public by punitive damages, and thus prevent these great public blessings from being converted into the most dangerous nuisances, was conclusively -settled; and tliey hoped the verdict would have a salutary influence upon their future management. Railroad, in Error, v. Hurst, 36 Miss. 660. In New Hampshire, in an action against this identical road, where, through gross carelessness, there was a collision of the passenger train with a freight train, and the plaintiff was thereby injured, the judge at jiisi prius instructed the jury that it was a proper case for exemplary damages; and the full court sustained the ruling, saying it w^as a sub- ject in which all the travelling pviblic were deeply interested ; that rail- roads had practically monopolized the transportation of passengers on all the principal lines of travel, and there ought to be no lax adminis- tration of the law in such cases ; and that it would be difficult to suggest a case more loudly calling for an exemplary verdict. [If mere careless- ness, however gross, calls loudly for an exemplary verdict, what shall be said of an injury that is willful and grossly insulting?] Hopkins v. At. & St. LawTence Railroad, 36 New Hamp. 9. Judge Redfield, in his very able and useful work on railways, expresses the opinion that there is quite as much necessity for holding these companies liable to exemplary damages as their agents. He says it is difficult to perceive w^hy a passenger, w^ho suffers indignity and insult from the conductor of a train, should be compelled to show an actual ratification of the act, in order to subject the company to exemplary damages. (2 Redfield on Railways, 231, note.) But if such a ratifi- cation is necessary, he thinjcs the corporation, which is a mere legal entity, inappreciable to sense, should be regarded as always present in the person of its servant, and as directing and ratifying the servant's acts within the scope of his employment, and thus be made responsible for his willful misconduct. 1 Redfield on Railways, 515 et seq. And in a recent case in Maryland (published since this case has been 870 GODDARD V. GRAND TRUNK RAILWAY. [CHAP. YI. pending before the law court), a case in all respects very similar to the one we are now considering, the presiding judge was requested to in- struct the jury that the plaintiff was not entitled to recover vindictive or punitive damages from the defendants, unless they expressly or impliedly participated in the tortious act, authorizing it before or approving it after it was committed; but the presiding justice refused so to instruct the jury, and the full court held that the request was properly rejected; that it was settled that where the injury for which compensation in damages is sought, is accompanied b}^ force or malice, the injured party is entitled to recover exemplary damages. Railroad V. Blocher, 27 Md. 277. But the defendants say that the damages awarded by the jury are excessive, and they move to have the verdict set aside and a new trial granted for that reason. That the verdict in this case is highly punitive and was so designed by the jury, cannot be doubted; but by whose judg- ment is it to be measured to determine whether or not it is excessive? What standard shall be used? It is a case of wanton insult and injury to the plaintiff's character, and feelings of self-respect, and the damages can be measured by no property standard. It is a case where the judg- ment will be very much influenced by the estimation in which character, self-respect, and freedom from insult are held. To those who set a very low value on character, and think that pride and self-respect exist only to become objects of ridicule and sport, the damages will undoubtedly be considered excessive. It would not be strange if some such persons, measuring the sensibilities of others by their own low standard, should view this verdict with envy, and regret that somebody will not assault and insult them, if such is to be the standard of compensation. While others, who feel that character and self-respect are above all price, more valuable than life itself even, wdll regard the verdict as none too large. We repeat, therefore, that it is a case where men's judgments wnll be likely to differ. And suppose the court is of opinion that the damages in this case are greater, much greater even, than they would have awarded, does it therefore follow that the judgment of the court is to be substituted for that of the jury? By no means. It is the "wnsdom of the law to suppose that the judgment of the jury is more likely to be right than the judgment of the court, for it is to the former and not to the latter that the duty of estimating damages is confided. Unless the damages are so large as to satisfy the court that the verdict was not the result of an honest exercise of judgment, they have no right to set it aside. A careful examination of the case fails to satisfy us that the jury acted dishonestly, or that they made any mistake in their application of the doctrine of exemplary damages. We have no doubt that the highly punitive character of their verdict is owing to the fact that, after Jackson's misconduct was known to the defendants, they still retained him in their service. The jury undoubtedly felt that it was due to the ^1 r SECT, VII.] GODDARD V. GRAND TRUNK IL^ILWAY. 