UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A SUMMARY OF TORTS FRANK A. ERWIN Professor of Law in Ntw York University SECOND EDITION REVISED AND ENLARGED LESLIE J. TOMPKINS 31 WAVERLY PLACE, NEW YORK CITY 1906 COPYRIGHT, 1899, 1906^ BY FRANK A. ERWIN CONTENTS. Introduction. Page. Injuries 1 Difficulty of defining a tort 1 Some definitions 2 Analytical classification of the grounds of liability 2 Tort, contract and crime distinguished 3 Proof in civil and in criminal cases 4 Tort not merged in felony 4 Some maxims 7 Ubi jus, ihi remedium 7 Injuria sine damno 7 Damnum absque injuria 7 Sic utere tuo ut alienum non laedas 8 In jure non remota cau^a sed proxima spectatur 9 Nervous shock in cases of willful tort 11 Nervous shock in actions for negligence 11 Liability for fires negligently set 15' Release of one of two joint tort feasors 16 When release contains a reservation of a right to sue 16 No contribution among joint tort feasors 17 Reason for the rule 17 Limitation of the rule 17 Three main heads of duty 18 Liability in tort 19 Infants 19 Child vs. parent for personal injuries 21 Reason for the denial of a oause of action 21 Lunatics 21 Liability of infants and lunatics for negligence 22 Married women 23 Right of married women to recover for diminished earning capacity 24 Husband or wife is. the other for personal injuries 24 Corporations 28 State or general government 31 Municipal corporations 32 Charitable corporations 34 Actio personalis moritur c^ini persona 37 The rule does not extend to civil death 38 Statutory modifications of the rule : in England 38 Statutory modifications of the rule: in New York 39 Provisions of N. Y. Code of Civil Procedure in actions for death 43 Distribution of damages 44 No double liability 44 Injuries to person and to property, resulting from same tortious act, constitute different causes of action 45 When beneficiaries are non-resident aliens 48 " Compensation for the pecunian,- injuries " 48 iv Contents. Page. Funeral expenses ^^ Recovery not limited to minority 50 The cause of action abates with the death of the wrong- doer 51 Survival of action after death of sole administrator and next of kin 52 Action for personal injury does not abate after verdict. ... 52 Principal and agent ^^ Master and servant ^^ Master and servant: the relation 54 Master's liability to third persons 54 Ma-ster as a common carrier 54 Provocation bv passenger 55 Relation must' exist at time of commission of wrongful act. 56 Reasons for the master's liability 57 Independent contractor 58 Test of independent contractor 59 Master's duty to servant 59 Servant's responsibility to master 60 Servant's liability to third persons 60 Modification of the doctrine of respondeat superior 61 Reasons for the rule "1 Who are fellow-servants 63 Rank or grade immaterial 64 Must be under control of one master 65 Vice-principals not fellow-servants 65 Negligence of master and fellow-servant concurring 66 The employers' liability act (N. Y.) 67 Assault and Battery. Security of person ^^ Assault defined J^ Intent ' * Essential elements ' * Threats ' * Assault included in battery /"* Battery defined f 9 Contact i^ Use of force or violence when not unlawful < 6 Consent 77 Defense of person ^^ Must person assaulted retreat if possible SO Defense of property ^^ Right of recovery by party using excessive force 82 Provocation : effect upon damages •*<4 False Imprisonment. Freedom of person °^ False imprisonment defined o6 Imjjrisonment must be circumscribing »6 Essential elements • • ; • • 8*' Termination of criminal proceeding not a condition precedent °' Contents. v Page. Justification ^^ Arrests with warrant 88 Void and irregular process distinguished 88 Erroneous process 89 Arrests without a warrant : statutory &0 Arrests without a warrant : common law 92 Malice and want of probable cause 93 Injuries in Family Relations. Fiction of service • • • • 95 Negligent injury to child: right to recover for loss of services. 95 Negligent injury to wife: right to recover for loss of services. . 96 Instantaneous death of wife or child: no recovery for loss of services "' Reason of the rule 97 An illogical exception 98 Loss of service and of society distinguished 99 Contributory negligence of wife or child 100 Seduction defined 101 Theory of action for seduction and measure of damages. . . 101 Right to command services 103 Adult daughter 103 Action for seduction do^^s not abate by death of father. . . 103 No right of action by seduced party 103 Seduction under promise of marriage 10.5 Measure of damages for breach of marriage contract unac- companied by .seduction 106 Measure of damages for breach of marriage contract accom- panied by seduction 107 Criminal conversation 108 Libel and Slander. Right to reputation 109 Violation of the right J 10 Slander and libel defined 1 10 Statutory definition of libel HO No civil action for maligning the memory of the dead. ... 110 Essential elements in defamation 110 Tlie law distinguishes between libel and slander Ill Reputation in criminal and in civil actions 112 When evidence of good reputation is admitted in civil actions ; •• H^ When evidence of bad reputation is admitted in civil actions 113 Language actionable, and not actionable, per se 114 Some instances of special damage 115 Special damage in cases actionable per se 115 Imputation of iinchastity actionable per se by statute. ... 116 Liability for publication in libel and in slander 116 Repetition of defnmatinn H^ Repeating defamation with the name of the author 117 Must defamation be malicious 118 Vi CoNTEiSTTS. Page^ Language of the publication 1 IB Intent of speaker 119 Innuendo 119 Averment, colloquium and innuendo 120 Comment and criticism 121 Comment and report distinguished 121 Liberty of the press 121 Truth as a defense 122 Criminal actions 122 Civil actions 123 Justification must be as broad as the charge 123 Mitigating circumstances 123 Mitigation extends only to punitive damages 124 Privilege as a defense 124 Qualified privilege. Malice material 124 Moral duty to communicate 125 Eeports of judicial and legislative proceedings 127 Malice, implied and express, in the law of defamation .... 128 Is the falsity of the libel evidence of malice sufficient to sup{K>rt punitive damages 129 Privilege a question of law. Express malice a question of fact 130 Absolute privilege. Malice immaterial 131 Deceit. Nature of wrong 132 Deceit defined 133 A common-law action 133 Complication with contract 133 Essential elements 134 False representations of material facts 134 Silence and artifice 136 Defendant's knowledge of falsity. Intention 136 Plaintifl's reliance and action upon representations to his damage 138 Who may rely on representations 139 Malicious Prosecution. Essential elements 140 Termination 140 Reason of the rule 141 Termination : nolle prosequi 142 Termination : appeal from judgment 142 What is probable cause 143 When facts must be known 144 Mere belief 144 Conviction 144 Acquittal or discharge 145 Advice of magistrate 147 Advice of counsel 147 Granting a temporary injunction 148 Malice ; 148 Malice, but not want of probable cause, may be inferred. . . 148 Malice and want of probable cause must concur 148 Probable cause a question of law. Malice a question of fact 149 Contents, vii Page. Abuse of process 150 Termination not a condition precedent 151 The complaint in malicious prosecution and in abuse of process 152 Abuse of process distinguished from malicious prosecution. . . . 152 Malicious prosecution in civil actions 153 Distinction between malicious prosecution and false imprison- ment 156 Trespass. Duty regarding property 156 Common-law rights and remedies possessory 156 Trespass defined 157 Trespass upon land 158 Constructive possession 158 The enclosure 159 Justifiable entry 159 Not an action to try title IGl Trespass «& initio 102 Waste 1G3 Trespass to goods 164 Trespass to the person 164 Conversion. Defined 165 Intention 165 Exercise of dominion 166 For whom dominion exercised, is immaterial 166 Acts not implying assertion of title 166 Asportation 167 Distinguished from trespass 168 Ancient modes of redress for loss of goods 168 Replevin 168 Replevin in the cepit and in the detinet 169 Replevin distinguished from trespass 170 Replevin regulated by statute 171 Detinue 171 Trover and conversion 172 Requisites to maintain conversion 172 Possession and property right 173 Demand and refusal 174 Remedies 174 Measure of damages 174 Nuisance. Defined 175 Distinguished from trespass 176 What constitutes a nuisance 176 Injury to property and physical discomfort distinguished. ... 177 Standard for bodily discomfort 178 Classification 179 Public nuisance 179 Private nuisance 180 A public nuisance may also be a private nuisance 181 viii Contents. Page. Continuing nuisance 182 Elevated railroad damage cases 183 Parties 184 Remedies 184 Abatement 185 Theory of abatement 185 Effect of abatement upon action 186 Abatement a dangerous remedy 187 Injunction 187 Damages 189 Negligence. Defined 190 Essential elements 190 Duty owing 191 Purpose or intent 191 Care and caution 192 Standard of duty 194 The standard man 194 Rule as to carriers of passengers 195 Exemption contracts by common carriers 199 Facts and law 199 Presumption of negligence 201 Contributory negligence 203 Defined 203 Reason for the rule 204 Care towards infirm, aged and young 204 Care to be exercised by such persons 204 Doctrine of identification 204 Imputation of negligence to persons non »ui juris 208 Where rule prevails 208 WTiere rule does not prevail 208 The New York rule 209 Criticism of the rule 210 Who are non sui jiiria 211 Contributory negligence: burden of proof on plaintiff 212 Contributory negligence: burden of proof on defendant 212 Jurisdictions placing burden of proof on plaintiff 213 Jurisdictions placing burden of proof on defendant 214 INTRODUCTION Injuries. — "All acts or omissions, whicli tlie law recog- nizes as the subjects of its provision and application, are either contracts, torts, or crimes; the first being agreements, express or implied ; the second, injuries of omission or com- mission, done to individuals ; and the third, injuries done to the public or the State." Hilliard on Torts (3d ed.), 1. Injuries may be the result of " nonfeasance . . . the omission of an act which a person ought to do ; misfeasance . . . the improper doing of an act which a person might lawfully do ; and malfeasance ... the doing of an act which a person ought not to do at all." Bell v. Josselyn, 3 Gray, 309, 311. Difficulty of defining a tort. — " To attempt a definition which would tell its own story on its face would be hopeless. Indeed no definition, helped out however much by explana- tion, can convey an adequate notion of the meaning of the word ; nothing short of careful study of the specific torts of the law will answer, for there is no such thing as a typical tort, an actual tort, that is to say, which contains all the elements entering into the rest. One tort is as perfect as another; and each tort differs from the others in its legal constituents." Bigelow on Torts (7th ed.), 29. " We have been unable to find any accurate and perfect definition of a tort. . . . The text-writers either avoid a definition entirely (Addison on Torts), or frame one plainly imperfect (2 Bouvier's Law Diet. 600), or depend upon one which they concede to be inaccurate, but hold sufficient for judicial purposes. (Cooley on Torts, 3, note 1; Moak's Underbill, 4; 1 Hilliard on Torts, 1.)" Rich v. N. Y. Cent & Hud. R. R. R. Co., 87 K Y. 382, 390.) 2 lNTIiOL>LCTION. Some definitions. — ^'A tort may be said to be, a breach of duty established by municipal law for which a suit for dam- ages can be maintained/' Bigelow on Torts (7th ed.), 30. " To constitute a tort two things mnst concur : a wrongful act committed by the defendant and actual or legal damage to the plaintiff." Addison on Torts, 1, The wrongful act or omission is called injuria; actual or legal damage is called damnum. Mr. F. H. Cooke, in an article entitled "A Proposed New Definition of a Tort" (Harvard Law Review, XIL, 335), defines a tort as "an act or omission, not a mere breach of contract, and producing injury to another, in the absence of any existing lawful relation of which such act or omission is a natural outgrowth or incident." Analytical classification of the grounds of liability. — ** Every tort is an act or omission (not being merely the breach of a duty arising out cf a personal relation, or under- taken by contract) v;hich is related in one of the following ways to harm (including interference with an absolute right, whether there be measurable actual damage or not), suffered by a determinate person : "(a) It may be an act which, Avithout lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of, "(b) It may be an act in itself contrary to law, or an omis- sion of specific legal duty, which causes harm not intended by the person so acting or omitting. "(c) It may be an act violating an absolute right (espe- cially rights of possession or property), and treated as wrong- ful without regard to the actor's intention or knowledge. "(d) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should with due diligence have foreseen and pre- vented. "(e) It may, in special cases, consist merely in not avoid- ing or preventing harm which the party was bound, abso- Inteoduction. O lutely or within limits, to avoid or prevent." Pollock on Torts (7th ed.), 19. Tort, contract and crime distinguished. — " In cases of tort the duty that has been violated is general. It is owed either to all our fellow-subjects, or to some considerable class of them, and it is fixed by the law and the law alone. Here lies the difference between civil wrongs, properly so called, and breaches of contract. . . . But breach of contract, will- ful or not, is the breach of duties which the parties have fixed for themselves. Duties under a contract may have to be in- terpreted or supplemented by artificial rules of law, but they cannot be superseded while there is any contract in being. The duties broken by the commission of civil wrongs are fixed by law, and independent of the will of the parties ; and this is so even where they arise out of circumstances in which the responsible party's owti act has placed him." Pollock on Torts (7th ed.), 2. " Between actions plainly ex contractu and those as clearly ex delicto there exists what has been termed a border-land, v/here the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other, and become 60 nearly coincident as to make their practical separation somewhat difficult. . . . And yet, it is conceded that a tort may grow out of, or make part of, or be coincident with a contract (2 Bouvier), and that precisely the same state of facts, between the same parties, may admit of an action either ex contractu or ex delicto. (Cooley on Torts, 90.) In such cases the tort is dependent upon, while at the same time inde- pendent of contract; for if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon a contract. (1 Addison on Torts, 13. ) * -x- * * * * * " It may be granted that an omission to perform a con- tract obligation is never a tort, unless that omission is also an omission of a legal duty. But such legal duty may arise, not merely out of certain relations of trust and confidence, in- herent in the nature of the contract itself, . . . , but 4 Introduction. may spring from extraneous circumstances, not constituting elements of the contract as such, although connected with and dependent upon it, and born of that -wider range of legal duty which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud." Rich v. N. Y. Cent. & Ilud. R. R. R. Co., 87 K Y. 382, 390 and 398. " The difference betAveen Crimes and Civil Injuries is not to be sought for in a supposed difference between their ten- dencies, but in the difference between the modes wherein they are respectively pursued, or wherein the sanction is ap- plied in the two cases. An offence which is pursued at the discretion of the injured party or his representative is a Civil Injury. An offence which is pursued by the Sovereign, or by the subordinates of the Sovereign, is a Crime." Austin, Juris. Lect., XVII. Proof in civil and in criminal cases. — " We deem it very important that the strict rule of evidence, applicable to the burden of proof in criminal cases, should not be extended to civil actions for the recovery of damages, where the defendant is charged, incidentally, with arson, embezzlement or any other crime. " Wlien life or liberty is involved the proof must exclude \ reasonable doubt, but in a civil action, where a recovery of ! damages is sought against the wrongdoer, the plaintiff is only \ required to sustain his case by a preponderance of evidence." 1 Kurz V. Doerr, 180 ^. Y. 88, 92. «jty» . Tort not merged in felony. — " Where the violation of a *'"''*^ ^^^^''^'^ right admits of a civil and also of a criminal prosecution, the '""'"^^ one is not merged in the other." N. Y. Code Civ. Pro., § 1899. In some cases, the same wrongful act may constitute a crime as well as a tort. Instances are assault and battery, libel, false imprisonment, public nuisance, negligence when Introduction. 5 it causes homicide, conversion when it involves intent to steal (larceny), and fraud if it amounts to the offence of forgery, or of obtaining goods under false pretences. At common law, if the wrongful act amounted to a felony, the aggrieved party could not maintain a civil action until public justice had been satisfied. In such case, the lesser offence was said to be merged in the greater, and the civil action was postponed. " It is a principle of law, . . . , that where any one in the perpetration of a public wrong commits an injury upon another J peculiar to the injured party, in his individual capacity, and not simply as a member of the community, the party injured may sustain an action in his individual capacity for the damages which he may have sustained. This was always the rule in cases of misdemeanor, but it did not at common law extend to felonies, as the private wrong was merged in the felony. But by a provision of our new code, (§ 7), when the violation of a right admits of both a civil and a criminal remedy, the right to prosecute the one is not merged in the other." Smith v. Lochwood, 13 Barb. 209, 217. " Such a doctrine [that the private wrong was merged in the felony] can be found in some of the old English cases, applying to certain conditions, circumstances, and the exist- ence of institutions, known in England, but not known in this country; and though there are cases to be found here, which seem to suppose it to be the common law, it never was adopted in this State. Perhaps it was because its adoption was regarded as being left in doubt, that, as long ago as 1801, the legislature of this State expressly enacted that persons who should be aggrieved by any felony might maintain his or her action in like manner as if it had not been committed feloniously; and in no case should the right of action be merged in the felony, or in any manner affected thereby. (Sess. Laws, 1801, Greenleafs ed., chap. 60, § 19, p. 264.) This statute has been in force ever since, and is now a part of the Kevised Statutes. (Vol. 2, p. 292, § 2.)" Newton v. 6 Introduction. Porter, 5 Lansing, 416, 423. See, also, Mairs v. B. & 0. R. R. Co., 175 K Y. 409, 413. " The doctrine, that all civil remedies in favor of a party injured hj a felony are, as it is said in the earlier authorities, merged in the higher offence against society and public jus- tice, or, according to more recent cases, suspended until after the termination of a criminal prosecution against the offender, is the well-settled rule of law in England at this day, and seems to have had its origin there at a period long anterior to the settlement of this country by our English ancestors. ******* " The source, whence the doctrine took its rise in England, is well known. By the ancient common law, felony was pun- ished by the death of the criminal, and the forfeiture of all his lands and goods to the crown. Inasmuch as an action at law against a person, whose body could not be taken in execution and whose property and effects belonged to the king, would be a useless and fruitless remedy, it was held to be merged in the public offence. Besides ; no such remedy in favor of the citizen could be allowed without a direct interference with the royal prerogative. Therefore a party injured by a felony could originally obtain no recompense out of the estate of a felon, nor even the restitution of his own property, except after a conviction of the offender, by a proceeding called an appeal of felony, which was long dis- used, and wholly abolished by St. 59, Geo. 3, c. 46 ; or under St. 21, H. 8, c. 11, by which the judges were empowered to grant writs of restitution, if the felon Avas convicted on the evidence of the party injured or of others by his procure- ment. 2 Car. & P. 43, note. But these incidents of felony, if they ever existed in this State [Mass.], were discontinued at a very early period in our colonial history. Forfeiture of lands or goods, on conviction of crime, was rarely, if ever, exacted here; and in many cases, deemed in England to be felonies and punishable with death, a much milder penalty was inflicted by our laws. Consequently the remedies, to Introduction. 7 which a party injured was entitled in cases of felony, were never introduced into our jurisprudence. No one has ever heard of an appeal of felony, or a WTit of restitution under St. 21, H. 8, c. 11, in our courts. So far therefore as we know the origin of the rule, and the reasons on which it was founded, it would seem very clear that it was never adopted here as part of our common law." Boston & Worcester R. R. Co. V. Dana, 1 Gray, 83, 96 and 98. Some maxims. — JJhi jus, ihi remedium, i. e., wherever there is a wrong, there is a remedy. This maxim of the law " has at all times been considered so valuable^ that it gave occasion to the first invention of that form of action called an action on the case, where the novelty of the complaint is no objection to the action, provided an injury cognizable by law, is shown to have been inflicted on the plaintiff; for 'this form of action was introduced for the reason that the law would never suffer a w-rong and a damage without a remedy ; ' but there are cases where persons have suffered serious injury from the acts and doings of others of which the law, from reasons of public policy, takes no cognizance." Addison on Torts, 72. Injuria sine (or absque) damno, i. e., a wrongful act or omission without actual damage. Damnum sine (or absque) injuria, i. e., damage without wrongful act or omission; damage from inevitable accident, or from the proper performance of a lawful act. " I can very well understand that no action lies in a case Avhere there is damnum absque injuria; that is, where there is a damage done without any wrong or violation of any right of the plaintiff. But I am not able to understand how it can correctly be said, in a legal sense, that an action will not lie, even in case of a \vrong or violation of a right, unless it is followed by some perceptible damage, which can be established as a matter of fact ; in other words, that injuria sine damno is not actionable. . . . The law tolerates no 8 Intkoductioi?. further inquiry than whether there has been the ■violation of a right. If so, the party injured is entitled to maintain his action for nominal damages, in vindication of his right, if no other damages are fit and proper to renmnerate him." Wehh V. Portland Man. Co., 3 Sumner, 189; 29 Fed. Gas. 506. In some classes of cases, e. g., in deceit and in slander not actionable per se, damage must be alleged and proved in order to make out a cause of action, an injuria. Sic utere tuo ut alieninn tion laedas, i. e., so use your own rights as not to injure another. " It is an elementary principle in reference to private rights, that every individual is entitled to the undisturbed possession and la^vful enjoyment of his own property. The mode of enjoyment is necessarily limited by the rights of others — otherwise it might be made destructive of their rights altogether. Hence the maxim sic utere tuo, etc. '' The use of land by the proprietor is not therefore an absolute right, but qualified and limited by the higher right of others to the lawfid possession of their property." Hay V. The Cohoes Co., 2 Is\ Y. 159, 161. " The maxim sic utere tuo id alienum non laedas is iterated and reiterated in our books, and yet there is scarcely an aphorism known to the law the true application of which is more vague and undefined. Interpreted literally it would enjoin a man against any use of his own property which in its consequences might injuriously affect the interests of others; but no such legal principle ever existed. The affairs of life could not well be conducted under the restraints of such a rule. On the contrary every proprietor has absolute control over his owm property, and may do with it whatever he pleases, unless he thereby infringes some fixed legal right of another. " While, therefore, sic utere tuo, etc., may be a very good moral precept, it is utterly useless as a legal maxim. It Introduction. 9 determines no right; it defines no obligation. The cases to which the maxim has been generally applied are those where the owner of one tenement does some act upon his own premises which injuriously affects the interests of the pro- prietor of an adjoining tenement." Selden, J., in Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y. 444, 445. In jure non remota causa sed proxima spedatur, i. e., the ^*^ damage sustained must be the proximate and not the remote result of the wrongful act. " What is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. 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 tho other end, that force being the proximate cause of the move- ment, 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 consti- tute a continuous succession of events, so linked together as to make a natural whole, or was there some new and inde- pendent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of applica- tion. But it is generally held, that, in order to warrant a finding that negligence, or an act not amounting to wanton v^Tong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or w^rongful act, and that it ought to have been foreseen in the light of the attending circumstances. We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause oper- ating between the wrong and the injury. In such a case 10 Introduction. the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. . . . In a succession of dependent events an interval may always be seen by an acute mind between a cause and its effect, though it may be so imperceptible as to be overlooked by a common mind. ... In the nature of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and inde- pendent agencies, and this must be determined in view of the circumstances existing at the time." Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469, 474. " The maxim causa proxima non remota spectatur means but this. We are not to link together as cause and effect, events having no probable connection in the mind, and which could not by prudent circumspection and ordinary thought- fulness be foreseen as likely to happen in consequence of the act in which we are engaged. It may be true that the injury would not have occurred without the concurrence of our act with the event which immediately caused the injury, but we are not justly called to suffer for it unless the other event was the effect of our act, or were within the probable range of ordinary circumspection when engaged in the act." McGrew V. Sto7ie, 53 Pa. St. 436, 442. " In determining what is proximate cause, the true rule is, that the injury must be the natural and probable conse- quence 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. This is not a limitation of the maxim causa proxima non remota spectatur; it only affects its application." Hoag V. LaJce Shore & Mich. Southern R. R. Co., 85 Pa. St. 293, 298. See, also, Laidlaw v. Sage, 158 N. Y. 73, 98. Intkoduction. 11 Nervous shock in cases of willful tort. — In case of pure assault, mere attempt to do bodily harm, without physical contact, the law has allowed recovery for mental suffering, apparently on the theory that every one has a right to live without being put in fear of personal harm. (Martin v. Shoppee, 3 Carr. & P. 373 ; Stephens v. Myers, 4 id. 349 ; Beach v. Hancock, 27 K H. 223.) That such suffering may be remote and not proximate to the wrongful act is not dis- cussed, much less declared. In the case of Spade v. Lynn & Boston Railroad, 168 Mass. 285, the court, after refusing to allow recovery for mental suffering unaccompanied by bodily injury in an action for negligence, concludes at page 290 : " It is hardly necessary to add that this decision does not reach those classes of actions where an intention to cause mental distress or to hurt the feelings is sho^^Ti, or is reasonably to be inferred, as, for example, in cases of seduction, slander, malicious prosecu- tion, or arrest, and some others. Nor do we include cases of acts don© with gross carelessness or recklessness, showing utter indifference to such consequences, when they must have been in the actor's mind." The Appellate Division of the First Department in this State in the case of Williams v. Underhill, 63 App. Div. 223, 226, says: "As is clearly indicated by the opinion in the Mitchell Case [151 N. Y. 107] the reason for limiting lia- bility in actions for negligence is founded in the principle 0"f law governing such actions, viz., that the measure of dam- age shall be confined to the natural and probable conse- quences of the act or omission constituting the cause of action. The distinction between such a case and one founded upon a willful tort, such as assault, is very clear." Nervous shock in actions for negligence. — When fear and its consequences are the result of a negligent, instead of a wilful act, the tendency of the decisions is to deny recovery, unless bodily injury accompanies. (Mitchell v. Rochester Railway Co., 151 N. Y, 107 ; Spade v. Lynn & Boston R. R. 12 Introduction, Co., 168 Mass. 285 ; Ewing v. P., C. & St. L. By. Co., 147 Pa. St. 40.) This cannot satisfactorily be explained. The courts, in applying the rule of proximate cause, hold in actions for negligence that mental suffering, unaccompanied by bodily injury, is too remote from the alleged wrong, and are seem- ingly influenced thereto by the consideration that to allow such claims would open the flood-gates of litigation and pave the way for much deception, because "mental suffering is so largely subjective, so peculiarly dependent upon the mental traits and idiosyncracies of the alleged sufferer, and so peculiarly incapable of demonstration to a third person." (1 University Law Rev. 822.) " The exemption from liability for mere fright, terror, alarm, or anxiety does not rest on the assumption that these do not constitute an actual injury. They do in fact deprive one of enjopnent and of comfort, cause real suffering, and to a greater or less extent disqualify one for the time being from doing the duties of life. If these results flow from a wrongful or negligent act, a recovery therefor cannot be denied on the ground that these results may not be the direct and immediate consequence of the negligence. Danger ex- cites alarm. Fev/ people are wholly insensible to the emo- tions caused by imminent danger, though some are less affected than others. " It must also be admitted that a timid or sensitive person may suffer not only in mind, but also in body, from such a cause. Great emotion may and sometimes does produce phys- ical effects. The action of the heart, the circulation of the blood, the temperature of the body, as well as the nerv-es and the appetite, may all be affected. A physical injury may be directly traceable to fright, and so may be caused by it. We cannot say, therefore, that such consequences may not flow proximately from unintentional negligence, and if compen- sation in damages may be recovered for a physical injury so caused, it is hard on principle to say why there should not also be a recovery for the mere mental suffering when not accompanied by any perceptible physical effects. Inteoduction. 13 " It would seem therefore that the real reason for refusing damages sustained from mere fright must be something dif- ferent ; and it probably rests on the ground that in practice it is impossible satisfactorily to administer any other rule." Spade V. Lynn & Boston R. B. Co., 168 Mass. 285, 288. The rule, as above stated, seems to be founded on practical expediency rather than on sound reason. The rule of proxi- mate cause is simple and clear ; the difficulty lies in its appli- cation ; but the difficulty of applying a rule is poor argument against its application. If a passenger, placed in imminent peril by the negligence of a carrier, follow the natural in- stinct of self-preservation and jump from the car, he may, in the absence of contributory negligence, recover, notwith- standing, had he remained in the car, he would not have been injured. {^Yilson v. Northern Bad fie B. B. Co., 26 Minn. 278; Buel v. N. Y. C. B. B. Co., 31 K Y. 311; Twomley V. Ce7it. Bark B. B. Co., 69 id. 158; Stokes v. Saltonstall, 13 Pet. 181.) Some jurisdictions do not admit the rule. " Physical injury or illness sometimes causes mental disease. A mental shock or disturbance sometimes causes injury or illness of body, especially of the nervous system, i^ow, if the fright was the natural consequence of — was brought about, caused by — the circumstances of peril and alarm in which defendant's negligence placed plaintiff, and the fright caused the nervous shock and convulsions and consequent illness, the negligence was the proximate cause of those injuries." Burcell v. St. Baiil City By. Co., 48 Minn. 134, 138. In Dulieu v. Wiite & Sons, 2 K. B. 669 (1901), depart- ing from Victorian Bailways Commissioners v. Coultas, 13 App. Cas. 222 (1888), Kennedy, J., at p. 677, says: "Why is the accompaniment of physical injury essential ? For my own part, I should not like to assume it to be scientifically true that a nervous shock which causes serious bodily illness is not actually accompanied by physical injury, although it may be impossible, or at least difficult, to detect the injury at the 14 IiXTKODUCTION. time in the living subject. I should not be surprised if the surgeon or the physiologist told us that nervous shock is or may be in itself an injurious affection of the physical organ- ism. Let it be assumed, however, that the physical injury follows the shock, but that the jury are satisfied upon proper and sufficient medical evidence that it follows the shock as its direct and natural effect, is there any legal reason for saying that the damage is less proximate in the legal sense than damage which arises contemporaneously ? ' As well might it be said ' (I am quoting from the judgment of Palles, C. B., 26 L. R. Ir. at p. 439) ' that a death caused by poison is not to be attributed to the person who administered it because the mortal effect is not produced contemporaneously with its administration.' Remoteness as a legal ground for the exclusion of damage in an action of tort means, not severance in point of time, but the absence of direct and natural causal sequence — the inability to trace in regard to the damage the ' propter hoc ' in a necessary or natural descent from the "v^Tongful act. As a matter of experience, 1 should say that the injury to health which forms the main groimd of damages in actions of negligence, either in cases of railway accidents or in running-down cases, frequently is proved, not as a concomitant of the occurrence, but as one of the sequelae." After a consideration of the case of Mitchell v. Rochester R. Co., 151 N. Y. 107 and of Spade v. Lynn & Boston Ry. Co., 168 Mass. 285, Kennedy, J., in Dulieuv. White & Sons, 2 K. B. 669, 681, says: " I should be sorry to adopt a rule which would bar all such claims on grounds of policy alone, and in order to prevent the possible success of unrighteous or groundless actions. Such a course involves the denial of redress in meritorious cases, and it necessarily implies a cer- tain degree of distrust, which I do not share, in the capacity of legal tribunals to get at the truth in this class of claim. My experience gives me no reason to suppose that a jury would really have more difficulty in weighing the like evi- dence as to the effects of nervous shock through fright, than Introduction. 15 in weighing the like evidence as to the effects of nervous shock through a railway collision or a carriage accident, where, as often happens, no palpable injury, or very slight palpable injury, has been occasioned at the time." Liability for fires negligently set. — "At common law every master of a house or chamber was bound to so keep his fire as to prevent it from occasioning injury to his neighbors. If a fire broke out in a house and burned an adjoining dwelling or did other damage, the master of the house in which the fire began was liable to make compensation. It was not neces- sary to prove negligence ; the law presumed it. (Year Book, 2 II. 4, pL 18; 1 Black. Com. 431.) " This law was first changed by statute 6 Anne, c. 31, which provided that : ' ISTo action shall be maintained against any person in whose house or chamber any fire shall acci- dentally begin, for their OAvn loss is sufficient punishment for their o^\^a or their servants' carelessness.' This statute was amended by 14 Geo. Ill, c. 78, which provided that: ' JSTo action shall be brought against any person in whose house, chamber or other building, or whose estate any fire shall accidentally begin, any law, usage or custom to the contrary notwithstanding.' The provisions of these statutes have been limited to accidental fires and not to those negli- gently set; under the statute, however, negligence will no longer be presumed, but must be shown by the party asserting it. {Filliter v. Phip-pard, 11 Adol. & Ellis [N. S.], 347.)" Hoffman v. King, 160 N. Y. 618, 622. In this class of cases, the New York Court of Appeals has limited the liability for fires negligently set to the damage to the property immediately adjoining, and has held that, if the fire spreads across the abutting property, upon lands of other proprietors, damage to the latter is too remote to impose liability. Such decision is, in fact, one of expedi- ency, and recourse is had for support to the much criticised, and, to some extent, overruled case of Ryan v. N. Y. C. B. R. Co., 35 N. Y. 210. 16 Inteoduction. " It is contended that liability ought not to be thus lim- ited; that a fire once set may run across the lines of an abutting owner and upon lands of other proprietors, causing damage. It must be conceded that such a result often hap- pens. It did in the case we have under consideration. But where is the line to l)e dra^vn ? Shall it be one mile, two miles or ten miles distant from the place of the original starting of the fire? \Yho is to specify the distance? It is suggested that it might be left to the jury; but a jury in one part of the state might answer one mile, and in another part it might determine the rule of liability to extend ten miles. The evidence upon this branch of the case is undis- puted, and in such cases the question as to what is proxi- mate cause is always for the court and not for the jury. " While we appreciate the force of the argument in favor of extending the rule of liability, and recognize the fact that a limitation of the rule will deprive many persons of a right of action for damages, we are convinced that the old rule is wiser and more just and that we ought not to depart from it. The limitation may be somewhat arbitrary, but it recog- nizes the principle that we should live and let live." Hoff- man V. King, 160 N. Y. 618, 628. Release of one of two joint tort feasors. — " The rule is, that a party receiving an injury from the wrongful acts of others, is entitled to but one satisfaction, and that an accord and satisfaction by, or a release or other discharge by the voluntary act of the party injured, of one, of two or more joint tort feasors, is a discharge of all." Barrett v. Third Ave. B. R. Co., 45 N. Y. 628, 635. " This rule is founded upon the theory that a party is entitled to but one satisfaction for the injury sustained by him." Gilbert v. Finch, 173 N. Y. 455, 462. V/hen release contains a reservation of a right to sue. — " In England the modem authorities appear to be quite uni- form upon the question. They are to the effect that, as Intkoduction". it between joint debtors and joint tort feasors, a release given to one releases all ; but if the instrument contains a reser- vation of a right to sue the other joint debtor or tort feasors, it is not a release, but in effect is a covenant not to sue the person released, and a covenant not to sue does not release a joint debtor or a joint tort feasor." And " The decisions of this court are in accord with the English rule and in har- mony with our statute in reference to joint debtors. (Code Civ.^ro., §§ 1942, 1944.)" G'llhert v. Finch, 173 K Y. 455, 463-4G6. No contribution among joint tort feasors. — '' In actions for joint torts, a joint liabiiitv exists, and a recovery may be enforced against any one of the defendants. The party paying such claim has no right to contribution from the other defendants, even although, by the payment, he has relieved them from their liability. {Miller v, Fenton, 11 Paige, 18. Peck v. Ellis, 2 John'. Ch. 131.) The principle on which these decisions are made is, that whenever the lia- bility arises ex delicio, there is no contribution." Andrews V. Murray, 33 Barb. 354, 356. Reason for the rule. — " The reason assigned in the books for denying contribution among trespassers is, that no right of action can be based on a violation of law, that is, where the act is known to be such or is apparently of that character. A guilty trespasser cannot be allowed to appeal to the law for an indemnity, for he has placed himself without its pale by contemning it, and must ask in vain for its interposition in his behalf." Bailey v. Bussing, 28 Conn. 455, 458. Limitation of the rule. — " If however he was innocent of an illegal j)urpose, ignorant of the nature of the act, which was apparently correct and proper, the rule will change with its reason, and he may then have an indemnity, or as the case may be a contribution, as a servant yielding obedience to the command of his master, or an agent to his principal, in what appears to be right, an assistant rendering aid to a 18 Introduction. sheriff in the execution of process, or common carriers, to whom is committed and who innocently carry away prop- erty which has been stolen from the owner. " Indemnity, or contribution to the full amount, is allow- able here, and it can be enforced by action if refused, whether the person seeking it has been subjected in case or assumpsit to the damages of which he complains. And since in many instances the person injured has an election to sue in case or assumpsit, it is not possible that the form of action in which the party seeking for indemnity or contribution has been subjected, should be the criterion of his right to call for it. One partner or one joint proprietor may do that which will subject all the rest in case or assumpsit, as the fact may be, but there may be a right to contribution not- withstanding, and in some cases, . . . , a full indem- nity may be justly demanded from the person doing the wrong, by the other partners whom he has involved in loss by his wrongful act. The form of action then is not the criterion. We must look further. We must look for per- sonal participation, personal culpability, personal knowledge. If we do not find these circumstances, but perceive only a liability in the eye of the law, growing out of a mere relation to the perpetrator of the wrong, tlie maxim of law that there is no contribution among wrong doers is not to be applied. Indeed w^e think this maxim too much broken in upon at this day to be called with propriety a rule of law, so many are the exceptions to it, as in the cases of master and servant, principal and agent, partners, joint operators, carriers and the like." Bailey v. Bussing, 28 Conn. 455, 459. The weakness of the above argument lies in measure in the failure to observe the distinction between right to indem- nity or damage and right to contribution. Three main heads of duty.— Every one is under obliga- tion, ( 1 ) To abstain from willful injury. ( 2 ) To respect property rights. (3) To act with reasonable and proper care. Inteoduction. 