chapter 143

, Public Statutes, for maintaining a structure in the nature of a fence, in violation of the statute.

Upon the trial, defendant moved for a nonsuit, on the ground that the statute is unconstitutional. The motion was denied, and defendant excepted.

Verdict for the plaintiff.[588]

PARSONS, C. J. “Any fence or other structure in the nature of a fence, unnecessarily exceeding five feet in height, erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance.

“Any owner or occupant, injured either in his comfort or the enjoyment of his estate by such nuisance, may have an action of tort for the damage sustained thereby.

“If the plaintiff recovers judgment in the action, the defendant shall cause the removal of the nuisance within thirty days from the date of the judgment, and for each day he shall permit the nuisance to remain after the expiration of said thirty days he shall incur a penalty of ten dollars for the use of the party injured.” P. S. c. 143, ss. 28, 29, 30.

The act forbids the use by one landowner of his land for the unnecessary erection of a fence exceeding five feet in height, when the purpose of such unnecessary height is the annoyance of the adjoining owner or occupant, if such unnecessary height injures the adjoining owner in his comfort or the enjoyment of his estate. The claim of the defendant in support of his motion for a nonsuit, that the statute is unconstitutional, raises the question whether the statutory prohibition is an interference with the defendant’s “natural, essential, and inherent” right of “acquiring, possessing, and protecting property,” or deprives him of that protection in its enjoyment, which is the right of “every member of the community.” Bill of Rights, arts. 2, 12.

* * * * *

The constitutional objection made to the present statute raises the question, if it appears that the statute is an interference with the defendant’s property right, whether the interference is or not one which the legislature might properly make as a regulation of the use of property. The constitutionality of similar statutes has been upheld upon the latter ground, as being merely a small limitation of existing rights incident to property, which under the police power may be imposed for the sake of preventing a manifest evil. “It is hard,” it has been said, “to imagine a more insignificant curtailment of the rights of property.” Rideout _v._ Knox, 148 Mass. 368, 372, 373; Karasek _v._ Peier, 22 Wash. 419; Western &c. Co. _v._ Knickerbocker, 103 Cal. 111. Similar statutes in Maine, Vermont, and Connecticut have been before the courts, but it has not been suggested that the power of the legislature to adopt them has been attacked in those states. Lord _v._ Langdon, 91 Me. 221; Harbison _v._ White, 46 Conn. 106; Gallagher _v._ Dodge, 48 Conn. 387, 40 L. R. A. 181–183, note.

The present statute was passed in 1887. Laws 1887, c. 91. In Hunt _v._ Coggin, 66 N. H. 140, the verdict was for the defendant; and in Horan _v._ Byrnes, 70 N. H. 531, the defendant waived any objection to the statute upon this ground. In Lovell _v._ Noyes, 69 N. H. 263, the question was whether a building was within the terms of the statute. The constitutional question is now presented for the first time.

It is objected in answer to the argument that statutes like the present are within the constitutional exercise of the police power, involving for the general good some slight limitation of existing property rights, that if one incident of the property right in real estate is the right to use it maliciously for the sole purpose of injuring another, it is as much an invasion of the right to take it from a small portion as from the whole of one’s property; and that the matter in question concerns private individuals and not the public in general, and hence does not come within the police power. State _v._ White, 64 N. H. 48, 50. It may be thought these objections are successfully answered in the cases cited, or that, if not there answered, a satisfactory answer can be found. But a discussion of these objections does not reach the fundamental question in the case.

“The statute was designed to prevent an act the sole effect of which would be to annoy or injure another.” Lovell _v._ Noyes, 69 N. H. 263. The primary question, therefore, is whether one’s right to use property solely to injure another is a part of his property right in real estate, which is so protected by the constitution that the prohibition of such use is not within the general power of legislation “for the benefit and welfare of this state and for the governing and ordering thereof.” Const. art. 5. Upon the question whether a fence on or near the division line between adjoining landowners, maliciously built to an unreasonable height for the sole purpose of annoying and injuring the adjoining owner or occupant, is a nuisance which can in the absence of statutory authority be abated by an injunction, the courts are in conflict. Letts _v._ Kessler, 54 Ohio St. 73, answers the question in the negative, while an opposite conclusion is reached in Michigan. Burke _v._ Smith, 69 Mich. 380; Flaherty _v._ Moran, 81 Mich. 52; Kirkwood _v._ Finegan, 95 Mich. 543. In Rideout _v._ Knox, 148 Mass. 368, and Karasek _v._ Peier, 22 Wash. 419, cases in which the power of the legislature to enact a statute similar to that under consideration is attacked and upheld, it is conceded “that to a large extent the power to use one’s property malevolently, in any way which would be lawful for other ends, is an incident of property which cannot be taken away even by legislation.” Rideout _v._ Knox, _supra_, 372.

The conclusion that a landowner’s property right in real estate includes the right to use it solely for the injury and annoyance of his neighbor, without intending to subserve any useful purpose of his own, is “based upon a narrow view of the effect of the land titles,” and is reached “by the strict enforcement of a technical rule of ownership briefly expressed in an ancient maxim,” _cujus est solum, ejus est usque ad coelum_. The courts of this state have had in some respects, at least, a different understanding of the elements of land-ownership. As to the use of land in the control of surface water, the enjoyment of water percolating beneath the surface, and the use generally that may be rightfully made of real estate by the owner or occupant, the test has been considered to be not merely whether the act was an exercise of dominion on the land regardless of the injury to other land, but the reasonableness of the use under all the circumstances, including the necessity and advantage to one and the unavoidable injury to the other. Franklin _v._ Durgee, 71 N. H. 186; Ladd _v._ Brick Co., 68 N. H. 185; Swett _v._ Cutts, 50 N. H. 439; Bassett _v._ Company, 43 N. H. 569, 577. It has been said that the rule of absolute dominion is easier of application. Chase _v._ Silverstone, 62 Me. 175, 183. This view, however, does not seem to be upheld by the difficulties met in its application in reference to surface waters. See Franklin _v._ Durgee, 71 N. H. 186, 189. But however that may be, difficulty in administration is not a sufficient reason for the denial of justice. Cases like Chatfield _v._ Wilson, 28 Vt. 49, and Phelps _v._ Nowlen, 72 N. Y. 39, in which the principle of the maxim relied upon is applied to waters in the soil, are not authority here, where a contrary view is entertained. Franklin _v._ Durgee and Bassett _v._ Company, _supra_.

Aside from the authorities in cases in which the control of waters was in question, the leading case appears to be Mahan _v._ Brown, 13 Wend. 261. Here, although the plaintiff alleged that the fence complained of was erected solely to injure her, the decision is upon the ground that by the erection of the fence the plaintiff is deprived of no right, but is merely prevented from acquiring a right. If by enjoyment of light and air across his neighbor’s land for the prescriptive period a landowner could acquire a right to such enjoyment, the building of a fence as an assertion of a contrary right and to prevent the acquiring of such easement would be a building for a necessary and useful purpose, and not for the sole purpose of annoying another. The case standing upon a view of the effect of non-user of a right to build, now generally abandoned in this country (Wash. Ease. 490, 497, 498), is not of value in the present discussion. The argument generally is, that the motive with which one does an act otherwise lawful is immaterial; and hence, as it must be conceded that a landowner has the right to build on his land as he conceives may best subserve his interests, the act lawful for a useful purpose is not made unlawful and a nuisance merely by the intent accompanying it.

Whether the first proposition is entirely true may perhaps be doubted. Cases cited to support the proposition (Walker _v._ Cronin, 107 Mass. 555; Phelps _v._ Nowlen, 72 N. Y. 39) do not support it in its entirety. See Chesley _v._ King, 74 Me. 164. In Houston _v._ Laffee, 46 N. H. 505, which was trespass for cutting an aqueduct pipe maintained by the plaintiff upon the defendant’s land by a parol license, it was held that if the cutting of the pipe was done simply for the purpose of putting an end to the license, and without any malice or intentional wrong, the defendant would not be liable; but if the pipe was cut “wantonly, unnecessarily, maliciously, and with a view ... to injure the plaintiff,” the defendant would be liable. It is true that an act which one has the right to do under all circumstances, like the bringing of a suit upon a valid claim (Friel _v._ Plumer, 69 N. H. 498), cannot be made actionable by the motive which accompanies it. But as applied to the use of real estate the argument begs the question which is whether the enjoyment of real estate includes the right to use it solely to injure another. Because when employed for a useful purpose such use may rightfully injure another, it does not follow that the same use for a wrongful purpose may also rightfully injure another, except upon the theory of absolute dominion, for the character of the use is an element of the right.

“As a general proposition, it is safe to say that the owner of land has a right to make a reasonable use of his property; and that right extends as well to an unlimited distance above the earth’s surface as to an unlimited distance below. He may not only dig for a foundation and a cellar as deep as he pleases, but he may erect his building as high as he pleases into the air, subject all the time, of course, to a proper application of the doctrine contained in the maxim, _sic utere tuo ut alienum non lædas_. The erection and maintenance of buildings for habitation or business is a customary and reasonable use of land. Of course the landowner, in making such erections, must be held to the exercise of all due care against infringing the legal rights of others, to be determined by the nature of the rights and interests to be affected, and all the circumstances of each particular case.” Ladd, J., in Garland _v._ Towne, 55 N. H. 55, 58.

“Property in land must be considered, for many purposes, not as an absolute, unrestricted dominion, but as an aggregation of qualified privileges, the limits of which are prescribed by the equality of rights and the correlation of rights and obligations necessary for the highest enjoyment of land by the entire community of proprietors.... The soil is often called property, and this use of language is sufficiently accurate for some purposes. But the proposition that the soil is property conveys a very imperfect idea of the numerous and variously limited rights comprised in landed estate; and it is sometimes necessary to remember that the name of property belongs to some of the essential proprietary rights vested in the person called the owner of the soil.... So these proprietary rights, which are the only valuable ingredients of a landowner’s property, may be taken from him, without an asportation or adverse personal occupation of that portion of the earth which is his in the limited sense of being the subject of certain legally recognized proprietary rights which he may exercise for a short time.... One of Eaton’s proprietary rights was the correlative of R.’s duty of abstaining from such a use of air and water, and from such an interference with their quality and circulation, as would be unreasonable and injurious to the enjoyment of Eaton’s farm.” Thompson _v._ Androscoggin Co., 54 N. H. 545, 551, 552, 554. “Excavations maliciously made in one’s own land, with a view to destroy a spring or well in his neighbor’s land, could not be regarded as reasonable.” Swett _v._ Cutts, 50 N. H. 439, 447.

“If a man has no right to dig a hole upon his premises, not for any benefit to himself or his premises, but for the express purpose of destroying his neighbor’s spring, why can he be permitted to shut out light and air from his neighbor’s windows maliciously, and without profit or benefit to himself? By analogy, it seems to me that the same principle applies in both cases, and that the law will interpose and prevent the wanton injury in both cases.... It must be remembered that no man has a legal right to make a malicious use of his property ... for the avowed purpose of damaging his neighbor. To hold otherwise would make the law a convenient engine in cases like the present to injure and destroy the peace and comfort, and to damage the property, of one’s neighbor, for no other than a wicked purpose, which in itself is or ought to be unlawful. The right to do this cannot, in an enlightened country, exist either in the use of property or in any way or manner.... The right to breathe the air, and to enjoy the sunshine, is a natural one; and no man can pollute the atmosphere, or shut out the light of heaven, for no better reason than that the situation of his property is such that he is given the opportunity of so doing, and wishes to gratify his spite and malice towards his neighbor.” Morse, J., in Burke _v._ Smith, 69 Mich. 380, approved and unanimously adopted in Flaherty _v._ Moran, 81 Mich. 52, above cited.

“While one may in general put his property to any use he pleases not in itself unlawful, his neighbor has the same right to the undisturbed enjoyment of his adjoining property.... What standard does the law provide?... Whatever may be the law in other jurisdictions, it must be regarded as settled in this state that the test is the reasonableness or unreasonableness of the business in question under all the circumstances.” Ladd _v._ Brick Co., 68 N. H. 185,186. “The common-law right of the ownership of land, in its relationship to the control of surface water, as understood by the courts of this state for many years, does not sanction or authorize practical injustice to one landowner by the arbitrary and unreasonable exercise of the right of dominion by another” (Franklin _v._ Durgee, _supra_), but makes the test of the right the reasonableness of the use under all the circumstances. In such case the purpose of the use, whether understood by the landowner to be necessary or useful to himself, or merely intended to harm another, may be decisive upon the question of right. It cannot be justly contended that a purely malicious use is a reasonable use. The question of reasonableness depends upon all the circumstances—the advantage and profit to one of the use attacked, and the unavoidable injury to the other. Where the only advantage to one is the pleasure of injuring another, there remains no foundation upon which it can be determined that the disturbance of the other in the lawful enjoyment of his estate is reasonable or necessary. There is no sound ground upon which a distinction can be made against the plaintiff’s right to use his land for the enjoyment of the air and light which naturally come upon it, in favor of his right to use it to enjoy the waters which naturally flow upon or under it, except the fact that the use of land for buildings necessarily cuts off air and light from the adjoining estate. The fact that the improvement of real estate in this way for a useful purpose, universally conceded to be reasonable, may affect the adjoining owner’s enjoyment of his estate to the same extent as a like act done solely to injure the other, is not a sufficient reason for distinguishing the right to build upon the surface from the right to dig below it or to control the surface itself. Jurisdictions which reject the doctrine of reasonable necessity, reasonable care, and reasonable use, which “prevail in this state in a liberal form, on a broad basis of general principle” (Haley _v._ Colcord, 59 N. H. 7), as applied to the ownership of real estate, in favor of the principle of absolute dominion, may properly consider a malicious motive immaterial upon the rightfulness of a particular use; but in this state, to do so would be to reject the principle announced in Bassett _v._ Company, 43 N. H. 569, and repeatedly reaffirmed during the last forty years.

It is to be conceded that the maxim _sic utere tuo ut alienum non lædas_ is to be applied as forbidding injury, not merely to the property, but to the right of another. Ladd _v._ Brick Co., 68 N. H. 185; Pittsburg, &c. R’y _v._ Bingham, 29 Ohio St. 364; Letts _v._ Kessler, 54 Ohio St. 73; Bonomi _v._ Backhouse, E. B. & E. 622, 643; Jeffries _v._ Williams, 5 Exch. 792. But the landowner’s right in the enjoyment of his estate being that of reasonable use merely, there attaches at once to each the correlative right not to be disturbed by the malicious, and hence unreasonable, use made by another. To hold that a right is infringed because, by the noxious use made by another, the air coming upon a landowner’s premises is made more or less injurious, and to deny the invasion of a right by an unreasonable use which shuts off air and light entirely, is an attempt to bound a right inherent and essential to the common enjoyment of property by the limitations of an ancient form of

## action. An unreasonable use of one estate may constitute a nuisance by

its diminution of the right of enjoyment of another, without furnishing all the elements necessary to maintain an action _quare clausum fregit_; though in particular cases it may be said that no right is invaded unless something comes from the one lot to the other. Lane _v._ Concord, 70 N. H. 485, 488, 489; Thompson _v._ Androscoggin Co., 54 N. H. 545, 552; Wood, Nuis., s. 611. As, therefore, the statute does not deprive the plaintiff of any right to reasonable use, it does not deprive him of any property right. Hence it is not necessary to inquire whether, as an invasion of property rights, the limitation of the statute is one which might properly be made for the general good.

* * * * *

The objection based upon the unconstitutionality of the statute is not sustained, and the exception to the denial of the motions for a nonsuit and to direct a verdict upon that ground is overruled.

[The verdict was set aside on account of an erroneous ruling as to the admission of evidence][589]

KEEBLE _v._ HICKERINGILL IN THE QUEEN’S BENCH, TRINITY TERM, 1706. _Reported in 11 East, 574, note._

## Action upon the case. Plaintiff declares that he was, 8th November in

the second year of the Queen, lawfully possessed of a close of land called Minott’s Meadow, _et de quodam vivario, vocato_ a decoy pond, to which divers wild fowl used to resort and come; and the plaintiff had at his own costs and charges prepared and procured divers decoy ducks, nets, machines, and other engines for the decoying and taking of the wild fowl, and enjoyed the benefit in taking them: the defendant knowing which, and intending to damnify the plaintiff in his vivary, and to fright and drive away the wild fowl used to resort thither, and deprive him of his profit, did, on the 8th of November, resort to the head of the said pond and vivary, and did discharge six guns laden with gunpowder, and with the noise and stink of the gunpowder did drive away the wild fowl then being in the pond: and on the 11th and 12th days of November the defendant, with design to damnify the plaintiff, and fright away the wild fowl, did place himself with a gun near the vivary, and there did discharge the said gun several times that was then charged with the gunpowder against the said decoy pond, whereby the wild fowl were frighted away, and did forsake the said pond. Upon not guilty pleaded, a verdict was found for the plaintiff and £20 damages.

HOLT, C. J. I am of opinion that this action doth lie. It seems to be new in its instance, but is not new in the reason or principle of it. For, first, this using or making a decoy is lawful. Secondly, this employment of his ground to that use is profitable to the plaintiff, as is the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken is not prohibited either by the law of the land or the moral law; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kill and destroy wild fowl or tame cattle. Then when a man useth his art or his skill to take them, to sell and dispose of for his profit; this is his trade; and he that hinders another in his trade or livelihood is liable to an action for so hindering him. Why otherwise are scandalous words spoken of a man in his profession actionable, when without his profession they are not so? Though they do not affect any damage, yet are they mischievous in themselves; and therefore in their own nature productive of damage; and therefore an action lies against him. Such are all words that are spoken of a man to disparage him in his trade, that may bring damage to him; though they do not charge him with any crime that may make him obnoxious to punishment; as to say a merchant is broken, or that he is failing, or is not able to pay his debts, 1 Roll. 60, 1; all the cases there put. How much more, when the defendant doth an actual and real damage to another when he is in the very act of receiving profit by his employment. Now there are two sorts of acts for doing damage to a man’s employment, for which an action lies; the one is in respect of a man’s privilege; the other is in respect of his property. In that of a man’s franchise or privilege whereby he hath a fair, market, or ferry, if another shall use the like liberty, though out of his limits, he shall be liable to an action; though by grant from the King. But therein is the difference to be taken between a liberty in which the public hath a benefit, and that wherein the public is not concerned. 22 H. 6, 14, 15. The other is where a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood; there an action lies in all cases. But if a man doth him damage by using the same employment; as if Mr. Hickeringill had set up another decoy on his own ground near the plaintiff’s, and that had spoiled the custom of the plaintiff, no action would lie, because he had as much liberty to make and use a decoy as the plaintiff. This is like the case of 11 H. 4, 47. One schoolmaster sets up a new school to the damage of an ancient school, and thereby the scholars are allured from the old school to come to his new. (The action there was held not to lie.) But suppose Mr. Hickeringill should lie in the way with his guns, and fright the boys from going to school, and their parents would not let them go thither; sure that schoolmaster might have an action for the loss of his scholars. 29 E. 3, 18. A man hath a market, to which he hath toll for horses sold: a man is bringing his horse to market to sell: a stranger hinders and obstructs him from going thither to the market: an action lies, because it imports damage. Action upon the case lies against one that shall by threats fright away his tenants at will. 9 H. 7, 8; 21 H. 6, 31; 9 H. 7, 7; 14 Ed. 4, 7; Vide Rastal. 662; 2 Cro. 423. Trespass was brought for beating his servant, whereby he was hindered from taking his toll; the obstruction is a damage, though not the loss of his service.[590]

IBOTTSON _v._ PEAT IN THE EXCHEQUER, MAY 1, 1865. _Reported in 3 Hurlstone & Coltman, 644._

BRAMWELL, B.[591] I am also of opinion that the plaintiff is entitled to judgment. The declaration states that the plaintiff being possessed of certain land, the defendant unlawfully and with intent to drive and frighten away game then being on the land of the plaintiff, and to prevent him from shooting them, fired rockets and combustibles close to and over the land of the plaintiff, so as to be a nuisance to him. The defendant by his plea admits that the matter alleged is true, but sets up a right to do what is complained of for the purpose attributed to the defendant in the declaration, viz., to prevent him from shooting the game. Then what is the reason given? It is this:—“The game which I frightened was game which you enticed away from the Duke of Rutland’s land, by placing corn and other food for them on your land; and therefore I, as the servant of the Duke, in order to prevent you from shooting the game, and from continuing to entice them, did the acts complained of.” In my opinion that is a bad plea. There is nothing in point of law to prevent the plaintiff from doing that which the plea alleges he has done. I say “in point of law,” because it cannot be contended for a moment that any action would lie against the plaintiff. As to the propriety of such conduct between gentlemen and neighbors I say nothing. Where a person’s game is attracted from his land, he ought to offer them stronger inducements to return to it. It is like the case I referred to in the course of the argument, Chasemore _v._ Richards, 2 H. & N. 168, 7 H. L. 349, which shows that if a man has the misfortune to lose his spring by his neighbor digging a well, he must dig his own well deeper.

_Judgment for the plaintiff._

FISHER _v._ FEIGE SUPREME COURT, CALIFORNIA, JULY 14, 1902. _Reported in 137 California Reports, 39._

Appeal by defendants from a judgment in favor of plaintiff.

Plaintiff is a lower riparian proprietor on a certain watercourse, and defendants are upper riparian proprietors thereon. The action was brought to recover damages in the sum of five thousand dollars for certain alleged interferences by defendants with the flow of the water in the stream, and for a perpetual injunction restraining defendants from their repetition of the alleged wrongs.[592]

It is averred that along and adjacent to the stream as it flows through defendants’ land there is a heavy growth of timber, which, before the alleged wrongful acts of defendants, protected the waters of the stream from evaporation by drying winds and the rays of the sun, and that the defendants have cut and felled a large number of trees, and thus let in the sun and the wind and caused the waters to be diminished by evaporation, so that not as much flowed down on to plaintiff’s land as formerly; and that they threatened to fell more of said trees in the future.

It is also averred, and found by the court, that said acts were done by defendants “solely for the purpose of injuring the plaintiff and damaging his said property, and out of spite and ill-will towards the plaintiff.”

The court found that plaintiff was damaged in the sum of one cent by the alleged wrongs, for which amount judgment was rendered. By the judgment the defendants were also “perpetually enjoined” ... “from cutting or felling the timbers and trees growing in the channel and upon the immediate banks of said stream at any point above the said lands of the plaintiff, whereby the said stream will be exposed to the rays of the sun and the waters thereof lost or materially diminished by evaporation.”

Defendants appealed from the judgment.

MCFARLAND, J. [After discussing the question of motive.]

... Under the facts found we cannot see how the lawfulness of the acts enjoined can depend upon the motives by which they were done, or may be done in the future.

It is found that the defendants did fell trees on their lands, and threatened to fell more, the effect of which was, and would be, to let in the sun and winds, and thus increase evaporation.

* * * * *

It is quite apparent that cutting trees upon one’s own land is a lawful act, which cannot be restrained because it “lets in the sun” and causes more evaporation; any incidental damage which might come to a lower riparian owner from such lawful act would clearly be _damnum absque injuria_.

* * * * *

_Judgement reversed._

TEMPLE, J., and HENSHAW, J., concurred.

ALLEN _v._ FLOOD IN THE HOUSE OF LORDS, DECEMBER 14, 1897. _Reported in [1898] Appeal Cases, 1._

The plaintiffs (now the respondents), Flood and Taylor, are members of the Shipwrights’ Provident Union.[593] The defendant (now the appellant), Allen, is a member and the London delegate of the Independent Society of Boilermakers and Iron and Steel Shipbuilders. The latter society restricts the labor of its members to ironwork. The society of shipwrights permits its members to work either in wood or iron. The members of the boilermakers’ society are accustomed to claim that the proper business of shipwrights is to work in wood only, and that shipwrights who work in iron are trespassing on the trade of the boilermakers’ union.[594]

In April, 1894, about forty men of the boilermakers’ society were engaged at the Regent Dock, Millwall, in repairing an iron ship, on the employment of the Glengall Iron Company. Flood and Taylor were at the same time employed by the Glengall Company to execute repairs upon the woodwork of the vessel. By the terms of their employment they were entitled to leave at the close of any day; and the Glengall Company might, at the close of any day cease to employ them further. The ironworkers were employed on similar terms.[595]

The boilermakers, on discovering that Flood and Taylor had shortly before been employed by another firm (Mills & Knight) on the Thames in doing ironwork on a ship, became much excited, and began to talk of leaving their employment. One of them telegraphed for Allen, their London delegate. Allen came, dissuaded them from leaving work at dinner-time, and told them that they must wait and see how things were settled. Allen then had an interview with Halkett, the Glengall Company’s manager. As to what took place at this interview, the testimony at the subsequent trial was conflicting. The version most favorable to the plaintiffs was substantially as follows:—

Allen told Halkett that he (Allen) had been sent for because Flood and Taylor were known to have done ironwork in Mills & Knight’s yard, and that unless Flood and Taylor were discharged all the members of the boilermakers’ society would be “called out” or “knock off” work that day; that Halkett had no option; that there was no ill-feeling towards the Glengall Company or towards Flood and Taylor personally,[596] but that the iron-men were doing their best to put an end to the practice of Shipwrights doing ironwork, and that wherever these men were employed, or other shipwrights who had done ironwork, the boilermakers would cease work,—in every yard on the Thames.

If the boilermakers had been called out, it would have stopped the Glengall Company’s business. For fear that the threat would be carried out, Halkett discharged Flood and Taylor at the close of the day.

An action was then brought by Flood and Taylor against three persons, viz., Allen, the London delegate; Jackson, the chairman; and Knight, the general secretary of the Boilermakers’ Society.[597] The plaintiffs’ allegations were: that the defendants, maliciously and wrongfully and with intent to injure the plaintiffs, procured and induced the Glengall Company to break their contract with the plaintiffs and not to enter into new contracts with them; and also, maliciously, etc., intimidated and coerced the Glengall Company to break their contract with plaintiffs and not to enter into new contracts, and also unlawfully and maliciously conspired with others to do the above acts.

The case was tried by jury before KENNEDY, J.

The learned judge ruled that there was not “a shred of evidence of any conspiracy at all;” that there was “no evidence of anything amounting to intimidation or coercion in any legal sense of the term;”[598] and that there was no breach of contract.

The following questions, among others, were put to the jury:—

1. Did the defendant Allen maliciously induce the Glengall Iron Company to discharge the plaintiffs or either of them from their employment?

2. Did the defendant Allen maliciously induce the Glengall Iron Company not to engage the plaintiffs or either of them?

In putting these questions to the jury, KENNEDY, J., gave some explanations, portions of which are, in substance, as follows:[599] “The word ‘malice’ is a word of art in law, and it does not mean in this case a personal dislike, a personal feeling of resentment against the two plaintiffs. It is clear from the evidence of the men and of their employers that there was no such personal feeling in this case. The question that I want you to answer is, that, if you find he induced the Glengall Iron Company, by the threat which is suggested by the plaintiffs of calling out all the men on strike, did he do that with the malicious intention which I have endeavored to explain, that is, merely, not for the purpose of forwarding that which he believed to be his interest as a delegate of his union in the fair consideration of that interest but for the purpose of injuring these plaintiffs, and preventing them doing that which they were each of them entitled to do. ‘Maliciously’ means, connected with the word ‘induce,’ this,—that it was not for the mere purpose of forwarding fairly Allen’s own interests, but from the indirect motive of doing a mischief to the plaintiffs in their lawful business.”

The jury answered both questions in the affirmative; and also found that each plaintiff had suffered 20_l._ damages.

After consideration, KENNEDY, J., entered judgment for the plaintiffs against Allen for 40_l._ This decision was affirmed by the Court of Appeal (LORD ESHER, M. R., LOPES and RIGBY, L.JJ.); L. R. (1895) 2 Q. B. 21.

Against these decisions, Allen brought the present appeal to the House of Lords. The appeal was first argued in December, 1895. Their Lordships having required further argument, the appeal was reargued in March and April, 1897. The following Judges were summoned to attend[600] at the second argument: HAWKINS, MATHEW, CAVE, NORTH, WILLS, GRANTHAM, LAWRENCE, and WRIGHT, JJ.

At the close of the arguments, the following question was propounded to the Judges: Assuming the evidence given by the plaintiffs’ witnesses to be correct, was there any evidence of a cause of action fit to be left to the jury?

MATHEW, J., and WRIGHT, J., answered the question in the negative; and the other six Judges in the affirmative.

After the delivery of the opinions of the Judges, the House took time for consideration.

Dec. 14, 1897. LORD HALSBURY, L. C.... The first objection made to the plaintiff’s right to recover for the loss which they thus undoubtedly suffered is that no right of the plaintiffs was infringed, and that the right contended for on their behalf is not a right recognized by law, or, at all events, only such a right as every one else is entitled to deprive them of if they stop short of physical violence or obstruction. I think the right to employ their labor as they will is a right both recognized by the law and sufficiently guarded by its provisions to make any undue interference with that right an

## actionable wrong.

Very early authorities in the law have recognized the right; and, in my view, no authority can be found which questions or qualifies it. The schoolmaster who complained that his scholars were being assaulted and brought an action, the quarry owner who complained that his servants were being menaced and molested, were both held to have a right of action. And it appears to me that the importance of those cases, and the principle established by them, have not been sufficiently considered. It is said that threats of violence or actual violence were unlawful means: the lawfulness of the means I will discuss hereafter. But the point on which these cases are important is the existence of the right. It was not the schoolmaster who was assaulted; it was not the quarry owner who was assaulted or threatened; but, nevertheless, the schoolmaster was held entitled to bring an action in respect of the loss of scholars attending his school, and the quarry owner in respect of the loss of workmen to his quarry. They were third persons; no violence or threats were applied to them, and the cause of action, which they had a right to insist on, was the indirect effect upon themselves of violence and threats applied to others.