871 plaintiff, and due to every other traveller upon that road, to have him instantly discharged; and that to retain him in his place, and thus shield and protect him against the protestation of the plaintiff, made to the servant himself at the time of the assault, that he would lose his place, was a practical ratification and approval of the servant's conduct, and would be so understood by him and by every other serv- ant on the road. And when we consider the violent, long-continued, and grossly insulting character of the assault; that it was made upon a person in feeble health, and was accompanied by language so coarse, pro- fane, and brutal; that so far as appears it was wholly unprovoked; we confess we are amazed at the conduct of the defendants in not instantly discharging Jackson. Thus to shield and protect him in his insolence, deeply implicated them in his guilt. It was such in- difference to the treatment _the plaintiff had received, such indifference to the treatment that other travellers might receive, such indifference to the evil influence which such an example would have upon the servants of this and other lines of public travel, that we are not prepared to say the jury acted unwisely in making their verdict highly punitive. We cannot help feeling that if we should interfere and set it aside, our action would be most unfortunate and detrimental to the public interests. On the contrary, if we allow it to stand, we cannot doubt that its influence will be salutary. It will be an impressive lesson to these defendants, and to the managers of other lines of public travel, of the risk they incur when they retain in their service servants known to be reckless, ill- mannered, and unfit for their places. And it will encourage those who may suffer insult and violence at the hands of such servants, not to retaliate or attempt to become their own avengers, as is too often done, but to trust to the law and to the courts of justice, for the redress of their grievances. It wall say to them, be patient and law-abiding, and your redress shall surely come, and in such measure as will not add insult to your previous injury. On the whole, we cannot doubt that it is best for all concerned that this verdict be allowed to stand. We see nothing in the rulings or charge of the presiding judge, of which the defendants can justly complain. And there is nothing to satisfy us that the jury were prejudiced or unduly biased ; or that they made any mistake either as to' the facts or the law. Our conclusion, therefore, is, that the exceptions and motion must be overruled, Tapley, J., delivered a dissenting opinion.^ Motion and exceptions overruled. 1 " The damages recovered are measured in all cases by the injury caused. Vin- dictive or punitive damages are never allowed in this State." Holmes, J., in Burt v. Advertiser Newspaper Co., 154 Mass. 238, 245. See also Murphy v. Hobbs, 7 Col. 641; Fay v. Parker, 53 N. H. 342. — Ed, 872 HAINES V. SCHULTZ. [CHAP. VI. HAINES V. SCHULTZ. Supreme Court of New Jersey, 1888. [Reported 50 N. J. L. 481.] Garrison, J. The defendant below, who is the proprietor of the Morning Call, was sued in libel for uttering the following language of and concerning the plamtiff : "HOUSE ROBBED. "a young lady boarder supposed to know something about it. "Last night, while Mr. and Mrs. Richard Krowley were at Little Coney Island, their house, No. 3 Hamburgh avenue, was entered by some one who got away with a considerable amount of clothing. Mr. Krowley is of the opinion that a young lady boarder named Mamie Schultz knows something about the theft. The girl has been a boarder at the house for about seven weeks ; and according to Dick's statement Mamie had a number of admirers, and on several occasions she has stayed out late at nights, and no later than last Sunday night she climbed through the window of Mr. and IVIrs. Krowley's sleeping apartments, and Dick is of the opinion that she gained an entrance through the same window last night. On entering the house Mrs. Krowley discovered a bureau drawer and a clothes closet open and to her surprise found that the house had been ransacked and a large number of pieces of her underclothing, together with ribbons and other articles, were missing. Dick visited the police station and noti- fied Captain Bimson, who advised liim to go before the recorder this morning and make a complaint." ,' The testimony shows that this article was written by a reporter in the employ of the defendant, and that it was inserted in the paper without defendant's knowledge, his first intimation of it being the service upon him of the declaration in this cause. No special damages were shown. The plaintiff recovered a substantial verdict against defendant. Five exceptions taken by defendant at the trial are the subject of as many assignments of error. The first is upon the refusal of the court to order a nonsuit at the close of plaintiff's case, for alleged failure of proof. This exception may be dismissed with the remark that the question as to whether the language published tended to disgrace the plaintiff, was properly left to the jury. The other assignments are based upon exceptions to the charge of the court, and are addressed to that portion of the charge on which the law as to exemplary damages is stated. SECT. VII.] HAINES V. SCHULTZ. 