19 Liability in tort. — Generally speaking, natural capacity, not personal status, determines liability in tort. The law, however, does not hold persons of weak or immature mind to the same strict accountability, in all cases, as persons affected by no such disabilities. " In the law of contract various grounds of personal dis- ability have to be considered with some care. ... In the law of tort it is otherwise. Generally speaking, there is no limit to personal capacity either in becoming liable for civil injuries, or in the power of obtaining redress for them. It seems on principle that where a particular intention, knowledge, or state of mind in the person charged as a wrong-doer is an element, as it sometimes is, in constituting the alleged wrong, the age and mental capacity of the person may and should be taken into account (along with other rele- vant circumstances) in order to ascertain as a fact whether that intention, knowledge, or state of mind was present. But in every case it would be a question of fact, and no exception to the general rule would be established or pro- pounded." Pollock on Torts (7th ed.), 53. Infants. — " The general rule is, of course, that infants are liable for their torts. . . . But the rule is not an unlimited one, but is to be applied with due regard to the other equally well settled rule that, with certain exceptions, they are not liable on their contracts; and the dominant consideration is not that of liability for their torts but of protection from their contracts." Slayton v. Barry, 175 Mass. 513, 515. " Acts, however aggravated, which merely establish a breach of the contract on the part of an infant, manifestly are insufficient. The plaintiff cannot convert anything that arises out of a contract with an infant, into a tort, and then seek to enforce the contract, through the medium of an action ex delicto." Moore v. Eastman, 1 Hun, 578, 579. " The contract of an infant is not void, but is voidable at the election of the infant. If a horse is let to him to go a 20 Introduction, journey, there is an implied promise that he will make use of ordinary care and diligence to protect the animal from injury, and return him at the time agreed upon. A baro neglect to do either, "would not subject him or an adult to an action of trespass, the contract remaining in full force. But if the infant does any wilful and positive act, which amounts to an election on his part to disaffirm the contract, the owner is entitled to the immediate possession. If he wilfully and intentionally injures the animal, an action of trespass lies against him for the tort. If he should sell the horse, an action of trover would lie, and his infancy would not pro- tect him." Campbell v. Stakes, 2 Wend. 137, 143. " If an infant, by fraud, obtains property, with no inten- tion of paying, though it be under the pretense of a contract of purchase, the defrauded party may recover. lie does so on the ground that there w'as no real contract, and he dis- affirms the apparent contract. On the same ground those cases must stand Avhich have permitted a recovery for dam- ages when an infant, to obtain goods, has fraudulently pre- tended that he was of full age. " On the same principle, if a party has been induced to purchase property from an infant, by the infant's fraud and misrepresentation, it w^ould seem that he might, on discover- ing the fraud, disaffirm the contract, return, or offer to return the property, and thus put the infant in the position of a mere wrong-doer, unjustly keeping what he had fraudulently obtained. And it would seem that the infant w^ould then be liable in damages for tort. " But where, . . . , the aggrieved party retains the benefit of the contract, he does not disaffirm it. Plis action there rests on the ground that he has made a contract, and it is necessary for his recovery that he should show that a bind- ing contract has been made. Here, then, infancy becomes a defence. The defendant says there has been no binding con- tract ; no action, therefore, lies for fraud in respect to a con- tract which he could not make. The alleged contract is the substantive ground of, or the inducement to, the cause of Inteoduction. 21 action ; for, if there was no contract, then there could be no fraud in the making of it, and disproving the contract defeats the action." Hewitt v. Warren, 10 Hun, 560, 564. Child vs. parent for personal injuries. — " Though the old ideas regarding the need of severity and strict discipline have to a large extent passed away, the father may still not only restrain the liberty of his infant child, but he may, as reason shall seem to him to require, inflict corporal punish- ment for misbehavior. The limit to his authority is that uncertain limit that the correction must be moderate, and dictated by reason and not by passion. If he plainly exceeds all bounds, he is liable to criminal prosecution, but it seems never to have been held that the child might maintain a per- sonal action for his injury. In principle there seems to be no reason why such an action should not be sustained ; but the jDolicy of permitting actions that thus invite the child to contest the parent's authority is so questionable, that we may well doubt if the right will ever be sanctioned." Cooley on Torts (2d ed.), 197. Reason for the denial of a cause of action. — " So long as the parent is under obligation to care for, guide and con- trol, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be main- tained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand." Hewlett v. Ragsdale, 68 Miss. 703, 711. See also McKelveij v. McKelvey, 111 Tenn. 388. Lunatics. — " The general rule is that an insane person is just as responsible for his torts as a sane person, and the 22 Inteoduction. rule applies to all torts, except perhaps those in ^vhich malice and, therefore, intention, actual or imputed, is a necessary ingredient, like libel, slander and malicious prosecution. In all other torts intention is not an ingredient, and the actor is responsible, although he acted with a good and even laud- able purpose, without any malice. '^^^'" law looks to the per- son damaged by another and seek:, .o make him wdiole, with- out reference to the purpose or the condition, mental or physical, of the person causing the damage. The liability of a lunatic for his torts, in the opinions of judges, has been placed upon several grounds. The rule has been invoked that where one of two innocent persons must bear a loss, he must bear it whose act caused it. It is said that public policy requires the enforcement of tho liability that the relatives of a lunatic may be under inducement to restrain him, and that tort feasors may not simulate or pretend insanity to defend their wrongful acts causing damage to others. The lunatic must bear the loss occasioned by his torts, as he bears his other misfortunes, and the burden of such loss may not be put upon others." Williams v. Hays, 143 N. Y. 442, 446. Liability of infants and lunatics for negligence. — " There can be no distinction as to the liability of infants and luna- tics, between torts of non-feasance and of misfeasance — between acts of pure negligence and acts of trespass. The ground of the liability is the damage caused by the tort. That is just as great whether caused by negligence or tres- pass; the injured p-rty is just as much entitled to compen- sation in the one case as in the other, and the incompetent person must, upon principles of right and justice and of public policy, be just as much bound to make good the loss in the one case as the other ; and I have found no case which makes the distinction." Williams v. Hays, 143 N. Y. 442, 451. " There are few decisions on the subject of the liability of insane persons for torts by negligence, and the text-writers appear to be in great conflict. Some of the latter hold that Introduction. 23 insanity is no defense. 1 Slieannan and Redfield on jSTegli- gence, § 121; Cooley on Torts, 2d cd., 117. Others incline to the view that insanity should in some cases be a bar. 1 Beavan on JSTegligence, 2d ed., 52-55 ; Wharton on Negli- gence, § 88 ; 2 Jaggard on Torts, 872 ; Clerk and Lindsell on Torts, 11, 34. The true view seems to be expressed by Mr. Justice Holmes : ' If insanity of a pronounced type exists, manifestly incapacitating the sufferer from complying with the rule which he has broken, good sense would require it to be admitted as an excuse.' Holmes, The Common Law, 109." X Harvard Law Eev. 65. Married women. — At common law, a married woman was liable for her torts, but, as she was under disability to con- tract, she could not be held liable for wrongs growing out of the violation of a contract. In tort she had to sue and be sued jointly with her husband, who, under the fiction of the merger of legal identity, received the benefit of favorable judgments, and was liable for adverse ones. But in New York, " The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of his wife, and all sums that may be re- covered in such actions or special proceedings shall be the separate property of the wife. The husband is not a neces- sary or proper party to an action or special proceeding to recover damages to the person, estate or character of another on account of the wrongful ac( ■- of his wife committed with- out his instigation." Code Civ. Pro., § 450. " A married woman has a right of action for an injury to her person, property or character or for an injury arising out of the marital relation, as if unmarried. She is liable for her wrongful or tortious acts ; her husband is not liable for such acts unless they were done by his actual coercion or instigation ; and such coercion or instigation shall not be pre- sumed but must be proved." N. Y. Laws of 1896, ch. 272, §27. 24: Introduction. Right of married woman to recover for diminished earn- ing capacity. — 'The Domestic Relations Law (L. 1896, ch. 272), as amended by ch. 495 of the Laws of 1905, provides that, " A married woman shall have a cause of action in her own sole and separate right for all wages, salary, profits, compensation or other remuneration for which she may ren- der work, labor or services, or which may be derived from any trade, business or occupation carried on by her, and her husband shall have no right of action therefor unless she or he with her knowledge and consent has otherwise expressly agreed with the person obligated to pay such wages, salary, profits, compensation or other remuneration. In any action or proceeding in which a married woman or her husband shall seek to recover wages, salary, profits, compensation or other remuneration for which such married woman has ren- dered work, labor, or services or which was derived from any trade, business or occupation carried on by her or in which the loss of such wages, salary, profits, compensation or other remuneration shall be an item of damage claimed by a married woman or her husband, the presumption of law in all such cases shall be that such married woman is alone entitled thereto, unless the contrary expressly appears." This statute seemingly nullifies the decision in UransJcy v. Dry Docl, East Broadway & Battery R. B. Co., 118 K Y. 304, 308, wherein it was held that the presumption obtained in favor of the husband, and that " when she seeks to recover such damages, the complaint must contain an allegation that for some reason she is entitled to the fruits of her own labor." Husband or wife vs. the other for personal injuries.— *' ]\ray husband and Avife, in this State, sue each other in a civil action to recover damages for assault and bat- tery ? . . . " It is well settled that at common law neither could main- tain such an action against the other. Although courts of equity, for many purposes, treated husband and wife as per- sons of distinct legal existence, as the civil law treated them, iNTRODIJCTIOiSr. 25 capable of having separate estates, debts and interests, the common law inflexibly incorporated and consolidated the legal identity of the wife with that of her hnsband, and denied the right of the one to sue the other, technically on the ground of the legal fiction of unity. Eef erring to actions of this nature between husband and wife, Mr, Reeve (Dcm. Eel., 4th ed., p. 93) remarks: 'There is no doubt but that there are cases in which a battery by the husband of the wife may be justified on the ground of absolute necessity to repel an injury offered by her; and it is equally true that a battery of the husband by the wife may be justified on the same grounds. The nature of the connection between them is such, that no atrocity of conduct in this respect can give either a right to an action to recover damages.' " Public policy, however, quite as much as the convenient fiction of unity, has influenced . . . courts ... in their conclusions. As Mr. Schouler (Dom. Eel., 5th ed., § 52) says : ' This disability of the spouses to sue one another is not merely the technical one that, under the old procedure, husband and wife must join, but is founded on the principle that husband and wife are one. There is sound policy, more- over, in discouraging the pair from making of their matri- monial bickerings a cause of action for damages against one another.' . . . But, when it was sought to carry the rule of unity to its logical consequence, in Wenman v. Ash^ 13 C. B. 836, an action for libel, the defendant contending that there was no publication, because the sending a defama- tory letter to the plaintiff's wife was like sending it to the plaintiff himself, the court demurred, and said : ' In the eye of the law, no doubt, man and wife are for many purposes one; but that is a strong figurative expression, and cannot be dealt with as that all the consequences must follow which would result from its being literally true.' * * * *"* * * " . . . The learned judge in Fitzgerald v. Quann, 109 IsT. Y. 441, says : ' Statutes changing the common law must be strictly construed, and that the common law must be held 26 iNTKODUCTIOISr. no further abrogated than the clear import of the language used in the statutes absolutel,y requires. However much mod- ern judges might sometimes be inclined to doubt the beneficial results to be derived from an always strict adherence to the rule, . . . yet the rule itself is too securely and firmly established and grounded in our jurisprudence to be altered other than by legislative interference.' •jt * 4f * * * * " In 1882, a General Term of the Supreme Court, in Schultz V. SchuUz, 27 Hun, 2G, influenced by the conviction that an assault by the husband of the wife was ' in violation of the laws of God and man,' . . . recognized the right of the wife to sue her husband in such an action, Tho Court of Appeals (89 Is. Y. 644) reversed this decision, without opinion. ******* "The Domestic Kelations Law of 189G, chapter 272, has rej)ealed in toto the old, familiar married- woman's acts of 1848 (ch. 200), 1849 (ch. 375), 1860 (ch. 90), 1862 (ch. 172), and 1890 (ch. 51), bearing more particularly on the subject. '' Section 27 of the Domestic Relations Law provides that ' A married woman has a right of action for an injury to her person, property or character, or for an injury arising out of the marital relation, as if unmarried.' At first glance this provision may seem broad enough to permit a wife to sue her husband in an action for damages for personal injuries. To say that her rights in such cases are co-extensive with the rights of unmarried w^omen, is not to say that her rights, in cases of personal injury, include actions against her husband, because the rule of unity can in no wise enter in the case of unmarried women, and the husband's common-law right of exempiion is a factor to be considered. The rule of unity worked both ways. Can it be said that under the present law a husband has a right of action against his wife for per- sonal injuries? The law has certainly not removed his dis- ability in this regard, even should it be held that the wife's Introduction. 27 right of exemption has been removed under the broad state- ment, in the same section, that ' she is liable for her wrongful or tortious acts.' " The fact that personal injuries are gi'ouped with injuries to the wife's property can not justify the conclusion that her rights, in cases of personal injuries, are as broad and inclusive as are her rights in cases of injuries to her property. The powers and rights of a married woman, in respect to her prop- erty, are very particularly set forth in section 21 of the Domestic Relations Law, and the intention of the Legisla- ture to abrogate the rule of unity in such cases is clear and unmistakable: 'A married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts in respect thereto wdth any person, including her husband, and to carry on any business, trade or occupation, and to exercise all powers and enjoy all rights in respect thereto and in respect to her contracts, and be liable on such contracts, as if she were unmarried.' The Legislature evidently concluded that the expression any person was not broad enough to in- clude the husband. " With the earlier married-w^oman's acts now things of the past, and the codification of the leading provisions of those acts in the present Domestic Relations Law before us, it must still be concluded that the Legislature has not, up to the pres- ent time, abrogated the old common-law rule of unity so as to permit either party to the marital relation to sue the other in a civil action for personal injuries." Author's article on Assault and Battery, III. University Law Review, 67 and 108. " If such a cause of action exists, others do. If the wife can sue the husband, he can sue her. If an assault was actionable, then would slander and libel and other torts be. Instead of settling, a divorce would very much unsettle all matters between married parties. The private matters of the whole period of married existence might be exposed by suits. The statute of limitations could not cut off actions, because 28 Introduction. during coverture the statute would not run. With divorce? as common as they are now-a-days, there would be new har- vests of litigation. If such a precedent was permitted, we do not see why any wife surviving the husband could not maintain a suit against his executors or administrators for defamation, or cruelty, or assault, or deprivations that she may have wrongfully suffered at the hands of the husband ; and this would add a new method by which estates could be plundered. We believe the rule, which forbids all such oppor- tunities for lawsuits and speculations, to be wise and salutary and to stand on the solid foundations of the law." Abbott V. Abbott, 67 Me. 304. See also Abbe v. Abbe, 22 App. Div. 483. Corporations. — The old idea that an action ex delicto will not lie against a corporation, being an artificial person, is long since exploded. " It was formerly supposed that a corporation aggregate could not commit an actionable tort, and that no action sound- ing in tort would lie against such a corporation. This con- clusion rested upon the idea that a corporation is an artificial being, created by the sovereign, and endowed by the sovereign with, power to do certain things, and none other. The judges were accustomed to reason that a corporation can act only in the mode pointed out in its charter; and that wlien those who have its management or control, or who act for it in a given particular, step beyond the author- ization of the charter in doing an act, it is not the act of the corporation, but is their own individual act. ... As corporations multiplied, it was seen that intolerable wrongs would be done, if men could, by clothing themselves with the immimities of corporate organization, commit wrongs without being answerable for them, for which they would be answer- able if they had committed them in their natural capacities. The courts, therefore, while not denying or repudiating this fiction, and in the full face of its logical results, have been obliged to find their way out of the difficulty as best they Introduction. 29 could ; and the result is, that it is now well-settled, within certain limits, both as to private and municipal corporations, that whenever the agent of a corporation, proceeding within the general scope of its powers and of the powers delegated by it to him, commits a wrong, the corporation must pay dam- ages to the person injured, just as a natural person would be compelled to do under like circumstances." Thompson's Com. on the Law of Corp., § 6275. " A corporation is liable to the same extent and under the same circumstances as a natural person for the consequences of its wrongful acts, and will be held to respond in a civil action at the suit of an injured party for every grade and description of forcible, malicious or negligent tort or wrong which it commits, however foreig-n to its nature or beyond its granted powers the wrongful transaction or act may be." N. Y. & N. H. R. R. Co. v. Sclmyler, 34 K Y. 30, 49. May a corporation be held liable in an action for slander? y The rule of liability as enunciated in N. Y. & N. 11. R. R. Co. V. Schuyler (supra) certainly seems broad enough to in- clude such actions. Yet it is stated in Eichner v. Bowery Bank, 24 App. Div. 63, that a corporation cannot be made liable in an action to recover damages for slander, apparently because " The corporation itself could not talk." " A corporation can act only by or through its officers or agents, and as there can be no agency to slander, it follows that a corporation cannot be guilty of slander. It has not the capacity for committing that wrong. If an officer or an agent of a corporation is guilty of slander he is personally liable, and no liability results to the corporation." Townshend on Slander and Libel, § 265. " A corporation will not, it is submitted, be liable for any slander uttered by an officer, even though he be acting hon- estly for the benefit of the company and within the scope of his duties, unless it can be proved that the corporation expressly ordered and directed that officer to say those very words, for a slander is a voluntary tortious act of the speaker." Odgers on Libel and Slander, p. 368. 30 Intkoduction. Such conclusion savors of retrogression both in mode of reasoning and in manner of consideration, and rests too lit- erally upon the idea that a corporation is an intangible, ideal person. It is inconsistent with the rule laid down in N. Y. & N: II. R. E. Co. V. Schuyler, 34 N. Y. 30, 49, and also with the decision of the Court of Appeals in analogous cases. If a corporation cannot talk, neither can it write or strike, yet our Court of Appeals has held corporations liable in actions of libel, assault and battery, malicious prosecution, and conspiracy. " No good reason can be presented why a corporation should not be held liable in a proper case for malicious prosecution. Actions for libel, for assault and for wilful trespasses, in all of which the intent of the mind is an essential element, have been successfully prosecuted against corporations and the recovery upheld by the courts, and no distinction can be made between the principle which under- lies that class of actions and an action for malicious prose- cution. No action for malicious prosecution against a cor- poration has been reported in this State, but elsewhere the courts have sustained them. {Fenton v. ^Y^lson Seiving Machine Co., 9 Phil. 189 ; Goodspeed v. East Haddam Bank, 22 Conn. 535; Vaiice v. Erie Railroad Co., 3 Vroom, 334; Boogher v. Life Assn. of America, 42 Am. 413.) "We concur in the reasoning and decision of these cases." Morton v. Metropolitan Life Ins. Co., 84 Hun, 366, 367, and affirmed by the Court of Appeals (103 N. Y. 645) on the opinion below. See also Buffalo Luhricating Oil Co. v. Standard Oil Co., 106 K Y. 669. If a corporation can be held liable in an action for ma- licious prosecution, no good reason appears why it should be exempt from liability in an action for slander, because the nature of the WTong is not unlike malicious prosecution. The real offence in each case consists of damage to reputa- tion, and is effected by the same means, viz., speech. In each case the plaintiff claims injury to character by reason of improper charges or accusation, the one being defamation in court, and the other, in pais, and recovery for the one bars Introduction. 31 recovery for the other. " In an action for malicious prose- cution, the plaintiff is entitled to recover damages not only for his unlawful arrest and imprisonment, and for the ex- penses of his defence, but for the injury to his fame and character by reason of the false accusation. The latter indeed is, in many cases, the gravamen of the action. An accusation of crime, made under the forms of law, or on the pretence of bringing a guilty man to justice, is made in the most impos- ing and impressive manner, and may inflict a deeper injury upon the reputation of the party accused, than the same words uttered under any other circumstances. The most appropri- ate remedy for the calumny in such cases, is by the action for malicious prosecution. The injured party can not be entitled to two recoveries for the same cause, and a recovery in that form must, therefore, be a bar to a subsequent action of slander, for the same identical accusation." Sheldon v. Carpenter, 4 K Y. 578, 579. A corporation cannot do anything of itself. It must and always does act through its officers or agents, and its responsi- bility should be determined not by what the artificial body can or cannot itself do, but by what it has done through its agents, " acting or pretending to act about the business for which the organization was formed, and for which they were appointed agents." (Thompson's Com. on Law of Corp., § 6275). State or General Government.— " Even the State or Gen- eral Government may be guilty of individual wrongs ; for while each is a sovereignty, it is a corporation also, and as such capable of doing wrongful acts. The difficulty here is with the remedy, not with the right. 'No sovereignty is sub- ject to suits, except with its own consent. But either this consent is given by general law, or some tribunal is estab- lished with power to hear all just claims. Or if neither of these is done, the tort remains ; and it is always to be pre- sumed that the legislative authority will make the proper provision for redress when its attention is directed to the 32 INTRODUCTION. injury," Cooley on Torts (2d ed.), 141. See also Hill v. U. S^, 9 How. 386 ; Bigby v. U. S., 103 Fed. Rep. 597. Municipal corporations. — " There are trv'o kinds of duties which are imposed upon a municipal corporation : One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal indi- vidual ; the other is of that kind which arises, or is implied, from the use of political rights under the general laAV, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes ; the latter is public and is used for public purposes; (Lloyd v. The Mayor, 5 IST. Y. 374.) The former is not held by the municipality as one of the political divisions of the State ; the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involves, a municiiDality is like a private corporation, and is liable for a failure to use its power well, or for an injury caused by using it badly. But where the power is intrusted to it as one of the political divisions of the State, and is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser, nor for misuser by the public agents; (Eastman v. Meredith, 36 IST. H. 284.) Where the duties which are imposed upon municipalities are of the latter class, they are generally to be performed by officers who, though deriving their appoint- ment from the corporation itself, through the nomination of some of its executive agents, by a power devolved thereon as a convenient mode of exercising a function of government, are yet the oifieers, and hence the servants, of the public at large. They have powers and perform duties for the benefit of all the citizens, and are not under the control of the munici- pality whicli has no benefit in its corporate capacity from the performance thereof. They are not then the agents or servants of the municipal cori)oration, but are public officers, agents or servants of the public at large, and the corporation Intkoductio:n^. 33 is not responsible for their acts or oinissions, nor for the acts or omissions of the subordinates by them appointed ; (Fisher V. Boston, 104 Mass. 87.) And where a municipal corpora- tion elects or appoints an officer, in obedience to an act of the legislature, to perform a public service, in which the cor- poration has no private interest and from which it derives no special benefit or advantage in its corporate capacity, such officer cannot be regarded as a servant or agent of the munici- pality, for whose negligence or want of skill it can be held liable. It has appointed or elected him, in pursuance of a duty laid upon it by law, for the general welfare of the in- habitants or of the community. (Hafford v. Neiv Bedfo7'd, 16 Gray, 297.) He is the person selected by it as the author- ity empowered by law to make selections ; but when selected and its j)ower exhausted he is not its agent, he is the agent of the public for whom and for whose purposes he was selected." Maxmilian v. Mayor, 02 K Y. 160, 164. " It would seem that, in so far as municipal corporations of any class, and however incorporated, exercise powers con- ferred on them for purposes essentially public — purposes pertaining to the administration of general laws made to en- force the general policy of the state, — they should be deemed agencies of the state, and not subject to be sued for any act or omission occurring while in the exercise of such power, unless, by statute, the action be given ; that, in reference' to such matters, they should stand as does sovereignty, whose agents they are, subject to be sued only when the state, by statute, declares they may be. * * * -x- * * * " In so far, however, as they exercise powers not of this character, voluntarily assumed — jDowers intended for the private advantage and benefit of the locality and its inhabit- ants, — there seems to be no sufficient reason why they should be relieved from that liability to suit and measure of actual damage to which an individual or private corporation exercising the same powers for a purpose essentially private would be liable." City of Galveston v. Posnainsky, 62 Texas, 118, 127. 3 34 . Introdlctiois^ " The corporation of the Citj of Xew York possesses two kinds of jiowers, one governmental and public, and to the extent thej are held and exercised, is clothed with sover- eignty — the other private, and to the extent they are held and exercised, is a legal individual. The former are given and used for public purposes, the latter for private purposes. While in the exercise of the former, the corporation is a municipal government, and while in the exercise of the latter, is a corporate, legal individual. " The distinction between these two classes of powers is obvious, and has been frequently recognized and established in our courts. (Wilson v. Tlie Mayor, etc., of New YorJc, 1 Denio, 595 ; Bailey v. Same, 3 Hill R. 531 ; S. C. opin. of Hand Senator-, 2 Denio, 450 ; Rochester White Lead Co. v. The City of Rochester, 3 Comst. R. 463.) " Although the difference between the two kinds of powers is plain and marked, yet as they approximate each other, it is oftentimes difficult to ascertain the exact line of distinction. "When that line is ascertained, it is not difficult to determine the rights of parties, for the rules of law are clear and explicit which establish the rights, immunities and liabilities of the appellants when in the exercise of each class of powers. All that can be done probably with safety is, to determine, as each case arises, under which class it falls." Lloyd v. The Mayor, etc., of New York, 5 K Y. 369, 374. Charitable corporations. — Are charitable corporations liable for the conduct of their servants in the selection of whom they have exercised proper care ? The decisions, gen- erally and for various reasons, seem to allow to this class )f corporations a peculiar exemption from liability. Some, determining that the corporation is exercising governmental powers, deny liability on the ground that the government is })rincipal or master and that the rule of respondeat superior in such case has no application. {City of Richmond v. Long's Adm'rs, 17 Grat. 375 ; Benton v. Trustees of Boston City Hospital, 140 Mass. 13 ; Fire Insurance Patrol v. Boyd, Intkoduction. 35 120 Pa. St. 624.) Others exempt from liability on the additional ground tliat it is unconscionable to divert trust funds. " A public charity, whether incorporated or not, is but a trustee, and is bound to apply its funds in furtherance of the charity and not otherwise. This doctrine is hoary with antiquity and prevails alike in this country and in England, where it originated as early as the reign of Edward v., and it was announced in the Year Book of that period. " . . . Not only is a trustee for a public or private use not permitted to misapply the trust funds committed to his care, but if he convert them to his owti use the law pimishes him as a thief. IIow much better than a thief would be the law itself, were it to apply the trust funds contributed for a charitable object, to pay for injuries resulting from the torts or negligence of the trustee ? " Fire his. Patrol v. Boyd, 120 Pa. St. 624, 647; McDonald v. General Hospital, 120 Mass. 432. The majority, however, place the exemption from liability squarely on the convenient ground of public policy. " On the whole, substantial justice is best served by making a master responsible for the injuries caused by his servant acting in his service, when set to work by him to prosecute his private ends, with the expectation of deriving from that work private benefit. This has at times proved a liard rule, but it rests upon a public policy too firmly settled to be questioned. " We are now asked to apply this rule, for the first time, to a class of masters distinct from all others, and who do not and cannot come within the reason of the rule. In other words, we are asked to extend the rule and to declare a new public policy and say: On the whole substantial justice is best served by making the owners of a public charity, involv- ing no private profit, responsible, not only for their own wrongful negligence, but also for the wrongful negligence of the servants they employ only for a public use and a public benefit. We think the law does not justify such an exten- sion of the rule of respondeat superior. It is perhaps im- 36- Intkoduction. material whether ^\e say the public policy which supports the doctrine of respondeat superior does not justify such ex- tension of the rule ; or say that the public policy which en- courages enterprises for charitable purposes requires an exemption from the operation of a rule based on legal fiction, and which, as applied to the owners of such enterprises, is clearly opposed to substantial justice. It is enough that a charitable corporation like the defendant — whatever may be the principle that controls its liability for corporate neg- lect in the jDerformance of a corporate duty — is not liable, on grounds of public policy, for injuries caused by personal wrongful neglect in the performance of his duty by a servant whom it has selected with due care ; but in such case the servant is alone responsible for his 0T^•n wrong." Uearns v. Wcderhury Hospital, QQ Conn. 98; Joel v. Woman's Hos- pital, 89 Hun, 73. In an article entitled Liability of Charity Hospital for Xegligence of its Employees, The Xcw York Law Journal, in its issue of November 28, 1900, says, " that more injury in the long run would be apt to result from entirely exempt- ing charitable corporations from liability for the negligence of their servants than from holding them to the ordinary rule of respo7ideat superior. Some of the cases have drawn an arbitrary line, making ' charity ' hospitals responsible for negligence in the original selection of their employees, but exonerating them from liability beyond that point. Such dis- tinction substantially amounts to judicial legislation and we cannot approve of its practical policy. The liability of a private physician, if he actually undertake a case, is the same, as far as negligence is concerned, whether the patient be treated charitably or for compensation." And in Glavin V. Rhode Island Hospital, 12 R. I. 411, tlie court says: " The public is doubtless interested in the maintenance of a great public charity, such as the Rhode Island Hospital is; but it also has an interest in obliging every person and every corjDoration which undertakes the performance of a duty to perform it carefully, and to that extent therefore it has an Introduction. 37 interest against exempting any sucli person and any such corporation from liability for its negligences. The court cannot undertake to say that the former interest is so supreme that the latter must be sacrificed to it. "Whether it shall be or not is not a question for the court, but for the legislature." Such exemption may, perhaps, be reasonable in those cases "where the person injured is at the time of the injury the recipient of the charities of the corporation, but quite un- reasonable in those cases where the person injured is at the time of the injury not the recipient of the charities of the corporation. Yet it was held in Benton v. Trustees, 140 Mass. 13, that an action for damages for personal injuries could not be maintained by a person who had entered the hospital on business, and was injured therein by reason of the unsafe condition of the stairs, although the unsafe con- dition was caused by the negligence of the superintendent of the hospital. Actio personalis moritur cum persona, i. e., a personal action dies with the person. " Such [civil] actions were primarily divided into two classes, distinguished as actions ex contractu and ex delicto. The actions known as detinue^ tresjoass, trespass on the case, and replevin were those used in causes of action arising from torts, and were described as actions ex delicto. Trespass on the case was the appropriate form of remedy for all injuries to person or property which did not fall within the compass of the other forms of action. (3 Stephens' Com. 449.) At common law, originally, all actions arising ex delicto died with the person by whom or to w^hom the WTong was done. Thus, when the action w^as founded on any maKeasance, or misfeasance, was a tort, or arose ex delicto, such as trespass for taking goods, etc., trover, false imprisomnent, assault and battery, slander, deceit, diverting a water-course, obstructing lights, escape, and many other cases of the like kind, where the declaration imputes a tort done either to the person or lA 38 iNTBODUCTIOISr. property of anotlier, and the ])lea must be ' not guilty/ the rule was 'actio peisonalis moriiur cum persona.' (1 Wms. on Exrs. G68.)" Ilegcrich v. Keddie, 99 X. Y. 258, 259. The rule does not extend to civil death. — " It [Actio per- sonalis moriiur cum persona] has h)ng Ijeen in force both in England and this country, and in this state has received legislative approval in so far as causes of action for libel, slander and assault and battery are concerned, but our decisions have not extended the rule to the ci\-il death of either persons or corporations. jSTor has the language of our statute which authorizes the continuance of certain actions for moneys against the executors and administrators of wrongdoers, but excepts actions for libel, slander, assault and battery and false imprisonment, been held to include the civil death of either individuals or corporations, and it is suffi- cient for our present purpose to say that such an intent on the part of the legislature cannot be spelled out of the lan- guage employed by it." Shayne v. Evening Post Publishing Co., IGS K Y. 70, 78. Statutory modifications of the rule : in England. — " The <^^-y first amendment was made as long ago as 1330, by the statute 4 Ed. III., c. 7, of which the English version runs thus : ^'' Item, whereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; it is enacted that the executors in such cases sh i ^11 hnve an action af^-ainst the treapnsaers if^ recover damag es in like Tnnn- mi as they, whose executors they be, should have had if they were in life. " Then by 3 & 4 Will. IV., c. 42 (A. D. 1833) actionable jjl.llirio . s to the real pstntfi . of any person committed within six calendar months before his death may be sued upon by Introduction. 39 his personal representatives, for the benefit of his personal estate, within one year after his death: and a man's estate can be made liable, through his personal representatives, for wrongs done by him within six calendar months before his death ' to another in respect of his property, real or per- sonal.' In this latter case the action must be brought against the wrongdoer's representatives within six months after they have entered on their office. " IvTothing in these statutes affects the case of a personal injury causing death, for which according to the maxim there is no remedy at all. " Railway accidents, towards the middle of the present century, brought the hardship of the common law rule into prominence. A man who was maimed or reduced to im- becility by the negligence of a railway company's servants might recover heavy damages. If he died of his injuries, or was killed on the spot, his family might be ruined, but there was no remedy. This state of things brought about the passing of Lord Campbell's Act (9 & 10 Vict. c. 93, A. D. 1846), ... It confers a right of action on the personal representatives of a person whose death has been caused by a wrongful act, neglect, or default such that if death had not ensued that person might have maintained an action ; but the right conferred is not for the benefit of the personal estate, but ' for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused.' " By an amending Act of 1864, 27 & 28 Vict. c. 95, if there is no personal representative . . . , or if no action is brought by personal representatives within six months, all or any of the persons for whose benefit the right of action is given by Lord Campbell's Act may sue in their own names." Pollock on Torts (7th ed.), 64-67. Statutory modifications of the rule: in New York. — " Under the clause of the Constitution making the rules of the conmion law the law of the State, it must be held that 40 Introductiox. these rules still determine tlio s\irvivaLility of actions for torts, except where the law has been sjxicially modified or changed bj statute." Ilegerich v. Keddie, 99 N. Y. 258, 260. On April 7, 1801, the Legislature enacted, " That execu- tors and administrators shall have actions of trespass for tak- ing and carrying away the goods of their testator or intestate in his lifetime, and that any person, his executors or administrators shall have the like actions of trespass against the executors or administrators of any testator or intestate, who in his lifetime shall have wasted, destroyed, taken or carried away or converted to his own use the goods or chattels of any such person, and shall have the like process, judgment and execution as in other actions against executors and administrators." Laws of 1801, ch. 174, Referring to the above act, Kent, Ch. J., says : " The statute . . . gives to executors, an action of trespass [tZe honis asportatis'], for taking and carrying away the goods of their testator, in his lifetime. This statute was borrowed from 4 Ed. III. c. 7, which had made a similar provision ; and by the equity and liberal construction of that statute, it has been extended to almost every injury, done to the per- sonal estate of the testator before his death. (Toller's Law of Ex. 121, 345.) It applies to wasting and destroying, as well as to taking and carrying away the goods of the testator. Our act goes further, and makes this conclusion inevitable. It gives to executors an action of trespass against the execu- tors and administrators of any person, who in his lifetime had wasted, destroyed, taken or carried away the personal property of their testator." Snider v. Croy, 2 Johns. Rep. 227, 229. While chapter 174 of the Laws of 1801 was probably re- pealed by the act of 1813, the portion of that act, above quoted, was re-enacted verbatim in the Revised Laws, passed April 13, 1813, pursuant to an act entitled, "An Act for Publishing the Laws of this State." See Vol. I., p. 311, of the Revised Laws of Xew York. 1. Introduction. 41 "The Revised Laws (Vol. 1, p. 311) . . . enlarged the scope of the statute of 4th Edward III, and provided for actions by and against executors and administrators for prop- erty taken and converted by the testator or intestate during his lifetime. Under this condition of the law the provisions of the Revised Statutes [2 R. S. 447, §§ 1-2] were enacted in 1828, ..." Hegerich v. Keddie, 99 K Y. 258, 261. " For wrongs done to the property, rights or intere sts_of j{j^ ^- another, for which an actio n miglit he ■maintainprl fl^ln.at-tliP ^f*^^ ^J^ wrong-doej *, such action ma y b^ brnngVit by tli a p o rcmi ,^^ i^ jy, injured, or after his death, by his executors o r_aiiininisti:ata£3^ ,ot-^^ «j2^ '^"'''^ a gainst such wrong-doer, and af ter his death ^agaiiist-hie ^ K^ executors or administrators^ in the same manner and with ' ^^ the like effect in all respects, as actions founded upon con- *'"*^'"^ tracts. '\>^<^*^ ^^-^y**" *^ " But the preceding section shall not extend to a ctions for ^^^j^ « slander, for libel, or to actions of assault a nd battery, or false -^auJi-i . i mprisonment, nor to actions o n the case for injuries to the \^ ^^ jl person of the plaintiff, or to the person of the testator or • __ intestate of any p yppntnr i V. The Bush Co., Lid, 182 N. Y. 303, it is held that an action to recover damages for negligently causing death, brought under section 1902 of the Code of Civil Procedure, may be maintained, notwithstanding the fact that tlie beneficiaries are all non-resident aliens. *' Compensation for the pecuniary injuries." — " I do not understand from the pln-aseology of the statute that an ex- tremely nice and contracted interpretation should be put upon the term ' pecuniary iDJuries.' A liberal scope was design- edly left for the action of the jury. They are to give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death. They are not tied down to any precise rule. The matter is to be submitted to their sound judgment and sense of justice. They must be satisfied that pecuniary in- juries resulted. If so satisfied, they are at liberty to allow them from whatever source they actually proceeded which could produce them. If they are satisfied from the history of the family, or the intrinsic probabilities of the case, that they were sustained by the loss of bodily care, or intellectual culture, or moral training, . . . , they are at liberty to allow for it. The statute has set no bounds to the sources Introduction^. 