My Lords, in my view these are binding authorities to show that the preliminary question, namely, whether there was any right of the plaintiffs to pursue their calling unmolested, must be answered in the affirmative. The question of what is the right invaded would seem to be reasonably answered, and the universality of the right to all Her Majesty’s subjects seems to me to be no argument against its existence. It is, indeed, part of that freedom from restraint, that liberty of action, which, in my view, may be found running through the principles of our law.

* * * * *

First it is said that the company were acting within their legal rights in discharging the plaintiffs. So they were; but does that affect the question of the responsibility of the person who caused them so to act by the means he used? The scholars who went away from the school were entitled to do so. The miners were entitled to cease working at the quarry. The natives were entitled to avoid running the risk of being shot; but the question is, What was the cause of their thus exercising their legal right?

The question must be whether what was done in fact, and what did in fact procure the dismissal of the plaintiff, was an actionable wrong or not. I have never heard that a man who was dismissed from his service by reason of some slander could not maintain an action against the slanderer because the master had a legal right to discharge him.

* * * * *

It will be observed that Kennedy, J., draws a distinction between the conduct which he assumes to be lawful on Allen’s part to do what he did do if it were merely for the purpose of forwarding that which he believed to be his interest as a delegate of his union in fair consideration of that interest on the one hand, and on the other hand his conduct if what he did was done for the purpose of injuring these plaintiffs.

My Lords, it appears to me that that is a direction of which the defendants cannot complain, since it puts what is to my mind an alternative more favorable to them. In my view, his belief that what he was doing was for his interest as a delegate of his union would not justify the doing of what he did do. It is alleged, and to my mind and to the mind of the jury proved, that the employers were compelled under pressure of the threats that he used to discharge the plaintiffs.

* * * * *

But the objection made by the defendants appears to be that the word “malicious” adds nothing; that if the thing was lawful it was lawful absolutely; if it was not lawful it was unlawful,—the addition of the word “malicious” can make no difference. The fallacy appears to me to reside in the assumption that everything must be absolutely lawful or absolutely unlawful. There are many things which may become lawful or unlawful according to circumstances.

In a decision of this House it has undoubtedly been held that whatever a man’s motives may be, he may dig into his own land and divert subterranean water which but for his so treating his own land might have reached his neighbor’s land. But that is because the neighbor had no right to the flow of the subterranean water in that direction, and he had an absolute right to do what he would with his own property. But what analogy has such a case with the intentional inflicting of injury upon another person’s property, reputation, or lawful occupation? To dig into one’s own land under the circumstances stated requires no cause or excuse. He may act from mere caprice, but his right on his own land is absolute, so long as he does not interfere with the rights of others.

But, referring to Bowen, L. J.’s observation, which to my mind is exactly accurate, “in order to justify the intentional doing of that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person’s property or trade,” you must have some just cause or excuse.

Now, the word “malicious” appears to me to negative just cause or excuse; and without attempting an exhaustive exposition of the word itself, it appears to me that, if I apply the language of Bowen, L. J., it is enough to show that this was within the meaning of the law “malicious.”

It appears to me that no better illustration can be given of the distinction on which I am insisting between an act which can be legally done and an act which cannot be so done because tainted with malice, than such a colloquy between the representative of the master and the representative of the men as might have been held on the occasion which has given rise to this action. If the representative of the men had in good faith and without indirect motive pointed out the inconvenience that might result from having two sets of men working together on the same ship, whose views upon the particular question were so diverse that it would be inexpedient to bring them together, no one could have complained; but if his object was to punish the men belonging to another union because on some former occasion they had worked on an iron ship, it seems to me that the difference of motive may make the whole difference between the lawfulness or unlawfulness of what he did.

I see it is suggested by one of your Lordships that the action for malicious prosecution is supposed to be an exception. I am not quite certain that I understand what is the proposition to which it is an exception. If it means that there is no other form of procedure known to the law wherein malice may make the distinction between a lawful and an unlawful act, I am unable to agree. Maliciously procuring a person to be made a bankrupt, maliciously and without reasonable or probable cause presenting a petition to wind up a company, or maliciously procuring an arrest, are equally cases wherein the state of mind of the person procuring the arrest may affect the question of the lawfulness or unlawfulness of the act done.

Again, in slander or libel the right to preserve one’s character or business from attack appears to me quite as vague and general a right as it is suggested is the right to pursue one’s occupation unmolested; and it cannot be denied that in both these cases the lawfulness or unlawfulness of what is said or written may depend upon the absence or presence of malice.

Doubtless there are cases in which the mere presence of malice in an

## act done will not necessarily give a right of action, since no damage

may result; and in this case, however malicious Allen’s intervention may have been, if the employers had defied Allen’s threats instead of yielding to them, the plaintiffs could not have succeeded in an

## action, because they would not have been injured: see Quartz Hill Co.

_v._ Eyre, 11 Q. B. D. 674; Gibbs _v._ Pike, 9 M. & W. 351; Jenings _v._ Florence, (1857) 2 C. B. (N. S.) 467.

* * * * *

LORD WATSON.... There is no expression in the verdict which can be held, either directly or by implication, to impeach the legality of the company’s conduct in discharging the respondents. The mere fact of an employer discharging or refusing to engage a workman does not imply or even suggest the absence of his legal right to do either as he may choose. It is true that the company is not a party to this suit; but it is also obvious that the character of the act induced, whether legal or illegal, may have a bearing upon the liability in law of the person who procured it. The whole pith of the verdict, in so far as it directly concerns the appellant, is contained in the word “maliciously,”—a word which is susceptible of many different meanings. The expression “maliciously induce,” as it occurs upon the face of the verdict, is ambiguous: it is capable of signifying that the appellant knowingly induced an act which of itself constituted a civil wrong, or it may simply mean that the appellant procured, with intent to injure the respondents, an act which, apart from motive, would not have amounted to a civil wrong; and it is, in my opinion, material to ascertain in which of these senses it was used by the jury.

Although the rule may be otherwise with regard to crimes, the law of England does not, according to my apprehension, take into account motive as constituting an element of civil wrong. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad, or indifferent. But the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due. A wrongful act, done knowingly and with a view to its injurious consequences, may, in the sense of law, be malicious; but such malice derives its essential character from the circumstance that the act done constitutes a violation of the law. There is a class of cases which have sometimes been referred to as evidencing that a bad motive may be an element in the composition of civil wrong; but in these cases the wrong must have its root in an act which the law generally regards as illegal, but excuses its perpetration in certain exceptional circumstances from considerations of public policy. These are well known as cases of privilege, in which the protection which the law gives to an individual who is within the scope of these considerations consists in this,—that he may with immunity commit an act which is a legal wrong and but for his privilege would afford a good cause of action against him, all that is required in order to raise the privilege and entitle him to protection being that he shall act honestly in the discharge of some duty which the law recognizes, and shall not be prompted by a desire to injure the person who is affected by his act. Accordingly, in a suit brought by that person, it is usual for him to allege and necessary for him to prove an intent to injure in order to destroy the privilege of the defendant. But none of these cases tend to establish that an act which does not amount to a legal wrong, and therefore needs no protection, can have privilege attached to it; and still less that an act in itself lawful is converted into a legal wrong if it was done from a bad motive.

[After quoting from BOWEN, L. J., in Mogul Steamship Co. _v._ McGregor, and BAYLEY, J., in Bromage _v._ Prosser.]

The root of the principle is that, in any legal question, malice depends, not upon evil motive which influenced the mind of the actor, but upon the illegal character of the act which he contemplated and committed. In my opinion it is alike consistent with reason and common sense that when the act done is, apart from the feelings which prompted it, legal, the civil law ought to take no cognizance of its motive.

It does not appear to me to admit of doubt that the jury, in finding the action of the company to have been maliciously induced by the appellant, simply meant to affirm that the appellant was influenced by a bad motive, namely, an intention to injure the respondents in their trade or calling of shipwrights.

* * * * *

There are, in my opinion, two grounds only upon which a person who procures the act of another can be made legally responsible for its consequences. In the first place, he will incur liability if he knowingly and for his own ends induces that other person to commit an

## actionable wrong. In the second place, when the act induced is within

the right of the immediate actor, and is therefore not wrongful in so far as he is concerned, it may yet be to the detriment of a third party; and in that case, according to the law laid down by the majority in Lumley _v._ Gye, 2 E. & B. 216, the inducer may be held liable if he can be shown to have procured his object by the use of illegal means directed against that third party.

* * * * *

Assuming that the Glengall Iron Company, in dispensing with the further services of the respondents, were guilty of no wrong, I am willing to take it that any person who procured their act might incur responsibility to those who were injuriously affected by it, if he employed unlawful means of inducement directed against them. According to the decision of the majority in Lumley _v._ Gye, 2 E. & B. 216, already referred to, a person who by illegal means, that is, means which in themselves are in the nature of civil wrongs, procures the lawful act of another, which act is calculated to injure, and does injure, a third party, commits a wrong for which he may be made answerable. So long as the word “means” is understood in its natural and proper sense, that rule appears to me to be intelligible; but I am altogether unable to appreciate the loose logic which confounds internal feeling with outward acts, and treats the motive of the actor as one of the means employed by him.

It has been maintained, and some of the learned judges who lent their assistance to the House have favored the argument, that the appellant used coercion as a means of compelling the Glengall Iron Company to terminate their connection with the respondents; but that conclusion does not appear to me to be the fair result of the evidence. If coercion, in the only legal sense of the term, was employed, it was a wrong done as much to the Glengall Iron Company, who are the parties said to have been coerced, as to the respondents. Its result might be prejudicial to the respondents, but its efficacy wholly depended upon its being directed against and operating upon the company. It must be kept in view that the question of what amounts to wrongful coercion in a legal sense involves the same considerations which I have discussed in relation to the elements of a civil wrong as committed by the immediate actor. According to my opinion, coercion, whatever be its nature, must, in order to infer the legal liability of the person who employs it, be intrinsically and irrespectively of its motive a wrongful act. According to the doctrine ventilated in Temperton _v._ Russell, [1893] 1 Q. B. 715, and the present case it need not amount to a wrong, but will become wrongful if it was prompted by a bad motive.

* * * * *

I have already indicated that, in my opinion, no light is thrown upon the decision of the present question by Pitt _v._ Donovan, 1 M. & S. 639, and other cases of that class. The defendant had in that case represented, contrary to the fact, that the plaintiff was insane at the time when he executed a particular deed. The communication was made to a person to whom the defendant was under a legal duty to make the disclosure if it had been true; and the defendant was in law absolved from the ordinary consequences of his having circulated a libel which was false and injurious, if he honestly believed it to be true. The law applicable in cases of that description is, I apprehend, beyond all doubt; but the rule by which the law in certain exceptional cases excuses the perpetration of a wrong, by reason of the absence of evil motive, is insufficient to establish or to support the converse and very different proposition, that the presence of an evil motive will convert a legal act into a legal wrong.

* * * * *

[The opinions of LORD ASHBOURNE, and LORD MORRIS, concurring with LORD HALSBURY, are omitted.]

LORD HERSCHELL.

* * * * *

Great stress was laid at the bar on the circumstance that in an action for maliciously and without reasonable and probable cause putting in motion legal process an evil motive is an essential ingredient. I have always understood and I think that has been the general understanding, that this was an exceptional case. The person against whom proceedings have been initiated without reasonable and probable cause is _prima facie_ wronged. It might well have been held that an action always lay for thus putting the law in motion. But I apprehend that the person taking proceedings was saved from liability if he acted in good faith because it was thought that men might otherwise be too much deterred from enforcing the law, and that this would be disadvantageous to the public. Some of the learned judges cite actions of libel and slander as instances in which the legal liability depends on the presence or absence of malice. I think this is a mistake. The man who defames another by false allegations is liable to an action, however good his motive, and however honestly he believed in the statement he made. It is true that in a limited class of cases the law, under certain circumstances, regards the occasion as privileged, and exonerates the person who has made false defamatory statements from liability if he has made them in good faith. But if there be not that duty or interest which in law creates the privilege, then, though the person making the statements may have acted from the best of motives, and felt it his duty to make them, he is none the less liable. The gist of the action is that the statement was false and defamatory. Because in a strictly limited class of cases the law allows the defence that the statements were made in good faith, it seems to me, with all deference, illogical to affirm that malice constitutes one of the elements of the torts known to the law as libel and slander. But even if it could be established that in cases falling within certain well-defined categories, it is settled law that an evil motive renders actionable acts otherwise innocent, that is surely far from showing that such a motive always makes actionable acts prejudicial to another which are otherwise lawful, or that it does so in cases like the present utterly dissimilar from those within the categories referred to.

* * * * *

If the fact be that malice is the gist of the action for inducing or procuring an act to be done to the prejudice of another, and not that the act induced or procured is an unlawful one as being a breach of contract or otherwise, I can see no possible ground for confining the

## action to cases in which the thing induced is the not entering into a

contract. It seems to me that it must equally lie in the case of every lawful act which one man induces another to do where his purpose is to injure his neighbor or to benefit himself at his expense. I cannot hold that such a proposition is tenable in principle, and no authority is to be found for it. I should be the last to suggest that the fact that there was no precedent was in all cases conclusive against the right to maintain an action. It is the function of the Courts to apply established legal principles to the changing circumstances and conditions of human life. But the motive of injuring one’s neighbor or of benefiting one’s self at his expense is as old as human nature. It must for centuries have moved men in countless instances to persuade others to do or to refrain from doing particular acts. The fact that under such circumstances no authority for an action founded on these elements has been discovered does go far to show that such an action cannot be maintained.

* * * * *

I now proceed to consider on principle the proposition advanced by the respondents, the alleged authorities for which I have been discussing. I do not doubt that every one has a right to pursue his trade or employment without “molestation” or “obstruction,” if those terms are used to imply some act in itself wrongful. This is only a branch of a much wider proposition, namely, that every one has a right to do any lawful act he pleases without molestation or obstruction. If it be intended to assert that an act not otherwise wrongful always becomes so if it interferes with another’s trade or employment, and needs to be excused or justified, I say that such a proposition in my opinion has no solid foundation in reason to rest upon. A man’s right not to work or not to pursue a particular trade or calling, or to determine when or where or with whom he will work, is in law a right of precisely the same nature, and entitled to just the same protection as a man’s right to trade or work. They are but examples of that wider right of which I have already spoken. That wider right embraces also the right of free speech. A man has a right to say what he pleases, to induce, to advise, to exhort, to command, provided he does not slander or deceive or commit any other of the wrongs known to the law of which speech may be the medium. Unless he is thus shown to have abused his right, why is he to be called upon to excuse or justify himself because his words may interfere with some one else in his calling?

* * * * *

[After stating the case of Mogul Steamship Co. _v._ McGregor.]

It was said that this was held lawful because the law sanctions acts which are done in furtherance of trade competition. I do not think the decision rests on so narrow a basis, but rather on this, that the acts by which the competition was pursued were all lawful acts, that they were acts not in themselves wrongful, but a mere exercise of the right to contract with whom, and when, and under what circumstances and upon what conditions they pleased. I am aware of no ground for saying that competition is regarded with special favor by the law; at all events, I see no reason why it should be so regarded. It may often press as hardly on individuals as the defendant’s acts are alleged to have done in the present case. But if the alleged exception could be established, why is not the present case within it? What was the object of the defendant, and the workmen he represented, but to assist themselves in their competition with the shipwrights? A man is entitled to take steps to compete to the best advantage in the employment of his labor, and to shut out, if he can, what he regards as unfair competition, just as much as if he was carrying on the business of a shipowner. The inducement the appellant used to further his end was the prospect that the members of his union would not work in company with what they deemed unfair rivals in their calling. What is the difference between this case and that of a union of shipowners who induce merchants not to enter into contracts with the plaintiffs, by the prospect that if at any time they employ the plaintiffs’ ships they will suffer the penalty of being made to pay higher charges than their neighbors at the time when the defendants’ ships alone visit the ports? In my opinion there is no difference in principle between the two cases.

* * * * *

LORD MACNAGHTEN. My Lords, I am sorry to say that I must begin by recapitulating the facts of the case. For the findings of the jury, taken by themselves, do not convey to my mind any definite meaning. The jury have found that the appellant Allen “maliciously induced” the Glengall Iron Company to discharge the respondents from their service, and they have awarded damages in consequence. I do not know what the jury meant by the word “induced;” I am not sure that I know what they meant by the word “maliciously.” Sometimes, indeed, I rather doubt whether I quite understand that unhappy expression myself. I am therefore compelled to turn for help to the evidence at the trial, accepting, as I suppose the jury must have accepted, the account given by the respondents in preference to that offered by the appellant wherever there may be any shadow of difference between them.

[After a full statement of the evidence.]

Now before I proceed to consider the legal grounds on which Kennedy, J., and the Court of Appeal decided the case against Allen, I should like to ask what there was wrong in Allen’s conduct. He had nothing to do with the origin of the ill-feeling against Flood and Taylor. He did nothing to increase it. He went to the dock simply because he was sent for by one of the men of his union. It seems to be considered the duty of a district delegate to listen to the grievances of the members of his union within his district, and to settle the difficulty if possible. The jury found that the settlement of this dispute was a matter within Allen’s discretion. The only way in which he could settle it was by going and seeing the manager. There was surely nothing wrong in that. There was nothing wrong in his telling the manager that the iron-men would leave their work unless the two shipwrights against whom they had a grudge were dismissed, if he really believed that that was what his men intended to do. As far as their employers were concerned, the iron-men were perfectly free to leave their work for any reason, or for no reason, or even for a bad reason; any one of them might have gone singly to the manager, or they might have gone to him all together (if they went quietly and peaceably), and told him that they would not stay any longer with Flood and Taylor at work among them.

If so, it is difficult to see why fault should be found with Allen for going in their place and on their behalf and saying what they would have said themselves.

* * * * *

As regards the meaning of the word “induce,” I do not think the jury got much assistance. I rather gather from the summing-up that the jury were given to understand that if they thought that Allen merely represented the state of things as it was—and the feeling of the iron-men at the Regent’s Dock—they would be at liberty to answer the questions put to them about Allen in the negative. But the answer must be the other way if they thought that Allen went further, and assumed to represent the union, and to speak as if he had the power of the union at his back; that would be a threat and would amount to “inducing.” Now, I must say that I do not think it can be said that Allen did “induce” the company to discharge the plaintiffs. Certainly it cannot be truly said that he procured them to be discharged. It was not his act that prevented the company from continuing to employ them. If the whole story had been a fiction and an invention on his part I could have understood the finding of the jury. But I do not think there was any misrepresentation on Allen’s part. I do not think there was any exaggeration. Nor, indeed, was any such point made at the trial.

* * * * *

So we see now, I think, what the findings of the jury come to, if they are to be treated as being in accordance with the evidence. They must mean that Allen induced the company to discharge the plaintiffs, by representing to the manager, not otherwise than in accordance with the truth, the state of feeling in the yard, and the intentions of the workmen, and that he did so “maliciously,” because he must have known what the issue of his communication to the manager would be, and naturally perhaps he was not sorry to see an example made of persons obnoxious to his union. But is his conduct actionable? It would be very singular if it were. No action would lie against the company for discharging the two shipwrights. No action would lie against the iron-men for striking against them. No action would lie against the officers of the union for sanctioning such a strike. But if the respondents are right the person to answer in damages is the man who happened to be the medium of communication between the iron-men and the company,—the most innocent of the three parties concerned, for he neither set the “agitation” on foot, nor did he do anything to increase it, nor was his the order that put an end to the connection between employer and employed. It seems to me that the result would have been just the same if Edmonds had told Mr. Halkett what was going on in the yard, or if Mr. Halkett had learned it from Flood and Taylor themselves.

Even if I am wrong in my view of the evidence and the verdict, if the verdict amounts to a finding that Allen’s conduct was malicious in every sense of the word, and that he procured the dismissal of Flood and Taylor, that is, that it was his act and conduct alone which caused their dismissal, and if such a verdict were warranted by the evidence, I should still be of opinion that judgment was wrongly entered for the respondents. I do not think that there is any foundation in good sense or in authority for the proposition that a person who suffers loss by reason of another doing or not doing some act which that other is entitled to do or to abstain from doing at his own will and pleasure, whatever his real motive may be, has a remedy against a third person who, by persuasion or some other means not in itself unlawful, has brought about the act or omission from which the loss comes, even though it could be proved that such person was actuated by malice towards the plaintiff, and that his conduct, if it could be inquired into, was without justification or excuse.

The case may be different where the act itself to which the loss is traceable involves some breach of contract or some breach of duty, and amounts to an interference with legal rights. There the immediate agent is liable, and it may well be that the person in the background who pulls the strings is liable too, though it is not necessary in the present case to express any opinion on that point.

But if the immediate agent cannot be made liable, though he knows what he is about, and what the consequences of his action will be, it is difficult to see on what principle a person less directly connected with the affair can be made responsible unless malice has the effect of converting an act not in itself illegal or improper into an

## actionable wrong. But if that is the effect of malice, why is the

immediate agent to escape? Above all, why is he to escape when there is no one else to blame and no one else answerable? And yet many cases may be put of harm done out of malice without any remedy being available at law. Suppose a man takes a transfer of a debt with which he has no concern for the purpose of ruining the debtor, and then makes him bankrupt out of spite, and so intentionally causes him to lose some benefit under a will or settlement,—suppose a man declines to give a servant a character because he is offended with the servant for leaving,—suppose a person of position takes away his custom from a country tradesman in a small village merely to injure him on account of some fancied grievance not connected with their dealings in the way of buying and selling,—no one, I think, would suggest that there could be any remedy at law in any of those cases. But suppose a customer, not content with taking away his own custom, says something not slanderous or otherwise actionable or even improper in itself to induce a friend of his not to employ the tradesman any more. Neither the one nor the other is liable for taking away his own custom. Is it possible that the one can be made liable for inducing the other not to employ the person against whom he has a grudge? If so, a fashionable dressmaker might now and then, I fancy, be plaintiff in a very interesting suit. The truth is, that questions of this sort belong to the province of morals rather than to the province of law. Against spite and malice the best safeguards are to be found in self-interest and public opinion. Much more harm than good would be done by encouraging or permitting inquiries into motives when the immediate act alleged to have caused the loss for which redress is sought is in itself innocent or neutral in character, and one which anybody may do or leave undone without fear of legal consequences. Such an inquisition would, I think, be intolerable, to say nothing of the probability of injustice being done by juries in a class of cases in which there would be ample room for speculation and wide scope for prejudice.

In order to prevent any possible misconstruction of the language I have used, I should like to add that in my opinion the decision of this case can have no bearing on any case which involves the element of oppressive combination. The vice of that form of terrorism commonly known by the name of “boycotting,” and other forms of oppressive combination, seems to me to depend on considerations which are, I think, in the present case, conspicuously absent.

* * * * *

LORD SHAND.... The case was one of competition in labor, which, in my opinion, is in all essentials analogous to competition in trade, and to which the same principles must apply; and I ask myself what would be the thought of the application of the word “malicious” to the conduct of a tradesman who induces the customer of another tradesman to cease making purchases from one with whom he had long dealt, and instead to deal with him, a rival in trade. The case before the jury was, in my view, in no way different, except that in the one case there was competition in labor,—in the other there would be competition in trade.

Some of the learned consulted judges speak of Allen’s conduct as having been caused by a desire to inflict “punishment” on the shipwrights for past acts, and indicate that, if the shipwrights had been actually working at ironwork on the vessel at the time, the case would have been different.[601]

I cannot agree in any such view. “Punishment” in a wide and popular sense may possibly be used, though incorrectly, to describe the boilermakers’ action; but it is quite clear that what they were resolved to do, and really did, was, while marking their sense of the injury which they thought (rightly or wrongly is not the question) the shipwrights were doing to them in trenching on their proper lines of business, to take a practical measure in their own defence. Their object was to benefit themselves in their own business as working boilermakers, and to prevent a recurrence in the future of what they considered an improper invasion on their special department of work. How this could possibly be regarded as “malicious,” even in any secondary sense that can reasonably be attributed to that term, I cannot see.

* * * * *

Coming now directly to the merits of the question in controversy in the case, the argument of the plaintiffs and the reasons for the opinions of the majority of the consulted judges seem to me to fail, because, although it is no doubt true that the plaintiffs were entitled to pursue their trade as workmen “without hindrance,” their right to do so was qualified by an equal right, and indeed the same right, on the part of other workmen. The hindrance must not be of an unlawful character. It must not be by unlawful action. Amongst the rights of all workmen is the right of competition. In the like manner and to the same extent as a workman has a right to pursue his work or labor without hindrance, a trader has a right to trade without hindrance. That right is subject to the right of others to trade also, and to subject him to competition,—competition which is in itself lawful, and which cannot be complained of where no unlawful means (in the sense I have already explained) have been employed. The matter has been settled in so far as competition in trade is concerned by the judgment of this House in the Mogul Steamship Co. Case, [1892] A. C. 25. I can see no reason for saying that a different principle should apply to competition in labor. In the course of such competition, and with a view to secure an advantage to himself, I can find no reason for saying that a workman is not within his legal rights in resolving that he will decline to work in the same employment with certain other persons, and in intimating that resolution to his employers.

* * * * *

[The opinions of LORD DAVEY and LORD JAMES OF HEREFORD, in favor of reversing the order of the Court of Appeal are omitted.]

_Order of the Court of Appeal reversed and judgment entered for the appellant with costs here and below including the costs of the trial: cause remitted to the Queen’s Bench Division._[602]

LEATHEM _v._ CRAIG QUEEN’S BENCH DIVISION, IRELAND, NOVEMBER 22, 1898. COURT OF APPEAL, IRELAND, MAY 2, 1899. _Reported in [1899] 2 Irish Reports, 667, 744_.

QUINN _v._ LEATHEM IN THE HOUSE OF LORDS, AUGUST 5, 1901. _Reported in [1901] Appeal Cases, 495._[603]

This was an action tried before FitzGibbon, L. J., at the Belfast Summer Assizes, 1896, brought against the defendants for damages for maliciously and wrongfully procuring certain persons to break contracts into which they had entered with the plaintiff, and not to enter into other contracts with the plaintiff; and for maliciously and wrongfully enticing and procuring certain workmen in the employment of such persons to leave the service of their employers and to break their contracts of service, with intent to injure the plaintiff, and to prevent such persons from carrying out their contracts with the plaintiff, and from entering into other contracts with the plaintiff; and for maliciously and wrongfully intimidating such persons, and coercing them to break their contracts with the plaintiff; and intimidating such servants in their employ, and coercing them to leave the service of their employers, to the injury of the plaintiff; and for unlawfully conspiring, together with other persons, to do the acts aforesaid, with intent to injure the plaintiff.

There was also a paragraph in the statement of claim, claiming damages for the publication of the plaintiff’s name in a “black list,” issued by the defendants, and a prayer for an injunction to prevent the continuance and repetition of the acts complained of.

The following facts were proved. The plaintiff was a butcher at Lisburn, in the county of Antrim, about eight miles from Belfast, where he had carried on business for a number of years. He had in his employment one Robert Dickie, his foreman, who had been with him for ten years. The plaintiff had been in the habit of sending large quantities of meat to Andrew Munce, a butcher in Belfast, and had been doing so for some twenty years. There was no contract in writing between them; but, whatever amount the plaintiff sent, Munce took and paid for—the amount being, on an average, of the value of £30 a week.

The defendants John Craig, John Davey, and Joseph Quinn were butchers’ assistants in Belfast; and the defendants, Henry Dornan and Robert Shaw, butchers’ assistants in Lisburn. In the spring of 1895 these defendants and several others in the same occupation formed themselves into an association, which was duly registered under the Trade Union Acts, 1871 and 1876, under the title of “The Belfast Journeymen Butchers’ Assistants’ Association,” of which the defendant Davey became the Secretary. The plaintiff’s men were not members of the association. At the commencement of July, 1895, the defendants’ association required the plaintiff to dismiss Robert Dickie from his employment, which he refused to do. Upon that the defendants’ society threatened to withdraw the plaintiff’s men from his service. A deputation was sent down to meet the plaintiff at Lisburn, and a meeting was held in Magill’s public-house, Lisburn, on the 9th July, at which the defendants Craig, Quinn, Dornan, and Shaw were present—Craig being in the chair. The plaintiff stated that he had come on behalf of his men, and was ready to pay all fines and demands against them, and asked to have them admitted into the society. The defendant Shaw objected, and said that the plaintiff’s men should be punished, and should be put out to walk the streets for twelve months. The plaintiff objected to this, as Dickie was a married man with a family. Shaw moved, and Morgan seconded a resolution that the plaintiff’s assistants should be called out, and it was carried. The defendants stated that they could pick out plenty of men to work for the plaintiff from their list; the plaintiff replied that they were not suitable for his business, and refused to put his own men out. Craig then said that the plaintiff’s meat would be stopped at Munce’s, if the plaintiff would not comply with their wishes. The plaintiff still refused. The defendants then called out some of the plaintiff’s employees. Edward Dickie, a servant of the plaintiff, was brought to a meeting of the defendants’ society, held over Dornan’s shop in Lisburn, and was ordered to leave the plaintiff, the society undertaking to pay him the same wages as he had been receiving from the plaintiff. Dickie, yielding to this order, left the plaintiff without notice. “Black lists” were issued by the society upon which the names of persons were posted who had offended against the society’s rules. Leathem’s name was posted, and also the name of John M’Bride, a flesher in Lisburn, who was dealing with the plaintiff. Subsequently, however, Dornan and others of the defendants came to M’Bride; and on his undertaking not to deal any more with Leathem, his name was struck out.