873 The fourth assignment is as follows: "But the defendant says, 'I personally had no hand in this.' That is true, but it appears that Mr. Keegan, his reporter, wrote it and had it inserted in the newspaper, and that from the time it was written up to the present day the defendant has never had a word of blame for Mr. Keegan, .and ]Mr. Keegan still remains in his employ. So far as appears, his conduct is approved by his employer. There is nothing in the case to show that it is disapproved. If you believe, then, that Mr. Keegan's conduct is approved by his employer in this matter, you have a right to see what Mr. Keegan's conduct was upon this question of punishment." This language occurs in the charge of the court after the rules for the admeasurement of compensatory damages have been announced to the jury. The general subject of exemplary damages is introduced with the foUownng remark: "But when you have determined what sum you will award her for compensation, you ask j^ourself, 'Will that sum punish the defendant adequately for his conduct?' You turn then to his conduct and see what it is, whether it will call for any punishment beyond what the sum that may be awarded Mamie Schultz as com- pensation will inflict." Then follows a series of instructions as to the allowance of punitive damages, one of which is the exception under consideration. It will be noticed that the proposition laid down by the court is not alone that the defendant may be visited with exemplary damages for language inserted in his paper, although without his knowledge or consent; but that the imposition of punisliment in damages will be controlled by the same considerations which fix his liabilitv for the publication, unless the defendant adduces proof of his r/i^approval of the libelous article. In other words, that the defendant may be mulcted in punitive damages upon the same proof which established his liability for compensatory damages, unless he shows or it appears that he dis- approved of the act of his subordinate. The liability of the defendant to respond, both in compensatory and exemplary damages, in a proper state of the evidence, is not questioned. It is the proposal to relieve the plaintiff of the burden of proof and to transfer it to the defendant that invites discussion. Proprietors of newspapers are unquestionably liable in law for what- ever appears in their columns. Libelous pul)lication is a WTongful act; and when to a wrongful act we add testimony from which a wrongful motive can be inferred, punitive damages may be inflicted. But the maxim respondeat superior is a rule of limitation as well as of liability. If a principal must, on the one hand, answer for his agent's wrongdoing, on the other hand his liability is circumscribed by the scope of his agent's employment, unless there be proof of a ratification by him of his agent's misconduct. 874 LAKE SHORE & MICHIGAN SO. RY. CO. V. PRENTICE. [CHAP. VI. No rule of law is better established than this. The same principle applies, and with equal force, to the doctrine of exemplary damages. Without stopping to re\'iew the history of this class of so-called damages, it is sufficient to say that the right to award them rests primarily upon the single ground — wrongful motive. The engrafting of this notion on to personal suits has resulted in an anomalous rule, the doctrine of punitive damages being a sort of hybrid between a dis- play of ethical indignation and the imposition of a criminal fine. But, whether we regard it in the one light or the other, it is the WTongful personal intention to injure that calls forth the penalty. To this wrongful intent knowledge is an essential prerequisite. But in legal contemplation previous intent is presumed from ratification, and e converso proof of ratification must be made where a previous intent is not presumed. The learned judge correctly apprehended this rule when he placed the defendant's liability to punishment in damages upon the ground of his implied approval of his employee's misconduct. And had there been any proof of such approval, any testimony of general instructions, of which this libel was the outgrowth, any evidence as to ratification, the jury might have been warranted in inferring a wrongful motive to fit the wrongful act. But absence of proof of his disapproval, absence of proof that defendant had reproached his employee, or that he had discharged him — in fine, absence of all proof bearing on the essential question, to wit, defendant's motive — cannot be permitted to take the place of evidence without leading to a most dangerous extension of the doctrine, respondeat superior. A plaintiff, whose claim to punitive damages rests upon a wrongful motive of defendant, not inherent in the offence which fixes his legal liability, must present some proof from which such wrongful motive may be legally inferred. Inasmuch as the plaintiff below failed to do this, the instruction of the court upon this point was misleading. The judgment of the Circuit Court should be reversed. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO. V. PRENTICE. Supreme Court of the United States, 1893. [Reported 147 U. S. 101.] Gray, J. The only exceptions taken to the instructions at the trial, which have been argued in this court, are to those on the sub- ject of punitive damages. SECT. VII.] LAKE SHORE & MICHIGAN SO. RY. CO. V. PRENTICE. 