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 chapter three hundred and seventy-four of

the acts of eighteen hundred and seventy-three.”

Footnote 249:

Monroe _v._ Hartford R. Co., 76 Conn. 201; Tackett _v._ Taylor, 123

Ia. 149; Baker _v._ Portland, 58 Me. 199; Bourne _v._ Whitman, 209

Mass. 155; Chesapeake R. Co. _v._ Jennings, 98 Va. 70 _Accord_.

Footnote 250:

Atlantic R. Co. _v._ Weir, 63 Fla. 69; Lockridge _v._ Minneapolis R.

Co., 161 Ia. 74 _Accord_. See Lindsay _v._ Cecchi, 3 Boyce, 133; Hyde

_v._ McCreery, 145 App. Div. 729.

In Bourne _v._ Whitman, 209 Mass. 155, a duly licensed automobile was

being driven by an unlicensed person. Knowlton, C. J., said:

“It is universally recognized that the violation of a criminal statute

is evidence of negligence on the part of the violator, as to all

consequences that the statute was intended to prevent. It has been

said in a general way that such a violation is evidence of negligence

of the violator, and it has sometimes been stated that this would show

negligence that can be availed of as a ground of recovery by one who

suffers any kind of an injury from him while this illegality

continues; but it is now settled that it is not even evidence of

negligence, except in reference to matters to which the statute

relates. Davis _v._ John L. Whiting & Son Co., 201 Mass. 91, 96 and

cases cited. A criminal statute in the usual form is enacted for the

benefit of the public. It creates a duty to the public. Every member

of the public is covered by the protecting influence of the

obligation. If one suffers injury as an individual, in his person or

his property, by a neglect of this duty, he has a remedy, not because

our general criminal laws are divided in their operation, creating one

duty to the public and a separate duty to individuals; but because as

one of the public in a peculiar situation, he suffers a special

injury, different in kind from that of the public generally, from the

neglect of the public duty....

If we consider the effect of such a violation of law by a plaintiff,

upon his right to recover, the principles that have been recognized

are instructive. They were considered long ago in connection with our

Sunday law. It has been established from early times that one who is

violating a criminal law cannot recover for an injury to which his

criminality was a directly contributing cause....

The only matter which seems to be left doubtful under our decisions in

this class of cases, is what constitutes ‘illegality,’ which is

sometimes a directly contributing cause of the injury. Some cases have

been decided, which seem to imply that if there is an illegal element

entering into a plaintiff’s act or conduct, and this act or conduct

directly contributes to his injury, he cannot recover, although the

illegal element or the objectionable quality of the act had no

tendency to produce the injury, and the consequences would have been

the same under the other existing conditions, if the criminal element

had been absent. In other cases the decision seems to turn upon

whether the criminal element in the act or conduct, considered by

itself alone, operated as a direct cause to produce a result that

would not have been produced under the same conditions in other

respects, if the criminal element had been absent. This latter seems

to be the pivotal question in most cases decided in other States.

The fact that the number of punishable misdemeanors has multiplied

many times in recent years, as the relations of men in business and

society have grown complex with the increase of population, is a

reason why the violation of a criminal statute of slight importance

should not affect one’s civil rights, except when this violation,

viewed in reference to the element of criminality intended to be

punished, has had a direct effect upon his cause of action. Our

decisions seem to have been tending toward the adoption of such a

rule. Welch _v._ Wesson, 6 Gray, 505. Spofford _v._ Harlow, 3 Allen,

176. Steele _v._ Burkhardt, 104 Mass. 59. Damon _v._ Scituate, 119

Mass. 66. Hall _v._ Ripley, 119 Mass. 135. Dudley _v._ Northampton

Street Railway, 202 Mass. 443, 446. Moran _v._ Dickinson, 204 Mass.

559, 562. Chase _v._ New York Central & Hudson River Railroad, 208

Mass. 137, 157.

Under particular statutes, we are brought back to the question, what

is the legal element which is the essence of the command or

prohibition? In most cases, the effect of doing or failing to do that

which the law forbids or requires under a penalty, when considered in

reference to its relation to one’s civil rights in collateral matters,

ought to be limited pretty strictly. Take the case of driving without

sleigh bells in violation of the law of the road. R. L., c. 54, § 3.

Kidder _v._ Dunstable, 11 Gray, 342. Counter _v._ Couch, 8 Allen, 436,

437. The requirement of the law is that ‘No person shall travel on a

bridge or way with a sleigh or sled drawn by a horse, unless there are

at least three bells attached to some part of the harness.’ The wrong

to be prevented is the failure to have bells while travelling in this

way. The travelling in other respects is unobjectionable. The question

arises whether the act should be deemed illegal as a whole, in

reference to the rule that the courts will not aid one to obtain the

fruits of his disobedience of law, or whether in this aspect its

different qualities may be considered separately. It is possible to

decide this question either way, but we think it is more consistent

with justice and with the course of decision elsewhere, to hold that,

in reference to the law of negligence and the rule as to rejection of

causes of action that are founded on illegality, an act may be

considered in its different aspects in its relation to the cause of

action, and if only that part of it which is innocent affects the

cause of action, the existence of an illegal element is immaterial. We

do not think, under this statute, that one who drives in a sleigh

without bells should be treated as a trespasser on the highway,

although he is punishable criminally for the failure to have the bells

attached to the harness, and is liable in damages to any member of the

public who suffers a special injury by reason of this failure.

Consider the St. 1909, c. 514, § 74, which forbids, under a penalty,

the regular operation of any elevator by a person under the age of

sixteen years, and the regular operation of any rapidly running

elevator by a person under the age of eighteen years. If a person

under the prescribed age, while employed to operate an elevator, is

injured through the negligence of the owner, in leaving it in an

unsafe condition, shall his violation of the statute by entering this

service before reaching the prescribed age, be treated as criminality,

entering into every one of his acts in moving the elevator, so as to

prevent his recovery for an injury from the joint effect of his

employer’s negligence and his own application of the power to raise or

lower the elevator? We think it better to hold, if his age and the

degree of his competency, which might depend in part upon his age, had

no causal connection with the injury, that his criminality was not a

direct cause of the injury. In other words, that the punishable

element in the act is only disobedience as to age, and although his

act in applying the power to the elevator which brought him in contact

with the defect, is punishable, and in a sense illegal because of the

existence of that element, in determining the relation of his conduct

to the cause of action, to see whether the court will aid him in the

prosecution of it, we ought to limit the illegality to that part of

his conduct towards which the statute is particularly directed. We are

to consider the specific thing at which the statute is aimed, and the

immediate effect that it was intended directly and proximately to

accomplish by its command or prohibition....

Take the provision in St. 1903, c. 473, § 5, that ‘No person shall

operate an automobile or motor cycle for hire, unless specially

licensed by the commission so to do,’ and the earlier provision in the

same section that no person shall ‘operate an automobile or motor

cycle upon any public highway or private way laid out under authority

of statute unless licensed so to do under the provisions of this act.’

The operating of the automobile in itself is unobjectionable. The

illegal element in the act is the failure to have a license. The

purpose of the requirement of a license is to secure competency in the

operator. If in any case the failure to have a license, looking to

those conditions that ordinarily accompany the failure to have it, is

a cause contributing directly to an injury, a violator of the law

would be legally responsible to another person injured by the failure;

or, if he is injured himself, would be precluded from recovery against

another person who negligently contributed to the injury. But we are

of opinion that his failure in that respect is only evidence of

negligence in reference to his fitness to operate a car, and to his

skill in the actual management of it, unless in the case of the

plaintiff, it is shown to be a contributing cause to the injury sued

for, in which case it is a bar to recovery. We think that the

operation of a car without a license, while it is a punishable act,

does not render the operator a trespasser on the highway, but that the

illegal element in the act is only the failure to have a license while

operating it, so that if the operation and movement contributed to the

accident with which the want of a license had no connection, except as

a mere condition, they would not preclude the operator as a plaintiff

from recovery. If the illegal quality of the act had no tendency to

cause the accident, the fact that the act is punishable because of the

illegality, ought not to preclude one from recovery for harmful

results to which, without negligence, the innocent features of the act

alone contributed.

The other part of this statute, relative to the licensing of

automobiles, has been construed differently. In Dudley _v._

Northampton Street Railway, 202 Mass. 443, because of the peculiar

provisions of the statute and the dangers and evils that it was

intended to prevent, it was decided, after much consideration, that

the having of such a machine in operation on a street, without a

license, was the very essence of the illegality, and that the

illegality was inseparable from the movement of the automobile upon

the street at any time, for a single foot; that in such movement the

machine was an outlaw, and any person on the street as an occupant of

the automobile, participating in the movement of it, was for the time

being a trespasser. Some of us were disinclined to lay down the law so

broadly, and the opinion of the court was not unanimous; but the

doctrine has been repeatedly reaffirmed and is now the established law

of the Commonwealth. Feeley _v._ Melrose, 205 Mass. 329. Chase _v._

New York Central & Hudson River Railroad, 208 Mass. 137, 158. The

difference between this provision of the statute and that involved in

the present case is in part one of form, but in connection with the

form, it is still more the seeming purpose and intent of the

Legislature as to permitting such machines upon the public ways

without adequate means of identifying them and ascertaining their

owner, together with the requirement that the machine itself, as a

thing of power, shall have its own registration and legalization, the

evidence of which it shall always carry with it....

We are of opinion that the law of these last cases should not be

extended to the provision of the statute requiring every operator to

have a personal license to operate the car. The jury should have been

instructed that the defendant’s failure to have a license was only

evidence of his negligence as to the management of the car.”

See also Holland _v._ Boston, 213 Mass. 560; Holden _v._ McGillicuddy,

215 Mass. 563; Conroy _v._ Mather, 217 Mass. 91.

In Taylor _v._ Stewart, 172 N. C. 203, Brown, J., (for the court)

said:

“The plaintiff sues to recover for the death of his child, who was run

over and killed by an automobile, belonging to the defendant J. W.

Stewart. At the time the car was being operated by James Stewart, the

son of the said J. W. Stewart, a lad of 13 years of age. A colored

chauffeur, who had been sent out with the car by the owner, was

sitting beside the lad.

His honor charged the jury that under the laws of North Carolina it

was a misdemeanor for a person under the age of 16 to drive an

automobile upon any highway or public street, and that it is a

circumstance from which the jury may infer negligence, and that it

does not necessarily follow that the jury shall conclude it was

negligence, but that it is a circumstance to go to the jury. In this

his honor erred. He should have instructed the jury that it is

negligence _per se_ for the defendant James Stewart to have driven the

machine in violation of the statute law of the state. Zageir _v._

Southern Express Co., 89 S. E. 44; Paul _v._ Railroad, 170 N. C. 231,

87 S. E. 66, L. R. A. 1916B, 1079; Ledbetter _v._ English, 166 N. C.

125, 81 S. E. 1066.”

See Davis, The Plaintiff’s Illegal Act as a Defense in Actions of

Tort, 18 Harvard Law Rev. 505; Thayer, Public Wrong and Private

Action, 27 Harvard Law Rev. 317.

Footnote 251:

Part of case omitted; also arguments of counsel.

Footnote 252:

Williams _v._ New Albany R. Co., 5 Ind. 111; Vandalia R. _v._ Duling,

60 Ind. App. 332; Union R. Co. _v._ Rollins, 5 Kan. 167 (as to

legislation, see Darling _v._ Rodgers, 7 Kan. 592; Missouri R. Co.

_v._ Olden, 72 Kan. 110); Crawford _v._ Hughes, 3 J. J. Marsh. 433;

Little _v._ Lathrop, 5 Me. 356; Richardson _v._ Milburn, 11 Md. 340;

Eames _v._ Salem R. Co., 98 Mass. 560; Collins _v._ Lundquist, 154

Mich. 658; Vandegrift _v._ Rediker, 22 N. J. Law, 185; Munger _v._

Tonawanda R. Co., 4 N. Y. 349; Gregg _v._ Gregg, 55 Pa. St. 227; Hurd

_v._ Rutland R. Co., 25 Vt. 116; Metropolitan Ins. Co. _v._ Clark, 145

Wis. 181 _Accord_.

As between adjoining owners, in absence of statutory duty as to

division fence, see Bissell _v._ Southworth, 1 Root, 269; McNeer _v._

Boone, 52 Ill. App. 181; Myers _v._ Dodd, 9 Ind. 290; Stephenson _v._

Elliott, 2 Ind. App. 233; De Mers _v._ Rohan, 126 Ia. 488; Markin _v._

Priddy, 40 Kan. 684; Sturtevant _v._ Merrill, 33 Me. 62; Gillespie

_v._ Hendren, 98 Mo. App. 622; Tewksbury _v._ Bucklin, 7 N. H. 518;

Deyo _v._ Stewart, 4 Denio, 101; Angell _v._ Hill, 18 N. Y. Supp. 824;

Kobayashi _v._ Strangeway, 64 Wash. 36.

_As to liability of the owner for unauthorized entry of a dog_ on

another’s lands, see Brown _v._ Giles, 1 Carr. & P. 118; Read _v._

Edwards, 17 C. B. N. S. 245; Doyle _v._ Vance, 6 Vict. L. R. (Law) 87.

_Trespass on unenclosed land by chickens_, see Evans _v._ McLalin, 189

Mo. App. 310.

Footnote 253:

Morgan _v._ Hudnell, 52 Ohio St. 552 _Accord_.

Footnote 254:

Arguments omitted.

Footnote 255:

Hartford _v._ Brady, 114 Mass. 466; Wood _v._ Snider, 187 N. Y. 28;

Erdman _v._ Gottshall, 9 Pa. Super. Ct. 295; Metropolitan Ins. Co.

_v._ Clark, 145 Wis. 181 _Accord_.

Cattle, while being driven on the highway, enter on the unfenced land

of A adjoining the highway, and pass thence on to the unfenced land of

B, adjoining the land of A, but not adjoining the highway. B has an

action against the owner of the cattle. Wood _v._ Snider, 187 N. Y.

28. See also note in 12 L. R. A. N. S. 912.

Footnote 256:

As to the effect of statutes requiring lands to be fenced, see

Northern R. Co. _v._ Cunningham, 89 Fed. 594; Comerford _v._ Dupuy, 17

Cal. 308 (as to later legislation see Hahn _v._ Garratt, 69 Cal. 146;

Fisch _v._ Nice, 12 Cal. App. 60); Nuckolls _v._ Gaut, 12 Col. 361;

Wright _v._ Wright, 21 Conn. 329; Frazier _v._ Nortinus, 34 Ia. 82

(but no application to cultivated land—Hallock _v._ Hughes, 42 Ia.