49 of these pecuniary injuries. If the rule is a dangerous one, and liable to abuse, the legislature and not tho courts must apply the corrective." Tilley v. Hudson River Railroad Co., 29 K Y. 252, 286. " The statute implies from the death of the person negli- gently killed damages sustained by the next of kin. {Quin V. Moore, 15 IST. Y. 432.) Recognizing the generally pro- spective and indefinite character of those damages, and the impossibility of a basis for accurate estimate, it allows a jury- to give what they shall deem a just compensation, . The jury is neither omnipotent, nor left Avholly to conjecture. They are required to judge, and not merely to guess, and, therefore, such basis for their judgment as the facts naturally capable of proof can give should always be present, and is rarely, if ever, absent. The pecuniary loss in any such cass may be composed of very different elements. It may consist of special damages, that is of an actual, definite loss, capable of proof, and of measurement with approximate accuracy; and also of prospective and general damages, incapable of precise and accurate estimate because of the contingencies of the imknown future. An example of such special and actual damages occurred in the case of Murphy v. N. Y. Central, etc., R. R. Co. (88 K Y. 446), where we allowed as one element of the total loss the funeral expenses of the deceased. . . . But the value of a human life is a different matter. The damages to the next of kin in that respect are necessarily indefinite, prospective, and contingent. They cannot be proved with even an approach to accuracy, and yet they are to be estimated and awarded, for the statute has so com- manded. But even in such case there is and there- must be some basis in the proof for the estimate, . . . Human lives are not all of the same value to the survivors. The age and sex, the general health and intelligence of the person killed, the situation and condition of the survivors and their relation to the deceased ; these elements furnish some basia for judgment. That it is slender and inadequate is true (Tilley v. Hudson Riv. R. R. Co., supra) ; but it is all that 4 50 Introduction. is possible, and while that should be given {Mclntyre v. N. Y. Cent. R. R. Co., 37 K Y. 289), more can not be required." Houghkirk v. President, etc., D. & H. C. Co., 92 K Y. 219, 224. Funeral expenses. — " Under a similar statute in England it has been held that funeral expenses cannot be recovered. {Dalton V. Soutli-eastern Ry. Co., 4 C. B. [N. S.] 296; Boulter v. \Yel>ster, 13 Weekly Rep. 289.) But in this coun- try, so far as I can discover, it has been uniformly held that the plaintiff can recover such expenses if the law imposes upon the relatives for Avhose benefit the suit is brought the obligation to bear them. {Penn. R. R. Co. v. Bantom, 54 Penn. St. 495 ; Oiven v. Brockschmidt, 54 Mo. 285 ; Roeder V. Ormshy, 22 How. Pr. 270.)" Murphy v. N. Y. Cent., etc., R. R. Co., 88 N. Y. 445, 446. See § 1903 Code of Civil Procedure. Recovery not limited to minority. — " The jury were not bound, in estimating the compensation to be made for the death of the child, to confine their considerations to her minority. It is true that the plaintiff, as father, could com- mand her services only during her minority. But in certain contingencies she might, after her majority, owe him the duty of support, which could, by legal proceedings, be en- forced; and after that event she might, in many ways, be of great pecuniary benefit to him. In estimating the pecuniary value of this child to her next of kin, the jury could take into consideration all the probable, or even pos- sible, benefits which might result to them from her life, modi- fied, as in their estimation they should be, by all the chances of failure and misfortune. There is no rule but their own good sense for their guidance, and they were not in this case bound to assume that no pecuniary benefits would come to the next of kin from this child after her majority." Birkett V. Knickerbocker Ice Co., 110 K Y. 504, 508. This being a purely statutory right of action, conferred upon the legal representative of the decedent in favor of cer- Intkoduction. 51 tain specified beneficiaries, and not an action to recover for loss of services, to limit recovery to minority would seem to be unreasonable and improper. The cause of action abates with the death of the wrong- doer. — ■ ■• The cause of action here provided for does not pur- port to be in any respect a derivative one, but is an original right conferred by the statute upon representatives for the benefit of beneficiaries, but founded upon a wrong already actionable by existing law in favor of the party injured, for his damages. " . . . The statute, although creating a new cause of action, and passed for the express purpose of changing the rule of the common law in respect to the survivability of actions, and conferring a right upon representatives which they did not before possess, does not undertake, either ex- pressly or impliedly, to impair the equally stringent rule which precluded the maintenance of such actions against the representatives of the offending party. " The plain implication from its language would, there- fore, seem to be at war with the idea that the legislature intended to create a cause of action enforceable against, as well as by representatives. The cause of action thereby given is not to the estate of the deceased person, but to his or her representatives as trustees, not for purposes of general ad- ministration, but for the exclusive use of specified bene- ficiaries. " The wrong defined indicates no injury to the estate of the person killed, and cannot either logically or legally be said to affect any property rights of such person, unless it can be maintained that a person has a property right in his own existence. . . . Whatever claim a wife or children have at law upon the husband and father for support perishes with the life of such person, and thereafter their claims upon his estate are governed by statutory rules. * * * *^* * ** * " The complaint in the present action describes a cause of action arising out of the death alone, and suggests no injury 52 IjVfTKODUCTIOiS'. to the estate or property of tlie deceased. Such a cause of action is abated by the death of the wTong-doer." Heyerich V. Keddie, 99 N. Y. 258, 2 07-270. Survival of action after death of sole administrator and next of kin. — iu the case of Meekin v. Brooklyn Heights B. R. Co., 1 64 ]Sr. Y. 145, the court held that an action under section 1902 of the Code of Civil Procedure survives the death of the sole administrator and next of kin, because the right of action is for wrong done to the property, rights or interests of the beneficiaries, saying, at p. 151, ^' In Hegerich V. Keddie (99 X. Y, 258) it Avas held that the cause of action for damages from negligence resulting in death abates upon the death of the wrong-doer, and that an action cannot be maintained against his representatives. This is a necessary result from the fact that the Code modifies the Eevised Stat- utes and the common law only as to the personal representa- tives of the person injured, and not as to those of the person who inflicted the injury." And again, at p. 153, " Thus it appears, both from the statute and the authorities, that the damages awarded for the negligent act are such as result to the property rights of the person or persons for whose benefit the cause of action was created. Nothing is allowed for a personal injury to the personal representatives or to the bene- ficiaries, but the allowance is simply for injuries to the estate of the latter caused by the wrongful act. The statute, as it has been held, is not simply remedial, but creates a new cause of action in favor of the personal representatives of the deceased, which is wholly distinct from and not a revivor of the cause of action, which, if he had survived, he would have had for his bodily injury." Action for personal injury does not abate after verdict. — " After verdict, report or decision in an action to recover damages for a personal injury, the action does not abate by the death of a party, but the subsequent proceedings are the same as in a case where the cause of action survives. And Ij^^TriODUCTION. 53 in. case said verdict, report or decision is reversed upon ques- tions of law only, said action does not abate by the death of the party against whom the same was rendered." § 764, Code Civ. Pro. Principal and agent. — " The principal is liable in a civil suit, to third persons, for the frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances and misfeasances of his agent in the course of his employ- ment, although the principal did not authorize, justify, or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved of them. (Story on Agency, § 452, p. 563.) " This rule of liability is not based upon any presumed authority in the agent to do the acts, but upon the ground of public policy, and that it is more reasonable, where one of two innocent persons must suffer from the wrongful act of a third person, that the principal, who has placed the agent in the position of trust and confidence should suffer, than a stranger. {Hern v. Nichols, 1 Salk. E. 289.) ... All that is necessary to render the principal liable for the mal- feasance or torts of the agent is that the tort must be com- mitted in the course of the agency (Story on Agency, § 456) ; not that the agency authorized it, or as it is expressed by Paley, that the employment afforded the means of com- mitting the injury. (Dunlop and Paley on Agency, 306.)" Lee V. The Village of Sandy Hill 40 I^. Y. 442, 448. See also Higgins v. The Watervliet Turnpilce Co., 46 ]^. Y. 23, 27, and Fifth Avenue Banh v. Forty-second St. Pi. Co., 137 K Y. 231, 241. Master and servant. — By the rule of natural capacity, every one is liable for his wrongful acts ; that at the time he was acting for another, does not excuse his individual responsibility; but the person for whom he was acting may also be liable. 54 Intkodl'ctiojn'. The following are common-law rules and principles appli- cable to tlie relation of master and servant, and their dutie^i and liabilities. Consideration of statutes in favor of the employee or imposing additional duties on the employer, is not herein accorded. Master and servant: the relation. — " The relation of mas- ter and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, ' not only Avhat shall be done, but how it shall be done.' " Singer Manufacturing Co. v. Balin, 132 U. S. 518, 523. Master's liability to third persons. — The general rule is, that a master is liable to third persons injured through the wrongful acts of his servant while acting within the scope of his emploATiient. For torts committed outside the line of his employment, the servant alone is responsible. " It is sufficient to make the master responsible civiliter, if the wrongful act of the servant was committed in the busi- ness 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." Higgins v. The Watervliet Turnpike Co., 46 N. Y. 23, 27. Master as a common carrier. — A master is as liable for the wilful, as for the negligent act of his servant, provided the wrongful act was committed in the business of the master and within the scope of the employment. In the case of a common carrier a seemingly greater responsibility to a pas- senger attaches, but this is, after all, only because the ser- vant or agent engaged in executing the contract of carriage cannot, during the transportation, act without the scope of his employment. "A common carrier is bound, so far as practicable, to protect his passengers, while being conveyed, from violence committed by strangers and co-passengers, and he undertakes absolutely to protect them against the miscon- Introduction. 55 duct of its own servants engaged in executing the contract." Stewart v. Brooklyn & Crosstoivn E. E. Co., 90 E". Y. 588, 691. Such responsibility, however, is assumed only towards passengers, not strangers, and applies only to such servants as are engaged in the execution of the contract of carriage. Provocation by passenger. — " It is undoubtedly true that a common carrier of passengers undertakes to protect passen- gers from the negligence or wilful misconduct of its servants •while engaged in performing a duty which the carrier owed to the passengers. But it has not as yet been held that, wdiere a passenger by his owm misbehavior, while being transported, has provoked a personal encounter between himself and one of the employees of the carrier, that the carrier is liable for the results. It may be true that the use of the abusive lan- guage to the driver did not justify the assault, as far as the driver is concerned, in the eyes of the criminal law; but there is no reason for holding that where a passenger, by his own improper and insulting behavior, while a passenger upon the road of the railway company, brings upon himself an assault, the carrier should be responsible. Carriers are to be held to the strictest responsibility. They must treat their passengers respectfully and protect them so far as they reasonably can from injury or insult on the part of the employees. But there is also a responsibility on the part of the passenger. He is bound to conduct himself in an orderly and decent manner, and if he forgets his obligations, and, by his indecent behavior and by the use of language which is morally certain to end in a personal encounter, he succeeds in his efforts to bring about such a result, certainly the car- rier cannot be bound to protect the passenger under such cir- cumstances from the natural and probable results of his 0"wn act." Scott V. Central Park, etc., E. E. Co., 53 Hun, 414, 415. In Rosters v. Brooklyn, B. & ^Y. E. E. E. Co., 10 Misc. 18 (affirmed without opinion in 151 N. Y. 630), the plaintiff sued to recover damages for an assault committed upon him, 56 I]vrTEODucTioisr. while a passenger on defendant's car by the conductor. The eoitductor testified that the plaintiff used abusive language, and struck at him with an iron wrench, and that he then struck plaintiff with a club. \"erdict for plaintiff. The Gen- eral Terrn of the City Court of Brooklyn said (p. 19) : " The only question for our consideration is whether the court erred in refusing to charge, at defendant's request, that ' if the plaintiff commenced the altercation, and, in the course of it, addressed indecent and insulting language to the conductor, and language such as was calculated or likely to produce an assault, the verdict must be for defendant.' Assuming that this is a sound statement of law, under the authority of the prevailing opinion in Scott v. C. P., etc., R. Co., 53 Hun, 414, it seems to us that the court charged so much thereof as was applicable to the facts in this case. . . . The court charged that if the plaintiff assaulted or threatened to assault the conductor, the latter was justified in assaulting plaintiff." Verdict not disturbed. Relation must exist at time of commission of wrongful act. — " The doctrine of respondeat superior applies only when the relation of master and sei-vant is shown to exist between the wrong-doer and the person sought to be charged for the result of the wrong, at the time and in respect to tlie very transaction out of which the injury arose. The fact that the party to whose wrongful or negligent act an injury may be traced was, at the time, in the general employment and pay of another person, does not necessarily make the latter the master and responsible for his acts. The master is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct. Servants who are employed and paid by one person may, nevertheless, be ad hoc the servants of another in a particular transaction, and that, too, when their general employer is interested in the work." Higgins v. The Western Union Telegraph Co., 156 K Y. 75, 78. Introduction. 5'7 Reasons for the master's liability. — ''This rule is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to in- jure another; and if he does not, and another thereby sus- tains damage, he shall answ^er for it." Farwell v. Boston & Worcester E. R. Co., 4 Met. 49, 55. " In Blahe v. Ferris (1 Scdden, 48), it Avas held that the liability of any one, other than the party actually guilty of any wrongful act, proceeds on the maxim, ' Qui facit per alium facit per se/ The party employing has the selection of the party employed, and it is reasonable that he who has made choice of an unskilful or careless person to execute his orders, should be responsible for an injury resulting from the want of skill or want of care of the person employed ; but neither the principle of the rule, nor the rule itself, can apply to a case w^here the party sought to be charged does not stand in the relation of master or principal to the party by whose negligent act the injury has been occasioned." Pach v. The Mayor, etc., of New Yorh, 8 K Y. 222, 225. " This rule is founded upon public policy and convenience. Every person is bound to use due care in the conduct of his business. If the business is committed to an agent or servant, the obligation is not changed," Higgins v. The Watervliet Turnpike Co., 46 K Y. 23, 27. " The master is liable only for the authorized acts of the servant, and the root of his liability for the servant's acts is his consent, express or implied, thereto. . . . It is not the test of the master's liability for the wrongful act of the servant, from which injury to a third person has resulted, that he expressly authorized the particular act and conduct which occasioned it. . . . " It is, in general, sufficient to make the master responsible that he gave to the servant an authority, or made it his duty to act in respect to the business in w^hich he w^as engaged when the wrong was committed, and that the act complained of was done in the course of his employment. The master in that 58 INTRODUCTION. case will be deemed to have consented to and authorized the act of the servant, and he will not be excused from liability, although the servant abused his authority, or was reckless in the performance of his duty, or inflicted an unnecessary in- jury in executing his master's orders." Bounds v. Del., Lack. & ^Ycst. B. B. Co., 64 N. Y. 129, 133. '^ Llackstone (T., 417) is short in his statement, and has no other reason to give than the fiction of an ' implied com- mand.' It is currently said, Bespondeai superior; which is a dogmatic statement, not an explanation. It is also said, Qui facit per alium facit per se; but this is in terms applicable only to authorized acts, not to acts that, although done by the agent or servant ' in the course of the service,' are spe- cifically unauthorized or even forbidden. Again, it is said that a master ought to be careful in choosing fit servants; but if this were the reason, a master could discharge himself by showing that the servant for Avhose wrong he is sued was chosen by him -v^ath due care, and was in fact generally well conducted and competent: which is certainly not the law." Pollock on Torts (7th ed.), 76. Independent contractor. — " The rule that where the re- lation of master and servant or principal and agent does not exist, but an injury results from negligence in the perform- ance of work by a contractor, the party with whom he con- tracts is not responsible for his negligence or that of his ser- vants, is well established by the authorities in this State. (Blake V. Ferris, 5 Is^. Y. 48 ; Pack v. MaTjor, etc., 8 N. Y. 222; Kelhj v. Mayor, etc., 11 K Y. 432; McCafferty v. 8. D. & P. M. B. B. Co., 61 N. Y. 178 ; King v. N. Y. C. & II. B. B. B. Co., 66 N. Y. 181 ; Town of Pierrepont v. Loveless, 72 N. Y 211 ; Ferguson v. Huhhell, 97 N. Y. 507 ; Herrington v. Village of Lansinghurgh, 110 N. Y. 145; Boemer v. Striker, 142 N. Y. 134.) " There are certain exceptional cases where a person em- ploying a contractor is liable, which, briefly stated, are: Ij^TKODUCTIOiSr. 59- "Where the employer personally interferes with the work, and the acts performed by him occasion the injury ; where the thing contracted to be done is unlawful ; where the acts per- formed create a public nuisance ; and where an employer is bound by a statute to do a thing efficiently and an injury results from its inefficiency." Berg v. Parsons, 156 X. Y. 109, 112 and 115. Test of independent contractor. — " Independence of con- trol in employing workmen and in selecting the means of doing tiie work is the test usually applied by courts to deter- mine whether the contractor is independent or not." Upping- ton V. City of Neiv Yorh, 165 N". Y. 222, 233. Master's duty to servant. — ''The general principles . . . have been so frequently discussed in recent cases that any- thing more than a brief summary would be unprofitable. Thus it has been held that a master owes the duty to his servant of furnishing adequate and suitable tools and imple- ments for his use, a safe and proper place in which to prose- cute his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor and assist in the performance of his duties. {Bartonsliill Coal Co. V. Beid, 3 Macq. 275; Laning v. N. Y. C. B. B. Co., 49 X. Y. 522; Bnjdon v. Stewart, 2 Macq. 34; Booth v. B. c(- A. B. B. Co., 73 X. Y. 40.) That ' no duty belonging to the master to perform, for the safety and protection of his servants can be delegated to any servant of any grade so as to exonerate the master from responsibility to a servant who has been injured by its non-performance.' {Mann v. Presi- dent, etc., 91 K Y. 500; Booth v. B. & A. B. B. Co., supra.) And that, when the general management and control of an industrial enterprise or establishment is delegated to a super- intendent, with power to hire and discharge servants, to direct their labors and obtain and employ suitable means and appli- ances for the conduct of the business, such superintendent stands in the place of the master, and his neglect to adopt ©0 Introduction. all reasonable means and precautions to provide for the safety of the employees constitutes an omission of duty on the part of the master, rendering him liable for any injury occurring to the servant therefrom. (Corcoran v. Ilolbrooh, 59 N. Y. 517.)" Pantzar v. Tilly Foster Mm. Co., 99 K Y. 3G8, 372. Servant's responsibility to the master. — " Every servant is bound to take due care of his master's property entrusted to him. If guilty of gross negligence, whereby it is injured, he is liable to an action. So, too, if guilty of fraud or mis- feasance, whereby damage has accrued to his master. " A servant is liable to an action at the suit of his master, when a third person has brought an action, and recovered damages against the master, for injuries sustained in conse- quence of the servant's negligence or misconduct ; and in such an action against the servant, the verdict against the master, in the action brought against him, is evidence as to the quantum, of damages, though not, according to some of the English authorities, as to the fact of the injury." Grand Trunh Railway Co. v. Latham, 63 Me. 177. Servant's liability to third persons. — " In a case of strict negligence by a servant, while employed in the service of his master, I see no reason why an action will not lie against both jointly. They are both guilty of the same negligence, at the same time and under the same circumstances; the servant in fact and the master constructively, by the servant, his agent." Wright v. Wilcox, 19 Wend. 313. " The law on this subject as to principals and agents is founded upon the same analogies as exist in the case of mas- ters and servants. The master is always liable to third per- sons for the misfeasances and negligences and omissions of duty of his servant, in all cases within the scope of his em- ployment. So the principal in like manner, is liable to third persons for the like misfeasances, negligences and omissions of duty of his agent, leaving him to his remedy over against the agent in all cases w^here the tort is of such a nature that Irv'TRODUCTIOIs". 61 he is entitled to compensation. The agent is personally liable to third persons, for his own misfeasances and positive wrongs, but he is not in general liable to third persons for his 0"wn non-feasances or omissions of duty, in the course of his employment. His liability in these latter cases, is solely to his principal, there being no privity between him and such third persons ; and the privity exists only between him and his principal." Harriman v. Stowe, 57 Mo. 93. See also editorial in IST. Y. Law Journal of March 16, 1904. Modification of the doctrine of respondeat superior. — A modification of the doctrine of respondeat superior ex- empts the master from liability to servants for injuries sus- tained through the fault of fellow-servants. " The general rule that the employer is not liable to one servant or laborer for an injury resulting from the careless- ness or negligence of another servant or co-laborer . was first promulgated in England in 1837 (3 M. & W. 1), in South Carolina in 1841 (1 McCuUom 385), and in Massa- chusetts in 1842 (4 Met. 49), and has been adopted in this and most of the other States in the Union. There has been a diversity of reasons given for its adoption, w^hich have led to some confusion in its application." Flilx v. Boston & Albany B. R. Co., 53 X. Y. 549, 551. Reasons for the rule. — " The reasons for the rule are well stated by Pratt^ J., in the first case in which it was applied in this State (6 Barb. 231), and were in substance that the rule respondeat superior does not itself spring directly from, principles of natural justice and equity, but has been estab- lished upon principles of expediency and public policy for the protection of the community; and that, in view of the unjust consequences which may ensue from its application for injuries by co-servants, the same principles of public policy demand its limitation, and that while the general rule was demanded for the protection of the community, the ex- ception is demanded for the protection of the employer, espe- 62 Introduction. ciallj in view of the manner in which the principal business of the country is now transacted. This view evinces the flexi- bility of the principles of the common law, which are capable of adaptation to new or changed circumstances, and enables courts to adjust the application of the principle not in obedi- ence to a supposed arbitrary rule, but with such limitations and qualifications as best accord with reason and justice. In applying the rule we should be cautious not to violate the very principles upon which it is founded. While shielding the employer from unjust and burdensome liabilities, we should not withhold all redress from the employed for re- missness and carelessness in respect to duties which fairly devolve upon the former as the principal, and over which the latter have no control." Flil-e v. Boston & Albany II. R. Co., 53 N. Y. 549, 552. " The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employ- ment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and, in legal presumption, the compensation is adjusted accordingly. And we are not aware of any prin- ciple which should except the perils arising from the care- lessness and negligence of those who are in the same employ- ment. These are perils which the servant is as likely to know, and against which he can as effectually guard, as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation as any others." Farwell v. Boston & Worcester R. R. Co., 4 Met. 49, 57. •' If the exemption of masters from liability to servants for the negligence of fellow-servants is founded upon any princi])le Avhatever, it must be upon an assumption that, in a majority of cases so large as to constitute a rule for all others, both employer and employee tacitly imderstand, when the employment begins, that the employee is not to expect indemnity from the employer against the negligence of other li^JTKODUCTION. 63 persons in the same common employment. If it is true that such is the universal understanding between the parties, though unexpressed, and that such was the case before the question had ever been passed upon by the courts, there is a good foundation for the rule, in all cases in which an express contract to the same effect would be binding. For, upon a familiar principle of the law of contracts, where both parties to the contract of hiring have, in fact, each understood the contract in that sense, or where the employee entered into the contract of service, knowing or believing that the em- ployer understood this condition to be implied, the condition is implied, just as effectually as if it had been put down in writing. And if such a mutual understanding has always existed, in the vast majority of cases, and a contrary under- standing has not been known to exist in any appreciable number of cases, such a state of facts creates a settled usage, the terms of which are implied in every contract from which they are not expressly excluded, even though one of the parties may not have known of the usage or intended to assent to it, so long as the other party was not aware of that cir- cumstance. These are well-known princij)les in the law of contracts; and they are properly applicable to the law of master and servant." Shearman & Eediield on I^egligence (5th ed.), § 179. Who are fellow-servants. — "A master is not liable to those in his employ for injuries resulting from the negli- gence, carelessness or misconduct of a fellow-servant engaged in the same general business. ISTor is the liability of the master enlarged when the servant who has sustained an injury is of a grade of the service inferior to that of the servant or agent whose negligence, carelessness or miscon- duct has caused the injury, if the services of each, in his particular labor, are directed to the same general end. And though the inferior in grade is subject to the control and directions of the superior whose act or omission has caused the injury, the rule is the same. Nor is it necessary, to Sii I.NTKODUCTIOX, exempt the master from liability, that the sufferer and the one who causes the injury should be at the time engaged in the same particular work. If they are in the employment of the same master, engaged in the same common work and performing duties and services for the same general purposes, the master is not liable," Laning v. N. Y. C. R. 11. Co., 49 K Y. 521, 528. Rank or grade immaterial. — " The master is not respon- sible for the negligent performance of some detail of the work intrusted to the servant, whatever may have been the grade of the servant who executes such detail. If it is the work of the servant, and he volunteers to perform it, and the master is not at fault in furnishing proper materials, there is no breach of duty on the part of the latter." Kimmer V. ^Veher, 151 K Y. 417, 422. " To hold the principal liable whenever there are grada- tions of rank between the person receiving and the person causing the injury, or whenever they are employed in differ- ent departments of the same general service, would result in frittering away the whole doctrine of fellow-service. Cases arising between persons engaged together in the same identical service, as, for instance, between brakemcn of the same train or two seamen of equal rank in the same ship, are comparatively rare. In a large majority of cases there is some distinction either in respect to grade of service, or in the nature of their employments. Courts, however, have been reluctant to recognize these distinctions unless the supe- riority of the pe-rson causing the injury was such as to put him rather in the category of principal than of agent, as, for example, the superintendent of a factory or railway, and the employments were so far different that, although paid by the same master, the two servants were brought no farther in contact with each other than as if they had been employed by different principals." Northern Pacific Railroad v. Jlambly, 154 U. S. 349, 3 GO, and cited with approval in New England Railroad Co. v. Conroy, 175 U. S. 323, 337. I:xTRODUCTiO']sr. 65 Must be under control of one master. — Common employ- ment and ultimate purpose are insufficient to make men fellow-servants. In Kilroy y.D.& H. C. Co., 121 N. Y. 22, it was contended that the person injured and the person causing the injury were fellow-servants because they were engaged in one coimnon employment, but the court said (p. 30) that "they could not be fellow-servants unless they were under the control of one master." Vice-principals not fellow-servants. — " At an early day, American judges divided sharply upon the question of the liability of a master to his servants, for the negligence of a servant of superior grade and in control of other servants. The question was passed upon, almost at the same time, in the East and the West: the Massachusetts court holding strongly in favor of masters, and the Ohio court strongly against them. A long conflict of opinions followed ; and , in 1887, there was no general settled rule. Al- though entire unanimity has not yet been reached on some material points, several fundamental principles are fully agreed upon. It is now universally held, in iimerican courts, that a master always may have, and sometimes must have, a servant, who acts as his representative or alter ego towards other servants ; and that for the negligence of such repre- sentative, while acting as such, the master is responsible to the other servants, precisely as if it were his own. By gen- eral consent such representative, while acting as such, is called a ' vice-principal.' And a vice-principal is not a ' fellow-servant.' " Shearman & Eedfield on Negligence (5th ed.), § 226. " It frequently becomes very difficult t^ determine whether the particular act in any case is that of the master in his character as such, or is only that of a mere fellow- servant. It is not a question as to the rank of the individual who gives the order or performs the act. The question is one as to the character of the order or act, whether it is one which is given or performed as an order or act of the master 5 66 Introduction. in his character as such, or only as an order or act delegated by the master to another and performed by such other as an employee. The rule as to the liability of the master for the act of a servant is well known. Church, Ch. J., said in the Flike case that the master must be held liable for negligence in respect to such acts or duties as he is required to perform as master, and Avithout regard to the rank or title of the agent whom he has intrusted with its performance. (Flike v. Boston, etc., Co., 53 N. Y. 549.) This language was re- peated in Crispin v. Bahhitt (81 N. Y. 516), where the liability of the master for the negligence of his servant, by which another servant has suffered injury, was said not to depend upon the doctrine of respondeat superior, but upon the omission of some duty of the master which he has con- fided to such inferior employee. If the act omitted were of the kind- which the master owed to the employee the duty of performing, he would be responsible to the employee for the manner of its performance. It is not a question of rank among the different employees. The rule thus laid down has been since frequently approved in this court." Hankins v. N. Y., L. E. & ^V. R. R. Co., 142 N. Y. 416, 420. Negligence of master and fellow-servant concurring. — Where a servant has been injured, partly through the wrong- ful act of a fellow-servant and partly in consequence of the omission of a duty owing by the master, the master may be held responsible for the entire damage suffered, because the law will not attempt to apportion it. " It has recently been several times held in this court that co-operation of the negligence of the master and a co-servant in the production of an injury to an employee, does not excuse the master from liability therefor, . . . That a fellow-servant may, by care and caution, operate a defective and dangerous machine so as not to produce an injury to others, does not exempt the master from his liability for an omission to perform the duty which the law imposes upon him of exercising reasonable care and prudence in furnish- Introduction. 67 ing safe and suitable appliances for the use of his servants. The rule which excuses the master under such circumstances presupposes that he has performed the obligations which the law imposes upon him, and that the injury occurs solely through the negligence of the co-employee." Stringham v. Stewart, 100 N. Y. 516, 526. r 3 -a ^^"^ \5; THE EMPLOYEES' LIABILITY ACT. '**T.y>- (Laws of New York, 1902, Chapter 600.) "^^^-"^-i^ ri''*''''*^ An Act to extend and regulate the liability of employers to make compensation for personal injuries suffered by *'*^''*\'y^ employees. ^\ (Became a law, April 15, 1902, with the approval of the Governor. f\|*^ Passed, three-fifths being present.) ^J^ The people of the State of New York, represented in ) **" *^ ^^^'^ Senate and Assembly, do enact as follows: -!»>.•_«*- "^ JoO-^ ''*'-^j****V Section 1. Where, after this act takes effect, personal in- ^^— ^,>r jury is caused to an employee who is himself in the exercise /-5 — of due care and dilis-ence at the time : 3 -u^. 1. Ways, works, or machinery. — By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the 3 negligence of the employer or of any person in the service of the employer and entrusted by him with the duty of seeing that the ways, works or machinery w^ere in proper condition ; '"'"*'*J*- 2. Negligence; compensation against employer in case \,si*^ injury results in death. — By reason of the negligence of any '-«jro->Ji person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of such superin- «sc 68 Introouction. tendent, of any person acting as superintendent with the authority or consent of such employer; the employee, or in case the injury results in death, the executor or administrator of a deceased employee who has left him surviving a husband, wife or next of kin, shall have the same right of compensa- tion and remedies against the employer as if the employee had not been an employee of nor in the service of the em- ployer nor engaged in his v/ork. The provisions of law relat- ing to actions for causing death by negligence, so far as the same are consistent with this act, shall apply to an action brought by an executor or administrator of a deceased em- ployee suing under the provisions of this act. § 2. Action, how maintained; notice requirements as to; in case of death without having given notice; notice, how served. — ■ ]S^o actictn for recovery of compensation for injury or death under this act shall be maintained unless notice of the time, place and cause of the injury is given to the em- ployer within one hundred and twenty days and the action is commenced within one year after the occurrence of the accident causing the injury or death. The notice required by this section shall be in writing and signed by the person injured or by some one in his behalf, but if from physical or mental incapacity it is impossible for the person injured to give notice within the time provided in said section, he may give the same within ten days after such incapacity is removed. In case of his death v/ithout having given such notice, his executor or administrator may give such notice within sixty days after his appointment, but no notice under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury if it be shown that there was no intention to mislead and that the party entitled to notice was not in fact misled thereby. The notice required by this section, shall be served on the employer or if tliere is more than one employer, upon one of such employers, and may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. Introduction. 69 The notice may be served by post by letter addressed to the person on whom it is to be served, at his last kno%vn place of residence or place of business and if served by post shall be deemed to have been served at the time when the letter con- taining the same would be delivered in the ordinary conrse of the post. ^Yhen the employer is a corporation, notice shall be served by delivering the same or by sending it by post addressed to the office or principal place of business of such corporation. ^ 3. Employee assents to necessary risks of occupation; question, etc., to be one of fact, etc. — An employee by enter- ing upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall, in all cases arising after this act takes effect be considered as including those risks, and those only, inherent in the nature of the busi- ness which remain after the employer has exercised due care in providing for the safety of his employees, and has com- plied with the laws affecting or regulating such business or occupation for the greater safety of such employees. In an action maintained for the recovery of damages for personal injuries to an employee received after this act takes effect, owing to any cause for which the employer would otherwise be liable, the fact that the employee continued in the ser%dce of the employer in the same place and course of employment after the discovery by such employee, or after he had been informed of, the danger of personal injury therefrom, shall not, as a matter of law, be considered as an assent by such employee to the existence or continuance of such risks of per- sonal injury therefrom, or as negligence contributing to such injury. The question whether the employee understood and assumed the risk of such injury, or was guilty of contributory negligence, by his continuance in the same place and course of employment with knowledge of the risk of injury shall be one of fact, subject to the usual powers of the court in a proper case to set aside a verdict rendered contrary to the 70 Ijsttkoduction. evidence. An employee, or his legal representative, shall not be entitled under this act to any right of compensation or remedy against the employer in any case where such employee knew of the defect or negligence which caused the injury and failed, within a reasonable time, to give, or cause to be given, information thereof to the employer, or to some person superior to himself in the service of the employer who had entrusted to him some general superintendence, unless it shall appear on the trial that such defect or negligence was known to such employer, or superior person, prior to such injuries to the employee. § 4. Insurance fund. — An employer who shall have con- tributed to an insurance fund created and maintained for the mutual purpose of indemnifying an employee for personal injuries, for which compensation may be recovered under this act, or to any relief society or benefit fund created under the laws of this state, may prove in mitigation of damages recoverable by an employee under this act such proportion of the pecuniary benefit which has been received by such employee from such fund or society on account of such con- tribution of employer, as the contribution of such employer to such fund or society bears to the whole contribution thereto. § 5. Existing right of action, etc., continued. — Every ex- isting right of action for negligence or to recover damage3 for injuries resulting in death is continued and nothing in this act contained shall be construed as limiting any such, right of action, nor shall the failure to give the notice pro- vided for in section two of this act be a bar to the main- tenance of a suit upon any such existing right of action. § 6. When act takes effect. — This act shall take effect July first, nineteen hundred and two. Assault and Battery. 73 ASSAULT AND BATTERY Security of person. — " Security for the person is among the first conditions of civilized life. The law therefore pro- tects us, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present apprehension of any of these things." Pollock on Torts (Ttli ed.), 209. " One of the most imjiortant objects to be attained by the enactment of laws and the institutions of civilized society is, each of us shall feel secure against unlawful assaults. With- out such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of govermnent, cannot be enjoyed without the sense of perfect security. "We have a right to live in society without being put in fear of personal harm. But it must be a reasonable fear of which we complain." Beach v. HancocJc, 27 K H. 223, 229. Assault defined. — An assault "is an attempt or offer to beat another, without touching him." Blackstone Com., Ill,, 120. " An action which puts another in instant fear of unlaw- ful force, though no force be actually applied, is the wrong called assault." Pollock on Torts (7th ed.), 209. An assault is " an attempt with force or violence to do a corporal injury to another ; and may consist of any act tend- ing to such corporal injury, accompanied with such circum- stances as denote at the time an intention, coupled with the present ability, of using actual violence against the person." Hays V. The People, 1 Hill, 351, 352. " An assault (without contact) is an attempt, real or ap- parent, to do hurt to another's person, within reach. It is an attempt tx3 do bodily harm, stopping short of actual execu- tion." Bigelow on Torts (7th ed.), 184. 