875 The single question presented for our decision, therefore, is whether a railroad corporation can be charged with punitive or exemplary damages for the illegal, wanton and oppressive conduct of a conductor of one of its trains towards a passenger. This question, like others affecting the liability of a railroad cor- poration as a common carrier of goods or passengers — such as its right to contract for exemption from responsibility for its own negli- gence, or its liability beyond its own line, or its liability to one of its servants for the act of another person in its emploj-^ment — is a ques- tion, not of local law, but of general jurisprudence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the several States. Railroad Co. v. Lockwood, 17 Wall. 357, 368; Liverpool Steam Co. v. PhenLx Ins. Co., 129 U. S. 397, 443; Myrick v. Michigan Central Railroad, 107 U. S. 102, 109; Hough v. Railway Co., 100 U. S. 213, 226. The most distinct suggestion of the doctrine of exemplary or puni- tive damages in England before the American Revolution is to be found in the remarks of Chief Justice Pratt (afterwards Lord Camden) in one of the actions against the King's messengers for trespass and im- prisonment under general warrants of the Secretary of State, in which, the plaintiff's counsel having asserted, and the defendant's counsel having denied, the right to recover "exemplary damages," the Chief Justice instructed the jury as follows : " I have formerly delivered it as my opinion on another occasion, and I still continue of the same mind, that a jury have it in their power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likew^se as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself." Wilkes v. Wood, Lofft, 1, 18, 19; S. C. 19 Howell's State Trials, 1153, 1167. See also Huckle v. Money, 2 Wilson, 205, 207; S. C, Sayer on Damages, 218, 221. The recovery of damages beyond compensation for the injury received, by way of punishing the guilty, and as an example to deter others from offending in like manner, is here clearly recognized. In this court, the doctrine is well settled, that in actions of tort the jury, in addition to the sum awarded by way of compensation for the plaintiff's injury, may award exemplary, punitive or vindicti\'e damages, sometimes called smart money, if the defendant has acted wantonly, or oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations. But such guilty intention on the part of the defendant is required in order to charge him with exemplary or punitive damages. The Amiable Nancy, 3 Wheat. 546, 558, 559; Day v. Woodworth, 13 How. 363, 371; Philadelphia &c. Railroad v. Quigley, 21 How. 202, 213, 214; Milwaukee & St. Paul Railway v. Arms, 91 U. S. 489, 493, 495; Missouri Pacific Railway v. 87G LAKE SHORE & MICHIGAN SO. RY. CO. V. PRENTICE. [CIL\P. VI. Humes, 115 U. S. 512, 521; Barry v. Edmunds, 116 U. S. 550, 562, 563; Denver & Rio Grande Railway v. Harris, 122 U. S. 597, 609, 610; Minneapolis & St. Louis Railway v. Beckwith, 129 U. S. 26, 36. Exemplary or punitive damages, being awarded, not by way of compensation to the sufferer, but by way of punishment of the offender, and as a warning to others, can only be awarded against one who has participated in the offence. A principal, therefore, though of course liable to make compensation for injuries done by his agent within the scope of his employment, cannot be held liable for exemplary or puni- tive damages, merely by reason of wanton, oppressive or malicious intent on the part of the agent. This is clearly shown by the judgment of this court in the case of The Amiable Nancy, 3 Wheat. 546. In that case, upon a libel in admiralty by the owner, master, super- cargo and crew of a neutral \-essel against the owners of an American privateer, for illegally and wantonly seizing and plundering the neutral vessel and maltreating her officers and crew, Mr. Justice Story, speak- ing for the court, in 1818, laid down the general rule as to the lia- bility for exemplary or \-indictive damages by way of punishment, as follows : " Upon the facts disclosed in the evidence this must be pro- nounced a case of gross and wanton outrage, without any just provocation or excuse. Under such circumstances, the honor of the country and the duty of the court equally require that a just com- pensation should be made to the unoffending neutrals, for all the injuries and losses actually sustained by them. And if this were a suit against the original wrongdoers, it might be proper to go yet far- ther, and visit upon them, in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered that this is a suit against the OAvners of the pri- vateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to themselves an adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it, nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of the opinion that they are bound to repair all the real injuries and personal WTongs sustained by the libellants, but they are not bound to the extent of A^indictive damages." 3 Wheat. 