516); Louisville R. Co. _v._ Simmons, 85 Ky. 151; Gorman _v._ Pacific

R. Co., 26 Mo. 441 (as to later legislation, see O’Riley _v._ Diss, 41

Mo. App. 184); Smith _v._ Williams, 2 Mont. 195; Randall _v._ Gross,

67 Neb. 255 (no application to cultivated lands); Jones _v._

Witherspoon, 52 N. C. 555; Kerwhaker _v._ Cleveland R. Co., 3 Ohio St.

172; Walker _v._ Bloomingcamp, 34 Or. 391; Gregg _v._ Gregg, 55 Pa.

St. 227 (as to later legislation see Thompson _v._ Kyler, 9 Pa. Co.

Ct. R. 205); Davis _v._ Davis, 70 Tex. 123; Poindexter _v._ May, 98

Va. 143; Walls _v._ Cunningham, 123 Wis. 346.

As to effect of statutes providing for division fences, see D’Arcy

_v._ Miller, 86 Ill. 102; Duffees _v._ Judd, 48 Ia. 256; Wills _v._

Walters, 5 Bush, 351; Gooch _v._ Stephenson, 13 Me. 371; Shepherd _v._

Hees, 12 Johns. 433; Barber _v._ Mensch, 157 Pa. St. 390; Tower _v._

Providence R. Co., 2 R. I. 404.

Such statutes apply only as between adjoining owners: Aylesworth _v._

Herrington, 17 Mich. 417; Wilder _v._ Wilder, 38 Vt. 678; and as to

cattle lawfully on the adjoining land: Lord _v._ Wormwood, 29 Me. 282;

Vandegrift _v._ Rediker, 22 N. J. Law, 185; Melody _v._ Reab, 4 Mass.

471; Lawrence _v._ Combs, 37 N. H. 331.

Footnote 257:

Arguments and portions of the opinion omitted.

Footnote 258:

Buford _v._ Houtz, 133 U. S. 320; Nashville R. Co. _v._ Peacock, 25

Ala. 229 (as to later legislation, see Phillips _v._ Bynum, 145 Ala.

549); Little Rock R. Co. _v._ Finley, 37 Ark. 562; Morris _v._ Fraker,

5 Col. 425; Studwell _v._ Ritch, 14 Conn. 292; Sprague _v._ Fremont R.

Co., 6 Dak. 86; Savannah R. Co. _v._ Geiger, 21 Fla. 669; Macon R. Co.

_v._ Lester, 30 Ga. 911 (but see later legislation, Puckett _v._

Young, 112 Ga. 578); Seeley _v._ Peters, 5 Gilm. 130 (but see Ill.

Rev. St. c. 8, § 1); Bulpit _v._ Mathews, 145 Ill. 345; Vicksburgh R.

Co. _v._ Patton, 31 Miss. 156; Gorman _v._ Pacific R. Co., 26 Mo. 441

(but see later legislation, Gumm _v._ Jones, 115 Mo. App. 597);

Delaney _v._ Errickson, 10 Neb. 492; Laws _v._ North Carolina R. Co.,

52 N. C. 468 (but see later legislation, State _v._ Mathis, 149 N. C.

546); Cleveland R. Co. _v._ Elliott, 4 Ohio St. 474 (but see later

legislation, Marsh _v._ Koons, 78 Ohio St. 68); Murray _v._ South

Carolina R. Co., 10 Rich. Law, 227; Hardman _v._ King, 14 Wyo. 503

_Accord_.

_Turning or driving cattle on another’s uninclosed, unimproved lands_,

where the common law is inapplicable or is abrogated by legislation:

Lazarus _v._ Phelps, 152 U. S. 81; Bell _v._ Gonzales, 35 Col. 138;

Bedden _v._ Clark, 76 Ill. 338; Dexter _v._ Heaghney, 47 Ill. App.

205; Harrison _v._ Adamson, 76 Ia. 337; Union R. Co. _v._ Rollins, 5

Kan. 167; Powers _v._ Kindt, 13 Kan. 74; Monroe _v._ Cannon, 24 Mont.

316; Musselshell Cattle Co. _v._ Woolfolk, 34 Mont. 126; Herrin _v._

Sieben, 46 Mont. 226; Delaney _v._ Errickson, 11 Neb. 533; Addington

_v._ Canfield, 11 Okl. 204; Thomas _v._ Blythe, 44 Utah, 1; Cosgriff

_v._ Miller, 10 Wyo. 190; Martin _v._ Platte Valley Sheep Co., 12 Wyo.

432; Healey _v._ Smith, 14 Wyo. 263. Compare Avery _v._ Maxwell, 4 N.

H. 36.

Compare reasons given for the inapplicability of the common-law rule

to Colorado. BECK, J., in Morris _v._ Fraker, 5 Col. 425, 428, 429.

Footnote 259:

Arguments omitted.

Footnote 260:

See Herold _v._ Meyers, 20 Ia. 378; Williams _v._ Michigan R. Co., 2

Mich. 259; Christy _v._ Hughes, 24 Mo. App. 275; Peek _v._ Western

Tel. Co., 159 Mo. App. 148; Crandall _v._ Eldridge, 46 Hun, 411.

_Whether there is a right of pasturage on uninclosed lands_, where the

common law rule is not in force, see Union R. Co. _v._ Rollins, 5 Kan.

167; Caulkins _v._ Mathews, 5 Kan. 191; Knight _v._ Abert, 6 Pa. St.

472.

Footnote 261:

The arguments are omitted.

Footnote 262:

After stating that “if a man have a beast, as a bull, cow, horse, or

dog, used to hurt people, if the owner know not his quality, he is not

punishable, &c.,” Hale adds (citing authorities) that “these things

seem to be agreeable to law.

“1. If the owner have notice of the quality of his beast, and it doth

anybody hurt, he is chargeable with an action for it.

“2. Though he have no particular notice that he did any such thing

before, yet if it be a beast that is _ferae naturae_, as a lion, a

bear, a wolf, yea an ape or monkey, if he get loose and do harm to any

person, the owner is liable to an action for the damage, and so I knew

it adjudged in Andrew Baker’s Case, whose child was bit by a monkey

that broke its chain and got loose.

“3. And therefore in case of such a wild beast, or in case of a bull

or cow, that doth damage, where the owner knows of it, he must at his

peril keep him up safe from doing hurt, for though he use his

diligence to keep him up, if he escape and do harm, the owner is

liable to answer damages.” 1 Hale’s P. C. 430, Part I, c.

33.—Reporter’s Note.

Footnote 263:

Jackson _v._ Smithson, 15 M. & W. 563; Card _v._ Case, 5 C. B. 622;

Strouse _v._ Leipf, 101 Ala. 433; Holt _v._ Leslie, 116 Ark. 433;

Laverone _v._ Mangianti, 41 Cal. 138; Gooding _v._ Chutes Co., 155

Cal. 620; Woolf _v._ Chalker, 31 Conn. 121; Kightlinger _v._ Egan, 75

Ill. 141; Gordon _v._ Kaufman, 44 Ind. App. 603; Holt _v._ Myers, 47

Ind. App. 118; Kennett _v._ Engle, 105 Mich. 693; Hall _v._ Huber, 61

Mo. App. 384; O’Neill _v._ Blase, 94 Mo. App. 648; Muller _v._

McKesson, 73 N. Y. 195; People _v._ Shields, 142 App. Div. 194; Tubbs

_v._ Shears, 55 Okl. 610; Mann _v._ Weiand, 81* Pa. St. 243; McCaskill

_v._ Elliot, 5 Strob. 196; Missio _v._ Williams, 129 Tenn. 504; Harris

_v._ Carstens Packing Co., 43 Wash. 647; Gunderson _v._ Bieren, 80

Wash. 459 _Accord_.

Footnote 264:

See Mason _v._ Keeling, 12 Mod. 332.

Footnote 265:

Besozzi _v._ Harris, 1 F. & F. 92; Texas R. Co. _v._ Juneman, 71 Fed.

939 (wild steer); Jackson _v._ Baker, 24 App. D. C. 100; Graham _v._

Payne, 122 Ind. 403 (ram); Marble _v._ Ross, 124 Mass. 44 (bull);

Marquet _v._ La Duke, 96 Mich. 596; Phillips _v._ Garner, 106 Miss.

828; Manger _v._ Shipman, 30 Neb. 352; Van Leuven _v._ Lyke, 1 N. Y.

515; Mahoney _v._ Dwyer, 84 Hun, 348; Malloy _v._ Starin, 113 App.

Div. 852 (reversed on other grounds, 191 N. Y. 21); Stamp _v._

Eighty-sixth St. Amusement Co., 95 Misc. 599 _Accord_.

Compare Hayes _v._ Miller, 150 Ala. 621, as to a wolf domesticated to

such an extent that the owner believed it harmless.

_As to the liability of the owner of bees_, see O’Gorman _v._

O’Gorman, [1903] 2 I. R. 573; Parsons _v._ Manser, 119 Ia. 88; Petey

Mfg. Co. _v._ Dryden, 5 Pennewill, 166; Lucas _v._ Pettit, 12 Ont.

Law, 448; Notes in 97 Am. State Rep. 287, and 62 L. R. A. 132. Compare

Earl _v._ Van Alstine, 8 Barb. 630; Olmsted _v._ Rich, 25 N. Y. St.

Rep. 271; Arkadelphia _v._ Clark, 52 Ark. 23.

Footnote 266:

“Certain animals _ferae naturae_ may doubtless be domesticated to such

an extent as to be classed, in respect to the liability of the owner

for injuries they commit, with the class known as tame or domestic

animals; but inasmuch as they are liable to relapse into their wild

habits and to become mischievous, the rule is that if they do so, and

the owner becomes notified of their vicious habit, they are included

in the same rule as if they had never been domesticated, the gist of

the action in such a case, as in the case of untamed wild animals,

being not merely the negligent keeping of the animal, but the keeping

of the same with knowledge of the vicious and mischievous propensity

of the animal.” Clifford, J., in Spring Company _v._ Edgar, 99 U. S.

645, 653.

Footnote 267:

See Bennet _v._ Bostock, 13 Scottish Sheriff Court Reports, 50; in the

same direction with Scribner _v._ Kelley, 38 Barb. 14, cited in the

foregoing opinion.

Footnote 268:

Kelley _v._ Killourey, 81 Conn. 320; Keightlinger _v._ Egan, 65 Ill.

235; Feldman _v._ Sellig, 110 Ill. App. 130; Donahue _v._ Scott

Transfer Co., 141 Ill. App. 174; Bush _v._ Wathen, 104 Ky. 548; Quimby

_v._ Woodbury, 63 N. H. 370; Badali _v._ Smith, (Tex. Civ. App.) 37 S.

W. 642 _Accord_.

“There are expressions in some of the cases indicating that the

liability of the owner is not affected by the negligence of the person

injured.... If a person with full knowledge of the evil propensities

of an animal wantonly excites him or voluntarily and unnecessarily

puts himself in the way of such an animal, he would be adjudged to

have brought the injury upon himself, and ought not to be entitled to

recover. In such a case it cannot be said, in a legal sense, that the

keeping of the animal, which is the _gravamen_ of the offence,

produced the injury.... But as the owner is held to a rigorous rule of

liability on account of the danger to human life and limb, by

harboring and keeping such animals, it follows that he ought not to be

relieved from it by slight negligence or want of ordinary care [on the

part of the plaintiff].... As negligence, in the ordinary sense, is

not the ground of liability, so contributory negligence, in its

ordinary meaning, is not a defence. These terms are not used in a

strictly legal sense in this class of actions, but for convenience ...

I think ... that the rule of liability before indicated is a

reasonable one, and that the owner cannot be relieved from it by any

act of the person injured, unless it be one from which it can be

affirmed that he caused the injury himself, with a full knowledge of

its probable consequences.” _Church, C. J._, in Muller _v._ McKesson,

73 N. Y. 195, 201, 202, 204.

So Woolf _v._ Chalker, 31 Conn. 121; Vredenberg _v._ Behan, 33 La.

Ann. 627; Fake _v._ Addicks, 45 Minn. 37; Malloy _v._ Starin, 113 App.

Div. 852.

_Negligence of the person injured_, see Graham _v._ Walsh, 14 Ga. App.

287; Buckley _v._ Gee, 55 Ill. App. 388; Milne _v._ Walker, 59 Ia.

186; Carpenter _v._ Latta, 29 Kan. 591; Tolin _v._ Terrell, 133 Ky.

210; Garland _v._ Hewes, 101 Me. 549; Twigg _v._ Ryland, 62 Md. 380;

Spellman _v._ Dyer, 186 Mass. 176; Ryan _v._ Marren, 216 Mass. 556;

Warrick _v._ Farley, 95 Neb. 565; Earhart _v._ Youngblood, 27 Pa. St.

331.

Footnote 269:

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

Footnote 270:

_Sed quaere_: for in S. C. 1 Ld. Ray. 608, it is said that the case

was adjourned, and that afterwards the parties agreed, and therefore

no judgment was given.—Reporter’s Note.

As to the requirement of _scienter_ in case of injury by domestic

animals, Shaw _v._ Craft, 37 Fed. 317; Kitchens _v._ Elliott, 114 Ala.

290; Finney _v._ Curtis, 78 Cal. 498; Warner _v._ Chamberlain, 7

Houst. 18; Reed _v._ Southern Express Co., 95 Ga. 108; Domm _v._

Hollenbeck, 259 Ill. 382; Indianapolis Abattoir Co. _v._ Bailey, 54

Ind. App. 370; Trumble _v._ Happy, 114 Ia. 624; Ballou _v._ Humphrey,

8 Kan. 219; Murray _v._ Young, 12 Bush. 337; Goode _v._ Martin, 57 Md.

606; Dix _v._ Somerset Coal Co., 217 Mass. 146; Durrell _v._ Johnson,

31 Neb. 796; Smith _v._ Donohue, 49 N. J. Law, 548; Vrooman _v._

Lawyer, 13 Johns. 339; Dufer _v._ Cully, 3 Or. 377; Robinson _v._

Marino, 3 Wash. 434; Johnston _v._ Mack Mfg. Co., 65 W. Va. 544;

Kertschacke _v._ Ludwig, 28 Wis. 430 _Accord_.

_Liability for injury to trespassers in case of scienter_: Woolf _v._

Chalker, 31 Conn. 121; Conway _v._ Grant, 88 Ga. 40; Engebretson _v._

Bremer, 128 Minn. 232; Loomis _v._ Terry, 17 Wend. 496; Pierret _v._

Moller, 3 E. D. Smith, 574; Sherfey _v._ Bartley, 4 Sneed, 58.

_Liability where dog runs at large unmuzzled in violation of

ordinance_: Buchanan _v._ Stout, 139 App. Div. 204.