74 Assault and Battery. Intent. — " To constitute an indictable assault or battery, there must always be an intent, expressed or implied, to do injury to another; but one may be liable in a civil action for assault or battery, where there was an entire absence of intent to do any injury, the ground of liability being that the assault was committed in the pursuance of an unlawful act or was the result of negligence." II. Am. & Eng. Enc. of Law (2d ed.), 953. While it is true that intention to do harm is immaterial in the civil wrong of assault, intention to put in fear of pres- ent bodily harm would seem to be necessary to produce the effect of an assault. " There is no battery, according to the modern view, unless the blow itself was intentional or reckless, or unless the de- fendant was otherwise conducting himself as a trespasser at the time." Bigelow on Torts (7th ed.), 190. Essential elements. — 1. The offer or attempt to do harm. 2. The indicated intent to put in fear of present bodily harm. 3. The real or apparent present ability to do harm. Threats. — " It is not every threat, when there is no actual personal violence, that constitutes an assault; there must, in all cases, be the means of carrying the threat into effect. ' Stephens v. Myers, 4 Car. & P. 349. " Verbal threats of personal violence are not, as such, a ground of civil action at all. If a man is thereby put in reasonable bodily fear he has his remedy, but not a civil one, namely by security of the peace." Pollock on Torts (7th ed.), 215. Assault included in battery. — " Battery includes assault, and although assault strictly means an inchoate battery, the word is in modern usage constantly made to include battery. No reason appears for maintaining the distinction of terms in our modern practice." Pollock on Torts (7th ed.), 210. Assault and Battery. 75 The modern use is apparent in the English Criminal Code •of 1879. " An assault is the act of intentionally applying force to the person of another directly or indirectly, or at- tempting or threatening by any act or gesture to apply such force to the person of another, if the person making the threat causes the other to believe upon reasonable grounds that he has present ability to effect his purpose." Eng. Crim. Code (Indict. Offences)' Bill, s. 203. Battery defined. — '' The least touching of another's per- son wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and there- fore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner." Blackstone Com., III., 120. Contact. — ''It is not necessary that the defendant should come in contact with the plaintiff's body. It is sufficient if the blow or touch come upon the plaintiff's clothing. ********* " Indeed, it is not necessary that the plaintiff's body or •clothing be touched. To knock a thing out of the plaintiff's hands, such as a staff or cane, would clearly be a battery; and the same would be true of the striking a thing upon which he is resting for support, at least if this cause to the plaintiff a fall or concussion." Bigelow on Torts (7th ed.), 188. In People v. Moore, 50 Hun, 356, a peddler, seated in his sleigh, was driving his team, on his way to deliver milk to his customers. The defendant barred his passage at a certain point, seized the reins, took the horses by their heads, turned them around, and told the peddler to drive on. The defend- ant was convicted of assault [assault and battery] in the third degree, and on appeal to the General Term of the Supreme Court, the court (at p. 358) said: "It is plain, , . . , that the force which ho [the defendant] applied 7G Assault and Batteey. to the horses and sleigh just as effectually touched the person of Snyder [the peddler], as if he had taien him hy his ears or shoulders and turned him right about face. The horses and sleigh were the instruments with which he directed and augmented his personal and physical force against, and upon the body of Snyder. Snyder did receive bodily harm. One receives bodily harm, in a legal sense, when another touches his person against his will with physical force, intentionally hostile and aggressive, or projects such force against his person." Use of force or violence when not unlawful. — " To use or attempt, or offer to use, force or violence upon or towards the person of another, is not unlawful in the following cases : ''1. ^^^len necessarily committed by a public officer in the performance of a legal duty; or by any other person assisting him or acting by his direction; " 2. "When necessarily committed by any person in arrest- ing one who has committed a felony, and delivering him to a public officer competent to receive him in custody; " 3. When committed either by the party about to be in- jured, or by another person in his aid or defense, in pre- venting or attempting to prevent an offense against his person, or a trespass or other unlawful interference with real or personal property in his lawful possession, if the force or violence used is not more than sufficient to prevent such offense ; " 4. ^Yhen committed by a parent or the authorized agent of any parent, or by any guardian, master or teacher, in the exercise of a lawful authority to restrain or correct his child, ward, apprentice or scholar, and the force or violence used is reasonable in manner and moderate in degree; ^' 5. When committed by a carrier of passengers, or the authorized agents or servants of such carrier, or by any per- son assisting them, at their request, in expelling from a car- riage, railway car, vessel or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed Assault and Battery. 77 for the conduct of passengers, if such vehicle has first been stopped and the force or violence used is not more than sufficient to expel the offending passenger, with a reasonable regard to his personal safety ; '' 0. When committed by any person in preventing an idiot, lunatic, insane person, or other person of unsound mind, including persons temporarily or partially deprived of reason, from committing an act dangerous to himself or to another, or in enforcing such restraint as is necessary for the protection of his person or for his restoration to health, during such period only as shall be necessary to obtain legal authority for the restraint or custody of his person.'" !N". Y. Penal Code, § 223. Consent. — " The weight of authority is that, where a combat involves a breach of the peace, the mutual consent of the parties thereto is to be regarded as unlawful, and as not depriving the injured party, or, for that matter, each injured party, from recovering damages for injuries received from the unlawful acts of the other." Lund v. Tyler, 115 la. 236, 237. " It is implied, in an assault or battery, that it is com- mitted against the assent of the person assaulted ; but there are some things a man can never assent to, and therefore his license in such cases can constitute no excuse. He can never consent, for instance, to the taking of his own life. His life is not his to take or give away ; it would be criminal in him to take it, and equally criminal in anyone else who should deprive him of it by his consent. The person who, in a duel, kills another, is not suffered to plead the previous arrange- ments and the voluntary exposure to death by agreement, as any excuse whatever. The life of an individual is guarded in the interest of the State, and not in the interest of the individual alone; and not his life only is protected, but his person as well. Consent cannot justify an assault. " But suppose in the duel one is not killed, but only "wounded; may he have an action against his adversary for 78 Assault and Battery. this injury ? If there is any reason why he may not, it must be because he has consented to what has been done. Volenti non jit injuria, liut if he had no right or power to consent, and the consent expressed in words was wholly illegal and void, the question then is, how a consent which the law for- bids can be accepted in law as a legal protection. " Consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to. A man cannot complain of a nuisance, the erection of which he concurred in or countenanced. He is not injured by a negligence which is partly chargeable to his own fault. A man may not even complain of the adultery of his wife, which he connived at or assented to. If he concurs in the- dishonor of his bed, the law will not give him redress, be- cause he is not wronged. These cases are plain enough, because they are cases in which the questions arise between the parties alone. '* But in case of a breach of the peace it is different. The State is wronged by this, and forbids it on public grounds. If men fight, the State will punish them. If one is injured, the law will not listen to an excuse based on a breach of tha law. There are three parties here, one being the State, which, for its o^vn good, does not suffer the others to deal on a basis of contract with the public peace. The rule of law is therefore clear and unquestionable, that consent to an assault is no justification. The exception to this general rule embraces only those cases in which that to which assent is given is matter of indifference to public order; such as slight batteries in play or lawful games, such unimportant injuries, as even when they constitute technical wrongs, may well be overlooked and excused by the party injured, if not done of deliberate malice. But an injury, even in sport, would be an assault, if it went beyond what was admissible in sports of the sort, and was intentional." Cooley on Torts (2d ed.), 187. The New York Law Journal, in its issue of January 22, 1902, criticises the above as follows: "With the gi-eatest Assault and Battery. 79 deference for the distinguished jurist, it may be sugi^ested in rejoinder tliat the fact that a person's conseat to his death or injury cannot be permitted to characterize the criminal character of an act would not necessarily preclude attaching an entirely different significance to such consent in a civil action for the recovery of damages. The above argument consists of transplanting a highly proper rule of the criminal law into the civil law where its effect is not conducive to good results. The offense of adultery would seem to be an un- fortunate illustration of a case ' in which the questions arise between the parties alone.' In many of the States adultery constitutes a crime, and there is scarcely any offense outside of the serious crimes of violence with which public policy more generally concerns itself. This extract from Cooley ou Torts indeed starts out with an artificial and fictitious prem- ise which, in our judgment, vitiates its logic. The learned author remarks : ' There are some things a man can never assent to, and, therefore, his license in such cases can consti- tute no excuse. He can never consent, for instance, to the taking of his owm life,' etc. With all due respect it is sug- gested that a man who requests another to kill him and per- mits him to do it, does assent to the taking of his life. A man who participates in a duel or engages in a fight does impliedly consent to whatever injuries he may receive in the natural course of the combat. The theoretical distinction that should be made is, that as far as criminal complexion is concerned, the assent or license is ignored in pursuance of public policy, while in civil cases the consent is material. " If a man voluntarily enters into a fight, or intentionally provokes one, there is strong practical ground for invoking, not only the principle volenti non fit injuria, but the some- what cognate one, that no one may profit by his own wrong. It might have a disastrous effect upon the public peace, as well as frequently result in abstract injustice, if it were generally realized that a person could be as insulting and pugnacious as he pleased and still recover a round sum for damages, if he were actually overborne in the fight or suffered himself 80 Assault and Eatteky. to be injured. It is gravely questionable wlietlicr the prO' vision allowing the conduct of the plaintiff to be shown in mitigation of damages is a sufficient corrective or safeguard." Defense of person. — " Self-defense is a primary law of nature, and it is held an excuse for breaches of the peace and even for homicide itself. But care must be taken that the resistance docs not exceed the bounds of mere defense, . . . , so as to become vindictive ; for then, tlu; defender would himself become the aggressor. The force used must not exceed the necessity of the case." Scnhner v. Beach, 4 Denio, 448, 450. Must person assaulted retreat if possible? — In People v. Danhherg, 91 App. Div. 07, 71, ^' The learned trial court, after calling the attention of the jury to the definition of the two crimes of maiming and assault, said to the jury: ' Self-defense means that when a person believes that his life is in danger, or believes that he is in imminent danger of grievous bodily harm, he has a right to defend himself. The law also says that a person, in defending himself, must use no more force than is actually necessary. He must, if he can, avoid the quarrel. In other words, if he can run away, it is his duty to do so. While that may not be popular with men when they are assaulted, yet that is the law of our State.' While this charge was not excepted to, it stated a proposition of law which was applicable when a homicide had been committed, and not to the right of a person to defend himself when the act does not consist of the taking of human life. I take it that a person who is assaulted by another without provocation has a right to use sufficient force to repel the assault, without running away, or believing that his life is in danger, or that he is in imminent danger of grievous bodily harm. In the defense of his person or property, irrespective of the belief that there is danger to his life or of grievous bodily harm, a person has a right to repel an assault and use the necessary force for that purpose. Assault and Batteey. 81 He must see to it that he does not take life, except in a last extremity; and if he does, to escape responsibility, he must prove that the taking of life was justifiable. But it is not the law that a person in a public street or public place is bound to submit to insults or indignities, followed by an assault, although neither his life nor bodily harm is seriously threatened, without resorting to sufficient force to repel the assault." Defense of property. — " It is elementary that one may justify an assault and battery in self-defense or in defense of his possession of his real or personal property. But the general mle is that a right of property merely, not joined ^\dth the possession, will not justify the owner in committing an assault and battery upon the person in possession, for the purpose of regaining possession, although the possession is ^vrongfully withheld. . . . This rule is foimded upon considerations of public policy, to prevent parties from dis- turbing the public peace by attempts to right themselves by force instead of resorting to the remedy by action." Bliss v. Johnson, 73 N. Y. 529, 533. " Unquestionably, if one takes another's property from his possession without right and against his will, the owner or person in charge may protect his possession, or retake the property, by the use of necessary force. He is not bound to stand by and submit to wrongful dispossession or larceny when he can stop it, and he is not guilty of assault in thus defending his right, by using force to prevent his property from being carried away. But this right of defense and reeapture involves two things : first, possession by the owner, and, second, a purely wrongful taking or conversion, with- out a claim of right. If one has intrusted his property to another, who afterwards, honestly though erroneously, claims it as his owm, the owner has no right to retake it by personal force. If he has, the actions of replevin and trover in many cases are of little use. The law does not permit parties to take the settlement of conflicting claims into their own hands. 6 82 Assault and Battery. It gives the right of defense, but not of redress. The cir- cumstances may he exasperating; the remedy at law may seem to be inadequate; but still the injured party cannot be arbiter of his own claim. Public order and the public peace are of greater consequence than a private right or an occa- sional hardship. Inadequacy of remedy is of frequent occur- rence, but it cannot find its complement in personal violence." Kirhy v. Foster, 17 E. I. 437, 438. Right of recovery by paxty using excessive force. — In Elliott V. Brown, 2 Wend. 497, it was held that the party first attacked is not entitled to maintain an action for assault and battery against the other party, if he exceeded the bounds of self-defense, the court (p. 500) saying: "It is true that both parties may be guilty of a breach of the peace, and may be liable to punishment by indictment at the suit of the people, whose laws they have both offended; but a civil action cannot surely be sustained by each of them against the other. The judge should have told the jury, that although the defendant might have given the first blow, yet if the plaintiff had used not only more force than was necessary for self-defense, but had unnecessarily abused the defendant, that then he was not entitled to recover damages." In Dole V. Erskine, 35 IST. II. 503, the court held that imder such circumstances each would have a cause of action against the other. In that case the court said, p. 511 : " Up to the time that the excess is used, the party [first] assaulted is in the right. Until he exceeds the bounds of self-defense he has committed no breach of the peace, and done no act for which he is liable ; while his assailant, up to that time, is in the wrong, and is liable for his illegal acts. Now, can this cause of action which the assailed party has for the injury inflicted upon him, and which may have been severe, be lost by acts of violence subsequently committed by himself? " We think that these are not matters of set off ; that the one cannot be merged in the other, and that each party haa Assault a^^d Battery. 83 been guilty of a wrong for which he has made himself liable to the other. There have, in eifect, been two trespasses com- mitted; the one by the assailant in commencing the assault, and the other by the assailed party in using the excessive force ; and, upon principle, we do not see why the one can be an answer to the other, any more than an assault com- mitted by one party on one day can be set off against one committed by the other party on another day. The only difference would seem to consist in the length of time that has elapsed between the two trespasses. In a case where excessive force is used, the party using it is innocent up to the time that he exceeds the bounds of self-defense. When he uses the excessive force, he then for the first time becomes a trespasser. And wherein consists the difference, except it be that of time, between a trespass committed by him then, and one committed by him on the same person the day after?" In Deagan v. Weeks, 67 App. Div. 410, 414, the plaintiff sued to recover damages for an alleged assault and battery. The defendant denied each and every allegation of the com- plaint relating thereto, and set up as counterclaim an assault and battery committed upon him during the affray out of which the plaintiff's alleged cause of action arose. The plaintiff demurred, but his demurrer was overruled, and the Appellate Division, sustaining the determination of the lower court, said : " The sections of the Code relating to counterclaims should have a liberal construction, and where alleged causes of action, one set forth in the complaint and the other in the defendant's answer as a counterclaim, are so connected that they must be determined on the same evi- dence, they should be litigated and determined in one action, although a recovery cannot be had in favor of either defend- ant or plaintiff without a finding that wholly defeats the alleged cause of action of the other. " It does not seem to us in accordance with the spirit of modern procedure to give the sections of the Code quoted [§§ 500 and 501] such a technical construction that it might 8^- Assault and Battesy. require the trial court to twice sit and hear exactly the same facts in actions between the same parties before the proper judgment can be rendered between them. We have not over- looked the fact that there are decisions in this and other States seemingly in conflict with the views herein expressed. " We do not intend by this decision to express any opinion as to the right of a defendant to interpose a counterclaim in a case where he admits the assault alleged in the complaint and then alleges that the plaintiff thereupon became the aggressor and committed an assault upon him ; or, in an action for slander where he alleges that the plaintiff at or about the time mentioned in the complaint slandered him, the defendant." Provocation : effect upon damages. — '' Where there is a reasonable excuse for the defendant, arising from the provo- cation or fault of the plaintiff, but not sufficient entirely to justify the act done, there can be no exemplary damages, and the circumstances of mitigation must be applied to the actual damages. If it were not so, the plaintiff' would get fidl com- pensation for damages occasioned by himself. The rule ought to be, and is, practically mutual. Malice aud provo- cation in the defendant are punished by inflicting damages exceeding the measure of compensation, and in the plaintiff by giving him less than that measure." Bobison v. Rupert, 23 Pa. St. 523, 525. " It still remains that the plaintiff provoked the trespass, was liimself guilty of the act which led to the disturbance of the public peace. Although this provocation fails to justify the defendant (2 Greenl. Ev., § 98), it may be relied upon by him in mitigation even of compensatory damages. This doctrine is as old as the action of trespass (Avery v. Ray, 1 Mass. 11; Richardson v. Il'ine, 42 Conn. 206; Thomas v. Powell, 7 Carr. & P. 807 ; Lee v. Woolsey, 19 Johns. 318 ; Corning v. Corning, 6 IST. Y, 103; Cushman, v. Ryan, 1 Story, 100) ; and is correlative to the rule which permits cir- cumstances of aggravation, such as time and place of an. False Impkisonment. 85 assault, or insulting words, or other circumstances of indig- nity and contumely, to increase them." Kijf v. Yomnans, 86 K Y. 324, 330. To the contrary is the following : " Jacobs v. Hoover, 9 Minn. 204, Cushman v. Waddell, Baldwin, 57, and McBride V. McLaughlin, 5 Watts, 375, are strong authorities in sup- port of the rule that provocative language used by the plain- tiff at the time of the battery should be given in evidence only in mitigation of exemplary damages, and that unless the plaintiff has given the defendant a provocation amounting in law to a justification he is entitled to receive compensa- tion for the actual injury sustained. " If provocative words may mitigate, it follows that they may reduce the damages to a mere nominal sum and thus practically justify an assault and battery. But why under this rule may they not fully justify? If in one case, the provocation is so great that the jury may award only nominal damages, why, in another, in which the provocation is far greater, should they not be permitted to acquit the defendant and thus overturn the well-settled rule of law, that word8 cannot justify an assault. On the other hand if words can- not justify they should not mitigate. A defendant should not be heard to say that the plaintiff was first in the wrong by abusing him with insulting words and therefore, though he struck and injured the plaintiff, he was only partly in the wrong and should pay only part of the actual damages." Goldsmith v. Joij, 61 Vt. 488, 498. FALSE IMPKISOKMENT. Freedom of person. — " Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law. The infliction of such restraint is the wrong of false imprisonment ; which, though generally coupled with assault, is nevertheless a distinct wrong." Pollock on Torts (7th ed.), 216. 86 False Imprisonment. Defined. — ^'A false imprisonment consists in the total, or substantially total, restraint of a man's freedom of locomo- tion." Bigelow on Torts (7tli ed.), 199. " False imprisonment is necessarily a \vrongful interfer- ence with the personal liberty of an individual. The wrong may be committed by words alone, or by acts alone, or by both, and by merely operating on the will of the individual or by personal violence, or by both. It is not necessary that the individual be confined within a prison or within walls; or that he be assaulted, or even touched. It is not necessary that there should be any injury done to the individual's per- son, or to his character, or reputation. Xor is it necessary that the wrongful act be committed with malice, or ill-will, or even with the slightest MTongful intention. . . . All that is necessary is, that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or acts which he fears to disregard." Comer v. Knowles, 17 Kan. 436, 440. Imprisonment must be circumscribing. — " A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be movable or fixed; but a boundary it must have; and that boundary the party imprisoned must be prevented from passing; he must be prevented from leaving that place, within the ambit of which the party imprisoning would con- fine him, except by prison-breach. Some confusion seems . to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the definition of freedom to be able to go whithersoever one pleases ; but imprisonment is something more than the mere loss of this power ; it includes the notion of restraint within some limits defined by a will or power exterior to our o\vn." Bird v. Jones, 7 Adol. & E. [N. S.] 742, 744. Essential elements. — " To constitute the injury of false imprisonment there are two points requisite: 1. The deten- False Imprisonment. 87 tion of the person : and, 2. The unlawfulness of such deten- tion." Blackstone Com., III., 127. " This action [false imprisonment] was not what would formerly have been denominated case, . . . , but tres- pass. . . . The material averment in the complaint is, that the defendant ' unlawfully seized and arrested the plain- tiff ; ' that of malice and want of probable cause may be treated as surplusage or as matter merely in aggravation of damages." AcJcroyd v. Ackroyd, 3 Daly, 38, 41. Termination of criminal proceeding not a condition pre- cedent. — " The exclusion of evidence of the disposition made by the grand jury of the charge against the plaintiff was not error. That evidence could have no legitimate bearing upon the question of the legality of the arrest by the police officer. And in this action for false imprisonment the termination of the criminal proceeding against the plaintiff had no import- ance, although such fact is essential in an action for malicious prosecution." Hopner v. McGowan, 116 N. Y. 405, 410. " This action is similar to the cognate one of malicious prosecution, and if the defendant has been adjudged guilty of the crime, he cannot maintain a civil remedy against those instrumental in securing his conviction so long as the judg- ment stands unreversed. The theory on which each of these actions is sustainable is that the proceeding out of which the action arose has terminated successfully to the defendant, exonerating him from the charge made. It would be incon- sistent to have a judgment of a court of competent jurisdic- tion, proving guilt, and a verdict by a jury in a civil action, based upon the assumption of innocence." Jones v. Foster, 43 App. Div. 33, 35. See, also, Cuniff v. Beecher, 84 Hun, 137, 140. Justification. — " When an action for false imprisonment is brought and defended, the real question in dispute is mostly, though not always, whether the imprisonment was justified." Pollock on Torts (7th ed.), 217. ■^ False Imprisonment. Arrests with warrant. — " A sufficient judicial warrant takes away from an imprisonment the essential element of illegality, and completely justifies an arrest. . . . " It is by no means clea^ when a warrant is not sufficient to justify the arrest. If it be void on its face, it is, of course, not sufficient. To be regular on its face, the w^arrant must at least charge the commission of a criminal wrong, and con- form in other respects wdth statutory provisions and recog- nized practice. " Where, how^ever, the warrant is void, either from material defect in its language, for w^ant of jurisdiction of the court, or because of the court having no power to issue it, the sheriff who executes it, the attorney who prepares it, the client who authorizes it, and the witness who causes the arrest, all are liable at common law for the false imprisonment." Jaggard on Torts, I., 424-426. " The following propositions, I am disposed to believe, will be found to be w^ell sustained by reason and authority : " That where an inferior court has not jurisdiction of the subject-matter, or having it has not jurisdiction of the person of the defendants, all its proceedings are absolutely void; neither the members of the court, nor the plaintiff (if he pro- cured or assented to the proceedings), can derive any pro- tection from them when prosecuted by a party aggrieved thereby. " If a mere ministerial officer executes any process, upon the face of which it appears that the court which issued it had not jurisdiction of the subject-matter or of the person against whom it is directed, such process will afford him no protec- tion for acts done under it. " If the subject-matter of a suit is within the jurisdiction of a court, but there is a want of jurisdiction as to the person or place, the officer who executes process issued in such suit is no trespasser, unless the want of jurisdiction appears by such process." Savacool v. Bovghton, 5 Wend. 170, ISO. Void and irregular process distinguished. — " It cannot be disputed but that an attorney who causes void or irregular False Imprisonment. 89 process to be issued in an action, which occasions loss or in- jury to a party against whom it is enforced, is liable for the damages thereby occasioned. In the case of void process the liability attaches when the wrong is committed and no pre- liminary proceeding is necessary to vacate or set it aside, as a condition to the maintenance of an action. Process, how- ever, that a court has general jurisdiction to award, bnt which is irregular by reason of the non-performance by the party procuring it, of some preliminary requisite, or the existence of some fact not disclosed in his application therefor, must be regularly vacated or annulled by an order of the court, before an action can be maintained for damages occasioned by its enforcement. {Day v. Bach, 87 IST. Y. 56.) In such cases the process is considered the act of the party and not that of the court, and he is, therefore, made liable for the consequences of his act. " Void process is such as the court has no power to award, or has not acquired jurisdiction to issue in the particular case, or which does not in some material respect comply in form with the legal requisites of such process, or which loses its vitality in consequence of non-compliance with a condition subsequent, obedience to which is rendered essential. Irregu- lar process is such as a court has general jurisdiction to issue, but which is unauthorized in the particular case by reason of the existence or non-existence of some fact or circumstance rendering it improper in such a case." Fischer v. Langhein, 103 K Y. 84, 89. Erroneous process.— " There can be no doubt of the gen- eral principle, that void or irregular process, furnishes no justification to the party for acts done under it, with this limitation : that if the process is irregular only, so that it is merely voidable, and not void, it must be set aside or vacated before trespass can be brought. On the other hand, it is equally well settled that if the process was erroneous only, it protects the party for acts done under it while in force, and he may justify under it after it has been set aside." Day V. Bach,' 87 K Y. 56, 60. 90 False Imprisonment. Arrests without a warrant : statutory. — The right to ar- H- rest \vithout a Avarraiit is confined to criminal offenses, and is frequently regulated by statute. VI OW ^^ People V. Hochstim, 36 Misc. 5G2, 570, it is said : " The \ law is that any citizen, or any peace officer, the very same, ""^^ has been properly pleaded. The same particularity is re- ^t*^4-r^ quired whether the words be actionable per se or not. So, too, the plaintiff must still prove that the special damage '^^^• alleged is the direct result of the defendant's words, and not «< of any repetition of them by others. ( Tunnicliffe v. Moss, ^^ 3 C. & K 83; Hirst v. Goodwin, 3 F. & F. 257.) But in other respects the law is not quite so strict as to what con- stitutes special damage in the first case as in the second.'* Odgers on Libel and Slander (3d ed.), 352. IIG Libel and Slaxdee. Imputation of unchastity actionable per se by statute. — Lrapiitiiig nuchastity to a wouian was uot actionable at com- mon law, unless special damage was alleged and proved; but to-day, in the state of Xew York, " In an action of slander, brought by a woman, for words imputing uucliastity to lier, it is not necessary to allege or prov^e special damages," Code Civ. Pro., § 1906. Liability for publication in libel and in slander. — " The actual publisher of a libel may be an innocent porter or messenger — a mere hand, unconscious of the nature of his act, and for which, therefore^ his employers shall be held liable, and not he. Whereas in every case of the republica- tion of a slander the publisher acts consciously and volun- tarily; the repetition is his own act. Therefore, if a person is in any way concerned in the making or publishing of a libel, he is liable for all the damage that ensues from its publication. But if one person slander anotlier he is only liable for such damages as result directly from that one utterance of his own lijDS." Newell on Slander and Libel, 356. Repetition of defamation. — "Where words are spoken to one person and he repeats them to another, in consequence of which the party of whom they are spoken sustains dam- ages, the repetition is^ as a general rule, a wrongful act, rendering the person repeating them liable in like manner as if he alone had uttered them." Terwilliger v. Wands, 17 K Y. 54, 57. " It is too w^ell settled to be now questioned that one w^ho utters a slander, or prints and publishes a libel, is not re-. sponsible for its voluntary and unjustifiable repetition, with- out his authority or request, by others over whom he has no control and who thereby make themselves liable 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. (Newell on Defamation, 245; Libel and Slanber. 117 Moak's Underbill on Torts, 145; M'Gregor v. Tliwaites, 3 B. & C. 35.) The remedy in such a case wonld 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, imless they are procured by him to be published, or he per- formed some act which induced their publication, (Ward V. Weeks, 7 Bing. 211; Olmsted v. Brown, 12 Barb. 657.) The repetition of defamatory language by another than the first publisher is not a natural consequence of the first pub- lication, and, therefore, the loss resulting from such repeti- tion is not generally attributable to the first publisher. This rule is based upon the principle that every person who repeats a slander is responsible 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." Schoepftin v. Cojfeij, 162 X. Y. 12, 17. Repeating defamation with the name of the author. — " In the case of Davis v. Lewis, 7 Term Rep. 17, Lord Ken- yon observed, that if a person say that such particular man (naming him) told him certain slander, and that man did in fact tell him so, it is a good defense to an action of slan- der. There was a similar dictum of the judges, in the Earl of Northampton's .case, 12 Co. 132, but in neither of these cases was this the point in judgment; and it may well be questioned, whether even this rule as to slanderous words ought not to depend upon the quo animo with which the words with the name of the author are repeated. Words of slander with the name of the author may be repeated with a malicious intent, and with mischievous effect. The public may be ignorant of the worthlessness of the original author, and may be led to attach credit to his name and slander, when both are mentioned by a person of undoubted reputa- tion. There is, however, a distinction between oral and written or printed slander, which is noticed in all the books; 118 Libel and SLA^^DEB. and the latter is deemed mncli more pernicious, and will not so easily admit of justification. There is no precedent of such a justification in an action for a libel." Dole v. Lyon, 10 Johns. Kep. 447, 449. In Mapes v. TFeel'S, 4 Wend. G59, G62, the court said: " The defendant had openly and publicly said that the plain- tiff had stolen a sheep and he could prove it by a certain boy. When he is sued for the slander, instead of producing the boy or any body else to prove the charge, he wishes to excuse himself by proving that the boy told him so. The judge properly excluded the testimony, and was perfectly justified in the remark that the defendant had endorsed the slander of Archer by making the positive charge, and assert- ing his ability to make proof of its truth." From the above we may conclude, and properly, that the repetition of slander or libel is not justified by giving the name of the author, though, under § 535 of the Code of Civil Procedure, it might be offered in mitigation of damages. Must defamation be malicious? — "It is commonly said that defamation to be actionable must* be malicious, and the old form of pleading added ' maliciously ' to ' falsely,' though this was held to be needless before the end of the sixteenth century. Whatever may have been the origin or the original meaning of this language, malice in the modern law signifies neither more nor less, in this connexion, than the absence of just cause or excuse; and to say that the law implies malice from the publication of matter calculated to convey an action- able imputation is only to say in an artificial form that the person who so publishes is responsible for the natural con- sequences of this act." Pollock on Torts (7th ed.), 244. Language of the publication. — The language, alleged to be libellous, is to be given its ordinary import and meaning, unless an explanation accompanies the use of the words, which gives them a different meaning. That the alleged Libel and Slandek, 119 libellous language is capable of the meaning ascribed to it, is a question of law for the court; if it is also capable of another meaning, the jury must decide which meaning was conveyed under the circumstances. " Both cases [referring to Cooper v. Greeley, 1 Denio, 858, and Stone v. Cooper, 2 Denio, 293] were decided upon the princij)le that the language is to be construed fairly and naturally. It is not enough that a critic or a malignant may torture the expressions into a charge of a criminal or dis- graceful act. N^or is it enough, on the other hand, that a possible and far-fetched construction may find an inoffensive meaning in the language. The test is whether, to the mind of an intelligent man, the tenor of the article and the lan- guage used naturally import a criminal or disgraceful charge." More v. Bennett, 48 N. Y. 472, 476. See also Hayes v. Ball, 72 N. Y. 418, 420, followed in Warner v. Southall, 165 K Y. 496, 498. Intent of speaker. — " When a defendant has made a charge, that clearly imputes a crime, he cannot, afterwards, be permitted to say, I did not intend what my words legally imply. The intent must be collected from the expressions used, when they have a certain and definite meaning. The jury cannot rightfully indulge in conjectures that are not warranted by the legal import of the words spoken. But if it is doubtful whether the words impute a crime, or may be satisfied by ascribing to them a meaning which renders them not actionable, then the intent may become a fair subject of inquiry before a jury." M'Kinly v. Boh, 20 Johns. Rep. 351, 356. Innuendo. — " An averment by the plaintiff that words not libellous in their ordinary meaning or without a special appli- cation were used with a specified libellous meaning or appli- cation is called an innuendo, from the old form of pleading." Pollock on Torts (7th ed.), 248. The purpose of an innuendo is to explain, by attaching to doubtful words and phrases their true meaning. " It is, how- 120 Libel and Slandek. ever, well settled that an innuendo cannot extend the sense of the words used beyond their natural meaning, unless some- thing is put upon the record by way of introducing matter, with which they can be connected ; in which case, words which are equivocal, or ambiguous, or fall short in their natural sense of stating a slanderous charge, may have fixed to them a meaning extending beyond their ordinary import, which renders them certain or defamatory by means of a proper innuendo." Vickers v. Stoneman, 73 Mich. 419, 421. Averment, colloquium and innuendo. — "The use in plead- *) ioxXo" ing of &n avernient^ is to ascertain that to the court, which ' is generally or doubtfully expressed ; so that the court may not be perplexed of whom, or of what, it ought to be under- stood ; and to add matter to the plea to make doubtful things clear. (System of Pleading, 121.) A coUoQuium serves to ^^•^ show that the words were spoken in reference to the matter y-*-**^ of the averment. An i.n.nup.ndo is explanatory of the subject- ,.vl^ matter sufficiently expressed before; and it is explanatory of such matter only; for it cannot extend the sense of the words beyond their owti meaning, unless something is put upon the record for it to explain. This may be illustrated by Barham's case. (4 Coke's Rep. 20.) Barhani brought an action for the defendant's saying of him, ' Barham burnt my barn,' (innuendo) ' a barn with corn.' The action was held not to lie ; because burning a barn, unless it had corn in it, was not felony. ' But if, in the introduction, it had ^ jU-v- been averred that the defendant had a barn full of corn, and cu^^ji^ that, in a discourse about that barn, the defendant had spoken 4 ^^ the words charged in the declaration, an innuendo of its being 't"^*''*'''^' the barn full of com would have been good ; for by coupling the innuendo in the libel, with the introductory averment, it would have been complete.' (De Grey, Ch. J., in Rex v. Home, Cowp. 184.) Here the extrinsic fact that the defend- ant had a barn full of corn, is the averment. The allegation that the words were uttered in a conversation in reference to that bam, is the colloquium; and the explanation given to Libel and Standee. 121 the words thus spoken, is the innuendo/' Van Vechten v. Hopkins, 5 Johns. Rep. 211, 220. Comment and criticism.— " Nothing is a libel which is a fair comment on a subject fairly open to public discussion. This is a rule of common right, not of allowance to persons in any particular situation, and it is not correct to speak of utterances protected by it as being privileged. . . . There is not a cause of action with an excuse, but no cause of action at all. ' The question is not whether the article is privileged, but Avhether it is a libel.' " Pollock on Torts (7th ed.), 251. Comment and report distinguished. — "Comment and criti- cism on matters of public interest stand . . . on a dif- ferent footing from reports of judicial or parliamentary pro- ceedings. Such reports are privileged so long as they are fair and accurate reports and nothing more. But to any attempt at comment, no privilege attaches. In short, report and comment' are two distinct and separate things. A report is the mechanical reproduction, more or less condensed or abridged, of what actually took place ; comment is the judg- ment passed on the circumstances reported, by one who has applied his mind to them. Fair reports are privileged, while fair comments, if on matters of public interest, are no libels at all." Odgers on Libel and Slander (3d ed.), 34, Liberty of the press. — Freedom of speech and liberty of the press are guaranteed by the constitution. " Congress shall make no law . . . abridging the freedom of speech, or of the press." IT. S. Const., Amend't I. " The liberty of the press guaranteed by the Constitution is a right belonging to every one, whether proprietor of a newspaj3€r or not, to publish whatever he pleases, without the license, interference or control of the government, being responsible alone for the abuse of the privilege. It is a right which, from the introduction of the printing press down to the year 1694, did not in England belong to the subject On 122 Libel and Slandek. the contrary, no one was allowed to publish any printed mat- ter without the license and supervision of the government, and it was against such interference on the part of the gov- ernment, and in favor of the right of the citizen, that this provision found its way into our Bill of Rights." Negley v. Farroiv, GO Md. 158, 176. Truth as a defense. — In civil actions to recover damages for libel or slander, if the defendant alleges and proves that the defamatory matter was true, the plaintiff's cause of action fails, because " the law will not permit a man to recover dam- ages in respect of an injury to a character which he either does not or ought not to possess." (Littledale, J., 10 B. & C. 272.) Under such circumstances the motive of publication is immaterial. Criminal actions. — In criminal actions for libel, " the pub- lication is justified when the matter charged as libellous is true, and was published with good motives and for justifiable ends. The publication is excused when it is honestly made, in the belief of its truth and upon reasonable grounds for this belief, and consists of fair comments upon the conduct of a person in respect of public affairs, or upon a thing which the proprietor thereof offers or explains to the public." K Y. Penal Code, § SI-l. " Section 8 of article 1 of our State constitution provides, that ' In all criminal prosecutions or indictments for libel the truth may \'Q given in evidence to the jury ; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.' [See to same effect Art. I., § 8 of the present T^. Y. Const.] " This provision it will be observed is limited by its ex- press terms to criminal prosecutions and indictments. The former constitution did not, in this connection, contain the word ' criminal,' and it was thought by learned and able jur- ists that the provision of that constitution was applicable to Libel and Slander. 