558, 559. The rule thus laid down is not peculiar to courts of admiralty; for, as stated by the same eminent judge two years later, those courts proceed, in cases of tort, upon the same principles as courts of common law, in allowing exemplary damages, as well as damages by way of compensation or remuneration for expenses incurred, or injuries or losses sustained, by the misconduct of the other party. Boston Manuf. Co. V. Fiske, 2 Mason, 119, 121. In Keene v. Lizardi, 8 Louisiana, 26, 33, Judge Martin said: "It is true, juries sometimes very properly SECT. VII.] LAKE SHORE & MICHIGAN SO. RY. CO. V. PRENTICE. 877 give what is called smart money. They are often warranted in giving vindictive, damages as a punishment inflicted for outrageous conduct. But this is onI\' justifiable in an action against the wrongdoer, and not against persons who, on account of their relation to the offender, are only consequentially liable for his acts, as the principal is respon- sible for the acts of his factor or agent." To the same effect are: The State Rights, Crabbe, 22, 47, 48; The Golden Gate, McAllister, 104; Wardrobe v. California Stage Co., 7 Cal. 118; Boulard v. Calhoun, 13 La. Ann. 445; Detroit Post v. McArthur, 16 Mich. 447; Grund v. Van Vleck, 69 111. 478, 481; Becker v. Dupree, 75 111. 167; Rosenkrans V. Barker, 115 111. 331; Kirksey v. Jones, 7 Ala. 622, 629; Pollock v. Gantt, 69 Ala. 373, 379; Eviston v. Cramer, 57 Wis. 570; Haines v. Schultz, 21 Vroom, (50 N. J. Law,) 481 ; McCarty v. De Armit, 99 Penn. St. 63, 72; Clark v. Newsam, 1 Exch. 131, 140; Clissold v. Machell, 26 Upper Canada, Q. B. 422. The rule has the same application to corporations as to individuals. This court has often, in cases of this class, as well as in other cases, affirmed the doctrine that for acts done by the agents of a corporation, in the course of its business and of their employment, the corporation is responsible, in the same manner and to the same extent, as an in- dividual is responsible under similar circumstances. Philadelphia &c. Railroad v. Quigley, 21 How. 202, 210; National Bank r. Graham, 100 U. S. 699, 702; Salt Lake City v. Hollister, 118 U. S. 256, 261; Denver & Rio Grande Railway v. Harris, 122 U. S. 597, 608. A corporation is doubtless liable, like an individual, to make com- pensation for any tort committed by an agent in the course of his em- ployment, although the act is done wantonly and recklessly, or against the express orders of the principal. Philadelphia & Reading Railroad V. Derby, 14 How. 468; New Jersey Steamboat Co. v. Brockett, 121 LT. S. 637; Howe r. Newmarch, 12 Allen, 49; Ramsden v. Boston & Albany Railroad, 104 Mass. 117. A corporation may even be held liable for a lil^el, or a malicious prosecution, by its agent within the scope of his employment; and the malice necessary to support either action, if proved in the agent, may be imputed to- the corporation. Philadelphia &c. Railroad r. Quigley, 21 How. 202, 211; Salt Lake City v. Hollister, 118 U. S. 256, 262; Reed v. Home Savings Bank, 130 Mass. 443, 445, and cases cited; Krulevitz r. Eastern Railroad, 140 Mass. 573; McDermott v. Evening Journal, 14 ^'room, (43 N. J. Law,) 488, and 15 Vroom, (44 N. J. Law,) 430; Bank of New South Wales v. Owston, 4 App. Cas. 270. But, as well observed by Mr. Justice Eield, now Chief Justice of Massachusetts: "The logical difficulty of imput- ing the actual malice or fraud of an agent to his principal is perhaps less when the principal is a person than when it is a corporation; still the foundation of the imputation is not that it is inferred that the principal actually participated in the malice or fraud, but, the act having been done for his benefit by his agent acting within the scope 878 LAKE SHORE & MICHIGAN SO. RY. CO. V. PRENTICE. [CHAP. VI. of his employment in his business, it is just that he should be held responsible for it in damages." Lothrop v. Adams, 133 Mass. 471, 480, 481. Though the principal is liable to make compensation for a libel published or a malicious prosecution instituted by his agent, he is not liable to be punished by exemplary damages for an intent in which he did not participate. In Detroit Post v. McArthur, in Eviston v. Cramer, and in Haines v. Schultz, above cited, it was held that the publisher of a newspaper, when sued for a libel published therein by one of his reporters without his knowledge, was liable for compensa- tory damages only, and not for punitive damages, unless he approved or ratified the publication; and in Haines v. Schultz the Supreme Court of New Jersey said of punitive damages: "The right to award them rests primarily vipon the single ground — WTongful motive." " It is the wrongful personal intention to injure that calls forth the penalty. To this wrongful intent knowledge is an essential prerequisite." "Ab- sence of all proof bearing on the essential question, to wit, defendant's motive — cannot be permitted to take the place of evidence, without leading to a most dangerous extension of the doctrine respondeat superior." 