On the 6th September, 1895, the defendant Davey wrote to the plaintiff the following letter:—

“I have been instructed to write you if you would be kind enough to reply on or before Tuesday, 10th, whether you have made up your mind to continue to employ non-union labour. If you continue as at present, our society will be obliged to adopt extreme measures in your case. Trusting that you will see the wisdom of acceding to our views at once, I remain,” &c.

On the 13th September, Davey wrote to Munce:—

“A deputation has been appointed to wait on you, or your responsible representative, on Monday evening, the 16th inst., at 6.30 p. m., to come to a decision in regard to this case of Leathem & Sons, as we are anxious to have a settlement at once.”

To this Munce replied:—

“In reply to your letter _re_ Leathem & Sons, I cannot see my way to attend any deputation of the sort, as it is quite out of my province to interfere with the liberty of any man. But why refer to me in this matter? I do not think it fair for you to come at me in the matter, seeing it appears to be the Messrs. Leathem that you wish to interfere with.”

On the 16th September a deputation of the defendants’ society went to Munce’s establishment, and had an interview with W. F. Munce, the son of Andrew Munce, and asked him to put pressure on his father to stop dealing with the plaintiff. W. F. Munce replied by letter on the 17th September:—

“A deputation of the Journeymen Butchers’ Association waited at Corn Market yesterday evening, with reference to the case of the purchase of meat from Henry Leathem, Lisburn. In accordance with promise, I placed the views of the deputation before Mr. Munce, and in reply he wishes to state he could not interfere to bring pressure to bear on Mr. Leathem to employ none but society men, by refusing to purchase meat from him, as that would be outside his province, and would be interfering with the liberty of another man; but at the same time he will strongly recommend Mr. Leathem to adopt the views of the Journeymen Butchers’ Association, and employ men belonging to the society.”

On the 18th September Davey wrote to Andrew Munce:—

“Have submitted your letter to committee. They are of opinion that in the main it is unsatisfactory, but thanking you kindly for your recommendation to Mr. Leathem, with whom we have endeavoured to make a satisfactory arrangement, but have failed; so therefore have no other alternative but to instruct your employees to cease work immediately Leathem’s beef arrives.”

On the 19th September Munce telegraphed to Leathem:—

“Unless you arrange with society you need not send any beef this week, as men are ordered to quit work.”

Munce ceased to deal with the plaintiff, and the plaintiff was obliged to sell off the meat he had on hand at a heavy loss at any price he could get. In consequence of these transactions the plaintiff’s business was ruined.

The case was tried before FitzGibbon, L. J., at the Summer Assizes of 1896, at Belfast. The defendants did not offer any evidence, their counsel asking for a direction on the grounds: 1, that to sustain the

## action a contract made with Leathem must be proved to have been made and

broken through the acts of the defendants, and that there was no evidence of such contract or breach; 2, that there was no evidence of pecuniary damage to the plaintiff through the acts of the defendants; 3, that the ends of the defendants and the means taken by them to promote those ends as appearing in evidence were legitimate, and there was no evidence of actual damage to the plaintiff.

The learned Lord Justice declined to withdraw the case from the jury, and left to them the following questions:—

1. Did the defendants, or any of them, wrongfully and maliciously induce the customers or servants of the plaintiff named in the evidence to refuse to deal with the plaintiff? _Answer_: Yes.

2. Did the defendants, or any two or more of them maliciously conspire to induce the plaintiff’s customers or servants named in the evidence, or any of them, not to deal with the plaintiff or not to continue in his employment; and were such persons so induced not so to do? _Answer_: Yes.

3. Did the defendants Davey, Dornan, and Shaw, or any of them, publish the “black lists” with intent to injure the plaintiff in his business; and, if so, did the publication so injure him? _Answer_. Yes.

FitzGibbon, L. J., in summing up, told the jury that pecuniary loss, directly caused by the conduct of the defendants, must be proved in order to establish a cause of action; and he advised them to require to be satisfied that such loss to a substantial amount had been proved by the plaintiff. He declined to tell them that, if actual and substantial pecuniary loss was proved to have been directly caused to the plaintiff by the wrongful acts of the defendants, they were bound to limit the amount of damages to the precise sum so proved. He told them that, if the plaintiff gave the proof of actual and substantial loss necessary to maintain the action, they were at liberty in assessing damages to take all the circumstances of the case, including the conduct of the defendants, reasonably into account. The Lord Justice did not tell the jury that the liability of the defendants depended on any question of law. He told them that the questions left to them were questions of fact to be determined on the evidence; but that they included questions as to the intent of the defendants, and, in particular, their intent to injure the plaintiff in his trade as distinguished from the intent of legitimately advancing their own interests. The Lord Justice did not tell the jury that the defendants could be directly asked what their own intention was, but he did tell them that their intention was to be inferred from their acts and conduct as proved, and that, in acting upon the evidence given by the plaintiff, they were at liberty to have regard to the fact that the defendants, who might have given the best evidence on the subject, had not been produced to explain, qualify, or contradict any of the evidence given for the plaintiff as to their own acts. Upon the meaning of the words “wrongfully and maliciously” in the questions, the Lord Justice told the jury that they had to consider whether the intent and actions of the defendants went beyond the limits which would not be actionable, namely, securing or advancing their own interests, or those of their trade, by reasonable means, including lawful combination, or whether their acts, as proved, were intended and calculated to injure the plaintiff in his trade, through a combination and with a common purpose, to prevent the free action of his customers and servants in dealing with him, with the effect of actually injuring him, as distinguished from acts legitimately done to secure or advance their own interests. Finally, he told the jury that acts done with the object of increasing the profits or raising the wages of any combination of persons such as the society to which the defendants belonged, whether employers or employed, by reasonable and legitimate means, were perfectly lawful and were not actionable so long as no wrongful act was maliciously—that is intentionally—done to injure a third party. To constitute such a wrongful act for the purposes of this case, the Lord Justice told the jury that they must be satisfied that there had been a conspiracy, a common intention, and a combination, on the part of the defendants to injure the plaintiff in his business; and that acts must be proved to have been done by the defendants in furtherance of that intention which had inflicted actual money loss upon the plaintiff in his trade; and that whether the acts of the defendants were or were not in that sense actionable, was the question which the jury had to try upon the evidence.

The jury found for the plaintiff with £250 damages, of which £50 was separately assessed for damages on the cause of action relating to the “black list,” and £200 for damages on the other causes of action and judgment was thereupon entered for the plaintiff for £250 damages and costs.

The defendants now moved to set aside the verdict and judgment so had, and that judgment should be entered for them on the ground of misdirection; or for a new trial, on the ground that the damages were excessive, and that the jury were allowed to take the “black lists” into account.

WILLIAM O’BRIEN, J....

The right infringed is the right to live by labor.

* * * * *

Physical hindrances, or prevention of labor by physical means, it was conceded, would be the invasion of a right, and that would certainly be the case whether the restraint was applied to the employer or to the workman.

* * * * *

If temporal loss were not coercion, it could be used to the degree of a person being starved. The proposition on which the judgment of the majority (in Allen _v._ Flood) was founded in this respect is opposed to the whole analogy of the law that makes duress of property, or menace of temporal loss, as effectual as physical violence to avoid all kinds of acts.

* * * * *

In The Mogul Steamship Company _v._ M’Gregor, [1892] A. C. 25, the trade of the defendants was the primary object, and the injury to the plaintiffs was the result of the means taken to advance that object. There, as in Allen _v._ Flood, [1898] A. C. 1, the injury to others was the thing intended, as the means of carrying out another object.

* * * * *

There is an observation which appears to me to gather up several of the fallacies which are scattered through the arguments in the judgments of the majority in Allen _v._ Flood, [1898] A. C. 1. The case is put by Lord Watson as if it were a question whether a person could be made liable for doing, from a malicious motive, what, without such motive he could do lawfully. In fact there are cases in law in which the malice makes the distinction of what is lawful or unlawful, as in malicious prosecution, or takes away the right that otherwise exists, as in the instance of privileged communication. But that is not the present case at all, as it was not that of Allen _v._ Flood, [1898] A. C. 1. The defendant, who maliciously instigated the thing, is not the person who possessed the power of dismissal. Therefore the supposed constitutional objection, that the law could not enter into a man’s mind, has no place. The same point meets the case of the butler and the cook that was put in the argument. The butler tells his master he will leave unless the cook is dismissed. Lord Herschell snatched at the admission of counsel, that the cook could bring an action, as being the logical conclusion from his argument. With great respect, it is neither logical nor the law. The servant is the master of his own actions. He can choose his own company, though even for that object he cannot use threats. But in this case it was another person that assumed to choose his company for him. Allen was not a boiler-maker, as Craig was not a butcher, who wished to leave. Each was a member of a trade organization, and had no duty or interest of his own to interfere. What relation could such a position assume but that of intimidation?

* * * * *

... a confusion of relations, in applying the proposition that a person cannot be made liable for maliciously exercising a right which he possesses. The action here is for maliciously causing another person to exercise a right which that other person possessed. In one case, the right may be said to absorb the malice, though there are exceptions to the rule in the common law. But how can it absorb another man’s malice?

* * * * *

What wrong can be conceived more cruel and grievous than wilfully depriving men of their employment? There must be a right, correlative to the wrong. What right can be more sacred than the right to live by a man’s labor? But then, it is said, the wrong and the right are subject to the legal power of another person. That is the case in many instances, in which the law nevertheless gives a remedy for wrong that requires the exercise of another person’s will. That is the case of a person who is defamed; the damage comes from those who hear. That is the case of malicious prosecution; the agency is that of the law. The servant who is enticed away from his master, leaves of his own will. The woman who left her husband, in Winsmore _v._ Greenbank, Willes, 577, did so with her own consent; the actress who broke her engagement, in Lumley _v._ Gye, 2 E. & B. 216, could have performed, if she liked. That is the case of tenants leaving their holdings on account of threats, which is put in 1 Rolle’s Abridgment, 108; Action sur Case, (N.) pl. 21.

Many other examples could be given where the law allows a remedy, though the wrongful act requires the concurrence of another person’s will. The rule is the same as to crimes. The law does not excuse instigation to crime because the other person need not commit the crime, or for the reason that it is impossible to separate the effect of the instigation and natural pravity of will, which was the ground erroneously assigned by Coleridge, J., for his opinion in Lumley _v._ Gye, 2 E. & B. 216. In fact the law makes no distinction between moral and physical agency, or the degrees of the influence, when the cause is attached to the consequence by the verdict of the jury.

* * * * *

The law of conspiracy, which is traced down, in Comyn’s Digest, and after him in the notes to Saunders’ Reports, and in several English judgments as well as in the judgment in Kearney _v._ Lloyd, 26 L. R. Ir. 268, from the obsolete writ of conspiracy, through the action on the case in the nature of conspiracy, with their several distinctions, and which was originally confined to false accusations of crime, has widened out by the expansion of social conditions and the increase of wickedness, until it embraces in its modern extent every kind of wrong committed by several against another, and has been applied in a multitude of instances where the law gives no remedy against an individual, which was the utmost that was determined by Allen _v._ Flood, [1898] A. C. 1.

* * * * *

... a malicious design to deprive a person of his livelihood, the malice being compounded both of the object, and the want of any just motive of personal right. For no one contended at any time that the object of drawing all persons into the pen of a trade union, was a ground of privilege like that which excused the act in The Mogul Steamship Co. _v._ M’Gregor, [1892] A. C. 25, where the defendants merely waged a war of rivalry in their trade. However, if “civil wrong” be understood in the sense of actionable wrong, the rule, so confined, is contrary to a multitude of cases, in which the action was adopted, and in which nevertheless it is most certain there was no legal remedy against a single defendant, even before the decision of Allen _v._ Flood, [1898] A. C. 1. Indeed, that is the express and special use of the action of conspiracy, without which it would find no real place in practice, though it is not impossible such an action could be maintained for what is actionable also in the case of an individual.

* * * * *

There was in this case a direct design to injure the plaintiff. That was malice alone. The act was not done in exercise of any right the defendants possessed. It was done through the agency of another person by improperly influencing his will; and that will was moved solely by their act, and would not otherwise have been exercised. It was done by numbers, to which the law attaches a new and altered quality of more formidable wrong—the foundation of conspiracy—which is a difference in things themselves that can never be taken out of the law, civil or criminal, whilst there is a difference between a man and an army. Lastly, there was the damage which was so unjust as itself to make the

## act malicious.

* * * * *

For the case put, of a person maliciously digging on his own land, and draining the well, of his neighbor, is no exception, and demonstrates the weakness of the argument which is founded on it. In that case the

## act could not be prohibited without interfering with the inherent right

of property; and the right of the neighbor was subject to the right of the contiguous owner. The two rights were equal. The right absorbed the malice, and could not otherwise coexist with it. Here the defendants possessed no right which they could not otherwise exercise; and the right of the plaintiff to carry on his trade was not subject to any right in them. No right of interference with others, which the law could recognize, could attach to the aggressions of a trade union—to their plans for the revision of the relations between employers and employed—to proceedings conducting, by inevitable sequence, to what was lately expressed, with no less energy than the weight attaching to the author, as “the destructive demands of a class upon the fundamental laws on which civil order rests.”

SIR P. O’BRIEN, L. C. J., and ANDREWS, J., delivered opinions in favor of denying defendants’ motion.

PALLES, C. B., dissented, because he felt himself “coerced by the judgment of the House of Lords in Allen _v._ Flood....”

The defendants’ motion was refused with costs.

The case was then carried to the Irish Court of Appeal. In accordance with the opinions there delivered by LORD ASHBOURNE, CHANCELLOR, PORTER, M. R., WALKER, L. J., and HOLMES, L. J., the decision below, as to the verdict and judgment for £200, was affirmed with costs; the judgment for the plaintiff being amended by omitting the part as to the recovery of £50 damages which was separately assessed on account of the “black list.”

HOLMES, L. J., said: “The ‘black list’ was only an overt act of the conspiracy, and the sum awarded for it is included in the £200.”

One of the defendants, Quinn, appealed to the House of Lords.

LORD CHANCELLOR HALSBURY, LORDS MACNAGHTEN, SHAND, BRAMPTON, ROBERTSON, and LINDLEY delivered opinions in favor of dismissing the appeal.

EARL OF HALSBURY, L. C.

* * * * *

[As to the effect of the decision in Allen _v._ Flood.]

Now the hypothesis of fact upon which Allen _v._ Flood was decided by a majority in this House was that the defendant there neither uttered nor carried into effect any threat at all: he simply warned the plaintiff’s employers of what the men themselves, without his persuasion or influence, had determined to do, and it was certainly proved that no resolution of the trade union had been arrived at at all, and that the trade union official had no authority himself to call out the men, which in that case was argued to be the threat which coerced the employers to discharge the plaintiff. It was further an element in the decision that there was no case of conspiracy or even combination. What was alleged to be done was only the independent and single action of the defendant, actuated in what he did by the desire to express his own views in favor of his fellow-members. It is true that I personally did not believe that was the true view of the facts, but, as I have said, we must look at the hypothesis of fact upon which the case was decided by the majority of those who took part in the decision.

* * * * *

LORD MACNAGHTEN.

* * * * *

I do not think that the acts done by the defendants were done “in contemplation or furtherance of a trade dispute between employers and workmen.” So far as I can see, there was no trade dispute at all. Leathem had no difference with his men. They had no quarrel with him. For his part he was quite willing that all his men should join the union. He offered to pay their fines and entrance moneys. What he objected to was a cruel punishment proposed to be inflicted on some of his men for not having joined the union sooner. There was certainly no trade dispute in the case of Munce. But the defendants conspired to do harm to Munce in order to compel him to do harm to Leathem, and so enable them to wreak their vengeance on Leathem’s servants who were not members of the union.

* * * * *

LORD LINDLEY.[604] My Lords, the case of Allen _v._ Flood, [1898] A. C. 1, has so important a bearing on the present appeal that it is necessary to ascertain exactly what this House really decided in that celebrated case. It was an action by two workmen of an iron company against three members of a trade union, namely, Allen and two others, for maliciously, wrongfully, and with intent to injure the plaintiffs, procuring and inducing the iron company to discharge the plaintiffs.[605] The action was tried before Kennedy, J., who ruled that there was no evidence to go to the jury of conspiracy, intimidation, coercion, or breach of contract. The result of the trial was that the plaintiffs obtained a verdict and judgment against Allen alone. He appealed, and the only question which this House had to determine was whether what he had done entitled the plaintiffs to maintain their action against him. What the jury found that he had done was, that he had maliciously induced the employers of the plaintiffs to discharge them, whereby the plaintiffs suffered damage. Different views were taken by the noble Lords who heard the appeal as to Allen’s authority to call out the members of the union, and also as to the means used by Allen to induce the employers of the plaintiffs to discharge them; but, in the opinion of the noble Lords who formed the majority of Your Lordships’ House, all that Allen did was to inform the employers of the plaintiffs that most of their workmen would leave them if they did not discharge the plaintiffs.[606] There being no question of conspiracy, intimidation, coercion, or breach of contract, for consideration by the House, and the majority of their Lordships having come to the conclusion that Allen had done no more than I have stated, the majority of the noble Lords held that the action against Allen would not lie; that he had infringed no right of the plaintiffs; that he had done nothing which he had no legal right to do, and that the fact that he had acted maliciously and with intent to injure the plaintiffs did not, without more, entitle the plaintiffs to maintain the

## action.

My Lords, this decision, as I understand it, establishes two propositions: one a far-reaching and extremely important proposition of law, and the other a comparatively unimportant proposition of mixed law and fact, useful as a guide, but of a very different character from the first.

The first and important proposition is that an act otherwise lawful, although harmful, does not become actionable by being done maliciously in the sense of proceeding from a bad motive, and with intent to annoy or harm another. This is a legal doctrine not new or laid down for the first time in Allen _v._ Flood, [1898] A. C. 1; it had been gaining ground for some time, but it was never before so fully and authoritatively expounded as in that case. In applying this proposition care, however, must be taken to bear in mind, first, that in Allen _v._ Flood, [1898] A. C. 1, criminal responsibility had not to be considered. It would revolutionize criminal law to say that the criminal responsibility for conduct never depends on intention. Secondly, it must be borne in mind that even in considering a person’s liability to civil proceedings the proposition in question only applies to “acts otherwise lawful,” i. e., to acts involving no breach of duty, or, in other words, no wrong to any one. I shall refer to this matter later on.

The second proposition is that what Allen did infringed no right of the plaintiffs, even although he acted maliciously and with a view to injure them. I have already stated what he did, and all that he did, in the opinion of the majority of the noble Lords. If their view of the facts was correct, their conclusion that Allen infringed no right of the plaintiffs is perfectly intelligible, and indeed unavoidable. Truly, to inform a person that others will annoy or injure him unless he acts in a

## particular way cannot of itself be actionable, whatever the motive or

intention of the informant may have been.

My Lords, the questions whether Allen had more power over the men than some of their Lordships thought, and whether Allen did more than they thought, are mere questions of fact. Neither of these questions is a question of law, and no court or jury, is bound as a matter of law to draw from the facts before it inferences of fact similar to those drawn by noble Lords from the evidence relating to Allen in the case before them.

I will pass now to the facts of this case, and consider (1) what the plaintiff’s rights were; (2) what the defendants’ conduct was; (3), whether that conduct infringed the plaintiff’s rights. For the sake of clearness it will be convenient to consider these questions in the first place apart from the statute which legalizes strikes, and in the next place with reference to that statute.

1. As to the plaintiff’s rights. He had the ordinary rights of a British subject. He was at liberty to earn his own living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved liberty to deal with other persons who were willing to deal with him. This liberty is a right recognized by law; its correlative is the general duty of every one not to prevent the free exercise of this liberty, except so far as his own liberty of action may justify him in so doing. But a person’s liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffered from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact—in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified—the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done. Our law, as I understand it, is not so defective as to refuse him a remedy by an action under such circumstances. The cases collected in the old books on actions on the case, and the illustrations given by the late Bowen, L. J., in his admirable judgment in the Mogul Steamship Company’s Case, 23 Q. B. D. 613, 614, may be referred to in support of the foregoing conclusion, and I do not understand the decision in Allen _v._ Flood, [1898] A. C. 1, to be opposed to it.

If the above reasoning is correct, Lumley _v._ Gye, 2 E. & B. 216, was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, nor indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him. Temperton _v._ Russell, [1893] 1 Q. B. 715, ought to have been decided and may be upheld on this principle. That case was much criticised in Allen _v._ Flood, [1898] A. C. 1, and not without reason; for, according to the judgment of Lord Esher, the defendants’ liability depended on motive or intention alone, whether anything wrong was done or not. This went too far, as was pointed out in Allen _v._ Flood, [1898] A. C. 1. But in Temperton _v._ Russell, [1893] 1 Q. B. 715, there was a wrongful act, namely, conspiracy and unjustifiable interference with Brentano, who dealt with the plaintiff. This wrongful act warranted the decision, which I think was right.

2. I pass on to consider what the defendants did. The appellant and two of the other defendants were the officers of a trade union, and the jury have found that the defendants wrongfully and maliciously induced the customers of the plaintiff to refuse to deal with him, and maliciously conspired to induce them not to deal with him. There were similar findings as to inducing servants of the plaintiff to leave him. What the defendants did was to threaten to call out the union workmen of the plaintiff and of his customers if he would not discharge some non-union men in his employ. In other words, in order to compel the plaintiff to discharge some of his men, the defendants threatened to put the plaintiff and his customers, and persons lawfully working for them, to all the inconvenience they could without using violence. The defendants’ conduct was the more reprehensible because the plaintiff offered to pay the fees necessary to enable his non-union men to become members of the defendants’ union; but this would not satisfy the defendants. The facts of this case are entirely different from those which this House had to consider in Allen _v._ Flood, [1898] A. C. 1. In the present case there was no dispute between the plaintiff and his men. None of them wanted to leave his employ. Nor was there any dispute between the plaintiff’s customers and their own men, nor between the plaintiff and his customers, nor between the men they respectively employed. The defendants called no witnesses, and there was no evidence to justify or excuse the conduct of the defendants. That they acted as they did in furtherance of what they considered the interests of union men may probably be fairly assumed in their favor, although they did not come forward and say so themselves; but that is all that can be said for them. No one can, I think, say that the verdict was not amply warranted by the evidence. I have purposely said nothing about the black list, as the learned judge who tried the case considered that the evidence did not connect the appellant with that list. But the black list was, in my opinion, a very important feature in the case.

3. The remaining question is whether such conduct infringed the plaintiff’s rights so as to give him a cause of action. In my opinion, it plainly did. The defendants were doing a great deal more than exercising their own rights: they were dictating to the plaintiff and his customers and servants what they were to do. The defendants were violating their duty to the plaintiff and his customers and servants, which was to leave them in the undisturbed enjoyment of their liberty of

## action as already explained. What is the legal justification or excuse

for such conduct? None is alleged and none can be found. This violation of duty by the defendants resulted in damage to the plaintiff—not remote, but immediate and intended. The intention to injure the plaintiff negatives all excuses and disposes of any question of remoteness of damage. Your lordships have to deal with a case, not of _damnum absque injuria_, but of _damnum cum injuria_.

Every element necessary to give a cause of action on ordinary principles of law is present in this case. As regards authorities, they were all exhaustively examined in the Mogul Steamship Co. _v._ MacGregor, [1892] A. C. 25, and Allen _v._ Flood, [1898] A. C. 1, and it is unnecessary to dwell upon them again. I have examined all those which are important, and I venture to say that there is not a single decision anterior to Allen _v._ Flood, [1898] A. C. 1, in favor of the appellant. His sheet anchor is Allen _v._ Flood, [1898] A. C. 1, which is far from covering this case, and which can only be made to cover it by greatly extending its operation.

It was contended at the bar that if what was done in this case had been done by one person only, his conduct would not have been actionable, and that the fact that what was done was affected by many acting in concert makes no difference. My Lords, one man without others behind him who would obey his orders could not have done what these defendants did. One man exercising the same control over others as these defendants had could have acted as they did, and, if he had done so, I conceive that he would have committed a wrong towards the plaintiff for which the plaintiff could have maintained an action. I am aware that in Allen _v._ Flood, [1898] A. C. 1, Lord Herschell, [1898] A. C. at pp. 128, 138, expressed his opinion to be that it was immaterial whether Allen said he would call the men out or not. This may have been so in that particular case, as there was evidence that Allen had no power to call out the men, and the men had determined to strike before Allen had anything to do with the matter. But if Lord Herschell meant to say that as a matter of law there is no difference between giving information that men will strike, and making them strike, or threatening to make them strike, by calling them out when they do not want to strike, I am unable to concur with him. It is all very well to talk about peaceable persuasion. It may be that in Allen _v._ Flood, [1898] A. C. 1, there was nothing more; but here there was very much more. What may begin as peaceable persuasion may easily become, and in trades union disputes generally does become, peremptory ordering, with threats open or covert of very unpleasant consequences to those who are not persuaded. Calling workmen out involves very serious consequences to such of them as do not obey. Black lists are real instruments of coercion, as every man whose name is on one soon discovers to his cost. A combination not to work is one thing, and is lawful. A combination to prevent others from working by annoying them if they do is a very different thing, and is _prima facie_ unlawful. Again, not to work oneself is lawful so long as one keeps off the poor-rates, but to order men not to work when they are willing to work is another thing. A threat to call men out given by a trade union official to an employer of men belonging to the union and willing to work with him is a form of coercion, intimidation, molestation, or annoyance to them and to him very difficult to resist, and, to say the least, requiring justification. None was offered in this case.

My Lords, it is said that conduct which is not actionable on the part of one person cannot be actionable if it is that of several acting in concert. This may be so where many do no more than one is supposed to do. But numbers may annoy and coerce where one may not. Annoyance and coercion by many may be so intolerable as to become actionable, and produce a result which one alone could not produce. I am aware of the difficulties which surround the law of conspiracy both in its criminal and civil aspects; and older views have been greatly and, if I may say so, most beneficially modified by the discussions and decisions in America and this country. Amongst the American cases, I would refer especially to Vegelahn _v._ Guntner, 167 Mass. 92, where coercion by other means than violence, or threats of it, was held unlawful. In this country it is now settled by the decision of this House in the case of the Mogul Steamship Co., [1892] A. C. 25; 23 Q. B. D. 598, that no

## action for a conspiracy lies against persons who act in concert to

damage another and do damage him, but who at the same time merely exercise their own rights and who infringe no rights of other people. Allen _v._ Flood, [1898] A. C. 1, emphasizes the same doctrine. The principle was strikingly illustrated in the Scottish Coöperative Society _v._ Glasgow Fleshers’ Association, 35 Sc. L. R. 645, which was referred to in the course of the argument. In this case some butchers induced some salesmen not to sell meat to the plaintiffs. The means employed were to threaten the salesmen that if they continued to sell meat to the plaintiffs, they, the butchers, would not buy from the salesmen. There was nothing unlawful in this, and the learned judge held that the plaintiffs showed no cause of action, although the butchers’ object was to prevent the plaintiffs from buying for coöperative societies in competition with themselves, and the defendants were acting in concert.

The cardinal point of distinction between such cases and the present is that in them, although damage was intentionally inflicted on the plaintiffs, no one’s right was infringed—no wrongful act was committed; whilst in the present case the coercion of the plaintiff’s customers and servants, and of the plaintiff through them, was an infringement of their liberty as well as his, and was wrongful both to them and also to him, as I have already endeavored to show.

Intentional damage which arises from the mere exercise of the rights of many is not, I apprehend, actionable by our law as now settled. To hold the contrary would be unduly to restrict the liberty of one set of persons in order to uphold the liberty of another set. According to our law, competition, with all its drawbacks, not only between individuals, but between associations, and between them and individuals, is permissible, provided nobody’s rights are infringed. The law is the same for all persons, whatever their callings: it applies to masters as well as to men; the proviso, however, is all-important, and it also applies to both, and limits the rights of those who combine to lock-out as well as the rights of those who strike. But coercion by threats, open or disguised, not only of bodily harm but of serious annoyance and damage, is _prima facie_, at all events, a wrong inflicted on the persons coerced; and in considering whether coercion has been applied or not, numbers cannot be disregarded.

* * * * *

I conclude this part of the case by saying that, in my opinion, the direction given to the jury by the learned judge who tried the case was correct, so far as the liability of the defendants turns on principles of common law, and that the objection taken to it by the counsel for the appellant is untenable. I mean the objection that the learned judge did not distinguish between coercion to break contracts of service, and coercion to break contracts of other kinds, and coercion not to enter into contracts.

I pass now to consider the effect of the statute 38 & 39 Vict. c. 86.

[The opinion on this point is omitted.]

My Lords, I will detain your Lordships no longer. Allen _v._ Flood, [1898] A. C. 1, is in many respects a very valuable decision, but it may be easily misunderstood and carried too far.

Your Lordships are asked to extend it and to destroy that individual liberty which our laws so anxiously guard. The appellant seeks by means of Allen _v._ Flood, [1898] A. C. 1, and by logical reasoning based upon some passages in the judgments given by the noble Lords who decided it, to drive your Lordships to hold that boycotting by trades unions in one of its most objectionable forms is lawful, and gives no cause of action to its victims although they may be pecuniarily ruined thereby.

My Lords, so to hold would, in my opinion, be contrary to well-settled principles of English law, and would be to do what is not yet authorized by any statute or legal decision.

In my opinion this appeal ought to be dismissed with costs.