123 civil actions for libel. See Dolloway v. Turrill, 26 Wend. 383, and opinions of Senators Root and Verplanck, pages 399-402. All doubt, however, vas removed bj the insertion of the word ' criminal,' as it now appears in the constitution of 1846." Joannes v. Jennings, 6 T. & C, 138, 141. Civil actions. — " In civil actions where the truth of the alleged libel is pleaded in justification, it may be proved as a complete bar to the suit ; and in such case the motives with which the publication was made are not material. " This was so laid do\Mi by the Supreme Court and by the Court of Errors in the celebrated case of Root v. King, 7 Cow. 613; S. a, 4 Wend. 113. The rule is the same in slander; and as it was tersely stated by Bronson, J., in Baian v. Clause, 5 Hill, 196: 'Our laws allow a man to speak the truth although it be done maliciously.' " Joannes V. Jennings, 6 T. & C, 138, 141. Justification must be as broad as the charge. — " Any one (r-t«'*'***-|i may publish the truth of another, however much it may affect j..«oJMi* ^ his reputation ; but he must take en re not to make the charg e j^^..,,.,.*-!** broader than he can jii stify." Stilwell v. Barter, 19 Wend, j,^,,^^ 487, 490. See, also, Root v. King, 7 Cow. 613, 634. . ^ -^^^^^ -^""^ Mitigating circumstances. — In a civil action to recover damages for libel or slander, " the defendant may prove miti- gating circumstances, notwithstanding that he has pleaded or attempted to prove a justification." N. Y. Code Civ. Pro., § 535. Where the defendant " has pleaded the truth of his charges in justification of making them, and also matters in mitiga- tion, as allowed by the Code to do, the answer of justification, though unsustained by proof, can no longer be taken as conclusive evidence of malice against him, and as aggravat- ing the plaintiff's damages. For the principle upon which the defendant may mitigate the damages, or in other words, lessen the amount, which shall be recovered against him, for r^ 124 Libel and Slandek. sm. act of his which he cannot justify, is that though Avrong, he was mistakenly and tlius perhaps innocently, wrong." Klinck V. Colby, 4Q N. Y. 427, 437. Mitigation extends only to punitiv e damages. — " The rule in this class of actions is that if tlic publication is not justified, the plaintiff is entitled to recover his actual or compensatory damages in any event. There can be no miti- gation of this kind of damages, '^\^ii ga ti on pxten ds or rel a tes oiily to xiuniti3:e_QiL£X£LULplaiyLdamag£S.'' Wiiensch v. Morn- ing Journal Ass'n, 4 App. Div. 110, 115, and followed in Young v. Fox, 26 App. Div. 261, 271. Privilege as a defense. — The authorities, both in England and in this country, recogTiize two classes of privileged com- mMnications, the one aibsolute, and the othcT^ qualified., which, in proper case, may be urged by the defendant to relieve him of all legal liability for statements, spoken or written, defama- tory of the plaintiff. This is, in reality, an exception to the general rule of the common law that a man shall have a rem- edy for every injury, and is allowed, not because the plain- tiff has suffered no damage to his reputation, but because public policy and the interests of society require, that certain persons upon certain occasions shall speak freely and without fear of exposure to vexatious actions. Qualified privilege. Malice material. — " There is an im- portant class of cases in which a middle 'course is taken be- tween the common rule of unqualified responsibility for one's statements, and the exceptional rules which give . . . absolute protection to the kinds of statements covered by them. In many relations of life the law deems it politic and necessary to protect the honest expression of opinion concern- ing the character and merits of persons, to the extent appro- priate to the nature of the occasion, but does not deem it necessary to prevent the person affected from showing, if he can, that an unfavorable opinion expressed ooneeming him is Libel and Slandek. 125 not honest Occasions of this kind are said to be privileged, and communications made in pursuance of the duty or right incident to them are said to be privileged by the occasion. The term * qualified privilege ' is often used to mark the requirement of good faith in such cases, in contrast to the cases of 'absolute privilege.'" Pollock on Torts (7th ed.), 259. " In one [referring to the qualified class] the party is pro- tected from civil or criminal responsibility for his statements, whether spoken or written, although untrue, unless he is proved to have been actuated by a malicious design in making them. To this class of cases belong complaints preferred in tl!ii& proper quarter against public officers ; statements in regard to the character of a sen^ant, given by a master upon inquiry ; confidential communications upon matters of busi- ness, between parties having a mutual interest;, statements made in the discharge of a public or ofiicial duty ; and other publications of a similar nature. The occasion of the speech or writing, and the position of the person by vchom it is uttered, in these instances, repel the presumption or infer- ence of malice which the law justly and wisely attaches to a false and injurious accusation where it is gratuitously made. But the party injured may nevertheless prove, if he is able to do so, that the charge which has been published even upon such an occasion, was not only false in fact,, but malicious in motive. If he can establish express malice he may recover as in other cases, notwithstanding the conditional privilege. '^ Perl-ins v. Mitchell, 31 Barb. 461, 467. Moral duty to communicate. — " Judges who have had, from time to time, to deal with questions as to whether the occasion justified the speaking or the writing of defamatory matter, have all felt great difficulty in defining what kind of social or moral duty, or what amount of interest will afford a justification." Whiteley v. Adatns, 15 C. B. (^. S.) 392. " A communication made bona fide upon any subject-mat- ter in which the party connnunicating has an interest,, or iji 126 Libel and Slander. reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contained criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation." Harrison v. Bush, 5 Ellis & Black. (Q. B.) 344. " It is easy enough to apply the rule in cases where both parties, the one making and the one receiving the communi- cation, are interested in it, or where the parties are related, or where it is made upon request to a party who has an inter- est in receiving it, or where the party making it has an inter- est to subserve, or where the party making it is under a legal duty to make it. But when the privilege rests simply upon the moral duty to make the communication, there has been much uncertainty and difficulty in applying the rule. The difficulty is to determine what is meant by the term ' moral duty,' and whether in any given case there is such a duty. ... " The rule as to privileged communications should not be so extended as to open wide the flood-gates of injurious gossip and defamation by which private character may be overwhelmed and irreparable mischief done, and yet it should be so administered as to give reasonable protection to those who make and receive communications in which they are interested, or in reference to which they have a real, not imaginary, duty. Every one owes a moral duty, not, as a volunteer in a matter in which he has no legal duty or per- sonal interest, to defame another unless he can find a justifi- cation in some pressing emergency. " One may not go about in the community and, acting upon mere rumors, proclaim to everybody the supposed frail- ties or bad character of his neighbor, however firmly he may believe such rumors, and be convinced that he owes a social duty to give them currency that the victim of them may be avoided; and, ordinarily, one can not with safety, however free he may be from actual malice, as a volunteer, pour the Libel and Slandeb. 127 poison of such rumors into the ears of one who might be affected if the rumors were true." Bya(m v. Collins, 111 N. Y. 143, 151. Reports of judicial and legislative proceedings. — " Fair reports of judicial and parliamentary proceedings are put by the latest authorities in the same category [referring to the class of qualified privilege]. Such reports must be fair and substantially correct in fact to begin with, and also must not be published from motives of personal ill-will ; and this although the matter reported was ' absolutely privileged ' as to the original utterance of it." Pollock on Torts (7th ed.), 259. " An action, civil or criminal, cannot be maintained against a reporter, editor, publisher, or proprietor of a news- paper, for the publication therein of a fair and true report of any judicial, legislative, or other public and official pro- ceedings, without proving actual malice in making thp vp-. port." K Y. Code Civ. Pro., § 1907. " The last section does not apply to a libel, contained in the heading of the report ; or in any other matter, added by any person concerned in the publication ; or in the report of anything said or done, at the time and place of the public and official proceedings, which was not a part thereof." IST. Y. Code Civ. Pro., § 1908. " The publication must be fair, not garbled so as to produce misrepresentation, . . . But the report need not be verbatim, or embrace the entire proceedings. It may be an abridged or condensed statement, and if it is a substantially fair account it is sufficient. . . . The difficulty in the defense of cases of this character may arise from what appears in the caption of a report or comments of a reporter, if any such is given to or made in the article published, which may unduly characterize the nature and effect of the proceeding in its relation to the parties to it or to others in a manner not fully justified, or so as to produce an impression derogatory in character, which the proceedings themselves might not 128 Libel and Slander. furnish. In sncli case tlie publication will not, as matter of law, be deemed within the protection of the privilege. It is not the reporter's judgment of the correctness of his comments and their import, but their accuracy and fairness alone which give immunity. The statute does not give any protection to the publisher in that respect, but leaves him subject to the responsibility which the common law imposes by expressly excluding from the operations of its provisions the heading of the publication, or any other matter not part of the pro- ceeding, added to the report of it." Salishury v. Union & Advertiser Co., 4-5 Hun, 120, 123. Malice, implied and express, in the law of defamation. — " Implied malice, in an action for libel, consists in publish- ing, without justifiable cause, that which is injurious to the character of another. It is a presumption dra\\m by the law from the simple fact of publication. Express malice consists in such a publication from ill-will, or some wrongful motive, implying a willingness or intent to injure, in addition to the intent to do the unlawful act. It requires affirmative proof beyond the act of publishing, indicating ill-feeling or such want of feeling as to impute a bad motive. It does not be- come an issue, when the article is libellous on its face, unless punitive damages are claimed." Krug v. Pitass, 162 IST. Y. 154, 160. " Malice is essential to every action for libel. It has been sometimes divided into legal malice, or malice in law, and actual malice, or malice in fact. These terms might seem to imply that the two kinds of malice are different in their nature. The true distinction, however, is not in the malice itself, but simply in the evidence by which it is established. In all ordinary cases, if the charge or imputation complained of is injurious, and no justifiable motive for making it is apparent, malice is inferred from the falsity of the charge. The law, in such cases, does not impute malice not existing in fact, but presumes a malicious motive for making a charge which is both false and injurious when no other motive Libel and Slandee. 129 appears. Where, howeA'er, the circumstances show that the defendant maj reasonably be snpposed to have had a just and worthy motive for making the charge, then the law ceases to infer malice from the mere falsity of the charge, and requires from the plaintiff other proof of its existence. It is actual malice in either case ; the proof only is different." Lewis V. Chapman, 16 K Y. 369, 372. Is the falsity of the libel evidence of malice sufficient to support punitive damages? — " The general rule is that in an action for libel, proof by the plaintiff tending to establish the falsity of the alleged libellous publication is evidence of malice, and if such evidence is introduced, a question for the jury is presented whether the malice is of such a character as to call for punitive damages, and that question is not to be withdrawn from them because the defendant gives evidence which tends to show that there was no actual malice." Crane V. Bennett, 177 K Y. 106, 116. Commenting on this statement in Hume v. Kusche, 42 Misc. 414, 418-421, Gajmor, J., very pertinently says: " Scientific lawyers have always understood, and still under- stand, that an unprivileged libel per se is in a civil action presumed by the law to be false, instead of the plaintiff beiiig under the necessity of proving it false ; and the law has never been otherwise for an instant. Moreover, unless the defend- ant i^leads its truth as a defence, its falsity stands conceded, and cannot be questioned on the trial ; and if there be such a defence pleaded, the burden is not on the plaintiff to prove the falsity of the libel, but on the defendant to prove its truth. * " Of course the statement that it is for the plaintiff to prove the falsity of the libel in a civil action (which the law already presumes in his favor), is a mere borrowed inad- vertence of the learned Judge writing, and not a decision of the court. 10 130 Libel and Slandek. " This dictum of the plaintiff having to prove the falsity of the libel in a civil action in order to prove malice as a foundation for smart money (and that is the only reason for proving or claiming malice at all in the case of a libel or slander not of a qualifiedly privileged occasion), seems to exist nowhere except in this State. It seems to have first arisen in the Samuels case (9 Hun, 288) in some loose sen- tences of a dissenting opinion which was adopted on appeal by the Court of Appeals (75 N. Y. 604), since which time it has been inadvertently copied several times. The learned Judge who wrote it there may have had his thumb on the page of some good text writer ; but if he had looked again he would have seen that it was of a chapter which did not relate to ordinary actions for libel or slander, like the one before him, at all, but only to actions for qualifiedly privileged libels and slanders. In such cases the presumption of falsity does not exist; there is no presumption either way. The occasion of qualified privilege does away with the presump- tion of falsity, and also raises a presumption of good faith in the defendant which continues though the libel or slander be shown to be false; and therefore the plaintiff has to prove that the libel or slander was both false and malicious in order to defeat the privilege and make out a case, the same as the plaintiff in an action for malicious prosecution has to prove lack of probable cause and malice." In answer to this criticism it may be said, that the only distinction between " malice in law " and " malice in fact " " is not in the malice itself, but simply in the evidence by which it is established. ... It is actual malice in either case; the proof only is different." Lewis v. Chapman, IG N. Y. 369, 372. Privilege a question of law. Express malice a question of fact. — " We there held [referring to Klinclc v. Colby, 40 N. Y. 427], that it is for the court to determine whether the subject-matter to which the alleged libel relates, the interest in it of the author of it, or his relations to it, are such as to Libel and Slander. 131 furnish an excuse; but that the question of good faith, belief in the truth of the statement, and the existence of actual malice, remains for the jury." IlamUton v. Eno, 81 K Y. 116, 122. " Whether within the rule as defined in these cases a libel- lous communication is privileged, is a question of law ; and when upon any trial it has been held as matter of law to be privileged, then the burden rests upon the plaintiff to estab- lish as matter of fact that it was maliciously made, and this matter of fact is for the determination of the jury." Byam V. Collins, 111 K Y. 143, 150. Absolute privilege. Malice immaterial. — " There is an- other class of communications to which much greater immu- nity is attached in the law, and for which a party is pro- tected from any action for damages on account of their defamatory character or effect. These are words spoken or written in the due course of parliamentary or judicial pro- ceedings. In the case of judicial proceedings, . . . , words spoken or written by a party, by counsel, by a judge, a juror or a wdtness, although false, defamatory and malicious, are not actionable if they were uttered in the due course of the proceeding, in the discharge of a duty, or the prosecution or defense of a right, and were pertinent and material to the matter in hand. It is unquestionable that a person who insti- tutes a groundless proceeding, whether civil or criminal, against another, upon false or defamatory charges, is liable to an action for the injury he occasions. But that the action must he for the malicious complaint, indictment or action, and not for the ivords." Perl'ins v. Mitchell, 31 Barb. 461, 468. '' A counsel, or party conducting judicial proceedings, is privileged in respect to words or writings used in the course of such proceedings reflecting injuriously upon others, when such words and writings are material and pertinent to the questions involved; . . . within such limit, the protec- tion is complete, irrespective of the motive with which they 132 Deceit. are used ; bnt such privilege does not extend to matter, having no materiality or pertinency to such questions." Marsh v. Ellsworth, 50 K Y. 309, 311. " In applying this principle the courts are liberal, even to the extent of declaring that where matter is put forth by coun- sel in the course of a judicial proceeding that may possibly be pertinent, they will not so regard it as to deprive its author of his privilege, because the due administration of justice requires that the rights of clients should not be imperiled by subjecting their legal advisers to the constant fear of suits for libel or slander. . . . Any other rule would be an impediment to justice, because it would hamper the search for truth and prevent making inquiries with that freedom and boldness which the welfare of society requires. If coun- sel through an excess of zeal to serve tlieir clients, or in order to gTatify their o^atl vindictive feelings, go beyond the bounds of reason and by main force bring into a lawsuit matters so obviously impertinent as not to admit of discussion, and so needlessly defamatory as to w^arrant the inference of express malice, they lose their privilege and must take the conse- quences. In other words, if the privilege is abused, protec- tion is withdrawn." Youmans v. Smith, 153 'N. Y. 214, 219. DECEIT Nature of wrong. — " We now come to a kind of wrongs in which either a positive wrongful intention, or such ignorance or indifference as amounts to guilty recklessness (in Roman terms either dolus or culpa lata) is a necessary element; so that liability is founded not in an absolute right of the plain- tiff, but in the unrighteousness of the defendant." Pollock on Torts (7th ed.), 272. In the wrongs previously considered, the motive or state of mind of the wrong-doer is practically immaterial in deter- mining the question of legal responsibility, but in an action of deceit, fraudulent intent is the gist of the action. (Koontz V. Kaufman, 31 Mo. App. 397.) Deceit. 133 Deceit defined. — Actionable deceit is the intentional mak- ing of such false representations of material facts by one individual as to induce another, relying on their truth, to act or omit to act to his damage. A common-law action. — -' An action of deceit is a com- mon-law action, and must be decided on the same principles, whether it be brought in the chancery division or any of the common-law divisions ; there being, in my opinion, no such thing as an equital Ic action for deceit." Cotton, L. J., in Arkivright v. Newhold, 17 Ch. Div. 301. Complication with contract. — " A false statement may be the iiiJuceintnt to a contract, or may be part of a contract, and in these capacities may give rise to a claim for the rescis- sion of the contract obtained by its means, or for compensa- tion for breach of the contract or of a collateral warranty. A false statement unconnected with any contract may like- wise create, by way of estoppel, an obligation analogous to contract. And a statement capable of being regarded in one or more of these ways may at the same time afford a cause of action in tort for deceit. " The grounds and results of these forms of liability are largely similar, but cannot be assumed to be identical." Pol- lock on Torts (7th ed.), 273. " I think it important that it should be boriiS in mind that such an action differs essentially from one brought to obtain rescission of a contract on the groimd of misrepresentation of a material fact. The principles which govern the two actions differ widely. "Where rescission is claimed it is only necessary to prove that there was misrepresentation. Then, however honestly it may have been made, however free from blame the person who made it, the contract, having been obtained by misrepresentation, cannot stand. In an action of deceit, on the contrary, it is not enough to establish mis- representation alone. It is conceded on all hands that some- thing more must be proved to cast liability upon the defend- 134 Deceit. ant, though it has been a matter of controversy what addi- tional elements are requisite." Lord llerschell in Derry v. Peeh, L. K. 14 App. Cas. 337. Essential elements. — In order to recover in an action for deceit, the plaintiff must prove : 1. That the defendant made false representations of ma- terial facts. 2. That the defendant knew, or was culpably ignorant of their falsity. 3. That the defendant intended that the plaintiff should act thereon. 4. That the plaintiff believed and had right to rely upon them as true. 5. That the plaintiff acted thereon to his damage. " There is no doubt or question as to what elements are requisite to sustain an action for false pretences. The essen- tial constituents of such an action have been understood from the time such actions were first maintained. They are tersely stated by Church, Ch. J., in Arthur v. Grisivold, 55 N. Y. 400, viz. : ' Representation, falsity, scienter, deception and injury.' There must have been a false representation, known to be such, made by the defendant, calculated and intended to influence the plaintiff, and which came to his knowledge, and in reliance upon which he, in good faith, parted with property or incurred the obligation which occasioned the in- jury of which he complains. All these circumstances must be found to exist, and the absence of any one of them is fatal to a recovery." Brachett v. Griswold, 112 IvT. Y. 454, 467. False representations of material facts.— In a legal sense, a representation is any clear impression of fact, conveyed by word, act or conduct. To be actionable it must be false, and must purport to state material matter of fact, not mere prom- ises or matter of opinion. "A promise is distinct from a statement of fact, and breach of contract, whether from w^ant of power or of will to per- Deceit. 135 form one's promise, is a different thing from deceit. Again a mere statement of opinion or inference, the facts on which it purports to be founded being notorious or equally known to both parties, is different from a statement importing that certain matters of fact are within the particular knowledge of the speaker." Pollock on Torts (7th ed.), 277. " The learned counsel for the respondent has stated in the broadest and most unqualified terms, as a proposition not to be disputed, ' that no man is liable for the expression of his opinion or judgment.' But this is true only when the opinion stands by itself and is intended to be taken as distinct from any thing else, and where the proposition is found in the books it is so restricted. Thus it is said : ' Matters of opinion, stated merely as such, will not in general form the ground to a legal charge of fraud ' (Leake on Contracts, 355), giving many instances and also exceptions to the rule. State- ments of value have been held insufiicient to sustain an action where, as is said, they were ' mere matters of opinion ' (Simar v. Canaday, 53 N. Y. 298, 306), but at the same time it is shown that under certain circumstances they are to be regarded as affirmations of fact, and then if false an action can be maintained upon them. The same rule applies where A desiring credit of B for a certain amount, the latter asks C as to the solvency of A and he replies, ' he is good, as good as any man in the country for that sum.' Xo doubt this involves opinion, but it is held that if the recommendation was made in bad faith and with knowledge that A was in- solvent, C would be liable (Upton v. Vail, 6 I. R. 181) ; and so as to every representation concerning a matter of fact by which one man is induced to change his position to his injury or the benefit of another. It may be so expressed as to bind the person making it to its truth whether it take the form of an opinion or not, or it may appear that it was not intended to be acted upon. In the latter case no obligation is incurred." Hichey v. Morrell, 102 N. Y. 454, 463. Vague or indefinite statements are not actionable ; ambigu- ous statements may be actionable. 136 Deceit. Silence and artifice. — Silence is not fraudulent unless tlicrc is a legal or an equitable obligation ■ to speak. " There can usually be no fraud in silence, without inten- tional concealment, for it may be pui*ely accidental. Whether the duty to disclose exists in a given case, depends upon the fiduciary or other relation of the parties, the nature of the contract, the degTee of trust reposed, whether expressly or impliedly, the value or nature of the particular fact, the relative knowledge of the contracting parties, and other cir- cumstances of the case." Giiel v. Lomax, 89 Ala. 427. " The general rule is, that a party engaged in a business transaction with another can commit a legal fraud only by fraudulent misrepresentations of facts, or by svich conduct or such artifice for a fraudulent purpose as will mislead the other party or throw" him off from his giiard, and thus cause him to omit inquiry or examination which he would other- wise make. A party buying or selling property, or executing instruments, must by inquiry or examination gain all the knowdedge he desires. He cannot proceed blindly, omitting all inquiry and examination, and then complain that the other party did not volunteer all the information he had. Such is the general rule. But there are exceptions to this rule. Where there is such a relation of trust and confidence between the parties that the one is under some legal or equita- ble obligation to give full information to the other party — information which the other party has a right, not merely in foro conscientiae, but jwris et de jure, to have, then the withholding of such information purposely may be a fraud." Dambmamv v. Schulting, 75 X. Y. 55, 61. Defendant's knowledge of falsity. Intention. — Proving defenchmt's knowledge of the falsity of his representations is often called proving scienter. Fraud may be proved by showing: 1. False representations, knowingly made. 2. False representations, recklessly made. 3. False representations, positively made, when the de- fendant only believed them to be true, without actual knowl- edge. Deceit. 137 4. False representations, made when it was the duty of the defendant to know of their falsity. " Where a party to a contract in making a false represen- tation is honestly mistaken, there is no ingredient of fraud in the case. (Wakeman v. Dalley, 51 X. Y. 27; Marsli v. Falher, 40 id. 5G6, citing Chester v. Comstock in note ; Meyer V. Amidon, 45 id. 169; Oberlander v. Spiess, id. 175.) This rule, however, docs not permit him to make false statements recklessly or without some foundation for belief in them. Before one positively afhrms the existence of a fact, he must proceed upon reasonable inquiry, and have some apparently good ground for his aflirmation." Hammond v. Pennoch, 61 K Y. 145, 150. " The jury were properly instructed, that a statement recklessly made, without knowledge of the truth, was a false statement knowingly made, within the settled rule." Cooper Y. Schlesinger, 111 U. S. 148, 155. " It was formerly understood that, to enable a plaintiff to sustain an action based upon fraudulent Tepresentations, he must prove that the defendant made the representations knowing them to be false, with intent to deceive, and that the plaintiff relied upon them and suffered damage in conse- quence thereof. . . . But a new rule has sometimes been supposed to have been introduced by the decision in the case of Bennett v. Judson, 21 N. Y. 238. The rule, as stated in the head note to that case, is as follows : ' One who, with- out knowledge of its truth or falsity, makes a material mis- representation, is g-uilty of fraud as much as if he knew^ it to be untrue.' This statement of the rule is not accurate. . . . ******** " But since the argument of this case, tbe cases of Meyer V. Amidon, and Oberlander v. Spiess (45 IST. Y. 169, 175) have been published. By these cases the rule applicable to actions of fraud has been relieved of the uncertainty and con- fusion produced by the case of Bennett v. Judson. They lay down the rule that an action founded upon the deceit and fraud of the defendant cannot be maintained in the absence of proof that he believed or had reason to believe at the time 138 , Deceit. he made tliem that the representations made by him were false, and that they were for that reason fraudulently made, or that he assumed or intended to convey the impression that he had actual knowledge of their truth, though conscious that he had no such knowledge." Wakeman v. Dalley, 51 N. Y. 27, 32. "One who falsely asserts a material fact, susceptible of accurate knowledge to be true of his own knowledge, and thereby induces another to act upon the fact represented to his prejudice commits a fraud which will sustain an action for deceit. This is not an exception to, but an application of the principle that actual fraud must be shown to sustain such an action. The purpose of the party asserting his per- sonal knowledge is to induce belief in the fact represented, and if he has no knowledge, and the fact is one upon which special knowledge can be predicated, the inference of fraudu- lent intent in the absence of explanation naturally results." Kountze v. Kennedy, 147 N. Y. 12-1, 130. "An action to recover damages for deceit cannot be main- tained without proof of fraud as well as injury. Actionable deceit cannot be practiced without an actual intention to deceive, resulting in actual deception and consequent loss. But while there must be a furtive intent, it may exist when one asserts a thing to be true which he does not know to be true, as it is a fraud to affirm positive knowledge of that which one docs not positively know. Where a party repre- sents a material fact to be true to his personal knowledge, as distinguished from belief or opinion, when he does not know whether it is true or not and it is actually untrue, he is guilty of falsehood, even if he believes it to be true, and if the statement is thus made with the intention that it shall be acted upon by another, who does so act upon it to his injury, the result is actionable fraud." Uadcock v. Osmer, 153 N. Y. 604, G08. Plaintiff's reliance and action upon representations to his damage. — '' Fraud without damage or damage without fraud will not sustain the action for deceit (3 Bulstr. 95) ; and a Deceit. 139 false and fraudulent representation made hj one party to induce a contract entered into by the other, is not actionable unless the party to whom it was made believed the represen- tation to be true and acted upon the faith of it to his damage. In a legal sense a person is not damaged by a false representation by which he is not influenced. It is incum- bent upon the party claiming to recover in an action for deceit, founded upon false representations, to show that he was influenced by them. It does not require very strong proof to establish it. In most cases it may be inferred from the circumstances attending the transaction. But in all cases it is a fact which should be aven-ed in the complaint, and must be maintained by evidence." Taylor v. Guest, 58 IST. Y. 262, 266. " It is of the very essence of an action of fraud or deceit, that the same should be accompanied by damage, and neither damnum absque injuria, or injuria absque damno, by them- selves constitute a good cause of action." Deobold v. Opper- mann, 111 N. Y. 531, 541. " I think the general rule is that if the facts represented are not matters peculiarly within the party's knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of tiie subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepre- sentations." SchumaJcer v. Mather, 133 N. Y. 590, 596. Who may rely on representations. — Kepresentations may be intended for, — 1. A particular individual. 2. Any one of a class of persons. 3. Any one of the public. 4. One person to communicate to another. " It is not necessary that the false representations should have been made by the defendant personally. If he author- ized and caused it to be made it is the same as though he made it himself. Nor is it necessary that it should have been 140 Malicious Pkosecution. made directly to the plaintiif. If it was made to the public at large for the purpose of influencing the action of any individual who may act upon it, any person so acting upon it and sustaining injury thereby may maintain an action. It is on this ground that promoters or directors of corpora- tions have been held liable for false representations in a pros- pectus or reports, or other papers issued by the corporation with their sanction, by which individuals have been induced to purchase the stock or become creditors of the corporation, and the fact that the false report or prospectus purports to be the act of the corporation and not of the promoters or directors, does not relieve them from personal responsibility." Brackett v. Griswold, 112 N. Y. 454, 467. MALICIOUS PROSECUTION Essential elements. — " To maintain an action for ma- licious prosecution, three facts, . . . , must be estab- lished : — 1. That the prosecution is at an end, and was determined in favor of the plaintiff. 2. The want of probable cause. 3. Malice." Vanderhilt v. MatUs, 5 Duer, 304, 307. " The plaintiff, to maintain the action, must show that the prosecution was instigated by the defendant, that it has been determined in his favor, that there was no probable cause and that the defendant acted from malice." Wass v. Stephens, 128 K Y. 123, 127. Termination. — This signifies such a disposition of the al- leged wa-ongful prosecution that it cannot be reviewed or con- tinued without beginning de novo. "As a general rule, the plaintiff must aver in his declara- tion, and prove on the trial, the determination of the former suit in his favor, . . . The reason for this proof is Malicious Prosecution. 141 obvious, for otherwise he might recover in this action, and still be convicted, or have judgment against him in the former suit." Bump V. Betts, 19 Wend. 421. " The question is, whether the prosecution instituted by the defendant can be said to have been terminated, disposed of, or, as the books usually say, at an end. It is agreed by the books that this is an essential condition, I by no means accede to the doctrine inadvertently advanced by some judges, that all right to prosecute for the ojfense must be tei-minated by a technical acquittal. (See per Buller, J., in Morgan v. Hughes, 2 T. E. 225, 231, 2.) Nor can it be essentially necessary that there should be an adjudication of the magis- trate, or indeed any judicial decision upon the merits, by any court, as seems to be supposed by some. (See Secor v. Bahcocl', 2 Johns. 203; McCormick v. Lisson, 1 Cowen, 715.) The manner in which the prosecution is disposed of, as if it be by compromise, which was the case last cited, may interpose great if not insurmountable obstacles to showing a want of probable cause ; but the technical prerequisite is only that the particular prosecution be disposed of in such a man- ner that this cannot be revived, and the prosecutor must be put to a ncAV one." Clarh v. Cleveland, 6 Hill, 344, 346. Reason of the rule. — " The rule requiring that before an action for malicious prosecution can be maintained the plain- tiff is bound to show a termination of the criminal proceed- ing, has for its foundation, that it cannot be known that the prosecution was unjust or unfounded until it is terminated, and if the action for malicious prosecution were allowed to be maintained before the termination of the criminal proceed- ing, the plaintiff might be found guilty in that proceeding and yet maintain her action for malicious prosecution on the ground that she was not guilty, and that the defendant had no probable cause to believe her guilty ; and thus there might be two conflicting determinations as to the same transaction. It cannot in reason make any difference how the criminal prosecution is terminated, provided it is terminated, 142 Malicious Prosecution. and at an end. . . . The motive of tlie judge or justi?f> in making the discharge is wholly immaterial. The real foundation of the action is the malicious prosecution without probahle cause, and the termination of the criminal proceed- ing is a mere technical matter in no way concerning the merits of the action and is a mere condition precedent to its maintenance." Robbins v. Bobbins, 133 N. Y. 597, 599. Termination: nolle prosequi. — "The prosecution com- plained of in this action as falsely and maliciously made, was a criminal prosecution. The plaintiff avers that the defend- ant falsely accused him of a criminal libel, and that he made the accusation maliciously. The criminal charge resulted in an indictment, and the complaint avers that the prosecution thereof has been tei*minated in plaintiff's favor by the entry of a nolle prosequi, on motion of the district-attorney of the county where the indictment was pending and triable, and with leave of the court; that the motion was made 'after consulting with defendant, and in compliance with his re- quest.' I think this was a sufficient averment of the termina- tion of the criminal charge in favor of the plaintiff. If the action complained of as malicious had been a civil action, an averment that a plaintiff had asked leave of the court to abandon it, and that such leave had been granted, would have been sufficient. The district-attorney acts for the people in criminal cases, except that he must have leave of the court to enter the nolle prosequi. Where this leave is obtained and the order is entered, it is a record promise by the people, that the indictment will be no further prosecuted." Moulton V. Bcecher, 1 Abb. X. C. 193, 234. Termination: appeal from judgment. — "When a party has a final judgment in his favor upon a trial the prosecution is so far terminated that he may sue for malicious prosecu- tion. If an appeal be taken from the judgment, that may furnish a reason for staying the trial of the action for ma- licious prosecution until the decision of the appeal. If the Malicious Prosecution. 143 judgment should be affirmed, then it could not be held that the action was prematurely commenced ; if it should be re- versed, the action would then again be pending, and that fact would furnish a defense. A party commencing such an action, while an appeal from the decision in his favor is pend- ing, simply takes the risk of an adverse decision upon the appeal and thus suffering defeat in the action." Marks v. Townsend, 97 X. Y. 590, 595. What is probable cause. — " Probable cause is the knowl- edge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. The want of probable cause does not mean the want of any cause, but the want of any reasonable cause, such as would persuade a man of ordinary care and prudence to believe in the truth of the charge. Probable cause does not necessarily depend upon the actual guilt of the person prosecuted, but may rest upon the prosecutor's belief in his guilt when based on reasonable grounds. One may act upon what appears to be true, even if it turns out to be false, provided he believes it to be true and the appearances are sufficient to justify the belief as reasonable. Belief alone, however sincere, is not sufficient, for it must be founded on circumstances which make the belief reasonable. If probable cause exists, it is an absolute protection against an action for malicious prosecu- tion, even when express malice is proved. Thus an innocent person may be prosecuted unjustly and subjected to expense and disgrace with no right to call the prosecutor to account, provided he acted upon an honest and reasonable belief in commencing the proceeding complained of. Peace and good order exact this hardship from the individual for the benefit of the people at large, so that citizens may not be prevented by the fear of consequences from attempting to assert their own rights or to vindicate the cause of public justice by an appeal to the courts." Burt v. Smith, 181 N. Y. 1, 5-6. l^.^**-**** <: 144 Malicious Peosecution. When facts must be known. — ''A groundless suspicion, unwarranted bv the conduct of the accused, or by facts known to the accuser, when the accusation is made, will not exempt the latter from liability to an innocent person for damages for causing his arrest." Carl v. Ayers, 53 N. Y. 14, 17. Mere belief. — " "Where the defendant in an action for ma- licious prosecution, for causing the arrest of the plaintiff on a criminal charge was in fact the prosecutor, his mere belief that the plaintiff was guilty is not probable cause for the prosecution, if he acted negligently or irrationally, and upon suspicion not warranted by facts, or by appearances which would lead a prudent man to suppose the plaintiff guilty. A real belief and reasonable grounds for it must concur to afford a justification. Good faith alone is not suflicient." Farnam v. Feeley, 5G iST. Y. 451, 455. Conviction. — '' The law^ so far encourages criminal com- plaints as to protect the complainant against a civil action for damages in case the criminal proceeding fairly conducted results in the conviction of the person charged with crime. Such conviction fairly obtained, without fraud or conspiracy, is held to be conclusive' evidence of probable cause." Rob- bins V. Bobbins, 133 :N'. Y. 597, 599. '' In Whitney v. Peclcham, 15 Mass. Eep. 243, it appeared that the plaintiff, after being convicted before a justice of an assault and battery, appealed to the common pleas, where he was acquitted ; yet held, that he could not maintain an action for malicious prosecution, the conviction being con- clusive evidence of probable cause. The doctrine of this case underwent an able and searching examination in Burt v. Place, 4 Wend. 591, where it was adjudged that the action might be maintained, under such circumstances, notwith- standing the decision of the justice, provided there was proof of malice and want of probable cause." Clark v. Cleveland, 6 Hill, 344, 346, note (a). Malicious Prosecution. 145 In Nicholson v. Sternberg, 61 App, Div. 51, it was held that a judgment of conviction, reversed on appeal, is prima facie evidence of probable cause. Nor is it conclusive " where the malicious prosecution com- plained of arises out of proceedings on attachment in tho absence of the party defendant, in which no opportunity is afforded him to defend the suit. A judgment against him under such circumstances, cannot be deemed conclusive evi- dence of probable cause, or want of malice, as in cases of personal service of process." Bump v. Betts, 19 Wend. 421, 422. Acquittal or discharge.