21 Vroom, (50 N. J. Law,) 484, 485. Whether a principal can be criminally prosecuted for a libel published by his agent with- out his participation is a question on which the authorities are not agreed; and where it has been held that he can, it is a"dinitted to be an anomaly in the criminal law. Commonwealth i\ Morgan, 107 Mass. 199, "203; Regina v. Holbrook, 3 Q. B. D. 60, 63, 64, 70, and 4 Q. B. D. 42, 51, 60. No doubt, a corporation, like a natural person, may be held liable in exemplary or punitive damages for thie act of an agent within the scope of his employment, provided the criminal intent, necessary to warrant the imposition of such damages, is brought home to the cor- poration. Philadelphia &c. Railroad v. Quigley, Milwaukee & St. Paul Railway v. Arms, and Denver & Rio Grande Railway v. Harris, above cited; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Bell V. Midland Railway, 10 C. B. \n. S.) 287; S. C. 4 Law Times (N. S.) 293. Independently of this, in the case of a corporation, as of an indi- vidual, if any wantonness or mischief on the part of the agent, acting within the scope of his employment, causes additional injury to the plaintiff in body or mind, the principal is, of course, liable to make compensation for the whole injury suffered. Kennon v. Gilmer, 131 U. S. 22; Meagher v. Driscoll, 99 Mass. 281, 285; Smith v. Holcomb, 99 Mass. 552; Hawes v. Knowles, 114 Mass. 518; Campbell v. Pullman Car Co., 42 Fed. Rep. 484. In the case at bar, the defendant's counsel having admitted in open court "that the arrest of the plaintiff was wrongful, and that he was entitled to recover actual damages therefor," the jury were rightly SECT. VII.] LAKE SHORE & MICHIGAN SO. RY. CO. V. PRENTICE. 879 instructed that he was entitled to a verdict which would fully com- pensate him for the injuries sustained, and that in compensating him the jury were authorized to go beyond his outlay in and about this suit, and to consider the humiliation and outrage to which he had been subjected by arresting him publicly without warrant and without cause, and by the conduct of the conductor, such as his remark to the plaintiff's wife. But the court, going beyond this, distinctly instructed the jury that "after agreeing upon the amount which will fully compensate the plaintiff for his outlay and injured feelings," they might "add something by way of punitive damages against the defendant, which is sometimes called smart money," if they were "satisfied that the conductor's conduct was illegal, wanton and oppressive." The jury were thus told, in the plainest terms, that the corporation was responsible in punitive damages for wantonness and oppression on the part of the conductor, although not actually participated in by the corporation. This ruling appears to us to be inconsistent with the principles above stated, unsupported by any decision of this court, and opposed to the preponderance of well considered precedents. In Philadelphia & Reading Railroad v. Derby, which was an action by a passenger against a railroad corporation for a personal injury suffered through the negligence of its servants, the jury were instructed that " the damages, if any were recoverable, are to be confined to the direct and immediate consequences of the injury sustained;" and no exception was taken to this instruction. 14 How. 470, 471. In Philadelphia &c. Railroad v. Quigley, which was an action against a railroad corporation for a libel published by its agents, the jury re- turned a verdict for the plaintiff under an instruction that " they are not restricted in giving damages to the actual positive injury sustained by the plaintiff, but may give such exemplary damages if any, as in their opinion are called for and justified, in view of all the circumstances in this case, to render reparation to the plaintiff, and act as an adequate punishment to the defendant." This court set aside the verdict, be- cause the instruction given to the jury did not accurately define the measure of the defendant's liability; and, speaking by Mr. Justice Campbell, stated the rules applicable to the case in these words: "For acts done by the agents of the corporation, either in contractu or in delicto, in the course of its business and of their employment, the cor- poration is responsible, as an indi\idual is responsible under similar circumstances." "Whenever the injury complained of has been in- flicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the WTong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an un- lawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or criminal indifference to civil 880 LAKE SHORE & MICHIGAN SO. RY. CO. V. PRENTICE. [CHAP. VI. obligations. Nothing of this kind can be imputed to these defendants." 21 How. 210, 213, 214. In Milwaukee & St. Paul Railway v. Arms, which was an action against a railroad corporation, by a passenger injured in a collision caused by the negligence of the servants of the corporation, the jury were instructed thus : " If you find that the accident was caused by the gross negligence of the defendant's servants controlling the train, you may give to the plaintiff punitive or exemplary damages." This court, speaking by ^Ir. Justice Davis, and appro\ing and applying the rule of exemplary damages, as stated in Quigley's case, held that this was a misdirection, and that the failure of the employes to use the * care that was required to avoid the accident, " whether called gross or ordinary negligence, did not authorize the jury to \'isit the company ^. with damages beyond the limit of compensation for the injury actually inflicted. To do tliis, there must have ]>een some wilful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Nothing of this kind can be imputed to the persons in charge of the train; and the