_Order appealed from affirmed, and appeal dismissed with costs._[607]

VEGELAHN _v._ GUNTNER SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 26, 1896. _Reported in 167 Massachusetts Reports, 92._

Bill in equity against fourteen individual defendants and two trades unions.[608]

* * * * *

The following decree was entered at a preliminary hearing upon the bill: “This cause came on to be heard upon the plaintiff’s motion for a temporary injunction; and after due hearing, at which the several defendants, were represented by counsel, it is ordered, adjudged, and decreed that an injunction issue _pendente lite_, to remain in force until the further order of this court, or of some justice thereof, restraining the respondents and each and every of them, their agents and servants, from interfering with the plaintiff’s business by patrolling the sidewalk or street in front or in the vicinity of the premises occupied by him, for the purpose of preventing any person or persons who now are or may hereafter be in his employment, or desirous of entering the same, from entering it, or continuing in it; or by obstructing or interfering with such persons, or any others, in entering or leaving the plaintiff’s said premises; or by intimidating, by threats or otherwise, any person or persons who now are or may hereafter be in the employment of the plaintiff, or desirous of entering the same, from entering it, or continuing in it; or by any scheme or conspiracy among themselves or with others, organized for the purpose of annoying, hindering, interfering with, or preventing any person or persons who now are or may hereafter be in the employment of the plaintiff, or desirous of entering the same, from entering it, or from continuing therein.”

Hearing upon the bill and answers before Holmes, J., who reported the case for the consideration of the full court, as follows:—

“The facts admitted or proved are that, following upon a strike of the plaintiff’s workmen, the defendants have conspired to prevent the plaintiff from getting workmen, and thereby to prevent him from carrying on his business unless and until he will adopt a schedule of prices which has been exhibited to him, and for the purpose of compelling him to accede to that schedule, but for no other purpose. If he adopts that schedule he will not be interfered with further. The means adopted for preventing the plaintiff from getting workmen are, (1) in the first place, persuasion and social pressure. And these means are sufficient to affect the plaintiff disadvantageously, although it does not appear, if that be material, that they are sufficient to crush him. I ruled that the employment of these means for the said purpose was lawful, and for that reason refused an injunction against the employment of them. If the ruling was wrong, I find that an injunction ought to be granted.

“(2) I find also, that, as a further means for accomplishing the desired end, threats of personal injury or unlawful harm were conveyed to persons seeking employment or employed, although no actual violence was used beyond a technical battery, and although the threats were a good deal disguised, and express words were avoided. It appeared to me that there was danger of similar acts in the future. I ruled that conduct of this kind should be enjoined.

“The defendants established a patrol of two men in front of the plaintiff’s factory, as one of the instrumentalities of their plan. The patrol was changed every hour, and continued from half-past six in the morning until half-past five in the afternoon, on one of the busy streets of Boston. The number of men was greater at times, and at times showed some little inclination to stop the plaintiff’s door, which was not serious, but seemed to me proper to be enjoined. The patrol proper at times went further than simple advice, not obtruded beyond the point where the other person was willing to listen, and conduct of that sort is covered by (2) above, but its main purpose was in aid of the plan held lawful in (1) above. I was satisfied that there was probability of the patrol being continued if not enjoined. I ruled that the patrol, so far as it confined itself to persuasion and giving notice of the strike, was not unlawful, and limited the injunction accordingly.

“There was some evidence of persuasion to break existing contracts. I ruled that this was unlawful, and should be enjoined.

“I made the final decree appended hereto. If, on the foregoing facts, it ought to be reversed or modified, such decree is to be entered as the full court may think proper; otherwise, the decree is to stand.”

The final decree was as follows: “This cause came on to be heard, and was argued by counsel; and thereupon, on consideration thereof, it is ordered, adjudged, and decreed that the defendants, and each and every of them, their agents and servants, be restrained and enjoined from interfering with the plaintiff’s business by obstructing or physically interfering with any persons in entering or leaving the plaintiff’s premises numbered 141, 143, 145, 147 North Street in said Boston, or by intimidating, by threats, express or implied, of violence or physical harm to body or property, any person or persons who now are or hereafter may be in the employment of the plaintiff, or desirous of entering the same, from entering or continuing in it, or by in any way hindering, interfering with, or preventing any person or persons who now are in the employment of the plaintiff from continuing therein, so long as they may be bound so to do by lawful contract.”

ALLEN, J. The principal question in this case is whether the defendants should be enjoined against maintaining the patrol. The report shows that, following upon a strike of the plaintiff’s workmen, the defendants conspired to prevent him from getting workmen, and thereby to prevent him from carrying on his business, unless and until he should adopt a certain schedule of prices. The means adopted were persuasion and social pressure, threats of personal injury or unlawful harm conveyed to persons employed or seeking employment, and a patrol of two men in front of the plaintiff’s factory, maintained from half-past six in the morning till half-past five in the afternoon, on one of the busiest streets of Boston. The number of men was greater at times, and at times showed some little disposition to stop the plaintiff’s door. The patrol proper at times went further than simple advice, not obtruded beyond the point where the other person was willing to listen; and it was found that the patrol would probably be continued, if not enjoined. There was also some evidence of persuasion to break existing contracts.

The patrol was maintained as one of the means of carrying out the defendants’ plan, and it was used in combination with social pressure, threats of personal injury or unlawful harm, and persuasion to break existing contracts. It was thus one means of intimidation indirectly to the plaintiff, and directly to persons actually employed, or seeking to be employed, by the plaintiff, and of rendering such employment unpleasant or intolerable to such persons. Such an act is an unlawful interference with the rights both of employer and of employed. An employer has a right to engage all persons who are willing to work for him, at such prices as may be mutually agreed upon; and persons employed or seeking employment have a corresponding right to enter into or remain in the employment of any person or corporation willing to employ them. These rights are secured by the Constitution itself. Commonwealth _v._ Perry, 155 Mass. 117; People _v._ Gillson, 109 N. Y. 389; Braceville Coal Co. _v._ People, 147 Ill. 66, 71; Ritchie _v._ People, 155 Ill. 98; Low _v._ Rees Printing Co., 41 Neb. 127. No one can lawfully interfere by force or intimidation to prevent employers or persons employed or wishing to be employed from the exercise of these rights. In Massachusetts, as in some other States, it is even made a criminal offence for one by intimidation or force to prevent or seek to prevent a person from entering into or continuing in the employment of a person or corporation. Pub. Sts. c. 74, § 2. Intimidation is not limited to threats of violence or of physical injury to person or property. It has a broader signification, and there also may be a moral intimidation which is illegal. Patrolling or picketing, under the circumstances stated in the report, has elements of intimidation like those which were found to exist in Sherry _v._ Perkins, 147 Mass. 212. It was declared to be unlawful in Regina _v._ Druitt, 10 Cox C. C. 592; Regina _v._ Hibbert, 13 Cox C. C. 82; and Regina _v._ Bauld, 13 Cox C. C. 282. It was assumed to be unlawful in Trollope _v._ London Building Trades Federation, 11 T. L. R. 228, though in that case the pickets were withdrawn before the bringing of the bill. The patrol was an unlawful interference both with the plaintiff and with the workmen, within the principle of many cases, and, when instituted for the purpose of interfering with his business, it became a private nuisance. See Carew _v._ Rutherford, 106 Mass. 1; Walker _v._ Cronin, 107 Mass. 555; Barr _v._ Essex Trades Council, 8 Dick. 101; Murdock _v._ Walker, 152 Penn. St. 595; Wick China Co. _v._ Brown, 164 Penn. St. 449; Cœur d’Alene Consolidated & Mining Co. _v._ Miners’ Union, 51 Fed. Rep. 260; Temperton _v._ Russell, [1893] 1 Q. B. 715; Flood _v._ Jackson, 11 T. L. R. 276; Wright _v._ Hennessey, a case before Baron Pollock, 52 Alb. L. J. 104; Judge _v._ Bennett, 36 W. R. 103; Lyons _v._ Wilkins, [1896] 1 Ch. 811.

The defendants contend that these acts were justifiable, because they were only seeking to secure better wages for themselves by compelling the plaintiff to accept their schedule of wages. This motive or purpose does not justify maintaining a patrol in front of the plaintiff’s premises, as a means of carrying out their conspiracy. A combination among persons merely to regulate their own conduct is within allowable competition, and is lawful, although others may be indirectly affected thereby. But a combination to do injurious acts expressly directed to another, by way of intimidation or constraint either of himself or of persons employed or seeking to be employed by him, is outside of allowable competition, and is unlawful. Various decided cases fall within the former class, for example: Worthington _v._ Waring, 157 Mass. 421; Snow _v._ Wheeler, 113 Mass. 179; Bowen _v._ Matheson, 14 Allen, 499; Commonwealth _v._ Hunt, 4 Met. 111; Heywood _v._ Tillson, 75 Maine, 225; Cote _v._ Murphy, 159 Penn. St. 420; Bohn Manuf. Co. _v._ Hollis, 54 Minn. 223; Mogul Steamship Co. _v._ McGregor, [1892] A. C. 25; Curran _v._ Treleaven, [1891] 2 Q. B. 545, 561. The present case falls within the latter class.

Nor does the fact that the defendants’ acts might subject them to an indictment prevent a court of equity from issuing an injunction. It is true that ordinarily a court of equity will decline to issue an injunction to restrain the commission of a crime; but a continuing injury to property or business may be enjoined, although it may also be punishable as a nuisance or other crime. Sherry _v._ Perkins, 147 Mass. 212; _In re_ Debs, 158 U. S. 564, 593, 599; Baltimore & Potomac Railroad _v._ Fifth Baptist Church, 108 U. S. 317, 329; Cranford _v._ Tyrell, 128 N. Y. 341, 344; Gilbert _v._ Mickle, 4 Sandf. Ch. 357; Mobile _v._ Louisville & Nashville Railroad, 84 Ala. 115, 126; Arthur _v._ Oakes, 63 Fed. Rep. 310; Toledo, Ann Arbor, & North Michigan Railway _v._ Pennsylvania Co., 54 Fed. Rep. 730, 744; Emperor of Austria _v._ Day, 3 DeG., F. & J. 217, 239, 240, 253; Hermann Loog _v._ Bean, 26 Ch. D. 306, 314, 316, 317; Monson _v._ Tussaud, [1894] 1 Q. B. 671, 689, 690, 698.

A question is also presented whether the court should enjoin such interference with persons in the employment of the plaintiff who are not bound by contract to remain with him, or with persons who are not under any existing contract, but who are seeking or intending to enter into his employment. A conspiracy to interfere with the plaintiff’s business by means of threats and intimidation, and by maintaining a patrol in front of his premises in order to prevent persons from entering his employment, or in order to prevent persons who are in his employment from continuing therein, is unlawful, even though such persons are not bound by contract to enter into or to continue in his employment; and the injunction should not be so limited as to relate only to persons who are bound by existing contracts. Walker _v._ Cronin, 107 Mass. 555, 565; Carew _v._ Rutherford, 106 Mass. 1; Sherry _v._ Perkins, 147 Mass. 212; Temperton _v._ Russell, [1893] 1 Q. B. 715, 728, 731; Flood _v._ Jackson, 11 L. T. R. 276.

In the opinion of a majority of the court the injunction should be in the form originally issued.

_So ordered._

[The opinion of FIELD, C. J., is omitted. His conclusion was, “that the decree entered by Mr. Justice Holmes should be affirmed without modification.”]

HOLMES, J. In a case like the present, it seems to me that, whatever the true result may be, it will be of advantage to sound thinking to have the less popular view of the law stated, and therefore, although when I have been unable to bring my brethren to share my convictions my almost invariable practice is to defer to them in silence, I depart from that practice in this case, notwithstanding my unwillingness to do so in support of an already rendered judgment of my own.

In the first place, a word or two should be said as to the meaning of the report. I assume that my brethren construe it as I meant it to be construed, and that, if they were not prepared to do so, they would give an opportunity to the defendants to have it amended in accordance with what I state my meaning to be. There was no proof of any threat or danger of a patrol exceeding two men, and as of course an injunction is not granted except with reference to what there is reason to expect in its absence, the question on that point is whether a patrol of two men should be enjoined. Again, the defendants are enjoined by the final decree from intimidating by threats, express or implied, of physical harm to body or property, any person who may be desirous of entering into the employment of the plaintiff so far as to prevent him from entering the same. In order to test the correctness of the refusal to go further, it must be assumed that the defendants obey the express prohibition of the decree. If they do not, they fall within the injunction as it now stands, and are liable to summary punishment. The important difference between the preliminary and the final injunction is that the former goes further, and forbids the defendants to interfere with the plaintiff’s business “by any scheme ... organized for the purpose of ... preventing any person or persons who now are or may hereafter be ... desirous of entering the [plaintiff’s employment] from entering it.” I quote only a part, and the part which seems to me most objectionable. This includes refusal of social intercourse, and even organized persuasion or argument, although free from any threat of violence, either express or implied. And this is with reference to persons who have a legal right to contract or not to contract with the plaintiff, as they may see fit. Interference with existing contracts is forbidden by the final decree. I wish to insist a little that the only point of difference which involves a difference of principle between the final decree and the preliminary injunction which it is proposed to restore, is what I have mentioned, in order that it may be seen exactly what we are to discuss. It appears to me that the judgment of the majority turns in part on the assumption that the patrol necessarily carries with it a threat of bodily harm. That assumption I think unwarranted, for the reasons which I have given. Furthermore, it cannot be said, I think, that two men walking together up and down a sidewalk and speaking to those who enter a certain shop do necessarily and always thereby convey a threat of force. I do not think it possible to discriminate and to say that two workmen, or even two representatives of an organization of workmen, do,—especially when they are, and are known to be, under the injunction of this court not to do so. See Stimson, Handbook to Labor Law, § 60, esp. pp. 290, 298, 299, 300; Regina _v._ Shepherd, 11 Cox C. C. 325. I may add, that I think the more intelligent workingmen believe as fully as I do that they no more can be permitted to usurp the State’s prerogative of force than can their opponents in their controversies. But if I am wrong, then the decree as it stands reaches the patrol, since it applies to all threats of force. With this I pass to the real difference between the interlocutory and the final decree.

I agree, whatever may be the law in the case of a single defendant, Rice _v._ Albee, 164 Mass. 88, that when a plaintiff proves that several persons have combined and conspired to injure his business, and have done acts producing that effect, he shows temporal damage and a cause of

## action, unless the facts disclose, or the defendants prove, some ground

of excuse or justification. And I take it to be settled, and rightly settled, that doing that damage by combined persuasion is actionable, as well as doing it by falsehood or by force. Walker _v._ Cronin, 107 Mass. 555; Morasse _v._ Brochu, 151 Mass. 567; Tasker _v._ Stanley, 153 Mass. 148.

Nevertheless, in numberless instances the law warrants the intentional infliction of temporal damage because it regards it as justified. It is on the question of what shall amount to a justification, and more especially on the nature of the considerations which really determine or ought to determine the answer to that question, that judicial reasoning seems to me often to be inadequate. The true grounds of decision are considerations of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and the general propositions of law which nobody disputes. Propositions as to public policy rarely are unanimously accepted, and still more rarely, if ever, are capable of unanswerable proof. They require a special training to enable any one even to form an intelligent opinion about them. In the early stages of law, at least, they generally are acted on rather as inarticulate instincts than as definite ideas for which a rational defence is ready.

To illustrate what I have said in the last paragraph, it has been the law for centuries that a man may set up a business in a country town too small to support more than one, although he expects and intends thereby to ruin some one already there, and succeeds in his intent. In such a case he is not held to act “unlawfully and without justifiable cause,” as was alleged in Walker _v._ Cronin and Rice _v._ Albee. The reason, of course, is that the doctrine generally has been accepted that free competition is worth more to society than it costs, and that on this ground the infliction of the damage is privileged. Commonwealth _v._ Hunt, 4 Met. 111, 134. Yet even this proposition nowadays is disputed by a considerable body of persons, including many whose intelligence is not to be denied, little as we may agree with them.

I have chosen this illustration partly with reference to what I have to say next. It shows without the need of further authority that the policy of allowing free competition justifies the intentional inflicting of temporal damage, including the damage of interference with a man’s business, by some means, when the damage is done not for its own sake, but as an instrumentality in reaching the end of victory in the battle of trade. In such a case it cannot matter whether the plaintiff is the only rival of the defendant, and so is aimed at specifically, or is one of a class all of whom are hit. The only debatable ground is the nature of the means by which such damage may be inflicted. We all agree that it cannot be done by force or threats of force. We all agree, I presume, that it may be done by persuasion to leave a rival’s shop and come to the defendant’s. It may be done by the refusal or withdrawal of various pecuniary advantages which, apart from this consequence, are within the defendant’s lawful control. It may be done by the withdrawal, or threat to withdraw, such advantages from third persons who have a right to deal or not to deal with the plaintiff, as a means of inducing them not to deal with him either as customers or servants. Commonwealth _v._ Hunt, 4 Met. 111, 132, 133; Bowen _v._ Matheson, 14 Allen, 499; Heywood _v._ Tillson, 75 Maine, 225; Mogul Steamship Co. _v._ McGregor, [1892] A. C. 25.

I pause here to remark that the word “threats” often is used as if when it appeared that threats had been made, it appeared that unlawful conduct had begun. But it depends on what you threaten. As a general rule, even if subject to some exceptions, what you may do in a certain event you may threaten to do,[609] that is, give warning of your intention to do in that event, and thus allow the other person the chance of avoiding the consequences. So as to “compulsion,” it depends on how you “compel.” Commonwealth _v._ Hunt, 4 Met. 111, 133. So as to “annoyance” or “intimidation.” Connor _v._ Kent, Curran _v._ Treleaven, 17 Cox C. C. 354, 367, 368, 370. In Sherry _v._ Perkins, 147 Mass. 212, it was found as a fact that the display of banners which was enjoined was part of a scheme to prevent workmen from entering or remaining in the plaintiff’s employment, “by threats and intimidation.” The context showed that the words as there used meant threats of personal violence, and intimidation by causing fear of it.

I have seen the suggestion made that the conflict between employers and employed is not competition. But I venture to assume that none of my brethren would rely on that suggestion. If the policy on which our law is founded is too narrowly expressed in the term free competition, we may substitute free struggle for life. Certainly the policy is not limited to struggles between persons of the same class competing for the same end. It applies to all conflicts of temporal interests.

So far, I suppose, we are agreed. But there is a notion which latterly has been insisted on a good deal, that a combination of persons to do what any one of them lawfully might do by himself will make the otherwise lawful conduct unlawful. It would be rash to say that some as yet unformulated truth may not be hidden under this proposition. But in the general form in which it has been presented and accepted by many courts, I think it plainly untrue, both on authority and on principle.[610] Commonwealth _v._ Hunt, 4 Met. 111; Randall _v._ Hazelton, 12 Allen, 412, 414. There was combination of the most flagrant and dominant kind in Bowen _v._ Matheson and in the Mogul Steamship Company’s case, and combination was essential to the success achieved. But it is not necessary to cite cases; it is plain from the slightest consideration of practical affairs, or the most superficial reading of industrial history, that free competition means combination, and that the organization of the world, now going on so fast, means an ever increasing might and scope of combination. It seems to me futile to set our faces against this tendency. Whether beneficial on the whole, as I think it, or detrimental, it is inevitable, unless the fundamental axioms of society, and even the fundamental conditions of life, are to be changed.

One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way. I am unable to reconcile Temperton _v._ Russell, [1893] 1 Q. B. 715, and the cases which follow it, with the Mogul Steamship Company case. But Temperton _v._ Russell is not a binding authority here, and therefore I do not think it necessary to discuss it.

If it be true that workingmen may combine with a view, among other things, to getting as much as they can for their labor, just as capital may combine with a view to getting the greatest possible return, it must be true that when combined they have the same liberty that combined capital has to support their interests by argument, persuasion, and the bestowal or refusal of those advantages which they otherwise lawfully control. I can remember when many people thought that, apart from violence or breach of contract, strikes were wicked, as organized refusals to work. I suppose that intelligent economists and legislators have given up that notion to-day. I feel pretty confident that they equally will abandon the idea that an organized refusal by workmen of social intercourse with a man who shall enter their antagonist’s employ is wrong, if it is dissociated from any threat of violence, and is made for the sole object of prevailing if possible in a contest with their employer about the rate of wages. The fact, that the immediate object of the act by which the benefit to themselves is to be gained is to injure their antagonist, does not necessarily make it unlawful, any more than when a great house lowers the price of certain goods for the purpose, and with the effect, of driving a smaller antagonist from the business. Indeed, the question seems to me to have been decided as long ago as 1842 by the good sense of Chief Justice Shaw, in Commonwealth _v._ Hunt, 4 Met. 111. I repeat at the end, as I said at the beginning, that this is the point of difference in principle, and the only one, between the interlocutory and the final decree. See Regina _v._ Shepherd, 11 Cox C. C. 325; Connor _v._ Kent, Gibson _v._ Lawson, Curran _v._ Treleaven, 17 Cox C. C. 354.

The general question of the propriety of dealing with this kind of case by injunction I say nothing about, because I understand that the defendants have no objection to the final decree if it goes no further, and that both parties wish a decision upon the matters which I have discussed.[611]

PLANT _v._ WOODS SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER 5, 1900. _Reported in 176 Massachusetts Reports, 492._

Bill in equity filed in the Superior Court, by the officers and members “of the voluntary association known as Union 257, Painters and Decorators of America of Springfield, Massachusetts, which Union is affiliated with a national organization of the same name, with headquarters at Lafayette in the State of Indiana,” against the officers and members “of the voluntary association known as Union 257, Painters and Decorators of America, which Union is affiliated with a national organization of the same name, with headquarters at Baltimore in the State of Maryland,” to restrain the defendants from any acts or the use of any methods tending to prevent the members of the plaintiff association from securing employment or continuing in their employment. Hearing before Dewey, J., who entered the following decree:

“The cause came on to be heard, and was argued by counsel; and thereupon, on consideration thereof, it is ordered adjudged and decreed that the defendant association, the defendants, and each and every of them, their committees, agents, and servants, be restrained and strictly enjoined from interfering and from combining, conspiring, or attempting to interfere, with the employment of members of the plaintiffs’ said association, by representing or causing to be represented in express or implied terms to any employer of said members of plaintiffs’ association, or to any person or persons or corporation who might become employers of any of the plaintiffs, that such employers will suffer or are likely to suffer some loss or trouble in their business for employing or continuing to employ said members of plaintiffs’ said association; or by representing, directly or indirectly, for the purpose of interfering with the employment of members of the plaintiffs’ said association, to any who have contracts or may have contracts for services to be performed by employers of members of plaintiffs’ said association that such persons will or are likely to suffer some loss or trouble in their business for allowing such employers of members of plaintiffs’ said association (and because they are such employers) to obtain or perform such contracts; or by intimidating or attempting to intimidate, by threats, direct or indirect, express or implied, of loss or trouble in business, or otherwise, any person or persons or corporation who now are employing or may hereafter employ or desire to employ any of the members of the plaintiffs’ said association; or by attempting by any scheme or conspiracy, among themselves or with others, to annoy, hinder, or interfere with, or prevent any person or persons or corporation from employing or continuing to employ a member or members of plaintiffs’ said association; or by causing, or attempting to cause, any person to discriminate against any employer of members of plaintiffs’ said association (because he is such employer) in giving or allowing the performance of contracts to or by such employer; and from any and all acts, or the use of any methods, which by putting or attempting to put any person or persons or corporation in fear of loss or trouble, will tend to hinder, impede, or obstruct members, or any member, of the plaintiffs’ said association from securing employment or continuing in employment. And that the plaintiffs recover their costs, taxed as in an action of law.”

The case was reported, at the request of both parties, for the determination of this court. The facts appear in the opinion.

HAMMOND, J. This case arises out of a contest for supremacy between two labor unions of the same craft, having substantially the same constitution and by-laws. The chief difference between them is that the plaintiff union is affiliated with a national organization having its headquarters in Lafayette in the State of Indiana, while the defendant union is affiliated with a similar organization having its headquarters in Baltimore in the State of Maryland. The plaintiff union was composed of workmen who in 1897 withdrew from the defendant union.

There does not appear to be anything illegal in the object of either union as expressed in its constitution and by-laws. The defendant union is also represented by delegates in the Central Labor Union, which is an organization composed of five delegates from each trade union in the city of Springfield, and had in its constitution a provision for levying a boycott upon a complaint made by any union.

The case is before us upon a report after a final decree in favor of the plaintiffs, based upon the findings stated in the report of the master.

The contest became active early in the fall of 1898. In September of that year, the members of the defendant union declared “all painters not affiliated with the Baltimore headquarters to be non-union men,” and voted to “notify the bosses” of that declaration. The manifest object of the defendants was to have all the members of the craft subjected to the rules and discipline of their particular union, in order that they might have better control over the whole business, and to that end they combined and conspired to get the plaintiffs and each of them to join the defendant association, peaceably if possible but by threat and intimidation if necessary. Accordingly, on October 7, they voted that “if our demands are not complied with, all men working in shops where Lafayette people are employed refuse to go to work.” The plaintiffs resisting whatever persuasive measures, if any, were used by the defendants, the latter proceeded to carry out their plan in the manner fully set forth in the master’s report. Without rehearsing the circumstances in detail it is sufficient to say here that the general method of operations was substantially as follows:—

A duly authorized agent of the defendants would visit a shop where one or more of the plaintiffs were at work and inform the employer of the

## action of the defendant union with reference to the plaintiffs, and ask

him to induce such of the plaintiffs as were in his employ to sign application for reinstatement in the defendant union. As to the general nature of these interviews the master finds that the defendants have been courteous in manner, have made no threats of personal violence, have referred to the plaintiffs as non-union men, but have not otherwise represented them as men lacking good standing in their craft; that they have not asked that the Lafayette men be discharged, and in some cases have expressly stated that they did not wish to have them discharged, but only that they sign the blanks for reinstatement in the defendant union. The master, however, further finds, from all the circumstances under which those requests were made, that the defendants intended that employers of Lafayette men should fear trouble in their business if they continued to employ such men, and that employers to whom these requests were made were justified in believing that a failure on the part of their employees who were Lafayette men to sign such reinstatement blanks, and a failure on the part of the employers to discharge them for not doing so, would lead to trouble in the business of the employers in the nature of strikes or a boycott, and the employers to whom these requests were made did believe that such results would follow, and did suggest their belief to the defendants, and the defendants did not deny that such results might occur; that the strikes which did occur appear to have been steps taken by the defendants to obtain the discharge of such employees as were Lafayette men who declined to sign application blanks for reinstatement; that these defendants did not in all cases threaten a boycott of the employers’ business, but did threaten that the place of business of at least one such employer would be left off from a so-called “fair list” to be published by the Baltimore Union. The master also found that, from all the evidence presented, the object which the Baltimore men and the defendant association sought to accomplish in all the acts which were testified to was to compel the members of the Lafayette Union to join the Baltimore Union, and as a means to this end they caused strikes to be instituted in the shops where strikes would seriously interfere with the business of the shops, and in all other shops they made such representations as would lead the proprietors thereof to expect trouble in their business.

We have, therefore, a case where the defendants have conspired to compel the members of the plaintiff union to join the defendant union, and to carry out their purpose have resolved upon such coercion and intimidation as naturally may be caused by threats of loss of property by strikes and boycotts, to induce the employers either to get the plaintiffs to ask for reinstatement in the defendant union, or, that failing, then to discharge them. It matters not that this request to discharge has not been expressly made. There can be no doubt, upon the findings of the master and the facts stated in his report, that the compulsory discharge of the plaintiffs in case of non-compliance with the demands of the defendant union is one of the prominent features of the plan agreed upon.

It is well to see what is the meaning of this threat to strike, when taken in connection with the intimation that the employer may “expect trouble in his business.” It means more than that the strikers will cease to work. That is only the preliminary skirmish. It means that those who have ceased to work will, by strong, persistent, and organized persuasion and social pressure of every description, do all they can to prevent the employer from procuring workmen to take their places. It means much more. It means that, if these peaceful measures fail, the employer may reasonably expect that unlawful physical injury may be done to his property; that attempts in all the ways practised by organized labor will be made to injure him in his business, even to his ruin, if possible; and that, by the use of vile and opprobrious epithets and other annoying conduct, and actual and threatened personal violence, attempts will be made to intimidate those who enter or desire to enter his employ; and that whether or not all this be done by the strikers or only by their sympathizers, or with the open sanction and approval of the former, he will have no help from them in his efforts to protect himself.

However mild the language or suave the manner in which the threat to strike is made under such circumstances as are disclosed in this case, the employer knows that he is in danger of passing through such an ordeal as that above described, and those who make the threat know that as well as he does. Even if the intent of the strikers, so far as respects their own conduct and influence, be to discountenance all actual or threatened injury to person or property or business, except that which is the direct necessary result of the interruption of the work, and even if their connection with the injurious and violent conduct of the turbulent among them or of their sympathizers be not such as to make them liable criminally or even answerable civilly in damages to those who suffer, still with full knowledge of what is to be expected they give the signal, and in so doing must be held to avail themselves of the degree of fear and dread which the knowledge of such consequences will cause in the mind of those—whether their employer or fellow workmen—against whom the strike is directed; and the measure of coercion and intimidation imposed upon those against whom the strike is threatened or directed is not fully realized until all those probable consequences are considered.

Such is the nature of the threat, and such the degree of coercion and intimidation involved in it.

If the defendants can lawfully perform the acts complained of in the city of Springfield, they can pursue the plaintiffs all over the State in the same manner, and compel them to abandon their trade or bow to the behests of their pursuers.