— " Upon the question of what is a sufficient showing in the first instance of the want of prob- able cause, the decisions of the American courts are not quite uniform. As the conviction of a person by an examining magistrate of an offense charged upon him has been almost universally held to be conclusive evidence of probable cause, it would seem reasonable that the converse of the proposition must hold, that his acquittal should be conclusive evidence of the want of probable cause ; but such is not tha law, " Our courts, however, seem to be settling down to the rule that the discharge of a person accused of crime by a commit- ting magistrate, or the ignoring of like charges by a grand jury, and similar adjudications, are prima facie evidence of the want of probable cause, sufficient to cast upon the op- posite party the burden of proving the contrary. On the other hand the waiving of a preliminary examination, the disagreement of a jury, their hesitation in finding a verdict of acquittal, requiring the accused to enter into a recog- nizance by an examining magistrate, the finding of an indict- 'Ja^^-^^^'-*-^ ment by a grand jury, have been held to be prima facie ._ ^_ , - evidence of the existence of probable cause." ISTewell on .^ yvw;,j« Malicious Prosecution, 289-290. • . " The discharge of the plaintiff, by the examining magis- trate, is prima facie evidence of the want of probable cause, 10 146 Malicious Prosecution. sufficient to throw upon the defendant the burden of proving the contrary." 2 Greenleaf, Ev., § 455. " The immediate dismissal of the complaint by the magis- trate is prima facie evidence that it [the charge] was made without cause." Gould v. Sherman, 10 Abb. Pr. 411, 412. " In an action for malicious prosecution, the want of prob- able cause will not be inferred from the mere failure of the prosecution, nor from a mere acquittal upon trial, but the weight of authority seems to be in accordance with the ruling, that proof that the plaintiff was discharged by the examining magistrate, for want of probable cause to believe him guilty, makes a prima facie case for the plaintiff in this respect, so that the defendant is called upon to offer proof to the con- trary." Frost V. Holland, 75 Me. 108, 112. " To recover in this class of cases, there must be malice on the part of the person starting the prosecution, and a want of probable cause for believing that the accused is guilty of the offense charged ; nor is a want of probable cause shown by the acquittal of the accused. If such were the i-ule, but few, if any, would dare to make any effort to enforce the criminal laws of the State. To do so, would involve the prosecuting witness, wherever the prosecution failed, in vexatious litiga- tion and loss, and none could be expected to incur such hazards. Prosecuting witnesses must be protected where they act in good faith on facts and circumstances which are such as to induce a belief of guilt in the mind of a reasonable person. This has ever been the rule of the law. The issue, then, for the jury to try is not the guilt of the plaintiff. If the defendant acted in good faith, on evidence, whether true or false, which is sufficient to create a reasonable belief that the accused was guilty of the offense, he is protected." An- derson V. Friend, 85 111. 135, 136. " In such an action, it is necessary to give some evidence of the want of probable cause. It is insufficient to prove a mere acquittal ; that, alone, is not prima facie evidence of the want of probable cause." Vanderhilt v. Mathis, 5 Duer. 304, 307. Malicious Pkosecutiox. 147 " This result [acquittal] is not prima facw evidence of the want of probable cause." Scott v. Simpson, 1 Sand. 601, 605. Advice of magistrate.—'' The defendant insists that he is not responsible, because he stated the case to a magistrate, who thereupon issued the warrant ; or, in other words, he is responsible for the truth of his statements to the magistrate, but not for the legal conclusions of that official therefrom, citing Thaule v. Krekeler (81 IST. Y. 428); Anderson v. Hoiv (116 id. 336). Since the decision in Hazzard v. Flury (supra), I understand the rule to be that advice of counsel and the like is not a complete defense. In this case, where the question of probable cause was for the court, the advice of counsel or of magistrate is of no importance on that question." Parr v. Loder, 97 App. Div. 218, 221. Advice of counsel.— Mr. Bigelow (Torts, 7th ed., p. 103) says : "If the prosecutor takes the advice of a practising lawyer upon the question whether the facts within his knovrl- edge are such as to justify a complaint assuming that he has fully, fairly, and honestly stated such facts, and acts bona fide upon the advice given, he will be protected even though the counsel gave erroneous advice. That is, he will be pro- tected, though he might not have been in possession of facts such as would have justified a prosecution without the ad- vice." But the Xew York Court of Appeals says : " The fact that his counsel may have advised him [that certain acts constituted larceny] . . . , while proper upon the ques- tion of malice, does not form the basis for a finding of fact that he [the defendant] had probable cause to believe the plaintiff guilty of larceny. Probable cause may be founded on misinformation as to the facts, but not as to the law. *' The facts within his knowledge did not indicate that a crime had been committed. They did not tend to cause a man with knowledge of the law to suspect or believe that it had been violated, and the defendant was bound to know the law." (Hazzard v. Flurij, 120 ^^. Y. 223, 227.) 148 Malicious Prosecution. Granting a temporary injunction. — "As an order for a temporary injunction requires but a prima facie case, we think it is only prima facie evidence of probable cause." Burt V. Smith, 181 N. Y. 1, 8. Malice. — • The malice required to be proved in actions for malicious prosecution is not malice in its restricted, popular signification, but malice in its enlarged, legal sense. " It is well established that the i)laintiff is not required to prove express malice, in the popular signification of the term, as that defendant was prompted by malevolence, or acted from motives of ill will, resentment, or hatred towards tho plaintiff. It is sufficient if he prove it in its enlarged legal sense. ' In a legal sense, any act done willfully and pur- posely, to the f)i"ejudice and injury of another, wdiich is unlawful, is, as against that person, malicious.' (Com. v. Snelling, 15 Pick. 337.) ' The malice necessary to be shown, in order to maintain this action, is not necessarily revenge, or other base and malignant passion. Whatever is done wil- fully and purposely, if it be at the same time wrong and unlawful, and that known to the party, is, in legal contem- plation, malicious.' {Wills v. Noyes, 12 Pick. 324.)" Pul- len. V. Glidden, C6 Me. 202, 204. Malice, but not want of probable cause, may be inferred. — " Proof of malice will not excuse or supply the want of proof of want of probable cause, neither can the want of probablo cause be inferred from proof of malice, although malice may be inferred from the want of probable cause." Ileyne v. Blair, G2 X. Y. 19, 22. " Unless the evidence . . . given to establish tho want of probable cause, justify the inference of malice, other evidence, in support of it, must bo given." Vanderhilt v. Mathis, 5 Duer, 304, 307. Malice and Vv^ant of probable cause must concur. — " To maintain this action it was incumbent on the plaintiff to prove that he had been sued by the defendant, as alleged, ma- Malicious Prosecution. 149 liciously and without probable cause ; for if there was prob- able cause for such suit, although it was maliciously com- menced, the action could not be sustained. Want of probable cause and malice must concur." Besson v. Southard, 10 N. Y. 236, 239. Probable cause a question of law. Malice a question of fact.— '' The question of malice in this action is for the jury. The want of probable cause is independent of malicious motive, and cannot be inferred, as a necessary consequence, from any degree of malice which may be shown. " In the case of a private suit, probable cause may consist of such facts and circumstances as lead to the inference that the party was actuated by an honest and reasonable convic- tion of the justice of the suit. This question is composed of law and fact ; it being the province of the jury to determine whether the circumstances alleged are true or not, and of the court to determine whether they amount to probable cause. When the matter of fact and matter of law, of which tha probable cause consists, are so intimately blended together as not to be easily susceptible of separate decision, the judge is warranted in leaving the question to the jury; instructing them in the principles and rules of law by which they are to be governed in finding a verdict, and those instructions the jury are bound to follow. Whether the circumstances al- leged to show probable cause, or the contrary, are true and existed, is a matter of fact; but whether, supposing them true, they amount to probable cause, is a question of law. " What is meant by the expression, that probable cause is a mixed question of law and fact, and when it is proper to submit it to the jury to pass upon, is correctly explained in Masten v. Deyo, 2 Wend. 424. If the facts which are ad- duced as proof of a want of probable cause are controverted, if conflicting testimony is to be weighed, or if the credibility of witnesses is to be passed upon, the question of probable cause should go to the jury, with proper instructions as to the law\ But where there is no dispute about facts, it is the duty 150 Malicious Prosecution. of the court, on the trial, to apply the law to them." Besson V. Southard, 10 N. Y. 236, 239. See, also, Ileyne v. Blair. 62 N. Y. 19, 22 ; Fagnan v. Knox, 66 N. Y. 525, 527 ; Wass V. Stephens, 128 K Y. 123, 127. " The existence of malice is always a question exclusively for the jury. It must bo found by them, or the action can- not be sustained. Hence it must always be submitted to them to find whether it existed. The court has no right to find it, nor to instruct the jury that they may return a verdict for the plaintiff without it. Even the inference of malice from the want of probable cause is one which the jury alone can draw." Stewart v. Somiehorn, 98 U. S. 187, 193. Abuse of process. — " There is no doubt that an action lies for the malicious abuse of lawful process, civil or criminal. It is to be assumed, in such a case, that the process was law- fully issued for a just cause, and is valid in form, and that the arrest or other proceeding upon the process was justifi- able and proper in its inception. But the grievance to be redressed arises in consequence of subsequent j^roceedings. For example, if after an arrest upon civil or criminal process the person arrested is subjected to unwarrantable insults and indignities, is treated with cruelty, is deprived of proper food, or is otherwise treated with oppression and undue hard- ship, he has a remedy by an action against the ofticer, and against others who may unite with the officer in doing the wrong." ^Yood v. (graves, 144 Mass. 365, 366. " It has been repeatedly held by the courts of this and most of the other States of the Union, that a civil action may be maintained to recover the damages sustained by the abuse or misuse of the process of the court. As where a party wrongfully and wilfully sues out an execution on a judgment which he knows has been paid and satisfied, and whereby tho property of the defendant is taken and sold. {Brown v. Feeier, 7 Wend. 301.) Entering up a judgment and suing out execution for a claim already satisfied. {Barneit v. Reed, 51 Penn. St. 190.) Suing out an attachment for an Malicious Prosecutiois. 151 amount greatly in excess of the debt. (Savage v. Brewer, 16 Pick. 453.) Causing an arrest for more than is due. (Jenings v Florence, 2 C. B. [N. S.] 467.) Levying an execution for an excessive amount. {Sommer v. Wilt, 4 S. & R. 19.) Causing an arrest when a party cannot procure bail, and keeping him imprisoned until he is compelled to surrender property to which the other is not entitled. (Grainger v. Hill, 4 Bing. jST. C. 212.) Where a person is induced by fraud to come into the jurisdiction of the court and is then sued, although upon a perfectly valid cause of action. (Blade v. Joseph, 5 Daly, 187.) Where service of process is accomplished by unlawfully breaking into a dwell- ing house, although the party at whose instance the service was made has a good cause of action against the person served. (People v. Huhhard, 24 Wend. 369.)" Paid v. Fargo, 84 App. Div. 9, 14. Termination not a condition precedent. — "The action here under review is not one for false imprisonment, malicious prosecution, or the special action authorized by section 1900 of the Code of Civil Procedure, although it possesses some of the features of each of those actions ; it is one I think for an abuse of process, something rarely brought to the attention of the courts, except in connection with actions for false im- prisonment or malicious prosecution, but for which a separate action will lie, " The leading English case upon the subject is that of Grainger v. Hill, 4 Bing. N. C. 212, w^here the owner of a vessel was arrested on civil process, and the officer, acting under the direction of the plaintiffs in the suit, used the proc- ess to compel the defendant therein to give up his ship regis- ter, to which they had no right. He was held entitled to recover damages, not for maliciously putting the process in force, but for maliciously abusing it to effect an object not within its proper scope. ********* 152 Malicious Prosecution. " It is not necessary, as in cases of malicious prosecution, to allege or prove that the proceeding complained of has been terminated." Dishaiv v. \Yadleigh, 15 App. Div. 205, 2.09, 2 ID. The complaint in malicious prosecution and in abuse of process. — • " In an action for malicious prosecution it is a part of the cause of action that there was no probable cause for the prosecution, and that its institution was malicious ; consequently these facts must be averred and proved. {Cousins V. Swords, 14 App. Div. 338; affd. on the opinion below, 1G2 K Y. 625.) In the action for abuse of process the gravamen of the complaint is the using of the process for a purpose not justified by law, and to effect an object not within its proper scope; and in such action the facts, may appear fro m wh ich is f airly^educible the inference of wrong- ful and malicious use, and the pleading is sufficient if it aver facts out of which the inference arises." Foy v. Barry, 87 App. Div. 291, 294. Abuse of process distinguished from malicious prosecu- tion. — " Though there is a resemblance betwixt an action for the malicious prosecution of a criminal charge, and an action for a malicious arrest or holding to excessive bail in a suit, the cases are not entirely parallel. In a criminal prosecution, want of probable cause must be combined with malice; but in a civil suit the existence of a cause of action is not a defense to a suit for an excessive use of the process. . . . The gist of the action, in the one case, is the origination of a malicious and groundless prosecution, which ipso facto put the party in peril ; in the other, it is not the origination of an action, but an abuse of the process consequent on it." Her- man V. Brookerhoff, 8 Watts, 210, 241. " There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is wliere the party employs it for some unlawful object, not the purpose which it is intended by the law to effect ; in other w^ords, a perver- sion of it. Thus, if a man is arrested, or his goods seized in order to extort money from him, even though it be to pay a Malicious Prosecution. 153 just claim other than that in suit, or to compel him to give up possession of a deed ot other thing of value, not the legal object of the process, it is settled that in an action for such malicious abuse it is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without reasonable or probable cause : Grainer v. Hill, 4 Bing. ]^. C. 212. It is evident that when such a wrong has been perpetrated, it is entirely imma- terial whether the proceeding itself was baseless or other- wise. " On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated to be gained by it other than its proper effect and execution. As every man has a legal power to prosecute his claims in a court of law and justice, no matter by what motives of malice he may be actuated in doing so, it is necessary in this class of cases to aver and prove that he has acted not only maliciously, but without reasonable or probable cause. It is clearly settled also, that the pro- ceeding must be determined finally before any action lies for the injury; because, as it is said in Arundell v. Tregono, Yelv. 117, the plaintiff will clear himself too soon, viz., before the fact tried, which will be inconvenient ; besides, the two determinations might be contrary and inconsistent." Mayer v. Walter, 6-1 Pa. St. 283, 285. Malicious prosecution in civil actions. — " The authorities are in conflict as to whether a petition states a cause of action which merely alleges that a civil action brought and prose- cuted maliciously, and without probable cause, has been ter- minated in favor of the defendant, many of the authorities maintaining that no cause of action exists unless such civil process be accompanied by arrest of the person or seizure of the property ; and that the plaintiff in such original action in contemplation of law is sufiiciently punished by the pay- ment of costs. " . . . It is difficult to see why the right of a plaintiff who as defendant has been sued in a civil action maliciouslv 154 Malicious Pkosecution. and without probable cause, and who has been put to great expense in consequence thereof, should be altered or at all affected merely by ihe incident of his property having been attached or his person seized ; . . . And it is clear that the recovery of costs would not, under our practice, reimburse him for his attorney's fees, something which and other inci- dental expenses, he does recover under the English practice." Smilh V. Burrus, 106 Mo. 94, 98. " la Savile v. Boherts, 1 Ld. Raym. 374, Lord Holt laid down the proposition that any one of three sorts of damage would supjoort an action for malicious prosecution, namely, damage to a man's fame, to his person, or to his property. That a prosecution for a crime, which involves the first sort of damage, the bringing of a civil suit with arrest of the per- son, which involves the second, and the bringing of a civil suit with attachment of property, which involves the third, are actionable if induced by malice and without reasonable cause, is universally admitted. But where a civil suit is unaccompanied by arrest of the defendant's person, or attach- ment of his property, it has often, perhaps generally, been held that the law must regard the costs which the defendant recovers as a sufficient recompense, and that he can bring no action for malicious prosecution. " It is generally admitted that some action of this nature lay at common law. But since the statute of Marlbridge (52 Hen. III.), which allowed costs to successful defendants pro [also clamore, no such action has been sustained by the English courts. Those costs apparently include ' the attor- ney's charges for preparing the case for trial in all its parts, the fees of the witnesses and the court officials, and even the honorarium of the barrister who conducted the case in court.' 21 Am. Law Reg. N. S. 370. In this country costs are much more sparingly allowed, and are often far from a recompense for the damage sustained. It is on this ground that many of the American courts have allowed the action. Their con- clusion certainly seems logical, and in accord with the gen- eral principle on which the action for malicious prosecution Malicious Prosecution. 155 is based. Manifestly, in the expense to which he is put the defendant suffers damage of a sort covered by Lord Holt's analysis; and if that damage, resulting as a natural conse- quence of the plaintiff's malicious act, exceeds the amount of costs given under a system which makes no attempt at com- plete compensation, the defendant should be allowed to make good the loss by another action. The main argument against allowing it, that it would encourage interminable litigation, hardly seems conclusive. See, for a full discussion of the subject, 21 Am. Law Eeg. K S. 281, 353." IX. Harvard Law Review, 538. " A party who brings an action for malicious prosecution again-t a plaintiff who has been unsuccessful in a civil action, should not be permitted to recover without very clear and satisfactory proof of all the fundamental facts constituting his case. Such actions should not be encouraged. " The costs awarded to a successful defendant in a civil action are the indemnity Avliicli the law gives him for a groundless prosecution. Public policy requires that parties may freely enter the courts to settle their grievances, and that they may do this without imminent exposure to a suit for damages in case of an adverse decision by judge or jury." Fergusoriv. Arnow, 142 ]ST. Y. 580, 583. " In this country the authorities are not agreed upon the doctrine governing such actions ; as may be seen by reference to the cases collated in the x\merican and English Encyclop. of Law (Vol. 14, p. 32). But I am prepared to assume that there may be satisfactory authority fnr holding that wdiere a party has been subjected to some special, or added, grievance, as by an interference with his person, or property, in a civil action, brought without probable cause, he may maintain a subsequent action to recover any legal damage, which he avers, and is able to show, to have been occasioned to him. The action generally is not to be viewed with any favor ; for, in theory of law, the costs awarded by the statute to the successful defendant are an adequate compensation to him for all damages." Willard v. Holmes, 142 N. Y. 492, 495. See, also, Paul v. Fargo, 84 App. Div. 9, 11. 156 Tkespass. Distinction between false imprisonment and malicious prosecution. — In false imprisounient, the gist of tlie action is imlawinl detention. Mot© must be pFOved in an action for malicious pi-osecution. In an action for false imprisonmenr, the plaintifl" need not establish malice or want of probable cause. These elements may affect exemplary damages, but not the right of action. " The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a magisti-ate, one makes- a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial ofHcer. The opinion and the judgment of a judicial officer are interposed between the charge and the imprisonment." Austin v. Dawling, L. R 5 C. P. 5-iO. " An action for malicious prosecution can only be sup- ported for the malicious prosecution of some legal proceed- ing, before some judicial officer or tribunal. If the pro- ceedings commenced are extra-judicial, the remedy is trespass, and not an action on the case for malicious prosecu- tion." Turpin. v. Bemy, 3 Black, 210. TRESPASS Duty regarding property. — One of the three principal duties with which the law of torts is concerned, is the duty to respect the propei'ty of others. The common law recog- nized this duty as absolute, but based its remedies for viola- tion upon possession rather than ownership. Common-law rights and remedies possessory. — At com- moTL law^, " the forms of action brought not Ownership but Possession to th-e front in accordance with a habit of thought Teespass. 157 whicli, strange as it may now seem to us, found the utmost difficulty in conceiving rights of property as having full ex- istejice or being capable of transfer and succession unless in. close connexion with the physical control of something which could be passed from hand to hand, or at least a part of it delivered in the name of the whole. An ov.Tier in possession was protected against disturbance, but the rights of an owner out of possession were obscure and weak. . . . An owner who had neither possessioji nor the immediate right to possession could redress himself by a special action on the case, which did not acquire any technical name." Pollock on Torts (7th ed.), 334. Trespass defined. — '^ Trespass, in its strict and technical sense, is a wrongful entry upon or taking of real or personal property, of a corporeal and tangible nature." Hilliard on ToTts, II., 71. " Trespass, in its largest and most extensive sense, signi- fies any transgression or offense against the law of nature, of society, or of the country in which we live; whetlier it relates to a man's person, or his property. Therefore beating another is a trespass ; for which ... an action of tres- pass vi et armis in assault and battery will lie ; taking or detaining a man's goods are respectively trespasses; for which an action of ti'espass vi et armis, or on the case in troTer and conversion, is giTcn by the law ; , . . and, in general, any misfeasance, or act of one man whereby another is injuriously treated or damnified, is a transgression or tresjiass in its largest sense ; for which . . . whenever the act itself is dii"eetly and immediately injurious to the person or property of another, and therefore necessarily ac- companied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought. " But in the limited and confined sense ... it signi- fies no more than an entry on another man's ground without a lawful authority, and doing some damage, however in^e^on- siderable, to his real property. For the right of vievm and 158 Trespass. tuum, or property in lands, being once established, it follows as a necessary consequence, that this right must be exclusive ; that is, that the owner may retain to himself the sole use and occupation of his soil ; every entry therefore thereon, without the o^\Tier's leave, and especially if contrary to his express order, is a trespass or transgression." 3 Blackstone Com. 208. " Trespass may be conmiitted by various kinds of acts of which the most obvious are entry on another's land (trespass quarc clausum frcgii), and taking another's goods (trespass de bonis asportatis). Notwithstanding that trespasses pun- ishable in the king's court were said to be vi et armis, and were supposed to be punishable as a breach of the king's peace, neither the use of force, nor the breaking of an enclosure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable trespass. It is likewise immaterial, in strictness of law, whether there be any actual damage or not. ' Every in- vasion of private property, be it ever so minute, is a tres- pass.' " Pollock on Torts" (7th ed.), 339. Trespass upon land. — " To maintain trespass quare clau- sum frcglt, the plaintiff must have the actual or constructive possession of the premises. The gist of the action is the in- jury to the possession. If the premises are occupied, the action must be brought by the party in possession ; if unoc- cupied, by the party having the title and the right to the possession. Tlic oA\nior cannot maintain the action where the land is in the occupancy of his tenant. The trespass is a dis- turbance of the tenant's possession and he alone can bring the action." Halliganv. Chicago & B. I. E. Co., 15 111. 558, 560. Constructive possession. — Action of trespass, alleged to have been committed on lots 107 and 108, in a patent of land known as " Glenn's patent." Trespass. 159 " Only a small portion of each lot was cleared, and the plaintiff had occupied and cultivated the cleared portions for many years ; the balance, the larger part of each lot, was uninclosed woodland. It was upon this part that the alleged trespasses were committed. As the plaintiff was not in the actual possession of the uninclosed woodland, he could re- cover only by showing a valid title or constructive pos- session. To show a valid title, he should have proved a con- veyance to him sufficient to vest in him such a title. To show constructive possession, without a valid title, he should have proved that he claimed title to the whole lot under a written instrument which purported to give him title to the whole, and was, therefore, sufficient to give him color of title to the whole, and that he was in the actual possession of a part." Edwards v. Noyes, 65 I^. Y. 125, 126. The enclosure. — "Every entry upon land in the occupa- tion or possession of another constitutes a trespass, in respect of which an action for damages is maintainable, imless the act can be justified. If a man's land is not surrounded by any actual fence, the law encircles it with an imaginary en- closure, to pass which is to break and enter his close. The mere act of breaking through this imaginary boundary con- stitutes a cause of action, as being a violation of the right of property, although no actual damage may be done." Ad- dison on Torts, 360. Justifiable entry. — '^An entry upon land, or a taking of goods, is justifiable when effected either (1) by license or consent of the party, or (2) by license of the law; a license being a mere permission to do what would otherwise be un- lawful, and not a property right. The term ' license or con- sent of the party,' as here used, has reference to cases in which there is nothing beyond an actual consent, either in answer to a request for permission, or by specific or general invitation by the possessor; as e. g. in the case of a shop- keeper. . . . The term ' license of the law ' has refer- loO Trespass. ence to cases in which a permission is given regardless of the will of the owner or occupant, including cases in which, in point of fact, there mav at the same time be a license of the party, as for instance the case of an innkeeper who both invites and, generally speaking, must receive guests ; enough that the license is paramount to the will of such person." Bigelow on Torts (Tth ed.), 237. '' The right to land is exclusive; and every entry thereon, without the owner's leave, or the license or authority of law, is a trespass. (3 Bl. Com. 209; 18 John. 385.) There is a variety of cases w^here an authority to enter is given by law ; as to execute legal process ; to distrain for rent ; to a landlord or reversioner, to see that his tenant does no waste, and keeps the premises in repair according to his covenant or promise ; to a creditor, to demand money payable there ; or to a person entering an inn for the purpose of getting re- freshment there. (3 Black. Com. 212 ; 1 Cowen^s Tr. 411.) In some cases, a license will be implied ; as if a man make a lease, reserving the trees, he has a right to enter and show them to the purchaser. (10 Co. 46.) Where the owner of the soil sells the chattel being on his land. As if he sell a tree, a crop, a horse, or a fanning mill, which remain within his close ; lie at the same time passes to the vendee, as in- cident to such sale, a right to go upon the premises and take away the subject of his purchase, without being adjudged a trespasser. (1 Cowen's Tr. 307; Bac. Abr. Trespass F; 11 East, 366; 2 Eoll. Abr. 507 m. n. 1.) . . . In some cases, the motive will excuse the entry. If J. S. go into the close of J. X. to succor the beast of J. N., the life of which is in danger, an action of trespass will not lie; because, as the loss of J. N., if the beast had died, would have been irremediable, the doing of this is lawful. But if J. S. go into the close of J. N. to prevent the beast of J. N. from being stolen, or to prevent his com from being con- sumed by hogs, or spoiled, the action of trespass lies; for the loss, if either of those things had happened, would not Trespass. 161 have been irremediable. (Bac. Abr. Trespass F.) And if a stranger chase the beast of A,, which is damage feasant therein, ont of the close of B., trespass will lie; for by doing this, although it seem to be for his benefit, B. is deprived of his right to distrain the beast. (Bro. Tresp. pi. 421 ; Keilw. 46, 13.) '' In some cases the entry will be excused by necessity. As if a public highway is impassable, a traveler may go over the adjoining land. (2 Show. 28; Lev. 234; 1 Ld. Eaym. 725.) . . . So if a man who is assaulted, and in danger of his life, run through the close of another, trespass will not lie, because it is necessary for the preservation of his life. (Year Book, 37 H. 6, 37, pi. 26.) If my tree be blown down and fall on the land of my neighbor, I may go on and take it away. (Bro. Tres. pi. 213.) And the same rule prevails where fruit falls on the land of another. {Mil- ler V. F aw dry, Latch. 120.) But if the owner of a tree cut the loppings so that they fall on another's land, he cannot be excused for entering to take them away, on the ground of necessity, because he might have prevented it. (Bac. Abr. Trespass F.) "... But it is well settled that where there is neither an express nor an implied license, nor any such legal ex- cuse as is above stated, a man has no right to enter upon the land of another for the purpose of taking away a chat- tel being there, which belongs to the former. The mere fact that the plaintiff owns the chattel, gives him no au- thority to go upon the land of another to get it." Newhirh V. SaUer, 9 Barb. 652, 654. Not an action to try title. — "At common law, it is not properly an action to try titles, and the question of title does not necessarily arise. It may, however, and often does, where the real ownership is in dispute, and it becomes ma- terial to show in whom the rightful possession is. . . . But where the matter is not regulated by statute, the decision of an action of trespass settles nothing in regard to the title 11 162 Trespass. beyond the action tried." Chandler v. Walker, 21 N. H. 282, 285. " This action was originally brought by the plaintiff's testator, . . . , to recover damages in the sum of $55 for an alleged trespass by the defendant upon the plaintiff's land. " , . . The defendant made no claim of title to any part of the land which the plaintiff alleged that he owned. . The general denial in the answer put in issue only the fact of plaintiff's possession and a wrongful entry by the defendant. It did not necessarily raise any issue with respect to the title to land. The action involved no ques- tion save that which the ordinary action of trespass always involves, namely, an injury to the plaintiff's possession. A general denial to the complaint which avers possession or ownership or both in the plaintiff, and a wrong- ful entry by the defendant does not necessarily put the plaintiff to proof of title or require such proof from the de- fendant. An action based upon such pleadings is generally possessory in its nature, and may be tried and determined irrespective of any question of title." La Rue v. Smith, 153 N. Y. 428, 429. Trespass ab initio. — " It was decided in The Six Carpen- ters' Case, 4 Co. 290, that where an authority to enter upon the premises of another is given hy law, and it is subse- quently abused, the party becomes a trespasser ah initio; but where such authority or license is given hy 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, ho cannot punish for that which was done by his own authority. Whether this is not a dis- tinction without a difference of principle, it is not necessary Trespass, IGo 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 every thing done by the abuse of that authority, and leave the abuser as if he had done everything without 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 rea- son why the law should interpose to make void everything done by such abuse, because it was the man's folly to trust another with an authority who was not fit to be trusted there- with." Allen V. Crofoot, 5 Wend. 506,^ 509. See, also, Adams v. Rivers, 11 Barb. 390. Waste. — Waste is an injury which tends to destroy or lessen the value of the future estate, and is committed or permitted by the owner of the present estate. It differs from trespass in its being committed or permitted by the person actually or constructively in possession, while trespass is committed by strangers and is an injury to the possession itself. " Section 1665 of the Code of Civil Procedure provides that: " ' A person, seized of an estate in remainder or reversion, may maintain an action founded upon an injury done to the inheritance, notwithstanding an inter\'ening estate for life or for years.' " The statute provided that ' A person, seized of an estate in remainder or reversion, may maintain an action of waste or trespass for an injury done to the inheritance, notwith- standing an intervening estate for life or years.' (1 R. S. 759, § 8.) " Under the Code, the words ' of waste or trespass for ' are omitted, and the words ' founded upon ' are substituted in their place. The words omitted, as used in the statute, indicated the nature of the action that might be maintained. The leaving of them out of the Code would seem to indicate an intention not to restrict the party injured to such actions, le-l Trespass, but to give him the right to maintain an action founded upon an injury done to his inheritance." Thompson v. M. R. Co., 130 N. Y. 360, 364. Trespass to goods. — Trespass to personal property is also an injury to the right of possession, and intention is imma- terial. " Trespass to goods may he committed by taking pos- session of them, or by any other act 'in itself immediately injurious ' to the goods in respect of the possessor's interest, as by killing, beating, or chastising animals, or defacing a work of art. Where the possession is changed the trespass is an asportation . . . and may amount to the oflPense of theft. Other trespasses to goods may be criminal offenses under the head of malicious injury to property." Pollock on Torts (7th ed.), 342. Trespass to the person. — In the case of Sullivan v. Dun- ham, IGl X. Y. 200, the court held that one who, lawfully and without negligence or Avant of skill, exploded a blast on. his own land and caused a piece of wood to fall upon a per- son lawfu.lly in a public highway, was liable as a trespasser, and that it was not incumbent on the plaintiff to establish negligence or want of skill. After discussing cases of tres- pass upon lands, the court at p. 204 said : " These were cases of trespass upon lands, while the case before us involves trespass upon the person of a human, being, when she was where she had the same right to protection from injury as if she had been walking upon her ov;n land. As the safety of the person is more sacred than the safety of property, the cases cited should govern our decision unless they are no longer the law." And at page 300 the court concluded thus : " We think the courts below were right in holding the defendants liable as trespassers, regardless of the care they may have used in doing the work. The action was a direct invasion of the rights of the person injured, who was lawfully in a publie highway, which was a safe place until they made it otherwise by throwing into it the section of a tree." Conversion. 165 CONVEESIOX Defined. — " Conversion is defined to be an unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights." Laverty v. Snethen, 68 N. Y. 522, 52-i. " To constitute a conversion of goods there must be some repudiation by the defendant of the owner's right, or some exercise of dominion over them by him inconsistent with such right, or some act done which has the effect of destroy- ing or changing the quality of the chattel." V^oodside v. Adams, 40 K J. Law, 417, 431. Intention. — 'While it is true that a wrongful intent is not an essential clement in a conversion (see Boyce v. Brockway, 31 Is. Y. 400), intention may be material in those cases where the act itself is not, in law, tantamount to an asser- tion of title or of a right of ownership, for the purpose of determining whether there has been an assumption of prop- erty or an exercise of dominion over the thing alleged to have been converted. In the case of Pease v. Smith, 61 JST. Y. 477, the defend- ants bought the goods, for which they were sued in con- version, in the course of trade, from one who had no title, and sold them before any claim was made by the ovaiers. The court said (p. 480) : " This exercise of an act of owner- ship or dominion over the plaintiffs' property, assuming to sell and dispose of it as their ovai, was, within reason and the authorities, an act of conversion to their own use. The assumed act of ownership w^as inconsistent with the dominion of the plaintiffs, and this is of the essence of a conversion. Knowdedge, and intent on the part of the defendants, are not material. So long as the defendants had exercised no act of ovmership over the property, and had acted in good faith, a demand and refusal would be necessary to put them in the wrong and to constitute conversion. Until such demand, there is no apparent inconsistency between their possession and the plaintiffs' ovmership. After a sale has been made by the defendants, they have assumed to be the 166 COXVEKSION. o^mcrs, and will be estopped to deny, in an action by the lawful owner, the natural consequences of their act, and to resist an action for the value of the goods." Exercise of dominion. — In conversion the exercise of dominion niav be the result of: (1) A wrongful taking. (2) An illegal use or misuse. (3) A WTongful detention. " Every tortious taking with intent to apply chattels to the use of the taker or some other person than the owner is a conversion." McPartland v. Bead, 11 Allen, 231, 232. '' Every unauthorized taking of personal property, and all intermeddling with it, beyond the extent of the authority conferred, in case a limited authority has been given, with intent so to apply and dispose of it as to alter its condition or interfere with the owner's dominion, is a conversion." Laverty v. Snethcn, 68 N". Y. 522, 524. '* Ordinarily, when one person has the chattel of another, it is his duty to deliver it to the owner or his agent on demand, and if he refuses to do so, his refusal is evidence of a conversion. It is, however, only prima facie evidence and may be explained," Singer Manufacturing Co. v. King, 14 R. I. 511, 512. For whom dominion exercised, is immaterial. — " It is not necessary to a conversion, that there should be a manual taking of the thing in question by the defendant: it is not necessary that it should be shown, that he has applied it to his own use. Does he exercise a dominion over it, in ex- clusion, or in defiance of the plaintiff's right? If he does, that is in law a conversion, be it for his owm, or another person's use." Liptrot v. Holmes, 1 Ga. 381, 391. Acts not implying assertion of title.— "Conversion is based upon the idea of an assumption by the defendant of a right of property or a right of dominion over the thing converted, . . . and it is therefore not every wronrful inter- Conversion. 167 meddling with, or wrongful asportation or wrongful deten- tion, of personal property, that amounts to a conversion. Acts which themselves imply an assertion of title or of a right of dominion over personal property, such as a sale, letting or destruction of it, amount to a conversion, even although the defendant may have honestly mistaken his rights ; but acts which do not in themselves imply an asser- tion of title, or of a right of dominion over such property, will not sustain an action of trover, unless done with the intention to deprive the owner of it permanently or tem- porarily, or unless there has been a demand for the property and a neglect or refusal to deliver it, which are evidence of a conversion, because they are evidence that the defendant in withholding it claims the right to withhold it, which is a claim of a right of dominion over it. " . . . Whether an act involving the temporary use, control or detention of property implies an assertion of a right of dominion over it, may well depend upon the circum- stances of the case and the intention of the person dealing with the property." Spooner v. Manchester, 133 Mass. 270, 273. Asportation. — • "It is not every interference with the property of another which constitutes a conversion. One per- son may remove the property of another person from one place to another place, without being guilty of a conversion of it to his own use. He may do it, without asserting any claim to it, for the benefit of the owner, and admitting his title to it." Webber v. Davis, 4:4: Me. 117, 152. " It is a proposition familiar to all lawyers, that a simple asportation of a chattel, without any intention of making any further use of it, although it may be a sufficient founda- tion for an action of trespass, is not sufficient to establish a conversion, ... In order to constitute a conversion, it is necessary either that the party taking the goods should intend some use to be made of them, by himself or by thoso for whom he acts, or that, owing to his act, the goods are destroyed or consumed, to the prejudice of the lawful owner. 168 Co:sVEKlbiON. But it has never yet been held, that the single act of removal of a chattel, independent of any claim over it, either in favor of the party himself or any one else, amounts to a conversion of the chattel." Lord Abinger in Fouldes V. Willoughhy, 8 M. & W. 540, 544. See, also, Eldridge v. Adams, 54 Barb. 417, and 0. J. Gude Co. v. Farley, 25 Misc. 502. Distinguished from trespass. — " There are two principal differences between the actions of trespass and trover [techni- cally called conversion, and developed, to a large extent, through the common-law action on the case of trover] for personalty appropriated by defendant ; the first of which is, that in trespass there is always either an original wrongful taking, or a taking made wrong-ful ah initio by subsequent misconduct, while in trover, the original taking is supposed or assumed to be lawful, and often the only wrong consists in a refusal to surrender a possession which was originally rightful, but the right to which has terminated. The second is, that trespass lies for any wrongful force, but the wrong- ful force is no conversion where it is employed in recogni- tion of the owner's right, and with no purpose to deprive him of his right, temporarily or permanently." Cooley on Torts (2d ed.), 517. Ancient modes of redress for loss of goods. — " By the an- cient law of England there existed four different modes of redress for the loss of goods: by appeal of robbery (in which restitution as well as punishment for the felony was awarded, .), by writ of replevin, by writ of trespass, and by writ of detinue. But these proceedings were not adequate for relief in all cases. The appeal of robbery availed only when goods had been feloniously taken ; and the writ of re- plevin Avas applicable only in cases of distress." Bigelow's Leading Cases, 420. Replevin. — " By the common law, whenever the goods of one man had been wrongfully distrained by another (not Conversion. 