_Where vicious dog kills trespassing dog_: Wiley _v._ Slater. 22 Barb.

506.

_What constitutes knowledge_, see: Shaw _v._ Craft, 37 Fed. 317;

Barclay _v._ Hartman, 2 Marv. 351; Keightlinger _v._ Egan, 65 Ill.

235; Domm _v._ Hollenbeck, 259 Ill. 382; Kolb _v._ Klages, 27 Ill.

App. 531; Cameron _v._ Bryan, 89 Ia. 214; Holt _v._ Myers, 47 Ind.

App. 118; Murray _v._ Young, 12 Bush, 337; Twigg _v._ Ryland, 62 Md.

380; Knowles _v._ Mulder, 74 Mich. 202; Slater _v._ Sorge, 166 Mich.

173; Rowe _v._ Ehrmanntraut, 92 Minn. 17; Reynolds _v._ Hussey, 64 N.

H. 64; Emmons _v._ Stevane, 73 N. J. Law, 349, 77 N. J. Law, 570;

Rider _v._ White, 65 N. Y. 54; Brice _v._ Bauer, 108 N. Y. 428; Martin

_v._ Borden, 123 App. Div. 66; McGarry _v._ New York R. Co., 60 N. Y.

Sup. Ct. 367; Hayes _v._ Smith, 62 Ohio St. 161; Holden _v._ Shattuck,

34 Vt. 336.

_Knowledge of single vicious act_: Eastman _v._ Scott, 182 Mass. 192;

Kittredge _v._ Elliott, 16 N. H. 77; Keenan _v._ Gutta Percha Mfg.

Co., 46 Hun, 544; Cockerham _v._ Nixon, 11 Ired. 269. Compare: Linck

_v._ Scheffel, 32 Ill. App. 17; Cooper _v._ Cashman, 190 Mass. 75;

Buckley _v._ Leonard, 4 Denio, 500.

Statutes making owners or keepers of dogs liable irrespective of

_scienter_ or of negligence in keeping are not uncommon, but vary

greatly in detail.

Footnote 271:

Worthen _v._ Love, 60 Vt. 285 _Accord_. Baker _v._ Snell, [1908] 2 K.

B. 352, 825; Laverone _v._ Mangianti, 41 Cal. 138; Muller _v._

McKesson, 73 N. Y. 195; Dockerty _v._ Hudson, 125 Ind. 102 _Contra_.

Compare: The Lord Derby, 17 Fed. 265; Melsheimer _v._ Sullivan, 1 Col.

App. 22; Woodbridge _v._ Marks, 17 App. Div. 139; Lloyd _v._ Bowen,

170 N. C. 216; Hayes _v._ Smith, 62 Ohio St. 161; Fallon _v._ O’Brien,

12 R. I. 518.

See also Vredenberg _v._ Behan, 33 La. Ann. 627 (bear teased by third

person broke loose and injured plaintiff); Kinmouth _v._ McDougall, 19

N. Y. Supp. 771 (ram teased by children injured plaintiff).

See Bevan, The Responsibility at Common Law for the Keeping of

Animals, 22 Harvard Law Rev. 465.

Footnote 272:

Compare Merritt _v._ Matchett, 135 Mo. App. 176.

Footnote 273:

Hadwell _v._ Righton, [1907] 2 K. B. 345; Higgins _v._ Searle, 25

Times L. R. 301; Klenberg _v._ Russell, 125 Ind. 531; Dix _v._

Somerset Coal Co., 217 Mass. 146; Shipley _v._ Colclough, 81 Mich.

624; Smith _v._ Donahue, 49 N. J. Law, 548; Meegan _v._ McKay, 1 Okl.

59 _Accord_. But see Barnes _v._ Chapin, 4 All. 444.

Footnote 274:

Jewett _v._ Gage, 55 Me. 538 (hog) _Accord_.

Compare COULTER, J., in Goodman _v._ Gay, 15 Pa. St. 188, 193, 194;

Corcoran _v._ Kelly, 61 Misc. 323.

_A fortiori_ if one turns loose a vicious animal: McGuire _v._

Ringrose, 41 La. Ann. 1029.

_Injuries by animals running at large contrary to statute_, see:

Williams _v._ Brennan, 213 Mass. 28; Low _v._ Barnes, 30 Okl. 15;

Palmer _v._ Saccocia, 33 R. I. 476.

Footnote 275:

In the argument for defendant the declaration is set out as follows:—

“In a plea of the case for that the said plaintiff, on the 14th day of

September, 1855, was possessed of a valuable horse, of the value of

$125.00, which was peaceably and of right depasturing in his own

close, and the defendant was possessed of another horse, vicious and

unruly, which was running at large where of right it ought not to be,

and being so unlawfully at large, broke into the plaintiff’s close, at

the time aforesaid, and viciously and wantonly kicked, reared upon,

and injured the plaintiff’s horse, so that his death was caused

thereby, which vicious habits and propensities were well known to the

defendant at the time aforesaid. To the damage, &c.”

Footnote 276:

The arguments are omitted.

Footnote 277:

Angus _v._ Radin, 2 South. (N. J.) 815 _Accord_. The same result has

often been reached in an action of trespass _quare clausum_ in which

the injury by the trespassing animal is set up in aggravation. Lee

_v._ Riley, 17 C. B. N. S. 722; Theyer _v._ Purnell, [1918] 2 K. B.

333; Van Leuven _v._ Lyke, 1 N. Y. 515; Dolph _v._ Ferris, 7 Watts &

Sergt. 367; Chunot _v._ Larson, 43 Wis. 536.

But see McDonald _v._ Jodrey, 8 Pa. Co. Ct. R. 142 (cat went on

plaintiff’s premises and killed canary).

Footnote 278:

Statement and arguments omitted.

Footnote 279:

17 C. B. N. S. 260.

Footnote 280:

13 C. B. N. S. 430.

Footnote 281:

18 C. B. N. S. 732.

Footnote 282:

L. R. 10 C. P. 10.

Footnote 283:

McClain _v._ Lewiston Driving Ass’n, 17 Idaho, 63; Green _v._ Doyle,

21 Ill. App. 205; Chunot _v._ Larson, 43 Wis. 536 _Accord_.

Buck _v._ Moore, 35 Hun, 338 (defendant’s trespassing dog killed

plaintiff’s dog); Van Etten _v._ Noyes, 128 App. Div. 406 _Contra_.

Footnote 284:

Statement condensed. Arguments and portions of opinions omitted.

Footnote 285:

But compare Bischoff _v._ Cheney, 89 Conn. 1 (trespassing cat).

In Pollock on Torts, 6th ed., 479, it is said that the owner of cattle

and other live stock straying on the land of others is “liable only

for natural and probable consequences, not for an unexpected event,

such as a horse not previously known to be vicious kicking a human

being.” In 1 Beven on Negligence, 2d ed., 637, it is said, that if

animals are trespassing and do injury not in accordance with the

ordinary instinct of the animals, “the owner is not liable for the

injury apart from the trespass (though he may be for the trespass),

unless he knows of the particular vice which caused the injury.”

See FISK, J., in Peterson _v._ Conlan, 18 N. D. 205, 212.

Footnote 286:

Statement abridged. Arguments in all the courts omitted; also opinions

in Court of Exchequer.

Footnote 287:

“It is not every use to which the land is put that brings into play

that principle [Rylands _v._ Fletcher]. It must be some special use

bringing with it increased danger to others, and must not merely be

the ordinary use of the land or such a use as is proper for the

general benefit of the community.” Lord Moulton in Rickards _v._

Lothian, [1913] A. C. 263, 280.

“This was a case of the escape of water from lavatory pipes. It would

appear, therefore, that the construction of distributing water-pipes

in a building is an ordinary and natural use of land, but that the

construction of the water-mains or reservoirs from which the water is

obtained is not so. Such unreal and impracticable distinctions are not

creditable to the development of English law.” Salmond, Torts (4 ed.)

§ 61, n. 13.

See the remarks of Doe, C. J., in Brown _v._ Collins, _infra_, p. 482.

“This rule is rightly applicable only to such unusual and

extraordinary uses of property in reference to the benefits to be

derived from the use and the dangers or losses to which others are

exposed, as should not be permitted except at the sole risk of the

user. The standard of duty established by the courts in these cases is

that every owner shall refrain from these unwarrantable and extremely

dangerous uses of property unless he provides safeguards whose

perfection he guarantees.... The principle applicable to the erection

of common buildings whose fall might do damage to persons or property

on the adjacent premises holds owners to a less strict duty. This

principle is that where a certain lawful use of property will bring to

pass wrongful consequences from the condition in which the property is

put, if these are not guarded against, an owner who makes such a use

is bound at his peril to see that proper care is taken in every

particular to prevent the wrong.... The duty which the law imposes

upon an owner of real estate in such a case, is to make the conditions

safe so far as it can be done by the exercise of ordinary care on the

part of all those engaged in the work. He is responsible for the

negligence of independent contractors as well as for that of his

servants. This rule is applicable to every one who builds an ordinary

wall which is liable to do serious injury by falling outside of his

own premises.... The uses of property governed by this rule are those

that bring new conditions which involve risks to the persons or

property of others, but which are ordinary and usual and in a sense

natural, as incident to the ownership of the land. The rule first

referred to applies to unusual and extraordinary uses which are so

fraught with peril to others that the owner should not be permitted to

adopt them for his own purposes without absolutely protecting his

neighbors from injury or loss by reason of the use.” Knowlton, J., in

Ainsworth _v._ Lakin, 180 Mass. 397, 399–401.

Footnote 288:

Eastern Tel. Co. _v._ Capetown Tramways Cos., [1902] A. C. 381;

Midwood _v._ Manchester Corporation, [1905] 2 K. B. 597; Charing Cross

Co. _v._ London Hydraulic Power Co., [1913] 3 K. B. 442, [1914] 3 K.

B. 772; Brennan Construction Co. _v._ Cumberland, 29 App. D. C. 554

(crude petroleum in tank); Shipley _v._ Associates, 106 Mass. 194;

Cahill _v._ Eastman, 18 Minn. 324; Wiltse _v._ Red Wing, 99 Minn. 255

(reservoir); French _v._ Carter Creek Mfg. Co., 173 Mo. App. 220

(stored nitroglycerine); Defiance Water Co. _v._ Olinger, 54 Ohio St.

532; Bradford Co. _v._ St. Mary’s Co., 60 Ohio St. 560 (stored

nitroglycerine); Langabaugh _v._ Anderson, 68 Ohio St. 131 (crude

petroleum in tank); Texas R. Co. _v._ Frazer (Tex. Civ. App.) 182 S.

W. 1161 (dam); Weaver Mercantile Co. _v._ Thurmond, 68 W. Va. 530

_Accord_. See Wing _v._ London General Omnibus Co., [1909] 2 K. B.

652.

“In every case of the kind which has been reported since Rylands _v._

Fletcher, that is, during the last 25 years, there has been a manifest

inclination to discover something in the facts which took the case out

of the rule. According to the English judicial system which has gone

round the world with the English language and English or Anglicized

institutions, the decisions of superior courts are not merely

instructive and worthy of regard, but of binding authority in

subsequent cases of the like sort. But there are some authorities

which are followed and developed in the spirit, which become the

starting-point of new chapters of the law; there are others that are

followed only in the letter, and become slowly but surely choked and

crippled by exceptions. This again, is independent of the

considerations of local fitness which must always have weight when

precedents are cited from a country remote both in place and in

manners.” Pollock, Law of Fraud in British India, 53–54 (1894).

“In August, 1908, Count Z. sent one of his dirigibles from Mainz to

Friederickshafen. Some motor trouble happened, and the ship was landed

in a field. Thousands of people rushed to the place, so ropes were run

around it, and soldiers were ordered on guard. The ship was anchored,

and in addition held by forty men with ropes at the stem, and by

thirty at the stern. In the afternoon a sudden thunderstorm came up,

struck the dirigible, tore it loose and sent it adrift for about a

mile, when it caught fire and was destroyed.

Spectators had been around all the time, and were standing outside the

ropes in rows several deep. Some unfortunate person standing in the

outer row near the rear gondola, was caught by the ship’s anchor,

dragged into the air and carried for some distance; in the fall, one

of his legs sustained such injuries that it had to be amputated.

He brought suit for damages, and was nonsuited; appealed; same result.

Finally, he appealed to the Reichsgericht. It refused to interfere,

for the following reasons: There being no special law governing damage

by air-navigation, it becomes necessary to prove negligence on the

part of the aviator or promoter. The idea that the mere undertaking of

a business, acknowledged to be dangerous, carries with it

responsibility for all damage caused thereby, is not law. The only

duty which the hazardousness of the undertaking imposes upon the

person engaged therein, is that of extra care. Otherwise, almost all

kinds of transportation would be impossible.

In this case, the trip had commenced during exceptionally fine

weather, which continued until after the time when the ship had been

landed and anchored. Defendant had proved that on former occasions he

had succeeded in landing, anchoring and holding his ship, even when

the weather was unfavorable, and that the means he on such occasions

had employed in keeping the ship at its moorings, were not any

stronger than those employed on this occasion; in fact, they were

weaker. It could not be demanded of the defendant that he should

anticipate and provide against such an extraordinary violent gust of

wind as tore his airship away.” 75 Central Law Journ. 311 (1912).

In Charing Cross Co. _v._ London Hydraulic Power Co., [1914] 3 K. B.

772, hydraulic mains under the streets burst and injured plaintiff’s

cables, also laid in the streets. Lord Sumner said (pp. 779–780): “I

think that this present case is also indistinguishable from Rylands

_v._ Fletcher. Two grounds of distinction have been suggested. It is

said that the doctrine of Rylands _v._ Fletcher is applicable between

the owners of adjacent closes, which are adjacent whether there be any

intermediate property or not; and that it is a doctrine depending upon

the ownership of land and the rights attaching to the ownership of

land, under which violations of that species of right can be prevented

or punished. In the present case instead of having two adjacent owners

of real property, you have only two neighboring owners, not strictly

adjacent, of chattels, whose chattels are there under a permission

which might have been obtained by the private license of the owners of

the soil, though in fact obtained under parliamentary powers; hence

the two companies are in the position of co-users of a highway, or at

any rate of co-users of different rooms in one house, and Rylands _v._

Fletcher does not apply. The case depends on doctrines applicable to

the highways, or to houses let out in tenements. I am unable to agree

with any of these distinctions, though they have been pressed upon us

by both learned counsel with great resource and command of the

authorities. Midwood _v._ Manchester Corporation, [1905] 2 K. B. 597,

is not decided as a case of a dispute arising between the owners of

two adjacent closes. The case is treated as one between a corporation,

whose business under the roadway is exactly similar to that of the

defendant corporation here, and injured occupiers of the premises. If

the distinction drawn between the present case and that of adjacent

landowners in Rylands _v._ Fletcher be a good one, it either was not

taken in Midwood _v._ Manchester Corporation or was taken and treated

as of no importance. Further I am satisfied that Rylands _v._ Fletcher

is not limited to the case of adjacent freeholders. I shall not

attempt to show how far it extends. It extends as far as this case,

and that is enough for the present purpose.”