court, therefore, misdirected the jury." 91 U. S. 495. In Denver & Rio Grande Railway r. Harris, the railroad company, as the record showed, by an armed force of several hundred men, acting as its agents and employes, and organized and commanded by its ^^ce- president and assistant general manager, attacked with deadly weapons the agents and employes of another company in possession of a rail- road, and forcibly drove them out, and in so doing fired upon and in- jured one of them, who thereupon brought an action against the corporation, and recovered a verdict and judgment under an instruc- tion that the jury "were not limited to compensatory damages, but could give punitive or exemplary damages, if it was found that the defendant acted with bad intent, and in pursuance of "an imlawful purpose to forcibly take possession of the railway occupied by the other company, and in so doing shot the plaintiff." This court, speak- ing by Mr. Justice Harlan, quoted and approved the rules laid doA\'Ti in Quigley's case, and affirmed the judgment, not because any evil intent on the part of the agents of the defendant corporation could of itself make the corporation responsible for exemplary or punitive damages, but upon the single ground that the eindence clearly showed that the corporation, by its governing officers, participated in and directed all that was planned and done. 122 U. S. 610. The president and general manager, or, in his absence, the vice- president in his place, actually wielding the whole executive power of the corporation, may well be treated as so far representing the cor- poration and identified with it, that any wanton, malicious or oppres- sive intent of his, in doing UTongful acts in behalf of the corporation to the injury of others, may be treated as the intent of the corporation itself. But the conductor of a train, or other subordinate agent or SECT. VII.] LAKE SHORE & MICHIGAN SO. RY. CO. V. PRENTICE. 881 servant of a railroad corporation, occupies a very different position, and is no more identified with his principal, so as to affect the latter ■with his owTi unlawful and criminal intent, than any agent or servant standing in a corresponding relation to natural persons carrying on a manufactory, a mine, or a house of trade or commerce. The law applicable to this case has been found nowhere better stated than by Mr. Justice Brayton, afterwards Chief Justice of Rhode Island, in the earliest reported case of the kind, in which a passenger sued a railroad corporation for his WTongful expulsion from a train by the conductor, and recovered a verdict, but excepted to an instruction to the jury that " punitive or vindictive damages, or smart money, were not to be allowed as against the principal, unless the principal participated in the WTongful act of the agent, expressly' or impliedly, by his conduct authorizing it or approving it, either before or after it was committed." This instruction was held to be right, for the following reasons : " In cases where punitive or exemplary damages have been assessed, it has been done upon evidence of such wilfulness, recklessness or udckedness, on the part of the party at fault, as amounted to criminality, which for the good of society and warning to the in- dividual ought to be punished. If in such cases, or in any case of a civil nature, it is the policy of the law to visit upon the offender such exemplary damages as will operate as punisliment and teach the lesson of caution to prevent a repetition of criminality, yet we do not see how such damages can be allowed, where the principal is prose- cuted for the tortious act of his servant, unless there is proof in the cause to implicate the principal and make him particeps criminis of his agent's act. No man should be punished for that of which he is not guilty." "Where the proof does not implicate the principal, and, however ^^^cked the servant may have been, the principal neither expressly nor impliedly authorizes or ratifies the act, and the crimi- nality of it is as much against him as against any other member of society, we think it is quite enough, that he shall be liable in com- pensatory damages, for the injury sustained in consequence of the WTongful act of a person acting as his servant." Hagan r. Providence & Worcester Railroad, 3 R. I. 88, 91. The like view was expressed by the Court of Appeals of New York, in an action brought against a railroad corporation by a passenger for injuries suffered by the neglect of a switchman, who was intoxicated at the time of the accident. It was held that e\-idence that the switch- man was a man of intemperate habits, which was known to the agent of the company, having the power to employ and discharge him and other subordinates, was competent to support a claim for exemplary damages; but that a direction to the jury in general terms that in awarding damages they might add to full compensation for the injury "such sum for exemplary damages as the case calls for, depending in a great measure of course upon the conduct of the defendant," entitled 882 LAKE SHORE & MICHIGAN SO. RY. CO. V. PRENTICE. [CHAP. VI. the defendant to a new trial; and Chief Justice Church, deUvering the unanimous judgment of the court, stated the rule as follows : " For in- juries by the negligence of a servant while engaged in the