169 being a sheriff or iiis oiBcer acting in execution of the process of a superior court), and the person out of vvhose possession the goods had been taJsen wished to have them restored to him, and to try the lawfuhiess of the seizure, he might get back his goods by giving security to the sheriff of the county to prosecute an action with success, and make out the in- justice of the taking. The proceeding by which this was ac- complished was called a replevin, or the getting back of a chattel taken and detained as a pledge or security, by sub- stituting another pledge in the place of the thing taken." Addison on Torts, 515. Replevin in the cepit and in the detinet. — " The action to recover a chattel, as regulated by the Code of Ci\TLl Pro- cedure, is substantially a substitute for the action of replevin as it had previously existed. At common law and under the Revised Statutes there were two actions of replevin, one in the cepit and one in the detinet. In replevin in the cepit the general issue was tendered by the plea of non cepit, and that put in issue only the taking at the place stated in the declaration. That rule of the common law was copied into the Revised Statutes. (2 R. S. 528, § 39.) Under that plea the defendant could not show title in himself or in a stranger. As it was necessary in such an action for the plaintiff only to show that he was in possession of the property and that the defendant wrongfully took it from his possession, the plea put in issue all plaintiff v>'as, in the first instance bound to prove. Without more, property in a third person could be no defense to such an action. Therefore, in order to defend such an action, the defendant was bound to prove either property in himself, or property in a third person with which he was in some way connected and under which he could justify, and the facts he was bound specially to allege. " But in an action of replevin in the detinet, the general issue was tendered by the plea of non detinet, and that plea at common law put in issue, as well the plaintiff's property 170 Conversion. in the goods as the detention thereof bj the defendant. And it was provided in the Revised Statutes (2 R. S. 529, § 40), that ' when the action is founded on the wrongful detention of the goods, and the original taking is not complained of, the plea of the general issue shall be, that the defendant does not detain the goods and chattels specified in the dec- laration, or any part thereof, in manner and form as therein alleged; and such plea shall put in issue, not only the de- tention of such goods and chattels, but also the property of the plaintiff therein.' It was also provided by the Revised Statutes (2 R. S. 528, § 36), that the action of replevin might be founded upon both the wrongful taking and the detention of the property, in which case it was necessary that the declaration should allege the wrongful taking and also allege that the defendant continued to detain such prop- erty." Griffin v. Long Island Railroad Co., 101 ]^. Y. 348, 352. Replevin distinguished from trespass. — " The whole pro- ceeding of replevin, at common law, is distinguished from that in trespass in this, among other things : that, while the latter is intended to procure a compensation in damages for goods wrongfully taken out of the actual or constructive pos- session of the plaintiff, the object of the former is to pro- cure a restitution of the goods themselves ; and this it effects by a preliminary ex parte interference by the officer of the law with the possession. This being done, the action of re- plevin, apart from the replevin itself, is again distinguished from trespass by this, that, at the time of declaring, the sup- posed wrongful possession has been put an end to, and the litigation proceeds for the purpose of deciding whether he, who by the supposition was originally possessed, and out of whose possession the goods were taken, and to w^hom they have been restored, ought to retain that possession, or whether it ought to be restored to the defendant. * * * As a gen- eral mle it is just that a party in the peaceable possession of land or goods should remain undisturbed, either by the party Conversion. 171 claiming adversely or by the officers of the law until the right be determined and the possession shown to be unlawful. But, where, either by distress or merely by a strong hand, the peaceable possession has been disturbed, an exceptional case arises ; and it may be just that, even before any determi- nation of the right, the law should interpose to replace the parties in the condition in which they were before the act done, security being taken that the right shall be tried, and the goods be forthcoming to abide the decision." Mennie v. BM'e, 6 El. & Bl. 842, 846. Replevin regulated by statute. — Originally, replevin was confined to cases of wrongful taking, but in many of the states the action has been regulated by statute, and made to include cases of wrongful detention as well as wrongful taking. The action, however, is still founded in tort, and the requirements of the statute must be complied with in order to maintain the action. For statutory provisions in this state see iST. Y. Code of Civil Procedure. Detinue. — " The action of detinue lies where a party claims the specific recovery of goods and chattels or deeds and writings, detained from him." Heard's Stephen on PL, 9th Am. ed., 15. " In order, . . . , to ground an action of detinue, which is only for the detaining, these points are necessary: 1. That the defendant came lawfully into the possession of the goods, as either by delivery to him, or finding them; 2. That the plaintiff have a property; 3. That the goods themselves be of some value; and, 4. That they be ascer- tained in point of identity." 3 Blackstone Com. 151. The action of detinue supplied the defect existing in earlier times when replevin was confined to cases of wrongful taking, and was in effect a writ of debt for a chattel. The subsequent extension of the action of replevin, so as to in- clude cases of wrongful detention as well as wrongful tak- ing, robbed detinue of its importance, and it is now scarcely known. 172 Conversion. Trover and conversion. — " This action of trover and con- version was in its original an action of trespass upon the case, for recovery of damages against such person as has found anotlier's goods, and refused to deliver them on de- mand, but converted them to his own use; from vv'hich find- ing and converting it is called an action of trover and coixr version. The freedom of this action from wager of law, and the less degree of certainty requisite in describing the goods, gave it so considerable an advantage over the action of detinue, that by a fiction of law actions of trover were at length, permitted to be brought against any man who had in his possession, by any means whatsoever, the personal goods of another^, and sold them or used them without the consent of the owner, or refused to deliver them when demanded. The injury lies in the conversion : for any man may take the goods of another into possession, if he finds them ; but no finder is allowed to acquire a property therein, unless the owner be forever unknown: and therefore he must not con- vert them to his ovm use, which the law presumes him to do, if he refuses to restore them to the o\^Tier: for which reason such refusal alone is, lyrima facie, sufficient evidence of con- version. The fact of the finding, or trover, is therefore now totally immaterial : for the plaintiff needs only to suggest (as ■words of form) that he lost such goods, and that the defend- ant found them: and if he proves that the goods are his property, and that the defendant had them in his possession, it is sufficient. But a conversion must be fully proved : and then in this action the plaintiff shall recover damages, equal to the value of the thing converted, but not the thing itself: which nothing will recover but an action of detinue or replevin." 3 Blackstone Com. 152. Requisites to maintain conversion.— " The gist of this action is the conversion and deprivation of the plaintiff's property, and not the acquisition of property by the defend- ant. 3 Barn. & Aid. 685, The general requisites to main- tain the action are, property in the plaintiff ; actual pos- session or a right to the immediate possession thereof; and Conversion. 173 a wrongful conversion by the defendant." Esmay v. Fan- ning, 9 Barb. 176, 188. "^ " I have ahvajs understood the rule of law to be that, in order to maintain trover, the plaintiff must have a right of property in the thing, and a right of possession, and that, unless both these rights concur, the action will not lie." Ashurst, J., in Gordon v. Harper, 7 Term R. 9. Possession and property right.— Eight of property and right to possession, being essential to suj^port an action for conversion, may be considered under: 1. General o^vnership and actual possession. 2. General ownership and right to possession. 3. Special ownership and general right to possession. 4. Limited special ownership. A person in whom the general property in a chattel is vested, and who is in actual possession, may maintain an action for conversion against any person who takes such chattel and exercises an act of dominion over it to the ex- clusion of his rights. A person in whom the general property in a chattel is vested, may maintain an action for its conversion, although he never had possession in fact ; but he must show a right to the immediate possession of the chattel. Persons who have a special property in chattels, such as a carrier, a workman for hire, a warehouse-keeper, an auc- tioneer, etc., may maintain an action for conversion against any one who takes and keeps them without color of right so to do. If, at the time of the conversion, the plaintiff was in actual possession, it is no defense for the defendant to show title in a third person, unless he connect himself in some way with the owner of the chattel. See Wheeler v. Laivson, 103 K Y. 40. It has been decided that possession alone is sufficient to enable one to maintain an action for conversion, and in a lead- ing case (see Armory v. Delamirie, 1 Strange, 505), since recognized as authority, the finder of a jewel was held en- 174 Conversion. titled to bring an action for conversion against one, who, having taken the jewel for examination, refused to return it to the finder. Demand and refusal. — Demand and refusal do not in themselves constitute conversion, but they furnish proof of conversion ; hence they are important and essential only in cases of lawful taking, but unlawful detention, of property. In cases of wrongful taking, or of illegal use or misuse of property, they are not essential or necessary, because the wrongful act of the exercise of dominion constitutes con- version. It is, perhaps, safer and better to make demand, and to plead demand and refusal in all cases, in order to be sure of the evidence of conversion, and to avoid being taken by surprise at trial. "A demand and refusal arc not a conversion, but evidence from which it can be inferred. A demand is necessary when- ever the goods have come lawfully into the defendant's pos- session ; unless the plaintiff can prove some wrongful act of the defendant in respect of the goods which amounts to an actual conversion." Esmay v. Fanning, 9 Barb. 176, 189. Remedies. — When personal property has been converted, plaintiff may elect one of the following remedies : 1. Sue to recover the goods {Replevin) ; or 2. Sue for the value of the goods {Conversion) ; or 3. Waive the tort, and sue in assumpsit. Measure of damages. — "An amount sufficient to indem- nify the party injured for the loss, which is the natural, rea- sonable and proximate result of the wrongful act complained of, and which a proper degree of prudence on the part of the complainant would not have averted, is the measure of damages which juries are usually instructed to award, except in cases where punitive damages are allowable," Baker \\ Drake, 53 N. Y. 211, 216. " The value of the chattel, at the time of the conversion, is not, in all cases, the rule of damages in trover ; if the Nuisance. 175 thing be of a determinate and fixed value, it may be the rule, but where there is an uncertainty, or fluctuation attending the value, and the chattel afterwards rises in value, the plain- tiff can only be indemnified by giving him the price of it, at the time he calls upon the defendant to restore it, and one of the cases even carries the value doMTi to the time of the trial." Cortelyou v. Lansing, 2 Caines Cases 200, 216 (Kent, J.). " It is the natural and proximate loss which the plaintiff is to be indemnified for, and that cannot be said to extend to the highest price before trial, but only to the highest price reached within a reasonable time after the plaintiff has learned of the conversion of his stock within which he could go in the market and repurchase it. What is a reasonable time when the facts are undisj)uted and different inferences cannot reasonably be drawn from the same facts, is a ques- tion of law." Wright v. Bwnk of the Metropolis, 110 N. Y. 237, 249. NUISANCE Defined. — Mr. Justice Blackstone defines a nuisance as " anything done to the hurt or annoyance of the lands, tene- ments, or hereditaments of another." 3 Com. 216. " Nuisance is the wrong done to a man by unlawfully dis- turbing him in the enjoyment of his property or, in some cases, in the exercise of a common right." Pollock on Torts (7th ed.), 393. "An actionable nuisance may, . . . , be said to be any thing wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights." Cooley on Torts (2d ed.), 670. "A nuisance, in the ordinary sense in which the word is used, is any thing that produces an annoyance — any thing that disturbs one or is offensive; but in legal phraseology it is applied to that class of wrongs tliat arise from the im- 17G ISTUISANCE. reasonable, unwarrantable or unlawful use by a person of his ovrn. property, real or personal, or from bis own improper, indecent or unlawful personal conduct, working an obstru'> tion of, or injury to, a right of another or of the public, and producing such material annoyance, inconvenience, discom- fort or hurt, that the law will presume a consequent damage.'' Wood on Xuisance (3d ed.), § 1. Distinguished from trespass. — " The distinction between ' nuisance ' and ' trespass ' is, that the former is only a con- sequence or result of what is not directly or immediately in- jurious, but its effect is injurious. . . . Trespass, on the other hand, is a direct and immediate invasion of prop- erty." Angell on Water Courses (7th ed.), § 388. *' The cause of action in trespass is interference with the right of a possessor in itself, while in nuisance it is the in- commodity which is proved in fact to be the consequence, or is presumed by the law to be the natural and necessary con- sequence, of such interference," Pollock on Torts (7th ed.), 399. What constitutes a nuisance. — " It is a general rule that every person may exercise exclusive dominion over his own property, and subject it to svich uses as will best subserve his private interests. Generally, no other person can say how he shall use or what he shall do with his property. But this general right of property has its exceptions and qualifications. Sic utere tuo ut alienum non Iciedas is an old maxim which has a broad application. It does not m.ean that one must never use his own so as to do any injury to his neighbor or his property. Such a rule could not be enforced in civilized society. Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other. For these they are compensated by all the advantages of civ- ilized society. If one lives in the city he must expect to suffer the dirt, smoke, noisome odors, noise and confusion in- cident to city life. Nuisance. 177 " Bnt every person is bound to make a reasonable use of his property so as to occasion no unnecessary damage or annoyance to his neighbor. If he make an unreasonable, un- warrantable or unla^vful use of it, so as to produce material annoyance, inconvenience, discomfort or hurt to his neigh- bor, he Avill be guilty of a nuisance to his neighbor. And the law will hold him responsible for the consequent damage. As to what is a reasonable use of one's own property cannot be defined by any certain general rules, but must depend upon the circumstances of each case. A use of property in one locality and under some circumstances may be lawful and rea- sonable, which, under other circumstances, would be unlaw- ful, unreasonable and a nuisance. To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its en- joyment specially uncomfortable or inconvenient." Camp- bell V. Seaman, 63 X. Y. 568, 576. Injury to property and physical discomfort distin- guished. — ■ " My lords, in matters of this description it ap- pears to me that it is a very desirable thing to mark the differ- ence between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjojTnent, one's quiet, one's personal freedom, any- thing that discomposes or injuriously affects the senses or 'the nerves, whether that may or may not be denominated a nui- sance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should sub- ject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of propertv, and for the benefit of the inhabitants 12 178 Nuisance. of the town and of the public at large. If a man lives iu a street where there are numerous shops, and a shop is opened next door to him, which is carried ou in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighborhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbors, would not apply to circumstances the immediate result of which is sensible injury to the value of the property." St. Helens Smelting Co. v. Tipping, 11 H. L. Cas. 642, 650. With reference to this distinction, Mr. Bigelow (Leading Cases, 4G7) remarks: "Just what the distinction is it is probably impossible to say ; and the distinction itself is diffi- cult to apprehend. The meaning appears to be that the de- gree of harm in an action for personal discomfort must be greater than in an action for an injury to property. This may be a practical rule in a case where both kinds of injury appear; but how will it be where the action is for personal discomfort, and there is no proof of injury to property ? How much discomfort must be endured ?" Standard for bodily discomfort. — '■'■ In densely populated communities the use of property in many ways which are legitimate and proper necessarily affects in greater or less degree the property or persons of others in the vicinity. In such cases the inquiry always is, when rights are called in question, what is reasonable under the circumstances. If a use of property is objectionable solely on account of the noise which it makes, it is a nuisance, if at all, by reason of its effect upon the health or comfort of those who are within Nuisance. 179 hearing. The right to make a noise for a proper purpose must be measured in reference to the degree of annoyance which others may reasonably be required to submit to. In connec- tion with the importance of the business from which it pro- ceeds, that must be determined by the effect of noise upon people generally, and not upon those, on the one hand, who are peculiarly susceptible to it, or those, on the other, who by long experience have learned to endure it without incon- venience; not upon those whose strong nerves and robust health enable them to endure the greatest disturbances with- out suffering, nor upon those whose mental or physical con- dition makes them painfully sensitive to everything about them. " That this must be the rule in regard to public nuisances is obvious. It is the rule as well, and for reasons nearly if not quite as satisfactory, in relation to private nuisances. Upon a question whether one can lawfully ring his factory bell, or run his noisy machinery, or whether the noise will be a private nuisance to the occupant of a house near by, it is necessary to ascertain the natural and probable effect of the sound upon ordinary persons in that house, — not how it will affect a particular person, who happens to be there to-day, or who may chance to come to-morrow. . . . ******** " If one's right to use his property were to depend upon the effect of the use upon a person of peculiar temperament or disposition, or upon one suffering from an uncommon disease, the standard for measuring it would be so uncertain and fluctuating as to paralyze industrial enterprises." Rogers V. Elliott, 146 Mass. 349,^351. Classification. — • Nuisances are public or private according as they affect public or private rights. Public nuisance. — " Public nuisances, strictly, are such as result from the violation of public rights, and, producing no special injury to one more than another of the people, may be said to have a common effect, and to produce a common damage." Wood on Nuisances (3d ed.), § 14. 180 NuisAjsrcE. " A common or public nuisance is that which affects the people and is a violation of a public right either by direct encroachment upon public property or by doing some act which tends to a common injury or by the omitting of that which the common good requires, and w^hich it is the duty of a person to do. Public nuisances are founded upon wrongs that arise from the unreasonable, unwarrantable or unlawful use of property, or from improper, indecent or unlawful conduct working an obstruction or injury to the public and producing material annoyance, inconvenience and discomfort. Founded upon a wrong it is indictable as for a misdemeanor." Dissenting opinion in Bohan v. P. J. G. L. Co., 122 :N. Y. 18, 32. '' A public nuisance is a crime against the order and econ- omy of the state, and consists in unlawfully doing an act, or omitting to perform a duty, which act or omission : " 1. Annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons ; or " 2. Offends public decency ; or " 3. Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, a lake, or a navi- gable river, bay, stream, canal or basin, or a stream, creek or other body of water which has been dredged or cleared at public expense, or a public park, square, street or highway ; or " 4. In any way renders a considerable number of persons insecure in life, or the use of property." N. Y. Penal Code, § 385. Private nuisance. — "Private nuisances are injuries that result from the violation of private rights, and produce dam- ages to but one or a few persons, so that it cannot be said to .be public." "Wood on Nuisances (3d ed.), § 15. " A private nuisance rests upon a different principle [from a public nuisance]. It is not necessarily founded upon a wrong, and consequently cannot be indicted and punished as for an offence. It is founded u2)on injuries that result from XuitiA^TCE. 181 the violation of private rights and produce damages to but one or few persons. Injury and damage are essential eleh ments, and yet they may both exist and still the act or thing producing them not be a nuisance. Every person has a right to the reasonable enjoyment of his own property, and so long as the use to which he devotes it violates no rights of another however much damage others may sustain therefrom, his use is lawful and it is damnum absque injuria." Dissenting opinion in Bohan v. P. J. G. L. Co., 122 ^t. y. 18, 33. A public nuisance may also be a private nuisance. — A public nuisance also becomes a private nuisance when it oc- casions special damage to an individual. In such case a civil, as well as criminal, action will lie. " Every individual who suffers actual damage from a com- mon nuisance may maintain an action for his own particular injury, though there may be others equally damnified. It is essential, however, to allege and prove special damage." Sedgwick on Damages (8th ed.), § 946. " One erecting or maintaining a common nuisance is not liable to an action at the suit of one who has sustained no damage therefrom except such as is common to the entire community, yet he is liable at the suit of one who has ms- tained damage peculiar to himself. Xo matter how numer- ous the persons may be who have sustained this peculiar damage, each is entitled to compensation for his injury. ^^Tien the injury is common to the public and special to none, redress must be sought by a criminal prosecution in behalf of all." Francis v. Schoellhopf, 53 K Y. 152, 154. " If the business is unlawful, the complainant in a private action must show special damage, by which the legitimate use of his adjoining property has been interfered with, or its occupation rendered unfit, or uncomfortable. That the per- petrator of the nuisance is amenable to the provisions aud penalties of the criminal law is not an answer to an action against him by a private person to recover for injury sus- tained, and for an injunction against the continued use of 182 Nuisance. his premises in such a manner. The principle has been long settled that the objection that the nuisance was a common one is not available, if it be shown that special damage wa? suffered." Cranford v. Tyrrell 128 N. Y. 341, 344. Continuing nuisance. — • " In the case of nuisances or re- peated trespasses, recovery can ordinarily be had only up to the commencement of the suit, because every continuance or repetition of the nuisance gives rise to a new cause of action, and the plaintiff may bring successive actions as lor.g as the nuisance lasts. . . . The cause of action, in ca?e of an ordinary nuisance, is not so much the act of the defendant, as the injurious consequences resulting from his act ; and hence the cause of action does not arise until such conse- quences occur, nor can the damages be estimated beyond the date of bringing the first suit. (5 Am. & Eng. Lnc. cf Lav, page 17 and cases in notes.) It has been held, however, where permanent structures are erected, resulting in injury to adjacent realty, all damages may be recovered in a single suit. (Idem, page 20 and cases in note.) But there is much confusion among the authorities, which attempt to distin- guish between cases where successive actions lie, and those in which only one action may be maintained. " . . . Some cases hold it to be unreasonable to assume, that a nuisance or illegal act will continue forever, and there- fore refuse to give entire damages as for a permanent injury, but allow such damages for the continuation of the wrong as accrue up to the date of the bringing of the suit. Other cases take the ground, that the entire controversy should be settled in a single suit, and that damages should be allowed for the whole injury past and prospective, if such injury be proven with reasonable certainty to be permanent in its character. . . . We think upon the whole that the more correct view is presented in the former class of cases." Schlitz Brewing Co. v. Compton, 142 111. 511, 514. " There never has been in this State before this case the least doubt expressed in any judicial decision, so far as I can J^UISANCE. 183 discover, that the plaintiff in such a case is entitled to recover damages only up to the commencement of the action. That such is the rule is as well settled here as any rule of law can be by repeated and uniform decisions of all the courts ; and it is the prevailing doctrine elsewhere. . ******** ^' . . . Here the authorities are entirely uniform that in such an action as this, damages can be recovered only up to the commencement of the action, and that the r-'uie'Jy of the plaintiff is by successive actions for his damages v.:: i the nuisance shall be abated." Ulme v. N. Y. C. & II. B. B. R. Co., 101 K Y. 98, 109, 116. Elevated railroad damage cases: neither nuisances nor trespasses.—'' The elevated railroad cases, . . . , are sui generis. They are governed by principles which apply to no other class of cases. The wrongful acts for which the elevated railroad companies, operating in the city ui Incw York, have been held liable, are technically neither nuisances nor trespasses. They may more correctly be described as wrongful appropriations of the easements which are an in- tegral part of the property of adjoining owners. These wrongful acts, although an invasion of the rights of such owners, were not trespasses, because there was no physical entry or intnision upon their lands, and this for the reason that the ownership of the fee in the streets upon which the elevated railroads were built was in the municipality and not in the adjoining owners. There was no nuisance, in the legal signification of that term, because the railroad companies were expressly authorized by legislative enactment to occupy the streets for that purpose. This express right was coupled with the power of eminent domain so that these corporations could acquire, in condemnation proceedings, the easements of adjoining owners which it might be necessary to destroy or appropriate. The appropriation and destruction of such easements by said corporations, without resort to condemna- tion proceedings, led to the so-called elevated railroad litiga- 184 Nuisance. tion, which for immensity of volume and variety and diffi- culty of questions involved, has no parallel in our jurispru- dence." Bly V. Edison Electric Illuminating Co., 172 N. Y. 1,7. Parties. — Every person who has been especially aggrieved has a right of action, and every person who creates or con- tinues a nuisance is liable. "A person by whom the nuisance has been erected, and a person to whom the real property has been transferred, may be joined as defendants in such an action." iST. Y. Code Civ. Pro., § 1661. " It is not the general rule that an owner of land is, as such, responsible for any nuisance thereon. It is the occupier, and he alone, to whom such responsibility generally and prima facie attaches. . . . The owner is responsible if he creates a nuisance and maintains it ; if he creates a nui- sance and then demises the land with the nuisance thereon, although he is out of occupation ; if the nuisance was erected on the land by a prior owner, or by a stranger, and he know- ingly maintains it ; if he has demised premises and covenanted to keep them in repair, and omits to repair, and thus they become a nuisance ; if he demises premises to be used as a nuisance, or for a business, or in a way so that they will necessarily become a nuisance. "A grantee or devisee of premises upon which there is a nuisance at the time the title passes, is not responsible for the nuisance until he has had notice thereof, and in some cases until he has been requested to abate the same. The authori- ties to this effect are so numerous and uniform that the rule which they establish ought no longer to be open to question." Ahem v. Steele, 115 K Y. 203, 209. Remedies. — ■ " The remedies for nuisances are threefold : preventive, compensatory and punitive. The first divides it- self again into the remedy by abatement, without process of law, and by injunction. The compensatory remedy is an action at law for damages, the punitive remedy an indict- NuisAifCE. 185 ment on behalf of the public." XVI. Am. & Eng, Enc. of Law (1st ed.), 959. Abatement.— "A remedy allowed by law to the party in- jured by a nuisance to abate, destroy, remove, or put an end to the same by his own act. Whatever unlawfully annoys or damages another is a nuisance, which may be abated, i. e., taken away or removed by the aggrieved party, so that he commit no riot in the doing of it. This seems to be the primitive sense of the term abatement. The reason why the law allows this summary method of doing one's self justice, Is because injuries of this kind require an immediate remedy and cannot wait for the slow progress of the ordinary forms of justice." Wharton's Law Lexicon (2d Am. ed.). Theory of abatement. — " The true theory of abatement of nuisance is that an individual citizen may abate a private nuisance injurious to him, when he could also bring an ac- tion; and also, when a common nuisance obstructs his indi- vidual right, he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing. As in the case of the obstruction across a highway, and an unau- thorized bridge over a navigable water-course, if he has occasion to use it, he may remove it by way of abatement. But this would not justify strangers, being inhabitants of other parts of the Commonwealth, having no such occasion to use it, to do the same. Some of the earlier eases, perhaps, in laying down the general proposition that private subjects may abate a common nuisance, did not expressly mark this dis- tinction ; but w© think, upon the authority of modern cases, where the distinctions are more accurately made, and upon principle, this is the true rule of law." Brown v. Perkins, 12 Gray, 89, 101. "An individual aggrieved by a private nuisance may have his action, or he may abate the nuisance. A party sustaining .a. special injury from a public or common nuisance may also have his action, and in the like case he may abate the nuisance. In the language of Lord Campbell, it becomes to him a pri- 186 Nuisance. vate nuisance. lie may remove that which interferes with his right, to the extent necessary to the reasonable enjoyment of the right of which the thing interposed \.ouii deprive him, doing no unnecessary damage. A party, by erecting a nui- sance, doe3 not put himself, cr h'.^ property, beyond the pro- tection of the lav,-. If an :ncl" -i bial cr member of the com- mr-''" r-n vrith reasc::r.b]o <"are, notwithstanding the act oom.plained of, enjoy the right or franchise belonging to him, 1 3 15 not at Tbovty to de^'roy or interfere with the prop- er' v cf the wrongdoer." Ilarroirer v. Eitson, 37 Barb. 301, 310. Effect of abatement upon aclion, — '' It is contended that the remedy by action was barred by the abatement ; that the plaint. If hav.ng tr.l.en t-.e means of redress into his own hand3, is concluded, as in case of distraining an article dam- age feasant. \\e do not understand this to be the effect of remo ing a nuisance. True, it is treated in the books as a remedy by the act of the party. But it does not operate to redress the injury like a distress. It is preventive merely; and resembles more an entry into land, or recaption of per- sonal property. Xeither will bar an action for the original invasion of the plaintiff's right. Suppose in this case the plaintiff's horse or carriage had been injured; would it be pretended that his afterwards throwing down the fence, should operate as an indemnity ? The case at bar depends on the same principle." Pierce v. Dari, 7 Cowen, 009, 612. " In the case of a private nuisance, the aggrieved party has an election of remedies. He may remove the nuisance, or he may have his action for the private damages sustained by him. lie can not have both remedies." Griffidi v, McCul- lum, 46 Barb. 561, 569. The rule stated in Pierce v. Dart, supra, Avould seem to be the correct one, because the remedy by abatement can in no sense be regarded as compensatory, and the aggrieved party is limited in the exercise of the right, viz., " he may remove that which interferes with his right, to the extent necessary Nuisance. 187 to the reasonable enjoyment of the right of which the thing interposed would deprive him." " The abatement of a nuisance by the plaintiff does not preclude him from recovering damages sustained anterior to such abatement. Gleason v. Gary, 4 Conn. 418; Tate v. Parish, Y Monr. (Ky.) 325; Crump v. Lamhert, 13 L. T. (X. S.) 133; affirming S. C, L. R, 3 Eq. 409." 4 Wait's Act. & Def. 776. Abatement a dangerous remedy. — '^ This remedy is a dan- gerous one, and one which should never be resorted to except in extreme cases, when the exigencies of the case will not brook delay. The law generally affords ample redress for all injuries, and if no verdict declaring the thing to be a nuisance can be obtained, no justification for its removal can be upheld. The party judges at his peril, and if he errs in judgment he is answerable for all the damages that ensue, and if, in the exercise of the right, a breach of the peace is involved, he is answerable by indictment for the result. Therefore, gen- erally, it is unsafe to advise a party to remove a nuisance himself, at least if the nuisance is not beyond doubt, and the removal confined within the limits of actual right." Wood on Nuisances (3d ed.), § 848. Injunction. — '' It is a matter of conmion learning and practice that an injunction is not, like damages, a remedy (as it is said) ex dehito justitiw. Whether it shall be granted or not in a given case is in the judicial discretion of the court, now guided by principles which have become pretty well settled. In order to obtain an injunction it must be sho\^Ti that the injury complained of as present or im- pending is such as by reason of its gravity, or its permanent character, or both, cannot be adequately compensated in dam- ages. The injury must be either irreparable or continuous. This remedy is therefore not appropriate for damage which is in its nature temporary and intermittent, or accidental and occasional, or for an interference with legal rights which is trifling in amount and effect." XVI. Am. & Eng. Enc of Law (Isted.), 959. 188 K'tnsANCE. " Formerly tliis power was exercised sparingly, and only in extreme cases, at least until after the right and the question of nuisance had been first settled at law. But now the only effectual remedy for the abatement of a nuisance, except where special provision is made therefor by statute, is in a court of equity, and the jurisdiction is predicated upon the broad ground of preventing irreparable injury, interminable litigation, a multiplicity of actions, and the protection of rights." AVood on ISTuisances, § 777. " The cases in which chancery has interfered by injunction, to prevent or remove a private nuisance, are those in which the nuisance has been erected to the prejudice or annoy- ance of a right which the other party had long lyreviously enjoyed. It must be a strong and mischievous case of press- ing necessity, or the right must have been previously estab- lished at law, to entitle the party to call to his aid the juris- diction of this Court." Van Bergen v. Fan Bergen, 3 Johns. Ch. 282, 287. " If the thing sought to be prohibited is in itself a nui- sance, the court will interfere to stay irreparable mischief, where the complainant's right is not doubtful, without wait- ing for the result of a trial. But where the thing sought to be restrained is not in itself noxious, but only something which may according to circumstances prove to be so, the court will refuse to interfere until the matter has been tried at law by an action; though in particular cases the court may direct an issue, for its own satisfaction, where an action could not be brought in such a form as to meet tlie question. And in applying these principles, if the magnitude of the injury to be dreaded is great, and the risk so imminent that no prudent person would think of incurring it, the court will Dot refuse its aid for the protection of the complainant's rights, by injunction, on the ground that there is a bare pos- sibility that the anticipated injury from the noxious erection may not happen." Mohaivk Bridge Co. v. UHca & Schenec- tady R. R. Co., 6 Paige, 554, 563. " Prior to Lord Eldon's time, injunctions were rarely issued by courts of equity. During the many years he sat NuisAjsrcB. 189 upon the woolsack tliis remedy was resorted to with increasing frequency, and with the development of equity jurisprudence, which has taken place since his time, it is well said that the writ of injunction has become the right arm of the court. It was formerly rarely issued in the case of a nuisance until plaintiff's right had been established at law, and the doctrine which now seems to prevail in Pennsylvania, that this writ is not matter of right, but of grace, to a large extent jDrevailed. But now a suit at law is no longer a necessary preliminary, and the right to an injunction, in a proper case, in England and most of the States, is j ust as fixed and certain as the right to any other provisional remedy. The writ can rightfully be demanded to prevent irreparable injury, interminable litiga- tion and a multiplicity of suits, and its refusal in a proper case would be error to be corrected by an appellate tribunal. It is matter of grace in no sense except that it rests in the sound discretion of the court, and that discretion is not an arbitrary one. If improperly exercised in any case either in granting or refusing it, the error is one to be corrected upon appeal." Camphell v. Seaman, 63 1^. Y. 568, 582. Damages. — " In an action for a nuisance the general rule is, that the plaintiff's measure of damages is the loss actually sustained. . . . One who, therefore, in the exercise of what he believes to be his rights, commits a nuisance against the property of another, is bound only for the actual damages suffered, including the trouble and expense of establishing the right to have the nuisance abated. . . . And a man may not, with impunity, invade the premises of another simply because the damage may not be appreciable. The law permits the recovery of nominal damages at least, as evidence of the plaintiff's right."* 4 Wait's Act. & Def. 776. In Barricl' v. Schifferdec'ker, 123 IST. Y. 52, the court hav- ing denied equitable relief, it was held that the aggregate damage suffered by the plaintiff was the rental value to the time of the trial and the cost of prevention, the court (p. 56) saying: " The rental value to the time of the trial, and in addition the sum necessary to repair plaintiff's house and put 190 Negligence. it in a condition which would prevent future injury from the same cause were first shown, and their aggregate would cover the total damages possible to be sustained. When to that, permanent depreciation is added, damages are given for what cannot occur. The cost of prevention and the result of con- tinuance cannot both be given. The award of the one must necessarily exclude the other." " For injuries permanently affecting realty, the measure of damages is the difference between w^hat the property would have sold for before and after the injury. " For nuisances affecting the enjoyment and occupancy of realty, the measure of damages is generally the loss of rents or the depreciation in rental value." XVI. Am. & Eng. Enc. of Law (1st ed.), 984. See also Francis v. Schoellkopf, 53 N. Y. 152. NEGLIGENCE Defined. — "Actionable negligence is the inadvertent fail- ure of a legally responsible person to use ordinary care under the circumstances in observing or performing a noncontractual duty, implied by law, Avhich failure is the proximate cause of injury to a person to whom the duty is due." XVI. Am. & Eng. Enc. of Law (1st ed.), 389. " Negligence, constituting a cause of civil action, is such an omission, by a responsible person, to use that degree of care, diligence and skill which it was his legal duty to use for the protection of another person from injury as, in a natural and continuous sequence, causes unintended damage to the latter." Shearman & Kedfield on Negligence (5th ed.), § 3. Essential elements. — A cause of action for negligence de- pends upon the concurrence of negligence and damage, and is established by proof of : 1. A legal duty to use care. 2. A breach of that duty. 3. Damage proximately resulting. Negligence. 