It is to be observed that this is not a case between the employer and employed, or, to use a hackneyed expression, between capital and labor, but between laborers all of the same craft, and each having the same right as any one of the others to pursue his calling. In this, as in every other case of equal rights, the right of each individual is to be exercised with due regard to the similar right of all others, and the right of one be said to end where that of another begins.

The right involved is the right to dispose of one’s labor with full freedom. This is a legal right, and it is entitled to legal protection. Sir William Erle in his book on Trade Unions, page 12, has stated this in the following language, which has been several times quoted with approval by judges in England: “Every person has a right under the law, as between him and his fellow subjects, to full freedom in disposing of his own labor or his own capital according to his own will. It follows that every other person is subject to the correlative duty arising therefrom, and is prohibited from any obstruction to the fullest exercise of this right which can be made compatible with the exercise of similar rights by others. Every act causing an obstruction to another in the exercise of the right comprised within this description—done, not in the exercise of the actor’s own right, but for the purpose of obstruction—would if damage should be caused thereby to the party obstructed, be a violation of this prohibition.”

The same rule is stated with care and discrimination by Wells, J., in Walker _v._ Cronin, 107 Mass. 555, 564: “Every one has a right to enjoy the fruits and advantages of his own enterprise, industry, skill, and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance, or annoyance. If disturbance or loss come as a result of competition, or the exercise of like rights by others, it is _damnum absque injuria_, unless some superior right by contract or otherwise is interfered with. But if it come from the merely wanton or malicious acts of others, without the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing.”

In this case the acts complained of were calculated to cause damage to the plaintiffs, and did actually cause such damage; and they were intentionally done for that purpose. Unless, therefore, there was justifiable cause, the acts were malicious and unlawful. Walker _v._ Cronin, _ubi supra_, Carew _v._ Rutherford, 106 Mass. 1, and cases cited therein.

The defendants contend that they have done nothing unlawful, and, in support of that contention, they say that a person may work for whom he pleases; and, in the absence of any contract to the contrary, may cease to work when he pleases, and for any reason whatever, whether the same be good or bad; that he may give notice of his intention in advance, with or without stating the reason; that what one man may do several men

## acting in concert may do, and may agree beforehand that they will do,

and may give notice of the agreement; and that all this may be lawfully done notwithstanding such concerted action may, by reason of the consequent interruption of the work, result in great loss to the employer and his other employees, and that such a result was intended. In a general sense, and without reference to exceptions arising out of conflicting public and private interests, all this may be true.

It is said also that, where one has the lawful right to do a thing, the motive by which he is actuated is immaterial. One form of this statement appears in the first head-note in Allen _v._ Flood, as reported in [1898] A. C. 1, as follows: “An act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer of the act liable to a civil action.” If the meaning of this and similar expressions is that where a person has the lawful right to do a thing irrespective of his motive, his motive is immaterial the proposition is a mere truism. If, however, the meaning is that where a person, if actuated by one kind of a motive, has a lawful right to do a thing, the

## act is lawful when done under any conceivable motive; or that an act

lawful under one set of circumstances is therefore lawful under every conceivable set of circumstances, the proposition does not commend itself to us as either logically or legally accurate.

In so far as a right is lawful, it is lawful, and in many cases the right is so far absolute as to be lawful whatever may be the motive of the actor, as where one digs upon his own land for water (Greenleaf _v._ Francis, 18 Pick. 117), or makes a written lease of his land for the purpose of terminating a tenancy at will (Groustra _v._ Bourges, 141 Mass. 7), but in many cases the lawfulness of an act which causes damage to another may depend upon whether the act is for justifiable cause; and this justification may be found sometimes in the circumstances under which it is done irrespective of motive, sometimes in the motive alone, and sometimes in the circumstances and motive combined.

This principle is of very general application in criminal law, and also is illustrated in many branches of the civil law, as in cases of libel and of procuring a wife to leave her husband. Tasker _v._ Stanley, 153 Mass. 148, and cases therein cited. Indeed the principle is a prominent feature underlying the whole doctrine of privilege, malice, and intent. See on this an instructive article in 8 Harvard Law Review, 1, where the subject is considered at some length.

It is manifest that not much progress is made by such general statements as those quoted above from Allen _v._ Flood, whatever may be their meaning.

Still standing for solution is the question, Under what circumstances, including the motive of the actor, is the act complained of lawful, and to what extent?

In cases somewhat akin to the one at bar this court has had occasion to consider the question how far acts, manifestly coercive and intimidating in their nature, which cause damage and injury to the business or property of another, and are done with intent to cause such injury and

## partly in reliance upon such coercion, are justifiable.

In Bowen _v._ Matheson, 14 Allen, 499, it was held to be lawful for persons engaged in the business of shipping seamen to combine together into a society for the purpose of competing with other persons engaged in the same business, and it was held lawful for them, in pursuance of that purpose, to take men out of a ship, if men shipped by a non-member were in that ship; to refuse to furnish seamen through a non-member; to notify the public that they had combined against non-members, and had “laid the plaintiff on the shelf”; to notify the plaintiff’s customers and friends that the plaintiff could not ship seamen for them; and to interfere in all these ways with the business of the plaintiff as a shipping agent, and compel him to abandon the same. The justification for these acts, so injurious to the business of the plaintiff and so intimidating in their nature, is to be found in the law of competition. No legal right of the plaintiff was infringed upon, and, as stated by Chapman, J., in giving the opinion of the court (p. 503), “if their effect is to destroy the business of shipping-masters who are not members of the association, it is such a result as in the competition of business often follows from a course of proceeding that the law permits.” The primary object of the defendants was to build up their own business, and this they might lawfully do to the extent disclosed in that case, even to the injury of their rivals.

Similar decisions have been made in other courts where acts somewhat coercive in their nature and effect have been held justifiable under the law of competition. Mogul Steamship Co. _v._ McGregor, [1892] A. C. 25; Bohn Manuf. Co. _v._ Hollis, 54 Minn. 223; Macauley _v._ Tierney, 19 R. I. 255.

On the other hand, it was held in Carew _v._ Rutherford, 106 Mass. 1, that a conspiracy against a mechanic,—who is under the necessity of employing workmen in order to carry on his business,—to obtain a sum of money from him which he is under no legal obligation to pay, by inducing his workmen to leave him or by deterring others from entering into his employ, or by threatening to do this so that he is induced to pay the money demanded, under a reasonable apprehension that he cannot carry on his business without yielding to the demands, is an illegal, if not a criminal conspiracy; that the acts done under it are illegal, and that the money thus obtained may be recovered back. Chapman, C. J., speaking for the court, says that there is no doubt that, if the parties under such circumstances succeed in injuring the business of the mechanic, they are liable to pay all the damages done to him.

That case bears a close analogy to the one at bar. The acts there threatened were like those in this case, and the purpose was, in substance, to force the plaintiff to give his work to the defendants, and to extort from him a fine because he had given some of his work to other persons.

Without now indicating to what extent workmen may combine and in pursuance of an agreement may act by means of strikes and boycotts to get the hours of labor reduced or their wages increased, or to procure from their employers any other concession directly and immediately affecting their own interests, or to help themselves in competition with their fellow-workmen, we think this case must be governed by the principles laid down in Carew _v._ Rutherford, _ubi supra_. The purpose of these defendants was to force the plaintiffs to join the defendant association, and to that end they injured the plaintiffs in their business, and molested and disturbed them in their efforts to work at their trade. It is true they committed no acts of personal violence, or of physical injury to property, although they threatened to do something which might reasonably be expected to lead to such results. In their threat, however, there was plainly that which was coercive in its effect upon the will. It is not necessary that the liberty of the body should be restrained. Restraint of the mind, provided it would be such as would be likely to force a man against his will to grant the thing demanded, and actually has that effect, is sufficient in cases like this. As stated by Lord Bramwell in Regina _v._ Druitt, 10 Cox C. C. 592, 600, “No right of property, or capital, ... was so sacred, or so carefully guarded by the law of this land, as that of personal liberty.... That liberty was not liberty of the body only. It was also a liberty of the mind and will; and the liberty of a man’s mind and will, to say how he should bestow himself and his means, his talents, and his industry, was as much a subject of the law’s protection as was that of his body.”

It was not the intention of the defendants to give fairly to the employer the option to employ them or the plaintiffs, but to compel the latter against their will to join the association, and to that end to molest and interfere with them in their efforts to procure work by acts and threats well calculated by their coercive and intimidating nature to overcome the will.

The defendants might make such lawful rules as they please for the regulation of their own conduct, but they had no right to force other persons to join them.

The necessity that the plaintiffs should join this association is not so great, nor is its relation to the rights of the defendants, as compared with the right of the plaintiffs to be free from molestation, such as to bring the acts of the defendants under the shelter of the principles of trade competition. Such acts are without justification, and therefore are malicious and unlawful, and the conspiracy thus to force the plaintiffs was unlawful. Such conduct is intolerable, and inconsistent with the spirit of our laws.

The language used by this court in Carew _v._ Rutherford, 106 Mass. 1, 15, may be repeated here with emphasis, as applicable to this case: “The acts alleged and proved in this case are peculiarly offensive to the free principles which prevail in this country; and if such practices could enjoy impunity, they would tend to establish a tyranny of irresponsible persons over labor and mechanical business which would be extremely injurious to both.” See, in addition to the authorities above cited, Commonwealth _v._ Hunt, 4 Met. 111; Sherry _v._ Perkins, 147 Mass. 212, 214; Vegelahn _v._ Guntner, 167 Mass. 92, 97; St. 1894, c. 508, § 2;[612] State _v._ Donaldson, 3 Vroom, 151; State _v._ Stewart, 59 Vt. 273; State _v._ Glidden, 55 Conn. 46; State _v._ Dyer, 67 Vt. 690; Lucke _v._ Clothing Cutters & Trimmers’ Assembly, 77 Md. 396.

As the plaintiffs have been injured by these acts, and there is reason to believe that the defendants contemplate further proceedings of the same kind which will be likely still more to injure the plaintiffs, a bill in equity lies to enjoin the defendants. Vegelahn _v._ Guntner, _ubi supra_.

Some phases of the labor question have recently been discussed in the very elaborately considered case of Allen _v._ Flood, _ubi supra_. Whether or not the decision made therein is inconsistent with the propositions upon which we base our decision in this case, we are not disposed, in view of the circumstances under which that decision was made, to follow it. We prefer the view expressed by the dissenting judges, which view, it may be remarked, was entertained not only by three of the nine lords who sat in the case, but also by the great majority of the common law judges who had occasion officially to express an opinion.

There must be, therefore, a decree for the plaintiffs. We think, however, that the clause, “or by causing or attempting to cause, any person to discriminate against any employer of members of plaintiffs’ said association (because he is such employer) in giving or allowing the performance of contracts to or by such employer,” is too broad and indefinite, inasmuch as it might seem to include mere lawful persuasion and other similar and peaceful acts; and for that reason, and also because so far as respects unlawful acts it seems to cover only such acts as are prohibited by other parts of the decree, we think it should be omitted.

Inasmuch as the association of the defendants is not a corporation, an injunction cannot be issued against it as such, but only against its members, their agents and servants.

As thus modified, in the opinion of the majority of the court, the decree should stand.

_Decree accordingly._

* * * * *

HOLMES, C. J. When a question has been decided by the court, I think it proper, as a general rule, that a dissenting judge, however strong his convictions may be, should thereafter accept the law from the majority and leave the remedy to the Legislature, if that body sees fit to interfere. If the decision in the present case simply had relied upon Vegelahn _v._ Guntner, 167 Mass. 92, I should have hesitated to say anything, although I might have stated that my personal opinion had not been weakened by the substantial agreement with my views to be found in the judgments of the majority of the House of Lords in Allen _v._ Flood, [1898] A. C. 1. But much to my satisfaction, if I may say so, the court has seen fit to adopt the mode of approaching the question which I believe to be the correct one, and to open an issue which otherwise I might have thought closed. The difference between my brethren and me now seems to be a difference of degree, and the line of reasoning followed makes it proper for me to explain where the difference lies.

I agree that the conduct of the defendants is actionable unless justified. May _v._ Wood, 172 Mass. 11, 14, and cases cited. I agree that the presence or absence of justification may depend upon the object of their conduct, that is, upon the motive with which they acted. Vegelahn _v._ Guntner, 167 Mass. 92, 105, 106. I agree, for instance, that if a boycott or a strike is intended to override the jurisdiction of the courts by the action of a private association, it may be illegal. Weston _v._ Barnicoat, 175 Mass. 454. On the other hand, I infer that a majority of my brethren would admit that a boycott or strike intended to raise wages directly might be lawful, if it did not embrace in its scheme or intent violence, breach of contract, or other conduct unlawful on grounds independent of the mere fact that the action of the defendants was combined. A sensible workingman would not contend that the courts should sanction a combination for the purpose of inflicting or threatening violence or the infraction of admitted rights. To come directly to the point, the issue is narrowed to the question whether, assuming that some purposes would be a justification, the purpose in this case of the threatened boycotts and strikes was such as to justify the threats. That purpose was not directly concerned with wages. It was one degree more remote. The immediate object and motive was to strengthen the defendants’ society as a preliminary and means to enable it to make a better fight on questions of wages or other matters of clashing interests. I differ from my brethren in thinking that the threats were as lawful for this preliminary purpose as for the final one to which strengthening the union was a means. I think that unity of organization is necessary to make the contest of labor effectual, and that societies of laborers lawfully may employ in their preparation the means which they might use in the final contest.

Although this is not the place for extended economic discussion, and although the law may not always reach ultimate economic conceptions, I think it well to add that I cherish no illusions as to the meaning and effect of strikes. While I think the strike a lawful instrument in the universal struggle of life, I think it pure phantasy to suppose that there is a body of capital of which labor as a whole secures a larger share by that means. The annual product, subject to an infinitesimal deduction for the luxuries of the few, is directed to consumption by the multitude, and is consumed by the multitude always. Organization and strikes may get a larger share for the members of an organization, but, if they do, they get it at the expense of the less organized and less powerful portion of the laboring mass. They do not create something out of nothing. It is only by divesting our minds of questions of ownership and other machinery of distribution, and by looking solely at the question of consumption,—asking ourselves what is the annual product, who consumes it, and what changes would or could we make,—that we can keep in the world of realities. But, subject to the qualifications which I have expressed, I think it lawful for a body of workmen to try by combination to get more than they now are getting, although they do it at the expense of their fellows, and to that end to strengthen their union by the boycott and the strike.[613]

MARTELL _v._ WHITE SUPREME JUDICIAL COURT, MASSACHUSETTS, MARCH 1, 1904. _Reported in 185 Massachusetts Reports, 255._

Tort for alleged conspiracy to injure plaintiffs business. In the Superior Court, Bishop, J., ordered a verdict for defendants, and plaintiff excepted.

HAMMOND, J. The evidence warranted the finding of the following facts, many of which were not in dispute. The plaintiff was engaged in a profitable business in quarrying granite and selling the same to granite workers in Quincy and vicinity. About January, 1899, his customers left him, and his business was ruined through the action of the defendants and their associates.

The defendants were all members of a voluntary association known as the Granite Manufacturers’ Association of Quincy, Mass., and some of them were on the executive committee. The association was composed of “such individuals, firms, or corporations as are, or are about to become manufacturers, quarriers, or polishers of granite.” There was no constitution, and, while there were by-laws, still, except as hereinafter stated, there was in them no statement of the objects for which the association was formed. The by-laws provided among other things for the admission, suspension and expulsion of members, the election of officers, including an executive committee, and defined the respective powers and duties of the officers. One of the by-laws read as follows: “For the purpose of defraying in part the expense of the maintenance of this organization, any member thereof having business transactions with any party or concern in Quincy or its vicinity, not members hereof, and in any way relating to the cutting, quarrying, polishing, buying or selling of granite (hand polishers excepted), shall for each of said transactions contribute at least $1 and not more than $500. The amount to be fixed by the association upon its determining the amount and nature of said transaction.”

## Acting under the by-laws, the association investigated charges which

were made against several of its members that they had purchased granite from a party “not a member” of the association. The charges were proved, and under the section above quoted it was voted that the offending

## parties “should respectively contribute to the funds of the association”

the sums named in the votes. These sums ranged from $10 to $100. Only the contribution of $100 has been paid, but it is a fair inference that the proceedings to collect the others have been delayed only by reason of this suit. The party “not a member” was the present plaintiff, and the members of the association knew it. Most of the customers of the plaintiff were members of the association, and after these proceedings they declined to deal with him. This action on their part was due to the course of the association in compelling them to contribute as above stated, and to their fear that a similar vote for contribution would be passed should they continue to trade with the plaintiff.

The jury might properly have found also that the euphemistic expression “shall contribute to the funds of the association” contained an idea which could be more tersely and accurately expressed by the phrase “shall pay a fine,” or, in other words, that the plain intent of the section was to provide for the imposition upon those who came within its provisions of a penalty in the nature of a substantial fine. The bill of exceptions recites that “there was no evidence of threats or intimidation practiced upon the plaintiff himself, and the acts complained of were confined to the action of the society upon its own members.” We understand this statement to mean simply that the acts of the association concerned only such of the plaintiff’s customers as were members, and that no pressure was brought to bear upon the plaintiff except such as fairly resulted from action upon his customers. While it is true that the by-law was not directed expressly against the plaintiff by name, still he belonged to the class whose business it was intended to affect, and the proceedings actually taken were based upon transactions with him alone, and in that way were directed against his business alone. It was the intention of the defendants to withdraw his customers from him, if possible, by the imposition of fines upon them, with the knowledge that the result would be a great loss to the plaintiff. The defendants must be presumed to have intended the natural result of their acts.

Here, then, is a clear and deliberate interference with the business of a person with the intention of causing damage to him and ending in that result. The defendants combined and conspired together to ruin the plaintiff in his business, and they accomplished their purpose. In all this have they kept within lawful bounds? It is elemental that the unlawfulness of a conspiracy may be found either in the end sought or the means to be used. If either is unlawful within the meaning of the term as applied to the subject, then the conspiracy is unlawful. It becomes necessary, therefore, to examine into the nature of the conspiracy in this case, both as to the object sought and the means used.

The case presents one phase of a general subject which gravely concerns the interests of the business world and indeed those of all organized society, and which in recent years has demanded and received great consideration in the courts and elsewhere. Much remains to be done to clear the atmosphere, but some things at least appear to have been settled, and certainly at this stage of the judicial inquiry it cannot be necessary to enter upon a course of reasoning or to cite authorities in support of the proposition that while a person must submit to competition he has the right to be protected from malicious interference with his business. The rule is well stated in Walker _v._ Cronin, 107 Mass. 555, 564, in the following language: “Every one has a right to enjoy the fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as a result of competition, or the exercise of like rights by others, it is _damnum absque injuria_, unless some superior right by contract or otherwise is interfered with. But if it come from the merely wanton or malicious acts of others, without the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing.”

In a case like this, where the injury is intentionally inflicted, the crucial question is whether there is justifiable cause for the act. If the injury be inflicted without just cause or excuse, then it is

## actionable. Bowen, L. J., in Mogul Steamship Co. _v._ McGregor, 23 Q. B.

D. 598, 613; Plant _v._ Woods, 176 Mass. 492. The justification must be as broad as the act and must cover not only the motive and the purpose, or in other words the object sought, but also the means used.

The defendants contend that both as to object and means they are justified by the law applicable to business competition. In considering this defence it is to be remembered, as was said by Bowen, L. J., in Mogul Steamship Co. _v._ McGregor, L. R. 23 Q. B. D. 598, 611, that there is presented “an apparent conflict or antimony between two rights that are equally regarded by the law—the right of the plaintiff to be protected in the legitimate exercise of his trade and the right of the defendants to carry on their business as seems best to them, provided they commit no wrong to others.” Here, as in most cases where there is a conflict between two important principles, either of which is sound and to be sustained within proper bounds, but each of which must finally yield to some extent to the other, it frequently is not possible by a general formula to mark out the dividing line with reference to every conceivable case, and it is not wise to attempt it. The best and only practicable course is to consider the cases as they arise, and, bearing in mind the grounds upon which the soundness of each principle is supposed to rest, by a process of elimination and comparison to establish points through which at least the line must run and beyond which the party charged with trespass shall not be allowed to go.

While the purpose to injure the plaintiff appears clearly enough, the object or motive is left somewhat obscure upon the evidence. The association had no written constitution, and the by-laws do not expressly set forth its objects. It is true that from the by-laws it appears that none but persons engaged in the granite business can be members, and that a member transacting any business of this kind with a person not a member is liable to a fine; from which it may be inferred that it is the idea of the members that for the protection of their business it would be well to confine it to transactions among themselves, and that one at least of the objects of the association is to advance the interests of the members in that way. The oral testimony tends to show that one object of the association is to see that agreements made between its members and their employees and between this association and similar associations in the same line of business be kept and “lived up to.” Whether this failure to set out fully in writing the objects is due to any reluctance to have them clearly appear or to some other cause, is of course not material to this case. The result, however, is that its objects do not so clearly appear as might be desired; but in view of the conclusion to which we have come as to the means used, it is not necessary to inquire more closely as to the objects. It may be assumed that one of the objects was to enable the members to compete more successfully with others in the same business, and that the acts of which the plaintiff complains were done for the ultimate protection and advancement of their own business interests, with no intention or desire to injure the plaintiff except so far as such injury was the necessary result of measures taken for their own interests. If that was true, then so far as respects the end sought the conspiracy does not seem to have been illegal.

The next question is whether there is anything unlawful or wrongful in the means used as applied to the acts in question. Nothing need be said in support of the general right to compete. To what extent combination may be allowed in competition is a matter about which there is as yet much conflict, but it is possible that in a more advanced stage of the discussion the day may come when it will be more clearly seen and will more distinctly appear in the adjudication of the courts than as yet has been the case; that the proposition that what one man lawfully can do any number of men acting together by combined agreement lawfully may do, is to be received with newly disclosed qualifications arising out of the changed conditions of civilized life and of the increased facility and power of organized combination, and that the difference between the power of individuals acting each according to his own preference and that of an organized and extensive combination may be so great in its effect upon public and private interests as to cease to be simply one of degree and to reach the dignity of a difference in kind. Indeed, in the language of Bowen, L. J., in the Mogul Steamship case, _ubi supra_, page 616: “Of the general proposition that certain kinds of conduct not criminal in one individual may become criminal if done by combination among several, there can be no doubt. The distinction is based on sound reason, for a combination may make oppressive or dangerous that which if it proceeded only from a single person would be otherwise, and the very fact of the combination may show that the object is simply to do harm, and not to exercise one’s own just rights.” See also opinion of Stirling, L. J., in Giblan _v._ National Amalgamated Laborers’ Union, [1903] 2 K. B. 600, 621. Speaking generally, however, competition in business is permitted, although frequently disastrous to those engaged in it. It is always selfish, often sharp, and sometimes deadly. Conspicuous illustrations of the destructive extent to which it may be carried are to be found in the Mogul Steamship case above cited, and in Bowen _v._ Matheson, 14 Allen, 499. The fact therefore that the plaintiff was vanquished is not enough, provided that the contest was carried on within the rules allowable in such warfare.

It is a right, however, which is to be exercised with reference to the existence of a similar right on the part of others. The trader has not a free lance. He may fight, but as a soldier, not as a guerilla. The right of competition rests upon the doctrine that the interests of the great public are best subserved by permitting the general and natural laws of business to have their full and free operation, and that this end is best attained when the trader is allowed in his business to make free use of these laws. He may praise his wares, may offer more advantageous terms than his rival, may sell at less than cost, or, in the words of Bowen, L. J., in the Mogul Steamship case, _ubi supra_, may adopt “the expedient of sowing one year a crop of apparently unfruitful prices in order by driving competition away to realize a fuller harvest of profit in the future.” In these and many other obvious ways he may secure the customers of his rival, and build up his own business to the destruction of that of others, and so long as he keeps within the operation of the laws of trade his justification is complete.

But from the very nature of the case it is manifest that the right of competition furnishes no justification for an act done by the use of means which in their nature are in violation of the principle upon which it rests. The weapons used by the trader who relies upon this right for justification must be those furnished by the laws of trade, or at least must not be inconsistent with their free operation. No man can justify an interference with another man’s business through fraud or misrepresentation, nor by intimidation, obstruction or molestation. In the case before us the members of the association were to be held to the policy of refusing to trade with the plaintiff by the imposition of heavy fines, or in other words they were coerced by actual or threatened injury to their property. It is true that one may leave the association if he desires, but if he stays in it he is subjected to the coercive effect of a fine to be determined and enforced by the majority. This method of procedure is arbitrary and artificial, and is based in no respect upon the grounds upon which competition in business is permitted, but on the contrary it creates a motive for business action inconsistent with that freedom of choice out of which springs the benefit of competition to the public, and has no natural or logical relation to the grounds upon which the right to compete is based. Such a method of influencing a person may be coercive and illegal. Carew _v._ Rutherford, 106 Mass. 1.

Nor is the nature of the coercion changed by the fact that the persons fined were members of the association. The words of Munson, J., in Boutwell _v._ Marr, 71 Vt. 1, 9, are applicable here: “The law cannot be compelled by any initial agreement of an associate member to treat him as one having no choice but that of the majority, nor as a willing

## participant in whatever action may be taken. The voluntary acceptance of

by-laws providing for the imposition of coercive fines does not make them legal and collectible, and the standing threat of their imposition may properly be classed with the ordinary threats of suits upon groundless claims. The fact that the relations and processes deemed essential to a recovery are brought within the membership and proceedings of an organized body cannot change the result. The law sees in the membership of an association of this character both the authors of its coercive system and the victim of its unlawful pressure. If this were not so, men could deprive their fellows of established rights, and evade the duty of compensation, simply by working through an association.”

In view of the considerations upon which the right of competition is based, we are of opinion that as against the plaintiff the defendants have failed to show that the coercion or intimidation of the plaintiff’s customers by means of a fine is justified by the law of competition. The ground of the justification is not broad enough to cover the acts of interference in their entirety, and the interference being injurious and unjustifiable is unlawful.

We do not mean to be understood as saying that a fine is of itself necessarily or even generally an illegal implement. In many cases it is so slight as not to be coercive in its nature; in many it serves a useful purpose to call the attention of a member of an organization to the fact of the infraction of some innocent regulation; and in many it serves as an extra incentive to the performance of some absolute duty or the assertion of some absolute right. But where, as in the case before us, the fine is so large as to amount to moral intimidation or coercion, and is used as a means to enforce a right not absolute in its nature but conditional, and is inconsistent with those conditions upon which the right rests, then the coercion becomes unjustifiable and taints with illegality the act.

The defendants strongly rely upon Bowen _v._ Matheson, 14 Allen, 499; Mogul Steamship Co. _v._ McGregor, [1892] A. C. 25; Bohn Mfg. Co. _v._ Hollis, 54 Minn. 223; Macauley Bros. _v._ Tierney, 19 R. I. 255, and Cote _v._ Murphy, 159 Penn. St. 420. In none of these cases was there any coercion by means of fines upon those who traded with the plaintiff. Inducements were held out, but they were such as are naturally incident to competition, for instance, more advantageous terms in the way of discounts, increased trade, and otherwise. In the Minnesota case there was among the rules of the association a clause requiring the plaintiff to pay 10 per cent, but the propriety or the legality of that provision was not involved. In Bowen _v._ Matheson, it is true that the by-laws provided for a fine, but the declaration did not charge that any coercion by means of a fine had been used. A demurrer to the declaration was sustained upon the ground that there was no sufficient allegation of an illegal act. The only allegation which need be noticed here was that the defendants “did prevent men from shipping with” the plaintiff, and as to this the court said: “This might be done in many ways which are legal and proper, and as no illegal methods are stated the allegation is bad.” This comes far short of sustaining the defendants in their course of coercion by means of fines. As to the other cases cited by the defendant it may be said that, while bearing upon the general subject of which the present case presents one phase, they are not inconsistent with the conclusion to which we have come. Among the authorities bearing upon the general subject and having some relation to the questions involved in this case, see, in addition to those hereinbefore cited, Slaughter-House Cases, 16 Wall. 116; United States _v._ Addystone, 175 U. S. 211; Doremus _v._ Hennessy, 176 Ill. 608; Inter-Ocean Pub. Co. _v._ Associated Press, 184 Ill. 438; State _v._ Stewart, 59 Vt. 273; Olive _v._ Van Patten, 7 Tex. Civ. App. 630; Barr _v._ Essex Trades Council, 53 N. J. Eq. 101; Jackson _v._ Stanfield, 137 Ind. 592; Bailey _v._ Master Plumbers, 103 Tenn. 99; Brown _v._ Jacobs Pharmacy Co., 115 Ga. 429; Mogul Steamship Co. _v._ McGregor, 15 Q. B. D. 476; s. c. 21 Q. B. D. 544; S. C. 23 Q. B. D. 598; S. C. [1892] A. C. 25.

For the reasons above stated a majority of the court are of opinion that the case should have been submitted to the jury.