business of the master, within the scope of his employment, the latter is liable for compensatory damages; but for such negligence, however gross or culpable, he is not liable to be punished in punitive damages unless he is also chargeable with gross misconduct. Such misconduct may be established by showing that the act of the servant was authorized or ratified, or that the master employed or retained the servant, knowing that he was incompetent, or, from bad habits, unfit for the position he occupied. Something more than ordinary negligence is requisite; it must be reckless and of a criminal nature, and clearly established. Corporations may incur this liability as well as private persons. If a railroad company, for instance, knowingly and wantonly employs a drunken engineer or switchman, or retains one after knowledge of his habits is clearly brought home to the company, or to a superintending agent authorized to employ and discharge him, and injury occurs by reason of such habits, the company may and ought to be amenable to the severest rule of damages; but I am not aware of any principle which permits a jury to award exemplary damages in a case which does not come up to this standard, or to graduate the amount of such damages by their views of the propriety of the conduct of the defendant, unless such conduct is of the character before specified." Cleghorn v. New York Central Railroad, 56 N. Y. 44, 47, 48. Similar decisions, denying upon like grounds the liability of railroad companies and other corporations, sought to be charged with punitive damages for the wanton or oppressive acts of their agents or ser- vants, not participated in or ratified by the corporation, have been made by the courts of New Jersey, Pennsylvania, Delaware, Mich- igan, Wisconsin, California, Louisiana, Alabama, Texas and West Virginia. It must be admitted that there is a wide divergence in the decisions of the state courts upon this question, and that corporations have been held liable for such damages under similar circumstances in New Hamp- shire, in Maine, and in many of the Western and Southern States. But of the three leading cases on that side of the question, Hopkins v. Atlantic & St. Lawrence Railroad, 36 N. H. 9, can hardly be recon- ciled with the later decisions in Fay v. Parker, 53 N. H. 342,, and Bixby V. Dunlap, 56 N. H. 456; and in Goddard v. Grand Trunk Rail- way, 57 Maine, 202, 228, and Atlantic & Great Western Railway v. Dunp, 19 Ohio St. 162, 590, there were strong dissenting opinions. In many, if not most, of the other cases, either corporations were put upon different grounds in this respect from other principals, or else the distinction between imputing to the corporation such wrongful act and intent as would render it liable to make compensation to the person injured, and imputing to the corporation the intent necessary SECT. VII.] LAKE SHORE & MICHIGAN SO. RY. CO. V. PRENTICE. 883 to be established in order to subject it to exemplary damages by way of punishment, was overlooked or disregarded. Most of the cases on both sides of the question, not specifically cited above, are collected in 1 Sedgwick on Damages, (8th ed.) § 380. In the case at bar, the plaintiff does not appear to have contended at the trial, or to have introduced any evidence tending to show, that the conductor was known to the defendant to be an unsuitable person in any respect, or that the defendant in any way participated in, ap- proved or ratified his treatment of the plaintiff; nor did the instruc- tions given to the jury require them to be satisfied of any such fact before awarding punitive damages. But the only fact which they were required to find, in order to support a claim for punitive damages against the corporation, was that the conductor's illegal conduct was wanton and oppressive. For this error, as we cannot know how much of the verdict was intended by the jury as a compensation for the plain- tiff's injury, and how much by way of punishing the corporation for an intent in which it had no part, the Judgment must he reversed, and the case remanded to the Circuit Court, with directions to set aside the verdict, and to order a neiv trial. Mr. Justice Field, Mr. Justice Harlan and Mr. Justice Lamar took no part in this decision. STATE V BVAHS M o. Pine the deoaaseSfrented farm from def and wife. 7/as told he must give possession at end of lease. This displeased ?ine and gave rise to threats by Fine. Bef,then armed himself and went to oorn field where homooide occurred to oversee division of crop. Instr to jury was if he went near deceased with deadly weapon even tho expecting an assault, he is not jus- tified in self-defense. EXCEPTIONS, HELD: If this were the liw, it would defeat the plea of self defense. A man is allowed to carry deadly weapons if threat- ened and can go any place where it is proper. CHEIGHTOa V QOymBEAXTH Ky 1886 Wilson deceased attempted to arrest def unlawfully and def killed him. V/as convicted of manslaughter. HELD: A man is not justified in taking the life of another who is trying to arrest him, But an attempt to arrest him unlawfully is conseiderd a great pro- vocation, and will reduce a tilling in such an arr- est from murder to manslau;:hter . STATE V SHERT^-lilN R I 1889 i UC SOUTHERN REGIO';;: : ■np-RY FACILITY AA 000 604 267 ■>'.■■ ■■