See Thayer, Liability Without Fault, 29 Harv. Law Rev. 801; Bohlen,

The Rule in Rylands _v._ Fletcher, 59 University of Pennsylvania Law

Rev. 298, 373, 423; Wigmore, Responsibility for Tortious Acts: Its

History, 7 Harv. Law Rev. 315, 383, 442.

_Liability in case of customary or statutory duty or authority_ to use

land as defendant did, see Madras R. Co. _v._ Zemindar, L. R. 1 Ind.

App. 364; Green _v._ Chelsea Waterworks Co., 70 L. T. 547; Price _v._

South Metropolitan Gas Co., 65 L. J. Q. B. N. S. 126; City _v._

Bridgeport Hydraulic Co., 81 Conn. 84.

Footnote 289:

Argument abridged.

Footnote 290:

The judgment of the Court below, read by BRAMWELL, B., states the

finding thus: “In this case I understand the jury to have found that

all reasonable care had been taken by the defendant, that the banks

were fit for all events to be anticipated, and the weirs broad enough;

that the storm was of such violence as to be properly called the act

of God, or _vis major_.”

Footnote 291:

See Salmond, Torts (4 ed.) § 65.

Footnote 292:

Arguments omitted.

Footnote 293:

See Carstairs _v._ Taylor, L. R. 6 Ex. 217; Wilson _v._ Newberry, L.

R. 7 Q. B. 31; Rickards _v._ Lothian, [1913] A. C. 263.

Footnote 294:

Actiesselskabet Ingrid _v._ Central R. Co., (C. C. A.) 216 Fed. 72

(explosives); Judson _v._ Giant Powder Co., 107 Cal. 549 (explosives);

Lake Shore R. Co. _v._ Chicago R. Co., 48 Ind. App. 584 (semble);

Owensboro _v._ Knox, 116 Ky. 451 (electricity); Murphy _v._ Gillum, 73

Mo. App. 478 (semble); Losee _v._ Buchanan, 51 N. Y. 476 (boiler);

Cosulich _v._ Standard Oil Co., 122 N. Y. 118 (petroleum); Huff _v._

Austin, 46 Ohio St. 386 (boiler); Pennsylvania Coal Co. _v._

Sanderson, 113 Pa. St. 126 (semble); Sowers _v._ McManus, 214 Pa. St.

244 (explosives); Davis _v._ Charleston R. Co., 72 S. C. 112 (boiler)

_Accord_.

_Bursting of dam_, see: Alabama Coal & Iron Co. _v._ Turner, 145 Ala.

639; Todd _v._ Cochell, 17 Cal. 97; Shrewsbury _v._ Smith, 12 Cush.

177; City Water Power Co. _v._ City, 113 Minn. 33; King _v._ Miles

City Co., 16 Mont. 463; Livingston _v._ Adams, 8 Cow. 175; Lapham _v._

Curtis, 5 Vt. 371. Compare Pennock _v._ Central R. Co., 159 App. Div.

517.

_As to constitutionality of legislation imposing liability without

fault_, see City _v._ Sturges, 222 U. S. 313, 322; Pittsburgh R. Co.

_v._ Home Ins. Co., 183 Ind. 355; Daugherty _v._ Thomas, 174 Mich.

371; Ives _v._ South Buffalo R. Co., 201 N. Y. 271, 295–298.

Footnote 295:

See Cahill _v._ Eastman, 18 Minn. 324; Madras R. Co. _v._ Zemindar of

Carvatenagarum, L. R. 1 Ind. App. 364.—Reporter’s Note.

Footnote 296:

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

Footnote 297:

_Damage through escape of gas from pipes_, see: Gould _v._ Winona Gas

Co., 100 Minn. 258; Taylor _v._ St. Joseph Gas Co., 185 Mo. App. 537;

Morgan _v._ United Gas Co., 214 Pa. St. 109; Windish _v._ Peoples Gas

Co., 248 Pa. St. 236.

Footnote 298:

Herndon _v._ Stultz, 124 Ia. 734 Accord. But see Indiana, Burns’ Ann.

Stat., 1914, §§ 5524–5525; Texas, McEachin’s Civil Stat., arts.

6601–6602.

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

Cal. 162.

Footnote 299:

Argument omitted.

Footnote 300:

Edwards _v._ Massingill, 3 Ala. App. 406; Kansas City R. Co. _v._

Wilson, (Ark.) 171 S. W. 484; Bullock _v._ Porter, 2 Boyce, 180;

Talmadge _v._ Central R. Co., 125 Ga. 400; Beckham _v._ Seaboard Ry.,

127 Ga. 550; Pittsburgh R. Co. _v._ Culver, 60 Ind. 469; Brummit _v._

Furness, 1 Ind. App. 401; Hanlon _v._ Ingram, 3 Ia. 81; Johnson _v._

Veneman, 75 Kan. 278; Needham _v._ King, 95 Mich. 303; Bolton _v._

Calkins, 102 Mich. 69; Steffens _v._ Fisher, 161 Mo. App. 386; Bock

_v._ Grooms, 2 Neb. Unoff. 803; Read _v._ Pennsylvania R. Co., 44 N.

J. Law, 280; Clark _v._ Foot, 8 Johns. 421; Stuart _v._ Hawley, 22

Barb. 619; Hitchcock _v._ Riley, 44 Misc. 260; McDermott _v._

Consolidated Ice Co., 44 Pa. Super. Ct. 445; Pfeiffer _v._ Aue, 53

Tex. Civ. App. 98; Waldy _v._ Preston Mill Co., 80 Wash. 25; Fahn _v._

Reichart, 8 Wis. 255 _Accord_.

_Fires set by locomotives._ As to liability for fires set by

locomotives, there is a conflict. One view is that the plaintiff must

establish negligence, as in other cases. Garrett _v._ Southern R. Co.,

(C. C. A.) 101 Fed. 102; Pittsburgh R. Co. _v._ Hixon, 110 Ind. 225

(changed by statute); Louisville R. Co. _v._ Haggard, 161 Ky. 317;

Wallace _v._ New York R. Co., 208 Mass. 16 (_res ipsa loquitur_

inapplicable); New England Box Co. _v._ New York R. Co., 210 Mass.

465; Fero _v._ Buffalo R. Co., 22 N. Y. 209; Peck _v._ New York R.

Co., 165 N. Y. 347; Campbell _v._ Baltimore R. Co., 58 Pa. Super. Ct.

241.

Another view is that proof that the fire was due to sparks or coals

from an engine makes a _prima facie_ case of negligence or even casts

upon the company the burden of disproving negligence. McCullen _v._

Chicago R. Co., (C. C. A.) 101 Fed. 66; Woodward _v._ Chicago R. Co.,

(C. C. A.) 145 Fed. 577 (statute); Erickson _v._ Pennsylvania R. Co.,

(C. C. A.) 170 Fed. 572 (statute); Alabama R. Co. _v._ Johnston, 128

Ala. 283; St. Louis R. Co. _v._ Trotter, 89 Ark. 273 (changed by

statute); Florida R. Co. _v._ Welch, 53 Fla. 145 (statute); Southern

R. Co. _v._ Thompson, 129 Ga. 367 (statute); Osburn _v._ Oregon R.

Co., 15 Idaho, 478; American Strawboard Co. _v._ Chicago R. Co., 177

Ill. 513; Kennedy _v._ Iowa Ins. Co., 119 Ia. 29 (statute); Atchison

R. Co. _v._ Geiser, 68 Kan. 281; Fuller _v._ Chicago R. Co., 137 La.

997; Dyer _v._ Maine R. Co., 99 Me. 195; Baltimore R. Co. _v._ Dorsey,

37 Md. 19; Continental Ins. Co. _v._ Chicago R. Co., 97 Minn. 467;

Alabama R. Co. _v._ Barrett, 78 Miss. 432; Miller _v._ St. Louis R.

Co., 90 Mo. 389; Rogers _v._ Kansas City R. Co., 52 Neb. 86; Laird

_v._ Connecticut R. Co., 62 N. H. 254 (statute); Goodman _v._ Lehigh

R. Co., 78 N. J. Law, 317 (statute); North Fork Lumber Co. _v._

Southern R. Co., 143 N. C. 324; Missouri R. Co. _v._ Gentry, 31 Okl.

579 (but changed by statute); Anderson _v._ Oregon R. Co., 45 Or. 211;

Hutto _v._ Seaboard Ry., 81 S. C. 567; Gulf R. Co. _v._ Johnson, 92

Tex. 591; Ide _v._ Boston R. Co., 83 Vt. 66 (statute); Norfolk R. Co.

_v._ Thomas, 110 Va. 622; Thorgrimson _v._ Northern R. Co., 64 Wash.

500; Jacobs _v._ Baltimore R. Co., 68 W. Va. 618; Moore _v._ Chicago

R. Co., 78 Wis. 120.

In other jurisdictions there is a statutory absolute liability for

such fires. St. Louis R. Co. _v._ Cooper, 120 Ark. 595; British Assur.

Co. _v._ Colorado R. Co., 52 Col. 589; Martin _v._ New York R. Co., 62

Conn. 331; Pittsburgh R. Co. _v._ Chappell, 183 Ind. 141; Stewart _v._

Iowa R. Co., 136 Ia. 182; Murphy _v._ St. Louis R. Co., 248 Mo. 28;

Baltimore R. Co. _v._ Kreager, 61 Ohio St. 312; Midland R. Co. _v._

Lynn, 38 Okl. 695; MacDonald _v._ New York R. Co., 23 R. I. 558;

Peoples Oil Co. _v._ Charleston R. Co., 83 S. C. 530; Jensen _v._

South Dakota R. Co., 25 S. D. 506.

Footnote 301:

State _v._ General Stevedoring Co., 213 Fed. 51; Kinney _v._ Koopman,

116 Ala. 310; Kleebauer _v._ Western Fuse Co., 138 Cal. 497; Simpson

_v._ Du Pont Powder Co., 143 Ga. 465; Barnes _v._ Zettlemoyer, 25 Tex.

Civ. App. 468 _Accord_.

French _v._ Center Creek Powder Co., 173 Mo. App. 220 _Contra_.

Compare Sloss-Sheffield Steel Co. _v._ Prosch, 190 Ala. 290; Flynn

_v._ Butler, 189 Mass. 377; Reilly _v._ Erie R. Co., 72 App. Div. 476.

Footnote 302:

Only part of case is given. Argument omitted.

Footnote 303:

Statement and arguments omitted.

Footnote 304:

Wright _v._ Malden R. Co., 4 All. 283; Nelson _v._ Burnham & Morrill

Co., 114 Me. 213; Fluker _v._ Ziegele Brewing Co., 201 N. Y. 40; Beck

_v._ Vancouver R. Co., 25 Or. 32 _Accord_. See also Newcomb _v._

Boston Protective Department, _ante_, p. 391; Bourne _v._ Whitman,

_ante_, p. 400, note 1.

Platte & Denver Canal Co. _v._ Dowell, 17 Col. 376: Richardson _v._ El

Paso Min. Co., 51 Col. 440; Lindsay _v._ Cecchi, 3 Boyce, 133; Toledo

R. Co. _v._ O’Connor, 77 Ill. 391; United States Brewing Co. _v._

Stoltenberg, 211 Ill. 531; Presto-Lite Co. _v._ Skeel, 182 Ind. 593;

Correll _v._ Burlington R. Co., 38 Ia. 120; Schlereth _v._ Missouri R.

Co., 96 Mo. 509; Brannock _v._ Elmore, 114 Mo. 55; Olson _v._ Nebraska

Tel. Co., 83 Neb. 735; Texas R. Co. _v._ Brown, 11 Tex. Civ. App. 503;

Smith _v._ Milwaukee Builders’ Exchange, 91 Wis. 360 _Contra_.

In Evers _v._ Davis, 86 N. J. Law, 196, 202, GARRISON, J., says:

“The question then is, What is, upon common law principles, the effect

of statutes such as the one we are considering upon the action of

negligence? The familiar expressions that the breach of such a statute

is ‘negligence _per se_’ or is ‘_prima facie_ evidence of negligence’

seem to me to postpone elucidation rather than to contribute to it,

while the implication that proof of a breach of a public statute will

support a private recovery is positively misleading.

A fact constantly to be borne in mind in tracing the legal effect of

such statutes is that the negligence that is essential to the action

of negligence is not solely in the overt act that produced the injury

complained of, but may lie in the failure to foresee the danger likely

to result from the doing of such act. ‘Danger, reasonably to be

foreseen at the time of acting, is the established test of negligence’

says the writer already cited. Of negligence of this sort it may be

said that it is common to all phases of the action, which cannot be

said of the mere overt act, which may not be an act of neglect or

omission at all, but, on the contrary, one of affirmative commission,

e. g., the blowing of a locomotive whistle (Bittle _v._ Camden and

Atlantic Railroad Co., 55 N. J. L. 615), the discharge of steam (Mumma

_v._ Easton and Amboy Railroad Co., 73 Id. 653) or the extraordinary

lurching of a train (Burr _v._ Pennsylvania Railroad Co., 64 Id. 30).

But whether the overt act be one of omission or of commission, and

whether the conduct of the defendant be stated in terms of ‘duty’ or

of ‘fault,’ the one common denominator, so to speak, of the action of

negligence is this element of what we may call discoverable danger;

that is to say, a danger that is susceptible of being discovered in

advance of action or inaction by the exercise of that degree of care

which if a man fails to exercise he becomes civilly liable for the

consequences of his conduct. Now, it is precisely upon this element of

discoverable danger that public statutes or ordinances act, and they

do this not by giving to the plaintiff a right of action he did not

have before, but by their operation upon what we may call the common

law conscience of the defendant, better known to us in its personified

form of ‘the ordinary prudent man,’ the familiar fiction designed by

the common law to aid juries, when deciding what was the proper thing

for a man to do, to lose sight of the personal point of view of that

particular man and to base their judgment upon a general standard

which in the final assize is what the jury itself thinks was the

proper thing to do.