_Exceptions sustained._[614]

PICKETT _v._ WALSH SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 16, 1906. _Reported in 192 Massachusetts Reports, 572._

The plaintiffs were brick and stone “pointers.” The defendants were officers and members of bricklayers’ unions and stonemasons’ unions.[615]

One ground of complaint was that the defendants prevented the employment of the plaintiffs as “pointers” by notifying contractors that they would not lay the bricks or do the mason work on any building unless they were also employed to do the pointing of the brick and stone masonry. “The defendants in effect say we want the work of pointing the brick and stone laid by us, and you must give us all or none of the work.”[616] The court held that this conduct, although disastrous to the plaintiffs and damaging to the building contractors, was justifiable. “... it was within the rights of these unions to compete for the work of doing the pointing, and, in the exercise of their right of competition, to refuse to lay bricks and set stone unless they were given the work of pointing them when laid.”[617]

The other ground of action in Pickett _v._ Walsh was quite distinct from the foregoing. The firm of L. P. Soule & Son Company were the general contractors for the erection of the Ford building; but they had nothing to do with the employment of “pointers.” The pointing of that building was being done under a contract between the owners of the building and Pickett, a pointer who was one of the plaintiffs. Other buildings were being erected for other owners, on which the Soule Company were the general contractors, and as to which no complaint existed in reference to the pointing. The bricklaying and masonry on these other buildings were being done by members of the defendants’ union. The defendant officials induced all the bricklayers and masons to quit working for the Soule Company on these other buildings, because that company “was doing work on another building [the Ford building] in which work was being done by pointers, employed not by the L. P. Soule & Son Company but [by] the owners of the building.” The evident purpose was to thus induce the Soule Company to exert pressure on the owners of the Ford building to discontinue the employment of the pointers (Pickett _et als._). The court held that this conduct was not justifiable. The decision is not based on the ground that the defendants were intentionally inducing, or attempting to induce, a breach of contract; but on the broad ground that the forcing a neutral third person to exert a pressure on the plaintiff’s employer was not a lawful means of competition.

LORING, J.[618]

That strike has an element in it like that in a sympathetic strike, in a boycott, and in a blacklisting, namely: It is a refusal to work for A, with whom the strikers have no dispute, for the purpose of forcing A to force B to yield to the strikers’ demands. In the case at bar the strike on the L. P. Soule & Son Company was a strike on that contractor to force it to force the owner of the Ford building to give the work of pointing to the defendant unions. That passes beyond a case of competition where the owner of the Ford building is left to choose between the two competitors. Such a strike is in effect compelling the L. P. Soule & Son Company to join in a boycott on the owner of the Ford building. It is a combination by the union to obtain a decision in their favor by forcing third persons who have no interest in the dispute to force the employer to decide the dispute in their (the defendant union’s) favor. Such a strike is not a justifiable interference with the right of the plaintiffs to pursue their calling as they think best. In our opinion organized labor’s right of coercion and compulsion is limited to strikes on persons with whom the organization has a trade dispute; or to put it in another way, we are of the opinion that a strike on A, with whom the striker has no trade dispute, to compel A to force B to yield to the strikers’ demands, is an unjustifiable interference with the right of A to pursue his calling as he thinks best.[619]

BARR _v._ THE ESSEX TRADES COUNCIL COURT OF CHANCERY, NEW JERSEY, OCTOBER TERM, 1894. _Reported in 53 New Jersey Equity Reports, 101._

On order to show cause why injunction should not issue.[620]

The original complainant was the sole proprietor and publisher of a daily morning newspaper called the “Newark Times.”

The defendants are eighteen bodies known as “labor unions,” embracing many trades in the city of Newark, affiliated in a society or representative body known as “Essex Trades Council.”

The Essex Trades Council is a voluntary association, composed of delegates chosen thereto by each of the eighteen defendant unions. Meetings are held weekly. Every organization represented in the council is required to make a monthly report of union purchases, and failing to do so for two consecutive months, its products are not to be considered as “fair.”

A circular, issued by the Council in 1893, addressed to the public, states:—

“The Essex Trades Council has for some time past been concentrating the trade of its members and those whom these could influence, upon the goods made and recommended by organized fair labor, and the stores and places where these goods are sold. The regular system of purchase reports from individual consumers, transmitted through their organization, places the council in a position to announce that it is already turning thousands of dollars of trade every week away from those indifferent to the welfare of the worker, and into the pockets of labor’s proven friends. That these friends may receive greater support by being made more readily known to organized working men and their many sympathizers among lovers of justice, together forming the great bulk of the consuming public, the Essex Trades Council will shortly issue a series of cards for free display in all business establishments especially deserving the patronage of organized fair consumers, their families, associates and friends.”

The plan of operation, as developed by the papers and exhibits filed in the cause, is that each individual member of the different unions is required at stated periods to fill out a blank slip furnished for that purpose, stating the amount expended by him in purchase, the character of the articles bought, and the names of the tradesmen with whom he has dealt. These cards, when filled in, are returned by the members to their own union, and by the union reported to the council. A failure by a union to so report for two consecutive months, places its products under the ban of organized labor as represented in the council. These reports place the trades council in possession of data as to the amount of purchases by the members of the unions, and the tradesmen with whom their dealing is carried on, from which its officers are enabled to estimate, with some degree of accuracy, the volume of purchases by the members of the several organizations within a stated period of time.

The next step is an agreement in writing purporting to be made between the Essex Trades Council and a tradesman, by which the latter, “in return for the patronage of united fair consumers,” promises and agrees to buy as consumer, engage as employer, keep as dealer, as exclusively as he can, such labor and goods as may be announced as fair by a

## particular union and endorsed by the council of consumers of the Essex

Trades Council.

Cards are then issued to the tradesmen, under the seal of the trades council, addressed “to all fair consumers,” each certifying that the person to whom it is issued “is a fair consuming dealer,” and is entitled to their fraternal support until a specified date. Coupons are annexed for certification by particular industries. These cards are of such size, color and appearance that, if publicly displayed in stores or places of business, they will attract attention.

There was issued, under date of March 31, 1894, “by the Essex Trades Council and auxiliary circle bodies,” a small pamphlet of convenient size to be carried in the pocket, which is entitled “The Fair List of Newark, N. J.,” and to be “for the information of people who buy service or product and who have enterprise enough to seek to place their money where it will do them most good.” It contains names and addresses of tradesmen and persons in business, including lawyers, interspersed with items of information and advice.

* * * * *

The plaintiff Barr determined to employ “plate matter” in making up part of his daily paper. (This consists of reading matter edited, set up and stereotyped in New York.) All plaintiff’s employees were members of the local typographical union. This union had declared against the use of plate matter in the city of Newark, which fact was known to Mr. Barr. Through his foreman, he sought to have this resolution of the union relaxed in favor of his paper, but on its refusal so to do adhered to his determination, and, by letter dated March 13, 1894, informed his foreman that he would use plate matter on and after March 17th, saying further, that, not desiring to lose any of the men in his department, the union scale of wages would be maintained, and that he would gladly retain the services of such as might be willing to stay. Some of the employees determined to remain, others, however, left in consequence of his disregard of the union’s determination, and the union withdrew its endorsement of the newspaper. The union thereupon, through its delegates, informed the Essex Trades Council of this fact and requested its assistance. In response, the council appointed a committee in reference to the controversy, and, on March 30, 1894, issued a circular addressed to the public, which, after giving its version of the dispute, concludes with this appeal:—

“Friends, one and all, leave this council-boycotting ‘Newark Times’ alone. Cease buying it! Cease handling it! Cease advertising in it! Keep the money of fair men moving only among fair men. Boycott the boycotter of organized fair labor.”

This circular was distributed in the city of Newark.

In April, 1894, the trades council issued a small four-page sheet entitled “The Union Buyer. Official bulletin of united fair custom of Newark and vicinity. Issued by the Essex Trades Council.” It is impressed at the heading with the union label. It purports to be volume I, number 1, issued at Newark, N. J., April, 1894. Its first announcement is as follows:—

“Our mission—To support the supporters and boycott the boycotters of organized fair labor. To promote the public welfare by the diffusion of common cents, urging all to carry these in trade only to those who will return them to the people in the shape of living wages.”

The whole paper is devoted to the controversy between the unions and the “Newark Times,” no other object being considered. It refers throughout to that paper either by reversing the letters of the name “Times” as “Semit,” or by turning the type bottom side up. The first article after the declaration of its mission is a statement from Typographical Union No. 103, under the heading of “‘The Times’ Trouble.” The only grievance stated against the “Times” grows out of the use of plate matter, and ends with “workingmen and advertisers, remember that plate matter means forty-five cents a day, and understand why the ‘Newark Times’ is an unfair office.” Then follow five columns of “Notes and Comments.” These are all directed to the controversy, and are in vigorous and denunciatory language, and conclude as follows:—

“In conclusion, the council desires to state that the issue between it and the ‘Semit’ is now wide open. It is a fight between the ‘Semit’ and its supporters and the council and its supporters. We give the great public absolute freedom in the choice of its side, but not a single cent of our money will be knowingly let pass to any one who buys the ‘Semit,’ keeps the ‘Semit,’ advertises in the ‘Semit,’ or in any other way leads us to believe that a portion of our honestly-earned money may find its way into the pockets to furnish support to the unfair management of the ‘Semit’ or any of those who have so foully betrayed the cause of organized fair labor.”

At the foot of this document is placed, in large type, the request, “When through reading, please pass to your neighbor.”

This paper was circulated in Newark. There were other publications, but the defendants deny any responsibility for them, and there is no evidence to connect them with their issue or circulation.

Various labor unions represented in the trades council then passed a prepared set of resolutions, which were printed and distributed in Newark. One of these requested all enterprising business houses to abstain from advertising in the “Times” until the trouble had been adjusted, stating that hundreds of their friends had refused to buy and read the “Times,” and that its circulation had become considerably reduced because of its alleged unfair stand. Another asked such advertisers as had made contracts with the “Times” for definite periods, to consider whether it would not be far more advantageous for them in the end to take out their advertisements, leave their space entirely blank and pay the few cents their contracts called for, than to jeopardize thousands of dollars of trade that fair labor would be “compelled to withhold so long as such advertisements appeared, and for an indefinite period thereafter,” adding that “those who now continue to advertise in the ‘Times’ merely succeed in making themselves conspicuous as persons to carefully and studiously keep away from.”

These resolutions found their way into the hands of the advertisers in the “Times.”

The various trades unions, affiliated in the council, represent, as is claimed by them, a purchasing power amounting to over $400,000 in each and every week. Owing to the issue and distribution of the aforesaid circular and resolutions, the individual members of the union, and their friends and sympathizers, withheld their patronage from the “Newark Times.” The circulation of the paper was thereby considerably reduced.

The issue and distribution of said circular and resolutions caused certain persons, who had theretofore advertised in the “Times,” to cease advertising in that paper.

GREEN, V. C.

* * * * *

[After stating the testimony of Mr. Beckmeyer, secretary of the Essex Trades Council, as to the signification of the word “boycott,” as used in the circular and publications.]

From which it is to be gathered that the use of the word “boycott” in the publications, as applied to the “Times,” would be regarded by the members of the various unions to mean only that they should refrain from trading or dealing with the complainant, and with those who oppose the organizations in their actions and doings with reference to the complainant.

I do not see that this changes the character of the injury, but even if it does, so far as the members of the organizations are concerned, the difficulty is that these communications were addressed to the public and indiscriminately circulated. They were not intended only for members of the order by whom a technical signification would be given to the word “boycott,” but to the general public who would read them and give the word its accepted meaning.

[After quoting various definitions of “boycott”] Mr. Justice Taft, in Toledo Co. _v._ Penn. Co., 54 Fed. Rep. 746, says: “As usually understood a boycott is a combination of many to cause a loss to one person by coercing others against their will, to withdraw from him their beneficial business intercourse, through threats that, unless those others do so, the many will cause similar loss to them.”

But the defendants insist, and counsel vigorously urge, that this

## particular boycott is not open to such adverse criticism, because “there

was no violence, intimidation, coercion or threats used, and that everything was done in a peaceful and orderly manner.” How far is this claim borne out by the facts? It is true, there was no public disturbance, no physical injury, no direct threats of personal violence or of actual attack on or destruction of tangible property as a means of intimidation or coercion. Force and violence, however, while they may enter largely into the question in a criminal prosecution, are not necessary factors in the right to a civil remedy. But even in criminal law, I do not understand that intimidation, even when a statutory ingredient of crime, necessarily presupposes personal injury or the fear thereof. The clear weight of authority undoubtedly is that a man may be intimidated into doing, or refraining from doing, by fear of loss of business, property or reputation, as well as by dread of loss of life, or injury to health or limb; and the extent of this fear need not be abject, but only such as to overcome his judgment, or induce him not to do, or to do, that which otherwise he would have done or have left undone.

There can be no reasonable dispute that the whole proceeding or boycott in this controversy is to force Mr. Barr, by fear of loss of business, to conduct that business, not according to his own judgment, but in accordance with the determination of the typographical union, and, so far as he is concerned, it is an attempt to intimidate and coerce.

Next as to the members of the various labor unions. According to Mr. Beckmeyer, all the organizations represented in the trades council and the individual members thereof, in strict conformity with the purpose and object for which the said council was organized, withheld their patronage from the said newspaper on the mere announcement by the typographical union to the trades council that that union had withdrawn its endorsement from the “Times.” Why? It is said that it was only the exercise by each person of his right to spend his money as his own will dictated. The fallacy of this is apparent. It loses sight of the combination, the whole strength of which lies in the fact that each individual has surrendered his own discretion and will to the direction of the accredited representative of all the organizations. He no longer uses his own judgment, but, by entering into the combination, agrees to be bound by its decree. As is said in Templeton _v._ Russell, _supra_, “those men had bound themselves to obey, and they knew they had done so, and that if they did not obey they would be fined, or expelled from the union to which they belonged.” It is common knowledge, if indeed it does not amply so appear by the papers in this case, that a member of a labor organization who does not submit to the edict of his union asserts his independence of judgment and action at the risk, if not the absolute sacrifice, of all association with his fellow-members. They will not eat, drink, live or work in his company. Branded by the peculiarly offensive epithets adopted, he must exist ostracized, socially and industrially, so far as his former associates are concerned. Freedom of will under such circumstances cannot be expected.

Next as to the advertising public. Tradesmen advertise in newspapers for the sole purpose of drawing customers to their stores. An authoritative announcement, not from one, but from many sources, that the body of organized labor in the city or county representing a purchasing power of $400,000 a week would cease to deal with those whose advertisements appeared in the newspaper, would have a much more deterrent effect than any threat of violence. To say that this is only advice, or an intimation, to the advertiser for his guidance if he sees fit to accept it, is trifling with the language. Advice, behind which lurks the threat of the withdrawal of such a volume of business, could have no other effect than to intimidate and coerce, as it did in fact make several change their judgment, which had previously led them to advertise in the paper. The claim that this boycott was attempted to be enforced without intimidation or coercion will not bear the light of examination.

A legal excuse for the action of the defendants is next sought in the claim that the Essex Trades Council is a business institution, and that what it has done has been in prosecution of such business, seeking, I suppose, to bring the case within the rule of Mogul Steamship Co. _v._ McGregor, 15 Q. B. Div. 476; 23 Q. B. Div. 598. That case proceeded on the doctrine of a lawful competition in business, both parties being engaged in carrying on the same character of business, and the acts complained of having been adopted for the advancement of the defendant’s own trade, viz., carrying goods on a steamship line, although thereby damage to the other party necessarily ensued.

I see no similarity in the business of these parties. That of the complainant is the publisher of a newspaper. Members of the typographical union, and stereotypers’ and pressmen’s union, are skilled workmen, whose services might be employed in such business, but they are not carrying on any enterprise in competition with that of the complainant. So far as the other unions are concerned, the most, if not all of them, have no connection with such trade.

Neither does the claim of the Essex Trades Council, that it is a business institution, stand on any firmer ground. The only element of business which it is engaged in would appear from the facts to be the furnishing to tradesmen of printed cards, certifying that they are proper persons for the members of trades unions to deal with, suitable to be displayed in conspicuous places in such tradesmen’s places of business. This was supplemented by the issue, under date of March 31, 1894, of the small pocket pamphlet entitled “The Fair List of Newark, N. J.,” containing the names and addresses of tradesmen and persons in business in Newark, with items of information and advice. Why this is called a business does not appear. It is not stated that any compensation is either required or received by the trades council from the tradespeople for granting or continuing those endorsements, but whether this is so or not, it is in no sense a competing business with the publication of a daily newspaper, and therefore does not come within the principle of the case referred to.

The order to show cause, as far as relates to [eight specified organizations], they having all disclaimed any participation in the acts complained of, must be discharged, with costs. The said order to show cause, so far as relates to the other defendants, must be made absolute, with costs, and an injunction may issue against them, restraining them from distributing or circulating any circulars, printed resolutions, bulletins, or other publications containing appeals or threats against the “Newark Times,” or the complainants, its publishers, with the design and tending to interfere with their business in publishing said paper, and from making any threats or using any intimidation to the dealers or advertisers in such newspaper tending to cause them to withdraw their business from such newspaper.[621]

PIERCE _v._ THE STABLEMEN’S UNION LOCAL NO. 8760 SUPREME COURT, CALIFORNIA, JULY 6, 1909. _Reported in 156 California Reports, 70._

HENSHAW, J. The plaintiff went into equity seeking an injunction to restrain the defendants from illegal interference with its business. Plaintiff conducted a livery, board and feed stable in the city and county of San Francisco. The officers and representatives of defendant made request of him to “unionize” his stable by discharging his non-union employees and employing union men in their places. Upon his refusal, a strike of the union men was declared. Following the strike, a boycott was decreed. A patrol about plaintiffs place of business was established, and, under the findings, these representatives of the defendants, the pickets, “called forth in loud, threatening, and menacing tones to the patrons and customers of plaintiffs not to patronize plaintiffs in their said business; defendant, the Stablemen’s Union, through its agents and representatives, has stated to and threatened patrons and customers and other persons dealing with plaintiffs that if said patrons and customers and other persons continued to patronize and do business with plaintiffs, said Stablemen’s Union would cause them respectively to be boycotted in their business.” Menacing terms and threatening language were made use of by the agents, representatives, and pickets of the union toward the employees of the plaintiffs, such as: “Unfair stable; union men locked out and non-union men put in; look at this stable, the only unfair stable on Market Street; the stable that always was and always will be unfair. This is a scab stable. When we catch you outside, we will finish you. We will get you yet. It is a scab stable, full of scabs. We will fix you yet. It is a matter of time when we will get you all right. You will never get out of the stable alive. We will break you in half. We will beat you to death. When we catch you outside, we will finish you.” A judgment for an injunction followed upon these findings, and that judgment by its terms commanded the defendant, its agents and employees, to desist and refrain “from in any wise interfering with, or harassing, or annoying, or obstructing plaintiff in the conduct of the business of their stable, known as the Nevada Stables and situated at number 1350 Market Street, in the city and county of San Francisco; or from in any wise molesting, interfering with, threatening, intimidating, or harassing any employee or employees of plaintiffs; or from intimidating, harassing, or interfering with any customer or customers, patron or patrons of plaintiffs in connection with the business of plaintiffs, either by boycott or by threats of boycott, or by any other threats; or by any kind of force, violence, or intimidation, or by other unlawful means, seeking to induce any employee or employees of plaintiffs to withdraw from the service of plaintiffs; or by any kind of violence, threats, or intimidation inducing, or seeking to induce, any customer or customers, patron or patrons, of plaintiffs to withdraw their patronage or business from them, or from stationing or placing in front of said plaintiffs’ place of business any picket, or pickets, for the purpose of injuring, obstructing, or in any wise interfering with, the business of plaintiffs, or for the purpose of preventing any customer or customers, patron or patrons, of plaintiffs from doing business with them; or from in any other way molesting, intimidating, or coercing, or attempt to molest or intimidate or coerce any customer, patron, or employee of plaintiffs now or hereafter dealing with, or any employee now or hereafter employed by, or working for plaintiffs in their said business.”

This appeal is from the judgment. The findings are not attacked. Certain objections to the complaint are presented upon demurrer, and these may be briefly disposed of. The complaint is sufficient to invoke the interposition of a court of equity. It is in this respect similar to the complaint considered in Goldberg-Bowen Co. _v._ Stablemen’s Union, 149 Cal. 429. The complaint alleges specific acts calling for preventive relief, and is not confined to mere generalities, as was the case in Davitt _v._ American Bakers’ Union, 124 Cal. 99. The fact that certain of the acts charged amount to crimes or threatened crimes, does not offer reason why equity will refuse to restrain them. While equity will not attempt to restrain the commission of a crime as such, the fact that an act threatening irreparable injury to property rights, is of itself criminal, does not deprive a court of equity of its right and power to enjoin its commission. (_In re_ Debs, 158 U. S. 564; Sherry _v._ Perkins, 144 Mass. 212; Vegelahn _v._ Guntner, 167 Mass. 92.) In like manner, while equity will not enjoin against a trespass as such, yet when the acts committed and threatened are in the nature of a continuing trespass, working irreparable injury, they will be enjoined. (Boston R. R. _v._ Sullivan, 177 Mass. 230; Lembeck _v._ Nye, 47 Ohio, 336.)

Appellants’ principal contentions upon the appeal, however, are the following: First, that, as the controversy between these parties arises from and over a trade dispute, the court is powerless to grant any injunction under the language of “An act to limit the meaning of the word ‘conspiracy’ and also the use of restraining orders and injunctions as applied to disputes between employers and employees in the State of California, approved March 20, 1903” (Pen. Code, page 581); second, that the boycott is a legal weapon in a trade dispute and, therefore, an injunction should not issue to restrain its use or threatened use; third, that “picketing” as an adjunct to the boycott is itself legal and may not be forbidden.

1. As to the first of these contentions, this court had occasion in Goldberg, etc., Co. _v._ Stablemen’s Union, 149 Cal. 429, to consider the statute above referred to and relied upon by appellants, and declared that if the construction there contended for (and here contended for) was the proper construction, this provision of the court was void. Not only would it be void as violative of one’s constitutional right to acquire, possess, enjoy, and protect property, but as well would it be obnoxious to the constitution in creating arbitrarily and without reason a class above and beyond the law which is applicable to all other individuals and classes. It would legalize a combination in restraint of trade or commerce, entered into by a trades union, which would be illegal if entered into by any other persons or associations. It would exempt trades unions from the operation of the general laws of the land, under circumstances where the same laws would operate against all other individuals, combinations, or associations. It is thus not only special legislation, obnoxious to the constitution (Art. IV, sec. 25, subds. 3 and 33), but it still further violates the constitution in attempting to grant privileges and immunities to certain citizens or classes of citizens which, upon the same terms, have not been granted to all citizens (Art. I, sec. 21).

2. In considering the second proposition, whether or not a court of equity may enjoin a boycott, the meaning of the word is of primary importance. It is defined in 4 Am. & Eng. Enc. of Law, 2d ed., page 85, as follows: “The boycott is a conspiracy, the direct object of which is to occasion loss to the party or parties against whom the conspiracy is directed, and the means commonly used is the inducing of others to withdraw from such party or parties their patronage and business intercourse by threats that, unless they so withdraw, the members of the combination will cause, directly or indirectly, loss of a similar character to them.” Appellants announce their willingness to accept this definition, substituting the word “confederacy” or “combination” for “conspiracy.” But the definition, even as so amended, it will be noted is not complete. The “means commonly used” are specified, but other means may be and frequently are employed. A boycott may adopt illegal means and thus become a “conspiracy,” a word which imports illegality; or a boycott may employ legal means and methods, and thus be merely a legitimate combination by a number of men to accomplish, within the law, a legal result. The crux of the question and the strain in every case turns, then, upon the means employed. We think that to-day no court would question the right of an organized union of employes, by concerted

## action, to cease their employment (no contractual obligation standing in

the way), and this action constitutes a “strike.” We think, moreover, that no court questions the right of those same men to cease dealing by concerted action, either socially or by way of business, with their former employer, and this latter act, in its essence, constitutes the “primary boycott.” But what acts organized labor may do, and what means it may adopt to accomplish its end, without violation of the law, have presented questions of much nicety, over which the courts have stood, and still stand, widely divided. It would not be profitable to discuss and analyze these widely divergent cases. It is sufficient to formulate briefly the principles adopted in this state, many of which have recently found elaborate expression in the case of Parkinson _v._ Building & Trades Council of Santa Clara, 36 Cal. Dec. 445. The right of united labor to strike, in furtherance of their trade interests (no contractual obligation standing in the way) is fully recognized. The reason for the strike may be based upon the refusal to comply with the employees’ demand for the betterment of wages, conditions, hours of labor, the discharge of one employee, the engagement of another—any one of the multifarious ends which in good faith may be believed to tend toward the advancement of the employees. After striking, the employees may engage in a boycott, as that word is here employed. As here employed it means not only the concerted right to the withdrawal of social and business intercourse, but the right by all legitimate means of fair publication, and fair oral or written persuasion, to induce others interested in or sympathetic with their cause, to withdraw their social intercourse and business patronage from the employer. They may go even further than this, and request of another that he withdraw his patronage from the employer, and may use the moral intimidation and coercion of threatening a like boycott against him if he refuse so to do. This last proposition necessarily involves the bringing into a labor dispute between A and B, C who has no difference with either. It contemplates that C, upon the demand of B, and under the moral intimidation lest B boycott him, may thus be constrained to withdraw his patronage from A, with whom he has no controversy. This is the “secondary boycott,” the legality of which is vigorously denied by the English courts, the federal courts, and by the courts of many of the states of this nation. Without presenting the authorities, which are multitudinous, suffice it to state the other view in language of the President of the United States but recently uttered: “A body of workmen are dissatisfied with the terms of their employment. They seek to compel their employer to come to their terms by striking. They may legally do so. The loss and inconvenience he suffers he cannot complain of. But when they seek to compel third persons, who have no quarrel with their employer, to withdraw from all association with him by threats that, unless such third persons do so, the workmen will inflict similar injury on such third persons, the combination is oppressive, involves duress, and if injury results, it is actionable.” (President Taft, McClure’s Magazine, June, 1909, page 204.) Notwithstanding the great dignity which attaches to an utterance such as this, which, as has been said, is but the expression of numerous courts upon the subject-matter, this court, after great deliberation, took what it believed to be the truer and more advanced ground above indicated and fully set forth in Parkinson _v._ Building & Trades Council, etc., _supra_. In this respect this court recognizes no substantial distinction between the so-called primary and secondary boycott. Each rests upon the right of the union to withdraw its patronage from its employer and to induce by fair means any and all other persons to do the same, and in the exercise of those means, as the unions would have the unquestioned right to withhold their patronage from a third person who continued to deal with their employer, so they have the unquestioned right to notify such third person that they will withdraw their patronage if he continues so to deal. However opposed to the weight of federal authority the views of this court are, that they are not unique may be noted by reading National Protective Association _v._ Cumming, 170 N. Y. 315; Lindsay _v._ Montana Federation of Labor, (Mont.) 18 L. R. A. (N. S.) 707, where the highest courts of those states formulate and adopt like principles.

It has been said that it is important to any correct understanding of or adjudication upon such questions that a definition of the word “boycott” should be first stated. Thus, to say that a boycott is a “conspiracy” immediately implies illegality, and puts the conduct of the boycotters under the ban of the law. So also does the definition which describes boycotting as “illegal coercion” designed to accomplish a certain end. As we have undertaken to define boycott, it is an organized effort to persuade or coerce, which may be legal or illegal, according to the means employed. In other jurisdictions where a definition is given to a boycott which imports illegality the injunction will of course lie against boycotting as such. In this state the injunction will issue, depending upon the circumstances whether the means employed, or threatened to be employed, are legal or illegal.

3. We are thus brought to consider the method of “picketing,” the use of which appellants contend is a legal weapon in their hands. So far in this discussion we have dealt exclusively with the respective rights of the employer and of the employee. There are other parties, however, whose rights are entitled to equal consideration, and whose rights always become involved and imperilled when picketing is adopted as a coercive measure in aid of a boycott.

If the strikers have the right, as above indicated, to withdraw patronage themselves and by fair publication, written and oral persuasion to induce others to join in their cause, and finally by threat of like boycott to coerce others into so doing, their rights go no further than this. It is the equal right of the employer to insist before the law that his business shall be subject at the hands of the strikers to no other detriment than that which follows as a consequence of the legal acts of the strikers so above set forth. It is not to be forgotten that when the employees have struck, they occupy no contractual relationship whatsoever to their former employer, and have no right to coerce him or attempt to coerce him by the employment of any other means than those which are equally open to any other individual or association of individuals. No sanctity attaches to a trades union which puts it above the law, or which confers upon it rights not enjoyed by any other individual or association. The two classes of persons to whom we have adverted and whose rights necessarily become involved where a picket or patrol is established, are, first, the rights of those employed or seeking employment in the place of the striking laborers, and, second, the rights of the general public. It is the absolute, unqualified right of every employee, as well as of every other person, to go about his legal business unmolested and unobstructed and free from intimidation, force, or duress. The right of a labor association to strike is no higher than the right of a non-union workman to take employment in place of the strikers. Under the assurance and shield of the Constitution and of the laws, the non-union laborer may go to and from his labor and remain at his place of labor in absolute security from unlawful molestations, and wherever the laws fail to accord such protection, in so far is their execution to be blamed. In this country a man’s constitutional liberty means far more than his mere personal freedom. It means that, among other rights, his is the right freely to labor and to own the fruits of his toil. (_Ex parte_ Jentzsch, 112 Cal. 468.) Any act of boycotting, therefore, which tends to impair this constitutional right freely to labor, by means passing beyond moral suasion, and playing by intimidation upon the physical fears, is unlawful.

The inconvenience which the public may suffer by reason of a boycott lawfully conducted is in no sense a legal injury. But the public’s rights are invaded the moment the means employed are such as are calculated to and naturally do incite to crowds, riots, and disturbances of the peace.