191 Duty owing. — " There is no negligence in a legal sense which can give a right of action, unless there is a violation of a legal duty to exercise care. The duty may exist as to some persons, and not as to others, depending upon peculiar relations and circumstances." Larmore v. Croiun Point Iron Co., 101 N. Y. 391,394. " iSTegligence is a violation of the obligation which enjoins care and caution in what we do. But this duty is relative, and where it has no existence between particular parties, there can be no such thing as negligence in the legal sense of the term." Tonawanda B'y Co. v. Munger, 5 Denio, 255, 266. Purpose or intent. — " In negligence, . . . , there is no purpose to do a wTongful act, or to omit the performance of a duty. There is, however, an absence of proper attention, care or skill. It is strictly nonfeaBance, not malfeasance." Gardner v. Ileartt, 3 Denio, 232, 236. " Since negligence necessarily implies inadvertence and lack of intent, such an expression as ' wilful negligence ' is a contradiction in terms and can mean nothing. Its use arises from a confusion of ^ negligence ' with ' neglect,' which latter may be intentional ; . . . The distinction between negli- gence and wilful tort is important to be observed, not only in order to avoid a confusion of principles, but it is necessary in determining the question of damages, since in case of an in- jury by the former, damages can only be compensatory; while in the latter they may also be punitory, vindictive, or exemplary. The distinction is also needful because of the defences w^hich may be set up ; contributory negligence of the plaintiff is no bar to an action for a wilful tort, though it is a complete bar to an action for negligence." XVI. Am. & Eng. Enc. of Law (1st ed.), 394. In the case of Kain v. Larhin, 56 Hun, 79, the action was brought under § 1902 of the Code of Civil Procedure, to recover damages, alleged to have been caused by the wrongful act of the defendant. " The defendant, w^ho was acting as an 192 Negligence. officer, told Kain, the deceased, to go about his business and shoved him o£P the sidewalk, Kain caiiie back and defendant again told him to go home. He said defendant could not make him. Then defendant shot him." In reversing judg- ment in favor of the defendant, the General Term of the Supreme Court (p. 80) said: "The Code of Civil Proced- ure, section 1902, authorizes this action in case the defendant would have been liable to an action in favor of the decedent if death had not ensued. Section 1899 shows that the defend- ant is liable to this action, although he might also be crim- inally prosecuted. " . . . The learned justice who tried the cause charged that the plaintiff could not recover if the decedent in any degree contributed to the injury. In thus charging he applied the rule which governs actions based solely on the negligence of the defendant. . . . But this rule does not apply to an action for injuries caused by an assault of the defendant." Care and caution. — In Coggs v. Barnard, 2 Ld. Raym. 909, Lord Holt divided negligence, as applied to bailments, into three classes or grades, viz., gross, ordinary and slight. In those cases wh^re the bailment was exclusively for the benefit of the bailor, the bailee was responsible only for grosa negligence ; in other words, the bailee was required to exer- cise only slight care. In those cases where the bailment was for the benefit of bailor and bailee, the bailee was liable for ordinary negligence, and hence was required to exercise ordi- nary care. In those ca.ses where the bailment was for the exclusive benefit of the bailee, the bailee was responsible for slight negligence, and hence was required to use great care. Such classification, in the law of torts, is of no practical value, and lias been abandoned by the courts generally. " The theory that there are three degrees of negligence, described by the terms slight, ordinary, and gross, has l)een introduced into the common law from some of the commen- tators on the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their significai- tion necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation. In Storer v. Goiuen, 18 Maine R. 177, the Supreme Court of Maine say : ' How much care will, in a given case, relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending on a great variety of circumstances which the law cannot exactly define.' Mr. Justice Story (Bailments, § 11), says: ' Indeed, what is common or ordinary diligence is more a matter of fact than of law.' If the law furnishes no definition of the terms gross negligence, or ordinary negligence, which can be applied in practice, but leaves it to the jury to determine, in each case, what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuc- cessful attempts to define that duty, had better be aban- doned." Steamboat New Wo7^Id v. King, 16 How. 469, 474. " The difficulty of defining gross negligence, and the in- trinsic uncertainty j^ertaining to the question as one of law, and the utter impracticability of establishing any precise rule on the subject, renders it unsafe to base any legal decision on distinctions of the degrees of negligence. Certainly before cases are made to turiil)y the verdict of juries, upon any such distinction, the judges should he able to define, with some precision, what they mean by gross negligence, slight negli- gence and ordinary negligence. It will be seen on examining the many cases reported, where the question has arisen, that this has been found utterly impracticable by the judges, when called upon to instruct juries on the question, and also when called on to declare the law more carefully in bank. " Xegligence is essentially always a question of fact, and every case depends necessarily upon its own particular cir- cumstances. Wliat is negligent in a given case, may easily be 13 194 Negligence. affirmed bj a jury; but in what degree the negligence con- sists, in any scale of classification of degrees of negligence, is not so easily determined — will ordinarily be a matter of pure speculation and of no practical consequence." Perkins V. N. Y. C. B. R. Co., 24 K Y. 196, 207. Standard of duty. — " In cases of pure tort, there is only one standard of conduct (that of ordinary diligence), and only one criterion of diligence (the conduct of the prudent man)." Jaggard on Torts, II., 818. " The standard of duty is not the foresight and caution which this or that particular man is capable of, but the fore- sight and caution of a prudent man — the average prudent man, or, as our books rather affect to say, a reasonable man — standing in this or that man's shoes." Pollock on Torts (7th ed.), 430. " A careful man is guided by a reasonable estimate of probabilities. His precaution is measured by that which appears likely in the usual course of things. The rule does not require him to use every possible precaution to avoid injury to others. He is only required to use such reason- able precautions to prevent accidents as would ordinarily be adopted by careful, prudent persons under like circum- stances." Schmidt v. Steinway & Hunter's Point R'y Co., 132 K Y. 566, 568. " So far as civil liability is concerned, . . . , if a man's conduct is such as wovild be reckless in a man of ordi- nary prudence, it is reckless in him. Unless he can bring himself within some broadly defined exception to general rules, the law deliberately leaves his idiosyncracies out of account, and peremptorily assumes that he has as much ca- pacity to judge and to foresee consequences as a man of or- dinary prudence would have in the same situation." Coni- monwealth v. Pierce, 138 Mass. 165, 176. The standard man. — " The standard man is no individual man, but an abstract or ideal man of ordinary mental and physical capacity and ordinary prudence. The particular Negligence. 195 man whose duty of care is to be nieasiu'ed does not furnish the standard. He may fall below it in capacity and pru- dence, yet the law takes no account of that, but requires that he should come up to the standard and his duty be measured thereby." Williams v. Hmjs, 143 N. Y. 442, 454. Rule as to carriers of passengers.— " It is the settled rule of common law throughout the United States, and probably also in Great Britain and Ireland, that common carriers of persons, and especially railway companies, are liable for any damage suffered by their passengers, which is proximately caused by the failure of such carriers to use the highest degree of prudence, and, in some cases, the utmost human skill and foresight. This precise language is constantly used in charg- ing juries, and it is sustained by such controlling authority as to make it useless to discuss its j^ropriety at any length. But while these w^ords cannot be excepted to, the current of decisions shows that a carrier is entitled to have them ex- plained to the jury. The courts do not hold that carriers are bound to use the highest degree of prudence or skill which could be conceived of as possible to man. They are only held to the highest degree wdiich has been demonstrated by experi- ence to be practicable." Shearman & Redfield on Negli- gence (5th ed.), § 51. " The cases in this court of Brown v. N. Y. Central Rail- road Company (18 N. Y., 408), and Deyo v. N. Y. Central Railroad Company (34 id.), were decided upon, and reiterate the well settled rule that " passenger carriers bind themselves to carry safely those w'hom they take into their coaches, as far as human care and foresight will go, that is, to the utmost care and diligence of very cautious persons.' " Applying the rule to the case before us, it cannot be doubted that the jury were authorized, from the testimony adduced by the plaintiff, to find that if the conductor had exercised such a degree of care and diligence, the injury to the plaintiff would not have occurred. He saw the truck [a hook and ladder truck running to a fire] behind his car 196 Negligence. on the same track with it, and approaching it with great rapidity, and it was within 15 or 20 feet of it when he stopped the car, and calling upon the plaintiff [who was a passenger] to leave it, led or guided her out on the rear plat- form where she was struck. " The street was so obstructed by a car to the west of the truck and by a vehicle carrying an iron boiler, and carts to the east of it, that the passage of the truck was confined to the track on which it was running, and it was impossible for those in charge of it to stop or turn it so as to avoid collision within the space between it and the car, at the time the ear was stopped. It w^as the duty of the conductor in the exercise of that foresight as to possible dangers which carriers of pas- sengers are bound to observe, to notice and consider these circumstances ; and his conduct in disregarding them, or in stopping his car in view of them, and in bringing a pas- senger out of it on to the rear platform, cannot be regarded as the exercise of the ' utmost care and diligence of very cautious persons.' " Maverich v. EigJiih Ave. R. R. Co., 36 :N". Y. 378, 381. " Railroad companies, whose cars are drawn by steam, at a high rate of speed, are held to the greatest skill, care and diligence in the manufacture of tlieir cars and engines, and in the management of their roads, because of the great danger from their hazardous mode of conveyance to human life in case of any negligence. But the same degTce of care and skill is not required from carriers of passengers by stage coaches {Hegeman v. ^Yestern Railroad Corporation, 13 IST. Y. 9); and, for the same reason, is not required from the carriers of passengers upon street cars drawn by horses. The degree of care required in any case must have reference to the subject- matter, and must be such only as a man of ordinary pru- dence and capacity may be expected to exercise in the same circumstances. In some cases this rule will require the high- est degree of care, and in others much less." Unger v. Forty- second Street, etc., R. R. Co., 51 X. Y. 497, 50l! " This accident happened at a place where the defendant's road crossed the tracks of a steam railroad, by the steam iSeoligence, 197 engine coming in contact with its car containing the plaintiff and other passengers. . . . That, under such circum- stances, the defendant was bound to use the highest degree of care and prudence, the utmost human skill and foresight, is the settled law." Coddington v. Brooklyn Crosstown B. R. Co., 102 X. Y. 66, 68. In an action to recover damages alleged to have been sus- tained by plaintiif wdien a passenger upon defendant's road, in consequence of the falling upon him of a clothes-wringer which had been placed by another passenger in a rack over plaintiff's seat, the court said : " In looking out for dangers arising from causes such as this, we do not think that carriers of passengers are to be held to the exercise of the highest care which human vigilance can give. That measure of care has been spoken of as due from them in the actual transportation of the passenger, and, in regard to the results naturally to be apprehended from a failure to furnish safe road-beds, proper machinery, perfect cars or coaches, and things of that nature. But, in regard to a danger of this kind, a carrier of passen- gers is, we think, held to a less strict measure of vigilance. Reasonable care (to be measured by the circumstances sur- rounding each case), to prevent accidents of this nature, is all that is demanded, ..." Morris v. N. Y. C. & H. R. R. R. Co., 106 K Y. 678, 679. See also Palmer v. Penn- sylvania Co., Ill N. Y. 488. " The plaintiff had claimed, as the act of negligence for which the defendant was liable to him in damages, that the car, in which he was a passenger at the time, was ' suddenly, negligently and carelessly driven around a curve in the track upon which it was being moved over a switch; ' whereby he was throviTi from the car and sustained certain personal in- juries. The controversy, upon the facts, was as to whether the accident had happened to the plaintiff, as he alleged and testified ; or whether, as the defendant adduced evidence to show, he was throwTi down in attempting to get off the car, while it was in motion. In his charge to the jury the trial judge had instructed them that the duty owing to the plain- tiff was, ' that of reasonable care; that is, the degree of care 198 l^EGLIGENCE. which it is presumed that an ordinarily careful and prudent man would exercise in the circumstances by wdiich he is sur- rounded . . . the degree of ordinary and reasonable care to look out for the safety of others.' At the close of his charge the plaintiff made the request, that he should charge the jury that, * in respect to carrying passengers a railroad company is bound to exercise all the care and skill which human prudence and foresight can suggest to secure the safety of their passengers.' The court so charged and the defendant excepted. ********* " I think that portion of the charge was erroneous, when taken in connection with the circumstances under which it was made. The jury had already been instructed that the duty owing to the plaintiff by the defendant w^as to exercise that reasonable care, which an ordinarily careful man would exercise under the circumstances by which he was surrounded. But when they were finally instructed, . . . , that the defendant was bound to ' exercise all the care and skill which human prudence and foresight could suggest, to secure the safety of its passengers,' they might reasonably infer that the obligation resting upon the defendant, with respect to the degree of care and skill to be exercised at the time of the accident, was as strict as the request made it. But that w^ould not be the correct rule. The obligation of carriers of passen- gers to exercise the highest degree of care, which human pru- dence and foresight can suggest, only exists wuth respect to those results which are naturally to be apprehended from unsafe road-beds, defective machinery, imperfect cars and other conditions endangering the success of the undertaking. In every case, the degree of care to be exercised is dependent upon the circumstances and, if the accident is attributable to the existence of defects in the road, or in the mechanical appliances availed of for the operation of the rail- road, by reason of which there was a possibility of loss of life or limb to the traveling public, the strict rule requiring the highest degree of care and of human skill would be applicable. Negligence. 199 " . . . Under these circumstances, the defendant was only liable for the failure of the driver to use that skill and care which would be required of an ordinarily careful and prudent man. This the trial judge had correctly charged and he was in error in charging further as requested by the plain- tiff ; however the rule, as stated in. the request, might be cor- rect under different circiunstances." Stierle v. Union Rail- way Co., 156 K Y. 70, 72. Exemption contracts by common carriers. — ''As is well known, the general rule of the Federal courts is to deny recog- nition to contracts assuming to exempt common carriers from liability for injury to passengers or their property through negligence, on the ground that such agreements are contrary to public policy. The law of New York, and of some of the other States, is to the contrary. In New York, however, it is required that, in order to secure immunity from liability for its negligence, or that of its agents, the carrier's contract must be definitely expressed. (Kenney v. R. R. Co., 125 N. Y. 422)." K Y. Law Journal, April 4, 1900. Facts and law. — " The court is required to charge the law, and the jury to find the facts. The law, however, does not state what facts proved will show the absence of ordinary care. It could not do so as applicable to every case which arises. The cases involving this question are so different in their facts, so various, so complicated, and arising under so many different circumstances, that it would be utterly im- possible to lay do^\Ti any general principle of law, by which every special case could be measured and tested as to the fact of negligence, and which would enable a judge to say to the jury, as matter of law, such and such facts show the absence or presence of ordinary care." Bridger v, A. & 8. R. R. Co., 25 S. C. 24, 30. " The question whether or not negligence existed is gen- erally a question for the jury. It has been held that the case should always go to the jury (1) when the facts which, if true, would constitute evidence of negligence, are contro- 200 l!^EGXIGENCE. verted; (2) where such facts are not controverted, but where there might be a fair difference whether the inference of neg- ligence should be drawn ; ( 3 ) when, at the same time the facts are in dispute, and the inferences to be drawn from them are doubtful. In other words, the question of negligence is for the jury when, there is substantial doubt as to the facts, or as to the inferences to be drawn from them. Yv hen, however, it is assumed that the evidence which is favorable to the plain- tiff is true, and no fair inference that the defendant had been guiltv of a failure of duty could be drawn from such evi- dence, the judge should, according to the practice of the court, decide the case by peremptory instructions to the jury." Hathaway v. East Tennessee, V. & G. R. R., 29 Fed. Rep. 489. " There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall consti- tute ordinary care, under any and all circumstances. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their pro^dnce to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a simi- lar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the sam£ conclusions from them, that the question of negligence is ever considered as one of law for the court." Grand Trunk R'y Co. v. Ires, 144 U. S. 408, 417. " Negligence is ordinarily a question for the jury, but only when the facts would authorize a jury to infer it." Sutton V. N. Y. C. & H, R. R. R. Co., 66 N. Y. 243, 249. " There are, no doubt, cases depending entirely upon ques- tions of negligence, where the proof is so clear that the court Kegligexce. 201 ia justified in assuming, as a matter of la-vr, that the negli- gence is established. But questions of that natui'e are pecu- liarly appropriate for the consideration of a jury, and courts are very justly cautious about encroaching upon their prov- ince in this respect." Moore v. Westet-velt, 21 jST. Y. 103, 106. " The question of negligence depends very much upon cir- cumstances, and is addressed to the judgment of men of ordi- nary prudence aud discretion, and is ordinarily for the jury. When the inferences to be dra"v\Ti from the proof are not cer- tain and incontrovertible it cannot be decided as a question of law by directing a verdict or nonsuit, but must be submitted to the jury. " I^Tegligence is a question of fact and should usually be decided as such, especially whenever men of ordinary pru- dence and discretion might differ as to the character of the act, under the circumstances of the case, the positions and condition of the parties." Thurher v. Harlem B., M. & F. B. B. Co., 60 iv\ Y. 326, 331. Presumption of negligence. — As a general rule, negligence must be proved, and is not presumed. But there are cases where the maxim res ipsa loquitur applies, that is proof of the accident is sufiicient to establish negligence in the absence of explanation by the defendant. " As a rule there must be affirmative proof of negligence on the part of the defendant to support an action ; for, where it is a perfectly even balance on the evidence whether the injury has resulted from the want of proper care on the part of one side or the other, the party who founds his claim on the imputation of negligence fails to establish it. However, where the actual thing causing the accident is solely under the management of the defendant, and the accident is one which would not, in all probability, happen if the person managing the thing was using due care, it has been held that the mere occurrence of the accident is sufficient prima facie proof of negligence to impose on the defendant the onus of rebutting it." Addison on Torts, 21. 202 Negligence. '' While it is true as a general proposition that the burden of showing negligence on the part of the defendant occasion- ing an injury, rests in the first instance upon the plaintiff, , . . , when he has shown a situation which could not have been produced except by the operation of abnormal causes, the onus then rests upon the defendant to prove that the injury was caused without his fault." SeyhoU v. N. Y., L. E. & \y. R. R. Co., 95 K Y. 5G2, 568. " It has been held that where a building adjoining a street falls into the street in the absence of explanatory circum- stances negligence will be presumed, and the burden is placed upon the o\\Tier of showing the use of ordinary care; that where a plaintiff was passing on a highway under a railroad bridge when a brick fell from one of the pilasters upon which an iron girder of the bridge rested, striking him upon the shoulder, causing injury, negligence would be presumed ; that where a barrel rolled out of the window of a warehouse onto a street, injuring a person passing, negligence would be pre- sumed ; that where a person, while walking along the street in front of a building, was struck by a falling chisel, the pre- sumption of negligence is sufficient to call for an explanation ; that where plaintiff was injured while walking on the side- walk of a street immediately under the defendant's railroad by being struck with a heavy piece of metal which fell from one of defendant's cars passing above, that from the nature of the accident negligence might be inferred, etc." VoR-mar V. M. R. Co., 134N. Y. 418, 420. See also Hogan- v. Man- hattan R. Co., 149 N. Y. 23. " Primarily, it is argued that the principle which usually passes under the name of 'res ipsa loquitur/ applies only to cases where the relation between the parties is the contractual one of carrier or bailee, or in which the party injured has been injured while on a public highway. While there are some expressions to be found in text books and decisions which seem to support this claim, in my judgment it is unfounded and the application of the principle depends on the circumstances and character of the occurrence, and not Negligence. 203 on the relation between the parties, except indirectly so far rnc >xii-«Y>. as that relation defines the measure of duty imposed on the „ defendant. ... In Breen v. N. Y. Central, etc., R. R. Co. (109 E". Y. 297), it is said: 'There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the acci- dent is such as, in the ordinary course of business, does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.' I can see no reason why the rule thus declared is not applicable to all cases or why the probative force of the evidence depends on the relation of the parties. Of course, the relation of the parties may determine the fact to be proved, whether it be the want of the highest care or only want of ordinary care, and, doubtless, circumstantial evidence, like direct evidence, may be insufficient as a matter of law to establish the want of ordinary care, though sufficient to prove absence of the highest degree of diligence." Griff en v. Manice, 166 JST. Y. 188, 193-194. Contributory negligence. — " The general rule is, that one who receives an injury from the negligence of another may maintain an action for his damages. Upon this rule a natural and reasonable exception has been engrafted, that if the in- jured party, by his own negligence, has contributed to the injury, he cannot maintain an action, unless the negligence of the other party has been so gross in its character as to be equivalent in law to a wilful injuring." Chapman v. New Haven R. R. Co., 19 K Y. 341, 342. Defined. — '' Contributory negligence, in its legal significa- tion, is such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or co- operating with the negligent act of the defendant, is a proxi- mate cause or occasion of the injury complained of. To con- stitute contributory negligence there must be a want of ordi- nary care on the part of the plaintiff, and a proximate con- 204 Negligence. nection between that aud the injury." Beach on Contrib. Keg., 7. Reason for the rule. — " If both parties are negligent; if the negligence of the plaintiff concurs with that of the defend- ant, both contributing to the result, neither court nor jury are permitted to measure the degree of contribution, or in- quire whether it was the negligence of the one or the other, which was the essential cause of death." Grip pen v. N. Y. Central, 40 N. Y. 34, 51. Care towards infirm, aged and young. — " A sick or aged person, a delicate woman, a lame man, or a child, is entitled to more attention and care from a railroad company than one in good health and under no disability. They are entitled to more time in which to get on or off the cars ; they are entitled to more consideration when crossing a street, to the end that the cars shall not run over them. All these classes are en- titled to use the streets and to ride in the cars ; and such haste in starting np, or such speed in driving as would be reasonable care toward others, might well be carelessness and neglect toward them." Sheridan v. Brooklyn, & Newtown R. R., 36 X. Y. 39, 42. Care to be exercised by such persons. — '* In applying the rule that a person who seeks to recover for a personal injury, sustained by another's negligence, must show himself free from fauh, the law discriminates between children and adults, the feeble and the strong, and only requires of each the exer- cise of that degree of care to be reasonably expected in view of his age and condition." Reynolds v. N. Y. Cen. & H. R. R. r\ Co., 58 K Y. 248, 252. Doctrine of identification. — The case of Thorogood v. Bryan, 8 C. B. 115 (overruled, after standing as authority for almost forty years, in Mills v. Armstrong, L. E. 13 App. Cas. 1), introduced into English law the rule that a passen- ger in a public coach became so identified with it as to be l^EGLIGENCE. 205 chargeable with the negligence of those in control; that is, their negligence was imputed to him as contributory fault, so as to jDreclude recovery for an injury occasioned by the con- curring negligence of a stranger. Such, however, is not the law in New York, and was criticised by Mr. Justice Field, in Little v. Eackett, 116 U. S. 366, 375: "The truth is, the decision in Thorogood v. Bryan rests upon indefensible ground. The identification of the passenger with the negli- gent driver or the owner, without his personal co-operation or encouragement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver or the person managing it is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world." In Barrett v. Third Ave. E. B. Co., 45 N. Y. 628, the plaintiff was injured while riding as a passenger in a car of the defendant, resulting from a collision with a freight car of the Harlem Railroad Company, at a point where the two roads intersected. The court (p. 630) said: " There was no question of contributory negligence on the part of the plain- tiff ; she was injured without fault on her part, and the ques- tion upon the merits was, whether the collision causing the injury was exclusively the result of the negligence or care- less acts of the agents and servants of the defendant having the control and ma'nagement of the car in which the plaintiff was a passenger, or of such negligence in connection with negligence on the part of those in charge of and controlling the movements of the colliding car on the Harlem road. If the acts of the defendant's servants contributed to the injury, the defendant must respond in damages to the plaintiff, although the negligent acts of the persons in charge of the other car also contributed to the same result, and the com- parative degree in the culpability of the two will not affect the liability of either. If both were negligent in a manner and to a degree contributing to the result, they are liable jointly and severally." 206 Negligence. In Robinson v. N. Y. C. £ H. R. R. R. Co., 66 K Y. 11, the plaintiff had accepted an invitation to ride with one Conlon, and while so riding received injuries resulting from a collision, at a railroad crossing, between the buggy, in which she was riding, and a train on defendant's road. The court (page 12) said: "The court charged the jury that if the defendant was negligent, and the plaintiff was free from negligence herself, she was entitled to recover although the driver might be guilty of negligence which contributed to the injury. " In determining this question it is important to first ascer- tain the relation wdiich existed between the plaintiff and Conlon, the driver. It is very clear, and was found by the jury, that the relation of master and servant did not exist. Nor was Conlon, in any sense, the agent of the plaintiff. It is, therefore, the case of a gratuitous ride by a female upon the invitation of the owner of a horse and car- riage. The plaintiff had no control of the vehicle, nor of the driver in its management. It is not claimed but that Conlon was an able-bodied, competent person to manage the estab- lishment, nor that he was intoxicated, or in any way unfit to have charge of it. Upon what principle is it that his negli- gence is imputable to the plaintiff ? It is conceded that if by his negligence he had injured a third person, she would not be liable. . . . True, she had consented to ride with him, but as he w^as in every respect competent and suitable, she was not negligent in doing so. . . . There was no necessity for riding with him. It w^as a voluntary act on the part of the plaintiff, but it was not an unlawful or negligent act. She was injured by the negligence of a third person, and was free from negligence herself, and I am unable to perceive any reason for imputing Conlon's negligence to her. " If his negligence contributed to the injury, he is liable also to an action, but that does not exonerate the defendant. These views proceed, of course, upon the assumption that there was no relation of principal and agent, or master and servant. Nor were they engaged in a joint enterprise Negligence. 207 in the sense of mutual responsibility for each other's acts, as in Beck v. East River Ferry Company (6 Robertson, 82)." In Donnelly v. Brooklyn City B. R. Co., 109 N. Y. 16, the plaintiff, with one McNally, had driven from Fort Hamil- ton to Brooklyn, in a wagon drawn by one horse with a load of fish for market. They returned about midnight along an avenue in the middle of which were two tracks of the defend- ant, with a dirt road on each side for wagons. MclSTally was driving and the plaintiff was sitting by his side. They had been on the right-hand track, when hearing a wagon approach- ing, which they thought was loaded, they turned and drove upon the other track, upon which they were when they were run down by an engine of the defendant, and the plaintiff received his injuries. The court (p. 22) said: "We think the plaintiff was chargeable with the neglect of his comrade. He was conscious of the danger and apparently made no objection or effort to avoid it. He was engaged in a common employment with McNally. He had full control of his own actions, and, though on the safe track, did not object when, after telling McNally to turn out, they turned upon the dan- gerous track." In BrickeJl v. N. Y. C. cC H. R. R. R. Co., 120 K Y. 290, the plaintiff had paid the driver of a single horse and wagon to carry him from one place to another, and, while riding and occupying the same seat with the driver, sustained injuries from a collision between the wagon and an engine of the defendant at a highway crossing of defendant's road. The court (p. 293) said: " The rule that the driver's negligence may not be imputed to the plaintiff should have no application to this case. Such rule is only applicable to cases where the relation of master and servant or principal and agent does not exist, or where the passenger is seated away from the driver or is separated from the driver by an enclosure and is without opportunity to discover danger and to inform the driver of it. {Robinson v. N. Y. C. & H. R. R. R. Co., 66 K Y. 11.) 208 Xegligence, '' It is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of danger and avoid it if practicable. '' The plaintiff was sitting upon the seat with the driver, with the same knowledge of the road, the crossing and environments, and with at least the same, if not better, oppor- tunity of discovering dangers that the driver possessed, and witliout any embarrassment in communicating them to him. " The rule in such ease is laid down in Iloag v. N. Y. C. & H. E. R. R. Co. (Ill X. Y. 199), where husband and wife were sitting upon the same seat in a vehicle driven by the hus- band, and both were killed by a collision at a crossing, and in an action brought by the administratrix of the wife against the railroad company it was held ' that she had no right, because her husband was driving, to omit some reasonable and prudent effort to see for herself that the crossing was safe.' " Imputation of negligence to persons non sui juris. — '' In actions brought by or in behalf of children, idiots, luna- tics, or other persons non sui juris, for injuries to which the negligence of their legal custodians contributed, the question has arisen, whether or not, upon the theory of agency or identity, such contributory negligence on the part of the par- ent or guardian should be imputed to the plaintiff in bar of the action. Upon this question the courts have not been able to agTee. It is held in many jurisdictions in this country, that such negligence is justly to be imputed to an infant plaintiff", wliile in others it is strenuously denied." Beach on Contributory Xegligence (3d ed.), § 116. Where rule prevails. — " For one or the other reason, or no reason, this rule of imputed negligenee seems to be at present established in Xew York, Maine, JVfassachusetts, Delaware, Maryland, Indiana, Minnesota, Kansas, and California." Shearman & Ecd. on Xeg. (5th ed.), § 74. Where rule does not prevail. — "The better rule, that in such an action, by or in behalf of an infant, the negligence of Asa Negligein^ce. 209 parent or guardian is not to be so imputed, prevails in Ala- bama, Georgia, Connecticut, Illinois, Iowa, Kansas, Michi- gan, Mississippi, Missouri, Nebraska, I^Tew Jersey, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Virginia and West Virginia." Beach on Contributory Neg. (3d ed.), § 130. The New York rule.— In New York it is maintained that the negligence of the custodian must be imputed to a plaintiff non sui juris, and the leading authority is liartfield v. Roper ^ 21 Wendell, 615. In that case a child about two years of ager|-**-*^ was in the highway, some distance from home and unat-|xi.-*w« *- tended, when it was run over by the horses of the defendant, _^^ ^^ ^^ who failed to see the child before it was injured, and the court (p. 618) said: " Was the plaintiff guilty of negligence ? His *) counsel seemed to think he made a complete exception to the a-**— ** general rule demanding care on his part, by reason of his t^ ,.^.- extreme infancy. Is this indeed so ? A snow path in the * public highway, is among the last places in this country to "^ which such a small child should be allowed to resort, unat- tended by any one of suitable age and discretion. The cus- tody of such a child is confided by law to its parents, or to others standing in their place ; and it is absurd to imagine that it could be exposed in the road, as this child was, with- out gross carelessness. It is the extreme of folly even to turn domestic animals upon the common highway. To allow small children to resort there alone, is a criminal neglect. It is true that this confers no right upon travelers to commit a volun- tai'y injury upon either; nor does it warrant gross neglect; but it seems to me that, to make them liable for any thing short of that, would be contrary to law. The child has a right to the road for the purposes of travel, attended by a proper escort. But at the tender age of two or three years, and even more, the infant cannot personally exercise that degree of discretion, which becomes instinctive at an advanced age, and for which the law must make him responsible, through others, if the doctrine of mutual care between the parties using the road is to be enforced at all in his case. It is perfectly well 14 210 Negligence. settled, that, if the party injured bj a collision on the high- way has drawn the mischief upon himself by his own neglect, ho is not entitled to an action, even though he be lawfully in the highway pursuing his travels, Ratlibun v. Payne, 19 ^Yendell, 399, Burclc v. N. Y. Dry Dock Company, 2 Hall, 151, which can scarcely be said of a toppling infant, suffered by his guardians to be there, either as a traveler or for the purpose of pursuing his sports. The application may be harsh when made to small children, as they are knoAvn to have no personal discretion, common humanity is alive to their protection; but they are not, therefore, exempt from the legal rule, when they bring an action for redress ; and there is no other way of enforcing it, except by requiring due care at the hands of those to whom the law and the necessity of the case has delegated the exercise of discretion. An infant is not sui juris. He belongs to another, to whom discretion in the care of his person is exclusively confided. That person is keeper and agent for this purpose; and in respect to third persons, his act must be deemed that of the infant ; his neg- lect, the infant's neglect." " The principle of this case [Hartfield v. Roper] has been since its determination often applied by the courts of this State to analogous cases, and must now be regarded as the settled law, notwithstanding a somewhat different rule pre- vails in some of the other States." Mangam v. Brooklyn R. R. Co., 38 K Y. 455, 457. Criticism of the rule.— " The rule of imputed negligence, founded upon a dictum in Hartfield v. Roper, has undoubt- edly been affirmed in many cases in New York courts of original jurisdiction ; and it has been often mentioned by the Court of Appeals as if it were settled law. But it is a re- markable fact that the question has never been squarely pre- sented to any court of last resort in New York, for decision ; and apparently the question has never been argued there. . . . The main question is entirely open to review in the Court of Appeals. And, as that court did not hesitate to ISTegligence. 211 overrule a decision of the Supreme Court, on a point of com- mercial and statutory law, wliicli had been acted upon for thirty years without question, we can see no good reason why it should not break through the precedents on this important question, and allow it to be argued as new, in accordance with the wise policy of the English Court of Appeal, in over- ruling Thorogood v. Bryan, after it had stood for thirty- eight years." Shearman & Kedfield on Negligence (5th ed.), §75. Who are non sui juris. — Idiots and lunatics are as a class non sui juris, but infants as a class may not be said to be personally irresponsible, as the question of liability in tort depends upon capacity, and for that reason is difficult of determination. " In Tucker v. N. Y. C. & H. R. R. Co. (124 K Y. 308) it was held that the question at what age an infant's respon- sibility for negligence may be presumed to commence is not one of fact, but of law, and in analogy to the provision of section 19 of the Penal Code to the effect that a child under the age of twelve years would be presumed to be incapable of crime, it was suggested that twelve years was the age at which the presumption of capacity to appreciate danger and to exercise caution should commence. The presumption in either case, that is, of incapacity below the age of twelve and of capacity at that age, may of course be overborne by evidence. But, as was said by the Court of Appeals in the recent case of Zwach v. N. Y., L. E. & W. R. R. Co. (160 ^^^^^ ^ N". Y. 362, 365), ' the reasoning of the court in the case of Tucker v. N. Y. C. & H. R. R. R. Co. (124 K Y. 308) ^^»-^ is to the effect that an infant under the age of twelve years v . is presumed to be non sui juris so the question with respect X to his capacity at that age becomes one of fact. It is true •'*J*^^ that an infant, even of more tender years, may be shown to ^5,i\,«^ be sui juris. The fact must in such cases depend upon the capacity and intelligence of the child, and, hence, becomes v^Vr^CL ^.^ a question for the consideration of the jury in connection S^ ^^j^ \ ../<^' with all the facts and circumstances of the case.' In the present state of the law, these two cases must be regarded as authority for the proposition that the legal presumption of non sui juris lasts until the infant has reached the age of twelve years, especially in view of the fact that no authori- tative decision exists for the entertaining of a contrary pre- ^^^^ sumption at an earlier age." Hill v. BaUimore £ New York ^^ ^p^ R. Co., 75 App. Div. 325, 327-8. See, also, Nagle v. A. U. — " B. B. Co., 88 Pa. St. 35. X^*'^**^! and that no presumption arises from the mere happening of an injury and proof of negligence on the part of the defend- ant, that the plaintiff was free from blame." ]Yeston v. City of Troy, 139 K Y. 281, 282. " It is . . . contended that the complaint was insuffi- cient because it novrhere alleged the absence of . . . con- ^ tributory negligence. Such separate and clir opt nvprment in " the pleading was imnecessary . {Ilacl'ford v. N. Y. C. B. B. ***"^' Co., 6 Lans. 381; affirmed, 53 K Y. 654.) RubstMutiaUv -K^j^ that allegation is always involved in the averment that th e — injury set out was occasioned by the defendant's negligenc e. ^?^**^**^' To prove that, it is necessary for the plaintiff to show, and the burden is upon him to establish, that his own negligence did not cause or contribute to the injury. {Hale v. Smith, 78 jSF. Y. 480.) In the multitude of cases of this general character we know of none which requires of the pleader any independent or explicit allegation that the plaintiff him- self was without fault." Lee v. Troy Citizens' Gas Light Co., 98 :N'. Y. 115, 119. Contributory negligence : burden of proof on defendant. — Many ** cases hold that if the negligence of the plaintiff con- jITEGJui^NCE. 213 ciirred in producing tlie injury complained of, that is purely matter of defense, and hence the burden of proving it is upon the defendant. This is the view taken by Judge Duer in Jolmson v. The Hudson River R. R. Co., 5 Duer, 21 ; and that able judge rested his opinion mainly on two grounds: 1. He held that in the absence of proof there is no presump- tion that the person injured was guilty of negligence which contributed to the injury, any more than there is a like pre- sumption that he whose act or omission caused the injury was guilty of negli^once. And inasmuch as the plaintiff must prove affirmatively that the act or omission of the de- fendant which resulted in the injury, was negligent, before he can recover, so in like manner the defendant must prove affirmatively that the act or omission of the plaintiff contrib- uted proximately to the injury, in order to defeat the action on that ground. 2. He further held that no averment is required in the complaint in such an action that the plaintiff, when injured, was in the exercise of proper care and caution to avoid the injury; and, from the elementary rule that every fact is necessary to be averred in the complaint which the plaintiff is bound to prove in order to maintain his action, he draws the conclusion that the plaintiff ill such an action is not bound to prove in the first instance his own freedom from contributory fault ; in other words, that the 07ms prohandl is not upon him to disprove his own negligence, but is upon the defendant to prove such negligence. ********* " It seems to us that the reasons in favor of the rule which casts the burden of proof in such cases upon the defendant, are the stronger and better reasons ; and that such rule rests upon sound legal principles, and ought to prevail in this state." Hoijt v. City of Hudson, 41 Wis. 105, 110. Jurisdictions placing burden of proof on plaintiff. — In the following jurisdictions the burden of proving the absence of contributory fault rests upon the plaintiff: Connecticut, Illinois, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan, Mississippi and New York. 214 !N^EGLIGENCE. Jurisdictions placing burden of proof on defendant. — In the following jurisdictions tlie burden of proof as regards contributory fault rests upon the defendant: Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Kansas, Kentucky, ]\raryland, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, North Dakota, Ohio, Oregon, Pennsylvania, Khode Island, South Carolina, South Dakota, Texas, Vermont, Virginia, Washington, West Virginia and Wisconsin. See Shearman & Kedfield on Negligence (5th ed.), §§ 107, 108, and notes. ft o«-«-j/'**-*'^ — ::*J^J^-«- U) C>«>«> '• «**■ ^:}cjtSi^ f) VTi, (T'^ S •-^.w«u^. ,.,p.-*c^«i v-*-*^ INDEX. Abatement : (See Death; Nuisance; Seduction.) Abuse of process: (See Maucious Fkosecution.) Actio personalis moritur cum persona: ^^^