Now this ordinary prudent man of common law creation must in the

nature of things be regarded as a law-abiding citizen to whom, as is

pointed out by Dean Thayer in the article referred to, it would be an

unjust reproach to suppose that, knowing the statute—for upon familiar

principles he can claim no benefit from his ignorance of it—he would

break it, _reasonably_ believing that it was a prudent thing for him

to do; and that in all probability no harm would come of it.

In other words, it is inconsistent with ordinary prudence for an

individual to set up his private judgment against that of the lawfully

constituted public authority. We must assume, therefore, that the

ordinary prudent man would not do such a thing since to do so would be

to change his entire nature and to forego the very traits that brought

him into existence. He would, in fine, cease to be the pattern man he

must continue to be in order to be at all.

Upon common law principles, therefore, when the legislature has by

public statute established a certain standard of conduct in order to

prevent a danger that it foresaw, it has in this regard forewarned the

‘ordinary prudent man’ and through him the defendant in a civil

action, whose conduct must always coincide with this common law

criterion. Such danger, therefore, does not have to be proved by the

plaintiff, since there is no longer room for a reasonable difference

of opinion, for by his breach of the statute the defendant, through

his common law conscience, is charged with knowledge that if injury

ensues he will have acted at his peril.

The court therefore should so instruct the jury, whether such

instruction be couched in the terms of the defendant’s duty to perform

or of his culpability for neglect, or of his liability for the result

of his action or inaction, as the case may be; and thus upon common

law principles the plaintiff in an action of negligence obtains the

benefit of the statute if he be one of the class for whose protection

it was enacted and the breach of such statute was the efficient cause

of the injury of which he complains.”

In Smith _v._ Mine & Smelter Co., 32 Utah, 21, 30, FRICK, J., says:

“The court instructed the jury in substance that, if they found from

the evidence that the appellant had violated the city ordinance in

respect to keeping or storing explosives, such violation constituted

negligence per se. Counsel insist that such is not the law; that it

would be _prima facie_ negligence at most. As to whether a violation

of a law or ordinance constitutes negligence _per se_ depends in a

large measure upon the nature of the law or ordinance. When a standard

of duty or care is fixed by law or ordinance, and such law or

ordinance has reference to the safety of life, limb, or property,

then, as a matter of necessity, a violation of such law or ordinance

constitutes negligence. In any case the standard is usually defined as

that degree of care that men of ordinary care and prudence usually

exercise. But, when the standard is fixed by law or ordinance, how can

one be heard to say that he exercised care in exceeding, or in

refraining to comply with, the standard fixed? There is, in such

cases, no comparison to be made. Care and prudence alone cannot

excuse. Exceeding or disregarding the standard of care imposed must be

held to be negligence, if it is anything. If it is held not to be such

_per se_, it simply amounts to this: That it is for the jury to say

whether, in violating a law or ordinance fixing a standard of care to

be observed the law was carefully or negligently violated. The

violation, thus in and of itself, would mean nothing, and one would be

permitted to violate the law with impunity, provided the jury find it

to have been carefully done. Neither is it an answer to say that the

violation may have been caused by the act of God or unavoidable

accident. If such be the case, then the act constituted no violation

in law, and when there is no violation there would be no negligence

arising out of such act or acts alone, and the jury would be required

to find whether the act or acts complained of constituted a violation,

as above indicated, or not. If they found that the law was

disregarded, but that it was occasioned by a higher power or through

unavoidable accident, then there would be no violation by the person

charged, and hence no negligence imputable to him from that act alone.

But if they found that he had violated the law by his own act, or by

the acts of others chargeable to him, then there would be negligence

_per se_. This negligence, however, standing alone, is not civilly

actionable. The negligence must in all cases be found to be the

proximate cause of the injury. The court instructed the jury that

unless they found that the negligence, if they found negligence as

above stated, was the proximate cause of the injury complained of, the

respondent could not recover. This, we think, is a correct statement

of the law pertaining to ordinances such as the one in question here.

We do not hold that a violation of all laws or ordinances constitutes

negligence _per se_, but we do hold that the violation of ordinances

designed for the safety of life, limb, or property, does constitute

negligence _per se_, and this, we think, is supported by the clear

weight of authority.”

It is sometimes said that violation of a duty so imposed is “_prima

facie_ evidence of negligence;” Giles _v._ Diamond State Iron Co., 7

Houst. 453; True _v._ Woda, 104 Ill. App. 15; Wabash R. Co. _v._

Kamradt, 109 Ill. App. 203; Mize _v._ Rocky Mountain Tel. Co., 38

Mont. 521; Briggs _v._ New York R. Co., 72 N. Y. 26; Acton _v._ Reed,

104 App. Div. 507.

A distinction between a statute and a municipal ordinance has been

urged. Philadelphia R. Co. _v._ Ervin, 89 Pa. St. 71; Lederman _v._

Pennsylvania R. Co., 165 Pa. St. 118; Riegert _v._ Thackery, 212 Pa.

St. 86.

In Ubelmann _v._ American Ice Co., 209 Pa. St. 398, 400, BROWN, J.,

says:

“When negligence is charged it must be proved. Proof of the violation

of an ordinance regulating or relating to conduct alleged to have been

negligent is not in itself conclusive proof of the negligence charged.

The ordinance and its violation are matters of evidence, to be

considered with all other evidence in the case: Lane _v._ Atlantic

Works, 111 Mass. 136. But this rule is limited to cases in which the

ordinance relates to the alleged negligent act under investigation.

Here, as stated, it was the use of an alleged defective shifting rod

in the elevator. Ordinances and their violation are admissible, not as

substantive and sufficient proof of the negligence of the defendant,

but as evidence of municipal expression of opinion, on a matter as to

which the municipal authorities had acted, that the defendant was

negligent, and are to be taken into consideration with all the other

facts in the case. Illustrations of this are found in several of our

later cases. In Lederman _v._ Pennsylvania Railroad Co., 165 Pa. 118,

one of the questions was the undue rate of speed at which the

defendant company was running its cars through the city of Lancaster,

and we held that the ordinance in relation to the speed of railway

trains within the city limits had been properly admitted. An ordinance

of the city of Philadelphia requires all vehicles, including bicycles,

to keep to the right, and, in Foote _v._ American Product Co., 195 Pa.

190, where the rider of the bicycle had conformed to this ordinance,

and the driver of the wagon that ran into him had not, we said,

through our Brother Mestrezat: ‘While the ordinance in itself was not

evidence of negligence, it may be considered with other evidence in

ascertaining whether the defendant was guilty of negligence.’ When the

suit is against the municipality itself, and it is charged with

negligence, due to the dereliction of its employees, their violation

or disregard of its own regulations and ordinances relating to the

matter under investigation are proof of such dereliction, though not

necessarily of the specific negligence charged, which, as in all other

cases, must be proved by proper and satisfactory evidence. The

dereliction of the municipal employees is to be taken into

consideration with the other facts in the case, upon proof of which

the plaintiff relies to sustain his allegation of negligence. An

illustration of this is Herron _v._ The City of Pittsburg, 204 Pa.

509, which was an action against the city to recover damages for

personal injuries sustained by a boy from contact with a live, naked

telephone wire used in the police service of the city, and it appeared

that the break in the wire was known to the police officials within an

hour after it had occurred, and that it was also known to them to be

in close proximity to other wires, some of which carried strong and

dangerous currents of electricity. We regarded as proper the admission

of the ordinance of the city and the rules of the police department

relating to the inspection and use of the city wires.

The ordinance of April 10, 1894, provides for the inspection of

elevators by inspectors duly appointed by the city of Philadelphia,

and makes it the duty of the owner or operator of an elevator, after

its inspection, to procure from the inspector a certificate that it is

in condition to be operated, and to expose the certificate to public

view as near as possible to the elevator car. This ordinance does not

make it the duty of one owning or operating an elevator to demand an

inspection, and it is only after the inspector has inspected that he

must procure and expose the certificate. But, even if there had been

an inspection here, and the defendant company had not procured and

exposed the proper certificate, its failure to do so is not the

negligence charged against it that resulted in the plaintiff’s injury,

and the ordinance clearly had no proper place in his evidence.”

_Breach of rules of a private corporation_, see Hoffman _v._ Cedar

Rapids R. Co., 157 Ia. 655; Stevens _v._ Boston R. Co., 184 Mass. 476;

Virginia R. Co. _v._ Godsey, 117 Va. 167.

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

Footnote 305:

Arguments omitted.

Footnote 306:

Steel Car Forge Co. _v._ Chec, (C. C. A.) 184 Fed. 868; Great Southern

R. Co. _v._ Chapman, 80 Ala. 615; Lindsay _v._ Cecchi, 3 Boyce, 133;

Gibson _v._ Leonard, 143 Ill. 182; Browne _v._ Siegel, 90 Ill. App. 49

(aff’d on another ground, 191 Ill. 226); Presto-Lite Co. _v._ Skeel,

182 Ind. 593; Kidder _v._ Dunstable, 11 Gray, 342; Curwen _v._

Bofferding, 133 Minn. 28; Koch _v._ Fox, 71 App. Div. 288; Kuhnen _v._

White, 102 App. Div. 36; Ledbetter _v._ English, 166 N. C. 125;

Dobbins _v._ Missouri R. Co., 91 Tex. 60; Stacy _v._ Knickerbocker Ice

Co., 84 Wis. 614; Derouso _v._ International Harvester Co., 157 Wis.

32 _Accord_.

Compare Hartnett _v._ Boston Store, 265 Ill. 331, with Pizzo _v._

Wiemann, 149 Wis. 285; Beauchamp _v._ Burn Mfg. Co., 250 Ill. 303,

with Berdos _v._ Tremont Mills, 209 Mass. 489.

Footnote 307:

In Cowley _v._ Newmarket Local Board, [1892] A. C. 345, 351, Lord

Herschell said:

“My Lords, the question which arises in this action is whether the

defendants are liable in respect of an accident which happened to the

plaintiff, owing to the existence of a drop of eighteen inches in the

level of a footway vested in the defendants, in consequence of which

the plaintiff fell and sustained considerable injury. The difference

of level in the footway arose from a carriage-way having been made for

the purpose of access to Captain Machell’s stable, the yard of which

adjoined the footway. This work was executed by Captain Machell in the

year 1873. The plaintiff in his statement of claim asserted that the

defendants had wrongfully suffered and permitted the footway to be out

of repair and in a condition dangerous to passengers. It appeared

clearly at the trial that there had been no misfeasance on the part of

the defendants. The utmost that could be charged against them was

nonfeasance. It was strongly urged at the bar that the highway

including the footway being vested in the defendants, they were

responsible if it was not kept in proper condition and repair to any

one who was injured by reason of its not being so kept. In support of

their contention they relied mainly on the 144th and 149th sections of

the Public Health Act, 1875. By the former of those sections every

urban authority is to execute the office of surveyor of highways, and

to exercise and be subject to all the powers, duties, and liabilities

of surveyors. By the latter it is provided that the urban sanitary

authority shall from time to time cause all streets vested in them to

be levelled, paved, metalled, flagged, channelled, altered, and

repaired as occasion may require. Amongst the duties thus imposed upon

the urban authority was undoubtedly the duty of keeping this highway

in repair, and it is said that any person injured by the

non-performance of a statutory duty is entitled to recover against the

person on whom that duty rests. I entertain very grave doubts whether

the proposition thus broadly stated can be maintained. The principal

authority in support of it is the decision of the Court of Queen’s

Bench in the case of Couch _v._ Steel, 3 E. & B. 402. But in the case

of Atkinson _v._ Newcastle Waterworks Company, 2 Ex. D. 441, the late

Lord Cairns and Cockburn, C. J., and the present Master of the Rolls

all expressed serious doubts whether the case of Couch _v._ Steel was

rightly decided, and whether the broad general proposition could be

supported, that whenever a statutory duty is created any person who

can show he has sustained injury from the non-performance of that duty

can maintain an action for damages against the person on whom the duty

is imposed. I share the doubt expressed by these learned judges and

the opinion expressed by Lord Cairns that much must ‘depend on the

purview of the Legislature in the particular statute and the language

which they have there employed.’ In the case of Glossop _v._ Heston

and Isleworth Local Board, 12 Ch. D. 102, 109, James, L. J., made some

observations bearing on this point, which seem to me to be of great

weight. In that case the plaintiff claimed an injunction to restrain a

nuisance on the ground that the defendants had neglected to perform

the statutory duty cast on them as the sanitary authority of a

particular district. The learned Lord Justice said: ‘It appears to me

that if this action could be sustained it would be a very serious

matter indeed for every ratepayer in England in any district in which

there is any local authority upon whom duties are cast for the benefit

of the locality. If this action could be maintained, I do not see why

it could not, in a similar manner, be maintained by every owner of

land in that district who could allege that if there had been a proper

system of sewage his property would have been very much improved.’ And

he expressed the opinion that such a contention was not supported

either by principle or authority. It is to be observed that the

Highway Act, which defines the duties of surveyors of highways,

prescribes the mode of proceeding when the duty of repairing the

highway is unfulfilled and the liability which is then to attach to

the surveyor. By sect. 94 he may be summoned before the justices, and

if it appears either upon the report of a person appointed by them to

view, or on their own view, that the highway is not in a state of

thorough and perfect repair, they are to convict the surveyor in a

penalty, and to make an order on the surveyor to repair it within a

limited time; and if the repairs are not made within the time so

limited the surveyor is to forfeit and pay to a person to be named and

appointed in a second order a sum of money equal to the cost of

repairing the highway. I think it, to say the least, doubtful whether,

apart from the reason to which I am about to refer, the contention

that an action lies against the local board for a breach of their

statutory duty to repair the highways can be maintained.”

Sydney Municipal Council _v._ Bourke, [1895] A. C. 433; Maguire _v._

Liverpool Corporation, [1905] 1 K. B. 767 _Accord_. But compare Dawson

_v._ Bingley Urban District Council, [1911] 2 K. B. 149.

_Statutory duty to repair street or sidewalk_, see Manchester _v._

Hartford, 30 Conn. 118; Kirby _v._ Boylston Market, 14 Gray, 249;

Rochester _v._ Campbell, 123 N. Y. 405.

Footnote 308:

“A person who sells, gives away, or disposes of, any poison, or

poisonous substance, without attaching to the vial, box, or parcel

containing such poisonous substance, a label, with the name and

residence of such person, the word ‘poison,’ and the name of such

poison, all written or printed thereon, in plain and legible

characters, is guilty of a misdemeanor.”—Minnesota Penal Code, section

329.

“No person shall sell at retail any poisonous commodity recognized as

such, and especially” [here enumerating various poisons], “without

affixing to the box, bottle, vessel or package containing the same,

and to the wrapper or cover thereof, a label bearing the name ‘poison’

distinctly shown, together with the name and place of business of the

seller.... Any person failing to comply with the requirements of this

section shall be deemed guilty of a misdemeanor, and shall be liable

to a fine of not less than five (5) dollars for each and every such

omission.”—Minnesota Laws, 1885, chap. 147, section 14.