A picket, in its very nature, tends to accomplish, and is designed to accomplish, these very things. It tends to and is designed, by physical intimidation, to deter other men from seeking employment in the places vacated by the strikers. It tends, and is designed, to drive business away from the boycotted place, not by the legitimate methods of persuasion, but by the illegitimate means of physical intimidation and fear. Crowds naturally collect; disturbances of the peace are always imminent and of frequent occurrence. Many peaceful citizens, men and women, are always deterred by physical trepidation from entering places of business so under a boycott patrol. It is idle to split hairs upon so plain a proposition, and to say that the picket may consist of nothing more than a single individual peacefully endeavoring by persuasion to prevent customers from entering the boycotted place. The plain facts are always at variance with such refinements of reason. Says Chief Justice Shaw in Commonwealth _v._ Hunt, 4 Met. 111: “The law is not to be hoodwinked by colorable pretences; it looks at truth and reality through whatever disguise it may assume.” If it be said that neither threats nor intimidations are used, no man can fail to see that there may be threats, and there may be intimidations, and there may be molesting, and there may be obstructing, without there being any express words used by which a man should show violent threats toward another, or any express intimidation. We think it plain that the very end to be attained by picketing, however artful may be the means to accomplish that end, is the injury of the boycotted business through physical molestation and physical fear caused to the employer, to those whom he may have employed or who may seek employment from him, and to the general public. The boycott, having employed these means for this unquestioned purpose, is illegal, and a court will not seek by over-niceties and refinements to legalize the use of this unquestionably illegal instrument. (Vegelahn _v._ Guntner, _supra_, Crump _v._ Commonwealth, 84 Va. 927; Union Pacific _v._ Ruef, 120 Fed. Rep. 124; 18 Ency. of Law, 2d ed., page 85.)

In conclusion, then, and applying these principles to the injunction here under consideration, it appears that, while the injunction was properly granted, it was broader in its terms than the law warrants. It was, for example, too broad in restraining defendants from “in any wise interfering with” plaintiff’s business, since the interference which we have discussed, of publication, reasonable persuasion, and threat to withdraw patronage, is legal and such as defendants could employ. So, also, was the injunction too broad in restraining defendants from “intimidating any customer by boycott or threat of boycott,” since, as has been said, the secondary boycott is likewise a legal weapon. In all other respects, however, the injunction was proper.

The trial court is directed to modify its injunction in the particulars here specified, and in all other respects the judgment will stand affirmed.

We concur: LORIGAN, J.; BEATTY, C. J.; MELVIN, J.

SHAW, J. I agree with all that is said by Justice Henshaw in his opinion, except the part relating to the so-called “secondary boycott” and the attempt to draw a distinction between the compulsion of third persons caused by picketing, and the compulsion of third persons produced by a boycott. My views concerning the “secondary boycott” are expressed in my dissenting opinion in Parkinson _v._ Building Trades Council, (Cal.) 98 Pac. 1040. The means employed for the coercion or intimidation of a third person in a “secondary boycott” are unlawful whenever they are such as are calculated to, and actually do, destroy his free will and cause him to act contrary to his own volition in his own business, to the detriment of the person toward whom the main boycott or strike is directed; in other words, whenever the means used constitute duress, menace, or undue influence. Whether this coercion or compulsion comes from fear of physical violence, as in the case of picketing, or from fear of financial loss, as in the secondary boycott, or from fear of any other infliction, is, in my opinion, immaterial, so long as the fear is sufficiently potent to control the action of those upon whom it is cast. I can see no logical or just reason for the distinction thus sought to be made. There is no such distinction in cases where contracts or wills are declared void, because procured by duress, menace, or undue influence. There should be none where actual injury is produced or threatened through such means acting upon third persons. Nor do I believe any well-considered case authorizes any such distinction. The opinions in the case of National Protective Association _v._ Cummings, 170 N. Y. 315, are devoted to a discussion of the right to strike and the limitations of that right and not to a discussion of the “secondary boycott.” A close analysis of the cases on the subject will, as I believe, show that this court stands alone on this point.

For these reasons I do not agree to that part of the judgment directing a modification of the injunction. I believe that it should stand in the form as given by the court below.

ANGELLOTTI, J., and SLOSS, J.

We concur in the judgment. The modification of the judgment is in line with the views announced in the Parkinson case. So far as “picketing” is concerned, while we are not prepared to hold that there may not be acts coming within that term as it is accepted and understood in labor disputes, that are entirely lawful and should not be enjoined, we believe that as to such “picketing” as is described in both findings and judgment in this case, the views expressed in the opinion of the court are correct.[622]

INDEX

ABANDONMENT, of action, if voluntary, equivalent to termination in defendant’s favor, 629. of action, by way of compromise, not equivalent to termination in defendant’s favor, 629.

ABSTRACTER OF TITLE, liability to third party injured by mistake or omission, 262 n.

ABUSE OF PROCESS, malicious, 653.

ACCIDENT, without negligence, excuses trespass to person, 29, 30, 35, 40. excuses trespass to personalty, 42. through negligence, no excuse for a trespass, 29, 30, 35.

## ACTION (see MALICIOUS INSTITUTION OF CIVIL ACTION).

ADVERTISING, blind, interference with, 838.

ADVICE, of counsel, probable cause for prosecution of plaintiff, 634.

ADVOCATE, statements by, when privileged, 697, 709.

ANIMALS, trespass on land by cattle, 404, 406. trespass on land by dog, 406 n., 445. trespass on land by chickens, 406 n. liability of owner for trespass by cattle driven on highway, 406, 409 n. statutes as to trespassing animals, 409, 410 n. common law as to trespassing, how far applicable in U. S., 410, 414 n. liability where cattle turned on another’s unenclosed lands, 414 n. liability of owner of unenclosed lands for injury to trespassing cattle, 409, 415. whether a right of pasturage on unenclosed lands, 415, 419 n. liability for injuries by wild, 419, 421, 422. liability for injuries by vicious domestic, 421, 421 n. classification of animals with respect to liability for injuries by, 423, 427 n. liability for injuries by bees, 425 n. what are wild, 424, 425. injury through fright at sight of wild animal, 427. interference with wild, bars recovery for injury, 430. contributory negligence of person injured by, 432 n. injury by domestic, scienter necessary, 433, 434 n. injury to trespasser by domestic, 434 n. vicious dog killed by trespassing dog, 434 n. what constitutes scienter, 434 n. liability for injury by vicious, where neither scienter nor negligence, 434, 436 n. what is dangerous propensity, 437. injury by horse running at large on highway, 438, 440. injury to person by trespassing, 441, 448, 451 n. injury to person by trespassing hen, 450. injury to person by trespassing animal, normally harmless, 450. escape of wild or vicious, through _vis major_, 471. escape of wild or vicious, through act of third person, 436 n. injury by vicious, when excited by third person, 436 n.

ARREST (see MALICIOUS INSTITUTION OF CIVIL ACTION), what is, 19, 20, 21.

ARTICLES OF PEACE, malicious exhibition of, 626.

ASSAULT, what is, 1, 2, 4, 6, 7, 10. what is not, 2, 3, 11. complete without contact, 1. aiming unloaded gun, 7, 9 n. firing revolver in plaintiff’s presence, but not at him, 7 n. act of preparation for, 2 n. intention of defendant, 7, 10 n. present ability to injure, 7, 9 n. aggravation of, 11. insulting words, looks, and gestures, no, 11, 11 n., 12 n.

ASSUMPTION OF RISK, by trespasser, 157, 160. by licensee, 177, 179. by servant, 201. by interference with wild animal, 430. of another’s negligence, 345, 351 n.

ATTACHMENT,

## action lies for maliciously causing, 629 n., 646.

ATTORNEY (see COUNSEL).

AUTOMOBILES, operation of, by unlicensed person, 402 n. unlicensed, status of in highway, 398, 400 n., 402 n.

BAILEE, standard of care, 82 n.

BANKRUPTCY, malicious institution of proceedings in, 644. imputation of, to a business man, 690.

BATTERY, what is, 12, 16. what is not, 12, 13. hostile touching, 12 n. touching _contra bonos mores_, 12 n. unauthorized surgical operation, 12 n. defendant must be actor to make, 13. touching plaintiff to attract his attention, when a, 13. by striking a horse when driven, 15. whether indictment for, will support action of malicious prosecution, 624. injury to clothes on plaintiff’s person, 16 n. cutting rope connecting plaintiff with his slave, 16 n. injury in course of “friendly scuffle,” 18 n.

BEES, liability of owner of, for injuries, 425 n.

BLASTING, injuries by, 40 n.

BOYCOTT (see COMPETITION, MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING CONDUCT OF ANOTHER), secondary, 998, 1004. for the purpose of strengthening union, 978, 987. for the purpose of gaining control of labor market, 989 n. for the purpose of forcing third person to bring pressure on employer, 997.

BREACH OF STATUTORY DUTY (see PUBLIC WRONG), how far ground of private action, 510, 512 n., 513, 515, 516. to repair street or sidewalk, 513 n. toward third person, 516, 520 n. liability to trespasser or licensee in case of, 520 n.

BUSINESS, slander of one in his (see DEFAMATION).

CANDIDATE, discussion of qualifications of, 755.

CARRIER, may be sued either upon contract or tort, 125, 126 n.

CLERGYMAN, imputation of misconduct to, 689 n. not liable for public refusal of communion, 757.

COMBINATION, whether members of, liable for acts which would be lawful if done by a single individual, 910, 976, 977 n.

COMMENT, fair, on public matters, not actionable, 726, 769. aspersion of motives not fair, 766, 775. false charge of specific acts not fair, 775 n., 785 n., 792. fair, distinguished from privileged occasion, 760, 779, 795 n. violent attacks and insulting words not, 786 n.

COMMERCIAL AGENCY, statements by, when privileged, 739 n.

COMPETITION, conflict between employers and employed is, 976. mere rivalry is fair, 936. puffing is fair, 826. combination to smash rates is fair, 906. reducing prices, 913. sending our rival’s business card in injurious manner, not fair, 831. bad motive, 913, 918, 923, 939. inducing servant at will to leave master, whether fair, 873 n. inducing servant to leave at expiration of term, 872 n. influencing third person by fraud, not fair, 827, 828 n., 907 (but see 858). misleading use of one’s own name, 829 n. influencing third persons by force or threats of physical injury, not fair, 864, 935, 937, 907. boycotting by threats of pecuniary damage, not fair, 952, 978, 989, 996, 998, 1004. inducing third person to break contract, not fair, 907, 908.

CONSENT (see LEAVE AND LICENSE).

CONSPIRACY (see COMBINATION), to defraud creditors, 846. to suborn witnesses, 710. to alter provisions of will, 852.

CONTRACT, causing breach of, a tort, 874, 884, 887, 908.

CONTRIBUTORY NEGLIGENCE (see PUBLIC WRONG), an affirmative defence, 264 n. must be negatived by plaintiff, 264, 264 n. a bar to recovery, 263, 266 n., 274. must be a proximate cause of the injury, 265, 294, 296 n. doctrine of comparative negligence, 267, 269, 269 n. apportionment of loss, 269, 273 n. doctrine of last clear chance, 275, 278, 279, 281, 282, 283, 288, 295, 296, 299, 301, 302, 308, 317, 320, 321, 322, 324, 337. of child, 327, 328, 329. humanitarian doctrine, 330. no bar in case of wilful or intentional injury, 334, 337. exposure of property to danger from negligence of another, 345, 351 n. of carrier not imputable to passenger, 352, 368 n. of driver of vehicle, when imputed, 359, 360 n., 361, 364. of participant in joint enterprise, 362. of agent or servant imputed, 362 n. of husband whether imputed to wife, 362 n. as between fellow servants, 362 n. of bailee whether bars bailor, 362 n. of parent or custodian of child whether imputed to child, 366, 370 n., 370. of beneficiary under Lord Campbell’s Act whether bar to recovery, 371, 374, 374 n., 377 n. in case of injury by animals, 432 n.

COUNSEL, statements by, when privileged, 697, 709 n. advice of, probable cause for prosecution, 634.

CREDITORS, conspiracy in fraud of (see CONSPIRACY).

CRITICISM (see COMMENT).

DAMAGE, whether action for deceit without, 525, 529, 595. measure of, in action for deceit, 604, 605, 606 n. caused by repetition of slander by third person too remote, 809. slander actionable by reason of special, 807, 808, 809, 811. loss of society of friends and consequent illness not special, 808. loss of hospitality is special, 810. loss of performance of gratuitous promise is special, 811. loss of performance of promise to marry is special, 884 n. loss of performance of contract where performance reasonably assured is special, 887 n. malicious but not defamatory words, whether actionable, if special, 812. no action for slander of title without special, 816. special, what is, 819 n., 847 n., 856, 859 n., 884 n. special, not necessary where one passes off his product as another’s, 829 n. special, not necessary in action for malicious injury to business, 854.

DANGEROUS USE OF LAND, for reservoir, 452, 482 n. “non natural use,” 463, 463 n. what is, 463 n., 466 n. tank of petroleum, 466 n., 482 n. stored nitroglycerin, 466 n. hydraulic mains, 467 n. customary or statutory authority to make, 467 n. no liability for, in case of _vis major_, 468. no liability in case of interference by third person, 475. steam boiler, 477. explosives, 482 n., 498, 502. doctrine of, considered, 477, 482. water pipes in building whether, 492. gas in pipes, 493 n. allowing land to go to weeds not, 493. maintaining fire, 496. fires set by locomotives, 497 n.

DAUGHTER, no action for marrying one’s, 869 n.

DECEIT, requisites of action for, 521, 530. whether action for, without damage, 529, 531, 595, 596 n. fraudulently procuring wife to refuse to live with husband, 533. sufficient if false statement one motive of plaintiff’s action, 535, 536 n. representation of intention, 537, 539, 541 n., 542, 547 n. purchase on credit with present intention not to pay, 542, 548. promissory representation, 550. known impossible prophecy, 551 n. statement of vendor as to price, 551, 553 n. statement of opinion, 551, 553, 555. statement as to value, 553 n. statement as to value of promissory note, 557. statement of value, whether opinion or fact, 551, 553, 555, 559, 560 n. statement as to matter within special knowledge of defendant, 556, 560, 616. concealment of material fact, 561, 562 n. statement must be known to be false or made recklessly, 563, 569 n. statement made recklessly without knowledge of facts, 573 n. liability for innocent or negligent misrepresentation, 572, 573 n., 574, 576. statement by fiduciary, 578. estoppel to deny truth of statement, 580, 582 n. duty to make representation good, 581. duty to know whether statement true, 583, 584 n. statement of belief as if fact, 584. statement without reasonable ground for belief, 588 n. reliance on statement where defendant obviously without personal knowledge, 588 n. not necessary that defendant profit by, 588. statement expected to be passed on to others, 592, 595 n. statement not expected to be passed on to others, 595. procuring plaintiff to incur liability, 597, 598. procuring plaintiff to refrain from selling property, 599, 601. whether plaintiff must use diligence to guard against, 606, 607 n., 608, 612 n., 616, 617 n. execution of instrument without reading, 608 n. reliance on representation where equal means of knowledge, 608 n., 612. reliance on friendship, 608 n. reliance on representation where plaintiff informed of truth by another, 612 n. reliance on assertion of title, 612 n. reliance on statement as to boundary, 612 n. reliance on representation as to quantity of land, 612, 613. refusal of defendant to put representation in writing, 612 n. representation as to law, 616 n. stipulations against liability for, 617. measure of damage in action for, 604, 605, 606 n.

DEFAMATION, _Publication_, communication to plaintiff alone not a, 657, 659. communication to plaintiff’s wife, 658. communication by defamer to his own wife, 658 n. communication to business partner, 658 n. communication to plaintiff’s attorney, 659 n. mailing of post card, whether a, 660 n. in ignorance of the libel, 660 n. must be of and concerning plaintiff, 665. of and concerning plaintiff, what is, 669, 672, 676. reading letter to third person a, 658. reading letter by third person a, 659. _Libel_, what is, 679. defamatory statement that describes two different persons, 671. defamatory statements partially describing each of two different persons, 672. words injurious to plaintiff in the eyes of part of the community, 673, 674 n. use of plaintiff’s name to describe fictitious person, 674. _Slander_, words imputing crime, 661, 682, 683. words imputing unchastity to a woman, 683, 685. words disparaging one in his calling, 687, 690, 691. imputation of misconduct to clergyman, 689 n. imputation of misconduct to teacher, 689 n. imputation of drunkenness to officer, 689 n. imputation of insolvency to tradesman, 690. imputation of cheating to tradesman, 691 n. imputation of ignorance to physician, 692. imputation of misconduct in office of honor not of profit, 693 n. words imputing a loathsome disease, 694, 695. imputation of insanity, 694, 695 n. defamatory words causing special damage, 807, 808, 809, 811. words to be taken in natural sense, 661. _Justification_, truth a, 695. belief in truth not, 676, 771 n. repetition not a, 677. _Absolutely Privileged Occasions_, statements in legislative proceedings, 697 n., 710 n. in course of acts of state, 697 n. official statements of administrative officers, 710 n. statements in judicial proceedings, by judge, 695; by witness, 703, 707; by counsel, 697, 702 n. what are judicial proceedings, 702 n., 710 n. irrelevant statements in judicial proceedings, 696, 703, 707, 709 n. what statements are irrelevant, 704, 709 n., 710 n. _Conditionally Privileged Occasions_, reports of legislative proceedings, 720. reports of judicial proceedings, 714. reports of ex parte judicial proceedings, 716. reports of quasi judicial proceedings, 729, 729 n. report of proceedings of church commission, 730 n. petition or memorial for removal of public officer, 768 n. fair abstracts of judicial proceedings, 731. reports of public meetings in general, whether, 727, 728 n. publication of reports of administrative officers, 729 n. reports of news by newspapers not, 732. statements in common interest of maker and receiver, 734, 736 n. statements by person immediately interested to protect his own interest, 737 n. statement of suspicions in course of investigation of crime, 736. statement in course of dispute as to property, 738 n. solicited statements in interest of receiver, 738. statement by commercial agency, 739 n. statement by attorney to client, 740 n. statement in course of business duty, 740 n. statement by member of family as to character of suitor, 740 n. statement as to character of candidate for admission to society, 740 n. solicited statements as to character of servant, 738. solicited statements as to credit of tradesman, 739 n. statements by a fiduciary to his principal, 740 n. volunteered statements in interest of receiver, when, 740, 746 n., 747, 749. publication of, in presence of stranger, 750, 753, 754 n. general publication as to candidate for local office, 754 n. publication of matter of public interest in the community, 755. statements in public meetings, 756 n. published reply to defamatory statements, 756 n. publication to representative of interested receiver, 763. publication of, on post card, not justifiable, 754. publication of, to type-writer, whether justifiable, 758, 761 n. publication of, to wrong person, by mistake, whether excused, 761 n. malice destroys immunity in, 761. _Fair Comment_, upon public matters not actionable, 726, 769, 771 n. what are public matters, 771 n., 795 n. distinguished from privilege, 770, 779, 795 n. criticism of published writings when, 772, 775, 782. aspersion of motives not, 769, 775. false charges of specific acts, 775 n., 785 n., 792. violent attacks and insulting statements, not, 786 n. _Malice_, in fact and law, 662. what is, 749, 771 n. burden is on plaintiff to show, 790 n. publication _prima facie_ evidence of, 663. express, must be proved, if occasion is privileged, 790. a question of _bona fides_ not of reasonableness, 763. a question of reasonableness as well as _bona fides_, 766.

DISPARAGEMENT OF PROPERTY, 815 n. of title (see SLANDER OF TITLE). of goods, 819, 823 n., 861.

DOGS (see ANIMALS), trespass on land by, 406 n., 445.

DRUNKENNESS, no excuse for tort, 662 n.

EMPLOYER AND EMPLOYEE (see MASTER AND SERVANT), right of employer “to have labor flow freely to him,” 903. inducing breach of contract by employees, 884, 887. inducing employer to discharge employee because not a member of trade union, 939, 978 (see MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING CONDUCT OF ANOTHER). boycotting, 950, 952, 978, 988, 989 n., 997, 998, 1004. picketing, 978 n.

ENTICING, servant, 864, 868.

FALSE IMPRISONMENT (see IMPRISONMENT).

FENCE, malicious erection of, 928.

FRIGHT (see MENTAL OR NERVOUS SHOCK).

HUMANITARIAN DOCTRINE (see CONTRIBUTORY NEGLIGENCE).

IMPRISONMENT (see ARREST), what is, 18, 20, 21, 21 n., 23, 23 n., 28 n. contact not necessary, 19, 21, 23. what is not, 19, 20, 24. mere words without submission to restraint not an, 19, 20.

## partial obstruction not an, 24.

shadowing by detectives, 23 n.

IMPUTED NEGLIGENCE (see CONTRIBUTORY NEGLIGENCE).

INEVITABLE ACCIDENT (see ACCIDENT).

INFANT, liable for torts, 96, 97 n. negligence of, 88, 88 n., 90, 93, 93 n.

INJUNCTION, maliciously obtaining, 648 n.

INSANE PERSON, liable for torts, 29, 29 n., 662 n.

INSULT, gestures no assault, 11, 11 n., 12 n. looks no assault, 11, 11 n., 12 n. words no assault, 11, 11 n., 12 n.

## action lies for written or spoken, by statute in Va., 657 n.

insulting statements not fair comment, 786 n.

INVITEE (see OCCUPIER OF PREMISES).

JUDGE, statements by, absolutely privileged, 695.

JUDICIAL PROCEEDINGS, statements in, absolutely privileged, 695, 697, 703, 707, 709 n. reports of, conditionally privileged, 714, 716, 720, 731, 761. reports of quasi, conditionally privileged, 729.

JURY, malice in action for malicious prosecution a question for, 638. malice in fact in defamation a question for, 662, 752, 763, 790.

JUSTICE OF THE PEACE, advice of, when probable cause for prosecution, 635 n.

LABORERS, STATUTE OF, actress not a servant within, 879.

LAND (see MALICIOUS USE OF ONE’S OWN LAND; DANGEROUS USE OF LAND).

LANDLORD AND TENANT, liability of landlord for defect in premises, 220, 222 n.

LAST CLEAR CHANCE (see CONTRIBUTORY NEGLIGENCE).

LEAVE AND LICENSE, no bar to action for injury received in prize fight, 18. procuring abortion with plaintiff’s consent, 19 n. injury in course of illegal charivari party, 18 n.

LEGISLATIVE PROCEEDINGS, statements in absolutely privileged, 720. reports of conditionally privileged, 720.

LIABILITY WITHOUT FAULT (see ANIMALS; DANGEROUS USE OF LAND), constitutionality of legislation imposing, 482 n., 494 n.

LIBEL (see DEFAMATION).

LIQUIDATION, malicious proceedings in, against company, 645 n.

LORD CAMPBELL’S ACT, 372 n.

LUNACY, malicious proceedings in, 645 n.

LUNATIC (see INSANE PERSON).

MALICIOUS CONSPIRACY (see CONSPIRACY).

MALICIOUS EXHIBITING OF ARTICLES OF THE PEACE,

## actionable, 625.

MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING CONDUCT OF ANOTHER, enticing servant to leave master, 864. debauching servant of another, 866. inducing breach of contract, 874, 884, 887. inducing breach of contract by laborers, 884, 887, 979 n. suborning witness to commit perjury, 710. helping debtor to make assignment in fraud of creditors, 846. slander of title, 813, 816. disparagement of goods, 819. fraudulent imitation of trade-mark, 827. use of envelopes marked telegram leading patrons of telegraph company to believe latter imposing on them, 837 n. fraudulent statement that plaintiff had gone out of business, 854, 859. fraudulent sending out of plaintiff’s business card under injurious circumstances, 831. false though not defamatory imputation upon plaintiff, 812. slander of plaintiff’s wife resulting in injury to business, 837 n. fraudulently inducing testator to revoke bequest to plaintiff, 847, 849. false statement to mortgagee procuring foreclosure in breach of gratuitous promise to mortgagor, 849 n. fraudulently procuring third person to sell to defendant in breach of oral contract with plaintiff within statute of frauds, 852 n. fraudulently altering and defacing will leaving legacy to plaintiff, 852. loosening horse’s shoe to discredit blacksmith, 829. inducing servant at will to leave master, 868. frightening wild fowl from resorting to plaintiff’s land, 935, 937. threats of physical injury to plaintiff’s customers, 863, 864, 897, 935, 968. threats of pecuniary loss to plaintiff’s customers, 952, 996. threat of physical injury to plaintiff’s workmen, 863, 978 n. threat of vexatious suits against customers, 863 n. annoyance of workmen resorting to plaintiff, 979 n. threat to sell adjoining property to colored family, 923 n. threat by association of retail dealers to cease dealing with manufacturer or wholesale dealer, 997 n. threats, what may lawfully be threatened, 975, 975 n. refusal to insure ship if plaintiff employed as master, 836 n. sermon warning congregation against physician, 837 n. interference with blind advertisement, 838. inducing one not to contract with plaintiff, 906, 978, 989, 996, 998, 1004. boycotting, 952, 987, 989 n., 997, 997 n., 998, 1004, 1012 n. strike to strengthen union, 978, 988; to gain control of labor market, 989 n.; to bring pressure on third person, 997, 998, 1009; to procure discharge of plaintiff as means towards better conditions in shop, 998 n.; to get rid of objectionable foreman, 998 n. inducing employer to discharge employee because not a member of trade union, 939, 978. inducing employer to break contracts with laborers, 979 n. “smashing” rates, 906, 913. conspiracy, 910, 971. inciting pauper to sue plaintiff, 651.

MALICIOUS INJURY TO PLAINTIFF BY TORT TO ANOTHER, destruction of husband’s house by wife to injure insurer, 841.

MALICIOUS INSTITUTION OF CIVIL ACTION,

## actionable, 650 n.

not actionable, 649. voluntary abandonment of former action is failure, 629 n. abandonment by way of compromise not failure, 629 n. attachment vacated evidence of want of probable cause, 634 n. by instigating another to sue, 651. in name of another, 655. prosecution of unfounded claim for patent, 645 n.

MALICIOUS PROCEEDINGS, in bankruptcy, 644. in lunacy, 645 n. for removal of officer, 645 n. levy on execution under fraudulent judgment, 648 n. procurement of execution of search warrant, 648 n. attachment, 646. arrest on civil process, 648 n. holding to bail, 648 n. replevin, 648 n. garnishment, 648 n. procurement of injunction, 648 n. excessive attachment, 652 n. for winding up company, 645 n.

MALICIOUS PROSECUTION, _Institution of Criminal Proceedings_, 620. application for warrant but none issued, 624 n. arrest without warrant, no further prosecution, 624 n. search warrant issued, no arrest or seizure of property, 624 n. warrant issued, plaintiff leaves jurisdiction to avoid arrest, 620. _Nature of Criminal Charge_, 624. prosecution under unconstitutional statute, 624 n. prosecution in court without jurisdiction, 624 n. _Failure of Prosecution_, generally essential, 627. when not necessary, 625. _nolle prosequi_ is, 627. indictment quashed is, when, 629 n. striking from docket because in wrong court, when, 629 n. _Abandonment of Prosecution_, if voluntary equivalent to termination in defendant’s favor, 627. by way of compromise not equivalent to termination in defendant’s favor, 629 n. otherwise where settlement obtained by duress, 630 n. _Reasonable or Probable Cause_, essential, 630. definition of, 631 n. a question for court, 632, 637. conviction, though reversed, _prima facie_ evidence of, 632, 633 n. conviction, though reversed, conclusive evidence of, 627. commitment for grand jury, evidence of, 632, 633 n. finding of indictment evidence of, 632, 633 n. advice of counsel is, 634. advice of justice of the peace, whether, 635 n. advice of layman not, 635 n. what must be stated to counsel, 636 n. defendant’s belief in plaintiff’s innocence negatives, 639. failure of prosecution, whether evidence of want of, 633 n., 641. want of, not to be inferred from malice, 643 n. if not, still no action for, if plaintiff was in fact guilty, 644. _Malice_, meaning of, 637, 638 n., 642. question of fact for jury, 637. not a necessary inference from want of probable cause, 636, 641, 643 n. of no moment, if probable cause exists, 630. _Damage_, 624.

MALICIOUS USE OF ONE’S OWN LAND, general discussion of doctrine of, 923, 939, 952 n. by erecting fence to annoy neighbors, 927 n., 928. by erecting building annoying to neighbor, 926. by diverting percolating water, 928 n. malice must be dominant motive, 935 n. by frightening wild fowl from resorting to plaintiff’s land, 935, 937. by cutting trees causing evaporation from stream to injury of plaintiff’s water right, 938.

MALICIOUS WORDS (see DEFAMATION; MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING CONDUCT OF ANOTHER; SLANDER OF TITLE).

MANUFACTURER, liability of, for defects, 228, 233, 235, 251.

MARRIAGE, loss of, is special damage, 807. loss of performance of promise to marry, is special damage, 884 n. fraudulent, of plaintiff’s daughter, 869.

MASTER AND SERVANT, seduction of servant of another, 866. enticing servant of another, 864. threat of physical injury to servant of another, 863. inducing servant at will to leave master, 873 n.

MENTAL OR NERVOUS SHOCK,

## action for causing, 45, 49 n., 50, 57 n., 58, 61.

MISFEASANCE (see NEGLIGENCE).

MISTAKE, in addressing a privileged communication, 761 n. defamation by, 761 n.

MORAL DUTY, assumption of performance of, 129, 141. in absence of relation between parties, 131. where relation between parties, 134, 137 n.

MOTIVE (see MALICE), aspersion of, of public man, not fair comment, 769, 775.

NEGLIGENCE (see CONTRIBUTORY NEGLIGENCE; OCCUPIER OF PREMISES; TRESPASSERS; PUBLIC WRONG), without damage, no liability, 41. must be proximate cause of injury, 42. standard of care, 63, 66 n., 67, 76. ordinary care, definition of, 70. standard in case of physical disability, 71, 73. degrees of, 77, 79, 79 n., 82 n., 83, 85 n. statutory degrees of, 86. of infant, 88, 88 n., 90, 92 n., 93. proof of, 98, 102, 106, 111, 113, 115. duty of care, 120, 125. definition of, 156. requirement of duty of care toward person injured, 156. in performance of gratuitous undertaking, 184 n. liability for, of maker or vendor of chattel, 228, 233, 235, 246, 251. comparative negligence, 267, 268 n., 269. difference between gross negligence and wanton or reckless conduct, 340, 342 n., 343. as ground of recovery for injury by vicious animal, 434. breach of rules of a private corporation, whether, 508 n. violation of ordinance, whether, 508 n. breach of statutory duty, whether, 391, 400 n., 504, 506, 506 n. liability for negligent language, 573 n.

NERVOUS SHOCK (see MENTAL OR NERVOUS SHOCK).

NEWSPAPER, has no peculiar privilege in defamation, 732.

NOLLE PROSEQUI (see MALICIOUS PROSECUTION).

NONFEASANCE, 127, 129, 131, 134, 137, 142 n.

NUISANCE (see DANGEROUS USE OF LAND), “attractive” 165, 170 n., 170, 173, 176 n.; age to which doctrine applicable, 171 n. allowing land to go to weeds not, 493. trees shading another’s land not, 495. stored explosives, 498, 502.

OCCUPIER OF PREMISES (see TRESPASS; NUISANCE “attractive”; LANDLORD AND TENANT), liability to trespassers, 147, 149 n. liability to known trespassers, 149. liability to anticipated trespassers, 150, 154, 156 n. liability to trespassers prohibited by statute, 153 n. duty to look out for trespassers, 156 n. liability to licensee, 177, 179, 183, 183 n., 186, 191. injury to licensee by “trap,” 179. liability to children licensees, 183 n. liability where known permissive use by public, 183 n. liability in case of gratuitous carriage, 183 n. liability to licensee for negligent operation of active force, 186, 190 n. duty to notify of withdrawal of license, 191. liability to invitee, 194, 199 n. duty to child accompanying invitee, 200 n. liability to children invitees, 200 n. duty to invitee of licensee, 200 n. liability where plaintiff exceeds invitation, 200 n. liability where notice habitually disregarded, 201. not an insurer of safety of invitees, 203. duty toward invitees to ascertain condition of premises, 202. liability for injury to invitees by third persons, 204. who are invitees, 207, 214, 220 n. liability to social guest, 222, 225 n. liability in case of license conferred by law, 225, 227 n. liability to trespasser or licensee in case of breach of statutory duty, 520.

PARTY, statements by, privileged, 709 n.

PEACE, malicious exhibition of articles of, 626.

PHYSICAL IMPACT, necessity of, 45, 50, 58, 62 n.

PHYSICIAN, slander of, 691.

PICKETING, 897, 968, 978 n., 1005, 1010.

POSTAL CARD, whether mailing is publication, 660 n. sending privileged communication by, 754.

PRIVACY, interference with, 797.

PRIVILEGE (see DEFAMATION).

PRIZE FIGHT, each party to, liable to other, 18.

PROBABLE CAUSE (see MALICIOUS PROSECUTION).

PROFESSION (see DEFAMATION).

PROMISE, loss of performance of gratuitous, is special damage, 811.

PUBLIC MEETINGS, reports of, whether privileged, 727, 728 n.

PUBLIC WRONG, plaintiff’s participation in, no bar where wilful injury, 377. violation of Sunday law, whether bar to action for negligence, 379, 381, 388 n. violation of ordinance, whether bar to action for negligence, 388, 391. violation of licensing or registration law, whether bar to action for negligence, 398, 400 n. unlicensed automobile, status of, in highway, 398, 401 n., 402 n. injury by dog unmuzzled in violation of ordinance, 434 n. injuries by animals running at large contrary to statute, 441 n. breach of statutory duty, whether negligence, 391, 400 n., 504, 506, 506 n. violation of ordinance, whether negligence, 508 n.

PUBLICATION (see DEFAMATION).

REASONABLE AND PROBABLE CAUSE (see MALICIOUS PROSECUTION).

REPETITION, of slander, actionable, 677.

REPORTS, of legislative and judicial proceedings, privileged (see DEFAMATION).

RES IPSA LOQUITUR, inference of negligence, 98, 102, 102 n., 105 n., 106. necessary allegation, 105 n. doctrine applies only in absence of explanation, 105 n. in actions by servant against master, 107, 107 n. elements of the doctrine, 110 n. burden of proof not shifted, merely burden of going forward, 111 n. other inferences must be excluded, 113 n. simply a rule of evidence, 115 n.

SCIENTER (see ANIMALS).

SEARCH WARRANT, malicious procurement of execution of, 648 n.

SEDUCTION, of daughter, 866. of plaintiff’s fiancée, 884 n.

## action by woman for, 16.

statutory action for, 17 n. by guardian, 17 n.

SERVICE, LOSS OF, by enticing servant, 864. by seducing daughter or female servant, 866.

SLANDER (see DEFAMATION).

SLANDER OF TITLE (see DISPARAGEMENT OF PROPERTY), differs from slander of person, 813. what is, 815 n.

## action for, survives as injury to property, 813.

special damage essential, 816. whether malice required, 816 n. what is special damage, 819 n., 847 n., 855, 859 n., 883 n., 884 n.

SMASHING RATES, is fair competition, 906, 913.

SPECIAL DAMAGE (see DAMAGE).

SUBORNATION OF WITNESS,

## action for, 710.

SUNDAY LAWS (see PUBLIC WRONG).

TELEGRAM, sending privileged communication by, 753.

THREATS (see MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING CONDUCT OF ANOTHER).

TRADE, competition in (see COMPETITION). slander of one in (see DEFAMATION).

TRADE DISPUTES ACT (English), 897 n., 967 n.

TRADE-MARK, fraudulent imitation of, 827.

TRESPASSER (see NUISANCE “attractive”), takes risk of condition of premises, 157. negligent injury of, 147, 149, 150. wilful, negligent injury to, 149 n. child, duty to, 150 n., 160. occupier may assume, will look out for himself, 156 n. child, takes risk of condition of premises, 160. setting traps for, 160 n., 176 n.

TRUTH, justification in action for defamation, 695.

TURN TABLE CASES (see NUISANCE “attractive”).

TYPEWRITER, communication to, a publication, 758. communication to, not privileged, 758. communication to, privileged, 761 n.

VENDOR OF CHATTEL, liability of, to third persons for defects, 228, 233, 235, 251.

VOLENTI NON FIT INJURIA (see LEAVE AND LICENSE).

WATER COMPANY, liability in tort for failure to provide water, 262 n.

WEEDS (see DANGEROUS USE OF LAND).

WITNESS, no action against, for perjury, 712.

## action for subornation of, 710.

statements of, privileged (see DEFAMATION)

WORDS, insulting, no assault, 11, 11 n., 12 n. malicious (see MALICIOUS WORDS). construction of, in defamation, 661.

-----

Footnote 1:

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

Footnote 2:

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

Footnote 3:

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

Similarly, a mere preparation for a possible assault, but without any

## act indicating a present intention to do personal violence to another,

is not an assault. Lawson _v._ State, 30 Ala. 14; Godwin _v._ Collins, 67 Fla. 197; Penny _v._ State, 114 Ga. 77; Gober _v._ State, 7 Ga. App. 206; Haupt _v._ Swenson, 125 Ia. 694; State _v._ Painter, 67 Mo. 84; State _v._ Milsaps, 82 N. C. 549. But compare State _v._ Hampton, 63 N. C. 13.

Footnote 4:

Townsdin _v._ Nutt, 19 Kan. 282; Handy _v._ Johnson, 5 Md. 450; Fairme’s Case, 5 City Hall Rec. 95; Brister _v._ State, 40 Tex. Cr. 505; Western T. Co. _v._ Bowdoin, (Tex. Civ. App.) 168 S. W. 1 _Accord_. Jones _v._ State, 89 Ark. 213 (_semble_) _Contra_.

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

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

Footnote 5:

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

Footnote 6:

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

Footnote 7:

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

Footnote 8:

State _v._ Church, 63 N. C. 15 _Accord_.

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

Footnote 9:

The argument for the plaintiff is omitted.

Footnote 10:

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

Footnote 11:

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

Footnote 12:

State _v._ Daniel, 136 N. C. 571; Degenhardt _v._ Heller, 93 Wis. 662 _Accord_. Wood _v._ Young, 20 Ky. L. Rep. 1931 _Contra_. It is not an assault to make the kissing sign to another. Fuller _v._ State, 44 Tex. Cr. 463.

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

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

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

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

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

Footnote 13:

Meader _v._ Stone, 7 Met. (Mass.) 147 _Accord_.

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

Footnote 14:

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

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

Footnote 15:

Kerifford’s Case, Clayt. 22 pl. 38 _Accord_. See, also, Steinman _v._ Baltimore Laundry Co., 109 Md. 62; Courtney _v._ Kneib, 131 Mo. App. 204.

Footnote 16:

The statement of the case has been abridged.

Footnote 17:

Courtney _v._ Kneib, 131 Mo. App. 204 _Accord_. Compare Reynolds _v._ Pierson, 29 Ind. App. 273.

Footnote 18:

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

Footnote 19:

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

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

Footnote 20:

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

Footnote 21:

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

Weaver _v._ Bachert, 2 Pa. St. 80; Wrynn _v._ Downey, 27 R. I. 454 _Contra_.

Footnote 22:

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

Footnote 23:

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

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

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

Footnote 24:

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

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

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

Footnote 25:

McNay _v._ Stratton, 9 Ill. App. 215; Price _v._ Bailey, 66 Ill. 48; Hildebrand _v._ McCrum, 101 Ind. 61; Smith _v._ State, 7 Humph. 43; Sorenson _v._ Dundas, 50 Wis. 335 _Accord_.

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

Footnote 26:

Anon. 1 Vent. 306; Anon. 7 Mod. 8; Whithead _v._ Keyes, 3 All. 495 _Accord_.

Footnote 27:

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

Footnote 28:

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

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

Footnote 29:

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

Footnote 30:

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

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

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

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

Footnote 31:

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

Footnote 32:

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

Footnote 33:

Stat. 13 Ed. I. c. 48.

Footnote 34:

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

Footnote 35:

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

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

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

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

Footnote 36:

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

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

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

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

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

“827. A person who causes damage to another while in a condition of unconsciousness or in a condition of morbid disturbance of mental

## activity incompatible with the free determination of the will is not

responsible for the damage....”

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

Footnote 37:

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

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

Footnote 38:

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

Footnote 39:

Only the opinion of the court is given.

Footnote 40:

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

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

Footnote 41:

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

Footnote 42:

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

Footnote 43:

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

Compare Clifton _v._ Hooper, 6 Q. B. 468.

Footnote 44:

Statement condensed. Only part of opinion is given.

Footnote 45:

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

Footnote 46:

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

Footnote 47:

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

Footnote 48:

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

Footnote 49:

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

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

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

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

Footnote 50:

Portions of the statement of facts have been omitted.

Footnote 51:

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

Footnote 52:

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

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

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

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

Footnote 53:

Only the judgment of the court is printed.

Footnote 54:

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

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

Footnote 55:

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

Footnote 56:

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

Footnote 57:

Statement abridged.

Footnote 58:

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

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

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

Footnote 59:

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

Footnote 60:

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

Footnote 61:

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

Footnote 62:

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

Footnote 63:

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

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

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

Footnote 64:

Only part of the opinion is given.

Footnote 65:

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

Footnote 66:

Statement abridged. Part of opinion omitted.

Footnote 67:

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

Footnote 68:

Compare Fenneman _v._ Holden, 75 Md. 1; Karl _v._ Juniata, 206 Pa. St. 633; Thompson _v._ Salt Lake Co., 16 Utah 281.

Footnote 69:

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

Footnote 70:

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

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

Footnote 71:

Maryland R. Co. _v._ Tucker, 115 Md. 43; Cates _v._ Hall, 171 N. C. 360; Lundy _v._ Southern Tel. Co., 90 S. C. 25 _Accord_.

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

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

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

“It is reasonable care under the existing circumstances that one person has the right to require of another; and that degree of care becomes increased with any increase of the apparent danger involved in its absence or with the increased power of control of one of the

## parties whose conduct is in question.... A common carrier of

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

Footnote 72:

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

Footnote 73:

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

Footnote 74:

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

Footnote 75:

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

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

Footnote 76:

Arguments omitted.

Footnote 77:

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

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

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

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

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

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

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

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

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

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

Footnote 78:

Statement rewritten. Only part of case is given.

Footnote 79:

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

Footnote 80:

Compare Martin _v._ Boston R. Co., 205 Mass. 16; Devine _v._ New York R. Co., 205 Mass. 416.

Footnote 81:

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

Footnote 82:

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

Footnote 83:

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

Footnote 84:

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

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

Footnote 85:

Arguments and part of opinion omitted.

Footnote 86:

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

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

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

Compare Jacobs _v._ Koehler Co., 208 N. Y. 416.

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

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

Footnote 87:

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

Footnote 88:

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

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

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

In Harrington _v._ Mayor, 125 Ga. 58, 60, Lumpkin, J., said: “The average child of its own age is not the standard by which to measure its legal diligence with exactness. ‘Such care as the capacity of the

## particular child enables it to use naturally and reasonably, is what

the law requires.’” Compare Bleckley, C. J., in Western & Atlantic R. Co. _v._ Young, 81 Ga. 397, 416, 417.

Footnote 89:

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

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

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

_Deceit._ Fitts _v._ Hall, 9 N. H. 441; Word _v._ Vance, 1 N. & McC. 197.

_Defamation._ Hodsman _v._ Grissell, Noy, 129; Drane _v._ Pawley, 8 Ky. Law Rep. 530; Fears _v._ Riley, 148 Mo. 49.

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

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

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

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

Footnote 90:

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

Footnote 91:

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

Footnote 92:

Statement, arguments, and parts of opinions omitted.

Footnote 93:

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

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

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

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

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

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

Footnote 94:

But see L. R. 6 Q. B. 760–761.

Footnote 95:

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

Footnote 96:

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

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

Where the declaration alleges negligence and sets forth the nature and

## particulars of the accident but not the particulars of the alleged

negligence, plaintiff may rely upon this doctrine, if the accident is of such a kind as to indicate that it would not have happened without negligence on the part of the defendant. James _v._ Boston R. Co., 204 Mass. 158.

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

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

Footnote 97:

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

Footnote 98:

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

Footnote 99:

“There was much discussion by counsel of the doctrine of _res ipsa loquitur_ and its relevancy to the facts of this case. The thing speaks for itself, is a principle applied by the law where under the circumstances shown the accident presumably would not have occurred in the use of a machine if due care had been exercised, or, in the case of an elevator, when in its normal operation after due inspection. The doctrine does not dispense with the requirement that the party who alleges negligence must prove the fact, but relates only to the mode of proving it. The fact of the accident furnishes merely some evidence to go to the jury, which requires the defendant ‘to go forward with his proof.’ The rule of _res ipsa loquitur_ does not relieve the plaintiff of the burden of showing negligence, nor does it raise any presumption in his favor. Whether the defendant introduces evidence or not, the plaintiff in this case will not be entitled to a verdict unless he satisfies the jury by the preponderance of the evidence that his injuries were caused by a defect in the elevator attributable to the defendant’s negligence. The law attaches no special weight, as proof, to the fact of an accident, but simply holds it to be sufficient for the consideration of the jury even in the absence of any additional evidence. Womble _v._ Grocery Co., 135 N. C. 474; 2 Labatt on Master & Servant, § 834; 4 Wigmore on Evidence, § 2509. In all other respects, the parties stand before the jury just as if there was no such rule. The judge should carefully instruct the jury as to the application of the principle, so that they will not give to the fact of the accident any greater artificial weight than the law imparts to it. Wigmore, in the section just cited, says the following considerations ought to limit the doctrine of _res ipsa loquitur_: 1. The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; 2. Both inspection and user must have been, at the time of the injury, in the control of the party charged; 3. The injurious occurrence must have happened irrespective of any voluntary

## action at the time by the party injured. He says further that the

doctrine is to some extent founded upon the fact that the chief evidence of the true cause of the injury, whether culpable or innocent, is practically accessible to the party charged and perhaps inaccessible to the party injured. What are the general limits of the doctrine and what is the true reason for its adoption, we will not now undertake to decide. It is established in the law as a rule for our guidance and must be enforced whenever applicable, and to the extent that it is applicable, to the facts of the particular case.” Walker, J., in Stewart _v._ Van Deventer Carpet Co., 138 N. C. 60, 65.

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

Footnote 100:

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

Footnote 101:

Bonham _v._ Winchester Arms Co., 179 Ill. App. 469; Prestolite Co. _v._ Skeel, 182 Ind. 593; Rice _v._ Chicago R. Co., 153 Mo. App. 35; Dalzell _v._ New York R. Co., 136 App. Div. 329 _Accord_.

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

Footnote 102:

Statement abridged.

Footnote 103:

“The maxim _res ipsa loquitur_ is simply a rule of evidence.

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

Footnote 104:

Statement abridged.

Footnote 105:

59 N. J. Law, 474.

Footnote 106:

## Actiesselskabet Ingrid _v._ Central R. Co., 216 Fed. 72; Huneke _v._

West Brighton Amusement Co., 80 App. Div. 268; De Glopper _v._ Nashville R. Co., 123 Tenn. 633 _Accord_.

Footnote 107:

Statement abridged. Part of opinion omitted.

Footnote 108:

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

Footnote 109:

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

Footnote 110:

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

Footnote 111:

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

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

Footnote 112:

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

Footnote 113:

But see Mayer _v._ Thompson, 104 Ala. 611; Carter _v._ Atlantic R. Co., 84 S. C. 456; Lough _v._ Davis, 30 Wash. 204.

Footnote 114:

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

Footnote 115:

Northern R. Co. _v._ State, 29 Md. 420; Dyche _v._ Vicksburg R. Co., 79 Miss. 361; Bresnahan _v._ Lonsdale Co., (R. I. 1900) 51 Atl. 624 _Accord_.

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

Footnote 116:

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

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

Footnote 117:

Ohio R. Co. _v._ Early, 141 Ind. 73; Raasch _v._ Elite Laundry Co., 98 Minn. 357 (_semble_); Salter _v._ Nebraska Telephone Co., 79 Neb. 373 (_semble_) _Accord_. See also Shaw _v._ Milwaukee R. Co., 103 Minn. 8.

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

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

Footnote 118:

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

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

Footnote 119:

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

Footnote 120:

This proposed code was not enacted.

Footnote 121:

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

Footnote 122:

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

Footnote 123:

Statement abridged. Arguments of counsel omitted.

Footnote 124:

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

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

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

Footnote 125:

Statement abridged. Part of opinion omitted.

Footnote 126:

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

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

Footnote 127:

Statement rewritten; part of case omitted; argument omitted.

Footnote 128:

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

Footnote 129:

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

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

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

Footnote 130:

The statement and part of the opinion are omitted.

Footnote 131:

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

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

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

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

Footnote 132:

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

Footnote 133:

Statement abridged.

Footnote 134:

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

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

Footnote 135:

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

Footnote 136:

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

Footnote 137:

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

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

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

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

Footnote 138:

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

Footnote 139:

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

Footnote 140:

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

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

Footnote 141:

Statement abridged. Arguments omitted, and parts of opinions.

Footnote 142:

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

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

Footnote 143:

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

But see Brinilson _v._ Chicago R. Co., 144 Wis. 614.

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

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

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

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

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

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

Footnote 144:

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

Footnote 145:

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

Footnote 146:

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

Footnote 147:

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

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

Footnote 148:

Statement abridged.

Footnote 149:

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

Footnote 150:

Statement and arguments omitted.

Footnote 151:

Farrant _v._ Barnes, 11 C. B. N. S. 553; 31 L. J. (C. P.) 137.

Footnote 152:

And see Bolch _v._ Smith, 7 H. & N. 736; 31 L. J. (Ex.) 201.

Footnote 153:

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

_As to child accompanying invitee_: see Butler _v._ Chicago R. Co., 155 Mo. App. 287.

_Liability to children invitees_: see Miller _v._ Peck Dry Goods Co., 104 Mo. App. 609; Houck _v._ Chicago R. Co., 116 Mo. App. 559.

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

But compare Pauckner _v._ Wakem, 231 Ill. 276.

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

_Invitee of licensee_: see Brehmer _v._ Lyman, 71 Vt. 98.

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

Footnote 154:

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

Footnote 155:

Craney _v._ Union Stockyards Co., 240 Ill. 602; Kentucky Distilleries Co. _v._ Leonard, (Ky.) 79 S. W. 281 _Accord_. But see Burns _v._ Boston R. Co., 183 Mass. 96; Pike _v._ Boston R. Co., 192 Mass. 426.

Footnote 156:

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

Footnote 157:

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

Footnote 158:

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

Footnote 159:

Moone _v._ Smith, 6 Ga. App. 649; Mastad _v._ Swedish Brethren, 83 Minn. 40; Rommel _v._ Schambacher, 120 Pa. St. 579 _Accord_.

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

Footnote 160:

Jones _v._ New York R. Co., 211 Mass. 521; De Boer _v._ Brooklyn Wharf Co., 51 App. Div. 289 _Accord_. Compare Hillman _v._ Boston R. Co., 207 Mass. 478.

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

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

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

Footnote 161:

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

Footnote 162:

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

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

Footnote 163:

That is, 155 Mass.

Footnote 164:

McClain _v._ Bank, 100 Me. 437; Moffatt _v._ Kenny, 174 Mass. 311 _Accord_.

Hanson _v._ Spokane Water Co., 58 Wash. 6 _Contra_. Compare Buckingham _v._ Fisher, 70 Ill. 121.

_Liability to one who has business with an abutting owner who has a right to use the way_: see Cavanagh _v._ Block, 192 Mass. 63.

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

Footnote 165:

The statement has been much abridged.

Footnote 166:

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

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

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

Footnote 167:

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

Footnote 168:

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

Footnote 169:

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

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

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

_Liability to volunteer salvor in case of fire_: see Kohn _v._ Lovett, 44 Ga. 251; Gibson _v._ Leonard, 143 Ill. 182.

_Liability to person who has contractual right to inspect the premises_: see Dashields _v._ Moses, 35 App. D. C. 583.

Footnote 170:

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

Footnote 171:

The statement of facts by the reporter is omitted.

Footnote 172:

The statement of facts is omitted.

Footnote 173:

Arguments omitted.

Footnote 174:

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

Footnote 175:

_Liability of abstracter to third party_ injured by mistake or omission in abstract of title: see Thomas _v._ Guarantee Title & Trust Co., 81 Ohio St. 432; Bremerton Development Co. _v._ Title Trust Co., 67 Wash. 268.

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

Footnote 176:

Part of case omitted; also arguments.

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

Footnote 177:

1 Q. B. 29, 36.

Footnote 178:

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

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

Footnote 179:

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

Footnote 180:

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

Footnote 181:

Remainder of opinion omitted.

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

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

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

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

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

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

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

Footnote 182:

“The doctrine of comparative negligence no longer exists in this state.” Wilkin, J., in City _v._ Holcomb, 205 Ill. 643, 646.

“The intrinsic difficulty of the subject of contributory negligence has led to three distinct lines of decisions. In England and a majority of the States of the Union, the negligence of the plaintiff which contributes to the injury is held to be an absolute bar to the

## action. In the States of Illinois and Georgia the doctrine of

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

Footnote 183:

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

Footnote 184:

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

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

Footnote 185:

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

Footnote 186:

Portions of opinion omitted. Argument for appellant omitted.

Footnote 187:

PLANIOL, TRAITÉ ÉLÉMENTAIRE DE DROIT CIVIL (6 ed.) II, § 899: “It frequently happens that one who suffers damage through the fault of another is not himself exempt from all fault; he has concurred in the accident and shares responsibility therefor with the other. In this case there is what we call in practice _faute commune_. This community of fault diminishes the responsibility of the principal author of damage who now only owes a partial reparation.”

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

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

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

Footnote 188:

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

Footnote 189:

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

Footnote 190:

The usual mode of citation is 1 Q. B.

Footnote 191:

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

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

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

Footnote 192:

The statement of facts and portions of the opinion are omitted.

Footnote 193:

174 U. S. 379.

Footnote 194:

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

Footnote 195:

Only a portion of the opinion is printed.

Footnote 196:

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

Footnote 197:

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

Footnote 198:

Printed papers in the case.

Footnote 199:

L. R. 9 Ex. 71.

Footnote 200:

L. R. 10 Ex. 700.

Footnote 201:

Arguments of counsel are omitted.

Footnote 202:

L. R. 9 Ex. at 72.

Footnote 203:

See also Cayzer _v._ Carron, 9 App. Cas. 873; McDermaid _v._ Edinburgh Tramways Co., 22 Sc. L. R. 13.

Footnote 204:

Only a portion of the opinion is printed.

Footnote 205:

This opinion of CARPENTER, J., was given in the Circuit Court; and was quoted by MOORE, J., in his dissenting opinion in the Supreme Court.

Footnote 206:

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

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

[An instruction as to the meaning of the word “proximately” intimates] “that there is a difference between the meaning of the word when applied to the defendant and when applied to the plaintiff. There is no such difference. Contributory negligence on the part of the plaintiff must bear the same proximate relation to the result as the

## actionable negligence of the defendant. It need not be the sole cause,

and it may contribute but slightly, but it must be a proximate cause in the same sense that the defendant’s negligence must be proximate.” WINSLOW, J., in Boyce _v._ Wilbur Lumber Co., 119 Wis. 642, 649–650.

Footnote 207:

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

Footnote 208:

Compare Rider _v._ Syracuse R. Co., 171 N. Y. 139.

Footnote 209:

The statement of facts and argument of counsel are omitted.

Footnote 210:

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

Footnote 211:

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

Footnote 212:

Statement abridged. Only part of opinion is given.

Footnote 213:

Statement omitted, also a large part of opinion.

Footnote 214:

85 N. C. 310.

Footnote 215:

Statement abridged. Part of opinion omitted.

Footnote 216:

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

Footnote 217:

See also Weitzman _v._ Nassau R. Co., 33 App. Div. 585; Green _v._ Metropolitan R. Co., 42 App. Div. 160.

Footnote 218:

Statement abridged.

Footnote 219:

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

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

An exception to the charge was overruled.

Footnote 220:

Birmingham R. Co. _v._ Brantley, 141 Ala. 614; Baltimore Traction Co. _v._ Wallace, 77 Md. 435; Lassiter _v._ Raleigh R. Co., 133 N. C. 244; Memphis R. Co. _v._ Haynes, 112 Tenn. 712 _Accord_.

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

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

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

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

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

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

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

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

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

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

Footnote 221:

Birmingham Light & Power Co. _v._ Jones, 146 Ala. 277; Indianapolis R. Co. _v._ Boettcher, 131 Ind. 82 _Accord_.

Footnote 222:

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

Footnote 223:

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

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

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

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

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

Footnote 224:

Only a portion of the opinion is printed.

Footnote 225:

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

Footnote 226:

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

In Leroy Fibre Co. _v._ Chicago R. Co., _supra_, Holmes, J., (concurring in the result) said:

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

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

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

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

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

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

Footnote 227:

Statement of case abridged. Arguments omitted.

Footnote 228:

116 U. S. 366.

Footnote 229:

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

Footnote 230:

Statement abridged. Greater part of opinion omitted.

Footnote 231:

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

See McLaughlin _v._ Pittsburgh R. Co., 252 Pa. St. 32.

Footnote 232:

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

See Atlantic R. Co. _v._ Ironmonger, 95 Va. 625.

Footnote 233:

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

_Driver known to be incompetent_, see: Cahill _v._ Cincinnati R. Co., 92 Ky. 345.

_Passenger unknown to driver_, see: Cincinnati R. Co. _v._ Wright, 54 Ohio St. 181.

Footnote 234:

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

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

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

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

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

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

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

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

_Consignor and consignee_, see McCarthy _v._ Louisville R. Co., 102 Ala. 193.

_Lessor and lessee_, see Higgins _v._ Los Angeles Gas Co., 159 Cal. 651; Contos _v._ Jamison, 81 S. C. 488.

Footnote 235:

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

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

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

Footnote 236:

Statement abridged. Arguments omitted; also portions of opinion.

Footnote 237:

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

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

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

Footnote 238:

Savannah Electric Co. _v._ Dixon, (Ga.) 89 S. E. 373; Smith _v._ Marion Bottle Co., 84 Kan. 551 _Accord_.

Footnote 239:

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

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

## action. The question remains: Will the contributory negligence of the

sole beneficiary bar the action, either where he is personally plaintiff, or where he is plaintiff in his capacity as administrator of the deceased, or where the plaintiff is a third person suing in the capacity of administrator?

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

Footnote 240:

Wymore _v._ Mahaska County, 78 Ia. 396. The material provisions of the statute involved in that case were:—

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

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

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

Section 3761. A father, or, in case of his death or imprisonment or desertion of his family, the mother, may prosecute as plaintiff an

## action for the expenses and actual loss of service resulting from the

injury or death of a minor child.

Footnote 241:

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

Footnote 242:

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

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

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

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

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

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

Footnote 243:

See Broschart _v._ Tuttle, 59 Conn. 1; Dudley _v._ Northampton, 202 Mass. 443, 449.

Footnote 244:

The arguments are omitted.

Footnote 245:

Hinckley _v._ Penobscot, 42 Me. 89; Smith _v._ Boston R. Co., 120 Mass. 490 (injury to passenger travelling on train in violation of Sunday law) _Accord_.

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

Footnote 246:

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

Footnote 247:

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

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

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

Footnote 248:

Section 3 of this statute is as follows:—

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