Footnote 309:

Couch _v._ Steel, 3 E. & B. 402; Salisbury _v._ Herchenroder, 106

Mass. 458; Parker _v._ Barnard, 135 Mass. 116; Marino _v._ Lehmaier,

173 N. Y. 530; Westervelt _v._ Dives, 220 Pa. St. 617 _Accord_.

Compare Nugent _v._ Vanderveer, 38 Hun, 487.

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

Footnote 310:

Arguments omitted. Only so much of the opinion is given as relates to

a single point.

Footnote 311:

Groves _v._ Wimborne, [1898] 2 Q. B. 402; Cowen _v._ Story & Clark

Co., 170 Ill. App. 92; Andersen _v._ Settergren, 100 Minn. 294; Schaar

_v._ Conforth, 128 Minn. 460 _Accord_. Compare Stehle _v._ Jaeger

Machine Co., 220 Pa. St. 617; Drake _v._ Fenton, 237 Pa. St. 8.

Footnote 312:

Arguments of counsel omitted.

Footnote 313:

Bischof _v._ Illinois R. Co., 232 Ill. 446; Frontier Steam Laundry Co.

_v._ Connolly, 72 Neb. 767; Hocking R. Co. _v._ Phillips, 81 Ohio St.

453 _Accord_.

_Breach of statutory duty toward third person_, see Gibson _v._

Leonard, 143 Ill. 182; Woodruff _v._ Bowen, 136 Ind. 431; Bott _v._

Pratt, 33 Minn. 323; Kelly _v._ Muhs, 71 N. J. Law, 348; Beehler _v._

Daniels, 19 R. I. 49. Compare Racine _v._ Morris, 201 N. Y. 240.

In Stanley _v._ Atchison R. Co., 88 Kan. 84, MASON, J., says:

“The evidence tended to show these facts: Stanley kept a number of

cattle in a feed lot one side of which was formed by the right-of-way

fence. Employees of the company who were engaged in its repair removed

a part of it, as well as a part of Stanley’s fence which connected

with it, and as a temporary protection strung two wires across the

gap. The protection was insufficient and the cattle escaped. None of

them was injured upon the right of way, but a number strayed and were

not recovered, and others suffered injury, in some cases fatal.

The defendant maintains that in any view of the findings the judgment

ought not to be reversed, for the reason that the petition does not

state a cause of action, because the company was under no obligation

to maintain the fence, except for the purpose of avoiding liability

for animals killed or injured by its trains, and therefore cannot be

held accountable for any other kind of loss occasioned by the want of

a sufficient fence. The original statute upon the subject does not in

terms require a railroad right of way to be fenced. It makes the

company responsible for animals killed or injured by the operation of

its railway irrespective of negligence, except where the road is

enclosed with a lawful fence.... The later statute imposed a duty on

the railroad company to maintain the fence, and it is liable for any

injury of which its neglect of such duty is the proximate cause....

The defendant urges that the purpose of the statute referred to is to

promote safety in the running of trains; that in this purpose is found

the only warrant for imposing upon the railroad company the obligation

to fence its right of way; and that therefore the company’s liability

must be limited to injuries resulting from the operation of the road,

and the state has no power to make it liable for losses occasioned by

the escape of animals which do not meet with any injury upon the right

of way. Assuming that the right of the legislature to require a

railroad company to fence its tracks is based solely upon the

consideration that such fencing may be deemed necessary to diminish

the danger of injury to animals from the operation of trains, and to

persons and property resulting from trains colliding with animals, it

is competent as a means of enforcing such requirement to make the

company liable for losses occasioned to the landowner by the escape of

his cattle through a defective fence, although they pass from the

right of way without injury.”

_Liability to licensee in case of breach of statutory duty as to

condition of premises_, see Sheyer _v._ Lowell, 134 Cal. 357.

_Liability to trespassers_, see Nelson _v._ Burnham & Morrill Co., 114

Me. 213; Flanagan _v._ Sanders, 138 Mich. 253; Hamilton _v._

Minneapolis Desk Co., 78 Minn. 3; Bennett _v._ Odell Mfg. Co., 76 N.

H. 180. Compare Butz _v._ Cavanaugh, 137 Mo. 503.

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

336.

Footnote 314:

By “Lord Tenterden’s Act,” 9 Geo. IV. ch. 14, s. 6, it is provided,

that no action shall be brought to charge any person upon any

representation made concerning the character, conduct, credit,

ability, trade, or dealings of any other person, to the intent that

such other person may obtain credit, money, or goods, unless such

representation “be made in writing, signed by the party to be charged

therewith.” Statutes of a similar nature have been enacted in some of

the United States.

Footnote 315:

Only part of the opinion is printed.

Footnote 316:

Cf. Lillegren _v._ Burns, 135 Minn. 60.

Footnote 317:

Statement abridged. Only part of opinion is given.

Footnote 318:

In Aaron’s Reefs Ltd. _v._ Twiss, [1896] A. C. 273, 280–281, Lord

Halsbury, L. C., says: “I must protest against it being supposed that

in order to prove a case of this character of fraud, and that a

certain course of conduct was induced by it, a person is bound to be

able to explain with exact precision what was the mental process by

which he was induced to act. It is a question for the jury. If a man

said he was induced by such and such an inducement held out in the

prospectus, I should not think that conclusive. It must be for the

jury to say what they believed upon the evidence. Looking at the

evidence in this case, I should say if I were a juryman that this was

a very fascinating prospectus, and was calculated to induce any one

who believed the statements in it to invest his money in the concern.”

In Mathews _v._ Bliss, 22 Pick. 48, Shaw, C. J., says: “The judge

further instructed the jury, that in order to maintain this action,

they must be satisfied that the defendants had made the false

representation, and that the sale was produced by means of it; that it

was not necessary that it should be the sole and only motive inducing

the sale, but it must have been a predominant one. In this particular,

the Court are of opinion, that the direction, as it may have been and

probably was understood by the jury, was not strictly correct; though

it may have been so qualified and illustrated as to prevent the jury

from being misled by it.

The term ‘predominant,’ in its natural and ordinary signification, is

understood to be something greater or superior in power and influence

to others, with which it is connected or compared. So understood, a

predominant motive, when several motives may have operated, is one of

greater force and effect, in producing the given result, than any

other motive. But the Court are of opinion, that if the false and

fraudulent representation was a motive at all, inducing to the act, if

it was one of several motives, acting together, and by their combined

force producing the result, it should have been left to the jury so to

find it. If the false suggestion had no influence, if the plaintiff’s

agent would have done the same thing and made the sale if such

representation had not been made, then it was not a motive to the act,

and the plaintiff’s agent was not induced to sell by means of it. On

the whole, considering that the ordinary and natural meaning of the

term ‘predominant,’ when applied to one among several motives, is such

as has been stated, that the jury may have so understood it, and if

they did so understand it, they may have come to a verdict not

warranted by law, upon the evidence before them, the Court are of

opinion, that the verdict ought to be set aside, and a new trial

granted.”

Footnote 319:

The case has been much abridged, and the greater part of the report

omitted.

Footnote 320:

Cockrill _v._ Hall, 65 Cal. 326; United States Home Co. _v._ O’Connor,

48 Col. 354; Lynch _v._ Hall, 41 Conn. 238; Jones _v._ Crawford, 107

Ga. 318; Hinchey _v._ Starrett, 91 Kan. 181; Oldham _v._ Bentley, 6 B.

Mon. 428; Price _v._ Read, 2 Har. & G. 291; Adams _v._ Anderson, 4

Har. & J. 558; Sweet _v._ Kimball, 166 Mass. 332; Garry _v._ Garry,

187 Mass. 62; McElrath _v._ Electric Investment Co., 114 Minn. 358;

Holmes _v._ Wilkes, 130 Minn. 170; Cerny _v._ Paxton Co., 78 Neb. 134;

Gabriel _v._ Graham, 168 App. Div. 847; American Hosiery Co. _v._

Baker, 18 Ohio Cir. Ct. R. 604; Standard Elevator Co. _v._ Wilson, 218

Pa. St. 280; Bowe _v._ Gage, 127 Wis. 245 _Accord_. See also Wilson

_v._ Yocum, 77 Ia. 569.

Footnote 321:

Arguments and part of opinion omitted.

Footnote 322:

Harriage _v._ Daley, 121 Ark. 23; Dickinson _v._ Atkins, 100 Ill. App.

401; McAllister _v._ Indianapolis R. Co., 15 Ind. 11; Welshbillig _v._

Dienhart, 65 Ind. 94; Long _v._ Woodman, 58 Me. 49; Davis _v._

Reynolds, 107 Me. 61; Bullock _v._ Wooldridge, 42 Mo. App. 356;

Wolters _v._ Fidelity Trust Co., 73 N. J. Law, 57 _Accord_. See also

Bennett _v._ McIntire, 121 Ind. 231.

In Adams _v._ Gillig, 199 N. Y. 314, plaintiff sued in equity for

cancellation of a conveyance procured by falsely representing that

defendant intended to build a dwelling on the land, when his real

intention was to build a garage. Chase, J., said (pp. 320–322): “A

promise as such to be enforceable must be based upon a consideration,

and it must be put in such form as to be available under the rules

relating to contracts and the admission of evidence relating thereto.

It may include a present intention, but as it also relates to the

future it can only be enforced as a promise under the general rules

relating to contracts.

A mere statement of intention is a different thing. It is not the

basis of an action on contract. It may in good faith be changed

without affecting the obligations of the parties. A statement of

intention does not relate to a fact that has a corporal and physical

existence, but to a material and existing fact nevertheless not

amounting to a promise but which as in the case under discussion

affects and determines important transactions. The question here under

discussion is not affected by the rules relating to the admission of

testimony. As it was not promissory and contractual in its nature

there is nothing in the rules of evidence to prevent oral proof of the

representations made by the defendant to the plaintiff. In an action

brought expressly upon a fraud, oral evidence of facts to show the

fraud is admissible. (Pomeroy’s Equity Jurisprudence, Sec. 889.)

This case stands exactly as it would have stood if the plaintiff and

defendant before the execution and delivery of the deed had entered

into a writing by which the defendant had stated therein his intention

as found by the court on the trial and the plaintiff had stated her

acceptance of his offer based upon her belief and faith in his

statement of intention, and it further appeared that the statement was

so made by the defendant for the purpose of inducing the plaintiff to

sell to him the lot, and that such statement was so made by him

falsely, fraudulently and purposely for the purpose of bringing about

such sale.

Intent is of vital importance in very many transactions. In the

criminal courts it is necessary in many cases for jurors to determine

as a question of fact the intent of the person charged with the crime.

Frequently the life or liberty of the prisoner at the bar depends upon

the determination of such question of fact. In civil actions relating

to wrongs, the intent of the party charged with the wrong is

frequently of controlling effect upon the conclusion to be reached in

the action. The intent of a person is sometimes difficult to prove,

but it is nevertheless a fact and a material and existing fact that

must be ascertained in many cases, and when ascertained determines the

rights of the parties to controversies. The intent of Gillig was a

material existing fact in this case, and the plaintiff’s reliance upon

such fact induced her to enter into a contract that she would not

otherwise have entered into. The effect of such false statement by the

defendant of his intention cannot be cast aside as immaterial simply

because it was possible for him in good faith to have changed his mind

or to have sold the property to another who might have a different

purpose relating thereto. As the defendant’s intention was subject to

change in good faith at any time it was of uncertain value. It was,

however, of some value. It was of sufficient value so that the

plaintiff was willing to stand upon it and make the conveyance in

reliance upon it.

The use of property in a particular manner changes from time to time

and restrictive covenants of great value at one time may become a

source of serious embarrassment at a later date. The fact that

restrictive covenants cannot ordinarily be drawn to bend to changed

conditions has made many purchasers disinclined to accept conveyances

with such covenants. A restrictive covenant in a deed may be of

sufficient importance to justify a refusal by a contractee to accept a

conveyance subject to such conditions. A person in selling property

may be quite willing to execute and deliver a deed thereof without

putting restrictive covenants therein and in reliance upon the good

faith of express, unqualified assurances of the present intention of

the prospective purchaser. In such case the intention is material and

the statement of such intention is the statement of an existing fact.

Unless the court affirms this judgment, it must acknowledge that

although a defendant deliberately and intentionally, by false

statements, obtained from a plaintiff his property to his great damage

it is wholly incapable of righting the wrong, notwithstanding the fact

that by so doing it does in no way interfere with the rules that have

grown up after years of experience to protect written contracts from

collateral promises and conditions not inserted in the contract.

We are of the opinion that the false statements made by the defendant

of his intention should, under the circumstances of this case, be

deemed to be a statement of a material, existing fact of which the

court will lay hold for the purpose of defeating the wrong that would

otherwise be consummated thereby.”

Footnote 323:

Butler _v._ Watkins, 13 Wall. 456; Rogers _v._ Virginia-Carolina

Chemical Co., (C. C. A.) 149 Fed. 1; Sallies _v._ Johnson, 85 Conn.

77; McLaughlin _v._ Thomas, 86 Conn. 252; Olson _v._ Smith, 116 Minn.

430; Herndon _v._ Durham R. Co., 161 N. C. 650; Blackburn _v._

Morrison, 29 Okl. 510 _Accord_.

Grubb _v._ Milan, 249 Ill. 456; Murray _v._ Smith, 42 Ill. App. 548;

Chambers _v._ Mitchell, 123 Ill. App. 595; Younger _v._ Hoge, 211 Mo.

444 _Contra_.

In Commonwealth _v._ Althause, 207 Mass. 32, 47–49, Loring, J., says:

“As a general proposition of law apart from statutes making it a crime

to obtain property by a false pretence, it would seem that a man’s

present intention as to a future act is a fact. Edgington _v._

Fitzmaurice, 29 Ch. D. 459. Swift _v._ Rounds, 19 R. I. 527. In the

first of these two cases (Edgington _v._ Fitzmaurice) Bowen, L. J.,

said, at p. 483: ‘The state of a man’s mind is as much a fact as the

state of his digestion.’ And Chapman, C. J., in Commonwealth _v._

Walker, 108 Mass. 309, 312, said: ‘A man’s intention is a matter of

fact, and may be proved as such....’

But in the case at bar the presiding judge went beyond any decided

case in the explanation which he gave of the difference between the

representation of a person’s present intention as to a future act and

an assurance or promise that the future act shall be done. For the

purpose of illustrating the essential difference between the two he

put as an example of obtaining property by a false pretence a case

which is not obtaining property by a false pretence. In effect he told

the jury that if A buys property intending not to pay for it he

obtains that property by a false pretence. In that case A makes no

representation at all. All that he does is to make a promise, and a

promise is not a representation of a fact. It has been sought to make

out that in legal contemplation a promise with an intention not to

perform is a false pretence because a promise to do a thing of

necessity implies a present intention to do it, and therefore whenever

you have a promise coupled with an intent not to perform you have an

implied false representation of an intention to do the act which the

defendant promised to do and so a false pretence. And this finds some

apparent support in Swift _v._ Rounds, 19 R. I. 527. In that case it

was held that where a defendant buys property intending not to pay for

it he is liable in an action of deceit because he impliedly represents

that he intends to pay for it by the act of buying. It may be doubted

whether the making of a promise implies of necessity in all cases a

present intention to perform that promise. Upon that question we do

not find it necessary to express an opinion. For however that may be,

the fraud of obtaining property by buying it intending not to pay for

it is not, as matter of construction of the statute creating it, the

crime of obtaining property by a false pretence.... It is evident that

the fraud (which by enacting that statute the Legislature intended to

make a crime) was obtaining the property of another by a false

statement of a fact; and it is equally evident that in enacting it the

Legislature did not have in mind the fraud of buying goods not

intending to pay for them. Both are frauds but they are not the same

fraud. In our opinion it was the former alone which the Legislature

had in mind in making it a crime to obtain property by a false

pretence.”

_As to whether intention at the time of the contract or at the time of

delivery of the goods_ is to be regarded, see _In re_ Levi, 148 Fed.

654; Whitten _v._ Fitzwater, 129 N. Y. 626.

Footnote 324:

See Gardner _v._ State, 4 Ala. App. 131; Syracuse Knitting Co. _v._

Blanchard, 69 N. H. 447.

Footnote 325:

Statement abridged. Part of opinion omitted.

Footnote 326:

As to “promissory representations,” see also Sawyer _v._ Prickett, 19

Wall. 146; Sallies _v._ Johnson, 85 Conn. 77; Carter _v._ Orne, 112

Me. 365; Pedrick _v._ Porter, 5 All. 324; Pile _v._ Bright, 156 Mo.

App. 301.

_Known impossible prophecy by one having superior knowledge_, see

Murray _v._ Tolman, 162 Ill. 417; French _v._ Ryan, 104 Mich. 625;

Hedin _v._ Minneapolis Institute, 62 Minn. 146.

Footnote 327:

Only part of the case is given.

Footnote 328:

But see Davis _v._ Reynolds, 107 Me. 61.

In Van Epps _v._ Harrison, 5 Hill, 63, 70–71, Bronson, J., says: “If

an affirmation concerning the cost of the property was of any

consequence, I think the defendant should have taken the trouble to

inquire and satisfy himself. But I cannot think it a matter of any

legal importance. It was only another mode of asserting that the

property was of the value of $32,000; and all the books agree that no

action will lie if such an affirmation prove false. It is the folly of

the purchaser to trust to it. Indeed, the representation here amounts

to less than a direct affirmation of value, for it only asserts that

the plaintiff and another man agreed that such was the value. It would

lead to great mischief to allow men to annul contracts upon such a

ground. If the defendant could make out that the plaintiff was his

agent in purchasing from Van Rensselaer, then what the plaintiffs said

about the price he paid might be material; but not in any other point

of view.

Such are my views upon this branch of the case; but my brethren are of

opinion that the false affirmation concerning the price paid for the

land furnishes a good ground of action. There must, therefore, be a

new trial upon this point, as well as the one relating to the

condition of the land.”

_As to “puffing,”_ see: Mumford _v._ Tolman, 157 Ill. 258; Miller _v._

Craig, 36 Ill. 109; Wightman _v._ Tucker, 50 Ill. App. 75; Woods _v._

Nicholas, 92 Kan. 258; Buckingham _v._ Thompson, 135 S. W. 652.

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

_Statements as to value_, see: Harvey _v._ Young, Yelverton, 21; Lake

_v._ Loan Assn., 72 Ala. 207; Stevens _v._ Alabama Land Co., 121 Ala.

450; Kincaid _v._ Price, 82 Ark. 20; Williams _v._ McFadden, 23 Fla.

143; Noetling _v._ Wright, 72 Ill. 390; Cagney _v._ Cuson, 77 Ind.

494; Bossingham _v._ Syck, 118 Ia. 192; Else _v._ Freeman, 72 Kan.

666; Reynolds _v._ Evans, 123 Md. 365; Picard _v._ McCormick, 11 Mich.

68; Doran _v._ Eaton, 40 Minn. 35; Boasberg _v._ Walker, 111 Minn.

445; Union Bank _v._ Hunt, 76 Mo. 439; Dalrymple _v._ Craig, 149 Mo.

345; Dresher _v._ Becker, 88 Neb. 619; Sandford _v._ Handy, 23 Wend.

260; Ellis _v._ Andrews, 56 N. Y. 83; Van Slochem _v._ Villard, 207 N.

Y. 587; Mecum _v._ Becker, 166 App. Div. 793; Campbell _v._ Zion’s

Real Estate Co., 46 Utah, 1; Shanks _v._ Whitney, 66 Vt. 405.

Compare Moon _v._ Benton, 13 Ala. App. 473; Pate _v._ Blades, 163 N.

C. 267; Crompton _v._ Beedle, 83 Vt. 287.

Footnote 329:

Portions of the opinion are omitted.

Footnote 330:

Gordon _v._ Butler, 105 U. S. 553; Kimber _v._ Young, (C. C. A.) 137

Fed. 744; Pittsburgh Life & Trust Co. _v._ Northern Ins. Co., 140 Fed.

888, 148 Fed. 674; Dotson _v._ Kirk, (C. C. A.) 180 Fed. 14; Rendell

_v._ Scott, 70 Cal. 514; Wrenn _v._ Truitt, 116 Ga. 708; Dowden _v._

Wilson, 108 Ill. 257; Curry _v._ Keyser, 30 Ind. 214; Conant _v._

Nat’l State Bank, 121 Ind. 323; Scroggin _v._ Wood, 87 Ia. 497; Vokes

_v._ Eaton, 119 Ky. 913; Holbrook _v._ Connor, 60 Me. 578; Bishop _v._

Small, 63 Me. 12; Donnelly _v._ Baltimore Trust Co., 102 Md. 1; Mooney

_v._ Miller, 102 Mass. 217; Nash _v._ Minnesota Title & Trust Co., 159

Mass. 437; Lynch _v._ Murphy, 171 Mass. 307; Nowlin _v._ Snow, 40

Mich. 699; Myers _v._ Alpena Loan Ass’n, 117 Mich. 389; Getchell _v._

Dusenbury, 145 Mich. 197; Perkins _v._ Trinka, 30 Minn. 241; Brown

_v._ South Joplin Min. Co., 194 Mo. 681; Ray County Bank _v._ Hutton,

224 Mo. 42; Fisher _v._ Seitz, 172 Mo. App. 162; Duffany _v._

Ferguson, 66 N. Y. 482; Hatton _v._ Cook, 166 App. Div. 257; Pritchard

_v._ Dailey, 168 N. C. 330; Martin _v._ Eagle Creek Development Co.,

41 Or. 448; Watts _v._ Cummins, 59 Pa. St. 84; Horrigan _v._ First

Nat. Bank, 9 Baxt. 137; Jude _v._ Woodburn, 27 Vt. 415; Randall _v._

Farnum, 52 Vt. 539; Romaine _v._ Excelsior Machine Co., 54 Wash. 41;

Crislip _v._ Cain, 19 W. Va. 438 _Accord_.

Compare Wall _v._ Graham, 192 Ala. 396; Barron Estate Co. _v._

Woodruff Co., 163 Cal. 561; Phelps _v._ Grady, 168 Cal. 73; Sleeper

_v._ Smith, 77 N. H. 337; Olston _v._ Oregon R. Co., 52 Or. 343.

_Opinion of third person_, see Adams _v._ Collins, 196 Mass. 422.

Footnote 331:

Jarratt _v._ Langston, 99 Ark. 438; Baum _v._ Holton, 4 Col. App. 406;

Shelton _v._ Healy, 74 Conn. 265; Kenner _v._ Harding, 85 Ill. 264;

Dwight _v._ Chase, 3 Ill. App. 67; Wightman _v._ Tucker, 50 Ill. App.

75; Coulter _v._ Clark, 160 Ind. 311; Stauffer _v._ Hulwick, 176 Ind.

410; Beck _v._ Goar, 180 Ind. 81; Automobile Co. _v._ Crowell, 149 N.

W. 861; Hetland _v._ Bilstad, 140 Ia. 411; Picard _v._ McCormick, 11

Mich. 68; Nowlin _v._ Snow, 40 Mich. 699; McDonald _v._ Smith, 139

Mich. 211; Conlan _v._ Roemer, 52 N. J. Law, 53; Bacon _v._ Frisbie,

15 Hun, 26; Marshall _v._ Seelig, 49 App. Div. 433; Ganow _v._ Ashton,

32 S. D. 458; Rodee _v._ Seaman, 33 S. D. 184; Rorer Iron Co. _v._

Trout, 83 Va. 397; Fitzgerald _v._ Frankel, 109 Va. 603; Grant _v._

Huschke, 74 Wash. 257 _Accord_.

Footnote 332:

Winkler _v._ Jerrue, 20 Cal. App. 555; Hodgkins _v._ Dunham, 10 Cal.

App. 690; Olvey _v._ Jackson, 106 Ind. 286; Crane _v._ Elder, 48 Kan.

259; Gurney _v._ Tenney, 197 Mass. 457; Van de Wiele _v._ Garbade, 60

Or. 585; Corey _v._ Boynton, 82 Vt. 257; Simons _v._ Cissna, 52 Wash.

115 _Accord_. Compare Foster _v._ Kennedy, 38 Ala. 359; Sheer _v._

Hoyt, 13 Cal. App. 662; Judy _v._ Jester, 53 Ind. App. 74; Burr _v._

Willson, 22 Minn. 206; Adan _v._ Steinbrecher, 116 Minn. 174.

Footnote 333:

Arguments omitted.

Footnote 334:

See also Nevada Bank _v._ Portland Nat. Bank, 59 Fed. 338.

In Aaron’s Reefs _v._ Twiss, [1896] A. C. 273, Lord Halsbury, L. C.,

said (pp. 283–284): “I do not think any particular form of words is

necessary to convey a false impression. Supposing a person goes to a

bank where the people are foolish enough to believe his words, and

says, ‘I want a mortgage upon my house, and my house is not completed,

but in the course of next week I expect to have it fully completed.’

Suppose there was not a house upon his land at all, and no

possibility, therefore, that it could be fully completed next week,

can anybody say that that was not an affirmative representation that

there was a house which was so near to completion that it only

required another week’s work upon it to complete it? Could anybody

defend himself if he was charged upon an indictment for obtaining

money under false pretences, the allegation in the indictment being

that he pretended that there was a house so near completion that it

only required a week’s work upon it, by saying that he never

represented that there was a house there at all? So here, when I look

at the language in which this prospectus is couched, and see that it

speaks of a property which requires only the erection of machinery to

be either at once or shortly in a condition to do work so as to obtain

all this valuable metal from the mine, it seems to me that, although

it is put in ambidextrous language, it means as plainly as can be that

this is now the condition of the mine, that such and such additions to

it will enable it shortly to produce all those great results, and that

that is a representation of an actually existing fact. I should quite

agree with the proposition that the Lord Chancellor of Ireland and the

Master of the Rolls put forward—if you are looking to the language as

only the language of hope, expectation, and confident belief, that is

one thing; but it does not seem to have been in the minds of the

learned judges that you may use language in such a way as, although in

the form of hope and expectation, it may become a representation as to

existing facts; and if so, and if it is brought to your knowledge that

these facts are false, it is a fraud.”

Footnote 335:

The statement has been abridged.

Footnote 336:

Loewer _v._ Harris, (C. C. A.) 57 Fed. 368; King _v._ White, 119 Ala.

429; Christy _v._ Campbell, 36 Col. 261; Kronfeld _v._ Missal, 87

Conn. 491; James _v._ Crosthwait, 97 Ga. 673; Gordon _v._ Irvine, 105

Ga. 144; Aortson _v._ Ridgway, 18 Ill. 23; Dayton _v._ Kidder. 105

Ill. App. 107; Craig _v._ Hamilton, 118 Ind. 565; Firestone _v._

Werner, 1 Ind. App. 293; Coles _v._ Kennedy, 81 Ia. 360; Howerton _v._

Augustine, 130 Ia. 389; Nairn _v._ Ewalt, 51 Kan. 355; Faris _v._

Lewis, 2 B. Mon. 375; Weikel _v._ Sterns, 142 Ky. 513; Prentiss _v._

Russ, 16 Me. 30; Barrett _v._ Lewiston R. Co., 110 Me. 24; Johnston

_v._ Cope, 3 Har. & J. 89; Burns _v._ Dockray, 156 Mass. 135; Batty

_v._ Greene, 206 Mass. 561; Kenyon _v._ Woodruff, 33 Mich. 310;

Tompkins _v._ Hollister, 60 Mich. 470; Busch _v._ Wilcox, 82 Mich.

315; Marsh _v._ Webber, 13 Minn. 109; Thomas _v._ Murphy, 87 Minn.

358; McAdams _v._ Cates, 24 Mo. 223; Morley _v._ Harrah, 167 Mo. 74;

Manter _v._ Truesdale, 57 Mo. App. 435; Stevens _v._ Fuller, 8 N. H.

463; Fleming _v._ Slocum, 18 Johns. 403; Allen _v._ Addington, 7 Wend.

9; March _v._ First National Bank, 4 Hun, 466; Brown _v._ Gray, 6

Jones Law, 103; Lunn _v._ Shermer, 93 N. C. 164; Gidney _v._ Chappell,

26 Okl. 737; Fitzhugh _v._ Nirschl, 77 Or. 514; Rheen _v._ Naugatuck

Wheel Co., 33 Pa. St. 356; Cardwell _v._ McClelland, 3 Sneed, 150;

Allison _v._ Tyson, 5 Humph. 449; Graham _v._ Stiles, 38 Vt. 578;

Maynard _v._ Maynard, 49 Vt. 297; Crompton _v._ Beedle, 83 Vt. 287;

Jarrett _v._ Goodnow, 39 W. Va. 602; Morgan _v._ Hodge, 145 Wis. 143

_Accord_. Compare: Randolph _v._ Allen, (C. C. A.) 73 Fed. 23; Ball

_v._ Farley, 81 Ala. 288; Cherry _v._ Brizzolara, 89 Ark. 309; Roper

_v._ Sangamon Lodge, 91 Ill. 518; Potts _v._ Chapin, 133 Mass. 276;

Cochrane _v._ Halsey, 25 Minn. 52; Crowell _v._ Jackson, 53 N. J. Law,

656; Babcock _v._ Libbey, 82 N. Y. 144; Jones _v._ Stewart, 62 Neb.

207; Wicker _v._ Worthy, 51 N. C. 500; Harris _v._ Tyson, 24 Pa. St.

347; Iron Bank _v._ Anderson, 194 Pa. St. 205; Bishop _v._ Buckley, 33

Pa. Super. Ct. 123; Campbell _v._ Kinlock, 9 Rich. Law, 300.

In Wiser _v._ Lawler, 189 U. S. 260, Brown, J., said (pp. 264–65):

“Attached to these prospectuses was a map entitled ‘Map of the group

of mines belonging to the Seven Stars Gold Mining Company.’ It is true

that there is neither in the prospectuses nor in the map a distinct

assertion that the legal title to the properties mentioned was vested

in the Seven Stars Company; but we think that no one can read them

without inferring and believing that the Seven Stars was the owner of

these properties, and that the net proceeds of their operation would

be distributed in dividends to stockholders. As they were circulated

as an inducement to take stock in the enterprises, we are bound to

interpret them by the effect they would produce upon an ordinary mind.

Andrews _v._ Mockford, (1896) 1 Q. B. D. 372. They were, however, even

more damaging in their omissions than in their statements. No mention

was made of the fact that the title to these properties stood in the

names of Lawler and Wells; no allusion to the Cowland agreement, with

its provisions for forfeiture, nor to the fact that the only interest

of the company was an equitable right to the properties after the sum

of $450,000 had been realized from the profits and paid to defendants.

In estimating the probability of subscribers being misled by these

prospectuses we may take into consideration not only the facts stated,

but the facts suppressed. New Brunswick Co. _v._ Muggeridge, 1 Drewey

& Smale, 363. They are entitled to know the _cons_ as well as the

_pros_. Gluckstein _v._ Barnes, (1900) App. Cas. 240; Hubbard _v._

Weare, 79 Iowa, 678; Hayward _v._ Leeson, 175 Mass. 310; In re Leeds

and Hanley Theatres, (1902) 2 Ch. Div. 809.”

In Peek _v._ Gurney, L. R. 6 H. L. 377, Lord Cairns said (p. 403):

“Mere non-disclosure of material facts, however morally censurable,

however that non-disclosure might be a ground in a proper proceeding

at a proper time for setting aside an allotment or a purchase of

shares, would in my opinion form no ground for an action in the nature

of an action for misrepresentation. There must, in my opinion, be some

active misstatement of fact, or, at all events, such a partial and

fragmentary statement of fact, as that the withholding of that which

is not stated makes that which is stated absolutely false.”

Compare Mitchell, J., in Newell _v._ Randall, 32 Minn. 171, 172–73:

“It is doubtless the general rule that a purchaser, when buying on

credit, is not bound to disclose the facts of his financial condition.

If he makes no actual misrepresentations, if he is not asked any

questions, and does not give any untrue, evasive, or partial answers,

his mere silence as to his general bad pecuniary condition, or his

indebtedness, will not constitute a fraudulent concealment. 2 Pom. Eq.

Jur. §906; Bigelow on Fraud, 36, 37. But this was not a case of mere

passive non-disclosure. The object of De Laittre’s inquiry clearly was

to ascertain Bauman’s financial condition and ability to pay. Bauman’s

statement was in response to that inquiry, and, when he undertook to

answer, he was bound to tell the whole truth, and was not at liberty

to give an evasive or misleading answer, which, although literally

true, was partial, containing only half the truth, and calculated to

convey a false impression. The natural construction which would, under

the circumstances, be put on this statement is that he had $3,300

capital in his business. It was couched in language calculated to

negative the idea that this was merely the gross amount of his assets,

and that he owed debts to the extent of two-thirds or the whole of

that amount. Such a statement, made under the circumstances it was,

might fairly and reasonably be understood as amounting to a

representation that he had that amount of capital which was and would

remain available, out of which to collect any debt which he might

contract with plaintiff. We think this is the way in which men would

ordinarily have understood it. It is immaterial that more explicit

inquiries by plaintiff would have disclosed the fact of his

indebtedness. It does not lie in Bauman’s mouth to say that plaintiff

relied too implicitly on this general statement. To tell half a truth

only is to conceal the other half. Concealment of this kind, under the

circumstances, amounts to a false representation.”

Footnote 337:

The statement is taken from 37 Ch. D. 541, omitting the last part.

Arguments are omitted. None of the opinions are given except portions

of LORD HERSCHELL’S.

Footnote 338:

The opinion of STIRLING, J., is reported in 37 Ch. D. 550. See

especially 556–558.

Footnote 339:

“Want of honest belief in the truth of what one asserts, not positive

knowledge that it is false, is the essence of the wrong. A man who

knows that he is making a reckless assertion about things of which he

really knows nothing may not be speaking against his own belief, but

he is not speaking according to it, and therefore his conduct is

dishonest, and is esteemed fraud by the law.” Pollock, Law of Fraud in

British India, 43.

Footnote 340:

For a criticism of the view that the directors all believed the

statement, see 6 Law Quarterly Rev. 73; 5 Law Quarterly Rev. 420–422.

Footnote 341:

Schuchardt _v._ Allens, 1 Wall. 359; Union R. Co. _v._ Barnes, (C. C.

A.) 64 Fed. 80; Pittsburgh Life & Trust Co. _v._ Northern Life Ins.

Co., (C. C. A.) 148 Fed. 674; Foster _v._ Kennedy, 38 Ala. 359; Morton

_v._ Scull, 23 Ark. 289; Hutchinson _v._ Gorman, 71 Ark. 305; Davidson

_v._ Jordan, 47 Cal. 351; Bartholomew _v._ Bushnell, 20 Conn. 271;

Fooks _v._ Waples, 1 Har. (Del.) 131; Manes _v._ Kenyon, 18 Ga. 291;

Cooley _v._ King, 113 Ga. 1163; Wheeler _v._ Randall, 48 Ill. 182;

Holdom _v._ Ayer, 110 Ill. 448; Herman _v._ Foster, 185 Ill. App. 97;

Holmes _v._ Clark, 10 Ia. 423; Scroggin _v._ Wood, 87 Ia. 497; Boddy

_v._ Henry, 113 Ia. 462; Farmers’ Stock Breeding Ass’n _v._ Scott, 53

Kan. 534; Campbell _v._ Hillman, 15 B. Mon. 508; Haynes _v._ Gould, 83

Me. 344; Cahill _v._ Applegarth, 98 Md. 493; Emerson _v._ Brigham, 10

Mass. 197; Pike _v._ Fay, 101 Mass. 134; Cole _v._ Cassidy, 138 Mass.

437; Holst _v._ Stewart, 154 Mass. 445; Lillegren _v._ Burns, 135

Minn. 60; Taylor _v._ Frost, 39 Miss. 328; Utley _v._ Hill, 155 Mo.

232; Allen _v._ Wanamaker, 31 N. J. Law, 370; Williams _v._ Wood, 14

Wend. 126; Marsh _v._ Folker, 40 N. Y. 562; Wakeman _v._ Dalley, 51 N.

Y. 27; Kountze _v._ Kennedy, 147 N. Y. 124; Hamrick _v._ Hogg, 1 Dev.

350; Taylor _v._ Leith, 26 Ohio St. 428; Staines _v._ Shore, 16 Pa.

St. 200; Erie Iron Works _v._ Barber, 106 Pa. St. 125; Lamberton _v._

Dunham, 165 Pa. St. 129; Deppen _v._ Light, 228 Pa. St. 79; Gibbs _v._

Odell, 2 Cold. 132; Weeks _v._ Burton, 7 Vt. 67 _Accord_.

In Heilbut _v._ Buckleton, [1913] A. C. 30, Lord Moulton said (p. 48):

“In the history of English law we find many attempts to make persons

responsible in damages by reason of innocent misrepresentations, and

at times it has seemed as though the attempts would succeed. On the

Chancery side of the Court the decisions favoring this view usually

took the form of extending the scope of the action for deceit. There

was a tendency to recognize the existence of what was sometimes called

‘legal fraud,’ i. e., that the making of an incorrect statement of

fact without reasonable grounds, or of one which was inconsistent with

information which the person had received or had the means of

obtaining, entailed the same legal consequences as making it

fraudulently. Such a doctrine would make a man liable for

forgetfulness or mistake or even for honestly interpreting the facts

known to him or drawing conclusions from them in a way which the Court

did not think to be legally warranted. The high-water mark of these

decisions is to be found in the judgment pronounced by the Court of

Appeal in the case of Peek _v._ Derry, (1887) 37 Ch. D. 541; (1889) 14

App. Cas. 337, when they laid down that where a defendant has made a

misstatement of fact and the Court is of opinion that he had no

reasonable grounds for believing that it was true he may be made

liable in an action of deceit if it has materially tended to induce

the plaintiff to do an act by which he has incurred damage. But on

appeal to your Lordships’ House this decision was unanimously

reversed, and it was definitely laid down that, in order to establish

a cause of action sounding in damages for misrepresentation, the

statement must be fraudulent or, what is equivalent thereto, must be

made recklessly, not caring whether it be true or not. The opinions

pronounced in your Lordships’ House in that case show that both in

substance and in form the decision was, and was intended to be, a

reaffirmation of the old common law doctrine that actual fraud was

essential to an action for deceit, and it finally settled the law that

an innocent misrepresentation gives no right of action sounding in

damages.

“On the Common Law side of the Court the attempts to make a person

liable for an innocent misrepresentation have usually taken the form

of attempts to extend the doctrine of warranty beyond its just limits

and to find that a warranty existed in cases where there was nothing

more than an innocent misrepresentation. The present case is, in my

opinion, an instance of this. But in respect of the question of the

existence of a warranty the Courts have had the advantage of an

admirable enunciation of the true principle of law which was made in

very early days by Holt, C. J., with respect to the contract of sale.

He says: ‘An affirmation at the time of the sale is a warranty,

provided it appear on evidence to be so intended.’ So far as decisions

are concerned, this has, on the whole, been consistently followed in

the Courts of Common Law. But from time to time there have been dicta

inconsistent with it which have, unfortunately, found their way into

text-books and have given rise to confusion and uncertainty in this

branch of the law. For example, one often sees quoted the dictum of

Bayley, J., in Cave _v._ Coleman, 3 Man. & Ry. 2, where, in respect of

a representation made verbally during the sale of a horse, he says

that ‘being made in the course of a dealing, and before the bargain

was complete, it amounted to a warranty’—a proposition that is far too

sweeping and cannot be supported. A still more serious deviation from

the correct principle is to be found in a passage in the judgment of

the Court of Appeal in DeLassalle _v._ Guildford, [1901] 2 K. B. 215,

at p. 221, which was cited to us in the argument in the present case.

In discussing the question whether a representation amounts to a

warranty or not the judgment says: ‘In determining whether it was so

intended, a decisive test is whether the vendor assumes to assert a

fact of which the buyer is ignorant, or merely states an opinion or

judgment upon a matter of which the vendor has no special knowledge,

and on which the buyer may be expected also to have an opinion and to

exercise his judgment.’

“With all deference to the authority of the Court that decided that

case, the proposition which it thus formulates cannot be supported. It

is clear that the Court did not intend to depart from the law laid

down by Holt, C. J., and cited above, for in the same judgment that

dictum is referred to and accepted as a correct statement of the law.

It is, therefore, evident that the use of the phrase ‘decisive test’

cannot be defended. Otherwise it would be the duty of a judge to

direct a jury that if a vendor states a fact of which the buyer is

ignorant, they must, as a matter of law, find the existence of a

warranty, whether or not the totality of the evidence shows that the

parties intended the affirmation to form part of the contract; and

this would be inconsistent with the law as laid down by Holt, C. J. It

may well be that the features thus referred to in the judgment of the

Court of Appeal in that case may be criteria of value in guiding a

jury in coming to a decision whether or not a warranty was intended;

but they cannot be said to furnish decisive tests, because it cannot

be said as a matter of law that the presence or absence of those

features is conclusive of the intention of the parties. The intention

of the parties can only be deduced from the totality of the evidence,

and no secondary principles of such a kind can be universally true.

“It is, my Lords, of the greatest importance, in my opinion, that this

House should maintain in its full integrity the principle that a

person is not liable in damages for an innocent misrepresentation, no

matter in what way or under what form the attack is made. In the

present case the statement was made in answer to an inquiry for

information. There is nothing which can by any possibility be taken as

evidence of an intention on the part of either or both of the parties

that there should be a contractual liability in respect of the

accuracy of the statement. It is a representation as to a specific

thing and nothing more. The judge, therefore, ought not to have left

the question of warranty to the jury, and if, as a matter of prudence,

he did so in order to obtain their opinion in case of appeal he ought

then to have entered judgment for the defendants notwithstanding the

verdict.”

But compare Kirkpatrick _v._ Reeves, 121 Ind. 280; Mendenhall _v._

Stewart, 18 Ind. App. 262; McLeod _v._ Tutt, 2 Miss. 288; Searing _v._

Lum, 2 South, 683; Indianapolis R. Co. _v._ Tyng, 63 N. Y. 653; Cobb

_v._ Fogalman, 1 Ired. 440; Mason _v._ Moore, 73 Ohio St. 275; Loper

_v._ Robinson, 54 Tex. 510; Magill _v._ Coffmann, (Tex. Civ. App.) 129

S. W. 1146; Smith _v._ Columbus Buggy Co., 40 Utah, 580; Ogden Resort

Co. _v._ Lewis, 41 Utah, 183; Cameron _v._ Mount, 86 Wis. 477; Palmer

_v._ Goldberg, 128 Wis. 103; Knudson _v._ George, 157 Wis. 520.

As to whether an action ought not to be allowed for negligence in the

use of language, see Smith, Liability for Negligent Language, 14

Harvard Law Rev. 184; Cunningham _v._ Pease, 74 N. H. 435; Conway

National Bank _v._ Pease, 76 N. H. 319. The English Directors’

Liability Act (1890), 53 & 54 Vict. c. 64, makes directors and others

who issue prospectuses liable in certain cases to compensate persons

sustaining loss by reason of any untrue statement in the prospectus,

unless it is proved that the persons issuing the prospectus had

reasonable ground to believe and did believe that the prospectus was

true. See also the statute of Oklahoma, Howe _v._ Martin, 23 Okl. 561,

567.